Archer v. Gwinnett County

• Decision Date: 24 September 1964
• Docket Number: No. 40919,No. 2,40919,2
• Citation: Archer v. Gwinnett County, 138 S.E.2d 895, 110 Ga.App. 442 (Ga. App. 1964)
• Parties: Weldon B. ARCHER et al. v. GWINNETT COUNTY
• Court: Georgia Court of Appeals

Page 895

138 S.E.2d 895

110 Ga.App. 442

Weldon B. ARCHER et al. v. GWINNETT COUNTY.

No. 40919.

Court of Appeals of Georgia, Division No. 2.

Sept. 24, 1964.

Rehearing Denied Oct. 9, 1964.

Syllabus by the Court

1. Where defendants are jointly represented by one or more firms of attorneys it is proper for the trial court to restrict the making of objections to testimony, motions, and like procedural matters to one counsel to be chosen from among them. If the defendants are not jointly represented by counsel, but two or more firms are separately representing separate defendants so that such a ruling would be an abridgement of the right of one or more defendants, this should be called to the court's attention at the time; otherwise, the objection is waived.

2. Since a conspiracy to do an unlawful or fraudulent act is frequently not susceptible of direct proof, it may be inferred from the acts, declarations and conduct of the co-conspirators together with other circumstances in the case. Declarations of intent on the part of the persons involved immediately prior to an overt act are not rendered inadmissible because of the time element involved, if it appears that the fraud was at that time in the planning stage and that it was later effectuated.

3. When on cross examination an admission is elicited from a witness with a view to laying the foundation for impeaching his credibility, the other party has the right to bring out the whole of the transaction so far as it is pertinent without reference to whether other parties thereto may also be parties to the current litigation.

4. There was no error in the instructions to the jury relating to the law of conspiracy.

5. The evidence was ample to authorize the jury to find that a conspiracy to give and receive illegal rebates on county work existed among the defendants. This being true, it was proper to allow testimony as to statements and admissions of individual defendants pending the transaction, nor was it an expression of opinion on the part of the trial court, in ruling on the admissibility of such evidence, to state that he was admitting it because 'a prima facie conspiracy may have been made out by the evidence,' the language being clearly necessary to the ruling invoked.

Gwinnett County sued Archer, Cain, and Dover, three former county commissioners, Vinson and Company, Inc., an engineering firm, and its president G. Robert Vinson, alleging that the defendant commissioners conspired and colluded with the corporation and its president to establish a water system for Gwinnett County at an excessive and exorbitant rate of compensation in exchange for the promise of the other defendants to pay each of the commissioners the sum of $10,000; that pursuant to the unlawful agreement a contract was entered into on January 3, 1955, to pay Vinson and Company $500 per month plus 6% of the construction cost, when a reasonable fee for the services set out would have been not over 5%; that in December, 1955, because of dissatisfaction with Vinson and Company's performance certain citizens of the county initiated action to obtain an injunction, as a result of which Vinson and Company withdrew from the inspection and supervision of the construction of the system and another engineering firm was employed which completed the project; that as a result of the misconduct of the defendants the plaintiff was forced to spend $377,042 in the construction of the project when a reasonable total cost would have been $262,517. The county sought to recover the difference between these sums plus punitive damages. The jury returned a verdict of $88,266.40. The defendants filed a joint motion for a new trial, the denial of which is assigned as error.

Henderson & Pope, Canton, Merritt & Pruitt, Buford, James M. Roberts, Atlanta, R. F. Duncan, Lawrenceville, for plaintiffs in error.

Edward S. White, Allen E. Lockerman, Atlanta, Dudley S. Hancock, Norcross, for defendant in error.

NICHOLS, Presiding Judge.

