Opinion
41284.
ARGUED MAY 3, 1965.
DECIDED JUNE 18, 1965. REHEARING DENIED JULY 7, 1965.
Condemnation of land. Barrow Superior Court. Before Judge Dunahoo.
James W. Parris, Paul T. Collier, for plaintiff in error.
T. Penn McWhorter, contra.
1. (a) The trial judge failed to specify the grounds of the second motion for a new trial as amended on which he based his grant of the motion. Prior to 1959, this court held that there was no provision of law under which the trial judge could be compelled to so specify. Bass v. Pharr, 98 Ga. App. 125 ( 105 S.E.2d 236). Code § 6-1608 was amended by Ga. L. 1959, pp. 353, 354, so as to require, in part, that ". . . the trial judge shall state in all cases the ground or grounds upon which said new trial is granted." Reference to the caption and the first provision of this section indicates that this requirement is applicable to only the first grant of a new trial. Since the General Assembly is presumed to have been aware at the time it amended the above section that there was no existing statutory provision requiring the stating of grounds in the granting of any motion for a new trial, its requirement as to the first grant would seem to indicate its intent to limit the requirement to the first grant. Extension of such requirement to second and subsequent grants, therefore, must be done by legislative action, if at all.
(b) The second grant of a new trial is not subject to the stringent protection against interference by the appellate courts as is the first; therefore the general as well as the special grounds should be considered. Schaufele v. Central of Ga. R. Co., 6 Ga. App. 660, 662 (2) ( 65 S.E. 708). Since it is impossible to determine from the court's order in the case at bar upon which grounds the motion was granted, the only apparent way to rule justly on the appeal is to assume that the motion was granted on all the grounds, both general and special.
(c) The grant of a second new trial on the general grounds is an abuse of discretion unless the verdict is manifestly wrong or supported by evidence that is weak and unsatisfactory or unless the great preponderance of evidence is on the side of the losing party. Simpson v. Brand, 108 Ga. App. 393, 394 (1) ( 133 S.E.2d 393); Mills v. State, 188 Ga. 616 ( 4 S.E.2d 453). However, since the judgment of the court is granting the motion for a new trial is hereinafter affirmed as to some of the special grounds, resulting in a new trial, the general grounds need not be considered.
2. Grounds 1, 2, 3, and 6 of the amended motion which was granted by the trial judge complained that the charge of the court was confusing and erroneous in its statement of the measure of damages. "The action of the trial judge in granting a second new trial to the defendant, not on account of the verdict rendered but on account of error committed by himself, will not be disturbed, because the charge of the court was in some respects erroneous and in other respects confusing; and, since the verdict, though authorized, was not demanded, the rights of defendant may have been thus prejudiced." Hughes v. Dannenberg Co., 25 Ga. App. 699 ( 104 S.E. 453). The charge was confusing insofar as it was capable of being construed to give other than the sole applicable measure of damages in this case, i.e., the difference in the fair market values of the land taken for the easement before and after the taking. See Georgia Power Co. v. Pittman, 92 Ga. App. 673 ( 89 S.E.2d 577); Georgia Power Co. v. Livingston, 103, Ga. App. 512 (4) (119 S.E.2d 802). The court did not err in granting a new trial on special grounds 1, 2, 3 and 6.
3. Special grounds 4 and 5 of the amended motion for a new trial which was granted by the trial judge complained of the submission to the jury of the question whether the property involved had value for purposes other than agricultural. Assuming that there was sufficient evidence to authorize such a charge it was weak and as the case is to be tried again it is not necessary to decide whether the charge was error or sufficiently harmful to require a new trial.
4. Ground 7 of the amended motion granted by the trial judge was meritorious. The court erred in admitting in evidence over objection testimony of the condemnee as to the amount of consequential damages, based upon his prospective expenditures in connection with his plans for the property, his conclusion as to what the property was worth to him, prior offers for a price certain and the amount of money he had invested in the property, none of which was relevant to the issue of the fair market value before and after the taking.
