Southern Railway Co. v. Miller
Southern Railway Co. v. Miller
Opinion of the Court
Since we are deciding that the judgment should be reversed on the special grounds, we will not discuss the evidence as related to the general grounds, as the facts may be different in another trial, should another trial be held.
Special ground 1 raises the issue as to whether the court erred in admitting the testimony, over objections of counsel for the plaintiff, of the witness Charlie Grace. Since this is so1 important, we feel that we should quote all of this special ground. Special ground 1 assigns error as follows: “Because the following material evidence was illegally admitted by the court to the jury, over the objection of movant, to wit: ‘As to what was the reasonable market value of that sand at that place, I answer that what we were figuring on getting for it when it was sold would be $4 a ton, and what we were going to pay for it was relative. As to what we were going to pay for it, I answer that we had arrived at a figure with Mr. Miller that would guarantee him $100 a month for this piece of property, to get sand and put up a plant on it, or 50 cents a ton for each ton of sand, whichever was greater. We were figuring on a ten-year proposition.’ (a) Movant 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: Counsel for defendant asked the following question: What was a reasonable value of the sand? Mr. Maddox: ‘We object to that on the ground that the landowner is not permitted to show by piecemeal the value of the various elements that go to make up the full market value of the land. The only thing that is involved is the fair market value of the land. Pie can show what the nature of the land is and what various elements go to give it value, but under the law he is not permitted
We call attention to United States v. Phillips, 50 Fed. Supp. 454, which originated in Georgia. In that case Judges Under
Special ground 2 assigns error as follows: “Because the following material evidence was by the court illegally admitted to the jury and permitted to remain in the record and before the jury for consideration, over the motion of the movant to’ exclude the same. 'As to what was the reasonable market value of that sand at that place, I answer that what we were figuring on getting for it when it was sold would be $4 a ton, and what we were going to pay for it was relative. As to what we were going to pay for it, I answer that we had arrived at a figure with Mr. Miller that
“(a) Movant moved to exclude the evidence as soon as and at the time it was offered, and then and there urged before the court the following grounds of such motion to* exclude: Mr. Maddox: T move to exclude all the testimony about this conversation and about these negotiations because they didn’t culminate in a contract; there was nothing more than an opportunity or an offer for this to be done, and an offer not acted upon is not any basis for placing a value on this element of the land.’ (b) The defendant, Mrs. Maude Miller, offered the evidence sought to* be
This evidence was too speculative and uncertain to prove the actual value of the plaintiff’s land at the time of the condemnation. See Selma, Rome & Dalton R. Co. v. Keith, 53 Ga. 178, and Palmer v. Atlantic Ice & Coal Corp., 178 Ga. 405 (173 S. E. 424, 92 A. L. R. 176). In Sharpe v. United States, 191 U. S. 341, 349 (24 Sup. Ct. 114, 48 L. ed. 211) the United States Supreme Court said: “Oral and not binding offers are so easily made and refused in a mere passing conversation, and under circumstances involving no responsibility on either side, as to cast no light upon the question of value. It is frequently very difficult to show precisely the situation under which these offers were made. In our judgment they do not tend to show value, and they are unsatisfactory, easy of fabrication and even dangerous in their character as evidence upon this subject.” The defendant’s willingness to accept the offer for the sand deposit was not evidence of the value of the land. Such testimony was a self-serving declaration by the defendant and was not admissible. This special ground shows reversible error.
Special ground 3 assigns error: “Because the following material evidence was illegally admitted by the court to the jury, over the objection of movant, to wit: ‘As to the statement that I can compare it with what we manufactured in Rome on the plant, I say, I have an automatic block machine that would turn out 3200 8 by 16 by 8. That was the one we were going to move down there. As to how much that is in sand, the blocks
“(a) Movant 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: (Mr. Howe asked the witness the following question on direct examination): ‘In the course of an ordinary day’s run with this particular mill that you proposed to put at this place, what would have been the average take of sand per day, in tons?’ Mr. Maddox: ‘I object to that on the grounds I have stated, and on the further ground that it could be nothing more than conjectural, since we are talking about a business that never existed, at a time we know not when, we don’t know what the lasting power of this business would be, whether it would be a paying business over a long period of time or a short period of time, we don’t know what the market of the product would be, therefore, the quantity of sand that would be used by this nonexistent business can be nothing more than conjectural or speculative and cannot be anything upon which the jury could arrive at the value of the sand to be consumed, or the fair market value of the land itself.’ < (b) The defendant, Mrs. Maude Miller, offered the evidence objected to. (c) The court overruled the objection and admitted the evidence, (d) The evidence was material, prejudicial and harmful to movant because the evidence of the future output of the proposed concrete-block plant, and the money defendant was to receive on account thereof, was too remote, contingent and speculative to form a proper basis or element of the fair market value of the property taken and consequential damages sustained, (e) The name of the witness whose testimony is alleged to have been illegally admitted over valid obj ection is Charlie Grace. (f) Movant avers the inadmissibility of the evidence was beyond doubt.”
