State ex rel. State Highway Commission v. Drisko

537 S.W.2d 645, 1976 Mo. App. LEXIS 2083
CourtMissouri Court of Appeals
DecidedMay 3, 1976
DocketNo. KCD 27087
StatusPublished
Cited by12 cases

This text of 537 S.W.2d 645 (State ex rel. State Highway Commission v. Drisko) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. State Highway Commission v. Drisko, 537 S.W.2d 645, 1976 Mo. App. LEXIS 2083 (Mo. Ct. App. 1976).

Opinion

SHANGLER, Presiding Judge.

The plaintiff State Highway Commission condemned 13.53 acres of a 126.176 acre tract in Platte County owned by the defendants Drisko. The land lies on the west side of 1-29 about one and one-half miles south of the entrance to the Kansas City International Airport. The Tiffany Springs Parkway interchange with 1^29 now occupies that site. Also taken in condemnation were the rights of defendants to direct access between the interstate highway and the interchange, except for access made available to an outer road constructed by the Commission along the Drisko frontage. The land was taken on April 18, 1968, and was zoned for a planned industrial park. The jury returned damages of $67,650 and the defendants have appealed.

The opening statement of counsel for the Commission remarked:

It will be the state’s evidence that after Interstate Highway 29 has been applied, all of the right-of-way was owned and the plans drawn and filed and that being the condition, that after that time the State Highway Department and at the request of the City and at the request of Doctor Drisko came along and put in an interchange at this point, taking as we said thirteen and a half acres to do so.

At the conclusion of this presentation, and after the court was adjourned for mid-day recess, the defendants made objection to these remarks and moved dismissal of the jury on the ground that the interchange was not placed at the request of the Dris-kos, and that the issue was in any event irrelevant to the proceedings. In the colloquy which ensued, counsel made their positions to the court: It was the contention of the Commission that the proposed proof— that the interchange was located as requested by the Driskos and connected with the limited access road to their property— conferred a special benefit upon that land and was proper evidence on damages. The defendants contend there was neither proof of such a request nor would such be evidence of a special benefit.

The trial court refused the motion to discharge the jury, but disallowed further reference to the matter in the absence of proof that the Commission and the Driskos had agreed to the placement of the interchange.

[648]*648The trial commenced, and in the course, the Commission offered to prove by District Engineer Satterlee that to promote the development of Tiffany Springs the City of Kansas City had agreed [in September of 1966] with the Commission to pay the entire cost of a full diamond interchange on 1-29 on condition that the State condemn the land and construct the improvement; that the original plans for 1-29 were changed [in January of 1967] to include the interchange, and that the right of way for the Tiffany Springs Parkway — which passed through the Drisko land and connected with the interchange — was conveyed [in December of 1970] by deed of gift to the City by the defendants. This evidence, the Commission contended to the trial court, allowed the inference that the Driskos sought for the location of the interchange on their property and was for the jury. The defendants argued that the Satterlee evidence was not probative of such a request by them and, if allowed to the jury, would only raise the false inference that the defendants considered the placement a benefit to their remaining property.

The offer of proof was denied by the court.

On this appeal the defendants contend that although the evidence of request was not received, the opening statement which made reference to a proposed proof the court later excluded left the jury with the impression that the defendants expected substantial benefits to their remaining property from the location' of the interchange. It was a false issue, they say, which could only be dispelled by a mistrial, and now by the order of a new trial.

The rule obtains, as the parties agree, that where the active conduct of a landowner secures the location of a public roadway through his property, an inference arises that he expected substantial benefits to accrue to his remaining property. State ex rel. State Highway Commission v. Shain, 340 Mo. 802, 102 S.W.2d 666, 669[3, 4] (1937). We need not determine whether, as a matter of law, the evidence of the contracts between the Commission and City concerning the highway improvements in Tiffany Springs, the construction of the interchange to link with the access road installed by the Commission along the Dris-ko frontage, and the conveyance by gift from the defendants to the City are probative of a request by the Driskos for the placement of the interchange. We have concluded, rather, that the trial court did not commit prejudicial error by the refusal to grant a mistrial.

The power to grant or withhold a mistrial is committed to the sound discretion of the trial court. It is an exercise which will not be disturbed on appeal unless clearly abused. Golian v. Stanley, 334 S.W.2d 88, 91[1-3] (Mo.1960). The improper remarks of counsel on opening statement, without more, may result in such prejudice as to warrant the grant of a new trial, as when reference is made to evidence extraneous to the issue [Underwood v. City of Caruthersville, 184 S.W. 486, 488[1—3] (Mo.App.1916)] or when counsel proposes proof he knows is not available to him. Cade v. Atchison, T. & S. F. Ry. Co., 364 Mo. 620, 265 S.W.2d 366, 370[10, 11] (banc 1954). Neither contingency appears here; the proof predicted in the opening statement was of plausible relevancy on damages. A party who seeks to correct the misconduct of counsel during trial, however, owes the court the opportunity to give relief by a request for instant action and ruling. Minor v. Lillard, 306 S.W.2d 541, 548[12, 13] (Mo.1957). An objection which is deferred until the end of the opening statement comes too late and waives the prejudicial effect of the misconduct. Critcher v. Rudy Fick, Inc., 315 S.W.2d 421, 427[6, 7] (Mo.1958); State v. Robb, 439 S.W.2d 510, 514[6—8] (Mo.1969).

In this case the trial court, with justified vexation, denied the mistrial motion as too tardy an objection. The defendants sought no other remedy although the court expressed inclination to instruct the jury to disregard the remarks. It is reasonable to conclude from the comment of the court and the trial and post-trial rulings on the motion that the prejudicial effect of the [649]*649remarks was not so grievous as to deprive the defendants of a fair trial. The trial conduct of the court was a justifiable exercise of discretion. The claim of error is denied.

The defendants next contend they were prejudiced by certain evidence of comparable sales which, they say, were transacted under market conditions significantly different from those which prevailed when their property was taken in condemnation, and thus not relevant to prove their damage. The Drisko land was taken in April of 1968. In December of 1966, the electorate approved a $150,000,000 bond issue for the development of facilities at the Kansas City International Airport.

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Bluebook (online)
537 S.W.2d 645, 1976 Mo. App. LEXIS 2083, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-state-highway-commission-v-drisko-moctapp-1976.