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

text:
    A93A0691.
    WALKER v. JACK ECKERD CORPORATION. KARP v. WALKER.
    A93A0692.
    (434 SE2d 63)
   Birdsong, Presiding Judge.

Appellant/cross-appellee Wayne E. Walker (Walker) appeals from the order of the state court granting summary judgment to appellee Jack Eckerd Corporation (Eckerd’s). Cross-appellant Alan A. Karp, M.D. (Dr. Karp) cross-appeals from the order denying his motion for summary judgment.

This appeal arises from a malpractice action by Walker against Dr. Karp who prescribed a drug, Blephamide, that allegedly injured Walker, and against the pharmacy which dispensed the drug. A package insert issued to pharmacies with the drug warned that prolonged use could result in glaucoma. Dr. Karp, who was then duly licensed to practice medicine in Georgia, twice prescribed Blephamide for Walker. Walker asserts that both of Dr. Karp’s prescriptions were “PRN” prescriptions. A “PRN” prescription can be refilled as needed over a lengthy time period, usually not over one year. Dr. Karp denies that he issued either prescription as “PRN,” or otherwise refillable. Nevertheless, appellant made averments of fact in his complaint that both the first and second prescriptions, which Dr. Karp telephoned to Eckerd’s, were “PRN.” Eckerd’s dispensed this drug under one of the prescription numbers fifteen times to Walker in less than one year. Walker subsequently was diagnosed with glaucoma, which allegedly was caused by excessive Blephamide prescribed by Dr. Karp and dispensed by Eckerd’s. Held:

Case No. A93A0691 (Main Appeal)

1. The trial court, citing Reynolds v. Estate of R. J. Reynolds, 238 Ga. 1, 3 (230 SE2d 842), found that appellant’s complaint averred “that defendant Karp telephoned a ‘PRN’ prescription to defendant Eckerd’s drugstore. . . . Defendant Eckerd, in its answer, admits this allegation. As such, [appellant] is bound by the allegation contained in his complaint, which was admitted by the answer.”

Appellant’s contention that this pleading did not constitute an admission in judicio because it was merely an expression of opinion is without merit. Although admissions in judicio apply only to admissions of fact and do not apply when the admission is merely the opinion or conclusion of the pleader as to law or fact (Howell Mill-Collier Assoc. v. Pennypacker’s, 194 Ga. App. 169, 172 (390 SE2d 257)), examination of the complaint reveals that the admissions as to the “PRN” prescription were unequivocally averred as statements of fact. It is incidental that this averred information may not have originated within plaintiff’s personal knowledge; having placed it within his pleading as a statement of fact, appellant cannot escape the effect of his pleading strategy merely by asserting that the pleaded information was based on matters within the knowledge of a third person. Admissions are received in evidence either as a hearsay exception or as non-hearsay (Green, Ga. Law of Evid. (3d ed.), Admissions, § 234); suffice it to say that under either theory admissions are not rendered inadmissible through a claim of hearsay.

A question remains whether an admission in judicio results when conflicting evidence appears elsewhere in the record as to the fact allegedly admitted in the pleadings. Admissions in judicio can be considered in the disposition of summary judgment cases. See generally Reynolds, supra; Four Square Constr. Co. v. Jellico Coal &c. Co., 145 Ga. App. 650 (244 SE2d 612).

In Summerlot v. Crain-Daly Volkswagen, 238 Ga. 546, 547 (1) (233 SE2d 749), the Supreme Court observed that “[t]he Civil Practice Act provides that when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated ... as if they had been raised in the pleadings” and that “pleadings may be amended so as to conform to the evidence, but failure to so amend does not affect the result of the trial on the issues actually tried.” (Emphasis supplied.) Id. Then after noting that “the issue . . . was considered and determined on its merits by the trial judge,” the Supreme Court concluded that “we do not consider the alleged typographical error in the complaint to be an admission in judicio that barred the applicant from showing to the contrary.” (Emphasis supplied.) Id. at 547. This rationale was followed by this court in Stephens v. Tate, 147 Ga. App. 366, 367 (1) (249 SE2d 92), holding that an unwithdrawn admission in the complaint did not constitute a binding admission in judicio supporting grant of summary judgment where the order was hotly contested and “the issue was considered and determined on its merits by the trial court.” (Emphasis supplied.)

In Space Leasing Assoc. v. Atlantic &c. Systems, 144 Ga. App. 320 (4) (241 SE2d 438), appellants asserted that the recitation of a certain date in a complaint was a typographical error. This court, purporting to construe Summerlot, supra, held: “ ‘The Civil Practice Act provides that when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. It also provides that pleadings may be amended so as to conform to the evidence, but failure to so amend does not affect the result of the trial on the issues actually tried. [Cit.]’ ” (Emphasis supplied.) Space Leasing, supra at 326 (4). It was then concluded that “[t]he thrust of this holding, that where a pleading is in conflict with other evidence it will be deemed amended to conform with the evidence, is in accord with the federal courts’ construction of Rule 15 (b). These cases have consistently held that pleadings are deemed amended to conform with the evidence whether formally amended or not, even if the allegations of the pleadings are contradictory to the evidence. [Cits.]” Id. at 327 (4); compare Chester v. State, 168 Ga. App. 618 (1) (309 SE2d 897). Neither Space Leasing, supra, nor Chester, supra, address the significant factor discussed in Summerlot, supra, that the issue involved in the admission in the pleadings was one actually determined on the merits by the trial court. (Moreover, Chester, supra, is distinguishable as the issue of ownership of money involved a legal question so that the denial of ownership under the circumstances presented appears to have related to a conclusion of law rather than an admission of fact.) Subsequently, this court in an appeal of a jury verdict, citing both Summerlot and Space Leasing, held that where a pleading is in conflict with evidence presented at trial, it will be deemed amended to conform to the evidence. Aiken v. Dept. of Transp., 171 Ga. App. 154, 155 (1) (319 SE2d 58); compare Sambo’s of Ga. v. First Am. Nat. Bank, 152 Ga. App. 899, 901 (3) (264 SE2d 330); Blatt v. Bernath, 151 Ga. App. 69, 71 (1) (258 SE2d 735). However, this court has held that a party to a suit will not be allowed to disprove an admission made in his pleadings, without withdrawing it from the record, and “[t]he CPA did not wipe out or destroy the law in Georgia to the effect that a party to an action is bound by material allegations made in his pleadings so long as they remain in his pleadings, and the plaintiff’s contradictory pleadings, if any, are to be construed in favor of the defendant.” Anderson v. Oakley, 133 Ga. App. 758, 759 (1) (212 SE2d 875); accord Four Square Constr., supra; Martin v. Pierce, 140 Ga. App. 897, 898 (1) (232 SE2d 170) cited and applied without explanation in Shahan v. Scott, 259 Ga. 172 (377 SE2d 859). Thus, “[t]he Civil Practice Act did not affect the rule that admissions in pleadings are conclusive.” Agnor’s Ga. Evid. (2d ed.), Hearsay, § 11-10.

It appears that merely because conflicting evidence may exist as to a given issue of fact, this will not prevent per se a party from making an admission in judicio in his pleadings as to that fact. However, if the trial court admits that conflicting evidence, and either the court (e.g., when ruling on a motion for summary judgment) or the jury (when reaching its verdict) considers the conflicting evidence on the merits, the pleadings at that point become amended to conform to such evidence. This is because, by admitting the evidence and allowing the factfinder to consider it, the trial court has in effect, either sua sponte or by overruling an opposing motion, tacitly permitted the pleading party to withdraw the admission contained in the pleadings. Conversely, when the trial court does not allow the conflicting evidence to be admitted or, where applicable, elects not to consider the issue on the merits, the admission of fact made in the pleadings remains in full force and effect as an admission in judicio and is conclusive of the fact admitted. See generally OCGA § 24-3-30; cf. Grant v. Rivers, 182 Ga. App. 631 (356 SE2d 560), where it was held, “having admitted in his answer to the terms of the agreement as alleged by [appellant], [appellee] was bound thereby and, so long as those admissions remained unstricken or unamended, was estopped to present evidence to the contrary.” Basically, the rule vests the trial court with discretion to determine whether an admission of fact made in pleadings should be withdrawn, thereby allowing the pleadings to be amended by conflicting evidence admitted and considered on the merits.

The case at bar is factually distinguishable from the above-cited cases; likewise, it is distinguishable from Smith v. Doe, 189 Ga. App. 264 (2) (375 SE2d 477), a case involving the pleading of inconsistent claims in a single pleading. (Green, supra at p. 423, cautions: “Inconsistent pleadings, although permitted by the Civil Practice Act for purposes of the rules of evidence, may constitute an admission or an inference beneficial to the opposite party. . . . Although the Civil Practice Act permits inconsistent pleading as a matter of procedure, the evidentiary effect of inconsistent pleading must be considered and weighed before this practice is employed.”)

In this case, the trial court expressly held in its order that “plaintiff [was] bound by the allegation contained in his complaint, which was admitted by the answer.” Inherent in this ruling, as further evidenced by the accompanying citation to Reynolds, supra, is the trial court’s election not to allow appellant to withdraw the admission in judicio made in his complaint of the fact that Karp twice telephoned a “PRN” prescription to Eckerd’s drugstore, as averred in the complaint. Clearly, the trial court did not dispose of the issue of “PRN” prescriptions on the merits. Accordingly, the trial court did not abuse its discretion in entering this finding and treating the admission in judicio as conclusive. Reynolds, supra.

2. Appellant asserts the trial court erred in holding that there was no breach of a legally recognized duty on the part of Eckerd’s either in failing to warn or in failing to refuse to refill the prescriptions. (By virtue of the admission in judicio in appellant’s pleadings it has been conclusively established that the prescriptions were telephoned to Eckerd’s by Dr. Karp as “PRN” prescriptions. See Division 1, above.) Whether a duty is owed by one person to another is a question of law to be decided by the courts (making it ripe for summary adjudication); but once a duty is established, the scope of the duty or the standard of care generally is considered a question of fact to be decided by the trier of fact. Dooley v. Everett, 805 SW2d 380, 384 (8) (CA Tenn.); Nichols v. Central Merchandise, 817 P2d 1131 (1) (CA Kan.); accord Ingram v. Hook’s Drugs, 476 NE2d 881, 883 (4) (CA Ind.); Kampe v. Howard &c. Pharmacy, 841 SW2d 223 (1) (CA Mo.). (The case at bar does not present the question of pharmacies’ liability as suppliers for the sale of “over-the-counter” non-prescription products or other articles.)

