Sayers v. City of Mobile, 1 Div. 176

• Decision Date: 28 May 1964
• Docket Number: 1 Div. 176
• Citation: 276 Ala. 589,165 So.2d 371,9 A.L.R.3d 283
• Parties: , 9 A.L.R.3d 283 J. E. SAYERS v. CITY OF MOBILE.
• Court: Alabama Supreme Court

Page 371

165 So.2d 371

276 Ala. 589, 9 A.L.R.3d 283

J. E. SAYERS v. CITY OF MOBILE.

1 Div. 176.

Supreme Court of Alabama.

May 28, 1964.

Tonsmeire & McFadden, Mobile, for appellant.

Wm. R. Lauten and Peter J. Palughi, Mobile, for appellee.

SIMPSON, Justice.

This is the second appeal in the case, both from a judgment of the Circuit Court of Mobile County, granting the City's motion for a new trial in a condemnation case.

The following statement of the case taken from the prior decision reported at 274 Ala. 77, 145 So.2d 807, will be sufficient for an understanding of the background of the case:

'The case came to the Circuit Court on appeal by the condemnee from an order of condemnation entered in the Probate Court of Mobile County. In the Circuit Court the cause came on for trial before Judge Douglas Standard without a jury. On November 16, 1960, Judge Stanard rendered a judgment wherein the subject lands were ordered condemned and J. E. Sayers, the condemnee, was awarded damages in the sum of $137,150.

'Judge Stanard was succeeded in office by Judge Daniel T. McCall, Jr., on November 18, 1960.

'The condemnor, the City of Mobile, filed a motion for a new trial on December 9, 1960. On that date the presiding judge of the circuit, Honorable Robert T. Ervin, Jr., ordered that a hearing on the motion for new trial be had before Judge McCall * * *'.

The prior appeal resulted in a reversal of Judge McCall's judgment granting a new trial because it did not appear that the evidence taken on the trial of the case had been re-introduced on the hearing of the motion for new trial. The case was remanded and from the judgment granting the new trial after remandment, this second appeal has been taken by the condemnee.

It is first appropriate to point out that we are dealing with a case where the new trial was granted by a judge other than the one who tried the case. In this situation there is no presumption to aid the judgment on the motion. As recently as March 19, 1964, this court stated the rule:

'It is to be remembered that this case was tried by the court without a jury. In such a trial, it seems axiomatic that the decision of the court has the effect of the verdict of a jury. Beasley v. Beasley, 256 Ala. 647, 649, 57 So.2d 69.

'In the case at bar, the new trial was not granted by the judge who tried the case and heard and saw the witnesses testify. At most, the judge hearing the motion could read, or have read to him, a transcription of the evidence given ore tenus on the original trial. * * * In reviewing the sufficiency of the evidence to sustain the verdict, the judge hearing the motion did not have the benefit of observing the witnesses, and there is no reason known to us why there should be any presumption that his ruling on the sufficiency of the evidence is correct. He was no better advantaged than the appellate court in reviewing the evidence. It is, therefore, our duty to review the sufficiency of the evidence to sustain the judgment [on the original trial] for defendant without presumption in favor of the ruling granting the new trial. On the contrary, we should indulge the presumption that the judge who heard the evidence ore tenus on the original trial decided correctly. As already stated, his decision is like the verdict of a jury.

'The rule applicable here has been stated as follows:

"* * * But when there is evidence on both sides, or some evidence to support the verdict, it should not be set aside, because it may not correspond with the opinion of the court as to the weight of the testimony, or because it is against the mere preponderance of the evidence * * *.' Cobb v. Malone & Collins, 92 Ala. 630, 635, 9 So. 738, 740.' National Security Insurance Company v. Elliott, 276 Ala. 353, 162 So.2d 449.

We must therefore look to the evidence to determine whether or not Judge Stanard's judgment was supported by the evidence. It is not questioned that the City had the right to condemn the land. All of the evidence adduced at the trial concerned the value of the lands before and after the taking and the damages to which the defendant, condemnee, was entitled.

The City's motion for new trial contained 32 grounds which can be reduced to four points:

1. That the verdict was excessive.

2. That the verdict was contrary to the great preponderance of the evidence.

3. The verdict did not allow evidence of enhancement in that the verdict did not consider the drainage canal a part of the highway project.

4. Judge Stanard allowed evidence of sales to be introduced over objection which sales were not comparable.

We shall consider these, although not necessarily in the order stated.

The land involved consisted of some 55 acres lying between Cottage Hill Road and Pleasant Valley Road within the city limits of Mobile. The property fronts a new Belt Line Highway.

The canal for which the property was condemned takes about one-fifth of the tract of land and divides it into two parcels, leaving approximately 18 acres east of the canal and a larger 27-acre tract west of the canal. Twenty acres of the land remaining is being used as a temporary spoil easement for two years. The record discloses that the city presented on expert witness to testify as to the value of the property. The land owner presented three experts to testify on the same subject. All of the expert witnesses agreed that the land owner lost the value of the 11 acres actually taken and suffered a diminished value with regard to the 27 acres remaining west of the canal.

The witness who testified for the City admitted that he appraised the property for residential purposes and did not consider its value for commercial purposes, although conceding that the property would be more valuable for commercial purposes. Appellant's...