Williams & Templeton v. Brewer

• Decision Date: 16 February 1956
• Docket Number: No. 2,No. 35949,35949,2
• Citation: 93 Ga.App. 603,92 S.E.2d 586
• Court: Georgia Court of Appeals
• Parties: WILLIAMS and TEMPLETON et al. v. E. K. BREWER

Page 586

92 S.E.2d 586

93 Ga.App. 603

WILLIAMS and TEMPLETON et al. v. E. K. BREWER.

No. 35949.

Court of Appeals of Georgia, Division No. 2.

Feb. 16, 1956.

Rehearing Denied March 14, 1956.

This case began as an equitable one, growing out of a dispute between the parties over timber lease. There were prayers for injunction by each side seeking to enjoin the cutting of certain described timber. For a statement of the pleadings, see Brewer v. Williams, 210 Ga. 341(6), 80 S.E.2d 190, 194, where the court held that 'it was error for the trial judge to dismiss the cross-action of the defendant upon the theory that it sought to recover damages upon a cause of action arising ex contractu as against the plaintiffs' action as one ex delicto'.

Following that decision, the trial court overruled various demurrers to the defendant's cross-action, to which no exceptions were taken, and upon a trial of the issues made by the defendant's cross-action, the jury returned a verdict for the defendant and against the plaintiffs in the amount of $10,000. The plaintiffs' motion for a new trial, based on the usual general grounds and 17 special grounds, and the motion for a judgment notwithstanding the verdict on behalf of the St. Mary's Kraft Corporation, were denied, and they assign error in the present bill of exceptions on each of those judgments.

In transferring the case to this court, the Supreme Court held that '* * * it now appears that the timber involved in this litigation has been cut. Therefore, any question relating to enjoining the cutting of the timber or interference therewith has become moot, and the trial judge so ruled and so instructed the jury in his charge. The only questions remaining, and the only questions submitted to the jury, are was there a trespass and an illegal cutting of the timber and what amount of damages should be assessed.' Williams and Templeton v. Brewer, 211 Ga 786, 89 S.E.2d 269, 270.

Sharpe & Layne, Lyons, Chas. L. Gowen, Chris Conyers, Brunswick, for plaintiffs in error.

James E. Findley, Savannah, Jackson & Graham, Vidalia, for defendant in error.

Syllabus Opinion by the Court.

CARLISLE, Judge.

1. 'Where a party sues for specific damages he has the durden of showing the amount of loss claimed in such a way that the jury may calculate the amount of loss from the data furnished and will not be placed in a position where an allowance of the loss is based on guesswork. National Refrigerator [& Butchers' Supply] Co. v. Parmalee, 9 Ga.App. 725, 72 S.E. 191.' Studebaker Corp. v. Nail, 82 Ga.App. 779, 785, 62 S.E.2d 198, 202; Davis v. Price, 72 Ga.App. 565, 34 S.E.2d 565.

2. Under the decision of the Supreme Court in which this case was transferred to this court, Williams and Templeton v. Brewer, 211 Ga. 786, 89 S.E.2d 269, the only questions remaining for decision are whether there was a trespass and illegal cutting of the timber and what amount of damage should be assessed; and, under an application of the principle of law announced in division 1 of the present decision to the facts of the case in its present status, a verdict was demanded for the plaintiffs in error under the evidence, and the trial court, consequently, erred in denying the motion for a judgment notwithstanding the verdict as to St. Mary's Kraft Corporation, and in denying the motion for a new trial as to Williams & Templeton. The defendants Williams and Templeton were, under the terms of their lease, entitled to all the timber of a specified size on the described lands. The defendant St. Mary's Kraft Corporation was, under the transfer of...