Opinion
Opinion filed March 8, 1932.
1. — Highways, State — Condemnation — Lands Taken — Damages — Benefits — Presumption. A state highway presumptively confers upon adjoining land — on account of its physical relation to it — a special benefit.
2. — Same — Same — Same — Same — Same — Jury Question. Whether a state highway does in fact, in a given case, confer special benefits upon adjoining land is for the jury.
3. — Same — Same — Same — Same — Same — Set-Offs. Special benefits conferred upon adjoining land by a state highway, may be set off against the damage to the remainder as well as the value of the part taken.
4. — Same — Same — Same — Same — Compensation Fixed as of Date of Appropriation. The time with reference to which compensation for condemnation for a highway is to be made is the time of the appropriation.
5. — Same — Same — Same — Same — Measure of Damages. In ascertaining the measure of damages for each succeeding appropriation for a highway, it is immaterial that the land had previously been subjected to a public use which in its nature was an improvement, for if it be specifically benefited by each succeeding appropriation, the measure of such benefits is for the jury to determine as of the time the appropriation was made.
6. — Same — Same — Same — Same — Evidence — Prior Condemnation Suit — Competency. In a condemnation proceeding for state highway, the petition, judgment, and instructions in a prior condemnation suit, between the same parties, a separate and distinct proceeding in which other land was acquired, held inadmissible.
7. — Instructions — Condemnation Proceedings — Measure of Damages — No Specific Date — Not Misleading in View of Other Instructions and Evidence. An instruction on the measure of damages in a highway condemnation proceeding which directed the jury to take into consideration the market value of the land taken at the time the same was taken and the specific date appeared in plaintiff's corresponding instruction, and all the evidence relative to damages was directed to the same date, held not misleading as setting no specific time as the date from which damages should be assessed.
8. — Same — Same — Same — Assuming Injury — Not Erroneous. An instruction on the measure of damages in a highway condemnation proceeding held not erroneous as assuming disputed facts, particularly that damage would result to defendants from the condemnation as it was not a disputed fact that a part of defendants' land was taken and that it had a value, and therefore, to the extent of the value of the land taken, defendants' farm was indisputably injured or damamed.
9. — Same — Same — Same — Not Erroneous as Assuming Disputed Fact. An instruction on the measure of damages in a highway condemnation proceeding held not erroneous as assuming that the remaining land sustained damage or injury, because the qualifying words "if any" were used in that connection.
10. — Same — Same — Same — Elements of Damages — Not Erroneous as Comment on Evidence. An instruction properly advising the jury as to the elements which they may consider in estimating damages is not a comment on the evidence or giving any feature or element thereof undue prominence.
11. — Same — Same — Same — Instructions Singling Out Facts and Presenting Them Argumentatively — Prejudicially Erroneous. An instruction on the measure of damages in a highway condemnation proceeding which told the jury, that, "in determining the injury to the balance of the tract, you may consider the separation of the pasture, improvements, and their convenient connections, or inconveniences of crossing the road with farm machinery to farm separate tracts, the ill shape and the inconvenience of crossing the road to farm portions of the land cut off from the residence, of the hauling the products of the farm to the barn across the road, of the driving stock to and from one part of the farm to another for pasturage, and other purposes, in fact, anything that would injure the salable value of the farm," held prejudicially erroneous as singling out facts and presenting them argumentatively.
12. — Same — Same — Same — Ambiguous Instruction — Prejudicially Erroneous. An instruction on special benefits in a highway condemnation proceeding which told the jury that "in estimating the benefits, if any, which the land not actually taken by the plaintiff may receive because of the construction of the road through it, the jury are not permitted to consider any benefits, if any, which the community in general, or surrounding property owners, if any, may receive by reason of the construction of the road through said land; but said benefits, if any, must be confined to the special benefits which the farm of the defendants, through which the road runs will receive, and no other," held erroneous as ambiguous, and not cured by plaintiff's instruction.
