1. In a suit against a municipality for maintaining a sewer as a nuisance, it was not error to admit evidence of increased flow of water, through a sewer or drain running across the plaintiff's property, after the paving of a highway by the State Highway Department, where the city maintained the highway in question as a city street after it had been paved.
2. The charges of the court to the jury, complained of in special grounds 3 and 4 of the motion for new trial, were authorized under the facts of the case and were not error for any reason assigned.
3. The charge to the jury, to the effect that if the sewer was formerly adequate but later became inadequate to carry the surface water from an ordinary rainfall and overflowed onto the plaintiff's property to the defendant's knowledge, then the maintenance of such conditions would constitute a nuisance, was authorized by the evidence and was not error for the reason assigned.
4. A municipality is liable for maintaining a storm sewer or drainage system which, through changed conditions, becomes inadequate to remove surface water and results in a nuisance to a property owner adjoining the sewer; and the charge to this effect was not error.
5. The request to charge that proof of danger to life or health of the plaintiff was essential to a recovery under the first count of the petition was substantially covered by the general charge, and it was not error to refuse to charge such request.
6. The request to charge that the plaintiff could not recover if her damage resulted solely from the increased flow of water caused by the paving of said highway was not a correct statement of the law applicable to the facts of this case, and the refusal to give that request was not error.
7. The evidence authorized the verdict for the plaintiff, and the court did not err in denying the motion for new trial.
Mrs. Pearl Cannon filed an action against the City of Macon on November 10, 1948, for damages to certain real property which she owned there. Her petition in three counts was held good as against the defendant's general demurrers in Cannon v. City of Macon, 81 Ga. App. 310
(58 S. E. 2d 563), it being there ruled that a cause of action was set forth in each of the three counts against the city for maintaining a nuisance. The allegations of the petition are fully stated in the report of that case, but will be summarized here.
In the first count, the plaintiff alleged that, since 1947, she has owned a house and lot on the north side of Clinton Street in the City of Macon, and that a storm sewer runs across her lot and under her house, at which point the sewer is about three feet wide and four feet deep, with concrete floor and walls underground and a curved, concrete top above the ground. The sewer begins at the intersection of Center Street with the south side of Emery Highway in the City of Macon, then runs south across Lee, Garden, and Hydrolia Streets and parallel to Center Street, and then turns southeast, running parallel to Clinton Street and under the plaintiff's house. The sewer is partly an open ditch and, where it passes under the streets and across some portions of the land between the streets, is a covered storm sewer. The ditch was originally a natural drain, carrying the rainfall from adjacent areas, and was of sufficient size to carry all natural rainwater from the area without overflowing or damaging the adjoining property. Over the years, the City of Macon has greatly increased the amount of water flowing into this sewer by paving many of the streets in the area near the sewer and by connecting storm sewers from the paved streets to the sewer running beneath the plaintiff's house. Specifically, in 1944, the City of Macon constructed Emery Highway, making a four-lane paved street of what had formerly been a small dirt street. In constructing this highway, the defendant city located storm sewers to collect the rainwater falling upon Emery Highway within 100 to 200 yards in either direction from the intersection of Emery Highway and Center Street, and channeled such water into the storm sewer beginning there. The amount of water emptying into said sewer has been tripled by the paving of Emery Highway, because water formerly was absorbed into the street itself or else by natural flow and seepage went to other points. In 1946, the defendant city widened and paved Center Street for three blocks from Emery Highway down to Clinton Street and installed storm sewers leading from Center Street to the sewer running beneath the plaintiff's house, which also increased the amount of water flowing into said sewer, because all of the water falling on Center Street from Emery Highway to Clinton Street was collected and channeled into said sewer, while formerly much of the water was absorbed into the street and the ground between Center Street and the sewer, and the natural flow of the water was formerly downhill along Center Street and away from the sewer. The direct result of the defendant's actions in increasing the flow of water in the sewer underneath the plaintiff's house has been to cause an amount of water exceeding
the capacity of the sewer under the plaintiff's house to be emptied into it during any normal rain. The water rushing through the sewer where it crosses the plaintiff's property has washed holes in the walls, floor, and top of the sewer, so that at times of normal rainfall water leaves said sewer and washes into the plaintiff's adjoining land, gradually washing away the ground and undermining the foundations of the plaintiff's house. During the heavy rains occurring in January and February, 1948, the volume of water passing into said sewer was so great that three pillars under the plaintiff's house were undermined and caused to sink several inches. Holes were washed below the concrete floor of the sewer itself, so that water remains stagnant in the holes breeding mosquitoes and rendering the premises sickening and unhealthful. The effect of the sinking of the pillars beside the sewer and under the plaintiff's house has been to remove the support from the house, damaging it in certain respects and rendering it unsafe and dangerous to the life and health of the plaintiff and her family. As a result of the damage, the market value of the plaintiff's house has been decreased from $3,500 to $2,000, a difference of $1,500, for which the suit was brought. The defendant city's acts of increasing the flow of water in said sewer beyond its capacity, and thereby damaging the plaintiff's property, constitute a nuisance.
