Thе defendant, in its brief, states that the complications arising in the pleadings with reference to interpretation became so complex that it is doubtful that any sort of affirmative analysis can be made, and that the pleadings reached such a state that the plaintiff, the defendant, and the court were at all times in doubt as to the status of the issues. With respect *708 to this statement, we deem it sufficient to point out that the numerous assignments of error by the exceptions and the amended motion for a new trial total some 39 claimed errors.
The first contention of the plaintiff is that the trial court erred in sustaining original demurrer number 5 (a) of the defendant to that portion of paragraph 8 of the plaintiff’s petition as constituting a conclusion which charges that “оn occasions so frequent as to constitute a continuous and uninterrupted chain of events from late in 1954 until the filing of this petition, defendant in the course of its operations caused the explosion of large amounts of dynamite or other high explosives, the amount of which is unknown to plaintiff but well known to defendant.” We do not agree with this ruling of the trial court in sustaining the demurrer to this pоrtion of the petition. The further ground of demurrer sustained to this allegation of the plaintiff was that it failed to show the date or dates when damaging explosions occurred and until this information is alleged defendant contended it was unable properly to prepare its defense. Under numerous cases of our appellate courts it is not necessary for the plaintiff to аllege in the petition information which is peculiarly within the knowledge of the defendant. Furthermore, specific dates were set out elsewhere in the petition as to some of the explosions set off by the defendant.
The next contention of the plaintiff is that the explosions set off by the defendant constituted a trespass upon the plaintiff’s real property. These еxplosions, it is alleged, were between 100‘ and 1,000' yards from the plaintiff’s house and were set off frequently, according to the testimony three or four times a day, and caused the breaking of a window, the shaking of the house, the casting of rocks upon the premises, the cracking of sheet rock on the walls and the ceilings, and the foundation of the house, and did “shake and vibrate plaintiff’s bоdy and cause plaintiff great and grievous discomfort, annoyance, and anxiety concerning the safety of himself, his dwelling and his family.”
It has been held by this court that under similar facts alleged the jury could find that the dynamite vibrations constituted a trespass.
Brooks v. Ready-Mix Concrete Co.,
The next ground asserts that the trial court erred in sustaining the defendant’s original demurrers 7 (b) and 7 (c) which, in brief, were that the plaintiff failed in his petition to identify the location, depth, and thickness of the cracks and breaks in the walls, and that the cost of the repairs was not alleged. As to the failure of the petition to allege the location, depth, and thickness of the cracks and breaks, we think the trial court erred in sustaining this demurrer since all that is necessary for the plaintiff to set forth in his petition is a sufficient statement of his cause of action in order that the defendant may without difficulty understand the nature of the plaintiff’s charge or demand and make preparation to meet it. Under this rule the plaintiff is not required to set forth in his petition the evidence relied on to make out a cause of action.
Watts v. Rich,
49 Ga.
*710
App. 334, 335 (
The trial court properly sustained ground 7 (d) of the original demurrers attacking the failure to allege the date of painting of the dwelling and the name of the painter. These allegations are necessary to an understanding of the plaintiff’s charge, since a part of the defendant’s preparation for the defense might include the interviewing and investigating оf the painter to determine whether the allegation was true or not. Demurrer 7 (f) was improperly sustained by the trial judge. This situation is controlled by the ruling (supra) on demurrer 5 (d).
Defendant’s demurrers 14 (a) and (b), which were sustained, each attacked the plaintiff’s prayer for damages. It was error to sustain these demurrers, as paragraph 16 of the plaintiff’s petition asked for damages for the аlleged difference between the fair market value of the plaintiff’s property! before and after the damages caused by the defendant. This is an appropriate measure of damages for trespass.
Rowland v. Gardner,
*711 Tbe defendant’s demurrer 15 (c), which was sustained, is controlled by the ruling in division 1 of this opinion. The trial court erred in sustaining demurrers 14 (a) and (b) and 15 (c) directed to the plaintiff’s allegations of damage.
