Opinion
39831.
DECIDED NOVEMBER 29, 1962. REHEARING DENIED DECEMBER 12, 1962.
Action for damages. Lee Superior Court. Before Judge Marshall.
Thad W. Gibson, for plaintiff in error.
Perry, Walters Langstaff, Jesse W. Walters, contra.
There being no proof, direct or circumstantial, of essential allegations of the petition, it was not error to grant a nonsuit and, ergo, the denial of motion to reinstate the case was proper.
DECIDED NOVEMBER 29, 1962 — REHEARING DENIED DECEMBER 12, 1962.
Plaintiff (plaintiff in error) sued for the death of some cows that died from licking cotton poison found in a pile of trash located about one-half mile from the public road in a woodland pasture leased by plaintiff in January, 1961. The defendants had previously leased the property but their lease had expired during 1957.
The petition alleged that the poison was placed there by one of defendants' agents acting in the scope of his employment between 1957 and March 20, 1961.
The court granted a nonsuit and subsequently denied plaintiff's motion to reinstate the case.
Defendants' primary contentions are that the plaintiff's proof failed in the two particulars of who placed the poisonous material in the field and when it was so placed.
1. As to the when of the placement, the burden of defendants' argument is that it is up to the plaintiff to show that the poison was placed in the field within four years prior to the date the cattle became sick (i.e., within four years prior to March, 1961, when the cows died from the poisoning). Reduced to its simplest terms, the contention is that a plaintiff must prove that a defendant's negligence occurred within the period of statutory limitation.
The ingenious attempt of defendants to raise the question of the statute of limitation without a plea in bar to that effect cannot succeed. We find it unnecessary to decide when the statute began to run because the bar of the statute cannot be considered unless pled where it does not appear on the face of the petition. Parker v. Irvin, 47 Ga. 405 (1); Hunnicutt v. Archer, 163 Ga. 868 (1a) ( 137 S.E. 253); Burch v. Wofford-Terrell Co., 52 Ga. App. 685 (1) ( 184 S.E. 419) and citations; Leverett, Hall Christopher, Ga. Procedure and Practice, § 29-23, p. 786, fn. 229.
Furthermore, there is probably sufficient testimony with regard to a certain newspaper one of the witnesses saw at the pile to present a jury issue as to whether the trash pile was placed there within the time alleged.
2. As to who placed the poison in the pasture, a somewhat different question is presented. In attempting to connect defendants with the trash pile, plaintiff primarily relies on various versions of what was said by the defendants' overseer and general manager, one Dinkins, about the trash. Dinkins allegedly admitted that certain items in the trash pile came from the defendants' farm (a settee, a chicken feeder and some batteries) and that at least some of the trash had been carried there by one of defendants' employees when he had cleared out a shed on the farm.
Dinkins denied portions of these alleged admissions but it is our duty here to construe the evidence and inferences from it most strongly in favor of the plaintiff. McDougal v. Johnson, 104 Ga. App. 233 ( 121 S.E.2d 417) and citations.
However, even so construing the evidence, we find that the versions of Dinkins' remarks testified to by plaintiff himself is that Dinkins denied any knowledge of the poison and denied that it came from the defendants' farm, or that any had been kept in any shed or building on the farm. Thus plaintiff has failed to prove that the poison was placed there by defendants' agent.
"Whether there be any evidence is a question for the judges, whether sufficient evidence is a question for the jury." Company of Carpenters v. Hayward, (K.B.) 1 Doug. 375, approved by Judge Powell in Georgia R. c. Co. v. Harris, 1 Ga. App. 714 ( 57 S.E. 1076), where he further asserted: "When the party upon whom the burden of an issue rests seeks to carry it, not by direct proof, but by inferences, he has not, in this reasonable sense, submitted any evidence for a jury's decision, until the circumstances he places in proof tend in some proximate degree to establish the conclusion he claims; and for this, the facts shown must not only reasonably support that conclusion, but also render less probable all inconsistent conclusions." We have read and re-read the evidence but can not find in it proof of circumstances that tend to establish that the poison was moved from the farm of the defendants, by the defendants or their agents, to the plaintiff's pasture, nor does the proof submitted render less probable a conclusion that it may have been placed there by some other person.
The allegations of the petition being unsupported by either direct or circumstantial evidence, a nonsuit was properly granted. Gaston v. Engine Service c. Co., 103 Ga. App. 94 ( 118 S.E.2d 590) and citations; Adams Bros. Contractors, Inc. v. Seaboard Surety Co., 104 Ga. App. 492 ( 122 S.E.2d 122). This being the case, the court did not commit error in denying the motion to reinstate.
Judgment affirmed. Carlisle, P. J., and Russell, J., concur.