text:
    A90A2155.
    A90A2156.
    HAYNES v. THE STATE. FLOURNOY v. THE STATE.
    (404 SE2d 585)
   Pope, Judge.

Defendants/appellants Rico Haynes and Alfonzo Flournoy, along with co-defendant Christopher Wilson, were jointly tried on an indictment charging them with four counts of aggravated assault. The jury found Flournoy and Wilson guilty on all four counts and Haynes guilty on count three. Haynes and Flournoy filed separate appeals to this court, which we have consolidated for review. Held:

Although not without conflict, construed so as to support the guilty verdicts, the evidence shows the following: On January 29, 1989, the defendants, sometimes referred to as the “Moultrie boys” were at a club known as AJ’s Place or Jones disco in Mitchell County, Georgia. Also present at the club were persons known collectively as the “Albany boys.” Haynes, a member of the Moultrie group, approached Leroy Wilson, a member of the Albany group, and stated to him that he was not involved in whatever took place that night Flournoy then approached Wilson; according to Wilson, Flournoy had on a previous occasion robbed him at gunpoint. Wilson pushec Flournoy, who removed a gun from inside his jacket and began firing Other members of the Moultrie boys also began firing into the crowded club. Leroy Wilson, Randy Donalson, Ernest Mitchell and Vernita Hartsfield were shot and suffered injuries of varying severity.

Various witnesses testified at trial that all of the defendants, as well as other persons identified as members of the Moultrie group, had guns and several witnesses testified they saw defendants Flournoy and Christopher Wilson fire their weapons. When police arrived they were told by witnesses that those involved in the shooting had arrived in a gray and white Blazer and that following the shooting the defendants disposed of their weapons in some nearby woods. Police officers found defendant Haynes sitting in the back seat of the Blazer with a loaded ammunition clip placed between his feet. A search of the woods uncovered an Intertech semi-automatic pistol, minus the ammunition clip, and a loaded .38 caliber pistol and four bullets. Officers also found a .38 caliber weapon with four “live” rounds inside the club and one “spent” round. The next day another weapon was found in the same wooded area.

Case No. A90A2155

1. In his first two enumerations of error defendant Haynes contends the evidence was insufficient to support his conviction of aggravated assault of Leroy Wilson. Although it is true, as defendant argues, that none of the witnesses at trial testified they saw Haynes fire a weapon, several witnesses did testify they saw Haynes with a weapon during the shooting and witnesses at the scene identified Haynes as being involved in the altercation. Leroy Wilson testified that immediately following the shooting he overheard someone who sounded like Haynes, although he could not be positive of the identi-jfication because he could not see the speaker, state to the others that they should dispose of their weapons. When officers arrived they found the weapons used in the shooting (including an Intertech semiautomatic) in a nearby wooded area and they found Haynes sitting in the back of the Blazer with the Intertech ammunition clip placed between his feet. We find this evidence, as well as other evidence [presented at trial, sufficient to support Haynes’ conviction of the of[fense of aggravated assault, as a party to that crime, beyond a reason[able doubt. See OCGA § 16-2-20; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see also Lubiano v. State, 192 Ga. App. 272, 274 (1b) (384 SE2d 410) (1989); Miller v. State, 174 Ga. App. 42, 43 (1) (329 SE2d 252) (1985); Thompson v. State, 168 Ga. App. 734, 736 (4 & 5) (310 SE2d 725) (1983).

I 2. In his next five enumerations of error Haynes argues the trial |:ourt erred in admitting, over objection, evidence of allegedly similar Iransactions on the basis the State failed to show sufficient similari-|ies between the prior and subsequent offenses. “ ‘ “Evidence of other similar crimes by a defendant is admissible if there is sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. Such evidence may be admitted to show state of mind or intent of a defendant. . . .” (Citations and punctuation omitted.) Sparks v. State, 172 Ga. App. 891, 892-893 (324 SE2d 824) (1984).’ Tucker v. State, 191 Ga. App. 648 (382 SE2d 425) (1989).” Flanagan v. State, 193 Ga. App. 408, 409 (2) (388 SE2d 29) (1989). See also Hicks v. State, 232 Ga. 393, 396-397 (207 SE2d 30) (1974).

The complained-of evidence related to a “drive-by” shooting of an occupied vehicle and an occupied dwelling. The prior offenses occurred at approximately 3:00 p.m. on the same day of the shooting at AJ’s. It is undisputed that defendants in the case at bar, as well as other members of the “Moultrie boys” were involved in the earlier incidents. The same types of weapons were used in both the drive-by shootings and the shooting at AJ’s; in the earlier occurrences defendants fired indiscriminately into an occupied vehicle and dwelling and in the later incident defendants fired indiscriminately into a crowded room.

Although Haynes suggests on appeal that the crimes are not sufficiently similar because he was charged with criminal damage to property in the first degree for the drive-by shootings and aggravated assault in connection with the shooting at AJ’s, we do not find that distinction dispositive. The fact that no person was injured in the earlier occurrences was merely fortuitous. Moreover, the earlier incidents, as was the shooting in this case, were precipitated by previous “trouble” between defendants and the intended victims or the victims’ associates or families.

“ ‘In the case before us, we have no hesitancy whatever in holding that the two transactions were sufficiently similar to render evidence of the earlier transaction admissible for the purpose of illustrating the (defendant’s) motive, plan, scheme, bent of mind, and course of conduct. (Cits.)’ [Cits.]” Flanagan, supra at 410. This enumeration is without merit. See also Aaron v. State, 195 Ga. App. 339 (1) (393 SE2d 698) (1990); Henderson v. State, 190 Ga. App. 243, 244 (3781 SE2d 530) (1989).

3. Haynes next contends the trial court abused its discretion inj limiting his cross-examination of Leroy Wilson. The transcript shows! that counsel for co-defendant Flournoy sought to elicit testimony! from the witness concerning where the witness had stayed the night! before the trial, in order to impeach the witness by showing he was incarcerated for pending criminal charges. The trial court sustained! the State’s objection to the question on the ground that defense counl sel’s questioning of the witness was an improper method of impeach ! ment under the best evidence rule. Haynes argues that the trial court’s ruling was improper under the holding in Hines v. State, 249 Ga. 257, 259 (2) (290 SE2d 911) (1982). We find no error.

In Hines, defense counsel was allowed to cross-examine the State’s key witness about his incarceration and pending criminal charges against him “to find out if any deal had been made in return for his testimony and to find out if [the witness] might tacitly assume that he would receive some benefit by giving testimony favorable to the state.” Id. at 258. However, the transcript in this case does not reflect that defendants sought to question the witness here about his possible bias or to expose his interest in testifying for the State, but merely urged that “it is proper impeachment of a witness to use pending . . . charges, and that that could be done by cross examination of the witness.” We decline to read Hines so broadly. “[E]vidence of a pending charge against a witness may be admissible to show the witness’ interest in cooperating with the [S]tate in order to have the charge against him dismissed or reduced. . . . However, the record [in the case at bar] fails to reflect that this reason was urged at trial. . . . Thus, we find no harmful error regarding [this enumeration].” Strickland v. State, 257 Ga. 230, 233 (4) (357 SE2d 85) (1987). Accord Williams v. State, 251 Ga. 749, 799-800 (12) (312 SE2d 40) (1983); cf. Harrison v. State, 259 Ga. 486 (3) (384 SE2d 643) (1989); Owens v. State, 251 Ga. 313 (1) (305 SE2d 102) (1983).

4. Haynes also argues the trial court abused its discretion in denying his pre-trial motion to sever the trial of his case from that of his co-defendants. “ ‘(T)he burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. (Cit.) He must make a clear showing of prejudice and a consequent denial of due process. (Cits.)’ Cain v. State, 235 Ga. 128, 129 (218 SE2d 856) (1975). [After reviewing the record in this case, including the affidavits filed in support of Haynes’ motion to sever, we find n]o such showing has been made in the present case. Accordingly, no abuse of discretion by the trial court has been established.” Reedman v. State, 193 Ga. App. 688, 690 (4) (388 SE2d 763) (1989). See also Stevens v. State, 165 Ga. App. 814 (3) (302 SE2d 724) (1983).

5. For the reasons stated above, we also conclude that the trial court properly denied Haynes’ motion for new trial.

Case No. A90A2156

6.Defendant Alfonzo Flournoy also asserts the trial court erred in limiting defense counsel’s cross-examination of Leroy Wilson, arguing for the first time on appeal that the disallowed question was an attempt to reveal any deals the witness may have made in exchange for his testimony. However, as stated in Division 3, supra, the transcript shows that this reason for allowing the defendants to question the State’s witness about his incarceration was not urged before the trial court. “ ‘Grounds which may be considered ... on appeal are limited to those which were raised at trial.’ Proffitt v. State, 181 Ga. App. 564 (2) (353 SE2d 61) (1987).” Shortes v. State, 193 Ga. App. 859, 860 (2) (389 SE2d 354) (1989). Consequently, this enumeration affords no basis for reversal.

Decided February 15, 1991

Rehearing denied March 26, 1991.

Robert C. Richardson, Jr., for appellant (case no. A90A2155).

Michael L. Bankston, for appellant (case no. A90A2156).

J. Brown Moseley, District Attorney, Ronald S. Smith, John\ Tracy, Assistant District Attorneys, for appellee.

7. Flournoy next contends the trial court erred in denying his pre-trial motion to sever on the basis that he was prejudiced by testimony at trial that showed some of the witnesses were confused about the identity (or at least the names) of some of the participants in the shooting. However, the transcript shows Flournoy was unequivocally identified as being involved in the shooting and was specifically identified by several witnesses as having been the first to fire shots. Consequently, we fail to see, and defendant has failed to show, how he might have been prejudiced by testimony which may have indicated some confusion about the names or identity of others who also may have been involved in the offenses charged. Consequently, the trial court did not abuse its discretion by refusing to grant Flournoy’s motion to sever. See Stevens v. State, supra at (3).

8. Contrary to Flournoy’s next enumeration assigning error to the admission of similar transaction evidence, the evidence shows that Flournoy participated in both the drive-by shooting of the vehicle as well as the drive-by shooting of the dwelling. Moreover, the fact that Flournoy pled guilty to only the latter offense does not render the former inadmissible under the facts of this case.

9. Lastly, Flournoy challenges the sufficiency of the evidence. However, the evidence against Flournoy was not only sufficient, it was overwhelming. Consequently, this enumeration is without merit.

Judgments affirmed.

Beasley and Andrews, JJ., concur.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A90A2177.
    DACOSTA v. ALLSTATE INSURANCE COMPANY.
    (404 SE2d 627)
   Pope, Judge.

This is the second appearance of this case before this court. The facts of this case are reported in Dacosta v. Allstate Ins. Co., 188 Ga. App. 10 (372 SE2d 7), cert. denied, 188 Ga. App. 911 (1988) (hereinafter referred to as Dacosta I). In Dacosta I, this court, applying Tennessee law under the doctrine of lex loci contractus, upheld an endorsement to the uninsured motorist provisions of an automobile policy issued in Tennessee by the appellee Allstate Insurance Company that allowed Allstate to offset workers’ compensation benefits received by the claimant against the amount of uninsured motorist benefits which would otherwise be due under the policy. In so holding, this court specifically rejected appellant’s argument that the endorsement contravened the public policy of this state.

Upon remittitur, a non-jury trial was held at which time the parties stipulated, inter alia, the amount of uninsured motorist benefits available under the policy ($100,000) and the amount of workers’ compensation benefits received by the appellant (also $100,000). The trial court awarded appellant $200,000 damages for pain and suffering; however, pursuant to this court’s holding in Dacosta I the trial court held that Allstate was entitled to reduce its $100,000 liability under the policy by the $100,000 appellant received from workers’ compensation benefits. The trial court further ordered that judgment be entered in favor of Allstate and that appellant pay all costs of the litigation.

1. On appeal, appellant contends that the trial court erred by finding appellee was entitled to reduce its $100,000 liability limits under the uninsured motorist provisions of its policy by the $100,000 appellant received in workers’ compensation benefits; by applying Tennessee instead of Georgia law to determine the enforceability of the policy endorsement; by finding the endorsement does not contravene the public policy of this state; and by entering judgment in favor of Allstate and taxing all costs to the appellant.

It is readily apparent that the first three of appellant’s arguments are patently without merit. “In entering this judgment, the trial court was complying with the ‘law of the case’ rule. OCGA § 9-11-60 (h) provides ‘that any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in the case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.’ There can be no argument but that this rule applies, for it was in [Dacosta /] that [these exact issues were] decided. The rule applies because the same parties and issues are involved and the evidentiary posture of the case [except for the fact that appellant has received additional workers’ compensation benefits since the first appearance of this case] remains the same.” Bruce v. Garges, 259 Ga. 268, 270 (2) (379 SE2d 783) (1989). Moreover, suffice it to say that we have examined the arguments raised in appellant’s supplemental brief to this court concerning the non-application of the above principle of law to the present case and find them to be without merit.

Decided March 8, 1991

Rehearing denied March 26, 1991

George P. Graves, for appellant.

Fain, Major & Wiley, Thomas E. Brennan, for appellee.

2. Contrary to appellant’s remaining argument on appeal, OCGA § 9-11-54 (d) gives the trial court discretion in awarding costs to the parties. See Gold Kist v. Williams, 174 Ga. App. 849, 850 (4) (332 SE2d 22) (1985). “Sometimes it is not so clear who the prevailing party is, as one party may win on some issues and claims and the other on other issues and claims. That is why it is well that the rule allows the trial judge some discretion in the matter [of awarding] costs.” H. Gregory, Georgia Civil Practice Sec. 7-1 (D), p. 542 (1990). This well describes the situation in the case at bar. Consequently, we cannot say as a matter of law that the trial court erred in awarding costs to appellee under the facts of this case.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A90A2205.
    PIER 1 IMPORTS v. CHATHAM COUNTY BOARD OF TAX ASSESSORS.
    (404 SE2d 637)
   McMurray, Presiding Judge.

The Board of Equalization of Chatham County assessed 1989 ad valorem taxes against merchandise found at Pier 1 Imports’ (“Pier 1”) warehouse located in Chatham County, Georgia. Pier 1 appealed to the superior court, contending that the merchandise is exempt from ad valorem taxation because it is “[f]oreign merchandise in transit” pursuant to OCGA § 48-5-5, i.e., “Foreign merchandise in transit shall acquire no situs so as to become subject to ad valorem taxation by political subdivisions of this state in which the port ofj original entry or the port of export of such merchandise is located.”

The case was tried before a jury to determine, in pertinent part,! whether the goods were moved by waterborne commerce through any port located in Georgia so as to qualify as foreign merchandise in transit. In this regard, the evidence revealed the following:

On January 1, 1989, Pier 1 was holding a large percentage of merchandise at its warehouse in Chatham County, Georgia, for distribution to various southeastern retail stores. Pier 1 received an unspecified portion of this merchandise from domestic suppliers. The remaining merchandise was received from foreign suppliers and cleared through the United States Customs Service in Savannah, Georgia. An unspecified portion of the imported merchandise was brought into the United States through the port of Charleston, South Carolina, and transported, via land freight carrier (truck or rail), to the “container freight station in Chatham County, Savannah.” The remaining foreign merchandise was brought into the United States through the port of Savannah.

At the close of the evidence, the jury was instructed to enter their verdict on a “SPECIAL VERDICT FORM” and, in compliance with this direction, the jury valued the merchandise at Pier l’s warehouse on January 1, 1989, at $5,000,000 and gave an affirmative response to the question, “Was the merchandise in question moved by waterborne commerce through any port located in this State?” However, the trial court entered a judgment notwithstanding the verdict, finding that the jury’s answer to the preceding question should have been “ ‘no’ instead of ‘yes’ ” because “the great weight of the evidence . . . clearly showed that most of the merchandise in question was moved by waterborne commerce through the Port of Charleston and then was transported over land by truck to Savannah where customs duties were paid on it through the port of Savannah and [that] some of the merchandise was domestic and not foreign. ...” The trial court then determined the assessed value of the merchandise based on the jury’s finding of the property’s fair market value. Pier 1 appeals. Held:

1. In its first enumeration, Pier 1 contends the trial court erred in finding that the merchandise transported from the port of Charleston was not “foreign merchandise in transit.”

OCGA § 48-5-2 (2) defines “foreign merchandise in transit,” as it pertains to imported goods, as “personal property of any description which has been or will be moved by waterborne commerce through any port located in this state and . . . (B) Which was shipped from a point of origin located outside the customs territory of the United States and on which United States customs duties are paid at or through any customs district or port located in this state, although stored or warehoused in the county where the port of entry is located while in transit to a final destination.”

Pier 1 argues that this Code subsection must be liberally construed so as to effectuate the legislative intent of OCGA § 48-5-5, i.e., to encourage “importers like Pier 1 to locate in Georgia. ...” Pier 1 further argues that strict compliance with the statutory definition of “foreign merchandise in transit” would “effectively punish the importer for something over which he has no control,” referring to the evidence which shows that Pier 1 has no control over how imported merchandise is delivered to the port of entry. These arguments are without merit.

“ ‘[W]here a . . . statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms. (Cits.)’ Rayle Electric Membership Corp. v. Cook, 195 Ga. 734, 735 (25 SE2d 574) (1943). ‘In other words the language being plain, and not leading to absurd or wholly impracticable consequences, it is the sole evidence of the ultimate legislative intent.’ Caminetti v. United States, 242 U. S. 470, 490 (37 SC 192, 61 LE 442) (1917); Samuelson v. Susen, 576 F2d 546, 552 (3d Cir. 1978).” Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430).

In the case sub judice, the merchandise received by Pier 1 and delivered to the “container freight station ...” in Savannah, Georgia, via overland transport from the port of Charleston, South Carolina, did not fit into the plain and natural meaning of “foreign merchandise in transit” as defined by OCGA § 48-5-2 (2). It was not “personal property . . . which has been or will be moved by waterborne commerce through any port located in this state. ...” Consequently, the trial court properly found the jury to be incorrect in characterizing the imported merchandise brought into the United States through the port of Charleston as “foreign merchandise in transit.”

2. In the argument supporting its first enumeration, Pier 1 contends the taxation of its merchandise by Chatham County violates the commerce clause of the federal constitution. However, this contention is not enumerated as error. “[A]n enumeration of error may not be enlarged by brief on appeal to cover issues not enumerated. Nobles v. State, 191 Ga. App. 594, 599 (6) (382 SE2d 637) (1989).”, Martinez-Rodriguez v. State, 195 Ga. App. 491, 492 (2) (393 SE2d 748).

3. Pier 1 contends in its second enumeration that the trial court erred in entering judgment notwithstanding the verdict and argues] “the great weight of the evidence showed that the majority of the merchandise in question was originally entered into the United Statesl through the port of Savannah, Chatham County, Georgia.”

Decided March 13, 1991

Rehearing denied March 26, 1991

Bouhan, Williams & Levy, Walter C. Hartridge, Douglas A. Nys-trom, for appellant.

Brennan, Harris & Rominger, Richard J. Harris, Julie D. Majer, Edward T. Brennan, for appellee.

