St. Louis v. Worthington
| Decision Date | 08 September 1932 |
| Docket Number | No. 31202.,31202. |
| Citation | 52 S.W.2d 1003 |
| Parties | CITY OF ST. LOUIS, Appellant, v. EMILY WORTHINGTON, Executrix of the Estate of JAMES A. WORTHINGTON. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of St. Louis County. — Hon. Julius R. Nolte, Judge.
AFFIRMED.
Julius T. Muench, G. Wm. Senn and Harry H. Richards for appellant.
(1) It is prejudicial error in a jury trial in condemnation to admit evidence which advised the jury of the amount awarded by the commissioners in the case and the fact of service as commissioners, and it is as improper for this to be done indirectly as directly. St. Louis v. Schopp, 325 Mo. 480; St. Louis v. Smith, 325 Mo. 471; Cape Girardeau v. Hunze, 314 Mo. 438; School District v. Phoenix, 297 Mo. 332; Railroad v. Second Street Imp. Co., 256 Mo. 386; Cape Girardeau etc. v. Blechle, 234 Mo. 471; Railroad v. Pfau, 212 Mo. 398: Railway v. Roberts, 187 Mo. 309; Nichols on Eminent Domain (2 Ed.) sec. 431, p. 1136. (2) Under the circumstances of this case, it was error not to permit the jury to visit the locus in quo, and to reprimand counsel before the jury for making an offer to take the jury, under the supervision of the court, to see the same. Kansas City v. Butterfield, 89 Mo. 646; Kansas City v. Hill, 80 Mo. 523: Kansas City v. Street, 36 Mo. App. 666; Washburn v. Railway Co., 59 Wis. 364; Springfield v. Dolby, 139 Ill. 34; Forbes v. United States, 268 Fed. 273; Springer v. Chicago, 135 Ill. 552, 12 L.R.A. 609; Jones' Commentaries on Evidence, sec. 1406; Lewis on Eminent Domain, p. 1107; Nichols on Eminent Domain, p. 1142; Reg v. Sheldon, 32 L.T. (N.S.) 27; Southwich v. Gouch, 263 S.W. 490; Cronkheit v. Dickerson, 51 Mich. 177; Wheeler v. Wallace, 53 Mich. 355; Kleinert v. Federal Brewing Co., 95 N.Y. Supp. 407; 38 Cyc. 1323.
Lubke & Lubke, for respondent.
(1) The commissioners were competent witnesses. St. Louis v. Abeln, 170 Mo. 326; Cape Girardeau v. Hunze, 314 Mo. 438. (2) The mere fact that a witness testifies that he was appointed a commissioner is not reversible error where the record fails to show the contents of the commissioners' report or the amounts assessed by the commissioners as damages. Cape Girardeau v. Hunze, 314 Mo. 438. (3) No objection having been made by plaintiff to the testimony of the witness Dr. S.J. Will that he was one of the commissioners, plaintiff cannot now complain that it was error to permit him to so testify. (4) A view by the jury of the premises in question is not a matter of right, but rests in the discretion of the court, and it is not error to refuse it. Ellis v. Railroad Co., 131 Mo. App. 395; State v. Lewis, 14 Mo. App. 191; Gunn v. Hemphill Lumber Co., 218 S.W. 978; Young v. Pennsylvania F. Ins. Co., 269 Mo. 20; Nery v. Willi, 293 S.W. 500; Clayton v. Railroad Co., 67 Iowa. 238; King v. Railroad Co., 34 Iowa, 458; Beck v. Staats, 80 Neb. 490; Kelpsch v. Donald, 4 Wash. 436; Leidlein v. Meyer, 95 Mich. 586; Pick v. Rubicon Hydraulic Co., 27 Wis. 433; Andrews v. Youmans. 82 Wis. 81; Note, 42 L.R.A. 370. (5) The court, in denying plaintiff's request to view the premises, did not reprimand plaintiff's counsel, and plaintiff was not prejudiced thereby. State v. Teeter, 239 Mo. 475; State v. Duestrow, 137 Mo. 44; State v. Musick, 101 Mo. 260.
This is a condemnation proceeding instituted in the Circuit Court of St. Louis County by the city of St. Louis against James A. Worthington, now deceased, for the purpose of acquiring title to a tract of land containing 105.75 acres, owned by Worthington and situate in St. Louis County. It was necessary for the city to acquire this property in carrying out its plans for the extension of Koch Hospital, a public hospital owned and maintained by the city. The entire tract was taken and as Worthington owned no adjoining land the value of the land taken constituted the measure of the damages to be assessed. The commissioners appointed by the court (Sec. 1342, R.S. 1929) "to assess the damages" which the owner would "sustain by reason of such appropriation" made and filed their report in which they appraised the value of the land, without improvements, at $300 per acre, or a total of $31,725, and appraised the value of the improvements thereon separately at $13,500, making a total award of $45,225. Defendant filed exceptions to the report of the commissioners and demanded a trial by jury, which was granted. The jury returned a verdict awarding damages in the sum of $85,000. We are informed by the statement, found in the briefs, giving the history of this case that to make the remittitur a new trial was ordered on the ground "that the verdict was excessive and against the weight of the evidence as to amount" and the defendant appealed. This court affirmed the order granting a new trial and remanded the cause. [City of St. Louis v. Worthington (Mo.), 19 S.W. (2d) 1066.] Upon the retrial of the cause the verdict of the jury assessed damages in the sum of $68,000 and from the judgment entered thereon plaintiff brings this appeal.
Appellant makes two assignments of error: (1) that the trial court permitted defendant to show that two of plaintiff's witnesses had served as commissioners and admitted evidence upon the cross-examination of these two witnesses "which advised the jury of the amount awarded by the commissioners;" (2) the refusal of plaintiff's request that the jury, under supervision of the court, be permitted to visit and view the land. The commissioners' report, signed by all the commissioners, had assessed the value of the land, without improvements, at $300 per acre. The appellant, City of St. Louis, used two of the commissioners, Dr. S.J. Will and Fred L. Kerth, as witnesses and its first assignment of error relates to the cross-examination of these two witnesses.
On direct examination Dr. S.J. Will testified that he had lived in the vicinity of the land for fifty years, had "owned property" and "watched the trend of values" in that section, was "familiar with the tract" of land taken and valued it "at $210 an acre as of April 2, 1923," the date of the appropriation by plaintiff.
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