Opinion
December 31, 1928.
1. EVIDENCE: Exclusion: No Proffer of Proof. It cannot be ruled that the trial court erred in excluding testimony of certain witnesses where, when appellant questioned them, the court sustained respondent's objections and appellant excepted but made no offer of proof. Under such circumstances this court cannot know what evidence appellant would have elicited from the witnesses, unless he states and offers to prove the facts to which they would testify.
2. MISCONDUCT OF COUNSEL: Assignment in Motion. Contentions that respondent's counsel were guilty of misconduct during the progress of the trial are not for consideration upon appeal unless assigned as error in the motion for a new trial.
3. EVIDENCE: Interested Witness: Condemnation: Bond for Right of Way. It is always competent to show the interest of a witness, direct or indirect, in the result of the case, as affecting his credibility. In the trial before a jury of exceptions to the award of damages for land taken for a highway, it is competent for the excepter to ask witnesses regarding the execution of a bond whereby they agreed to pay for the right of way.
4. ____: No Reason for Objection. An overruled objection to testimony admitted, without the assignment of any ground for the objection, amounts to no objection at all in the appellate court; and though an exception is saved to the ruling, the admissibility of the testimony is not reviewable.
5. ____: Plat. In the trial of exceptions to the amount of damages for land taken for a public highway, the excepter is entitled to offer in evidence a correct plat showing the location of the highway and how it cuts through his land and the improvements on each side.
6. ____: Former Road: Other Conditions. In assessing the damages for a state highway running diagonally through a forty-acre tract, evidence showing the location of the county road, the right of way taken and the character of the land on each side, the width of the highway and its direction, and the location, character and width of other roads in the immediate vicinity, is competent.
7. CONDEMNATION: Damages: Benefit to Other Tracts. In the trial of the damages resulting from the appropriation of a right of way for a state highway through a described forty-acre tract, consisting of 3.08 acres, where the petition alleges no benefit to any tract, the amount of benefits to the forty-acre tract may be considered in reduction of the damages, but benefits to other lands belonging to the same owner are not for consideration. The only benefits that are in issue, under such a petition, are those affecting the particular forty-acre tract from which the taking is made; unalleged benefits to adjoining and independent parcels belonging to the same owner, not described in the petition, cannot be considered.
8. ____: ____: Instruction: Assumption of Damage. An instruction which assumes the existence of a matter unequivocally conceded at the trial is not error; and on appeal the case is considered on the trial theory. An instruction which assumes that the running of a state highway through excepter's land will damage it is not erroneous, where the only disputed question is the amount of the damage, and appellant conceded, both before and at the trial, that damages would result from running the highway diagonally through the forty-acre tract.
9. ____: ____: ____: Damage to Whole Tract. An instruction telling the jury to consider the damages to the "whole tract" resulting from running the state highway diagonally through a forty-acre tract, is not erroneous, where the only tract mentioned in the petition or referred to by the witnesses, was the forty-acre tract. The words "the whole tract" could not have misled the jury, and at their worst were harmless.
10. ____: ____: Mutual Error: Measure of Damages. When both parties present the same issue to the jury by their instructions, neither can complain. Appellant cannot be heard to complain that the instructions given for respondent told the jury that in ascertaining the damages resulting from running a state highway diagonally through his forty-acre tract they should take into consideration the condition of the premises before the establishment of the road, the changed condition, etc., where the instructions given for appellant told them the same.
11. ____: ____: Amount of Commissioners' Award: Instruction. Where it was brought out during the trial before the jury that the commissioners appointed to assess damages had awarded the excepter three hundred dollars, that this sum was paid into court, that the land for the highway had been taken by the State Highway Department and that the excepter had taken down the money, it was proper for the court to instruct the jury that the Department had the right to take excepter's land and pay into court the money awarded him by the commissioners, and that he had the right to take the money thus awarded him pending the trial without in any way prejudicing his rights at the trial.
Corpus Juris-Cyc. References: Appeal and Error, 3 C.J., Section 736, p. 825, n. 53; Section 886, p. 979, n. 54; 4 C.J., Section 2608, p. 701, n. 47; Section 2620, p. 709, n. 26. Eminent Domain, 20 C.J., Section 261, p. 826, n. 99; Section 387, p. 983, n. 57; Section 409, p. 1018, n. 78; Section 488, p. 1116, n. 11; Section 489, p. 1119, n. 21. Trial, 38 Cyc, p. 1378, n. 3; p. 1666, n. 83. Witnesses, 40 Cyc, p. 2663, n. 52.