The allegations of the second count are substantially the same as those of the first, with the following additional allegations, in substance: More than twenty years ago, the City of Macon began to empty various storm sewers into said ditch, and thereafter regularly used and controlled said ditch by making repairs upon it, and so adopted and took it over as a part of the drainage system for that part of the city. The city made concrete walls and a floor for the part of the ditch on the lot adjoining the plaintiff's in 1942, placed rock reinforcements along the sides of the sewer near Hydrolia Street in 1948, and regularly removed debris from the sewer below the plaintiff's house after every heavy rainfall for the past seven years. The defendant failed to increase the size of the sewer running beneath the plaintiff's house to take care of the additional surface water emptied into it and made no provision to dispose of such additional water. The defendant had notice of the insufficient capacity of the sewer prior to the damage complained of and refused to remedy it. The damage to the plaintiff's property was caused by the negligence of the defendant city, through its agents and servants, in the following particulars: (a, b) in failing to inspect and keep in repair the sewer located on the plaintiff's property; (c) in failing to maintain the sewer so as to confine the water to the sewer itself; (d) in failing to provide for the control of the water in the sewer after emptying water into it from other storm sewers; (e) in failing to determine the capacity of the sewer under the plaintiff's house to handle the volume of water emptying into the sewer; (f) in failing to enlarge the sewer after notice that it was of insufficient capacity; (g) in increasing the paved surfaces of the streets near the sewer and channeling the increased volume of water collecting on such streets into the sewer beneath the plaintiff's house; (h) in failing, after notice of inadequacy, to construct additional storm sewers to provide for the increased volume of surface water accumulating within the area surrounding the sewer; and (i) in maintaining an inadequate storm sewer on the plaintiff's property. The inadequate storm sewer under the plaintiff's house overflowed during any normal rainfall, and was a continuing nuisance; and the city was negligent in maintaining a nuisance on the plaintiff's property.
The third count of the petition was not insisted upon at the trial of the case, and the court instructed the jury not to consider it.
The defendant in its answer admitted only the alleged description of the sewer passing under the plaintiff's house, and that the sewer was partly covered above the plaintiff's lot. The defendant also contended that it did not increase the flow of water in the sewer beyond its capacity, and therefore did not cause any damage to the plaintiff.
The jury was unable to reach a verdict on the first trial of the case, and on the second trial returned a verdict in favor of the plaintiff on counts one and two for $1,500, the amount sued for. The defendant's amended motion for new trial was denied, and the exception here is to that judgment.
1. In special ground 1 of the motion for new trial, the City of Macon complains that the court erred in admitting evidence of an increase in the flow of water due to the paving of Emery Highway, over the objection that it appeared from the evidence that Emery Highway was not constructed and paved, or its surface water drainage planned or installed, by the City of Macon; that, on the contrary, it appeared from the evidence that this was done by the State of Georgia and was financed by the United States Government, pursuant to a resolution previously adopted by the Mayor and Council of the City of Macon; that consequently the City of Macon was not liable for any damage by water from Emery Highway as a joint tortfeasor in directing or participating, either as principal or agent, in a nuisance; and that the pertinent parts of the resolution were as follows: "Georgia, Bibb County. Whereas, the State Highway Department and the County of Bibb desire to construct a road between Macon and Camp Wheeler known as Federal Aid Project No. SN-FAP 2479-A(1); And, whereas, the project will extend within the corporate limits of the municipality, town, or city of Macon. It is resolved, that we, the Mayor and Members of the Council (or other officer or officers) charged with the management of the finance of said Municipality of Macon, and the legally authorized agents of said town or municipality hereby guarantee to the State Highway Department of Georgia and the County of Bibb any and all rights-of-way that may, in the opinion of the State Highway Department of Georgia, be necessary to the proper construction of the above named project, and according to survey as made by engineers of the State Highway Department, within the corporate limits of the said municipality, the same being between survey stations [as designated] and a width of varied feet as shown on sheet two."
