Chapman v. United States, 3608.

• Decision Date: 08 November 1948
• Docket Number: No. 3608.,3608.
• Citation: 169 F.2d 641
• Parties: CHAPMAN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

169 F.2d 641 (1948)

CHAPMAN et al. v. UNITED STATES.

No. 3608.

Circuit Court of Appeals Tenth Circuit.

August 9, 1948.

Rehearing Denied August 30, 1948.

Writ of Certiorari Denied November 8, 1948.

Earl A. Brown, of Ardmore, Okl. (John M. Poindexter, of Ardmore, Okl., on the brief), for appellants.

Curtis P. Harris, Sp. Atty., Department of Justice, of Oklahoma City, Okl. (A. Devitt Vanech, Asst. Atty. Gen., and John F. Cotter and George S. Swarth, Attys'. Department of Justice, both of Washington, D. C., on the brief), for appellee.

Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.

Writ of Certiorari Denied November 8, 1948. See 69 S.Ct. 134.

MURRAH, Circuit Judge.

The only triable issue in this case is "just compensation" for agricultural lands taken by the Government for public purposes. We reversed for a new trial, United States v. Chapman, 10 Cir., 158 F.2d 417, and the landowner has appealed from a judgment on a jury verdict for $160,000, contending first that the trial court erred in limiting the number of expert witnesses on the issue of value of the land involved.

In pursuance of a pre-trial the court notified the parties by letter that in its judgment four expert witnesses on the ultimate issue of value would be sufficient. On the trial of the case four witnesses on each side testified to ultimate value, but fifteen witnesses, including the landowner, were permitted to testify for the landowner to constituent elements of value.

There can be no doubt of the power of the trial court, in the exercise of a sound and reasonable judicial discretion, to limit the number of expert witnesses to the issue of value. Lewis Eminent Domain, 3rd Ed. Vol. 2, Section 653, p. 1118; Wigmore on Evidence, 3rd Ed. Vol. 6, Section 1908, p. 578. It is but a rightful concession to the power of the trial court to direct the course of the trial in the interest of the proper administration of justice. Vol. 53 Amer.Jur.Trial, Section 107, p. 95. The contrariety comes with the application of the rule of judicial discretion. Thus, it has been held in a condemnation proceedings that a limitation of four witnesses on the side was in the attendant circumstances an abuse of discretion. See, St. Louis, M. & S. E. R. Co. v. Aubuchon, 199 Mo. 352, 97 S.W. 867, 9 L.R.A.,N.S., 426, 116 Am.St.Rep. 499, 8 Ann.Cas. 822. It has also been held that the trial court should not undertake to limit the number of witnesses introduced by either party until it becomes obvious that further testimony would be merely cumulative, hence of no probative value. Henson & Sons Coal Co. v. Strickland, 152 Ark. 203, 238 S.W. 5, 21 A.L.R. 328. See also Conlee v. Taylor, 153 Tenn. 507, 285 S.W. 35, 48 A.L. R. 940 and cases collected in annotation 21 A.L.R. 335; 48 A.L.R. 947.

Here the landowner contends that since the limitation was imposed in advance of the trial, the court had no opportunity to exercise sound judicial discretion and it was therefore, arbitrary. Some courts think it better practice to impose the limitation either in advance or at the commencement of the trial, or as soon as the necessity for it is reasonably apparent. See cases collected in annotation, 21 A.L. R. 348, sub-division 5. Mr. Wigmore expresses the view that the requirement is plausibly fair and "is usually proper when feasible". We agree with Wigmore that "the trial court's discretion should be left to determine whether such a prior notice was feasible and desirable under the circumstances". See Wigmore on Evidence, 3rd Ed., Vol. 6, Sec. 1908, p. 586.

The limitation was imposed only after a pre-trial conference had developed the issues and the landowner's counsel had outlined the nature of his proof on all the constituent elements of value. In his letter to counsel limiting the number of witnesses on the issue of value to four, the trial judge stated that "after hearing the evidence" he might change his views; that it would be his purpose to see that the case was "fairly submitted by as many witnesses as may reasonably be required".

On the trial of the case the landowner did not offer additional witnesses on the ultimate issue of value nor did he raise the question for the further consideration of the court. The record shows that every element of value was fully and completely treated. The opinions of the experts were irreconcilable. The trial court so instructed the jury and permitted them to view the land involved in order that they might be able to use their own judgment. No prejudice whatever is shown by the action of the court in limiting the number of witnesses, and we hold that it did not commit error in doing so.

During the direct examination of Government witness Kelchner, he was asked if anyone went with him to view the land. When he stated "yes", he was asked "who", and he answered "Roy Oakley"; and then counsel said, "you and he fixed the valuation", and the answer was "yes". The landowner complains that this testimony had the effect of giving the Government five expert witnesses instead of the four allowed, because it reinforced Kelchner's testimony by giving the jury the impression that someone else agreed with him. No objection was taken to the testimony at that time. The landowner says that he did not object because he assumed that Oakley would later be called as a witness. But, the landowner never did call the matter to the attention of the court, and it therefore had no opportunity to correct any impression the jury might have gained. In any event, the court should certainly not be held to have committed reversible error because of any untoward statement which could have little, if any bearing upon the case.

The landowner also complains of the court's reference to his withdrawal of the estimated just compensation, deposited with the court. On direct examination, the landowner stressed the productivity of the land and the profits he had realized from the operation of the farming and cattle business. On cross-examination, on the question of profits, he related how he had paid several hundred thousand dollars on debts, had an equity in the land and 1,800 head of cattle, and other land not involved. Counsel for the Government retorted that a big part of that which he had paid on the debts was paid to him in 1944. The landowner...