Mississippi State Highway Commission v. Rogers, 41708

• Decision Date: 20 March 1961
• Docket Number: No. 41708,41708
• Citation: 240 Miss. 529,128 So.2d 353
• Parties: MISSISSIPPI STATE HIGHWAY COMMISSION v. C. B. ROGERS.
• Court: Mississippi Supreme Court

Page 353

128 So.2d 353

240 Miss. 529

MISSISSIPPI STATE HIGHWAY COMMISSION v. C. B. ROGERS.

No. 41708.

Supreme Court of Mississippi.

March 20, 1961.

Body & Holifield, Welch, Gibbes & Graves, Laurel, for appellant.

James D. Hester, George Maxey, Laurel, for appellee.

KYLE, Justice.

This case is before us on a second appeal by the Mississippi State Highway Commission from a judgment in the sum of $100,000 rendered in favor of the appellee C. B. Rogers as compensation and damages for the taking of 6.52 acres of land for public use in the construction of a new interstate highway between the City of Laurel and the Town of Ellisville in Jones County.

The petition for the condemnation of the above mentioned parcel of land was filed by the State Highway Commission in the county court of the Second Judicial District of Jones County on April 7, 1958. Upon motion of the petitioner, and by agreement of the parties, an order was entered on May 13, 1958, transferring the case to the county court of the First Judicial District of Jones County, in which judicial district the land was situated. The case was tried before a jury at the June 1958 term of the county court, and a verdict was rendered in favor of the appellee Rogers for the sum of $120,000, and judgment was entered in favor of the appellee for that amount. The appellant filed a motion for a new trial, which was overruled. An appeal was then taken to the circuit court. The circuit court found a number of errors in the trial before the county court, and ordered that the judgment be reversed and a new trial granted unless the appellee should accept a remittitur of $18,000. The appellee accepted the remittitur on January 14, 1959, and the judgment, as thus reduced to $102,000 was affirmed. From that judgment the first appeal to this Court was taken; and on May 25, 1959, this Court reversed the judgment of the circuit court and remanded the case to the circuit court for a new trial. The reversal, as stated in the opinion of the Court, was based upon the numerous errors committed by the trial court in the admission of testimony and the gross excessiveness in the amount of the verdict. See Mississippi State Highway Commission v. Rogers, 236 Miss. 800, 112 So.2d 250.

The case was tried again at a vacation term of the Circuit Court of the First Judicial District of Jones County commencing on August 31, 1959, and on September 2, 1959, the jury returned a verdict in favor of the appellee for the sum of $122,500 upon which judgment was entered. A motion for a new trial was made by the appellant, and on September 12, 1959, the circuit court affirmed the judgment on condition that the appellee enter a remittitur reducing the principal amount of the judgment to $90,000. The appellee declined to enter such remittitur, and a new trial was granted on the grounds, first, that the opinion rendered by this Court on the first appeal was applicable, and, second, that the verdict rendered by the jury on the second trial was still excessive and unreasonable, and 'so great as to indicate passion on the part of the jury, and to shock the enlightened conscience.'

On November 5, 1959, the appellant filed a petition for a change of venue to the Circuit Court of the Second Judicial District of Jones County, or to the circuit court of some other convenient county in the state, alleging as grounds therefor the following: (1) That, because of prejudice existing in the public mind, the petitioner was unable to obtain a fair and impartial trial in the First Judicial District of Jones County; (2) that the cause had been tried twice in the First Judicial District of Jones County, and in each instance the several juries had brought in verdicts which the courts had held to be so excessive as to shock the enlightened conscience; (3) that the verdicts rendered by the juries in other eminent domain cases filed by the petitioner in the First Judicial District of Jones County had likewise been held by the courts to be so excessive as to shock the enlightened conscience; and (4) that the actions of all of said juries had established a pattern showing the inability of the petitioner to obtain a fair and impartial trial in the First Judicial District of Jones County. The appellant attached to its petition a certified copy of the resolution adopted by the State Highway Commission on October 13, 1959, directing its attorneys to file a petition for a change of venue for the reasons stated.