In special ground 2, error is assigned on the admission in evidence of a certified copy of the resolution set out above, over the same objection.
In both grounds, the movant contends that this evidence was prejudicial because a controlling issue of fact in the case was whether the City of Macon had, by constructing Emery Highway and Center Street and by constructing sewers from these streets to the sewer which ran under the plaintiff's house, increased the flow of water through the portion of the sewer on the plaintiff's property beyond its capacity and had thereby damaged her property.
As ruled in Cannon v. City of Macon, 81 Ga. App. 310
(58 S. E. 2d 563), this action is brought upon the theory that the city was maintaining a nuisance. The evidence showed that the city maintained Emery Highway as a city street after its construction, and that the alleged nuisance resulted from the inadequacy of the ditch or storm sewer to carry the increased flow of waters running into it. It was therefore immaterial that the city itself had not paved the street, for it was the city's duty to provide for drainage of the increased run-off of surface water from increased impervious areas within its limits, whether such areas were made directly by the municipality, or under the circumstances and in the manner here shown. City of Macon v. Roy, 34 Ga. App. 603
, 604 (130 S. E. 700); City of Macon v. Macon Paper Co., 35 Ga. App. 120
(132 S. E. 136); City of Macon v. Douglas, 45 Ga. App. 798
(165 S. E. 922); Phinizy v. City Council of Augusta, 47 Ga. 260
, 268; Mayor &c. of Albany v. Sikes, 94 Ga. 30
(20 S. E. 257, 26 L. R. A. 653, 47 Am. St. R. 132); Langley v. City Council of Augusta, 118 Ga. 590 (8)
(45 S. E. 486, 98 Am. St. R. 133). The paving of Emery Highway was only one of the changed conditions which resulted in the inadequacy of the drainage system running across the plaintiff's property, according to the evidence; and it was not error to admit evidence of increased flow of water in the ditch, occurring after Emery Highway was paved and to admit the resolution of the City Council of Macon, guaranteeing the rights-of-way for the highway to the State Highway Department.
2. In special ground 3 of the motion for new trial, error is assigned on the following part of the charge to the jury: "The power to construct and maintain a system of drainage does not carry with it the right to maintain it in such a way as to endanger the health of the inhabitants or injure their property"; and in special ground 4 complaint is made of another part of the charge, as follows: "The grading and drainage must be done so that the same will not prove a nuisance to the citizens, impairing the health of the families and producing noxious scenes thereby rendering the enjoyment of their property impossible. If it be so done, the city will be liable for damages." It is contended that there was no evidence of the sewer's impairing or endangering health, or of its producing noxious scents, such as would authorize the charges set out above.
The plaintiff testified: "There's water stands in that thing all the time up under my house, practically all the time . . . As to whether or not water stands in the sewer or in the caves, as I call it, that is washed out in the ground, it does stand under the house there practically all the time, in two or three places. As to whether or not I have noticed any mosquitoes around that area, oh, yes, we have plenty of mosquitoes when that water stands under that house and in that ditch." Mrs. Mittie Smith, who lived next to the plaintiff, testified: "I have seen things wash down that sewer and lodge in the ditch there behind my house. Well, most anything. There's been dogs, dead dogs and dead cats and tin cans. There certainly are mosquitoes around in that ditch. There are plenty of them." Mrs. Fannie White, who lived below the plaintiff and Mrs. Mittie Smith, testified: "In that ditch behind the house there are plenty of mosquitoes back there, and Mrs. Smith has a high wall there in the bottom of the ditch, cemented ditch, and where the water leaves the ditch at the corner of her lot and my lot joins them the water is so swift and it digs a hole down in there and that is where usually the water stands at all the time." Joell C. Beall, a sanitary engineer with the City-County Health Department, testified that he had made an inspection of the premises in 1948 and found mosquitoes breeding, but not disease-carrying mosquitoes, and that he did not recall seeing any dead animals. While this witness also testified that he did not find any condition which would endanger the life or health of anyone, with respect to the ditch, his opinion was not binding on the jury; and, from the testimony of those residing along the ditch that water stagnated in the ditch, that mosquitoes bred there, and that dead animals and tin cans lodged in it, we think that the jury was authorized to draw an inference that such conditions produced offensive odors and were dangerous to the health of persons living nearby. This was sufficient circumstantial evidence to support the charges complained of in special grounds 3 and 4.
