Ready-Mix Concrete Co. v. Rape
| Decision Date | 16 October 1958 |
| Docket Number | No. 1,37245,READY-MIX,Nos. 37244,s. 37244,1 |
| Parties | CONCRETE COMPANY v. H. D. RAPE. H. D. RAPE v.CONCRETE COMPANY |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Wrongful damage to real property caused by a concussion from blasting with dynamite is direct, and constitutes a trespass to realty.
2, 3. It is permissible to allege in an action for damages to real estate alleged to have been caused by the defendant setting off explosions of dynamite, that the defendant was notified of the damage being done the plaintiff's property, and property in its vicinity, and notwithstanding such notice continued to ignite such explosions.
4. In a civil case circumstantial evidence will support a verdict if it preponderates to the hypothesis upon which the plaintiff's right of recovery is based.
5. Where the plaintiff is entitled to recover any part of the sum sued for a verdict for the defendant cannot be directed.
6. A ground of a motion for new trial that depends for its validity on consideration of portions of the record must either quote such evidence or specify its location in the record.
7. A statement by counsel that he objects to the witness' testimony unless the witness can state a particular fact does not invoke a present ruling as to the admissibility of the testimony and amounts to no objection.
8. This court will not examine portions of the record neither set out nor specified in a ground of a motion for new trial.
9. A witness may give his opinion that a particular event caused damage to his property or the property of another.
10. Records of the defendant showing the dates and quantities of dynamite used by the defendant in explosions alleged to have damaged the plaintiff's house are admissible when produced under notice and offered as evidence by the plaintiff.
11. Evidence of all damages to property allegedly caused by an alleged trespasser are admissible and may be proved by estimates made by a competent witness.
12. Testimony as to a blast from a distance and of a volume not revealed by the record are not admissible to show that such blast damaged a particular house.
13. 'Where the plaintiff made out a prima facie case, which was vigorously attacked by the defendant, it was not error to permit the plaintiff to introduce additional testimony in support of his case and in rebuttal of the evidence of the defendant, notwithstanding the same proof might have been adduced on the first examination.' Southern Ry. Co. v. Clay, 130 Ga. 565(4), 61 S.E. 226.
14. The judgment denying the motion for new trial having been affirmed, the cross-bill must be dismissed.
H. D. Rape filed a suit against Ready-Mix Concrete Company for damages to his house allegedly caused by explosions in the defendant's rock quarry.
The petition as amended alleged in part that: Ready-Mix Concrete Company, the defendant, is a corporation of Floyd County, Georgia, and is subject to the jurisdiction of the court; that because of the facts hereinafter set out the defendant has damaged the plaintiff in the sum of $16,250; that the plaintiff is the owner of a frame dwelling occupied by him as a home and situated at No. 9 Vineland Drive according to the present system of numbering in Rome, Georgia; that the defendant operates and has operated during all of the times complained of a rock quarry near the western limits of the City of Rome and approximately 1,000 yards from the plaintiff's dwelling; that the plaintiff's home is located in what is sometimes referred to as the Summerville Park subdivision of the City of Rome, which subdivision consists of several hundred houses located in the same general vicinity and together comprising a densely populated area lying for the most part within the city limits of Rome and within from 500 to 2,000 yards from the defendant's quarry; approximately 48 months ago the defendant began a series of blasting operations in its quarry causing severe explosions to take place at the rate of from one to three or more per week; these explosions were so severe as to cause the plaintiff's house to shake and the windows and doors to rattle audibly; the noise of the explosions was audible to the extent thay they caused the plaintiff actual physical discomfort and nervousness; the plaintiff's home prior to the explosions aforesaid was in good condition, having painted plaster walls which were sound and uncracked; as a result of the explosions caused by the defendant the plaster in all of the rooms of plaintiff's house cracked and became loose and unsightly; the plaintiff's home rests on a brick foundation which varies from approximately one foot to five feet in height; prior to the explosions the foundation wall was in good condition; as a result of the explosions caused by the defendant the foundation wall has split and cracked in a number of places, the damage at the northwest corner of the building being so severe as to require the