Brink v. Multnomah County

• Decision Date: 09 November 1960
• Citation: 356 P.2d 536,224 Or. 507
• Parties: David A. BRINK and Rose M. Brink, Appellants, v. MULTNOMAH COUNTY, Oregon, Respondent.
• Court: Oregon Supreme Court

Page 536

356 P.2d 536

224 Or. 507

David A. BRINK and Rose M. Brink, Appellants, v. MULTNOMAH COUNTY, Oregon, Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted Sept. 15, 1960.

Decided Nov. 9, 1960.

Leo Levenson, Portland, argued the cause and submitted briefs, for appellants.

Julian Herndon, Jr., Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was Charles E. Raymond, Dist. Atty., Portland.

Before McALLISTER, C. J., and WARNER, SLOAN, O'CONNELL and HOWELL, JJ.

O'CONNELL, Justice.

The defendant county initiated a condemnation proceeding to acquire a portion of plaintiffs' land for the purpose of relocating and widening a county road. The Board of County Commissioners fixed the damages for the taking at $5,725. Plaintiffs appealed to the Circuit Court for Multnomah County and obtained a verdict and judgment for $8,000, together with interest. Plaintiffs appeal from that judgment, assigning as error the exclusion of certain evidence which they sought to elicit from Elmer Kolberg, a witness called on their behalf.

When Kolberg was called as a witness, defendant's counsel requested to be heard in chambers concerning the character of the testimony which plaintiffs proposed to elicit from the witness. In the colloquy in chambers which followed, defendant's counsel stated that Kolberg had been 'previously employed for compensation by Multnomah county here to observe this property in question and to act as a consultant and adviser to me as Deputy District Attorney representing Multnomah County and in that respect has communicated with me in regard to certain data relative to this problem.'

Counsel's objection to the use of Kolberg as a witness was stated as follows:

'* * * I believe if he is permitted to testify it will show that he is being called for the purpose of having him testify as to valuations on the property in question as an expert witness and I contend that even though he is under subpoena he cannot be required to give his opinion as an expert witness and I advise the Court and plaintiff's counsel that the sole purpose for which he would be permitted to testify in this case beyond the matters pertaining to the question of valuation as an expert would be for the purpose of bringing to the attention of the jury that this--that Mr. Kolberg had been employed by Multnomah County and that in the event he is not called as a witness by the County, counsel for the property owner intends to use the fact that he has not been called by the County as the basis for an inference that if we had called him his testimony as an expert witness would be adverse to the position of the County in this case. I contend that by such a method and after having been previously forewarned by counsel for the County, that to indirectly get before the jury the fact that he is not called or get before the jury even directly that he is not called by the County gives an unfair inference here, over which the County has no control and it is intended and will be to the prejudice of the County and that these matters are brought to the attention of the Court and counsel in chambers preliminary to the development of this matter in open court, in order that the jury would not be apprised of a circumstance which leads to an improper inference.'

It will be noted that, at this point in the trial, the objection to the witness testifying was not based upon the assertion of the attorney-client privilege, but rather on the ground that Kolberg was an expert witness and that as such he could not be required to testify by one who had not employed him in that capacity. The court, in overruling defendant's objection, gave the following reason:

'The Court: It is the understanding of the Court that the Witness Kolberg has been subpoenaed as a witness and the Court therefore will permit the witness to take the stand and as the Court has indicated to counsel, if it develops that this witness has, under arrangement * * * with the County, conducted an appraisal of the property and is in position to give expert testimony, if he declines to give that testimony the Court will sustain the objection and will not force the witness to give his expert opinion.'

It is not clear from the foregoing explanation of his ruling whether the trial judge proposed to exclude the testimony concerning the appraisal on the ground of privilege or on the ground asserted by defendant's counsel.

When Kolberg took the stand he testified that he had made an examination of the subject property at the request of Multnomah County. Objection was then made by defendant's counsel to any testimony by the witness 'unless there is a showing that this witness has ever been employed by the owner in this case.' Here again the objection was not founded upon the assertion of the privilege of confidential communication between lawyer and client, but upon the ground that one who has not employed an expert witness cannot require him to testify as to those matters within his expertise. The objection was overruled. Thereupon Kolberg continued to testify, stating his qualifications as an expert and describing the subject property. The following testimony was then given:

'Q. Now, Mr. Kolberg, at the conclusion of your investigation, did you make a written report to Multnomah County?