Neither party has cited and we are not aware of any Georgia statutory authority expressly imposing a duty to warn or to refuse to fill prescriptions upon pharmacists who are provided with manufacturers’ literature warning of potential adverse effects if certain drug dosages are exceeded. Compare OCGA § 16-13-73. In fact, OCGA § 26-3-8 (b) specifically excepts certain prescription drugs from various statutory labeling and warning requirements. However, both parties have well-identified the two conflicting lines of authority pertaining to the common-law duty of pharmacists regarding the warning of patients and the refusal to fill prescriptions; the strengths and weaknesses of each position have been ably argued by counsel for both sides. It appears to be a matter of first impression for this court as to the scope of a pharmacist’s duty, at the present time in this state, in the dispensing of prescriptions.

Appellant, citing Docken v. CIBA-GEIGY, 790 P2d 45, 47 (CA Or.) (pharmacist owes duty to perform compatible to standard of care in the community) and Dooley, supra (whether pharmacist owed duty to warn customer was fact question precluding summary judgment), advances what we perceive currently to be a minority view. Appellant has asserted that, assuming arguendo Eckerd’s was following the prescription instructions issued by a physician licensed to practice medicine in Georgia, there existed an independent duty on the part of Eckerd’s either to warn appellant or his prescribing physician of the dangerous properties of the drug or to refuse to refill and dispense the prescription, and that a jury issue arose as to the breach of such duty. Docken, supra; Dooley, supra; compare Riff v. Morgan Pharmacy, 508 A2d 1247 (SC Pa.).

However, in view of OCGA Title 26, Chapters 3 and 4, the need for preserving, without interference of third parties, a trusted physician-patient relationship, the fact that patients have different reactions to and tolerances for drugs coupled with the fact that the severity of a patient’s condition may warrant a different level of risk acceptance, which factors are best monitored and evaluated by doctors, and the public policy of this state for reducing frivolous malpractice actions against professionals (see, e.g., OCGA § 9-11-9.1), we find more persuasive and adopt the rule as announced in Jones v. Irvin, 602 FSupp. 399, 402-403 (7) (D.C. S.D. Ill.), to-wit: “A pharmacist . . . owes the customer the ‘highest degree of prudence, thoughtfulness, and diligence.’ ” However, “a pharmacist has no duty to warn the customer or notify the physician that the drug is being prescribed in dangerous amounts, that the customer is being over medicated, or that the various drugs in their prescribed quantities could cause adverse reactions to the customer. It is the duty of the prescribing physician to know the characteristics of the drug he is prescribing, to know how much of the drug he can give his patient, to elicit from the patient what other drugs the patient is taking, to properly prescribe various combinations of drugs, to warn the patient of any dangers associated with taking the drug, to monitor the patient’s dependence on the drug, and to tell the patient when and how to take the drug. Further, it is the duty of the patient to notify the physician of the other drugs the patient is taking. Finally, it is the duty of the drug manufacturer to notify the physician of any adverse effects or other precautions that must be taken in administering the drug. [Cit.] Placing these duties to warn on the pharmacist would only serve to compel the pharmacist to second guess every prescription a doctor orders in an attempt to escape liability.” Id. at 402 (3-6); see Eldridge v. Eli Lilly & Co., 485 NE2d 551, 554-555 (4) (AC Ill.) (pharmacist has no common-law duty to refuse to fill prescription simply because it is for quantity beyond that normally prescribed or to warn physician of that fact); Leesley v. West, 518 NE2d 758 (AC Ill.) (pharmacist has no duty to warn consumer of drugs’ dangerous side effects); Batiste v. American Home &c. Corp., 231 SE2d 269 (CA N.C.); Ullman v. Grant, 450 NYS2d 955, 956 (3) (SC N.Y.); compare Kampe, supra at 226-227 (absent apparent discrepancy on face of prescription, pharmacist has no duty to warn patient; duty fulfilled by properly filling legal prescription as written); Ramirez v. Richardson-Merrell, Inc., 628 FSupp. 85, 88 (3) (DC E.D. Pa.) (imposing duty to warn would place pharmacist between the prescribing physician and the patient); Garside v. Osco, Inc., CA No. 88-974-T (DC Mass.); Adkins v. Mong, 425 NW2d 151 (1-2) (CA Mich.) (pharmacist has no duty to warn where prescription proper on face, dispensed according to prescription, and neither physician nor manufacturer requested pharmacist give particular warning; pharmacist has no legal duty to monitor and intervene); McKee v. American Home Products Corp., 782 P2d 1045 (SC Wash.) (no duty to warn, and although pharmacist should have a duty to be alert for incompatible prescriptions, he or she does not have a duty to provide customers with manufacturers’ package insert information or to question judgment made by physician as to propriety of prescription); Pysz v. Henry’s Drug Store, 457 S2d 561 (DCA Fla.) (finding no duty to warn but acknowledging that factual situations might exist which would support negligence action against pharmacist who lawfully filled a prescription); Stebbins v. Concord &c. Drugs, 416 NW2d 381, 387 (18) (CA Mich.) (adopting the rule followed in Pysz, supra, and Jones, supra, that pharmacist has no duty to warn where a prescription is proper on its face and neither physician nor manufacturer has required pharmacist to give a warning) and Makripodis v. Merrell-Dow Pharmaceuticals, 523 A2d 374 (6-8) (SC Pa.) (pharmacist not required to provide consumer with such warnings as required to be given to physicians by drug manufacturers) with Bichler v. Willing, 397 NYS2d 57 (declining to hold a druggist can never be liable for correctly filling a prescription); Nichols v. Central Merchandise, supra at 1133 (5) (no duty to warn patient of potential consequences of drug use “at least” under facts of case); Frye v. Medicar-Glaser Corp., Docket No. 72908 (SC Ill.) (consumers should look principally to prescribing physicians to convey appropriate drug warnings) and Ingram v. Hook’s Drugs, supra at 885 (decision to warn requires knowledge of medical history and other facts about patient; pharmacist has no duty to warn, except those warnings actually contained in physician’s prescription); cf. Murphy v. E. R. Squibb & Sons, 710 P2d 247 (1) (SC Cal.) (pharmacist using due care in compounding and labeling prescription drug immune from strict liability); Coyle v. Richardson-Merrell, Inc., 584 A2d 1383, 1386-1387 (SC Pa.) (declining to impose duty upon pharmacists to supply drug risk information; recognizing pharmacists might refuse to fill prescriptions to avoid liability); Mazur v. Merck & Co., 964 F2d 1348, 1356-1357 (5) (dictum).

In adopting this view, we are aware that effective January 1, 1993, the Georgia State Board of Pharmacy imposed certain new drug review and patient counseling rules on pharmacists. Rules of Ga. State Board of Pharmacy, § 480-31-.01. However, this does not alter the legislature’s intent prior to these rules to except certain prescription drugs from various labeling and warning requirements. OCGA § 26-3-8 (b). Nor will we here decide whether these rules of the State Board of Pharmacy are mandated by federal law or are in conflict with OCGA § 26-3-8 (b). Suffice it to say that this case is not intended to serve as controlling precedent for cases involving pharmacists’ duties arising after January 1, 1993.

We do not here address a situation where a druggist has improperly compounded a drug, filled a legitimate prescription with a different drug than prescribed, or allowed a drug to become infected with some adulterating foreign substance during the course of preparing and filling the prescription. Compare Pysz, supra at 562 (2) and Gar-side, supra at IV; Ramirez, supra at 88 (4) with Ullman, supra at 956 (1-2). Likewise this case is distinguishable factually from Ferguson v. Williams, 374 SE2d 438 (CA NC) which held that a pharmacist had no duty to advise absent knowledge of circumstances alerting him to specific facts and who thereafter undertook to advise the customer giving rise to a duty to advise correctly. The trial court did not err as averred in this enumeration'of error.

3. In view of the above, the trial court did not err in granting appellee’s motion for partial summary judgment. See generally Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474). At best there existed but a shadowy semblance of an issue as to appellee Eckerd’s liability. “Summary judgment law does not require the movant to show that no issue of fact remains but only that no genuine issue of material fact remains; and while there may be some shadowy semblance of an issue, the case may nevertheless be decided as a matter of law where [, as in this case,] the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.” (Citations and punctuation omitted.) Peterson v. Liberty Mut. Ins. Co., 188 Ga. App. 420, 424 (373 SE2d 515).

Case No. A93A0692

Cross-appellant Karp asserts the trial court erred in denying his motion for summary judgment as there is no genuine issue of fact whether a physician-patient relationship exists between him and appellant. Cross-appellant argues that both of the prescriptions were placed by phone merely as an “accommodation” to cross-appellee, who initially was married to Karp’s mother-in-law, and not as a result of an existing physician-patient relationship. Karp did not bill crossappellee for his services.

In this state “there can be no liability for malpractice in the absence of physician-patient relationship.” Peace v. Weisman, 186 Ga. App. 697, 698 (1) (368 SE2d 319); see Rogers v. Coronet Ins. Co., 206 Ga. App. 46, 49 (3) (424 SE2d 338).

Generally, it is a question of fact for the jury whether there exists a physician-patient relationship; however, a case may be disposed of by summary judgment where the facts are shown by such clear, palpable, and undisputed evidence that the jury could reasonably draw but one conclusion. Cf. Southern Trust Ins. Co. v. Braner, 169 Ga. App. 567, 569 (1) (314 SE2d 241). A physician-patient relationship can be established by circumstantial evidence. See OCGA §§ 24-1-1 (4); 24-4-9. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843). Cross-appellee testified in his deposition that he established a doctor-patient relationship with cross-appellant Karp the first time he inquired about eye drops and the drug Blephamide; he sought out Dr. Karp’s counsel; and Dr. Karp gave him certain advice regarding diet and fat intake. Dr. Karp testified in his deposition that, during his first conversation regarding the drug, he warned cross-appellee he did not like him using the drug and advised him to see his ophthalmologist. There exists some evidence of record which would create a genuine issue of fact as to the existence of a physician-patient relationship. The trial court did not err in denying cross-appellant’s motion for summary judgment.

Judgment affirmed.

Beasley, P. J., Cooper, Andrews, Johnson and Smith, JJ., concur. Pope, C. J., McMurray, P. J., and Blackburn, J., dissent.

Pope, Chief Judge,

dissenting.

