State v. Dunlap , 279 Ala. 418 ( 1966 )

LAWSON, Justice.

• The State of Alabama filed a petition in the Probate Court of Mobile County to condemn lands belonging to David R. Dunlap and others for highway purposes.

The award of the commissioners in the Probate Court was $2,018 and a judgment of condemnation was entered accordingly.

The landowners took an appeal to the Circuit Court of Mobile County,' where' no issue was made as to the' right of the State to condemn the property in question. The sole issue was the amount of damages to be awarded the property owners.

In the circuit court the trial was before a jury, which returned a verdict in favor of the landowners in the sum of $7,000. Judgment was entered accordingly and the State’s motion for a new trial was overruled. The State has appealed to this court.

Appellant contends that the trial court erred in giving at the request of the landowners, appellees, their written Charge No. 4, .made the basis of Assignment of Error 16. Charge 4 reads:

“The Court charges the jury that where, as in this case, only a part of a tract is taken, the owner is entitled to the difference between the value of the entire tract immediately before the taking and the value of the part of the tract remaining after the taking, and in determining the value of the property after the taking the jury may consider any factor or circumstance which would depreciate the value in any way.”

Charge 4 relates to the method of computing compensation yet the State does not contend that the amount of the verdict was excessive. There is an assignment of error to the effect that the trial court erred in overruling the State’s motion for a new trial, but the grounds of the motion taking the point that the verdict was excessive or that it was contrary to the weight of the evidence are not argued in brief.

Although it is not relied upon in brief of appellees, we must give consideration to our case of State v. Peinhardt, 270 Ala. 627, 120 So.2d 728, wherein we held that where the State appealed and parts of the oral charge and a written charge of which complaint was made related to the method of computing compensation, error, if any, in giving of such instructions would not work a reversal where the State had not complained specifically that the compensation awarded was excessive.

Our holding in the Peinhardt case, supra, was grounded on two cases previously decided by this court. Birmingham Belt R. Co. v. Hendrix, 215 Ala. 285, 110 So. 312, and Lehigh Portland Cement Co. v. Higginbotham, 232 Ala. 235, 167 So. 259.

In Birmingham Belt R. Co. v. Hendrix, supra, the railroad appealed from a judgment against it in favor of the administratrix of Hendrix’ estate in a suit brought under the Federal Employers’ Liability Act. The railroad sought to reverse the judgment of the trial court on the ground, among others, that the trial court gave an erroneous instruction relative to the measure of damages. In refusing to reverse on that ground, this court in an opinion authored by Sayre, J., said in part as follows:

“ * * * Nor should there be a reversal on this account since defendant has not complained specifically that the damages assessed were excessive, though it did and does insist that the court erred in refusing to instruct the jury that there could be no assessment of damages for mental pain or conscious physical suffering on the part of deceased between the times of his injury and death, for that part of the charge related only to the measure of damages and not to the right of recovery. * * * ” (Emphasis supplied.) (215 Ala. 288-289, 110 So. 314)

While no authority was cited in Birmingham Belt R. Co. v. Hendrix, supra, in support of the holding in that part of opinion just quoted above, that holding is in accord with a vast majority of the courts of this country. Sgroi v. Yellow Cab & Baggage Co., Inc., 124 Neb. 525, 247 N.W. 355; Erickson v. Keuhn, 195 Minn. 164, 262 N.W. 56; Standard Oil Co. of Louisiana v. Webb, 194 Ark. 569, 108 S.W.2d 1086; Atchley v. Finley, 57 Cal.App.2d 21, 133 P.2d 823; Slovinski v. Beasley, 316 Ill.App. 273, 45 N.E.2d 42; Armer v. Nagels, 149 Kan. 409, 87 P.2d 574; Williams v. Long (Tex.Civ.Ct. of App.), 106 S.W.2d 378; Eberdt v. Muller, 240 Wis. 341, 2 N.W.2d 367, 3 N.W.2d 763, rehearing denied, 240 Wis. 341, 3 N.W.2d 763; School District Number 162 of Gage County v. Grosshans & Peterson, Inc., 169 Neb. 357, 99 N.W.2d 601; Donaldson v. Sepesy, 415 Pa. 194, 202 A.2d 823; Slifer v. Williard, 78 Ind.App. 88, 131 N.E. 87, 132 N.E. 321; Illinois Cent. R. Co. v. Skinner’s Adm’x, 177 Ky. 62, 197 S. W. 552; Inspiration Consol. Copper Co. v. Lindley, 20 Ariz. 95, 177 P. 24.

In Lehigh Portland Cement Co. v. Higginbotham, supra, also cited and relied upon in State v. Peinhardt, supra, we applied the same rule as was applied in the cases cited above. We find no significance in the fact that the writer of the opinion applied the rule of error without injury after stating, “ * * * we are satisfied, after inspecting the entire record, that no injury resulted to the defendant therefrom.” (Emphasis supplied.) The italicized words are substantially in the language of Supreme Court Rule 45.

In State ex rel. Kansas City Public Service Co. v. Shain, 350 Mo. 316, 165 S.W.2d 428, decided in 1942, the Supreme Court of Missouri held that it was not harmless error to give an instruction authorizing permanent damages when not supported by the evidence, although the defendant on appeal did not make any claim that the verdict was excessive. We admit that we are not certain of the rule in Missouri, for despite Shain, the Supreme Court of Missouri in Wilcox v. Swenson (Mo.Sup.Ct.), 324 S.W.2d 664, 673, applied the harmless error rule in regard to a claimed erroneous instruction because: “* * * Appellant makes no point that the verdict is excessive in amount. Benefield v. Thompson, Mo. App., 139 S.W.2d 1009, 1012 [3, 4], He has not discharged the burden of establishing prejudicial error. Sang v. City of St. Louis, 262 Mo. 454, 171 S.W. 347, 350 [7].”

