State ex rel. State Highway Commission v. Belvidere Development Co.
| Decision Date | 08 September 1958 |
| Docket Number | No. 1,No. 46444,46444,1 |
| Citation | 315 S.W.2d 781 |
| Parties | STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff- Appellant, v. BELVIDERE DEVELOPMENT COMPANY et al., Exceptions of Marvin L. Smart and Gladys C. Smart, Defendants-Respondents |
| Court | Missouri Supreme Court |
Robert L. Hyder, Minor C. Livesay, Ralph H. Duggins, Jefferson City, for appellant.
Clay C. Rogers, Jack B. Robertson, Rogers, Field, Gentry & Jackson, Kansas City, for respondents.
VAN OSDOL, Commissioner.
This is a condemnation case. Commissioners, duly appointed, awarded defendants-respondents, landowners-condemnees, Marvin L. and Gladys C. Smart, $26,000 for the taking of part of their property situate in Jackson County, to which award both plaintiff-condemner (appellant) and defendants filed exceptions. Subsequently, upon trial in the Circuit Court by a jury a verdict was returned awarding defendants $9,275. Defendants had introduced evidence tending to support an award of as much as $57,550, or more. The trial court sustained defendants' motion for a new trial on the specified ground that the verdict was against the weight of the evidence. Plaintiff has appealed.
The record affirmatively shows the jury's award, $9,275, was more than $7,500 less than an amount to which defendants contended they were entitled. This court has appellate jurisdiction of the cause. Const. Art. V, Sec. 3, V.A.M.S.; State ex rel. Chariton River Drainage Dist. v. Montgomery, Mo.Sup., 275 S.W.2d 283.
This proceeding was instituted by plaintiff to acquire property in the construction of a four-lane, limited-access highway, now designated as 'State Highway Route U. S. 71, Jackson County,' from Route 150 northwardly to Hickman Mills. The plan also contemplates an adjacent 36-foot outerroadway east of the improved four-lane highway, that is, west of the land of defendants which remains after the taking and to which outer-roadway owners of abutting properties to the eastward are to have unlimited access.
The property belonging to defendants, as indicated, lies on the east side of original U. S. Highway 71 and extends 185.5 feet north and 185.5 feet south of intersecting 136th Street, a 50-foot, east-west street which, according to plan, is to connect with the outer-roadway. Defendants' property extends eastwardly from original U. S. Highway 71 several hundred feet, and is 7.33 acres in total area. The west 250 feet of defendants' property is appropriated for the stated improvement and is of the total area of 2.423 acres; and there is a contemplated additional easement extending more eastwardly over an additional 0.053 of an acre for a drainage outlet.
The west 300 feet of defendants' property had been 'zoned for business,' so that after the taking there remains commercial frontage fifty feet in depth and the remainder of the tract which had been 'zoned for residential.'
The evidence introduced by the parties, plaintiff and defendants, on the issue of the amount of the reasonable compensation for the taking was voluminous, varied greatly, and was conflicting. Plaintiff-condemner introduced evidence tending to support an award of from $2,873 to $14,466, and, as stated, defendants-condemnees imtroduced evidence tending to support an award of as much as $57,550, or more.
Initially, plaintiff (appellant) contends the trial court delegated to the jury the authority of weighing the evidence by giving defendants' Instruction No. 6, which instruction advised in part that, 'you (the jury) are the sole judges of the credibility of the witnesses and of the weight of the evidence and the value you will attach to each witness's testimony. * * *'
Plaintiff argues that, 'having delegated' to the jury the authority to weigh the evidence, the trial court's action in setting aside the verdict and awarding a new trial (on the specified ground that the verdict was against the weight of the evidence) was contrary to and in violation of the law as expressed in Instruction No. 6. Plaintiff says that, in giving the instruction, the trial court Plaintiff cites cases in which it is held that the power of the trial court to grant a new trial is discretionary only as to questions of fact and matters affecting the determination of issues of fact--there is no discretion in the law of a case, nor can there be an exercise of sound discretion as to the law of a case. For examples see Schipper v. Brashear Truck Co., Mo.Sup., 132 S.W.2d 993, 125 A.L.R. 674; Mavrakos v. Mavrakos Candy Co., 359 Mo. 649, 223 S.W.2d 383; Cooper v. 804 Grand Bldg. Corp., Mo.Sup., 257 S.W.2d 649. These cited cases have no particular application here. In these cases this court was considering questions of trial courts' actions in granting new trials upon some specified or assigned grounds of error pertaining to the law of the respective cases. When the judicial act of granting a new trial is 'directed solely to a question of law, and the act is erroneous, it does not fall within the rule of the exercise of sound judicial discretion,' for there is no discretion as to the law. Schipper v. Brasherar Truck Co., supra ; Mavrakos v. Mavrakos Candy Co., supra.
Plaintiff has misconceived the province and power of the trial court when, acting in the exercise of its discretion, it sets aside a verdict and awards a new trial on the ground the verdict was against the weight of the evidence. It is true that this discretionary ground is a 'legal' ground for awarding a new trial in the sense that the trial court has the inherent legal power to award a new trial on such discretionary ground. Mavrakos v. Mavrakos Candy Co., supra. But, in the exercise of this discretionary power, the trial court is not treating with the question of the law of a case. The trial court is weighing conflicting evidence on the factual issues, and if the trial judge believes the verdict of a jury is against the weight of the evidence, he has the duty to direct the entry of the trial court's order granting a new trial.
In giving Instruction No. 6, an instruction on the credibility of the witnesses, the trial court in the prefatory sentence we have quoted was apparently advising the jury of the jurors' trial function, vested exclusively in them, of judging the credibility of witnesses and the weight and value of the testimony. In making up their verdict it is the jurors' exclusive province to weigh the evidence introduced on the factual issues submitted to them. Of course, the trial court in giving Instruction No. 6 did not delegate or surrender to the jury or waive the trial court's discretionary power, after verdict, to grant one new trial on the ground the verdict was against the weight of the evidence. And the trial court, by this exercise of discretion, did not 'reverse its...
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