102 S.W.2d 666 | Mo. | 1937
Certiorari to the Kansas City Court of Appeals. The opinion of the Court of Appeals is reported in State ex rel. State Highway Commission v. Lindley, 96 S.W.2d 1065. The cause was a condemnation case instituted by the State at the relation of the State Highway Commission for the purpose of acquiring right-of-way for a state highway. The facts stated by the Court of Appeals are incorporated herein by reference. *805
Seven grounds of conflict are assigned. We will consider the assignments in the order presented.
The opinion is said to be in conflict with State ex rel. State Highway Commission v. Jones,
"The objection should have been sustained; and the witness should have been required to have given his opinion as to the value before and the value after the highway was built instead of merely stating that, in his opinion, there was no difference in such values."
[1] Although a conflict with a principle of law announced by this court is sufficient on certiorari (State ex rel. Lusk v. Ellison,
[2] The opinion of the Court of Appeals in holding that it was improper to show, on cross-examination of the defendant, that he was instrumental in getting the road located where it was later constructed, that he gave the right-of-way for this highway in another instance and solicited others to give theirs, is said to conflict with the principle declared in Bragg v. Railway Co.,
[3] The commissioners assessed the defendants' damages at $4100. Both plaintiff and defendants filed exceptions to that award. Upon a trial by jury there was a verdict for plaintiff, i.e., no damages were allowed defendants. The judgment entered upon that verdict found that the commissioners' award of $4100 had been paid into court for the use and benefit of the defendants and on motion of plaintiff judgment was entered against defendant for the $4100. The motion referred to alleged (in addition to the judgment findings above referred to) that a check for the amount of the commissioners' award "had been handed to the defendants by the circuit clerk." No evidence was offered on the motion and it was not shown whether the award had actually been paid to defendants. The Court of Appeals held that it was error under these circumstances to render judgment against defendants for the amount of the award. It is asserted that the conclusion reached by the Court of Appeals is in conflict with Railroad v. Clark,
The Clark case holds that the court has the power to enter a judgment in a condemnation proceeding against a landowner requiring him to refund if he has been paid more than the amount of the final judgment. Neither the Clark case nor the other cases cited hold that a judgment may be entered against the landowner for the difference between the jury's verdict and the commissioners' award in the absence of a showing that the defendant landowner actually received the amount of the award. The judgment in this case does not recite that defendants did receive the award and the opinion states that there was nothing in the record showing that they did. There is no conflict shown. However, it would be unnecessary and improper to remand the case for a new trial on the merits for such a defect in the judgment since the trial court could, upon direction, ascertain the facts and enter such judgment as the facts warranted. It does not appear that the Court of Appeals intended to remand the case for a new trial because of this error in the judgment, hence the opinion is not subject to relator's criticism.
[4] The Court of Appeals held that an instruction designated as Instruction No. 2, given for plaintiff, was misleading and prejudicial. The instruction is as follows:
"Instruction No. II. The court instructs the jury that in this case the burden of proving damages rests upon the defendants. Unless damages such as those defined in other instructions have been proved *807 by a preponderance or greater weight of the credible evidence none should be considered."
The language of the opinion is as follows (96 S.W.2d 1072);
"The burden is upon the appellants to show damages by the evidence; and, of course, it follows that, if none are shown, then there are none to be considered by the jury. Where such are shown, however, the burden is upon the appellants to show that the same are in excess of special benefits, if any, that the jury may find from all of the evidence accrued to appellants' lands by the construction of the road and the position of their lands thereon or by reason of any other matter; but the burden is upon the respondent to show such special benefits, if any, and not upon the appellants. In view of the contention by respondent in this case that the damages to appellants' farm were fully or in part offset and compensated by special benefits which had accrued to it, we are of the opinion that the instruction is misleading and prejudicial and should not have been given. In a case of this character, the questions of both damages and special benefits are involved; and such questions are so related and interwoven that the two should be considered together. It is true that appellants might have asked the proper instruction and have obtained it, but such would not have cured the misleading and erroneous character of respondent's instruction."
The conflict assigned is with our opinion in Railroad v. Bleechle,
We are referred to the fact that the St. Louis Court of Appeals in State ex rel. v. Baumhoff,
[5] It is next contended that the following language of the opinion is in conflict with Railway v. Bleechle, supra: *809
"The same vice inheres in respondent's Instruction No. 5 as in Instruction No. 2.
"Moreover, such Instruction No. 5 assumes that the cause in suit is that of the appellants when, in fact, it is respondent's cause, wherein the respondent seeks to condemn appellants' land for right-of-way and to compensate appellants for the land taken and such damages, if any, as may accrue to their lands not taken in excess of special benefits, by reason of the construction of the road and its location thereon; and the burden of proof throughout rests upon the respondent. [Spencer v. Barlow,
The pertinent portion of Instruction No. 5 is as follows:
"Instruction No. V. The court instructs the jury that the burden of proof is upon the defendants to prove their case by a preponderance of the evidence.
"By the expressions `burden of proof,' and `preponderance of the evidence,' the court does not mean the greater number of witnesses who testified on either side in the case, but does mean the greater weight of the credible testimony."
Conflict is charged because, it is alleged, the opinion places the burden of proof on plaintiff-condemnor throughout the cause while Railroad v. Bleechle, supra, expressly places the burden of proving damages on the defendant-landowner. The criticism made of this instruction by the Court of Appeals rests upon the court's construction of the word "case." If the instruction be construed to mean that the burden of proving all of the elements of the entire case or "cause," as it is referred to in the opinion, is upon the landowner then of course it is erroneous for obvious reasons. But, if the instruction means that the defendant landowners have the burden of proving their damages, then for reasons equally obvious, it is correct. We are cited to no case where this court has construed this or a similar instruction. The statement of the court that: "the burden of proof throughout rests upon the respondent (condemnor), Spencer v. Barlow,
[6] It is further contended that the opinion holds that it was error for plaintiff to fail to instruct the jury that the burden was upon plaintiff to prove special benefits. It is charged that the opinion is therefore in conflict with Erickson v. Lundgren, 37 S.W.2d 629, and Denny v. Brown, 193 S.W. 552, Sallee v. Railway,
We do not understand that the opinion holds that it was error for plaintiff to fail to instruct on this issue. The Court of Appeals was of the opinion, as heretofore stated, that Instruction No. 2 was misleading because it placed the burden of proving damages without also mentioning special benefits. Since that question has already been discussed too much in detail, it will not be reverted to again. There is no conflict with the cases cited.
[7] Further conflict is assigned because the opinion states that a request to the court to permit the jury to view the premises should have been made out of the hearing of the jury. We are referred to no case in which the contrary has been held. The only case cited is St. Louis v. Worthington,
"A view not being a matter of right, we think the proprieties and better practice require that the request to the court be made out of the hearing of the jury."
For the reason stated the record should be quashed and the cause remanded to the Kansas City Court of Appeals. It is so ordered. Gantt, J., concurs in result; Hays and Frank, JJ., concur. *811