Myra Foundation v. United States

• Decision Date: 17 June 1959
• Docket Number: No. 16101.,16101.
• Citation: 267 F.2d 612
• Parties: MYRA FOUNDATION, a Corporation, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

267 F.2d 612 (1959)

MYRA FOUNDATION, a Corporation, Appellant, v. UNITED STATES of America, Appellee.

No. 16101.

United States Court of Appeals Eighth Circuit.

June 17, 1959.

Robert Vaaler, Grand Forks, N. D. (Day, Stokes, Vaaler & Gillig, Grand Forks, N. D., on the brief), for appellant.

Hugh Nugent, Atty., Dept. of Justice, Kansas City, Mo. (Perry W. Morton, Asst. Atty. Gen., Roger P. Marquis, Atty., Dept. of Justice, Washington, D. C., Robert Vogel, U. S. Atty., and Gordon Thompson, Asst. U. S. Atty., Fargo, N. D., on the brief), for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and MATTHES, Circuit Judges.

GARDNER, Chief Judge.

This is a proceeding in condemnation brought by the United States to determine the just compensation to be paid for certain tracts of land belonging to various owners for an expansion of the Grand Forks Air Base, near Grand Forks, North Dakota. Appellant was the owner of one of the tracts included in the condemnation proceeding and it consisted of 160 acres of land designated in the record as Tract A-122. While owners of the other tracts described in the condemnation proceeding were made parties, they have not appealed from the judgment and they need be given no further consideration. At the time of filing of the complaint the Government filed a declaration of taking and deposited in the registry of the court the sum of $11,988.15, its estimated compensation to be paid for the property taken and for property damage, and it was thereupon awarded immediate possession of the land so appropriated.

It was contended by appellant that it was entitled to recover, as just compensation for the 160 acres of land actually taken, damages in the nature of severance damage to adjoining property owned by it, and there was testimony produced by the Government and likewise by the appellant, both as to the value of the property condemned and the estimated amount of damage to appellant's adjoining property. The evidence will be further developed in the course of this opinion.

At the close of all the evidence neither party moved for a directed verdict, and the court submitted the case to the jury on instructions to which appellant interposed certain objections not preserved in the printed record. The jury returned a verdict fixing the reasonable value of the property taken at $12,800 and the severance damage caused by the taking at $480. The court entered judgment pursuant to the verdict of the jury, following which appellant moved for a new trial. The court overruled this motion and appellant has appealed, seeking reversal on the following grounds: (1) The court erred in denying its motion for new trial on the grounds that the jury disregarded the court's instructions in determining on their verdict, and (2) the court erred in its instruction to the jury on the matter of quotient verdict.

The jurisdiction of this Court is appellate and it cannot retry the issues de novo, nor can we ordinarily pass on issues not presented to the trial court. In other words, we are limited to alleged errors in law and not error or mistake of fact. To warrant this Court in considering the question of the sufficiency of the evidence to sustain a verdict, that question must have been presented to the trial court by a motion for a directed verdict, by a request for instructions or by some other affirmative action. Hoblik v. United States, 8 Cir., 151 F.2d 971; Minnehaha County, S. D. v. Kelley, 8 Cir., 150 F.2d 356; Harnik v. Lilley, 8 Cir., 167 F.2d 159. In the instant case the complaint goes to the amount of the verdict. We have consistently held that the remedy for excessive or inadequate verdicts is by motion for new trial and that the ruling of the trial court on such motion will not be reviewed by this Court. Agnew v. Cox, 8 Cir., 254 F.2d 263; Zimmerman v. Mathews Trucking Corp., 8 Cir., 203 F.2d 864. The Seventh Amendment of the Constitution of the United States provides, among other things, that:

"* * * no fact tried by a jury, shall be otherwise re-examined in any Court in the United States, than according to the rules of the common law."

At common law, at the time of the adoption of this Amendment, the only method of reviewing facts tried by a jury was a motion for new trial presented to the trial court. Agnew v. Cox, supra. In Zimmerman v. Mathews Trucking Corp., supra, it is said, inter alia 203 F.2d 868:

"This Court has consistently adhered to the proposition that the responsibility for keeping jury awards within reasonable bounds is essentially that of the trial courts and not of this Court."

Appellant did not request any instructions going to the measure or method of determining damages. Had it done so, and such request had been refused, a question of law would have been presented. It, however, urges that the jury failed to follow an instruction as to damages given by the court. If appellant is correct as to this contention, then the error, if any, was one of fact and not one of law, the exclusive remedy for which was, as above noted, a motion to the trial judge for a new trial.

In considering the question of the sufficiency of the evidence to sustain a verdict, this Court will apply the applicable law regardless of the court's instructions, even though the instruction involved may not have been excepted to by either party. Coca Cola Bottling Co. of Black Hills v. Hubbard, 8 Cir., 203 F. 2d 859; Slocum v. New York Life Ins. Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879; Central Steel Tube Co., Inc., v. Herzog, 8 Cir., 203 F.2d 544. In answer to a contention that in passing upon the question of the sufficiency of the evidence we should apply the law as announced in the instructions, if not excepted to, as the law of the case, in Coca Cola Bottling Co. of Black Hills v. Hubbard, supra 203 F.2d 862, we said, inter alia:

"This Court must ascertain for itself what the applicable law is, whether the instructions were excepted to or not."

We do not wish to be understood, however, as holding that the verdict of the jury was violative of the court's instructions.

It is appellant's contention that the jury failed to follow the following instruction of the court:

"As previously stated, this case must be determined upon the evidence presented to you in Court and these instructions and in fixing damages and determining the amount of just compensation to which the owners of each tract here involved are entitled, such amount cannot exceed the highest or be less than the lowest value which has been testified to as to each tract, but you may find such value to be any sum within the range of these figures which you find from the evidence as the fair market value of such parcel at the time of the taking thereof."

Expert witnesses on behalf of the Government testified as to their opinion of the amount of severance damage. One placed the amount at $940 and the other at $800. One witness placed the severance damage at $2.00 per acre for the remaining land of appellant, while the other placed the severance damage at $1.50 per acre. They apparently arrived at the total sum by multiplying the estimated damage per acre by the number of acres. The Government witnesses, however, were in error as to the number of contiguous acres owned by the appellant which were not included in the condemnation proceedings. There were in fact only 160 acres. Applying the estimated damage per acre this would make the amount of damage $320, while the jury awarded $480 severance damage. The jury was not required by instruction or otherwise to adopt the exact amount testified to by any of the witnesses. On this question the court instructed that:

"The opinions of expert witnesses are admissible in evidence and are to be given such weight and value as you think are right and proper under all of the circumstances. You are not bound by the opinions of the experts; their testimony is purely advisory."

The court also instructed generally that the jury...