text:
    74988.
    74989.
    MAJEED v. McBRYAR et al. HOSPITAL AUTHORITY OF WALKER, DADE & CATOOSA COUNTIES v. McBRYAR et al.
    (363 SE2d 59)
   Benham, Judge.

Appellees McBryar, husband and wife, filed suit against appellants Dr. Majeed and the Hospital Authority of Walker, Dade, and Catoosa Counties (“hospital authority”), seeking damages for the alleged wrongful death of their infant daughter who was the second of twins delivered by Mrs. McBryar, with Dr. Majeed in attendance, in a hospital operated by appellant hospital authority. The McBryars alleged that the death of their child was attributable to the negligence of Dr. Majeed and hospital employees in the delivery room. Both defendants were denied summary judgment but were granted certificates of immediate review. This court then granted both defendants interlocutory review of the denial of their motions for summary judgment.

1. In support of his motion for summary judgment, Dr. Majeed submitted his affidavit in which he recounted the birth of the Mc-Bryar twins. After the first-born twin was delivered without incident, the doctor allowed “an appropriate lapse of time for spontaneous delivery of the second twin” and then “elected to employ a vacuum extraction method to assist delivery of the second twin.” The vacuum extractor was not in the delivery room, but in an adjacent room, and was brought to Dr. Majeed “within a very reasonable time . . .” The child “was delivered with good heartbeat but with poor respiration and muscle tone.” She was resuscitated and transferred to the neonatal care unit of another hospital.

The doctor swore that “[t]he time lapse between delivery of the first twin and delivery of the second twin was not an inordinate amount of time. There was no premature separation of the placenta, and there was no prolapse of the umbilical cord in connection with delivery of the second twin.” The doctor opined that he had “exercised at least that degree of skill, care and diligence as would ordinarily be employed by members of the medical profession generally under the same or similar circumstance,” and that “nothing that transpired or occurred during or in connection with the delivery of the twin infants . . . proximately caused or contributed to any condition resulting in the death of the second born twin. ...”

In opposition to the doctor’s motion for summary judgment, appellees submitted their affidavits as well as that of a Florida physician. Since the case at bar is a medical malpractice action in which the defendant doctor has sworn he was not negligent, the submission of the affidavits of plaintiffs/appellees, non-experts, was not sufficient to prevent the grant of summary judgment to appellant/doctor. See Howard v. Walker, 242 Ga. 406 (249 SE2d 45) (1978). Appellees were required to produce the testimony of an expert in order to be entitled to have the case considered by a jury. Id. “In a medical malpractice case, a defendant-doctor’s affidavit stating his expert opinion that his care of the patient met the appropriate standard of care establishes the defendant’s right to summary judgment unless the plaintiff counters with a contrary opinion by an expert. [Cits.] That expert opinion in opposition to the defendant’s motion for summary judgment must establish ‘the parameters of acceptable professional conduct, a significant deviation from which would constitute malpractice.’ [Cit.]” Beauchamp v. Wallace, 180 Ga. App. 554 (349 SE2d 791) (1986). “[T]he plaintiff cannot prevail on motion for summary judgment by merely presenting a conclusory opinion that defendant was negligent or failed to adhere to the professional standard. [Cit.] [The plaintiff] must state the particulars. [The plaintiff] must establish the parameters of the acceptable professional conduct and set forth how or in what way the defendant deviated therefrom. [Cits.] ... To stay in court the plaintiff [must] come forward with specifics.” Loving v. Nash, 182 Ga. App. 253, 255 (355 SE2d 448) (1987).

In the case at bar, the affidavit of the Florida physician submitted by appellees in opposition to Dr. Majeed’s motion stated the doctor’s qualifications as an expert and the fact that he had reviewed the medical records. He then opined that “[n]ormally, the length of time shown in this case between the birth of the first and second child would be reasonable. However, assuming that a significant premature separation or shearing off of the placenta and fetal distress occurred after the birth of the first child, it is imperative for the second child to be delivered with all due speed and time was of the essence. It is my opinion that the cause of death of the child and her serious health problems after delivery were consistent with a significant premature separation of the placenta and fetal distress.”

While the affidavit of appellee’s expert may be read as establishing the parameters of acceptable professional conduct (it is imperative to deliver the second child with all due speed upon premature separation of the placenta and fetal distress), it failed to set forth how appellant Majeed deviated therefrom. The affidavit does not even contain an opinion that Majeed was negligent. The affidavit was “not sufficient to carry the burden required of a plaintiff when a defendant has made a prima facie showing of entitlement to judgment. [Cits.]” Beauchamp v. Wallace, supra. See also Loving v. Nash, supra; Bushey v. Atlanta Emergency Group, 179 Ga. App. 827 (348 SE2d 98) (1986). We leave for another day resolution of the issue whether the affidavit of appellee’s expert was subject to the criticism that it assumed a fact not in evidence when the fact allegedly assumed was potentially admissible, since it was contained in a prior inconsistent statement purportedly made by Dr. Majeed to Mrs. McBryar, who recounted it in her affidavit. See Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982); Cooperwood v. Auld, 175 Ga. App. 694 (334 SE2d 22) (1985). Summary judgment in favor of Dr. Majeed should have been granted.

2. In support of its motion for summary judgment, appellant hospital authority relied upon the affidavits of its administrator; its vice-president of nursing services; and Dr. Majeed. After reviewing the medical records, both the nursing vice-president and the hospital administrator were of the opinion that the nurses and other hospital employees exercised that degree of care and skill exercised by members of their profession generally and were not negligent in any particular as alleged by appellees, and that the hospital had exercised that degree of care and skill exercised by hospitals generally in northwest Georgia. In his affidavit, Dr. Majeed stated that the vacuum extractor provided by the hospital to assist in delivery of the second twin was the appropriate and correct type of instrument; that there was nothing improper, incorrect, or inappropriate about the vacuum extractor equipment; that the vacuum extractor was brought to the delivery room within a very reasonable time; that there was no unusual or undue delay in making available the vacuum extractor; and that the brief amount of time required to get the vacuum extractor did not, in any way, adversely affect the progress of delivery of the second twin. The doctor opined that “nothing that transpired or occurred during or in connection with the delivery of the twin infants . . . contributed to any condition resulting in the death of the second born twin. . . .”

In response to the hospital authority’s motion for summary judgment, appellees again relied upon their affidavits and that of their expert, the Florida physician. Both appellees were present in the delivery room and both recounted in their affidavits the fact that the vacuum extractor was obtained from a place outside the delivery room. Mr. McBryar recalled a remark made to him by an unnamed nurse who had participated in the delivery of the twins: “She then informed me that if the hospital had had the equipment in the delivery room my daughter’s serious condition would never have happened.” In a deposition, Mr. McBryar recalled that a nurse at the hospital tp which the second twin was transferred told him, “It should never have happened, there was no reason there for it.”

Decided November 6, 1987.

William E. Davidson, Jr., for appellant (case no. 74988).

L. Hugh Kemp, Cynthia K. Johnson, for appellant (case no. 74989).

Christopher A. Townley, for appellees.

Appellees did not present evidence to rebut appellants’ expert testimony that the hospital authority employees had exercised the degree of skill and care exercised by members of their profession generally, and that the hospital had exercised that degree of skill and care exercised by hospitals generally in northwest Georgia. The affidavit of appellee’s expert did not contain facts that would qualify him as an expert concerning the skill and care that must be shown by a hospital in northwest Georgia (see Craft v. Hosp. Auth. of Hall County, 173 Ga. App. 444 (326 SE2d 590) (1985)), and the affidavits executed by appellees contained only hearsay to rebut the affidavits submitted by the hospital authority. Even assuming but not determining that this evidence was admissible under the res gestae exception as permitted by this court in Stouffer Corp. v. Henkel, 170 Ga. App. 383 (1) (317 SE2d 222) (1984), it still would not have been sufficient to withstand the hospital authority’s motion for summary judgment.

Judgments reversed.

Banke, P. J., concurs in Division 2 and in the judgment. Carley, J., concurs in Division 1 and in the judgment.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    74930, 74931.
    THEATRE OF THE STARS, INC. v. ATLANTA WOMAN’S CLUB; and vice versa.
    (363 SE2d 6)
   Banke, Presiding Judge.

In 1973, the parties entered into a written agreement whereby Theatre of the Stars, Inc. (“TOTS”) leased a theater (now known as the Peachtree Playhouse), as well as an adjacent banquet room (referred to as Wesley Hall), from the Atlanta Woman’s Club. The 1973 agreement was for an initial term of one year but was renewable annually for five years at the same rental rate, which renewal options TOTS exercised through December of 1978. At the expiration of that term, the parties executed a new lease agreement (hereinafter referred to as “the 1979 agreement”) for a term ending on June 30, 1984, at a rental rate which was to increase annually based on a specified formula tied to the consumer price index.

The 1979 agreement contained a provision giving TOTS the right of first refusal for the rental of a second adjacent ballroom. It also contained a provision giving TOTS the option, upon the satisfaction of certain specified conditions, to remain on the premises for an additional five-year period commencing July 1, 1984. The actual language of this option clause, the construction of which is the subject of the present litigation, was as follows: “During the first six months of 1984, landlord and tenant shall renegotiate the rental of the premises for the five-year period commencing July 1, 1984[,] and in the event that landlord and tenant cannot agree upon the terms of such rental, tenant shall have the right to let the premises from landlord at any annual rental offered to landlord, as a bona fide offer from a third party not affiliated with or related to either landlord or tenant and accepted by landlord; landlord shall offer the premises to tenant upon receipt of any such offer upon the terms contained therein, and, if tenant has not accepted such offer within ten days of the receipt thereof by tenant, landlord may let the premises to such third party upon the terms so offered to tenant. In the event that no such offer is made to landlord during the first six (6) months of calendar year 1984, then the rental for the five-year term commencing July 1, 1984, shall be upon the herein contained terms, except that the monthly rental shall be the same as that in effect for the first six (6) months of 1984.”

