South Carolina State Highway Dept. v. Townsend, 20087

Decision Date20 August 1975
Docket NumberNo. 20087,20087
Citation265 S.C. 253,217 S.E.2d 778
CourtSouth Carolina Supreme Court
PartiesThe SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Appellant, v. J. R. TOWNSEND (Tract 18), Respondent.

Atty. Gen. Daniel R. McLeod and Deputy Atty. Gen. Joseph C. Coleman, Columbia, for appellant.

J. D. Todd, Jr., Greenville, and Felix L. Finley, Jr., Pickens, for respondent.

MOSS, Chief Justice:

The South Carolina State Highway Department, the appellant herein, instituted this condemnation proceeding against J. R. Townsend, the respondent herein, to obtain a right-of-way for highway purposes over a lot of land owned by him. The property is located upon the Main Street in the City of Easley on State Highway 93 and U.S. Highway 123, and was used by the landowner as a site for his motor vehicle dealership. The property sought to be taken for highway purposes was off the front of the property, measuring 160 feet by approximately 16.2 feet or 2600 square feet.

This case was heard De novo pursuant to Section 33--139 of the Code, before the Honorable Francis B. Nicholson, Presiding Judge, and a jury, resulting in a verdict for the landowner in the amount of $51,000.

Testimony adduced at the trial as to the value of the land taken was fixed by the appellant's appraiser at $17,500, by the landowner himself at $125,000, and by his appraiser at $63,340.

The record shows that the respondent offered the premises in evidence. Thereafter, the jury was sent to view the premises under the authority contained in Section 38--302 of the Code, which provides:

'The jury in any case may, at the request of either party, be taken to view the place or premises in question or any property, matter or thing relating to the controversy between the parties when it appears to the court that such view is necessary to a just decision, * * *'

It is admitted that the trial judge did not view the premises, nor did he accompany the jurors when they viewed the premises, nor was he requested to do so by the parties to this action.

Upon the rendition of the verdict, in the amount heretofore stated, the appellant moved for a new trial absolute and in the alternative for a new trial Nisi. The motion for a new trial absolute was on the ground that the verdict was so excessive as to warrant the conclusion that the jury was moved by passion, prejudice, or other improper considerations. The motion for a new trial Nisi was on the ground of the excessiveness of the verdict.

In refusing the motion for a new trial absolute, the trial judge stated that there was nothing in the trial to indicate the conclusion that the jury was moved by passion, prejudice, or other improper considerations in arriving at its verdict. The trial judge also refused the motion for a new trial Nisi, assigning as his reason therefor the following:

'The motion of the Department for new trial Nisi has, however, given me serious concern because had I been the trier of fact, and if a viewing of the scene did not otherwise produce a change of impression, my verdict would have been at a lesser figure than that of the jury. This Court has consequently pondered the role of the jury and its responsibilities as to judges of the weight of the evidence, coupled with the effect to be given to the jury's viewing of the scene. I have concluded, as a matter of law, that in this type case, where the jury alone goes to view the scene of condemned property and the Trial Judge did not, and was not so requested, to accompany the jury for the same viewing, then so long as the verdict is within the range of valuations expressed in the form of competent and admissible evidence, the Trial Judge is limited in reaching any conclusion of excessiveness.'

The appeal here by the State Highway Department is from the order of the trial judge denying its motion for a new trial absolute and a new trial Nisi.

We conclude that the trial judge committed no error in refusing the motion of the appellant for a new trial absolute upon the ground that the verdict was so excessive as to warrant the conclusion that the jury was moved by passion, prejudice, or other improper consideration.

We come now to the question of whether there was error on the part of the trial judge in refusing the motion for a new trial Nisi on the grounds stated by him.

The order of the trial judge refusing the appellant's motion for a new trial Nisi indicates that it was his view that the verdict was excessive, but that he was without legal authority to reduce the verdict because the jury had viewed the premises and he had not.

An order for a new trial Nisi is one whereby a new trial is granted unless the party opposing it shall comply with a condition prescribed by it. The motion for a new trial Nisi because of excessiveness of the verdict contemplates not the striking down of the verdict In toto, but remission of part of it and the granting of a new trial in...

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11 cases
  • Vinson v. Hartley
    • United States
    • South Carolina Court of Appeals
    • October 14, 1996
    ...evidence does not justify the verdict. This ruling has also been termed granting a new trial upon the facts. S.C. Highway Dept. v. Townsend, 265 S.C. 253, 217 S.E.2d 778 (1975). The effect is the same as if the jury failed to reach a verdict. The judge as the thirteenth juror "hangs" the ju......
  • Gastineau v. Murphy
    • United States
    • South Carolina Court of Appeals
    • May 7, 1996
    ...evidence does not justify the verdict. This ruling has also been termed granting a new trial upon the facts. S.C. Highway Dept. v. Townsend, 265 S.C. 253, 217 S.E.2d 778 (1975). The effect is the same as if the jury failed to reach a verdict. The judge as the thirteenth juror "hangs" the ju......
  • Housing Authority of City of Charleston v. Olasov, 0251
    • United States
    • South Carolina Court of Appeals
    • September 5, 1984
    ...County, 249 S.W.2d 636 (Tex.Civ.App.1952); Cade v. U.S., 213 F.2d 138 (4th Cir.1954); see also South Carolina State Highway Department v. Townsend, 265 S.C. 253, 217 S.E.2d 778 (1975). Thirdly, even if the Board based its award upon the expert appraiser's testimony, we cannot say that was e......
  • Norton v. Norfolk Southern Ry. Co.
    • United States
    • South Carolina Court of Appeals
    • June 5, 2000
    ...not justify the verdict. This ruling has also been termed granting a new trial upon the facts." Id. (citing S.C. State Highway Dept. v. Townsend, 265 S.C. 253, 217 S.E.2d 778 (1975)). However, because the motion in this case forced the trial judge to weigh the evidence, the question is one ......
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