State Highway Board of Georgia v. Warthen

• Decision Date: 04 December 1936
• Docket Number: 25651.
• Citation: 189 S.E. 76,54 Ga.App. 759
• Parties: STATE HIGHWAY BOARD OF GEORGIA v. WARTHEN et al.
• Court: Georgia Court of Appeals

189 S.E. 76

54 Ga.App. 759

STATE HIGHWAY BOARD OF GEORGIA v. WARTHEN et al.

No. 25651.

Court of Appeals of Georgia, First Division

December 4, 1936

Syllabus by the Court.

The court did not err in permitting the defendants to write off the sum of $50 from the verdict, or in thereafter overruling the motion for new trial.

Error from Superior Court, Walker County; C. H. Porter, Judge.

Suit by the State Highway Board of Georgia against S. M. Warthen and others. To review an adverse judgment, plaintiff brings error.

Affirmed.

S. W Fariss, Jr., and G. W. Langford, both of La Fayette, and Maddox, Matthews & Owens, of Rome, for plaintiff in error.

Wright & Covington, of Rome, and Rosser & Shaw, of La Fayette, for defendants in error.

BROYLES Chief Judge.

The State Highway Board of Georgia instituted proceedings to condemn a certain strip of land belonging to the estate of Mrs. S. A. Warthen et al., the purpose of which was to widen a street in La Fayette, Ga., which is a part of the state highway system. Appraisers, duly appointed, fixed the value of the property taken at $750, the consequential benefits at $150, and the consequential damages at $150. The defendants filed an appeal in the superior court and on the trial the jury rendered a verdict in favor of the defendants for $2,600. Judgment was rendered for $1,850, after deducting the $750 which had been paid under the award of the appraisers. The plaintiff filed a motion for new trial and before the court passed on this motion, the defendants, over the objection of plaintiff, wrote off $50 from the judgment "same being an amount in excess of the total amount which could have been considered by the jury as interest on the amount of damages assessed from the date of the award to the date of the return of the verdict in this cause; thus making the amount of the verdict and judgment in this cause the sum of $1,800 as the difference between the amount of the verdict of the jury and the award of the assessors." The order of the judge, on the motion for new trial, provided in part that "the defendants, condemnees, * * * having written off of the verdict and judgment in this cause the sum of $50 as the greatest amount which could have been returned by the jury as interest on the difference between the amount of the verdict of the jury in this cause and the award of the assessors from the date of the award of the assessors until the date of the return of the verdict in this cause, thus reducing * * * the judgment entered * * * to $1,800, the motion for a new trial * * * is overruled." The plaintiff assigns error on the court's "permitting defendants to write off the sum of $50 from said verdict," and on the overruling of the motion for new trial.

The motion for new trial is voluminous, and the first special ground excepts, practically, to the entire charge. We deem it unnecessary to discuss at length all of the alleged errors. Complaint is made that in the charge the court used the expressions "fair market value" and "value," and failed to use the expression "cash market value." The court did not err in using the terms "fair market value" and "value," or in failing to use the term "cash market value." He instructed the jury to determine first, the fair market value of the land taken, including the shade trees thereon, these being a part of the land; second the consequential damages, if any, to the land not taken, including any improvements thereon which were a part of the realty; and, third, the consequential benefits, if any, to the land not taken, including improvements thereon which were a part of the realty. It is well settled that "an owner of property taken for public purposes is entitled to receive as compensation therefor the fair market value." (Italics ours.) City of Reynolds v. Carter, 34 Ga.App. 252 (2), 129 S.E. 117; City of Newnan v. Davis, 145 Ga. 380(3), 89 S.E. 336; Louisville & N. R. Co. v. Postal, etc., Co., 143 Ga. 331 (2), 85 S.E. 110; Code, § 36-504. Furthermore, the court properly defined the term "market value" in accordance with the definition laid down in the case of Central Georgia Power Co. v. Mays, 137 Ga. 120, 123, 72 S.E. 900. The court properly charged that in determining the value of the land actually taken, including the shade trees which were a part of the land, consequential damages or benefits should not be considered, these being separate elements which should be considered separately. The fragmentary excerpts from the charge, which are quoted in the subdivisions of ground are of the motion for new trial, are not misleading when construed with the charge as a whole as it was presented to the jury. Subdivision h of ground one of the motion does not quote an excerpt, but attacks the court's charge on the subject of interest. The court charged the jury that in the event they found for the owners a sum in excess of the amount awarded by the assessors, "they are entitled to recover interest on the difference between the amount tendered and the amount of the award at seven per cent. per annum, from the date of the award of the assessors, and you should calculate this interest and add it to the amount of your award, not as interest, but as a part of your award." Movant insists that "the item of interest should be found as a separate item and not as a part of the award, and that it should be calculated from the date of the tender of the amount awarded by the assessors and not from the date of the award." It is true that the court erred in instructing the jury that the interest should be computed from the date of the award. The record shows that the amount of the award of the assessors was paid; and the interest on the difference between the amount of the verdict and the amount tendered should be computed "from the date of the tender, and not from the date of the award." Central Georgia Power Co. v. Stone, 142 Ga. 662 (2), 83 S.E. 524. However, the error was fully cured and...