Opinion
34937.
DECIDED APRIL 21, 1954. REHEARING DENIED JUNE 28, 1954.
Damages. Before Judge Rees. Sumter Superior Court. September 21, 1953.
H. B. Williams, for plaintiff in error.
Claude N. Morris, contra.
1. In an action for damages against a city for changing the grade of a public street adjacent to the property of the plaintiff and thus causing rain water to flow onto and over the plaintiff's land in an unnatural manner and in unusual quantities, so as to damage the same, an answer which, after generally denying liability, specifically pleads that the flow of water onto and over the plaintiff's land is not due to any act of the city, but due to the natural topography of the land, does not set up an affirmative defense which would require the court to charge specifically with respect to that defense without a request to do so.
2. The portion of the charge complained of in the third special ground of the motion for a new trial was not error for any of the reasons assigned.
3. In a case of the nature indicated in the first headnote, it is error for the court, even without a request, to fail to instruct the jury as to the manner and method of computing and arriving at the damages claimed.
DECIDED APRIL 21, 1954 — REHEARING DENIED JUNE 28, 1954.
Mrs. Juanita Sumner Brightwell (now defendant in error) filed her petition for damages against the Mayor Council of Americus (now plaintiff in error), on September 19, 1952, in the Superior Court of Sumter County, Georgia, alleging that the defendant had damaged her in the sum of $2,000. Said damages were alleged to have been caused by the flooding of the plaintiff's land with surface water from rains, which she alleged was diverted from its normal and natural channels by the negligent and careless manner in which the defendant kept, worked, and graded its streets and drives at and near the southwest corner of the intersection of Pecan and Hancock Drives, in the City of Americus, at which intersection, it was alleged, her land was located.
The remaining paragraphs of the petition (relating to the cause of her damage) contain descriptions of conditions which she alleged were caused by acts of negligence of the defendant.
The petition and summons having been served upon the defendant on September 19, 1952, the defendant filed its answer thereto within the time provided by law, denying all of the allegations of said petition, except the first and ninth paragraphs relating to jurisdiction and the giving of the requisite 30 days notice of claim, which paragraphs were admitted.
By way of defense the defendant alleged in its answer that, if any damage was done to the plaintiff as alleged in her petition, the same was caused by the natural topography of the land and not by any action of the defendant; that as a matter of fact the improvements made by the defendant were of benefit to the plaintiff's property and any damage caused by the flow of surface water was due to the fact that her lot was located in one of the lowest depressions in the City of Americus, and that a large volume of water would naturally flow on and over her lot by the natural topography of the ground.
The case proceeded to trial at the May term, 1953, of Sumter Superior Court, before the judge of said court and a jury, and the jury returned a verdict for the plaintiff on May 26, 1953, in the sum of $1,000, upon which verdict a judgment was entered in favor of the plaintiff on May 27, 1953.
The defendant filed its motion for a new trial on the general grounds, and thereafter added the following special grounds to its original motion:
1st. Because the court, in its charge to the jury, in stating the contentions of the parties failed to state the main contention of the defendant in said case.
2nd. Because the court in its charge failed to give to the jury any rules for computing the damages claimed by the plaintiff.
3rd. Because the court erred in charging the jury in the language as set forth in said ground.
To the order denying the defendant's motion for new trial as amended, entered September 21, 1953, it filed its bill of exceptions and assigned error on the denial of said motion as amended, on each and all of the grounds thereof.
1. The plaintiff in error contends that the court should have charged the jury specifically in reference to a paragraph of its answer, that the water was not caused to flow over the plaintiff's property by the grade of the street, but that, if the water did so flow, it was on account of the topography of the land, that is, the plaintiff's land was in a low place as compared with the lands about it. There is no merit in this contention, for the reason that the paragraph of the answer referred to amounted to no more than a general denial that the defendant unreasonably or unlawfully cast water on the plaintiff's property to her damage. It was not an affirmative defense, because every fact alleged in the paragraph of the answer could have been proved under the general denial that the defendant had damaged the plaintiff's property. Davison Chemical Corp. v. Hart, 68 Ga. App. 413 ( 23 S.E.2d 107); Trammell v. Atlanta Coach Co., 51 Ga. App. 705 ( 181 S.E. 315).
Moreover, the charge made it plain to the jury that in order for the plaintiff to recover it must appear that the defendant brought water from over the watershed, or divide, and unreasonably cast it on the plaintiff's property. This charge was tantamount to charging that, if by its natural flow the water ran over the property there could be no recovery; in short, it was simply a matter of saying the same thing in an affirmative or in a negative form.
2. It was not error for the court to charge: "But on the other hand, if you do find that they did gather up water from over the divide, the natural divide, rain waters that would have naturally run to other drainage, and concentrate and bring them into the watershed, the natural watershed on which plaintiff's property is located, and released them on the property of the plaintiff in an unreasonable way, or in a way that would produce damage to the property, special damage to the property, why then the plaintiff would be entitled to recover."
The court throughout its charge used the expressions watershed and divide interchangeably. The trial court properly assumed — if the charge did assume — that there were waterdivides, because as a very self-evident matter of common knowledge there are watersheds. It will be noted that the court did not assume the location of such a water divide to be at any particular place, so as to instruct the jury that the defendant would be liable if it brought the water from any special point and unreasonably cast it upon the property, in such a manner as was unreasonable and resulted in damage to the property.
The charge, given reasonable interpretation, simply instructed the jury that the defendant would be liable if it turned the rain water in a different course from where it would normally flow and this damaged the property by unreasonably casting water upon it.
3. The trial court did not give to the jury any rules for computing the damages which the plaintiff was seeking to recover of the defendant. This was error. Mayor c. of Washington v. Harris, 144 Ga. 102 (2) ( 86 S.E. 220). We are aware of several decisions to the contrary, all based upon the case of Central Railroad v. Harris, 76 Ga. 501, 512 (2), which the Supreme Court in the case of Seaboard Air Line Ry. v. Brewton, 150 Ga. 37 ( 102 S.E. 439), expressly stated it declined to follow. The Central Railroad case, and those following it in thought, hold that, in order for complaint, when made by a defendant, to be made that a charge failed to furnish a criterion in determining the amount recoverable in a damage suit, it must be coupled with a complaint that the verdict was excessive. But the rule is well established and consistently followed that, where it appears that the court has failed to instruct the jury how to arrive at the amount of damages, this in itself furnishes sufficient reason for granting a new trial to a defendant. Brown v. Wells, 161 Ga. 413 (2) ( 131 S.E. 159); City of Macon v. Douglas, 45 Ga. App. 798 (2) ( 165 S.E. 922).
The general grounds of the motion for a new trial are not passed upon, inasmuch as the case is to be tried again and the evidence upon another trial may not be the same as in this trial. For the reasons assigned, the judgment denying the motion for a new trial must be
Reversed. Felton, C. J., and Nichols, J., concur.