NEDA Const. Co., Inc. v. Jenkins

• Court: Georgia Court of Appeals
• Writing for the Court: MARSHALL; BELL, C.J., and WEBB
• Citation: NEDA Const. Co., Inc. v. Jenkins, 223 S.E.2d 732, 137 Ga.App. 344 (Ga. App. 1976)
• Decision Date: 06 January 1976
• Docket Number: No. 1,No. 51191,51191,1
• Parties: NEDA CONSTRUCTION COMPANY, INC., et al. v. A. H. JENKINS

Page 732

223 S.E.2d 732

137 Ga.App. 344

NEDA CONSTRUCTION COMPANY, INC., et al. v. A. H. JENKINS.

No. 51191.

Court of Appeals of Georgia, Division No. 1.

Jan. 6, 1976.

Rehearing Denied Jan. 23, 1976.

Falligant, Karsman, Kent & Toporek, Stanley Karsman, Savannah, for appellants.

Smith & Portman, Barnard M. Portman, Savannah, for appellee.

MARSHALL, Judge.

Appellants bring this appeal from a directed verdict in favor of plaintiff below, contesting the amount of damages awarded by the jury.

The facts reflect that Southern Bell undertook to lay telephone cable or conduit within the corporate limits of the City of Savannah. Southern Bell drew plans and specifications for the laying of such conduit and obtained a permit from the City of Savannah to lay the conduit under the sidewalks. The building code of the City of Savannah required that no excavation adjacent to or near existing footing of a building should be within one foot of the angle of repose ¹ of the soil laterally supporting that footing. The plans and specifications drawn by Southern Bell detailing the path of the conduit did not consider the angle of repose of the soil supporting any buildings adjacent to the sidewalks under which the conduit was to be laid.

Southern Bell contracted with the appellant NEDA Construction Company, Inc., to conduct the actual digging of the required six foot deep trench, place the conduit in an appropriate pipe at the bottom of the trench, anchor the pipe in concrete and backfill the trench. NEDA was an independent contractor. NEDA's employees were supervised by one Roundtree. Roundtree was not an engineer nor was he aware of an angle of repose, nor does the transcript reflect that a construction engineer was required to be present at the construction site. Roundtree followed without deviation the path set forth in the plans and specifications prepared by Southern Bell.

Appellee, Jenkins, owned a home built circa 1853, classified as a 'notable' example of homes in the historic area of Savannah. The trench dug by NEDA through and under the sidewalk adjacent to Jenkins' home, was within and below the angle or repose of the lateral soil supporting the footing of a major support wall of Jenkins' home. The foreman, Roundtree, as soon as the trench was dug noticed the appearance of a crack in that wall. The disturbance of the angle of repose caused the footing of the cracked wall to drop one or more inches and the wall slightly to rotate causing substantial cracking and damage to the main support wall.

Jenkins brought an action for $110,000 against both Southern Bell and NEDA. Following the submission of evidence, the trial court concluded there was no real issue as to the question of liability and directed a verdict as to liability for appellee Jenkins against both defendants, which was followed by the award of $60,000 unspecified general and special damages and $9,750 exemplary damages rendered by the jury. Southern Bell and NEDA appeal enumerating six errors. Held:

1. The first enumeration alleges error in the trial court's refusal to grant appellants' two separate motions for mistrial. Both of the motions for mistrial were precipitated by the interjection into this damage suit by witnesses called by appellee of references to insurance coverage. The first of these references occurred when an occupant of Jenkins' house testified that NEDA's construction foreman, Roundtree, admitted a wall had cracked but that insurance would take care of the damages. Appellant moved for a mistrial which was denied.

". . . [T]he statement, that the defendant thought the accident was his fault and that he was insured and for someone to write down his name and address, was admissible as an admission of party to a case against his interest, and it was not subject to the objection raised against it . . . It is well settled law in this State that the mere fact that an insurance company is mentioned during the trial of a case by evidence that is otherwise competent and admissible, does not make the evidence inadmissible or its admission error. (Cits.)' Wade v. Drinkard, 76 Ga.App. 159(5), 164, 45 S.E.2d 231, 235. See also: McDuffie County v. Rogers, 124 Ga.App. 442, 443, 184 S.E.2d 46 and cits.; Goldstein v. Johnson, 64 Ga.App. 31, 35, 12 S.E.2d 92.

