Simon v. McGee Plumbing & Elec. Co., s. 64976

• Decision Date: 12 November 1982
• Docket Number: Nos. 64976,65013,s. 64976
• Parties: SIMON v. McGEE PLUMBING & ELECTRIC COMPANY et al. FLANDERS v. McGEE PLUMBING & ELECTRIC COMPANY et al.
• Court: Georgia Court of Appeals

Page 388

299 S.E.2d 388

164 Ga.App. 667

SIMON v. McGEE PLUMBING & ELECTRIC COMPANY et al.

FLANDERS v. McGEE PLUMBING & ELECTRIC COMPANY et al.

Nos. 64976, 65013.

Court of Appeals of Georgia.

Nov. 12, 1982.

Rehearing Denied Dec. 6, 1982.

Certiorari Denied Jan. 26, 1983.

Millard B. Shepherd, Jr., Swainsboro, for appellants in No. 64976 and appellees in No. 65013.

J. Franklin Edenfield, Swainsboro, for appellees in No. 64976.

J. Franklin Edenfield, Robert S. Reeves, Swainsboro, for appellants in No. 65013.

QUILLIAN, Chief Judge.

In June of 1979 defendant A.O. Flanders and the plaintiff Mrs. Floye Y. Simon entered into a contract whereby the defendant was to construct a house for the plaintiff. Flanders sub-contracted with McGee Plumbing and Electric Company to do the plumbing, electrical wiring, heating and airconditioning work. On August 28, 1979, while the house was under construction, a fire occurred which did substantial damage to the house. Flanders was asked by Mrs. Simon's insurance carrier to give them an estimate on the damage and the cost to reconstruct the house. Flanders submitted a bid and contracted with Mrs. Simon to rebuild the house for $23,299.60. The insurance company, by use of a loan receipt, paid for the cost of rebuilding the house and after completion of construction brought this action in May of 1980 in Mrs. Simon's name against Flanders and McGee--whose negligence was alleged to have caused the fire.

McGee was properly served. A deputy sheriff attempted to serve Flanders at his home on May 24, 1980 but served his 17 year-old son who was living with his father. Flander's son was on his way to work and placed the complaint and summons in the mailbox. Flanders removed the complaint from his mailbox upon his return home and read it, but took no action. McGee answered and moved for summary judgment which was granted. Thereafter, McGee, or someone on his behalf, paid $4,500 to the insurance carrier to reduce the amount of damages sought to $18,799.60.

The insurance carrier's local agent called Flanders to notify him he was in default on this action. Flanders obtained an attorney and moved to open default--fourteen months after service. The Motion to Open Default was denied and trial was had on the amount of damages. The jury returned a verdict for "$1,879.96 or 10% of face amount." Plaintiff moved for judgment N.O.V. which was denied. Judgment was entered on the verdict and plaintiff Simon brings this appeal on the amount of the judgment. Defendant Flanders appeals from the denial of his Motion to Open Default. Held:

1. Proper service was made upon the defendant Flanders. Trammel v. National Bank of Georgia, 159 Ga.App. 850(1), 285 S.E.2d 590; Knox v. Landers, 160 Ga.App. 1(2), 285 S.E.2d 767. Code Ann. § 81A-155(b) provides three grounds for opening defaults--providential cause, excusable neglect, and where the court finds a proper case has been made for opening default. Axelrod v. Preston, 232 Ga. 836, 209 S.E.2d 178; Houston v. Lowes of Savannah, 235 Ga. 201, 219 S.E.2d 115. Providential cause is not involved in this case and the trial court found that a proper case had not been made for opening default. This leaves in issue whether Flanders' conduct established excusable neglect. " ' "Excusable neglect" does not mean gross negligence. It does not mean a wilful disregard of the process of the court, but refers to cases where there is a reasonable excuse for failing to answer.' " Deering Harvester Co. v. Thompson, 116 Ga. 418, 419, 42 S.E. 772. "In Brucker v. O'Connor, 115 Ga. 95, 96, 41 S.E. 245 the Supreme Court made it clear that if a party, on reading a writ, reaches the wrong conclusion and therefore pays no attention to the process and fails to answer his neglect is inexcusable and gross, and that the trial court has no authority to open a default for reasons which fall short of a reasonable excuse for the negligent failure to answer." Jordan v. Clark, 119 Ga.App. 18, 19, 165 S.E.2d 922; accord: Cate v. Harrell, 128 Ga.App. 219(3), 196 S.E.2d 155; Sanders v. American Liberty Ins. Co., 225 Ga. 796, 171 S.E.2d 539. The trial court did not err in refusing to open default.

2. " 'On consideration of an [appeal from] the denial of a motion for a judgment non obstante veredicto, the question before this court is not whether the verdict and judgment of the trial court was merely authorized, but is whether a contrary judgment was demanded ...' " Salley v. Hogan, 104 Ga.App. 876, 878, 123 S.E.2d 313. " 'In giving consideration to a motion for judgment notwithstanding verdict the court is concerned substantially with the same principles of law as are applicable upon consideration of the motion for directed verdict ... The question for determination is whether or not the evidence demands a verdict for movant [Cits.] and if there be any evidence to support the verdict returned denial of the motion...