This is the third appearance of this condemnation case before this Court. See
Dept. of Transp. v. Sharpe,
In
Sharpe,
1. For the reasons set forth in the Supreme Court’s opinion, the trial court did not err in denying the DOT’s motion to strike the testimony of the condemnees’ experts.
2. The DOT contends the court erred in responding to a jury question. During deliberations, the jury sent the judge a note reading аs follows: “We request the dollar figures Mr. [Limb, one of the condemnees’ experts] quoted for each of the following areas: (1) The ‘take’ area actually condemned. (2) The acreage to the north of the condemned area. (3) Any other areas of the Sharpte] property allegedly damaged.” Ovеr the DOT’s objection, the court responded by writing on the note: “1. Value of‘take’ — $595,605.00. 2 & 3. Total of north acreage & buffer: $838,713.00.” The DOT contends the court’s response improperly emphasized the expert’s testimony.
We agree that the court’s method of responding to the jury’s question was improper. In
Dept. of Transp. v. Benton,
Here, in addition to placing undue emphasis on the expert’s testimony by allowing a written summary of it tо go out with the jury, the judge’s note also constituted his own characterization and summary of the expert’s testimony. Generally, “it is error for the judge to state to the jury whаt a witness has testified, such a statement being in effect an expression of opinion as to what has been proved.”
Nelson v. State,
Although this ruling is sufficient to dispose of this appeal, we will consider the DOT’s other enumerations of error as they could recur upon a retrial of this case.
3. The DOT contends the court erred in refusing to give a requested jury charge regarding speculative damages. The DOT requested that the court charge as follows: “I chаrge you that in your deliberations in determining compensation to be awarded the condemnee in this case, you are not authorized to, and should not, cоnsider a vague, remote, imaginary, uncertain, contingent, sentimental or speculative item or contention of damage in this case.” The court instead сharged as follows: “In determining compensation to be awarded the condemnee in this case, you are not authorized to and should not consider remоte or sentimental — or sentimental items in doing so.”
The DOT contends the charge as given did not adequately advise the jury that it could not consider speculative itеms of damages. It contends the charge undercut its argument that evidence regarding possible future mining of limestone deposits on the property was too sрeculative for consideration, since the limestone in fact had never been mined.
The DOT cites
Benton,
supra, as authority for its speculativeness charge. However,
Benton
dеalt with testimony regarding the value of raw land based upon the hypothetical future development of
*356
the land as subdivision lots.
Benton,
The DOT’s argument is without merit. The fact that the property had not been mined for limestone does not render it speculative to consider the effect of the limestone, in its present unmined state, on the value of the property. Indeed, a jury is
required
to consider the presence of the limestone as a factor affecting the value of the property, notwithstanding the facts that it had not been mined previously and that there were no plans to mine it at the time of the taking. See
Gunn,
supra. Although a jury would not be authorized to make separate awards for the value of the surfacе property and the value of the limestone, “[t]he
fact
that [limestone] was present was a relevant factor to be considered in determining the overall value of the property.”
Williams v. Mayor &c. of Carrollton,
The DOT’s proposed charge, in particular the portion advising the jury that it could not consider items of damage that are “uncеrtain,” had the tendency to mislead the jury into believing that, since the property had not previously been mined for its limestone, the jury could not take the limestonе into consideration in valuing the property. Indeed, that is the very position taken by the DOT. Accordingly, the court did not err in refusing to give such charge. See
Shilliday v. Dunaway,
4. The DOT also contends the court erred in responding to a second jury question. The jury sent the court the follоwing note: “Can the court compute a dollar amount based on the following data. 8 million tons[,] 20 cents per ton[,] 20% discount[,] 8 years[.] We do not have the expertise to run these numbers.” The court responded by replaying a portion of the testimony of Robert Gerhart, an expert witness for the condemnees, explaining how to perform a present value calculation using similar variables.
The DOT’s only objection to the court’s response is that it unduly emphasized the expert’s testimony by repeating it to the jury. The DOT contends that the court should merely have informed the jury that the evidence was closed and that they must rely on their memoriеs. This contention is without merit. A trial court has discretion in replaying portions of testimony in response to jury questions, and its *357 discretion should not be controlled unless it is clеarly shown to have been abused. See Dixie-Ohio Express, supra. Given the complexity of the mathematical formulation the jury sought to make, and of the testimony relating to such formulation, the judge clearly had discretion to replay the relevant testimony to enable the jury to make an informed decision. The DOT does not contеnd that the replayed testimony was not responsive to the jury’s question. Furthermore, the court informed the jury that it should not give the testimony any more weight because of the fact that it was hearing it twice. Accordingly, this enumeration is without merit.
Judgment reversed and remanded.