This cause comes to this court on appeal from the Circuit Court of Shelby County from a jury verdict and judgment thereon and the overruling of appellant's motion for a new trial in an eminent domain proceeding instituted by Shelby County to acquire land for public highway purposes under § 1 et seq. of Title 19, and § 25 of Title 23, Code 1940.
The only question involved on trial was the amount of damages and compensation to which the owners were entitled. The jury returned a verdict for $8,000. From that verdict, the judgment thereon, and the denial of its motion for a new trial, the county has taken this appeal.
The questions presented on this appeal concern what appellant alleges were various erroneous rulings on the evidence, improper argument, and ineradicably prejudicial statements made by counsel for appellees during the course of the trial. Appellant asserts that those errors lead to a reversal of the case. Appellant does not contend that the amount of the award was excessive, but we assume it implies that the alleged erroneous rulings in some way affected the valuation fixed by the jury.
Appellant has assigned thirty separate grounds as error, but has argued them in groups, so as to make available to this Court application of the rule that where assignments of error not kindred in nature are argued together and one of them is without merit, the others in the group will not be examined. Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 64 So.2d 594; Taylor v. Taylor, 251 Ala. 374, 37 So.2d 645; Moseley v. Alabama Power Co., 246 Ala. 416, 21 So.2d 305. However, many of the assignments seem to be somewhat kindred, and, in deference to counsel, we will consider them.
Assignments 1, 23, and 28 were not argued in brief by the appellant and are waived. Rule 9 of the Supreme Court Rules of Practice, Appendix, Pocket Part, Title 7, Code 1940.
We will first consider Assignments 2 and 3. After the Court had qualified the venire
Appellant insists that the trial court erred in overruling its motion for a mistrial based upon the allegedly prejudicial statements of counsel for the appellees made during that colloquy referring to the federal government and the suggested payment by it of any award. Appellant also urges that error was committed at that point during the voir dire examination of the prospective jurors when the court failed to grant a mistrial based upon the reference to the subject of liability insurance by counsel for the appellees.
Either party in both civil and criminal cases "shall have the right to examine jurors as to their qualifications, interest, or bias that would affect the trial of the case, and shall have the right, under the direction of the court, to examine said jurors as to any matter that might tend to affect their verdict." Title 30, § 52, Code 1940. Under this statute it has been held that the rights thereby given are to be exercised within the sound discretion of the court. The inquiry permitted should be liberal and extend to any and all matters touching the qualification, interest, or bias of prospective jurors. This code section "gives to parties having respective peremptory challenges or the right to a struck jury, the right within the limits of propriety and pertinence to reasonably propound questions to jurors to enable such party or his counsel to intelligently exercise that right, though the matters of which inquiry is made are not a disqualification." Dyer v. State, 241 Ala. 679, 4 So.2d 311, 313; Cox v. Bennott, 250 Ala. 698, 36 So.2d 86; Redus v. State, 243 Ala. 320, 9 So.2d 914; Rose v. Magro, 220 Ala. 120, 124 So. 296. "The right of inquiry under the statute is a broad right just so it is not exercised in bad faith or merely designed to prejudice the case." Cox v. Bennett, supra [250 Ala. 698, 36 So.2d 88]; Duke v. Gaines, 224 Ala. 519, 140 So. 600.
Close scrutiny of the statements made during this voir dire colloquy fail to impress us that counsel for appellees exhibited bad faith or attempted to, or did, prejudicially influence the case in either of the respects urged by the appellants. A proper subject of inquiry on voir dire examination is whether any of the jurors were city employees in a matter in which that municipality is or was interested. Rose v. Magro, supra; Nix v. City of Andalusia, 21 Ala.App. 439, 109 So. 182; City of Birmingham v. Lane, 210 Ala. 252, 97 So. 728. By analogy, if the federal government had an interest in the suit which might have some bearing upon the bias of a juror by virtue of its program of assistance
See also Housing Authority of City of Decatur v. Decatur Land Co., supra, which involved a proceeding for condemnation of realty by the housing authority of the city of Decatur, where we held that evidence that money for the project would be obtained from the federal government would have value on cross-examination bearing on the credibility of the opinion of a witness relative to the cost of a drainage project.
