State ex rel. v. Day et al.

• Decision Date: 08 March 1932
• Docket Number: No. 21753.,21753.
• Parties: STATE EX REL. STATE HIGHWAY COMMISSION OF MISSOURI, APPELLANT, v. A.N. DAY AND MYRTLE DAY (HIS WIFE) AND FEDERAL LAND BANK OF ST. LOUIS (HOLDER OF A MORTGAGE). DEFENDANTS.
• Court: Missouri Court of Appeals

47 S.W.2d 147

STATE EX REL. STATE HIGHWAY COMMISSION OF MISSOURI, APPELLANT, v. A.N. DAY AND MYRTLE DAY (HIS WIFE) AND FEDERAL LAND BANK OF ST. LOUIS (HOLDER OF A MORTGAGE). DEFENDANTS.

No. 21753.

St. Louis Court of Appeals. Missouri.

Opinion filed March 8, 1932.

Appeal from the Circuit Court of Audrain County. — Hon. Emil Roehrig, Judge.

REVERSED AND REMANDED.

John W. Mather, Wilkie B. Cunnyngham, B.F. Boyer and R.M. Eubanks for appellant.

(1) The court erred in admitting in evidence the petition, judgment and instructions of a prior condemnation proceeding between the same parties and in refusing to give plaintiff's (appellant here) requested instructions No. E and F excluding and directing the jury to disregard such evidence. (a) In condemnation proceedings special benefits may be set off against both the damages to the remainder or the value of the part taken and the time with reference to which compensation is to be made is the date of the appropriation, 2 Lewis on Eminent Domain (3 Ed.), sec. 669, pp. 1149 to 1150; Newby v. Platte Co., 25 Mo. 258; Bennett v. Woody, 137 Mo. 377; Howell v. Jackson County, 262 Mo. 403; State v. Jones, 15 S.W. (2d) 338; McReynolds v. K.C. Street Ry., 110 Mo. 484, 19 S.W. 824; Ragan v. Kansas City, etc., Ry., 111 Mo. 456, 20 S.W. 234; Lingo v. Burford, 112 Mo. 149, 20 S.W. 459; Spencer v. Met. St. Ry. Co., 120 Mo. 154, 23 S.W. 126; St. Louis, etc., R.R. Co. v. Fowler, 142 Mo. 670; Kansas City, etc., Ry. Co. v. McElroy, 161 Mo. 576, 72 S.W. 913; McElroy v. Kansas City Air Line, 172 Mo. 546, 72 S.W. 913; Miller v. St. Louis, etc., Ry. Co., 162 Mo. 424, 63 S.W. 85; Hosher v. Kansas City, etc., Ry. Co., 60 Mo. 303; Sedalia, etc., Ry. Co. v. Abell, 18 Mo. App 632. (b) A finding of commissioners or the verdict of the jury in a prior condemnation proceeding are not admissible to prove value. Mayor of Lexington v. Long, 31 Mo. 369; City of Springfield v. Schmook, 68 Mo. 394; Howe v. Howard, 158 Mass. 278; San Luis Obispo v. Brizzalara, 100 Cal. 434, 34 Pac. 1083; Shoemaker v. Munsey, 37 Mo. App. (D.C.) 95; 2 Lewis on Em. Do. (3 Ed.), sec. 669, pp. 1149 to 1150; M.P. Ry. Co. v. Roberts, 187 Mo. 309; City Water Co. v. Hunter, 6 S.W. (2d) 565. (c) The admission in evidence and reading to the jury the petition, judgment and instructions in a prior condemnation case brought collateral matters before the jury which should have been rejected. 22 C.J., sec. 89, p. 158, note 54a; Cape Girardeau, etc., Ry. Co. v. Blechle, 234 Mo. 471, 137 S.W. 974; Cantwell v. Johnson, 236 Mo. 575, 139 S.W. 365; Ritter v. First Nat. Bank, 87 Mo. 574. (d) The court erred in refusing plaintiff's instructions No. E and F excluding and directing the jury to disregard such evidence. Gutzweiler v. Lackman, 39 Mo. 57; Pavey v. Burch, 3 Mo. 477; Smith v. Bailey, 209 S.W. 945; State v. Rothchild, 68 Mo. 52; Vail v. N.P. Ry. Co., 313 Pac. 446. (2) The court erred in giving Instruction No. 1 at the request of defendants for the reasons that in the light of other instructions given (a) said instruction improperly instructed the jury as to the measure of defendant's damages; (b) said instruction does not refer the jury to any definite time as to which it should determine the value of the land and the damage, if any; (c) said instruction does not provide the jury with any rules for the determination of the damages, if any, which defendants sustained by the appropriation of their land; (d) said instruction confuses the jury as to the measure of damages in first instructing the jury to determine the damage to the whole farm and then subsequently specifying various items of damages for which they were instructed to allow defendants compensation, thereby making it possible for said jury to conclude that the particular items mentioned by the court might be subjects of compensation in addition to the damages sustained by the