Brooks v. Cellin Manufacturing Co. , 165 Ga. App. 375 ( 1983 )

Deen, Presiding Judge.

Sally Brooks and her daughter, Jodi, brought suit against Cellin Manufacturing Co., Inc.; Continental Broadcasting, Inc., d/b/a R. L. Page Insulation Co., Inc.; Gerald A. Blounder, David Berkman and Felix Dziewienski, individually and jointly d/b/a Tempo Management; and Royal Developers, Inc., alleging that their personal property was destroyed by a fire in the apartment building in which they resided and that the fire was caused by the negligence of the defendants in installing cellulose insulation in the attic of the building. They appeal following a jury verdict which responded to special interrogatories by finding negligence on the part of all the defendants except Cellin, but did not find that their negligence was the proximate cause of the fire.

1. The trial court did not err in refusing to allow counsel for the plaintiffs to introduce testimony concerning remedial measures taken by employees of the defendants after the fire.

In Ga. Sou. &c. R. Co. v. Cartledge, 116 Ga. 164 (42 SE 405) (1902), the court overruled prior case law and held that henceforth evidence of subsequent repairs or changes were not admissible in negligence cases for the purpose of proving that the defendant was negligent in not having made the repairs or taken precautions prior to the accident. The public policy for excluding such evidence is “that men should be encouraged to improve, or repair, and not be deterred from it by the fear that if they do so their acts will be construed into an admission that they had been wrongdoers.” Id. at 168. See also Atlantic C. L. R. Co. v. Sellars, 89 Ga. App. 293 (79 SE2d 35) (1953). Indeed, it is well-recognized that the usual purpose in seeking the admission of such evidence is for it to serve as the basis for the inference that the defendant impliedly admits his realization of negligence. Chastain v. Fuqua Industries, 156 Ga. App. 719 (275 SE2d 679) (1980); Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681 (178 SE2d 543) (1970). Recognized exceptions to this rule are set forth in Gunthorpe v. Daniels, 150 Ga. App. 113 (257 SE2d 199) (1979).

Appellants do not claim to come within these exceptions, but maintain that the appellees opened the door to testimony concerning subsequent acts of the appellees when an employee of Page Insulation, who testified that he had been involved by the installation of the insulation that was blown into the attics of the apartment buildings without regard to certain recess light fixtures and other heat sources, was asked: “To your knowledge, did any of the other buildings in the Tempo complex that you had installed insulation in prior to building C, to your knowledge did any fire occur in those buildings?” Appellants contend that they should have been permitted to ask the witness on cross-examination about the defendant’s acts following the fire in reentering the attics of the other buildings where insulation had been installed and removing it from over the recessed lights and other heat sources, and about the subsequent removal of all the cellulose insulation from the buildings. They contend that allowing the question to stand unrebutted left the impression with the jury that two out of the three buildings where cellulose insulation was piled up over heat sources did not have a fire. Counsel for appellee Continental Broadcasting, d/b/a R. L. Page Insulation, contends that the court reporter’s omission of a comma from the question in the transcript alters the meaning of her question as she intended to ask questions only about fires prior to the fire in building C. An examination of the record shows that the trial court carefully considered the evidence as it was presented and reviewed the case law and public policy favoring the exclusion of such evidence. We therefore are unable to say that his decision was unfair to either party and it will not be disturbed by this court.

2. The trial court did not err by failing to recharge the jury on all aspects of proximate cause. From the transcript it is apparent that the jury did not fully understand the term “proximate cause” after the court’s original charge and asked the court to redefine the term. After the recharge, the foreman responded “All right” and the jury retired to deliberate. Before the verdict was published, the court inquired: “Mr. Smith, before we take this verdict, I want to make something — I want to make sure of something. After your request for me to redefine proximate cause, did you understand, you believe the jury understood that definition?” The juror responded, “I do, sir.” The court: “As it applies to the entire charge?” Juror: “Right, sir.” Court: “This is that proximate cause, that intervening causes, joint causes, concurring causes, all of those, do you believe the jury understood all that?” Juror: “Yes, sir.” We find no error, as there is no evidence the jury did not understand the recharge. When the jury requests clarification of a specific point the court is not required to restate its entire charge; it is only required to give such parts as are necessary to answer the jury’s request. Elliott v. Floyd, 85 Ga. App. 416 (69 SE2d 620) (1952). See also Burnett v. Foster, 144 Ga. App. 443 (241 SE2d 319) (1978).

Judgment affirmed.

Shulman, C. J., Quillian, P. J., Birdsong and Sognier, JJ., concur. McMurray, P. J., Banke, Carley and Pope, JJ., dissent. Decided January 19, 1983 — Rehearing denied February 8, 1983 — William C. Lanham, Clark H. McGehee, for appellants. Robert L. Pennington, Joseph W. Watkins, Michael Goldman, N. Karen Deming, for appellees.