3. In special ground 5, the movant contends that the court erred in charging the jury "that if you find that, prior to the paving of Emery Highway and Center Street, or either of them, the sewer underneath the plaintiff's house was of sufficient capacity to carry the water coming therein as a result of an ordinary rainfall, and if you should find that, as a result of the paving of Emery Highway and Center Street and the installation of sewers running from such streets to said ditch, the amount of water flowing underneath plaintiff's property as a result of an ordinary rainfall is greater than the capacity of the sewer underneath the plaintiff's home, and if you should find that, as a result of said increase in water in said sewer, the same overflows onto plaintiff's property, and if you should find that the defendant had knowledge of this condition, the maintenance of such condition thereafter would constitute a nuisance, and the defendant City of Macon would be liable for the resulting damage therefrom to the property of the plaintiff."
It is contended that this charge is an incorrect statement of law, as the facts assumed in the charge do not constitute a nuisance, inasmuch as whether the city maintained a nuisance depends upon whether the city negligently maintained the sewer or whether the sewer injuriously affected the health of the plaintiff. It is further contended that there was no evidence that, as a result of the paving and installation of the sewers referred to, the amount of water flowing underneath the plaintiff's property as a result of an ordinary rainfall was greater than the capacity of the sewer under the plaintiff's house; that there was no evidence that the sewer overflowed the plaintiff's property as the result of the increased water in it; and that the evidence of increased flow from Emery Highway should not have been submitted, for the reasons set out in the first special ground, as dealt with in the first division of this opinion.
558, 57 S. E. 2d 593); and, in an action based only upon negligence, the municipality is not liable for damage caused by the negligent maintenance of its system of sewerage and drainage. City Council of Augusta v. Williams, 81 Ga. App. 132
(58 S. E. 2d 208); Foster v. Mayor &c. of Savannah, 77 Ga. App. 346
(48 S. E. 2d 686). But it was further stated in the Foster case (at p. 349): "Where a municipality in the exercise of its functions, both governmental and ministerial, creates a nuisance which is specially injurious to an individual, such individual may have a cause of action for damages, and negligence is not an essential ingredient of the action. City of Macon v. Roy, 34 Ga. App. 603
, 605 (130 S. E. 700). Also see City of Macon v. Macon Paper Company, 35 Ga. App. 120
(132 S. E. 136); Langley v. Augusta, 118 Ga. 590
, 598 (45 S. E. 486, 98 Am. St. R. 133); Kea v. Dublin, 145 Ga. 511
(89 S. E. 484)." Code 72-101, provides: "A nuisance is anything that works hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary reasonable man." "To constitute a nuisance, it is not necessary that the noxious trade or business should endanger the health of the neighborhood. It is sufficient if it produces that which is offensive to the senses, and which renders the enjoyment of life and property uncomfortable." Coker v. Birge, 9 Ga. 425
, 428 (54 Am. D. 347); Benton v. Pittard, 197 Ga. 843
, 844 (31 S. E. 2d 6, 153 A. L. R. 968).
An interference with the natural flow of surface water may also amount to a nuisance, without the presence of the element of danger to health. In the case of Mayor &c. of Albany v. Sikes, 94 Ga. 30 (20 S. E. 257, 26 L. R. A. 653, 47 Am. St. R. 132), the opinion of Chief Justice Warner in Phinizy v. City Council of Augusta, 47 Ga. 260, was approved and restated as follows: "Indeed, most of the authorities follow the doctrine that, even as to surface water, one landed proprietor has no right to concentrate and collect it, and thus cause it to be discharged upon the land of a lower proprietor in greater quantities at a particular locality, or in a manner different from that in which the water would be received by the lower estate if it simply ran down upon it from the upper by the law of gravitation." And in the Phinizy case, 47 Ga. 260, 266, it was stated: "If, by the introduction of an increased quantity of water into the city by means of the canal, when added to the natural fall of water thereon, the drains and sewers constructed by the defendants to carry off such water cause a greater quantity of water to be thrown onto the plaintiff's land than would otherwise be there, it is a nuisance, for which he may maintain his action for damages." Bass Canning Co. v. MacDougald Const. Co., 174 Ga. 222 (162 S. E. 687), was a case where the court held that the first count of the petition set out a cause of action based on a nuisance resulting from the closing of a storm-sewer opening by the City of Milledgeville, causing surface water to run into the plaintiff's storage room and damage the goods stored in it. There was no allegation of injury to health in that case.
