Opinion
36607.
DECIDED APRIL 15, 1957.
Tort; property damaged by fire. Before Judge Waldroup. Douglas City Court. January 5, 1957.
Blount Gibson, for plaintiff in error.
Ewing Williams, contra.
1. The jury were authorized under the evidence to render a verdict in favor of the plaintiff.
2. Declarations forming part of the res gestae must transpire within the time of the transaction involved, without the benefit of afterthought. Part of the res gestae may be found simultaneously with, some anterior and others posterior to the principal fact. It is within the discretion of the judge to determine the admission of declarations as such relate to the principal fact.
DECIDED APRIL 15, 1957.
E. L. McAllum brought an action in the City Court of Douglas for damages against Southern Gas Company, Inc. The pleadings will be shown hereinafter as they developed in the trial court. The suit resulted in a verdict and judgment against the defendant. A motion for a new trial was filed on the statutory grounds, and later amended by adding two special grounds. The court denied the motion and it is on this judgment, as well as the judgment denying the motion for judgment notwithstanding the verdict, that the case is here for review.
The amended petition, omitting the formal parts, alleged in paragraph 2 that Byrd Blair was the agent of the defendant. Paragraph 3 alleges that the plaintiff was damaged by the defendant in the sum of $2,310 and attached a bill of particulars by exhibit. Paragraph 4 alleges that in the process of harvesting his tobacco crop the curing had progressed to the stage of killing or curing the stems of the tobacco, the plaintiff found that the Gastobac curers previously purchased from the defendant and installed in the tobacco barn would not provide more than 160 degrees heat, which was insufficient to kill or cure out the tobacco stems. Paragraph 5 alleges that when the plaintiff determined that the gas curing system would not work properly, he called the defendant's office in Douglas, Georgia, and requested that a service man be sent to fix the curing system. Paragraph 6 alleges that in about six and one-half hours, Byrd Blair and J. W. Taylor, agents, servants and employees of the defendant, went to the tobacco barn, turned off the burners of the curing system, proceeded to tighten and adjust and otherwise work on it in a negligent manner, then negligently re-lighted the said curing system, and, in doing so, ignited the tobacco in the barn, which caused the barn to burn 1,000 sticks of tobacco and 12 Gastobac curing burners and 200 tobacco sticks, and one Hudson crop duster and one hand-type transplanter in the shed of the barn; that as a result of the burning of the barn, the tobacco in the field near the barn was damaged and destroyed to the loss of $200, also set out by exhibit; that the defendant, his agents, servants and employees were negligent in causing said property to burn in that:
"(a) Because defendant's said agents, servants and employees, went to plaintiff's said tobacco barn with the knowledge that said tobacco curers were not working properly, and after extinguishing the fire therein, re-lighted said burners without the same being properly adjusted, thereby causing said damage. (b) Defendant's said agents, servants and employees did not properly adjust said burners before re-lighting them. (c) Defendant's said agents, servants and employees re-lighted said burners in said barn filled with dry tobacco leaves without first properly adjusting said burners."
Paragraph 8 alleges that said agents, servants and employees knew, or by the exercise of ordinary care and diligence could and should have known that the said fire loss would result from said negligent acts. Paragraph 9 alleges that the burning of said property and resulting loss and damage to the plaintiff were the direct and proximate result of the said acts of negligence of the defendant's agents, servants and employees.
The plaintiff prayed for recovery in the amount of $2,310.
The defendant demurred generally to the petition as amended, and demurred specially as follows: In paragraph 2 of the demurrer to the allegations of paragraph 6 of the petition as being too vague, indefinite, and uncertain to put the defendant on notice of what it is called upon to answer for the following reasons: "(a) It is not alleged what portion or part of said burners of said curing system were tightened. (b) It is not alleged in what manner, or with what result, or for what purpose, or how, or to what extent the burners of said curing system were adjusted. (c) It is not alleged what other work, if any, was done on the burners of said curing system. (d) It is not alleged how, or by what method, or by what means defendant's agents, in the course of re-lighting said curing system, ignited the tobacco."
Paragraph 3 demurs specially to paragraph 6 and to the bill of particulars attached as an exhibit, and insofar as it is alleged as an item of damages, the sum of $38 spent in harvesting the tobacco which was burned, for the reason that the plaintiff had already claimed as a separate item of damages the full value of the tobacco destroyed which was included in previous expense, and to recover the $38 would amount to a double recovery for the plaintiff.