13. — Appellate Practice — Assignment of Errors — Questioning Witnesses — Not Pointed Out in Abstract — Too General for Review. In a condemnation proceeding, an assignment of error, that witnesses were questioned as to injury or damage to the northwest forty acres of defendants' land and the appellate court are referred to no place in the abstract where this appears, held the assignment so made is too general to deserve attention.
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 P. 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 P. 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 P. 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. Fireman's Ins. Co., 206 Mo. App. l.c. 494; Cotton Lumber Co. v. LaCrosse Lumber Co., 200 Mo. App. 26; Milliken v. Larrabie, 192 S.W. 106; Sperry v. Hurd, 267 Mo. 639; Diehl v. Bestgen, 217 S.W. 555. (6) In our judgment, none of the objections urged by appellant possesses substantial merit and in view of the smallness of the verdict nothing but the most vital and material error should be considered.
This case went to the Supreme Court on appeal from the Circuit Court of Andrain County. It was argued and submitted in Division No. 1, whereupon that division, in a well considered opinion by Presiding Judge Atwood, stated the facts and disposed of the case as follows:
"This proceeding was instituted in the circuit court of Audrain County to condemn certain land belonging to defendants, who appear here as respondents, for right-of-way and drainage purposes in the location and construction of a certain state highway. The amount of land sought to be taken for right-of-way purposes was 5.28 acres; that sought for a channel for drainage purposes, fee not to be taken, was a strip not more than five feet in width extending at right angles from the outside right-of-way lines of said road at a certain station for a distance of fifty feet each way. This highway was located across defendants' 330 acre farm which consisted of five adjoining forty acre tracts, the west line of which extended one and one-fourth miles north and south; and three forty acre tracts and about ten acres off of the north side of another forty acre tract, all contiguous, immediately cast of and adjoining the north four of the five forty acre tracts first mentioned. The highway in question entered defendants' land near the middle of the south line of said ten acre tract, thence extended in a northwesterly direction to the northwest corner of the forty acre tract lying immediately north of said ten acre tract, thence in a northwesterly direction across a contiguous forty acre tract to the northwest corner thereof. The location of the state highway thus substantially bisected defendants' farm. The principal buildings and improvements were located slightly northeast of the center of the farm and were north and cast of the location of the state highway. Commissioners were appointed and they returned an award of $727.50 in favor of the landowners. All parties filed exceptions to this award and a jury trial was had resulting in a verdict of $1500 for defendant landowners. Plaintiff appealed from the judgment entered thereon.
"It appears from the evidence that for many years prior to about three years before this case was tried in the circuit court a dirt highway ran from the town of Mexico to the town of Paris crossing a stream known as Skull Lick Creek at the point where the highway now in question enters the ten acre tract above mentioned. From this point the old road ran west along the north bank of this creek to the southwest corner of said ten acre tract which was on the north and south quarter quarter section line, thence over defendants' land for a little over a quarter of a mile to a point slightly southwest of their residence, thence on a sharp turn west through defendants' land for a quarter of a mile thence north along defendants' west line in the general direction of Paris. About three years before this case was tried in the circuit court the State Highway Commission located and graded a hard surface state highway from said Skull Lick Creek crossing through defendants' land along a practically straight line running in a northwesterly direction to said sharp turn west near defendants' residence. Defendants executed and delivered conveyance for this right of way, but no agreement being reached for right-of-way sufficient to round off the sharp turn to the west a tract comprising about 3/10 of an acre was condemned for that purpose. This new road from Skull Lick Creek northwest to defendants' residence and the old road from this corner for a quarter of a mile west and thence north along defendants' west line were graded and maintained by the State Highway Commission until the hard surface state highway was further located from the corner near defendants' residence in a northwesterly direction to defendants' west line as first above described, when this condemnation proceeding was commenced. The fee sought to be taken was to widen the right-of-way previously acquired from defendants for the road extending from Skill Lick Creek to their residence and for the required new right-of-way from that point northwest to their west line. The 5.28 acre tract thus sought to be taken is exclusive of that previously acquired from defendants by right-of-way conveyance and condemnation, all of which is embraced within the right-of-way lines of the hard surfaced state highway as finally located.
