text:
    L. B. POWELL et al. v. WILLIAM HUNTER et al.; J. H. POWELL et al., Intervenors, Appellants.
    Division One,
    April 13, 1914.
    CONVEYANCE: Refusal to Pay Purchase Price: Possession: Vendor’s Lien: Acquiring Outstanding Title. However defective the title which the vendee acquired from his vendor, if it is the basis of the vendee’s title and possession, the law will not permit him to retain possession of the lands and refuse to pay the purchase money. On the other hand if said vendee already had a legal title and took possession thereunder and afterwards took a conveyance of whatever title said vendor had, in order to strengthen his own and while asserting his own to be valid, said vendee is not precluded from setting up his previously acquired title as a defense to an action brought by said vendor to enforce a lien for unpaid purchase money.
    Appeal from Butler Circuit Court. — Hon. Jesse C. Sheppard, Judge.
    AeEIKMED.

      C. G. Shepard and Sam< J. Corbett for appellants.
    (1) The title of T. C. Powell not being a perfect paper title, the defendant has the right if he so desires to refuse to accept it, but as a condition precedent to his making this kind of a refusal he must restore to the intervenors the possession he acquired from Canady, through intervenors’ chain of title. Layon v. Chessney, 186 Mo. 540; Pershing v. Canfield, 70 Mo. 141; Harvey v. Morris, 63 Mo. 477; Cartwright v. Culverm, 74 Mo. 182; Hunt v. Marsh, 80 Mo. 398; Key v. Jennings, 66 Mlo. 356; Smith v. Busby, 15 Mo. 388; Mitchell v. McMullen, 59 Mo. 252; Connor v. Eddy, 25' Mo. 72. (2) The defendant is estopped to deny the title through which he obtained possession, even though as against some unknown person the title may be worthless. The common grantor not being the true owner, as between the two we have only to inquire which one has the title of the grantor. Smith v. Lindsey, 89 Mo. 76; Sells v. McAnaw, 138 Mo. 267. (3) Hunter being a subsequent purchaser from Canady, the grantee of Powell, and the lien in favor of Powell being a matter of record, Hunter stands in Canady’s shoes as to this lien. Thompson v. Henry, 85 Mo. 455. (4) It is true the evidence of title is very unsatisfactory, and did we have to rely on the legal title of Powell, then we could understand why the trial court found in favor of the defendant; but to let the defendant retain possession of the land under the Powell title, and permit him to resist the payment of the purchase money on the ground of P'owell having no-right is in the teeth of every holding by this court on that question. Mill. Co. v. Sugg, 206 Mo. 148; Pratt v. Canfield, 67 Mo. 50.

      Arthur L. Oliver for respondent.
    (1) This court in the Hunter-Powell decision, 204 Mo. 403, held that T. C. Powell was “without shade or shadow of title” to the lands he undertook to convey Cannady. The evidence in this case shows that not a scratch of pen or quill nor one single act of possession or otherwise, ever bore testimony of his title or claim of title; no claim or proof of title was made by intervenors in this case, except an unsupported narrative of antebellum incidents contained in their bill, and which is no evidence in this case. Conceding then, that Hunter had no other title except the Cannady title, will equity, conscience and justice enforce the vendor’s lien by specific performance? Would it have done so against Cannady by requiring him to pay his money for a worthless title, and to say the very least,a doubtful title, under his contract calling for a “deed in fee with general warranty?” Luckett v. Williamson, 31 Mo. 54; Wellman v. Dismukes, 42 Mo. 101; Birge v. Bock, 24 Mo. App. 336; Henyford v. Turner, 67 Mo. 296; Pratt v. Canfield, 67 Mo. 55'; Townshend v. Goodfellow, 3 L. R. A. 739; Morgan v. Morgan, 15 U. S. 2901; Bank v. Hagener, 26 U. S. 456; Hepburn V. Auld, 9 U. S. 262; Murray v. Ellis, 112 Pa. 485; People v. Bldg. Co., 92 N. Y. 105 ; Church v. Thompson, 108 N. Y. 618 ; Hymer v. Branch, 6 Mo. App. 515; Veth v. Gierth, 92 Mo. 97; Paunroy v. Fullerton, 131 Mo. 581. Respondent Hunter neither acquired title nor possession under Cannady, and therefore is not bound by any claim, if any, intervenors may have had against Cannady. When respondent Hunter purchased from Cannady he paid him for 160 acres in section one, the sum! of five dollars per acre, aggregating $800. Not one witness by inference or otherwise contradicts this statement of Hunter as to his transaction with Cannady. Did Cannady or Powell, or these intervenors regard the title or possession of Cannady of any value? Cannady up to a short while before his death was telling Powell he would pay him “as soon as he (Powell) made him a deed to the land.” Cannady regarded it worthless. Powell assigned to these intervenors his vendor’s lien first without any consideration, and lastly for speculative collection, and from 1896 until 1907 — eleven long years — they or their assignor made no claim for either pay or possession. Is it equitable now after Hunter has fenced, improved and cleared up this 320 acres, to make him pay seventeen thousand dollars for a “blue sky” title, to this tract when 1920 acres covered by Powell’s lien sold for only $1736 or less than one dollar per acre? (2) Respondent Hunter having acquired the true legal title had the right to buy, for the sake of peace, Cannady’s claim, or any other, without rendering himself liable for any supposed equity existing against Cannady. The adjudications in this State hold that the vendee may buy up an antagonistic title to that of the vendor, and set up the-title so bought to defeat that of the vendor, and so if Hunter could have acquired an outstanding title and asserted it against Cannady, he had the right to acquire such title, and assert it against the alleged grantors of Cannady. Huth v. Carondelet Ey., 56 Mo. 262; Funkhauser v. Lay, 78 Mo. 465; Mocklot v. Dubereil, 9 Mo. 477.
    STATEMENT.
    This case was heard on a former appeal (Powell v. Hunter, 204 Mo. 393), when it was reversed and remanded for the reason that the plaintiffs on the former appeal sued to enforce a vendor’s lien for unpaid purchase money, without offering in the bill or on the trial to execute a deed to the land. In that case a favorable judgment obtained by the plaintiffs in the court below against several defendants, was partly executed and enforced pending the appeal, for the reason that only one of the defendants prosecuted his appeal, from the judgment below to this court.
    After the remand of that case, two other sons of the assignor of the vendor’s lien brought an action against the plaintiffs in the original case, alleging among other things, that the assignment of the vendor’s lien through which the parties sued claimed, was fraudulently obtained and that they held a prior valid assignment thereof, from their father. This action was tried below and resulted in a judgment in favor of the plaintiffs and a substitution of them to the rights of the former plaintiffs. An appeal was taken and that judgment was affirmed hy this court. [Powell v. Powell, 217 Mo. 571.]
    Thereupon, the plaintiffs in that suit intervened in the present action which was then pending in the circuit court on the remand by this court on the first appeal, alleging in their intervention that they were entitled to the benefit of the vendor’s lien. Upon the trial in the court below, judgment was rendered against the intervenors, from which judgment they have prosecuted the present appeal.
    The facts in this case have been stated in two opinions of this court heretofore delivered and may be summarized, to-wit: On the sixth day of May, 1896, an instrument in writing was executed between Thomas C. Powell and James W. Cannady of New Madrid, Missouri, for the conveyance of a half section of land in section 13, township 17, range 12, and other lands lying in Pemiscot county, Missouri, for the price of five dollars per acre, with a proviso that said Cannady should pay $500 within ten days and the remainder in equal annual instalments with eight per cent, interest, and that he should be credited with the money received by sale of shipments of lumber on the purchase price of the land.
    Said instrument further provided for the retention of a lien for the unpaid purchase money, and that the wife of the grantor should join in the conveyance of the land after the cash payment. This contract was acknowledged by T. C. Powell on the sixth day of May, 1896, and by his wife, Anne Powell, on the 24th day of June, 1896, and was duly recorded in Pemiscot County on the 25th day of June, 1896.
    It was ruled on the former appeal that this contract was an executory agreement to sell and not an executed deed. The intervenors in their pleading below tender the execution of a deed in case of a decree in their favor.
    The testimony adduced on the trial by defendant Hunter tended to prove that the title to the half, section of land in controversy was patented by Pemiscot county and through mesne conveyances from the patentee, it was vested in one A. A. B. S. "West by a deed from Thomas P. Cooper dated March 9, 1868, and recorded January 25', 1869. Defendant Hunter introduced two quitclaim deeds from the assignees of the heirs of A. A. B. S. West.

