Denham v. Shellman Grain Elevator, Inc.

• Decision Date: 18 March 1971
• Docket Number: Nos. 1,3,No. 45766,2,45766,s. 1
• Citation: 123 Ga.App. 569,181 S.E.2d 894
• Parties: Alva R. DENHAM v. SHELLMAN GRAIN ELEVATOR, INC
• Court: Georgia Court of Appeals

Page 894

181 S.E.2d 894

123 Ga.App. 569

Alva R. DENHAM v. SHELLMAN GRAIN ELEVATOR, INC.

No. 45766.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

March 18, 1971.

Rehearing Denied April 2, 1971.

Syllabus by the Court

1. Appellant's assignments of error-that the evidence was insufficient to support the verdict-(general grounds of the motion for new trial and appeal from final judgment) are without merit.

2. Where the same witness later gives the same testimony without objection, it was not reversible error to have allowed the original testimony in evidence.

3. Proper objection must be made to the charge in all civil cases before the jury returns its verdict, unless there has been substantial error, harmful as a matter of law.

4. The attorney's fees awarded were not excessive since there was expert opinion testimony as to the value of same.

5. It is proper for the court, before the jury disperses, to require it to perfect its verdict when the verdict returned is clearly inconsistent with the instructions given.

This is a suit for the fraudulent conversion of certain personal property of the plaintiff wherein it is alleged that the defendants 'acting in concert and in bad faith, did wilfully, intentionally, and fraudulently' convert the property to their own use. The petition was in two counts. Count 1, as amended, alleges that the fraudulent acts of the defendants were not discovered until the year 1968, and therein sought a money judgment for principal, interest and attorney's fees. Count 2 appears to be the same as Count 1, except that the alleged fraudulent acts occurred during the last four years and seek merely principal and interest. The defendant Crump failed to answer and the suit was in default as to him. The defendant, Denham, answered, denying, in the main, the averments of Counts 1 and 2. The case proceeded to trial before a jury, resulting in a verdict against both defendants.

The defendant, Denham, filed a motion for new trial which was dismissed and overruled for lack of prosecution when the defendant Denham failed to appear either in person or through counsel after the case had been continued once. The appeal is from the judgment entered following the verdict. Errors are enumerated here, as follows: 1. As to dismissal and overruling of defendant's motion for new trial; 2. In failing to charge the jury properly Hugh Wilson, Ashburn, Burt & Burt, H. P. Burt, Donald D. Rentz, Albany, for appellant.

3. In allowing plaintiff to cross examine defendant as to transfer of property to his wife, including the allowance of a copy of deed to said property; 4. In upholding that portion of verdict which was for $7,500 attorney's fees, against defendant's contention that same were excessive; and 5. In sending the jury back to the jury [123 Ga.App. 571] room and allowing it to change its verdict from Count 2 to Count 1.

James M. Collier, Dawson, Jesse G. Bowles, Cuthbert, for appellee.

EVANS, Judge.

1. Headnote 1 requires no further elaboration.

2. Whether the court erred in admitting certain testimony over objection is immaterial when the same witness later gives substantially the same testimony. The evidence as to the transfer of defendant's property to his wife, including the deed of transfer, was objected to at the time it was first admitted. However, defendant's counsel thereafter thoroughly explored this subject matter when the defendant took the stand. Hence, the admission of the evidence not objected to was not reversible error. Chandler v. Alabama Power Co., 104 Ga.App. 521, 525, 122 S.E.2d 317; Hunt v. Williams, 104 Ga.App. 442, 444, 122 S.E.2d 149; Insurance Co. of North America v. Gulf Oil Corp., 106 Ga.App. 382, 392, 127 S.E.2d 43.

3. There was no written request to charge on any specific matter, and the court's charge was sufficient under the evidence. This was an action for intentional acts of conspiracy to defraud and was not one for deceit as in Dixie Seed Co. v. Smith, 103 Ga.App. 386, 389, 119 S.E.2d 299, which is not in point here. Under the authority of Black v. Aultman, 120 Ga.App. 826(4), 172 S.E.2d 336 (Evans, Judge, dissenting) appellant not only failed to make any written requests to charge, he also failed to make proper exceptions under the requirements of § 17 of the Appellate Practice Act (Ga.L.1965, pp. 18, 31; 1966, pp. 493, 498; 1968, pp. 1072, 1078; Code Ann. § 70-207). It is also noted that following the charge of the court and after a colloquy between counsel for both parties, counsel for the defendant Denham stated to the court that 'they were satisfied with the the charge of the court.' But counsel insists that the court committed substantial error as a matter of law in failing to charge certain excerpts. We examine some of these excerpts in the light of the evidence submitted.

The defendant Crump was the servant, employee and agent of the plaintiff in and about his business as a shop foreman. The law forbade his making a profit our of such relationship to the injury of his principal. Code § 4-204; Forlaw v. Augusta Naval Stores Co., 124 Ga. 261, 52 S.E. 898; Stover v. Stlantic Ice & Coal Corp., 154 Ga. 228, 113 S.E. 802; Larkins v. Boyd, 205 Ga. 69, 73, 52 S.E.2d 307. Plaintiff contended and proved by the testimony of his employee, defendant Crump, that he took plaintiff's property and gave it to the defendant Denham who had knowledge it was plaintiff's property, for considerably less than it was worth. Where a defendant has been guilty of fraud by which the plaintiff has been prevented from discovering same, the period of limitation shall run from the time of the discovery of the fraud. Code § 3-807; Anderson v. Foster, 112 Ga. 270(1), 37 S.E. 426; Silvertooth v. Shallenberger, 49 Ga.App. 133(1), 174 S.E. 365; Middleton v. Pruden, 57 Ga.App. 555, 196 S.E. 259; Saffold v. Scarborough, 91 Ga.App. 628(2), 86 S.E.2d 649. All the evidence points to the bringing of this case within four years of discovery of the fraud. Hence, the evidence was sufficient to toll the statute of limitations until the discovery of the fraud, and without a request a But the court did charge that the failure to reveal the taking of the property by the employee (defendant Crump) amounted to such fraud as would extend the right of the petitioners to bring the action to recover the property or its value for a period of seven years after the discovery of the fraud. No complaint is made that this charge was argumentative, but the objection was that the period of years as to statute of limitations was incorrect.

charge on the statute of limitations was not required.

The Supreme Court has many times held that the period of limitation applicable to an action for fraud in procuring the title to land is the same as that which would apply to an action for the land, that is, seven years from the discovery of the fraud. Cade v. Burton, 35 Ga. 280; Knox v. Yow, 91 Ga. 367(5), 17 S.E. 654; Crawford v. Crawford, 134 Ga. 114, 67 S.E. 673, 28 L.R.A., N.S., 353, 19 Ann.Cas. 932; Jones v. Johnson, 203 Ga. 282, 46 S.E.2d 484. However, this rule does not apply here where only personalty is involved. The charge was correct as an abstract principle of law, but it was inapplicable. But, even if erroneous, this excerpt was not harmful as a matter of law, because the evidence clearly shows the action was filed within four years from discovery of the fraud.

Accordingly, none of the enumerations of error, complaining that the court committed substantial error in charging or failing to give the jury certain instructions in its charge, is meritorious.

4. The evidence submitted by an expert as to the value of an attorney's services to bring this action authorized an award of $7,500 in attorney's fees, this testimony being that the same was worth $10,000. The award of attorney's fees was not excessive. Reserve Life Insurance Co. v. Ayers, 217 Ga. 206(2), 121 S.E.2d 649.

5. The jury returned a verdict in favor of the plaintiff on Count 2 in the amount of $29,843.20, and 'attorney's fees $7,500.' Twice the court requested the foreman to read the verdict and advised the foreman, after he stated that the finding was in favor of the plaintiff against both defendants, that he should write the verdict accordingly. He then instructed the foreman to publish the verdict, which the foreman did, as follows:

'We, the jury, find in favor of the plaintiff in Court 2 against both defendants in the amount of $29,843.20, attorney's fees $7,500.'

Whereupon, counsel for the plaintiff objected to the verdict as being inconsistent. The court then instructed the jury that if they found in favor of the plaintiff against both defendants or either of the defendants on Count 2 'you cannot award attorney's fees, only under Count 1 can you award attorney's fees.' He then asked the further question: 'Is your finding based absolutely on the evidence and the law given you in charge as applied to Count 2?' Mr. Foreman: 'Yes, sir.' Whereupon the jury was instructed to return to the jury room and correct its verdict. After further deliberation the jury returned with a finding against both defendants under Count 1 as shown above, and in favor of the plaintiff, attorney's fees of $7,500. It is noted here that at no time did counsel for the defendant object to the court's handling of the jury. Thus, the court did not err in allowing the jury to publish its verdict and then instructing them to return to the jury room to correct the verdict. See Code § 110-110; Cook v. State, 26 Ga. 593(5); Manry v. First National Bank, 195 Ga. 163, 166, 23 S.E.2d 622; Lowery v. Morton, 200 Ga. 227, 36 S.E.2d 661; Piedmont Cotton Mills v. General Warehouse, 222 Ga. 164, 171, 149 S.E.2d 72.

Having thoroughly examined each and every alleged error set forth in appellant's enumerations, and as argued by counsel, we find no reversible error.

Judgment affirmed.

BELL, C.J., JORDAN, P.J., and PANNELL, DEEN, QUILLIAN and EVANS, JJ., concur specially.

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