text:
    A93A1414.
    LEONARDSON et al. v. GEORGIA POWER COMPANY.
    (436 SE2d 690)
   Andrews, Judge.

Leonardson, as administrator of the estate of Raymond Miller, and as surviving parent, brought this action against Georgia Power Company for the wrongful death of Miller, who was electrocuted as a result of coming into contact with a high voltage power line while he was attempting to remove a tree from a residential lot for a professional tree service. Leonardson appeals from the order of the trial court granting summary judgment in favor of Georgia Power.

The power line at issue was energized at 11,400 volts, and was installed by Georgia Power in 1988. The line was twenty-four feet, three inches above the ground, and seventeen inches from the trunk of the tree Miller was attempting to remove. After Miller climbed the tree to begin removal, he came into contact with the line and was electrocuted. Leonardson claims Georgia Power negligently placed and maintained the line, without warning, dangerously close to the tree, which was dead or partially dead, making it foreseeable that someone climbing the tree to remove it would come into contact with the line. Leonardson also produced evidence by expert affidavit that Georgia Power’s maintenance of the line 17 inches from the tree violated requirements of the National Electrical Safety Code. Georgia Power denied it was negligent in any way, but, for purposes of its summary judgment motion, took the position that, even if it was negligent as alleged, this was not the proximate cause of Miller’s electrocution. In granting summary judgment to Georgia Power, the trial court concluded that Miller’s own unforeseeable actions, rather than the alleged negligence of Georgia Power, were the proximate cause of his death by electrocution.

An employee of the tree service, present when the accident occurred, testified on deposition that Miller saw the power line, discussed whether there was enough room to remove the tree without contacting Georgia Power about the line, and that Miller subsequently proceeded with the job. The employee testified that they knew it was an uncovered power line, and that he was sure Miller knew the power line was there. Miller was an experienced tree climber having years of experience with various tree services. The same employee also testified that he had previously worked on tree removal jobs with Miller, where Georgia Power had been contacted to cut off or take down a power line. It is undisputed that Georgia Power was not contacted about the line prior to the accident. Other evidence showed that it was common for tree services to contact Georgia Power when power lines were located in close proximity to a tree to be removed so that Georgia Power could de-energize the line or provide other safeguards for workers prior to removal of the tree. The owner of the tree service, who was also present at the scene of the accident, deposed that Miller had cut trees for him on this and numerous other occasions as an independent contractor. The owner testified that he could not recall any discussion with Miller about the power line or contacting Georgia Power, but he testified that Miller saw the line.

“A power company is charged with the duty of exercising ordinary care in the construction and maintenance of its wires, poles, transformers and equipment. Ordinary care is that reasonable care and caution which an ordinary cautious and prudent person would exercise under the same or similar conditions. The scope of this duty is dependent on the attendant circumstances.” (Citations omitted.) Collins v. Altamaha Elec. Membership Corp., 151 Ga. App. 491, 492 (260 SE2d 540) (1979). “High voltage lines must be maintained in such a manner and at such a location as not to injure persons who might be reasonably expected to come in contact with such lines.” (Citation and punctuation omitted.) Beamon v. Ga. Power Co., 199 Ga. App. 309, 311 (404 SE2d 463) (1991).

To prevail on a negligence claim, it is necessary for the plaintiff to establish that the defendant had a legal duty to protect the plaintiff from a foreseeable risk of the alleged harm, that the defendant’s act or omission breached this duty, and that there exists a causal connection between the defendant’s conduct and the alleged injury sufficient to show that the conduct proximately caused the injury. Black v. Ga. Southern &c. R. Co., 202 Ga. App. 805, 806 (415 SE2d 705) (1992). “A defendant who pierces the plaintiff’s pleadings by showing that under any theory [of recovery] one essential element is lacking is entitled to summary judgment despite any remaining issues of fact with respect to other essential elements.” Id. at 806.

The trial court correctly determined that, even if Georgia Power breached a duty with respect to placement of the power line, Miller’s death was proximately caused by his own actions, rather than any breach by Georgia Power. “Contributory negligence, which acts as a bar to a plaintiff’s right of recovery, is comprised of two distinct defenses: (1) at all times a plaintiff must use ordinary care for his own safety, and must not, by his own negligence, be the sole proximate cause of his own injuries, and (2) a plaintiff must use ordinary care to avoid the defendant’s negligence when such negligence is apparent or should in the exercise of ordinary care be apparent to him. Whatley v. Henry, 65 Ga. App. 668, 674 (16 SE2d 214) (1941).” Ridgeway v. Whisman, 210 Ga. App. 169, 170 (435 SE2d 624) (1993). Under either statement of the contributory negligence defense, the plaintiff’s negligent actions or failure to use ordinary care to avoid the defendant’s negligence is regarded as the sole proximate cause of the injury even though such negligence may concur with the negligence of the defendant. Wright v. The Concrete Co., 107 Ga. App. 190, 198 (129 SE2d 351) (1962). The related but separate defense of assumption of the risk is applied where a plaintiff assumes the risk of a danger he knows and appreciates. Roberts v. King, 102 Ga. App. 518, 522 (116 SE2d 885) (1960). “Assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while lack of ordinary care for one’s own safety, or contributory negligence, is a matter of some fault or departure from the standard of reasonable conduct. The two may coexist, or either may exist without the other. The difference is frequently one between risks which were in fact known to the plaintiff or so obvious that he must be taken to have known of them, and risks which he merely might have discovered by the exercise of ordinary care.” (Citations and punctuation omitted.) Wright, supra at 194.

In the present case, it appears the record would support application of the defenses of contributory negligence or assumption of the risk, both of which were raised by Georgia Power. Although negligence issues, including application of the defenses of contributory negligence and assumption of the risk are normally jury questions, in clear and palpable cases, they may be resolved as a matter of law. See Wade v. Mitchell, 206 Ga. App. 265, 268-270 (424 SE2d 810) (1992). Even if there is a factual question as to whether Miller discussed the power line and the possibility of calling Georgia Power, the record clearly shows that the line was visible, and Miller saw it prior to climbing the tree. Miller was an experienced climber and cutter, who had previously worked on tree removal jobs where adjacent power lines were a concern. Under these facts, it is clear that when Miller attempted to remove the tree despite the closely adjacent power line, as a matter of law, he either failed to exercise ordinary care to avoid the danger, or knowingly and voluntarily undertook the risk of injury from an obvious and static dangerous condition.

Nevertheless, in cases dealing with injuries caused by high voltage power lines, we have considered these defenses in conjunction with the general rule that “[t]he causal connection between an original act of negligence and injury to another is not broken by [an] intervening act if the nature of such intervening act was such that it could reasonably have been anticipated or foreseen by the original wrongdoer.” (Citation and punctuation omitted.) Beamon, supra at 311; Buckner v. Colquitt Elec. Membership Corp., 206 Ga. App. 69, 70 (424 SE2d 299) (1992). “The [additional] issue presented is thus whether [Miller’s] activities leading to his injuries fell within the scope of those acts that might reasonably have been expected or foreseen by [Georgia Power].” Id. at 70. This is simply another test used to determine proximate cause. The rule “stated and restated in various ways, is that negligence carries with it liability for consequences which, in the light of attendant circumstances, could reasonably have been anticipated by a prudent man, but not for casualties which, though possible, were wholly improbable. One is not charged with foreseeing that which could not be expected to happen. . . . Negligence, no matter in what it consists, can not create a right of action unless it is the proximate cause of the injury complained of.” Stallings v. Ga. Power Co., 67 Ga. App. 435, 439 (20 SE2d 776) (1942). In some cases we have focused on the foreseeability of injury resulting from placement of power lines in close proximity to certain types of ongoing, routine operations, and determined that proximate cause in those cases is a jury question. See Buckner, supra at 70-71 (farming or other agricultural activity). We have distinguished other cases involving plaintiffs who were injured while cutting or trimming trees which fell across power lines, and concluded, as a matter of law, that the conduct of the plaintiffs in those cases, rather than any alleged negligence of the power company, was the sole proximate cause of the injury. Mathews v. Ga. Power Co., 175 Ga. App. 441 (333 SE2d 631) (1985); Douberly v. Okefenokee Rural Elec. Membership Corp., 146 Ga. App. 568 (246 SE2d 708) (1978); see Beamon, supra. This case is in the latter category. It was not foreseeable to Georgia Power that an experienced tree climber and cutter, working in a profession where it is common to encounter the danger of power lines on tree removal jobs, would proceed in this case to attempt removal of the tree, despite the close proximity of an obvious and visible power line. Stated otherwise, even if the negligence of Georgia Power co-existed with Miller’s negligence, the conduct of Miller was such a preponderating cause of the injury, that it severed any sufficient legal causal connection between the negligence of Georgia Power and the injury, and became, in itself, the sole proximate cause of the injury. See Ethridge v. Nicholson, 80 Ga. App. 693, 696 (57 SE2d 231) (1950). The trial court properly granted summary judgment in favor of Georgia Power.

Decided September 23, 1993

Reconsideration denied October 19, 1993

Eichelberger & Perrotta, James A. Eichelberger, Theodore B. Eichelberger, for appellants.

Troutman Sanders, Scott A. Farrow, Robert L. Pennington, for appellee.

Judgment affirmed.

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

       Although no notice of the work adjacent to its power line was given to Georgia Power pursuant to the High-Voltage Safety Act (OCGA § 46-3-30 et seq.), “[o]ne whose injury is caused by negligent installation or maintenance of high-voltage lines, even where such injury occurs while engaged in acts enumerated in OCGA § 46-3-32 . . . within [ten] feet of the lines [OCGA § 46-3-33], is not barred [from recovery] by failure to give notice.” Malvarez v. Ga. Power Co., 250 Ga. 568, 569 (300 SE2d 145) (1983).


