State ex rel. State Highway Commission v. Eilers, 51448

• Decision Date: 12 September 1966
• Docket Number: No. 2,No. 51448,51448,2
• Citation: 406 S.W.2d 567
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. Rey EILERS et al. on Exceptions of Ransom E. Dudley and Louise Dudley, Appellants, Fulton National Bank, a corporation, and Clyde Boyd, Trustee, Defendants
• Court: Missouri Supreme Court

Page 567

406 S.W.2d 567

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. Rey EILERS et al. on Exceptions of Ransom E. Dudley and Louise Dudley, Appellants Fulton National Bank, a corporation, and Clyde Boyd Trustee, Defendants.

No. 51448.

Supreme Court of Missouri, Division No. 2.

Sept. 12, 1966.

Motion for Rehearing or for Transfer to Court En Banc Denied

Oct. 10, 1966.

Robert L. Hyder, Thomas E. Cheatham, Jefferson City, for respondent.

Robert C. Smith, Columbia, for appellants, Smith & Lewis, Columbia, of counsel.

STOCKARD, Commissioner.

In this action for condemnation of land for highway purposes the jury award of just compensation was $12,250 and the landowners have appealed. The difference between the award and that to which appellants contend they are entitled under their evidence exceeds $15,000.

Appellants' property consisted of a triangular shaped tract of land containing 8.42 acres with 1,650 feet fronting on U.S. Highway 40 and 535 feet fronting on a county road. For use in the construction of Interstate Highway 70, respondent acquired 4.65 acres upon which was located some buildings used for commercial purposes and a well which supplied water to appellants' house located on that part of the land not taken. Appellants contend in their first three points that the award is so inadequate that it denies them just compensation. In the remaining two points they assert prejudicial error resulted from the admission of certain evidence and from certain remarks and conduct of respondent's counsel. If a new trial is required by reason of either of the last two points there would be no occasion to review the contention concerning the adequacy of the award. We shall, therefore, consider first the latter two points.

Appellants assert that the trial court 'erroneously admitted into evidence photographs on behalf of the State of Missouri which had not been properly identified and which were taken long before and long after condemnation,' and which 'did not correctly depict the appearance of the property at the time of condemnation and which deceived the jury and prejudiced them against the appellants.' Only from the argument in the brief can we determine to what photographs reference is made and the reasons why it is contended they were inadmissible. We shall set forth the factual circumstances pertaining to each such exhibit and group them when appropriate to do so.

Respondent's Exhibit 4, to which no objection is now made, was an aerial photograph of appellants' land. It was agreed that it did not show a building used for tire storage, and with this understanding the exhibit was admitted without objection. Respondent's Exhibit 5, to which objection is now made, was an enlargement of a portion of Exhibit 4. When offered in evidence appellants objected because 'it does not show the tire storage building and there has been no evidence as to when this was taken, whether it correctly reflects the appearance of the property on June 11 of 1963, prior to condemnation * * *.' The objection was overruled, and the witness then made reference to a ditch shown on the photograph.

Respondent's Exhibit 2 was a photograph taken at ground level on March 12, 1962 of only a portion of the buildings on appellants' land. It shows what appears to be a cluster of two or three frame buildings and a shed used for garage purposes, a wrecked or junked automobile, and a pile of debris consisting of old tires and junked automobile parts. Counsel for appellants brought out from the identifying witness that there was an additional shed not shown on the photograph, apparently because it was behind the buildings shown, but the witness stated that the photograph 'portrays the front' of the buildings. The objection to this exhibit, which was overruled, was that 'I don't think there has been sufficient identification of that.' On rebuttal Mr. Dudley, one of the appellants, was asked if the photograph 'correctly shows the appearance of those garage buildings as of the time of this condemnation,' and he replied, 'No, it does not.' He then explained that he had 'bought out' a salvage yard about that time and the debris shown in the photograph had come from that yard, and that because of muddy ground the debris had not been moved to his salvage yard. After this testimony there was no request made that the court withdraw Exhibit 2 from the evidence and instruct the jury to disregard it.