The next ground of error pressed is the trial court’s sustaining of the defendant’s original demurrer 15 (d) to paragraph 2 of count 2 of the pеtition. This demurrer urged “that said paragraph fails to show where defendant’s operations constitute a continuing nuisance and, therefore, is a conclusion of the pleader, there being no facts alleged to support this proposition.” It was error to sustain this demurrer, since a reading of count 2 as a whole, including the allegations of count 1 of the petition which were incorporated into count 2, shows sufficient facts alleged to make out a cause of action for a continuing nuisance. The classic definition of a private nuisance is such conduct as constitutes an unreasonable interference with the plaintiff’s interest in the use and enj oyment of his land. Our Georgia statute, paraphrasing Blackstone’s Commentaries, defines a nuisance as anything that works hurt, inconvenience, or damage to another.
Code
§ 72-101;
Coker v. Birge,
The trial court erred in sustaining ground 16 (b) of the defendant’s original demurrers to paragraph 2 of count 3 of the plaintiff’s petition, since the manner and scope of the personal injuries alleged to have been suffered by the plaintiff in the petition was sufficient to apprize the defendant of the plaintiff’s cause *712 of action, which included the right to reсover for personal injuries.
Defendant’s original demurrer 19 (a) to paragraph 5 of count 3 of the plaintiff’s petition was improperly; sustained by the trial court. Paragraph 5 so demurred to simply charged that “defendant could have moved the material being mined on its premises without the use of high explosives.” This did not constitute merely an unsubstantiated conclusion of the pleader, but was the pleading of an ultimate fact to be proved by the evidence.
The defendant’s original demurrers 20 (a) and (b) were sustained to paragraphs 6 (a) and (b), which resulted in striking from count 3 certain ordinances of the City of Rockmart. The basis of this ruling was that the alleged ordinances had no-application under the allegations of the petition to any acts of the defendаnt. The trial court properly sustained the demurrer to paragraph 6 (a) of count 2 of the plaintiff’s petition, as that ordinance obviously deals with malicious mischief, and here the allegations of the petition do not charge this type of conduct to the defendant. The second ordinance alleged in paragraph 6 (b) and demurred to reads “It shall be unlawful for any pеrson to interfere, injure, or deface any property of another in this city, whether the same be done in the spirit of mischief or otherwise.” The trial court erred in striking this ordinance, since it could be found to apply to the acts of the defendant as alleged in the petition.
The defendant’s original demurrer numbered 21 (a) was sustained to paragraph- 7 of count 3 of the plaintiff’s рetition on the grounds that there are no allegations in the paragraph or elsewhere in the petition which show acts of gross negligence, and that the allegation constitutes a conclusion of the pleader. Gross negligence is defined in the Code as the failure to exercise that degree of care which every man of common sense, howsoever inattentive he may be, exercises under the same or similar circumstances.
Code
§ 105-203. The petition as a whole charges the defendant with repeatedly setting off dynamite charges over a period of years, in violation of the plaintiff’s rights and after repeated warnings that these explosions injured the plaintiff’s person and property. Under the circumstances there was a
*713
sufficient allegation of conduct which a jury1 could find to be gross negligence or worse, and such questions are for the jury.
Wallace v. Clayton,
The next ground of error is that the court improperly sustained the defendant’s demurrer 22 (a) to the paragraph of count 3 of the petition which asked for exemplary damages because of the aggravated nature of the defendant’s acts of negligenсe as set forth in that count. The usual rule is that punitive or exemplary damages will not lie for acts of negligence; in general, they are restricted to torts arising from intentional wrongful acts and are not allowable where the injury is inadvertent, as is the case with negligent wrongs.
Code
§ 105-2002. However, where, as the petition here charges, the defendant, after being warned of the injury to the plaintiff’s lаnd, person, and property, continued to set off the explosions, a jury might find that the act was such as to evince an entire want of care and conscious indifference to consequences which would justify an award of exemplary damages.
Battle v. Kilcrease,
The next ground of error charged arises from the trial court’s order of March 31, 1959, which reversed its previous order of September 11, 1958, to overrule, instead of sustain, the defendant’s original demurrer number 2. The purpose of the order was stated as “Being to reinstate the allegations concerning the exemplary damages.” This order refers to a ruling on the demurrers filed June 2, 1958. The plaintiff contends this attempted amendment of the previous ruling was void because it was confusing and misleading, inasmuch as there were no demurrers filed on June 2, 1958. An order revoking a ruling on demurrers to pleadings entered at a previous term is erroneous.