Efforts to renegotiate the lease began in early 1984, with TOTS being represented during the negotiations by one Chris Manos. At a meeting between Manos and representatives of the Woman’s Club held on March 9th, the Woman’s Club requested that the annual rental be increased to $36,000 and, in addition, that TOTS pay the cost of heating the building (estimated at $10,000 annually). These terms, the substance of which are not disputed, were confirmed and accepted by Manos on behalf of TOTS in a letter dated April 24, 1984. The Woman’s Club responded the following day by acknowledging in writing TOTS’ intention to invoke the renewal provision but stating that “any decision to renew, at this stage, is premature.” TOTS’ attorney thereupon sent a letter to the Woman’s Club informing it that TOTS took exception to its position that an extension was premature and maintaining that the parties had in fact already reached a new agreement to extend the lease at a base annual rental rate of $36,000.

TOTS’ agreement to the demands previously set forth by the Woman’s Club was specifically acknowledged by the Woman’s Club in a subsequent letter dated May 31. However, the Woman’s Club went on to inform TOTS in this letter that since TOTS had not submitted a “formal contract” embodying the understanding previously reached by the parties, the Woman’s Club was “going to close out negotiations and look for other prospective tenants.”

On the following day, June 1, 1984, the Ruth Mitchell Dance Company presented an offer to the Woman’s Club to lease the theater. The premises which were the subject of this proposed offer varied from those which were the subject of the 1979 lease agreement between the Woman’s Club and TOTS in two respects: (1) The offer pertained only to a one-third portion of the Wesley Hall banquet room in addition to the theater itself, and (2) it did not include a right of first refusal with respect to the second ballroom. The proposed rental offered by Ruth Mitchell was identical to that offered by TOTS for the first 18 months; however, the amount offered by Ruth Mitchell for the subsequent three and a half years amounted to several thousand dollars more than the $36,000 per year offered by TOTS. As required by the option clause contained in the 1979 agreement, the Woman’s Club forwarded the Ruth Mitchell offer to TOTS, advising that the offer had been approved for acceptance and offering TOTS continued possession of the premises, as described in the Ruth Mitchell offer, “upon the same terms that are contained in [that] offer.”

On June 8, 1984, TOTS sent a letter to the Woman’s Club in which it again indicated its willingness both to pay rent at the rate of $36,000 per year and to pay the estimated annual $10,000 cost of heating the premises. The Woman’s Club rejected this offer and advised TOTS that its lease would terminate on June 30, 1984. Thereafter, the Woman’s Club instituted a dispossessory proceeding against TOTS, which responded by filing the present action, seeking a declaratory judgment stating that the attempted termination of the 1979 lease agreement was ineffective and granting it the right to continued possession of the leased premises at the same monthly rental rate applicable during the first six months of 1984.

The dispossessory proceeding was apparently stayed pending resolution of the declaratory judgment action, which proceeded to a non-jury trial. After hearing the evidence, the trial court entered an order declaring (1) that TOTS had the right to occupy the premises until July 1, 1989, with no further right of renewal; (2) that because the Ruth Mitchell offer was not an offer to lease the same spatial premises as were the subject of the 1979 lease, TOTS was not required to match it in order to exercise its option to remain on the premises; and (3) that TOTS was nevertheless obligated to pay rent during the renewal period at the same rate as Ruth Mitchell had offered for the lesser portion of the premises to which its offer had applied. TOTS filed an appeal from this order, and the Woman’s Club filed a cross-appeal. Held:

1. TOTS contends that the trial court erred in ruling that the amount of rent which it was obligated to pay during the renewal period was the amount offered by Ruth Mitchell rather than the amount which it (TOTS) had been paying during the first six months of 1984, asserting that this ruling was inconsistent with the trial court’s simultaneous determination that TOTS was not required to match the Ruth Mitchell offer because that offer had not pertained to the identical “premises” encompassed by TOTS’ existing lease. The Woman’s Club, on the other hand, contends in its cross-appeal that it was the latter portion of the trial court’s reasoning which was erroneous.

We must agree with the Woman’s Club that TOTS was not relieved of the obligation of matching the dollar amount of the Ruth Mitchell offer merely because that offer encompassed a lesser portion of the premises than did TOTS’ existing lease. Clearly, if Ruth Mitchell was willing to pay more rent for less space, then TOTS was obligated to pay at least that same amount of rent for the larger portion of the building to which its option applied. It follows that if the Ruth Mitchell offer constituted “a bona fide offer from a third party” within the contemplation of the option clause contained in the 1979 agreement, then TOTS’ failure to match the dollar amount of that offer within 10 days of being notified of it resulted in a forfeiture of its rights under the option clause. However, the court did not reach the issue of whether the Ruth Mitchell offer was “bona fide,” due to its determination that the offer could not be effective unless it was for the same spatial premises as were the subject of TOTS’ lease. We therefore remand the case for a resolution of this issue. If it is determined by the trial court that the Ruth Mitchell offer was not “a bona fide offer from a third party,” then TOTS would be entitled to occupy the entire “premises,” as that term is defined in the 1979 agreement, for a period of five years, commencing July 1, 1984, at the monthly rental that was in effect during the first six months of 1984. If, on the other hand, the trial court determines that the Ruth Mitchell offer was “bona fide,” then TOTS’ right to possession of the premises must be deemed as a matter of law to have terminated on June 30, 1984, due to its failure to respond to the offer within the 10-day period specified in the contract.

2. TOTS further assigns as error the trial court’s ruling that its option to continue renting the premises could in no event extend beyond June 30, 1989. In this regard, TOTS contends that because one of the terms of the existing lease was the renewal option itself and because that option provided for the renewal of the lease “upon the terms contained herein,” the option in effect authorized the renewal of the lease every five years in perpetuity. In ruling to the contrary, the trial court ascertained from the written instrument, as amplified by parol evidence, that it had been the parties’ intention that TOTS would have the right only to one five-year renewal of the lease. Although TOTS’ negotiator, Chris Manos, testified that it was his understanding that the option provision was itself to be renewable so long as TOTS was willing to match any offer by a third party, this testimony was in conflict with other testimony presented by the Woman’s Club, evincing its intention to establish only one five-year right of renewal.

Factual determinations made by the trial court upon the trial of a civil case without a jury will not be disturbed unless “clearly erroneous,” a standard which is identical to the “any evidence” standard. Allen v. Cobb Heating &c. Co., 158 Ga. App. 209, 210 (279 SE2d 505) (1981). Since the trial court’s finding with respect to the meaning of the contractual provision in question is supported by some evidence, it will not be disturbed on appeal.

3. TOTS asserts as error the trial court’s refusal to admit into evidence a writing purportedly prepared by Manos for the purpose of assisting TOTS’ attorney in drafting the 1979 agreement and purportedly evincing TOTS’ intent with respect to the meaning of the written renewal provision. This exhibit was objected to by the Woman’s Club on the grounds that it was not dated and had not been produced in response to pre-trial discovery requests. Although the trial court refused to admit the evidence, it allowed Manos wide latitude in testifying as to his understanding of the option provision and his intent in negotiating the 1979 lease.

As the evidence in question was considered by the court via Ma-nos’ testimony, we find no cause for reversal resulting from exclusion of the writing. “It is for the reviewing court to determine whether prejudice has resulted; and if such exclusion did not prejudice the complaining party, and could not have affected the result, [any] error is harmless. [Cit.]” Howard v. St. Paul Fire &c. Ins. Co., 180 Ga. App. 802, 805 (350 SE2d 776) (1986).

4. Similarily, the trial court’s refusal to admit Ruth Mitchell’s federal income tax returns as evidence of its alleged financial inability to meet the proposed obligations created by its lease offer cannot be considered reversible error, inasmuch as evidence of Mitchell’s financial resources was already before the court in the form of certain financial statements introduced for the same purpose. See Howard, supra. Absent a showing by the appellant that the tax returns contained any relevant information not contained in the financial statements, we must assume that no prejudice resulted from the court’s ruling in this regard. It is, of course, axiomatic that harm as well as error must be shown to secure a reversal. See, e.g., Clements v. Toombs County Hosp. Auth., 175 Ga. App. 651, 653-654 (334 SE2d 188) (1985).

Decided October 5, 1987

Rehearing denied November 9, 1987

R. Matthew Martin, for appellant.

H. Lowell Hopkins, Patrick J. McKenna, for appellee.

5. The trial court’s finding that the Woman’s Club attempted in good faith to negotiate a new lease with TOTS prior to entertaining the Ruth Mitchell offer was authorized by the evidence and was not “clearly erroneous.” Allen v. Cobb Heating &c. Co., supra.

Judgment affirmed in part and vacated in part, and case remanded with direction.

Carley and Benham, JJ., concur.


text:
    75180.
    CONSOLIDATED GOVERNMENT OF MUSCOGEE COUNTY AND/OR COLUMBUS v. WILLIAMS.
    (363 SE2d 20)
   Banke, Presiding Judge.

The appellee, Williams, sued the appellant (originally identified in the complaint as the “Consolidated Government of Muscogee County, Georgia”) to recover for personal injuries he had allegedly sustained as the result of an “unsafe and unreasonably dangerous condition” existing at the intersection of two public roadways which the appellant was allegedly responsible for maintaining. An answer was filed by the “Consolidated Government of Columbus, Georgia,” denying that the intersection was unsafe. Additionally, a motion to dismiss the action was filed, asserting that a “nonexistent political entity” had been named as defendant and that the complaint, in any event, failed to state a claim on which relief could be granted.

