Opinion
36417.
DECIDED JANUARY 11, 1957.
Tort; damage to realty. Before Judge Paschall. Gordon Superior Court. July 27, 1957.
J. G. B. Erwin, Beverly Langford, Pittman, Kinney Pope, for plaintiff in error.
R. F. Chance, contra.
1. Duplicity is a ground for special demurrer.
2. A charge correct in part, though imperfect, cannot be excepted to as a whole.
3. Where different elements of damages are claimed, for which there are different rules for estimating damages, the different rules should be given in charge to the jury even without a written request.
DECIDED JANUARY 11, 1957.
Mollie Avery filed an action in Gordon Superior Court against the Southern Railway Company for damages arising from certain alleged trespasses upon her land.
The petition as amended alleged in substance: That the plaintiff owned approximately 25 acres of land, fenced and sowed for pasture, which was immediately west of the defendant's right-of-way; that there was a spring on the land; that the plaintiff kept several head of cattle in the pasture; that as the result of certain construction of the defendant great amounts of dirt and gravel were caused to overflow onto the plaintiff's property completely covering up the fence on the east side of the pasture; that the overflow rendered the pasture useless for the upkeep of livestock for a period of sixteen months; that the wet and soggy condition of the sour land gave off offensive odors and caused mosquitoes; that the plaintiff was deprived of full and unrestricted enjoyment of her home as a result of this condition; and that there was a spring located in the pasture which was damaged.
In the petition as originally drawn the plaintiff alleged the following damages: $480 for rental value of the pasture; $500 for damage to the spring; $400 for permanent damage to pasture; $15 for damage to fence; $1,500 for personal inconvenience caused by the condition alleged which prevented the plaintiff from having full enjoyment of her property. The plaintiff amended the petition, striking all allegations as to permanent damages to the property and alleged the following damages: reasonable rental value of the pasture including spring, $800; temporary damage to fence, $100; and damages resulting from personal inconvenience and deprivation of full use of her home caused by the matters alleged, $1,500.
The defendant filed special demurrers to the petition. Some of these were overruled, and to these adverse rulings the defendant excepted. The case proceeded to trial and resulted in a verdict for the plaintiff. The defendant made a motion for new trial which was denied and it excepted.
1. The petition as originally drawn alleged $480 damage for rental value of the pasture; $500 damage to the spring in the pasture; $400 permanent damage to the pasture; $15 damage to the fence; and $1,500 for the loss of the full enjoyment of plaintiff's home. The plaintiff later amended the petition by striking all allegations as to permanent damages to the property and added the following allegations of damages: $800 rental value of the pasture and spring; $100 damage to the fence; and $1,500 for loss of the full use of her home. The defendant specially demurred to the petition on the ground that the allegations as to the fence, spring, pasture and use of plaintiff's home were duplicitous. The plaintiff did amend the petition as to the fence, spring, pasture and full use of the home, but the original allegations as to these same damages were never stricken, leaving the petition duplicitous as to above stated damages. The trial judge erred in failing to strike these duplicitous allegations.
2. Special ground 1 of the amended motion for new trial insists that the following charge was not correct as an abstract principle of law: "I give you in charge Code Section 105-1407 of the Code of Georgia: `The owner of land through which nonnavigable watercourses may flow is entitled to have the water in such stream come to his land in its natural and usual flow, subject only to such detention or diminution as may be caused by a reasonable use of it by other riparian proprietors; and the diverting of the stream, wholly or in part, from the same, or the obstructing thereof so as to impede its course or cause it to overflow or injure his land, or any right appurtenant thereto, or the pollution thereof so as to lessen its value to him, shall be trespass upon his property.' If you find that the defendant has committed any act there under the provisions of that section, and that the plaintiff has been damaged, and if Mrs. Avery has carried the burden of proof and is entitled to a verdict at your hands, it would be your duty to write a verdict for the plaintiff for whatever amount you think would be right and reasonable and just and fair to both parties in this case. In that event the form of your verdict would be `We, the jury, find for the plaintiff so many dollars and cents.' If the plaintiff has not carried the burden of proof at your hands, it would be your duty to write a verdict for the defendant. In that event the form of your verdict would be `we, the jury, find for the defendant.'"
In Danzley v. State, 25 Ga. App. 170 (10) ( 102 S.E. 915), this court held: "Where a ground of a motion for a new trial contains a lengthy excerpt from the charge of the court, of which at least a part is abstractly correct, and the only assignment of error is: `Movant contends that this is error because it is not a correct statement of the law,' it affords no cause for a new trial. Cobb v. State, 76 Ga. 664 (1); Miller v. State, 121 Ga. 135 (2) ( 48 S.E. 904); Graham v. State, 125 Ga. 48 (3) ( 53 S.E. 816)." A part of the criticised charge was certainly correct. Special ground 1 of the amended motion for new trial in this case is thus without merit.
3. Special grounds 2 and 3 assign error upon the trial judge's failure to give the jury any lawful standard for computing elements of damages alleged in the petition. The petition alleged several elements of damages. Different rules apply in arriving at the amount recoverable under each of them. The trial judge charged the jury the following: "Gentlemen, there has been certain evidence introduced for your consideration, the opinion of witnesses as to the amount that the plaintiff was damaged. I charge you that the jury is not bound by the opinions of the damage, but you may take the evidence from the opinions of witnesses and consider it along with the other facts and circumstances upon the trial in arriving at what would be reasonable compensation for damages inflicted, if you find that the plaintiff is entitled to recover, if you find, first, that she has been damaged, and if so, whether or not the defendant is liable. . . If you find that the defendant has committed any act there under the provisions of that section, and that the plaintiff has been damaged, and if Mrs. Avery has carried the burden of proof and is entitled to a verdict at your hands, it would be your duty to write a verdict for the plaintiff for whatever amount you think would be right and reasonable and just and fair to both parties in this case."
In Gainesville Transfer Co. v. Chandler, 47 Ga. App. 409 ( 170 S.E. 558), it was held: "Where different elements of damages are claimed, for which there are different rules for estimating damages, the different rules should be given in charge to the jury, though there be no written request so to do. The charge of the court in this case was lacking in this respect, and may have confused the jury and caused them to apply to one element of damages the rule applicable to the other."
Except for the above quoted excerpts from the charge, no rules were given to the jury by which to determine the amount of damages to be assessed if they found in favor of the plaintiff. After a careful consideration of the entire charge, we are of the opinion that the trial judge erred in failing to charge the jury the rules for determining the different elements of damages alleged in the petition. Southern Ry. Co. v. O'Bryan, 112 Ga. 127 ( 37 S.E. 161); A. B. A. R. Co. v. Barnwell, 138 Ga. 569, 570 (5) ( 75 S.E. 645); Mayor c. of Washington v. Harris, 144 Ga. 102 (2) ( 86 S.E. 220); Brown v. Wells, 161 Ga. 413 ( 131 S.E. 159); City of Barnesville v. Parham, 44 Ga. App. 151 ( 160 S.E. 879).
Judgment reversed. Felton, C. J., and Nichols, J., concur.