Housing Authority of City of Atlanta v. Troncalli
| Decision Date | 18 March 1965 |
| Docket Number | 3,Nos. 1,No. 41007,2,41007,s. 1 |
| Citation | 142 S.E.2d 93,111 Ga.App. 515 |
| Parties | HOUSING AUTHORITY OF the CITY OF ATLANTA v. M. J. TRONCALLI |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
A jury verdict will not be reversed on the ground that an otherwise correct and applicable principle of law is not supported by evidence if there is any evidence, direct or circumstantial, from which an inference is authorized to which the instruction relates. It was not error in this condemnation case, after defining market value and instructing the jury that this is ordinarily the measure of damages, to further state in effect that if the jury found the property to have a unique or special use to the owner they should determine just and adequate compensation without restricting themselves to market value as such.
The Housing Authority of the City of Atlanta condemned a piece of business property located near the intersection of Butler and Houston Streets. From the verdict on the trial of the case the condemnor appealed the denial of its motion for a new trial on one special ground only.
King & Spalding, R. Byron Attridge, Charles M. Kidd, Atlanta, for plaintiff in error.
Ernest H. Stanford, Atlanta, for defendant in error.
The court, after three times stating that market value is the measure of damages in a condemnation case, charged that if the jury should find from the evidence 'that this property has some unique or special use to the owner or to his benefit, so that fair market value that would ordinarily be realized on the sale of property would not afford just and adequate compensation for the owner for the taking of this property, then in that event you would determine what constitutes just and adequate compensation without restricting yourself to the market value of the property so taken, that is, the market value as such.' That the charge is proper when supported by evidence that the property has a unique pecuniary value to the owner which could not be realized on the open market, is supported by Fulton County v. Cox, 99 Ga.App. 743, 109 S.E.2d 849; Polk v. Fulton County, 96 Ga.App. 733(4), 101 S.E.2d 736; Georgia Power Co. v. Pittman, 92 Ga.App. 673, 89 S.E.2d 577; Housing Authority of Savannah v. Savannah Iron & Wire Works, 91 Ga.App. 881, 87 S.E.2d 671; Housing Authority of City of Augusta v. Holloway, 63 Ga.App. 485, 11 S.E.2d 418; Atlantic Coast Line R. Co. v. Postal Tel. Cable Co., 120 Ga. 268, 280, 48 S.E. 15, 1 Ann.Cas. 734; Elbert County v. Brown, 16 Ga.App. 834(8), 86 S.E. 651. But this instruction is beset with pitfalls and has caused reversal where the appellate court determined there was no evidence to support the proposition that actual market value as determined by the willing-seller, wanting buyer yardstick would not suffice. It is cause for reversal where there is no evidence of unique value to the owner, State Highway Dept. v. Thomas, 106 Ga.App. 849, 128 S.E.2d 520, but not where the evidence shows the property has some unique and special value to him alone. Fulton County v. Cox, 99 Ga.App. 743(2), 109 S.E.2d 849. It must show unusual circumstances 'which would make any appreciable distinction', Ga. Power Co. v. Pittman, 92 Ga.App. 673, 676, 89 S.E.2d 577, and is proper where the jury is not 'bound to find' that two measures coincide, State Hwy. Dept. v. Robinson, 103 Ga.App. 12, 15, 118 S.E.2d 289. The evidence should show that the value to the owner theory is applicable. State Hwy. Dept. v. Cochran, 108 Ga.App. 61(2), 131 S.E.2d 802.
The evidence to authorize a jury instruction need not be substantial or direct; it is enough if there is even slight evidence consisting of inferences drawn from the testimony. Harper v. Hall, 76 Ga.App. 441(2), 46 S.E.2d 201; Bowie Martin, Inc. v. Dews, 73 Ga.App. 73(1), 35 S.E.2d 577. This is true even though the great preponderance of evidence tends to show that a supposed state of facts does not exist. Hawkins v. State, 80 Ga.App. 496(2), 56 S.E.2d 315. There is sufficient testimony coming from one of the condemnor's witnesses to authorize a jury inference that in the present case an owner-value approach to valuation would be different from a market-value approach. Strictly speaking, there are three recognized techniques for determining market value: replacement cost new less depreciation, income, and comparable sales. The appraiser was undoubtedly discussing these methods in arriving at the two valuations he gave, but he referred to one of them as value to the investor and the other as value to the owner. He 'estimated what it would be worth as an income property * * * to a buyer to buy it and to use it, and also considered what it would be worth to the present owner, the top value it could be worth to the present owner.' The values resulting from the two methods were different. The witness then explained that the difficulty was that the land was located in a heavy traffic area surrounded by large enterprises, and was high priced. The building on it used as a garage did not represent an improvement in accordance with the nature of the land because of its small size. There were not many garages in the area, and the witness did not know of another garage built like that one.
Thus, from the testimony of the condemnor's assessor it appears that it would be difficult to duplicate the property in anything like a comparable location. As to this the condemnee testified: He also testified that a move would ruin his business, and The reason why no comparable property could be found comes out clearly in the testimony of the condemnor's appraiser that ordinarily such property would be put to a more expensive use from the standpoint of buildings and fixtures, and from other testimony that the land was in a heavy traffic area surrounded by large enterprises and was high priced. The owner was running a tune-up and brake shop, and it cannot be assumed that his was a primarily transient business; in fact, he testified that the move (presumably to a location farther out, where he would lose the advantage of being within walking distance of large office buildings) would ruin his business. Every person who has an established business or even a residence in a location which cannot be duplicated within the immediate area suffers a loss which is particular and unique to him and not shared by members of the general public dealing in such property and buying and selling it for profit. Market value is not necessarily just and adequate compensation to them, for market value presupposes not only a buyer willing to purchase but a seller willing to sell. If the property must be duplicated for the business to survive, and if there is no substantially comparable property within the area, then the loss of the forced seller is such that market value does not represent just and adequate compensation to him.
Troncalli, the condemnee, testified that he personally built the building on a lot which he had purchased at a very reasonable cash outlay from an estate; that he personally handfitted the buttresses on the corner posts and put in sliding, disappearing doors; that he rented out some of the parking spaces and turned over the transmission repair business to a younger man who leased some of the space in order to take care of the automatic transmission work for him. Asked if it was a good location for his business, he replied, He testified that in his opinion the value of the property was $45,000 because, He was then specifically asked, 'And the value of this property to you, in your opinion is how much?' to which he replied $45,000. It is true that on cross examination opposing counsel asked him what the market value of the property was in his opinion and he replied with the same figure, but this by no means demands the conclusion that he considered the value to himself and the market value as being the same thing. Everything he said showed him to be a garage man without legal training who had personally built a building and worked up a business that (again in the language of the condemnor's witness) was worth more to him than to the ordinary investor. The inference is explicit that this particular use, with this particular building and business, is unique to this particular man. His statement, in fact, was: 'Well, just to be truthful about it, get down to the fact, I wouldn't sell it for 45 [45,000] if I was on a free market.'
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