204 Mo. 565 | Mo. | 1907
This is an appeal from the circuit' court of Franklin county in a condemnation proceeding wherein the plaintiff sought to condemn a right over and through a certain tract of land situate in the county of St. Louis and known locally as the Cartan tract, and containing about seventy-four acres. The proposed right of way runs from the northwest corner to the southeast corner. Previous to the commencement of this action defendant had laid off thirteen and forty-four one-hundredths acres as a subdivision, running across the northern end of the tract, into lots. Through this subdivision the St. Louis & Meramec River Railroad ran, bisecting the subdivision from east to west from the Big Bend road on the east to the west line of the tract. This subdivision, together with the land ly
I.' The exclusion of the testimony of Edward Rapp as to the value of the building stone in the quarry on the land is counted on as reversible error. This witness testified that he knew the quarry in the land lying west of the Lig Bend road and south of the Missouri Pacific. He was then asked if from his observa
Counsel for defendant was permitted to inquire of the witness to test his knowledge, and he testified he had examined various quarries with a view of ascertaining for contractors who desired to purchase stone for building purposes. He was then asked by counsel for defendant what “was the value of that stone as it lay in the quarry?” To this plaintiff objected, and the court said: “The objection is sustained for the present. This witness has never testified that he knows the value of the land.”
The question and answer were not as to the value of the land with the stone in it, but simply as to the value of the stone. He then testified that he knew the value of building stone such as was in that quarry; that according to his estimate there were thirty thousand squares and that he knew the value of it “by getting at what the material sells for in quarry without any labor attached to it at all — what amount you would charge for the rock.” The question was then put in this form, “With your acquaintance with the value of building stone such as you found in that quarry what was or would be the market value of such building stone per square on the 6th of November, 1902, at the place of the quarry?” To this, plaintiff objected, “because the witness has shown he does not know how to estimate the value of the land or the value of the stone with the land.” The objection was sustained and this presents the question now before us. Counsel for defendant cites no authority for admitting this evidence, whereas the plaintiff relies upon the statement of the rule by Lewis in his work on Eminent Domain (2
II. Much stress was placed in the oral argument on the exclusion of Mr. Baggot’s evidence, and upon a superficial view of the record there is much plausibility in the claim that, because Mr. Baggot on cross-examination had admitted that his knowledge of the subdividing of the north part of this tract was obtained by hearsay, the whole of his competent and relevant evidence had been unjustifiably excluded. Upon a full consideration of the record on this point, we are satisfied the circuit, court excluded that portion only as tó the subdivision. Immediately following that ruling the learned counsel for defendant propounded to the witness these questions and received these answers:
. “ Q. When you estimate the damages at 75 per cent south of the Missouri Pacific, you are excluding the land taken, are you not? A. Yes, sir. Q. And also, with reference to B. and A.? A. Yes, sir.”
These questions and answers would have been so obviously in defiance of the court’s ruling, if he had excluded all of Mr. Baggot’s evidence, that it could hardly have escaped rebuke. We conclude that the stenographer mistook the scope of the question, but that court and counsel all understood the motion to exclude went simply to the hearsay. No other rational. conclusion can be drawn from the whole context of the record on this point and the conduct of both court and counsel.
III. Prom the large part it occupies in the motion for new trial and the argument both in brief and orally, it appears that counsel attach especial importance to the charge of misconduct on -the part of three of the jurors in drinking with and being treated by one Essen,
On this point affidavits were filed both in support and in opposition to the new trial. The affidavits for the defendants are to the effect that Essen was seen sitting at a table drinking a glass of beer with one of the jurors on one occasion, and on another all three of the jurors and Essen and others were seen taking a glass of beer in a saloon in the town of Union during the recess of the court while > this cause was on trial, and one of the affidavits says that the juror and Essen were holding a serious private conversation. On the other hand, the affidavits for plaintiff tend to prove that Essen was not in the employ of the plaintiff; that at its request he had gone over the land in question and examined it with the view to testify his opinion as to the amount of damage; that owing to the fact that other witnesses had testified as he would have done and not to prolong the trial he was excused, but that he was in Union as a witness; that he was sworn with some twenty other witnesses and each of the jurors swears that he did not know or remember that Essen was sworn as a witness; but they each, as well as Essen, swear that while they took a glass or two of beer together the cause or trial was not mentioned between them; the jurors testifying that neither of them had violatéd the direction of the court as to conversing about the case. In addition to this the affidavits of other persons tend to show that the jurors are all men of good character and occupy responsible positions as business men. Essen admitted his friendliness to plaintiff, but denied that he had been or was to receive compensation for favoring the enterprise. The jurors testified they did not know Essen was an agent or in the employ of the plaintiff. This is a sufficient statement to indicate the issue.
As to that portion of the argument relating to one of the counsel for plaintiff being in and out of the saloon, based upon a remark of Essen in his testimony, it must he said that improper conduct on the part of tte counsel is not made a ground for a new trial and hence is not before us for review.
The exceptions must he overruled and the judgment affirmed, and it is so ordered.