I agree with the majority that, under the common law, a pharmacist has no duty to warn a patient about all possible adverse effects incident to the use of properly prescribed medications. Thus a pharmacist has no duty to provide patients with manufacturers’ inserts containing drug warnings or contraindications of use or to advise the patient of such warnings. Yet, in my opinion, a pharmacist is and should be more than a mere “warehouse for drugs [or] shipping clerk who must dutifully and unquestioningly obey the written orders of omniscient physicians.” Riff v. Morgan Pharmacy, 508 A2d 1247, 1251 (Pa. Super. Ct. 1986). At a minimum, a pharmacist has a duty to notify the prescribing physician of “obvious inadequacies appearing on the face of the prescription which create [ ] a substantial risk of serious harm to the plaintiff.” Id. at 1252. The Washington Supreme Court delineated this limited duty as follows: “The pharmacist . . . has a duty to accurately fill a prescription [cit.] and to be alert for clear errors or mistakes in the prescription. The pharmacist does not, however, have a duty to question a judgment made by the physician as to the propriety of a prescription or to warn customers of the hazardous side effects associated with a drug, either orally or by way of the manufacturer’s package insert.” (Emphasis supplied and omitted.) McKee v. American Home Products Corp., 782 P2d 1045, 1055-1056 (Wash. 1989). See also Kampe v. Howard Stark Professional Pharmacy, 841 SW2d 223 (Mo. Ct. App. 1992); Nichols v. Central Merchandise, 817 P2d 1131 (Kan. Ct. App. 1991); Stebbins v. Concord Wrigley Drugs, 416 NW2d 381, 387-388 (Mich. Ct. App. 1987).

Decided June 3, 1993 —

Reconsideration denied July 15, 1993 —

Walls & Corlew, Harold D. Corlew, Charles A. Cole, Jr., for Walker.

Webb, Carlock, Copeland, Sender & Stair, Dennis J. Webb, Adam L. Appel, Susan Z. Lembo, for Karp.

Sutherland, Asbill & Brennan, Elizabeth V. Tanis, Laura M. Shamp, for Jack Eckerd Corporation.

In my opinion this limited duty best serves the patient, the doctor and the pharmacist. Although the pharmacist owes a duty to the patient beyond just accurately filling the prescribed medication, the pharmacist is not unduly interjected into the physician-patient relationship. On the other hand, the pharmacist is required to question a prescription which is erroneous or which is irregular on its face, thereby protecting the patient and the physician from physician errors which the patient could not detect but which would be readily apparent to a properly trained pharmacist.

Applying this limited duty to the facts of this case, a material question of fact remains for jury resolution concerning whether dispensing the drug Blephamide “PRN” constitutes such a patent or obvious error that the pharmacist should have contacted the prescribing physician before repeatedly dispensing the medication. The package insert for Blephamide contains the following warning: “Prolonged use may result in glaucoma, with damage to the optic nerve, defects in visual acuity and fields of visions, and in posterior subcapsular cataract formation. Prolonged use may suppress the host response and thus increase the hazard of secondary ocular infection. ... If these products are used for 10 days or longer, intraocular pressure should be routinely monitored....” I would therefore reverse the trial court’s grant of appellee Eckerd’s motion for partial summary judgment.

I am authorized to state that Presiding Judge McMurray and Judge Blackburn join in this dissent.

       As the majority notes, this case does not address the issue of the duty of a pharmacist after January 1, 1993, when new drug review and patient counseling rules adopted by the Georgia State Board of Pharmacy become effective.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A93A0199.
    BENTLEY v. B.M.W., INC. et al.
    (433 SE2d 719)
   Birdsong, Presiding Judge.

Rena M. Bentley appeals from a $95,000 judgment in her favor against B.M.W., Inc. and Chemical Enterprises, Inc. Bentley contends she was rendered totally and permanently disabled from injuries sustained after a tire and wheel came off a tractor trailer for which B.M.W. and Chemical Enterprises were responsible, and struck a van driven by Bentley. At trial, appellees admitted liability, but denied causation and damages because they asserted Bentley did not sustain any injuries in this accident and her medical treatment was unnecessary.

Nevertheless, the jury returned a verdict for $100,000 in Bentley’s favor which was reduced to $95,000 because of the PIP set-off. Bentley now contends the trial court erred by denying her motion for new trial because appellees injected insurance and their financial status in the case. She also claims the trial court erred by allowing expert medical testimony based on medical records which were not admitted in evidence, by allowing appellees to impeach one of her witnesses with a nolo contendere plea for which he was given first offender status, and by allowing two attorneys to argue on behalf of appellees in closing. Held:

1. Bentley’s first and second enumerations of error contend the trial court erred by denying her motion for a new trial because appellees’ counsel in closing argument violated the trial court’s ruling on appellees’ motion in limine that excluded references to a party’s financial status or the availability of insurance. The comments Bentley complains of occurred when appellees’ counsel, in effect, argued that Bentley was involved in two collisions, one with someone with only minimum liability insurance and in which she suffered her injuries and the other with appellees, two out-of-state corporations with greater financial resources, and that even though she was not injured in the collision with appellees, she brought the action against them because of their greater financial resources.

As Bentley did not object to the comments of which she now complains, she relies upon the trial court’s rulings on appellees’ motion in limine to preserve the issues on appeal. See Reno v. Reno, 249 Ga. 855, 856 (295 SE2d 94); Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 285-286 (260 SE2d 20). However, from the transcript of the hearing on the motion, it is difficult to discern the trial court’s ruling on these issues, and to what extent, if at all, the motion was granted. Regarding references to insurance available in the other collision, after a discussion with the trial court, appellees’ counsel, without objection by Bentley, withdrew the motion as it related to insurance available in the other accident. Further, we cannot agree that reference to the third party’s insurance in the other accident was excluded by any general prohibition of insurance in the motion.

The trial court stated: “You know where you are at with the insurance proposition. PLAINTIFF’S COUNSEL: I know. THE COURT: If insurance gets too much involved in this case, you are out. PLAINTIFF’S COUNSEL: I understand that. THE COURT: I think everybody knows that. That is why — PLAINTIFF’S COUNSEL: No problem. THE COURT: It kind of bothers me a little bit you want to come in here and try a case for three days and have it go out the window. [COUNSEL FOR BOTH PARTIES]: No sir.” Thus, it cannot be said that this colloquy clearly prohibited the remarks about which Bentley now complains. Additionally, although counsel for both parties agreed they would not make improper comments about the other’s financial conditions, we find no ruling by the trial court which would prevent appellees from commenting upon their own financial conditions.

Moreover, not all references to insurance or financial conditions of the parties are prohibited. In most instances, evidence of the availability of insurance coverage or financial circumstances is not admissible because neither subject is relevant to any issue in the case. See Northwestern Univ. v. Crisp, 211 Ga. 636, 641 (88 SE2d 26); Goins v. Glisson, 163 Ga. App. 290, 292 (292 SE2d 917). In this case, however, the availability of the third party’s insurance and the financial circumstances of appellees were relevant under appellees’ theory that Bentley brought this action against appellees because of the possibility of a greater recovery. Therefore, the general rule is inapplicable here. See Estfan v. Poole, 193 Ga. App. 507, 510-511 (388 SE2d 373); U-Haul Co. &c. v. Ford, 171 Ga. App. 744, 745 (320 SE2d 868).

Further, the authority cited by Bentley in support of her position is inapposite to the case at bar. This is not a case in which either party introduced evidence of defendants’ liability insurance or collateral sources available to plaintiff. Accordingly, these enumerations of error are without merit.

2. Bentley’s third enumeration of error contends the trial court erred by allowing appellees to introduce expert medical testimony which was based on medical reports and records not admitted in evidence. The transcript shows, however, that this expert witness, a physician, personally examined Bentley and reached certain conclusions based upon this examination. Further, although some of the medical records and reports were not introduced, it is not apparent that the witness based any of his opinions solely on reports which were not in evidence. Indeed, the physicians’ depositions had been read in evidence before this witness testified. Therefore, the witness’ testimony was not objectionable on this basis. See Southern Bell Tel. &c. Co. v. Franklin, 196 Ga. App. 474, 475 (396 SE2d 514). Instead, the witness was asked to make certain assumptions and state his opinion based upon these hypothetical facts. Under the circumstances, we find no error. Further, even if some portion of the testimony was based upon records which were hearsay because they had not been introduced in evidence, this would go to the weight of the evidence and not its admissibility. Doctors Hosp. &c. v. Bonner, 195 Ga. App. 152, 160 (392 SE2d 897). If Bentley was dissatisfied with the basis for the witness’ opinions, this was a proper subject for cross-examination. Felton v. White, 197 Ga. App. 367 (398 SE2d 425).

Decided July 15, 1993.

Agnew, Schlam & Bennett, G. Michael Agnew, Paul E. Schlam, B. T. Edmonds, Jr., for appellant.

Watson, Spence, Lowe & Chambless, Stephen S. Goss, W. Earl McCall, Henry E. Williams, for appellees.

3. Bentley also contends that the trial court erred by allowing appellees to impeach one of her physicians through the use of a nolo contendere plea which was given first offender treatment. We find no error. The record shows that before this conviction was introduced the physician had testified that “the only flaw” he had on his 50-year medical career was an occasion in the early 1970s when his hospital privileges were suspended. Therefore, appellees were entitled to disprove or contradict the doctor’s testimony regarding the “only flaw” in his 50-year career. Hightower v. Gen. Motors Corp., 255 Ga. 349 (338 SE2d 426). Further, Witcher v. Pender, 260 Ga. 248 (392 SE2d 6) held that a first offender record cannot be used to impeach an adverse witness by showing commission of a felony or a crime of moral turpitude and expressly stated that Hightower was not affected by that decision. Id. at 249.

4. Bentley’s final enumeration of error contends that the trial court erred by allowing two attorneys to argue for appellees in closing and by refusing to allow her counsel to state his objection and the grounds. See OCGA § 9-10-182; City of Monroe v. Jordan, 201 Ga. App. 332, 337 (411 SE2d 511). Pretermitting whether the trial court erred, however, Bentley has not demonstrated how this procedure may have harmed her. Therefore, this enumeration provides no ground for reversal. Id.; Bridges v. Schier, 195 Ga. App. 583, 586 (394 SE2d 408).

Judgment affirmed.

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


author: Smith, Judge.

text:
    A93A0802.
    KING v. THE STATE.
    (433 SE2d 722)
   Smith, Judge.

David King was tried before a jury and found guilty of one count of incest and two counts of child molestation for acts committed against his eleven-year-old daughter. One count of molestation was merged with the incest count, and King appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. The trial court allowed the arresting officers to testify that a small plastic container of marijuana was found under the couch in King’s living room during a search incident to his arrest. King contends error in the trial court’s overruling his objections to this testimony made on the grounds that no chain of custody was shown and that such evidence impermissibly placed his character in issue.

