Missouri State Park Bd. v. McDaniel, 9092

• Decision Date: 20 October 1971
• Docket Number: No. 9092,9092
• Citation: 473 S.W.2d 774
• Parties: MISSOURI STATE PARK BOARD, Plaintiff-Appellant, v. Earl McDANIEL and Dorothy J. McDaniel, Husband and Wife, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 774

473 S.W.2d 774

51 A.L.R.3d 1040

MISSOURI STATE PARK BOARD, Plaintiff-Appellant, v. Earl McDANIEL and Dorothy J. McDaniel, Husband and Wife Defendants-Respondents.

No. 9092.

Springfield Court of Appeals, Missouri.

Oct. 20, 1971.

Motion for Rehearing or to Transfer to Supreme Court Denied

Nov. 8, 1971.

Application to Transfer Denied Jan. 10, 1972.

John C. Danforth, Atty. Gen., Louren R. Wood, Asst. Atty. Gen., Jefferson City, for plaintiff-appellant.

Morgan M. Moulder, Camdenton, for defendants-respondents.

TITUS, Presiding Judge.

The Missouri State Park Board (§ 253.020) ¹ instituted this condemnation suit to acquire for park purposes (§ 253.040) 40 acres allegedly owned by defendants 'lying within Lake of the Ozark State Park.' Plaintiff (the board) excepted to the $14,000 commissioners' award and now appeals from the judgment entered on the jury's verdict which fixed defendants' damages at $20,000.

Acceding to defendants' objections, the trial court refused to permit the board's only 'expert valuation witnesses' (Greene, Webb and Johnson) to testify because their names had not been revealed to defendants in answers to propounded interrogatories and because defendants and their counsel were unaware that the three proposed witnesses had appraised the property for the board until their testimony was proffered at trial. When defendants objected to this testimony, the trial court also denied the board's 'motion for a continuance to allow (defendants) opportunity to adjust their case in light of these previously undisclosed witnesses.' The board's first point on appeal is that these sanctions, which the trial court imposed upon the erring plaintiff, constituted an abuse of discretion.

Under date of January 30, 1969, defendants asked the board Interrogatory No. 16: 'State the names and addresses of all persons who have made an appraisal of said land for or on behalf of the Plaintiff and the valuation placed thereon by each such person.' Without objecting, plaintiff answered the interrogatory on February 6, 1969, by stating the name and address of 'Mr. J. Raymond Brummet' and advising, 'Valuation: $2,600.00.' ² No amendments or additions were ever made to the interrogatory answer. Trial was commenced and concluded on August 12, 1970. It developed in a hearing conducted out of the jury's presence that the intended witnesses had appraised the 40 acres for plaintiff some seven or eight months prior to trial.

Any party may employ the discovery devices of written interrogatories (State ex rel. Pete Phodes Supply Company v. Crain, Mo. (banc), 373 S.W.2d 38, 44(2, 3)) or deposition upon oral examination (Thomas v. Fitch, Mo.App., 435 S.W.2d 703, 707), or both (Rule 56.01(a)), to ascertain from his adversary 'the identity and location of persons having knowledge of relevant facts' (Rule 57.01(b)), whether such persons came by their knowledge through sheer chance or by design as investigators or experts. Smith v. Wabash Railroad Company, Mo. (banc), 416 S.W.2d 85, 89(7); State ex rel. Mueller v. Dixon, Mo.App., 456 S.W.2d 594, 600. If the interrogated party gains knowledge of other and additional witnesses subsequent to having once answered a written interrogatory requiring such information, he has a continuing duty to convey the added information to the interrogating party 'where the after-acquired information is of a material nature or where it will render the answers originally given untruthful, unreliable, or inaccurate' (Laws v. City of Wellston, Mo., 435 S.W.2d 370, 375(2)), and a trial court is vested with broad discretion to either admit or reject the testimony of witnesses whose names, though known to the party, were not disclosed to his adversary by answers to written interrogatories. Keyte v. Parrish, Mo.App., 399 S.W.2d 601, 605(7); Aulgur v. Zylich, Mo.App., 390 S.W.2d 553, 556--557(2, 3); Annotations: Discovery--Names of Witnesses, 37 A.L.R.2d 1152--1165, and Discovery--Disclosure of Witnesses, 27 A.L.R.2d 737--739. Trial courts are additionally vested with authority to impose certain conditions as prerequisites to the admission of the testimony of undisclosed witnesses. Therefore, the question arises: Did the court nisi abuse its discretion by not permitting the board's expert witnesses to testify and by not granting plaintiff's motion for a continuance to afford defendants an 'opportunity to adjust their case in light of these previously undisclosed witnesses'? ³

