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State Highway Commissioner v. National Fireproofing Corp.

Decided: October 20, 1941.


In condemnation on appeal.

For the appellant, David T. Wilentz, Attorney-General; William A. O'Brien, counsel to the State Highway Commissioner; William J. McCormack, assistant counsel to the State Highway Commissioner, and John E. Toolan, attorney for the State Highway Commissioner.

For the respondent, Fred W. De Voe.


The opinion of the court was delivered by

BROGAN, CHIEF JUSTICE. The State Highway Commissioner appeals from a judgment held by the respondent land owner, National Fireproofing Corporation, representing the damage done respondent for lands taken by the state for public purposes. The respondent operated two plants in Middlesex County for the manufacture of hollow tile. Its lands contain the clay used in this operation. About thirty acres of these lands were appropriated for public use.

All the grounds of appeal challenge the action of the court in ruling on questions of evidence and are argued under eight headings. Under the first heading the argument is that the expert opinion of Messrs. McHose and Ryan (witnesses for land owner) was based upon an erroneous theory of damages, incorrect assumptions of fact, and a "formula" that had no legal basis. An objection first was entered to the qualifications of Mr. McHose. The court was right in overruling the objection. Whether a witness be expert is a matter for the court to determine and, if there was any evidence to justify the court's view that the witness was expert, error may not be assigned for such ruling by the trial judge. Ross v. Commissioners of Palisade Interstate Park, 90 N.J.L. 461, 464; Brown v. New Jersey Short Line Railroad Co., 76 Id. 795, 797. It is also argued that error resulted from the court's refusal to strike out the testimony of this witness. The reason for the motion to strike out his testimony is not stated in the record. We gather, however, that the appellant believed, at that juncture, that the value of the land under consideration, as stated by the witness, was based upon only one sale (McClees' land) and, further, that the quality of the clay land in these tracts was not comparable. Before ruling on the motion the learned trial judge asked the witness if other sales had not been considered by him as factors in arriving at his conclusion. The witness stated that the other sales that had been discussed in his testimony had been considered by him in arriving at his value of the lands in question. That being so, there was no basis for striking out his testimony.

The objections to the qualifications of the expert witness, Ryan, were likewise properly overruled. Ross v. Commissioners

of Palisade Interstate Park, supra; Brown v. Short Line Railroad Co., supra. The appellant's brief concedes that both McHose and Ryan "were practical clay miners." It is also said that it was error to deny motion to strike out Mr. Ryan's testimony. We find no error here. The witness, a man of much experience in working "clay lands," plainly stated that he valued the property as clay lands. This is what they were. He had been interested all his adult life in such lands and his testimony was, in our judgment, competent. The motion to strike out this testimony was based on the theory that the witness arrived at the value of the land by assuming a removal and sale of the clay it contained. But when the witness, in answer to a question from the court, said that he valued the land as clay land and took its "quality" into consideration, it became clear that his appraisal rested on the legitimate factors present in the tract.

Throughout the argument under this heading it is constantly stressed that there is no basis in law for the "McHose formula." It should be understood that this witness did not put forth his theory as a formula. He merely explained how he computed the value of the land and opposing counsel called the method "the McHose formula." Whether his theory was tenable was a matter to be thoroughly sounded on cross-examination. If his method of arriving at value was bizarre or untenable (and we do not intimate that it was), complete opportunity was available to uncover those infirmities. All of this, however, was a matter for cross-examination, counter-proof and argument to the jury. How the witness arrived at his conclusions was something incidental to and part of his evidence. Its worthiness as evidence and not its competency was the issue. The matter was one of fact. Before leaving the point, it should be noted that there was no objection to the McHose method of computation as such. Counsel for the appellant, by a thorough cross-examination, attempted to undermine the opinion of the witness as to valuation and dissipate its effect. Perhaps he succeeded. We have no way of knowing whether the jury accepted the land value stated by this witness. All that the argument of the appellant under this point amounts to is that the damages found by the jury

were too high. This matter was argued before the court below on rule to show cause and the discharge of the rule makes manifest the fact that the trial court did not agree with the appellant on this phase of the case.

Under the second point it is argued that the witness, McHose, based his calculations on a "formula" which "departed from the facts assumed in the hypothetical question addressed to him on direct examination." The so-called hypothetical question is not pointed out in the brief. We find a line of questions intended to support the witness' valuations. The complaint seems to be that the witness took into consideration the availability of the land for shipping by water. This factor was entirely proper to consider in computing value. Ringwood Co. v. ...

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