Hogan v. Olivera, 52664

• Decision Date: 24 January 1977
• Docket Number: 2,3,No. 52664,Nos. 1,52664,s. 1
• Citation: 233 S.E.2d 428,141 Ga.App. 399
• Parties: J. H. HOGAN v. Yolanda OLIVERA
• Court: Georgia Court of Appeals

Page 428

233 S.E.2d 428

141 Ga.App. 399

J. H. HOGAN v. Yolanda OLIVERA.

No. 52664.

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

Jan. 24, 1977.

Rehearing Denied Feb. 25, 1977.

Hatcher, Meyerson, Oxford & Irvin, Henry M. Hatcher, Jr., Jack A. Wotton, Atlanta, for appellant.

Lawrence C. Chrietzberg, Decatur, for appellee.

McMURRAY, Judge.

This case involves a suit for damages, general and special, resulting from a trespass upon realty by the defendant allegedly collecting and discharging large quantities of surface water upon plaintiff's property.

The evidence showed that defendant developed a subdivision above plaintiff's lot. In order to drain surface water from a part of the subdivision, defendant's contractor cut an extension ditch from the end of a drainage pipe through a natural swale resulting in the discharge of the water onto plaintiff's property. While the contractor testified he cut this extension ditch to the left, there was other evidence that there was no visible indication that a ditch had been dug to the left. There was undisputed evidence that someone dug a ditch straight away from the end of the pipe thereby discharging water below the swale. The water followed the direction of the ditch which was straight down an incline and onto plaintiff's lot. Plaintiff sought special damages and general damages alleging that the improper discharge of water had caused damage to her lot, her home, and some personal property in her basement caused by flooding.

A jury verdict was returned for the plaintiff in the amount of $10,000. The judgment followed the verdict, and defendant moved for a new trial and for judgment notwithstanding the verdict, which was denied. Defendant appeals. Held:

1. In defendant's first two enumerations of error counsel urges that the trial court erred in failing to grant his motions for judgment notwithstanding the verdict or alternatively a motion for new trial. These motions have several bases.

(a) Defendant first argues that the evidence is insufficient to show that he had any personal responsibility for the cutting of the ditch extension that caused the water flow problem in that he was acting in a corporate basis and not as a person. Secondly, he argues that the evidence does not show who caused the ditch to be extended the additional distance that caused the water to discharge upon plaintiff's property. Plaintiff attributes ultimate responsibility back to defendant in his capacity as developer and superintendent of construction. Though these matters were in dispute, there was evidence to support the position advanced by both parties to the trial.

Our responsibility on appeal is not to weigh the evidence and give a de novo opinion on where the greater weight of the evidence lies but merely to determine if there is sufficient evidence to authorize the trial court's judgment. Hallford v. Banks, 236 Ga. 472, 224 S.E.2d 35. The evidence must be construed in the light most favorable to uphold the verdict, the conflicts resolved against the appellant, and if there is any evidence to support the verdict it must be affirmed. Johnson v. State, 231 Ga. 138, 139(1), 200 S.E.2d 734; Talley v. State, 137 Ga.App. 548, 549, 224 S.E.2d 455. That burden is met in this case.

(b) The second facet of defendant's argument is that there was no probative evidence of certain of the special damages allegedly suffered by plaintiff. He argues that plaintiff offered evidence of the value of a rug, a stereo, and some used furniture, all of which allegedly was damaged in appellee's basement. Defendant complains that plaintiff offered no basis for her opinion as to the value of these items and consequently that there is no probative evidence of that fact. But as to the other items of special damages, probative, admissible evidence was offered for the jury's consideration.

(c) Also in reference to value, defendant argues that the court erred in allowing a real estate broker to testify as to the diminution of the market value of plaintiff's property due to the change in water flow and resulting water destruction. The basis for this claimed error is that the broker did not qualify as an expert so as to justify the admission of opinion testimony to the effect that the property had suffered a loss in value of approximately $4,000-$5,000.