5. The court erred in excluding the testimony of witness Hutchins as to the value of the easement and allowing his testimony regarding consequential damages, where the similar bases of the witness's two estimates were factors other than the correct measure of damages, i.e., the difference in market values. This error, combined with any confusion resulting from the charge, as discussed in Division 2 hereinabove, was sufficient to authorize the grant of a new trial. Ground 8 of the amended motion was meritorious.
6. The admission in evidence of testimony of assessors who had appraised the property sought to be condemned was not harmful error where the court clearly instructed the jury to the effect that they were not concerned with what the assessors did, and that the amount of the award by the assessors was not a matter for their consideration, but that they were to determine what damages, if any, the landowner sustained from the proof submitted and the law as given in charge by the court. Lee v. State Hwy. Dept., 57 Ga. App. 398 (2) ( 195 S.E. 462). Ground 9 of the amended motion granted by the trial judge was therefore not meritorious.
The court did not err in granting a new trial on special grounds 1, 2, 3, 6, 7 and 8 of the amended motion.
Judgment affirmed. Jordan and Pannell, JJ., concur. Pannell, J., was designated to preside in place of Russell, J., who was disqualified.
ARGUED MAY 3, 1965 — DECIDED JUNE 18, 1965 — REHEARING DENIED JULY 7, 1965.
The special grounds of the amended motion for a new trial on which the court properly granted the motion are as follows: "Ground one — Because the court erred in charging the jury as follows: `I charge you further, Gentlemen, that just and adequate compensation to be paid to owner of this property by the condemnor, includes two elements to be paid the owner, if you so find.' And whereas the court also gave the following charge: `Now the value of the easement for the right of way would be the difference in fair market value of the land within the easement, before the taking, and the value of the land within the easement, after the taking of the easement for right of way purposes heretofore given.' The court later also charged: `Now applying these rules, Gentlemen, you determine first, the actual, fair and reasonable value of the land taken for the purpose of an easement, that is, four and one-tenth (4.1) acres, or whatever it is as shown by the evidence.' Condemnor contends that the charges above quoted were erroneous for the reason that they authorized the jury to award as actual damages the full value of the strip of land containing four and eleven one-hundredths (4.11) acres over which the condemnor was acquiring an easement only, for the purpose of erecting and maintaining a power line, the acquiring of such easement leaving to the property owner the right to use said land for any purpose not inconsistent with its use for said easement purposes. Condemnor contends that the evidence showed that there was only one structure located on condemnee's land and that there were no buildings located thereon and that the measure of actual damages for the acquiring of an easement merely for eliminating trees, the erection of one tower, and leaving to the property owner the use of the land for agricultural and other purposes, did not justify finding the condemnee was entitled to the full market value of the strip of land covered by the easement to the extent that the actual strip of land was being taken in fee simple as this charge inferred to the jury. Condemnor contends further that the charge was erroneous and confusing in that it confused the jury as to the statement of the measure of damages wherein the court used the terms `fair market value,' `fair and reasonable value,' `just and adequate compensation.' Condemnor contends that the use of such terms was confusing and erroneous and misleading to the jury in that they were unable to determine whether or not to use actual value, just and adequate compensation, fair and reasonable value or market value in assessing damages for easement purposes only. Condemnor contends that such erroneous charge was prejudicial, misleading to the jury and ambiguous and that although the court elsewhere stated that the condemnee's property was being obtained for an easement, such conflicting charges as quoted above left the jury in a state of confusion as to what was actually being condemned and the interest being acquired. Ground two — Because the court erred in failing to charge that there were no unusual circumstances in this case which make the criteria of market value inapplicable and that the market value is the basis of determination of the value of the land taken for the easement and the damage to the land not taken. Condemnor avers that the failure to charge the proper basis for market value for determination of the value of the land taken for the easement and the damage to the land not taken was demanded by the evidence because there were no unusual circumstances showing that this general agricultural land was no [sic] unique or that any operations carried on there made the market value the improper measure of damages to be assessed in said case. Ground three — The trial judge, in his charge to the jury in said case, stated the following: `One is the