Spielberg v. Mcentire., 105 Ga. App. 545, 125 S.E.2d 134 (1962)

Status: DECIDED

Docket Number: 39299

Parts: Action on contract. Fulton Civil Court. Before ...

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Scott, Scroggins & Cash, Frank W. Scroggins, contra.Lipshutz, Macey, Zusmann & Sikes, John M. Sikes, Jr., for plaintiff in error.

It was not error to overrule all of the defendant's demurrers and all of the grounds of his motion for new trial.

The case proceeded to a trial before a jury, which rendered a verdict for the plaintiff. In due course, defendant filed his motion for new trial and thereafter added eleven special grounds. The motion for new trial was denied.

Plaintiff excepts to the overruling of his special demurrers and of his motion for new trial.

1. Assignments of error not urged will be considered as having been abandoned. Code 6-1308. Hence, it will be necessary to consider only defendant's last group of demurrers and one ground from his second group.

2. One demurrer in the second group attacks plaintiff's allegations of bad faith as being vague and indefinite and as failing to set forth sufficient facts to constitute bad faith. It is probably true that the allegations fail to meet the standards laid down by Judge Frankum in his exhaustive opinion in Edwards-Warren Tire Co. v. Coble, 102 Ga. App. 106 (2) (115 SE2d 852) dealing with attorney's fees and expenses of litigation under Code 20-1404. However, the court specifically charged that, if the jury found for the plaintiff and further decided to award attorney's fees, their verdict for this amount should be stated separately. There was no finding of any amount for the plaintiff on the issue of attorney's fees. Thus, any error resulting from the overruling of this demurrer was harmless. Clark v. Baety, 216 Ga. 42 (3) (114 SE2d 527). These rulings dispose of all of defendant's special demurrers not included in the last group.

Southern Ry. Co., 104 Ga. App. 440, 442 (121 SE2d 915). However, the addition of a new and distinct cause of action is expressly prohibited by Code 81-1303. The test as laid down in the leading case of City of Columbus v. Anglin, 102 Ga. App. 450, 452 (116 SE2d 631) and cases cited. Assuming the doubtful proposition that this demurrant complied with the Hitchcock admonition, there is still no defect in plaintiff's allegation. Where the proper measure of damages is alleged (here, the difference in value between the house as finished and the house as it would have been if completed according to the contract, Kendrick v. White, 88 Ga. App. 128 (1) (76 SE2d 132) and cases cited; Leverett, Hall & Christopher, Georgia Procedure & Practice (1957) 2-22 at p. 38 (n. 104). The trial provided defendant's remedy here--not the appellate courts. These grounds show no error.

7. With regard to the motion for new trial, the defendant argues the general grounds together with Special Ground 11. This last ground moves for a new trial "because the verdict of the jury is so excessive as to indicate passion or prejudice." The gist of defendant's contention is that there was no evidence to support the verdict because plaintiff particularized his items of damage, as outlined in Division 5 of this opinion, and then offered only proof of the difference between the value of the house finished and the value of the house if it had been built according to the contract. As we pointed out in Division 5, plaintiff went further than he needed to go in specifying the damages and it was not error for him to prove only the proper measure of damages as set out above. The verdict of $2,500 was well within the range of the testimony and the jury was authorized to find this amount, although the verdict was not demanded. Lokey v. Malcom, 207 Ga. 314 (1) (61 SE2d 469), and cases cited. These special grounds concerned testimony that all the inside doors showed a space beneath them (Ground 1), that the fireplace was not constructed in accordance with "good or normal practice" (Ground 5), that the cost of drilling a well did not establish its market value (Ground 2) and that a witness was basing his estimate of difference in value on the cost of repairs (Ground 4). Additionally, as to Ground 2, the defendant himself brought the issue into the case on cross-examination. As to Ground 4, the cost of repair is illustrative of the difference in value claimed as damages. Small v. Lee & Bros., 93 Ga. App. 329 (4) (92 SE2d 38); Southeastern Engineering &c. Co. v. Lyda, 100 Ga. App. 208 (2) (110 SE2d 550). There was such testimony here and the photographs, although poor, were admissible for whatever weight the jury chose to give them.

11. The final ground of the motion for new trial is that the trial judge failed to require the plaintiff to speak out so that one of defendant's witnesses could identify his voice. This matter was in the discretion of the trial judge. Even if error, it was harmless as the defendant himself identified the plaintiff as the speaker at the time in question. No error appears in this ground.

12. Special Grounds 6, 9, and 10, having been expressly abandoned, need not be considered.

No error appearing either in the overruling of the defendant's special demurrers or his motion for new trial, the judgment is

Affirmed. Carlisle, P. J., and Russell, J., concur.