BOARD OF ED. OF SOUTH SANPETE, ETC. v. Barton

CROCKETT, Chief Justice

(dissenting).

I am in agreement with the main opinion, except as to the manner in which it deals with the trial court’s handling of the matter relating to possible testimony of Mr. Dee Ogden. He appears to have made an appraisal at the instance of the plaintiff, but was not called as a witness. Pursuant to a discussion of the matter in the absence of the jury, plaintiff requested the court to rule that defendant could not elicit that fact before the jury. As will be noted in the statement quoted in the main opinion, the court told defendant’s counsel:

You can call him for an appraisal, but not to give testimony that he was employed by the school district. [Emphasis added.]

In regard to the charge of error, I make several observations. The first is that I offer no defense of any notion that an expert cannot be asked who hired him. It is to be conceded that such a witness may be examined as to who employed him, and who is paying him, as having a possible bearing upon his motivation and his credibility.¹ Nor is it to be doubted that a trial court should be quite liberal in allowing any competent evidence offered by a party to prove his case.

In regard to the evidence in question, it is my impression from the record that the trial court simply rejected the idea that Mr. Ogden could be called solely for the purpose of showing that he had been hired by the plaintiff School Board to make an appraisal and that the Board then failed to call him as its witness. It is significant to note that defendant’s counsel did not pursue the matter and make plain to the trial court what he was proposing; and that he did not in any manner indicate what Mr. Ogden’s testimony would be.² Therefore, any question as to the latter’s credibility was never placed in issue; and more importantly, there is no basis upon which to determine whether the trial court’s statement had any prejudicial effect upon the defendant’s case.

I think the trial court was justified in its view that each side had a full and fair opportunity to present its evidence, including that the experts for each side had sufficiently presented their respective views as to value to the jury to enable it to make a fair determination on that issue. When that procedure has been accomplished, and the trial judge has also placed his stamp of approval upon the verdict by denying the motion for a new trial, this Court on review should indulge the verdict and the judgment with the presumptions of verity; and should not disturb it unless it is shown that there is substantial error in whose absence there is a reasonable likelihood that there would have been a different result.³

Upon the basis of the record, I am not persuaded that there was any such error or unfairness as to justify upsetting the verdict and judgment.

1 . See 31 Am.Jur.2d, Expert and Opinion Evidence, § 50; and authorities cited in the main opinion.

2 . That a proponent of evidence must make some such offer or indication of the substance of evidence, see Rule 5, Utah Rules of Evidence.

3 . See Rule 61, U.R.C.P.; Eager v. Willis, 17 Utah 2d 314, 410 P.2d 1003 (1966).