      The testimony of the brother of this West stated on cross-examination that he was known as A. B. S. West and that he had never known that there were two A’s in the initials of his name.
    There was testimony tending, to show that the said West was a school teacher as well as a surveyor, in Obion county, Tennessee, which lies across the river from Pemiscot county, Missouri, and he seems to have been also in Pemiscot county, Missouri. ■ In the dealings between the West heirs and the parties to whom they quitclaimed, their brother was described as A. A. B. S. West and his name is so written in the acknowledgments thereto.
    The nephew of the said W. John Sellers, testified when asked about the double “A” appearing in the initial of his uncle’s name, that when witness was a boy “some times they called him Andy or A. A. or A. B., it was either A. A. or A. B., I don’t remember whether both A’s was in there or not.” But this testimony was properly excluded because the deposition containing it, was not signed by the witness.
    The intervenors claimed title by a patent from the county to R. R. Turner; that said Turner by oversight or mistake conveyed to J. H. Powell, Sr., instead of his brother T. C. Powell, Sr., who furnished consideration for the deed; that J. H. Powell, Sr., trustee of a resulting trust for his brother, T. C. Powell, Sr., conveyed the title to T. P. Cooper in exchange for Tennessee lands; that Cooper, for some reason, conveyed. the land in question to A. A. B. S. West; that when Cooper was called to make good his warranty for the Tennessee lands he delivered back to his grantor, T. C. Powell, Sr., possession of the Missouri lands and all title papers which he had received from him; that T. C. Powell, Sr., and his wife afterwards entered into the above described contract. .
    The intervenors also gave evidence tending to prove that defendant Hunter purchased the land in controversy, together with other land, from. J. W. Cannady, who at the time of snch sale was in possession thereof by his tenants who were engaged in cutting timber for a saw mill and that after the purchase by Hunter from Cooper these tónants became the tenants of Hunter.
    On the other hand defendant Hunter gave evidence, in substance, that he made the purchase from Cannady for the reason he found Cannady had some claim to some land adjoining the section in which the land in dispute was situated; that in order to “buy his peace” and settle any controversy as to the land in dispute, he included that in the same purchase, paying a lump sum; that before making this purchase from Cannady he had acquired the West title and under it he had gone on the land and deadened the timber, although.he knew that there were two men in shacks on the premises at the time who were tenants of Cannady; that Hunter continued in possession of the land so taken by him, until he sold it. On that point the exact language of Hunter is, to-wit: “I include this west half of thirteen in this conveyance merely for the sake of peace. I was in possession at that time under a deed from West; yes, sir. And I never given up or changed that possession; no, sir. Never interrupted. that possession until I sold it. Yes, sir; the consideration in the deed is eight hundred dollars, for all the lands embraced therein which is something more than four hundred acres. That was the real consideration- — I gave him that and no more. ’ ’ The testimony of this witness was not materially changed on the cross-examination.
    At the conclusion of the trial the court rendered a decree in favor of the defendant Hunter and against the intervenors who have prosecuted the present appeal.
   OPINION.

BOND, J.

(After stating the facts as above).-There is only one question in this case, which is, what was the nature of the purchase by Plunter from Cannady of the land in dispute. If that transaction was the basis of Hunter’s title to and possession of the lands, then the law will not permit him to retain possession of the lands and refuse to pay the purchase money, however defective the title may be which he acquired from Cannady, who was the grantee of the assignor of intervenors. [Harvey v. Morris, 63 Mo. l. c. 477; Lanyon v. Chesney, 186 Mo. l. c. 555; Smith v. Lindsey, 89 Mo. 76.]

On the other hand if Hunter had the legal title to the land and took possession thereof under that title and afterwards took a conveyance of whatever title Cannady had in order to strengthen his own and while asserting his own to be the valid title; then he is not precluded from setting up that title as a defense to an action brought by the grantor, Cannady, or his representatives, to enforce a lien for unpaid purchase-money under a contract between Cannady and his grantor. [Funkhouser v. Lay, 78 Mo. l. c. 465; Huth v. Carondelet Marine Ry. & Dock Co., 56 Mo. l. c. 206; Macklot v. Dubreuil, 9 Mo. 477.]

We are not prepared to say that intervenors have shown by the clear preponderance of the testimony that the purchase of defendant from Cannady was for the purpose of acquiring a valid title emanating from their father. About eleven years intervened between the contract between him and Cannady before the assertion of that title by anyone. The records of Pemiscot county did not show a clear deraignment of title from it to the father of intervenors. The record title from the county was apparently in A. A. B. S. West and while there is lack of positive evidence that this name had two A’s in the initials, yet he was shown to have been in the vicinity of the land in the prosecution of his business of surveying and the fair effect of the evidence to our minds, is that he was á real person and that the quitclaim from his heirs carried the title which was transferred to him from Pemiscot county. Another ■circumstance, not without force, as bearing on the conflicting evidence relating to the title of intervenors’ ..grantor, is the clear testimony emanating from the representative of Cannady, and his own declaration when he was alive, that the only reason he had not paid the full price for the land was that his grantor had not made him a title.

The burden of the proof in this case rests upon the intervenors. We are of the opinion that they have not sustained it by the clear preponderance of the testimony which is essential to a rendition of a decree in their favor.

II.

The contention of the appellants as to the character of the contract between Powell, their father, and Cannady, was resolved against them in the former appeal where, it was held that it was an unexecuted agreement and not a deed in praesenti.

It follows that the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: GRAYES, J.

license: Public Domain

text:
    ST. LOUIS ELECTRIC TERMINAL RAILWAY COMPANY, Appellant, v. JAMES D. MacADARAS et al., Appellants.
    Division One,
    April 13, 1914.
    1. CONDEMNATION: Two Stages. Condemnation, proceedings have two stages or hearings: one, upon the sufficiency of the petition and the right to condemn; the other, upon the compensation to he paid for the property tahen or damaged.

      2. -: Right to Condemn: Interurban Railway. Upon the authority of State ex rel. v. Williams, 227 Mo. 1. c. 47, it is held that the St. Louis Electric Terminal. Railway Company has the right to condemn property for its right of way and depot purposes, whether it he a railroad company under the steam railroad statutes, or an interurban railway company, for if the latter it was by Laws 1907, p. 174, given' the same rights and power as steam railroads in the matter of condemning property for railroad purposes.
    3. -:--: Abandonment of Charter Route: As Affected by Prohibition Writ Upholding Right to Condemn. The refusal of a writ of prohibition applied for by defendants, directed to the trial court and refused on the ground that the plaintiff as an interurban railway had the statutory power to condemn property for depot purposes, does not' preclude the defendants from urging the defense of abandonment pleaded in their answer, to-wit, that the plaintiff had abandoned a material portion of the route of its railway, as described in its charter, and therefore was without authority of law to condemn any property for any purpose.
    4. -: Measure of Damages: Value Enhanced by Plaintiff's Near-by Depot. When the whole property is being taken the jury should not be authorized to consider either enhancements or depreciation in the value of the property brought about by the construction of other improvements ,by plaintiff on near-by property. Where the building of railway tracks, switches and passenger and freight depots in a city is a part and parcel of one unified scheme of continuous construction, and the freight depot is built before the time comes for the jury to assess defendants’ damages caused by the taking of all their near-by property for passenger-depot purposes, the jury should not be instructed to take into consideration any enhancement or depreciation in the value of defendants’ property caused by the location and construction of said freight depot.
    5. -: -: -: Evidence: Contract of Attempted Purchase. A contract of purchase of the property sought to be condemned for passenger purposes, made by defendants’ agent and disavowed by them, is not competent evidence on the question of value, but is compétent as tending to show that the whole improvement was a part of one general and continuous plan of construction and that such plan included the acquirement of the property in question, and is material if the defendants claim that the building "of the passenger and freight depots were independent acts and that they are therefore entitled to any enhancement in the value of their property caused by the construction of the freight depot in the vicinity.
    6. -: -: Value of Other Property as Standard. Evidence of the value of other property on the same street, dissimilar to the property in question, is incompetent as a standard of value, in the condemnation proceeding.
    Appeal from St. Louis City Circuit Court. — How. George H. Shields, Judge.
    Reversed and remanded {with' directions)

