author: COIL, Commissioner.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, a corporation, Respondent, v. CHESTER A. DEAN CONSTRUCTION COMPANY, a corporation, and Mid-Continent Plumbing, Inc., a corporation, Appellants.
    No. 49351.
    Supreme Court of Missouri, Division No. 1.
    July 8, 1963.
    Rehearing Denied Sept. 9, 1963.

      John R. Baty, Kansas City, Sheridan, Baty, Markey, Sanders, Edwards & Carr, Kansas City, of counsel, for appellant Chester A. Dean Construction Company.
    Edwin W. Rooker, Houts, James, Randall, Hogsett & McCanse, Kansas City, for appellant Mid-Continent Plumbing, Inc.
    Howard A. Crawford, Robert D. Youle, Joseph E. Stevens, Jr., Kansas City, John Mohler, Philip L. Wettengel, William C. Sullivan, St. Louis, of counsel, for respondent.
   COIL, Commissioner.

The Southwestern Bell Telephone Company brought an action to recover $150,000 as damages for alleged injury to its communications equipment which was located in a basement room of building 100 at the Richards-Gebaur Air Force Base in Jackson County. Defendants below (appellants here) were Chester A. Dean Construction Company, a corporation (hereinafter called Dean), and Mid-Continent Plumbing, Inc., a corporation. A jury found for Bell against both defendants and assessed damages in the sum of $30,000. Dean contends the trial court erred in refusing to direct a verdict for it at the close of all the evidence, in refusing to give its tendered instruction 12, in excluding testimony, and in giving respondent’s instruction 4. Mid-Continent contends the trial court erred in refusing to give its proffered instruction 13.

In June 1958 the United States entered into a contract with Dan Truog and Clyde Nichols, Inc., to air condition building 100, which was an E-shaped structure, the main part of which, for the purposes of this case, ran east and west with the three prongs of the E running north-south. Under the center prong was the basement which contained, among other things, Bell’s communications equipment. Air-conditioning equipment was to be installed in a room to be constructed adjacent to the west side ' of the existing basement. A six-inch water main ran from north to south into the area of the proposed new room and made a 90-degree turn left through the wall and into the basement of building 100 and, of course, that water main had to be relocated. The general contractor, Truog-Nichols (who originally was a defendant but who settled with Bell prior to trial), subcontracted with Dean for the erection of the new equipment room (including excavating to the depth of the existing basement), and subcontracted with Mid-Continent certain plumbing' work, including the relocation of the main.

Dean began excavating with a high loader about August 1 and soon exposed the top of the water main. The general contractor thereupon directed Dean to hand excavate in the area of the pipe for which Dean received compensation additional to that provided in the original subcontract. The area excavated was approximately 30 x 30. There were about 26 feet of the main exposed, about 14 feet running from the proposed north wall of the new room to the place where the main turned left and approximately 10 to 12 feet from that point eastwardly to the basement wall of building 100. The exposed main was about three or four feet above the floor of the excavated area and Dean’s carpenter foreman placed 2x4 and 2x6 vertical supports under the exposed main, but neither Dean nor anyone provided bracing or shoring against the lateral or longitudinal movement of the pipe. The 6-inch mam was in fact (and Dean’s carpenter foreman so knew) an active main (in which the static pressure per square inch was 85 pounds), furnishing water to building 100. The joints holding together the sections of pipe were mechanical joints which allow for ordinary expansion and which are joined by friction as opposed to being threaded or welded. As noted, the pipe was exposed early in August and remained so with vertical supports under it until the night of August 22 when the main failed and the basement of building 100 was flooded.

In the meantime, Dean was to cut a door in the wall of building 100 (to provide passage between the new room and the existing basement), and sometime between the first and fifteenth of August, by use of a jackhammer, the door was roughed in and on August 22, again by use of a jackhammer, the doorway’s edges were smoothed. On that same day, August 22, Mid-Continent dug down to a joint of the main in question, at a place 18 feet north of the north wall of a new room to obtain a measurement and about the same time removed some grouting from the opening through which the water main passed from the new room area to the basement room of building 100. Mid-Continent had arranged to change from the existing main to a relocated one on Saturday, August 23. About midnight on August 22 the joint afore-mentioned, 18 feet north of the new room’s north wall, came apart, and as a result water poured into the basement of building 100 and flooded the room in which was located Bell’s communications equipment.

Bell proved by expert testimony that the primary cause of the failure of the main, and the consequent flooding was the absence of bracing at the place where the 6-inch main made the 90-degree left turn into building 100 to prevent lateral or longitudinal movement of the pipe. The use of the jackhammer to smooth the door opening, the digging down to the joint which failed and the removal of the grout-mg were described as possible contributing causes. Bell’s expert witness testified that there was a custom among construction contractors and plumbing contractors when a live water main was uncovered to protect it against failure by doing the necessary shoring or anchoring of that main. The evidence was that Dean, through its authorized representatives, of course, knew that the main in question was exposed about August 1 and remained exposed until its failure on August 22; that it knew that the main was an active one carrying water for certain installations at the Air Force Base; that Dean hand dug around the pipe so as not to disturb it and shored the main with vertical braces as heretofore described; that the Dean company had theretofore done work in the area of high pressure water mains; and that the president of the company, Mr. Dean, who had knowledge of the situation as to this job, had had some engineering training and that his company had done commercial building over a period of years. Mr. Dean testified that he did not consider it his responsibility to discover how much pressure was in the main or what kind of joints held the sections of pipe and that if he had known those facts he would have done nothing more than was done because his company had no contract obligation to do more, and he therefore considered it not in the area of his company’s responsibility.

Dean’s contention that the trial court should have directed a verdict for it at the close of the evidence is based upon the premise that the evidence failed to show there was any duty on Dean to shore the water main against longitudinal or lateral movement. Dean points to the fact that there was no contract obligation, oral or otherwise, upon it to brace the main against such movement and, therefore, says Dean, its only duty was a common-law duty which could not exist unless Dean, in the exercise of ordinary care, knew or should have known that unless the main was braced against lateral movement its failure reasonably could have been anticipated. Dean's supporting argument is that the evidence showed that other persons, such as the general contractor’s engineer supervisor, the Air Force Base engineer supervisor, engineer representatives of the architects, and perhaps others, who obviously should have had superior knowledge of the danger of the failure of the main than that possessed by Dean, were present on the job from time to time during the entire period of the water main’s exposure and failed to give Dean any directions or instructions with respect to lateral bracing, even though they all saw that the only existing shoring was the vertical bracing provided by the 2 x 4’s and 2 x 6’s. Dean concludes that it is unrealistic to place a duty upon Dean when those with superior knowledge failed to recognize the danger.

The trouble with Dean’s argument, as we see it, is first, that we are here concerned only with the question of Dean’s tort liability to a third party not a party to any contract with Dean or his prime contractor; and, second, if Dean breached a common-law duty it owed to Bell to exercise ordinary care not to cause injury to Bell’s equipment, it is no defense that a similar duty may have rested upon the prime contractor, the architects, the plumbing contractor, and others, 65 C.J.S. Negligence § 102, p. 643, 38 Am.Jur., Negligence, § 64, p. 716; Schrader v. Kessler, Mo., 178 S.W.2d 355, 358 irrespective of whether the other tort-feasors did or did not have superior knowledge of the necessity, if any, to shore against lateral movement.

It seems clear that if the evidence was such that Dean, in the exercise of ordinary care, should have known what bracing was “necessary” to prevent a failure of the water main and a consequent flooding, Dean reasonably should have foreseen that unless the necessary shoring was installed some injury would result to whatever was in the basement of building 100. The question, of course, is whether Dean in the exercise of ordinary care should have known that “necessary” shoring to prevent a failure of the water main included bracing against lateral or longitudinal movement.

In determining whether Bell made a submissible case against Dean, we view the evidence in the light most favorable to Bell, give it the benefit of all favorable reasonable inferences, and disregard appellants’ evidence unless it aids Bell’s case. Daniels v. Smith, Mo., 323 S.W.2d 705, 706 [2]. We bear in mind also that negligence is ordinarily a jury question and where different reasonable conclusions may be supported by the facts and circumstances in evidence, the question whether one was negligent, is always for the jury. Fortner v. St. Louis Public Service Co., Mo., 244 S.W.2d 10, 13[1-3].

It is our view that a jury reasonably could have found in the circumstances of this case that Dean, in the exercise of ordinary care, should have determined what bracing was “necessary” to prevent a failure of the water main. Consequently, the jury was properly authorized to find that Dean was negligent in failing to provide bracing to prevent lateral or longitudinal movement and that such negligence contributed to directly cause injury to Bell’s equipment. The reasons for our conclusion in that respect are these. As we have heretofore noted, an expert witness testified (over Dean’s objection at the trial, but inasmuch as Dean does not here contend that such testimony was inadmissible and thus should not be considered in determining the question before us, we consider it evidence of Dean’s duty in the premises, see Gatzke v. Terminal R. R. Ass’n of St. Louis, Mo., 321 S.W.2d 462, 467[2-4]; Carlisle v. Tilghmon, Mo., 174 S.W.2d 798, 800 [2, 3]), that there was a custom among construction contractors and plumbing contractors when a live water main was uncovered to attempt to protect it against failure by necessary shoring or anchorage. Should Dean have known or have discovered that bracing against horizontal or lateral movement was “necessary shoring” to protect the main against failure? Matters in evidence which the jury could take into account in determining that question were: that Dean knew that its workmen had exposed a live active water main for a distance of 26 feet and that it remained exposed for a period of almost a month; that Dean had theretofore done work in areas close to high pressure water mains; that Dean was directed to hand dig around the water pipe; that his carpenter foreman braced the pipe with vertical supports; that Dean had had some engineering training and had done commercial building over a period of years; that Dean was unconcerned with the question of the sufficiency of the bracing because it was not a matter within its contract responsibility, and as a result made no effort to determine what constituted necessary shoring for the particular main in question. As we see it, whether, under the aforestated circumstances, there was a duty upon Dean to discover by proper investigation what kind of bracing or shoring was necessary to protect the main in question against failure and to provide it or to see to it that it was provided was a question peculiarly appropriate for a jury to determine.

