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

• Decision Date: 05 April 1938
• Parties: STATE OF MISSOURI EX REL. STATE HIGHWAY COMMISSION (PLAINTIFF), RESPONDENT, v. RALPH C. BAILEY ET AL., DEFENDANTS, KATHERINE MAENNER (SOMETIMES KNOWN AS CATHERINE MAENNER), SHAMROCK OIL AND GAS COMPANY, JOHN MUNZERT AND CLARA MUNZERT, APPELLANTS
• Court: Missouri Court of Appeals

115 S.W.2d 17

234 Mo.App. 168

STATE OF MISSOURI EX REL. STATE HIGHWAY COMMISSION (PLAINTIFF), RESPONDENT, v. RALPH C. BAILEY ET AL., DEFENDANTS, KATHERINE MAENNER (SOMETIMES KNOWN AS CATHERINE MAENNER), SHAMROCK OIL AND GAS COMPANY, JOHN MUNZERT AND CLARA MUNZERT, APPELLANTS

Court of Appeals of Missouri, St. Louis

April 5, 1938

Appeal from Circuit Court of St. Louis County.--Hon. Julius R Nolte, Judge.

AFFIRMED.

Judgment affirmed.

E. McD. Stevens for appellants.

(1) State ex rel. v. Jones, 15 S.W.2d 338; State ex rel. v. Pope, 74 S.W.2d 265, l. c. 269. (2) State ex rel. v. Pope, 74 S.W.2d 265; Crews v. Wilson, 312 Mo. 643; White v. R. R., 202 Mo. 539; Woolsey v. Wabash Ry. Co., 274 Mo. 871; Seithel v. St. Louis Dairy Co., 300 S.W. 280; Thomas v Batz, 45 Mo. 384; Estes v. Desnoyers Show Co., 155 Mo. 577; Shell Pipe Line Corporation v Woolfolt, 53 S.W.2d 917; Sec. 8112, R. S. Mo. 1929; State Highway v. Pope, 74 S.W.2d 265, l. c. 269. (3) (a) Introduction of the incorrect, unidentified, misleading and confusing map or plat called Exhibit H was reversible error and the photographs introduced by plaintiff, not showing the true situation immediately before and after condemnation, should have been excluded. Camden v. New York, 119 A.D. 84, 103 N.Y.S. 971; Zinser v. Chicago Sanitary Dist., 175 Ill.App. 9; Hatcher v. Quincy Horse R., 181 Ill.App. 30; Corning v. Dollmeyer, 123 Ill.App. 188; Willis v. State, 19 Tex. Cr. 139; Rodick v. Maine Cent. R., 109 Me. 530; Colonial Ref. Co. v. Lathrop, 166 P. 747. (b) The map of plans filed with the county clerk were binding upon all parties and could not be disputed. Sec. 8126, R. S. Mo. 1929. (4) The increase in traffic, if any, was not a special benefit and should not have been taken into consideration by plaintiff's witnesses or by the court or jury. State ex rel. v. Pope, 74 S.W.2d 265; State v. Jones, 15 S.W.2d 340. (5) The court erred in striking out of Instruction No. 4, offered by defendants, the following: "Special and peculiar benefits are meant such benefits, if there are any, as are not common to other lands generally in the same neighborhood through which said road does run." State v. Jones, 15 S.W.2d 388.

Louis V. Stigall and Lue C. Lozier for respondent.

