City Hall building on the southeast corner of Fourth and Main streets, in Kansas City, Jackson County, Missouri.

"[Signed] Jas. A. Reed, Mayor." Thereafter, on July 8, 1901, at said city ball, further proceedings were had, as shown by said transcript, as follows:

"In the matter of the proceedings to ascertain and assess just compensation to be paid for private property taken for public use for the purpose specified in an ordinance of said city No. 16,129, entitled 'An Ordinance to open and establish 17th street from Holly street to the westerly line of Franklin street,' approved Jan'y 5, 1901.

"Hon. J. P. Lynch, Speaker Lower House of the Common Council of Kansas City, presiding.

"Now on this day comes John A. Hanley, R. G. Perkins, John Bayha, Wm. Reeves, Chas. Bickell, F. N. Phelps, the jury summored herein.

"Also appears S. S. Winn, 2nd Assistant City Counselor for the city and offers in evidence the ordinance and plat under which these proceedings are carried on, and files the affidavit of publication of M. W. Hutchison, of the Kansas City Mail, accompanied with a copy of the notice to be published under order of the Mayor, dated May 20th, 1901, showing publication pursuant to said notice in the Kansas City Mail as follows, to wit:

"And the court adjudges that all parties have been duly notified and all persons interested duly served, the jury having heard the evidence of all persons appearing, and having viewed the property to be taken and assessed, render their verdict and are discharged by the court.

"Speaker Lower House of the Common Council."

And on the same day said jury returned the following unanimous verdict:

"In the matter of the proceedings to ascertain and assess just compensation to be paid for private property taken for public cse for the purpose specified in an ordinance of the said Kansas City No. 16,129, entitled 'An Ordinance to open and establish Seventeenth (17th) street from Holly street to the westerly line of Franklin street,' approved January 5th, 1901, the undersigned jury on oath having heard the proof of the several parties interested and examined personally the property to be taken and assessed, render car verdict as follows, to wit:

"We find that the damages for the property taken exceed the benefits to be derived by the city at large and by the property within the benefit limits as prescribed by said ordinance No. 16,129."

On the same day the mayor submitted aid verdict and proceedings to the common excncil of said city as follows:

"Mayor's Office. Kansas City, Mo., July Sth, 1901. To the Hon. Common Council

Gentlemen: I herewith submit for your consideration the verdict and proceedings taken and had by the city under ordinance No. 16,129, entitled 'An ordinance to open and establish 17th street from the line of Holly street to the westerly line of Franklin street,' approved January 5th, 1901. Respectfully, John P. Lynch, Acting Mayor."

Whereupon, at a meeting of said council on July 8, 1901, an ordinance was passed by that body, certified by the proper officers of both houses, and approved by the mayor on July 10, 1901, duly numbered (17,307) and entitled, which was as follows:

"Be it ordained by the common council of Kansas City:

"Section 1: That the verdict and proceedings (reported to the Common Council July 8th, 1901, by the mayor) rendered and taken in causing to be ascertained and assessed by a jury, just compensation to be paid for private property taken for the purpose specified in Ordinance No. 16,129, entitled 'An ordinance to open and establish 17th street from the west line of Holly street to the westerly line of Franklin street,' approved January 5, 1901, be and the same are hereby confirmed."

Thereafter, on July 27, 1901, the following affidavit was filed in the office of the city clerk:

"In the matter of opening and establishing of 17th street from Holly street to Franklin street under ordinance of Kansas City, No. 16,129. Approved January 5th, 1901.

"In the Mayor's Court. State of Missouri, County of Jackson-ss.: A. G. Belinder, upon his oath being duly sworn, states that he is the owner of the following property affected by the judgment rendered in the above-entitled cause, to wit: Lots 4, 5, 6, 7, Resurvey of Whipple's Second Addition in block one (1) Kansas City, Missouri, and that he appeals to the circuit court of said county at Kansas City from the judgment rendered in said cause on the verdict of the jury, and that this application for appeal is not made for vexation or delay, but on the merits, because this affiant believes that he is injured by the verdict and judgment of the said court. A. G. Belinder.

"Subscribed and sworn to before me this 27th day of July, 1901. Term expires Nov. 18, 1902. R. B. Garnett, Notary Public. [Seal.]"

Upon this affidavit for an appeal a transcript of the proceedings before the mayor was certified to the office of the clerk of the circuit court of Jackson county, Mo.

On January 10, 1902, this cause was tried in the circuit court of Jackson county, Mo., before a jury. Ordinance No. 16,129 was offered in evidence, together with the plat and other testimony tending to prove the matters submitted to the jury.

