(Code 1981, §24-7-701, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)
Cross references.- Opinion testimony by lay witnessess, Fed. R. Evid. 701.
Law reviews.- For article analyzing Georgia business entries provisions, see 4 Mercer L. Rev. 313 (1953). For annual survey of evidence law, see 56 Mercer L. Rev. 235 (2004); 57 Mercer L. Rev. 187 (2005); and 58 Mercer L. Rev. 151 (2006). For annual 11th Circuit survey of evidence law, see 56 Mercer L. Rev. 1273 (2005); and 57 Mercer L. Rev. 1083 (2006). For note on admissibility of expert psychological testimony in Georgia, see 4 Ga. St. U.L. Rev. 117 (1988). For comment on Caldwell v. State, 82 Ga. App. 480, 61 S.E.2d 543 (1950), see 14 Ga. B.J. 241 (1951). For comment on Corley v. Russell, 92 Ga. App. 417, 88 S.E.2d 470 (1955), holding that the opinion of an expert is inadmissible in a negligence action, as that is the very issue the jury is impaneled to try, see 18 Ga. B.J. 338 (1956). For comment on Northwestern Univ. v. Crisp, 211 Ga. 636, 88 S.E.2d 26 (1955), concerning the admissibility of lay opinions regarding the sanity of a testator, see 19 Ga. B.J. 82 (1956). For comment discussing the use of hypothetical questions to avoid the requirements of first-hand knowledge, see 19 Ga. B.J. 346 (1957). For comment on Western & A.R.R. v. Hart, 95 Ga. App. 810, 99 S.E.2d 302 (1957), holding that the accuracy of the opinion of a 12-year-old as to the speed of a train is a matter for the jury to decide and its admission into evidence was not error, see 20 Ga. B.J. 395 (1958). For comment on Hoard v. Wiley, 113 Ga. App. 328, 147 S.E.2d 782 (1966), see 3 Ga. St. B.J. 476 (1967). For comment on Hoard v. Wiley, 113 Ga. App. 328, 147 S.E.2d 782 (1966), see 3 Ga. St. B.J. 476 (1967).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1868, § 3811, former Code 1873, § 3867, former Code 1882, § 3867, former Civil Code 1895, § 5285, former Penal Code 1895, § 1021, former Penal Code 1910, § 1047, former Civil Code 1910, §§ 5874, 5875, former Code 1933, §§ 38-1708, 38-1709, and former O.C.G.A. §§ 24-9-65 and24-9-66 are included in the annotations for this Code section.
In general.
- Class of questions here referred to must be such as lie within the range of common opinion, that is, an opinion which is supposed to be within the common knowledge, experience, and education of men. Cone v. Davis, 66 Ga. App. 229, 17 S.E.2d 849 (1941) (decided under former Code 1933, § 38-1708).
Former Code 1933, § 38-1710 (see former O.C.G.A. § 24-9-67) dealt with science, skill, trade, or like questions, in which matters experts may give their opinion based on facts as proved by other witnesses, but former Code 1933, § 38-1703 (see O.C.G.A. now § 24-7-701) dealt with opinions of lay witnesses. Mills v. State, 71 Ga. App. 353, 30 S.E.2d 824 (1944) (decided under former Code 1933, § 38-1708).
Former statute plainly referred to two separate and distinct situations, and declares different rules in reference thereto: (1) when the question under examination and to be decided by the jury shall be one of opinion; and (2) when the issue shall be as to the existence of a fact. Barron v. Chamblee, 199 Ga. 591, 34 S.E.2d 828 (1945) (decided under former Code 1933, § 38-1708).
Whether a question calls for a legal conclusion or principally a fact which incidentally involves a legal word or phrase is within the sound discretion of the trial court. Gage v. Tiffin Motor Homes, Inc., 153 Ga. App. 704, 266 S.E.2d 345 (1980) (decided under former Code 1933, § 38-1708).
History.
- Former statute was but a compendium of the common law. Central R.R. & Banking Co. v. Kelly, 58 Ga. 107 (1877) (decided under former Code 1873, § 3867).
Duty of trial court.
- Determination as to whether a witness has established sufficient opportunity for forming a correct opinion or has stated a proper basis for expressing an opinion is for the trial court. DOT v. McLaughlin, 163 Ga. App. 1, 292 S.E.2d 435, cert. denied, 250 Ga. 10, 297 S.E.2d 217 (1982), overruled on other grounds, 264 Ga. 393, 444 S.E.2d 734 (1994) (decided under former O.C.G.A. § 24-9-65).
Witness's opinion must be witness's own and the witness cannot act as a mere conduit for the opinions of others. Stephen W. Brown Radiology Assocs. v. Gowers, 157 Ga. App. 770, 278 S.E.2d 653 (1981) (decided under former O.C.G.A. § 24-9-65).
Qualifying words.
- An answer of a witness is not to be struck out because the witness qualified the witness's statement of fact by such statements as "I would judge," and "I think," nor because the witness used the word "opinion," since, from the context, the witness was merely qualifying the witness's statement of fact. Faucette v. State, 71 Ga. App. 331, 30 S.E.2d 808 (1944) (decided under former Code 1933, § 38-1708).
Plaintiff may not establish variance from standard of care in medical or legal malpractice cases without expert opinion testimony from which the jury could determine malpractice. This latter requirement is properly a prerequisite for the submission of a case to the jury. Savannah Valley Prod. Credit Ass'n v. Cheek, 248 Ga. 745, 285 S.E.2d 689 (1982) (decided under former O.C.G.A. § 24-9-65).
Status of witness as lay or expert goes not to admissibility, but credibility. McLelland v. State, 203 Ga. App. 93, 416 S.E.2d 340, cert. denied, 203 Ga. App. 907, 416 S.E.2d 340 (1992) (decided under former O.C.G.A. § 24-9-65).
Weight of opinion evidence is matter for jury.
- Probative value and weight to be given the evidence and the credibility of the witness are matters to be determined by the jury. Blackman v. State, 80 Ga. 785, 7 S.E. 626 (1888) (decided under former Code 1882, § 3867); Caswell v. State, 5 Ga. App. 583, 63 S.E. 566 (1909); Glover v. State, 15 Ga. App. 44, 82 S.E. 602 (1914) (decided under former Penal Code 1895, § 1021); Hayes v. State, 16 Ga. App. 20, 84 S.E. 497 (1915); Bugg v. State, 17 Ga. App. 211, 86 S.E. 405 (1915) (decided under former Penal Code 1910, § 1047); Hansberger Motor Transp. Co. v. Pate, 51 Ga. App. 877, 181 S.E. 796 (1935); Simmons v. Simmons, 194 Ga. 649, 22 S.E.2d 399 (1942) (decided under former Penal Code 1910, § 1047); Mills v. State, 71 Ga. App. 353, 30 S.E.2d 824 (1944); Barron v. Chamblee, 199 Ga. 591, 34 S.E.2d 828 (1945) (decided under former Code 1933, § 38-1708); Barnes v. Thomas, 72 Ga. App. 827, 35 S.E.2d 364 (1945); Ford Motor Co. v. Hanley, 128 Ga. App. 311, 196 S.E.2d 454 (1973) (decided under former Code 1933, § 38-1708); Galloway v. Banks County, 139 Ga. App. 649, 229 S.E.2d 127 (1976); Tam v. Newsome, 141 Ga. App. 76, 232 S.E.2d 613 (1977) (decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708).
Jury instructions.
- In the absence of a timely written request, the mere fact that opinion evidence was introduced does not require an instruction as to the weight of such evidence. Fountain v. Smith, 103 Ga. App. 192, 118 S.E.2d 852 (1961) (decided under former Code 1933, § 38-1708); Vandable v. State, 127 Ga. App. 306, 193 S.E.2d 197 (1972);(decided under former Code 1933, § 38-1708).
Harmless error.
- Expression of the opinion of a witness amounting to conclusion is harmless since there is ample evidence to support the inference. Jones v. State, 75 Ga. App. 610, 44 S.E.2d 174 (1947) (decided under former Code 1933, § 38-1708).
Statement not an opinion.
- Building contractor was not asked to give contractor's opinion but was asked for the contractor's impression, i.e., the contractor's understanding, of what a bid was to be based upon. This evidence was properly admitted to explain the contractor's future conduct and show contractor's understanding of the parties' oral agreement. Carco Supply Co. v. Clem, 194 Ga. App. 566, 391 S.E.2d 134 (1990) (decided under former O.C.G.A. § 24-9-65).
Investigator's testimony that early in the interrogation the defendant was playing games and did not want to give the police the full truth was admissible as the challenged evidence was not inadmissible opinion evidence under former O.C.G.A. § 24-9-65, but was relevant as to why the interview lasted several hours in response to a defense implication that the defendant was subjected to an overly burdensome interrogation. Jordan v. State, 293 Ga. 619, 748 S.E.2d 876 (2013)(decided under former O.C.G.A. § 24-9-65).
Question not eliciting opinion.
- State's question to victim's mother as to whether she believed victim's earlier allegation that she was molested by her natural father did not elicit inadmissible opinion evidence, and did not constitute impermissible bolstering of victim's credibility. Yebra v. State, 206 Ga. App. 12, 424 S.E.2d 318 (1992), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019) (decided under former O.C.G.A. § 24-9-65).
Cited in State v. Cooper, 324 Ga. App. 32, 749 S.E.2d 35 (2013); Sure, Inc. v. Premier Petroleum, Inc., 343 Ga. App. 219, 807 S.E.2d 19 (2017).
Opinion Testimony Admissible
1. In General
Admissibility generally.
- Opinion testimony is admissible when the question under examination is one of opinion. Alexander v. State, 118 Ga. 26, 44 S.E. 851 (1903) (decided under former Civil Code 1895, § 5285); Klein v. State, 104 Ga. App. 126, 121 S.E.2d 253 (1961); Security Life Ins. Co. v. Blitch, 155 Ga. App. 167, 270 S.E.2d 349 (1980) (decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708).
Opinions, even expert opinions, are allowed by way of exception to the general rule that a witness is to give facts observed, but not the expert's conclusions from those facts, and opinions are to be allowed only when there is real helpfulness or necessity to resort to the opinions. Barnes v. Thomas, 72 Ga. App. 827, 35 S.E.2d 364 (1945) (decided under former Code 1933, § 38-1708).
Testimony which in the main is a mere statement of fact may be admitted, even though it rests to a certain extent on the application of legal principles. Gage v. Tiffin Motor Homes, Inc., 153 Ga. App. 704, 266 S.E.2d 345 (1980) (decided under former Code 1933, § 38-1708).
Defendant failed to show that defense counsel rendered ineffective assistance, in violation of U.S. Const., amend. 6, on the basis that counsel did not object when one of the victims testified that defendant stabbed the victim on purpose and not by accident, as there was no support for the proposition that such a statement was inadmissible opinion testimony under former O.C.G.A. § 24-9-65; even if it were deemed inadmissible, no prejudice was shown to defendant. Brown v. State, 275 Ga. App. 99, 619 S.E.2d 789 (2005) (decided under former O.C.G.A. § 24-9-65).
State of mind or mental condition generally.
- Person's state of mind or mental condition is properly the subject of opinion testimony, and after narrating the facts and circumstances upon which the person's conclusion is based, a nonexpert witness may express the witness's opinion as to the state of mind or mental condition of another. O'Kelley v. State, 175 Ga. App. 503, 333 S.E.2d 838 (1985) (decided under former O.C.G.A. § 24-9-65).
Evidence not challenged.
- An opinionative statement of a witness, even though it was a conclusion unsupported by such facts as were necessary to show its correctness, when no objection was urged thereto upon the trial, cannot be challenged for the first time upon review as incompetent and insufficient. Bailey v. Newberry, 52 Ga. App. 693, 184 S.E. 357 (1935) (decided under former Code 1933, § 38-1708); Johnson v. Woodward Lumber Co., 76 Ga. App. 152, 45 S.E.2d 294 (1947); Gazaway v. Secured Ins. Co., 109 Ga. App. 428, 136 S.E.2d 531 (1964) (decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708).
After providing supporting facts.