(1) The court did not err in modifying defendants' instructions, 3 and 4. State ex rel. S. H. C. v. Jones, 321 Mo. 1154, 15 S.W.2d 338; Randolph, Eminent Domain, section 269, p. 250; State ex rel. S. H. C. v. Baumhoff, 230 Mo.App. 1030, 93 S.W.2d 104; Null v. Stewart, 78 S.W.2d 75; Jenkins v. Mo. State Life Ins Co., 334 Mo. 941, 69 S.W.2d 666; Larey v. M. K. & T. R. Co., 333 Mo. 949, 64 S.W.2d 681; McDonald v. Kansas City Gas Co., 332 Mo. 356, 59 S.W.2d 37. Dean v. Moceri, 87 S.W.2d 218; Roman v. Hendricks, 80 S.W.2d 907; Wind v. Bank of Maplewood, 58 S.W.2d 332; Funcke v. St. L.-S. F. Ry. Co., 35 S.W.2d 977, 982; Privette v. City of West Plains, 93 S.W.2d 251; Stermolle v. Brainard, 24 S.W.2d 712; Neagle v. City of Edina, 53 S.W.2d 1077; Crupe v. Spicuzza, 86 S.W.2d 347; Arnold v. May Dept. Stores Co., 85 S.W.2d 748; Hicks v. Vieths, 46 S.W.2d 604; 5 C. J. S., p. 1170; Lyons v. St. Joseph Belt Ry. Co., 84 S.W.2d 933, 945; Coyne v. Golland, 243 S.W. 376; Homan v. M. P. Ry. Co., 70 S.W.2d 869. (2) The court did not err in giving plaintiff's instructions Nos. 11 and 12. State ex rel. S. H. C. v. Jones, 321 Mo. 1154, 15 S.W.2d 338; State ex rel. S. H. C. v. Baumhoff, 230 Mo.App. 1030, 93 S.W.2d 104; State ex rel. S. H. C. v. Southern Securities Co., 60 S.W.2d 632. (3) The court did not err in giving plaintiff's Instruction No. 14. Showalter v. State, 63 P.2d 189; Tyler v. Town of Darien, 162 A. 837. (4) The court did not err in permitting plaintiff's witnesses Schubert and Preutzel to testify as to values. State ex rel. S. H. C. v. Craighead, 65 S.W.2d 145; State ex rel. S. H. C. v. Williams, 51 S.W.2d 538; State ex rel. S. H. C. v. Wright, 11 S.W.2d 66; St. L.-S.W. Ry. v. Hoyt, 63 S.W.2d 214. (5) Upon the record, the court did not err in allowing plaintiff's witness Schubert to testify as to value basing his opinion partly upon increased traffic. State ex rel. S. H. C. v. Pope, 228 Mo.App. 888, 74 S.W.2d 265; State ex rel. S. H. C. v. Baumhoff, 230 Mo.App. 1030, 93 S.W.2d 104; Baily v. L. & L. & G., Inc., 166 Mo.App. 593, 149 S.W. 1169; Wolfso v. Cohen, 55 S.W.2d 677. (6) The court did not err in admitting in evidence the photographs offered by plaintiff. Funcke v. St. L.-S. F. Co., 225 Mo.App. 347, 35 S.W.2d 977; Costello v. K. C., 280 Mo. 576, 219 S.W. 386; Johnston v. K. C., 272 S.W. 703; Lauff v. Kennard Co., 186 Mo.App. 123, 171 S.W. 986; Edge v. Ry., 206 Mo. 471, 501; Rogers v. M. & O. R. Co., 337 Mo. 140, 85 S.W.2d 581. (7) The court did not err in admitting in evidence plaintiff's Exhibit H. Wahl v. Laubersheimer, 174 Ill. 338; City of Hazard v. Calhoun, 237 Ky. 406, 35 S.W.2d 552; Silvey v. Harm, 8 P.2d 570; Curtin v. Mann, 258 Ill.App. 419, 427; Grady v. Royar, 181 S.W. 428; Williamson v. Fischer, 50 Mo. 198; Williamson v. M. K. T. Ry. Co., 115 Mo.App. 72, 90 S.W. 401; Cullen v. Johnson, 29 S.W.2d 39; Stumpe v. Kopp, 201 Mo. 290, 99 S.W. 767. (8) The court did not err in refusing to declare a mistrial on account of the conversation between two of plaintiff's witnesses and a juror. McGuire v. Amyx, 317 Mo. 1061, 297 S.W. 698; Paul v. Dunham, 214 S.W. 263; De Van Rose v. Tholborn, 153 Mo.App. 408, 134 S.W. 1093. (9) The court did not err in sustaining plaintiff's objection to argument of defendants' counsel regarding Instruction No. 14. Williams v. N. B. R. R. Co., 21 Mo. 58; Hannibal Br. Co. v. Schaubacher, 57 Mo. 582; Baker v. City of St. Louis, 7 Mo.App. 429 (affirmed 75 Mo. 671); Grant v. Moon, 128 Mo. 43, 30 S.W. 328; Ashurst v. Lohoefner, 170 Mo.App. 327, 156 S.W. 805; Piculjan v. U. E. & P. Co., 208 Mo.App. 331, 234 S.W. 1006; 29 C. J., pages 547, 548; Elliott, Roads and Streets (4 Ed.), sec. 882; Dillon, Munic. Corp. (5 Ed.), sec. 1126; 1 Elliot, Roads and Streets (4 Ed.), Chapter XX; Glasgow v. St. Louis, 107 Mo. 198, 204; Heinrich v. City of St. Louis, 125 Mo. 424, 427; Griffin v. City of Chillicothe, 311 Mo. 648, 279 S.W. 84; Zimmerman v. Met. Ry. Co., 154 Mo.App. 296, 134 S.W. 40; Dries v. City of St. Joseph, 98 Mo.App. 611, 73 S.W. 723; Brownlow v. O'Donoghue Bros., 276 F. 636; Donovan v. Penn. Co., 199 U.S. 279, 26 S.Ct. 91, 50 L.Ed. 192; In re Forsstrom, 38 P.2d 878; 4 McQuillan, Munic. Corp., p. 3167; 1 Nichols, Eminent Domain, p. 462; 2 Lewis, Eminent Domain, secs. 449, 451; 20 C. J. 1223; 10 R. C. L., p. 80; 3 L.R.A. 175 (note); 3 Thompson, Corp., p. 683, par. 2758; Wash. Com. v. Prospect R. G. Co., 68 N.Y. 591; Re Commissioners of Public Works, 10 N.Y.S. 705, 57 Hun. 419; City of San Gabriel v. P. E. Ry. Co., 18 P.2d 996; Harris v. Elliot, 35 U.S. 25, 9 L.Ed. 333; State ex rel. S. H. C. v. Pope, 228 Mo.App. 888, 74 S.W.2d 265; Shell Pipe Line Corp. v. Wolfolk, 53 S.W.2d 917. (10) To justify reversal, the errors must be shown to have been prejudicial. State ex rel. Mut. Assn. v. Allen, 336 Mo. 352, 78 S.W.2d 862; Anth v. Wells, 285 S.W. 768; Clark v. Skinner, 334 Mo. 1190, 70 S.W.2d 1094; Carpenter v. Burmeister, 217 Mo.App. 104, 273 S.W. 418; State ex rel. St. L. P. S. Co. v. Haid, 333 Mo. 845, 63 S.W.2d 15.

