Opinion
34201.
DECIDED SEPTEMBER 18, 1952.
Damages; from Swainsboro City Court — Judge Powell. June 14, 1952.
Williams Smith, for plaintiff in error.
Grayson C. Powell, contra.
1. Where, as here, there is not sufficient evidence from which the damage done to growing timber can be estimated, the evidence not including any facts and circumstances from which the jury can gauge the value of the property before the damage and arrive at the loss, from facts showing the value after the loss, or at least the extent of the loss and its consequent effect upon the value, the verdict, which was for more than nominal damages, is not authorized by the evidence.
2. The excerpt from the charge complained of as follows: "Now, this is one of the peculiar cases at law of which is entirely within the province of the jury to settle," is not error requiring a new trial, as obviously the word "peculiar" in the sense used by the court meant "characteristic" or "belonging to a particular group."
3. The remaining assignments of error are either unlikely to recur on another trial or are but amplifications of the general grounds.
DECIDED SEPTEMBER 18, 1952.
Felder Black and his wife, Mrs. Carrie Black, filed suit in the City Court of Swainsboro against O. V. Watson and J. P. Morgan, seeking damages allegedly arising because of the negligence of the defendants to whom the plaintiffs had sold certain growing timber and given permission to erect a sawmill on their lands for the purpose of cutting the same, the acts of negligence alleged being that the defendants set up a sawmill and slab-pile fire not properly equipped with facilities to prevent the spread of fire over the plaintiffs' hundred acres of timber land; that they did not employ a proper lookout to avoid spreading the fire; that they were negligent in not subduing the sparks and fire; negligent in not warning petitioners that the fire from the slab pile was out in the timber; in not observing the physical facts and course of the wind to anticipate damage that could be done by fire to petitioners' property, and in not having proper spark arresters or other preventive measures for said slab-pile fire. The defendant Morgan answered, admitting that the timber deed originally made out to Watson had been transferred to him, and denying that he or his employees had been negligent in any particular or were responsible for any fire damage to the plaintiffs' property. Upon the trial of the case witnesses for the plaintiff testified that approximately a hundred acres of woodland had been burned over; that this land included the timber sold to the defendants, which was all pine and hardwood timber measuring 12 inches in diameter 12 inches from the ground; that the land was also well seeded with young pines from one to fifteen years old, all of which were killed, that the tract was well stocked with timber; that the predominate size of the timber was 10 inches. The plaintiff offered no evidence as to the value of these trees. There was evidence that the fire had started at the slab pile and had been carried by a high wind throughout the tract of land, and that over twenty persons, including the plaintiff and his neighbors, and the defendant and his employees, and later members of the State Forestry Service, had fought it until nightfall.
The defendant admitted that there had been live coals in the slab pile when he left the previous night, but offered evidence that there was no wind during the night and that on the arrival of the timber cutters at daybreak they had found the fire burning some distance from the sawmill, with an unburned strip between the fire and the slab pile. The defendant estimated the burned area at not over 33 acres, with only four acres containing slash pines badly damaged, testified that the entire damage was not over $200, and offered evidence that six years previously the plaintiff had sold off the slash pine from 144 acres of land which was at least partly included in the tract allegedly burned by the defendants.
The jury returned a verdict for the plaintiffs in the sum of $750. The defendant Morgan filed a motion for a new trial on the general grounds which was later amended by the addition of eight special grounds, and the overruling of this motion is assigned as error.
1. Special grounds 3 and 4 complain that the verdict is excessive, is not based on any evidence justifying the amount awarded and warranting the rendition of a verdict in this amount. Special ground 8 assigns error on the failure of the court to charge without request the law as to the measure of damages. These grounds are considered together.
Code § 105-2001 provides as follows: "Damages are given as compensation for the injury done, and generally this is the measure where the injury is of a character capable of being estimated in money. If the injury is small, or the mitigating circumstances are strong, nominal damages only are given." The measure of damages for injury to timber in a case of this kind is the difference in value immediately before and immediately after such injury, and a charge which substantially so informs the jury is sufficient. Tennessee, Alabama Ga. Ry. Co. v. Watts, 72 Ga. App. 377 ( 33 S.E.2d 736). However, "proof of a tortious invasion of one's property rights can not, unless supplemented by evidence disclosing the extent of the loss thereby inflicted upon the injured party, afford a basis for the recovery by him of more than nominal damages." Swift v. Broyles, 115 Ga. 885 (1) ( 42 S.E. 277, 58 L.R.A. 390). There must be sufficient evidence from which the damage can be estimated, and this must include some facts and circumstances from which the jury may arrive at a just amount of monetary compensation, whether by proof of the value of the property before the damage and facts showing the value after the loss, or at least the extent of the loss and its consequent effect upon the value. French Dry Cleaning Co. v. Clay, 34 Ga. App. 547 (1) ( 130 S.E. 372); Moss Co. v. Ga. R. Bkg. Co., 144 Ga. 173 ( 86 S.E. 550). Here there is no evidence whatever as to the value of the slash pine either before or after the fire, no evidence of the decrease in value of the property, and very confused and conflicting evidence as to the size and quantity of pines burned. The judge in his charge did not touch at all upon the measure of damages. It is error to fail to give the jury any rule by which damages may be calculated ( Central of Ga. Ry. Co. v. Hill, 21 Ga. App. 231 (4), 94 S.E. 50; Central of Ga. Ry. Co. v. Madden, 135 Ga. 205, 69 S.E. 165), especially in a case of this kind which does not fall into that class where the plaintiff, if entitled to recover at all, will recover a sum certain or easily ascertainable from the evidence as a whole. See Central of Ga. Ry. Co. v. Hughes, 127 Ga. 593 (3) ( 56 S.E. 770).
The evidence here as to damages is so weak and unsatisfactory that it would hardly sustain a verdict for the plaintiff in any amount of more than nominal damages, and the failure of the court to give the jury a rule for ascertaining the measure of damages was clearly error. Grounds 3, 4 and 8 of the amended motion for a new trial should have been sustained.
2. Special ground 6 complains of a sentence in the charge of the court as follows: "Now, this is one of the peculiar cases at law of which is entirely within the province of the jury to settle." The word "peculiar" in this sense, as meaning characteristic of or belonging to a particular group, is not improperly used and would in no event be more prejudicial to one party than to the other.
3. The charge complained of in ground 7, that the jury are the judges of both the law and the facts, is not applicable to civil cases. Vigal v. Castleberry, 67 Ga. 600. However, it is unnecessary to decide here whether or not this error was so harmful as to cause a reversal of the case, since on another trial it is unlikely to recur. See also Higgins v. Trentham, 186 Ga. 264 (3) ( 197 S.E. 862).
Special grounds 1, 2, 3, and 5 are but amplifications of the general grounds, and are not here passed upon as this case is to be tried again.
The trial court erred in overruling the motion for a new trial for the reasons set forth in division one of this opinion.
Judgment reversed. Gardner, P.J., and Carlisle, J., concur.