State ex rel. State Highway Commission of Missouri v. Haid

• Citation: 59 S.W.2d 1057,332 Mo. 606
• Decision Date: 19 April 1933
• Docket Number: 32381
• Parties: State ex rel. State Highway Commission, Relator, v. George F. Haid, William Dee Becker and Simon G. Nipper, Judges of the St. Louis Court of Appeals
• Court: United States State Supreme Court of Missouri

59 S.W.2d 1057

332 Mo. 606

State ex rel. State Highway Commission, Relator, v. George F. Haid, William Dee Becker and Simon G. Nipper, Judges of the St. Louis Court of Appeals

No. 32381

Supreme Court of Missouri

April 19, 1933

Writ quashed.

John W. Mather and John C. Collet for relator.

(1) The opinion of the respondents in approving Instruction 1 is in conflict with the controlling decisions of the Supreme Court in the following: Instruction 1 tells the jury that plaintiff is authorized and has a right to take the defendants' land without the defendants' consent and against their will. This is a declaration of an abstract proposition of law, the giving of which in an instruction has been condemned by this court. K. C. Sub. Belt Ry. Co. v. K. C. St. L. & C. Ry. Co., 118 Mo. 617; Wiggington v. Rule, 275 Mo. 450; Bonnine v. Richmond, 75 Mo. 437; Huffman v. Ackley, 34 Mo. 277; Jones v Norman, 248 S.W. 621. (2) Respondents' opinion in holding at page 74 of the abstract of the record that Instruction 2 given for the defendants was proper, is in conflict with the controlling decisions of this court in this: (a) Instruction 2 directed the jury to consider three items of damage: First, the value of the land taken; second the damage or decrease in the value of the remainder of the farm as a whole; and third, the cost and expense of moving buildings and fences; when the rule announced by this court is that all damages in these cases are included in two items -- the value of the land taken and the decrease in the market value of the remainder. Howell v. Jackson County, 262 Mo. 403. (b) Instruction 2 is further erroneous in that it assumes that there is a net damage due the defendants. St. Louis, K. C. & N.W. Ry. Co. v. St. Louis Union Stockyards, 120 Mo. 541; Newby v. Platte County, 25 Mo. 258; Lingo v. Buford, 112 Mo. 149; St. Joseph v. DeWitts, 148 Mo. 217. (c) Respondents' opinion in holding that it was not error for Instruction 2 to assume damages because plaintiff-relator's petition stated that plaintiff had made an effort to agree with defendants, thereby conceding net damages to defendants, is in conflict with the controlling decisions of this court, holding that such an allegation in the petition is necessary and that where benefits are shown to offset damages even a nominal verdict cannot be recovered. United States v. Reed, 56 Mo 572; So. Ill. & Mo. Bridge Co. v. Stone, 194 Mo 187; Newby v. Platte County, 25 Mo. 258; Lingo v. Buford, 112 Mo. 149; St. Joseph v. DeWitts, 148 Mo. 217. (3) Respondents' opinion in holding that the giving of defendants Instruction 2-A was not error, is in conflict with the controlling decisions of this court in this: Instruction 2-A sets out in argumentative form evidentiary facts and does not define the issues. Smith v. Woodmen of the World, 179 Mo. 137; McFadden v. Catron, 120 Mo. 254; K. C. Ry. Co. v. Couch, 187 S.W. 65. (4) Respondents' opinion, in approving the definition of special benefits contained in defendants' Instruction 5, is in conflict with the controlling decisions of this court, because: Instruction 5 defines a special benefit as one which is not common to other lands in the same community, when this court has held that a benefit remains special although received by other lands in the same community (along the highway). State ex rel. v. Jones, 15 S.W.2d 338; State ex rel. v. Duncan, 18 S.W.2d 465; State ex rel. v. Young, 23 S.W.2d 130. (5) Respondents' opinion, in holding that evidence of like benefits to other lands on the highway was proper in determining whether the benefits to the defendants' farm were general or special, conflicts with the rule announced by the Supreme Court. State ex rel. v. Jones, 15 S.W.2d 338; State ex rel. v. Duncan, 18 S.W.2d 465; State ex rel. v. Young, 23 S.W.2d 130.

Spradling & Dalton and Ward & Reeves for respondent.

