State v. Lee , 103 Mont. 482 ( 1936 )

The only question involved on this appeal is the excessiveness of the verdict of the jury. We believe the jury was influenced by passion or prejudice in awarding plaintiff the sum of $6,500, that it disregarded the instructions of the court, paid no attention to the evidence of the only witnesses who had knowledge of the property's value and who were qualified by experience to testify with reference thereto. We are not unmindful that this court is committed to the rule that where a verdict assessing damages is based upon conflicting evidence, and there being sufficient to sustain the verdict, this court will not set it aside. (Helena L. Smelting Reduction Co. v. Lynch,25 Mont. 497, 65 P. 919.) However, it is equally true, and this court has likewise so held, that the trial court, and, of course, this applies with equal force to the jury, may not disregard uncontradicted credible evidence. (Haddox v. Northern PacificRy. Co., 43 Mont. 8, 113 P. 1119; Nichols v. New York LifeIns. Co., 88 Mont. 132. 292 P. 253; Sylvain v. Page,84 Mont. 424, 276 P. 16, 63 A.L.R. 528; McAllister v.McDonald, 40 Mont. 375, 106 P. 882; Casey v. NorthernPacific Ry., 60 Mont. 56, 198 P. 141.)

Our statute (sec. 9945, Rev. Codes) definitely fixes the rule which is to govern courts and juries in assessing compensation and damages in cases of this kind. Such compensation is to be fixed and shall be deemed to have accrued at the date of the summons, in this case March 13, 1935, and the amount of damages to be awarded is the actual value of the property condemned as of such date, and this court has held that by actual value is meant — market value. (See Northern Pacific M. Ry.Co. v. Forbis, 15 Mont. 452, 39 P. 571, 48 Am. St. Rep. 692;State v. Hoblitt, 87 Mont. 403, 288 P. 181, 185.) In the latter case the court approved the following rule as announced by Lewis in his work on Eminent Domain, third edition, volume 2, page 1236: "The proper inquiry is, not what is the value of the property for any particular use, but what is it worth on the market, in view of its adaptation for that or any other use"; also, "Speculative use, remote and conjectural possibilities are not to be taken into consideration."

There were injected into the case during the testimony given by the defendant Lee certain elements regarding his unwillingness to sell and his desire to retain the property. This testimony was incompetent and while it was stricken, it nevertheless had accomplished its purpose and the size of the verdict indicates far more than words of ours the effect it had upon the jury. The fact that plaintiff was unwilling to sell, whatever his reason for such unwillingness was not competent and was not a proper factor to be considered by the jury in awarding damages. (Ham,Yearsley Ryrie v. Northern Pacific Ry. Co., 107 Wn. 378,181 P. 898, 900.) Plaintiff brought this action to condemn certain real estate owned by the defendants, for the purpose of constructing a residence hall, buildings and acquiring grounds for the use of the Montana School of Mines in the city of Butte. In due course of time the trial court ordered the property condemned and appointed appraisers to fix the value thereof, which they determined to be $6,500. From this award all of the parties now before this court appealed. A trial was had before a jury which resulted in the assessing of the value of the property at the same sum as the appraisers had determined. Judgment was entered in accordance with this verdict. Plaintiff made a motion for a new trial which was denied. The appeal is from this judgment.

Although there are numerous specifications of error, it is stated in the brief of appellant that the only question involved is the excessiveness of the verdict.

The measure of compensation for the taking of property is its[1, 2] actual value at the date of the summons. (Sec. 9945, Rev. Codes.) The actual value mentioned in the statute is the "market value"; that is, the price that in all probability would result from fair negotiations where the seller is willing to sell and the buyer desires to buy. (State v. Hoblitt, 87 Mont. 403,288 P. 181.)

On behalf of the plaintiff three witnesses were called who were engaged in the real estate business in the city of Butte and qualified to express opinions as to the market value of this property. They estimated its value at from $3,250 to $3,600. The property consisted of a frame house with hardwood floors, the dimensions of the house being approximately 30x40 feet. It contained five rooms on one floor and a small basement with a concrete foundation. The house is located upon a single lot. Dr. Thomson, who is president of the School of Mines, testified that the property was worth $3,000. Evidence of a conversation between Dr. Thomson and one of the parties to the action was received wherein it was claimed that Dr. Thomson had offered $6,000 for the property.

The defendants had purchased the property in 1929 for $5,000 and had expended approximately $450 for repairs. Andrew McGowan testified that he resided in the vicinity of the School of Mines and was somewhat familiar with the property in question, which was about 300 feet from his home. He has had experience in building and selling property in Butte, and testified that he would say that the value of the property was from $6,500 to $6,800. One of the defendants expressed the opinion that the market value was $9,000, and another that the market value was $9,500.

The jury, in addition to hearing this testimony, viewed the[3] premises under order of the court. The purpose of viewing the premises is not the taking of testimony but to enable the jury better to understand the evidence received on the trial of the case. (State v. Bradshaw Land Livestock Co., 99 Mont. 95,47 P.2d 674.)

In the case of Silfvast v. Asplund, 99 Mont. 152, 42 P.[4] 2d 452, 455, it was argued that the finding of the court as to the reasonable rental value of lands and premises was not supported by the evidence, in that no witness testified to the exact amount found by the court. We declined to reverse the decision, and in discussing this point said: "A court or jury cannot be required, as a matter of law, to accept the conclusions of witnesses on questions of this character. They must use their own judgment in arriving at a determination as to value, basing it upon the opinions of witnesses and the facts and circumstances otherwise appearing in the evidence. (Reser v. Ziebarth,59 Mont. 7, 195 P. 98; St. John v. United States F. G. Co.,56 Mont. 197, 182 P. 128.)" We are unable here to disturb the verdict.

In passing, we desire to mention another matter worthy of[5] consideration on this appeal. The transcript in accordance with the rule of the court is typewritten. Subdivision 3 of Rule IX provides that where the transcript is not required to be printed, the appellant may file the original and two plain carbon copies. The carbon copies filed in this case are exceedingly indistinct so that it is nearly impossible to read them. This rule closes with the admonition that an infraction of the rule shall subject the appellant to dismissal of his appeal. In view of this infraction of the rule we would be justified in dismissing the appeal without any further consideration, and unless counsel can comply with this rule it will be necessary in the future to enforce the rule as written.

Judgment affirmed.

MR. CHIEF JUSTICE SANDS and ASSOCIATE JUSTICES STEWART, MATTHEWS and MORRIS concur.