Bell v. Samaritano

396 S.E.2d 520, 196 Ga. App. 612, 1990 Ga. App. LEXIS 993

• Court: Court of Appeals of Georgia
• Decided: July 11, 1990
• Docket: A90A0589
• Status: Published

Opinions

Deen, Presiding Judge.

The appellants, Rhonda Bell, Loyd Richard Deaver and Olen Pirkle Smith are hairdressers who formerly worked in a shop owned by the appellee, Mario Samaritano. Deaver rented space to open his own hairstyling shop approximately one mile from Samaritano’s and Bell and Smith joined him at that new place of business. All three appellants resigned on the same day and Bell and Smith took with them certain index cards containing the names and addresses of customers and, most importantly, bearing notations as to the proper formulas for chemical processing administered to customers, such as permanent waves and hair coloring. The appellants filed separate claims against Samaritano for wages allegedly owed to them for their last week of work. Samaritano counterclaimed for conversion of the chemical processing cards which he claimed belonged to him. The cases were consolidated for trial. At trial, in addition to the claim for conversion, Samaritano also presented evidence to support a claim for tortious interference with contractual relations for the hiring away of his former employees. The trial court directed a verdict to the appellants as to the wages owed them and the jury returned a verdict of $24,067 actual damages and $15,000 punitive damages on Samaritano’s counterclaim. Bell, Deaver, and Smith appeal.

1. Sufficient evidence was presented to create an issue for jury determination as to whether defendant-in-counterclaim Deaver was liable as a joint tortfeasor with the other two defendants-in-counterclaim and whether defendants-in-counterclaim Bell and Smith were liable for conversion of property allegedly belonging to plaintiff-in-counterclaim Samaritano for removing customer cards from his place of business.

2. Although the appellants acknowledge that they expressly acquiesced to the jury instructions given by the trial court by stating, in response to the trial court’s inquiry, that they had no objection to the jury charge, they contend that their enumerations of error regarding the jury instructions should be addressed pursuant to OCGA § 5-5-24 (c).

In Irvin v. Oliver, 223 Ga. 193, 196 (2) (154 SE2d 217) (1967), the Supreme Court construed the predecessor to OCGA § 5-5-24 (c) as referring “only to the failure to make objection to the charge, and not to those instances where the giving of an instruction, or the failure to give an instruction, is . . . specifically acquiesced in by counsel.” The Supreme Court did not differentiate between cases where counsel acquiesced in the giving of a charge and cases where counsel acquiesced in the failure to give a particular charge. If counsel expressly acquiesces in the jury charge as given, any objection to either the inclusion or the omission of a particular charge is waived. Under Irvin v. Oliver, supra, the appellants waived any objection to the jury charge.

3. The appellants also contend that the trial court erred in overruling their objection to the opinion testimony of an expert witness for Samaritano. The record shows that counsel for Samaritano asked the witness a question about the value of a customer list, which prompted an objection from the appellants asserting lack of foundation. The trial court instructed Samaritano’s counsel to rephrase the question, which he did, and the witness answered the question without further objection by the appellants. Under these circumstances, the appellants preserved no objection for review.

Judgment affirmed.

McMurray, P. J., Banke, P. J., Birdsong and Beasley, JJ., concur. Carley, C. J., concurs in the judgment only. Sognier, Pope and Cooper, JJ., dissent.