author: GANTT, J.

text:
    THE STATE v. MODLIN, Appellant.
    Division Two,
    June 19, 1906.
    1. APPEAL: Bill of Exceptions: Not Reviewable. When the motion for new trial is not preserved in the bill of exceptions, and there is no direction to the clerk to copy the motion in the bill, and the evidence is not embodied in the bill, only the record proper is before the appellate court for review.
    2. VERDICT: Special Finding: Not Responsive: Information: Accessary After Fact: Larceny. The information charged defendant with feloniously receiving, concealing, etc., certain parties, knowing that they had committed larceny, with the intent and in order that the said parties might escape and avoid arrest, etc. The verdict was: “We the jury in the case of State vs. Charles Modlin, for harboring thieves, find the defendant guilty, and assess his punishment at two years in the state penitentiary.” Held, that this verdict must be treated as a special finding and as such it is not responsive to the charge contained in the information.

      3. INFORMATION: As Appearing in Record: Appeal. The appellate court is 'bound by the certified record, and where the information, as it appears in the record, is sufficient, errors contained in an erroneous copy of the information will not be considered.
    Appeal from McDonald Circnit Court. — No». F. G. Johnston, Judge.
    Reversed and remanded.

      J. W. George and J. A. Sturges for appellant.
    (1) Defendant was charged withbeing an accessory-after the fact, and the jury found him guilty of harboring thieves. State v. DeWitt, 186 Mo. 61; 1 Bish. Crim. Proc. (3 Ed.), secs. 81, 82,127,128. (2) The information is insufficient in that it charges that before defendant could claim his exemptions from' the statute creating the offense he is charged with violating he must be related as set out in the statute to both Eller and Winslo.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information, which was accompanied by the affidavit of the prosecuting attorney, was sufficient. State v. Reed, 85 Mo. 194; R. S. 1899, sec. 2365; Kelley’s Crim. Daw, sec. 53. (2) The court can not review the evidence nor the instructions, because the motion for a new trial is not preserved in the bill of exceptions ; neither is there any direction to the clerk to copy said motion. State v. Dunn, 73 Mo. 586; State v. Copeland, 146 Mo. 5; State v. Robinson, 79 Mo. 66; Reynolds v. Railroad, 146 Mo. 128.
   GANTT, J.

The prosecuting attorney of McDonald county, on July 1, 1905, filed an information in the office of the clerk of the circuit court of said county, duly verified, wherein and whereby he charged that “Floyd Eller and Joe Winslo in May, 1905, at said county, did feloniously take, steal and carry away one sorrel horse, the property of one Clay Robbins, and one saddle, the property of one H. H. Shover, of the value of thirty dollars, and that the defendant Charles Modlin, well knowing the said Floyd Eller and Joe Winslo to have committed the aforesaid felonies in manner and form aforesaid, afterwards, to wit, on the —— day of May, 1905, at said county, did, then and there, unlawfully, willfully and feloniously receive, conceal, harbor and maintain said Eller and Winslo with the intent and in order that they might escape and avoid arrest, trial, conviction and punishment; the said Charles Modlin then and there not standing in the relation of husband, or wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity, to the said Eller and Winslo.”

I. The information is grounded on section 2365, Revised Statutes 1899, which provides: “Every person not standing in the relation of husband or wife, parent or grand-parent, child or grand-child, brother or sister, by consanguinity or affinity, who shall be convicted of having concealed any offender after the commission of any felony, or of having given to such offender any other aid, knowing that he has committed a felony, with the intent and in order that he may escape or avoid arrest, trial, conviction or punishment, and no other, shall be deemed an accessory after the fact, and upon conviction shall be punished by imprisonment in the penitentiary not exceeding five years, or in the county jail not exceeding one year nor less than six months, or by fine not less than four hundred dollars, or by both a fine not less than one hundred dollars and imprisonment in a county jail not less than three months. ’ ’

Owing to the utter disregard of all the technical requirements in the preparation of the bill of exceptions in this cause, and in the certification of the record proper, the transcript in this cause was returned in order to have the same show the inception of this prosecution and the various steps taken in the cause, so that we might understand the history of the various steps taken in the circuit court. It has again been certified to ns with little or no improvement. Neither the evidence nor the instructions of the court can be reviewed because the motion for new trial is not preserved in the bill of exceptions, neither is there any direction to the clerk to copy said motion in the bill of exceptions. The oral evidence is not embodied in the bill of exceptions and consequently cannot be considered by this court. The record proper only is before us for review. The verdict is a part of the record proper, and is in this form: “We the jury in the case of State v. Charles Modlin, for harboring thieves, find the defendant guilty, and assess his punishment at two years in the State penitentiary.” The point is made that the verdict on its face show that it is insufficient to sustain the judgment and .sentence of the circuit court on the information against the defendant. By reference to the information itself and the statute, already noted, upon which it is founded, it will be seen that the defendant was charged with being an accessory after the fact in feloniously receiving, concealing, harboring and maintaining Floyd Eller and Joe Winslo, after they had feloniously taken, stolen and carried away the horse and saddle mentioned in the information, with the knowledge that the said Eller and Winslo had .committed the said larcenies.

In the consideration of the sufficiency of this verdict, it must be borne in mind that it is well-settled law in Missouri that if the verdict, which is a part of the record, is not responsive to the issue, or is uncertain or indefinite, it is open for review on appeal or writ of error as a part of the record proper. Had the jury said, “We the jury find the defendant guilty,” or had they said, “We the jury find the defendant guilty as charged in the information,” there being but one offense charged therein, it would have been a good general verdict, but the jury did not stop at that, but undertook to express themselves as to the nature of the case and the charge against the defendant which they had investigated, and that was, that they had tried him on a charge of “harboring thieves,” and of that they found him guilty, and assessed his punishment at two years in the penitentiary. The jury might well have believed that Winslo and Eller were thieves, and that the defendant was “harboring them,” that is to say, he was giving them shelter or lodging them, or entertaining them as his guests, and yet not have found that the defendant knew or had knowledge of their having stolen the horse of Robbins, prior to the time of giving them shelter in his house, and had they appreciated the charge in the information, they might well have refused to find him guilty of said charge. We can only look to their verdict to ascertain what they really found, and while the verdict is inartistically expressed, we think, taking the whole verdict together, that the jury found the defendant guilty of “harboring thieves” and nothing else. The gist of the offense charged against the defendant in this case is that he had knowledge of the commission by Eller and Winslo of grand larceny and after having such knowledge, knowingly and with the intent to aid them to escape or avoid arrest, concealed them, and to justify the jury in convicting the defendant in this case it was not enough simply to find the defendant was guilty of “harboring thieves,” but it was essential that the jury should either find him guilty as charged in the information, or that they should fiud him guilty of having knowingly concealed the said Eller and Winslo with the intent to aid them to escape arrest and punishment for having stolen the horse of Clay Robbins. In view of the decisions of this court in State v. DeWitt, 186 Mo. 61, and State v. Cronin, 189 Mo. l. c. 670, 671, we think this verdict must he treated as a special finding and as such it falls far short of finding the material and essentials of the offense with which the defendant was charged in the information.

II. The information is assailed as insufficient because, it is asserted, it charged that before the defendant could claim his exemptions from the statute creating the offense with which he is charged, he must be related as set out in the statute to both Eller and Winslo.

The allegation of the information on this point is, after alleging the larceny of Eller and Winslo and feloniously receiving and aiding the said Eller and Wins-lo, with the intent that they might make their escape, “The said Charles Modlin then and there not standing in the relation of husband or wife, parent or grandparent, brother or sister, by consanguinity or affinity, to the said Floyd Eller or Joe Winslo.” The learned counsel for the defendant in their copy of the information have inserted the word “and” instead of the word “or” between the words “Floyd Eller and Joe Wins-lo” and it is upon this use of the conjunctive, instead of the disjunctive, that their contention is based.

Of course,this court is bound by the certified record in this case and the record uses the disjunctive“or” instead of the conjunctive “and,” and hence the very ingenious criticism and argument of the learned counsel for the defendant must be held to be based upon a misapprehension of the information, and our conclusion is that the information does not narrow any of the rights of defense given to the defendant by the terms of the statute under which he was prosecuted.

For the reason that the verdict, in our opinion, is not responsive to the information and is indefinite and uncertain, the judgment of the circuit court must be and is reversed and the cause remanded.

It would, of course, have been far more satisfactory to us to have examined and considered the evidence and the instructions together, but under the set-tied rule of law, we are forbidden to do so. "When an appeal is taken which involves the liberty of the defendant, his counsel should see to it that the record and the bill of exceptions are prepared in such a way as to require their consideration by the appellate courts. In this case the well-established practice has been ignored. We trust that in the future the judges of the criminal and circuit courts will require counsel to conform their bills of exceptions to the long-established and easily-observed formulas that have so long prevailed in this State.

