Hogan v. OliveraHogan v. Olivera
Lead Opinion
This case involves a suit for damages, general and special, resulting from a trespass upon realty by the defendant allegedly collecting and discharging large quantities of surface water upon plaintiff s property.
The evidence showed that defendant developed a subdivision above plaintiffs lot. In order to drain surface water from a part of the subdivision, defendant’s contractor cut an extension ditch from the end of a drainage pipe through a natural swale resulting in the discharge of the water onto plaintiffs property. While the contractor testified he cut this extension ditch to the left, there was other evidence that there was no visible indication that a ditch had been dug to the left. There was undisputed evidence that someone dug a ditch straight away from the end of the pipe thereby discharging water below the swale. The water followed the direction of the ditch which was straight down an incline and onto plaintiffs lot. Plaintiff sought special damages and general damages alleging that the improper discharge of water had caused damage to her lot, her home, and some personal property in her basement caused by flooding.
A jury verdict was returned for the plaintiff in the amount of $10,000. The judgment followed the verdict, and defendant moved for a new trial and for judgment notwithstanding the verdict, which was denied. Defendant appeals. Held:
1. In defendant’s first two enumerations of error counsel urges that the trial court erred in failing to grant his motions for judgment notwithstanding the verdict or alternatively a motion for new trial. These motions have several bases.
(a) Defendant first argues that the evidence is
Our responsibility on appeal is not to weigh the evidence and give a de novo opinion on where the greater weight of the evidence lies but merely to determine if there is sufficient evidence to authorize the trial court’s judgment. Hallford v. Banks,
(b) The second facet of defendant’s argument is that there was no probative evidence of certain of the special damages allegedly suffered by plaintiff. He argues that plaintiff offered evidence of the value of a rug, a stereo, and some used furniture, all of which allegedly was damaged in appellee’s basement. Defendant complains that plaintiff offered no basis for her opinion as to the value of these items and consequently that there is no probative evidence of that fact. But as to the other items of special damages, probative, admissible evidence was offered for the jury’s consideration.
(c) Also in reference to value, defendant argues that the court erred in allowing a real estate broker to testify as to the diminution of the market value of plaintiffs property due to the change in water flow and resulting water destruction. The basis for this claimed error is that the broker did not qualify as an expert so as to justify the admission of opinion testimony to the effect that the property had suffered a loss in value of approximately
An expert is one who by habits of life and business has a peculiar skill in forming an opinion on the subject in dispute. Sims v. State,
Whether or not a witness is allowed to testify as an expert is a question for the sound discretion of the trial court and such discretion, unless abused, will not be disturbed. Rouse v. Fussell,
(d) Finally defendant argues that the verdict for damages is not supported by the evidence. In her complaint plaintiff sought $10,000 special damages and $50,000 general damages. In its charge to the jury, the trial court limited the special damages to those explicitly proved, and the general damages to the diminution of the property value to the extent believed and accepted by the jury. The evidence offered by plaintiff through her own testimony and that of her expert witness established the range of the special and general damages well within the findings of the jury.
Defendant contends the evidence of damages presented by plaintiff, when taken in its most beneficial aspect favoring plaintiff will establish damages of only $7,135. This argument can only be arrived at by breaking down the testimony as to damages into three elements: $5,000 diminution in value of plaintiffs property; $775 on loss of personalty; and $1,360 for the repair of water damage. It is argued that this evidence will not support the verdict of $10,000, and further, that one cannot determine from the evidence and the charge of the court what evidence of value the jury accepted as validly
There was proof of the amount of general damages, which was the testimony of a real estate broker who testified that according to his expert opinion the diminution in value to plaintiffs property due to the trespass was $4,000 — $5,000. However, there was other factual and physical evidence which the jury may have considered, as well as the expert’s testimony in determining the general damages. All other elements of damages proven were special damages, some of which were properly presented in evidence and others which were, as noted in Division 1 (b) above, not properly presented in evidence and perhaps lacked probative value.
The jury is not compelled to accept the testimony of the real estate broker regarding diminution in value at its maximum, $5,000. Such a result is in contradiction to the past decisions of this court. The general rule as stated in Hixson v. Barrow,
Jurors are not absolutely bound to accept as correct the opinions of witnesses as to value of property, though uncontradicted by other testimony, but have the right to consider the nature of the property involved, together with any other facts or circumstances properly within the knowledge of the jury which throws light upon the question, and by their verdict, may fix either a lower or
Generally, examination of the multitude of these cases citing the above rule shows a reduction by the jury in the verdict as opposed to the expert’s opinion. But in the case of Reserve Life Ins. Co. v. Gay,
In Ga. Power Co. v. Harwell,
In Sun Ins. Co. v. League,
There was sufficient evidence presented to the jury in the case sub judice from which they might reach their independent conclusion as to the diminution in value of plaintiffs property. Plaintiff testified as to the nature of the damages and presented approximately 60 photographs which illustrate the damage to her property. The jury apparently relied on that evidence, as well as that of the expert opinion of the real estate broker, in reaching its findings as to general damages. This conduct
The recent case of King v. Sinyard,
The evidence composed of data, photographs and testimony of the damages was ample to authorize the verdict, as the expert’s opinion was advisory only and intended to assist the jury in coming to a correct conclusion. See Childs v. Logan Motor Co.,
The case of Andrews v. Commercial Credit Corp.,
When the verdict and judgment awards damages within the range of the evidence, factual and physical, this court will not reverse the judgment of the trial court. Campo Construction, Inc. v. Stembridge,
The first two enumerations of error are without merit.
2. In Enumerations 3 and 4 defendant urges that the court erred in certain of its instructions on the issue of damages. However, we note that defendant offered no objection to those instructions, nor did he request specific instructions on the subject of damages. We find no gross injustice which would require consideration of the alleged errors as being harmful as a matter of law. These enumerations of error are not meritorious. See Ga. L., 1965, pp. 18, 31; 1966, pp. 493, 498; 1968, pp. 1092, 1098 (Code Ann. § 70-207 (a, c)); King v. Adams,
Judgment affirmed.
Dissenting Opinion
dissenting.
I find myself in full agreement with Divisions 1 (a), (b), and (c) and Division 2 of the principal decision. However, I cannot concur with the majority’s view as to the certainty of damages established by the evidence in this case, as set forth in Division 1 (d).
I am in agreement with the basic position advanced by my brothers that the jury is not bound by the testimony of an expert. Thus it is espoused that inasmuch as appellee prayed for $50,000 general damages and the damages returned by the jury only amounted to $10,000, the jury’s award is well within the realm of the general damages sought. It is urged that though the trial court limited the general damages to the diminution of value of the real estate, the jury was not bound by the evidence offered by appellee’s expert that the property suffered $4,000 to $5,000 loss of market value. It is said that the jury could look to some 60 pictures offered in evidence and use that pictorial evidence to reach its verdict so far different from the value testimony offered by the expert. The difficulty I have with this position is that the pictures were offered to illustrate the position of the ditch, the flow of water, to illustrate the swale, to show silting and similar conditions. Appellee testified that all these conditions had been rectified and offered evidence as to special damages to offset the cost of rectifying the problems illustrated by the photographs. At no time was any evidence offered connecting the pictures to a diminution of market value of the real estate. In my opinion we are faced with a jury reaching a monetary verdict of damages absent any reasonable or sufficient guidelines to aid them in reaching their decision. I have no dispute with the conclusion that appellee is entitled to compensation for the damages caused by the improper diversion and water flow in this case. It is my belief, however, that a jury must have adequate guidelines and supportive evidence to reach a sustainable verdict. Bendle v. Ortho Mattress, Inc.,