author: BRADY, Commissioner.

text:
    STATE of Missouri, at the relation of STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. Mabel Taylor STOTKO et al., Defendants, James B. McHugh, John C. McHugh, William O. McHugh, Ann McHugh, Joseph D. McHugh, Helene McHugh, Kenneth D. Kruel, Trustee, and Bank of Washington, a Corporation, Defendants-Respondents.
    No. 31153.
    St. Louis Court of Appeals. Missouri.
    Feb, 19, 1963.
    Robert L. Hyder, Melvin Englehart, Jefferson City, for appellant.
    Frank W. Jenny, James A. Cole, Jenny & Cole, Union, T. P. Hukriede, Washing- . ton, for respondents.
   BRADY, Commissioner.

This is an appeal from a judgment entered in the Circuit Court of Franklin County, Missouri, based on a jury verdict in the amount of $22,881.83 in a condemnation proceeding. The highest amount the appellant conceded respondents were entitled to as damages was $10,500.00. The amount in dispute is $12,381.83 and this court has jurisdiction. State ex rel. Burcham et al. v. Drainage District No. 25 et al., Mo., 271 S.W.2d 525.

The appellant’s first and main allegation of prejudicial error is that the trial court refused to permit the appellant to amend its petition. Since the decision herein is upon this allegation of error, it will be unnecessary to state the other two allegations of error briefed by the appellant or to recite the factual situation with respect to those contentions except to say that one of those allegations is without basis in the motion for new trial.

The respondents owned a subdivision on some 85 acres which had been platted and the larger portion of it divided into lots. The 10.68 acres which is the subject of this proceeding cut in an eastwardly-west-wardly direction across the south end of this subdivision, taking certain lots and cutting off the south 12 acres from the rest of the subdivision which would, upon completion of the highway, lay north of the highway. The water system for this subdivision was in that portion of the subdivision lying north of the roadway with the well which furnished the water for the subdivision lying about 300 feet north of the north line of the condemned strip of 10.68 acres. There was only one lot laid out in this 12-acre portion at the time condemnation took place. Unless the respondents could put water lines under the roadway and extending from the well to the 12-acre tract, that tract could not be given water from this well.

The petition seeking to condemn this 10.68 acres for right-of-way for the construction of Interstate Highway No. 44 was filed on December 30, 1959, and the theory upon which this case was tried was that, as filed, it would have prevented the respondents from constructing these water lines under the right-of-way. Commissioners were appointed and filed their report on March 4, 1960, and exceptions to their report were filed on March 11, 1960. On July 5, 1960, the appellant .filed its motion to amend the petition. That offered amendment was as follows:

"MOTION BY PLAINTIFF REQUESTING LEAVE TO AMEND PETITION
“Comes now the Plaintiff and moves the court to grant Plaintiff leave of court to amend the petition filed herein, by adding paragraph 13.20 to page 11 of said petition, which paragraph is as follows:
“The Plaintiff hereby agrees and does hereby reserve unto the Defendants, James B. McHugh, John C. McHugh, William O. McHugh, Ann McHugh, Joseph D. McHugh, Helene McHugh and Kenneth D. Kruel, Trustee, Bank of Washington, a corporation, the right, privilege and permission to install and maintain two water mains not less than four inches in diameter across the right-of-way described in paragraphs 13.10 and 13.11 of the petition herein, and subject to the regulations of the Plaintiff as set forth and contained in ‘A Policy on Location of Utility Facilities on State Highways’, a copy of which is hereto attached and marked Exhibit ‘A’.”

Exhibit A is reproduced in the transcript beginning on page 16 and ending on page 26 thereof. This policy statement includes “Interstate system, or projects having interstate standards”, “High Type Roads”, and “Low Type Roads”. It is to be noted that the offered amendment does not specify the particular type road involved but, as the respondents state in their brief, the petition alleges that this route had been approved by the Federal authorities and the only fair inference is that the provisions of Exhibit A referring to the interstate system or those having interstate standards would apply in this case. Subsection B, paragraph 2 of those specifications reads as follows:

“2. All underground facilities crossing the main roadways shall be encased between the outer shoulder lines of the two main roadways as a minimum, and shall be installed and maintained without cutting or damaging the roadway surfacing or entering or leaving the main roadways for maintenance operations.”

On July 26, 1960, the trial court heard evidence offered by the respondents on the motion to amend. This evidence was directed to whether or not George A. Detche-mendy, right-of-way agent for the appellant, and one Mauer, district right-of-way supervisor, were present with the court-appointed commissioners when Mauer informed the commissioners that they were to appraise the property in the light that the respondents would not have the right to run water pipes across the condemned strip. Mauer also testified that he never told the commissioners that water could be put under the highway. Objection was vigorously made by the appellant to the above testimony of Detchemendy and Mauer. Counsel for the appellant then testified that he had informed counsel for the respondents on June 9th that if his clients would apply for a permit to install these water lines, it would be granted subject to the regulations above set out. This was disputed by respondents who objected to such testimony. The motion was taken under advisement and overruled by the trial court on October 4, 1960. The evidence stated above was the only evidence offered upon the motion. The trial began on January 20, 1961. The appeal in this case was first taken to the Supreme Court of this state and the case was transferred to this court. By stipulation of counsel, this case was continued on our docket and heard during our October, 1962 docket.

With respect to the appellant’s allegation of error regarding the trial court’s action in refusing it permission to amend, the law in this state is that the condemning party may appropriate less than the full rights available under the statute, and the fact that the use is so limited is a proper matter for consideration in fixing the amount of damages to be allowed. St. Louis K. & N. W. Ry. Co. v. Clark, 121 Mo. 169, 25 S.W. 192, 26 L.R.A. 751, on rehearing, 25 S.W. 906. See also Union Electric Co. v. Levin, Mo.App., 304 S.W.2d 478, [4]; State ex rel. State Highway Commission v. Wright, Mo., 312 S.W.2d 70. In the Clark case, supra, 121 Mo. at 194, 25 S.W. at 198, the court said:

“Where the condemning company proposes to reserve to the landowner some right or easement not reserved by the statute itself, the reservation should be made in the original or by an amended petition. In other words, the petition should [specially] set forth what the company proposes to take. The easement reserved to the landowner should be specifically defined and located, so that the rights of the parties may be then and thereafter protected. If the proposed reservation is not specifically stated and defined, the court can sustain a motion to make the petition more specific and definite in this respect.”

On rehearing, 121 Mo. at 200, 25 S.W. at 908, the court held that an amendment of such a nature would entitle the landowners to a postponement if they were taken by surprise. In Shell Pipe Line Corporation v. Woolfolk, 331 Mo. 410, 53 S.W.2d 917 at [1-3] p. 918, it was held that the decision to exercise less than the full rights available under the statute should be expressed with reasonable certainty in the petition or in the amendment. Seizing upon this requirement, respondents urge that, to quote from their brief, “ * * * if the amendment had been permitted as presented, the issues would have been so confused that the jury could not have had the proper evidence as to the actual conditions * * Their contention is that due to the complex nature of the provisions of Exhibit A, the amendment did not comply with the requirement that any reservation to the respondents or diminished taking by the appellant be stated with reasonable certainty.

Respondents’ contention that the applicable provisions of Exhibit A would so confuse the jury that it could not understand the actual conditions is without merit for two reasons. In the first place, as is apparent from the Clark case and the other cases cited herein, the appellant could amend its petition if, by the amendment, it reduced the extent of the appropriation. The question raised by the respondents is whether the amendment does so. If it does not, then obviously the trial court did not err in refusing to allow the amendment because the situation would have been no different under the amended petition than under the original petition. On the other hand, if the proposed amendment did confer something of value on the respondents, or put another way, did reduce or limit the taking by the appellant, then the appellant should have been allowed to amend its petition. St. Louis K. & N. W. Ry. Co. v. Clark, supra. This question is certainly one susceptible to expert opinion. Due to the progress of the work, the fall of the land, the depth of the well and other factors, the opinion of the experts may be that these lines could not be placed and maintained in accordance with the requirements of Exhibit A in any event. On the other hand, their opinion may be that the lines could have been so placed but the cost would be so prohibitive that the right to do so is valueless as water could be more economically obtained elsewhere or by drilling a new well on the 12-acre tract. Still another alternative would be expert testimony that these lines could be placed in accordance with the requirements of Exhibit A and in a manner, having regard to cost and utility, that would render the right to ' do so of value to the respondents and, if so, the amendment clearly reduces the appellant’s rights in the condemned strip. Or it may be that the experts will disagree upon the matter or that they will offer still different testimony. In any event, the confusion and uncertainty regarding the worth of the reservation to the respondents of the right to put these water lines subject to the requirements of the applicable provisions of Exhibit A, is a proper subject for the introduction of expert testimony. With that testimony, respondents’ contentions of confusion may evaporate. Without that testimony, we cannot hold, as respondents would in effect have us do, the fact that the reservation was made subject to the applicable provisions of Exhibit A makes the amendment totally worthless to the respondents and thus not a reduction in the appellant’s rights in this condemned strip.

