Knabe v. State

• Citation: 231 So.2d 887,285 Ala. 321
• Decision Date: 12 February 1970
• Docket Number: 3 Div. 274
• Parties: Walter J. KNABE and Mary Will Knabe v. STATE of Alabama.
• Court: Supreme Court of Alabama

Page 887

231 So.2d 887

285 Ala. 321

Walter J. KNABE and Mary Will Knabe v. STATE of Alabama.

3 Div. 274.

Supreme Court of Alabama.

Feb. 12, 1970.

Rufus M. King, Montgomery, for appellants.

Goodwyn, Smith & Bowman and Sterling G. Culpepper, Jr., Montgomery, for the State.

COLEMAN, Justice.

The landowners, husband and wife, appeal from a judgment of the circuit court condemning for public use a parcel of land situated in the City of Montgomery.

The jury awarded $43,500.00 as compensation to the owners of the land and judgment was rendered accordingly. The owners filed motion for new trial on the ground, among others, to effect that the amount of the award is inadequate. The motion was overruled and the owners appeal.

1.

The valuation date was April 22, 1965. The condemnor called one of the owners, the husband, as a witness. As here pertinent, his testimony on direct examination is as follows:

'Q For the record, this is Mr. Walter J. Knabe?

'A That's right.

'Q One of Montgomery's most distinguished practicing attorneys and, incidentally, the owner of this subject property.

'A I deny the first, but the second I admit.

'Q Walter, and I hope you will permit me to call you that, when did you first buy this property?

'A I bought it in last part of 1945.

'. . .

'Q How much did you pay for this property in 1945?

'MR. KING: Your Honor, we object to that, if the Court please.

'MR. SMITH: Your Honor, it is material.

'MR. KING: We have a case on that, Your Honor.

'MR. SMITH: Well, I would like to see it if I can't show what the owner paid for it. Do you object to the question, first of all, as to what the owner paid for it when he bought it?

'MR. KING: Yes, sir.

'THE COURT: Let me see the case you referred to.

'MR. KING: Yes, Your Honor. Here it is. Now, Your Honor, that was in 1945 which is better than twenty years ago--

'MR. SMITH: Well, I understand that, but the first question I asked was when it was acquired. I am not trying to say what he paid for it as that wouldn't have any bearing as to what it is worth today, but I think we are entitled to know.

'THE COURT: I think I can adequately cover that in the charge. I overrule the objection.

'THE WITNESS: I paid $5,250.00 for it.

'MR. KING: We except.'

The owners assign as error that the court erred in overruling their objection to the question: 'How much did you pay for this property in 1945?'

It will be noted that counsel for the condemnor stated:

'. . .. I am not trying to say what he paid for it as that wouldn't have any bearing as to what it is worth today, but I think we are entitled to know.'

The general rule is that competent evidence of the price paid by the owner for the property sought to be condemned is admissible as tending to illustrate or bearing probatively on its market value, unless the sale was too remote in point of time from the condemnation proceedings as to afford no fair criterion of present value, or if otherwise shown to be without probative force, as where the sale was not a voluntary one or where other special considerations conduced the sale at other than the true market value. Thornton v. City of Birmingham, 250 Ala. 651, 654, 35 So.2d 545, 7 A.L.R.2d 773.

It is within the trial court's discretion to determine whether the evidence is too remote, and its ruling in that regard, unless plainly erroneous, is not revisable on appeal. Sayers v. City of Mobile, (7), 276 Ala. 589, 592, 165 So.2d 371, 9 A.L.R.3d 283.

Common knowledge appears to require the conclusion that the sale price in 1945, of land on a busy street in Montgomery, is too remote in point of time from the year 1965 as to afford a fair criterion of the value of the land at the later date. Counsel for condemnor stated '. . . that wouldn't have any bearing as to what it is worth today . . ..' The court gave the landowners' requested written charges that '. . . the cost of the property in 1945 is not a proper factor in determining the market value of the property in April 1965'; and that the date of the owner's purchase '. . . is so long ago that you should not consider what he paid for the property.'

This record shows that all parties and the court are in agreement that evidence of the price paid in 1945 was not proper to be considered by the jury in determining the value of the land in 1965. Admission of evidence of the 1945 price was plainly erroneous.

The condemnor argues that the error was cured by the giving of the owners' requested instruction that the 1945 price should not be considered.

By admission of evidence of the 1945 price, the owners were placed in the position of seeking what some might regard as an excessively large profit on a comparatively small investment. The evidence of the 1945 price is clearly prejudicial.