- Witness may give witness's belief or opinion when it is in connection with, and a mental deduction from, the facts which come within the witness's knowledge and to which the witness has testified. McGinnis v. State, 31 Ga. 236 (1860) (decided under former law); Executors of Riggins v. Brown, 12 Ga. 271 (1862); Macon & W.R.R. v. Johnson, 38 Ga. 409 (1868) (decided under former law); Ryder v. State, 100 Ga. 528, 28 S.E. 246, 62 Am. St. R. 334, 38 L.R.A. 721 (1897); Yates v. State, 127 Ga. 813, 56 S.E. 1017 (1907) (decided under former Code 1868, § 3811); Cranshaw v. Schweizer Mfg. Co., 1 Ga. App. 363, 58 S.E. 222 (1907); Glover v. State, 129 Ga. 717, 59 S.E. 816 (1907) (decided under former Penal Code 1895, § 1021); Ray v. State, 142 Ga. 655, 83 S.E. 518 (1914); Bennett v. American Bank & Trust Co., 162 Ga. 718, 134 S.E. 781 (1926) (decided under former Penal Code 1895, § 1021); Hill v. State, 50 Ga. App. 191, 177 S.E. 270 (1934); Roberts v. Hardin, 180 Ga. 757, 180 S.E. 634 (1935) (decided under former Civil Code 1895, § 5285); Musselwhite v. Ricks, 55 Ga. App. 58, 189 S.E. 597 (1936); Pollard v. Page, 56 Ga. App. 503, 193 S.E. 117 (1937) (decided under former Penal Code 1895, § 1021); Morgan v. Bell, 189 Ga. 432, 5 S.E.2d 897 (1939); Faucette v. State, 71 Ga. App. 331, 30 S.E.2d 808 (1944) (decided under former Penal Code 1910, § 1047); Mills v. State, 71 Ga. App. 353, 30 S.E.2d 824 (1944); Barron v. Chamblee, 199 Ga. 591, 34 S.E.2d 828 (1945) (decided under former Civil Code 1910, § 5847); Beasley v. Burt, 201 Ga. 144, 39 S.E.2d 51 (1946); Sellers v. Johnson, 207 Ga. 166, 60 S.E.2d 352 (1950) (decided under former Code 1933, § 38-1708); McGahee v. Phillips, 211 Ga. 118, 84 S.E.2d 19 (1954); Atlantic Coast Line R.R. v. Godard, 211 Ga. 373, 86 S.E.2d 311 (1955) (decided under former Code 1933, § 38-1708); 93 Ga. App. 671, 92 S.E.2d 626 (1956); Adams v. Adams, 213 Ga. 875, 102 S.E.2d 566 (1958) (decided under former Code 1933, § 38-1708); Jones v. State, 101 Ga. App. 851, 115 S.E.2d 576 (1960); Wright v. Concrete Co., 107 Ga. App. 190, 129 S.E.2d 351 (1962) (decided under former Code 1933, § 38-1708); English v. Shivers, 220 Ga. 737, 141 S.E.2d 443 (1965); Atlanta Stove Works, Inc. v. Hollon, 112 Ga. App. 862, 146 S.E.2d 358 (1965) (decided under former Code 1933, § 38-1708); Sasser v. Coastal States Life Ins. Co., 113 Ga. App. 17, 147 S.E.2d 5 (1966); Southern Ry. v. Grogan, 113 Ga. App. 451, 148 S.E.2d 439 (1966) (decided under former Code 1933, § 38-1708); Griffin v. State, 123 Ga. App. 820, 182 S.E.2d 498 (1971); Lashley v. Ford Motor Co., 359 F. Supp. 363 (M.D. Ga. 1972) (decided under former Code 1933, § 38-1708); 480 F.2d 158 (5th Cir.); 414 U.S. 1072, 94 S. Ct. 585, 38 L. Ed. 2d 478 (1973) (decided under former Code 1933, § 38-1708); State Hwy. Dep't v. Raines, 129 Ga. App. 123, 199 S.E.2d 96 (1973); Spencer v. State, 236 Ga. 697, 224 S.E.2d 910 (decided under former Code 1933, § 38-1708); 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 302 (1976); Galloway v. Banks County, 139 Ga. App. 649, 229 S.E.2d 127 (1976) (decided under former Code 1933, § 38-1708); Gaines v. DOT, 140 Ga. App. 741, 231 S.E.2d 829 (1976); Allen v. State, 152 Ga. App. 481, 263 S.E.2d 259 (1979) (decided under former Code 1933, § 38-1708); Security Life Ins. Co. v. Blitch, 155 Ga. App. 167, 270 S.E.2d 349 (1980); Classic Restorations, Inc. v. Bean, 155 Ga. App. 694, 272 S.E.2d 557 (1980), later appeal, Leonard v. State, 157 Ga. App. 37, 276 S.E.2d 94 (1981) (decided under former Code 1933, § 38-1708); Peterson v. RTM Mid-America, Inc., 209 Ga. App. 691, 434 S.E.2d 521 (1993);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);aff'd,cert. denied,(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);cert. denied,(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former O.C.G.A. § 24-9-65);(decided under former O.C.G.A. § 24-9-65).
When facts cannot be demonstrated.
- Opinion of a nonexpert witness may be received in evidence if the witness observed the matter in issue and cannot adequately state or recite the data so fully and accurately as to put the jury completely in the witness's place and enable them to equally well draw the inference. Pride v. State, 133 Ga. 438, 66 S.E. 259 (1909) (decided under former Penal Code 1895, § 1021); Taylor v. State, 135 Ga. 622, 70 S.E. 237 (1911); Jackson v. State, 148 Ga. 519, 97 S.E. 525 (1918) (decided under former Civil Code 1910, § 5874); Jefferson v. State, 56 Ga. App. 383, 192 S.E. 644 (1937); Harris v. State, 188 Ga. 745, 4 S.E.2d 651 (1939) (decided under former Civil Code 1910, § 5874); Tillman v. State, 61 Ga. App. 724, 7 S.E.2d 285 (1940); Mills v. State, 71 Ga. App. 353, 30 S.E.2d 824 (1944) (decided under former Code 1933, § 38-1708); Barron v. Chamblee, 199 Ga. 591, 34 S.E.2d 828 (1945); McGahee v. Phillips, 211 Ga. 118, 84 S.E.2d 19 (1954) (decided under former Code 1933, § 38-1708); Wilson v. Garrett, 92 Ga. App. 820, 90 S.E.2d 74 (1955); Atlantic Coast Line R.R. v. Blount, 116 Ga. App. 86, 156 S.E.2d 409 (1967) (decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708).
Opinions from lay witnesses.
- Lay witnesses may relate their opinions as to the existence of a fact so long as the opinions are based upon the witnesses' own observations, provided that the witnesses cannot adequately relate those observations without also relating a personal opinion formed through such observations. Johnson v. Knebel, 267 Ga. 853, 485 S.E.2d 451 (1997) (decided under former O.C.G.A. § 24-9-65).
2. Specific Examples
Appearance and conduct.
- See Perdue v. State, 135 Ga. 277, 69 S.E. 184 (1910) (decided under former Penal Code 1910, § 1047); Leonard v. State, 157 Ga. App. 37, 276 S.E.2d 94 (1981); Roberts v. State, 232 Ga. App. 745, 503 S.E.2d 614 (1998) (decided under former O.C.G.A. § 24-9-65); Thompson v. State, 240 Ga. App. 26, 521 S.E.2d 876 (1999);(decided under former O.C.G.A. § 24-9-65);(decided under former O.C.G.A. § 24-9-65).
Trial court properly admitted a witness's testimony about the witness's observations of defendant's appearance and behavior and the assumptions that the witness made based upon such observations; the witness was not asked to, nor did the witness, express an opinion about whether defendant shot either or both of the victims or whether defendant possessed a firearm during the commission of any felony. Harris v. State, 279 Ga. 304, 612 S.E.2d 789 (2005) (decided under former O.C.G.A. § 24-9-65).
Cause of collision.
- See Avant Trucking Co. v. Stallion, 159 Ga. App. 198, 283 S.E.2d 7 (1981) (decided under former Code 1933, § 38-1708).
Cause of death.
- See Everett v. State, 62 Ga. 65 (1878) (decided under former Code 1873, § 3867); McLain v. State, 71 Ga. 279 (1883); Lanier v. State, 141 Ga. 17, 80 S.E. 5 (1913) (decided under former Code 1882, § 3867); Bullard v. Metropolitan Life Ins. Co., 31 Ga. App. 641, 122 S.E. 75 (1924);(decided under former Penal Code 1910, § 1047);(decided under former Civil Code 1910, § 5874).
Correctional officer's testimony.
- With regard to a defendant's habeas corpus challenge to a finding that the defendant was not mentally retarded, a trial court did not err in the admission of the testimony of a correctional officer, who was called by the state to testify regarding the defendant's behavior while incarcerated with regard to testimony that the defendant was not housed in the area of the institution with those inmates the officer had been told were mentally retarded, as the officer's testimony was relevant to the issue of the defendant's adaptive skills and was not unduly prejudicial because the officer clarified that the officer was not diagnosing anyone. The testimony also did not constitute an impermissible lay opinion because the officer was never asked for, nor did the officer ever give, an opinion as to the ultimate issue, namely whether the defendant was or was not mentally retarded. Rogers v. State, 282 Ga. 659, 653 S.E.2d 31 (2007), cert. denied, 552 U.S. 1311, 128 S. Ct. 1882, 170 L. Ed. 2d 747, reh'g denied, 554 U.S. 930, 128 S. Ct. 2988, 171 L. Ed. 2d 907 (2008), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020) (decided under former O.C.G.A. § 24-9-65).
Officer's identification of defendant in social media photographs.
- Trial court did not abuse the court's discretion in allowing an officer to identify the defendant in the social media photographs presented at trial because the officer established years of familiarity with the defendant, and that the officer became familiar with the defendant in the officer's capacity as a law enforcement officer, or even in the officer's capacity as a gang expert, did not prevent the officer from providing identification testimony as a lay witness. Bullard v. State, 307 Ga. 482, 837 S.E.2d 348 (2019).
Damages.
- See Atlanta S.R.R. v. Walker, 93 Ga. 462, 21 S.E. 48 (1893) (decided under former Code 1882, § 3867); City Elec. Ry. v. Smith, 121 Ga. 663, 49 S.E. 724 (1905);(decided under former Civil Code 1895, § 5285).
Owners failed to present competent evidence of damages under O.C.G.A. § 11-2-714(2) because an owner's affidavit lacked a proper foundation as the owner failed to testify that any of the owner's past purchases included the purchase of a vehicle with the defects at issue, the owner did not have any specialized knowledge, and the owner's testimony was not supported by objective information on vehicles found in published valuation guides, such as the "Blue Book"; the value of the defective vehicle could not be established by the repair invoices as few, if any, of the repairs reflected costs incurred by the owners. Hill v. Mercedes-Benz USA, LLC, 274 Ga. App. 826, 619 S.E.2d 353 (2005) (decided under former O.C.G.A. § 24-9-65).
Trial court erred in entering summary judgment for a manufacturer on the owners' claim for damages due to the diminished value of a vehicle since the owner's opinion as to the diminished value of the vehicle was supported by: (1) experience in purchasing three other cars; (2) familiarity with information relating to the value of the vehicle; (3) research into the manufacturer's cars; (4) discussions as to price and features with several dealerships; (5) knowledge and familiarity with the vehicle and the vehicle's defects acquired over a three-year time period; and (6) use of the car, the car's mileage, and purchase price. Hill v. Mercedes Benz USA, LLC, 274 Ga. App. 826, 619 S.E.2d 353 (2005) (decided under former O.C.G.A. § 24-9-65).
Dangerousness.
- Testimony of a golf course architect as to the dangerousness of a golf cart path was the architect's opinion and was admissible as such. American Golf Corp. v. Manley, 222 Ga. App. 7, 473 S.E.2d 161 (1996) (decided under former O.C.G.A. § 24-9-65).
Defendant's actions not accidental.
- Any error in allowing a police officer to testify to the officer's opinion that defendant did not accidentally accelerate and hit another officer's car was harmless as the officer could properly testify that defendant could have escaped without driving straight at the other officer and the officer's car, and there was ample evidence to support the officer's opinion as two officers testified that defendant accelerated straight toward the officer and the officer's car, even though there was room for defendant to drive away without hitting the officer's car, a videotape was played for the jury, and there was testimony that the videotape showed that when defendant accelerated, defendant aimed defendant's car straight toward the officer and the officer's car. Lopez v. State, 267 Ga. App. 178, 598 S.E.2d 898 (2004) (decided under former O.C.G.A. § 24-9-65).
Distance.
- See Hansberger Motor Transp. Co. v. Pate, 51 Ga. App. 877, 181 S.E. 796 (1935) (decided under former Code 1933, § 38-1708).
Divorce.
- See West v. West, 199 Ga. 378, 34 S.E.2d 545 (1945) (decided under former Code 1933, § 38-1708).
Driving too fast for conditions testimony from expert.
- In a personal injury case brought against a driver, a police officer, testifying as an expert on automobile collisions, stated in response to a hypothetical question that the driver was driving too fast for conditions if the driver was driving 55 miles per hour. As the officer did not offer an ultimate opinion as to whether the driver was at fault in the accident or was negligent, the officer's testimony was admissible. Kennebeck v. Glover, 294 Ga. App. 822, 670 S.E.2d 459 (2008) (decided under former O.C.G.A. § 24-9-65).
Deputy's testimony on steering of vehicle.
- Despite the deputy's testimony concerning the deputy's general training, the deputy simply made layperson observations concerning the codefendant's inability to maneuver the vehicle while protruding from the driver's window and shooting at the deputy. That testimony was based upon the deputy's personal observations during the pursuit, was helpful to determine whether the defendant participated in the codefendant's crimes, and was not necessarily based on any particular specialized knowledge. Best v. State, Ga. App. , 846 S.E.2d 157 (2020).
Embarrassment.
- See Glover v. State, 15 Ga. App. 44, 82 S.E. 602 (1914) (decided under former Civil Code 1910, § 5874).
Excitement and alarm.
- See Roberts v. State, 123 Ga. 146, 51 S.E. 374 (1905) (decided under former Penal Code 1895, § 1021).
Defense requiring expert testimony.
- While the defendant was correct that in 2013 there was no pre-trial notice requirement when an insanity-type defense, such as involuntary intoxication, was to be pursued exclusively through lay witnesses, the defense depended on more than lay-witness testimony as the defendant intended to call an emergency-department physician who treated the defendant on the night of the defendant's arrest; and the anticipated purpose of the physician's testimony was in exploring what testing the physician ordered, what substances the physician did not test for, and whether the defendant could have been on those substances, which required scientific or specialized knowledge, and veered into the realm of expert-witness testimony. McKelvin v. State, 305 Ga. 39, 823 S.E.2d 729 (2019).