rebuilding of approximately six feet of foundation wall on both the north and west sides; the aforesaid acts of the defendant were performed with the full knowledge of the close proximity of the plaintiff's residence and the defendant knew, or in the exercise of ordinary care should have known, that such explosions would cause extensive damage to the plaintiff's house and would cause serious annoyance and discomfort to the plaintiff; the acts of the defendant were wilful, wanton, reckless and intentional and without regard to the rights of the plaintiff to the quiet and enjoyment of his home; by reason of the wilful, wanton, reckless and intentional conduct of the defendant the plaintiff is entitled to recover the sum of $15,000 as punitive and exemplary damages to deter the defendant from further acts of a similar nature; the Summerville Park addition aforesaid was originally established more than twenty years ago and comprises a densely populated area in existence prior to the commencement of the defendant's quarry operations; the plaintiff shows that the defendant's blasting operations are continuing and that the plaintiff's home is now and will continue to suffer additional damage unless the plaintiff is awarded substantial punitive and exemplary damages to deter the defendant in the future; several residents of the Summerville Park subdivision, to wit: the plaintiff, Mr. Matthew H. Wagner, Mrs. Elenor Glover and other persons whose names are unknown to the plaintiff notified the officers and agents of the defendant, specifically A. W. Ledbetter, president, and Alfred Carter, secretary and treasurer, that the explosions were causing extensive damage to their homes and requested that the explosions be controlled, limited or reduced so that additional damage would not occur; the defendant wilfully, wantonly, recklessly, and intentionally not only failed to hault, limit or restrict its operations, but continued to cause severe explosions resulting in the damage to the plaintiff as aforesaid.
The defendant filed a general demurrer and special demurrers to the petition which were overruled.
The defendant filed an answer in which he denied the material allegations of the petition and for further answer alleged: '(a) It was not negligent; (b) Its alleged negligence was not the proximate cause of plaintiff's alleged damages; (c) Its manner of conducting its business of a rock quarry was not unusual in a business of such character, and the blasting done by it was reasonable and necessary for the operation thereof; (d) Its manner of conducting its business of a rock quarry was lawful and was executed in a careful, skillful and proper fashion; (e) Plaintiff's damages, if any, are 'damnum absque injuria'.'
Upon the trial of the case the plaintiff testified in part that: he had purchased the house in question in 1947; that he was experienced in carpentry, had inspected the house prior to purchase, that the plaster walls were not cracked; that he knew where the Ready-Mix quarry was located and that it was in a northwesterly direction from his house approximately one and one-fourth miles away; that he began to hear explosions approximately four years ago and that they were coming from the northwest; that the explosions caused the house to tremble and the dishes in the china cabinet to rattle; that he attempted to find out where the explosions were coming from; that he went to Remond Road to the northwest and located the rock quarry; that he then called Mr. Alfred Carter at the Ready-Mix Concrete Company and told him that he thought the explosions were causing his walls to crack and asked if he could do anything about it; that the explosions occurred from two to four times a week; that Mr. Carter said he would bring a machine out to his house to make tests and that he called him a second time but he never did bring the machine out; that about four years ago Mr. Jesse Bradfield, a contractor, remodeled the house and that the walls were repaired and repainted and were in good shape when the work was completed; that on one occasion about 6 o'clock in the evening a blast went off and he heard plaster fall in the hall; that he went out and found plaster on the floor; that they could feel the vibration of the house; that this particular blast came from the northwest about 6 o'clock and approximately two and one-half years ago.
Mrs. Horace Rape, the plaintiff's wife testified in part that: she heard the plaster fall in the hall after a blast from the northwest, and saw the plaster on the floor; that it was in the spring of 1955, maybe in March or April; that she heard the blast and then felt the motion.
Emory L. Ford testified in part: that he built the house involved in 1930 according to good building practices, occupied it for fifteen years, and in July 1945, sold it in good condition to Arthur Rich; that there were no cracks and no settling at that time; that he had water in the...
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