In the second place, the question of whether the amendment actually reduces or limits the rights of the appellant is not properly an issue for the jury. This court has held that issue to be one of law for the court to decide. Union Electric Co. v. Levin, supra. Moreover, the trial court’s decision must be, under the facts that were before it and as they appear before us from this record, that this amendment does state a prima facie case of conferring a benefit on the respondents and of reducing or limiting the rights of the appellant. This case was tried upon the theory that absent this amendment, the respondents had no right to put water lines across the condemned strip regardless of in what fashion they might do so. Under the amendment, it is clear that the respondents could put two 4-inch water lines across the condemned strip provided that in doing so they complied with certain requirements. On its face then the amendment would have resulted in reducing the rights of the appellant. Whether or not this prima facie case can be substantiated will depend upon proof as to whether the right to put these water lines across the condemned strip subject to the requirements of Exhibit A actually confers a benefit to respondents or, because of considerations of cost and utility, the amendment confers something actually of no value. The presence or absence of such proof will determine whether the trial court will regard the amendment as having the effect of reducing the rights of the appellant and whether the trial court will allow the jury to consider the right to put these lines across the right-of-way as going to diminish the respondents’ damages. Of course, such proof could not be presented at this trial because the amendment was refused and there was no issue to which such proof would be pertinent. However, at this point in the proceedings, the question is not one of proof, but of pleading.

■ Under the provisions of § 509.490 RSMo 1959, V.A.M.S., the allowance of leave to amend after the statutory periods specified in that section have expired is a matter of discretion for the trial court; but, as stated by this court in Union Electric Co. v. Levin, supra, it is to be noted that § 509.490, supra, provides that the court is to grant leave freely when justice so requires. To deny appellant leave to amend where the offered amendment shows on its face that the appellant’s rights in the condemned land will be reduced by the amendment is an abuse of discretion and prejudicial error requiring reversal of this judgment and remand of this cause.

The Commissioner recommends that the judgment be reversed and the cause remanded due to the trial court’s action in denying appellant leave to amend its petition. The disposition of this case made herein renders consideration of appellant’s other allegations of error unnecessary.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The judgment is reversed and the cause remanded.

RUDDY, Acting P. J., and FRANK W. HAYES and RAY E. WATSON, Special Judges, concur.

       The report in 25 S.W. at 198 contains the word in brackets in the quotation although that word does not appear in the report in 121 Mo. at 194.


source: Caselaw Access Project

author: DOERNER, Commissioner.

license: Public Domain

text:
    Anna FARRELL, Plaintiff-Appellant, v. Lawrence DeCLUE and Tex-Flame Gas Corporation, Defendants-Respondents.
    Nos. 31234, 31259.
    St. Louis Court of Appeals. Missouri.
    Feb. 19, 1963.

      Roberts & Roberts, Raymond R. Roberts, Farmington, for plaintiff-appellant.
    Smith & Colson, David L. Colson, Far-mington, for defendants-respondents.
   DOERNER, Commissioner.

These two appeals were taken by the plaintiff, in turn, from an order which by its terms granted defendants a new trial, and from a subsequent order amending the prior order. At its inception plaintiff’s action was a commonplace suit for damages claimed to have resulted from a collision between two motor vehicles. By the time the matter reached this court the issues ordinarily present in litigation of that character had virtually disappeared in an entanglement which may be aptly described as a legal Gordian knot.

Plaintiff’s petition was filed on November 24, 1961. Summons issued and was duly served on both defendants on November 25, 1961, and the sheriff’s return was filed the next day. Neither of the defendants appeared or filed a responsive pleading within the time prescribed by Civil Rule 55.27, V.A.M.R. On January 10, 1962, the plaintiff’s case was presented to the court, sitting without a jury, and a judgment was rendered in favor of plaintiff and against both defendants for $9,000, and costs. Thereafter, on January 24, 1962, defendants filed a joint motion titled, “Joint Motion of Defendant Lawrence DeClue and Defendant Texflame Gas Corporation to set Aside the Verdict and Judgment Entered Thereon and to Grant Each Defendant a New Trial.” Therein they moved the court to set aside the default judgment and grant them a new trial for the reasons that: the judgment was contrary to law; the judgment was against the weight of the evidence; the verdict was excessive; that there had been no lack of diligence on their part in permitting the default judgment tq be rendered and that their failure to answer and defend the suit had not resulted from any negligence on their part, in that the summons and copies of the petition were delivered by them on or about November 28, 1961, to Byron Upchurch, the insurance agent of the Phoenix Insurance Company of Hartford, their insurance carrier; that on the same day Upchurch mailed the papers in Farmington to the St. Louis office of the insurance company, which failed to receive them; that defendants did not know why the letter bearing the copies of the petition and the summons was not received by the insurance company but felt that there was some mistake on the part of the United States Postal Service; that had there been no mistake each of the defendants would have answered within the prescribed time; and that each of the defendants had a valid defense to plaintiff’s claim, in that they denied every allegation contained in plaintiff’s petition and alleged that if plaintiff was injured it was due to the negligence of plaintiff’s husband, Walter J. Farrell, the driver of the automobile in which plaintiff was riding, in certain specified respects, which they set forth. Defendants’ motion was not verified, and no affidavits were filed to support it.

All that the. transcript shows is that “Thereafter, on March 10,1962, said Motion For New Trial was argued by counsel for the respective parties, and the following Order was entered of record, to-wit:

“ORDER

“ ‘Now at this day defendants’ motion for new trial taken up, considered and sustained and it is ordered by the Court that defendants be granted a new trial in this cause. Defendant granted ten days to file responsive pleadings.’ ”

Two days later, on March 12, plaintiff filed her notice of appeal from that order. On the succeeding day, March 13, plaintiff filed in the trial court what was titled “Statement of Error in Granting New Trial; Notice for Respondents to File Original Brief,” in which she pointed out that in its order the court had not specified of record the ground or grounds on which the new trial was granted, and called upon the defendants to file the original brief in this court, pursuant to Civil Rule 83.06(b).

The next link in this chain of events was the entry of record by the court on March 15, 1962, of an order which was as follows:

“ ‘It is hereby ordered non pro tunc that the order of March 10th, 1962 sustaining defendants’ motion for new trial be amended and corrected to read as follows:
“ ‘ORDER
“ ‘Now on this day defendants Motion for New Trial heretofore heard by the Court, the Court now being fully advised in the premises, said Motion for New Trial is by the Court sustained, for the following reasons:
“ T. The judgment of the Court is contrary to law.
“ ‘2. The judgment of the Court is against the weight of the evidence.
“ ‘3. The verdict is excessive.
“ ‘4. That the original judgment was granted by default to the plaintiff and the Court now finds neither defendant to have been negligent in failing to answer.’ ”

.Thereafter, on March 22, 1962, plaintiff, limiting her appearance to the purpose, filed a motion to strike and set aside the so-called nunc pro tunc order of March 15 on the grounds that “ ‘The Order o.f the Court entered on March IS, 1962, is not nunc pro tunc, correcting a clerical error or misprision to make the record reflect the Court’s Order of March 10, 1962, hut it changes and amends the Order of March 10, 1962, to a different Order than was entered by the Court.’ ” This motion was taken up and considered by the court, and overruled on April 6, 1962, whereupon plaintiff duly appealed from the order overruling its motion to set aside the nunc pro tunc order. In the interim, on March 20, 1962, defendants had filed their joint answer.

