Connor v. State Dept. of Roads

• Citation: 175 Neb. 140,120 N.W.2d 916
• Decision Date: 05 April 1963
• Docket Number: No. 35345,35345
• Parties: Leone M. CONNOR, Donald C. Connor, Francis Connor and Marjorie Connor, Appellants, v. STATE of Nebraska, DEPARTMENT OF ROADS, Appellee.
• Court: Supreme Court of Nebraska

Page 916

120 N.W.2d 916

175 Neb. 140

Leone M. CONNOR, Donald C. Connor, Francis Connor and Marjorie Connor, Appellants, v. STATE of Nebraska, DEPARTMENT OF ROADS, Appellee.

No. 35345.

Supreme Court of Nebraska.

April 5, 1963.

Syllabus by the Court

1. A judgment of the district court must stand or fall upon the statutory record of the case, that is, on the pleadings, the finding and judgment, and the bill of exceptions.

2. Exhibits unless made so by appropriate reference are not a part of the pleadings, and, to be otherwise a part of the record on appeal, must be contained in a bill of exceptions or some substitute therefor.

3. The prayer for relief is a part of the petition, but it is no portion of the statement of facts which are required to constitute a cause of action, and it may be in excess of what the court is empowered to grant in the action.

4. In a case where the court gives no reason for its order granting a new trial the appellant meets the duty placed upon him when he brings the record here with his assignments of error and submits the record to critical examination with the contention that there was no prejudicial error. The duty then rests upon the appellee to point out the prejudicial error that he contends exists in the record and which he contends justifies the decision of the trial court. The appellant then in reply has the right, if he desires, of meeting those contentions.

5. Those errors will then be considered and determined here so far as necessary to the appeal, subject, of course, to the right to notice and consider plain errors not assigned.

6. Where testimony is offered and admitted in evidence without objection being made thereto, error cannot be predicated thereon on appeal. The rule also applies to the district court when reviewing its own proceedings on motion for a new trial.

7. Where a verdict of a jury is clearly against the weight and reasonableness of the evidence it will be set aside and a new trial granted.

8. In a condemnation action the weight and credibility of testimony of either lay or expert witnesses regarding value of land taken or value of remainder immediately before and immediately after taking is for the jury.

9. Under ordinary circumstances expert opinion evidence is to be considered and weighed by the triers of fact like any other testimony.

10. The amount of the damages sustained by a landowner for a right-of-way condemned across his land is peculiarly of a local nature to be determined by a jury, and its verdict will not ordinarily be interfered with if it is based on the testimony.

11. In a condemnation action, when the evidence is conflicting, the verdict of a jury will not be set aside unless it is clearly wrong.

Gaines, Spittler, Neely, Otis & Moore, Omaha, for appellants.

Clarence A. H. Meyer, Atty. Gen., A. A. Christensen, James J. Duggan, Sp. Asst. Attys. Gen., Harold S. Salter, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.

YEAGER, Justice.

This is an action growing out of an award of appraisers appointed by the county judge of Douglas County, Nebraska, wherein in an action for condemnation of real estate instituted by the State of Nebraska, Department of Roads, lands of Leone M. Connor, Donald C. Connor, Francis Connor, and Marjorie Connor, plaintiffs in the district court and appellants here, were condemned and appraised, and the valuation fixed.

The plaintiffs appealed to the district court for Douglas County, Nebraska, on the ground that the valuation and damages awarded were insufficient. The State of Nebraska, Department of Roads, was defendant and will be so referred to for the purposes of this opinion.

A trial was had to a jury in the district court and a verdict was returned in favor of plaintiffs for $68,149.62. The amount of the claim asserted in the petition was $80,000 and later increased to $97,265. Judgment was rendered on the verdict. Thereafter a motion for new trial was filed by the defendant. This motion was sustained and the verdict and judgment were vacated and set aside, and a new trial was ordered. From the order vacating and setting aside the verdict and judgment and the order granting a new trial, the plaintiffs have appealed.

The order, dated June 15, 1962, vacating and setting aside the verdict and judgment contains no statement of reason or ground therefor. No legally authentic reason or ground therefor is contained in the record.

