State ex rel. State Highway Com'n v. Blobeck Inv. Co.

• Decision Date: 07 December 1937
• Parties: STATE OF MISSOURI EX REL., STATE HIGHWAY COMMISSION (PLAINTIFF), APPELLANT, v. BLOBECK INVESTMENT COMPANY, A CORPORATION, DEFENDANT, HENRY J. KRUEGER, JR., AND ELIZABETH KRUEGER (DEFENDANTS), RESPONDENTS
• Court: Missouri Court of Appeals

110 S.W.2d 860

233 Mo.App. 858

STATE OF MISSOURI EX REL., STATE HIGHWAY COMMISSION (PLAINTIFF), APPELLANT, v. BLOBECK INVESTMENT COMPANY, A CORPORATION, DEFENDANT, HENRY J. KRUEGER, JR., AND ELIZABETH KRUEGER (DEFENDANTS), RESPONDENTS

Court of Appeals of Missouri, St. Louis

December 7, 1937

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

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Louis V. Stigall and Wilkie C. Cunnyngham for appellant.

(1) Constitution of Missouri, Art. II, Sec. 21; Van DeVere v Kansas City, 107 Mo. 83, l. c. 90, 91, 17 S.W. 695; Anderson v. Inter-River Drainage & Levee Dist., 309 Mo. 189, l. c. 209, 274 S.W. 448; Schneider v. Mo. P. Ry Co., 29 Mo.App. 68, l. c. 76; City of St. Louis v. Gerhart Realty Co., 328 Mo. 103, 40 S.W.2d 661, l. c. 664; Union Elevator v. Kansas City Belt R. R. Co., 135 Mo. 353, 36 S.W. 1071; Tate v. State Highway Commission, 226 Mo.App. 1216, 49 S.W.2d 282. (2) City of Springfield v. Schmook, 68 Mo. 394; Campbell v. United States, 266 U.S. 368, l. c. 370, 371, 45 S.Ct. 115, 116, 69 L.Ed. 328. (3) The defendants can recover only such damages as are special and peculiar to them. They cannot recover such as are common to the community generally. State ex rel. State Highway Commission v. Watkins, 51 S.W.2d 543, l. c. 545; Kansas City N. Ft. S. Ry. Co. v. Dawley, 50 Mo.App. 480, 485; City of Springfield v. Schmook, 68 Mo. 394; Van DeVere v. Kansas City, 107 Mo. 83; Stacey v. Met. El. Ry. Co., 15 A.D. 534, 44 N.Y.S. 534, 535; Moore v. N. Y. E. L. Co., 8 N.Y.S. 769; City of Springfield v. Ellis, 97 S.W.2d 154, 158. (4) The trial court erred in allowing damages to be pictured to the jury as of a date different from that of the filing of the commissioners' report and over five years after the appropriation of the land. The amount of damages should not have been made to depend upon such mere casualty or hazard as results because of some particular date for the jury trial having come up on the spinning on the wheel of change rather than some other date. Mo. P. Ry. Co. v. Wernwag, 35 Mo.App. 449, 453; St. Louis, Oak Hill and C. Ry. Co. v. Fowler, 113 Mo. 458, 472, 20 S.W. 1069; In the Matter of Forsyth Blvd., 127 Mo. 417, 421, 30 S.W. 188; City of St. Louis v. Worthington, 331 Mo. 182, 52 S.W.2d 1003, 1010.

A. E. L. Gardner for respondents.

(1) It is generally held that the failure to object to evidence at the time it is offered is a waiver of all objections to its admissibility. Tureen v. People's Motorbus Co., 97 S.W.2d 847, l. c. 848; Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950, l. c. 956; In re Birmingham Drainage Dist., 266 Mo. 60, l. c. 71; Clark v. Crandall, 5 S.W.2d 383, l. c. 386. (2) It is a well-settled rule that where testimony of a particular character is permitted to go in without objection the adverse party cannot thereafter object to evidence of the same character. Buffum v. Woolworth Co., 221 Mo.App. 345, l. c. 352; Phillips v. Thompson, 225 Mo.App. 859, l. c. 865. (3) Appellant waived all objections to the evidence complained of by introducing the same character of evidence in its defense. Ruth v. St. Louis Transit Co., 98 Mo.App. 1, l. c. 19; Hunter v. Helsley, 98 Mo.App. 616, l. c. 621; Crabtree v. Van Hoozier, 53 Mo. App., l. c. 410; Wiggington v. Rule, 275 Mo. 412, l. c. 450; Rourke v. Railroad, 221 Mo. 46, l. c. 62 (and cases cited.) (4) Counsel for both appellant and respondents, having based their arguments to the jury principally upon the evidence complained of without objection or exception, neither can now be heard to complain, and the error, if any, in permitting the introduction of said evidence is waived by appellant. Mahaney v. Railway Co., 108 Mo. 191, l. c. 200; Sidekum v. Railroad, 93 Mo. 400, l. c. 408; Preston v. Railroad Co., 292 Mo. 442, l. c. 458; Sullivan v. Railway Co., 321 Mo. 697, l. c. 711; Ostertag v. Railroad Co., 261 Mo. 457, l. c. 479.

