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

• Decision Date: 30 July 1929
• Docket Number: 27220
• Citation: 19 S.W.2d 465,323 Mo. 339
• Parties: The State ex rel. State Highway Commission v. Oliver Duncan, Appellant
• Court: Missouri Supreme Court

19 S.W.2d 465

323 Mo. 339

The State ex rel. State Highway Commission v. Oliver Duncan, Appellant

No. 27220

Supreme Court of Missouri

July 30, 1929

Appeal from Lafayette Circuit Court; Hon. Robert M Reynolds, Judge.

Affirmed.

Lyons & Ristine for appellant.

(1) The court erred in not excusing juror J. W. Klingenberg, on the voir dire examination, because said juror had aided the State Highway Commission in obtaining the rights-of-way for Highway No. 40 in Lafayette County, and it thereby became his duty to obtain said rights-of-way for nothing, if possible, and in any and all events as cheaply as possible for the State Highway Commission. A man cannot serve two masters, and this juror was disqualified to render an impartial verdict in this case. Kregain v. Blake, 292 Mo. 498; Laundy v. Girdner, 238 S.W. 788. (2) The court erred in giving the plaintiff's Instruction 1 because it does not correctly declare the law with respect to peculiar benefits and because in defining peculiar benefits it is contrary to and in conflict with defendant's given Instruction 3. Mississippi County v. Byrd, 4 S.W.2d 812; Ripkey v. Binns, 264 Mo. 505; Shepard v Transit Co., 189 Mo. 362; Porter v. Ry. Co., 199 Mo. 82. (3) The court erred in giving the plaintiff's Instruction 2, because it does not correctly define special and peculiar benefits, and because it is contrary to and in conflict with the defendant's given Instruction 3, and because it does not correctly define the elements of damage to this plaintiff. See authorities last above cited. (4) The errors complained of in headings 2 and 3 were greatly aggravated because the plaintiff was permitted to prove by various witnesses that the defendant's land contiguous to the road would be benefited more than land adjoining his land and not abutting on said highway, and other lands that were a half a mile or quarter of a mile from said highway. Mississippi County v. Byrd, 4 S.W.2d 812. (5) The court erred in submitting the question of special benefits to the jury at all, because there was no evidence showing or even tending to show that the defendant's land was specially benefited on account of this highway, and the submission of such fact to the jury and their verdict giving the defendant no damages, were contrary and in violation of Sec. 21, of Art. II, Constitution of Missouri, which declares that private property shall not be taken for public use without a just compensation. Mississippi County v. Byrd, 4 S.W.2d 812.

James & James and Edgar Shook for respondent.

(1) The court did not err in not excusing juror Klingenberg, on the voir dire examination. The trial court has a large discretion with respect to challenges to jurors on the voir dire examination. Kenley v. Ry. Co., 214 S.W. 237; Glasgow v. Ry. Co., 191 Mo. 355; Joyce v. St. Ry. Co., 219 Mo. 344; Tawney v. United Ry. Co., 262 Mo. 602. (2) Instruction 1 given by the court in behalf of plaintiff properly declares the law. Newby v. Platte County, 25 Mo. 258; McReynolds v. Ry. Co., 110 Mo. 484; K. C. Sub-Belt Ry. v. McElroy, 161 Mo. 584; Ry. Co. v. Fowler, 142 Mo. 683; Lee v. Railroad Co., 53 Mo. 179; Lingo v. Burford, 112 Mo. 157; State ex rel. v. Kansas City, 89 Mo. 34; St. Louis v. Buss, 159 Mo. 9; St. Joseph v. Geiwitz, 148 Mo. 210; Bennett v. Woody, 137 Mo. 377; Mississippi County v. Byrd, 4 S.W.2d 810; In re Aiken, 262 Mo. 403. (3) Plaintiff's Instruction 2 is a correct declaration of the law. See authorities cited above. (4) There was abundant evidence tending to show that this land would receive special and peculiar benefits not common to other lands similarly situated with reference to this road, and it was for the jury to say, under the evidence, whether such benefits were sufficient to offset the damages for taking the land for a right-of-way. Daugherty v. Brown, 91 Mo. 26. The constitutionality of the law permitting this to be done has been frequently passed upon by this court. Newby v. Platte County, 25 Mo. 258; Daugherty v. Brown, 91 Mo. 26; State ex rel. v. Kansas City, 89 Mo. 34; Kansas City v. Morton, 117 Mo. 446; Lingo v. Burford, 112 Mo. 149; Bennett v. Hall, 184 Mo. 407; So. Illinois & Mo. Bridge Co. v. Stone, 194 Mo. 188.

