Gordon v. State

• Citation: 273 Ala. 213,137 So.2d 752
• Decision Date: 01 February 1962
• Docket Number: 6 Div. 675
• Parties: J. P. GORDON et ux. v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 752

137 So.2d 752

273 Ala. 213

J. P. GORDON et ux. v. STATE of Alabama.

6 Div. 675.

Supreme Court of Alabama.

Feb. 1, 1962.

Jack Martin Bains, Oneonta, for appellants.

Hugh A. Nash, Sp. Asst. Atty. Gen., for appellee.

SIMPSON, Justice.

This is a condemnation proceeding in Blount County, seeking the condemnation of certain lands of appellants for the purpose of constructing a new state highway between Oneonta and Birmingham, Alabama. Appellants, being dissatisfied with the amount awarded them, appealed the case to the Circuit Court of Blount County where a trial de novo was had. Prior to the trial, the parties stipulated that the sole issue to be submitted to the jury was the amount of damages and compensation, if any, to which the appellants were entitled as a result of the condemnation. The jury returned a verdict in favor of appellants and fixed the compensation due them. A judgment was entered on such verdict. Appellants, still being dissatisfied with the amount of the award, thereupon filed a motion for a new trial which was overruled. They now bring this appeal.

Some eighteen errors are assigned. Primarily, these assignments conveniently fall into three categories, each of which deals with the same question of law. First are the assignments of error dealing with the admission of evidence. Secondly, assignments of error 4 and 10 charging the lower court with improper remarks during the trial. No objection was taken, or exception reserved, by the appellants to these statements of the court; hence, our review is not invited. State v. Boyd, 271 Ala. 584, 126 So.2d 225. Thirdly, assignments of error connected with the trial court's refusal to grant a new trial, the basis of which was the inadequacy of the damages awarded and the contention that the verdict rendered was against the great weight of the evidence. We see no reason to treat each assignment separately. It has long been established that this court will not search for error not specifically assigned and argued in brief (which seems to be the case here), but merely touched upon in general propositions and without specific application. Suits v. Glover, 260 Ala. 449, 71 So.2d 49, 43 A.L.R.2d 465.

The question to be determined in this case is the reasonable market value of the land. The principal argument of the appellants concerns the propriety of the testimony of the several witnesses. The value of the land taken as reflected by their testimony was at great variance, ranging above and below the amount awarded by the jury. In addition, the jury itself viewed the land in question. In such a case the testimony of any witness is not conclusive upon the jury. State v. Long, 269 Ala. 270, 112 So.2d 480; State v. Carter, 267 Ala. 347, 101 So.2d 550.

Appellants argue strenuously the rulings of the trial court on questions put to various witnesses, which in the main relate to their competency to express opinions as to the value of the condemned land. Such inquiries are addressed to the sound discretion of the trial court, and its decision will not be reversed on appeal except for palpable abuse. State v. Johnson, 268 Ala. 11, 104 So.2d 917. No such abuse is made to appear in these rulings.

As for other rulings on the evidence, while not conceding them to be erroneous, we find nothing in the record showing prejudice to the appellants. It is the burden of the appellants not only to show error but to show probable injury. Forest Investment Corp. v. Commercial Credit Corp., 271 Ala. 8, 122 So.2d 131.

The conclusion is inescapable that there was no error in the trial court's overruling the motion for a new trial on the weight of the evidence, the subject of the last group of assignments. In Stokely-Van Camp, Inc. v....