City of Tuscaloosa v. Hill , 14 Ala. App. 541 ( 1915 )

BROWN, J.

This is a proceeding by the appellant under the local improvement statutes authorizing municipalities to levy the costs of laying sidewalks, curbing, paving, and street drains, not in excess of special benefits reflected in the increased value, against the abutting and drained property. — Code, § 1359, et seq. The appellee appeared before the board of city commissioners and filed objections to the proposed assessment, as authorized by section 1381 of the Code, and her objections being overruled by the board, she appealed to the Tuscaloosa county court. — Code, §§ 1389, 1390.

The appellee insisted in the trial court: First, that the value of the property was not enhanced by the improvements, and no assessment at all should be allowed; and, second, that the assessment made was greater than the special benefits reflected in the increased value of the property, and therefore excessive. The appellant, on the other hand, insisted that the increased value of the property by reason of the improvements was equal to or more than the assessment. This presented an issue of fact which was submitted to the jury, and in this the appellant insists there was error.

(1, 2) While, no doubt, it is within legislative competency to authorize the trial of such issues in cases arising under thé taxing power to be determined by a court without a jury, without impinging constitutional provisions (Cooley on Taxation [3d Ed.] pp. 5155; Page & Jones on Taxation by Assessment, §§ 202, 1347; Mayor and Aldermen of Birmingham v. Klein, 89 Ala. 461, 7 South. 386, 8 L. R. A. 360; Friend v. Barber, 181 Ala. 324; McQuillan’s Mun. Corp. §§ 2129, 2915), the question here presented does not involve the question and scope of legislative authority, but of legislative intent. In the absence of express provision in the statute requiring the court, without calling a jury, to try the issues of fact, the statute (Code, § 1394) is open to the construction that “the court” therein referred to is a court constituted of a judge and jury, and this view is strengthened by considering this section in the light of sections 1389 and 1390, authorizing appeals to only “the circuit court or any other court of like jurisdiction.” The question is authoritatively settled in City of Huntsville v. Pulley, 187 Ala. 367, 65 South. 405, and the rulings of the trial court in accord with that case were correct.

(3) The practice of allowing counsel, in the argument of a cause to the jury, to read to the jury, in the presence of the court, as a part of their argument, extracts from the published decisions of the Supreme and Appellate courts of the state, when pertinent to the questions involved in the case on trial and containing correct expositions of the law applicable thereto, has been repeatedly approved, and from the repeated presentation of questions arising thereunder, as shown by the reported cases, we may assume has become the universal practice in this state.—Stewart v. State, 78 Ala. 436; Cahaba Southern Mining Co. v. Pratt, 146 Ala. 245, 40 South. 943; Robinson v. State, 155 Ala. 67, 45 South. 916. In the case last cited the court, in justifying the argument, said: It was not the assertion of any fact, but simply an argument based on hypothetical statement.”

The practice of using in argument facts not in evidence or resting in legitimate inferences from the evidence has never been approved (B. R., L. & P. Co. v. Drennen, 175 Ala. 349, 57 South. 876, Ann. Cas. 1914C, 1037; Wilhite v. Fricks, 169 Ala. 76, 53 South. 157; Jones v. State, 170 Ala. 76, 54 South. 500; Jackson v. State, 2 Ala. App. 234, 57 South. 110, 7 Mayf. Dig. 57) ; and it can make no difference that the facts used in argument are contained in a reported decision of the Supreme Court and there stated as a basis for the pronouncement of that court in passing on the propriety of the ruling of the trial court refusing to disturb the verdict of a jury iri a case involving similar facts and issues to the one on trial, when that pronouncement does not contain the statement of some proposition of law pertinent to the question pending before the jury.

In Cross v. State, 68 Ala. 476, the Supreme Court, in disposing of a question similar to the one here presented, said:

“In a single instance we think the presiding judge permitted counsel to transcend the legitimate boundary of discussion. In his closing argument the prosecuting attorney was allowed to state as facts what he alleged had occurred in the perpetration of another homicide having some alleged features analogous to those developed on this trial. Now, there was not only no evidence before the jury of that other homicide or its details, but such evidence, if offered, would have been illegal and irrelevant. This was not argument, and could furnish no safe or permsisible aid to the jury in considering and weighing the testimony before them. The jury in their deliberations should consider no facts save those given in evidence.”

In Wiliams v. State, 83 Ala. 68, 3 South. 743, the court said:

“The court did not err in refusing to permit counsel, in the course of his argument, to read to the jury the facts as reported in Brown v. State, 46 Ala. 176. These facts were not in evidence, would not have been admissible, and could not have been properly considered by the jury. The inevitable effect of putting facts before the jury foreign and irrelevant to the case would have been to institute a comparison between such facts and the facts of the case on trial, and thus have diverted their attention to extraneous issues.”

(4) The excerpts of the opinion in City of Huntsville v. Pulley, were specifically pointed out to the court before they were read as a part of the argument by opposing counsel, and the objection was overruled. The excerpts contained the statement of facts in another case, and the result of the trial before a jury, matters wholly incompetent and improper to be considered by the jury in the case on trial, and in them no principle of law was stated applicable to the issues on trial. The objection should have been sustained and the argument arrested by the trial court.—B. R., L. & P. Co. v. Drennen, supra; Cross v. State, 68 Ala. 476.

In view of the result of the trial and the conflicting evidence on the issues before the jury, it is apparent that injury resulted from this error,'and the judgment of the trial court must be reversed.

(5) The durability of the improvements made by the appellant the cost of which it was seeking to fix as a lien on appellee’s property was pertinent to the issues before the jury, and there was no error in allowing the witness Kay, who had qualified as an expert engineer, to answer the question as to the time that would elapse before repairs in the work would be necessary.— City of Huntsville v. Pulley, supra; Page & Jones on Taxation by Assessment, §§ 922, 1271, 1272, 1313.

(6) The question as to the effect the improvements had on other property than that in controversy was wholly immaterial to the issues in the case, and the court did not err in sustaining the objection to the questions asked the witness Rosenau on cross-examination about the effect the improvements had on the value •of property of a third person, or whether the assessment made against the property of such third person had been paid.

(7, 8) “Where the question is whether property has been either damaged or benefited, the proper form of inquiry, if specific, should be as to' the value of the property before and after the damnifying or benefiting act has taken effect.”—City of Huntsville v. Pulley, supra; Town of Eutaw v. Botnick, 150 Ala. 429, 43 South. 739. And the witness should not be allowed to state that the property has or has not been damaged or has or has not been benefited. This is a question for the jury.—Gosdin v. Williams, 151 Ala. 592, 44 South. 611; Central of Georgia R. R. Co. v. Keyton, 148 Ala. 675, 41 South. 918; Atlanta & Birmingham R. R. Co. v. Brown, 158 Ala. 607, 48 South. 73; Sloss-Sheffield Steel & Iron Co. v. Mitchell, 181 Ala. 576, 61 South. 937.

When these rules are applied, it is manifest that the court ruled correctly as to questions arising during the examination of the witness Yerby.

(9) No objection was made to the competency of the witness Denny to testify as to the value of the property before and after the improvement, and he was allowed to testify fully on this subject. Therefore his “idea as to the extent of his experience and observation in the way of studying the question as to whether or not improved paved streets and well-drained streets add to the value of property adjacent thereto or not” was wholly immaterial and irrelevant, and the court did not err in sustaining appellee’s objection to the question seeking to prove the experience and observation of the witness.

(10) While it appears from the record that the witness Rosenau was examined touching his conduct in inducing the commission to lay sidewalks and make street improvements, it does not show that a predicate was laid as to the time and place of such conversation, and, in the absence of such predicate, it was not error to sustain the objection to the question asked the witness Weatherford for the purpose of showing a contradictory statement made by Rosenau.

(11) Allowing the jury to view the premises was a matter within the discretion of the trial court, which, according to the great weight of authority, will not be reviéwed on appeal in the absence of gross abuse.—L. & N. R. R. Co. v. Wilson, 162 Ala. 588, 50 South. 188; Rodgers v. Hodge, 83 S. C. 569, 65 S. E. 819, 18 Ann. Cas. 729; Page & Jones on Taxation by Assessment, §§ 922, 1322.

The evidence as to the benefits accruing to the property by reason of the improvements was conflicting, and, after a careful review thereof, and allowing all reasonable presumptions of the correctness of the verdict, we áre not able to say that the preponderance of the evidence against it is so decided as to clearly convince us that it is wrong and unjust. The assignment of error, therefore, based on the refusal of a new trial, cannot be sustained.—Cobb v. Malone, 92 Ala. 635, 9 South. 738; City of Huntsville v. Pulley, supra.

(12) Two cases against appellee were tried together, one involving the assessment for laying the sidewalk and street paving, and the other for laying storm sewers and draining the property. Therefore it was error for the court to give charges authorizing a general verdict for the defendant on a failure of the evidence to show benefits to the property as to only one class of improvements. Charges 1, 8, and 14 were of this class, but the only branch of the case before us for review is that predicated on the paving assessment, and injury is not shown from the giving of those charges.

(13) Charge 3 invaded the province of the jury, and was erroneous in that it assumed that the assessment exceeded the increase in the value of the property.

(14-16) Charges 4, 9, 10, 11,. and 12 were properly given.— Duke v. City of Anniston, 5 Ala. App. 348, 60 South. 447.

Charge 5 undertakes to draw a distinction between the increase in market value arising from general benefits and such increase in value arising from special benefits which is not recognized by the courts of this state. In the Town of Eutaw v. Botnick the Supreme Court observed: “Some of the cases draw the distinction between special benefits and general benefits, and others indicate that the line between the two is imaginary. However that may be, the general trend of the best authorities is that the simple question is whether or not, taking all into consideration, the property has deteriorated in value as the result of the work. * * * Of course, if it has increased in value, the owner has not been damaged; in other words, the test is the difference between the market value before and after the work done.”—Town of Eutaw v. Botnick, 150 Ala. 434, 435, 43 South. 741; Enterprise Lumber Co. v. Porter & Newton, 155 Ala. 426, 46 South. 773; Duke v. City of Anniston, supra.

This charge was erroneous, and should have been refused.

For the errors pointed out, the judgment of the county court is reversed, and the cause remanded.

Reversed and remanded.