Respondent's Exhibits 8, 9, 11 and 12 were four photographs of a group of nine, all taken on August 5, 1963. Exhibits 8 and 12 show the condition of portions of the driveway, and were so identified by Mr. Dudley. Exhibit 11 was identified by Mr. Dudley as showing 'a corner of my house' and 'my garden.' The principal and predominate objects shown in the photograph were two old model automobiles parked on a grassy area. Exhibit 9 was identified by Mr. Dudley as showing the driveway, a hole 'off of my driveway,' and a building 'in the process of being torn down.' The objection to the admission in evidence of these exhibits was that 'I don't think he has asked the witness to identify those in such a manner as to make them admissible.' Counsel for respondent then stated that if there is 'any question' concerning identification 'we can call Mr. Dudley back.' The objection was overruled. On rebuttal Mr. Dudley stated that Exhibit 9 did not correctly portray the condition of the property because 'here's the store building which had already been removed, or in the process' of being removed, and 'It looks like a little debris around there.' He further stated that 'this was 90 days after the taking' and 'I had abandoned the driveway completely.' As to Exhibits 8 and 12 he was asked 'whether those correctly portray the appearance of the driveway at the time of condemnation or possession or whether they (the photographs) were (taken) at a later time?' His answer, without any explanation, was, 'No, this isn't a proper identification.' There was no request that the court withdraw Exhibits 8, 9 and 12 from the evidence and instruct the jury to disregard them.

Respondent's Exhibits 16 and 17 were photographs of nearby property concerning which there was testimony indicating that comparable sales had occurred. When they were first offered in evidence, counsel for appellants objected because 'There has been no proper identification,' and that objection was sustained. Exhibit 16 was later admitted without objection. Exhibit 17 was then identified as a photograph of a nearby grocery store and service station which recently had been sold. The sale had previously been referred to in the testimony. The witness stated that while he had never stopped there, he had 'known it' for five years, and referring to the photograph he stated that the property 'looked about that way' since he had known it. The objection to Exhibit 17, which was overruled, was that it was not 'sufficiently identified.'

The general rule concerning the admission in evidence of a photograph is that the party offering it 'must show by extrinsic evidence that the photograph is an accurate and faithful representation of the place, person or subject it purports to portray. This authenticity may be established by any witness who is familiar with the scene, object or person portrayed and is competent to speak from personal observation.' State ex rel. State Highway Commission v. Cone, Mo., 338 S.W.2d 22, 27. 'If a photograph correctly shows the situation and surroundings as far as it purports to show them, it should not be excluded because it does not show all the detailed facts and surroundings.' Brock v. Gulf, Mobile and Ohio Railroad Company, Mo., 270 S.W.2d 827. In addition, the fact alone that a photograph of a location or an object was taken before or after an event, and before or after changes have occurred, does not make the photograph inadmissible in evidence if the extent of the changes is explained. Brock v. Gulf, Mobile and Ohio Railroad Company, supra. When those changes are explained, and 'the photographs reasonably may aid the jury in arriving at an understanding of a fact or facts that have a direct bearing upon the issues,' they are admissible in evidence. Davis v. Illinois Terminal Railroad Company, Mo., 307 S.W.2d 395, 400. These points of differences between what the photograph shows and what is contended to be the actual facts may be made 'the basis for cross-examination, thus enabling the jury to give proper weight to the evidence.' Young v. Dunlap, 195 Mo.App. 119, 190 S.W. 1041, 1044, cited with approval in State v. McGee, 336 Mo. 1082, 83 S.W.2d 98, 107.

When we examine the circumstances of the admission in evidence of the various photographs to which complaint is now made in the light of the above rules it is obvious that no prejudicial error occurred. Exhibit 2, an aerial photograph did not show a building used for tire storage, apparently because the building was not there when the photograph was taken, but the photograph accurately portrayed the remainder of appellants' property. The absence of the one building was explained to the jury. Exhibit 5 was an enlargement of a portion of Exhibit 4 which was admitted without objection. There is no challenge to the accuracy of Exhibit 5 as an enlargement. Exhibits 8, 9, 11 and 12 were identified as being photographs of portions of appellants' property. Appellants could explain any differences from what they contended were the actual facts, and they attempted to do so as to three of them. However, that did not destroy their admissibility, but presented an issue to the jury to determine what weight, if any, it would give to the photographs. No objection was made to Exhibit 16, and none can now be made. The identification of Exhibit 17 was sketchy, but it pertained to a collateral matter, and there has been no demonstration of prejudice even if the identification be considered insufficient, and we do not so...