Prior to a consideration of the merits of the appeals we must first dispose of a preliminary matter. Subsequent to the filing of a joint transcript covering both appeals plaintiff moved in this court that the two appeals be consolidated. We overruled plaintiff’s motion but on our own initiative ordered that the appeals be jointly briefed and heard together. Plaintiff filed the original brief covering both appeals, and defendants answered with theirs. Under cover of her reply brief plaintiff filed a motion to affirm the original judgment of January 10, 1962, for the reason that defendants had failed to file the original brief in the first appeal, as required by Civil Rule 83.06(b). A number of reasons might be stated why the motion should be overruled, but one will suffice. It is apparent that our order directing that the two appeals be briefed and argued together created some doubt and confusion in the minds of both parties as to which should then file the original brief. Plaintiff appears to have resolved the doubt by filing the first brief, as it would have been required to do in the second appeal, absent any consolidation, and relying thereon defendants filed an answering brief in the usual manner of a respondent. Plaintiff did not question this procedure until the time for filing its reply brief. Under these circumstances it would obviously be a miscarriage of justice to grant plaintiff’s motion, and in the exercise of the discretion vested in us by Civil Rule 83.09, if for no other reason, plaintiff’s motion should be overruled.

As a further prelude, and by way of demarcating our problem, it is in order to point out that this is not a case in which the trial court refused to set aside a default judgment. Nor is it one in which the defendants’ motion partook of the nature of a writ of error coram nobis, or a proceeding for a review because of errors patent on the record. Different rules, not applicable here, apply to such situations. Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132; Kallash v. Kuelker, Mo.App., 347 S.W.2d 467; Owens v. Owens, Mo.App., 280 S.W.2d 867.

With these preliminary matters disposed of we turn to the numerous questions presented. We shall endeavor to cut through to the decisive issue which forms the core of this knotty problem, rather than undertake to untangle it strand by strand. That issue, in our opinion, is whether the court’s order of March 10 was an “order granting a new trial” within the meaning of Section 512.020 RSMo 1959, V.A.M.S., which specifies who may appeal; or whether it was merely an order setting aside the default judgment. As we shall seek to demonstrate, diametrically opposite results obtain, depending upon the conclusion reached. We observe, in passing, that while no question has been raised by either of the parties as to the nature and character of that order, it is our duty to make such inquiry sua sponte inasmuch as our jurisdiction to entertain these appeals is involved. Dotson v. E. W. Bacharach, Inc., Mo., 325 S.W.2d 737; Deeds v. Foster, Mo., 235 S.W.2d 262.

Judged solely by the language employed by the court, its order of March 10 would appear to be an “order granting a new trial” within the meaning of Section 512.020, and therefore one from which an appeal will lie. The entry reads that the court sustained defendants’ “ * * * motion for new trial * * * ” and ordered that “defendants be granted a new trial in this cause. * * * ” If that order was in fact one granting defendants a new trial then we would be constrained to hold that the court erred in making it. This conclusion would follow for these reasons: No grounds for the granting of a new trial were specified in the order of March 10. Nor were such grounds supplied by the so-called nunc pro tunc order of March 15, because it was not a valid nunc pro tunc entry. A nunc pro tunc order can only be employed to correct a clerical mistake or a misprision of the clerk, upon proper evidence. It can never be invoked, as was attempted here, to correct a judicial mistake or oversight, nor to render a judgment different from that actually rendered, even though the judgment actually rendered was not the judgment the court intended to return. Wiggins v. Perry, 343 Mo. 40, 119 S.W.2d 839, 126 A.L.R. 949; Campbell v. Spotts, 331 Mo. 974, 55 S.W.2d 986; State ex rel. Holtkamp v. Hartmann, 330 Mo. 386, 51 S.W.2d 22; Clancy v. Herman C. G. Luyties Realty Co., 321 Mo. 282, 10 S.W.2d 914; Aronberg v. Aronberg, Mo.App., 316 S.W.2d 675.

Further, since no discretionary grounds for the court’s action were speci•fied in the order of March 10 we may not presume that the new trial was granted on such grounds. Civil Rule 83.06(c); Byrd v. McGinnis, Mo., 299 S.W.2d 455. In fact, since no grounds of any kind were specified the presumption is that the trial court acted erroneously, and the burden of supporting its action is placed on the defendants. Civil Rule 83.06(b) ; Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316. Defendants do not challenge the applicability of these rules, but argue that since the case was tried without a jury we have the right, by virtue of Civil Rule 73.01(d), to review .the record to determine whether there was .sufficient evidence introduced by plaintiff to support the judgment. If so, the weakness in defendants’ position is that they are content to merely cite the rule, without making any attempt to point out in what manner the evidence was insufficient. In that situation, and in the interest of brevity, it will suffice to say that we have carefully considered the evidence introduced by plain•tiff and have reached the conclusion that it was amply sufficient to support the judgment. If, therefore, the order of March 10 was an “order granting a new trial” within the meaning of Section 512.-020, then for the reasons stated we should direct that that order be set aside and that the judgment rendered in favor of plaintiff be reinstated.

We make that statement in its hypothetical form because of the manner in which Section 512.020 has been construed. The pertinent parts with which we are here concerned provide:

“Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, * * * may take his appeal to a court having appellate jurisdiction from any order granting a new trial, * * * or from any special order after final judgment in the cause; * *

In construing these provisions the Supreme Court has ruled that the proceedings which culminate in the entry of a default judgment are not a “trial”; that the defendants’ motion for relief cannot, therefore, be a motion for a netv trial, but is one to set aside the default judgment; that the order granting relief is an order setting aside the default judgment and not an “ * * * order granting a new trial * * * ” nor a “ * * * special order after final judgment * * * ” within the contemplation of Section 512.020; and that no appeal lies from such an order.

These rules had their inception in the case of Crossland v. Admire, 118 Mo. 87, 24 S.W. 154. .The defendant in that case was duly summoned, but failed to appear, and a judgment was rendered against him by default. On the same day defendant filed a motion, supported by affidavits, to set aside the default judgment “ * * * alleging grounds therefor which need not be here stated * * * ” as the court expressed it. The court sustained the motion by the following order:

“* * * 'It is therefore ordered by the court that the judgment hereinbe-fore rendered be, and the same is hereby, set aside, and for naught held, and a new trial granted herein.’ * * * ”

From that order plaintiff appealed, contending that the court had erred in granting “a new trial,” since the court had refused to specify of record the ground, or grounds, on which the new trial was granted, as required by Section 2241, RSMo 1889. The court construed the word “trial” to mean a formal examination of contested issues before a competent tribunal in which both parties are present and participate, and said that “A mere inquiry of damages after a judgment by default is not a ‘trial,’ within the meaning of the statute.” It quoted with approval Black’s definition of a “new trial” as “a re-examination, in the same court, of an issue of fact, or some part or portion thereof, after a verdict by a jury, report of a referee, or a decision by a court.” As to the motion by which the defaulting defendant had sought relief it stated:

“ * * * A motion for a new trial must be predicated upon some error committed in the trial, by which the verdict or finding was improper. Sections 2239, 2240.
“The motion of defendant was not for a new trial, but to set aside the judgment, in order that he might have a trial. The grounds of the motion were not placed upon an error occurring in the trial, but upon a misunderstanding between defendant and his counsel, by reason of which the default occurred. The motion then was to set aside the judgment and not for a new trial, and the court was not required to give a reason for its action. Injecting into the order the statement that a new trial was granted, was not authorized, and may be treated as surplusage.”

Regarding the order granting relief the court observed:

“ * * * We do not think an order setting aside a judgment rendered on default is included within the terms or intent of the statute. There had been no ‘trial,’ within the meaning of that term, and a trial must precede- a new trial.”

The court concluded its opinion with the ruling:

“The amendment of section 2246 (Laws 1891, p. 70) allows an appeal from ‘any order granting a new trial.’ As plaintiff bases his right of appeal solely upon this provision, and- as no new trial was granted, it follows that the appeal should be dismissed, which is accordingly ordered. All concur,! except BARCLAY, J., who is absent.”

The results reached in Crossland v. Admire were re-examined and affirmed in the oft-cited case of Bussiere’s Adm’r v. Sayman, 257 Mo. 303, 165 S.W. 796. There the default was granted, the inquiry heard, and the judgment rendered during the December 1910 term. Fourteen days after the judgment was granted, which was still within the same term, defendant filed a motion to vacate. On March 20, 1911, during the February term, to which the motion had been continued, the court sustained it and set aside the final judgment. Plaintiff appealed to this court, which expressed the opinion that the order setting aside the final judgment was a “ * * * special order after final judgment * * * ” within the meaning of Section 512.020, and that an appeal should therefore lie. It acknowledged, however, that it was constitutionally bound to follow Crossland v. Admire, but pointed out that if it did so its decision would then be in conflict with an opinion of the Kansas City Court- of- Appeals, and therefore it certified the case to the Supreme Court.

