The opinion
George Rose Smith, Justice, dissenting. I would reverse this judgment. In simple fairness a party ought not to be permitted to show, as the appellees did in the trial court, that his adversary has failed to call as a witness an expert whom his adversary employed merely for the purpose of obtaining an opinion. If such testimony has any effect at all, other than its intended purpose to arouse an attitude of passion and prejudice in the jury room, that effect is completely outweighed by reasons of policy for not admitting such proof and by the weight of authority elsewhere.
First, the testimony obviously is of no direct aid to the jury. Their problem is to arrive at the value of the property, in dollars and cents. To inform them that the highway department has not called to the witness stand one of its appraisers who has appraised the property cannot be of any assistance to the jury in reaching a dollars-and-cents verdict. Such proof merely arouses prejudice. By analogy, there is doubtless some slight probative value in testimony showing that a defendant later made repairs to the instrumentality involved in the accident in controversy, or in testimony showing what happened during the deliberations of the jury. But that slight probative value is demonstrably overbalanced by the policy considerations against the use of such evidence. That should be our holding here.
Secondly, on the record before us there is no reason to suspect any wrongdoing on the part of the highway department or its attorneys. Ordinarily a condemnor first makes an effort to purchase the desired property or right-of-way, rather than resorting at the outset to an eminent domain proceeding. There is clearly nothing wrong in the condemnor’s decision to send three of its appraisers, instead of only one, to view the property, before beginning to negotiate for its purchase. Presumably the landowner does exactly the same thing. Yet there is certainly no duty on either side to bring into court the appraiser whose opinion was the least favorable to the party employing him. Yet the majority opinion not only implies the existence of such a duty; it actually penalizes a litigant for not trying his lawsuit in what his attorneys believe to be the most advantageous and ethical procedure for their client.
Thirdly, it is no answer to say, as the majority do, that the party employing the appraiser has the right to explain the failure to call him as a witness. When the party and his attorney have done nothing wrong, they ought not to be put in the unfair position of having to prove the negative, by proving their innocence. An attorney may have many perfectly valid reasons for not calling the appraiser whose valuation was least favorable to his client. The attorney may simply conclude, in good faith, that the particular expert’s opinion is not as well founded as that of another appraiser. He may think that the particular appraiser would not handle himself well on the witness stand. He may learn that the particular appraiser has been to some extent discredited in an earlier trial in the same courtroom (a situation that was before us recently). Such reasons, though perfectly valid, are not readily explainable to a jury.
Moreover, the very attempt to explain raises collateral issues that are a waste of time and expense for all concerned. Yet the majority’s opinion will encourage that waste. This case, as a precedent, cannot be limited to real estate appraisers employed by the highway department. It will apply to the landowner’s appraisers. It will apply to both the plaintiff and the defendant in personal injury cases, where they obtain more than one expert medical opinion before trial. It will apply to all cases involving expert opinion testimony.
Finally, the better reasoned cases are against today’s decision. The exact nature of the inference that arises when a party fails to call a particular witness has been expressed in- countless different ways. McCormick puts the matter in the simplest possible terms by saying that the inference arises“[w]hen it would be natural under the circumstances to call a particular witness.” McCormick on Evidence, § 249 (1954). Caution must be used in allowing such an inference to be injected into a case. Schoenberg v. Commissioner of Internal Revenue, 8th Cir., 802 F. 2d 416 (1962); Grady v. Collins Transp. Co., 341 Mass. 502 , 170 N.E. 2d 725 (1960).
I can find no clearcut holding that such evidence is admissible. Certainly the Arkansas cases cited by the majority do not require such a result. In Abbott v. Prothro, 228 Ark. 230 , 307 S.W. 2d 225 (1957), the litigant had employed three different surveyors to survey a particular line. A surveyor is an expert, but he testifies to facts, not to opinions. In Broomfield v. Broomfield, 242 Ark. 355 , 413 S.W. 2d 657 (1967), the witness who was not called was actually a party to the suit and, according to her codefendant, supposedly had relevant information about the case.
The case most clearly similar to this one is State v. Biggers, 360 S.W. 2d 516 (1962), which was cited and followed in the later Texas case cited by the majority. There the court, in answering the identical arguments now made by the appellees, had this to say:
[W]e are not to be understood as holding that the trial court erred in refusing to permit respondents to prove by the witness, or independently, that the witness was employed by the State Highway Department to make an appraisal of the property, that his appraisal was made for the State Highway Department, or that he was paid by the State Highway Department for making the appraisal. That proof could have no relevancy to the issues in the case. As we view the matter, its tender could only be for the purpose of supporting the credibility of the witness or of creating the impression with the jury that the State was suppressing evidence. It would not be admissible for either purpose. By calling Crowley to testify respondents make him their witness, and once his competency as an expert is established, they have no right to shore up his credibility until he is impeached or his credibility attacked. [Cases cited.] And a decision not to call as a witness one employed to investigate and evaluate facts and report an expert opinion is not a suppression of evidence. [My italics.]
In the Washington case cited by the majority, State v. Washington Horse Breeders Assn., the proffered evidence was excluded by the trial court. That decision was affirmed, the court saying that the question involved the exercise of discretion by the trial judge. A similar point of view was taken in Epstein v. City and County of Denver, 133 Colo. 104 , 293 P. 2d 308 (1956), where the court, in affirming the trial court’s decision to exclude the evidence, said:
The jury was obligated to determine the value of the subject property upon the evidence before it under the instructions of the court, and could not indulge in surmises or speculation concerning what might or might not have been the result of an appraisal by some person or persons not produced as witnesses in the cause.
In Kentucky the point arose in a will contest when one side attempted to show that the other side had employed a handwriting expert without using him as a witness. With no reference to discretion, the court held the proffered proof to be inadmissible, saying:
Concerning the evidence that the appellees did not use as a witness a handwriting expert they had employed, the appellant seeks to invoke the rule that, where a party does not produce material evidence in his possession and under his control, there is a presumption that the evidence would be unfavorable to him. We are not aware that his rule has ever been applied to an expert witness whose testimony would be merely an opinion. In addition, the witness was available to the appellant, and his testimony therefore was not within the possession and under the control of the appellees, within the meaning of the rule. [Whitcomb v. Whitcomb, 267 S.W. 2d 400 (Ky. 1954).]
I do not mean to imply that the unfavorable inference in question can never arise with respect to a party’s failure to call an expert witness. Of course it can, as in the familiar situation in which an injured plaintiff fails to call the physician who has been treating him. That situation, however, falls within McCormick’s statement, that it would be natural for the party to call the particular witness. It is an entirely different thing to permit a litigant to introduce proof not otherwise in the case, for the deliberate purpose of creating an atmosphere of passion and prejudice in the jury room. I would hold such testimony to be inadmissible; or, if any discretion can be said to be involved, I would hold that it was abused in the court below.
Harris, C.J., and Jones, J, join in this dissent.