A judgment notwithstanding the verdict is authorized only when the evidence and all reasonable deductions therefrom demand a particular verdict. OCGA § 9-11-50 (b); Wenzcel Tile Co. &c. v. Newman, 194 Ga. App. 776 (1) (391 SE2d 652); Mercer v. Woodard, 166 Ga. App. 119, 127 (13) (303 SE2d 475). In the case sub judice, it is true that the evidence was insufficient to authorize the jury’s verdict that all the merchandise at Pier l’s warehouse on January 1, 1989, was “moved by waterborne commerce through any port located in this state. . .,” but neither did the evidence demand a finding that none of the merchandise was “moved by waterborne commerce through any port located in this state. . . .” On the contrary, the evidence showed that an unspecified portion of the imported goods stored at Pier l’s warehouse on January 1, 1989, was brought into the United States through the port of Savannah. It therefore follows that genuine issues of material fact remain as to what portion of the merchandise found in Pier l’s warehouse on January 1, 1989, was “moved by waterborne commerce through any port located in this state . . .” and whether the goods so imported, if any, were exempt from ad valorem taxation as “foreign merchandise in transit.” See Seabrook Corp. v. Chatham County Bd. of Equalization, 195 Ga. App. 730 (394 SE2d 796). However, it appears that Pier 1 has abandoned these issues by stating during oral argument before this Court and in a supplemental brief that “Pier 1 is willing to have [the Georgia Court of Appeals] decide the issues ... as if all of the merchandise in question was initially discharged at the port of Charleston, South Carolina.” Under these circumstances, we find no harm in the trial court’s judgment notwithstanding the verdict, effectively holding that none of the merchandise in Pier l’s warehouse on January 1, 1989, was exempt from ad valorem taxation under OCGA § 48-5-5.

Judgment affirmed.

Sognier, C. J., and Corley, J., concur.

       OCGA § 48-5-2 (2) defines “foreign merchandise in transit,” as it pertains to imported! goods, as “personal property of any description which has been or will be moved by water-1 borne commerce through any port located in this state and . . . (B) Which was shipped from! a point of origin located outside the customs territory of the United States and on which! United States customs duties are paid at or through any customs district or port located ini this state, although stored or warehoused in the county where the port of entry is located| while in transit to a final destination.”

       Pier l’s Director of International Transportation testified that Pier 1 has no control over how imported merchandise is delivered to the port of entry and that overland shipment [of goods from the port of discharge to the port of entry is a mode of transport referred “to in [today’s real world of international trade or commerce as a mini-land bridge or through bill of lading. . . .”


author: Sognier, Chief Judge.

text:
    A90A2236.
    BERRY COLLEGE, INC. et al. v. STOREY.
    (404 SE2d 640)
   Sognier, Chief Judge.

Jean Storey, an employee of Berry College, damaged her knee in a work-related injury. In addition to the income and medical benefits awarded, Storey sought payment from Berry College and its insurer, Commercial Union Insurance Company, for the cost of domestic household services necessitated by her injury. The administrative law judge found that Storey’s physician had prescribed domestic help and that such help would give relief to her injured knee, and thus ruled that Storey was entitled under OCGA § 34-9-200 (a) to be compensated for those services. The Board of Workers’ Compensation adopted the ALJ’s holding as its own and affirmed. The Superior Court of Floyd County found that the ALJ’s award was not legally impermissible under OCGA § 34-9-200 (a) and affirmed. We granted the application for discretionary appeal filed by Berry College and its insurer.

OCGA § 34-9-200 (a) provides that the employer “shall furnish the employee entitled to benefits under this chapter compensation for costs of such medical, surgical, and hospital care and other treatment, items, and services which are prescribed by a licensed physician, . . . which in the judgment of the State Board of Workers’ Compensation shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment.” As discussed in Interchange Village v. Clark, 185 Ga. App. 97, 99 (1) (363 SE2d 350) (1987), this version of OCGA § 34-9-200 (a), as amended effective July 1, 1985, evinces the intent to rectify a possible deficiency in the former statute in response to cases like Insurance Co. of N. A. v. Money, 152 Ga. App. 72 (262 SE2d 240) (1979), in which this court had denied an injured employee’s claim for compensation for attendant services, non-medical in nature, performed by the employee’s daughter.

1. Appellants contend domestic household services are not com-pensable under OCGA § 34-9-200 (a). We do not agree with appellants’ argument that these services are excluded because they are not “medical” services. Nothing in the statutory language requiring payment by the employer of “medical, surgical, and hospital care and other treatment, items, and services” (emphasis supplied) supports appellants’ argument that an employer’s liability under OCGA § 34-9-200 (a) is restricted to medical (or surgical or hospital) services. Furthermore, in interpreting the statute this court has expressly held that OCGA § 34-9-200 (a) encompasses non-medical services. See Interchange Village, supra at 99 (1). Reading OCGA § 34-9-200 (a) according to the natural and most obvious import of its language, without resorting to subtle and forced constructions for the purpose of either limiting or extending its operation, see generally Georgia Turkey Farms v. Hardigree, 187 Ga. App. 200, 202-203 (369 SE2d 803) (1988), and interpreting that language liberally so as to effectuate the humane objectives of the Workers’ Compensation Act, OCGA § 34-9-1 et seq., see, e.g., U. S. Asbestos v. Hammock, 140 Ga. App. 378, 379 (231 SE2d 792) (1976), we hold that nothing in OCGA § 34-9-200 (a) excludes payment of household maintenance services by an employer to an injured employee when such services “are prescribed by a licensed physician . .. [and] which in the judgment of the [Board] shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment.” Accordingly, the superior court correctly held that, pursuant to OCGA § 34-9-200 (a), appellee is entitled to recover, as an element of her workers’ compensation benefits, the cost of such household maintenance services as were prescribed by her physician. See Interchange Village, supra. But see Division 2, infra.

2. Appellants challenge the evidentiary basis for the Board’s award of domestic household services in the case sub judice. Guided by the well established principle that the ALJ and Board are the factfinders and have the exclusive prerogative of weighing evidence and determining the credibility of the witnesses, we will uphold the findings of fact if supported by any evidence. See Little v. Cox Enterprises, 195 Ga. App. 211, 212 (393 SE2d 57) (1990). However, “[i]n this, as in all workers’] compensation cases, the burden of proof was on the claimant. [Cit.]” Department of Revenue v. Graham, 102 Ga. App. 756, 758 (2) (117 SE2d 902) (1960). While evidence was adduced which established that appellee’s physician prescribed non-specific I domestic household services (leaving it to appellee to determine what ¡services she required to avoid bending the injured knee) and that ap-ipellee’s work-related injury could be relieved by help in the perform-jance of some domestic household services, we find that the ALJ and the Board did not consider the burden placed upon appellee by OCGA § 34-9-200 (a) of proving that the services for which she sought ¡compensation were such to “give relief” directly to appellee’s work-Irelated injury and were exclusively for her benefit.

I The purpose behind OCGA § 34-9-200 (a) is to provide services [prescribed by a licensed physician which “give relief” to the work-[related injury of the employee exclusively. See Division 1, supra. Ac-Scordingly, we hold that the employer is liable under OCGA § 34-9-200 (a) to compensate the injured employee for the full amount of domestic household services only where the factfinder determines that all those services are for the exclusive benefit of the injured employee and directly give relief to the work-related injury. Otherwise, the employer is liable only for a proportional share of the household maintenance services performed in the household to relieve the work-related injury of the employee exclusively (and see OCGA § 19-7-2), regardless of the particular allocation of household maintenance services in the employee’s household prior to the employee’s work-related injury.

Decided March 13, 1991

Rehearing denied March 26, 1991

Lowendick & Speed, J. Wallace Speed, for appellants.

Mundy & Gammage, George E. Mundy, E. Lamar Gammage, Jr., for appellee.

The record reveals that as a result of the injury to appellee’s knee, she has difficulty squatting or bending the knee, and that it was to relieve the injury and expedite the healing process to the knee that the physician prescribed domestic household services specifically so that appellee could avoid bending the injured knee. However, appel-lee acknowledged that her work-related injury does not prevent her from performing her regular activities which do not involve bending or squatting or which require slight bending of the knee, such as using the stairs in her three story home. Her testimony at the hearing detailing the services performed by the domestic help included items which do not necessarily require bending the knee or squatting, such as ironing and vacuuming open areas of the home. Furthermore, since the record indicates appellee’s household includes not only appellee but also her husband, it appears that inquiry was not made whether the services performed by the domestic help were necessarily only those services which would give relief exclusively to appellee or constituted services which appellee’s husband’s hernia condition renders him unable to perform for himself.

Since the evidence positively established that the award of domestic household services to appellee included services for which appellants were not obligated under OCGA § 34-9-200 (a) to pay, the superior court’s affirmance of the Board’s award is reversed with direction that the case be remanded to the Board for action in accordance with this decision.

Judgment reversed and case remanded with direction.

McMur-ray, P. J., and Corley, J., concur.

       OCGA § 34-9-200 (a) was amended in 1990 for editorial changes and for the deletion of the phrase “compensation for costs of’ at the beginning of the sentence, so that the statute now provides that “[t]he employer shall furnish the employee entitled to benefits under this chapter such medical, surgical, and hospital care,” etc. Ga. L. 1990, pp. 1409, 1413. This’ amendment does not affect our holding in this case.


text:
    A90A2334.
    MUNGER v. CENTRAL OF GEORGIA RAILROAD COMPANY.
    (404 SE2d 647)
   Pope, Judge.

Plaintiff/appellant Charlene Munger, individually, and as executrix of the estate of Julius Lee Taylor, Munger’s son (hereinafter “plaintiff”), brought suit against defendant/appellee Central of Georgia Railroad Company (“railroad”) for allegedly causing injury to and the wrongful death of Julius Lee Taylor. The trial court granted summary judgment to the railroad and plaintiff brings this appeal.

