State Road Commission v. Darrah

• Decision Date: 14 March 1967
• Docket Number: No. 12581,12581
• Court: West Virginia Supreme Court
• Parties: The STATE ROAD COMMISSION of West Virginia, etc., et al. v. J. M. DARRAH et al.

Page 408

153 S.E.2d 408

151 W.Va. 509

The STATE ROAD COMMISSION of West Virginia, etc., et al. v. J. M. DARRAH et al.

No. 12581.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 7, 1967.

Decided March 14, 1967.

Syllabus by the Court

1. It is error to give inconsistent instructions, even though one of them embodies a correct statement of law, inasmuch as the jurors in such circumstances are left to determine which statement of law is correct and inasmuch as it is impossible for a court later to determine upon what legal principle the verdict is based.

2. An instruction which tends to mislead or to confuse the jury is erroneous and should be refused.

3. When an erroneous instruction has been given to the jury by the court, the presumption is that the party over whose objection it was given was prejudiced thereby and the verdict will be set aside on account thereof, unless it clearly appears from the record that such party was not prejudiced by the giving of the instruction.

4. In an eminent domain proceeding, a nonexpert witness is not competent to express an opinion concerning the market value of the land taken or the damages to the residue, beyond benefits, unless he has some peculiar qualification or more knowledge in relation to the subject of such opinion than jurors are ordinarily supposed to have.

Anthony G. Halkias, Charleston, for plaintiffs in error.

W. Robert Hamlin, Philip A. Baer, Huntington, Milton J. Ferguson, Wayne, for defendants in error.

CALHOUN, President.

This case, on appeal from a final judgment of the Circuit Court of Wayne County, involves an eminent domain proceeding instituted in that court by the State Road Commission and Burl A. Sawyers, State Road Commissioner, petitioners in that proceeding, hereafter referred to in this opinion as the condemners, for the purpose of acquiring, for public highway purposes, 10.51 acres of land belonging to J. M. Darrah and Mary Lou Darrah, husband and wife.

In the trial of the case, the jury returned a verdict in favor of the landowners for the sum of $32,700. After giving credit for $10,400 previously paid to the landowners by the condemners, the trial court entered judgment in favor of the landowners for $22,300, plus interest and costs. From that judgment, the condemners have been granted the appeal to this Court.

Counsel for the condemners, by brief and oral argument, contends that the trial court erred in granting an instruction offered in behalf of the landowners and in admitting, and in not excluding, certain testimony given by Francis Peters, a witness for the landowners, in relation to damages resulting to the landowners from the taking. These two assignments of error present the primary questions for decision on this appeal.

Only two instructions were granted and read to the jury by the trial judge, one in behalf of the condemners, designated as State's Instruction No. 1, and one in behalf of the landowners, designated as Defendants' Instruction No. 1. State's Instruction No. 1 is rather long and comprehensive, dealing with various aspects of law, including burden of proof and credibility of witnesses. A portion of the instruction, stating principles for determining just compensation, is as follows:

'The Court instructs the jury that it is your duty to ascertain from the evidence in this case what will be a just compensation to the landowner for the real property taken and used for a right of way for the construction of the public road in question, and also what damages, if any, to the residue of said land, less any benefits that may be accrued to such residue by the construction of said highway.

'You are further instructed that just compensation means a fair and reasonable cash market value of said land actually taken, which is the price that property will bring if offered for sale by one who desires, but is not obligated to sell, and is purchased by one who is in no necessity of having it; that it is not a question of the value of the property to the State for use of a public road or the necessity of the State to have such land, nor its necessity to the owner; nor can the value of said property be enhanced or increased by an unwillingness on the part of the landowner to sell it, or because the State may need the same for use of a public road.

'You are further instructed that the true measure of damages to the residue of the landowner's property by reason of the construction of the said highway in question, from all of the evidence in the case, is the difference between the market value of the property claimed to be damaged thereby immediately before and immediately after the improvement was made. * * *.'

The correctness of State's Instruction No. 1 is not challenged on this appeal. In stating the proper measure of compensation, it conforms to prior decisions of this Court. Strouds Creek and Muddlety Railroad Co. v. Herold, 131 W.Va. 45, pt. 1 syl., 45 S.E.2d 513, and State by State Road Commission of West Virginia v. Snider, 131 W.Va. 650, 656--657, 49 S.E.2d 853, 857.

