Department of Transportation v. Kirk , 138 Ga. App. 180 ( 1976 )

Marshall, Judge.

This is an appeal by the Department of Transportation from verdict and judgment for $15,000 in favor of Kirk et ux, as an award for direct and consequential damages resulting from a condemnation of a half portion of the Kirk homesite near LaGrange. The condemnation forms a part of the development of Interstate Highway 85. DOT enumerates as error the unsupported opinion evidence of Ms. Kirk, as a homeowner, relative to the value of the property and her home, and alleged insufficient charge on consequential damages, the excessiveness of the verdict and the denial of a motion for a new trial on the special grounds above mentioned as well as the general grounds. Held:

1. The first four enumerations of error complain that Ms. Kirk was allowed, over objection, to state her bare opinion as to the value of her house and land both prior to the taking and subsequent to the taking. There was no attempt to establish her knowledge, experience or familiarity with the value of houses or real estate generally or of those values in the vicinity of LaGrange in particular.

This precise question has been considered previously by this court: ", . . when an opinion is sought from a witness as to ... value ..., it is necessary that it be shown that the witness has some knowledge, experience or familiarity with the value of the thing or of similar things. This foundation is essential in order to show the bases of the reasons for the witness’ opinion ... In absence of that showing, the testimony is inadmissible and is utterly insignificant... it cannot support a verdict as it has no probative value .... an owner . . . [may not testify] to the value of his goods in a single or gross amount without 'giving his reasons therefor’ or else showing that he has had 'an opportunity for forming a correct opinion.’ ’’ Hoard v. Wiley, 113 Ga. App. 328, 332 (147 SE2d 782). It follows that the trial court erred in allowing such opinion evidence of value, even though by the owner of the property in question.

2. Furthermore, enumeration of error 3 asserts the trial court erred in allowing Ms. Kirk to testify as to the value of her whole property before the taking and to the remaining value of the property after the taking. It is error to permit a witness to testify as to the value of the whole property (both the property taken and that not taken) before the acquisition and the value of the remainder after the taking. State Highway Dept. v. Mann, 110 Ga. App. 390 (2) (138 SE2d 610). The true measure of damages is the value only of that portion of the land which is taken as augmented by consequential damages to the land not taken, if any, as offset by consequential benefits, if any. Ga. Power Co. v. Sinclair, 122 Ga. App. 305 (176 SE2d 639).

3. Enumeration of error 6 correctly avers that the verdict is unsupported by the evidence, therefore is excessive. The only valid evidence as to value of the land taken and consequential damages to the remainder showed a value of $1,750. The evidence offered by Ms. Kirk has no probative value and cannot be considered by this court in making a determination as to whether there is any evidence to support the $15,000 verdict of the jury. State Highway Dept. v. Mann, 110 Ga. App. 390 (2), supra; State Highway Dept. v. Weldon, 107 Ga. App. 98 (129 SE2d 396).

Submitted January 5, 1976 Decided March 19, 1976. Arthur K. Bolton, Attorney General, Robert S. Stubbs, II, Chief Deputy Attorney General, Richard L. Chambers, Thurman E. Duncan, Deputy Attorneys General, Marion O. Gordon, Senior Assistant Attorney General, for appellant. James E. Weldon, H. T. Quillian, Jr., H. J. Thomas, for appellees.

4. Enumeration of error 5 complains the trial court gave vague and incomplete instructions on the subject of consequential damages. While the instruction may not be a model of clarity, it sets forth with sufficient detail the principles of consequential damages. If appellant wishes a clearer instruction, it can propose such an instruction for consideration by the trial court upon the retrial of this case.

5. The remaining enumerations of error are rendered moot by the result reached in the foregoing divisions.

Judgment reversed.

Bell, C. J., Pannell, P. J., Deen, P. J., Quillian, Clark, Stolz, and Webb, JJ., concur. Evans, J., dissents.