author: Blackburn, Judge.

text:
    A93A0041.
    TENNISON v. LOWNDES-ECHOLS ASSOCIATION FOR RETARDED CITIZENS, INC. et al.
    (433 SE2d 344)
   Blackburn, Judge.

The appellant, Billy James Tennison, brought this negligence action against the appellees, Lowndes-Echols Association for Retarded Citizens, Inc. d/b/a South Georgia Industries and LARC Services (LARC), and Tim Crown, an employee of Lowndes-Echols Association for Retarded Citizens, Inc., as a result of injuries that he sustained while assisting Crown unload a bundle of lumber. LARC and Crown responded, asserting several defenses, including contributory negligence and assumption of the risk. After discovery was commenced, LARC and Crown moved for summary judgment, and the motion was granted. This appeal followed.

On March 28, 1990, Tennison was employed by Moore Lumber Company. At approximately 10:00 a.m., he arrived at LARC’s premises for the purpose of delivering lumber. Tennison noticed that Crown was experiencing difficulty lifting the pallets of lumber from the flatbed truck driven by Tennison onto a forklift as the lifts were too small. It is undisputed that Tennison voluntarily climbed onto the truck and stood on top of a 14-foot bundle of lumber that Crown attempted to unload from the truck in an effort to assist Crown with the load. While on top of the pallet of lumber, Tennison took a two by four and attempted to move the lumber onto the forklift. Crown subsequently tilted the forks of the forklift upward, which caused the bundle of lumber to shift. Tennison was on top of the pallet of lumber at the time, and the forklift overturned. Thereafter, Tennison fell to the ground. Both the forklift and lumber fell on top of Tennison, resulting in injuries to his right arm and wrist, head and back.

Tennison has admitted that he was aware of the possibility that the load of lumber could shift and has conceded that approximately four weeks earlier, he saw the same forklift overturn while one of LARC’s employees attempted to unload a bundle of lumber. Tennison further acknowledged that he was aware of the risk involved in climbing on the pallet of lumber and aware of the possibility that the pallet of lumber could fall.

In both of Tennison’s enumerations of error, he contends that the trial court erred in granting summary judgment in favor of LARC and Crown because there are several issues of material facts that remain to be decided by a jury. We disagree.

“ ‘The defense of assumption of the risk requires (1) that the plaintiff had some actual knowledge of the danger; (2) that (he) understood and appreciated the risk therefrom; and (3) that (he) voluntarily exposed (himself) to that risk. [Cit.]’ [Cits.] ‘ “In its simplest and primary sense, assumption of risk means that the plaintiff, in advanee, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.” [Cit.] “In by far the greater number of cases, the consent to assume the risk has not been a matter of express agreement, but has been found to be implied from the conduct of the plaintiff under the circumstances.” [Cits.]’ [Cit.]” Stallings v. Cuttino, 205 Ga. App. 581, 582 (1) (422 SE2d 921) (1992). “ ‘Although issues of negligence, lack of care in avoiding the negligence of others, lack of care for one’s own safety, and assumption of the risk are ordinarily not susceptible to summary adjudication . . . where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion the issue of assumption of risk may be determined on summary judgment.’ [Cit.] ‘The business invitee on private premises assumes the risk of danger of which he knows . . . and fully comprehends, or which is sufficiently obvious. . . .’ [Cit.]” Taylor v. Bloodworth, 198 Ga. App. 186, 187 (400 SE2d 691) (1990).

Prétermitting the issue of whether Crown was negligent in his operation of the forklift, Tennison knew of the danger of climbing on top of a 14-foot stack of lumber, acknowledged the risk of the possible shifting of the lumber and that the forklift could tilt over, and voluntarily exposed himself to that known risk of danger. It is undisputed that he voluntarily climbed on top of the pallet of lumber knowing that the forklift was too small to unload the pallet. Although Tennison contends that Beringause v. Fogleman Truck Lines, 200 Ga. App. 822 (409 SE2d 524) (1991), demands the denial of LARC and Crown’s motion for summary judgment, we disagree. In Beringause, this court found that a jury charge on the assumption of the risk doctrine was inappropriate where the decedent did not have knowledge of the danger of the oncoming truck which struck him while he was traveling in his own lane. Unlike Tennison, the decedent in Beringause did not intelligently acquiesce in the risk of the danger of the approaching truck, but simply failed to exercise ordinary care to discover it. As a result, the doctrine of contributory negligence, not assumption of the risk, was applicable. Id. at 824. See also Mann v. Anderson, 206 Ga. App. 760, 763 (2) (426 SE2d 583) (1992).

We conclude that this is a plain, palpable and indisputable case not calling for jury resolution as noted in Stallings, supra, based upon Tennison’s voluntary assumption of a known risk of danger. Accordingly, summary judgment adjudication was proper.

Judgment affirmed.

Johnson and Smith, JJ., concur.