That court disposed of the contention that an order setting aside a' default judgment was a special order after final judgment by saying (257 Mo. 313, 165 S.W. 799):

“ * * * From this language' it is urged and argued and held the right of appeals arises here. Miller v. Crawford, supra; Bussiere v. Sayman, supra. But when we carefully look to the words used is this clearly or necessarily so? The word ‘special,’ is in its meaning and definition as found in the dictionaries so varied, varying, and ‘general’ as that we frankly concede there is no argument to be derived from its use in the troubling clause. Is there here left any final judgment in the cause when the appeal is prayed ? Clearly not, because the motion being acted on favorably by the court has utterly wiped the final judgment off the record and the earth. It is not and cannot be an appeal after final judgment, because to my mind such a term could be applied only where a final judgment still existed, not to a case where it had utterly ceased to exist. * * * ”

The court pointed out that when a defendant’s motion to set aside the default judgment is overruled the judgment is final, and the defendant may then appeal, because he “ * ⅜ ⅜ jlas j-gached the last ditch * * But after an exhaustive review of Crossland v. Admire and subsequent decisions the court concluded (257 Mo. 316, 165 S.W. 800):

“Having thus carefully examined the ruled cases and the statutes relied on as creating the right of appeal, and the necessity, or lack thereof, for an appeal at such a stage, we are unable to see any sufficient reason why we should overrule the case of Crossland v. Admire, supra. That case was ruled by a most able and painstaking jurist but recently, as the age of the law is, and at a time when the statute on this point was just as it now stands; it was so ruled without dissent, one judge absent, by the division hearing it. The conditions have not changed in favor of a different rule. It may well be that, since a different rule would clog the courts and hinder and delay the business thereof, that conditions have changed in favor of the rule announced in the Crossland Case. The case of Miller v. Crawford, 140 Mo.App. 711, 126 S.W. 984, should be followed no longer.”

The rules laid down in the Cross-land and Bussiere cases, that an order setting aside a default judgment is not an “order granting a new trial,” and that an appeal will not lie from such an order, have been uniformly followed in subsequently reported cases. In the light of what was said in those cases it follows that in the instant case, the proceedings on January 10, 1962 which culminated in the judgment entered on that day was not a “trial”; that despite the language employed, the court’s order of March 10, 1962 was not an order granting a new trial, inasmuch as there had never been a trial; and that it was, instead, an order setting aside the default judgment. And since no appeal may be taken from an order setting aside a default judgment, plaintiff’s áp.peal from the order of March 10 was premature and must be dismissed.

In reaching those conclusions we have not overlooked the argument made in plaintiff’s brief that since the order of March 10 was made more than 30 days after the default judgment was entered it is an appealable order because “ * * * Rule 82.05(a) provides that the ruling of an after trial motion more than 30 days from judgment makes it final and appealable.” Plaintiff misconstrues the rule. Rule 82.-05(a) specifies when a judgment becomes final, but only Section 512.020 governs who may appeal.

Nor have we failed to note plaintiff’s further contention that the court was not authorized to set aside the default judgment because no proof was adduced to support defendants’ motion to vacate. It will be recalled that the motion was not verified, no affidavits were filed to support it, and no testimony was offered at the hearing of the motion. We agree with plaintiff that the motion did not prove itself, and that in the absence of any proof the court abused its discretion in setting aside the default judgment. Gorzel v. Orlamander, Mo., 352 S.W.2d 675; O’Connell v. Dockery, Mo. App., 102 S.W.2d 748. Nevertheless, it does not follow that we may entertain plaintiff’s premature appeal. Her remedy was prescribed by the Supreme Court in Bussiere’s Adm’r v. Sayman, 257 Mo. 303, l.c. 315, 165 S.W., l.c. 800 as follows:

“ * * * Two remedies it would seem were open to appellant here: (a) He might have stood mute in a subsequent call of the case, and suffering a dismissal thereof, have appealed. (Harkness v. Jarvis, 182 Mo. 231, 81 S.W. 446); or (b), saving the point by a proper exception and term bill if need arose, appealed if he lost the whole case, under ordinary rules regulating appeals, and under the saving grace of the language of the section which we emphasize above by italics. Mayhap, then, the heat and burden of appeal would have shifted to the other side of this case, though this we do not decide.”

And see the concurring opinion of Graves, J., in Stanton v. Hanna, Mo., 199 S.W. 145, 146. If we may suggest parenthetically a query here (as the author of the opinion did in the Bussiere case), will the plaintiff be “aggrieved” within the meaning of Section 512.020, and therefore entitled to appeal, if on a trial she obtains a verdict and judgment for less than $9,000, the amount of the default judgment? We leave that bridge to be crossed when, if ever, we reach it.

For the reasons stated it is the recommendation of the Commissioner that plaintiff’s motion to affirm the judgment entered on January 10, 1962, should be denied; that plaintiff’s appeal from the so-called nunc pro tunc order of March 15,1962, being case No. 31259, should be sustained and said order be held for naught; and that plaintiff’s appeal from the order of March 10, 1962, setting aside the default judgment, being case No. 31234, be dismissed as premature.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of the court.

Accordingly, plaintiff’s motion to affirm judgment of January 10, 1962, denied; plaintiff’s appeal from so-called nunc pro tunc order of March 15, 1962, case No. 31259, sustained and order held for naught; plaintiff’s appeal from order of March 10, 1962, setting aside default judgment, case No. 31234, dismissed as premature.

WOLFE, Acting P. J., and JACK P. PRITCHARD and J. MORGAN DONEL-SON, Special Judges, concur.

      . Breed v. Hobart, 187 Mo. 140, 86 S.W. 108; Owens v. Owens, Mo.App., 280 S.W.2d 867; Gosnell v. Gosnell, Mo.App., 329 S.W.2d 230; Kallash v. Kuelker, Mo. App., 347 S.W.2d 467.

      . Holder v. Chidister, 177 Mo.App. 415, 162 S.W. 762, aff. Sup., 193 S.W. 568; State ex rel. Johnson v. Arnold, 317 Mo. 858, 297 S.W. 59; Stanton v. Hanna, 185 Mo.App. 91, 170 S.W. 452, aff. Sup., 199 S.W. 145; Badger Lumber Co. v. Boswell, 180 Mo.App. 180, 167 S.W. 1141; Carter v. Levy, Mo.App., 217 S.W. 549; Barkwell v. Carlisle, Mo.App., 231 S.W. 1063; Case v. Smith, 215 Mo.App. 621, 257 S W. 148; Owens v. Owens, supra; Gosnell v. Gosnell, supra; Kallash v. Kuelker, supra.


author: RAY E. WATSON, Special Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, (Plaintiff) Respondent-Appellant, v. Frank J. KLIPSCH, Jr., et al., (Defendants), Glenn P. Boehm, Walter M. Clark and Leon E. Yatkeman, Commissioners, Appellants-Respondents.
    Nos. 31119, 31120
    St. Louis Court of Appeals. Missouri.
    Feb. 19, 1963.
    Motion for Rehearing or for Transfer to Supreme Court Denied March 18, 1963.
    Robert L. Hyder, Bruce A. Ring, Jefferson City, for respondent-appellant.
    Walter M. Clark, Bruce E. Woodruff, Armstrong, Teasdale, Roos, Kramer & Vaughan, St. Louis, for appellants-respondents.
   RAY E. WATSON, Special Judge.

This appeal arises out of an action brought by the State Highway Commission in the Circuit Court of St. Louis County to condemn certain lands owned by the various defendants named therein for right-of-way for highway purposes.

Judgment of condemnation was entered on April 13, 1961, and thereafter on April 21, 1961, the court, pursuant to the provisions of Section 523.040 RSMo 1959, V.A.M.S., appointed Glenn P. Boehm, Walter M. Clark and Leon E. Yatkeman as Commissioners to assess damages which the owner, or owners, of each tract might sustain by reason of such appropriation.

On April 24, 1961, the three Commissioners each subscribed to the usual oath which was filed with the Clerk of the Circuit Court on the same day.

On August 23, 1961, the Report of Commissioners was filed and on August 25, 1961, the three Commissioners filed a Joint Petition for Compensation of Commissioners. ’ The petition summarized the services rendered by the Commissioners with reference to 32 tracts of land, 26 tracts of which were appraised, one tract dismissed by the State Highway Commission, and five tracts were settled.

