State Highway Commission v. Randle

• Decision Date: 28 February 1938
• Docket Number: 32996
• Citation: 178 So. 486,179 So. 273,180 Miss. 834
• Court: Mississippi Supreme Court
• Parties: STATE HIGHWAY COMMISSION v. RANDLE et al

178 So. 486

179 So. 273, 180 Miss. 834

STATE HIGHWAY COMMISSION v. RANDLE et al

No. 32996

Supreme Court of Mississippi

February 28, 1938

(Division A.)

1. EMINENT DOMAIN.

In proceeding to condemn land for highway which cut off triangular piece of farm, admission of testimony that owner was financially unable to build fences required along highway was improper.

2. EMINENT DOMAIN.

In proceeding to condemn land for a highway across a 340-acre tract, where irrelevant testimony that property was of historical interest, that it had been used as a nursery in 1880, that some of structures were erected for housing of slaves, that construction of highway had caused squirrels to disappear and had taken away quietness, and that owner was financially unable to build fence required along highway entered into opinion of owners' witnesses concerning value of land, reversal of verdict based thereon was required unless remittitur was entered.

3. EMINENT DOMAIN.

$2,734.66 for damages from construction of highway across 340-acre tract of land, 35 acres of which were in cultivation and lay in triangular piece cut off from main portion by highway where improvements consisted of a two-story, six or seven room house, partly constructed of logs prior to Civil War barns, outhouses, a fence, a pear and pecan orchard, a large number of Japonica trees and ornamental shrubs, was excessive in the amount of $1,434.66.

ON SUGGESTION OF ERROR. (Division A. Feb. 28, 1938.) [179 So. 273. No. 32996.]

1. APPEAL AND ERROR. An appellant cannot complain of error in its own instruction. 2. APPEAL AND ERROR. Plaintiff could not complain that instructions presented two different formulas for measuring damages, where defendants' instruction was correct. 3. APPEAL AND ERROR. In eminent domain proceeding decision requiring remittitur by defendants because of consideration of incompetent testimony by jury was adhered to on defendants' suggestion of error, whereby defendants contended that their instruction as to damages was correct and that plaintiff could not complain that instructions presented two different formulas for measuring damages, since decision was not based on conflict in instructions. 4. APPEAL AND ERROR. The admission of evidence which on its face appeared inadmissible for any purpose was reviewable, notwithstanding that only general objections were interposed.

Division A

January 31, 1938

APPEAL from the circuit court of Wayne county HON. ARTHUR G. BUSBY, Judge.

Eminent domain proceeding by the State Highway Commission to condemn for highway purposes land owned by Mrs. Daisy A. Randle and others. Judgment for the defendant landowners, and plaintiff appeals. Judgment affirmed on condition of entry of a remittitur, and otherwise reversed and remanded.

On suggestion of error. Suggestion of error overruled.

Judgment affirmed on condition of entry of remittitur and otherwise reversed and remanded. Suggestion of error overruled.

E. R. Holmes, Jr., Assistant Attorney-General, for appellant.

Evidence was admitted over objection as to improper elements of damage. The true rule eminent domain suit is the difference between the market value of the owner's property before the and after the taking. This rule was as laid down in City v. Higgins, 81 Miss. 376, 33 So. 1, and followed in Schlicht v. Clark, 114 Miss. 354, 75 So. 131.

The fair market value is the rule applicable to eminent domain proceedings.

20 C. J. 727, 732; State Highway Dept. v. Blackburn, 172 Miss. 554, 160 So. 73; Yazoo, etc., Railroad Co. v. Jennings, 90 Miss. 93, 43 So. 469.

In the instant case, the damages are speculative, not only as to what might happen in the future, but also as to what did happen in the past.

As to the facts with reference to the ruining of the beauty of the place, the destroying of its seclusion and privacy and the running off of the wild life on the farm, this court, in the case of State Highway Commission v. Campbell, 173 Miss. 427, 166 So. 674, said, in speaking of the testimony of the witnesses there: "It was made definitely to appear in the examination of these witnesses that the main element in the damages considered by them was the detriment to the property simply on account of the main or general fact of the relocation of the highway adjacent to the property, hurtful to its quietude and seclusion."

State Highway Commission v. Brown, 176 Miss. 23, 169 So. 277.

The verdict of the jury was excessive.

The damages recovered in any case must be shown with reasonable certainty, both as to their nature and in respect to the cause from which they proceed.

Kress & Co. v. Sharp, 156 Miss. 693, 126 So. 650, 68 A. L. R. 157.

