Toney v. Johns

• Decision Date: 13 March 1980
• Docket Number: No. 58684,58684
• Citation: 267 S.E.2d 298,153 Ga.App. 880
• Parties: TONEY v. JOHNS.
• Court: Georgia Court of Appeals

Page 298

267 S.E.2d 298

153 Ga.App. 880

TONEY v. JOHNS.

No. 58684.

Court of Appeals of Georgia.

Submitted Oct. 15, 1979.

Decided March 13, 1980.

Robert B. McCord, Jr., Hapeville, for appellant.

Sam Johnson, Jonesboro, for appellee.

SOGNIER, Judge.

Ms. Johns filed suit against Toney to recover two rings, or the value of such rings, allegedly taken by Toney when their relationship was terminated after living together for approximately six months. The jury returned a verdict of $3,000 for Johns, and Toney appeals. Toney contends the trial court erred in denying his motion for a new trial after the court erroneously admitted certain documentary evidence and allowed opinion testimony as to the value of the rings without a proper foundation having been laid. Appellant also alleges the court erred by failing to instruct the jury on opinion evidence and by not permitting objections to the charge. With regard to the last enumeration, the record indicates that no objections were made to the charge. It is well-settled that this court will not consider questions raised for the first time on appeal. Foster v. Continental Cas. Co., 141 Ga.App. 415, 416, 233 S.E.2d 492 (1977). We confine our review to the first two enumerations of error, both of which relate to the issue of the value of the rings.

Concerning the opinion evidence, the plaintiff testified that one of the two rings had nine diamonds totaling almost two carats and had a value of $2,000; the other ring had six or seven diamonds and a pearl, with a value of $1,000, both rings having been specially made; she stated that she liked fine jewelry, that she had been to a number of jewelry stores and was familiar with jewelry of the type she described, that both rings had been appraised and that she had seen a picture of a ring similar to hers valued at $1,800. Thereafter, she was asked the following question: "Based upon what you have seen of other rings, and based upon appraisals of other rings, and based upon value set on rings similar to yours, and based upon appraisals that you had of your rings, have you formed an opinion as to the value of your rings?" Plaintiff answered yes and thereafter expressed her opinion. Documentary evidence was introduced in conjunction with her testimony. This documentary evidence was objected to on the basis that it was hearsay.

The appellant contends that the testimony as to value was inadmissible because a proper foundation had not been laid. Code Ann. § 38-1709 provides: "Direct testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer in the article, but may testify as to value, if he has had an opportunity for forming a correct opinion." This provision has been interpreted by this court to mean that in order for a witness to give his opinion as to value, he must give his reasons for forming that opinion by showing that he had some knowledge, experience, or familiarity as to the value of the item. This is the requisite foundation. Hoard v. Wiley, 113 Ga.App. 328, 147 S.E.2d 782 (1966); Ricker v. Brancale, 113 Ga.App. 447, 148 S.E.2d 468 (1966).

The testimony of the appellee with regard to her knowledge, experience, and familiarity with jewelry was sufficient to lay the foundation for her opinion as to value. The testimony of a witness that he is familiar with the value of the item in question is sufficient foundation to allow evidence as to value. Johnson v. Rooks, 116 Ga.App. 394, 396, 157 S.E.2d 527 (1967); Globe & Rutgers Fire Ins. Co. v. Jewell-Loudermilk Co., 36 Ga.App. 538, 539, 137 S.E. 286 (1927); Wilson v. City of Bainbridge, 29 Ga.App. 692, 693, 116 S.E. 543 (1923); Canal Ins. Co. v. P & J Truck Lines, 145 Ga.App. 545, 550, 244 S.E.2d 81 (1978).

The value...