State v. Bengal
| Decision Date | 07 February 1939 |
| Docket Number | No. 24726.,24726. |
| Citation | 124 S.W.2d 687 |
| Parties | STATE ex rel. STATE HIGHWAY COMMISSION v. BENGAL et al. (HOFFARTH et ux., Exceptors). |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.
"Not to be published in State Reports."
Condemnation proceeding by the State of Missouri, on the relation of the State Highway Commission, against Edward C. Bengal and others, wherein William Hoffarth and wife were exceptors. From a judgment for exceptors for $131.25, exceptors appeal.
Affirmed.
R. E. Kleinschmidt, of Hillsboro, for appellants.
Louis V. Stigall and Fred B. Hulse, both of Jefferson City, for respondent.
BENNICK, Commissioner.
This is a condemnation suit which was brought by the State Highway Commission for the appropriation of certain land, including a portion of a tract of land belonging to William Hoffarth and Lillian Hoffarth, his wife, the exceptors herein, for the establishment and construction of Highway No. 21TR (Traffic Relief Route No. 21), beginning at De Soto, in Jefferson County, and ending at Afton, in St. Louis County.
The commissioners who were appointed to assess the damages, after viewing the property, filed their report in court awarding the Hoffarths the sum of $210 as the amount of the damages sustained by them on account of the appropriation of six acres of their land for the right of way. Thereafter the Hoffarths filed their exceptions to such report, and upon a subsequent trial of the issue of damages to a jury, a verdict was returned assessing their damages at the sum of $131.25. Judgment was rendered accordingly, and exceptors' appeal to this court has followed in the usual course.
Exceptors' farm, which is located in the northern part of Jefferson County, consists in its entirety of two hundred twenty-five acres, of which some forty to fifty acres are in cultivation, being made use of particularly for the growing of berries and garden truck, for which character of products there is a market in the City of St. Louis just twenty five miles to the north. Prior to the construction of the new highway there was an unimproved county road which ran through the land and served as an outlet from the farm to the Lemay Ferry Road, which was a direct thoroughfare to the City of St. Louis. The new road, which is a part of the state's improved highway system, furnishes a shorter and much better route from the farm to the St. Louis market, but slightly increases the distance to be traveled to the village of Antonia, where Hoffarth had been accustomed to market his products prior to the making of the improvement. Exceptors' evidence tended to show that the course to be followed by the new road through the farm would serve to damage it very materially, while the evidence for the commission was to the effect that the construction of the improved highway, with its better means of ingress and egress, would result in a substantial net increase in the value of the land.
The points raised by exceptors have to do chiefly with rulings of the court in connection with the admission of evidence and the giving of instructions at the instance of the commission.
The first complaint is that the court erred in refusing to permit exceptors' witness Raebel to testify that exceptors' loss of privacy was one of the elements which he considered in estimating the amount of damages resulting to them from the construction of the new highway.
While it is true that under proper circumstances a landowner's loss of privacy may be shown as augmenting the damages resulting to him from the making of a public improvement on his property, we do not think that the court in this instance is to be convicted of error for having refused to permit the witness to be interrogated upon such subject, which exceptors' counsel, quite evidently as an afterthought, first sought to inject into the case on redirect examination of the witness, after the latter had already testified specifically and at length with respect to the matters which he had taken into consideration in fixing his estimate of the damages sustained by exceptors by reason of the construction of the new highway through their farm.
The scope and extent to which the redirect examination of a witness shall be permitted to go is a matter to be left largely to the sound discretion of the trial court, reviewable only for abuse. Stillwell v. Patton, 108 Mo. 352, 363, 18 S.W. 1075; 70 C. J. 698. Obviously no hard and fast rule can be laid down with respect to the limits within which the court's discretion may be exercised, save only to say that ordinarily the proper function of redirect examination is to afford the witness an opportunity to explain or avoid the effect of new matter brought out on cross-examination, or to rebut the discrediting effect of damaging statements or admissions elicited from him on cross-examination. 70 C.J. 698.
In this instance the inquiry regarding exceptors' loss of privacy was patently designed to serve no such purpose, but instead was belatedly directed to a feature of the case which should have been gone into, if at all, on direct examination of the witness. Under such circumstances we cannot say that the court abused its discretion in sustaining the objection to the question, nor, indeed, would it appear that exceptors were in any event harmed by such refusal, since the previous testimony of the witness respecting the net amount of damages sustained by exceptors on account of the making of the improvement remained unaffected by the ruling.
It is next insisted that the court erred in permitting the commission's witness Cross to testify that the plan or plat for the proposed highway provided for the construction of a farm entrance at a certain point on exceptors' land. The objection was that the plans themselves would be the best evidence, and that the testimony of the witness respecting their disclosures would be the expression of a mere conclusion or opinion on his part.
There is only one of the series of objections to be considered, counsel having delayed objecting in the remaining instances until after the witness had completed his answer. Carter v. Zollinger, 231 Mo.App. 1153, 85 S.W.2d 189.
It clearly appears that no error was committed in the overruling of the objection which is here for our review. While the plans were technically the best evidence of what they contained, the record discloses that they had theretofore been identified as an exhibit in the case, so that it could not have been error for the witness, a civil engineer in the employ of the highway department, who was familiar with the plan of construction of the proposed highway and had the plat before him while his testimony was being given, to interpret the same for the benefit of the jury. In fact the plat had been identified while exceptors' first witness, Raebel, was on the stand, and it is of significance that he had been asked by exceptors' counsel to testify from it to a far greater extent than was required of the commission's witness, Cross, in the instance about which exceptors are now complaining.
The same conclusion applies with equal force to the disposition of exceptors' further point that the court erred in permitting Cross to testify that the plan provided for the construction of a bridge across Meramec River at Tesson Road.
Near the beginning of Cross' testimony, after he had testified that he was entirely familiar with the old county road, he was asked to tell the jury what the condition of that road was with...
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