Hollywood Baptist Church of Rome v. State Highway Dept.
| Decision Date | 13 July 1966 |
| Docket Number | No. 42146,No. 2,42146,2 |
| Parties | HOLLYWOOD BAPTIST CHURCH OF ROME v. STATE HIGHWAY DEPARTMENT |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The trial court committed no error as to the rulings complained of on this appeal from this eminent domain action.
A full statement of the facts involved appears in State Highway Dept. v. Hollywood Baptist Church, 112 Ga.App. 857, 146 S.E.2d 570, when the case was here before. A second trial at which substantially the same evidence was introduced resulted in a verdict and judgment from which the condemnee appeals.
Clower & Royal, Robert L. Royal, Rome, for plaintiff in error.
Arthur K. Bolton, Atty. Gen., Richard L. Chambers, Asst. Atty. Gen., Horace E. Campbell, Jr., Deputy Asst. Atty. Gen., Atlanta, George Anderson, Rome, for appellee.
1. When this case was here before it was pointed out that one of the errors in the court's instructions to the jury was a statement that inconvenience such as noise, smoke and dust might be considered by the jury if shown to adversely affect the value of the condemnee's remaining property. While such a statement is abstractly correct there was not on the first trial, nor is there upon the second one, any evidence of probative value that the value of the condemnee's remaining property would be permanently diminished by noise and dust caused by automobiles travelling along the new highway. It did appear that during construction some clay washed from a cut which the condemnor appropriated as a 'slope easement' over some of the remaining land. No competent evidence was offered as to the permanency of this condition or that it was a necessary concomitant of the road design. The trial judge was accordingly correct, under the former decision in this case, in giving the jury in charge the rule of law that 'consequential damages to the remainder of the property which might have been caused by the negligence or improper construction of the highway are not proper elements to be considered in this condemnation proceeding, but may be the subject of a separate suit for damages.'
2. The court further charged: 'In determining just and adequate compensation, under constitutional provision, market value and actual value will ordinarily be synonymous.' That the statement is correct, see Housing Authority of City of Augusta v. Holloway, 63 Ga.App. 485, 11 S.E.2d 418; Housing Authority of Savannah v. Savannah Wire &c. Works, 91 Ga.App. 881, 87 S.E.2d 671. The evidence on the present as on the former trial of the case authorized the jury to apply a 'fair market value' approach only. (See State Hwy. Dept. v. Hollywood Baptist Church of Rome, supra, Headnote 1.) In Bowers v. Fulton County, 221 Ga. 731(5), 146 S.E.2d 884, a charge that 'the Constitution does not require in all cases the fair market value of the property taken to be used as a basis of determining just and adequate compensation, although, as stated, the measure is generally by determining the fair market value of the property actually taken' was held to be inaccurate on the ground that 'it impliedly instructed the jury the Constitution contained a provision in reference to market value being the measure of just and adequate compensation', which it does not. The charge at issue here does not contain this fault, nor was it an inaccurate instruction under the evidence. In Bowers the elements of compensable damage included loss of business, loss of profits, expenses of moving his business, and so on. There the entire holding of the condemnee was involved. Here the land taken was a 10-foot strip from each of two lots, a slope easement, and nine square feet from a corner of one lot, the whole amounting to .028 acre. The charge as given was correct.
3. The third enumeration of error relating to the court's charge to the jury fails to comply with Code Ann. § 70-207 (Ga.L.1965, pp. 18, 31) in that it does not appear that any objection was made in the trial court to the instructions given. While under subsection (c) this court is empowered to review instructions which are substantially and harmfully erroneous as a matter of law, we take this to mean that the error must be such as to be blatantly apparent and prejudicial to the extent that it raises the question of whether the losing party has, to some extent at least, been deprived of a fair trial because of it. The excerpt here dealt with does not fall into this category, and accordingly will not be further considered.
4. 'When a witness is qualified as an expert, it is not necessary that he state the facts on which his opinion is based but he may do so.' Lewis v. State Hwy. Dept., 110 Ga.App. 845, 847, 140 S.E.2d 109, 111; Southern R. Co. v. Thacker, 50 Ga.App. 706(3), 179 S.E. 225. Where the value of property is in dispute, therefore, evidence of sales of comparable property not too remote in point...
To continue reading
Request your trial
-
Dendy v. Metropolitan Atlanta Rapid Transit Authority, 63591
...inapplicable 'unless it appears that error contended is " 'blatently apparent and prejudicial' " (Hollywood Baptist Church v. State Highway Dept., 114 Ga.App. 98, 99(3), 150 S.E.2d 271 (1966)), and that a " 'gross miscarriage of justice attributable to it is about to result.' " Nathan v. Du......
-
Central of Georgia Ry. Co. v. Luther, 47631
...the losing party has, to some extent at least, been deprived of a fair trial because of it' (Hollywood Baptist Church of Rome v. State Highway Dept., 114 Ga.App. 98, 100, 150 S.E.2d 271, 274) or 'a gross injustice is about to result or has resulted directly attributable to the alleged error......
-
Holcomb v. Kirby, s. 43112
...630(6), 636, 149 S.E.2d 383; Georgia Power Co. v. Maddox, 113 Ga.App. 642(1), 149 S.E.2d 393; Hollywood Baptist Church of Rome v. State Highway Dept., 114 Ga.App. 98, 99(3), 150 S.E.2d 271; Southwire Co. v. Franklin Aluminum Co., 114 Ga.App. 337(2), 151 S.E.2d 493; Metropolitan Transit Syst......
-
Windsor Forest, Inc. v. Rocker
...630(6), 636, 149 S.E.2d 383; Georgia Power Co. v. Maddox, 113 Ga.App. 642(1), 149 S.E.2d 393; Hollywood Baptist Church of Rome v. State Highway Dept., 114 Ga.App. 98, 99(3), 150 S.E.2d 271; Southwire Company v. Franklin Aluminum Co., 114 Ga.App. 337(2), 151 S.E.2d 493; Saint v. Ryan, 114 Ga......