author: Beasley, Judge.

text:
    76331.
    BRANDVAIN v. RIDGEVIEW INSTITUTE, INC. et al.
    (372 SE2d 265)
   Beasley, Judge.

Deborah Brandvain appeals the trial court’s grant of the defendants’ j.n.o.v. in this medical malpractice case. The issues on appeal relate to legal duty, causation, and preliminarily, j.n.o.v. procedure. Mrs. Brandvain sued individually and in her capacity as administratrix of her husband’s estate for his wrongful death by suicide while a patient at Ridgeview.

Viewed in the light favorable to the verdict and judgment, as we are required to do, Pendley v. Pendley, 251 Ga. 30, 31 (1) (302 SE2d 554) (1983), the evidence showed the following. Ridgeview Institute is a hospital specializing in the treatment of alcohol and drug abuse. It has a renowned program, including a component aimed specifically at health care professionals. One of the defendants, Dr. Douglas Talbott, an internist and addictionologist, is director of Ridgeview’s health professionals program which he began in 1976. He is a recovering alcoholic as is defendant Dr. Blevins, a psychiatrist, who was Walter Brand vain’s primary physician at Ridgeview. Walter Brandvain was a 31-year-old doctor in his second year of residency at Elmhurst Hospital in New York City. He and plaintiff were married in 1976. Plaintiff was aware of his frequent marijuana use and LSD experimentation over the years, but was unaware of other drug use until 1982, when he advised her that he had taken drugs from Elmhurst for his own use and was about to be discovered. The drugs included morphine. As a result of this, he was monitored by the doctors at the hospital, including drug testing, but allowed to complete his residency work that year. He was required to go into therapy, which he did with Dr. Brower beginning in April 1982, and to sit out a year of his residency at Elmhurst. During that year, he went into a psychiatric residency at Brookdale Hospital.

On Valentine’s Day 1983, Walter told plaintiff that he had been injecting drugs which he had ordered after obtaining his medical license and DEA number. He had used all of these, including Demerol and morphine, and had no more. She took him to Payne Whitney where he was admitted as an inpatient and stayed for two to three weeks. He then went to Hazelden, which specializes in alcohol and drug abuse. He left that program early due to his dislike of its Christian emphasis, he being Jewish. He then was admitted to the Mayo Clinic where he was treated for a chronic bladder problem, including shots of Demerol. He did not advise them of his drug abuse.

His new psychiatrist, Dr. Karkus, put him on methadone due to his cocaine and heroin addictions.

In November 1983, he and plaintiff went to Mexico, where Walter had attended medical school, for a month’s vacation. There, he began “acting strange.” After their return home, he began disappearing for long periods of time, using street heroin and cocaine even though still on methadone. Walter told his wife he had been considering suicide. She called another psychiatrist, Dr. Lefer, who admitted Walter that day to Roosevelt Hospital with a tentative diagnosis of manic depression. He placed him on Lithium and Walter was released. Walter then acknowledged to plaintiff that he had a drug problem and needed help. They checked various programs, all of which required patients to be detoxed from methadone before entering. Walter checked himself into the locked ward of the Smithers Institute of Roosevelt Hospital for detoxification on December 27. There, while attending an Alcoholics Anonymous meeting, he ran out of the meeting and was pursued by Dr. Gallegos, a recent patient of the Ridgeview program who was attending the meeting to assist his AA sponsor. He told Walter about Ridgeview and Walter called plaintiff who talked to Dr. Gallegos, who was in the process of moving to Atlantá to join the Ridgeview staff. She talked to Walter’s parents about the program and they were interested but concerned about the expense.

Shortly thereafter, Walter called her and' told her he had attempted to go out an upper floor window at Roosevelt and that he was very distraught and upset. On New Year’s Eve, he knocked down a guard and ran out without any coat, taking a cab to his parents’ home. When they saw him, they told plaintiff to get him into Ridgeview and they would pay for it. She called Ridgeview and Dr. Talbott told her to bring Walter to Atlanta immediately. She did so and was met at the airport near midnight by Dr. Talbott, who drove them to Ridgeview. She saw Walter again on New Year’s Day and spoke with Dr. Talbott. She was advised not to accept any phone calls from Walter for the first ten days of his treatment. She told Dr. Talbott about the suicide attempts, although he had no recollection of that. She returned to New York.

Walter was admitted to one of the unlocked alcohol and drug units, Cottage A, by Dr. Talbott. Dr. Talbott’s notes of January 1 reflect a diagnosis of cocaine, opiate, and THC (marijuana) addiction, and knowledge of Walter’s Hazelden and Roosevelt stays. He also diagnosed dysthymic disorder. Dr. Talbott was not to be Walter’s primary physician, but had merely signed him in as an emergency admission, originally on Dr. Browne’s service. Talbott dictated his admission history on Sunday, January 1 and it was transcribed on January 3. It contained no mention of suicidal ideations or prior attempts. Because of the holiday, Dr. Talbott, who was on call for all patients, continued to prescribe medications for Walter for his withdrawal symptoms, including tremors and cramps.

During the day on Monday, January 2, Walter became more agitated, demanding to be released. He began to turn over tables and as a result of this behavior, Dr. Talbott ordered him transferred to Cottage C, a locked unit for psychiatric patients. Since Dr. Browne had not seen Walter, he was transferred to Dr. Blevins, who saw him and noted a probable diagnosis of opiate and cocaine dependence and “near toxic psychosis.” While in C on January 2, Walter was placed initially in the seclusion hall, where all rooms entering it can be locked to prevent the patient’s entry and the patient can be observed through locked glass doors closing off the hallway from the rest of the unit. In the hall, Walter began kicking the doors and attempting to leave, so he was placed in the seclusion room with only a mattress and a locked door through which the patient can be observed until allowed to leave. He remained there for an hour and was seen by Dr. Blevins.

On January 3, Walter was transferred to Cottage B, the other alcohol and drug unit. Prior to that transfer he had signed a request to be released, which he later withdrew. After the transfer, he signed a second request, which he also withdrew after attending a meeting of Caduceus, a group of doctors undergoing treatment at Ridgeview. He continued to show withdrawal signs, including cramping, panic feelings, dehydration, and increasing agitation. He slept only three hours that night.

On the morning of January 4, Walter refused to attend any groups and became more agitated. Around noon on January 4, Dr. Blevins signed a form 2014 on Walter, certifying that he was in need of involuntary treatment, was drug or alcohol dependent, could present a substantial risk of injury to himself or others, and should be transferred to an evaluating facility. This began the process of involuntary commitment. OCGA §§ 37-7-64; 37-7-81; see Davis v. Charter By-The-Sea, 183 Ga. App. 213 (1) (358 SE2d 865) (1987). It was based partially on the staff’s consensus that Walter might “wander off cottage and into harm’s way.” Walter was transferred back to Cottage C. He signed a request for a court-appointed attorney and writ of habeas corpus. He appointed plaintiff as his representative but refused to authorize Ridgeview’s staff to discuss his treatment with her.

He was examined by Dr. Udell, the consulting psychiatrist for Ridgeview on January 4 at the request of Dr. Blevins. Dr. Udell noted Walter’s “starey look, stiff walk, dehydration, and depressed and angry mood.” While he noted no evidence of thought disorder, he did note Walter’s poor judgment and recommended that he be kept on the closed unit and encouraged to participate in the C programs. His diagnosis was “toxic brain syndrome, mixed.” At that time, he did not believe Walter was suicidal. He was unaware of Walter’s previous expressions of suicidal intent.

During the night of January 4, Walter did not sleep and was noted by June Davis, the night shift nurse, to be angry and hostile.

On the morning of January 5, Walter violated phone restrictions by attempting to call his wife. Due to his continued agitation and pushing of limits, he was placed on the seclusion hall. Greg Thomas was one of the clinical assistants, non-medical personnel who assist nurses in the care of patients. While observing Walter on the hall at approximately 11:45 a.m., he saw Walter go into the alcove where the bathroom was located. Thomas could not see Walter and went to investigate. He found Walter with one arm of his sweater around his neck and the other caught in an upper corner of the bathroom door. The sweater was taut and Walter’s knees were bent. Thomas and Glenn McCoy, another clinical assistant who arrived seconds after Thomas, removed the sweater from Walter’s neck. Walter ran from the seclusion hall, grabbed a ping pong net and began swinging the metal ends of the net at staff. He had to be subdued with foam tipped poles used for such incidents. He was placed in the seclusion room. Clyde Beckley was a shift staff coordinator who oversaw the clinical assistants in C and also a non-medical employee. He was called out of a group meeting and spoke with Glenn McCoy about the incident, and he spoke with Walter who told him he had not meant to hurt anyone. Jeff Turner was staff coordinator of the next shift. He usually arrived early to get a report from Beckley of the prior shift’s events. He did so that day and was informed of the sweater incident by Beckley.

