text:
    A95A0813.
    A95A0814.
    A95A0815.
    UNIFIED SERVICES, INC. v. HOME INSURANCE COMPANY et al. HOME INSURANCE COMPANY et al. v. UNIFIED SERVICES, INC. et al. SPENCER v. HOME INSURANCE COMPANY et al.
    (460 SE2d 545)
   Pope, Presiding Judge.

Plaintiff Home Insurance Company (“Home”) and defendant Unified Services, Inc. (“USI”) entered into a “Broker Agreement” in which Home agreed to provide insurance for USI’s client and bill USI on a monthly basis. The agreement contemplated that USI would bill the client for the premiums plus a commission, and that USI would then remit the premiums to Home. Although this arrangement worked successfully for several years, in early 1992 USI failed to pay Home for its client’s premiums, even though the client did pay USI. The client subsequently changed brokers and continued using Home as its insurer.

Home brought this suit for action on account/breach of contract and conversion, and USI counterclaimed for breach of contract and tortious interference with its business relations with its client. In addition to suing USI, Home sued defendants Spencer and Atkins, USI’s principals, on an alter-ego theory. Defendants filed a motion to dismiss Home’s conversion claim, and all the parties filed motions for summary judgment. The trial court’s orders on these motions are the subject of these appeals: in Case No. A95A0813, defendants appeal the grant of summary judgment to Home regarding defendants’ liability for breach of contract as well as Home’s nonliability for tortious interference with business relations; in Case No. A95A0814, Home appeals the trial court’s dismissal of its conversion claim; and in Case No. A95A0815, defendant Spencer appeals the trial court’s denial of his motion for summary judgment on Home’s alter-ego theory.

Case No. A95A0813

1. USI first contends that the trial court erred in granting summary judgment for Home on Home’s action on account/breach of contract claim. It is undisputed that USI failed to remit premiums it owed to Home under the parties’ agreement. USI nonetheless suggests that questions of fact remain because the parties subsequently reached a new agreement, in which Home allegedly agreed to retain USI’s future commissions and apply them to the amount USI owed, and Home allegedly breached this new agreement.

Analytically, however, the possibility that Home breached the new agreement cannot negate USI’s prior breach of the original agreement and thus does not preclude entry of partial summary judgment for Home on the issue of USI’s debt on account/breach. It could affect the damages USI owes Home, of course, which is why the court only granted partial summary judgment rather than entering a final judgment. USI has a counterclaim against Home for the commissions allegedly owed it under the new agreement, and the court’s partial summary judgment order did not affect this counterclaim. Thus, to the extent the jury at trial finds Home owes USI commissions, this amount will be offset against the amount USI owes Home.

2. USI also argues that the trial court erred in granting summary judgment against it on its counterclaim for tortious interference with business relations. To establish a cause of action for this tort, USI would have to show, among other things, that Home’s actions induced USI’s client not to continue its business relationship with USI. See St. Mary’s Hosp. of Athens v. Radiology Professional Corp., 205 Ga. App. 121 (2) (421 SE2d 731) (1992). Yet the representative of USI’s client (a partnership) testified in his deposition that the client changed brokers not because of anything Home did, but because the client had a new majority partner involved in an ongoing relationship with another broker. Accordingly, the trial court did not err in granting summary judgment on USI’s tortious interference counterclaim.

3. USI further asserts that the trial court should have delayed deciding the summary judgment motions until USI was able to take several additional depositions. The trial court had already denied USI’s motion to extend discovery to allow it to take these depositions, however, and USI failed to enumerate the denial of this motion as error. In any event, the trial court, having already extended discovery three times, did not abuse its discretion in refusing to extend it yet again. See Magliaro v. Lewis, 203 Ga. App. 632 (5) (417 SE2d 395) (1992); Uniform Superior Court Rule 5.

Case No. A95A0814

4. In its cross-appeal, Home contends that the trial court erred in dismissing its tort-based cause of action for conversion (and its concomitant claim for punitive damages) for failure to state a claim. “A motion to dismiss is . . . not to be granted unless under the pleadings, construed in a light most favorable to the plaintiff, plaintiff can establish no set of facts that would entitle it to relief against the defendant. [Cits.]” Wehunt v. ITT Business Communications Corp., 183 Ga. App. 560, 561 (2) (359 SE2d 383) (1987). Viewing Home’s complaint (including the Broker Agreement) in a light most favorable to it, we cannot agree with the trial court’s conclusion that USI’s alleged conduct would have breached only contractual duties, and we therefore reverse the dismissal of the conversion count for failure to state a claim.

(a) While a tort action cannot be based on the breach of a contractual duty only, it can be based on conduct which, in addition to breaching a duty imposed by contract, also breaches a duty imposed by law. Commercial Bank &c. Co. v. Buford, 145 Ga. App. 213 (243 SE2d 637) (1978). “If there is no liability except that arising out of a breach of the express terms of the contract, the action must be in contract, and an action in tort cannot be maintained. Only where private duties arise from statute or flow from relations created by the contract, express or implied, may one elect to pursue [a tort action] for damages flowing from the exercise or failure to exercise that duty. [Cits.]” Id. at 214-215.

This case presents just the type of situation described. In failing to remit premium payments for the client to plaintiff, defendants not only breached their duties under the contract, but also breached statutory and fiduciary duties imposed by law. Under OCGA § 33-23-35 (b) (formerly OCGA § 33-23-79 (b)), any premiums received by a broker/agent must be accounted for by the broker/agent “in [its] fiduciary capacity,” shall not be commingled with personal funds, and shall be promptly paid to the insurer. The Broker Agreement states that USI is not Home’s agent. But a party can be an agent for one purpose and not another, and the context of the statement that USI is not Home’s agent indicates it was intended to mean that USI is not Home’s agent for purposes of agreeing to insure a particular risk. In any case, OCGA § 33-23-1 (a) (3) (formerly OCGA § 33-23-40 (a) (3)) provides that anyone who receives money for transmission to the insurer for a contract of insurance is an agent, “anything in the application or contract . . . notwithstanding.”

USI posits that it was not transmitting its client’s premiums to Home; instead, the client had a contractual obligation to pay USI, and USI had an independent contractual obligation to pay Home, regardless of whether the client paid. This position, however, is belied by the Broker Agreement as well as common sense. Although USI quotes language from the Agreement suggesting it was obligated to pay Home even if the client did not pay it, the quote conveniently omits words which clarify that USI was only obligated to do so if it failed to exercise its option to notify Home of the nonpayment and turn the account over to Home for collection within 30 days. In other words, USI was not obligated to pay for a nonpaying client unless it chose to do so and accept the risk that the client might not pay.

“While an independent insurance agent or broker is normally considered the agent of the insured, it can also be a dual agent for both the insurer and the insured.” Byrne v. Reardon, 196 Ga. App. 735, 736 (4) (397 SE2d 22) (1990). In Byrne, we held that where a broker collected premium payments from the insured, issued notices of policy expirations and handled accident reports, it had a fiduciary relationship with the insurer as well as the insured — and thus owed duties to the insurer as well as the insured which went beyond those expressed in the contract. Like the broker in Byrne, USI collected premium payments from the client, and, particularly in light of OCGA § 33-23-35 (b)’s pronouncement that a broker collects premium payments in its fiduciary capacity, this is enough to conclude that a fiduciary relationship arose from the relationship among the parties in this case. See Quaif v. Johnson, 4 F3d 950 (11th Cir. 1993) (applying Georgia law, Eleventh Circuit affirms bankruptcy court ruling that OCGA § 33-23-79 (b) creates fiduciary relationship between broker and insurer and broker breaches its fiduciary duty when it fails to remit collected premiums); accord In re Nicholson, 55 B.R. 645 (1985). In short, we hold that where parties A, B and C arrange that C will provide insurance to A, and A will give B money for the purpose of paying C, B owes fiduciary duties to both A and C. Accordingly, the fact that the parties’ relationship arises from a contract does not preclude the possibility of a tort claim if the elements of the claim are otherwise established. See also Atlantic Mechanical Contractors v. Hurston, 185 Ga. App. 511 (364 SE2d 638) (1988).

(b) “In order to present a cause of action for conversion an act of dominion over the personal property of another inconsistent with his rights . . . must be shown.” (Citations and punctuation omitted.) Hurston, 185 Ga. App. at 511; see also Stanford v. Otto Niederer & Sons, Inc., 178 Ga. App. 56 (1) (341 SE2d 892) (1986).

USI asserts that it could not have converted the client’s premium payments because Home never gained title to those payments (i.e., the payments never became Home’s personal property). The flip side to our conclusion that USI owed Home fiduciary duties with respect to premium payments, however, is that Home had an equitable interest in the payments as soon as the client made them. And actions inconsistent with any legal interest in personalty may give rise to a conversion claim; legal title to the personal property is not necessary. Privitera v. Addison, 190 Ga. App. 102 (3) (378 SE2d 312) (1989). Cf. also Stanford, 178 Ga. App. at 57 (where agent receives payment and is supposed to deduct commission and remit rest to principal, but instead uses full amount of payment for his own purposes, conversion is established).

(c) USI further contends that dismissal was warranted because money cannot be the subject of a conversion claim. But money can be the subject of a conversion claim as long as the allegedly converted money is specific and identifiable. Adler v. Hertling, 215 Ga. App. 769 (1 & 2) (451 SE2d 91) (1994); Grant v. Newsome, 201 Ga. App. 710 (1) (411 SE2d 796) (1991). Because the premiums paid by the client to USI were specifically earmarked for remittance to Home, they are sufficiently specific and identifiable to support a conversion action. Cf. DCA Architects v. American Bldg. Consultants, 203 Ga. App. 598 (2) (417 SE2d 386) (1992) (directed verdict on conversion claim reversed where subcontractor was entitled to certain percentage of fees collected by contractor on specified projects and contractor collected fees but failed to pay subcontractor).

For these reasons, Home’s complaint stated a cause of action for conversion, and the trial court’s dismissal of this claim is reversed.

