# City of Los Angeles v. Cole

> California Supreme Court · June 27, 1946 · 28 Cal. 2d 509

URL: https://www.frixlaw.com/law-library/cases/9547755

## Case

- **Full name:** CITY OF LOS ANGELES, Respondent, v. HENRIETTA HAWLEY COLE Et Al., Defendants; CONCEPCION CALDERON DE ACOSTA Et Al., Appellants
- **Court:** California Supreme Court
- **Decided:** June 27, 1946
- **Citations:** 28 Cal. 2d 509; 170 P.2d 928; 1946 Cal. LEXIS 233
- **Precedential status:** Published
- **Opinion:** Dissent by Carter
- **Judges:** Carter, Spence
- **Cited by:** 53 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by County of Los Angeles v. Faus, 48 Cal. 2d 672 (1957).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9547755

## Opinion text

CARTER, J.
I dissent. I agree with what is said in the majority opinion relative to the abortive order granting a new trial and the estoppel invoked against the appellants relative thereto. I also agree that the exclusion of the testimony of appellants’ engineering witness was not prejudicial under the circumstances related in said opinion, but I do not agree with that portion of the majority opinion which approves the giving of instructions to the jury in an eminent domain proceeding to the effect that the price paid by the condemner for other similar property in connection with its contemplated project cannot be considered by the jury as evidence of the value of defendant’s property involved in the instant proceeding.
The precise issue in this case with reference to the instructions given to the jury is whether or not evidence of prices paid by the condemner for other property similar to defen *520 dant’s, the property in controversy, is admissible to show the value of defendant’s property. But that issue is really only one aspect or phase of a broader problem, to wit, is evidence of the price paid at sales, whether to the condemner or any other person, of other property similar to defendant’s, admissible to establish the value of defendant’s property. Logie, reason and authority compel the conclusion that evidence of the price paid at sales of similar property to persons other than the condemner is admissible to prove the value of the property in controversy. That such evidence is relevant to the value of the property in question cannot be doubted. Value is nothing more than the price for which property may be sold, and the value of other like property is highly probative as to the value of the property in question. It cannot be doubted that in the commercial field there is no more commonly accepted method for ascertaining property values than by comparison with other property and the price for which it is sold. It is aptly said: “that since value is a money-estimate of a marketable article possessing certain definable qualities, the value of other marketable articles possessing substantially similar qualities is strongly evidential and is so treated in commercial life; all the argument and protestation conceivable cannot alter the fact that the commercial world perceives and acts on this relevancy.” (Wigmore on Evidence (3d ed.), vol. II, p. 505, § 463.) The overwhelming weight of authority supports the proposition that evidence of sales of other similar property and the price paid is admissible to prove market value of the property in question. (Norwich Assessment Committee v. Pointer (Eng.), 2 K.B. 47; Stanton v. Embry, Administrator, 93 U.S. 548 [ 23 L.Ed. 983 ]; Miller v. United States, 125 F.2d 75 ; United States v. Meyer, 113 F.2d 387 ; Tennessee Coal, Iron & R. Co. v. State, 141 Ala. 103 [ 37 So. 433 ] ; Little Rock Junction Ry. v. Woodruff, 49 Ark. 381 [ 5 S.W. 792 , 4 Am.St.Rep. 51 ]; Crusoe v. Clark, 127 Cal. 341 [ 59 P. 700 ]; Loloff v. Sterling, 31 Colo. 102 [ 71 P. 1113 ]; Flemister v. Central Georgia Power Co., 140 Ga. 511 [ 79 S.E. 148 ]; Basye v. Hayes, 58 Idaho 569 [ 76 P.2d 435 ]; Rhodes v. Davis, 374 Ill. 65 [ 28 N.E.2d 113 ]; Department of Public Works v. Diggins, 374 Ill. 11 [ 27 N.E.2d 826 ] ; West Kentucky Coal Co. v. Dyer, 161 Ky. 407 [ 170 S.W. 967 ]; Warren v. Wheeler, 21 Me. 484 ; Mayor, etc. of Baltimore v. Hurlock, 113 Md. 674 [ 78 A. 558 ]; Iris v. Town of Hingham, 303 Mass. 401 [ 22 N.E.2d 13 ]; Forsyth Boulevard v. Forsyth, *521 127 Mo. 417 [ 30 S.W. 188 ] ; Eames v. Southern New Hampshire Hydro-Electric Corp., 85 N.H. 379 [ 159 A. 128 ]; Village of Reeder v. Hanson, 55 N.D. 331 [ 213 N.W. 492 ] ; In re Hudson Coal Co., 327 Pa. 247 [ 193 A. 8 ] ; Hervey v. City of Providence, 47 R.I. 378 [ 133 A. 618 ]; Kean v. Landrum, 72 S.C. 556 [ 52 S.E. 421 ]; Union Ry. Co. v. Hunton, 114 Tenn. 609 [ 88 S.W. 182 ]; Davis v. 70 Vt. 120 [ 39 A. 628 ] ; Seattle & M. Ry. Co. v. Gilchrist, 4 Wash. 509 [ 30 P. 738 ] ; American States Security Co. v. Milwaukee N. Ry. Co., 139 Wis. 199 [ 120 N.W. 844 ] ; Morrison v. Cottonwood Development Co., 38 Wyo. 190 [ 266 P. 117]; Wigmore on Evidence (3d ed.), § 463; Orgel on Valuation Under Eminent Domain (1936), § 135, et seq.; 18 Am.Jur., Eminent Domain, §351; 17 A.L.R. 101 ; 118 A.L.R. 869 .) There are eases in California which hold that evidence of such sales is not admissible to prove value, that is, valuation witnesses cannot be examined concerning other sales on direct examination. (City of Los Angeles v. Hughes, 202 Cal. 731 [ 262 P. 737 ] ; Estate of Ross, 171 Cal. 64 [ 151 P. 1138 ] ; Arnold v. Producers’ Fruit Co., 141 Cal. 738 [ 75 P. 326 ]; Spring Valley W. W. v. Drinkhouse, 92 Cal. 528 [ 28 P. 681 ] ; Central Pac. R. Co. v. Pearson, 35 Cal. 247 ; Thompson v. Stoakes, 46 Cal.App.2d 285 [ 115 P.2d 830 ]; Atchison, T. & S. F. Ry. Co. v. Southern Pac. Co., 13 Cal.App.2d 505 [ 57 P.2d 575 ]; Tatone v. Chin Bing, 12 Cal.App.2d 543 [ 55 P.2d 933 ]; Hibernia Sav. etc. Soc. v. Ellis Estate Co., 132 Cal.App. 408 [ 22 P.2d 806 ] ; City of Los Angeles v. Deacon, 119 Cal.App. 491 [ 7 P.2d 378 ] ; Merchants Trust Co. v. Hopkins, 103 Cal.App. 473 [ 284 P. 1072 ]; Fishel v. F. M. Ball & Co., Inc., 83 Cal.App. 128 [ 256 P. 493 ]; Palladine v. Imperial Valley F. L. Assn., 65 Cal.App. 727 [ 225 P. 291 ]; Reclamation Dist. No. 730 v. Inglin, 31 Cal.App. 495 [ 160 P. 1098 ].) But it has been intimated or held that the rule is to the contrary. (Betts v. Southern Cal. etc. Exchange, 144 Cal. 402 [ 77 P. 993 ]; Crusoe v. Clark, 127 Cal. 341 [ 59 P. 700 ] ; Moore v. Maryland Casualty Co., 100 Cal.App. 658 [ 280 P. 1008 ] ; Dean v. Hawes, 29 Cal.App. 689 [ 157 P. 558 ].) And it has been held that the valite of other similar property may be shown to establish the value of the particular property in controversy. (The price paid at sales of such other property is its market value on a competitive market under our system of free enterprise.) (Shoemaker v. Acker, 116 Cal. 239 [ 48 P. 62 ]; Cleland v. Thornton, 43 Cal. 437 .) On cross-examination a valuation *522 witness may be questioned in regard to his knowledge of sales of other property for the purpose of impeachment. (San Francisco v. Tillman Estate Co., 205 Cal. 651 [ 272 P. 585 ]; East Bay Mun. Utility Dist. v. Kiefer, 99 Cal.App. 240 [ 278 P. 476 , 279 P. 178 ]; Los Angeles Gas & Elec. Corp. v. Etienne, 83 Cal.App. 645 [ 257 P. 123 ]; and see cases cited supra.) If such evidence is admissible on cross-examination it cannot be denied that it must be considered relevant to the value of the property in controversy. Otherwise what difference would it make whether the expert valuation witness did or did not know of other sales if the existence of such sales had no bearing upon the value of the property in controversy.
So much for relevancy, but a ground commonly given for the exclusion of evidence of the price paid for similar property on direct examination is that to do so permits an excursion into collateral matters (e. g., whether the other property is similar, the circumstances of the sale, and its proximity to the instant problem) resulting in a confusion of issues and loss of time. There is little danger of confusion. The issue is value and there should be no difficulty in maintaining a clear course between other sales and that issue. Loss of time should not be a reason to exclude highly pertinent evidence. If so-called collateral issues are permitted on cross-examination why should they not be permitted on direct? Indeed the trier of fact is confused by such a distinction. Merely asking the witness as to his knowledge of other sales leaves the matter wholly up in the air. The jury knows nothing of the pertinency of such other sales and, as a practical matter, the trial court may instruct unavailingly until doomsday to the effect that reference to such other sales was only for the purpose of impeachment. The impression has been made on the jury. Why not allow such evidence on direct examination as relevant to value and permit a full disclosure to the jury of the relevancy of the other sales? Other sales are in fact not collateral to the main issue. They are directly pertinent to it. What property is selling for in the community is the measure of the market price. In any event the modern tendency is to liberalize the rules of evidence. The discretion of the trial judge is a barrier against fanciful flights into remote subjects. In answer to the objection with regard to collateral issues “it may be noted that this objection may or may not exist in a given instance, and that the rational and practical way of meeting it is to allow *523 the trial Court in its discretion to exclude such evidence when it does involve a confusion of issues, but otherwise to receive it.” (Wigmore on Evidence (3d ed.), vol. II, p. 505, §463; See, 4 Cal.L.Rev. 151, 152.)
