Department of Transp. v. English, 50864

• Decision Date: 15 July 1975
• Docket Number: No. 50864,No. 3,50864,3
• Citation: 218 S.E.2d 134,135 Ga.App. 425
• Parties: DEPARTMENT OF TRANSPORTATION v. A. H. ENGLISH, III, et al
• Court: Georgia Court of Appeals

Page 134

218 S.E.2d 134

135 Ga.App. 425

DEPARTMENT OF TRANSPORTATION v. A. H. ENGLISH, III, et al.

No. 50864.

Court of Appeals of Georgia, Division No. 3.

July 15, 1975.

Arthur K. Bolton, Atty. Gen., Marion O. Gordon, Asst. Dist. Atty., Atlanta, Dillard, Dillard & Shearer, George P. Dillard, Decatur, for appellant.

McCurdy & Candler, George H. Carley, Decatur, for appellees.

DEEN, Presiding Judge.

1. In this eminent domain case the appellant condemnor contends that in three instances it was denied a thorough and sifting cross examination of English, the owner of property condemned for the widening of Peachtree Street. As to ground 4, the complaint is that the witness was not allowed to be questioned about why the contiguous property (separate parcels owned by the defendant and three neighbors) was surveyed as one tract. The witness answered, that it was necessary to go to a beginning point some distance above his property, and that he had only his property surveyed. Thus, this question was answered. Grounds 6 and 7 referred to a residence some distance away on Peachtree Road which the defendant testified he had purchased around 1960 and sold within the decade for $16,000. Objections were directed to questions regarding original purchase price and comparable lot size. In sustaining objections the court ruled that the properties were not comparable.

We find no error. 'The right of cross examination is not abridged where cross examination of a witness as to irrelevant matters is not permitted.' Ga. Power Co. v. Robertson, 97 Ga.App. 142, 143, 102 S.E.2d 510, 512. 'The trial court has a discretion to control the right of cross-examination within reasonable grounds, and the exercise of this discretion will not be controlled unless abused.' Gordy v. Powell, 95 Ga.App. 822(3), 99 S.E.2d 313. It has been said that great latitude is allowed for the purpose of showing bias or interest where the purpose is to impeach the witness. Ga. Power Co. v. Gillespie, 48 Ga.App. 688(7), 173 S.E. 755. This witness was the defendant; his interest is unconcealed. Impeachment by means of false or contradictory statements does not reasonably seem to have been involved. The questions were at best marginal and innocuous, and no reversible error appears from these rulings.

2. Where the buildings in question had been razed prior to trial (their value being one of the issues for jury consideration), it was not error to admit photographs of the interiors, although they included inventory and other personal property not taken by the condemnor, the court cautioning the jury that these items were not to be considered by them, but only whatever light the snapshots might throw on the value of the property taken. Where the admissibility of evidence is doubtful, it is usually proper to admit it with qualifying instructions. Atlas Auto Finance Co. v. Atkins, 79 Ga.App. 91, 53 S.E.2d 171; Patton v. Smith, 119 Ga.App. 664, 168 S.E.2d 627. The usual procedure is to instruct the jury of the purpose for admitting it, and that they should restrict their consideration to that purpose only. Pines v. State, 15 Ga.App. 348(2-b), 83 S.E. 198; Alston v. Smith, 192 Ga. 42(2), 14 S.E.2d 483. The jury had a right to consider the interior as well as the exterior of the demolished buildings in determining their value. Other photographs were properly admitted with instructions that the value of adjacent buildings not condemned was not in issue.

3. A witness for the defendant, stating his qualifications as an appraiser, named previous clients, including the Highway Department, at which point appellant moved for a mistrial. The court denied the motion but admonished the witness and instructed the jury to disregard that part of his testimony. Where the court instructs the jury to disregard a voluntary statement by a witness, even though it may be objectionable and prejudicial, and cautions the witness to confine his answers directly to the questions asked, the denial of a motion for mistrial is usually proper. See Grier v. State, 212 Ga. 248(2), 91 S.E.2d 749 and cit. The only exception to the rule is where the objectionable evidence is so prejudicial that lesser measures will not avail. This testimony does not fall in that class. Nor is the point adversely controlled by Logan v. Chatham County, 113 Ga.App. 491, 493, 148 S.E.2d 471, where the appraiser had worked for the opposite party in the same case, and the ruling was merely that if this evidence were admitted over objection it would be error. The evidence here was excluded, as Logan indicates should be done.

4. 'In arriving at the value . . . of a particular abutting lot and building thereon, evidence as to what the value of the lot would have been without the building, and evidence of the value of other abutting lots, was relevant.' Hurt v. City of Atlanta, 100 Ga. 274(4), 28 S.E. 65. It was not error to allow an appraiser, after stating his opinion of the value of the property taken, to distinguish the amounts allocated by him to land, building, easement, and other components.

5. 'Evidence which ought properly to have been offered in chief, but which was then omitted through inadvertence, if offered with the rebutting evidence should be admitted if otherwise unobjectionable.' Dennis v. Weekes, 46 Ga. 514(3).

6. Where on cross examination an appraiser was asked how he arrived at valuation and he replied, 'replacement costs plus land value,' a motion to strike the testimony was premature. The answer was responsive to the question and does not establish that depreciation was not included. If the plaintiff wished to know whether depreciation was considered in arriving at the replacement cost stated, he should have questioned the...