Case No. A95A0815

5. In this appeal, defendant Spencer argues that he should have been granted summary judgment with respect to Home’s efforts to pierce the corporate veil and hold him personally liable. There is evidence in the record, however, that Spencer and Atkins, the sole shareholders of USI: (1) transferred assets of USI to a newly formed corporation, without compensation to USI, right around the time USI was unable to pay Home; (2) wrote off as uncollectible a debt owed to USI by a partnership in which Spencer and Atkins were partners; (3) withdrew money from USI at will in lieu of salary; and (4) borrowed money from USI without paying interest. This evidence is sufficient to create a question of fact about whether the corporate veil should be pierced. See Abbott Foods of Ga. v. Elberton Poultry Co., 173 Ga. App. 672 (2) (327 SE2d 751) (1985). Contrary to Spencer’s assertion, his compliance with some corporate formalities does not preclude a piercing of the corporate veil. See Custom Lighting &c. v. Hampshire Co., 204 Ga. App. 293 (2) (418 SE2d 811) (1992). Moreover, we note that to the extent a jury finds Spencer was actively involved in tortious conduct while acting on behalf of USI, he would be personally liable for that conduct anyway. See DCA Architects v. American Bldg. Consultants, 203 Ga. App. 598 (2), supra. Accordingly, summary judgment for Spencer was properly denied.

Decided July 10, 1995

Reconsideration denied July 25, 1995

Chambers, Mabry, McClelland & Brooks, E. Speer Mabry III, Edwin L. Hamilton, R. Michael Malcom, for Unified Services.

Troutman Sanders, Thomas E. Campbell, Daniel S. Reinhardt, for Home Insurance Company.

King & Carragher, Kevin S. King, Joseph R. Carragher, for Spencer.

Judgment affirmed in Case Nos. A95A0813 and A95A0815. Judgment reversed in Case No. A95A0814.

Beasley, C. J., and Ruffin, J., concur.

       The trial court held this statute was not intended to create a private cause of action, but this does not render the statute irrelevant to an evaluation of the broker/agent’s duties. Cf. Bank of Spalding County v. Pound, 213 Ga. App. 324 (2) (444 SE2d 375) (1994) (court relies on OCGA § 33-23-35 (b) in holding that bank cannot use premium payments in broker/ agent’s account to offset broker/agent’s debt to bank).

        Morris v. National Western Life Ins. Co., 208 Ga. App. 443 (2) (430 SE2d 813) (1993) and Faircloth v. A. L. Williams & Assocs., 206 Ga. App. 764 (1) (426 SE2d 601) (1992), actions brought by insurance salesmen to recover commissions allegedly owed them by insurance companies, are distinguishable since they do not fit this paradigm. Unlike the situation in this case, the clients in those cases did not pay the insurer for the purpose of having the insurer pay the salesman his commission; no portion of the payment was specifically designated for this purpose. Thus, the insurer’s obligation to pay the commissions was based solely on contract and its breach could not give rise to a conversion action. Moreover, the unpaid commissions in Morris and Faircloth were less specific and identifiable than the unremitted premiums here, and thus were probably not a proper subject for a conversion claim for this reason as well. See Division 4 (c).


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A95A1228.
    AUSTIN v. THE STATE.
    (460 SE2d 310)
   Birdsong, Presiding Judge.

Following a trial by jury, Donald Austin was convicted of one count of simple battery, in violation of OCGA § 16-5-23.

The victim, Mr. Lambros, was an acquaintance of the appellant. Appellant Austin and Lambros each owned and operated appliance stores. If either was low in inventory, he would customarily acquire stock from the other at wholesale cost. On one occasion appellant acquired from Lambros three stoves, valued at approximately $899. One of appellant’s employees delivered a blank check to Lambros to be used in paying for the stoves. Lambros filled in the check for $8,726 rather than $899. Austin became aware of what had happened when he noticed his checks were not clearing the bank. He confronted Lam-bros, who said: “I got the money and you’ve got to do something legal to get it.” At that point appellant struck Lambros. Held:

1. In his second enumeration appellant asserts the trial court erroneously failed to charge the jury that the State had the burden to prove the absence of the elements of his justification defense.

It was held in Nelson v. State, 213 Ga. App. 641, 643 (3) (445 SE2d 543): “The court’s charge informed the jury about the presumption of defendant’s innocence, the State’s burden to prove every material allegation of the indictment and every element of the crime charged beyond a reasonable doubt, and that the burden never shifted to the defendant to prove his innocence. [Cit.] ‘Nowhere in the charge was the jury informed that when the affirmative defense of justification is raised by a defendant, the state has the burden of proving the absence of the elements of that affirmative defense.’ ” Nelson’s conviction was reversed. In this case the trial court similarly failed to inform the jury.

2. Appellant contends the trial court did not properly charge the jury that the State has the burden to disprove an affirmative defense beyond a reasonable doubt. The trial court gave the following instruction to the jury: “Once the issue of an affirmative defense has been raised, the burden of proof is on the State to disprove it to the extent required by law.” (Emphasis supplied.) More accurately, “[w]here a defendant raises an affirmative defense [of justification] and testifies to the same, the burden is on the State to disprove the defense beyond a reasonable doubt.” State v. Royal, 247 Ga. 309, 310 (1) (275 SE2d 646).

After reviewing the court’s charge we conclude the trial court misinformed the jury as to the correct burden of proof required for defendant’s affirmative defense. A charge that merely informs a jury that the State has the burden of proof to the extent required by law is meaningless to the jury in the absence of a further charge defining what the law requires; and all charging errors are presumed to be harmful unless the record shows the error to be harmless. Foskey v. Foskey, 257 Ga. 736, 737 (2) (363 SE2d 547). We cannot say after review of the record that the error was harmless in the facts of this case.

Therefore, Austin’s conviction must be reversed based on the errors committed in Divisions 1 and 2. In view of this disposition we need not address appellant’s other enumerations of error.

Judgment reversed.

Johnson and Smith, JJ., concur.

Decided July 25, 1995.

William 0. Cox, for appellant.

Spencer Lawton, Jr., District Attorney, Ian R. Heap, Jr., Assistant District Attorney, for appellee.


text:
    A95A1238.
    OGLES v. THE STATE.
    (460 SE2d 866)
   Birdsong, Presiding Judge.

Charles R. Ogles appeals his conviction of child molestation and statutory rape, and his sentence. He enumerates four errors, including the general grounds, a charging error, and ambiguity of the sentence. We affirm. Held:

1. Appellant contends in enumeration of error no. 4 the trial court erred in failing to give his requested charge on corroborative evidence to the effect that no conviction of statutory rape shall be had on the unsupported testimony of the child victim. OCGA § 16-6-3 (a). Enumeration of error no. 4 is without merit for three separate reasons:

(a) First, the record does not contain a copy of the requested charge; therefore, the requested charge is not available to this court for timely review. Mere statements of facts unsupported by the record cannot be considered on appellate review (Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (1) (366 SE2d 223)); appellant’s attempt to recite the charge verbatim in his brief does not cure this deficiency (compare Williams v. State, 193 Ga. App. 677, 678 (388 SE2d 893)). It was essential to the review of this enumeration that we have timely access, either in the record or transcript, to appellant’s written request for charge. “When a portion of the record is not before this court which is necessary for our determination of one or more of the appellate issues raised, an affirmance as to those issues must result.” Atlanta Cas. Ins. Co. v. Crews, 197 Ga. App. 48, 51 (3) (397 SE2d 466); compare Jackson v. State, 213 Ga. App. 170, 171 (2) (a) (444 SE2d 126).

(b) Assuming the accuracy of the requested charge as recited in appellant’s brief, error still is not established by appellant. “ ‘If any portion of the request is inapt, incorrect, or not authorized by the evidence, denial of the request [to charge] is proper.’ [Cit.] And the trial court does not err when it refuses to give a confusing or misleading instruction.” Jones v. State, 200 Ga. App. 519, 521 (2) (c) (408 SE2d 823). The charge request recited in appellant’s brief is misleading in two respects. First, the requested charge describes corroborative evidence in terms of acts or admissions. Statements can constitute corroborative evidence (compare Legg v. State, 207 Ga. App. 399, 400 (2) (428 SE2d 87) (defendant’s taped admissions constituted sufficient corroboration of victim’s testimony)). Thus, a child-victim’s prior consistent statements, as recounted by third parties to whom such statements were made, can constitute “sufficient substantive evidence of corroboration” in a statutory rape case. Long v. State, 189 Ga. App. 131, 132 (1) (375 SE2d 274). A fair risk exists that the requested charge, as recounted in the brief, could mislead the jury to believe that mere statements could not constitute corroborating evidence. Even more misleading, is the unconditional statement in the alleged requested charge that “the evidence supporting that of the female must be testimony other than that of her own, as to the commission of the offense by the accused.” A fair risk exists from the wording of this charge that a jury could erroneously believe that the recounting of prior statements of the victim by third parties would not constitute corroborative evidence as the source of these statements was directly traceable to the victim. See generally Long, supra.

(c) Additionally, assuming the accuracy of the recounted request to charge, it is inapt, being not adequately tailored to the evidence, as it fails adequately to instruct the jury regarding statements made by the victim as to third parties. “ ‘In order for a refusal to charge to be error, the request [ ] must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge.’ ” Kelly v. Scheldt, 209 Ga. App. 357 (433 SE2d 370). Compare the corroborating charge given by the trial court that was tailored to inform the jury: “A victim’s prior consistent statements as recounted by third persons may be sufficient evidence of corroboration,” and that the sufficiency of this supporting evidence is solely for the jury to determine.

2. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Further, the proper appellate test is the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), whether the challenge arises from the denial of a motion for directed verdict or of a motion for new trial, when the claim of error is grounded on an alleged insufficiency of the evidence. Wright v. State, 211 Ga. App. 474 (1) (440 SE2d 27). Regarding appellant’s conviction of child molestation and statutory rape, there is no reversible error of law (see Division 1 above). Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which convicted. Jackson v. Virginia, supra. Appellant’s enumerations of error 1 through 3, on the general grounds, are without merit.

3. Appellant contends the adjudged sentence is ambiguous, because the sentences for the two counts are to run concurrently, with one sentence being 20 years to serve, and the other sentence being 20 years with 10 years to serve and the balance on probation, and appellant paying a $5,000 fine at the termination of the probation period. “In determining whether a sentence is ambiguous this court may consider the entire record, including any announcement or explanation of sentence contained in the trial transcript.” Grant, supra at 464 (2).