We have examined the cases relied upon by Dean which state general rules as to foreseeability and that negligence is based upon faulty or defective foresight and upon what should have been anticipated rather than upon what happened. Those cases state well-recognized principles of law which we have taken into account in reaching our conclusion above.

It is unnecessary to consider Dean’s further contentions that there was no evidence that the use of jackhammers near the exposed main or the excavating of soil around the main were proximate causes. That is because our holding that the jury reasonably could have found that Dean was liable to Bell for negligence contributing to the primary cause of the failure of the main and the consequent damage to Bell’s equipment, fully answers Dean’s contention that the trial court erred in failing to direct a verdict for it at the close of the evidence.

Bell submitted its case against Dean by instruction 1 and against Mid-Continent by instruction 2. Dean contends the trial court erred in failing to give its proffered converse instruction 12 and Mid-Continent contends the court erred in failing to give its tendered converse instruction 13. It seems desirable to set forth instructions 1 and 2 in full, although each is long and portions of each are identical and other parts are similar. We emphasize that no attack by either appellant has been made upon the form or content of either instruction and, consequently, no question as to their correctness is before us. Thus, the fact that we set them forth in this opinion should not be construed as approval or disapproval by us of either the form or content of instruction 1 or 2. We quote them in full in an attempt to make clear our views with respect to instructions 12 and 13.

Instruction 1 was: “The Court instructs the jury that if you find and believe from the evidence that on and prior to August 22, 1958, plaintiff Southwestern Bell Telephone Company was the owner of certain telephone and communications equipment mentioned in evidence, which was installed in a basement room in the center wing of Building 100 at Richards-Gebaur Air Force Base near Kansas City, Missouri, if you so find, and if you further find and believe that defendant Chester A. Dean Construction Company in connection with the building of a room adjacent thereto on or shortly after August 1, 1958 excavated to a depth of about 6 to 8 feet below ground level and over an area of some 30 feet square, if you so find, and in the course of such excavation, said defendant uncovered and excavated under a six inch water main supplying said Building 100, which was constructed of sections of pipe with mechanical or gasket friction joints, which said water main was located at a depth of 4 to 5 feet below ground level, and which said main made a 90 degree turn in said excavated area and then entered and passed through the basement wall of said center wing in such a manner that approximately 26 feet of said water main, including the portion making said 90 degree turn, from on or shortly after August 1, 1958 was left in said excavated area without the support, weight and friction of the earth which had been excavated from over, under and around said main and without the lateral support of the earth against the place where said main made said 90 degree turn, if you so find, and that a joint of said water main separated or ruptured during the night of August 22, 1958, and water therefrom flooded the said room where plaintiff’s said communications equipment was located, if you so find; and if you further find and believe that said water main so exposed in said excavated area was not braced or shored laterally or horizontally so as to prevent movement of the said main in a lateral or horizontal direction, if you so find, and that said defendant, during the time said water main was so exposed without lateral or horizontal support used jackhammers in removing a concrete window well from the basement wall of said center wing adjacent to the point where said main entered said wall and in constructing a new doorway through said basement wall and that such jackhammer-ing caused vibrations in said water main, if you so find, and if you further find and believe that defendant Chester A. Dean Construction Company knew or by the exercise of ordinary care should have known that said water main had mechanical joints which were not sufficient without lateral or horizontal bracing and shoring to hold against internal water pressure and pressure surges and movement caused by vibrations, if you so find, and that said defendant knew or by the exercise of ordinary care should have known that there was danger of a joint of said water main separating or rupturing when so exposed without such support, if you so find, and subjected to said vibrations, if you so find, and that said defendant in the exercise of ordinary care would have braced or shored said main where it was so exposed without lateral or horizontal support, and that said bracing or shoring would have prevented said water main from rupturing and the water therefrom from flooding said basement, if you so find, and that said defendant in so excavating the soil from around said water main, if you so find, and in so failing to brace or shore the said water main against lateral or horizontal movement, if you so find, and in so using jackhammers near said main after it was so exposed, if you so find, failed to exercise ordinary care, then you are instructed that such failure of said defendant to exercise such ordinary care was negligence, and if you further find that such negligence, if you find that said defendant was negligent, proximately caused or contributed to cause a joint of said water main to separate or rupture and flood said room and damage plaintiff’s said equipment, if you so find, then you are instructed to find the issues herein for the plaintiff Southwestern Bell Telephone Company and against defendant Chester A. Dean Construction Company.” (Emphasis ours.)

Defendant Dean’s proffered instruction 12 was: “The Court instructs the jury that if you find and believe from the credible evidence that at the time and place mentioned in evidence, defendant Dean Construction Company, in using jackhammers near the main after it was exposed, did exercise ordinary care, your verdict must be for the defendant Dean Construction Company.”

Instruction No. 2 was: “The Court instructs the jury that if you find and believe from the evidence that on and prior to August 22, 1958, plaintiff Southwestern Bell Telephone Company was the owner of certain telephone and communications equipment mentioned in evidence, which was installed in a basement room in the center wing of Building 100 at Richards-Gebaur Air Force Base near Kansas City, Missouri, if you so find; and if you further find and believe that defendant Mid Continent Plumbing, Inc. contracted to and performed certain work consisting of installing floor drains and drainage tile on or about August 11, 1958 and preparation for a change in the water connection on or about August 22, 1958, in and near a new equipment room constructed adjacent to said center wing of Building 100, if you so find, and in connection therewith saw and in the exercise of ordinary care knew or should have known that a six inch water main supplying said Building 100 and constructed of sections of pipe with mechanical or gasket friction joints, at a depth of 4 to 5 feet below the surface of the ground extended through an area which had been excavated to a 6 to 8 foot depth below ground level over an area of about 30 square feet and in which area the said water main made a 90 degree turn and then entered and passed through the basement wall of said center wing in such a manner that approximately 26 feet of said water main, including the portion making said 90 degree turn, was left exposed in the excavated area without the support, weight and friction of the earth over, under and around said main, including at the point of said 90 degree turn, and that where so exposed said main was not braced or shored as to prevent movement of said main in a lateral or horizontal direction, if you so find, and that said defendant during the time said water main was so exposed without lateral or horizontal support removed concrete grouting from around said water main where it passed through the wall of said center wing and at a point about 12 to 15 feet outside the wall of the new equipment room dug a hole down to the top of a joint of said main, if you so find, and that a joint of said water main separated or ruptured during the night of August 22, 1958 and water therefrom flooded the said room where plaintiff’s said communications equipment was located, if you so find; and if you further find and believe that defendant Mid Continent Plumbing, Inc. knew or by the exercise of ordinary care should have known that said water main had mechanical joints which were not sufficient without lateral or horizontal bracing or shoring to hold against internal water pressure and pressure surges, if you so find, and that said defendant knew or by the exercise of ordinary care should have known that there was danger of a joint of said water main separating or rupturing when so exposed without such support, if you so find, and that said defendant in the exercise of ordinary care would have braced or shored said main where it was so exposed without lateral or horizontal support and that said bracing or shoring would have prevented said water main from rupturing and the water therefrom from flooding said basement, if you so find, and that said defendant in so seeing and knowing the earth had been excavated from, around said water main, if you so find, and in so failing to brace or shore the said water main against lateral or horizontal movement, if you so find, and in so removing grouting and digging down to a joint after the main was so exposed, if you so find, failed to exercise ordinary care, then you are instructed that such failure of said defendant to exercise such ordinary care was negligence, and if you further find that such negligence, if you so find that said defendant was negligent, proximately caused or contributed to cause a joint of said water main to separate or rupture and flood said room and damage plaintiff’s said equipment, if you so find, then you are instructed to find the issues herein for the plaintiff Southwestern Bell Telephone Company and against the defendant Mid Continent Plumbing, Inc.” (Emphasis ours.)

Mid-Continent’s proffered instruction 13 was: “You are instructed that if you find and believe from the evidence that at the time and place mentioned in evidence defendant Mid-Continent Plumbing, Inc., in removing grouting and digging down to the joint after the main was exposed, exercised ordinary care, your verdict must be for defendant Mid-Continent Plumbing, Inc.”

Dean and Mid-Continent each contends that it was entitled to the converse instruction it submitted in that each instruction submitted the converse of one of the essential elements of negligence which were conjunctively submitted in Bell’s main instructions.

The cases cited in the several briefs reaffirm that a defendant is, of course, entitled to a converse instruction; either the exact converse of a plaintiff’s verdict-directing instruction or the exact converse of an essential element of a plaintiff’s claim, or a defendant may submit facts, supported by evidence, which would disprove one or more of the basic facts of a plaintiff’s case. See for example, among the many cases so holding, Liebow v. Jones Store Co., Mo., 303 S.W.2d 660, 662.