The second reference to insurance occurred when appellee's expert consulting engineer was testifying concerning the apparent cause of the cracks in the support wall, the most feasible way of effectuating repairs, and the steps taken by appellant NEDA to preclude further damage to the cracked wall. It was his opinion that 'they' were not taking adequate precautions. Appellant objected to the vague reference 'they,' complaining that 'they' did not identify any responsible party. Upon being asked whom he meant by 'they,' the witness replied, 'the representative of the contractor and the insurance company.' The response occurred directly as a result of the objection by appellant's counsel. The trial court referred to an earlier instruction to the jury to disregard such references and not to consider it in their deliberations. A second motion for mistrial likewise was overruled.

We do not know and will not speculate whether the reference was to a representative of the insurance company of either of the appellants, the appellee, or of some other interested third party. 'In Georgia the injection into a case of testimony pertaining to liability insurance does not automatically require a grant of a motion for a mistrial. It is only where the testimony is so obviously prejudicial in its nature that its adverse effect cannot be eradicated from a minds of the jury or its consequences avoided by proper cautionary instructions from the court, that a mistrial should be granted. (Cits.) The determination as to whether these harmful factors are present in a case necessarily rests in the discretion of the trial judge. Appellate courts should never interfere with the exercise of that discretion unless it is made to appear that wrong or oppression has resulted from its abuse.' Wallace v. Cates, 120 Ga.App. 228, 170 S.E.2d 40. This innocuous reference to insurance was harmless. Heinz v. Backus, 34 Ga.App. 203(2b), 128 S.E. 915, as well as being partially induced by appellants' counsel. Jackson v. State, 234 Ga. 549, 553, 216 S.E.2d 834.

2. In the second enumeration, appellants aver the court erred in overruling a motion to set aside the verdict and judgment or in the alternative, a motion in arrest of judgment. The jury returned the following verdict: 'This is the case of Albert H. Jenkins vs. Neder (sic) Construction Company and Southern Bell Telephone and Telegraph Company, December 13, 1974. We the jury find in favor of the plaintiff and against the defendant in the amount of $60,000 damages to property. We also find in favor of the plaintiff and against the defendant in the amount of $9,750 punitive damages.' On December 17, 1974, the trial court at one point in its order entered its judgment against the 'defendants.'

Appellants assert that the verdict and judgment in this case is against the 'defendant' in spite of the fact that the court refers to 'defendants' at one point in its judgment. It is alleged that the effect of the verdict and judgment is so ambiguous that defendants (appellants) cannot determine who the verdict and judgment is against. They allege that the defect is non-amendable, consequently the verdict and judgment should have been set aside and the judgment arrested.

' Verdicts shall have a reasonable intendment, and shall receive a reasonable construction . . .' Code § 110-105(5927). 'The superior court may, in a proper case, mould the verdict so as to do full justice to the parties, and in the same manner as a decree in equity.' Code § 110-106(5928). Verdicts are not to be set aside for indefiniteness if they are capable of being reduced to a reasonable certainty by the application of the ordinary canons of construction. Under the common canons of construction, the singular and the plural each includes the other, unless the contrary plainly appears from the context. Thus, a verdict involving the defendant will be construed as a finding involving all defendants, when the suit is against two or more persons. Monk-Sloan Supply Co. v. Quitman Oil Co., 10 Ga.App. 390(1), (3), 73 S.E. 522. "The verdict may be construed in the light of the pleadings, the issues made by the evidence and the charge. (Cits.) . . . The presumptions are in favor of the validity of verdicts, and if possible a construction will be given which will uphold them. (Cit.) Even if the verdict is ambiguous . . . and susceptible of two constructions, one of which would uphold it and one of which would defeat it, that which would uphold it is to be applied. (Cit.)' Haughton v. Judsen, 116 Ga.App. 308, 310, 157 S.E.2d 297, 299.' West Georgia Pulpwood, etc., Co. v. Stephens, 128 Ga.App. 864, 870, 198 S.E.2d 420, 423. This enumeration is without merit.

3. Appellants contend in the third enumeration that the court erred in directing a verdict on the issue of liability against both defendants. It is alleged that the record is totally void of any negligence on the part of the appellant Southern Bell. Southern Bell argues that NEDA did the actual digging and because it was an independent contractor, its negligence, if any, was not attributable to Southern Bell.

The evidence establishes that the damage to the wall was caused by NEDA's excavation of a six foot trench within and below the angle of repose of the lateral soil supporting the footing of the wall. This trench was dug by NEDA...