Bennett v. Jacksonville Expressway Authority, 30990

• Citation: 131 So.2d 740
• Decision Date: 28 June 1961
• Docket Number: No. 30990,30990
• Parties: Florence Vivian BENNETT et al., Petitioners, v. JACKSONVILLE EXPRESSWAY AUTHORITY, a corporate agency of the State of Florida, Respondent.
• Court: United States State Supreme Court of Florida

Page 740

131 So.2d 740

Florence Vivian BENNETT et al., Petitioners, v. JACKSONVILLE EXPRESSWAY AUTHORITY, a corporate agency of the State of Florida, Respondent.

No. 30990.

Supreme Court of Florida.

June 28, 1961.

Rehearing Denied July 24, 1961.

Walter G. Arnold and Bedell, Bedell & Dittmar, Jacksonville, for petitioners.

David W. Foerster, Jacksonville, for respondent.

THOMAS, Chief Justice.

The petition for certiorari was based on the claim that there was a direct conflict of the decision of the District Court of Appeal, First District, which reviewed the judgment of the Circuit Court of Duval County in a condemnation action, with the decision of this court in the case of Cloud v. Fallis, Fla., 110 So.2d 669. The present procedure is authorized by the provisions of Sec. 4, Art. V, of the Constitution as amended, effective 6 November 1956, F.S.A.

Several months prior to the trial the respondent had acquired two tracts of land under the provisions of Chapter 74 of the Florida Statutes, F.S.A., preliminary to the exercise of its power of eminent domain. In furtherance of its plan the respondent secured the services of two professional appraisers to fix the value of the land to be taken and the amount of the damage to the adjoining property. Eventually one of these appraisers set the total amount of value and damage relevant to one tract at $74,175 but evaded a reply about the value and damage with reference to the other tract. However, the declaration of taking contained the assertion that just compensation for the tracts, respectively, would be $40,300 and $72,750.

Next, the court appointed an appraiser who reported that in his opinion the sum of the value of the first tract and damage would be $47,755, and of the second $74,210. Then the court entered an order that upon deposits of twice these amounts the petitioner, respondent here, should possess a fee simple interest in the properties for the purposes detailed in the original opinion not necessary to be delineated here.

Later, upon petition of the owner of the more valuable tract, the court ordered paid to her the sum of $60,000. After a futile attempt by this owner to take the deposition of the persons thought by her to have made the appraisals for the respondent, and after the court granted permission to the respondent to amend both its original petition for condemnation and declaration in order more accurately to describe the property affected, the respondent represented in the amendments the amounts required for full compensation to be $40,300 and $70,850 respectively.

Upon the cause proceeding to trial, the respondent produced the second one of its appraisers who then testified that full compensation for the first parcel would be $27,000 and for the second parcel $51,500. At that point, according to petitioner's witness, the compensation should be reduced in the one case $13,300 and in the other case $21,250 below the figures stated in the original declaration which had been substantially repeated in the second, or amended declaration, and, of course, the variation in the figures, related to both tracts, materially changed the range of the estimates with which the jury had to deal.

A witness for petitioners testified to the opinion that the value of Parcel No. 1 was $64,300 and the value of Parcel No. 2, $129,620.

This, roughly, was the situation when the jury returned verdicts for $30,116 for the taking of the one tract and $57,970 for the taking of the other, and it is believed the information will suffice as a background for the ultimate question, i. e., was the judge justified in granting the motion for new trial? It is significant that the amount of compensation for the second tract was $2,030 less than the sum received by the owner under the order of distribution.

A cursory examination of the observations of the circuit judge gives the impression that they were self-contradictory, but a close study of them confirms the view that they were harmonious, and that he was acting well within his power when he granted the motion for new trial by an order subsequently reversed by the District Court of Appeal, First District.

In his order the learned circuit judge, who had sat throughout the trial and who had conducted the proceedings preliminary to the trial, referred to the original appraisals on the bases of which the deposits had been made and on the strength of one of which the sum of $60,000 had been paid to one of the owners, a sum considerably in excess of the amount awarded by the jury. He recalled that upon amendment of the declaration there had been no appreciable change in the figures. In parallel columns he set out the appraisals of petitioners, the testimony of petitioner's and owner's experts, and the verdicts which demonstrated the disparities among the estimates presented by the parties and those accepted by the jury.