Appraisals were actually reported on thirty-one (31) tracts of land with two tracts being appraised together, so that there were thirty (30) appraisals. The appraisals amounted to a total of $632,824.85 with the lowest amounting to $75.00 and the largest amounting to $85,409.00. Only five (5) tracts were appraised at less than one thousand dollars ($1,000.00), while seventeen (17) tracts were in excess of ten thousand dollars ($10,000.00), and eight (8) tracts were over one thousand dollars ($1,-000.00) and less than ten thousand dollars ($10,000.00).

The Commissioners stated in their petition that services were rendered on approximately seventy (70) different working days, and that approximately two hundred fifty (250) hours were required by each Commissioner to perform said services.

The petition stated that the Commissioners believed a reasonable total fee for their services would be Twenty-seven Thousand Dollars ($27,000.00).

A hearing was held on the Petition for Compensation of Commissioners on August 29, 1961, at which hearing the Commissioners produced testimony in support of their claim for compensation in the amount of $9,000.00 for each Commissioner, and the State Highway Commission produced testimony in opposition to the amount of the claim. This testimony will be analyzed and discussed hereinafter. At the conclusion of the hearing the trial court took the matter under advisement and on August 31, 1961, entered an order allowing compensation for each of the three Commissioners in the amount of $6,500.00.

Thereafter in due time the Commissioners and the State Highway Commission filed separate motions to set aside the order allowing compensation in the amount of $6,-500.00 for each Commissioner, or in the alternative for a new trial. Both motions were overruled by the trial court and in due time the Commissioners filed notice of appeal to this court, and the State Highway Commission filed notice of appeal to this court. The Commissioners are, therefore, appellants and respondents and the State Highway Commission is likewise appellant and respondent. We shall continue to refer to them herein as Commissioners and as State Highway Commission.

Before proceeding to a discussion of the evidence we feel that it is proper to call attention to several matters developed in the evidence or in discussions between attorneys and the court.

The land condemned was for right-of-way for Interstate Highway 55 (Ozark Expressway) with limited access, except as specified in the Petition for Condemnation. The parcels or tracts of land in question were located in an area extending from Lindberg Road (in south St. Louis County) to the St. Louis City limits.

Commissioner Walter M. Clark is an attorney at law residing in Clayton, St. Louis County, but with offices in the City of St. Louis. Commissioners Glenn P. Boehm, and Leon E. Yatkeman are both licensed real estate brokers residing in St. Louis County. It has apparently been the practice in the St. Louis area to appoint an attorney at law as one of the Commissioners in condemnation cases. It has also been the practice in the St. Louis area for the Commissioners to hold hearings where property owners and their attorneys, if they have employed attorneys, may appear and be heard with reference to the value of the property to be condemned. The St. Louis area is the only place in the State where this practice prevails, except possibly in one other circuit where the judge and the Commissioners conduct hearings.

It is noted at this point that the trial court did not give any instructions to the Commissioners with reference to their duties or instruct them with reference to the law pertaining to appraisals of property involved in condemnation proceedings.

Walter M. Clark testified that he is an attorney at law and after his appointment and taking the oath of office he conferred with Mr. Boehm and Mr. Yatkeman, the other two Commissioners, and reviewed the court file at some length to determine the location of the property, the identity of the owners and the attorneys for the owners. Additional conferences were had with Mr. Roscoe Summers, attorney for the State Highway Commission, and with Mr. Harris, a negotiator for the State Highway Commission, and in company with Mr. Harris the Commissioners went out on three different days and viewed the property involved. The actual amount of land taken by the State Highway Commission was approximately 65 acres.

After viewing the property Mr. Clark determined that he should do some legal research with reference to some of the legal questions involved in this particular proceeding; he felt that a part of his responsibility should be to help the other two Commissioners from the legal standpoint and so he did some rather extensive research with reference to the general law of condemnation and the duties of the Commissioner, and research with reference to some of the particular problems which he knew would arise. He prepared a rather detailed memorandum for the other two Commissioners for use in the hearings.

Prior to the hearings additional talks were had between the Commissioners, and Mr. Clark prepared a form of notice of hearings which was sent by certified mail to all owners, their attorneys of record, or other representatives. Also prior to the hearings the Commissioners had quite a few conferences with lawyers for the owners.

Hearings were held on twenty-nine or thirty tracts of land. These hearings were held over a period of three or four weeks, but not on every day. The hearings were held on sixteen (16) different days and the actual time spent in the hearing amounted to ninety-six and three fourths hours (96¾). The total time spent by the Commissioners amounted to two hundred fifty (250) hours, and was rendered on approximately seventy (70) different days. The expense of notices of hearings, travel, overhead and other expense was included in the request for allowance of nine thousand dollars ($9,000.-00) for each Commissioner.

The attorney for the State Highway Commission furnished the forms for the Report of Commissioners and the only work in that respect was for the Commissioners to fill in the amount agreed upon as damages for each separate tract of land.

Mr. Clark testified that a reasonable fee for the services rendered was $9,000.00 for each Commissioner, or a total for all three Commissioners of $27,000.00. This amount was calculated on a charge of $35.00 per hour which, in his opinion, was a reasonable rate for his services, that being the rate charged by him as a lawyer, and being a reasonable charge for his time. He stated that he could not testify as to the reasonable value per hour of Mr. Boehm’s time or Mr. Yatkeman’s time. He did think they were worth every bit of that, but he was not a real estate appraiser. Mr. Clark stated that overhead in a law office is no small item, there were also expenses incurred in mailing’ notices and other expenses. Those factors were included in the fee which he was asking in this matter.

Mr. Clark further testified that a transcript was made of the proceedings of the hearings by a reporter. This cost was paid for by the State Highway Commission and the Commissioners were furnished a copy of the transcript.

Mr. Clark also testified that some of the land was farm land being used for truck gardening purposes in the midst of otherwise very well-developed residential areas and there were questions as to the highest and best use; there were also questions as to various improvements on the property, some involving sprinkler systems installed on farm land and the Commissioners were faced with the problem of evaluating those various factors; also another factor was the proposed zoning under the County Land Use Plan.

Glenn P. Boehm, one of the Commissioners, testified that he is a licensed real estate broker, residing at Clayton; that he was licensed as a real estate broker in 1954. He stated that the testimony of Mr. Clark as to services performed jointly by the Commissioners was an accurate summation. He further testified that he and Mr. Yatkeman made an extensive study of the applicable zoning of the property involved and discovered that parcels were differently zoned, and some had multiple zoning; that to better understand the problem the highway right-of-way was superimposed on the plans of the St. Louis County Planning Commission. He stated that he and Mr. Yatkeman made trips to the property in addition to the original viewing by all three Commissioners. The records in the courthouse and in the title companies were reviewed in connection with his services. He devoted all or some of seventy-one (71) days to the project and expended between two hundred fifty (250) and two hundred sixty (260) hours. He stated the fullest day would probably be eight (8) hours, and the least day would probably be thirty-five (35) or forty (40) minutes, and it would be variable all the way through. He testified that the reasonable value of his services in this particular matter would be $9,000.00 and a reasonable fee for all three of $27,000.00. He further testified that he and Mr. Yatkeman worked together at all times and their services were exactly identical; that both he and Mr. Yatkeman are real estate men.

Samuel H. Lieberman, a lawyer, of St. Louis, with some forty (40) years experience, well known and highly respected by both the bench and the bar, testified that he had been present and heard all of Mr. Clark’s testimony with respect to the services performed and had discussed previously with Mr. Clark the work done; that in his opinion an hourly rate of $30.00 to $35.00 was reasonable and that a reasonable fee would be $7,500.00 to $9,000.00. He stated upon cross-examination that his opinion as to a reasonable compensation in this case was based on fees charged by attorneys in the St. Louis area. Upon inquiry by the court he stated that he chose the $30.00 an hour charge with recognition that public service was involved.

Charles A. Kober, Jr., of Kirkwood, testified that his business profession is real estate ; that he is Vice-President of Clarence M. Turley, Inc., and has been with that firm for over twenty-five years. In addition to a college degree he also holds a law degree. He is a member of several realtor and appraiser organizations and has been a member of the American Institute of Appraisers for seventeen years and is President of the national organization. Members of that organization are designated as an MAI. Later upon inquiry by the court it was developed that an MAI is a member of the Missouri Appraisers Institute which is affiliated with the national organization of American Institute of Appraisers. The witness testified that he had heard the testimony of Mr. Clark and Mr. Boehm and that he would charge for the same services at a rate of $250.00 per day; that the amount he would charge would be a reasonable charge for the same or similar services in the St. Louis area. He stated that in his opinion a charge of $12,000.00 for each Commissioner would be reasonable. Witness stated that in recent years his work for the Turley organization had been appraisal work; that he had appraised almost every kind of property. When asked on cross-examination concerning appraisals in connection with condemnation proceedings, if the reasonable fee charged in the St. Louis area is $250.00 a day, he stated that his testimony would show that “I said I would charge $250.00 a day.”

