Zeeman Manufacturing Co. v. L. R. Sams Co.

179 S.E.2d 552, 123 Ga. App. 99, 1970 Ga. App. LEXIS 738
CourtCourt of Appeals of Georgia
DecidedNovember 16, 1970
Docket45748
StatusPublished
Cited by17 cases

This text of 179 S.E.2d 552 (Zeeman Manufacturing Co. v. L. R. Sams Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zeeman Manufacturing Co. v. L. R. Sams Co., 179 S.E.2d 552, 123 Ga. App. 99, 1970 Ga. App. LEXIS 738 (Ga. Ct. App. 1970).

Opinions

Eberhardt, Judge.

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 an applicable statute, the day of the act, event, or default from which the designated period of time begins 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 how promptly appellants may have paid the costs.

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 [101]*101Moore’s Federal Practice, § 6.06. Quoting from this section of Moore and a federal case there cited, we held in Davis v. U S. Fidel. &c. Co., 119 Ga. App. 374 (167 SE2d 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 limitation. We followed Davis v. U. S. Fidel. &c. Co., 119 Ga. App. 374, supra, in Schaefer v. Mayor &c. of Athens, 120 Ga. App. 301 (5) (170 SE2d 339), where we held that "Code Ann. § 81A-106 (a) provides for the computations of time applicable to proceedings after commencement of the action.”

The preparation and transmittal of the record, whether it be thought of as part of trial practice or as part of appellate practice, is, of 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 decison. 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.

Enumerations of error 3 and 4 raise the issue of whether the lessor estfiblished 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 SE2d 740).

Appellants-lessees, in their brief, have taken up 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 [102]*102that 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 Ga. Stainless Steel Corp. v. Bacon, 120 Ga. App. 239 (170 SE2d 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 re-rafter 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 is not entitled to replacement of an old structure without deduction for depreciation of the old one. Polk v. Fulton County, 96 Ga. App. 733, 736 (101 SE2d 736); State Hwy. Dept. v. Murray, 102 Ga. App. 210, 213 (115 SE2d 711); Mercer v. J. & M. Transportation Co., 103 Ga. App. 141, 143 (118 SE2d 716); Marcy v. City of Syracuse, 199 App. Div. 246 (192 NYS 674); Vaughan v. Mayo Milling Co., 127 Va. 148 (102 SE 597); Sweezy v. Collins Northern Ice Co., 171 Mich. 75 (137 NW 84); Yates v. Dunster, 11 Exch. 15 (156 Eng. Rep. 726).

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., 109 FSupp. 28, 38), and normal "[wjear 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 F2d 487; The G. G. Post, (WD NY, 1945) 64 FSupp. 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 F2d 83; The G. G. Post, supra.” Moran Towing Corp. v. M. A. Gammino Const. Co., (1 Cir. 1966) 363 F2d 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. [103]*103104 (23 S 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 accidental acts.

The lease specifically provides that "lessee shall maintain the interior of the premises,” and under the rule of inclusio unius est exclusio alterius maintenance of the exterior remained the obligation of the lessor. Code § 61-111.

The lease also provides that the "lessor shall maintain the roof, structural portions of the building, and the improvements placed thereon by the lessor during the terms of this lease..

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Abernethy v. Cates
356 S.E.2d 62 (Court of Appeals of Georgia, 1987)
Southern Trust Insurance v. First Federal Savings & Loan Ass'n
310 S.E.2d 712 (Court of Appeals of Georgia, 1983)
Mansell v. Benson Chevrolet Co.
302 S.E.2d 114 (Court of Appeals of Georgia, 1983)
Dendy v. Metropolitan Atlanta Rapid Transit Authority
293 S.E.2d 372 (Court of Appeals of Georgia, 1982)
Almond v. Metropolitan Atlanta Rapid Transit Authority
288 S.E.2d 129 (Court of Appeals of Georgia, 1982)
Pharr v. Burnette
280 S.E.2d 881 (Court of Appeals of Georgia, 1981)
Raybestos-Manhattan, Inc. v. Friedman
275 S.E.2d 817 (Court of Appeals of Georgia, 1981)
McCain v. Smith
271 S.E.2d 646 (Court of Appeals of Georgia, 1980)
Horton v. Georgia Power Co.
254 S.E.2d 479 (Court of Appeals of Georgia, 1979)
Leathers v. Gilland
234 S.E.2d 336 (Court of Appeals of Georgia, 1977)
Warrick v. Mid-State Homes, Inc.
228 S.E.2d 234 (Court of Appeals of Georgia, 1976)
Malcolm v. Cotton
197 S.E.2d 760 (Court of Appeals of Georgia, 1973)
Redman Development Corp. v. West
193 S.E.2d 213 (Court of Appeals of Georgia, 1972)
Western Geophysical Co. of America v. Rowell
190 S.E.2d 921 (Court of Appeals of Georgia, 1972)
Zeeman Manufacturing Co. v. L. R. Sams Co.
179 S.E.2d 552 (Court of Appeals of Georgia, 1970)

Cite This Page — Counsel Stack

Bluebook (online)
179 S.E.2d 552, 123 Ga. App. 99, 1970 Ga. App. LEXIS 738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zeeman-manufacturing-co-v-l-r-sams-co-gactapp-1970.