Paragraph 4 demurs specially to subparagraph (a) of paragraph 7 of the petition wherein it is alleged: "The defendant's said agents . . . re-lighted said burners without the same being properly adjusted, thereby causing said damage" for the reason that the allegation without the same being properly adjusted is a conclusion of the pleader unsupported by properly pleaded facts in the petition, and for the further reason that the same is vague and indefinite in that it fails to show why or in what manner such burners were not properly adjusted or in what respect their adjustment was improper; and for the further reason that the allegation thereby causing said damage is a conclusion of the pleader, unsupported by any properly pleaded facts in the petition.
Paragraph 5 demurs specially to subparagraph (b) of paragraph 7 of the petition "wherein it is alleged that defendant's said agents . . . did not properly adjust said burners before re-lighting them for the reason that said allegation is vague and indefinite in that it does not show how or in what manner said burners were not properly adjusted or in what respect their adjustment was improper; and for the further reason that the same is a conclusion of the pleader, unsupported by any properly pleaded facts in the petition."
Paragraph 6 demurs specially to subparagraph (c) of paragraph 7 of the petition "wherein it is alleged that defendant's said agents . . . re-lighted said burners . . . for the reason that the same is vague and indefinite in that it fails to show how or in what manner such burners were not properly adjusted or in what respect their adjustment was improper; and for the further reason that the same is a conclusion of the pleader, unsupported by properly pleaded facts in the petition."
Paragraph 7 demurs further to paragraph 7 of the petition "wherein it is alleged that defendant's said agents, servants and employees were negligent in causing said property to burn for the reason that the same is a conclusion of the pleader, unsupported by any properly pleaded facts in the petition and for the further reason that the same is vague and indefinite in that it fails to show specifically how or in what manner the defendant or his agents, servants, or employees were negligent, and how or in what manner such negligence, if any, was causally related to plaintiff's loss."
Paragraph 8 demurs specially to paragraph 7 of the petition "as a whole for the reason that subparagraphs (a), (b) and (c) are repetitious and that there is no material difference between the substantial allegations of each of said subparagraphs; the defendant further shows that the plaintiff should be required to strike two of the three subparagraphs."
Paragraph 9 demurs specially to paragraph 8 of the petition "for the reason that the same is a conclusion of the pleader, unsupported by any properly pleaded facts in the petition in that said petition fails to show any specific acts of the defendant's agents, servants or employees which would support an inference of negligence or any facts which would support an inference of knowledge, actual or constructive, that any fire loss would probably result therefrom."
Paragraph 10 demurs specially to paragraph 9 of the petition "for the reason that the same is a conclusion of the pleader, unsupported by any properly pleaded facts in the petition in that there is no allegation in the petition showing any causal relationship between any act of the defendant, his agents, servants or employees and the loss sustained by the plaintiff."
Paragraph 11 demurs specially to paragraph 6 of the petition as amended, insofar as it alleges ". . . `and proceeded to tighten, adjust and otherwise work on same, in a negligent manner, the minute details of said negligent acts are not now known to plaintiff, but said negligent acts are well known to defendant,' in that the underlined portion of the quoted excerpt is too vague, indefinite, and uncertain to put defendant on notice of what it is called upon to answer, because nowhere in said paragraph nor in said petition is it alleged in what manner or by what reason the acts of `tightening, adjusting and otherwise working on the same' was done in a manner in any way negligent; and for the further reason that the allegation `in a negligent manner' is a conclusion of the pleader, wholly unsupported by any properly pleaded allegation in the paragraph or petition."
Paragraph 12 demurs specially to paragraph 6 of the petition "as amended, insofar as it alleged `. . . then negligently relighted said curing system' in that such allegation is vague, indefinite, and uncertain, for the reason that there is no fact alleged in the paragraph or petition showing in any way how or why the act, per se, of re-lighting the curing system, or the particular method in which the curing system was re-lighted, was in any respect negligent; and for the further reason that such quoted allegation is a conclusion of the pleader, wholly unsupported by any properly pleaded allegation in the paragraph or petition."
The defendant answered, admitting the allegations of paragraphs 1 and 2 of the petition, denying paragraphs 3, 6, 7, 8, and 9, and neither admitting nor denying paragraphs 4 and 5, alleging want of sufficient information.