Expert witnesses.
- See Hook v. Stovall, Dunn & Co., 30 Ga. 418 (1860) (decided under former law); Allison v. Wall, 121 Ga. 822, 49 S.E. 831 (1905); Morgan v. Bell, 189 Ga. 432, 5 S.E.2d 897 (1939) (decided under former Civil Code 1895, § 5285); State Hwy. Dep't v. Parker, 114 Ga. App. 270, 150 S.E.2d 875 (1966); Lingo v. State, 224 Ga. 333, 162 S.E.2d 1 (decided under former Code 1933, § 38-1708); 393 U.S. 992, 89 S. Ct. 467, 21 L. Ed. 2d 455 (1968); Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981) (decided under former Code 1933, § 38-1708);cert. denied,(decided under former Code 1933, § 38-1708);(decided under former O.C.G.A. § 24-9-65).
Expert on similarly situated driver.
- In a spouse's wrongful death suit against the Georgia Department of Transportation, the trial court did not err by allowing the spouse's expert to testify as to whether a driver in the victim's position could discern that the victim was approaching a more major road and would therefore be required to yield. In light of the witness's familiarity with the intersection gained during a site visit, as well as the photographs presented, it could not be said that the trial court abused the court's discretion in allowing the witness to testify as to a similarly-situated driver's opportunity to discern the nature of the upcoming intersection. DOT v. Baldwin, 292 Ga. App. 816, 665 S.E.2d 898 (2008) (decided under former O.C.G.A. § 24-9-65).
Fair trial issue.
- See Jones v. State, 101 Ga. App. 851, 115 S.E.2d 576 (1960) (decided under former Code 1933, § 38-1708).
Gunshot wounds.
- See Nunn v. State, 143 Ga. 451, 85 S.E. 346 (1915) (decided under former Penal Code 1910, § 1047); Harris v. State, 74 Ga. App. 614, 40 S.E.2d 664 (1946);(decided under former Code 1933, § 38-1708).
Trial counsel was not ineffective for failing to object that the investigating detective improperly opined that the defendant had shot the defendant's self in the leg while fleeing the crime scene as the detective's lay opinion was rationally based on inferences the detective formed from a review of the evidence and the detective's prior observations of gunshot wounds, which did not require scientific, technical, or other specialized knowledge; and the detective's testimony was helpful in determining how the defendant was injured on the night of the crime. Harris v. State, Ga. , S.E.2d (Aug. 24, 2020).
Health of witness.
- See Head v. Georgia Power Co., 70 Ga. App. 32, 27 S.E.2d 339 (1943) (decided under former Code 1933, § 38-1708).
Hearsay.
- See Hiatt v. State, 133 Ga. App. 111, 210 S.E.2d 22 (1974) (decided under former Code 1933, § 38-1708).
Hypothetical questions.
- See Taylor v. Warren, 175 Ga. 800, 166 S.E. 225 (1932) (decided under former Civil Code 1910, § 5874); Lingo v. State, 224 Ga. 333, 162 S.E.2d 1; 393 U.S. 992, 89 S. Ct. 467, 21 L. Ed. 2d 455 (1968), cert. denied, Lashley v. Ford Motor Co., 359 F. Supp. 363 (M.D. Ga. 1972) (decided under former Code 1933, § 38-1708); 480 F.2d 158 (5th Cir.); 414 U.S. 1072, 94 S. Ct. 585, 38 L. Ed. 2d 478 (1973), aff'd, Bowers v. State, 153 Ga. App. 894, 267 S.E.2d 309 (1980), cert. denied, Xiong v. Landford, 226 Ga. App. 126, 485 S.E.2d 534 (1997) (decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former O.C.G.A. § 24-9-65).
Identity.
- Under former O.C.G.A. § 24-9-65, a lay witness who had been a friend of the defendant's for 22 years could give an opinion as to whether the defendant was the person pictured in a videotape. The quality of the videotape and still photos taken from the videotape was such that it was not within the ability of average jurors to decide the issue for themselves; the witness testified that the defendant's appearance had changed in the four years between the recording and the trial; and the witness's testimony was based on the witness's personal observations of the defendant over the years. Dawson v. State, 283 Ga. 315, 658 S.E.2d 755 (2008), cert. denied, 129 S. Ct. 169, 172 L. Ed. 2d 122 (2008) (decided under former O.C.G.A. § 24-9-65).
Trial court did not abuse its discretion in admitting a deputy's lay opinion testimony identifying the defendant on a surveillance videotape because the deputy's testimony was sufficient to identify the defendant as the perpetrator of the crime pursuant to former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8), and the testimony was probative of a fact in issue and based on the deputy's observations of the defendant at the time the surveillance photograph was taken; because the deputy testified to having previously worked at the police department and had met the defendant on several occasions, the deputy was in a unique position to recognize the defendant, given the deputy's familiarity with the defendant's personal appearance before and at the time of the offense. Strickland v. State, 302 Ga. App. 44, 690 S.E.2d 638 (2010) (decided under former O.C.G.A. § 24-9-65).
In a malice murder case, the trial court did not err in denying the defendant's motion in limine to exclude testimony by lay witnesses identifying the defendant as one of the perpetrators in the video surveillance from the motel parking lot and photographs because the video recording was of such poor quality that the average juror would not be able to distinguish the faces by themselves; the witnesses, who had known the defendant prior to the crime, were in a better position to correctly identify the defendant in the video than the jurors; and the identification testimony of the defendant's ex-girlfriend was required to identify the defendant in the video as the defendant's appearance had changed since the time of the crime. Glenn v. State, 302 Ga. 276, 806 S.E.2d 564 (2017).
Trial court did not abuse the court's discretion in denying the defendant's motion in limine and allowing a lay witness statement identifying the defendant in a video because of the poor quality of the recording and the fact that the lay witness had known the defendant prior to the crimes and was familiar with the defendant's appearance. Glenn v. State, 306 Ga. 550, 832 S.E.2d 433 (2019).
Identification by victim through use of videotape.
- In the defendant's trial for the armed robbery of three taxi drivers, the trial court did not err in allowing one victim to identify the defendant from videos from other taxis under O.C.G.A. § 24-7-701 because the defendant had grown a beard at the time of trial, and the driver testified that the driver recognized and memorized voices as a result of the driver's job and that the driver recognized the man in the videos as the man who robbed the driver. Rice v. State, 351 Ga. App. 96, 830 S.E.2d 429 (2019), cert. denied, No. S19C1434, 2020 Ga. LEXIS 66 (Ga. 2020).
Identity of material.
- See Faucette v. State, 71 Ga. App. 331, 30 S.E.2d 808 (1944) (decided under former Code 1933, § 38-1708); Wortham v. State, 158 Ga. App. 19, 279 S.E.2d 287 (1981); Wright v. State, 220 Ga. App. 233, 469 S.E.2d 381 (1996) (decided under former O.C.G.A. § 24-9-65);(decided under former O.C.G.A. § 24-9-65).
Intoxication.
- See Pierce v. State, 53 Ga. 365 (1874) (decided under former Code 1873, § 3867); Suggs v. State, 9 Ga. App. 830, 72 S.E. 287 (1911); Grier v. State, 72 Ga. App. 633, 34 S.E.2d 642 (1945) (decided under former Penal Code 1910, § 1047); Fountain v. Smith, 103 Ga. App. 192, 118 S.E.2d 852 (1961);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708).
When the plaintiff sued the defendant for expenses and damages that the plaintiff and the plaintiff's daughter incurred as a result of an accident, the trial court did not abuse the court's discretion in allowing a witness's opinion testimony because the witness's opinion that the defendant was impaired was helpful to understand the witness's testimony that the witness recommended to the responding officer that the officer perform a toxicology screen on the defendant; and because the witness's opinion was based on the witness's personal observations that the defendant was driving erratically prior to the accident. Dagne v. Schroeder, 336 Ga. App. 36, 783 S.E.2d 426 (2016).
Mental condition.
- See Dennis v. Weekes, 51 Ga. 24 (1874) (decided under former Code 1873, § 3867); Strickland v. State, 137 Ga. 115, 72 S.E. 922 (1911); Goss v. State, 14 Ga. App. 402, 81 S.E. 247 (1914) (decided under former Penal Code 1910, § 1047); Dyar v. Dyar, 161 Ga. 615, 131 S.E. 535 (1926); Taylor v. Warren, 175 Ga. 800, 166 S.E. 225 (1932) (decided under former Penal Code 1910, § 1047); Morgan v. Bell, 189 Ga. 432, 5 S.E.2d 897 (1939); Espy v. Preston, 199 Ga. 608, 34 S.E.2d 705 (1945) (decided under former Civil Code 1910, § 5874); Jarrard v. State, 206 Ga. 112, 55 S.E.2d 706 (1949); English v. Shivers, 220 Ga. 737, 141 S.E.2d 443 (1965) (decided under former Civil Code 1910, § 5874); Lingo v. State, 224 Ga. 333, 162 S.E.2d 1; 393 U.S. 992, 89 S. Ct. 467, 21 L. Ed. 2d 455 (1968) (decided under former Code 1933, § 38-1708); Dix v. State, 238 Ga. 209, 232 S.E.2d 47 (1977); Currelley v. State, 145 Ga. App. 29, 243 S.E.2d 307 (1978) (decided under former Code 1933, § 38-1708); Moses v. State, 245 Ga. 180, 263 S.E.2d 916 (1980); Nagel v. State, 262 Ga. 888, 427 S.E.2d 490 (1993) (decided under former Code 1933, § 38-1708); Leonard v. State, 157 Ga. App. 37, 276 S.E.2d 94 (1981);(decided under former Code 1933, § 38-1708);cert. denied,(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);overruled on other grounds,(decided under former O.C.G.A. § 24-9-65);(decided under former O.C.G.A. § 24-9-65).
In a transfer hearing, a child's mental condition may be established by the testimony of a nonexpert witness, such as a court services worker, provided the witness gives sufficient facts and circumstances to establish the basis for the witness's opinion. L.K.F. v. State, 173 Ga. App. 770, 328 S.E.2d 394 (1985) (decided under former O.C.G.A. § 24-9-65).
Odor identification.
- See Green v. State, 125 Ga. 742, 54 S.E. 724 (1906) (decided under former Penal Code 1895, § 1021).
Personal injury damages.
- See Black & White Cab Co. v. Clark, 67 Ga. App. 170, 19 S.E.2d 570 (1942) (decided under former Code 1933, § 38-1708); Moore v. Graham, 221 Ga. App. 616, 472 S.E.2d 152 (1996);(decided under former O.C.G.A. § 24-9-65).
Quality of product.
- See Wilcox v. State, 8 Ga. App. 536, 69 S.E. 1086 (1911) (decided under former Penal Code 1910, § 1047).
Rape.
- See Epps v. State, 216 Ga. 606, 118 S.E.2d 574, cert. denied, 368 U.S. 849, 82 S. Ct. 81, 7 L. Ed. 2d 47 (1961) (decided under former Code 1933, § 38-1708).
Sanity.
- See Henderson v. State, 157 Ga. App. 621, 278 S.E.2d 164 (1981) (decided under former O.C.G.A. § 24-9-65).
Size.
- See Dorsey v. Clements, 202 Ga. 820, 44 S.E.2d 783 (1947) (decided under former O.C.G.A. § 24-9-65).
Shoe size is matter within the common knowledge, experience, and education of mankind. Buchanan v. State, 168 Ga. App. 365, 308 S.E.2d 860 (1983) (decided under former O.C.G.A. § 24-9-65).
Solvency or insolvency.
- See Crawford v. Andress, 6 Ga. 244 (1849) (decided under former law); Cabaniss v. State, 8 Ga. App. 129, 68 S.E. 849 (1910); Spence v. State, 20 Ga. App. 61, 92 S.E. 555 (decided under former Penal Code 1910, § 1047); 20 Ga. App. 832 (1917); Lamb v. Sewell, 20 Ga. App. 250, 92 S.E. 1011 (1917), cert. denied, Gay v. Smith, 51 Ga. App. 615, 181 S.E. 129 (1935) (decided under former Penal Code 1910, § 1047); Bell v. State, 52 Ga. App. 249, 183 S.E. 93 (1935); Hill v. Kirk, 78 Ga. App. 310, 50 S.E.2d 785 (1948) (decided under former Penal Code 1910, § 1047); Western & Atl. R.R. v. Hart, 95 Ga. App. 810, 99 S.E.2d 302 (1957); Hatcher v. State, 175 Ga. App. 768, 334 S.E.2d 709 (1985) (decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former O.C.G.A. § 24-9-65).
Speed.
- Layman's opinion of speed is admissible when the layman has testified to the facts upon which the opinion is based. Wright v. State, 205 Ga. App. 149, 421 S.E.2d 331 (1992) (decided under former O.C.G.A § 24-9-65).
In a wrongful death and negligence action, in which the decedent was riding a motorcycle when the decedent collided with an automobile occupied by the defendants, the trial court did not err in allowing witnesses to testify about their estimates of the motorcycle's speed because their opinions were based on their experience riding motorcycles, their experience hearing and seeing motorcycles being ridden at high rates of speed, and the manner in which the decedent's motorcycle passed the witnesses' vehicles and crested hills. Clack v. Hasnat, 354 Ga. App. 502, 841 S.E.2d 210 (2020).