Appellant specifically asserts that the sentence is ambiguous because it provides for probation as to the child molestation offense after ten years of confinement and that probation would commence as to this offense while appellant was still serving his twenty-year sentence to confinement for statutory rape; appellant also contends “that sentence appears to be for thirty (30) years followed by ten (10) years of probation.” Thus, the ambiguity appellant actually complains of is that the sentences imposed for the two offenses appear to have been intended to run consecutively, although the trial court has even reaffirmed that the sentences for each count are to run concurrently by amending the final disposition form in this case.

The State contends the sentence is not ambiguous because the trial judge was merely accepting the present reality of the penal system that appellant “may be released on parole before serving even a small fraction of the stated sentence”; and the trial court merely intended to provide for this likely event “by a sentence to probation which would control this offender and protect this victim of tender years should appellant be summarily released at an early date.”

Assuming without deciding an ambiguity had occurred, the vacating of the sentence, either in its entirety or partially as to Count 2 (child molestation only), is not the appropriate remedy. It is well settled that any doubt as to the effect of a sentence will be resolved so as to give the defendant the benefit of the doubt. Grant, supra at 464 (2). The benefit of the doubt to be given appellant for the particular ambiguity asserted by him on appeal is to construe the sentences for each count to run concurrently rather than consecutively. While it is true that if appellant remains in prison for 20 years, he will reap a windfall by having his probation period expire before his release from confinement; in the event he is subject to early release on parole, appellant can fulfill the terms of his probation (or the remaining part thereof) as envisioned by the trial court. While we find this sentence somewhat innovative and unusual, we find no authority declaring it illegal. As a general statutory rule, “[t]he judge imposing the sentence is granted power and authority to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper.” OCGA § 17-10-1 (a) (1); see also OCGA § 15-6-8 (6). It is to appellant’s benefit to have the sentence interpreted as running concurrently rather than consecutively. See also OCGA § 17-10-10.

Decided July 25, 1995.

W. Dan Roberts, for appellant.

Fredic D. Bright, District Attorney, Vanessa Flournoy, Assistant District Attorney, for appellee.

Additionally, appellant has enumerated an error predicated on a claim that the sentence itself is erroneous, and has not enumerated a legal error in a matter of trial procedure that occurred in the pronouncement of sentence. The sentence imposed was within the statutory limits for the two offenses committed. This court will not review for legal error any sentence which is within the statutory limits. Tommie v. State, 158 Ga. App. 216 (1) (279 SE2d 510); compare Sinkfield v. State, 262 Ga. 239 (1) (416 SE2d 288). Thus, assuming a legal error had occurred merely calling into question the excessiveness of the sentence, such claim would not be reviewable by this court. Id.

Judgment affirmed.

Johnson and Smith, JJ., concur.


author: Ruffin, Judge.

text:
    A95A0042, A95A0043.
    BEVERAGE MANAGEMENT SOLUTIONS, INC. v. YANKEE SPIRITS, INC.; and vice versa.
    (460 SE2d 564)
   Ruffin, Judge.

Beverage Management Solutions, Inc. (“BMS”) sued Yankee Spirits, Inc. (“Yankee Spirits”) for breach of contract in connection with the sale of a computerized beverage management system to Yankee Spirits. After a bench trial, the trial court entered judgment in favor of BMS and awarded it lost profits. In Case No. A95A0042, BMS appeals the trial court’s denial of attorney fees, pre-judgment interest and litigation costs. In Case No. A95A0043, Yankee Spirits appeals the judgment on the merits. We will first consider Yankee Spirits’ appeal.

1. Yankee Spirits, a Massachusetts corporation, contends the trial court erred in failing to dismiss the complaint for lack of personal jurisdiction.

The evidence shows that in August 1991, Walter Lee, president of Computer Source, Inc. (“CSI”), a Macon, Georgia corporation, demonstrated his beverage management system in Worcester, Massachusetts for Yankee Spirits’ representatives. Yankee Spirits was a large volume liquor retailer in Massachusetts interested in enhancing its current system. The demonstration was arranged by an IBM representative in Massachusetts who was working with CSI. Shortly thereafter, a CSI salesman traveled to Yankee Spirits’ offices with a proposal for the sale, installation and service of a system at a cost of $232,925. Yankee Spirits found the proposal too expensive and rejected it. Lee then modified the proposal, reducing the cost to $146,951 and telephoned Yankee Spirits with the new offer. Yankee Spirits orally agreed to the modified proposal. CSI then mailed a written purchase agreement to Yankee Spirits which was signed in Massachusetts and returned to Georgia for Lee’s signature. The agreement contained the following provision: “Any and all claims which Buyer may now or hereafter have against Seller, for whatever cause and whether in contract, tort or otherwise, shall be forever barred unless filed in a court of competent jurisdiction in Bibb County, Georgia, U.S.A. within two (2) years after the occurrence of said default, or in the event such default is not discovered by the injured party when it has occurred, more than two (2) years after such default could, in the exercise of due diligence, have been discovered by such party, and Buyer hereby consents to the jurisdiction and venue of such courts. In the event of any such action, Buyer agrees that service of process may be completed by registered or certified mail.”

Over the next several months, in preparation for the installation of the system, Yankee Spirits began sending its product data base and information regarding its current inventory data to Georgia for conversion into the new system. Communications between the companies over the telephone, by fax and by mail revealed that the system would require significant modification in order to meet Yankee Spirits’ needs.

In December 1991, BMS purchased CSI’s assets, including the contract at issue. Yankee Spirits executed an “Acknowledgement and Acceptance of Assignment” in connection with the assignment of the agreement to BMS. The document was faxed to Massachusetts for execution, and Yankee Spirits mailed it back to BMS in Georgia. Discussions continued with BMS regarding modifications to the system. During the discussions between Yankee Spirits, CSI, and BMS, no representative of Yankee Spirits ever came to Georgia. In March 1992, because BMS proposed additional charges for the modifications and BMS could not state with certainty when the modifications could be completed, Yankee Spirits decided not to go forward with the contract.

“Georgia’s Long Arm Statute states that the courts of this State may exercise personal jurisdiction over any nonresident as if he were a resident of the State, if in person or through an agent he: ‘(1) Transacts any business within this State. . . .’ This has been interpreted to mean that ‘purposeful acts’ must have been performed by the defendant to tie it to the State, and ‘[m]ere telephone or mail contact with an out-of-state defendant, or even the defendant’s visits to this state, is insufficient to establish the purposeful activity with Georgia required by the “Long Arm” statute. [Cit.]’ [Cits.] The United States Supreme Court has held that an individual’s contract with an out-of-state party alone cannot automatically establish sufficient minimum contacts in the other party’s home forum, and that the contract is ‘ “ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction.” [Cit.] It is these factors — prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing — that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum.’ [Cit.]” Mayacamas Corp. v. Gulfstream Aerospace Corp., 190 Ga. App. 892, 893 (1) (380 SE2d 303) (1989), citing Burger King Corp. v. Rudzewicz, 471 U. S. 462, 479 (105 SC 2174, 85 LE2d 528) (1985).

Just as we held in Mayacamas, Yankee Spirits contends the facts demonstrate that “the minimum contacts sufficient to link [Yankee Spirits] with this State in order that a court might exercise personal jurisdiction over [Yankee Spirits] did not exist.” Id. at 894. We agree. In the instant case and in Mayacamas, there were out-of-state negotiations which led to the signing of an agreement. But that agreement alone is not sufficient to meet the minimum contacts requirement. Id. Nor does the mere return of the acknowledgment of assignment to Georgia by mail meet the requirement. See Wise v. State Board &c. of Architects, 247 Ga. 206 (2) (274 SE2d 544) (1981).

BMS contends that by sending computer data to Georgia, Yankee Spirits conducted “purposeful acts” sufficient to tie it to Georgia. However, those preparatory and incidental acts were “intermediate steps” toward the performance of the purchase agreement which contemplated the sale, installation and service of a system in Massachusetts. See Mayacamas, supra at 893.

BMS also contends Yankee Spirits waived any defense of personal jurisdiction, having submitted to jurisdiction in Bibb County by virtue of the provision in the purchase agreement set forth above. Although parties may waive personal jurisdiction by contract, in the provision upon which BMS relies, Yankee Spirits did not waive personal jurisdiction for causes of action filed against Yankee Spirits. Compare C & S Capital Corp. v. Sweetwater Homes, 191 Ga. App. 571 (382 SE2d 399) (1989). Rather, the provision requires Yankee Spirits to file any claim it has against BMS in Bibb County. In the context of this case, where the seller is suing the buyer, the provision is not applicable.

Based on the foregoing, we find the trial court erred in failing to dismiss for lack of personal jurisdiction.

Decided July 14, 1995

Reconsideration denied July 26, 1995

Parker, Johnson, Cook & Dunlevie, G. William Long III, Everett W. Gee III, for appellant.

Anderson, Walker & Reichert, Walter H. Bush, Jr., Travis M. Trimble, for appellee.

2. In light of our decision in Division 1, we need not address Yankee Spirits’ remaining enumerations of error or those enumerations raised by BMS in its appeal. See Mayacamas, supra at 895.

Judgment reversed in Case No. A95A0043. Appeal dismissed in Case No. A95A0042.

Beasley, C. J., and Pope, P. J., concur.


text:
    A95A0048, A95A0049.
    PEMBROKE STATE BANK et al. v. WARNELL et al.; and vice versa.
    (461 SE2d 231)
   Birdsong, Presiding Judge.

These appeals comprise ten volumes and more than 2,000 pages of record and transcripts from four days of jury trial of a motion to enforce attorneys’ settlement.

In 1987, L. 0. Benton bought 54 percent of Pembroke State Bank’s shares but still did not have control of it. Large amounts of shares are owned by sisters Carolyn Bryan and Dorothy Warnell. Miss Warnell, age 81, is an invalid; Mrs. Bryan, age 79, has her power of attorney. Their nephews, Herbert and Brooks Warnell, own fewer shares. Benton needed to purchase more than 900 shares from minority shareholders. When Benton’s offer of $3,000 per share was refused, the bank stopped paying dividends. Benton hired attorney Ben Johnson, and in 1990 the bank proposed a reverse stock split whereby minority shareholders’ shares would be bought for $2,200 per share. Four shareholders including Herbert and Brooks Warnell hired an attorney, Noel Osteen. Only those four persons signed a retainer agreement, but the agreement states that it “shall [also] apply to [these persons]: Carolyn W. Bryan [176.4 shares], Dorothy Warnell [241.6 shares], [and three others].” None of those persons signed Os-teen’s retainer.

