A.H. Friedman, Inc. v. Augusta Burglar Alarm Co.

• Decision Date: 04 April 1988
• Docket Number: No. 76258,76258
• Citation: 186 Ga.App. 769,368 S.E.2d 534
• Parties: A.H. FRIEDMAN, INC. v. AUGUSTA BURGLAR ALARM COMPANY et al.
• Court: Georgia Court of Appeals

Page 534

368 S.E.2d 534

186 Ga.App. 769

A.H. FRIEDMAN, INC. v. AUGUSTA BURGLAR ALARM COMPANY et al.

No. 76258.

Court of Appeals of Georgia.

April 4, 1988.

H. Andrew Owen, Jr., Perry A. Phillips, Atlanta, for appellant.

Gail D. Stebbins, Augusta, for appellees.

DEEN, Presiding Judge.

Appellant Friedman, Inc. (Windsor), contracted with appellee Augusta Burglar Alarm Co., Inc. (Augusta), to install and service a burglar alarm system which would register at the 911 center if a break-in were to occur. The system required a dedicated telephone line, which was furnished and installed by appellee Southern Bell. On July 25, 1982, a red light flashed and a buzzer sounded at the 911 center. Personnel there determined that the signals indicated a break-in at Windsor, and a patrol car was dispatched, arriving in approximately three minutes. The front door was locked and showed no signs of forcible entry; all the jewelry cases had been neatly cleared, however, and the safe had been burned open and rifled of all the merchandise it contained, as well as certain costly equipment used in the jewelry business. The terminal for the burglar alarm, which was located on the wall five feet above a stair ascending the side of a nearby building, was found to have been tampered with; a pair of wires clearly marked "Windsor Jewelers Burglar Alarm" had been disconnected, as had other wires in the unlocked terminal box. Subsequent investigation indicated that, because the burned safe was cold, the actual entry must have taken place five to six hours before the burglars left the store, apparently sounding the alarm at that time. The burglar alarm itself was missing; the burglars had presumably taken it with them.

Windsor brought an action against Augusta and Southern Bell, alleging negligence. An additional count alleging breach of contract was brought against Southern Bell. On each count plaintiff/appellant sought to recover $536,000, the amount at which the stolen goods were valued. Windsor filed a motion in limine that evidence of insurance payments be excluded; this was denied. Southern Bell filed an in limine motion that evidence that Windsor employees had taken polygraph tests be excluded; this was granted. Windsor contended that Southern Bell was negligent in not acceding to Windsor's requests that appellee remove the label from the wires, lock the box, or move the box to a secure location. Southern Bell was apparently pursuing the theory that the burglary was an "inside job."

Windsor sought a certificate of immediate review, alleging that OCGA § 51-12-1(b) applies only to personal injury claims and is only prospective in application. We granted the application, and on appeal Windsor enumerates as error the trial court's denial of its motion in limine, expressly on the basis that OCGA § 51-12-1(b) permitted evidence of insurance, and the granting of Southern Bell's motion regarding exclusion of polygraph evidence. Held:

1. We first address the propriety of the trial court's ruling on the motion regarding polygraph evidence. "The present rule in Georgia is that the results of polygraph examinations are not admissible into evidence, absent an express stipulation by the parties that they shall be admissible. State v. Chambers, 240 Ga. 76, 239 S.E.2d 324 (1977). This rule applies to civil actions. [Cits.] With regard to evidence of the mere fact that a polygraph examination has been given, our Supreme Court has held as follows: '... [T]he mere fact that the jury is apprised that a lie detector test was taken is not necessarily prejudicial if no inference as to the result is raised, or if any inferences that might be raised as to the result are not prejudicial. This determination should not, of course, encourage attempts to introduce evidence concerning lie detectors ...' " Munford, Inc. v. Anglin, 174 Ga.App. 290, 294 et seq., 329 S.E.2d 526 (1985). In Anglin the court went on to hold, at 294, 329 S.E.2d 526, that, because polygraph examinations are unreliable, evidence concerning their use should be admitted "only when clearly relevant and unmistakably nonprejudicial." Stack v. State, 234 Ga. 19, 24, 214 S.E.2d 514 (1975). We find no merit in this enumeration.

2. Windsor alleges that OCGA § 51-12-1(b), which in effect negates the operation of the "collateral source" rule in Georgia, applies to personal injury only and not to property damage. This subsection became effective July 1, 1987; the instant case went to trial September 8, 1987. By its terms, subsection 1(b) provides in pertinent part that "[i]n any civil action ... for the recovery of damages arising from a tortious injury in which special damages are sought to be recovered ..., evidence of all compensation, indemnity, insurance (other than life insurance), wage loss replacement, income replacement, or disability benefits or payments available to the injured party from any and all governmental or private sources and the cost of providing and the extent of such available benefits or payments shall be admissible for consideration by the trier of fact. The trier of fact, in its discretion, may consider such available benefits or payments and the cost thereof but shall not be directed to reduce an award of damages accordingly." The statute makes no distinction between personal injury and injury to property but employs the inclusive term "tortious injury" without any qualification. We are not persuaded, either by appellant's arguments purporting to distinguish between "injury" and "damage," or by its further argument regarding the purported non-applicability of the subsection in cases where subrogation rights are involved, that the legislature intended that the statute's effect be confined to such a narrow scope as appellant advocates.

3. Appellant further contends, however, that, because the cause of action accrued before July 1, 1987, the subsection is inapplicable to the instant case. If OCGA § 51-12-1(b) be construed as substantive, this is correct; if procedural, then the converse is true. OCGA § 1-3-5; Talmadge v. Cordell, 170 Ga. 13, 152 S.E. 91 (1930); Pritchard v. Savannah St. & R. Co., 87 Ga. 294, 13 S.E. 493 (1891). "Laws looking only to the remedy or mode of trial may apply to contracts, rights, and offenses entered into, accrued, or committed prior to their passage." OCGA § 1-3-5. "A change ... in rules of evidence is considered remedial; and remedial changes in law may validly operate retroactively." Bryan v. Bryan, 242 Ga. 826, 829, 251...