Stopping distance of vehicle.
- See Fouts v. Builders Transp., Inc., 222 Ga. App. 568, 474 S.E.2d 746 (1996) (decided under former O.C.G.A § 24-9-65).
Trial court did not err in admitting the testimony of the retired police officer as to the police officer's opinion about the most reliable means of suspect identification as that testimony, which was lay opinion testimony, was based on the police officer's own experience and observations, and referred to a matter within the scope of the average juror's knowledge. Dillingham v. State, 275 Ga. 665, 571 S.E.2d 777 (2002) (decided under former O.C.G.A. § 24-9-65).
Testimony from school counselor in sexual offense case.
- In an action for child molestation, aggravated child molestation, and aggravated sexual battery, the trial court did not err in finding that the school counselor's testimony was admissible as lay opinion evidence because the school counselor offered opinions based on first-hand knowledge and observations as a member of the Latino community and a counselor for at-risk Latino youths and the testimony would be helpful to the jury in judging the victim's credibility and was not based on scientific, technical, or specialized knowledge. Martinez-Arias v. State, Ga. App. , 846 S.E.2d 448 (2020).
Time.
- See Allison v. Wall, 121 Ga. 822, 49 S.E. 831 (1905) (decided under former Civil Code 1895, § 5285); Georgia Ry. & Power Co. v. Belote, 20 Ga. App. 454, 93 S.E. 62 (1917);(decided under former Civil Code 1910, § 5874).
Ultimate issue.
- See Morgan v. Bell, 189 Ga. 432, 5 S.E.2d 897 (1939) (decided under former Code 1933, § 38-1708); Weather Bros. Transf. Co. v. Jarrell, 72 Ga. App. 317, 33 S.E.2d 805 (1945); Galloway v. Banks County, 139 Ga. App. 649, 229 S.E.2d 127 (1976) (decided under former Code 1933, § 38-1708); Security Life Ins. Co. v. Blitch, 155 Ga. App. 167, 270 S.E.2d 349 (1980);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708).
Trial court did not err in allowing the witnesses in defendant's trial for possession of illegal gambling machines to testify that the machines were "gambling devices," as the jury had to determine whether defendant sold a machine that detectives testified was set up for gambling to a witness, who then sold it to the detectives, and whether that machine was illegal under O.C.G.A. § 16-12-20(2); describing the machines the detectives seized as "gambling machines" did not answer those questions. Jones v. State, 276 Ga. App. 810, 625 S.E.2d 4 (2005) (decided under former O.C.G.A § 24-9-65).
At the defendant's murder trial, the witnesses' opinion testimony that the defendant had killed the victims was rationally based on the witnesses' perception and helpful to understanding the witnesses' testimony, and therefore was admissible under O.C.G.A. § 24-7-701; even if the witnesses' opinion addressed an ultimate issue, the testimony was not objectionable under O.C.G.A. § 24-7-704(a). One witness saw the defendant with the victims shortly before the victims were killed, and the defendant told the other that the defendant had "offed them boys." Grier v. State, 305 Ga. 882, 828 S.E.2d 304 (2019).
Undue influence.
- See Howell v. Howell, 59 Ga. 145 (1877) (decided under former Code 1873, § 3867).
Unusual or special situation.
- See Allison v. Wall, 121 Ga. 822, 49 S.E. 831 (1905) (decided under former Civil Code 1895, § 5285).
Value.
- See Ferguson v. Bank of Dawson, 50 Ga. App. 604, 179 S.E. 236 (1935) (decided under former Code 1933, § 38-1708); Simmons v. Simmons, 194 Ga. 649, 22 S.E.2d 399 (1942); Firemen's Ins. Co. v. Allmond, 105 Ga. App. 763, 125 S.E.2d 545 (1962) (decided under former Code 1933, § 38-1708); State Hwy. Dep't v. Parker, 114 Ga. App. 270, 150 S.E.2d 875 (1966); Edwards v. State, 116 Ga. App. 80, 156 S.E.2d 518 (1967) (decided under former Code 1933, § 38-1708); Johnson v. Rooks, 116 Ga. App. 394, 157 S.E.2d 527 (1967); Sisk v. Carney, 121 Ga. App. 560, 174 S.E.2d 456 (1970) (decided under former Code 1933, § 38-1708); Nelson v. Cheek, 127 Ga. App. 31, 192 S.E.2d 504 (1972); Hasty v. Meaders, 130 Ga. App. 62, 202 S.E.2d 263 (1973) (decided under former Code 1933, § 38-1708); Hiatt v. State, 133 Ga. App. 111, 210 S.E.2d 22 (1974); Clark v. Peck, 134 Ga. App. 868, 216 S.E.2d 687 (1975) (decided under former Code 1933, § 38-1708); Gaines v. DOT, 140 Ga. App. 741, 231 S.E.2d 829 (1976); Ricker v. Hopkins Chevrolet, Inc., 147 Ga. App. 358, 248 S.E.2d 720 (1978) (decided under former Code 1933, § 38-1708); Citizens & S. Nat'l Bank v. Williams, 147 Ga. App. 205, 249 S.E.2d 289 (1978); DOT v. Brown, 155 Ga. App. 622, 271 S.E.2d 876 (1980) (decided under former Code 1933, § 38-1708); Four Oaks Properties, Inc. v. Carusi, 156 Ga. App. 422, 274 S.E.2d 783 (1980); Maddox v. State, 157 Ga. App. 696, 278 S.E.2d 480 (1981) (decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former O.C.G.A § 24-9-65).
In a condemnation proceeding, in which the land owner maintained that the land's highest and best use was as a wetlands mitigation bank, while the land owner's president had no specific expertise in wetlands mitigation, the owner's 30 years experience in real estate development and the owner's familiarity with the land's topography and hydrology qualified the owner to give an opinion as to its value as a mitigation bank. DOT v. Southeast Timberlands, Inc., 263 Ga. App. 805, 589 S.E.2d 575 (2003) (decided under former O.C.G.A § 24-9-65).
Value of trust assets.
- Probate court did not err in allowing a co-executor's husband to testify to an opinion about the value of real property contributed to the trust investments at issue because one need not be an expert or dealer in the article in question to testify to its value if an opportunity for forming a correct opinion has been had, and the husband had testified that to the familiarity with the properties at issue and with comparable properties, which were considered in reaching the opinion. In re Estate of Hubert, 325 Ga. App. 276, 750 S.E.2d 511 (2013).
Visibility.
- See Carnes v. Woodall, 233 Ga. App. 797, 505 S.E.2d 537 (1998) (decided under former O.C.G.A § 24-9-65).
Opinion Testimony Not Admissible
1. In General
Intent or purpose contrary to statute.
- Witness may not state a purpose or an intended result of a levy, seizure, and notice which purpose or intended result is contrary to the provisions of a plain statute, or constructions thereof which have been made by the courts. Summer v. Allison, 127 Ga. App. 217, 193 S.E.2d 177 (1972) (decided under former Code 1933, § 38-1708).
Existence of a fact.
- When the issue shall be to the existence of a fact, opinions generally are inadmissible. Jones v. State, 101 Ga. App. 851, 115 S.E.2d 576 (1960) (decided under former Code 1933, § 38-1708).
Conclusion cannot be based on hearsay statements.
- Police officer who investigates an accident cannot base the officer's opinion as to the manner in which the accident occurred upon hearsay statements which the officer receives during an investigation unless the statements are a part of the res gestae. Avant Trucking Co. v. Stallion, 159 Ga. App. 198, 283 S.E.2d 7 (1981) (decided under former O.C.G.A § 24-9-65).
Conclusions.
- It is error to permit a witness over timely objection to testify to a conclusion. Hammock v. McBride, 6 Ga. 178 (1849) (decided under former law); Franklin v. Mayor of Macon, 12 Ga. 257 (1852); Parker v. Chambers, 24 Ga. 518 (1858) (decided under former law); Howell v. Howell, 59 Ga. 145 (1877); Atlanta Masonic Temple Co. v. City of Atlanta, 162 Ga. 244, 133 S.E. 864 (1926) (decided under former law); Central of Ga. Ry. v. Evans, 35 Ga. App. 438, 134 S.E. 122 (1926); Granger v. National Convoy & Trucking Co., 62 Ga. 294, 7 S.E.2d 915 (1940) (decided under former Code 1873, § 3867); Cooper v. State, 197 Ga. 611, 30 S.E.2d 177 (1944); Sanders v. Chandler, 71 Ga. App. 337, 30 S.E.2d 813 (1944) (decided under former Civil Code 1910, § 5874); Jones v. State, 75 Ga. App. 610, 44 S.E.2d 174 (1947); Brown-Rogers-Dixson Co. v. Southern Ry., 79 Ga. App. 449, 53 S.E.2d 702 (1949) (decided under former Civil Code 1910, § 5874); Central of Ga. Ry. v. Brower, 106 Ga. App. 340, 127 S.E.2d 33; 218 Ga. 525, 128 S.E.2d 926 (1962) (decided under former Code 1933, § 38-1708); State Hwy. Dep't v. Raines, 129 Ga. App. 123, 199 S.E.2d 96 (1973); Marshall v. State, 154 Ga. App. 327, 268 S.E.2d 383 (1980) (decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);rev'd on other grounds,(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708).
Witness cannot state witness's mere conclusion that others than the witness know a fact. Summer v. Allison, 127 Ga. App. 217, 193 S.E.2d 177 (1972) (decided under former Code 1933, § 38-1708).
Witness cannot state a mere conclusion that others than the witness knew a particular fact since it is not established that the witness was qualified to testify as to the knowledge of others. Marshall v. State, 154 Ga. App. 327, 268 S.E.2d 383 (1980) (decided under former Code 1933, § 38-1708).
Witness invading province of jury.
- Witness cannot state an opinion or conclusion where the data or facts are such that a jury can make the jury's own calculation or conclusions. Blackman v. State, 80 Ga. 785, 7 S.E. 626 (1888) (decided under former Code 1882, § 3867); Robinson v. State, 128 Ga. 254, 57 S.E. 315 (1907); Caswell v. State, 5 Ga. App. 483, 63 S.E. 566 (1909) (decided under former Penal Code 1895, § 1021); Glover v. State, 15 Ga. App. 44, 82 S.E. 602 (1914); Hayes v. State, 16 Ga. App. 20, 84 S.E. 497 (1915) (decided under former Penal Code 1895, § 1021); Bugg v. State, 17 Ga. App. 211, 86 S.E. 405 (1915); Hansberger Motor Transp. Co. v. Pate, 51 Ga. App. 877, 181 S.E. 796 (1935) (decided under former Penal Code 1910, § 1047); Harris v. State, 188 Ga. 245, 4 S.E.2d 651 (1939); Whatley v. Henry, 65 Ga. App. 668, 16 S.E.2d 214 (1941) (decided under former Penal Code 1910, § 1047); Simmons v. Simmons, 194 Ga. 649, 22 S.E.2d 399 (1942); Mills v. State, 71 Ga. App. 353, 30 S.E.2d 824 (1944) (decided under former Penal Code 1910, § 1047); Barron v. Chamblee, 199 Ga. 591, 34 S.E.2d 828 (1945); Barnes v. Thomas, 72 Ga. App. 827, 35 S.E.2d 364 (1945) (decided under former Code 1933, § 38-1708); McGahee v. Phillips, 211 Ga. 118, 84 S.E.2d 19 (1954); Klein v. State, 104 Ga. App. 126, 121 S.E.2d 253 (1961) (decided under former Code 1933, § 38-1708); Gazaway v. Secured Ins. Co., 109 Ga. App. 428, 136 S.E.2d 531 (1964); Ford Motor Co. v. Hanley, 128 Ga. App. 311, 196 S.E.2d 454 (1973) (decided under former Code 1933, § 38-1708); Galloway v. Banks County, 139 Ga. App. 649, 229 S.E.2d 127 (1976); Tam v. Newsome, 141 Ga. App. 76, 232 S.E.2d 613 (1977) (decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708).
2. Specific Examples
Accident victims.
- In an action against the Georgia Department of Transportation alleging negligent placement of safety devices at an intersection, the trial court properly excluded the testimony of a judge who was injured in an accident at an intersection located in the same road construction project where the plaintiffs' family members died, because the judge's accident occurred at a different intersection and the judge was not familiar with the intersection where the plaintiffs' family members died. McCorkle v. DOT, 257 Ga. App. 397, 571 S.E.2d 160 (2002) (decided under former O.C.G.A. § 24-9-65).
Conclusion of law.
- See Morgan v. Bell, 189 Ga. 432, 5 S.E.2d 897 (1939) (decided under former Code 1933, § 38-1708); Wells v. State, 151 Ga. App. 416, 260 S.E.2d 374 (1979); Gage v. Tiffin Motor Homes, Inc., 153 Ga. App. 704, 266 S.E.2d 345 (1980) (decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708).
While a sheriff deputy's opinion that the defendant's string of harassing phone messages amounted to aggravated stalking in violation of a protective order was inadmissible testimony on an ultimate issue, the error was harmless given the defendant's own testimony establishing the elements of the offense without dispute. Shafer v. State, 285 Ga. App. 748, 647 S.E.2d 274 (2007), cert. denied, No. S07C1498, 2007 Ga. LEXIS 642 (Ga. 2007) (decided under former O.C.G.A. § 24-9-65).
