Bowers v. Fulton County

• Decision Date: 06 May 1970
• Docket Number: No. 2,No. 45070,45070,2
• Citation: 122 Ga.App. 45,176 S.E.2d 219
• Parties: Caleb J. BOWERS v. FULTON COUNTY
• Court: Georgia Court of Appeals

Page 219

176 S.E.2d 219

122 Ga.App. 45

Caleb J. BOWERS v. FULTON COUNTY.

No. 45070.

Court of Appeals of Georgia, Division No. 2.

May 6, 1970.

Rehearing Denied June 16, 1970.

Certiorari Granted Nov. 12, 1970.

Houston White, Sr., Red Oak, for appellant.

Harold Sheats, Paul H. Anderson, George Gillon, Atlanta, for appellee.

Arthur K. Bolton, Atty. Gen., Richard L. Chambers, Asst. Atty. Gen., Harold N. Hill, Jr., Exec. Asst. Atty. Gen., amicus curiae.

Syllabus Opinion by the Court

PANNELL, Judge.

1. While in Bowers v. Fulton County, 221 Ga. 731, 738, 146 S.E.2d 884, 890, it is said: 'The constitutional provision (Art. I, Sec. III, Par. I of the Georgia Constitution; Code Ann. § 2-301) is susceptible to no construction except the condemnee is entitled to be compensated for all damage to his property and expense caused by the condemnation proceedings,' this ruling has no application to expenses of litigation and attorney's fees. See Dohany v. Rogers, 281 U.S. 362, 368, 50 S.Ct. 299, 302, 74 L.Ed. 904, in which it is held: 'Attorneys' fees and expenses are not embraced within just compensation for land taken by eminent domain.' 30 C.J.S. Eminent Domain § 386, p. 442; 4 Nichols, Eminent Domain, p. 704, § 14.249(4). See also State Hwy. Dept. v. Smith, 219 Ga. 800, 136 S.E.2d 334. Expenses of litigation and attorney's fees in this State can only be recovered when provided by statute. See Adams v. Aycock, 11 Ga.App. 793, 76 S.E. 161. There is no statutory provision for the payment of attorney's fees and expenses of litigation in condemnation cases. Therefore, the trial court did not err in refusing to admit in evidence matters relating to the condemnee's expenses of litigation and attorney's fees paid and to be paid to his attorney.

2. Where a request to charge is made to the court and the request is refused, in all matters on appeal relating to refusal to give such request, the request shall be considered as a whole and not by its separate parts. See Western Union Telegraph Co. v. Owens, 23 Ga.App. 169(5), 98 S.E. 116; Mayor &c. of Savannah v. Centennial Mill Co., 46 Ga.App. 725(1), 169 S.E. 40. Accordingly, an enumeration of error that the refusal to charge a portion of a single request to charge, the enumeration being clearly based on the failure to charge a request and there being no request of record to charge just that portion raises no question to be decided by this court. We cannot consider an enumeration of error on a failure to charge a portion of a single request as there can be no error in this regard except for the failure to charge the entire request. If there had been an enumeration of error that the court failed to charge the particular principle, another question might be presented. To permit this enumeration to be considered would be to permit one to present a request erroneous in part and claim that the trial court erred in failing to give a request to charge the part that was correct. This he cannot do.

3. The trial court did not err, in the absence of a proper request, in failing to define for the jury what is meant by 'unique and special economic value to the owner of the property taken and damaged.' See Western Union Telegraph Co. v. Ford, 10 Ga.App. 606(5), 74 S.E. 70.

4. There was no error in refusing to permit the condemnee to testify or to state that his business was permanently damaged because of the taking of the property upon which it was carried on, as this testimony is a mere conclusion of the witness. See Alabama Power Co. v. Chandler, 217 Ga. 550(1), 123 S.E.2d 767.

5. Complaints as to the court's charges in enumeration of error numbers 6, 7 and 8 will not be considered as the condemnee made no objection to such charges in the lower court as required by law. King v. Adams, 113 Ga.App. 708(1), 149 S.E.2d 548; Sakobie v. State, 115 Ga.App. 460(3), 154 S.E.2d 830.

6. Where a witness for the condemnor, demnor, on direct examination, testified as to his opinion of the value of the property sought to be condemned, and testified that this opinion was derived from his consideration of sales of other properties in the neighborhood, there was no error in permitting the witness to testify in support of his opinion as to the various properties which he considered, describing them fully and stating the sale prices, over the objections that the trial judge had not made a preliminary ruling as to the comparability of the properties described and used by the witness in forming his opinion, to that of the property sought to be condemned. See Lewis v. State Hwy. Dept., 110 Ga.App. 845, 847, 140 S.E.2d 109; State Hwy. Dept. v. Parker, 114 Ga.App. 270, 275, 150 S.E.2d 875. The testimony was not admitted as primary evidence of the fact, but for the jury to judge therefrom the credit to be given the witness's testimony. See Clemones v. Alabama Power Co., 107 Ga.App. 489, 130 S.E.2d 600.

7. The question at issue in the present case was damage to a business, or as contended by the appellant, damages to the earning capacity of a business. While the jury found the business was a sole proprietorship, this does not make the damage to the earning capacity of the business a damage to the earning capacity of the appellant. It follows, therefore, that the mortality tables, which might relate to the life span of the appellant, could not be properly considered by the jury in determining the damage done to the business and there was no error in refusing to admit the same in evidence.

8. Testimony given on the previous trial by an appraiser employed by the condemnor to make an appraisal of the value of the property, that he was employed by one of the condemnors to make such appraisal is not admissible in evidence where such testimony is sought to be used by the condemnee in the subsequent trial of the case. Logan v. Chatham County, 113 Ga.App. 491(2), 148 S.E.2d 471. Where, as in the present case, the appellant sought to introduce in evidence as a whole, the entire previous testimony of such a witness, on the grounds the witness was inaccessible, and a portion of this testimony was objectionable for the reasons given above, the trial court should not be reversed for denying admission of same in evidence, nor was the testimony of such appraiser given on the previous trial admissible on the theory that the condemnor, who had used such witness in a prior trial of the case, was legally bound to use such witness, who had given a higher evaluation of the property than the other witnesses used by the condemnor, because the burden of proof was on the condemnor. The condemnor meets this burden as soon as it introduces evidence of value. Georgia Power Co. v. Brooks, 207 Ga. 406, 411, 62 S.E.2d 183.

9. "A request to charge the jury, directed to the trial judge, submitted in writing before the retirement of the jury must be entirely correct and accurate; it must be adjusted to the pleadings, the law, and the evidence in the case; it must not be argumentative; and it must not seek an expression of opinion on the part of the trial judge.' New York Life Ins. Co. v. Thompson, 50 Ga.App. 413(1), 178 S.E. 389; McKinney v. Woodard, 94 Ga.App. 340(1), 94 S.E.2d 620; Childers v. Ackerman Construction Co., 211 Ga. 350(1), 86 S.E.2d 227.' King v. Ellis, 104 Ga.App. 335, 336, 121 S.E.2d 815. Appellant's request to charge number 5 contained a statement therein that the business conducted on the...