Arkansas State Highway Commission v. First Pyramid Life Insurance Co. of America

John A. Fogleman, Justice, dissenting in part. I agree that the judgment must be reversed because of the exclusion of the testimony of Allen Horne. I cannot agree, however, with the court’s holding as to the testimony of Wesley Adams.

The trial of any lawsuit should be a search for truth, not a “cat and mouse” game. This should especially be true in an eminent domain suit. It is a procedure for seeking a truth based on an idealistic concept, that of “just compensation” for “private property . . . taken, appropriated or damaged for public use.” Art. 2, § 22, Constitution of Arkansas. The application of this concept in a realistic way is essential to a government which puts more emphasis on the rights of the individual and on the concept of private property than on sovereign rights. Under the Constitution of Arkansas, great emphasis is put upon the rights of the individual by Art. 2. Specifically, in the context of this case, § 22 of that article expresses the philosophy of this state in seeking to balance the inequality inherent in a contest between the might of the sovereign and the relative impotence of its subject. Before the “State’s ancient right of eminent domain” is “conceded” by Sec. 23, this document pronounces in Sec. 22 that “[t]he right of private property is before and higher than any constitutional sanction.” That section goes further than most American constitutions in that it requires just compensation for damaging private property, as well as for its taking. The fundamental basis of the American system is the accentuation of the rights of the citizen-subject, accompanied by limitations on sovereign power.

In this case, the ultimate power of the sovereign is pitted against the private citizen-subject, who bears the burden of proving by a preponderance of the evidence the amount of “just compensation” due him for his property taken by the sovereign. The combatants in this contest are not equal. The Arkansas State Highway Commission is the state in these proceedings. Once we did not think so, especially where the power of eminent domain was exercised. Campbell v. Arkansas State Highway Com’n., 183 Ark. 780 , 38 S.W. 2d 753 . But later, the state’s sovereign immunity was extended to this commission. Arkansas State Highway Com’n. v. Dodge, 190 Ark. 131 , 77 S.W. 2d 981 . All the might of the sovereign became fully vested by Arkansas State Highway Com’n. v. Nelson Bros., 191 Ark. 629 , 87 S.W. 2d 394 , and has remained so continuously. It was extended to eminent domain actions by Arkansas State Highway Com’n. v. Kincannon, 193 Ark. 450 , 100 S.W. 2d 969 . The continuous emphasis placed upon the posture of the commission is illustrated in the following unbroken line of cases, some of which admittedly produced extremely harsh results by leaving the property owner to the grace of the sovereign, i.e., by “filing an administrative claim for such relief as the State may see fit to provide.” See Bryant v. Arkansas State Highway Com’n., 233 Ark. 41 , 342 S.W. 2d 415 and the following cases: Arkansas State Highway Com’n. v. Partain, 193 Ark. 803 , 103 S.W. 2d 53 ; Federal Land Bank of St. Louis v. State Highway Com’n., 194 Ark. 616 , 108 S.W. 2d 1077 ; Arkansas State Highway Com’n. v. Bush, 195 Ark. 920 , 114 S.W. 2d 1061 ; Arkansas State Highway Com’n. v. Palmer, 222 Ark. 603 , 261 S.W. 2d 772 ; Arkansas State Highway Com’n. v. McNeil, 222 Ark. 643 , 262 S.W. 2d 129 ; Roesler v. Denton, 239 Ark. 462 , 390 S.W. 2d 98 ; Arkansas State Highway Com’n. v. Lasley, 239 Ark. 538 , 390 S.W. 2d 443 ; Arkansas State Highway Com’n. v. Cunningham, 239 Ark. 890 , 395 S.W. 2d 13 ; Arkansas State Highway Com’n. v. Flake, 254 Ark. 624 , 495 S.W. 2d 855 ; Arkansas State Highway Com’n. v. Rice, 259 Ark. 190 , 532 S.W. 2d 727 ; Tri-B Advertising, Inc. v. Arkansas State Highway Com’n., 260 Ark. 227 , 539 S.W. 2d 430 . Casting aside “due process” and “equal protection” arguments that might be advanced 1 against barring inverse condemnation where the taker (or “damager”) is the Arkansas Highway Commission, via the dilution of Art. 2, § 22 by making Art. 5, § 20 superior, the appellant in this case is the complete sovereign in its field. That sovereignty has been more firmly established since, in the wisdom of the people of Arkansas, the ultimate sovereign (see Art. 2, § 1, Constitution of Arkansas), Amendment 42 was adopted.

