Opinion
34446.
DECIDED FEBRUARY 14, 1953. REHEARING DENIED MARCH 3, 1953.
Damages; from DeKalb Superior Court — Judge Guess. November 4, 1952.
Sidney Parks, for plaintiff in error.
J. Ralph McClelland Jr., James A. Venable, H. C. Morgan, contra.
The petition stated a cause of action; the evidence authorized the verdict, and no error of law having been made to appear in any of the special grounds of the motion for a new trial, the trial court did not err in overruling the defendant's general demurrer to the petition or his motion for a new trial.
DECIDED FEBRUARY 14, 1953 — REHEARING DENIED MARCH 3, 1953.
Mrs. Virginia H. Griffin brought an action for damages against Nathan A. Kolodkin and W. T. Swinks Jr. The material allegations of the petition are substantially as follows: (2) The defendants have jointly and severally injured the plaintiff in the sum of $3441.50 by reason of the following facts. (3) The plaintiff is the owner of a certain described tract of land in Fulton County. (4) On or about January 2, 1948, the defendant Kolodkin was the owner of the property adjoining the plaintiff's property on the south. (5) Prior to January 2, 1948, the defendants entered into a joint venture and enterprise in connection with the construction of the house and the improvement of the premises immediately south of the plaintiff's premises. (6) Under the terms and provisions of such joint undertaking, the defendant Kolodkin employed the defendant Swinks, who was engaged in the building and construction business, to erect on the property adjacent to the plaintiff's property. a six-room brick-veneer dwelling and to landscape and improve the premises for residential purposes. (7) Under the terms and provisions of the contract of employment, the defendant Kolodkin was to furnish the land and finance the construction work and the improvement of the property, while the defendant Swinks was to build the house and improve the property, and as compensation for his services was to receive a share in the profits realized from the sale of the house and premises. (8) Prior to the commencement of construction by Swinks, the plaintiff's property was elevated a distance of from ten to fifteen feet above the property belonging to the defendant Kolodkin, and the terrain along the south line of the plaintiff's property for the entire depth of one hundred and fifty feet was a gradual, regular slope and of even contour from north to south toward the defendant Kolodkin's property. (9) At about the time the construction of the house was begun by the defendants, the plaintiff received from the defendant Kolodkin notice that, in order to construct the house properly, it was going to be necessary that certain grading work be done up to and along the plaintiff's south property line for a distance of approximately seventy-five to eighty feet. (10) Pursuant to that notice, the plaintiff agreed with the defendant Kolodkin upon the construction and erection of a granite block wall to provide lateral support and protection for the plaintiff's land. The wall was built along the south line of the plaintiff's property for a distance of approximately seventy-five to eighty feet from east to west, a distance which was more than sufficient to permit the construction of the house on the Kolodkin property. The plaintiff and the defendant Kolodkin jointly bore the expenses of the retaining wall. (11) The land along the remaining portion of the south boundary of the plaintiff's property, from the terminating point of the retaining wall to the rear property line, was left in its natural state, that is, in a gradual, regular slope, and even contour. (12) On or about January 2, 1948, when the construction of the house was substantially complete, the defendant Swinks, acting within the scope of his contract of employment with the defendant Kolodkin, and with his full knowledge and consent, and without giving the plaintiff any notice whatsoever, wilfully, wantonly, and recklessly, and with a conscious and intentional disregard for the rights and interest of the plaintiff, caused heavy grading equipment to be brought on the defendant Kolodkin's property and caused the soil along the entire remaining portion of the plaintiff's south boundary line, where no retaining wall had been constructed, to be dug, excavated, graded, and removed and dug away and caused to be removed soil on the plaintiff's property for distances varying from six inches to three feet. (13) This digging, grading, and excavating of the soil on the defendant's property and upon the plaintiff's property was done in such a manner as to cause the formation on the plaintiff's south boundary of a steep, abrupt, even, perpendicular, and open embankment from ten to twelve feet high for a distance of from seventy-five to eighty feet along the south boundary of the plaintiff's property. (14) Those acts on the part of the defendants have resulted in the undermining of the soil on the plaintiff's property, causing the soil to crack, subside, cave in, wash, and fall into the excavation on the defendant's property to such an extent that serious and substantial displacement, diminution, and deterioration of the soil on the plaintiff's property has