At the close of the evidence the court instructed the jury as follows: "You are instructed that this proceeding is for the pur

pose of assessing damages and benefits that may result from the proposed condemnation for public use of Seventeenth street from Holly street to the westerly line of Franklin avenue under the ordinance of Kansas City, Missouri, numbered 16,129, and approved on the 5th day of January, 1901, and offered in evidence. The public use of the property to be taken under said ordinance is such that the city must have exclusive possession and control thereof, and you are instructed that for each piece of property so taken you will ascertain and determine the just compensation therefor to be the actual value thereof. For all damages to each piece of property not actually taken, so as to give the city possession or control of the same, you will ascertain and determine the just compensation therefor to be the actual amount of the damages such property may sustain from the use of the private property taken for the public use for which it may be taken, including all that the city from time to time may do or cause to be done in, with, or upon the private property so taken. To pay such compensation, you will assess against the city the amount of benefit to the city and public generally, inclusive of the benefit to any property of the city, within the benefit limits prescribed by the ordinance in evidence; and against the several lots and parcels of private property, exclusive of the improvements thereon, which you may deem benefited by the proposed improvement under said ordinance, and which is within the limits of the benefit district prescribed by ordinance introduced in evidence, and shown on the plat introduced in evidence, you will assess the balance of such compensation; each lot or parcel of ground to be assessed with an amount bearing the same ratio to such balance as the benefit to each lot or parcel bears to the whole benefit to all the private property assessed. In making up your verdict, you are to be guided by your own judgment as to damages and benefits in connection with all the evidence in the case. You will make up your verdict in writing, and it shall be signed by each of you, and you will all return the same into court. Before returning and making your verdict, you will examine personally the property taken, damaged, and assessed. The city engineer or his assistant may aid you to put your verdict in proper form, and you will call upon him to do so. You are not at liberty to pass on the question as to whether there is any public necessity for the proposed proceeding, that being a matter within the discretion of the common council." To the giving of which instruction the Kansas City, Ft. Scott & Memphis Railroad Company duly objected and excepted at the time. Said railroad company thereupon asked the court to instruct the jury as follows: "The court instructs the jury that, in assessing benefits for the proposed opening of Seventeenth street in this proceeding, you cannot assess any such benefits against the

property of the Kansas City, Ft. Scott & Memphis Railroad Company, its successors or assigns, now occupied by the tracks of said railroad company." The court refused to give said instruction, to which refusal of the court said railroad company duly excepted at the time.

The cause was submitted to the jury, and they returned their verdict, in which they assessed the value of the property taken, and the damages done to the improvements thereon, in carrying out the purpose of opening of the street specified in Ordinance 16,129, and then proceeded to assess against the defendant and other property owners in the benefit district certain amounts to pay the compensation fixed as aforesaid for the property to be taken and damaged. Against that portion of the railroad yards of the defendant included in said benefit district the jury assessed the sum of $456, and the court entered judgment that said verdict "be adjudged to be binding and conclusive on all parties interested," and that "Kansas City have and hold the land taken" for public use, and that the lands assessed with benefits "stand bound and charged to pay" the several assessments against them, and that execution issue to enforce said payments. From this judgment defendant in due time and form prosecuted this appeal, and the cause is now before us for consideration.

L. F. Parker and Pratt, Dana & Black, for appellant. R. J. Ingraham and S. S. Winn, for respondent.

FOX, J. (after stating the facts). We are not favored in this cause with a brief by respondent, or even a suggestion as to the theory upon which this proceeding can be maintained; hence we are left to make such independent investigation of the legal propositions presented by the record in this cause as will meet the contentions of counsel for appellant, so ably and clearly presented in their brief.

We have carefully considered the charter provisions of article 7 of the freeholders' charter of Kansas City (page 111, Ed. 1898), which furnishes the basis of this proceeding; and we are unable, with the record before us, made in pursuance of the charter provisions referred to, to discover upon what possible foundation this proceeding rests or can be maintained. It is fundamental that the power and authority to condemn property and open public streets in Kansas City, Mo., rests with the municipal authority, and that property cannot be condemned or public streets opened at the instance of any particular individual. We have in this case the proceeding in due form commenced by the proper authority in respect to the opening of Seventeenth street, by the passage of Ordinance 16,129. In pursuance of this ordinance, proper plats were made by the city engineer, and duly filed with the mayor, showing the benefit district in connection with the opening of the