Dr. Blevins was called to the unit and spoke only with one staff member, Turner, about the incident. He talked with Walter who said he did not want to die but wanted to be relieved of all his anxiety and fear. Dr. Blevins concluded that the incident was a “suicide gesture,” not a “suicide attempt,” and that Walter was not suicidal. He did not order any suicide prevention measures.

No entry was made in the interdisciplinary notes about this incident by Thomas on January 5, because he had not been assigned to Walter. Beckley made no entry in the notes because he had not witnessed the incident. No note was made by McCoy.

That afternoon, Walter was visited by his appointed attorney, Ray Gary. Gary spoke with him on the observation hall but was not allowed to be alone with him. An unidentified staff member told him he was not permitted to leave Walter alone. Gary had represented numerous patients under similar circumstances and could not recall such a restriction at any other time.

Nurse Davis came back on shift at 11:00 p.m. on January 5. She was orally advised by Nurse Jones of the sweater incident at report between shifts. Jones had been advised of the incident by Nurse Nordland, who had not witnessed the incident but was the nurse on the shift on which it occurred. It was described to Davis as a “gesture.” While no precautions had been taken by Nordland or Jones as a result of it, Davis determined that Walter needed close observation and directed her clinical assistants to put him on fifteen-minute checks, one of the suicide prevention measures listed in Ridgeview’s “Suicide and Self-Injury Prevention” policy. No written note of this was made, but Davis orally reported it to Nordland when she returned for the 7:00 a.m. shift on the morning of January 6. Nordland did not continue the fifteen-minute checks or take any other precautions concerning Walter.

Dr. Blevins met with Walter at 9:00 a.m. and informed him that his commitment hearing would commence at 11:00 a.m. He again asked him about the sweater incident and Walter denied any intention of harming himself or others. Walter was seen by staff going into his room at 9:45 a.m.

During the 10:00 a.m. rounds, Walter was found hanging by his shirt from the shower handgrip in his room. Efforts to resuscitate him failed.

At 9:54 a.m., a social worker began a 59-minute telephone call with plaintiff during which plaintiff detailed Walter’s drug use, his suicidal ideations, and his prior attempt. This accorded with Ridgeview’s practice of having one of its social workers take a social history from a patient’s family member within five days of admission.

The jury returned a verdict of $1.3 million in favor of plaintiff on her wrongful death claim against Dr. Blevins and Ridgeview. It returned a verdict in favor of all defendants on her claim as representative of Walter’s estate.

Judgment reflecting the verdict was entered. The next day, without any motion by defendants, the court entered the j.n.o.v. here at issue.

1. (a) Plaintiff claims error by the trial court’s grant of j.n.o.v. where no motion for it was made by defendants.

Defendants did move for directed verdict at the close of plaintiff’s case and renewed this motion at the close of the case. The trial court allowed the case to go to the jury, reserving ruling on the directed verdict motion until after the jury’s verdict. Judgment was entered thereon, and the next day the court without further hearing granted the motion and entered judgment for defendants, thereby setting aside the judgment based on the verdict.

Although no motion for j.n.o.v. was pending when the court in effect ordered a j.n.o.v. sua sponte, this naturally followed the ruling on the pending motion for directed verdict, because the existing judgment became invalid as a matter of law. Actually, what the court did was to “reopen” the judgment, in the word of OCGA § 9-11-50 (b).

Before the court loses jurisdiction of the case by some event such as the filing of a notice of appeal from the judgment, the motion for directed verdict remains pending even though judgment was entered on a contrary verdict, as in this case. The motion is not mooted by the entry of judgment but is preserved by the court’s reserving ruling.

The sequence of events here mirrors that in Mayor &c. of Savannah v. Palmerio, 242 Ga. 419 (249 SE2d 224) (1978), except that a motion for new trial was there pending when the court ruled on the carry-over motion for directed verdict. Although here, as well as in that case, ruling on the motion prior to the entry of the first judgment would have been procedurally and conceptually more orderly as contemplated by OCGA § 9-11-50 (b), doing so afterwards did not constitute an unauthorized act.

OCGA § 9-11-50 provides for the filing by the losing party of a j.n.o.v. motion but does not require one before the trial court may rule on a still-pending motion for directed verdict. Mayor &c. of Savannah, supra at 420 (1); Miller & Meier & Assoc, v. Diedrich, 174 Ga. App. 249, 250 (1) (329 SE2d 918) (1985); see Norton v. Snapper Power Equip., 806 F2d 1545, 1547 (1) (11th Cir. 1987). Since the test for granting the j.n.o.v. is the same as the test for granting a directed verdict, OCGA § 9-11-50 (a) & (b), Horton v. City of Macon, 144 Ga. App. 380, 381 (2) (241 SE2d 311) (1977), making such a motion after a favorable ruling on the motion for directed verdict would be redundant if not a useless act. Thus, the trial court’s ruling on the pending motion for directed verdict and grant of j.n.o.v. based on it without a formal motion for j.n.o.v. was not error.

(b) Contrary to plaintiff’s further contention, the grounds ruled upon by the court were adequately raised in the motions for directed verdict, as they must be in order to be addressed by the trial court and this one. Grabowski v. Radiology Assoc., 181 Ga. App. 298, 299 (2) (352 SE2d 185) (1986).

2. Brandvain’s first enumeration claims error in the trial court’s initial premise of the j.n.o.v., that in a medical malpractice case “[t]here exists a serious legal question as to whether or not an individual, clinic or hospital has a duty to prevent suicide by a patient. . . .”

While there is no duty to guarantee that a patient will not commit suicide, Georgia has long recognized a duty with regard to treatment of patients by doctors and other individual health care professionals as well as private hospitals such as Ridgeview. Defendants did not contend below that there was no duty. In fact Dr. Blevins, Dr. Talbott, and Dr. Norris, a psychiatrist/addictionologist called as an expert by defendants, as well as plaintiff’s expert, Dr. Morgan, all testified that there was a duty to the extent possible under reasonable medical practice to prevent suicide of a hospitalized patient.

As to the physician, the duty is that inherent in the doctor-patient relationship, which, if breached by failure to exercise the requisite degree of skill and care, with that failure being the proximate cause of the injury, will result in liability. OCGA § 51-1-27; Hawkins v. Greenberg, 166 Ga. App. 574, 575 (1) (a) (304 SE2d 922) (1983); Norton v. Hamilton, 92 Ga. App. 727, 731 (89 SE2d 809) (1955); see Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200 (1) (345 SE2d 904) (1986).

The duty owed by Ridgeview is that enunciated in Emory Univ. v. Shadburn, 47 Ga. App. 643 (1) (171 SE 192) (1933), aff’d 180 Ga. 595: “A private hospital in which patients are placed for treatment by their physicians, and which undertakes to care for the patients and supervise and look after them, is under the duty to exercise such reasonable care in looking after and protecting a patient as the patient’s condition, which is known to the hospital through its agents and servants charged with the duty of looking after and supervising the patient, may require. This duty extends to safeguarding and protecting the patient from any known or reasonably apprehended danger from himself which may be due to his mental incapacity, and to use ordinary and reasonable care to prevent it. [Cits.]”

That standard has been repeatedly recognized and affirmed by this court as well as the Supreme Court in Shadburn, supra. E.g., Johnson v. Parnes, 163 Ga. App. 404, 405 (294 SE2d 624) (1982); Doctor’s Hosp. of Augusta v. Poole, 144 Ga. App. 184 (1 A) (241 SE2d 2) (1977); Hospital Auth. of Hall County &c. v. Adams, 110 Ga. App. 848, 853 (140 SE2d 139) (1964); Emory Univ. v. Lee, 97 Ga. App. 680, 693 (104 SE2d 234) (1958); Tate v. McCall Hosp., 57 Ga. App. 824, 828 (196 SE 906) (1938); Stansfield v. Gardner, 56 Ga. App. 634, 641 (1) (193 SE 375) (1937); Browner v. Bussell, 50 Ga. App. 840 (4) (179 SE 228) (1934).

To the extent that the j.n.o.v. held that there was no such duty, it was in error. Because the court went further, however, and “assumed for the sake of this judgment” that there could be such a duty, we proceed to consider additional enumerations.