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A92A1549.
    HENRICKSON v. PAIN CONTROL & REHABILITATION INSTITUTE OF GEORGIA, INC. et al.
    (438 SE2d 196)
   Smith, Judge.

In Henrickson v. Sammons, 263 Ga. 331 (434 SE2d 51) (1993), the Supreme Court reversed Division 1 of the opinion of this court in this case wherein we affirmed the trial court’s grant of summary judgment to appellees on the ground that the action was time barred. Accordingly, Division 1 of the judgment of this court in Henrickson v. Pain Control &c. of Ga., 205 Ga. App. 843 (424 SE2d 27) (1992) is vacated. The judgment of the Supreme Court is made the judgment of this court, and the judgment of the trial court is reversed and the case remanded.

Decided October 19, 1993.

Schildmeyer, Mackinson & Katz, Mary P. Schildmeyer, for appellant.

Sullivan, Hall, Booth & Smith, Timothy H. Bendin, Eleanor L. Martel, for appellees.

Judgment reversed and remanded.

Pope, C. J., and Johnson, J., concur.


author: Blackburn, Judge.

text:
    A92A2054.
    YOHO v. RINGIER OF AMERICA, INC.
    (438 SE2d 196)
    Decided October 19, 1993.

      Davis, Gregory & Christy, Hardy Gregory, Jr., Joseph R. Neal, Michael W. Skeen, for appellant.

      Fulcher, Hagler, Reed, Hanks & Harper, J. Arthur Davison, Hull, Towill, Norman & Barrett, Patrick J. Rice, for appellee.
   Blackburn, Judge.

The trial court granted summary judgment for the defendant in this tort action, on the grounds that the defendant constituted the statutory employer of the plaintiff. This court affirmed that grant of summary judgment, finding that the case was controlled by Wright v. M. D. Hodges Enterprises, 183 Ga. App. 632 (359 SE2d 700) (1987). Yoho v. Ringier of America, 207 Ga. App. 233 (427 SE2d 544) (1993).

However, in Yoho v. Ringier of America, 263 Ga. 338 (434 SE2d 57) (1993), the Supreme Court overruled Wright v. M. D. Hodges Enterprises, supra, held that the plaintiff was entitled to partial summary judgment on the statutory employer issue, and reversed the judgment of this court. Accordingly, the judgment of the Supreme Court is made the judgment of this court, and the judgment of the trial court is reversed.

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.


author: Cooper, Judge.

text:
    A93A1368.
    FARLEY v. THE STATE.
    (436 SE2d 770)
    Decided October 19, 1993.

      Meadows & Associates, Warren R. Power, for appellant.
   Cooper, Judge.

Dwayne Farley was tried before a jury and found guilty of selling cocaine, in violation of OCGA § 16-13-30 (b). He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt. In his sole enumeration of error, appellant urges the general grounds, arguing that the verdict is based upon the uncorroborated testimony of an accomplice. OCGA § 24-4-8.

On appeal from a criminal conviction, the evidence is construed in the light most favorable to the verdict of guilt, and the presumption of innocence no longer applies. An appellate court does not weigh the evidence or judge the credibility of the witnesses, but only determines whether the adjudication of guilt is supported by sufficient competent evidence. Watts v. State, 186 Ga. App. 358 (1) (366 SE2d 849) (1988); Blackshear v. State, 199 Ga. App. 839 (1) (406 SE2d 269) (1991). The accomplice, Brown, pled guilty and testified for the State that, while appellant dealt in cocaine, he refused to sell cocaine directly to anyone and that he stored his drugs away from the house he shared with Brown. Brown arranged to meet appellant to buy one gram of cocaine for $100. In the company of Deputy Spence and one other, Brown went into the house and came out with appellant. Appellant drove off in his car and returned shortly. Brown placed $100 on the trunk of the car which appellant pocketed. Brown then reached into appellant’s car and retrieved a small package of white powder. This substance was identified by a chemist as cocaine.

Appellant’s reliance upon OCGA § 24-4-8 is misplaced, for Spence corroborated Brown’s version of events, including appellant’s participation. “Where two witnesses swear to the same state of facts, the fact that they are accomplices or are not accomplices, or that one is an accomplice and the other not an accomplice” does not render the evidence insufficient to establish the facts so sworn to as uncorroborated under OCGA § 24-4-8. Wilson v. State, 51 Ga. App. 570 (1) (181 SE 134) (1935). “[T]he theory that one may [use].a conduit or . . .. agent . . . and thereby escape culpability as a seller has been considered and rejected by this court. [Cit.]” Hood v. State, 209 Ga. App. 383 (433 SE2d 699) (1993). A rational trier of fact could reasonably have found from the evidence adduced below proof of appellant’s guilt of selling cocaine beyond a reasonable doubt. Brundage v. State, 208 Ga. App. 58 (1) (430 SE2d 173) (1993).

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.

Tommy K. Floyd, District Attorney, Gregory A. Futch, Assistant District Attorney, for appellee.


text:
    A93A1433.
    JACKSON v. ZANT.
    (436 SE2d 771)
   Cooper, Judge.

Lawrence Dennell Jackson, an inmate at the Georgia Diagnostic & Classification Center, sought permission to commence a pro se civil action against Warden Zant. The trial court denied Jackson permission to file his complaint and Jackson brings this direct appeal.

“When a civil action is presented for filing under this Code section by a party who is not represented by an attorney, the clerk of court shall not file the matter but shall present the complaint or other initial pleading to a judge of the court. The judge shall review the pleading and, if the judge determines that the pleading shows on its face such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief against any party named in the pleading, then the judge shall enter an order denying filing of the pleading. ... An order denying filing shall be appealable in the same manner as an order dismissing an action.” OCGA § 9-15-2 (d).

The pleadings of an inmate proceeding pro se are treated with considerable indulgence, and a complaint should not be dismissed without filing unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to some relief. Battle v. Seago, 208 Ga. App. 516 (431 SE2d 148) (1993); Baxley v. Sutter, 203 Ga. App. 579 (417 SE2d 205) (1992). Jackson’s complaint alleges inhumane and oppressive treatment in violation of due process and OCGA § 42-4-5, in that he has been forced to sleep on the floor for several months. See also OCGA § 42-5-2. These Code sections recognize that, to the very limited extent of providing necessaries, the relationship between warden and inmate is akin to that of guardian and ward, always subject to the exigencies of incarceration and prison life. See Alford v. Osei-Kwasi, 203 Ga. App. 716 (418 SE2d 79) (1992). “Courts of general equity jurisdiction . . . have general supervisory authority and jurisdiction of the persons . . . of all citizens who are under any legal disability. [Cits.]” (Emphasis supplied.) Sangster v. Toledo Mfg. Co., 193 Ga. 685, 690 (1) (19 SE2d 723) (1942). Where, as here, the petition alleges a guardian’s disregard for the necessaries of the ward, equity is invoked with very broad discretionary authority. See, e.g., Sharp v. Findley, 71 Ga. 654, 666 (1) (1884). The complaint further alleges that petitioner’s situation is not remediable via the grievance procedures established at the diagnostic center. Treating this allegation as true, as must be done under the standard of OCGA § 9-11-12 (b) (6), it is conceivable that a superior court judge would direct the warden to provide suitable bedding for the inmate. Accordingly, the superior court erred in denying the filing of the complaint in toto. Gonzalez v. Zant, 199 Ga. App. 13 (403 SE2d 880) (1991); Acker v. Veal, 183 Ga. App. 297 (359 SE2d 7) (1987). However, as to Jackson’s claims for money damages, the complaint fails to show the existence of any justiciable issue of law or fact, and, as to that claim for relief, the order of the superior court refusing to file the complaint is affirmed. McBride v. Gaither, 203 Ga. App. 885 (418 SE2d 67) (1992).

Decided October 19, 1993.

Lawrence D. Jackson, pro se.

Michael J. Bowers, Attorney General, C. A. Benjamin Woolf, Assistant Attorney General, for appellee.

Judgment affirmed in part and reversed in part.

Beasley, P. J., and Smith, J., concur.


author: Andrews, Judge.

text:
    A93A1584.
    McNEARNEY v. THE STATE.
    (436 SE2d 585)
   Andrews, Judge.

McNearney was charged and convicted of robbery by sudden snatching pursuant to OCGA § 16-8-40 (a) (3), and appeals.

In her sole enumeration of error, McNearney contends that the evidence was insufficient to convict her of robbery by snatching. Specifically, she contends that there was no evidence which showed that the victim was conscious of the theft at the time it occurred, and that the property taken was not within the victim’s immediate presence. She argues that the conviction should be vacated and a verdict for theft by taking entered.

Evidence at trial was that the incident occurred on July 27, 1992 in the parking lot of a grocery store. The victim, Janet Taylor, had been shopping at the grocery store, left the store and pushed a grocery cart to her car and began unloading groceries into her car. She had placed her purse in the portion of the cart customarily used to carry children. Ms. Taylor was leaning over, unloading the groceries from the opposite end of the cart and was approximately three feet away from her purse.

Meanwhile, appellant McNearney drove a car through the grocery store parking lot, with co-defendant Dee Evans as a passenger. Evans leaned out of the window and grabbed the purse and McNearney drove out of the parking lot.

Immediately thereafter, Harry Moore, who was also parked in the lot, alerted Taylor to the fact that her purse had been taken. Taylor testified that while unloading groceries, she felt the cart hit the back of her leg. Nevertheless, she did not see the car driven by McNearney approach, nor did she see anyone snatch her purse. She became aware of the crime when Moore alerted her to it. After Moore told Taylor that her purse had been taken, she looked and saw a small grey car, which was traveling fast, leaving the parking lot.