' Leon E: Yatkeman, the other Commissioner, was present and it was agreed that his testimony would be substantially the same as that of Mr. Boehm.

.The State Highway Commission produced two witnesses, Roscoe Summers, attorney and right-of-way agent for the Highway Department, with offices at Richmond Heights, and Charles Harris, a right-of-way agent for the Highway Department working out of Urban Area Office at Richmond Heights.

There was very little dispute as to the number of days or hours testified to by the Commissioners. Representatives of the State Highway Commission were present when the Commissioners viewed the tracts of land and at the hearings and there was no substantial dispute as to the amount of time put in by the Commissioners. The dispute in this case is as to what is a reasonable charge for the services rendered.

Mr. Summers testified that he was familiar with this case and attended the hearings held by the Commissioners. He also testified that in obtaining appraisals of damages resulting from' the taking of right-of-way by the Highway Department, the Department required the appraiser to submit three copies' of a five to eight-page typed appraisal with comparable sales listed and containing pictures; that such appraisers are real .estate brokers or professional real es.tate appraisers, or both and the requirements are that they have fifteen or twenty years’ experience and are MAI appraisers, members of the Missouri Institute of Appraisers; that the appraisers must inspect the property and measure it, and are required to show and inspect comparable sales in the area; that their contract with the Highway Department provided no minimum number of appraisals to be made; that after viewing the property additional time is required in making the report and determining the amount of the appraisal; that the Highway Department in the year prior to the hearing in this matter had fifteen (15) such appraisers under contract. Mr. Summers testified that such contract appraisers were paid $50.00 to $75.00 each for normal appraisals, some run as high as $100.00, $150.00, $200.00, and special appraisals in one or two instances $400.00 or $500.00, but the general run for a number of appraisals, probably fifteen or twenty, runs between $50.00 and $75.00.

On inquiry by the court the witness stated that when such appraisers were used as witnesses in a court trial they were paid $100.00 per day and as witnesses before Commissioner Hearings $50.00 per day.

The appointment of commissioners in condemnation proceedings such as in this case is provided for by Section 523.040 Revised Statutes of Missouri, 1959, V.A.M.S., which section set out the qualifications of the Commissioners, their duties, and the procedure to be followed. Under this section it is provided that the Commissioners must be disinterested, freeholders, and residents of the county in which the real estate or a part thereof is situated.

Section 523.070 pertaining to costs, among other things, provides: “The court shall allow the commissioners a reasonable compensation for their services, which shall be taxed as costs in the proceedings.”

We turn now to a consideration of the evidence presented in this case. At the outset we are faced with the testimony of Mr. Clark, one of the three Commissioners, to the effect that he determined that he should do some legal research with reference to some of the legal questions involved in this particular proceeding. After detailing some of the problems involved he stated that he wanted to point out that there were numerous rather perplexing legal questions and for that reason he reviewed the law to some extent and prepared a rather detailed memorandum for Messrs. Boehm and Yatkeman, the two other Commissioners, for their use in the hearings, particularly with reference to some of the rules of evidence.

We think this was not a proper part of the duties of Mr. Clark as a Commissioner. It is the province of the court which appoints the Commissioners to inform them of their duties and responsibilities and to declare the law to them. There are standard forms available for such purpose, and if any special questions of law are present on which the Commissioners require instructions as to the law, the parties involved should call this to the attention of the court through their attorneys and instructions should be prepared and given to the Commissioners to guide them. The fact that an attorney at law happens to be one of the Commissioners would not abrogate the duty and responsibility of the court in this respect.

In the case of City of St. Louis v. Rossi, 333 Mo. 1092, 64 S.W.2d 600, in dealing with a situation which called upon the Commissioners to determine legal matters, Judge Hyde, then Commissioner, stated, l. c. 605, 606:

“It would be more practical to limit the activities of these commissions to the field with which they are familiar, the consideration of values of property taken, damages to remaining property resulting from the taking, and benefits reflected in increased values resulting from the improvement; and to leave the questions of law which necessarily arise in apportioning the damages when there are several interests in any particular tract to the tribunal which has judicial authority. In short, leave values to the board of commissioners, and law to the court.”

As we have heretofore stated, there is very little, if any, dispute as to the amount of time put in by the three commissioners in performing their services. The testimony is that each commissioner put in about the same amount of time and that in general was approximately 250 hours, covering a period of 70 or 71 days. This amounted to approximately 31 and a fraction days. The dispute in this case is not over the amount of time put in by the commissioners in rendering their service, but what is the reasonable value of that time. We think that the reasonable value of that time should be based on fees being charged by others for similar services being rendered in the St. Louis area.

The witness, Charles A. Kober, Jr., testified that he would have charged $250.00 per day and he thought that would be a reasonable fee for his services, but he did not state that would be a reasonable fee based on charges for like or similar services being performed in the St. Louis area.

Mr. Boehm merely testified that the reasonable value for his services in this particular matter would be $9,000.00.

It is quite evident from the testimony of Mr. Clark and that of Mr. Lieberman, and from the argument of Commissioners in their brief that they are attempting to justify their claim of $9,000 by evaluating it with charges made for legal services in the St. Louis area.

The testimony of Mr. Lieberman was that a reasonable fee would be somewhere between $7,500.00 and approximately $9,-000.00. His qualification was with reference to fees charged by lawyers; that Mr. Clark’s services were reasonably worth from $30.00 to $35.00 an hour; the court asked him if that was the standard rate that lawyers are charging now and he answered that the range would depend upon the number of years the lawyer has been in practice, and the particular problem involved. Upon cross-examination he stated that he was basing his opinion on the basis of fees charged by attorneys in the St. Louis area. In response to a further question by the court he stated that he had mentioned the minimum thirty-dollar-an-hour charge, with recognition of the fact that public service is involved.

Mr. Clark’s testimony on this point was as follows: “Well, as a lawyer, I would say I feel that $35.00 an hour is a reasonable charge for my time.”

In the concluding argument in their brief in this court the Commissioners call our attention to Missouri Supreme Court Rule 4.12 setting out factors to be considered by lawyers in arriving at an amount to be charged for their services and suggest that these time-tested standards might well be employed in the determination of reasonableness of compensation of commissioners in condemnation cases.

We cannot and do not agree with this argument. The statute above quoted provides for reasonable compensation for the services rendered by the Commissioners in determining the amount of damages to be awarded to the owners of the various tracts of land involved in the condemnation proceedings. A lawyer may be qualified to serve as a commissioner, and no question is raised in this case as to Mr. Clark’s ability in that respect, but he, nor either of the other commissioners were performing legal services. When a lawyer accepts appointment to perform services not of a legal nature then he must accept the fee or pay normally or usually paid to others for such services.

Commissioners claim that the trial court erred in allowing testimony concerning the fees paid under contract to appraisers for the Highway Department and urge that this testimony should not be considered by this court on appeal.

Commissioners also argue that there is a distinction between Commissioners and appraisers and for that reason the evidence offered with reference to amounts paid to such appraisers should not have been received and should not now be considered.

We cannot agree with this position and feel that the evidence was properly received. The appraisers referred to in the evidence presented by the State Highway Commission were persons who were employed by the Commission to appraise and fix for the Commission the reasonable market value of property to be condemned for highway purposes. These appraisals were to be used by the State Highway Commission in determining the amounts to be offered to the landowners as damages for the proposed taking in the preliminary negotiations required by statute. The function of such appraisers was very similar to the duties of the Commissioners appointed by the court except that the appraisers did not hold hearings and listen to testimony from interested persons or their attorneys. On the other hand, they were required to support their appraisals by written report, showing measurements and descriptions of tracts and structures, if any, and sales of comparable properties.

It was not contended by the State Highway Commission that the fees to be paid to the Commissioners should be limited to those paid appraisers but that such evidence was admissible to shed some light on fees paid for similar types of work.

