Com., by State Highway Com'n v. Begley

• Decision Date: 20 December 1935
• Citation: 261 Ky. 812,88 S.W.2d 920
• Parties: COMMONWEALTH, by STATE HIGHWAY COMMISSION, v. BEGLEY et al.
• Court: Kentucky Court of Appeals

88 S.W.2d 920

261 Ky. 812

COMMONWEALTH, by STATE HIGHWAY COMMISSION, v. BEGLEY et al.

Court of Appeals of Kentucky

December 20, 1935

Appeal from Circuit Court, Perry County.

Condemnation proceedings by the Commonwealth, by its State Highway Commission, etc., against John X. Begley and another. From the judgment, the Commonwealth appeals.

Reversed with directions.

John E Campbell, of Hazard, for appellant.

THOMAS Justice.

The state highway commission, by this action filed in the Perry county court, sought to condemn for highway purposes a strip of land 20 feet wide off one end of a lot in Hazard, Ky. upon which stood a five-room one story frame residence, and which was the property of Mrs. John X. Begley, one of the appellees and defendants below, the other one being her husband, John X. Begley. The Commissioners appointed by the county court fixed the damages at a total sum of $750, and after being summoned on that report, defendants filed exceptions thereto claiming that they were entitled to a much larger sum. A trial before a jury in that court resulted in a verdict in favor of defendants for the sum of $800, and from it they prosecuted an appeal to the Perry circuit court wherein they obtained a verdict for $1,500, followed by plaintiff's motion for a new trial which was overruled, and from that order and the judgment pronounced on the verdict, plaintiff prosecutes this appeal.

But two arguments are made in brief of appellant's counsel as grounds for reversing the judgment, and they are: (1) The admission of incompetent evidence offered by defendants over plaintiff's objections, and rejection of competent evidence offered by plaintiff, and (2) that the verdict is excessive. No argument in criticism of any of the instructions of the court to the jury is made in brief although in the motion for a new trial one of the grounds therefor was that "the court gave the jury improper instructions." However, neither the record nor the bill of exceptions disclose any objections made to any of the instructions submitted to the jury, and for which reasons we are precluded from considering them. The same is true with the other grounds contained in the motion for a new trial (excluding the two argued ones, supra), since it is a prevailing rule in this court to treat the silence of counsel with reference thereto as an abandonment of them. We will therefore, confine our discussion to grounds (1) and (2) supra, the latter of which is so dependent upon the first one that we have concluded to discuss them together.

The incompetent testimony admitted over plaintiff's objections and exceptions, of which complaint is made in the first part of ground (1), consisted in the court disallowing plaintiff's witnesses to testify as to the value of a similar dwelling which was located in another part of the town of Hazard, and we will dispose of it without further discussion by saying that we think the court correctly ruled in rejecting it, although it properly admitted similar evidence relating to property located in the same vicinity of that of defendant, which was sought to be condemned in this case. Mrs. Begley, and perhaps other witnesses, testified as to the value of her house and lot at the time it was condemned, but without stating any facts upon which they based their estimates and some, if not all of them, showed that they were unfamiliar with the value of such property, and for which reason it is quite probable that as so given that testimony was improper. See Springfield Fire & Marine Insurance Co. v. Ramey, 245 Ky. 367, 53 S.W.2d 560. However, for the reasons stated, we will not further pursue that question.

The case was more or less carelessly prepared. It is not shown anywhere in the record the size of the lot upon which defendants' residence stood, but it does appear that the latter was a frame building erected out of second class lumber, containing five rooms with a tin roof, and that it was constructed somewhere between 1915 and 1918. We know of no better way of picturing its condition at the time it was appropriated than to insert the testimony of one of the only three witnesses who described it, and whose testimony is not contradicted by any one. That testimony, as given by that witness, was and is: "It was an all-ceiled house; three of the rooms had been papered and the rest of them had been painted on the inside, just one coat, is the way it looked to me and the floors were all in bad condition, they were built of number two material; the whole house was built of number two material, except the weather-boarding, it looked very well. The house was in very good condition but it was out of plumb, it ran three-fourths of an inch to four feet, and there was a number of window-lights broken out; the doors was in bad condition, no locks on the doors at all, that is, not good for anything, no knobs on most of them; no screens on the windows and no lights in the house. It was wired for electric lights but the electricity wasn't cut on. There was a sink in the...