State ex rel. Rich v. Sweet

• Decision Date: 31 March 1960
• Docket Number: No. 8821,8821
• Citation: 351 P.2d 230,82 Idaho 191
• Parties: STATE of Idaho on relation of Roscoe C. RICH, Leonard K. Floan and Wallace C. Burns, Idaho Board of Highway Directors, Plaintiff-Appellant, v. Virgil SWEET and Julia Sweet, his wife, and Rodney E. McCullough and Norman Sitz, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 230

351 P.2d 230

82 Idaho 191

STATE of Idaho on relation of Roscoe C. RICH, Leonard K. Floan and Wallace C. Burns, Idaho Board of Highway Directors, Plaintiff-Appellant, v. Virgil SWEET and Julia Sweet, his wife, and Rodney E. McCullough and Norman Sitz, Defendants-Respondents.

No. 8821.

Supreme Court of Idaho.

March 31, 1960.

Rehearing Denied May 6, 1960.

Anton Hohler, Asst. Atty. Gen., Wm. R. Padgett, Chief Legal Counsel, Idaho Dept. of Highways, Boise, for appellant.

Donart & Donart, Weiser, for respondents.

McFADDEN, Justice.

Appellant instituted this action to condemn certain land and improvements of the respondents for highway purposes. The land involved is a portion of the premises being purchased by respondents McCullough and Sitz from respondents Sweet and wife, and used by the purchasers in their operation of a livestock sales yard referred to as Weiser Sales Yard. There is approximately 5 acres in the Sales Yard, of which the land condemned amounts to approximately 0.66 acres, on which were situate improvements consisting of building used as cafe and brand office, a partially destroyed open shelter, and three holding pens. The remaining land held the main sales pavilion, loading and unloading ramps, and various pens and alleyways, parking facilities and other items used in the operation of the sales yard.

At the trial of the case before a jury, various witnesses including the respondents McCullough, Sitz and Sweet testified as to the improvements, method of operation of the yard, effect of the condemnation on the ultimate use of the remaining premises for sales yard purposes, valuation of the property before and after taking, and the methods the various witnesses used in arriving at their valuations. In addition to the testimony of the respondents, both parties introduced witnesses qualified as expert appraisers. During the course of trial the jury viewed the premises. The jury returned an unanimous verdict for $10,000 damages for property actually condemned, and $65,000 for damages to the remainder by reason of the severance of the property actually taken. Judgment with interest was entered accordingly.

Prior to commencement of the trial, appellant moved for change of venue on the ground that an impartial trial could not be had in Washington County, the motion being based on the affidavit of one of appellant's counsel, to which was annexed a copy of an article published in the Weiser American on May 18, 1959, which quoted a certain announcement of respondent Sweet. It was contended this particular article made impossible the empanelling of an impartial jury in Washington County. This motion was denied by the trial court within a week after it was filed and a week prior to commencement of the trial. After entry of judgment, appellant also filed its motion for new trial, which was denied.

Appeal was taken from the judgment and from the order denying appellant's motion for new trial. Error is assigned in the court's refusal to grant the motions for change of venue and new trial, and the court's refusal to strike certain testimony of respondents' witness McEwen, and the court's striking of certain testimony of appellant's witness McDowell.

This court cannot now consider the refusal of the trial court to change the venue. The order of the trial court denying the motion for change of venue was an appealable order; I.C. § 13-201. No appeal was taken from this order within the time required by said section and this court cannot now review that matter. I.C. § 13-219; Ringer v. Wilkin, 32 Idaho 330, 183 P. 986; Boise Ass'n of Credit Men v. United States Fire Ins. Co., 44 Idaho 249, 256 P. 523.

Appellant moved to strike all the testimony of respondents' witness McEwen. The court's denial of this is assigned as error. Mr. McEwen in his testimony covered his qualifications as an appraiser, his familiarity with the operation of a real estate business, his experience in appraising for the Federal Land Bank of Spokane, his other background, his appraisement of the Weiser Sales Yard, his examination of its physical features, his knowledge of the area, the location of the sales yard, and many other matters, and finally gave his opinion as to the reasonable value of this particular yard. All this testimony was admitted without objection. The motion to strike was based on a claimed improper method used by the witness in arriving at fair market value, as testified to on cross-examination. This motion was properly denied, as the motion itself was too general. When only a portion of the testimony of a witness is objectionable, it is not error to refuse to strike his entire testimony. Snook v. Olinger, 36 Idaho 423, 211 P. 559; Wyland v. Twin Falls Canal Co., 48 Idaho 789, 285 P. 676.