Decided June 17, 1993 —

Reconsideration denied July 8, 1993 —

Sims, Fleming & Swan, John S. Sims, Jr., James M. Walker III, for appellant.

Tillman, McTier, Coleman, Talley & Newbern, George T. Talley, Edward F. Preston, for appellees.


source: Caselaw Access Project

author: Beasley, Presiding Judge.

license: Public Domain

text:
    A93A0076.
    HAILEY v. BLALOCK.
    (433 SE2d 337)
   Beasley, Presiding Judge.

In August 1991, Blalock sued her dermatologist, Dr. Hailey, for medical malpractice. She alleged that in August 1989 she had sought treatment from the defendant regarding a small hole on the right side of her nose located on the same spot where on two previous occasions he had removed a basal cell carcinoma; defendant was apprised of the hole by plaintiff, yet he performed no treatment whatsoever and stated that there was nothing to worry about; plaintiff subsequently sought treatment from another physician, who performed a biopsy in March 1991 and determined that the hole was in fact a basal cell carcinoma; it required radical surgery to her face, permanently disfiguring her.

Two days before expiration of the statute of limitation, plaintiff filed her complaint without attaching the affidavit required by OCGA § 9-11-9.1. Pursuant to subsection (b), she stated in the complaint that she would file the affidavit within 45 days. On the 44th day, she moved for an extension of time, which was opposed by defendant.

Plaintiff amended her motion by filing the affidavit of Dr. Moore, a medical doctor whose practice focuses on general and thoracic surgery. It recited: he had reviewed certain medical and photographic records; defendant had treated plaintiff for a basal cell carcinoma at' the paranasal fold next to the right side of her nose; she had desiccantion by cautery and curettage in 1964, 1969, 1978, and 1987; with that history available in his records, and with findings that are undoubtedly suspicious of recurrence, defendant failed to determine whether the tumor was still present or not in 1989; defendant failed to meet the standard of care and skill used by similarly situated physicians under similar conditions and like surroundings, by failing to take proper action to treat the lesion; as a result, plaintiff was subject to extensive disfiguring surgery which could have been avoided.

Defendant moved to dismiss under OCGA § 9-11-9.1 or, alternatively, for summary judgment under OCGA § 9-11-56. As support, he filed his own affidavit in which he stated that he had first seen plaintiff in 1961 when he treated her for several actinic keratoses on her face and wrist; he had seen her on numerous subsequent occasions in the 1960s and 1970s for dermatological care and treatment; he examined her in 1987, 1988, and 1989; in his opinion, the care and treatment rendered by him to plaintiff conformed in all respects to that reasonable degree of care and skill observed by physicians generally under like conditions and similar circumstances; no act or omission on his part caused or contributed in causing any injury or damage allegedly sustained by plaintiff.

At a hearing on the parties’ motions, defendant argued that Dr. Moore’s affidavit was insufficient under both OCGA §§ 9-11-9.1 and 9-11-56, because it was not shown that Dr. Moore is a qualified expert; no certified medical records or other material referred to by Dr. Moore in the affidavit were attached to the affidavit; the affidavit failed to establish the parameters of acceptable conduct or the particulars in which defendant’s treatment of plaintiff was negligent. Plaintiff conceded that the records were not attached but stated that defendant’s affidavit was merely conclusory and no records were attached to his affidavit either. The court took the case under advisement and gave plaintiff additional time to reply to defendant’s supplemental brief.

Along with plaintiff’s reply brief she filed another affidavit executed by Dr. Moore, essentially the same as his earlier affidavit but with medical records attached. Defendant moved to strike the affidavit on grounds that, inter alia, it was untimely in that it was not filed before the summary judgment hearing and plaintiff had only been given permission to file a reply brief.

The court granted the motion to strike and granted plaintiff’s motion for an extension, allowing Dr. Moore’s first affidavit (sans medical records) to be considered. The court also denied defendant’s motion to dismiss or alternatively for summary judgment, finding genuine issues of material facts. An interlocutory appeal was permitted.

1. An affidavit which satisfies the pleading requirements of OCGA § 9-11-9.1 will not necessarily satisfy the evidentiary requirements of OCGA § 9-11-56. Turner v. Kitchings, 199 Ga. App. 860 (406 SE2d 280) (1991). The concern here is with the latter, for if the affidavit cannot survive summary judgment, then its sufficiency for the threshold compliance will be moot.

2. “The standard of care owed by a physician in the care and treatment of his patient is that degree of care and skill and diligence ordinarily employed by the profession generally. [Cit.] The law presumes that the physician has performed in a skillful manner, and the burden is on the plaintiff-patient alleging malpractice to show a lack of due care, skill, and diligence. ‘Expert testimony is (usually) required in order to overcome the presumption of care, skill, and diligence. (Cit.)’ [Cit.]” Hyles v. Cockrill, 169 Ga. App. 132, 138 (10) (312 SE2d 124) (1983).

