*1 did not own the Weissman never told Mrs. that fendant defendant Clearly fails to show that the property. misrepresentation to Mrs. Weissman concern- made a wilful ever property, nowhere does ing ownership his any representation ever relied that Mrs. Weissman show plaintiff failed deceit defendant. The also to show made sup- material fact. To theory of failure disclose a under the to disclose a action on port an of deceit failure must show there was a conceal- fact, material the evidence done fact, such concealment was of material ment manner as it was done in such induce another to act that the The evidence failed to- show deceive mislead. ownership prop- lack wilfully his defendant concealed her Weissman and to- induce and mislead Mrs. erty, deceive Mrs. Weissman relied the evidence to act. Nor does concealment. misrepresentation Since to-show wilful evidence failed unobjected and since de- fails to show such evidence to- the theory concealment, ceit on failure to disclose and plaintiff verdict favor of authorized. denying
The court trial. erred motion for new Quillian Judgment Nichols, JJ., reversed. concur. v. MILLER. 36292. SOUTHERN RAILWAY COMPANY Decided November 1956. *2 Matthews, Maddox, Smith,
Claude V. & John Walton Driver, Maddox, plaintiff W. for in error.
Don B. Howe, contra. judgment P. J. the should deciding that Since we
Gardner, special grounds, be reversed on not discuss the evi- will the general grounds, may dence as related to the facts be the as held. trial, different another be should another trial ground Special the as whether the raises issue to testimony, objections of counsel for admitting erred the over is plaintiff, impor so1 Grace. Since this Charlie witness ground. tant, quote special we feel we should all of this that following ground assigns Special error as follows: jury, material evidence the court to the was objection movant, wit: to what was rea over to ‘As I answer that place, sonable market that sand value of sold getting for would figuring what we were on it when it ton, going for was relative. pay $4 be what we were it to had that we going pay it, to what we were I answer As to him figure guarantee $100 arrived at Mr. Miller with up a put plant piece property, get a month for it, sand, on ton of whichever or 50 ton each cents a (a) ten-year Mov proposition.’ greater. figuring We were on a time it was objected as soon as and at the ant to the evidence offered, urged and then court the following and there before the following objection: Counsel for defendant asked the sand? Mad question: What was a reasonable object landowner is not dox: ‘We that on elements permitted by piecemeal various only of the land. The go up to make the full of the land. Pie is the fair market value thing that is involved ele land is and what show what nature various can permitted he give value, but under law go ments give separate (separate go- items which up get make the land so aggregate. as to has not There ruling in our courts our that, State but Federal courts universally say held We that. that this be would not witness testify deposits. able to the value of If he knows, can whole, taking state market value of the land the fair as a there, into consideration the sand that ques- but ultimate is, fair land, tion what was the market value of the and that’s only thing permitted testify.’ (b) The defend- he could be evidence, ant, Miller, (c) Mrs. offered Maude The court overruled and admitted follows: The court: T as under our make this that inasmuch State ruling, damage land, law to consider the land, might and all be purposes, appropriate. your way, by saying overrule motion that this prove admissible as a circumstance the value the whole.’ objected immediately Said evidence preceded evidence: it to We estimated 1000 and between *3 yards yard of there. A is cubic believe 2640. There approximately be quarter yard, a ton and a the to1 material, prejudicial evidence was hurtful condemnor to' the the only reason it shows of one of the separate value many go to make value of up elements the fair market the part per- property pattern testimony of of which condemned, give the separate mits condemnee to each of such value to- get aggregate elements all of such so as to the values of elements, although value attributed some of the elements the to1 necessarily other since some given elements, excludes the value to> property necessarily uses, exclude uses the other such aggregation separate of the uses of the values various way not the proving land permit condemned. be To value to arrived at method, higher placed allows a value to be thereof, than fair witness market value name of whose admitted over to have Grace, (g) valid avers said is Charlie beyond inadmissibility doubt.” call We attention to United States v. Fed. Phillips, Supp. originated which Georgia. Judges In that case Under- compensation “The awarded Lovett, held: be
wood, Russell and to be determined by the States is not condemned United for land land taken is of various which the by adding the values uses to Georgia Ry. v. &c. adapted.” Atlanta Terra Cotta Co. also See carefully read E. have Co., We testified find that never Grace and we testimony of the witness at the of land time 3.97 acres the market uses all elements understand that We the condemnation. to determine may into consideration of the land be taken the land taken and the market value of procedure, However, under sort land taken. not testify separately may a witness be the witness Grace testimony of From element. each calculation to only mathematical it was it will noted that be deposit sixty fifty worth from said to' determine dollars, sought time land to be thousand previous to that While we called condemned, but time. Georgia Ry. Co., Terra attention Cotta Co. &c. to Atlanta was re- supra, quoted therefrom, we realize that the case versed, principle law. Nevertheless perhaps, another opinion stated that the Supreme Court, during the course of the (the clay containing deposits fact land had been established that case) may greater instant deposits same as sand land clay but that the deposits, than land without cannot subject matter and there deposits constitute one clay deposits. recovery such, land as and also for be a deposits their value For the sand court deal with trial Grace, erroneous, mentioned the witness covering the time allowing and the committed reversible error jury. considered to be