occurred. (15) The plaintiff was and is entitled to the lateral support of the soil of the adjoining land which it furnished her land in its natural state; but, as a result of the actions of the defendants, the plaintiff's land has been deprived of its lateral support and it cannot stand by its own coherence. (16) Since the date of the injury and damage complained of up to the date of the suit, it has been necessary for the plaintiff to incur expenses of $941.50 as a direct and proximate result of the acts of the defendant in an effort to minimize the damage to her property. The said amount has been spent in filling and resodding the cracks, crevices, gullies, and depressions caused by the displacement and deterioration of the original soil on the plaintiff's property, and in constructing a wall or fence along and adjacent to this portion of the plaintiff's property to protect the soil and prevent its further displacement and deterioration. (17) Even though the defendants failed to give the plaintiff the required notice of their intention to do the digging, grading, and excavating, insofar as it was done on the land adjoining that of the plaintiff the defendants were negligent in the following particulars: (a) In digging, grading, and excavating the land so as to eliminate altogether the gradual, regular slope and even contour which had existed. (b) In digging, excavating, and removing the soil in such a way as to form a perpendicular, abrupt, steep, open embankment. (c) In digging up to and over the plaintiff's property line in such a manner as to cause the soil on the plaintiff's land to be undermined and unable to stand by its own coherence. (d) In failing to grade the land so as to maintain the gradual, regular slope and even contour which had existed in the natural state of the land. (e) In performing the work so as to injure and damage the plaintiff as herein set out. (18) None of the digging, grading, excavating, or removing of the soil was necessary for purposes of construction. (19) The digging, grading, excavating, and removing of the soil on the plaintiff's property constitutes an act of trespass on the part of the defendants. (20) The reasonable market value of the plaintiff's property immediately after being so damaged by the defendants is $1500 less than it was immediately before such damage. (21) By reason of the wilful, wanton, reckless, and intentional conduct of the defendants, the plaintiff is entitled to recover $1000 as punitive and exemplary damages to deter the defendants from further acts of a similar nature. (22) All of the damages sustained by the plaintiff are the direct and proximate result of the negligence on the part of the defendants and their wilful, wanton, and reckless misconduct as hereinbefore alleged.
The defendant Kolodkin's general demurrer was overruled, and he excepted pendente lite and assigns error thereon in the final bill of exceptions.
Upon the trial of the case, the jury returned a verdict for the plaintiff and against the defendant Kolodkin in the sum of $1750. His motion for a new trial, based upon the usual general grounds and seven special grounds, was overruled, and he excepted to this court, naming the plaintiff and the defendant Swinks as defendants in error.
1. The relationship alleged to exist between the defendants, Kolodkin and Swinks, is that of employer and employee, and the special facts alleged do not affirmatively disclose the contrary, or show, as contended by the defendant Kolodkin, that the relationship was that of landowner and independent contractor. The damage alleged to have been caused by the employee Swinks, in excavating the soil on Kolodkin's land, thereby depriving the plaintiff's land of the lateral support owed by Kolodkin's land to that of the plaintiff's land, and in trespassing on the plaintiff's land by removing soil therefrom, is alleged to have been done by Swinks within the scope of his employment with Kolodkin and with Kolodkin's full knowledge and consent; and it is alleged that the excavating was done without any notice whatever to the plaintiff. The excavating of Kolodkin's land by Swinks is alleged to have been done with a wilful, wanton, reckless, conscious, and intentional disregard for the rights and interest of the plaintiff, and his actions caused the enumerated damages to the plaintiff's land for which suit is brought. Under the provisions of Code § 85-1203, before making any excavations at all, the defendant Kolodkin, or his employee Swinks, should have given the plaintiff notice of his intention to do so; and even after the notice (had it been given), it was incumbent on the defendant Kolodkin and his employee Swinks to use ordinary care in the prosecution of the work and to take reasonable precautions to prevent damage to the plaintiff's land. Bass v. West, 110 Ga. 698, 701 ( 36 S.E. 244); Massell Realty Improvement Co. v. MacMillan Co., 168 Ga. 164 ( 147 S.E. 38). The petition stated a cause of action against the defendant Kolodkin for the damage caused by his employee Swinks, within the scope of his employment and with the knowledge and consent of the defendant Kolodkin, and the trial court did not err in overruling Kolodkin's general demurrer to the petition.
