276 Mo. 158 | Mo. | 1918
In this appeal from a judgment in street condemnation proceedings, all of the appellants and their friends seem to have favored us with separate briefs, similar in quantity to the pile of documents submitted to a famous jurist who decided the case without reading any of them. However, so learned was the defense made by the legal pundit of his “aleatory way of deciding law debates,” that the Rabelaisian satirist made a plea for his pardon, which it is not certain was allowed. [Rabelais, vol. 3, p. 277, Wallis Ed.] Warned by the meticulosity of present-day critics of the judiciary, as well as by the pitfall of the noted jurist, we have concluded it might not be altogether proper to put the briefs of the two parties and their collaborators in separate piles and “cast dies” for the result. We shall, therefore, eschew the ancient precedent (possibly valuable for quickness of decision in medieval times) and do what we can to extract the quintessence of the contentions from the voluminous briefs and, mayhap, in that way reach the very right of the matter presented by this appeal.
This is a proceeding begun by Kansas City, Missouri, in pursuance of its charter and an authorizing ordinance, to ascertain damages and benefits for opening, widening and establishing Sixth Street from the east line of Broadway to the west line of Grand Avenue and thence one block south to Admiral Boulevard. The machinery of the circuit court was properly set in motion and the issues were tried by a jury of six men. Before the origination of this proceeding, the people of Kansas City had voted $150,000 of bonds to cover the assessments against the city for damages to property that might be taken. Tripartite interests were represented at the trial; the owners of the land condemned seeking adequate compensation, the owners of the land benefitted seeking a just assessment of the charges and benefits, and the city, the protagonist of the improvement. After a prolonged trial and the adduction of evidence on the part of the various parties
Under the verdict $614,880.50 were allowed as damages for lands and property taken, of which amount there was assessed against the city the sum of $425,550, and the remainder was assessed against owners of property in the benefit district. From this judgment F. M. James & Sons China Company, Max Morris and John I. Glover duly appealed and assigned for error: the giving and refusal of instructions; the imperfec tion of the verdict; that the award of the jury of dam' ages was inadequate and confiscatory; the exclusion of the testimony of J. C. James; that the court erred in allowing an amendment of the verdict of the jury, and that the verdict, as to appellant, was not sustained by the evidence on the trial.
“ (G-38) The court instructs the jury that they are the exclusive judges of the facts, that in estimating the value aid damage of property, if any, they may act entirely upon their own knowledge anc^ judgment and may disregard the testimony of all or any of the witnesses. The testimony of witnesses is advisory only and the testimony of none of the witnesses is binding or conclusive upon the jury.”
That expert testimony or opinion evidence is never conclusive upon the triers of the fact is a proposition supported by all the text-writers and is the settled law of this State. The only effect of such evidence is informatory and advisory, but it is as competent and relevant for that purpose, and to that extent, as any other evidence given by a competent witness as to a matter of fact lying within his own knowledge; and while the jury may disregard the testimony of experts, if disproven by their own experience and knowledge or otherwise, they cannot do so without -first considering and weighing it and testing its credibility by their own knowledge and experience and by comparison with all other evidence of a contrary import. It would be quite illogical to say that the jury are compelled by law to listen to expert or opinion evidence and then, at the end of the trial, without any consideration or weighing of the tesimony thus adduced, render their judgment solely in accordance with their own personal views of the matter in controversy. The fault with the instruction under review is, that it failed to state, as a condition precedent to the right of the jury to “disregard the testimony of all or any of the witnesses,” that they could only exclude such testimony from their view after due consideration and giving it that weight which it was entitled to have, according to their own “knowledge and judgment” and taken in connection with the other testimony in the case. In other words, the correct
It is argued, however, on the part of the city and the owners of property in the benefit district,. that the above instruction was not inconsistent with instructions G-l given for the city, and G-50 given on behalf of the owners of property in the benefit district.
In G-l the jury were told, in substance, that their verdict should be rested upon consideration of all the evidence in the case in connection with their own judgment. In G-50 they were simply told they were the judges of the credibility of witnesses and not bound by any testimony as to damages against their own judgment and conviction. The three instructions
“The rule, reading together all the instructions given in a case, warrants the supplementing of an imperfect by a perfect instruction; or, in other words, the curing of omissions in one instruction by a complete and correct statement in another one; but it does not go to the extent of holding that an instruction given for respondent which is radically wrong — that is, perverts the law or prejudges the facts — can be cured by another on behalf of the same party, which is free from the vice of the former. Such repugnant directions afford no guide to the jury, nor can it be presumed that they followed one rather than the other.” [Tawney v. United Rys., 262 Mo. l. c. 609.]
See also Linn v. Massillon Bridge Co., 78 Mo. App. l. c, 118, and cases cited; Pyburn v, Kansas City, 166
The antagonism between the instruction quoted above and the other two on which respondent relies to cure the vice of the first, is this: by the first instruction (G-38) the jury were distinctly and explicitly told that in making up their verdict on the pivotal point of the value and damages to property — the sharp question in issue between the three parties to this litigation — they might base their estimate “entirely” upon their own view and might “disregard the testimony of all or any of the witnesses” — a clearer authority to the jury to evolve a verdict from the solitude of their own consciousness could not have been expressed in terms. On the other hand the two instructions given on behalf of respondents (the city and the property owners in the district) told the jury, in effect, that they could only use their own knowledge and judgment in connection %oith all the evidence in the case. (Italics ours). This is a correct statement of the law, but it was diametrically opposed to the statement contained in instruction G-38; for in that instruction the jury was pointed, as the sole source of a proper verdict, to the suggestions of their own intelligence, without any regard whatever to the testimony of all or any of the witnesses.
Our conclusion is that for the error in giving instruction G-38 in contradiction of the correct rule stated in the other two instructions for the same party, the judgment in this case must be reversed and the cause remanded.
II. As this cause must be retried, it is proper to rule on the instructions of the court on the measure of damages.
The instructions bearing on the measure of damages, complained of by appellants, seem to be in strict accord with the rulings of this court. [St. Louis v. Railroad, 266 Mo. l. c. 701-707, and cases cited; St.
The question received careful and discriminating consideration by Paris, J., in the case first cited above (266 Mo. 701), -which dealt seriatim with the three contentions of appellant in this case, i. e. (a) where damages -were allowable for the removal of a stock of goods from the land condemned to a new location, (b) for depreciation in value caused by such removal and reinstallment, and (c) for injury to the business of respondent on account of interruption and cessation during removal. Judge Paris held that none of these was embraced in the just compensation guaranteed in such cases by the Constitution, basing his conclusion upon the settled law of this State, the authority of standard text-writers and the adjudged cases elsewhere (with possibly one exception), concluding his review in the following terms:
“We therefore hold, in consonance with the great weight of authority everywhere, that respondent was not entitled to recover for loss of profits in its business during the removal of its stock of goods; nor for the expense of the removal of its stock of goods and personal property, as contradistinguished from fixtures, from its old location which was condemned, to a new location; nor for the depreciation in value of such personal property and stock of goods, caused by such removal and re-installation.” [St. Louis v. Railroad, 266 Mo. l. c. 707.]
Under the doctrine thus announced, the trial court did not err in its instructions bearing on the measure of damages, nor did it err in excluding the testimony of Mr. James as to the damage suffered by the cessation and interruption of his business and the removal of his stock in trade.
The other errors assigned by the learned counsel for appellant need not be discussed, since they relate
Eor the foregoing reasons the judgment against appellants is reversed and the cause remanded for further proceedings in conformity with this opinion. Tt is so ordered.