Appeal from Pemiscot Circuit Court. — Hon. Henry C. Riley, Judge.
AFFIRMED.
Edgar Shook and Ward Reeves for appellants.
(1) The court erred in admitting incompetent, irrelevant and immaterial evidence on the part of the excepter and in refusing competent, relevant and material evidence on the part of the appellant. (a) The court refused to permit plaintiff to show that the construction of this road caused a demand for land along the road and an increase in the value of land; and to show the condition of the land in reference to having no road before the construction of this road. In order to arrive at the peculiar benefits this farm would get by the improvement, all the surroundings, circumstances, location and present condition, amount of road and outlets or lack of outlets, should be shown to the jury. (b) Upon the question of damages to the farm as a whole in and by the way the road ran through the farm and the peculiar benefits to the farm by constructing a road across it, the farm should be taken as a whole, that is, as a unit; but the court upon request of exceptor's attorneys limited this inquiry to only forty acres of the farm. Thus, the road would cut this forty acres into practically two triangles leaving eighteen acres on one side and nineteen acres on the other; but if you took the farm as a unit, instead of there being a small nineteen acre field on the east side, there would have been a sixty acre field on the east side and the farm was not cut up so badly when viewed as an entire farm, and consequently, the damages to the whole farm, not so much. It was error to limit the inquiry as to forty acre tract instead of the inquiry as to the whole farm as a unit. Chicago Railroad v. Baker, 102 Mo. 559; Kansas City Railroad v. Story, 96 Mo. 622; St. L., K. W. Ry. Co. v. Knapp-Stout Co., 160 Mo. 412; McReynolds v. Railroad, 110 Mo. 484. (c) The court erred in refusing testimony showing peculiar benefits that this farm enjoyed by the road running through the farm and which benefits were enjoyed by other lands adjacent to and through which this road ran, but which were not enjoyed by lands being off the road but in the same neighborhood; and the court erred in holding that it was not peculiar benefits if other farms adjacent to and through which the road ran received the same benefits; and limiting the testimony to that theory of the case. Rives v. Columbia, 80 Mo. App. 173; Ripkey v. Bends, 264 Mo. 514; 20 C.J. 824, sec. 25, and footnote 90. (d) It was error under the pleadings to permit the excepter to show the crops growing on this land, and the fences. The exception to the Commissioner's report especially limits the right of recovery to the value of the land taken and the damages for the way the tract is cut into, and, being especially limited to those items, it is an error to bring in a matter not raised in the pleadings and which the appellant had no notice that they would have to meet. (3) The court erred in permitting the excepter, throughout the trial to inject into this case prejudicial matters against the plaintiff. Hawkins v. Mill Co., 168 Mo. App. 180; State v. Burns, 228 S.W. 769. (4) Instruction 1 is erroneous: (a) It tells the jury to consider "the damages to the whole tract by reason of the road running through it," and thereby assumes, and in plain words tells the jury that there was "damage to the whole tract." (b) It is peculiarly erroneous since the court limited the inquiry to forty acres of the farm; and having so limited the testimony the instruction is erroneous in telling the jury to consider "the damages to the whole tract." (5) Instruction 4 plainly tells the jury they must find damages for the excepter. It does not leave it to the jury to say whether there are any damages or not, and makes no exception for the special benefits to the excepter. It directs a verdict of damages for the excepter, and having directed a finding for damages for excepter it makes no deduction against same for benefits to the farm as a whole. Sec. 21, Laws 1921 (Ex. Sess.) p. 141; Bledsoe v. Stallords, 250 Mo. 165. (6) Instruction 5 is erroneous in that the excepter in his exceptions informed the court and jury that he had been allowed $300, and thereby got to the jury that the commissioners had considered excepter damaged over and above the benefits received in the sum of $300, and, having gotten the benefit of that, it was error to give this instruction, taking that testimony away from the jury to the effect that he had been paid this amount and took the money. Mo. Pac. Ry. v. Roberts, 187 Mo. 309; St. Louis Ry. v. Pfau, 212 Mo. 398.
