State Highway Dept. v. Willis

• Decision Date: 05 November 1962
• Docket Number: No. 39581,No. 2,39581,2
• Citation: 106 Ga.App. 821,128 S.E.2d 351
• Parties: STATE HIGHWAY DEPARTMENT v. R. P. WILLIS et al
• Court: Georgia Court of Appeals

Page 351

128 S.E.2d 351

106 Ga.App. 821

STATE HIGHWAY DEPARTMENT v. R. P. WILLIS et al.

No. 39581.

Court of Appeals of Georgia, Division No. 2.

Nov. 5, 1962.

Syllabus by the Court

1. 'Refusal to allow counsel to put a certain question to a witness on direct examination can not be held to be error where it does not appear that the expected answer was disclosed to the trial judge.' Gilpin v. State Highway Board, 39 Ga.App. 238, 146 S.E. 651. Rome Builders Supply, Inc. v. Rome Kraft Co., 104 Ga.App. 488(2), 122 S.E.2d 133.

2. A party cannot acquiesce in a ruling of the court, proceed with the trial with the ruling unchallenged, and thereafter, assert that the ruling was harmful error.

3. An expert witness cannot be cross-examined by use of a text or report which has not been shown to be a standard treatise upon the subject about which the witness is being cross-examined as an expert.

4. 'On the trial of an appeal from the award of assessors, in determining the value of land sought to be condemned, it is competent to introduce evidence of sales of similar property to that in question, made at or near the time of the taking.' Flemister v. Central Georgia Power Co., 140 Ga. 511, 512(6), 79 S.E. 148.

The State Highway Department of Georgia filed a petition under the authority of Ga.Laws 1957, p. 387, to condemn certain described land as the property of Russell Paul Willis. On trial of an appeal from the award of the special master, the jury returned a verdict in favor of the condemnee in the amount of $14,000. The condemnor filed a motion for a new trial which, as amended, was overruled. This ruling is assigned as error.

Eugene Cook, Atty. Gen., Carter Goode and Paul Miller, Asst. Attys. Gen., William J. Gibbons and Asa D. Kelley, Jr., Deputy Asst. Attys. Gen., Atlanta, S. B. McCall, Cook County Atty., Adel, for plaintiff in error.

Hugh D. Wright, Adel, Robert R. Forrester, Tifton, for defendants in error.

FRANKUM, Judge.

1. 'Refusal to allow counsel to put a certain question to a witness on direct examination can not be held to be error where it does not appear that the expected answer was disclosed to the trial judge.' Gilpin v. State Highway Board, 39 Ga.App. 238, 146 S.E. 651, supra. Rome Builders Supply, Inc. v. Rome Kraft Co., 104 Ga.App. 488(2), 122 S.E.2d 133, supra. Therefore, special ground 1 of the motion for new trial is without merit.

2. Special ground two complains that the court committed error 'Because the court refused to allow Lawrence G. Rowell, a witness for the plaintiff, while on cross examination, and who on direct examination and cross examination had previously testified that the land in controversy before it was taken was worth $6,975, to answer the following question by counsel for condemnee on cross examination: 'Q. What do you base that on Mr. Witness?' Whereupon the witness proceeded to answer as follows: 'A. Mr. Wright, for me to tell you what I base it on it would be necessary for me to go into these six similar sales. A correlation of value and adjustments * * *.' Whereupon counsel for the condemnee, who asked the question, interposed the following objection: 'If it please the court, it's not necessary for him to go into similar sales. He can answer the question how he arrived at $6,975 for the total tract.' The court sustained the objection and refused to let the witness go into the values of similar tracts, information of which was derived from others on the grounds that it was hearsay.'

The condemnor contends that the court should have allowed the witness to answer the question, and that counsel for the condemnee had no right to object to the witness answering the question propounded by him. However, the question is not properly presented since it nowhere appears that the condemnor protested the court's ruling or insisted that the witness should be allowed to answer the question after the condemnee's counsel interposed this objection. From the motion it appears that the condemnor acquiesced in the court's ruling and allowed it to go unchallenged, and failed to insist that the witness should be allowed to answer the question. If counsel for condemnor felt that his client's case was being prejudiced, he should have informed the court of his desire that the witness be allowed to answer the question. See Jackson v. Howell, 59 Ga.App. 444, 1 S.E.2d 209; Howard v. Montezuma Fertilizer Co., 34 Ga.App. 411, 130 S.E. 72; Moore v. McAfee, 151 Ga. 270, 106 S.E. 274. As stated in Childs v. Ponder, 117 Ga. 553, 554, 43 S.E. 986: 'Parties can not take their chances for a favorable verdict, and then, the result being unsatisfactory, ask that a new trial be granted because of irregularities, * * * which they have passed over in silence during the progress of the trial.' This ground is without merit.

3. In special ground 5 of the motion movant contends that the court limited its right to cross-examine a witness who, on direct examination, had given an opinion as to the value of the land condemned. Movant contends that this was done when the court sustained an objection by the condemnee's counsel and prohibited the condemnor from cross-examining the witness...