We are also persuaded that appellees were not trying to inject the question of insurance into the case, as appellants claim. The remarks of counsel for appellees concerning insurance were undoubtedly analogizing the legal problem raised by appellant's objection against asking the jurors about any employment relationship with the federal government to the familiar question of voir dire inquiry concerning interest in liability insurance companies. We take judicial notice of the numerous cases in this jurisdiction bearing upon that latter subject. Thus those remarks were in the nature of argument before the trial judge pertaining to a legal issue compounded by the appellants. Moreover such remarks could have had no misleading effect, as there was no question about insurance involved in the case. The better practice would probably have been to exclude the jury from such an argument between counsel over the propriety of the question demanded, and appellant could have made such a request. But as stated, examination of prospective jurors is within the court's control and discretion, and in the instances noted we cannot say that that discretion was abused.
Assignment 4 is as follows:
Apart from the fact that this assignment throws upon the Court the burden of searching through twenty-one pages of the transcript for the alleged prejudicial statements mentioned, the assignment itself is much too general to invite our review of the error thus assigned. Hornaday v. First Nat. Bank of Birmingham, Inc., 259 Ala. 26, 65 So.2d 678; Alabama Chemical Co. v. Hall, 212 Ala. 8, 101 So. 456; Globe & Rutgers Fire Ins. Co. v. Jones, 213 Ala. 656, 106 So. 172; Rule 1, Supreme Court Rules of Practice, Appendix, Pocket Part, Title 7, Code 1940.
The next three assignments of error attack what appellant considers to be improper statements, prejudicial and ineradicable in the minds of the jury, made by the counsel for the appellees in his oral argument to the jury. Reference to the record reveals that only the following portion of the proceeding pertaining to the first of these three assignments has been transcribed:
"By the Court: I will sustain the objection to that.
"By Mr. Wallace: We except."
Appellant charges that appellee's counsel thus made, in the quoted part, a prejudicial comparison of our eminent domain proceedings with the government of Russia. However, such fragmentary record of the proceeding at that point does not sufficiently set out the statement of the attorney in its context or show just what preceded or followed the expression in order to command review. Housing Authority of City of Decatur v. Decatur Land Co., supra; Alabama Great Southern R. Co. v. Baum, 249 Ala. 442, 31 So.2d 366; Crotwell v. Cowan, 236 Ala. 578, 184 So. 195; White v. State, 236 Ala. 124, 181 So. 109; Birmingham Loan Co. v. Klinner, Ala.App., 95 So.2d 402; Page v. Harris, 32 Ala.App. 232, 24 So.2d 268, certiorari denied 247 Ala. 323, 24 So.2d 269; Gray v. State, 19 Ala.App. 550, 98 So. 818.
Furthermore, it appears from the record that the appellant's objection was sustained to the argument found objectionable, and so far as we can determine, this rectified any injury incurred—if so.
Assignment 6 claims error in the comparison of the subject proceedings to those involving a "Mrs. Williams on U. S. Highway 31" when there was no evidence regarding the other proceedings in the record. The transcript contains only the following with respect to this assignment:
It is noted that appellees' counsel did not insist on whatever statement was made; the Court ruled it withdrawn and we fail to see any prejudicial error here.
Assignment 7 avers error in the trial court's failure to sustain appellant's objections on two separate occurrences during appellees' argument to the jury which appear in the record as follows:
It is likewise clear, just as with Assignment 5, that Assignments 6 and 7 do not merit consideration for the reason that the parts of the record upon which they are founded are too fragmentary.