Charles G. Shepard, C.E. Bragg and McKay Peal for respondent.
(1) Appellant was not injured either in the admission or rejection of evidence by the court. In estimating benefits the jury should be restricted to peculiar and direct benefit or increase of value as the result of the land in controversy in which other land in the same locality does not participate. Hickman v. Kansas City, 120 Mo. 125; Railroad Co. v. St. L. Union Stock Yard, 120 Mo. 541; McElroy v. Airline, 172 Mo. 555; Ketchum v. City of Monett, 192 S.W. 470. (3) Appellant was permitted to show all benefits derived by virtue of the road to the entire eighty acres of land, and respondent showed that his total damage was to the forty-acre tract over which the road passed which made an issue for the jury to pass upon and this issue was properly submitted to the jury by the instructions given by the court. (4) A point not made by appellant in its motion for a new trial cannot be raised for the first time in this court. State v. Scott, 214 Mo. 257; Alexander v. Grand Ave. Ry. Co., 64 Mo. App. 66; Vanstone v. Goodwin, 42 Mo. App. 39. (5) Instruction 1 is almost identical with the instruction approved by this court in numerous cases. McReynolds v. Ry. Co., 110 Mo. 487; Railroad v. Chrystal, 25 Mo. 544; Lee v. Railroad, 53 Mo. 178; Railroad v. Calkins, 90 Mo. 538; Railroad v. Waldo, 70 Mo. 629; Railroad v. Story, 96 Mo. 611. (6) Instructions 2, 4, and 5 given on behalf of respondent were proper declarations of law on matters involved in the case, and the court committed no error in giving them or either of them. St. L.K. W. Ry. Co. v. Knapp-Stout Co., 160 Mo. 396; Railroad Co. v. Waldo, 70 Mo. 629. (7) Instruction 5 withdrew from the consideration of the jury the assessment of damages by the commissioners. Any testimony as to the allowance of damages by the commissioners is wholly incompetent for any purpose, and surely the court committed no error in withdrawing this evidence from the jury. Mo. Pac. Ry. Co. v. Roberts, 187 Mo. 309; St. Louis Ry. v. Pfau, 212 Mo. 398.
This appeal comes to us from the Circuit Court of Pemiscot County, where the plaintiffs, Theodore Gary, C.D. Mathews, Murray Carleton, and J.R. Davis, composing the State Highway Commission of Missouri, brought suit against several parties, defendants therein, asking that a strip of ground for road purposes be condemned, the same to constitute a part of State Highway No. 9. This highway extends from St. Louis to the Arkansas line. Three commissioners were appointed by the court, who qualified and in due time returned their report, assessing the damages for the various landowners. It seems that the other defendants were satisfied with the sums awarded them as damages, but defendant Oscar Fowler (referred to in the record and hereinafter referred to as the excepter) was not satisfied with the amount awarded him, three hundred dollars. Exceptions in proper form were filed by him, hence the trial in the circuit court.
In the petition plaintiff described the land as being located in Pemiscot County, Missouri, as follows:
"A parcel of land out of the northwest quarter of the southwest quarter of Section 16, Township 16, north, Range 11, east, being more particularly described as follows: from the southwest corner of the northwest quarter of the southwest quarter of said Section 16, thence east 25 feet to a point, said point being the place of beginning, thence north 38 degrees 30 minutes east 1698 feet to the north line of the northwest quarter of the southwest quarter of said Section 16, thence east 102 feet, thence south 38 degrees 30 minutes west 1698 feet, thence west 102 feet to the place of beginning. All being in the northwest quarter of the southwest quarter of Section 16, Township 16, north, Range 11, east, and containing 3.12 acres more or less, of which 0.04 acre is occupied by the present State Highway, and 3.08 acres are new right of way, and belonging to Oscar Fowler."
The balance of the petition was in the usual form and need not be recited here. From all this, it will be seen that the petition asked for the condemnation of a strip of ground across forty acres of land owned by excepter; and excepter, in his exceptions filed, asked for a review of the report of the commissioners allowing him three hundred dollars as damages to the forty acres; and he also asked for a trial of that question by a jury.
