Appeal, No. 232, March T., 1953, from order of Court of Common Pleas of Washington County, August T., 1951, No. 42, in case of J. Boyd Crumrine v. Washington County Housing Authority. Order reversed.
Thomas L. Anderson, with him Frank E. Pireaux and Crumrine & Pireaux, for appellant.
P. Vincent Marino, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
Plaintiff-owner appeals from an order of court granting a new trial in a land damage case.
The defendant, Washington County Housing Authority, took by eminent domain 8.9 acres comprising about 1/3 of the frontage of the plaintiff's 26.2 acres, located about one-half mile from Fredericktown. The owner intended the land to be used for the building of homes, and plotted most of the area for that purpose. The portion taken includes buildings, which rented for $25.00 per month, and most of the level part of the premises, the remainder being not very suitable for building lots. The sole dispute between the parties is the value of th land, or the loss suffered by the owner.
The viewers awarded $22.700 and the Housing Authority appealed. The jury, after testimony taken and after a view, returned a verdict of $25,070. Plaintiff fixed the value of $40,000 before condemnation, with a loss of $35,000, and his expert witnesses determined the loss to be $31,000, $33,000 and $35,000 respectively. Defendant's expert witnesses respectively gave their opinion that the loss was $8,100 and $12,500.
The defendant's motion for a new trial was disposed of by the court as follows: That since the various witnesses' estimates of loss ranged from $8,100 to $35,000, it could not say "that the verdict is contrary to or not supported by evidence." The court determined, however, "that the amount awarded by the jury is to some extent excessive and that, while it is not in... [the court's] province to determine the amount which should be awarded,... [it] should, rather than simply grant a new trial, give the parties an opportunity to arrive at an adjustment by making an alternative decree. Since another trial may be necessary,... [it is] not disposed at this time to analyze further the evidence or... reasons for reaching this conclusion."
The court then ordered that if the plaintiff would file a remittitur of all in excess of $20,000 a new trial would be refused; otherwise it would be granted. Here, then we have a case where the court in its order granting a new trial fully accredits the testimony of the plaintiff as to the damages sustained, and gives no reason for reducing the verdict $5,000 by an alternative decree. The plaintiff declined to file the remittitur, order for new trial was entered, and the plaintiff appealed.
The only question here is whether this was an abuse of discretion by the court below. In the first place it must be kept in mind that the only question before the jury was the amount of damages suffered by the plaintiff for the taking of his land. This is not a case where, as in personal injury cases, the jury considers pain and suffering and loss of earning power, and where no evidence can be taken to fix the dollar value of the loss. The simple question here is: Under the evidence taken, what was the loss to the plaintiff for the taking of his land? We repeat: the court stated that it could not find "that the verdict is contrary to or not supported by evidence." It did not say that it found against the credibility of the plaintiff's witnesses. It did say that "while it is not in... [the court's] province to determine the amount which should be awarded,... [it] should, rather than simply ...