“To be sufficient to controvert the defendant’s expert opinion and create an issue of fact, the plaintiff’s expert must base his opinion on medical records which are sworn or certified copies, or upon his own personal knowledge; and he must state ‘the particulars in which the defendant’s treatment of the plaintiff was negligent.’ [Cits.]” (Emphasis deleted.) Loving v. Nash, 182 Ga. App. 253, 255 (1) (355 SE2d 448) (1987).

“OCGA § 9-11-56 (e) requires sworn or certified copies of all documents referred to in an affidavit to be attached to the affidavit. An expert affidavit is insufficient to oppose a motion for summary judgment if the documents on which the affiant relies in forming his opinion are not certified or sworn, even if unsworn copies are attached to the affidavit. [Cits.]” Johnson v. Srivastava, 199 Ga. App. 696, 697 (1) (405 SE2d 725) (1991).

This “arises out of the hearsay nature of the records or documents relied upon. [Cits.] If the plaintiff’s expert’s opinion be not based upon matters of record or certified medical documents, he may base his opinion upon personal knowledge of the facts of the case, if he has any. The requirement that a plaintiff’s expert opinion be based on certified medical records or matters of record, or based on personal knowledge of the facts, responds to the question of hearsay as the foundation for an opinion, and conforms to the rule that mere conclusions are not sufficient to create issues of fact. [Cit.] But in either case, the plaintiff cannot prevail on motion for summary judgment by merely presenting a conclusory opinion that defendant was negligent or failed to adhere to the professional standard. [Cit.] She must state the particulars. She must establish the parameters of the acceptable professional conduct and set forth how or in what way the defendant deviated therefrom. [Cits.]” (Emphases deleted.) Loving, supra at 255.

Plaintiff’s expert charged defendant with professional negligence in failing to diagnose and treat the basal cell carcinoma in 1989. Unlike the alleged negligence in Loving, supra, this allegation of negligence was stated with sufficient particularity. However, like Lance v. Elliott, 202 Ga. App. 164 (413 SE2d 486) (1991), but unlike Flowers v. Armstrong, 202 Ga. App. 467 (414 SE2d 672) (1991), plaintiff’s expert affidavit was not based on personal knowledge of the affiant or matters of record, but rather on medical records and other documents that were not attached to the affidavit, much less sworn or certified. Like Johnson, supra, and Lance, supra, but unlike Jones v. Rodzewicz, 165 Ga. App. 635, 636 (3, 4) (302 SE2d 402) (1983), the facts upon which plaintiff’s expert based his opinion concerning defendant’s treatment of plaintiff were not sufficiently before the trial court in some other form. Consequently, plaintiff’s affidavit lacks probative value and was insufficient to oppose defendant’s motion for summary judgment and create an issue of fact for trial. McClure v. Clayton County Hosp. Auth., 176 Ga. App. 414, 417 (2) (336 SE2d 268) (1985).

Decided June 16, 1993 —

Reconsideration denied July 8, 1993.

Long, Weinberg, Ansley & Wheeler, Roger Mills, Glenn E. Kushel, Robert G. Tanner, for appellant.

Lovett & Hicks, L. Robert Lovett, William E. Hicks, for appellee.

3. Plaintiff argues, for the first time on appeal, that this case involves extreme circumstances in which the error of judgment or result of treatment was so gross, and the negligence so clear and palpable, that she could meet her evidentiary burden without producing expert testimony.

The exception she alludes to covers instances such as “where a leg or limb which has been broken is shorter than the other after such treatment, or where a doctor undertakes to stitch a wound on his patient’s cheek, and, by an awkward move, thrusts his needle into the patient’s eye. . . .” Shea v. Phillips, 213 Ga. 269, 271 (2) (98 SE2d 552) (1957). But “[w]hat is the proper method of diagnosing a case is a medical question to be testified to by physicians as expert witnesses.” Pilgrim v. Landham, 63 Ga. App. 451, 454-455 (3) (11 SE2d 420) (1940); see Myers v. Johnson, 113 Ga. App. 648, 659 (2) (149 SE2d 378) (1966).

Failure of the defendant-physician to diagnose the recurrence of a basal cell carcinoma on the patient’s nose because of a hole in her nose did not, without more, constitute a gross error of judgment or clear and palpable negligence.

Judgment reversed.

Cooper and Johnson, JJ., concur. Smith, J., disqualified.


author: Smith, Judge.

text:
    A93A0198.
    POWELL v. HARSCO CORPORATION.
    (433 SE2d 608)
   Smith, Judge.

