State ex rel. State Highway Commission v. Kalivas

• Decision Date: 11 September 1972
• Docket Number: No. 2,No. 56096,56096,2
• Citation: 484 S.W.2d 292
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. William KALIVAS and Helen Kalivas, Exceptions of William Kalivas and Helen Kalivas, Respondents
• Court: Missouri Supreme Court

Page 292

484 S.W.2d 292

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. William KALIVAS and Helen Kalivas, Exceptions of William Kalivas and Helen Kalivas, Respondents.

No. 56096.

Supreme Court of Missouri, Division No. 2.

Sept. 11, 1972.

Robert L. Hyder, Chief Counsel, Tom J. Helms and Earl H. Schrader, Jr., Asst. Counsel, Kansas City, for appellant.

R. B. Miller, Jr., Platte City, for respondents.

MORGAN, Presiding Judge.

Plaintiff, the State Highway Commission of Missouri, appropriated certain land of the defendants for construction of Highway I--635 in Platte County. Commissioners, appointed by the court, assessed defendants' damage at $49,500. After trial to a jury on the exceptions, a verdict was returned in favor of defendants in the amount of $7,000. Thereafter, judgment, by way of refund, was entered in favor of plaintiff for $42,500 plus interest. Defendants were awarded a new trial, and plaintiff has appealed.

Facts sufficient to consider the question posed may by stated summarily. The record reflects: (1) that the landowners employed three appraisers to acquaint themselves with the taking and to be prepared to establish the damage at an 'informal hearing' before the court appointed commissioners, and, presumably, later at trial if exceptions were filed; (2) that two of the three did so, but the third, whom we will hereinafter refer to as No. 3, was either not prepared or available on the date of such hearing, and his services apparently were terminated; (3) that defendants, at the trial, called appraisers No. 1 and No. 2 as witnesses on the issue of damages; (4) that one defendant took the stand to testify on behalf of all owners, and that while being cross-examined was interrogated about the employment of appraiser No. 3; (5) that plaintiff, during its case in chief, requested permission to call No. 3 for the purpose of placing his opinion as to the damage before the jury, but the trial court refused the request on the ground that the same constituted a 'work product' of defendants; (6) that during closing argument, plaintiff submitted the inference that testimony of No. 3 would have been prejudicial to defendants; and (7), that the order calling for a new trial concluded that '. . . the disclosure to the jury of an additional appraiser . . . having been employed together with failure of (defendants) to use said appraiser . . . did possibly, if not probably, prejudice the jury . . ..'

As the parties suggest, it does not appear that this court has decided the specific issue submitted, i.e., whether a party to a condemnation action can call a so-called expert appraiser of his adversary to express an opinion, or whether such opinion is privileged by virtue of it being a work product of such adversary. As plaintiff suggests: 'The question appears to have been partially answered in other states with lack of uniformity in result and reasoning.'

Before considering the general question presented, it is necessary to supplement the factual summary noted to delineate the specific problem of the trial court in this particular case. Between the time that the employment of No. 3 was terminated and the trial, No. 3 had sued defendants for a fee for his services, obtained judgment and initiated a judgment debtor examination. Such proceedings were described by the trial judge, out of the jury's presence, as follows: '. . . it was very bitter, acrimonious you know, 'I'll get that son of a bitch' and talk like that.'

Nevertheless, we do have the guidance of opinions of the appellate courts of this state on the general subject.

In State ex rel. State Highway Commission v. Jensen, Mo., 362 S.W.2d 568, a landowner, prior to trial through discovery, sought to elicit the 'names of the persons inspecting the property, and the results of such inspections.' This court sustained the commission's objections as to any conclusions reached reference damages, after considering Supreme Court Rules 57.01 and 57.20, V.A.M.R. pertaining to discovery, by holding that the same was 'work product' and therefore 'protected and privileged.'

Recently, in Missouri State Park Board v. McDaniel, Mo.App., 473 S.W.2d 774, 777, the court had occasion to delineate further such limitations on discovery. Therein, it was said:

'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 * * * 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 proper objections were made, defendants would not, either via discovery interrogatories or depositions, have the right under Rule 57.01(b) to require plaintiff or its experts to produce the contents or substance of the appraisal reports (State ex rel. State Highway Commission v. Jensen, Mo. (banc) 362 S.W.2d 568, 570(2)) or to require the opinions and conclusions of such experts (State ex rel. Missouri Public Service Co. v. Elliott, Mo. (banc), 434 S.W.2d 532, 537--538(7)), this would not have prohibited defendants' counsel from deposig or otherwise interviewing these prospective witnesses or from conducting pretrial investigations regarding their qualifications.' See also Barnes v. Boatmen's Nat. Bank of St. Louis, 348 Mo., 1032, 156 S.W.2d 597; State ex rel. Terminal R. Ass'n of St. Louis v. Flynn, 363 Mo. 1065, 257 S.W.2d 69; State ex rel. Pete Rhodes Supply Co. v. Crain, Mo., 373 S.W.2d 38; State ex rel. Filkey v. Scott, Mo.App., 407 S.W.2d 79, 84(10); State ex rel. McNutt v. Keet, Mo., 432 S.W.2d 597; and, State ex re. Mueller...