The exact situation which confronted the trial court bears little or no resemblance to the predicaments encountered in any reported case to which we have been directed or have unearthed by independent research. Therefore, we purposely shy from the frequently misleading and frustrating practice of attempting to reconcile divergent factual situations and attend initially to the discovery of germane p rinciples applicable in this and like instances. Before a trial court imposes drastic sanctions for nondisclosure of witnesses, 'it should appear that violation of the rule has or will result in prejudice to the party asserting the violation. * * * The object of sanctions should be to prevent the party who fails to comply with the rule from profiting by his own violation. In cases where there is an honest mistake and the harm can be undone, it may frequently occur that a continuance or some other remedy would be adequate but, where the violation is willful and the party guilty of the violation seeks to take advantage of it at a time when the harm cannot be undone, suppression of the evidence may very well be the proper and only available remedy.' Gebhard v. Niedzwiecki, 265 Minn. 471, 122 N.W.2d 110, 115(5--7). '(W)here a party is surprised and prejudice could have resulted, the court will have to determine, in its discretion, whether to exclude the evidence, or to continue the case, or whether under some circumstances it would be sufficient to recess the case long enough to permit the complaining party to make necessary inquiry and investigation.' Laws v. City of Wellston, supra, 435 S.W.2d at 375. The trial court should act 'to prevent the party propounding the interrogatories from being misled and prejudiced and to protect the answering party against his own mistake or inadvertence.' Critcher v. Rudy Fick, Inc., Mo., 315 S.W.2d 421, 429(11). Account should also be taken of the time when the violation comes to light, i.e., if the transgression is made known before commencement of the trial, a continuance might be proper provided serious harm will not result to the complaining party, but considering the infeasibility of granting a recess after a trial has commenced, especially in the middle of a jury trial, the only practicable remedy may be to exclude the testimony of the surprise witness. 74 Harvard Law Review, Developments--Discovery, at pp. 962--963. If the undisclosed witness is offered at trial to testify to merely formal matters, or if his testimony is cumulative of other evidence, the interrogating party may not be prejudiced by the testimony albeit he is surprised by the production of the witness. Likewise, if the witness is one whom the interrogating party would normally have interviewed in a routine investigation, it has been said that the objecting party, who does not claim surprise, would not be prejudiced by the admission of the testimony. King v. Cardin, 229 Ark. 929, 319 S.W.2d 214, 217--218(5). We additionally believe the trial court should ponder how the denied information could have been put to real and functional use by the interrogating party had it, in fact, been supplied with the identity of the witness when due. The violator has a duty, 'by a sound and compelling showing of just cause' (Central & Southern Truck Lines, Inc. v. Westfall GMC Truck, Inc., Mo.App., 317 S.W.2d 841, 847), to demonstrate why he failed to comply with the rule if he is to avoid the consequences which the court may properly apply for violation. There are, of course, other facts upon which a trial court must dwell to gain understanding of the correct course to follow--these, of necessity, will depend upon the particular circumstances and showing in each individual case.

We glean from the reported colloquy between court and counsel which ensued from defendants' objections, that the court, in addition to hearing testimony and considering arguments, took time to reacquaint itself with the opinion in Laws v. City of Wellston, supra, 435 S.W.2d 370. Plaintiff has not contended at any time that defendants were not genuinely surprised by the identity of the three proposed witnesses, but argues that defendants' counsel should have been prepared to cross-examine all land value experts, whoever they might have been, and that the trial court could have undone the harm produced by the board's violation of the rule by granting a 'continuance (recess) of this trial for the purpose of allowing defendant time to interview by deposition, or whatever,' the surprise witnesses. The court acknowledged the alternative sanctions available and, in response to pointed inquiry if the exclusion of the witnesses was to be predicated 'on a determination of prejudice,' stated: 'I don't think it would be much question as to prejudice to them, a witness they won't know about, and had no knowledge of, for the purpose of cross examination.'

In most all eminent domain cases the paramount issue concerns the amount of the condemnees' damages (State ex rel. State Highway Commission v. Davis, Mo.App., 466 S.W.2d 172, 173) and that was the principal issue in this cause. The board's surprise witnesses were called to testify on this subject; they were not offered as cumulative witnesses or ones to speak on formal matters. Defendants, in view of their interrogatory, had the right to know the identity of plaintiff's appraisers and to take their pretrial depositions if desired. State ex rel. Uregas Service Co. v. Adams, 364 Mo. (banc) 389, 394, 262 S.W.2d 9, 12. Although, if...