Hoard v. Wiley

• Decision Date: 17 March 1966
• Docket Number: 3,Nos. 1,No. 41567,2,41567,s. 1
• Citation: 147 S.E.2d 782,113 Ga.App. 328
• Parties: Floyd G. HOARD et al. v. E. D. WILEY
• Court: Georgia Court of Appeals

Page 782

147 S.E.2d 782

113 Ga.App. 328

Floyd G. HOARD et al. v. E. D. WILEY.

No. 41567.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

March 17, 1966.

Syllabus by the Court

1. (a) When an opinion is sought from a witness as to the value of a thing, it is necessary that it be shown that the witness has some knowledge, experience or familiarity with the value of the thing or of similar things. This foundation is essential in order to show the bases or the reasons for the witness' opinion as to the value of the thing.

(b) An owner of property may not testify as to his opinion of the value of the property in a single or gross amount without 'giving his reasons therefor' or else showing that he has had 'an opportunity for forming a correct opinion.'

(c) Division 2 of the case of Warren v. State, 76 Ga.App. 243, 45 S.E.2d 726, is expressly overruled.

2. (a) An opinion as to value based solely on cost price is inadmissible in evidence as it has no probative value.

(b) The cost price of an item, if coupled properly with other evidence such as a showing of the condition of the item both at the time of purchase and at the time its value is in issue, may be admitted as an element upon which an opinion may be formed as to the item's value.

3. (a) The question of the value of property is peculiarly one for the jury. Jurors are not required to accept as correct opinion evidence of value even where there is no other evidence of facts and data upon which the jury might base an independent conclusion.

(b) It is error for a trial judge to direct a verdict where the only evidence as to the value of property is opinion testimony even though the opinion testimony is uncontradicted by any other evidence in the case.

(c) A portion of the case of Elder v. Woodruff Hardware & Mfg. Co., 16 Ga.App. 255, 85 S.E. 268 is expressly disapproved.

4. Under the provisions of Code § 110-401, the trial court did not err in granting plaintiff's motion to strike defendant's answer.

Plaintiff sued in trover to recover the value of malt beverages and wine as follows: '5 cases of Schlitz; 1 case of Colt 45; 3 cases of Miller's High Life; 2 cases of Falstaff; 3 cases of Country Club; 2 cases of Budweiser, 3 cases of wine assorted white and dark port, gypsy rose, scuppernong, red hurricane peach.'

The plaintiff was the only witness testifying.

On direct examination the sole testimony as to the value of the items consisted of the following: 'Q. Are you familiar with the list of beer as contained in paragraph one on your petition there? Check this to refresh your memory. (Handing petition to witness.) A. Yes, Sir. Q. What in your opinion is the value of that beer? A. There was Two Hundred ($200) Dollars or better.'

On cross-examination the testimony was, 'A. Mr. Wiley, what's 5 cases of Carlings Black Label, worth? A. I don't recall. Q. Mr. Wiley, what's the value of 5 cases of Carlings Black Label? A. Regular or King? Q. I don't know. You allege 5 cases of Carlings Black Label in your petition. You tell me the value of that Carlings Black Label. A. Twenty Nine Dollars and Fifty ($29.50) Cents. Q. Well, was that king size? A. Yes, sir. Q. What's the value of that many cases of Black Label regular size? A. I wouldn't have any idea. Q. Don't have any idea? You don't fool with regular? Q. Is that retail or wholesale value you're talking about? Q. Did you pay that much for it? A. Yes, sir. Q. Where did you buy it? Q. Okay. Three cases of Pabst Blue Ribbon? A. Eighteen ($18) Dollars. Q. You allege in here that you had some scuppernong wine. Is that true? A. (no reply). Q. Did you have some Scuppernong wine? A. I had around four different kinds. Q. Four different kinds of wine? A. Yes, sir. Q. Did you have some scuppernong wine? A. Had four different kinds. Q. You have some dark port wine? A. Yes, sir. Q. How much of that did you have? A. Don't know. Q. Don't know? Have some scuppernong wine? A. I'm not positive if I had any scuppernong wine or not. Q. You got it in your petition here as part of that $200 Dollar value, haven't you? A. Yes, sir, I had some. Q. How much did you have of that? A. I don't know exactly how much. Q. You don't know? That's part of the value of this $200 Dollars that you placed on it? A. Yes, sir. Q. And you don't know how much you had? A. I don't know, no sir. Q. All right, Did you have some Red Hurricane Peach? A. Yes, sir. Q. How much of that did you have? A. I declare I don't know. Q. Don't know? Have some white and dark port, too? A. Yes, sir. Q. How much of that did you have? A. I don't know.'

At the conclusion of the testimony the trial judge directed a verdict for the plaintiff in the amount of $200.