Special ground 2 assigns error as follows: following material evidence was court illegally admitted jury to remain in the to record and before the consideration, over the motion of exclude movant to’ 'As what was reasonable market same. to that I that what we place, figuring getting at answer were on ton, $4 for it when was sold would be and what going it we were pay pay it relative. As to what we to going to for was were figure I at it, that we had arrived with Mr. Miller that answer guarantee piece $100 him this to property, month for plant it, ton get put or 50 a ton for each cents ten-year sand, greater. figuring whichever was We were aon proposition. the end anything So we left didn’t till there do* sell me 1953, Mr. Mendelson decided to*retire and wanted to there, all plant, then I would need it down I decided that to everything, competition, there and no small towns down with got put plant there, got investigating and I it and down to ready railroad up draw the contract and found that the out right going was to build a railroad this dam. That’s across go- it, that the reason I ahead I found out didn’t with because it. down there sometime going railroad to condemn I was was year. understanding that December last As whether our ‘No’, 1951, answer, had I we with him made back there it. As made ’53—-‘Yes’,but we didn’t he us take whether him, put 1951,1 answer, ‘No’, offer in that was offered what we plant him. to whether there. We made an offer to As down plant at put I there say, didn’t take we decided not it, didn’t actually agreement, we that time. there was no because So* ’53, through it at time. In the end of when go with business, to take going Mr. Mendelson quit decided to it plant there, and move down but when we went into it going put survey, they Mr. Miller about the were told me if there, plant there railroad was advised not to move I and going right-of-way. Actually railroad take agreement with any Mr. formal Mendelson never did enter into Miller. As Miller. Mrs. All business with done him, I we any agreement whether answer we had formal with plant agreed put just fit would do if we saw put did there.’ there. We
“(a) moved to exclude the evidence as soon the time was offered, and then urged and there before the of such motion to*exclude: Mr. Mad- dox: T move exclude the testimony about this conversation negotiations and about these they because didn’t culminate in a contract; there was nothing more than an opportunity or an offer for be done, and an offer not acted placing basis (b) value on this element of land.’ defendant, Maude Miller, Mrs. sought offered the to*be
706
excluded,
to exclude
(c) The court
motion
overruled
remain in the record and before
permitted such evidence to
consideration,
preju-
material,
The evidence
jury for
jury to
permitted
because it
dicial and harmful movant
consider,
market value
arriving
basis for
the fair
taken and
amount
sus-
at the
tained,
negotiations for
particular
mere
use
contract,
making and
which never
consumma-
resulted
speculative to
form
tion which contract was too remote
damages,
name
element
testimony
illegally
have been
whose
witness
remain in
record
before
admitted and
Grace,
avers that
consideration Charlie
beyond
inadmissibility
evidence was
doubt.”
prove the
uncertain to
speculative
evidence was too
time of the
land
condemna-
plaintiff’s
value of the
actual
178,
Selma,
Dalton R. Co. v. Keith,
tion. See
Rome &
53
Corp.,
Special ground 3 error: material evidence was the court to jury, movant, ‘As to the over to wit: statement compare I it with can what we manufactured in Rome plant, say, I I have an automatic block would machine that going was the were turn 3200 8 8. That one we out sand, there. As how much that is in the blocks move down weigh approximately two tons neighborhood pounds, of 40 per many say blocks. hundred to how blocks As average day’s thirty-two hundred, be, answer, run which day. As to*how *6 $32. would be tons That would of many days, days week, say, if proposed run a five we use 64 machine up. demand would blocks stood a day, approximately.’ tons
“(a) objected Movant soon as and at the evidence as offered, time it was and then urged and there the court before following grounds objection: (Mr. of Howe asked the witness following examination): question direct of ‘In course ordinary day’s particular run with you proposed this mill that put at place, this what take average would have been the of per day, object in tons?’ Mr. Maddox: ‘I that on the stated, I have and on further could nothing more talking be conjectural, than since about business existed, when, that never a time we know not we don’t lasting power be, know what business whether this would paying it would be time or a long period business over period short time, of the we don’t know what the market product therefore, be, quantity of sand that would be used business be than nothing nonexistent can con- more jectural or speculative anything upon and cannot which the consumed, could or the arrive to be value of (b) fair of the The Mrs. defendant, market value land itself.’ < (c) Miller, objected Maude to. The offered evidence evidence, objection overruled The and admitted the material, prejudicial evidence harmful be- to movant cause the output proposed the future concrete- plant, money block and the defendant on account receive thereof, remote, speculative contingent too to form proper basis or element the fair market value of the sustained, consequential damages taken and name The the witness whose to have been ad- obj mitted over valid ection Charlie Grace. Movant avers inadmissibility beyond doubt.” evidence was Georgia In Central Power Co. Mays, E. 900), Supreme Court “Remote merely specu- said: or or possible lative considering are not allowed in . . . damage or taken the land [the reversible error committed trial court land not taken].” assignment overruling of error. follows: assigns error as
Special ground 4 the court illegally evidence was grading was to what 'As jury, over of movant: . . . twenty odd some say, twenty-eight done, I hundred $2,820.’ spent Mr. Miller
