City of Jefferson v. Maddox, 42499
| Decision Date | 30 May 1967 |
| Docket Number | No. 42499,No. 3,42499,3 |
| Citation | 116 Ga.App. 51,156 S.E.2d 553 |
| Parties | CITY OF JEFFERSON v. Y. D. MADDOX, Sr |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. A charge referring to 'fair market value * * * for consequential damages' was reversible error since it was subject
to an interpretation allowing an excessive recovery for consequential damages.
2. A question not likely to recur on another trial will not be passed upon.
3. An excerpt from the charge was not calculated to mislead the jury into awarding consequential damages in connection with the property taken in addition to consequential damages for property not taken.
4. An enumeration of error complaining of the admission of certain evidence is without merit where counsel's objection dis not raise the point he seeks to urge before this court.
5. Where the witness never answered a proffered question the overruling of counsel's objection to the question was, if error, harmless.
6. A value finding in a condemnation case will not be set aside as excessive where it is within the range of the evidence.
The City of Jefferson sought to condemn a certain portion of the lands of Y. D. Maddox, Sr., as well as a right of way easement over his lands, for the purpose of constructing and operating an oxidation pond on the described lands and laying and maintaining a sewerage disposal line on the easement. The return of the appraisers awarding the condemnee $3,550 was appealed to the Jackson Superior Court. The issue was tried before a jury who returned a verdict for the condemnee, awarding $5,505 damages for the land taken and $1,000 consequential damages. The condemnor filed a motion for new trial on the usual general grounds and later amended by specifying as error the admission of certain evidence and 3 excerpts from the charge. Upon the trial judge's overruling the motion for new trial, the condemnor appeals and enumerates as error the grounds of the motion for new trial.
Davis & Davidson, Jack S. Davidson, Jefferson, for appellant.
Hudson & Stula, Jim Hudson, Athens, for appellee.
1. The following charge is enumerated as error: 'Second, the fair market value is to be paid by the condemnor to the condemnee, the owner, for consequential damages, if any, if you find there be such damages to the residue or the remainder of the land of the condemnee not taken by the condemnor for the purpose stated, from which the land actually taken by the condemnor was a part before it was taken as alleged in the petition.' The charge in effect directed the jury to award fair market value for consequential damages.
It should be pointed out that later on in the charge the jury was instructed as to the means of ascertaining consequential damages that is, the difference between market value before and after taking. However, at no time did the trial judge call attention to the previous charge or correct it. The rule is: 'An erroneous and injurious instruction is not cured by a correct statement of the law in another part of the charge to the jury, wherein the incorrect charge is not expressly withdrawn from their consideration and their attention directed thereto.' Citizens & Southern Nat. Bank v. Kontz, 185 Ga. 131(2), 194 S.E. 536. In our view the charge is subject to the criticism proffered. Clearly the condemnor is not required to pay the fair market value for consequential damages. Fair market value indicates the value of the land. The correct rule is 'the measure of consequential damages, if any, for the part of the lot not taken, where there are either or both benefits and damages involved, is the difference between the greatest 'market value' of the land not taken before the strip is taken off and the improvements (benefits) made, less the 'market value' of the remainder of the land after the strip of land is taken off and improvements made.' State Highway Board v. Bridges, 60 Ga.App. 240, 241(2), 3 S.Ed.2d 907, 909. State Highway Bd. of Georgia v. Coleman, 78 Ga.App. 54, 57(3), 50 S.E.2d 262; Georgia Power Co. v. Pittman, 92 Ga.App. 673, 89 S.E.2d 577; State Hwy. Dept. v. Thompson, 112 Ga.App. 488, 145 S.E.2d 784; Elliott v. Fulton County, 220 Ga. 377, 139 S.E.2d 312. By referring to 'fair market value * * * for consequential damages' the charge weas confusing, misleading and subject to the interpretation of allowing excessive recovery for consequential damages. Hence, it was reversible error.
2. The condemnor complains of the following charge: 'I charge you that in estimating the value of land taken for the easement right of way across the land, when taken for public uses, you are not restricted to its agricultural or productive qualities but inquiry may be made as to all other ligitimate purposes to which the property could be appropriated or used if you so find from the evidence.' (See Code § 36-505). It is urged that there is no evidence that the land was suitable for any other purpose. Hence, the charge was not adjusted to the evidence and was error.
A perusal of the record discloses some evidence that tended to prove the condemned property could be used for purposes other than agricultural purposes, but this evidence is confused and so indefinite that its quality as reasonably certain proof is doubtful. Since this case must be reversed on another ground and it is not probable that the trial judge will give the same or similar instructions on another trial unless the evidence is more definite and certain, it is not necessary to pass upon this enumeration of error.
3. The trial judge instructed the jury: Condemnor contends this charge was error since it would allow recovery both for damages to the property taken and for fair market value of the property.
An almost identical charge was subjected to the same criticism in State Highway Dept. v. Robinson, 107 Ga.App. 854(1), 131 S.E.2d 786. There the court held: 'The trial court properly charged the jury as to the two elements of damages involved in this case, that is, actual damages for the property taken and consequential damages to the remainder of the condemnee's property, (McArthur v. State...
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Willis v. Hill, 42881
...known and we reverse for reasons set forth in Divisions 5 and 6, these enumerations of error are not considered. City of Jefferson v. Maddox, 116 Ga.App. 51(2), 156 S.E.2d 553. 9. The treatment in defendants' brief with respect to Enumerations of error 151 through 153 is nothing more than a......
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Jones v. Cloud
...14, 15 and 16, complaining that there was no evidence to authorize the giving of various charges on damages. City of Jefferson v. Maddox, 116 Ga.App. 51(2), 156 S.E.2d 553. Judgments BELL, P.J., and DEEN, J., concur. 1 The same rule applies as to a charge on reducing or mitigating the damag......
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Gusky v. Candler General Hosp., Inc., A89A0291
...is unlikely to recur on another trial of the case, this enumeration of error is moot and need not be decided. City of Jefferson v. Maddox, 116 Ga.App. 51(2), 156 S.E.2d 553; Georgia Power Co. v. McElmurray, 113 Ga.App. 789, 795(5), 149 S.E.2d 3. Plaintiff's second enumeration of error conte......
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Myers v. Boleman, 57846
...and cases cited. If there be any evidence to sustain the verdict of the jury, this court will not disturb it. City of Jefferson v. Maddox, 116 Ga.App. 51, 55(6), 156 S.E.2d 553; Worn v. Sea-Cold Services, 135 Ga.App. 256(2), 217 S.E.2d 452, supra. As the causation factors here were in contr......