State ex rel. State Highway Commission v. Steinkraus

• Decision Date: 05 July 1966
• Docket Number: No. 7825,7825
• Citation: 76 N.M. 617,1966 NMSC 134,417 P.2d 431
• Parties: STATE of New Mexico ex rel. STATE HIGHWAY COMMISSION, Petitioner- Appellant, v. Edwin STEINKRAUS and Eileen P. Steinkraus; W. Larry Miller and Helen Monica Miller and Florence A. Carmony, Defendant-Appellees.
• Court: New Mexico Supreme Court

Page 431

417 P.2d 431

76 N.M. 617

STATE of New Mexico ex rel. STATE HIGHWAY COMMISSION Petitioner- Appellant, v. Edwin STEINKRAUS and Eileen P. Steinkraus; W. Larry Miller and Helen Monica Miller and Florence A. Carmony Defendant-Appellees.

No. 7825.

Supreme Court of New Mexico.

July 5, 1966.

Rehearing Denied Aug. 30, 1966.

Boston E. Witt, Atty. Gen., Hadley Kelsey, Joseph L. Droege, William S. Martin, Jr., John C. Worden, Oliver G. Ricketson, George D. Sheldon, Richard T. Whitley, Donald B. Moses, Sp. Asst. Attys. Gen., Santa Fe, for appellant

Rhodes & McCallister, Albuquerque, for appellees.

OPINION

NOBLE, Justice.

The State Highway Commission of New Mexico (hereafter termed Commission) has appealed from a judgment awarding damages to defendants for the taking of certain of their property by eminent domain, brought pursuant to the special alternative condemnation procedure (§§ 22--9--39 to 22--9--61, N.M.S.A. 1953).

The Commission strongly urges error because the trial court permitted the landowners to call, as an adverse witness, an expert appraiser, Mr. McMullen, who was employed and paid by the Commission to appraise the property taken in this action. The exact ground of the asserted error is not entirely clear. It seems, however, to argue that a party who has not employed an expert for that purpose cannot require him to testify to matters within his expert knowledge, because (1) such testimony violates the attorney-client privilege, and (2) it is unfair to permit the condemnee to take advantage of the expert's work-product paid for by the State.

This question has not heretofore been determined by this court, and other jurisdictions are divided. See Annotations 77 A.L.R.2d 1191 and 86 A.L.R.2d 171. We point out at the outset that we are not here dealing with the case of an expert who refused to testify upon the ground that he was the agent or representative of the party who paid for his services, or that as an expert he is entitled to an expert's fee for testifying. Mr. McMullen made no objection to testifying. Counsel for the Commission objected on the ground that the expert had been retained by the State; had given an opinion to the State; and, that the nature of this information is privileged, the work-product of this appraiser which the State cannot be compelled to divulge. Clearly, the appraisal was not a privileged communication within the meaning of § 20--1--12, N.M.S.A.1953, which defines communications made in professional confidence; nor does it come within any of the circumstances specified by statute under which certain communications are privileged.

It is clear to use that the attorney-client privilege should only be applied to protect communications--not facts. Perhaps an expert's report may under some circumstances amount to a communication falling within the scope of the privilege; but, his observations and conclusions themselves, whether or not contained in a report, are facts which, if relevant, constitute evidence, and such expert's testimony has no blanket protection under the attorney-client privilege. 14 Stanford L.Rev. 455. Certainly an individual who has knowledge of material facts cannot, merely by reporting them to the attorney, prevent the other party from questioning him as to those facts. See People ex rel. Department of Public Works v. Donovan, 57 Cal.2d 346, 19 Cal.Rptr. 473, 369 P.2d 1; nor does it make such information protected conclusions any more than the account of one who witnessed a happening. Compare United Air Lines, Inc. v. United States, 26 F.R.D. 213 (D.Del.1960); United States v. Certain Parcels of Land, etc., 25 F.R.D. 192 (N.D.Cal.1959); White Pine Copper Co. v. Continental Insurance Co., 166 F.Supp. 148 (W.D.Wich.1958). We think the conclusions of an expert are as much evidence as are his observations.

This is not a situation where counsel was required to divulge from his files memoranda, statements or other written reports detailing the substance of conversations between counsel and a potential witness. See Hickman v. Taylor, 329 U.S. 495, 508, 67 S.Ct. 385, 91 L.Ed. 451. The opinions and conclusions of an expert are not those which Hickman sought to protect. See Development in the Law--Discovery, 74 Harvard L.Rev. 940. The opinions and conclusions of an expert constitute evidence in themselves. McCormick on Evidence, §§ 13--14. In theory, at least, the work-product doctrine only bars discovery before trial. See Haskell v. Siegmund, 28 Ill.App.2d 1, 170 N.E.2d 393.

Pennsylvania Co., etc. v. City of Philadelphia, 262 Pa. 439, 105 A. 630, 2 A.L.R. 1573; Cooper v. Norfolk Redevelopment & Housing Authority, 197 Va. 653, 90 S.E.2d 788; and L'Etoile v. Director of Public Works, 89 R.I. 394, 153 A.2d 173, 77 A.L.R.2d 1174, relied upon by the Commission are all distinguishable because in each case the expert either refused or objected to testifying for the condemnee, or the property owner abandoned the inquiry. Ramacorti v. Boston Redevelopment Authority, 341 Mass. 377, 170 N.E.2d 323, merely held that the court had not abused its discretion in refusing to require the expert witness to testify.

We agree with the Iowa court in Crist v. Iowa State Highway Commission, 255 Iowa 615, 123 N.W.2d 424, that while there may be a seeming unfairness in permitting one party to use the opinion of an expert employed and paid by his opponent, that is certainly not a valid objection where the state is seeking to take or damage private property for public use. Our Constitution, Art. II, § 20, makes it the responsibility of the Commission not only to see that land necessary for public highways is obtained at a price fair to the public, but it also has a duty to the property owner to see that he is fairly compensated. Since the Commission is a public body charged with those two responsibilities, we perceive no valid reason why use by a condemnee of the opinion of an expert employed by the Commission and paid from public funds is unfair to the Commission. The Commission's duty to see that the landowner is fairly paid for property taken or damaged removes any taint of unfairness that might exist in a controversy between private parties. And, as the Iowa court said, 'differences of opinion will arise and litigation will ensue.' It must be remembered that the expert, whose testimony was used by the condemnee in this instance, was paid for his appraisal of the property involved in this action with public funds. Under such circumstances, we perceive no reason why the Commission should object to his appraisal being made known. See Sachs v. Aluminum Co. of America, 167 F.2d 570, 571 (6th Cir. 1948), where an expert was required to...