Mississippi State Highway Commission v. Prewitt

• Decision Date: 13 November 1939
• Docket Number: 33872
• Citation: 192 So. 11,186 Miss. 778
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI STATE HIGHWAY COMMISSION v. PREWITT et al

192 So. 11

186 Miss. 778

MISSISSIPPI STATE HIGHWAY COMMISSION v. PREWITT et al

No. 33872

Supreme Court of Mississippi, Division B

November 13, 1939

APPEAL from the circuit court of Choctaw county HON. JOHN F. ALLEN Judge.

Condemnation proceeding by the Mississippi State Highway Commission against Sam Prewitt and others for property condemned for highway. From the judgment, the State Highway Commission appeals. Affirmed.

Affirmed.

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

The court erred in refusing appellant instruction shown on page 36 of the record. 13 L.R.A. (N.S.) 420. The instruction is as follows: "The court instructs the jury for the petitioner that jury shall not allow the defendants any damages for any loss of reason of inconvenience to the owners or defendants, which does not enter into the market value of the property actually taken for public use."

The instruction asked for as shown on page 38 of the record is a quotation from the State Highway Commission v. Day, 181 Miss. 708, which case followed the case of Schlicht v. Clark, 114 Miss. 354. The instruction is as follows "The object of our statute is to enforce Section 17 of the Constitution of 1890 insofar as to ascertain what amount the owner fairly loses when his land is taken by eminent domain for public improvement, and the many items which may arise in a case insofar as they show a depreciation of the owner's property by the taking are never competent as separate items of rcoverable damage."

This instruction is particularly applicable in this case for the reason that the defendant by his testimony divided his damages into separate items, to-wit: $ 60.00 per acre for the land taken, $ 225.00 for the fence and $ 499.00 for inconvenience, etc. The defendant was trying to pyramid his damages by adding item on item and this court has repeatedly held that it confuses the jury by hurling a mass of figures at them which mean nothing.

State Highway Commission v. Day, 181 Miss. 708; State Highway Commission v. Brown, 176 Miss. 23; State Highway Commission v. Chatham, 173 Miss. 427; State Highway Commission v. Randall, 178 Miss. 486.

We likewise contend that the court erred in refusing the instruction appearing on page 40 of the record, which is as follows: "The court instructs the jury for the plaintiff that in arriving at your verdict you shall consider the difference in the market value of the property with the improvement, and that without it, not considering general benefits or injuries shared by the public in general."

City v Higgins, 81 Miss. 381; State Highway Commission v. Day, 181 Miss. 708.

The court below erred in refusing instruction appearing on page 42 of the record which is as follows: "The court instructs the jury for the plaintiff that in arriving at your verdict you are to award the defendants the cash market value of the land actually taken; and if you find that the cash market value of the remaining property after the improvement is equal to, or greater than, the cash market value of the property before the improvement, then you are to award the defendants only the cash market value of the land actually taken."

City v. Higgins, 81 Miss. 381; Schlicht v. Clark, 114 Miss. 354.

We respectfully submit that the law covered in these four instructions should have been given to the jury and as the statements of law contained in them are covered by no other instruction, the refusal of each of these instructions or any one of them, would reverse and remand this case.

Jack B. Carlisle, of Ackerman, for appellees.

We respectfully submit that the court did not commit error in refusing the four instructions because they did not properly state the law governing the cause, and/or they had no foundation in the evidence, and/or were covered by given instructions, and/or did operate to the prejudices of the appellant.

The court properly refused the instruction appearing on page 36.

We cannot find any decision which supports the theory that this properly states the law in this state, but granting that it does, no error was committed for no evidence as to damages was adduced upon the trial that did not enter into the market value.

Collins v. Union Bank, 70 So. 581, 110 Miss. 508; Telegraph Co. v. Cosnahan, 62 So. 824, 105 Miss. 615; State Highway Commission v. Meador, 186 So. 642.

The court properly refused the instruction appearing on page 38.

State Highway Com. v. Meador, 186 So. 642; Collins v. Union Bank, 70 So. 581, 110 Miss. 508.

The court properly refuses appellant instruction appearing on page 40 of the record.

Appellant relies upon City v. Higgins, 81 Miss. 376 for this instruction and asserts that same was upheld in State Highway Com. v. Day, 180 So. 794, but we fail to find that the latter case upholds same. If instruction correctly states the law, the court would only have been repetitious for the reason that instructions given appellant as found on pages 35 and 37 of the record, when read together, cover the same points of law. Only "injuries shared by public" is omitted; but same has no basis in the evidence for no witness gave testimony of public injury.

Yazoo &amp R. Co. v. Dees, 83 So. 613, 121 Miss. 439; Yazoo & R. Co. v. Walls, 70 So....