3. Assuming such a duty, the court found that “a fundamental conflict arises in the tort law of Georgia, since suicide is an intentional and volitional act by its very nature, . . . and since a fundamental principle of Georgia law is that an individual cannot profit by his or her own wrongful conduct. . . .” The court then held as a matter of law that such intentional act of self-destruction under the doctrine of comparative negligence must equal or exceed any mere acts or omissions of others constituting negligence in failing to prevent such suicide, and that such volitional act was the sole proximate cause of Walter Brandvain’s death.

The court acknowledged that there may be situations where, due to differing grades of mental competency, a suicidal individual suffering from mental conditions ranging from inability to know right from wrong to an altered mental state, who is in the care of a health care professional with physical control over the individual or standing in a special relationship with him, the health care professional might be liable to the suicidal individual, “for all damages in the situation of no culpability for self-destruction [i.e., the suicidal individual is legally insane under OCGA § 16-3-2, which provides that insanity is a defense to a crime if the accused did not have the mental capacity to distinguish between right and wrong] or may be liable for no damages or such reduced damages under the doctrine of comparative negligence when there is reduced capacity [defined as delusional compulsion, retardation, intoxication, or mental disease or defect.]” These gradations of mental disturbance were not defined in the j.n.o.v.

The issue of proximate cause was presented by defendants in their motion for directed verdict and is thus considered here. Grabowski v. Radiology Assoc., supra.

(a) Suicide has long been the subject of intense religious, ethical, legal and medical debate. See generally, Schwartz, “Civil Liability for Causing Suicide: A Synthesis of Law & Psychiatry,” 24 Vand. Law Rev. 216 (1971). At common law, it was a felony, resulting in the forfeiture to the crown of the deceased’s property and an ignominious burial in the highway with a stake driven through his heart. 4 W. Blackstone, Commentaries *190. Although Georgia adopted the common law of England, Cobb’s 1851 Digest 721, the provision making suicide a crime appeared in no other code and is not presently part of the law of this state. See OCGA, Title 16; see generally, 83 CJS Suicide § 2. Suicide was also originally a legal statutory defense to payment of insurance benefits, Ga. Code Ann. § 56-909 (1953), but that was repealed in 1960, Ga. Laws 1960, pp. 289, 754, leaving the matter one of contract between the parties. The court’s holding that suicide is always “wrongful” in a legal sense finds no basis in the present law of this state.

The gradations of mental illness used by the court in its sliding scale of potential liability of medical health care professionals in cases of suicide also do not have legal significance per se in the determination of the duty owed to the patient and the issue of proximate cause. The medical profession recognizes a multitude of mental illnesses, from the most severe psychosis to the anxieties experienced by most of us in our daily lives. Diagnostic & Statistical Manual of Mental Disorders (Third Ed., Revised 1987) (hereinafter cited as DSM-III-R).

Georgia law also recognizes a range of disorders and makes allowance for these differences considering the context. The “right/wrong” standard, supplemented by the “delusional compulsion” standard, is used for determination of criminal responsibility, i.e., if one is unable to distinguish right from wrong, or, because of delusional compulsion due to mental disease, injury, or congenital deficiency, cannot resist committing the crime, he is not held criminally responsible for his act because he was unable to formulate the requisite intent or cannot resist the compulsion. OCGA §§ 16-3-2; 16-3-3. This does not mean, however, as intimated by the trial court, that one who is psychotic is always legally insane in the criminal context. Wilson v. State, 257 Ga. 444, 449 (11) (359 SE2d 891) (1987); Nelson v. State, 254 Ga. 611, 613 (1) (331 SE2d 554) (1985).

The law provides for treatment of the “mentally ill,” defined as “having a disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.” OCGA § 37-3-1 (11). They may be involuntarily treated if they present a substantial risk of imminent harm to themselves or others. OCGA §§ 37-3-1 (12) & 37-3-40 et seq. Also, a person incapacitated by drugs or alcohol may be involuntarily treated. OCGA Title 37, Article 7. “ ‘Incapacitated by alcohol or drugs’ means that a person, as a result of the use of alcohol or drugs, exhibits life-threatening levels of intoxication, withdrawal or imminent danger thereof, or acute medical problems; or is under the influence of alcohol or drugs to the extent that he is incapable of caring for himself or protecting himself due to the continued consumption thereof.” OCGA § 37-7-1 (13). The latter is the procedure which had been instituted for Walter Brandvain by Ridgeview and Dr. Blevins. OCGA §§ 37-7-43 & 37-7-81.

Even though a mentally ill or drug or alcohol dependent person may not need commitment, they may require a legal guardian because they “lack sufficient understanding or capacity to make significant responsible decisions concerning their persons or to the extent they are incapable of communicating them.” OCGA § 29-5-1.

(b) It is in this legal context that we address the issue of proximate cause as determined by the trial court.

“It is hornbook law that for recovery to be allowed in a tort case, there must be a failure to use a standard of care by the defendant, which proximately causes an injury to the plaintiff, to whom a duty is owed. Inextricably entwined with concepts of negligence and proximate cause is a notion of foreseeability, not foreseeability as to the particular harm but that some harm would occur. ... In considering the matter of proximate cause, Georgia courts and courts from other states have used various yardsticks, a few of which are as follows: remoteness in time and space, [Cit]; independent intervening causes, [Cit]; and foreseeable natural and probable consequences, [Cit]. No matter what test is used in determining the issue of proximate cause, all of the tests envision some reasonable apprehension of harm. ‘The range of reasonable apprehension is at times a question for the court, and at times, if varying inferences are possible, a question for the jury.’ Palsgraf [v. Long Island R. Co., 248 N. Y. 339] at 345. [(162 NE 99) (1928)].” Western Stone &c. Corp. v. Jones, 180 Ga. App. 79, 80 (348 SE2d 478) (1986); see McAuley v. Wills, 251 Ga. 3 (303 SE2d 258) (1983).

The judge here found that the negligence of defendants was not the proximate cause of Walter’s death, as a matter of law, due to Walter’s intervening volitional act of suicide.

Although no authority for this holding is cited by the court, it appears to be based on the concept of an intervening criminal act, which under some circumstances may be found to be the “supervening” or “intervening” proximate cause, relieving a defendant from responsibility for his negligence. E.g., Bradley Center v. Wessner, 250 Ga. 199, 202 (296 SE2d 693) (1982); Collie v. Hutson, 175 Ga. App. 672, 673 (2) (334 SE2d 13) (1985); Hercules v. Lewis, 168 Ga. App. 688, 689 (309 SE2d 865) (1983); see Arnold v. Athens Newspapers, 173 Ga. App. 735, 737 (1) (327 SE2d 845) (1985).

Even if suicide were still a crime in Georgia, that alone does not make any act of suicide a per se legally supervening/intervening act. “[I]f the intervening criminal act is a reasonably foreseeable consequence of the defendant’s negligent conduct, the legal, causal connection between that conduct and injury is not broken.” Hercules v. Lewis, supra at 689. Considering the evidence in this case, this question would still be one for the jury. Doctor’s Hosp. of Augusta, supra at 185 (2).

(c) The court also held as a matter of law that Walter’s “volitional” act of self-destruction was the “ultimate act of assumption of the risk and such intentional fault that must equal or exceed any acts or omission of the Defendant [s] under the doctrine of comparative negligence.”

OCGA § 51-11-7 states that “[i]f the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.”

This modified comparative negligence statute, while appearing straightforward on its face, contains a number of legal concepts and has engendered much discussion and litigation. C. J. Hilkey, “Actions For Wrongful Death in Georgia,” 22 Ga. B. J. 459 (1960); see generally, D. Sobelsohn, “ ‘Pure’ vs. ‘Modified’ Comparative Fault: Notes On The Debate,” 34 Emory L. J. 65 (1985).

Assumption of the risk, encompassed by the statute, means that a plaintiff “has given his express consent to relieve the defendant of an obligation of conduct toward him and to take his chance of injury from a known risk.” Owens-Illinois v. Bryson, 138 Ga. App. 78, 79 (225 SE2d 475) (1976).

“ ‘Contributory negligence is conduct on the part of the plaintiff, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection. Unlike assumption of risk, the defense does not rest upon the idea that the defendant is relieved of any duty toward the plaintiff.’ [cit.].” Osburn v. Pilgrim, 246 Ga. 688, 695 (273 SE2d 118) (1980).

