Piedmont Cotton Mills, Inc. v. H. W. Ivey Const. Co.

• Decision Date: 23 June 1964
• Docket Number: No. 3,No. 40619,40619,3
• Citation: Piedmont Cotton Mills, Inc. v. H. W. Ivey Const. Co., 137 S.E.2d 528, 109 Ga.App. 876 (Ga. App. 1964)
• Parties: PIEDMONT COTTON MILLS, INC., et al. v. H. W. IVEY CONSTRUCTION COMPANY, Inc
• Court: Georgia Court of Appeals

Page 528

137 S.E.2d 528

109 Ga.App. 876

PIEDMONT COTTON MILLS, INC., et al. v. H. W. IVEY CONSTRUCTION COMPANY, Inc.

No. 40619.

Court of Appeals of Georgia, Division No. 3.

June 23, 1964.

Syllabus by the Court

1. (a) A contractual right being a property right, one may recover for an interference with his contractual relations by an act of another destroying property and so interfering with the performance of the contract. Thus, where it is alleged that plaintiff had contracted to build a bridge on the land of another and that defendant went upon the land and destroyed the work that plaintiff had accomplished in seeking to fulfill its contractual obligation, the petition sets out a cause of action although the plaintiff had no interest in the realty.

(b) Where the act interfering with contractual relations is unlawful in itself, it is presumed that the wrongdoer intended to injure the plaintiff in its property right in the contract, as one must be presumed to intend the consequences of his unlawful conduct.

(c) If a petition sets out a cause of action under any theory, it is error to dismiss the action on general demurrer.

2. It was not harmful error in this case to overrule a special demurrer complaining of failure to allege matters peculiarly within the defendant's knowledge.

3, 4. Where the petition sets out an intentional tort, alleging that the injuries were done wilfully, wantonly, maliciously and in bad faith, it sets out causes of action for attorney's fees and for additional damages.

H. W. Ivey Construction Company, Inc., filed its petition against T. W. Tift and Piedmont Cotton Mills, Inc., alleging as follows:

On November 21, 1961, General Warehouse 2, Inc., engaged the petitioner as a general contractor to construct an office building, a parking lot, paving and a bridge upon the land of General Warehouse 2, Inc. In the performance of its contract petitioner proceeded to build a concrete bridge across a stream that traversed a thirty by two hundred foot strip of land connecting the main body of the land with the public street. 'Petitioner shows that it had excavated an area ten feet in width at a point where said stream crossed said strip and in which area concrete footing had been poured and your Petitioner was then in the process of constructing three concrete reenforced walls on said footing across which a concrete re-enforced slab was to be poured and would constitute a bridge over and across said stream and within said thirty foot strip.' [O]n Friday evening, October 5, 1962, and after yuour petitoner's workmen, servants and employees had completed their work on said bridge for that day, the defendant, T. W. Tift individually and as an officer of Piedmont Cotton Mills, Inc., acting within the scope of his authority, did wilfully, wantonly and maliciously go on the property of the said General Warehouse 2, Inc., and with the use of a tractor and cable did tear down, demolish and destroy the work that had been done on said bridge by your petitioner.' Petitioner was required at its expense to clear away the debris and reconstruct said bridge in substantially the same manner as had been originally constructed. [L]oss as above enumerated herein constitutes a direct and proximate loss suffered by your petitioner in that said work rendered by your petitioner for and in behalf of General Warehouse 2, Inc. is not acceptable by the owner (General Warehouse 2, Inc.) until and unless the same has been fully completed, approved and accepted by said owner.'

The petition prays for verdict and judgment against the defendants jointly and severally in the sum of $2,558 for the actual labor and material in the re-construction of the bridge, $10,000 as punitive damages and $1,000 as attorney's fees.

Each defendant filed several demurrers to the petition. Both defendants except to the order overruling their respective demurrers.

Wotton, Long, Jones & Read, Grigsby H. Wotton, Atlanta, for plaintiffs in error.

Richardson & Chenggis, George B. Chenggis, Chamblee, for defendant in error.

BELL, Presiding Judge.

1. The theory upon which the plaintiffs in error found this appeal as portrayed in their brief is that the suit against them is one for trespass to real estate neither owned nor possessed by the plaintiff and consequently the injury to the realty is a cause upon which the petitioner cannot sue. If the suit was in fact one for trespass under those circumstances, there would be, of course, nothing incorrect about their theory as a matter of abstract law. The theory, however, is not appropriate to this case.

We readily concede that the petition is subject to the reasonable construction that the concrete footing and walls were a part of the realty when destroyed and that the plaintiff had no 'possession' of the realty in the legal sense but had only a mere right of occupancy of the land and this not in its own right but only by virtue of the permission of the true owner. We even acknowledge that the petition does attempt to state a cause of action for damage to the realty. All these things, however, although definitely misleading, are not fatal to the petition, as it effectively delineates another cause of action--i. e., the petitioner did have an interest in property for damage to which he is entitled to recover. 'If a petition sets out a cause of action under any theory, it is error to dismiss the action, as against general demurrer.' Childs v. Blaine, 84 Ga.App. 847, 850, 67 S.E.2d 787. The Childs principle would be true even though, as here, the pleading of the sound cause of action was more a product of coincidence or sheer accident than of the intent or design of the pleader.

A contractual right is a right in rem, and the parties to a contract have a property right in the agreement. Luke v. DuPree, 158 Ga. 590, 124 S.E. 13; Wometco Theatres Inc. v. United Artists Corporation, 53 Ga.App. 509, 186 S.E. 572; Carpenter v. Williams, 41 Ga.App. 685, 154 S.E. 298. 'The right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully...