Pratt Engineering & Machine Co. v. Trotti , 142 Ga. 401 ( 1914 )

Beck, J.

(After stating the foregoing facts.)

1. There was no error in overruling the objections to the 'amendment. The petition alleged the creation and maintenance of a nuisance after due notice to the defendant and a request by the plaintiff to abate the same, the nuisance thus maintained being one which destroyed to a large extent the value of plaintiff’s property upon which was located the home of herself and her family, and endangered the lives and health of petitioner and members of her family. It was competent by way of amendment to allege and prove, if proof existed, that the defendant, in maintaining the nuisance in the manner pleaded, acted wilfully, wantonly, and in bad faith, and intentionally caused petitioner unnecessary inconvenience, and that in consequence thereof the defendant was liable to petitioner in a stated sum as exemplary and punitive damages. Such an amendment did not add a new and distinct cause of action; nor was it objectionable on the ground that it was not germane to the cause of action set forth in the original petition; nor was it “improper and illegal under the theory of and the issues raised by the allegations of the original petition.” Savannah &c. Railroad v. Holland, 82 Ga. 257 (10 S. E. 200, 14 Am. St. R. 158); Southern Ry. Co. v. Jordan, 129 Ga. 665 (59 S. E. 802). If the allegations of the original petition are true, the defendant, after notice and request to abate, was maintaining a nuisance which not only lessened the value of the plaintiff’s property but endangered the lives of herself and her children. If it did this, with knowledge of the fact and under circumstances authorizing recovery of damages for the injury to the plaintiff’s property, it was also competent to allege and prove that it did it wilfully, wantonly, and in bad faith, with the intention of causing petitioner unnecessary inconvenience, to show the existence of aggravating circumstances of the tort, which would authorize the giving of additional damages. Civil Code, § 4503; Morris v. Duncan, 126 Ga. 467 (54 S. E. 1045, 115 Am. St. R. 105); Georgia Railroad Co. v. Gardner, 115 Ga. 954 (42 S. E. 250).

2. Evidence having been introduced showing the value of the property of the plaintiff before the erection of the alleged nuisance and after the erection of it, and the difference between the value of the property before the erection of the nuisance and the price at which the plaintiff subsequently sold it, the court did not err, as against the defendant, in charging the jury that they should consider this evidence “only for the purpose of illustrating, if it does, the question of how much, if any, the plaintiff was injured in the use and occupation and enjoyment of the premises.” The evidence referred to in this part of the charge had gone to the jury without objection. The question of the materiality of such evidence is raised in the exception to this charge, but was not raised at the time the evidence was offered and admitted. If, as complained in the exception to this charge, the evidence here referred to was immaterial to the case, such an objection should have been made when the evidence was offered; for as it had gone before the jury for their consideration, they might, without some limitation in the charge of the court, have considered it generally and for all purposes, and the defendant was not injured by the court’s instruction which put a limitation upon the purposes for which it might be considered, and narrowed down the effect of the evidence to the one purpose of illustrating the question as to how much, if any, the plaintiff was injured in the use and occupation and enjoyment of the premises.

3. Under the ruling made in the first division of this opinion, the court did not err in charging the provisions of section 4503 of the Civil Code, allowing exemplary damages under certain circumstances.

4. Grounds of a motion for a new trial complaining that the verdict was contrary to the charge of the court are included in the general grounds that the verdict is contrary to law and without evidence to support it.

5. While the verdict in this case is large, we can not say that it is entirely without evidence to support it. And, as was said in the case of Southern Railway Co. v. Wood, 114 Ga. 140 (39 S. E. 894, 55 L. R. A. 536): "It may be that if we had been upon the jury we would have taken the view that a less amount would be full compensation for the wrong; but the law has reposed in the jury the right to deal with these matters, and we have no authority to interfere with their finding on the subject, when it has been approved by the trial judge, unless the amount involved is so great as to suggest bias and prejudice on their part.” See also East Tenn. &c. Ry. Co. v. King, 88 Ga. 443 (14 S. E. 708); Savannah &c. Railway Co. v. Parish, 117 Ga. 893 (45 S. E. 280); Southern Railway Co. v. Hardeman, 130 Ga. 222 (60 S. E. 539); Merchants &c. Transportation Co. v. Corcoran, 4 Ga. App. 654, 657 (62 S. E. 130). In the case last cited it was said: "The verdict of the jury can not be held to be excessive unless it be manifestly the result of prejudice, bias, or other corrupt motive.” In the present case wo can not say that this is true.

The remaining grounds of the motion for a new trial were without merit. Judgment affirmed.

All the Justices concur.