In response to the motion to dismiss, Williams filed an amended complaint in which he identified the defendant as the “Consolidated Government of Muscogee, County, Georgia and/or Columbus, Georgia.” In addition, Williams amplified the factual and legal allegations on which his claim was based. The trial court subsequently denied the motion to dismiss. We then granted the city’s application for an interlocutory appeal to examine its contention that the factual allegations set forth in the compliant were insufficient as a matter of law to establish an actionable breach of duty on its part. Held:

1. Initially, the city contends that Williams was not entitled to substitute a new defendant by amendment without first obtaining leave of court. However, it is abundantly clear that the amendment did not in fact name a new defendant but merely corrected a misnomer. Indeed, at one point in its brief on appeal, the appellant refers to itself as “Columbus, Georgia or Muscogee County.”

“Where the real defendant has been properly served, a plaintiff has the right to amend in order to correct a misnomer in the description of the defendant contained in the complaint. [Cits.] Correction of a misnomer involves no substitution of parties and does not add a new and distinct party. [Cit.]” Atlanta Veterans Transp. v. Westmoreland, 123 Ga. App. 466 (181 SE2d 504) (1971). Accord Block v. Voyager Life Ins. Co., 251 Ga. 162 (1) (303 SE2d 742) (1983). This enumeration of error is consequently without merit.

2. The appellant contends that the complaint was additionally defective in that it asserted grounds for recovery not asserted in Williams’ ante litem notice. However, it does not appear that a copy of the ante litem notice was attached to Williams’ complaint. Consequently, the trial court could not have addressed this issue without considering matters outside the pleadings and thereby converting the motion to dismiss into a motion for summary judgment. See generally OCGA § 9-11-12 (b). There being no indication in the record that the trial court did so, this enumeration of error presents nothing for review.

3. A complaint may not be dismissed pursuant to OCGA § 9-11-12 (b) (6) for failure to state a claim upon which relief may be granted “unless it can be said that under no conceivable state of facts which the plaintiff might prove under the allegations of the complaint would he be entitled to any relief. [Cits.]” Sixth Street Corp. v. City Stores Co., 229 Ga. 99, 100 (189 SE2d 407) (1972).

Williams alleged in his amended complaint that his injuries had resulted from the city’s failure to correct an “unsafe and unreasonably dangerous condition” existing at the intersection, of which it had actual or constructive knowledge. In addition, the amended complaint contains certain specific factual allegations concerning the nature of this alleged defective condition. The city contends that these latter allegations reveal as a matter of law that no valid basis for recovery exists.

Had Williams limited himself to the particularized factual allegations in question, we might be inclined to agree that the complaint states no claim for relief. However, it is expressly stated in the complaint that the alleged facts asserted therein are in addition to others not specifically set forth. Thus, we cannot conclude as a matter of law, at this stage of the proceedings, that there is no conceivable state of facts the plaintiff might be able to prove in support of his complaint which would entitle him to a recovery against the city for the knowing maintenance of a dangerous condition. See, e.g., Town of Ft. Oglethorpe v. Phillips, 224 Ga. 834 (165 SE2d 141) (1968); Coppedge v. Columbus, 134 Ga. App. 5 (213 SE2d 144) (1975); City of Atlanta v. Roberts, 133 Ga. App. 585 (211 SE2d 615) (1974). See also Columbus v. Preston, 155 Ga. App. 379 (270 SE2d 909) (1980); Barnum v. Martin, 135 Ga. App. 712 (3) (219 SE2d 341) (1975). It follows that the trial court did not err in denying the motion to dismiss the complaint for failure to state a claim on which relief could be granted.

Judgment affirmed.

Carley and Benham, JJ., concur.

On Motion for Rehearing.

On motion for rehearing, the city has submitted an affidavit from the judge of the lower court stating that the appellee’s ante litem notice was “stipulated by the parties as being incorporated into [appellee’s] pleadings” and was therefore treated by the court as being part of the complaint in ruling on the motion to dismiss.

“ ‘This court is a court for the correction of errors and its decision must be made on the record sent to this court by the clerk of the court below and not upon the briefs of counsel.’ (Cits.).” Tingle v. Arnold, Cate & Allen, 129 Ga. App. 134, 139 (2) (199 SE2d 260) (1973). “Exhibits attached to an appellate brief but not appearing in the record transmitted by the trial court cannot be considered by this court and afford no basis for reversal.” Taylor v. Bentley, 166 Ga. App. 887 (2) (305 SE2d 617) (1983). Accord Griffith v. Ga. Bd. of Dentistry, 175 Ga. App. 533 (333 SE2d 647) (1985).

In the event the record on appeal does not accurately reflect what transpired in the court below, a procedure is provided by OCGA § 5-6-41 (f) whereby a party may have the misstatement or omission corrected, either before or after the record is transmitted to this court. However, once the appellate court has rendered its decision in the case, that procedure is no longer available and therefore may not be used as a vehicle for securing the grant of a motion for rehearing or application for certiorari. State v. Pike, 253 Ga. 304, 307 (320 SE2d 355) (1984). “Once the appellate court renders its decision, OCGA § 5-6-48, . . . under which the action originates in the discretion of the appellate court, becomes the exclusive method for supplementing the record.” Id.

We decline to exercise our discretion pursuant to OCGA § 5-6-48 to order such supplementation of the record in the present case for two reasons. In the first place, it would appear that the omission sought to be corrected resulted not from any error or omission on the part of the clerk of the trial court but rather from the failure of appellant’s counsel to perfect the record. See generally Bhatia v. West Cash & Carry &c. of Savannah, 157 Ga. App. 145, 146 (276 SE2d 656) (1981). Secondly, our original decision in this case will not require the retrial of a case which has already been tried (compare State v. Pike, supra), nor will it prevent summary adjudication of any issues which ought not to be tried. In this regard, we observe that it is the rare case in which a motion to dismiss for failure to state a claim, as opposed to a motion for summary judgment, will provide an appropriate procedural device for securing summary adjudication of the issues raised in a complaint, given that in order to prevail on a motion to dismiss the defendant must show “that the plaintiff could not possibly introduce evidence within the framework of his complaint sufficient to sustain a grant of the requested relief.” Willis v. Dept. of Revenue, 255 Ga. 649, 650 (1) (340 SE2d 591) (1986).

Decided October 21, 1987

Rehearing denied November 9, 1987

Eugene H. Polleys, Jr., Ray L. Allison, for appellant.

C. Frederick Overby, James E. Butler, Jr., for appellee.

Motion for rehearing denied.


author: Benham, Judge.

text:
    75250.
    STAPELTON et al. v. SKY VALLEY, INC.
    (363 SE2d 48)
   Benham, Judge.

Appellants, property owners in the City of Sky Valley, filed suit, seeking injunctive relief, the appointment of an auditor, and an accounting. Appellants subsequently withdrew their request for injunctive relief, and the trial court denied their requests for the appointment of an auditor and for an accounting. This appeal followed.

1. The power of the trial court to appoint an auditor extends to cases at law and in equity. OCGA §§ 9-7-2; 9-7-3. “The mere fact of [a prayer for an accounting] does not call into action the equity powers of a court. [Cits.]” Peeples v. Peeples, 193 Ga. 358 (2) (18 SE2d 629) (1942). There being no showing that a remedy at law would be inadequate if an accounting were had, appellate jurisdiction lies in this court. Id.; Universal Garage Co. v. Fowler, 184 Ga. 604 (192 SE 299) (1937).

2. “The appointment of an auditor is a matter vested largely in the discretion of the court, and unless this discretion has been abused, the refusal to appoint an auditor will not be held erroneous.” Teasley v. Bradley, 120 Ga. 373 (1) (47 SE 925) (1904). See also Spencer v. Northwestern &c. Ins. Co., 27 Ga. App. 710 (2) (109 SE 510) (1921). The record contains no evidence of an abuse of discretion on the part of the trial court in refusing to appoint an auditor. Therefore, it was not error to refuse to appoint an auditor or to order an accounting.

Decided November 9, 1987.

John M. Brown, for appellants.

Richard D. Tunkle, for appellee.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


author: McMurray, Presiding Judge.

text:
    74549.
    RODRIGUEZ v. THE STATE.
    (363 SE2d 23)
   McMurray, Presiding Judge.

Defendant was convicted of trafficking in cocaine and of violation of the Georgia Controlled Substances Act (possession of more than one ounce of marijuana). This appeal followed the denial of this motion for new trial. Held:

1. In his first enumeration of error, defendant contends the trial court erred in failing to declare a mistrial after the State’s attorney, during his opening statement, referred to information given to a police officer by a confidential informant that defendant, “at his home, . . . had been trafficking in cocaine.” In his brief, defendant argues that the State’s attorney was aware that this comment “would not and could not” be supported by competent evidence at trial and that the trial court’s curative “instructions could not have removed the taint from the minds of the jury.” In response, the State argues that “[t]he statement by the [assistant] district attorney did not cause irreparable harm and the court’s curative instructions were sufficient to remove any taint from the jurors’ minds.”

In response to defense counsel’s objection and motion for mistrial during the State’s opening statement, the assistant district attorney offered no evidentiary basis for his conclusion. Instead, he argued that “the jury has a right to know the information the police officer received in getting the search warrant . . ,” Rejecting this argument and recognizing the potential harm injected by the assistant district attorney’s comment, the trial court instructed the jury as follows: “Ladies and gentlemen of the jury, statements made by the district attorney in his opening remarks to explain the basis of the issuance of the search warrant, whether that statement was true or not would be a matter to determine only if the person who made it was present in court. That person will not be present in court to my knowledge. It would be hearsay evidence and you cannot use it as part of your deliberations in this case. You would consider it only as the basis of the issuance of the warrant, not as evidence in the case, the fact that it actually did happen. It is tendered just so, why the officers acted as they did, that and nothing more.”