land as a whole; (e) said instruction comments on the evidence; (f) said instruction assumes as facts matters in issue; (g) said instruction fails to confine the damages to be determined to those arising from construction of the road; (h) said instruction is broader than the scope of the testimony. Chicago, S.F. & C. Ry. Co. v. McGrew, 104 Mo. 282; St. Louis, O.H. & C. Ry. Co. v. Fowler, 113 Mo. 458; In the matter of Forsyth Blvd., 127 Mo. 417; Crow v. Houck's Ry., 212 Mo. 589; Ganey v. Kansas City, 259 Mo. 654; Miller v. Busey, 186 S.W. 983; Kibble v. Ragland, 263 S.W. 507; Smith v. Sovereign Camp. Woodmen of the World, 179 Mo. 119, 137; State ex rel. v. Ellison, 270 Mo. 645, Kuhlman v. Water, Light & Transit Co., 307 Mo. 607; K.C.C.C. & St. J. Ry. Co. v. Couch, 187 S.W. 64; 1 Blashfield Instructions to Juries, p. 233 et seq.; 2 Thompson on Trials (2 Ed.). 1546; 38 Cyc. 1646; 14 R.C.L. 738, et seq. (3) The giving of defendants' Instruction No. 2 was prejudicial error. (a) Instruction No. 2 told the jury they could not consider a very important type of special benefits; that they should not give condemnor credit for these nor use them in mitigation of damages. State ex rel. State Highway Commission v. Jones et al., 15 S.W. (2d) 338; State ex rel. State Highway Commission v. Duncan, 19 S.W. (2d) 465; St. L.O.H. & C. Ry. Co. v. Fowler, 142 Mo. l.c. 683-684; Rives v. City of Columbia, 80 Mo. App. 173 Ripkey v. Binns. 263 Mo. 505; Newby v. Platte Co., 25 Mo. 258. (b) The error was not cured by the giving of other instructions. 14 R.C.L. (Instructions, sec. 72), p. 812; 36 Cyc. 1602-1608; Hickman v. Griffen, 6 Mo. 37; Thomas et al. v. Babb et al., 45 Mo. 384; Mansur-Tebbetts Implement Co. v. Ritchie, 143 Mo. 587; Kuhlman v. Water, Light & Transit Co., 307 Mo. 607; State ex rel. v. Ellison, 270 Mo. 645; James v. Mo. Pac. Ry. Co., 107 Mo. 480; Hickman v. Link, 116 Mo. 123; Stewart v. Dickson, 290 Mo. 516; Goodwin v. Eugas, 290 Mo. 673; Soomer v. Continental Portland Cement Co., 295 Mo. 519; Kibble v. Ragland, 263 S.W. 507; Miners & Merchants Bank of Flat River v. Richards, 273 S.W. 415; Wooley v. Wabash Ry. Co., 274 S.W. 871; Phillips v. American Car & Foundry Co., 274 S.W. 963. (4) The court erred in allowing witnesses for the defendant-landowners to restrict their testimony as to damages suffered to those accruing to the 40-acre tract which was bisected, but which was a part of a larger parcel of land which was used as a unit. Sutherland on Damages (4 Ed.), sec. 1088; Nichols on Eminent Domain (2 Ed.), sec. 241; Elliott on Roads and Streets (4 Ed.), secs. 280 and 288; 2 Elliott on Railroads (3 Ed.), sec. 1257; Chicago, M. & St. P. Ry. v. Baker, 102 Mo. l.c. 559; Glendenning v. Stahley (Ind.), 91 N.E. 234; Springfield & S.R.R. Co. v. Calkins, 90 Mo. 538; St. L. etc., R.R. Co. v. Drummond, 205 Mo. 167; Railway v. Aubuchon, 199 Mo. 352; Railway v. Waldo, 70 Mo. 629; Union Elevator Company v. Kansas City, etc., Ry. Co., 135 Mo. 353; Kansas City Suburban Belt Ry. Co. v. Norcross, 137 Mo. 415. (5) The court erred in permitting the counsel for defendant in argument to the jury, over the objection of plaintiff, to refer to matters not in evidence and erred in permitting counsel to appeal, by matters not in the record, to the prejudice and passion of the jury. (a) It was error to overrule the objection of counsel for plaintiff and to refuse to rebuke counsel for defendant for the latter's statement, in argument to the jury, to the effect that certain improvements were being made in the City of St. Louis for which the landowners were being paid millions and millions of dollars. Gibson v. Zeibig, 24 Mo. App. 65; Evans v. Trenton, 112 Mo. 390; Myer v. Daues, 315 Mo. 186, 285 S.W. 986. (b) The court erred in overruling plaintiff's objection to that part of the argument to the jury wherein counsel for defendant stated in effect, that unless substantial damages were awarded defendant he would be overdrawn at the bank and probably have to borrow money. Gibson v. Zeibig, 24 Mo. App. 65; Huggins v. City of Hannibal, 280 S.W. 74; Buck v. St. Louis Union Trust Co., 185 S.W. 208; Neff v. City of Cameron, 213 Mo. 350; Buck v. Buck, 267 Mo. 644.

