Opinion
33781.
DECIDED JANUARY 17, 1952.
Complaint; from Chattooga Superior Court — Judge Espy presiding. July 23, 1951.
Maddox Maddox, for plaintiffs.
Brinson Davis, Matthews, Owens Maddox, for defendants.
The plaintiffs having failed to prove their case as laid in the petition, it was not error for the trial judge, at the conclusion of the plaintiffs' evidence, to grant the motion for a nonsuit.
DECIDED JANUARY 17, 1952.
Louise Cheney Conner and several other persons brought suit in Chattooga Superior Court against Mrs. Mary M. Wright, and upon her death. Annie C. Bowdoin, executrix of Mrs. Wright, was made a party defendant to the action. It appeared from the petition that the deceased Mrs. Wright held a life estate in certain described lands; that the plaintiffs held remainder interests; that the defendant had taken possession and control of the estate to their exclusion and with utter and complete disregard of their rights; that the defendant sold and cut timber growing on said land, to wit, on lots 280, 281 and 297, each containing 160 acres, causing them permanent injury, and the defendant is not preserving and protecting said estate so as to protect the interests of the plaintiffs therein; that the timber and wood so cut is in excess of 180 thousand board feet of timber and the acts of the defendant tended to and did decrease the value of said lands and constituted lack of ordinary care for its protection; that the timber so cut and removed from the lands was of the reasonable value of $15 per thousand feet and the value of the lands on account of the cutting and removing of the timber was decreased in the amount of $2775, and that there was no need in the defendant encroaching upon the corpus as the income from the life estate was sufficient for her needs; that there was no need and necessity for the defendant to cut said timber and it was not used for repairs, improvements or for the use of the estate but was sold for money; that same was entirely appropriated by the defendant to the exclusion of the plaintiffs; and that said acts constituted waste on the part of the life tenant and for which she is liable to the plaintiffs.
The defendant answered and admitted the allegations of the petition as to the relationship of the parties and the various interests of the plaintiffs as remaindermen in the lands, and admitted that she had cut certain of the timber for which she received $300 but says that she used this sum in improving the lands. The defendant admitted that this cutting was without the consent of the plaintiffs. She denied that in excess of 185 thousand board feet had been cut from the land; that the cutting tended to decrease the value of the land and that this constituted a lack of ordinary care on her part in protecting the estate and that the value of the estate had been decreased in the amount of $2775, as alleged by the plaintiffs.
No demurrer was filed, and the case went to trial. The plaintiffs introduced evidence to support the allegations of their petition, but there was no evidence to show that the defendant had cut or sold to be cut any timber from land lots 280, 281 and 297. There was no evidence offered showing the value of the land before the cutting of the timber and the value thereof immediately after the cutting. There was evidence to the effect that the land had been decreased in value in the sum of $2775, in that the lands were unfit for any purpose other than the growing of timber and that the value of the timber cut was $2775.
On the conclusion of the evidence, the court granted on motion of the defendant, a nonsuit. To this judgment the plaintiffs excepted directly to this court.
The plaintiffs and each of them held remainder interests in the life estate being enjoyed by the defendant until her death and on which it is claimed she committed waste and failed to protect by illegally cutting the timber from certain portions thereof. The plaintiffs alleged that the defendant cut timber valued at $2775 from lots 280, 281, and 297. There was no proof to this effect. Where a plaintiff fails to prove the case as laid in the petition, the grant of a nonsuit is not error. Harris v. Paulk, 10 Ga. App. 334 ( 73 S.E. 430); Byas v. Hammond, 32 Ga. App. 18 ( 122 S.E. 708). The plaintiff must recover, if at all, upon the case laid in the petition. Napier v. Strong, 19 Ga. App. 401 ( 91 S.E. 579). See also Code § 110-310 as to nonsuits. An immaterial variance between the allegations and proof does not authorize a nonsuit. See Code § 81-116. However, the variance here was not of that nature.
Furthermore, there was no evidence as to the actual value of the lands before the timber was cut and as to the value thereof immediately after the timber was cut, showing a decrease in the value thereof caused by the cutting and removing of the timber by the life tenant, the original defendant. It was alleged that the land had been decreased in the sum of $2775 by the cutting and removing of this timber, and that the value of the land was decreased in the amount of the value of the timber wrongfully taken therefrom, and there was evidence to the effect that this land was not fit for any other purpose except the growing of timber and that its value had been decreased in the value of the timber so cut and removed. If a plaintiff proves the case laid in the petition, a nonsuit is not proper. The plaintiffs did not prove the reasonable market value of the timber which they claimed and alleged that the defendant had taken from the life estate property.
A witness for the plaintiffs testified that he cut timber from what he called the Johnson place and from lots 282 and 279. The witness, Dawson, testified that he thought he cut some timber on the Johnson place. There was no evidence that the timber cut and sold by the life tenant was on the lands referred to, lots 280, 281 and 297. In these circumstances, the plaintiffs did not prove the case as laid in the petition, and the nonsuit was not erroneously granted.
This is not the first appearance of this litigation before the appellate courts. In 1944, the plaintiffs brought suit against the deceased Mrs. Wright, and to the judgment overruling her general demurrer she excepted, and took the case to the Supreme Court, where the judgment was reversed. Wright v. Conner, 200 Ga. 413 ( 37 S.E.2d 353). Before the remittitur reached and was made the judgment of the trial court, the plaintiffs filed an amendment to their petition. The defendant renewed her general demurrer to the petition as amended, and the trial court sustained the same and dismissed the case. The case again went to the Supreme Court, where it was affirmed. Conner v. Wright, 201 Ga. 753 ( 41 S.E.2d 158). Thereafter, the plaintiffs filed another suit against Mrs. Wright, the same being a suit for damages for the cutting of this timber. A plea in bar was filed and this was demurred to. The defendant, Mrs. Wright, died and her executrix was made party defendant. The trial court overruled the demurrer to the plea in bar and judgment was rendered against the plaintiffs. This judgment was excepted to and the Court of Appeals reversed the lower court. Conner v. Bowdoin, 80 Ga. App. 807 ( 57 S.E.2d 344). In the case at bar the evidence failed to support the case made in the plaintiffs' petition, and it appearing that the plaintiffs failed to prove the value of the land before the timber was cut and its value immediately thereafter, and it not appearing that there was any timber cut from lots 280, 281 and 297, the trial court did not err in granting the nonsuit.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.