STATE HIGHWAY COMMISSION v. DUMAS ET AL, 238 Or. 449

LUSK, J. This is a proceeding in eminent domain commenced by the State Highway Commission to condemn land of the defendants for highway purposes. Plaintiff alleged in its complaint that the value of the property taken and damage to the remainder was $10,700. Defendants claimed $30,000. The verdict of the jury fixed the amount of defendants’ recovery at $19,000. Plaintiff has appealed.

We take from the plaintiff’s brief the following description of the premises involved: “The defendants’ property was located adjacent to the Pacific Highway West near the City of New-berg and consisted of an 0.39 acre parcel of land, together with a ‘Mom and Pop’ commercial enterprise made up of a combination gasoline station, grocery store with living quarters and other outbuildings. All of the improvements were included within the taking with the exception of personalty, including the defendants’ gasoline pumps.

Only a small, landlocked parcel consisting of 0.13 acre remained after the taking.” There are two assignments of error. The first challenges a ruling of the trial court denying plaintiff’s motion to strike out certain testimony given by the defendant Lawrence L. Dumas respecting the value of the property. Mr. Dumas testified that after he and his wife acquired the property in 1947 they made certain improvements. The store was lengthened about 12 feet, the back rooms were lengthened and the outside of the building was stuccoed.

They also built a cement reservoir for the purpose of storing water in the event of a water shortage in the summer time and put in flower beds. Mr.

Dumas testified that in his opinion the reasonable market value of the property immediately before the tailing was $30,000 and on being asked to state the basis of the opinion he answered: “Well, I — as I say, from what I paid for it and the improvements that I put on it and what it would bring, because I expected to live there for a few years more and as a home, and now I am without work; that’s why I arrived at $30,000.” On cross-examination he testified: “Q If I understand correctly, you arrived at your figure of $30,000 based on the cost of the improvements that you made? “A Cost and the, of course, the improvements that I have put on. “Q But, I mean, you based it on what the costs were to you to make whatever improvements you made after you purchased the property, is that correct? “A Well, the improvement plus what it cost me, yes. “Q But, in arriving at the $30,000 you actually based all or a portion of that amount on the amount of money that you had spent to make improvements since you purchased it, is that correct? “A After I purchased the place, yes, uh-huh. “Q Are you able to tell us, Mr.

Dumas, the amount of the $30,000 that represents the cost of any improvements that you have made since you purchased the property? “A Well, I spent over $5,000 — besides the labor —I done all the labor myself. “Q So you included in that figure $5,000, based on the cost of improvements that you have made, is that right? “A I don’t quite understand the— “Q Well, in arriving at your opinion of $30,000, does $5,000 of that amount represent the cost, new, of the improvements that you made when you made them? “A Yes.

That’s the material that I bought to make the improvements, yes.” Counsel for the plaintiff then submitted the following motion: “Plaintiff would move to strike the amount of $5,000 from the defendant’s testimony the value of this property, which is $30,000; on the grounds it is based on the cost of the improvements new and not on what the property is worth on a fair-eashmarket value.” The court denied the motion and the ruling is assigned as error.

We do not reach the substantive question whether in the circumstances of this case evidence of the cost of the improvements to which the defendant Dumas testified was relevant to the issue of fair market value. On his direct examination Dumas testified that he took these improvements into consideration in his estimate of value, but he was not asked about, nor did he testify to, their cost. Coneededly, up to this point his testimony was relevant. The evidence that the witness considered the cost of the improvements in his estimate of value and that this cost was $5,000 was brought out on cross-examination.

The purpose of the cross-examination was to disclose that Dumas had included an irrelevant factor in his estimate of $30,000 as the value of the property. When this appeared counsel for the plaintiff moved to strike the sum of $5,000 from the estimate. Counsel for plaintiff have left no doubt as to the meaning of their motion. The defendants argued in their brief that the motion was againt Dumas’ testimony on cross-examination and that ordinarily a party cannot assign as error the admission of evidence which he has elicited by cross-examination of his adversary’s witnesses.

To this contention the plaintiff in its reply brief answered: “In their brief, defendants state the plaintiff objected to the admission of evidence elicited by the plaintiff on cross-examination of the defendant, Lawrence L. Dumas. # * * This is not the case at all. Plaintiff’s motion to strike was as follows: [Setting out motion.] Thus, it is obvious that plaintiff’s motion to strike was not directed at the testimony elicited from Mr.

Dumas on cross-examination, but was directed at his estimate of value in the amount of $30,000 given on direct examination.” Again, it is stated in the reply brief that the plaintiff “* * * does not complain of the admission in evidence of the testimony elicited from Mr. Dumas on cross-examination. His testimony was not -unfavorable to tbe plainitff, nor was it inconsistent with plaintiff’s theory of the case. Mr.

