Dade County v. Brigham

• Decision Date: 14 March 1950
• Citation: 18 A.L.R.2d 1221,47 So.2d 602
• Parties: DADE COUNTY v. BRIGHAM et al.
• Court: Florida Supreme Court

Page 602

47 So.2d 602

18 A.L.R.2d 1221

DADE COUNTY v. BRIGHAM et al.

Supreme Court of Florida, en Banc.

March 14, 1950.

On Rehearing July 25, 1950.

Hudson & Cason, Miami, John W. McWhirter, Calvin Johnson, Tampa, and A. M. Black, Dania, David V. Kerns, Tampa and Risdon Boykin, Chattahoochee, for appellant.

E. F. P. Brigham, and T. C. Britton, Miami, for appellees.

HOBSON, Justice.

This case is before us on petition for writ of certiorari. The primary and controlling question presented for our determination is whether the Circuit Judge erred in taxing the fees of expert witnesses who testified for the appellees, defendants below, as costs against the appellant, petitioner below, in a condemnation proceeding. The appellant insists that expert witnesses' fees are not legal costs as contemplated by the statutes of the State of Florida and are wholly unauthorized by law. In support of its position the appellant relies heavily upon our opinion and judgment in the case of Inland Waterways Development Co. v. City of Jacksonville, Fla., 38 So.2d 676, 678, and entertains the view that the opinion and judgment in that case concluded the question raised in this case favorable to appellant's position. We do not believe that the holding in the case of Inland Waterway Development Co. v. City of Jacksonville, supra, is necessarily or inevitably controlling.

In that case this Court, speaking through Mr. Justice Terrell simply stated the general rule as follows:

'As to the cost of expert witnesses, the rule generally approved is that the condemnor is not required to pay such costs beyond the amount allowed by law as per diem for ordinary witnesses, the reason for the rule being, that expert witnesses sell their services much as law services and other professional services are sold, he is not required by law to testify, hence he must be paid by the one who produces him.'

To recite and approve a general rule in one case is not the equivalent of establishing it as an unyielding, inflexible guide in every case. We clearly indicated we were not deciding that the general rule with reference to expert witnesses' fees would obtain without exception. The question as stated by Mr. Justice Terrell was 'Whether or not the petitioner is required to pay the charges of expert witnesses, including the cost of photographs and certified copies of public records * * *.' (Italics supplied). We have held that an opinion emanating from this Court must be construed in the light of the facts and circumstances of the case which was then before us for decision. Pearson et al. v. Taylor, 159 Fla. 775, 32 So.2d 826; Kahn v. American Surety Co. of New York, 120 Fla. 50, 162 So. 335; Shelfer v. American Agr. Chemical Co., 113 Fla. 108, 152 So. 613. After stating the question above quoted the writer of that opinion then said:

'We can think of no reason why photographs and certified copies of public records would have any place in the proof of 'full compensation' or 'just value' for lands condemned for public use, but if in the discretion of the trial court such instruments were of use value in a condemnation proceeding, we would not be inclined to hold him in error except upon a very strong showing of abuse of discretion.' (Italics supplied.)

The effect of our ruling was an affirmance of the Circuit Judge who disallowed expert witnesses' fees. In the present case the Circuit Judge allowed expert witnesses' fees and included them in the judgment. He gave sound, logical and cogent reasons therefor and determined that in this case expert witnesses definitely were of 'use value' for they were essential in order for the defendants below to meet the plaintiff, Dade County, upon equal footing. We quote from this order:

'Freedom to own and hold property is a valued and guarded right under our government. Full compensation is guaranteed by the Constitution to those whose property is divested from them by eminent domain. The theory and purpose of that guaranty is that the owner shall be made whole so far as possible and practicable.

'The courts should not be blind to the realities of the condemnation process. Any excuse which the Court might have for disclaiming knowledge of just what goes on, is entirely removed by the fact that the Court itself views the trial and proceedings and has personal knowledge of all such matters. The Court sees that the County is armed with engineering testimony, engineering data, charts and drawings prepared by expert draftsmen.

'The court sees that the County produces appraisers, expert witnesses relating to value, usually more than one in number, whose elaborate statement of their qualifications, training, experience and clientele indicate a painstaking and elaborate appraisal by them calling for an expenditure by the County of fees to such experts and appraisers which are commensurate therewith, and customary for like services of such persons. A lay defendant whose property is to be taken is called upon to defend against such preparation and expert testimony of the County. It is unreasonable to say that such a defendant must suffer a disadvantage of being unable to meet this array of able, expert evidence, unless he shall pay for the same out of his own pocket.

'Can the County contend that such high priced evidentiary items are not a part of the 'costs of the proceedings' when they themselves by presentation of the same in their case, make them a part of the proceedings in their behalf?'

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'It does not follow that all expenses to which the defendant elects to put himself in connection with the defense of such a case may be collected on a costs judgment It is the duty of the Court to inquire into the items of cost, to be satisfied, for...