Housing Authority of City of Decatur v. Decatur Land Co.

Decision Date02 April 1953
Docket Number8 Div. 649
Citation258 Ala. 607,64 So.2d 594
CourtAlabama Supreme Court

Britnell & McEntire, Decatur, for appellant.

Norman W. Harris and Julian Harris, Decatur, for appellees.

SIMPSON, Justice.

This is a condemnation proceeding instituted by petitioner. Housing Authority of the City of Decatur, Alabama (appellant here), against Decatur Land Company, Ltd., a limited partnership composed of certain named individuals, seeking to condemn ninety-six lots in Decatur owned by the partnership and described in the petition for condemnation. Code 1940, Title 25, Chapter 2.

Upon the trial of the cause in the circuit court, the jury fixed the valuation at $34,560 and judgment was rendered accordingly. Petitioner, insisting that the sum was excessive and that certain errors were committed with reference to the introduction of evidence bearing on the question of valuation, has prosecuted this appeal.

The witnesses entertained greatly disparate views as to the value of the property, with estimates ranging from $25,500 to $38,000. It seems that the divergence of opinion, to a considerable extent, arose by reason of an open drainage ditch which traversed the property. The property owner had previously granted a drainage easement to the City of Decatur with a proviso that the property owner might eliminate the easement by constructing a proper drainage system according to a sewer drainage plan which might be approved by the city engineer. The city engineer, a witness for the petitioner, testified on cross-examination that, prior to the condemnation, he had made such a plan, that that plan would effectively drain the property, and that the proposed plan had been approved and adopted by the Board of Commissioners of the city. The witness further testified that at the time of the condemnation the cost of that drainage system would be $13,811.73, using city labor, which would be 'a little cheaper than a contractor.' This testimony went in without objection.

Petitioner (condemnor) was allowed to prove by another of its witnesses, the engineer who was employed by the Authority to undertake the drainage project on the property, that the cost was $32,000 and that the price was fair and reasonable. The defendant property owner duly objected and excepted to this testimony for the reason that whatever the Housing Authority and the federal government might have done with the property to drain it would shed no light on the question of valuation, since that drainage project was adapted to the particular improvement which the Authority desired to place upon the property. The objection was perhaps well taken as res inter alios acta, Andrews v. Tucker, 127 Ala. 602, 29 So. 34; 20 Am.Jur. 280, § 302, but we need not enter into a discussion of that legal principle. The question here to be considered is the countervailing testimony which was introduced by defendant to discredit the accuracy of such a high drainage cost as compared with the estimate previously approved by the city engineer as an adequate drainage system. To discredit the propriety of such a high drainage cost and thereby impeach petitioner's said engineer witness, the defendant was allowed to show by cross-examination of this witness that the total price for the construction of the housing project was $1,242,000, with money being furnished by a loan from the United States government to the City of Decatur until a bond issue could be floated by the Housing Authority to repay it. It seems, from argument of appellee's counsel, that this testimony was admitted on the theory that the high-cost drainage project was not reasonably necessary to render the property usable and marketable considering its location and terrain, but was due to the peculiar use to which it was to be put by the Authority, viz., such a high-cost development with 'easy money' from the federal government. One of the principal arguments for error is the ruling of the court admitting this testimony. For several reasons we have concluded that the record before us does not invite a reversal on the stated ground.

At the outset it is well to take notice of the recognized rule that timely objection to a question is necessary and the point is not preserved if the objector speculates on the answer and waits until after the answer to reserve an exception to the ruling. One Paige Automobile v. State, 203 Ala. 682, 85 So. 17; Adams Hardware Co. v. Wimbish, 201 Ala. 547, 78 So. 901.

The evidence of the total contract price for the project comes within the influence of the aforestated rule. Without considering the generality of the objection, viz., 'we object,' no exception was reserved until after the testimony had been given by the witness and, therefore, error cannot be predicated on the admission of such evidence.

Counsel representing the property owner evidently made some argument before the jury about the government furnishing the money, which the court did not exclude on motion of petitioner, but if the argument was beyond the bounds of legal propriety the record does not sufficiently disclose what was said in its context for us to say the argument was improper. Ferguson v. State, 36 Ala.App. 358, 56 So.2d 118.

The point was preserved with respect to proving where the money came from, but that assignment of error, together with the other two assignments of error, are argued together, resulting that the court could well decline to review the last-mentioned assignment, since the first two are unavailable and without merit. Aircraft Sales & Service, Inc., v. Gantt, 255 Ala. 508, 52 So.2d 388.

But in deference to counsel and speaking to the merits of the assignment, we will observe that we are not so convinced that the considered evidence was inadmissible on cross-examination of said witness as bearing on the accuracy of his testimony. The evidence of the cost of the project, the extensive nature of the building program, the remaking of the whole landscape, with money for the undertaking coming from the federal government, would in our view have had some bearing on the value of the opinion of this witness when he testified to such a high drainage cost ($32,000) in contradistinction to the testimony of petitioner's other witness, the city engineer, who had previously stated that the cost of draining the project would reasonably have been about $13,000. To say such evidence had no probative value as bearing on the accuracy of the opinion of the Authority's witness under the peculiar circumstances of the case would be to close one's eyes to actual reality.

It is always competent on cross-examination to make such interrogation of a witness as would tend to test his interest, bias or prejudice or to illustrate or impeach the accuracy of his testimony. Both our appellate courts have approved the principle stated in 2 Wigmore on Evidence, 2d Ed., § 949, p. 232: 'The range of external circumstances from which probable bias may be inferred is infinite. Too much refinement in analyzing their probable effect is out of place.' Louisville & N. R. v. Martin, 240 Ala. 124, 198 So. 141, 144; Sowell v. State, 30 Ala.App. 18, 199 So. 900. And for emphasis we repeat the oftstated rule that the latitude and extent of such cross-examination is a matter which of necessity rests largely within the sound judicial discretion, which will not be revised on appeal except in extreme cases of abuse. Such cross-examination may even pertain to irrelevant and immaterial matters as bearing on the memory, accuracy, credibility, interest or sincerity of the witness. Ex parte State, 199 Ala. 255, 74 So. 366; Cox v. State, 162 Ala. 66, 50 So. 398; Marler v. State, 68 Ala. 580. To be sure, this may be a borderline case, but in view of the circumstances under which the evidence was allowed and the seemingly high estimate of the drainage cost given by the Authority's said witness, we are not prepared to say that the trial court so grossly abused his discretion in allowing the stated cross-examination as to authorize this court to pronounce error in the ruling.

The next assignment of error argued is numbered 4. That assignment contains six subheads and in essence comprehends six points, some unrelated to others. In legal effect, then, the rule, supra, in Aircraft Sales & Service, Inc., v. Gantt, has been transgressed. Also, however, in deference to argument of learned counsel, we will show that the assignments are not well taken.

4(a) and 4(b). It is largely addressed to the sound judicial discretion as to whether a witness has qualified as an expert on a matter inquired about, here with respect to the value of the condemned land, so as to permit his testimony. Cannon, witness for property owner, testified he was a mortgage loan appraiser for the Prudential Insurance Company, having charge of all north Alabama; that he made frequent trips to Decatur, was familiar with the maps of the town and with this property and that surrounding it and that he knew the market value of the property at the time of the taking. The court did not abuse...

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