State ex rel. State Highway Commission v. White
| Decision Date | 10 February 1953 |
| Docket Number | No. 7090,7090 |
| Parties | STATE ex rel. STATE HIGHWAY COMMISSION v. WHITE. |
| Court | Missouri Court of Appeals |
Robert L. Hyder, West Plains and Bruce A. Ring, Jefferson City, for appellant.
O. A. Tedrick, Poplar Bluff, Green & Green, Will H. D. Green and H. D. Green, West Plains, for respondent.
This is a highway condemnation proceeding. The jury returned a verdict in favor of defendant for $1500 damage and plaintiff appealed.
Four witnesses, testifying for the defendant landowner, stated that the land prior to the acquisition of the right of way by the Highway Department was of a value ranging between $3500 and $5000 and that after the acquisition of the right of way, it was worth from $2000 to $2500 less. Some arrived at these amounts by valuing it as a whole and some by placing a value on it by the acre.
Five witnesses testifying for the plaintiff placed the value of the land prior to its acquisition by the Highway Department at amounts ranging from $1500 to $2500 and stated that in their opinion it had been benefitted by the building of the road as much as $400 or $500.
The last witness used by the plaintiff was one D. A. Pentecost, who testified that he had lived in Howell County since 1926, that he was acquainted with real estate values in the neighborhood where defendant's eighty acre farm was situated; that he lived within three or four miles of it on the same road that went through defendant's place and that her farm was worth about $2000 before the right of way was taken and that immediately after the road was built, her place was worth $500 more than that. He further testified that in making this estimate, he was taking into consideration the damage that might have been done to her place by taking the land, etc. On cross-examination, defendant's counsel asked if he had been one of the appraisers that appraised the defendant's land. To this question no objection was made. He stated that he had. He was then asked:
This question was interrupted by counsel for the Highway Department who objected and the court, after considerable discussion out of the presence of the jury, struck all of this witness' testimony from the record and instructed the jury to disregard it in its entirety. The court further instructed them that they must not take into consideration any testimony or inference relative to what the appraisers or commissioners had done in making their report.
The record before us shows that this same witness had been appointed one of three commissioners to assess the damage to this piece of land August 29, 1950, and that he had taken an oath that he would 'faithfully and impartially perform and discharge all his duties as a commissioner in this cause in accordance with the law and the Constitution.' On this same day, the three commissioners, one of whom was Mr. Pentecost, signed and filed a written report in which they found the damage to the land in question to be $500 as a result of the appropriation of the right of way. This report was sworn to before the Circuit Clerk of Howell County on the same day, and in the jurat it was stated that 'to the best of their individual judgments' all the facts stated therein are 'fair and just, both to those who will receive and to those who must pay said damages.'
Under this state of facts, we have this anomalous situation; the same witness on the 29th of August, 1950, as a Commissioner, swearing the property has been damaged by the acquisition of the right of way in the sum of $500 and on the 18th day of September, 1951, as a witness at the trial, testifying under oath that the same property has been benefitted $500 and that the landowner was entitled to nothing.
It has been held that a commissioner or appraiser of the land is a competent witness as to the damages at the trial. City of St. Louis v. Abeln, 170 Mo. 318, 70 S.W. 708.
But it has also been held that the jury should not be informed that he had been a commissioner. City of St. Louis v. Schopp, 325 Mo. 480, 30 S.W.2d 733. City of St. Louis v. Smith, 325 Mo. 471, 30 S.W.2d 729. City of Cape Girardeau v. Hunze, 314 Mo. 438, 284 S.W. 471, 47 A.L.R. 25.
Furthermore, it is reversible error for the jury to be informed of the amount of the award of the commissioner. City of St. Louis v. Schopp, supra; School District of Kansas City v. Phoenix Land & Improvement Co., 297 Mo. 332, 249 S.W. 51.
The trial in the circuit court is de novo, the award of the commissioners is functus officio and is not competent evidence at the trial by a jury. A commissioner's report is based, usually, on their own knowledge of land values, a view of the premises, talks with persons residing in the vicinity, testimony of witnesses taken in a rather informal way and their report and award are their conclusions so arrived at. The jury's verdict must be upon legal evidence presented at the trial.
But none of the cases above cited were based upon the facts confronting us. Clearly it would be unfair to the landowner for the plaintiff to use this witness, under the circumstances here, and the defendant be precluded from showing for the purpose of impeachment that on a previous occasion, under oath, he had sworn that the landowner was damaged in the sum of $500, while now testifying, also under oath, that the landowner was benefitted $500--a difference of $1000 in his two estimates, both referring to the same time--the time of taking. See State ex rel. State Highway Commission v. Blobeck Inv. Co., 233 Mo.App. 858, 110 S.W.2d 860. Counsel for the landowner was caught between two horns of a dilemma, if he cross-examined the witness he must necessarily bring out the amount of the award which was $500, a fact which the jury should not know, and if he did not cross-examine the witness, the testimony goes unchallenged. Counsel for the landowner must have thought that the least damage would be done to his client's cause by cross-examining the witness as to this former written statement under oath, rather than let his testimony go unimpeached. But in either event, defendant was liable to be injured by this revelation. This was the situation confronting the learned trial court and it decided that the least damage could be done under the circumstances by excluding all of the testimony of this witness and instructing the jury to totally disregard it.
In offering this witness, the plaintiff knew, or should have known, that he had been an appraiser, knew what his report of damage had been as such and knew that there had been $1000 difference between his report as a commissioner and what he would testify to as a witness at the trial. Yet it introduced him as a witness and then sought to cut off cross-examination on a matter that could not be more material in affecting his credibility. The right to cross-examine under such circumstances was specifically upheld in City of St. Louis v. Worthington, 331 Mo. 182, 52 S.W.2d 1003, and the burden of requesting an instruction to limit such evidence to purposes of impeachment was upon plaintiff. It seems to us that the learned trial court, when confronted with this situation, had the right to exercise its discretion and we can think of no sounder method than that arrived at by the court, after sustaining plaintiff's objection. If the plaintiff was injured by the exclusion of this testimony, which we do not believe it was, as other witnesses testified to practically the same state of facts, it was in the nature of an invited injury because, when the objection to such cross-examination was made by its counsel, he was familiar with the entire factual situation. No objection was made to the evidence that the witness had been an appraiser (commissioner) which fact was also elicited on cross-examination.
We do not think the action of the trial court in excluding this testimony was reversible error. It was plaintiff's counsel that objected to the cross-examination and brought on the decision of the court to exclude the whole testimony.
Plaintiff-appellant objects to defendant's instruction...
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