City Of Winder v. Wood, (No. 17514.)
| Decision Date | 26 February 1927 |
| Docket Number | (No. 17514.) |
| Citation | 137 S.E. 107,36 Ga.App. 492 |
| Parties | CITY OF WINDER. v. WOOD. |
| Court | Georgia Court of Appeals |
(Syllabus by the Court.)
Error from Superior Court, Barrow County; W. W. Stark, Judge.
Action by Mrs. A. C. Wood against the City of Winder. Judgment for plaintiff. Defendant's motion for new trial was overruled, and defendant brings error. Reversed.
Joseph D. Quillian, of Winder, for plaintiff in error.
G. D. Ross and Richard B. Russell, Jr., both of Winder, for defendant in error.
BELL, J. Mrs. Annie C. Wood brought an action against the city of Winder to recover damages alleged to have been sustained by her by reason of a change in the grade of the street adjacent to her residence. The city, after changing the grade of this street, paved it; the grade was raised in fact in connection with the paving project. The city's answer to the suit was a general denial. The jury found a verdict in favor of the plaintiff for $800, and the defendant has excepted to the overruling of its motion for a new trial.
1. The first special ground of the motion for a new trial complains that the court erred in admitting the following testimony of Dr. Ross, a witness for the plaintiff: "I refused it [referring to the property in question] at $1,500 reduction"—this testimony having been duly objected to upon the ground that it was irrelevant and immaterial in the solution of the question at issue. Testimony that a person refused to purchase property at a given price would ordinarily have no probative value on the question of the worth of the property; but in the present case the witness himself was testifying as to what, in his judgment, was the reduction of the market value of the property as a result of thechange in the grade of the street, and it is clear from the record that the part of his testimony above quoted was intended to express his present opinion as to the amount of such reduction, and that it was so understood by the jury. The witness had been interrogated as to what it would cost to raise the surface of the plaintiffs lot by filling in. The witness testified that several years previously he sold the property to Mrs. Wood at the price of $4,000, the fair market value of the property at that time. His testimony as objected to appears in the following connection in the brief of evidence:
"I am not familiar with what it would take to elevate that house, to put in the grading to bring it up to the level as it was before the repair about the porch. My estimate in refusing to buyâ€
Almost immediately thereafter the witness further testified:
"I would want more than $1,500 difference between the value of the property now and in 1923, with the pavement in front of the property."
It thus appears from the context that the witness was of the opinion that the defendant actually had reduced the market value of the property $1,500, and that the testimony objected to amounted to no more than a statement that he was of the same opinion at the time of some previous negotiation between him and the plaintiff with reference to a purchase of the property. The court did not err in admitting the testmony. But, even assuming error, we could hardly say that it' was harmful, in view of all the facts appearing. There is no cause for a new trial in the ground of the motion here dealt with.
2. The second ground of the amendment to the motion for new trial assigns as error the admission of the following testimony of Edgar Jackson, a witness for the plaintiff:
The objection urged to this testimony was that it was irrelevant and immaterial, because the other evidence showed that no part of the plaintiff's lot except the front yard had ever been as high as the sidewalk, and because it was incompetent to show the cost of raising the level of the entire lot to the new level of the street, when the rear of the lot had not so conformed to the grade of the street before it was changed. There is no merit in this ground of the motion for new trial. In City Council of August v. Schrameck, 96 Ga. 426(1), 23 S. E. 400, 51 Am. St. Rep. 146, the Supreme Court held:
"The measure of damages to abutting property, caused by raising the grade of a street, is the difference between the market value of the property before and after the improvement; and upon the trial of an action for the recovery of such damages, it is competent to give in evidence the necessity of filling in the lot and raising the buildings thereon, with the probable cost of such work, not as furnishing a reason for the allowance of such cost as an independent item of special damage, but as a circumstance throwing light upon the general question of the diminution of market value."
To the same effect, see Mayor, etc., of Macon V. Daley, 2 Ga. App. 355(4), 58 S. E. 540, and cases cited.
The testimony showed with reasonable certainty the degree of the incline of the plaintiff's lot from the front to its opposite boundary, and the topographical relation of the entire lot to the old grade of the street. Notwithstanding the testimony related to the expense of causing the lot to occupy a different relation to the new grade of the street from that which it had occupied toward the level of the street originally, it was not without some relevancy as affording a basis of computation by which the jury could determine the cost of the filling in the lot to the extent of raising the surface of all its parts to the same relation which had existed between such surfaces and the original street level; this cost to be considered as a fact or circumstance...
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