People Ex Rel. Department of Public Works v. Kawamoto

DRAPER, P. J.

In this eminent domain proceeding, judgment on jury verdict was for $140,000. Motion for new trial was denied. Plaintiff appeals from the judgment.

[20]

Defendants’ experts fixed value of the property taken at $145,000 and $142,000, and the owner at $160,000. The state’s experts testified to values of $97,000 and $96,500. The nearness of the jury figure to those of the owners’ witnesses doubtless motivated this appeal, but appellant concedes that the judgment is within the range of the appraisals, and thus supported by evidence. The attack is upon rulings on admissibility of evidence.

Near the close of one trial day, plaintiff’s counsel, cross-examining defendants’ expert Lee, asked about a sale to Ferry-Morse Seed Co. made in June 1959. The witness stated that sale price, and said that he had not considered it in reaching his own valuation, but would be “more interested” in a sale two years later by Ferry-Morse to the state. He had been unable to learn the price of that sale, but admitted that it “might” affect his opinion. The following morning, on resuming cross-examination, plaintiff’s attorney returned to this subject. The witness reaffirmed that he had no information as to sale price. Counsel commenced a question “Well, if you knew they paid . . .and defendants objected that it was a sale to “a condemning authority.” In the course of argument on this objection, the court twice said the sale would not be admissible “if it is not a sale on the open market,” the objection was sustained, and the court said it would not permit the inquiry “because it is a sale to the state under threat of condemnation.” Plaintiff argues that cross-examination was erroneously limited.

“ ‘[E]vidence of the price paid [by the condemner] should come in if the condemner can satisfy the judge that the price paid was sufficient^ voluntary to he a reasonable index of value’ ”

(County of Los Angeles

v.

Faus,

48 Cal. 2d 672, 679 [312 P.2d 680], quoting with approval from McCormick on Evidence).

The trial court’s comments alerted plaintiff to the need to show that the price was agreed upon voluntarily and without compulsion. Plaintiff neither attempted nor offered to meet this issue, although the burden was clearly upon it to do so. Moreover, the cross-examination had served its full purpose of showing that the witness had not considered this sale, and that he did not know of its price. No amount of further questioning could secure evidence of price from him. The real objection is that counsel, who had not been sworn, was not permitted to state the price. Since