Thus, when the property was taken, the appellee bore the burden of showing, to the satisfaction of a jury, by a preponderance of the evidence, the amount by which it would be justly compensated. A preponderance of the evidence is another concept that is more susceptible to perception than definition. We spoke of it in Titan Oil & Gas Co. v. Shipley, 257 Ark. 278 , 517 S.W. 2d 210 . There we said:

The weight to be given evidence depends upon its effect in inducing belief. Romines v. Brumfield, 199 Ark. 1066 , 136 S.W. 2d 1023 . Where evidence is in conflict, that which preponderates is the evidence entitled to the greater weight in respect to credibility. Missouri Pacific Railroad Co. v. Hancock, 195 Ark. 414 , 113 S.W. 2d 489 . There is a preponderance of the evidence only when there is a preponderance of all reasonable inferences that might be drawn to prove the principal facts sought to be established, sufficient to outweigh all other contrary inferences. Smith v. Magnet Cove Barium Corp., [ 212 Ark. 491 , 206 S.W. 2d 442 ].

In Smith v. Magnet Cove Barium Corp., supra, we had more to say on the concept. Omitting that portion of the language upon which we relied in Titan, we said:

*** The term does not mean preponderance in amount, but implies an overbalancing in weight. United States v. Mancini, D.C. Pa., 29 F. Supp. 44 -5. ***

The words “weight,” “credibility,” “overbalancing,” “degree,” “force,” “tipping of the scales,” and others of similar connotation, have been used by opinion writers so long that one would suppose their inclusion in “preponderance of the evidence” gives to the term a fixed, inflexible meaning, applicable alike to all cases where the rule invokes the use. Much must be left to the Judge who considers the evidence. Nature of the testimony, demeanor of the witness if the hearing is oral, opportunity for acquiring the information it is sought to impart, interest in the subject matter or in the parties to be affected, bias based upon political, secular, or novel social beliefs, regard for accepted conventions in dealing with conduct and behavior, environment, a capacity to understand, fidelity to the oath that has been taken, — these and other considerations are, or may be, components of that general result called “preponderance.” The number of witnesses is not controlling, and may even be unimportant. It is possible for cumulus error to overshadow intrinsic truth, and the statement of a single witness may be entitled to more consideration than assertions of a dozen whose source of knowledge or capacity for appraising value impairs the probative force of testimony. [Emphasis mine.]

In arriving at the truth as to just compensation, there are rules of evidence to be followed. The most recent ones are the Uniform Rules of Evidence, set out in Ark. Stat. Ann. § 28-1001 (Repl. 1976). They are to be construed to-secure fairness in administration and promotion of growth and development in the law of evidence, to the end that truth may be ascertained and proceedings justly determined. Rule 102. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 401. The evidence in this case falls into the category of expert opinion testimony, which is admissible when specialized knowledge will assist the trier of fact to understand the evidence or determine a fact issue. In such a case, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify by stating his opinion. Rule 702.

Wesley Adams fell into this category. What is important, however, is the weight to be given his testimony. Appellee should have been permitted to show every factor which might persuade the jury to give his testimony more weight than it gave that of other witnesses. The only prejudice to the sovereign in this case was that there were compelling reasons for giving his testimony more weight than might have been given testimony of those who had been employed by appellee for the express purpose of giving an opinion or by others employed by the sovereign, whose opinions found greater favor in its sight.

The question as to the showing that Adams was employed to make an appraisal for the Arkansas State Highway Commission must be examined in the interest of fairness, and in light of emphasis on the rights of the subject and the preservation of the right of private property.

I suggest that it is very important that Adams was caused to make his appraisal and express his opinion as to just compensation at a very critical stage of the proceeding. It was at the time the sovereign was to decide the amount of money it would deposit in the registry of the court to assure the private property owner that it would receive just compensation, in order that the sovereign might take possession of the property before a jury decided the amount which constituted just compensation.

Appellant must have thought that Adams’ testimony would be given considerable weight. During discovery procedures, it successfully avoided disclosing the fact that Adams had made an appraisal for it until it was compelled to do so by the trial court. When Wesley Adams was called as a witness by appellee, appellant objected that his appraisal was privileged (but it was not). Appellant seems to have abandoned that objection. It further made the objection that use of his testimony should be prohibited on the ground that Adams had a contractual relationship with the Arkansas State Highway Department.

