*1 jurors amendment. who could not When impar- penalty LARABEE,
assess the death but could al., et Thomas D. tially try guilt the issue or innocence Respondents, excluded, systematically result- state, unrepre- ing jury partial to the is CITY, Missouri, CITY OF KANSAS sentative of distinctive and constitu- Murnan, Appellants. E. Jack segment popu- tionally significant No. WD 35586. lation, underrepresentative of black and female citizens. Appeals, Court of Missouri Western District. appeal The record on this discloses that venirepersons five who indicated 15, Jan. 1985. consider capital punish- refuse to Rehearing Motion Transfer and/or ment were excluded for cause. Supreme Court and Denied Overruled 30, 1985, January On the United States 5, March 1985. Circuit, Appeals, Eighth Court of held Application for Transfer Sustained right “that a defendant’s sixth amendment April 1985. representa- have a that reflects a Aug. Retransferred 1985. Case community tional cross-section violated when at voir dire those persons Appeals Opinion Readopted Court of pun- who would capital refuse consider Oct. 1985.
ishment are Grigsby excluded cause.” Cir.1985) Mabry, (8th 758 F.2d
(Gibson, J., dissenting). circumstance,
In this ap- it would seem
propriate postpone review in this Court give pro-
and to the opportunity Gilmore immediately
ceed the remedy of habeas
corpus provided by 28 U.S.C. 2254. See § Harvey,
State v. 1985) J., (Donnelly, dissenting). longer “I no believe that * * purpose
serves useful to reiterate
[my position].” Harvey Traynor, Some
Open Questions Ap- on Work of State Courts,
pellate U.Chi.L.Rev.
(1957).
I concur. *2 Thus, remaining walls outward.
north brick wall of the warehouse was directly knocked onto the Larabees’ frame building, destroying damaging contents. $102,- awarded the Larabees *3 against city
628.00 as and Murnan. sum for About total damage building to the and the rest for personal property vehicles and buried the demolition The trial action. court con- trial, ditionally granted a new unless the Larabees filed of remittitur on damages the assessment of for Ward, City Atty., Richard N. the build- Dennis E. Lee, ing. complied, The and the City Atty., City, Asst. Kansas Larabees trial ap- for court pellants. judgment entered its for It judgment parties is from this that both Grounds, Gregory Ennis, 0. Browne & appeal. City allege Murnan no Jensen, City, respondents. Kansas for liability immunity, because of while the LOWENSTEIN, P.J., Before and SOM- Larabees contest the remittitur. NUGENT,
ERVILLE and
JJ.
appellants’
first contention is
LOWENSTEIN, Presiding Judge.
that
city
protected by sovereign
immunity.
legislature
While it is true the
operated
Larabees’ owned and
a
governmental
sovereign
reinstated such
plumbing
City,
business Kansas
Missou-
immunity
tort
at common
existed
law
ri. Their three-story
building
frame
537.600,
when it enacted
RSMo
situated
adjacent
south of and
to
§
a ware-
preserves
governmen
statute
still
house
caught
which
fire in
early
tal/proprietary
Bartley
Spe
distinction.
v.
morning
April
hours of
1981.
fire
cial
County,
School District
Louis
captain
St.
died as a
of one
result
of the ware-
of
1983).
868
This
However,
house
collapsing.
walls
by 3:08
provides
municipalities
distinction
that
a.m. the fire was
listed
“under control.”
injuries
not liable for
occur in the
which
About 7:00 a.m.
Chief Conninghton
Fire
negligent performance
governmental
aof
supervise
arrived on the scene to
the “mop-
function,
injuries
but are
liable
which
up” or “overhaul” operation. There was
performance
occur in
negligent
of a
danger
no
spreading
of the fire
creating
proprietary
City
function. Davis v.
St.
of
danger
a
building.
to the Larabee
Con-
Louis,
ninghton decided
knock
down the re-
question
here is
the demoli
whether
maining warehouse
walls
facilitate the
govern
tion of
the warehouse walls
a
mop-up
appellant,
and so contacted
Jack
mental or proprietary function.
Murnan,
City’s dangerous
building rep-
Conninghton specifically
resentative.
city points
told
to Missouri cases that
Murnan to knock the north
firefighting
governmental
wall of the
hold
is a
func-
building
warehouse
into its
tion.
City
City,
back
basement
Newson v.
Kansas
away
building.
from the
(Mo.App.1980);
Larabee
The S.W.2d
Heller v.
two
adjacent
Sedalia,
(1873);
walls not
to the Larabee
53 Mo.
McKenna v.
building
(1878).
City
Louis, Mo.App.
were to
knocked
be
outward. Af-
St.
giving
ter
Murnan
Firefighting
“performed
these instructions the
itself is
chief left.
good
gov-
Murnan obtained bids for
common
therefore a
of all” and
job.
demolition
duty.
City
Murnan told the
ernmental
St.
Davis
company
Louis,
selected
line
supra.
demolition
knock all
But another
of cases
Fletcher,
proprietary
(Mo.App.
that demolition is
indicate
1978).
In
v. City
function.
St.