We have examined the entire trial transcript and record and we find no evidence to support the assistant district attorney’s comment made during opening statement. “The only legitimate purpose of an opening statement is so to explain to the jury the issue they are to try that they may understand the bearing of the evidence to be introduced. There is no occasion and no excuse for attempting to influence the jury in advance by improper statements as to evidence which counsel knows he cannot prove or will not be permitted to introduce. It has often been stated that it is the duty of a prosecuting attorney to see that justice is done and nothing more. That duty should not be forgotten in an excess of zeal or the eager quest for victory in his case. The people of the state desire merely to ascertain beyond a reasonable doubt that the accused is guilty of the crime charged, and do not countenance any unfairness upon the part of their representatives in court.” Lickliter v. Commonwealth, 249 Ky. 95, 100 (60 SW2d 355, 357).

In the case sub judice, we are satisfied that the trial judge did all he could, short of granting defendant’s motion for mistrial, to remove the prejudice precipitated by the assistant district attorney’s unsubstantiated opening comment. However, we are not satisfied that the “poison of prejudice with which the minds of the jury had been inoculated in the beginning of the trial could not be and was not altogether removed.” Lickliter v. Commonwealth, 249 Ky. 95, 100, supra. See Pilcher v. State, 91 Ga. App. 428, 430 (1, c) (85 SE2d 618); Hall v. State, 138 Ga. App. 20 (1) (225 SE2d 705). Compare Jacobs v. State, 137 Ga. App. 592, 594 (3) (224 SE2d 462). Nevertheless, in the case sub judice, assuming, without deciding, that the trial court’s instructions to the jury were not sufficient, the evidence against defendant was overwhelming. More specifically, law enforcement officers found in defendant’s home a variety of drug related paraphernalia, 61.3 grams of pure cocaine, 85.7 grams of marijuana and a substantial amount of U. S. currency, much of which had been stored with controlled substances in concealed places throughout the house where defendant resided. Defendant was present when the police officers unexpectedly searched his home. Further, defendant admitted to a police officer after his arrest that the drugs found in the house were his. Under these circumstances, “we conclude that it is highly probable that the remark during the State’s opening statement . . . did not contribute to the judgment of conviction in this case. Hamilton v. State, 239 Ga. 72, 76 (235 SE2d 515) (1977); Lingerfelt v. State, 238 Ga. 355, 359 (4) (233 SE2d 356) (1977); Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).” Blanchard v. State, 247 Ga. 415, 417 (2) (276 SE2d 593). Consequently, this enumeration of error is without merit. Compare Daniels v. State, 58 Ga. App. 599, 604 (3) (199 SE 572), and Quinn v. State, 171 Ga. App. 590, 591 (2, a) (320 SE2d 827).

2. In his second enumeration of error, defendant contends “[t]he Trial Court erred in failing to terminate prosecution upon OCGA § 16-13-31 being repealed effective March 28, 1986, and the new statute not being effective until July 1, 1986.”

The crime, “trafficking in cocaine,” is defined in OCGA § 16-13-31 (a). On March 28, 1986, the legislature approved the repeal of former OCGA § 16-13-31 (a) and approved a new subsection (a) in lieu thereof. This new subsection (a) became effective by operation of law on July 1, 1986. See OCGA § 1-3-4 (a) (1). Defendant contends that former subsection (a) was repealed on the date the legislature approved the new subsection (a), March 28, 1986; thus, creating a “gap,” between the repeal of former subsection (a) and the effective date of the new subsection (a), July 1, 1986, during which time it was not a crime in Georgia to traffic in cocaine. From this reasoning, defendant argues that his May 29, 1986, conviction for “trafficking in cocaine” should have been set aside since it was not a crime to traffic in cocaine at that time.

OCGA § 1-3-4 (a) provides, in pertinent part, that “[u]nless a different effective date is specified in an Act . . . [a]ny Act which is approved by the Governor or which becomes law without his approval on or after the first day of January and prior to the first day of July of a calendar year shall become effective on the first day of July . . .”

Georgia Laws 1986, p. 397, §§ 1 and 2, was enacted “[t]o amend Code Section 16-13-31 . . . [and] to repeal conflicting laws . . .” These changes were approved by the Governor on March 28, 1986, but no effective date was specified in the Act. As a result, the entire Act, including the repeal of “[a]ll laws and parts of laws in conflict with [the] Act. . . ,” became effective on July 1, 1986. Consequently, there was no “gap” during which time it was not a crime to traffic in cocaine in Georgia. This enumeration of error is without merit.

3. In his third enumeration of error, defendant contends “[t]he Trial Court erred in finding [his] Incriminating Statement and Confession freely and voluntarily given.”

After his arrest and while en route to the police station, defendant admitted to Officer Donald R. Wiegand, of the DeKalb County Police Department, that the controlled substances found at defendant’s home were his. Before evidence of this admission was introduced, the trial court conducted a hearing in accordance with Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908). Officer Wiegand testified that, prior to questioning, defendant was advised as to his Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694), rights. More specifically, Officer Wiegand testified that he asked defendant whether “he understood [his Miranda rights] and did he have any questions about them and [defendant] said that he understood them and no, he had no questions.” Officer Wiegand also testified that he did not “threaten [defendant] in any way . . .’’or “promise him anything if [defendant] gave a statement ...” From this and other evidence adduced at the hearing, the trial court found that defendant’s statement was “admissible and that [it was] freely and voluntarily given.” “ ‘(W)e must accept this factual determination unless it is shown to be clearly erroneous. (Cits.)’ Williams v. State, 174 Ga. App. 56, 58 (3) (329 SE2d 226).” Lovell v. State, 179 Ga. App. 98 (1), 99 (345 SE2d 645). Notwithstanding defendant’s contrary assertions in the case sub judice, we do not find the trial court’s determination to be “clearly erroneous.” See Mitchell v. State, 162 Ga. App. 780, 781 (3) (293 SE2d 48). Consequently, the trial court did not err in allowing testimony of defendant’s admission at trial.

Decided October 28, 1987

Rehearing denied November 10, 1987

William R. Moody, Jr., Lee Sexton, for appellant.

Robert E. Wilson, District Attorney, Gregory A. Futch, Elisabeth G. MacNamara, Assistant District Attorneys, for appellee.

Judgment affirmed.

Sognier, J., concurs. Beasley, J., concurs in Division 2 and concurs in the judgment only as to Divisions 1 and 3.

       Prom an examination of the record, it appears the assistant district attorney was relying on information contained in a police officer’s affidavit which was prepared and executed to obtain a search warrant for defendant’s home. The affidavit was based on information derived from a confidential informant. While such an affidavit is useful in obtaining a search warrant, its introduction into evidence at trial has been held to be reversible error where the informant does not testify at trial. Reed v. State, 150 Ga. App. 312, 314 (2) (257 SE2d 380).


author: Sognier, Judge.

text:
    74525, 74526.
    HARDWICK, COOK & COMPANY et al. v. 3379 PEACHTREE, LTD. et al.; and vice versa.
    (363 SE2d 31)
   Sognier, Judge.

3379 Peachtree, Ltd., Steinemann Management Company, and its president, Frank Steinemann, Jr., the owner and managers of an office building (collectively Peachtree), brought a dispossessory proceeding seeking possession of the premises as well as damages against their tenants, Hardwick, Cook & Company, a general accounting firm, and its partners, Gregory G. Hardwick and R. Willis Cook (collectively Hardwick, Cook). In March 1985, the trial court granted Peach-tree’s motion for partial summary judgment on the issue of possession of the premises. Hardwick, Cook filed a notice of appeal, but subsequently voluntarily withdrew it and vacated the premises. Nine months later, the trial court granted partial summary judgment to Peachtree on most, but not all, remaining issues, and all parties appeal.

The record reveals that Hardwick, Cook occupied the premises under a lease which provided for payment of a base rent which was to be adjusted annually based on the tenant’s share of any increase or decrease in the building’s operating expenses. The record further shows that a major renovation of the building was undertaken in 1984, which involved putting a glass “shell” around the existing building, giving rise to an escalating dispute between the parties which culminated in this action. It is uncontroverted that in December 1984 Hardwick, Cook did not pay its rent to Peachtree, and that despite Hardwick, Cook’s tender of the rent on January 7, 1985, Peachtree refused the tender, exercised its right to terminate the lease, and instituted dispossessory proceedings.

1. In the main appeal, Hardwick, Cook first contends the trial court erred by granting partial summary judgment to Peachtree on the issue of possession of the premises. We do not agree with Peach-tree that we are precluded from considering any enumerations based on the March 1985 order because any appeal from that order is not timely. Contrary to Peachtree’s argument, Mitchell v. Oliver, 254 Ga. 112 (327 SE2d 216) (1985) is factually inapposite, because in Mitchell the appeal from a grant of partial summary judgment was involuntarily dismissed by the appellate court, while in the instant case Hardwick, Cook did not suffer dismissal of its “[OCGA] § 9-11-56 (h) appeal for failure to fulfill procedural requirements.” Id. at 114 (1). Thus, the “sanction of res judicata which attaches to a final judgment from which a procedurally defective appeal is taken,” suffered by the appealing party in Mitchell, is not applicable to Hardwick, Cook. Hardwick, Cook has perfected a proper appeal under the provisions of OCGA § 9-11-56 (h) from the trial court’s subsequent order granting partial summary judgment to Peachtree on other issues, and thus under the facts of this case (in which a second order granting partial summary judgment has been entered) in the interest of judicial economy, the prior grant of partial summary judgment will be reviewed and determined by the appellate court, without regard to the present direct appealability of the judgment. OCGA § 5-6-34 (c).

