Ready-Mix Concrete Co. v. Rape

106 S.E.2d 429, 98 Ga. App. 503
Court of Appeals of Georgia·Decided October 16, 1958·No. 37244, 37245·Published·Cited by 17 cases

Opinions

Quillian, Judge.

The defendant contends that the petition [509]*509failed to set forth a cause of action because an action for exemplary damages cannot be combined in the same count of a petition. With this contention we do not agree. Wrongful damage to real property caused by a concussion from blasting with dynamite is direct, and constitutes a trespass to. realty. Brooks v. Ready Mix Concrete Co., 94 Ga. App. 791 (96 S. E. 2d 213). The petition in the present case is very similar to that in the Brooks case except as to the allegations that the defendant “wilfully, wantonly, recklessly, and intentionally” caused the explosions which resulted in damage to the plaintiff’s house. In Savannah Electric &c. Co. v. Horton, 44 Ga. App. 578 (2) (162 S. E. 299) the rule is well stated: “In every tort there may be aggravating circumstances, which may exist 'in the act’, as well as in the intention, and in that event the jury may award additional or exemplary damages. Civil Code (1910), § 4503. If a person commits a trespass with knowledge that he is acting without right, exemplary or punitive damages may be awarded. Watkins v. Gale, 13 Ill. 152; Mississippi River Logging Co. v. Page, 68 Minn. 269 (71 N. W. 4); St. Clair v. Cash Gold Mining Co., 9 Colo. App. 235 (47 Pac. 466). While it may be true that the burden is upon the plaintiff to prove that the trespass was wilful (Milltown Lumber Co. v. Carter, 5 Ga. App. 344 (3), 63 S. E. 270), evidence that the trespass was committed upon property which the defendant knew belonged to another would be sufficient for this purpose. Cf. City & Suburban Railway v. Brauss, 70 Ga. 368 (2); Georgia Railroad v. Homer, 73 Ga. 251 (2).

“(a) The jury were authorized to- find that the damage to the property amounted to as much as $200, and the verdict for $250 was not contrary to law nor to the evidence- because it must have included at least $50 as punitive damages; nor was the charge upon the subject o-f punitive damages erroneous as being unwarranted by the evidence.” See also 52 Am. Jur. 878, § 5,7.

Under authority of the above cited cases the- trial judge did not err in overruling the general demurrer to the petition.

The defendant demurred specially to paragraph 19-A as amended as alleging conclusions not supported by allegations of fact: Paragraph 19-A alleged: “Several residents of the Sum[510]*510merville Park Subdivision, to wit: The plaintiff, Mr. Matthew H. Wagner, Mrs. Elenor Glover and other persons whose names are unknown to the plaintiff notified the officers and agents of the defendant, specifically A. W. Ledbetter, president, and Alfred Carter, secretary and treasurer, that the explosions were causing extensive damage to their respective homes and requested that the explosions be controlled, limited or reduced so- that additional damage would not occur. The defendant wilfully, wantonly, recklessly, and intentionally not only failed to halt, limit or restrict its operations, but continued to cause severe explosions resulting in the damage to the plaintiff as aforesaid.” Under the holding in division 1 of this opinion the above quoted allegations of fact if proved would be sufficient to make a question for the jury’s determination as to whether the plaintiff was entitled to' exemplary damages. The trial judge did hot err in overruling the above special demurrer.

There were other special demurrers which were either cured by amendment or are without merit and we do' not feel a discussion of them is necessary.

The only general ground of the motion for new trial insisted on is that the verdict was not supported by the evidence. The defendant, in an interesting and thorough brief, splendidly presents various reasons why, as it contends, the evidence adduced upon the trial was insufficient to prove the plaintiff’s case.

■ The defendant asserts that the evidence introduced by the plaintiff was circumstantial, and was too vague, inconclusive and speculative to establish that the explosions ignited by the defendant damaged his house. The defendant cites cases in which circumstantial evidence was too indefinite and conjectural to prove the plaintiff’s right to recover. We recognize the rule stated in Cheeves v. Danielly, 80 Ga. 114, 116 (4 S. E. 902), “If the act complained of, though it might in some degree contribute to' the injury, is so small or of such character as would not itself produce the injury, and is of itself an innocent act, and there are other and contingent circumstances which greatly preponderate in producing the injury, then the damages cannot be recovered.”