direct or actual damage, that is, damages that will result in the taking of the interest in the land. . . The Georgia Power Company will pay Mr. Sims for this easement across that land its fair and reasonable value. And you determine what the fair and reasonable value is, from the evidence as submitted to you during the trial of this case. The burden of proof, in this case, is upon the condemnor, that is the Georgia Power Company, to establish by a preponderance of the evidence, what amount of money constitutes just and adequate compensation. Now the value of the easement for the right of way would be the difference in fair market value of the land within the easement, before the taking, and the value of the land within the easement after the taking of the easement for right of way purposes heretofore given.' The court later also charged: `Now applying these rules, Gentlemen, you determine first, the actual, fair and reasonable value of the land taken for the purpose of an easement, that is, four and one-tenth (4.1) acres, or whatever it is as shown by the evidence.' Condemnor contends that the that the charges above quoted were erroneous for the reason that they confused the jury and they were unable from the judge's charge to determine whether to use the measure of market value or fair value or reasonable value or value to the owner. Such conflicting charges as quoted above left the jury in a state of confusion as to what criteria should be utilized in assessing damages for the land actually condemned. Ground six — Condemnor shows that the failure of the trial judge to give a fuller and fairer charge on the question of fair market value and the elimination of all kinds of values, such as buildings, chicken operations, trees for shade for cattle on the right of way, and grading for building and all other special damages should have been given in that all of said elements were injected into the trial of the case and served only to confuse the jury. It is erroneous because of the various attempts by condemnee's attorney, James W. Paris, and his witness, James D. Sims, John B. O'Shields, Dorsey Hutchins and E. L. McLocklin, to inject all types of damages into the case particularly with reference to depreciation of buildings and to speculated costs in aeroplane dusting. Condemnor avers that the failure to so charge was erroneous for the reasons assigned hereinabove. Ground seven — Because the following material evidence was illegally admitted by the court to the jury over the objection of condemnor, to-wit: `I figured it is still worth $100.00 an acre, it would then be worth $1,230.00 and the consequential damages to the land adjoining the right of way would be $3,500.00. I got the $3,500.00 because it's going to cost me a lot of money to do what I planned to do with the chickens. I can't tell you how it changed in market value but the consequential damages is the difference between the fair market value of the land before and after the taking on both sides of the right of way but I don't have any figures and the market value means it is what it is worth. In other words, it would be what it is worth to me and what I have been offered for it. That's how I determined the fair market value and that's what I've got in it. It's what I think it would bring on the market and what I've got in it and what I think it's worth.' Condemnor objected to the evidence as soon as and at the time it was offered, and then and there urged before the court the following grounds of objection: `I move to strike the witness' testimony in regard to the consequential damages or that matter as to the values of, or any of the values that he placed on value of the easement, land under the right of way, or that of consequential damages, because the witness testified that the values he was giving was not the fair market value, but it was rather what he though (t) it was worth and what it would cost to alter plans that he might have. And this of course, has no probative value and is not a proper basis for testifying as to damages; and since it has not probative value, I move that it be stricken from the record. My objection is — that the value as to consequential damages testified to — by the witness, is a conclusion. It also shows that he was not basing it on the market value but basing it on values — facts which are not proper elements of damages, that is, what he may have been offered for it or what expense he might be put to in altering some plans or in building something additional on the property, and these are not proper elements of damage and should not be any kind of damages, much less consequential damages; and therefore, I move to strike it as being a conclusion and not a proper measure of damage; no facts testified to which would render good competent evidence from which the jury could base any verdict.' The opposing party to condemnor offered the evidence objected to and the court overruled the objection and motion to strike and admitted the evidence. The evidence was material, prejudicial and hurtful to the movant condemnor, for the reason that it allowed into evidence an estimate of consequential damages basing it on values and facts which were not the proper elements of damage and should not be allowed as any kind of damages much less consequential damages