We therefore turn to the merits of Hardwick, Cook’s contention in this and two other enumerations. Hardwick, Cook maintains that its tender of the past due rent affords it a complete defense to the dispossessory under OCGA § 44-7-52. However, we agree with the trial court that the provisions of OCGA § 44-7-52 do not apply to the circumstances of this case. The lease for these commercial premises provides that “[a] failure by [Hardwick, Cook] to pay the rent, or to make any other payment required to be made by [Hardwick, Cook] hereunder, where such failure continues for ten (10) days after the date such payment was due” constitutes an event of default under the lease. The lease further provides that in the event of a default, the landlord [Peachtree] may, with or without notice of demand, “[g]ive written notice to [Hardwick, Cook] of [Peachtree’s] election to terminate this Lease, re-enter the Premises with or without process of law and take possession of the same and of all equipment and fixtures therein and expelí (sic) or remove [Hardwick, Cook] and all other parties occupying the Premises. . . .” “Similar language has been held to constitute a waiver of the provisions of [OCGA Title 44, Ch. 7, Art. 3]. [Cit.] ‘[OCGA § 44-7-2 (b) (Ga. L. 1982, p. 3, § 44)] provides that a landlord may not avoid in any lease “for the use or rental of real property as a dwelling-place” any of the requirements set forth in [article 3 of chapter 44-7, relating to proceedings against tenants holding over]. (Emphasis supplied.) Conversely, it follows that a landlord may contract to avoid these statutory requirements when renting property which is not to be used as a dwelling place.’ [Cits.]” Eason Publications v. Monson, 163 Ga. App. 370, 371 (294 SE2d 585) (1982). Thus, by entering into the lease agreement, Hardwick, Cook waived the defense provided by OCGA § 44-7-52, and Peachtree was entitled to refuse the tender.

The record does not support Hardwick, Cook’s argument that no sufficient demand for possession was made prior to instituting suit. It is well settled that this court will not consider factual representations made in a brief which are not supported by the record and thus we will not consider this argument. Pruitt v. Tyler, 181 Ga. App. 174, 175-176 (351 SE2d 539) (1986).

Finally, in regard to the issue of possession, we are not persuaded by Hardwick, Cook’s argument that no rent was owed in December because it was entitled to set off various amounts allegedly owed to it by Peachtree or several other entities. Pretermitting the question of whether such claims may be valid, the lease expressly provides that rent “shall be paid without deduction or offset.” Accordingly, the trial court did not err by granting partial summary judgment to Peachtree on the issue of possession of the premises.

2. Hardwick, Cook next asserts, in three separate enumerations, that the trial court erred by awarding attorney fees to Peachtree because the action is still pending below, and there is not yet a “prevailing party.” We do not agree. The lease provides that “[i]n the event that [Peachtree] should bring suit for the possession of the Premises, . . . then all costs and expenses, including reasonable attorney’s fees, incurred by the prevailing party therein shall be paid by the other party. . . .” Although it is true that some portions of this action are still pending below, particularly as to the amount of damages, the issue of possession of the premises has been decided, and it is clear that Peachtree is the prevailing party, having been awarded possession. Similarly, Peachtree clearly prevailed on the other issues as to which the trial court awarded attorney fees. Therefore, under the clear and unambiguous terms of the lease, Peachtree is entitled to costs and expenses, including attorney fees, as to those issues.

We find no merit in Hardwick, Cook’s argument that the affidavit submitted by Peachtree in support of its claim for attorney fees is insufficient evidence on which the trial court could have properly based such an award, in that it contained no hourly breakdown of the fee. “Sufficient evidence to support an award of attorney’s fees would not necessarily have to consist of the man hours devoted to the case but might only consist of an opinion of an expert ([Peachtree’s] attorney might well qualify as an expert) as to what a reasonable fee would be for the services rendered.” Liberty Mut. Ins. Co. v. Kirkland, 156 Ga. App. 576, 577 (275 SE2d 152) (1980).

3. Hardwick, Cook claims the trial court erred by granting summary judgment against it on its counterclaim for damages for Peach-tree’s breach of the covenant of quiet enjoyment of the premises. Hardwick, Cook claims, and Peachtree does not dispute, that there was substantial disruption at the building during the extensive renovation. However, it is uncontroverted that Hardwick, Cook continued its occupancy and its business during the renovation, and nothing in the record indicates a constructive eviction. See generally Morris v. Battey, 33 Ga. App. 422, 423 (3) (126 SE 854) (1925); Feinberg v. Sutker, 35 Ga. App. 505, 506 (1) (134 SE 173) (1926). Further, we agree with the trial court that the renovations were contractually authorized by the lease, in which Hardwick, Cook, as tenant, waived and released any claim for damages related to the renovation unless the landlord failed to carry out the renovation work “in such manner as to cause [Hardwick, Cook] the least inconvenience practicable.” In support of its motion for summary judgment, Peachtree proffered the deposition testimony of Frank C. Steinemann, Jr., president of the management company, who testified as to several ways in which the owners and management attempted to conduct the renovation so as to cause tenants the least inconvenience possible, specifically that the elevator cabs were renovated one at a time, the existing exterior walls were left in place during the renovation to minimize the dust and debris in offices, the lobby was refurbished piecemeal to ensure access during the work, and the general contractor was instructed to perform the noisiest construction work during evenings and weekends. In the absence of any evidence from Hardwick, Cook rebutting this or showing that the work could have been conducted in a less intrusive or inconvenient fashion, the trial court did not err by granting summary judgment to Peachtree on this issue. See generally Stipp v. Bailey, 181 Ga. App. 555, 556 (353 SE2d 52) (1987).

4. Hardwick, Cook contends the trial court erred by granting partial summary judgment against it as to its counterclaim seeking recovery of “excess rent” paid to the previous owner, prior to the time Peachtree purchased the building. This argument must fail since it is clear that under the terms of the lease any reimbursement allegedly owed to Hardwick, Cook for the time prior to Peachtree’s purchase of the building would be the responsibility of the previous owner.

5. Peachtree sought recovery below for three acts of Hardwick, Cook allegedly constituting trespass: throwing trash out the windows of its offices between the original outside walls and the new glass “shell” so that the trash came to rest directly outside Peachtree’s management office windows, placing trash in the halls and common areas, and driving a car into the sheetrock wall of the building’s parking garage. The trial court granted partial summary judgment to Peachtree as to its claim that Hardwick, Cook was liable for trespass when it threw trash out the windows, but did not rule on the other two claims of trespass.

(a) In view of the admission by Hardwick, Cook that it did throw trash out the windows of its office, thereby establishing the trespass, we find Hardwick, Cook’s argument that it was entitled to so throw the trash because the space between the old exterior wall and the new glass “shell” was either a common area or a portion of its leased premises, to be utterly without merit. Nor are we persuaded by Hard-wick, Cook’s argument that it was prevented from presenting any defenses in justification or mitigation of damages by the trial court’s grant of summary judgment against it on this issue. The issue of damages has been left for determination by a jury, and such defenses may be raised at that time.

(b) Although Peachtree contends in its cross-appeal that the trial court erred by denying its motion for partial summary judgment as to its claims that Hardwick, Cook is liable in trespass for the other two incidents, we agree with Hardwick, Cook that the trial court’s order neither granted nor denied Peachtree’s motion for partial summary judgment as to these issues, and consequently, there is nothing for us to review. Peachtree’s cross-appeal must therefore be dismissed. See Stoddard v. Bd. of Tax Assessors, 173 Ga. App. 467, 469 (4) (326 SE2d 827) (1985). We note, however, that because of conflicting evidence as to whether Peachtree’s tenants had been informed not to place trash in the halls, and whether Gregory Hardwick drove his car into the wall or whether the car was pushed or bumped into the wall by another vehicle, neither of these issues would have been amenable to summary adjudication.

6. We find no merit in Hardwick, Cook’s allegation that the trial court erred by granting summary judgment to Peachtree on its claim that Hardwick, Cook was liable in nuisance for intentionally playing a radio loudly in its window for the specific purpose of harassment. Gregory Hardwick admitted in his deposition testimony that he positioned the radio so that it would be likely to cause disruption and that it was played at a “somewhat loud level” on ten occasions. Contrary to Hardwick, Cook’s argument, the fact that the lease did not prohibit playing a radio is not dispositive of this issue. For “[although an act may be lawful in itself, it becomes a nuisance when conducted in an illegal manner to the hurt, inconvenience, or damage of another . . . [Cit.]” West v. Chatham County, 177 Ga. App. 417, 418 (339 SE2d 390) (1986). Under the facts presented here, the trial court did not err by granting summary judgment to Peachtree.

Decided October 29, 1987

Rehearing denied November 10, 1987

Norman E. Smith, for appellants.

Warren W. Wills, Jr., Alan F. Herman, Paul H. Arne, Robert F. Woodland, Jr., for appellees.

7. We have examined the record carefully, and we find no merit in Hardwick, Cook’s claims regarding alleged set-offs owed it for Peachtree’s failure to furnish the correct number or type of parking spaces, or reasonable elevator service. Accordingly, the trial court did not err by striking Hardwick, Cook’s counterclaims as to these matters. OCGA § 9-11-12 (f).

Judgment affirmed in Case No. 74525. Appeal dismissed in Case No. 74526.

McMurray, P. J., and Beasley, J., concur.


text:
    75012.
    NEWMAN v. RUBY TUESDAY, INC.
    (363 SE2d 26)
   Sognier, Judge.

Elsie L. Newman instituted an action to recover damages resulting from her slip and fall in a restaurant owned by Ruby Tuesday, Inc. The trial court granted summary judgment in favor of the restaurant and Newman appeals.

The record reveals that while appellant and her daughter, Delree Friant, were being escorted to a table at appellee’s restaurant by a waitress, appellant slipped and fell forward to the floor as she and her daughter followed the waitress past the restaurant’s salad bar. After the fall, no inspection of the soles of appellant’s shoes was made. However appellant’s daughter testified by deposition that after the fall she noticed a white smear on the right front shoulder of appellant’s jacket and a grease stain on her own slacks where she had been kneeling on the floor to assist her mother. Friant also testified that she felt the floor with her hand, and it felt greasy. From these observations, appellant and Friant concluded that appellant’s fall was caused by salad dressing which had spilled from the adjacent salad bar. It is uncontroverted that appellee did not have actual knowledge of any foreign substance on the floor which may have caused appellant’s fall.