Osteen resisted the reverse stock split and filed suit for damages, naming as plaintiffs Brooks, Herbert, and the other two family members who signed Osteen’s retainer agreement. In March 1991 Osteen and Johnson reached a settlement. Osteen then met with his “clients.” Mrs. Bryan was not present, but Osteen explained the settlement to her on the phone. All the Warnells agreed to this settlement, but Osteen did not enforce it. In March 1992 the trial court ordered Osteen to add all his “clients” as plaintiffs so the settlement could be enforced. Osteen notified Hank Haynes, who is a timber consultant and is Mrs. Bryan’s friend, and Steve Lewis, an attorney who attended meetings for her. Haynes wrote Osteen that Mrs. Bryan expected the settlement to be enforced. Instead, in January 1993 Osteen negotiated a new settlement.

In February 1993 Osteen met with the Warnells. Haynes attended for Mrs. Bryan and Miss Warnell but had no authority to agree to the new settlement for them. Osteen testified Haynes authorized the settlement. Haynes testified he did not have such authority and that he only said Mrs. Bryan indicated she would do what Brooks did. Herbert was unsure but agreed to go along with the other family members. Brooks was not present; his 40 shares would not affect the deal, but Mrs. Bryan was influenced by his feelings. Haynes, Osteen, and Johnson came up with a “special deal” for Brooks, allowing him to agree to the settlement so as to influence his aunt but then “opt out” himself six months later. In April 1993 all of Osteen’s “clients” signed the second settlement agreement except Brooks and the aunts. Herbert then withdrew his agreement. Osteen withdrew from the case.

Mrs. Bryan testified as follows: Hank Haynes went to meetings for her because she had to nurse her sister; he reported to her, but she never told him he could speak for her. She saw no need to be involved in the lawsuit and did not know of Osteen’s retainer signed by her nephews. No one had authority to hire a lawyer for her. Nobody had her power of attorney. She never considered Osteen her attorney; “he has never communicated with me except one time, and [Steve Lewis] was my attorney.” (Lewis did not testify.) The only letter she got from Osteen was one saying he was “no longer [my] attorney, [which] was quite a shock ’cause I didn’t know he was my attorney in the first place.” Osteen called her once about the first settlement; he said he could get $2,725 per share; she agreed because it was in cash and because her family could not negotiate without her. It upset her to learn Osteen “was getting $300,000 for his fee and was not giving us but $2,725 per share and he was getting all that money off of [our] stock. [And] I was . . . paying my own attorney. So I was paying twice.” The second agreement would allow Benton not to pay for seven years; she did not sign it because she did not like it.

Herbert Warnell testified he did not know the retainer agreement he signed included his aunts. He went along with the second settlement only so his family could make the deal. He changed his mind after learning Brooks and his aunts were not signing and that the family was not getting the 900 shares needed to make the deal.

Brooks Warnell testified he felt Osteen tricked him by putting his aunts’ names on his fee agreement. In 1991 he agreed to the first settlement. A year and a half passed; the family waited to get paid but heard nothing. Then they heard the court had ordered Osteen in September 1992 to enforce the first settlement. They got a transcript of those proceedings from a court reporter and when they read it, they were “floored. He was just arguing [not to enforce the first settlement]. He wasn’t arguing for us. . . . He just kind of went in with them.” Osteen proposed a deal where the family would get paid in 12 years; Osteen would get his $300,000 up front “and us not get a thing. And so we all turned it down.” Brooks did not like the second settlement. He did not like the “special deal” the lawyers arranged for him to influence his aunt.

Opposing counsel Johnson claims he never had “one iota of doubt that Mr. Osteen had anything other than complete authority” to represent and settle for Brooks and Herbert Warnell, Mrs. Bryan, and Miss Warnell.

To enforce the second settlement, in June 1993 the trial court again ordered all of Osteen’s clients to be named plaintiffs. Brooks and Herbert Warnell, Mrs. Bryan, and Miss Warnell hired new counsel and sued Benton et al. for gross mismanagement and bad faith.

The trial court held a jury trial on the issue whether these four parties are bound by the second settlement. The jury charge followed Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (308 SE2d 544) and instructed as follows: “[A]ny restriction as to the authority of a [party’s] attorney not communicated to or known by the opposing party or his counsel has no effect on the enforceability of a settlement agreement. ... If counsel has negotiated and agreed on a compromise of a case prior to trial an attempt by the parties to withdraw the attorney’s authority [is] inconsequential and without legal effect. . . . Under Georgia law an attorney of record has apparent authority to enter into an agreement on behalf of his client and the agreement is enforceable against the client. . . . The authority may be consider [ed] plenary unless it is [otherwise] communicated to the opposing parties. Therefore, from the perspective of the opposing party in the absence of knowledge of express restrictions of an attorney’s authority the . . . client will be bound by the acts of his attorney within the scope of his apparent authority. . . . Where the dispute as to an agreement is . . . between the attorney and his client . . . over the attorney’s authority and where the opposite party is ignorant of any limitation upon the attorney’s authority the client will be bound by his attorney’s actions.”

A special verdict form posed four questions: “Did attorney Noel Osteen have actual or apparent authority to represent [(1) Brooks Warnell; (2) Herbert Warnell; (3) Mrs. Bryan and Miss Warnell] . . .? (4) Did Defense counsel BEN JOHNSON know or should he have known of any limitation of this authority?”

The jury answered “yes” to all four questions. The trial court found Osteen was Herbert and Brooks WarnelPs attorney of record; that the fact that they were named plaintiffs was a sufficient basis from the perspective of opposing counsel to conclude Osteen was authorized to settle for them; and that their attempts to withdraw their consent did not limit Osteen’s authority to make the settlement. As to Mrs. Bryan and Miss Warnell, the court found Osteen was their attorney in negotiating the settlement but that opposing counsel knew Osteen was not their attorney of record in the litigation; that this cast the burden on opposing counsel to determine whether there were limits on Osteen’s authority; and that any doubt must be resolved in their favor.

In Case No. A95A0048 Benton et al. contend that since the jury found Osteen had actual or apparent authority to represent Mrs. Bryan and Miss Warnell, the trial court was required to find them bound. In Case No. A95A0049 Herbert and Brooks Warnell contend the trial court erred in enforcing the settlement against them. Held-.

1. In the first place, opposing counsel’s assertion that he had no doubt Osteen had authority to dispose of the property of these four parties is wholly self-serving. Opposing counsel was mistaken in this, and he did not ascertain the facts from the opposing parties; his client could not by virtue of his mistake acquire a superior equity over the innocent client whose attorney acted outside his actual authority. Moreover, in this case, opposing counsel had to approve the “special deal” by which one nephew would influence his aunts; this taints opposing counsel’s reliance on anything.

This costly litigation comes of too much reliance on Brumbelow as giving lawyers “apparent authority” to dispose of clients’ property. See Lord v. Money Masters, 210 Ga. App. 21 (435 SE2d 247); Addley v. Beizer, 205 Ga. App. 714 (423 SE2d 398); Lewis v. Uselton, 202 Ga. App. 875 (416 SE2d 94); Vandiver v. McFarland, 179 Ga. App. 411 (346 SE2d 854), as to all of which certiorari was denied. See Tifton Bank &c. Co. v. Knight’s Furniture Co., 215 Ga. App. 471 (452 SE2d 219). And see City of Atlanta v. Black, 265 Ga. 425 (457 SE2d 551), where the Supreme Court held “this Court has limited the application of Brumbelow."

Before Brumbelow, an attorney’s agreement to compromise “raise [d] no presumption that the attorney was authorized by his client to make such settlement” (Evans v. Atlantic Nat. Bank &c., 147 Ga. 621 (3) (95 SE 219); Addley, supra at 719-720), and an attorney who relied on a settlement without ascertaining its authority did so “at his peril.” Sonnebom & Co. v. Moore Bros., 105 Ga. 497 (1) (30 SE 947); see also Evans v. Brooke, 182 Ga. 197, 207 (184 SE 800); Davis v. First Nat. Bank of Blakely, 139 Ga. 702, 713 (78 SE 190); 30 ALR2d 944, 945; 7 AmJur2d § 156; 7A CJS § 214. A conclusion to the contrary in some cases was without foundation. See Petty v. Complete Auto Transit, 215 Ga. 66 (1) (108 SE2d 697), relying on Reece v. McCormack, 188 Ga. 665, 668 (4 SE2d 575); but see the cases relied on by Reece. The cases relied on in Brumbelow had to do with management of a case, not authority to settle. Vandiver, supra at 412; Addley, supra at 718-719.

The legislature has placed express limits on attorneys’ authority to dispose of clients’ property. “Without special authority, attorneys cannot receive anything in discharge of a client’s claim but the full amount in cash.” (Emphasis supplied.) OCGA § 15-19-6. Further, State Bar DR 7-102 (a) (9) mandates that a lawyer shall not “settle a legal proceeding or claim without obtaining proper authorization from his client.” As a matter of law, opposing counsel knew these laws. He could not assume another attorney has “plenary authority” which he knows he himself does not have. Courts cannot give attorneys “apparent” authority to do what the legislature forbids them to do “[w]ithout special authority.” Where the legislature has expressly restricted attorneys’ authority, courts may not expand that authority. City of Atlanta, supra.

2. The trial court’s first error in this case was to fashion a jury charge out of Brumbelow. This charge forced the jury to reach a contradiction in terms: that lawyers have authority to dispose of a party’s property even though they are without authority to do so. The charge was error. See Addley, supra.

3. The second error lay in posing the question whether Osteen had apparent authority to represent Mrs. Bryan and Miss Warnell. Brumbelow’s “apparent authority” statement is not pertinent to determine whether a lawyer represents a party. Whether a lawyer represents a party is a question of fact, not appearances, unless the party knowingly caused the attorney to appear as his agent in that matter. Addley, supra at 718, quoting 20/20 Vision Center v. Hudgens, 256 Ga. 129 (345 SE2d 330).

4. The question posed to the jury whether Osteen had authority to represent Brooks and Herbert Warnell was the third error. It is undisputed Osteen represented them, but this does not mean he had “plenary” authority to settle their interests in violation of OCGA § 15-19-6. A correct charge would be based on the laws of attorneys’ authority (OCGA § 15-19-5) and special agents (OCGA § 10-6-50). See also Lord, supra; Addley, supra.