Each appellant contends that Bell’s verdict-directing instructions 1 and 2 each clearly presented three different assignments of negligence in the conjunctive and that, consequently, each defendant was entitled to an instruction conversing one or more of those assignments. Bell contends that each of its verdict-directing instructions 1 and 2 submitted only one assignment of negligence consisting of a combination of hypothesized acts of commission or omission under the circumstances detailed in the fore part of each instruction. It is true, as Bell contends, that a plaintiff may choose to so frame an instruction as to require a finding that the commission of all of several hypothesized acts is the submitted negligence rather than, as a plaintiff may do, require a finding that the commission of each of several hypothesized acts constituted negligence. See Glowacki v. Holste, Mo., 295 S.W.2d 135, 139, 140. Upon an analysis, of the two verdict-directing instructions in this case we have the tentative opinion that Bell correctly contends that only one assignment of negligence was submitted as to each appellant consisting of the doing or failure to do all of three or more specified acts; but we need not rule that issue because even if we assume, as appellants contend, that instructions 1 and 2 each hypothesized conjunctively three different assignments of negligence, we are of the view that each of the proffered converse instructions was defective in the respect hereinafter noted and, consequently, that the trial court may not be convicted of error for failing to have given either of them.

Dean’s instruction 12 undertook to converse that part of Bell’s instruction 1 which stated “and in so using jackhammers near said main after it was so exposed.” Now the prior portion of instruction 1 to which the words “so using” and “so exposed” referred was that portion of the instruction first italicized above, viz., “and that said defendant, during the time said water main was so exposed without lateral or horizontal support used jackhammers in removing a concrete window well from the basement wall of said center wing adjacent to the point where said main entered the wall * * Instruction 12, the proffered converse, required the finding that “in using jackhammers near the main after it was exposed” Dean exercised ordinary care. It seems apparent that instruction 12 omitted any language descriptive of the condition of the main at the time it was “exposed,” i. e., “without lateral or horizontal support.” Not only did instruction 12 fail to contain any such language, it did not even contain the word “so” to modify “using jackhammers” or the word “so” in connection with the word “expose.” Nor did instruction 12 in any other way refer to the circumstances, set forth in Bell’s instruction 1, under which the jackhammers were used.

The essential issue (as to the use of jackhammers) to be conversed was that during the time the water main was exposed without lateral or horizontal support, Dean used jackhammers in removing a concrete window well, etc. As noted above, the proffered converse did not submit the essential fact that at the time Dean used a jackhammer the water main zvas without lateral or horizontal support; obviously, the critical question upon which liability depended. Consequently, it appears that instruction 12 omitted an essential part of the issue to be conversed and was therefore an incomplete converse which may have circumscribed the factual bases or a part of the factual bases for Bell’s recovery.

Instruction 13 which purported to converse one essential element of instruction 2 is defective for essentially the same reason stated as to instruction 12. The part of Bell’s instruction 2 which Mid-Continent’s instruction 13 purported to converse was this, “and in so removing grouting and digging down to a joint after the main was so exposed.” The prior portion of instruction 2, to which the words “s0‘ removing” and “so exposed” referred, was that portion of instruction 2 first italicized above and was, “and that said defendant during the time said water main was so exposed without lateral or horizontal support removed concrete grouting from around said water main where it passed through the wall of said center wing, and at a point about 12 to 15 feet outside of the wall of the new equipment room dug a hole down to the top of a joint of said main * * Instruction 13, the proffered converse, required the finding that, “in removing grouting and digging down to the joint after the main was exposed,” Mid-Continent exercised ordinary care. Again, as did instruction 12, instruction 13 omitted any language descriptive of the condition of the main at the time it was “exposed,” i. e., “without lateral or horizontal support.” And, like instruction 12, 13 failed to use the word “so” to modify “removing grouting” or to modify “exposed” and in no other way referred to the circumstances set forth in Bell’s instruction 2 under which the grouting was removed or the digging down was done. The essential issue to be conversed was whether Mid-Continent, at a time when the water main was exposed without lateral or horizontal support, removed the concrete grouting and dug down to a joint. It follows that instruction 13 omitted an essential element of the issue to be conversed and was defective for the reason set forth in our conclusion as to instruction 12.

It is well established that when erroneous instructions are presented in a civil case, a trial judge is under no duty to correct or modify them in any respect, and that instructions should be clear declarations of law applicable to the facts. Gaskill v. Cook, Mo., 315 S.W.2d 747, 756 [6, 7]. The trial court will not be convicted of reversible error for refusing to give an instruction which is not substantially correct. Wegener v. St. Louis County Transit Co., Mo., 357 S.W.2d 943, 948 [3, 4]. Neither proffered converse instruction 12 or 13 was substantially correct in that each omitted an essential part of the issue to be conversed. We hold, therefore, that the trial court did not commit reversible error in refusing to give instructions 12 and 13.

Appellant Dean contends further that the trial court erred in excluding portions of the contract between the United States and the prime contractor, Truog-Nichols. The trial court "admitted in evidence the first two pages of that contract (excluding from the jury’s view the monetary amount involved). The portions of the exhibit examined by the jury, however, clearly disclosed that the contract was between the United States and Truog-Nichols. There was no dispute in the evidence and the record shows clearly that each of the present appellants was a subcontractor of Truog-Nichols, the prime contractor. And, as we have heretofore indicated, the prime contractor had settled with Bell its alleged liability for contributing to Bell’s damage and the jury by instruction 5 was told that plaintiff had been paid the sum of $21,000 by Dan Truog and Clyde Nichols, Inc., and that such fact should not be considered as evidence that either Dean or Mid-Continent was negligent or that Bell’s equipment was damaged; and, further, by instruction 4, that the jury would deduct $21,000 from whatever amount, if any, it found was the total damage to Bell’s equipment.

Appellant Dean contends that three other proffered and excluded portions of the contract should have been examined by the jury. The parts in question were provisions: that the prime contractor would personally superintend the work; that the prime contractor would protect and preserve materials and equipment in all work performed and if the government decided that material, equipment, supplies, and work performed were not being adequately protected it could proceed to protect and charge the contractor therefor; that the prime contractor should protect existing structures, utilities and work of any kind against damage or interruption of service, and any damage or interruption should be restored promptly at the expense of the contractor.

Dean contends that it was necessary that these portions of the contract be before the jury in order “that the parties be clearly identified and the responsibilities at the scene delineated. The respondent’s constant reference to Dean as the contractor could easily have misled the jury into a belief that Dean had more responsibility than called for either by contract or by the exercise of ordinary care.” Dean further contends that only by reference to the contract between the government and Truog-Nichols could the jury determine the duties devolving upon the various actors. We think neither of those contentions is well taken.

In the first place, as we have heretofore indicated, the parties were clearly identified and their relevant responsibilities were dearly delineated. The details of their contract responsibilities were not relevant in this case based upon an alleged breach by appellant Dean of a common-law duty as opposed to a breach of any contrac-ual obligation and, as we have also indicated, the jury could not have misunderstood the relationship of the parties to each other and to the government.

With respect to the contention that the contract would show the duties devolving upon the various actors, it is a sufficient answer that Dean’s liability was not based upon any contract (either the one between the United States and Truog-Nichols or the one between Truog-Nichols and Dean), but upon an alleged breach of Dean’s duty to exercise the care imposed by the common law under the circumstances shown in evidence. Zuber v. Clarkson Const. Co., 363 Mo. 352, 251 S.W.2d 52, 55.

In view of the foregoing and taking into account the fact that the trial court did admit enough of the contract to clearly indicate to the jury who the prime contractor was and that the contract was between the government and the prime contractor, and taking into account that other evidence clearly showed the fact that both Dean and Mid-Continent were subcontractors of Truog-Nichols, our conclusion is that the trial court did not err in excluding the three proffered portions of the contract between the United States and the prime contractor.

Dean contends finally that the trial court erred in giving a portion of Bell’s damage instruction 4 which was, in part: “The Court instructs the jury that if your verdict is in favor of the plaintiff Southwestern Bell Telephone Company under the evidence and the instructions of the Court, then you should assess plaintiff’s damages, if any, at such sum as you find and believe from the evidence to be the difference, if any, between the reasonable value of plaintiff’s equipment mentioned in evidence which was located in the basement room of Building 100 at Richards-Gebaur Air Force Base, on August 22, 1958 immediately before the rupture of the water main and the flooding of said room, and the reasonable value of said equipment after the flooding of said room had taken place, if you find and believe that said difference in value, if any, directly resulted from the water damage; and in determining the difference in said value, if any, you may take into consideration the necessary expense, if any, incurred by plaintiff in repairing and restoring said equipment to a usable condition,, the actual cost of new equipment required to replace damaged equipment, if any, less-the salvage value, if any, of the damaged equipment, and the diminished value after repair of the equipment not replaced, if any, as you may find from the evidence to be a direct result of said water damage, if any.” (Italics ours.) The remainder of the instruction directed the jury to deduct $21,000 from Bell’s total damages, if any.