The net result in the case of the Commissioners appointed by the trial court and the appraisers employed by the State Highway Commission is to determine the fair and just compensation to which the property owner is entitled for the taking of his property for highway purposes. Any distinction between the two would be in the manner or method in performing such services and in arriving at such fair and just compensation, and this would go to the weight to be accorded to such testimony and not to its admissibility.

In this case the trial court allowed a fee of $6,500.00 to each commissioner for the services rendered, a total allowance of $19,500.00 for 250 hours work or approximately thirty-one days. We are not advised and have no way of telling- what factors were taken into consideration by the trial court in arriving at that amount. We think there is nothing in the record to indicate that any other basis than time and the ability of the Commissioners to arrive at fair and reasonable values is involved. Any difficulties or complexities would be resolved in the length of time required. The allowance made by the trial court would figure out at $26.00 per hour or $208.00 per day. We feel that such an allowance is too much for the type of services performed.

The Commissioners have cited the case of Haley v. Horwitz, Mo.App., 290 S.W.2d 414, which sets out standards and elements involved in allowance of attorney fees. In discussing the factors involved, Judge Anderson, Presiding Judge, at l. c. 418, stated the following which we adopt as applicable to the present question before us:

"The problem should also be approached with a view to common sense realism; that is to say, it should pose an amount that public standards will approve for the work done, the time consumed, and the skill required.”

The statute above quoted provides for a reasonable fee to be paid to the Commissioners. We do not agree with the witness, Mr. Lieherman, that the fee should be less because public work is involved, but on the other hand, we are here dealing with public funds to be used principally for the construction of public highways and the expenditure of those funds should he strictly supervised and scrutinized to the extent that our courts may not be criticized for being overly generous in such matters, or where persons are seeking such appointments by reason of the generosity of the courts in making such allowances.

In their briefs before this court both the Commissioners and the State Highway Commission have stated that this court should review the entire record presented here and reach its own conclusions as to the proper compensation to be awarded.

Having determined that the fee allowed by the trial court is excessive and is such as to constitute an abuse of judicial discretion it becomes our duty to determine the reasonable value of the services rendered and to give judgment for such an amount as the trial court should have given.

In determining this matter we find no help in the Missouri decisions.

Commissioners have cited the case of State ex rel. State Highway Commission of Missouri v. Graeler et al, Mo.App., 303 S.W.2d 944. That was a case before this court which came from the same trial court from which the present case comes. In that case the trial court made an award of $4,-500.00 to each Commissioner for 180 hours work, or $25.00 per hour. The appeal in that case was dismissed on a procedural question and the court did not pass on the merits of the allowance so that it affords us no help.

The other two cases cited by Commissioners have to do with allowance of attorneys’ fees which do not assist us in determining a proper amount to be allowed in this case.

In the absence of any guiding authorities in the State of Missouri counsel for the State Highway Commission has cited cases from other jurisdictions on this question.

In the case of Gulledge v. Texas Gas Transmission Corporation (Ky.App.1952), 256 S.W.2d 349, the court held that the payment of $325.00 to $350.00 to a commissioner for a day’s work appraising lands being condemned was too liberal according to any standard. It is interesting to note that in that case the court stated that payment of such a fee by the condemnor could have wrongfully influenced the commissioner to fix tod low an award, with the result that the landowner would be put to the expense of employing an attorney and to appeal to the Circuit Court in an, effort to receive adequate compensation and for that reason the entire proceedings were set aside, except as to the right of condemnation.

In the case of United States v. Certain Tracts of Land in City of Richmond, 169 F.Supp. 318, decided by the United States District Court for the Northern District of California, the commissioners appraised 200 parcels of land under 68 separate ownerships and put in a total of 41 days and a substantial amount of additional time reviewing the transcript and preparing schedules for the report. The commissioners were allowed $6,000.00 each for their services. This would be approximately $146.00 per day, not counting the substantial amount of additional time referred to.

In the case of United States v. 44.00 Acres of Land, etc., 2 Cir., 234 F.2d 410, which was a condemnation proceeding by the Federal Government originating in the United States District Court for the Western District of New York, the commissioners spent some three days viewing the property, 38 days hearing testimony, 25 days conferring and preparing their report, two weeks preparing detailed findings of fact and conclusions of law and considerable time examining the record and exhibits. If we consider two weeks as being ten days and ignore the “considerable time” referred to, the Commissioners spent approximately 76 days in performing their services. The trial court allowed a total of $11,000.00 for services, but the appellate court increased this allowance to $10,000.00 for each commissioner. That would amount to approximately $131.00 per day-for each commissioner. While concurring in the opinion, Chief Justice Clark stated in a concurring opinion that having in mind the amounts paid' in comparable cases he thought a doubling of the original'award would have-been quite generous.

From a consideration of all of the evidence in this case and from a review of the foregoing cases we are of the opinion that a reasonable award to each of the Commissioners in this case would be $150.00 per day for 31|4 days or a total of $4,687.50 for each Commissioner.

The judgment of the trial court is reversed and the cause is remanded with directions to enter an allowance of $4,687.50 for each of the three Commissioners.

RUDDY, P. J., and FRANK W. HAYES, Special Judge, concur.


author: J. P. MORGAN, Special Commissioner.

text:
    ARTHUR L. KNIFFEN REAL ESTATE COMPANY, a Corporation, (Plaintiff) Appellant, v. Joseph ACCARDI and Theresa Accardi, (Defendants) Respondents.
    No. 30949.
    St. Louis Court of Appeals. Missouri.
    Feb. 19, 1963.

      Blumenfcld, Abrams & Daniel, James L. Zemelman, St. Louis, for appellant.
    Ferrara & Mulligan, John F. Mulligan, St. Louis, for respondents.
   J. P. MORGAN, Special Commissioner.

Plaintiff has appealed from the judgment entered on a jury verdict for defendants in plaintiff’s action to recover a real estate commission for its alleged efforts in procuring a purchaser for a residence property owned by defendants.

The petition declared plaintiff to be a corporate realtor engaged in the general real estate business, and, “that on or about October 19, 1957, defendants entered into a contract in .writing under which defend-'. ants agreed to sell to Emil E. Clark and Jane L. Clark, his wife, certain real property, together with improvements thereon, known as Lot 75 Grandview Hills, St. Louis County, Missouri, being certain residential property, for the sum of $26,800.00” and incorporated this sales agreement as Exhibit “A.”

It was also alleged, “that said agreement further provided that the sellers, defendants herein, would pay a commission on said sale in the amount of five (5%) per cent of the sales price”- or $1340.00. After stating, “that plaintiff acted in said transaction as the real estate agent, and performed all services required of it which resulted in the closing of said sale” claimed plaintiff was entitled to the commission. The exhibited contract had one line reference payment of a commission and read, “Commission shall be $ 5% to be paid by seller and to be a lien on the property.”

The dispute as to whether defendants owed plaintiff a commission continued until purchasers demanded the sale be closed. With all parties represented by counsel, the property was transferred to Clarks and the' five per cent commission claimed by plaintiff was placed in escrow subject to the outcome of this litigation.

■ Plaintiff-Appellant in its brief prefaces its argument by stating, “The sole ground upon which this appeal is based is the error committed by the court in the giving of Instruction No. 2.” That instruction is as follows: “The Court instructs thé jury that if you find from the credible evidence that Joseph and Theresa Accardi did not enter into a contract with the Arthur L. Kniffen Real Estate Company, a corporation, wherein they agreed to pay the said corporation a 5% commission, as alleged in the corporation’s petition, then your verdict must be for the defendants on plaintiff’s claim.”

Plaintiff contends that the instruction was erroneous because it went beyond the plead-, ings and evidence to the extent it was confusing and misleading to .the jury. . .The contention apparently being based on this premise: (1) that plaintiff never sought to plead or prove a contract between plaintiff-realtor and defendants-sellers; but, (2) that plaintiff by its pleadings and evidence did seek to show a contract between sellers and purchasers with a provision therein that sellers would pay plaintiff-realtor a 5% commission on the sales price.

Only two witnesses testified for each of the parties, and much of the testimony is consistent or at least not contradicted. It appears that defendants for several years had been engaged in constructing new homes and placing them on the market. They testified that they did their own advertising and had never used the services of a broker. That the Clarks had contacted them personally and had looked at this particular house. On this visit defendants had offered to sell for $26,800 and had further promised to “take the financing.” The Clarks promised to return in a day or two. The next day Mrs. Phares, who it is agreed was an authorized saleslady for plaintiff, came by to look at the house. While she was there, the Clarks arrived. At this time, it was agreed that Mrs. Phares through her employer would arrange a loan for Clarks with which to purchase defendants’ house.

