Benn v. McBride

• Decision Date: 10 November 1976
• Docket Number: No. 52711,No. 1,52711,1
• Citation: 140 Ga.App. 698,231 S.E.2d 438
• Parties: Lorenzo BENN v. Richard McBRIDE
• Court: Georgia Court of Appeals

Page 438

231 S.E.2d 438

140 Ga.App. 698

Lorenzo BENN v. Richard McBRIDE.

No. 52711.

Court of Appeals of Georgia, Division No. 1.

Nov. 10, 1976.

Rehearing Denied Dec. 8, 1976.

Saul Blau, Atlanta, for appellant.

T. Jackson Bedford, Jr., Atlanta, for appellee.

STOLZ, Judge.

The appellee sued the appellant in contract and quantum meruit to recover for enlarging the electrical system in the appellant's building. Both the substance of the oral contract and the value of the work were in issue. A jury found for the appellee in quantum meruit and found a materialman's lien to have been timely filed.

1. The appellant's first enumeration of error deals with the overruling of certain motions concerning the style of the complaint. The appellee, McBride, was engaged in a business which dealt with the appellant and was known under the trade name of Gate City Electric Co. Therefore, the original suit was styled 'Gate City Electric Co. v. Benn.' Since there had been no formal incorporation of such an entity, however, the appellee was permitted to change the style to 'Richard McBride, d/b/a Gate City Electric Co. v. Benn.' The appellant contends that both the motion to amend and the original complaint are a nullity because of the lack of a proper party plaintiff. This contention is without merit, however, as was discussed in Powell v. Ferguson Tile &c. Co., 125 Ga.App. 683(1), 188 S.E.2d 901 (1972).

2. The appellant contends that error was committed in allowing invoices of materials used on the job to be admitted in evidence as business records under Code Ann. § 38-711 (Ga.L.1952, p. 177). The appellant's apparent argument, that invoices are not included under the business records rule, is without merit. Trollinger v. Magbee Lumber Co., 132 Ga.App. 225(1), 207 S.E.2d 701 (1974); Daniel v. Dixie Plumbing Supply Co., 112 Ga.App. 427(2), 145 S.E.2d 796 (1965); Crooke v. Elliott, 96 Ga.App. 314(1), 99 S.E.2d 842 (1957).

3. Code Ann. § 67-2002(2) (Ga.L.1967, p. 456) requires as a necessary incident to the perfection of a materialman's lien that it be filed for record 'within three months after the completion of the work' or within three months after material is furnished. An issue existed in the instant case as to the validity of a lien which was filed on March 26, 1974. One of the appellee's answers to the appellant's interrogatories indicated that the last date that anyone worked on the project was November 12, 1973, a date outside of the three-month period for filing the lien. At the trial, however, the appellee testified that work was performed after the first of the year, a time properly within the period for filing the lien. The appellant objects to this testimony on the ground that the appellee was estopped from testifying as to the latter date because of his answer to the interrogatories.

This issue appears to be one of first impression in Georgia, and is not specifically covered in the Civil Practice Act. Rule 33(b), Code Ann. § 81A-133(b) (Ga.L.1966, pp. 609, 646; 1972, pp. 510, 524) states that answers to interrogatories 'may be used to the extent permitted by the rules of evidence.' Although the rules of evidence would certainly allow use of the answers to interrogatories for impeachment purposes, we are not prepared to hold that in this instance they would estop introduction of inconsistent testimony.

In construing Federal Rule of Civil Procedure 33(b), which is identical to Georgia's Rule 33(b), courts, scholars, and the Advisory Committee which drafted the federal rule have reached the same conclusion that we are reaching today. The 1970 Advisory Committee Note to Rule 33(b), 48 F.R.D. at 524, states '(T)he interrogating party will ordinarily not be entitled to rely on the unchanging character of the answers he receives and can not base prejudice on such reliance.' Wright and Miller add, 'A party may be embarrassed by his answer to a pretrial interrogatory in which he took a position different from one that he later asserts, and it is right that he should have to explain his change of position, but his answer to the interrogatory should not be a bar to taking a different position at the trial.' 8 Wright & A. Miller, Federal Practice and Procedure § 2181 at 579. See also 4A Moore's Federal Practice Para. 33.29(2). Numerous federal courts agree. Freed v. Erie Lackawanna Ry., 445 F.2d 619 (6 Cir. 1971); Victory Carriers, Inc. v. Stockton Stevedoring Co., 388 F.2d 955 (9 Cir. 1968); Giaraffa v. Moore-McCormack Lines, Inc., 270 F.Supp. 342(10, 11) (S.D.N.Y.1967); Pressley v. Boehlke, 33 F.R.D. 316, 317 (W.D.N.C.1963).

4. The appellant claims that it was error to allow a witness to state the sum total cost of items about which he testified concerning their individual costs. At trial, the appellant objected on the ground that such testimony was a mere conclusion. The appellant's objection is without merit, however, because the testimony was not based on opinion from observation, but was based on facts known to the witness. Arkansas Fuel Oil Co. v. Andrews Paint Co., 64 Ga.App. 595(1), 13 S.E.2d 738 (1943); Guaranty Life Ins. Co. v. Primo, 37 Ga.App. 472(d), 140 S.E. 780 (1927); Dyson v. Sellers, 24 Ga.App. 411, 100 S.E. 791 (1919).

5. The appellant objects to the court's allowing the admission in evidence of checks and invoices dealing with payment for labor and materials. He claims that no foundation was laid. However, their course, custody, disposition, purpose, and relationship to the issues in the case were covered by the appellee's testimony. Therefore, a sufficient foundation was laid and they are admissible in evidence. See Piggly-Wiggly Southern, Inc. v. Tucker, 139 Ga.App. 873(4), 229 S.E.2d 804.

6. During the trial, the appellee made mention of an offer by himself, which the appellant rejected, to have an independent third party appraise the value of electrical construction and to split the costs of the appraisal. The appellant contends that the court erred in refusing to strike this statement from the record as evidence of a compromise within Code § 38-408. Not only was there no evidence of a compromise (the appellee apparently did not agree to be bound by the appraiser's decision), but also the objection is not being made by the party which allegedly offered the compromise. Code § 38-408 was created in order to encourage settlements by letting a party which makes an admission or proposition with a view toward compromise rest assured that its good-faith settlement attempt will not later be used against it in court. The appellant certainly did not make an admission or proposition with a view toward compromise, and the statement is not within the ambit of the statute.

7. During the trial of the case, the following testimony was introduced by the appellee during his questioning of his witness, Edward Johnson: 'Q Did Mr. Benn ask you for an estimate on that job? A Yes. Q All right, sir. And what was the estimate you came up with looking at the job?'

The following objection was made to this evidence: 'If your honor please, that's not the proper form of the question and not proper testimony what his estimate was.' No further grounds were mentioned and no elucidation on the ground stated was made. The court overruled the objection and allowed the witness to answer. The appellant enumerates error on that ruling, claiming inter alia that a proper foundation was not laid.

This enumeration of error is meritless, however. The appellant's objection was improper and did not state a valid ground. Even though testimony may be objectionable on other grounds, it is not error to overrule an objection which is not founded on the proper grounds. Boggs v. Griffeth Bros. Tire Co., 125 Ga.App. 304(7), 187 S.E.2d 915 (1972); Ga. Power Co. v. Hendricks, 97 Ga.App. 369(1), 103 S.E.2d 601 (1958); Knudsen v. Duffee-Freeman, Inc., 95 Ga.App. 872(4), 99 S.E.2d 370 (1957).

8. The appellant contends that the court committed error in failing to admit in evidence testimony by the appellant as to bids made by other contractors for electrical system construction for his building. Testimony as to the opinions of these third parties would be hearsay, however, and thus it was not error to keep such evidence from the jury. Sullivan v. Hugly, 32 Ga. 316(1) (1861); Allen v. Carter, 119 Ga.App. 825(2), 168 S.E.2d 901 (1969).

9. The appellant claims that the court erred in refusing to force the appellee to elect between contract and quantum meruit remedies after the plaintiff-appellee rested. This contention is meritless. UIV Corp. v. Oswald, 139 Ga.App. 697, 229 S.E.2d 512 (No. 52531; decided September 28, 1976) (1976); D. H. Overmyer Co. v. Kapplin, 122 Ga.App. 51(1)...