Georgia Power Co. v. Hinson

• Decision Date: 22 May 1986
• Docket Number: 71606,Nos. 71605,s. 71605
• Citation: 179 Ga.App. 263,346 S.E.2d 73
• Parties: GEORGIA POWER COMPANY v. HINSON. HINSON v. GEORGIA POWER COMPANY.
• Court: Georgia Court of Appeals

Page 73

346 S.E.2d 73

179 Ga.App. 263

GEORGIA POWER COMPANY v. HINSON.

HINSON v. GEORGIA POWER COMPANY.

Nos. 71605, 71606.

Court of Appeals of Georgia.

Decided May 22, 1986.

Rehearing denied June 3, 1986.

Certiorari Denied July 16, 1986.

James V. Towson, Macon, John E. Bumgartner, J. Thomas Whelchel, Brunswick, Wallace Miller, Jr., Macon, for appellant in No. 71605 and appellee in No. 71606.

J.S. Hutto, Brunswick, for appellant in No. 71605.

J.S. Hutto, Karen M. Krider, Brunswick, for appellee in No. 71606.

SOGNIER, Judge.

J.T. Hinson, d/b/a Edgy Wooten Lumber Company, brought suit against Georgia Power Company seeking compensatory damages as a result of a fire on the premises of the lumber company allegedly caused by Georgia Power's negligent maintenance of electrical wires servicing Hinson's business. Hinson also sought actual and punitive damages based on the allegation that Georgia Power deliberately and intentionally tampered with evidence critical to Hinson's suit. The jury returned a verdict in favor of Hinson for compensatory damages to his business but did not award any sums for punitive damages nor attorney fees and other costs of litigation. Georgia Power appeals in Case No. 71605. Hinson's cross-appeal in Case No. 71606 is specifically contingent on our holding in the main appeal.

On the night of November 9, 1979, a fire broke out at appellee's lumber business which burned several buildings containing inventory and machinery. Appellant supplied a line of electricity to appellee's business along a series of overhead wires attached to poles. A single transformer pole, which served as the penultimate point in the line, was connected with a triple transformer pole by four wires: three primary or "hot phase" wires carrying a stepped down 7200 volts and one neutral or ground wire. The guy wires which braced the single transformer pole were connected directly behind the neutral wire, which was the lowest of the four wires extending between the single and triple transformer poles. At the triple transformer pole, the 7200 volts carried by the hot phase wires were again stepped down to provide the amperage required by appellee's business and then carried, by three customer poles (i.e., poles supplied by appellee), to the various buildings at the lumber company. The main panel box for appellee's business was located in the planer shed and accommodated three phase wires with 240 volt service plus the neutral wire which was grounded via an aluminum ground lug, wire and an 8-foot ground rod.

1. Appellant contends the trial court erred by denying its motions for directed verdict and judgment notwithstanding the verdict based on the insufficiency of the evidence. First, appellant asserts that the evidence establishing appellant's negligence was insufficient because the testimony of appellee's expert witness, Robert English, was based on assumptions and inferences, and thus was wholly without probative value. We find no merit in this assertion. English testified as to his qualifications then stated he had examined the fire scene 9 or 10 days after the subject incident. He determined that current of an amperage far exceeding the capabilities of appellee's electrical system had passed through the main panel box in the planer shed in the course of going to ground and that the fire started as a consequence of this "fault" current. Based upon his examination of the main panel box, the wiring still on the scene and the wiring appellant had had to replace because of its destruction in the fire, English concluded that the fault current was produced when the neutral wire, strung between the triple transformer pole and a customer pole, had snapped, whiplashed upward into the hot phase wire, and become energized with the current in the live wire. The fault current in the energized neutral wire had then flowed down the wire back towards appellee's main panel box, destroying the neutral wire in the process, setting insulation on fire and blasting off the padlocked cover of the panel box before it went to ground. To determine why the neutral wire had snapped, English examined the single transformer pole, found the guy wires still attached to it and stated he saw recent indications that the guys had been tightened. There was evidence from both parties that appellant's employees tightened these guy wires four days prior to the fire. English stated he observed that the single transformer pole was "sort of bowed like this where a guy had been pulled tight," and stated that because the guy wires were connected directly behind the neutral wire, tightening the guy wires would place tension on the neutral wire. English testified that because wire contracts at night when the temperature drops, a certain degree of sag must be left in the neutral wire to avoid undue tension. English also noted that the neutral wire used by appellant at appellee's facility was pure aluminum, rather than reinforced steel core aluminum which has greater tensile strength. Based on his knowledge and experience, English concluded that the night of the fire, the pure aluminum neutral wire did not have the strength to resist the combination of guy wire tension and natural contraction, so it snapped.

