Opinion
May 18, 1928.
1. CONDEMNATION: Witness: Commissioner. In the trial before a jury of an action to condemn land for a public use, the report of the commissioners previously appointed by the court to assess the damages becomes functus officio, and everything they did as such should be kept from the jury, and a commissioner is not competent to testify to any such matters.
2. ____: ____: ____: Soil Map: Hearsay. A commissioner appointed by the court to assess damages in a condemnation proceeding, is not competent, in a subsequent trial before a jury, to testify to the contents of a soil map made for the use of the commission, but such testimony not being based on his own knowledge, is mere hearsay.
3. INSTRUCTION: As Quoted in Abstract: Misleading and Ambiguous. If an ambiguous and misleading instruction is corrected in the abstract as filed, and as corrected is free from objection, respondent's assertion that the errors found in the instruction as first printed in the abstract were typographical and are not found in the original instruction given to the jury will be taken as true, where appellant files no counter abstract and the assertion is not otherwise controverted.
4. CONDEMNATION: Measure of Damages: Part of Tract: Instruction. When a part of defendant's farm is taken under condemnation proceedings, the measure of damages is the difference between what was the fair market value of the whole tract before and its fair market value after the appropriation, in view of the uses to which the land condemned is thereafter to be applied; and an instruction asked by the condemnor directing the jury to return a verdict for defendant for such sum as was the fair market value of the land appropriated, and for such further sum as the value of the remainder of the tract was diminished by such appropriation, announces a different measure, and should be refused.
5. ____: Judgment: Conformance to Verdict. It will not be ruled that the judgment entered in the condemnation proceeding was not within the purview of the verdict where no such error was raised in the motion for a new trial.
6. ____: Verdict: Conflicting Evidence. It is the province of the jury to consider the conflicting evidence as to the amount of damages caused by the appropriation of a part of defendant's farm for a public use, and there being substantial evidence for defendant supporting the amount of the verdict it will not be ruled on appeal that the verdict is excessive, although the plaintiff's evidence placed the damages at a much less sum.
Corpus Juris-Cyc. References: Appeal and Error, 3 C.J., Section 863, p. 967, n. 42; 4 C.J., Section 2091, p. 408, n. 5. Eminent Domain, 20 C.J., Section 189, p. 732, n. 53; Section 403, p. 1011, n. 19; Section 568, p. 1210, n. 59; Section 579, p. 1218, n. 9. Evidence, 22 C.J., Section 1226, p. 980, n. 88.
Appeal from Benton Circuit Court. — Hon. C.A. Calvird, Judge.
AFFIRMED.
Henry P. Lay and J.T. Montgomery for appellant.
(1) The court erred in refusing to permit defendants' witness English to testify that he examined the land carefully as a commissioner appointed by the court for that purpose, and the court also erred in refusing to permit said witness to state to the jury the kind and character of the soil and subsoil on the Hunter farm. The court also erred in restricting the said witness, in his testimony, to what he knew himself, and would not allow him to testify what he learned from the map or anyone else, about the land. Mo. Pac. Ry. Co. v. Porter, 112 Mo. 369. (2) The defendants' Instruction 1 was ambiguous and calculated to mislead the jury, for the reason that it requires the jury to find the fair, reasonable market value of the whole of defendants' farm, or a part thereof. And then proceeds to require the jury to find the reasonable market value of the portion of the defendants' land remaining in its then condition. (3) Plaintiff's Instruction 1-P correctly defines the law, and should have been given by the court. (4) The verdict was: "We, the jury, find for the defendants and assess their damages in the sum of $12,280." From this finding the court entered a judgment in favor of the defendants, Leona M. Hunter and George E. Hunter, for the sum of $12,280, and then directs that part of the money be paid to the defendant Missouri Trust Company, and the rest to the defendants Leona M. Hunter and George E. Hunter. This judgment is erroneous and is not within purview of the verdict of the jury. (5) The verdict of the jury is grossly excessive, and against the weight of the evidence. (6) Under the evidence as set forth in the record of this case, the verdict of the jury can only be the result of passion and prejudice on the part of the jury.
Jones Jones and F.M. Brady for respondent.
