Chambers v. Bradley County

• Decision Date: 14 May 1964
• Citation: 53 Tenn.App. 455,384 S.W.2d 43
• Parties: Mervin CHAMBERS et al. v. BRADLEY COUNTY. 53 Tenn.App. 455, 384 S.W.2d 43
• Court: Tennessee Court of Appeals

Page 43

384 S.W.2d 43

Mervin CHAMBERS et al. v. BRADLEY COUNTY.

53 Tenn.App. 455, 384 S.W.2d 43

Court of Appeals of Tennessee, Eastern Section.

May 14, 1964.

Certiorari Denied by Supreme Court Sept. 4, 1964.

[53 TENNAPP 456] John S. Wrinkle, Chattanooga, for plaintiffs in error.

James G. Nave, Cleveland, for defendant in error.

[53 TENNAPP 457] McAMIS, Presiding Judge.

Bradley County brought this action to acquire a portion of certain lands owned by defendants Mervin Chambers et al. as a right of way for a State Highway by-passing the business and residental districts of the City of Cleveland. The petition describes by metes and bounds that portion of defendants' lands sought to be condemned as previously staked out by the State Department of Highways. In the petition filed by the County the land to be acquired is designated as Tracts 1 to 4, inclusive.

At the beginning of the trial in the Circuit Court, Judge Oliver, without objection from either party, directed counsel, in presenting the case to the jury, to treat defendants' property as being divided into two tracts rather than four, Tract 1 being all of defendants' property north of Old Mouse Creek Road and Tract 2 that portion lying south of that road. The two tracts were so designated on a map which the parties stipulated correctly represented lands of defendants and the portions sought to be condemned by the County.

All of the proof as to values and incidental damages throughout the trial referred to these two tracts as designated on the above mentioned map.

The jury returned the following verdict:

                Tract One
                Value of 2.78 acres taken ............. $9,174.00
                Incidental damages to the remaining
                2.09 acres of Tract One ................ 2,800.00
                Tract Two
                Value of 7.83 acres taken ............. 26,400.00
                Incidental damages to the remaining
                11.48 acres of Tract Two ............... 2,702.50
                                                       ----------
                                Total ................ $41,076.50
                

[53 TENNAPP 458] Defendants have appealed claiming the amount awarded is grossly inadequate and have assigned errors, none of which complains of the admission or rejection of evidence and only one of which complains of the charge to the jury.

The first assignment complains because the Court refused to allow defendants' counsel on voir dire to propound to the prospective jurors the following question:

'If the proof in this cause should show that the value of the land taken, combined with the incidental damages to the remaining land, less the incidental benefits, if any, with the law applied as charged by the court, would entitle the Chambers' heirs, the defendants, to some $75,000.00 to $125,000.00, or even more, would the size of such a sum cause you any hesitancy in returning a verdict for the defendants in the amount of $75,000.00 to $125,000.00, or even more, as the proof and the law might require?'

The Court refused to permit counsel to ask this question on the ground that the jurors might construe an affirmative answer as a commitment to render a large verdict.

Generally, a prospective juror may be examined for the purpose of showing that he is biased or prejudiced. Hypothetical questions substantially outlining the proof to be introduced are improper as tending to exact a pledge from the juror, but questions which seek only to ascertain that the juror's mind is free of previously [53 TENNAPP 459] formed convictions are proper. Smith v. State, 205 Tenn. 502, 327 S.W.2d 308; Atlanta Joint Terminal v. Knight, 98 Ga.App. 482, 106 S.E.2d 417, 79 A.L.R.2d 539; 31 Am.Jur. 123, Jury Section 141.

Generally, the scope of inquiry on voir dire rests within the sound discretion of the trial court. Kennedy v. State, 186 Tenn. 310, 210 S.W.2d 132. In this case, the question propounded might well have been held by the trial court to go beyond proper inquiry. Any juror would naturally answer the question in the affirmative and might thereafter feel under a pledge to return a large verdict. We think the Court properly excluded it. Certainly, there was no abuse of discretion.

Assignment two complains of the action of the Court mentioned at the outset of this opinion in departing from the description of that portion of the property to be taken, described in the pleadings as comprising four tracts, and directing that the four tracts be consolidated and combined into two tracts, one on the north side of Old Mouse Creek Road and the other on the south of that road.

Old Mouse Creek Road runs east-west through defendants' property the remnants of which had been designated on the map above mentioned as Tracts A, B, C, D, E, F and G. Because of the location of Old Mouse Creek Road defendants' property was naturally divided into two tracts. It would have been difficult for the jury to fix the value of seven separate tracts and the incidental damage or benefit to each. We think the Court acted properly in dividing the property as it existed before the taking into two tracts. In any event, having made no objection to this action and acquiesced in it [53 TENNAPP 460] throughout the lengthy trial, defendants can not now complain.

The third assignment is that 'the verdict of the jury is so insufficient in amount as to show...