State Highway Dept. v. Sinclair Refining Co., 38532

• Decision Date: 06 January 1961
• Docket Number: No. 38532,No. 1,38532,1
• Citation: 103 Ga.App. 18,118 S.E.2d 293
• Parties: STATE HIGHWAY DEPT. v. SINCLAIR REFINING COMPANY
• Court: Georgia Court of Appeals

Page 293

118 S.E.2d 293

103 Ga.App. 18

STATE HIGHWAY DEPT. v. SINCLAIR REFINING COMPANY.

No. 38532.

Court of Appeals of Georgia, Division No. 1.

Jan. 6, 1961.

Syllabus by the Court.

1. Special grounds 4, 5 and 6 of the condemnor's amended motion for new trial are controlled by the decision in State Highway Dept. v. Robinson, Ga.App., 118 S.E.2d 289.

2. The evidence adduced on the trial of the case authorized the instruction on consequential damages.

3. Where a charge covers the issues involved in a litigation, if additional instructions are desired they should be the subject of timely written requests.

4, 5. Special ground 9 of the motion for new trial is controlled by the decision in State Highway Dept. v. Robinson, supra, and special ground 10 was expressly abandoned.

6. Where a motion that the jury be allowed to view the premises involved in the litigation is made in the presence of the jury, before reversible error is shown, it must be shown that the opposite party was forced to object to such motion in the presence of the jury.

7, 8. In order to obtain a reversal because of the alleged illegal exclusion of evidence both error and harm must be shown.

9. The discretion of a trial judge in refusing a new trial on newly discovered evidence will not be disturbed where such evidence is merely cumulative or impeaching in character.

10. The amount of the verdict for the condemnee was authorized by the evidence.

The State Highway Department of Georgia instituted condemnation proceedings against certain property owned by the Sinclair Refining Co. in Elberton, Georgia. The State sought to condemn a strip of land approximately 150 feet long and varying in depth from 13 to 15 feet, 'Together with the right to enter upon any adjacent land of condemnee herein not taken, for the purpose of removing or dismantling, in its entirety, any and all structures or buildings or other encroachments, if any, lying wholly or partially within the right-of-way sought to be condemned in this proceeding.' After the award of the assessors was made the judgment of the superior court the appeal of the case to a jury came on to be heard, and after the jury returned its verdict the condemnor filed a motion for new trial on the usual general grounds as well as on 13 special grounds (numbered 4-16). The motion for new trial was overruled and it is to this judgment that the condemnor now excepts.

Eugene Cook, Atty. Gen., Paul Miller, Deputy Asst. Atty. Gen., Payne & Heard, E. Freeman Leverett, Woodrow Lavender, Elberton, for plaintiff in error.

Williford & Grant, Elberton, for defendant in error.

NICHOLS, Judge.

1. Special grounds 4, 5 and 6 of the condemnor's amended motion for new trial in this case are controlled adversely to the condemnor by the decision in the 2nd division of the opinion in State Highway Dept. v. Robinson, Ga.App., 118 S.E.2d 289.

2. Special ground 7 complains that the trial court erred in charging the jury with reference to consequential damages because there was no evidence sufficiently definite and competent to support a verdict for consequential damages.

The gist of this complaint is not that the charge given was contrary to law, but merely that there was no competent evidence adduced on the trial of the case to authorize such charge. Among others, Mr. W. H. Hoover, a witness for the condemnor, testified as to the consequential damages to the condemnee's property. Mr. Hoover was qualified as an expert by the condemnor, and while this witness did not testify as to the market value of the whole property owned by the condemnee before the taking, the value of the remainder after the taking and difference in such values, since the condemnor had qualified this witness as an expert the evidence of his opinion, under Code § 38-1710, was admissible and authorized the charge complained of. See also Minsk v. Fulton County, 83 Ga.App. 520, 64 S.E.2d 336. The trial court did not err in giving the charge complained of.

3. Special ground 8 complains that the trial court erred in failing to charge that, in the event the jury awarded the condemnee consequential damages, the total award could not be in excess of the total value of the whole property before the taking. The court instructed the jury: 'The method of determining the consequential damages, if any, would be the market value of the land not taken immediately before the taking of the land by the State Highway Department and the market value of the land not taken immediately after the taking of the land by the State Highway Department. The difference in those two values, if any, would be the measure of consequential damages.' The jury was elsewhere instructed as to the value of the land taken. When such charge is considered in its entirety it is evident that the jury could not, under the instructions given, have awarded the condemnee compensation in excess of the total value of the complete tract of land before the taking. If additional instructions had been desired they should have been the subject of a timely written request.

4. Special ground 9 is controlled adversely to the condemnor by the ruling in the 3rd division of the opinion of this court in the case of State Highway Dept. v. Robinson, supra.

5. Special ground 10 was expressly abandoned by the plaintiff in error in its brief and will therefore not be considered.

6. Special ground 11 complains that the trial court erred in refusing to grant its motion for mistrial made after the condemnee made a motion, in the presence of the jury, that the jury be allowed to view the premises affected by the condemnation action. Special ground 12 complains that the trial court erred in permitting the jury, over objection, to view the premises affected by the condemnation. These special grounds will be considered together inasmuch as they deal with the same subject matter.

In Shahan v. American Tel. & Tel. Co., 72 Ga.App. 749, 35 S.E.2d 5, it was held that, while it was improper to make a motion, in the presence of the jury, that the jury be allowed to view premises involved in the litigation, it was not harmful error where the trial court promptly excluded the jury, thereby enabling counsel to make any objection to the motion which he saw fit out of the presence of the jury. Special ground 12 shows that the jury was excluded while objections were made, and special ground 11 does not show that the jury was present when the motion for mistrial was made. "The trial judge in passing upon a motion for mistrial on account of alleged improper argument or remarks [by counsel] to the jury is vested with a broad and sound discretion, and his ruling will not be controlled by this court unless manifestly abused.' [Smith v. State, 204 Ga. 184, 188, 48 S.E.2d 860].' J. W. Starr & Sons Lmbr. Co. v. York, 89 Ga.App. 22(3), 78 S.E.2d 429, 430. In the case of Shahan v. American Tel. & Tel. Co., supra, a motion was made in the presence of the jury that the jury be allowed to visit and inspect the property involved, and this court, in dealing with such assignment of error stated [72 Ga.App. 749, 35 S.E.2d 8]: 'It appears * * * that immediately after the motion was made the court ordered the retirement of the jury, and that counsel for the plaintiff then had an opportunity to object to the motion out of the presence of the jury. It also appears that no motion for a mistrial was made by counsel for the plaintiff. Although we think it was clearly improper practice to make the motion to allow the view by the jury in their presence, the court removed the wrong as soon as possible by excluding the jury, and in the absence of a motion for a mistrial at the time this complaint shows no reversible error.' In that case the question of whether a mistrial would be demanded, if asked for, was not presented. It appears from the record in the present case that the jury, as in the Shahan case, supra, was immediately retired upon counsel for the condemnee making the motion that the jury be allowed to view the premises. In the case of National Box Co. v. Bradley, 171 Miss. 15, 154 So. 724, 157 So. 91, 94, 95 A.L.R. 1500, it was said, with reference to a request that the jury be allowed to view the premises involved in the litigation: 'When, without first having the jury...