Defendants' Instruction No. 1 is as follows:

'The Court instructs the jury that when private property is taken by the State Road Commission under the exercise of the power of eminent domain, the law requires that just compensation be paid to the landowner. Just compensation means a fair and full equivalent for the loss sustained by the landowner. It would be unjust to the State if it were required to pay more than the loss sustained by the property owner and it would be unjust to the property owner if he should receive less than the full and fair equivalent of his loss.

'Just compensation is to be ascertained as of the date the State acquired the property, which in this case is November, 1963.

'Just compensation in this case includes two separate issues which you as jurors must determine: First, the fair market value of the land, improvements, and fixtures actually taken by the State Road Commission; and second, the damages, if any, to the residue of the property resulting from the taking and the construction of the highway less any benefits to be derived by such residue from the construction of the highway.'

Counsel for the condemners objected to the granting of Defendants' Instruction No. 1, when it was offered, on the ground that it improperly defines just compensation as 'a fair and full equivalent for the loss sustained by the landowner.' We are of the opinion that the objection was well taken. Inasmuch as the proper measure of damages had been fully set forth in State's Instruction No. 1, the language quoted above from the instruction offered by the landowners had a distinct tendency to confuse rather than to instruct or to enlighten the jury. Hull v. Geary, 71 W.Va. 490, pt. 2 syl., 76 S.E. 960. To the extent that the instruction defines a different measure of compensation from that stated in State's Instruction No. 1, it caused an inconsistency between the two instructions. It is error to give inconsistent instructions, even if one of them states the law correctly, inasmuch as the jury, in such circumstances, is confronted with the task of determining which principle of law to follow, and inasmuch as it is impossible for a court later to determine upon what legal principle the verdict is founded. Quality Bedding Co., a W. Va. Corp. v. American Credit Indemnity Co. of N.Y., etc., 150 W.Va. 352, pt. 1 syl., 145 S.E.2d 468; Producers' Coal Co. v. Mifflin Coal Mining Co., 82 W.Va. 311, pt. 3 syl., 95 S.E. 948; Cobb v. Dunlevie, 63 W.Va. 398, pt. 7 syl., 60 S.E. 384; Ward v. Ward, 47 W.Va. 766, pt. 3 syl., 35 S.E. 873; Instructions for Virginia and West Virginia (Second Edition), Volume 1, Section 28, page 70; 88 C.J.S. Trial § 339, page 897; 53 Am.Jur., Trial, Section 557, page 442.

Counsel for the condemners objected to the granting of Defendants' Instruction No. 1 for the additional reason that it stated that 'Just compensation in this case includes two separate issues' for the jury to decide, one the fair market value of the land taken and the other relating to damages to the residue, less benefits. It is not accurate to state that there were 'two separate issues' to be decided by the jury. The jury had the duty to determine the single issue of just compensation, though just compensation in an eminent domain case involves different elements. See, Code 1931, 54--2--9, 54--2--9a, and 54--2--10, as amended.

Because Defendants' Instruction No. 1 stated a measure of compensation in language different from that of the other instruction given, and because it advised the jury that there were 'two separate issues' presented for jury determination, we are of the opinion that the instruction had the tendency to confuse and to mislead the jury. 'When a proper instruction is asked and given, it is error to give another improper instruction which modifies it and nullifies its effect or obscures its meaning.' Ward v. Brown, 53 W.Va. 227, pt. 6 syl., 44 S.E. 488. An instruction which is likely to confuse or to mislead the jury should be refused. Maynard v. National Fire Insurance Co. of Hartford, 147 W.Va. 539, 556, 129 S.E.2d 443, 455; Payne v. Kinder, 147 W.Va. 352, pt. 19 syl., 127 S.E.2d 726; Hartley v. Crede, 140 W.Va. 133, 150, 82 S.E.2d 672, 682; Wilson v. Edwards, 138 W.Va. 613; pt. 8 syl., 77 S.E.2d 164; Parkersburg Industrial Co. v. Schultz, 43 W.Va. 470, pt. 9 syl., 27 S.E. 255; Instructions for Virginia and West Virginia (Second Edition), Volume 1, Section 27, page 65; 88 C.J.S. Trial § 338, page 890; 53 Am.Jur., Trial, Section 555, page 440. The instruction, in its tendency to confuse or mislead the jury, differs from an instruction which is merely incomplete and which, if not a binding instruction, may be cured by one or more proper instructions which are given. Nesbitt v. Flaccus, 149 W.Va. 65, pt. 2 syl., 138 S.E.2d 859; Lawrence v. Nelson, 145 W.Va. 134, pt. 7 syl., 113 S.E.2d 241; Frazier v. Grace Hospital, Inc., 117 W.Va....