The quantity of land taken is conceded to be three and eight-hundredths acres, and it extends across plaintiff's forty diagonnally. entering at the southwest corner and going in a straight line to a point a little west of the northeast corner, cutting said tract so as to leave a fraction more than eighteen acres on one side and a fraction less than eighteen acres on the other. The excepter's evidence tended to show that his land was worth one hundred and fifty dollars an acre, but that by the cutting of it by this highway its value diminished from one-third to one-half; while the plaintiff's evidence tended to show that the excepter's damages would not exceed three hundred dollars. The old county road was along the west and north sides of this forty acres and was a dirt road. The jury found in favor of the excepter, assessing his damages at seven hundred and forty dollars, and judgment was entered accordingly; from which judgment plaintiff duly appealed.
I. It is claimed by plaintiff that the trial court erred in excluding evidence offered in behalf of plaintiff, especially the testimony of the witnesses Bob Lee Smith, Dr. Warren No Offer Smith, A.J. Mathews and Everton Speers. We are to Prove. precluded from passing on this question for the reason that when counsel for plaintiff questioned these witnesses, the court sustained excepter's objections thereto; whereupon plaintiff excepted without making any offer of proof. We, therefore, do not know what evidence plaintiff would have elicited from these witnesses. If plaintiff desired to present this question to this court for decision, an offer of proof should have been made, so that this court could then pass on the question of whether or not such evidence was admissible. [St. Louis v. Babcock, 156 Mo. l.c. 152.]
II. (a) It is also claimed that there was misconduct on the part of excepter's counsel during the trial, and that the trial court failed and refused to rebuke counsel for Misconduct. making insinuations and intimations regarding the State Highway Department. We are unable to pass on these questions for the reason that counsel for plaintiff, in the motion for new trial, failed to assign as error the alleged misconduct of excepter's counsel. Many times this court has said that all errors, alleged to have been committed during the progress of a trial, must be included in the motion for a new trial, thereby giving the trial court an opportunity to correct its own errors; and errors not so assigned are not subject to review. [Adams v. Kendrick, 321 Mo. 310.]
(b) It was competent for counsel for excepter to ask plaintiff's witness E.W. Shade and others regarding the execution of a bond by them, whereby they and others agreed to Interested pay for the rights-of-way for this highway. It is Witness. always competent to show the interest of a party in the result of a case, either directly or indirectly, as affecting his credibility. [Koenig v. Railway Co., 173 Mo. l.c. 722; R.S. 1919, sec. 5410.]
III. (a) Counsel for plaintiff also claim that improper evidence was offered in behalf of excepter over plaintiff's objection, especially the evidence of excepter and Objection. the witness Walter Miller. From the record, we see that counsel for plaintiff objected to questions asked by excepter's counsel, without assigning any reason therefor. On the overruling of such objection, counsel saved an exception. This does not comply with the long established rule in this court that a party making an objection must, in fairness to the trial court and opposite party, state the ground of his objection. An objection without any reason therefor being assigned amounts to no objection at all, so far as this court is concerned. [Brennan v. City of St. Louis, 92 Mo. l.c. 488; Rice v. Waddill, 168 Mo. l.c. 120.]
(b) It was proper for excepter to offer in evidence a plat of his ground, showing the location of the state highway across it, and also showing the location of the old county road. The Plat. map was properly identified and, in fact, there was no controversy regarding its correctness. The jury were entitled to know the facts regarding the location of the state highway, the way in which it cut excepter's land and the location of the improvements on either side thereof. No reason can be seen why the map and the circumstances above detailed were not germane to the issue.
(c) Evidence was also properly admitted to show that prior to the construction of the state highway the county road, which was a dirt road, extended along the west and north sides of Other excepter's forty acres. All matters pertaining to the Roads. location of the ground in question, the width of the road, its direction and the location of other roads in the immediate vicinity were proper subjects for the consideration of the jury.
IV. As above stated, this is a proceeding to condemn three and eight-hundredths acres of land across the northwest quarter of the southwest quarter of Section 16, Township 16, Benefit to Range 11, east, owned by excepter. By referring to Other Tracts. the petition filed by plaintiff, it will be seen that this forty acres is twice described, and there is no mention whatever of any other land belonging to excepter. The issue, as thus presented, was the amount of the damages sustained by exceptor by reason of the taking of this part of his forty-acre tract for road purposes, less the benefits that he would receive. The excepter was brought into court upon the issue thus made, and it would have been unfair to him to have been required to answer to a different cause of action. Had plaintiff desired to prove the special benefits to other land owned by excepter in the immediate neighborhood, some mention thereof should have been made in the petition, for such benefits "must affect the particular parcel or tract of land from which the taking was made; benefits to separate and independent parcels belonging to the same owner cannot be considered." [2 Nichols on Eminent Domain (2 Ed.) sec. 247; Garrett v. St. Louis, 25 Mo. l.c. 512. See also Railroad v. Aubuchon, 199 Mo. l.c. 371; Hickman v. Kansas City, 120 Mo. l.c. 125; McElroy v. Railroad, 172 Mo. l.c. 557-8.]
