Berger v. Plantation Pipeline Co. , 121 Ga. App. 362 ( 1970 )

Evans, Judge.

This is an action for damages to private property by reason of the defendants setting off excessive charges of dynamite, causing the injury to plaintiff’s property, allegedly from concussion as a direct result of the blasting with dynamite. The case proceeded to trial before a jury which returned a verdict for the defendant. The appeal is from the final order entering judgment for the defendants. Error is enumerated on, (1) the disallowance of certain evidence, (2) the charge of the court on negligence and on the court’s erroneous concept of the existing law in Georgia relative to damage to realty, and (3) the charge of the court that a wrongful act which puts other forces in operation causes the party to be responsible for the injuries or damages thus created. In substance, the majority of the errors enumerated are based upon the concept of the court that this was a negligence case rather than one of trespass to realty. Held:

1. Injuries to real property caused by concussion resulting from dynamite blasting are considered direct, and constitute a trespass to the realty. “One who voluntarily sets the force in motion is absolutely liable to the injured party despite the exercise of due care.” Brooks v. Ready-Mix Concrete Co., 94 Ga. App. 791 (96 SE2d 213); Ready-Mix Concrete Co. v. Rape, 98 Ga. App. 503 (1) (106 SE2d 429).

2. The petitioner’s pleadings in this case are based on, (1) the failure of the defendants to exercise ordinary care in setting off the dynamite charges in that “the defendants were negligent in setting off a charge,” causing the damages to petitioner’s swimming pool located on his residential property, and (2) the reckless disregard of his peaceful enjoyment of his property.

3. Error is enumerated on the exclusion of the opinion testimony of the plaintiff as a non-expert witness as to the cause of damage to his property. However, counsel failed to perfect the record by making a showing as to what' he expected the witness to answer, or show how the expected answer would be relevant and material and beneficial to him. Paulk v. Thomas, 115 Ga. App. 436 (4) (154 SE2d 872), and cases cited therein. This enumerated error is not meritorious.

4. Where distinct issues are presented in pleadings, it is never error for the trial judge to give in his charge to the jury the law relating thereto, provided the same, is supported by some evidence.- Camp v. Phillips, 42 Ga. 289; Brown v. Matthews, 79 Ga. 1 (4 SE 13); Evans & Pennington v. Nail, 1 Ga. App, 42 (57 SE 1020); Harper v. Hall, 76 Ga. App. 441 (2) (46 SE2d 201); Lacy v. Ferrence, 117 Ga. App. 139 (159 SE2d 479).

5. The charge on “wrongful act” here complained of does not appear to be such “a substantial error in the charge which was harmful as a matter of law,” as to require- a review by this court under Code Ann. § 70-207 (c) (Ga. L. 1965, pp. 18, 31; 1966, pp. 493, 498; 1968, pp. 1072, 1078), and since no objection was made in accordance with Code Ann. § 70-207 (a), supra, appellant cannot complain of this charge. See Hollywood Baptist Church of Rome v. State Hwy. Dept., 114 Ga. App. 98, 99 (150 SE2d 271); Childs v. Childs, 223 Ga. 435, 437 (156 SE2d 21); Yale & Towne, Inc. v. Sharpe, 118 Ga. App. 480, 486 (164 SE2d 318).

Submitted February 4, 1970 Decided March 12, 1970. Powell •& Berger, Richard L. Powell, for appellant. Long, Weinberg, Ansley & Wheeler, John K. Dunlap, for appellees.

6. While the petitioner alleged that the defendants failed to exercise ordinary care in the blasting carried on by them, thus authorizing the charge of the court on negligence, nevertheless, the petitioner also alleged that the defendant set off the charge of dynamite “in reckless disregard of the plaintiff’s right to peaceful enjoyment of his property without damage being done thereto,” thus, in effect, pleading Code § 105-1401; and that the injuries constituted a trespass to realty, and that the one who voluntarily sets the force in motion is absolutely liable to the injured party, despite the execise of due care. The court erred in giving the charge based - solely on the grounds of negligence and failing to charge on trespass. It is the duty of the court to charge the jury on.'the law “as to every controlling, material, substantial and vital issue in the case.” Jackson v. Matlock, 87 Ga. App. 593 (1) (74 SE2d 667); Chambliss v. Kindred, 214 Ga. 712 (3) (107 SE2d 205); Anderson v. Barron, 208 Ga. 785 (4) (69 SE2d 874); Daniel v. Etheredge, 191 Ga. 793 (2) (13 SE2d 763). “Where it fails to give . . . the benefit of a theory of the defense which is sustained by the evidence . . . a new trial must be granted. Clark v. Sapp, 47 Ga. App. 91 (2) (169 SE 692); Susong v. McKenna, 126 Ga. 433 (55 SE 236).” Lincoln Life Ins. Co. v. Anderson, 109 Ga. App. 238, 240 (136 SE2d 1).

Judgment reversed.

Hall, P. J., and.Deen, J., concur.