Cantrell v. Red Wing Rollerway, Inc., 74697
| Decision Date | 14 October 1987 |
| Docket Number | No. 74697,74697 |
| Citation | 184 Ga.App. 506,361 S.E.2d 720 |
| Parties | CANTRELL v. RED WING ROLLERWAY, INC. |
| Court | Georgia Court of Appeals |
William R. McCracken, Augusta, for appellant.
Patrick J. Rice, Augusta, for appellee.
Appellant James Cantrell, plaintiff below, brings this appeal from a jury verdict for defendant, Red Wing Rollerway, Inc. Cantrell lives on land immediately to the rear of Red Wing's skating rink in Augusta, Richmond County, Georgia. On March 6, 1985, Randy London, the manager of Red Wing, was cleaning up the rink, inside and outside. He was being assisted by an employee, Donnell Smith, and a friend of Smith's named Chris. Smith was mowing the grass outside the building. Chris was painting stripes in the parking lot. London left to buy more paint and to have lunch. When he returned, a fire was in progress behind the skating rink.
Cantrell, who lives behind the rink, was alerted to the fire by his sister-in-law, and when he first saw the fire, it was about half-way between the rink and his property. Although the fire department responded promptly, it was unable to keep the fire from destroying an open storage shed behind Cantrell's house and its contents. It was a dry and very windy day, and the strength of the wind spread the fire faster than the firemen could control it. An assistant fire chief, who was identified only as "Chief Newman," arrived shortly after the second alarm was sounded. He took charge of the additional fire units and the department personnel and after the fire was extinguished, investigated the cause. His testimony is replete with hearsay (see Cawthon Motor Co. v. Scheufler, 153 Ga.App. 282, 285-286, 265 S.E.2d 96), as he was permitted to state, without objection, what everyone told him they had seen prior to the discovery of the fire. (While we set forth herein hearsay utterances that were heard by and possibly considered by the jury in reaching its verdict, we have wholly disregarded all hearsay in reaching our decision.) The Chief talked to Cantrell who told him "he had been burning earlier but the fire [was] not going to come out of [his] pit and go [against] the direction of the wind." The operators of "Savin-Haven," a package shop, and Champion Oil The chief was permitted to testify that he spoke to "Mr. Sterns and his wife, who lived in this trailer that's right behind the Savin-Haven" and
There was a path beside the skating rink and it was his opinion the fire "would have started over to your left of that path somewhere." The Chief spoke to the skating rink's clean-up crew and was told that they were cleaning up, cutting grass and sweeping up the parking lot, and they did not know how the fire started. Although the Chief made a thorough investigation of the case of the fire, he could not say what started the fire. In his opinion, it was "dry enough that somebody just casually throwing a match over into some of this grass or throwing a lighted cigarette over into that grass, could have possibly started a grass fire of this nature." The manager of the skating rink denied that he had employed several young boys to come out there to cut the grass and help them out.
Cantrell filed this action for damages for the value of the materials stored in his shed. The jury found for the defendant, and appellant moved for a new trial. An amendment to the motion for new trial was filed in which it was alleged that newly discovered evidence had been found which would show that an eyewitness would testify that he saw "several boys operating a lawnmower and starting a fire in a large pile of grass" while he was walking on a path next to the skating rink and when he came out of the drug store thereafter he saw the smoke from the fire and heard the approach of the fire engine.
The trial court denied the motion for new trial, and appellant brings this appeal. Held:
1. Appellant contends the trial court erred in refusing his motion for new trial on the basis of newly discovered evidence. Grants of new trial on the ground of newly discovered evidence are not favored (Reed Oil Co. v. Harrison, 26...
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