Ideal Pool Corporation v. Champion., 157 Ga. App. 380, 277 S.E.2d 753 (1981)
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Summary
Judgment affirmed on condition. McMurray, P. J., and Pope, J., concur.
Summary
Judgment affirmed on condition. McMurray, P. J., and Pope, J., concur.
Text
The defendant, Ideal Pool Corporation, appeals from a jury verdict for the plaintiff in an action in which it was alleged that Ideal had installed a swimming pool for the plaintiff and thereafter the vinyl liner of the pool split -- due to negligent and faulty installation.
The pool was installed in August, 1977. The split in the vinyl liner developed in January 1978, in a corner of the shallow end of the pool. Ideal patched the split after being notified. Champion was not satisfied with the extent of repair as water leakage from the split had disturbed the sandy subsurface support under the liner and he testified "it was just ridiculous to have a pool that had wrinkles and big gullies under the liner, and stretched out of shape and rocks sticking up under the liner . . ." Champion asked Ideal to replace the liner and Ideal refused but offered to install another liner and smooth out the sandy support base for $1,700. Champion hired another firm to replace the liner at a cost of $2,000, and brought this action. The jury found for the plaintiff in the amount of $2,000, and attorney fees in the amount of $2,500. The trial court denied Ideal's motion for judgment n.o.v., or a new trial. Ideal brings this appeal. Held:
1. The trial court did not err in denying defendant's motion for a directed verdict. Plaintiff alleged "the split in the vinyl liner was due to the negligent and faulty installation" by the defendant and relied upon the express warranty in the installation contract that: "The pool shall be installed in a competent and workmanlike manner . . . All workmanship and labor performed is guaranteed for a period of one year from the completed installation date; and that any defective material, resulting from faulty installation, will be repaired or replaced without charge during this one year period."
Each side presented expert testimony as to the cause of the tear in the vinyl liner. Champion's expert testified that in his opinion the pool failed because there was inadequate slack in the liner and the tear could have been avoided by allowing additional slack or by relocating the seam in a portion of the pool other than the corner. Suffice it to say, both sides offered evidence as to the cause of the failure of the liner and the jury must have accepted the plaintiff's version. As the evidence to causation of the split was in conflict, and the evidence did not demand a verdict for the defendant, and there was evidence to support the verdict for the plaintiff, the trial court did not err in denying defendant's motion for directed verdict. Curl v. First Federal Savings &c. Assn.,
2. Defendant's second enumeration is bifurcated. It is alleged the trial court erred "in granting plaintiff's pre-trial Motion in Limine and in excluding evidence in regard to plaintiff's various communications and transactions with his homeowner's insurance company." Also enumerated as error is the exclusion of "proffered testimony by deposition of . . . a representative of plaintiff's homeowner's insurance company . . ."
(a) Plaintiff's counsel informed the trial court that when plaintiff retained an attorney, "the lawyer was confronted with where [why?] the pool failed and he made claims against the [insurance] carrier and the pool company and [the] insurance company paid a portion of it to settle a doubtful claim." Plaintiff argued that "insurance is not relevant" to the issue before this court -- liability for the split in the vinyl liner of the pool. Defendant found it "very relevant . . . the only way that [the insurance company] could [,] under their policy . . . be obligated to pay. . . is if this hole in the liner was caused by vandalism." They contended that it was an admission against interest by the plaintiff -- that he instituted a claim against his homeowner insurance carrier -- for vandalism. The trial court ruled: "Generally speaking. . . it is not admissible . . . you can't just walk over and say he's already got $1,600.00 from his insurance company . . . Now if there comes a dispute as to where they say they didn't make any hole in it, then he says somebody made a hole in it . . . I'll see whether it is relevant at that time. . . If the sole purpose is to make this a case in which you would test the validity of the subrogation rule, then . . . we won't go into it at all . . . let's wait and see how it becomes relevant." Thus, the trial court did not grant plaintiff's "pre-trial Motion in Limine," but reserved ruling upon the question of insurance coverage until it became relevant.
