Lustine v. State Roads Commission

• Decision Date: 20 January 1960
• Docket Number: No. 124,124
• Parties: Phillip LUSTINE et al. v. STATE ROADS COMMISSION.
• Court: Maryland Court of Appeals

Page 322

221 Md. 322

157 A.2d 456

Phillip LUSTINE et al. v. STATE ROADS COMMISSION.

No. 124.

Court of Appeals of Maryland.

Jan. 20, 1960.

Samuel J. De Blasis, Suitland (Harry A. Boswell, Mt. Rainier, on the brief), for appellants.

T. Thornton Murray, Special Atty., Baltimore (C. Ferdinand Sybert, Atty. Gen., of Md., Joseph D. Buscher, Special Asst. Atty. Gen., on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

PRESCOTT, Judge.

This is the second appeal by the property owners in a condemnation case wherein the State Roads Commission (Commission) is taking property for a controlled access arterial highway in Prince George's County. The facts are accurately and adequately stated in the first appeal, Lustine v. State Roads Comm., 217 Md. 274, 142 A.2d 566; so, we shall proceed immediately to a determination of the assignments of error presented by the appellants.

I

The appellants first contend that a motion to dismiss the petition for condemnation made by them should have been granted; because the original petition alleged that the purpose of the taking was for an 'Expressway,' when the actual purpose was for a 'controlled access arterial highway.' The contention is without merit. Although it was clearly shown in the first trial of the case that the purpose of the acquisition was to construct a controlled access arterial highway and this fact was specifically noted in our opinion in the prior appeal, no question was raised concerning the same either in the first trial or on the appeal. If the inadvertent use of the term 'Expressway' in the petition created any material problem to the appellants in the trial of the case--a possibility which is indeed quite remote--such problem could easily have been solved by a motion to require the Commission to amend the petition, and then, if the circumstances warranted the same, the trial court could have granted a continuance so that no prejudice would have resulted to the appellants' case; but certainly, it was no ground to dismiss the petition.

II, III and V

The appellants here attempt to raise again an alleged arbitrary and capricious denial to them of access to the new road, the they further claim that the trial court erred in unduly restricting their testimony concerning said alleged arbitrary and capricious action. We have examined the testimony which the appellants claim establishes such action on the part of the Commission, namely, pp. 2, 3 and 6-10 of the record extract, and we fail to discover any arbitrary, capricious or unreasonable conduct on the part of the Commission. Cf. Langley Shopping Center, Inc. v. State Roads Commission, 213 Md. 230, 237, 131 A.2d 690. With reference to the claim that the trial court unduly restricted the appellants' questioning concerning the alleged arbitrary action of the Commission, the appellants do not print a sufficient amount of the transcript in the record extract to pinpoint and show exactly what they were prevented from showing. However, the short answer to all three of the contentions here being considered, II, III and V, is that the alleged arbitrary denial of access was raised, and was decided adversely to the appellants, in the former appeal (217 Md. at page 278, 142 A.2d at page 798); consequently, it is not available in the present appeal. Fidelity-Baltimore National Bank & Trust Co. v. John Hancock Mutual Life Ins. Co., 217 Md. 367, 372, 142 A.2d 796.

IV

The method in which the appellant states his fourth claim of error makes it difficult to discuss. The Commission had called Harry A. Boswell, apparently an officer of one of the corporate appellants, as an adverse party under the provisions of Code (1957), Article 35, Section 9. Counsel for the appellants objected and then withdrew the objection. The witness was questioned for a short while and then counsel for the appellants objected to a question asked upon the ground that opposing counsel was attempting to impeach his own witness. The appellants in their brief then say this testimony 'was therefore extremely prejudicial (E 11-13 * * *).' An examination of pages 11 to 13, both inclusive, of the record extract discloses colloquy between counsel for the respective parties and the court; and the overruling of an objection by counsel for the appellants to the following question: 'For what purposes did you make these appraisals [appraisals near the property being condemned in the instant proceedings] in 1953?' The record extract fails to show any answer to the question, but we shall supply it from the transcript: 'The State Roads Commission assigned to me the appraisal of properties to determine the value of the property.' It is obvious from what we have just said that there is little to show whether the answer to this one question was admissible or inadmissible, but, if we assume that it was inadmissible, there is nothing to show that in this one question and its answer there was prejudicial error. Hance v. State Roads Commission, Md., 156 A.2d 644. The appellants attempt, however, to show such prejudicial error by coupling this question and its answer to what they claim were improper and harmful remarks made by counsel for the Commission during argument, but there was no objection made to the remarks, nor a motion for the court to instruct the jury to disregard them, nor a motion for a mistrial; hence, this question is not properly before us. Rule 885. The appellants also fail to show error here.

VI

During the course of his instructions to the jury, the trial judge informed the jury that the measure of damages to which the appellants were entitled was the difference between the fair market value of the whole tract before the taking and the fair market value after the...