Opinion
32683.
DECIDED FEBRUARY 28, 1950.
Damages; from Monroe Superior Court — Judge Willingham. June 24, 1949.
Williams Freeman, for plaintiff in error.
W. B. Mitchell, contra.
1. In the provision in a timber-lease contract that in going upon the lands of the grantor with his men, teams and wagons and other vehicles no damage should be done by the grantee to "growing crops or fences" without just compensation therefor being paid, the word "crops" means and embraces the fruits and products of all plants, trees and shrubs, but not the plants, trees and shrubs themselves. Accordingly, the original petition which sought to recover damages as for a breach of contract, because of the alleged burning of the plaintiff's "growing crops" of young timber without just compensation therefor being paid, as required under the aforementioned provision of the contract, did not set forth a valid cause of action for breach of contract.
2. The amendment striking the word "crops" wherever it appeared in the petition and also the quoted provision of the contract, and seeking to recover damages for the alleged negligent burning of the plaintiff's growing timber, attempted to convert the asserted cause of action for breach of contract into an action for a tort, which can not be done. The court erred in allowing the amendment over objection, and all proceedings thereafter were nugatory.
DECIDED FEBRUARY 28, 1950.
Alfred F. Bunn brought suit against Ingram LeGrand Lumber Company Inc., in the Superior Court of Monroe County, Georgia, the petition alleging: The defendant has damaged the plaintiff in the sum of $4500 or other large sum by reason of the facts hereinafter alleged. The plaintiff is the owner of described lands in Cox District, Monroe County, Georgia, being 409 acres, more or less. On October 5, 1942, the plaintiff sold the timber on the said lands, along with other timber, to the defendant under a contract or timber lease, a copy of which was attached to the petition as Exhibit "A" and made a part thereof. On 300 acres of the above-mentioned land there was a growing crop of young timber. Under the said timber lease the defendant employed J. S. Tribble, his agents, servants and employees, to enter upon the lands and, in conformity with the terms of the said contract, to cut and remove the trees from the lands and saw and convert the same into lumber. They did enter upon the lands and did cut considerable trees into lumber and stacked the same upon the lands of the plaintiff for the purpose of drying it. After three sawmill sites had been stacked, the aforementioned workmen were sawing lumber at one sawmill site and were burning the slabs in a slab pit at a distance of approximately 40 feet from the sawmill. The burning of slabs in an open pit in woods that have a growth of small timber and tree laps from trees cut for sawmill purposes, together with the litter and small strips from the sawmill, is work that in its nature is dangerous to others, however carefully performed, and the defendant, from its previous knowledge and experience as a sawmill operator, knew that the said burning of slabs in the said manner would be dangerous and at any time liable to set the woods of others on fire. On April 4, 1946, the slabs burning in an open pit did set the sawmill of J. S. Tribble on fire and did set the woods and timber of the plaintiff on fire, burning over the said tract of land. After the said sawmill caught on fire the defendant's servants, agents and workmen went to two other sawmill sites, in addition to the one where they were working at the time, and started a "back fire" into the woods of the plaintiff and burned over the whole 300 acres of growing crop of timber belonging to him, in violation of the duty imposed by the express contract between the petitioner and the defendant not to damage growing crops of the petitioner without just compensation being paid therefor. The plaintiff has demanded of the defendant compensation for destroying the said growing crop of timber, and the defendant fails and refuses to pay the said damages. The value of the 300 acres of land was $20 per acre, but since the timber has been burned over is worth only $5 per acre, and the crop of growing timber of the value of $4500 has been destroyed, killed and damaged in the said amount and the plaintiff has suffered a loss in the said amount because of the aforementioned negligent acts of the defendant, its servants, agents and workmen. Judgment was prayed for $4500.
The defendant filed an answer denying the material allegations of the petition as to liability, and asserting that it had not employed anyone to cut the timber, and that it was cut, and that all the operations were by an independent contractor.
