State Highway Dept. v. Andrus

• Decision Date: 05 December 1956
• Docket Number: No. 19417,19417
• Citation: 95 S.E.2d 781,212 Ga. 737
• Parties: STATE HIGHWAY DEPARTMENT OF GEORGIA v. Carl A. ANDRUS et al.
• Court: Georgia Supreme Court

Page 781

95 S.E.2d 781

212 Ga. 737

STATE HIGHWAY DEPARTMENT OF GEORGIA v. Carl A. ANDRUS et al.

No. 19417.

Supreme Court of Georgia.

Dec. 5, 1956.

Harold Sheats, Paul H. Anderson, W. Neal Baird, Atlanta, for plaintiff in error.

Wm. G. Grant, Robt. W. Spears, Atlanta, for defendant in error.

Syllabus Opinion by the Court

MOBLEY, Justice.

This case is before this court upon the grant of a petition for certiorari from the Court of Appeals. Andrus v. State Highway Dept., 93 Ga.App. 827, 93 S.E.2d 174. After a careful consideration of the two issues presented in the petition, it is our opinion that the decision of the Court of Appeals is correct. The decision of that court in division two of its opinion requires no elaboration by this court.

In division three of its opinion, the Court of Appeals held that the trial court erred in charging the jury on the subject of consequential benefits where the jury viewed the premises, but where no evidence was presented upon the trial as to the amount of consequential benefits. From the record it appears that, while there was evidence that there would be consequential benefits to the remaining property after the condemnation, there was no evidence whatever as to the amount of consequential benefits. The question presented in this case is whether the jury, who viewed the premises, would be permitted to fix the amount of consequential benefits solely from their own knowledge and experience and from information acquired by them in viewing the premises. We are unable to find where this court has ever directly passed on this question.

Under the English common law, the presiding judge in real and mixed actions was authorized, in his discretion, to permit the jury to view the premises. See 1 Thompson on Trials, 665, § 875 et seq. In 1705, an English statute was enacted which extended the view to all civil actions. 4 Anne, ch. 16, § 8. This statute, known as the Statute of Anne, provided that the jury could view the premises in the discretion of the trial court, 'in order to their better understanding the evidence that will be given upon the trial of such issues.' By our adopting statute of February 25, 1784, such of the common and statute laws of England as were usually in force in this State on May 14, 1776, were adopted as the law of Georgia so far as they were not contrary to the Constitution, laws, and form of government established in this State. Cobbs New Digest, 1851, p. 721. In Moore v. Macon Coca-Cola Bottling Co., 180 Ga. 335, 337, 178 S.E. 711, this court cited the statute of Anne and other English and American authorities on this subject, and held that it was within the discretion of the trial court to permit the jury to view the premises, 'it appearing from the defendant's motion that a view of the premises and machinery would aid the jury to better understand the testimony of the witnesses as to the kind and nature of the machinery used by the defendant and the method used by it in bottling the coca-cola.'

In Brown v. Transcontinental Gas Pipe Line Corp., 210 Ga. 580, 585, 82 S.E.2d 12, 15, it was stated: 'While it is the law of this State that a trial judge may permit the jury to view the premises, with or without the consent of the parties, whenever in the discretion of the trial judge a view of the premises would aid the jury to better understand the evidence'; but the trial judge was not authorized to himself view the premises without the consent of the parties and thereafter base his judgment upon the evidence and a view of the premises.

The jury certainly may apply to the testimony the knowledge obtained by them in seeing the property involved, and may use their knowledge in construing the evidence. But where no evidence is introduced before the jury, can the jury render a verdict based solely upon their own knowledge and experience and information gained by them in viewing the premises? Code § 110-108 provides: 'A juror shall not act on his private knowledge respecting the facts, witnesses, or parties, unless sworn and examined as a witness in the case.' In Gibson v. Carreker, 91 Ga. 617(2), 17 S.E. 965, it was held: 'It was error to charge the jury that in ascertaining the value of the land at the time of the breach [of a bond to convey land] they might consider not only the evidence, but their own knowledge as to the value of land in the country.' And in the opinion the court stated: 'It was certainly error to charge the jury that, in ascertaining the value of the lands at the time of the breach of the bonds, they might consider not only the evidence, but their own knowledge as to the value of land in the country. Juries should decide questions of fact according to the evidence introduced before them, and their personal knowledge certainly cannot constitute a part of the evidence. This is so obvious that we deem a further discussion of this subject unnecessary.' In Shahan v. American Telephone & Tel. Co., 72 Ga.App. 749(3), 35 S.E.2d 5, 7, that court held: 'A charge from which the jury may have inferred that facts ascertained by them solely from a view of the property had probative value within themselves and without regard to the evidence was improper and incorrect.' In 3 Am. & Eng.Ann.Cases 302, it is stated: 'It is a well-settled rule that in determining the value of the premises sought to be condemned and in assessing damages in eminent domain proceedings, the jury may not wholly disregard the evidence and depend only upon their own experience and the facts brought to their knowledge by a view of the premises. City of Detroit v. Detroit G. H. & M. R. Co., 112 Mich. 304, 70 N.W. 573; De Gray v. New York, & N. J. Telephone Co., 68 N.J.L. 454, 53 A. 200; Washburn v. Milwaukee & L. W. R. Co., 59 Wis. 364, 18 N.W. 328; 20 Am. & Eng.R.Cas. 225.' 'A verdict based partly on the jury's view of premises should be set aside by reviewing court, unless...