(1) The fact that English was one of the commissioners appointed by the court to assess the respondents' damages to their farm was not competent to go to the jury, either directly or indirectly, and the court did not err in refusing to permit the witness to testify that he examined this tract of land as a commissioner appointed by the judge of the circuit court. School District v. Phoenix Land Co., 249 S.W. 53; Mo. Pac. Ry. Co. v. Roberts, 187 Mo. 309; Railway Co. v. McElroy, 161 Mo. 584; Met. St. Ry. Co. v. Walsh, 197 Mo. 392. (2) The trial court did not err in refusing to permit defendants' witness English to testify from an alleged soil map which he had in his hand as to the kind and character of the soil and sub-soil on the Hunter farm, for the reason that he did not offer to testify from his own knowledge, but was attempting to inject the statements of other parties as evidence in the case, which was purely hearsay. 1 Greenleaf on Evidence (16 Ed.) secs. 98 and 99; Anderson v. Volmer, 83 Mo. 403; Johnson v. Jones, 66 U.S. 209, 17 L.Ed. 121; Pioneer Loan Co. v. Peck, 20 Tex. Civ. App. 111; State ex rel. Scullin v. Robertson, 187 S.W. 39. (3) Instruction 1 given by the court on behalf of the defendants is a clear expression of the law of this State. The typographical errors in the instruction as quoted in appellant's brief are obvious. The trouble with appellant is that the Instruction No. 1 of which he complains, in the copying of the same from the original, typographical errors occurred. This typographical error is what counsel have made much to do about, but we set forth a certified copy of the original instruction which was given to the jury by the trial court. In Instruction 1 as given by the court to the jury there is absolutely nothing to mislead the jury nor to confuse them. Railroad Co. v. Real Estate Co., 204 Mo. 575; Mo. Pac. Ry. Co. v. Porter, 112 Mo. 368; Prairie Pipe Line Co. v. Shipp, 267 S.W. 649; 20 C.J. 729-730, sec. 189; Howell v. Jackson County, 171 S.W. 342; K.C. Suburban Railroad Co. v. Norcross, 137 Mo. 415. (4) The court did not err in refusing plaintiff's Instruction 1-P, for the reason that it is not the law in such cases. Cases above. (5) The judgment entered on the verdict of the jury is not erroneous and is within the purview of the verdict of the jury, and the court did not err in entering it as it was entered. Kansas City v. Trust Co., 110 Mo. App. 647. (6) The verdict of the jury for $12,280 under the evidence is not excessive, nor against the weight of the evidence, but is abundantly supported by the evidence. Shelby Co. Railroad v. Dimmitt, 235 Mo. 489; Prairie Pipe Line Co. v. Shipp, 267 S.W. 650; Mallette v. City of St. Louis, 236 S.W. 63; City of St. Louis v. Railway Co., 197 S.W. 107; City of St. Louis v. Semple, 199 S.W. 967. (7) The verdict, being based upon conflicting evidence and the evidence showing that the case was tried in a fair and impartial manner will not be disturbed by this court. Milburn v. Beach, 14 Mo. 104; Railroad Co. v. Brick Co., 198 Mo. 712; Zehner v. Milner, 172 Ind. 493, 24 L.R.A. (N.S.) 383. (8) The questions of fact submitted to the jury on the damages sustained by the respondents in the taking of their property by the appellant being controverted, it was solely within the province of the jury to receive and weigh the testimony introduced on each particular issue of fact, and the determination by the jury of the question is conclusive. Drake v. Kansas City, 190 Mo. 390; Harrison v. Lakenan, 189 Mo. 609.
This is an appeal in a proceeding to condemn about 101 acres of respondents' 206-acre farm for the location of a dam and water reservoir. The farm was located about fourteen miles south of Sedalia and a mile from a railroad shipping point. Rock roads extended from Sedalia out to and past this farm, and Spring Fork Creek ran through it. This creek with two springs and a well furnished the water supply. The farm lay in a compact body nearly square, with the improvements located near the center of the north eighty acres. The east part of the farm consisted of bottom land adjacent to the creek. The west part was upland and thinner soil. The 101 acres which plaintiff sought to condemn included all the bottom land except about twenty-five acres below the location of the dam. It included the creek and springs, and left defendants only the upland and this small amount of bottom land, with no water except a well which sometimes went dry during the dry seasons of the year. Before filing the condemnation suit appellant had an interview with respondents, looking to its acquisition of this land. After this interview, and on the 21st day of August, 1925, appellant filed its petition in the Circuit Court of Pettis County to condemn the 101-acre tract. On the 4th of September, 1925, in vacation, said circuit court made an order appointing three commissioners to assess the damages accruing to respondents by reason of the taking of said 101-acre tract. Thereafter the commissioners so appointed made their report wherein they assessed the damages which respondents would sustain on account of the appropriation of said 101-acre tract at $6200 to which report respondents excepted and filed their demand for a jury. Thereafter a change of venue was taken and the cause was sent to the Circuit Court of Benton County, where on the 24th day of March, 1926, a trial was had to a jury which returned into court a verdict in favor of respondents for the sum of twelve thousand, two hundred and eighty dollars ($12,280). From the judgment entered thereon appellant has perfected this appeal.
Appellant complains of certain rulings of the trial court in connection with the testimony of J.J. English, one of the commissioners appointed by the court to assess Witness: damages, who testified as a witness for plaintiff. Commissioner. On direct examination counsel for plaintiff addressed the witness thus: "I believe you were one of the commissioners that brought —." Counsel for defendants thereupon interposed an objection which was sustained, plaintiff duly excepting. The objection was properly ruled. In Railroad v. Roberts, 187 Mo. 309, l.c. 321, and again in School District v. Phoenix Land Improvement Co., 249 S.W. 51, l.c. 53, we held that when a jury trial has been awarded defendant, the report of the commissioners and everything they did became functus officio and should be kept from the jury trying the case. Again, this witness when questioned as to the circumstances under which he examined the farm in question, started to reply as follows: "The instructions from this court —.' The trial court thereupon properly sustained an objection interposed by counsel for defendant. Further on in the course of his examination this witness said: "Well, at the time the examination was made, I had a soil map with me of the farm, and according to the soil map — ." Counsel for plaintiff then asked the witness "to explain to the jury what a soil map is." After explaining the nature of a soil map the witness further testified, "and so I have the map with me —." Counsel for defendant thereupon interposed an objection which was sustained, plaintiff duly excepting. We think the objection was properly sustained. The witness was evidently about to testify not from his own knowledge but from the contents of the soil map, which would have been clearly hearsay testimony. [Anderson v. Volmer, 83 Mo. 403, l.c. 407.]. There was no effort made to introduce the soil map in evidence.
