Opinion
No. 7090.
February 10, 1953.
APPEAL FROM THE CIRCUIT COURT OF BUTLER COUNTY, RANDOLPH H. WEBER, J.
Robert L. Hyder, West Plains and Bruce A. Ring, Jefferson City, for appellant.
O. A. Tedrick, Poplar Bluff, Green Green, Will H. D. Green and H. D. Green, West Plains, for respondent.
This is a highway condemnation proceeding. The jury returned a verdict in favor of defendant for $1500 damage and plaintiff appealed.
Four witnesses, testifying for the defendant landowner, stated that the land prior to the acquisition of the right of way by the Highway Department was of a value ranging between $3500 and $5000 and that after the acquisition of the right of way, it was worth from $2000 to $2500 less. Some arrived at these amounts by valuing it as a whole and some by placing a value on it by the acre.
Five witnesses testifying for the plaintiff placed the value of the land prior to its acquisition by the Highway Department at amounts ranging from $1500 to $2500 and stated that in their opinion it had been benefitted by the building of the road as much as $400 or $500.
The last witness used by the plaintiff was one D. A. Pentecost, who testified that he had lived in Howell County since 1926, that he was acquainted with real estate values in the neighborhood where defendant's eighty acre farm was situated; that he lived within three or four miles of it on the same road that went through defendant's place and that her farm was worth about $2000 before the right of way was taken and that immediately after the road was built, her place was worth $500 more than that. He further testified that in making this estimate, he was taking into consideration the damage that might have been done to her place by taking the land, etc. On cross-examination, defendant's counsel asked if he had been one of the appraisers that appraised the defendant's land. To this question no objection was made. He stated that he had. He was then asked:
"Q. I will ask you if you didn't find that she had been damaged ____"
This question was interrupted by counsel for the Highway Department who objected and the court, after considerable discussion out of the presence of the jury, struck all of this witness' testimony from the record and instructed the jury to disregard it in its entirety. The court further instructed them that they must not take into consideration any testimony or inference relative to what the appraisers or commissioners had done in making their report.
The record before us shows that this same witness had been appointed one of three commissioners to assess the damage to this piece of land August 29, 1950, and that he had taken an oath that he would "faithfully and impartially perform and discharge all his duties as a commissioner in this cause in accordance with the law and the Constitution." On this same day, the three commissioners, one of whom was Mr. Pentecost, signed and filed a written report in which they found the damage to the land in question to be $500 as a result of the appropriation of the right of way. This report was sworn to before the Circuit Clerk of Howell County on the same day, and in the jurat it was stated that "to the best of their individual judgments" all the facts stated therein are "fair and just, both to those who will receive and to those who must pay said damages."
Under this state of facts, we have this anomalous situation; the same witness on the 29th of August, 1950, as a Commissioner, swearing the property has been damaged by the acquisition of the right of way in the sum of $500 and on the 18th day of September, 1951, as a witness at the trial, testifying under oath that the same property has been benefitted $500 and that the landowner was entitled to nothing.
It has been held that a commissioner or appraiser of the land is a competent witness as to the damages at the trial. City of St. Louis v. Abeln, 170 Mo. 318, 70 S.W. 708.
But it has also been held that the jury should not be informed that he had been a commissioner. City of St. Louis v. Schopp, 325 Mo. 480, 30 S.W.2d 733. City of St. Louis v. Smith, 325 Mo. 471, 30 S.W.2d 729. City of Cape Girardeau v. Hunze, 314 Mo. 438, 284 S.W. 471, 47 A.L.R. 25.
Furthermore, it is reversible error for the jury to be informed of the amount of the award of the commissioner. City of St. Louis v. Schopp, supra; School District of Kansas City v. Phoenix Land Improvement Co., 297 Mo. 332, 249 S.W. 51.
The trial in the circuit court is de novo, the award of the commissioners is functus officio and is not competent evidence at the trial by a jury. A commissioner's report is based, usually, on their own knowledge of land values, a view of the premises, talks with persons residing in the vicinity, testimony of witnesses taken in a rather informal way and their report and award are their conclusions so arrived at. The jury's verdict must be upon legal evidence presented at the trial.
