Mayor of Baltimore v. Zell

Eldridge, J., delivered the opinion of the Court. In this condemnation action brought by Baltimore City, the City had employed an appraiser to evaluate the subject property but did not call that particular appraiser as a witness. The defendant property owners then called the same appraiser as a defense witness. The City did not attempt to show that the appraiser was biased and did not in any manner attack his credibility.

Nevertheless, over the objection of the City, the trial court permitted defense counsel to bring out the fact that the City had initially employed the witness in connection with the case. The principal issue on this appeal is whether, under circumstances such as these, the trial court may in its discretion permit one side to bring out the fact that its witness was initially employed by the other side. We hold that the trial court may permit such disclosure, and we affirm. On November 18, 1974, the Mayor and City Council of Baltimore filed a petition for condemnation against Harry and Irene Zell and Joseph and Jesse Slevitz, owners of property at 2210 Washington Boulevard in Baltimore City, to acquire the property for highway purposes.

At the same time, the City filed a petition for immediate possession and title and deposited $99,000.00 in the court registry. The property had been used by the defendants as a junkyard until the City took possession in 1974. Trial of the condemnation ease began January 19, 1976, before Judge Meyer M. Cardin and a jury, in the Court of Common Pleas of Baltimore City. The only real issue at the trial concerned the value of the property.

The City called as an expert witness a real estate appraiser, Mr. Walter A. Reiter, Jr., who testified at length concerning the value of the property. Following Mr. Reiter’s testimony the City ²⁵ rested, and the defendants’ attorney then made his opening statement to the jury. The trial court, over the City’s objection, permitted the defendants’ attorney in his opening statement to tell the jury that one of the appraisers who would be called as a witness by the defendants had initially been hired in the matter by the City. The defendants then called as their first witness Mr. William H. Baldwin, a real estate appraiser who had been engaged by the defendants to make an appraisal of the property.

After Mr. Baldwin’s testimony, the defendants presented as their second expert witness Mr. J. Sheridan McClees, Jr. Following some preliminary questions by the defendants’ attorney and by the City’s attorney concerning Mr. McClees’s qualifications as a real estate appraiser, the direct examination of Mr. McClees began as follows: “Q. (By defendants’ attorney) Mr. McClees, were you hired by or on behalf of the Mayor & City Council of Baltimore to make an appraisal of property at 2210 Washington Boulevard? “(City’s attorney) Objection, Your Honor, for the reason previously stated. “(The Court) He may answer yes or no. “(The Witness) Yes. “Q. (By defendants’ attorney) When were you hired by the City to make such appraisal? A. Sometime, I think it was, in about November of 1975, or well — maybe October.

It was in the last part of 1975. “Q. And did you, in fact, make an appraisal of the property at 2210 Washington Boulevard for the City? A. I did.” Mr. McClees went on to testify that the value of the property was $148,000.00. This valuation was essentially in accord with that testified to by Mr. Baldwin, but it was considerably higher than the valuation placed on the property by the City’s witness, Mr. Reiter. Thereafter, the jury determined that the value of the property was $148,000.00.

From the judgment entered on the ²⁶ jury’s verdict, the City took an appeal to the Court of Special Appeals. Prior to any decision by the Court of Special Appeals, we granted a writ of certiorari to review the case. This Court has not previously considered the particular evidentiary issue raised by the City on this appeal, namely where one side calls as its own witness someone who had originally been employed in the matter by the other side, whether, in the absence of any attack upon the witness’s credibility, the party calling the witness may bring out the fact of employment by the other side. The few cases in other jurisdictions dealing with the issue tend to support the City’s position that it is prejudicial error to permit the disclosure of initial employment by the adverse party.

In Shea v. Hillsborough Mills, 78 N. H. 57, 96 A. 293, 294 (1915), a personal injury action where the plaintiff called as a witness someone who had been employed by the other side to examine the plaintiff, the court reversed a judgment for the plaintiff, holding that “[t]he [trial] court therefore erred in permitting the plaintiff to show that the employers of the witness were the . . . defendants, unless his credibility was in issue.” More recently, in Logan v. Chatham County, 113 Ga. App. 491 , 148 S.E.2d 471, 473 (1966), a condemnation case, the court held that the trial, court properly refused to permit the condemnee to bring out the fact that his expert