At trial both Dee Evans and appellant McNearney admitted to the basic version of facts outlined above. They contended, however, that they thought that the purse was unattended and did not see Ms. Taylor standing at the front of the grocery cart.

The jury was charged on robbery by snatching and also charged on theft by taking. OCGA § 16-8-2. The jury requested a recharge on the definitions of both crimes and after the definition of robbery one juror asked: “[d]o they have to be conscious of the fact that they are being stolen from?” The court redefined robbery and then stated: “I would say that to prove robbery by sudden snatching it is necessary to show that a person robbed was conscious that something was being taken from their immediate presence. Okay?” The jury then asked “[w]ould there be any time limit?” The court stated: “those issues, how you assess that, is just a jury question.”

The first issue before us is whether the conviction for robbery by snatching was proper in light of the fact that the victim was unaware of the crime until after it was completed. In Hickey v. State, 125 Ga. 145, 146 (53 SE 1026) (1906), the court stated: “ ‘suddenly snatching a purse, with intent to steal the same, from the hand of another, without using intimidation, and where there is no resistance by the owner or injury to his person, does not constitute robbery.’ ” The court further stated: “[i]f the taking be secret, stealthy, and without the knowledge of the owner, it is larceny from the person; but if the taking is done with the knowledge of the victim but without his consent, and by a sudden snatching, the act is robbery.” Id. at 147.

In Williams v. State, 9 Ga. App. 170 (1) (70 SE 890) (1911), the court elaborated on the element of consciousness involved: “it is only necessary to show that the person robbed was conscious that something was being taken away from him, and that for any reason he was unable to prevent it; and consequently the only difference now between robbery of this class and larceny from the person is that in the latter case the property is abstracted without the knowledge of its possessor; but if the possessor becomes conscious, even in the taking, that his property is being taken away from him, and this knowledge is obtained before the taking is complete, the offense of robbery is committed.” See also Moore v. State, 20 Ga. App. 190 (92 SE 963) (1917).

Decided October 19, 1993.

Warren & Wm. Morgan Akin, P.C., Kelley A. Dial, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

The State argues that the victim’s unawareness of the crime committed here is irrelevant and relies upon cases in which robbery convictions were upheld despite the fact that the victim was unconscious at the time of the actual taking. See, e.g., Brown v. State, 251 Ga. 598 (2) (308 SE2d 182) (1983). Those cases are distinguishable from incidents falling within OCGA § 16-8-40 (a) (3). Furthermore, unlike Byrd v. State, 171 Ga. App. 344 (1) (319 SE2d 460) (1984) (victim became aware of taking before the taking was complete); and Crosby v. State, 150 Ga. App. 555 (1) (258 SE2d 264) (1979) (purse stolen from victim’s laundry basket with victim’s knowledge); here the victim was not aware that a crime had been committed until it was complete. Compare Smith v. State, 117 Ga. 320 (43 SE 736) (1903); Hall v. State, 41 Ga. App. 368 (153 SE 199) (1930); Crockett v. State, 177 Ga. App. 92 (338 SE2d 538) (1985).

Because the evidence was insufficient for a conviction for robbery by snatching we vacate that judgment and remand the case with direction that judgment be entered for theft by taking pursuant to OCGA § 16-8-2. Because of our conclusion, we need not address Mc-Nearney’s argument regarding whether the property was taken from the victim’s immediate presence.

Judgment vacated and case remanded with direction.

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


author: Beasley, Presiding Judge.

text:
    A93A0941.
    HEWETT v. KALISH.
    (436 SE2d 710)
   Beasley, Presiding Judge.

We affirm the dismissal of plaintiff Hewett’s medical malpractice action against defendant Kalish, a podiatrist, based on insufficiency of an allopathic physician’s affidavit filed with the complaint pursuant to OCGA § 9-11-9.1.

Plaintiff sought compensation for injuries allegedly resulting from defendant’s failure to exercise the degree of care and skill exercised by podiatrists generally while performing a posterior tibial nerve resection and epineuroplasty. It is alleged that she lost sensation over most of the sole of her left foot. She also sought punitive damages for wilful, intentional or wanton misconduct and intentional infliction of emotional distress.

The affiant is Alan D. Davis, M.D., a licensed medical doctor specializing in orthopedics and certified by the American Board of Orthopedic Surgery. The affidavit sets forth Dr. Davis’ professional credentials, various hospital staff affiliations and his curriculum vitae. Certified copies of plaintiff’s medical records are attached. Dr. Davis averred in part: “I am . . . competent to testify as an expert on behalf of [plaintiff] in an action for professional malpractice arising out of the diagnosis, care and treatment of [plaintiff] from January 1988 through March 1992.1 have personal knowledge of the facts recited in this Affidavit. My opinions in this Affidavit are based upon my education, training and experience in practicing orthopedics, together with my own professional and careful examination of [plaintiff], as well as review of [her] medical records. . . He stated that in his professional opinion, defendant deviated from the standard of care in failing to evaluate and treat tarsal tunnel syndrome in plaintiff and in performing the posterior tibial nerve resection. His affidavit continued: “With respect to the foregoing negligent acts or omissions to act, the factual bases of such claims are as follows: a. Examination of plaintiff; b. Review of [plaintiff’s] records . . .; c. Training and experience in medicine and in orthopedics in particular; and d. Examinations and treatments of other patients with similar histories and conditions in the past.”

OCGA § 9-11-9.1 imposes a pleading requirement on a plaintiff in a professional malpractice action, unlike OCGA § 9-11-56 which imposes an evidentiary requirement on a party seeking or opposing summary judgment on the merits of the claim. Bowen v. Adams, 203 Ga. App. 123 (416 SE2d 102) (1992). Noncompliance with OCGA § 9-11-9.1 (a) subjects the complaint to dismissal for failure to state a claim. “When the sufficiency of a plaintiff’s complaint to state a claim for relief is questioned by a motion to dismiss, it is to ‘be construed in the light most favorable to the plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible. Not unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed. (Cit.)’ [Cit.]” Bowen, supra at 123. The statutórily-required affidavit should likewise “be resolved in plaintiff’s favor, even if an unfavorable construction of the affidavit may be possible.” Gadd v. Wilson & Co., 262 Ga. 234, 235 (416 SE2d 285) (1992). See also Bowen, supra; Samuelson v. Lord, Aeck & Sergeant, 205 Ga. App. 568, 570 (1) (423 SE2d 268) (1992). Nevertheless, the affidavit is insufficient if it fails to show the affiant is competent to testify as an expert in the case. Milligan v. Manno, 197 Ga. App. 171, 172 (397 SE2d 713) (1990).

The affiant’s competency as it relates to the OCGA § 9-11-9.1 affidavit is an evidentiary standard which must be satisfied at the pleading stage just as it,must throughout the proceedings. It is not to be confused with the liberality granted as construing pleadings under the CPA. It is required that the affiant be “competent to testify,” which means that the affiant’s qualification as an expert must be established at the very onset of the lawsuit. See OCGA § 24-9-67. Otherwise, the required statement setting forth “at least one negligent act or omission . . . and the factual basis for each such claim,” OCGA § 9-11-9.1 (a), would be superfluous and irrelevant.

What then must be established as to the competency of an expert who is schooled in a discipline different from that of the defendant? “[I]n order for an affiant to be ‘an expert competent to testify,’ the expert either must be a member of the same professional school as the defendant or, if from a different professional school, must state the particulars how the methods of treatment are the same for the different schools in order to establish that the affiant possesses the expertise to be able to give an opinion regarding the applicable standard of care to which the defendant is held. [Cits.] ‘[W]here the affidavit “establishes that the witness is a member of a different school of medicine than that practiced by the defendant but contains no evidence that the methods of treatment of plaintiff’s condition are the same so as to bring the witness within the exception to the general rule that he is incompetent to testify(, then) the affidavit is legally insufficient.” (Cit.)’ [Cit.]” HCA Health Svcs. v. Hampshire, 206 Ga. App. 108, 111 (3) (a) (424 SE2d 293) (1992). The rule was established in Sandford v. Howard, 161 Ga. App. 495 (288 SE2d 739) (1982), in connection with a motion in limine. It was recognized that podiatrists and allopathic orthopedic surgeons belong to different schools of medical practice, and “[t]he general rule is that a member of a school of practice other than that to which the defendant belongs is not competent to testify as an expert in a malpractice case.” Id. at 497 (4). Sandford identified an exception to that rule: “Where there is proof by competent evidence that the methods of treatment are the same despite the difference in the nomenclature of the schools involved, the witness is competent to testify.” Id. at 497 (5). This standard was adopted and further explained in Bethea v. Smith, 176 Ga. App. 467, 469 (2) (336 SE2d 295) (1985), a case in which a podiatrist’s affidavit was submitted in support of a motion for summary judgment in a malpractice claim against an orthopedist: “Absent some evidence to show that the affiant’s education, training, or experience as a podiatrist would likewise demonstrate his similar expert qualifications as to an orthopedist’s diagnosis and treatment of [the foot ailment in question], the ‘exception’ in Sandford would not be shown.” (Emphasis omitted.) The competency of an expert to testify must be judged by the same standard throughout the different levels of litigation. The result is that the foregoing test has been applied to the OCGA § 9-11-9.1 pleading affidavit. Milligan, supra; Chandler v. Koenig, 203 Ga. App. 684, 685 (417 SE2d 715) (1992); Tye v. Wilson, 208 Ga. App. 253 (430 SE2d 129) (1993); Nowak v. High, 209 Ga. App. 536 (433 SE2d 602) (1993).

Decided October 5, 1993

Reconsideration denied October 20, 1993

Edward H. Kellogg, Jr., Michael G. Kam, for appellant.

Nall, Miller, Owens, Hocutt & Howard, Robert L. Goldstucker, for appellee.

