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OLSEN & COMPANY, INC. v. LUNSFORD; and vice versa.
Action for damages. Fulton Civil Court. Before Judge Henson. November 24, 1958.
1. The excerpt from the charge excepted to, when construed with the charge as a whole, was not subject to the objection that it relieved the defendant in a tort action from liability for damage inflicted by him if such damage was not within his contemplation at the time he did the act complained of, but rather instructed the jury in effect that if the event causing the injury were of such extraordinary character as could not have been contemplated or anticipated by the defendant, he would not be liable.
Olsen & Company, Inc., sued W. C. Lunsford, Jr., lessor, in the Civil Court of Fulton County for water damage caused by a heavy rain which flooded a basement leased by the plaintiff. The petition was in Olsen & Co. v. Lunsford, 97 Ga. App. 293 (103 S. E. 2d 168) held good as against general demurrer, and the pleadings are set out in full in that case. The evidence showed, briefly, that the building in question had, immediately to the south, a paved area 48 feet in depth with a door leading to it from the basement, and immediately behind that was a 12-foot paved area which was part of a driveway easement commencing west of the defendant's property and extending east of it, which was used by all adjoining landowners and their tenants in common. A storm sewer ran under the ground in an approximately north-south direction and there was a catch basin for rain water located either at the edge of the 12-foot easement or just south of it. The plaintiff's contention, supported by his testimony, was that, when he leased the premises, this catch basin was open and amply sufficient to carry off all water and debris; that thereafter the defendant, while improving adjacent property, had a grate placed over the catch basin and that this grate was so negligently constructed that during a rainstorm it became plugged up with mud, paper and other debris so that the water could not escape into the storm sewer but ran into the plaintiff's basement to a depth of 10 inches, flooding his stock of goods and damaging it.
A trial of the case resulted in a verdict for the defendant. The plaintiff moved for a new trial, and assigns error here on the denial of that motion as to two special grounds only.
1. Error is assigned on the following excerpt from the charge: "If you find that there occurred such an extraordinary and unforeseen freshet or downpour of rain as could not have been in the contemplation of defendant at the time he accomplished the tortious acts, if you find that he did in fact accomplish such acts, then no recovery can be had, if you find that the loss and damage to plaintiff resulted proximately from such freshet and rain alone." The plaintiff in error contends that the court here confuses the rule of liability in tort with that in contract, this case having been held on demurrer to sound in tort. In an action on a contract those damages are recoverable which may reasonably be considered to have been within the contemplation of the parties, while in tort the wrongdoer is liable for all consequences which naturally and proximately follow from his wrongful act, and it is immaterial that such damages were not within the contemplation of the parties at the time the contract was made. Carr & Co. v. Southern Ry. Co., 12 Ga. App. 830 (79 S. E. 41). The charge here is not approved.
2d 698); Stallings v. Georgia Power Co., 67 Ga. App. 435 (20 S. E. 2d 776); Whitaker v. Jones, McDougald, Smith, Pew Co., 69 Ga. App. 711 (26 S. E. 2d 545). The charge as given means in effect that if the injury resulted from such an unusual, extraordinary and unforeseeable downpour of rain as the defendant could not have anticipated, and if the damage resulted only from the unforeseeable freshet without negligence on the part of the defendant entering into it, the defendant would not be liable. Close examination of this part of the charge together with the entire charge on negligence leads to the conclusion that the jury could not otherwise have understood the language. Accordingly, this special ground fails to show reversible error.
2. Special ground 2 assigns error on the admission into evidence of a plat of the defendant's property showing the location of the catch basin on the ground that "it hasn't been shown by competent evidence to properly represent what it does; he doesn't show that he made the plat; he doesn't show that he's checked the metes and bounds." The error is contended to be harmful because the plat shows the catch basin not to be on the defendant's property, whereas it is contended that the deed introduced by the defendant without objection, together with other evidence, shows that the catch basin was, at least partly, on the defendant's property. As we understand the law of the case as laid down when the record was here on a judgment relating to the demurrers, it is that the only actionable negligence alleged was the faulty construction and maintenance by the defendant of the catch basin on property adjacent to that leased by the plaintiff. Under the evidence this narrowed the issue to the question of whether the act of the defendant in placing a certain grate over the basin (it being undisputed that the defendant did so) was negligence which proximately caused the plaintiff's injuries. It would follow from this that whether the easement, on the farther edge of which the catch basin was located, was a part of the property deeded to the defendant or was only a deeded use to the defendant would be immaterial, and no harm would result from the admission of such plat. Since, however, the property is described in the deed by reference to the plat, and since the defendant testified positively from his own knowledge and without objection to the substantial items shown by the plat, including the location of the drain as being 63 feet from the basement in question and not on his property, the plat was at least admissible for what it was worth to illustrate the witness's testimony. Lively v. Thompson, 88 Ga. App. 31, 33 (75 S. E. 2d 846).
The trial court did not err in denying the motion for new trial. The defendant in error has filed a cross-bill in this case assigning error on certain demurrer rulings adverse to him, which, in view of the decision in this case, need not be passed on.
Judgment affirmed on main bill of exceptions. Cross-bill dismissed. Gardner, P. J., and Carlisle, J., concur.
Smith, Field, Doremus & Ringel, Arthur B. L. Martin, H. A. Stephens, Jr., contra.
Ben J. Camp, A. Tate Conyers, for plaintiff in error.
Saturday May 23 00:51 EDT

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