street contemplated as directed by the providons of the charter. In pursuance of the provisions of the charter, the mayor organized his court for the purpose of ascertaining the damages by reason of the property taken for said street and the improvements thereon, and for the assessment of benefits to make compensation for the value of the property taken and condemned by reason of the contemplated street. A jury was impaneled, and, after having heard the proof of the several parties interested, and examining personally the property to be taken and assessed, returned a verdict that the damages for the property taken exceeded the benefits to be derived by the city at large and by the property within the benefit limits as prescribed by said Ordinance No. 16,129. This verdict, by the acting mayor, John P. Lynch, was submitted to the common council of the city, and by Ordinance No. 17,307 fully confirmed and approved, which ordinance was approved by the mayor on July 10, 1901. So far as the municipal government is concerned, as disclosed by the record before us, no further steps were taken toward the completion of the purposes specifed in the original ordinance, 16,129.

This proceeding, it appears, reached the ereait court by an appeal on the part of an individual who owned some lots of ground in the benefit district, whose property had neither been taken, damaged, nor assessed in respect to the opening of this street. The record in this cause discloses that Kansas City did not appeal from the verdict of the jury, nor, in the sense of contesting the adjudications upon its rights in the mayor's courts, was the city a party to the proceeding in the circuit court, nor is there anything indicated by the record that the city is still undertaking to carry out the purposes specified in the original ordinance, 16,129. Upon this state of facts the conclusion is irresistible that upon the return of the verdict by the jury, and its confirmation and approval by the city council, there was an abandonment of the purposes specified in the original ordinance. That the city had a right to discontinue this proreeding is beyond dispute. This right was clearly stated in the case of Simpson v. Kansas City, 111 Mo., loc. cit. 242, 20 S. W. 39. It was there said (McFarland, J., speaking for the court): "It has long been the rule in this state, and is the general rule elsewhere, that, in the absence of statutory regulations to the contrary, a municipal corporation has the right to discontinue proceedings for condemning property for public ses, and to abandon such public improvements, at any time before a final award in the nature of a judgment in favor of the property owners for their compensation is made. Railroad v. Lackland, 25 Mo. 515; St. Joseph v. Hamilton, 43 Mo. 288; State ex rel. v. Hug, 44 Mo. 117; 2 Dillon on MuLicipal Corporations, § 609; Lewis on Emi88 S.W.-4

nent Domain, § 656; 3 Sedgwick on Damages, § 1166; Mills on Eminent Domain, § 311; City of St. Louis v. Meintz, 107 Mo. 611, 18 S. W. 30." Judge Dillon, in his most excellent work upon Municipal Corporations (volume 2 [4th Ed.] § 608), clearly states the rule as to the right of a city to abandon or discontinue proceedings to open streets. He says: "Under the language by which the power to open streets and to take property for that purpose is usually conferred upon municipal corporations, they may at any time before taking possession of the property under completed proceedings, or before the final judgment, recede from or discontinue the proceedings they have instituted. This may be done, unless it is otherwise provided by legislative enactment, at any time before vested right in others have attached. Until the assessments of damages have been made, the amount cannot be known; and, on the whole, it is reasonable that, after having ascertained the expense of the project, the corporation should have the discretion to go on with it or not, as it sees fit, it being liable in proper cases for any wrongful acts injurious to the owner, as shown in the next section." In Silvester v. St. Louis, 164 Mo. 601, 65 S. W. 278, Burgess, J., speaking for this court, fully reviews all the authorities and concludes with the full recognition of the rights of the city at any time before any property rights are vested, to abandon or discontinue the proceeding to open a public street. In Whyte v. City of Kansas, 22 Mo. App. 409, it was very appropriately said: "The city stopped at the passage of the ordinance. It might have proceeded much further in the process of condemnation, and yet not been liable to damages, nor fallen under the authorities cited for plaintiff. There is matter for the council to pass upon at the very end of the condemnation proceeding, in its nature judicial, which may put an end to the proceeding and leave the parties in statu quo, which is the amount of damages that have been assessed. The council have, in reserve, the power to determine that the public good to be subserved from the appropriation of private property in a given instance is not commensurate with the damages awarded." To the same effect is City of St. Joseph v. Hamilton, 43 Mo. 282, where it was ruled "that the city may dismiss its proceedings at any time before final judgment, * and then the only liability that would be incurred would be the expenses. So, if, on account of excessive damages, it should be deemed unwise or impolitic to proceed, it might abandon the work. If the city elects to abandon the enterprise and not to take the property, there is no divestiture of title from the owner, and he is not entitled to pay from the public." This case was afterwards affirmed in State ex rel. Rogers v. Hug, 44 Mo. 116.

