Moore v. State Highway Department

159 S.E.2d 428, 117 Ga. App. 15, 1967 Ga. App. LEXIS 1292
CourtCourt of Appeals of Georgia
DecidedNovember 29, 1967
Docket42802
StatusPublished
Cited by2 cases

This text of 159 S.E.2d 428 (Moore v. State Highway Department) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moore v. State Highway Department, 159 S.E.2d 428, 117 Ga. App. 15, 1967 Ga. App. LEXIS 1292 (Ga. Ct. App. 1967).

Opinion

Pannell, Judge.

The State Highway Department brought a condemnation action in rem against 0.107 of an acre of land composed of separate parcels or strips on the north and south sides of Glenwood Avenue in DeKalb County for the purpose of widening this street. Named as defendants were Mrs. Idoma J. Hicks Moore, Sinclair Refining Company, Atlanta Federal Savings & Loan Association, Forrest E. Huff, E. T. Lee, J. B. Cooley, Glenn E. Hicks, Curtis O'. Hicks, Phoenix Atlanta Construction Company, Betty Bowen, Howard Robinson, Henry G. Short, [16]*16Reginald L. Bennett, E. E. Michael, and the City of Atlanta. Mrs. Moore answered that she was the sole owner of the two tracts from which the condemned parcels were being taken subject to loans and leases thereon. Pitch ’N Putt, Inc., answered claiming to be the lessee of the south tract. The assessors awarded to Mrs. Moore “and unrepresented condemnees” $44,000 and Pitch 'N Putt, Inc., Glenn Hicks, Jr., and Curtis O'. Hicks were awarded $62,000. The award of the assessors was appealed by the Highway Department to a jury in the superior court. Both Mrs. Moore and Pitch ’N Putt, Inc., made motions for separate trials on the ground that to try the two cases together as to the damage to the various parties would be confusing to the jury and would deny them due process of law. These motions were overruled. The trial was had and concerned only the damages to Mrs. Moore as the owner in fee of both parcels and to Pitch ’N Putt, Inc., as the lessee of one of the parcels. The jury found a verdict for Mrs. Moore of $12,026 for the land taken and $13,100 consequential damages. The verdict in favor of Pitch ’N Putt, Inc., was for $2,400 for consequential damages. Separate motions for new trial by Mrs. Moore and Pitch ’N Putt, Inc., were overruled and they filed a joint appeal to this court. See Section 15 of the Appellate Practice Act (Ga. L. 1965, pp. 18, 30; Code Ann. § 6-811).

1. Where a condemnation suit involves two parcels of land separated by a street, both of which parcels are owned by one person but one of the parcels is leased to another party, and separate motions are made by both parties for separate trials as to each piece of property, and as to the one leased a separate trial as to the damage to the lessor and as to the damage to the lessee, and the trial judge overruled both motions, we cannot say that there was an abuse of discretion, the motions being predicated upon the ground that the trial of the issues would be confusing to the jury under the circumstances. The condemnation statute under which the proceeding was brought contemplates the joint trial and determination of the damages to the respective tracts and parties in cases such as this. See Ga. L-. 1961, p. 517, et seq. (Code Ann. Ch. 36-13). While there is no language in the statute that prevents the separation [17]*17of the various tracts and parties for the purpose of trial, it does not require that this be done. The only authority relied on by appellant is Gwathmey v. United States, 215 F2d 148 (5th Cir.), which case involved 236 tracts or parcels and those represented by 12 different law firms. There is an obvious difference between that case and the one now before the court.

2. Where a witness testifying as to value in a condemnation case begins his testimony by stating that his evidence as to value relates to the time of taking, giving a specific date, which time was stipulated between the parties, and on cross examination it appears that his chief examination of the property had been made over three months later when his appraisal was actually made, such disclosure does not prevent his testimony from having probative value as of the date of the taking where the witness testifies as to his familiarity with the particular property as of the date of taking. The refusal of the trial judge to exclude this witness’s entire testimony on the ground that his opinion as to value did not relate to the time of taking was not error.

Where the same witness testifies that he was familiar with the premises prior to making his appraisal but did not go into the buildings on the premises until making his appraisal as to value and as to damages, and where the physical taking involved a portion of land only, adjacent to a public road, upon which portion neither the buildings nor any part of the buildings stood, and where the witness testified that he would not have noticed any changes on the inside of the buildings between the time of taking and the time of his appraisal, but would have noticed any on the outside, and that there were no changes on the outside although there might have been minor changes on the inside, and the evidence does not disclose any changes were made, such testimony is not without probative value. The decision in Ga. Power Co. v. Livingston, 103 Ga. App. 512 (2) (119 SE2d 802) is not controlling here. In the case cited the witness had never been inside the house involved which was being competely taken by the condemnation, whereas in the present case it appears only that the witness had not gone in [18]*18the buildings on the date of the taking of a portion of the parking area adjacent to the buildings.

3. Enumeration of error 3 of appellant Moore that “the court erred in admitting certain testimony of witness Ansel W. Paulk over objection of appellant, relating to the method whereby said witness determined consequential damages to the property not taken,” is not supported by the record. No such objection was made. That portion of the transcript quoted by appellant Moore in her brief in arguing this enumeration does not show any such objection to the testimony of the witness nor any ruling by the court on such an objection.

4. While, as to the objector, the erroneous admission of evidence is harmless where similar evidence has been admitted without objection, such a rule cannot be converted into a rule that where evidence is admitted without objection it shall be erroneous to rule out similar evidence upon objection made thereto. Merely because the admission of the evidence, under the circumstances, would have been harmless, if error, does not make error the exclusion of such evidence under the same circumstances. The enumeration of error, that for this reason it was error to exclude parol evidence relating to the contents of the written lease upon objection of appellee, is without merit.

5. Whether or not the evidence would have authorized a finding of no damages as to Pitch ’N Putt, Inc., the charge to the jury as to the form of their verdict does not affect the measure of damages, and if error, was harmless for the reason that the jury did find some amount as damages to the leasehold of Pitch ’N Putt, Inc. Jackson v. Seaboard A. L. R., 140 Ga. 277, 283 (6) (78 SE 1059); Stynchcombe v. Gooding Amusement Co., 110 Ga. App. 864, 867 (4) (140 SE2d 232).

6. Pitch ’N Putt, Inc., the sole stockholders of which were Mrs. Moore, her two sons, Glenn E. Hicks and Curtis 0. Hicks and the wife of one of them, contends that the jury’s award of $2,400 consequential damages was unauthorized by the evidence and that an award of $7,000 was the minimum amount the jury was authorized to find under the evidence. Pitch ’N Putt, Inc., had a lease, conveying only a usufruct for a period of ten years with the privilege of renewal for ten additional years [19]*19for the operation of a retail beer store and a grocery store which had approximately 6 years and 4 months to run on the initial 10 years at the time of the taking.

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Related

City of Atlanta v. West
180 S.E.2d 277 (Court of Appeals of Georgia, 1971)
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160 S.E.2d 204 (Court of Appeals of Georgia, 1968)

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Bluebook (online)
159 S.E.2d 428, 117 Ga. App. 15, 1967 Ga. App. LEXIS 1292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-state-highway-department-gactapp-1967.