Under the circumstances of this case, where Walter was being held by Ridgeview pursuant to the certificate signed by Dr. Blevins and could not leave the hospital, defendants could not legally be relieved of their duty to him, and therefore assumption of the risk was not applicable. Stansfield v. Gardner, 56 Ga. App. 634, 643 (193 SE 375) (1937); Brawner v. Bussell, 50 Ga. App. 840 (179 SE 228) (1934) (physical precedent only, Rule 35 (b)); see Assoc. Health Systems v. Jones, 185 Ga. App. 798, 799 (366 SE2d 147) (1988). Whether it would be appropriate to consider if the certificate had not been signed need not be addressed.

This leaves for our consideration the question of the negligence of Walter. The trial court found that since Walter was “a highly intelligent and educated young man with no significant illnesses other than chemical dependence, who was neither psychotic, delusional, or suffering from reduced mental capacity; [he] does not fit any category of either reduced culpability or non-culpability.”

This finding, however, flies in the face of the evidence presented at trial by both plaintiff and defendants. Walter had used marijuana, morphine, cocaine, and heroin for a long period and was addicted. This addiction is recognized by psychiatry as an Organic Mental Disorder. DSM-III-R, p. 165 et seq. All of the doctors testifying stated that suicide is a very real risk in cocaine users, and particularly so during the withdrawal stage. Walter was chemically toxic when admitted and near toxic psychosis. Dr. Udell, Ridgeview’s consulting psychiatrist, gave as a tentative diagnosis, “toxic brain syndrome,” and noted that Walter’s judgment was impaired.

While there is no authority for holding that a patient is, as matter of law, so contributorily negligent that he could not recover in tort, there is authority for the proposition that a patient may be so mentally ill that, as matter of law, he is not held to exercise any degree of care for himself, and, therefore, cannot be contributorily negligent. In Swofford v. Cooper, 184 Ga. App. 50 (360 SE2d 624) (1987), Jerry Swofford, the adopted son of the Swoffords, was hospitalized in a mental hospital. He was treated by Dr. Cooper, a psychiatrist. He was mentally retarded and had, in his teenage years, become so aggressive and combative that his parents had to hospitalize him. Jerry had been hospitalized for eleven months, during which time he expressed homicidal threats. He was given a two-week pass for Christmas. After having been home for four days, he stabbed his father and mother as they slept, killing his father. Mrs. Swofford sued for the wrongful death of her husband, her own injuries, and, as representative of Jerry, for his emotional suffering as a result of killing his father. Plaintiff appealed the grant of the doctor’s motion for summary judgment. One of the grounds upon which the trial court granted it, as to Jerry’s claim, was that Jerry himself was negligent. This court reversed, finding that “[t]he record demonstrates that Jerry was psychotic when he stabbed his father. (Jerry was declared incompetent to stand trial . . . ) Thus, ‘he could not have been held to the exercise of any degree of diligence.’ Emory Univ. v. Lee, [97 Ga. App. 680 (104 SE2d 234) (1958)] at 702.” Swofford, supra at 54 (4).

Lee, supra, involved a heart attack patient admitted to a hospital and treated with drugs, including morphine. As a result of the “deranged mental condition” occasioned by the morphine, the patient fell or jumped from an upper floor window and was injured. In affirming the denial of j.n.o.v. to defendants, this court held that “[i]f the evidence in the case sub judice conclusively proved that the plaintiff was on the occasion when he was injured entirely bereft of reason, it is obvious that he could not have been held to the exercise of any degree of diligence. Hence the provisions of [OCGA § 51-11-7] would not in such circumstances be adjusted to the issues of the case.” Lee, supra at 702 (6).

Whether Walter was so disabled by his prior drug use and the depression of the dysthymic disorder, DSM-III-R, p. 230, § 300.40, as to be legally incapable of being contributorily negligent was not presented below by plaintiff and thus need not be further addressed. The “volitional” nature of the act, however, must be.

“Volition” is defined as “the act of willing or choosing: the act of deciding (as on a course of action or an end to be striven for): the exercise of the will. . . .” Webster’s Third New International Dictionary 2562 (3d ed. 1981). All of the doctors testifying stated that a true suicide is always volitional, in that the person intentionally takes the action which ends his life. This, however, does not make the act a rational one or one which negates the duties of the hospital and doctor to take reasonable steps to prevent the patient’s death.

In Misfeldt v. Hosp. Auth. of Marietta, 101 Ga. App. 579 (115 SE2d 244) (1960), a woman diagnosed as a probable paranoid schizophrenic was hospitalized. She went into a bathroom and jumped from a third story window, injuring herself. “It is true that one is not bound to foresee and guard against casualties which are not reasonably to be expected, or which would not occur save under exceptional circumstances, or which result from an unexpected act of the person injured. [Cit.] ... If the plaintiff’s wife was not mentally ill, and her injuries were done pursuant to her own rational and calculated act, then she would be the cause of her own injuries and her husband could not recover, [cit.]” Misfeldt, supra at 583; Stansfield v. Gardner, supra at 643; Brawner v. Bussell, supra. There, it was error for the trial court to direct a verdict because the evidence of her illness and the reasonableness of the steps taken by the hospital to protect her from herself were disputed and for the jury. Misfeldt, supra at 583; see, e.g., Hawkins v. Greenberg, supra at 578 (1 (b)); Johnson v. Parnes, supra at 405; Tate v. McCall Hosp., supra at 828; Stansfield, supra.

Thus, the fact that Walter’s act was volitional did not make it a rational act, nor did that alone relieve the defendants of their duty to him.

Decided July 11, 1988

Rehearing denied July 28, 1988

Robert C. Lamar, David W. Davenport, for appellant.

Rush S. Smith, Jr., R. Jerry Kirkpatrick, Brynda S. Rodriguez, for appellee.

Jack S. Schroder, Jr., James F. Owens, Thomas W. Bennett, Don C. Keenan, David S. Bills, amici curiae.

This is not to say that no suicide is ever rational. In situations of terminal illness, such as Alzheimer’s disease or AIDS, where there is no hope of recovery and only untold suffering with which to contend, there is already the constitutional right to refuse treatment. In re L. H. R., 253 Ga. 439, 446 (321 SE2d 716) (1984). Whether more affirmative steps may also be constitutionally protected has not yet been decided in the legal context, but may be rational under some circumstances. Note, “Voluntary Active Euthanasia For The Terminally III & The Constitutional Right To Privacy,” 69 Cornell L. Rev. 363 (1983-1984).

If such a patient is hospitalized and expresses the desire to refuse further treatment, thus passively committing suicide, there are already procedures in place to protect the medical establishment. In re L. H. R., supra; Bouvia v. Superior Court, 225 Cal. Rptr. 297 (179 Cal.App.3d 2 Dist. 1127) (1986); In re Quinlan, 355 A2d 647 (70 N.J. 10) (1976).

4. Finally, to the degree that the defenses of comparative or contributory negligence and intervening criminal acts were applicable to this case, these were matters for the jury’s consideration and were not determinable as a matter of law. Collie, supra at 673 (2); Southern Intermodal Logistics v. Coleman, 175 Ga. App. 853 (334 SE2d 888) (1985); Warner v. Arnold, 133 Ga. App. 174, 179 (2) (210 SE2d 350) (1974). This is particularly true here, where all of the physician witnesses called by defendants agreed that if Walter’s act on January 5 were a suicide “attempt” instead of a “gesture,” both the hospital and Dr. Blevins were negligent. Thus, even under defendants’ version of the case there was a factual question to be decided.

The only theory which would make the j.n.o.v. entered here legally viable is that in all cases of suicide the defendant doctor or hospital is not responsible as a matter of law, regardless of the foreseeability of the suicide or the reasonableness of the steps taken to prevent it. If this is to be the policy of this state, it must be so declared by the legislature.

Judgment reversed.

Birdsong, C. J., and Banke, P. J., concur.

       In connection with duties arising due to foreseeable violence by the mental patient, see the latter two special concurrences in Roberts v. Grigsby, 177 Ga. App. 377, 383 (339 SE2d 633) (1985).


source: Caselaw Access Project

author: Per curiam.

license: Public Domain

text:
    76348.
    STATE OF GEORGIA et al. v. SHEARSON LEHMAN BROTHERS, INC. et al.
    (372 SE2d 276)
   Per curiam.

