Opinion
39480.
DECIDED OCTOBER 1, 1962.
Condemnation of land. Douglas Superior Court. Before Judge Foster.
Eugene Cook, Attorney General, Carter Goode, Assistant Attorney General, John T. Perren, Deputy Assistant Attorney General, Eugene B. Brown, for plaintiff in error.
Robert J. Noland, contra.
1. Both written evidence and oral testimony of the same nature having been introduced subsequently without objection, the overruling of previous objections to similar testimony does not constitute reversible error.
2. Since the failure to object to subsequently offered evidence of the same nature renders harmless an erroneous ruling as to movant's earlier objection to improper testimony, a special ground of a motion for new trial contending that repeated emphasis of such evidence demands a new trial is without merit.
DECIDED OCTOBER 1, 1962.
This is a condemnation proceeding. The State Highway Department, hereinafter referred to as "condemnor", brought its action against numerous named defendants and 7.025 acres of land owned by them in Douglas County, Ga. Assessors were appointed who filed their award from which there was an appeal to the superior court. In the course of the trial, the condemnor called several witnesses to give evidence as to the value of the property condemned. C. L. Banks, condemnor's witness at the trial, was shown an option signed by Dr. Julia M. Sutton for land she sold to the State Highway Department. He testified the land was "sorter like" the condemnees' land and "there would not be too much difference in the way they were situated."
B. S. Trimble, for the condemnor, testified, that he must have traversed the property belonging to Dr. Sutton in the same land lot as that belonging to the condemnees; that hers and the condemnees' property are in the same area; that he was familiar with the 7.025 acres of land in the option dated July 23, 1960, signed by Dr. Julia M. Sutton which agreed to sell the condemnor that land for $10,065.45; that such agreement would be the agreed value on that piece of property. On redirect examination, he testified further regarding the examination of the Sutton property and upon his third appearance on the stand for the condemnor, he testified concerning the appraisal he made of the Sutton property and made a detailed comparison of it with the condemnees' property.
Condemnor also called Dr. Julia M. Sutton, owner of the property on which she gave on option, who testified that she signed it freely and voluntarily, and she felt she received adequate compensation for the land.
The jury returned a verdict in favor of the condemnees. Condemnor moved for new trial. The general grounds of the motion for new trial were abandoned. By amendment two special grounds to the motion were added. Special ground 1 objected to the illegal admission of certain evidence over the condemnor's objection and motion to strike evidence of C. L. Banks as follows: "Q. I show you an option signed by Julia M. Sutton, dated July 23, 1955 [sic] for $10,055.45 [sic] for the sale of 7.027 [sic] acres and ask you if that is similarly situated as this?" Condemnor's counsel then objected, as follows: "I object to this testimony about the Julia M. Sutton property until it is shown it is exactly similar land." This objection was overruled, whereupon condemnor's counsel made a further objection on the ground that it was not shown there was any voluntary sale without compulsion. This was likewise overruled.
B. S. Trimble, a witness for the condemnor, was asked the following question on cross-examination relating to the Sutton property: "Q. If the State Highway Department paid her $10,065.45 that would be the market value of the 7 acres of land?" Condemnor's counsel objected on the ground that "it has not been shown that the sale was voluntary without any degree of compulsion." This objection was sustained.
Without objection from the condemnor, there was further testimony by this witness concerning the option and the Sutton property, numerous questions relating to these items being asked of this witness and Dr. Sutton. Upon re-examination she was asked: "In other words, you took less than you thought you should, in order to avoid trouble and hiring a lawyer, didn't you? A. Yes." At this time the condemnor's counsel moved that all the evidence having to do with any amount paid by the State Highway Department to Dr. Sutton for the land through which the highway passed be stricken from the record, on the ground the transaction was not free from compulsion.
Condemnor further moved that the court declare a mistrial on the ground that such evidence had been introduced, emphasized and re-emphasized in the presence of the jury; that it was prejudicial and harmful to the condemnor; that it could not be taken from the minds of the jury which it tended to inflame and allowed into evidence a standard by which they might weigh and consider the measure of damages to which the condemnees might be entitled. This motion was overruled. The jury was instructed that the evidence concerning the option given by Dr. Sutton to the Highway Department was admitted for their consideration, for them to determine whether the sale of the land by her to the Highway Department was a sale under compulsion, or a voluntary sale; that if the jury found it was made under compulsion, they would not consider it in arriving at the verdict, but would consider it in so doing if it was freely and voluntarily made, as a circumstance to illustrate the value of the land in the condemnation proceedings against the present condemnees. The refusal of the trial court to strike the evidence of the sale from the record was assigned as the first special ground of the motion for new trial, charging that this sale was involuntary, material, prejudicial, and harmful to the condemnor.
Special ground 2 contends that the refusal of the court to declare a mistrial because of the repeated references to the sale of the Sutton property and the price paid for it was prejudicial, harmful and such refusal of the court was an abuse of its discretion and, therefore, required the granting of a new trial.
The trial court overruled the condemnor's amended motion for new trial to which ruling the condemnor excepted.
The general grounds of the motion for new trial were abandoned.
