State Highway Comm'n v. Schmidt

MR. JUSTICE CASTLES:

I concur in the result reached in the majority opinion, but not in all that is said.

It appears herein that the only reason the trial judge used additur was, as he expressed it, the jury award was “deemed inadequate.” By what appears to be more than a coincidence, the amount of the additur is such as to bring the final amount almost up to the penny of 75 percent of the Commissioner’s award, and the amount actually “drawn down” by the landowner as allowed by statute, R.C.M.1947, § 93-9920.

The verdict of the jury was for $30,000, divided in the verdict as $25,000 for the value of the property taken, and $5,000 for damages to the remainder.

The Commissioner’s report had been divided as to the two defendants’ individual title ownership, with that in Schmidt as $7,579.50 and that in Meinecke as $42,950.50, for a total of $50,530. On these Commissioner’s awards, the State deposited $50,000 and were placed in possession.

The amount of the “additur” by the district judge was $7,-897.45. This, added to the $30,000 jury verdict is almost exactly 75 percent of the Commissioner’s award, being only five cents difference. The “additur” figure is not broken down into property taken or severance so we are left to speculate wherein the damages are “deemed inadequate.”

To add further to what we have referred to as more than a coincidence, the testimony as to values by the various witnesses is as follows:

Defendants’ Value Witnesses Just Compensation

Arthur Schmidt $156,825.00 less certain amounts

Murray Lind 50.000. 00

Bill Calvert 85.000. 00 to 120,000.00

Plaintiff’s Value Witnesses Just Compensation

Evan Martinson $ 38,189.00

Bruce Eslick 23,375.00

Ethan Ford 40,525.00

The seemingly large differences between the values placed by plaintiff’s witnesses is explained to some measure by a difference in each witness’s version of the “highest and best use.” Generally speaking, defendants’ witnesses placed a general over-all value on a “shopping center”; whereas State’s witnesses placed specific values on commercial and residential sites. At any rate, each of the values is different from the other, and different too, from the trial judge’s “additur” figure.

Then, too, it is observed that the jury’s figure ivas within the range of testimony.

Actually, the only argument advanced in respondents’ brief to uphold the trial court’s order is that this would give “flexibility” to jury verdicts. Respondents contend that this was “the unbalanced jury of inexperienced housewives and persons with no property ownership experience at all * * It may be that there is merit in that argument, but if so, it should be addressed to the Legislature.

Returning now to “additur,” I would not say that the principle could never be used by a trial court, if in its use, jury errors, for example, accepting testimony stricken from the record, are being corrected. But, where as here, none of the testimony was questioned, to permit this is to invade the province of the jury for no legal or valid reason. I would not go so far as indicated by Mr. Justice John C. Harrison’s Opinion in declaring that never, under our statutes, could a court use additur.