Southern Elec. Generating Co. v. Lance

• Decision Date: 12 March 1959
• Docket Number: 7 Div. 396
• Citation: 110 So.2d 627,269 Ala. 25
• Court: Alabama Supreme Court
• Parties: SOUTHERN ELECTRIC GENERATING COMPANY v. Clarence C. LANCE et al.

Page 627

110 So.2d 627

269 Ala. 25

SOUTHERN ELECTRIC GENERATING COMPANY v. Clarence C. LANCE et al.

7 Div. 396.

Supreme Court of Alabama.

March 12, 1959.

Karl C. Harrison, Columbiana, and Martin & Blakey, John Bingham, and Harold A. Bowron, Jr., Birmingham, for appellant.

Handy Ellis, Columbians and Bainbridge & Mims, Birmingham, for appellees.

MERRILL, Justice.

This appeal is from a judgment of condemnation and an award by the jury of $38,000 to appellees. The proceedings in probate court had resulted in an award of $21,095.50. Appellees appealed from that judgment and the cause was tried to a jury in circuit court. A motion for a new trial was overruled.

Appellant states in brief that 'the sole issue for the jury in this case was the valuation issue, viz., determination of the fair market value of appellees' land on June 13, 1957. All errors argued herein deal with the exclusion or admission of valuation evidence or statements of counsel to the jury on matters of valuation.' Assignments of error are listed and numbered as they are argued in brief.

Assignment of error 11 charges that the court erred in overruling appellant's objection to the following question asked appellant's witness McEwen on cross-examination: 'What did you sell it to the Southern Electric Generating Company for?', and in permitting the witness to answer the question. McEwen had bought 122 acres of land in 1954 and sold it to appellant in 1957 to become a part of the plant site for which appellees' land was being condemned.

We have consistently held that in a condemnation proceeding, the price paid by the condemnor for other lands which are to be used for the same purpose as the lands being condemned is inadmissible, and its admission is reversible error. Blount County v. McPherson, Ala., 105 So.2d 117; Housing Authority of Phenix City v. Stillwell, 241 Ala. 420, 3 So.2d 55; Pickens County v. Jordan, 239 Ala. 589, 196 So. 121; Leahy v. State, 214 Ala. 107, 106 So. 599; Alabama Power Co. v. Sides, 212 Ala. 687, 103 So. 859. But McEwen had testified on direct as to his opinion of the value of the property, he had made a trip to Florida to try to get appellee Lance to sell the property to appellant, he was then selling materials to appellant and he had paid $7,500 for the 122 acres in 1954 and had sold it to appellant for $15,000 three years later. When appellant objected to the question, the basis of this assignment of error, the court stated: 'It is limited for shedding light on the question of interest of the witness.' We think the trial court ruled correctly. We have held that it is always permissible to cross-examine a witness to ascertain his interest, bias, prejudice, social and business relations with and friendship for the party who calls him to testify. Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 64 So.2d 594; Mobile City Lines v. Alexander, 249 Ala. 107, 30 So.2d 4; Louisville & Nashville R. Co. v. Martin, 240 Ala. 124, 198 So. 141. In the Alexander case, we said [249 Ala. 107, 30 So.2d 10]:

'* * * It is always permissible to cross-examine a witness to ascertain his interest, bias, prejudice, or partiality concerning the matters about which he is testifying. Alabama Power Co. v. Gladden, 237 Ala. 527, 187 So. 711. The party producing a witness may not shield him from such proper cross-examination for the reason that the facts thus elicited may not be competent upon the merits of the cause. We think this line of questioning was proper as tending to affect the credibility of the witness. * * *'

There is no conflict in this holding and the holding in the Stillwell case, supra. There, the attempt was to show bias of the commissioners by showing amounts of awards they had made for other lands. A person who had sold lands to the condemnor to be used for the same purpose as condemned lands would not be qualified to be a commissioner in condemnation proceedings. McEwen could not have been a commissioner because he was not disinterested and he could not have made the oath required of commissioners by Tit. 19, § 11, Code 1940. The evidence in the instant case was admissible for the limited purpose for which the trial court restricted it.

Assignment of error 12, relating to the specific price per acre requested by McEwen for his land and paid by appellant, is answered by the same authorities as cited in the discussion of Assignment No. 11.

