Wilson v. Iowa State Highway Commission, 49359

• Citation: 249 Iowa 994,90 N.W.2d 161
• Decision Date: 06 May 1958
• Docket Number: No. 49359,49359
• Parties: N. B. WILSON and Alice Wilson, Appellants, v. IOWA STATE HIGHWAY COMMISSION, Appellee.
• Court: United States State Supreme Court of Iowa

Page 161

90 N.W.2d 161

249 Iowa 994

N. B. WILSON and Alice Wilson, Appellants, v. IOWA STATE HIGHWAY COMMISSION, Appellee.

No. 49359.

Supreme Court of Iowa.

May 6, 1958.

J. R. McManus, Des Moines, for appellants.

Norman Erbe, Atty. Gen., C. J. Lyman, Sp. Asst. Atty. Gen., and Mitchell & Beving, Des Moines, for appellee.

OLIVER, Justice.

Plaintiffs own a 7 1/2 or 8 acre tract of land in the east part of Des Moines. Defendant Iowa State Highway Commission condemned a narrow strip along one side of this land, amounting to a fraction of an acre. A condemnation commission assessed plaintiffs' damages at $350. Plaintiffs appealed to district court and that jury assessed the damages at $14,000. The district court set aside that verdict and granted a new trial. From that order plaintiffs have appealed to this court.

Plaintiffs' tract of land is roughly the shape of an arrowhead pointing northeast, the located at the southwest corner of the intersection of Avenue Frederick M. Hubbell (U. S. Highways 6 and 65 and State Highway 64) which there runs northeast and southwest, and East 42nd Street, which runs north and south. Both streets are paved. The tract abuts the southerly side of Avenue Hubbell 754 feet and the west side of East 42nd Street for approximately the same distance. The southwesterly 287 feet along Avenue Hubbell is zoned residential and is used for pasture and growing corn. The easterly part along Avenue Hubbell is zoned commercial. Upon it, immediately below the intersection, is a building about 30 by 100 feet which houses a restaurant and a garage and service station for crosscountry trucks and other motor vehicles, with outside pumps for gasoline and diesel fuel, also a two-story building, 34 by 46, used as a law office and residence, with sleeping accommodations for twenty truckers.

These improvements face Avenue Hubbell. They are immediately across Avenue Hubbell from the restaurant, garage, filling station and truck stop involved in Iowa State Highway Commission v. Smith, 248 Iowa 869, 82 N.W.2d 755. As therein stated, the highway commission and city, acting under Chapter 148, Acts 56th G.A., Chapter 306A, Code of Iowa 1958, I.C.A., designated Avenue Hubbell between certain points, as a controlled-access facility for public use.

The pavement was widened to about 49 feet and except at certain intersections was divided into separate roadways by raised humps of concrete, referred to as jiggle bars, constructed along its center and which traffic was forbidden to cross. In connection with the widening, the highway commission instituted this proceeding to acquire a strip of plaintiffs' land along the edge of Avenue Hubbell, 2 feet wide and 754 feet long, also the right to encroach upon a strip of plaintiffs' pasture land along Avenue Hubbell 20 feet wide and 170 feet long, for the filling, widening and maintaining of the shoulder of the pavement along a draw or low area. This encroachment required the removal of a number of trees. There was also evidence of the removal of a fence and one or two signs.

Mr. Wilson testified plaintiffs bought the tract of land in 1948, for $8,500 and paid $64,500 for the construction of the improvements. He estimated the market value of the property at $125,000 before and $75,000 after the condemnation in 1956. Three expert valuation witnesses for plaintiffs fixed the before and after value of plaintiffs' property at (1) $90,000 and $64,500, (2) $84,500 and $61,500, and (3) $96,000 and $64,000. Two valuation witnesses for defendant fixed the value at (1) $76,000 before and $75,500 after, and (2) $82,436 before and $81,567 after. It may be observed the highest estimate of plaintiffs' damages given by either witness for defendant was $869 and the lowest estimate by any witness for plaintiffs was $23,000, more than twenty six times that amount.

Three trial jurors made affidavits that during their consideration of the case several jurors argued to the others that the construction of Avenue Hubbell with a center dividing line containing 'jiggle bars' and the prohibition of left turns across the center line, except at street intersections, should be considered in fixing the damages to be awarded plaintiffs; that vehicles coming from the northeast, being unable to make a left turn to plaintiffs' property would not proceed down the highway to a point where a U-turn would be permitted and then return to plaintiffs' property to patronize the businesses thereon, that this would result in a substantial loss of business for which plaintiffs should be paid and that such items should beconsidered by the jury in arriving at its verdict; also that the jury should consider the possibility, referred to in arguments for plaintiffs, that Avenue Hubbell might be converted into a parkway, thereby doing away with plaintiffs' truck stop business. Counter affidavits were made by the other nine jurors.