In Central Georgia Power Co. v. Mays, 137 Ga. 120, 124 (72 S. E. 900), the Supreme Court said: “Remote or merely speculative or possible damages are not allowed in considering . . .
Special ground 4 assigns error as follows: “Because the following evidence was illegally admitted by the court to the jury, over the objection of movant: 'As to what grading was done, I say, twenty-eight hundred and twenty some odd . . . Mr. Miller spent $2,820.’
“(a) Movant 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: Mr. Maddox: T object to any testimony concerning the cost of the grading as being irrelevant and immaterial. He can testify as to what has been done or what the nature of the land is, and if he knows what the fair market value of it is. I think he has shown that by his testimony.’ (b) The defendant, Mrs. Maude Miller, offered the testimony objected to. (c) The court overruled the objection and admitted the evidence, after statement of counsel for said defendant, as follows: Mr. Howe: T want to show consequential damages. I expect to show that we spent $2800 grading it for the purpose of having a motel. We expect to show that the dam was removed and the railroad was jammed up against it and made it valueless.’ The court: T will admit it for that purpose.’ (d) The evidence was prejudicial and harmful to the movant because it permitted the jury to consider and use, in arriving at the value of the land taken and the consequential damage sustained on the land retained, an improper element of value and damage, and an improper method of proving such value and damage, calculated to cause the jury to arrive at a higher value and consequential damage than was correct, (e) The name of the witness whose testimony is alleged to have been illegally admitted over valid objection is Howard Shealy. (f) Movant avers that the inadmissibility of the evidence was beyond doubt.”
To our minds this evidence was not admissible because it sought to value the consequential damage to the land not taken by specifying a particular amount ($2,820 for grading done by a prior owner). The record shows that the defendant subsequently purchased the property on which the grading was done for $3,300 for 40 acres. This included the 3.97 acres here involved (we
Special ground 5 assigns error as follows: “Because the following material evidence was illegally admitted by the court to the jury, over the objection of movant, to wit: T had dealings with Mr. Grace about the sand. After I found out the railroad was doing what they had done, I thought we would do something about the sand, and I thought I would lease it to Mr. Grace. He said he would lease it for ten years at $100 a month or 50 cents a ton.’
“ (a) Movant 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: Mr. Maddox: T object to that on the same ground that I did when Mr. Grace testified about the same matter, that it is not a proper element of damage to show what various items themselves are valued at, and of course this testimony leads up to that. It is the fair market value of property as a whole and not the aggregate of the separate parts. I further object to this line of testimony and that which has already been given by Mr. Miller to the negotiations with Mr. Grace on the ground that it never was consummated and there never was a contract actually made or acted upon.’ (b) The defendant, Mrs. Maude Miller, offered the evidence objected to. (c) The court overruled the objection and admitted the evidence, as follows: The court: T will let it in under the same conditions and for the same reason stated with reference to
We have dealt with this principle in dealing with the foregoing special grounds. This special ground is meritorious. In support of this contention counsel for the defendant cites the following: Code §§ 36-504, 36-505, 36-506; Young v. Harrison, 17 Ga. 30; Flemister v. Central Georgia Power Co., 140 Ga. 511 (79 S. E. 148); Hall County v. Smith, 178 Ga. 212 (172 S. E. 645); Chattahoochee Valley Ry. Co. v. Bass, 9 Ga. App. 83 (70 S. E. 683); City of Elberton v. Hobbs, 121 Ga. 749 (49 S. E. 779). We have read these citations set out and urged by counsel for the defendant as to why judgment should be affirmed. We do not think that any of these apply to the evidence in the instant case sufficiently to demand the affirmance of the judgment of the court.
In the dissenting opinion filed in this case to special ground 1, we call attention to the fact that in view of this record and the
Judgment reversed.
Concurring Opinion
concurring specially. I concur in the ruling and judgment on special ground three of the amended motion for a new trial.
I do not think that special grounds one and two are meritorious as to the objections made to the testimony in view of the statements of the judge. I do not think that the objections urged to the evidence shown in special grounds four and five are meritorious. I express no opinion as to whether other objections might have been meritorious.
Concurring Opinion
concurring specially. I agree with what is said in the dissenting opinion insofar as it relates to special ground one of the amended motion for new trial, but do not believe it applicable to special grounds two and three. It is my opinion that special grounds two and three show reversible error, and for this reason I concur in the judgment of reversal.
Dissenting Opinion
dissenting. What is said herein is directed to special ground 1 specifically, but I believe it is equally applicable to all the special grounds objecting to admission of testimony offered for the purpose of showing consequential damage to portions of the tract of land not condemned. The objection in ground 1 is to testimony relating to the market value of sand which the defendant had proposed to sell to a concrete-block
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