In three related enumerations of error, appellant contends the trial court erred by granting summary judgment in favor of appellee because genuine issues of fact remain with regard to whether appellee may be charged with constructive knowledge of the condition at the salad bar. While we agree that testimony regarding appellant’s and her daughter’s smeared and stained clothing may have been sufficient to raise issues of fact as to whether the alleged foreign slippery substance on the floor caused appellant’s fall, we find that these issues do not avail appellant in her quest to show constructive knowledge on appellee’s part and thus prevent summary judgment in favor of appellee.

Appellant argues that constructive knowledge may be imputed to appellee because several of appellee’s employees (possibly busboys or waitresses) were near the area at the time of the accident. Based on the presence of other employees in the vicinity, or, alternatively, on the presence of the waitress leading appellant and her daughter to their table, “[appellant] seeks to invoke a conclusion that because [appellee’s] employees were present near the scene of the slip and fall [appellee] constructively was aware of the dangerous situation caused by the slippery substance. The fallacy of the supposition of constructive knowledge is that the condition must in fact exist and for a sufficient period of time in the immediate vicinity of the proprietor’s agents so that constructive knowledge may be imposed. [Cit.]” Kenny v. M & M Supermarket, 183 Ga. App. 225, 226 (358 SE2d 641) (1987). “[T]here never has been a rule in this state that liability can be shown by nothing more than the fact that the defendant’s employee was in the immediate area of the hazardous substance. In every case, the rule that states that proposition also requires a finding that the defendant’s employee had ‘an opportunity to discover and remove the hazard,’ which can only be shown, and in fact in the early cases was shown, by evidence that the hazard existed for a length of time sufficient for the defendant to discover the hazard and remove it. . . . The proprietor’s liability in all these cases is based upon the proprietor’s failure to inspect and make safe the premises where the dangerous condition has existed long enough for him to discover it (or for it to be unreasonable not to know of the hazard); or stated otherwise, upon the superior knowledge of the proprietor, actual or constructive. [Cits.]” Mitchell v. Food Giant, 176 Ga. App. 705, 709 (337 SE2d 353) (1985). See also Mayfield v. All American Quality Foods, 182 Ga. App. 711 (356 SE2d 745) (1987). We find nothing in the record showing any of appellee’s employees were in the area before the fall, other than the waitress who was escorting appellant and her daughter. Contrary to appellant’s assertions in her brief, in their deposition testimony neither appellant nor her daughter had any positive recollection of other employees being in the vicinity. Further, assuming there was a slippery substance on the floor, appellant made no showing that it had been there long enough to give appellee a reasonable time and opportunity to remove it, and thus rebut appellant’s affirmative evidence to the contrary. By appellant’s own admission, appellee’s waitress traversed the area of the fall only “a half-step” before appellant, and thus could not have had knowledge of any hazard for a sufficiently long time to give rise to a duty to take action to prevent appellant’s fall.

Appellant’s reliance on Caree v. Revco Discount Drug, 175 Ga. App. 487 (333 SE2d 387) (1985) is misplaced. In Caree, a majority of this court held the facts there indicated there was spilled baby oil on the floor of the store, and a store security guard had traversed the aisle where the spill was located just moments before the fall occurred, giving rise to an inference, from the evidence presented, that the guard could have observed the baby oil and corrected the hazardous condition. No such inference may be drawn from the facts in the case sub judice. We find no indication in the record that if a foreign substance was present appellee’s waitress had any more opportunity to observe and avoid it than did appellant and her daughter and we decline to impute constructive knowledge of the hazard to appellee under these circumstances.

Nor is the point appellant raises with regard to the credibility of the testimony of appellee’s manager, Nancy Jean Tilton, well taken. Even assuming appellee’s evidence was contradictory and construing it most strongly against appellee, Tilton’s uncontroverted statement still stands that she personally conducted an inspection of the floor after the fall and found no foreign substance. Further, the issue to which any such contradiction would be relevant is not the dispositive one in this case, for, as discussed above, “[e]ven assuming the inference that she slipped on [salad dressing], there is simply nothing in the evidence to show superior knowledge on the part of the [appellee] of a hazard which could give rise to a duty to remove it or warn customers, so that failure to do so could be found to constitute a failure to exercise the duty of ordinary care in keeping the premises safe, which befalls the one who is in control of the premises. [Cits.] In this state, the proprietor is not an insurer of its customers’ safety. [Cit.]” Cook v. Arrington, 183 Ga. App. 384, 386 (358 SE2d 869) (1987). The trial court did not err by granting summary judgment in favor of appellee.

Decided October 28, 1987

Rehearing denied November 10, 1987.

Carol D. Sweet, for appellant.

Taylor T. Daly, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


author: Pope, Judge.

text:
    74836.
    FREEMAN v. FARR et al.
    (363 SE2d 48)
   Pope, Judge.

Defendant James Farr maintained a woodworking shop in his garage where he occasionally took special orders for carpentry and cabinet-making for customers. On January 27, 1984 plaintiff Bessie Mae Freeman left work with a friend who drove her to Farr’s place of business. Plaintiff got out of a car in defendants’ driveway and walked toward the garage with the intention of placing an order with Farr for a cabinet. Thinking Farr was not in his shop, plaintiff walked past the garage and commenced to walk around the corner of the building with the intention of cutting through an open field on her way to a nearby store where she knew her husband was waiting to meet her to drive her home. As she rounded the corner, about five to ten feet beyond the garage, defendants’ German shepherd dog, which was chained to a post near the garage, allegedly bit plaintiff’s hand and knocked her into a ditch. Plaintiff brought a complaint for personal injuries against defendant Farr and his wife, alleging defendants knew the vicious disposition of the dog and yet negligently failed to restrain and manage the dog. Plaintiff appeals from the lower court’s grant of summary judgment to defendants. Both enumerations of error raised by plaintiff relate to whether sufficient evidence exists to create an issue of fact as to whether defendants had knowledge of the alleged dangerous propensity of the animal. We will, therefore, address the two enumerations as one.

At the time this incident occurred, the applicable statute provided: “A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person . . . shall be liable in damages to the person so injured.” OCGA § 51-2-7 (subsequently amended by Ga. L. 1985, p. 1033, § 1, effective July 1, 1985). “Concerning this statutory provision, this court has repeatedly held that ‘(p)roof that the owner of the dog either knew or should have known of the dog’s propensity to do the particular act which caused injury to the complaining party is indispensable to recovery against the owner. [Cit.]’ ” Smith v. Culver, 172 Ga. App. 183 (322 SE2d 294) (1984).

Decided November 10, 1987.

Theodore P. Bianco, for appellant.

H. Andrew Owen, Jr., Perry A. Phillips, for appellees.

The evidence shows the dog was restrained by a chain attached to a post. However, the size of the dog, its breed and the fact that the defendants kept it restrained do not establish any inference that defendants knew the dog to be dangerous. Stanger v. Cato, 182 Ga. App. 498 (356 SE2d 97) (1987). The affidavit of a neighbor attesting that he had observed the dog tugging on its chain and lunging menacingly at passersby is irrelevant to show defendants knew or should have known of the alleged vicious propensity of the animal. The only evidence presented in the record on the issue of defendants’ knowledge of the animal’s disposition was an admission against interest allegedly made by Farr to plaintiff’s husband after the incident that if the dog were turned loose from his chain “he would hurt you.” Defendant Farr denies making such statement and both defendants deny any knowledge that the dog was vicious or had the propensity to bite or knock down passersby. Even if a jury were to believe Farr made this admission, it would only show the owner knew the dog should be restrained, which it was. The simple fact that a dog is restrained on a chain may not be sufficient to establish the owner is free from liability for “careless management” pursuant to OCGA § 51-2-7. Obviously, liability for the acts of a restrained dog depends on where the dog is chained in proximity to those he might injure. Here the evidence shows the dog was chained behind or next to a garage in an open field. The location of the dog obviously did not create a danger for persons who could reasonably be expected to approach the business or shop located in defendants’ garage. The evidence shows the dog was confined at a location where defendants would not reasonably expect the dog to pose any danger. No evidence was presented to show defendants knew the dog had lunged or threatened persons passing near the dog. Under these facts no evidence exists to show defendants had practiced careless management of their dog.

Judgment affirmed.

Birdsong, C. J., and Been, P. J., concur in judgment only.

       Defendants’ knowledge that their dog, while still a puppy, had “nipped” a neighbor’s hand as the puppy ate a sandwich out of her hand is insufficient to show knowledge of a vicious propensity to bite passersby.


author: Sognier, Judge. Beasley, Judge,

text:
    75070.
    DENNY & ASSOCIATES, INC. v. SOUTHERN AGGREGATES COMPANY et al.
    (363 SE2d 50)
   Sognier, Judge.

Denny & Associates, Inc. (Denny) instituted an action against Southern Aggregates Company (Southern) as principal, and St. Paul Fire and Marine Insurance Company (St. Paul), as surety, to recover on payment bonds entered into under a public works project. The trial court denied Denny’s motion for summary judgment, and the parties thereafter submitted the case on undisputed facts for decision by the court. The trial court dismissed Denny’s complaint on the merits, and Denny appeals.

The record reveals that appellee Southern was the general contractor for the “Savannah Streets Project” and, as required by OCGA § 13-10-1 (a) (2), obtained payment bonds, with appellee St. Paul as surety, “for the use and protection of all subcontractors and all persons supplying labor, materials, machinery, and equipment in the prosecution of the work provided for in [its] contract.” Id. Appellant supplied plumbing supplies and materials to a subcontractor on the project, for which it was not paid.

