Baldwin Processing Co. v. Georgia Power Co., 41142

• Decision Date: 17 June 1965
• Docket Number: No. 41142,No. 2,41142,2
• Citation: 112 Ga.App. 92,143 S.E.2d 761
• Parties: BALDWIN PROCESSING COMPANY v. GEORGIA POWER COMPANY
• Court: Georgia Court of Appeals

Page 761

143 S.E.2d 761

112 Ga.App. 92

BALDWIN PROCESSING COMPANY v. GEORGIA POWER COMPANY.

No. 41142.

Court of Appeals of Georgia, Division No. 2.

June 17, 1965.

Rehearing Denied July 20, 1965.

Syllabus by the Court

1. A complaint, in special ground 4 of the motion for new trial, that the court failed to charge a principle of law that the defendant had the right to let off water from time to time from the reservoir of its dam for the purpose of carrying out the objects thereof, provided 'it was done with the care of a prudent person who had his crops growing in the fields below' is without merit. That the charge set forth in this ground was in the exact language of a ruling in Brown v. City of Atlanta, 66 Ga. 71, giving a synopsis of charges approved in that case, does not necessarily make such language appropriate as a charge for the jury in the present case. The facts stated in the charge set forth in this ground were not appropriate or applicable here where damage to crops was not involved. See Hogan v. Hogan, 196 Ga. 822(4), 28 S.E.2d 74.

2. Special ground 6 complains of the following charge: 'If you believe from the evidence that high water which flooded the plaintiff's plant was an act of God as the court has just defined to you, it would be your duty to end your deliberations there and return a verdict for the defendant, and you would not consider any claim of negligence or lack of negligence on the part of either.'

'To disconnect a sentence in the judge's charge from what precedes and follows it, gives no just conception of its meaning, import of legal effect and this court cannot consider it, except as it stands related to the other instructions given to the jury.' Wilson v. State, 69 Ga. 224, 240(7). Immediately prior to the charge complained of the court had charged as follows: 'A catastrophe or flood arising from the force of elements which human intelligence cannot predict nor the ingenuity of man can foretell is what is called an act of God.' The charge complained of as given was correct as an abstract principle of law. The charge complained of did not refer to the rain as an act of God, but to the high water which flooded the plaintiff's plant as being an act of God. Construing the charge complained of with the definition of an act of God given immediately prior thereto, the charge complained of could not be construed as authorizing a finding for the defendant where the act of God was not the sole proximate cause of the damage to plaintiff. This ground of the motion for new trial is without merit.

3. Ground 7 of the motion for new trial complains of the failure to give a charge relating to damages resulting from overflow caused by an obstruction in a stream. The failure to give such a charge is not error here because such charge is not adjusted to the facts of the present case where the damages were caused by high water below a dam allegedly resulting from excessive water being released from the reservoir.

4. Where part of the charge excepted to is only part of a sentence, or an uncompleted fragment of a sentence, an assignment of error thereon raises no question for decision. Loudermilk v. State, 41 Ga.App. 286(2), 152 S.E. 593; Leath v. State, 41 Ga.App. 371(1), 153 S.E. 91; Grant v. Maxwell, 160 Ga. 612(2), 128 S.E. 803; Bennett v. State, 169 Ga. 367(2), 150 S.E. 100.

When the charge excepted to consists of a combination of widely scattered excerpts from the charge of the court such exception is insufficient to call for any ruling by this court. Cole v. Pepsi-Cola Bottling Co., 65 Ga.App. 204, 211(3), 15 S.E.2d 543.

Upon application of the above rulings, grounds 20, 25 and 28 of the amendment to the motion for new trial cannot be considered by this court.

5. The owner and operator of a hydroelectric dam is under no duty to operate such facility for the purposes of flood control as to a lower riparian owner, and as to such owner may maintain the reservoir at any particular level it sees fit so long as the storing of 'excessive' water does not create an emergency causing, or necessitating, the dumping of such water to the injury of the owner below. It follows, therefore, that the charge of the trial judge in accordance with this rule, and the failure to charge to the contrary, complained of in grounds 5, 9, 10 and 11 of the motion for new trial, are without merit.

6. The charges complained of in grounds 12, 16, 17 and 18 of the motion for new trial are in accord with the charges approved in Brown v. City of Atlanta, 66 Ga. 71, and are not error for any reason assigned.