In Chandler, supra at 687, we described the requirement as necessitating the “showing of a professional overlap of expertise in at least one matter alleged by [plaintiff] to constitute malpractice. . . .” This standard has been followed since. Hampshire, supra at (3) (a) (affidavit of an allopathic physician in support of a malpractice claim against an osteopath was insufficient because it contained no evidence regarding the methods of treatment so as to establish “a professional overlap of expertise”); Tye, supra (because of overlapping expertise a medical doctor was competent to give an affidavit in a malpractice claim against a registered nurse involving the care of a post-operative intubated patient where it was shown the affiant was familiar with the standard of care exercised by the nursing profession); Nowak, supra (affidavit of a registered nurse sufficient in a malpractice claim against a medical doctor challenging the administration of an injection where it was shown the methods of treatment were the same and the affiant was familiar with the standard of care exercised by both professions).

We move to an examination of Dr. Davis’ affidavit. Although it contained evidence that he is qualified through education, training and experience to treat patients with histories and conditions similar to plaintiff’s and to evaluate plaintiff’s condition based on physical examination and review of her records, it lacked evidence that he employed like methods of treatment as are employed in podiatry, so as to establish the expertise necessary to state an opinion regarding the standard of care to which the podiatrist defendant is held. Absent evidence of overlapping expertise to establish Dr. Davis’ competency to testify in an area other than his specialty, the affidavit is thus insufficient to satisfy the pleading requirements of OCGA § 9-11-9.1. The court did not err in dismissing the complaint for failure to state a claim.

Judgment affirmed.

Cooper and Smith, JJ., concur.


text:
    A93A1399.
    QUEEN v. THE STATE.
    (436 SE2d 714)
   Beasley, Presiding Judge.

Queen appeals from his judgment of conviction and sentence entered on a jury verdict for theft by conversion of payments made to him for improvement of real property, OCGA § 16-8-15.

1. Appellant contends that the court erred in denying his motion for a directed verdict of acquittal based on the State’s failure to establish venue in Whitfield County.

Mr. and Mrs. Kenemer entered into a written contract with appellant, a building contractor, to construct a log home at a site in Walker County at a cost of $104,000. The parties agreed to an initial draw of $48,600, but prior to the approval of the Kenemers’ loan, appellant requested a deposit of $4,000 to purchase materials. Appellant instructed the Kenemers to deliver a check for $4,000 to a Barbara Fox at the Dairy Queen in the Walnut Square Mall in Dalton at a designated time. The court took judicial notice that the City of Dalton is located in Whitfield County. The Kenemers delivered a second check for $44,600 to appellant at his place of business in Gordon County. Both checks were deposited into appellant’s account.

During the next several months, work on the house was sporadic. After several subcontractors and material suppliers placed liens on the property and efforts to reach appellant proved fruitless, Mr. Kenemer swore out a warrant charging him with conversion of payments for real property improvements.

OCGA § 16-8-15 provides: “(a) any . . . contractor . . . who with intent to defraud shall use the proceeds of any payment made to him on account of improving certain real property for any other purpose than to pay for labor or service performed on or materials furnished by his order for this specific improvement while any amount for which he may be or become liable for such labor, services, or materials remains unpaid commits a felony. . . . (b) A failure to pay for material or labor furnished for such property improvements shall be prima-facie evidence of intent to defraud.”

“[T]he crime shall be considered as having been committed in any county in which the accused exercised control over the property which was the subject of the theft.” OCGA § 16-8-11.

“In theft by conversion cases, where the allegedly converted property is money, we see two basic options available to the state regarding venue. First, the state can proceed in the county where the accused received the money. There is sound authority that the accused exercised control over the money there. [Cits.] Second, the state can produce evidence tracing funds disbursed in one county (where the case is being prosecuted) back to the account or other source in the origin county, showing further that the funds were not disbursed in accordance with the contract provisions governing the use of the funds.” Stowe v. State, 163 Ga. App. 535, 537 (4) (295 SE2d 209) (1982).

The evidence showed that the $4,000 check was delivered in Whitfield County. Appellant contends that because the funds were delivered to Barbara Fox, and not directly to him, the State failed to establish that he exercised control over the funds in that county. First, by appellant’s own admission, he acknowledged receiving payment of $48,600 from the Kenemers, some of which he spent on something other than the construction of their home. Second, the $4,000 check was tendered to Barbara Fox at appellant’s instruction. She was clearly acting as his agent for purposes of receiving the funds. See generally Hutchens v. State, 174 Ga. App. 507 (1) (330 SE2d 436) (1985). The funds were ultimately deposited into appellant’s account and were applied to a use unauthorized by the contract. Venue in Whitfield County was sufficiently established. OCGA § 16-8-11; Stowe, supra.

2. Appellant contends that the trial court failed to consider the factors set out in OCGA § 17-14-10 or make written findings in ordering restitution to the Kenemers. He also asserts that a certain type of interest is not a proper item of restitution.

We do not address these issues because the sentence is void due to its illegality. The. court sentenced defendant to “confinement for a period of 5 years to serve, restitution to be paid $22,167.00.” A restitution order is one which requires an offender to make restitution as a condition of “relief granted to an offender.” OCGA § 17-14-2 (8). “ ‘Relief’ ” as to sentencing means “any suspended or probated sentence, including probation imposed under Article 3 of Chapter 8 of Title 42, . . .” Queen was not given a suspended or probated sentence, which would allow the opportunity for restitution to be earned and paid, but rather a prison term. Restitution constituted no “relief” and in any event may not, under the statute, be joined with a prison term.

It appears from the transcript of the sentencing hearing that the court intended the sentence to be five years, period. OCGA § 17-14-2 (6) allows restitution to be imposed when the form of “relief” is parole or other conditional release from incarceration, which relief can be granted by the State Board of Pardons and Paroles as an “[ordering authority.” OCGA § 17-14-2 (5). After the court pronounced the five-year sentence, it “recommended that as a condition of any parole that restitution be made.” The court itemized the components of restitution, the amounts of each, and the total amount, as findings of fact for the aid of the Board in the event it chose to act. It created the opportunity so as to facilitate the Board’s potential consideration of restitution by marshalling the evidence of amount when it would be readily available, locally, in connection with the trial of the case.

Decided October 5, 1993

Reconsideration denied October 20, 1993.

J. Tracy Ward, for appellant.

Jack O. Partain III, District Attorney, Melvin E. Hyde, Jr., Assistant District Attorney, for appellee.

Thus it was unnecessary for the court to consider the listed factors in OCGA § 17-14-10, as is required of the restitution-ordering authority by the statute, or to make specific written findings with respect to them. See Cannon v. State, 246 Ga. 754, 756 (3) (272 SE2d 709) (1980); Patterson v. State, 161 Ga. App. 85, 86 (5) (289 SE2d 270) (1982); Garrett v. State, 175 Ga. App. 400 (333 SE2d 432) (1985); Woods v. State, 205 Ga. App. 500 (422 SE2d 670) (1992).

The case must be returned to the trial court for correction of the error. If the written judgment did not reflect the sentence imposed, as appears to be the case, it should be corrected. If the sentence intended was as written and therefore invalid for the reasons heretofore explained, the court must impose a valid sentence.

Judgment affirmed in part, sentence vacated, and case remanded for entry of a new judgment.

Cooper and Smith, JJ., concur.


text:
    A93A1425.
    KNUTZEN et al. v. O’LEARY.
    (437 SE2d 347)
   Andrews, Judge.

The superior court granted partial summary judgment to Kevin O’Leary in Suzanne and Ted Knutzen’s lawsuit for the wrongful death of their child and they appeal.

On March 7, 1991, Suzanne and Ted Knutzen, jointly as parents of Steven Knutzen, filed an action against O’Leary and Marshall Hoffman for the wrongful death of their two-year-old son, who drowned on May 6, 1990, in a swimming pool located in the back yard of the neighboring house, owned by O’Leary. In the complaint, the Knutzens claimed that the pool failed to comply with applicable county regulations which required self-closing or self-latching gates and that this non-compliance constituted negligence per se. Secondly, they claimed that O’Leary knew, or should have known, of young children living and playing near his property and was liable for the maintenance of an attractive nuisance. Finally, they alleged that Hoffman was present on the property on May 6, 1990 and left the gate to the pool area open, which negligence resulted in their son’s death.

O’Leary filed a motion for summary judgment arguing that there was no basis for liability since the pool on his property was surrounded by a fence and the yard in which the pool was located was also fenced. The Knutzens then amended their complaint and alleged that O’Leary was vicariously liable for Hoffman’s negligence. The court granted O’Leary’s motion with respect to the attractive nuisance and negligence per se theories, although the case remains pending against Hoffman and against O’Leary as to the claims of vicarious liability.

The following facts appear undisputed. The pool in which Steven Knutzen drowned was located in the back yard of the O’Leary property, which was next door to the Knutzen’s property. O’Leary’s property was completely enclosed by a fence, which partially consisted of wire fencing, approximately 50 inches high, and partially of wooden privacy fencing, about 48 inches high. The fence had two gates, both of which were secured by horizontal braces, but which were not self-closing or self-latching. There was evidence that these large gates could not have been opened by a child.

The pool was constructed in July 1984 by the resident who owned the property before O’Leary. When O’Leary moved into the house, there was also an interior fence around the pool. At some point, O’Leary removed a portion of the interior fence, between the pool and his house.

On the day of the accident, defendant Hoffman, O’Leary’s wife’s stepfather, was tending to the property while the O’Learys were out of town. While Hoffman mowed the lawn, the Knutzens worked in their yard and their two sons played outside. Hoffman opened one of the gates to the O’Leary property while he was mowing the lawn, and the other gate was also opened in order for him to mow the lawn. There is evidence that Hoffman did not put the brace back on either gate.

Prior to the accident, both Mr. and Mrs. Knutzen were aware that O’Leary had a swimming pool and that he had taken a portion of the interior fence down. They were aware that their son Steven had wandered away from their property before, although there is no evidence that he had previously gone to the pool area.

On the date of the tragedy, as Hoffman was leaving the property, Mrs. Knutzen noticed that her son was missing. Eventually, his body was found in the O’Leary pool, under a pool cover. Efforts to resuscitate him were unsuccessful.

1. In their first enumeration of error, the Knutzens claim that the trial court erred in granting summary judgment on their claim. This general assertion is unsupported by specific argument and is deemed abandoned. Court of Appeals Rule 15 (c) (2).

2. In their second and third enumerations, the Knutzens claim that the court erred in ruling that summary judgment was proper under Gregory v. Johnson, 249 Ga. 151 (289 SE2d 232) (1982). The Knutzens argue that the trial court erroneously concluded that the first prong of the five-part test adopted in Gregory was not met.

In Gregory, supra, our Supreme Court adopted the approach of the Second Restatement of Torts regarding artificial conditions which are highly dangerous to trespassing children. “ ‘A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

“(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

“(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

“(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

“(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to the children involved, and

“(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children.’ ” Id. at 154. The court stated that, unlike other risks, “[a] swimming pool in a residential setting is often found to be a condition which could present issues of negligence and foreseeable risk of injury.” Id.

Further, “ ‘[w]hile it is actionable negligence for one to leave unguarded on a part of his own premises, which he knows is frequented by children of tender years for the purpose of play, a dangerous thing or condition which may injure such children, he is not required to provide against remote or improbable injuries to children playing upon his land.’ [Cit.] The duty imposed is to exercise reasonable care to prevent foreseeable injury, not to protect against any injury. If all of the first four conditions of the Restatement are found to exist, it must also be proved that ‘the possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children.’ [Cit.] The results reached in the opinions in Odom [infra] and Oliver [infra] would not be inconsistent with the Restatement because the erection of a fence or other enclosure around a pool is generally held to be all that is required of a landowner in the exercise of reasonable care.” (Emphasis omitted.)

In this case, the facts established that the trial court properly concluded that the first prong of the test was not met. Steven Knutzen had not been invited to the pool area and there was no evidence that he had ever played at the pool before. The fact that he had previously been on other parts of O’Leary’s property is not relevant, since there was no evidence that he had come to the area in which the accident occurred. Furthermore, there was no evidence to show that O’Leary should have been aware that the gates would be left open so that it would be possible for children to trespass. Accordingly, the court did not err in concluding that the first prong of the test was not met.

3. Next, the Knutzens claim that the court erred in ruling that O’Leary’s violation of an ordinance regarding swimming pools did not constitute negligence per se. The Knutzens claim that the Cobb County Commission adopted the Standard Swimming Pool Code as promulgated by the Southern Building Code Congress International and that O’Leary violated those provisions.

Pretermitting the issue of whether a violation of that section would constitute a violation of the duty owed under Gregory, we find this enumeration without merit. First, the regulations referred to are not properly included in the record before us. This court cannot take judicial notice of these ordinances, see generally Oliver v. City of Macon, 241 Ga. 306 (245 SE2d 280) (1978); Dix v. State, 156 Ga. App. 868 (275 SE2d 807) (1981), and the arguments of the attorneys in this regard are not evidence.

Further, even assuming the regulations cited by the Knutzens were properly before us, we do not find that O’Leary violated these provisions. According to the provisions cited, self-latching or self-closing gates are required “for the design, construction or installation, repair or alterations of swimming pools, public or private, and equipment related thereto; requiring a permit and inspection.” (Emphasis supplied.) There is no clear evidence here that O’Leary was required to have a permit to alter the fence in the fashion he did. For this and other reasons, the standards cited do not appear applicable and we reject the Knutzens’ argument that O’Leary’s failure to equip his gates with self-closing, self-latching gates was negligence per se.

4. Finally, the Knutzens argue that the trial court erred in failing to find that O’Leary had met the fifth prong of the Gregory test above. The Knutzens argue that O’Leary failed to exercise reasonable care to protect children from the dangerous condition on his property in that he removed the only pool fence which provided adequate protection for the pool area; failed to maintain self-closing and latching gates and left a floating cover on the pool which would not support a child’s weight. The Knutzens argue that the court applied a “willful and wanton” standard of negligence and that this standard was inappropriate.

Decided October 20, 1993.

Blackwood & Matthews, John D. Steel, for appellants.

Van Gerpen, Hoffman & Harris, Frank P. Harris, Fortson & White, Frederick W. Ajax, Jr., Harvey S. Gray, Michael D. St. Amand, for appellee.

Although it is true that Gregory held that in certain circumstances a question of fact may exist as to whether a landowner has a duty to erect a fence around a residential swimming pool, here the evidence was that, as a matter of law, O’Leary exercised such reasonable care.

In Odom v. Lee, 145 Ga. App. 304 (243 SE2d 699) (1978), cited with approval by the Gregory court, this court reversed the denial of a motion for summary judgment in plaintiff’s wrongful death action against her landowner after an accident in his swimming pool. In that case, the pool was surrounded by a padlocked chain link fence, which was padlocked at the time the child was found. Similarly, in Oliver v. City of Atlanta, 147 Ga. App. 790 (2) (250 SE2d 519) (1978), the swimming pool had a fence with a gate around it, although a question existed as to whether the gate to the area was chained and locked. There, the court affirmed the grant of summary judgment, concluding that because the child was a trespasser, liability would attach only for wilful or wanton acts.

Here, O’Leary exercised reasonable care under the Gregory standards. See Adams v. Atlanta Faith Mem. Church, 191 Ga. App. 215 (381 SE2d 397) (1989). The trial court’s grant of summary judgment on the issues presented was proper.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A93A1915.
    RAINWATER v. THE STATE.
    (436 SE2d 772)
   McMurray, Presiding Judge.

Defendant Rainwater was charged with the offense of abandonment. Upon the trial of the case, defendant denied all elements of the offense charged. The jury acquitted defendant of the charge of abandonment, but found that he was the father of the child alleged to have been abandoned. Defendant appeals the judgment entered on the jury’s determination of paternity. Held:

1. Lest there be some concern as to our jurisdiction to consider defendant’s appeal in the face of his acquittal of the charge of abandonment, we note that prior decisions hold that the determination of paternity presents a question reviewable on appeal. See Burns v. State, 252 Ga. 140 (1) (312 SE2d 317) overruling White v. State, 160 Ga. App. 857 (288 SE2d 574).

2. While acknowledging that pursuant to OCGA § 19-7-45 the State is entitled to an order compelling him to submit to a human leucocyte antigen (“HLA”) paternity test, defendant contends that the State is entitled to no more than one such test. In the case sub judice, defendant showed that he had submitted to a previous test in connection with a civil action pending in Douglas County, wherein the State, acting through the Department of Human Resources and represented by an assistant district attorney, sought to establish that defendant was the father of the child.

Defendant contends that the trial court erred in granting the State’s motion so as to compel him to submit to a second HLA paternity blood test. However, this argument appears to be predicated only upon the language of the statute and on our decision in Pinson v. State, 194 Ga. App. 506 (391 SE2d 28). We find nothing in either of these sources, or elsewhere, which supports defendant’s position and can easily anticipate various circumstances under which such a rule would impair the clear legislative purpose of the statute. There is no indication that the repetition of the test is unusually burdensome to defendant or precipitated by any negligence on the part of the State. Consequently, we hold this enumeration of error to be without merit.

3. Defendant’s second enumeration of error complains of the trial court permitting the State’s witness to answer over his objection the question: “Let me just ask you this last question Dr. Piper. Within the bounds of reasonable medical certainty based on the blood test that was performed and so forth, do you have an opinion as to who the father is of [the allegedly abandoned child].” Defendant objected that the witness had not been qualified as a medical expert and the State then pointed out that she had been testifying as an expert witness and tendered her as such. The witness had established her expertise in certain areas of biology, however she was not a physician. Nonetheless, “the law in Georgia does not require that only medical doctors be permitted to give testimony regarding a medical issue, but allows others with certain training and experience to testify on issues within the scope of their expertise.” Hyde v. State, 189 Ga. App. 727, 728 (377 SE2d 187). See also Avret v. McCormick, 246 Ga. 401 (271 SE2d 832). The trial court did not abuse its discretion in permitting Dr. Piper to respond to this question which her prior testimony demonstrated was within her area of expertise. We further note that since no diagnosis or treatment of a medical disorder is involved, the recent decision of Chandler Exterminators v. Morris, 262 Ga. 257 (416 SE2d 277) is not applicable to the case sub judice.

4. In his third enumeration of error, defendant contends that the trial court erred in admitting hearsay evidence relating results of the previous paternity test conducted in connection with the Douglas County civil action. The evidence in question consisted of a copy of a letter sent to defendant and stating that the earlier test showed a 99.07 percent probability that he was the father of the child. The substance of the letter was hearsay. A secretary, who had prepared and mailed the letter on behalf of and at the direction of the assistant district attorney who represented the State in the civil action, testi- - fled that she had no personal knowledge as to the results of the paternity test and had merely inserted information received from others. While the letter was not admissible to prove the substance of the statements therein, the letter did show that defendant had been told that he was the father of the child and was relevant proof of the elements of the crime with which defendant was charged in that it demonstrated his motive and intent, as defendant never paid child support after said notice. There was no error in the admission of such relevant evidence. Patterson v. State, 233 Ga. 724, 725 (1) (213 SE2d 612). The trial court’s failure to instruct the jury to limit its consideration to the one purpose for which the letter was admissible was not error in the absence of a request to so instruct the jury. Hyde v. State, 205 Ga. App. 754, 758 (3) (424 SE2d 39).