1. One motion for a new trial was made on behalf of all the defendants; one bill of exceptions was sued out to this court; one brief was filed, signed by all the attorneys involved on behalf of the plaintiffs in error generally. Likewise, on the trial of the case, as stated by the trial judge in a note referring to the first special ground of the motion: 'As the trial began, at the counsel table for the defendants were Messrs. Albert Henderson, Mation Pope, J. Ray Merritt and G. C. Pruitt, and possibly Judge John S. Wood. Mr. Albert Henderson was conducting the examination and cross examination of witnesses for the defendants. As the trial proceeded objections to testimony were made at different times by Mr. Henderson, Mr. Merritt and Mr. Pruitt. Thereafter, upon a statement made by Mr. Pruitt as follows: 'If the Court please, at this time we'd like to interpose an objection to that * * *' the court made the following ruling [on which error is assigned]: 'Now, gentlemen, I'm going to have to draw a rule right now, I'm going to have to have one counsel from the defense table making objections' * * *. The court was never advised at any stage of the trial and did not know that defendants Vinson and Vinson & Co., Inc. were represented solely by Messrs. J. Ray Merritt and G. C. Pruitt, nor was such contention ever brought to the attention of the court.' Counsel failed to inform the trial court that two law firms were representing two groups of defendants separately rather than both groups jointly. Nor would an inspection of their records have helped him; the answer of the county commissioners was signed only by Hon. John S. Wood, who apparently took no active part in the trial, and the answer of Vinson and Vinson & Co. was signed by Vinson in propria persona. 'Except as to matters of appellate procedure, the appellate courts are without jurisdiction to pass on a question concerning which the ruling of the trial judge was not invoked.' Durham v. Pitts, 101 Ga.App. 437, 438 (114 S.E.2d 217, 219). Since the court was not made aware that the limitation would result in any defendant or defendants being denied proper representation at the counsel table, the issue was not raised there and can not be considered here.

2. The testimony of Robert Matson, chief witness for the plaintiff, was the subject of a motion to strike as well as of certain specific objections. Its substance, with the matter particularly objected to italicized, is as follows: Matson, a sales engineer, first learned in 1953 that the commissioners were interested in establishing a water system for Gwinnett County. He personally discussed this subject with them on 15 or 20 occasions, one, two or all being present at various times over a period of two and a half or three years; it was clearly brought out in these discussions that the advent of water was a necessity for county growth in the environs of metropolitan Atlanta; the witness was familiar with the general pattern of such public utility projects because he was calling on other municipalities engaged in installing water systems; the various steps and procedures were discussed at these meetings such as engagement of an engineering concern for the preliminary planning and methods of financing the project; all of these activities must seed out of the concern who gains the engineering contract for designing and overseeing the construction of the project; there was no misunderstanding as to what the personal intentions of the defendant commissioners were; they had a personal interest; they expressed themselves as feeling that they gave much of their time for little compensation in the form of salaries; they asked what amount of money project of this kind could stand 'and the statement was made in such a direct manner as to how much the Commissioners they themselves could expect to gain out of these funds in the construction of this project'; Archer, Cain and Dover were present at the time of this statement; the figure of 10% was mentioned by Mr. Archer; the witness advised him that such a sum of money was foolish and it would be almost impossible to get the project built with anything above five percent allotted to the 'kickback'; he told them the easiest and safest way would be a kickback from the contractor himself; Messrs. Archer and Cain mentioned as their goal from the job a figure of a half million dollars; the witness was asked to find an engineer that would be suitable to the defendants for this project and this assignment was made 'in the presence of more than one of the commissioners', probably Messrs. Archer and Dover; witness at first contacted several reputable firms but 'they didn't want the kind that I had sent them previously; they wanted somebody of a different character and the basic understanding of their problems and what they sought and desired from the job'; witness was informed by Archer in no uncertain terms that they wanted an engineer whose morals and ethics would permit the money that they sought personally from project; witness then visited Howard Barry, a contractor at Warner Robins and following a discussion Barry put in a call to the defendant Vinson in Atlanta in the witness' presence; the witness was introduced to Vinson by Barry and an appointment made which he later filled to talk to Vinson about the Gwinnett County water project; Mr. Barry had already made it clear to Vinson what kind of engineer the county commissioners were looking for; after his meeting with Vinson the witness reported back to Archer, after attempting to make the report to Dover and being informed by him that the handling of the engineer was being left to Archer by Dover and Cain; he gave Archer Vinson's qualifications by referring to work done elsewhere where payments had been made to other political individuals who were responsible for projects Vinson had been engineer on; Vinson and Company was later employed as the engineer for the job; Vinson later told the...