“(a) objected as at the soon offered, it was urged time and then and there before the court following grounds objection: object T Maddox: testimony concerning grading being the cost irrelevant testify immaterial. He can what has done or as to is, what the nature land and if he what the fair knows market value of it is. think has his shown that testi- mony.’ (b) defendant, Miller, Mrs. Maude offered the *7 testimony objected (c) to. The court overruled the evidence, and admitted the after statement of counsel for said defendant, consequential as follows: Howe: want to Mr. T show damages. expect spent grading that it I for $2800 purpose having the dam expect a motel. that the We to show jammed up against the it and was removed and railroad was it purpose.’ made T admit it for that valueless.’ The court: will prejudicial The was harmful the movant at use, arriving consider because it sus- consequential damage the value of land taken and retained, improper on element of tained the land value damage, improper proving and an such value method of higher damage, jury to a calculated to cause the arrive at correct, consequential damage name than was illegally witness whose have Shealy. objection is Howard Movant admitted over valid beyond doubt.” inadmissibility the evidence was avers it not admissible because To our minds this damage land not taken consequential to the sought to value by ($2,820 grading done particular amount by specifying subsequently shows the defendant owner). The record prior $3,300 grading was done for property on which the purchased (we involved acres here 3.97 included acres. necessarily proper selling price not might add here that grading land). question market of what years acquisition property prior cost several consequen- amount of properly defendant does illustrate the not consequential damage tial not taken. The damage taking from acres is to which resulted 3.97 of the land be determined in the market value decrease damage, any, if consequential not The decrease of the taken. taken, is the land not taken as a of that which was result taken for pur- decrease in the land particular To item of work on the poses. specify one may proper grading contract not taken is rule. The $2,820 or but cannot more, less, been worth be used or solely guide aas determine the
whole the land not taken.
Special ground assigns error follows: material evidence the court jury, to the objection movant, dealings over the wit: T had with Mr. Grace sand. After I about the the railroad found out doing they done, thought something what had I we would do thought about the sand, and I would lease to Mr. He Grace. years said would lease it for ten $100 month or 50 cents a ton.’ “ (a) objected to the evidence as soon as and time offered, then and urged there before the following grounds objection: object Maddox: T the same did when Mr. Grace testified about the matter, same that it is not damage element *8 to what various items themselves are valued at, of and testimony course this up leads to that. It the fair market of property value as a whole aggregate and the sepa- parts. rate object further to of this line testimony already which been given by has negotiations Mr. Miller to the with Grace the ground it never was consummated and there never a actually contract upon.’ made or acted (b) The defendant, Miller, Mrs. Maude offered the evidence objected (c) to. objection court overruled the and admitted evidence, the as follows: The court: let in T will under the same conditions and for the same reason stated with reference material, testimony of Mr. Grace.’ The evidence sep- a because shows
prejudicial and harmful the movant go' many elements that make only arate of of value one condemned, part is a property up fair value of the give pattern testimony permitted of of which condemnee a get aggre- of elements so separate value each such value elements, although the gate all the values of of such necessarily value elements excludes the attributed to some necessarily exclude of the uses given other elements since some separate uses, aggregation values of other such way proving the property proper is not the uses various the value and property permit condemned. To higher method, allows a damages to be arrived market value fair placed to be than the be assessed than is thereof, higher correct. consider, as a basis further and at taken arriving fair market negotia- damages sustained, mere of consequential the amount never culminated property which tions particular use of consummation which contract contract, making element of such speculative form too remote and whose testi- of the witness damages, The name over valid mony is to have Miller, inadmissi- avers that Henry doubt.” bility beyond of the evidence principle dealing foregoing with We have dealt this with special support grounds. special ground meritorious. In following: contention defendant cites counsel 30; 36-505, 36-506; Young Harrison, v. 17 Ga. 36-504, Code §§ Georgia (79 E. Co., v. Central Power 140 Ga. S. Flemister County (172 Smith, 645); Hall v. E. Chat 148); 178 Ga. S. (70 683); Ry. App. S. E. Valley Bass, Co. v. 9 Ga. tahoochee City Hobbs, 121 Ga. E. Elberton We urged by counsel for defend read these set citations out think why affirmed. We do not judgment ant as to should be in the instant case apply suf of these to the of the court. judgment affirmance ficiently to demand the ground 1, special dissenting opinion filed in case In record and call attention to fact view of this *9 amendments, all special grounds necessarily to together. opinion is considered our that it is feasible It not ground one thereon dissenting take without on the dissent special grounds, they other are since author so interrelated. dissenting this, opinion think, realizes when he states dissenting opinion pointed directly special while his ground 1, might equal apply special with force grounds. Our attention in the called, dissenting opin has been ion, Housing Authority City Savannah Savannah Iron Works, App. 2d re &c. S. E. We have read carefully case our opinion and it that the facts and questions out there set are so dissimilar considered practically facts decision in instant case that there is similarity no between that case and the instant case.