The court overruled all the demurrers both general and special.
The jury returned a verdict of $2,310.00 against the defendant. The motion for judgment notwithstanding the verdict was based on insufficiency of evidence, the verdict being against the weight of the evidence, and the verdict being contrary to law and the principles of justice and equity.
The plaintiff testified: that he lost his tobacco barn on July 10, 1955; that the barn was heated by 12 gas curers called Gastobac, sold and installed by the defendant; that on the date of the fire he couldn't get the heat over 100° F.; that it was necessary for the heat to go higher for the tobacco stems to cure; that he called the defendant; that the defendant sent service men Taylor and Blair to adjust the burners; that while Taylor, the agent of the defendant, was on the premises servicing the burners the barn caught fire; that "Mr. Taylor said he had been working on the burners and he had set the pressure up, he guessed, was probably what set it (the barn) afire." The witness testified as to the amount of damage; that the heating system was normal; that the spaces from the tobacco to the burners were normal; that the Gastobac had been working properly prior to the date in question; that tobacco leaves sometimes fell on the grillwork which grillwork protected the Gastobac and no burning of the barn occurred. On cross-examination the same witness testified that he was at the house, about 300 yards away from the barn, while Mr. Taylor and Mr. Blair were adjusting the burners; that after the barn started burning, Taylor, the agent of the defendant, told him as shown hereinabove regarding the cause of the fire.
The son of the plaintiff testified: that when Mr. Taylor arrived on the premises he went into the barn and Mr. Blair went out to the gas tank; that Mr. Taylor put out the pilot light, put a pressure gauge on one of the burners; that Mr. Blair made some adjustments at the tank at Mr. Taylor's instructions; that the agents re-lighted the burners; that the agents started to the truck when Mr. Taylor announced that he had left his pressure gauge in the barn and he went back to get it, opened the barn door, got the gauge and returned to the truck; that a cousin and the brother of the witness jumped on the truck and went to the house in the truck; that between the barn and the house the brother of the witness saw the fire and notified Mr. Taylor and that they all returned to the barn immediately; that no one tampered with, worked on or touched the gas system except the agents of the defendant; on cross-examination he testified that he and Mr. Blair stayed around the barn about two hours.
Mr. Blair, witness for the defense, testified that he did not make any adjustment on the gas curing system. Otherwise his testimony was practically the same as that of Mr. Taylor.
1. The evidence is sufficient to sustain the verdict as to the general grounds.
2. Special ground 1 assigns error because it is contended that the court erred in admitting into evidence, over objections, certain testimony offered by the plaintiff, the plaintiff himself testifying on cross-examination as follows: "In order to make this ground complete and understandable within itself, movant shows that E. L. McAllum testified, in substance, as follows: That the service man (Taylor) arrived around three o'clock; that the barn began to burn around four o'clock; that his conversation with Mr. Taylor was at around four-thirty; that this conversation took place at his (McAllum's) house; that his (McAllum's) house was located about 300 yards from the barn; that, at the time of such conversation, the barn was still burning, but that everybody had given up; that there wasn't anything that could be done for the burning, and there was nothing could be done to save the barn. In this connection, movant further shows that Ted McAllum testified, in substance, as follows: That the service men (Taylor and Blair) arrived around two o'clock; that they did certain enumerated work on the system; that they started to leave and, as they left, the barn was discovered to be on fire; that the barn caught fire around 2:30 o'clock; that they returned to the barn and removed a plow and a few sticks of tobacco from under the barn; that they then came up to E. L. McAllum's house. In this connection, movant further shows that J. W. Taylor testified, in substance, as follows: That he, along with Blair, came to the barn in response to a call; that he checked the pressure on the system, that thereafter he made several trips back into the barn to see if the temperature was climbing; that about 45 minutes after his last trip into the barn, they were leaving when the barn was discovered to be on fire; that they returned and saved some sticks from under the barn; that they were there about two hours. In this connection, movant further shows that Byrd Blair testified, in substance, as follows: `That they (he and Taylor) were at the barn an hour and a half or two hours.'"