It is well established that harmless error will not authorize reversal, McAlister v. State, 204 Ga. App. 259, 262 (419 SE2d 64) (1992), and any error in admitting evidence over objection is rendered harmless by the proper admission of similar evidence to the same effect. Holloway v. State, 201 Ga. App. 204, 205 (3) (410 SE2d 799) (1991). In a taped interview with a police investigator and a DFCS social worker, the minor victim stated that King kept marijuana hidden beneath the couch. Because the tape, including the victim’s statement regarding the marijuana, was played for the jury not only without objection but with the approval of the defense, any error in overruling King’s objection to the investigator’s testimony was harmless.

2. King enumerates as error the trial court’s ruling permitting an arresting officer to testify, over defense objections based on relevancy and on the best evidence rule, that magazine pin-up pictures, which depicted both clothed and nude women, were found in King’s home. The pictures were not introduced into evidence.

(a) “The ‘best evidence’ rule (OCGA § 24-5-4) applies only when the contents of a writing are in issue. ‘Where the existence of a fact is the question at issue and not the contents of a writing, then oral and written evidence of the fact may both be primary evidence. (Cit.)’ [Cit.]” Denson v. State, 149 Ga. App. 453, 455 (2) (254 SE2d 455) (1979). In this situation, an objection based on the best evidence rule was not well taken and was properly overruled.

(b) King asserts that the prejudicial nature of the testimony about finding the pictures outweighed any probative value. He argues that the testimony was not relevant to the crimes charged because the pictures did not depict children, and the material was not even seized when found by the officers.

With regard to allegations of illegal sexual conduct, this court has repeatedly held that possession of such items is relevant to show “state of mind and lustful disposition.” Stamey v. State, 194 Ga. App. 305, 307 (2) (390 SE2d 409) (1990). We agree with King that interest in sexual activity does not necessarily point to deviant behavior, even circumstantially. As this court pointed out in Helton v. State, 206 Ga. App. 215 (424 SE2d 806) (1992), “[t]he true issue is whether the evidence sought to be excluded by the defendant is admissible to show [his] bent of mind toward the sexual activity with which he was charged or [his] lustful disposition. [Cits.]” Id. at 216-217. However, applying the prior decisions by the court, we are unable to say that an inference could not be made as to King’s state of mind from the presence in his home of the pictures. Accordingly, the trial court did not err in allowing his testimony. See Stamey, supra at 307-308 (2).

3. Over King’s objection, the trial court allowed the State to use a certified copy of King’s prior conviction for theft of auto parts in cross-examining a character witness called by King. King contends this ruling was error.

The witness involved was a neighbor of King’s. King called her to the stand and attempted to question her as to her knowledge of the victim’s general reputation for veracity in the community. However, he first asked her whether she had ever discussed the victim with other people in the community, and she denied that she had. When defense counsel then asked the witness if she had any knowledge as to the victim’s reputation for veracity in the community, the trial court sustained an objection to this line of questioning made by the State on the ground that no proper foundation had been laid.

Despite this ruling by the trial court, defense counsel persisted in questioning the witness, asking her whether her “female children had been around” King, to which the witness gave a rambling reply recounting numerous ways in which King had been a help to her family and generally depicting him as a fine person. Outside the presence of the jury, the State then sought permission to cross-examine the witness using a certified copy of King’s 1977 conviction for theft of auto parts. The State argued that King, through the testimony of this witness, had placed into evidence testimony regarding his good character, and the state therefore should be allowed to use the prior conviction to mitigate or counteract this impression. The trial court agreed that King had put his character in issue and permitted the State to introduce the conviction for cross-examination purposes. We find no error.

Testimony resulting from mere inadvertence will not be construed as placing in issue the defendant’s character. A defendant must make a deliberate election to place his good character in evidence. See Jones v. State, 257 Ga. 753, 758 (1) (363 SE2d 529) (1988); Ledford v. State, 202 Ga. App. 694, 696 (1) (415 SE2d 693) (1992). King’s stated purpose for calling this witness was to discredit the victim by showing she had a reputation for lying. Although the testimony given may not have authorized a charge on good character, see Johnson v. State, 261 Ga. 419, 420 (4) (405 SE2d 686) (1991), we cannot say that the testimony was “inadvertent.” The defense continued questioning the witness despite having failed to lay the required foundation for the reputation testimony it had sought. We can conceive of no purpose, nor has King offered one, for the continued questioning of the witness along the lines taken, other than a deliberate effort to show that King was a person of good character with whom others trusted their female children.

Decided July 15, 1993.

Dickinson, Noel & Peeples, David F. Dickinson, for appellant.

Alan A. Cook, District Attorney, William K. Wynne, Jr., Assistant District Attorney, for appellee.

Whether a statement making reference to the defendant’s good character is merely inadvertent or manifests a conscious election is a question of fact, determined primarily upon the trial court’s assessment of the intent of the accused and his counsel. Such factual and credibility determinations are generally accorded great deference by a reviewing court. See Mann v. State, 196 Ga. App. 730, 731 (3) (397 SE2d 17) (1990) (motion to suppress); George v. State, 262 Ga. 436, 437 (2) (421 SE2d 67) (1992) (whether State has rebutted prima facie showing of Batson violation); Yearwood v. State, 198 Ga. App. 389 (2) (401 SE2d 558) (1991) (voluntariness of custodial statement). Given the circumstances here, we do not find clearly erroneous the trial court’s determination that a conscious election had been made by the accused or counsel to put forward evidence of King’s good character.

4. The count of child molestation for which appellant was convicted alleged that he did the indecent and immoral acts of lifting his minor daughter’s nightgown and lying on top of her. Although these acts immediately preceded the incestuous act of intercourse between father and daughter, the trial court correctly determined that they did not merge as a matter of fact by operation of OCGA § 16-1-7 (a) (1). “Under the evidence, two sequential but entirely separate crimes were committed against the same victim and a conviction and sentence for both crimes was authorized. [Cit.] ” Stroud v. State, 193 Ga. App. 82, 83-84 (4) (387 SE2d 37) (1989).

Judgments affirmed.

Johnson and Blackburn, JJ., concur.


author: Cooper, Judge.

text:
    A93A0844, A93A0845.
    JONES et al. v. WALKER et al.; and vice versa.
    (433 SE2d 726)
   Cooper, Judge.

This appeal and cross-appeal arise out of an action for personal injuries resulting from a collision between two horses entered in the Georgia Hunter Jumper Horse Show. The trial court’s partial grant and denial of summary judgment motions form the basis for these appeals.

Appellants are the parents of a minor daughter who was severely injured when the horse she was riding collided with Jock’s Joy, a horse owned by appellee Diane Walker (“Mrs. Walker”) and ridden by Elizabeth Warmington (“Warmington”). The collision occurred in a warm-up ring where both horses were being ridden prior to the beginning of the horse show. Although the warm-up ring was crowded with other horses, there was no one present to control the flow of horses into, out of, and around the ring. As Jock’s Joy completed one of his practice jumps, he collided with the horse ridden by appellants’ daughter.

In June 1990, appellants filed a lawsuit against the operators of the horse show, the horse show association, Warmington, Mrs. Walker and her husband. The operators of the horse show and the horse show association subsequently entered into a settlement agreement with appellants, and the action was dismissed with prejudice as to those defendants. Mr. and Mrs. Walker are the only appellees, and the case remains pending as to Warmington.

Appellants alleged that Warmington was negligent in causing the collision and that appellees were vicariously liable for the actions of their employee or agent, Warmington. The deposition testimony of Mrs. Walker and Warmington reveals that Mrs. Walker and Warmington had a business relationship whereby Warmington provided various horse boarding services for Jock’s Joy in exchange for a monthly fee. Although the decision to enter the horse show was made jointly by Warmington and Mrs. Walker, Warmington was a more experienced rider than Mrs. Walker, and it was decided that Warmington would ride Jock’s Joy during the show. Warmington made the decisions about the manner in which Jock’s Joy would be ridden, how much warmup he needed and the manner in which the warmup would be conducted. The evidence also reflects that during the warmup, Warmington exercised complete control over Jock’s Joy. Appellees moved for summary judgment on the grounds that Warmington was an independent contractor. Appellants amended their complaint to allege direct negligence on the part of Mrs. Walker in allowing her horse to participate in the horse show under dangerous conditions. The amended complaint further alleged that Mr. Walker was vicariously liable for the direct negligence of Mrs. Walker. In November 1991, the trial court granted partial summary judgment to appellees on the issue of vicarious liability for the negligence of Warmington and denied summary judgment to appellees on the issues related to the direct negligence of Mrs. Walker. Appellants did not appeal the grant of partial summary judgment against them, and the trial court denied appellees’ request for a certificate of immediate review from the court’s partial denial of their motion for summary judgment.

In February 1992, appellants filed the following: a motion for reconsideration of the order granting partial summary judgment to appellees on the vicarious liability issues; an amended complaint which alleged that under the master/servant theory, appellees were liable for the negligent acts of Warmington and also that Mr. Walker was liable under the family purpose doctrine; and a motion for partial summary judgment on the vicarious liability issues. Appellees filed a motion to reconsider the November 1991 order which denied summary judgment on the issue of Mrs. Walker’s direct negligence. As the judge who entered the November 1991 order was no longer handling the case, the subsequent motions were orally argued before another judge. Following the hearing, the new trial judge entered an order finding that appellants had not set forth any new facts supporting a finding that Warmington was not an independent contractor and that the first judge had properly entered summary judgment for appellees on the issue of vicarious liability. The judge also found that an issue of fact remained as to Mrs. Walker’s direct negligence but further ruled that there was no basis for an action against Mr. Walker and dismissed the case as to Mr. Walker. Accordingly, in an order entered September 21, 1992, the trial court denied appellants’ motion for reconsideration of the November 1991 order, denied appellants’ motion for partial summary judgment on the issue of vicarious liability and denied appellees’ motion for reconsideration of the November 1991 order as to Mrs. Walker. The trial court’s order stated that the action would proceed against Warmington and Mrs. Walker on the theory of their individual and direct negligence.

