Foster v. United States

• Decision Date: 26 December 1944
• Docket Number: No. 12904,12905.,12904
• Parties: FOSTER et al. v. UNITED STATES. BUESCHER v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

145 F.2d 873 (1944)

FOSTER et al. v. UNITED STATES.

BUESCHER v. SAME.

Nos. 12904, 12905.

Circuit Court of Appeals, Eighth Circuit.

December 26, 1944.

Don K. Walter and John Hale, both of Burlington, Iowa, for appellants.

Kelsey Martin Mott, Atty., Department of Justice, of Washington, D. C. (Norman M. Littell, Asst. Atty. Gen., Daniel F. Steck, Sp. Asst. to Atty. Gen., and Vernon L. Wilkinson, Atty., Department of Justice, of Washington, D. C., on the brief), for appellee.

Before GARDNER, WOODROUGH, and JOHNSEN, Circuit Judges.

GARDNER, Circuit Judge.

These two appeals are from judgments determining the just compensation for the taking of properties of the appellants by the government for an ordnance plant in Des Moines County, Iowa. Separate proceedings were brought by the United States, one to condemn 235 acres of land owned by Bertha B. Foster and W. E. Foster, and one to condemn 132.25 acres of land owned by Henry C. Buescher. The suits were consolidated for trial and are consolidated on appeal though a separate judgment was entered in each case. The proceedings have been twice tried and twice appealed. On the first trial damages for the taking of the Foster lands were assessed by the jury at $42,000, while damages for the taking of the Buescher lands were assessed by the jury at $31,250. On appeal by the government we reversed because we were of the view that the trial court should not have permitted proof as to alleged industrial value of the land which might result from the establishment by the government of the ordnance plant for which the lands were being taken and because the court permitted evidence of prices paid by the government for other lands secured for this same project in an attempt to avoid litigation. United States v. Foster, 8 Cir., 131 F.2d 3. On the second trial, resulting in judgments from which the present appeals are prosecuted, damages for the taking of the Foster lands were fixed at $31,365, and for the taking of the Buescher land at $21,250.

Appellants seek reversal on substantially the following grounds: (1) The court erred in refusing to permit the introduction of the testimony of C. F. Bell to rebut testimony of government witness John J. Wagner to the effect that he had not made two appraisals of the lands taken; (2) the court erred in permitting counsel for the government to cross-examine defendant Buescher as to the amount originally contracted to be paid for his farm in 1931 and as to the amount ultimately paid for it in 1934; (3) the court erred in permitting government counsel to cross-examine defendant W. E. Foster as to the value placed on his lands in an offer to exchange them for other property; (4) the court erred in permitting a witness for the government to testify as to the market value of the Foster and Buescher lands; (5) the court erred in striking the answer of Bertha B. Foster to the effect that she and her husband had $48,811 invested in the property taken; (6) the court erred in refusing to grant a new trial on the ground that the verdict in each case was inadequate.

John J. Wagner, called as a witness by the government, testified that he had made an appraisal of the lands involved for the Department of Justice as of the date of taking. He also testified that he had made an inspection of the ordnance plant area for the War Department in the fall of 1940. On cross-examination he stated that the purpose of his inspection was to enable him to give professional advice to the officer in charge of land in the Quartermaster Department to guide him in making purchases and in his negotiations for the acquisition of lands for the ordnance plant. On re-direct examination he testified that his instructions were to make recommendations for settlement with the land owners, which recommendations should include an estimate of the possible loss which the owners might sustain by reason of the necessity of selling their personal property, and that these estimates varied from 15 to 25 per cent above the fair market values of the lands. On recross examination he stated that he had given no accurate quotation of fair cash market value at that time.

In this state of the record defendants offered in rebuttal the witness C. F. Bell, who had accompanied the witness Wagner during the original inspection of all lands in the area. Defendants offered to prove by this witness that Wagner had in fact made an appraisal of the fair market value of these two farms at that time. The witness, having testified that he was employed by Mr. John J. Wagner to make appraisal of the property in the ordnance plant area, was then asked:

"Q. How many properties in the Ordnance Plant area did you appraise pursuant to that employment?

"Objected to as incompetent, irrelevant and immaterial; not rebuttal.

"The Court: I don't see how this could be rebuttal. What are you trying to get at, Mr. Hale?

"Mr. Hale: I wasn't going to ask him anything about values Your Honor. He is being put on to rebut testimony adduced yesterday that there were no appraisals except the Foster and Buescher farms.

"The Court: No appraisements, but that is to other appraisers. You didn't lay the ground for any impeachment. It would seem to me in analyzing it, whether they did make another appraisement which you were asking about, which they denied, it would be only evidence affecting the credibility. It wasn't substantive evidence as to valuation. You can't impeach as to immaterial matters brought out on cross examination."

The effect of the court's ruling was that defendant could not disprove by this witness statements elicited on cross-examination concerning collateral matters in order to discredit the witness Wagner. Wagner categorically denied on cross-examination that an estimate of the fair market value had been made by him during the preliminary negotiations for the War Department. Whether he had or had not was not material to the issue. He was not asked as to any specific statements or declarations that he had made, nor was there any attempt to show that such statements, if any, were false or inaccurate. Where a witness is asked concerning a collateral matter on cross-examination, the party cross-examining is bound by the witness' answer. Northern Pac. Ry. Co. v. Heaton, 8 Cir., 191 F. 24; Quillen v. Lessenger, 190 Iowa 939, 181 N.W. 8. As has been observed, the original estimates made by Wagner were not confined to the fair market value of the property. He included other items intended to cover losses incident to the resulting necessity of selling personal property by the landowners. These are, of course, not elements to be included in fixing fair market value. We are clear that it was not reversible error to reject the proffered testimony.

Defendant Buescher was asked by government counsel on cross-examination as to the price which he had paid for his farm in 1932. This was objected to as incompetent, irrelevant and immaterial and so remote as to have no bearing on the issues involved. In ruling on the matter, the court observed:

"1932. That was at the bottom of the depression, wasn't it? Well, we will take it for what it is worth. The jury will understand the conditions I guess."

The sale was remote but that went to the weight of the evidence rather than to its admissibility. Much must be left to the discretion of the trial court in the matter of admitting evidence going to the question of value. United States v. Becktold Co., 8 Cir., 129 F.2d 473. The witness had testified on direct and on cross-examination that his farm when he acquired it was in a run down condition; that he had spent a great deal of money in improvements, such as a house, windmill, fences, improvements to the barn and other betterments, and that its market value at the time of the taking was $38,000. The testimony showed that conditions had changed in the interval between the sale and the date of taking. This question was asked on cross-examination and the admission of this testimony could not in the circumstances here disclosed have been prejudicial.

Defendant W. E. Foster testified that the fair market value of his farm at the date of taking was $50,000. On cross-examination he was asked whether within the past three or four years he had not listed his farm for sale with a real estate broker. He testified that he had listed...