It is contended that it was erroneous for the court to deny the motion to exclude the testimony and thus to allow the same to remain before the jury. The motion contends further: "Movant avers that the inadmissibility of such evidence was beyond doubt; that such evidence was hearsay and not within any exception to the hearsay rule; and that such evidence was material, prejudicial, and hurtful to movant for the reason that the alleged statement related directly to the matters in issue (that is to say, the acts of defendant's agent, the cause of the fire, and the causal relation, if any, between such acts and such cause), and such statement was such that it might have been construed by the jury as an admission by Taylor that he was negligent and that such negligence caused the fire. Wherefore, movant avers that said testimony illegally remained before the jury, tended to prejudice the minds of the jury against movant and was therefore highly prejudicial to movant's cause in said trial, and that a new trial should therefore be granted."
Special ground 2 assigns error because it is contended that the court erred in admitting into evidence, over objections, certain testimony of the plaintiff himself as follows: ". . . he guessed, was probably what set it afire." The motion to exclude the testimony was denied and the testimony allowed in evidence. The defendant contends that this evidence was a conclusion on the part of the plaintiff, with nothing upon which to base it; that the evidence was prejudicial and hurtful to the defendant for the reason that it allowed the jury to consider an alleged opinion or conclusion expressed extra-judicially without disclosing the basis of facts, and the opinion or conclusion might have been construed by the jury as an admission that the defendant's agents had caused the fire, which was the basis of the suit; and further that the testimony tended to prejudice the minds of the jury against the defendant, and was highly prejudicial to the defendant's cause.
Counsel for the defense argue extensively as to the admissibility of the alleged declarations of the agent Taylor. Both special grounds go to this point, so we will treat the two grounds together. The plaintiff repeated the conversation had with the agent Taylor. The agent Taylor had qualified himself as an expert and stated: "I am service and installation man, and have been doing that work going on three years . . . I don't mean to say that I know more about curing tobacco than Mr. McAllum does, but the training they give us, we know more about the burners than he do, because that is what they trained us for. . . Those who taught me know more about the burners than he does. I would be capable of working on the burners." While the agent was still on the premises, after having arrived at the tobacco barn to service the burners, the declarations were made to the plaintiff. We now consider their admissibility. Counsel for the defense cites Griffin v. Montgomery W. P. R. Co., 26 Ga. 111, in support of the contention of inadmissibility. We examined the original record in that case and find that the incident which was the basis of the cause of action in that case happened on November 22, 1855. The declarations were made "the last month of 1855 or the first of 1856." The time element is not conclusive as to whether or not an admission is part of the res gestae. There are other elements, such as in order for an admission of an agent to be binding on a principal the sayings of the agent must relate to the business intrusted to him and to the time while so employed and excludes his sayings as to past transactions. In the instant case the statement of the agent relates to the identical transaction in controversy. Counsel cites Atlanta LaGrange R. Co. v. Hodnett, 29 Ga. 461 (3). At page 469 of that case it is stated that admissions of an agent while he is doing the work of his principal and concerning the work of the principal are admissible and are part of the res gestae. That principle of law applies in the instant case although the facts of that case are different from the facts of the instant case. It follows that the decision in that case is not binding as a cause for reversal of the instant case. In Sweet Water Manufacturing Co. v. Glover, 29 Ga. 399, cited by the defendant, it appears that the agent of the company did not have authority to bind the company for physician's fees and that the agent was without the scope of authority to bind the company for fees, inasmuch as the fees of the physician and declarations made later regarding promises relating thereto were made by the agent and he had no business to make the declarations on behalf of the principal. That case has no application to the facts of the instant case. The declarations made in Miller Co. v. McKenzie, 126 Ga. 746, 749 ( 55 S.E. 952) were not made during the transaction involved and "not in any sense made during its progress. They were not made dum fervet opus. They were not a part of the res gestae." A. K. Adams Co. v. Homeyer, 87 Ga. App. 301 ( 73 S.E.2d 581) is not binding upon this court because the facts are not similar to the facts of the instant case. However we think the principle of law is well expressed regarding admission of declarations on page 