NORTH CAROLINA STATE HIGHWAY, ETC. v. Privett , 246 N.C. 501 ( 1957 )

99 S.E.2d 61 (1957) 246 N.C. 501

NORTH CAROLINA STATE HIGHWAY AND PUBLIC WORKS COMMISSION, Petitioner,
v.
E. E. PRIVETT and wife, Fannie Privett; H. A. Clayton, Mrs. Nina Sutties, Widow, H. G. Coker, Harvey C. Carroll, Trustee; W. T. Ussery, C.Q.T., County of Richmond, and Town of Rockingham, Respondents.

No. 461.

Supreme Court of North Carolina.

June 28, 1957. As Amended August 28, 1957.

R. Brookes Peters, Gen. Counsel, Raleigh, Leath & Blount, Rockingham, and H. Horton Rountree, Raleigh, for petitioner, appellant and appellee.

Pittman & Webb and Jones & Jones, Rockingham, for respondents, appellants and appellees.

BOBBITT, Justice.

The front portions of two buildings were on the condemned portion of the Privett property. These buildings were (1) a 1½story frame building, converted into a two family apartment, with four rooms and a bath on each floor and a connecting garage at the rear; and (2) a 2-story concrete block building, the ground floor of which had been used by Privett for his grocery and general merchandise business.

Other buildings on the Privett property, east of the condemned portion, are (1) the Privett residence, ten rooms and a bath, near the center of the Privett property; (2) a new 2-story concrete block building, fronting on US No. 74, the ground floor of which is now used by Privett for his grocery and mercantile business, with six rooms and a bath upstairs; and (3) a new frame building, farther back from US No. 74, with nine rooms and two baths.

The Liles map shows the location of each of the several buildings and the portions of the two buildings fronting on US No. 1, within the condemned portion of the Privett property.

Petitioner and respondents offered opinion evidence as to the fair market value of the Privett land before and after the taking by petitioner of the portion condemned. The verdict indicates acceptance by the jury of the testimony that was more favorable to the respondents.

Petitioner's Appeal

Petitioner brings forward 28 assignments of error based on 44 exceptions. They relate to (1) rulings on evidence, (2) the charge, and (3) sundry matters.

Each exception to a ruling on evidence has been given close attention. No prejudicial error has been shown. It is deemed unnecessary to discuss any of the assignments relating to rulings on evidence except those considered below.

Where the court sustained objections to questions by petitioner's counsel, the subject of assignments 3, 5, 7 and 8, it is sufficient to say: "The record fails to show what the witness would have testified had he been permitted to answer. Hence, there is no basis for a consideration of these exceptions." Hatcher v. Clayton, 242 N.C. 450, 88 S.E.2d 104, 107, and cases cited.

The cross-examination of respondents' witness Cockman explored in detail the bases upon which the witness arrived at his opinion that the fair market value of the Privett property was $135,500 before the taking and $95,500 thereafter. The witness was questioned as to his valuation of the land itself and of each building thereon. In giving his opinion that the 2-story store building on the portion condemned should be valued at $27,500, he stated that he based this figure upon estimates he had obtained as to replacement cost; and the cross-examiner elicited testimony that the witness had made no allowance for depreciation of this replacement cost, notwithstanding the building had been there 20-25 years.

Petitioner's counsel moved that "his testimony there be stricken, because the courts have said replacement cost is not the proper measure of damages." Exception No. 5, upon which assignment No. 4 is based, is to the court's denial of said motion. The court aptly observed that petitioner's counsel had "brought it out." This testimony, it would appear, tends to impair the weight that should be given to the testimony of Cockman on direct examination as to over-all values; and, independent of the fact that it was elicited by petitioner's counsel, we detect nothing therein unfavorable to petitioner.

It must be kept in mind that respondents did not offer evidence as to the separate value of the land, considered alone, or of any building, considered alone. Nor did the court intimate that the replacement cost of any building was the proper measure of respondents' damage. The jury was given this instruction: "* * * the Court charges you that your measure of damages in this case is the difference between the fair market value of the entire tract of land, including the buildings thereon, immediately before the taking and the fair market value of what is left immediately after the taking. After weighing and considering all the evidence, you will determine by its greater weight, the burden being upon the landowner, the respondent, what amount, if any, would be just compensation for the appropriation of their land over and above all general and special benefits, if any, accruing to said lands." It is noted that petitioner does not assign the quoted instruction as error, nor the court's prior instructions as to fair market value and special and general benefits.