McCULLEN, J. Hostetter, P. J., and Becker, J., concur.

OPINION

McCULLEN, J.

This suit was instituted by the State of Missouri at the relation of the State Highway Commission, hereinafter referred to as plaintiff, for the condemnation of land of appellants, hereinafter called defendants, in connection with the widening and improvement of State Highway Route No. 30, also known as Gravois Road, in St. Louis County, Missouri. Commissioners were duly appointed, and on November 23, 1932, they filed in court their award granting defendants the sum of $ 1350 damages. In due time plaintiff filed exceptions to said award, which were sustained by the court and a jury trial ordered. On June 6, 1933, the amount of said award was paid into court by plaintiff, and then paid to defendants. Thereafter, on April 11th and 12, 1935, a trial in the circuit court before a jury resulted in a verdict and judgment of no damages to defendants. Defendants' motion for new trial having been overruled, they appealed to the Supreme Court. That court held that it did not have jurisdiction of the cause and transferred it to this court.

Defendants were the owners of a tract of 3.8 acres of land in St. Louis County at the intersection of State Highway Route No. 30 and a St. Louis County road known as Laclede Station Road. Prior to the widening of Route No. 30 involved in this suit, defendants had donated to St. Louis County a strip of land on the east side of their property in connection with the construction of Laclede Station Road. When the construction of the last-named road was completed, defendant's land was on the northwest corner of the intersection of Laclede Station Road and Route No. 30. Defendant's land fronted upon Route No. 30 a distance of approximately one hundred and seventy-five feet. On the front part of defendants' land was located a filling station which had been formerly leased to the Shamrock Oil & Gas Company. West of the filling station was a hamburger stand on said land. Prior to the widening, three separate rock entrances led from Route No. 30 into the filling station. Out near the front of defendants' property were airlines used for the purpose of servicing automobiles with air. There were gasoline pumps in the front part of the filling station.

Before the widening, the right of way of Route No. 30 was sixty feet wide. The paved portion was in the middle thereof, and was a concrete slab twenty feet in width with a ten foot rock shoulder on each side. The part of defendants' land taken by condemnation herein was...