State v. Artz

• Decision Date: 11 January 1932
• Docket Number: No. 17327.,17327.
• Citation: 45 S.W.2d 81
• Parties: STATE ex rel. STATE HIGHWAY COMMISSION v. ARTZ et al.
• Court: Missouri Court of Appeals

45 S.W.2d 81

STATE ex rel. STATE HIGHWAY COMMISSION v. ARTZ et al.

No. 17327.

Kansas City Court of Appeals. Missouri.

January 11, 1932.

Appeal from Circuit Court, Cooper County; W. S. Stillwell, Judge.

"Not to be officially published."

Condemnation suit by the State on the relation of the State Highway Commission against Louisa Artz and others. From the judgment, the Highway Commission appeals.

Reversed and remanded.

John W. Mather, of Jefferson City, and John C. Collet, of Salisbury, for appellant.

H. M. Atwell, and R. F. White, both of Eldon, for respondents.

TRIMBLE, P. J.

A condemnation suit instituted by the state highway commission to secure the right of way for state highway No. 52 through defendants' farm. It is unnecessary to go into the matter of the highway's entrance into or progress through the farm, nor of the damage thereto by reason of cuts and fills or of the separate portions into which the farm is divided and left by the establishment of the road.

Commissioners were appointed, and, after having duly qualified, viewed the land. They considered the damages, and, after deducting therefrom the special benefits to the farm arising from the establishment of the paved highway, awarded defendants damages in the sum of $250. Exceptions to the report were filed, and, after a trial thereon in the circuit court, the jury found that there were no special benefits, and fixed the damages at $510. The highway commission has appealed.

Although a number of errors were complained of in plaintiff's motion for new trial, only one is relied upon or presented in this court on appeal.

Over the strenuous and repeated objections and exceptions of plaintiff, the court allowed defendants to cross-examine two of plaintiff's witnesses (who were two of the commissioners appointed by the circuit court to assess defendants' damages, and who did so and made their report, the defendants' exceptions to which were then being tried), and bring out in such cross-examination the facts that they were commissioners appointed by the court, had viewed the land, assessed the damages, and had made their report to the court. From one of such witnesses, Commissioner Chrisman, defendants elicited the amount of the commissioners' award. In the way the foregoing statement of the error complained of is set forth, it may appear that the objections and exceptions were to the cross-examination of said witnesses. Such is not the case; the plaintiff made no objection to the cross-examination of said witnesses, but only to the bringing out, in the course thereof, of the above-mentioned forbidden matters.

Of course, it is well settled that no reference to such matters should be made before the jury. By this is meant that the fact that the witnesses were commissioners who had assessed the damages should not be allowed to go to the jury, either directly or indirectly. School District of Kansas City v. Phoenix Land, etc., Co., 297 Mo. 332, 339, 249 S. W. 51. And getting the amount of the commissioners' award before the jury is doubtless worse and more harmful. In the case of City of St. Louis v. Schopp, 325 Mo. 480, 30 S.W.(2d) 733, 734, 735, the Supreme Court holds that this is erroneous not only where the exceptions are tried before a jury, but also in cases where they are tried before the court; and the reasons therefor are clearly set forth.

We need not go into the question whether the introduction of the mere fact that the witness had been a commissioner, and which did not direct attention in any way to the report and its contents, would constitute reversible error, since, in the case at bar, that is exactly what was done. It seems to us, however, that to go into such "mere fact" is treading upon exceedingly dangerous ground. For, to even that extent, it is robbing the trial of one of its chief characteristics; namely, that of a trial de novo before another tribunal uninfluenced by what the first tribunal has done. Commissioners are appointed by the court and are required to qualify and make their report under oath. They are officers of the court, and they are likely to be looked upon as such by the jury, and the natural impulse is to accord a greater weight to their views and opinions, and to...