(1) Relator has overlooked the procedure and purpose of an action of certiorari. The Supreme Court, in certiorari, takes the facts of the case as detailed and found in the opinion of the Court of Appeals; and will not extend its inquiry beyond the opinion and any pleading, instruction or written instrument referred to therein. State ex rel. Railroad v. Reynolds, 286 Mo. 216; State ex rel. United Rys. v. Reynolds, 257 Mo. 36; State ex rel. Wahl v. Reynolds, 272 Mo. 596; State ex rel. Ins. Co. v. Reynolds, 235 S.W. 88; State ex rel. Inv. Co. v. Allen, 242 S.W. 77. It is not the purpose of this writ of certiorari for the Supreme Court to determine whether the Court of Appeals was right or wrong, but the view is limited to whether or not the Court of Appeals' opinion is in conflict with the last ruling of the Supreme Court. State ex rel. S. B. A. v. Cox, 9 S.W.2d 956; State ex rel. Hines v. Calhoun, 281 Mo. 589; State ex rel. v. Allen, 256 S.W. 1049; State ex rel. Calhoun v. Reynolds, 289 Mo. 506; State ex rel. v. Daues, 287 S.W. 609. The Supreme Court, by writ of certiorari, is not concerned with conflict in the Court of Appeals' opinion. State ex rel. Packing Co. v. Reynolds, 287 Mo. 697; State ex rel. Mann v. Trimble, 232 S.W. 100; State ex rel. Inv. Co. v. Allen, 242 S.W. 77. The Supreme Court cannot question the correctness of the opinion of the Court of Appeals, where said court follows the Supreme Court's latest ruling on that question. State ex rel. Assn. v. Reynolds, 226 S.W. 579. In certiorari cases it is immaterial what the Courts of Appeals have said in other cases. State ex rel. Thomas v. Daues, 314 Mo. 13. (2) Instruction 1 complained of is in the approved form, as adopted by the opinions of this court for many years, and the opinion in question is not in conflict with a single case by the Supreme Court of Missouri. (a) This instruction is in the approved form and has been uniformly given and upheld by this court. St. Louis Ry. v. Stout, 160 Mo. 410; St. Louis, etc., Ry. v. Stock Yds., 120 Mo. 552; Chicago Ry. v. Kemper, 256 Mo. 293; South Mo. Bridge Co. v. Stone, 194 Mo. 182; Met. St. Ry. v. Walsh, 197 Mo. 398; Gary v. Averill, 12 S.W.2d 751. (b) Said instruction is usually given by the plaintiff, and is more to the benefit of a plaintiff than a defendant, to inform the jury that the plaintiff is within its legal rights and thereby not prejudice the jury against the plaintiff. Gary v. Averill, 12 S.W.2d 751; Parks v. Railroad, 178 Mo. 120; Pratt v. Conway, 148 Mo. 299. (3) The objection that an instruction assumes a fact not proved is not tenable, where the evidence tends to prove it, and there is no evidence tending to contradict it, and both parties during the trial treat it as a conceded fact. Pope v. Railroad, 99 Mo. 406; Dixon v. Railroad, 104 Mo. 499; Woodson v. Railroad, 224 Mo. 697. This instruction is in the form adopted by the lawyers of this State and approved by the appellate courts. St. Louis Ry. Co. v. Stout, 160 Mo. 410; Chicago Ry. v. Kemper, 256 Mo. 294; State ex rel. Highway v. Jones, 15 S.W.2d 340; St. Louis S.W. Ry. v. Brick Co., 198 Mo. 714. (4) Instruction 2-a properly declares the law and is in conformity with the unanimous holdings of this court. This instruction is copied from approved instructions of the Supreme Court, and by no decisions that we are able to find has it ever been criticised. Kansas City Ry. Co. v. Couch, 187 S.W. 66; Kansas City v. Shumaker, 160 Mo. 432; Chicago Ry. Co. v. Baker, 102 Mo. 561; Chicago Ry. Co. v. Kemper, 256 Mo. 295; Chicago Ry. Co. v. George, 145 Mo. 45; Price v Railroad, 220 Mo. 463; Merrieles v. Railroad, 163 Mo. 483. (5) Instruction 5 followed the ruling of the Supreme Court, and especially the latest decisions, in defining special benefits. This definition of special benefits, as given in this instruction, to-wit: "by special and peculiar benefits are meant such benefits as are not common or general, to other lands in the same community," has been uniformly adopted and approved by the Supreme Court. State ex rel. v. Jones, 15 S.W.2d 340; North D. D. v. Morgan, 18 S.W.2d 440; State ex rel. v. Duncan, 19 S.W.2d 466; State ex rel. v. Young, 23 S.W.2d 130. This rule is in conformity with the following condemnation cases, in which the term was defined and approved by the Supreme Court. Railroad v. Waldo, 70 Mo. 631; So. Ill. & Mo. Bridge Co. v. Stone, 194 Mo. 188; Ripkey v. Binns, 264 Mo. 514; Hickman v. City of Kansas, 120 Mo. 110.

Frank, J. All concur, except Leedy, J., not sitting.

OPINION

FRANK

This case comes to the writer on reassignment. It is a certiorari proceeding in which relator seeks to quash an opinion of the St. Louis Court of Appeals in a case brought by the State Highway Commission against George H. Carothers and others, to condemn a right-of-way through defendants' land for Highway No. 61. The trial resulted in a verdict and judgment in favor of defendants for $ 7,000. That judgment was affirmed by the St. Louis Court of Appeals, and relator is here seeking to quash the opinion of the Court of Appeals on the alleged ground that it conflicts with certain rulings of this court.

Relator's first contention is that the approval of defendants' Instruction No. 1 by the Court of Appeals conflicts with the law as declared by this court in the following cases: K. C. Sub. Belt Ry. Co. v. K. C. St. L. & C. Ry. Co., 118 Mo. 599, 617, 24 S.W. 478; Wiggington v. Rule, 275 Mo. 412, 450, 205 S.W. 168; Bonine v. City of Richmond, 75 Mo. 437; Huffman v. Ackley, 34 Mo. 277.

The opinion of the Court of Appeals sets out the substance of the instruction as follows:

"This instruction, in effect, told the jury that the State Highway Commission 'is authorized and has the right at law to condemn the strip of land in question, to be used as a part of the public road in question, through exceptors' farm and can take the same in this proceeding without the consent and...