Opinion
Civ. 324.
February 6, 1974.
Appeal from the Circuit Court, Jefferson County, James O. Haley, J.
Arthur J. Hanes, Sp. Asst. Atty. Gen., Birmingham, for appellant.
Where, as in the instant case, the jury verdict is so excessive and against the preponderance of the evidence as to force the conclusion that the same is wrong and unjust, the motion for a new trial should be granted. Cobbs v. Malone and Collins, 92 Ala. 630, 9 So. 738; American Life Ins. Co. v. Anderson, 246 Ala. 588, 21 So.2d 791. A witness who had been in real estate and insurance business since 1946 with experience in the county involved and other parts of the state and who was familiar with the market value of land around the highway involved in the county and had been over the property for appraisal purposes was qualified to testify to the reasonable market value of the land taken. Shelby v. Baker, 269 Ala. 111, 110 So.2d 896; Southern Elect. Generating Co. v. Lance, 269 Ala. 25, 110 So.2d 627. Where in a proceeding to take for street-widening purposes a part of a tract of land containing a two-story brick residence a witness estimated the value of the building apart from the land, basing his estimate on replacemement cost, less depreciation, the court held that, although no objection was made to the reception of this testimony, it should have been disregarded by the trial court quoting from 10 R.C.L. 141, Sec. 124, to the effect that "an owner is not entitled to have buildings and fixtures valued as separate items additional to the market value of the land." St. Louis v. Turner, 331 Mo. 834, 55 S.W.2d 942; Chicago v. Callender, 396 Ill. 371, 71 N.E.2d 643.
Albert Boutwell, John H. Lavette, Birmingham, for appellees.
A person is competent to testify to his opinion as to value if he has had an opportunity for forming a correct opinion and testifies in substance that he has done so. State v. Johnson, 268 Ala. 11, 104 So.2d 915; Blount County v. Campbell, 268 Ala. 548, 109 So.2d 678; Code of Ala., Title 7, § 367 (1958 Recomp.). The degree of opportunity that a witness may have had for forming an opinion goes to the weight of the evidence and not to its admissibility. Blount County v. Campbell, 268 Ala. 548, 109 So.2d 628. Inquiries relating to competency of witnesses to express their opinions as to value of condemned land are addressed to the sound discretion of the trial court, and its decision will not be reversed on appeal except for palpable abuse. Gordon v. State, 273 Ala. 213, 137 So.2d 752. The reception of opinion evidence as to the value of realty and the sufficiency of the foundation therefor are matters largely addressed to the discretion of the trial court. Southern Elect. Generating Co. v. Leibacher, 269 Ala. 9, 110 So.2d 308. In order to justify a reversal of a condemnation award reviewing court must conclude that substantial prejudice resulted from errors charged. Sup.Ct. Rules, Rule 45; State v. Young, 275 Ala. 648, 157 So.2d 680. Evidence as to reproduction cost less depreciation is admissible on direct examination provided the adaptability of the improvement to the land is established and provided further that the prices upon which the reproduction cost is calculated are normal and not inflated. Housing Authority of Savannah v. Savannah Iron Wire Works, Inc., 91 Ga. App. 881, 87 S.E.2d 671; Housing Authority of City of Galveston v. Henderson, Tex.Civ.App., 267 S.W.2d 843; Nichols on Eminent Domain, Third Edition, Section 20.1. Inquiries relating to the competency of witnesses to express their opinions as to the value of condemned land are addressed to the sound discretion of the trial court, and its discretion will not be reversed on appeal, except for palpable abuse. Gordon v. State, 273 Ala. 213, 137 So.2d 752.
This is a condemnation case.
Appellant, State of Alabama, commenced, in the Probate Court of Jefferson County, proceedings to acquire from appellees for highway purposes, a parcel of land located in Jefferson County. The Probate Court granted condemnation and made an award for the taking of the property. From the order and award, the State appealed to the Circuit Court of Jefferson County where a trial ensued before a jury. There was a verdict for the property owners in the amount of $8,400. The motion for new trial was denied and from that denial this appeal was perfected.
The first contention argued by appellant is that the award to the property owners for the taking of their property was excessive and contrary to the great weight of the evidence.
The evidence shows that the parcel of property in question was a lot fifty feet by one hundred fifty feet, fronting on Sixtieth Street North in the City of Birmingham. On this lot was a forty year old frame house consisting of four rooms and a bath. There was testimony that the condition of the house as of the date of taking, i.e., February 13, 1969, was not good. The State's appraiser stated that in his opinion the fair market value of the property was $4,500. An appraiser for the property owners said that the market value was $10,720. A businessman in the area stated that he thought the value to be $13,000. One of the owners of the property stated that the property was valued at $10,500.
As can be seen, the witnesses' testimony as to the value of the property ranged both above and below the amount awarded by the jury as compensation, and it is clearly the province of the jury to examine this testimony, giving such weight to each witness' statements as it deserves and then finding the facts from such evidence. Gordon v. State, 273 Ala. 213, 137 So.2d 752. Moreover, the denial of the motion for new trial by the trial court on such ground will not be overturned unless it is apparent that such verdict is not supported by the great preponderance of the evidence or was obtained as the result of bias, passion or other improper motive on the part of the jury. Pappas v. Ala. Power Co., 270 Ala. 472, 119 So.2d 899.
We are not persuaded in the present case that the trial court erred in overruling the motion for new trial on the ground that the verdict was not supported by the great weight of the evidence.
Appellant's second contention is that:
"3. The trial court erred in allowing defendant's witness, Wilbur Hollins, [to] testify as to the value of the property in question without his ever having seen said property for the purpose of making an appraisal (Tr. pp. 151-218)."
Mr. Wilbur Hollins stated that he was a real estate broker and appraiser in Jefferson County. He said he had taken several courses in real estate appraising, was a member of various professional appraising organizations, had appraised real estate for private individuals and various lending agencies. He then stated that he had seen the outside of the property in question but not the inside; that he had talked to the owner of the property about its condition. He also said that he had made a study of the surrounding neighborhood, examined comparable sales of real estate and talked to a builder about construction costs. Based on his investigation of subject property and his experience in the field, he offered his opinion as to the fair market value of the property in question. The trial court, over objection, permitted him to give his opinion on the value of said property. Appellant says this was error because the witness was not sufficiently qualified to so testify.
In State v. Moore, 269 Ala. 20, 110 So.2d 635, the Supreme Court said:
"The determination of the qualifications of a witness to testify as to value is for the trial court. The credibility of a witness permitted by the trial court to testify is for the jury and where a witness testifies that he knows the property and he knows its value, he is qualified to state that value. [Citations omitted.]"
Also see Gordon v. State, supra; Blount County v. Campbell, 268 Ala. 548, 109 So.2d 678.
The discretion reposed in the trial court to determine the competency of a witness to testify will not be reviewed unless it is made to appear that the witness' testimony so admitted harmed the appellant's cause. Blount County v. Campbell, supra. No such injury has been made apparent in this case.
Appellant's third contention as argued in brief concerns the testimony of Mr. Hollins as to the value of the land separate and apart from his testimony as to the value of the improvements thereon. However, there is no assignment of error making this an issue in the appeal.
Only assignments of error properly filed and argued can be considered by an appellate court in this state. Rule 1, Supreme Court Rules, Belcher v. City Comm'r., 280 Ala. 252, 192 So.2d 454. Since there is no assignment of error supporting the third contention argued in appellant's brief, it cannot be considered by this court.
No reversible error having been argued in brief, this cause is affirmed.
Affirmed.
WRIGHT, P. J., and HOLMES, J., concur.