Empire Dist. Elec. Co. v. Johnston, No. 7145

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: STONE; BLAIR
• Citation: 268 S.W.2d 78,241 Mo.App. 759
• Decision Date: 11 May 1954
• Docket Number: No. 7145
• Parties: EMPIRE DIST. ELECTRIC CO. v. JOHNSTON et al.

Page 78

268 S.W.2d 78 241 Mo.App. 759 EMPIRE DIST. ELECTRIC CO.
v.
JOHNSTON et al. No. 7145 Springfield Court of Appeals, Missouri. May 11, 1954.

[241 Mo.App. 760]

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A. E. Spencer, Jr., E. P. Dwyer, Jr., Joplin, for appellant.

[241 Mo.App. 761] Stemmons & Stemmons, Mount Vernon, for respondents.

[241 Mo.App. 762] STONE, Judge.

In this proceeding, Empire District Electric Company (hereinafter called plaintiff) is condemning a right-of-way, 50 feet in width, across certain described tracts in Lawrence County, Missouri, including a tract owned by Robert F. and Edna Johnston (hereinafter called defendants), for erection and maintenance of high voltage electric transmission lines. In accordance with our statutory procedure, Chapter 523, RSMo 1949, V.A.M.S., commissioners were appointed who assessed damages of $150 for the right-of-way across defendants' tract. Upon defendants' exceptions, trial by jury was had which resulted in a verdict of $1,300, from which plaintiff appeals.

Defendants' tract is located on the north side of U. S. Highway 166 (which runs in a general easterly and westerly direction) near the east corporate limits of Mount Vernon, Missouri, and at the 'T-intersection' of Highway 166 and Missouri State Highway 39 which enters Highway 166 from the south, but does not cross it, at that point. The affected tract is 1,494 feet in length, east and west (that being the frontage on the north side of Highway 166), and 210 feet in width, north and south, and has an area of approximately 7 acres. The west line of plaintiff's 50-foot right-of-way, which angles across defendants' tract in a general northerly and southerly direction, is approximately 232 feet east of the west end of the tract. By its petition in condemnation, plaintiff covenants that it will not fence the right-of-way strip and 'does not desire exclusive use or occupancy of any portion thereof except the portions thereof physically occupied' by the two wooden poles on the right-of-way strip, one of which is near the south side of defendants' tract fronting on Highway 166 and the other some 160 feet north of the first pole. Plaintiff's pole line is to carry 69 KV and 12 KV circuits with a minimum clearance of not less than 18 feet above ground level under adverse weather and ice conditions.

The west 500 feet of defendants' tract is about level with Highway 166 and 'is open or exposed' to the 'T-intersection' made by Highway 39 entering from the south. Beginning about 500 feet east of the west end of the tract, the ground level begins to slope downward below the level of Highway 166, so that the east end of this tract is substantially below (one of plaintiff's witnesses said 50 or 60 feet below) the level of Highway 166 and considerable filling would be required to make the east end suitable for building purposes. Defendants' long, narrow tract of limited acreage is not suitable for farming and has not been utilized for any purpose. However, all of the witnesses on the subject of valuation agreed that defendants' tract is suitable and adaptable for construction of a motel, filling station, restaurant or other highway business, and the evidence clearly shows that the west 500 feet of the tract, which is level with Highway 166, would be 'the most ideal place' for any building or construction. Plaintiff's right-of-way strip and electric transmission line 'splits' [241 Mo.App. 763] or crosses this west 500 feet of defendants' tract about the middle thereof.

Defendants did not appear personally at the trial. Defendant, Robert F. Johnston (hereinafter referred to as defendant Johnston), testified by deposition, which was taken in Hoquiam, Washington, where defendants then resided, on February 28, 1952, pursuant to written notice on which, during January, 1952, plaintiff's attorneys had acknowledged service and had waived 'issue of dedimus and all exceptions as to

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time'. Defendant Johnston's deposition was taken before Omar S. Parker, notary public, who, as 'attorney for defendants', also conducted the direct examination of defendant Johnston. Plaintiff appeared at the taking of this deposition by Attorney Charles L. Hyndman, who not only interposed numerous objections to questions propounded on direct examination (which objections, in accordance with our practice, were not ruled by the notary) but also cross-examined defendant Johnston in some detail. The transcript reflects no objection, at the time, to Parker acting as notary public and also as local attorney for defendants, and there was no attack upon or complaint about the deposition prior to trial. When defendants' attorneys offered the deposition in evidence at the trial, plaintiff objected 'on the ground that it was taken before and by the attorney for the defendants, Omar S. Parker, both as attorney and notary'. That objection being overruled, plaintiff here assigns error, on the same ground, in the admission of defendant Johnston's deposition.

Cases cited by plaintiff on this point ¹ condemn the practice of an attorney acting as notary public in the taking of a deposition, in which the attorney also represents one of the parties to the suit, but none of those cases convict the trial court of error in admitting the deposition of defendant Johnston, upon the record before us. On the contrary, the Redmond case is an authority against plaintiff's present contention. For, although conceding, 126 S.W. loc. cit. 162, that the fact 'that the notary was a partner of one of the attorneys * * * would have been good ground to suppress the deposition if timely objection had been made', the Supreme Court there held, after pointing out that opposing counsel, who were present at the deposition, 'made no objection to the notary on that ground', that the trial court did not err in overruling a subsequent motion to suppress the deposition. In the Swink case, where it was said that a motion to suppress should have been sustained, the opinion shows, 96 Mo.App. loc. cit. 424, 70 S.W. loc. cit. 273, 'that the defendant was neither personally present nor represented by an attorney at the taking of the depositions'.

That 'a party should not be permitted to lie by and lull his adversary into a sense of security by failure to file any motion to [241 Mo.App. 764] suppress his depositions, thus induce him to announced himself ready for trial, and then count on springing the question of some informality on him, for the first time, when he offers to read those depositions in evidence', has long been recognized ². It is equally well settled that, by proceeding to trial without any attack upon or complaint about a deposition, irregularities in connection with the taking thereof are waived ³. There being no showing or charge that the attorney representing plaintiff at the taking of defendant Johnston's deposition was restricted in the making of objections or in cross-examination of the witness, or that the notary was guilty of oppressive or fraudulent conduct, or that the deposition, as returned, was inaccurate or incomplete in any respect, and there having been no attack upon the deposition prior to trial, we cannot agree with the contention of plaintiff's counsel that their objection, after trial had begun, was timely. Such objection (if it was to have been made) should have been

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presented prior to trial, when defendants' counsel either might have arranged for their clients to have appeared personally or might have asked that the cause be continued in order that the deposition might be retaken. Abbott v. Marion Min. Co., 112 Mo.App. 550, 554, 87 S.W. 110, 111(1). The trial court did not err in admitting the deposition of defendant Johnston.

Plaintiff's next assignment is that error was committed in admitting the testimony of defendant Johnston, as given in his deposition,...