But if the holding in the Swain case, supra, does indeed correctly state the Missouri rule, then the Missouri rule represents the minority view. See Seaboard Air Line Ry. v. Brewton, 150 Ga. 37, 102 S.E. 439; United States of America v. 2,872.88 Acres of Land, etc., 5 Cir., 310 F.2d 775.

Although not exactly in point with our Pcinhardt case, supra, it is interesting to note what was said by the Kansas City Court of Appeals in Missouri Public Service Co. v. Durham, 325 S.W.2d 807, as answer in part to the contention of appellant, the plaintiff below, that the cause should be reversed because of the giving of an instruction :

• “As is correctly stated’ in defendant’s [appellee’s] brief: ‘The sole issue in the trial of this case was the amount of defendant’s damages.’ And there is no claim made here that the damages awarded were excessive. In fact, the amount awarded was much less than that shown by the defendant’s testimony. We rule the point against plaintiff.” (325 S.W.2d 809-810)

The language last above quoted was from a condemnation case.

There are other condemnation cases where substantially the same rule was applied. Herrin & S. R. Co. v. Nolte, 243 Ill. 594, 90 N.E. 1097; Eastern Colorado Power Co. v. Gabel, 23 Colo.App. 74, 127 P. 449; Thompson v. State (Tex.Civ.App.), 165 S.W.2d 131. In Dallas Power & Light Co. v. Edwards (Tex.Civ.App.), 216 S.W. 910, 912, it was said:

“While we have discussed the issue on its merits, it may further be said that the assignment does not present ground for reversal for the reason that it is not claimed that the verdict of the jury was excessive. Incorrect charges as to the measure of damages, improper testimony, or other irregularities, such as the unauthorized statement of the juror Pyron, when it can certainly be said that such matters affect only the amount of the verdict, are not ground for reversal, in the absence of any claim that the verdict is excessive. [Houston & T.C.] Railway Co. v. Boozer, 70 Tex. 530, 8 S.W. 119, 8 Am.St.Rep. 615; Houston Elec. Co. v. Pearce [Tex.Civ.App.], 192 S.W. 558. Appellant did in its motion for new trial charge that the verdict was excessive, alleged to be the result of passion and prejudice, and not because of the statement of the juror Pyron. The claim, however, was not brought forward in the brief, and is to be considered abandoned, even if the ground set out in the motion would cover- Pyron’s action, which is obviously doubtful.”

In our case of Southern Furniture Mfg. Co. v. Mobile County, 276 Ala. 322, 161 So.2d 805, our Peinhardt case, supra, was cited and quoted from with approval in an opinion written for the court by the Chief Justice.

After considerable research we have reached the conclusion that our holding in the Peinhardt case, supra, is correct and that holding is here reaffirmed.

It follows that reversible error is not made to appear in connection with the trial court’s action in giving appellees’ written Charge No. 4.

All of the other argued assignments of error, except one, are to the effect that the trial court erred in admitting evidence, over appellant’s objections, concerning the measure of damages suffered by appellees.

Our holding in the Peinhardt case has application to these assignments of error, since appellant in its brief does not argue the grounds of its motion for new trial to the effect that the verdict was excessive. Dallas Power & Light Co. v. Edwards, supra.

In Ellering v. Minneapolis, St. P. & S. M. Ry. Co., 107 Minn. 46, 119 N.W. 507, 508, a condemnation case, it was said:

“Finally, the action of the trial court in sustaining objection to certain questions asked is assigned as error. Apart from doubt as to whether any error had been committed, it is clear that no prejudice resulted. As has been previously pointed out, no assignment of error is addressed to excess of the award. The questions were designed to affect the amount of the verdict.”

In Aledo Terminal Ry. Co. v. Butler, 246 Ill. 406, 92 N.E. 909, 910, a condemnation case, it was said, in part:

“ * * * The court also refused to allow appellant to prove what appellees had paid for the farm in question three' years before. We think that this evidence was proper and ought to have been received; but its exclusion would not justify us in reversing the judgment in the absence of any claim that the damages awarded are excessive.”

In Hann v. Brooks, 331 Ill.App. 535, 73 N.E.2d 624, it was held, in substance, in a wrongful death action that the defendants could not complain that the admission of a mortality table was improper where defendants did not urge that the verdict in favor of plaintiff was excessive. To like effect see Ferguson v. City of Springfield, 311 Ill.App. 655, 37 N.E.2d 563; Sharon v. Kansas City Granite & Monument Co., 233 Mo.App. 547, 125 S.W.2d 959; Century Ins. Co., Limited of Edinburgh, Scotland, v. Rice, 193 Okl. 418, 144 P.2d 953; Moody v. Castleberry (Tex.Civ.App.), 151 S.W.2d 960; Northwest States Utilities Co. v. Brouilette, 51 Wyo. 132, 65 P.2d 223, rehearing denied, 51 Wyo. 132, 69 P.2d 623.

In view of the foregoing, we hold that cause for reversal does not appear in the assignments of error which challenge the rulings of the trial court in regard to the admission of evidence.

The only other argued assignments of error relate to the action of the court in excusing the appellees’ witness, George A. Haas, from the rule and in permitting him to testify. Mr. Haas had assisted appellees in securing appraisals for appellees on the subject property. Perhaps the rule of the Peinhardt case, supra, has application to this assignment of error, but in any event the trial court did not ^err in permitting Mr. Haas to testify on behalf of appellees under our holding in Ryan v. Couch, 66 Ala. 244.

The judgment of the trial court is affirmed.

Affirmed.

LIVINGSTON, C. J., and GOODWYN, MERRILL and HARWOOD, JJ., concur. COLEMAN, J., dissents.