5. The charge that the settlement could not be enforced if opposing counsel knew or should have known of limitations on Osteen’s authority was certainly correct, and the jury’s findings on that question required the trial court to find Brooks and the aunts were not bound by the settlement. As for Herbert, who agreed and then withdrew his consent, it seems that, like other members of his family, he struggled in a mire of conflicting interests and miscommunication, trying to do what he thought they were doing but lacking information. The entire circumstances raise such questions of conflict of interest and so taint Herbert’s agreement that it cannot be compelled.

The judgment binding Brooks and Herbert Warnell is reversed, and the judgment refusing to bind Mrs. Bryan and Miss Warnell is affirmed.

Judgment affirmed in part and reversed in part.

Johnson and Smith, JJ., concur.

On Motion for Reconsideration.

Benton et al. say we have overruled Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (308 SE2d 544), which of course we cannot do. Brumbelow merely answered questions certified by the Court of Appeals; by addendum, the Supreme Court said: “It is the function of the Court of Appeals to apply these answers to the facts as it finds them.” Id. at 677. This we have done. Although the trial court’s charge forced the jury to find Osteen had “apparent authority” of these four persons, the jury nevertheless made the settlement unenforceable by finding that attorney Johnson knew or should have known of restrictions on Osteen’s authority. We predicted in Vandiver v. McFarland, 179 Ga. App. 411, 413 (346 SE2d 854), that if told attorneys could dispose of their clients’ property without authority, the public would “recoil in horror and deny it,” and that is what we think this jury did in its findings.

Benton construes Brumbelow to say an attorney has absolute authority to dispose of his client’s property. The Georgia Supreme Court has never said an attorney is owner of his client’s property, which is what Benton suggests. Agency law does not permit an agent to create his own “apparent authority.” Addley v. Beizer, 205 Ga. App. 714, 717 (423 SE2d 398). “[A]n attorney . . . has no implied power by virtue of his general retainer to compromise and settle his client’s claim.” 30 ALR2d 944, 945; 7 AmJur2d § 156. “Where . . . there has been nothing beyond a mere employment or retainer of the attorney ... it is incumbent upon the opposing party to ascertain at his peril whether actual authority to [make a compromise] has been conferred upon the attorney. . . . [S]uch other party is charged with knowledge that agreements of compromise or settlement do not come within the implied authority of the attorney.” 7A CJS § 214 (b).

If an attorney has “apparent” authority to dispose of a client’s property, he immediately becomes his client’s adversary. The concept promotes uncertainty in legal dealings and propagates litigation. For these reasons Brumbelow is narrowly construed. Lewis v. Uselton, 202 Ga. App. 875, 878 (416 SE2d 94). Benton says a client wronged by an unauthorized settlement may sue his lawyer, but we fail to see how the necessity to sue one’s own lawyer can possibly be an advantage to the client. In Davis v. First Nat. Bank of Blakely, 139 Ga. 702, 713 (78 SE 190), the Supreme Court said that if unauthorized settlements are routinely enforced, “occasions might arise where a client’s entire property . . . might be agreed away, in spite of his protest, and he might be remitted to a suit [against his own attorney] by which nothing could be realized.” An attorney who enters an unauthorized settlement may, with equal design, make it impossible for the client to prove his loss.

Decided June 30, 1995

Reconsideration denied July 26, 1995

Glover & Davis, J. Littleton Glover, Melissa C. Cordell, for appellants.

Adams & Ellis, Tracy A. O’Connell, Ronald C. Berry, Laura J. Tromly, for appellees.

The entire problem need never arise. The lawyer has only to obtain the “special authority” required by OCGA § 15-19-6. The statement in City of Atlanta v. Black, 265 Ga. 425, 427 (457 SE2d 551), that “the authority of private sector attorneys may be considered plenary under Brumbelow” was dictum. The matter of an attorney’s authority is controlled by OCGA § 15-19-6. This was settled by Kaiser & Brother v. Hancock, 106 Ga. 217 (32 SE 123) 100 years ago and by many other cases, and the narrow language used in Brumbelow did not overrule those cases.

Motion for reconsideration denied.


text:
    A95A0099.
    KESLER v. WATTS.
    (460 SE2d 822)
   Ruffin, Judge.

Tara Kesler, legatee under the will of Byron Watts, Sr., appeals from the superior court’s order vacating a temporary restraining order and dismissing her petition for a declaratory judgment concerning the validity of an in terrorem clause in the will. The court ruled that Kesler was not an interested party and her complaint did not present a justiciable controversy. Kesler appealed to the Supreme Court which transferred the case to this court. Because we believe Kesler was not entitled to the injunctive relief requested, but was nonetheless an interested party presenting a justiciable controversy, we affirm in part and reverse in part.

Watts died with a will giving Kesler, his granddaughter, a portion of his estate and naming appellee, Delores Watts, as executrix. The will contained an in terrorem clause providing that “[i]f any beneficiary under this Will contests this Will in any manner, such beneficiary or beneficiaries shall forfeit any right to receive any property under this Will and will not receive any devise, bequests or legacy specified herein.” After Delores Watts filed a petition to probate the will, Kesler filed a complaint in superior court for declaratory and injunctive relief. In her complaint, Kesler stated she had potential challenges to the validity of the will and asked the court to declare the in terrorem clause invalid. Kesler further requested that the court issue “a temporary restraining order enjoining the Probate Court of Laurens County, Georgia, from making any determination or entering any substantive order as to the Solemn Form probate proceeding pending before said Court.” The superior court issued the requested temporary restraining order and further ordered Delores Watts to appear and show cause why the court should not issue an interlocutory and permanent injunction.

After an evidentiary hearing on the matter, the superior court issued an order stating its findings that Kesler was not an interested party under OCGA § 9-4-2, and that she did not present a justiciable controversy. The court accordingly vacated the temporary restraining order and dismissed Kesler’s complaint. Immediately after the court issued its order, Delores Watts obtained an order from the probate court probating the will. Kesler appeals from the superior court’s order.

1. Kesler contends the superior court erred in vacating the temporary restraining order and in failing to issue an interlocutory injunction. While a superior court generally has the power to issue injunctions, this power does not extend so far as to allow it to enjoin a judge in the exercise of his judicial functions. Breeden v. Breeden, 202 Ga. 740 (1) (44 SE2d 667) (1947). Such an injunction, to the extent that it is ordered by a superior court, can only be directed to the parties before the court. Id. Accordingly, the superior court in this case did not have authority to issue an injunction restraining the probate court from taking further action. Since the superior court was without authority to enjoin the probate court, it was not error for the superior court judge to vacate such an order, or to refuse to issue an interlocutory injunction to that effect.

2. However, as a legatee under Watts’s will, Kesler is entitled to a declaration concerning the validity of the in terrorem clause. OCGA § 9-4-4 (a) (3) provides in pertinent part that “any person interested as . . . [a] legatee . . . may have a declaration of rights or legal relations in respect thereto and a declaratory judgment . . . [t]o determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.” This statute is to be liberally construed and administered so as to “afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations. . . .” OCGA § 9-4-1.

Decided July 11, 1995

Reconsiderations denied July 26, 1995

Nelson, Gillis & Smith, James F. Nelson, Jr., J. Stanley Smith, Jr., for appellant.

Larsen & West, W. Washington Larsen, Jr., Carl K. Nelson, Jr., for appellee.

The trial court found, and Delores Watts contends, that Kesler had nothing to gain by obtaining a declaration concerning the validity of the in terrorem clause. We disagree. As a legatee, Kesler stands to inherit a portion of Watts’s estate. If the in terrorem clause is valid and Kesler contests the will in any manner, she will forfeit her right to receive any property under the will. On the other hand, if the in terrorem clause is declared invalid, Kesler can challenge the will in any manner without risk of forfeiting her interest in Watts’s estate under the in terrorem clause. We will not speculate, as the trial court has, that Kesler seeks to invalidate the entire will; that such a challenge would result in her losing her devise; that under these circumstances she would lose any inheritance because she was not named in an earlier will and is not an heir at law; and that under such a scenario she has nothing to gain by a declaration that the in terrorem clause is invalid. It is enough that Kesler wants to challenge Watts’s will and is faced with insecurity and uncertainty concerning her rights. This is unquestionably a justiciable controversy. Cohen v. Reisman, 203 Ga. 684, 685 (3) (48 SE2d 113) (1948). Accordingly, we reverse on this issue and remand for a declaration on the validity of the in terrorem clause.

Judgment affirmed in part, reversed in part and remanded.

Beasley, C. J., and Pope, P. J., concur.


author: Beasley, Chief Judge. Pope, Presiding Judge,

text:
    A95A0266, A95A0267.
    WILLIAMS et al. v. MEMORIAL MEDICAL CENTER, INC.; and vice versa.
    (460 SE2d 558)
   Beasley, Chief Judge.

Annlyn and James Williams instituted this action claiming the wrongful death of their son Trent. The primary issue was whether medical malpractice by hospital personnel occurred and caused the death. OCGA § 51-1-27.

The child was born about eight weeks prematurely at Memorial Medical Center and was not discharged until he was four months old. Seven weeks later, he contracted pneumonia and was admitted to Memorial and treated for about one week. After one week at home, he was readmitted to the pediatric intensive care unit and treated for residual pneumonia. It is during this latter visit that the alleged malpractice occurred.

Plaintiffs maintain that after the infant was readmitted, a ventilator was inserted in his throat to aid respiration but became dislodged; that personnel of Memorial failed to adhere to the standard of care required in the medical profession generally, under the circumstances, by not employing appropriate and timely resuscitative efforts to reintubate him; and that as a result, he suffered severe brain damage and died 11 months later.

Plaintiffs originally named Memorial and Dr. Ferrer as defendants. Upon learning that Ferrer had been an employee of Memorial but had left the United States and had died, they filed an amended complaint naming Memorial as the sole defendant. The trial proceeded on a renewed action after plaintiffs voluntarily dismissed the first action without prejudice pursuant to OCGA § 9-11-41 (a).

In Case No. A95A0266, plaintiffs appeal the final judgment entered on a jury verdict in favor of Memorial. In Case No. A95A0267, Memorial cross-appeals the denial of its motion for summary judgment.