Judgment reversed and cause remanded.

Burgess, P. J., and Fox. J., concur.


source: Caselaw Access Project

author: BURGESS, P. J.

license: Public Domain

text:
    BARREE, Appellant, v. CITY OF CAPE GIRARDEAU.
    Division Two,
    June 19, 1906.
    1. CITY: Liability: Act of Servant. For a personal injury -wrongfully inflicted upon a private citizen by the servant of a city while in the exercise of a corporate franchise conferred upon the corporation for the public good, and not for private corporate advantage, the city is not liable; on the other hand, if the servant, at the time he inflicted the injury, was in the exercise of power conferred upon the city for its private benefit, the city is liable for the servant’s wrongful act.
    2. -: -: -: Repairing Street: Assaulting Street Car Conductor: Pleading: Demurrer. The petition alleged that plaintiff was the lessee of a corporation which held a street railway franchise from the city; that it was the duty of the city to keep its streets in repair; that it was in the act of repairing the same when plaintiff came along the track placed in the street, with his car; that one Brunke was the agent and servant of the city in making the repairs; that said agent and servant piled gravel and broken stones on the street car track, so that the car could not pass; that plaintiff undertook, when ' his car came along, to remove the same; that thereupon Brunke assaulted him, injuring his arm; and that the injury was in-' flicted in trying to prevent the repairs from being interfered with. Held, that the petition states a cause of action against the city for damages for the injuries inflicted.

      3. -: -: -: Excess of Authority: Liability of Employer. When an agent or servant is employed to perform a certain piece of work, and while in the line of his duty, injures another, even though he exceeds his authorized powers or dis- , obeys his instructions, his employer is responsible to the party injured for damagés sustained by reason of such injury.
    4. -: -: -: General Liability of Corporations. Corporations, whether municipal or aggregate, are held to the same liability as individuals; and if an agent or servant of the corporation, in the line of his employment, is guilty of negligence or commits a wrong, the corporation must respond in damages.
    Appeal from Cape Girardeau Circuit Court. — Hon. Henry G. Riley, Judge.
    Reversed and remanded.

      8am M. Green and R. G. Ranney for appellant.
    . (1) All the allegations in the petition are, by the demurrer, admitted to be true for the purpose of deciding the question raised by it. McKenzie v. Mathews, 59 Mo. 99. (2) The sole contention of respondent’s counsel in the trial court was that the defendant, being a municipal corporation, could not be held responsible for the non-feasance of its servant. This contention was based on the case of Ulrich v..St. Louis, 112 Mo. 138. But in this case, as in all the others on this question, the court makes the same distinction, viz: That no relation of agency exists between the municipal corporation and its officers with respect to the discharge of public, governmental duties, and the corporation is not responsible for the acts or omissions of its officers. This is nothing more than an application and proper extension of the rule that the State is not liable for the misfeasance of its officers. Shearman & Redfield on Negligence, sec. 253. But where the officer or servant of a municipal corporation is in the exercise of a power conferred upon the corporation for its private benefit, and injury ensues from the negligence or misfeasance of such officer or servant, the corporation is liable, as in the case of private corporations or parties. Murtaugh v. St. Louis, 44 Mo. 479; Williams, Municipal Liability for Torts, sec. 11; Hunt v. Boonville, 65 Mo. 620; Hilsdorf v. St. Louis, 501 Mo. 94; Angelí and Ames on Corporations, secs. 385-8;- Sheldon v. Kalamazoo, 24 Mich. 385. And this is true, even though it may seem ultimately to the benefit of the public. Williams, Municipal Liability for Torts, sec. 17; Maxmilliam v. May- or of New York, 62 N. Y. 167; Garretzen v. Duenckel, 50 Mo. 104;. Meade v. Railroad, 68 Mo. App. 92; Ephland v. Railroad, 137 Mo. 187; Mound City Paint & Color Co. v. Conton, 15 Mo. App. 601; Schmidt v. Adams, 18 Mo. App. 432; Wood on Master & Servant, secs. 267-287; Harriman v. Stone, 57 Mo. 93; Whitehead v. Railroad, 99 Mo. 263. For wanton acts of the servant while acting within the scope of his authority resulting in personal injury, the master is responsible. Perkins v. Railroad, 55 Mo. 201; Echert v. St. Louis Transfer Co., 2 Mo. App. 362. The doctrine of respondeat superior applies. Hoehl v. Railroad, 119 Mo. 339; Dillon on Municipal Corporations (4 Ed.), sec. 974.

      L. Caruthers and Robert L. Wilson for respondent.
    A municipal corporation exercising the powers, which are public and governmental functions delegated to it by the State exclusively for the public good, is not liable for negligence or malfeasance of its officers. One of the public duties of a city is to keep its streets in repair and for that the city receives no .compensation. If powers are granted for public purposes exclusively, they belong to the corporate body in its political or municipal character and the uniform ruling in this State has been that a.municipal corporation is not responsible for the malfeasance of its officers when in discharge of a public duty, and in the discharge of which the corporation receives no pecuniary advantage. Murtaugh v. St. Louis, 44 Mo. 479; Armstrong v. Brunswick, 79 Mo. 321; Kiley v. Kansas City, 87 Mo. 106; Ulrich v. St. Louis, 112 Mo. 142; Jefferson Co. v. St. Louis Co., 113 Mo. 629; Donahue v. Kansas City, 136 Mo. 664; Bullmaster v. St. Joseph, 70 Mo. App. 63. There is a line of cases where municipal corporations have been held liable for damages for malfeasance of their officers, but in principle are unlike the case at bar. The rule laid down in those cases in this: That when the officer or servant of a municipal corporation is in the exercise of a power conferred upon the corporation for its private benefit, and injury ensues from the negligence or misfeasance of such officer or servant, the corporation is liable as in the case of private corporation or parties, but when the acts or omissions complained of were done or omitted in the exercise of a corporate franchise conferred upon the corporation for the public good, and not for private corporate advantage, then the corporation is not liable for malfeasance of its officers.
   BURGESS, P. J.

This is an action for ten thousand dollars damages alleged to have been sustained by plaintiff by reason of the wrongful and unlawful acts and assault by one Fritz Brunke, agent and servant of defendant, upon plaintiff.

The petition, leaving off the formal parts, is as follows:

“Plaintiff for his cause of action, by leave of court first had and obtained for his amended petition herein, states that at all times hereinafter mentioned, he was the lessee of the Cape Girardeau Street Railway Company, a corporation duly incorporated under and by the laws of the State of Missouri, and which said corporation was and is the successor or assign of W. A. Penney and L. S. Joseph, to whom was granted by the defendant, by ordinance No. 484, duly passed and adopted by said defendant, tbe right to construct and operate a street railway within the City of Cape Girardeau, Missouri, and especially over and along and through Spanish street of said city; that by the terms of his said agreement with said street railway company he had the same right to operate and run street cars over said streets in said city that the said street railway company has and had at said times, and the plaintiff was at the times hereinafter mentioned running and operating street ears, under and by virtue of his said agreement, over the said streets within said city.
“That the defendant is and was at all said times a municipal corporation, organized and existing under the laws of the State of Missouri, and was and is a city of the third class, exercising all the powers and bound by all the duties of cities of that class. That at all said times said Spanish street of said city was a public highway and it became and was then and there the duty of the defendant to at all times keep the same in repair and free from obstructions; but not regarding its duty in that behalf, on or about the 21st day of August, 1902, the said defendant, by its agents, servants and employees, and especially its agent and servant Fritz Brunke, did, carelessly, negligently and wrongfully, place and deposit in and on said Spanish street near Merriwether street a large quantity of gravel or broken stones; and in so doing, carelessly, negligently and wrongfully covered up and thereby obstructed the rails or track on which plaintiff’s cars had to run, with said gravel or broken stones, so that it became and was then and there impossible for plaintiff to operate and run his cars over said streets and carry his passengers to their destinations without great danger to his said car and passengers. Thereupon plaintiff stopped his car, and for the purpose of avoiding said danger, began to remove said gravel or broken stones from his said rails and tracks; and the said Fritz Brnnke, being then and there the agent and servant of the defendant, and engaged in placing said gravel, or broken stones on said street for the purpose of repairing the same, and seeing the plaintiff removing said stones from his said rails and tracks, ordered him, the said plaintiff, not to interfere with said gravel or broken stones which had been placed on said rails as aforesaid by the said city defendant, and upon nlaintiff’s refusal to obey said order, the said Fritz Brunke then and there seized plaintiff by the right arm and jerked him away with great force and violence; and the plaintiff to save himself from being dragged over the streets and injured, caught hold of one of the iron rods on his car with his left hand; but the said Brunke, as the said agent and employee of the defendant and still trying to prevent said gravel and stones from being interfered with and for the purpose of protecting the defendant’s streets from interference by the plaintiff, then and there negligently^ carelessly and wrongfully jerked plaintiff’s hand loose from said car with such force and violence that plaintiff’s left arm was thereby greatly strained, bruised and injured. And to further protect defendant’s streets and to prevent said gravel and broken stones from being removed, the said Brunke then and there struck, beat and otherwise abused this plaintiff by dragging him over the streets, taking him away from his car and attempting to lock him up in a dungeon in a remote part of the said city. That by reason of said injuries plaintiff’s said left arm has been rendered useless and permanently disabled; that he has suffered great pain of body and distress of mind; that in consequence of said injuries inflicted as aforesaid he has been forced to give up his said contract with said street railway company, and ever since has been wholly incapacitated for any kind of labor; and altogether he has been damaged by reason thereof in the sum of ten thousand dollars, for which he asks judgment.”

