Carter v. Marble Products, Inc.

• Decision Date: 11 July 1934
• Docket Number: 9824.
• Citation: 175 S.E. 480,179 Ga. 122
• Parties: CARTER v. MARBLE PRODUCTS, Inc., et al.
• Court: Georgia Supreme Court

175 S.E. 480

179 Ga. 122

CARTER v. MARBLE PRODUCTS, Inc., et al.

No. 9824.

Supreme Court of Georgia

July 11, 1934

Syllabus by the Court.

1. Generally, nothing more is required to entitle one to give testimony as an expert than that he has been educated in the particular trade or profession; and special knowledge in regard to a particular subject may be derived from experience as well as study and direct mental application.

(a) In the absence of anything to the contrary, the presumption is that the evidence of a witness is based on his personal knowledge, and is not hearsay.

(b) The court did not err in admitting the testimony referred to in special grounds 1 and 2 of the motion for new trial.

2. Where a noncontractual admission is introduced in evidence against the author, it is the right of the latter to explain it by proof of the attendant circumstances; and such proof may be submitted through any witness having knowledge of the conditions and circumstances under which the admission was made.

3. The evidence as to the failure of any person for a period of years specified to return for taxation the alleged right to the marble situated in or upon certain lands was not inadmissible for any reason urged.

4. It appears from the record that the plaintiff was not harmed by the excerpt from the charge of the court of which he complained.

5. The evidence authorized the verdict for the defendants; and no reversible error having been committed, the court did not err in overruling the plaintiff's motion for a new trial.

Error from Superior Court, Gilmer County; Ben P. Gaillard, Jr. Judge.

Suit by S. M. Carter against Marble Products, Incorporated, and others. Judgment for defendants, plaintiff's motion for a new trial was overruled, and plaintiff brings error.

Affirmed.

Harold T. Patterson and Dorsey & Shelton, all of Atlanta, for plaintiff in error.

Hewlett & Dennis and Lindley W. Camp, all of Atlanta, for defendants in error.

BELL Justice.

Samuel M. Carter brought his petition against J. R. Goble, Marble Products, Inc., and others, and alleged that in 1850 Farish Carter, who was the owner of three land lots in Gilmer county, Ga., made to William Goble a warranty deed thereto in which deed was the following reservation: "The said Farish Carter hereby expressly reserving and excepting to himself, his heirs, executors, administrators, and assigns all the marble and marble quarries on, in, or upon said lots of land, together with the waterpower upon said lots for machinery of every character, together with the perpetual right of way, ingress and egress, to and from all the quarries of marble on said lots with all vehicles, and also the right to all necessary wood for fuel on said lots." Plaintiff alleged that he acquired the interest of Farish Carter in the marble, as reserved in the deed; that W. F. Goble and J. R. Goble acquired the interest of William Goble; that the marble interest owned by him included a mineral known as dolomite; that the defendants in error conspired to defraud him of his marble interest, and to that end defendants W. F. Goble and J. R. Goble executed and delivered to defendant Williams certain leases of the dolomite, which leases defendant Williams in turn transferred to defendant Marble Products, Inc. Plaintiff claimed that the marble interest was of a certain value. He prayed for an injunction restraining defendants from removing the mineral termed "dolomite," and for cancellation of the leases as a cloud upon his title.

The defendants filed answers in which they denied the plaintiff's contention, except that they admitted the execution of the deed by Farish Carter to William Goble, as alleged in the petition, and that the plaintiff is the present owner of whatever rights were reserved by the grantor therein; and further admitted that they claim their right and title under William Goble. They alleged that the leases in question merely conveyed the right to remove dolomite or dolomitic limestone, and that this is a mineral separate and distinct from marble as the term "marble" was used and understood in the deed made by Farish Carter to William Goble in 1850. They denied that they were removing any marble from the land in question, and disputed the plaintiff's right to any of the relief sought.

Upon a previous trial of the case the jury found a verdict in favor of the defendants, and a judgment refusing a new trial was reversed by this court because of errors in the admission of evidence and in the charge of the court. A more complete statement of the contentions of the parties as contained in the pleadings may be found in Carter v. Marble Products, Inc., 171 Ga. 49, 154 S.E. 891. Upon a subsequent trial the defendants again prevailed, and once more the plaintiff assigns error upon the refusal of a new trial.

