Zeeman Mfg. Co. v. L. R. Sams Co., 45748

• Decision Date: 16 November 1970
• Docket Number: No. 45748,No. 2,45748,2
• Parties: ZEEMAN MANUFACTURING COMPANY, Inc. et al. v. L. R. SAMS COMPANY, Inc
• Court: Georgia Court of Appeals

Page 552

179 S.E.2d 552

123 Ga.App. 99

ZEEMAN MANUFACTURING COMPANY, Inc. et al. v. L. R. SAMS COMPANY, Inc.

No. 45748.

Court of Appeals of Georgia, Division No. 2.

Nov. 16, 1970.

Rehearing Denied Dec. 8, 1970.

Certiorari Denied Jan. 21, 1971.

Syllabus by the Court

1. CPA § 6(a) (Code Ann. § 81A-106(a)), providing that when the period of time prescribed or allowed by an applicable statute is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation, applies to the computation of time prescribed by Code Ann. § 6-808, providing that the clerk of the trial court shall transmit the record to the appellate court within five days after the date of filing of the transcript of evidence in his office.

2. The evidence was insufficient to support the verdict returned.

3. The failure to charge complained of in enumeration of error No. 2 was an obvious oversight by the trial court and is not likely to recur on another trial.

4. Any error committed by allowing the introduction of evidence complained of in enumeration No. 1 was waived by failure to object to other evidence to the same effect.

Appellants leased a building from appellee, agreeing to turn it back at the expiration of the lease 'in the same condition as when first occupied, normal wear and tear excepted.' After expiration of the lease appellee-lessor brought the present action, seeking to recover for damage claimed to be in excess of normal wear and tear. Specific dollar amounts of damage were alleged to have resulted from various specific injuries to the roof and ceiling, walls, windows, floors, doors, partitions, exhaust fans, heaters, columns, boiler, pipes, insulation, wiring, lighting system, water system, loading platform, etc. The jury rendered a verdict for the lessor, and lessees appeal from the judgment on the verdict.

Robinson, Buice, Harben & Strickland, B. Carl Buice, Gainesville, Kaler, Karesh, Rubin & Frankel, Samuel N. Frankel, Atlanta, for appellants.

Robert E. Andrews, Gainesville, for appellee.

EBERHARDT, Judge.

1. Appellee has moved to dismiss the appeal, asserting that there has been a delay in transmitting the record to this court because of the delay of appellants in paying the costs in the lower court. The stamp of the clerk of the lower court appearing on the face of the transcript shows that it was filed in his office August 20, 1970. Exhibits attached to the motion to dismiss show a statement of accrued costs dated August 20; a receipt for the paid costs dated August 25; and a receipt for registered mail transmitting the record to this court dated August 26. The certificates of the clerk as to the correctness of the record and transcript are dated August 20, and there is a certificate that the record was transmitted late without fault of counsel for either side, but due to a misapprehension on the part of the clerk as to when the record was to be transmitted.

Code Ann. § 6-808 provides that the clerk of the trial court shall transmit the record within five days after the date of filing of the transcript in his office. CPA § 6(a) (Code Ann. § 81A-106(a)) provides, inter alia: 'In computing any period of time prescribed or allowed by this Title, by the local rules of any court, (by order of court, or) ¹ by on applicable statute, the day of the act, event, or default from which the designated period of time begins The determination of what is an 'applicable statute' within the meaning of Rule 6(a) has received consideration by the federal courts in connection with various federal statutes. See generally 2 Moore's Federal Practice, § 6.06. Quoting from this section of Moore and a federal case there cited, we held in Davis v. United States Fidelity & Guaranty Co., 119 Ga.App. 374, 167 S.E.2d 214 that the phrase 'applicable statute' refers directly only to statutes applicable to proceedings had after the commencement of the action, and hence would not apply expressly to a statute of limitations. We followed Davis v. United States Fidelity & Guaranty Co., 119 Ga.App. 374, 167 S.E.2d 214, supra, in Schaefer v. Mayor & Council of City of Athens, 120 Ga.App. 301(5), 170 S.E.2d 339, where we held that 'Code Ann. § 81A-106(a) provides for the computations of time applicable to proceedings after commencement of the action.'

to run shall not be included. * * * When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.' (Emphasis supplied). August 22, 1970 was a Saturday, and August 23 a Sunday. Hence if CPA § 6(a) applies to the computation of time prescribed by Code Ann. § 6-808, the record was timely transmitted irrespective of now promptly appellants may have paid the costs.

