Pinkerton & Laws Co. v. Robert & Co. Associates

• Decision Date: 14 September 1973
• Docket Number: Nos. 48387,No. 2,48388,s. 48387,2
• Citation: 201 S.E.2d 654,129 Ga.App. 881
• Parties: PINKERTON & LAWS COMPANY v. ROBERT & COMPANY ASSOCIATES et al. ROBERT & COMPANY ASSOCIATES et al. v. PINKERTON & LAWS COMPANY
• Court: Georgia Court of Appeals

Page 654

201 S.E.2d 654

129 Ga.App. 881

PINKERTON & LAWS COMPANY v. ROBERT & COMPANY ASSOCIATES et al.

ROBERT & COMPANY ASSOCIATES et al. v. PINKERTON & LAWS COMPANY.

Nos. 48387, 48388.

Court of Appeals of Georgia, Division No. 2.

Sept. 14, 1973.

Rehearing Denied Oct. 11, 1973.

Swift, Currie, McGhee & Hiers, George W. Hart, Atlanta, for appellant.

Savell, Williams, Cox & Angel, Edward L. Savell, William S. Goodman, Atlanta, for appellees. Syllabus Opinion by the Court

HALL, Presiding Judge.

This case comes before us yet again, after a laborious trek through this and other courts as reflected in the following decision: Covil v. Robert & Company Associates, 112 Ga.App. 163, 144 S.E.2d 450 (1965); Robert & Company Associates v. Covil, 113 Ga.App. 387, 147 S.E.2d 825 (166), rev'd on cert. to the Court of Appeals, Hagan v. Robert & Company Associates, 222 Ga. 469, 150 S.E.2d 663 (1966); Robert & Company Associates v. Pinkerton & Laws Company, 120 Ga.App. 29, 169 S.E.2d 360 (1969); Robert & Company Associates v. Pinkerton & Laws Company, 124 Ga.App. 309, 183 S.E.2d 628 (1971).

The decision in 120 Ga.App. 29, 169 S.E.2d 360 sets forth our 1969 determination of the claim stated by Robert & Co. against Pinkerton and reviews the pertinent background of the litigation which will not be repeated here. Subsequently the case went to trial. Pinkerton now appeals from the decision of the trial court which, sitting without a jury, awarded recovery to Robert & Co. on an indemnity agreement. Robert & Co. brings a cross appeal from the trial court's order refusing to award attorney fees to Robert & Co. for Pinkerton's stubborn litigiousness. On oral argument, however, counsel withdrew the claim for attorney fees, and now presses only the motion heretofore filed for ten percent damages on the ground that Pinkerton's appeal is taken for delay only.

1. Pinkerton alleges error in the trial court's overruling its motion for judgment made on the ground that (a) the indemnity agreement here sued on was contrary to public policy as a contract of adhesion and should not be enforced, and that (b) the fact that Robert & Co. obtained insurance against liability for negligence shows the intent of the parties to the indemnity agreement that Robert & Co. was not intended to be indemnified against liability for its own negligent acts.

It is sufficient to answer subpart (a) to note that all the circumstances regarding the relative bargaining positions of the parties to the indemnity agreement were known to Pinkerton before either of the two prior appeals reflected in Volumes 120 and 124 of this court's decisions. The appeal in Volume 124, though taken by Robert & Co., dealt with Pinkerton's public policy attack on the indemnity agreement on another ground. Pinkerton could have pressed the instant point on its motion below and in the prior appeal even though it was the appellee, as an added reason for the claimed invalidity of the indemnity agreement, and it did not; and therefore it is barred from doing so now. R.O.A. Motors, Inc. v. Taylor, 220 Ga. 122, 137 S.E.2d 459. 'No party, plaintiff or defendant, is permitted to stand his case before the court on some of its legs, and if it falls, set it up again on the rest in a subsequent proceeding, and thus evade the bar of the former judgment . . . He must discharge all his weapons, and not reserve a part of them for use in a future rencounter (sic). He must realize that one defeat will not only terminate the campaign, but end the war.' (Emphasis supplied.) Perry v. McLendon, 62 Ga. 598, 604; quoted in Southern R. Co. v. Overnite Transportation Co., 225 Ga. 291, 292, 168 S.E.2d 166.

The law of the case, Code Ann. § 81A-160(h), as established in 120 Ga.App. 29, 169 S.E.2d 360, decides subpart (b) against Pinkerton. This court clearly held at p. 32, 169 S.E.2d at p. 363 that 'it was the intention of the parties that Pinkerton should indemnify Robert & Co. Associates irrespective of whether any claim arose by reason of the negligence of Robert & Company Associates, or for other reasons.' (Emphasis supplied.) The intention of the parties on the point Pinkerton seeks to press has been decided, and this enumeration of error is without merit.

2. Pinkerton alleges that the trial court erred in admitting opinion testimony by three attorneys involved on both sides of the litigation on the issue of the 'legal liability' of Robert & Co. to the initial plaintiffs, the homeowners whose property suffered water damage traceable to the construction project.

Pinkerton takes the position that Georgia law requires that Robert & Co. prove its own negligence by expert architectural or engineering testimony, and that the record shows an absence of such proof. Pinkerton founds its position, however, on the inapropriate premise that negligence is the key to this lawsuit. It is not. The portion quoted above from this court's opinion beginning at 120 Ga.App. 29, 169 S.E.2d 360 established as the law of the case that the applicability of the indemnity agreement was not limited to Robert & Co's. negligent acts. What was required to entitle Robert & Co. to recover under the indemnity was that it be 'defending actions having a probable basis on which to establish legal liability' 120 Ga.App. at page 33, 169 S.E.2d at page 364, in light of the earlier pronouncement that this liability might arise 'by reason of . . . negligence . . . or for other reasons.' Id. at 32, 169 S.E. at 363.

Because it was not required that negligence be shown, there was no necessary requirement for expert testimony from architects and engineers. Therefore, there was no failure of proof because of the absence of such testimony. Nor was it error to admit the testimony of the three lawyers on the subject of liability. 'The opinions of experts, on any question of science, skill, trade, or like questions, shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.' Code § 38-1710. The question whether a purported expert shall be allowed to testify as such is within the sound discretion of the trial court, and such discretion, unless abused, will not be interfered with. Rouse v. Fussell, 106 Ga.App. 259(4), 126 S.E.2d 830. When this court had already ruled that the liability of Pinkerton to Robert & Co. would exist by virtue of Robert & Co's. negligent acts or for other reasons, we see no abuse of discretion in the trial judge's permitting this testimony from attorneys on both sides of the original suits concerning their estimates of Robert & Co's. potential legal liability, particularly in light of the fact that the second trial by plaintiffs met with a hung jury.

3. Pinkerton next enumerates as error the trial court's overruling its motion for judgment made on the ground that the plans and specifications of Robert & Co. were prepared prior to Pinkerton's...