Opinion
33911.
DECIDED MAY 21, 1952.
Attachment; from Marion Superior Court — Judge Fort. October 12, 1951.
O. S. Singleton, R. S. Wimberly, for plaintiff in error.
Joseph M. Rogers, contra.
The plaintiff's declaration in attachment, as amended, was not duplicitous in that it contained in one count several separate and distinct causes of action, and the court erred in sustaining the special demurrers thereto and in dismissing the declaration as a whole.
DECIDED MAY 21, 1952.
J. W. Gloss sued out an attachment before a justice of the peace of Marion County, returnable to the superior court thereof, against Mrs. Geneva Jacobs, as trustee and individually, and against E. P. Jacobs Sr. and E. P. Jacobs Jr., individually, and as the Jacobs Lumber Company. It appeared that the defendants were non-residents and jurisdiction was acquired by this attachment, which was levied upon lands of the defendants and a certain sawmill, and to which they appeared; and pleaded. The plaintiff set up in his declaration that the defendants had injured and damaged him in the total sum of $4900 ($4400?); that the defendant Mrs. Jacobs had conveyed to him three certain tracts of land by warranty deeds, reserving as to one of the tracts "all the standing pine and hardwood timber" for a period of 18 months from date of the deed, and as to the other two tracts reserving "all standing hardwood and pine timber" for three years; that the defendants "E. P. Jacobs Sr. and E. P. Jacobs Jr., individually and together with Mrs. Geneva Jacobs, as the Jacobs Lumber Company and as agents and servants of the defendant, Mrs. Geneva Jacobs, as trustee, and in their own behalf and behoof, and for her interests and profits as well as their own interests and profits, came upon the lands above described . . and did set up a sawmill for the purpose of cutting and sawing the pine and hardwood timber on said lands of sufficient diameter to be legally sawed into lumber"; that, while the warranty deeds from the defendants Mrs. Jacobs "provided for the cutting of the pine and hardwood timber on said lands by the grantor therein, the defendant, Mrs. Geneva Jacobs, as trustee," the other said named defendants "entered upon petitioner's lands without his consent and without his knowledge, and did set up said sawmill and did begin the cutting and sawing of said timber, and when discovered by petitioner were actually engaged in the operation of said sawmill"; that the defendant West Smith is the active manager of said mill for the other defendants; that the trees were cut and brought to the mill and sawed into lumber; that the plaintiff gave to the defendants, except to Mrs. Jacobs, no authority to enter into his lands and cut therefrom the timber; that the defendants E. P. Jacobs Sr. and E. P. Jacobs Jr. composed said partnership and the defendant Mrs. Jacobs, "as trustee or otherwise," derives benefit and profit from the partnership and is actually a member thereof, and all three defendants are working together for their common benefit and profit; that the plaintiff gave to the defendants E. P. Jacobs Sr. and E. P. Jacobs Jr. no authority to enter upon his lands and cut and saw the timber thereon into lumber, and the defendant Mrs. Jacobs did not seek his permission for them so to do; that the agreement was only with Mrs. Jacobs to enter upon the land and only to cut and remove the hardwood and pine timber; that the defendants have by their wrongful, careless, and negligent acts, set forth in the declaration, injured the plaintiff's lands and damaged him in the sum sued for, in the following particulars and manner; that, in cutting and felling the timber for transporting same to the sawmill, the defendants cut the small timber and broke and destroyed the small trees and other trees, damaging the plaintiff in the amount of $1250; that in so doing the defendants knowingly felled, cut, and sawed on said lands the undersized trees to his injury and damage in the sum of $1250; that they permitted fires to start on the plaintiff's land and in the timber, thereby destroying and injuring the trees on some 200 acres and damaging the freehold, to his injury and damage in the sum of $500; that the defendants permitted brush and treetops to accumulate and carelessly and negligently permitted same to catch fire and burn, without regard to the damage being done to the plaintiff's remaining