At the time objection was overruled and the evidence erroneously admitted, the trial court indicated an intention to subsequently instruct the jury to disregard the evidence. The evidence was never clearly excluded or withdrawn. In oral charge, the court said to the jury, among other things:

'. . .. I stated that you are the triers of the facts. However, you are bound by the evidence in ascertaining what the facts are. The evidence that came from this witness stand is to be the boundary of your deliberations. . . ..'

In reversing a judgment because of the admission of illegal evidence which the trial court had withdrawn and charged the jury to disregard, this court said:

'This court has always regarded with caution the practice of admitting illegal evidence and afterwards excluding it (Green v. State, 96 Ala. (29) 32, 11 So. 478), though reversals have been denied on that account where the trial court has, as far as practicable, removed the unfavorable impression of such illegally admitted evidence by instructing the jury to disregard it altogether. Jordan v. State, 79 Ala. (9) 12. . . .. We would feel no certainty or safety in holding that there was an adequate correction of the errors involved, and our conclusion therefore is that the judgment must be reversed on account of the strong impression which was probably made on the jury by the accumulated errors on this point. Watson v. Adams, 187 Ala. 490, 65 So. 528, Ann.Cas. 1916E, 565; Throckmorton v. Holt, 180 U.S. 552, 21 S.Ct. 474, 45 L.Ed. 663.' Alabama City, G. & A. Ry. Co. v. Kyle, 204 Ala. 597, 600, 87 So. 191, 193.

It is a difficult matter to entirely remove impressions once made upon the jury by the introduction of illegal evidence. Green v. State, 96 Ala. 29, 32, 11 So. 478. As the saying goes, you cannot 'unring' a bell.

The evidence here is clearly prejudicial to the landowners, is admittedly not proper for the jury to consider, and was deliberately admitted over objection with the indicated intention to instruct the jury to disregard it. In these circumstances we are not persuaded that giving the instruction requested by the landowner is adequate to eradicate the prejudice arising from the evidence. Neither are we persuaded that we should hold that its admission was harmless error. We hold that its admission was reversible error.

2.

The owners assign for error the action of the court in giving condemnor's requested Charge 4 which recites:

'4. The Court charges the jury that you are not bound to take any man's opinion as to the market value of the property being acquired in this proceeding and you may act on your own judgment and good common sense in arriving at a just value to be awarded this property owner.'

The owners argue that Charge 4 '. . . gave the jurors an improper opinion of their duty, and was highly prejudicial to defendants.' To support this argument, the owners rely on Moore v. Watts, 81 Ala. 261, 2 So. 278; O'Neill v. City of Birmingham, 221 Ala. 580, 130 So. 87; State v. Ingalls, 277 Ala. 562, 173 So.2d 104; and State v. Crawford, 277 Ala. 568, 173 So.2d 109. We will not here set out each of the charges relied on in the cited cases. In O'Neill, this court held that the trial court committed reversible error in giving Charges 55, 56, and G, 221 Ala. 584, 130 So. 87, (8--10). The court said:

'There is no 'absolute' nor 'unrestricted' right in the trier of facts to disregard evidence of witnesses thus declared competent, whether expert or not. It is not conclusive as of course, but is to be considered like other evidence in connection with all the facts and circumstances and in the light of the knowledge and experience of the jury in finding the true value. In the giving of charges 55 and 56 and G there was error to reverse.' (221 Ala. at 584, 130 So. at 91)

In O'Neill, Charge 56 is typical of the three charges held to be erroneous. Charge 56 recites:

"56. The Court charges the jury that the opinion of an expert as to the value of the plaintiff's land involved in this suit, is an opinion only, and you may deal with it as you please, giving it credence or not as your own experience or general knowledge of the subject may dictate. Such opinions are mere estimates and are not conclusive on juries even when without conflict." (221 Ala. at 581, 130 So. at 88)

Charge 4 in the instant case does not say to the jury, with respect to expert opinion evidence of value, that ". . . you may deal with it as you please . . ."; or as in Charge 55 in O'Neill, ". . . you have the absolute right to entirely disregard the opinion of all the experts who have testified . . . as to the value of the plaintiff's land, . . .."

Charge 4 in the instant case resembles more closely Charge 54 in O'Neill which recites:

"54. The Court charges the jury that you are not bound by the opinion of the experts or by apparent weight of evidence, but you may give your own conclusions." (221 Ala. at 581, 130 So. at 88)

This court held in O'Neill that giving Charge 54 was not reversible error, saying:

'Charge 54 is to like effect with a charge sustained in United States v. Goodloe, 204 Ala. 484, 486, 86 So. 546.' (221 Ala. at 583, 130 So. at 90)

In Goodloe, a condemnation proceeding, the...