Appellant insists that Instruction No. 1, given at the request of defendant, is "ambiguous and misleading," quoting said instruction as follows:
"The court instructs the jury that in determining the damages to which defendants are entitled for the taking and appropriating by plaintiff of one hundred and one acres of their Instruction. farm, to find a fair, reasonable market value of the whole of defendants' farm as it stood on the day of the appropriation by plaintiffs, or a part thereof, and you will find the fair, reasonable market value of the portion thereof of defendants' land remaining in its then condition. The differences will be the damages sustained by the defendants."
The alleged ambiguity grows out of the use of certain punctuation and words, particularly the word "or" in the clause "or a part thereof" near the middle of the instruction as above quoted, which respondents say are typographical errors not found in the original instruction as it was submitted to the jury. In the abstract of the record this use of the word "or" and other so called typographical errors are corrected and the instruction there appears as follows:
"The court instructs the jury that in determining the damages to which defendants are entitled for the taking and appropriating by plaintiff of 101 acres of their farm, you will find the fair, reasonable market value of the whole of defendants' farm, as it stood on the date of the appropriation by plaintiff of a part thereof, and you will find the fair, reasonable market value of the portion of the defendants' land remaining in its then condition, and the difference will be the damage sustained by the defendants." No counter suggestions being filed by appellant we assume that respondents' above assertions are not controverted. As last above quoted this instruction is not only free from the objections here urged by appellant, but it properly advised the jury as to the method that should be followed in ascertaining damages. [20 C.J. pp. 729-730; Prairie Pipe Line Co. v. Shipp, 267 S.W. (Mo. Sup. Ct.) 647, l.c. 649; Railroad Co. v. Real Estate Co., 204 Mo. 565, l.c. 575.]
Appellant next says that the court erred in refusing to give its requested Instruction 1-P, as follows:
"The court instructs the jury that your verdict must be for the defendant for such sum as you may find and believe from the evidence, was the fair market value of the 101 acres Measure of sought to be appropriated by the plaintiff, on the Damages. 10th day of September, 1925; and for such further sum, if any, as you may find and believe, from the evidence, the value of the remaining 105 acres of the tract owned by the defendants will be diminished by such appropriation."
In Railroad v. Real Estate Co., supra, we said:
"This court has time and again held that when a part only of a man's real estate is taken under condemnation proceedings the measure of damage is the difference between what was the fair market value of the whole tract or property before and its fair market value after the appropriation, in view of the uses to which the land condemned should thereafter be applied."
Above Instruction 1 given at the request of defendant, and not this instruction requested by plaintiff, embodies the correct rule. Hence, the trial court properly refused Instruction 1-P requested by plaintiff.
Appellant also says that the judgment entered in this case is erroneous and not within the purview of the verdict. However, it does not appear that any such point was raised in the Judgment. motion for a new trial, and it cannot be considered here.
Appellant next insists that "the verdict of the jury is grossly excessive and against the weight of the evidence." The evidence tended to show that the 206-acre farm was a good grain, stock and dairy farm, well watered by the creek and springs. Most of the bottom land, as well as the creek and springs, were included in the 101 acres sought to be condemned. Defendants introduced substantial evidence that the fair, reasonable market value of the 206-acre tract as a whole was $100 an acre, and that the reasonable market value of the remainder of the farm, exclusive of the 101 acres sought to be condemned, would be $20 to $30 an acre. Plaintiff's evidence as to the value of the 206 acres as a whole ranged from $40 to $85 an acre, and approximately the same value per acre was placed upon the remainder of the farm, exclusive of the 101 acres sought to be condemned. It was clearly the province of the jury to consider this conflicting evidence and draw its own conclusions therefrom. There was sufficient evidence to support the verdict, and we cannot say that the verdict was excessive. [Shelby County Railroad v. Dimmitt, 235 Mo. 489. l.c. 492; Prairie Pipe Line Co. v. Shipp, 267 S.W. (Mo. Sup.) 647, l.c. 650; City of St. Louis v. Semple, 199 S.W. (Mo. Sup.) 967, l.c. 968.]
Appellant also asserts that the verdict of the jury was the result of passion and prejudice. We have carefully examined the entire record and find nothing to support this assertion.
Finding no reversible error in the trial and submission of the case the judgment rendered therein should be and the same is hereby affirmed. All concur.