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

• Citation: 102 S.W.2d 666,340 Mo. 802
• Decision Date: 17 March 1937
• Docket Number: 35115
• Parties: State of Missouri at the relation of the State Highway Commission, Relator, v. Hopkins B. Shain, Ewing C. Bland and Robert M. Reynolds, Judges of the Kansas City Court of Appeals
• Court: United States State Supreme Court of Missouri

102 S.W.2d 666

340 Mo. 802

State of Missouri at the relation of the State Highway Commission, Relator, v. Hopkins B. Shain, Ewing C. Bland and Robert M. Reynolds, Judges of the Kansas City Court of Appeals

No. 35115

Supreme Court of Missouri

March 17, 1937

Record quashed.

Louis V. Stigall, Fielding P. Stapleton and Hal B Hunt for relator.

(1) As to predicating error upon the refusal of the trial judge to sustain objection to the testimony of witness Morris as to the comparative value of the land before and after the improvement "without stating what, in his opinion, the values before and after were." This does away with the whole theory established through a long line of decisions in this State, climaxing in the decision of Commission v Jones, 321 Mo. 1154, 15 S.W.2d 338, and later in the case of Commission v. Duncan, 19 S.W.2d 465. (2) As to predicating error upon the refusal of the trial court to sustain objection to the cross-examination of the property owner Lindley as to his activity in promoting the building of the road across his land. This statement of law is contrary to the opinion of the Supreme Court in the case of Bragg v. Ry. Co., 91 S.W. 527; State v. Donnington, 246 Mo. 343; Johnson v. Quarles, 46 Mo. 423. (3) As to predicating error upon the form of judgment rendered by the lower court which includes a judgment in favor of plaintiff for $ 4100, the difference between the verdict and the commissioners' award. This statement of law is in direct conflict with the whole spirit and doctrine of Railroad v. Clark, 119 Mo. 357.

Ernst & Williams for respondents.

(1) On certiorari from the Supreme Court to the Court of Appeals to quash decision of the appellate court on the ground that it is in conflict with the last controlling decision of the Supreme Court, the Supreme Court will take the statement of facts as found by the appellate court. State ex rel. v Trimble, 298 S.W. 782; State ex rel. v. Haid, 61 S.W.2d 950; State ex rel. Ward v. Trimble, 39 S.W.2d 372, 327 Mo. 773; State ex rel. Vesper Co. v Daues, 19 S.W.2d 700; State ex rel. Arndt v. Cox, 38 S.W.2d 1079; State ex rel. Karz v. Bland, 64 S.W.2d 638; State ex rel. St. Louis Ry. Co. v. Haid, 37 S.W.2d 437. On certiorari to quash opinion, sole inquiry is whether rulings in opinion of Court of Appeals conflict with last controlling decision of Supreme Court. State ex rel. Wab. Ry. Co. v. Ellison, 204 S.W. 396; State ex rel. Silverford v. Smith, 43 S.W.2d 1054; State ex rel. Consolidated Dist. v. Haid, 41 S.W.2d 806; State ex rel. Sears Co. v. Haid, 60 S.W.2d 41, 332 Mo. 701; State ex rel. Hauck Co. v. Haid, 62 S.W.2d 400; State ex rel. Gatewood v. Trimble, 62 S.W.2d 756; State ex rel. Bush v. Sturgis, 281 Mo. 598, 221 S.W. 91, 9 A. L. R. 135. On a petition for certiorari under the law relator is required to point out some decision of the Supreme Court and the principle therein announced where the facts were the same or similar to those in this case and with which this case is in conflict, and which relator has wholly failed to do. State ex rel. Brotherhood of American Yeoman v. Reynolds, 287 Mo. 169, 229 S.W. 1057; State ex rel. v. Allen, 256 S.W. 1049; State ex rel. v. Haid, 51 S.W.2d 79; State ex rel. v. Allen, 251 S.W. 917; State ex rel. Koenen v. Daues, 288 S.W. 14. (2) The opinion correctly states the rule of law. To allow a witness to give his opinion as to the amount of damages sustained in any given case is a general rule usurping the province of the jury, and determining for them a question of which they are peculiarly the judges, and for which purpose they are selected in all cases sounding in damages and where there is a trial by jury. That is, that witnesses should only state facts, and leave entirely to the jury the question as to the amount of the damages. This is the rule announced by this court in the cases of: Spencer v. Met. St. Ry. Co., 120 Mo. 159, 25 S.W. 202; Hosher v. Railroad Co., 60 Mo. 303; Hurt v. Ry. Co., 94 Mo. 255. This is also the rule announced in other decisions of the Kansas City Court of Appeals namely: White v. Stoner, 18 Mo.App. 540; Belch v. Railroad Co., 18 Mo.App. 80. (3) As to relator's third assignment of conflict in opinion of the Kansas City Court of Appeals in predicating error upon the form of judgment rendered by the lower court which includes a judgment in favor of plaintiff for $ 4100, the difference between the verdict and the commissioners' award. This court will take the statement of facts as found by the Court of Appeals in its opinion. The opinion of the Court of Appeals is not in conflict with Railroad v. Clark, 119 Mo. 357.