Dumas’ testimony on cross-examination was the necessary and proper vehicle by which plaintiff exercised its right to test the credibility of the witness by inquiring into each and every element considered by him in arriving at his opinion of value for the purpose of showing the basis of his estimate to be improper and illegal and for the purpose of having a portion of his estimate of value stricken.” (Italics added.) The rule approved by the courts is that when cross-examination develops that the opinion of a witness as to the value of property is based wholly, or in substantial part, on improper or illegal elements, a motion to strike out the testimony of the witness as to value will lie: Oregon R. & N.

Co. v. Eastlack, 54 Or 196, 205, 102 P 1011. Many such decisions of the California courts are cited in the plaintiff’s brief: Rose v. State of California, 19 Cal 2d 713, 742, 123 P2d 505; Buena Park School Dist. v. Metrim Corp., 176 Cal App 2d 255, 262, 1 Cal Rptr 250; People v. Dunn, 46 Cal 2d 639, 641, 297 P2d 964; People v. Loop, 127 Cap App 2d 786, 800, 274 P2d 885; Blumenstein v. City of Long Beach, 143 Cal App 2d 264, 269-270, 299 P2d 347. See, also, Commonwealth v. Tyree (Ky) 365 SW2d 472, 476; City of Chicago v.

Spoor, 190 Ill 340, 352, 60 NE 540, and the discussion of this question in California Condemnation Practice (Cont. Ed. Bar, 1960), a publication of the State Bar of California. Plaintiff seeks to support its position by the rule that a motion to strike must be directed with precision to the matter sought to be stricken and that a motion which conjoins matter that is competent with such as may be said to be incompetent, without discrimination, is properly denied: Jennings v. Garner, 30 Or 344, 347, 48 P 177; Rose v. State of California, supra.

The argument seems to be that the testimony of the witness up to $25,000 was competent, but not so as to the remaining $5,000 and, therefore, that to come within the rule stated the motion must have been to strike out $5,000 from the witness’ answer. The decisions relied on do not support this theory. Jennings v.

Garner, supra, holds that where a witness testified to an alleged declaration of a purported agent touching his agency, which was incompetent, and also to statements of the purported agent as to the terms of an agreement to pay a commission to the plaintiff, which was competent, a motion to strike out all such testimony was properly denied. In Rose v.

State of California, an inverse condemnation action, a witness for the plaintiff, who had testified on direct to the amount the property was damaged, admitted on cross-examination that he had included in his estimate consideration of the diversion of public traffic which was held to be an improper element. Defendant moved to strike all of the witness’ testimony. The motion was denied and on appeal the ruling was sustained because the witness had testified to numerous relevant facts such as that the property was best adapted to industrial use, the character of the improvements, etc.

The motion was, therefore, too broad. It should have been limited to the witness’ estimate of value. Other cases cited by the plaintiff are of this kind. In the Bose case the witness was unable to segregate the amount of damages attributable to diversion of public traffic. Plaintiff argues that where, as here, the improper amount is segregated, a motion to strike the entire testimony of the witness as to value is too broad. No authority supports this position, so far as we are aware. As pointed out in Commonwealth v.

Tyree, supra, 365 SW2d at 476, where, on cross-examination, the factors a witness considered were elicited from him “* * * and one or more of those factors is invalid in that it involves an irrelevant measure of value or a legally noncompensable element of value, it would seem that his testimony should be subject to a motion to strike because it is based upon irrelevant factors. * * * In this situation it must be considered that the initial estimates of value were prima facie valid on the assumption that the witness considered only relevant factors, but when it is shown that actually he used irrelevant factors his estimates become invalid.

It might be, however, that in some instances where the witness has attributed a specific value to the irrelevant factor, that value could be eliminated from his estimate by a requested admonition, in which event the remaining estimate would be acceptable evidence.” As to the last sentence from the above quotation, it should be observed that in Kentucky “an ‘admonition’ is any authoritative oral communication or statement by way of advice or caution, made by the court to the jury during the trial of a case, respecting their duty or conduct as jurors, the admissibility or non-admissibility of evidence offered by the parties, or the purpose, if competent only for a particular purpose, for which any of that admitted might or should be considered by them.” Miller v.

Noell, 193 Ky 659, 661-662, 237 SW 373. Whether an “admonition” would have been proper in this case we need not consider for none was requested. Neither the dissenting opinion of Chief Justice Gibson in Rose v. State of California, supra, nor the opinion of the court in City of Chicago v. Spoor, supra, suggests the propriety of a motion such as the plaintiff made in this case.

Chief Justice Gibson, who thought the motion in the Rose case was not too broad, did say: “* * * Since the foundation of [the witness’] testimony was in part erroneous and since that part of his opinion which was due to improper elements could not be ascertained, the erroneous estimate of damage was unquestionably the proper subject of a motion to strike. * * *” 19 Cal 2d at 746.