Defendant city demurred to the petition upon the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was sustained, and, plaintiff refusing to plead further, judgment was rendered for defendant on the demurrer. Plaintiff then filed motion for new trial, which was overruled. He appeals.

The principal question for consideration is whether defendant city is liable to respond in damages to plaintiff under the petition, admitting all of' the material facts therein alleged to be true. By the charter of Cape Girardeau the general power is conferred upon the city to “open and improve streets, avenues, alleys and other highways, and to make sidewalks and build bridges, culverts and sewers within the city, and to exercise exclusive control over streets and alleys, and establish grades therefor. ’ ’

It stands admitted by the demurrer that Fritz Brunke was the servant of defendant at the time of the commission of the injury complained of by plaintiff; but if the injury was committed while Brunke was in the exercise of a corporate franchise conferred upon the corporation for the public good, and not for private corporate advantage, the corporation is not liable for the wrongful acts of its servant. On the other hand, if Brunke was in the exercise of a power conferred upon defendant corporation for its private benefit, then the defendant is liable for the wrongful acts of its servant, as in the case of a private individual. [Murtaugh v. St. Louis, 44 Mo. 479; Williams, Municipal Liability for Tort, see. 11.] In Hilsdorf v. St. Louis, 45 Mo. 94, it is said:

“Corporations, whether municipal or aggregate, are now held to the same liability as individuals, and will not be permitted to screen themselves behind the plea that they are impersonal, and that their acts are but the acts of individuals; and if an agent or servant of a corporation, in the line of his employment, shall be guilty of negligence or commit a wrong the corporation is responsible in damages. ’ ’

The making and improving of the streets by the city and keeping them in repair, is a ministerial function, and relates to corporate interests only. It is well settled in this State that a municipality is liable for negligence in the construction of streets or sewers. [Broadwell v. Kansas City, 75 Mo. 213; Worth v. Springfield, 78 Mo. 107; Wegmann v. Jefferson City, 61 Mo. 55; Thurston v. St. Joseph, 51 Mo. 510.]

In McKenna v. St. Louis, 6 Mo. App. 320, it is said:

. “Municipal corporations are considered by law in two aspects. In one, their functions are chiefly ministerial, and relate to corporate interests only. These include the making and improving of streets, the construction of sewers and other improvements and keeping them in repair, the holding of property for corporate purposes, etc. But as to these matters of strictly corporate interest there are often duties to be performed of a legislative or judicial character. In the other aspect, the corporation is regarded as holding a quasi-delegated sovereignty for the preservation of the public peace and safety and the prevention of crime. This includes the maintenance of a police force, the appointment of officers charged with the public health, the establishing of regulations for the suppression of vice, and other matters of public concern in which all people have a common interest which it is the chief end of every good government to protect.” The same rule is announced in Donahoe v. Kansas City, 136 Mo. 657.

In Bullmaster v. St. Joseph, 70 Mo. App. 60, it is said the authorities “make plain the distinction between those powers of a municipal corporation which are public governmental functions delegated to it by the State and conferred upon it exclusively for the public good, such, for instánce, as that to maintain a city workhouse or hospital, or that to abate, prevent and remove nuisances, or that to establish a fire department and to pass ordinances to extinguish fires, or those relating to the public peace and good order, or the suppression of vice and immorality, or preserving the public health, caring for the poor, or providing for education, or those relating to the general welfare coupled with judicial or legislative discretion touching the manner and mode of their exercise and the like; and those powers which are of a proprietary or private character which have been conferred for the private advantage of the municipality, as, for instance, those to construct and maintain sewers, to provide water for the use of the city and its inhabitants, or to make and repair streets, and other like powers granted for private municipal advantage and emolument. The officers of the municipality exercising the former class of powers are to be regarded as agents of ‘the greater public,’ while those of the latter are the agents of the lesser public. When the agents of ‘the greater public’ are guilty of nonfeasance or misfeasance in the exercise of any one of the former class of powers the principles of the maxim of respondeat superior do not apply, hut the maxim does apply when the agents of the lesser public are guilty of nonfeasance or misfeasance in the exercise of the latter class of powers.”

In Maxmilian v. Mayor, 62 N. Y. 160, it is said:

“And the duty of keeping in repair streets, bridges and other common ways of passage, and sewers, and a liability for a neglect to perform that duty, rests upon, an express or implied acceptance of the power and an agreement so to do. It is a duty with which the city is charged for its own corporate benefit, to be performed by its own agents, as its own corporate act. [Conrad v. Trustees of Ithaca, 16 N. Y. 158.] It is not always easy to say within which class a particular case should be placed. But when it is determined that the power and duty are given and taken for the benefit of the corporation as a corporate body, and the act to be done is to be done by it through agents of its appointment and under its control and power, of removal, there is no doubt of its liability for negligent omission or negligent attempt at performance. When the powers created and duly enjoined are given and laid upon officers to be named by the corporation, but for the public benefit and as a convenient method of exercising a function of general government, and the corporation has no immediate control nor immediate power of removal of those officers, nor of their subordinates and servants, then it is not liable for their negligent omission or action.”

It is true there are cases, some of which are cited in behalf of defendant, which are seemingly supposed by defendant’s counsel to be in conflict with the views we have expressed, but they are clearly distinguishable, and have for their bases principles quite in harmony with those relied upon as supporting this action. When the duty is upon the city itself and not upon public officers appointed by it, when it accepts the duty and has the power to perform it, and by its own agents, servants or employees, does the work, and does it in a negligent way, or while in the line of their employment, its servants injure some one, whether intentionally or by carelessness, it may be held liable. [Jones v. New Haven, 34 Conn. 1.]

The petition charges that it was the duty of defendant city to keep its streets in repair; that it was in the act of repairing the same when the injury occurred; that Fritz Brunke was the agent and servant of the defendant in making the repairs, and that the injury was inflicted in trying to prevent the repairs from being interfered with.

It is a well-settled principle of law that when an agent or servant is employed to perform a certain piece of work and, while in the line of his duty, he injures another, even though he exceeds his authorized powers or disobeys his injunctions, his employer is responsible to the party injured for damages sustained by reason of such injury. [Harriman v. Stowe, 57 Mo. 93; Douglass v. Stephens, 18 Mo. 362; Minter v. Railroad, 41 Mo. 508; Garretzen v. Duenckel, 50 Mo. 104; Ephland v. Railroad, 137 Mo. 187; Perkins v. Railroad, 55 Mo. 201; Dillon on Municipal Corporations (4 Ed.), sec. 974.]

Our conclusion is that the petition states a cause of action, and that the demurrer thereto should have been overruled. The judgment is therefore reversed and the cause remanded, to be proceeded with in accordance with the views herein expressed.

All concur.


author: FOX, J.

text:
    METROPOLITAN STREET RAILWAY COMPANY, Appellant, v. WALSH et al.
    Division Two,
    June 19, 1906.
    1. CONDEMNATION: Evidence of Value: Price Paid in Vicinity: Exception. In arriving at the fair market value of property sought to be condemned by a railway company, evidence of what the company recently paid by purchase for other like property in the immediate vicinity similarly situated, to be used for like railroad purposes, is not competent. That is an exception to the well-established rul^ that a reliable method of arriving at the fair market value is to consider testimony of recent bona-fide sales of similar lands in the vicinity.
    2. -: -: -: Purpose for Which Purchased: Knowledge of Vendor: No Evidence: Assumed at Trial. Where there was no positive and direct testimony of the purposes for which other similar property in the vicinity was recently purchased by the railroad company, and none that the vendors knew that it was being purchased for the purpose of being used for railroad purposes in connection with the property sought to be condemned, yet if both sides assumed at the trial that it was purchased for that purpose, it will be held on appeal that it was purchased for that purpose.

