State Highway Department v. Hollis , 106 Ga. App. 669 ( 1962 )

Felton, Chief Judge,

dissenting. In my opinion the statement of the case by the maj ority does not clearly show the issue involved. The question, as I see it, is whether, after the court refused to rule out the illegal evidence, evidence of the same nature was introduced which was sufficient, together with other legal evidence, to have authorized a finding that the Highway Department purchased adjoining land from' Dr. Sutton at a named price. If the evidence introduced after the above stated ruling by the judge did not amount to anything and was not enough to prove anything, the failure to object to the evidence did not amount to a waiver of the exception to the ruling of the judge refusing to rule out the illegal evidence. The evidence introduced after such ruling by the court, which is the only thing that a waiver could be based on, is the testimony of Tom Hollis as follows: “As to my being familiar with the land that Dr. Julia Sutton sold to the Highway Department, I have been over that land one time a number of years ago, not recently. I would say it is similarly situated and of similar value to mine; it is approximately the same land . . .” In addition to this testimony the option given by Dr. Sutton to the Highway Department giving a right to the Highway Department to purchase the property for $10,065.45 was introduced without objection. It is true that valid objections could have been urged to the testimony above referred to and to the option, but the admission of this evidence alone, or together with other evidence, remaining in the record after a correct ruling by the court on the motion to rule out, would not authorize a jury to find that Dr. Sutton sold the land to the Highway Department for the amount stated in the option. The witness was not undertaking to swear of his own knowledge that the land was sold to the Highway Department and even if it was, he did not state the price for which it was sold. The option is not evidence of a sale at the price stated therein. Offers to sell or purchase are not admissible. See, Green, Ga. Law of Evidence, § 70, p. 174, and cases cited: “137. Note, 7 A.L.R. 2d 781, 795-96. Accord as to listing price, Peagler v. Davis, 143 Ga. 11 (4), 84 SE 59 (1917), Ann. Cas. 1917A, 232. 138. Groover v. Simmons, 161 Ga. 93 (6), 129 SE 778 (1925). See also Central Georgia Power Co. v. Stone, 139 Ga. 416, 77 SE 565 (1913). Contra: Bell v. Tucker, 37 Ga. App. 254 (7), 139 SE 573 (1927).”

It is my opinion that the court erred in overruling the motion for new trial because the court erred in refusing to strike the illegal evidence.

Judge Jordan and Judge Russell concur in the dissent.