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BARROW v. GEORGIA LIGHTWEIGHT AGGREGATE COMPANY.
38639.
Action for damages. Polk City Court. Before Judge Flournoy.
BELL, Judge.
1. Explosions occurring several times daily adjacent to aintiff's real property, causing the casting of rocks, the cracking of walls, ceilings, and the foundation of the house, may be found by a jury to constitute trespass. The trespasser may be held liable for damage to property and person, including mental and physical injury of the owner and his family.
2. It is not necessary for the owner to have repairs made prior to the bringing of an action for trespass nor to allege their cost in the petition, but where repairs have been made, a special demurrer may require the showing of the time of repairs and by whom done.
3. The difference between the fair market value of plaintiff's property before and after the trespass is an appropriate measure of damages. Exemplary damages may also be recovered for wilful repetition of trespass to real property.
4. A continuous, uninterrupted series of dynamite explosions, over a period of years, shaking and vibrating plaintiff and his house, causing him grievous discomfort, annoyance, anxiety, and damage to his house, is at least a private nuisance.
5. Acts of a defendant as set forth in headnotes 1 and 4, above, constitute extraordinary negligence.
6. Where a defendant acts with an entire want of care and a conscious indifference to consequences, exemplary damages may be recovered.
7. An order revoking a ruling on demurrers to pleadings entered at a previous term is erroneous.
8. There is no error in the refusal of a trial court to direct a verdict for the plaintiff.
9. It is unnecessary to pass upon the alleged error in instructions upon the measure of damages, since the appropriate measure is set forth in division 3 of this opinion.
10. Where the jury has a city ordinance before it, it is not error for the trial judge, in charging the jury, to express a correct opinion as to the meaning of the ordinance.
11. Contributory negligence of the plaintiff is not a defense to a wilful tort.
12. This division is governed by headnote 9, above.
13. It is mandatory for a trial judge to charge a correct and applicable principle of law when requested in writing. It is error to fail to so charge in the language requested, even though the substance of the request was given in different language.
14. An objection to evidence must be specific and show harmful error.
The plaintiff brought this action against the defendant in three counts, all three being based upon the factual allegations of count 1, charging in substance that the defendant, in conducting excavating and mining operations on land close to the land and dwelling house of the plaintiff, beginning in 1954 and continuing to the time of filing of the petition, from time to time set off quantities of explosives which produced violent concussions and vibrations of the earth and air, causing great injury to the foundations and the whole superstructure, including the walls, ceilings, and chimneys of the plaintiff's dwelling. The petition further charged that the shaking and vibration of the plaintiff's dwelling caused the plaintiff great and grievous discomfort, annoyance, and anxiety concerning the safety of himself, his dwelling, and his family, and that in spite of his repeated complaints and pleas to the defendant for cessation of such activities, the defendant continued to set off such blasts which continued to damage the plaintiff's dwelling and cause him mental and physical annoyance, discomfort, and anxiety, which have unlawfully interfered with the plaintiff's peaceful and quiet enjoyment of his property. The petition was twice amended to change the prayers for damages, and by the first amendment specific items of damage to the house were alleged. The first amendment also charged that dirt and dust were deposited on the plaintiff's house Monday through Friday of each week, excluding holidays, from the time the plant of the defendant went into operation. Count 1 of the petition charged the acts of the defendant constituted a direct trespass to the plaintiff's person and property. Count 2 of the petition charged that the defendant's conduct constituted the maintenance of a nuisance which caused a reduction in the fair rental value of the plaintiff's dwelling by one-half. Count 3 of the petition charged the defendant's acts constituted negligence, and prayed for exemplary damages in the amount of $6,250.
