Jackson v. Meadows

• Decision Date: 13 January 1981
• Docket Number: No. 60773,60773
• Citation: 278 S.E.2d 8,157 Ga.App. 569
• Court: Georgia Court of Appeals
• Parties: JACKSON et al. v. MEADOWS et al.

Page 8

278 S.E.2d 8

157 Ga.App. 569

JACKSON et al. v. MEADOWS et al.

No. 60773.

Court of Appeals of Georgia.

Jan. 13, 1981.

Rehearing Denied Feb. 19, 1981.

Certiorari Denied April 16, 1981.

Andrew R. Kirschner, Atlanta, for appellants.

Tyron Elliott, Manchester, for appellees.

QUILLIAN, Chief Judge.

This is an action for an alleged breach of contract. Plaintiffs appeal from a jury verdict for the defendants Leonard Meadows and Meadows Motors, Incorporated. Plaintiffs contend that Gary Jackson, acting on behalf of himself and his father, ordered from Meadows Motors a 1978 Corvette, Limited Edition, Indianapolis 500 Replica Pace Car. Further, that Leonard Meadows, President of Meadows Motors, Incorporated, interfered with the contract between the plaintiffs and Meadows Motors, by refusing to complete the contract originally agreed to by the parties. The principal area of disagreement between plaintiffs and the defendants is whether any agreement was reached as to the sales price.

Gary Jackson testified that he read in a magazine that a Corvette replica of the Indianapolis Pace Car would be put out by Chevrolet in a limited number and thought it would have a high resale value. His father agreed to put up the money and he spoke to Leonard Meadows about ordering the car for him. He showed Meadows the magazine article and told him he wanted to buy one. Meadows nodded his head and said "fine." Jackson testified further: "I told him, when we were buying cars from you, it's $150 over your invoice; and he said yes, and nodded his head, and I said fine, and I said, when the car comes in, you let me know and I'll bring my check book; and that's it." Plaintiffs introduced the manufacturer's invoice showing the cost to dealer was $11,084.98 and introduced two other documents from "Chevrolet Motor Division, General Motors Corporation: on the "Limited Edition Corvette" which showed the car was delivered to Meadows Motors, "Customer Name Gary Jackson" and contained the designation "Order Type S" which referred to an entry which stated: "Enter 'Order Type' Sold 'S'. " Thus, plaintiff contended these documents showed he ordered the limited edition Corvette which was delivered and showed he was the customer and it had been "sold."

The defendant testified that he had no prior knowledge of the limited edition Corvette before Jackson spoke to him about it. He admitted that Jackson ordered the car and he "intended to have this car sold to Gary Jackson..." To him, the word "sold" only signified "that actually we will offer it to the customer that we put their name on (the order form)." All cars that he ordered for customers were not accepted by them and he could not "make 'em take it." He would sell it to that person "(f)or the price we agreed to." He stated that he had never met Gary Jackson before the day he called him from Atlanta about buying the Corvette and had never sold him a car. He had sold cars to his father and had made a practice of selling cars in stock at $150 over invoice price up until about five years ago. Corvettes were never included in that policy because if he could get them he would "take a thousand or five thousand Corvettes because I could make a lot of money on them..." He was offered a profit of $4,500 over list price for this Corvette after it arrived and he offered it to Gary Jackson for the same price. Meadows testified that he had never sold a Corvette for $150 over list and price was never discussed with Jackson for this Corvette. The jury returned a verdict for the defendants and plaintiffs bring this appeal.

Held :

1. Plaintiffs contend the "court erred in failing to notify or inform counsel of the substance of its intended charges to the jury after having received written requests to charge prior to plaintiff-appellants' argument." (Emphasis supplied.) We agree that Code Ann. § 70-207(b) (Appellate Practice Act of 1965; Ga.L.1965, pp. 18, 31, as amended through 1968, pp. 1072, 1078) provides "(t)he court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury..." However, during the preargument conference, defendant's objection went only "to the formality for selecting the jury charges; it's my opinion that the jury charges ought to be selected...prior to the jury being selected and objections made at that time." The court then stated: "the plaintiff in this case has requested some thirty-one different requests to charge. We'll never get the trial finished if we have to debate on every one of the charges. The Court has gone through the charges as it usually does and figured out what charges are appropriate so any of them won't be repetitious, to try to charge them in succinct terms and the jury can understand them...you have the right to make your objections or exceptions to any charges I do make or fail to make. That's the only reason I'm doing it, because I can't possibly give all of these...and I have my basic charges, and if I charge any one of them, we'll be here the rest of the day and confuse the jury. That's the reason I do it that way. Any other objections?" Mr. Kirschner : "No other objections."