Before respondents' witnesses Haywood and McDonald had testified to their opinions as to the fair market value of the Privett property before and after the taking, petitioner's counsel moved that they be permitted to examine these witnesses to determine whether they "may have taken into consideration elements and followed methods" believed by counsel to be improper. Assignments No. 6 and No. 9, based on exceptions 7, 8, 9, 13 and 14, are based on the court's denial of these motions for such preliminary examination or crossexamination of respondents' said witnesses. Each witness had testified as to his familiarity with the Privett property and with market values in the area and that he had opinions satisfactory to himself relevant to the issue. Cross-examination was the available medium whereby the weight of the testimony might be impaired by showing that the witness "considered elements and followed methods" that did not reflect fair market value either before or after the taking. Suffice to say, petitioner's counsel fully embraced the opportunity so afforded by the privilege of cross-examination.

The eight exceptions on which assignments 13, 14 and 15 are based relate to the overruling of petitioner's objections to questions asked by respondents' counsel in their cross-examination of petitioner's witness Rice. Rice had testified to his opinions as to the fair market value of the Privett property before and after the taking. The cross-examiner wanted to know whether Rice knew the values of any other property in the area near the Privett property, or the prices at which such properties had been sold; and to all these questions the witness gave negative answers. The testimony so elicited was relevant solely to the credibility of the witness, and the weight, if any, to be given his testimony. Let it be noted that none of the questions undertook to elicit testimony as to the valuations or sale prices of other properties, the questions being directed to whether the witness had opinions or knowledge with reference thereto.

Assignment No. 19 is to the refusal of the court to admit in evidence photographs of the buildings on the condemned portion of the Privett property, taken November 15, 1956, after each building had been partially demolished. The argument in support of this assignment implies that these buildings had been partially demolished by Privett before the petitioner took possession; and it is submitted "that the pictures are themselves mute evidence that the respondent Privett was stripping the buildings of certain parts which he considered of value and that he had done so before possession was surrendered to the Commission."

Petitioner's witness Southall had identified these photographs as representing the condition of these buildings on November 15, 1956, "the day the first work was done by the Commission." His testimony is silent as to whether the partial demolition of the buildings when the photographs were taken had been effected by Privett or by petitioner.

As to the charge: When considered contextually, it is quite clear that the instructions given were in accordance with the applicable rule as to measure of damages declared by this Court in Proctor v. State Highway Comm., 230 N.C. 687, 55 S.E.2d 479; North Carolina State Highway Comm. v. Black, 239 N.C. 198, 79 S.E.2d 778. Also, see City of Statesville v. Anderson, supra.

As to assignments directed to alleged errors in the statement of petitioner's contentions, the rule is that timely objection must be made, directing the court's attention to such inadvertencies so that correction thereof may be made at the time. As in Carolina Coach Co. v. Central Motor Lines, 229 N.C. 650, 50 S.E.2d 909, nothing appears here to take this case out of the general rule.

Suffice to say, none of the assignments directed to the charge show prejudicial error.

As to other assignments, petitioner has not shown prejudicial error. It is deemed unnecessary to discuss any of these assignments except those considered below.

Assignment No. 25 relates to petitioner's request that the jury be polled. The court polled the jurors in the usual manner. The assignment is directed to the court's refusal, in polling the jury, to ask specifically as to whether they knew the amount of the commissioners' award before arriving at their verdict. The jury had returned the verdict. The polling of the jury is for one purpose only, to ascertain whether the verdict as returned is the verdict of each juror and whether he then assents thereto. "It would manifestly be improper for the judge or the clerk to attempt to impeach the jurors or their verdict by seeking to ascertain by an examination of each of the jurors the grounds upon which the jurors had agreed upon their verdict." Columbus Oil Co. v. Moore, 202 N.C. 708, 163 S.E. 879, 881.

