ARGUED MARCH 6, 1968.
DECIDED APRIL 10, 1968. REHEARING DENIED APRIL 29, 1968.
Action for damages. Fulton Civil Court. Before Judge Williams.
Arnall, Golden Gregory, H. Fred Gober, for appellant.
Huie Harland, Harry L. Cashin, Jr., Terrill A. Parker, for appellee.
1, 2. The trial judge did not err in excluding from the evidence two letters offered by the plaintiff.
3. In order to preserve issues for review by this court under the provisions of Section 17 (a, b) of the Appellate Practice Act, as amended, relating to the failure to instruct the jury, nothing appearing to bring such matters under the provisions of Section 17 (c) of the Act, it must appear that proper objection was made after the court instructed the jury and before the jury returned its verdict.
4. It is not error to refuse to allow one party to an action to call as an adverse witness, for the purpose of cross examination, a former employee of the other party, even though while so employed he was an agent within the sense of the term as used in Code Ann. § 38-1801. The relationship to the opposing party must exist at the time the witness is called for such examination. Whatever the ruling of the lower court, however, prejudice will not be presumed in allowing or refusing cross examination, and it is incumbent on an appellant to show some basis for harmful error.
5. The trial court properly instructed the jury on the meaning of former Code Ann. § 96-307 (1) to the effect that "use intended" refers to the use commonly intended and for which the seller manufactured the article, as distinguished from the use intended by the purchaser, even though known to the seller.
6. The remaining enumerations are without merit.
ARGUED MARCH 6, 1968 — DECIDED APRIL 10, 1968 — REHEARING DENIED APRIL 29, 1968 — CERT. APPLIED FOR.
Atlanta Americana Motor Hotel Corporation sued Guaranteed Waterproofing Company and Sika Chemical Corporation in Fulton Civil Court, seeking damages for the cost of removing and replacing an allegedly unsatisfactory epoxy surface coating on the concrete driveway, entrance, ramps, and pool deck of its premises in Atlanta. The prime contract for construction of Americana's motor hotel specified the use of Sika Surface Kote, manufactured by Sika, and a one year guarantee from the party responsible for application. Guaranteed, as a subcontractor, purchased the product from Sika and applied it to the concrete surfaces in the spring of 1962. Guaranteed furnished the prime contractor with a written guarantee from leaks for one year, and agreed to repair or replace any unsatisfactory or faulty surface at no expense to the owner. The prime contractor settled with Americana, and transferred this guarantee to Americana without recourse. Americana obtained a default judgment against Guaranteed. The trial court directed a verdict in favor of Sika on the first count of the amended petition, alleging the breach of an express warranty, and the jury found in favor of Sika on the second count, alleging the breach of an implied warranty. Judgment was entered for Sika, and Americana appealed after the overruling of its motion for new trial.
1. In the first enumeration Americana complains of the refusal to admit in evidence a letter purportedly written by a representative of Guaranteed to a representative of Sika, dated June 4, 1963, containing a narration of past events and statements made by various persons with respect to the problem and how to resolve it. The letter is replete with hearsay and self-serving declarations which the writer uses as a basis to blame Sika and exonerate Guaranteed, and to induce Sika to take action. Much of the content would have been inadmissible and subject to objection if offered in testimony by the writer as a witness, and the fact that it was offered as a written narration sent to a representative of the defendant does not elevate it to the status of admissible evidence. The trial judge properly excluded this letter from the evidence.