      3. -: -: -: Invited by Respondent: Waiver. Where the landowner, in order to establish the fair market value of the land sought to be condemned, introduced evidence of the price paid by the railroad company for similar land in the vicinity recently purchased, and that testimony was objected to as not being competent, and the court’s ruling admitting it excepted to, the railroad company did not waive its right tohave the incompetency of that testimony considered on appeal by subsequently introducing evidence on its part of the price at which it bought other tracts in the vicinity to be used for the same purpose as that sought to be condemned is to be put. The error was invited by the land-owner, and the company was entitled to make the best of the situation confronting it.
    4. -: -: Interested Witness: Opinion. A witness having an interest in the property, familiar with the property and the market value in the neighborhood, is competent to express an opinion in relation to its value, notwithstanding such interest; but the opposite party may show that interest for the purp'ose of affecting the weight to be attached to his testimony.
    5. -: -: Acquisition of Neighboring Property By Others. Testimony to show an increase in the value of the property sought to be condemned, by the acquisition by large business concerns of property in the neighborhood, is not competent unless such acquisition was made prior to the condemnation proceeding.
    6. -: -: attempt at Purchase. It may be proper to show that, prior to the institution of condemriation proceedings, there was a failure to agree upon the price to be paid for the property, but such showing is not essential, nor is it competent to go into the details of the negotiations or show the different amounts offered.
    7. -: -: Location: Switching Purposes. To show elements of the value of the property sought to be condemned, its location near certain railroad tracks and that it was suitable for switching purposes may be shown.
    8. -: -: Offers to Sell to Owner: Price: Cross-Examination. Testimony of a witness that he had offered to sell to a defendant in the condemnation proceeding property near the property sought to be condemned at a certain price, is not competent on behalf of plaintiff. And cross-examination of one of defendant’s witnesses as to the price certain persons offered to sell such properties to him should be excluded.
    9. -: Instruction: Market Value. It may not be error to instruct the jury that the market value of land is “what it would fairly bring in the hands of a prudent seller at liberty to fix the time and conditions of sale,” but it is better to follow the definition contained in the instructions approved in Railroad v. Porter, 112 Mo. 369, and in the Stock Yards Case, 120 Mo. 541.
    10. -: -: Compensation. The general rule in estimating the compensation to be allowed the owner whose land has been appropriated to a public use is “that reference should be had to the use for which the property is suitable, having regard to the existing business or wants of the community or such as may reasonably be expected in the immediate future.” And guided by this rule, instructions numbered 4 and 5 for defendants are approved.
    11. -: -: Refused: Elements of Value: Not Embraced in Those Given. An instruction offered by plaintiff in the nature of a detailed explanation of what is meant by market value, cautionary in its character and particularly pointing out to the jury in detail how the market value is to be determined, and embracing certain features not embraced in other instructions given, in all respects a correct instruction for the plaintiff, should be given. But where the instructions given fully cover all the elements of market value and correctly define that term, others on the subject, which are mere repetitions, should not be given.
    12. -: Excessive Damages: Award of Commissioners. It is with great reluctance that appellate courts undertake to interfere with the findings of the jury as to the amount of damages the landowner has received as the result of the condemnation of his property for a public use. He is entitled to receive only the fair market value of his property, but the verdict can be approved only when it is reached from a consideration of testimony recognized by the law. But a wide difference between the award made by the commissioners and that made by the? jury is no ground for setting aside the verdict as being excessive.
    Appeal from Jackson Circnit Court. — Hon. Jas. H. Slover, Judge.
    Reversed and remanded.

      John H. Lucas for appellant.
    (1) The court erred in admitting incompetent evidence. a. Michael Walsh: Value of property, b. John Donnelly: Number of square feet in this and other property, c. George Hoffman: Argumentative and speculative, d. Mary Miller: Price plaintiff paid for her property, e. James H. Looney: Price paid for his property, f. Ed P. Kennedy: • Comparison with other properties, g. P. H. Madden: comparison with other property, h. J. Scott Harrison: Offers made by plaintiff for defendants’ property, i. Comparison with other property, a., b., c., d., e., f.: Railroad v. Calkins, 90 Mo. 543; Springfield v. Schmook, 68 Mo. 396; Railroad v. Heiger, 139 Mo. 320; Peoria Gas Co. v. Railroad, 146 111. 372; Markowitz v. Kansas City, 125 Mo. 490; Railroad v. McGrew, 104 Mo. 298; Railroad v. Eby, 152 Mo. 611. g. h.: Howard v. Coshow, 33 Mo. 118; Pier v. Heinrichoffen, 52 Mo. 333; Wilson v. Rutherford, 69 Mo. 312. (2) The court erred in. rejecting competent evidence, viz: a. Michael Walsh: Offers of other property made to him that was adjacent to the property in controversy, b. M. W. Barber: Offers to sell other property adjacent to that in controversy. Railroad v. Fowler, 142 Mo. 677. (3) The court erred in giving instructions asked by defendants. Railroad v. Stock Yards Co., 120' Mo. 541; Clark v. Kitchen, 52 Mo. 317; Greer v. Parker, 85 Mo. 107; Camp v. Wabash, 94 Mo. App. 284; Bank v. Murdock, 62 Mo. 70; Tibbe v. Kamp, 154 Mo. 545. (4) The court erred in refusing to give instructions asked by plaintiff. Railroad v. Knapp-Stout & Co., 160 Mo. 408; Railroad v. Stock Yards, 120 Mo. 541; Richard v. Barnard, 9 Hun 104. (5) The court erred in overruling the motion of plaintiff for a new trial. The verdict is the result of passion and prejudice.

      Lathrop, Morrow, Fose & Moore and Cyrus Crane for respondent.
    (1) Admission of Evidence, (a) Walsh’s testimony as to value was admissible. He was a defendant, one of the owners, familiar with the property, knew its value. Thomas v. Mallinckrodt, 43 Mo. 65; Tate v. Railroad, 64 Mo. 144; Railroad v. Calkins, 90' Mo. 538; Railroad v. DeLissa, 103 Mo. 130 ; Railroad v. Stock Yards, 120 Mo. 541; Railroad v. Donovan, 149 Mo, 93. (b) John Donnelly’s testimony: The lots were irregular in shape. It was therefore proper to show the quantity of land, (c) Geo. Hoffman: It is proper to show what use can be made of the land and its value by reason thereof. 2 Lewis on Eminent Domain, p. 1054; Boom Co. v. Patterson, 98 U. S. 407; Bridg’e Co. v. Ring, 58 Mo. 491; Webster v. Railroad, 116 Mo. 118; Railroad v. McGrew, 104 Mo. 290. (d) Miller & Looney testimony: It is proper to show what was paid for other similarly situated property. Railroad v. Clark, 121 Mo. 185; Railroad v. Fowler, 142 Mo. 678; In re Boulevard, 127 Mo. 422; Markowitz v. City, 125 Mo. 490. The record does not admit of the objection plaintiff is now making. Railroad v. Clark, 121 Mo. 185; Railroad v. Heigler, 139 Mo. 315; Young v. Thrasher, 61 Mo. App. 413. (e) Madden’s cross-examination: No error. Plaintiff had already shown the same thing, (f) Harrison cross-examination: No error. Plaintiff first went into offers made to Walsh. Plaintiff’s instruction 5 excluded all offers and settles the matter. (2) Evidence properly excluded. Offers to sell not admissible. 10 Am. and Eng. Ency. Law, 1157. (3) Defendants’ instruction No. 3 correct. 10 Am. and Eng. Ency. Law, 1152; Railroad v. Porter, 112 Mo. 369. Nos. 4 and 5 were correct. Authorities under point 1, c, supra. (4) Defendants’ instructions. Those refused were fully covered by defendants’ given No. 3 and defendants’ Nos. 3 and 4. (5) Verdict not excessive.
   FOX, J.

This cause is here upon appeal by the railway company from a judgment of the Jackson Circuit Court assessing damages for property taken in a condemnation proceeding begun by the plaintiff railway company.

It can serve no useful purpose to reproduce the petition upon which this proceeding was predicated, but it will suffice to state generally the purpose of it. On June 20, 1902, the Metropolitan Street Railway Company filed in the office of the clerk of the circuit court of Jackson county, Missouri, its petition, wherein it sought to appropriate for its power house, certain lands of the defendants, that is to say, lot 323, "block 33, Kansas City, Missouri. On-July 18, 1902, in pursuance of the filing of the petition as herein indicated, commissioners were appointed by the circuit court, and attending to the discharge' of the duties imposed upon them by virtue of that appointment, proceeded to examine the lands sought tp be condemned, for the purpose of making an assessment of damages by reason of the taking of the property mentioned in the petition, and after such examination assessed the damages sustained by the defendants by reason of the condemnation of their property at the sum of forty-two hundred and sixty dollars, and filed their report of such assessment in the office of the clerk of the circuit court of Jackson county, Missouri. - On August 4, 1902, defendants filed in the circuit court in which this proceeding was pending, their exceptions to the commissioners’ report and demanded a trial by a jury, which was by the court awarded to them. On March 3, 1903, a trial by a jury was had upon, the question of damages sustained by reason of the condemnation of the property of defendants.

