Smith v. Godfrey

• Decision Date: 27 June 1980
• Docket Number: No. 59920,59920
• Citation: 270 S.E.2d 322,155 Ga.App. 113
• Parties: SMITH v. GODFREY et al.
• Court: Georgia Court of Appeals

Page 322

270 S.E.2d 322

155 Ga.App. 113

SMITH v. GODFREY et al.

No. 59920.

Court of Appeals of Georgia.

Argued May 6, 1980.

Decided June 27, 1980.

Jerry Willis, Allen B. Keeble, La Grange, for appellant.

David H. Tisinger, Carrollton, Arnold Wright, Jr., A. Timothy Jones, John H. Stanford, Jr., Atlanta, L. Lin Wood, Jr., Macon, for appellees.

DEEN, Chief Judge.

The appellant suffered a fire that destroyed his home and furnishings under circumstances which strongly indicated by circumstantial evidence that the blaze originated in the plaintiff's attic where the defendant Godfrey, a service contractor, with the aid of the co-defendants, the retailer Mechanical Equipment Co. and the manufacturer Friedrich Air Conditioning and Refrigeration Co. were variously concerned in the repair of a heating and air conditioning system in consequence of a bad compressor in the heat pump. The trial resulted in a verdict in favor of all defendants and the plaintiff appeals.

1. The court charged: "The duty of the defendant manufacturer in this case was to produce a machine which met the measure of care adopted by industry generally and as fixed by the general custom of the trade . . . (The) plaintiff has the burden of proving to your satisfaction by a legal preponderance of the evidence that the defendant manufacturer failed to produce a machine which met the measure of care adopted by such industry generally and as fixed by the general custom of such industry as it existed when the machine was manufactured. Upon the failure of the plaintiff in this case to carry such a burden of proof, it would be your duty to return a verdict for the defendant manufacturer." (Emphasis supplied.) Code § 20-704(3) which sanctions reliance on the custom of a trade or business universally practiced is a rule for the construction of contracts, not for determining liability in tort actions. Wright v. Concrete Co., 107 Ga.App. 190(8), 129 S.E.2d 351 (1962). Most authorities support the rule that conformity to custom is not in itself the exercise of due care in negligence actions. 57 Am.Jur.2d 430, § 79. This standard was adopted in Moody v. Southland Invest. Corp., 126 Ga.App. 225, 233, 190 S.E.2d 578 (1972) holding that custom, while relevant and admissible in evidence on the issue of negligence, is not conclusive. To instruct the jury that if the plaintiff failed to prove by a preponderance of evidence that the equipment did not meet the standard fixed by the general custom of the industry they must find for the manufacturer, without consideration of whether ordinary care had been used in the design and manufacture of the equipment, placed too great a burden on the plaintiff, especially where the instructions failed to caution that the jury must also be persuaded that the custom or standard of the industry was itself an exercise of ordinary care.

The appellant, however, urges that any such error would be harmless because the evidence demands a verdict in favor of this defendant. We do not find the verdict was demanded. It is true that there is some uncontradicted expert testimony which would sustain the appellant's contention, but expert testimony is not absolutely obligatory on the jury, even where uncontradicted. Edge v. Edge, 134 Ga.App. 162, 213 S.E.2d 540 (1975). We do not agree that a verdict was demanded or that the error was harmless.

2. We do not find that the question of implied warranty sought to be added by the plaintiff to his pleadings after the conclusion of the evidence was an issue in the case as tried with the implied consent of the parties. It was therefore not error to refuse the amendment after the evidence had closed. Smith v. Smith, 235 Ga. 109, 114, 218 S.E.2d 843 (1975).

3. The court charged that if the...