2. In the second enumeration Americana complains of the refusal to admit in evidence a letter dated October 19, 1962, purportedly from a representative of Sika to Guaranteed stating that the coating, when mixed with certain sand, had nearly the same coefficient of expansion as concrete, but somewhat greater, and suggesting that due to the brittle nature of the product flaking could occur under conditions of changing temperature. The writer informed Guaranteed that Sika recommended another product of greater elasticity for use in coating defective areas where flaking had occurred, which Sika had in production and was shipping to arrive in Atlanta during the week of October 29, 1962. Although it was brought out in the trial that Sika furnished this product to Guaranteed free of charge, there is nothing in the letter, even if the statements therein were made by authority of Sika, which constitutes an admission by Sika of the breach of any implied warranty in the product originally supplied. In essence, the letter merely shows an effort on the part of Sika to assist Guaranteed in correcting any deficiency in the original application, whatever the cause, by suggesting the use of another product, and a speculative opinion, not shown to be that of an expert, as to the possible cause of the failure of the original coating to adhere to the concrete in some places, an event which had long since taken place. It in no way discloses that the product originally furnished was defective and not precisely what it purported to be, Sika Surface Kote, having certain known characteristics, as manufactured and marketed for certain uses by Sika, or that it was not the product which Americana had specified for use in its prime contract. Accordingly, we consider the letter without probative value in establishing any liability of Sika for breach of an implied warranty in supplying the coating originally used by Guaranteed. The trial judge also properly excluded this letter.
3. Americana complains in the third through the sixth enumeration of the refusal to give certain requested instructions, as to which the trial judge conducted a hearing and disclosed his "proposed action" to reject the requests, as required under Section 17 (b) of the Appellate Practice Act of 1965, as amended, but there is nothing to show a proper objection to the failure to give instructions after the court instructed the jury and before the jury returned a verdict, so as to meet the requirements of Section 17 (a) of the Act as to asserted error not within the exception under Section 17 (c) of the Act. See Ga. L. 1965, pp. 18, 31; 1966, pp. 493, 498; Code Ann. § 70-207; Southwire Co. v. Franklin Aluminum Co., 114 Ga. App. 337, 338 (2) ( 151 S.E.2d 493); Nathan v. Duncan, 113 Ga. App. 630, 638 ( 149 S.E.2d 383). Nothing appears to bring the enumerations within the scope of Section 17 (c) of the Act, which eliminates the necessity of an objection to instructions which show substantial error as a matter of law, explained in a recent holding of this court as "blatantly apparent and prejudicial to the extent that it raises the question of whether the losing party has, to some extent at least, been deprived of a fair trial because of it." Hollywood Baptist Church v. State Hwy. Dept., 114 Ga. App. 98, 100 ( 150 S.E.2d 271). Accordingly, these enumerations require no further consideration.
4. In the seventh enumeration Americana complains of the refusal of the court to allow it to call a witness, a former employee of Sika, for the purposes of cross examination, thus restricting Americana to direct examination of this witness. The witness was district sales manager of the Southeastern District for Sika from January of 1958 until May of 1964, and had represented Sika in the transaction here involved, including efforts to assist Guaranteed in eliminating the defective condition of the original application of Sika Surface Kote. Code Ann. § 38-1801 allows a party to call for cross examination "the opposite party, or any one for whose immediate benefit such suit is prosecuted or defended, or any agent of said party, or agent of any person for whose immediate benefit such suit is prosecuted or defended, or officer or agent of a corporation when a corporation is such party, or for whose benefit such suit is prosecuted." In Atlanta Joint Terminals v. Knight, 98 Ga. App. 482, 485 ( 106 S.E.2d 417), this court, in upholding the ruling of the lower court allowing the plaintiff to call employees of the defendant for cross examination, pointed out that "[a]ll of the witness involved were, at the time of the occurrence complained of and at the time of the trial, employees of the defendant or of one of the corporate partners of the defendant, and, as such, were subject to all of the pressures and possible prejudices in favor of the defendant which that relationship would tend to engender." No Georgia case has come to our attention where it was held to be error to refuse to allow a party to call for cross examination a former employee, even though while employed he may have been an agent of the opposite party within the sense of the term as used in Code Ann. § 38-801, supra, although it may be error, as an abuse of discretion, to allow a party to call an employee of the other party for cross examination on irrelevant matters, irrespective of whether his actions were within or outside his authority as an agent. See State Hwy. Dept. v. Ball, 112 Ga. App. 480, 484 ( 145 S.E.2d 577). The decisions under similar statutes or rules in other jurisdictions vary. See the annotation, 56 ALR2d 1108; 58 AmJur 313, Witnesses, § 560; 98 CJS 112, 113, Witnesses, § 367. We think the real purpose of the Georgia statute, as suggested in the Atlanta Joint Terminals case, supra, is that of allowing a party to call for cross examination those persons who by reason of a relationship within the terms of the statute existing at the time of the examination are subject to "all of the pressures and possible prejudices . . . which that relationship would tend to engender," and that where such relationship is no longer in existence it is not error, in the absence of any basis other than a former relationship, to refuse to allow the party calling the witness to treat such person as an adverse witness. In this connection, see Snelling State Bank v. Clasen, 132 Minn. 404 ( 157 NW 643), involving the same result under a similar statute. Furthermore, we find nothing to disclose that the testimony of the witness would have varied had he been subjected to cross examination by the complaining party, and we think that, whatever the ruling by the lower court, it is incumbent on the complaining party on appeal to show something more than the presumed possibility of prejudice where the issue is that of refusing or allowing cross examination.