Taylor, a boy of 17, was on his way home around 7:00 p.m. on December 4, 1986, accompanied by his friend, Trey Bryant. When the two reached the football field at the high school, they split up. Bryant urged Taylor to walk with him to a point where Bryant’s father was to pick him up in his car and ride home with them. Taylor refused and indicated he would get home by crossing the railroad trestle on foot. The record shows many people in the community, including Taylor’s mother, customarily used the trestle as a shortcut. Bryant warned Taylor it was too dangerous to walk on the trestle in the dark. Taylor ignored him and headed for the trestle. The trestle in question extends over 300 feet and is approximately 60 feet high. Stands formerly used to hold water barrels were attached to the trestle.

When the engineer in charge of defendant’s train, who was maintaining a lookout ahead, first caught sight of Taylor in the beam of his headlight, he saw that Taylor was on the northernmost barrel stand, stretched out on his side apparently trying to get out of the way of the train. Immediately upon sighting Taylor, the engineer applied all brakes to stop the train. However, the train, traveling approximately 35 miles per hour as it approached the trestle, could not stop before it passed the barrel stand occupied by Taylor. After the train stopped, the flagman went to look for Taylor. He found him below the trestle. Although the only outward sign of injury was a cut on the boy’s hand, the flagman knew he was severely injured and radioed for help. Taylor died shortly thereafter.

None of the four crew members operating the train the night of the accident had previously seen anyone on the trestle. Evidence was presented that one employee of defendant, whose duties included inspecting and maintaining the trestle, had seen people walking on it. However, he had never reported this fact to anyone else within the company. Held:

We affirm. “A person who crosses the tracks of a railroad company, not at a public crossing, or at a private crossing established by law, or at a crossing which the railroad keeps up or helps to keep up, but at a place where people are accustomed to cross, and where the railroad has done nothing in an affirmative way, and has merely taken no action to prevent such customary crossing, is a trespasser. The mere fact that the public may have been accustomed to travel on foot along a certain portion of the right of way of a railroad company, and that no measures have been taken to prevent it, does not of itself operate to constitute a person so using the track a licensee of the company; and, in the absence of the company’s permission for such use, such unauthorized custom does not change the relation of one so using the property of the railway company from that of a trespasser.” (Citations and punctuation omitted.) Luck v. Western & Atlantic R., 73 Ga. App. 197, 202 (1) (36 SE2d 59) (1945).

“Ordinarily the only duty owing by a railway company to a trespasser upon or about its property is not to wantonly or wilfully injure him after his presence has been discovered. ...” Hammontree v. Southern R. Co., 45 Ga. App. 728 (1) (165 SE 913) (1932). “The duty of a railroad company to exercise ordinary care to avoid injuring trespassers on its tracks, at places other than those where the servants of the railroad company engaged in operating trains have reason to anticipate the presence of trespassers on the tracks, does not begin until the presence of the trespassers on the tracks becomes known to the servants of the railroad company operating the train. [Cits.]” Central of Ga. R. Co. v. Tapley, 145 Ga. 792, 793 (4) (89 SE 841) (1916).

Applying the foregoing law to the facts of this case, we conclude the trial court correctly granted summary judgment to the railroad. The record shows the railroad met its legal duty to Taylor. None of the crew members had ever seen anyone walk on the trestle. There was no reason to anticipate Taylor’s presence. Immediately upon discovering his presence on the trestle, the engineer did all he could do to stop the train to avoid injury to Taylor. That the bridge inspector had seen people use the trestle previously does not change the result. Because that employee had nothing to do with the running or operation of trains, but only with the safe maintenance of the tracks, his knowledge is not imputable to those who ran the train. See Comer v. Hill, 101 Ga. 340, 342 (1) (28 SE 856) (1897); cf. Underwood v. Western & Atlantic R. Co., 105 Ga. 48, 50 (31 SE 123) (1898). The evidence adduced by the railroad rebuts the presumption of negligence granted plaintiff by OCGA § 46-8-292 (formerly codified as Ga. Code Ann. § 94-1108). See Southern R. Co. v. James, 170 Ga. App. 73 (316 SE2d 159) (1984); Seaboard Coast Line R. Co. v. Wroblewski, 138 Ga. App. 793 (227 SE2d 438) (1976).

An additional reason exists for the grant of summary judgment. “It is the grossest kind of negligence to walk upon a long and very high trestle of a railroad over which trains are constantly passing.” Atlanta & Charlotte Air-Line R. Co. v. Leach, 91 Ga. 419, 420 (1) (17 SE 619) (1893); accord Phillips v. East Tenn. &c. R. Co., 87 Ga. 272 (13 SE 644) (1891). Taylor’s actions in going upon the trestle and relying on the barrel stand as a place of safety in the event a train passed constituted assumption of the risk and would bar recovery.

Decided March 15, 1991

Rehearing denied March 26, 1991

John M. Brown, for appellant.

Hall, Bloch, Garland & Meyer, F. Kennedy Hall, J. Steven Stewart, for appellee.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: Cooper, Judge.

text:
    A90A2377, A90A2378.
    HEYDE v. XTRAMAN, INC. et al.; and vice versa.
    (404 SE2d 607)
   Cooper, Judge.

This appeal and cross-appeal arise out of a products liability action which resulted from an injury suffered by appellant, Heyde, while using a hoist rented from one of the corporate appellees, Xtraman, Inc. (“Xtraman”). Xtraman began operation in 1980, with the sole shareholders being William Eckes (“Eckes”) and his wife. Eckes personally owned the patent for the manufacture of the hoists, and the company, which owned the assets, engaged in the manufacture, lease and sale of the hoists which were used in the heating and air conditioning business. In April 1984, the corporate minutes reflect that the president reported to the company that the cost of product liability insurance would increase upon the next renewal and that the prices charged for the company’s products should be increased. In April of the following year, the minutes reflect that the president reported that the company’s product, liability insurance had not been renewed and that he was in the process of trying to secure such insurance. However, if the insurance could not be obtained, the company’s policy should be changed to retrenchment rather than growth and the assets and liabilities of the company should be reduced, eventually leading to the dissolution of the company. In April 1986, the president reported that he could not secure affordable insurance, and therefore he had continued to follow the policy of retrenchment during the previous year and assets were being sold with the proceeds used to retire corporate debt. Eckes testified that Xtraman was basically out of operation by the end of 1985 but that administrative functions continued until April 1986, when the final payroll was completed. Appellant rented a hoist from Xtraman on June 27, 1985, and was injured on July 1, 1985. On July 3, 1986, appellant filed a suit against Xtraman only which was dismissed for lack of prosecution in September 1987. On March 2, 1988, a renewal suit was filed against Xtraman and Eckes individually. Subsequently, a second corporation, Hoists, Inc., was added as a defendant to the suit. After Xtraman was dissolved in 1986, Eckes attempted to enter a different business but continued to hold the patent on the hoist. The second business failed and in January 1988, Eckes formed Hoists, Inc. (“Hoists”), which manufactures hoists which are almost identical to those made by Xtraman. Hoists is operating without any products liability insurance, a fact which Eckes stated is conveyed directly to each customer. Consequently, Hoists has no assets and leases all machinery necessary for its operations. Prior to trial, the trial court granted summary judgment in favor of Eckes individually on the theories of negligence, strict liability and breach of implied warranty. The trial was then bifurcated, with the jury considering in the first phase the liability of Xtraman only under the negligence and breach of warranty theories. A verdict was returned against Xtraman for $1,169,000 compensatory and $237,000 punitive damages. The court then granted Xtraman’s motion for a directed verdict and overturned the punitive damage award. In the second phase of the trial, the jury considered the liability of Eckes individually under the theory that he was the “alter-ego” of Xtraman and therefore the corporate veil should be pierced to hold Eckes liable for any liability of the company. The jury also considered the liability of Hoists as the successor corporation to Xtraman. Ap-pellees had submitted a motion for a directed verdict on the personal liability of Eckes under the alter ego theory prior to submission to the jury, and the court reserved ruling on the motion. The jury returned a verdict against both Eckes and Hoists. The court then ruled on the reserved motion for directed verdict and granted it, thereby discharging Eckes from all liability. A judgment was then entered against Xtraman and Hoists for $1,169,000 plus interest.

In Case No. A90A2377, the main appeal, appellant appeals the partial grant of summary judgment in favor of the individual appel-lee, Eckes, and the grant of a directed verdict in favor of Eckes. In Case No. A90A2378, the cross-appeal, cross-appellants appeal the trial court’s ruling which excluded certain testimony at trial.

Case No. A90A2377

1. Appellant first enumerates as error the trial court’s grant of summary judgment in favor of Eckes on the theories of negligence, strict liability and breach of implied warranty. We agree with appel-lees and the trial court that the negligence and strict liability claims against Eckes are barred because they were not timely filed. The statute of limitation for negligence and strict liability claims seeking recovery for personal injuries is two years. OCGA § 9-3-33; Daniel v. American Optical Corp., 251 Ga. 166 (1) (304 SE2d 383) (1983). Although the original suit filed by appellant was dismissed, appellant refiled his case within six months as allowed under the renewal statute, OCGA § 9-2-61. The first suit, however, named only Xtraman as a defendant, whereas the second suit added Eckes as a defendant for the first time. “ ‘To be a good “renewal” of an original suit, so as to suspend the running of the statute of (limitation) . . . the new petition must be substantially the same both as to the cause of action and as to the essential parties. (Cits.)’ ” (Emphasis in original.) Patterson v. Rosser Fabrap Intl., 190 Ga. App. 657, 658 (379 SE2d 787) (1989). “Thus, the renewal statute ‘may not be used to suspend the running of the statute of limitation as to defendants different from those originally sued.’ [Cits.]” Wagner v. Casey, 169 Ga. App. 500, 501 (2) (313 SE2d 756) (1984). Appellant argues that since he presented evidence to show that Eckes was the alter ego of Xtraman, then the rule just quoted should not apply and the statute should be tolled as to Eckes. In Cornwell v. Williams Bros. Lumber Co., 139 Ga. App. 773 (229 SE2d 551) (1976), the alter ego theory was raised as to the defendant’s liability, however the court did not use that theory to toll the statute of limitation as to the different party named in the renewal action. In Atlantic Coast Line R. Co. v. Knapp, 139 Ga. 422 (2) (77 SE 568) (1912) and Wofford v. Central Mut. Ins. Co., 242 Ga. 338 (2) (249 SE2d 21) (1978), the statute was tolled in renewal actions against a successor corporation formed by merger and against a deceased defendant’s administrator or representative, respectively. These cases can be distinguished from the instant case in which two distinct parties are named as defendants. Since the suit against Eckes was not filed until after the applicable statute of limitation had run, the negligence and strict liability claims are barred as untimely.