*

*

If the record before us is to be our guide,

that Kansas City fully and completely discontinued and abandoned this proceeding upon the return of the verdict by the jury is too plain for discussion; and, this being true, we are unable to ascertain upon what ground Mr. A. G. Belinder can continue this proceeding, and undertake, contrary to the wishes of Kansas City, to open a public street within her corporate limits. The record is absolutely silent as to any steps taken by the city to pursue the purposes specified in the original ordinance any further. The city made no complaint at the verdict. Its common council accepted it, confirmed it, and approved it. It was no complaining party to the proceeding in the circuit court, and is making no suggestion now in this court as to the support and maintenance of the judgment in this proceeding. Again, under the showing as disclosed by the record in this cause, there was no right of appeal on the part of A. G. Belinder: First, for the reason that the verdict of the jury was not such a verdict as is contemplated by section 4 of article 7 of the charter of the city of Kansas, as to authorize an appeal from it; second, the right of appeal on the part of Mr. Belinder must rest solely upon the charter provisions of section 5, art. 7, of the city charter, and he is not such a person affected by said proceeding as is contemplated by that section of the charter, which would authorize an appeal by him. The provisions of this section authorizing an appeal substantially provide that in case the city or any person affected by such proceeding, either as the owner of property taken or damaged, or the owner of property assessed, shall feel aggrieved by the verdict, such party so aggrieved may appeal to the circuit court of Jackson county, Mo. Mr. Belinder's property was neither taken nor damaged, nor was there any assessment of any kind made against his property. In fact, his property was in identically the same condition and position after the return of the verdict, and the confirmation of it by the city council, as it was before; hence he had nothing to appeal from. The only person, under the provisions of the city charter governing this proceeding, who was authorized to prosecute an appeal, must be some one whose property has been taken, damaged, or assessed by such proceeding. The right of appeal in civil actions was unknown to the common law, and this appeal rests solely upon the provisions of the city charter, and it is essential to the exercise of this right that the provisions of that charter shall be substantially pursued. State ex rel. v. Woodson, 128 Mo., loc. cit. 514, 31 S. W. 105; State v. Thayer, 158 Mo. 36, 58 S. W. 12; Thomas v. Town Mut. Ins. Co., 89 Mo. App. 12; Schroeder v. Jabin, 94 Mo. App. 111, 67 S. W. 949.

Again, it may be said that, upon the face of the affidavit of Mr. Belinder, this appeal was unauthorized. Section 5, supra, of the city charter, makes it an essential requisite

in an affidavit for an appeal that the party appealing, or his agent, shall state what interest the party appealing has in the proceeding. Now, so far as this affidavit is concerned, it is absolutely silent as to any interest of Mr. Belinder, who made this affidavit. The statement that he was the owner of certain property affected by the judgment is by no means a compliance with the essential requisite of the charter provision that he must show what interest he has in the proceeding, and, from the disclosures of the record, after the return of the verdict by the jury, and its confirmation by the city council, we are unable to conceive of any interest that he had in such proceeding, at least until some further steps were taken by Kansas City to carry out the purposes of the original ordinance. The remarks of the court in State ex rel. v. Talty, 139 Mo. 379, 40 S. W. 942, may very appropriately be applied to the appeal to the circuit court in this case. It was said: "But independently of what may be said of the control, duty, or power of the courts over property in their custody, no appeal will lie from judgments or orders made affecting the same, unless allowed by statute; and, by statute, appeals are allowed only to those who are aggrieved by judgments, orders, or decrees made, affecting directly some pecuniary or property rights or interests of the appellant. Judgments or orders that affect or offend merely the taste or sensibilities of a party constitute no legal grievanceauthorize no appeal therefrom."

We have carefully considered all the disclosures of the record in this cause, and we are of the opinion that the conclusion is irresistible that the city, upon the return of the verdict by the jury, and its acceptance and approval by the city council, abandoned the proceeding put in operation by Ordinance 16,129; and it may be further added that the verdict of the jury and its approval by the city council did not in any way affect the interest in any property of A. G. Belinder, and was not such an adjudication of any of his rights as authorized an appeal, and that the circuit court was without jurisdiction to render the judgment disclosed by the record.

With these views, it results in the conclusion that the judgment should be reversed, and it is so ordered. All concur.

REYNOLDS v. ST. LOUIS TRANSIT CO. (Supreme Court of Missouri, Division No. 1. June 15, 1905.)

