DocketNumber： A90A0552
Citation Numbers： 195 Ga. App. 688, 394 S.E.2d 545, 1990 Ga. App. LEXIS 679
Judges： Deen
Filed Date： 4/19/1990
Status： Precedential
Modified Date： 11/8/2024
This case made a prior appearance in this court as Alimenta Processing Corp. v. South Georgia Pecan Co., 185 Ga. App. 330 (364 SE2d 84) (1987), and the facts are set forth therein. In Alimenta, this court reversed the grant of summary judgment to South Georgia Pecan Company (SGP), holding that there were issues of fact to be resolved, particularly as to the insurance coverage for the loss. After a jury trial, a verdict in the amount of $217,000 was returned in favor of Alimenta. SGP’s motions for a judgment n.o.v. and a new trial were denied, and it appeals.
1. SGP claims that Alimenta intended to be protected only by its own insurance because SGP’s insurance did not include coverage against Alimenta’s loss. Appellant claims that the opinion in the prior
Alimenta does not deny that its “all perils” policy covered the loss or that it recovered 50 percent of its claim from its insurance carrier. SGP claims that the entire loss was covered by the policy. The extent of Alimenta’s insurance coverage, however, is relevant only if the parties intended Alimenta to look exclusively to its own policy in the event of a loss. The jury verdict indicates that this and the other two issues were resolved adversely to SGP. In our prior opinion this court held: “[I]f the ‘warehouse legal liability insurance’ provided by [SGP] covers damage to [Alimenta’s] property, it may be looked to by [Alimenta] even if it was the intent of the parties to look solely to insurance. . . . This issue may perhaps be resolved by looking at the policy actually purchased by [SGP].” Id. at 332. That policy covers “liability imposed upon [SGP] as a warehouseman or bailee, for loss or destruction of or damage to personal property of others contained in the premises. ...” As this court noted in the prior opinion at 332, paragraph 7 requires SGP “to provide and maintain both ‘general liability insurance and a warehouse legal liability insurance policy in form and substance acceptable to [Alimenta]. . . .’” SGP, however, argues that the lease was modified after its execution, when SGP began sending Alimenta preprinted receipts which contained language that contradicted the lease on risk allocation. The only trial testimony on this subject shows that the purpose of the receipts was to account for the quantity of peanuts stored, and for Alimenta to use in obtaining bank loans requiring the stored peanuts as security. There was no evidence that the receipts were used to modify the terms of the lease.
The trial court correctly submitted the issues relating to allocation of the risk under the lease provisions to the jury, and the jury’s verdict is consistent with the evidence.
2. For the reasons set forth in Division 1, above, it was not error for the trial court to admit SGP’s liability insurance policy into evidence.
3. The trial court did not err in charging the jury, on bailment and negligent performance of contract.
OCGA § 44-12-40 defines a bailment as “[A] delivery of goods or property upon a contract, express or implied, to carry out the execution of a special object beneficial either to the bailor or bailee or both and to dispose of the property in conformity with the purpose of the trust.” SGP’s argument that the existence of the lease negates the existence of a bailment relationship is without merit. The entrustment of goods to a warehouseman pursuant to a contract creates a
As to the jury charge on negligent performance of contract, we note that the pleadings did not set forth that issue and the copy of a pretrial order included in the record on appeal did not set forth that theory. We further note, however, that the pretrial order was never filed with the court, as it bears no indication that it was filed.
Evidence on the issue of negligent performance of contract was received without objection. “ ‘[T]he parties may, by express consent, or by the introduction of evidence without objection, amend the pleadings at will. . . . [I]ssues tried by express or implied consent shall be treated as if raised by the pleadings.’ ” McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 514 (250 SE2d 424) (1978). We also note that the court charged the jury that negligent performance of a contract may be a tort and further expanded upon this legal theory in its charge. Alimenta pleaded both breach of contract and, in the alternative, tort as its theory of recovery. As there was evidence of negligent performance of the contract, it was not error for the court to so charge the jury.
4. In its final enumeration of error SGP contends that the jury verdict was not authorized by the evidence. In its pleadings Alimenta sought $245,156.63 in damages. The verdict was within the range of the evidence presented at trial as to the extent of Alimenta’s loss.
Judgment affirmed.