Southern Elec. Generating Co. v. Leibacher

• Decision Date: 12 March 1959
• Docket Number: 7 Div. 394
• Citation: 269 Ala. 9,110 So.2d 308
• Court: Alabama Supreme Court
• Parties: SOUTHERN ELECTRIC GENERATING COMPANY v. J. H. LEIBACHER, Sr.

Page 308

110 So.2d 308

269 Ala. 9

SOUTHERN ELECTRIC GENERATING COMPANY v. J. H. LEIBACHER, Sr.

7 Div. 394.

Supreme Court of Alabama.

March 12, 1959.

Karl C. Harrison, Columbiana, and Martin & Blakey, John Bingham and Harold A. Bowron, Jr., Birmingham, for appellant.

Frank Bainbridge, Birmingham, and Handy Ellis, Columbiana, for appellee.

LAWSON, Justice.

This is a condemnation proceeding brought by Southern Electric Generating Company, a corporation, in the Probate Court of Shelby County against J. H. Leibacher, Sr., and other property owners to condemn certain lands to be used in the construction and operation of a steam electric generating plant. As to Leibacher's land, the award of the commissioners in the probate court was $4,000. An order of condemnation was entered accordingly. Leibacher appealed to the Circuit Court of Shelby County and requested trial by a jury. The jury returned a verdict, fixing the amount of Leibacher's compensation at $11,000. Judgment followed the verdict. After a judgment was entered overruling its motion for a new trial, Southern Electric Generating Company, sometimes referred to hereinafter as Southern Electric, appealed to this court.

In the circuit court Leibacher denied that Southern Electric had the right to condemn his property and took the position that the determination of that question was for the jury.

On an appeal to the circuit court from an order of condemnation entered in the probate court the trial is de novo. § 17, Title 19, Code of 1940. The condemnor's right to condemn as well as the amount of damages and compensation may be put in issue in the circuit court. The right to condemn is to be determined by the court without the aid of a jury, while the amount of damages and compensation to be assessed is for the jury, where a jury trial is properly requested. § 235, Constitution of 1901; City of Birmingham v. Brown, 241 Ala. 203, 2 So.2d 305; Alabama Power Co. v. Thompson, 250 Ala. 7, 32 So.2d 795, 9 A.L.R.2d 974; Moore v. City of Mobile, 248 Ala. 436, 28 So.2d 203.

The trial court correctly ruled that the question as to Southern Electric's right to condemn was for the court's determination and that Southern Electric had the right to condemn the property here involved. Those rulings are not challenged here by cross appeal or cross-assignments of error.

Over objection the trial court required Southern Electric to present its proof as to its right to condemn in the presence of the jury. This action of the trial court is assigned as error.

Southern Electric's right to condemn was a preliminary question which the trial court should have determined outside of the presence of the jury. There was no such preliminary determination and the evidence as to Southern Electric's right to condemn was presented to the jury along with the evidence bearing on the amount of compensation to which Leibacher would be entitled. After the conclusion of the presentation of the evidence relating to both issues, the trial court instructed the jury that the court had concluded that Southern Electric was entitled to condemn and then instructed the jury that the amount of compensation to be awarded was for its determination.

The Leibacher tract here involved contains 44 acres of unimproved, woodland situated on the outskirts of Wilsonville in Shelby County. There is only one house on the property. Leibacher built the house and occupies it from time to time. He does not reside on the property. Yellow Leaf Creek, a stream which seems to be of considerable size, runs along or through some of the land. As far as this record discloses the 44 acre tract is all of the land owned by Leibacher.

Leibacher was entitled to the fair or reasonable market value of his land as of the day of its taking based on the use to which it could be most advantageously put. Blount County v. McPherson, Ala., 105 So.2d 2d 117. For present purposes the parties 117. For present purposes the parties 1957. The fact that the land had been used for one purpose only, the growing of timber, did not prevent Leibacher from showing the adaptability of the land for other uses including the building and operation of fishing camps. He offered evidence going to show that the best use to which the land could be put was for the operating of fishing camps of the kind shown to be operated rather generally throughout the area.

