Isley v. Little
| Decision Date | 09 May 1963 |
| Docket Number | No. 22000,22000 |
| Citation | 219 Ga. 23,131 S.E.2d 623 |
| Parties | B. M. ISLEY v. Anne C. LITTLE et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
The order of the trial judge overruling the special demurrers to the petition is affirmed in part, as shown in Division 2 of the opinion, and reversed in part, as shown in Division 1 of the opinion. The order denying the motion for judgment notwithstanding the verdict is affirmed. The order denying the motion for new trial, as amended, is reversed for the reasons set out in Divisions 4, 5, 9, 13, 15, 18, 19, and 22 of the opinion.
Hicks & Howard, Marietta, for plaintiff in error.
Reed, Ingram & Flournoy, Marietta, for defendants in error.
The petitioners sought to enjoin the construction of an automobile racing enterprise, commonly known as a 'drag strip.' It was held by this Court in Isley v. Little, 217 Ga. 586, 124 S.E.2d 80, that the petition as amended stated a cause of action. On the trial of the case the jury returned a verdict for the petitioners. The bill of exceptions in the present case assigns error on the overruling of certain grounds of special demurrer, the denial of a motion for judgment notwithstanding the verdict, and the denial of the motion for new trial, as amended.
1. Paragraph 23 of the petition alleged that small children living in the neighborhood of the 'drag strip' will be attracted by it and it will be a demoralizing influence upon them. This allegation was subject to the ground of demurrer that it is speculative and conjectural. Pittard v. Summerour, 181 Ga. 349, 350, 182 S.E. 20.
Paragraph 17 of the petition alleged that the construction and maintenance of the 'drag strip' by the defendant would deprive the petitioners of the full use and enjoyment of their properties and would amount to an unlawful use or taking of their property by the defendant without due process of law, in violation of the due process clauses of the State and Federal Constitutions. This paragraph is subject to the ground of special demurrer that it 'sets forth an unwarranted conclusion of law.'
2. The defendant demurred specially to paragraphs 6 and 7 of the petition on the ground that the allegations therein are conclusions of the pleader. In the decision of this court on the former appearance of the case some of the allegations in these paragraphs are referred to in listing the elements comprising the nuisance alleged. Since a cause of action can not be shown by allegations which are conclusions of the pleader, Washington Seminary Inc. v. Bass, 192 Ga. 808(2) 16 S.E.2d 565, this was necessarily a ruling that these allegations are not conclusions, but are allegations of ultimate facts. While there are allegations in paragraph 6 in regard to persons congregating at the 'drag strip' for illegal and immoral purposes, which allegations are not based on facts on which the conclusions could properly be based, the demurrer attacks the paragraph as a whole, and since a portion of the paragraph is not subject to the demurrer, we will not hold that the trial judge erred in overruling it.
Paragraphs 8, 9, 10, 15, 16, and 28 of the petition are not subject to the objections raised that they are conclusions of the pleader or contain matter not germane to the issue. Paragraphs 19, 20, and 22 are not subject to the objections that they are speculative, remote, and conjectural. The other special demurrers were abandoned by the defendant.
3. It is strongly urged by the defendant that the trial judge erred in overruling the general grounds of the motion for new trial and denying his motion for judgment notwithstanding the verdict. It is pointed out that this court on the previous appearance of the case stated that the allegations of the petition assert that the 'drag strip' is being constructed in 'an exclusively residential area.' It is contended that the evidence shows that none of the residences are in the immediate vicinity of the proposed 'drag strip,' and that the proposed enterprise would not be in an exclusively residential area.
The petition in several instances referred to the area as a 'residential area,' and it was alleged that the area upon which the 'drag strip' was being constructed 'was formerly in the unincorporated area of Cobb County, Georgia, where zoning laws are operative and required the area involved to be used exclusively for residential purposes.' The opinion on the former appearance of the case referred to these allegations in the following language: 'Where, as here, the petitioners allege that the 'drag strip' is being constructed in an exclusively residential area, formerly zoned for residential purposes by the county governing authority before being taken into the city limits of Powder Springs, which has no zoning regulations, and in the immediate vicinity of the homes of several of the petitioners,' etc. Isley v. Little, 217 Ga. 586, 124 S.E.2d 80, supra.
While the evidence shows that the area surrounding the 'drag strip' under construction is not thickly populated, and there are a few industrial plants in the general area, we can not say that there was no evidence from which the jury was authorized to find that the area immediately surrounding the 'drag strip' property is residential. The witness James H. Pritchett, a real estate appraiser, testified:
The verdict was not without evidence to support it, and the trial judge did not err in overruling the general grounds of the motion for new trial, and denying the motion for judgment notwithstanding the verdict.
4. In ground 4 of the amendment to the motion for new trial it is stated that Captain Eugene Thomas, educational officer of the Georgia State Patrol, was asked the question: 'As the educational officer, patrol officer, of the Georgia State Patrol, have you formed any opinions as to the benefits or detriments to be derived from drag strips for safety on the highways of the State of Georgia?' Counsel for the defendant made the following objection: The objection was overruled and the witness was allowed to answer: The witness further stated: 'We do find that the ones who participate in drag races are the worst type drivers on the highways.' Objection was made to this statement on the ground that it was a conclusion of the witness, prejudicial to the defendant, and had no bearing whatsoever on the issue being tried.
The issue being tried was whether or not the 'drag strip' in the process of construction, in the area in which it was being constructed, would become a nuisance in the manner in which it would be operated. The testimony of this witness related to the question of whether it was to the public interest to allow the operation of a 'drag strip' at any place in the State. It is not contended by the petitioners that a 'drag strip' is a nuisance per se. This testimony was prejudicial to the defendant, and was not germane to the issue. It was erroneous to allow it in evidence.
5. In ground 5 error is assigned on further testimony of the witness Captain Thomas in the same connection as that shown in ground 4. The witness was asked in what way the influence of the 'drag strip' was detrimental to the highway, and the witness replied: 'Well, I will say this, that one of the things that influences people to drive is the fact that they can open up their motors without mufflers as they roar past, and speed goes with it.' The objections to this testimony were that: the witness was testifying as to what another person is thinking; it was a conclusion, irrelevant, and immaterial; and it shed no light on the issue before the court.
While this witness had qualified as an expert witness on traffic safety, he was not authorized to testify as to the motives of other drivers, and this testimony was not germane to the issue on trial.
6. In ground 6 it is asserted that Captain Thomas was asked the following question: 'Have you as an education officer--state what relationship that has to establishing the policy of the State Patrol?' Counsel for the defendant objected to the question on the ground that it would...
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