Johnson v. Hensel Phelps Const. Co.
| Decision Date | 23 September 1982 |
| Docket Number | No. 38654,38654 |
| Citation | 295 S.E.2d 841,250 Ga. 83 |
| Parties | JOHNSON v. HENSEL PHELPS CONSTRUCTION COMPANY. |
| Court | Georgia Supreme Court |
Paul A. Howell, Jr., Terrence Lee Croft, Judson Graves, Atlanta, for Hensel Phelps Const. Co.
G. Michael Hartley, Douglasville, for Thomas Dean Johnson, III, et al.
We granted certiorari to consider, in part, "whether on appeal an appellant is limited to the specific grounds stated at trial in support of a motion for a directed verdict ..."
Appellant Johnson, a construction worker employed by A. R. Winter Co., a subcontractor, was injured in October 1975 while working on a project initiated by Metropolitan Atlanta Rapid Transit Authority (MARTA). While helping unload steel at a construction site, Johnson was badly burned when a crane he was touching came in contact with high-voltage electrical wires. Johnson sued, naming as defendants MARTA (the property owner), appellee Hensel Phelps Construction Co. (the general contractor for the job), and Parsons, Brinckerhoff, Tudor and Bechtel (the construction manager for MARTA). Johnson's theory at trial was that the defendants were jointly negligent in failing to have the high-voltage wires de-energized.
The case was tried before a jury, and on April 27, 1981, Johnson recovered $89,156.38 against Hensel Phelps, $45,190.04 against Parsons, Brinckerhoff, Tudor and Bechtel, and nothing against MARTA. Five days after the jury verdict and before judgment was entered in the case, this court decided Wright Associates v. Rieder, 247 Ga. 496, 277 S.E.2d 41 (1981), which overruled Blair v. Smith, 201 Ga. 747, 41 S.E.2d 133 (1947), and held for the first time that a statutory employer under Code Ann. § 114-103 is immune in tort from suit by the employee of an independent contractor.
On May 26, 1981, Hensel Phelps, appellee herein, filed its appeal from the superior court judgment to the Court of Appeals, alleging as error the trial court's denial of its motion for a directed verdict. See Code Ann. § 6-702. The Court of Appeals applied our decision in Wright Associates, supra, retroactively and reversed the judgment against Hensel Phelps. 1 Hensel Phelps Constr. Co. v. Johnson, 161 Ga.App. 631, 295 S.E.2d 843 (1982). The court held that Hensel Phelps' motion for a directed verdict should have been granted and the case kept from the jury because, under the law as it existed at the time of appeal, Hensel Phelps was a statutory employer of Johnson and as a matter of law was not liable to him in tort. Because we hold that Hensel Phelps failed to preserve its statutory employer defense for appeal, we reverse.
"A motion for directed verdict shall state the specific grounds therefor ..." Code Ann. § 81A-150(a). By the great weight of authority, one appealing the denial of a motion for directed verdict may not raise for the first time on appeal a ground not specifically raised in the original motion. Davis v. Glenville Haldi, P.C., 148 Ga.App. 842, 253 S.E.2d 207 (1979); Adams v. Smith, 129 Ga.App. 850, 201 S.E.2d 639 (1973); Western Oil Fields, Inc. v. Pennzoil United, Inc., 421 F.2d 387 (5th Cir. 1970) ( F.R.C.P. 50(a) ); Maryland Cas. Co. v. Talley, 115 F.2d 807 (5th Cir. 1940) (same). See also Wright & Miller, Federal Practice and Procedure: Civil § 2536 (); 5A Moore's Federal Practice p 50.04.
We agree with these authorities that a rule limiting appellate review of the denial of a motion for a directed verdict to the grounds specifically raised in the motion is a wise one. The injustice inherent in the application of a contrary rule is apparent. Under a more lenient standard, a party who fails to raise an issue in its motion for directed verdict might, on appeal, obtain a reversal on a ground never proven or considered by the jury. This...
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