State Highway Commission v. Arms, 12404

• Decision Date: 04 January 1974
• Docket Number: No. 12404,12404
• Citation: 163 Mont. 487,518 P.2d 35
• Parties: The State of Montana, Acting By and Through the STATE HIGHWAY COMMISSION of the State of Montana, Plaintiff and Appellant, v. Benton H. ARMS et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 35

518 P.2d 35

163 Mont. 487

The State of Montana, Acting By and Through the STATE HIGHWAY COMMISSION of the State of Montana Plaintiff and Appellant, v. Benton H. ARMS et al., Defendants and Respondents.

No. 12404.

Supreme Court of Montana.

Submitted Sept. 27, 1973.

Decided Jan. 4, 1974.

Harry C. Alley and James R. Beck, argued, Helena, for plaintiff and appellant.

Corette, Smith & Dean, Butte, Dolphy O. Pohlman, Jr., argued, Butte, Kendrick Smith, appeared, Butte, for defendants and respondents.

LeROY L. McKINNON, District Judge ^*.

This is a highway condemnation proceeding. Respondents' land is located near Divide, at the intersection of old U.S. Highway No. 91 and Montana Route No. 43. Located on the part nearest the highway is a structure containing a bar, living quarters and a cafe. Next to this is a small service station and at the rear of the property are three trailer pads with trailers and one small rental house. The State's taking removed the bar-cafe-living quarters building and the service station. The State paid respondents some $25,000 after negotiations. The briefs do not make clear the nature of the payment, but at least respondents were to accomplish some work-removal of buildings and installation of a water supply prior to a certain date-in return for the money.

At trial respondent Arms testified that his compensation for the taking should be $78,000. His expert, Bender, said $64,000. The State's experts, Hoover and Howe, testified to '19,650 and $22,873 respectively. Judge Freebourn's jury instruction #20 said that the jury could award no less than $25,000 as compensation, and #21 said the verdict could be no higher than $78,000, the highest valuation for Arms, and no less than $25,000, the amount of the lowest testimony offered by the State. The jury returned a verdict for $30,000. The Arms' made a motion for a new trial based on section 93-5603(6), R.C.M.1947. The motion was granted by Judge Freebourn and the State appeals that order.

The first issue concerns the discretion of the trial court in granting a new trial on the grounds that the evidence was insufficient to justify the verdict. The respondent cites the case of State Highway Comm'n v. Greenfield, 145 Mont. 164, 172, 399 P.2d 989, 993, wherein we stated:

'We have more recently considered this matter in Campeau v. Lewis, 144 Mont. 543, 298 P.2d 960, wherein we expressed our respect for the discretion of the trial judge and our reluctance to disturb his new trial ruling. We held there, however, that this court may distrub an order granting a new trial when it appears that there was 'substantial evidence' presented to support the verdict. Of course, these remarks are confined to those instances in which the new trial was granted for insufficiency of the evidence and not for errors of law.

'Our opinion in that case was that to grant a new trial in the face of 'substantial evidence' in support of the verdict was an abuse of discretion, and we might well have termed it, as we do here, a manifest abuse of discretion.'

The Court has consistently held that the evidence is not insufficient if it is substantial. Adami v. Murphy, 118 Mont. 172, 179, 164 P.2d 150, 153. In Adami, the Court quoting from Morton v. Mooney, 97 Mont. 1, 33 P.2d 262, held that 'substantial evidence could be defined as such 'as will convince reasonable men and on which...