1. Plaintiffs contend that the court erred in granting Memorial’s motion in limine, refusing to allow them to introduce evidence that Ferrer failed his pediatric board examination. They also contend that the court erred in preventing them from showing that Ferrer had dropped out of his pediatric residency program. Both matters related to Ferrer’s professional qualifications.

In granting the motion, the court ruled that plaintiffs could show that Ferrer was not board certified but could not show that he failed the board examination. The court repeated the ruling at trial, when plaintiffs argued that they should be allowed to show the failure because Memorial’s attorney had falsely stated during her opening remarks that Ferrer had successfully completed his residency program. These are two different subjects.

Although the court did prevent plaintiffs from showing that Ferrer failed to pass his board examination, this was not error. “A physician’s inability to pass certification and licensure examinations does not make probable his negligent performance of a specific procedure. [Cits.]” Beis v. Dias, 859 SW2d 835, 839 (6) (Mo. Ct. App. 1993). Such evidence has little if any relevance to the issue of whether the physician complied with the standard of care required in his treatment in a given case. Douglas v. University Hosp., 150 F.R.D. 165, 171 (10) (E. D. Mo. 1993), aff’d, 34 F3d 1070 (8th Cir. 1994). That is the issue in a medical malpractice case, OCGA § 51-1-27, as explained in Hayes v. Brown, 108 Ga. App. 360, 363 (1) (133 SE2d 102) (1963).

The trial court allowed plaintiffs to show that Ferrer was not board certified, notwithstanding the fact that plaintiffs’ own expert testified that the applicable standard of care did not require that he be board certified to staff the pediatric intensive care unit and serve as the unit’s first on-call physician. We find no abuse of discretion in the court’s refusal to allow evidence that Dr. Ferrer took but did not pass the board examination. OCGA § 24-2-2; Sommers v. Friedman, 493 NW2d 393, 398 (2) (Wis. Ct. App. 1992).

As to the residency program, the record does not support plaintiffs’ assertion that the court prevented them from showing that Ferrer did not finish it. The court ruled they could show it, to impeach the testimony of his supervising physician that Ferrer did complete his pediatric residency in Texas. Plaintiffs simply offered no evidence to the contrary, so OCGA § 24-9-82 was not violated.

Defendant later showed that Ferrer was not board certified nor did he claim to be, but that he was a skilled pediatric physician and competent intubator.

2. Plaintiffs contend that the court improperly allowed Memorial to introduce in evidence the discharge summary of the child’s initial four-month hospitalization at Memorial following his birth, because it contained diagnostic opinions. They argue that such evidence exceeds the bounds of OCGA § 24-3-4. Dunn v. McIntyre, 146 Ga. App. 362, 363 (2) (246 SE2d 398) (1978), sets out the rationale for not encompassing such statements. The court allowed Memorial to admit the entire document in evidence, for the reason that these diagnoses had been discussed in detail by plaintiffs’ own witnesses during cross-examination and by other witnesses without objection by plaintiffs. By introducing the subject, plaintiffs waived the objection. David Shapiro & Co. v. Timber Specialties, 141 Ga. App. 354, 355 (1) (233 SE2d 439) (1977). In so ruling, we do not reach the question of the summary’s admissibility in this instance or the question of harm.

3. Plaintiffs contend that testimony by one of Memorial’s administrators, stating the names of local physicians who had completed residency training programs at Memorial, was irrelevant and inadmissible hearsay.

The trial involved the issue of whether Memorial was qualified to treat the child. In that regard, we cannot say that this evidence did not have at least slight probative value, in that it “rendered] the desired inference more probable than it would be without the evidence.” Southern R. Co. v. Lawson, 256 Ga. 798, 802 (4) (353 SE2d 491) (1987). Consequently, the court did not abuse its discretion in admitting it as relevant. OCGA § 24-2-1. Adams v. Wright, 162 Ga. App. 550, 553 (6) (293 SE2d 446) (1982); see Kolb v. Holmes, 207 Ga. App. 184, 185 (2) (427 SE2d 562) (1993).

As to the second objection, that the evidence was hearsay, it was not made at trial. To be preserved for appellate review, the ground of the objection must be raised and ruled on at trial. Dietz v. Becker, 209 Ga. App. 678, 679 (3) (434 SE2d 103) (1993). Moreover, testimony is considered hearsay only if the witness is testifying to another party’s statement in order to prove or demonstrate the truth of the matter asserted in that statement. OCGA § 24-3-1. Hurston v. State, 194 Ga. App. 226 (390 SE2d 119) (1990). The administrator, who had been at Memorial since 1976, was testifying from his personal knowledge of local doctors who had trained at Memorial.

4. Plaintiffs contend that the court erred in refusing to give a curative instruction after defense counsel made an improper closing argument.

The trial court refused to consider plaintiffs’ objection on the ground that it was not made until after defense counsel had finished his closing argument and was therefore untimely. To the contrary, plaintiffs’ objection made during trial was timely. See Verde v. Granary Enterprises, 178 Ga. App. 773, 774 (5) (345 SE2d 56) (1986). Nevertheless, we find no harmful error.

In his closing argument, defense counsel stated he was asking for a complete defense verdict rather than a compromise “[b]ecause there isn’t any negligence in the case, and if hospitals are going to be hit with big jury awards because bad things happen within their walls and people do not do well, because there is an extraordinary and significant crisis, and juries just decide, well, you know, let’s just do something nice, the whole system’s going to break down.”

This argument crosses the boundary between proper and improper argument, as there is no evidence in the record about the system breaking down, and the argument is clearly designed to appeal to the jurors’ fears and prejudices. “ ‘ “What the law forbids is the introduction into a case by way of argument of facts which are not in the record and are calculated to prejudice a party and render the trial unfair. . . .” (Cit.) . . .’ [Cit.]” Perry v. State, 191 Ga. App. 589, 591 (2) (382 SE2d 402) (1989).

A review of the context and nature of the argument in this case precludes a conclusion that it contributed to the verdict. Defense counsel acknowledged that the jury could award damages if they found the doctor was negligent; it was only if they found no negligence, but were tempted to award damages anyway, that his argument — that an award where there has been no negligence would break the system — would come into play. Thus, while the argument was improper and should have elicited a rebuke and instruction from the court, see OCGA § 9-10-185, it does not provide the basis for a new trial.

Decided July 12, 1995

Reconsideration denied July 26, 1995

Joseph B. Bergen, Frederick S. Bergen, for appellants.

Alston & Bird, Judson Graves, Holly H. B. Barnett, for appellee.

5. The cross-appeal is dismissed as moot.

Judgment affirmed in Case No. A95A0266. Appeal dismissed in Case No. A95A0267.

Ruffin, J., concurs. Pope, P. J., concurs specially.

Pope, Presiding Judge,

concurring specially.

I disagree with some of the majority’s analysis in Division 1, but nonetheless concur with its decision to affirm.

I agree that the trial court’s initial ruling that Dr. Ferrer’s failure of his board examination was inadmissible was proper. See, e.g., Sommers v. Friedman, 493 NW2d 393 (Wis. Ct. App. 1992). This evidence was essentially “bad character” evidence which, if logically relevant to what happened during the incident in question at all, was more prejudicial than probative. See OCGA § 24-2-2. And since this was the only time plaintiffs elicited a ruling on the question, we cannot conclude that the trial court erred.

But I think it important to note that once defendant started eliciting testimony about what a generally good doctor Dr. Ferrer was and what a generally good hospital defendant was, it opened the door for plaintiffs’ evidence of Dr. Ferrer’s failure of his board examination. Plaintiffs did not try to introduce this evidence again, however, and thus deprived the trial court of the opportunity to consider this question.


author: McMurray, Presiding Judge. Andrews, Judge,

text:
    A95A0292.
    A95A0293.
    LITTLE RAPIDS CORPORATION v. McCAMY. PHYSICIAN SALES & SERVICE, INC. v. McCAMY.
    (460 SE2d 800)
   McMurray, Presiding Judge.

Plaintiff Virgil Mark McCamy brought this tort action against defendant Little Rapids Corporation d/b/a Graham Medical Products (“Little Rapids”) and defendant Physician Sales & Service, Inc. (“Physican Sales”), alleging that Little Rapids, at its facility in Holyoke, Massachusetts, “negligently loaded the truck [plaintiff was driving with medical supplies] so as to cause [the truck] to be crammed or the pallets therein to be improperly stacked.” Plaintiff’s ultimate destination was the location of defendant Physician Sales in Marietta, Georgia. While unloading plaintiff’s truck, agents and employees of Physician Sales “negligently operated a forklift so as to cause certain medical supplies to fall on the Plaintiff causing him injury.”

The case was tried before a jury, which found for the plaintiff. Viewed in the light most favorable to that verdict, the evidence showed that plaintiff was employed as a long-distance trucker, “dispatched mainly to the eastern seaboard and provinces of Quebec and [Ontario].” On July 2, 1991, he was dispatched to Little Rapids’ facility in Holyoke, Massachusetts, to pick up a load of disposable medical products, such as examination capes, gowns, and table rolls for doctors’ offices. “[T]his was the first time that [he had ever gone] up there[.]” Plaintiff slept “while [employees of Little Rapids] loaded the truek[.]” The truck was “already completely loaded when they woke [plaintiff] up[.]” The truck was “pretty full[;. . . there was just barely enough room for [plaintiff] to get [his] locks and stuff in there.” Inside the trailer, cardboard dividers, reaching “from top to bottom,” separated the loads designated for different stops. Plaintiff left Little Rapids’ Holyoke, Massachusetts facility and drove without incident to West Columbia, South Carolina, to another stop in Atlanta, Georgia, and then on to Physican Sales’ facility in Marietta, Georgia. There, plaintiff was to deliver seven pallets of medical supplies. He volunteered to help the Physician Sales’ employees unload the truck, to “make sure the count was alright.”