The State of Georgia on May 14, 1985, filed this civil action under Georgia’s Racketeer Influenced & Corrupt Organizations Act, OCGA § 16-4-1 et seq. (RICO), against twenty brokerage dealers and insurance companies, including appellees Shearson Lehman Brothers, Inc., and the Robinson-Humphrey Company, Inc. In its complaint, the State alleged that appellees and the other defendants committed various RICO predicate offenses including state and federal securities violations and mail and wire fraud. Appellees and the other defendants immediately removed the case to the federal court, but the case was remanded to the superior court on August 16, 1985. The other defendants have since been dismissed as a result of settlement. Appellant Marion T. Pope, Jr., filed a petition for intervention and class certification on September 30, 1985, which was granted ex parte by the superior court. In June 1986, appellees filed a motion to disqualify one of the attorneys for appellants, Special Assistant Attorney General Andrew Ekonomou, on the ground that he had been a hearing officer in a related administrative hearing. After receiving evidence at a hearing in September 1986, the superior court granted that motion and disqualified Ekonomou. In December 1986, appellees filed a motion to dismiss the complaint, on the ground that the complaint failed to state a claim upon which relief could be granted. The motion also attacked the court’s class certification and grant of intervention to Judge Pope. The court granted the motion to dismiss for failure to state a claim and this appeal followed.

1. Appellees have filed a motion to dismiss this appeal on the ground that exclusive appellate jurisdiction rests in the Georgia Supreme Court. We deny this motion as appellate jurisdiction is proper in this court for the following reasons: (1) the equitable relief sought by the State (the permanent injunction) has become moot because appellees no longer market the financial instruments complained of; (2) the State has formally abandoned all relief sought for the revocation of business licenses; (3) because the complaint primarily seeks forfeiture and money damages, any minor equitable relief sought as a corollary to those money damages is properly heard by the Court of Appeals; and (4) jurisdiction over the appeal by Marion T. Pope, Jr., should not be heard by the Supreme Court because Judge Pope originally sought no equitable relief in the trial court.

2. We note at the outset that all such motions to dismiss for failure to state a claim should be granted only where a complaint “shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim.” Property Pickup v. Morgan, 249 Ga. 239, 240 (290 SE2d 52, 53) (1982). See OCGA § 9-11-12 (b) (6). In its order granting appellee’s motion to dismiss, citing as authority the expression of the General Assembly’s intent in enacting RICO, the court below found that the complaint failed to state a civil RICO claim because appellants did not allege that appellees were “organized criminal elements attempting to take over the legitimate economy of this state.” See OCGA § 16-14-2. As this level of criminal activity would not have been shown even if all the facts in appellants’ allegations proved to be true, the court granted the motion to dismiss. We hold, however, that the expression of legislative purpose in enacting Georgia’s RICO act is not an element of a civil cause of action under the act, and reverse the grant of appellees’ motion to dismiss for failure to state a claim.

The Georgia Supreme Court, in Caldwell v. State, 253 Ga. 400 (321 SE2d 704) (1984), has identified the elements of a civil RICO forfeiture proceeding for purposes of a motion to dismiss and we follow that reasoning here.

A private cause of action is created in favor of persons injured by violations of OCGA § 16-14-4, by the language of OCGA § 16-14-6 (c). The relevant portion of OCGA § 16-14-4 reads as follows: “(a) It is unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property or personal property of any nature including money. (Emphasis added.)”

Thus, the conduct prohibited by the act is the acquisition of (in this case) money through a “pattern of racketeering activity.” The act further provides that “pattern” means engaging in at least two incidents of racketeering activity. OCGA § 16-14-3 (2). Finally, “racketeering activity” is defined to mean the commission of a crime in any of thirty-one specified categories of offenses (known as predicate offenses). OCGA § 16-14-3 (3). A complaint, therefore, which alleges that the plaintiff was injured as a result of the defendant having committed at least two similar or interrelated predicate offenses shall survive a motion to dismiss for failure to state a claim. See Caldwell v. State at 253 Ga. 400, supra; see also Stanton v. Shearson Lehman/ American Express, 622 FSupp. 293 (N.D. Ga. 1985) (the court rejected an argument identical to that urged by appellees in the instant case).

Among the enumerated categories of predicate offenses are violations of the Georgia Securities Act of 1973 and any conduct defined as “racketeering activity” under the federal RICO laws. OCGA § 16-14-3 (3) (A). In the instant case, appellees were alleged to have committed state securities crimes, federal RICO crimes, mail fraud, wire fraud and the interstate transportation of fraudulently obtained money. Thus, these allegations fall under the list of predicate offenses. Additionally, these offenses are alleged to have occurred at least twice in that appellees are alleged to have committed the predicate offenses in multiple transactions with numerous people between 1979 and June 1983. If proven, these allegations would entitle appellants to relief. Thus, the complaint states a claim on which relief might be granted and does not “show with certainty that the plaintiff would not be entitled to relief under any set of facts which could be proved in support of the claim.” Property Pickup, supra. The motion to dismiss was, therefore, improvidently granted. Accordingly, we reverse that part of the superior court’s order dismissing the case for failure to state a claim.

3. On September 30, 1985, Marion T. Pope, Jr., appellant, filed a petition to intervene and for provisional class certification. This petition was accompanied by a brief in support of the motion to intervene, the class action complaint, and the ex parte order of the trial judge granting the motion. All of these documents were mailed to counsel of record for the various defendants. On October 18, 1985, appellee Shearson moved to vacate the order granting intervention on the ground, among others, that it had been obtained ex parte. On August 12, 1987, the trial judge entered an order vacating the September 30, 1985, order on the ground that it was entered ex parte. As shown below, that August 12 order was correct.

Appellant intervenor failed to comply with the provisions of the statute which govern intervention and pursuant to which he elected to move for intervention. OCGA § 9-11-24 (c) provides that: “A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Code Section 9-11-5. . . . The same procedure shall be followed when a statute gives a right to intervene.” Thus, an intervenor attempting to intervene pursuant to the right of intervention must comply with OCGA § 9-11-5. This section provides that, “every motion, other than one which may be heard ex parte . . . shall be served upon each of the parties.” This is not a motion which could have been heard ex parte. Georgia Uniform Court Rule 4.1 provides: “Except as authorized by law or rule, judges shall neither initiate nor consider ex parte communications by interested parties or their attorneys concerning pending or impending proceedings.” The appellees were not served with the motion to intervene prior to any hearing and the order granting intervention was an ex parte order. Thus the superior court was correct in vacating its order.

Such was the holding in Gregory v. Tench, 130 Ga. App. 219 (225 SE2d 753) (1976). In that case, Gregory had secured an ex parte order allowing him to intervene and, like appellant intervenor here, served the ex parte order on the day it was granted. This court held that because the notice requirement under former Code Section 81A-106 (d) (now OCGA § 9-11-6 (d)) was not complied with, the lower court did not err in vacating its prior order granting the ex parte application to intervene. We follow that reasoning here and affirm the superior court’s order vacating its prior order allowing intervention.

4. Appellant further contends that the trial court erred in granting appellees’ Motion to Disqualify Special Assistant Attorney General Andrew Ekonomou from representing the State. We agree.

Ekonomou appears to have merely acted as a lawyer in an investigative position. The proceeding which he “convened” was more equivalent to a deposition than an “administrative” or “judicial hearing.” The mere fact that a court reporter labeled him the “hearing officer” is not dispositive of his status. The only evidence that Ekonomou acted as a “hearing officer” was the front page of the transcript which, again, was arbitrarily styled by the court reporter. Any such categorization was totally rebutted by evidence presented at the hearing before the trial judge.

As Ekonomou was simply conducting an informal inquiry there was no violation of the Code of Professional Responsibility (Directory Rule 901 (A) or (B)). As he was not acting in a judicial capacity there was no violation of Rule 901 (A) and as Ekonomou represented the State throughout both proceedings and acquired no information as a government attorney which he then used as a private attorney to the benefit of that private client, there was no violation of Section B of the Rule. There was no conflict of interest, therefore, and no appearance of impropriety. The case law is clear that counsel may not be disqualified on the basis of an appearance of impropriety alone. Blumenfeld v. Borenstein, 247 Ga. 406, 409 (276 SE2d 607) (1981). While there does not appear to be even an appearance of impropriety here, clearly there was no conflict of interest or any jeopardizing of client confidences coupled with it so as to outweigh a client’s (the State’s) interest in having an attorney of choice.

A special assistant attorney general is authorized to both investigate and prosecute offenses. Brown v. State, 177 Ga. App. 284 (339 SE2d 332) (1985). Ekonomou’s position in the case at bar is consistent with this approved dual capacity.

As Ekonomou was not acting in a judicial capacity there could be no violation of any of the provisions of the Code of Judicial Conduct.