Assignment 8 deals with the refusal of the trial court to permit the Resident Engineer of the State Highway Department to testify that the state planned to make Alabama Highway 91 a four lane highway through Shelby County. The exact questions to which appellees' objections were sustained are the following:
Assignment 9 asserts error in the ruling of the court excluding testimony of the Resident Engineer as to the control point of the highway at the time of trial and, apparently, also at the time of condemnation. The statement excluded is the following:
A reading of this testimony in the context in which it was made reveals that it served to place the location of the control point with reference to the project about one mile south of the subject property. It is difficult to perceive what relevance this matter has to any issue in the case, except possibly to shed some light upon whatever enhancement effect upon condemnee's remaining land a contemplated future extension of the construction project might have. For the reasons already stated in the discussion on Assignment 8 the exclusion of such testimony was without error.
Assignment 10. Reversible error is claimed when counsel for appellees inquired three successive times as to who would pay for the right of way sought to be acquired, with objections thereto being repeatedly sustained by the trial court, and then stated:
We can find only two such questions on the record pages referred to by the assignment, not three. And one question relates to payment for construction of those highways, while the other concerns payment for the right of way being obtained. It is not necessary to determine the propriety of those questions, as the trial court sustained appellant's objections to both. We cannot say prejudice was created in the minds of the jury by posing these inquiries. The statement which followed indicated that counsel was exercising the well recognized
Appellant has not sustained the burden upon him of not only showing error, but also showing that he has probably been prejudiced by the error. Berry v. Dannelly, 226 Ala. 151, 145 So. 663; Dorough v. Alabama Great Southern R. Co., 221 Ala. 305, 128 So. 602.
Assignment 11 reads as follows:
This assignment is entirely too general to invite a review.
Assignment 12 is no more than identical with the previous assignment except that it applies only to page 105 of the transcript. What was said above suffices to dispose of this assignment.
It was not error, as charged in Assignment 13, for the court to refuse to allow into evidence a sheet of paper containing figures related by the witness John D. Chichester reflecting his opinion of the market value of the subject property. This evidence was somewhat analogous to the use of a blackboard for the purpose of illustrating testimony, held to be within the sound discretion of the trial court. Clark v. Hudson, supra; Nelson v. Johnson, 264 Ala. 422, 88 So.2d 358; Crocker v. Lee, 261 Ala. 439, 74 So.2d 429. But, as pointed out in Nelson v. Johnson, supra, such media of illustration are not evidence. They may be demonstrated in the presence of the jury during the trial and final argument within the sound discretion of the trial court. Clark v. Hudson, supra; Crocker v. Lee, supra.
Assignment 22 is directed to the admission into evidence of an alleged traffic count in front of the subject property, when such traffic count was never established and when no person having any knowledge of any such traffic count was made available
Appellant urges that obvious hearsay testimony was thereby admitted over his objection. But the recitation shows no adverse ruling. In fact, the only ruling of the court is one sustaining the objection of appellant and hence this assignment avails nothing. Dorroh v. Jefferson County, supra.
Assignment 14 charges that the trial court erred in admitting in evidence during cross-examination of appellant's expert witness, over the objection of appellant, testimony relating to the value after construction of the project of contiguous properties involved in condemnation proceedings for construction of the same road project. The assignment calls the Court's attention to pages 58, 70-72, and 91 of the transcript. A reading of page 58 reveals no connection with the generally alleged error. Page 91 does not show that the witness responded to the inquiry to which objection was made and overruled, but in fact answered that he did not recall. Whatever error might have occurred on pages 70-72, where it is shown that the court overruled appellant's objections and an answer was finally elicited about the witness' expert appraisal of the little triangular piece of land contiguous to that of appellees, was cured by what was next brought out in the following colloquy:
Appellant argues that the questions dealt with the value of the property after condemnation of the subject tract and had no relation to the market value at the time of taking or to the "before and after" value of the subject parcel. But, as we understand the passage recited above, and the portion preceding, which is rather vague, the appraisal data sought to be elicited was that made at the time of the taking of the contiguous property by a different condemnation proceeding filed at the same date with the instant proceeding. This must have been clearer to those present at the trial than it is to us, for the trial judge seemed to comprehend. At any rate, if our view is correct, no reversible error is present because of the curative effect. The trial judge was on the scene, and his ruling cannot be held to be an extreme abuse of his sound judicial discretion with regard to the latitude and extent of cross-examination. It has been held that such cross-examination may even pertain to irrelevant and immaterial matters as bearing on the memory, accuracy, credibility, interest or sincerity of the witness. Housing Authority of City of Decatur v. Decatur Land Co., supra, and cases therein cited. See also Pryor v. Limestone County, 230 Ala. 295, 160 So. 700.