      John S. Leahy aud Block é Sullivan for defendants.
    (1) The plaintiff is an interurban electric railroad within the meaning of Sec. 3228, R. S. 1909. State ex reí. v. Williams, 227 Mo. 36. (2) The proceeding seeks the condemnation of the property for depot purposes, within the meaning of Secs. 3073 and 2369, R. S. 1909. (3^) A grant of the State’s power of eminent domain is strictly construed, and unless the power sought to be exercised has been expressly conferred, it does not exist. Kansas City v. Oil- Co., 140 Mo. 64'; Schmidt v. Duisnore, 42 Mo. 234; St. Louis Co. v. Railroad, 138 Mo. 598; Southwest Co. v. Scheurich, 174 Mo. 241; 15 Cyc. 567; 1 Lewis on Eminent Domain, sees. 388, 371. (4) The powers of railroad companies to condemn property for construction of the road, on the one hand, and for depot grounds on the other, have for many years been separately dealt with by the General Assembly. R. S. 1909, secs. 3049', 3073, 2369, 3076. (5) The Act of 1907 (R. S. 1909, sec. 3228) confers upon interurban electric lines the power to condemn lands for right of way only, and such a corporation is without power to condemn lands for depot purposes, (a) The General Assembly, familiar with the various- rights of eminent domain conferred upon railroad companies, saw fit to confer only one of these powers on electric interurban lines. Statutes, supra; R. S. 1909', sec. 3228. (b) This act is a special act defining the powers of eminent domain to be exercised by such corporations, and is controlling in that field. State v. De Bar, 58 Mo., 308; State v. Green, 87 Mo. 587; Ruschenberg v. Southern Co., 161 Mo. 85; State ex inf. v. Dabbs, 182 Mo. 366; State ex rel. v. Foster, 187 Mo. 610; Gikeson v. Railroad, 222 Mo. 204; Joffee ex parte, 46 Mo. App .367; 1 Sutherland on Statutory Construction (2 Ed.), sec. 275, p. 532; 2 Id., sec. 491, p. 919. (c) The expression “right-of-way”, in the act, does not include “depot purposes.” Railroad v. People, 195 111. 190; Railroad v. Gooding, 6 Idaho, 776; Joy v. St. Louis, 138 U. S. 44; Railroad v. Ball, 108 Ky. 256; Keener v. Railway, 31 Fed. 128; Postal Co. v. Southern Co., 90 Fed. 32; Acord v. Railroad, 113 Mo. App. 99; Plunkett v. Railroad, 79 Wis. 225. (d) The expression of the one power in the Act of 1907 is the exclusion of others. 2 Sutherland on Statutory Construction, sec. 493; Maguire v. Savings Assn., 62 Mo. 346; State ex rel. v. Laughlin, 73 Mo. 448; State ex rel. v. Woodson, 128 Mo. 514; State ex rel. v. Stobie, 194 Mo. 57; State ex rel. v. Withrow, 133 Mo. 513. (e) The General Assembly of 1911 refused to amend the act, as requested by plaintiff’s counsel, so as to enlarge the powers thereby conferred to equal those conferred by the general statutes on railroad companies in general. House Bill No. 1034, General Assembly of 1911. (6) The plaintiff has so far abandoned its charter powers and obligations as to be without the power of eminent domain for any purpose. R. S. 1909, secs. 3049, 3074; Laws 1877, p. 187, sec. 4; Railroad v. Davis, 197 Mo. 674; R. S. 1900', sec. 3066; 2 Lewis on Eminent Domain, secs. 505, 402; Doughty v. Railroad, 7 N. J. Eq. 51; United Co. v. National Co., 52 N. J. L. 97.

      Edward C.. Grow for plaintiff.
    (1) The plaintiff is a railroad company organized under the same law as roads operated by steam and has “all the power possessed by steam railroads to condemn property for its use. ’ ’ State ex rel. v. Williams, 227 Mo. 47. (2) The proceedings herein seek to condemn the property for right of way and for depot purposes and for receiving and discharging passengers and freight and express in St. Louis, Missouri. And this court held in the G-reffet case that this plaintiff had the right to condemn property for right of way and “to be used to erect depots and places to receive and discharge freight and passengers and express in the City of St. Louis. ’ ’ State ex rel. v. Williams, 227 Mo. 44. (3) The amendment of 1907 which provides “that any corporation now existing, or that may hereafter be incorporated, for the purpose of constructing, building, owning, operating and maintaining an interurban electric railroad, shall have and possess the same right and be subject to the same liabilities and shall be governed by the same powers, laws, limitations, restrictions and proceedings now governing railroads in article 2, chapter 12, R. S. 1899, for the condemnation of lands for right of way, and the fencing thereof,” gave the power to electric railroads to condemn property not alone for right of way but for all railroad uses, including ground to be used for a depot. State ex rel. v. Williams, 227 Mo. 47. . (4) In Missouri a railroad company organized under the law for organizing steam or commercial railroads may condemn land for depot. Muder v. Railroad Co., 49 Mo. 165. Sections 3049 and 2369 and 3228 and 3073 relating to the condemnation of land by a steam road and electric road for right of way, side-tracks and switches and depots are not independent statutes and unrelated, but they are interdependent and related and are in pari materia with each other. State ex rel. v. Williams, 227 Mo. 47. (5) There was no abandonment of plaintiff’s charter route. Mere nonuser will not constitute an abandonment. The intent to abandon must be shown by unequivocal and decisive acts. Scarritt v. Railroad, 148 Mo. 676; Investment Co. v. Railroad, 108 Mo. 50; 2 Lewis on Eminent Domain (3 Ed.), sec. 842, p. 1502; Railroad v. Railroad, 129 Mo. 62; Railroad v. Bradbury, 106 Mo. App. 450; 33 Cyc. 222. (6) The contention of ■ defendants ’ counsel that plaintiff abandoned its right to build a railroad over its chartered route beyond Twelfth street and Lucas avenue constitutes a collateral attack on plaintiff’s charter and this cannot be done in a condemnation proceeding. Railroad v. Railroad, 161 Mo. 288; State ex rel. v. Williams, 227 Mo. 49. (7) Instruction 11, given for defendant-appellant is erroneous for the reason that it is a comment on the evidence and singles out and gives undue prominence to the construction of the freight depot or station of appellant in proximity to the property of defendants and authorized the jury to take into consideration any advancement of the value of defendants’ property caused thereby in estimating the .fair market valué of their property. Railroad v. Stock Yards Co., 120 Mo. 541; State v. Fairbanks, 121 Mo. 148; Liese v. Meyer, 143 Mo. 562; Gharst v. Transit Co., 115 Mo. 412; Gibler v: Railroad, 129 Mo. App 102; Benjamin v. Railroad, 50 Mo. App., 602; Spdlm v. Railroad, 87 Mo. 411. (8) Building of road and freight and passenger station constituted one. improvement arid value of condemned property should have been fixed independent of effect on value of the building of the road and the erection of. the freight and passenger depots. “The taking was an inseparable part of the improvement out of which the expected increase in value was to come and on account of which there was a general increase in price of real estate in.the vicinity.” Kerr v. Park Commrs., 117 U. S. 379; Mowry v. Boston, 173 Mass. 425; Ry. & Nav. Co. v. Realty Co., 115 La. 328; 2 Lewis’ Eminent Domain, 745; Sargeant v.Merrimac, 196 Mass. 171,11 L. R. A. (N. S.) 1002; Benton v. Brookline, 151 Mass. 250'; May v. Boston, 158 Mass. 121; Bowdlich v. Boston, 164 Mass. 107; Shoemaker v. United States, 147 U. S. 282. (9) The court committed prejudicial error against the plaintiff when it admitted the testimony of defendants’ witnesses as to the value of property on "Washington avenue as a standard by which to fix the value of the property of the defendants on Lucas avenue, because the two classes of property were of entirely dissimilar kind. 2 Lewis on Eminent Domain (3 Ed.), sec. 662, p. 1138. (10) The court committed prejudicial and reversible error against the plaintiff when it refused to admit in evidence the agreement signed by R. D. Smith for plaintiff and John S. Leahy for defendants for the purpose of showing that the defendants had offered to take a given sum of money for the property sought to be condemned. Springfield v. Smook, 68 Mo. 394; Webster v. Railroad, 116 Mo. 1201. (11) The bridge, the road and- the freight and the passenger depots were all located and built as one unit of construction and carried out simultaneously as part of one general plan of improvement. Therefore the general rule applies that no increase in value of land caused by the location of a railroad and depots can be considered in condemnation proceedings in fixing the value of the property taken. Therefore instruction 9 given by the court for the defendants was erroneous in that it only eliminated from the consideration of the jury in fixing the value of the defendants ’ property any enhanced value caused by the erection of the passenger station of the plaintiff. 158 Mass. 29; Railroad v. Stock Yards, 120 Mo. 553; Railroad v. Christal, 25 Mo. .546; 2 Lewis on Eminent Domain (3 Ed.), sec. 745.

      Bloch & Sullivan in reply for defendants.
    (1) On exceptions to the report of commissioners in cases of this character, the jury are to value the property as of the date the commissioners reported, where, as here, the condemnor pays into court the award of the commissioners. Railroad v. Powler, 113 Mo. 472; In re Forsythe Boulevard, 127 Mo. 421; Railroad v. Knapp-Stout & Co., 169 Mo. 409; Railroad v. Stewart, 201 Mo. 497; Railroad v. Town Site Co., 103 Mo. 460. (2) The defendants were entitled to the enhanced value of the property occasioned by improvements made by the plaintiff in the vicinity, and Instruction 11 to that effect was proper. Stafford v. Providence, 10 R. I. 567; In re Commissioners, 19 R. I. 382; El Paso v. Coffin, 88 S. W. (Tex. Civ. App.) 502; Sanitary Dist. v. Loughran, 160 111. 370; Terminal Co. v. Thrower, 71 S. E. (Ga.) 908'; Sunday v. Railroad, 57 So. (Fla.) 351; Bridge Co. v. Scott, 147 S. W. (Ark.) 440; 2 Lewis on Eminent Domain (3 Ed.), sec. 695, 745, 747, 757; 15 Cyc. 687; Railroad v. Town Site Co., 103 Mo. 462. (3) Instruction 11 must be read as a part of the whole charge. State v. Weisman, 238 Mo. 558; Montgomery v. Railroad, 181 Mo. 513; Gibler v. Railroad, 203 Mo. 222. (4) This instruction did not .single out any particular fact to the jury. Railroad v. Waldo, 70 Mo. 631; Railroad v. McGrew, 104 Mo. 292; Railroad v. Clark, 121 Mo. 187; Railroad v. George, 145 Mo. 42; Railroad v. Shoemaker, 160 Mo. 432; Railroad v. Mendosa, 193 Mo. 527; Railroad v. Brick Co'., 198 Mo. 710. (5) The course of the trial made the instruction proper. Neff v. Cameron, 213 M!o. 363. (6) It is not ■error to refuse instructions covered by those given. State v. Gow, 235 Mo. 328; Ellis v. Railroad, 234 Mo. 681; Cossitt ,v. Railroad, 224 Mo. 113; Richardson v. Railroad, 223 Mo. 342. (7) Evidence as to the price paid by plaintiff for other property in the block was admissible. Railroad v. Heinderceich, 234 111. 241; Pres-bey v. Railroad, 103 Mass. 9; O’Malley v. Commonwealth, 182 Mass. .198; Railroad v. Chamblin, 108 Ya. 42; Water Works v. San Francisco, 192 Fed. 164. (8) Plaintiff cannot shift positions as to the reason for offering evidence. Edmonston v. Jones, 96 Mo. App. 92; Meddis v. Kenney,-176 Mo. 210. (9) The alleged contract was not the contract of the defendants. R. S. 1909, sec. 2783; Johnson v. Fecht, 185' Mo. 343:.
   GRAYES, J.

Barring a few sentences of argumentative matter counsel for the defendants have made a very concise statement of the case, and we adopt it, with these sentences cut out. In fact we could take the statement of counsel upon either side of the controversy and have a fair general outline of the case, but that made for the defendants is a little more compact and concise and we take that. It reads:

‘ ‘ This is a proceeding, instituted December 1,1910, by the plaintiff in the circuit court of the city of St. Louis, to condemn, for the use of the plaintiff for depot purposes, certain property situated in City Block 841-of the city of St. Louis.,
“The petition was in the usual form and need not be particularly noticed at this point. The defendants are husband and. wife, and the title to the premises is in the .wife. The city block in which the premises are situated lies just a block north and east of Twelfth and Washington avenue, in the City of St. Louis, and is bounded on the east by Twelfth street, on the west by High street (which is really Twelfth street at that-point), on the north by Linden street, and on the south by Lucas avenue, which is the nest street north of Washington .avenue. The three pieces of property sought to be condemned comprise a lot at the northeast corner of. the block, fronting seventy-one feet and some inches, on Twelfth street, by a depth westwardly on Linden street of one hundred and seven feet and. some inches; another lot at the southwest corner of the-block fronting seventy-one feet and some inches on High street, by a depth on Lncas avenue to the east of sixty feet and some inches; and a third lying in the eastern center of the block, fronting eighteen feet on Twelfth street, by a depth of seventy-eight feet toward the west.
, ■ “The defendants answered, setting up two affirmative defenses. First, that the railroad, for the use of •which .the plaintiff sought to condemn the property, was an interurban electric railroad within the meaning of section 3228, Eevised Statutes 1909, and that therefore the plaintiff was without authority of law to condemn said property to the uses mentioned in the petition; and, second, that the plaintiff had abandoned a .material portion of the route of its railroad, as described in its charter, and was therefore without authority of law to condemn any property to its use for any purpose.
“The affirmative averments of this answer were pnt in issue by a reply filed by the plaintiff.
“Upon the issues thus made a trial was had to ■the court March 27, 1911, resulting in a judgment finding the issues submitted by the answer in favor of the plaintiff, awarding the plaintiff the right to condemn the property and appointing commissioners to assess the damages. ' ' - ,
“Within four days after that judgment was entered the defendants filed their motion for a new trial and in arrest of judgment. These motions the court overruled and the defendants excepted, and, having obtained time within which to file a bill of exceptions, filed the same within the time allowed, with all formalities duly complied with.
“In due time, and under date of June 6, 1911, the commissioners appointed by the court reported that they valued the property sought to be condemned at $164,300. Thereupon both parties excepted to this report, the exceptions of the defendants being filed June 10, 1911. In these exceptions the defendants renewed their objections to the proceeding and to the right to condemn the property, on the same grounds as were set forth in their answer, supra; and also complained that the damages allowed by the commissioners were inadequate. The plaintiff likewise filed exceptions to this report, complaining of the manner in which the commissioners had arrived at their conclusion as ■to the value of the property, and of the valuation placed ■thereon. Each side asked a jury trial as to the valué of the property; and, in response to that request, such was had, beginning December 11,1911.
“At the opening of this trial the defendants objected to the introduction of any testimony, and to the trial of the exceptions with respect to1 the value of the property, on the ground that the plaintiff was shown to have no right to condemn the property for the reasons set forth in the answer above referred to; the court'overruled the objection, and defendants excepted, and, at the conclusion of the trial, filed a motion for a new trial and in arrest of judgment assigning the same reasons as those set forth in the answer above referred to; and, on the overruling of these motions, duly excepted and took another bill of exceptions embodying the rulings on that subject.
“At the trial to'the jury on the question of value, each of the parties called numerous expert witnesses, and their testimony with respect to the proper value of the premises on the 8th day of June, 1911, when the commissioners filed their report, took a. wide range. The minimum valuation assigned by any witness was $86,000'; the maximum nearly $300,000'. The jury, by their verdict, assessed the value of the premises at an aggregate of $175,850, and the court entered judgment accordingly. After all due formalities, both parties appealed. The defendants here contend that under the evidence ,in the record the affirmative defenses in the answer ought to have prevailed, to-wit, that the railroad which the plaintiff owned and operated, and to the nse of which it sought to condemn this property, was, and is, an interurban electric railroad within the meaning of section 3228, Revised Statutes 1909, and hence the plaintiff was without authority of law to condemn property to its use for depot purposes, as it sought to do in this proceeding; and, secondly, that the plaintiff had abandoned a material portion of the route for its road designated in its charter, and was therefore without authority to exercise the power of eminent domain for any purpose. The plaintiff* appealing, complains of rulings of the trial judge on the admission and exclusion of testimony, and on instructions, during the progress of the hearing-before the jury on the question of value.
“The parties have left the field of their controversy long- enough to unite in printing the entire record ■ applicable to both appeals, and have brought it here in that form, certified by the clerk, with a separate publication comprising copies of the blue prints, maps, etc., which were introduced in evidence and are called for by the various bills of exceptions contained in the record.” To this it is added by counsel for the plaintiff that, upon the return of the award, the money .was promptly paid into court for the defendants, and again upon the return of the verdict by the jury, the additional sum awarded by the jury was likewise paid into court, and thereupon the plaintiff took possession of the property for the uses stated in the petition. Matters of detail will be left to the opinion.

I. As said in the case of Chicago Great Western Railroad Company v. Kemper, 256 Mo. 279, condemnation proceedings have two stages or hearings, i. e., one upon the sufficiency Potion and the right to condemn, and one upon the compensation to be paid for the property taken or damaged. Defendants in this case direct their attack here more particularly to the result of the first judgment in the case, i. e., the judgment hy which it was determined that the plaintiff had the right to condemn defendant’s property. Plaintiff hy its' appeal attacks the latter judgment as to the compensation allowed hy the jury. The contention of the defendants is one of easy solution. The right of this plaintiff to condemn property for right of way and other railroad purposes has been before us twice. Julius E. Greffet and Rosalie Greff et, property-owners in the city of St. Louis, along the identical line here involved, sought to prohibit Judge Williams, and the three commissioners which he had appointed, from further proceeding in the condemnation proceeding brought by- this same plaintiff. This plaintiff was made a party respondent in that suit. In that case we held that the plaintiff had the right to condemn property for railroad purposes, and with the reasoning of that pase, .we are satisfied. [State ex rel. v. Williams, 227 Mo. l. c. 47.]

