Kansas State Highway Commission v. Roepke ( 1968 )

The opinion of the court was delivered by

Price, C. J.:

This appeal arises out of a condemnation proceeding. Following a trial the court sustained the landowners’ motion for a new trial on the ground the verdict was contrary to the evidence.

A second trial was had in which the jury returned a verdict in excess of that returned in the first trial. This verdict was approved and judgment was entered thereon.

The state highway commission then filed an appeal from the earlier order granting a new trial.

The question involved is whether the verdict in the first trial was contrary to the evidence.

For convenience — the state highway commission will be referred to as plaintiff and the landowners as defendants.

The background of the matter giving rise to this appeal is not in dispute.

In connection with a highway improvement project plaintiff condemned land owned by defendants. They appealed from the award of the appraisers. The case was tried before a jury on April 15, 1966. As often happens in cases of this nature, there was considerable variance in the evidence as to the value of defendants’ property — both before and after the taking. In order to assist the jury in arriving at a verdict a summary of the “before and after” values testified to was prepared and submitted to the jury along with three special questions, with the consent of all parties. This “chart” and special questions — including the answers — were as follow:

“VALUATION SUMMATION CHART BY WITNESSES

SPECIAL QUESTIONS

1. What was the market value of the entire property and interest immediately before the taking?

Answer: $32,000.

2. What was the market value of the remaining property and interest immediately after the taking?

Answer: $27,330.

3. What is the difference between the two amounts, by subtracting the second from the first, $4,670, which difference will be the amount of your award?

It will be seen that the jury’s “mathematics” came out correct— that is — $32,000 less $27,330 equals $4,670.

Defendants filed a motion for a new trial on two grounds— (1) that the verdict was contrary to the evidence, and (2) that the court erred in denying the motion to strike the testimony of Richard Heeney, a witness for plaintiff.

On may 6, 1966, the court set aside the verdict and sustained defendants’ motion for a new trial.

On September 21, 1966, just before the start of the second trial, plaintiff orally moved the court to rescind and set aside its order of May 6, 1966, granting a new trial. This motion was overruled— and the parties proceeded to trial.

We are told that the second trial was, for all practical purposes, a “rerun” of the first trial. Be that as it may — this time the jury found the “before and after” values to be $36,000 and $28,000 — and returned a verdict for the difference — $8,000.

Plaintiff filed a motion to set aside this verdict and to rescind and vacate the order of May 6, 1966, granting a new trial to defendants, and to enter judgment on the verdict in the first trial.

On October 18, 1966, this motion was denied. The verdict in the second trial was approved and judgment on it was entered accordingly.

On December 5 and 16, 1966 (see K. S. A. 60-2103) plaintiff appealed from all of the foregoing adverse orders and urges the end result be that this court direct that judgment be entered on the verdict in the first trial.

In passing — it should be stated that no contention as to procedure is made in this case. Defendants concede that under K. S. A. 60-2102 (a) the order of May 6, 1966, granting a new trial was not a final decision in the action and therefore not appealable until after the second trial, and that if it should be determined that the order granting a new trial was erroneous this court may order the verdict in the first trial to be reinstated (Oertel v. Phillips, 197 Kan. 113, 115, 116, 415 P. 2d 223, and Landscape Development Co. v. Kansas City P. & L. Co., 197 Kan. 126, 127, 415 P. 2d 398.).

In sustaining defendants’ motion for a new trial and in denying plaintiff’s subsequent motions — the trial court commented at length. Although some “concern” was expressed about the alleged confusion on the part of the witness Heeney, the court stated that it was for the jury to determine whether he had “rehabilitated” himself and to weigh his testimony, and it is clear the fact the testimony of this witness was not stricken was no part of the basis of the order granting a new trial.

It likewise is clear the new trial was granted because the trial court was of the opinion the verdict was contrary to the evidence. It compared the verdict with other condemnation verdicts returned by the same panel of jurors, and stated that—

“This is the only case in which the jury returned a verdict which placed the difference between the before and after values at some $305.00 below the lowest figure testified to by a witness for the state highway commission.”

Ry the above statement it is clear the court meant that the verdict was lower than the difference in value testified to by any one witness — such witness being Orval Lohse — who placed it at $4,975. (In passing, it is noted that both the “before” and “after” values of the witness Lohse were lower than the figures of the other witnesses.) This theory was repeated by the trial court throughout its comments—

“Now, to me the most important question here is the matter raised by the landowner in the first paragraph of his motion. And that is, that the verdict was contrary to the evidence and in elucidating on that and explaining that the amount of the verdict was not within die range of the evidence, it was a lesser amount than any witness placed on the difference.”

“The figure brought in by the jury in this case was not within the range of any of the testimony.”

“And there just isn’t any combination that I can figure out in studying these figures, that the jury used in which they could arrive at this verdict of $4,670.00.”

“If this original verdict had been within the range of the evidence, I feel most likely that the court would have made a different ruling.”

Some mention also was made of the fact the jury viewed the premises. The provision of K. S. A. 60-248 (b), however, to the effect a view by the jury shall not be considered by the court in determining any question of the sufficiency or insufficiency of evidence admitted in an action — appears not to have formed any of the basis for the granting of the new trial.

K. S. A. 26-513 (c), being a part of the General Condemnation Law, effective January 1, 1964, reads—

“Partial taking. If only a part of a tract of land or interest is taken, the compensation and measure of damages are the difference between the value of the entire property or interest immediately before the taking, and the value of that portion of the tract or interest remaining immediately after the taking.”

The jury was so instructed, and was properly instructed on all matters — including the view of the premises, as to which the jury was told—

“You have viewed the premises. You may consider what you have seen along with the other evidence in the case in arriving at the amount of the compensation to be awarded to the property owners.”

We do not understand the law to be that in a case of this kind a verdict may not be lower than the difference testified to by any one witness. Just as here, there usually is considerable variance in the testimony as to “before and after” value. A jury is entitled to consider all of the evidence — not just that of one witness. Here the evidence of the “before” value ranged from $29,500 to $40,000. The jury found it to be $32,000. The evidence of the “after” value ranged from $24,525 to $31,400. The jury found it to be $27,330. Both figures found by the jury were within the evidence — and the verdict represented the difference. We realize it could be argued that theoretically, the jury, under the evidence, could have found the “after” value to be higher than the “before” value — see amounts testified to by witnesses Lohse and Heeney — and yet the verdict would have been within the range” of the evidence. Courts are not so impotent, however, as to be unable to right such a situation should it arise.

In conclusion — the order of May 6, 1966, granting a new trial on the ground the verdict was contrary to the evidence is reversed with directions to reinstate the verdict in the first trial and to enter judgment thereon.