The final amendment to the petition added to each count a prayer for $6,250 for personal injuries by reason of the noise and concussion of the defendant's blasting, causing the plaintiff to have severe headaches, and charged the dust and dirt thrown onto petitioner's property and into the air inhaled by the petitioner caused him physical and mental pain and suffering and affected his health adversely. The defendant filed 22 general and special demurrers, almost all of which contained many subdivisions. On September 11, 1958, the trial court entered an order sustaining 25 of the grounds of demurrer or subdivisions thereof, to which the plaintiff excepted. The defendant's answer admitted the jurisdiction and denied practically everything else. The defendant's additional demurrer, which the trial court sustained, charged that in counts 1 and 2 the plaintiff failed to allege the correct legal measure of damage to real property. This demurrer was sustained, to which the plaintiff excepted. The defendant filed still other demurrers on January 14, 1959, charging each count failed to set forth a cause of action, and charging that the plaintiff's amendments failed to set forth the legal measure of damages, and asserting other grounds of special demurrer to various paragraphs of the petition. The trial judge, on March 31, 1959, sustained paragraph 5 (b) of the defendant's last demurrer, which had the effect of striking paragraph 4 of the plaintiff's second amendment which incorporated paragraph 6 of count 3 of the original petition into the other counts of the petition. Paragraph 6 of count 3, which was thus stricken from counts 1 and 2, quoted certain ordinances of the City of Rockmart, the violation of which was charged as negligence per se. By this order of March 31, 1959, the trial court amended its order of September 11, 1958, ruling on the demurrer, by overruling ground 2 therein so as to reinstate the plaintiff's allegations as to exemplary damages. The plaintiff excepted to the portion of this order which sustained ground 5 (b) of the defendant's demurrer, and also to that portion of the order which amended the court's prior order, on the ground that the same was confusing, misleading, and contrary to law.
The case proceeded to trial, and prior to the submission of the case to the jury at the conclusion of all the evidence, the plaintiff moved for a directed verdict on count 1 of the petition. This motion was overruled and the plaintiff excepted. The jury returned a verdict for the defendant, whereupon the plaintiff filed a motion for a new trial on the general grounds, to which 11 special grounds were added by amendment. The trial court overruled the motion for new trial in its entirety, to which the plaintiff excepted.
The defendant, in its brief, states that the complications arising in the pleadings with reference to interpretation became so complex that it is doubtful that any sort of affirmative analysis can be made, and that the pleadings reached such a state that the plaintiff, the defendant, and the court were at all times in doubt as to the status of the issues. With respect to this statement, we deem it sufficient to point out that the numerous assignments of error by the exceptions and the amended motion for a new trial total some 39 claimed errors.
The first contention of the plaintiff is that the trial court erred in sustaining original demurrer number 5 (a) of the defendant to that portion of paragraph 8 of the plaintiff's petition as constituting a conclusion which charges that "on occasions so frequent as to constitute a continuous and uninterrupted chain of events from late in 1954 until the filing of this petition, defendant in the course of its operations caused the explosion of large amounts of dynamite or other high explosives, the amount of which is unknown to plaintiff but well known to defendant." We do not agree with this ruling of the trial court in sustaining the demurrer to this portion of the petition. The further ground of demurrer sustained to this allegation of the plaintiff was that it failed to show the date or dates when damaging explosions occurred and until this information is alleged defendant contended it was unable properly to prepare its defense. Under numerous cases of our appellate courts it is not necessary for the plaintiff to allege in the petition information which is peculiarly within the knowledge of the defendant. Furthermore, specific dates were set out elsewhere in the petition as to some of the explosions set off by the defendant.
1. The next contention of the plaintiff is that the explosions set off by the defendant constituted a trespass upon the plaintiff's real property. These explosions, it is alleged, were between 100 and 1,000 yards from the plaintiff's house and were set off frequently, according to the testimony three or four times a day, and caused the breaking of a window, the shaking of the house, the casting of rocks upon the premises, the cracking of sheet rock on the walls and the ceilings, and the foundation of the house, and did "shake and vibrate plaintiff's body and cause plaintiff great and grievous discomfort, annoyance, and anxiety concerning the safety of himself, his dwelling and his family."
503 (106 S. E. 2d 429); Dalon Contracting Co. v. Artman, 101 Ga. App. 828, 837 (115 S. E. 2d 377). The plaintiff urges that since these acts of the defendant constituted a trespass, the trespasser is liable for the personal injuries of mental and physical discomfort as alleged in the petition. The trespasser's liability has been carried to extreme lengths as to consequences for which he may be held answerable. Thus, a trespasser is generally held liable for all damages proximately caused to the property, even including that which could not reasonably have been anticipated at the time of the unlawful entry. Prosser on Torts, 2d Ed. 13, p. 57. This rule has been relied upon to impose liability upon the trespasser for personal injury to the owner and members of his household, including liability for mental suffering. Engle v. Simmons, 148 Ala. 92 (41 So. 1023); Prosser on Torts, 2d Ed., 13, p. 58. See also 52 Am. Jur. 875, 876, Trespass, 51, and cases there cited. We think this principle is sound, and accordingly hold that a trespass upon real property imposes liability for damage caused to property and person, including mental and physical injury of the owner and his family. In view of this holding, the trial court erred in sustaining grounds 6 (d), 11 (a), 12 (a), 13 (a), 13 (b), 15 (c), and 16 (b) of the defendant's original demurrer, all of which related to allegations of mental and physical suffering caused by the defendant's trespass.