The breach of implied warranty claim against Eckes, which is governed by a four-year statute of limitation, OCGA § 9-3-25, likewise fails because the rental agreement giving rise to any warranty claim was between Xtraman and appellant. Eckes was not at all a party to the rental contract and cannot be a liable party under a warranty claim which requires proof of privity between the parties. See Gowen v. Cady, 189 Ga. App. 473 (4) (376 SE2d 390) (1988). Eckes’ liability as the alter ego of Xtraman is considered in Division 2 below. Since Eckes was not a party to the rental contract, we need not consider, as to Eckes, the other contentions of appellant based upon the applicability of the Uniform Commercial Code and the disclaimer of warranties. The court properly granted Eckes’ motion for summary judgment on the three theories discussed above.

2. Appellant next contends that the court erred in granting the motion for directed verdict in favor of Eckes on the theory of alter ego or piercing the corporate veil. A directed verdict is “ ‘proper only where “there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” [Cits.]’ [Cit.]” Hiers-Wright Assoc. v. Manufacturers Hanover &c. Corp., 182 Ga. App. 732 (2) (356 SE2d 903) (1987). In Amason v. Whitehead, 186 Ga. App. 320, 321-322 (367 SE2d 107) (1988), we reversed the trial court’s denial of a judgment notwithstanding the verdict in a case where the jury found the corporate veil had been pierced. We stated: “ ‘While upon equitable principles the legal entity of a corporation may be disregarded’ [cit.], great caution should be exercised by the court in doing so. [Cit.] . . . [I]n order to disregard the corporate entity because a corporation is a mere alter ego or business conduit of a person, it should have been used as a subterfuge so that to observe it would work an injustice. To prevail based upon this theory it is necessary to show that the shareholders disregarded the corporate entity and ‘made it a mere instrumentality for the transaction of their own affairs; that there is such unity of interest and ownership that the separate personalities of the corporation and the owners no longer exist.’ [Cit.] ‘ “The concept of piercing the corporate veil is applied in Georgia to remedy injustices which arise where a party ‘has over extended his privilege in the use of a corporate entity in order to defeat justice, perpetuate fraud or to evade contractual or tort responsibility.’ ” ’ [Cit.] Because the cardinal rule of corporate law is that a corporation possesses a legal existence separate and apart from that of its officers and shareholders [cit.], the mere operation of corporate business does not render one personally liable for corporate acts. [Cit.] Sole ownership of a corporation by one person or another corporation is not a factor, [cit.], and neither is the fact that the sole owner uses and controls it to promote his ends. [Cit.] There must be evidence of abuse of the corporate form. [Cit.] Plaintiff must show that the defendant ‘disregarded the separateness of legal entities by commingling on an interchangeable or joint basis or confusing the otherwise separate properties, records or control.’ [Cits.]” (Indention omitted.)

From the evidence adduced at trial, we agree with the trial court that appellant has not presented sufficient evidence to allow a jury to pierce the corporate veil to hold Eckes personally liable for the liability of Xtraman. The process of the retrenchment and dissolution of Xtraman had been instituted for legitimate business reasons before appellant was injured. The dissolution was substantially complete before appellant’s suit was filed. At all times during the existence of Xtraman, Eckes kept detailed corporate and financial records which evidenced his observance of the separateness of himself and the corporation. Appellant has submitted no evidence of fraud, commingling of funds or assets, or undercapitalization. There is no evidence that the formation of Hoists, a legitimate corporation in its own right, would result in piercing the veil of Xtraman pursuant to the above-quoted standards. “We draw no inference of fraud, artifice, or trickery from the [dissolution of Xtraman and the formation of Hoists]. . . . Nor do all of the facts of this case combine to show that the ‘corporate veil’ of [Xtraman] should be pierced.” (Indention omitted.) Williams Plaza v. Sedgefield Sportswear &c., 164 Ga. App. 720, 723 (297 SE2d 342) (1982). “Having failed to show that the corporate entity of [Xtraman] was improperly used to promote fraud or other injustice, [appellant] cannot claim that equity demands disregard of the corporate fiction merely because [Xtraman] is now unable to satisfy its debt. ‘(O)ne who deals with a corporation as such an entity cannot, in the absence of fraud, deny the legality of the corporate existence for the purpose of holding the owner liable.’ [Cit.]” Williams Plaza, supra. The motion for directed verdict was properly granted as to appellant Eckes on the theory of alter ego.

Case No. A90A2378

In this cross-appeal, cross-appellants, Xtraman and Hoists, contend, in a sole enumeration of error, that the trial court erred in excluding in its entirety the testimony of Luther Cox (“Cox”), an expert that cross-appellants sought to call as a witness at trial. Cox was originally retained in September 1985 by an attorney who was then representing cross-appellee, Heyde. Cox was employed to form opinions on the cause of the accident, and in furtherance of his duties, Cox inspected the hoist and other equipment involved in the accident, inspected the site of the accident and interviewed the cross-appellee. He also took various photographs of the equipment and the accident site. Cox reported his findings and turned his file over to the attorney that hired him. Subsequently, Cox communicated with cross-appellee on one occasion but then was uninvolved in the case until shortly prior to trial several years later. Cross-appellants contend that they did not learn of the involvement of Cox until late in the proceedings and stated that upon such discovery, they interviewed him and then subpoenaed him as a witness at trial. There is no contention by cross-appellants that cross-appellee failed to completely and fully respond to all discovery served by cross-appellants. The trial court ruled that the photographs taken by Cox would be admissible if they were shown to be relevant and material. The court further ruled that Cox was excluded from giving any testimony at trial. The court first determined that Cox’s relationship with his original employer, cross-appel-lee, was a privileged one arising from the confidential attorney/client relationship and that Cox was in a position of a conflict of interest by communicating with cross-appellants. Additionally, the court held that the rules of discovery as set forth in OCGA § 9-11-26 (b) (4), which establish the requisite procedures for obtaining information from experts, had been violated. Because cross-appellants made no showing that there was an exceptional need to elicit the testimony of this witness or that a substantial equivalent was unavailable, the court invoked the “basic fundamental concepts of justice” and excluded Cox’s testimony in its entirety. After a review of the record before us and the applicable legal principles, we affirm the court’s decision.

We first agree with cross-appellee that the exclusion of Cox’s testimony was a proper sanction for the violation of the rules of discovery set forth in OCGA § 9-11-26 (b) (4). “Trial courts have broad discretionary powers under the discovery provisions of the Civil Practice Act and appellate courts have consistently refused to interfere with the exercise of a trial court’s discretion except in cases of clear abuse. [Cit.]” Opatut v. Guest Pond Club, 188 Ga. App. 478, 482 (9) (373 SE2d 372) (1988). OCGA § 9-11-26 (b) (4) clearly sets forth the procedures a party must follow to obtain discovery from any expert, both those that the opposing party expects to call at trial and those that are not to be called as witnesses. Cross-appellants did not attempt to follow these procedures and should not now be allowed to circumvent them by engaging in ex parte communications with the opposing party’s expert and then asserting that they are not seeking to engage in discovery but seeking to call a witness at trial. Cross-appellee has cited this court to a federal case which has adopted the position we espouse herein. In Campbell Indus. v. M/V Gemini, 619 F2d 24 (2) (9th Cir. 1980), the court, in considering the federal rule of discovery of experts, upheld the court’s discretion to exclude expert testimony at trial as a sanction for the violation of the rules of discovery. Jones v. Scarborough, 194 Ga. App. 468 (390 SE2d 674) (1990), cited by cross-appellants, is inapplicable because the witness therein was not an “expert” within the ambit of the discovery rules. Sherrill v. Martin, 161 Ga. App. 558 (288 SE2d 648) (1982) is likewise inapplicable because the issue therein was the proper showing of compliance with the discovery rules, not a sanction for avoidance of these rules altogether. The expert in Sherrill was to be called as a witness at trial, therefore the statutory showing of exceptional circumstances did not apply. The case also cited by cross-appellants, Logan v. Chatham County, 113 Ga. App. 491 (148 SE2d 471) (1966), involves the unique issue of the valuation of condemned land and further does not address the issues posed by the clear violation of the rules of discovery as to experts. We conclude that the trial court did not abuse its discretion to impose the sanction of exclusion of Cox’s testimony for the violation of the rules of discovery.

We also determine that the trial court’s reasoning based on the protection of privileged relationships was a sound one. Exclusion of expert testimony at trial when the expert was retained by the opposing party or his attorney has been recognized as proper in certain circumstances in two federal cases cited by cross-appellee, Marvin Lumber &c. Co. v. Norton Co., 113 F.R.D. 588 (D. Minn. 1986) and Paul v. Rawlings Sporting Goods Co., 123 F.R.D. 271 (S.D. Ohio 1988). In Smith v. Smith, 223 Ga. 551 (2) (156 SE2d 916) (1967), it was held that the report of an investigator hired by a husband’s attorney was “as much a part of the attorney’s work as if he had done it himself.” Id. at 556. Therefore, the court denied the wife’s discovery of the report. Cox had been hired by cross-appellee’s attorney and had communicated with that attorney and with cross-appellee about the case in the formulation of his expert opinions. We cannot say that the trial court was incorrect in excluding the testimony.

