HANNAN et al. v. UNITED STATES.
No. 7771.
United States Court of Appeals for the District of Columbia.
Decided June 29, 1942.
Rehearing Denied Aug. 7, 1942.
STEPHENS, Associate Justice, dissenting in part.
Mr. William T. Hannan, of Washington, D. C, for appellants.
Mr. W. Robert Koerner, Attorney, Department of Justice, pro hac vice, by special leave of Court, with whom Norman M. Littell, Assistant Attorney General, and Messrs. Charles R. Denny, Jr., and Alexander H. Bell, Attorneys, Department of Justice, all of Washington, D. C., were on the brief, for appellee.
Before STEPHENS, MILLER and RUTLEDGE, Associate Justices.
MILLER, Associate Justice.
This appeal is from a decree of the District Court in a condemnation proceeding involving the site of the War Department Building in Washington, D. C. The Government contends that, by reason of their failure to move to set aside the verdict and for a new trial, appellants are foreclosed from maintaining this appeal. But this contention cannot be sustained. We held in Walker v. Hazen, that when condemnation proceedings are brought in the name of the District of Columbia such failure bars an appeal. But this result was reached under a section of the Code, pertinent to such proceedings and not pertinent to condemnation proceedings for the acquisition of land in the District for use of the United States. Proceedings of the latter character are governed by entirely different sections of the Code.
In Willis v. United States, we reviewed, historically, the legislation which eventuated in the divergent and mutually exclusive procedures now required to be followed by the two governments. The sections which govern proceedings brought for the use of the United States contain no counterpart of Section 46, which was interpreted in Walker v. Hazen. Such provisions as appear in those sections, concerning motions for new trial and other proceedings after verdict, are permissive; in sharp contrast to the provisions of Section 46. And the only specified condition of appeal is that it shall be by a party aggrieved by a final judgment.
Evidence was offered -to prove the price which was paid by the United States, following negotiation and purchase, for some of the parcels, other than those of appellants, which constitute the site of the new War Department Building in Washington, D. C. The offer was rejected by the District Court. Appellants, relying upon the case of Washington Home for Incurables v. Hazen, assign this ruling as error. Assuming the admissibility of the evidence, it does not appear that its exclusion in the present case was error. In the first place, the burden is upon the party who offers such evidence to establish as a preliminary fact that the purchase, concerning which evidence is offered, was made without compulsion, coercion or compromise. In the present case this was not done. Consequently, appellants are in no position to complain of its exclusion.
In the second place, the reception of such evidence, in each case, calls for the exercise of discretion by the trial court. Wigmore says that the question should be left to the trial court “in its discretion to exclude such evidence when it does involve a confusion of issues, but otherwise to receive it, * * *.” Where the trial judge is vested with large discretion in the admission and exclusion of evidence to the end that the jury may be placed in the best position to pass judgment upon the ultimate question of fact, the manner of his exercise of that.discretion should not be stigmatized as abusive, except for good reason. In the light of the present record we find no such reason here.
The court excluded opinion evidence as to whether the price paid by appellant for one of the lots in issue was reasonable. The evidence related to a sale made fifteen years prior to the commencement of condemnation proceedings. Conditions in the District of Columbia have changed markedly in the intervening period; the record fails to reveal the witness’ qualifications to testify upon the subject or to give other than hearsay testimony. The relevancy of such speculative evidence is doubtful, and there is no reason to question the ruling.
The District Court excluded evidence of an offer to purchase made to the owner by a third person. The consideration offered consisted in part of other property and, consequently, involved collateral issues concerning its value. There was no error in this ruling.
In conclusion it may be noted that evidence of private sales and expert opinion concerning values of property in the vicinity was freely admitted by the trial court. The record shows that the case was fairly presented, to the end that the jury was in the best position to pass judgment upon the ultimate question of fact. Upon careful consideration of appellants’ contentions we conclude that the judgment of the District Court should be affirmed.
Affirmed.
67 App.D.C. 188, 190, 90 F.2d 502, 504, certiorari denied 302 U.S. 723, 58 S.Ct. 44, 82 L.Ed. 559. See also, Shannon & Luehs Const. Co. v. Reichelderfer, 61 App.D.C. 36, 57 F.2d 402.
D.C.Code (1929) tit. 25, § 46.
See Willis v. United States, 69 App. D.C. 129, 131, 99 F.2d 362, 364.
D.C.Code (1929) tit. 25, §§ lOO-llOo.
69 App.D.0. 129, 130, 99 F.2d 362, 363.
D.C.Code (1929) tit. 25, §§ 50 and HOo.