Thus, the jury was instructed to assess. Bell’s damages at such sum as it found to-be the difference between the reasonable value of plaintiff’s equipment immediately before the flooding and the reasonable value after the flooding if that difference resulted from the water damage; and in-determining that difference the jury was permitted to consider certain stated matters, among which was “the diminished value after repair of the equipment not replaced * *

Bell’s inventory and cost engineer, who qualified as an expert in his field, testified that certain equipment which was not replaced but was repaired was reduced in value by 25 per cent. He said that the value of the equipment was a certain amount at the time of the flooding and that he deducted therefrom the cost of some items that were actually added, and reduced the value of the remaining equipment by 25 per cent because, in his judgment, the service life of the remainder would have been reduced by that much. There was testimony that the equipment above the water line was affected so that most of the communications cables, even though not under water, had to be opened and dried and that the humidity caused corrosive action in the equipment above-the water line.

Dean contends that there was no substantial evidence to justify the direction that the jury might consider “the diminished value after repair of the equipment not replaced.” It seems clear to us,. however, that an expert’s positive testimony based not only upon his own experience and knowledge but upon other testimony in the record was not speculative but was substantial evidence of the diminished value after the repair of the equipment not replaced. Furthermore, and in any event, as we have heretofore noted, this item, that is, the diminished value after repair of the equipment not replaced, was only a matter which the jury permissively could consider in determining the damage suffered by Bell, if any. The damages, if any, to be allowed were correctly submitted as the amount of the difference in the equipment’s value before and after the flooding.

The judgment against both appellants should be and it is affirmed.

PER CURIAM.

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

All concur.

      . All dates are in 1938 unless otherwise stated.


source: Caselaw Access Project

author: STORCKMAN, Presiding Judge.

license: Public Domain

text:
    PUBLIC WATER SUPPLY DISTRICT NO. 2 OF JACKSON COUNTY, Missouri, a Municipal Corporation, Appellant, v. The ALEX BASCOM COMPANY, a Missouri Corporation, Respondent.
    No. 49365.
    Supreme Court of Missouri, Division No. 2.
    Sept. 9, 1963.

      Richard A. Erickson, Charles V. Garnett, Kansas City, for appellant.
    Wm. Coleman Branton, James E. Grier, Kansas City, Brewer, Myers & Branton, Kansas City, of counsel, for respondent.
   STORCKMAN, Presiding Judge.

This suit is for the condemnation of land to be used as a site for water storage, pumping, and distribution facilities. The plaintiff is a public municipal corporation organized under Chapter 247, RSMo 1959, V.A.M.S., for the purpose of supplying water to the public. The land taken consists of three lots in the southeast corner of defendant’s platted subdivision. The commissioners appointed by the trial court made a damage award of $20,300 and both parties filed exceptions. The jury awarded damages in the amount of $28,215. The plaintiff’s motion for new trial was overruled and it has appealed.

Since the judgment is for $28,215 and the appellant contends the maximum the respondent is entitled to recover is $12,-250, the amount in dispute, exclusive of costs, exceeds the sum of $15,000 and this court has jurisdiction of the appeal. Section 3, Art. V, Constitution of Missouri 1945, V.A.M.S.; § 477.040, RSMo 1959, V.A.M.S.

On December 12, 1960, the defendant contracted to purchase 41.69 acres of land in the City of Raytown, Jackson County, Missouri. The sale was consummated on February 17, 1961, and on the same day the defendant recorded a plat dividing the tract into a residential subdivision designated South Brooke Estates consisting of 141 lots. On or about January 20, 1961, the plaintiff began negotiating with the defendant for the purchase of a portion of the tract as a site for water storage, pumping, and distribution facilities. No agreement was reached and on March 20, one month and three days after the plat was filed, the plaintiff instituted this condemnation action.

When platted, South Brooke Estates was bounded on the south by 75th Street and on the other three sides by other residential subdivisions. The condemnor took lots numbered 20, 21, and 22 in the southeast corner which had a combined area of about one acre, a depth of 170 feet, and a frontage of 245 feet. At the time of the taking, the defendant was the owner of lots abutting the site on the north and of lots across Willow Street to the west. The defendant claims these adjacent lots were damaged by reason of their exposure to the site for water storage, pumping, and distribution facilities. The plaintiff contends the damages must be restricted to the market value of the three lots actually taken.

The lots taken had a higher elevation than any other lots in the subdivision and also a greater depth. Mr. Alex S. Bascom, president of the defendant company, testified that because of their elevation and location these lots were more desirable and he intended to build model homes on them for display purposes in connection with the sale of other lots in the subdivision and the building of homes on them. He further testified that the three lots had a reasonable market value of $18,375 based on a valuation of $75 per front foot. Other witnesses for the defendant fixed the value of the three lots at $12,240 and $12,550 on a basic value of $50 per front foot. One of the plaintiff’s witnesses testified that the value of the three lots was approximately $10,000 and the other $9,800.

Mr. Bascom testified that other lots in the vicinity of the site were damaged in the sum of $38,000 and that the defendant’s total damage was $56,375. Two other realtors and appraisers testified on behalf of the defendant that adjoining lots in the subdivision were damaged by the taking. One fixed this damage at $26,559.50 and the other at $26,715. The plaintiff’s evidence tended to prove that the present plan of the water district was to install water pumps and a concrete water storage tank 125 feet square with a capacity of 1,500,000 gallons of water on this site; that the tank and pumps would be entirely covered with earth except for two concrete vents and access towers about four feet square and five feet high; and that the surface of the site would be grass-covered and landscaped. Two witnesses for the plaintiff testified that the site in that condition would cause no damage to the remaining subdivision lots. One of plaintiff’s witnesses admitted that, if the plaintiff fenced the site, installed an office, or used the site for pipe storage, the value of lots in the vicinity would be depreciated about 50 percent.

The water district’s first contention is that the trial court erred in giving on behalf of the defendant instruction 1, in refusing plaintiff’s instructions 3 and 8, and in overruling plaintiff’s objections to evidence of alleged damage to lots in the subdivision other than the three lots actually-taken. The plaintiff asserts that the defendant’s right of recovery is limited to the fair market value of the three lots actually taken because the lands comprising the subdivision were laid out and platted by the defendant with the intention of constructing residences thereon and selling the improved lots separately. The fact of platting and the intention to develop the tract as a residential subdivision were admitted by the defendant.

Instruction 1 directed the jury to allow the defendant the fair and reasonable market value of the three lots “actually taken and appropriated” by the water district and further to allow damages, if any, “to the remainder of defendant’s subdivision as of March 20, 1961, caused by the taking of said three lots for water storage, pumping and distribution facilities” if the jury further found that the land was being used and developed by the defendant “as one tract or body of land on March 20, 1961.” The plaintiff’s offered instruction 3 would have instructed the jury that “you may not take into consideration either benefits or damages to any other property of defendant” except the three lots actually taken. To the same effect, plaintiff’s offered instruction 8 limited the jury to “damages at the fair market value of the three lots actually taken”. The essence of the plaintiff’s claim of error is that evidence of damage to lots other than the three actually taken was inadmissible because the subdivision had been platted and the lots were being developed as residential sites to be separately owned. At the time of the taking, none of the lots in question had been developed or sold and no streets or improvements had been installed in that vicinity. There was some evidence that at the time of the trial lots had been sold and residences constructed in other parts of the subdivision but not in the vicinity of the water storage site.

In support of its first point, the plaintiff relies solely on School District of Kansas City v. Phoenix Land & Improvement Co., 297 Mo. 332, 249 S.W. 51, a proceeding to acquire certain subdivision lots as a site for a high school. The condemnee appealed and the judgment was reversed and the cause remanded for a new trial on the ground that it was improper to permit a witness for the condemnor to disclose to the jury that he was one of the commissioners appointed by the circuit court to assess damages and further that it was prejudicial error to permit the witness to testify concerning the amount of damages fixed by commissioners since the report of the commissioners became functus officio when a jury trial was ordered on the issue of damages. The appellate court also considered a further claim of the condemnee that the trial court had erred in refusing to allow him to prove damages to remaining lots in the subdivision. The court complained of the failure of the appellant to set out the evidence excluded, but from its. own examination of the record the court concluded the facts to be in substance that some fifteen years before the condemnation action was instituted the defendant purchased 80 acres of land and platted it into about 400 lots including the 53 sought to be condemned; that residences had been built on about 200 of the lots; that the evidence clearly disclosed that the condemnee had never used the tract as an entirety but, on the contrary, lots were laid off and platted by the defendant with the intention of having residences constructed thereon and. sold separately. The court rule that platting the land as a subdivision made “a prima facie case as to segregation” and' overruled the additional assignment of error. 249 S.W. 51, 55. The Phoenix case,, decided in 1923, has never been cited irt support of the proposition for which the plaintiff contends. The ruling made was-unnecessary to the disposition of the appeal and on the general proposition that evidence of residual damage was not admissible appears to be contrary to the rationale in other Missouri decisions and to the weight of authority in other jurisdictions. We do not consider it controlling on the facts of the present case.

A comprehensive annotation in 6 A.L.R.2d 1197, entitled “Unity or contiguity of properties essential to allowance of damages in eminent domain proceedings on account of remaining property”, states the general rule as to the effect of platting a tract of land as follows, p. 1207: “Mere paper divisions are usually to be disregarded. Where the remaining land for which damages are claimed is divided from the land taken, or partly taken, only by a lot line, or where the land as a whole has been platted into lots, blocks, streets, and alleys, no corresponding change having been made in the physical condition or legal ownership of the property, the entire tract will be treated as a single parcel.”