It is not essential to the determination of the legal proposition involved in this proceeding to detail the testimony introduced upon this trial; it is sufficient to say that there was testimony by both plaintiff and defendants as to the value of the property taken which was very much in conflict as to the amount of the value of the property. - This testimony introduced on the "part of the respondents, to which objections were urged on the part of the appellant, as well as the testimony which was offered on the part of the appellant and excluded, will be referred to and considered during the course of the opinion, hence there is no necessity for reproducing it in this statement. At the close of the evidence, at the request of the defendants, the court instructed the jury as follows:

“1. The court instructs the jury that under the Constitution of the State private property cannot be taken for public use without just compensation being paid to the owner, and the law of the State gives the owner the right to have such compensation determined by a jury. The plaintiff in this case has taken lot 323 in block 33 in Old Town, an addition to Kansas City, which was the property of defendants. Your verdict, therefore, must be for defendants, and in assessing the just compensation to be paid them you must allow them the fair market value of said lot as it is shown by the evidence to have been on July 18, 1902.
“2. You will not, in determining the value of defendants’ land, consider or be in any way influenced by the fact that the commissioners allowed the defendants the amount stated in their report read to you. Such report is not admitted as evidence of the value of said land.
“3. By the term ‘fair market value-,’ as used in these instructions, is meant the price which property will bring when it is offered for sale by one who is willing, but is not obliged, to sell it, and is bought by one who is willing or desires to purchase, but is not compelled to do so. It does not mean the price which the property would bring under a forced sale, or where the party selling is compelled to or under the necessity of selling, but what it would fairly bring in the hands of a prudent seller at liberty to fix the time and conditions of sale.
“4. In determining the value of the land in controversy, taken by plaintiff, the jury may take into consideration its location, the uses and purposes for which the property is suitable or adaptable considering such location, and having regard, not alone to the existing business wants of the community in which the same is located, but also to such uses as may be reasonably expected in the near future, together with all the surroundings and conditions as shown in evidence in this case; and you may also take into consideration other bona-fide sales of property in the immediate vicinity and similarly located, made at or about the time the commissioners made their report in this case, to-wit, July 18,1902.
“5. In determining the uses and purposes for which defendants’ lot was suitable or adaptable, the jury are not confined solely to the use, if any, made of said lot at the time it was taken by plaintiff, but may also consider such uses, if any, for which it was reasonably adaptable at that time, considering its location and surroundings.”

At the request of the plaintiff the court gave instructions numbered 3, 4 and 5, which were as follows:

“3. The market value is hot to be determined by the value of the same to the plaintiff, or of the plaintiff’s necessity for acquiring it.- This consideration must in no way be allowed to affect your determination of the value of the property sought to be appropriated by the plaintiff in this proceeding.
“4. The just compensation, or in other words, the damages to which the defendant is entitled, is the fair market value of the defendants’ property at the time of the appropriation by the plaintiff.
“5. You are further instructed that in considering the question of the actual value of the property in controversy you will exclude from your mind all testimony relative to any offers that might have been made or claimed to have been made by the railroad company through its president or any other person. The only purpose for the admission of such testimony being to show that the plaintiff had attempted to agree with the defendants, and all testimony in relation to any offer that might have been made upon the part of the railway company is hereby withdrawn and excluded from your consideration for any other purpose than that stated. ’ ’

Plaintiff requested the court to give the following instructions, numbered 1 and 2, which request was by the court refused, to which ruling plaintiff preserved proper exceptions:

“1. The market value of the property means its actual value, independent of its appropriation by the plaintiff, that is, the fair value of the property as between one who wants to purchase and one who wants to sell it; not what could be obtained for it in peculiar circumstances when greater than its fair price could be obtained; nor its speculative value; nor the value obtained through the necessities of another. Nor, on the other hand, is it to be limited to the price which the property would bring when forced off at auction under the hammer. The question is if the defendants wanted to sell their property what could be obtained for it upon the market from parties who wanted to buy and would give its actual value?
“2. The market value of the property means its actual value independent of the purposes for which it is to be used by the railroad company; that is, the fair value of the property as between one who wants to purchase and one who wants to sell it. Not what could be obtained for it in peculiar circumstances when greater than its fair price could be obtained; nor its speculative value; nor the value obtained through the necessities of another; nor, on the other hand, is it to be limited to that price which the property would bring when forced off at auction under the hammer. The question is, if the defendant wanted to sell his property, what could be obtained for it upon the market from the parties who wanted to buy and would give its full value? The market value is not to be determined by the value of the railroad company or the railroad’s necessity for acquiring it. This consideration must in no way be allowed to affect the determination by the jury of the value of the property sought to be appropriated by the railroad company. ’ ’

The cause was submitted to the jury upon the evidence and instructions of the court, and they returned their verdict finding the issues for the defendants, and assessing their damages at $14,500', as a just compensation to be paid for the land described in the petition sought to be appropriated by the plaintiff, for its use.

Motion for new trial was timely filed and by the court overruled. Judgment was entered in accordance with the verdict returned and from this judgment plaintiff prosecuted its appeal to this court and the record is now before us for review.

OPINION.

The record in this cause discloses numerous assignments of error respecting the action of the court during the progress of the trial. The complaints of appellánt, as indicated in the brief, as well as in oral argument of learned counsel for appellant, are directed mainly to the admission of incompetent evidence offered by respondents and the exclusion of competent evidence offered by appellant.

I. The most serious proposition with which we are confronted in this cause is the admission of the testimony offered by respondents as to the amount paid by the railway company for the Miller and Looney properties, located in the same block, near the lot of respondents, sought to be appropriated by appellant in this proceeding. Doubtless this testimony as to the sale by Mrs. Miller and Looney to the appellant railway company, was introduced and admitted upon the theory that it was within that rule which authorizes the introduction of evidence of sales of other similar property in the neighborhood at about the same time, for the reason that it tends to show the fair market value of the property sought to be condemned. The first inquiry as to the Miller and Looney property which had been purchased by the railway company, was made of witness Donnelly. The simple inquiry in respect to this property made of him, was as to the area or number of square feet in the Miller and Looney tracts, as well as the number of square feet in the Walsh lot, the property which is sought to be condemned by this proceeding. The inquiry of this witness as to the area of these different lots of land, was manifestly preparatory to the introduction of the owners of the Miller and Looney lots as witnesses to testify as to the amounts actually paid them for the property by the railway company. Subsequently the owners were introduced and did. testify. That we may'fully appreciate the testimony of Mrs. Miller and Mr. Looney it is well to reproduce their testimony so far as it is applicable to the question now being considered. The inquiry was made of Mrs. Miller as to the sale of her property as follows:

“Q. Kindly state to the jury how much it was sold for?
“By Mr. Lucas: Was it sold to the Metropolitan Street Railway Company? A. I don’t know; I think so.
“Mr. Lucas. We object to the question as incompetent, irrelevant and immaterial, and not a proper criterion for fixing the value of this property.
“The court overruled the objection, to which ruling plaintiff at the time duly excepted.
“Q. By Mr. Crane: State what it sold for? A. $15,000.”

The following testimony was given by James H. Looney in respect to the sale of his property:

“ Q. Please state how much you got for it.
“Mr. Lucas: I make the same objection to the testimony of Mr. Looney on that point that I made to Mrs. Miller’s testimony. Any settlement that the plaintiff company made with him should not he taken as a criterion or standard of value in that neighborhood.
“The Court: You will have an opportunity to explain that; but the testimony is competent.
“To this ruling of the court plaintiff at the time duly excepted.
“Q. What did you sell it for? A. Something over $21,000.
“Q. And you sold it last June? A. Yes, sir.”

Was this testimony admissible and does it fall within the rule of evidence of that character heretofore indicated? This is the most important question presented to our consideration in the disclosures of the record before us.