Assignment 15 charges error in the overruling of appellant's objection to the question asked appellant's witness Bolton on cross-examination: 'Did any of them (appraisers for appellant) discuss with you the valuation they placed on the Wolf property right next to it?' (also property making up the site and next to the suit property). Conceding, without deciding, that the question was improper, the ruling was rendered harmless by the answer of the witness, who replied, 'I don't remember, I don't recall talking to me about the valuation of Wolf property.' In Tankersley v. Webb, 263 Ala. 234, 82 So.2d 259, 260, we said:

'* * * The rule that the overruling of an objection to a question is harmless, where the witness answers that he does not know, or does not remember, is applicable here. Brown v. Johnston Bros., 135 Ala. 608, 33 So. 683; Gates v. Morton Hardware Co., 146 Ala. 692, 40 So. 509; Southern Cotton Oil Co. v. Harris, 175 Ala. 323, 57 So. 854; Kellett v. Cochran, 239 Ala. 313, 194 So. 805; 2 Alabama Digest, Appeal and Error, k1048(5).'

Assignments of error 2 and 3 are argued together. Assignment 2 reads: 'That the trial court erred in overruling appellant's objection to a remark by appellees' counsel in his opening statement concerning what would be the valuation testimony by certain witnesses who had not been served.' This is not the proper way to call attention of the lower court to argument of counsel or to assign same as error on appeal. Prior to the court's ruling, there was no record of the objectionable statement of counsel either quoted or in substance or effect. We have said that 'where the argument of one's counsel passes beyond the bounds of legal propriety, it is the duty of opposing counsel to object specifically, and point out substantially the language deemed objectionable; and the record should disclose with reasonable certainty what was said in the court below, in order that the appellate court may review it.' Flowers v. State, Ala., 113 So.2d 344. Neither the assignment of error nor page 24 of the transcript points out substantially the language deemed objectionable, and we find no merit in assignment 2. Assignment 3 is likewise without merit. It is argued that counsel for appellees had 'no reason to 'expect' any $300 per acre appraisal testimony.' But two witnesses did put that exact valuation on the suit property.

Assignment 21 reads: 'That the trial court erred in denying appellant's motion to exclude the testimony of appellees' witness Mark J. Williamson as to the value he put on the river front property of appellees' land.' The witness had just testified that he estimated the river front property as 58 lots, 100 by 200 feet, at $500 each. Appellant moved to exclude this testimony and the motion was granted. The witness then stated his volunation of the river front property was $14,000. Even though there was no reference to the 58 lots, appellant again asked for and was granted an exclusion as to the 58 lots. The motion was then made 'to exclude the value he put on the river property.' The witness had testified that he placed a value of $500 per acre on the 26 acres of river front property and thereby reached a value of $14,000. (A correct multiplication would show $13,000). The witness had qualified as an expert and had been over the property inspecting and appraising it. Laying to one side the indefiniteness of the motion to exclude the 'value' the witness had put on the river front property, we find no error in the ruling of the trial court. A similar situation was considered in Alabama Power Co. v. Berry, 222 Ala. 20, 130 So. 541, 544, where it was said:

'The plaintiff's cross-examination of the witness developed the fact that, in making his estimate as to the depreciation of value, he had assumed that the defendant would have to pay taxes, and that the plaintiff would have the right to fence the right of way and exclude the defendants from its use. Thereupon plaintiff made motion to exclude his evidence as to the value of the land after the construction of the right of way, on the ground that the witness had included in his estimate irrelevant and immaterial matters.

'The witness qualified under section 7656 of the Code 1923 [Code 1940, Tit. 7, § 367], and the fact that, in forming his opinion, he considered some irrelevant matters, goes to the credibility of his testimony, and not to its admissibility. Gossett v. Morrow, 187 Ala. 387, 65 So. 826. The rule is different where the opinion is predicated wholly upon immaterial matters. Winter & Co. v. Burt, 31 Ala. 33.'

The record shows convincingly that the opinion of the witness Williamson was not 'predicated wholly upon immaterial matters.'

Assignment 7 reads: 'That the trial court erred in overruling appellant's objection to the following question asked appellant's witness Grady Weaver on cross-examination: Q. 'But suppose you had a camp site on Coosa River on the Lance property fifty feet by sixty feet deep fronting on Coosa River what would you say that would be worth?' and in permitting such witness to answer such question.' Again conceding, without deciding that the question was improper, the error was rendered harmless by the answer of the witness, 'I couldn't say.' Tankersley v. Webb, 263 Ala. 234, 82 So.2d 259.

Assignments of error 17, 18 and 19 charge error in the sustaining of appellees' objections to the offer in evidence by appellant of the deeds by which appellee Lance took title to the property being condemned. The offer was made, according to appellant's...