Decided March 5, 1991

Rehearing denied March 26, 1991

Jeffrey R. Nickerson, for appellant.

Parkerson & Shelf er, William S. Shelf er, Jr., for appellees.

Lastly, notwithstanding our discussion above, we agree with cross-appellee that cross-appellants have not met their burden to show that the contended error was harmful. We do not have before us a complete transcript of the evidence adduced at trial. We do not know if cross-appellants were able to produce the testimony of other experts whose testimony would render Cox’s statements merely cumulative. See Jones, supra at Division 3.

Judgments affirmed.

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


text:
    A90A1598.
    A90A1599.
    BEAMON v. GEORGIA POWER COMPANY. REACH ALL, INC. v. BEAMON.
    (404 SE2d 463)
   Cooper, Judge.

Appellant sustained electrical burns while repositioning an electrical transformer on a utility pole owned by appellee Georgia Power Company (“Georgia Power”) in an aerial lifting device or “bucket truck” manufactured by cross-appellant Reach All, Inc. (“Reach All”). Appellant brought an action against Georgia Power alleging negligence in failing to properly assemble and maintain its electrical power pole and power lines and against Reach All for strict liability, breach of implied warranty and negligence for defects in the bucket truck. Both defendants filed motions for summary judgment, and without making findings, the trial court granted summary judgment to Georgia Power and denied Reach All’s motion. Appellant directly appealed the grant of summary judgment to this court, and Reach All filed a cross-appeal of the denial of its motion pursuant to OCGA § 5-6-38.

Before the accident occurred, appellant, who had been working as a lineman on a bucket truck for three weeks and had no formal training, and his co-worker, an 18-year journeyman lineman, were attempting to secure the release of the transformer from the pole using collar ropes and hoist hooks. Appellant placed a rope collar around the top of the pole from which the transformer would be suspended and lowered into position. Immediately above the workers were three uninsulated phase wires and a neutral wire carrying 25,000 volts, and despite instructions that they were to wear rubber-insulated gloves while in the bucket and to apply rubber “hoses” to energized lines in their vicinity, neither worker was wearing gloves nor were hoses placed on the exposed lines. The lowest phase was approximately 54 inches above the transformer. Appellant admitted not wearing gloves, contending that it was not uncommon for workers to fail to do so as the gloves were hot and cumbersome when handling small objects and when one is not close to phase wires. The workers maintained that they were not within reach of the phase wires, and as a consequence, the wires were not covered at the time of the accident. Appellant was holding a hook in his left hand which was attached to the top of the transformer, and with the belief that the transformer had been disconnected from wires attached to it but realizing it was still attached to the pole, appellant held a second hook in his right hand which was to be attached to the collar rope. As appellant attempted to connect the hook to the collar rope, his right arm came in contact with a phase wire, and he received a full electrical shock. Appellant asserts that immediately preceding the accident, he was not within arm’s reach of the phase wires and contends that the bucket must have lurched upward to put him in contact with the energized wires.

Case No. A90A1598

In his sole enumeration of error, appellant contends the trial court erred in granting summary judgment to Georgia Power and charges that the company negligently bolted its transformer to the power pole such that the transformer contacted a ground wire in violation of Georgia Power’s own specifications, resulting in serious bodily injury. Appellant maintains that the incident was reasonably foreseeable and that he did not assume the risk of such injury.

“A power company is charged with the duty of exercising ordinary care in the construction and maintenance of its wires, poles, transformers and equipment. Ordinary care is that reasonable care and caution which an ordinary cautious and prudent person would exercise under the same or similar conditions. [Cit.]” Collins v. Altamaha E.M.C., 151 Ga. App. 491 (1) (A) (260 SE2d 540) (1979). High voltage lines must be maintained “in such a manner and at such a location as not to injure persons who might be reasonably expected to come in contact with such lines.” Carden v. Ga. Power Co., 231 Ga. 456, 457 (202 SE2d 55) (1973). In support of its contention that Georgia Power was negligent, appellant submitted the affidavit of Clayton Beamon (“Beamon”), appellant’s father and a construction foreman with self-professed familiarity with Georgia Power overhead power lines dating back 20 years, wherein he alleged that appellant was injured as the result of the improper mounting of the transformer to the utility pole over a metal ground wire in violation of certain “Georgia Power Distribution Specifications” which were attached to the affidavit. Georgia Power countered with an affidavit stating that Bea-mon did not set forth sufficient training or experience to enable him to interpret the specifications and draw the conclusions reached in his affidavit; that Beamon took the specifications out of context and arrived at erroneous conclusions; that, nevertheless, the bonding of the ground wire and the transformer did not violate specifications; and that had appellant been in compliance with safety rules, he would not have been injured. Generally, “ ‘[n]egligence issues are not susceptible of summary adjudication except in plain, palpable and indisputable cases. (Cits.)’ [Cit.] ‘The evidence must be construed most favorably to the party opposing the motion for summary judgment; this party must be given the benefit of all favorable inferences and reasonable doubts which may arise from the evidence. (Cits.)’ [Cit.]” Padgett v. M&M Super Market, 195 Ga. App. 799, 800 (395 SE2d 245) (1990). In the instant case, Georgia Power contends that the evidence demonstrates that it breached no duty to appellant; however, in view of the well-established rule stated above and the evidence proffered by appellant, we are constrained to conclude that on this issue there are factual questions to be resolved by a jury. Id. However, the inquiry does not end here; there is no liability “ ‘unless the negligence alleged is the proximate cause of the injury sustained.’ [Cit.]” Dilworth v. Boeckler, 187 Ga. App. 241 (370 SE2d 17) (1988). Appellant’s injury was not merely the result of the alleged improper mounting of the transformer but appellant alleged that his injury was also caused by a defect in the bucket truck which elevated him to the phase wire. Moreover, appellant admits not exercising care for his own safety by failing to wear safety gloves and to insulate the energized wires.

“ ‘ “[T]he causal connection between an original act of negligence and injury to another is not broken by the ‘intervening’ act. . . if the nature of such intervening act was such that it could reasonably have been anticipated or foreseen by the original wrongdoer.” ’ ” Collins, supra at 492. In light of the evidence presented, it is unreasonable that Georgia Power would have anticipated that someone, in the ordinary and usual course of working on its transformer, either lawfully or negligently, would have been involuntarily lifted several feet above the transformer in an allegedly defective bucket truck. “ ‘ “ ‘A prior and remote cause can not be made the basis of an action if such remote cause did nothing more than furnish the condition, or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, efficient cause of the injury. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause.’ [Cit.]” ’ [Cit.]” Wanless v. Winner’s Corp., 177 Ga. App. 783, 785 (3) (341 SE2d 250) (1986). We find, therefore, that the alleged improper mounting of the transformer was not the proximate cause of appellant’s injury. “The conduct of [Georgia Power] could have done nothing more than give rise to the occasion which made [appellant’s] injuries possible. Other circumstances preponderated in causing [appellant’s] injuries.” Id. Specifically, the evidence was undisputed that had appellant been wearing insulated gloves or had the wires been properly covered, his injury would not have occurred. This court has adhered to the rule that only where the evidence is plain and palpable will “negligence, contributory negligence or the exercise of ordinary care for one’s own safety” be decided by the court as a matter of law, Fort v. Boone, 166 Ga. App. 290, 292 (304 SE2d 465) (1983), and such is the legal situation in this case. Accordingly, the trial court did not err in granting summary judgment to Georgia Power. See Mathews v. Ga. Power Co., 175 Ga. App. 441 (333 SE2d 631) (1985); Jones v. Central of Ga. R. Co., 192 Ga. App. 806 (386 SE2d 386) (1989).

Case No. A90A1599

In its cross-appeal, Reach All enumerates as error the denial of its motion for summary judgment, charging that the admissible evidence demonstrates that the bucket truck did not malfunction. Relying on the testimony of Beamon’s co-worker, Montfort, his own testimony and his own conclusions of the cause of the accident given the distance between the transformer and the wires, cross-appellee Bea-mon proposed that the bucket either rose on its own, indicating defectiveness, or the uncovered controls were inadvertently bumped causing the bucket to rise. A review of the testimony reveals that there had been no reports of mechanical problems or unexpected movement of the truck or the bucket prior to the accident; that Bea-mon and Montfort were the only two persons in the bucket; that Montfort had turned away from Beamon at the time to reach for his safety gloves; that Beamon has no recollection of any of the events after attaching the hook to the collar rope; and that neither Beamon nor Montfort were in the vicinity of the controls or inadvertently activated them. Montfort stated that the bucket did not move and that he would have felt the movement had it occurred. Beamon does not recall the bucket moving and admits he does not know what caused the bucket to rise, nevertheless, he insists that it did move based upon the height of the wires relative to the transformer and the bucket.

Decided March 13, 1991

Rehearing denied March 27, 1991

Kelly, Denney, Pease & Allison, Paul R. Bennett, Billy E. Moore, for Beamon.

Hatcher, Stubbs, Land, Hollis & Rothschild, Richard Y. Bradley, Clay D. Land, for Georgia Power. Hurt, Richardson, Garner, Todd & Cadenhead, Frederick N. Gleaton, Judith I. Harris, for Reach All.