¡"The rule that sales of similar property to that involved in the condemnation proceeding, made in the neighborhood about the same time, is admissible to aid the jury in determining the damages to which the owner was entitled, is well settled in this State, as well as in many other States. - The object in condemnation proceedings is to ascertain the general market value of property sought to be appropriated, and it was expressly ruled by this court in Railroad v. Clark, 121 Mo. l. c. 185, that “no more reliable method of determining the fair market values of lands can be reached than that derived from bona-fide sales of similar lands in the vicinity.”: In support of the rule announced in that case this court cited “Lewis on Eminent Domain, section 443; 6 Am. and Eng. Eney. Law, 619, and cases cited by each. ’ ’ The rule announced in the Clark case above cited has never been departed from in this State, but was subsequently followed and approved in In the Matter of Forsyth Boulevard, 127 Mo. 417; Markowitz v. Kansas City, 125 Mo. 490, and Railroad v. Fowler, 113 Mo. 458.

Mr. Lewis, in his treatise upon the Law of Eminent Domain, very clearly indicates where the weight of authority rests upon this question. He says: ‘ The propriety of allowing proof- of sales of similar property to that in question, made at or about the time of the taking, is almost universally approved by the authorities.” It is further said by this same eminent author upon this subject, that “in regard to the degree of similarity which must exist, between the property concerning which such proof is offered and the property taken, and the nearness in respect of time and distance, no general rule can be laid down. These are matters with which the trial judge is usually conversant, and they must rest largely in his discretion.”

This almost universally approved rule of evidence in respect to determining the value of property sought to* be appropriated in condemnation proceedings, is based upon the idea that sales, when made in a free and open market, where a fair opportunity for competition exists, is a very important factor to be considered in determining the value of the particular property sought to be condemned, provided, of course, that such sales relate to property with at least a reasonable degree of similarity, with respect to character and location, and that such sales have reference to sales of property made at or about the same time of the institution of the suit in which it is sought to condemn the property, the value of which is to be ascertained in the proceeding.

The crucial question with which we are confronted upon this proposition, is as to whether or not the sales of the Miller and Looney property, which were made to the Metropolitan Street Railway Company, who is now seeking to condemn the property involved in this proceeding, fall within the rule as heretofore indicated, or is it within any clearly recognized exception to such rule. Mr. Lewis, the eminent author upon the subject of Eminent Domain, heretofore cited, and whose announcement of the rules of law applicable to the suject ©f ascertaining the value of property-sought to he condemned, have been uniformly approved by this court, announces the doctrine that testimony offered for the purpose of showing what the party who is seeking to condemn property by a proceeding has paid for other property, does not fall within the general rule as heretofore indicated, and is incompetent for the purpose of ascertaining the value of property sought to be appropriated in a condemnation contest. The learned author clearly points out the reason and ground upon which such exception to the genera] rule is predicated. In treating of this subject he says: “What the party condemning has paid for other property is incompetent. Such sales are not a fair criterion of value, for the reason that they are in the nature of a compromise. They are affected by an element which does not enter into similar transactions made in the ordinary course of business. The one party may force a sale at such price as may be fixed by the tribunal appointed by law. In most cases the same party must have the particular property, even if it costs more than its true value. The fear of one party or the other to take the risk of legal proceedings ordinarily results in the one party paying more or the other taking less than is considered to be the fair market value of the property. For these reasons such sales would not seem to be competent evidence of value in any case, whether in a proceeding by the same condemning party or otherwise.”

The doctrine announced by this learned text-writer, in the nature of an exception to the general rule, upon the subject of evidence applicable to proceedings of this character, finds support in many well-considered cases in other States. In Peoria Gas Light Co. v. Railroad, 146 Ill. 272, this proposition was fully discussed and the opinion by the learned judge in that ease exhaustively reviewed all the authorities upon the subject now in hand. The general rule as applicable to the admission of testimony of sales' of similar property, which has uniformly been followed by this court, was fully approved in that case, but on the other hand when the court reached the proposition as to' the admissibility of the consummation of sales by the condemning party and what such party jjaid for other property for the purpose of determining the value of the property sought to be appropriated in the proceeding, it equally, with as strong and convincing reason and logic, announced its approval of the law as stated in the nature of an exception to the general rule by Mr. Lewis on the subject of Eminent Domain. In that case the question was sharply presented as to the admissibility of such testimony, evidence being admitted by the trial court as to what the railway company which was seeking by proceeding to condemn certain property, has paid to other property-owners for their lands along the right of way. After reviewing all the authorities, the court thus announced its conclusion: “We are referred to no decision in this State in which the opposite view as to the admissibility of evidence of the character of that now under consideration has been taken. In fact, so far as we are aware, the question has never been passed upon by this court, and we are therefore at liberty to adopt the rule which seems to us to be the most fully supported by reason and authority. Acting upon that principle, we are disposed to concur in the rule supported by the authorities above cited, and to hold that the evidence of the prices paid by the railroad company to other property-owners for right of way along its line was incompetent and was improperly admitted.”

The Supreme Court of Illinois in the Cas Light Company case, above cited, summoned in support of the conclusions reached, a case decided by this court, that is, the City of Springfield v. Schmook, 68 Mo. 394, and while that case was distinguished from the cases of Railroad v. Clark, 121 Mo. 169, and Railroad v. Heiger, 139 Mo. 315, the principles therein announced as applicable to the admissibility of evidence, have never been departed from or overruled in any of the subsequent cases by this court. It is but fair to state that in the Schmook ease the point involved was not precisely on all-fours with the question now under discussion. In that cáse the evidence was introduced to show the damages assessed and allowed to other persons, in order to establish the amount of the injury of the defendant in that cause, by comparison; however, it is applicable to the discussion of this question for the reason that it involves a similar principle upon the subject of the admissibility of testimony where it is sought to ascertain the value of land in a condemnation proceeding. Hough, J., in speaking for this court in that case, used this language: “Speculative, remote and consequential injuries and benefits are not to be allowed. Only those injuries are to be considered which are peculiar to the person whose property is taken, and are such as pertain to the ownership, use and enjoyment of the particular parcel of land, a portion of which is taken. [Cooley’s Con. Him. (3 Ed.), 566.] We do not think it was competent for the defendant to show what other persons had been allowed for their property, in order to establish the amount of his injury by comparison. The assessment of damages in the other cases may have proceeded upon incorrect principles, or the amount paid may have been the result of contract and in excess of the true value. Such a mode of inquiry was improper, because it furnished no accurate standard for estimating the defendant’s damages, and was likely to lead to the introduction of many collateral issues. [Mayor of Lexington v. Long, 31 Mo. 369.]”

After a most careful consideration of the rule announced by Mr. Lewis in his treatise upon the law of Eminent Domain, that testimony as to what was paid by the party who seeks to condemn property to other parties for lands to be used in connection with the same purpose for which the land sought to he appropriated was to he used, Is inadmissible in the ascertainment of the value of the land involved in the proceeding to condemn, we have reached the conclusion that such rule of evidence as applicable to proceedings of this character is predicated upon sound legal as well as logical reasons and should be followed.

It certainly will not be seriously denied that there is a manifest distinction between purchases or sales made in the ordinary course of business and sales or purchases made by parties through the necessity of acquiring property for some public use. Take the facts of this case;.the Metropolitan Street Railway Company desired to acquire for public use for the purposes of its said railroad, the right of way therefor and for its tracks, side tracks, power house site and terminals, certain lands in a particular locality in Kansas City, Missouri. In pursuance of the purpose to locate said tracks, side tracks and power house and terminals at said contemplated location in Kansas City, the necessity for carrying out such purpose necessarily required the railroad company to secure the land upon which these railroad improvements were to be constructed. They proceeded as contemplated by law to secure by purchase the lands upon which these improvements for public use were to be constructed. They purchased what is known in this proceeding as the Looney lot and paid for it $21,000.00‘. They were unable to agree with the respondents in this proceeding upon the price for the lot which is sought to be condemned, hence followed the institution of this suit which seeks to appropriate this property. This Looney lot was only separated from the lot of respondents which is sought to be appropriated in this cause by a sixteen-foot alley, and while there is no witness who expressly declares that this Looney lot was purchased for the purpose of applying it to the same use to which the lands of respondents were sought to be applied, yet we take it that, when this entire record is considered, the conclusion is inevitable that the purchase of the Looney lot was purchased for the same purpose as the lot of respondents sought to be secured by this proceeding. In our opinion this testimony falls within the exception to the general rule as heretofore discussed and was inadmissible as a fair criterion of value of the property involved in this proceeding, and should have been excluded by the court.