trees and the lightwood thereon; and the defendants used 16 wheeler army trucks in conveying the cut and felled trees and the lumber and operated the same with careless and reckless abandon indiscriminately over the plaintiff's lands and through his remaining timber, thereby damaging the younger trees and injuring the freehold; that the defendants, in the transportation of the cut and felled timber to the mill and in the transportation of the sawed lumber from his lands, did drive these trucks indiscriminately over and upon his lands without making any road and without attempting to use any particular route over and through the plaintiff's lands, to the plaintiff's injury and damage in the sum of $1500, and did thereby wrongfully and without regard to the plaintiff's rights injure and damage his farm and cleared land, cutting up the fields, causing washes in said fields and lands, injuring his land, and did maliciously cut the small trees; and that the defendants permitted fires to start on said lands, and did so maliciously and with a desire to injure the plaintiff and his lands. The plaintiff set up that the defendants acted maliciously and with reckless abandon, knowingly intending to injure and damage the plaintiff by their trespasses and the manner in which they committed the same. He further set up that it was usual and customary in that locality for any person having timber to be cut and sawed or holding a lease on timber for that purpose to contract with the owner and operator of a sawmill to have the sawing done, or else to transfer the lease to the mill operator, and if the defendant Mrs. Jacobs, who alone had the right to cut the timber on the lands of the plaintiff has contracted with the other defendants, her husband and son, E. P. Jacobs Sr. and E. P. Jacobs Jr., individually, or as the Jacobs Lumber Company, to cut and saw the timber on the plaintiff's lands, the plaintiff has given no authority for them to enter upon his lands and cut said timber.
The defendants on May 2, 1948, demurred generally to said declaration and specially to same as a whole and as to various paragraphs thereof.
The plaintiff by amendment added, on October 12, 1951, a second count to his declaration, which as amended alleged that the damages were $5400 instead of $4900, and also alleged facts showing that the value of his lands was diminished by the negligent and wrongful acts of the defendants, and that the lightwood destroyed amounted to $500. By his amendment adding count two, he set up that the "defendants have wilfully and wantonly in reckless disregard of the rights of the petitioner, injured and damaged him in the sum of $5400" by reason of the facts therein set up. In this count the plaintiff made further allegations as to the items of damage resulting from the wrongful and negligent conduct of the defendants in the cutting, transporting, and sawing of said timber, and in the manner in which they did same and permitted same to be done, thereby causing said fires, and his lands to be injured by the wanton and reckless disregard of the plaintiff's rights. The plaintiff's declaration as amended set up a wrongful entry by two of the defendants and an aiding and abetting therein by the other defendant, and that the plaintiff's damages and injury to his lands resulted from this alleged wrongful trespass, and also alleged in the amendment that the same was wilful and wanton on the part of the defendants. In the amendment the plaintiff sets up: that some 5000 small trees were destroyed by the reckless, wilful, and wanton disregard of the defendants, damaging him in the sum of $1250; that the defendants by their wilful and wanton negligence permitted said fires to destroy timber and to damage his freehold in 200 acres of his land, damaging him in the sum of $2000, same being worth $3000 prior thereto and $1000 thereafter; that the defendants, in using said heavy army trucks in hauling said trees and said lumber on and from his lands, permitted same to cut up his lands in the manner in which they were operated, causing 50 acres to be ruined and eroded, and set up that same was worth $40 an acre prior thereto and worth only $7 an acre thereafter, injuring him in the sum of $1650, the defendants not making any effort to follow any roads but driving indiscriminately over his lands, destroying small trees, and causing washes and erosion.