OCGA § 36-82-104 (b) provides that a materialman such as appellant may bring an action to. enforce a payment bond if he has not been paid. The statute further provides that if no contractual relationship exists between the materialman and the general contractor, the materialman shall have this right “upon giving written notice to the contractor within 90 days from the day on which such person did or performed the last of the labor or furnished the last of the material or machinery or equipment for which such claim is made . . .” The payment bonds made no mention of the 90-day notice requirement but by their terms provided a right of action on the bonds if brought within one year from the date on which final payment under the main contract falls due. Appellant gave no notice to the contractor within 90 days of furnishing the last supplies to the subcontractor but did comply with all the stated terms of the bonds.

OCGA § 36-82-104 is derived from the federal Miller Act, 40 USC § 270, and based on that Act and United States Supreme Court decisions construing it, we have held that the notice requirement in the statute is a condition precedent to the right to sue on the payment bond. Porter-Lite Corp. v. Warren Scott Contracting Co., 126 Ga. App. 436, 438, 443 (191 SE2d 95) (1972). It is thus clear that the notice requirement must be met unless it has been waived.

Appellant contends that by omitting mention of the 90-day notice requirement from the bonds, appellees waived that requirement, and consequently the trial court erred both by denying its motion for summary judgment and by dismissing its complaint. We do not agree. “ ‘Where a bond is given under the authority of a statute in force when it is executed, in the absence of anything appearing to show a different intention it will be presumed that the intention of the parties was to execute such a bond as the law required, and such statute constitutes a part of the bond as if incorporated in it, and the bond must be construed in connection with the statute and the construction given to the statute by the courts . . . Whatever is included in the bond, and is not required by the law, must be read out of it, and whatever is not expressed, and ought to have been incorporated, must be read as if inserted into it. . ” (Emphasis supplied.) Campbell v. Benton, 217 Ga. 368, 371 (122 SE2d 223) (1961).

This is not to say that such a notice requirement may not, as a matter of law, be waived, but only that no waiver may be presumed from the omission of such a requirement from the terms of the bond “in the absence of anything appearing to show a different intention.” We are not persuaded that the reasoning of Hub Elec. Co. v. Gust Constr. Co., 585 F2d 183 (6th Cir. 1978), cited by appellant, requires a different result. Although Hub was factually similar, the Michigan statute in Hub differs from the Miller Act and Georgia law by requiring that a 30-day notice be given as well as a 90-day notice. The materialman in Hub gave the 90-day notice but failed to give the 30-day notice. Under these facts, the Hub court’s determination that the parties waived the 30-day notice may well have been based upon a finding that a “different intention” — i.e., an intention to waive the 30-day notice requirement — had been shown. Therefore, we decline to follow that opinion.

Under Georgia law and the federal cases interpreting the Miller Act, omission of the 90-day notice requirement from the terms of the bond cannot be construed as a waiver, and the record in the case sub judice contains no evidence of any other conduct from which such a waiver could be inferred. In the absence of such waiver, and in view of appellant’s uncontroverted failure to comply with the notice requirement in OCGA § 36-82-104, the trial court correctly found as a matter of law that appellant could not recover on the bonds. See generally F. L. Saino Mfg. Co. v. Fireman’s Fund Ins. Co., 173 Ga. App. 753, 755 (328 SE2d 387) (1985). Accordingly, the trial court did not err by denying appellant’s motion for summary judgment or by dismissing its complaint and entering judgment for appellee. See generally Wallis v. Clerk &c., DeKalb County, 166 Ga. App. 775, 776 (305 SE2d 639) (1983).

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur and note that the trial court did not grant judgment for defendants but rather dismissed the action although defendants were entitled to judgment on the merits.

Decided November 10, 1987.

David F. Walbert, Jesse B. Beasley, Jr., for appellant.

John M. Tatum, William G. Bell III, John B. Miller, for appellees.

Secondly, the court based its ruling on the premise that “there are no material facts at issue” and applied the law to “the undisputed facts.” Thus it impliedly rejected the contention of plaintiff that the omission of the 90-day notice provision in the bond, considered together with two unrelated bonds in which the provision was included, proved an intent to waive the statutory notice. The fact of intent was sought to be placed in issue, but the court apparently refused to allow it to be made so, instead confining defendants to the four corners of the instrument.

I agree that a comparison of these two types of bonds given on different jobs is irrelevant to the fact question of intent, so that as stated in the opinion, “the record . . . contains no evidence of any other conduct from which such a waiver could be inferred.”


text:
    75077.
    HENDERSON v. THE STATE.
    (363 SE2d 52)
   Pope, Judge.

Defendant Roosevelt Henderson was convicted of possession of marijuana with intent to distribute and escape from custody. At the time of his arrest, he had been carrying a brown paper bag which contained nineteen smaller manilla envelopes of marijuana, known as “nickel bags,” the total weight of which amounted to just less than one ounce. Defendant did not contest that he was in possession of the marijuana, but claimed he intended only to use it for himself and had no intention to sell it to others. Defendant testified he was addicted to cocaine and used marijuana cigarettes as a medium in which to “free base” cocaine. He denied ever selling drugs in order to purchase drugs. He claimed he purchased drugs with money paid to him in settlement of a personal injury claim brought by him as next friend of his minor child who had been injured in an accident. Defendant appeals his conviction, setting forth three enumerations of error.

1. Prior to trial, the court granted defendant’s motion in limine to prohibit testimony from the State’s witnesses concerning a telephone call from an anonymous informant who reported someone was selling drugs at a certain street corner. At trial, the district attorney asked one of the arresting officers to state the reason why he had gone to the location where defendant was arrested. The officer responded by stating the police had received information that a subject was selling marijuana at that location. This anonymous tip led to defendant’s apprehension and arrest. In response to the objection raised by defendant’s attorney, the court ruled that the response be excluded from the evidence. No further objection was raised by defendant. On appeal, defendant argues the court erred in failing, on its own motion, to declare a mistrial.

When, as here, an objection is made to certain testimony and the judge gives curative instructions, “the judge [is] not required to grant a mistrial on his own motion where defense counsel made no objection to the instruction given and failed to specify what further form of relief, if any, was desired.” Mathis v. State, 136 Ga. App. 701, 702 (222 SE2d 647) (1975); accord Vernon v. State, 152 Ga. App. 616 (2) (263 SE2d 503) (1979). A party may not raise an objection for the first time on appeal. If defendant believed the curative instructions given by the court were inadequate to correct the alleged prejudicial effect of the testimony, defendant should have stated his further objection or moved, at the time of trial, for further relief. “A party can not during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.” Joyner v. State, 208 Ga. 435, 438 (67 SE2d 221) (1951).

2. Defendant’s second and third enumerations of error are both related to the issue of the sufficiency of the evidence to support his conviction of the possession charge and will be addressed as one. The State produced no direct evidence that defendant intended to distribute the marijuana found in his possession. The only admissible evidence to support the verdict is the circumstantial evidence that the marijuana was packaged in nineteen manilla envelopes known as “nickel bags.” Defendant testified he purchased the marijuana for his own use.

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. “This does not mean that the [Sjtate must exclude every possible hypothesis showing innocence, but any reasonable hypothesis showing innocence.” Robinson v. State, 168 Ga. App. 569, 571 (309 SE2d 845) (1983). Where the defendant offers an explanation of circumstantial facts or an alternative hypothesis of events, the reasonableness of that explanation is for the jury. “[T]his court will not substitute its judgment as to what is a reasonable hypothesis for that of the jury or the trial court.” Id. Neither is the jury obliged to accept defendant’s explanation of circumstantial facts. Barfield v. State, 160 Ga. App. 228 (3) (286 SE2d 516) (1981). “After having heard the witnesses and having observed them testify, [the jury is] more capable of judging of the reasonableness of a hypothesis produced by the evidence, or the lack of evidence, and the defendant’s statement, than is a court of law.” Bogan v. State, 158 Ga. App. 1, 3 (279 SE2d 229) (1981).

Decided November 10, 1987.

W. Douglas Divine, for appellant.

Hobart M. Hind, District Attorney, Doris Williams, Assistant District Attorney, for appellee.

Circumstantial evidence that the total quantity of marijuana possessed by defendant was packaged in numerous small manilla envelopes is sufficient for a rational trier of fact to find defendant guilty of possession with intent to distribute. See Hudson v. State, 154 Ga. App. 594 (1) (269 SE2d 89) (1980); see also McDade v. State, 175 Ga. App. 204 (1) (332 SE2d 672) (1985). We find the circumstantial evidence in this case sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


text:
    75093.
    WORTHEY v. THE STATE.
    (363 SE2d 54)
   Sognier, Judge.

Appellant was convicted of two counts of burglary, and he appeals.

1. In his first two enumerations of error, appellant contends the trial court erred by charging the jury, after its instruction on alibi, that “it is not necessary that the State prove that the offenses were committed on the exact date alleged in the special presentment.” Appellant also alleges error in the court’s charge that “if you find and believe beyond a reasonable doubt that at any time within four years prior to the return of this special presentment into this court,” appellant entered the victims’ residences with intent to commit a theft therein, the jury would be authorized to find appellant guilty of the burglaries charged. (The court granted a motion for a directed verdict of acquittal as to a third burglary, which offense had been removed earlier from the jury’s consideration.) Appellant argues that after giving a correct charge on alibi, the court’s charges quoted above completely eliminated his defense of alibi, thereby depriving him of a fair trial. We do not agree.

All of the State’s evidence established that the offenses occurred on October 28, 1985, the date alleged in the special presentment. Appellant’s testimony and the testimony of other witnesses related to appellant’s whereabouts on October 28. Our appellate courts have held in similar circumstances that such a charge (or charges), although potentially confusing in light of the alibi defense, does not constitute reversible error. Gravitt v. State, 220 Ga. 781, 784 (2) (141 SE2d 893) (1965); Thomas v. State, 158 Ga. App. 97, 98 (1) (279 SE2d 335) (1981); McCoy v. State, 174 Ga. App. 621, 623 (2) (330 SE2d 746) (1985). Accordingly, there was no error in the court’s charges.

