Garner v. Gwinnett County
| Decision Date | 06 April 1962 |
| Docket Number | No. 39238,No. 1,39238,1 |
| Citation | 105 Ga.App. 714,125 S.E.2d 563 |
| Parties | H. B. GARNER v. GWINNETT COUNTY |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. A witness giving his opinion upon the value of property may properly testify, though his evidence rests on hearsay, Hearsay, while generally not admissible as evidence, may be primary evidence of value.
2. There being evidence in the record from which the jury could determine whether consequential benefits accrued to the property, the court properly instructed the jury that it should take and deduct from consequential damages any such consequential benefits.
3. The condemnor's witness here gave evidence sufficient to warrant the court charging the jury as to consequential damages to the property.
4. In the absence of a timely request, the trial judge does not have the duty to instruct the jury that in reaching its verdict no juror shall act upon his or her own private knowledge or information respecting the case.
5. The jury is not bound to accept the opinion of witnesses as to the value of real property but may base their verdict on all the facts and circumstances properly before them. The verdict was supported by the evidence, and the court properly denied the motion for a new trial on the general grounds.
Plaintiff condemnor instituted condemnation proceedings against the defendant. A special master was appointed under the Act of the General Assembly of 1957 (Ga.Code Ann. Ch. 36-6A). From the award of the special master the defendant appealed to the Superior Court. Upon the trial of the appeal, the jury returned a verdict in the amount of $500. The defendant condemnee, moved for a new trial, to which were added by amendment five special grounds, which are discussed in the opinion. The motion for new trial was denied on all grounds, to which defendant excepted.
Merritt & Pruitt, Glyndon C. Pruitt, Buford, for plaintiff in error.
Dudley S. Hancock, Norcross, for defendant in error.
1. Special ground 4 assigns as error the admission over objections of the testimony of the special master, a witness for the condemnor, to the effect that he arrived at the basis for his valuation of the property by talking to a number of real estate men who were dealing in real estate in the neighborhood involved, and inquiring as to what price property there was selling. Special ground 5 similarly objects to the allowance of testimony of this witness as to his talking with the family of the condemnee and other people, and in testifying, '* * * I was advised that $250 an acre was sufficient, well worth it * * *.' The condemnee's objection to the testimony was that it was hearsay.
Upon appeal to the superior court, the award of the special master is not competent evidence, and the appeal is a de novo investigation. Code § 36-612a. While we find nothing in the statute barring a special master from testifying, obviously the admission of his testimony must be governed by the applicable rules of evidence.
A lay witness may testify as to value, and one need not be an expert or dealer in the article, but may give his opinion as to value if he has had an opportunity of forming a correct one. Code § 38-1709. 'Hearsay is generally not admissible as evidence. When it is inadmissible it has no probative value. But, in exception to the general rule, hearsay may be primary evidence of value. 'It is no objection to the evidence of a witness testifying as to market value that such evidence rests on hearsay.'' Landrum v. Swann, 8 Ga.App. 209, 68 S.E. 862; Harper Warehouse, Inc. v. Henry Chanin Corp., 102 Ga.App. 489, 492, 116 S.E.2d 641. See generally 159 A.L.R. 7 et seq.
The trial judge did not err in admitting the testimony objected to in special grounds 4 and 5.
Special ground 5 further urges that the court's statement that 'I think he eventually gave you his opinion on it,' [the value of the land taken and damaged] was an expression of opinion on the evidence. By these words the trial court was merely giving expression to the fact that the witness had given an opinion on the subject. This comment is not interpretable as an expression by the court of an opinion as to what was proven by the evidence.
The trial judge properly overruled the motion for new trial upon special grounds 4 and 5.
2. Special ground 6 contends the trial court erred in charging the jury it should take and deduct from consequential damages any consequential benefits to be derived from the alleged improvements made, since there is no evidence in the record from which the jury could determine the value of any consequential benefits.
Where there is no evidence in the record to show the value of the consequential benefits, it is error to instruct the jury on the subject. State Highway Dept. of Georgia v. Andras, 212 Ga. 737, 739, 95 S.E.2d 781, s. c., 93 Ga.App. 827, 93 S.E.2d 174. However, in this case, the condemnor's witness testified that he found benefits to the property in the amount of $200. This constituted some evidence as to the value of the consequential benefits to the remaining property.
The trial judge properly denied the motion for new trial on special ground 6.
3. Special ground 7 contends the trial judge erred in charging the jury as to the measure of consequential damages on the ground that the condemnor presented no evidence as to market value of the remainder of the condemnee's property before the taking or after the taking. The burden of proof is upon the condemnor to prove the value of the premises or the injury to it resulting from the taking. Georgia Power Co. v. Brooks, 270 Ga. 406(4), 410, 62 S.E.2d 183; and Georgia Power Co. v. Smith, 94 Ga.App. 166, 94 S.E.2d 48.
The record reveals that the condemnor's witness testified that he found the value of the property to be $250, that he found...
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