In my opinion the cases heretofore cited which hold that the sales of other similar property are not admissible to prove value are clearly unsound and should be overruled. Their force is considerably'weakened if not destroyed by the addition in 1937 of section 1872 to the Code of Civil Procedure. It reads; “Whenever an expert witness gives his opinion, he may, upon direct examination, be asked to state the reasons for such opinion, and he may be fully cross-examined thereon by opposing counsel. ’ ’ The main purpose of that section was to do away with the former court made rule that an expert witness could not give his reasons. But if he may give his reasons those reasons may consist of reference to prices paid in sales of similar property in the vicmity. Certainly, he could give such reason for he could be asked on cross-examination concerning other sales. Being able to testify to these sales as reasons, they are direct and probative evidence on the value of the property in controversy.
In the instant case the challenged instructions to the jury dealt with the evidence of the price paid at sales of other property to the condemner in acquiring property for its project. On the general theory evidence of those sales was probative evidence of value. The only question is whether it should be excluded because it violated the substantive law test of market value; that is, a buyer and seller willing to deal and not acting under compulsion. That, however, is a matter going to the weight or value of the evidence not its admissibility and can properly be governed by the discretion of the trial judge. (See Wigmore on Evidence (3d ed.), vol. II, p. 505, § 463; 4 Cal.L.Rev. 151, 152.) If the circumstances of a particular sale are such that it was not a free bargain between the parties it might not be very valuable in ascertaining market value, but that depends upon the facts. All sales merely because they are to the condemner are not under fear or compulsion or lacking in freeness. The eondemner may well be paying what it feels the property is worth and the buyer selling for a price he believes is fair. The only case in California that declares evidence of such sales inadmissible is City of San Luis Obispo v. Brizzolara, 100 Cal. 434 [ 34 P. 1083 ], and there it was conceded that *524 evidence relating to other sales could be developed on cross-examination. If it was proper there as bearing on value it certainly was pertinent on direct examination. There are authorities declaring evidence of sales to the condemner admissible in a condemnation suit. (Shaw v. Monongahela Ry. Co., 110 W.Va. 155 [ 157 S.E. 170 ]; Hadley v. Board of Chosen Freeholders of Passaic County, 73 N.J.L. 197 [ 62 A. 1132 ] ; Ross v. Commissioners of Palisades Interstate Park, 90 N.J.L. 461 [ 101 A. 60 ] ; Eames v. Southern New Hampshire Hydro-Electric Corp., 85 N.H. 379 [159 A. 128]; Louisana Highway Commission v. Merchant (La.App.), 174 So. 696 ; Washington Home v. Hazen, 70 F.2d 847 ; 118 A.L.R. 869 , 898; Orgel on Valuation under Eminent Domain, § 146.) In Eames v. Southern New Hampshire Hydro-Electric Corp., supra, p. 130, the court said: “What the courts, holding to the majority view [that other sales to the condemner are not admissible], have seemingly done, is to adopt the mere pronounced phenomena incident to sales to a condemner as a conclusive test of their probative character. Although such sales are less likely to have useful evidentiary value than sales to strangers, no logical reason in principle is perceived why they should not have the same treatment. Their relative immunity from irrelevant influences is merely a matter of degree, and their reasonable freedom therefrom purely a matter of proof. The test of the probative character of a given sale of either class is to be found in answer to the inquiry whether the motivating circumstances influencing the parties thereto were such as probably to materially affect the price paid, and therefore to destroy its usefulness as a standard of value. ’ ’
In my opinion the giving of the instructions complained of constituted prejudicial error justifying a reversal of the judgment.
Traynor, J., and Schauer, J., concurred.
Appellants’ petition for a rehearing was denied July 24, 1946. Carter, J., Traynor, J., and Schauer, J., voted for a rehearing.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9547755. Public record. Not legal advice.