Opinion
36553.
DECIDED FEBRUARY 22, 1957.
Action for damages; arbitration, directed verdict. Before Judge Manning. Cobb Superior Court. October 30, 1956.
Ben F. Smith, Pittman Greene, for plaintiff in error.
Sam J. Welsch, contra.
1. The general grounds are without merit.
2. No reversible error appears in the special grounds.
DECIDED FEBRUARY 22, 1957.
The Western Atlantic Railroad desired to improve its right-of-way in 1952 and 1953 by covering up a fill. The right-of-way of the railroad is thirty-three feet on either side of the track. On the right-of-way there were large trees which had grown near the track. Some years prior to this suit, J. G. Wood, the plaintiff, purchased a tract of land adjacent to the railroad's right-of-way. Prior to the time the defendant desired to improve its track, the plaintiff had encroached on the land owned by the defendant and had erected a hedge and a driveway thereon. During the course of the improvement of the railroad right-of-way it was necessary for the defendant to cut down some trees on the right-of-way and to remove the hedge of the plaintiff from the right-of-way. The plaintiff claimed that the defendant in the process of these improvements, and in the use of its right-of-way had damaged him in the sum of $8,500. The defendant demurred to the petition of the plaintiff and filed an answer. During the pendency of the suit the parties agreed on a settlement of $1,600 to cover all alleged damages caused to the plaintiff by the defendant except a small strip of land or area containing 0.21 acres located at the bottom or "toe" of a high fill on the right-of-way in question. A plat of this strip was attached to the pleadings. Subsequently to the time the check for $1,600 had been paid, the plaintiff and the defendant entered into an arbitration agreement which provided the method and means for settling the matter in dispute. The arbitration agreement is set forth as an exhibit in the record and shows that all parties agreed that the Atlanta Real Estate Board should appoint a panel of arbitrators to determine the value of the 0.21 acres of land. This was done and the panel determined: "One hundred fifty and no/100 — ($150) dollars represents full compensation to Dr. Jay G. Wood."
At the completion of the evidence the court directed a verdict for the defendant. The plaintiff filed a motion for new trial on the statutory grounds and thereafter added special grounds covering two points only. It is on this judgment that the case is here for review.
Counsel for the plaintiff stated in the argument that while they do not argue the general grounds, these grounds are not abandoned, but on the contrary they are insisted on.
1. So far as the general grounds are concerned they are without merit under the record of this case.
2. The first point argued in relation to the special grounds is that the court should have granted a nonsuit rather than a directed verdict. The principle of a nonsuit has been discussed many times by the appellate courts. Generally speaking, if a plaintiff does not make out his case as alleged and there is no conflicting evidence or admissions from the opposite party, a nonsuit is proper, and in such event the plaintiff may again bring the suit on the same cause of action in a different way. It is contended by the plaintiff that the defendant did not introduce new evidence. We have read the record and find that during the progress of the trial the defendant, in its answer, made a tender and a continuing tender of the $150 and further, during the progress of the trial the defendant, in its answer, made a tender and a continuing tender of the $150 and further, during the progress of the trial the defendant paid this $150 into court. This ground is without merit for the reason that evidence was presented, and furthermore evidence was not necessary, in view of the fact that the motion for new trial contained admissions by the plaintiff covering the subject matter. See Carver v. Carver, 199 Ga. 352 ( 34 S.E.2d 509), and Dinkler v. Baer, 92 Ga. 432 (4) ( 17 S.E. 953). Code § 38-402 provides: "Without offering the same in evidence, either party may avail himself of allegations or admissions made in the pleadings of the other."
We come next to discuss the arbitration phase of the case. In Culbreth v. Smith, 202 Ga. 102, 105 ( 42 S.E.2d 432) the Supreme Court said: "As was said in King v. Davidson, supra, [ 69 Ga. 708] `Awards are to be favored by the courts, as they are designed to terminate controversies, and they should be sustained when made in conformity to law, unless vicious or defective for some manifest cause, properly made known to the court." See Tinsley v. Maddox, 176 Ga. 471 (1) ( 168 S.E. 297) wherein the court stated. "Arbitrations are favored by the courts. They are introduced by law to end litigation." There are many other decisions to the same effect. There is nothing irregular or vicious or defective in the arbitration now under consideration. We might add here that a party dissatisfied with an award can not impeach it by some remark or remarks made by an arbitrator after the award has been rendered. See Eberhardt v. Federal Ins. Co., 14 Ga. App. 340 ( 80 S.E. 856). This special ground is without merit.
The court did not err in the judgment for any reason assigned.
Judgment affirmed. Townsend and Carlisle, JJ., concur.