State ex rel. State Highway Com'n v. Zahn

• Decision Date: 30 March 1982
• Docket Number: No. WD,WD
• Citation: 633 S.W.2d 185
• Parties: STATE of Missouri, ex rel., STATE HIGHWAY COMMISSION of Missouri, Respondent, v. Virgil P. ZAHN, et al., Exceptions of Perry McKay Brooks, et al., Appellants. 32214.
• Court: Missouri Court of Appeals

Page 185

633 S.W.2d 185

STATE of Missouri, ex rel., STATE HIGHWAY COMMISSION of Missouri, Respondent, v. Virgil P. ZAHN, et al., Exceptions of Perry McKay Brooks, et al., Appellants.

No. WD 32214.

Missouri Court of Appeals, Western District.

March 30, 1982.

Motion for Rehearing and/or Transfer to Supreme Court

Overruled and Denied May

4, 1982.

Application to Transfer Denied June 14, 1982.

Tut Bellamy of Bellamy & Bellamy, Marshall, for appellants.

Bruce A. Ring, Chief Counsel, Earl H. Schrader, Jr. and James B. Jackson, Asst. Counsel, Missouri Highway & Transportation Comm'n, Kansas City, for respondent.

Before SOMERVILLE, C. J., and SHANGLER, DIXON, TURNAGE, MANFORD, KENNEDY and NUGENT, JJ.

MANFORD, Judge.

This appeal follows a jury award for damages in condemnation proceedings. The judgment is affirmed.

Points of error presented, in summary, allege the trial court erred because it (1) permitted counsel to commence argument before instructing the jury; (2) sustained respondent's motion in limine the morning of trial, thus giving respondent an unfair advantage; and (3) sustained respondent's motion in limine, thus excluding evidence as to damages suffered by appellants due to change of access.

These proceedings arose from the acquisition of land for Route 240 in Saline County. The date of taking was January 5, 1973. The appointed commissioners awarded $7,000.00 damages. This sum was drawn down by appellants. The jury entered an award of $5,000.00 and this appeal followed.

This case was argued initially in division before this court, and when agreement could not be reached by the proper procedure, the matter was submitted to an expanded panel. This case illustrates what the court surmises to be a rather common situation, that is, where an award by commissioners is entered, the landowners draw down the funds, the parties individually or collectively file exceptions, and the issue is tried to a jury which enters an award less than the commissioner's award. This situation is precisely what occurred in the instant case. That factor, however, can never be permitted to serve the basis upon which the reviewing court enters its final determination.

Another matter which deserves mention is that neither this court nor any other court is empowered to guess, speculate or hypothesize what any witness at trial might or could have said but did not.

In addition to the foregoing, when this case was argued before an expanded panel, counsel for appellants, when questioned by the court, conceded that the element of damages regarding appellant's easement was in fact submitted to and for consideration by the jury. This factor, as will be observed infra, is important in the disposition of appellants' point (3).

Attention is now directed to appellants' point (1).

In support of point (1), appellants present argument without citing germane authority. The court gave Instruction No. 1 (MAI 2.01) before the trial commenced. At the close of the evidence, appellants' counsel was permitted to proceed with his final argument. Shortly after appellants' counsel began his argument, opposing counsel interrupted and called the court's attention to the failure to instruct the jury. The court recognized the omission, admonished the jury to disregard appellants' counsel's remarks, submitted the proper instructions and permitted counsel to start over with his argument. Appellants contend that this "false start" prejudiced them by precluding the jury from considering their argument. The court did not limit appellants' argument from the point of interruption forward, rather, appellants were permitted to submit their argument in its entirety. As noted above, appellants fail to support their argument with any authority, and research upon this point fails to reveal any authority since the inception of MAI. Reference to pre-MAI authority shows no error when instructions were given after the opening of final argument. Dyer v. Griffith, 261 S.W. 100, 105 (Mo.1924); Shaw v. Mutual Protective Ins. Co., 9 S.W.2d 685, 688 (Mo.App.1928) and Proctor v. Home Trust Co., 221 Mo.App. 577, 284 S.W. 156, 160 (1926); but in light of the mandatory nature of MAI, reliance upon such authority is not warranted.

When the failure to instruct the jury was called to the court's attention, the proper instructions were submitted. MAI 2.03 was submitted first. The notes on use (MAI 2.03) state: "This instruction is to be given in every case as the first instruction after the close of the evidence. It should be numbered Instruction Number 2 following MAI 2.01 which is Instruction Number 1."

