Union Elec. Co. v. Menkhaus

• Decision Date: 17 September 1963
• Docket Number: No. 31369,31369
• Citation: 370 S.W.2d 619
• Parties: UNION ELECTRIC COMPANY, a Missouri Corporation, (Plaintiff) Affellant, v. Bernard J. MENKHAUS and Catherine S. Menkhaus, His Wife, W. E. Burtelow, Trustee, and Henry E. Nuske, Cestui Que Trust, (Defendants) Respondents.
• Court: Missouri Court of Appeals

Page 619

370 S.W.2d 619

UNION ELECTRIC COMPANY, a Missouri Corporation, (Plaintiff) Affellant, v. Bernard J. MENKHAUS and Catherine S. Menkhaus, His Wife, W E. Burtelow, Trustee, and Henry E. Nuske, Cestui Que Trust, (Defendants) Respondents.

No. 31369.

St. Louis Court of Appeals, Missouri.

Sept. 17, 1963.

Motion for Rehearing or to Transfer to Supreme Court Denied

Oct. 14, 1963.

J. B. Schnapp, Schnapp & Cooper, Fredericktown, J. W. Thurman and Thurman, Nixon & Smith, Hillsboro, for appellant.

Will B. Dearing, and Dearing, Richeson & Weier, Hillsboro, for respondents.

L. F. COTTEY, Special Commissioner.

The determinative question on this appeal, and the only one to which we shall address ourselves, is whether the trial court committed reversible error in admitting certain testimony of respondents' witness Murphy relative to the price received by him for a tract of land he had sold to appellant, which testimony respondents' counsel was thereafter permitted to stress in his argument to the jury. The facts pertinent to the inquiry are these:

Union Electric Company, the appellant, was engaged in constructing an electric transmission line in Jefferson County and, in the course of doing so, found it necessary to condemn a 100-foot strip of right-of-way across respondents' 171-acre farm. The strip comprised 6.17 acres. At the same time, and for the same purpose, the Company purchased outright from witness Murphy a 3-acre tract lying 'across the road' and 'a short half a mile' from respondents' farm. For it the Company paid Murphy $9,000.00. At the trial of respondents' exceptions to the commissioners' report in the court below, respondents produced Murphy who testified, over an ineffective objection, that he had sold his land for '$3,000.00 an acre.' He was not asked on direct examination, nor did he volunteer, the name of the purchaser. That information came to light for the first time in the course of his cross-examination. Because controlling significance is attributed to that circumstance by respondents, we are obliged to quote extensively from the record to show how the problem developed and was disposed of, employing only such excisions and emendations as the interests of clarity and coherence may dictate. In these excerpts Mr. Schnapp speaks for appellant, Mr. Dearing for respondents. The pertinent part of witness Murphy's cross-examination was as follows:

'Mr. Schnapp: Sold for a particular purpose?

'Witness Murphy: Yes.

'Mr. Schnapp: Who bought this property?

'Witness Murphy: Union Electric.

'Mr. Schnapp: For the purpose of this transmission line?

'Witness Murphy: That's right.'

In that way, for the first time, the identity of the condemnor as the purchaser was revealed and the purpose of the purchase was disclosed. Appellant promptly moved to strike Murphy's testimony from the record 'because what Union Electric may have paid for the property for transmission lines is not competent evidence in the trial of this case because of the necessity to acquire the said acreage,' and because 'it was acquired in an effort to avoid condemnation.' Thereupon the following colloquy took place between the court and counsel:

'Mr. Dearing: Well, your Honor, you can't ask questions and then get an answer you don't like and ask the court to strike it out. I didn't ask him who bought the property or anything else, I merely asked him if there'd been a sale.

'Mr. Schnapp: Obviously everyone in the court room except myself knew to whom it was sold.

'Mr. Dearing: He knew.

'The Court: Overruled.

'Mr. Schnapp: I now ask that a mistrial be declared by virtue of this incompetent and highly prejudicial testimony, your Honor.

'The Court: Overruled.'

Murphy was excused. A few minutes later appellant's counsel approached the bench with a request for permission to recall him, out of the presence of the jury, 'for the purpose of showing that at the time Mr. Dearing placed him on the witness stand, Mr. Dearing knew his property was sold to Union Electric.' This exchange ensued:

'Mr. Dearing: You don't have to put him on, I say I know that to be a fact.

'Mr. Schnapp: You knew that at the time?

'Mr. Dearing: I knew it at the time and I instructed the man not to mention the sale to Union Electric. That's what happened. Sure I knew it, I was going to represent the man.

'Mr. Schnapp: You'll admit that in the record?

'Mr. Dearing: Sure I knew it, you can put it in there, the value, and I instructed the man not to say who he made the sale to.

'The Court: All right.'

Thereafter there was this further development:

'Mr. Schnapp: May I approach the bench and make an objection, your Honor? I move the court to advise the jury to disregard the testimony of Frank Murphy in view of Mr. Dearing's previous statement that he knew, prior to putting Mr. Murphy on this witness stand, that Murphy had sold his three acres of land to Union Electric for this transmission line. His testimony is highly improper, incompetent and wholly immaterial, not a voluntary sale. It's sold in fact to avoid litigation; an element of collusion in the purchase of it and the necessity of acquiring it, all enter into it, and for that reason we ask that the court so advise the jury.

'The Court: You got any law on that problem?

'Mr. Schnapp: Yes, sir.

'The Court: I'll look at it a little later.

'Mr. Schnapp: I also move for a mistrial, based upon these same elements.

'The Court: For the present, they'll both be overruled. I'll consider it on the motion for new trial.'

In his argument to the jury counsel for respondents made a number of references to the Murphy property lying 'right across the road' which 'Frank Murphy had sold to the Union Electric' for '$3,000.00 an acre.' He contrasted Murphy's testimony with that of a witness for appellant who had estimated respondents' land to be worth less than $200.00 an acre, saying, 'Why did the Union Electric go across the road and pay $9,000.00, or $3,000.00 an acre, and then come in and want you to believe this man?' He said, further, 'Now, if his (Murphy's) land is worth $3,000.00 an acre, do you think within a quarter of a mile and across the road that my clients' property is worth $25.00 an acre?' Appellant's objections to that line of argument were timely and well-grounded. All were overruled.

The prevailing rule is that evidence as to the price paid by the condemnor in the acquisition of other property essential to the project is not admissible to prove the value of the property condemned. Jahr, Eminent Domain Sec. 144; Annotations, 118 A.L.R. 893 and 174 A.L.R. 395. Such evidence is regarded as 'incompetent and prejudicial.' Yonts et al. v. Public Service Co. of Arkansas, 179 Ark. 695, 17 S.W.2d 886, 888. Missouri follows the prevailing rule. In Metropolitan Street Ry. Co. v. Walsh, 197 Mo. 392, 94 S.W. 860, the judgment in favor of the condemnee was reversed because of the admission of evidence of that character. In that case the Supreme Court, quoting Lewis on Eminent Domain as to the reason for the rule, said, at 1. c., 864: "What the party condemning has paid for other property is incompetent. Such sales are not a fair criterion of value, for the reason that they are in the nature of a compromise. They are affected by an element which does not enter into similar transactions made in the ordinary course of business. The one party may force a sale at such price as may be fixed by the tribunal appointed by law. In most cases the same party must have the particular...