“Mere conclusions are not sufficient to withstand specific facts. ‘A party opposing a motion for summary judgment, where the moving party has presented evidence of the necessary certitude, must, in his opposing affidavits, set forth specific facts showing a genuine issue to be decided by a jury.’ [Cits.]” West Side Loan Office v. Electro-Protective Corp., 167 Ga. App. 520 (306 SE2d 686) (1983). Beamon submitted affidavits from experts who alleged that the bucket truck was designed in violation of national standards because the controls faced the bucket’s interior and were susceptible to inadvertent activation because they were not covered; however, there was no evidence that the controls were touched. In our view, Beamon failed to set forth specific facts supporting his contention that the bucket truck malfunctioned or was defective, and giving Beamon the benefit of all inferences, there are no genuine issues of material fact. Where a “defendant, as movant for summary judgment, produces evidence conclusively establishing a fact or facts which negate one or more essential elements of plaintiff’s action, . . . the movant is entitled to a summary judgment as a matter of law. [Cit.]” Calhoun v. Eaves, 114 Ga. App. 756, 759 (152 SE2d 805) (1966). This, Reach All has succeeded in doing, and the trial court erred in denying Reach All’s motion for summary judgment.

Having concluded that the court erred in failing to grant summary judgment, to Reach All, we need not consider Reach All’s contention that the trial court erred in failing to conclude that Beamon’s failure to exercise ordinary care for his own safety constituted assumption of the risk.

Judgment affirmed in Case No. A90A1598.

Judgment reversed in Case No. A90A1599. Banke, P. J., and Birdsong, P. J., concur.


author: Banke, Presiding Judge.

text:
    A90A1612.
    CALLAWAY et al. v. RYCKELEY et al.
    (404 SE2d 650)
   Banke, Presiding Judge.

The appellants sued John Ryckeley and two business entities of which he is a principal, seeking actual and punitive damages for their alleged conduct in destroying a portion of a cemetery containing the remains of the appellants’ ancestors during the course of a subdivision development project. This appeal is from an order granting partial summary judgment to these defendants with respect to the appellants’ prayers for punitive damages and damages for emotional distress.

Ryckeley purchased the tract of land in question in June of 1987 and was informed of the presence of the cemetery on the property before the development work began. The cemetery was located by a team of surveyors retained by Ryckeley to lay out the subdivision; and pursuant to his instructions, its boundaries were marked with a continuous strand of surveyor’s ribbon.

The head of the construction company which had performed the rough grading work for a subdivision road running adjacent to the cemetery averred that he had been notified of the cemetery’s existence and advised of the necessity of avoiding it. However, an archaeological firm retained by the appellants, determined that a portion of the cemetery had been graded over. The archaeologist was of the opinion that “the graves in the area could have been identified quickly and economically had someone with appropriate expertise been retained to investigate the area prior to construction.” Also, appellant McKowen testified that she had visited the cemetery before the area was graded, that she had observed the surveyor’s ribbon properly marking its perimeter, that she had observed in the center of that defined area the presence of a large cedar tree next to one of the graves, and that upon returning to the site afterwards she had observed that approximately half of the area in question had been graded over, resulting in the destruction of the cedar tree and two headstones. Held:

1. The appellants have alleged no physical injury or pecuniary loss but seek damages solely for their emotional distress. The present cause of action accrued in April of 1988 and is accordingly governed by the provisions of the Tort Reform Act of 1987 (Ga. L. 1987, p. 915 et seq.). That Act amended OCGA § 51-12-6 to make it read as follows: “In a tort action in which the entire injury is to the peace, happiness, or feelings of the plaintiff, no measure of damages can be prescribed except the enlightened consciences of impartial jurors. In such an action, punitive damages under . . . Code Section 51-12-5.1 shall not be awarded.” See also Mallard v. Jenkins, 186 Ga. App. 167 (1) (366 SE2d 775) (1988). It follows that the trial court did not err in granting summary judgment to the appellees on the appellants’ claim for punitive damages.

Decided March 15, 1991

Rehearing denied March 27, 1991

Bischoff & White, Dorothy D. Wilcox, for appellants.

McNally, Fox, Mahler, Cameron & Stephens, R. Mark Mahler, Lokey & Bowden, Malcolm Smith, K. Scott Graham, Beck, Owen & Murray, Richard L. Collier, Frederick A. Johnson, for appellees.

2. “ ‘As a general precept, damages for mental distress are not recoverable in the absence of physical injury where the claim is premised upon ordinary negligence. (Cit.) However, when the claim is for intentional misconduct, damages for mental distress may be recovered without proof of physical injury. (Cit.)’ Hamilton v. Powell, Goldstein, Frazer & Murphy, 252 Ga. 149, 150 (311 SE2d 818) (1984).” Clark v. West, 196 Ga. App. 456, 457-458 (b) (395 SE2d 884) (1990). “If ‘mental pain and suffering’ is not accompanied by physical injury or pecuniary loss, recovery is allowed only if the conduct complained of was ‘malicious, wilful, or wanton.’ [Cit.]” Westview Cemetery v. Blanchard, 234 Ga. 540, 544 (216 SE2d 776) (1975). In this regard, “reckless and wanton disregard of consequences” is considered the equivalent of intentional misconduct. Hamilton, supra, 252 Ga. at 150. See also Cassidy v. Wilson, 196 Ga. App. 6, 8 (395 SE2d 291) (1990); Radford v. Mayor &c. of Savannah, 194 Ga. App. 839, 840 (2) (392 SE2d 23) (1990).

While the evidence of record in the present case establishes that the appellees made a successful effort to locate the cemetery, we conclude that a material factual dispute remains as to whether, having done so, they nevertheless graded through the cemetery with conscious or reckless disregard for the appellants’ rights. Accordingly, we hold that the trial court erred in granting summary judgment to the appellees with respect to the appellants’ claim for actual damages under OCGA § 51-12-6.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Cooper, J., concur.


text:
    A90A2144.
    STOTTS v. THE STATE.
    (404 SE2d 635)
   Cooper, Judge.

Appellant was convicted by a jury of trafficking in cocaine. He appeals from the denial of his motion for new trial and enumerates as error the denial of his motion to suppress.

The arresting officer testified that while on patrol in his car, he observed a car travelling on the expressway at a speed of approximately 90 m.p.h. in an area where the speed limit was 55 m.p.h. The officer got behind the car and turned his blue lights on but the car did not stop until the officer turned on his siren. The driver of the car first presented an invalid license to the officer and then gave the officer a license which belonged to appellant, who was in the passenger seat of the car. The driver had an odor of alcohol on his breath and body, was unsteady on his feet and failed a field sobriety test. The driver was arrested for driving under the influence and was placed in the back of the officer’s patrol car. The officer approached appellant to ask him why he had given the driver his license and to determine whether he could drive the car. The officer detected an odor of alcohol on appellant’s breath and saw a cup of liquid which smelled like an alcoholic beverage next to appellant in the car. The officer therefore determined that appellant was unable to drive the car and since he could not be left on the expressway, he patted down appellant to check for weapons before placing appellant in the back of the patrol car. While he was patting down appellant, the officer discovered a large bulge under appellant’s right arm and found a bag containing money. The officer also testified that he felt a knife-like object in appellant’s right pocket so he reached into the pocket and when he pulled out the knife, a clear plastic bag containing a white powder came out of the pocket with the knife. A third passenger was asleep in the back seat of the car, and after waking him, the officer determined that he was also too intoxicated to drive the car, therefore, he was patted down and placed in the back of the patrol car with appellant and the driver. Since no one was able to drive the car, an inventory search was conducted before the car was impounded by the arresting officer and another officer who had arrived on the scene.

During a search of the trunk of the car, a portable radio fell apart when it was picked up, revealing a large plastic bag containing white powder. It was subsequently ascertained that the white powder in both the large plastic bag and the bag in appellant’s pocket was cocaine; that the car had been rented by a person by the name of Anderson West; and that appellant was listed as an additional driver on the rental agreement.

1. Appellant contends in his first enumeration of error that the motion to suppress should have been granted because the impoundment of the car was improper. We disagree. Each of the persons in the vehicle appeared to the officer to be intoxicated, and we conclude that the impoundment of the car was valid inasmuch as no one present was capable of safely removing the vehicle. See South Dakota v. Opperman, 428 U. S. 364 (96 SC 3092, 49 LE2d 1000) (1976). Compare Whisnant v. State, 185 Ga. App. 51 (2) (363 SE2d 341) (1987); State v. King, 191 Ga. App. 706 (382 SE2d 613) (1989). Further, the search of the car which revealed the additional cocaine was contemporaneous with appellant’s lawful arrest. See New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981); United States v. Ross, 456 U. S. 798 (102 SC 2157, 72 LE2d 572) (1982).

Decided March 12, 1991

Rehearing denied March 27, 1991

James Brantley, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Charles W. Smegal, Assistant District Attorneys, for appellee.

2. Appellant also contends that the trial court erred in failing to suppress the drugs found on appellant during the officer’s pat-down search. Appellant argues that since the pat-down search was for the purpose of discovering any weapons on appellant’s person, the failure to produce the knife which the officer allegedly felt requires that the illegal drugs found in connection with that intrusion be suppressed. The arresting officer was authorized to conduct a limited Terry search for weapons before placing appellant in the patrol car. When the officer felt a bulge which he thought might be a knife, he was allowed to intrude further to determine if the object was in fact a weapon. Roberts v. State, 193 Ga. App. 96, 98 (386 SE2d 921) (1989). The officer testified that when he pulled the knife out, the illegal drugs came out with it. The failure to produce the knife at the suppression hearing presented a question of credibility for the trial judge. “ ‘On appeal from the denial of a motion to suppress evidence obtained through a search that the defendant contends was illegal, “the trial court’s decision on questions of fact and credibility . . . must be accepted unless clearly erroneous.” ’ [Cit.]” O’Keefe v. State, 189 Ga. App. 519, 522 (1) (376 SE2d 406) (1988). We do not find that the trial court’s ruling was clearly erroneous.