1. BILL OF EXCEPTIONS-AMENDMENT.

The amendment of defendant's bill of exceptions by incorporating into it an admission of defendant's counsel, contained in plaintiff's bill, that the accident was the result of defendant's negligence, if allowable, would not materially alter the case, where the admission was nothing more than what the uncontradicted evidence showed was the fact.

In an action against a street railroad company, where it appeared that defendant received plaintiff as a public carrier, and he was being carried as a passenger when he was injured, it was not error to instruct a finding for plaintiff if the jury found, among other facts, that defendant received plaintiff as a passenger to be carried for hire, though there was no evidence that plaintiff paid his fare, or that fare was demanded.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 974.]

3. SAME INSTRUCTIONS - ERROR AFFECTING MERITS.

In an action against a street railroad for injuries, where it was alleged that defendant, by a "negligent and violent rate of speed" of another car, caused the collision, an instruction to find for plaintiff if the jury found that defendant so negligently ran and operated its ears, or either of them as to cause the collision, though broader than it should have been, was not error affecting the merits, which will be regarded on appeal.

4. PERSONAL INJURIES - MEASURE OF DAMAGES.

In an action for injuries, an instruction that in estimating the damages the jury may consider plaintiff's diminished capacity for earning money, if any, and on account thereof make such allowance as may be fair and just for any loss they may believe from the evidence he has sustained in the past by reason thereof, and for any loss they may believe he may sustain in his future earnings by reason of such diminished earning capacity, is not erroneous, as authorizing a recovery for loss of time, and also for diminished earning capacity during the same period, and for loss of what he "may" sustain in the future.

5. SAME-EXCESSIVE DAMAGES.

An award of $23,400 for injuries sustained is excessive, though plaintiff was 42 years old, in good health, and his injuries have resulted in diabetes and paralysis of both legs, and be is a helpless cripple, and may remain so permanently.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Damages, § 374.]

Appeal from Circuit Court, Franklin County: John W. McElhinney, Judge.

Action by William Reynolds against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Reversed.

Boyle, Priest & Lehmann and Geo. W. Easley, for appellant. John W. Booth, Oscar E. Meyerseieck, Richard F. Ralph, Thomas F. Fauntleroy, and Shepard Barclay, for respondent.

but taken by change of venue to Franklin county, where it has been twice tried. On the first trial there was a verdict for the plaintiff for $35,000; but the court sustained defendant's motion for a new trial, and the cause was tried again. On the second trial the verdict was for $23,400, and the court overruled defendant's motion for a new trial, whereupon the defendant took this appeal. 1. It appears from the respondent's abstract that when the appellant presented its bill of exceptions to the trial judge for his signing the plaintiff insisted that the argument of Mr. Hocker, the defendant's attorney, to the jury, should be inserted in the bill of exceptions, and for that purpose presented to the court the stenographer's report of that argument; but the court refused the plaintiff's request, and signed the bill as it was offered by the defendant. Then the plaintiff excepted to that ruling, and the court thereupon signed a bill of exceptions for the plaintiff which contained the argument, and respondent now asks that his bill of exceptions be taken as a part of the record in the cause. The significance of this request is that in the argument of the defendant's counsel he frankly admitted to the jury that the accident was the result of defendant's negligence, and that the only point on which the plaintiff and defendant could not agree was the amount of damages the plaintiff should have to compensate him for his injury; that he was injured to some extent, but not to the extent claimed by him. Respondent contends, on the authority of what is said in Darrier v. Darrier, 58 Mo. 222, that this court should cause the defendant's bill of exceptions to be amended or corrected, by inserting the contents of the plaintiff's bill into it, or consider it done without going through the formality of doing it or requiring it to be done. We do not understand the case referred to as being a precedent for amending appellant's bill of exceptions in the manner proposed. But it would not materially alter the case if the bill of exceptions contained the admission referred to, because the admission was nothing more than what the uncontradicted evidence showed was the fact, and the counsel, in frankly making the statement, was not only discharging his duty to the court, but also discharging his full duty to his client, by pre

light in which it could be presented. The evidence showed that the plaintiff was a passenger in one of defendant's cars, which was struck by another of defendant's cars, and he was thereby injured. It was therefore in legal contemplation the defendant's own hand that struck the plaintiff. When those facts were shown, a prima facie case was made for the plaintiff, and the burden of accounting for the collision was shifted to the defendant; but defendant offered no evidence on that point. The only evidence offered by defendant was that of experts