State v. Rebel

Full title: STATE OF INDIANA v. OTTO REBEL AND ZELMA REBEL

Court: Court of Appeals of Indiana

Date published: Feb 10, 1975

163 Ind. App. 177 (Ind. Ct. App. 1975)

322 N.E.2d 386

Opinion

No. 1-674A92.

Filed February 10, 1975. Rehearing denied March 24, 1975. Transfer denied October 14, 1975.

TRIAL COURT — Condemnation Action — Refusal to Admit Highway Plans in Evidence. — In a condemnation suit the trial court did not err in not allowing State to introduce a set of highway construction plans showing that defendants would have access to the highway and not be landlocked where 1) the State did not make an offer to prove as required by TR. 43; 2) appraisers testified their opinion on damages was based on the assumption that defendants would have access to the highway; and 3) the admission of the evidence was within the discretion of the trial court.

The State appeals from the exclusion of certain highway construction plans at trial in a condemnation action.

From the Warrick Circuit Court, Addison M. Beavers, Judge.

Affirmed by the First District.

Theodore L. Sendak, Attorney General, Henry O. Sitler, Deputy Attorney General, for appellant.

Kenneth W. Weyerbacher, of Boonville, for appellees.

ROBERTSON, C.J.

The sole issue of this appeal is raised by the plaintiff-appellant, State, and concerns the exclusion of highway construction plans as an exhibit in a condemnation suit against the defendants-appellees, the Rebels.

We affirm the trial court.

The facts relevant to the trial court's decision are: During the trial the State repeatedly attempted to introduce a set of highway construction plans for the purpose of showing the jury that the Rebels would have access to the highway and that their property would not be landlocked. The trial court did not allow the plans to be introduced as an exhibit.

We hold that the trial court did not err for three reasons. First, the State did not make an offer to prove as required by Indiana Rules of Trial Procedure, Trial Rule 43(C) and has, therefore, waived the question. State v. Lonergan (1969), 252 Ind. 376, 248 N.E.2d 352. Second, the appraisers testified that their opinions on damages were based on the assumption that the Rebels would have access which had the effect of getting the questioned evidence before the jury. And last, the admission of such an exhibit is within the discretion of the trial court. Dill v. Dill et al. (1950), 120 Ind. App. 61, 88 N.E.2d 396.

Judgment affirmed.

Lowdermilk and Lybrook, JJ., concur.

NOTE. — Reported at 322 N.E.2d 386.