Kansas City v. Mastin Realty & Mining Co.

Supreme Court of Missouri

Kansas City v. Mastin Realty & Mining Co.

161 S.W. 1150, 253 Mo. 619, 1913 Mo. LEXIS 285

DecidedDecember 24, 1913

StatusPublished

This text of 161 S.W. 1150 (Kansas City v. Mastin Realty & Mining Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kansas City v. Mastin Realty & Mining Co., 161 S.W. 1150, 253 Mo. 619, 1913 Mo. LEXIS 285 (Mo. 1913).

Pincite

Opinion

OPINION.

I.

BOND, J.

Invited Error.

(After stating the facts as above). — The errors assigned are, that the jury made unequal and disproportionate assessments of the property of appellant. The evidence shows that in estimating benefits the jury charged a sum against plaintiff in excess of what should have been apportioned to it considering the extent of the entire benefit district and considering also the proportions of the total benefits which should have been borne by it and by other property owners respectively; this was particularly the case as to the relative amount of assessments of benefits found against appellant and one Tilney. No apparent reason existed for the discrimination between these two parties, since the jury awarded one of them damages for reducing his lot to thirty-five feet, and assessed against -the other a benefit for reducing his lot seventeen feet; the two lots being on opposite sides of the street. In view of this action of the jury we would reverse and remand this ease except for the basis afforded to their findings by the testimony of Tempofsky, who was sent to testify before them on behalf of appellant. But considering the testimony and the statement explanatory thereof made by the .president of the appellant corporation and submitted on its motion for new trial, we do not feel at liberty to award appellant the redress it would have been otherwise entitled to on this appeal. There was no misdirection as [626]*626to the rule governing the assessment of benefits and damages to the various property owners expressed in the instructions of the court, which in substance embraced the provisions of the charter of Kansas City on that subject, and the general law applicable to- such matters. [Webster v. K. C. & S. Ry. Co’., 116 Mo. 118.]

The seeming disregard of that rule by the verdict of the jury was induced by the statement on the witness stand of appellant’s accredited agent, that appellant only desired an equation of benefits and damages in the assessments which the jury might make for this desirable street widening. Appellant got that, for the damages given it slightly exceeded its burdens in the way of damages.

11.

Mistake ofAccredfted Agent.

The only question which can arise as to the preclusiveness on this appeal of the testimony given for appellant on the trial is whether Tempofsky was authorized by it to appear as its representa^ve • That he was so employed is clear from the statement made in support of its motion for new trial; and if it be true the witness exceeded his instructions or misconceived them, still he was acting within the apparent scope of his agency when he appeared and testified, and hence his principal is just as much bound by that testimony as if it had conformed in all respects to the directions given to the agent. Mr. Mastín, the president of appellant, saw fit to entrust the communication of his “attitude to the widening of Nineteenth street” to its employee, and that communication having been made without notice of any limitations to the court and jury, the verdict rendered in accordance with the testimony thus adduced is just as free from legal objections as if it had been based on the same testimony falling from the lips of the president of the corporation if he had chosen to appear as the witness, which he says he intended to do, [627]*627but tliat on account of absence he delegated that task to his agent.

The law is the guardian of the rights and property of all persons, but it does not undertake to stand sponsor for their failure to exercise ordinary care and vigilance in the management of their own business. Vigilantibus et non dormientibus jura subveniunt. If any loss has happened to appellant in this matter it resulted simply from voluntary inattention to his private business. [Gayle v. Mo. Car & Foundry Co., 177 Mo. l. c. 455; Estes v. Nell, 163 Mo. l. c. 395.]

We discover no reversible error in the judgment, it is affirmed.

Lamm, G. J., Graves, Brown, Walker, and Faris, JJ., concur; Woodson, J., dissents.

Free access — add to your briefcase to read the full text and ask questions with AI

OPINION.

I.

BOND, J.

Invited Error.

(After stating the facts as above). — The errors assigned are, that the jury made unequal and disproportionate assessments of the property of appellant. The evidence shows that in estimating benefits the jury charged a sum against plaintiff in excess of what should have been apportioned to it considering the extent of the entire benefit district and considering also the proportions of the total benefits which should have been borne by it and by other property owners respectively; this was particularly the case as to the relative amount of assessments of benefits found against appellant and one Tilney. No apparent reason existed for the discrimination between these two parties, since the jury awarded one of them damages for reducing his lot to thirty-five feet, and assessed against -the other a benefit for reducing his lot seventeen feet; the two lots being on opposite sides of the street. In view of this action of the jury we would reverse and remand this ease except for the basis afforded to their findings by the testimony of Tempofsky, who was sent to testify before them on behalf of appellant. But considering the testimony and the statement explanatory thereof made by the .president of the appellant corporation and submitted on its motion for new trial, we do not feel at liberty to award appellant the redress it would have been otherwise entitled to on this appeal. There was no misdirection as [626]*626to the rule governing the assessment of benefits and damages to the various property owners expressed in the instructions of the court, which in substance embraced the provisions of the charter of Kansas City on that subject, and the general law applicable to- such matters. [Webster v. K. C. & S. Ry. Co’., 116 Mo. 118.]

The seeming disregard of that rule by the verdict of the jury was induced by the statement on the witness stand of appellant’s accredited agent, that appellant only desired an equation of benefits and damages in the assessments which the jury might make for this desirable street widening. Appellant got that, for the damages given it slightly exceeded its burdens in the way of damages.

11.

Mistake ofAccredfted Agent.

The only question which can arise as to the preclusiveness on this appeal of the testimony given for appellant on the trial is whether Tempofsky was authorized by it to appear as its representa^ve • That he was so employed is clear from the statement made in support of its motion for new trial; and if it be true the witness exceeded his instructions or misconceived them, still he was acting within the apparent scope of his agency when he appeared and testified, and hence his principal is just as much bound by that testimony as if it had conformed in all respects to the directions given to the agent. Mr. Mastín, the president of appellant, saw fit to entrust the communication of his “attitude to the widening of Nineteenth street” to its employee, and that communication having been made without notice of any limitations to the court and jury, the verdict rendered in accordance with the testimony thus adduced is just as free from legal objections as if it had been based on the same testimony falling from the lips of the president of the corporation if he had chosen to appear as the witness, which he says he intended to do, [627]*627but tliat on account of absence he delegated that task to his agent.

The law is the guardian of the rights and property of all persons, but it does not undertake to stand sponsor for their failure to exercise ordinary care and vigilance in the management of their own business. Vigilantibus et non dormientibus jura subveniunt. If any loss has happened to appellant in this matter it resulted simply from voluntary inattention to his private business. [Gayle v. Mo. Car & Foundry Co., 177 Mo. l. c. 455; Estes v. Nell, 163 Mo. l. c. 395.]

We discover no reversible error in the judgment, it is affirmed.

Lamm, G. J., Graves, Brown, Walker, and Faris, JJ., concur; Woodson, J., dissents.

Cite This Page — Counsel Stack

Bluebook (online)

161 S.W. 1150, 253 Mo. 619, 1913 Mo. LEXIS 285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kansas-city-v-mastin-realty-mining-co-mo-1913.

Opinion

Related

Cite This Page — Counsel Stack