Opinion
40172.
DECIDED SEPTEMBER 18, 1963.
Condemnation of land. Catoosa Superior Court. Before Judge Fariss.
John E. Wiggins, Pittman Kinney, R. Carter Pittman, for plaintiffs in error.
Joe B. Tucker, Eugene Cook, Attorney General, Carter Goode, Richard L. Chambers, Assistant Attorneys General, contra.
The jury should not be left to decide between conflicting propositions contained in the court's charge, and where in instructing the jury the judge gives them an incorrect instruction it is not sufficient that he thereafter, without expressly withdrawing the incorrect charge, merely charges them correctly on the same proposition. Savannah Elec. Co. v. McClelland, 128 Ga. 87 (2) ( 57 S.E. 91); Citizens c. Nat. Bank v. Kontz, 185 Ga. 131, 146 ( 194 S.E. 536). A charge which thus contains two distinct statements, conflicting one with the other, is calculated to leave the jury in such a confused condition of mind that they cannot render an intelligent verdict. Tietjen v. Meldrim, 169 Ga. 678 (2), 696 ( 151 S.E. 349); Plaspohl v. Atlantic C. L. R. Co., 87 Ga. App. 506, 508 (2) ( 74 S.E.2d 491) Such a charge requires the grant of a new trial. Even if it be said, however, that the grant of a new trial is not demanded in such circumstances, nevertheless, where the trial judge grants a new trial expressly on a ground of the motion complaining of such a charge, his judgment in this regard ought to be affirmed unless the record clearly, unmistakably, and unequivocally demonstrates that the error contained in the charge was harmless. Rice v. Matthews, 104 Ga. App. 593 ( 122 S.E.2d 175). This court cannot say that under the facts of this case the charge complained of in ground 4 of the motion for a new trial did not influence the jury to render a verdict for the condemnee in an amount larger than it would otherwise have rendered, and that it was therefore not harmful to the movant. Accordingly, the grant of a new trial on this ground will not be disturbed.
Judgment affirmed. Nichols, P. J., and Jordan, J., concur.
DECIDED SEPTEMBER 18, 1963.
The ground of the motion on which the judge granted a new trial complained of the following charge as being argumentative, confusing, and misleading to the jury and erroneous and prejudicial because there were no contentions by pleadings or evidence that the condemnee was entitled to consequential damages: "Now, in this case, Gentlemen, there appears to be no claim of any decrease in the market value of the property not taken, unless it could be said that the access rights to that Project I-75 Superhighway could be considered consequential damages; if you want to consider that in that respect, you might do so, to the extent of taking into consideration whatever that limitation of access rights or the condemnation of the entire access, that is, ingress to and egress from that Project I-75; if you want to consider that as consequential damages, you might do so. However, other than that, there is no claim by the condemnee in this case that there are consequential damages to the remainder of the property. The condemnee contends that he is entitled to what he contends is the fair, just compensation for the property actually taken; and on the other hand the Highway Department does not contend in this case that there are any consequential benefits to the remainder of the land not taken. The reason that I am saying that to this jury is the fact that in most condemnation proceedings there do appear claims of consequential benefits and claims of consequential damages, and I simply stated that; I hope that having stated it, doesn't confuse the jury or anything of the sort. My purpose in referring to it was to take that out of it, so that you would fully understand that the question that you are to determine in this case is not consequential benefits or consequential damages, that is, to the remainder of the land not taken; but the fair market value of the property actually taken in the case." The verdict awarding damages for the taking of 4.827 acres of land for the purpose of constructing a limited access highway was in the amount of $65,000.