Augusta Roofing & Metal Works, Inc. v. Clemmons

CourtUnited States Court of Appeals (Georgia)
Citation103 S.E.2d 583,97 Ga.App. 576
Decision Date02 May 1958
Docket NumberNo. 37123,No. 1,37123,1
PartiesAUGUSTA ROOFING & METAL WORKS, Inc., v. CLEMMONS et al

Syllabus by the Court

1. Where no final ruling as to the admissibility of evidence is invoked in the

trial court no question for decision is presented to the reviewing court.

2. The evidence adduced on the trial of the case damanded a finding for the defendant, and the trial court erred in overruling the defendant's motion for new trial.

3. The movant's contention, that it is entitled to a new trial because of newly discovered evidence, will not be passed on where the judgment of the trial court denying the motion for new trial is reversed on other grounds.

Mr. and Mrs. J. A. Clemmons brought an action against Augusta Roofing & Metal Works, Inc. for damages allegedly caused by the negligent installation of a roof on a 'family room' an addition to their home in Augusta, Georgia. It was alleged that the defendant, its agents and employees were negligent '(a) In permitting a hole to remain in said roof where it joins the remaining portion of the house. (b) In negligently allowing holes to remain in the approximate center of the roof. (c) In failing to inspect said roof after they had finished as said poor workmanship was obvious.' The plaintiffs prayed for a judgment in the amount of an itemized statement of the necessary repairs caused by the alleged negligence of the defendant. The defendant denied that it had installed the roof for the plaintiffs but admitted that it had installed the roof in question for a contractor who was building the 'family room' for the plaintiffs. No demurrers, either general or special, appear from the record to have been filed and on the trial of the case before the trial court without the intervention of a jury a judgment for the plaintiffs was rendered, but in a lesser amount than that prayed for. The defendant filed a motion for new trial on the usual general grounds which it later amended so as to assign error on the admission evidence and so as to pray for a new trial on 'newly discovered evidence.' The motion for new trial as amended was denied and it is to this judgment that the defendant excepts.

Congdon & Leonard, Lynn R. Leonard, Augusta, for plaintiff in error.

Harris, Chance & McCracken, Otis W. Harrison, Augusta, for defendants in error.

NICHOLS, Judge.

1. On the trial of the case the defendant objected to testimony by Mrs. Clemmons which it contended was hearsay. The court ruled that the evidence should be connected up and no further objection, and apparently no further ruling, was made. No final ruling was made by the trial court as to the admission of the evidence. It is well settled that where an objection is made to the admission of testimony and the trial judge makes no definite ruling on its admissibility but defers his ruling, before the reviewing court will consider whether such objection should have been sustained a further ruling by the trial court must be invoked. Cawthon v. State, 119 Ga. 395(7), 46 S.E. 897; American Agricultural Chemical Co. v. Rhodes, 139 Ga. 495(8), 77 S.E. 582; Mitchell v. State, 152 Ga. 375(9), 109 S.E. 357; Sutton v. Ford, 155 Ga. 863(3), 118 S.E. 747; Mullis v. State, 197 Ga. 550(2), 30 S.E.2d 99; Quinn v. State, 22 Ga.App. 632(2), 97 S.E. 84.

On the trial of a case before a judge without the intervention of a jury the rules as to the admission of evidence are less strict. Ward v. State, 26 Ga.App. 61, 105 S.E. 373; Camp v. Mapp, 95 Ga.App. 262, 97 S.E.2d 623; Burton v. Campbell Coal Co., 95 Ga.App. 338, 340, 97 S.E.2d 924. Therefore, assuming, but not here deciding, that the evidence was without probative value, if the judgment was otherwise supported by competent evidence, since the case was tried before a trial court without the intervention of a jury, no harmful error is shown by this ground of the amended motion for new trial.

2. On the trial the plaintiffs introduced evidence that the roof was installed by the defendant corporation for them, that later leaks in the roof were noticed, that the defendant made repairs to the roof on the 'family room,' that it still leaked after the repairs were made, that the cost of repairing the damage caused by the leaking roof would cost more than the amount of the judgment rendered for them, and that the 'carpenter' who had built the 'family room' for them did not go onto the roof when he inspected it immediately after it was installed.

The defendant introduced evidence to the effect that it had contracted with the prime contractor (the carpenter referred to...

To continue reading

Request your trial
15 cases
  • Butts v. Davis, 47045
    • United States
    • Georgia Court of Appeals
    • May 16, 1972
    ...of evidence is invoked in the trial court no question for decision is presented to the reviewing court.' Augusta Roofing & Metal Works v. Clemmons, 97 Ga.App. 576(1), 103 S.E.2d 583. 7. There are four enumerations of error (Nos. 12, 13, 14, and 20) in which appellant argues his right of cro......
  • Lynn v. Lowndes Cnty. Health Servs., LLC.
    • United States
    • Georgia Court of Appeals
    • March 9, 2020
    ...arbitration agreement. To support this argument, Lowndes County relies on our previous decisions in Augusta Roofing & Metal Works, Inc. v. Clemmons , 97 Ga. App. 576, 103 S.E.2d 583 (1958), Stone v. First Nat. Bank of Atlanta , 159 Ga. App. 812, 285 S.E.2d 207 (1981), and Salters v. Pugmire......
  • Flowers v. Slash Pine Elec. Membership Corp., 45141
    • United States
    • Georgia Court of Appeals
    • June 30, 1970
    ...of the evidence is invoked in the trial court, no question for decision is presented to the reviewing court. Augusta Roofing & Works v. Clemmons, 97 Ga.App. 576(1), 103 S.E.2d 583, State Hwy. Dept. v. Harrison, 115 Ga.App. 349(4), 154 S.E.2d 723. The same is true as to remarks of counsel as......
  • State Highway Dept. v. Harrison
    • United States
    • Georgia Court of Appeals
    • February 22, 1967
    ...evidence is invoked in the trial court, no question for decision is presented to the reviewing court. Augusta Roofing & Metal Works, Inc. v. Clemmons, 97 Ga.App. 576(1), 103 S.E.2d 583. Also where it appears the objecting party elicited similar evidence on cross examination, the error, if a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT