Justice v. Georgia Power Co., 65068

Citation164 Ga.App. 599,298 S.E.2d 579
Decision Date02 December 1982
Docket NumberNo. 65068,65068
PartiesJUSTICE v. GEORGIA POWER COMPANY.
CourtUnited States Court of Appeals (Georgia)

Lamar Gibson, Waycross, for appellant.

E. Kontz Bennet, Sr., Waycross, for appellee.

McMURRAY, Presiding Judge.

This is an appeal by the condemnee from a jury verdict awarding him $10,000 for an easement along his property. Condemnee challenges the award on three specific grounds. Held:

1. Error is first cited that the trial court erred in holding condemnee did not have the right to opening and concluding arguments even if he decided to present no evidence. He relies on Canada Dry Bottling Company v. Campbell, 112 Ga.App. 56, 143 S.E.2d 785, and numerous other cases holding that a defendant in a civil case is entitled to opening and concluding arguments to the jury when he has introduced no evidence. However, condemnor argues that this rule has no applicability to condemnation cases, citing State Highway Department v. Smith, 111 Ga.App. 292, 294(5), 141 S.E.2d 590, since the burden of proof is always on the condemnor no matter which party appeals to the superior court. Aliter is the result in other types of appeal cases unless there be statutory authority for same. See such cases as Hall County Board of Tax Assessors v. Reed, 142 Ga.App. 556, 236 S.E.2d 532; Stoddard v. Board of Tax Assessors of Grady County, 163 Ga.App. 499, 295 S.E.2d 170; Georgia Power Company v. McCrea, 46 Ga.App. 279(2), 167 S.E. 542; Georgia Power Company v. Brooks, 207 Ga. 406(4), 411, 62 S.E.2d 183.

The issue concerning condemnee's alleged right to open and close arose at the conclusion of condemnor's case when condemnee's counsel advised the court that he did not intend to introduce any evidence if the court permitted him to open and close. The pretrial order specifically provided that condemnor had the right to open and close. After lengthy argument on the issue, the court inquired as to whether condemnee had closed his case. Counsel advised the court that he wanted a ruling on the issue prior to closing his case. After repeatedly stating that he did not feel such a ruling would be proper until counsel closed, the trial judge finally "ruled" that condemnee would not be able to open and close even if he presented no evidence. Whereupon condemnee then presented the testimony of three witnesses and introduced documentary evidence.

It is true that a defendant who has inherited the right to open and close by introducing no evidence may not be denied that right. American Casualty Company v. Seckinger, 108 Ga.App. 262, 263, 132 S.E.2d 794. However, "the opening and conclusion are lost if [the defendant proves through the introduction of evidence] ... any facts that are material to the defence [sic]." East Tenn., Va. & Ga. Railway Co. v. Fleetwood, 90 Ga. 23, 24(4), 15 S.E. 778.

Upon the presentation of evidence after the trial court's advisory "ruling" prior to the close of his case counsel waived any right here to open and close. This case is distinguished from Phillips v. Smith, 76 Ga.App. 705, 47 S.E.2d 156, in which the defendants closed their case and their counsel started to open the argument before being stopped by the trial court. The trial court then granted defendants' motion to reopen the evidence, and this court held that the defendants did not waive any objection to the court's ruling on argument by reopening their case with leave of court. In the present case, condemnee merely sought an advisory "ruling" from the court prior to the close of his case, and upon receiving the "ruling" proceeded with the presentation of evidence. This enumeration is not meritorious. We do not here pass upon the question of whether or not in a condemnation case, the condemnee, as appellant, may admit a prima facie case (as to value or amount of damage done) and assume the burden of proof for the purpose of obtaining the opening and closing argument. Again we refer to the fact that the burden of proof is always on the condemnor to prove the value or damage done and the condemnee is "privileged to produce evidence that is beneficial [to condemnee] irrespective of the evidence of the [condemnor]." Georgia Power Company v. Brooks, 207 Ga. 406, 411, 62 S.E.2d 183, supra. See also Venable v. State Highway Department, 138 Ga.App. 788, 789(1), 227 S.E.2d 509. But here we are not required to face this question and decide it. Further, the burden of proving value and damages never shifts from the condemnor, though a burden of producing evidence may arise on the part of the condemnee "when he asserts the greater value or damage." Lewis v. State Highway Department, 110 Ga.App. 845(1), 140 S.E.2d 109.

2. Condemnee's second enumeration of error challenges the trial court's failure to charge the jury on consequential damages. No specific request to charge was made before or during the trial. The trial court did instruct the jury that the burden was on the condemnor to show the value of the property taken and the consequential damages to the remainder of the property. The condemnor offered evidence as to the value of the property taken and testimony that there were no consequential damages to the remaining property. Yet on the...

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4 cases
  • West v. Department of Transp.
    • United States
    • Georgia Court of Appeals
    • November 12, 1985
    ...cases. White v. Ga. Power Co., 237 Ga. 341, 227 S.E.2d 385, appeal after remand, 247 Ga. 256, 274 S.E.2d 565; Justice v. Ga. Power Co., 164 Ga.App. 599, 298 S.E.2d 579. This burden never shifts from the condemnor, although once the condemnor has met its burden of proof by establishing a pri......
  • Department of Transp. v. Gunnels, 70045
    • United States
    • Georgia Court of Appeals
    • July 15, 1985
    ...taking compared with its market value in its new circumstance just after the time of the taking.' [Cits.]" Justice v. Ga. Power Co., 164 Ga.App. 599, 601, 298 S.E.2d 579 (1982). Thus, since the jury in this partial taking case was given the instant charge and was also charged on consequenti......
  • Department of Transp. v. Gunnels, 42632
    • United States
    • Georgia Supreme Court
    • March 4, 1986
    ... ... 255 Ga. 495 ... DEPARTMENT OF TRANSPORTATION ... No. 42632 ... Supreme Court of Georgia ... March 4, 1986 ...         [255 Ga. 500] Michael J. Bowers, Atty. Gen., Jack L. Park, ... 497] after the time of the taking ... ' Justice v. Ga. Power Co., 164 Ga.App. 599, 601, 298 S.E.2d 579 (1982). Thus, since the jury in this ... ...
  • Anderson v. Williams
    • United States
    • Georgia Court of Appeals
    • July 3, 1989
    ...right to open and close are lost if defendant introduces evidence of facts which are material to the defense. Justice v. Ga. Power Co., 164 Ga.App. 599(1), 298 S.E.2d 579 (1982). She contends that defendant did not admit a prima facie case and introduced seventeen exhibits which forfeited i......

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