1. The first special ground of the motion for new trial urged that the trial court erred in illegally admitting, and refusing to strike, evidence as to the option signed by Dr. Julia Sutton for the sale of her property to the plaintiff. The first objection of condemnor's counsel to this evidence was that it was not admissible until it was shown it was exactly similar land. The trial court overruled this objection, whereupon condemnor's counsel further objected on the ground it was not shown that the sale was voluntary and without compulsion. The latter objection was subsequently made to a further question of another witness concerning the sale of this land. This objection was sustained by the court which ruled that the objection was good until it was shown that Dr. Sutton sold voluntarily and without any degree of compulsion.
Following this, there were further question asked and answers given relating to the same option and sale of the land of Dr. Sutton to which no objections were interposed. The option itself was admitted into evidence without objection.
The first assignment of error is without merit for the reason that, after the evidence objected to, other evidence of the same nature was introduced without objection. Where this occurs, it is well settled that the previous and erroneous admission of the evidence over objection does not constitute reversible error as the detrimental nature of the erroneous ruling is in effect rendered harmless by the later admission of similar evidence without objection. Mutual Life Ins. Co. v. Burson, 50 Ga. App. 859, 861 (10) ( 179 S.E. 390); Sechler v. State, 90 Ga. App. 700, 705, 706 ( 83 S.E.2d 847).
2. Special ground 2 contends that the court erred in overruling the motion for mistrial made by plaintiff after the court improperly admitted evidence to prove the price the condemnor had paid under agreement with Dr. Sutton for land for highway purposes. The assignment of error maintains that it was impossible for the court to eradicate such evidence from the minds of the jury by the instructions the court gave them, and the evidence complained of authorized and allowed the jury to consider an illegal standard by which they could determine the measure of damages to which the condemnees were entitled.
That such evidence is incompetent is clear. The reason for the rule of inadmissibility is that in condemnation proceedings both condemnor and the condemnee are under compulsion, one to acquire, the other to give up, the property, and even though they agree upon some price, the necessities of the buyer and seller are such that the sale cannot be found to be voluntary. We consider this to be the case even though the seller testified that the sale was voluntary, that she received a fair price, and she was satisfied. Georgia Power Co. v. Brooks, 207 Ga. 406 (2), 410 ( 62 S.E.2d 183). Here, after the motion for a mistrial was made, other evidence of the same nature and import was admitted without objection. It follows, as held in Division 1, that the failure to object to subsequently offered evidence of the same nature renders ineffective the plaintiff's objection to the improper evidence. This is true both where the refusal of the trial court to grant a motion for a mistrial based on such error is assigned as the ground of a motion for a new trial or where the repeated emphasis and re-emphasis of such evidence is made the ground for a motion for a new trial. Hotel Dempsey Co. v. Miller, 81 Ga. App. 233 (3) ( 58 S.E.2d 475). The evidence being properly in the record, there is no error upon which the motion for new trial can be founded.
The trial court properly overruled the motion for new trial on all grounds.
Judgment affirmed. All the Judges concur, except Felton, C. J., Jordan and Russell, JJ., who dissent.
In my opinion the statement of the case by the majority does not clearly show the issue involved. The question, as I see it, is whether, after the court refused to rule out the illegal evidence, evidence of the same nature was introduced which was sufficient, together with other legal evidence, to have authorized a finding that the Highway Department purchased adjoining land from Dr. Sutton at a named price. If the evidence introduced after the above stated ruling by the judge did not amount to anything and was not enough to prove anything, the failure to object to the evidence did not amount to a waiver of the exception to the ruling of the judge refusing to rule out the illegal evidence. The evidence introduced after such ruling by the court, which is the only thing that a waiver could be based on, is the testimony of Tom Hollis as follows: "As to my being familiar with the land that Dr. Julia Sutton sold to the Highway Department, I have been over that land one time a number of years ago, not recently. I would say it is similarly situated and of similar value to mine; it is approximately the same land . . ." In addition to this testimony the option given by Dr. Sutton to the Highway Department giving a right to the Highway Department to purchase the property for $10,065.45 was introduced without objection. It is true that valid objections could have been urged to the testimony above referred to and to the option, but the admission of this evidence alone, or together with other evidence, remaining in the record after a correct ruling by the court on the motion to rule out, would not authorize a jury to find that Dr. Sutton sold the land to the Highway Department for the amount stated in the option. The witness was not undertaking to swear of his own knowledge that the land was sold to the Highway Department and even if it was, he did not state the price for which it was sold. The option is not evidence of a sale at the price stated therein. Offers to sell or purchase are not admissible. See, Green, Ga. Law of Evidence, § 70, p. 174, and cases cited: "137. Note, 7 A.L.R. 2d 781, 795-96. Accord as to listing price, Peagler v. Davis, 143 Ga. 11 (4), 84 S.E. 59 (1917), Ann. Cas. 1917A, 232. 138. Groover v. Simmons, 161 Ga. 93 (6), 129 S.E. 778 (1925). See also Central Georgia Power Co. v. Stone, 139 Ga. 416, 77 S.E. 565 (1913). Contra: Bell v. Tucker, 37 Ga. App. 254 (7), 139 S.E. 573 (1927)."
It is my opinion that the court erred in overruling the motion for new trial because the court erred in refusing to strike the illegal evidence.
Judge Jordan and Judge Russell concur in the dissent.