Harrison v. Regents of the University System

Nichols, Judge,

dissenting. I dissent from the majority holding in this case for the following reasons: Special grounds 4 and 5 of the amended motion for new trial assign error on the trial court’s refusal to allow a witness for condemnor, W. Lee Brad-berry, to answer, on cross-examination, certain questions touching upon his participation, as appraiser, in certain other previous condemnation proceedings in Clarke County, Georgia. The plaintiffs in error contend in these two special grounds that the court’s refusal to permit the witness to answer the questions referred to precluded them from showing bias and prejudice on the part of the witness in favor of the condemnors, and further that such testimony that the plaintiffs in error were seeking to elicit from the witness was impeaching in nature and going to the credibility of the witness. In order for this court to reverse the judgment of a lower court two things must affirmatively appear— error and injury. Collier Co. v. Murphey, 108 Ga. 777 (33 S. E. 641); Brown v. City of Atlanta, 66 Ga. 71, 76; First National Bank of Chattanooga v. American Sugar Refining Co., 120 Ga. 717 (48 S. E. 326), and cases cited.

Assuming arguendo that had the witness been permitted to answer both the questions propounded upon cross-examination, the refusal of which by the trial court to permit the witness to answer is the basis for the assignment of error in these two special grounds 4 and 5, I fail to see how such would show any bias or prejudice on the part of the witness in favor of the condemnors, in the absence of proof that not only had the witness always represented the condemnors in condemnation cases, but further that his appraisals in the cases wherein he participated were so consistently out of line, and so much lower in estimated value than other appraisals involving the same property, as to justifiably arouse some suspicion in the minds of the jurors. *768Counsel for the plaintiffs in error in his remarks to the trial court did not state that he intended to prove by his line of questioning that the witness Bradberry not only had always been appointed the assessor for the condemnors in every case in Clarke County, Georgia, except one as far back as 1949, but that also in each case Bradberry was the low appraiser. The mere fact that a witness has always represented condemnors in condemnation cases does not necessarily mean that his appraisals are tainted with bias or prejudice in favor of either party. Moreover, the very fact that, counsel for the plaintiffs in error sought to elicit by his questions, namely that the witness had always represented the condemnors in condemnation cases was established by other competent testimony. There was ample testimony in the record elicited from the very same witness under cross-examination to show that time and time again he had represented condemnors, and there is not any evidence in •the record to the effect that the witness had at any time represented a condemnee in a condemnation case,. Accordingly I do not think these two special grounds are meritorious. Assuming, but not deciding that the trial court erred in not permitting the witness to answer the questions propounded, it was harmless error.

Special grounds 6 and 7 of the amended motion assign error on the court’s refusal to allow counsel for the plaintiffs in error to interrogate the witness W. Lee Bradberry and Monroe Butler, witnesses for condemnor, concerning certain other condemnation transactions, the plaintiffs in error contending that such refusal amounted to an abridgment and denial of the right to a thorough and sifting cross-examination. The record in the case discloses that great latitude was given plaintiffs in error’s counsel, particularly in the cross-examination of Bradberry, some six pages of the brief of evidence being devoted to the cross-examination of Bradberry and approximately one and one-half pages to the witness Monroe Butler.

As was said in Clifton v. State, 187 Ga. 502, 508 (2 S. E. 2d 102), “ ‘The right of cross-examination thorough and sifting shall belong to every party as to the witnesses called against him.’ (Code § 38-1705). . . A substantial denial of this right is *769good cause for the grant of a new trial. . . However, the scope of the cross-examination of a witness rests largely within the discretion of the judge.” “The trial judge has a discretion to control the right of cross-examination within reasonable bounds, and an exercise of this discretion will not be controlled by a reviewing court unless it is abused.” Fouraker v. State, 4 Ga. App. 692 (3) (62 S. E. 116); Rogers v. State, 18 Ga. App. 332 (89 S. E. 460); Western & Atlantic R. v. Burnett, 79 Ga. App. 530 (54 S. E. 2d 357) and cases cited therein. I do not think, under the facts in this case, that the trial court abused his discretion.

As for the general grounds the evidence adduced on the trial of the appeal showed the property to be worth from $18,492 to $30,684 while the total value, including “rent income” showed “just compensation” for the property to range from $19,970 to $37,184. The verdict finding “just compensation” $25,575 was well within the range of the evidence and was not without evidence to support it, and no question was presented on the appeal to the jury other than “just compensation for the property condemned.” As was said by the Supreme Court in Adler v. Adler, 207 Ga. 394 (61 S. E. 2d 824), “This court does not pass upon the credibility of witnesses, nor the weight to be given evidence, on disputed facts. These are questions for the jury. Whether their verdict is contrary to the evidence, or contrary to its weight, or decidedly and strongly against its weight, is a question the law vests in the trial judge’s discretion. He may grant a new trial on these grounds, but this court has no such power. Where the trial judge approves the verdict, the sole question for determination by this court is whether there is any evidence sufficient to authorize it.” Canal Insurance Co. v. Winge Bros., 97 Ga. App. 782, 787 (104 S. E. 2d 525). See also Halpern v. Strickland, 98 Ga. App. 890, 891 (107 S. E. 2d 227). In my opinion the general grounds of the motion for new trial are accordingly without merit. Therefore I think the judgment of the trial court ought to be affirmed.

I am authorized to say that Chief Judge Felton concurs in this dissent.