Doty v. City of Jacksonville
| Decision Date | 14 June 1932 |
| Citation | 142 So. 599,106 Fla. 1 |
| Parties | DOTY v. CITY OF JACKSONVILLE. |
| Court | Florida Supreme Court |
En Banc.
Error to Circuit Court, Duval County; De Witt T. Gray, Judge.
Condemnation proceeding by the City of Jacksonville against Clarence T Doty. To review the judgment, defendant brings error.
Reversed and remanded.
L. R. Milton and Cockrell & Cockrell, all of Jacksonville, for plaintiff in error.
Austin Miller and Emmet Safay, both of Jacksonville, for defendant in error.
This was a condemnation proceeding, brought by the city of Jacksonville to acquire portions of two lots belonging to plaintiff in error for use as a public street and for the purpose of widening Beaver street to a width of 106 feet. There was verdict and judgment in favor of defendant in error, awarding plaintiff in error damages in the sum of $2,500 and $350 for attorney's fees. To this judgment plaintiff in error took writ of error.
The defendant in the course of the trial of the case moved the court to require the city to produce the plans and specifications for widening Beaver street to a width of 106 feet. This motion was denied. Afterward, the plans and specifications were brought into court by the city engineer in response to a subpoena, and were offered in evidence by the defendant, Doty. The city objected, and the objection was sustained. The purpose of this evidence was to show the grade of that portion of the street adjoining the defendant's property, which would have some bearing on the extent and amount of the damage, if any, which would be done to that portion of defendant's property which would be left after the condemnation proceeding. We think the court erred in sustaining the city's objections to the efforts of the defendant to get this evidence before the jury. Chicago v. Lord, 276 Ill. 571, 115 N.E. 397.
The ninth assignment of error reads as follows:
'The court erred in permitting one of the attorneys for the petitioner, over the objections of the defendant, in his argument to the jury, to state to the jury that when they retired to consider their verdict they should keep in mind that whatever is paid to defendant as compensation for the property would come out of the pocket of the tax payers, and that the jury as tax payers would pay a part of whatever should be allowed to the defendant for his property.'
Objection to this line of argument was made, and the objection overruled. This constituted reversible error. Counsel for the city made some subsequent effort to qualify and explain this argument, but the damage had been done, and we are clearly of the opinion that such argument was improper, and, in its tendency, prejudicial to the defendant's case. S. A. L. Ry. Co. v. Smith, 53 Fla. 375, 385, 43 So. 235; Akin v. State, 86 Fla. 564, 98 So. 609; 2 Encyc. Pldg. & Prac. 727.
At the request of the petitioner, the court gave the following charge to the jury:
Section 3118, Comp. Gen. Laws 1927, being one of several sections governing the exercise of the power of eminent domain by municipalities, provides for the impaneling of a jury (Italics supplied.)
The authorities are in some conflict on the question presented by certain portions of the quoted instruction, but we are disposed to adopt the view of those decisions and textwriters which hold that the purpose of the view is to enable the jury to better understand and apply the evidence and the testimony that comes to the jury from the witness stand, by acquainting the jury with the physical situation condition, and surroundings of the thing viewed. The jury can undoubtedly utilize and consider the knowledge thus acquired of the physical facts by actual view of the premises,...
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