State Highway Com'n of Mississippi v. Smith

• Decision Date: 22 April 1987
• Docket Number: No. 56369,56369
• Citation: 511 So.2d 881
• Parties: STATE HIGHWAY COMMISSION OF MISSISSIPPI v. Marven M. SMITH, et al.
• Court: Mississippi Supreme Court

Page 881

511 So.2d 881

STATE HIGHWAY COMMISSION OF MISSISSIPPI v. Marven M. SMITH, et al.

No. 56369.

Supreme Court of Mississippi.

April 22, 1987.

Rehearing Denied Sept. 16, 1987.

Darryl A. Hurt, Hurt & Hurt, Lucedale, for appellant.

William T. Bailey, Sr., Lucedale, for appellees.

Before WALKER, C.J., and PRATHER and SULLIVAN, JJ.

SULLIVAN, Justice, For the Court:

On July 20, 1984, the State Highway Commission of Mississippi filed an application for special court of eminent domain seeking to condemn 3.43 acres of real property owned by Marven M. Smith, et al, in George County, Mississippi, for the construction of two new lanes on U.S. Highway No. 98 in State Project No. 79-0014-03-034-10. The court was organized in George County, where the subject property lay. The trial resulted in a jury verdict and judgment in the sum of $21,500.00.

The State Highway Commission, aggrieved at the decision of the jury and the judgment of the court, appeals to this Court for relief.

I.

WHETHER THE LOWER COURT ERRED IN ALLOWING THE DEFENDANT,

MARVEN M. SMITH, TO TESTIFY TO SPECULATIVE LOSS OF

PROFITS AND LOSS OF BUSINESS AS A RESULT

OF THE CONDEMNATION OF HIS

PROPERTY?

The Commission contends that the testimony of Marven Smith regarding loss of profits is reversible error due to the uncertainty and speculation involved in the future of any business. With this we agree. Furthermore, we find the testimony of Marven Smith regarding future profits to be even more speculative because Mr. Smith did not even have a business located on the property condemned on July 20, 1984, which was the filing date of the application for special court of eminent domain.

We have repeatedly spoken to the inadmissibility of evidence concerning yield and production of income from property as an element of damage. Mississippi Highway Commission v. St. Catherine Gravel Co., 380 So.2d 231 (Miss.1979); Green Acres Memorial Park, Inc. v. Mississippi State Highway Commission, 246 Miss. 855, 153 So.2d 286 (1963); Mississippi State Highway Commission v. Rogers, 236 Miss. 800, 112 So.2d 250 (1959). In Rogers, we summarized our familiar rule:

"But testimony of profits derived from a business conducted on the condemned property is rejected as inadmissible. The reason for excluding such testimony is that the profits from a business are extremely uncertain, highly speculative, and depend on many contingencies aside from the use to which the land taken is being put. These profits depend a great deal on capital invested, general business conditions, the skill and ability of the proprietor, the manner in which he conducts his business, and many other elements. One man will often succeed where another will fail. Furthermore, neither the business nor its profits are acquired in eminent domain."

112 So.2d at 252-253.

Furthermore, "anticipated future profits are objectionable not only upon the grounds stated with respect to past profits, but also on the ground that such profits are necessarily conjectural. Such profits depend on so many contingencies that an accurate valuation cannot be based thereon." Green Acres Memorial Park, Inc. v. Mississippi State Highway Commission, 246 Miss. 855, 866, 153 So.2d 286, 291 (1963). See also, Mississippi State Highway Commission v. McCardle, 243 Miss. 111, 137 So.2d 793 (1962).

In reliance on the authorities presented above, we find reversible error on this point. While we reverse and remand on the issue presented above we find it necessary to address other questions posed herein, in order to provide guidance to the attorneys and the lower court in the next trial of this matter.

We find that the lower court did not err in allowing Frank Roberts to testify as an expert witness in the field of real estate appraisal. We base our decision on the authority presented in Trustees of Wade Baptist Church, et al v. Mississippi State Highway Commission, 411 So.2d 761 (Miss.1982), and more recently in Mississippi...