City of Winston-Salem v. Parker , 20 N.C. App. 634 ( 1974 )

MORRIS, Judge.

Plaintiff presents numerous assignments of error.' Although we have considered all of them, we limit our discussion to only one of the assignments of error.

It is plaintiff’s contention that the trial court erred in allowing counsel for defendants to make arguments to the jury which were intended to persuade them to render a favorable verdict for reasons other than the evidence with respect to the value of the property before and after the taking. In addition, plaintiff maintains that portions of the jury argument were based on matters on which there had been no testimony and which were intended solely to prejudice the jurors against the City. Plaintiff interposed several objections to portions of the argument and contends that the court committed prejudicial error in failing to sustain the objections. We agree.

The impact of defendants’ jury argument could not have been harmless. We do not quote the lengthy portions to which plaintiff objected, but the implication is unmistakable that the City has grievously injured a landowner who did not wish to part with part of his property, and that the City has expended an inordinate amount of time and effort in insuring that defendants be treated unfairly and compensated inadequately.

The well-established measure of damages in an eminent domain proceeding in North Carolina is the difference in the fair market value before and after the taking of the property by the sovereign. Glace v. Pilot Mountain, 265 N.C. 181, 143 S.E. 2d 78 (1965); Statesville v. Anderson, 245 N.C. 208, 95 S.E. 2d 591 (1956). Thus, the desire of the landowner to part with the property is irrelevant to the issue of just compensation —the only issue of fact in the hearing below.

While counsel is allowed wide latitude in arguing his case to the jury, it is error for the trial court to allow him to argue matters not justfied either factually or legally by the evidence. Jenkins v. Hines Co., 264 N.C. 83, 141 S.E. 2d 1 (1965). Counsel for defendants has gone far afield of the facts in evidence and the law regarding the measure of compensation at issue.

While we might not, in this case, consider the argument of counsel sufficiently prejudicial standing alone to warrant a new trial, when it is coupled with the most favorable stress placed by the court on defendants’ contentions, we are of the opinion that appellant is entitled to a new trial.

New trial.

Chief Judge Brock and Judge Carson concur.