Brunswick & W.R. Co. v. Hardey

• Decision Date: 25 January 1901
• Citation: 37 S.E. 888,112 Ga. 604
• Parties: BRUNSWICK & W. R. CO. v. HARDEY et al.
• Court: Georgia Supreme Court

37 S.E. 888

112 Ga. 604

BRUNSWICK & W. R. CO. v. HARDEY et al.

Supreme Court of Georgia

January 25, 1901

Syllabus by the Court.

1. An allegation in a petition "that the store or place of business of plaintiffs is situated on" a named street is, as against a general demurrer, a sufficient allegation of ownership by the plaintiffs of the store thus mentioned; but whether owner or tenant of given premises, the person in possession may recover for a tortious interference with his business therein conducted.

2. Although the duty of keeping public streets in order primarily devolves upon the municipal authorities, one who willfully, and without any authority whatever, obstructs a public street, so as to interfere with passage over the same is liable to any person who in consequence sustains special damage.

3. Illegally obstructing a public street so as to prevent the customers of a merchant from using the same as a means of access to his store, and continuing the obstruction a sufficient length of time to work injury or damage to the merchant's business, is inflicting upon him a special wrong, not shared in by the public at large, for which he is entitled to maintain an action.

Error from city court of Waycross; J. S. Williams, Judge.

Action by Hardey & Co. against the Brunswick & Western Railroad Company. Judgment for plaintiffs. Defendant brings error. Affirmed.

W. E Kay and John C. McDonald, for plaintiff in error.

John T. Myers, for defendants in error.

LEWIS J.

J. W. S. Hardey & Co. brought suit for $1,500 damages, in the city court of Waycross, against the Brunswick & Western Railroad Company. The petition alleged, in substance, that until December 26, 1899, there had been for more than 15 years a public road crossing across the line of the defendant company in that part of the city of Waycross known as "Hazzard's Hill," at the intersection of Wilkinson street and the Brunswick & Western Railroad's right of way; that this crossing connected Wilkinson street with the public road which runs along the railroad, and which leads from Waycross to Schlatterville, Ga., and that section of Ware county east of the Brunswick & Western Railroad; and that on or about December 26, 1899, the defendant company tore up and removed this public crossing without any authority of law, and obstructed the same so that passage by the public over the crossing was stopped. Petitioners are engaged in the mercantile business in that portion of the city of Waycross known as "Hazzard's Hill," and their store or place of business is on Wilkinson street, adjoining the right of way of the defendant company, and about 25 yards from the crossing which was torn up and obstructed by it. This crossing is now and has been torn up and obstructed since December 26, 1899, and defendant fails and refuses to remove the obstruction and replace the crossing as required by law. The petition further alleges that the greater portion of plaintiffs' trade is derived from customers who live beyond and on the east side of the railroad, and that they have built up a special trade in that line, many of their customers being country people who come many miles to the city to do their trading, and who delay the purchasing of their goods until they start home, and stop for that purpose at the store of plaintiffs on their way home. It is alleged that all of these customers used this crossing in reaching the store of plaintiffs, as it was the only crossing available for their use, and plaintiffs' store could not be reached in any other way except by great inconvenience. Plaintiffs allege that, on account of the tearing up and obstructing of this crossing, that part of their trade has been diverted into other channels, and has been almost lost to them; and, further, that these customers have formed trade relations elsewhere, and with other parties, and will never return to plaintiffs, for all of which plaintiffs have been damaged $500. Plaintiffs charge that, while the defendant pretended that it was necessary to remove and obstruct the crossing in order to use its steam shovel and operate its gravel train, it has abandoned its work thereat for more than a month, and has willfully and deliberately refused and failed to replace the crossing or remove the obstruction, although requested by plaintiffs so to do, and for this plaintiffs ask that $500 be awarded them as exemplary damages. By reason of the tearing up and obstructing of the crossing as described, plaintiffs have been damaged in the sum of $1,500, for which they pray judgment. To this petition the defendant demurred specially, on the grounds that the damages claimed for injury to plaintiffs' business are too remote, consequential, and speculative to be the subject-matter of recovery in this suit, and that no such state of facts is alleged as would authorize the allowance of exemplary damages to plaintiffs under the law. Defendant also filed a general demurrer, alleging that no cause of action had been set out against the defendant, and that the suit should have been brought against the mayor and council of Waycross, and not against defendant. To the judgment of the court overruling its general, and also its special, demurrer, defendant excepts.

1. It is insisted in the argument in this case that the petition does not show that the plaintiffs below owned the real estate upon which they were doing business, and that the inference is that they were merely tenants thereof. No special demurrer was insisted on by the defendant below on this idea. Besides we think the allegation in the petition that "the store or place of business of plaint...