Instruction 12 stated in part that the Highway Commission and city were making Avenue Hubbell a controlled access highway for the purpose of expediting travel, and for the preservation of the public peace, health and safety and the promotion of the general welfare, that this was a proper enterprise, and that the city had the right, under its police power, to regulate traffic on the highway and create a divided highway. 'If, because of the regulation of traffic and the division of the highway, some circuity of travel is required by the public using this highway, such regulation cannot be made the basis for a claim of damages against the Iowa State Highway Commission or the city of Des Moines, and such issue has been withdrawn from your consideration.'

The order setting aside the verdict recited the amount allowed by the jury was so excessive as to show passion and prejudice; that the verdict was contrary to law because the only items submitted to the jury could not justify any such verdict; that because of the various ordinances of Des Moines in evidence, the court believed the jury might have given effect to the divided highway, 'jiggle bars' and limited left turns; that this proposition, which was referred to in the affidavits of the three jurors, had been taken from the consideration of the jury by instruction 12 and that: 'This court believes that the verdict of the jury in this case does not effect justice as between these parties and that the jury did not do its duty under the law and the instructions.' The order stated the motion for new trial was sustained as to paragraphs 1, 2, 3 and 18. These paragraphs include the foregoing propositions, with elaborations and some additions.

I. Appellants contend the matters referred to in the affidavits of the jurors inhered in the verdict and hence could not be used to impeach it and that the trial court erred in giving consideration to such affidavits. This contention is not meritorious. The affidavits tended to show misconduct of members of the jury in discussing and considering elements of damage withdrawn from their consideration by the Instructions. This was merely evidence of what occurred in the jury room. It should be distinguished from evidence of the effect of such occurrences on the verdict of a juror or jurors, which may not be shown to impeach the verdict. In re Estate of Murray, 238 Iowa 112, 119, 120, 26 N.W.2d 58, 63, states:

'The portion of the testimony of the jurors to the effect such statements materially affected the verdict is to be disregarded. That is a mere matter of opinion which does inhere in the verdict. (Authorities.)

'But it was proper to show what did transpire in the jury room. That is a fact and not an opinion. (Authorities.)'

There are like holdings in Keller v. Dodds, 224 Iowa 935, 940-942, 277 N.W. 467; Hall & Co. v. Robison, 25 Iowa 91, 93; Douglass v. Agne, 125 Iowa 67, 71, 72, 99 N.W. 550.

II. The order setting aside the verdict and granting a new trial was based upon various grounds. Some rules applicable to the consideration of such orders are expressed as follows in Jordan v. Schantz, 220 Iowa 1251, 1257, 264 N.W. 259, 262:

'* * * It is well settled in this state that the trial court has a wide discretion in the matter of granting new trials in jury cases, and that an order of court granting a new trial will not be interfered with on appeal except where it clearly appears that there has been an abuse of that discretion. We have said that if any one of several grounds of a motion for new trial is good, that the action of the trial court in granting a new trial will be sustained. Perry Nat. Bank v. Engnell, 198 Iowa 26, 199 N.W. 283. We have said further, that even though no single one of them be sufficient in itself, yet, if when they are all considered together, they can reasonably support the conclusion of the trial court that a fair trial has not been had, the order for a new trial will be sustained. Morton v. Equitable Life Ins. Co., 218 Iowa 846, 254 N.W. 325, 96 A.L.R. 315. We recognize that the trial court has a wider discretion in granting new trials than this court has.'

Substantially the same statements appear in Greiner v. Hicks, 231 Iowa 141, 144, 145, 300 N.W. 727, which cites, as supporting authorities, the Schantz case; Brunssen v. Parker, 227 Iowa 1364, 291 N.W. 535, and Morton v. Equitable Life Ins. Co., 218 Iowa 846, 850, 254 N.W. 325, 96 A.L.R. 315. These rules were considered and approved in Hall v. City of West Des Moines, 245 Iowa 458, 62 N.W.2d 734, a condemnation case.

In the case at bar there was substantial affirmative evidence to support the finding of the trial court that the jury considered elements of damages which had been taken from its consideration by Instruction 12. This finding justified the conclusion that the jury did not properly perform its duty under the law and the instructions. Hence, the order setting aside the verdict and granting a new trial was not an abuse of the discretion lodged in the trial court. Henrich v. Oppedal, 248 Iowa 509, 81...