State v. Farabee, 7 Div. 390

• Decision Date: 08 January 1959
• Docket Number: 7 Div. 390
• Citation: 268 Ala. 437,108 So.2d 148
• Parties: STATE of Alabama v. J. C. FARABEE et ux.
• Court: Alabama Supreme Court

Page 148

108 So.2d 148

268 Ala. 437

STATE of Alabama v. J. C. FARABEE et ux.

7 Div. 390.

Supreme Court of Alabama.

Jan. 8, 1959.

John Patterson, Atty. Gen., and E. L. Roberts, Sp. Asst. Atty. Gen., for appellant.

Ollie W. Nabors, Jack W. Torbert and Clarence Simmons, Jr., Gadsden, for appellees.

SIMPSON, Justice.

This is an appeal by the State of Alabama from a final order of condemnation of land for the construction of a highway extending through the City of Gadsden in Etowah County.

The right of petitioner to condemn the property was conceded. The only question was that of compensation for the land taken and the severance damages to the land remaining. A final decree of condemnation was entered in the Probate Court of Etowah County after due proceedings in that court. From this final decree the defendants appealed to the Circuit Court of Etowah County, where a trial de novo before a jury was had. A verdict and judgment was entered for the defendants in the sum of $4,200 as just compensation. A motion for a new trial was denied. From this verdict and judgment this appeal is taken by the State.

As pointed out by the appellee, appellant's brief has not complied fully with the standards required by Supreme Court Rule 9, Tit. 7, Appendix (Pocket Part), Code 1940. A concise statement of so much of the record as fully presents every error and exception relied upon referring to the pages of the transcript did not appear under the heading, 'Statement of the Case'. Only two general propositions of law were set out to sustain the seven assignments of error presented on appeal. And only one case was cited in appellant's argument, which seemed to argue several assignments together. Nevertheless, we will exercise our discretion and give consideration to the points argued. Wood v. Wood, 263 Ala. 384, 82 So.2d 556.

Assignments of Error numbered 2 and 6 are not argued and are therefore waived. Supreme Court Rule 9, supra.

Both parties to this appeal have treated Assignments of Error numbered 1 and 7 as the same, and we will so treat them. Appellant contends that the verdict and judgment of $4,200 is grossly excessive and that 'it clearly appears that the verdict was the result of inadvertence or intentional or capricious disregard of the evidence, or was infected with bias, passion, or other improper motive, and that the excessiveness of the verdict was the result thereof'. See Thornton v. City of Birmingham, 250 Ala. 651, 35 So.2d 545, 7 A.L.R.2d 773. The principle is settled that the verdict must stand, unless the amount is so large or so small as to carry internal evidence of intemperance in the minds of the jury and when the presiding judge refuses to grant the new trial, a favorable presumption attending the correctness of the verdict is thereby strengthened. State v. Carter, 267 Ala. 347, 101 So.2d 550; Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 64 So.2d 594; Thornton v. City of Birmingham, supra; Birmingham Electric Co. v. Howard, 250 Ala. 421, 34 So.2d 830.

The land involved consisted of Lots 7, 8, 9, 10, 11, 12, 34, 35, 36, 37, 38, and 39, in Block 4 of the T. R. Raley Second Addition, East Gadsden, Etowah County Alabama. This property was residential area, and a school and church were located in the near vicinity. A registered land surveyor testified that a contract had been let for a sewerage project that would serve Block 4 of the T. R. Raley Addition. Another witness, who it was shown had been in the real estate business for about twelve years, had bought and sold property in East Gadsden and in the vicinity of the T. R. Raley Second Addition, and was familiar with the appellees' property, testified that, in his opinion, all of the lots in question would have a reasonable total value of $5,400 and that the portion of land remaining after the taking would have a value of approximately $300. Still another witness, who had been in the real estate business ten years, testified that in his opinion, the full value of all the property would be $5,400 without considering the land remaining and the land remaining would be worth $150 to $200. The evidence as to values, therefore, was conflicting and a strict jury question was presented.

It is noted that the jury was allowed to view the property condemned and 'A view of the premises and their surroundings and considering the prospects of a sanitary sewerage system available without cost of construction chargeable to the adjoining property owners, all serve to add to the value of the verdict of the jury'. State v. Carter, supra [267 Ala. 347, 101 So.2d 553].

We have allowed all reasonable presumption of the correctness of the verdict, and the evidence against the verdict is not so decided as to clearly convince the Court that it is wrong and unjust. Under such circumstances we are unwilling to pronounce our judgment, based only on the printed page, to be so superior to that of the jury and the trial judge as to supersede their view of the matter and substitute our own for theirs. Thornton v. City of Birmingham, supra.

Appellant contends that the lower court erred in sustaining objection to the following question:

'Do you know whether or not one of those fifty foot lots is for sale over there now, or not?'

A direct answer to the question would not have shed light on the value of lots in an adjoining block, and it is hard to see how appellant was prejudiced by his inability to obtain an answer to such question. Appellant made no offer as to what he expected the evidence to show, and we can only presume that it was...