State ex rel. State Highway Commission v. Meadows

• Decision Date: 22 July 1969
• Docket Number: No. 8839,8839
• Citation: State ex rel. State Highway Commission v. Meadows, 444 S.W.2d 225 (Mo. App. 1969)
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Luther MEADOWS et al., Donald L. Gustke and Perly Marlene Gustke, Respondents.
• Court: Missouri Court of Appeals

Page 225

444 S.W.2d 225

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Luther MEADOWS et al., Donald L. Gustke and Perly Marlene Gustke, Respondents.

No. 8839.

Springfield Court of Appeals, Missouri.

July 22, 1969.

Robert L. Hyder, Jefferson City, William T. Powers, Springfield, for appellant.

Joe C. Crain, Phillip R. Garrison, Ozark, for respondents.

TITUS, Judge.

Johnny Lawson was one of three commissioners appointed by the Circuit Court of Christian County in this eminent domain proceeding. 'After having viewed the property,' the commissioners returned 'under oath * * * their report * * * setting forth, and stating * * * the net damages' of defendants to be $800. V.A.M.R. 86.06. Exceptions to this report (V.A.M.R. 86.08) yielded a trial wherein the jury allowed defendants $3,500 for their condemnation damages. Plaintiff appealed, and its diffusive claims for a new trial are centered upon the alleged errors of the trial court in refusing to sustain plaintiff's offers motions and objections relative to the testimony of Lawson and one C. C. Keller, both called as expert witnesses by the defendants.

Contrary to the commissioners' report, Lawson testified that in his opinion defendants' net damages were $4,000. Without objection, Lawson was asked on cross examination if he, and the two others appointed by the court, had previously made another appraisal of defendants' damages and had filed and signed a report assessing the damages at $800. The unequivocal answer was 'Yes.' When questioned, 'Now, you are coming into court here and saying the damages are $4,000.00?' Lawson replied, 'The two boys overruled me. They didn't see what I seen when we assessed the damages.' Counsel for plaintiff then undertook to employ and offer into evidence the commissioners' report, but out of the jury's hearing defendants' lawyer objected because it 'shows the signature of two other men on the appraisal (one of whom was the son of a juror) who are not witnesses in this case.' Plaintiff's attorney countered that he was entitled to use the report in 'cross examination for the purpose of contradiction of a commissioner who testifies to a different sum than that stated in the commissioners' award (and to) show that the witness testified to two different figures on the same property.' Noting that Lawson had admitted signing the $800 report and had admitted he was testifying to a figure different from that to which he had once attested, the trial court refused plaintiff permission to use the report because '(t)here is no contradiction for you to prove.' The trial court also denied plaintiff's supplications for a mistrial or to strike Lawson's entire testimony for the averred reason 'that the allowance of two different figures in testimony by this witness is prejudicial.' Subsequently invited to account for his change of mind, Lawson explained his first opinion that the defendants' damages were $800 was based upon an understanding the grade of the new highway in front of defendants' property 'wouldn't be raised but about two foot higher than the old highway,' whereas, in fact, the change of grade was actually just 'two inches * * * short (of) seven feet.'

Initially we observe that when a jury trial is obtained in a condemnation suit, the report of the commissioners becomes functus officio, the question of damages is tried de novo by the jury as though no commissioners had ever been appointed, and although a commissioner is competent to be a witness for either party, the jury should not be informed that he had been a commissioner and it is reversible error to advise the jury of the amount of the commissioners' award. St. Louis-San Francisco Railway Co. v. Morrison, Mo.App., 439 S.W.2d 27, 30(11); State ex rel. State Highway Commission v. Hackett, Mo.App., 370 S.W.2d 712, 715--716(3); State ex rel. State Highway Commission v. Mahon, Mo.App., 350 S.W.2d 111, 114; Arkansas-Missouri Power Company v. Hamlin, Mo.App., 288 S.W.2d 14, 18(8); State ex rel. State Highway Commission v. White, Mo.App., 254 S.W.2d 668, 670(1, 2). Nevertheless, a jury trial in an eminent domain case is governed by the same procedure applicable, to ordinary civil causes (State ex rel. State Highway Commission v. Green, Mo., 305 S.W.2d 688, 694(6)), and the cross-examiner of a commissioner who is called as a witness should be permitted to make inquiry (as affecting the credibility and weight of his testimony) whether the commissioner has made a prior statement as to damages inconsistent with his testimony on direct examination. City of St. Louis v. Worthington, 331 Mo. 182, 193--194, 52 S.W.2d 1003, 1008--1009(6). A witness may be discredited or impeached by proof of a contrary statement relating to a material matter, whether that statement is made in or out of court (Neavill v. Klemp, Mo., 427 S.W.2d 446, 448(6, 7); State v. Cross, Mo., 357 S.W.2d 125, 128(9)), but evidence of such a statement does not destroy the prima facie probative effect of the testimony of the witness at the trial. Miller v. Multiplex Faucet Company, Mo., 315 S.W.2d 224, 227(1); Smith v. American Car & Foundry Div., A.C.F. Industries, Inc., Mo.App., 368 S.W.2d 515, 519(7). However, if the witness unequivocally admits he has made a prior inconsistent or contradictory statement, futher proof thereof is unnecessary and inadmissible because the witness, by his admission, has thereby impeached himself (State v. Wallach, Mo., 389 S.W.2d 7, 12--13(3); 98 C.J.S. Witnesses § 610, pp. 611--613), and the party producing him is thereafter entitled to ask questions or offer evidence to explain, counteract or justify the impeaching testimony. Aboussie v. McBroom, Mo.App., 421 S.W.2d 805, 807(6).

We perceive no error in the trial court's refusal to permit introduction or use of the commissioners' report. Lawson admitted he had made an inconsistent statement as to defendants' damages, and additional proof thereof became unnecessary and inadmissible. Also, having become functus officio, the report of the commissioners could not serve as evidence of the amount of damages, admission or use of the report by plaintiff's counsel would have wrongfully apprised the jury of the fact Lawson had been a commissioner, and the jury had 'no more right to know what the report or assessment of damages of the commissioners was than any jury in any case has to know what the verdict of a previous jury was in the same case. Kansas City Southern Ry. Co. v. Second Street Imp. Co., 256 Mo. 386, 421, 166 S.W. 296, 306. Although Lawson stood impeached as a witness because he admitted to a prior inconsistent statement, this did not serve to totally destroy his testimony which...