303 of that decision, as follows: "The question of whether a given declaration is a part of the res gestae is for the determination of the court and within its sound discretion ( Southern Railway Co. v. Brown, 126 Ga. 1 (3), 54 S.E. 911)." It is true that cases involving executives of companies stand on a different basis. See Krogg v. Atlanta W. P. R., 77 Ga. 202 (4 Am. St. R. 77) and Baker v. Lowe Electric Co., 47 Ga. App. 259 ( 170 S.E. 337). Note the principle of law expressed in Western A. R. Co. v. Beason, 112 Ga. 553, 557 ( 37 S.E. 863) wherein it is stated: "In determining whether declarations should be received as a part of the res gestae of an occurrence, the mere question of the lapse of time is not controlling. The real test is: Were the declarations a part of the occurrence to which they relate, or were they a mere narrative concerning something which had fully taken place and had therefore become a thing of the past? See Augusta R. R. Co. v. Randall, 79 Ga. 304 [4 S.E. 674]; Savannah Ry. Co. v. Holland, 82 Ga. 257 [10 S.E. 200]; Poole v. Railway Co., 92 Ga. 377 [17 S.E. 267]; Roach v. Railroad Co., 93 Ga. 785 [21 S.E. 67]; Electric Ry. Co. v. Carson, 98 Ga. 652 [27 S.E. 156]; Weinkle v. Railroad Co., 107 Ga. 367 [33 S.E. 471]; Howard v. State, 109 Ga. 137, 141 [34 S.E. 330]." The facts of that case are different and are not binding as a cause for reversal of the instant case. In Travelers Insurance Co. v. Sheppard, 85 Ga. 751 ( 12 S.E. 18) the admissions were made by parties having a common interest in the outcome of the case. In that case the Supreme Court said (p. 775): "What the law altogether distrusts is not after-speech but after-thought." The admissions of the agents in the instant case were under circumstances far removed from the admissions in the case immediately hereinbefore cited. In Savannah, Florida Western Ry. Co. v. Holland, 82 Ga. 257, 267 ( 10 S.E. 200, 14 Am. St. R. 158) the court stated: "It is manifest that the act by which the plaintiff was injured had completely terminated before his declarations were made, and that they were no accompaniment of the same. Were they so connected with it in time as to be free from all suspicion of device or after-thought? He had turned his attention from the act to measures looking to his own safety and comfort. He had certainly occupied his thoughts with something besides the facts and circumstances to which his declarations related. He had full opportunity, although no doubt under great suffering, to devise a story in his own interest, and there is no reason for concluding that he did not have capacity to take advantage of his opportunity." This brief statement of fact takes the case out of the scope of the case at bar. In Weinkle Sons v. Brunswick Western R. Co., 107 Ga. 367 (3) ( 33 S.E. 471), testimony of the engineer of the railroad company was erroneously admitted, but there the facts are not analogous to the facts of the instant case, and therefore not binding as authority. There are other cases cited by counsel for the defense but they, too, are not in point.
The provisions of the Code sections are that declarations shall be admissible in evidence as part of the res gestae if such declarations accompany an act, or are so connected therewith in time as to be free from all suspicion of device or afterthought. We think the admissions in the instant case fit the provisions of the Code sections. Counsel for the plaintiff cite William Hester Marble Co. v. Walton, 22 Ga. App. 433 (5) ( 96 S.E. 269) wherein this court held: "An admission made through an agent, during the existence and in pursuance of his power, is no less evidence against the principal than if made by the principal in person. . . Furthermore, if the admission accompany the agent's act, or is so nearly connected therewith in time as to be free from all suspicion of device or afterthought, it is admissible in evidence as part of the res gestae." In Alvaton Mercantile Co. v. Caldwell, 34 Ga. App. 151 (7, 8) ( 128 S.E. 781) this court held: "The rule contemplates that all the res gestae, including declarations forming part thereof, must transpire within the present time of the transaction. But that time, while it cannot be less, may be more extended than the present of the principal fact, in some instances a little, in others much, and in others very much more. Usually if they can all be ascertained, some of the res gestae will be found simultaneous with, and some anterior and others posterior to the principal fact. . . These surrounding circumstances constituting a part of the res gestae may always be shown to the jury along with the principal fact; and their admission is determined by the judge, according to the degree of their relation to that fact, and in the exercise of his sound discretion, it being extremely difficult, if not impossible, to bring this class of cases within the limits of a more particular description." The admission of the declarations of which complaint is made in these special grounds shows no reversible error.
Under the pleadings and the evidence, it was not erroneous for the court to deny the motion for judgment notwithstanding the verdict, nor was it erroneous to overrule the demurrers.
Judgment affirmed. Townsend and Carlisle, JJ., concur.