City of Wichita v. Jennings, 44732

• Decision Date: 13 November 1967
• Docket Number: No. 44732,44732
• Parties: CITY OF WICHITA, Kansas, Appellee, v. Wilma D. JENNINGS, Individually, and as Executrix of the Will of Earl D. Jennings, Deceased, Appellants.
• Court: Kansas Supreme Court

Page 351

433 P.2d 351

199 Kan. 621

CITY OF WICHITA, Kansas, Appellee, v. Wilma D. JENNINGS, Individually, and as Executrix of the

Will of Earl D. Jennings, Deceased, Appellants.

No. 44732.

Supreme Court of Kansas.

Nov. 13, 1967.

Syllabus by the Court

1. The purchase price in an option to purchase land is not competent evidence of the value of comparable land in a condemnation proceeding.

2. An appraisal made for a mortgage loan company is not a trade-secret within the provisions of K.S.A. 60-432, nor is the one making the appraisal otherwise privileged to refuse to testify in connection therewith when his credibility is being tested on cross-examination in a condemnation proceeding.

3. The trial court may in its discretion limit the number of expert witnesses in a condemnation proceeding but if it desires to exercise such discretion it should warn the litigants before the presentation of evidence is commenced.

4. Under the rules of evidence, K.S.A. 60-401, et seq., an expert witness, on direct examination, may testify as to the purchase price of specific tracts of neighboring land in a condemnation proceeding.

5. Plats and photographs showing possible schemes of development of land for its most advantageous use are admissible as evidence in a condemnation proceeding.

6. The general doctrine of burden of proof is not applicable to a condemnation proceeding and it is better that such instruction not be given.

Charles W. Harris, Wichita, argued the cause, and Lawrence Weigand, Lawrence E. Curfman, Byron Brainerd, Orval J. Kaufman, Donald A. Bell, J. L. Weigand, Jr., Spencer L. Depew and Paul M. Buchanan, Wichita, were with him on the briefs for appellant.

William C. Farmer, Wichita, argued the cause, and John Dekker, Paul V. Smith, Douglas E. Shay, Leo R. Wetta, James R. Schaefer, Thomas A. Wood and Larry L. Witherspoon, Wichita, were with him on the briefs for appellee.

HATCHER, Commissioner.

This appeal stems from landowners' dissatisfaction with an award in a condemnation proceeding. The landowners appealed from the appraisers' award and have now appealed to this court from the verdict of the jury in the district court.

The foundation facts may be briefly stated.

On April 1, 1964, the City of Wichita condemned certain land owned by appellants for the construction of Interstate Highway 35. The original land consisted of approximately 2.8 acres located on the east side of K-15, a four lane highway, and south of Wassal Street. The landowners had developed a substantial residential area and retained the tract in question for commercial development. The taking involved 2.46 acres, leaving a .34 acre triangular tract.

On appeal to the district court the jury returned a verdict for the landowners in the amount of $34,500. This was $6,000 less than the award of the court appointed appraisers. The landowners on appeal to this court allege numerous trial errors which they contend require the granting of a new trial.

We will first review the alleged errors which we consider to be the most prejudicial.

Appellants complain that the trial court erred in allowing an expert witness to use the sale price in an option contract as evidence of the value of comparable land. We are forced to conclude that the complaint is well founded. This court has not heretofore passed on the question and the courts of other states are divided on the propriety of such testimony.

We are inclined toward the rule that an option to purchase can be of no help to a jury in determining market value because of the opportunity for collusion and bad faith where the optionee has no obligation to buy and other possible contingencies exist.

Appellants further suggest that a witness for the appellee was permitted to refuse to testify on the basis of claimed privilege when in fact no privilege existed.

The witness testified as to his opinion of the present market value of the property which was based on the sale price of comparable properties in the community. The appellants attempted to test the witness' credibility by questioning him as to his appraisal of property in the community for mortgage loan purposes. The record discloses the following:

'Q. Would you tell the Jury the total value you put on the land under the South City Center there?

'Mr. Farmer: Now if the Court please, I want to object to this as getting away off into things that have no consideration--

'The Court: Overruled. I am going to permit him to answer.

'The Witness: May I ask you a question, Your Honor, about this, in answering this? This appraisal was made recently for, as Mr. Harris said, for mortgage purposes. The mortgage transaction is not complete.

'The Court: All right. I will not require you to answer under those conditions.

'The Witness: I don't think in fairness to my client that I should.'

The trial court later stated that he would not require the witness to testify without permission of his client. The court also stated on motion for a new trial:

'There are certain things in the business would that you can not divulge without sacrificing your reputation and also the betrayal of confidences; and at the time I ruled I thought that existed with reference to this witness on the questions you were asking on cross-examination.'

Again the court stated:

'* * * True, in the business world today they are not exempt by statute, but this Court is not going to order the disclosure of negotiations, just the same as this Court will not order trade secrets or other matters with reference to businesses disclosed. And that was the basis upon which Court ruled at the time.'

K.S.A. 60-407 abolishes generally privileges of witnesses and exclusionary rules. It provides in part:

'Except as otherwise provided by statute * * * (b) no person has a privilege to refuse to be a witness, * * * and (d) no person has a privilege to refuse to disclose any matter or to produce any object or writing, and (e) no person has a privilege that another shall not be a witness or shall not disclose any matter or shall not produce any object or writing, * * *'

It would appear that there are no privileges or immunities from testifying unless they are specifically set out in the Rules of Evidence as found in Article 4 of the new Code of Civil Procedure. We find no privilege not to testify in connection with an ordinary business transaction. The appellee relies on K.S.A. 60-432 which provides:

'The owner of a trade secret has a privilege, which may be claimed by him or his agent or employee, to refuse to disclose the secret and to prevent other persons from disclosing it if the judge finds that the allowance of the privilege will not tend to conceal fraud or otherwise work injustice.'

An appraisal of property for a loan company, which anticipates loaning money on the property, is not encompassed within the term trade-secret. Black's Law Dictionary, Fourth Edition, defines trade-secret as follows:

'A plan or process, tool, mechanism, or compound known only to its owner and those of his employees to whom it is necessary to confide it. (Citations omitted.) A secret formula or process not patented, but known only to certain individuals using it in compounding some article of trade having a commercial value. (Citations omitted.)'

An appraisal of real estate by one hired to perform such task is not a tradesecret within the meaning of K.S.A. 60-432, and the witness was not privileged to refuse to testify. Whether the evidence was relevant was not considered by the trial court and is not considered here.

Appellants contend that the trial court improperly limited the landowners as to the number of witnesses. Under the circumstances in this case we are inclined to agree.

At the pretrial conference the opponents in the litigation were directed to exchange with each other the names and addresses of the witnesses they planned to call at the trial of the case. The appellants advised the appellee that they intended to call five experts and so advised the jury in the opening statement. No suggestion was made as to limiting the number. At the trial, after three of appellants' expert witnesses had testified, the trial court announced that the litigants would be limited to three expert witnesses on a side.

Generally speaking the court has wide discretion in limiting the number...