While the giving of an instruction in violation of MAI constitutes error, the prejudicial effect is to be judicially determined. Davis v. Moore, 601 S.W.2d 316, 320 (Mo.App.1980); Salsberry v. Archibald Plbg. & Heat. Co. Inc., 587 S.W.2d 907, 915-917 (Mo.App.1979); and Rule 70.02(c). Appellants' citation of Washington v. Sears, Roebuck & Co., 585 S.W.2d 137 (Mo.App.1979) is inapposite. That case holds it is reversible error for the trial court to embellish and interpret MAI 2.01. Such action by the court constituted an impermissible deviation from MAI.

Appellants' counsel was interrupted shortly after commencement of his final argument. The court submitted the proper instructions. ¹ Appellants' counsel was permitted to start again and was not limited to merely continuing his argument from the point of interruption. He started his argument anew, and the jury received the argument in toto. While the court's failure to submit instructions at the close of the evidence and prior to argument (MAI 2.03, Notes on Use) was error, there was no showing of prejudicial effect on appellants under the facts and circumstances of the instant case. Point (1) is found to be without merit and is ruled against appellants.

In their point (2), appellants argue that by sustaining respondent's motion in limine the morning of trial, the trial court gave respondent an unfair trial advantage. The motion, which was offered before trial and sustained by the court, prohibited evidence on the issue of circuitous routes as a matter of compensable damages. This particular motion is further challenged under appellants' point (3), but as it concerns the current alleged error, the challenge is made that the court's sustaining of the motion the morning of trial provided an undue advantage to respondent. Respondent argues that appellants were not disadvantaged by the motion, but instead, benefitted from respondent's not waiting and presenting an objection upon trial to evidence on the issue of circuity of route.

Appellants cite no rule or authority in support of their argument that the motion was untimely. Research has failed to reveal any authority on the point. The absence of citation of authority indicates that there is none. Bishop v. Bishop, 618 S.W.2d 261 (Mo.App.1981); Willett v. Reorganized School District No. 2, 602 S.W.2d 44, 47 (Mo.App.1980); and if a point asserted is one of first impression, litigants are advised to so state, accompanied by an explanation of the lack of citation of authority. Thummel v. King, 570 S.W.2d 679, 687 (Mo.banc 1978). Rule 84.04(d) does not require citation of authority in each instance. However, as observed by the Missouri Court of Appeals for the Southern District, "(the) absence of relevant authority for alleged points of error ordinarily justifies the appellate court to consider the point as being abandoned." Claspill v. City of Springfield, 598 S.W.2d 183, 186 (Mo.App.1980) (citing to Thummel v. King, supra, at 687).

Appellants argue that the timing of the motion (the morning of trial) prevented consideration of leading authority cited in support of the motion. ² This argument, when considered with the fact that this case had been pending some seven years (1973-80) and that the authority cited by respondent was and remains leading authority in condemnation proceedings involving the issue of access, indicates that it is argument without substance or merit.

Point (2) is ruled against appellants.

In their final argument, appellants contend that the court erred in sustaining respondent's motion in limine because in so doing, it prevented appellants from submitting material and relevant evidence as to damages to the subject property resulting from respondent's alteration of appellants' access to the property. The pertinent portions of respondent's motion asked the court to delete the following:

"Reference to any and all damage to the subject property due to the need by the landowner, ... to travel a greater distance to any certain destination due to plaintiff's alteration of defendant's access. Such damages are for a more circuitous route and are, therefore, not compensable and introduction thereof would be error. Christy v. Chicago, Burlington & Quincy RR, 212 S.W.2d 476, 479."

Appellants introduced two warranty deeds. The first deed evinced title to their residential tract. The other deed granted appellants an easement for ingress/egress over a 30-foot strip running north/south from the residential tract. Route 240 cut through this 30-foot strip.

Appellants claimed an exclusive easement by deed and that the 30-foot strip provided their ingress/egress to city streets and thoroughfares. They also claim that respondent's action of severing this 30-foot strip by Route 240 produced damages special to their residential tract and entitled them to compensation for the taking. Respondents contend that since appellants' residential tract had additional ingress/egress, that appellants' claim of damages was for circuity of route.

The 30-foot strip in question can be best described as a 30-foot wide strip running north of a "T" intersection formed by English and Slater Streets in the city of Marshall, Missouri. This strip was referred to as an extension of English Street.

Appellants' claim of exclusiveness by deed became questionable under the evidence. There was no...