#### Ark. State Hwy. Comm. v. James Henry Clay et ux

5-4037

408 S. W. 2d 600

Opinion delivered November 28, 1966

*502 George 0. Green and Don Langston, for appellant.

Robinson & Rogers and N. D. Edwards, for appellee.

Paul Ward, Justice.

This is an eminent domain proceeding.

On May 25,1965 the Arkansas State Highway Commission (appellant) filed suit to condemn several lots and parts of lots owned by James Henry Clay and his wife (appellees) for use in construction of Interstate Highway No. 40. A jury verdict awarded appellees the sum of $22,500.

When appellant attempted to prosecute an appeal to this Court it learned that, due to a defect in the reporter’s recording machine, all of the testimony and proceedings had not been recorded and that a complete record could not be furnished. Thereupon appellant prepared and served on appellees its statement of evidence and proceedings in accordance with the provisions of Ark. Stat. Ann. § 27-2127.11 (Repl. 1962). Then appellees filed objections and amendments to appellant’s statement (in accord with the same statute) over the objections of appellant.

On June 9, 1966 the trial court approved the statements of both parties, and on the same day appellant 'filed a motion for a new trial on the ground that the failure to obtain a complete record was the result of the unavoidable situation above mentioned. The motion was denied, and this appeal follows.

One. We find no merit in appellant’s contention the trial court erred in refusing to grant a new trial. Appellant’s remedy was to prepare its “statement of the evidence or proceedings . . .” by the method provided in said section 27-2127.11. This section has pre*503viously been construed by tbis Court (against tbe contention of appellant) in Mowrey v. Coleman, 224 Ark. 979, 277 S. W. 2d 481, and Tomlin v. Reynolds Mining Corp., 231 Ark. 393, 329 S. W. 2d 552.

Two. As previously mentioned, appellant prepared a statement and presented it to tbe trial court for approval pursuant to tbe statute above mentioned. A copy of tbis statement was served on appellees in due time. It appears, however, tbat appellee failed to serve its objections or proposed amendments within tbe time (ten days) required by the same statute. However, tbe trial court approved appellees’ statement. We think tbe court was in error, but we also think it was harmless error. It must be kept in mind (as was referred to in tbe Mowery case, supra) tbat tbe jury bad already reached its decision before it was learned tbat a complete transcript of tbe testimony and proceedings could not be obtained. They beard and considered all tbe testimony. Therefore tbe burden was on appellant to show error or lack of substantial evidence to support the verdict. As pointed out hereafter, appellant has not met tbat burden.

Three. We do not agree with the contention of appellant tbat tbe trial court should have declared a mistrial.

During tbe trial appellees’ witnesses made references to damages caused to lots outside of tbe taking. Each time such a reference was made appellant objected, and the trial court sustained the objection. On one occasion tbe trial court reprimanded appellees rather severely. At no time did tbe witnesses attempt to say to what extent appellee had been damaged. We are unable to see bow tbe jury was prejudiced in favor of appellees or against appellant. In this connection appellant calls particular attention to remarks made by appellees’ attorney in addressing tbe jury, to which objection was made by appellant. All tbe attorney said was: “. . .we are not permitted under tbe law ... to talk about tbis *504type of damage. ” . . . “ The court has instructed us that we could not consider those damages in arriving at our damages.” The trial court was not asked to give the jury any cautionary instruction, and we do not think it was an abuse of discretion for the court to refuse a new trial.

Four. Finally, appellant contends “there is no substantial evidence to support the verdict”. Again, we do not agree.

The record contains twenty three pages of testimony which the court reporter verified, and to which appellant makes no objection. Included therein is the testimony of several qualified witnesses each of whom valued the property damage at approximately $8,000 more than the amount fixed by the jury.

Affirmed.