Not only so, but in this identical proceeding the two MasAdarases, the defendants here, likewise filed their application in this court for a writ of prohibition against Judge Shields who tried the instant proceeding. In that petition they urged’ the same matter that they urge now. Therein, they said:

“And the petitioners say that said railway company is not entitled to condemn their said property-to its such use because (1) the said railway company has abandoned the route for its road designated in its articles of incorporation, and is therefore without the power of eminent domain; and (2) the said railroad, to the use of which said property is sought to be condemned, is an interurban electric railroad within the meaning of section 3228, Revised Statutes 19091, and lands may not be condemned to its use for depot purposes ; and that the said respondent, Honorable George H. Shields, as judge of the circuit court for the eighth judicial circuit, presiding in Division No. 4 of the circuit court of the city of St. Louis, is, for the same reasons, without jurisdiction or authority of law to condemn said lands of the said petitioners to such use of said railway company. ”

Vide files of record in the office of the clerk of this court. This application we denied on April 11, 1911, and thereafter Judge Shields proceeded with the case to the judgment now attacked .on. this appeal. If the plaintiff is a railroad-company under the steam railroad act there can be no question of its right to condemn property for its right of way and depot purposes. If it is an interurban railway company, as defendants contend, then by the Act of 1907 (Laws 1907, p. 174) it was given the same rights and power as steam railroads in the matter of condemning property for railroad purposes. [State ex rel. v. Williams, supra.]

So that the right of this plaintiff to condémn property for the purposes stated-in its petition in this case has been practically - twice passed upon by this court — and we shall not open up the question now. The refusing of the writ of prohibition in the matter mentioned, supra, however, did not preclude the defendants from urging the question of abandonment pleaded in their answer. That was a matter of fact to be thrashed out by the trial judge.' Under the evidence, Judge Shields, in an exhaustive and elaborate opinion (found in the files, of the case of State ex rel. MacAdaras et al. v. Shields, No. 11947) held that the evidence totally failed to show abandonment. We have examined this evidence and are satisfied with the ruling nisi thereon.

Under the evidence and the law that judgment finding that the plaintiff was entitled to condemn and take the property in dispute should be affirmed.

II. Plaintiff’s appeal is directed to the trial of the issue as to damages. In this relation it complains of instructions given and refused, as well as the admission and rejection of evidence. It first challenges instruction numbered 11, given by the court, which instruction thus reads:

“If the jury find and believe from the evidence that the plaintiff had located its road in St. Louis and constructed a freight depot or station in proximity to the property of the defendants before it sought to condemn the property in controversy, and that this location and construction had enhanced the value of the defendants’ property, you should take that enhancement into consideration in fixing the fair market value of .the defendants ’ property at the time the same was taken, to-wit, June 8, 1911.”

To gather the force of plaintiff’s objection to this instruction a few pertinent facts should be stated. Plaintiff was building its line from a bridge across the Mississippi river out into the city. It was a single contemplated scheme and plan for a railroad and necessary freight and passenger depots. The land in dispute was sought for its tracks and passenger depot. Prior to the date plaintiff paid the commissioners’ award of damages into court, the plaintiff had located and built its f eight depot in the vicinity of the property in dispute upon property it had acquired for that purpose. Plaintiff contends that as the building of the railroad and necessary freight and passenger depot for use thereon, was all one plan and one work, the defendants were not entitled to have the jury consider the enhanced value, if any, which was given to the property, by reason of the doing of a part of the work contemplated by the plan, i.e.the building of the freight depot, but that the value should be ascertained without the consideration of that matter. The plaintiff took all of the three lots, so that the question of damages is somewhat simplified. Counsel for defendants thus state the situation:

“But in this case the question of the amount to. he recovered was entirely uncomplicated by any consideration of consequential damages, or special benefits to property not taken, such as is usually met with in cases of this character; because, forsooth, the whole of each property was sought to be appropriated. ’ ’

It being true, as this record shows, that the building of the railroad and the building of a freight depot and a passenger depot were parts and parcels of one single continuous and simultaneous public improvement, we are impressed with the view that this instruction is not supported by the weight of authority, and certainly not by the reason of the thing. If, when property is taken in boto, as here, it be the rule that the owner can have considered as an element of his damages the enhanced value of the property occasioned by a partial construction of the railroad, and its incidents (such as depots, switches, etc.) then the converse of the proposition should likewise be true, i. e., that if a partial construction of the contemplated road and its incidents, above named, had depreciated the property sought to be taken, then the railroad should have the benefit of such depreciation, when it actually came to the taking of the property. No court would stand for this latter rule, and yet it is the very converse of the one sought to be enforced here. The proper rule, when the whole property is being taken, is not to allow the jury to consider either enhancements or depreciation brought about by the construction of the improvement for which the property is being taken. In other words, the value should be determined independent of the proposed improvement. If the anticipated and proposed improvement had been -completed, and the value of the property had been enhanced thereby, and afterward it was sought to condemn the property for additional improvements, as the building of passenger depot, not a part of the original improvement, then we would have a very different- question. But in this case, we have the building of railroad tracks, switches, depots (freight and passenger) as part and parcel of one continuous and simultaneous improvement, and to say that when (under the one general plan and scope of the improvement) the builder got the road built to a block where it had located a freight depot, and then built that depot, the owner in the next block is to be allowed to enhance the value of his property (by this partial construction of the proposed work) before the condemner had had time to get his block (although on and along the profile map of the road), would be to allow enhanced values upon a very shadowy ground. And as suggested above, if such partial construction of the contemplated whole did in fact enhance the value, and the landowner at the time of the actual taking is entitled to such enhancement, then the other and opposite rule must be true, i. e., that if such partial construction of the whole contemplated improvement decreased the value of the land before the company actually took it, then the decrease should be considered in assessing the damages. I do not agree to either of these two' doctrines, and hence say there was error in giving instruction number 11, supra. There are cases which squint at the rule announced in the instruction, but reason is not with them. These cases will be found collated in a note to the text of 2 Lewis’s Eminent Domain (3- Ed.), sec. 745. That section reads:

“Whatever the time fixed upon with reference to which the compensation shall be estimated, the owner is entitled to the actual value of the land at that time, even though it may have been enhanced by reason of the projected improvement for which it is taken. It is said this is not really making the condemning party pay for an enhancement caused by its own work, as such enhancement does not come from the mere projection of the work, but from the existence of circumstances which create a demand for the work, and render it probable that snob a work will sooner or later be built. In so far as tbe enhancement is due to such circumstances no doubt it is properly considered and allowed. But it may be doubted' whether the rule should go any further. If the proposed improvement had depreciated the value of the property, it would be very unjust that the condemning party should get it at its depreciated value, and the correct rule would seem to be that the value should be estimated irrespective of any effect produced by the proposed work. It has been held improper to consider what the property would have been worth if it could have had the benefit - of the proposed ' improvement without being taken. ” ■ -

The views of the author as to what should be the rulé accords with my views, and for such there is ampié authority. Thus in May v. Boston, 158 Mass l. c. 29, it is said:

“If the expected improvement involves the taking of land by the right of eminent domain, the value of the land taken will never be enhanced by the improvement, for the taking precludes the possibility of ever using it under improved conditions. In that respect it stands differently from other lands in the vicinity which is not taken. Whenever, there is a project for laying out'or widening a way, or taking land for any other public use which is expected to increase the value of real estate in the neighborhood, if the market price of land in the vicinity rises in anticipation of the change, the statute very justly says that the land taken shall not be paid for at the increased price. If it is known from the beginning exactly what land will be taken, it must also be known that that particular land can never be made more valuable by the improvements, since it can never be used by its owner under the improved conditions. If the plan is general, and it is not known exactly what land will be needed by the public, but that only-that ■some land will, whenever the plan takes definite form, and the location is fixed, it is known that the land to he taken has not received, and never can receive, any benefit from the improvements. There is no injustice in saying that such land shall not entitle its owner to be paid out of the public treasury at a rate determined, not by its value for use, but by a prospective and speculative value of land in the vicinity, derived from an expectation of the benefit to come from the public use for which this is to be taken.”