thereby allowing the jury to understand that they could assess damage and consequential damage based on what the owner thought his property was worth and thereby allowed the jury to utilize a measure of damage other than market value which is the sole criteria under all evidence adduced in this case. There was no evidence to justify the allowance of any of such testimony objected to into the record. The witness testifying was James D. Sims and was offered as a witness for the condemnee, in fact, he, himself, being the condemnee. The court overruled the objection and denied the motion to strike and condemnor shows the inadmissibility of this evidence and the overruling of the objections made led to confusion on the part of the jury. Ground eight — Because the court erred in ruling on the testimony of a witness for condemnee, namely Dorsey Hutchins, to exclude the testimony of said witness wherein the court in part sustained the motion by condemnor and in part overruled the motion and committed error in that it excluded testimony of witness Hutchins as to the value of the easement and overruled the motion and allowed the testimony of the witness Hutchins as to consequential damages when the basis of the testimony as to the measure of the value of the easement and the measure of the consequential damages were based on similar grounds, neither of which was market value, resulted in confusion to the jury. The basis for witness Hutchins values as to both the value of the easement and consequential damages was substantially as follows: `Just taking the whole farm as a whole it would be about $350.00 an acre. The farm as a whole is worth $350.00 but I didn't figure how much it would be just under the easement. The only way I can base it is what my place is worth to me and the only way I had to base this is of what I figured it had damaged me and that is the way I based my consequential damages and had a lot to do with it but the fact of his chicken houses being built would have hurt him more possibly than it would hurt me if you wanted to get technical about it. The consequential damages that I mentioned on what I thought he would have to spend out there in order to build some more chicken houses would be on the limited use of it and that's what I based my consequential damages on was largely on that, I used that and the resale value of his farm, hazards to children, it would be a thousand different reasons why he wouldn't want it back there. Those are some of my reasons. I didn't sit down and figure them out. I just figured on a broad picture all the hazards and so forth that he would have. The shade trees in the right of way area was a part of the consequential damage. It was a minor item but it could have been one of the items I considered.' Condemnor objected to the evidence as soon as possible and urged before the court that the testimony of witness Hutchins be excluded as to consequential damages and the value of the easement on the grounds that they were conclusions and the items mentioned were more in the nature of something personal and speculative and remote and were not based upon proper measure which is the market value of the property taken prior to the taking and the remainder not taken and the market value of it after the taking. The court in rendering its ruling stated: `As to the testimony of witness, Mr. Hutchins, as to the evaluation of the easement, the court will strike that testimony from the consideration of the jury. As to the motion of counsel for the plaintiff, for condemnor, as to the other testimony of Mr. Hutchins and the other witness, which have been given, the court overrules the motion of counsel for the condemnor.' The objection by condemnor was urged upon the court as soon as it was offered or as soon as it was possible to do so and shows that this testimony was given by the witness testifying and offered as a witness for condemnee, the witness by name being Dorsey Hutchins. The court in its ruling overruled the objection and denied the motion to strike and exclude. Condemnor shows the inadmissibility of the evidence was beyond doubt. The evidence was material, prejudicial and hurtful to the condemnor for the reason that it was confusing and led the jury to believe they could base consequential damages upon matters which were not plain and appreciable and the court was inconsistent in its ruling in that it struck from consideration without stating to the jury what evaluation Mr. Hutchins has made as to the value of the easement but allowed his testimony as to consequential damages to remain in when by the above quoted evidence it is shown that both his evaluation of the easement and evaluation of consequential damages were not separated and were based upon the same improper measures. Condemnor further states that the above quoted testimony validly objected to and the ruling by the court was not full and fair in order to rid the jury of its confusion as to what testimony as to the values they could validly consider nor was it clear to them as to the proper basis for arriving at consequential damages or the value of the easement and that the instructions given and those subsequently given in the charge are not sufficient to erraticate [sic] the confusion and hurt of the condemnor in the minds of the jury."