Appellants/condemnees bring this appeal from a jury verdict which awarded them $28,000 as compensation for 0.145 acres of land condemned and taken by appellee/condemnor (hereinafter DOT) in order to widen Alpharetta Street (State Route 9) in Roswell, Georgia.
1. Appellants’ first enumeration of error alleges that the verdict is contrary to law. The thrust of appellants’ argument here appears to be that DOT failed to comply with Code Ann. § 95A-605 (a) (5) (now OCGA § 32-3-6 (b) (5)) requiring DOT to file a declaration of taking which contains “[a] statement of the sum of money estimated by said condemning authority to be just compensation for the land taken, including consequential damages to land not taken, accompanied by a sworn copy as an exhibit of the appraiser’s statement justifying said sum----” The record discloses that such an appraisal, in the amount of $48,720, was attached to the subject declaration of taking. At trial,
We note at the outset that the appraisal provided for in Code Ann. § 95A-605 (a) (5) is an “estimated” amount. If a condemnee is dissatisfied with the amount of compensation as estimated, he may file an appeal. Code Ann. § 95A-610 (now OCGA § 32-3-14). This appeal is in “... the nature of a de novo investigation with the right of either party, under the rules of evidence as provided for in the general laws of this State, to introduce evidence concerning: (1) the fair market value of the property taken or other evidence of just and adequate compensation, (2) the prospective and consequential damages to the remaining property by reason of the taking and use of the property for the purposes for which taken. ...” Code Ann. § 95A-612 (now OCGA § 32-3-16 (b)). Therefore, since appellants were dissatisfied with the compensation originally estimated by DOT and elected to appeal that issue to a jury, DOT was not bound by its original estimate but could present evidence de novo as to fair market value and consequential damages. The record discloses that this is precisely what happened in this case. Where a pleading, in this case DOT’s declaration of taking, is in conflict with evidence presented at trial, it will be deemed amended to conform to the evidence.
Summerlot v. Crain-Daly Volkswagen,
As for appellants’ allegation that they were tricked, the record discloses two nearly identical responses from DOT to appellants’ interrogatories. Both responses bear a service date of June 11,1981 — one response indicating service by mail, the other by hand delivery. Although the trial of this case was held on June 15 and 16,1981, the record discloses no motion to compel an earlier response. See Code Ann. § 81A-137 (a) (now OCGA § 9-ll-37(a)). See also
Bellcraft, Inc. v. Bennett,
As is here pertinent, both responses contained the appraisals of two appraisers DOT intended to call as witnesses. In the mailed response, one of the appraisals included consequential damages in
Although DOT contends that the hand-delivered response was an amendment to its original (mailed) response, there is nothing in the body of that response that so indicates. Rather, the hand-delivered response is identical to the mailed response except for the purported manner of service and certain language added to modify the one appraisal as to consequential damages. The sameness even extends to the verification page, executed by one John Whiting on April 17,1981. The appearance of these two responses, in and of itself, certainly lends credence to appellants’ allegation of trickery. If the hand-delivered response were truly intended as an amendment pursuant to Code Ann. § 81A-126 (e) (2) (B) (now OCGA § 9-11-26 (e) (2) (B)), it seems to us that the response would have been clearly labeled as such and would not bear a service date identical to the mailed response nor an identical verification page. However, the record shows that the appraiser changed his appraisal as the result of a visit he made to the site of the taking on the Thursday before trial. This fact is not disputed in the record. Thus, the record supports DOT’s contention that it seasonably (albeit unartfully) “amended” its response pursuant to Code Ann. § 81A-126. While we do not approve of the method in which DOT amended its response, and although it seems to us that DOT could have arranged for its witnesses to update their appraisals somewhat earlier than the week before trial (particularly since the case had been pending for some 18 months preceding trial), these circumstances are simply not sufficient to warrant reversal here.
“The rules of discovery, under our Civil Practice Act, are designed to narrow and clarify the issues and to remove the potential for secrecy and hiding of material that existed under our previous system. In particular, the rules of discovery are designed to provide parties with the opportunity to obtain material knowledge of all relevant facts, thereby reducing the element of surprise at trial.”
Hanna Creative Enterprises v. Alterman Foods,
2. Appellants’ second enumeration cites as error the following portion of the trial court’s charge to the jury: “Now the effect of the
condemnees
coming into court and filing this action is to put the burden of proof on them to prove to your satisfaction by a preponderance of the evidence just what constitutes just and adequate compensation for the property taken.” (Emphasis supplied.) Clearly, the word “condemnees” should have been “condemnor.” See
Andrus v. State Hwy. Dept.,
Appellants admit that they raised no objection to this charge when afforded the opportunity at trial. “It is the view of this court that the error in that frame of reference [no objection having been made to the charge at trial] is not harmful unless a gross miscarriage of justice attributable to it is about to result. Generally, if counsel, who are skilled and trained in the law and who have prepared and tried the case, failed to see the error and enter an exception as provided in [Code Ann. § 70-207] subsections (a) and (b), it is not to be regarded as harmful. Instances when the charge will be found ground for reversal under subsection (c) are likely to be very, very rare.”
Nathan v. Duncan,
In this case the use of “condemnees” rather than “condemnor” was clearly inadvertent, a slip of the tongue. “The portion of the trial court’s charge dealing with the question of burden of proof... while inapt when standing alone, yet, when considered in connection with
3. Appellants also contend: “The trial court erred in that it charged the jury as to the testimony of expert witnesses, but failed or refused to charge as to an owner testifying.” The gravamen of this contention appears to be the trial court’s refusal to give the following request to charge: “... I charge you that the law recognizes that the owner of property usually has a higher standing than other witnesses to testify as to value, because he or she has more reason for and better opportunity for having familiarity with the property.” The language of this request was taken nearly verbatim from former Judge Evans’ dissenting opinion in
Dept. of Transportation v. Kirk,
4. Appellants’ fourth enumeration assigns error to the trial court’s charging “. . . that only land was taken when in fact every witness testified that improvements were also taken.” Appellants’ exception at trial listed as improvements “the planters, the curbing, and so forth.” In its charge the trial court correctly noted that there was no contention that any buildings had been taken, “. . . but property, land in question — the value of the land, the nature and character of the property, its situation, its availabilty for different uses, all the facts which may be disclosed by the evidence tending to throw light upon its fair market value may be taken into consideration by you, the jury.” (Emphasis supplied.) In our view, the foregoing charge did not preclude the jury from considering certain improvements which had been made to the subject property. Appellants have cited no authority to the contrary; hence, this enumeration is without merit.
5. Appellants contend that the trial court erred in charging the jury as to consequential benefits which, if proven, could be used to reduce the amount of any consequential damages. They argue that
6. The issue raised by appellants’ sixth enumeration of error is virtually identical to that discussed in Division 5, supra, and is likewise without merit.
7. The seventh enumeration cites as error the trial court’s admitting certain hearsay evidence and not granting a mistrial because of it. The record discloses no request for a mistrial. The hearsay objected to was tendered for the purpose of showing the basis for the testimony of one of DOT’S expert witnesses. The trial court cautioned the jury to consider it only for that purpose and not as proof of fact. Under these circumstances, this enumeration has no merit.
City of Atlanta v. McLucas,
8. For the reasons set forth in this opinion, the trial court did not err in entering judgment on the verdict of the jury and in denying appellants’ motion for new trial.
Judgment affirmed.