Appellant assigned error of the trial court in striking Mr. McDowell's testimony, on redirect examination by respondents' counsel as follows:

'Q. Doesn't the volume of cattle, potential volume of cattle that a yard can handle, have an effect on the number of buyers you can get? A. Yes, I would like to state in this instance that those two gentlemen, Mr. McCullough and Mr. Sitz, are extrmely good operators, and they can get buyers because people have confidence in them, and they will get people to their sale because of their confidence and that does attract them.

'Mr. George Donart: I move to strike that last answer because the ability of these men has been ruled as not an element for consideration in this case, and it is not responsive to any question.

'The Court: It will be stricken.'

Appellant's contention is that the matter of these two gentlemen's ability having been injected into the case, such ruling was improper. However, it must be noted the objection was not only for that reason, but also that the answer was not responsive, which clearly is the case. The question asked was answered by 'yes', and the voluntary additional statement was not responsive, to any question proposed by counsel. 98 C.J.S. Witnesses § 356, p. 79; 58 Am.Jur. Witnesses § 575, p. 322. The striking of testimony by the trial court is not error where it was not proper on either of the grounds stated in the motion. 5 C.J.S. Appeal and Error § 1464(3), p. 673; cf. Valentine v. Rosenhaupt, 19 Idaho 130, 112 P. 685; Servel v. Corbett, 49 Idaho 536, 290 P. 200.

Appellant's specifications urge two grounds of error committed by the trial court in refusing to grant a new trial, (a) insufficiency of the evidence to support the verdict, that the verdict was contrary to law and beyond the scope of the evidence, and (b) excessive damages awarded under the influence of passion or prejudice. Both counsel are in agreement on the proposition that the granting or denying of a motion for new trial is a matter of sound discretion of the trial court whose ruling will not be disturbed unless there has been an abuse of discretion. Sanchotena v. Tower Co., 74 Idaho 541, 264 P.2d 1021. This rule is applicable in condemnation actions. Colusa & H. R. Co. v. Glenn, 1914, 25 Cal.App. 634, 144 P. 993; State v. Anderson, 1932, 92 Mont. 313, 13 P.2d 228.

We shall first dispose of appellant's contention that the trial court abused its discretion in failing to grant a new trial because of insufficiency of the evidence to justify the verdict, that it was contrary to law and beyond the scope of the evidence.

The valuation of the whole property involved was fixed at between $120,000 and $135,000 by the defendants themselves; others of their witnesses fixed the value of the property as follows: Mr. Decker, a sales yard operator at Vale, Oregon, at $125,000 to $130,000; Mr. McEwen, an appraiser, at $125,000; Mr. Doan, a sales yard operator at Caldwell, Idaho, at $125,000 to $140,000; Mr. Parker, a sales yard operator, at Nyssa, Oregon, at $130,000. All of these witnesses further testified that this property would be valueless for use as a sales yard after the condemnation; Mr. McEwen fixed damages to the remainder at $55,000; Mr. Sweet, on cross-examination, stated he estimated the value remaining for other uses would be $25,000. Mr. Guiver, a carpenter and contractor, and foreman on the construction of the yard, estimated the cost of reconstruction of the yard at $86,954. The appellant's witness, Mr. Williams an appraiser, fixed the value before condemnation at $92,836, with severance damages at $14,214, and value of property taken at $9,000; Mr. McDowell, an appraisal witness for appellant, fixed the value at $89,836, with property taken at $10,857, and severance damage at $21,725.

From the foregoing summary of the testimony, it clearly appears that the evidence although conflicting, sufficiently supports the award not only for damages for the taking, but also for the severance damages. I.C. § 13-219. The ruling of the trial court in this regard is entitled to weight and will not be set aside in the absence of abuse of discretion. Koch v. Elkins, 71 Idaho 50, 225 P.2d 457; Hayward v. Yost, 72 Idaho 415, 242 P.2d 971.

'The trial judge sees the witnesses on the witness stand, observes the manner of their testifying, notes their apparent candor or fairness, or the want of it, hears the argument of counsel, and, in short, is in possession of many sources of information valuable in an inquiry as to whether justice has miscarried or not, and which cannot be made to appear in the record of the case which comes to the appellate court; and, appreciating such fact, appellate courts have so frequently held, that it may be announced as settled law, that trial courts possess a discretion to be exercised wisely in the granting or refusal of new trials, and that such discretion will not be by the appellate court disturbed unless it manifestly and clearly appears to have been exercised unwisely and to have been manifestly abused.' Say v. Hodgin, 20 Idaho 64, 68, 116 P. 410, 411.

From the foregoing it cannot be said that the trial court abused its discretion in denying appellant's ...