BENNICK, C. Hostetter, P. J., and Becker and McCullen, JJ., concur.

OPINION

BENNICK, C.

This case, which comes to the writer on reassignment, arises out of a condemnation suit which was brought at the relation of the State Highway Commission in connection with the construction of State Highway No. 66 in St. Louis County along the general route of what was formerly known as the Watson Road.

Among the landowners affected by the condemnation were defendants, Henry J. Krueger, Jr., and Elizabeth Krueger, his wife, who were the owners of a tract of approximately 30 acres of land situated at the northwest corner of the intersection of the Watson Road with the Laclede Station Road. The land actually taken for the improvement was a narrow strip running the full width of defendants' property abutting on Watson Road, and comprising in its entirety 1.28 acres. However the issue respecting the amount of defendants' compensation was not limited to the determination of the value of the land actually taken, but was extended as well to the question of the damage, if any, which was done to the remainder of the tract of which the land taken was a part, from the total of which there was of course to be deducted the value of the special benefits, if any, accruing in consequence of the making of the improvement.

The commissioners who were appointed by the court assessed defendants' damages at the sum of $ 4,500. Defendants for their part were seemingly content with the commissioners' report, but not so with the State Highway Commission, which filed its exceptions asking that a new appraisement of the damages be made by a jury under the supervision of the court as is provided by law in ordinary cases of inquiry of damages.

Thereupon a trial was had to a jury, resulting in the return of a verdict assessing defendants' damages at the sum of $ 7,125. Judgment was rendered accordingly, and the State Highway Commission's appeal to this court has followed in the usual course.

The chief controversy in the case goes to the question of whether reversible error was committed by the court in allowing evidence to be introduced on behalf of defendants respecting certain uses which the adjoining landowners had made of their own properties after the completion of the improvement, and which, because such uses were shown to have been of a character calculated to bring about a diminution in the reasonable market value of defendants' property, were looked upon by defendants as consequential damages for which they were entitled to be compensated.

At the opening of the trial, which was had on October 17, 1935, it was agreed between counsel for the respective parties that the question of defendants' damages should be determined as of August 28, 1930, that being the date of the commissioners' report. In fixing such date counsel were of course having due regard for the fact that in a condemnation proceeding the question of damages and benefits is to be determined with reference, not to the time of the trial, but to the time of the appropriation. [State ex rel. v. Day, 226 Mo.App. 884, 47 S.W.2d 147; State ex rel. v. Baumhoff (Mo. App.), 93 S.W.2d 104.]

Near the outset of the trial, which, it will be recalled, was not had until more than five years after the appropriation, defendants showed by one of their witnesses that both on the northeast and southwest corners of the intersection of Watson Road with the Laclede Station Road, immediately opposite defendants' property, filling stations had been erected, and that further improvements were being made in the way of laying concrete around the same.

Counsel for the Highway Commission, apparently not realizing at that initial stage of the case that defendants were laying the basis for their proof of damages, objected to any inquiry relative to the frontage of such filling stations upon Watson Road, but put his objection upon the general ground that such question was immaterial to any issue involved in the case on trial.

Defendants' counsel thereupon interposed to state that his purpose was "to show the situation around there, and what has developed since this improvement has been put in," to which counsel for the Highway Commission answered: "The State would not be responsible for any use another man made of his land over there. He might even put a nuisance on it, but that would not subject the State to damages for that; and if it was any other use we would not be responsible for that."

It appears, incidentally, that the court for its part had not yet caught the full significance of the matter, as was evidenced by the court's statement: "Of course, I do not know the purpose of showing the use."

At that juncture defendants' counsel proceeded to elaborate at length upon his theory of the admissibility of such evidence by arguing that he was entitled to show that the construction of the highway had "changed the entire character of the neighborhood" by inviting, or at least by making possible, the building of filling stations and tourist cabins in the immediate vicinity of defendants' property, all of which had served to cause the property to depreciate in value.

In reply, counsel for the Highway Commission argued that even though the uses to which the adjoining landowners had subjected their properties after the completion of the improvement had brought about a decrease in the value of defendants' property, such damage was nevertheless common to the neighborhood and therefore not special to defendants but that whether such uses had proved to be advantageous or disadvantageous to defendants, the matter was in any event one over which the state had had no control, so that neither were the advantages to defendants, if any, to be set off by the state as benefits, nor, by the same token, were any disadvantages to defendants to be urged by them...