Case No. A93A0844

1. In Case No. A93A0844, appellants appeal from the September 1992 order granting summary judgment to Mr. Walker and denying appellants’ motion for reconsideration and motion for partial summary judgment. Appellants also purport to appeal from the November 1991 order granting partial summary judgment to appellees on the issue of vicarious liability for Warmington’s negligence. However, since that order was directly appealable (see OCGA § 9-11-56 (h)) but was not appealed within 30 days after it was entered (OCGA § 9-11-56 (h)), it can now only be appealed after a final judgment has been entered. Olympic Dev. Group v. American Druggists’ Ins. Co., 175 Ga. App. 425 (1) (333 SE2d 622) (1985). Furthermore, “ ‘ “[i]t has repeatedly been held that ... a motion for reconsideration does not extend the time for filing a notice of appeal. . . .” (Cits.)’ [Cit.]” Cleveland v. Fulton County, 196 Ga. App. 168, 170 (2) (396 SE2d 2) (1990). Moreover, appellants’ motions for reconsideration and partial summary judgment raise the exact same issues of vicarious liability which were previously decided in the trial court’s order granting partial summary judgment to appellees. Consequently, review of the denial of those motions would effectively allow appellants to circumvent Olympic. We thus conclude that, because they present identical issues, appellants’ appeal from the deniál of their motions for reconsideration and partial summary judgment as well as from the 1991 order granting partial summary judgment to appellee must be dismissed.

Decided July 15, 1993.

Smolar, Roseman, Brantley & Seifter, Yehuda Smolar, Barry L. Roseman, Thomas A. Rice, for appellants.

Saveli & Williams, John C. Parker, Brian J. Buckelew, for appellees.

2. In what remains of their appeal, appellants contend that the trial court erred in granting summary judgment to Mr. Walker under their theory that Mr. Walker was vicariously liable for the direct negligence of Mrs. Walker and for the negligence of Warmington under the family purpose doctrine. The evidence reflects that Mr. Walker gave Jock’s Joy to Mrs. Walker as a gift and had no other involvement with the horse other than to pay bills for the upkeep of the horse. Mr. Walker did not exercise any control over the horse at any time and considered the horse to be the exclusive property of Mrs. Walker. Appellants’ reliance on the family purpose doctrine is misplaced inasmuch as that doctrine has only been applied in the automobile context, and we decline to extend it to cases involving animals. Moreover, the evidence does not support appellants’ contention that Jock’s Joy was maintained for a family purpose. See Keith v. Carter, 172 Ga. App. 588 (323 SE2d 886) (1984).

Case No. A93A0845

3. In her cross-appeal, Mrs. Walker contends that she was entitled to judgment as a matter of law on the issue of her direct negligence. The evidence revealed that Mrs. Walker had some experience with horses and horse shows, that she knew the warm-up ring was crowded and that she thought it looked dangerous. Considering those facts, we conclude that there was a question of fact regarding whether Mrs. Walker, as the owner of Jock’s Joy, was negligent in allowing her horse to continue participating in the horse show. Accordingly, summary judgment was not appropriate. See Harvey v. McLaughlin, 198 Ga. App. 105 (1a) (400 SE2d 635) (1990).

In Case No. A93A0844, judgment affirmed in part, appeal dismissed in part. In Case No. A93A0845, judgment affirmed.

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


author: Andrews, Judge.

text:
    A93A0129.
    NOWAK v. HIGH.
    (433 SE2d 602)
   Andrews, Judge.

Appellant Nowak appeals the dismissal of her complaint in her lawsuit for medical malpractice against Dr. Thomas High.

Most of the facts relevant to this appeal are undisputed. On October 29, 1991, Nowak filed a complaint against Dr. High, alleging that he had directed that she receive an injection of phenergan in the right gluteus because of her complaints of nausea. According to the complaint, High, or his staff, negligently injected the drug into Nowak’s lower hip area, as a result of which she sustained injuries. The complaint alleges that High’s treatment was negligent in that the injection was made into the lower, instead of upper hip area.

Attached to the complaint was the affidavit of Marilyn Whited, a registered nurse, who had also received a master’s degree in nursing. She stated in her affidavit that she had reviewed the medical records and was familiar with the standard of care exercised with regard to the nursing practice. She then stated: “[T]he giving of shots of phenergan is typically a function performed by registered nurses, although medical doctors are also competent to administer such injections by virtue of their training and experience. By virtue of my training and experience, I am familiar with the standard of care exercised in the United States for the giving of injections of phenergan, as well as the standard of care exercised in the medical community in the United States for performing such injections.”

The affiant states that the giving of deep intramuscular injections is common, although it is necessary to avoid giving those injections in areas of high nerve density in order to avoid nerve damage. In Whited’s opinion, the injection was given in a dangerous area and should have been given in a higher region of the hip. Whited opines that by giving the injection in the lower hip region, Dr. High’s treatment of Nowak fell beneath the standard of care exercised in the medical community and constituted medical negligence.

High filed an answer to the complaint and then a motion to dismiss in which he argued that Whited’s affidavit was insufficient under OCGA § 9-11-9.1. He contended that as a nurse, Whited was incompetent to testify against him and that her affidavit contained no proof that the two differing schools of expertise were the same in the area of giving phenergan injections.

In response to the motion, Nowak filed a second affidavit of Whited. In this affidavit, Whited clearly set forth the fact that the practice of giving shots of phenergan is the same for nurses and doctors. High argued that, pursuant to Cheeley v. Henderson, 261 Ga. 498 (405 SE2d 865) (1991), the defect in Whited’s original affidavit was not curable by amendment.

Citing Milligan v. Manno, 197 Ga. App. 171 (397 SE2d 713) (1990), and Sandford v. Howard, 161 Ga. App. 495 (4) (288 SE2d 739) (1982), the trial court granted the motion to dismiss pursuant to OCGA § 9-11-9.1 (a), because of its determination that there was insufficient proof in Whited’s affidavit that the method of giving phenergan injections was the same for nurses and physicians. Thus, the trial court concluded, Whited’s affidavit was not within the exception to the general rule that a member of a school of practice other than that to which the defendant belongs is not competent to testify against such a defendant. In her sole enumeration of error, Nowak contends that the affidavit was sufficient and that the trial court erred in granting the motion to dismiss.

Our first step in analyzing Nowak’s contentions is to scrutinize carefully the complaint’s allegations against High. The allegation of negligence was that High, either individually or acting through his servants and staff, negligently injected phenergan into Nowak’s right gluteus. The complaint alleges that the administration of the injection was negligent; there is no contention that High’s direction that the injection be given in the right gluteus was negligent.

We are aware that there are some instances in which a nurse is competent to testify against a doctor. In McCormick v. Avret, 154 Ga. App. 178 (267 SE2d 759), aff’d Avret v. McCormick, 246 Ga. 401 (271 SE2d 832) (1980), “this court held and our Supreme Court agreed it was error for the trial court not to qualify a nurse as an expert witness concerning what constitutes reasonable care in keeping sterilized a needle used to draw blood from a patient because there was no evidence that the drawing of blood is a medical treatment exclusively within the professional skills of medical doctors.” Tye v. Wilson, 208 Ga. App. 253, 254 (430 SE2d 129) (1993). In McCormick, the Supreme Court stated: “A nurse may or may not be qualified to state an inference as to a medical or surgical matter according to the extent of his or her training and experience and the subject of the inference.” (Citation and punctuation omitted.) Id. at 401. In Tye, supra, this court addressed the opposite situation, and concluded that because of their overlapping expertise, a doctor was competent to give an affidavit against a nurse in a malpractice suit against a nurse, involving the care and treatment of the post-operative, intubated patient.

The question presented here is whether there is sufficient proof of overlapping expertise to establish that nurse Whited was competent to give the affidavit against High, a medical doctor. “ ‘The 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.’ ” Milligan, supra at 171, citing Sandford, supra. “[I]n Sandford, this court went on to carve out an exception to the general 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.’ ” Milligan, supra at 171.

Contrary to the trial court’s holding, we conclude that Whited’s affidavit was sufficient proof that the methods of treatment for the giving of phenergan injections by nurses and doctors are the same. In her affidavit, Whited clearly states that she is familiar with the standard of care regarding the giving of phenergan injections in both the nursing profession and in the medical profession generally, and that Dr. High’s performance in this regard fell beneath the standard of care in the medical profession. Although she does not explicitly state that the method of giving the shots for doctors and nurses is the same, Whited sets forth the evidence which shows that she, through education, training, and experience has peculiar knowledge concerning this particular area of overlapping expertise. See Hicks v. Mauldin, 190 Ga. App. 660 (4) (379 SE2d 806) (1989) (osteopathic pediatrician was competent to testify as an expert in a medical malpractice trial against an allopathic general practitioner when there was testimony that there was no difference in the way the two would have treated the patient); compare HCA Health Svcs. of Ga. v. Hampshire, 206 Ga. App. 108, 111 (424 SE2d 293) (1992) (affidavit of allopathic physician was insufficient against osteopathic appellants because it contained no evidence regarding the methods of treatment so as “to establish ‘a professional overlap of expertise in at least one matter alleged by (appellees) to constitute malpractice’ ”); Chandler v. Koenig, 203 Ga. App. 684 (417 SE2d 715) (1992) (affidavit of pharmacologist in medical malpractice suit against physician was insufficient since areas of overlapping expertise were not clearly set forth); Milligan, supra (osteopathic physician’s affidavit insufficient in action against allopathic physician since it contained no evidence that the methods of treatment of plaintiff’s condition were the same); Bethea v. Smith, 176 Ga. App. 467 (2) (336 SE2d 295) (1985) (affidavit of podiatrist in medical malpractice action against orthopedic surgeon that he was familiar with the medical profession generally was insufficient where there was no showing of overlapping expertise); Piedmont Hosp. v. Milton, 189 Ga. App. 563 (377 SE2d 198) (1988) (affidavit of medical doctor insufficient in action against nursing personnel in part because it did not establish that doctor was an expert competent to testify regarding nursing).

Decided June 8, 1993 —

Reconsideration denied July 16, 1993 —

The Koski Firm, Robert C. Koski, Steven I. Goldman, for appellant.

Here, as in Sandford, the affidavit itself shows that the practice of giving phenergan injections is shared by the nursing and medical professions, and is an area in which the professions overlap. The instant situation differs from the cases reaching the opposite result listed above in that Whited’s affidavit demonstrates her familiarity with the practice of giving injections. Her affidavit is not critical of High’s direction that the injection be given, but is critical of the implementation of that directive. The administration of doctors’ orders regarding medication is the province of registered nurses; in fact, OCGA § 43-26-3 (6) specifically includes within the definition of the practice of nursing “the administration of medication and treatments as prescribed by a physician practicing medicine in accordance with Article 2 of Chapter 34 of this title. . . .”