2. The jury was authorized to find from the evidence adduced upon the trial: that the damage to the plaintiff's property was the direct and proximate result of the excavating and grading performed on Kolodkin's adjoining property; that Kolodkin employed R. H. Mabry to do the excavating and grading; that Kolodkin failed to give the plaintiff notice of his intention to excavate and grade his property; that neither the plaintiff nor her husband-agent was present during the operation, but that Kolodkin was present and observed the manner in which the work was performed by Mabry's bulldozer operator; that the excavating on the Kolodkin property left a vertical embankment on the plaintiff's property of from ten to twelve feet in height without lateral support; that the plaintiff, through her husband-agent, made complaint to Kolodkin of the condition in which her property had been left by the excavating, and that Kolodkin assured her that this condition would be remedied, but that, after several appeals to him to remedy the condition, Kolodkin refused to do so, and the embankment of the plaintiff's property, having been deprived of its lateral support, began to wash out and slough off and the soil to be carried away. And the jury was further authorized to find that the defendant Swinks was in no way connected with the excavating operation on the Kolodkin property which caused the plaintiff's damage. There was evidence of the value of the plaintiff's property, both before and after the excavating on the Kolodkin property, and evidence of the expense to which the plaintiff had been put in attempting to mitigate her damage. The evidence, therefore, authorized the verdict against Kolodkin alone, and the damage assessed was within the range of the damage shown to have been sustained by the plaintiff.
3. In special grounds 1 and 2 of the motion for new trial, error is assigned upon portions of the charge to the jury, in which the court instructed that the relationship existing between the defendants Kolodkin and Swinks was that of employer and employee, when the evidence showed and the defendant Kolodkin contended that his relationship with Swinks was that of landowner and independent contractor. Even if we assume, for the sake of argument, that these instructions are erroneous, the defendant Kolodkin was not harmed thereby, for, in view of the verdict returned against Kolodkin alone, the jury did not believe that such a relationship existed between Kolodkin and Swinks insofar as the excavating of the rear of the Kolodkin lot was concerned. Had the jury believed that Swinks, as the employee of Kolodkin, had caused the excavating and grading to be done which caused the plaintiff's damage, Kolodkin's responsibility would rest entirely upon the doctrine of respondeat superior, and in a suit against the "employer" and the "employee" brought upon the theory of such doctrine, the employee may not be found guiltless and the employer held responsible. Southern Ry. Co. v. Davenport, 39 Ga. App. 645 (2) ( 148 S.E. 171), and citations. In view of the verdict and the charge of the court as a whole, the instructions complained of were harmless and do not warrant the grant of a new trial.
4. In special ground 3, error is assigned upon the following excerpt from the charge: "I charge you that it is the plaintiff's contention in this case, as raised by the pleadings and by the evidence, that the acts of the defendants in grading and displacing the soil on the adjoining property and in trespassing on her property by grading and excavating the boundary line was done wilfully, wantonly, and with reckless and conscious disregard for the rights and interest of the plaintiff, such as to entitle her to punitive or exemplary damages in addition to the actual damages which are alleged to have been sustained." The objection to this excerpt from the charge is that it was unwarranted and unsupported by the evidence, as there was no evidence that the defendant Kolodkin graded or displaced soil beyond his boundary line; and that there was no evidence that any of the alleged acts were done wilfully, wantonly, and with a reckless and conscious disregard for the rights and interest of the plaintiff. The plaintiff's husband testified that soil had been removed, by the grading and excavating, to a distance of two feet on the plaintiff's side of the boundary line between the two lots. That the grading and excavating was done recklessly and with indifference to the rights of the plaintiff, is clearly inferable from the facts and circumstances of the case. No notice was given the plaintiff of an intention to displace the soil, even though there had been discussions between the parties wherein it was understood by the plaintiff that the land would be left in more or less its natural sloping contour. The grading and excavating was done in the presence of the defendant Kolodkin, who had employed Mabry to perform the work. Kolodkin gave no instructions to the operator of the bulldozer as to the manner in which the work was to be performed. The charge was clearly authorized.
5. It is always exclusively a question for the jury when the additional damages provided for in Code § 105-2002 shall be allowed ( Batson v. Higginbothem, 7 Ga. App. 885, 839, 68 S.E. 455); and since, as indicated in the foregoing division of this opinion, the jury was authorized to find that there were aggravating circumstances attending the excavating and grading which caused the plaintiff's damage, the court did not err in charging the provisions of § 105-2002. Special ground 4 is without merit.
6. In special ground 5, error is assigned upon the following excerpt from the charge: "I charge you further that the malice required for the recovery of exemplary damages need not amount to ill-will, hatred or vindictiveness of purpose, but I charge you that it would be sufficient upon which to base a finding in favor of the plaintiff for punitive damages in this case, if you find that the acts on the part of the defendants, or either of them, were wanton or with a conscious, reckless, or intentional disregard for the rights of the plaintiff in the free use and enjoyment of her land, in its natural state; as such a reckless, conscious, or intentional disregard is equivalent to legal malice justifying punitive damages. If you should find that the plaintiff in this case is entitled to punitive damages, you would be authorized to award such amount of punitive damages which, in your discretion, the plaintiff is entitled to recover, and you would in that event award such damages which you find the plaintiff is entitled to recover, if any. The law does not set any standard by which this item of damages can be measured, gentlemen, except the enlightened consciences of impartial jurors. You would look to the evidence and see whether or not you believe the plaintiff is entitled to recover upon this item, and if you believe she is, then you would award such sum as would meet the approval of your enlightened consciences." This was a full and correct statement of the law upon the subject of legal malice as related to punitive damages ( Investment Securities Corp. v. Cole, 57 Ga. App. 97, 102, 194 S.E. 411); and the charge was authorized by the evidence, as we have already indicated in division 4 of the opinion.
7. The measure of damages in cases of the nature here under consideration is the difference in the value of the property before and after the alleged tort, and the charge complained of in special ground 6 clearly instructed the jury to be guided by this measure in determining the amount of the damages sustained by the plaintiff. There was evidence of these respective values, and also evidence of the expense to which the plaintiff had been put in an effort to mitigate her damages. The court did not err in charging the jury: "I further charge you that the measure of damages in such case, if you believe that the plaintiff is entitled to recover, would be to look to all the evidence and determine what the value of the plaintiff's property was immediately before the alleged grading, and then look to the value of the property immediately after the alleged grading, and the difference between the amount you found the property worth before and the property worth afterwards would be the amount that the plaintiff would be entitled to recover in this item, if the jury believes that the plaintiff is entitled to recover."
8. Special ground 7 is but a reiteration of the complaint that punitive damages were unauthorized and that the court should not have charged thereon, and a reiteration of the complaint that the charge on the measure of damages, the difference in the value of the property before and after the alleged tort, was unauthorized. These contentions have been disposed of earlier in the opinion and are without merit.
The trial court did not err in overruling the defendant's general demurrer to the petition, or in denying the motion for a new trial.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.