Collet, J. Gantt, J., concurs in result; Hays and Frank, JJ., concur.

OPINION

COLLET

Certiorari to the Kansas City Court of Appeals. The opinion of the Court of Appeals is reported in State ex rel. State Highway Commission v. Lindley, 96 S.W.2d 1065. The cause was a condemnation case instituted by the State at the relation of the State Highway Commission for the purpose of acquiring right-of-way for a state highway. The facts stated by the Court of Appeals are incorporated herein by reference.

Seven grounds of conflict are assigned. We will consider the assignments in the order presented.

The opinion is said to be in conflict with State ex rel. State Highway Commission v. Jones, 321 Mo. 1154, 15 S.W.2d 338, and State ex rel. State Highway Commission v. Duncan, 323 Mo. 339, 19 S.W.2d 465, in that it holds that it was error for the trial court to permit the witness Frank Morris to testify that there was no difference in the value of the defendant's farm before and after the construction of the highway, i. e., that the farm suffered no damage, without first stating what, in his opinion, the values before and after were. The Court of Appeals said:

"The objection should have been sustained; and the witness should have been required to have given his opinion as to the value before and the value after the highway was built instead of merely stating that, in his opinion, there was no difference in such values."

Although a conflict with a principle of law announced by this court is sufficient on certiorari (State ex rel. Lusk v. Ellison, 271 Mo. 463, 196 S.W. 1088), yet such a conflict must be called to this court's attention or the writ will be denied. It is also true that while we may be of the opinion that an expert witness, when qualified, may state the ultimate fact in the form of his conclusion, no such principle is announced in the cases cited, hence there is no conflict shown.

The opinion of the Court of Appeals in holding that it was improper to show, on cross-examination of the defendant, that he was instrumental in getting the road located where it was later constructed, that he gave the right-of-way for this highway in another instance and solicited others to give theirs, is said to conflict with the principle declared in Bragg v. Railway Co., 192 Mo. 331, 91 S.W. 527, State v. Donnington, 246 Mo. 343, 151 S.W. 975, and Johnson v. Quarles, 46 Mo. 423. The controversial issue in the case was the existence or nonexistence of net damages. The defendant was contending that the damages exceeded any special benefits, while the plaintiff was undertaking to prove that those benefits equaled or exceeded the damages. Under those circumstances plaintiff was entitled to show by cross-examination of the defendant that he had, by his conduct, recognized the existence of those benefits. Such evidence was not admissible to establish the existence of special benefits, but when defendant had taken a position asserting that the damages exceeded the benefits, plaintiff was entitled to show that the witness had theretofore occupied a contradictory position. If defendant was active in securing the location of the road by his farms when he knew that it was to cut through one of them, an implication which might properly be drawn from such fact is that he considered the benefits very substantial, hence it was not improper, after defendant had denied that he knew the road was to cut through his farm at the time he was promoting the location and construction of the highway, to show by the witness Swenson that he was familiar with the proposed location of the road at that time. In this particular the opinion is in conflict with the general principles enunciated by this court in the cases cited as well as others not cited.

The commissioners assessed the defendants' damages at $ 4100. Both plaintiff and defendants filed exceptions to that award. Upon a trial by jury there was a verdict for plaintiff, i. e., no damages were allowed defendants. The judgment entered upon that verdict found that the commissioners' award of $ 4100 had been paid into court for the use and benefit of the defendants and on motion of plaintiff judgment was entered against defendant for the $ 4100. The motion referred to alleged (in addition to the judgment findings above referred to) that a check for the amount of the commissioners' award "had been handed to the defendants by the circuit clerk." No evidence was offered on the motion and it was not shown whether the award had actually been paid to defendants. The Court of Appeals held that it was error under these circumstances to render judgment against defendants for the amount of the award. It is asserted that the conclusion reached by the Court of Appeals is in conflict with Railroad v. Clark, 119 Mo. 357, 24 S.W. 157; Cape Girardeau & C. Railroad Co. v. Bleechle, 234 Mo. 471, 137 S.W. 974, and St. Louis, Memphis & S. E. Ry. Co. v. Aubuchon, 199 Mo. 352, 97 S.W. 867.

The Clark case holds that the court has the power to enter a judgment in a condemnation proceeding against a landowner requiring him to refund if he has been paid more than the amount of the final...