State Roads Commission v. Creswell

Marbury, J., delivered the opinion of the Court. The appellant condemned 16.191 acres of a 28.9 acre parcel of land owned by the appellee Eva B. Creswell, which was involved in the construction of a portion of the Northeastern Expressway, a denied access, four lane divided highway. The interest of the County Commissioners for Cecil County, the other party defendant for tax purposes only, will be disregarded for the purposes of this appeal. The amount of land required and the necessity of the acquisition were agreed to by the parties.

The sole issue for the jury’s determination was that of damages. The jury viewed the property and heard testimony by four real estate appraisers, two to a side, three engineers, the property owner and an employee in the design department of ²²⁴ the consulting engineers on the highway project. The jury thereafter returned its inquisition awarding Mrs. Creswell the sum of $56,668. Although not in the order in which counsel presented them in the briefs and oral argument, these five contentions are raised by the appellant who attempts to set aside the award claiming that the trial court erred in: I, refusing to grant appellant’s motion to exclude witnesses; II, denying motions to strike the testimony of the appellee’s valuation witnesses after it had been established that they were not among those excepted from the witness exclusion rule; III, permitting Joesting, appraiser for appellee, to testify as to geological aspects of the subject property; IV, refusing to grant motions to strike the testimony of Burkley, appraiser for appellee, for the reason that his opinion was based upon an improper measure of damages; and V, admitting evidence of the quantity of gravel in the absence of a showing that the presence of such mineral deposit added value to the property. / and II At the outset of the trial, counsel for the appellant made a motion to exclude the witnesses in accordance with Maryland Rule 546.

That rule states that the court shall, upon the request of a party, order witnesses other than a party excluded from the courtroom until called to testify. The rule provides, however, that an expert witness who is to render an opinion based on the testimony given at the trial is excepted. There was an extended colloquy between the court and counsel and argument by both counsel on the motion. A portion of the colloquy is as follows: “Court: Let me ask you [defense counsel] a question please: These expert witnesses who are to render opinions, will their opinions be based on the testimony which will be given at the trial ? “Mr. Calvert: Yes, your Honor.

I understand Mr. Lehmann [counsel for the condemnor] moved for the exclusion of the witnesses. “Court: He did. ²²⁵ “Mr. Calvert: * * * Needless to say, the value that our real estate experts are going to place on this property is going to be based in part upon the testimony which is given by engineers in this case. So that actually one stands upon the other, so to speak. “Court: On both sides ? “Mr. Calvert: I think that is correct, your Honor. % >!« “Court: On the assurance of counsel that the expert testimony of his witnesses will be based on testimony which will be heard at the trial, and produced on the part of the State, and I assume also engineering or geological experts of the defendant who will precede the real estate experts, under those circumstances, gentlemen, I don’t see how I could properly exclude such witnesses under this rule. * * *” The appellant seems to accept the proposition that a real estate appraiser is an expert witness, and we have so recognized, usually sub silentio. See e.g., State Roads Com. of Md. v. Novosel, 203 Md. 619 , 102 A. 2d 563 . The contention is that appraisers should not be regarded as expert witnesses within the meaning of the rule.

Appellant urges that the valuation of property is something the appraiser gains for the most part from information received, not by testimony of others at the trial, but by observation of the property, prior comparable sales, etc. It argues that the engineering data which was testified to at the trial was only a small portion of the sum total of facts and factors necessary to determine the value, and that furthermore, this information could have been made available through pretrial procedure. To buttress this argument appellant further contends that it was established on cross-examination that the opinion of neither of appellee’s appraisers, Burkley or Joesting, depended upon any preceding testimony, and therefore the motions to strike their testimony should have been granted. The validity of this is questionable in light of other testimony of both appraisers that if examination of witness Richardson, the appellee’s engineer, had resulted in a substantial change in his tests and find ²²⁶ ings reported to them prior to trial, their respective appraisals would necessarily have been different. It is true, on the other hand, that both admitted on cross-examination that Richardson’s testimony in fact did not cause them to alter their valuations.

Of course the trial judge had no means of knowing this at the time the motion to exclude the witnesses was offered. Rule 546 was adopted in September 1961 as the civil counterpart of the sequestration rule for criminal causes, Rule 753, which has been construed by us on several occasions. In Bulluck v. State, 219 Md. 67 , 148 A. 2d 433 , we stated the purpose of the rule (then Rule 737) to be to prevent witnesses from being “taught or prompted” by each other’s testimony. We have held that even though the rule is now mandatory upon the trial court where the exception is not applicable, violation of the rule is not per se reversible error.

Even in criminal cases where an allegation of deprivation of the defendant’s rights is always closely scrutinized, we have required a showing of prejudice to those rights. Swift v. State, 224 Md. 300 , 167 A. 2d 762 ; Breeding v. State, 220 Md. 193 , 151 A. 2d 743 ; Bulluck v. State, supra. Assuming without deciding that real estate appraisers do not come within the exception to the rule requiring sequestration of witnesses, nevertheless we are unable to find any prejudicial error in this case. Counsel for Mrs. Creswell, defendant below, put her on first.

She was followed by two engineers, Richardson and Webb. Her two real estate appraisers, Burkley and Joesting, then followed and respectively placed the damages at $163,200 and $150,825. The highest estimated damages of appellant’s appraisers was $14,398. Obviously Burkley and Joesting were not “taught or prompted” by appellant’s witnesses, nor was Joesting apparently swayed by the testimony of Burkley, his predecessor on the witness stand, whose estimate exceeded Joesting’s by more than $12,000.

Furthermore, we think the motions to strike the entire testimony of both appraisers were directed to grounds other than that stated in contention II. As to Burkley’s testimony, the reason given was that it did not have “any basis or bearing for his land valuation of $10,100 an acre, or whatever it was.” No ²²⁷ reason was given in support of the motion to strike Joesting’s testimony, but it was obviously done in connection with contention III. Ill While explaining how he approached his valuation of the property, Joesting testified at some length as to certain geological aspects of the property. He had found the gravel present to be a type known as Bryn Mawr, and he was explaining its formation as he understood it to he.

At the commencement of this geological explanation and at its conclusion, appellant objected on the ground that Joesting was not a qualified geologist. The objection was overruled by the court, and appellant here contends the ruling was reversible error. There are several answers to this contention. One is that though counsel for appellant