General Tire Service Co. v. Carlisle,
The next ground of error assigned is that the trial court, after the evidence had been concluded, denied the plaintiff’s motion for a directed verdict “of liability on count 1 of the petition on the grounds that the evidence with reference to count 1 demanded a verdict in favor of thе plaintiff.” The trial court did not err in denying the motion for a directed verdict for the plaintiff. The mere refusal of a trial judge to direct a verdict is not reviewable by a direct bill of exceptions which assigns error only on the refusal. See catchword “Refusal”, annotations under Codei § 110-104. The proper way — indeed, the only way^ — to perfect an appeal on the refusal of a trial judge to direct a verdict is to make a legal motion for a judgment notwithstanding the verdict. The motion n. o. v. being based on the refusal of the trial judge to direct a verdict, it necessarily follows that the overruling of the motion n. o. v., properly excepted to, allows the appellate courts to consider the presence of error in the refusal to grant the motion for a directed verdict. See Code Ann. § 110-113.
Special grounds numbered 1 and 5 of the amended motion for new trial contend that the trial court made an error in its instructions to the jury as to the measure of damages. In division 3 of this opinion the proper measure of damages is set forth. It therefore becomes unnecessary to pass upon this assignment of error, as the ruling in division 3 disposes of thе question. While the charge in this case was incorrect as to the measure of damages, it was immaterial as the verdict exonerated the defendant on the issue of liability.
Carstarphen v. Central of Ga. Ry. Co.,
Special ground number 2 complains that the trial judge expressed an opinion as to the meaning of an ordinance of the City of Rockmart, Georgia, which had been introduced in evidence by the defеndant. While an expression of opinion by the trial
*715
judge as to what has or has not been proved by the facts is error
(Code
§ 81-1104), the trial judge may express an opinion as to what the law is when he instructs the jury.
Powell v. State,
Special ground 3 was abandoned.
Sрecial ground 4 of the motion for new trial contends that the trial judge erred in instructing the jury in part, referring to count 1 which charged the defendant committed a trespass, that “plaintiff could not recover if his injuries were the result of his own negligence ...” The remainder of this instruction dealt with the necessity of the plaintiff’s exercising ordinary care for his own safety. It appears self-evident as a desirable rule of law that contributory negligence should not be a defense to a wilful tort, and the Georgia courts have so held.
Central R. & Bkg. Co. v. Newman,
Special ground 6 of the motion urges that the trial court erred in leaving out the word, “reduction,” in a portion of the charge which related to the measure of damages for the property involved. The plaintiff contends that a jury is more likely to understand the word, “reduction,” than “diminution.” We are unwilling to attribute such ignorance to jurors, and will not presume that jurors are not conversant with the English language. This ground has no merit. Furthermore, since here the jury found for the defendant, had there been error in the charge on the measure of damages it would have been harmless.
Special ground 7 of the motion assigns error in the court’s refusing to сharge, pursuant to written request, that it is not
*716
necessary for the plaintiff to prove liability of the defendant under the legal theories of all three counts in the petition in order to be entitled to recover. As the written request contained a correct statement of the law and was applicable, it was mandatory for the trial judge to give it in his charge to the jury.
Code Ann.
§ 70-207.
Vaughan v. Vaughan,
Special grоunds 8, 9, and 10' of the motion are considered as abandoned.
Special ground 11 assigns error in the admission of testimony of a witness for the defendant as to the condition of the plaintiff’s house which he found upon his inspection of the house over a year after the suit was filed. The defendant contends that the plaintiff made no valid objection to the admission of the evidence at the time it was offered, and the only objection raised is in the following language: “I object to the question. The inspection of the house was made after the filing of the suit.” This language is insufficient to form a basis for a valid obj ection. The vice of this objection is that it did not make the point that a proper foundation was not laid in that there was no showing that the house was in the same condition at the time of inspection after the suit was filed as it was over a year earlier at the time of the damage. “A specific objection showing a harmful error must be offered at the time the evidence is presented.”
McDaniel v. State,
The other special grounds of the motion for new trial were abandoned.
The judgment of the trial court is reversed in part and affirmed in part in accordance with the rulings stated in the opinion.