5. Defendant’s final enumeration of error complains of the trial court’s refusal to give a requested charge which stated in part that: “when a child is born or conceived in wedlock there is strong presumption of legitimacy as to the legal father. . . .” See OCGA § 19-7-20 (b) and In re White, 254 Ga. 678 (333 SE2d 588). The evidence shows that the mother of the child was married to a person other than defendant at the time the child was conceived and defendant argues that such is alone sufficient to require the requested charge.

Defendant fails to consider the uncontradicted testimony of the child’s mother that she had lived apart from and had not even seen her former husband for a period of more than two years preceding the conception of the child. Indeed, she testified that she had signed divorce papers and for a period of time had thought she was divorced, although the final judgment in the divorce proceeding was not entered until a date after the conception of the child. A prerequisite to the strong presumption of legitimacy is that a “possibility of access exists. . . .” OCGA § 19-7-20 (b). Since the evidence in the case sub judice is that the child’s mother and her former husband did not have any opportunity for sexual intercourse during the interval of time during which the child was conceived, the presumption upon which defendant relies has been rebutted by uncontradicted evidence and the trial court did not err in refusing to charge on this principle. Her rin v. Herrin, 242 Ga. 256 (248 SE2d 651); Gibbons v. Maryland Cas. Co., 114 Ga. App. 788, 793 (3) (152 SE2d 815). See also Wilkins v. Dept. of Human Resources, 255 Ga. 230, 234 (2b) (337 SE2d 20); In re White, 254 Ga. 678, supra; Adamavage v. Holloway, 206 Ga. App. 156, 158 (1) (424 SE2d 837).

Decided October 20, 1993.

Roger L. Curry, for appellant.

Benjamin F. Smith, Jr., Solicitor, Barry E. Morgan, M. Leanne Wells Kendall, Assistant Solicitors, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Johnson, Judge.

text:
    A93A0875.
    MONROE v. SOUTHERN RAILWAY COMPANY.
    (436 SE2d 568)
   Johnson, Judge.

John Gillyard Monroe brought suit pursuant to the Federal Employer’s Liability Act (“FELA”), 45 USC § 53, to recover for injuries sustained while working for Southern Railway Company (“Southern”). The jury returned a verdict in favor of Monroe in the amount of $65,000. Monroe, being dissatisfied with the amount of the verdict, appeals.

Monroe worked for Southern as a brakeman. His job involved walking the length of the train to inspect it and to correct any problems he detected. When Monroe reported for work on January 9, 1988, the ground in the railyard was covered with ice. The yard had not been salted or sanded to improve footing. Monroe was wearing insulated boots while some of the other employees were wearing “ice creepers,” spikes worn over shoes to improve traction. Monroe was not issued any ice creepers, although other workers had asked for and received them or had borrowed them from their co-workers. While Mdnroe was inspecting the train, he noticed air escaping from a brake line. In order to repair the brake line, Monroe placed one foot between the rails and the other foot on the sloping, icy walkway adjacent to the track. After he repaired the line, one of Monroe’s legs slipped and caused him to “do the splits” and fall. The fall resulted in a pulled hamstring and lower lumbar strain. There was no injury to the bone structures and no disc herniation. Monroe’s physician estimated that Monroe suffered a ten to fifteen percent permanent partial impairment as a result of the injury.

1. Monroe contends that the trial court erred in instructing the jury on the principle of contributory negligence because there was no evidence of negligence by Monroe. We disagree.

The defendant in a FELA case is entitled to a jury instruction on contributory negligence if there is any evidence to support that theory. Hickox v. Seaboard System R., 183 Ga. App. 330, 331 (358 SE2d 889) (1987); Paul v. Missouri Pacific R. Co., 963 F2d 1058, 1059 (III) (8th Cir. 1992); Meyers v. Union Pacific R. Co., 738 F2d 328, 331 (3) (8th Cir. 1984). An employee has a duty to exercise reasonable and ordinary care for his own safety. Seaboard Coast Line R. Co. v. Thomas, 125 Ga. App. 716, 719 (1) (188 SE2d 891) (1972). Here, there was evidence that Monroe failed to exercise ordinary care for his own safety. For instance, Monroe did not wear ice creepers when there was evidence that they might have made walking on ice safer. Although Monroe testified that he had not heard of these devices before, he also testified that he was familiar with the section of his rule book which discusses ice creepers. He also admitted that he was familiar with Southern’s rule which requires employees to wear suitable clothing and footwear and that he did in fact choose the kind of footwear he needed for the job. While this evidence is not overwhelming, it is sufficient evidence to support the charge given. “[T]he FELA cases that allow plaintiffs to reach the jury on a very slim showing of negligence permit defendants to go to the jury on the issue of plaintiff’s negligence with equally slim showings.” (Citation and punctuation omitted.) Hickox, supra at 332. Because there was evidence from which the jury could conclude that Monroe was contributorily negligent, the trial court did not err in giving such an instruction. In addition, considered in context with other instructions, the charge was not misleading or confusing, and was applicable to show that the employee’s acts or omissions while performing his duties would not necessarily bar recovery. Atlantic Coast Line R. Co. v. Daugherty, 116 Ga. App. 438, 446 (9) (157 SE2d 880) (1967).

2. Monroe claims that the trial court erred in refusing to instruct the jury that Southern had the burden of proving contributory negligence because it is an affirmative defense. We agree that Southern had the burden of proof but do not agree that the omission of the requested charge constituted reversible error.

In FELA cases, contributory negligence is an affirmative defense and the burden of proof is on the defendant who relies upon the defense to prove contributory negligence. Hickox, supra at 331. In charging the jury on contributory negligence, the trial court in this case made no reference to the burden of proof. However, “simply because a request to charge is apt, correct and pertinent, it is not necessarily error to fail to charge it. . . . [T]he test is whether the court substantially covered the principles embodied therein or whether it was sufficiently or substantially covered by the general charge.” (Citations and punctuation omitted.) Seaboard Coast Line R. Co., supra at 718 (1). In other words, we look at the charge as a whole. Id. Here, the trial judge’s charge on contributory negligence was taken nearly verbatim from 45 USC § 53. It sufficiently and substantially covered the principle of contributory negligence. Even assuming, without deciding, that the omission did constitute error, it does not require reversal. “Such an error in charge without a showing of prejudice does not constitute reversible error. [Cit.]” Seaboard Coastline R. Co. v. Delahunt, 179 Ga. App. 647, 651 (11) (347 SE2d 627) (1986). There is no evidence that Monroe was prejudiced by the omission. The jury awarded Monroe $65,000 for an injury which required no surgery and at most resulted in a ten to fifteen percent impairment. Within six months, Monroe had returned to work. The jury award was within the province of the jury and not against the clear weight of the evidence. See Shepherd v. Metro-North Commuter R. Co., 791 FSupp. 1008, 1012 (7) (S.D.N.Y. 1992). Thus, the omission of the burden of proof instruction was harmless and would not warrant reversal.

Decided October 7, 1993

Reconsideration denied October 21, 1993

Burge & Wettermark, Michael J. Warshauer, for appellant.

Branch, Pike, Ganz, Thomas B. Branch III, Cathleen M. Devlin, for appellee.

3. Finally, Monroe argues that the court erred in not charging the jury that assumption of risk is not a defense in an action brought under the FELA. We recognize the fact that assumption of risk is not a defense to a FELA claim. See 45 USC § 54. However, Southern did not rely on an assumption of risk defense in its pleading or argument. Courts are discouraged from instructing on assumption of risk when the element is not pleaded. Almendarez v. Atchison, Topeka &c. R. Co., 426 F2d 1095, 1098 (3) (5th Cir. 1970). Therefore, the court did not err in refusing to give the charge.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A93A1338, A93A1340.
    WHITE et al. v. ORR LEASING, INC. et al. (two cases). LEDFORD et al. v. ORR LEASING, INC. et al.
    A93A1339.
    (436 SE2d 693)
   Andrews, Judge.

Appellants Ralph White, Louetta Ledford, and Donnie White (brothers and sister) appeal from the trial court’s grant of summary judgment. Separate suits were filed for injuries suffered in the crash landing of a private airplane when the engine quit on take-off in Florida in September 1988. The pleadings allege the same negligence claims against the same four defendants and these appeals are considered together. Named as defendants were Orr Leasing, Inc.; Garner White Enterprises, Inc.; Johnny Orr and Garner White. Garner White is the brother of the plaintiffs and a former airline pilot for 23 years. He was piloting the airplane when it crash-landed. Orr Leasing, Inc. and Garner White Enterprises, Inc. owned the Piper single-engine aircraft as partners. It was leased by the partnership to Epps Air Service where it was rented by the hour and used for flying lessons.

The complaint alleged that all defendants were “negligent with regard to the maintenance of the aircraft” and that Garner White and his company were negligent “with regard to the operation of the aircraft.” Prior to filing the instant suit, the plaintiffs, with different counsel, had sued Piper Aircraft Corporation, contending that the design or manufacture of the gascolator was a concurrent proximate cause of the accident. That suit was dismissed after Piper filed bankruptcy proceedings and the instant one was filed.

On May 9, 1989, plaintiffs’ prior counsel sent a letter to the liability insurance carrier for defendants in which he stated that “our clients [plaintiffs] will not be making any claim against Garner White, Garner White Enterprises or Epps [Air Service]. In return, you have agreed to make your investigator, Mr. Ty Dedman, available to us for an interview concerning the cause of the accident and possible theories of liability with respect to other third parties.” Copies of that letter were sent to plaintiffs. The attorney did question Dedman and the prior suit was dismissed without prejudice “pursuant to a covenant not to sue. . . .”