In an earlier Massachusetts case, Dorgan v. City of Boston, 12 Allen, l. c. 231, Bigelow, C. J., said:

“We are unable to perceive that this rule of damages will work any injustice to the landowner. It provides for compensation to him for the value of the property as possessed and enjoyed by him at the time when the statute was enacted which appropriated it to the public use. Nor can we see any good reasons for including in the valuation an element not incident or appertaining to the property itself in the hands of the •owner, but which it acquires only by the act which takes it from him and appropriates it to the public. ■Strictly speaking, the land taken is intrinsically worth to the owner only so much as its valuation would be as part of the entire tract or lot, irrespective of its proposed severance for .the public use. It is difficult to understand how land is increased in value to the owner by a public improvement, which can be effected only by depriving him of its use. Certainly there is no principle of equity on which a party can rest a claim for ■damages for the loss of a benefit or profit which, from the very nature of the case, he never could have received or enjoyed.”

These cases it is true are discussing a statute which fixed the rule of damages, but the validity of the statute was challenged on the ground that it was a wrongful taking of the landowner’s property, and therefore the very reason of the rule had to be discussed. And further in Benton v. Brookline, 151 Mass. l. c. 258, the court says:

“The benefit and the increased value arise from the expected construction of the way. The location does not construct it, but only renders its contemplated construction more probable. Its location and construction may be so assured before the location that the formal location may make no appreciable difference in the market value of land affected. It would be as reasonable to hold that there could be no assessment for betterments because the increase in market value from the expected construction of the way accrued in anticipation of the record location, as it would be to hold that such increase could be allowed in damages for land taken. [Cobb v. Boston, 112 Mass. 181.] ” In Louisiana Ry. & Nav. Co. v. Xavier Realty, 115 La. l. c. 341, it is said:
“We think the district court was right in taking as the date for estimating the value of property expropriated for railroad purposes that of the institution of the expropriation suit, withdrawing, hoivever, from the value so ascertained so much of the same as was the result of the construction. Many elements enter in enhancing the value of the property in the interval between the date of the determination of the railroad company to build its road and the date of the expropriation proceedings which may be taken for that purpose, which are entirely independent of the building of the road. The property owners, not the railroad company, are entitled to the benefit of such factors in increasing values.” (The italics are ours.)

In Shoemaker v. United States, 147 U. S. l. c. 305, that court said:

“While the board should be allowed a wide field in which to extend their investigation, yet it has never been held that they can go outside of the immediate duty before them, viz., to appraise the tracts of land proposed to be taken, by receiving evidence of con jectural or speculative values, based upon the anticipated effect of the proceedings under which the condemnation is had. [Kerr v. South Park Commissioners, 117 U. S. 379, 380.] ” Again the italics are ours.

So, too, in City of El Paso v. Coffin, 40 Tex. Civ. App. l. c. 60, the Texas court thus states the rule:

“It is held generally, in cases presenting the appropriate facts, that, where’a person’s entire property is included in one general proceeding of condemnation for a particular purpose, it is not permissible to consider that purpose, or the results thereof, in estimating the owner’s compensation. The reasons for this rule, are apparent. To permit it would be to take into consideration the condemnation proceeding itself as a factor, which is not allowed. Further, it is evident, in such a case, that the taking, and the effect on the value from-such taking, would be concurrent, and such increase would not exist when the taking occurs. The person’s property is taken, and is absorbed in the purpose for which it is taken, and, to alíow' him a compensation based on the value which the property would have had if not taken would be giving it a status it could not possibly have had in the very nature of the act. The reasoning of the Supreme Judicial Court of Massachusetts is appropriate here, though not its decision, as that was controlled by a statute: ‘Its real value for use is not increased until the change in its surroundings comes. If the expected improvement involves the taking of the land by the right of eminent domain, the value of the land taken will never be enhanced by the improvement, for the taking precludes the probability of ever using it under improved conditions.’ [May v. City of Boston, 158 Mass. 21.]”

Other cases will be found cited in the briefs, and by the author under section 745 of Lewis’s Eminent Domain, supra. These, however, suffice to illustrate the correct rule. In the case at bar the condemnation proceedings were begun December 1, 1910. February 24, 1910, plaintiff tried to buy these very lots from defendant for depot purposes. It thought it had bought them. It had a contract signed by the purported agent of defendants for them. The plaintiff even acquired the very property upon which the freight depot was located after it-thought it had acquired this property -from the defendants. The freight depot was begun in November, 1910, and first used in February, 1911. These facts are outlined as showing that the entire proceeding was one continuous and simultaneous act of,public improvement, with the taking of defendants ’ property as a part of the improvement scheme. Under the facts of the case, this instruction was error, for which the judgment must be reversed.

III. From the foregoing it follows that the refusal of plaintiff’s instructions covering the contrary view of defendants’ instruction number 11 should have been given,’ and their refusal constitutes error. It is urged that the court erred in excluding from the case a certain written contract of date February 24, 1910. By this contract the defendants through their purported agent, John S. Leahy, sold this property to plaintiffs for the sum of $150,000. The defendants later disavowed Leahy’s authority,- and declined to make the conveyance. This contract was not competent upon the question of the value (because Leahy’s authority to make it is not conclusively shown), but it was competent as tending to show that the whole improvement was one simultaneous act, and that it included the taking of this property, as might have been gathered from the profile of the road. It only becomes material by reason of the defendants claiming that the act of building the road and constructing the freight depot were independent acts, and the taking of defendants ’ property for a passenger depot was an afterthought. This attempted purchase of the property, evidenced by that contract, rebuts this theory of the defendants, and whilst there is other evidence rebutting such theory, yet if defendants persist in their theory, this contract fully explodes it, because it was made and executed and $2500 paid thereon long before the freight depot, which causes the trouble in this case, was even located. For this purpose the contract was competent.

IY. There are other matters suggested in the briefs, but only one other need be noted. The court admitted some evidence of the value of property on "Washington avenue as a standard by which to fix the value of this property. The two classes of property are entirely too dissimilar under the record to make this evidence of value, and it would therefore likely prove confusing and injurious. Upon retrial this should be excluded.

From what has been said the judgment as to damages should be reversed and the cause remanded, with directions to the trial court to retry the question of damages alone in the light of this opinion. It is so ordered.

All concur.


author: BROWN, C. PER CURIAM

text:
    KATHERINE DEVINE, Appellant, v. CITY OF ST. LOUIS.
    Division One,
    April 13, 1914.
    1. NEW TRIAL: Discretionary: Appeal. The granting of a new trial in civil cases on the ground that the verdict is against the weight of the evidence rests within the sound discretion of the trial court, and its action in that behalf will not be disturbed on appeal unless it appears that its discretionary power was abused, i. e., exercised1 in an arbitrary or improvident manner.
    2. -: Excessive Verdict: Appeal. The Supreme Court refuses to interfere with the ruling of the trial court granting a new trial where, in an action for damages for injuries suffered: by falling through a cinder sidewalk and severely spraining her ankle, the plaintiff, upon conflicting evidence as to the effect of the injury, received a verdict for $2000 and refused to file a remittitur for $800.
    3.--: -: Constitutional Question. The granting of new trials where excessive damages have been given is not ■ a denial of the right of trial by jury as safeguarded by section 28 of article 2 of the. Missouri Constitution. In England the practice of granting new trials at the discretion of the court for miscarriages of the jury, including the award of excessive damages, was firmly established in the eighteenth century, and has continued unabated. It is a part of the common law of England adopted in the Territory of Missouri January 19, 1816, and it has during the entire period of statehood been a canon of constitutional and statutory interpretation.
    Appeal from St. Louis City Circuit Court. — Hon. Hugo Muench, Judge.
    Affirmed.
    6r. B. Arnold for appellant.
    (1) The verdict of the jury is not excessive. (2) The granting of a new trial on the ground assigned ■ — assuming that the trial court had such power — was an abuse of judicial discretion. (3) In passing on this question this court ought to assume that the plaintiff’s evidence is true, and indulge in her favor every fair and reasonable inference which the evidence sustains. (4) Section 28, art. 2, of our Constitution, declares that the right of trial by jury, “as heretofore enjoyed, shall remain inviolate.” The granting of a new trial, on the ground assigned, was a direct violation of the appellant’s constitutional right of trial by jury. Burdict v. Railroad, 123 Mo. 221; Rodney v. Railroad, 127 Mo. 676. (5)' The following English and American decisions and text writers will demonstrate beyond all doubt that, prior to and at the time of the adoption of constitutional government in this country, the English courts and judges had never assumed the power to set aside the verdict of a jury, in this class of cases, on the ground of excessive damages, unless the damages were so excessive as to in-dictate passion or prejudice in the jury. Benson v. Frederick, 3 Bur rough’s Rep. 1846; Bennett v. Alleott, 2 Durnf. & East, 166; Duberley v. Gunning, 4 Durnf. & East, 651; Gough v. Farr, 1 Young & J. 477; Hewlett v. Cruchley, 5 Taunt. 277; Chambers v. Caulfield, 6 East, 244, 256; Lord Townsend v. Dr. Hughes, 2 Modern Rep. 150; Clerk v. Udall, 2 Salk. Rep. 649; Gilbert v. Burtenshaw, Cow. Rep. • 230; Fabrigis v. Mostyn, 2 Black. Rep. 929; Leith v. Pope, 2 Black. Rep. 1327; 3 Graham & Waterman on New Trials, 1137-1158; 2 Tidd’s Practice, 908; Wilford v. Berkeley, 1 Burrough’s Rep. 609. (6) No case can be found decided by this court prior to the adoption of the present Constitution which holds or recognizes the doctrine that our courts have the power to grant new trials, in this class of cases, on the ground that the verdict was merely excessive. (7) It was always the rule in this State prior to the adoption of the present Constitution that the question of damages, in this kind of a case, was one exclusively for the jury, and their verdict was not subject to review by any court on the sole ground of excessiveness, unless the excess was so great as to raise a presumption that the jury were guilty of misconduct. Fallenstein v. Booth, 13 Mo. 427; Wells v. Sanger, 21 Mo. 357; Goetz v. Ambs, 27 Mo. 34; Kennedy v. Railroad, 36 Mo. 364; Walser v. Thies, 56 Mo. 92; Whalen v. Railroad, 60 Mo. 323„ (8) If your Honors are of the opinion that under the common and statute law of this State, as it existed prior to the time of the adoption of the present Constitution, our courts and the English courts did not assert or exercise the power of setting aside verdicts on the ground of mere excessiveness alone, then we ask your Honors to overrule those decisions of this court which sustain this power and return to the ruling in the cases of Gurley v. Railroad, 104 Mo. 211, and Rodney v. Railroad, 127 Mo. 676.