Judgment affirmed.

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


text:
    A90A2194.
    HUNTER v. ROBERTS.
    (404 SE2d 645)
   Pope, Judge.

Plaintiff/appellant Isaiah Hunter III d/b/a Hunter Grading Contractors, Inc. (“plaintiff”) brought suit for breach of contract against defendant/appellee Terry Roberts d/b/a T. S. Roberts & Son, Inc./ Drilling Services (“defendant”). Plaintiff held a subcontract from The Columbus Company to perform certain work in connection with building a runway at the Gwinnett County Airport. Plaintiff in turn subcontracted the blasting work on the contract to defendant. Defendant ceased work on the project shortly after it began. The trial court granted summary judgment to defendant apparently on the basis of a release signed by an employee of plaintiff.

1. Defendant moves this court to dismiss the appeal on the ground that it is untimely. The record shows the order granting summary judgment from which this appeal is taken is dated June 19, 1990, and the notice of appeal was filed July 6, 1990. However, defendant argues this was the second order entering summary judgment on the same issues and is therefore a nullity. The order to which defendant refers was not included in the record on appeal. However, we can take judicial notice of the record filed in the application for interlocutory appeal previously filed in this case in our court. See Petkas v. Grizzard, 252 Ga. 104 (312 SE2d 107) (1984). It is apparent that the earlier order, dated January 25, 1990, was not a final order subject to direct appeal. The order reads in pertinent part: “The Court finds that there are no genuine issues to be tried with respect to any material facts and that the only remaining question is one of law.” (Emphasis supplied.) The order clearly reserved ruling on questions of law. The order then cites OCGA § 5-6-34 (b) as the mechanism for appeal, but no certificate of review was entered within the time allowed by the Code section and the time for appeal pursuant to that statute is not one that can be extended. OCGA § 5-6-39. Therefore, the order was, for all practical purposes, a nullity. Defendant’s motion to dismiss the appeal is denied.

2. Our review of the record shows that questions of material fact remain and summary judgment was not appropriate. The basis for defendant’s motion for summary judgment was the release signed by Clyde Brannen, an employee of plaintiff. The release was handwritten, undated and read in its entirety: “As of 1-16-87 Drilling Services div [sic] of T. S. Roberts & Sons, Inc. is released from contract dated Nov_to do drilling & blasting on Gwinnett Co Airport box culvert.” It was signed “Clyde D. Brannen/Vice Pres. Hunter Grading.”

Plaintiff adduced the affidavit of Isaiah Hunter to the effect that Clyde Brannen was not a vice president of Hunter Grading Contractors, Inc., and that he had no authority to enter contracts or release others from contracts on behalf of the plaintiff. Hunter further averred that he had never introduced Brannen as a vice president of the company during the Gwinnett County Airport project. Affidavits also are in the record from two former employees of Hunter to the effect that Brannen was not a vice president during the time they were employed by Hunter as office managers, and did not have authority to bind the corporation. In his affidavit, Brannen averred he was never a vice president of Hunter Grading, but rather worked as field superintendent, and that he signed the release only after defendant harassed him on the job site.

Defendant relied upon the release as written and signed by Bran-nen as vice president. Also, defendant produced the affidavit of Richard Patterson, who was president of Controlled Blasting, the company hired by Brannen to complete the work defendant had contracted to do. Patterson averred that he was led to believe Brannen was vice president of Hunter Grading with authority to enter contracts on behalf of the company. Attached to Patterson’s affidavit as an exhibit was the contract between Patterson’s company and Hunter Grading signed by Brannen with the notation of “V.P.” next to his signature. Defendant Terry Roberts averred that Isaiah Hunter introduced Brannen to him as vice president of Hunter Grading and told him to deal with Brannen on the project and that Brannen had full authority to administer the project.

“ ‘Questions of the existence and extent of an agent’s authority are generally for the triers of fact.’ [Cit.]” Allen & Bean v. American &c. Ins. Co., 153 Ga. App. 617, 619 (266 SE2d 295) (1980). Given the conflicts in the record regarding Brannen’s authority, a genuine issue of fact exists regarding his authority to bind plaintiff by the release he signed.

Questions also remain whether plaintiff ratified the actions of Brannen. In his affidavit, Hunter avers he specifically rejected the release signed by Brannen and any further payment by his company to defendant. Hunter avers he did not ratify Brannen’s actions in hiring Controlled Blasting to complete the work begun by defendant. Of course, defendant points to the hiring of Controlled Blasting by Bran-nen, in which he signed the contract with the notation “V.P.,” and the payment received by defendant after he received the release for work previously done, as evidence of ratification. “Whether or not the facts and circumstances of the particular case show a ratification of the acts of one alleged to have been acting for the . . . principal, is ordinarily a question for the jury. [Cit.]” Burke County Bd. of Education v. Raley, 104 Ga. App. 717, 721 (1) (123 SE2d 272) (1961).

Judgment reversed.

Beasley and Andrews, JJ., concur.

Decided March 14, 1991

Rehearing denied March 27, 1991.

Wood & Meredith, Hugh C. Wood, Dwight A. Meredith, for appellant.

Palmer, Howard & Clark, Glen W. Clark, Jr., for appellee.


author: Carley, Judge.

text:
    A90A2199.
    REESE v. SOUTHERN RAILWAY COMPANY et al.
    (404 SE2d 643)
   Carley, Judge.

Appellant-plaintiff brought suit, seeking to recover for injuries that he suffered while engaged in his employment with Georgia Power Company. Appellee-defendants answered and, after extensive discovery, they moved for summary judgment. The trial court granted summary judgment in appellees’ favor and appellant appeals.

1. Appellant was injured when he tripped on a purported defect in the surface of a coal “dumper table” and his foot slipped into a gap between the edge of the “dumper table” and the adjacent stationary railway bed. Although the “dumper table,” the rail line and the property upon which they are located are all wholly owned by Georgia Power Company, appellant urges that a genuine issue of material fact nevertheless remains as to appellees’ liability under the theory that they negligently failed to repair the surface of the “dumper table” and the gap between the “dumper table” and the railway bed.

Construing the evidence most favorably for appellant, the defect on the surface of the “dumper table” upon which he originally tripped was caused by the prior derailment of coal cars thereon. There is evidence that, in connection with prior derailments on the “dumper table,” Georgia Power Company had engaged appellees to perform rerailing and track repair services. However, the evidence that appellees were never engaged by Georgia Power Company to repair any derailment damage done to the surface of the “dumper table” itself is undisputed. Accordingly, no genuine issue of material fact remains as to appellees’ liability for appellant’s injuries under the theory that they negligently performed a contract to repair the surface of Georgia Power Company’s “dumper table.” Compare E. & M. Constr. Co. v. Bob, 115 Ga. App. 127 (153 SE2d 641) (1967).

It is undisputed that the gap between the “dumper table” and the railway bed into which appellant’s foot slipped was not caused by a derailment. Under appellant’s own evidence, the gap was created when Georgia Power Company employees removed a section of track with an acetylene torch so as to facilitate the operation of the “dumper table.” Obviously, a limited contract to perform rerailing and track repair services in connection with the occurrence of a derailment would not encompass any obligation whatsoever with regard to an intentional alteration that was made by Georgia Power Company to its own equipment for its own purposes. Accordingly, no genuine issue of material fact remains as to appellees’ liability for appellant’s injuries under the theory that the gap was the result of their negligent performance of a contract for rerailing and track repair services. See Church v. SMS Enterprises, 186 Ga. App. 791 (368 SE2d 554) (1988).

2. Appellant further urges that, even if appellees are not liable for having failed to make actual repairs to the Georgia Power Company’s equipment which resulted in his injury, a genuine issue of material fact nevertheless remains as to their negligent failure to have inspected the premises so as to discover and recommend to Georgia Power Company that the potentially dangerous condition of its equipment be corrected.

The evidence of record establishes the existence of no contractual duty on the part of appellees to conduct a safety inspection of the Georgia Power Company premises. Other than the agreements to perform rerailing and track repair services in connection with derailments, the only contract was one which obligated appellees merely to deliver coal to Georgia Power Company’s property line and no further. In connection with that coal delivery contract, there was no additional explicit or implicit obligation to enter Georgia Power Company’s premises and inspect its “dumper table” and trackage to discover and warn against the existence of conditions which were potentially dangerous to Georgia Power Company’s employees. Likewise, the evidence of record establishes the assumption of no gratuitous duty on the part of appellees to make a safety inspection of the Georgia Power Company premises.

That there may have been reliance upon appellees’ special skill and technical knowledge in railroad equipment safety is immaterial to their liability if they did not undertake, either gratuitously or for consideration, to avail appellant or Georgia Power Company of those skills and that knowledge. It is only “ ‘[o]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, [who] is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking. . . . [Cits.]”’ Universal Underwriters Ins. Co. v. Smith, 253 Ga. 588, 589 (322 SE2d 269) (1984). Under the evidence of record, neither appellee had a “contractual or other duty to make inspections [of Georgia Power Company’s property or equipment]. . . .” Mimms v. Travelers Ins. Co., 156 Ga. App. 889, 890 (275 SE2d 825) (1981).

Decided March 13, 1991

Rehearing denied March 27, 1991

Davis, Gregory & Christy, Hardy Gregory, Jr., Richard E. Stark, for appellant.

Webb, Kicklighter & Casey, Robert E. Casey, Jr., Matthew D. Williams, Branch, Pike & Ganz, Eileen M. Crowley, Keith J. Reis-man, for appellees.

3. “To prevail on a motion for summary judgment ([cit.]), a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. [Cits.]” Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981). Appellees met this burden and it follows that the trial court correctly granted summary judgment in their favor.

Judgments affirmed.

Sognier, C. J., and McMurray, P. J., concur.