George E. Powell was drowned when the fiberglass grate catwalk upon which he was standing collapsed and he was thrown into a vat of chemicals at a paper mill operated by his employer, Ponderosa Georgia Corporation. His widow, Rose E. Powell, brought this wrongful death and survival action against appellee Harsco Corporation. It is a form of products liability litigation. After discovery, Harsco moved for summary judgment, urging among other things, that it had no duty of care, that it had complied with any applicable duty of care, and also the absence of legal causation. The motion was granted by the trial court, which certified its order as final within the meaning of OCGA § 9-11-54 (b). This direct appeal followed.

1. Harsco contends it cannot be liable, since it was not the manufacturer. “An action in products liability may proceed on one or a combination of theories of negligence, strict liability, or breach of warranty. [Cits.]” Ogletree v. Navistar Intl. Transp. Corp., 194 Ga. App. 41, 44 (1) (390 SE2d 61) (1989). As amended, the complaint proceeds against Harsco as an “ostensible manufacturer” solely on the theory of negligent failure to warn and does not allege strict liability pursuant to OCGA § 51-1-11 (b). See OCGA § 51-1-11.1 (b) (product “seller” is not subject to the strict liability of a manufacturer).

In November 1986, Ponderosa Georgia purchased the fiberglass grating at issue from Chatham Steel Corporation. Chatham Steel had purchased this grating from Borden Metal Products, Inc., which was then owned by Harsco. The grating was in fact manufactured by Polytrusions, Inc. Pursuant to a licensing agreement with Polytrusions, Inc., Borden Metal Products, Inc. had marketed and distributed the grating as the product of a related corporation, Easco. After the expiration of that licensing agreement between Borden and Polytrusions, Harsco manufactured the fiberglass grating under the trade name IKG Borden.

“The party opposing a motion for summary judgment must be given the benefit of all [favorable] inferences that may be drawn from the evidence. [Cit.] . . . ‘One who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.’ [Cits.]” (Emphasis supplied.) Pepper v. Selig Chemical Indus., 161 Ga. App. 548, 550 (2) (288 SE2d 693) (1982). Since both the manufacturer and the distributor could be characterized as its agents, Harsco is, contrary to its assertions below, subject to liability as though it were the manufacturer. See Pepper v. Selig Chemical Indus., supra at 549-550 (2).

2. The amended complaint alleged that the grating was dangerous because it had been sold with inadequate safety warnings and installation instructions. The safety warning alleged to have been omitted is that the grating would be dangerously unstable if not properly anchored, while the installation instructions allegedly were inadequate because they did not convey this risk.

The common-law duty imposed upon suppliers of chattels includes the duty to warn of foreseeable dangers arising from the reasonable use for which the product is intended and requires the exercise of reasonable care to inform third persons of the dangerous condition or of the facts which make the product likely to become dangerous. J. C. Lewis Motor Co. v. Williams, 85 Ga. App. 538, 541-542 (69 SE2d 816) (1952). The undisputed evidence shows that, at the time of Mr. Powell’s fall, the catwalk was composed of sections of fiberglass grating which had been clipped or attached to each other but that none of these sections had been attached to the load-bearing frame. Consequently, the entire catwalk simply rested on the framework. In support of its motion for summary judgment, Harsco showed that Borden sales literature, including proper installation instructions, were in the possession of Ponderosa Georgia prior to shipment. These installation instructions contained a diagram showing that the grating should be bolted to a load-bearing frame, and recommending specific types of hold-down clamps or clips. At deposition, the Ponderosa Georgia employee who installed the fiberglass catwalk testified that he had neither received nor followed any installation instructions, written or oral, regarding the need to bolt the entire catwalk to a frame or girding. He also stated that he had previously installed and repaired metal gratings by welding them to the frame.

We do not decide whether, as a matter of law, the installation diagram is sufficient to convey to all who examine it the danger of not bolting an elevated catwalk to some load-bearing surface, because the failure of the installer to follow or even to read the installation instructions from the sales literature renders all remaining factual issues immaterial.

“Whether proceeding under a strict liability or a negligence theory, ‘proximate cause’ is a necessary element of appellant’s case. [Cits.]” Talley v. City Tank Corp., 158 Ga. App. 130, 134 (3) (279 SE2d 264) (1981). The alleged inadequacy of the installation instructions cannot be the proximate cause of the collapse of the catwalk and Mr. Powell’s death when the installer did not read the installation directions that Harsco’s subsidiary actually provided. Cobb Heating &c. Co. v. Hertron Chemical Co., 139 Ga. App. 803, 804 (229 SE2d 681) (1976). See also McClesky v. Olin Mathieson Chemical Corp., 127 Ga. App. 178, 179-180 (3) (193 SE2d 16) (1972). “It is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act [or omission] of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s act, and which was sufficient of itself to cause the injury. [Cits.] While the question of proximate cause is usually submitted to the jury as a question of fact, it may be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion, that the defendant’s [alleged omissions] were not the proximate cause of the injury. [Cits.]” Union Carbide Corp. v. Holton, 136 Ga. App. 726, 729 (1) (222 SE2d 105) (1975).