Defendant, on cross-examination of the plaintiff -- Champion, asked: ". . . Did you ever tell anyone that the hole in your pool was caused by vandalism or act of God . . . or anything like that? A. No. Q. You never told your insurance company that? A. No. Did you file a proof of loss with your homeowner's insurance company in this case?" The answer was objected to and counsel referred to a deposition taken of the insurance adjuster when plaintiff had told him: ". . . he thought it could be caused by vandalism or defect. . ." The court ruled: "I have determined now this business of the homeowner's insurance is totally irrelevant. It is in the nature of the collateral source rule. Now if you can prove -- if you can show that he made prior inconsistent statements, then that would be grounds for impeachment, and I would so charge the Jury, but you are not going to do by indirection what you can't do directly . . . the point is the only reason we are going into this vandalism question is for purposes of credibility and not for purposes of indirectly getting in the fact that he received some money from his homeowner's insurance." Counsel was then permitted to ask Champion: ". . . did you ever tell anyone that the problems with your pool were caused either by vandalism or defect? A. Yes."
The "collateral source rule" refers generally to tort cases in which the plaintiff may receive benefits from collateral sources -- e.g. insurance, his employer, or other source, which lessens his financial loss but will not diminish the damages otherwise recoverable from the wrongdoer. Insurance Co. of N. America v. Fowler,
3. Defendant contends the trial court erred in denying its motion for directed verdict as to attorney fees and in charging the jury on this issue. We agree.
Generally, expenses of litigation -- including attorney fees, are not allowed as a part of damages unless the defendant has acted in bad faith, has been stubbornly litigious, or has caused plaintiff unnecessary trouble and expense. Code Ann. 20-1404 (Code 20-1404). This court held in Buffalo Cab Co. v. Williams,
4. The defendant's fourth enumeration avers plaintiff's requested charges -- 1 through 4, erroneously "imply that defendant did not complete the construction of plaintiff's swimming pool." The jury was fully apprised that the defendant made the initial repair of the split in the vinyl liner and refused to make further repairs except for additional compensation. The charges referred to contained statements such as: ". . . if you should find from the evidence that the defendant did not complete the installation of the swimming pool on plaintiff's property in a skillful and workmanlike manner, you would be entitled to return a verdict for the plaintiff . . ." Thus, defendant's objection is taken out of context. "The charge of the court must always be considered as a whole in determining whether a particular portion thereof amounts to harmful or reversible error." Scoggins v. Hughes,
5. It is alleged that the trial court erred in failing to give defendant's requested charges 4, 5, 6, and 14. These charges related to negligence, proximate cause, and remoteness of damages. "The failure of the court to give a requested charge in the exact language requested, where the charge given covered the same principle of law, is not a ground for a new trial." Harkness v. Harkness,
The trial court charged that damages growing out of a breach of contract must be traceable solely to the breach and capable of computation in a certain amount, and that remote or consequential damages not traceable solely to the breach would not be allowed. No instruction was given on "negligence."
Although the pleadings of the plaintiff alleged that "the split in the vinyl liner was due to the negligent and faulty installation" by the defendant -- it is clear from the other pleadings and the evidence offered during trial that the negligence complaint was based on the manner of performance of the contract as the warranty in the installation contract required "that said swimming pool was [to be), erected and installed in a competent and workmanlike manner . . . Accordingly, the charge given on "the installation of the swimming pool on Plaintiff's property in a skillful and workmanlike manner" adequately covered the issue of negligence as adjusted to the pleadings and evidence. See Adrian Housing Corp. v. Lucas,
6. The transcript reflects that the judge left the bench while the defendant's counsel was stating his objections to the charge given the jury. Assuming error, we find no prejudice to the defendant, and an appellant must show harm as well as error to require reversal of the judgment. We will consider all objections of counsel to the charge as being overruled by the trial court. Those objections he made to the charge have been disposed of adversely to the defendant in Divisions 4 and 5, supra. Accordingly, this enumeration is without substantial merit.
7. The remaining enumeration has been examined and found to be meritless.
The judgment will be affirmed on condition that the attorney fees be written off; otherwise the judgment is reversed.
Duane B. Jackson, for appellant.
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This document cites
- Supreme Court of Georgia - CURL v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF GAINESVILLE et al., 243 Ga. 842, 257 S.E.2.d 264 (1979)
- Supreme Court of Georgia - PERSONAL THRIFT PLAN OF PERRY, INC. v. GEORGIA POWER COMPANY., 242 Ga. 388, 249 S.E.2.d 72 (1978)
- Supreme Court of Georgia - SHEARER v. GRIFFIN., 233 Ga. 47, 210 S.E.2.d 5
- Supreme Court of Georgia - HARKNESS v. HARKNESS., 228 Ga. 184, 184 S.E.2.d 566 (1971)
- Georgia Court Of Appeals - Nestle Company, Inc. v. J. H. Ewing &Amp; Sons Et Al., 153 Ga. App. 328, 265 S.E.2d 61 (1979)
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