Atlanta Commercial Builders, Inc. v. Polinsky

• Decision Date: 22 November 1978
• Docket Number: No. 56095,56095
• Citation: Atlanta Commercial Builders, Inc. v. Polinsky, 148 Ga.App. 181, 250 S.E.2d 781 (Ga. App. 1978)
• Parties: ATLANTA COMMERCIAL BUILDERS, INC. v. POLINSKY et al.
• Court: Georgia Court of Appeals

Page 781

250 S.E.2d 781

148 Ga.App. 181

ATLANTA COMMERCIAL BUILDERS, INC. v. POLINSKY et al.

No. 56095.

Court of Appeals of Georgia.

Argued June 28, 1978.

Decided Sept. 5, 1978.

Rehearing Denied Nov. 22, 1978.

Henning, Chambers & Mabry, Peter K. Kintz, Atlanta, for appellant.

Adair, Goldthwaite & Daniel, Michael J. Reily, Atlanta, for appellees.

BANKE, Judge.

The appellees, owners of a "western-wear" store, sued the appellant to recover for damage to their inventory which resulted from a fire allegedly caused by the negligence of the appellant's employees. The damaged property (clothing, leather goods, equestrian equipment, and horse feed) was being stored in a rented house next door to a construction site on which the appellant was general contractor. The appellees charged that a group of block masons employed by the appellant left a warming fire unattended and that a spark from the fire ignited the house. The jury returned a verdict for the appellees; and the appellant filed this appeal, alleging, among other things, that there was no proper evidence from which the value of the property could be determined and that the block masons were independent contractors rather than employees of the appellant. Held :

1. The evidence as to value was sufficient to support the verdict. The appellees presented a detailed, itemized statement describing each item of the damaged property and showing its wholesale cost, the total cost being $23,113. Appellee Charles Hamilton testified that he had five years of experience buying and selling such items for the retail trade and that his normal retail markup on the items would have been 40 percent for everything except the feed, on which the markup would have been 15 to 20 percent. He stated that this markup was 5 to 15 percent below that normally charged by his competitors. He further stated that he had received approximately $600 from the sale of those goods which he had been able to salvage from the fire. The jury's verdict of $28,000 fell between the wholesale cost and the retail price as established by the evidence.

" Questions of value are peculiarly for the determination of the jury where there is any data in the evidence upon which the jury may legitimately exercise their 'own knowledge and ideas'." Dixon v. Cassels Co., 34 Ga.App. 478, 130 S.E. 75 (1925). The items involved in this case were of a relatively common nature, so that the jury was not limited to consideration of expert opinion testimony in forming its own opinion of the property's market value. See Atlantic C. L. R. Co. v. Clements, 92 Ga.App. 451, 455, 88 S.E.2d 809 (1955); Hayes v. State, 139 Ga.App. 316(1), 228 S.E.2d 585 (1976). Accordingly, even though the appellees did not offer any opinion evidence as to market value as such, the jury was authorized to make its own assessment from the evidence of both its cost and its retail value. Accord, Great American Co-Operative Fire Assn. v. Jenkins, 11 Ga.App. 784(5), 76 S.E. 159 (1912).

The failure of the appellees to offer an opinion on the fair market value of the salvaged goods does not require reversal, either. "(T)he burden of showing a salvage value is upon the defendant." 22 Am.Jur.2d 210, Damages, § 145. The appellants made no effort to show that the $600 received for the salvaged items was inadequate, and there is nothing to indicate that the sales were not bona fide and at arms length. Under these circumstances we hold that the failure to offer testimony as to the market value of the salvaged goods does not invalidate the verdict.

2. The evidence was sufficient to establish the existence of an employer-employee relationship between the appellant and the company of block masons who were found to be responsible for the fire.

"The test to be applied in determining whether the relationship of the parties under a contract for the performance of labor is that of employer and servant, or employer and independent contractor, lies in whether the contract gives, or the employer assumes, the right to control the time, manner, and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract." Fidelity & C. Co. of N. Y. v. Windham, 209 Ga. 592, 593, 74 S.E.2d 835, 837 (1953). "Where one is employed generally to perform certain services for another, and there is no specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the employer has retained the right to control the manner, method, and means of the performance of the contract, and that the employee is not an independent contractor." Mitchem v. Shearman Concrete Pipe Co., 45 Ga.App. 809(1), 165 S.E. 889 (1932). See Moon v. Ga. Power Co., 127 Ga.App. 524(1), 526, 194 S.E.2d 348 (197...