Edward F. Sophranowitz, a supervisor and group leader in Little Rapids’ shipping department, explained that shipments of medical supplies were stacked on pallets and then bound by shrink wrap, i.e., the supplies were horizontally wrapped completely around in plastic wrap by placing the pallet on a turntable. The plastic wrap tightly binds the supplies in a stack. However, Little Rapids would only shrink wrap up to a height of “ninety inches or less, because that’s the maximum height ... of [its] warehouse door[.]” Consequently, Little Rapids “can’t shrink wrap to the top” of a loaded pallet. Little Rapids’ employees would place loose loads of “the light stuff to top off [the shrink wrapped load, such as] examination capes and gowns.” This was Little Rapids’ “standard procedure in every truck.” The loading order for plaintiff’s deliveries reflects that “on the top of the load delivered to Marietta, Georgia was 20 cases of hand towels.”

Plaintiff understood the purpose of shrink wrapping was “to secure the load and keep it from shifting. . . .” However, this particular load “wasn’t shrink wrapped all the way up.” Plaintiff did not know this when he left Holyoke, Massachusetts, because of the divider that “went all the way from the bottom to the top.” When he arrived at his stop in Marietta, Georgia, the truck “was a mess. . . . We took the divider down and then we seen [sic] what it was. Some of it — was not shrink wrapped. One of them had fell [sic] over. It was just the way they crammed it into the nose of the trailer and that’s all they did.” Plaintiff told the two Physician Sales employees, Anthony Eugene Coleman and Kenny Strom, “to be careful . . .’’as they unloaded the truck. He “thought it was an unsafe load . . . [because it] was not shrink wrapped completely.” On top of the shrink wrapped portion “were a couple of layers of boxes.” These boxes came “[w]ithin three inches . . .’’of the trailer ceiling. Physician Sales employees unloaded six stacks without incident. However, with the final stack, the Physician Sales employee, Anthony Coleman, “knew he only had three inches [clearance]. . . .” Plaintiff stepped into the trailer and behind Anthony Coleman to pick up some loose “[r]olls of paper [that] fell off,” taking care to remain “far enough back to make sure ...” nothing further would fall on him. While plaintiff was carrying the box of paper rolls, Coleman stopped in front of him at the edge of the trailer by the loading dock. Plaintiff also “stopped to see what the problem was.” He had just bent over and set the box down when Anthony Coleman started pulling the last stack over the lip and out the trailer door. The “top layer of boxes hit the edge of the door and some fell off.” Plaintiff was approximately four-and-one-half feet away when “the load started falling on [him]. It hit [him] in the head, shoulder and mouth. ...” There were four or five boxes atop the stack, each box weighing, in plaintiff’s estimation, “about thirty-five to forty pounds. . . .” Anthony Coleman “never considered [whether he could knock loose boxes from the top of a shrink wrapped pallet with only three inches clearance if he caught the lip of the trailer,] because it had never happened before. [He had] never run into [any]thing before.” Anthony Coleman raised the height of the pallet by jacking the hand-operated forklift before attempting to exit the trailer.

Pursuant to a special verdict, the jury awarded plaintiff $200,000 against Physician Sales and $100,000 against Little Rapids. In Case No. A95A0292, Little Rapids appeals from the judgment entered by the trial court against it, and in Case No. A95A0293, Physician Sales appeals from the judgment entered against it. The two cases are hereby consolidated for disposition on appeal. Held-.

Case No. A95A0292

1. Little Rapids enumerates the denial of its motion for directed verdict, arguing first that “the undisputed facts clearly establish that plaintiff assumed the risk of injury, thereby barring plaintiff from recovery against the defendant.” Specifically, Little Rapids argues that defendant’s admissions establish that plaintiff “knew that there were loose boxes on top of the [last] pallet[. . . which] could possibly fall on him[, . . . yet] he walked within a distance so close to the stack that he was struck by the falling boxes.”

“ ‘The doctrine of the assumption of the risk of danger applies only where the plaintiff, with a full appreciation of the danger involved and without restriction from his freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law he has assumed all risk of injury. (Cit.)’ [(Emphasis omitted.)] Myers v. Boleman, 151 Ga. App. 506, 509 (3) (260 SE2d 359).” Girone v. City of Winder, 215 Ga. App. 822, 824 (2), 825 (452 SE2d 794). “ ‘ “In its simplest and primary sense, assumption of risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.” Prosser, Law of Torts (4th ed.) p. 440. . . .’ Osburn v. Pilgrim, 246 Ga. 688, 695 (273 SE2d 118) (1980).” Stallings v. Cuttino, 205 Ga. App. 581 (1), 582 (422 SE2d 921). “However, ‘(i)t is not true that in any case where the plaintiff voluntarily encounters a known danger he necessarily consents to any future negligence of the defendant. A pedestrian who walks across the street in the middle of a block, through a stream of traffic travelling at excessive speed, cannot by any stretch of the imagination be found to consent that the drivers shall not use care to watch for him and avoid running him down. On the contrary, he is insisting that they shall. This is contributory negligence pure and simple; it is not assumption of risk. . . . (T)he plaintiff has exposed himself to the risk of future harm, but he has not consented to relieve the defendant of any future duty to act with reasonable care. . . .’ Prosser & Keeton, The Law of Torts, § 68, p. 485 (5th ed. 1984).” Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 823 (4) (409 SE2d 524). Significantly, “the rule does not extend to assuming the risk of the negligent act of another. Thomas v. Shaw, 217 Ga. 688 [(1)] (124 SE2d 396).” Owens-Illinois, Inc. v. Bryson, 138 Ga. App. 78, 79 (225 SE2d 475).

In the case sub judice, undisputed evidence that plaintiff knew of the type of harm posed by the loose boxes on top of the secure load does not demand a finding that plaintiff consented in advance to relieve defendant Little Rapids of liability for any injuries subsequently sustained while plaintiff bent over and set the box down, in order to see why Mr. Coleman had stopped and then moved again without warning. Plaintiff’s proximity to this foreseeable hazard may be evidence of contributory or comparative negligence on the part of plaintiff but it is not an assumption of the risk. Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 823 (4), supra. Compare Tennison v. Lowndes-Echols Assn. for Retarded Citizens, 209 Ga. App. 343, 344 (433 SE2d 344), where the plaintiff in that case knew of the precise risk involved and yet “voluntarily climbed on top of [a] pallet of lumber [in an attempt to unload it,] knowing that the forklift was too small[, could become unbalanced and would overturn if the load of lumber shifted].” “The facts here do not measure up to a classic case of assumption of the risk such as trying to beat a rapidly approaching train across the crossing or participating in a drag race. See in this connection Yandle v. Alexander, 116 Ga. App. 165, 167 (156 SE2d 504).” Kitchens v. Winter Co. Builders, 161 Ga. App. 701 (1), 703 (289 SE2d 807). The trial court did not err in denying Little Rapids’ motion for directed verdict on the ground that plaintiff assumed the risk as a matter of law. OCGA § 9-11-50 (a).

2. Next, Little Rapids contends the trial court erred in denying its motion for directed verdict, arguing that any negligence on its part “was broken by the intervening negligence of [Anthony] Coleman.”

“ ‘The most generally accepted theory of causation is that of natural and probable consequences; and in order to hold the defendant liable, the evidence must show either that the act of the defendant complained of was the sole occasion of the injury, or that it put in operation other causal forces, such as were the direct, natural, and probable consequences of the original act, or that the intervening agency could have reasonably been anticipated or foreseen by the original wrongdoer.’ Kleinberg v. Lyons, 39 Ga. App. 774 (5) (148 SE 535) [(1929)]. ‘In Georgia, questions of negligence and proximate cause are ordinarily reserved for the jury, but in plain and undisputed cases the court may make a determination as a matter of law. (Cits.)’ Hercules, Inc. v. Lewis, 168 Ga. App. 688, 689 (309 SE2d 865) (1983).” Southern Intermodal Logistics v. Coleman, 175 Ga. App. 853 (1) (334 SE2d 888). “ ‘It is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s act, and which was sufficient of itself to cause the injury. (Cits.)’ Union Carbide Corp. v. Holton, 136 Ga. App. 726, 729 (222 SE2d 105) (1975). ‘ “ ‘If an injury would have occurred notwithstanding alleged acts of negligence of the defendant, there could be no recovery,’ in an action for negligence. (Cit.)” (Cit.) “(W)here the evidence plainly and manifestly shows that the injury was caused by the intervening efficient act of (a) third person . . ., the defendant can not be held responsible for having produced the injury, and the question is then one of law for determination by the court, and not one of fact for the jury.” (Cit.)’ Lewis v. Atlanta Cas. Co., 179 Ga. App. 185, 189 (345 SE2d 858) (1986).” Jones v. Central of Ga. R. Co., 192 Ga. App. 806, 807 (386 SE2d 386). “ ‘The [legal] inquiry is not whether the defendant’s conduct constituted a cause in fact of the injury, but rather whether the causal connection between that conduct and the injury is too remote for the law to countenance a recovery. (Cit.)’ (Rustin Stamp &c., Inc. v. Ray Bros. Roofing &c. Co., 175 Ga. App. 30, 32 (332 SE2d 341) (1985).)” Atlanta Gas Light Co. v. Gresham, 260 Ga. 391, 392 (4), 393 (394 SE2d 345).

In the case sub judice, the jury was authorized to find that foreseeable injury to cargo handlers was a direct, natural, and probable consequence of Little Rapids’ dangerous practice of stacking loose boxes atop the shrink wrapped items, even in the absence of any negligent handling when unloading. Accordingly, the jury was authorized to conclude that plaintiff would not have been injured but for Little Rapids’ initial failure to exercise ordinary care in preparing its products for shipping. The evidence does not demand a finding that any negligence on the part of Anthony Coleman was the sole cause of plaintiffs injuries. As we cannot say that Little Rapids’ conduct did not constitute a proximate cause of plaintiff’s injuries, the case sub judice remains within the general rule that questions of negligence, comparative negligence, and proximate cause are issues to be determined by the jury. Southern Intermodal Logistics v. Coleman, 175 Ga. App. 853 (1), 854, supra. Compare Atlanta Gas Light Co. v. Gresham, 260 Ga. 391 (1), supra, involving “a static condition existing on a tract of real property.” The trial court correctly denied Little Rapids’ motion for directed verdict on the ground that the negligence of Anthony Coleman was a superseding, intervening cause.

3. Lastly, Little Rapids enumerates the refusal of the trial court to give its written “Request to Charge Number [45],” which reads as follows: “I charge you that if it appears that between the alleged negligent act of Graham Medical Products and the incident complained of by the plaintiff there intervened an independent negligent act of Anthony Coleman which was the direct and proximate cause of the alleged injury and damage to the plaintiff, then and in that event plaintiff would not be entitled to recover any amount from Graham Medical Products unless the independent, intervening act of Mr. Coleman was foreseeable or triggered by the act of Graham Medical Products.”

