Opinion
No. 42710.
June 10, 1963.
1. Eminent domain — damages — not excessive.
Verdict in eminent domain proceeding to obtain right-of-way over land for use in construction of interstate highway was not excessive.
2. Supreme Court — purpose of, dispensing as nearly as possible, equal justice to all.
Supreme Court has purpose of dispensing, as nearly as possible, equal justice to all.
Headnotes as approved by Lee, P.J.
APPEAL from the Circuit Court of Pearl River County; SEBE DALE, Judge.
Joe T. Patterson, Atty. Gen., Jackson; Tate Thigpen, G.B. Keaton, Picayune, for appellant.
I. There was no credible evidence to support the verdict of the jury, the verdict is against the great weight of the evidence, and not supported by a preponderance of the testimony, and the verdict of the jury is so excessive as to denote bias and prejudice, and as to shock the enlightened conscience. Board of Levee Commissioners v. Hendricks, 77 Miss. 483, 27 So. 613; McDuffie v. Mississippi State Highway Comm., 239 Miss. 518, 124 So.2d 284; Mississippi State Highway Comm. v. Ellzey, 237 Miss. 345, 114 So.2d 769; Mississippi State Highway Comm. v. Slade, 241 Miss. 721, 133 So.2d 282; Mississippi State Highway Comm. v. Valentine, 239 Miss. 890, 124 So.2d 690.
II. That the lower court erred in overruling and denying petitioner's motion for mistrial based on the arguments and remarks of appellees' counsel concerning the alleged furnishing by the Federal Government of 90% of the cost of the right of way, and, upon instruction by the Court to the jury that they should not be influenced by this, in refusing the request of appellant that the jury be then polled as to whether they would be influenced by such alleged fact. Chilcutt v. Keating, 220 Miss. 545, 71 So.2d 472; Lagrone v. Helman, 233 Miss. 654, 103 So.2d 365; Lancaster v. Lancaster, 213 Miss. 536, 57 So.2d 302; Petermann v. Gary, 210 Miss. 438, 49 So.2d 828; Robinson v. Simms, 227 Miss. 375, 86 So.2d 318; Snowden v. Skipper, 230 Miss. 684, 93 So.2d 834.
III. That the lower court erred in refusing to permit appellant witnesses in rebuttal to testify as to why the comparable properties as used by appellees' witnesses are not comparable to that of the appellee. Mississippi State Highway Comm. v. Daniels, 235 Miss. 185, 108 So.2d 854; St. Louis, S.F.R. Co. v. Dysen, 207 Miss. 639, 43 So.2d 95.
IV. That the Court erred in refusing to grant motion to exclude testimony of appellee witness, Ferris E. Tate. Mississippi State Highway Comm. v. Day, 181 Miss. 708, 180 So. 794; Mississippi State Highway Comm. v. Smith, 202 Miss. 488, 32 So.2d 268.
V. That the Court erred in refusing to exclude the testimony of appellee witness, O.A. Davis. Mississippi State Highway Comm. v. Slade, supra; Mississippi State Highway Comm. v. Valentine, supra.
VI. That the Court erred in refusing to exclude the testimony of appellee witness, C.C. Barefoot. Mississippi State Highway Comm. v. Slade, supra; Mississippi State Highway Comm. v. Valentine, supra.
VII. That the Court erred in refusing to exclude the testimony of E.F. Loe. Mississippi State Highway Comm. v. Slade, supra; Mississippi State Highway Comm. v. Valentine, supra.
Williams Williams, Poplarville, for appellees.
I. The case was decided by the jury on testimony that was either undisputed in favor of appellees or on sharply conflicting testimony, and the verdict of the jury, being supported by ample evidence, should, therefore, not be disturbed by this Court. Aetna Insurance Co. v. Lester, 170 Miss. 353, 154 So. 706; Burrill v. Rau, 153 Miss. 437, 121 So. 118; Caldwell v. Smith, 200 Miss. 711, 28 So.2d 657; C. R. Stores, Inc. v. Scarborough, 189 Miss. 872, 196 So. 650; Dement v. Summer, 175 Miss. 290, 165 So. 791; Faulkner v. Middleton, 186 Miss. 355, 190 So. 910; Gee v. Rimmer, 188 Miss. 460, 195 So. 342; Hartford Fire Ins. Co. v. Williams, 165 Miss. 233, 145 So. 94; Hemming v. Rawlings, 144 Miss. 643, 110 So. 118; Johnson v. Richardson, 234 Miss. 849, 108 So.2d 194; Lynch v. American Slicing Machine Co., 202 Miss. 515, 32 So.2d 546; Mississippi Central R. Co. v. Roberts, 173 Miss. 487, 160 So. 604; Mississippi Power Light Co. v. Smith, 169 Miss. 447, 153 So. 376; Mississippi State Highway Comm. v. Baker, 241 Miss. 738, 133 So.2d 277; Mississippi State Highway Comm. v. Brooks, 239 Miss. 308, 123 So.2d 423; Mississippi State Highway Comm. v. Gabbert, 238 Miss. 687, 119 So.2d 774; Mississippi State Highway Comm. v. Stout, 242 Miss. 208, 134 So.2d 467; Mississippi State Highway Comm. v. Strong, 240 Miss. 756, 129 So.2d 349; Mississippi State Highway Comm. v. Turnipseed, 236 Miss. 764, 111 So.2d 925; National Box Co. v. Bradley, 171 Miss. 15, 154 So. 724, 157 So. 91; New Orleans G.N.R. Co. v. Walden, 160 Miss. 102, 133 So. 241; Overing v. Skrmetta, 218 Miss. 648, 67 So.2d 606; Rucks v. Great Southern Tel. Tel. Co. (Miss.), 23 So. 454; Saenger Theatre Corp. v. Herndon, 180 Miss. 791, 178 So. 86; Salter v. Jennings Furniture Co., 144 Miss. 194, 109 So. 704; Triangle Amusement Co. v. Benigno (Miss.), 35 So.2d 454; Universal Truck Loading Co. v. Taylor, 178 Miss. 143, 172 So. 756; Warren County v. Harris, 211 Miss. 8, 50 So.2d 918; Williams Yellow Pine Co. v. Henley, 155 Miss. 893, 125 So. 552; 18 Am. Jur., Eminent Domain, Secs. 355, 361 pp. 999, 1004.