"Counsel for appellant first urge that the court erred in admitting in evidence the petition, judgment and instructions of the prior condemnation proceeding between the same parties, and in refusing to give plaintiff's requested instructions E and F directing the jury to disregard such evidence. The doctrine of special benefits applicable to land a part of which is condemned in the location and construction of a state highway has been so recently stated and thoroughly considered by this court in State ex rel. State Highway Commission v. Jones et al., 15 S.W. 338, that it need not be reviewed a length in this opinion. It is applicable to this case and we again say, as we said there (l.c. 341), `a highway, such as was contemplated in this proceeding, presumptively confers upon adjoining land — on account of its physical relation to it — a special benefit; whether it does in fact in a given case (of the character of this) is for the jury.' Such benefits may be set off against the damages to the remainder as well as the value of the part taken. [2 Lewis on Eminent Domain (3 Ed.), section 61; Newby v. Platte County, 25 Mo. 258; Bennett v. Woody, 137 Mo. 377, 383, 38 S.W. 972; Howell v. Jackson County, 262 Mo. 403, 418, 171 S.W. 342.] The law is also well settled that the time with reference to which compensation is to be made is the time of the appropriation. [Ragan v. Kansas City S.E. Ry. Co., 111 Mo. 456, 20 S.W. 234, 235; McElroy v. Kansas City I. Air Line, 172 Mo. 546, 559, 72 S.W. 913, 917.] Hence it follows that in ascertaining the measure of damages for each succeeding appropriation it is immaterial that the land has previously been subjected to a public use which in its nature was an improvement, for if it be specifically benefited by each succeeding appropriation the measure of such benefits is for the jury to determine as of the time the appropriation was made. Counsel for respondent cite some Missouri decisions and a number from other states to the effect that the only benefits to be taken into consideration are those created by the change which necessitated the second appropriation. This expression is consistent with the view above indicated but it does not sustain respondents' contention that the petition, judgment and instructions in the prior condemnation suit, a separate and distinct proceeding in which other land was acquired, were properly admitted as evidence in this proceeding. Such matters were clearly incompetent, irrelevant and immaterial (22 C.J., sec. 89, p. 158; Railroad v. Blechle, 234 Mo. 471, 478, 137 S.W. 974; Cantwell v. Johnson, 236 Mo. 575, 595, 139 S.W. 365), and plaintiff's objections thereto should have been sustained. Plaintiff thereafter sought to exclude this evidence by offering instructions E and F directing the jury to disregard this evidence, and the court again erred in refusing them.
"Counsel for appellant next say that the trial court erred in giving defendants' requested instruction numbered 1. The instruction is as follows:
"`You are instructed that, in arriving at the amount of damages that the defendants have sustained, first, you will determine the value of the land taken by the plaintiff for its right of way; second, the injury or damage, if any, to the remaining portion of the land of the defendant by reason of the construction of the road. In estimating the damages you may take into consideration the market value of the land taken at the time the same was taken, and, in determining the injury to the balance of the tract, you may consider the separation of the pasture, improvements, and their convenient connections, or inconveniences of crossing the road with farm machinery to farm separate tracts, the ill shape and the inconvenient shape the remainder of the farm is left in for farming purposes, the inconvenience of crossing the road to farm portions of the land cut off from the residence, of the hauling the products of the farm to the barn across the road, of the driving stock to and from one part of the farm to another for pasturage, and other purposes, in fact, anything that would injure the salable value of the farm."
"A number of objections, some of little moment, are leveled against this instruction. We will discuss only those urged in appellant's printed argument. It is said this instruction set no specific time as the date from which damages should be assessed. It did direct the jury to `take into consideration the market value of the land taken at the time the same was taken.' The specific date appeared in plaintiff's corresponding instruction B, and as all the evidence relative to damages was directed to the same date, we are convinced the jury was not misled. It is next said that the instruction assumed disputed facts, particularly, that damage would result to defendants from the condemnation. It was clearly not a disputed fact that a part of defendants' land was taken and that it had a value. Therefore, to the extent of the value of the land taken, defendants' farm was indisputably injured or damaged. Nor did the instruction assume that the remaining land sustained damage or injury, because the qualifying words `if any' were used in that connection. It is also contended that parts of the instruction constituted unwarranted comments on the evidence and gave undue prominence to certain portions of the same. Properly advising the jury as to the elements which they may consider in estimating damages is not a comment on the evidence or giving any feature or element thereof undue prominence. Plaintiff's corresponding instruction B dealt with elements of damage in this manner and it is, therefore, not objectionable. But defendants' instruction did more. It singled out facts and presented them in argumentative fashion. It was prejudicial error to give the instruction in this form. Finally, the concluding clause, `in fact, anything that would injure the salable value of the farm,' is branded as a roving commission to the jury to go far afield. While this instruction only goes to the elements of damage and does not purport to cover the whole case or direct a verdict, it is probably open to this objection. On a retrial it can be improved upon in this and other minor respects which need not be discussed in this opinion.
"Appellant also insists that the court committed prejudicial error in giving defendants' requested instruction numbered 2, which is as follows:
"`The jury are instructed that in estimating the benefits, if any, which the land not actually taken by the plaintiff may receive because of the construction of the road through it, the jury are not permitted to consider any benefits, if any, which the community in general, or surrounding property owners, if any, may receive by reason of the construction of the road through said land; but said benefits, if any, must be confined to the special benefits which the farm of the defendants, through which the road runs, will receive, and no other.'
"The instruction is rendered ambiguous and, therefore, objectionable by the concluding words, `and no other.' Furthermore, the jury might infer from the language used that the special benefits to defendants' remaining land should not include such as accrued to the remaining land of other landowners from which a part had been taken. When the case is again tried the jury should be instructed on this point in a manner clearly consistent with our rulings in State ex rel. State Highway Commission v. Jones, supra, and State ex rel. State Highway Commission v. Duncan, 19 S.W.2d 465, 467. The inferences that might be drawn from this instruction are so inconsistent with plaintiff's requested instruction also given on the question of special benefits that the error in giving the former cannot be said to have been cured by giving the latter. [14 R.C.L., sec. 72, p. 812; James v. Missouri Pacific Ry. Co., 107 Mo. 480, 485, 18 S.W. 31; Mansur-Tebbetts Implement Co. v. Ritche, 143 Mo. 587, 612, 45 S.W. 634.]
"Counsel for appellant also say that witnesses were questioned as to injury or damage to the northwest forty acres of defendants' land, and that this was reversible error. We are referred to no place in the abstract where this appears, and the assignment so made is too general to deserve attention. Complaint is also made as to certain remarks of defendants' counsel made on oral argument. As this alleged misconduct will not likely occur on a retrial of the case it will not be reviewed here.
"On account of the errors above noted the judgment is reversed and the cause remanded for a new trial."
This divisional opinion was concurred in on the merits by all the judges of the division, but two of them being of the opinion that the court was without jurisdiction, the case was transferred to court en banc. There the case was again argued and submitted; whereupon the court, finding itself without jurisdiction, transferred the case to this court.
In view of the divisional opinion we have felt that a reexamination of the case here would be a work of supererogation. However, upon the insistence of counsel for defendant, we have made such reexamination. Our conclusion is that the judgment should be reversed and the cause remanded, for the errors pointed out in the divisional opinion. The Commissioner so recommends.
The foregoing opinion of SUTTON, C., is adopted as the opinion of the court. The judgment of the circuit court is according reversed and the cause remanded. Haid, P.J., and Becker and Nipper, JJ., concur.