Missouri condemnation decisions generally support this statement of the rule. In the case of St. Louis, Memphis & S. E. R. Co. v. Aubuchon, 199 Mo. 352, 97 S.W. 867, 871, 9 L.R.A.,N.S., 426, the court states that “in the determination of this question mere paper governmental subdivisions into sections, quartersections, townships, ranges, etc., amount to nothing in determining the oneness or unity of a tract of land.” See also Kansas City S. B. R. Co. v. Norcross, 137 Mo. 415, 38 S.W. 299, 301 [1], and Chicago, M. & St. P. Ry. Co. v. Baker, 102 Mo. 553, 15 S.W. 64. The mere fact that a tract of land is divided by a highway, street, or alley, does not preclude its being considered as a unit or entirety for the purpose of assessing damages in a condemnation case. St. Louis, Memphis & S. E. R. Co. v. Drummond Realty & Investment Co., 205 Mo. 167, 103 S.W. 977, 978[3]; Hannibal Bridge Co. v. Schaubacher, 57 Mo. 582.

In State ex rel. State Highway Commission v. Young, 324 Mo. 277, 23 S.W.2d 130, in addition to having the usual governmental subdivisions, the farm was occupied by different tenants who farmed their respective parcels separately. This was held not to destroy the oneness of the farm, the court stating 23 S.W.2d 132: “It is a well-established rule that where a tract of land consists of several parcels all connected and forming one body and owned and used together for a common or general purposes and as one property, the jury, in estimating the damages sustained by the owner by reason of the condemnation, should consider the injury to the whole, and not simply the injury to the parcels touched by the appropriation.”

In Missouri Pac. R. Co. v. Omohundro, Mo.App., 39 S.W.2d 561, 562, the court stated: “Furthermore where, as here, the defendants are the owner of separate and distinct lots, as shown by the plat introduced in evidence, and the right to condemn affects only one or more of the several lots, but not all of them, and the issue is raised by the owners of the property that all of the lots are in fact one tract of land, and that therefore all of the lots should be treated as a whole in determining the question of damages, such question as to whether the tract is an entirety or not should be submitted to the jury under appropriate instructions.”

A frequently cited case dealing with this problem is Currie v. Waverly & N. Y. B. R. Co., 52 N.J.L. 381, 20 A. 56, 19 Am. St.Rep. 452. The tract of land had been platted into town lots including streets and avenues. The railroad company condemned a strip 100 feet wide across the subdivision. Some years previous to the taking, lots had been offered for sale but no lots adjacent to the condemned strip had been sold. The appellate court held that the mere platting into lots and streets did not affect the unity of the land, stating 20 A. 57: “As the case comes before us, there is nothing actually upon the ground, nor is there anything constructively in the conduct of the owner, to break the previous unity of his title over his entire tract.” See also 18 Am.Jur., Eminent Domain § 270, pp. 910-911, and 29 C.J.S. Eminent Domain § 140, p. 984.

The tract of land in the vicinity of the water storage site had not been developed at the time of the taking and remained practically in its original condition. No streets, sewers, or other improvements had been installed and the defendant retained title to all of the lots. There was also evidence that the tract was being used as a unit. The purchase price of the land was $125,000 and the defendant obligated itself to develop the subdivision at a total cost of $283,000 including the cost of the land. A mortgage was placed on the subdivision as an entirety at the time of the purchase, and the lots in question were covered by a deed of trust at the time the condemnation was filed. The trustee under the deed of trust and the mortgagee, Prudential Insurance Company of America, were originally made party-defendants but were dismissed on the filing of a disclaimer to the proceeds of the condemnation. The defendant also developed lot 140 as agreed with a swimming pool and as a playground for the benefit of all residents of the subdivision. The defendant was obligated to improve and develop the subdivision as a whole. At the time of the condemnation, the defendant was engaged in a business venture encompassing the tract as a whole. The business purpose was to develop the tract as a subdivision and to dispose of the lots and improvements. The financing, as well as other agreements and obligations, applied to the entire tract and each part ■of it.

There was substantial evidence from which the jury could reasonably find that no change corresponding to the lot lines had been made in the physical condition or legal ownership of the property, that the lots in question were united in use at the time of the condemnation and should be treated as a single parcel. The issue was properly submitted to the jury. It follows that the trial court did not err in admitting evidence of damage to the remaining lots and in giving defendant’s instruction 1 submitting that theory of damages and in refusing plaintiff’s instructions 3 and 8.

Plaintiff next contends that the trial court erred in refusing to give instruction No. 7 which reads as follows: “The court instructs the jury that, in determining whether there is any damage to the defendant, you shall not take into consideration such inconveniences and disadvantages, if any, to the defendant as are the consequences of the lawful and proper use of the plaintiff water district of the land in question in so far as the same are common to the other landowners in the neighborhood, no part of whose lands are taken for said water storage facilities.” Coupled with this assignment is the charge that the court erred in rejecting evidence and offers of proof of damages common to other landowners in the neighborhood. The plaintiff cites four state highway condemnation cases and one railroad case which tend to support the giving of such an instruction. They are: State ex rel. State Highway Commission v. McMurtrey, Mo., 300 S.W.2d 521; Missouri, A. & G. R. Co. v. Harris, Mo., 181 S.W. 34; State ex rel. State Highway Commission v. Sharp, Mo.App., 62 S.W.2d 928; State ex rel. State Highway Commission v. Stoddard Gin Co., Mo.App., 62 S.W.2d 940; and State ex rel. State Highway Commission v. Watkins, Mo.App., 51 S.W.2d 543. Another such case is State ex rel. State Highway Commission v. Graham, Mo.App., 74 S.W.2d 493.

The rule upon which this type of instruction is based appears to have originated with respect to disturbances produced by the operation of railroad trains. See Harris, 181 S.W. loc. cit. 35 [3] and, for a more complete statement of the rule, Nichols on Eminent Domain, 3d Ed., Vol. 2, § 6.4434(5), p. 360. The Watkins case, apparently the first to apply the rule to highway cases, states, 51 S.W.2d loc. cit. 545: “Certainly the same rule should be applied to motor traffic which, in that respect, can hardly be compared to the annoyance made by the roar, whistle, soot, and smoke of the locomotive.” An instruction such as No. 7, if given the broad application for which the condemnor contends would be misleading in this kind of case.

We have been cited to no Missouri case applying the rule to a case of this character, and our own search has disclosed none. We find authority, however, which indicates that the scope of the instruction should be limited and clarified if offered in a case of this nature. Siemers v. St. Louis Electric Terminal Ry. Co., 348 Mo. 682, 155 S.W.2d 130, originated as an injunction suit to prevent the defendant from obstructing access to plaintiffs’ property by reason of the construction of a subway in the street, but it proceeded as a condemnation case by stipulation of the parties. One of the questions presented on appeal is practically identical with the present one. As stated by the court, it is, 155 S.W. 2d loc. cit. 136: “Should instruction No. 1, as to damages for interference with access, have been restricted as claimed ? As stated, defendant says that plaintiffs’ instruction No. 1 is bad because it did not restrict damages, for interference with access to the building, to such damages, if any, that were different in character to that sustained by all other abutting owners. This complaint is the same as the complaint on the refusal of defendant’s instruction H, which follows: 'The court instructs the jury that if you believe and find the interference of access to plaintiffs’ property was no different in character than the interference with access of other property owners along the line of the building of the subway and widened street, the plaintiffs cannot recover for any loss on account of such interference, and all such claims are withdrawn from your consideration.’" The opinion cites and quotes from authorities distinguishing between interference with travel along a public street which is a personal right not within the protection of the constitutional provision, § 26 of Art. I, and the destruction or material impairment of an owner’s access to his property which is a taking or injury to private property protected by the constitution. This court held that the refusal to give instruction H and the refusal to limit instruction 1 was not error stating, 155 S.W.2d loe. cit. 136: “Instruction H, however, is broad enough to deny recovery for interference of access, even though access, to plaintiffs’ house, from the street in front were entirely prevented, provided it should be that such was the case with all other abutting owners. Such is not the law.” Instruction 7 in the present case has the further vice that it is not related to or identified with any particular inconvenience or disadvantage.

Lewis on Eminent Domain, 3d Ed., Vol. I, § 364, p. 665, makes this statement of the rule: “According to the rule laid down in the last section the owner of property may recover, as for a damage or injury, under the constitution, though the only actual injury or wrongful act complained of consists of an obstruction or interference with a right which he enjoys in common with the public. In such case, it is the universal rule that the plaintiff must show an injury or damage which is special and peculiar to himself; as distinguished from that suffered by the public at large. But diminution in value of the property, resulting from the interference, is a special and peculiar injury within the rule.” A similarity in principle between the ascertainment of damages and benefits in condemnation cases is indicated by Filger v. State Highway Commission, Mo.App., 355 S.W.2d 425, 428 [1], wherein it is stated that: “Traffic, great or small, is merely an incident of streets and highways and cannot be considered either as an element of damages or benefits.”

A landowner’s complaint about a comparable instruction dealing with special benefits was stated and disposed of in State ex rel. State Highway Commission v. Young, 324 Mo. 277, 23 S.W.2d 130, 134 [8], as follows: “Respondent’s instruction No. 1 is further assailed on the ground that it erroneously defines ‘special benefits’ to be those which are unique and enjoyed by the respondent’s farm alone. That part of the instruction told the jury that from the damages ascertained they ‘should deduct the benefits, if any, peculiar to such tract arising from the running of the road through it; and by peculiar benefits is meant such benefits derived from the location of the road as are pectiliar to the tract itself, and not shared in common by it and other lands in the same neighborhood.’

