*1 August 1961, Clаimant testified that on or about he fell work, while at injuring arm; his back and after the shortly fall he dizzy became couldn’t see; he relieved was job go from his so that he could first aid. The first aid records complained upset indicated that he an Claimant stomach. that he further testified Dr. Floyd Morgan shortly went see thereafter and him that he fell his told and hurt He also back. testified that he Dr. told Marvin Mitchell that he had hurt his back at the employer’s plant. The plain- doctors testified tiff made no them. The statements evidence showed that the claimant from a had suffered back and arm ailment some that these time, and ailments could caused disease as well injury, as traumatic and that defendant fall had a traumatic injury aggravated suffered could have the condi- tion The single arm back. made the director follow- findings: ing find “I a matter of fact from the evidence claimant not shown that suffers disability he now alleged result an August fall he on or suffered about I further the claimant find condition attention September 5, 1961, for a ailment, an stomach injury. That apprised neither doctor who testified of an accident injury, nor there evidence injury. оf treatment for a back testify Neither doctor disability existing in claimant’s arm was result of accident. I find therefore support evidence does claimant’s contention of disability re- injury sulting compensation from accidеnt and is denied.” appeal board, to the full On full board affirmed the findings single appeal superior director and on court, the findings the full were affirmed. board The case is before this superior appeal court on сourt.
40016. HODGES v. GEORGIA KAOLIN COMPANY. *2 Rehearing denied May June
Decided Dickens, Jr., plaintiff L. G. error.
Harris, Bussell & John Watkins, Jr., B. Harris, James G. Maddox, contra. *3 Judge. battleground parties The of the here
Ebhrhardt, presents problem the Company whether obli under gation premises prior to mine kaolin from the any leased to the in bringing plaintiff of this action 1961. The Hodges that asks implied an in we hold that there was covenant thе lease obli operations begin to gating Company mining within a rea sonable time after it was executed. theOn other hand, number no Company advances a why reasons covenant found, that asserting language should be contract is clear unambiguous. and
The in provisions payment the lease that during rentals first five years not cumulate applicable as roy- credits to clays alties for mined and for a rental different thereafter indicates, think, we period that at least for that con- templated might that there any operation be during mining period, hence that to it there was implied no covenant. it unnecessary We find whether, to decide the expiration after of the paid first five when the years, rentals did accumulate as against paid, credits be any implied cove- nant since we do hold that the proceed, transpiring events in (notice Hodges Kaolin to by and 1955 to remove tim- overburden, chang- the lease
ber, removal of amendment of ing determining royalty payments, and the sale method of mining- the sinking site for of a well for Kaolin of deep operations property) gave risе to an on part proceed Kaolin with the within a reasonable mining argument Hodges time. The that still had the his land use of fails, portion of it was unsuited for substantial mining that of when overburden was removed. any use save It language pеrtinent. In this of the lease connection kaolin mining removing that the purpose “for provides [of min- carrying on similar purpose clays] or other full shall have neighboring on other Lessee ing operations lands to, all ingress еgress from and over complete rights clays, right land; to search for kaolin or other parts said this or right pile waste earth from make excavations part land . seems adjacent said . .” It property that to remove the abundantly clear us timber pile waste earth on to make excavations overburden, purpose proceed dependent upon of the lessee to leased lands is be with rea- mining operation, donе should diligence” aor “reason- What is “reasonable diligence. sonable here a factual time” circumstances able Haymes, jury. Grant determination engages 892). may that when lessee well be (4) there is operation it will be discovered exploratory can be done no kaolin to mined profitable to make quantities operation, sufficient mine ex- will have been lessee’s duty event operations may render the those fact that The hausted. *4 any rise to cause of fanning for without value When he entered took- action, a lessor risk the lessee the timber causes agreement. into But stops to be removed and the overburden to be cut and gone authority beyond more, think doing has without of thereunder. stopped short its and the lease of here that was done petition alleged Further, it is mining. allegations are doing These intention no demurrer. general against sufficient as damages measure alleged petition The is not general dealt with here since a demurrer does not reach proper of damages. measure v. Sum Crawford erau, App. (111 100 Ga. SE2d Dixie Co. v. Seed (119 App. 386, Smith, SE2d
The generаl petition demurrer to should have been over- judgment is ruled and the Felton, Russell, C.
Reversed.
concur.
J.,
J.,
Rehearing.
On Motion
urged
Aggregate Supply
that the cases of Smith v.
Co.,
(102
Aggregate
539),
Co.,
120
In neither of the
the
involved with which
cases was
Aggregate
given
we here
it
that
appear
deal.
In neither did
had
begin mining
damaged
notice
intention
and had
the land
of
to
so
part
proceed. Rаther,
rise
on
as to
its
installing
it appears
process
a
Aggregate
that
of
in
plant
equipment
purpose mining
for the
of
the
land
right
against the
these cases
do so
protect its
permit
the
wrongfully sought
lessor
terminate
lease
who
of
others.
removal
sand and gravel
He stands
Here
lessee
no termination of
lease.
seeks
about
provisions.
permitted
brought
He
or
its
mining
simply
He
insists
property by others.
begin
lessee,
notice
intention to
having
mining
of its
mining,
in
preparing
taken
which
steps
land
having
having
purpose,
thus
provides
done
may
pur-
his
unfit for
portion
substantial
other
re-
the land to
may
idly by
not thereafter sit
and allow
poses,
sound,
position is
unmined. We
undeveloped
main
or
principal compensation for the lease
since his
particularly
to be
contemplated to be
received for
(99 P
Payne
Neuval,
removal
kaolin.
v.
Cal. 46
Kingman
Co.,
Ariz.
P2d
Feldspar
476); Taylor v.
Summers,
ALR2d 721. And see 2
901;
Annots.
ALR
(Perm. Ed.)
р. 127.
&
Oil Gas
§
case
Palmer Brick
Nor
Co.
have we overlooked
majority opinion
In the
Woodward,
Motion OF INSURANCE COMPANY 39841. OCCIDENTAL LIFE TEMPLETON, Executrix. CALIFORNIA Judge. judgment court; this Oc- Nichols, Presiding 1. The Templeton, App. Co. v. cidental Ins. Life 168), judgment SE2d affirming of the trial court which notwithstanding judgment motion denied defendant’s Supreme verdict, having by been Court of reversed Georgia in Templeton, Occidental Ins. Co. v. Ga. 39 Life 530), this given SE2d direction in the remittitur court that “action by Appeals may be taken the Court of opinion be necessary to the [by effect filed Su preme case,” judgment this court is va Court] the judgment cated of the trial court which denied judgment motion notwithstanding the ver defendant’s given judgment dict is direction be reversed and accordance with the of the Supreme mandate Court. Supreme direction this view court Court given by judgment motion that defendant’s affirmance grounds court on other adhered to must be denied.
Judgment JJ., reversed with and Jordan, direction. Frankum
concur.
Decided June 1963. Fulcher, Fulcher, Ilagler Harper, & J. Walker Harper, plaintiff in error. Evans, D. Curry, Jr., Randall contra.
Jeff 40177. COHEN GOTLIEB.
Decided June