Lewis v. State Highway Dept., 40998

• Decision Date: 30 November 1964
• Docket Number: No. 3,No. 40998,40998,3
• Citation: 110 Ga.App. 845,140 S.E.2d 109
• Parties: Dorothy LEWIS v. STATE HIGHWAY DEPARTMENT
• Court: Georgia Court of Appeals

Page 109

140 S.E.2d 109

110 Ga.App. 845

Dorothy LEWIS v. STATE HIGHWAY DEPARTMENT.

No. 40998.

Court of Appeals of Georgia, Division No. 3.

Nov. 30, 1964.

Rehearing Denied Dec. 16, 1964.

Syllabus by the Court

1. (a) The burden of proving the value of the lands taken and the consequential damage to the remaining portion not taken rests upon the condemnor. If the condemnee contends that the value or the amount of the damage is greater than is shown by the condemnor's proof and seeks a verdict for some greater amount he must introduce evidence that will itself or together with other evidence in the case support the verdict, else if a verdict is returned for an amount greater than is authorized by the evidence it will fall because unsupported.

(b) A charge that where the condemnee asserts that he is entitled to compensation greater than that shown by the condemnor's evidence the burden of proof rests upon him to prove by a preponderance of the evidence that his assertion is true, is error. 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.

(c) The holding of Polk v. Fulton County, 96 Ga.App. 733, 735(3), 101 S.E.2d 736, being in conflict with Georgia Power Co. v. Brooks, 207 Ga. 406, 62 S.E.2d 183, must yield; it is disapproved and will not be followed.

2. While an expert witness is not required to state the facts which form the basis of his opinion, he is not prohibited from doing so, and it is error to refuse to permit him to do it.

Jones, Sparks, Benton & Cork, Frank C. Jones, Macon, for plaintiff in error.

Eugene Cook, Atty. Gen., Richard L. Chambers and Horace E. Campbell, Jr., Asst. Attys. Gen., Atlanta, T. Reese Watkins, Deputy Asst. Atty. Gen., Macon, for defendant in error.

EBERHARDT, Judge.

1. Error is assigned on the following charge as being unsound as an abstract statement of law (ground 6) and as confusing, misleading and argumentative (ground 7): 'The law further provides that the burden of proof generally lies upon the party asserting a fact. Therefore, where the condemnee asserts the compensation to be paid, to which she is justly entitled, is greater than that shown by the condemnor's evidence, then the law places upon her likewise the burden to prove by a preponderance of the evidence that such assertion on her part is true.'

We agree that the charge is unsound as an abstract statement of law under the authority of Georgia Power Co. v. Brooks, 207 Ga. 406, 411, 62 S.E.2d 183. There the court, speaking through Chief Justice Duckworth, held that '[T]he basic and controlling requirement is the constitutional command that, before such taking of private property for public use, the taker must first pay therefor, and this burdens the taker to prove the value thereof. To obtain a verdict fixing that value, the taker must introduce evidence showing value. * * * That ruling is consistent with the ruling placing the burden of proving the value upon the condemnor. In all cases the parties are privileged to produce evidence that is beneficial to themselves, irrespective of the evidence of the other party.' Accord: Andrus v. State Highway Dept., 93 Ga.App. 827 828(2), 93 S.E.2d 174; Georgia Power Co. v. Smith, 94 Ga.App. 164, 166, 167(3), 94 S.E.2d 48; Garner v. Gwinnett County, 105 Ga.App. 714, 717(3), 125 S.E.2d 563.

The distinction between the 'burden of proof' and the 'burden of producing evidence' is clearly shown in Smith, 94 Ga.App. 166, 94 S.E.2d 49, supra, where Justice Quillian said: 'In a case where the power of eminent domain is exercised, the burden is on the condemnor to show the value of the property taken and the consequential damages to the remainder of the property. Where a verdict is returned for an amount larger than is authorized by the evidence adduced by the condemnor, that of the condemnee must support the verdict; that is, the condemnee's proof, added to and supplemented by facts appearing from that of the condemnor for that purpose must furnish the factual foundation for the verdict rendered by the jury. ...