Rothenhoefer
Louis,
(Mo.1966) Missou
& Sons Company, 525 S.W.2d faced with a motion for new When (Mo.App.1975). In present case the trial on the verdict, basis of an excessive verdict director limited damage to that the trial court has three alternatives. One incurred the demolition. The instruc- is to affirm the after verdict. The second is to tions, whole, read as a cannot be said to find grossly the verdict so excessive as to have created a misdirection to the indicate prejudice, bias and for which the requiring a reversal. only remedy is a new trial. Blevins v. *5 Motors, 602, Cushman 551 S.W.2d In a cross-appeal the Larabees coun 1977). The third is to tered alternative that the order $50,- of remittitur for require remittitur if the 000.00 verdict is excessive excessive because there was jury because “the an substantial evidence in made honest mistake the record sup port jury’s the full in $102,628.00. weighing verdict the evidence of as to the nature Even though the Larabees consented to the extent of the injury fixing and in the remittitur, 78.10, under Rule this does not damages and comparable inju awarded for preclude them from asserting on appeal ries under the rule of uniformity.” Nuss that the amount of remittitur was exces baum v. Kansas Stock Yards Co. of sive when the other party ap initiated the Maine, 335, (Mo.1962). 359 S.W.2d 341 peal grounds. on other This rule effective 1, 1981, January is as follows: present In the case the trial court followed the third alternative. The Consenting to a remittitur as a condi- question then is jury whether the made tion to the denial of a new trial does not give such a mistake as to preclude the trial court consenting the party from as- serting discretion to order a appeal jury on remittitur. A that the amount of the verdict verdict proper is deemed if that the excessive it exceeds amount of the remittitur is A the amount party party’s petition excessive. con- claimed senting to a remittitur may not supported initiate and the amount by evidence. C appeal the ground that but raise M Developers, Inc., & Berbiglia, Inc. v. the same on the party’s appeal. other 176, (Mo.App.1979). S.W.2d How ever, such is not the case here. Nor was general rule for the measure any mathematical by miscalculation made of damages for injury tortious prop to real jury the correcting. that needed The rule erty is the difference fair market value uniformity of application has no here. The of property the before and after injury the unnecessary order of remittitur or the cost to cor restoring of property, the jury rect a whichever is the award of the amount lesser amount. double Casada v. Hamby Inc., Excavating requested by plaintiff. the Co. 575 S.W.2d Lewis v. Envi (Mo.App.1978). only evidence Corp., rotech produced at trial on the fair market value Casada, of fair market value were supra,
As stated in not property ordinarily accepted). jury duty is has the- to assess an owner give opinion damages. to the value qualified to his and award reasonable McGow (Mo. though his even he is not a Hoffman, own an Here, Casada, expert. Here, as in jury real estate if App.1980). the owners valua by value, there was no demonstration either tion as the evidence of with the means that cross-examination other being figure the cost not lower of fair plaintiffs value, had used an erroneous method of any remittitur in amount market is valuing opinion of Lar property. their not appropriate as the verdict was ex and it was abee was substantial evidence cessive since it was within or the same weight to determine the Alterna pleading evidence. credibility given to be it. It is clear from $12,000.00 figure tively, if the total cost jury’s verdict of equated fair market value was to be with opinion found Larabees’ figure, as the as the lower with the verdict was within the credible. Since amount, top appropri remittitur would be for, range prayed supported by then if remittitur were considered avail ate evidence, product and was not the $15,000.00 figure arrived at able. miscalculation, this was not a mistake or unsupported the trial court was appropriate. remittitur was case where scope of review evidence. Even within the disposition point makes so What S, figure, judge’s to the trial P & favorable paucity is of evidence on fair difficult reversal would still result. supra, at building prior market value of the to demo portion ordering the order remit- That essentially lition. “Fair market value” is titur is reversed. bring by price sale respects in all is affirmed willing buyer who is also to a owner from a portion dealing parties, as to all but that compulsion buy. Bridgeforth under no is reversed and cause with remittitur (Mo.App. Proffitt, entering purpose of remanded for the sole $65,- 1973). testified as to the Larabee judgment in the amount of verdict figure being this value without fur 000.00 explanation ground. ther as to value of *6 city’s only incursion as to “value” was SOMERVILLE, Judge, dissenting. on cross-examination and resulted improvements of the be cost portion respectfully I dissent from equated is not to be Cost setting opinion aside majority “fair market value.” Henderson v. with entered the trial order of remittitur Smith, (Mo.App.1982). reinstating returned the verdict court and nothing on cross-examination city did parting com- My reasons for jury. opinion as to fair mar to show the owner’s fully explicated majority pany with improper upon ket an value was based Company, & Pisha v. Sears Roebuck Henderson, supra, standard. nor the statement of the did it so establish affirmed should be below guess or so unsure so as to owner to be a —period. original testimony. P & S diminish that Ford, Inc., 553 Ray Leasing Co. Smith (Mo.App.1977). Because of the
S.W.2d 733 put in a restrict judge
thin record the any cure to a verdict position
ed to afford real tool here
he felt excessive. grant for new trial on the
was to a motion being
discretionary basis of the verdict (there
against weight of the evidence
being no evidence as to value if the owner’s