State ex rel. Smith v. Overstreet

575 S.W.2d 500, 1979 Tenn. LEXIS 413
CourtTennessee Supreme Court
DecidedJanuary 15, 1979
StatusPublished

This text of 575 S.W.2d 500 (State ex rel. Smith v. Overstreet) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Smith v. Overstreet, 575 S.W.2d 500, 1979 Tenn. LEXIS 413 (Tenn. 1979).

Opinion

OPINION

HARBISON, Justice.

This is the second appeal of a condemnation proceeding occasioned by a highway [501]*501project. The previous opinion of this Court is reported, State ex rel. Smith v. Overstreet, 533 S.W.2d 283 (Tenn.1976). In it the factual background and the basic claims of the parties are discussed in some detail. These need not be repeated here.

Pursuant to that opinion, the case was remanded for a new trial limited to the single issue of moving expenses, past or future, made necessary by the taking of a six-acre tract upon which respondent was conducting a sawmill and lumber business. All other damages awarded to respondent in the first trial were affirmed.

Upon retrial, the jury awarded respondent the sum of $66,572 for expenses in removing his sawmill, its equipment and a large inventory of lumber stored on the premises, together with the estimated cost of reassembling, reconnecting and installing the mill in a new location, pursuant to T.C.A. § 23-1414.

Of the foregoing amount, $24,344 represented past or estimated future costs in connection with the removal and reinstallation of the milling machinery, stakes and timbers used in stacking the inventory for drying, and sums expended by respondent in removing a portion of the inventory off the condemned premises onto adjacent property. The latter item amounted to $2500. Its propriety was not contested by the condemnor, and we assume that it was properly considered by the jury.1

In its assignments of error, petitioner contests several items included in the award for removal of equipment. In particular it attacks the credibility of respondent and his witnesses as to the estimated costs of reinstalling the sawmill at another location. Respondent vacated the condemned site early in 1972. Although he operated another sawmill elsewhere, he had not relocated or reinstalled the mill in question by the time of the second trial, which occurred in September 1976. Petitioner insists that the lapse of such a period of time, together with alleged poor storage and maintenance of the equipment on a farm owned by the respondent, demonstrates that respondent had no intention of reinstalling or reconnecting the mill, and that these estimated future expenses were not shown to be reasonably necessary within the purview of T.C.A. § 23-1414.

We are of the opinion that these assignments of error are not well taken. The credibility of the witnesses and the inferences to be drawn from their testimony were proper issues for resolution by the jury. Accordingly we affirm the award of $24,344 and overrule all assignments of error addressed to the items of damages embraced in that portion of the verdict.

The remainder of the verdict, $42,228, represented alleged freight and shipping costs incurred by respondent in connection with the sale and liquidation of his inventory of seasoned and green lumber stored on the condemned site. It is insisted by respondent that this item represented necessary costs of removal of the inventory and was recoverable as moving expenses under T.C.A. § 23-1414.

In the previous opinion of the Court, it was pointed out that respondent did not in fact remove the major portion of his inventory to another site, but rather sold it to other persons in the lumber business. In the first trial, he introduced estimates of the costs of removing the inventory, but the Court held that such costs could not be allowed on the basis of estimates unless they had in fact been incurred. In this case, all removal had occurred before the first trial, so that there was no question as to estimated future costs insofar as inventory was concerned. In the previous opinion, the Court said:

“In the present case, respondent offered testimony as to what it would have cost to remove the inventory on hand at the date of the taking, but at the same time his proof showed that he did not incur these expenses, except for approxi[502]*502mately $2500, expended in removing the remnants of the inventory ‘right at the last.’ One of the purchasers of the inventory did testify that respondent removed some of the lumber which was purchased by this witness, but the amount of expense incurred by the respondent in doing so is not shown in the record. Had this been shown, or if it can be shown at the new trial, this item of expense would be recoverable, in our opinion, under the provisions of T.C.A. § 23-1414.” 533 S.W.2d at 289.

The trial court was held to be in error in permitting the jury to consider “estimated removal costs which were never actually incurred and which in fact will never be incurred.” In addition the Court said:

“Further, the trial court should not have permitted introduction of testimony as to the alleged loss of profits from the liquidation of the inventory. No evidence along either of these lines will be permitted upon the retrial of this case. Respondent should, however, be permitted to prove the amount actually expended by him in the removal of inventory, including that sold to the purchasers, if such evidence is available and the amounts can reasonably be ascertained.” 533 S.W.2d at 290.

Upon retrial of the case, however, it again conclusively appeared that the respondent did not in fact remove anything but the remnants of his inventory to adjacent property. Aside from these remnants, he sold approximately two percent on the site, and shipped the remainder to purchasers at distant points, much of it going to a single customer in Bristol, Tennessee, a distance of some three hundred miles. Other portions were shipped to customers in North Carolina, South Carolina and Virginia. The record of the first trial was silent as to the terms of sale. At retrial, it was shown that under all of the sales contracts respondent paid the shipping costs, the sales being “F.O.B. Purchaser’s Destination.” These were the usual and customary terms upon which respondent sold his lumber, the testimony being clear that he always bore the expenses of shipping in connection with regular sales. The purchaser from Bristol testified that his company never absorbed freight costs in buying from any independent mill operator such as respondent. While respondent insisted that these were “forced” sales, and that he was required to accept a reduced price, nevertheless freight and shipping costs were a regular and necessary expense in the conduct of his business.

At the time of the taking involved in this case, T.C.A. § 23-1414 authorized recovery for removal and drayage up to a distance of ten miles from the condemned premises. Accordingly, respondent testified that the sum claimed by him as moving expenses in connection with the major portion of his inventory represented only that amount which it would have cost to transport the inventory for ten miles, although in fact most of it was shipped a much greater distance.2

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Related

State ex rel. Smith v. Overstreet
533 S.W.2d 283 (Tennessee Supreme Court, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
575 S.W.2d 500, 1979 Tenn. LEXIS 413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-smith-v-overstreet-tenn-1979.