Opinion
No. 31418.
November 19, 1934.
TRIAL.
On issue whether county took certain land for highway, granting instructions for county which conflicted with peremptory instruction for landowner which record showed was proper held error.
APPEAL from the Circuit Court of Carroll County.
J.W. Conger, of Winona, for appellant.
The defendant's instruction No. 1 is erroneous. It confines the jury in estimating the quantity of land taken solely to the road bed, whereas the proof shows the actual road to be fifty feet wide, and to allow the taking of a highway right of way (for No. 82 highway which this is) fifty feet wide, and then on condemnation proceedings, confine the jury to the actual road bed, or vehicular traffic bed, is not only prejudicial, unreasonable, does not respond to the evidence, but is misleading and we are simply bound to be a little undignified and say it seems ridiculous.
Is it conceivable that the court could give a straight out peremptory instruction to find for the plaintiff and lay out to the jury in detail just exactly what it must consider as damages and elements of damages in rendering that verdict, and then, in the next breath, write out and give to the jury another instruction for the defendant, this: "unless they believe from the evidence" so and so, however, they need not render that verdict for the plaintiff, but may render one for the defendant?
Instructions must be considered as a whole. All instructions taken together must correctly announce the law.
Masonite Corp. v. Lochridge, 140 So. 223, 163 Miss. 364; Ellis v. Ellis, 134 So. 150, 160 Miss. 345, 131 So. 1; McKee v. Assad, 153 So. 799; Keith case, 151 So. 916; I.C.R.R. Co. v. McGowan, 92 Miss. 603, 46 So. 55; McNeil v. Bay Springs Bank, 100 Miss. 271, 56 So. 333.
It is the duty of the trial judge to direct a verdict when testimony and reasonable inferences therefrom would not support a different finding.
Elliott v. G.M. N., 145 Miss. 768, 111 So. 146.
The controlling facts in this case were undisputed and a directed verdict was proper.
Banfill v. Byrd, 122 Miss. 288, 84 So. 227; Section 17 of the Constitution.
E.V. Hughston, of Greenwood, and S.E. Turner, of Carrollton, for appellee.
We submit that all of this testimony justified the granting of the instruction for appellee and did not justify the granting of the two instructions for the appellant, which charged the jury to find for the appellant. We insist that instructions 1 and 2 given to appellant by the court were unauthorized by the testimony in this case, because the jury was there instructed to find in favor of the plaintiff, and the court then and thereby invaded the province of the jury in passing on disputed facts.
Argued orally by J.W. Conger, for appellant.
This case has been before this court before; the decision being found in Herod v. Carroll County, 162 Miss. 78, 138 So. 800, where the judgment of the court below was reversed and the cause remanded for a new trial. It appears that this appeal is, substantially, from the same testimony as the former appeal.
The board of supervisors laid out a highway which it turned over to the state which improved the road, and the county had paid Herod up to the southeast corner of block 10 in the town of McCarley, but had not paid for other land over which the road traversed, and refused to pay for the right of way and other damages to the last-mentioned property.
The court granted a peremptory instruction for the appellant, and also instructed the jury that the appellant was entitled to recover damages according to the evidence adduced at the trial, the weight and credibility of which they were the sole judges, and that the appellant was entitled to due compensation, not only for the value of the property actually taken as specified in the claim, but also for damages, if any, resulting to him as a consequence of the taking, and that they were not to deduct therefrom anything on account of the supposed benefits incident to the public use of said property as a public road. The court also gave another instruction on the measure of damages.
The court then instructed the jury for the defendant (appellee here) that, in estimating the quantity of land taken from the appellant for road purposes, they could only consider the land actually taken, as shown by the roadbed viewed by them, and that they could not take into consideration, in their estimate, the land that belonged to the old roadbed, nor the land that the map of the town of McCarley shows was dedicated to street or road purposes adjacent to said road, nor the land of the right of way of the Columbus Greenville Railway Company, and that, unless the jury believed, from the evidence, that the defendant, Carroll county, took land from Herod which it had not paid him for, then they must find for the defendant.
It will be seen from these instructions that they are in conflict with the peremptory instruction granted for the appellant.
We think it is clear, from the record, that the peremptory instruction granted for the appellant was proper, and that the court erred in granting instructions conflicting therewith, and the judgment of the court below will be reversed, and judgment entered here as to liability, and the cause remanded for the purpose of assessing damages.
Reversed and remanded.