Decided June 15, 1993 —

Reconsideration denied July 8, 1993 —

Clark & Smith, Craig T. Jones, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Todd M. Yates, Carter & Ansley, A. Terry Sorrells, for appellee.

The trial court correctly granted Harsco’s motion for summary judgment.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A0232.
    EXCAVATION +, INC. v. CANDLER.
    (433 SE2d 340)
   Blackburn, Judge.

The appellant, Excavation +, Inc. (Excavation), brought the instant action against the appellees, Asa G. Candler V, Asa G. Candler VI, and Candler/Lombard Limited Partnership d/b/a Candler Development Company (the development company), for damages in lost profits resulting from the appellees’ repudiation of a construction contract, and for attorney fees for abusive litigation. After the commencement of discovery, Candler V, Candler VI and the development company moved for summary judgment. The trial court subsequently granted the motion for summary judgment in favor of the appellees, and this appeal followed.

The record viewed in the light most favorable to Excavation shows that Asa Candler V does business as a sole proprietor under the trade name of Candler Development Company. The development company owns property at the Town Center Plaza. Asa Candler VI (Candler) became familiar with Excavation as a supplier of fill dirt for a proposed shopping center based upon the recommendation of James Remole. Thereafter, Sallie Early, the president of Excavation, submitted a price quote to the development company on the grading site at Town Center Plaza. Following discussions between representatives of both companies, Excavation submitted two letters dated November 10, 1986, delineating the scope of the work to be performed by Excavation. The “TOTAL CONTRACT PRICE” for the performance of this work was $1,974,300. The initial letter was signed by Tim LeBar; an employee of Excavation and Asa Candler VI, on behalf of the development company. However, because of her concerns about a bank’s possible reluctance to finance a construction project agreed upon by an employee, Early resubmitted the letter to Candler, in her capacity as president of Excavation. It is undisputed that Early was not involved in any of the discussions concerning the performance of the grading work with the development company prior to the signing of the letter of November 10, 1986.

In his affidavit of January 3, 1992, LeBar averred that he did not consider the letter of November 10, 1986, to constitute a binding contract. At the time that he signed the letter, he was aware of the possibility that the Town Center project might change in scope. However, Early adamantly avers that the letter containing her signature was intended to be a binding and enforceable contract. On February 16, 1987, Candlgr forwarded to Early’s attention a letter concerning the “November 10, 1986 proposal” and indicated that a newly retained general contractor needed to approve the information and prices furnished therein. Early immediately responded to Candler’s letter, opposing any further approval of the previously agreed upon “contract.” In spite of the parties’ dispute as to the binding nature of the second November 10, 1986, letter, the development company continued to inform Excavation of the delay in the commencement of the Town Center project. .As a result of Candler’s refusal to allow Excavation to perform the grading work pursuant to the terms of the “contract,” this action ensued.

Excavation asserts that the trial court erred in granting the motion for summary judgment because the damages that Excavation sustained in lost profits resulting from Candler’s breach of the November 10, 1986, contract are neither speculative nor uncertain. Excavation further maintains that the damages sought are a proper measure of damages for Candler’s repudiation of the contract prior to performance.

We agree that “[t]he measure of damages for such breach is usually the contract price less what it would have cost the contractor to perform, that is, the profits. [Cits.]” Crosswell v. Arten Constr. Co., 152 Ga. App. 162, 163 (262 SE2d 522) (1979). However, “[w]here plaintiffs claim for damages is remote or speculative, summary judgment for the defendant is appropriate. [Cit.]” Hip Pocket v. Levi Strauss & Co., 144 Ga. App. 792, 794 (242 SE2d 305) (1978).

In her deposition, Early indicated that she was not aware of what the expected profit was on the Town Center job and that any figure provided by her would have been speculative in nature. She further admitted therein that unexpected costs may arise in the construction business which are outside of one’s control. Consequently, many expenses are determined upon the timely completion of the particular assignment. Although she asserted in a response to an interrogatory that her anticipated lost profits were based upon the difference between the contract contained in the letter of November 10, 1986, and the price agreed upon by Ivie & Associates (Ivie) for the performance of the work, in her deposition, she acknowledged that Excavation and Ivie were in dispute as to a price for the performance of the work. In fact, George Ivie, the majority stockholder of Ivie, stated in his deposition that Excavation and Ivie did not enter into a written contractual agreement for the performance of the work. He further acknowledged Ivie’s and Excavation’s dispute over the price for work. Ivie actually believed that Excavation had awarded the grading site job to another company.

Decided June 16, 1993 —

Reconsideration denied July 8, 1993 —

Smith & Fleming, Robert 0. Fleming, Jr., David A. Rutherford, for appellant.

Morris, Manning & Martin, Gerald L. Pouncey, Jr., Snellings & Ferguson, Stanley T. Snellings, Ian H. Miller, for appellee.