It is insisted by respondents, however, that under the disclosures of the record it does not appear affirmatively that the Looney lot was purchased for the purpose of being used in connection with the property sought to be condemned for the construction of the railroad improvements designated in the petition for condemnation. It is earnestly argued and the question is ably presented by learned counsel for respondents, that it did not appear to the court at the time this evidence was offered, nor does it now appear, that the vendors knew that such property was being purchased for such use. We have examined very carefully the entire record in this proceeding and it is sufficient to say that we are unable to give our assent to this insistence. While, as before stated, there was no positive or direct testimony as to what purposes the purchases of the Looney and Miller property were made for, yet it is clearly indicated by the record that not only the court, but counsel on both sides of this case assumed and took it for granted that such property was sought for the purposes indicated in the petition. The Metropolitan Street Railway Company was organized for the purpose of operating a street railway in Kansas City, Missouri; it was by no means engaged in the real estate business, and only sought to acquire property when the necessities of the successful operation of their business required it. There was a fixed purpose on the part of the railway company to locate its power house, tracks and terminals as alleged in the petition in block 33. Mr. Walsh, one of the respondents in this canse, indicates very clearly that he knew for what purpose they were undertaking to secure property in block 33. In his testimony he says that Mr. Madden who came to see him in respect to buying the property for the street railway company told him about it and further stated that Mr. Madden said that they thought they could do without the property on the north end of the block, and Mr. Walsh replied that “I told them I would be very glad if they would.” This clearly indicates that Mr. Walsh fully understood and recognized that they were undertaking to secure property in that block for the purpose of locating the railway company’s power house, tracks, terminals, etc. In addition to this, Mr. Corrigan testified that, in a conversation with Mr. Walsh about, the purchase of his property, he told him that the company did not want to be pushed into court to make enemies for the company and said to Mr. Walsh that he was the only man practically that the company could not settle with or had hot settled with. In other words, the substance of that conversation was that Mr. Corrigan told Mr. Walsh that he could settle with or had settled with the other land-owners in that block for the property desired for the purposes indicated in the petition. In fact, a careful analysis of this record convinces us beyond question that the court and counsel for respondents and Mr. Walsh, one of the respondents, assumed that it was a fact that the Looney and Miller property was purchased as a part of the property upon which the railway improvements were to be constructed, and further assumed that all that was necessary to render such sales competent evidence in this proceeding was to show that such property had been obtained without a law-suit or the damages assessed in a condemnation proceeding. This is indicated by the cross-examination of respondents’ counsel, Mr. Corrigan. After the witness had stated that he purchased the Looney property and paid $21,000 for it, the simple inquiry was made as to whether or not that purchase was made without a lawsuit and without any condemnation proceedings or anything of that kind.

■ The record discloses clearly that the appellant’s counsel did not regard the fact that' the Looney and Miller property had been purchased to be used for the same purpose as the property sought to be condemned, was in any way controverted, and we think rightfully' assumed that such fact was taken for granted. The objection of appellant’s counsel to the introduction of Mr. Looney’s testimony makes it apparent that counsel were assuming that the purchase of the Looney and Miller property was made to avoid condemnation proceedings. Counsel stated to the court as a ground of objection to Mr. Looney’s testimony, that any settlement that the plaintiff company made with him should not be taken as a criterion or standard of value in that neighborhood. This objection clearly indicated to the court that counsel in this case were proceeding upon the theory, so far as the purchase of the Looney and Miller property was concerned, that it was made by a private agreement, rather than to resort to a condemnation proceeding. The Looney property and the Miller property were located in the same block of the property of respondent which is sought to be appropriated by this proceeding. Mr. Walsh knew, for he so testified, that the railway company was seeking to acquire certain property in that block for the purpose of erecting certain improvements. The railway company had determined on locating the improvements upon land in that block, and only a short time before this condemnation proceeding purchased the Looney and Miller property, and in our opinion, under the disclosures of the record, there can be but one legitimate inference in respect to the purchase of the Looney and Miller property, and that was that it was being sought for the same purposes as the property involved in this proceeding, and we are convinced that the court, as well as the counsel, acted upon such natural and legitimate inference and assumed that such property was purchased for the purposes as herein indicated. It is apparent from this record that the court did not admit this testimony on the ground that it was not made to affirmatively appear that it was purchased for the same purposes as the property sought to be condemned, but simply upon the theory that the amount paid for such property was not ascertained by reason of any condemnation proceeding, but by a private agreement, and for that reason the court doubtless thought that it did not fall within any exception to the general rule in respect to the proof of sales of other property. In this we are of the opinion that the learned trial judge was in error, and that the sales of the Looney and Miller property to the railway company were not a fair criterion by which to determine the value of the property involved in this proceeding.

It is, however, insisted by learned counsel for respondents that the appellant should not be permitted to avail itself of this error, for the reason that the railway company, when the time arrived for the introduction of its testimony, proceeded along the same lines and committed the same error complained of, and introduced testimony showing the prices paid by appellant for other property in that locality. This contention could be very well maintained if appellant had opened this cause and proceeded first to introduce such testimony; then clearly having invited the commission of such error, it could not justly complain of it. But that is not this case; the respondents, upon the exceptions filed to the report of the commissioners, opened the cause and proceeded with the introduction of their testimony, and offered for the first time the testimony of witnesses, Mrs. Miller and Looney, as to sales made by them to the railway company. To this testimony appellant interposed specific objections, assigning the reasons for the same, and the court overruled the objections and admitted the testimony. Under these circumstances, the court having held that such testimony was competent, appellant was then clearly entitled to make the best of the situation confronting it that could be made, and endeavored to rebut the testimony to which it had timely made objections and saved its exceptions to the action of the court in admitting it. The appellant did not invite the commission of this error, nor can it be deprived, under the circumstances, of urging it in this court, simply for the reason that it undertook to meet and rebut the incompetent testimony offered first by the respondents, along the same lines as pursued in the first instance by them. This insistence must be ruled adversely to respondents, and it must be held that the action of the court in admitting the testimony heretofore pointed out constitutes reversible error.

II. We have carefully considered the complaint of appellant in respect to the admission of the testimony by Mr. Walsh and it is sufficient to say as to that assignment of error.that while the witness was interested in the property, this interest appellant of course had the right to show, for the purpose of affecting the weight to be attached to his testimony, but it appears that he was familiar with the property and its location and had been for a number of years, and sufficiently acquainted with the market value of the property in that neighborhood as. would warrant the court in permitting the witness to express an opinion in relation to such value. There was no error in permitting him to give an opinion as to the market value of the property involved in this controversy.

III. Our attention is directed by appellant to other numerous assignments of error in respect to the admission of evidence offered by respondents. As this cause must be retried for the errors heretofore pointed out, it will only be necessary to briefly notice the further complaints of appellant upon the subject of improper admission of testimony.

It was sought in the cross-examination of witness Madden to show an increase in value of property in the neighborhood of the property sought to be appropriated by reason of the acquisition of property in that vicinity by Armour and Swift. The court permitted this class of testimony upon the suggestion of respondents that it would be subsequently shown that the holdings of Armour and Swift in that neighborhood were prior to the time of this condemnation proceeding. It is only necessary to suggest upon a retrial that unless Armour and Swift’s acquisition of property in that neighborhood was prior to the condemnation proceedings; the testimony should be excluded, hence it is unnecessary to express an opinion as to whether the admission of this testimony would or would not constitute reversible error.

There was also an inquiry made of witness Harrison as to his knowledge of what price the railway company had offered for this property prior to the institution of the condemnation proceedings, and the further inquiry as to whether or not the sum of seven or eight thousand dollars had been offered. It will suffice •to suggest that while it may be proper to show that there was a failure to agree upon the amount to be allowed for the property desired for public use, it was not essential, nor was it competent to go into details of the negotiations for the purchase of the property and show different amounts offered to the respondents for it.

It was‘expressly ruled in the case of Railroad v. McGrew, 104 Mo. l. c. 298, that offers to agree, which were required to be made before legal proceedings could be instituted, having failed, all prior negotiations or offers were at an end and testimony of that character was inadmissible. This ruling in the McGrew case was followed in the case of Railroad v. Eby, 152 Mo. 606. However, there was no error in respect to this particular contention for the reason that this testimony was withdrawn from the consideration of the jury by an appropriate instruction.

There was no error in the admission of the testimony of witness Hoffman in which the testimony sought was to show the elements of value of the property in controversy by reason of its being located near certain railroad tracks and was suitable for switching purposes.