Conspiracy.
- See Mercer v. Woodard, 166 Ga. App. 119, 303 S.E.2d 475 (1983) (decided under former O.C.G.A. § 24-9-65).
Contents of bottles.
- See Gales v. State, 14 Ga. App. 450, 81 S.E. 364 (1914) (decided under former Penal Code 1910, § 1047).
Damages.
- See Central R.R. & Banking Co. v. Kelly, 58 Ga. 107 (1877) (decided under former Code 1873, § 3867); Carter v. Carter Elec. Co., 156 Ga. 297, 119 S.E. 737 (1923);(decided under former Civil Code 1910, § 5874).
Experts.
- Opinion of an expert accident reconstructionist was not admissible as lay testimony since the expert testified that it was based upon the expert's study of photographs of damaged cars; since the same photographs were before the jury, it was not necessary for the witness to relate the witness's personal opinion in order to adequately relate that information. Johnson v. Knebel, 267 Ga. 853, 485 S.E.2d 451 (1997) (decided under former O.C.G.A. § 24-9-65).
Expert opinion inadmissible as supporting facts not yet in record.
- Trial court correctly ruled that a psychologist could not testify that at the time the defendant committed several crimes the defendant did not know right from wrong because the defendant was under the influence of the drug GHB because at the time the defendant sought to present that testimony, there was no evidence that the defendant had actually ingested the drug or was under the drug's influence. Kirkland v. State, 292 Ga. App. 73, 663 S.E.2d 408 (2008) (decided under former O.C.G.A. § 24-9-65).
Hair analysis results cannot be used to make positive identification of an individual. Hudson v. State, 166 Ga. App. 660, 305 S.E.2d 409 (1983) (decided under former O.C.G.A. § 24-9-65).
In rape prosecution, defendant cannot ask victim's mother whether she believed daughter's statements about the offense or could tell her daughter was lying from her body language. Nichols v. State, 221 Ga. App. 600, 473 S.E.2d 491 (1996) (decided under former O.C.G.A. § 24-9-65).
Inference from facts in testimony of others.
- See Hook v. Stovall, Dunn & Co., 30 Ga. 418 (1860) (decided under former law); Southern Mut. Ins. Co. v. Hudson, 113 Ga. 434, 38 S.E. 964 (1901); Taylor v. Warren, 175 Ga. 800, 166 S.E. 225 (1932) (decided under former Civil Code 1895, § 5285); Murray v. State, 201 Ga. 201, 39 S.E.2d 842 (1946); Jones v. State, 75 Ga. App. 610, 44 S.E.2d 174 (1947) (decided under former Civil Code 1910, § 5874);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708).
Inference requiring mixture of law and fact. Gage v. Tiffin Motor Homes, Inc., 153 Ga. App. 704, 266 S.E.2d 345 (1980) (decided under former Code 1933, § 38-1708); Security Life Ins. Co. v. Blitch, 155 Ga. App. 167, 270 S.E.2d 349 (1980);(decided under former Code 1933, § 38-1708).
Intent of deceased.
- See Hudgins v. State, 2 Ga. 173 (1847) (decided under former law); Hawkins v. State, 25 Ga. 207, 71 Am. Dec. 166 (1858);(decided under former law).
Intent or purpose of another.
- See Summer v. Allison, 127 Ga. App. 217, 193 S.E.2d 177 (1972) (decided under former Code 1933, § 38-1708).
Lay opinions.
- Trial court did not err when the court did not permit a defense witness to give opinion testimony regarding an experiment the witness conducted at the scene of the crime because the issue of the visibility of the bulge produced by an object placed under carpeting since the defendant allegedly hid a murder weapon at the scene of the crime was not one of opinion. Jones v. State, 277 Ga. 36, 586 S.E.2d 224 (2003) (decided under former O.C.G.A. § 24-9-65).
Because the personal opinions of three potential witnesses were based on the defendant's work, and the limited interactions attendant thereto, and the witnesses could not offer any opinion and had no personal knowledge of the defendant's general reputation in the community, the failure to call the witnesses at trial for that purpose did not prejudice defendant's case. Thomas v. State, 282 Ga. 894, 655 S.E.2d 599 (2008) (decided under former O.C.G.A. § 24-9-65).
Measurement of missing article.
- See Williams v. State, 145 Ga. 177, 88 S.E. 958 (1916) (decided under former Penal Code 1910, § 1047).
Mental condition.
- See Morgan v. Bell, 189 Ga. 432, 5 S.E.2d 897 (1939) (decided under former Code 1933, § 38-1708); Livingston v. Barnett, 193 Ga. 640, 19 S.E.2d 385 (1942); McGahee v. Phillips, 211 Ga. 118, 84 S.E.2d 19 (1954) (decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708).
Paranoia.
- Since paranoia is a medical term relating to a mental disorder, only a qualified expert such as a psychiatrist, psychologist, or medical doctor would be competent to diagnose and define such a mental disorder. Ellis v. State, 168 Ga. App. 757, 309 S.E.2d 924 (1983) (decided under former O.C.G.A. § 24-9-65).
Proving opinions of others.
- See Wynes v. State, 182 Ga. 434, 185 S.E. 711 (1936) (decided under former Code 1933, § 38-1708).
Self-defense.
- On a trial for murder, as to the defendant's theory of self-defense, apprehensions or opinions of third parties, that the accused is in imminent danger, are not relevant. But facts from which apprehension might reasonably be inferred, as distinct from opinions, are relevant when stated or shown by third parties. Lancaster v. State, 250 Ga. 871, 301 S.E.2d 882 (1983) (decided under former O.C.G.A. § 24-9-65).
Suicide.
- See Trammell v. State, 18 Ga. App. 487, 89 S.E. 606 (1916) (decided under former Civil Code 1910, § 5874).
"Understanding" of ownership.
- See Brooks v. State, 19 Ga. App. 3, 90 S.E. 989 (1916) (decided under former Penal Code 1910, § 1047).
Ultimate issue.
- See Morgan v. Bell, 189 Ga. 432, 5 S.E.2d 897 (1939) (decided under former Code 1933, § 38-1708); Security Life Ins. Co. v. Blitch, 155 Ga. App. 167, 270 S.E.2d 349 (1980);(decided under former Code 1933, § 38-1708).
Witness's medical condition.
- Any statement of "opinion" made by or attributed to a nonexpert workers' compensation claimant which was to the effect that the claimant's CT scan of October 1983 (which was not in evidence) may have showed a second herniated disc at L4 was nonprobative hearsay as to that purported fact. Under former O.C.G.A. § 24-9-65, lay opinions must be based upon facts, not hearsay. Fidelity & Cas. Ins. Co. v. Cigna/Pacific Employers Ins. Co., 180 Ga. App. 159, 348 S.E.2d 702 (1986) (decided under former O.C.G.A. § 24-9-65).
Market Value Evidence
"Market value" defined.
- What is meant by market value of property is what it will bring when sold for cash by a person ready and willing to sell, but under no obligation to sell, and when bought by a person ready and willing to buy, but under no obligation to buy. Housing Auth. v. Spink, 91 Ga. App. 72, 85 S.E.2d 80 (1954) (decided under former Code 1933, § 38-1709).
Duty of trial court.
- Determination as to whether a witness has established sufficient opportunity for forming a correct opinion or has stated a proper basis for expressing an opinion is for the trial court. DOT v. McLaughlin, 163 Ga. App. 1, 292 S.E.2d 435, cert. denied, 250 Ga. 10, 297 S.E.2d 217 (1982), overruled on other grounds, 264 Ga. 393, 444 S.E.2d 734 (1994) (decided under former O.C.G.A. § 24-9-66).
1. Determination of Market Value
In general.
- Opinion evidence is admissible when it is necessary for the jury to determine the reasonable value of services or property. Allison v. Wall, 121 Ga. 822, 49 S.E. 831 (1905) (decided under former Civil Code 1895, § 5285).
Market value may be established by either direct or circumstantial evidence. Grant v. Dannals, 87 Ga. App. 389, 74 S.E.2d 119 (1953) (decided under former Code 1933, § 38-1708); Citizens & S. Nat'l Bank v. Williams, 147 Ga. App. 205, 249 S.E.2d 289 (1978);(decided under former Code 1933, § 38-1708).
Question of value is a matter of opinion under former O.C.G.A. § 24-9-66, and as to questions of opinion, the witness may swear to the witness's opinion or belief, giving the witness's reasons therefor. Maddox v. State, 157 Ga. App. 696, 278 S.E.2d 480 (1981) (decided under former O.C.G.A. § 24-9-66).
Hearsay evidence.
- See Garner v. Gwinnett County, 105 Ga. App. 714, 125 S.E.2d 563 (1962) (decided under former Code 1933, § 38-1709); Hiatt v. State, 133 Ga. App. 111, 210 S.E.2d 22 (1974); Gibbs v. Clay, 137 Ga. App. 381, 224 S.E.2d 46 (1976) (decided under former Code 1933, § 38-1709); Dickens v. Adams, 137 Ga. App. 564, 224 S.E.2d 468 (1976); Burch v. Lawrence, 150 Ga. App. 351, 258 S.E.2d 35 (1979) (decided under former Code 1933, § 38-1709); Toney v. Johns, 153 Ga. App. 880, 267 S.E.2d 298 (1980); Apostle v. Prince, 158 Ga. App. 56, 279 S.E.2d 304 (1981) (decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former O.C.G.A. § 24-9-66).
Market value may rest wholly or in part upon hearsay, provided the witness has had an opportunity of forming a correct opinion. B & L Serv. Co. v. Gerson, 167 Ga. App. 679, 307 S.E.2d 262 (1983) (decided under former O.C.G.A. § 24-9-66).
Debtor's testimony, standing alone, was insufficient under former O.C.G.A. § 24-9-66 to establish the fair and reasonable value of the debtor's car at the time the car was repossessed because the trial court was authorized to conclude that the debtor's "opinion" testimony about the value of the car two years earlier was based entirely upon hearsay and that, absent any evidence to show that the hearsay was reliable, the debtor failed to demonstrate a sufficient foundation for the debtor's conclusions; the debtor had no education or experience in the value of vehicles and the debtor presented no evidence of the price the debtor paid for the car, the condition of the car at the time the car was repossessed, the potential market for such cars, or other relevant factors to be considered in reaching a conclusion about the car's value. Sevostiyanova v. Tempest Recovery Servs., 307 Ga. App. 868, 705 S.E.2d 878 (2011) (decided under former O.C.G.A. § 24-9-66).
It is peculiarly within the province of the jury to determine market value. National Ben Franklin Fire Ins. Co. v. Purvis, 61 Ga. App. 674, 7 S.E.2d 296 (1940) (decided under former Code 1933, § 38-1709); Simmons v. Simmons, 194 Ga. 649, 22 S.E.2d 399 (1942); Grant v. Dannals, 87 Ga. App. 389, 74 S.E.2d 119 (1953) (decided under former Code 1933, § 38-1709); Hayes v. O'Shield Buick Co., 94 Ga. App. 177, 94 S.E.2d 44 (1956); Youngblood v. Ruis, 96 Ga. App. 290, 99 S.E.2d 714 (1957) (decided under former Code 1933, § 38-1709); Dalon Contracting Co. v. Artman, 101 Ga. App. 828, 115 S.E.2d 377 (1960); Smith v. Fidelity Fed. Sav. & Loan Ass'n, 149 Ga. App. 730, 256 S.E.2d 43 (1979) (decided under former Code 1933, § 38-1709); Varnedoe v. Singleton, 154 Ga. App. 332, 268 S.E.2d 387 (1980); Murdock v. Godwin, 154 Ga. App. 824, 269 S.E.2d 905 (1980) (decided under former Code 1933, § 38-1709); DOT v. Brown, 155 Ga. App. 622, 271 S.E.2d 876 (1980);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709).
Jury question as to weight of value evidence.
- When defendants contended that plaintiff's testimony as to the value of plaintiff's motor vehicle was without the proper foundation and had no probative value, but plaintiff had related plaintiff's knowledge and familiarity with classic type vehicles, described the condition of the vehicle, and introduced photographs of the damage to the vehicle, it was held that after the plaintiff gave the basis for plaintiff's opinion, the weight and credibility of the testimony was for the jury, and since the witness had an opportunity for forming a correct opinion, the evidence was sufficient for the jury's consideration. Long v. Marion, 182 Ga. App. 361, 355 S.E.2d 711, aff'd, 257 Ga. 431, 360 S.E.2d 255 (1987) (decided under former O.C.G.A. § 24-9-66).
Qualification of witnesses.
- Competency of a witness to testify an opinion of market value is a matter for the discretion of the trial court. Central Ga. Power Co. v. Cornwell, 139 Ga. 1, 76 S.E. 387, 1914A Ann. Cas. 880 (1912) (decided under former Civil Code 1910, § 5874); Haas & Howell v. Godby, 33 Ga. App. 218, 125 S.E. 897 (1924); 33 Ga. App. 829 (1925), cert. denied, McDuffie County v. Gunn, 50 Ga. App. 198, 177 S.E. 363 (1934) (decided under former Civil Code 1910, § 5874); United States ex rel. TVA v. Phillips, 50 F. Supp. 454 (N.D. Ga. 1943); Dickens v. Adams, 137 Ga. App. 564, 224 S.E.2d 468 (1976) (decided under former Code 1933, § 38-1708); DOT v. Great S. Enters., Inc., 137 Ga. App. 710, 225 S.E.2d 80 (1976);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708).