Pretermitting whether the letter of November 10, 1986, consti-' tuted a valid and binding contract, “[w]hen appellee [s] made [their] motion for summary judgment, it was appellant’s duty as adverse party to present [its] case in full and to set forth specific facts showing a genuine issue for trial. [Cit.] Since there is nothing in the record to indicate the extent of appellant’s alleged damages for lost profits other than appellant’s speculation as to the amount, appellant’s [claim] for damages was remote and speculative and the trial court properly granted summary judgment to appellee[s]. [Cit.]” Hearn v. Old Dominion Freight Lines, 172 Ga. App. 658, 659-660 (2) (324 SE2d 517) (1984). As in Hearn, the evidence in the case sub judice clearly shows that Excavation’s claim for damages is not ascertainable and completely conjectural. Consequently, Excavation’s enumerations are without merit.

Judgment affirmed.

Johnson and Smith, JJ., concur.

       In its order granting the motion for summary judgment, the trial court acknowledged the parties’ consent to the dismissal with prejudice of Asa Candler VI and Candler/Lombard Limited Partnership.


text:
    A93A0475.
    THOMPSON v. DEPARTMENT OF TRANSPORTATION.
    (433 SE2d 623)
   Smith, Judge.

Appellant-plaintiff Thompson owns a Mrs. Winner’s restaurant. After public dissemination of a proposal by which appellee-defendant Department of Transportation (DOT) would make improvements to public streets adjoining Thompson’s business, a purchaser of that business withdrew the offer to buy. It is undisputed that the proposed street improvements are still in the planning and development stage. No direct condemnation or notice of condemnation has ever been filed by DOT. Unable to sell his business, Thompson brought this action for damages, alleging inverse condemnation and a civil rights claim under 42 USC § 1983. DOT moved for summary judgment as to each theory of liability. This motion was granted by the trial court and Thompson appeals.

1. Alleged losses or diminution in the fair market value of property attributable to an anticipated condemnation are not compensable elements of damage or a taking resulting from the exercise of eminent domain authority, regardless of whether the claim is styled as a direct or inverse condemnation. Josh Cabaret, Inc. v. Dept. of Transp., 256 Ga. 749 (3), 750 (5) (353 SE2d 346) (1987). See also Housing Auth. &c. of Decatur v. Schroeder, 222 Ga. 417 (151 SE2d 226) (1966). Such pre-condemnation publicity losses are the only basis for a claim for money damages in this suit. Moreover, DOT is not permitted to acquire property interests for future road building until the Secretary of Transportation of the United States has approved in advance all of the necessary funding. OCGA § 32-3-1 (c) (1). The trial court correctly granted DOT’s motion for summary judgment as to Thompson’s claim sounding in inverse condemnation.

2. “A State is not a person within the meaning of [42 USC] § 1983. ... In common usage, the term ‘person’ does not include the sovereign, and statutes employing the word are ordinarily construed to exclude it.” (Citations and punctuation omitted.) Will v. Michigan Dept. of State Police, 491 U. S. 58, 64 (109 SC 2304, 105 LE2d 45) (1989). The Eleventh Amendment bars a § 1983 action against “States or governmental entities that are considered ‘arms of the State,’ for Eleventh Amendment purposes. [Cit.]” Will v. Michigan Dept. of State Police, supra at 70. “The right of eminent domain is a sovereign right of the State. It is inherent in every sovereignty. . . . [T]he legislature . . . may confer the power upon agencies.” Chestatee Pyrites Co. v. Cavenders Creek Gold Mining Co., 119 Ga. 354, 355 (1) (46 SE 422) (1904).

Pursuant to OCGA § 32-2-2 (a) (8), the legislature has delegated to DOT the authority to exercise the right and power of eminent domain for public road and transportation purposes. It follows that DOT is an “arm of the State” for eminent domain purposes, and the trial court correctly held that an action brought against DOT under 42 USC § 1983 could not be maintained for losses occasioned by precondemnation publicity. The grant of summary judgment was correct. Amdahl Corp. v. Dept. of Admin. Svcs., 260 Ga. 690, 698 (4) (398 SE2d 540) (1990).

Decided June 18, 1993 —

Reconsideration denied July 8, 1993 —

Chamberlain, Hrdlicka, White, Johnson & Williams, Richard N. Hubert, for appellant.

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, Cathy A. Cox-Brakefield, Assistant Attorney General, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Johnson, Judge.

text:
    A93A0615.
    WILLIAMS v. THE STATE.
    (433 SE2d 361)
   Johnson, Judge.

Echo Williams appeals from her conviction of voluntary manslaughter and the denial of her motion for a new trial.