It was important for the jury to know the purpose for which Adams made his appraisal. It was also important for the jury to know that this expert had not been employed by anyone who had any interest in the lands taken. Appellant says that it should not be put in the position of having to explain why it did not choose to use Mr. Adams as one of its expert witnesses. Why not? It says in its brief that the reason was that he considered, as a basis for his opinion, the transaction between Harris Cattle Company and First Pyramid Life Insurance Company, the details of which we hold to be admissible evidence on retrial. Appellant is still going to have to explain why this transaction does not afford a basis for an opinion as to the land value, even if Adams does not testify. Other witnesses used by appellant also used this transaction as a basis. Furthermore, appellant informs us that Adams’ appraisal, and all other appraisals, are reviewed by a reviewing appraiser, who may reject an appraisal based upon a factual consideration he considers inaccurate. If the reviewing appraiser is competent to perform his job, why can’t he show the inadequacies of the appraisal that caused it to be rejected? What is there about the fact that Adams submitted an appraisal that was rejected by the party who employed him that would arouse passion in the breast of a juror or embed prejudice in his mind? Prejudice cannot be inferred from the fact that the jury verdict was for the exact compensation that was just, in the opinion of Adams. It simply indicates that the jury found that his testimony carried the greatest weight.

It was also important for the jury to know that Adams was under contract with appellant to make appraisals when he testified.

I would suggest that the majority has a new definition for “reconsidered.” The rule stated in Phillips was to “be reconsidered.” In today’s opinion the majority says that the questions posed by appellant were “virtually answered” in Arkansas State Highway Com’n. v. Witkowski, 257 Ark. 659 , 519 S.W. 2d 743 . The two terms are certainly not synonymous. Furthermore, a different question was posed in Witkowski, i.e., whether a party to an eminent domain action could present evidence to a jury that the adverse party had used appraisers that were not called to testify. In this case, the appraiser in question was called to testify. I am unable to see how Witkowski answered the question.

I am convinced that the cases cited by the majority in support of its position are not sound. One of them does not seem to me to support that position at all. That case is State Highway Com’n. v. Texaco, Inc., 502 S.W. 2d 284 (Mo., 1973). In that case, the landowner moved to strike the testimony of three expert valuation witnesses on the ground that the state withheld an appraisal by a fourth such expert, more favorable to the landowner than the other three. The landowner sought to equate this action with that of the state in Brady v. Maryland, 373 U.S. 83 , 83 S. Ct. 1194 , 10 L. Ed. 2d 215 (1963), where evidence favorable to the defendant was withheld by the state. Naturally the court held Brady inapplicable. Furthermore, there the landowner knew the value put on his land by this expert.

I am willing to join with the court in holding Adams’ testimony admissible when called by appellee. In that respect, I am persuaded by cases cited by appellee such as State v. Steinkraus, 76 N.M. 617 , 417 P. 2d 431 (1966); Town of Thomaston v. Ives, 156 Conn. 166 , 239 A. 2d 515 (1968), and cases cited in those opinions. But I also agree with the holding in City of Baltimore v. Zell, 279 Md. 23 , 367 A. 2d 14 , that the matter of admitting the fact that the appraiser had been employed by the condemning authority is a matter lying in the sound judicial discretion of the trial court. The Maryland court said:

*** We also have no disagreement with the general principle that a party ordinarily may not sustain the credibility of his own witness absent an attack upon credibility by the other side. *** Nevertheless, we believe that the opinions in the above-cited cases, and the City’s position in the instant case, represent too rigid an application of the general principle.

The rule that one cannot bolster the credibility of his own witness, absent an attack upon credibility by the other side, is not without exception. *** Moreover, the rule is usually applied in completely different circumstances than presented in the instant case, such as an attempt to call an additional witness to testify concerning the good character for veracity of the witness .or an attempt to offer a prior consistent statement of the witness solely for the purpose of supporting his veracity. *** In those circumstances, as Wigmore points out, valuable trial time is taken up by the introduction of unnecessary and often cumbersome evidence, as an unimpeached “witness may be assumed to be of normal moral character for veracity ...” *** However, merely asking a witness a brief preliminary question concerning his employment in connection with the case is not subject to this same objection.

It is a routine practice in trials for an attorney to ask his witness certain preliminary questions which may not be relevant to the issues being litigated, which may go beyond mere identification and which are designed to show that the witness will be somewhat credible or not biased in favor of the side calling him. For example, the educational background or professional status or employment position of a non-expert witness may be asked, or the witness’s lack of prior contact with the side who has called him may be brought out. These questions give the jury some knowledge of the individual and a more complete perspective in considering his testimony. *** [Citations omitted.]

Í believe that the majority has gone too far in indicating that Adams’ testimony was not properly admitted in rebuttal, and in attempting to control the trial court’s discretion in that respect on retrial. It did tend to rebut testimony by the two expert witnesses presented by the state. One of them had been employed the week before the trial, and his identity first disclosed to appellee virtually on the eve of trial.

In all other respects, I agree with the majority opinion.

It appears that we have been faced with such an argument only once. Wc somewhat summarily rejected it in Arkansas State Highway Com'n. v. Flake, 254 Ark. 624 , 495 S.W. 2d 855 .