It is not a ground for objection to testimony that a witness, after testifying to a fact, testifies on cross-examination to facts that tend to show that the witness knows little or nothing about the facts as to which the witness previously testified on direct examination. Toney v. Johns, 153 Ga. App. 880, 267 S.E.2d 298 (1980) (decided under former Code 1933, § 38-1709).
Some evidence of market value mandatory.
- There must be in evidence sufficient facts on which the jury may exercise the jury's own knowledge and ideas and draw a legitimate conclusion of market value. Grant v. Dannals, 87 Ga. App. 389, 74 S.E.2d 119 (1953) (decided under former Code 1933, § 38-1709); Mills v. Mangum, 111 Ga. App. 396, 141 S.E.2d 773 (1965); Nail v. Hiers, 116 Ga. App. 522, 157 S.E.2d 771 (1967) (decided under former Code 1933, § 38-1709); Citizens & S. Nat'l Bank v. Williams, 147 Ga. App. 205, 249 S.E.2d 289 (1978);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709).
As to items of a common nature, such as automobiles, a plaintiff need not offer any opinion evidence as to value, and so long as the evidence contains facts upon which the jury may legitimately exercise their own knowledge and ideas, the question of value is properly left to the jury. White v. Miller, 194 Ga. App. 816, 392 S.E.2d 30 (1990) (decided under former O.C.G.A. § 24-9-66).
Jurors are not absolutely bound by opinion testimony as to market value, even though it is not contradicted, as jurors may exercise their own judgment based on their own experience and knowledge and the evidence as a whole. Widincamp v. McCall, 25 Ga. App. 733, 104 S.E. 642 (1920) (decided under former Civil Code 1910, § 5875); Black v. Automatic Sprinkler Co., 35 Ga. App. 8, 131 S.E. 543 (1926); Bitting v. State, 165 Ga. 55, 139 S.E. 877 (1927) (decided under former Civil Code 1910, § 5875); Central of Ga. Ry. v. Cowart & Son, 38 Ga. App. 426, 144 S.E. 213 (1928); Watson v. Tompkins Chevrolet Co., 83 Ga. App. 440, 63 S.E.2d 681 (1951) (decided under former Civil Code 1910, § 5875); Grant v. Dannals, 87 Ga. App. 389, 74 S.E.2d 119 (1953); Hayes v. Carter, 91 Ga. App. 540, 86 S.E.2d 532 (1955) (decided under former Civil Code 1910, § 5875); Hayes v. O'Shield Buick Co., 94 Ga. App. 177, 94 S.E.2d 44 (1956); Youngblood v. Ruis, 96 Ga. App. 290, 99 S.E.2d 714 (1957) (decided under former Code 1933, § 38-1708); Dalon Contracting Co. v. Artman, 101 Ga. App. 828, 115 S.E.2d 377 (1960); J.A. Jones Constr. Co. v. Greenbriar Shopping Ctr., 332 F. Supp. 1336 (N.D. Ga. 1971) (decided under former Code 1933, § 38-1708); 461 F.2d 1269 (5th Cir. 1972); DOT v. Driggers, 150 Ga. App. 270, 257 S.E.2d 294 (1979) (decided under former Code 1933, § 38-1708); Smith v. Fidelity Fed. Sav. & Loan Ass'n, 149 Ga. App. 730, 256 S.E.2d 43 (1979); Murdock v. Godwin, 154 Ga. App. 824, 269 S.E.2d 905 (1980) (decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);aff'd,(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708).
Credibility of a witness is a matter to be weighed by the jury. Central Ga. Power Co. v. Cornwell, 139 Ga. 1, 76 S.E. 387, 1914A Ann. Cas. 880 (1912) (decided under former Civil Code 1910, § 5874); Haas & Howell v. Godby, 33 Ga. App. 218, 125 S.E. 897 (1924); 33 Ga. App. 829 (1925), cert. denied, McDuffie County v. Gunn, 50 Ga. App. 198, 177 S.E. 363 (1934) (decided under former Civil Code 1910, § 5874); Dickens v. Adams, 137 Ga. App. 564, 224 S.E.2d 468 (1976);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708).
Weight to be given opinion evidence of market value is a matter for the jury. Central Ga. Power Co. v. Cornwell, 139 Ga. 1, 76 S.E. 387, 1914A Ann. Cas. 880 (1912) (decided under former Civil Code 1910, § 5875); Anderson v. Anderson, 27 Ga. App. 513, 108 S.E. 907; 27 Ga. App. 835 (1921), cert. denied, Bitting v. State, 165 Ga. 55, 139 S.E. 877 (1927) (decided under former Civil Code 1910, § 5875); Central of Ga. Ry. v. Cowart & Son, 38 Ga. App. 426, 144 S.E. 213 (1928); Sutton v. State Hwy. Dep't, 103 Ga. App. 29, 118 S.E.2d 285 (1961) (decided under former Civil Code 1910, § 5875); Seaboard Coast Line R.R. v. Toole, 128 Ga. App. 24, 195 S.E.2d 282 (1973); Hiatt v. State, 133 Ga. App. 111, 210 S.E.2d 22 (1974) (decided under former Civil Code 1910, § 5875); Clark v. Peck, 134 Ga. App. 868, 216 S.E.2d 687 (1975); Gibbs v. Clay, 137 Ga. App. 381, 224 S.E.2d 46 (1976) (decided under former Code 1933, § 38-1708); Williams v. State, 246 Ga. App. 347, 540 S.E.2d 305 (2000);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former O.C.G.A. § 24-9-66).
Expert witnesses.
- Witness must be an expert, or must state a sufficient basis for testifying as to market value. Southern Cotton Oil Co. v. Overby, 136 Ga. 69, 70 S.E. 664 (1911) (decided under former Civil Code 1910, § 5875); Crump v. Knox, 18 Ga. App. 437, 89 S.E. 586 (1916); Fowler v. National City Bank, 49 Ga. App. 435, 176 S.E. 113 (1934) (decided under former Civil Code 1910, § 5875);(decided under former Code 1933, § 38-1709).
Expert's opinion as to what expert would pay for condemned land was probative of the land's fair market value and improperly excluded by the trial court. Jotin Realty Co. v. Department of Transp., 174 Ga. App. 809, 331 S.E.2d 605 (1985) (decided under former O.C.G.A. § 24-9-66).
Nonexpert witnesses.
- There was no requirement that officer be an expert in order to express the officer's opinion as to amount of damages inflicted to the officer's vehicle by defendant, provided the officer had had an opportunity for forming a correct opinion. Mallory v. State, 164 Ga. App. 569, 298 S.E.2d 290 (1982) (decided under former O.C.G.A. § 24-9-66).
To give an opinion on value, the nonexpert witness must supply reasons by showing knowledge, experience, or familiarity as to value. City of Alma v. Morris, 180 Ga. App. 420, 349 S.E.2d 277 (1986) (decided under former O.C.G.A. § 24-9-66).
Because an opinion rendered by a debtor's guarantor lacked probative value as to the valuation of the debtor-dry cleaner's equipment, as the guarantor was not in the business of owning and operating a dry cleaning business, such opinion was inadmissible as it amounted to nothing more than an unsupported conclusion or guess; thus, the debtor and its guarantors failed to rebut the bank's prima facie showing that the sale was commercially reasonable, and the trial court properly granted summary judgment on this ground. AKA Mgmt. v. Branch Banking & Trust Co., 275 Ga. App. 615, 621 S.E.2d 576 (2005) (decided under former O.C.G.A. § 24-9-66).
Given that both parties to a property dispute involving a house testified as to the home's value, including the appraisals, probative and non-hearsay evidence as to the value existed to support the jury's damages award such that the trial court erred in concluding otherwise and awarding a new trial on this basis. Perry v. Perry, 285 Ga. App. 892, 648 S.E.2d 193 (2007) (decided under former O.C.G.A. § 24-9-66).
Owner of property is considered to be qualified to state owner's opinion as to value. Maddox v. State, 157 Ga. App. 696, 278 S.E.2d 480 (1981) (decided under former O.C.G.A. § 24-9-66); Dixon v. Williams, 177 Ga. App. 702, 340 S.E.2d 286 (1986);(decided under former O.C.G.A. § 24-9-66).
Property owner need not be an expert to state an opinion as to the value of the owner's property, provided the owner can establish that the owner has had an opportunity for forming a correct opinion. Iffland v. Lancaster, 176 Ga. App. 449, 336 S.E.2d 350 (1985) (decided under former O.C.G.A. § 24-9-66).
There was no error by the trial court in admitting property owner's opinion testimony as to the fair market value of the damaged property before the fire where the owner had adequate opportunity to form a correct opinion as to the value of the items lost and the values to which the owner testified were those prior to the fire. Georgia Power Co. v. Hinson, 179 Ga. App. 263, 346 S.E.2d 73 (1986) (decided under former O.C.G.A. § 24-9-66).
Trial court did not err in allowing the sellers to testify as to the fair market value of their property in a promissory estoppel action because the owner was competent to form a correct opinion of the property's fair market value based on the financial records put into evidence. Rental Equip. Group, LLC v. Maci, LLC, 263 Ga. App. 155, 587 S.E.2d 364 (2003) (decided under former O.C.G.A. § 24-9-66).
Trial court did not err in ordering the defendant to pay the victim restitution after the defendant pled guilty to arson in the first degree because the trial court was authorized to find that the preponderance of the evidence showed that the victim owned the house at the time of the fire, and evidence was presented to show the cost of repairs and its relation to the value of the house prior to the fire, in accordance with the law of damages to real property; the evidence of the background of the victim, a real estate investor who repaired houses personally, provided some evidence to show that the investor had knowledge, experience, or familiarity with the cost of repairs, the value of real estate, and the extent of the damages to the investor's property pursuant to former O.C.G.A. § 24-9-66. Mayfield v. State, 307 Ga. App. 630, 705 S.E.2d 717 (2011) (decided under former O.C.G.A. § 24-9-66).
Manager's authority and breach of responsibility created issues of fact.
- Trial court did not err in denying a manager's motion for summary judgment as to the joint venturers' counterclaims for breach of contract and breach of the duty of good faith and fair dealing regarding its management of certain real estate because genuine issues of material fact existed as to whether the manager failed to meet the manager's contractual obligations to manage and control the business including acquiring, holding, maintaining, leasing, exchanging, and disposing of the properties owned. Maree v. ROMAR Joint Venture, 329 Ga. App. 282, 763 S.E.2d 899 (2014), overruled on other grounds by SRM Group, Inc. v. Travelers Prop. Cas. Co. of Am., 308 Ga. 404, 841 S.E.2d 729 (2020).
Foundation for opinion evidence required.
