State Highway Department v. Handley

Court of Appeals of Georgia

State Highway Department v. Handley

150 S.E.2d 316, 114 Ga. App. 124, 1966 Ga. App. LEXIS 669

CourtCourt of Appeals of Georgia

DecidedJune 27, 1966

Docket41946

StatusPublished

Cited by6 cases

This text of 150 S.E.2d 316 (State Highway Department v. Handley) 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

State Highway Department v. Handley, 150 S.E.2d 316, 114 Ga. App. 124, 1966 Ga. App. LEXIS 669 (Ga. Ct. App. 1966).

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Opinions

Felton, Chief Judge.

1. In this condemnation case the court erred in charging the jury as follows: “You will determine what amount represents a value of the property taken by the State Highway Department for which you will return a verdict, and if you find consequential damages to the remaining property, you will add whatever you may find as consequential damages to the amount you find that represents the value of the property taken by the Highway Department, and you will add whatever [125]*125you may find that the condemnee in this case has been damaged and injured, as a result of the establishment of an easement, if he has been damaged, and let your verdict be in one lump sum.” Exception to the charge .was made prior to the time the case was submitted to the jury. It is contended that the vice in the charge excepted to is that it failed to include the instruction that consequential benefits to the remaining land should be deducted from the consequential damages. The court at least one additional time charged the jury similarly to the charge excepted to. The court also -gave the correct charge during the course of his instructions. We think that the court should have sustained the exception to this charge. It was the last instruction given and could have stood out in the jury’s mind for that reason. And, it was practically identical with another similarly incorrect charge. The court had an opportunity to clarify the charge before the jury considered the case and could have impressed the jury with the correct law on the point in question. The appellant could have excepted to the other incorrect charge and it would have been a good exception. We see no reason why it could not make an election to except to the last excerpt if in its judgment the last charge to the jury would have cured the error. At any rate the court had an opportunity to clarify the charge to the jury and it is our understanding that this was the purpose of the new appellate practice law which requires an opportunity for the trial court to correct its errors in charges before cases are considered by juries. The court erred in not correcting the charge.

2. There was no issue made in the case respecting inconvenience to the condemnee or to the occupant in the dwelling located on the property involved, and the trial court did not err in refusing the condemnor’s request to charge the jury that the condemnee could not recover for mere inconvenience except insofar as inconvenience adversely affected the value of the condemnee’s remaining property. For the court to have so charged would have merely resulted in injecting into the case to the confusion of the jury an issue not made by the pleadings or the evidence.

Judgment reversed.

Bell, P. J., Jordan, Hall, Eberhardt and [126]*126Pannell, JJ., concur. Nichols, P. J., Frankum and Deen, JJ., dissent.

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Felton, Chief Judge.

1. In this condemnation case the court erred in charging the jury as follows: “You will determine what amount represents a value of the property taken by the State Highway Department for which you will return a verdict, and if you find consequential damages to the remaining property, you will add whatever you may find as consequential damages to the amount you find that represents the value of the property taken by the Highway Department, and you will add whatever [125]*125you may find that the condemnee in this case has been damaged and injured, as a result of the establishment of an easement, if he has been damaged, and let your verdict be in one lump sum.” Exception to the charge .was made prior to the time the case was submitted to the jury. It is contended that the vice in the charge excepted to is that it failed to include the instruction that consequential benefits to the remaining land should be deducted from the consequential damages. The court at least one additional time charged the jury similarly to the charge excepted to. The court also -gave the correct charge during the course of his instructions. We think that the court should have sustained the exception to this charge. It was the last instruction given and could have stood out in the jury’s mind for that reason. And, it was practically identical with another similarly incorrect charge. The court had an opportunity to clarify the charge before the jury considered the case and could have impressed the jury with the correct law on the point in question. The appellant could have excepted to the other incorrect charge and it would have been a good exception. We see no reason why it could not make an election to except to the last excerpt if in its judgment the last charge to the jury would have cured the error. At any rate the court had an opportunity to clarify the charge to the jury and it is our understanding that this was the purpose of the new appellate practice law which requires an opportunity for the trial court to correct its errors in charges before cases are considered by juries. The court erred in not correcting the charge.

2. There was no issue made in the case respecting inconvenience to the condemnee or to the occupant in the dwelling located on the property involved, and the trial court did not err in refusing the condemnor’s request to charge the jury that the condemnee could not recover for mere inconvenience except insofar as inconvenience adversely affected the value of the condemnee’s remaining property. For the court to have so charged would have merely resulted in injecting into the case to the confusion of the jury an issue not made by the pleadings or the evidence.

Judgment reversed.

Bell, P. J., Jordan, Hall, Eberhardt and [126]*126Pannell, JJ., concur. Nichols, P. J., Frankum and Deen, JJ., dissent.

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Bluebook (online)

150 S.E.2d 316, 114 Ga. App. 124, 1966 Ga. App. LEXIS 669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-highway-department-v-handley-gactapp-1966.

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