The judge stated that the verdict of $30,116, was within the range of $27,000 and $64,300, and the verdict of $57,970 was within the range of $51,500 and $129,620, which is obvious, though it should be remembered that the ranges were tardily disturbed by the introduction on respondent's part of evidence reducing the values from $40,300 to $27,000 and from $72,750 to $51,500. The judge commented that 'the trial was as free from error as it could be' and that the jurors were not improperly motivated or influenced but he also said that the verdict was 'nevertheless shocking to the court * * *.' (Italics supplied.) He had much the advantage in his acquaintance, first-hand, with the trial, and when he became 'shocked' by the outcome he was, in the opinion of this writer, conscience-bound to do exactly what he did, namely, grant a new trial. After all the owners' properties were being taken from them for public use and this cannot be done except full compensation is forthcoming under the fundamental safeguard found in both the State and Federal Constitutions, a protection the judge was duty-bound to secure to them.

A judge may struggle to conduct a trial that is fair and just and be certain in his mind that this has been accomplished yet become 'shocked' in the end by the concluding verdict.

That the judge suffered 'shock' not from any incident during the trial but from the amounts read from the verdicts is clear from the provisions of his order for he announced that the verdicts would fall unless by additur the amounts stated in them were raised to the exact amounts named in the original declaration and substantially repeated in the amended declaration.

Plainly, then, the trial judge felt that he could not condone the condemning authority's making representations as to values, taking owners' properties away--and beyond recovery--making no effort in the amended declaration to correct any errors as to values that had been discovered, and introducing in the trial testimony creating the material disparities.

It is true that there is a provision in Sec. 74.09, Florida Statutes 1957, F.S.A that the declaration of taking, amount of deposit and report of court appointed appraisers are not admissible in evidence or accessible to the jury but it is equally true that they were matters with which the judge was necessarily familiar, and he could well consider them when, as he reviewed the whole case in his own mind he determined whether or not he should approve the verdicts. Furthermore, he was weighing the rights of owners guaranteed by Sec. 12, Declaration of Rights of the Constitution of Florida, F.S.A., and Amendment V of the Constitution of the United States, against a rule of evidence established by legislative act.

The District Court of Appeal, First District, decided that the circuit judge was not 'justified in concluding that his judicial conscience was shocked' but it seems to us that such a conclusion would be a bit difficult to draw from cold type inasmuch as conscience is the 'ideas and feelings within a person that warn him of what is wrong.' Thorndike-Barnhart Dictionary. It has also been variously defined as 'inward knowledge, consciousness; inmost thought, mind * * * consciousness of right or wrong; moral sense.' The Oxford English Dictionary.

In the opinion of the District Court of Appeal, First District, appears the phrase which had crept into the law with reference to the decision of motions for new trial when we in Cloud v. Fallis, supra, attempted to rescue from oblivion the rule that such matters were within the sound judicial discretion of the trial judge and were not to be gauged by the presence or absence of competent 'substantial evidence.' In the decision in the instant case we find this sentence: 'The verdict in each instance was within the limits of the evidence and is supported by substantial competent evidence.' Following is this language:

'The trial court should set aside a jury verdict only when it is apparent that it is not supported by substantial evidence in the record, or when it is apparent that the jury was influenced by prejudice, bias or other improper influence.' (Italics supplied.)

We turn now to Cloud v. Fallis, supra, to see if there is complete harmony between that decision and the one of the District Court of Appeal in the instant case on the pivotal question of the rule which should guide a trial court in the determination of motions for new trial.

We observed in the cited case that there was brought into focus the question whether the so-called "broad discretion' rule' or the so-called "substantial evidence' rule' should obtain in judging the correctness of a ruling on a motion for new trial.

After discussing a few decisions appearing to adhere to the 'substantial competent evidence rule,' including Hart v. Held, 149 Fla. 33, 5 So.2d 878, cited by the District Court of Appeal, First District, in the present case, we announced, unequivocally we thought, adherence 'to the early rule placing in trial courts broad discretion of such firmness that it [the ruling]...