Herod v. Carroll County

• Decision Date: 19 November 1934
• Docket Number: 31418
• Citation: 171 Miss. 217,157 So. 533
• Court: Mississippi Supreme Court
• Parties: HEROD v. CARROLL COUNTY

157 So. 533

171 Miss. 217

HEROD v. CARROLL COUNTY

No. 31418

Supreme Court of Mississippi

November 19, 1934

Division B

TRIAL.

On issue whether county took certain land for highway, granting instructions for county which conflicted with peremptory instruction for landowner which record showed was proper held error.

HON JNO. F. ALLEN, Judge.

APPEAL from the circuit court of Carroll county HON. JNO. F. ALLEN Judge.

Action by T. J. Herod against Carroll county. From the judgment plaintiff appeals. Reversed and remanded.

Reversed and remanded.

J. W. Conger, of Winona, for appellant.

The defendant's instruction No. 1 is erroneous. It confines the jury in estimating the quantity of land taken solely to the road bed, whereas the proof shows the actual road to be fifty feet wide, and to allow the taking of a highway right of way (for No. 82 highway which this is) fifty feet wide, and then on condemnation proceedings, confine the jury to the actual road bed, or vehicular traffic bed, is not only prejudicial, unreasonable, does not respond to the evidence, but is misleading and we are simply bound to be a little undignified and say it seems ridiculous.

Is it conceivable that the court could give a straight out peremptory instruction to find for the plaintiff and lay out to the jury in detail just exactly what it must consider as damages and elements of damages in rendering that verdict, and then, in the next breath, write out and give to the jury another instruction for the defendant, this: "unless they believe from the evidence" so and so, however, they need not render that verdict for the plaintiff, but may render one for the defendant?

Instructions must be considered as a whole. All instructions taken together must correctly announce the law.

Masonite Corp. v. Lochridge, 140 So. 223, 163 Miss. 364; Ellis v. Ellis, 134 So. 150, 160 Miss. 345, 131 So. 1; McKee v. Assad, 153 So. 799; Keith case, 151 So. 916; I. C. R. R. Co. v. McGowan, 92 Miss. 603, 46 So. 55; McNeil v. Bay Springs Bank, 100 Miss. 271, 56 So. 333.

It is the duty of the trial judge to direct a verdict when testimony and reasonable inferences therefrom would not support a different finding.

Elliott v. G. M. & N., 145 Miss. 768, 111 So. 146.

The controlling facts in this case were undisputed and a directed verdict was proper.

Banfill v. Byrd, 122 Miss. 288, 84 So. 227; Section 17 of the Constitution.

E. V. Hughston, of Greenwood, and S. E. Turner, of Carrollton, for appellee.

We submit that all of this testimony justified the granting of the instruction for appellee and did not justify the granting of the two instructions for the appellant, which charged the jury to find for the appellant. We insist that instructions 1 and 2 given to appellant by the court were unauthorized by the testimony in this case, because the jury was there instructed to find in favor of the plaintiff, and the court then and thereby invaded the province of the jury in passing on disputed facts.

Argued orally by J. W. Conger, for appellant.

OPINION

Ethridge, P. J.

This case has been before this court before; the decision being found in Herod v. Carroll County, 162 Miss. 78, 138 So. 800, where the judgment of the court below was reversed and the cause remanded for a new trial. It appears that this appeal is, substantially, from the same testimony as the former appeal.

The board of supervisors laid out a highway which it turned over to the state which improved the road, and the county had paid Herod up to the southeast corner...