But we think more applicable to factual situations of this case is the rule, “If the evidence for the plaintiff, circumstantial [511]*511though it be, tends reasonably to> establish the theory of the case made by the petition, and preponderates to that theory rather than to any other reasonable hypothesis, it is error to grant a nonsuit.” Callaway v. Hall, 58 Ga. App. 795 (199 S. E. 899).

Here the witness testified to a succession of related events and circumstances from which it could be fairly inferred that the damage to the plaintiff’s house was caused by the explosions set off by the defendant, rather than from some other cause. For analysis of the evidence on this point refer ho the discussion contained in division 9 of this opinion.

It must be noted that in a civil case circumstantial evidence will support a verdict if it preponderates to the hypothesis upon which the plaintiff’s right of recovery is based. Radcliffe v. Maddox, 45 Ga. App. 676, 682 (165 S. E. 841); Georgia Ry. &c. Co. v. Harris, 1 Ga. App. 714 (57 S. E. 1076).

The defendant earnestly urges that the evidence was not sufficient to establish the plaintiff’s cause, because it consisted of mere inferences based on inferences. The ancient rule is stated in Georgia Ry. &c. Co. v. Harris, supra, headnote 3, “Ordinarily it is a rule of circumstantial proof that the facts from which the ■main fact is to be inferred must be proved by direct evidence. An inference resting only upon an inference is not permissible.”

In Lee v. State, 8 Ga. App. 413, 419 (69 S. E. 310) the author of Georgia Ry. &c. Co. v. Harris, supra, Judge Powell wrote: “The language related to the peculiar facts of the case then before the court and was an application of the old doctrine of the law of circumstantial evidence (a doctrine, however, of limited applicability, and, indeed, of doubtful soundness, as it is generally stated), that ‘an inference can not be supported by an inference’ (cf. Ga. Ry. & Elec. Co. v. Harris, 1 Ga. App. 714, 719, 57 S. E. 1076, 1078), rather than the announcement of a general rule on the subject now under discussion.”

For in the instant case there is direct evidence of basic facts and proof of circumstances sufficient to establish the hypothesis claimed. Facts may be ascertained by the witness through any of his senses. Texas & Naro Co. v. Warden, 78 S. W. 2d 164. Here there was direct evidence as to the relative location of the plaintiff’s house and the defendant’s quarry where dynamite [512]

Free access — add to your briefcase to read the full text and ask questions with AI

Ready-Mix Concrete Co. v. Rape, 106 S.E.2d 429, 98 Ga. App. 503 (Ga. Ct. App. 1958).

106 S.E.2d 429 (Ready-Mix Concrete Co. v. Rape) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Gullock v. Spectrum Sciences and Software, Inc.
146 F. Supp. 2d 1364 (M.D. Georgia, 2001)
Jolly v. Jolly
224 S.E.2d 807 (Court of Appeals of Georgia, 1976)
Underwood v. Lowery
212 S.E.2d 5 (Court of Appeals of Georgia, 1974)
Berger v. Plantation Pipeline Co.
173 S.E.2d 741 (Court of Appeals of Georgia, 1970)
United States Fire Insurance v. Tuck
155 S.E.2d 431 (Court of Appeals of Georgia, 1967)
Howell Gas of Athens, Inc. v. Coile
146 S.E.2d 145 (Court of Appeals of Georgia, 1965)
Henderson v. Flood
144 S.E.2d 76 (Supreme Court of Georgia, 1965)
Hitchcock v. Rochelle
123 S.E.2d 268 (Court of Appeals of Georgia, 1961)
Barrow v. Georgia Lightweight Aggregate Co.
120 S.E.2d 636 (Court of Appeals of Georgia, 1961)
Wallace v. A. H. Guion & Co.
117 S.E.2d 359 (Supreme Court of South Carolina, 1960)
Washington Air Compressor Rental Co. v. National Union Insurance
165 A.2d 482 (District of Columbia Court of Appeals, 1960)
Dalon Contracting Co., Inc. v. Artman
115 S.E.2d 377 (Court of Appeals of Georgia, 1960)
Whitehead v. State
114 S.E.2d 379 (Court of Appeals of Georgia, 1960)
Mutual Benefit Health & Accident Ass'n v. Hickman
111 S.E.2d 380 (Court of Appeals of Georgia, 1959)
Ready-Mix Concrete Co. v. Rape
106 S.E.2d 429 (Court of Appeals of Georgia, 1958)