German v. Department of Transportation

162 Ga. App. 785 (1982)

293 S.E.2d 50

GERMAN et al. v. DEPARTMENT OF TRANSPORTATION.

64221.

Court of Appeals of Georgia.

Decided July 1, 1982.

Hugh Gordon, for appellants.

William A. Erwin, for appellee.

QUILLIAN, Chief Judge.

This is an appeal from a condemnation award for land taken by the Department of Transportation to widen highway U. S. 82 in Worth County. The sole enumeration is that the trial court erroneously charged the jury that consequential damages to the property not taken could be reduced by the amount of consequential benefits to the property, when there was no evidence of any consequential benefits. Held:

Appellants rely on Theo v. Dept. of Transportation, 160 Ga. App. 518 (4) (287 SE2d 333) and Andrus v. State Hwy. Dept., 93 Ga. App. 827 (3) (93 SE2d 174). However, those cases are clearly distinguishable as they held it was error to charge that consequential damages could be reduced by consequential benefits where there was evidence of such benefits but there was no evidence from which the jury could form a reasonable estimate of the value of such benefits.

In the instant case while there was evidence of consequential damages there was absolutely no evidence of any consequential benefits to the property, much less the value thereof. Not being supported by any evidence, it was unnecessary for the trial court to give any charge on consequential benefits. Appellants have not shown whether or how they were harmed by the irrelevant *786 instruction, nor do we find that the jury could have been misled thereby.

"It is never error to give an inapplicable instruction if the court gave the correct rule of law and the irrelevant charge could not reasonably be calculated to prejudice the complaining party or mislead the jury. [Cit.]" General GMC Trucks v. Crockett, 145 Ga. App. 503 (3), 505 (244 SE2d 78).

"`An inappropriate charge, unless harmful, is not ground for a new trial. [Cits.] Appellant has not demonstrated how this charge has harmed him nor are we constrained to believe that the jury could have been led away by this one charge from the issues in the case.' [Cit.]" Bynum v. Standard Oil Co., 157 Ga. App. 819 (4), 822 (278 SE2d 669).

Judgment affirmed. Shulman, P. J., and Carley J., concur.