      William E. Baird and Truman P. Young for respondent.
    (1) A motion for a new trial is addressed to the sound discretion of the trial court. Its action in sustaining it will not be reviewed except where there is a clear abuse of discretion. Parker v. Britton, 133 Mo. App. 274; Gould v. St. John, -207 Mo. 631; Rodan v. Transit Co., 207 Mo. 406; Morrell v. Lawrence, 203 Mo. 363; Karnes v. Winn, 126 Mo. App. 712; Crow v. Crow, 124 Mo. App. 125; Mfg. Co. v. Construction Co., 124 Mo. App. 368. (2) Where a motion for new triallias been sustained this court can do nothing but affirm tbe ruling or reverse it with instructions to enter judgment on tbe verdict. In such case tbe court cannot reverse tbe ruling on condition that tbe appellant will enter a remittitur. This is true in tbe very nature of the case, for tbe appellant has no judgment of which be can remit a part. Tbe jurisdiction of this court is appellate in such cases. To undertake to reverse tbe case on tbe condition that a remittitur is entered would be to try tbe case de novo. Abies v. Ackley, 126 Mo. App. 84; Chandler v. Gloyd, 217 Mo. 394. We cite this case though tbe ruling there was that tbe case might be reversed conditionally for tbe reason that tbe appellant bad actually filed a remittitur in tbe lower court. (3) Where plaintiff appeals from an order sustaining a motion for new trial, defendant on appeal may argue any ground stated in tbe motion. It is not necessary that be shall have saved any exceptions. Smart v. Kansas City, 208 Mo. 162; Crawford v. Stock Yards Co.; 215 Mo. 402; Taylor v. Railroad, 130 Mo. App. 589; Chlatída v. Transit Co., 213 Mo. 262; James v. Oliver, 129 Mo. App. 86; Chandler’v. Gloyd, 217 Mo. 406; Green v: Terminal Assn., 211 Mo. 30, which, contains dicta contra. (4) The ruling that the damages were excessive was not an abuse of the trial court’s discretion. Feddeck v. Car Co., 125 Mo. Ápp. 24; Fairgrieve v. Moberly, 391 Mo. App. 31, 29 Mo. App. 141; Doherty-v. Kansas City, 105 Mo. App. 173; Bragg v. Railroad, 192 Mo. 365. (5) The power of the trial court to order a remittitur is well established! Chitty v. Railroad, 166 Mo. 445; Cook v. Printing Co., 227 Mo. 445; Clifton v. Railroad, 232 Mo. 715. The courts may also set aside verdicts as being inadequate. Fisher v. St. Louis, 189 Mo. 567; McCarty v. Transit Co., 192 Mo. 396.
   BROWN, C.

The appellant seeks to recover damages for personal injury suffered by her in the city of St. Louis by falling through a cinder sidewalk on Brannon avenue. The cinder surface broke under her weight so that her foot went through into an excavation beneath it in such a manner as to seriously sprain her ankle. This occurred on January 4, 1908, and the ankle was still weak at the time of the trial, on March 14, 1910. There was much conflicting evidence as to her disability during the time intervening between the injury and the trial. The jury returned a verdict for $2000. The defendant in due time filed its motion for a new trial, stating among other grounds therefor the following:

“6. The court erred in overruling the demurrer to the evidence at the close of the whole case.
‘ ‘ 11. The amount of the verdict is excessive and is not supported or justified by the evidence.
“12. The verdict is the result of sympathy, passion and prejudice for the plaintiff on the part of the jury, and against the defendant.”

The trial court afterwards announced that it would sustain the motion and grant a new trial, unless the plaintiff should, within ten days thereafter, remit from said verdict the sum of eight hundred dollars. This she refused to do, and after the expiration of the ten days allowed for that purpose the court sustained said motion and granted a new trial on the ground that “the verdict of the jury is excessive.” The appeal is taken from this order.

I. The appellant insists in her hrief that the verdict is not excessive; that “no man who has ever carried a rheumatic pain in a joint for two years— just acute enough to keep one fully advised of its presence — will ever say that $25 or even $50 a month is excessive compensation for his suffering;” and expresses doubt that “the learned jurist nisi was ever rheumatic or had ever had a bone broken or an ankle sprained, else he would not have laid his heavy hand on this verdict.” The inference is that some member or members of this court may have been favored with a broader experience and therefore be qualified to check the exercise of the uneducated discretion of the trial judge. Whether or not we have that power in this case is the important question presented. In Hewitt v. Steele, 118 Mo. 463, we held that, “if the action of the court in granting the new trial can be sustained upon any ground set forth in the motion for that purpose, it is our duty to do so.” This language was approved in Bank v. Wood, 124 Mo. 72, 76, in which this court, after quoting it, said: “Circuit courts have large discretion in the matter of granting new trials, particularly upon the ground that the verdict is against the weight of the evidence. ’ This court has often ruled that, in law cases, where there is a conflict in the evidence, it would not review it and determine its weight, and it has as often declared it to be not only the right, but the duty of circuit courts to supervise the verdicts of juries and grant new trials, if the verdict is, in their opinion, against the weight of evidence. When there is a substantial conflict in the evidence we should no more interfere with the action of the circuit court in granting a new trial than we should, in such case, interfere with the verdict which has been approved by that court.” In McCarty v. Transit Co., 192 Mo. 396, 401, Judge Lamm for this court, after quoting a number of our own cases to sustain him, said: ‘ ‘ The wise exercise of this judicial discretion on the part of circuit judges has always been encouraged by this court.” In Taylor v. Railroad, 163 Mo. 191, we said that if when the motion for a new trial is presented, the court was of the opinion that the finding of the jury on the merits of the case was against the evidence “it was not only its province, but it was its plain duty to do as it did, set aside its finding and grant a new trial;” and it cites many cases in support of that statement. Coming to our later cases, we said in Gould v. St. John, 207 Mo. 619, 631-632, that in granting new trials the courts have much discretionary power and that where the weight of the evidence is involved this court will- not interfere with that discretion, unless it has been unwisely exercised. We also said in that case, citing McKay v. Underwood, 47 Mo. 187, “that the granting of a new trial on the ground that the verdict is against the weight of the evidence rests peculiarly with the judge presiding at the trial.” In Rodan v. Transit Co., 207 Mo. 392, 406, we said: “It must be assumed as a commonplace of the law, arising to the level of an axiom, that the granting of a new trial rests within the sound discretion of the trial court; and its action in that behalf will not be disturbed on appeal unless it appears that its discretionary power was abused, i. e., exercised in an arbitrary or improvident manner.”