1. The first enumeration is that the trial court erred in granting summary judgment to Garner White and Garner White Enterprises, Inc. on all the plaintiffs’ claims based on the covenant not to sue.

It is contended that the actions of the first attorney were in violation of OCGA §§ 15-19-4 through 15-19-6. The only evidence in the record here regarding the authority or lack thereof of the attorney is the affidavit of Ralph White that he had employed the attorney with regard for claims for his injuries and that he “never authorized [the attorney] to give up my right to make a claim against Garner P. White or Garner White Enterprises, Inc. and their aircraft liability insurance coverage. I did not understand this to be the effect of anything he had done until after suit was filed on my behalf by subsequent counsel. I can understand how [the attorney] could have had an honest misunderstanding, but I never authorized him to discharge my claim without an adequate cash settlement.”

The court below concluded that plaintiffs were estopped to deny the attorney’s authority and that they had received the benefits of the agreement by interviewing the investigator. We concur. “ ‘ “The rule that a principal is liable for the contracts of his agent applies even though the agent, in contracting, acts in his own interests and adversely to his principal, where the party with whom the agent contracts has no knowledge of the agent’s derelictions and is not cognizant of any fact charging him with knowledge thereof. . . . The principal, having selected [the] representative and vested him with apparent authority, should be the loser in such case, and not the innocent party who relied thereon. . . .” (Cits.)’ Hynko [v. Hilton, 198 Ga. App. 308, 310 (1991)].” Dickey v. Harden, 202 Ga. App. 645, 647 (414 SE2d 924) (1992). Despite plaintiffs’ argument to the contrary, an attorney may bind his clients outside the context of formal litigation and this may be done by letter agreement, as here. Stevens v. McCarty, 198 Ga. App. 412, 414 (1) (401 SE2d 605) (1991); see generally Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (308 SE2d 544) (1983). Therefore, summary judgment as to Garner White and Garner White Enterprises, Inc. was appropriate on this ground and makes consideration of the remaining enumerations unnecessary as to these two defendants.

2. The second enumeration contends that the court improperly granted summary judgment based on conclusory opinions of the insurance investigator and ignored facts upon which negligence of Orr Leasing, Inc., the only remaining defendant, based on negligent servicing and inspections of the plane, could have been found.

In support of their motion, defendants submitted the affidavit of Dedman, an independent investigator specializing in aircraft accidents, who investigated the accident for the insurer. The affidavit contains the following statement: “[t]he investigation revealed that, following the crash, when the Aircraft engine was run on its own fuel system, it would run for approximately two minutes and then shut itself down. When the engine was run from an independent fuel supply, the engine would run indefinitely. As a result of these tests, and by isolating and then replacing the gascolator, it was determined that the gascolator was admitting air into the fuel system, apparently as the result of a very slight misalignment of the gascolator bowl. Upon replacing the gascolator, the engine ran smoothly and without interruption, using the Aircraft’s own fuel system.” The only portion of this statement which can be described as opinion is the second sentence. Even disregarding that, however, the affidavit contains sufficient factual information to support defendants’ position that the gascolator was at fault for the engine’s failure and the second enumeration’s contention regarding “conclusory opinions” would not preclude summary judgment.

As to Orr Leasing, Inc., the only viable theory of recovery is that of negligent inspection of the plane. Viewed with all inferences in favor of plaintiffs, the evidence regarding this issue showed that the plane had undergone its required 100-hour and yearly flight checks only a few months before the crash. Under the lease with Epps, the partnership was responsible for maintenance of the plane. The required inspections were generally conducted by mechanic Beddow of Aviation Services, who was a mechanic authorized to do inspections required by the Federal Aviation Administration. The gascolator was an “on condition” part, meaning that it should have been replaced when, in the mechanic’s opinion, it was no longer serviceable.

The only basis for liability of Orr Leasing is that discussed in the fourth enumeration, which will be considered here. It alleges that the court did not properly apply 14 CFR § 91.403 (a) of the Federal Aviation Administration, which states that the “owner or operator of an aircraft is primarily responsible for maintaining that aircraft in an airworthy condition.” Plaintiffs contend this creates a nondelegable duty to passengers and would make Orr Leasing absolutely liable for any negligent inspection.

The cause of action alleged here is ordinary negligence and no authority is cited by plaintiffs for the proposition that allowing a mechanic licensed by the FAA to conduct the inspection makes the owner of the plane liable for any failure of inspection as a matter of negligence per se. There is no evidence here that any one other than Beddow ever inspected the gascolator or was aware of any defect in it nor is there evidence that the defect was present during his last inspection. There was no error.

3. The remaining enumerations of error raise various statutes of the State of Florida as the premise for three other theories of imposing liability, res ipsa loquitur, dangerous instrument doctrine, and alternative liability.

“There is nothing in the record sent to this court disclosing that the appellants] gave notice in [their] pleadings or other reasonable written notice of [their] intent to raise this issue, nor was any evidence adduced as to such laws. Under these circumstances, neither the court below nor this court can take judicial cognizance of the law of the sister state. [Cits.]” Lauer v. Bodner, 137 Ga. App. 851, 854 (225 SE2d 69) (1976).

These enumerations are without merit.

Decided September 23, 1993

Reconsideration dismissed October 21, 1993.

Kenneth L. Shigley, for appellants.

Greene, Buckley, Jones & McQueen, Francis C. Schenck, for appellees.

Judgments affirmed.

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

       As to Orr, individually, the parties below agreed, as reflected in the court’s order, that he did not personally own the airplane, was not personally involved in any inspection of the airplane and was not on the trip when the accident occurred. Therefore, there was no basis for a personal judgment against him.

       The gascolator is a part of the aircraft which drains moisture from the fuel system into a sediment bowl. It cannot be observed without dismantling part of the system.

       Formerly 14 CFR § 91.163.


author: Birdsong, Presiding Judge.

text:
    A93A1737.
    DEPARTMENT OF HUMAN RESOURCES et al. v. WESTMORELAND.
    (436 SE2d 706)
   Birdsong, Presiding Judge.

This is a discretionary appeal of the order of the superior court dismissing a Uniform Reciprocal Enforcement of Support Act (URESA) petition.

In July 1982, Linda Lewis was granted a divorce decree and appellee James W. Westmoreland was required to pay $250 child support for two children. In September 1983, pursuant to a URESA petition from Oregon between the same parties and regarding the same children, a child support order in the amount of $161.85 per month per child was entered in this state. In 1990, Linda Lewis filed a second URESA petition from Oregon seeking a child support increase. Appellee filed a motion to dismiss. The superior court granted appellee’s motion on the ground, inter alia, that Linda Lewis was barred from modifying the prior URESA decree by bringing a second URESA action. The trial court in essence concluded that the second URESA petition was in effect an attempt to modify the previous URESA action and thus was invalid. This is a case of first impression for this court. Held:

The purposes of the URESA “are to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto.” OCGA § 19-11-41. The remedies provided by URESA “are in addition to and not in substitution of any other remedies.” OCGA § 19-11-45; Brookins v. Brookins, 257 Ga. 205, 207 (2) (357 SE2d 77). URESA was designed to facilitate collection of support from parents residing in distant states without compelling the custodial parent to incur excessive transportation and litigation expenses. See generally Brookins v. Brookins, 190 Ga. App. 852, 853 (380 SE2d 494), citing Brookins v. Brookins, supra, 257 Ga. at 206 (2). We must dispose of this issue with a view toward facilitating the legislative purposes of URESA.

A URESA action is not a modification action or merely a collection action, but is an independent proceeding for support. State of Ga. v. McKenna, 253 Ga. 6, 9 (315 SE2d 885), overruling in part Bisno v. Biloon, 161 Ga. App. 351 (291 SE2d 66). Accordingly, each URESA action, being independent in nature, must be judicially evaluated within its context.

Decided October 1, 1993

Reconsideration denied October 21, 1993

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Cynthia H. Frank, Staff Attorney, for appellants.

Mullins & Whalen, Nancy A. Bradford, for appellee.

While URESA “ ‘announces the public policy ... to exert every effort to force delinquent and recalcitrant parents who are able to meet their natural obligation to support their minor children who are in need’ ” (Brookins v. Brookins, supra, 190 Ga. App. at 853), a URESA action is not limited to those situations where a parent has “ ‘failed and refused to support’ the child.” Evans v. State of Ga., 178 Ga. App. 1, 2 (2) (341 SE2d 865) (physical precedent only). OCGA § 19-11-52 provides that “no [URESA] cause of action shall arise unless the obligee is in need of support or the obligor has failed and refused to support the obligee.” We agree that “ [i]t is clear from the statute that a cause of action arises under URESA if either the obligee (here the minor child) is in need of support or the obligor (here [appellee]) has failed and refused to support the obligee.” Evans, supra. The fact the father has been diligent in making past support payments would not preclude a URESA action in those instances where the obligee child is in need of support.

Further, OCGA § 19-6-19 is not intended to and does not provide any limitation on the filing of subsequent URESA actions. See Konscol v. Konscol, 151 Ga. App. 696 (261 SE2d 438).

The result here obtained is consistent with the purposes of URESA. We are not unmindful of the allegations of appellee regarding the conduct of his former spouse; however, our interpretation of URESA cannot be swayed by the clean hands or lack thereof of the respective parents. This court must concern itself primarily with the intent of the legislature, being appropriately mindful of the ancient (but ever increasingly important) parens patriae prerogative of a just society to cast a mantle of sovereign protection around those suffering of traditional legal disabilities.

Judgment reversed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A2017.
    LOLMAUGH v. T.O.C. RETAIL, INC.
    (436 SE2d 708)
   Birdsong, Presiding Judge.

