State ex rel. State Highway Commission v. Dalton, 58196

• Decision Date: 10 September 1973
• Docket Number: No. 58196,58196
• Citation: 498 S.W.2d 801
• Parties: STATE ex rel. STATE HIGHWAY COMMISSION of Missouri, Relator, v. The Honorable Donald E. DALTON, Judge, Respondent.
• Court: Missouri Supreme Court

Page 801

498 S.W.2d 801

STATE ex rel. STATE HIGHWAY COMMISSION of Missouri, Relator, v. The Honorable Donald E. DALTON, Judge, Respondent.

No. 58196.

Supreme Court of Missouri, En Banc.

Sept. 10, 1973.

Robert L. Hyder, Jefferson City, Gregory F. Hoffman, Kirkwood, for relator.

Paul F. Niedner, St. Charles, Reginald P. Bodeux, St. Louis, Niedner, Moerschel, Nack & Ahlheim, St. Charles, for respondent.

ORIGINAL PROCEEDING IN PROHIBITION

MORGAN, Judge.

In this original proceeding in prohibition, relator seeks to prohibit respondent from enforcing an order that relator's prospective 'expert' witnesses in a condemnation action divulge their 'conclusions' as reflected in appraisal reports which they prepared at the request of and for relator.

Factually, it appears that on July 14, 1972, relator initiated an action in St. Charles County, Missouri, to condemn certain real property of several named landowners for improvement of State Highway No. 61; that relator, as the condemning authority, employed certain supposedly qualified individuals to appraise the properties and determine the extent of damage; that on August 20, 1972, the landowners issued a Notice To Take Depositions of the appraisers employed by relator and a Subpoena Duces Tecum for them to produce their 'appraisal reports'; that on August 22, 1972, in response to said notice, one of relator's appraisers appeared for questioning but upon advice and objection posed by relator (based on Missouri Supreme Court Rule 57.01(b), V.A.M.R.) he refused to reveal his ultimate conclusions reference damages; that such objections were certified to the trial court; that subsequent thereto an order of condemnation was entered on September 22, 1972; that, thereafter, the trial court on December 4, 1972, entered the order which relator now seeks to avoid.

We have read the deposition but need not detail all of the questions asked, State ex rel. Norfolk & Western Ry. Co. v. Dowd, 448 S.W.2d 1 (Mo. banc 1969), nor set out in full the order entered. It is sufficient to say that the order called for the witnesses to divulge their conclusions or 'not be permitted' to testify at trial. From a reading of the lengthy order, it is quite apparent that the trial court was aware of the general law on the subject, i.e '. . . that the work product in question is privileged as having been prepared by relator's agent in anticipation of litigation.' State ex rel. State Highway Commission v. Jensen, 362 S.W.2d 568, 570 (Mo. banc 1962). For instance, a portion of the order provided: 'The Court is making its rulings as of a time subsequent to the making of the order of condemnation and is considering the issues here involved at a time and stage of the trial subsequent to the making of the order of condemnation. The Court's rulings are intended to be applicable to a condemnation case filed but where the 'trial' has begun. This Court considers the 'trial' of this cause to have begun and to be in progress for the purpose of these rulings. This Court would not overrule plaintiff's objections and would not require answers to questions propounded of the witness at a time prior to when the order...