7. The charge on damages excepted to in grounds 21 and 23 of the motion for new trial, even if erroneous, affected only the amount of damages and did not authorize the finding of no damages, and the jury having found a verdict for the defendant, such error is harmless and does not require a reversal. Carstarphen v. Central of Georgia Ry. Co., 8 Ga.App. 162, 68 S.E. 848; Cohen Bros. v. Krumbein, 28 Ga.App. 788(3), 113 S.E. 58; Phillips v. Georgia Ry. & Power Co., 27 Ga.App. 21(1), 107 S.E. 357; Union Brokerage Co. v. Fine, 30 Ga.App. 788(2), 119 S.E. 343; Daughtry v. Georgia Power Co., 61 Ga.App. 505, 506(9), 6 S.E.2d 454.

8. Whether or not the charge complained of in ground 19 was (a) a charge relating to the duty of plaintiff to exercise ordinary care in lessening damages, or (b) a charge relating to the duty of plaintiff to exercise care to avoid the negligence of the defendant, it was not error for any reason assigned. In the first event, the verdict being for the defendant, it would not be error even though it 'Might necessarily have relieved the defendant from any damages' (Donaldson v. Central of Georgia Ry. Co., 43 Ga.App. 480, 481, 159 S.E. 738); and, in the second event, the mere statement of facts in charging on a contention of a party is not an expression of opinion that such facts have been proven.

9. The ruling in Jackson v. Matlock, 87 Ga.App. 593(4), 74 S.E.2d 667 that it is error to charge that, 'if the jury should find that the plaintiff and the defendant were equally negligent, the plaintiff would not be entitled to recover, without instructing the jury in connection therewith that the negligence of the plaintiff which would bar his recovery under such rule must have proximately contributed as a cause of the injury received by the plaintiff,' has no application here where the charges complained of in grounds 12 and 14 of the motion for new trial, which charges were given in sequence, refer to the negligence of the plaintiff and the defendant as negligence 'which contributed to plaintiff's injury.' If the plaintiff desired a more particular charge as to proximate cause in connection with comparative negligence, it should have requested the same, and the complaint of the failure to give such a charge made in ground 29 of the motion for new trial is without merit.

10. Ground 26 complains of the failure of the trial judge to give, without request, a charge set forth in that ground relating to the rights and duties of the operator of a dam as to the lower riparian owner. While this charge was taken from the case of Brown v. City of Atlanta, 66 Ga. 71, and was held not to be erroneous in that case and might not have been erroneous here, if given, the charge set forth was not adjusted the facts by reason of the following language contained therein: 'The [defendant] would have to right to let off more water or at greater rate than would be safe and prudent to proprietors below, when the channel was open and free to receive it and carry it off, and if no more than that was discharged from the dam, the defendant would not be liable, whether the plaintiff was injured or not.' The case here involved a situation where the channel below was not open and free but was at a flood stage. This portion of the charge, therefore, would not have been appropriate or adjusted to the facts here, and it was not error to have failed to give such charge. See Terry v. Fickett, 199 Ga. 30, 31(9), 33 S.E.2d 163; Fountain v. Smith, 103 Ga.App. 192(3), 118 S.E.2d 852. 'A refusal to charge a principle of law not adjusted to the facts disclosed by the evidence is not error. A fortiori it is not error to omit to charge such a principle in the absence of a request.' Mitchem v. Allen & Barrow, 128 Ga. 407(3), 57 S.E. 721.

11. All of the other assignments of error as to the charges given and failures to charge already dealt with, and the other grounds of the motion for new trial, have either been abandoned or are without merit. The evidence was amply sufficient to authorize the verdict for the defendant.

Frank O. Evans, Milledgeville, Hansell, Post, Brandon & Dorsey, Jule W. Felton, Jr., Atlanta, for plaintiff in error.

Miller, Miller & Miller, Wallace Miller, Jr., Macon, Troutman, Sams, Schroder & Lockerman, Robert L. Pennington, Atlanta, for defendant in error.

PANNELL, Judge.

The present case is a suit for damages to machinery, merchandise and manufacturing materials caused by high waters and brought by a plaintiff whose plant was located on Fishing Creek and upstream from a bridge thereon. The defendant's dam was approximately four miles upstream on the Oconee River from the confluence of that stream with Fishing Creek. There was a verdict for the defendant and the plaintiff brings error to this court based on exceptions to various charges of the court as given and to the failure of the court to give in charge to the jury various charges set out in the grounds of the motion for new trial. There seems to be a basic disagreement between the parties as to the law of this State relating to upper and lower riparian owners in the situation here involved as set forth in headnote 5 which requires further elaboration.

Plaintiff contends it is the law of this State that the owner and operator of a dam must anticipate freshet and flood conditions and operate its dam so as to have storage capacity to meet such anticipated...