The deletion from the form of judgment drafted by petitioner's counsel of the portion of the description of the land condemned quoted in the statement of facts is the basis of assignment No. 27. Petitioner has failed to show prejudicial error. The description by metes and bounds in the judgment as signed is in accordance with the Liles map, which, by stipulation, correctly shows the original boundaries of the Privett property and the portion thereof condemned by petitioner. This description is sufficient. If the deleted (additional) description differs from the particular description by metes and bounds according to the Liles map, it should have been deleted. If the two descriptions are fully in accord, the deletion is immaterial.

On petitioner's appeal, we find no error of law deemed sufficiently prejudicial to justify a new trial.

Respondents' Appeal

In their assignment No. 1, respondents assert that the court erred in failing to sign the judgment prepared and tendered by them.

It is noted that the judgment signed, as well as that tendered by respondents, provided that respondents recover from petitioner the sum of $38,500. Respondents' said assignment does not draw attention to any specific provision of the judgment signed. If, as contended in their brief, the judgment signed contains unnecessary or inappropriate recitals or purported findings, it does not appear that respondents are prejudicially affected thereby. However, the modification indicated below should be made.

The identical description by metes and bounds of the portion condemned appears in the petition and in the judgment. This description begins: "Beginning at an iron stake in the eastern edge of the sidewalk on the eastern side of US Highway No. 1 * * * at a point S. 25 deg. 21' W. 14.5 feet distant from the iron spike where the eastern edge of the present right of way of US Highway No. 1 intersects the southern line of the 100-foot right of way of US Highway No. 74, * * *" (Italics added.) The Liles map shows that "the present right of way of US Highway No. 1" as used in said description refers to the right of way as of October 1, 1956, prior to Project No. 6644. Hence, it seems appropriate that the description in the judgment be modified by substituting in lieu of the words, "the present right of way of US Highway No. 1," the words, "the right of way of US Highway No. 1 as of October 1, 1956"; and it is so ordered.

Respondents' assignment #2 is based on their exception to the court's refusal to include in the judgment signed the following provision, viz.:

"It further appearing to the court that 60 days from the 13th day of December, 1956, the date of this judgment, is a fair and reasonable time in which to pay the amount of this judgment into the office of the Clerk of the Superior Court of Richmond County, it is hereby further considered, ordered and decreed that from and after February 13th, 1957, any unpaid balance of the principal of this judgment shall draw interest at the rate of 6% per annum until paid."

In Yancey v. North Carolina State Highway & Public Works Comm., 222 N.C. 106, 22 S.E.2d 256, this Court held that a judgment against the State Highway and Public Works Commission for the amount awarded by a jury to a landowner as compensation for the taking of his property under the right of eminent domain did not bear interest; specifically, that C.S. § 2309, now G.S. § 24-5, had no application to a judgment against the State Highway and Public Works Commission.

While the form of assignment of error is different, respondents present essentially the same question; and, recognizing the applicability of Yancey v. North Carolina State Highway & Public Works Comm., supra, respondents urge that we reconsider that decision. Attention is again called to results reached in other jurisdictions. 29 C.J.S. Eminent Domain § 333; 18 Am. Jur., Eminent Domain sec. 272; 96 A.L.R. 150 et seq.; 111 A.L.R. 1304 et seq.; 36 A.L.R. 2d 413. It is noted that Devin, J. (later C. J.), in his opinion in Yancey v. North Carolina State Highway & Public Works Comm., supra, took full notice of the fact that divergent results had been reached in other jurisdictions; and that the stated bases of decision related primarily to a construction of North Carolina statutes.

The construction then placed upon the relevant North Carolina statutes has been accepted as authoritative since 1942. If not in accord with the legislative intent, the General Assembly may provide that the landowner in such case shall receive additional compensation in the event of delay in the payment of the judgment, either in the form of interest at some specified rate or according to such other formula as may be devised to compensate the landowner for his loss, if any, on account of delay in the payment of the judgment.

It is noted that respondents' assignment of error relates solely to the refusal of the court to provide that the judgment shall draw interest at the rate of 6% per annum from February 13, 1957. On authority of Yancey v. North Carolina State Highway & Public Works Comm., supra, the refusal of the court to incorporate in its judgment the requested provision relating to interest was correct. The assignment of error does not purport to present a constitutional question.

Petitioner's appeal: No error.

Respondents' appeal: Modified and affirmed.