5. The eighth and ninth enumerations are directed to the instructions of the court defining "use intended" in reference to an implied warranty. The case arose before the effective date of the Uniform Commercial Code and the court instructed the jury, after quoting former Code Ann. § 96-307 through Subdivision 1, as follows:
"I charge you that this section requires the manufacturer to warrant that the article manufactured and sold is reasonably fit for the purpose anticipated for the article, or materials, or goods; and that the warranty extends from the manufacturer to the ultimate consumer.
"Now, in connection with that code section and in connection with that charge that I have just given you, I also charge you that the warranty implied by law, that an article or articles sold are reasonably suited to the use intended, refers not to any particular intended use by the purchaser, even if such intended use is made known to the seller, but to any use for which the article or articles sold are commonly intended. There is no implied warranty that the thing sold will be suited to the purposes of the buyer.
"I likewise charge you that to recover damages on account of the alleged breach of an implied warranty of merchantability and suitability to the use intended of the Sika Surface Kote alleged to have been manufactured by the defendant, the use intended means not the particular use intended by the purchaser, even though known to the seller, but means only such uses as the article may have been manufactured for by the Sika Chemical Corporation."
Unlike the situation ruled upon in Division 3 of this opinion, counsel for the plaintiff did note a renewal of objections after the court had instructed the jury with respect to the defendant's requested instructions, Nos. 2 and 3, which are in substance the content of the second and third paragraphs of the foregoing excerpt, and when viewed with the objections previously made, we consider the action sufficient to preserve as an issue the definition of "use intended" in reference to an implied warranty.
The term appears in the same context in former Code § 96-301 (2) and former Code Ann. § 96-307 (1), the first stating an implied warranty in respect to a purchaser, and the second expressly extending an implied warranty from the manufacturer to the ultimate consumer, that "[t]he article sold is merchantable and reasonably suited to the use intended." The second paragraph of the excerpt is in language adapted from the second headnote of Love v. Nixon, 82 Ga. App. 445 ( 61 S.E.2d 423), defining the meaning in reference to former Code § 96-301, and the third paragraph is from language appearing in Mons v. Republic Steel Corp., 113 Ga. App. 135 ( 147 S.E.2d 473), relying upon the Love case as controlling the meaning under former Code Ann. § 96-307 (1). The instructions as given were properly adjusted to the pleadings and the evidence. These enumerations are without merit.
6. The remaining enumerations are without merit. The court did not err in directing a verdict for Sika on the first count in the absence of any proof of an express warranty; the jury was authorized under the evidence to find for Sika on the second count with respect to the breach of an implied warranty; no basis appears for any reason assigned for holding that the judgment is contrary to law, and the court did not err in overruling the motion for new trial.
Judgment affirmed. Pannell and Deen, JJ., concur.