1. In the first special ground of the motion for new trial, the movant complained of the admission of the following testimony of J. A. Williams, a witness for the defendants: "Commercially, my understanding of marble is, material that can be gotten out in blocks and used in a commercial way, in that way, and whitestone is material we get out and crush into chips." The evidence was objected to on the ground that it was "manifestly an opinion and conclusion of the witness, who was not an expert and who was not qualified to give an opinion of that kind," and that "it was hearsay evidence." In special ground 2 error was assigned upon the admission of the testimony of the same witness as follows: "I have been in marble quarries and seen how that is gotten out, only in a general way. I have seen them get it out at other places. It is gotten out with channeling machines and derricks. I only know what the common acceptance of marble is in a commercial way. In my experience as a marble man I have never seen marble gotten out like this material is gotten out at Whitestone. I have never seen marble gotten out with a jack-hammer and dynamite and afterwards used in a commercial way, as marble is now used." The objections to this evidence were the same as those stated in ground 1, above. There is no merit in either of these grounds. The witness testified that he was engaged in the marble business in the vicinity of the land in question from 1916 to 1929, being manager of a mining plant operated under the name North Georgia Marble Products Company, and that he had been in marble quarries and had observed in a general way the manner in which such quarries are operated. He further testified that he knew what the common acceptance of marble is in a commercial way. Assuming that the testimony objected to could be considered as opinionative, we think it sufficiently appeared that the witness was an expert concerning the subject about which he testified, and that the court did not err in refusing to exclude the testimony. In Macon Railway & Light Co. v. Mason, 123 Ga. 773 (5), 51 S.E. 569, it was held that, generally, nothing more is required to entitle one to give testimony as an expert than that he has been educated in the particular trade or profession, and that special knowledge in regard to a particular subject may be derived from experience as well as study and direct mental application. Under this rule the witness was prima facie qualified. There is nothing to indicate that he was testifying from hearsay. "Unless it affirmatively appears that evidence is hearsay, it is not to be excluded as such where it is of a nature which admits of its resting on the personal knowledge of the witness." Atlanta Glass Co. v. Noizet, 88 Ga. 43 (2), 13 S.E. 833. See, also, Shaw v. Jones, Newton & Co., 133 Ga. 446 (3), 66 S.E. 240; Jarriel v. Savannah Guano Co., 34 Ga.App. 72, 128 S.E. 237.

2. The plaintiff introduced in evidence statements of account issued by Marble Products, Inc., in which it billed to a customer certain material as "marble chips"; also a letter from the same company, in which it solicited an order for such material. These documents were introduced as containing admissions by Marble Products, Inc., that the material which it was removing from the land consisted of marble within the purview of the reservation relied on by the plaintiff. These documents were issued by an agent or representative of the company by the name of Hubbard, who did not testify as a witness and whose absence was apparently unaccounted for. R T. Willingham, assistant office manager of the company, was permitted to testify as follows, in explanation of the documents just referred to: "On May 17th, 1926, I was assistant office manager of Marble Products Inc. This paper you hand me, purporting to be a bill of Marble Products Inc. to U.S. Mosaic Tile Company, I know why the material mentioned in that bill was billed out as marble chips. When they started using this whitestone for terraza, it took the place of marble chips which had been used up to that time, the marble chips imported from Italy, entirely. When we first began to receive orders our customers asked for marble chips. And if we had billed out that material as anything else, we would have raised a question in their minds as to its fitness for the purpose they had ordered it for marble chips. And, however they ordered it, that was the way we showed it on our invoices. As to this other paper you hand me, dated March 16th, 1926, on the bill head of Marble Products Inc. to U.S. Mosaic Title Company, the same reason I have just given as to the other bill applies for that having been billed out that way. And I will say this, in the majority of these cases, this same material was not billed as white marble chips; these two bills are the exception. I would say that over the period of a year or two, 1926 and 1927, we had eight or ten orders from the Mosaic Tile Company...