Appellant Kathryn Lolmaugh appeals the trial court’s order granting appellee T.O.C. Retail’s motion for judgment notwithstanding mistrial.

Appellant drove to a Magic Market to get gas. She stood near the pump; the clerk inside the store waved and activated the gas pump. After pumping several dollars worth of gas, appellant entered the market. It is disputed whether she asked the clerk (who was talking on the phone to her manager) for merely a package of cigarettes and gave the brand name or stated she “also needed” a package of cigarettes. Appellant then handed the clerk $20 without mentioning she had purchased gas. The clerk charged appellant only for cigarettes, because she was then unaware that appellant was the woman who had pumped the gas. The clerk testified appellant glanced briefly at the entry on the cash register showing the amount tendered and the amount of change due and then put her head down. Appellant put the change given her by the clerk into her purse without counting it; she exited the market and went to her car. The clerk, observing appellant enter the car that was at the gas pump, immediately went outside and called to appellant who drove away without looking back. The clerk informed her manager of the incident and then, pursuant to company policy, called the police. The clerk subsequently advised the police officer of the facts surrounding the incident. The officer contacted appellant and obtained her version of the events (appellant thought she had been charged for the gas and claimed she offered to pay for it to rectify her mistake). Thereafter, the officer obtained an arrest warrant and asked appellant to report to the police station. At the station, appellant was handcuffed, fingerprinted, and held for about an hour until a bondsman posted her bond. The theft by taking accusation was bound over to state court. This criminal charge was dead-docketed, apparently to preserve the State’s prosecutorial resources, after appellant demanded jury trial. The trial court subsequently granted appellant’s motion for dismissal of the charge.

Appellant brought suit for damages against appellee for false arrest and malicious prosecution. Appellee’s motion for directed verdict was taken under advisement by the trial court. The case went to the jury but the jury was unable to reach a verdict after several hours of deliberation. The trial court granted a mistrial. Appellee’s subsequent motion for judgment notwithstanding mistrial also was granted. Held:

1. “A motion for judgment notwithstanding a mistrial is analogous to a motion for a directed verdict or motion for judgment notwithstanding the verdict in that the same can be sustained only where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” (Citations and punctuation omitted.) Hogan v. Pony Express Courier Corp., 195 Ga. App. 592 (1) (394 SE2d 391); OCGA § 9-11-50 (b). In applying this test, the evidence must be construed in favor of the party opposing the motion for judgment notwithstanding mistrial. See Smith v. Ross, 255 Ga. 193, 194 (336 SE2d 39).

2. Appellant contends the trial court erred in granting appellee’s motion for judgment notwithstanding mistrial, because appellant’s posting of a bond only created a presumption of probable cause, and any presumption created under the facts of this case did not demand judgment for appellee/defendant.

Pretermitting this issue is the question of malice. Although not expressly provided by statute, the “malice” contemplated by law in an action for malicious prosecution is the same as in an action for malicious arrest, and consists in personal spite or in a general disregard of the right consideration of mankind directed by chance against the injured individual. Barber v. H & H Muller Enterprises, 197 Ga. App. 126, 130 (2) (397 SE2d 563); compare Worn v. Warren, 191 Ga. App. 448, 449 (1) (382 SE2d 112), and cases cited therein and Pinkston v. City of Albany, 196 Ga. App. 43 (1) (395 SE2d 587) (physical precedent only).

The record is devoid of any evidence to suggest that appellee or its employee acted out of any motivation other than a desire to protect appellee’s property from an unlawful taking. Compare Amason v. Kroger Co., 204 Ga. App. 695, 697 (2) (420 SE2d 314). Further, there exists no direct evidence of malice on the part of appellee or its employee.

A factfinder may reasonably infer the existence of malice from a total lack of probable cause (OCGA § 51-7-44; see Barber, supra). Yet, “ ‘ “where there is no evidence of malice other than such inference as may be drawn from proof of the want of probable cause, and that proof shows some circumstances pointing to the guilt of the accused, although insufficient to exclude every other reasonable hypothesis, the essential ingredient of malice is not so established as to entitle the plaintiff in an action for malicious prosecution (or malicious [false] arrest) to recover.” ’ ” Barber, supra. In this regard, probable cause is totally absent in a malicious prosecution or false arrest action when the circumstances would satisfy a reasonable person that the accuser had no ground for proceeding except a desire to injure the accused. Garmon v. Warehouse Groceries Food Center, 207 Ga. App. 89, 92 (2) (427 SE2d 308). “Although criminal intent is a material element of [theft by taking], a store employee need not determine the subjective intent of a suspected [customer] before seeking an arrest and prosecution under the [theft by taking] statute.” Id. Thus, appellee and its employee were under no duty to inquire or investigate to determine appellant’s subjective criminal intent before reporting the incident to the police or even initiating criminal prosecution. See Garmon.

Decided October 1, 1993

Reconsideration denied October 21, 1993

John G. Wolinski, for appellant.

Sullivan, Hall, Booth & Smith, Jeffrey T. Wise, for appellee.

In this case there is no total lack of probable cause; also, at the time of the incident, circumstances existed pointing to appellant’s guilt. Applying the standards in Division 1, we find the trial court did not err in granting appellee’s motion for judgment notwithstanding mistrial. Appellant’s additional contentions are without merit.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1161.
    WRIGHT et al. v. ARCHER.
    (436 SE2d 775)
   Johnson, Judge.

The Wrights filed an action against Archer for injuries allegedly sustained in an automobile collision. At the request of the Wrights’ attorney, the case was placed on the trial calendar only two months after the complaint was filed. By letter to the clerk’s office, Archer’s counsel objected to the case being placed on the trial calendar because the discovery period had not yet expired. Archer’s counsel also contacted the clerk’s office by telephone and was told that the case was expected to be taken off the calendar. The case was not taken off the trial calendar, however, and when Archer failed to appear for trial as scheduled, the Wrights made a motion to strike Archer’s answer and for judgment by default. The trial court granted the motions and entered judgment against Archer. The record is silent as to precisely how and when Archer was notified that the judgment had been entered against him. Archer’s counsel told the court that he received notice in November 1991, that a fi. fa. had been entered on September 30, 1991. Several weeks after the term of court ended, Archer filed a motion to set aside the judgment based upon his belief that the case had been taken off the calendar. In granting Archer’s motion to set aside the judgment after hearing evidence and arguments, the trial court found that the court’s own office staff and the clerk’s office staff may have shared the responsibility for Archer’s mistaken belief that the case had been removed from the calendar. The 'judgment having been vacated and set aside, the case proceeded to trial and resulted in a jury verdict in favor of Archer. The Wrights appeal from the grant of Archer’s motion to set aside the judgment.

1. The Wrights contend that the trial court erred in granting Archer’s motion because Archer’s own negligence contributed to the judgment being entered against him. We disagree.

A judgment may be set aside where there is fraud, accident or mistake or the acts of the adverse party unmixed with negligence or fault of the movant. OCGA § 9-11-60 (d) (2). Having heard evidence and argument on the issue, the trial judge found that the court’s own staff and the clerk’s office staff may have shared responsibility for Archer’s failure to appear. The court did not find Archer negligent in any particular. In a motion to set aside a judgment, the trial court sits as the trier of fact. See Wolfe v. Rhodes, 166 Ga. App. 845, 847 (305 SE2d 606) (1983). An appellate court will not interfere with a finding of fact by the trial judge if there is any evidence to support it. Id. There is no transcript of the hearing and evidence presented in support of the motion to set aside judgment. In the absence of a transcript, we must presume there is evidence to support the trial court’s finding that Archer’s failure to appear for the trial was due to a mistake. We must further presume that there is evidence to support the trial court’s assessment that its own office staff and the clerk’s office staff may well have shared responsibility for the mistake. We must further presume that the trial court would have made a finding that Archer was negligent and that his negligence contributed to the events leading to the judgment being entered against him if there was evidence to support such a finding. See Hamm v. Willis, 201 Ga. App. 723 (411 SE2d 771) (1991); Triple A Distrib. v. Carrier Reps, USA, 193 Ga. App. 348, 349 (1) (387 SE2d 624) (1989). We will not disturb the trial court’s finding on that issue.

2. The Wrights also argue that the court erred in setting aside a judgment when the motion was filed several weeks after the end of the term in which the judgment was entered. This contention is without merit.

It has long been the rule in Georgia that a motion to set aside a judgment based upon lack of jurisdiction or because a non-amendable defect is apparent on the face of the record can be filed outside of the court term in which the judgment was rendered. Smyrna Marine v. Stocks, 172 Ga. App. 426 (1) (323 SE2d 286) (1984); Gieger Finance Co. v. Travis, 146 Ga. App. 224, 225 (1) (246 SE2d 132) (1978). In 1986, OCGA § 9-11-60 was amended to include fraud, accident or mistake as legal grounds for setting aside a judgment. Prior to the amendments to OCGA § 9-11-60, one could accomplish the same result by filing an action in equity to set aside the judgment. At. the same time the amendment authorized judges to set aside judgments for fraud, accident, or mistake, it abolished the right to use a complaint in equity for this purpose. The language of the amendments makes it clear that in adding these grounds to the statute, the legislature intended to give these formerly equitable grounds the same legal effect as the other statutory grounds. Thus, as amended, OCGA § 9-11-60 makes no distinction between fraud, accident, mistake, lack of jurisdiction, or a non-amendable defect as grounds for setting aside a judgment. Therefore, we hold that a motion to set aside a judgment based upon fraud, accident, or mistake may also be properly considered and granted outside of the term in which the judgment was rendered.

Decided October 21, 1993.

Rand & Ezor, Samuel S. Olens, Richard Kopelman, for appellants.

Sidney L. Moore, Jr., for appellee.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.