17 S.E.2d 601 | Ga. Ct. App. | 1941
1. The measure of damages for the destruction of cordwood, gathered hay, or other produce stored or contained on lands burned over by the negligent acts of another, is the market value of such property at the time of the burning.
2. When lands are burned over by the negligent acts of another and young trees are injured or destroyed and pasture grasses are burned, and the plaintiff has laid his cause of action as for diminution in the values of the lands, the measure of damages is the amount of diminution in the values taken before and after the fire. All values of things growing or spread over the lands must be considered only in their relation to this diminution, and not in relation to any quantum of damages to them as specifics.
3. When, as to such negligent burning, the cause of action is laid as for the quantum of damages to the young trees and pasture grasses as specifics, and not in reference to any diminution in the values of the lands, the measure of damages for the destruction of young trees by such burning is set out in Central Railroad Banking Co. v. Murray,
4. Whether the cause of action be laid as for diminution in the values of the lands or as for the quantum of damages resulting in the burning of the specifics growing or spread over such lands, the measure of damages for fencing injured or destroyed is, as set out in Central Railroad Banking Co. v. Murray, supra, headnote 4, for the "cost of restoring it and making its condition as good as that in which it was when injured or destroyed."
5. As above indicated, the two causes of action are separate and distinct, and must not be confused or overlapped; and all proofs must go in support of the one or the other.
In the first count the plaintiff alleged that the fire burned over five acres of pasture land, destroying clover, Lespedeza, Bermuda, and other grasses, with seeding, the damage amounting to $15 per acre, or a total of $75; burned two cords of wood cut and stacked on the property, value $2.50 per cord, or a total of $5; burned twenty-five fence posts, value twenty cents each, or a total of $5; and burned certain young pine and other trees, the damage amounting to $15. The total of the damages alleged under this count was $100. The jury returned a verdict for $100. In the second count the plaintiff alleged that the fire burned over twenty acres of pasture land, causing damage to clover, Lespedeza, Bermuda, and other grasses, and seeding, of $15 per acre, or a total of $300; burned thirty-three fence posts, value twenty cents each, or a total of $6.60, and that $5 would be required as expense of replacing the fence; and burned young pine and other trees growing on five acres of this tract, the damage amounting to $15. The total of the damages alleged under this count was $326.60. The jury returned a verdict for $226.60. In the third count the damage alleged was $10, the value of one ton of hay cut and stacked on the lands and burned on the occasion set out in this count. The jury returned a verdict of $7.50.
The properties damaged or destroyed are of two classifications — first, the ton of hay and the two cords of wood, which had no relation to the lands save that they were stacked thereon; and second, the pasture grasses, the young trees, and the fence posts (with costs of replacing) which had relation to the lands, either by growing on them or by attachment to them. The assignments of error are to the following excerpts from the charge: "In all cases, necessary expenses consequent upon the injury done are a legitimate item in the estimation of damages. Damages may be either general or special, direct or consequential. In this case the plaintiff sues only for special damages. Special damages are such as actually flowed from the act and must be proved in order to be recovered." "If plaintiff is entitled to recover she is entitled to recover the market value of property destroyed by the defendant's negligence." "If the plaintiff is entitled to recover for property damaged but not *272 destroyed, the measure of recovery is the difference between the market value of the property before the fire and its market value after the fire, if it was damaged by fire." The court also charged the jury, to which no exceptions are taken, that "Damages are given as compensation for the injury done, and generally this is the measure where the injury is of a character capable of being estimated in money." We have quoted this last excerpt as having a proper bearing, not only on the excerpts previously quoted, but on any other charge which should have been given. These assignments of error are, in part, meritorious, but under the facts of this case we do not think the errors require a reversal. The remaining assignments are without merit.
As to the first classification of property, the ton of hay and the two cords of wood, the court should have charged specifically as to them that the measure of damages was their market value at the time they were destroyed. As to the second classification of property, the pasture grasses, the young trees, and the fence posts, the court must look to the cause of action as laid. If recovery be sought on the allegations of injury to the lands, then the measure of damages would be "the diminution in the value of the premises resulting from the injury caused by such firing;" and the question for the jury's determination would be "what was the value of the premises" to the plaintiff "before the fire occurred, and how much has the value of the premises been diminished since the fire occurred." But in this connection the measure of damages to fencing, even in its relation to the diminution in the value of the lands (Louisville NashvilleRailroad Co. v. Kohlruss,
It is conceivable, however, that there might be burnings over lands when there would result no damage measured in diminution of their values (Central Railroad Banking Co. v. Murray,
"For fencing injured or destroyed, the recovery should be measured by the cost of restoring it and making its condition as good as that in which it was when injured or destroyed." CentralRailroad Banking Co. v. Murray, supra. This measure in the instant case should have been so charged.
In the light of the rules of law which the court should have charged we have carefully examined the evidence, and, having resolved all conflicts in favor of the verdict (Western Atlantic Railroad v. Mathis,
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur. *275