Arkansas State Highway Comm'n v. Diper

463 S.W.2d 388, 249 Ark. 1145, 1971 Ark. LEXIS 1440

• Court: Supreme Court of Arkansas
• Decided: February 22, 1971
• Docket: 5-5424
• Status: Published

Opinions

Frank Holt, Justice.

In this condemnation proceeding a jury awarded appellees $15,000 for a strip of their land, used for commercial purposes, which was taken by appellant as additional right-of-way for U. S. Highway No. 65 in Damascus. From a judgment on that verdict comes this appeal in which appellant asserts several points for reversal. We first consider the contention that the trial court erred in permitting improper voir dire examination of appellant’s expert witnesses.

In the presentation of their case, appellees adduced expert testimony to verify their claim for damages. In an attempt to prove what it considered to be just compensation, appellant called to the stand Bryan Mc-Arthur, an expert witness as to property valuation. After the usual preliminary questions establishing his qualifications, McArthur was asked by appellant’s counsel if he had an opinion as to the fair market value of appellees’ property. Before this question could be answered, counsel for appellees secured the court’s permission “to ask this witness some questions on voir dire as to his basis of appraisement.” Counsel for appellees then proceeded with a lengthy interrogation of the witness obviously calculated to imply to the jury that his opinion or value testimony (which McArthur had not yet given) was not a product of his independent computation, but one which he had been instructed to arrive at by appellant.

Appellant strenuously objected to this manner of voir dire and eventually moved for a mistrial, but each of its complaints was overruled by the court. Appellant’s second expert witness was subjected, also over vigorous objection, to a similar line of interrogation under the pretext of a voir dire inquiry. We think this irregular procedure constituted prejudicial error. Of course, it is proper for counsel to conduct a voir dire investigation into the competency and qualifications of an expert witness for the opposition; but this prerogative neither comprehends nor sanctions a disruption of the orderly, efficient and long-established method of examining witnesses. See VI Wigmore on Evidence § 1882 (3d ed. 1940); 31 Am. Jur. 2d Expert and Opinion Evidence § 32. Not a >single question propounded by counsel for appellees to witness McArthur and the other expert witness was addressed to a determination of their qualifications as experts. In substance, these interrogations took on the complexion of cross-examinations attacking the credibility of the witnesses before they had even begun to testify as to property value or damages.

We are cognizant of the fact that Ark. Stat. Ann. § 28-704 (Repl. 1962) permits the trial court wide latitude in directing and controlling the examination of a witness. We are equally aware that in certain situations, particularly where multiple, complex issues are involved, confusion can be minimized and justice better served by permitting cross-examination relating exclusively to one fact issue as soon as the direct examination on that particular subject has been concluded. But this was not the case here. The interrogations propounded by counsel for appellees, as noted above, were directed primarily at discrediting testimony which had not as of then been given. This tache was clearly impermissible, and the trial court’s allowance of such unwarranted interruptions of appellant’s orderly examination of its witnesses was an abuse of discretion constituting reversible error.

Appellant also contends that the trial court erred in failing to strike the value testimony of appellees’ expert witness because “in arriving at his value of the property, he considered residential lands in Conway [population 15,510]1 and Russellville [population 11,-750]1 as indicative of the value of the land in question;’’ whereas appellees’ property was admittedly of a commercial nature and located in Damascus [population 255].¹ We must agree with appellant. As we understand it, appellees assert this was permissible because no commercial sales had occurred in this small rural town during the preceding ten years and, therefore, they should be permitted to resort to utilization of residential sales in. minimally developed subdivisions in Conway and Russellville and relate them to sales of residential property located on the highway in the Damascus area in order to establish the commercial value of appellees’ property. When it is necessary to go outside an area for evidence about comparable commercial sales, we observe that the better rule is to restrict the evidence to comparable sales of commercial property in an area or town which has more similarity in nature and size. See, e. g., Arkansas State Highway Comm. v. Witkowski, 236 Ark. 66, 364 S. W. 2d 309 (1963).

We have examined appellant’s two remaining points for reversal and find them to be without merit. However, because of the errors noted above, this judgment is reversed and the cause remanded.

Fogleman, J., concurs in part and dissents in part.

1 1970 Census Report.