State Highway Dept. v. Irvin

• Decision Date: 05 November 1959
• Docket Number: No. 37825,No. 1,37825,1
• Citation: 112 S.E.2d 216,100 Ga.App. 624
• Parties: STATE HIGHWAY DEPARTMENT v. M. K. IRVIN et al
• Court: Georgia Court of Appeals

Page 216

112 S.E.2d 216

100 Ga.App. 624

STATE HIGHWAY DEPARTMENT v. M. K. IRVIN et al.

No. 37825.

Court of Appeals of Georgia, Division No. 1.

Nov. 5, 1959,

Syllabus by the Court

1. A condemnee may introduce evidence to show increased distance to local merchants, neighbors, and markets as an element of consequential damage where the State Highway Department has closed a county road which is used as ingress and egress to his property.

2. Ground 4 of the amended motion for new trial complains that the trial judge refused to permit the condemnor to cross-examine a condemnee's witness as to whether the witness had received payment for consequential damages to his property caused by the same road construction as that which the condemnee maintained damaged his property. The testimony which the condemnee sought to elicit by his cross-examination of the witness was, as held in Georgia Power Co. v. Brooks, 207 Ga. 406, 62 S.E.2d 183, inadmissible. Its exclusion was a correct ruling. 'While the right of cross-examination of the witnesses called against a party is a substantial right, the trial judge may restrict the cross-examination to matters material to the issues. Clifton v. State, 187 Ga. 502, 508, 2 S.E.2d 102.' Waller v. State, 213 Ga. 291, 294, 99 S.E.2d 113.

3. The trial judge should have required the jury to return a verdict for a lump sum instead of instructing the jury to return 'such and such amount' actual damages for the property taken and 'such and such amount' consequential damages to property not taken; however, this is not such an error as to require reversal. Central Georgia Power Co. v. Prestion, 137 Ga. 347, 73 S.E. 505.

The State Highway Department filed its petition for condemnation in rem against 0.603 acres of land of M. R. Irvin in the Superior Court of Turner County. The matter came on for trial and a verdict was rendered for the condemnee in the amount of $300 for the 0.603 acre of land taken and $9,350 as consequential damages to the land not taken, aggregating a total amount of $9,650. The condemnor filed a motion for a new trial on the usual grounds and later amended to set out special grounds only. Special grounds 1, 2, and 3 complain that the trial judge erred in allowing evidence to be introduced to show increased circuity of travel incurred by the condemnee resulting from the State Highway Department closing a county road which was one mode of ingress and egress to his property. Grounds 4 and 5 of condemnor's amended motion for new trial involves the admissibility of certain testimony concerning the amount of money received by condemnee's witness, T. J. Kelley, for the taking of a piece of land owned by him which had been condemned, of the same size and directly opposite, and similar to the strip taken from the condemnee, M. R. Irvin. Witness T. J. Kelley, in answer to a question on direct examination by condemnee's counsel as to his opinion of the value of the 0.603 acre taken from Irvin replied: 'I figure it ought to be worth $400, that's what I got for mine.' Later, on cross-examination of the same witness, the court, after striking the above testimony sustained the condemnee's objection to the following question asked of the witness by condemnor's counsel, 'Now a moment ago you testified you received $400 for yours,...