It is true that in the transcript prepared by the clerk of the court is a document headed 'Exhibit' which appears to have been filed June 26, 1962. By whom it was filed is not disclosed. It is not identified as an attachment to any pleading or as a part of an order or entry of any kind made by the court. It does not appear to have been presented as a part of or in the nature of a bill of exceptions. By what appears on its face alone it is a copy of a letter sent by the judge to the attorneys for the plaintiffs and for the defendant. This instrument contains the following: 'I feel that testimony of a highly prejudicial character was allowed to be presented to the jury and that the same should have been excluded by the Court.'

This however may not be treated as a recognizably stated reason for setting aside the verdict and judgment. This court said in Phenix Ins. Co. v. Fuller, 53 Neb. 811, 74 N.W. 269, 40 L.R.A. 408, 68 Am.St.Rep. 637: 'The judgment of the district court must stand or fall upon the statutory record of the case--that is, the pleadings, the findings and judgment, and the bill of exceptions made a part of the record.' No departure from this rule has been found in the later cases.

In Dolen v. Dolen, 155 Neb. 347, 51 N.W.2d 734, the following from 4 C.J.S. Appeal and Error § 738, p. 1216, was quoted with approval: "It is generally held that exhibits are not part of the pleadings, and, to be made a part of the record on appeal, must be contained in a bill of exceptions or some substitute therefor."

Thus this case comes to this court without the aid of any declared reason or basis for the final order which was rendered.

At this point it appears that the factual background should be set forth, to the extent necessary for the purposes of the case. At the time of the condemnation the plaintiffs were the owners of 10.43 acres of land in a designated industrial area to the southwest of Omaha, in Douglas County, Nebraska. The east side abutted on Sixtieth Street. By condemnation 4.74 acres were taken outright by the defendant, an easement over 2.48 acres was taken, and the remainder was not taken. The action here is by the plaintiffs to recover a judgment for the value of the land taken, for the damage to the land included in the easement, and for the damage to the land not taken but caused by the taking of land and of the easement. The easement upon the land was between the land taken and that which was not taken. The items for which recovery is sought will for convenience be referred to collectively as damages.

In the light of the matters to be considered on this appeal and the fact that the right to take is not a matter of controversy, it does not appear necessary to further describe the property involved or the surrounding area.

The plaintiffs called four witnesses who gave testimony as to the amount of damages which had been sustained. Two of these were co-owners having knowledge of the property and two testified as experts by opinion as to the value of and damage to the property. Each of these witnesses testified to his opinion as to the amount of damages which was considerably in excess of the amount of the verdict and the judgment.

No objection was interposed by the defendant at the trial to the foundation laid for this testimony, its competency, its relevancy, or its materiality. Furthermore, no error was asserted in the motion for new trial attacking this evidence on any of these grounds.

It is pointed out here that witnesses for plaintiffs gave testimony as to damages in excess of the amount claimed in the petition, which was objected to. It is urged substantially in the brief here that to allow such testimony to stand was error. The contention however is without merit.

In Missouri Valley Land Co. v. Bushnell, 11 Neb. 192, 8 N.W. 389, it was said: 'A demurrer to a petition only lies to the statement of facts constituting the supposed cause of action, not to the prayer for relief, which may be much in excess of what those facts warrant the court to grant.' See, also, Burnham v. Bennison, 121 Neb. 291, 236 N.W. 745.

In Central Nebraska Public Power & Irr. Dist. v. Walston, 140 Neb. 190, 299 N.W. 609, it is pointed out that notwithstanding the prayer for relief is a part of the petition, it is no portion of the statement of facts which are required to constitute a cause of action.

The defendant called two witnesses who gave testimony as to the amount of damages which the plaintiffs sustained. These two testified as experts by opinion as to the value of the land and damage to the plaintiffs. As in the case of the witnesses for plaintiffs there was no objection as to foundation, competency, relevancy, or materiality, and there was no motion to strike or withdraw the evidence from the consideration of the jury.

The opinions of these witnesses as to value was far below that testified to by the witnesses for the plaintiffs and also far below the valuation fixed by the verdict of the jury and the amount for which judgment was rendered.

The opinions of the witnesses on both sides were approximations. The range however of damage which was testified to by the witnesses for the plaintiffs was from $79,250.07 to $97,264.71. The range of the value...