App. 334, 335 (175 S. E. 417), and cits.; Daniell v. McGuire, 87 Ga. App. 491 (3) (74 S. E. 2d 378).The allegation was sufficient to apprize the defendant of the damage claimed. Further, it was not necessary for the plaintiff to set forth the cost of repairs since it obviously is not essential that the plaintiff make the repairs before bringing action for the damages. Since there is no allegation in the petition that the repairs had been made, their cost could not have been alleged in the petition. The trial court erred in sustaining grounds 7 (b) and (c) of the defendant's original demurrers.
The trial court properly sustained ground 7 (d) of the original demurrers attacking the failure to allege the date of painting of the dwelling and the name of the painter. These allegations are necessary to an understanding of the plaintiff's charge, since a part of the defendant's preparation for the defense might include the interviewing and investigating of the painter to determine whether the allegation was true or not. Demurrer 7 (f) was improperly sustained by the trial judge. This situation is controlled by the ruling (supra) on demurrer 5 (d).
The defendant's demurrer 15 (c), which was sustained, is controlled by the ruling in division 1 of this opinion. The trial court erred in sustaining demurrers 14 (a) and (b) and 15 (c) directed to the plaintiff's allegations of damage.
4. The next ground of error pressed is the trial court's sustaining of the defendant's original demurrer 15 (d) to paragraph 2 of count 2 of the petition. This demurrer urged "that said paragraph fails to show where defendant's operations constitute a continuing nuisance and, therefore, is a conclusion of the pleader, there being no facts alleged to support this proposition." It was error to sustain this demurrer, since a reading of count 2 as a whole, including the allegations of count 1 of the petition which were incorporated into count 2, shows sufficient facts alleged to make out a cause of action for a continuing nuisance. The classic definition of a private nuisance is such conduct as constitutes an unreasonable interference with the plaintiff's interest in the use and enjoyment of his land. Our Georgia statute, paraphrasing Blackstone's Commentaries, defines a nuisance as anything that works hurt, inconvenience, or damage to another. Code 72-101; Coker v. Birge, 9 Ga. 425 (54 Am. Dec. 347); 3 Bl. Com. 215. Here the petition alleges that on occasions so frequent as to constitute a continuous and uninterrupted chain of events from late in 1954 until the filing of the petition, the defendant in the course of its operations caused the explosion of large amounts of dynamite or other high explosives, shaking and vibrating the plaintiff's body and causing him great and grievous discomfort, annoyance, and anxiety, and further breaking a window, shaking the house, casting rocks upon the premises, cracking the sheet rock on the walls, cracking the ceilings and the foundation, which allegations are sufficient to allege hurt, inconvenience, or damage to the plaintiff's use and enjoyment of his property. See Rinzler v. Folsom, 209 Ga. 549, 552 (74 S. E. 2d 661).
The trial court erred in sustaining ground 16 (b) of the defendant's original demurrers to paragraph 2 of count 3 of the plaintiff's petition, since the manner and scope of the personal injuries alleged to have been suffered by the plaintiff in the petition was sufficient to apprize the defendant of the plaintiff's cause of action, which included the right to recover for personal injuries.
Defendant's original demurrer 19 (a) to paragraph 5 of count 3 of the plaintiff's petition was improperly sustained by the trial court. Paragraph 5 so demurred to simply charged that "defendant could have moved the material being mined on its premises without the use of high explosives." This did not constitute merely an unsubstantiated conclusion of the pleader, but was the pleading of an ultimate fact to be proved by the evidence.
The defendant's original demurrers 20 (a) and (b) were sustained to paragraphs 6 (a) and (b), which resulted in striking from count 3 certain ordinances of the City of Rockmart. The basis of this ruling was that the alleged ordinances had no application under the allegations of the petition to any acts of the defendant. The trial court properly sustained the demurrer to paragraph 6 (a) of count 2 Of the plaintiff's petition, as that ordinance obviously deals with malicious mischief, and here the allegations of the petition do not charge this type of conduct to the defendant. The second ordinance alleged in paragraph 6 (b) and demurred to reads "It shall be unlawful for any person to interfere, injure, or deface any property of another in this city, whether the same be done in the spirit of mischief or otherwise." The trial court erred in striking this ordinance, since it could be found to apply to the acts of the defendant as alleged in the petition.