The preparation and transmittal of the record, whether it be thought of as part of trial practice or as part of appellate practice, is, or course, a process occurring after commencement of the action. As a general proposition the computation of time provided for by Rule 6(a) has been held applicable unless a contrary policy is expressed in a governing statute or court decision. See generally 2 Moore § 6.06, supra, and cases cited. We know of no policy which would prohibit the time prescribed by Code Ann. § 6-808 from being computed as set forth in CPA § 6(a); and when the intermediate Saturday and Sunday are excluded, it is obvious that there was a timely transmittal. The motion to dismiss is denied.

2. Enumerations of error 3 and 4 raise the issue of whether the lessor established with sufficient particularity the dollar amount of any damages sustained. The applicable measure of damages in this type case is the reasonable cost of restoring the premises to the condition contemplated by the covenant; and, in order to recover under the complaint claiming only items of special damage, it was essential that the lessor prove the specific acts of waste or damage alleged and the reasonable cost of restoration in relation to the specific injuries shown. Spacemaker, Inc. v. Borochoff Properties, Inc., 112 Ga.App. 512, 145 S.E.2d 740.

Appellants-lessees, in their brief, have taken upn each separate item of damage claimed and have asserted that the proof wholly failed to meet the criteria of the Spacemaker case, supra. In response appellee-lessor has made only three references to particular pages of the transcript where it is contended evidence as to costs of repair or restoration can be found. We therefore must assume that there is no other evidence to substantiate claims of damage as to the injuries for which no specific reference is made. Rules of Court of Appeals, § 17(c)(3)C. 111 Ga.App. 883, 891. And see Georgia Stainless Steel Corp. v. Bacon, 120 Ga.Pp. 239, 170 S.E.2d 270.

Of the three references made, one is to testimony of a witness that the only way the roof could be repaired would be to tear the roof off and rerafter it, and that the cost of doing so would probably be $15,000. However, to award this amount would be equivalent to replacing an old roof with a new roof without allowance for depreciation prior to the inception of the lease and for 'normal wear and tear,' or depreciation, during the term of the lease. The courts have generally held in this context that the owner or lessor What does 'normal wear and tear' include? 'Normal' has been held to mean ordinary, usual, average, or the like, United States v. Fallbrook Public Utility Dist., D.C., 109 F.Supp. 28, 38, and normal '(w)ear and tear means normal depreciation. Green v. Kelley, 1945, 20 N.J.L. 544. No doubt what is 'normal' must be responsive to practices in the service for which the vessel is intended. New York, N.H. & H.R. Co. v. Delaware, L. & W.R. Co. (2 Cir.) 23 F.2d 487; The G.G. Post (W.D.N.Y., 1945) 64 F.Supp. 191. * * * The effects of negligence are not wear and tear, and they do not become wear and tear merely because they may be anticipated. Gorman Leonard Coal Co. v. Peninsular State S.S. Corp. (1 Cir. 1933) 66 F.2d 83; The G.G. Post, supra.' Moran Towing Corp. v. M. A. Gammino Const. Co. (1 Cir. 1966) 363 F.2d 108, 114. "Ordinary wear and tear' would include any unusual deterioration from the use of the premises' during the lease period, or the period of the lessee's occupancy. Waddell v. De Jet, 76 Miss. [123 Ga.App. 103] 104, 23 So. 437. Thus, as to all items which the lessor was not bound to maintain, when we exclude normal wear and tear, as the lease provides, the lessee is bound to replace or repair items which are broken, destroyed, or damaged by wilful, negligent or...