D.C.Code (1929) tit. 25, §§ llOe, f, g.
D.C.Code (1929) tit. 25, § llOi. See also, Federal Rules of Civil Procedure, Rule 46, 28 U.S.C.A. following section 723c.
63 App.D.C. 185, 70 F.2d 847.
See O’Malley v. Commonwealth, 182 Mass. 196, 65 N.E. 30; Eames v. Southern New Hampshire Hydro-Electric Corp., 85 N.H. 379, 159 A. 128. Cf. Albert Hanson Lumber Co., Ltd. v. United States, 261 U.S. 581, 589, 43 S.Ct. 442, 67 L.Ed. 809. Contra: United States ex rel. and for Use of Tennessee Valley Authority v. Bailey, 5 Cir., 115 F.2d 433, 434; United States ex rel. and for Use of Tennessee Valley Authority v. Reynolds, 5 Cir., 115 F.2d 294, 296; Wise v. United States, D.C.W.D.Ky., 38 F .Supp. 130, 134; United States v. Beaty, D.C., W.D.Va., 198 F. 284, 291, reversed on other grounds, 4 Cir., 203 F. 620, writ of error dismissed on procedural ground, 232 U.S. 463, 34 S.Ct. 392, 58 L.Ed. 686; United States v. Freeman, D.C.D.Wash., 113 F. 370, 371. See also, Notes, 32 Col.L.Rev. 1053; 118 A. L.R. 869, 893 ; 43 L.R.A..N.S., 985.
1 Wigmore, Evidence (3d Ed.1940) § 18(E); Kankakee Park Dist. v. Heidenreich, 328 Ill. 198, 204, 159 N.E. 289, 292; Wright v. Commonwealth, 286 Mass. 371, 373, 374, 190 N.E. 593, 594; State Highway Commission v. Buchanan, 175 Miss. 157, 189, 190, 166 So. 537, 538.
Ornstein v. Chesapeake & O. R. Co., Ohio App., 36 N.E.2d 521, S26; Kankakee Park Dist. v. Heidenreich, 328 Ill. 198, 204, 159 N.E. 289, 292; City of Mt. Olive v. Braje, 366 Ill. 132, 136, 7 N.E. 2d 851, 854.
Kankakee Park Dist. v. Heidenreich, 328 Ill. 198, 204, 159 N.E. 289, 292; Wright v. Commonwealth, 286 Mass. 371, 373, 190 N.E. 593, 594.
2 Wigmore, Evidence (3d Ed. 1940) § 463.
Franzen v. Chicago, M. & St. P. Ry. Co., 7 Cir., 278 F. 370; United States v. Nickerson, 1 Cir., 2 F.2d 502. See Washington Home for Incurables v. Hazen, 63 App.D.C. 185, 70 F.2d 847.
Maryland Cas. Co. v. Citizens State Bank, 5 Cir., 84 F.2d 172, 174; Brigham Young Univ. v. Lillywhite, 10 Cir., 118 F.2d 836, 841, 137 A.L.R. 598, cer-tiorari denied 314 U.S. 638, 62 S.Ct. 73, 86 L.Ed. 512; Robinson v. Parker, 11 App.D.C. 132, 138; Washington Times Co. v. Bonner, 66 App.D.C. 280, 290, 86 F.2d 836, 846, 110 A.L.R. 393; District of Columbia v. Chessin, 61 App.D.C. 260, 264, 61 F.2d 523, 527.
Cf. United States v. Freeman, D.C. D.Wash., 113 F. 370.
3 Wigmore, Evidence (3d Ed. 1940) § 718.
3 Wigmore, Evidence (3d Ed. 1940) § 719.
Cf. Hall v. Providence, 45 R.I. 167, 169, 121 A. 66, 67, admitting the testimony of an expert as to the reasonableness of the price paid for improvements on the property taken. But the transaction there was recent. Franzen v. Chicago, M. & St. P. Ry. Co., 7 Cir., 278 F. 370, 373.
Sharp v. United States, 191 U.S. 341, 348 — 350, 24 S.Ct. 114, 48 L.Ed. 211; Jefferson Park District v. Sowinski, 336 Ill. 390, 168 N.E. 370. Cf. Erceg v. Fairbanks Exploration Co., 9 Cir., 95 F. 2d 850, 853, 854, certiorari denied 305 U.S. 615, 59 S.Ct. 74, 83 L.Ed. 392; Notes, 84 L.Ed. 248; 32 Col.L.Rev. 1053, 1058.