When the case came on for trial the defendant made a motion to dismiss the petition on the ground that it showed on its face that no cause of action was set forth. The court overruled the motion.
The plaintiff tendered an amendment striking the words "crop" and "crop of" wherever they appeared in the petition so that reference would be made to growing timber rather than to crops of growing timber, and also striking the words "in violation of the duty imposed by the express contract between the petitioner and the defendant not to damage growing crops of the petitioner without just compensation being paid therefor." The defendant objected to the allowance of the amendment on the ground that its effect was to convert an action for breach of contract into an action for tort. The court overruled the objection and allowed the amendment.
At the conclusion of the evidence for the plaintiff, the defendant filed a motion for nonsuit. The court overruled the motion.
The defendant filed exceptions pendente lite to all the intermediate rulings above mentioned. The jury returned a verdict for the plaintiff after the introduction of evidence by the defendant. The defendant filed a motion for new trial on the usual general grounds, and by amendment added several special grounds. The motion was overruled, and the exceptions here are to this judgment and to the rulings complained of in the exceptions pendente lite.
1. The contract attached to and made a part of the petition contained the following provision: "The right to go upon said lands with men, teams, wagons and other vehicles for the purpose of cutting, logging and sawing the timber and to remove therefrom the lumber sawed and all other sawmill privileges usually given and not hereinbefore mentioned, provided that no damage shall be done to growing crops or fences upon the lands in the exercise of the aforesaid rights and privileges, without just compensation therefor." (Italics ours.) Obviously the plaintiff misconceived the meaning of the words "growing crops." He evidently relied upon the words to include crops of growing timber, and in furtherance of his supposed cause of action proceeded to allege that his crops of growing timber had been damaged by the defendant through his servants, agents and employees, and that the defendant had violated the contract by not making just compensation therefor. It will be observed however, that the words "growing crops" are used in a sentence which indicates an intention to vest in the grantee in the timberlease contract the right to go upon the lands for the purpose of cutting the timber, and to place upon the grantee an obligation not to damage the crops or fences upon the lands without just compensation being paid. Clearly such a provision in a timber lease has for its object the protection of less robust "crops" than timber, and properly construed has reference to the fruits of vines, bushes or trees. The context does not extend but rather limits the meaning of the word "crops" and excludes trees, plants and shrubs. As was said in Adcock v. Berry, 194 Ga. 243 (2-b) ( 21 S.E.2d 605), "The word "crops" includes and embraces the fruits and products of all plants, trees and shrubs.' Code, § 85-1902; Ga. L. 1933, p. 128. Properly construed, this law as codified from the act of 1933 does not affect the `plants, trees, and shrubs' themselves, but applies only to fruit and products in the nature of fruit derived from such plants, trees and shrubs." It is manifest that the defendant is not shown to have damaged any such "crops" as were contemplated under the timber-lease contract, and since the original petition was undoubtedly brought to obtain damages for breach of contract no cause of action was set forth. The court erred in overruling the motion to dismiss.
2. Thereafter the plaintiff apparently reached the conclusion that he was not justified in denominating his growing timber as crops, and insisting that the clause he invoked was applicable to such timber. Accordingly, he struck the word "crops" wherever it appeared in the petition, and consistently struck by amendment the quoted contract provision. He thus affirmatively put behind him any idea of recovery for breach of contract and undertook to proceed as for a tort. This can not be done. "An action based upon a claim ex contractu can not by amendment be converted into an action ex delicto." Hartley v. Folds, 24 Ga. App. 456 (3) ( 101 S.E. 130); Watson v. Atlanta Gas Light Co., 46 Ga. App. 326 ( 167 S.E. 718). See also Glover-White Mercantile Co. v. Ausburn, 25 Ga. App. 780 ( 104 S.E. 927). The court erred in allowing the amendment over the objection that it sought to convert the original action into a tort action for damage to timber, and all proceedings thereafter were nugatory.
Judgment reversed. Gardner and Townsend, JJ., concur.