II. Answer to appellant's Point 1. Mississippi State Highway Comm. v. Burwell, 206 Miss. 490, 39 So.2d 497, 40 So.2d 263; Mississippi State Highway Comm. v. Dodson, 207 Miss. 229, 42 So.2d 179; Mississippi State Highway Comm. v. Hillman, 189 Miss. 850, 198 So. 565; Warren County v. Harris, supra.
III. Answer to Point II of appellant's brief. Chilcutt v. Keating, 220 Miss. 545, 71 So.2d 472; Natchez Times Publishing Co. v. Dunigan, 221 Miss. 320, 72 So.2d 681; Petermann v. Gary, 210 Miss. 438, 49 So.2d 828; Welch v. Morgan, 225 Miss. 154, 82 So.2d 820.
IV. Answer to Point III of appellant's brief. Central Pacific R. Co. of California v. Pearson, 35 Cal. 247; Mississippi State Highway Comm. v. Daniels, 235 Miss. 185, 108 So.2d 854; St. Louis, S.F.R. Co. v. Dysen, 207 Miss. 639, 43 So.2d 95; Stinson v. Chicago, etc. R. Co., 6 N.W. 784, 124 A.L.R. 905; Greenleaf, Evidence, Sec. 448.
V. Answer to appellant's Points IV, V, VI and VII. Beard v. Stanley, 205 Miss. 723, 39 So.2d 317; Board of Levee Commissioners v. Nelms, 82 Miss. 417, 34 So. 149; Mississippi State Highway Comm. v. Baker, supra; Mississippi State Highway Comm. v. Day, 181 Miss. 708, 180 So. 794; Mississippi State Highway Comm. v. Hillman, supra; Mississippi State Highway Comm. v. Meridian Brick Co., 245 Miss. 349, 147 So.2d 302; Mississippi State Highway Comm. v. Smith, 202 Miss. 488, 32 So.2d 268; Mississippi State Highway Comm. v. Stringer, 240 Miss. 50, 125 So.2d 830; Mississippi State Highway Comm. v. Windham, 241 Miss. 1, 128 So.2d 577; Terry v. Superintendent of Education, 211 Miss. 462, 52 So.2d 13.
This was an eminent domain proceeding for the purpose of obtaining a right-of-way over the appellees' land for use in the construction of interstate highway No. 59. The appellant has assigned and argued several alleged errors on the part of the trial court; but, after a thorough consideration of all of the evidence in the record, without detailing it, the Court is satisfied that no reversible error was committed.
(Hn 1) The appellant has also contended that the verdict of the jury was grossly excessive, and, in fact, so excessive as to evince passion and prejudice. However, the witnesses on both sides, from their training and experience, seemed to have ample qualifications to give their testimony, as approved in the record by the Court. Indeed, the verdict is large; but, it must be said that the damage is also large. The jury saw the premises, and were in position to judge as to the reasonableness or unreasonableness of the testimony of the various witnesses on the question of values, as to which there was considerable difference of opinion. (Hn 2) Consequently, in its purpose to dispense, as nearly as possible, equal justice to all, this Court cannot say that the verdict is so large as to evince passion or prejudice, or to justify a reversal and remand for a new trial on that account, or to warrant an attempt to pare down the judgment to a smaller amount.
The principles, governing eminent domain, are so clearly set out and stated in the opinions of this Court that an elaboration of the same herein would be of no profit to the Bench and Bar of the State.
The judgment is affirmed.
Affirmed.
Kyle, Arrington, Ethridge and Gillespie, JJ., concur.