'A. Yes.

'Q. Do you have that report with you?

'Mr. West: Objected to, your Honor, on the grounds that there is no showing at this time that this gentleman was ever employed by the property owner in this case, and this is an effort to use him as an expert witness and the Court has ruled on this matter, and I am going to object to any matters pertaining to his use as an expert witness in this case unless they show he was employed by the property owner.

'The Court: The Court will, if the witness declines to divulge any information with respect to his appraisal of this property, will sustain the witness' right to decline to divulge any such information consistent with the Court's prior ruling as to this matter.

'Mr. Kitson: If the Court please, there has been no objection on the part of the witness. The counsel objected on the basis that there has been no showing that the witness was employed by the property owner. The question hasn't been asked * * *

'Mr. West: Well, he asked him to produce some report.

'The Witness: The question--he asked, have I written a report. There has been no question beyond that.

'The Court: He may continue.

'Mr. Curran: Do you have that report with you, Mr. Kolberg, or a copy of it?

'The Witness: I do.

'Mr. Curran: Would you produce it?

'Mr. West: Objected to, your Honor, or the grounds that it's * * *

'The Court: Well, does the witness--do you decline to produce that report?

'The Witness: That is confidential information between me and my client, and unless I am so ordered, I will not produce it.

* * *

* * *

'Q. Well, Mr. Kolberg, did you ever make an appraisal of this property?

'A. Not a complete before and after, I make an estimate of the damages.

'Mr. West: That's all.

'Mr. Curran: What is the amount of that damage?

* * *

* * *

'Mr. West: May I have an objection?

'The Court: Yes.

'Mr. West: On the ground that the witness is claiming privileges.

'Mr. Kitson: Mr. West brought that out, your Honor.

'Mr. West: I did not.

'The Court: The Court will ask the witness again here, do you decline to or are you willing to divulge your opinion with respect to the value of this property.

'The Witness: That, again, is confidential information between I and my client, and unless I am relieved of that confidence or so ordered, I prefer not to.

'Mr. Curran: If the Court please, I would like to register an objection on the record that the damages as testified to by the witness on the stand was brought out by defense counsel, and under cross examination, and that question on re-direct examination on that new material was brought out by the plaintiffs' counsel, and the defense objected and the order was by the Court that the evidence could not be deduced.

Therefore, we would like to take exception to the ruling of the Court.

'The Court: I don't think the Court has ruled yet, counsel, as to this matter. I think I am just questioning the respective procedure.

'Mr. Kitson: It was ruled as to whether or not the appellant brought it in----

'Mr. West: May I make a statement here, your Honor, that the only question I asked was whether or not he had made an appraisal, and the question directed to him which he was permitted to answer, was that he had made a report to Multnomah County, and in order to clarify as to whether that report he is talking about was an appraisal, I asked him one single question, whether he had made an appraisal, and he answered that he had not, so that's the only purpose, and that's all I questioned.

'The Court: Was your answer that you * * *

'The Witness: Had not made an appraisal. Not a before and after appraisal.

'Mr. Kitson: But the rest of the answer now?

'The Witness: That I had expressed an opinion of the damages.

'Mr. Curran: We now, on redirect, your Honor, would like to ask him what the opinion of damages is.

'The Court: Well, the question, of course, counsel is objectionable in form with regard to that particular matter in any event. I don't think that the witness, whether his testimony otherwise is admissible or not, can give an opinion with respect to damages. Does counsel understand the Court's position on that with regard to the proper method of approach toward the adducing of the testimony in this matter? If counsel don't understand the Court's position, I would be glad to adjourn to the chambers and clarify it.

'Mr. Kitson: All we wanted was a statement on the record, your Honor.

'The Court: Any further questions of this witness?

'Mr. West: I have no further questions.

'Mr. Kitson: None here, your Honor.

'The Court: You are excused.'

It is apparent from an examination of the foregoing testimony that there was...