1. Williams contends that the trial court erred in refusing to charge the jury on self-defense and defense of others. “It is well established that an instruction is not inapplicable where there is any evidence, however slight, on which to predicate it. The evidence necessary to justify a jury charge need only be enough to enable one to carry on a legitimate process of reasoning.” (Citations and punctuation omitted.) Simmons v. State, 172 Ga. App. 695, 696 (1) (324 SE2d 546) (1984). Here, there was evidence to support jury charges on the justification defenses.

The district attorney, having anticipated the affirmative defense of justification and recognizing that the burden of proof regarding this defense rested with the State, introduced into evidence during its case-in-chief two pre-trial statements made by Williams in which she claimed that her mother was attacked by the victim. Williams further stated that she intervened in the attack to protect her mother, that she and the victim struggled over a knife and that during this struggle she stabbed the victim. Williams’ mother also testified at trial that she was attacked by the victim before the victim and Williams struggled.

Despite this evidence, the court refused to give charges on the justification defenses because they were inconsistent with Williams’ trial testimony. At trial, Williams repudiated her pre-trial statements by testifying that although she did intervene in the fight between her mother and the victim, she did not stab the victim. While it is true that Williams’ trial testimony conflicted with her pre-trial statements, this conflict does not invalidate charges on the justification defenses of self-defense and defense of others. Even if a defendant pursues alternative defenses, it would be error to refuse to give the requested charges on those defenses if there is evidence to support them. Calloway v. State, 176 Ga. App. 674, 679 (4) (337 SE2d 397) (1985); see also Simmons, supra at 696. Because Williams pursued the alternative defense theories of self-defense, defense of others and her denial that she even committed the stabbing, and because there was some evidence supporting each of these theories, the trial court erred in refusing to charge the jury on the justification defenses.

Decided June 23, 1993 —

Reconsideration denied July 8, 1993 —

Straughan & Straughan, Mark W. Straughan, for appellant.

James L. Wiggins, District Attorney, Timothy G. Vaughn, Assis tant District Attorney, for appellee.

Moreover, where there is evidence of mutually exclusive defenses, the jury, as trier of fact, must select between them. See generally Simmons, supra; compare Conner v. State, 251 Ga. 113, 115 (2) (a) (303 SE2d 266) (1983). In refusing to charge the jury on the justification defenses, the court invaded the province of the jury as the trier of fact by limiting its consideration of the case to the defense theory elicited from Williams at trial.

In this case, the trial court was put in a difficult, if not untenable, position of having to decide whether to charge the jury as requested on the justification defenses when Williams herself gave trial testimony repudiating the defenses. While we recognize that the court’s decision not to charge the jury on the justification defenses was understandable in light of Williams’ trial testimony, it remains that there was some evidence to support the requested charges. Therefore, it was error to fail to give the charges and Williams’ conviction must be reversed. Compare Conner, supra.

2. The appellant’s remaining enumerations of error need not be addressed in view of our holding in Division 1.

Judgment reversed.

Blackburn and Smith, JJ., concur.

       These defenses will be referred to collectively as justification defenses.

       Indeed, there has been a suggestion in this case that everyone — the district attorney, the trial judge, and Williams’ own lawyer — was taken by surprise by her trial testimony.


text:
    A93A0624.
    KELLY et al. v. SCHEIDT.
    (433 SE2d 370)
   Blackburn, Judge.

Appellants, Betty Kelly and Johnny Kelly (hereinafter referred to collectively as the Kellys), brought the underlying action seeking compensation for personal injuries arising out of a motor vehicle collision with Kelly Scheldt’s motor vehicle. The jury returned a verdict in favor of appellee, Scheidt. On appeal, the Kellys assert that the trial court erred in failing to charge the jury with a properly requested instruction on wave out.

Prior to the collision, Betty Kelly was traveling southbound on Barnwell Road just north of its intersection with Rivermont Parkway, in Fulton County, Georgia. Scheidt was stopped at a stop sign at that intersection, facing west. Scheidt was attempting to turn left and proceed north on Barnwell Road. A pickup truck was parked on the shoulder of Barnwell Road which obstructed Scheldt’s view of the southbound lane. Scheidt moved forward a little in order to see around the truck, but the truck still blocked her view. After a couple of minutes, Scheidt asked the occupants of the pickup truck to move because she could not see around them. Thereafter, the occupants of the pickup truck motioned for Scheidt to proceed. Despite the gestures of the truck’s occupants, Scheidt proceeded slowly and continued to look to her left as she edged into Barnwell Road. Scheidt testified that she stopped as soon as she saw Betty Kelly’s vehicle. Betty Kelly applied her brakes, but was unable to stop her vehicle. Based on the foregoing facts, the Kellys requested that the trial court charge the jury as follows: “The duty of a driver to yield to approaching traffic on an intersecting roadway rests upon the driver of the automobile and no one else. That driver cannot delegate her statutory duty by relying on a signal from another driver so as to escape negligence and the consequences of negligence resulting from such delegation.” The trial court denied the Kellys’ request and the Kellys assert that this denial was error.

