Fulton County v. Elliott

Pannell, Judge.

The prior opinion in this case (109 Ga. App. 775, 137 SE2d 477), in Division 2 reversed the trial court for error in the charge relating to the method for determining the market value of the property taken, and in Division 3 held that another charge complained of contained an obvious slip of the tongue, but made no ruling on whether the error was harmful in view of the reversal on the other ground. The ground of reversal, on certiorari, was reversed by the Supreme Court, 220 Ga. 377 (139 SE2d 312), and it now becomes necessary to determine whether the charge containing the slip of the tongue was such error as to require the grant of a new trial. This charge is as follows: “Now, in this case it is your duty, in the determination of the case, to assess the value of the property taken and also assess the consequential damages to the property [not] taken, and, provided that nothing shall be so construed as to deprive the owner of the actual value of the property taken.” It is apparent that the word “not” should have been in the charge between the word “property” and the word “taken” as shown in brackets. As previously held, this is an obvious slip of the tongue on the part of the trial court, and in view of the full and complete charges relating to the question of damages and the assessment of consequential damages contained elsewhere in the charge, it is our opinion that the jury could not have been misled into awarding to the condemnee consequential damages to the property taken. It follows, therefore, that the trial judge did not err in overruling the motion for new trial of the condemnor.

Decided November 23, 1964. Harold Sheats, George Gillon, T. Charles Allen, for plaintiff in error. Jones, Bird & Howell, Earle B. May, Jr., Robert L. Foreman, Jr., contra.

The former judgment of reversal is vacated and the judgment of the trial court is hereby

Affirmed.

Felton, C. J., and Frankum, J., concur.