At the charge conference, the trial court concluded that “the jury is going to have to decide the relative negligence of all the parties involved, including the plaintiff.” The court further explained to defense counsel: “[Y]ou can argue there’s an intervening cause and so forth, I’m going to charge on the pattern charge [on concurrent negligence and comparative negligence] and let [the jury] make the decision.” The record reflects that the trial court gave the pattern charge on “Intervening Cause Rules,” Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. I, Civil Cases, Part XXXII (F), Torts (3rd ed. 1991).

“On the trial of all cases it is the duty of the judge to charge the jury the principles of law applicable to all issues raised by the pleadings and the evidence, even without a request for such an instruction. [Cits.]” Claxton v. Claxton, 214 Ga. 715, 719 (2) (107 SE2d 320). Accord Clarke v. Cotton, 263 Ga. 861, 862 (440 SE2d 165). “It is axiomatic that a jury charge need not be given in the exact language requested if the charge as given clearly covers the circumstances of the case. All that is necessary, provided the requested charge accurately states the relevant principles of law, is that these principles be fairly given to the jury in the general charge. When it can be determined that the charge actually given conveys correctly the intent of the law and is so framed as to be applied with understanding [by the jury] to the fact situation, denial of a request for a specific charge is not reversible error.” (Citations and punctuation omitted.) Hitchcock v. Key, 163 Ga. App. 901, 903 (3, 4) (296 SE2d 625).

In the case sub judice, there is considerable doubt whether defendant’s submitted request is a complete and non-argumentative statement of the law, befitting a jury instruction. See Firestone Tire &c. Co. v. Pinyan, 155 Ga. App. 343, 347 (4) (270 SE2d 883). Moreover, the pattern instruction on intervening causes adequately covered the substance of defendant’s request, when “[viewed] from the perspective of the average juror, unschooled in law. ...” Smoky, Inc. v. McCray, 196 Ga. App. 650, 652 (5), 656 (396 SE2d 794). Accordingly, the trial court did not err in using the language of the pattern charge in preference to the language requested. See Brown v. State, 214 Ga. App. 733, 736 (4) (449 SE2d 136); Wright v. State, 211 Ga. App. 474, 477 (4) (440 SE2d 27). This enumeration is without merit.

Case No. A95A0293

4. Defendant Physician Sales enumerates the denial of its motion for directed verdict, arguing as did Little Rapids that plaintiff “assumed the risk” of injury incident to unloading the trailer. For the reasons stated in Division 1, supra, the jury was authorized to conclude that the negligence of Little Rapids conjoined with the negligence of Physician Sales proximately caused plaintiff’s injuries. “In order for a defendant to invoke the doctrine of assumption of the risk it must be established that the plaintiff deliberately chose an obviously perilous course of conduct and fully appreciated the danger involved. Whitehead v. Seymour, 120 Ga. App. 25 (4) (169 SE2d 369). An act of contributory negligence or an error in judgment is not necessarily an assumption of risk (Yandle v. Alexander, 116 Ga. App. 165 (156 SE2d 504)), and the rule does not extend to assuming the risk of the negligent act of another. Thomas v. Shaw, 217 Ga. 688 [(1)] (124 SE2d 396).” Owens-Illinois, Inc. v. Bryson, 138 Ga. App. 78, 79, supra. In the case sub judice, the trial court correctly denied Physician Sales’ motion for directed verdict since plaintiff did not assume the risks involved in the careless handling by Anthony Coleman of the merchandise as dangerously packed by Little Rapids.

5. Physician Sales enumerates the trial court’s instruction on the “last clear chance” doctrine, arguing that the charge was not adjusted to the evidence because Anthony Coleman, positioned on one side of the pallet, could not see plaintiff on the other side.

“The doctrine of last clear chance can be invoked ‘only where the defendant knows of the plaintiff’s perilous situation, and realizes, or has reason to realize, the plaintiff’s helpless condition, that the defendant is charged with the duty of using with reasonable care and competence his then existing ability to avoid harming the plaintiff.’ Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 670 (88 SE2d 6) (1955).” (Emphasis in original.) Ga. Southern &c. R. Co. v. Odom, 152 Ga. App. 664, 665 (2) (263 SE2d 469). Accord Bennett Drug Stores v. Mosely, 67 Ga. App. 347, 349 (20 SE2d 208) (applying 2 Restatement of the Law of Torts, 1257, 1258, § 480).

In the case sub judice, Anthony Coleman affirmed that he could not see plaintiff inside the trailer “because I was on the other side . . .’’of the loaded pallet, pulling it toward the door. However, the bare fact that he could not see the plaintiff does not contradict his subsequent testimony that he “assume[d] that [plaintiff] was [hurt by the falling boxes] because he was on that side of the load.” This is evidence of Anthony Coleman’s actual knowledge that plaintiff was still in the trailer (where he had gone to pick up a loose box that had already fallen from the top of the shrink wrapped stack) when Coleman jacked the pallet up and began pulling the pallet off “until it hit the door.” In Anthony Coleman’s estimation, this caused “[p]robably fifteen boxes . . .” to fall on plaintiff. Other evidence indicated that Anthony Coleman considered a load that was not shrink wrapped and was loose on top to be unsafe, and that he would “ ‘probably think that they would fall off.’ ” Contrary to defendant’s contentions, this evidence was sufficient to authorize a jury’s determination “that even though the [plaintiff’s] actions may have placed [himself] in a position of peril, [defendant’s agent knew of this and] had the last opportunity to avoid the [calamity] and was negligent in failing to do so. See Harrison v. Feather, 178 Ga. App. 35, 36 (342 SE2d 1) (1986). Accordingly, we find no error in the giving of the charge [on last clear chance].” Branch v. Maxwell, 203 Ga. App. 553, 556 (5c) (417 SE2d 176).

Judgments affirmed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Blackburn, Smith and Ruffin, JJ., concur. Johnson and Andrews, JJ., dissent.

Andrews, Judge,

dissenting.

Because I believe that plaintiff McCamy assumed the risk of injury when he stopped so closely to the loose boxes that they struck him when they fell off the pallet jack, I must respectfully dissent.

“The defense of assumption of the risk requires (1) that the plaintiff had some actual knowledge of the danger; (2) that (he) understood and appreciated the risk therefrom; and (3) that (he) voluntarily exposed (himself) to that risk. (Cits.)” “In its simplest and primary sense, assumption of risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone. (Cits.)” Tennison v. Lowndes-Echols Assn. for Retarded Citizens, 209 Ga. App. 343, 344 (433 SE2d 344) (1993).

Plaintiff McCamy knew of the danger involved when moving loose boxes with no wrapping on them to keep the boxes from shifting. Plaintiff McCamy even warned Tony Coleman about jacking the boxes too high because they would hit the top of the trailer and fall off the pallet. This is precisely what occurred. Therefore, plaintiff Mc-Camy had actual knowledge of the danger and appreciated the risk of accident, i.e., the boxes falling, due to that danger.

Further, plaintiff McCamy voluntarily exposed himself to that risk of harm. As Tony Coleman was unloading the last load, plaintiff McCamy followed behind him, carrying a box. McCamy testified that Tony Coleman was walking backwards and pulling the pallet jack off the truck and, therefore, could not see McCamy who was behind the load of boxes. McCamy further testified that Tony Coleman stopped because he was having trouble getting the load off the truck. McCamy then saw Coleman push the load back and raise the load with the pallet jack. Nevertheless, plaintiff McCamy was standing so close to the load of loose boxes on the pallet jack that when the boxes hit the top of the truck and fell, they struck him.

The majority opinion cites Beringause v. Fogleman Truck Lines, 200 Ga. App. 822 (409 SE2d 524) (1991), for the proposition that plaintiff McCamy’s proximity to the dangerous load may be evidence of contributory negligence, but cannot be considered assumption of the risk. But, in Beringause, plaintiff’s decedent was injured when a truck driving in the opposite direction, swerved into plaintiff’s decedent’s lane and struck the car he was driving head on. The court held that, while there might be evidence of contributory negligence, this was not a case of assumption of the risk. Id. at 824. The court stated that just because a person decides to participate in a convoy he cannot be said to have assumed the risk that a truck will swerve into his lane and hit his car. Id. The court went on to state that plaintiff’s decedent may have been contributorily negligent, however, because he was driving the lead car in a convoy and was using flashing emergency lights, thus causing oncoming drivers to slow down. There was evidence that the truck which hit plaintiff’s decedent’s car was forced to swerve to avoid hitting the car slowing in front of him. Id. at 825.

But, Beringause is not analogous to the situation in the instant case. The risk of harm in the instant case was not tenuous or theoretical, but specific and very real. Moreover, plaintiff McCamy had personal knowledge and experience of the danger posed by unloading loose boxes from the truck. In addition, plaintiff McCamy had warned Tony Coleman just minutes before to be careful not to raise the boxes too high and hit the top of the truck.

In my opinion, this case is similar to Tennison, supra, in which the truck driver attempted to help the forklift operator remove a load of lumber from the truck. The Court held that the plaintiff truck driver voluntarily assumed the risk of a known danger when he climbed onto the pallet of lumber knowing that the forklift was too small and could turn over. Tennison at 344.

Thus, because plaintiff McCamy had actual knowledge of the danger and risk involved in moving the loose boxes, and yet still followed so closely behind the pallet jack that when the boxes did fall they struck him, plaintiff McCamy voluntarily assumed the risk of the danger. Therefore, the trial court erred in denying defendants’ motion for directed verdict.

I am authorized to state that Judge Johnson joins in this dissent.

Decided July 7, 1995

Reconsiderations denied July 26, 1995

Swift, Currie, McGhee & Hiers, W. Ray Persons, Micheál D. Watson, Monique R. Walker, for Little Rapids Corporation.

Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, for Mc-Camy.

Webb, Carlock, Copeland, Semler & Stair, Douglas A. Wilde, James R. Doyle II, for Physician Sales & Service.

       The dissent does not expressly state whether it is merely reweighing the evidence or whether it erroneously concludes (without distinguishing Supreme Court precedent) that plaintiff has assumed the risk of another’s negligence.