As a matter of procedure, it is well established that a party cannot sue upon one cause of action and recover on another. [Beave v. Transit Co., 212 Mo. l.c. 352; Mark v. Cooperage Co., 204 Mo. l.c. 261-2; Henry County v. Citizens Bank, 208 Mo. l.c. 225-6.] "A party can only recover on the case he makes in his pleading." [Glass v. Gelvin, 80 Mo. l.c. 302.] The issues as made by the petition cannot be enlarged, either by the introduction of evidence or the giving of instructions. [Scrivener v. Railroad, 260 Mo. l.c. 432; 2 Thompson on Trials, sec. 2309.] The petition was not amended, and plaintiff did not ask leave to amend it. In view of the above authorities and especially in view of the pleadings, we must hold that the trial court committed no error in limiting the plaintiff to proof of special benefits to the forty acres in controversy, and in excluding evidence regarding the forty acres adjoining and owned by excepter.
V. (a) Counsel for plaintiff insists that error was committed in giving Instruction 1 for excepter, in that it assumes that the running of the road through excepter's land would Assumption damage it. This was not a disputed question, for of Damages. plaintiff's witnesses testified to such damage and gave their opinion as to the amount of the damages, and plaintiff alleged in the petition that plaintiff and excepter could not agree on the amount of the damages, although they in good faith had endeavored to do so. It should be further stated that the commissioners made their return of the amount of damages to which the excepter was entitled, and no exceptions thereto were filed by plaintiff. Where a matter is conceded both before and at the trial, it is not error to base an instruction thereon. [Woodson v. Railroad, 224 Mo. l.c. 697.] Where a case is tried on one theory, it must be considered by the higher court on the same theory; a party cannot change his position in the higher court. [Ellis v. Railway, 234 Mo. l.c. 677; Finkelnburg on Mo. Appellate Prac., p. 154; Elliott on Appellate Prac., sec. 489.]
This instruction refers to the "whole tract," and for the use of those words plaintiff asks a reversal. As the only tract referred to in the petition and in the evidence of the The Whole various witnesses was the forty-acre tract, we cannot Tract. see how the jury was misled by the use of such an expression. If it was error, it was a harmless error not affecting the merits of the case, for which we cannot reverse a judgment. [R.S. 1919, sec. 1513.]
(b) Complaint is made that excepter's instructions numbered 2 and 4 were erroneous in telling the jury what should be taken into consideration in ascertaining the damages to Mutual excepter, the condition of his premises before the Error. establishment of the road, the changed condition, etc. As these matters were set forth in instructions given on behalf of plaintiff, plaintiff cannot now complain, for many times we have said that when both parties present the same issue to the jury by their instructions, neither party can complain; for if error was committed, it was common to both parties, and therefore not reversible. [Von Eime v. Fuchs, 8 S.W.2d l.c. 827; Smart v. Kansas City, 208 Mo. l.c. 204.]
(c) Instruction 5 told the jury that the State Highway Department had the right to take plaintiff's ground and pay into court the amount awarded him by the commissioners, and that excepter had the right to take the money awarded him by the commissioners pending the trial without in any way prejudicing his rights in the trial. No objection can be seen to this instruction, especially as to facts that were brought out during the trial that the commissioners had awarded him three hundred dollars, that the ground had been taken by the State Highway Department, and that excepter had accepted the money that was paid into court. We can readily see how ingenious counsel, in the argument of the case, could refer to this in such a way as to prejudice the rights of excepter; hence, the court was justified in explaining the matter to the jury as it did.
The evidence was conflicting, but there was sufficient, if believed by the jury, to justify the verdict; this court cannot pass on the weight of the evidence.
The judgment is affirmed. All concur.