Atlanta Americana Motor Hotel Corp. v. Sika Chemical Corp.
| Decision Date | 10 April 1968 |
| Docket Number | No. 3,No. 43507,43507,3 |
| Citation | 161 S.E.2d 342,117 Ga.App. 707 |
| Parties | ATLANTA AMERICANA MOTOR HOTEL CORPORATION v. SIKA CHEMICAL CORPORATION |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1, 2. The trial judge did not err in excluding from the evidence two letters offered by the plaintiff.
3. In order to preserve issues for review by this court under the provisions of Section 17(a, b) of the Appellate Practice Act, as amended, relating to the failure to instruct the jury, nothing appearing to bring such matters under the provisions of Section 17(c) of the Act, it must appear that proper objection was made after the court instructed the jury and before the jury returned its verdict.
4. It is not error to refuse to allow one party to an action to call as an adverse witness, for the purpose of cross examination, a former employee of the other party, even though while so employed he was an agent within the sense of the term as used in Code Ann. § 38-1801. The relationship to the opposing party must exist at the time the witness is called for such examination. Whatever the ruling of the lower court, however, prejudice will not be presumed in allowing or refusing cross examination, and it is incumbent on an appellant to show some basis for harmful error.
5. The trial court properly instructed the jury on the meaning of former Code Ann. § 96-307(1) to the effect that 'use intended' refers to the use commonly intended and for which the seller manufactured the article, as distinguished from the use intended by the purchaser, even though known to the seller. 6. The remaining enumerations are without merit.
Atlanta Americana Motor Hotel Corporation sued Guaranteed Waterproofing Company and Sika Chemical Corporation the Fulton Civil Court, seeking damages for the cost of removing and replacing an allegedly unsatisfactory epoxy surface coating on the concrete driveway, entrance, ramps, and pool deck of its premises in Atlanta. The prime contract for construction of Americana's motor hotel specified the use of Sika Surface Kote, manufactured by Sika, and a one year guarantee from the party responsible for application. Guaranteed, as a subcontractor, purchased the product from Sika and applied it to the concrete surfaces in the spring of 1962. Guaranteed furnished the prime contractor with a written guarantee from leaks for one year, and agreed to repair or replace any unsatisfactory or faulty surface at no expense to the owner. The prime contractor settled with Americana, and transferred this guarantee to Americana without recourse. Americana obtained a default judgment against Guaranteed. The trial court directed a verdict in favor of Sika on the first count of the amended petition, alleging the breach of an express warranty, and the jury found in favor of Sika on the second count, alleging the breach of an implied warranty. Judgment was entered for Sika, and Americana appealed after the overruling of its motion for new trial.
Arnall, Golden & Gregory, H. Fred Gober, Atlanta, for appellant.
Huie & Harland, Harry L. Cashin, Jr., Terrill A. Parker, Atlanta, for appellee.
1. In the first enumeration Americana complains of the refusal to admit in evidence a letter purportedly written by a representative of Guaranteed to a representative of Sika, dated June 4, 1963, containing a narration of past events and statements made by various persons with respect to the problem and how to resolve it. The letter is replete with hearsay and self-serving declarations which the writer uses as a basis to blame Sika and exonerate Guaranteed, and to induce Sika to take action. Much of the content would have been inadmissible and subject to objection if offered in testimony by the writer as a witness, and the fact that it was offered as a written narration sent to a representative of the defendant does not elevate it to the status of admissible evidence. The trial judge properly excluded this letter from the evidence.
2. In the second enumeration Americana complains of the refusal to admit in evidence a letter dated October 19, 1962, purportedly from a representative of Sika to Guaranteed stating that the coating, when mixed with certain sand, had nearly the same coefficient of expansion as concrete, but somewhat greater, and suggesting that due to the brittle nature of the product flaking could occur under conditions of changing temperature. The writer informed Guaranteed that Sika recommended another product of greater elasticity for use in coating defective areas where flaking had occurred, which Sika had in production and was shipping to arrive in Atlanta during the week of October 29, 1962. Although it was brought out in the trial that Sika furnished this product to Guaranteed free of charge, there is nothing in the letter, even if the statements therein were made by authority of Sika, which constitutes an admission by Sika of the breach of any implied warranty in the product originally supplied. In essence, the letter merely shows an effort on the part of Sika to assist Guaranteed in correcting any deficiency in the original application, whatever the cause, by suggesting the use of another product, and a speculative opinion, not shown to be that of an expert, as to the possible cause of the failure of the original coating to adhere to the concrete in some places, an event which had long since take place. It in no way discloses that the product originally furnished was defective and not precisely what it purported to be, Sika Surface Kote, having certain known characteristics, as manufactured and marketed for certain uses by Sika, or that it was not the product which Americana had specified for use in its prime contract. Accordingly, we consider the letter without probative value in establishing any liability of Sika for breach of an implied warranty in supplying the coating originally used by Guaranteed. The trial judge also properly excluded this letter.
3. Americana complains in the third through the sixth enumeration of the refusal to give certain requested instructions, as to which the trial judge conducted a hearing and disclosed his 'proposed action' to reject the requests, as required under Section 17(b) of the Appellate Practice Act of 1965, as amended, but there is nothing to show a proper objection to the failure to give instructions after the court instructed the jury and before the jury returned a verdict, so as to meet the requirements of Section 17(a) of the Act as to asserted error not within the exception under Section 17(c) of the Act. See Ga.L.1965, pp. 18, 31; 1966, pp. 493, 498; Code Ann. § 70-207; Southwire Company v. Franklin Aluminum Company, 114 Ga.App. 337, 338(2), 151 S.E.2d 493; Nathan v. Duncan, 113 Ga.App. 630, 638, 149 S.E.2d 383. Nothing appears to bring the enumerations within the scope of Section 17(c) of the Act, which eliminates the necessity of an objection to instructions which show substantial error as a matter of law, explained in a recent holding of this court as 'blatantly apparent and prejudicial to the extent that it raises the question of whether the losing party has, to some extent...
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