5. The defendant's original demurrer numbered 21 (a) was sustained to paragraph 7 of count 3 of the plaintiff's petition on the grounds that there are no allegations in the paragraph or elsewhere in the petition which show acts of gross negligence, and that the allegation constitutes a conclusion of the pleader. Gross negligence is defined in the Code as the failure to exercise that degree of care which every man of common sense, howsoever inattentive he may be, exercises under the same or similar circumstances. Code 105-203. The petition as a whole charges the defendant with repeatedly setting off dynamite charges over a period of years, in violation of the plaintiff's rights and after repeated warnings that these explosions injured the plaintiff's person and property. Under the circumstances there was a sufficient allegation of conduct which a jury could find to be gross negligence or worse, and such questions are for the jury. Wallace v. Clayton, 42 Ga. 443, 447 (2); Frye v. Pyron, 51 Ga. App. 613 (181 S. E. 142); Holland v. Boyett, 212 Ga. 458 (93 S. E. 2d 662); Harris v. Reid, 30 Ga. App. 187 (117 S. E. 256). The trial court erred in sustaining this demurrer.
6. The next ground of error is that the court improperly sustained the defendant's demurrer 22 (a) to the paragraph of count 3 of the petition which asked for exemplary damages because of the aggravated nature of the defendant's acts of negligence as set forth in that count. The usual rule is that punitive or exemplary damages will not lie for acts of negligence; in general, they are restricted to torts arising from intentional wrongful acts and are not allowable where the injury is inadvertent, as is the case with negligent wrongs. Code 105-2002. However, where, as the petition here charges, the defendant, after being warned of the injury to the plaintiff's land, person, and property, continued to set off the explosions, a jury might find that the act was such as to evince an entire want of care and conscious indifference to consequences which would justify an award of exemplary damages. Battle v. Kilcrease, 54 Ga. App. 808 (189 S. E. 573); American Fidelity &c. Co. v. Farmer, 77 Ga. App. 166 (3b) (48 S. E. 2d 122); Rutland v. Dean, 60 Ga. App. 896 (1) (5 S. E. 2d 601). Under these authorities, it was error to strike the prayer for exemplary damages in count 3 of the plaintiff's petition.
7. The next ground of error charged arises from the trial court's order of March 31, 1959, which reversed its previous order of September 11, 1958, to overrule, instead of sustain, the defendant's original demurrer number 2. The purpose of the order was stated as "Being to reinstate the allegations concerning the exemplary damages." This order refers to a ruling on the demurrers filed June 2, 1958. The plaintiff contends this attempted amendment of the previous ruling was void because it was confusing and misleading, inasmuch as there were no demurrers filed on June 2, 1958. An order revoking a ruling on demurrers to pleadings entered at a previous term is erroneous. General Tire Service Co. v. Carlisle, 84 Ga. App. 288 (66 S. E. 2d 161). This court will take judicial notice that the terms of court of the City Court of Polk County are January, April, July, and October of each year. Here the attempt by the trial court to revoke its previous ruling in the July term of 1958, at the January term of 1959 was erroneous.
8. The next ground of error assigned is that the trial court, after the evidence had been concluded, denied the plaintiff's motion for a directed verdict "of liability on count 1 of the petition on the grounds that the evidence with reference to count 1 demanded a verdict in favor of the plaintiff." The trial court did not err in denying the motion for a directed verdict for the plaintiff. The mere refusal of a trial judge to direct a verdict is not reviewable by a direct bill of exceptions which assigns error only on the refusal. See catchword "Refusal", annotations under Code 110-104. The proper way--indeed, the only way--to perfect an appeal on the refusal of a trial judge to direct a verdict is to make a legal motion for a judgment notwithstanding the verdict. The motion n. o. v. being based on the refusal of the trial judge to direct a verdict, it necessarily follows that the overruling of the motion n. o. v., properly excepted to, allows the appellate courts to consider the presence of error in the refusal to grant the motion for a directed verdict. See Code Ann. 110-113.