Clearly, the instant case is not one of simple negligence, and it involves a medical question. See Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200 (2, 3) (345 SE2d 904) (1986); Chafin v. Wesley Homes, Inc., 186 Ga. App. 403 (1) (367 SE2d 236) (1988); Sparks v. Southwest Community Hosp. &c. Center, 195 Ga. App. 858 (395 SE2d 68) (1990); compare Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107 (354 SE2d 872) (1987). Nonetheless, the allegations of negligence do not involve Dr. High’s professional medical judgment that an injection of phenergan was appropriate; rather the allegations concern the implementation of that directive. Given the statutory definition of the practice of nursing, which encompasses the giving of injections; the averments of Whited’s affidavit; and Nowak’s allegations of negligence, we conclude that the affidavit was sufficient and the trial court’s dismissal of the complaint was improper. Because of our conclusion regarding the sufficiency of the affidavit, we need not address Nowak’s additional arguments.

Judgment reversed.

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

Webb, Carlock, Copeland, Sender & Stair, Thomas S. Carlock, Brian R. Neary, for appellee.

       It is not clear from the record before us whether High or one of his staff administered the injection. To the extent that this allegation includes nurses, the trial court’s dismissal might be erroneous. Nevertheless, appellant does not raise this argument and, accordingly, we will not address it.

       With regard to a nurse’s expertise generally, see OCGA § 43-26-1 et seq., which specifically provides that nurses may administer medications and treatments as prescribed by a physician practicing medicine. In this regard see also Miller v. Med. Assn. of Ga., 262 Ga. 605 (423 SE2d 664) (1992) (holding that revisions to OCGA § 43-34-1 are unconstitutional in part because of the implication from the statute that nurses cannot give shots).


text:
    A93A0161.
    SMITH v. THE STATE.
    (433 SE2d 694)
   Birdsong, Presiding Judge.

Jerry Smith appeals his conviction of armed robbery at a dry cleaners. The evidence shows a black woman and a black man came to the dry cleaners, asked for an employment application, stayed in the cleaners for several minutes, and then left taking the application with them. Shortly thereafter, the black man returned with the application, used the bathroom, and after mumbling something about the application he announced he had a gun and grabbed an assistant manager by the arm. The robber asked for money, and after taking money from the cash register, he fled.

The assistant manager could not testify definitely the man had a gun because the man kept his hand in his pocket. Nevertheless, he believed the man had a gun and it appeared that the hand in the pocket was gripping something.

The assistant manager testified that because of his fear, he did not look closely at the robber’s face. Instead, he looked at the man’s hand and noticed that the man was wearing a distinctive, homemade silver ring. Later, the assistant manager identified, as this ring, one that had been taken from Smith by the police.

An employee, who was working when the woman and man were in the store seeking the employment application and when the store was robbed, gave the police the name of the woman who was in the store. She also described the robber as a real dark and real black man. When the police contacted the woman who was in the store earlier, she told the police that Smith was the man with her. When the police contacted Smith, he was wearing a ring similar to the one described by the assistant manager.

With Smith’s consent, the police took photographs of Smith and used them to assemble a photographic lineup. Although the assistant manager did not identify Smith from the photographic lineup but identified another person, the store employee identified Smith. Smith was apprehended and his ring seized.

At trial both the assistant manager and the employee testified about these events. The employee testified that she had identified Smith from the photographic lineup and also made an in-court identification. Subsequently, Smith was convicted and sentenced to nine years in prison with six to serve and the remainder on probation.

On appeal, Smith contends the trial court violated OCGA § 17-8-57 by expressing or intimating an opinion as to what had been proved by the State, and also contends the trial court erred by admitting evidence of Smith’s out-of-court and in-court identifications and by failing to give his requested charge on the definition of an offensive weapon. He also asserts that he was denied the effective assistance of counsel and that the evidence was insufficient to establish his guilt of the crime of armed robbery beyond a reasonable doubt. Held:

1. Smith’s first contention is that the trial court charged the jury to find Smith guilty of Count 1 and eliminated the lesser included offense of robbery by intimidation by. removing the reasonableness of the victim’s apprehension from the jury’s consideration. This contention is based upon the charge that Smith could be convicted of armed robbery with an offensive weapon if the jury found that the robbery was committed by simply using his hand in his pocket to simulate a pistol. Therefore, he contends that the jury was precluded from finding Smith guilty of robbery by intimidation.

We find no violation of OCGA § 17-8-57. The jury was charged that “a person commits the offense of armed robbery when, with the intent to commit theft, he takes property of another from the person, or the immediate presence of another, by the use of an offensive weapon or by the use of any replica, article, or device having the appearance of an offensive weapon.” The jury was then charged that the presence and use of an offensive weapon or a replica thereof might be proven by circumstantial evidence even though the weapon or replica was neither seen nor accurately described. The trial court then charged the jury that “a replica having the appearance of an offensive weapon means any reasonable belief on the part of the victim that an offensive weapon is present, which is obtained by the victim through the use of . . . his senses.” (Emphasis supplied.) In view of this correct charge, we find Smith’s contention regarding the reasonableness of the victim’s belief to be without merit.

Smith further asserts that the trial court’s explanation of the use of the verdict form also violated OCGA § 17-8-57. We find no such defect. The instructions were couched in terms of actions to be taken if the jury found certain facts, and the trial court did not state or intimate what had been proven. Trull v. State, 221 Ga. 442 (145 SE2d 242).

2. Smith also contends the evidence was insufficient to establish that a weapon was used in the robbery. We have examined the transcript and find the evidence sufficient within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). As long as the victim had a reasonable apprehension that an offensive weapon was used, it is not necessary that he actually see the weapon. Johnson v. State, 195 Ga. App. 56, 57 (392 SE2d 280). In this case the victim’s testimony that he believed the robber’s statement that he had a gun and that he saw the perpetrator’s hand in his pants pocket as if he had a gun was sufficient.

3. Smith also contends his trial defense counsel was inadequate and ineffective because he failed to interview personally and secure the attendance of an essential witness, the woman Smith allegedly accompanied to the dry cleaners. Smith had the burden of establishing that his trial defense counsel’s performance was deficient and that the deficient performance prejudiced his defense. Brown v. State, 257 Ga. 277, 278 (357 SE2d 590). His burden was to show there was a reasonable probability the result of'his trial would have been different, but for his defense counsel’s unprofessional deficiencies (Baggett v. State, 257 Ga. 735 (363 SE2d 257)), and in doing so must overcome the strong presumption that the representation was effective. Clarington v. State, 178 Ga. App. 663, 667 (344 SE2d 485).

The transcript of the hearing conducted on counsel’s alleged inadequacy shows that the witness was interviewed on behalf of the defense by two students from the legal aid clinic after defense counsel was unsuccessful in his attempts to see her; and that the witness was subpoenaed as a State’s witness and had already informed the police that Smith was the person with her at the scene of the crime. Moreover, Smith testified that his trial defense counsel emphasized to Smith that he believed the witness would hurt Smith’s case. Significantly, Smith did not assert that this witness would provide him with an alibi or other defense. Instead, Smith testified repeatedly he wanted the witness to testify so he could see what she had to say. Under these circumstances, we do not find counsel’s performance was inadequate within the meaning of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674). “In the absence of testimony to the contrary, counsel’s actions are presumed strategic. [Cit.]” Earnest v. State, 262 Ga. 494, 496-497 (422 SE2d 188). Judgmental and tactical errors do not always equate ineffective assistance of counsel. Clarington, supra. Although another trial defense counsel may have called this witness if indeed she could have been located, or might have pursued a different strategy, this does not constitute denial of the effective assistance of counsel. Heard v. State, 177 Ga. App. 802, 804 (341 SE2d 459). Further, this witness could not be located and did not appear at trial even though subpoenaed by the State, and it does not appear that trial defense counsel could have produced her.

4. Smith contends that his out-of-court and in-court identifications were tainted because of his out-of-court identification was based upon an impermissibly suggestive photographic lineup. His contention is based on the witness’ telling the investigators that the man who robbed the store was “real, real dark and real black” and had a “dark complexion,” and both the witness and the police officer testifled that Smith was the person in the photographic lineup with the darkest complexion. Conversely, the police officer who prepared the photographic lineup testified that he made an effort to avoid any suggestiveness in the lineup, and attempted to put photographs in the lineup of individuals with hair cut and facial hair similar to Smith’s. Additionally, the officer testified he told the witness he was not obliged to identify anyone from the photographic lineup, that the officer could not say whether the suspect was in the lineup or not.

One of the difficulties with Smith’s argument is that while the police might be expected to make a good faith effort to duplicate his skin color, Smith has presented no authority that a failure to match complexions requires reversal. Instead, the test “is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” McCoy v. State, 190 Ga. App. 258, 260 (378 SE2d 888). The considerations in evaluating the likelihood of misidentification include: (a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness’ degree of attention, (c) the accuracy of the witness’ prior description of the criminal, (d) the level of certainty demonstrated by the witness at the identification, and (e) the length of time between the crime and the identification. Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401); McCoy v. State, supra. In this instance, the witness testified she saw Smith when he entered the store the first time with the woman and at that time the woman called to the witness and attracted her attention. She further testified that when Smith returned to the store she knew he was the same man who had been there earlier because she got a good look at him the first time, and when he returned he aroused her suspicion because he was looking around as if to see if anyone was in the cleaners. Further, she testified that Smith twice passed very close to her. We conclude that under the “totality of the circumstances,” Neil v. Biggers, supra, the procedures used in this case were not so impermissibly suggestive as to cause a very substantial likelihood of irreparable misidentification.

Assuming arguendo that some taint occurred in the pretrial identification, a witness’ in-court identification may be admitted if it has an “independent origin.” McCoy v. State, supra. See Jones v. State, 258 Ga. 25, 27 (365 SE2d 263). We find the circumstance in which the witness observed Smith, that the witness’ in-court identification had an independent origin.

5. Smith asserts that the trial court erred by refusing his written request to charge the jury on the definition of an offensive weapon. He contends the jury hád no guidance on whether the evidence was sufficient to establish use of an offensive weapon. We find no error. The charge given advised the jury of the applicable law, and the trial court is not required to instruct on the meaning of all words used in the charge, particularly words of common understanding. Floyd v. State, 193 Ga. App. 17 (387 SE2d 16). Further, the jury was not required to find the actual presence of an offensive weapon as long as they were convinced beyond a reasonable doubt that defendant employed a replica having the appearance of an offensive weapon so as to create a reasonable apprehension on the part of the victim that it was an offensive weapon. See Johnson v. State, supra. Additionally, the requested charge defined an offensive weapon as one which if used in its usual and accustomed manner is likely to produce death. As weapons likely to produce bodily injury can be offensive weapons (Hambrick v. State, 174 Ga. App. 444, 445 (330 SE2d 383)), this charge was incorrect and the trial court did not err by refusing to give it. A request to charge itself must be correct, legal, apt, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper. Mattox v. MARTA, 200 Ga. App. 697, 699 (409 SE2d 267).

