State v. Walker, 6 Div. 290

• Decision Date: 01 June 1967
• Docket Number: 6 Div. 290
• Citation: 281 Ala. 182,200 So.2d 482
• Parties: STATE of Alabama v. Mary S. WALKER, as Executrix et al.
• Court: Alabama Supreme Court

Page 482

200 So.2d 482

281 Ala. 182

STATE of Alabama v. Mary S. WALKER, as Executrix et al.

6 Div. 290.

Supreme Court of Alabama.

June 1, 1967.

McQueen, Flowers & Ray and A. L. McDuff, Tuscaloosa, for appellant.

deGraffenried, deGraffenried & deGraffenried, Tuscaloosa, for appellee walker.

McCain & Evans, Tuscaloosa, for appellee York.

MERRILL, Justice.

This appeal by the State of Alabama is from a jury verdict of $48,750.00 in a condemnation suit for highway purposes in favor of appellees, Walker et al., the owners, and appellee York, the lessee, who operated a neighborhood grocery store on the premises. A motion for a new trial was overruled.

The only question presented to the jury was the amount of compensation and damages due appellees. The State's evidence on this question ranged from $9,250 to $18,000; that of the appellees ranged from $36,700 to $40,000. There was no evidence to support a finding of $48,750, the amount of the verdict.

Under our holding in State v. Crawford, 277 Ala. 568, 173 So.2d 109, the judgment appealed from must be reversed. We quote from that case:

'In the case at bar, we do not think the verdict for $1,900.00 can be justified when the only evidence is that the damages amounted to $600.00 and $1,250.00. Under those circumstances, the jury, in allowing $1,900.00 must have proceeded upon some erroneous theory.'

Also in the Crawford case, the argument was made, as it is here, that evidence of value is necessarily opinion evidence, and that it is not conclusive on courts and juries, even when without conflict. But we rejected application of the rule because 'the verdict is an absolute disregard of, and without support from, the evidence.'

Appellees tacitly recognize this rule in brief and suggest that if the award of the jury was based on some erroneous theory on the part of the jury, then we should resolve the question by way of remittitur and not by reversal.

We do not comply with the suggestion. The only question is the amount of compensation to be paid appellees. The evidentiary range is $9,250 to $40,000. We do not think we should substitute our judgment for that of a jury where the issue is not complex and the value range is so wide. Unless the parties can agree on some amount, the question should again be presented to a jury.

Since the judgment is reversed, we do not discuss assignment of error 18, which raises a question of nondisclosure by a juror or possible prejudice in the examination of the jury panel. This question should not arise on another trial.

In view of the possibility of another trial, we point out as to assignments of error 2 and 3 that loss in trade or temporary inconvenience during construction are not elements of damage, Thompson v. City of Mobile, 240 Ala. 523, 199 So. 862; and in determining damages for condemning part of land for highway purposes, rental to various tenants was not material, Pryor v. Limestone County, 222 Ala. 621, 134 So. 17.

The well-established rule of compensation in a condemnation proceeding in this state where only a part of a tract is taken is that the owner is entitled to the difference between the value of the entire tract immediately before the taking and the value of the part remaining after the taking, giving effect to any enhancement in value to the part remaining in case the condemnation was for a public highway, as provided in Tit. 19, § 14, Code 1940. Morgan County v. Hill, 257 Ala. 658, 60 So.2d 838; Pryor v. Limestone County, 222 Ala. 621, 134 So. 17. In determining the value of the property after the taking, the jury should consider any factor or circumstance which would depreciate the value in any way, and this includes any effect that the completed project for which the land is condemned may produce on the remaining tract. St. Clair County v. Bukacek, 272 Ala. 323, 131 So.2d 683; State v. Jacks, 272 Ala. 107, 128 So.2d 734; State v. Goodwyn, 272 Ala. 618, 133 So.2d 375.

Other assignments of error raise the question of whether the tenant should have been permitted to testify, over objection, that he offered the owners $65,000 for the property some six years before the trial, and that the offer was refused.

This court has stated that 'this is not the way to show the reasonable market value of land.' Dean v. County Board of Education, 210 Ala. 256, 97 So. 741. The amount for which an owner could have sold his property or which a prospective purchaser might have been willing to pay is influenced by too many fortuitous circumstances to be relevant on inquiry of value to be admissible as substantive proof thereof by the owner in a condemnation proceeding. Oral and not binding offers are so easily made and refused in a mere passing conversation, and under circumstances involving no responsibility on either side, as to cast no light upon the question of value. It is frequently very difficult to show precisely the situation under which these offers were made. They do not tend to show value, they are unsatisfactory, easy of fabrication and even dangerous as...