“In the giving of this instruction the learned trial judge followed a form approved in McReynolds v. Kansas City, C. & S. Ry. Co., 110 Mo. 484, 487, 19 S.W. 824, and later sanctioned in theory in Mississippi County v. Byrd (Mo.Sup.) [319 Mo. 697], 4 S.W.(2d) 810, 812. But since the trial of the case below an instruction of similar pattern was condemned by this court en banc in State ex rel. State Highway Commission v. Jones [321 Mo. 1154], 15 S.W.(2d) 338, 340. That decision holds the advantages enjoyed by land from abutting on a highway improvement may be a special benefit, notwithstanding other lands along the highway are similarly benefited. In other words, the special benefits do not have to be exclusive and peculiar to the one tract involved. Following the well-reasoned opinion in the Jones Case, an instruction identically like the one in this cause was disapproved in State ex rel. State Highway Commission v. Duncan (Mo.Sup., Div. 1) [323 Mo. 339], 19 S.W.(2d) 465, 466, 467. So it must be ruled the giving of the instruction in this instance was error.” The logic of the ruling is further demonstrated by the discussions in the Young, Jones, and Duncan cases which need not be repeated here. The analogy to an instruction on special damages is so similar as to be strongly persuasive. In fact two of the four authorities cited in Harris, 181 S.W. 34, 35 [3], in support of the approval of this type of damage instruction are cases dealing with benefits, general and special. See Quincy, Mo. & Pac. R. Co. v. Ridge, 57 Mo. 599, 601, and Southern Illinois & M. Bridge Co. v. Stone, 194 Mo. 175, 183, 188, 92 S.W. 475. In the other two cases cited, the “inconveniences” referred to in the instructions were identified as smoke, noises and other disturbances from the operation of trains. In this case the plaintiff claims that substantial evidence of damage to the market value of the remaining land should be rejected and the defendant’s recovery limited because other landowners in the area suffered damages of the same kind. We doubt if this sort of instruction was intended to apply to such elements of damage.

Generally, an impairment of the market value of the remaining land arising out of the use to be made of the land taken can be considered by the jury as an element of damages in ascertaining the just compensation to which the condemnee is entitled. Art. I, § 26, Constitution of Missouri 1945; KAMO Electric Cooperative, Inc. v. Baker, 365 Mo. 814, 287 S.W.2d 858, 861-862 [3-7]; Prairie Pipe Line Co. v. Shipp, 305 Mo. 663, 267 S.W. 647, 649 [3]; St. Louis Belt & Terminal Ry. Co. v. Mendonsa, 193 Mo. 518, 91 S.W. 65, 67 [2]; 18 Am.Jur., Eminent Domain § 265, p. 905.

The extent of the condemnor’s rights in the land taken as fixed by the petition may be considered in ascertaining the condemnee’s damages since it is presumed that the appropriator will exercise his rights fully. Union Electric Co. v. Levin, Mo.App., 304 S.W.2d 478, 481 [1], The purpose of taking the land as expressed in the petition was as “a site for water storage pumping and distribution facilities.” The defendant’s evidence tended to prove that water supply companies sometimes installed storage tanks above ground, fenced their properties, erected office buildings and stored pipe and other supplies on their premises. The evidence further tended to prove that the present use and the authorization of other uses had diminished the market value of the remaining land.

According to the plaintiff’s evidence, present plans for use of the land taken were limited to the installation of the concrete underground storage tank which tank “was about the right size for the needs of the District for several years, 10, 15, or 20 years in the future, depending on its rate of growth”. This evidence did not preclude the jury’s consideration of other possible uses. The expression of an intention by the condemnor or the probability that he will not exercise rights of user specified, or reasonably implied, in the condemnation petition is not sufficient to exclude consideration of such rights in the assessment of the condemnee’s damages. State ex rel. State Highway Commission v. Johnson, Mo., 287 S.W.2d 835, 839 [6]; Union Electric Company v. Levin, Mo.App., 304 S.W.2d 478, 481 [2].

In the circumstances of this case, the trial court did not err in refusing to give plaintiff’s instruction 7 by which the plaintiff proposed to withdraw from the jury’s consideration damages based on the diminished market value of the defendant’s remaining land solely because other landowners had suffered similar damage. Siemers v. St. Louis Electric Terminal Ry. Co., 348 Mo. 682, 155 S.W.2d 130, 137 [13]; State ex rel. State Highway Commission v. Young, 324 Mo. 227, 23 S.W.2d 130, 134 [8]; St. Louis Belt & Terminal Ry. Co. v. Mendonsa, 193 Mo. 518, 91 S.W. 65, 67 [2].

Neither did the court err “in rejecting all evidence and offers of proof of such common damages”. At a conference in chambers before the selection of the jury, plaintiff objected to any testimony concerning “severance damages” to any adjoining property of the defendant; one of the grounds specified was that any damages so claimed would be common to the neighborhood. It should be noted that this objection referred to evidence which the plaintiff anticipated the defendant would offer regarding the existence and amount of damage to the defendant’s remaining land. It did not involve evidence that the plaintiff proposed to offer which is the plaintiff’s immediate complaint. During the direct examination of two of plaintiff’s witnesses, Luke Choplin and John M. Propst, the plaintiff undertook to interrogate them whether there would “be any greater damage” to defendant’s remaining lots “than to the area to the east” and “whether the same damages, if any, would accrue to the people on the east and south as on the west and north”. Objections were sustained to these questions as well as offers to prove by these witnesses that the damages to the defendant’s property would be the same as to other property in the neighborhood. The proposed testimony was irrelevant to any proper issue in the case; it called for conclusions of the witnesses which would have invaded the province of the jury. The trial court did not err in excluding the testimony offered.

Next the plaintiff contends that the trial court erred in refusing to give this instruction, identified as No. 9: “You are instructed that the fair market value of the three lots in question is not to be determined by their value to the plaintiff, or plaintiff’s necessity of acquiring it, nor its peculiar value to defendant. These considerations must in no way be allowed to affect the jury’s determination of the fair market value of the lots taken by plaintiff.” In support of this assignment the plaintiff relies upon St. Louis, K. & N. W. R. Co. v. Knapp, Stout & Co. Company, 160 Mo. 396, 61 S.W. 300, in which it was held that the giving of such an instruction was not error. The instruction is cautionary but the plaintiff asserts it was needed because Mr. Bascom put a peculiar value on the three lots in that he testified that they were worth $75 per front foot, and that he would have built model homes on them and not offered them to the public. The plaintiff stops short of Mr. Bascom’s complete testimony. There was further testimony that the defendant would not have offered the lots to the public “for the present”, and that the higher price was justified by the fact that they are “higher and better and deeper, and they are on an arterial street.” Mr. Bascom also stated that the price he put on the lots was the market value which a willing purchaser would pay a willing seller. It is clear from the record that the defendant’s proposed use of the lots for model homes was by reason of their choice location and dimensions, and would have been temporary. The proposed use as display homes simply demonstrated that Mr. Bascom considered these more desirable than the other lots. There was no evidence that the price of $75 per front foot was a “peculiar value to defendant”.

The plaintiff further asserts that it was urgently necessary to acquire this property in order to provide a much-needed water supply. The only evidence touching this subject is in the direct examination of plaintiff’s employee and witness John M. Propst. He identified a contract between the plaintiff and Missouri Water Company and testified that it was a twenty-year contract for an exclusive supply of water, that the plaintiff contracted to build a reservoir for the storage of water, and that the proposition was ratified by a vote of the people on February 28, 1961. The offer of instruction 9 presents the anomaly of the plaintiff requesting that the jury be instructed to disregard the evidence it had voluntarily offered. We are convinced from our examination of all the instructions and the evidence in the case that the trial court did not commit prejudicial error in refusing to give instruction 9.

The plaintiff’s next point for argument simply states that the verdict is “wholly unsupported by the competent evidence in the case.” The substance of the plaintiff’s brief argument under this point, however, is that the verdict should have been limited to the three lots in question and that the verdict should be reduced by appropriate order of this court to $12,250. Then for the statement of its final point the plaintiff asserts that: “That part of the jury’s verdict which exceeds the actual value of the three lots taken cannot stand, because based entirely on matters which are merely speculative, and may or may not happen.” This is but a restatement of the argument made under the previous point. The plaintiff concludes its reply brief with the assertion that the judgment should be reduced to $8,050, all without explanation of why the verdict should be reduced below the $12,250 figure set out in its original brief and above noted. These skimpy statements of the points relied on and the apparent belief that the written argument can be utilized to preserve questions for appellate review is very discouraging to a court that has been trying for years to secure a reasonable compliance with S.Ct. Rule 83.05, V.A.M.R.

These two final points are so in-terwined that they must be treated together. Insofar as they preserve anything for review, they are slight variations of contentions previously made and disposed of in this opinion. At the plaintiff’s request, the court gave instruction 5 which cautioned the jury that “damages, if any, cannot be based or allowed upon matters which are merely speculative and may or may not happen.” The defendant’s evidence of damage to the market value of the remaining lots as well as the evidence of the market value of the three lots taken was substantial and not speculative.