From these authorities, we conclude that the charge as given was not error for the reason assigned, and that the facts upon which the charge was based would constitute a nuisance. The cases of Southland Coffee Co. v. City of Macon, 60 Ga. App. 253 (3 S. E. 2d 739), and Lawrence v. City of LaGrange, 63 Ga. App. 587 (11 S. E. 2d 696), cited and relied upon by the plaintiff in error, are not in point and are distinguishable from the present case. In Southland Coffee Co. v. Macon, it appeared that the drainage system was inadequate only in that it failed to remove the run-off from one extraordinary rainfall, and such inadequacy could not have been the result of negligence, nor did it result in a continuing, abatable nuisance. In Lawrence v. City of LaGrange, supra, the cause of action was for permanent damage to the plaintiff's property by reason of a completed trespass, and the suit was not brought within four years from the accrual of the right of action.
The defendant's contention that there was no evidence to support this charge is without merit. The plaintiff testified that a covered portion of the sewer was under her house when she bought it in 1947, just after the paving of Center Street and the connection of its drains to the sewer, and about three years after the paving of Emery Highway; that at this time the sewer under her house was in pretty fair condition, causing no trouble; that, since that time, a large piece of the concrete cover fell into the lower end of the sewer under her property and also large holes have been washed out of the bottom and sides of the sewer, causing the pillars of her house to sink with attendant damage to the house; that, since she moved into the house, when there would be an ordinary or regular heavy rain, not a storm, there would be a lot of water in the sewer, which sometimes overflowed; that on one such occasion the water was knee deep in her yard and was coming over from Mrs. Beck's yard like a waterfall besides from the ditch running over; that the sewer was open above Mrs. Beck's house and overflowed there, too; that it was coming from the sewer because there was so much water that the sewer opening (at Mrs. Beck's) could not take care of the water coming down through the ditch from the other sewers, and the water just came down over the top of it; that any water which might do her any damage has come from the streets above her since they were paved and the water running from them into the ditch; that, even when there is a light rain, the water whips around in the holes washed in the sewer under her property; that an ordinary rain fills it up; that the water stands in the sewer under her house practically all the time; that, when the sewer is about half full, the water goes out of the holes washed in the side of the sewer and into the ground, undermining her house; that the sewer has overflowed about five or six times since she has been in the house; that any normal rain will fill the ditch and cause a tremendous flow of water to come down into it.
Mrs. Mittie Smith, who lived in the house next to the plaintiff's and downstream on the ditch, testified that she had lived there for 15 to 20 years; that more water came into the ditch since Emery Highway was paved; that it was washing out more than it did before; and that, since the paving of Center Street (running from Emery Highway to Clinton Street, nearly parallel to the upper part of the ditch), it did not seem that there was as much water coming down Clinton Street in front of her house.
Mrs. H. M. Arrington testified that she lived with Mrs. Mittie Smith, and that the sewer, in recent years, overflowed at the plaintiff's house and the water ran down under their house.
W. J. Glisson testified: that he lived where the ditch crossed Hydrolia Street, above the plaintiff's property, and had been there since 1936; that three or four feet more of water came down the ditch in an average rain after the paving of Emery Highway and Center Street, and after other sewers were added to the ditch; that, since that time, the water had begun to wash away the bank of his yard, but had not done so before Emery Highway was built and never got so high as to come over a little wall in the bottom of the ditch; that, after a hard rain, three times more water came down the ditch, while the water was never more than a foot deep before the other sewers were turned into the ditch; that the ditch got four feet deep or overflowed four or five times in some summers and one or two times in other summers; and that the ditch was pretty bad in the fall when it rained constantly, and then the whole time in winter.
