State Roads Commission v. Bare

• Decision Date: 11 May 1959
• Docket Number: No. 226,226
• Citation: 151 A.2d 154,220 Md. 91
• Parties: STATE ROADS COMMISSION of Maryland v. Troy Kilby BARE et ux.
• Court: Maryland Court of Appeals

Page 91

220 Md. 91

151 A.2d 154

STATE ROADS COMMISSION of Maryland v. Troy Kilby BARE et ux.

No. 226.

Court of Appeals of Maryland.

May 11, 1959.

J. Thomas Nissel, Sp. Atty., Baltimore (C. Ferdinand Sybert, Atty. Gen., Joseph D. Buscher, Sp. Asst. Atty. Gen., Walter E. Buck, Jr., Elkton, and Herbert L. Cohen, Sp. Attys., Baltimore, on the brief), for appellant.

John D. Alexander and Thomas F. Comber, 3rd, Baltimore (Wm. Pepper Constable and Constable, Alexander & Daneker, Baltimore, on the brief), for appellees .

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

PRESCOTT, Judge.

The State Roads Commission has appealed from a judgment entered in the Circuit Court for Cecil County pursuant to an inquisition of a jury in a condemnation case. The only questions presented involve the action of the trial court in refusing to grant the appellant's motion to strike the testimony of one of the defendants' witnesses.

The appellant's brief fails to set forth with clarity the manner in which its contentions were presented in the lower court and reserved for determination here. A reading of both the appellant's and appellees' briefs and the record extract indicates that a Mr. Joesting was called as a witness by appellees and testified, at some length, concerning his estimate of the injury suffered by the appellees to the remainder of their property as a result of the taking of a portion thereof by the appellant. Included in his estimate was a somewhat involved item of damages for the increased flowage of water upon the appellees' land because of a larger amount of impervious surface of a result of widening a road and the installation of an enlarged culvert conducting surface water onto their land. He gave, inter alia, his estimate of increased surface water flowage, the damage to particular portions of the property by reason thereof, and the cost of ditches to carry off the increased amount of water, both on direct and cross-examination. When partially through cross-examination, the appellant's counsel moved 'to strike the testimony of this witness concerning water damages, because it is based on conjecture and not facts. * * *.'

The appellees claim the motion was too broad to be effective; and, even if it were not too broad, the court's ruling thereon was harmless, because the same witness later gave the same testimony which was included in the motion to strike, without objection being made thereto. As pointed out above, the appellant, in its brief, does not attempt to argue how the ruling on its motion to strike was reserved, but, in oral argument, it contends the motion was not too broad, and that if evidence be objected to once, it is unnecessary to repeat the objection if the testimony be reoffered. We think the appellees are clearly right in both of their contentions. The motion is obviously too broad and general in requesting the court to strike the testimony of the witness 'concerning water damage,' when, at least, a portion thereof was admissible (and we so hold), even though another portion may be objectionable. Waltzinger v. Birsner, 212 Md. 107, 123, 128 A.2d 617, and cases therein cited; Blinder v. Monaghan, 171 Md. 77, 85, 188 A. 31. As so aptly stated in Hohman v Hohman, 164 Md. 594, 613, 165 A. 812, 819, '[i]t is well settled that a judge is not required to go through the testimony to pick out testimony piecemeal which would come within such a general description.' In addition, there is no doubt that Joesting, in his re-direct examination, repeated his testimony to...