Duke Power Co. v. Winebarger
| Decision Date | 06 May 1980 |
| Docket Number | No. 88,88 |
| Citation | 265 S.E.2d 227,300 N.C. 57 |
| Parties | DUKE POWER COMPANY, v. Worth WINEBARGER and wife, Rebecca Winebarger. |
| Court | North Carolina Supreme Court |
McElwee, Hall, McElwee & Cannon by Wm. H. McElwee III, William C. Warden, Jr., North Wilkesboro, Wm. I. Ward, Jr., Charlotte, Chief Trial Counsel, for plaintiffs-appellees.
Franklin Smith, Elkin, for defendants-appellants.
Respondents Worth and Rebecca Winebarger appeal from a judgment on a verdict assessing damages of $16,000 to compensate them for petitioner's taking of an electric power line easement and right-of-way over their land. Error is assigned to certain evidentiary rulings and instructions thereon by the trial judge during trial. For errors committed in these rulings on questions propounded on cross-examination of respondents' expert witnesses, we reverse the Court of Appeals and grant respondents a new trial.
The gist of this appeal lies in respondents' disagreement with the adequacy of the jury's verdict. Respondents vigorously contend that the jury was prejudiced by improper references made by petitioner's counsel to values and sales prices of properties not comparable to respondents' land. Under the circumstances of this case, we agree.
During cross-examination of respondents' value witnesses, petitioner's counsel continually and persistently alluded to alleged sales prices of parcels of land other than that involved in the case. For instance, respondents' witness Fred Norman was asked on cross-examination:
"Q. Let me ask you this, do you know anything of a 225.4 acre sale made by Johnson J. Hayes, Jr., to John and Joy Payne in November, 1976?
A. No. As I stated I did not base any appraisal on any comparable.
Q. You don't know that property sold for $148.00 an acre, do you?
A. No, sir.
Mr. Smith objects. Overruled.
Q. You don't know that sold for $148.00 an acre?
A. No, I do not.
Q. How about the Douglas Ferguson sale of property from Coyd Kilby?
Mr. Moore objects.
Q. You don't know that it sold for $114.00 an acre?
Mr. Smith objects.
BY MR. McELWEE: It is not presented for purpose of comparable sales, just testing his knowledge.
BY THE COURT: As I understand the rule on cross-examination, he is entitled to test, to question him to test his knowledge and familiarity for the purpose of impeachment."
Similarly, the following questions were propounded on cross-examination to respondents' witness Paul Osborne with respect to property previously owned by Osborne:
"Q. You paid $60.00 an acre for the property, did you not?
Mr. Moore objects.
A. We swapped land.
BY MR. McELWEE: We present this for the purpose of qualification.
A. I didn't buy it directly.
Mr. Moore objects.
A. I didn't buy the land from him, we swapped land.
Q. The price was $60.00 an acre?
Mr. Moore objects.
A. No, I wouldn't say it was $60.00 an acre.
BY MR. MOORE: He said he swapped. Objection.
A. Shortly after I traded the property in Boomer, I sold it. . . .
Q. Can you tell us how much you sold it for?
Mr. Smith objects. Overruled.
A. $150.00 an acre. I testified previously that I keep up with land sales, and I am not familiar with the sale of property by Mary Gwyn Hubbard to Caney Lowe and Sid Mullis, 44.1 acre tract of land for $500.00 per acre in Boomer Township. No, I'm not familiar with it.
Q. I will ask you if you are familiar with the sale of 202.4 acres of property by Johnson J. Hayes, Jr.
BY MR. MOORE: Objection.
Q. To John and Joy Payne for the price of $148.00 per acre in Boomer Township?
Mr. Moore objects. Overruled.
Q. I asked you if you are familiar with the sale from Lloyd Kilby to Douglas L. Ferguson that would for 175 acres of land, twenty-five acres being pasture and 150 woodland at $114.00 per acre in Boomer Township?
Mr. Moore objects. Overruled.
Finally, respondents' witness Cecil Kilby was cross-examined by petitioner's counsel as follows:
"Q. I'll ask you if that 202.4 acres was not purchased by you and Mr. Church for $37,500.00?
Mr. Moore objects.
A. I believe it was purchased by me.
BY THE COURT: Just a minute, let me talk to you up here at the bench.
Whereupon the counsel approaches the bench for conference with the Court.
BY THE COURT: I am going to overrule the objection.
Q. I ask if you are not familiar with the sale of property from J. J. Hayes, Jr., to John and Joy Payne, 202.4 acres in 1976 for $148.00 an acre?
A. No, I don't think that I know where that piece of property is, it's another one that you climb to.
Q. Are you familiar with the sale?
A. No, sir.
Q. Nor are you familiar with the sale of property from Mr. Lloyd Kilby to Douglas Ferguson, 175 acres for $114.00 an acre?
A. No, I don't know that one."
There was no showing that any of the properties referred to in the questions above were in any way comparable to respondents' property. There was thus no foundation for the use of statements of their values or sales prices as competent circumstantial evidence of the value of respondents' land. See generally 1 Stansbury's North Carolina Evidence § 100 (Brandis rev. 1973). Petitioner contends nevertheless that the questions were entirely proper on cross-examination for the purposes of impeaching the witnesses and probing their knowledge of land values in the area. Apparently agreeing with petitioner on this point, the judge overruled or ignored respondents' repeated objections to this line of questioning. Instead he instructed the jury not to consider the testimony as substantive evidence for the purpose of evaluating respondents' property. This resulted in error prejudicial to respondents. A witness who expresses an opinion on property value may be cross-examined with respect to his knowledge of values of nearby properties for the limited purpose of testing the worthiness of his opinion, or challenging his credibility, even if those properties are not similar to that involved in the litigation. Templeton v. Highway Commission, 254 N.C. 337, 118 S.E.2d 918 (1961); Barnes v. Highway Commission, 250 N.C. 378, 109 S.E.2d 219 (1959). It is always the duty of the presiding judge, however, to confine the nature and scope of this line of cross-examination to matters relevant to its limited impeachment purpose. That which is revealed to the jury in either the examiner's questions or the witness' answers should not exceed the bounds of such relevancy. This principle is well illustrated in a number of our cases.
In Highway Commission v. Privett, 246 N.C. 501, 99 S.E.2d 61 (1957), the witness was asked on cross-examination whether he knew of the values and sales prices of other property in the area. The witness answered in the negative, and the cross-examination ended at that point. Speaking for this Court, Justice (later Chief Justice) Bobbitt found no impropriety in the questions propounded:
246 N.C. at 506-507, 99 S.E.2d at 65. (Emphasis original.)
In Barnes v. Highway Commission, supra, the condemnor's appraisal witness was asked by petitioner's counsel on cross-examination: "Now, Mr. Minish, you yourself appraised approximately 13 acres of property directly east of this (subject) property and abutting on this property for $300,000.00, didn't you?" An objection to this question was sustained. This Court found no error, noting that:
250 N.C. at 396, 109 S.E.2d at 233. (Emphasis supplied.)
More recently, in State v. Johnson, 282 N.C. 1, 191 S.E.2d 641 (1972), a condemnation action instituted by the state to acquire an undeveloped portion of Shell Island for historic preservation purposes, this Court said:
282 N.C. at 20, 191 S.E.2d at 654, quoting from Barnes v. Highway Commission, supra. (Emphasis supplied.)
These cases support the principle that, while a witness' knowledge, or lack of it, of the...
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