W.W. Botts and Abbott, Fauntleroy, Cullen & Edwards for respondents.

(1) There was no evidence in the case tending to show that plaintiff's farm received any special benefits from the establishment of the road or the widening of it. (2) It was proper for the defendant to prove that in 1923 the state had by purchase and condemnation obtained his land for a hard-surface road and that the benefits of such a road to his farm had then been taken into account. Such testimony had a strong tendency to prove that special benefits could not be taken into account in this condemnation suit. Guyer v. Davenport, R.I. & N.W.R. Co., 196 Ill. 370, 68 N.E. 732; Gulf, C. & S.F. Co. v. Brugger, 24 Tex. Civ. App. 370, 59 S.W. 556; Gosa v. Milwaukee Light etc. Co., 134 Wis. 369, 114 N.W. 815, 15 L.R.A. (N.S.) 531; Oregon Short Line R. Co. v. Fox, 28 Utah, 311, 78 Pac. 800; State v. Evans, 3 Ill. 208; Chicago v. Lord, 277 Ill. 397, 115 N.E. 543; Chicago Sanitary Dist. v. Boening, 267 Ill. 118, 107 N.E. 810; Chicago v. Lonergan, 196 Ill. 518, 63 N.E. 1018; Glendenning v. Stahley, 173 Ind. 674, 91 N.E. 234; Western Newspaper Union v. Des Moines, 157 Iowa, 685, 140 N.W. 367; Roberts v. Brown County, 21 Kan. 247. (3) Instruction number two, given for Day, is supplemented by, and the language used therein defined in. Instructions A and B given for the plaintiff, and when all were read together said instruction two is not erroneous. (4) It was proper to offer evidence as to separate subdivision of the farm and no error can result therefrom when the instructions properly advise the jury that the damage should be the damage to the farm taken as a whole. (5) The remarks of counsel in argument were not unwarranted or harmful and the appellant did not properly make or save exceptions to the ruling of the court in the matter of argument. Torreyson v. U.R. Rys., 246 Mo. 696; State v. McMillan. 171 Mo. 608; Miller v....