State v. Monninger

Decision Date17 May 1962
Docket NumberNo. 30039,30039
PartiesSTATE of Indiana, Appellant, v. Gerhardt A. MONNINGER and Cora L. Monninger (H & W), Appellees.
CourtIndiana 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.

LANDIS, Justice.

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:

'A. Well, I've considered somewhat--I might add, you asked me if I was related to John Miller. I'm not, but he's been a friend a long time. I asked him about the income, and he informed me it was from thirty to thirty-one thousand net every year.

'Q. That's what Mr. Miller told you?

'A. Yes. * * *.'

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:

'Q. Now, Mr. Cahill, assuming that we have a business which has existed in the same city, in the same location for some twenty-five or thirty-five years, that has maintained a business bank account of around fifty thousand dollars for a period of at least five years; that has earned net profits in the past five years as follows: 1955--thirty-eight thousand, three hundred ten dollars and fifty-eight cents; 1956--forty thousand, eight hundred two dollars and thirty-one cents; 1957--twenty-five thousand, three hundred eighty-three dollars and thirty-one cents; 1958--twenty-eight thousand, two hundred forty-eight dollars and thirty-one cents; 1959--twenty-six thousand, four hundred ninety-six dollars and seventy-eight cents; or a total net earnings for those five years amounting to one hundred fifty-nine thousand, two hundred forty-one dollars and twenty-nine cents; and averaging for each of those years thirty-one thousand, eight hundred forty-eight dollars and twenty-six cents; and assuming further that there has been no substantial owner-participation in said business during the five years mentioned, do you have an opinion as to the value of that business, based upon earnings?

'A. Yes, sir, I do.

'Q. What is that opinion?

'Mr. Spencer: If the Court please, I object to the question asked for the reason that it is directed to an opinion of the witness based upon facts not shown in this cause. A number of the facts enumerated in the hypothetical have not been shown here. First, there has been no competent evidence or anything concerning net income other than self-serving statements, unsigned by the Defendants, containing such a statement, with no background on the part of the witness who presented it. Secondly, the evidence has been exactly to the contrary in regard to the matter of owner-participation, that being that the owner has, in fact, participated, but it was merely that he was not regularly physically present at the office during...

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19 cases
  • Northern Indiana Public Service Co. v. Otis
    • United States
    • Court of Appeals of Indiana
    • August 27, 1969
    ...In regard to the contentions of Dehner under both Propositions VII and VIII the statement of our Supreme Court in State v. Monninger, 243 Ind. 174, 182 N.E.2d 426 (1962) is highly 'It is our considered opinion that the position of appellee is correct for it is well settled that error in adm......
  • Kindred v. State
    • United States
    • Supreme Court of Indiana
    • June 8, 1988
    ...made to testimony, it is not necessary to repeat the objection whenever testimony of the same class is offered. State v. Monninger (1962), 243 Ind. 174, 177, 182 N.E.2d 426, 427; Eisenshank v. State (1926), 197 Ind. 463, 467, 150 N.E. 365, 366.4 See State v. Drury (1974), 110 Ariz. 447, 520......
  • Gwaltney Drilling, Inc. v. McKee
    • United States
    • Court of Appeals of Indiana
    • June 30, 1970
    ...These principles were recently reaffirmed in NIPSCO v. Otis, Ind.App., 250 N.E.2d 378 (1969) (trans. den.) In State v. Monninger, 243 Ind. 174, 176, 182 N.E.2d 426, 427 (1962), our Supreme Court 'It is our considered opinion that the position of appellee is correct for it is well settled th......
  • Beyer v. State
    • United States
    • Supreme Court of Indiana
    • March 30, 1972
    ...147, 240 N.E.2d 66; Public Service Co. of Ind. v. Levenstein Bros. Realty Co. (1965), 246 Ind. 520, 207 N.E.2d 202; State v. Monninger (1962), 243 Ind. 174, 182 N.E.2d 426. The expert opinions as to the total damages in the case at bar ranged from twenty-seven thousand three hundred and fif......
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