2. Appellant alleges that the evidence is riot sufficient as a matter of law to support the verdict, and therefore, it was error to deny his motion for a directed verdict of acquittal. The evidence disclosed that Mary Ann Kroll was returning home from work about 11:45 a.m., October 28, 1985. As she was approaching her house she noticed a white Cadillac backed into her carport with the trunk of the car open. Kroll drove past the driveway to another entrance and turned around. As she was coming back to her house the Cadillac pulled out of Kroll’s driveway and went past her. Kroll positively identified appellant as the driver of the Cadillac. Kroll drove into her carport and discovered that the door into her house was torn off its hinges and the door frame was damaged. Kroll discovered several items missing from her home.

Charles Feaselman’s house was burglarized a short time later the same day. Jeff Nalley, a deputy sheriff in Douglas County, testified that he was returning from deer hunting about 12:00 or 12:30 p.m. and a woman in a car was depositing mail in Feaselman’s mailbox. As Nalley started to pass the woman’s car a white Cadillac came out of Feaselman’s driveway, but had to stop because of oncoming traffic; the traffic also caused Nalley to stop. After the traffic cleared, the Cadillac pulled out and around the mail delivery car and passed Nalley’s vehicle; Nalley positively identified appellant as the driver of the Cadillac. When Feaselman returned home about 1:30 p.m., two deputy sheriffs were outside his home and asked Feaselman to check and see if anything was missing, as a sliding glass door on the rear of his house had been pried open. Feaselman discovered several items missing from his home. Neither Kroll nor Feaselman authorized appellant to enter their homes or remove any property therefrom. Pursuant to a “lookout” for a white Cadillac, appellant was arrested two days later driving a white Cadillac that matched the description of the car given to the police by Kroll and Nalley.

Appellant testified that he was in traffic court until 11:30 a.m. on the date of the burglaries, and on leaving court he and his wife got something to eat and then went to a garage operated by appellant’s uncle and cousin, arriving there about 12 or 12:30 p.m. Appellant stated he took his wife home and returned to the garage, where he remained the rest of the afternoon; he denied committing the burglaries. The traffic court judge testified that his records indicated appellant was in court the morning of the burglaries, but could not state how long appellant remained in court; it was possible that appellant was finished in court by 9:30 a.m. Appellant’s cousin testified that appellant did not arrive at his garage until about 3:00 p.m.

Decided November 12, 1987.

Donald C. Turner, John R. Greco, for appellant.

Frank C. Winn, District Attorney, Lois W. Gerstenberger, Assistant District Attorney, for appellee.

Although appellant presented alibi evidence, it was conflicting and did not eliminate the possibility that he left traffic court as early as 9:30 a.m. and did not go to his cousin’s garage until 3:00 p.m., leaving ample time in which to burglarize the Kroll and Feaselman residences. The weight of the evidence and credibility of witnesses are questions for determination by the jury, and this court passes on the sufficiency of the evidence, not its weight. Williams v. State, 184 Ga. App. 68 (1) (360 SE2d 634) (1987). We find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Hence, it was not error to deny appellant’s motion for a direct verdict of acquittal. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984).

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    74493, 74494.
    COOK v. SEABOARD SYSTEM RAILROAD, INC.; and vice versa.
    (363 SE2d 56)
   Benham, Judge.

Alleging that he was injured on his job with Seaboard System Railroad, Inc. (Seaboard), Cook brought an action under the Federal Employers’ Liability Act (FELA), 45 USCA § 51 et seq. The primary allegation of negligence on which Cook based his action was that Seaboard failed to provide him with a safe place to work. Specifically, Cook testified at trial that he was required to traverse a path down a muddy embankment in the dark, carrying tools in both hands, resulting in a fall and a consequent injury to his back. The jury returned a verdict for Cook, but the trial court granted Seaboard’s motion for judgment notwithstanding the verdict. In Case No. 74493, Cook appeals from the entry of judgment for Seaboard pursuant to the grant of its motion. In Case No. 74494, Seaboard cross-appeals from the trial court’s denial of its conditional motion for new trial.

1. One of the reasons the trial court gave for granting Seaboard’s motion for j.n.o.v. was a lack of evidence that Seaboard was negligent or that Seaboard’s negligence caused Cook’s injury. Our review of the evidence, in light of the standard established by the U. S. Supreme Court in Rogers v. Mo. Pacific R. Co., 352 U. S. 500 (77 SC 443, 1 LE2d 493) (1957), does not yield support for the trial court’s holding.

“Under [the FELA] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities. The statute expressly imposes liability upon the employer to pay damages for injury or death due ‘in whole or in part’ to its negligence.” Id. at 506.

Although there was evidence presented at the trial of this case which would have authorized the jury to enter a verdict for Seaboard, it cannot be said that there is no evidence that Seaboard negligently failed to provide Cook with a safe workplace or that such negligence did not cause Cook’s injury. The evidence established without contradiction that Cook was working for Seaboard at the time he alleged his injury to have occurred; that he was given the task of returning to the parking lot and bringing tools to the jobsite; that the path to and from the parking lot traversed an embankment and was unlighted; that Cook was not provided with a flashlight; that the other route available to him was one he had not previously traversed; and that he fell while carrying the tools down the embankment. Although there was other evidence to the contrary, the jury was authorized to find from Cook’s testimony that the path down the embankment was slick, red mud and that it was too dark for Cook to see clearly where he was placing his feet. Those facts raise a question concerning whether Seaboard provided Cook with a safe workplace.

Brooks v. Southern R. Co., 178 Ga. App. 361 (343 SE2d 143) (1986), cited by the trial court and by Seaboard, does not require a different conclusion. In that case, a majority of this court held that uncontroverted evidence that the employee was lifting, at the time of his injury, a weight routinely lifted by him and by others proved a lack of foreseeability which entitled the employer to judgment as a matter of law. The question of foreseeability is not so easily answered in this case. Seaboard was obviously aware of the darkness since the work site itself was lighted, and if the path was, as Cook insists, slick, Seaboard was in a position to know that, too. Under those circumstances, we cannot say as a matter of law that Seaboard could not foresee injury to Cook as a result of the activities he was performing on its behalf.

2. The trial court put great emphasis on Cook’s knowledge of the situation, and cited a number of Georgia slip-and-fall cases holding that the landowner’s superior knowledge of the defect is a necessary element of proof in such cases. The trial court also put emphasis on Cook’s failure to ask for a flashlight or to use a different path, holding that Cook’s failure to exercise reasonable care for his own safety was the sole cause of his injuries.

Since we have held above that there was evidence authorizing a finding that Seaboard negligently failed to provide a safe workplace, the trial court’s holding that Cook’s own negligence was the sole cause of his injuries is clearly erroneous. To the extent that the trial court relied on Cook’s equal knowledge of the hazards in walking on the dark path with his hands full, and on the causative impact of Cook’s own negligence, it misapplied the FELA. Under that statute, “[t]he employer is stripped of his common-law defenses and for practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit. The burden of the employee is met, and the obligation of the employer to pay damages arises, when there is proof, even though entirely circumstantial, from which the jury may with reason make that inference. The Congress when adopting the law was particularly concerned that the issues whether there was employer fault and whether that fault played any part in the injury or death of the employee should be decided by the jury whenever fair-minded men could reach these conclusions on the evidence.” Rogers, supra at 507. This is one of those cases which should be decided, as it was, by a jury. The grant of Seaboard’s motion for j.n.o.v. was error.

3. In Case No. 74494, Seaboard cross-appeals from the denial of its conditional motion for new trial. The chief argument on that issue was that the denial was inconsistent with the trial court’s ruling that there was no evidence that Seaboard’s negligence caused Cook’s injury. We disagree.

It must be remembered that a trial court’s grant or denial of a motion for new trial filed in conjunction with a motion for j.n.o.v. is conditional on an appellate court’s reversal of the ruling on the motion for j.n.o.v. OCGA § 9-11-50 (c) (1). That is, the ruling never takes effect until an appellate court has reversed the grant of j.n.o.v. The trial court here granted j.n.o.v. on the ground that the evidence was insufficient, so it must be deemed to have assumed, in ruling on the motion for new trial, that the evidence was sufficient.

Decided November 13, 1987.

Donald F. Ruzicka, William R. Moseley, Jr., David F. Walbert, David H. Bedingfield, for appellant.

Paul Oliver, H. Quigg Fletcher III, for appellee.

Still, Seaboard insists, the rulings are inconsistent because if the trial court thought that the evidence was insufficient, it must have thought that the verdict was against the weight of the evidence, and should have granted a new trial on that ground. OCGA § 5-5-21. However, the Code section provides specifically that such a decision is within the trial court’s discretion. We find no abuse of that discretion.

The other ground asserted by Seaboard and addressed by the trial court in denying the conditional motion for new trial was the admission into evidence of the testimony of an expert witness for Cook. Seaboard’s complaint is that the witness, an economist, based his testimony on two matters not in evidence: that Cook was incapable of employment by reason of disability, and that inflation would average 5 percent in the future. There was some evidence that Cook is totally unable to do work within his capabilities as they were before the fall, so any insufficiency in the factual foundation for the expert’s testimony would, as the trial court held in its order denying a new trial, affect only the weight of the evidence, not its admissibility. Woods v. Anderson, 145 Ga. App. 492 (4) (243 SE2d 748) (1978). As to the use of a 5 percent inflation rate, the expert testified that it was his opinion that the inflation rate would continue at 5 percent in the future. That opinion was admissible and its use was not error. Id. We find no error, therefore, in the trial court’s denial of Seaboard’s motion for new trial.

Judgment reversed in Case No. 74493. Judgment affirmed in Case No. 74494.

Banke, P. J., concurs. Carley, J., concurs in Divisions 1 and 2 and in judgment.