In Morrell v. Lawrence, 203 Mo. 363, 381, this court applied the same principle in a case where the ground assigned as a reason for granting a new trial was that the verdict was excessive. We said: “That is a point peculiarly within the province of the trial judge, it is one that he is better qualified to judge than the appellate court, the law puts that important responsibility upon him and it advances the cause of justice when the trial judge courageously performs that duty.” In this case we see no reason for departing from this rule. The evidence was' conflicting, at least in its coloring as to the painful and disabling quality of the injury. The trial court had the plaintiff and all the witnesses before it, and was much better qualified than we to determine whether justice will be promoted by another trial. It may be that as in Goetz v. Ambs, 27 Mo. 28, cited by appellant, the. verdict will be increased in another trial. If so the statute (R. S. 1909, sec. 2023) which permits but one retrial for this cause will relieve the courts- of much of their responsibility.

II. The appellant insists that the action of the trial court and also of this court in the many cases to which we have referred are all in violation of section 28 of article 2 of the Constitution of our State, because they amount to a denial of the right of trial by jury as enjoyed before the adoption of that instrument in 1875, and that we should overrule our own more recent cases and turn to the good old doctrine which she thinks was held by us in Gurley v. Railroad, 104 Mo. 211, and Rodney v. Railroad, 127 Mo. 676. She says that we should do this if we are of the opinion that under the common and statute law of this State as it existed prior to that time our own and English courts did not assert or exercise the power now claimed. Acting upon the old theory that a recurrence to first principles is a great assistance to keep us from swerving from the right track it is well enough to refer to the early history of the power to grant new trials. The first reported case on that subject which we have read is the Slade case, Style, 138, which was decided in the King’s Bench in 1648. It arose upon motion for judgment formerly stayed upon a certificate made by Baron Atkins that the verdict passed against his opinion. Bacon, J., said: “Judgments have been arrested in the common pleas upon such certificates;” but Roll, J., held “it ought not to be stayed, though it have been done in the common pleas, for it was too arbitrary for them to do it, and you may have your attaint against the jury, and there is no other remedy in law for you; but it were good to advise the party to suffer a new trial for better satisfaction.” The new trial was accordingly ordered. The next case we notice is Wood v. Gunston, page 466 in the same report, which was decided in 1655 in the King’s Bench. Wood sued Gunston for slander and obtained a verdict for 1500Í damages. The defendant moved for a new trial on the ground that the damages were excessive. Glyn, C. J., said: “It is in the discretion of the court in some cases to grant a new trial, but this must be a judicial, and not an arbitrary discretion, and it is frequent in our books for the court to take notice of the miscarriages of juries, and to grant new trials upon them, and it is for the people’s benefit that it should be so, for a jury may sometimes by indirect dealings be moved to side with one party and not to be indifferent betwixt them, but it cannot be so intended of the court; wherefore let there be a new trial the next term. ’ ’

In 1773 the new trial seems to have got-well into harness as appears from Vernon v. Hankey, 2 Term Rep. 113. In the meantime, in 1757, Bright v. Eynon, 1 Burr. 391, came up in the King’s Bench, in which Lord Mansfield in a long and instructive opinion concurred in by the other justices and expressly indorsing Wood v. Gunston said: “Trails by jury, in civil causes, could not subsist now without a power somewhere to grant new trials.” His masterly argument in this opinion will well repay perusal. We have been greatly aided by the English cases collected and cited by the learned counsel for the appellant. They all recognize the power of the trial court, in the exercise of a proper discretion, to grant a new trial on the ground of excessive damages, and there is no instance on the part of an appellate court of an attempt to control that discretion. Wilford v. Berkeley, 1 Burr. 609, so cited, was an action for criminal conversation with plaintiff’s wife, at the trial of which in King’s Bench in 1758, Lord Mansfield presided. There was a verdict for 500Z, and a motion to set it aside because it was excessive. The report states: ‘ ‘ The court were all three, clear and unanimous, that although there was no doubt of the power of the court to exercise a proper discretion in setting aside verdicts for excessiveness of damages in cases where the quantum of the damage really suffered by the plaintiff could be apparent, or they were of such a nature that the court could properly judge of the degree of the injury, and could see manifestly that the jury had been outrageous in giving such damages as greatly exceeded the .injury; yet the case was very different, where it depended upon circumstances which were properly and solely under the cognizance of the jury, and were fit to be submitted to their decision and estimate. And they held the case of criminal conversation with another man’s wife to be of this latter kind.”

We think, with the court in that case, that the damages' accruing to one for criminal conversation with his wife are so largely personal and sentimental in their nature that judicial experience affords little or no aid in estimating them; so that the judged with respect to them, labors under all the difficulties that beset the jury. The most of the English cases cited by appellant are of that general character. Benson v. Frederick, 3 Burr. 1846, is., however, an action like this, for personal injury, and well repays notice in this connection. It was brought against the defendant, a •colonel of the militia, for ordering the plaintiff, a common soldier, to be stripped, and receive twenty lashes from two drummers. Owing to the leniency of the drummers he did not suffer much injury, but the jury assessed his damages at 1501. The report states: “Lord Mansfield said, he had no doubt that it might be right to give an. opportunity of reconsidering verdicts where excessive damages had been given. But in the present case he was not dissatisfied with the verdict: for Sir Thomas had manifestly acted arbitrarily, unjustifiably and unreasonably.” Mr. Justice Wilmot, concurring, observed that “he had no doubt but that the court might look upon these damages to be too high, in a common and ordinary case, and had power to set aside the verdict and award a new writ of inquiry; yet, as in this case the defendant had acted very arbitrarily, and was well able to pay for it, he •did not think the court was obliged to set aside the verdict that the jury had found.’-’ Mr. Justice Ash-ton, concurring, said: “He was very full in vindicating the discretion of the court, to grant new trials, even when the damages were ideal: and cited the case of Wood v. Gunston. But as, in the present case, the defendant had acted very arbitrarily and unjustifiably, and under the circumstances that appeared upon the report, he did not think this to be a proper occasion for the court to set the verdict aside,” so it seems that in that case a new trial was refused on the sole ground that all the judges thought the defendant only got what was coming to him. It contains the whole pith of the matter and vindicates the discretion of the court, even .in cases where the action of the jury in the assessment •of damages is “ideal.” Leith v. Pope, 2 Black. 327, to which appellant’s counsel directs our attention, is of ■the same character, and the court was influenced by a -similar motive. The jury found a verdict in an action of malicious prosecution for 10,000i. The defendant moved for a new trial “on account of the outra,geousness of the damages, which exceeded (it was said) all example.” Justices Gould, Blackstone and Nares, in their opinion refusing a new trial said: “A prosecution thus aimed at the life of the plaintiff, and proceeding from such wicked motives, must evidence a most depraved and corrupted heart; for which, had he had an associate, both might have been indicted for conspiracy, and have received the most infamous, called emphatically the villenous, judgment. In such a case, the court cannot say that any sum assessed by the jury is too much, if the circumstances of the parties will warrant it. Now the plaintiff is a man of family, a baronet, an officer in .the army, and a member of Parliament; all of them respectable situations, and which may render the value of an injury done to him, especially when directed against his life, adequate to 10,000?. The court cannot enter into stories of private scandal, which have been liberally propagated on both sides. This is the light in which the plaintiff appears upon the record and the evidence. The defendant appeared upon evidence to be exceeding wealthy, and well able to sustain such a verdict.”

We can safely say that in England the practice of granting new trials at the discretion of the court for miscarriages of the jury, including the award of excessive damages, was firmly established in the eighteenth century, and has continued unabated. It is: a part of the common law of England adopted in the Territory of Missouri on the 19th.day of January, 1816, and which has during the entire period of our statehood been a canon of constitutional and statutory interpretation to which we have had frequent' recourse.

We have carefully read the numerous Missouri cases to which counsel for appellant has referred, and greatly appreciate the industry and learning he has brought to our aid. They all deal with the power and duty of this court with respect to the verdicts of juries; hut we find in them no authority against the proposition that the granting or refusing of new trials on the ground that the verdict is against the weight of the evidence rests peculiarly with the judge presiding at the trial, and that this discretion will not be ordinarily interfered with unless it appears that it has been unsoundly or arbitrarily exercised. This rule applies to the verdict in its entirety, without reference to whether the evidential weakness be in its amount or in some other controlling particular. In the former case, justice commends the practice by which it may be corrected by the action of the party for whom it is ren- ■ dered, without the cost and delay of a new trial.

It follows from what we have said that the order of the circuit court for the city of St. Louis granting a new trial must be affirmed, and the cause remanded for further proceedings.

Blair, G., concurs.

PER CURIAM

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

All the judges concur.