The defendants demurred to the declaration as amended. They demurred to counts one and two as being duplicitous and contradictory. In special grounds 4 and 5 of this demurrer, the defendants specially demurred to count two on the ground that it does not plainly and distinctly set forth the plaintiff's ground of complaint, if any he has, in that the allegations of the petition are duplicitous, uncertain, and indefinite since they join in one count more than one set of facts, each constituting a separate and distinct demand of the plaintiff against the defendants, each of which if proved would authorize a separate recovery, namely: (a) damages resulting from wilful and wanton destruction of approximately 5000 small trees as charged; (b) damages resulting from alleged fire damage by burning over 200 acres of petitioner's woodland as charged; (c) damages resulting from alleged reckless and wanton misconduct in the operation by the defendants of trucks over the lands of the plaintiff; (d) damages for alleged destruction of 20 cords of lightwood, being personal property. They demurred to count one because the allegations "are duplicitous, uncertain, and indefinite in that they join in one count more than one set of facts, . . Constituting separate and distinct demands of the plaintiff against the defendants, each of which if proved would authorize a separate recovery," setting out a, b, c, and d above.
There is no order in the record on the demurrers, general and special to count one or to the original declaration. The order appearing in the record and excepted to here is that the special demurrers of the defendants to the declaration as amended have been met by amendment; and that "the two remaining grounds of such special demurrer as are set out in paragraphs numbered 4 and 5 thereof, the plaintiff having failed to amend or to offer to amend to meet the same, it appears that a ruling thereon is required, and it is ordered, considered and adjudged that such last-mentioned two grounds of said special demurrer be and the same are hereby sustained, and said petition dismissed as a whole." The court amended this order to show that the case was not dismissed as to the defendant West Smith. To the above order and judgment the plaintiff excepts.
The only question before this court is, did the court err in dismissing the plaintiff's declaration as amended because the same was duplicitous in that it contained in one count more than one cause of action? Whether the declaration otherwise sets forth a cause of action or whether any of the other grounds of special demurrer are well taken is not up for consideration. The court dismissed the petition because the plaintiff's declaration as amended showed separate and distinct causes of action. This is true, it is contended, because in one count damages are sought for the alleged wilful and wanton destruction by the defendants of approximately 5000 small trees; damages resulting from fire burning over 200 acres of plaintiff's woodland; damages caused by alleged recklessness and wanton operation by the defendant of the trucks over his lands, in transporting the trees to the mill and the lumber from the mill, destroying small trees and causing washes and soil erosion; and damages for 20 cords of lightwood burned by the fires alleged to have been wrongfully caused by the defendants.
Considering the plaintiff's declaration as amended to be otherwise good against general demurrer, the same boiled down and properly construed sets up trespass on the plaintiff's lands. wrongful entry thereon, and wrongful acts in so trespassing. All the damages claimed by the plaintiff appear to have flowed from this trespass, which continued for some time. The case is one ex delicto and the damages claimed are in tort. "A tort is the unlawful violation of a private legal right . . by reason of which some special damage accrues to the individual." Code, § 105-101. It is elementary that such damage may consist of several items caused by the general wrong or tort, for example, pain and suffering, loss of earning capacity, and medical expenses, resulting from and caused by the negligence of a defendant in causing an injury to the person of another. Here the wrong alleged is a trespass on the plaintiff's lands by the defendants and the acts committed by them in carrying out this trespass. "The right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie." Code, § 105-1401. Entering wrongfully and cutting timber from the land would be a trespass. And this is so whether the trespassers are acting for themselves or as agents for another. See Baker v. Davis, 127 Ga. 649 ( 57 S.E. 62). Both the principal and the agents would be liable in a proper case. Here the trespass is a continuing one, and the plaintiff is entitled to the damages accruing therefrom to the time of the suit. Code, § 105-1406. The damages alleged here are special damages all flowing from the trespass and must be proved, and it was proper to allege the same distinctly. See Code, § 105-2006.
