Com. Dept. of Highways v. Stephens Estate

• Decision Date: 01 June 1973
• Citation: 502 S.W.2d 71
• Parties: COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Joseph STEPHENS ESTATE et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 71

502 S.W.2d 71

COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Joseph STEPHENS ESTATE et al., Appellees.

Court of Appeals of Kentucky.

June 1, 1973.

Rehearing Denied Sept. 7, 1973.

Carl T. Miller, Jr., Dept. of Highways, Frankfort, Rhodes Bratcher, Bratcher, Cooper & Flaherty, Owensboro, Perry M. Lewis, Madisonville, for appellant.

William E. Rummage, Beard, Rummage & Kamuf, Owensboro, William L. Wilson, Wilson & Wilson, Owensboro, for appellees.

CULLEN, Commissioner.

In this highway condemnation case the Department of Highways appeals from a judgment which awarded the property owners damages of $35,000. In reaching that award the jury fixed the 'before' value of the land at $62,500 and the 'after' value at $27,500. The highest 'after' value attested to by any witness was $26,713, so the jury's 'after' value was about $800 higher than the highest value authorized by the evidence. The Department of Highways made no objection at the time the verdict was returned, but in its motion for a new trial (which was overruled) the department asserted the ground that 'the verdict is not sustained by evidence of a sufficient and probative nature.' We have held that this particular kind of error in a verdict in a condemnation case can be raised by the motion for a new trial. Commonwealth, Department of Highways v. Martin, Ky., 465 S.W.2d 302. While perhaps the error is more accurately to be classified as a failure of the jury to follow the instructions, or a failure of the verdict to conform to the proof, we think the ground as stated in the motion in the instant case was sufficient to raise the error.

The appellant department maintains that the error in the verdict is a ground for reversing the judgment. In examining prior decisions of this court in which the same contention was raised, we find that the rulings have not been consistent, so a reconciliation seems to be in order.

Our most recent previous case on the subject is Commonwealth, Department of Highways v. Milby-Farmer, Inc., Ky., 494 S.W.2d 88, decided one month ago on April 20, 1973. There the verdict first returned by the jury fixed the 'after' value $500 higher than the highest estimate by any witness. Upon motion by the Department of Highways, the jury was sent back to the jury room with directions that its findings must be within the range of the evidence. By reason either of confusion or pure obstinacy, the jury this time fixed the 'after' value $4,000 in excess of that estimated by any witness. The trial court, over objections by the Department of Highways, accepted the second verdict. This court reversed, and in so doing followed the rationale of Commonwealth, Department of Highways v. Doolin, Ky., 411 S.W.2d 44 (1967), noting comparable reasoning in George v. Standard Slag Company, Ky., 431 S.W.2d 711 (where some of multiple verdict for damages from air pollution were less than the evidence warranted and thus were to the benefit of the appealing defendant), and in Commonwealth, Department of Highways v. Farra, Ky., 338 S.W.2d 696 (where the jury in a pre-Sherrod condemnation case awarded damages to the remainder but no damages for the land taken).

Attention was not called, however, in Milby-Farmer to Witbeck v. Big Rivers Rural Electric Cooperative Corporation, Ky., 412 S.W.2d 265 (1967) (decided three months after Doolin); Commonwealth Department of Highways v. Gossett, Ky., 433 S.W.2d 344 (1968); and Commonwealth, Department of Highways v. Crawford, Ky., 473 S.W.2d 153 (1971). In each of those cases an error in the verdict in that the 'after' value did not conform to the proof was held not to be a ground for reversal on an appeal by the party who was mathematically favored by the error.

In Witbeck a 'Cf.' citationw as made to Doolin, but the apparent conflict in holdings was not recognized. Gossett cited and followed Witbeck, and made no mention of Doolin. In Crawford, reference was made to Gossett, Witbeck and Doolin, and an effort was made at reconciliation by treating Doolin as standing only for the proposition that an error of the kind here in question 'may be a factor in support of the argument that the jury disregarded the instructions and reached into 'thin air' for a significant part of the verdict,' thus suggesting that the error standing alone would not be a...