"Issues of negligence and proximate cause are generally for the jury, and a court should not decide them except in plain and indisputable cases. [Cits.]" Collins v. McGlamory, 152 Ga.App. 114, 262 S.E.2d 262 (1979). See also Groover v. Dickey, 173 Ga.App. 73, 74(2), 325 S.E.2d 617 (1984). Thus, the trial court properly submitted to the jury the issue whether the tightening of the guy wires by appellant's employees was negligently performed and, if overtightened, whether this was the proximate cause of the fire. Appellant's argument that the conclusion drawn by appellee's expert that the guy wires had been overtightened was speculative and conjecture is without merit. "There is no debate that [English] is an expert knowledgeable in the investigation and analysis of fires, in particular, electrical fires. He fully described his investigation and analysis of the fire, basing his conclusions and opinions on principles of electrical engineering and facts he observed and interpreted in the debris of the fire. It was reasonable that he draw conclusions as to the cause of the fire, and he was qualified to do so. [Cits.] As was emphasized in his testimony above, a fire naturally tends to burn out its own tracks and thus there will generally be some speculation by an expert testifying as to the anatomy and cause of a fire; but where his opinion testimony is based on observed facts the testimony is competent evidence, and its weight, insofar as how speculative it may be, is to be determined by the jury. [Cit.]" Johnson v. Fowler Elec. Co., 157 Ga.App. 319, 322(2), 277 S.E.2d 312 (1981).

Second, appellant asserts that the trial court erred by denying its motions for directed verdict and judgment notwithstanding the verdict because the evidence establishing the fair market value of appellee's damaged property, consisting solely of appellee's testimony as to replacement costs, was insufficient. The evidence shows that several buildings, some containing machinery and others containing inventory, were totally destroyed by the fire. Appellee's manager gave detailed testimony as to the extent of the inventory and its value prior to the fire. Appellee testified that he personally had drawn plans and constructed a house, tobacco barn, lot barns and remodeled a house. He testified that he was familiar with the price of motors and equipment, repair costs, replacement costs for parts used in his company's special equipment, and was familiar with the condition of his machinery and buildings prior to the fire. Appellant then testified as to the fair market value of buildings and machinery before the fire.

The measure of damages here is the difference between the market value of the items before the fire and their fair market value after the fire, Hill v. Kirk, 78 Ga.App. 310, 311, 50 S.E.2d 785 (1948), and it is uncontroverted that the items for which compensatory damages were sought were totally destroyed by the fire. Although appellant enumerates as separate error the admission of testimony by appellee as to the fair market value of the damaged property on the basis that it was testimony of replacement value, we find no error by the trial court in admitting appellee's opinion testimony as to the fair market value of the damaged property before the fire. The record reveals that appellee had adequate opportunity to form a correct opinion as to the value of the items lost, OCGA § 24-9-66, and that the values to which he testified were those prior to the fire. Thus, there was no error in the admission of his testimony, see generally, Shadowood Assoc. v. Kirk, 170 Ga.App. 209, 211(3), 316 S.E.2d 487 (1984), and, because of this evidence, it was not error to deny appellant's motions for directed verdict and judgment notwithstanding the verdict. See generally White Repair & c. Co. v. Daniel, 171 Ga.App. 501(1), 503(2), 320 S.E.2d 205 (1984).

2. We find no error in the trial court's denial of appellant's motion for directed verdict on the issue of lost profits in view of the jury verdict in favor of appellant on this issue. See Thornton v. Davis, 162 Ga.App. 692, 693(5), 293 S.E.2d 1 (1982).

Appellant argues that the trial court erred by denying its motions to strike and for directed verdict, both made on appellee's claim for punitive damages for appellant's alleged spoliation of evidence. Appellant asserts that the admission of evidence concerning this issue prejudiced the case and inflamed the jury, thereby affecting the verdict rendered. We note that while the issue of the altered evidence was hotly controverted, there was some slight evidence to support appellee's claim; further, this evidence would have been admissible at trial even had appellee's claim for punitive...