Department of Transp. v. Driggers, 57424

• Decision Date: 13 June 1979
• Docket Number: No. 57424,57424
• Citation: 150 Ga.App. 270,257 S.E.2d 294
• Parties: DEPARTMENT OF TRANSPORTATION v. DRIGGERS et al.
• Court: Georgia Court of Appeals

Page 294

257 S.E.2d 294

150 Ga.App. 270

DEPARTMENT OF TRANSPORTATION v. DRIGGERS et al.

No. 57424.

Court of Appeals of Georgia.

Argued March 12, 1979.

Decided May 8, 1979.

Rehearing Denied June 13, 1979.

Spivey & Carlton, Robert S. Reeves, Swainsboro, for appellant.

Ogden Doremus, Metter, for appellees.

QUILLIAN, Presiding Judge.

This was a condemnation proceeding against 18.969 acres of land belonging to Mr. Johnnie T. Driggers, for the right of way for Interstate Highway 16 (I-16). The Department of Transportation determined that $18,535 was "just compensation for said parcel, and any consequential damages," and paid that amount into court. The condemnor and condemnee each presented the testimony of two expert witnesses. The range of damages was from $18,100 to $28,528.75. A combination of the highest estimates for each category of property taken, and consequential damages, amounted to $30,253.75. The jury returned a verdict for the condemnee for $34,587. The condemnor appeals. Held:

Testimony as to value of property is opinion evidence. Code Ann. § 38-1709 (Code § 38-1709). Opinion testimony does not establish any fact, as a matter of law, therefore a juror should not be bound by opinion testimony of witnesses as to value, even though it is uncontradicted. 5 Nichols on Eminent Domain (3d Ed.) 18-233, 18-237, § 18.46. Probative value of opinion testimony is entirely for the judgment and decision of the trier of fact (Anderson v. Anderson, 27 Ga.App. 513(4), 108 S.E. 907) and the jurors are not required to accept as correct, even the uncontradicted opinions of expert witnesses as to value (Hayes v. Carter, 91 Ga.App. 540, 541, 86 S.E.2d 532; Hoard v. Wiley, 113 Ga.App. 328, 334, 147 S.E.2d 782), " 'but may consider the nature of the property involved and any other facts or circumstances within their knowledge in arriving at a verdict, Provided there are in evidence sufficient facts from which they may draw a legitimate conclusion.' Grant v. Dannals, 87 Ga.App. 389, 391, 74 S.E.2d 119, 121." Ga. Power Co. v. Harwell, 113 Ga.App. 653, 654, 149 S.E.2d 376, 377 (Emphasis supplied.) Accord, Shoemaker v. United States, 147 U.S. 282, 283, 306, 13 S.Ct. 361, 37 L.Ed. 170; 5 Nichols on Eminent Domain (3d Ed.) 18-233, § 18.46, supra. Also, in Hogan v. Olivera, 141 Ga.App. 399, 402, 233 S.E.2d 428, a whole court case, we held that the "(j) urors are not absolutely bound to accept as correct the opinions of witnesses as to value of property, Though uncontradicted by other testimony, but have the right to consider the nature of the property involved, together with any other facts or circumstances properly within the knowledge of the jury which throws light upon the question, and by their verdict, May fix either a lower or higher value upon the property than that stated in the opinions and estimates of the witnesses." Id. at 402-403, 233 S.E.2d at 431. Thus, where expert testimony as to value is submitted, jurors "even if such testimony be uncontradicted, may exercise their independent judgment; and there is no rule of law which requires them to surrender their judgment, or give a controlling influence to the opinions of scientific witnesses." The Conqueror, 166 U.S. 110, 111, 17 S.Ct. 510, 41 L.Ed. 937.

Our Supreme Court held that "(a) jury must arrive at their verdict from evidence regularly produced in the course of the trial proceedings and may properly call to their aid their own knowledge, learning and experience, and any information gained from a view of the premises in weighing the evidence, but their verdict must be supported by evidence and cannot rest solely upon a view of the premises or their knowledge of the value of land . . ." State Hwy. Dept. v. Andrus, 212 Ga. 737, 739, 95 S.E.2d 781, 783.

In the same manner, the measure of consequential damages is also a matter of opinion (Ga. Power Co. v. Manley, 47 Ga.App. 431, 433, 170 S.E. 543), and the jury is not compelled to accept the opinion of the expert regarding diminution of value of property. Hogan v. Olivera, 141 Ga.App. 399, 402, 233 S.E.2d 428, supra. In the instant case, the fence marking the I-16 right of way was 55 feet from the condemnee's house. It strains credulity beyond the breaking point to accept the opinions of the state's expert witnesses who testified that locating an interstate highway 55 feet from a person's residence would not result in any diminution of value of that person's home. In State Hwy. Dept. v. Davis, 129 Ga.App. 142(1), 199 S.E.2d 275 (cert. den.), we found no error in a charge dealing with "possible diminution in value of the dwelling because of its proximity to the interchange and the new interstate highway" because of the "heavy traffic and (the) resulting noise . . . "

In the instant case, as in Hogan v. Olivera, supra, there were additional facts upon which the jurors could base their opinion. There was the testimony of four expert witnesses but their verdict must be supported by evidence. Included within their testimony was the procedure and basis by which they arrived at their opinion including comparable sales of similar property. Evidence of comparable sales was introduced which showed values of $800, $900, $940, $1,000 and $1,200 per acre. Such evidence may be considered in establishing value of the property being condemned. Smaha v. State Hwy. Dept., 114 Ga.App. 60(2), 150 S.E.2d 327. The highest value placed upon the condemnee's land was $750 per acre. There was evidence of the specific amount of timber for sawing and pulpwood. The state's expert witness stated that the soil was grade 2 grade 1 being the highest and best of 7 different grades. There was evidence submitted by an aerial photograph, engineer plat, and photographs of the house, surrounding fence, pasture fences, outbuildings, storage sheds, tobacco barn, wooded land and cultivated land. As the jury was authorized to visit the premises (Southern v. Cobb County, 78 Ga.App. 58, 59, 50 S.E.2d 226, 5 Nichols on Eminent Domain (3d Ed.) 18-63, 18-76 §§ 18.3, 18.31(1)), this was tantamount to visiting the premises. This type of evidence, together with the testimony of the expert witness, is a sufficient basis for jury determination of market value of the property in question. Smaha v. State Hwy. Dept., 114 Ga.App. 60(1), 150 S.E.2d 327, supra; Hogan v. Olivera, 141 Ga.App. 399, 404, 233 S.E.2d 428, supra; State Hwy. Dept. v. Andrus, 212 Ga. 737, 739, 95 S.E.2d 781, supra.

This court has held that "(s)ince the jury had before it the relevant and pertinent facts upon which an estimate of value must be made, and since it is not absolutely bound to accept as correct the opinions or estimates of the witnesses (cit.), but may arrive at a different figure, Even though such figure is somewhat higher or lower than that to which any witness has testified (cit.), provided it is within the range of all the evidence from which value may be determined it follows that the fact that the figure set by the jury as the value of the land taken was . . . Below the lowest estimate given by any expert witness is not cause for reversal. (Emphasis supplied.) Smaha v. State Hwy. Dept., 114 Ga.App. 60(1), 150 S.E.2d 327, supra; accord, Garner v. Gwinnett County, 105 Ga.App. 714, 719, 125 S.E.2d 563. See also McLendon v. City of LaGrange, 47 Ga.App. 690(3), 171 S.E. 307; Southern v. Cobb County, 78 Ga.App. 58(2), 50 S.E.2d 226, supra; Sammons v. Copeland, 85 Ga.App. 318, 321, 69 S.E.2d 617; Baker v. Richmond City Mill Works, 105 Ga. 225, 227, 31 S.E. 426; McCarthy v. Lazarus, 137 Ga. 282(2), 73 S.E. 493; Reserve Life Ins. Co. v. Gay, 214 Ga. 2, 3, 102 S.E.2d 492; Ginn v. Morgan, 225 Ga. 192, 193, 167 S.E.2d 393.

Later, this court added a proviso in Hogan v. Olivera, 141 Ga.App. 399, 402, 233 S.E.2d 428, 431, supra, that the "value fixed by the jury could be higher or lower than that of the opinion, provided the verdict is not palpably unreasonable under all the evidence." See Code Ann. § 105-2015 (Code § 105-2015); 5 Nichols on Eminent Domain 17-4, § 17.1(1).

In Housing Authority etc. of Decatur v. Schroeder, 113 Ga.App. 432(3), 148 S.E.2d 188, we affirmed a jury finding in a condemnation proceeding "which was $1,590 higher than the highest estimate given . . . " Although our judgment was reversed on appeal on another ground (Housing Authority etc. of Decatur v. Schroeder, 222 Ga. 417, 151 S.E.2d 226) we found that the "jury in this case had ample evidence as to the location and condition of the houses, photographs . . . ", as in the instant case, to reach their verdict. Id. Further, in Sun Ins. Co. v. League, 112 Ga.App. 625(1), 145 S.E.2d 768, and Sentry Ins. v. Henderson, 138 Ga.App. 495, 498, 226 S.E.2d 759 we also affirmed judgments in which the jury found the value of damages higher than the highest estimate offered by experts as to the value of automobiles.

A composite of the decisional references would establish the rule that market value is a matter of opinion, and may be established by direct as well as circumstantial evidence, it is peculiarly a matter for the jury, and the jury is not absolutely bound even by uncontradicted testimony of experts, but may consider the...