- Opinion evidence as to market value must be based upon a foundation that the witness has some experience or familiarity with, or knowledge other than mere general knowledge of, the value of the property or similar property, must have had an opportunity to form a correct opinion, and must give reasons for the value assessed. Southern Cotton Oil Co. v. Overby, 136 Ga. 69, 70 S.E. 664 (1911) (decided under former Civil Code 1910, § 5875); Central Ga. Power Co. v. Cornwell, 139 Ga. 1, 76 S.E. 387, 1914A Ann. Cas. 880 (1912); Crump v. Knox, 18 Ga. App. 437, 89 S.E. 586 (1916) (decided under former Civil Code 1910, § 5875); Anderson v. Anderson, 27 Ga. App. 513, 108 S.E. 907; 27 Ga. App. 835 (1921) (decided under former Civil Code 1910, § 5875); Bitting v. State, 165 Ga. 55, 139 S.E. 877 (1927); Central of Ga. Ry. v. Cowart & Son, 38 Ga. App. 426, 144 S.E. 213 (1928), cert. denied, Speir v. Westmoreland, 40 Ga. App. 302, 149 S.E. 422 (1929) (decided under former Civil Code 1910, § 5875); Georgia Power Co. v. Carson, 96 Ga. App. 612, 167 S.E. 902 (1933); Herrmann & Henican v. De La Perrier, 47 Ga. App. 541, 171 S.E. 232 (1933) (decided under former Civil Code 1910, § 5875); 56 Ga. App. 749, 194 S.E. 42 (1937); Fowler v. National City Bank, 49 Ga. App. 435, 176 S.E. 113 (1934) (decided under former Civil Code 1910, § 5875); Southern Ry. v. Thacker, 50 Ga. App. 706, 179 S.E. 225 (1935); Ferguson v. Bank of Dawson, 50 Ga. App. 604, 179 S.E. 236 (1935) (decided under former Civil Code 1910, § 5875); United States ex rel. TVA v. Phillips, 50 F. Supp. 454 (N.D. Ga. 1943); Grant v. Dannals, 87 Ga. App. 389, 74 S.E.2d 119 (1953) (decided under former Code 1933, § 38-1709); Housing Auth. v. Spink, 91 Ga. App. 72, 85 S.E.2d 80 (1954); Georgia R.R. & Banking Co. v. Flynt, 93 Ga. App. 514, 92 S.E.2d 330 (1956), later appeal, Hayes v. O'Shield Buick Co., 94 Ga. App. 177, 94 S.E.2d 44 (1956) (decided under former Code 1933, § 38-1709); Sutton v. State Hwy. Dep't, 103 Ga. App. 29, 118 S.E.2d 285 (1961); Mills v. Mangum, 111 Ga. App. 396, 141 S.E.2d 773 (1965) (decided under former Code 1933, § 38-1709); Hoard v. Wiley, 113 Ga. App. 328, 147 S.E.2d 782 (1966); Johnson v. Rooks, 116 Ga. App. 394, 157 S.E.2d 527 (1967) (decided under former Code 1933, § 38-1709); Nail v. Hiers, 116 Ga. App. 522, 157 S.E.2d 771 (1967); Sisk v. Carney, 121 Ga. App. 560, 174 S.E.2d 456 (1970) (decided under former Code 1933, § 38-1709); Lary v. Gilmer, 125 Ga. App. 604, 188 S.E.2d 432 (1972); Schoolcraft v. DeKalb County, 126 Ga. App. 101, 189 S.E.2d 915 (1972) (decided under former Code 1933, § 38-1709); Nelson v. Cheek, 127 Ga. App. 31, 192 S.E.2d 504 (1972); Seaboard Coast Line R.R. v. Toole, 128 Ga. App. 24, 195 S.E.2d 282 (1973) (decided under former Code 1933, § 38-1709); Abbott v. State, 130 Ga. App. 891, 205 S.E.2d 14 (1974); Hiatt v. State, 133 Ga. App. 111, 210 S.E.2d 22 (1974) (decided under former Code 1933, § 38-1709); Clark v. Peck, 134 Ga. App. 868, 216 S.E.2d 687 (1975); DeKalb County v. Queen, 135 Ga. App. 307, 217 S.E.2d 624 (1975) (decided under former Code 1933, § 38-1709); Hagin v. Powers, 140 Ga. App. 300, 231 S.E.2d 780 (1976); Canal Ins. Co. v. P & J Truck Lines, 145 Ga. App. 545, 244 S.E.2d 81 (decided under former Code 1933, § 38-1709); United Family Life Ins. Co. v. Shirley, 242 Ga. 235, 248 S.E.2d 635 (1978); Ricker v. Hopkins Chevrolet, Inc., 147 Ga. App. 358, 248 S.E.2d 720 (1978) (decided under former Code 1933, § 38-1709); Citizens & S. Nat'l Bank v. Williams, 147 Ga. App. 205, 249 S.E.2d 289 (1978); DOT v. Brand, 149 Ga. App. 547, 254 S.E.2d 873 (1979) (decided under former Code 1933, § 38-1709); Burch v. Lawrence, 150 Ga. App. 351, 258 S.E.2d 35 (1979); Cunningham v. Hodges, 150 Ga. App. 827, 258 S.E.2d 631 (1979) (decided under former Code 1933, § 38-1709); Toney v. Johns, 153 Ga. App. 880, 267 S.E.2d 298 (1980); Varnedoe v. Singleton, 154 Ga. App. 332, 268 S.E.2d 387 (1980) (decided under former Code 1933, § 38-1709); Orkin Exterminating Co. v. Thrift, 154 Ga. App. 545, 269 S.E.2d 53 (1980); Gunter v. State, 155 Ga. App. 176, 270 S.E.2d 224 (1980) (decided under former Code 1933, § 38-1709); Maddox v. State, 157 Ga. App. 696, 278 S.E.2d 480 (1981); Apostle v. Prince, 158 Ga. App. 56, 279 S.E.2d 304 (1981) (decided under former Code 1933, § 38-1709); Loethen v. State, 158 Ga. App. 469, 280 S.E.2d 878 (1981);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);overruled on other grounds sub nom.,(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former O.C.G.A. § 24-9-66);(decided under former O.C.G.A. § 24-9-66);(decided under former O.C.G.A. § 24-9-66).
Trial court did not err in refusing to allow the plaintiff to testify as to plaintiff's opinion of the value of an automobile destroyed in a collision since the plaintiff did not demonstrate any foundation of knowledge, experience, or familiarity on which an opinion of value could properly be based. White v. Miller, 194 Ga. App. 816, 392 S.E.2d 30 (1990) (decided under former O.C.G.A. § 24-9-66); GMAC v. Newton, 207 Ga. App. 700, 429 S.E.2d 120 (1993);(decided under former O.C.G.A. § 24-9-66).
Testimony that the witness is familiar with the value of the item in question is sufficient foundation.
- It is no ground for objection if thereafter on cross-examination the witness testifies as to facts which tend to show a lack of knowledge about the facts to which the witness previously testified on direct. City of Alma v. Morris, 180 Ga. App. 420, 349 S.E.2d 277 (1986) (decided under former O.C.G.A. § 24-9-66).
In an action by homeowners for negligent construction of their house, since the homeowners demonstrated no basis for the homeowners opinion as to value except that the homeowners doubted the house could be sold and to them they had not received what they bargained for and thus the house had no value to them, and later homeowners admitted they were not familiar with building costs or procedures, there was no rational basis for their value opinions, and the opinions could furnish no basis for the jury's consideration of value. Hutto v. Shedd, 181 Ga. App. 654, 353 S.E.2d 596 (1987) (decided under former O.C.G.A. § 24-9-66).
Pursuant to former O.C.G.A. § 24-9-66, direct testimony as to market value is in the nature of opinion evidence, and one need not be an expert or dealer but may testify as to the value of property if one has had an opportunity for forming a correct opinion; a creditor's testimony at a confirmation proceeding about the creditor's experience with the property at issue in a foreclosure sale, how much the creditor had invested in the property, how much the creditor borrowed against the property, the property's condition at the time of the foreclosure sale, and the creditor's opinion that the creditor bid the fair market value for the property, along with the testimony of one of the buyers and the tax appraisal, was sufficient to show the fair market value of the property at the time of the sale. McCain v. Galloway, 267 Ga. App. 505, 600 S.E.2d 449 (2004) (decided under former O.C.G.A. § 24-9-66).
Testimony of shareholder.
- Trial court did not err in refusing to allow a witness to testify as to the value of a riverboat after counsel argued that the witness was a shareholder in the company selling the vessel but no foundation was laid by counsel to elicit the witness's knowledge, experience, or familiarity with the value of the riverboat. North Ala. Enters., Inc. v. Cap'n Sam's Cruises, Inc., 181 Ga. App. 718, 353 S.E.2d 578 (1987) (decided under former O.C.G.A. § 24-9-66).
Prior jury verdict not admissible.
- Trial court abused the court's discretion in ruling that the prior jury verdict is admissible evidence since to give an opinion on value the witness must supply reasons by showing knowledge, experience, or familiarity as to value and there was no procedure by which the parties could question the jury in the prior case about the reasons for its opinion of the property's earlier value and the prior jury could not relate its opinion to the later value of the property. Clayton County Bd. of Tax Assessors v. Lake Spivey Golf Club, Inc., 207 Ga. App. 693, 428 S.E.2d 687 (1993) (decided under former O.C.G.A. § 24-9-66).
2. Application in Specific Cases
Automobile franchise.
- Although franchisee was not an expert or dealer, as a person experienced in this field with the opportunity to form a correct opinion, the franchisee was authorized to state the franchisee's opinion of the value of the various equipment and inventory as well as the profit or loss incurred on the sales of certain automobiles. Moore v. American Suzuki Motor Corp., 203 Ga. App. 189, 416 S.E.2d 807 (1992) (decided under former O.C.G.A. § 24-9-66).
Bridge.
- Trial court did not abuse the court's discretion in excluding, for insufficient foundation, a witness's opinion testimony concerning the cost to build a bridge over a waterway to cure trusts' lost usage after the condemnation of a ford over the waterway because the proffer the trusts made did not demonstrate pursuant to former O.C.G.A. § 24-9-66 a basis upon which the witness could have formed the witnesses own opinion on the cost to build the bridge apart from the single estimate the witness received; the trusts did not proffer that the witness obtained any other estimates concerning the cost to construct the bridge, spoke to anyone else about that cost, or possessed or sought to obtain any other information about that cost or about the accuracy of the estimate the witness received. Martha K. Wayt Trust v. City of Cumming, 306 Ga. App. 790, 702 S.E.2d 915 (2010) (decided under former O.C.G.A. § 24-9-66).
Confiscated drugs.
- When a crime laboratory chemist testified as to the basis for the chemist's estimate involving confiscated drugs, it was not necessary that the chemist be qualified as an expert. Robinson v. State, 203 Ga. App. 759, 417 S.E.2d 404, cert. denied, 203 Ga. App. 907, 417 S.E.2d 404 (1992) (decided under former O.C.G.A. § 24-9-66).
Assessment of property.
- See Hirsch v. Joint City County Bd. of Tax Assessors, 218 Ga. App. 881, 463 S.E.2d 703 (1995) (decided under former O.C.G.A. § 24-9-66); Hall County v. Merritt, 233 Ga. App. 526, 504 S.E.2d 754 (1998);(decided under former O.C.G.A. § 24-9-66).
In rendering expert opinions as to the market value of property subject to a condemnation proceeding, experts could properly consider hearsay statements made by a prior planning director for the local government to the effect that the government would work with the property's owner regarding rezoning the property. Unified Gov't v. Watson, 255 Ga. App. 1, 564 S.E.2d 453 (2002), aff'd, 276 Ga. 276, 577 S.E.2d 769 (2003) (decided under former O.C.G.A. § 24-9-66).
Defendant was properly sentenced for felony theft of aluminum tire rims based on lay testimony of the victim regarding their value because the victim had experience in buying and selling such rims, which gave the victim an opportunity to form a correct opinion as to the fair cash market value at the time and place of the theft. Perdue v. State, 300 Ga. App. 588, 685 S.E.2d 489 (2009) (decided under former O.C.G.A. § 24-9-66).
Houses.
- See Clark v. Peck, 134 Ga. App. 868, 216 S.E.2d 687 (1975) (decided under former Code 1933, § 38-1709); DeKalb County v. Queen, 135 Ga. App. 307, 217 S.E.2d 624 (1975);(decided under former Code 1933, § 38-1709).
Land.
- See Central Ga. Power Co. v. Cornwell, 139 Ga. 1, 76 S.E. 387, 1914A Ann. Cas. 880 (1912) (decided under former Civil Code 1910, § 5875); Birmingham Paper Co. v. Holder, 24 Ga. App. 630, 101 S.E. 692 (1919); Georgia Power Co. v. Carson, 46 Ga. App. 612, 167 S.E. 902 (1933) (decided under former Civil Code 1910, § 5875); McDuffie County v. Gunn, 50 Ga. App. 198, 177 S.E. 363 (1934); Housing Auth. v. Spink, 91 Ga. App. 72, 85 S.E.2d 80 (1954) (decided under former Code 1933, § 38-1709); Georgia R.R. & Banking Co. v. Flynt, 93 Ga. App. 514, 92 S.E.2d 330 (1956); Schoolcraft v. DeKalb County, 126 Ga. App. 101, 189 S.E.2d 915 (1972) (decided under former Code 1933, § 38-1709); DOT v. Brown, 155 Ga. App. 622, 271 S.E.2d 876 (1980);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709).
Mobile homes.
- See First Fed. Sav. & Loan Ass'n v. Jones, 173 Ga. App. 356, 326 S.E.2d 554 (1985) (decided under former O.C.G.A. § 24-9-66).
Motor vehicles.
- See Grant v. Dannals, 87 Ga. App. 389, 74 S.E.2d 119 (1953) (decided under former Code 1933, § 38-1708); Nail v. Hiers, 116 Ga. App. 522, 157 S.E.2d 771 (1967); Ricker v. Hopkins Chevrolet, Inc., 147 Ga. App. 358, 248 S.E.2d 720 (1978) (decided under former Code 1933, § 38-1708); Burch v. Lawrence, 150 Ga. App. 351, 258 S.E.2d 35 (1979); Wheels & Brakes, Inc. v. Capital Ford Truck Sales, Inc., 167 Ga. App. 532, 307 S.E.2d 13 (1983) (decided under former Code 1933, § 38-1708);(decided under former Code 1933, § 38-1708);(decided under former O.C.G.A. § 24-9-66).
While the purchase price of a motor vehicle is relevant and admissible to establish the vehicle's value at the time of purchase, it is obviously not, standing alone, sufficient to establish the value of the vehicle at some later point in time. Similarly, the value of a motor vehicle cannot be established merely by adding to the vehicle's purchase price the cost of maintaining and repairing the vehicle. Builders Transp., Inc. v. Hall, 183 Ga. App. 812, 360 S.E.2d 60, cert. denied, 183 Ga. App. 905, 360 S.E.2d 60 (1987) (decided under former O.C.G.A. § 24-9-66).
When an affidavit as to the value of a truck contained no information regarding the affiant's knowledge, experience, or familiarity with the value of the vehicle, the affidavit lacked probative value as a nonexpert opinion. Dowdell v. Volvo Commer. Fin., LLC, 286 Ga. App. 659, 649 S.E.2d 750 (2007) (decided under former O.C.G.A. § 24-9-66).
Owner of property.
