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Lawskills.com Georgia Caselaw
WOMACK INDUSTRIES, INC. et al. v. LOADSTAR, INC.
A92A0655.
POPE, Judge.
Action on contract. Franklin Superior Court. Before Judge Grant.
1. Two of plaintiffs' enumerations of error relate to the trial court's refusal to permit plaintiffs to introduce evidence of damages paid to the owner of the construction project as a result of construction delays which plaintiffs allege were due to defendant's breach. Even if the evidence was improperly excluded, the error was harmless in light of the jury's finding that defendant did not breach the contract, since the evidence related only to damages and not the defendant's alleged breach of contract.
2. We reject plaintiffs' argument that the trial court erred in denying their witness the opportunity to utilize a document to refresh his recollection of a telephone conversation with an employee of the defendant. Since the witness testified he recalled the specifics of the conversation, no need was shown for the use of the document to refresh the witness' recollection.
3. We reject plaintiffs' argument that the trial court erred in ordering the jury to disregard the testimony of one of plaintiffs' witnesses that an employee of defendant came to the job site to view the materials plaintiffs claimed were defective and yet defendant failed to remedy the defect. The record shows the witness was ultimately permitted to testify that after defendant's employee viewed the materials, defendant made no repairs to the materials and did not advise plaintiffs how to treat the problem.
4. Finally, plaintiffs argue the trial court erred in allowing defendant's witness to testify concerning a written notice he said defendant sent to plaintiffs concerning defendant's policy for repairing defects or damage to materials even though the written notice was not produced. Plaintiffs' enumeration of error apparently attempts to raise an objection on the ground of the best evidence rule. That objection, however, was not raised at trial. An objection cannot be raised for the first time on appeal. See Bolden v. State, 150 Ga. App. 298 (3) (257 SE2d 367) (1979). The only objection raised by plaintiffs at the trial was that the testimony was "not germane." Assuming the plaintiffs intended to raise the issue of the relevance of the testimony, we conclude the testimony was relevant because it related to the issue of mitigation of plaintiffs' damages. Moreover, since the testimony related to damages, the admission of the testimony was at most harmless error since, as noted above, the jury specifically found the defendant did not breach the contract.
Adams, Clifton & Sanders, Janney E. Sanders, for appellee.
Walters, Davis, Smith, Meeks & Pittman, Thomas E. Pujadas, for appellants.
DECIDED JULY 6, 1992.
Thursday May 21 09:14 EDT


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