J. T. Hinson, d/b/a Edgy Wooten Lumber Company, brought suit against Georgia Power Company seeking compensatory damages as a result of a fire on the premises of the lumber company allegedly caused by Georgia Power’s negligent maintenance of electrical wires servicing Hinson’s business. Hinson also sought actual and punitive damages based on the allegation that Georgia Power deliberately and intentionally tampered with evidence critical to Hinson’s suit. The jury returned a verdict in favor of Hinson for compensatory damages to his business but did not award any sums for punitive damages nor attorney fees and other costs of litigation. Georgia Power appeals in Case No. 71605. Hinson’s cross-appeal in Case No. 71606 is specifically contingent on our holding in the main appeal.
On the night of November 9, 1979, a fire broke out at appellee’s lumber business which burned several buildings containing inventory and machinery. Appellant supplied a line of electricity to appellee’s business along a series of overhead wires attached to poles. A single transformer pole, which served as the penultimate point in the line, was connected with a triple transformer pole by four wires: three primary or “hot phase” wires carrying a stepped down 7200 volts and one neutral or ground wire. The guy wires which braced the single transformer pole were connected directly behind the neutral wire, which was the lowest of the four wires extending between the single and triple transformer poles. At the triple transformer pole, the 7200 *264 volts carried by the hot phase wires were again stepped down to provide the amperage required by appellee’s business and then carried, by three customer poles (i.e., poles supplied by appellee), to the various buildings at the lumber company. The main panel box for appellee’s business was located in the planer shed and accommodated three phase wires with 240 volt service plus the neutral wire which was grounded via an aluminum ground lug, wire and an 8-foot ground rod.
1. Appellant contends the trial court erred by denying its motions for directed verdict and judgment notwithstanding the verdict based on the insufficiency of the evidence. First, appellant asserts that the evidence establishing appellant’s negligence was insufficient because the testimony of appellee’s expert witness, Robert English, was based on assumptions and inferences, and thus was wholly without probative value. We find no merit in this assertion. English testified as to his qualifications then stated he had examined the fire scene 9 or 10 days after the subject incident. He determined that current of an amperage far exceeding the capabilities of appellee’s electrical system had passed through the main panel box in the planer shed in the course of going to ground and that the fire started as a consequence of this “fault” current. Based upon his examination of the main panel box, the wiring still on the scene and the wiring appellant had had to replace because of its destruction in the fire, English concluded that the fault current was produced when the neutral wire, strung between the triple transformer pole and a customer pole, had snapped, whiplashed upward into the hot phase wire, and become energized with the current in the live wire. The fault current in the energized neutral wire had then flowed down the wire back towards appellee’s main panel box, destroying the neutral- wire in the process, setting insulation on fire and blasting off the padlocked cover of the panel box before it went to ground. To determine why the neutral wire had snapped, English examined the single transformer pole, found the guy wires still attached to it and stated he saw recent indications that the guys had been tightened. There was evidence from both parties that appellant’s employees tightened these guy wires four days prior to the fire. English stated he observed that the single transformer pole was “sort of bowed like this where a guy had been pulled tight,” and stated that because the guy wires were connected directly behind the neutral wire, tightening the guy wires would place tension on the neutral wire. English testified that because wire contracts at night when the temperature drops, a certain degree of sag must be left in the neutral wire to avoid undue tension. English also noted that the neutral wire used by appellant at appellee’s facility was pure aluminum, rather than reinforced steel core aluminum which has greater tensile strength. Based on his knowledge and experience, English concluded that the night of the fire, the pure aluminum neutral wire did not *265 have the strength to resist the combination of guy wire tension and natural contraction, so it snapped.
“Issues of negligence and proximate cause are generally for the jury, and a court should not decide them except in plain and indisputable cases. [Cits.]”
Collins v. McGlamory,
Second, appellant asserts that the trial court erred by denying its motions for directed verdict and judgment notwithstanding the verdict because the evidence establishing the fair market value of appellee’s damaged property, consisting solely of appellee’s testimony as to replacement costs, was insufficient. The evidence shows that several buildings, some containing machinery and others containing inventory, were totally destroyed by the fire. Appellee’s manager gave detailed testimony as to the extent of the inventory and its value prior to the fire. Appellee testified that he personally had drawn plans and constructed a house, tobacco barn, lot barns and remodeled a house. He testified that he was familiar with the price of motors and equipment, repair costs, replacement costs for parts used in his company’s special equipment, and was familiar with the condition of his machinery and buildings prior to the fire. Appellant then testified as to the fair market value of buildings and machinery before the fire.
