*1 Jr., B. in error. Wallace, Adamson, Albert Frank plaintiff Hutcheson, Lee Highway Department Georgia
19417. State of et al.
Andrus petition grant Justice. This case is of a before this court Mobley, Highway Appeals. for certiorari from the Court of State Andrus Dept., S. E. 2d After a careful consideration presented petition, of the two issues it is our that the Appeals decision of is correct. The decision that court opinion requires division its no this two elaboration court. opinion, division three held that the trial jury subject charging court erred in benefits jury premises, presented where the no viewed the but where evidence was as to trial the amount of benefits. From the rec- appears that, ord it while there was evidence that there would remaining property condemnation, benefits to the after the there was no to the amount of bene- question presented fits. The this is whether the who viewed premises, to fix the amount and from infor- acquired by premises. mation We are unable directly passed on find where this court ever has English law, presiding judge Under the common in real and mixed authorized, discretion, permit jury actions was in his view Thompson Trials, 665, seq. See 1 875 et an English statute was enacted which extended the to all civil actions. 16, § statute, 4 Anne Anne, provided ch. 8. This known as the Statute premises could view the discretion the trial understanding given “in order to their better the evidence that will be By adopting February 25, the trial of such issues.” our statute of England usually such of the common and statute laws as were May adopted force Georgia this State on were the law contrary Constitution, so far as laws, and form of government p. Digest, 1851, established this State. Cobb’s New Bottling Moore Macon Coca-Cola English cited the statute of Anne and other and American subject, authorities held that it was within discretion of permit premises, appearing “from motion machinery defendant’s that a aid the to better understand the as to witnesses machinery kind nautre used the defendant and the method bottling used it in such Coca-Cola.” Corp., Pipe Line v. Transcontinental Gas In Brown a trial of this State the law “While it is stated: E. 2d or without may permit judge judge a in the discretion whenever consent the evi- better to understand aid himself view dence”; *2 judg- his parties base and thereafter of the without the consent of the evidence and a view ment the jury certainly may apply by testimony knowledge The to the the obtained property seeing knowledge in them the use their in construing the evidence. But where no evidence is introduced before the jury, solely upon knowledge can the render a verdict based experience gained by premises? and information in the them juror private knowledge provides: § on Code 110-108 “A shall not act his respecting facts, witnesses, the or unless sworn and examined Carreker, (2), a witness in the case.” Gibson 965), charge that in it was held: “It was error the ascertain convey ing breach, [of the value of the land time of the a bond to at the they might only evidence, land] consider not the but their own knowl country.” edge the as to the value of land in the And certainly charge jury that, in court stated: “It error to ascertain was bonds, they ing of the the value of the lands at the time of the breach might only evidence, knowledge not but their as to the consider own country. questions Juries should decide of fact them, personal according to the evidence introduced before their certainly part knowledge a cannot constitute the evidence. This is so subject unnecessary.” obvious that we deem a further discussion (3) (35 Telephone Co., v. American &c. Shahan 5), jury may “A from which the have inferred that court held: by from a had that facts ascertained them probative regard themselves and to the evidence within improper Eng. Ann. In Am. & Cases it is incorrect.” determining the value of the stated: “It is well-settled rule that assessing premises sought damages to be condemned and eminent wholly disregard the evidence and domain depend only upon their and the facts own Detroit, etc., Co., knowledge by premises. Detroit v. R. Co., 304; Gray York, etc., Telephone N. De J. L. Mich. New Co., Eng. 454; Milwaukee, etc., R. Wis. 20 Am. & Washburn jury’s partly “A based R. Cas. 225.” verdict by court, supported by reviewing unless the verdict is set aside should be by testimony 3 Am. Jur. delivered sworn witnesses.” substantial juiy “may not, however, ignore cases, eminent domain knowledge or their view their the evidence and base their verdict case, and it is error so instruct them.” value of the land Light 1004,§ & Co. v. Peoria Ter 361. In Peoria Gas Coke 18 Am. Jur. Ry. Co., 21 L. R. A. Ill. N. minal proceeding in which by Supreme expressed Court rule in that State was supported “The verdict Illinois as follows: personal can in no case rest examination of the premises by jury, they may however well be that their convinced damages examination furnishes a more for an reliable basis assessment of testimony than rule witnesses.” The reason Winnebago well stated in Washburn R. v. Milwaukee & Lake Eng. Wis. N. W. 20 Am. R. follows: “To & Cas. up knowledge allow on to make their their verdict individual disputed case, material facts not testified private opinions, unjust. dangerous or most It deprive losing party right cross-examination, credibility Besides, the benefit of all the tests which law affords. knowledge, grounds opinions, of such or the evidence of such preserved exceptions questioned appeal. be a bill of or It juror accuracy would make each the absolute and value opinions, compel appellate or his court to judgments facts, affirm when the evidence is before it and all support judgment. there is none obliged had, presume juror thought or or at some least had, personal knowledge he of facts outside the or con trary it, judgment.” which would sustain The Washburn case was involving a condemnation case and in conflicting, damages stated: “If the value and *3 general knowledge resort elements which assessment, weight affect the in order to the relative determine con flicting supported by but their assessment must be testimony or it cannot stand.” juryA regularly must arrive at their produced verdict from evidence proceedings, may properly the course of the trial and call to their aid knowledge, learning experience, any gained information premises weighing from view of the but their verdict supported by must be evidence and cannot rest land, or their of the value of or the conse- benefits, quential as in case. Applying principles, Appeals correctly that, the above held proceeding, a condemnation where there was no evidence of the amount during regular benefits introduced before the permitted where error for instruct that should assess benefits to the condemnee’s land which taken and deduct the damages. amount such benefits Judgment concur, except Duckworth, All J., the Justices C. affirmed. Hawkins, J., who
Argued September 1956 Decided December Sheats, Harold Paid W. Neal Anderson, Baird, H. for plaintiff in error.
Wm. G. Grant, Robt. Spears, W.
na ruling Justice, dissenting. I cannot concur
Hawkins,
of the court as
majority
question
affirmance.
judgment of
benefits, or in the
that,
theory
opinion
predicated
majority
seems to be
opinion
this, there
proceeding
such as
as
the value
evidence
witness
charge with
before
repeat
have
thereto. Both
court and the
are
to value
opinions
as
edly
that
of witnesses
held
fix value
binding
or conclusive on
v.
Bonds
tending
illustrate that
from other evidence
Graham, 137 Ga.
v.
(66
156); Graham
Brown,
Ga.
E.
S.
(77
(74
Ry.
Lowe,
v.
426);
E.
Southern
Co.
139 Ga.
S.
Bailey
(92
57);
S. E.
Kemp,
Hammock v.
Wyatt, against Justice. Plaintiff error suit defendant error, seeking answered, denying a total divorce. defendant