Mississippi State Highway Commission v. Smith

• Decision Date: 11 December 1939
• Docket Number: 33920
• Citation: 187 Miss. 613,192 So. 448
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI STATE HIGHWAY COMMISSION v. SMITH et al

192 So. 448

187 Miss. 613

MISSISSIPPI STATE HIGHWAY COMMISSION v. SMITH et al

No. 33920

Supreme Court of Mississippi, Division B

December 11, 1939

Suggestion Of Error Overruled February 5, 1940.

APPEAL from the circuit court of Pearl River county HON. GEO. W CURRIE, Special Judge.

Eminent domain proceeding by the Mississippi State Highway Commission against D. L. Smith and others. From a judgment for damages in the sum of $ 3, 000, the petitioner appeals. Reversed and remanded.

Reversed and remanded.

E. R Holmes, Jr., Assistant Attorney-General, for appellant.

Appellant's motion for a new trial should have been granted.

The record clearly shows that Mr. E. B. Williams, one of counsel for the defendant, said at the very beginning of this case and in the presence of the jury that the defendants were giving counsel for the plaintiff notice that a motion would be made later to permit the jury to view the property sought to be condemned by this proceeding. Thereafter, the court of its own motion immediately retired the jury.

The writer has studied carefully the case of National Box Company v. Bradley, 171 Miss. 15, 154 So. 724, in which on suggestion of error Mr. Justice Griffith delivered the opinion of the court, 171 Miss. 26, 157 So. 91, 95 A.L.R 1500. It is said with clarity in that opinion that in order to constitute reversible error the objecting party must (1) make the request for the retirement of the jury, and (2) he must object to the view. It appears that the court considered that the party must have been obliged in order to make his objection at all, to make it in the presence of the jury. The court was being lenient with counsel who made motions for jury views in the presence of the jury by stating that failure to conform to the rules of practice in that case would be considered as breaches of propriety but not as reversible error. We feel that this case goes one step farther than the Bradley case, but we likewise feel sure that the Bradley case is direct authority for our contention that appellant's motion for a mistrial should have been sustained.

It appears that the Bradley case ought to be enlarged upon, not only to cover a case like the instant case but to cover any case where it is clear that the attorney who made the request for a jury view or inspection, made it in such a manner as that the request was calculated to inflame the minds of the jurors against the party opposing and this should be true even though the court immediately thereafter retired the jury upon its own motion. The difference in size of the three verdicts on the three trials of this case show that incalculable harm was done the plaintiff, appellant here, and we believe that the harm was begun at the outset of this case by the opening remark fired at appellant's counsel by Mr. Williams.

Testimony with reference to cost of moving house and building was objectionable.

The market value of the property before and after the taking is one criterion for measuring the damage.

State Highway Com. v. Randle, 180 Miss. 834, 178 So. 486.

The landowner is not allowed to pyramid his damages by adding item upon item, especially where some of the items are improper in that they do not go to the market value of the property in question.

State Highway Com. v. Day, 181 Miss. 708, 108 So. 794.

This court has held that the replacement value of buildings is not the true test.

Miss. State Highway Com. v. Blackburn, 172 Miss. 554, 160 So. 73.

And, likewise, offers made for property are not admissible as evidence of value.

State Highway Com. v. Johnson, 191 So. 820; State Highway Com. v. Corley, 191 So. 119.

Hathorn & Williams, of Poplarville, for appellees.

The trial court did not err in overruling appellant's motion for a new trial.

Under Point I of its brief appellant argues that its motion for a new trial should have been granted because E. B. Williams, one of the attorneys for appellees, stated in the presence of the jury that the "defendant was giving counsel for plaintiff notice that a motion would be made later to permit the jury to view the property sought to be condemned by this proceeding."

We wish to state that the statement was made in good faith. In making the statement counsel had in mind Section 1940, Code of 1930, which makes it mandatory on eminent domain courts to have the jury view the land sought to be condemned, and to support his statement had a memorandum brief in his file referring to the opinion of Judge Ethridge in the case of Highway Commission v. Buchanan, 175 Miss. 157, 165 So. 798, in which Judge Ethridge said that "this right of viewing the premises is a very valuable right to both parties."

Counsel for appellees also had in mind that on the former trial of this same case, as shown at pages 106-107 of the Supreme Court record in case No. 33, 443 of the docket of the Supreme Court, styled D. L. Smith, et ux. v. State Highway Commission, Mr. J. M. Morse, one of counsel for the State Highway Commission, in cross-examining Mr. Smith, one of the appellees herein, asked him if he objected to the jury going down and looking at the land. Later on in the trial of that case, counsel for the State Highway Commission made a motion to permit the jury to view the property. With the foregoing in mind, the statement above quoted was made in good faith with no intention of prejudicing the jury.

As will be noted from the record, the jury was retired by the court immediately after the statement was made by counsel for appellees and before any objection to the statement was interposed by counsel for appellant. After the jury was excluded by the court and the attention of counsel for appellees was called to the case of Jackson & E. Ry. Co v. Thames et al., 148 Miss. 357, 114 So. 611, in which it was held by this court that on appeal from a judgment of an eminent domain court it is not mandatory on the circuit court to have the jury view the land sought to be condemned, counsel for appellees immediately made a motion to be permitted to withdraw from the consideration of the jury the above quoted statement. This motion was made before an objection had been interposed by counsel for appellant. At this stage of the proceeding, and while the jury was still out, counsel for appellant interposed objections to the above statement. No objections were made by counsel for appellant in the presence of the jury. Counsel for appellant dictated a number of long statements into the record, in each of which it is stated by counsel for appellant that he made objections in the presence of the jury. A counter-statement was dictated into the record by counsel for appellees, in which counter-statement counsel for appellees stated that it was his recollection that no objections were made by counsel for appellant in the presence of the jury. ...