The defendant excepts to the judgment of the trial court overruling his motion for new trial on the general and three special grounds.

Floyd G. Hoard, Jefferson, for appellants.

Quillian & Quillian, Alfred A. Quillian, Winder, for appellee.

BELL, Presiding Judge.

This case affords the court an opportunity to bring into a somewhat better focus a phase of the law which has become confusing and hazy through too many illconsidered opinions originating in the appellate courts. The issue concerns the always elusive question of value which, it is safe to say, is present in some manner in a majority of the civil cases litigated.

1. It is to be observed from the factual summation that the plaintiff, as owner of the goods, testified without any explanation that in his opinion the value of the beer 'was $200.00 or better.' Viewing the quoted testimony in its most favorable light and without considering plaintiff's other testimony on cross-examination which gravely detracts from its efficacy, that testimony standing alone would not authorize a verdict in plaintiff's favor for that or any other sum.

When a witness is called to testify as to the value of something, in effect he is asked to estimate or to appraise the worth of the thing. Value means '1. to estimate the worth of; to rate at a certain price; to appraise * * * 2. to place a certain estimate of worth on in a scale of values * * *' Webster's New Twentieth Century Dictionary (2d Ed., c. 1964). Applying the simple meaning of the word it is obvious that it is infrequent indeed when testimony as to value, whether relating to chattels, services, realty, or anything else, amounts to more than an expression of the witness' opinion. Rarely is testimony as to value testimony as to a fact. ' (V)alue in its essence is exclusively a matter of opinion * * *.' Gulf Refining Co. v. Smith, 164 Ga. 811(4), 139 S.E. 716. 'After all, every estimate of value is a mere matter of opinion, and this principle is recognized by the courts.' Reidsville & Southeastern R. Co. v. Baxter, 13 Ga.App. 357, 366(7), 79 S.E 187, 191. This court found no error in a trial judge's charge which stated, 'As to what any piece of property might be worth at a given time is necessarily a question of the witness's opinion * * *.' Ward v. Nance, 102 Ga.App. 201, 203(6), 115 S.E.2d 781, 783.

Thus when an opinion is sought from a witness as to the value of a thing, it is necessary that it be shown that the witness has some knowledge, experience or familiarity with the value of the thing or of similar things. This foundation is essential in order to show the bases or the reasons for the witness' opinion as to the value of the thing. In absence of that showing, the testimony is inadmissible and is utterly insignificant since it represents nothing more than an unsupported conclusion or guess of the witness. ¹ For that reason, even though testimony of that type be admitted without objection and remain in the record, it cannot support a verdict as it has no probative value. 'One need not be an expert or dealer in the article, but may testify as to value, if he has had an opportunity for forming a correct opinion.' Code § 38-1709. 'Where the question under examination * * * shall be one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor.' Code § 38-1708. The plain language of our Code sections (supra) precludes an owner from testifying to the value of his goods in a single or gross amount without 'giving his reasons therefor' or else showing that he has had 'an opportunity for forming a correct opinion.' The Georgia courts have generally so construed the statutes. See Baker v. Goddard, 205 Ga. 477, 482(10), 53 S.E.2d 754; Central Railroad v. Wolff, 74 Ga. 664; Cohn v. Rigsby, 60 Ga.App 728, 730(4), 5 S.E.2d 93; Firemen's Ins. Co. of Newark, N.J. v. Allmond, 105 Ga.App. 763, 766, 125 S.E.2d 545. 'Conclusions of witnesses are of no probative value unless the facts on which the opinions are based sustain the opinions rendered.' Gordy Tire Co. v. Bulman, 98 Ga.App. 563, 564, 106 S.E.2d 332, 333. But this court has sometimes gone astray. For example, division 2 of the case of Warren v. State, 76 Ga.App. 243, 45 S.E.2d 726 is in conflict with the statutes and with decisions of the Supreme Court. Therefore Warren together with all other cases of this court so holding are expressly overruled. The decision in National-Ben Franklin Fire Ins. Co. v. Darby, 48 Ga.App. 394(3), 172 S.E. 74, 819 cited in Warren, is incomplete and not a fully accurate statement of the rule since it did not include either the necessity that the owner show 'his reasons' for his opinion or show he had 'an opportunity for forming a correct opinion.'

For an excellent annotation in depth on the subject see 37 A.L.R.2d 967-1041. However, it should be pointed out that § 9 of the annotation on pp. 987, 988 has misinterpreted the cited Georgia decisions. This is due, apparently, to the annotator's preoccupation with the erroneous holding in Warren which is here overruled.

2. On cross-examination the plaintiff testified that the value of five cases of Carlings Black Label Beer, King size, had a value of $29.50 as he had paid that much for it. Without any explanation, even as to the cost price, he...