Before the case was called for trial again at the November 1959 term of the court, the appellant presented its petition for a change of venue, and offered in evidence in support of said petition the entire record of the proceedings in said cause entitled 'Mississippi State Highway Commission v. C. B. Rogers,' including the court reporter's transcript of the record and all orders and court papers in said cause, and also the judgment and opinion of this Court rendered on the first appeal. The appellant also offered in evidence, over the objection of the appellee, parts of the records in the following eminent domain cases appealed to this Court from the Circuit Court of Jones County and decided by this Court since May 25, 1959, in which this Court or the trial court found that the verdicts rendered by the juries were so grossly excessive as to be wholly unreasonable and to evince bias and prejudice by the jury, and in which new trials were awarded or the judgments affirmed only after remittiturs were entered; Mississippi State Highway Commission v. Ellzey, 1959, 237 Miss. 345, 114 So.2d 769; Mississippi State Highway Commission v. Taylor, 1959, 237 Miss. 847, 116 So.2d 757; Mississippi State Highway Commission v. Pittman et al., 1960, 238 Miss. 402, 117 So.2d 197; Mississippi State Highway Commission v. Pittman, Miss.1960, 120 So.2d 434; McDuffie v. Mississippi State Highway Commission, Miss.1960, 124 So.2d 284; Mississippi State Highway Commission v. Stubbs, Miss.1960, 124 So.2d 281; Strickland v. Mississippi State Highway Commission, Miss.1960, 123 So.2d 238; Strickland v. Mississippi State Highway Commission, Miss.1960, 124 So.2d 696; Mississippi State Highway Commission v. Taylor, Miss.1960, 124 So.2d 684.

At the conclusion of the evidence offered on behalf of the appellant in support of its petition for a change of venue, the court stated that it did not think that the evidence that had been offered was sufficient to justify the granting of a change of venue, and an order was entered denying the petition for a change of venue. The case was then tried again at the November 1959 term of the circuit court, and the jury returned a verdict in favor of the appellee for the sum of $100,000. Judgment was entered for that amount, and from that judgment the appellant has prosecuted this appeal.

It is not necessary that we undertake to set forth in detail the testimony of each of the witnesses who testified on behalf of the respective parties during the third trial.

The testimony offered on behalf of the State Highway Commission may be summarized briefly as follows: The land owned by Rogers was situated on the west side of the present U. S. Highway No. 11 approximately one mile north of the city limits of Ellisville and approximately three miles south of the city limits of Laurel. The entire tract, prior to the taking of the strip of 6.5 acres for right of way purposes, was substantially rectangular in shape, and consisted of 28.98 acres, with a frontage of approximately 418 feet on Highway No. 11. At the time of the taking, Rogers was using 6.7 acres off of the east side of the 28.98-acre tract, fronting on Highway No. 11, as a business site and storage lot for his used auto parts business. This front tract was under fence with a gate on the east side for entrance from Highway No. 11. There were two buildings located on the land within the enclosure which were being used for business purposes, a metal building 40 X 60 made out of galvanized iron which was used as an office and parts building, and a long metal covered shed 40 X 150, a part of which was enclosed with metal sheeting. The remaining part of the 28.98-acre tract lying west of the storage lot was woodland used only for the growing of timber. The new highway, as laid out and partially constructed at the time of the third trial, crossed Rogers' land diagonally in a northeasterly and southwesterly direction.

B. S. McLemore, right of way agent for the State Highway Commission, testified, and the plat which appears in the record shows, that the strip of land taken for right of way purposes included 2.6 acres of the 6.7 acres frontage which at the time of the taking was being used by Rogers in his used auto parts business, [240 Miss. 536] and 3.9 acres of woodland lying west and southwest of the fence which marked the west boundary line of the 6.7 acres tract. The total amount of land left on the east and south side of the new highway was 4.2 acres, with a frontage of 309.2 feet on Highway No. 11. There was also left after the taking 18.1 acres of woodland lying west of the new highway for which there was no outlet to the public road. McLemore testified that the 6.7 acres which Rogers was using as a business site prior to the taking was approximately the same elevation as Highway No. 11, but there was a drop-off of 7 to 9 feet in the elevation of the woodland extending westwardly from the used auto parts storage lot. Three witnesses testified for the State Highway Commission as to the value of Rogers' property before and after the taking. J. Ed Turner, Leon T. Rogers, Jr., and Clarence Boone, all of whom appear to have had experience in appraising real property, testified that in their opinion the value of the Rogers property before the taking was $27,500, and after the taking $5,400, making a difference in value of $22,100.

Three witnesses also testified on behalf of the appellee as to the value of the property before and after the taking.

James Reeves,...