Judgment affirmed in part and reversed in part.

Judge William M. Fleming, Judge James E. Findley and Judge Philip F. Etheridge concur.

Decided July 11, 1988

Rehearing denied July 28, 1988

Michael J. Bowers, Attorney General, Harrison Kohler, George P. Shingler, Senior Assistant Attorneys General, David F. Walbert, for appellants.

Ellis G. Arnall, Allen I. Hirsch, John Clay Spinrad, Harvey D. Myerson, Lloyd S. Clareman, Robert J. Mandell, for appellees.


author:
Carley, Judge.
      Beasley, Judge, Deen, Presiding Judge,

text:
    76412.
    BRYANT v. BMC OF GEORGIA, INC.
    (372 SE2d 280)
   Carley, Judge.

Appellant-plaintiff filed this negligence action against appelleedefendant to recover damages for injuries he received while a patient at a hospital operated by appellee. In preparation for trial, the trial court ordered counsel for appellant to prepare and submit the plaintiff’s portion of the pre-trial order to opposing counsel by September 7, 1987, and to appear at the pre-trial conference on September 10, 1987. When appellant failed to comply with each of the requirements of the trial court’s order, the trial court dismissed the action. Appellant appeals from the trial court’s order of dismissal filed on September 15, 1987.

1. In the sole enumeration of error, appellant urges that the trial court abused its discretion in denying his trial counsel’s request for a leave of absence.

Uniform Superior Court Rule 16 provides in pertinent part: “Applications for leaves of absence must be in writing and shall be served upon opposing counsel at least 5 days (if such service is made personally) prior to submission to an appropriate judge of the court in which an action pends; such service shall be accomplished at least 10 days prior to submission to such judge if service upon opposing counsel is other than personal. This period of time may be waived if opposing counsel consents in writing to the application. This procedure permits opposing counsel to object or to consent to the grant of the application, but the application is addressed to the discretion of the court.”

Our examination of the record reveals that although appellant’s counsel claims to have attempted to serve opposing counsel with a request for leave of absence on September 8, 1987, opposing counsel did not receive the request until September 14, 1987. Said request was received by opposing counsel in an envelope postmarked September 11, 1987, the day after the pre-trial conference was to have taken place. No request for leave of absence was actually filed with the trial court until September 17, 1987, two days after the order of dismissal had been entered and seven days after counsel had failed to appear at the pre-trial conference. Due to appellant’s trial counsel’s complete failure to comply with the requirements of Rule 16 of the Uniform Superior Court Rules, we conclude that there was absolutely no abuse of discretion in connection with the trial court’s denial of counsel’s application for leave of absence. Accordingly, appellant’s sole enumeration of error is without merit.

2. Our determination that there is no merit in appellant’s sole enumeration of error would ordinarily dispose of the appeal. However, the dissent urges that the trial court must be reversed under Rule 7.1 of the Uniform Superior Court Rules.

Appellant’s enumeration of error asserts only the abuse of discretion in connection with the denial of the leave of absence. In fact, the actual enumeration of error is, as stated, by appellant, as follows: “The Trial Court erred in entering its order of September 11, 1987 dismissing appellant’s case where it failed to exercise discretion in its application of Uniform Superior Court Rule 16 where appellant’s attorney, as solo practitioner, attempted to apprise the court of her automobile accident and injuries both prior to the court date and after the court date.” Nowhere in that enumeration nor, in fact, in the brief, has counsel for appellant made any reference whatsoever to Rule 7.1 of the Uniform Superior Court Rules nor has she contended that the trial court acted in a manner prohibited by said rule in dismissing the case.

“This court has no jurisdiction to consider grounds which . . . are not enumerated as error according to OCGA § 5-6-40. [Cits.]” Sunn v. Trophy Marine, 176 Ga. App. 68, 69 (2) (334 SE2d 884) (1985). In Hurston v. Ga. Farm Bureau &c. Ins. Co., 148 Ga. App. 324, 326 (2) (250 SE2d 886) (1978), the author of the dissent in this case stated as follows: “Appellant attempts to enlarge upon her first enumeration of error. . . . ‘An enumeration of error cannot be enlarged to include other issues not made therein.’’ [Cit.]” (Emphasis supplied.)

“We do not know of any law or rule of practice and procedure that authorizes the Court of Appeals ... to examine the entire record and grant a new trial upon a ground of their own making and not upon a ground specified by the appellant. The duty of the appellate court is to correct errors alleged to have been made in the trial court and not to manufacture them.” Hess Oil & Chem. Corp. v. Nash, 226 Ga. 706, 709 (177 SE2d 70) (1970). Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

Birdsong, C. J., McMurray, P. J., and Sognier, J., concur. Beasley, J., concurs specially. Deen, P. J., Banke, P. J., Pope and Benham, JJ., dissent.

Beasley, Judge,

concurring specially.

The appeal is from the order dismissing the complaint for two reasons, failure to file a proposed pretrial order and failure to appear at a scheduled pretrial conference. Both of these requirements are governed by USCR 7.1 and 7.2 and may be imposed by the court pursuant to authority granted therein, by virtue of Ga. Const. 1983, Art. VI, Sec. IX, Par. I. The rule allows broad discretion in fashioning sanctions for violations, expressly precluding only dismissals “with prejudice.”

The trial court here simply dismissed the complaint. This makes it one without prejudice, because it was done for failure of plaintiff to prosecute. OCGA § 9-11-41 (b) (1). A plaintiff’s failure to follow the administrative rules and move his case along as ordered by the court pursuant to those rules would constitute failure to prosecute, just as would the failure to appear at the call of the case for trial. Dismissal for the latter reason can only be without prejudice. Leach v. Aetna Cas. &c. Co., 172 Ga. App. 785 (324 SE2d 494) (1948), aff’d 254 Ga. 265 (330 SE2d 596) (1985).

Thus, even if appellant had cited Rule 7 he would not be entitled to reversal, because we would first have to conclude that the trial court abused its discretion in ordering this sanction. Considering the reasons appellant has offered to prove legal error, and the fact that his counsel’s motion for leave of absence was not filed until a week after the scheduled conference (although she says dehors the record that she delivered it to the judge the day after the scheduled hearing and before he entered the dismissal order), it is difficult to characterize the court’s dismissal as abusive. For one thing, at the time the question of dismissal was before the court, no motion for leave of absence was pending.

What has led this case astray is that the appeal is from the order of dismissal, while the complaint on appeal is that the court failed to exercise its discretion under USCR 16 to grant the requested leave of absence. The court never ruled on that motion, as it was filed after the dismissal. Although appellant impliedly sought a ruling within his motion to set aside the order of dismissal, as a favorable nunc pro tunc ruling on the leave of absence request would form a basis for setting aside the dismissal, the court lost jurisdiction of both. This occurred because on the same day as the motion to set aside was filed, a notice of appeal was also filed. Thus there is nothing to review insofar as an application of USCR 16 is concerned.

Deen, Presiding Judge,

dissenting.

While agreeing with the majority opinion’s conclusion that the trial court did not abuse its discretion in denying the application for leave of absence filed by the appellant’s counsel, I cannot concur with the affirmance of the trial court’s dismissal of the appellant’s action.

As discussed by the majority opinion, counsel’s failure to comply with Rule 16 of the Uniform Superior Court Rules justified denial of the requested leave of absence. However, it is equally clear that under Rule 7.1 of those uniform rules, dismissal of Bryant’s action was inappropriate. That rule provides that “[f]ailure of counsel to appear at the pre-trial conference without legal excuse or to present a proposed pre-trial order shall authorize the court to remove the action from any trial calendar, enter such pre-trial order as the court shall deem appropriate, or impose any other appropriate sanction, except dismissal of the action with prejudice.”

The majority opinion does not address the applicability of Rule 7.1, ostensibly because the appellant did not specifically identify the violation of that rule as error. In his notice of appeal, however, Bryant specifies that he is appealing from the order dismissing his case, and the gist of his argument simply is that the dismissal was error because (1) the trial court erred in denying the leave of absence requested by Bryant’s counsel; and (2) had the trial court properly granted the leave of absence, there would have been no pre-trial conference, thus eliminating the basis for the dismissal. This sufficiently raised the issue of the propriety of dismissal for counsel’s failure to attend the pre-trial conference or to present the plaintiff’s portion of the pretrial order. This much is common sense, and “the application of more of common sense and less of technicality is in accord with later-day notions of the courts.” Crawford v. State, 4 Ga. App. 508, 509 (61 SE 886) (1908). In holding otherwise, the majority opinion demands strict observance of the uniform rules from litigants, but not from the judiciary.