But none of the cases above cited were based upon the facts confronting us. Clearly it would be unfair to the landowner for the plaintiff to use this witness, under the circumstances here, and the defendant be precluded from showing for the purpose of impeachment that on a previous occasion, under oath, he had sworn that the landowner was damaged in the sum of $500, while now testifying, also under oath, that the landowner was benefited $500 — a difference of $1000 in his two estimated, both referring to the same time — the time of taking. See State ex rel. State Highway Commission v. Blobeck Inv. Co., 233 Mo. App. 858, 110 S.W.2d 860. Counsel for the landowner was caught between two horns of a dilemma, if he cross-examined the witness he must necessarily bring out the amount of the award which was $500, a fact which the jury should not know, and if he did not cross-examine the witness, the testimony goes unchallenged. Counsel for the landowner must have thought that the least damage would be done to his client's cause by cross-examining the witness as to this former written statement under oath, rather than let his testimony go unimpeached. But in either event, defendant was liable to be injured by this revelation. This was the situation confronting the learned trial court and it decided that the least damage could be done under the circumstances by excluding all of the testimony of this witness and instructing the jury to totally disregard it.
In offering this witness, the plaintiff knew, or should have known, that he had been an appraiser, knew what his report of damage had been a as such and knew that there had been $1000 difference between his report as a commissioner and what he would testify to as a witness at the trial. Yet it introduced him as a witness and then sought to cut off cross-examination on a matter that could not be more material in affecting his credibility. The right to cross-examine under such circumstances was specifically upheld in City of St. Louis v. Worthington, 331 Mo. 182, 52 S.W.2d 1003, and the burden of requesting an instruction to limit such evidence to purposes of impeachment was upon plaintiff. It seems to us that the learned trial court, when confronted with this situation, had the right to exercise its discretion and we can think of no sounder method than that arrived at by the court, after sustaining plaintiff's objection. If the plaintiff was injured by the exclusion of this testimony, which we do not believe it was, as other witnesses testified to practically the same state of facts, it was in the nature of an invited injury because, when the objection to such cross-examination was made by its counsel, he was familiar with the entire factual situation. No objection was made to the evidence that the witness had been an appraiser (commissioner) which fact was also elicited on cross-examination.
We do not think the action of the trial court in excluding this testimony was reversible error. It was plaintiff's counsel that objected to the cross-examination and brought on the decision of the court to exclude the whole testimony.
Plaintiff-appellant objects to defendant's instruction No. 1, alleging that it permitted the jury to return a verdict for double damages. That instruction told the jury that if they believed the Highway Commission had appropriated some of defendant's land for road purposes and that she had been damaged thereby in excess of any special benefits she might receive, that
"in arriving at the amount of such damages, if any, to which Lina White is entitled you should first determine and allow to Lina White the reasonable market value of the land taken from such 80 acres by such Highway commission for road purposes. You should also allow Lina White whatever sum, if any, that you find from the evidence the whole tract of land has been damaged by the taking of the particular land for highway purposes. From these amounts, if any, so determined as aforesaid, you should deduct the value of any special benefits, if any, this particular whole tract of land will receive by reason of the establishment of such highway."
It is contended that this instruction permitted the jury first to allow the defendant as damages the value of the land taken, which was 3.77 acres, and then allow the same amount again in finding the damage the whole tract of land had suffered by reason of the appropriation of the 3.77 acres. The methods used in ascertaining the amount of damages in cases of this character are well stated in State ex rel. State Highway Commission of Missouri v. Craighead, Mo.App., 65 S.W.2d 145, 148. There it was said:
"Of course, in the final analysis, the measure of damages in a condemnation proceeding is the difference in the reasonable market value of the entire tract before and after the appropriation of the part taken. (Citing cases.) However, the same result may be and usually is reached in another way, which is by informing the jury that the landowner is entitled to recover the value of the land actually taken, plus the damage, if any, to the remainder of the tract of which that taken formed a part, less the special benefits, if any, accruing in consequence of the making of the improvement." (Italics ours.)
See also: State ex rel. State Highway Commission v. Huddleston, Mo.App., 52 S.W.2d 33; City of Springfield v. Schmook, 68 Mo. 394.
In the case of State ex rel. State Highway Commission v. Blobeck Invest. Co., Mo.App., 63 S.W.2d 448, an instruction very similar to the one here given was held to be erroneous, upon the ground that it did permit the jury to assess double damages. There the court said:
"It will be observed that this instruction allowed the assessment of double damages, in that it provided for a recovery by defendant measured by the value of the land actually taken, plus the difference between the fair market value of the property immediately before and after the appropriation, less the special benefits accruing by reason of the improvement. Obviously, under such rule, the value of the land actually taken would necessarily be twice considered by the jury, once as a specific item of damage, and again as its appropriation lessened the value of defendant's entire tract."