An expert is one who by habits of life and business has a peculiar skill in forming an opinion on the subject in dispute. Sims v. State, 40 Ga.App. 10, 13, 148 S.E. 769. In this case the witness testified that he was a real estate broker in DeKalb County. He had seen plaintiff's property and marketed it for her. He had been a real estate broker approximately seven years and had made appraisals as a part of his business. His business required him to ascertain property values and the current market values and he believed himself qualified to do so. In appraisals the witness was required to determine the adverse impact of water damage on market value.

Whether or not a witness is allowed to testify as an expert is a question for the sound discretion of the trial court and such discretion, unless abused, will not be disturbed. Rouse v. Fussell, 106 Ga.App. 259(4), 126 S.E.2d 830. The trial court properly allowed the broker to testify as an expert, and we find no abuse of discretion in this regard.

(d) Finally defendant argues that the verdict for damages is not supported by the evidence. In her complaint plaintiff sought $10,000 special damages and $50,000 general damages. In its charge to the jury, the trial court limited the special damages to those explicitly proved, and the general damages to the diminution of the property value to the extent believed and accepted by the jury. The evidence offered by plaintiff through her own testimony and that of her expert witness established the range of the special and general damages well within the findings of the jury.

Defendant contends the evidence of damages presented by plaintiff, when taken in its most beneficial aspect favoring plaintiff will establish damages of only $7,135. This argument can only be arrived at by breaking down the testimony as to damages into three elements: $5,000 diminution in value of plaintiff's property; $775 on loss of personalty; and $1,360 for the repair of water damage. It is argued that this evidence will not support the verdict of $10,000, and further, that one cannot determine from the evidence and the charge of the court what evidence of value the jury accepted as validly attributable to the trespass created by the improper water flow. It is not for us to say how the jury reached its verdict, as we were not in the jury room.

There was proof of the amount of general damages, which was the testimony of a real estate broker who testified that according to his expert opinion the diminution in value to plaintiff's property due to the trespass was $4,000-$5,000. However, there was other factual and physical evidence which the jury may have considered, as well as the expert's testimony in determining the general damages. All other elements of damages proven were special damages, some of which were properly presented in evidence and others which were, as noted in Division 1(b) above, not properly presented in evidence and perhaps lacked probative value.

The jury is not compelled to accept the testimony of the real estate broker regarding diminution in value at its maximum, $5,000. Such a result is in contradiction to the past decisions of this court. The general rule as stated in Hixson v. Barrow, 135 Ga.App. 519, 521(1), 218 S.E.2d 253, 256, is that "the jury is 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." Here there was other evidence which the jury might consider along with the expert's testimony. Moreover, the jury was not required to accept the opinion of the expert that the special damage only amounted to $4,000-$5,000. A 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. Garner v. Gwinnett County, 105 Ga.App. 714(5), 719, 125 S.E.2d 563; Reserve Life Ins. Co. v. Gay, 214 Ga. 2, 3, 102 S.E.2d 492; Palmer v. Howse, 133 Ga.App. 619, 620(1), 212 S.E.2d 2.

Jurors 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. See Southern v. Cobb County, 78 Ga.App. 58(2), 50 S.E.2d 226; McLendon v. City of LaGrange, 47 Ga.App. 690, 691(3), 171 S.E. 307; Sammons v. Copeland, 85 Ga.App. 318, 320-322(1), 69 S.E.2d 617; and cits. in these cases.

Generally, examination of the multitude of these cases citing the above rule shows a reduction by the jury in the verdict as opposed to the expert's opinion. But in the case of Reserve Life Ins. Co. v. Gay, 214 Ga. 2, 3, 102 S.E.2d 492, supra, the expert opinion showed attorney fees of $400, whereas the entire judgment was for $800, and the Supreme Court refused to hold that the judgment should be reduced. In the McLendon case, supra, the facts are not given to make a determination as to whether or not the jury revised the verdict higher than the testimony by the experts. In the Southern v. Cobb County case, the jury, after looking at pictures of the property and viewing the premises, reduced the consequential benefits to nil.

In Georgia Power Co. v. Harwell, 113 Ga.App. 653, 654, 149 S.E.2d 376, the verdict was higher than the opinion evidence indicated (although it appears that plaintiff...