Decided July 1, 1993 —

Reconsideration denied July 16, 1993 —

J. Hue Henry, for appellant.

Harry N. Gordon, District Attorney, Richard L. Dickson, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A93A0190.
    PROGRESSIVE PREFERRED INSURANCE COMPANY v. J. B. BROWNER et al.
    (433 SE2d 401)
   Andrews, Judge.

This action is one for declaratory judgment which appellant Progressive Preferred Insurance Company filed to determine its responsibilities under an automobile liability insurance policy issued to appellee/defendant J. B. Browner. Progressive appeals the trial court’s grant of summary judgment.

Progressive filed its complaint on July 8, 1991 against J. B. Browner, Grace King Browner and Geraldine Simmons. The complaint alleged that J. B. Browner was the named insured under the liability policy issued by Progressive on May 27, 1989. According to the complaint, the policy included an endorsement which specifically excluded coverage for Browner’s spouse, Grace Browner.

On or about September 8, 1989, Grace Browner was involved in an automobile accident with Geraldine Simmons. As a result of that accident, Simmons filed a tort action against both J. B and Grace Browner.

Progressive sent the Browners a reservation of rights letter, entered a defense on the Browners’ behalf, and filed the declaratory judgment action to determine whether there was coverage under its policy to Ms. Browner.

On August 16, 1991, Cotton States Mutual Insurance Company, the uninsured/underinsured motorist carrier for Simmons, moved to intervene in the action; the court subsequently granted the motion. On October 30, 1991, Cotton States moved for summary judgment, alleging that Progressive was obligated to insure Grace Browner. Cotton States claimed that at the time of the collision, Browner was driving a vehicle which was listed as an insured vehicle on the policy and that the named driver exclusion was void as against public policy. Cotton States contended that Progressive was required to provide minimum mandatory coverage for Browner. In the alternative, Cotton States argued that the policy was ambiguous and ought to be construed as providing coverage.

Progressive filed a cross-motion for summary judgment, seeking to enforce the exclusion. With its motion, Progressive filed the affidavit of an insurance agency vice president in which she identified various documents regarding Browner’s policy. Attached to her affidavit was a document entitled: “ENDORSEMENT EXCLUDING SPECIFIED OPERATOR(S) AND PARTIAL REJECTION OF COVERAGE.” That document states: “In consideration of the premium charged for the policy to which this endorsement is attached, it is agreed that Bodily Injury and Property Damage, Comprehensive and Collision insurance afforded by this policy shall not apply with respect to any claim arising from accidents which occur while the automobile described in the policy or any other automobile to which the terms of the policy are extended is being driven or operated, either with or without the permission of the named insurer, by: Grace, H. Browner, 53, Wife.”

Below this paragraph the document further states: “[t] his endorsement is issued as a means of reducing your premium by ex[c]luding driver(s) who would otherwise be rated on the policy. The named insured accepts this endorsement and confirms the acceptance as witness his signature.” The document is signed by J. B. Browner and dated May 27, 1988.

Also attached to the affidavit are the declarations pages on J. B. Browner’s policy from May 1988 to May 1990, which list Grace Browner as a driver excluded from coverage under the policy. A second endorsement excluding Grace Browner from the policy issued on May 29, 1989.

The trial court granted Cotton States’ motion for summary judgment to the extent of minimum liability coverage and denied Progressive’s cross-motion. In its order, the trial court, citing Smith v. Southeastern Fidelity Ins. Co., 258 Ga. 15 (365 SE2d 105) (1988), found that the “policy seeks to reduce the coverage required by statute, and as such the exclusion is unenforceable.” In doing so the trial court was not required to, and did not, reach the ambiguity issue. In its sole enumeration of error, Progressive argues that the trial court erred by granting Cotton States’ motion for summary judgment and denying its motion. Progressive contends that the named driver exclusion in its policy was not violative of public policy.

We agree. The trial court’s grant of Cotton States’ motion for summary judgment and its conclusion that the named driver exclusion in this liability policy was unenforceable was erroneous. First, the express arid unambiguous terms of the exclusion endorsement attached to the Progressive policy relieved the insurance company from any liability for accidents occurring while Browner’s wife was driving. See Nelson v. Southern Guaranty Ins. Co., 221 Ga. 804 (147 SE2d 424) (1966). The public policy of this State does not always prohibit such an exclusion endorsement. Indeed, “since Georgia law does not require liability insurance in every case, we have concluded that exclusions are not per se prohibited but must be individually evaluated to determine whether they are against public policy.” Southern Guaranty Ins. Co. v. Preferred Risk Mut. Ins. Co., 257 Ga. 355, 356 (359 SE2d 665) (1987).

In this case, the exclusion did not attempt to exclude coverage based on the particulars of how the accident occurred, or based on the manner of Grace Browner’s driving, see Smith, supra; Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335 (329 SE2d 136) (1985); it simply removed her completely from the category of “insured.” See Patterson v. Commercial Union Ins. Co., 151 Ga. App. 86 (1) (258 SE2d 748) (1979). Furthermore, there is uninsured motorist coverage for the claims in this case and the public policy considerations outlined in Cotton States Mut. Ins. Co. v. Neese, supra, were met. See generally Travelers Ins. Co. v. Progressive Preferred Ins. Co., 193 Ga. App. 864 (389 SE2d 370) (1989); compare Stepho v. Allstate Ins. Co., 259 Ga. 475 (1) (383 SE2d 887) (1989). Finally, the endorsement reflects that the insured’s agreement to the restrictive endorsement was supported by consideration. See Miley v. Fireman’s Fund Ins. Co., 176 Ga. App. 527 (336 SE2d 583) (1985); Fountain v. Atlanta Cas. Co., 204 Ga. App. 165 (3) (419 SE2d 67) (1992). Given the facts of this case, the exclusion was valid.

Cotton States argues that OCGA §§ 33-34-4 and 40-9-37 mandate coverage here. We find no language in either statute which prohibits the exclusion in this situation. Similarly, for several reasons, Cotton States’ reliance on Crews v. Allstate Ins. Co., 188 Ga. App. 646 (373 SE2d 782) (1988) and other cases involving no-fault coverage is misplaced. See generally Ramsdell v. State Auto Mut. Ins. Co., 206 Ga. App. 357 (425 SE2d 661) (1992).

Decided June 29, 1993 —

Reconsideration denied July 16, 1993 —

Forrester & Brim, James E. Brim III, for appellant.

Greer, Klosik & Daugherty, William L. Swank II, McClure, Ramsay & Dickerson, John A. Dickerson, Dale P. Smith, for appellees.

Despite our conclusion that summary judgment was erroneously granted to Cotton States, we cannot conclude that summary judgment was erroneously denied to Progressive. Progressive does not counter Cotton States’ argument that the policy terms and terms of the exclusion created an ambiguity. Furthermore, the Progressive insurance policy is not contained in the record and in the absence of this evidence, we are unable to reach that issue. Accordingly, in the present posture of the case, the trial court’s denial of Progressive’s motion for summary judgment was proper.

Judgment affirmed in part, reversed in part.

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


text:
    A93A0378, A93A0379.
    CITY OF CALHOUN v. NORTH GEORGIA ELECTRIC MEMBERSHIP CORPORATION; and vice versa.
    (433 SE2d 698)
   Birdsong, Presiding Judge.

The City of Calhoun appeals from the grant of summary judgment to North Georgia Electric Membership Corporation in the City’s efforts to collect a franchise fee from North Georgia EMC pursuant to City Ordinance No. 361. The trial court found that the City could not collect a franchise fee in this case because there was no franchise agreement between the parties. Although prevailing on the merits, North Georgia EMC cross-appeals the trial court’s denial of the motion for summary judgment to the extent the motion contended the Georgia Territorial Electric Service Act prohibits the imposition of franchise fees. Held:

1. In City of LaGrange v. Troup County EMC, 200 Ga. App. 418, 419-420 (408 SE2d 708), this court held that a franchise is a contract creating property rights, that a city could not create such a contractual relationship by its unilateral act; and that in the absence of an agreement between the parties, a city could not collect a franchise fee from the EMC. As there is no material difference between the factual circumstances here, City of LaGrange v. Troup County EMC, supra, is controlling. Consequently, the City of Calhoun is not entitled to a franchise fee, and the trial court did not err in so finding.

Decided July 2, 1993 —

Reconsideration denied July 15 & July 16, 1993 —

Alston & Bird, L. Clifford Adams, Jr., Robert J. Middleton, Jr., Bryan A. Downs, Bailey & Bearden, William P. Bailey, T. Joseph Campbell, for appellant.

Kinney, Kemp, Pickett, Sponcler & Joiner, L. Hugh Kemp, Robert C. Richardson, Jr., James C. Brim, Jr., for appellee.

2. Although the City seeks to recover under theories of contracts implied in fact or law, neither of these theories is applicable here. City of LaGrange v. Troup County EMC, supra. At every opportunity the EMC has rejected the proposed franchise and has done nothing inconsistent with that position. Under these circumstances, the EMC has not accepted services from the City rendered under the purported franchise. This is not an instance in which the EMC has extended its service into the franchise area. On the contrary, since the passage of the City’s franchise ordinance, the scope of the EMC’s service in the city has remained constant or has decreased. Moreover, this is not an instance in which the EMC’s presence in the city was the result of the EMC’s expansion into the city. Instead, the City has annexed areas in which the EMC was already providing service.

3. In view of our decision on the main appeal, the cross-appeal, Case No. A93A0379, is dismissed as moot. OCGA § 5-6-48 (b); Chastain v. Baker, 255 Ga. 432, 433 (339 SE2d 241); Merrill v. Eiberger, 198 Ga. App. 806 (403 SE2d 91).

Judgment affirmed in A93A0378 and appeal dismissed in A93A0379.

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


author: Pope, Chief Judge.

text:
    A93A0505, A93A0999.
    RHYNE v. THE STATE (two cases).
    (434 SE2d 76)
   Pope, Chief Judge.