The verdict was well within the range of damages established by the evidence. An appellate court will not ordinarily disturb a judgment for damages based on conflicting evidence in a condemnation proceeding where the amount awarded is supported by substantial evidence and is within the limits of the proof. State ex rel. Chariton River Drainage District v. Montgomery, Mo., 275 S.W.2d 283, 287 [5]; City of St. Louis v. Pandjiris Weldment Co., Mo., 270 S.W.2d 17, 20 [5]; Union Electric Company of Missouri v. Miller, Mo.App., 354 S.W.2d 341, 344 [6],

The defendant filed a motion to dismiss the plaintiff’s appeal for failure to comply with S.Ct. Rule 83.05(a), (2), and (c), V.A.M.R., in that “the appellant’s statement of facts is argumentative, incomplete and unfair.” The statement is vulnerable to the criticism made of it, and some of the statements of the points relied on also fall short of what is contemplated by (a), (3), and (e) of Rule 83.05. The points relied on are practically devoid of reasons why the rulings complained of are claimed to be erroneous. Nevertheless, the preference to dispose of the case on the merits outweighs the deficiencies in the brief. Therefore, the motion to dismiss the appeal is overruled.

All of appellant’s assignments of error have been considered and found to be without merit. Accordingly the judgment is affirmed.

All of the Judges concur.


author: STOCKARD, Commissioner.

text:
    Karol COSSAIRT and Gloria Cossairt, his wife, Appellants, v. Marie REICH and Frue Reich, Respondents, M. F. A. Mutual Insurance Company, Respondent.
    No. 49746.
    Supreme Court of Missouri, Division No. 2.
    Sept. 9, 1963.
    Green & Green, H. D. Green, West Plains, for appellants.
    R. D. Moore, A. W. Landis, West Plains, for respondents.
   STOCKARD, Commissioner.

This is a suit by the purchaser for specific performance of a contract for the sale of real estate. From an adverse judgment plaintiffs have appealed. Title to real estate is involved within the meaning of Art. V, § 3, Constitution of Missouri, V.A.M.S. Barr v. Snyder, Mo., 294 S.W.2d 4.

In June 1961 respondents Frue Reich and his wife Marie Reich listed their 334 acre Howell County farm for sale with the United Farm Agency at West Plains, Missouri, of which Jack Sayre was agent and Charles Franks was salesman. Associated with Mr. Sayre was his wife, Marie Sayre, who was licensed as a real estate agent. The terms of the listing included the requirement that one half of the purchase price, or $10,000, be paid at the time of the sale. The method of and time for payment of the balance was to be arranged. Shortly thereafter Frue Reich went to Idaho to work. In the early part of July Mr. Sayre showed the Reich farm to Mr. and Mrs. Karol Cossairt, residents of Indiana, and a proposed contract of sale was drawn by Charles Franks on terms requested by the Cossairts which were different from those in the listing in at least two respects. Pursuant to this proposed contract the buyers were to receive one half the corn crop, and instead of a down payment of $10,000 the buyers would pay $3,000 and assume a $7,000 F.H.A. mortgage. Mrs. Reich was contacted, and a telephone call was made to Frue Reich at Rupert, Idaho. According to Mr. Reich, Mr. Franks told him that he had “what you want” in a purchaser except that as part of the transaction he wanted one half of the corn crop. According to Mr. Franks he told Mr. Reich that he had an offer of “$20,000; $3,000 in cash down, assume F.H.A. loan and him to carry the balance at $2,000 a year including six per cent interest,” but there was no discussion about the purchaser assuming the mortgage. Mr. Franks further testified that he read the proposed contract over the telephone, but Mr. Reich denied this. Mr. Reich refused to include one half of the corn crop in the sale. During the conversation he told his -wife that if she could get $10,000 down she should sell the farm; otherwise she was not to sell. The following day, which apparently was July 6, Mr. Sayre and Mr. Franks went to Mrs. Reich and offered to reduce the real estate commission from $2,000 to $1,500 (the commission was 10% of the sale price) if the sale could be completed with the purchaser receiving one half of the corn crop. This would have resulted, in effect, in Mr. and Mrs. Reich selling one half of the corn crop for $500. Without reading all of the proposed contract of sale and without again calling Mr. Reich, Mrs. Reich signed the proposed contract and placed her husband’s name on it. No issue is made concerning her authority to do so.

There is no question but that both Mr. Sayre and Mr. Franks knew and understood that Mr. and Mrs. Reich wanted to receive $10,000 as a down payment, and that the listing called for such payment. Mr. Franks said he drew the proposed agreement and that he knew it was not drawn according to the terms of the listing. Mr. Sayre’s position was that in his opinion the payment of $3,000 down and the assumption by the purchaser of the $7,000 F.H.A. mortgage constituted “paying half down.” Mrs. Reich testified that when Mr. Sayre and Mr. Franks came to see her on July 6, Mr. Sayre asked her if what she and Mr. Reich wanted was to pay off the F.H.A. loan and then take a first mortgage and she said it was. However, Mr. Sayre made no explanation to her of what was meant by the purchaser assuming the F.H.A. mortgage, and Mr. Franks testified that the meaning of this provision was not discussed because she did not “question what ‘assume’ means.” When asked on cross-examination who was to carry the first mortgage, Mr. Sayre said “there wasn’t to be any first mortgage. It was to be sold on a contract for a deed.” What he meant by this is not clear because the F.H.A. mortgage would have constituted a “first mortgage” even if no second mortgage was to be given. The terms of the contract of sale are equally confusing. It was there expressly provided that “all deferred payments, not already secured by deed of trust or mortgage, are to be evidenced by note or notes signed by second party [the Cossairts], secured by mortgage or deed of trust on said real estate with interest from date of deed at the rate of 6% per annum,” and that “on receiving such payment” the sellers should “deliver, to said [buyers] * * * a proper deed containing a general warranty and the usual full covenants for the conveying and assuring to them merchantable title to said premises, free from all encumbrances except those mentioned herein.” It is not clear what was meant by “such payment,” but if there was to be a deed of trust executed by the buyers to the sellers, as the above language clearly provides, the reference must have been to the payment of the $3,000. However, at another place the contract provided that a “deed shall be delivered” on October 5, 1961 “at the office of the 1st National Bank in the City of West Plains, Mo.” It did not state to whom delivery was to be made or for what purpose, and there was no escrow agreement in the contract.

About two weeks after Mrs. Reich signed the contract of sale she first received a copy of it, and after reading it and perhaps receiving legal advice as to its effect and meaning, but this is not clear, she notified Mr. Sayre and Mr. Franks that it was not drawn up the way she and her husband had wanted it. Mr. Sayre told her, according to Mrs. Reich, that she was getting upset over nothing. That weekend she called her husband in Idaho, and he then called Mr. Sayre and told him that the contract was not drawn the way he had understood it, ,and that he was not going to sell the property.

On September 18 there was another telephone call made to Frue Reich. Present at the West Plains end of the conversation were Mr. Franks, Mr. and Mrs. Sayre, Mr. and Mrs. Cossairt and Mrs. Reich. This telephone conversation lasted almost an hour, and there is much dispute in the testimony not only as to the subject matter of the conversation but as to what was said. According to Mr. and Mrs. Reich they were protesting the entire transaction. Mrs. Reich told her husband that “they are all jumping on me,” and there was testimony to the effect that Mr. Sayre was threatening to sue the Reichs if they did not go through with the sale, that some threat or statement was made that Mrs. Reich “could be gotten for forgery,” and that Mrs. Reich was upset and crying. Mr. Franks testified that “I told him [Mr. Reich] that she [Mrs. Reich] signed the contract and both sides were expected to live up to it just the same,” apparently referring to the fact that. Mr. Reich told him that “he didn’t like what was going on.” According to Mr. Sayre, however, the entire conversation pertained to a proposed change in the date for the purchasers to take possession. He said that he-knew of no misunderstanding about the terms of the contract of sale. Notwithstanding the admitted terms in the listing, and that he attempted to justify the terms of the contract on the basis that it did in fact provide for a down payment of one half the purchase price, he testified that Mrs. Reich never told him that she and her husband wanted one half of the purchase price as down payment. He also testified that during the telephone conversation Mrs. Reich did not cry, that there was no threat of a lawsuit, and that he knew nothing about a threat of a charge for forgery. However, Mr. Franks admitted that forgery “was mentioned at one time” during the telephone conversation. In any event, after this telephone conversation was concluded, Mrs. Reich signed her name and that of her husband to a handwritten statement wherein it was provided that they agreed to give possession of the 334 acres of land by December 1, 1961, and give possession of the house by October 5, 1961. She testified that she did so because after the long telephone conversation her husband said it “looks like we are being took. I am out here and you are there and there is nothing else we can do.”

Following this telephone conversation of September 18, Mr. Sayre had Mr. E. V. Kell, an attorney, draw up a new contract of sale, which appellants say in their brief was “in conformity with the agreement had.” It is a well drawn instrument which sets forth concisely its terms, but we need not set them forth or comment on them. When this new contract was sent to Mr. Reich he signed it and returned it to his wife. On his instructions she then took it to Mr. A. W. Landis, an attorney, and when advised by him that it did not provide for a first mortgage to be given to the sellers she “struck the names off the copies” and instructed Mr. Landis not to deliver the contract and it was not delivered.