9. Special grounds numbered 1 and 5 of the amended motion for new trial contend that the trial court made an error in its instructions to the jury as to the measure of damages. In division 3 of this opinion the proper measure of damages is set forth. It therefore becomes unnecessary to pass upon this assignment of error, as the ruling in division 3 disposes of the question. While the charge in this case was incorrect as to the measure of damages, it was immaterial as the verdict exonerated the defendant on the issue of liability. Carstarphen v. Central of Ga. Ry. Co., 8 Ga. App. 162 (68 S. E. 848); Cohen Bros. v. Krumbein, 28 Ga. App. 788 (113 S. E. 58).
10. Special ground number 2 complains that the trial judge expressed an opinion as to the meaning of an ordinance of the City of Rockmart, Georgia, which had been introduced in evidence by the defendant. While an expression of opinion by the trial judge as to what has or has not been proved by the facts is error (Code 81-1104), the trial judge may express an opinion as to what the law is when he instructs the jury. Powell v. State, 65 Ga. 707 (3). If the trial court should misstate the law, or should his expressed opinion as to the law be incorrect, this, of course, would be error. Here there is no evidence in the record and nothing in the brief to show that the trial court's statement, "I believe that is the substance of what the ordinance says," was incorrect. Furthermore, the jury, according to the record, had the ordinance in question before it when it considered the case. Under the circumstances there was no error shown in the trial court's expression of opinion as to the meaning of the city ordinance.
Special ground 3 was abandoned.
11. Special ground 4 of the motion for new trial contends that the trial judge erred in instructing the jury in part, referring to count 1 which charged the defendant committed a trespass, that "plaintiff could not recover if his injuries were the result of his own negligence . . ." The remainder of this instruction dealt with the necessity of the plaintiff's exercising ordinary care for his own safety. It appears self-evident as a desirable rule of law that contributory negligence should not be a defense to a wilful tort, and the Georgia courts have so held. Central R. & Bkg. Co. v. Newman, 94 Ga. 560 (21 S. E. 219); Georgia Power Co. v. Deese, 78 Ga. App. 704, 708 (51 S. E. 2d 724). Accordingly, this instruction was erroneous.
12. Special ground 6 of the motion urges that the trial court erred in leaving out the word, "reduction," in a portion of the charge which related to the measure of damages for the property involved. The plaintiff contends that a jury is more likely to understand the word, "reduction," than "diminution." We are unwilling to attribute such ignorance to jurors, and will not presume that jurors are not conversant with the English language. This ground has no merit. Furthermore, since here the jury found for the defendant, had there been error in the charge on the measure of damages it would have been harmless.
13. Special ground 7 of the motion assigns error in the court's refusing to charge, pursuant to written request, that it is not necessary for the plaintiff to prove liability of the defendant under the legal theories of all three counts in the petition in order to be entitled to recover. As the written request contained a correct statement of the law and was applicable, it was mandatory for the trial judge to give it in his charge to the jury. Code Ann. 70-207. Vaughan v. Vaughan, 212 Ga. 485 (93 S. E. 2d 743). Special ground 7 is meritorious.
Special grounds 8, 9, and 10 of the motion are considered as abandoned.
14. Special ground 11 assigns error in the admission of testimony of a witness for the defendant as to the condition of the plaintiff's house which he found upon his inspection of the house over a year after the suit was filed. The defendant contends that the plaintiff made no valid objection to the admission of the evidence at the time it was offered, and the only objection raised is in the following language: "I object to the question. The inspection of the house was made after the filing of the suit." This language is insufficient to form a basis for a valid objection. The vice of this objection is that it did not make the point that a proper foundation was not laid in that there was no showing that the house was in the same condition at the time of inspection after the suit was filed as it was over a year earlier at the time of the damage. "A specific objection showing a harmful error must be offered at the time the evidence is presented." McDaniel v. State, 197 Ga. 757, 759 (2) (30 S. E. 2d 612); Georgia R. & Bkg. Co. v. Lokey, 69 Ga. App. 403 (25 S. E. 2d 921); Wimberly v. Toney, 175 Ga. 416 (165 S. E. 257); Pylant v. State, 191 Ga. 587 (13 S. E. 2d 380).
The other special grounds of the motion for new trial were abandoned.
Cecil D. Franklin, contra.
Marson G. Dunaway, Jr., for plaintiff in error.
DECIDED MAY 16, 1961.
Friday May 22 23:19 EDT


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