Defendant Walter York Rhyne was indicted and tried for murder. At the conclusion of the State’s evidence and the conclusion of all evidence, defendant moved for directed verdict of acquittal. While the judge was considering the State’s motion for mistrial, defendant again moved for directed verdict. Each time defendant’s motion was denied. Ultimately, the judge declared a mistrial because it appeared that the jury was hopelessly deadlocked. Two weeks after mistrial was declared, defendant filed a motion for directed verdict notwithstanding mistrial. The hearing on the motion was assigned to the judge who tried the case. Before the motion came on for a hearing, a different judge entered an order of nolle prosequi in the case in response to a motion brought by the State on the ground that defendant had been re-indicted. The order was entered without the defendant’s consent or knowledge.

The trial judge then denied defendant’s motion for directed verdict notwithstanding mistrial, noting that the merits of the motion were not reached but that the motion was denied because if the nolle prosequi was properly entered, the case was no longer pending and the trial court had no authority to grant defendant’s motion. In the order denying defendant’s motion, the trial court granted a certificate of immediate review and attempted to “certify” to this court questions concerning whether a motion for directed verdict notwithstanding mistrial may be granted and whether consideration of such a motion is precluded by the entry of nolle prosequi. Defendant filed with this court an application for interlocutory review and we granted the application. This appeal was docketed in this court as Case No. A93A0505. Defendant then filed an enumeration of error in which he reframed the questions posed by the trial court but then enumerated as error the trial court’s denial of judgment of acquittal on the ground that the entry of nolle prosequi without his consent and while a motion for directed verdict of acquittal notwithstanding mistrial was pending has the effect of acquittal.

After mistrial, defendant was re-indicted on a three-count indictment charging defendant with malice murder, felony murder and voluntary manslaughter. Defendant filed a plea in bar and motion to dismiss the new indictment. Defendant’s motion was denied and he filed an appeal with this court. This appeal is Case No. A93A0999. We granted defendant’s motion to consolidate the two appeals.

Case No. A93A0505

1. First we note that, unlike the Georgia Supreme Court which is authorized by the Georgia Constitution to consider questions of law from any state or federal appellate court (Ga. Const. 1983, Art. VI, Sec. VI, Par. V), this court is a court for the correction of legal errors on appellate and certiorari jurisdiction (Ga. Const. 1983, Art. VI, Sec. V, Par. III). Consequently, we cannot address the questions posed in the trial court’s order and certificate of immediate review. The only issue before us on appeal is the error enumerated by defendant: whether the trial court erred in denying defendant’s motion for directed verdict of acquittal notwithstanding mistrial because the entry of nolle prosequi without defendant’s consent while such a motion was pending has the effect of acquittal.

Pursuant to OCGA § 17-8-3, before a case has been submitted to a jury the prosecutor may enter a nolle prosequi with the consent of the court, but after the case is submitted to the jury “a nolle prosequi shall not be entered except by the consent of the defendant.” If it is entered after submission to the jury and without defendant’s consent, a nolle prosequi is equivalent to an acquittal on a plea of former jeopardy. Jones v. State, 55 Ga. 625 (2) (1876). The Jones opinion goes on to say, however, that retrial on a subsequent indictment in such a situation would not be barred in the case of mistrial. Id. at (3). See also Hobbs v. State, 229 Ga. 556 (192 SE2d 903) (1972); Rhodes v. State, 200 Ga. App. 193 (6) (407 SE2d 442) (1991). Thus, a properly-granted mistrial removes the case from the jury and a nolle prosequi entered after mistrial, even without the consent of defendant, does not have the effect of acquittal. The record supports the trial judge’s conclusion that the jury was hopelessly deadlocked and thus termination by declaration of mistrial was proper. See OCGA § 16-1-8 (e) (2) (C). Defendant was not entitled to judgment of acquittal on the ground that the entry of nolle prosequi in these circumstances had the effect of acquittal.

Once a nolle prosequi is entered in a case, the prosecution and all incidents to it are at an end. Merrill v. State, 201 Ga. App. 671 (2) (411 SE2d 750) (1991); State v. Davis, 196 Ga. App. 785 (397 SE2d 58) (1990). Consequently, the defendant’s motion became moot. Defendant nevertheless argues that the State should not be permitted to enter a nolle prosequi, thus terminating the case and permitting retrial on a subsequent indictment, where the defendant is entitled to a directed verdict pursuant to a post-mistrial motion. We reject defendant’s premise that such relief exists pursuant to Georgia law and hereby disapprove any previous case law that implies otherwise.

No statutory provision for judgment n.o.v. exists in the statutory criminal law of Georgia and the Supreme Court, in Wilson v. State, 215 Ga. 775 (1) (113 SE2d 607) (1960), declined to create such a remedy judicially. In State v. Bilal, 192 Ga. App. 185 (384 SE2d 253) (1989), this court noted that the legislature’s creation, in 1971, of a right to move for directed verdict during trial, codified at OCGA § 17-9-1, “did not affect the holding in Wilson, supra, for the legislature did not create a right to judgment notwithstanding the verdict in a criminal case.” Bilal, 192 Ga. App. at 186. OCGA § 17-9-1 permits a defendant to seek a directed verdict of acquittal only during trial. By contrast, the Federal Rules of Criminal Procedure permit a defendant to seek such relief not only after the return of a verdict of guilty (F.R.Cr.P. 29 (b)) but also after mistrial (F.R.Cr.P. 29 (c)). If the Georgia legislature wishes to create the right to seek post-conviction or post-mistrial judgment of acquittal it may, following the lead of federal statutory law, do so. At this time, however, the law of Georgia provides for neither a motion for judgment of acquittal notwithstanding the verdict nor a motion for judgment of acquittal notwithstanding mistrial.

We are aware of only two opinions in Georgia law in which a Georgia appellate court has reviewed a trial court’s denial of a motion for acquittal on the grounds of the insufficiency of the evidence in a case which ended in mistrial. In King v. State, 246 Ga. 386 (4) (271 SE2d 630) (1980), the Georgia Supreme Court concluded there was no merit to defendant’s argument that his motion for directed verdict of acquittal notwithstanding mistrial was erroneously denied in a previous trial of the charges against him. The Supreme Court did not address the issue of whether such relief exists in Georgia nor the issue of whether it had jurisdiction to consider an error allegedly made in a previous trial of the case. The only other opinion of the Georgia Supreme Court of which we are aware where the defendant appealed the denial of his motion for judgment of acquittal notwithstanding mistrial also did not address the issue of a criminal defendant’s right to such a judgment and, in fact, did not rule on the denial of the motion but, instead, affirmed the trial court’s ruling on the ground that it did not abuse its discretion in declaring mistrial despite defendant’s proffered waiver of a unanimous verdict. Glass v. State, 250 Ga. 736 (300 SE2d 812) (1983). In Phillips v. State, 133 Ga. App. 461 (211 SE2d 411) (1974), the defendants moved for directed verdict of acquittal during trial and also after mistrial was declared. This court reviewed the merits of defendants’ motion for acquittal and reversed the trial court’s denial of defendants’ motions. In subsequent cases involving the trial court’s denial of a motion for judgment of acquittal notwithstanding mistrial, this court either resolved the appeal on some other issue (Parham v. State, 137 Ga. App. 498 (224 SE2d 485) (1976)) or dismissed the appeal for the defendant’s failure to follow the procedure for interlocutory appeal. McCuen v. State, 191 Ga. App. 645 (382 SE2d 422) (1989); Blackburn v. State, 169 Ga. App. 498 (314 SE2d 244) (1984); Phillips v. State, 153 Ga. App. 410 (265 SE2d 293) (1980). In none of these cases did we address the issue of whether such a motion is valid pursuant to Georgia law. It is clear from a careful reading of these cases that no previous opinion has considered the issue of whether a motion for judgment of acquittal notwithstanding mistrial is authorized by Georgia law. As discussed above, we conclude no such motion may be brought pursuant to Georgia law. Consequently, the trial court should have dismissed rather than denied defendant’s motion. On remand, the motion should be dismissed.

Case No. A93A0999

2. Having ruled above that defendant was not entitled to judgment of acquittal notwithstanding mistrial and that the entry of nolle prosequi in the first indictment did not result in acquittal, it follows that prosecution of the defendant on the second indictment is not barred on the ground of double jeopardy. “[T]he authorities are clear that where the grant of a mistrial results from the inability of the jury to agree on a verdict which makes the discharge of the jury necessary and the completion of the trial impossible, a second trial for the same offense or for an offense growing out of the same acts is not barred and does not violate the guaranty against double jeopardy. Wade v. Hunter, 336 U. S. 684 (69 SC 834, 93 LE 974) [(1949)]; [cits.].” Hobbs v. State, 229 Ga. at 558. See also Rhodes v. State, 200 Ga. App. 193 at (6).

The fact that the charge against defendant was dismissed after mistrial does not bar the State from reasserting the same charge and retrying defendant. In Chatfield v. Ricketts, 673 F2d 330 (10th Cir. 1982), cert. denied, 459 U. S. 843 (1982), the Tenth Circuit Court of Appeals, in reliance upon several opinions of the United States Supreme Court, held that upon mistrial of a case because of a hung jury, the case reverts back to its pre-trial status. Because a prosecutor may dismiss charges during the pre-trial period and reassert them, the Court ruled the prohibition against double jeopardy does not prohibit a prosecutor from reasserting a charge after mistrial and dismissal. See also State v. Johnson, 588 NE2d 224 (Ohio App. 1990). In this case, the dismissal of the murder charge after mistrial does not preclude the prosecutor from recharging and retrying defendant for the offense of murder.

3. We agree, however, that Count 2 of the second indictment, charging defendant with felony murder, and Count 3, charging him with voluntary manslaughter, are procedurally barred pursuant to OCGA § 16-1-7 (b) which prohibits multiple prosecutions for crimes arising out of the same conduct. The record shows Counts 2 and 3 arise out of the same conduct which formed the basis for the murder charge in the original indictment. Defendant cannot be re-indicted for additional crimes after a jury is unable to reach a verdict on the original indictment. Curry v. State, 248 Ga. 183 (2) (281 SE2d 604) (1981). “The defendant is not to be penalized, by the addition of new charges, for the state’s failure to obtain a conviction upon the first trial.” Id. at 184. Upon retrial for the murder charge this rule would not, however, prevent the State from requesting a charge on the lesser included offense of voluntary manslaughter as was requested at the trial on the original indictment.

Judgment reversed with direction in Case No. A93A0505. Judgment affirmed in part and reversed in part in Case No. A93A0999.

Birdsong, P. J., and Andrews, J., concur.

Decided June 24, 1993 —

Reconsiderations denied July 16, 1993 —

Donaldson & Bell, George P. Donaldson III, Reginald J. R. Bell, Jr., for appellant.

Britt R. Priddy, District Attorney, Johnnie M. Graham, Assistant District Attorney, for appellee.