Rome Builders Supply, Inc. v. Rome Kraft Co., 39038
| Decision Date | 28 September 1961 |
| Docket Number | No. 39038,No. 2,39038,2 |
| Parties | ROME BUILDERS SUPPLY, INC. v. ROME KRAFT COMPANY |
| Court | Georgia Court of Appeals |
Covington, Kilpatrick & Storey, J. S. Kilpatrick, Rome, for plaintiff in error.
Matthews, Maddox, Walton & Smith, John W. Maddox, Rome, for defendant in error.
Syllabus Opinion by the Court
1. Rulings on pleadings must be the subject of direct exception and cannot be considered as special grounds of a motion for a new trial. Bennett v. Patten, 148 Ga. 66(3-a), 95 S.E. 690; Redwine Bros. v. Street, 18 Ga.App. 77(1), 89 S.E. 163. The first special ground of the motion for a new trial cannot be considered by this court.
2. Where a special ground of a motion for a new trial complains of the exclusion of evidence on objection to a question asked on direct examination, but fails to state the answer expected or show its relevancy to the movant's case, it is too incomplete for consideration by this court. Bowden v. Bowden, 125 Ga. 107(1), 53 S.E. 606. Special grounds 2 and 3 are subject to the objection urged against them.
3. Contracts indemnifying one against the consequences of his own negligence are not favored, but will be given effect where the intent is expressed in plain and unequivocal terms. Bohannon v. Southern Railway Co., 97 Ga.App. 849, 104 S.E.2d 603. A provision in a contract by which the plaintiff in this case agreed that 'in all of its operations hereunder' it would hold the defendant 'free from any claim and/or liability of any kind or character in connection therewith' is a waiver by the plaintiff of its right to sue the defendant for the defendant's negligence in connection with any of the operations of the plaintiff under the contract, but does not extend to negligence of the defendant not connected with an operation of the plaintiff.
4. The plaintiff further agreed under the contract to deliver substantially all pine chips manufactured by it to the defendant and 'agrees to so deliver all such pine chips, by trailer trucks with the regularity of the normal production of such chips, into the receiving docks of said second party at its plant at Krannert, Georgia.' The defendant filed a special plea in bar alleging that by reason of the indemnity clause of the contract defendant was discharged from any liablity in connection with the damage to plaintiff's trailer sued for and which damage the petition showed to have resulted during the delivery of chips to the defendant. This issue was by agreement separately tried before a jury and a verdict was directed in favor of the defendant, which ruling is assigned as error in the amendment to the motion for a new trial.
Since it appears from the contract terms that the plaintiff's operation ended when its chips were delivered into the receiving docks, the question at issue was whether such delivery had been made when the damage occurred. The evidence shows that the plaintiff delivered the chips by tractor-trailer and at the defendant's plant they were transferred to a hopper and conveyor belt and moved into the processing system. The only evidence from which it might be determined what the 'receiving docks' referred to in the contract meant, delivery into which constituted the end of the plaintiff's operations, was supplied by the defendant as follows: ...
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