State ex rel. Department of Highways v. Shaddock

• Decision Date: 22 September 1959
• Docket Number: No. 4182,4182
• Citation: 344 P.2d 191,75 Nev. 392
• Parties: STATE of Nevada, on relation of its DEPARTMENT OF HIGHWAYS, Appellant, v. George SHADDOCK and Sarah Shaddock, husband and wife, Respondents.
• Court: Nevada Supreme Court

Page 191

344 P.2d 191

75 Nev. 392

STATE of Nevada, on relation of its DEPARTMENT OF HIGHWAYS, Appellant, v. George SHADDOCK and Sarah Shaddock, husband and wife, Respondents.

No. 4182.

Supreme Court of Nevada.

Sept. 22, 1959.

William E. Freedman, Deputy Atty. Gen., for appellant.

Woodburn, Forman, Wedge, Blakey & Thompson, Reno, for respondents.

McNAMEE, Chief Justice.

This is an action to condemn for highway purposes two parcels of land located at the intersection of Kietzke Lane and East Second Street near the City of Reno. Condemnation was ordered as prayed for and the jury assessed damages to the defendants for the taking of Parcel No. 1 at $68,000, and for the taking of Parcel No. 2 at $468. No damages were allowed to defendnats for the severance of Parcel No. 2. The plaintiff, appellant herein, has taken this appeal from that part of the judgment assessing damages. Seven assignments of error are relied upon for reversal.

1. Appellant contends that the court erred in permitting respondents to inquire of prospective jurors on voir dire whether or not the fact that the federal government would pay 80 to 85 per cent of the cost of acquiring the property condemned would influence them; that such an inquiry bore no relation to their qualifications to serve as jurors; and that the question implies as being true something that possibly might not be true.

Prior to this inquiry, counsel for appellant in his examination of one prospective juror had asked: 'Do you feel because the state is considered wealthy that they should pay more than is reasonable for land that they need for highways?' This question certainly implies that the state would be responsible for the entire payment, and yet counsel for appellant concedes that federal participation in the payment is possible. If respondents' question referred to facts that possibly were not true, likewise did appellant's. On the other hand either question could have referred to a true statement of facts. Whether respondents' question bore any relation to the particular juror's qualifications is immaterial under the circumstances here presented, because in the absence of any showing of a clear and palpable mistake in the verdict resulting from passion or prejudice it was within the court's discretion to permit respondents to refer to those matters alluded to by the appellant theretofore.

Appellant has cited the case of St. Clair Housing Authority v. Quirin, 379 Ill. 52, 39 N.E.2d 363, wherein counsel for respondent in a condemnation proceeding were permitted to question the jurors on their voir dire examination as to whether or not the fact that the United States Government was interested in the project and as to whether or not the fact that it would not cost the taxpayers of East St. Louis anything, would influence them in their verdict. The Illinois Court held this to be prejudicial error requiring reversal. The present action is distinguishable from said St. Clair case, because here there was no deliberate attempt to get immaterial and prejudicial matter before the jury, but rather an attempt to negative assumptions of fact theretofore improperly planted in the jurors' minds by the appellant.

2. Appellant assigns as error the court's failure to strike the testimony of respondents' expert witness White who evaluated the property condemned without considering the effect of an outstanding lease upon Parcel No. 1.

At the time this action was commenced, Parcel No. 1 was subject to a lease which provided for a monthly rental of $300, and for options to renew for two additional terms of ten years each, at the same rental. Notice of exercise of the first ten year option had been given prior to trial.

In arriving at his opinion of the fair market value of Parcel No. 1, White assumed prudent management of the property and took into consideration the highest and best use to which this property could be put. He testified in detail what said use should be, and that the returns from such highest and best use would amount to $500 a month.

On cross-examination, White admitted that he did not take into consideration the 20 year lease limiting rentals to $300 a month, in arriving at his valuation. The jury was therefore fully aware that this was not one of the factors which contributed to the determination of his valuation. That his determination failed to take into consideration a fact material to value would tend to lessen the weight of his testimony, not to render it incompetent. ¹ The motion to strike White's testimony on this ground was properly denied. Accord: Southern Pac. R. Co. v. San Francisco Sav. Union, 146 Cal. 290, 79 P. 961, 70 L.R.A. 221; City of Stockton v. Ellingwood, 96 Cal.App. 708, 275 P. 228; Tyson Creek R. Co. v. Empire Mill Co., 31 Idaho 580, 174 P. 1004; City of Ely v. Conan, 91 Minn. 1271 97 N.W. 737; Cities Service Gas Co. v. Peak, 227 Mo.App. 515, 54 S.W.2d 482.

3. Appellant asserts as another reason why the testimony of White should have been stricken, that White in placing a money valuation upon the condemned property as a service station site based his testimony upon speculation and conjecture and attempted to show value in use.

Witness White had testified that the highest and best use of a portion of Parcel No. 1 was as a service station site. Whether it was error then to permit him to give a valuation of the condemned land based on speculation or conjecture as to what income could be expected from such use is immaterial under the circumstances of this case for the following reason:

In White's opinion the income from such use as a service station site would be $200 a month. On the other hand, appellant's expert witness Olsen, in his testimony placed a money valuation on this specific portion at $300 a month as a service station site. White's testimony in this respect was therefore beneficial to appellant and appellant cannot now claim prejudice therefrom.

4. At the conclusion of White's testimony, the trial court over the objection of appellant received in evidence White's written appraisal report which contained a summary of his methods of computing his valuations of the two parcels of land. Appellant claims this to be error because the report was hearsay and its admission tended to emphasize unduly White's testimony. At the time of trial appellant's two objections to the admission of this report were (1) that the report was hearsay and (2) that it had not taken into consideration the existing lease against the property. This second objection has been considered under the second assignment of error, supra, and will now be disregarded.

There is no merit to appellant's objection that this report was hearsay. Even conceding some statements were based on hearsay, the report contains no evidence in addition to that which White had already given orally, subject to cross-examination; consequently no prejudice could...