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

• Decision Date: 07 March 1932
• Citation: 47 S.W.2d 178,226 Mo.App. 1053
• Parties: STATE OF MISSOURI EX REL. STATE HIGHWAY COMMISSION OF MISSOURI, APPELLANT, v. S. M. RIGGS, RESPONDENT
• Court: Missouri Court of Appeals

47 S.W.2d 178

226 Mo.App. 1053

STATE OF MISSOURI EX REL. STATE HIGHWAY COMMISSION OF MISSOURI, APPELLANT, v. S. M. RIGGS, RESPONDENT

Court of Appeals of Missouri, Springfield

March 7, 1932

Appeal from the Circuit Court of Laclede County.--Hon. J. H. Bowron Judge.

REVERSED AND REMANDED.

Reversed and remanded.

John W Mather and Jean Paul Bradshaw for appellant.

Goodbar & Gilster and Durward S. Brown for respondents.

SMITH J. Cox, P. J., and Bailey, J., concur.

OPINION

SMITH, J.

This case is here by plaintiff appealing from a verdict and judgment rendered in the circuit court of Laclede county wherein the defendant obtained judgment in a condemnation proceeding to obtain right of way over defendant's land for the establishment and construction of Highway numbered 66.

There is no controversy here over the pleadings. The petition is in the usual form alleging that the plaintiff is unable to agree with the defendant, owner of the land described in the petition, as to the proper compensation to be paid for land taken and damages to other lands and alleging that the acquisition of such land is a public necessity and is for the purpose of public use, and that it is necessary to condemn said land and right of way, and prays the court (or the judge thereof in vacation) to appoint three disinterested freeholders, residents of said county of Laclede, as commissioners to assess the damages, if any, which the owner of said land may sustain, and the just compensation, if any, to which he may be entitled in consequence of the establishment, construction and maintenance of said state highway, over said land, taking into consideration in determining said damages or compensation, the benefits, if any, to be derived by the owner, as well as the damages sustained thereby, and further prays for all proper orders, judgments and decrees.

The judge of the court in vacation appointed three commissioners, who qualified to act as such, to assess the damages, if any, to which the defendant might be entitled because of the taking of the land described in the petition. The land taken for right of way is minutely described in the petition, and amounts to 2.67 acres, more or less.

The commissioners on the 15th day of April, 1930, filed with the clerk of said court their report duly sworn to before said clerk in which they allowed the defendant as damage the amount of $ 150. On the 24th day of April, 1930, the defendant filed with the clerk of said court his exceptions to the report of the commissioners, setting out several reasons why the report was improper, and the "defendant moves the court to quash the commissioners' report and if the motion is overruled, that a jury be empaneled and a trial be had under the supervision of the court as of ordinary inquiry of damages, in order that the defendant's damages may be properly assessed."

At the February term, 1931, of the Circuit Court of Laclede county, the case was tried to a jury, resulting in a verdict being returned in favor of the defendant assessing his damages at $ 1000 and his special benefits at nothing. On the 14th day of February, 1931, the court entered judgment in accordance with the verdict returned by the jury.

Motion for new trial was filed in due time, and was by the court overruled. Affidavit for appeal was filed and the case is here under five assignments of error, which we shall consider in the order presented.

The plaintiff contends first that the court erred in admitting evidence of damages resulting from an excessive charge of dynamite set off by an independent contractor during the period of construction of the highway and long after the appropriation in eminent domain, for the reason that: (a) The finding of the jury must be made as of the day of the commissioners' award. (b) The jury may consider only such things growing out of the taking as would in the reasonable, careful and prudent construction of the improvement be so apparent on the day of the appropriation as to depreciate the market value of the land on that day. (c) The plaintiff is not liable in damage for the tortious act of an independent contractor. (d) The Highway Commission, being an agency of the State, is not liable for damages in tort.

The record shows that the appropriation of defendant's land took place on April 15, 1930. After the exceptions were filed the hearing on the exceptions were passed until February 11, 1931, and in the interim the road had been constructed, that is, when the commissioners reported the amount the defendant was entitled to receive, the Highway Commission proceeded with having the work done, before the exceptions were heard, as provided by sections 1342 and 8111, Revised Statutes 1929.

On examination of the witnesses for the defendant, the evidence showed that the highway as relocated was near a septic tank on the defendant's property and the defendant was asked this question, "Now, you mentioned something about a septic tank near the relocation. In making the relocation and building the road, was any damage done to that tank? and if so, what was it, by the workmen?" To this question the plaintiff made the following objection: "We object to that for the reason that any damage suffered should be brought against the contractor. The Highway Department is not responsible for that. The contractor is an independent contractor, and he had a bond posted to protect him, and the Highway Department is not responsible for his torts." This objection was overruled and the defendant testified as to the damage done to this tank by the discharge of dynamite by the contractor in constructing the highway.

Bearing in mind that this testimony was offered nine months after the land was appropriated, and after the work in relocating and constructing the highway at this place had been completed, and keeping mind that by statutory revision this work had been let to an independent contractor and that by the provisions of section 8116, Revised Statutes 1929, said contractor was under bond to secure the proper completion of said work, we think it was error to overrule the objection to the question. We are not holding that under no circumstances could the defendant be permitted to testify as to damages occurring to the property, but in this case it appeared that the objection was based upon the contention that the damage was done by the independent contractor, and it appears from the position taken by the defendant that assuming that it was done by the contractor that he was an agent of the State and that the State was liable for the acts of its agent. This position is manifest by the argument of counsel for defendant, for on this very point, the record shows that in closing argument counsel for defendant said "The septic tank is destroyed because it was broken in two, as Mr. Riggs says, by the force of the dynamite, and it was objected that the State wasn't liable, that the contractor was. What business has Mr. Riggs with the contractor? That contractor was the State of Missouri. Of course, they have to operate through agents. They are responsible though." This particular argument may not be reversible because not properly presented here through the motion for new trial, as contended by defendant, but it does clearly show the position of the defendant at the time the question was asked with reference to the broken septic tank, and this position does show the vice of such question and the answer sought and obtained. To put it in the most favorable light for the defendant, the testimony should have shown that the breaking of the tank was one of the things growing out of the taking as would be reasonably apparent on the day of appropriation. It is going too far to offer the testimony objected to and admit it on the theory that it is competent because the contractor was the agent of the Highway Commission, and that the State was liable in damages, regardless of whether or not the independent contractor caused the damage through his negligence or whether it was one of the natural results of the construction of the highway. Our position is this, that where compensation is sought for the taking of the land and the damages to the other property not taken, that testimony should be limited to the time of the taking of the property and to the results that might be reasonably apparent at the time of the taking. Suppose the road had not been constructed at the time of the hearing before the jury and the blasting of the rocks had not been done and the septic tank had not been broken, what would have been the line of questioning and what would have been the theory of the defendant with reference to this septic tank? It was not on the right of way, it was not touched by the engineers in surveying the route for the new location of the highway, and it was not touched by the contractor. So on what theory could the defendant have obtained damages for the breaking of this tank? It could...