In cases of this kind, the narrow issue for the jury's determination, the amount of the award to the landowners, should not be broadened nor the verdict of the jury influenced by the interjection of immaterial matters, especially matters calculated to be prejudicial. Whether or not the property is necessary or advisable, or whether more property is taken than necessary, and whether or not it is ever paid for or who pays for it, are not questions for the jury to consider nor to be brought before it in any way.

In the case now before us we can conceive of no reason for placing before the jury the fact that at the time the condemnation proceeding was commenced, Southern Electric's total authorized capital stock was $2,000,000; that on towit August 17, 1956, Southern Electric sold for a cash consideration of $100 per share a total of 2500 shares of common stock to Alabama Power Company and 2500 shares of such stock to Georgia Power Company and had previously paid to Alabama Property Company (its agent for acquiring land options, etc.), over $200,000 for acquisition of plant sites and coal reserves; that a capital expenditure budget aggregating $1,324,349 had been adopted. Nor do we see why the jury should have been advised as it was on the cross-examination of Southern Electric's secretary, the connection between Alabama Power Company, Georgia Power Company, Alabama Property Company, Southern Services, Inc., Southern Electric and The Southern Company. Yet those matters came to the jury's attention as a result of the requirement that Southern Electric present before the jury its evidence going to show its right to condemn. Most of the facts referred to above were included in documents which Southern Electric was called upon to produce in order to show its right to condemn.

Some of the documents were read to the jury by counsel for Leibacher with the consent of counsel for Southern Electric. Such consent is said to constitute a waiver of any error in requiring such evidence to be presented before the jury. We cannot agree. The documents were, in effect, required to be placed in evidence before the jury and Southern Electric would have been in a difficult position with the jury if its counsel had refused the request made upon them by counsel for Leibacher for the contents of the documents to be read to the jury.

It is argued by appellee that because the amount of the award was well within the range of the evidence, no injury can be said to have resulted to appellant as a result of such matters being introduced in evidence at the jury trial.

The award of $11,000 was less than the values fixed by Leibacher and his witnesses. Leibacher testified that the fair market value of his 44 acres of land was $22,000. The values fixed by his other witnesses ranged from $35,000 down to $15,400.

On the other hand, the jury's award was considerably in excess of the highest estimate of value placed on the Leibacher tract by appellant's witnesses, $4,400.

The appellant was naturally interested in getting as large an award for his land as possible, land which he did not seem anxious to lose. All of his witnesses except one owned property which was subject to condemnation by Southern Electric for the purpose of building the same generating plant. The witness who was the one exception estimated the value of the Leibacher lands at $35,000. As to this witness we have some doubt as to the correctness of the court's ruling that he was shown to possess sufficient familiarity with the land and its value to express an opinion as to its value.

In view of the nature of the opinion evidence offered by Leibacher concerning the value of his land we are unable to affirm that the evidence going to show the size, ownership, financial worth and corporate affiliation of Southern Electric and the amount of money set aside for obtaining its property was without injury to appellant.

This court recognizes what every trial lawyer knows, i. e., that it is highly prejudicial to a defendant for the members of a jury to be improperly informed that a defendant is really a very wealthy person or that some wealthy corporation would have to pay the verdict rather than defendant, and thus invite them to be liberal with someone else's money. We think the same is true in a case of this kind.

When a case is tried by a jury, the members of the jury are entitled to receive for their consideration the relevant evidence offered by all the parties. They should not receive any irrelevant or illegal evidence.

The evidence in regard to the right to condemn was entirely irrelevant to the issue for the jury's determination, namely, the amount of the just compensation to be awarded Leibacher. As we have indicated, we cannot say it was not prejudicial. True it was introduced by appellant or was elicited from appellant's secretary on cross-examination. But it was placed before the jury only because of the requirement of the trial court that evidence concerning appellant's right to condemn had to be presented before the jury which was to fix the amount of the award. We are constrained to the conclusion that appellant's assignments of error 1 and 2 are well taken and that the judgment of the trial court must be reversed.

Dewey Bolton, a witness for the plaintiff, testified that in his opinion the reasonable market value of the condemned lands was $3,300. On cross-examination he was permitted to say without objection that in fixing that value he had not taken into consideration any taxes the property owner might have to pay to the Federal government as a result...