The majority opinion quotes from Hurston v. Ga. Farm Bureau &c. Ins. Co., 148 Ga. App. 324, 326 (250 SE2d 886) (1978), wherein it was held that an appellant may not enlarge an enumeration of error to include other issues. However, Hurston is inapposite here. As discussed above, the issue raised by the appellant’s enumeration of error was the propriety of the trial court’s dismissal of his action because of counsel’s failure with regard to the pre-trial conference and order. Consideration of Rule 7.1 neither enlarges the issue raised by Bryant nor manufactures another one. Just as nothing precludes this court from applying case law not cited by an appellant in addressing an enumeration of error, nothing should foreclose application of that uniform rule in addressing the issue raised by Bryant in this case.

I must respectfully dissent.

I am authorized to state that Presiding Judge Banke, Judge Pope, and Judge Benham join in this dissent.

Decided July 12, 1988

Rehearing dismissed July 28, 1988.

Lucinda Stevens, for appellant.

James E. Graham, for appellee.


author: Carley, Judge.

text:
    76432.
    DEAN v. THE STATE.
    (372 SE2d 286)
    Decided July 14, 1988
    Rehearing denied July 28, 1988

      N. Lee Presson, for appellant.

      Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assis

      tant District Attorney, for appellee.
   Carley, Judge.

Appellant was indicted for the misdemeanor offense of hindering a police officer in violation of former OCGA § 16-10-24. Appellant’s first trial ended in a mistrial when the jury was unable to reach a unanimous verdict. Appellant was retried and the jury returned a verdict of guilty. The trial court denied appellant’s motion for new trial. Appellant now appeals from the trial court’s order denying his motion for new trial and from the judgment of conviction and sentence which were entered on the guilty verdict.

1. Several of appellant’s enumerations of error relate to the conduct of the trial. However, the trial was not reported, and, consequently, there is no transcript of the trial. See OCGA § 5-6-41 (b). Appellant has also failed to follow the statutory procedures for securing either a transcript prepared from recollection or a stipulation of the case. See OCGA § 5-6-41 (g, i). “In the absence of a transcript, we cannot consider enumerations of error based on the evidence or proceedings at trial. [Cit.]” Malak v. State, 185 Ga. App. 313 (2) (363 SE2d 824) (1987).

2. Appellant enumerates as error the trial court’s denial of his motion for new trial on the grounds of ineffective assistance of trial counsel.

“The trial court held a hearing, made findings of fact, and entered an order holding that [appellant] had not been denied effective assistance of counsel. We have reviewed the record, and because the findings of the trial court are not shown to be clearly erroneous, we affirm. [Cit.]” Smith v. State, 256 Ga. 483 (351 SE2d 641) (1986).

3. We have considered appellant’s remaining enumerations and find them to be without merit.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


author: Beasley, Judge. Birdsong, Chief Judge,

text:
    75829.
    WHITELEY v. THE STATE.
    (372 SE2d 296)
   Beasley, Judge.

Whiteley was convicted of improper lane usage (OCGA § 40-6-40) and driving under the influence of alcohol (OCGA § 40-6-391 (A) (1) & (4)). The subsection (4) conviction was merged with the subsection (1) conviction for sentencing.

1. The primary question on appeal is whether the trial judge abused his discretion in denying a mistrial and instead instructing the jury to disregard the arresting officer’s statement, which was not specifically solicited but was made in the course of explaining the preliminary tests for sobriety he conducted when he stopped defendant.

After eliciting the officer’s background and referring him to the date in question, the solicitor asked the witness: “Would you tell the jury, please, in a chronological sequence, what contact you had with this defendant?” The witness gave a detailed narrative, including a description of all of the manifestations which led him to believe that defendant was driving under the influence and which caused him to arrest defendant and take him in for a statutory test. In the course of explaining what field tests he administered and their results, he stated: “I asked him to submit to another field test, which is an alcosensor test that we give out in the field also — he said he would take that. He read .12. . . Defendant objected, without stating the grounds, and the court immediately instructed the jury to disregard the results because they were not admissible since the field test was not developed sufficiently to be admissible at trial and was only a device for determining probable cause.

After questioning the officer out of the presence of the jury and hearing from the solicitor, defendant moved for a mistrial on the grounds of prosecutorial misconduct and inherent prejudice from the statement itself. It appeared that the state was not aware that the witness might give the results and had not talked to the witness about this evidence. It also appeared that the witness, while knowing that such test results were not admissible for the purpose of proving that defendant was driving while under the influence, did not realize that he could not give them as reason for his arrest of defendant.

The court denied the mistrial and again clearly and firmly instructed the jury not to consider the statement. It was thus summarily and conclusively excluded from evidence. The record does not support an assumption that, as a matter of law, the curative instructions were not, or could not be, adhered to by the jury; nor does it support a conclusion that, as a matter of law, the court abused its discretion in choosing a less extreme remedy. Stanley v. State, 250 Ga. 3, 4 (2) (295 SE2d 315) (1982); Barrow v. State, 235 Ga. 635, 640 (8) (221 SE2d 416) (1975); see also Calloway v. State, 165 Ga. App. 511 (301 SE2d 678) (1983).

The trial judge expressly found as fact that there was no prosecutorial misconduct, and this is supported by the evidence that the state’s counsel talked to the witness for only a few minutes before trial and not at all about the field test. It is implicit that he considered the officer’s explanation of why he stated it. We are bound by that finding as this court is not a trial court and not a factfinder. Byrd v. State, 171 Ga. App. 344, 345 (3) (319 SE2d 460) (1984). As to the question of prosecutorial misconduct which may warrant mistrial, see Hampton v. State, 179 Ga. App. 14 (345 SE2d 117) (1986), and the cases cited therein.

It was also the trial court’s judgment, based on the content and the circumstances in which the statement was uttered, that although the officer knew that the results of such tests could not be admitted as evidence of the ultimate issue of alcohol-influenced driving, the jury’s hearing the statement could be cured of any influence such a hearing might have in the determination of guilt, by instruction. The trial court has broad discretion in fashioning a remedy to alleviate a problem created by the utterance of inadmissible evidence, and its exercise may not be reversed unless abused. See discussion, 28 Encyl. Ga. Law, “Trial” § 46.

The record does not support a conjecture that the trial court misapprehended that prejudicial error itself would not be cause for mistrial even if there was no prosecutorial misconduct in causing error. The motion was stated to be based on the two grounds, prejudicial error and prosecutorial misconduct prompting the error. After expressing the finding that there was no prosecutprial misconduct, the court explained that the instructions cured the error and, to assure that, it would so instruct the jury again. Thus it is clear that the court considered the ground of prejudice itself and rejected it. We do not assume that the court erred, particularly where the record complements the presumption that it did not.

While the ruling does not appear to be even equivocal on this point, even if it were, it would be subject to the same principle which relates to orders: “If an order is equivocal and susceptible of more than one interpretation, it will be construed consistently with the theory that the judge performed his duty by considering the evidence and making a finding from it, where the issue is one for such determination.” Fortson v. Fortson, 195 Ga. 750, 758 (3) (25 SE2d 518) (1943). As further noted in Smith v. Manley, 96 Ga. App. 158, 161 (99 SE2d 534) (1957), “this court will not presume the trial court committed error where that fact does not affirmatively appear.” The judge is presumed to know the law, not the opposite.

Here, then, the presumption is that the court knew that prejudicial error, when the prejudice cannot be removed by jury instruction, requires mistrial.

We cannot say that, as a matter of law, the curative instructions were insufficient in this case to ameliorate the making of the statement which was promptly expelled from evidence. We do not assume that the jury could not or did not abide by the judge’s instructions. They were given immediately after the gratuitous statement was made by the witness, and the court even explained why the evidence could not be considered. Plus they were repeated as soon as the jury returned after the court and counsel considered the matter more fully out of its hearing.

While we agree that any law enforcement officer, and much more one as experienced as the witness in this case, should be apprised and apprise himself of the rules in connection with his testimony and abide by them, the law does not require a mistrial when one is breached. Whether it was a deliberate and conscious disregard in this case was not found by the trial judge, and on review we cannot make original findings or assume facts. We cannot ascertain from the record the manner in which it was said or the inflections and other facets of the excised communication. Nor can we sit in judgment of the sincerity of the witness when asked to explain the making of the statement, since we were not present to hear or observe him as was the trial judge.