■ There was evidence that Mr. Cossairt had not applied to the F.H.A. to be permitted to assume or take over the $7,000 F.H.A. mortgage. Whether Mr. Cossairt would, on application, be permitted to assume the F.H. A. mortgage would depend upon approval by the “county committee.” At the trial Mr. Cossairt indicated he would borrow the money from other sources, without specifying them, if necessary.

. On April 17, 1962 the Cossairts filed a “supplement” to their petition in which they alleged that after this suit was filed the house on the property was destroyed by fire, and that the M.F.A. Insurance Company insured the dwelling for approximately $5,000. They also moved that the M.F.A. Insurance Company be made a party defendant, and such motion was granted. Apparently the insurance money received or to be received has been or will be applied to reduce the note secured by the F.H.A. mortgage. Appellants do not advise us what they think should be the order of this court in relation to this $5,000 in the event they should be found to be entitled to specific performance.

Appellants pleaded both contracts in their petition, but not in the alternative. For the reasons previously set forth concerning the second contract, if appellants are entitled to the relief sought it must be by reason of the contract dated July 5, 1961. The trial court did not make findings of fact and conclusions of law; it merely found “the issues for the defendants” and that “under the evidence the plaintiffs are not entitled to the relief sought on said petition.”

In this equitable proceeding we review the case de novo and determine the credibility, weight and value of the testimony and evidence, and we arrive at our own conclusions based on the entire record. Durwood v. Dubinsky, Mo., 361 S.W.2d 779, 787. However, in doing so we give due deference to the findings and conclusions of the trial chancellor who had the opportunity in reconciling conflicting testimony to see and hear the witnesses and thereby judge their credibility. In such case the judgment of the chancellor “will be sustained unless the proof is palpably insufficient in clarity and cogency to warrant the finding made by him.” City of Warsaw v. Swearngin, Mo., 295 S.W.2d 174. See also Ethridge v. Perryman, Mo., 363 S.W.2d 696.

Mrs. Sayre and Mr. Franks both testified that in handling this transaction they were acting as the agents for Mr. and Mrs. Reich who were to pay the commission of 10%' of the sale price, and they testified that they were also acting as the agents of Mr. and Mrs. Cossairt. According to Mrs. Sayre she was representing the interests of both the buyers and sellers at the same time, and she was not representing exclusively the interests of Mr. and Mrs. Reich. This case demonstrates most vividly the dangers and inadvisability of such dual agency and divided loyalty.

Mrs. Sayre and Mr. Franks admit that the contract of sale dated July 5, 1961 was not drawn according to the terms of the listing made by Mr. and Mrs. Reich, but that it was drawn according to the instructions of Mr. Cossairt. However, when Mr. Sayre and Mr. Franks took the contract to Mrs. Reich they made no explanation to her of the change or its effect, and according to Mr. Reich when he was called on the telephone he was told that they had a purchaser exactly as they wanted except that he wanted to receive one half of the corn crop free. While there was a dispute in the evidence as to what Mr. Franks told Mr. Reich over the telephone, the conclusion that Mr. Reich was led to believe that the inclusion of one half of the corn crop was the only change is borne out in some respects by the assertions of Mr. Sayre that the proposal that the buyers pay down $3,-000 and assume the F.H.A. mortgage amounted to a down payment of one half of the purchase price. If this were true no explanation except as to the corn crop was necessary or required, and we conclude that none was made. However, Mr. Sayre obviously was wrong. The contract as drawn did not call for payment of one half of the purchase price, and it resulted in the Reichs receiving a second mortgage to secure the balance of the payment, or in receiving or retaining some other interest subject to the F.H.A. mortgage. But, it is obvious, and it should have been obvious to Mr. and Mrs. Sayre and to Mr. Franks, that the Reichs intended to use the $10,000 to pay the real estate commission and pay off the F.H.A. mortgage and then take a first mortgage from the buyers to secure the payment of the balance. We do not imply that the parties could not change the terms of the listing, or that it was not proper for the real estate agents to attempt to find terms agreeable to both parties. However, the change in the contract in this case, made without a full and complete explanation to both Mrs. Reich and her husband, resulted in them receiving less under the contract than they intended or expected to receive.

The trial court commented that it considered Mrs. Reich an “inexperienced woman.” It had the opportunity to hear and observe her during trial, and the record tends to support that conclusion; at least it is not contrary thereto. We find nothing in the record to indicate that Mr. and Mrs. Sayre or Mr. Franks advised the Reichs or either of them, that their loyalty to them was to be divided or lessened in the handling of this transaction. Under the circumstances we have outlined we conclude that those in whom Mr. and Mrs. Reich placed their confidence and had employed in consideration of a fee to represent their interests, took an unfair advantage of Mrs. Reich and foisted upon her and upon Mr. Reich a contract of sale contrary to what they wanted, and contrary to what they were led to believe the contract provided. In doing so, they breached their duty to Mr. and Mrs. Reich, and while doing so they were by their own admissions acting as the undisclosed agents of the Cossairts, who were adversaries in interest to the Reichs.

Specific performance is not a matter of right, but is a remedy applied by courts of equity depending upon the facts of each particular case. The chancellor has judicial discretion, within the established doctrines and principles of equity to award or withhold the remedy. Cummins v. Dixon, Mo., 265 S.W.2d 386, 47 A.L.R.2d 441; Miller v. Coffeen, 365 Mo. 204, 280 S.W.2d 100; Robert Blond Meat Company v. Eisenberg, Mo., 273 S.W.2d 297. This discretion is properly exercised against specific performance when the contract was induced by some sharp practice, misrepresentation or mistake, Landau v. St. Louis Public Service Company, 364 Mo. 1134, 273 S.W.2d 255, 48 A.L.R.2d 1200, or when it is incomplete, unfair, or overreaching, or when there are present elements of mutual mistake in matters of substance, covetous contrivances, fraud, imposition or the like. Miller v. Coffeen, supra. Not all of these conditions exist in this case, but we are convinced that the contract was induced by a misrepresentation made in breach of a confidential relationship, and that as a result the contract is unfair and overreaching. It may be argued that the wrongful conduct was not the act of the appellants, and they should not be punished for the wrongful conduct of others. We do not rule, on the evidence before us, that appellants knowingly participated in the misrepresentation, but the contract they are seeking to enforce is tainted with misrepresentation on the part of persons who by their own admission, and without denial on the part of appellants, were acting as their agents. If appellants have been damaged thereby let them seek their legal remedy against those who have wronged them.

We conclude that in this case, in view of the facts and circumstances we have outlined, the trial court did not abuse its judicial discretion in refusing specific performance. In fact, we are of the opinion that under the circumstances the exercise of sound judicial discretion requires that specific performance be denied, and that the parties should be left to their legal remedies, if any.

The judgment is affirmed.

BARRETT, C., concurs.

PER CURIAM.

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


text:
    In re ESTATE of Mary Penner ADELMAN. William ADELMAN, Appellant, v Josephine ROSENBLUM, Executrix-Respondent.
    No. 49684.
    Supreme Court of Missouri, Division No. 1.
    Sept. 9, 1963
    Robert I. Adelman, Kansas City, for appellant.

      Harold Waxman, Walter A. Raymond, Raymond, West & Cochrane, Kansas City, for respondent.
   COIL, Commissioner.

On June 25, 1960, Mary Penner and William Adelman entered into an antenuptial agreement whereby they provided for the disposition of their respective properties and estates and on August 24, 1960, were married. Mary Penner Adelman died testate on May 27, 1961, and her will was admitted to probate on June 22, 1961. On October 16, 1961, William Adelman, the surviving husband and present appellant, filed his election whereby he renounced the provisions of his late wife’s will and elected to take his legal share in her estate. On November 3, 1961, Josephine Rosen-blum, the duly-appointed executrix of Mrs. Adelman’s estate and present respondent, filed her alternative motion to deny the attempt of William Adelman to take against the will. On December 29, 1961, the Probate Court of Jackson County entered its order to the effect that the purported election of the surviving husband was of no force and effect and his attempt to elect to take a share in the estate of his deceased wife, except as provided by the antenuptial agreement heretofore referred to, was denied. Present appellant appealed that order to the Circuit Court of Jackson County where a summary judgment was entered affirming the order, of the Jackson County Probate Court. William Adelman has appealed from that judgment.

Appellant states in his brief that the “amount in controversy is approximately sixty thousand ($60,000) dollars” and claims jurisdiction is in this court because of the amount in dispute.

An examination of the transcript and supplemental transcript on appeal and of the transcript of the record of the probate court which was certified to the circuit court, shows that there is nothing therein from which the amount in dispute, if any, may be determined. It follows that inasmuch as it does not affirmatively ap--pear from the record in this case that the' amount in dispute, independent of all con--tingencies, exceeds $15,000, this court does not have appellate jurisdiction of this case, State ex rel. State Highway Commission v. Mahon, Mo., 343 S.W.2d 165, 167[1]; and a statement in appellant’s brief that the amount in dispute exceeds $15,000 is insufficient, Missouri Managerial Corp. v. Pasqualino, Mo.App., 323 S.W.2d 244, 247 [1,2], and cases there cited.

No other ground for this court’s jurisdiction is claimed and none appears.

This case should be and it is transferred to the Kansas City Court of Appeals.

HOUSER, C., concurs.

PER CURIAM.

The foregoing opinion by COIL C., is adopted as the opinion of the court. All concur.