State v. McGill , 79 Idaho 467 ( 1958 )

McQUADE, Justice.

Upon the failure of the parties hereto to agree as to damages for the taking of land by the State- of Idaho for a State highway project, an action was commenced to condemn the property and to determine the amount of damages due appellants. To the complaint, appellants filed an answer admitting all respondents’ allegations excepting one paragraph of the complaint which for all ostensible purposes set up the good faith of the condemner and that it was' impossible to make a reasonable bargain as to damages for taking of the property.

At the commencement of the trial of the case, the appellants admitted the allegations of the one remaining paragraph of the complaint, leaving only the issue of damages for the purpose of the trial. When the trial was begun, it was agreed between the parties that respondents would put on their proof first, to be followed by appellants’ proof. The proof introduced by the respondents went to all material issues of the complaint, including the value of the land being taken, whereas the proof of the appellants went to the value of the property taken and the resulting damage to the remainder of appellants’ property. Both at the commencement of the trial and before the arguments, appellants’ attorney moved the Court for permission to open and close the argument. At both times the trial court denied the motion. It is from this ruling that appellants have taken their appeal, and this ruling is assigned as the sole question of error.

Our statute setting forth the procedure for civil cases tried before a jury is I.C. § 10-206, which is as follows:

“When the jury has been sworn, the trial must proceed in the following order unless the judge for special reasons otherwise directs:

“1. The plaintiff, after stating the issue and his case, must produce the evidence on his part.

“2. The defendant may then open his defense and offer his evidence in support thereof.

“3. The parties may then respectively offer rebutting evidence only unless the court, for good reasons, in furtherance of justice, permits them to offer evidence upon their original case.

“4. When the evidence is concluded and before the case is argued or submitted to the jury, either party may request the court to give to the jury instructions in writing on the law arising in the cause which shall be given or refused as asked: provided, that the court may also give other and further written instructions of its own motion. All of the written instructions given shall be carried by the jury to their room for their guidance in arriving at a correct verdict according to the law and evidence. The instructions shall then be read to the jury by the court, and unless the case is submitted to the jury without argument, the plaintiff must commence and may conclude the argument. * * * ”

Appellants argue that all material issues of the plaintiffs’ complaint were admitted, and the only issue left was one of damages, and further, that the defendants had the burden of proof in establishing the amount of damages. The question as to the burden of proof pertaining to damages in a condemnation suit has been settled in State ex rel. Rich v. Dunclick, Inc., 77 Idaho 45, 286 P.2d 1112, 1117:

“ * * * The burden of proving the amount of damages sustained, i. e., the value of the land taken and resultant damage to the remainder, must be borne by appellants [condemnees]. * * *»

See also Village of Lapwai v. Alligier, 69 Idaho 397, 207 P.2d 1025.

Under our statute, I.C. § 10-206, the trial court is given discretion “for special reasons” to vary the order of trial, and appellants cite Grisinger v. Hubbard, 21 Idaho 469, 122 P. 853, to support their contention that because they had the burden of proving the question of damages reversible error was committed by the trial court’s denying their motion. In approving part of the general rule as set out in Brunswick & W. R. Co. v. Wiggins, 113 Ga. 842, 39 S.E. 551, 61 L.R.A. 513, this Court quoted the following excerpt in Grisinger v. Hubbard, supra [21 Idaho 469, 122 P. 856]:

“* * * ‘That the burden of proof, with its incident right to open and close, naturally and necessarily is, in the first instance, with the plaintiff or party who initiates the action, suit, or proceeding, and remains with such party so long as it continues incumbent upon him to make any proof whatever. That when the defendant, either by an admission in express and absolute terms, or by refraining from denial of plaintiff’s cause of action and alleging affirmative matter in avoidance of it, renders it wholly unnecessary for the plaintiff to give any evidence whatever to have a complete recovery of all that he claims, the burden and right are with the defendant.’ ”

Another Idaho case, American Surety Co. of New York v. Blake, 54 Idaho 1, 27 P.2d 972, 91 A.L.R. 153, states that this Court recognizes the rule that under certain circumstances, for special reasons, the trial court has the right to change the order of proof.

However, the problem presented here is not one of varying the order of proof, but rather varying the order of argument. It seems all too clear that although no Idaho case specifically requires the district judge to vary the order of argument, there is ample authority recognizing the discretion.

To come to grips with the ultimate problem, we must determine whether the trial court committed error by refusing to change the order of argument, under the facts of this case. Although the better procedure in a case such as this is to allow the defendant to open and close, we cannot say reversible error was committed by the trial court’s refusal to follow such procedure, and especially so in view of the stipulation by the appellants that the respondents should proceed with the presentation of proof when no proof was required.

In 5 Nichols on Eminent Domain, Third Edition, sec. 18.5(2), pp. 205-207, the conflict of the decisions is summed up:

“The general rule is that the right to open and close goes to the one on whom the burden of proof lies in the first instance — upon the party who would suffer defeat if no evidence should be given on either side. It consequently follows from what has been already stated that the owner should have the right to open and close, and this is generally the law. The failure of the trial court to follow this rule is not, however, necessarily ground for setting aside the verdict if it does not appear that the owner was harmed. In some jurisdictions it is held that the right to open and close rests in the discretion of the trial court, while in several other states the fact that the condemnor is petitioner or plaintiff on the record in the whole case has led the courts to give that party the right to open and close, even on the issue of damages.”

The judgment is hereby affirmed.

Costs to appellants.

PORTER and TAYLOR, JJ., concur.