IV. It is insisted that the court erroneously excluded competent evidence offered by the appellant. The complaint of error upon this proposition is mainly directed to the exclusion of certain testimony of witness M. W. Barber. It was sought to prove by this witness, as a criterion of value of the property involved in this controversy, that he had offered to sell to respondent Michael Walsh property near the location of respondents’ lots, for certain amounts. This testimony was excluded by the court and we think properly so. The rule in respect to the admission of that character of evidence is nowhere more.clearly or correctly stated than it is by the learned text-writer heretofore cited, Lewis on Eminent Domain. He thus states the rule: “It is not competent for the owner to prove what he has been offered for this property, or what persons who have been looking for similar property were willing to give for it. Nor is it competent to prove offers for adjacent and similar property, or the price at which the owners of such property have offered it for sale. Offers made by the condemning party to the owner, for the property in question, are in the nature of an attempt to compromise, and cannot be proved. As a general rule, therefore, offers for property cannot be proven. But it may be shown, as against the owner, what he has offered to take for the property in question, unless it was.by way of compromise. But it is not competent to show the price at which the owner has offered to sell to the party condemning after the proceedings were instituted. An attempted sale made the day after the taking and without knowledge thereof was held competent, the owner being allowed to explain why he was willing to take less than he claimed in the proceedings.” This rule as announced in the text is fully supported by the authorities. [10 Am. and Eng. Eney. Law, 1157; Fowler v. Middlesex County, 6 Allen 92; Davis v. Railroad, 11 Cush. 506; Railroad v. Benson, 36 N. J. L. 557.]

V. It is also insisted that it was error to exclude the questions propounded by counsel for appellant to Mr. Walsh upon cross-examination as to certain other property being offered to him for specific amounts, and that he declined to take the property. While great latitude is always allowed in the cross-examination of a witness, and it would certainly have been competent to have permitted the full cross-examination of this witness as to his knowledge of the value of property in that vicinity, yet. we are of the opinion that to permit a cross-examination as to offer's made to him to sell specific property for a designated amount and that he declined to accept, savors too much of making such offers original evidence with the view of having the jury consider it as a criterion of value in estimating the value of the property in controversy, and if permitted would necessitate an instruction limiting the purposes of such a cross-examination. There was no error in the denial of such cro-ss-examination.

VI. Appellant challenges the correctness of instructions 3, 4 and 5 given by the court at the request of respondents. All of the instructions are reproduced in the statement of this cause and there is no nécessity for a repetition in this opinion of those instructions to which the complaints of appellant are directed. It will suffice to say of instruction number 3, which undertakes to guide the jury by defining’ tbe term “fair market value, ’ ’ that it substantially states tbe law correctly. However, we see no necessity for undertaking to improve upon instructions to the jury in cases of this character which have uniformly met the approval of this court. The complaint at this 'instruction is mainly directed to the following language used in it: ‘ ‘ But what it would fairly bring in the hands of a prudent seller at liberty to fix the time and conditions of sale. ’ ’

This part of the definition of the term market value is fully supported in 10 Am. and Eng. Ency. Latfr, 1152, and the cases cited -in support of the text, and while it will not be denied that the law as declared in the text of this most valuable work is correctly stated, yet we simply repeat the suggestion that there is no necessity for abandoning “we]l beaten paths” in our efforts to guide the jury upon any legal proposition. It would disarm all criticism to have defined the term ‘‘market value ’’ by the use of the language as indicated in Railroad v. Porter, 112 Mo. 360, to which respondents have specially called our attention. There it was substantially said by the court that the market value of land did not mean the price it would bring at public auction and forced sale for cash, but such price as could be obtained for it on the usual or ordinary terms of private sales. The instruction approved by this court in the Stock Yards Case, 120 Mo. 541, in plain and unambiguous terms defined the meaning which'should be applied to “market value,’’which meaning could have been readily comprehended by the jury, and this instruction could have very appropriately been applied to this case. The jury when told that the market value was such price as could be obtained for it on the usual or ordinary terms of private sale, would have no trouble in understanding what was meant by the court, for it would only be necessary to apply their common and every day observations of the purchases and sales of real estate between their neighbors and other persons transacting such business. It is equally clear that they would have readily understood the meaning applicable to “fair market value” had they been guided by the language used in the instruction in the Stock Yards case, where the jury were told that “the market value of the property means its actual value, independent of the location of plaintiff’s road thereon, that is, the fair value of the property as between one who wants to purchase and one who wants to sell it; not what could be obtained for it in peculiar circumstances when greater than its fair price could be obtained; nor its speculative value; nor the value obtained through the necessities of another. Nor, on the other hand, is it to be limited to that price which the property would bring when forced off at auction under the hammer. The question is, if the defendant wanted to sell its property, what could obtained for it upon the market from parties who wanted to buy and would give its full value!”

While we do not say it was error for the court to declare to the jury that the market value of land is what it would bring in the hands of “a prudent seller at liberty to fix the time and conditions of sale,” yet we simply suggest that the safer and better rule, where terms are to be defined in proceedings of this character in this State, is to adopt such definition, where it can be practically applied, as has uniformly met the approval of the appellate courts of this State.

There was no error in instructions numbered 4 and 5, which are challenged by appellant. The general rule in estimating the compensation to be allowed the owner whose land has been appropriated to a public use, is, “that reference should be had to the use for which the property is suitable, having regard to the existing business or wants of the community or such as may be reasonably expected in the immediate future.” This is the rule substantially announced in Railroad v. McGrew, 104 Mo. 282, and followed in the cases of Railroad v. Porter, 112 Mo. l. c. 368, and Webster v. Railroad, 116 Mo. l. c. 119, in which are cited in support of the conclusions reached upon that proposition, Young v. Harrison, 17 Ga. 30 ; Boom Co. v. Patterson, 98 U. S. 407. Instructions 4 and 5 are in perfect accord with those cases and if there is testimony upon which to predicate them, there is no error in giving them.

VII. It is insisted by the appellant that the court erred in its refusal of instructions numbered 1 and 2 requested by appellant. Treating of instruction number 2, refused by the court, and as to whether or not it is covered by other instructions given in the cause, it is only necessary to say that while instruction number 3 given on the part of the respondents, and number 3 given on the part of the appellant, cover some of the important features on the subject of market value, which should be submitted in instructions as a guide to the jury, yet they do not embrace all the essential elements of that subject which the jury have a right to consider in reaching their final conclusion in the cause.

The law as declared in instruction number 2 was approved in Railroad v. Union Stock Yards, supra, and in the case of Railroad v. Knapp-Stout & Co., 160 Mo. 396. This court, speaking through Gantt, J., in responding to a challenge to the correctness of an instruction in that case which embraced the same features as instruction number 2 requested in the case at bar, in no doubtful or uncertain terms expressly declared that the instruction clearly presented the law and was properly given by the court in that case. After quoting the instruction it was said: “Certainly this is the law, and this instruction met the approval of this court in the Stock Yards case, 120 Mo. 541. It is not argumentative. It is a plain direction to the jury that they must exclude in their estimate of the fair market value of the land, certain considerations which the law excludes, and which a jury of laymen might otherwise deem to be proper elements of damages. Nor was error committed in instructing the jury that they could not consider speculative values. Moreover, the definition of ‘market value’ is in all its substantial features like that given by the defendant in its own instruction on that subject. A condemning company is not chargeable with speculative values. ’ ’ Instruction number 2 in the case at bar, refused by the trial court, is in the nature of a detailed explanation of what is meant by the term “market value, ’ ’ cautionary in its character, particularly pointing out to the jury in detail how the market value of property is to be determined. "We repeat, that this instruction having met the approval of this court, and certain features of it not being fully embraced in other instructions given in the cause, this instruction should liave been given by the court.

As to instruction number 1 it is sufficient to say that if upon the retrial of this cause the suggestions as heretofore made are followed, and the term “market value” is defined along lines of the instructions approved in the cases herein indicated, the subject of market value will have been fully covered, and instruction number 1 as requested by appellant can serve no useful purpose in guiding the jury and should be denied.

VIII. This brings us to the consideration of the final contention of the appellant, that is, that the damages assessed by the jury under the facts developed at the trial, were excessive. We will not say, nor is it necessary to say, that the verdict is excessive in this cause, for it is with great reluctance that the appellate courts undertake to interfere with the finding of a jury in cases of this character where the great power of eminent domain is invoked, and a citizen, without his consent, is compelled to surrender his property. But on the other hand, under the'laws of this State, he is only entitled to receive the fair market value of his property when it is taken for public use, and when he is dissatisfied with the assessment made by the commissioners appointed for that purpose and seeks a trial by a. jury, to which he is clearly entitled under the Constitution and laws of this State, the verdict of the jury can only be supported and maintained when their conclusions have been reached by the consideration of such testimony as is recognized by the law, a fair criterion, in fixing the value of the property so taken. The record in this cause suggests a wide difference in the conclusions of the commissioners and that of the jury, and while the assessment as made by the commissioners should he no guide to a jury in making their assessment of damages, nor to this court, in passing upon the question of whether or not the verdict of the jury was excessive, yet in view of the errors herein pointed out, and while we express no opinion upon the amount of damages assessed in this cause, we have reached the conclusion that the ends of the fair administration of justice would he best subserved by. a retrial of this cause.

Entertaining the views as herein expressed, it results that the judgment in this cause should he reversed and the cause remanded for a new trial in accordance with the views expressed in this opinion, and it is so ordered.

All concur.