It was established, that prior to this time plaintiff’s saleslady had been working with the Clarks in the sale of their own home, and was assisting them in their efforts to purchase a new residence.

Several days later the defendants, after a call from plaintiff, went to the realty office. There they were shown the sales contract in question. It is sufficient to say that the contract was the usual printed form with blank spaces for the insertion of sales price, description, closing date, earnest money, other possible details and the commission provision previously set out. From the testimony as well as the exhibit, it is shown that the contract offered defendants for their signatures provided a sales price of $26,000 and all being contingent on the sale of another property, which it is assumed was that originally owned by Clarks. Upon objection by defendants, both of these provisions were marked out and in writing the sale price was changed to $26,800 and the contingency was removed and a closing date set within sixty days. Defendants at this time signed the contract and it was to be taken to Clarks for them to agree to and initial the changes. The sole dispute as to the contract results from this meeting. Defendants both stating the printed line for commission was blank, and plaintiff and his agent both contending the five per cent (5%) was typed in the space provided. Below the lines provided for signature is a printed line with typed figures: “Received $300.00 as earnest money on account of above sale.” Immediately below this line was a rubber stamp print “ARTHUR L. KNIFFEN REAL ESTATE CO.” Mrs. Phares did have the Clarks initial the changes and about a week later she delivered a copy to defendants. The delay being due to the illness of her son. Mr. Ac-cardi testified that after she was gone he discovered for the first time that “5%” for commission had been filled in. He then called her and was told, “My company would not allow me to sell a house without paying commission.” He then went to see Mr. Kniffen and was advised, “You signed the contract in good faith. If the deal goes through, you have to pay commission.” At this time, all parties sought advice of attorneys and upon the insistence of Clarks the conveyance was made and the escrow arranged.

Plaintiff’s effort to recover the commission claimed is based on a rather unusual if not novel approach. The petition does not allege the employment of plaintiff by defendants to act as broker or in any other capacity, and plaintiff is consistent to the extent of stating in its brief: “Plaintiff in its evidence never sought to establish or refute a contract between plaintiff and defendants, to the contrary, all of the evidence admitted on behalf of both plaintiff and defendants went to establish the existence of a sales contract between the Accardis and Clarks.” Since the sales contract was admitted by all parties and was in fact completed as between buyer and seller prior to this action, plaintiff must mean that its efforts were directed toward proving the alleged promise to pay a five per cent commission. This was actually the only material fact in dispute.

For a broker to recover compensation, the authority to act as agent for the seller must be established. This principal-agent relationship can only be created by a contract of employment between them which can be shown in two ways: First, by proving a definite agreement, which may be written or verbal, calling for services and compensation; Second, by showing such acts or course of conduct by the parties that a contractual arrangement is evident or reasonably may be inferred, E. A. Mabes and Company v. Fishman, Mo.App., 284 S.W.2d 21, l. c. 26. Such proof might include ratification by the principal of the previous voluntary acts of the agent, which would be nothing more than a belated confirmation of a contractual arrangement coming within either of the classifications.

In any event, employment must be shown. The rule is stated in 8 Am.Jur., Brokers, Sec. 139: “A broker’s compensation is ordinarily a commission on the price or value of the thing sold or exchanged, and his right thereto is dependent upon the terms of his employment contract * * *. To entitle him to any remuneration, however, there must be an actual employment * *

This court stated in A. J. Meyer & Co. v. Schulte et al., Mo.App., 189 S.W.2d 183, at 190:

“There can be no doubt of the justness of the principle applied in the cases cited by plaintiff-appellant wherein it is held that an owner of property will not be permitted to escape the payment of a commission to an agent who at the owner’s request, either express or implied, procures a purchaser ready, able and willing to buy the property upon the terms fixed by the owner. However, in its argument herein plaintiff-appellant fails to note the distinction between cases where the agent is authorized to represent the owner and cases where the agent has no such authority, as in the case at bar.
“It is important, of course, that an owner of property be not permitted to profit by the labors of others * * * but it is equally important that such others be not permitted to make themselves agents by volunteering to act for the owner without procuring authority, either express or implied, from the owner for that purpose.”

Under somewhat similar facts the court stated in Windsor v. International Life Ins. Co., 325 Mo. 272, 29 S.W.2d 1112, l. c. 1115: “He came unheralded and unknown, with a letter of introduction. His approach was for the purpose of making an offer * * Then, citing 4 Ruling Case Law, page 299: “ * * * to warrant the inference of a previous request, the owner must say or do something tending to prove that he accepted the broker as his agent in the matter — something more than merely selling to the party whom the broker, while acting as a volunteer, brought to him. Of course, the fact that a vendor accepts the benefits of a broker’s efforts does not render him liable to the broker for commissions on the theory of ratification, where he did not know that the broker was working in his behalf.”

If plaintiff’s quoted argument, “Plaintiff in its evidence never sought to establish or refute a contract between plaintiff and defendants” is accepted as accurate, a judgment for it could not have been sustained in any event; however, a rather liberal assumption will be made that plaintiff actually intended to show a contract between plaintiff and defendants to be evidenced by their acts and the commission provision in the sales contract.

On cross-examination Mr. Kniffen testified :

“Q. Mr. Kniffen, to clarify a point, was your corporation hired by Mr. Ac-cardi to perform any services for him?
A. In my opinion, yes.
“Q. And it would be incorporated in that contract, is that correct? A. It is incorporated by the 5 per cent written in there and the signature on the contract.
“Q. And the letterhead? A. And the fact it’s on our contract.”

A portion of Mrs. Phares testimony on cross-examination is significant:

“Q. They drove by — they were aware that house was for sale? A. Yes, we knew that was a nice section out there.
“Q. Go ahead. A. I submitted a contract on the house for $26,000.
“Q. How did that happen? Did you have occasion to go to Mr. Ac-cardi’s house? A. Yes, I’d spoken to him and I knew that the price was, it was twenty-six eight, but my clients wished to submit an offer, which we do quite frequently, and I submitted a $26,000 offer.
“Q. When did you start representing both parties? A. Well, I was representing the Clarks prior to the signature of the contract there.
“Q. At what point did you start representing Mr. and Mrs. Accardi?
A. When I put a contract on Mr. and Mrs. Accardi’s property.”

The testimony of both sellers may be summarized by saying that it consisted of an emphatic denial of the employment of plaintiff or a promise to pay any commission.

Plaintiff’s cited authorities state an accepted rule that, “An instruction- is erroneous which goes beyond the pleadings and the evidence to the extent that it would or could be confusing and mislead the jury.” Caddell v. Gulf, M. & O. R. Co., Mo.App., 217 S.W.2d 751, l. c. 756; Hart v. Midkiff, Mo., 321 S.W.2d 500. The latter case further holding at page 507: “Where evidence in support of an issue sübmitted has been admitted without obj ection, a complaint that such issue was not raised by the pleading is not available. Section 509.500; Evett v. Corbin, Mo., 305 S.W.2d 469, 474 [6]. Our liberalized pleading practice tends to emphasize the evidence properly admitted as the standard for determining whether the issues submitted by the instructions are properly in the case.”

The evidence brought out that the property sale had been completed and the escrow agreement arranged. This left only one question for the jury to consider and that was whether or not defendants owed plaintiff a commission. There is nothing in defendants’ instruction No. 2 that could have diverted their attention from that fact.

Defendants had a right to submit a verdict directing instruction based on a negative finding of the only issue shown by the evidence and one essential for plaintiff to recover.

Although not asserted by plaintiff, two possible comments should be made: (1) The use of the word “contract” tends toward an abstract submission; and, (2) The reference to the “petition” created an unnecessary hazard for defendants, but did not refer the jury to the pleadings to ascertain the issues, but “rather to identify a thing about which an issue is made by the pleadings.” Adams v. City of St. Joseph, 360 Mo. 806, 230 S.W.2d 862, l. c. 864. The use of either does not appear to have been prejudicial to plaintiff, nor to have materially affected the merits of this action.

For the reasons stated, your Commissioner recommends that the judgment be affirmed.

'PER CURIAM.

The foregoing opinion by J. P. MORGAN, Special Commissioner, is adopted as the opinion of the Court.

The judgment is affirmed.

ANDERSON, P. J., and WOLFE, J., concur.