State Highway Commission v. Beets

• Decision Date: 16 December 1974
• Docket Number: No. 11356,11356
• Citation: 88 S.D. 536,224 N.W.2d 567
• Parties: The STATE HIGHWAY COMMISSION of the State of South Dakota on Behalf of and In the Name of the State of South Dakota, Plaintiff and Respondent, v. Fred BEETS and Gean Beets, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 567

224 N.W.2d 567

88 S.D. 536

The STATE HIGHWAY COMMISSION of the State of South Dakota on Behalf of and In the Name of the State of South Dakota, Plaintiff and Respondent, v. Fred BEETS and Gean Beets, Defendants and Appellants.

No. 11356.

Supreme Court of South Dakota.

Dec. 16, 1974.

Kermit A. Sande, Atty. Gen., and Carl W. Quist, Asst. Atty. Gen., Pierre, for plaintiff and respondent.

A. P. Fuller, of Kellar & Kellar & Fuller, Lead, for defendants and appellants.

DUNN, Chief Justice.

A Lawrence County jury awarded defendants the sum of $11,000 from the plaintiff, State of South Dakota, for the taking of property for highway purposes. Defendants appeal contending that (1) the trial court erred in not admonishing the jury to disregard a statement of plaintiff's counsel during final argument to the effect that the jury was determining the value of real property for condemnation purposes from Spearfish all the way to the Wyoming border, and (2) the trial court erred in not permitting defendants to make an offer of proof as to what the witness Eddy's excluded testimony would be. We reverse.

During closing argument, counsel for the State of South Dakota stated:

'Now, your job here today as I see it is to decide what the State of South Dakota is going to pay for land running from north of Spearfish clear to the Wyoming line.'

Upon objection by the defendants that the statement was prejudicial and an incorrect measure of damages, the trial court overruled the objection in the following language:

'Well, I think it is clear, however, that other land is going to be affected by the valuation put on this and I think it's fair comment.'

The statement of counsel did not embody the correct measure of damages, that is, the highest reasonable market value of the condemnees' own property. City of Huron v. Jelgerhuis, 1959, 77 S.D. 600, 97 N.W.2d 314. It is the extravagant type of statement of counsel which is not necessarily prejudicial if the trial court corrects it and admonishes the jury to disregard the statement. In this case, however, the court not only refused to admonish the jury but indicated that 'other land is going to be affected by the valuation put on this and I think it's fair comment.'

Ordinarily, the rule in this court as to statements of counsel is as set out in Rogers v. Black Hills Speedway, Inc., 1974, S.D., 217 N.W.2d 14:

'The trial judge was there and heard the argument and he is given wide discretion in deciding whether arguments of counsel were prejudicial.'

This rule, of course, is not appropriate where the trial court has compounded the error by placing the court squarely behind the incorrect statement of the law. We have held that prejudicial error is "error as in all probability must have produced some effect upon the final result of the trial, namely, the verdict of the jury." State v. Reddington, 1963, 80 S.D. 390, 125 N.W.2d 58.

While it is true that the instructions of the court did set out the proper measure of damages, there nevertheless remains a grave question whether the jury felt free to consider the over-all cost of this entire right-of-way in its deliberations as to the damages to be awarded these defendants for their tract. This erroneous statement, expressly approved by the court, came at the close of the trial and after other instructions had been read to them. We conclude that the statement of counsel as approved by the court constituted prejudicial error.

As the matter is going back for retrial, we will also consider the other assignment of error. Defendants only assigned as error the fact that the trial court refused to permit an offer of proof as to what the substance of Mr. Eddy's testimony would be. SDCL 15--6--43(c) provides:

'In an action tried by a jury, if an objection to a question propounded to a witness is sustained by the court, the examining attorney may make a specific offer of what he expects to prove by the answer of the witness. The court may require the offer to be made out of the hearing of the jury. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. In actions tried...