J. W. Backstrom, of Leakesville, Frank Clark, of Waynesboro, and F. B. Collins, of Laurel, for appellees.

The first assignment of error is the overruling of the appellant's objection to testimony offered on behalf of appellees as shown in the record. There are numerous objections made by appellant, practically all of which are general objections, no grounds assigned for the objection. The rule laid down by this court as to general objections is well established, beginning with the case of Bessler Movable Stairway Co. v. Bank of Leakesville, 106 So. 445, 140 Miss. 537, down to the case of Jackson v. State, 140 So. 683, 163 Miss. 235.

The grounds of this rule are that objections to evidence should be specific, first, so that the party introducing it may remove the objection, if he can do so, and that the court may be enabled to rule intelligently thereon; and, second, in order that an appellant may be confined in the Supreme Court to the same ground of objection made by him in the court below, the Supreme Court being a court of appellate jurisdiction only. The one exception to this rule is that when "on the face of the evidence, in its relation to the rest of the case, there appears no purpose whatever for which it could have been admissible, then a general objection, though overruled, will be deemed to have been sufficient.

Bessler Movable Stairway Co. v. Bank of Leakesville, 140 So. 445, 140 Miss. 537; Sylvania Ins. Co. v. Simmons, 131 So. 94, 158 Miss. 596; Jackson v. State, 140 So. 683, 163 Miss. 235.

In considering valuation in condemnation proceedings the value is based on the most advantageous use.

10 R. C. L. 113.

In assessing damages all of the uses to which property is calculated by its nature and situation to serve may be considered.

City of Jackson v. Wright, 119 So. 317, 151 Miss. 829.

The appellant made a motion for a new trial upon the sole ground that "the verdict of the jury is contrary to the overwhelming weight of the evidence." There was no motion made to set aside the verdict because it was excessive, and in the absence of such a motion the appellant cannot complain of the amount of the verdict. The verdict was not excessive, and the motion to set it aside did not complain of it being excessive, but that it was against the overwhelming weight of the evidence, and if it was not excessive and was against the overwhelming weight of the evidence, then naturally the complaint can only be made that the verdict should not have been for the appellees, but the verdict should have been for the appellant. The court correctly and properly instructed the jury that the appellees were entitled to recover damages.

A judgment will not be reversed because the verdict is not sustained by the evidence, unless the verdict is clearly wrong or contrary to law or the jury are not governed by the evidence.

Leflore v. Justice, 1 Sm. & M. 381; Alexander v. Puryear, 48 Miss. 420; Smokey v. Johnson, 4 So. 788; I. C. R. R. Co. v. Schultz, 39 So. 1105, 87 Miss. 321; I. C. R. R. Co. v. Smith, 59 So. 87, 102 Miss. 276; F. W. Woolworth Co. v. Volking, 100 So. 3, 135 Miss. 410.

A verdict will not be disturbed upon appeal unless it is clearly and palpably contrary to the weight of the evidence.

King v. Rowan, 34 So. 325, 82 Miss. 1.

It is not argued by appellant that the verdict in this case was actuated by prejudice, passion or corruption, and it is the general rule that verdicts, especially in actions in tort will not be set aside unless they are so extravagant as to show prejudice, passion and corruption.

Bell v. Morrison, 27 Miss. 68; N. O. J. & G. N. R. Co. v. Hearst, 36 Miss. 660; N. O. J. & G. N. R. Co. v. Statham, 42 Miss. 607; Miss. Central R. R. Co. v. Carruth, 51 Miss. 77.

Unless a verdict evinces passion and prejudice the Supreme Court must accept the verdict.

Gulf Refining Co. v. Miller, 121 So. 482, 153 Miss. 741.

The verdict in this case under the evidence is not excessive, but is a very modest judgment. The jury would have been warranted in returning a verdict of $ 4,000.00. The finding of the jury in this case is not against the overwhelming weight of the evidence.

Smith, C. J., McGehee, J., delivered the opinion of the court on suggestion of error.

OPINION

Smith, C. J.

This is an eminent domain proceeding in which the appellant seeks the condemnation; for highway purposes, of land owned by the appellees, and the only question for determination is the amount of the damages therefor to which the appellees are entitled.

In the eminent domain court the appellees were awarded $ 1,800, from which the appellant prosecuted an appeal to the court below, which tried the case de novo, resulting in a verdict and judgment in favor of the appellees for $ 2,734.66, from which this appeal is prosecuted.

The main assignments of error are that the court below erred: (1) In admitting evidence introduced by the appellees; and (2) that the damages are excessive....