Steinmetz v. State, 30633

• Decision Date: 29 November 1967
• Docket Number: No. 30633,30633
• Citation: 249 Ind. 184,231 N.E.2d 232
• Parties: Bertha STEINMETZ and American Fletcher National Bank & Trust Company, as Executor of the Estate of Harry Steinmetz, Appellants, v. The STATE is Indiana, and Rodocker Motors, Inc., Appellees.
• Court: Indiana Supreme Court

Page 232

231 N.E.2d 232

249 Ind. 184

Bertha STEINMETZ and American Fletcher National Bank & Trust Company, as Executor of the Estate of Harry Steinmetz, Appellants, v. The STATE is Indiana, and Rodocker Motors, Inc., Appellees.

No. 30633.

Supreme Court of Indiana.

Nov. 29, 1967.

George A. Purvis, John W. Tranberg, Indianapolis, for appellants.

John J. Dillon, Atty. Gen., Kenneth M. Waterman, Deputy Atty. Gen., for appellees.

ARTERBURN, Judge.

This is an action brought for condemnation of certain real estate by the State of Indiana for highway purposes against the appellants and Rodocker Motors, Inc., who did not appeal.

During the pendency of the action Harry Steinmetz, the husband of appellant Bertha Steinmetz, died and American Fletcher National Bank & Trust Company was substituted as executor of the estate of said decedent.

The evidence and record show that Harry J. and Bertha Steinmetz were the owners as tenants by entireties of a certain tract of land on the southeast corner of Keystone Avenue at Stewart Street in the City of Indianapolis. Harry Steinmetz individually was also the owner of another tract of land across Stewart Street on the northeast corner of North Keystone Avenue. Both tracts were involved in this law suit. The Steinmetzes lived in a seven room dwelling house on the first described tract of land and there was a store room in front of the house where the Steinmetzes operated a business known as Keystone Meat Market. It is claimed that Mrs. Steinmetz owned this business individually, which was located on the property that she and her husband owned by the entireties.

The main question and contention here is that Mrs. Steinmetz is entitled to damages for the alleged loss of her meat market business located on the property owned by her and her husband by the entireties. This question is raised in the first instance by a long hypothetical question the appellants asked a witness, in which the meat market and all its personal property was described and in which estimated net profits were assumed for three of four previous years. The question concluded by asking for an opinion as 'to the market value of this market on February 25, 1960'. The court sustained objections to this question.

The appellants rely to a large extent upon the decisions in State v. Stabb (1948), 226 Ind. 319, 79 N.E.2d 392 and City of Evansville on Behalf of Dept. of Redevelopment v. Bartlett, et al. (1962), 243 Ind. 464, 186 N.E.2d 10. The opinions in these two cases have been reviewed a number of times by this Court since their rendition. In the Stabb case this Court attempted to reverse prior decisions. It is true that this Court stated that profits were an element to consider under the statute and disapproved a prior decision to the contrary--Illinois Central R. Co. v. Howard (1925), 196 Ind. 323, 147 N.E. 142, 148 N.E. 413. However, since that date a number of cases have disapproved such ruling.

In Elson v. City of Indianapolis (1965), Ind., 204 N.E.2d 857 we restricted the effectiveness of the Stabb case by stating that its holdings should be limited to a showing of a gross gallonage of gasoline sold on the premises or the total volume of business, and not the net profits. This was done on the rationalization that the gross business done had some relationship to the location of the real estate and the traffic and thereby was relevant as to the value of the real estate as a business site. The inquiry is directed to the highest and best use to which the real estate is adaptable.

In Hagemann, et al. v. City of Mt. Vernon, et al. (1958), 238 Ind. 613, 154 N.E.2d 33 it was stated that net profits made by a business on a particular location were too speculative, since they were affected greatly by the manner in which the business was conducted, the good will, the efficiency of the business organization and many other intangible factors not related to the land. It may be pointed out that a business may be moved and take with it its good will, the efficiency of its organization and all its personal property. However, those things attached to the real estate, such as the desirability of the location, which results in a large volume of traffic connected with a business, is an element attached to the real estate which may be taken into consideration by the appraisers in determining the value of the real estate as a business site.

In State v. Hierholzer (1965), Ind., 207 N.E.2d 218, at p. 220, we stated:

'Furthermore, in the Elson case we pointed out that the only effect of State v. Stabb, supra, was to permit the introduction into evidence of testimony as to the volume of business conducted on the land in order to show the value of such land, and that it was not the intent of the court in the Stabb case to create a new criterion of damages in the form of loss of business or loss of profits from such business.'

Finally, in State v. Jordan (1966), Ind., 215 N.E.2d 32, at p. 35 we stated:

'The case of State v. Stabb (1948), 226 Ind. 319, 79 N.E.2d 392 seemed to recognize the principle that loss of profits in a business was compensable in an eminent domain proceeding, overruling certain prior cases cited in that opinion. However, the Stabb Case has been criticized and distinguished to such an extent that we feel that it no longer has any legal significance.'

See also: Papp v. City of Hammond (1967), Ind., 230 N.E.2d 326.

The objection to the hypothetical question propounded as to the profits determined by the business located on the real estate in question was properly sustained by the trial court.

It is next urged that under the rule of the Bartlett case, supra, the appellant, Mrs. Steinmetz, was entitled to show the value of her business under the theory that she had a separate interest in the real estate other than that which she held by the entireties, and under such a separation of interests she was entitled to show what the value of her interest was. With this we cannot agree. If she had had a separate leasehold interest for a term of years, we would have a case similar to the City of Evansville on Behalf of Dept. of Redevelopment v. Bartlett, supra. The term of years and the character of the business ...