The plaintiff's declaration as amended showed a legal right in the plaintiff to the lands involved and to all the timber thereon, with the exception of the right in the defendant, Mrs. Jacobs, to cut and remove only the hardwood and pine timber therein for certain periods of time as to each tract. It also showed that the plaintiff's damage resulted from a violation by this defendant and the other defendants of this legal right, acting in excess thereof and wrongfully cutting the timber and placing a mill thereon without authority; and the same constitutes a trespass, which is continuing, resulting in damage to the lands of the plaintiff and the trees growing thereon and the wood thereon. There is but one wrong, one cause of action set out. One of the tests in determining whether there is more than one cause of action set out in a state of facts is whether there is but one wrong or more than one wrong committed. Where the declaration shows but one wrong, the petition would not be subject to the objection that there is more than one cause of action alleged. Here the plaintiff alleges that he owned certain lands, which the defendants damaged in the cutting, sawing, and manner of removing of the trees which the defendant Mrs. Jacobs had purchased. The trespass consisted of coming on the land and improperly exercising the right to cut the timber, by placing a sawmill thereon and improperly cutting, removing, and transporting such timber and the lumber sawed, and in the improper doing of which the fire destroying some of the timber was caused. It is alleged that in the cutting, sawing, and removing of this timber the defendants damaged the realty of the plaintiff in that they cut therefrom trees too small to be used for lumber, caused forest fires, which destroyed small trees and lightwood to the plaintiff's damage, driving hither and thither with their heavy trucks in moving the felled trees, damaged the land by running over and injuring small trees, and cutting up the land so as to cause a part of the same to wash. The wrong sued for is the trespass or invasion of the plaintiff's right of property in this land, caused when the defendants cut and removed the timber, and there is no separate cause of action alleged for the cutting of the small trees, the permitting of the brush to pile up and accumulate by the improper cutting, causing forest fires, the running over and injuring of the small trees, and the cutting up of the fields and land by the vehicles used to transport the timber and the lumber. All grew out of the same wrong, the wrongful entry of the defendants and operation of the mill thereon, and the cutting and removing of the timber and lumber, incidental thereto, all to the damage of the plaintiff in the various ways alleged.
This court is of the opinion that the declaration, as amended, sets forth as to each count but one wrong, causing several items of damage to the plaintiff for which he sues and which he particularly sets out. The declaration contained a single cause of action in tort and several items of damages growing out of the same wrong or tort. See Copeland v. Carpenter, 203 Ga. 18 ( 45 S.E.2d 197); Kelly v. McCoy, 85 Ga. App. 514 ( 69 S.E.2d 652). Several items of damage which grow out of the single wrong set up, and on which the plaintiff seeks to recover, do not show an improper joinder of causes of action or duplicity for joining more than one cause in one count. See McDonald v. Butler, 10 Ga. App. 845, 850 (5) ( 74 S.E. 573). All the damages claimed by the plaintiff resulted from the trespass committed, which was a continuing one, and which the plaintiff was entitled to plead, and the declaration was not subject to the special demurrers sustained. Scott v. Reynolds, 70 Ga. App. 545 ( 29 S.E.2d 88). The damages caused by the fire were recoverable. See Western A. R. Co. v. Tate, 129 Ga. 526 ( 59 S.E. 266). The declaration as amended was not subject to dismissal because the plaintiff set up the destruction of the lightwood and damages therefor.
We have carefully read and examined the authorities cited by the defendants in error to the effect that a petition which sets out in the same count two distinct causes of action is duplicitous and is subject to attack by special demurrer therefor, and the same are not controlling here. Gainesville c. Ry. Co. v. Austin, 122 Ga. 823 ( 50 S.E. 983); Harris v. Wilcox, 7 Ga. App. 121 ( 66 S.E. 380); Hillside Cotton Mills v. Ellis, 23 Ga. App. 45 ( 97 S.E. 459); Groover v. Savannah Bank Trust Co., 186 Ga. 476 ( 198 S.E. 217). We do not consider these authorities controlling here.
It follows that the trial judge erred in dismissing the plaintiff's declaration as amended on the grounds of special demurrer that the same was duplicitous in that several separate and distinct causes of action were set forth in one count.
Judgment reversed. Townsend and Carlisle, JJ., concur.