DeKalb County v. Queen

• Decision Date: 19 June 1975
• Docket Number: No. 1,No. 50417,50417,1
• Citation: 135 Ga.App. 307,217 S.E.2d 624
• Parties: DeKALB COUNTY v. Ola Mae QUEEN et al
• Court: Georgia Court of Appeals

Page 624

217 S.E.2d 624

135 Ga.App. 307

DeKALB COUNTY v. Ola Mae QUEEN et al.

No. 50417.

Court of Appeals of Georgia, Division No. 1.

June 19, 1975.

Rehearing Denied July 2, 1975.

George P. Dillard, Decatur, for appellant.

Davis & Stringer, Robert H. Stringer, Decatur, for appellees.

MARSHALL, Judge.

This appeal assigns multifarious errors in the trial of a condemnation of certain rental property belonging to the condemnee. DeKalb County, the condemnor, sought to condemn the entire lot and house thereon of the condemnee for the purpose of constructing a roadway. The assessors had previously awarded $35,500.00 to condemnee and on appeal to the Superior Court of DeKalb County, the jury awarded condemnee.$46,500.00. The condemnor moved for a new trial on the general grounds and on nine special grounds. Its appeal is from the denial of the motion for new trial and each of the specified grounds therein.

1. The general ground for condemnee's motion for new trial is that the evidence was insufficient to support the jury's verdict and award, since the only two experts to testify valued the property at $32,000.00 and $42,000.00, respectively. The transcript shows that another witness, the condemnee's son, testified that he 'would give $50,000.00 for (the property).' This testimony was admissible as nonexpert opinion evidence as to value, provided the witness had an opportunity to form a correct opinion as to value. Code § 38-1709; Gainesville Stone Co. v. Parker, 224 Ga. 819(4), 165 S.E.2d 296; Schoolcraft v. DeKalb County, 126 Ga.App. 101(2), 189 S.E.2d 915; Noble v. State Hwy. Dept., 117 Ga.App. 33(2), 159 S.E.2d 715; Selman v. Manis, 100 Ga.App. 423(3), 111 S.E.2d 747; Levsey v. County of Walton, 47 Ga.App. 211, 212, 170 S.E. 268; Cf. Williams v. Colonial Pipeline Co., 110 Ga.App. 824, 140 S.E.2d 150. Here the witness testified that he had been a building contractor, was familiar with houses and the value of property, and was particularly familiar with the house and property in question. This testimony shows adequate opportunity to form his opinion as to the value of the property and the opinion is sufficient to support the verdict. His relationship to the condemnee and the sufficiency of his observation of the property affect only the weight to be given his opinion by the jury.

2. Special ground 4 complains of the admission of testimony that the value of property abutting the new roadway would be enhanced by the taking. The transcript of this testimony clearly shows that the question and answer pertain not to the enhancement of value of abutting property after he roadway was built but to enhancement caused by news of a coming roadway. As such, this testimony was admissible. Gate City Terminal Co. v. Thrower, 136 Ga. 456(3), 71 S.E. 903; Housing Authority of the City of Marietta v. York, 106 Ga.App. 41(1), 126 S.E.2d 246.

3. Special ground 5 is that the condemnee's expert witness was erroneously permitted to testify that he had done appraisal work for the county and the State Highway Department. This testimony came in as part of his qualifications as an expert, which, even though stipulated by counsel for the condemnor, were nevertheless admissible. There is no merit to the contention that this testimony was prejudicial to the condemnor.

4. Special ground 6 complains that the condemnor's right to a thorough and sifting cross examination was unduly restricted when a witness was not allowed to testify as to the evaluation of the property for tax purposes. The value of property, as assessed by a taxing authority, is inadmissible as hearsay, Seargraves v. Seagraves, in 193 Ga. 280, 18 S.E.2d 460; Gruber v. Fulton Co., 111 Ga.App. 71(1, 2), 140 S.E.2d 552, unless the evaluation on the tax return was shown to be made by the taxpayer himself, State Hwy. Dept. v. Wilkes, 106 Ga.App. 634(4), 127 S.E.2d 715, or unless used for the purposes of impeachment, State Hwy. Dept. v. Raines, 129 Ga.App. 123(3), 199 S.E.2d 96; Housing Authority of Atlanta v. Republic Land & Investment Co., 127 Ga.App. 84(2), 192 S.E.2d 530. There being no showing of an impeachment purpose and no showing that the evaluation was made by the taxpayer himself, this testimony was properly excluded.

5. Special ground 7 contends that it was error for the trial court to exclude from evidence the award of the assessors of $35,500.00 for the purpose of impeaching a witness who had signed the assessor's award and who testified for the condemnee that the value of the property was $42,000.00. 'The law is that the award of assessors is not proper evidence for consideration of a jury on an appeal in a condemnation case. Atlanta, B. & A.R. Co. v. Smith, 132 Ga. 725, 727, 64 S.E. 1073; 18 Am.Jur. 1001, § 355; 1018, § 375.

'An appeal from an award of assessors is a trial de novo on the question of compensation, and it is the function and duty of the jury to pass upon the issues independently of the award of the assessors. H.G. Hastings Co. v. Southern Natural Gas Corp., 45 Ga.App. 774, 776, 166 S.E. 56.' Chandler v. Alabama Power Co., 104 Ga.App. 521, 537, 122 S.E.2d 317, 329.

Nevertheless, the award of the assessors may be admitted for the limited purpose of impeachment. It was held in the case of Ga. Power Co. v. Hudson, 46 Ga.App. 206(3), 167 S.E. 206 that: 'The court did not err, as contended, in admitting in evidence the return under oath of the appraisers fixing the value of $25 per acre upon the land sought to be condemned, the same being offered in evidence for the purpose of impeaching the testimony of one of the appraisers, given upon the trial of the case, to the effect that the value of the land was only $10 per acre. This witness was allowed to give his explanation as to such alleged inconsistency; and whether or not the signing of such a report under oath should affect his testimony in the minds of the jury was peculiarly a matter for the...