Western Geophysical Co. of America v. Rowell

• Decision Date: 18 May 1972
• Docket Number: No. 3,No. 47132,47132,3
• Citation: 126 Ga.App. 427,190 S.E.2d 921
• Parties: WESTERN GEOPHYSICAL COMPANY OF AMERICA v. Allen S. ROWELL
• Court: Georgia Court of Appeals

Page 921

190 S.E.2d 921

126 Ga.App. 427

WESTERN GEOPHYSICAL COMPANY OF AMERICA v. Allen S. ROWELL.

No. 47132.

Court of Appeals of Georgia, Division No. 3.

May 18, 1972.

Rehearing Denied June 13, 1972.

Fendig, Dickey, Fendig & Whelchel, Anthony D. Smith, J. Thomas Whelchel, Brunswick, for appellant.

Ronald F. Adams, Brunswick, for appellee.

Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

Allen S. Rowell filed his complaint against Western Geophysical Company of America, alleging that his building in the community of Hortense was damaged in the amount of $4,000 by tremors and vibrations set off by defendant in its search for crude oil and natural gas deposits. The jury returned a verdict for plaintiff in the amount of $4,000, and from the judgment thereon defendant appeals.

1. Error is enumerated on the denial of defendant's motion for directed verdict on the ground that there was no proof that the claimed damages were caused by defendant. There was ample evidence on this issue to be passed upon by the jury, and we find no error here.

The evidence shows that at approximately 1:45 p.m. on October 2, 1970, plaintiff and his wife heard a series of explosive vibrations which trembled the building. On a street adjacent to the building they observed a caravan composed of large trucks setting off explosive charges and approximately seven or eight other vehicles. The large trucks stopped, the wheels were raised up and a base plate went down, and a loud, explosive noise occurred, trembling everything.

Plaintiff introduced defendant's response to interrogatories by which defendant affirmed that it did have a mineral research party in Brantley County and in the vicinity of Hortense on October 2, and further stated the locations, distances apart, and the manner in which the vehicles operated in the community of Hortense. The manner of operation as described by defendant is substantially consistent with the description given by plaintiff's witnesses, and it appears that the vehicles were engaged in an activity followed by the defendant, viz., exploration for minerals. Plaintiff also introduced a request for admission by which defendant admitted that its oil exploration equipment as described in its responses to interrogatories was operating in Hortense on October 2, and plaintiff's wife testified that this was the only oil exploration caravan that came through Hortense that day. While the evidence on the issue of agency is meager, we believe it was enough to raise a jury question. Enumeration 6 is without merit.

2. On direct examination plaintiff's wife was allowed to testify, over defendants' hearsay objection, that it was her estimate it would cost between $4,000 and $5,000 to repair the damages to the building caused by the vibrations. However, there was no evidence to show that she was in any way familiar with the costs of repair to this type building. As to the basis of her estimate, she testified on cross examination: 'Q. Where did you get these estimates of the value of the repairs? A. He talked to several people. Q. He-who do you mean? A. Mr. Rowell (plaintiff). Q. Mr. Rowell? A. Yes. Q. You did not talk with any of them? A. No, I haven't . . . Q. You don't know who these estimates may have come from? A. No, I don't.' Defendant then moved to strike her testimony as to her estimate of the cost of repairs, which was overruled, and these rulings are assigned as error.

We reverse. While it has been held that evidence of value is not to be excluded merely because the valuation fixed by the witness as a matter of opinion may to some extent depend upon hearsay (see, e.g., Gulf Refining Co. v. Smith, 164 Ga. 811(4), 139 S.E. 716; Powers v. Powers, 213 Ga. 461(2), 99 S.E.2d 818), ¹ in the instant case plaintiff's wife's estimate of the cost of repairs was not based upon her own knowledge, experience, or familiarity with these matters (Hoard v. Wiley, 113 Ga.App. 328, 147 S.E.2d 782) but was based solely upon what several unindentified people told her husband and was thus not competent evidence of the amount of damage, Kenner v. Whitehead, 115 Ga.App. 760, 761(2), 156 S.E.2d 136; Turk v. Jackson Electric Membership Corp., 117 Ga.App. 631, 161 S.E.2d 430; cf. Harper v. Harper, 220 Ga. 770, 771, 141 S.E.2d 403, was impermissible hearsay (Cf. City of Atlanta v. Atlanta Title and Trust Co., 45 Ga.App. 265, 164 S.E. 224), was an impermissible attempt by the witness to prove the opinion of others, Sullivan v. Hugly, 32 Ga. 316(1); Wynes v. State, 182 Ga. 434, 435(2), 185 S.E. 711; Camp v. Ledford, 103 Ga.App. 197, 198(1), 119 S.E.2d 54, was hearsay based upon hearsay, Wilson v. Coleman & Ray, 81 Ga. 297(3), 6 S.E. 693; Equitable Mortgage Co. v. Watson, 119 Ga. 280, 282, 46 S.E. 440; Wynes v. State, 182 Ga. 434(2), 185 S.E. 711, supra; Camp v. Ledford, 103 Ga.App. 197, 198, 119 S.E.2d 54, supra; Houston v. Jefferson Standard Life Ins. Co., 119 Ga.App. 729, 732, 168 S.E.2d 843; cf. Bailey v. E. F. Wood & Co., 24 Ga. 164; Todd v. State, 200 Ga. 582, 587, 37 S.E.2d 779, or was 'hearsay in the second degree' without probative force or value. Estill v. Citizens & Southern Bank, 153 Ga. 618, 625, 113 S.E. 552.

Since this objectionable testimony is the only evidence as to repair costs upon which the jury could have based its $4,000 verdict, the error is harmful and requires a new trial.

3. Moreover, even if the testimony of plaintiff's wife as to repair costs could be considered as having probative value, it is insufficient to meet the tests of Spacemaker, Inc. v. Borochoff Properties, 112 Ga.App. 512, 145 S.E.2d 740 and Zeeman Mfg. Co. v. L. R. Sams Co., 123 Ga.App. 99, 179 S.E.2d 552. In brief, those...