Keno v. Alside, Inc.

• Decision Date: 20 December 1978
• Docket Number: No. 56326,56326
• Citation: 148 Ga.App. 549,251 S.E.2d 793
• Parties: KENO et al. v. ALSIDE, INC.
• Court: Georgia Court of Appeals

Page 793

251 S.E.2d 793

148 Ga.App. 549

KENO et al. v. ALSIDE, INC.

No. 56326.

Court of Appeals of Georgia.

Argued Sept. 18, 1978.

Decided Nov. 7, 1978.

Rehearing Denied Dec. 20, 1978.

[148 Ga.App. 554] Glen A. Garrett, Atlanta, for appellants.

Kutak, Rock & Huie, R. William Ide, III, C. Edward Dobbs, Atlanta, for appellee.

BIRDSONG, Judge.

Appellants, Keno and White, appeal the jury verdict and judgment entered against them in favor of appellee Alside in the amount of $167,000. The evidence authorized the jury to conclude that Keno was the Atlanta warehouse manager for Alside, an Ohio manufacturer of aluminum siding and metal building products, and that Keno entered into an agreement with Broussard, a salesman working for Alside together with White, a friend of Keno who lived in Keno's home. Though this agreement was somewhat complex, in substance it established a dummy business, and registered that business as an account with Alside in Ohio. Sales actually made to cash and c.o.d. customers in the Atlanta warehouse were recorded in the name of the dummy business. Purchase "drays" were prepared showing cash received for a purchase in an amount less than that actually paid by the customer; cash customers were required to pay "full price" but the dummy business recorded a discount credit; other customers on merchandise returns were given smaller actual credits than were in fact debited to the dummy business. In all cases, the actual purchasers were not disclosed to Alside, who was led to believe that the purchaser was the dummy business. This operation continued from 1972 until 1976. The evidence was in conflict whether the excess funds thus generated were to pay for bad debts for purchasers funneled through the dummy business or was to be divided between Broussard, White and Keno. Broussard in effect confessed culpability, admitting on the stand that he had improperly obtained $10,000 from the scheme. During the trial, Alside dismissed its claim against Broussard in exchange for a $10,000 settlement and his testimony at the trial. Keno and White enumerate six alleged errors. Held :

1. In their first enumeration of error, appellants urge that the weight of evidence is insufficient to support the findings of the jury. On appeal, our review is restricted to the legal sufficiency of the evidence, not the weight of the evidence. Hallford v. Banks, 236 Ga. 472, 224 S.E.2d 35. Nevertheless, the issue of whether there existed a fraudulent scheme to divert money owing to Alside or a mere circumvention of the corporate rules for a beneficent purpose was clearly presented to the jury. That evidence was in conflict, and the jury resolved the issue against the appellants. As to the general grounds, this court is bound by the "any evidence" rule and must accept the appellee's state of the evidence as was done by the jury and the trial judge. In the absence of legal error, this rule prevails even where the verdict may be against the preponderance of the evidence. Thompson v. Hill, 143 Ga.App. 272, 276, 238 S.E.2d 271. In this case the evidence did not demand a verdict in the favor of appellants and there is evidence to support the verdict of the jury. Jones v. State, 141 Ga.App. 17, 18, 232 S.E.2d 365. Thus, the trial court did not err in denying a motion for new trial on the general grounds.

2. In addition to the general grounds, appellants in enumeration no. 4, also urge as error that the trial court erred in refusing upon reconsideration to grant a new trial based upon newly discovered evidence. It is urged that a key witness for Alside misrepresented the shortage by approximately $50,000. Appellants also contend that they were denied sufficient discovery to reveal the discrepancy until after the civil trial was over. At a subsequent criminal trial for mail fraud on the same facts, the error was discovered and allegedly admitted by the witness.

The record does not support appellants' contention. The witness furnished an affidavit for the trial court in its consideration of the extraordinary motion for new trial. The witness did not vary from the amount of the shortage in the two trials but did indicate that differing methods would lead to the same amount of shortage. Thus, in the civil trial, the witness did not consider sales taxes or freight charges. In the criminal trial, these costs were considered; the difference amounted to almost $50,000.

We conclude that the proffered evidence does not meet all the tests demanded for the grant of a new trial based on newly discovered evidence. See Bell v. State, 227 Ga. 800, 805, 183 S.E.2d 357; Dansby v. State, 140 Ga.App. 104, 106, 230 S.E.2d 64. We are satisfied as a matter of law that the proffered evidence was not so material that it would probably produce a different result and that the purpose and effect of the evidence, in its ultimate use, would be to impeach the credit of the witness. Thus, we conclude that the trial court did not err in denying the extraordinary motion for new trial.

3. In enumerations 2 and 3, we are confronted with a longstanding legal principle that a party cannot during the trial ignore what he thinks to be error or an injustice, take his chance on a favorable verdict, and complain later. Joyner v. State, 208 Ga. 435, 438, 67 S.E.2d 221; Gibbons v. State, 136 Ga.App. 609, 610, 222 S.E.2d 55; Sanders v. State, 134 Ga.App. 825, 826, 216 S.E.2d 371. Where an appellant asserts error and no objection was made thereto at trial or no positive action of the trial court was the cause of the alleged error, the action or failure of action by the trial court cannot be made the basis of appellant review, either as a ground of a motion for new trial or as a ground of enumerated error on direct appeal. Pulliam v. State, 236 Ga. 460, 463, 224 S.E.2d 8; Hart v. State, 227 Ga. 171, 179 S.E.2d 346; Moore v. State, 138 Ga.App. 902(2),227 S.E.2d 809. In this case, appellants argue that the trial court erred in forcing them to go to trial on the civil case while a criminal trial was pending in a federal district court. In the second argument, appellants complain that they were denied due process of law and that a fraud was worked upon them by the "purchase" of the testimony of their co-defendant Broussard by Alside and by the actions of Broussard's counsel in not advising them of Broussard's intent to testify against them in exchange for a dismissal as to him.

The record fails to disclose any motion for an order to continue the civil trial. There was complaint made in a brief of the convergence of interests in the two pending suits, but at no time did appellants make a formal request for continuance based on this ground. The only request was for a protective order as to the taking of discovery which was granted in part by the trial court. In their second argument discussed herein, appellants neither objected to the testimony of Broussard nor indicated that they felt...