Vaulx v. Tennessee Cent. R. Co.

• Citation: 108 S.W. 1142
• Parties: VAULX et al. v. TENNESSEE CENT. R. CO.
• Decision Date: 04 April 1908
• Court: Supreme Court of Tennessee

108 S.W. 1142

VAULX et al. v. TENNESSEE CENT. R. CO.

Supreme Court of Tennessee.

April 4, 1908.

Error to Circuit Court, Davidson County; John W. Childress, Judge.

Condemnation proceedings by the Tennessee Central Railroad Company against Joseph Vaulx and others. An order denying defendants' motion for a new trial was reversed on a writ of error by the Court of Civil Appeals, on which writ plaintiff assigned cross-errors, whereupon the case was brought to the Supreme Court on certiorari. Reversed and remanded.

John J. Vertrees and W. O. Vertrees, for plaintiffs in error. Chambers & Aust, for defendant in error.

NEIL, J.

This is a condemnation proceeding. The railroad company appropriated, as its right of way, 9.12 acres of land out of a tract of 205 acres owned by the plaintiffs in error. There were appropriate proceedings instituted in the court below for the ascertainment of the value of the land appropriated and incidental damages. The only question before us now arises out of certain language used by the circuit judge in disposing of the motion for new trial, and next as to whether the circuit judge acted correctly in giving certain instructions to the jury, and in declining other instructions which were requested to be given by the plaintiffs in error, and in ruling out certain testimony offered.

As to the first question: Among other grounds for new trial in the court below the plaintiffs in error averred that the verdict was against the weight of the evidence. The circuit judge, in disposing of the motion for new trial, said:

"A number of very intelligent witnesses were examined in this case, and they differ widely as to the damages. Had the jury returned a verdict for $18,000 or $20,000 damages, I would have sustained it under my rule, because there was evidence to support it. Upon the other hand, the jury having returned the verdict that it did, I will sustain it because there is evidence to support it. Under my rule, when in cases of controversy there is evidence to support the verdict, I will sustain it."

The bill of exceptions adds the following:

"The court, in the opinion delivered in overruling the motion, did not weigh or compare, or attempt in any way to reconcile, the evidence, but stated substantially that which has been stated hereinbefore. The court expressed no opinion as to the amount of the verdict; that is, whether in the court's opinion the verdict was proper, or for too small an amount."

The case was first appealed to the Court of Civil Appeals, and from that court was brought here by the writ of certiorari. In the Court of Civil Appeals, the action of the judge evinced by the excerpts above set forth was held to be error on the ground that it was the duty of the circuit judge to weigh the evidence on a motion for new trial, when the objection to the verdict is that it is not sustained by the evidence. We think this view is correct. The parties are entitled, on such a motion, to have the circuit judge weigh the evidence for the purpose of ascertaining whether it preponderates against the verdict. If, in his fair judgment, it is found the evidence preponderates against the verdict, it is his duty to set it aside and grant a new trial.

There is no difficulty in administering this rule where the question is simply whether the plaintiff or the defendant was entitled to a verdict on the issues made. There is more difficulty in a case like the present, where the only matter in issue is the value of certain property taken, and the incidental damages inflicted upon the residue of the tract not taken. However, the difficulty of determining the matter is no argument against the duty to make such determination. The parties are entitled to the judgment of the circuit judge as to whether the amounts found by the jury upon each of the above-mentioned phases of the question represent a fair average of all of the evidence, after duly weighing and considering the evidence from every standpoint from which it should be examined, taking into consideration the appearance and manner of the witnesses, their means of knowledge, their intelligence, etc.

The rule is different in cases of purely personal injuries. In cases of that latter kind there is always the preliminary question as to whether the plaintiff is entitled to a verdict at all. When that stage of the litigation has been passed, and the jury have reported a certain amount of damages, then the question to be determined in respect of damages frequently arises in the court below upon a motion for new trial on the ground that the verdict is excessive, as evincing passion, prejudice, or caprice on the part of the jury. In determining this question, also, it is the duty of the circuit judge to weigh the evidence. Indeed, we know of no case where the circuit judge can lawfully pass over the duty to weigh the evidence, where an objection in due form is made in the court below to the verdict on the facts.

