Harrison v. Kiser

• Decision Date: 31 October 1887
• Parties: Harrison. vs. Kiser.
• Court: Georgia Supreme Court

79 Ga. 588

Harrison. vs. Kiser.

Supreme Court of the State of Georgia

OCTOBER TERM, 1887.

[COPYRIGHT MATERIAL OMITTED.]

Practice in Superior Court. Evidence. Charge of Court. Master and Servant. Torts. Principal and Agent. Contractors. Ratification. Damages. Before Judge Marshall J. Clarke. Fulton Superior Court. March Term, 1887.

In his declaration, the plaintiff alleged that he was the owner of a brick building of the best material and workmanship, and of modern and improved style, the door and window sills and the columns in front being of granite, and the foundation being bedded in clay from one to three feet below the earth's surface, there being no basement room; that the defendant, preparatory to the erection of a three story brick building on her lot, which lay adjoining his property on the north side, caused to be dug thereon an excavation from nine to twelve feet deep for a basement of her building, in a rainy season, and negligently and unskillfully caused to be removed from under his north wall its natural and lateral supports, the workmen, with picks and shovels, cutting away earth one to three inches thick from plaintiffs lot across the line, whereupon the rain dashed against and undermined the earth under his wall, and caused it to crumble and fall away, so that his floor sank by the consequent settling of his wall, the front of his building was cracked from top to bottom, the windows and doors were wrenched out of plumb, one of his front granite columns split at its base, the window-sills in his second story broke, and the inside plastering on his north wall and overhead was broken and destroyed; that the foundation stones of defendant's building next to plaintiff's line were rough, jagged rocks, not fitting closely up to his house and the earth underneath, but leaving an exposure between the two walls at some places; and that to properly repair the damage done to his building would cost $5,000.

The defendant pleaded the general issue. Her testimony by interrogatories was introduced by the plaintiff, and among other things, she testified that her building was put up by contract with one McGilvray and not under her direction; that the only person she placed any authority with was her brother-in-law, M. C. Kiser, who made the contract and attended to it all, after consultation with her, she giving him authority to act for her. The other evidence introduced by the plaintiff tended to support his allegations, and to show that a proper construction of the adjoining building, so as not to injure his own, would require a different and more careful manner of work than the one pursued.

The defendant introduced no evidence, but cross-examined the plaintiff's witnesses. The jury found in her favor. The plaintiff moved for a new trial on the grounds stated in the decision; and this being refused, he excepted.

Geo. T. Fry, for plaintiff in error.

Candler, Thomson & Candler, for defendant.

Blandford, Justice.

The plaintiff in error brought his action against the defendant in error to recover damages which he alleged he received by reason of the careless and negligent manner in which the defendant had excavated her grounds adjoining the plaintiff's building, whereby the plaintiff's house was injured and damaged. The case went to trial, and a verdict was had for the defendant; and thereupon the plaintiff moved the court for a new trial, on several grounds.

1. Besides the general grounds, the motion for new trial alleges that the court erred, during the progress of the trial, in denying and refusing the prayer of the plaintiff, in whichhe prayed that W. S. Thomson, Esq., one of the defendant\'s counsel, who had acted as a commissioner, together with the plaintiff\'s counsel, in taking the testimony of McGilvray, be required to return the same into court, it being alleged that such testimony was still in the hands of Thomson. It appeared that this application was made after the opening speech to the jury by defendant\'s counsel and the reply thereto by the plaintiff\'s counsel, and during the concluding speech by the defendant\'s counsel, the defendant being entitled to open and conclude the case. We see no error in this ruling of the court. If the testimony was material, the application came too late. Besides, it was in the discretion of the court to stop the case and compel the testimony to be brought in, and to allow the same to be introduced in evidence, thereby reopening the whole case. This discretion of the court we do not feel authorized to interfere with, as we are satisfied in this case that no injustice was done the plaintiff.

2. It is further alleged as error, that the court refused to give the following charge requested by counsel for the plaintiff: " Where the proof shows that there is evidence in existence which, if produced, would show the truth of the matter in controversy, and that evidence is within the control of one of the parties to be affected by it, and such party fails to produce such evidence, the presumption of law is that, if the evidence were produced, it would be against the interest of the party withholding or failing to produce it." Under the facts of this case, there was no error on the part of the court in refusing to give this charge, inasmuch as the plaintiff...