Even if it was uttered with a sinister motive, a mistrial would not be required, because the question is one of fair trial. Stanley, supra. The chastisement of errant officer witnesses, in the absence of incurable prejudice to defendant arising from the officer’s error as a matter of law, gives the mistrial a different, administrative purpose. It reaches beyond a consideration of whether the trial court, whose duty is to provide defendant with a fair trial and not to use trial abortion to sanction law enforcement officers for testimonial errors, erred in excising the statement rather than starting the trial anew. The trial court’s role, in considering a mistrial, is to determine if such “is essential to the preservation of the right to a fair trial, . . .” Stanley, supra at 4; Eaton v. State, 184 Ga. App. 645, 646 (2) (362 SE2d 375) (1987). Our role, as an intermediate appellate court, is limited to correcting lower court errors of law. Ga. Const. 1983, Art. VI, Sec. V, Par. Ill; Byrd, supra at 345 (3).

2. Appellant finds fault also with the remark of the trial court when interrupting defendant’s closing argument. The argument is not transcribed, so we do not know precisely what counsel said which the trial court believed was misleading. From what counsel and the court said at the interjection and thereafter, however, it appears that counsel was creating the impression that the breath (intoximeter) test, rather than a blood test, did not have the law’s approval as an accurate measuring device. Since it does, by legislative policy, OCGA § 40-6-392, the trial court was correct.

Of course, this derivation of what was said by counsel in argument, and the corresponding reaction of the court, is handicapped by the absence of a record of what the trial court was referring to. But it is appellant’s obligation to provide the record substantiating his claim, OCGA § 5-6-41, and in its absence, we must affirm as to that issue. Dyer v. State, 154 Ga. App. 421, 422 (268 SE2d 758) (1980).

A new trial (or ultimate discharge of defendant on double jeopardy grounds, considering the egregiousness of the error as viewed by appellant, see the discussion in Hampton, supra) is not required since Whiteley was not deprived of his right to a fair trial, and the judgment of conviction should stand as to this issue.

3. Whiteley enumerates the admission into evidence of the intoximeter printed results. Officer Jones, the operator of the Intoximeter 3000, testified as to the results of the test which he administered to Whiteley. The State tendered into evidence one of the three copies produced by the machine at the time the test was administered. The exhibit was objected to on two grounds: (1) hearsay and (2) cumulative, serving as a written memo of testimony already given and therefore unduly emphasizing that evidence.

The operating record was not subject to the objections made. “As a writing in proof of an act or transaction, the instant report was admissible as direct evidence of the manner in which a scientific test was conducted and of the results thereby obtained. [Cits.] The proscription on the jury’s possession of ‘written testimony’ does not extend to documents which are themselves relevant and admissible as original documentary evidence in a case. [Cit.] ” Munda v. State, 172 Ga. App. 857, 860 (2) (324 SE2d 799) (1984).

4. Defendant claims error in the failure to give his requested charge cautioning that a police officer’s testimony should not be given weight due to his position. The court gave the Suggested Pattern Jury Instructions charge on credibility of witnesses. This was sufficient. Vasquez v. State, 182 Ga. App. 850, 851 (2) (357 SE2d 302) (1987). We find no Georgia authority supporting the requested instruction or regarding as reversible error the failure to give it.

5. Defendant also contends that his requested charge on reckless conduct, OCGA § 16-5-60, was required to be given as a lesser included offense of DUI. Apparently, defendant contends that the accusation under which he was tried alleged this crime as well as DUI, thereby entitling him to a jury charge on it.

Since reckless conduct requires harm or danger to “another per-

son,” an element not required by OCGA § 40-6-391 to be alleged and proven, it is not a lesser included offense as a matter of law. OCGA § 16-1-6 (2); see Horowitz v. State, 243 Ga. 441 (254 SE2d 828) (1979); Bowers v. State, 177 Ga. App. 36, 39 (2) (338 SE2d 457) (1985). It also was not a lesser included crime as a matter of fact, because the accusation includes no allegation of harm or danger to another person and there was no proof of such at trial. Therefore, no charge on this separate crime was required. OCGA § 16-1-6 (1); State v. Hightower, 252 Ga. 220, 221 (312 SE2d 610) (1984).

Judgment affirmed.

Deen, P. J., McMurray, P. J., and Pope, J., concur. Carley, J., concurs in Divisions 2, 3, 4, 5, and in the judgment. Birdsong, C. J., Banke, P. J., Sognier and Benham, JJ., dissent.

Birdsong, Chief Judge,

dissenting.

The majority concedes the inadmissibility of breath analysis test results because the alcosensor device does not prove blood-alcohol content, but says any prejudice caused by the blurting out of this evidence by a State’s witness who well knew it was inadmissible, was cured by the trial court’s “expelling” it from the evidence. With that conclusion in Division 1, we do not necessarily disagree.

Abruptly, however, the majority then turns about-face and espouses the exact opposite evidentiary premise, so as to excuse the trial court’s remark before the jury that defense counsel’s closing argument contending the test did not prove blood-alcohol content was “somewhat misleading,” and that “[y]ou [defense counsel] stated twice it’s not blood-alcohol. The law . . . allows analysis of . . . breath ... to establish blood alcohol content.”

With this statement, the trial court validated the alcosensor breath test as analytic proof of intoxication, and reinserted the police officer’s prejudicial testimony as to the results. And the majority in Division 2 says this statement was correct, “[s]ince [the alcosensor test] by legislative policy [has the law’s approval as an accurate measuring device], OCGA § 40-6-392.”

This statement by the majority is a complete misconstruction of the plain words of the law, and a direct contradiction of its own holding in Division 1. OCGA § 40-6-392 does not approve a breathalyzer “as an accurate measuring device” to prove blood alcohol content. The statute, at paragraph (a) only approves, as admissible at trial, “evidence of the amount of alcohol . . . in a person’s blood at the alleged time, as determined by a chemical analysis of the person’s . . . breath. . . .” (Emphasis supplied.)

In paragraph (b) of § 40-6-392, it is provided that upon a trial for DUI, “the amount of alcohol in the person’s blood at the time alleged, as shown by a chemical analysis of the person’s . . . breath . . . shall give rise to the following presumptions. . . .” (Emphasis supplied.)

Since the breath test, as conceded by the majority in Division 1, does not prove the amount of alcohol in the person’s blood, it is not admissible under § 40-6-392. But in Division 2, the majority says it is an accurate measuring device for blood alcohol content under § 40-6-392.

Appellant’s entire defense was that he had ingested pizza with beer immediately before being stopped, and “at the time alleged” (id.) was not driving under the influence in violation of the code sections because the alcohol content in his blood was not proved to the presumptive DUI standards of § 40-6-392 (b). Regardless what one may think of this defense, the appellant is entitled to have it. If the impression given by the police officer as to his blood alcohol content by blurting out the .12% results of the breath test was “expelled” by the trial court’s curative instruction, this prejudice was reinjected powerfully when the trial court called “somewhat misleading” the defense position “that [according to the majority’s inference] the breath test . . . did not have the law’s approval as an accurate measuring device” proving blood alcohol content.

When the trial court incorrectly stated, in the jury’s presence that “[t]he law . . . allows analysis of . . . breath ... to establish blood alcohol content,” the denuding of the defense was complete. Enough of the dialogue in closing argument was transcribed to show clearly what it was the defense had argued and what the trial court labelled “misleading.” In finding what it appeared the defense counsel argued and that the trial court’s statements were correct, the majority concedes this much. Despite the majority’s gratuitous remark about the defendant’s failure to substantiate his claim by providing the whole record of closing argument, the one we have before us is more than enough to clearly prove the trial court powerfully resuscitated and exacerbated the prejudice originally caused by the State’s witness blurting out the alcosensor results which he knew were inadmissible.

If the majority, as it does, must make completely antithetical arguments as to two separate errors, and in my opinion incorrectly interpret the statute’s clear meaning, in order to rule both of the errors harmless, then the majority, in disproving itself, has proved the conviction cannot be sustained. The jury, having been incorrectly told by the judge that the appellant’s defense was “misleading,” could not possibly reach a fair verdict.

The appellant should be entitled to a new trial.

I respectfully dissent. I am authorized to state that Presiding Judge Banke, Judge Sognier and Judge Benham join in this dissent.

Decided July 15, 1988

Rehearing denied July 29, 1988

Victor C. Hawk, for appellant.

Michael C. Eubanks, Solicitor, H. Scott Allen, Assistant Solicitor, for appellee.