For the failure of the circuit judge in respect of the matter above mentioned, the judgment must be reversed.

We have been referred to the case of O. F. Noel v. T. C. R. R. Co. (MS. opinion, not for publication, filed by this court at the December term, 1905) as an authority in opposition to the conclusion just reached.

We do not think the opinion referred to is open to the construction claimed for it. There the question was whether the judgment should be set aside and a new trial granted simply because the circuit judge had said in substance that he was not satisfied with the verdict, but would let it stand. We said in that case, referring to Telephone & Telegraph Co. v. Smithwick, 112 Tenn. 467, 79 S. W. 803, that the court would reverse where the circuit judge expressed dissatisfaction with the verdict; that is, that this was the general rule, but that it did not apply where the dissatisfaction referred merely to the amount of damages, for which we cited Jenkins v. Hankins, 98 Tenn. 545, 41 S. W. 1028, and Railroad v. Roddy, 85 Tenn. 410, 5 S. W. 286.

It is true the cases referred to were cases involving unliquidated damages in actions of tort, and were applied to a case involving an estimate of value of property taken in condemnation proceedings and incidental damages to the residue of the land. We are of opinion that the particular rule referred to was properly applied in that case; that is to say, the mere fact that the circuit judge expressed dissatisfaction with the verdict is not enough to justify this court in granting a new trial, although the damages arise in condemnation proceedings. Such a statement shows that he has weighed and considered the evidence on which the verdict is based. Now the fact that after such consideration he is not satisfied with the amount in such a case we do not think ought to justify a new trial. The fact that he has weighed the evidence, and as a result thereof is not satisfied with the amount, but does not state an amount as the one with which he would be satisfied, or one which he thinks the evidence justifies, indicates that his reflections have not reached that degree of maturity which would enable him to firmly differ with the conclusion reached by the jury. In this view of the case, of course, it would be highly improper to set aside the verdict for mere dissatisfaction on the part of the circuit judge. However, where the bill of exceptions shows that the circuit judge has not given the parties the benefit of his reflections at all — that is, has not weighed and considered the evidence — here is presented a case of breach of duty on the part of that officer for which there must always be granted a new trial.

Inasmuch as the case must go back for a new trial, it is necessary that we consider some other assignments. These are based upon certain objections to the charge of the court, and his refusal to grant certain requests, and his action on certain testimony offered.

In order that the objections to the charge may be fully understood, it is necessary that we should set out the substance of the charge on the points referred to. The portions of the charge necessary to be set out read as follows:

"(2) In estimating its value, all the capabilities of the property and all uses to which it may be applied are to be considered, and not merely the condition it is in at the time and the use to which it is then applied by the owner. It is not a question of the value of the property to the owner, nor can the value be enhanced by his unwillingness to sell. On the other hand, the damages cannot be measured by the value of the property to the party condemning it, nor by its need of the particular property. You cannot single out from the elements of general value the value for a special purpose, but you are to consider all the constituent elements that make up the market value. Its availability, adaptability, and capability for different uses and purposes, and everything which enhances or depreciates its worth, should be taken into consideration.

"(3) Assuming that the railroad company wishes to buy the land, but is not compelled to do so, and the defendants wish to sell the land, but are not compelled to do so, you are to ascertain and find from the proof, under these circumstances, what was the actual reasonable cash value of the land sought to be appropriated and set apart for this right of way — that is, in the form, in the amount, and at the place taken; and in assessing the damages to that portion of the land actually taken and set apart for the use of the railroad company for its right of way you are to give the owners the reasonable market value in cash, at the time of the appropriation, to wit, October 17, 1902, without any deduction.

"(4) In the next place, you are to consider whether there are any incidental damages to the property and to the owners, independent of that portion of the land actually appropriated. Incidental damages may be of the following character: They may result from the...