The Illinois court in the Spoor case said of a similar situation, where the motion to strike the entire testimony of certain witnesses as to value was denied, that “the injury to the defendant could not be repaired by an instruction,” for since the witnesses could not separate the damages and state what part of them rested on an improper basis, neither could the jury. 190 111 at 350. In neither case is it suggested that if the amount attributable to the improper basis were segregated a motion to strike that amount from the witness’ total estimate of value was sustainable. In People v.

Dunn, supra, the claimed illegal amount was segregated and the court said: “Where it appears on cross-examination that the witness’ testimony as to market value is based upon improper considerations, it may be stricken from the record.” 46 Cal 2d at 641. In that case, however, the court held that the trial court erroneously determined that the testimony was irrelevant. Allowance of the plaintiff’s motion would have made the witness Dumas testify that in his opinion the property was worth only $25,000 instead of $30,000. This the court would have had no right to do.

As the Supreme Court of Georgia said of a similar motion which the trial court allowed: “We do not think the answer of the witness ought to have been cut up in this manner. Ry so doing he was made to testify what he did not intend to.” Atlanta Railroad Co. v. Kimberly, 87 Ga 161, 173, 13 SE 277, 27 Am St Rep 231. See 53 Am Jur 137, Trial § 151. For these reasons, we find the first assignment of error without merit. The second assignment of error is directed to the court’s denial of plaintiff’s motion to strike certain testimony of Arthur H. Vincent, an appraisal witness called by the defendants. Mr.

Vincent testified that the fair market value of the property taken was $20,000 and that the remainder had only nominal value.

He stated that he arrived at the figure of $20,000 in the following manner: “* * * I considered there were approximately 165 to 168 feet of frontage on one of the heaviest traveled highways in the state, with a good water supply — dug well plus a large storage which was spring fed — and then I took into consideration the buildings: A store building approximately 45 feet by 20 feet on this highway, with a residence in the back; normal car garage — not utilized as such at the moment — and then a very good shop building— concrete floor.

I broke that down and I put a value of $5,000 on the property itself, including the well and the reservoir; the store building and pumps — two gas pumps and two underground tanks —I put a value of $7,500 on that part of it. Then the residential area in the back I placed a value of $6,000 on that. On the shop building — 28 by 10— I believe that was — with concrete floor, I placed a value of $1,500 on that. I believe that will total up to $20,000.” On cross-examination the witness testified: “Q Now, when you appraised this property, Mr.

Vincent, did you include the gasoline pumps? “A Surely. “Q At what value, sir? “A I just lumped the store building part and the pumps and the tanks at $7,500. “Q Can you segregate the value of the pumps, Mr. Vincent? “A No, sir. “Q Is that impossible for you to do ? “A Well, not exactly impossible, but I don’t know.

I was appraising it as a going business— as it is.” Thereupon counsel for the plaintiff submitted the following motion: “Plaintiff moves to strike the sum of $7,500 from the witness’ testimony as to the value of the improvements on the grounds that it includes an item which he cannot segregate and which is not properly included.

If he cannot segregate the price of the pumps — which we did not purchase in this case- — then I submit that that — that his entire testimony as to the value of the improvements would be improper and should be striken [sic] from the record and the jury instructed to disregard it.” The court denied the motion. It appears that without objection the witness testified to separate valuations placed by him on the land and on the various improvements -and was permitted to give the total of these figures as his estimate of the value of the property as a whole.

But he included in the figure of $7,500 — his estimate of the value of the store building, the tanks, and the pumps — an unascertained amount as the value of the pumps, an item of personal property for which, concededly, the defendants were not entitled to recover compensation. The motion was a proper one, within the rules above ¡stated, and should have been allowed.

It is unlikely, however, that the error influenced the jury to any appreciable degree, particularly as the court in its charge instructed the jury that “ [n] othing can or should be allowed for any personal property which might have been located on the property under consideration.” Of course, as counsel for plaintiff suggest, the jury could not have known from the evidence precisely how much to deduct for the pumps, but it was a minor item, and the verdict demonstrates that, while Vincent’s testimony may have been persuasive with the jury, yet they were unwilling to follow his figures to the last dollar.

The verdict was for $1,000 less than his estimate. On the other hand, the jury were evidently not impressed either by the testimony of the owner Dumas, or by the appraisal evidence of witnesses on behalf of the state, whose highest estimate of value of the premises was $11,950. It is to be doubted that on another trial there would be a widely different result. The error, in our opinion, was not of sufficient consequence to justify a reversal. See Rose v. State of California, supra, 19 Cal 2d at 743. The judgment is affirmed.