the right to open an automatic default within the 15-day period is expressly conditioned upon the payment of costs, and where defendant failed to comply with this condition, the trial court did not err in granting plaintiffs motion to strike defendant’s answer
How later courts described this case
- the right to open an automatic default within the 15-day period is expressly conditioned upon the payment of costs, and where defendant failed to comply with this condition, the trial court did not err in granting plaintiffs motion to strike defendant’s answer
- fair market value of beer and wine cannot be determined from purchase price alone but may be an element when coupled with other evidence such as condition at the time of purchase and loss
- “when an opinion is sought from a witness as to the value of a thing, it is necessary that it be shown that the witness has some knowledge, experience or familiarity with the value of the thing or of similar things”
- value is necessarily a matter of opinion, and such opinion is admissible as long as the witness provides the foundation underlying such opinion
Written by the judges who cited it.
The opinion
Eberhardt, Judge,
concurring. Judge Hall and I are in full agreement with what is held in the majority opinion. However, we do feel that our view as to why Fulton County v. Bailey, 107 Ga. App. 512 ( 130 SE2d 800 ) (cert. denied) is not in conflict and does not require overruling should be stated.
In that condemnation case the condemnor, whose burden it was to prove what the condemnee should recover for his land taken, introduced one expert witness who testified that the value was $11,500, and rested. At that point the condemnee was placed in the position of electing to accept the value as thus proven or contest it and show by other evidence that it was something else. The condemnee, being content with the value as asserted, accepted it and on the basis of it moved for a directed verdict. When that happened the evidence no longer occupied the status merely of opinion testimony, but rose to a level comparable to that of an agreement, thus eliminating the issue, and a verdict was demanded. While it did not have the technical attributes of an agreement, it was in that general category and the situation became analogous to trover cases brought under sales agreements, conditional sales contracts and bills of sales to secure debt, as in Fisher v. George S. Jones Co., 108 Ga. 490 ( 34 SE 172 ); Moultrie Repair Co. v. Hill, 120 Ga. 730 (5) ( 48 SE 143 ); Young v. Durham, 15 Ga. App. 678 (1) ( 84 SE 165 ); Jones v. May, 27 Ga. App. 152 (1a) ( 107 SE 897 ); Benton v. Harley, 21 Ga. App. 168 (2) ( 94 SE 46 ); Levy v. American Wholesale Co., 32 Ga. App. 103 (2) ( 122 SE 808 ); Griffeth v. Wilmore, 46 Ga. App. 481 ( 167 SE 914 ); and cf. Fussell v. Heard & Fullington, 119 Ga. 527 ( 46 SE 621 ), and Citizens Bank v. Shaw, 132 Ga. 771 (3) ( 65 SE 81 ). This would not have been the situation, of course, if there had been any other evidence as to value. Rather, it would have been *337 a situation similar to Elder v. Woodruff Hardware &c. Co., 9 Ga. App. 484 ( 71 SE 806 ), where it was held error to have directed a verdict for the amount due under the security instrument when there was evidence that the property had less value.
The situation in Fulton County v. Bailey, 107 Ga. App. 512 , supra, a condemnation case, is analogous too, to a situation where the plaintiff in an action has alleged the value of property to be an amount and the defendant in his answer .had admitted it. The issue is no longer for the jury. Of course the condemnor in Fulton County v. Bailey would not have been entitled to a directed verdict, for as to it there was only opinion testimony before the court and until the condemnee elected to accept and agree with the testimony the issue was one that could only be settled by the jury. There could have been no direction of a verdict until the testimony was raised to a higher status. But when the condemnor offered expert testimony showing one value only, and the condemnee accepted that as satisfactory the parties had, in effect, “fixed the value as between themselves,” as in Bradley v. Burkett, 82 Ga. 255, 257 ( 11 SE 492 ). Because of the peculiar nature of the case and the situation in Fulton County v. Bailey it is an exception that will, not often occur. It would have no application in the ordinary trover suit or damage action.
Bell, P. J., Jordan and Debn, JJ., Addendum. It is our view that the case of Fulton County v. Bailey, 107 Ga. App. 512 , supra, should be overruled as we feel it is in conflict with decisions of the Supreme Court. The majority of the court, however, disagrees.
With respect to the other cases overruled, it is our firm conviction that it is an important duty of the appellate courts to remove from the already far too voluminous body of precedent law all cases which are wrong or else to reconcile or distinguish cases in apparent conflict. It requires more effort on the part of individual judges and the courts to do those things but the continuity of stare decisis demands that it be done. Counsel these days are plagued with reading numerous decisions on practically every point of law researched and appellate courts add immeasurably to counsel’s burden by ignoring cases in con *338 flict, or as elsewhere suggested in the report of this case, by refusing to take notice of important issues present in a case and taking the easy way out.