Ellison, C. Lindsay and Seddon, CC., concur.

OPINION

ELLISON

This is a suit to condemn a right-of-way across the defendant's farm in Saline County, for primary State Highway No. 40. Commissioners were appointed who made an award of $ 2250 damages, against which the plaintiff filed exceptions. The cause was then set down for ascertainment of the damages by a jury, but on the defendant's application the venue was changed to Lafayette County in the same circuit. At the trial he testified he was damaged $ 8,000 but a jury unanimously found he was not entitled to damages, and he has appealed.

The errors assigned may be grouped under three heads: (1) failure to discharge a juror for disqualification developed on his voir dire examination; (2) error in giving two instructions for respondent, in that they did not correctly define special benefits and distinguish between special and general benefits, and because these two instructions for respondent conflicted with one given for appellant; (3) that there was no competent evidence showing the appellant was specially benefited by the location and construction of the highway, in consequence of which it was error to submit that issue to the jury at all.

I. As to the first assignment. The voir dire examination of one member of the regular jury panel, J. W. Klingenberg, who was later foreman of the jury, disclosed that he was a member of the Chamber of Commerce of Concordia in Lafayette County, and as such had assisted in obtaining right-of-way for the same road in his county near his town. He had worked without compensation and was not an employee of the State Highway Department. In answer to questions he said he was not prejudiced and had no feeling that would deter him from awarding a man damages if the evidence showed him entitled to them.

The defendant argues that Mr. Klingenberg's confessed relation to the State Highway Department was such that he became its agent in getting right-of-way as cheaply as possible, and that he could not serve two masters by acting also as a disinterested juror. Also, it was shown some of the Saline County witnesses for respondent admitted they had signed a bond making themselves responsible for all damages and expenses incurred in acquiring right-of-way in that county, and appellant asserts the inference is to be drawn from this that the same practice was followed in Lafayette County and that the juror was familiar with it or a party to it.

We are unable to attach much weight to these contentions. As the learned trial judge remarked in overruling them, for all the evidence shows Mr. Klingenberg and his associates may have settled with landowners in their county and paid them. There is nothing indicating he had been engaged in litigation or controversies of a similar kind. He said he was not prejudiced. We think the circuit court ruled correctly; and besides, a large measure of discretion is confided to the trial court in such matters. The assignment is disallowed on authority of such cases as Parlon v. Wells, 322 Mo. 1001, 17 S.W.2d 528; Tawney v. United Rys. Co., 262 Mo. 602, 611, 172 S.W. 8, 11; Joyce v. Met. St. Ry. Co., 219 Mo. 344, 351, 375, 118 S.W. 21, 23, 31; Glasgow v. Met. St. Ry. Co., 191 Mo. 347, 355, 89 S.W. 915, 917.

II. The respondent's instruction numbered 1 told the jury they should deduct from the damages to appellant's land "the benefits, if any, peculiar to such tract arising from the running of the road through it; and by peculiar benefits is meant such benefits derived from the location of the road as are peculiar to the tract itself, and not shared in common by it and other lands in the same neighborhood."

The respondent's instruction numbered 2 said:

"The court instructs the jury that in estimating the damages to the defendant it should take into consideration the fair market value of the strip of land taken by the plaintiff, the damages, if any, to the remainder of the defendant's land, and the special and peculiar benefits which may accrue to the remainder of the defendant's land by virtue of the location and construction of the State Highway. By special and peculiar benefits is not meant the benefits which the defendant derives in common with the other landowners generally in the vicinity upon the location and construction of said highway, but such benefits as will be enjoyed by the defendant which are not also enjoyed by other lands generally in the neighborhood."

The appellant's instruction numbered 3 was as follows:

"The court instructs the jury that by peculiar benefits are meant such benefits, if there are any, as said tract derives from the location of the plaintiff's road through it and as are not common to other lands generally in the same neighborhood through which said road does run."

Complaining of these two instructions for respondent the appellant says "Under said instructions the jury was authorized to find that any enhancement in the market value of the Duncan farm which was in excess of and greater than the enhancement of farms in that neighborhood but which did not adjoin said highway, would be chargeable against Duncan as a special benefit. . . . Unless the enhanced value of the Duncan farm was special and peculiar to his farm and not shared by other farms adjoining said highway in that vicinity, it...