Judgment reversed. J., concurs. Carlisle, Felton, J.,C. Quillian, J., specially. Nichols, concur Townsend and JJ., dis- sent. J.,C. concurring specially. I in ruling concur
Felton, judgment special ground motion for a three of the amended new trial. special
I do think grounds one two are meritorious objections as to testimony made to in view the state- judge. ments of I objections urged do think special the evidence shown four and five meri- express opinion torious. no objections to whether other might have been meritorious. J., concurring specially. agree with what is said
Quillian, dissenting opinion ground as it special insofar relates to one of the motion trial, amended do not believe new but applicable special grounds my opinion three. It two and special grounds two error, and three reversible and for this reason I judgment concur in the of reversal. J., dissenting. What is said herein is directed to
Townsend, special ground specifically, but I it is believe equally applicable special to all grounds objecting testimony admission of offered purpose showing consequential damage por- tions of the tract of land not condemned. objection 1 is relating to the market value of sand which the proposed defendant had sell concrete-block railroad away as the result of the and which was washed
maker was that removing a dam over the creek. The *10 only deposits, of but testify as the value sand witness could not taking as into consider whole, the “market of the land value “Inasmuch as court stated: was there.” The ation consider the dam is juiy law the under our State might appropriate. purpose, it be to the land for and all age by your saying this way, motion in overrule this prove is as a circumstance of whole.” admissible value charged as measure In addition this follows: “The -to any, damages, property of consequential adjoining if land, of the of the is the the landowner a result condemnation as by adjoining measured lessening property, of the value such immediately the difference between the value after immediately the condemnation and the condemna before for a limited and having tion.” been admitted have been confused proper purpose, possibly could not believing value for into could take the together in purpose possible add values reach each the total of market ing aggregate value, in excess as contended. sum here down Atlanta Terra Cotta The court tracked law laid in (64 563) by Ry. Co., 537, Co. v. E. relied on Ga. Ga. 546 S. 132 in that “there not be a plaintiff error. It was there held can in recovery clay the land and also both for as such charge ruling request that the land,” but this was related to1 plaintiff might of the land recover both evidence as to clay deposits. trial In the case market value of the land, value of the and also as market way objection. In no other clay deposits, admitted without they may deter full which juiy picture receive a from can decrease of market value. In mine actual based valuable for sand part contended to be case one of the tract was part valuable as motel deposits; another was contended to be may his dam plaintiff prove desire to site. The another to loss deposits, to the ages one witness as opinion are facts which the uses. These commercial determined, say be and to must as market value purpose limited admissible in evidence they are not say that the witness proper instructions the court under
713 facts stating value without may give conclusion only his would make determined. from which value must be impossible. con- Also, it is trial cases almost of condemnation Authority City ruling Housing Savannah trary to the (82 244) App. E. 2d Works, v. Iron &c. 90 Ga. S. Savannah plead prove plaintiff to wherein this court allowed the damage directly entering into many elements of although recovery his could to illustrate loss, order rule laid down in predicated directly be Central thereon. (73 505) Georgia Preston, Power v. S. E. Co. capabilities prop- estimating market value “all the that in may applied erty or which and all uses to which it estimating its value.” adapted to be considered ... (72 E. Mays, S. Power Co. v. 137 Ga. See also Central Ga. County App. 900); Brown, Elbert 16 Ga. E. *11 pur- for the admissible accordingly think this light court, that it shed
pose by the which it was limited damages. valuation Nichols, J., this dissent. say I am authorized to concurs 36193. v. RAHN. G. BERND COMPANY Rehearing Decided October 2, 1956 denied December 1956.