Mrs. Fannie White, who lived two houses below the plaintiff and beside the ditch testified that about two or three times as much water flowed in the ditch after the paving of Emery Highway as before and that no more water flowed into the ditch from other people's property than it did nine years previously.
J. H. Wooten testified that twice as much water went through the ditch after Emery Highway was paved as before, and that it flooded above the closed part of the sewer running under his house on Lee Street, which was above the plaintiff's house.
Mrs. Mattie L. Meadows testified: that she had lived since 1944 on the north side of Garden Street, where the sewer crosses beneath it; that a storm sewer leading from Center Street under Garden Street was connected to the sewer in question in 1947 that, after that was done, the water began to come across her lot and go through her yard, from the point where the open ditch went into the closed sewer across her lot; and that the water had not overflowed before the sewer from Center Street was put in.
The evidence that both Emery Highway and Center Street were unpaved and not drained before 1944 and 1947, and that after these streets were paved and then drained into the sewer running under the plaintiff's house, the flow of water coming through this ditch or sewer was greatly increased and overflowed at the plaintiff's property and at several other points, tended to show that the flow was greater than the capacity of the drainage system as a result of the paving and draining of Center Street and Emery Highway. No other explanation was advanced for the increased flow of water. Also, such overflowing did not occur only once, but there was evidence that the conditions of overflowing and washing occurred frequently, and hence were not the result of extraordinary rains, as contended by the defendant. William H. Miller, a meteorologist for the U. S. Weather Bureau at Cochran Field, near Macon, testified that there were at least ten days of what he referred to as excessive rainfall (more than .25 inches of rain in a five-minute period) during 1951, a dry year, and that such excessive rainfall on occasions is to be expected and is normal. The evidence above set out authorized the charge complained of, which was not an erroneous statement of law as contended in special ground 5.
5. In special ground 7 it is contended that the court erred in refusing to give the following timely written request to charge: "I charge you that in order for the plaintiff to recover under count one, it is essential that she prove that there was danger to life or health of herself or any other person lawfully occupying her premises." The matter in issue to which the request was said to be adjusted was whether the facts brought out by the evidence constituted a nuisance under count one, and it is contended that the failure to give such request was prejudicial because the plaintiff in count one did not allege negligence on the part of the city, and it was therefore incumbent upon her to prove danger to life or health, as alleged in count one.
But the court charged the jury to determine from the evidence whether or not the City of Macon had placed an additional burden over and above the normal burden that was to be reasonably expected on the sewer or drainage ditch across the plaintiff's property to such an extent that the sewer was proximately damaged thereby, or overflowed and conditions resulted proximately therefrom which would constitute a nuisance. If the jury did not so find, they were instructed to return a verdict on count one for the defendant. The court had previously charged that the power to construct and maintain a system of drainage does not carry with it the right to maintain it in such a way as to endanger the health of the inhabitants, and that the drainage must be done so that it would not prove a nuisance to the citizens, impairing the health of families and producing noxious scents and thereby rendering the enjoyment of their property impossible. The request was substantially covered by the general charge, and the court did not err in refusing to give the charge as requested.
6. In special ground 8, error is assigned upon the court's refusal to give a request to charge that the plaintiff could not recover if the jury found that her damage was the result of increased water from the paving of Emery Highway alone. It is doubtful whether such a finding would have been authorized under the evidence, but the request is not a correct statement of the law applicable to the facts of this case, for the reasons stated in the first division of this opinion.
7. The plaintiff's evidence has been set out at length in the consideration of the special grounds of the city's motion for new trial. The city's contentions in support of the general grounds of its motion are: (1) that there was no evidence of an amount of water exceeding the capacity of the sewer or ditch under Mrs. Cannon's house during any normal rain; (2) that there was no evidence that the sewer was adequate to carry natural rainwater from the adjacent area without damage to adjoining property before the paving of Emery Highway and Center Street; (3) that the evidence failed to show that water from the paved streets rather than other water caused the plaintiff's damage; and (4) that the evidence failed to show a nuisance. From such of the evidence as has been herein set out, it will be seen that these contentions are without merit. The evidence authorized the verdict, and the court did not err in denying the motion for new trial.
Judgment affirmed. Felton and Quillian, JJ., concur.