State v. Monninger
Decision Date | 17 May 1962 |
Docket Number | No. 30039,30039 |
Parties | STATE of Indiana, Appellant, v. Gerhardt A. MONNINGER and Cora L. Monninger (H & W), Appellees. |
Court | Indiana Supreme Court |
Edwin K. Steers, Atty. Gen., of Indiana, Frank E. Spencer, Dep. Atty. Gen., Indianapolis, for appellant.
Robert H. Duffy, Terre Haute, for appellees.
The State of Indiana brought an eminent domain proceeding to condemn certain parcels of appellees' land for right of way use by the State Highway Department of Indiana for the construction of a limited access highway. The report of appraisers appointed by the court fixed damages of appellees-defendants at $165,058.00, and on exceptions being filed to the report, a trial was had by jury on the issue of damages resulting in a verdict for appellees-defendants in the amount of $185,000.00. Appeal is taken by the State from judgment rendered on the verdict, the error assigned being the overruling of appellant's motion for new trial.
Appellant first contends the admission into evidence of a carbon copy of appellees' income tax return for 1955 and evidence from witness John Miller as to their income for subsequent years constituted hearsay and violated the best evidence rule, and that the court erred in admitting the same into evidence and in overruling certain objections made by appellant with reference to it.
Appellees in reply thereto argue that any error that may have been committed by the court in admitting this evidence was waived by the State (appellant) when it introduced similar testimony from its witness Carl Miller.
The record shows the State interrogated Carl Miller as to whether he had considered any other approach to the question of damages other than market value on the basis of sales. The following answers were given as appear from the record:
* * *.'
It is our considered opinion that the position of appellee is correct for it is well settled that error in admitting evidence at the trial is not available on appeal where the complaining party submits evidence to substantially the same effect. Guenther v. Jackson (1920), 73 Ind.App. 162, 166, 126 N.E. 873, 875; See: Polk v. Haworth (1911), 48 Ind.App. 32, 36, 95 N.E. 332, 333.
We have no quarrel with the statement by appellant that where a sufficient and specific objection has been made to testimony, it is not necessary to repeat the objection whenever testimony of the same class is offered, citing: Jones on Evidence, 2d ed., § 894, and Eisenshank v. State (1926), 197 Ind. 463, 467, 150 N.E. 365, 366. However, that has no application here where it appears that the State did more than fail to object continuously. The State subsequently through its witness Carl Miller introduced evidence to the same effect as the State had earlier contended was incompetent when it came from the adverse party. The subsequent introduction by the State of substantially the same evidence as it had previously objected to, waived such error as may have been committed.
Appellant's second contention is that the court erred in overruling its objection to a hypothetical question propounded by appellee, the pertinent questions, objections and answers being as follows:
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