The measure of damages here is the difference between the market value of the items before the fire and their fair market value after the fire,
Hill v. Kirk,
2. We find no error in the trial court’s denial of appellant’s motion for directed verdict on the issue of lost profits in view of the jury verdict in favor of appellant on this issue. See
Thornton v. Davis,
Appellant argues that the trial court erred by denying its motions to strike and for directed verdict, both made on appellee’s claim for punitive damages for appellant’s alleged spoliation of evidence. Appellant asserts that the admission of evidence concerning this issue prejudiced the case and inflamed the jury, thereby affecting the verdict rendered. We note that while the issue of the altered evidence was hotly controverted, there was some slight evidence to support appellee’s claim; further, this evidence would have been admissible at trial even had appellee’s claim for punitive damages been struck because of the evidentiary presumption spoliation raises against the spoliator. See
Glynn Plymouth, Inc. v. Davis,
3. Appellant contends the trial court erred by admitting into evidence an interrogatory proposed by appellee in which appellant stated that when its employees responded to a service call at appellee’s business four days before the subject fire, they found the problem not to be appellant’s wire but a customer’s wire. This answer was in conflict with testimony by appellant’s employees and was admitted as a contradictory statement under OCGA § 24-9-83. Appellant’s argument that admission of this evidence “unduly emphasized” its answer, per our opinion in
Goins v. Glisson,
4. Appellant enumerates two errors concerning the jury deliberations. The record reveals that the jury retired for deliberation after listening to two and one-half weeks of proceedings, involving over two dozen witnesses and roughly 200 exhibits. After deliberating less than three hours, the jury- was excused for the day and, upon its return the following morning, was recharged the complete initial charge. The jury resumed deliberations but upon claiming to be deadlocked, they were then given the “dynamite” charge, see generally
Curry v. State,
5. Appellant enumerates errors regarding the trial court’s admission of testimony by appellee’s witnesses, Robert Woods and Robert English, and the trial court’s refusal to admit testimony by appellant’s witness, Roy Gottschalk, and testimony by appellee on cross-examination.
(a) As to Robert Woods, any error in admitting his testimony as to the slant of the single transformer pole shortly before trial is harmless in view of testimony by English that the single transformer pole was bowed nine days after the fire and rebuttal testimony by appellant’s expert witness contending that the slant of the single transformer pole, as observed after the fire up to the time of trial, was not the result of any guy wire overtightening. See generally
Smith’s Transfer Corp. v. Alterman Foods,
We find no error in the admission of testimony by Robert English that appellant’s circuit breakers would have locked out the current had it been one of the hot phase wires which had broken rather than the neutral wire as contended by appellee. The fact that appellant’s circuit breakers would have been activated had there been a fault on the hot phase wires had already been established in the record and English’s response to appellee’s question merely reiterated that fact. The record shows that the question and answer were not proposing the hot phase wire had broken; rather, the testimony was eliminating one of the alternatives English had considered as a possible cause of the fire and explaining why that alternative was not feasible under the facts in this case.
We find no merit in appellant’s final enumeration of error concerning English’s testimony. Contrary to appellant’s assertion, the record reveals the testimony was not offered as evidence of other happenings and transactions but instead was a reference by English to his personal experience which justified his qualification as an expert *269 witness.
(b) The record reveals that the testimony appellant sought to elicit from its expert, Roy Gottschalk, on direct examination was subsequently obtained by appellant on redirect examination. Thus, this enumeration presents no error. See Smith’s Transfer Corp., supra.
The trial court did not err by refusing to admit testimony on cross-examination of appellee as to the subsequent sale of appellee’s business. The proffered testimony shows that the sale occurred five years after the fire, that the inventory was less than half of what it was on the day of the fire, that the replacement buildings were structurally different from the old buildings, and that equipment was not included in the sales price. The trial court did not abuse its discretion in refusing to admit this testimony. See
Allstate Ins. Co. v. McGee,
6. (a) Of the three enumerations contending error in charges given by the trial court, two have been decided adversely to appellant in Division 2, see
Lewyn v. Morris,
(b) Appellant enumerates seven errors from the failure of the trial court to charge certain requests to charge. Requests numbers 4, 9, 10, 11 and 15, which address appellee’s burden of proving that the cause of the fire was neither a mystery nor speculation but was proximately caused by appellant’s negligence as shown by a preponderance of the evidence, were all charged in essence by the trial court and thus present no reversible error. See
Allstate Ins. Co. v. Baugh,
7. Appellant contends the trial court erred by denying its motions for mistrial made at the close of appellee’s opening statement, at appellee’s closing argument, and during trial because of statements exchanged by counsel for both parties during the examination of a wit
*270
ness. “ ‘The trial judge in passing on motions for mistrial has a broad discretion, dependent on the circumstances of each case, which will not be disturbed unless manifestly abused. [Cits.] Unless it is apparent that a mistrial is essential to preservation of the right of fair trial, the discretion of the trial judge will not be interfered with.’ [Cit.]”
Firestone Tire &c. Co. v. King,
8. Appellant’s final enumeration of error is without merit.
9. The affirmance of Case No. 71605 renders it unnecessary for us to address the cross-appeal in Case No. 71606 and it is, accordingly, dismissed.
Judgment affirmed in Case No. 71605. Appeal dismissed in Case No. 71606.