- See Speir v. Westmoreland, 40 Ga. App. 302, 149 S.E. 422 (1929) (decided under former Civil Code 1910, § 5875); Georgia Power Co. v. Carson, 46 Ga. App. 612, 167 S.E. 902 (1933); Grant v. Dannals, 87 Ga. App. 389, 74 S.E.2d 119 (1953) (decided under former Code 1933, § 38-1709); Housing Auth. v. Spink, 91 Ga. App. 72, 85 S.E.2d 80 (1954); Georgia R.R. & Banking Co. v. Flynt, 93 Ga. App. 514, 92 S.E.2d 330 (1956) (decided under former Code 1933, § 38-1709); Isen & Co. v. Wise, 94 Ga. App. 220, 94 S.E.2d 98 (1956); Hoard v. Wiley, 113 Ga. App. 328, 147 S.E.2d 782 (1966) (decided under former Code 1933, § 38-1709); Edwards v. State, 116 Ga. App. 80, 156 S.E.2d 518 (1967); Johnson v. Rooks, 116 Ga. App. 394, 157 S.E.2d 527 (1967) (decided under former Code 1933, § 38-1709); Nelson v. Cheek, 127 Ga. App. 31, 192 S.E.2d 504 (1972); Clark v. Peck, 134 Ga. App. 868, 216 S.E.2d 687 (1975) (decided under former Code 1933, § 38-1709); Hagin v. Powers, 140 Ga. App. 300, 231 S.E.2d 780 (1976); Cunningham v. Hodges, 150 Ga. App. 827, 258 S.E.2d 631 (1979) (decided under former Code 1933, § 38-1709); Gunter v. State, 155 Ga. App. 176, 270 S.E.2d 224 (1980); DOT v. Brown, 155 Ga. App. 622, 271 S.E.2d 876 (1980) (decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709).
Trial court did not err in concluding that the victim's testimony was sufficient to allow a felony theft charge to go to the jury because the victim testified as to the market value for each of the items stolen from him, and the total value exceeded $500; the victim established that the victim had an opportunity to form a correct opinion because the victim based the opinion as to the market value of the stolen tools on the age of the tools and his experience using and purchasing them. Sheppard v. State, 300 Ga. App. 631, 686 S.E.2d 295 (2009) (decided under former O.C.G.A. § 24-9-66).
Testimony from child of property owner.
- Property owner's son's testimony in a condemnation proceeding as to the value of residential property was admissible, when the son testified to the son's comparable sales analysis and to the son's familiarity with the neighborhood. Appraiser could testify as to the possible rezoned value of the property, because the rezoning was sufficiently likely as to have an appreciable influence on the property's present market value, approximately $600. DOT v. Jordan, 300 Ga. App. 104, 684 S.E.2d 141 (2009), cert. denied, No. S10C0207, 2010 Ga. LEXIS 311 (Ga. 2010) (decided under former O.C.G.A. § 24-9-66).
Personal property.
- See Hagin v. Powers, 140 Ga. App. 300, 231 S.E.2d 780 (1976) (decided under former Code 1933, § 24-9-66).
Purchase price.
- See Speir v. Westmoreland, 40 Ga. App. 302, 149 S.E. 422 (1929) (decided under former Civil Code 1910, § 5875); Herrmann & Henican v. De La Perrier, 47 Ga. App. 541, 171 S.E. 232 (1933); 56 Ga. App. 749, 194 S.E. 42 (1937), later appeal, Mills v. Mangum, 111 Ga. App. 396, 141 S.E.2d 773 (1965) (decided under former Code 1933, § 38-1709); Hoard v. Wiley, 113 Ga. App. 328, 147 S.E.2d 782 (1966); Nail v. Hiers, 116 Ga. App. 522, 157 S.E.2d 771 (1967) (decided under former Code 1933, § 38-1709); Sisk v. Carney, 121 Ga. App. 560, 174 S.E.2d 456 (1970); Seaboard Coast Line R.R. v. Toole, 128 Ga. App. 24, 195 S.E.2d 282 (1973) (decided under former Code 1933, § 38-1709); Smith v. Fidelity Fed. Sav. & Loan Ass'n, 149 Ga. App. 730, 256 S.E.2d 43 (1979); Cunningham v. Hodges, 150 Ga. App. 827, 258 S.E.2d 631 (1979) (decided under former Code 1933, § 38-1709); General Fin. Corp. v. Henderson, 160 Ga. App. 242, 286 S.E.2d 454 (1981);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709);(decided under former O.C.G.A. § 24-9-66).
Purchaser may testify as to termite damage.
- In a suit arising out of hidden termite damage, the court erred by refusing to allow the plaintiff-purchaser to provide evidence of damage by giving plaintiff's own non-expert opinion testimony as to the diminished value of the property, based on plaintiff's familiarity with similar property in the area and plaintiff's close personal inspection of the damage in question. Vitello v. Stott, 222 Ga. App. 134, 473 S.E.2d 504 (1996) (decided under former O.C.G.A. § 24-9-66).
Rental value.
- See Mayor of Gainesville v. Robertson, 25 Ga. App. 632, 103 S.E. 853 (1920) (decided under former Civil Code 1910, § 5875).
Salvage price.
- See Isen & Co. v. Wise, 94 Ga. App. 220, 94 S.E.2d 98 (1956) (decided under former Code 1933, § 38-1709); Nail v. Hiers, 116 Ga. App. 522, 157 S.E.2d 771 (1967); Burch v. Lawrence, 150 Ga. App. 351, 258 S.E.2d 35 (1979) (decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709).
Services.
- See Western & Atl. R.R. v. Townsend, 36 Ga. App. 70, 135 S.E. 439 (1926), cert. denied, 36 Ga. App. 826 (1927) (decided under former Civil Code 1910, § 38-1709).
Similar sale.
- See Herrmann & Henican v. De La Perrier, 47 Ga. App. 541, 171 S.E. 232 (1933), later appeal, 56 Ga. App. 749, 194 S.E. 42 (1937) (decided under former Code 1933, § 38-1709); Housing Auth. v. Spink, 91 Ga. App. 72, 85 S.E.2d 80 (1954);(decided under former Code 1933, § 38-1709).
Stock.
- See Speir v. Westmoreland, 40 Ga. App. 302, 149 S.E. 422 (1929) (decided under former Civil Code 1910, § 5875); Herrmann & Henican v. De La Perrier, 47 Ga. App. 541, 171 S.E. 232 (1933); 56 Ga. App. 749, 194 S.E. 42 (1937), later appeal, Ferguson v. Bank of Dawson, 50 Ga. App. 604, 179 S.E. 236 (1935) (decided under former Code 1933, § 38-1709);(decided under former Code 1933, § 38-1709).
Value of dog.
- Trial court did not err in assessing the value of a dog the defendant killed at $3,000 because evidence of the knowledge, experience, and familiarity of a witness with the value of labrador retrievers trained to hunt created a basis for the value stated. Futch v. State, 314 Ga. App. 294, 723 S.E.2d 714 (2012) (decided under former O.C.G.A. § 24-9-66).
Damages recoverable by the owners of a pet dog negligently killed by a kennel included both the dog's fair market value at the time of the loss plus interest and, in addition, any medical and other expenses reasonably incurred in treating the dog; application of an actual value to the owner standard was not the appropriate measure. Barking Hound Vill., LLC v. Monyak, 299 Ga. 144, 787 S.E.2d 191 (2016).
RESEARCH REFERENCES
Am. Jur. 2d.
- 29 Am. Jur. 2d, Evidence, § 387 et seq.
C.J.S.- 32 C.J.S., Evidence, §§ 586 et seq., 608 et seq., 751 et seq., 768, 792.
Proof of Identification of Bite Marks, 75 POF3d 317.
ALR.
- Effect of witness qualifying his testimony with "I think," "I believe," or the like, when expressing thereby indistinct observation or recollection, 4 A.L.R. 979.
Newspapers and trade journals as evidence of market prices or quotations, 43 A.L.R. 1192.
Admissibility of witness's conclusion as to care exercised in driving automobile, 66 A.L.R. 1117.
Right of witness to give summary based on inspection of number of documents, 66 A.L.R. 1206.
Testimony by witness as to emotions of fear or other mental state manifested by another, 69 A.L.R. 1168.
Opinion evidence as to speed of automobile or motorcycle, 70 A.L.R. 540; 94 A.L.R. 1190.
Competency of testimony of nonexperts on question of sanity or insanity in criminal cases, 72 A.L.R. 579.
Right of witness to state conclusion as to immoral purpose or intent of another, 73 A.L.R. 868.
Opinion evidence as to condition of automobile or other motor vehicle, 77 A.L.R. 559.
Right of witness to state his opinions or conclusion, based on examination of books and accounts, as to solvency or insolvency, 81 A.L.R. 1431.
Opinion evidence directly as to the ultimate question of the amount of damage to property, 86 A.L.R. 1449.
Opinion of court or counsel or other person learned in law as a factor in determining marketability of title, 90 A.L.R. 609.
Right of witness to testify as a conclusion or as an ultimate fact to existence or nonexistence of agency or relationship of master and servant, 90 A.L.R. 749.
Admissibility and effect of testimony of lay witness as to existence of a particular disease, or as to apparent physical condition of a person, on the issue of existence of particular disease, 93 A.L.R. 482.
Lack of market value as a necessary condition of admissibility of evidence of actual or intrinsic value, 110 A.L.R. 1375.
Right of witness to state his conclusion or opinion that confession was voluntary or involuntary, 114 A.L.R. 974.
Opinion evidence as to distance within which automobile can be stopped, 135 A.L.R. 1404.
Admissibility of opinion evidence as to cause of death, disease, or injury, 136 A.L.R. 965; 66 A.L.R.2d 1082.
Proper form of question to witness or of testimony of witness, as regards mental condition of person whose capacity to execute a will is in issue, 155 A.L.R. 281.
Competency of witness to give expert or opinion testimony as to value of real property, 159 A.L.R. 7.
Unaccepted offer for purchase or sale of real property as evidence of value, 7 A.L.R.2d 781.
Admissibility on question of damages in action for libel or slander of testimony as to the impression or effect of the matter upon the minds of individuals, 12 A.L.R.2d 1005.
Proof of prospective earning capacity of student or trainee, or of its loss, in action for personal injury or death, 15 A.L.R.2d 418.
Admissibility in condemnation proceedings of opinion evidence as to probable profits derivable from land condemned if devoted to particular agricultural purposes, 16 A.L.R.2d 1113.
Admissibility of opinion evidence as to whether vehicle involved in collision was standing still or moving, 33 A.L.R.2d 1250.
Admissibility of opinion of nonexpert owner as to value of chattel, 37 A.L.R.2d 967.
Admissibility of opinion evidence as to the cause of an accident or occurrence, 38 A.L.R.2d 13.
Requisite foundation or predicate to permit nonexpert witness to give opinion, in a civil action, as to sanity, mental competency, or mental condition, 40 A.L.R.2d 15.
Admissibility of opinion evidence of lay witnesses as to diseases and physical condition of animals, 49 A.L.R.2d 932.
Admissibility, in homicide prosecution, of opinion evidence that death was or was not self-inflicted, 56 A.L.R.2d 1447.
Statement of belief or opinion as perjury, 66 A.L.R.2d 791.
Admissibility of opinion evidence as to point of impact or collision in motor vehicle accident case, 66 A.L.R.2d 1048.
Admissibility and probative effect of testimony that motor vehicle was going "fast" or the like, 92 A.L.R.2d 1391.
Person performing services as competent to testify as to their value, 5 A.L.R.3d 947.
Ability to see, hear, smell, or otherwise sense, as proper subject of opinion by lay witness, 10 A.L.R.3d 258.
Admissibility of hearsay evidence as to comparable sales of other land as basis for expert's opinion as to land value, 12 A.L.R.3d 1064.
Necessity of laying foundation for opinion of attesting witness as to mental condition of testator or testatrix, 17 A.L.R.3d 503.
Admissibility of evidence of proposed or possible subdivision or platting of condemned land on issue of value in eminent domain proceedings, 26 A.L.R.3d 780.
Opinion testimony as to speed of motor vehicle based on skid marks and other facts, 29 A.L.R.3d 248.
Competency of nonexpert's testimony, based on sound alone, as to speed of motor vehicle involved in accident, 33 A.L.R.3d 1405.
Admissibility of nonexpert opinion testimony as to weather conditions, 56 A.L.R.3d 575.
Admissibility of opinion evidence as to employability on issue of disability in health and accident insurance and workers' compensation cases, 89 A.L.R.3d 783.
Sale price of real property as evidence in determining value for tax assessment purposes, 89 A.L.R.3d 1126.
Unaccepted offer for purchase of real property as evidence of its value, 25 A.L.R.4th 571.
Unaccepted offer to sell or buy comparable real property as evidence of value of property in issue, 25 A.L.R.4th 615.
Unaccepted offer to sell or listing of real property as evidence of its value, 25 A.L.R.4th 983.
Admissibility of testimony of expert, as to basis of his opinion, to matters otherwise excludible as hearsay--state cases, 89 A.L.R.4th 456.
Admissibility of expert or opinion evidence of battered-woman syndrome on issue of self-defense, 58 A.L.R.5th 749.
Admissibility of expert testimony as to proper techniques for interviewing children or evaluating techniques employed in particular case, 87 A.L.R.5th 693.
Admissibility and sufficiency of bite mark evidence as basis for identification of accused, 1 A.L.R.6th 657.
State regulation of naturopaths and naturopathy, 41 A.L.R.7th Art. 10.
Admissibility of "slang," "lingo," "jargon," or "code" lay testimony in state cases, 41 A.L.R.7th Art. 11.
Admissibility of expert or opinion evidence - Supreme court cases, 177 A.L.R. Fed. 77.