Opinion
39657.
DECIDED SEPTEMBER 18, 1962. REHEARING DENIED OCTOBER 3, 1962.
Condemnation of land. Monroe Superior Court. Before Judge Brown.
Eugene Cook, Attorney General, Carter Goode, E. J. Summerour, Assistant Attorneys General, Phillip Benson Ham, for plaintiff in error.
George L. Jackson, contra.
1. A verbal inaccuracy in the charge resulting from a "slip of the tongue" was not such as to mislead the jury, especially since the correct wording was used in giving the same rule in an earlier part of the charge.
2. An expert witness' testimony, estimating the value of the remainder of the condemnee's land, which estimate was partially based on consideration of consequential benefits not estimated in money value, was acquiesced in by both parties. This testimony authorized a deduction for consequential benefits. A charge authorizing the jury to make a second deduction for unproved consequential benefits was error.
DECIDED SEPTEMBER 18, 1962 — REHEARING DENIED OCTOBER 3, 1962.
The State Highway Department of Georgia filed condemnation proceedings against a certain tract of land owned by L. K. Grant on which The Farmers Bank had a lien. After the award of the board of assessors in the amount of $3,250 was made the judgment of the superior court both parties appealed to a jury where the issue thus made was tried. The jury returned a lump sum verdict for $3,875 "for land and consequential damages" for the condemnees, who filed their motion for new trial on the usual general grounds, which motion they later amended so as to assign error on the charge. The trial court granted the condemnees' motion for new trial as amended on the special grounds and it is to this judgment that the condemnor now excepts.
1. Special ground 2 of the amended motion for new trial complains of the following excerpt from the charge to the jury: "The general rule, Gentlemen, is where property is taken for public purposes the measure of damages is the difference between the market value immediately before and after the damages; that applies to the consequential damages, if any, are involved in this case." (Emphasis supplied). Two paragraphs prior to this excerpt, the court had correctly charged this same proposition, using the word taking, rather than damages, but he prefaced his reading of the excerpt complained of by saying, "The court read this rule at the wrong place a moment ago, Gentlemen, but I will re-read it and ask you to disregard it as to the form of position."
It is apparent that the court intended to use the word "taking," rather than the word "damages." While the word used was not appropriate, we think that the jury could not have been misled by this obvious verbal inaccuracy resulting from a "slip of the tongue," especially since the charge was correctly given almost immediately before, and since the court instructed the jury that his statement of the rule had been erroneous only as to its timing in the charge, not as to its content. See in this regard: Walraven v. Walraven, 76 Ga. App. 713, 719 (4) ( 47 S.E.2d 148); Ray v. State, 82 Ga. App. 550, 552 ( 61 S.E.2d 779); Limbert v. Bishop, 96 Ga. App. 652, 656 (6) ( 101 S.E.2d 148). The error complained of in the charge being harmless, this special ground is without merit.
2. Special grounds 3 and 4 complain that the court erred in charging the jury on consequential benefits. The only evidence as to consequential benefits included in the record is the testimony of an expert witness to the effect that the building of the highway had increased the market value of the land and that his estimate of the value of the remainder of the land after the condemnation was arrived at partially by consideration of the consequential benefits by reason of the highway. Under the decision of this court in Andrus v. State Highway Dept., 93 Ga. App. 827, 829 ( 93 S.E.2d 174), affirmed, 212 Ga. 737 ( 95 S.E.2d 781), there must be specific evidence as to the consequential benefits from which the jury could reasonably estimate the amount of improvement before they could deduct it from the consequential damages. The case of Smith v. State Highway Dept., 105 Ga. App. 245 ( 124 S.E.2d 305), following the Andrus case, supra, held that while two witnesses for the condemnor had testified that the condemnee's remaining property would be benefited by the construction of the expressway on that portion of the condemnee's property taken, neither of these witnesses had testified specifically as to the amount of enhancement in value or even the percentage of increase in the value of the property and the testimony was therefore insufficient to authorize a charge on consequential benefits.
The charge was harmful in this case because the expert witness, with the acquiescence of both parties, estimated the consequential damages to the property after deducting in his mental computation the consequential benefits without stating to the jury his separate estimates as to the amounts fixed by him as consequential damages and benefits. The witness was doing what the jury was supposed to do. So, in authorizing the jury to deduct consequential benefits from the amount found by them as consequential damages, the court authorized a double deduction for consequential benefits when there was no evidence whatsoever as to any specific amount of consequential benefits.
Special grounds 3 and 4 being meritorious, the court did not err in its judgment granting the motion for new trial.
Judgment affirmed. Bell and Hall, JJ., concur.