Whitman v. Housing Authority of City of Elba

• Decision Date: 25 May 1961
• Docket Number: 4 Div. 39
• Citation: Whitman v. Housing Authority of City of Elba, 130 So.2d 362, 272 Ala. 245 (Ala. 1961)
• Parties: Basil WHITMAN et ux. v. HOUSING AUTHORITY OF the CITY OF ELBA.
• Court: Alabama Supreme Court

Page 362

130 So.2d 362

272 Ala. 245

Basil WHITMAN et ux. v. HOUSING AUTHORITY OF the CITY OF ELBA.

4 Div. 39.

Supreme Court of Alabama.

May 25, 1961.

G. A Lindsey, Elba, for appellants.

Joe C. Cassady, Enterprise, for appellee.

SIMPSON, Justice.

The appellee filed its application to condemn certain lands (Tracts 6, 7, and 8) in the City of Elba. The commissioners' award to appellant in the probate court was $10,000 and judgment was entered accordingly. The appellee appealed from this judgment to the circuit court and demanded a jury trial. Upon trial in the circuit court the jury assessed the damages of appellant as to Tracts 6 and 7 at $25,000 and as to Tract 8 at $550.

This appeal is from the judgment of the lower court granting appellee's motion for a new trial on the ground that the verdict was excessive. The motion for new trial was granted after appellant refused to file a remittitur of $11,500 thus reducing the verdict and judgment to $13,500 which the trial court stated as a condition to the denial of the motion for a new trial.

The sole question presented is whether the granting of the motion for new trial on the ground of excessiveness of the verdict was error to reverse.

In Taylor v. Brownell-O'Hear Pontiac Co., 265 Ala. 468, 470, 91 So.2d 828, 829, we stated the governing principle:

'It has long been a rule of law in this jurisdiction that the granting or refusing of a motion for a new trial is a matter resting largely in the discretion of the trial court, and its order granting a new trial will not be disturbed on appeal unless some legal right of the appellant has been abused.

There is a presumption that the court's discretion was properly exercised. The lower court will not be reversed unless the record plainly and palpably shows that the trial court was in error.' (Citations omitted which also support this oft stated rule.)

It Yarbrough v. Mallory, 225 Ala. 579, 144 So. 447, 449, the holding was that a new trial for excessive or inadequate damages will be granted only where the verdict plainly indicates bias, passion, prejudice, or the like. Further speaking from Yarbrough, supra, 'The basic reason for disturbing the verdict of a jury because of excessive or inadequate damages is precisely the same as for disturbing it because not supported by the evidence, or because opposed to the clear and convincing weight of the evidence. In the one case the inquiry is directed to one feature of the verdict; the damages awarded.'

The jury was permitted to view the premises and it is true that when the jury is so permitted it is not bound by the estimate of damages given by expert testimony. The expert testimony was...