Bullard v. Ewing

• Decision Date: 10 April 1981
• Docket Number: No. 61544,61544
• Citation: 279 S.E.2d 737,158 Ga.App. 287
• Parties: BULLARD v. EWING et al.
• Court: Georgia Court of Appeals

Page 737

279 S.E.2d 737

158 Ga.App. 287

BULLARD v. EWING et al.

No. 61544.

Court of Appeals of Georgia.

April 10, 1981.

Robin K. Warren, Decatur, for appellant.

Leon L. Campbell, Chamblee, Dennis J. Webb, Atlanta, for appellees.

QUILLIAN, Chief Judge.

The plaintiff brought a complaint in three counts against the defendants Allstate Insurance Company, Edward Darnell, and H. A. Ewing, d/b/a Ewing & Son Construction Company. The first count set out that the defendant Allstate insured the plaintiff's home against loss by fire; that the policy contained a provision that the defendant Allstate retained the option to repair, rebuild or replace property destroyed or damaged by fire in lieu of making a payment to the plaintiff to compensate for damage or destruction to the plaintiff's property; that a fire occurred at the plaintiff's residence which caused extensive damage to the structure and contents thereof; that pursuant to the terms of the policy the plaintiff notified the defendant Allstate of the loss and damage to her home; that the defendant Darnell, after inspection of the plaintiff's home, elected to exercise defendant Allstate's option to repair the property and contracted with the defendant Ewing for the performance of that work; that the defendant Ewing failed to exercise diligence in performing the repairs and performed them in a negligent, unworkmanlike manner and since December 7, 1978, has failed and refused to complete the work in compliance with the terms of the contract.

Count two of the complaint contained many of the same allegations as count one and in addition thereto alleged as follows: that the plaintiff complained about the slowness and unworkmanlike quality of defendant's work to both defendant Ewing and defendant Darnell who refused to take steps to remedy the problems complained of and conspired together for the purpose of preventing plaintiff from obtaining satisfactory and expeditious repairs to her house; that on December 7, 1978 the defendant Ewing in the presence of defendant Darnell addressed plaintiff's husband in a vile and opprobrious manner and assaulted him without cause or provocation; that when defendant Ewing ceased repairs on December 7, 1978, they were left two-thirds completed and the work performed was so defective as to require extensive remedial and corrective repair work; that both defendants Darnell and Ewing wilfully misrepresented to plaintiff that defendant Ewing was qualified and capable of performing the repairs to plaintiff's home and that the repairs would be completed in a timely manner; that the defendants Ewing and Darnell knew or should have known that the representations were false and that Ewing was neither qualified nor capable of performing the repairs and that the defendant had no intention of completing the repairs in the time stated.

The third count of the complaint is not germane to the issues of this appeal. The defendants answered and denied the material allegations of the plaintiff's petition. The defendant Ewing also filed a counterclaim seeking to recover damages for breach of contract as against the plaintiff.

We granted plaintiff's application for interlocutory appeal in order to consider the correctness of the trial judge's ruling in refusing to compel the defendant Ewing to answer three questions propounded by the plaintiff by written interrogatory.

During discovery process, the plaintiff posed the following interrogatories which are the subject of this appeal.

"2.

State the name, address and telephone number of every individual, corporation, or company for whom you or your company has performed construction or building repair work since January 1, 1975, and state the dates your work commenced and ended with respect to each such individual or other entity ...

"4.

Aside from the job which is the subject of this action, have you ever worked on any jobs with which Defendant EDWARD DARNELL was in any way involved, either as an insurance adjuster or otherwise? If so, state:

(a) The date of such job or jobs;

(b) The name, address and telephone number of each property owner, or other person, company or corporation for whom such job was done (i. e., identify the person or other entity with whom you contracted);

(c) Briefly describe the nature of each such job and the nature of EDWARD DARNELL'S involvement.

"5.

Aside from the job which is the subject of this action, have you ever worked on other jobs for which your work was paid in whole or in part, directly or indirectly, by Allstate Insurance Company as insurer of the repaired or replaced property? If so, state:

(a) The date of such job or jobs;

(b) The name, address and telephone number of each property owner, or other person, company or corporation for whom the work was done (i. e., identify the person or other entity with whom you contracted);

(c) The name, address, home telephone number and business telephone number of each agent, representative or employee of Allstate Insurance Company who adjusted the property damage claim;

(d) Briefly describe the nature of each such job and the nature of Allstate's involvement."

The defendant interposed the following objections to the interrogatories:

"2.

Defendant Ewing objects to this Interrogatory No. 2 on the grounds that it does not seek information relevant to the subject matter involved in the present litigation and seeks information not admissible as evidence and otherwise not reasonably calculated to lead to the discovery of admissible evidence.

Defendant Ewing further objects on the grounds that it is unduly burdensome and oppressive...

"4.

Defendant Ewing objects to Interrogatory No. 4 on the grounds that it does not seek information relevant to the subject matter involved in the present litigation and seeks information not admissible as evidence and otherwise not reasonably calculated to lead to the discovery of admissible evidence. Without waiving said objection, Defendant Ewing responds to the first three lines of said Interrogatory in the affirmative, and further shows that he has not kept records which specifically provide the information sought in the three subsections of said Interrogatory No. 4.

"5.

Defendant Ewing objects to Interrogatory No. 5 on the grounds that it does not seek information relevant to the subject matter involved in the present litigation and seeks information not admissible as evidence and otherwise not reasonably calculated to lead to the discovery of admissible evidence.

Without waiving said objection, Defendant Ewing responds to the affirmative to the...