Assignment 15 relates to the action of the court in allowing a witness for the appellee to testify, over the objection and exception of appellant, to the reasonable market value of the 8.03 acres being taken. The evidence shows that the witness had been in the real estate and insurance business since 1946 with experience in Shelby County and other parts of the state and that he was familiar with the market value of land around Highway 91 in Shelby County. The witness had been over the property and other adjacent land for appraisal purposes. He was therefore shown to be qualified.
For the same reasons appellant cannot avail by Assignment 19, which raises the same objection as number 15 except as to another witness. The witness was property and sufficiently qualified to testify as to this matter, and the testimony, as shown above, was admissible. He was a property owner in Shelby County, having lived on the Florida Short Route near Chelsea for twenty years. He was familiar with various sales and offers for sale of property in and around Shelby County, and he knew the value of lands in and around the subject property. He had known the subject property for twenty years, having passed it frequently. And he testified that he knew the reasonable market value of the subject property.
Assignments 16, 17, and 18 all concern the alleged absence of a showing that certain witnesses of appellee called to testify as to market values of the property in question were qualified to do so. We have examined the record carefully and conclude that enough was adduced to satisfy that requirement. The general rule applicable here is that the test of qualification has been prima facie met when it is proved that the witness testifies he knows the property and the market value of the same. Housing Authority of City of Decatur v. Decatur Land Co., supra; American Ins. Co. of Newark, N. J. v. Fuller, 224 Ala. 387, 140 So. 555; 159 A.L.R. 30. Of course, the weight and credibility to be attributed to each expert witness was for the jury. Alabama Power Co. v. Henson, 237 Ala. 561, 187 So. 718.
The import of Assignment 20 is that the trial court erroneously permitted the appellee, Jack Baker, to testify to the market value of the property on the sole basis that he was the owner of the property. This was not error. An owner of land, by virtue of his ownership, may testify as to its value. Alabama Great Southern R. Co. v. Russell, 35 Ala.App. 345, 48 So.2d 239, and authorities there cited.
We cannot say that this statement was manifestly irrelevant or illegal.
Assignment 24 charges that the trial court erred in permitting the witness Alvin Stinson to testify that a service station on U. S. Highway 31, located some distance away, suffered a forty per cent loss of business after construction of a four lane highway.
It is not clear to which question the court referred as the one originally asked or whether that, in fact, was the one asked next by counsel. Nevertheless, no timely objection or motion to exclude was interposed, and there is nothing to review. Appellant's other objections raised during that interlude were sustained.
Assignments 26 and 27 relate to the action of the court in admitting in evidence, and overruling appellant's objections and motions to exclude thereto, the testimony of Robert Powers to the effect that his volume of sales decreased after a four lane highway was constructed near his service station and that the amount of this decrease was approximaetly forty per cent. As noted in the discussion on Assignment 25, the objections and motions to exclude were all general. One motion was stated, "We move to exclude the answer on the same grounds". But no grounds had been previously specified. We cannot say that the testimony thus adduced was clearly incompetent, irrelevant, immaterial, or illegal. Witness Chichester for the appellant had stated on direct examination that one of the tests of establishing value of a piece of property was the income which it produced. He further testified that the new four lane highway would enhance the value of the property. It was further shown by witnesses for the appellee that prior to the institution of the condemnation proceedings that the land being taken was suitable for a filling station site. Appellant argues that the courts have universally held that an owner may not receive compensation for
Assignment 29 is that the trial court erred in receiving in evidence, over appellant's objections, a title insurance policy on the subject property. It is our understanding of this assignment, without more specificity, that the appellant objects to the introduction into evidence of the policy itself. The transcript, however, reveals that after the policy was marked "Defendant's Exhibit No. 4", and a few preliminary questions were asked, and counsel for appellees finally offered the policy by saying, "We introduce this in evidence", no objection was made by appellant and consequently no ruling was had. This assignment is not open for review for another reason. The policy was not transcribed into and made a part of the record, but in lieu thereof apparently the original copy of the policy has been attached to the margin of page 220 of the record, with the statement in parentheses on that page, presumably by the clerk of the court, as follows:
Supreme Court Rule 41 (Old Rule 47) has not been complied with in this respect. Starkey v. Bryant, 257 Ala. 557, 59 So.2d 796. See also Calvert v. Calvert, 265 Ala. 529, 92 So.2d 891. There is still another reason why we think this assignment must fall. It is true, as appellant contends, that the amount for which property is insured does not afford a test of value of sufficient probative effect to be admissible. Alabama Great Southern Railroad Co. v. Loveman Compress Co., 196 Ala. 683, 72 So. 311; City of Dothan v. Thomley, 220 Ala. 618, 127 So. 193; 31 C.J.S Evidence § 182, p. 885. But there was another purpose for which the policy could have been admissible. Appellant had produced during their cross-examination of appellee, Jack Baker, the deed by which the appellee had obtained title to the subject property. The deed was admitted into evidence, and it was further elicited from the appellee, as the face of the deed bears out, that the recited consideration therefor was $12,000. Appellee's testimony throughout the trial was that he paid $25,000 for the land. By the introduction of the title insurance policy on the land on the re-direct examination of the appellee, it was the obvious purpose of counsel for appellees to show the true consideration of the deed and to corroborate the testimony of appellee as to what he had in fact paid for the land. This is supported by the fact that the evidence shows that the policy was a part of the whole transaction negotiated by Baker's lawyers. It is well settled that the consideration stated in a deed is only prima facie, and the true consideration may be found from the acts, words, and writing of the parties. Pruett v. First Nat. Bank of Anniston, 229 Ala. 441, 157 So. 846; Union Bank & Trust Co. v. Royall, 226 Ala. 670, 148 So. 399; Gilliland v. Hawkins, 216 Ala. 97, 112 So. 454; Harris v. Geneva Mill Co., 209 Ala. 538, 96 So. 622; Harraway v. Harraway, 136 Ala. 499, 34 So. 836. And the general rule prohibiting the variance of a writing by parol evidence also does not exclude such evidence in an action between a party to the instrument and a stranger, nor is it binding upon either of the parties in their controversies with third persons. Harris v. Geneva Mill Co., supra; Jones v. First Nat. Bank of Greensboro, 206 Ala. 203, 89 So. 437. Furthermore, the appellant, in
Assignment 30 asserts that error was committed when counsel for appellees was permitted, over appellant's objections, to read in the presence of the jury the amount and substance of a mortgage on the subject property. The assignment seems to be too general in that particular objections and rulings intended on the several appearing on the page in the record mentioned are not specified. The record shows that the court sustained appellant's objection to the introduction of the mortgage. Appellees then renewed their offer to introduce the mortgage, but were interrupted with an objection, which was overruled. The completed offer is no more than the following:
Appellant then requested the court to instruct the jury that the offer was not evidence and should not be considered by them. The court complied with this request and reminded the jury that the objection to the introduction of the mortgage had been sustained. An objection by appellant to a further offer by appellee to introduce a mortgage release was sustained. We can find no error in this transaction.
Appellant assigns as error in Assignment 21 that the trial court erred in denying appellant's motion for a new trial due to repeated statements by counsel for appellees regarding an alleged $25,000 mortgage on the subject property and the issuance of a title insurance policy in the same amount. The motion appellant made, as shown in the record on page 60, was not for a new trial but for a mistrial. Overlooking this defect, we conclude that there is no merit in this assignment.
We are not prepared to say that the various statements throughout the trial individually assigned as being prejudicially erroneous are, in their cumulative effect, so infectious as to require reversal of the case as argued by the appellant on the authority of such cases as Blue v. State, 246 Ala. 73, 19 So.2d 11.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur.