Georgia Power Co. v. Womble
| Decision Date | 14 May 1979 |
| Docket Number | No. 57344,57344 |
| Citation | 256 S.E.2d 640,150 Ga.App. 28 |
| Parties | GEORGIA POWER COMPANY v. WOMBLE. |
| Court | Georgia Court of Appeals |
Dye, Miller, Bowen & Tucker, Thomas W. Tucker, A. Montague Miller, A. Rowland Dye, Augusta, for appellant.
Allen, Brown, Wright & Edenfield, Charles H. Brown, Susan E. Warren, Statesboro, for appellee.
Ira S. Womble, Jr. filed a complaint in the Evans Superior Court against the Georgia Power Company. The action arose out of the following circumstances. In 1956 the defendant had installed a meter to gauge the use of electricity in the plaintiff's home. In 1975 it was discovered, by means of tests, that the meter registered twice the amount of power usage that was actually consumed in the plaintiff's home.
The plaintiff's complaint as amended was brought in four counts. However, prior to the trial two of the counts were stricken by the trial judge, leaving only the second and third counts of the complaint. In Count 2 of the complaint the plaintiff alleged that the defendant was negligent in constructing, installing and erecting the meter upon the plaintiff's residence and that the sole and proximate cause of plaintiff's damages was the negligence of the defendant in inspecting, erecting and constructing the meter. In Count 3 of the complaint the plaintiff alleged that the defendant by fraud and deceit continued to require the plaintiff to pay for electrical services he never received; that the defendant by such fraudulent acts and omissions procured excess sums of money from the plaintiff and that the sole and proximate cause of damages to the plaintiff was the defendant's false representations. Under both counts of the complaint, the plaintiff sought the recovery of general and punitive damages. The defendant, by responsive pleadings, denied the material allegations of the complaint and also set forth, among other defenses, the contention that plaintiff's claim was barred by the statute of limitations and that the rules and regulations of the Georgia Public Service Commission limited the amount of the plaintiff's recovery to the alleged rate overcharge. It was also asserted that the claim was barred by laches on the part of the plaintiff.
After extensive discovery proceedings by both parties, the case came on for trial which resulted in a jury verdict in favor of the plaintiff, finding $25,000 general damages and $75,000 punitive damages. From the denial of its motion for new trial and motion for judgment notwithstanding the verdict, the defendant appeals to this court. Held :
1. The defendant raised the issue of the statute of limitations and made a motion for directed verdict based on that ground. The trial judge overruled the defendant's motion, thus leaving the issue of whether the claim was barred by the statute for the consideration of the jury. However, the trial judge refused to charge defendant's request to charge on the issue of the statute of limitations and made no charge which would present such issue to the jury.
Citing Leonard v. Cesaroni, 98 Ga.App. 715, 721, 106 S.E.2d 362, the plaintiff argues that the invocation of the statute of limitations is a question of law for the determination of the courts. Nevertheless, the correct rule is found in Larkins v. Boyd, 205 Ga. 69, 72, 52 S.E.2d 307, 310 wherein it was held: "If the sole question is one as to the length of time which has elapsed between the accrual of the right and the institution of the action, the question as to whether or not the action is barred would be one of law; but where there are facts involving fraud and excuses for delay in discovering the fraud, the question becomes one of mixed law and fact, and is a proper question for determination by the jury under instructions from the court." Accord, Morris v. Johnstone, 172 Ga. 598, 605, 158 S.E. 308; Brown v. Brown, 209 Ga. 620, 622, 75 S.E.2d 13. "While it is generally true that, where the plaintiff has been deterred or debarred from his action by reason of fraud on the part of the other party, the statute of limitations does not run until the discovery of the fraud (present Code § 3-807), yet 'fraud which tolls the statute of limitations must be such fraud as could not have been discovered by the exercise of reasonable diligence, where there is no confidential or fiduciary relation existing between the parties, or other facts which will excuse the failure to act.' " Phipps v. Wright, 28 Ga.App. 164(3), 110 S.E. 511. "Mere ignorance of fraud which, by the use of ordinary diligence, might have been discovered in due time, will not suspend the operation of the statute of limitations." Morris v. Johnstone, 172 Ga. 598, 606, 158 S.E. 308, 312, supra. Accord, Frost v. Arnaud, 144 Ga. 26, 29, 85 S.E. 1028.
During the course of the trial the plaintiff testified that shortly after he moved into his house in 1956 he suspected that the meter was wrong and made complaints concerning it. These complaints, according to the plaintiff, were made over the course of several years. In 1960 the plaintiff requested the representative of the power company to replace the meter he was using with another meter but this request was refused. In 1974 the plaintiff requested and obtained from the defendant power company a test of his meter which test, according to the defendant, showed the meter to be accurate. Subsequently, the plaintiff performed his own test which indicated to him that the meter was malfunctioning and in fact was registering twice as much usage as was actually taking place. In 1975 a test by the power company revealed this to be true. It is therefore clear that a very serious issue was presented as to at what point the statute of limitations began to run as against the plaintiff. The trial judge during the course of the trial did make reference to the fact that the plaintiff must have acted with reasonable diligence in ascertaining whether or not the meter was defective. However, as we have pointed out above, at no point was the jury charged the law and the effect of the statute of limitations and what principles they should apply in that regard. The defendant objected to both the failure to give its requests to charge and the omission of any charge with reference to the statute of limitations. In view of the record and evidence produced on the trial we find that it indeed was error to fail to charge on the statute of limitations.
2. Error is assigned on the following charge: ...
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