Fulton County v. Dangerfield
| Decision Date | 28 November 1990 |
| Docket Number | No. S90G0958,S90G0958 |
| Citation | 398 S.E.2d 14,260 Ga. 665 |
| Parties | FULTON COUNTY v. DANGERFIELD, et al. |
| Court | Georgia Supreme Court |
Robert G. Young, Atlanta, for Fulton County.
J. Corbett Peek, Jr., James Garland Peek, Peek & Whaley, Abraham A. Sharony, Atlanta, for Dangerfield.
This appeal concerns a condemnation of land for the College Park MARTA station. In Fulton County's appeal from the judgment entered on the jury award to the Dangerfields (owners) and White (lessee), the Court of Appeals affirmed the trial court's judgment. Fulton County v. Dangerfield, 195 Ga.App. 208, 393 S.E.2d 285 (1990). This court granted certiorari to consider two questions: 1) whether it was error to permit an attorney witness for the condemnee to testify concerning the reason for the City of College Park's denial of an application for a permit to erect an advertising sign on the premises; 2) whether Buck's Service Station, Inc. v. D.O.T., 259 Ga. 825, 387 S.E.2d 877 (1990), was correctly construed and applied.
1. One of the issues at trial was whether the condemned property had extra value as a site for an advertising sign even though the City of College Park had previously denied a zoning variance application by the Dangerfields for a permit to erect such a sign. In support of their position that the property had such value, the Dangerfields asserted that the application was denied only because MARTA was in the process of condemning property in the path of the proposed right-of-way. The trial court permitted an attorney who had represented the Dangerfields in the application process to testify as an expert concerning the reasons for the denial of the application. The Court of Appeals found no error. We disagree, finding the admission of the testimony concerning the subjective intent of the city council in refusing to grant a permit for a sign which violated zoning requirements to be inadmissible for several reasons.
(a) The characterization of the testimony of the attorney-witness as "expert" is unwarranted by the record. Regardless of the witness's qualification as an expert, the testimony given was not an expert opinion, but a recitation of what was said by various persons at the meeting at which the permit was denied. We would not allow a physician to give an expert opinion that a person's leg was broken if that "opinion" was based solely on the witness hearing the treating physician state upon examining the leg that it was broken. The "opinion" of the attorney-witness in this case rests on the same foundation. "It is not competent for a witness to testify directly as to another's intention." Durrence v. Northern Nat. Bank, 117 Ga. 385, 389, 43 S.E. 726 (1903). The testimony should have been excluded as hearsay.
(b) Although Jackson v. Delk, 257 Ga. 541, 361 S.E.2d 370 (1987), which held inadmissible the testimony of a legislator concerning the reasons underlying a legislative enactment, did not expressly forbid the testimony at issue here, the underlying rationale of Jackson and the authority on which it relied requires the exclusion of the testimony. In Stewart v. Atlanta Beef Co., 93 Ga. 12(2), 18 S.E. 981 (1893), this court explained why the testimony of legislators should not be taken in order to explain the reasons for legislation:
While the opinion of a member of the legislature which passed an act, or that of the comptroller-general, as to its meaning and purpose, might possibly often be valuable and instructive in construing the act and arriving at the legislative intent, it cannot be seriously contended that courts can properly resort to sources of this kind in ascertaining the legislative will as expressed in a statute. These...
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