Thus, the objection made at trial dealt only with the time when the decision was made known to counsel as to what the court would charge. That is not the error enumerated on appeal which relates to the "substance" of the charges not being made known to counsel. Accordingly, the objection made at trial is abandoned as it is not enumerated as error. Holiday Homes v. Bragg, 132 Ga.App. 594, 597, 208 S.E.2d 608. And, grounds enumerated as error but not raised during trial may not be raised for the first time on appeal. Velkey v. Grimes, 214 Ga. 420, 421, 105 S.E.2d 224.

Furthermore, the mere failure to inform counsel of his intention to charge is not such an omission as will require the grant of a new trial in the absence of prejudice. Braswell v. Owen of Ga., 128 Ga.App. 528, 530(3), 197 S.E.2d 463. In the absence of any request by counsel to be informed of the judge's proposed action on requested charges, noncompliance with Code Ann. § 70-207(b) "is not, in and of itself, reversible error." 128 Ga.App. at 531, 197 S.E.2d 463. " '(W)hen counsel embark upon their summation without any request for such information, the trial judge may usually infer that they envisage no need for such information and treat the requirement as waived.' " Smith v. Poteet, 127 Ga.App. 735, 743, 195 S.E.2d 213.

Our Code Ann. § 70-207(b) is an adaptation of Rule 51 of the Federal Rules of Civil Procedure and federal courts have consistently held "that the failure to inform counsel of the court's proposed action on the refusal to charge is not reversible error per se, but that in order to warrant a reversal or new trial for failure to comply with this rule, prejudice must be shown. (Cits.)." Seaney & Co. v. Katz, 132 Ga.App. 456, 208 S.E.2d 333. And, the burden is on the complaining party to show harm. Id., Post-Tensioned Const. v. VSL Corp., 143 Ga.App. 148(5), 237 S.E.2d 618. The record does not reflect that the defendant was misled or that he was hampered in his argument to the jury. Daniels v. State, 137 Ga.App. 371(4), 224 S.E.2d 60; Post-Tensioned Const. v. VSL Corp., 143 Ga.App. 148(5), 237 S.E.2d 618, supra; Hudson v. State, 150 Ga.App. 126(3), 257 S.E.2d 312.

We are aware of Evans v. State, 146 Ga.App. 480, 246 S.E.2d 482, a criminal case predicated upon a factual base where "the trial judge refused " to inform counsel of the court's ruling on counsel's "special requests to charge." In the instant case the trial court's attention was directed only to an objection based on the time the decision was made and advised counsel "(t) he Court has gone through the charges as it usually does and figured out what charges are appropriate so any of them won't be repetitious, to try to charge them in succinct terms and the jury can understand them" and then asked counsel if there were "(a)ny other objections." Counsel voiced no objections to the proposed action of the court which was not a refusal of any request of counsel, but a mere failure to comply with the Code.

Evans, supra, did not purport to overrule the earlier cases of Smith v. Poteet, 127 Ga.App. 735, 742-743, 199 S.E.2d 213, supra; Braswell v. Owen of Ga., 128 Ga.App. 528(3), 197 S.E.2d 463, supra; or Seaney & Co. v. Katz, 132 Ga.App. 456, 208 S.E.2d 333 (Whole Court) supra, which control the result we reach. We also find the facts of this case to be similar to those of Shirley v. State, 245 Ga. 616(2), 266 S.E.2d 218, where the trial court failed to comply with Code Ann. § 70-207(b), but did not refuse to inform counsel of his proposed action on counsel's requests to charge. The Supreme Court found no prejudicial error.

The failure of the trial judge to inform counsel as to which of the requested charges would be included in the Court's instructions to the jury is clearly error. However, to effect a reversal of the case because of the trial judge's failure to comply with the provisions of Code Ann. § 70-207(b) it is necessary that counsel make a proper objection and perfect the record so the appellate court will have the issue properly before it for determination. In the case sub judice counsel for the appellant failed to meet this necessary requirement. Accordingly, while not condoning the trial court's action, we find no prejudicial error.

2. Plaintiff argues that the court erred in permitting "in evidence copies of invoices indicating contracts and sales made between the corporate defendant and third parties..." The evidence objected to was Defendant's Exhibit 1, a summary of 48 attachments representing "bills of sale and copies of my factory invoices on sales of Corvettes." Plaintiff objected on the ground that "the entire package is entirely irrelevant" and "the cover sheet, that document is neither the best evidence of the transactions which are being represented nor is the document kept in...