In the instruction before us, the court told the jury that the first item of damage was the reasonable market value of the 3.77 acre tract and the second item of damage, if any, was the amount the "whole tract of a land had been damaged by the taking of the particular land for highway purposes." It seems to us that under this instruction, the jury were allowed to twice include the value of the land taken. The last item should have specifically applied to the remainder of the whole tract after the land taken had been deducted.
Respondent cites St. Louis, O. H. C. Railway Co. v. Fowler, 142 Mo. 670, 44 S.W. 771, 775, but that opinion uses the word "remaining" twelve different times in describing the land upon which the second item of damages is to be assessed. Furthermore in that case the court gave the following instruction:
"The jury should first ascertain and assess the value on November 22, 1886, of the strip of land taken by the plaintiff for its right of way through said tract; and if the jury find from the evidence that the value of the remainder of said tract — that is, of either or both portions of said tract on either side of said railroad — was on November 22, 1886, diminished by the location of said railroad through it, then the jury must, in addition to the said value of said right of way, further allow the defendants the amount of any and all of such diminution in value." (Italics ours.)
Respondent further cites the case of Chicago, Rock Island Pacific R. R. Co. v. George, 145 Mo. 38, 47 S.W. 11, 13, as authority for justifying the instruction given here. That instruction is not exactly in the language of the one before us and in its opinion, the court said:
"The rule in this state in such cases is that the person whose land is taken for railroad purposes by the right of eminent domain is entitled, by the way of damages, to the value of the land actually taken for the right of way, and the damages occasioned thereby to the balance of the tract."
and further in the opinion it states:
"While this instruction is subject to verbal criticism, it is not, we think, erroneous. It does not, as we understand it, authorize the jury to allow double damages. Defendant was entitled to the value of the land actually taken for right of way, and also the diminution in value caused thereby, if any, to the residue of the land from which the right of way was taken; and this is all the instruction permits. It is not, it seems to us, susceptible of any other construction." (Italics ours.)
That case cites as authority, Doyle v. Kansas City S. Railway Co., 113 Mo. 280, 20 S.W. 970, 971, in which case it was said:
"The measure of damages was correctly declared by the court in the second instruction given on behalf of plaintiffs. It told the jury to take into consideration the actual value of the strip of land taken and appropriated for the right of way, and also the diminution in value caused thereby, if any, to the residue of plaintiffs' land from which the right of way was taken." (Italics ours.)
To the same effect are the following cases: State ex rel. State Highway Commission v. Huddleston, Mo.App., 52 S.W.2d 33; State ex rel. State Highway Commission v. Berridge, Mo.App., 166 S.W.2d 791; State ex rel. State Highway Commission v. Baumhoff, 230 Mo.App. 1030, 93 S.W.2d 104.
Assuming that the 80 acres was valued at $50 per acre, or a total of $4000 (and some of defendant's evidence showed that), under this instruction the jury could find defendant's damage to be the value of the 3.77 acres, or $187.50. Then if they further followed the instruction of the court and from the "whole tract of land", deducted the amount that it had been damaged by the "taking of the particular land" (3.77 acres) they would be including again the amount they had already allowed the defendant, thereby giving her double damages for the value of the land taken. The instruction was therefore erroneous.
This instruction is further objected to because plaintiff asserts it does not properly define "special benefits" and the court should have given the instruction offered by plaintiff allegedly containing a correct definition. The evidence shows little, if any, special benefits and when and if this case is retried, the court should instruct within the limits of that evidence. See State ex rel. State Highway Commission v. McCann, Mo.App., 248 S.W.2d 17.
It is further claimed that the court erred in limiting cross-examination of plaintiff to the value of the whole remaining tract of land and not permitting it to examine as to the value of component parts thereof, for instance, the house and other buildings and the two tracts of land separated by the road. Before the court sustained the objection, plaintiff had cross-examined rather extensively relative thereto and plaintiff could not have been hurt by the court sustaining an objection to further questioning along that line. Defendant's counsel specifically stated that he did not object to plaintiff's showing the value of the tract of land south of the highway. That was what plaintiff's counsel offered to prove. In this connection see City of St. Louis v. Turner, 331 Mo. 834, 55 S.W.2d 942.
Neither do we think it was error for the court, upon the evidence in this case, to exclude evidence that any damages were to be paid by Howell County.
The cause is reversed and remanded because of the error heretofore pointed out in Instruction No. 1.
BLAIR, J., not sitting.
McDOWELL, J., concurs.