“In order for a refusal to charge to be error, the requests must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge.” (Citations and punctuation omitted.) Lee v. Bartusek, 205 Ga. App. 551 (422 SE2d 570) (1992). In the present case, Scheidt admits that the Kellys’ requested charge was a technically correct statement of the law. However, she argues that the charge was not adjusted to the pleadings, law, and evidence presented in the case, that it was argumentative, and that it was otherwise covered by the trial court’s charge. We agree that the requested charge was otherwise covered by the charge given to the jury.

Decided June 24, 1993 —

Reconsideration denied July 8, 1993 —

Michael R. Goldberg, John M. Hyatt, for appellants.

Bouis, Kyle & Burch, James E. Singer, William S. Allred, for appellee.

The trial court charged the jury as to the definition and elements of proximate cause, negligence, negligence per se, and the statutory duty of a driver approaching a stop sign. As to the driver’s statutory duty when approaching a stop sign, the trial court charged: “Every driver of a vehicle approaching a stop sign shall stop where the driver has a view of approaching traffic on the intersecting roadway before entering it. After stopping, the driver shall yield the right-of-way to any vehicle at the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time when such driver is moving across or within the intersection or junction of roadways.” The trial court’s charge further informed the jury that if they found that Scheidt had violated the law, they could find her negligent per se.

The Kellys contend that it was error for the trial court to fail to give their charge as there was ample evidence in the record that Scheidt acted in response to being waved out and, as a direct result of the wave out, obstructed Betty Kelly’s right-of-way. We do not agree. The evidence does support the fact that a wave out occurred; however, the evidence is clear that Scheidt proceeded with caution, despite the fact that the wave out occurred. Counsel for Scheidt did not argue that the fault belonged to the people who gave the wave out to Scheidt, but merely argued that the wave out did occur and that thereafter Scheidt did not “put blinders on and bull willie out in[to] the street.” Under these facts, it is apparent that Scheidt did not attempt to rely on a delegation of her duty and, therefore, it was not error for the trial court to refuse to give the requested charge, as it was not adjusted to the pleadings and evidence. See Lee, supra.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A93A0710.
    BOARD OF EQUALIZATION v. YORK RITE BODIES OF FREEMASONRY OF SAVANNAH et al.
    (433 SE2d 299)
   Johnson, Judge.

The issue in this case is whether the properties of two Masonic organizations are entitled to exemption from ad valorem taxation under OCGA § 48-5-41 (a) (4) as institutions of “purely public charity.” In York Rite Bodies of Freemasonry &c. v. Bd. of Equalization, 198 Ga. App. 147, 149 (2) (401 SE2d 30) (1990), we held that the Masonic lodges in question are not entitled to such an exemption because they “are used as meeting places, and are not used for the actual charitable purposes for which the Masons were established. Also, the properties are used only by members of the respective lodges and are therefore not open to the ‘public.’ ” The Supreme Court reversed that holding and remanded the case to the trial court for an evidentiary hearing to determine whether the lodges qualify for the exemption. York Rite Bodies of Freemasonry &c. v. Bd. of Equalization, 261 Ga. 558 (408 SE2d 699) (1991). The Supreme Court set forth a test to be used in making that determination. “In determining whether property qualifies as an institution of ‘purely public charity’ as set forth in OCGA § 48-5-41 (a) (4), three factors must be considered and must coexist. First, the owner must be an institution devoted entirely to charitable pursuits; second, the charitable pursuits of the owner must be for the benefit of the public; and third, the use of the property must be exclusively devoted to those charitable pursuits.” York Rite, 261 Ga. at 558 (2). On remand, the trial court applied the test enunciated by the Supreme Court and concluded that the properties are entitled to the exemption as institutions of purely public charity. The Board of Equalization appeals.

“[Findings of trial courts in nonjury trials shall not be set aside unless clearly erroneous.” (Citation and punctuation omitted.) Scott v. Purser Truck Sales, 198 Ga. App. 611, 612 (1) (402 SE2d 354) (1991). Here, the trial court found that the Masons are an institution devoted entirely to charitable pursuits, that the charitable pursuits are for the benefit of the public and that the use of the lodges is exclusively devoted to those charitable pursuits. These findings are not supported by any evidence and are therefore clearly erroneous. There is ample evidence in the record to support a finding that the Masons devote a substantial amount of time and money to charitable pursuits which benefit the public. There is, however, no evidence that the Masons are devoted entirely to such pursuits or that the lodges in question are devoted exclusively to those pursuits. On the contrary, the evidence in the record shows that the Masonic organization devotes numerous resources to non-charitable pursuits which benefit only its members.

The record before this court shows that membership in the Masonic organization is limited to males who are at least 21 years old and who believe in one God. It also shows that one of the primary purposes of the Masonic organization is the improvement of its individual members through lectures and other programs held at their lodges. An exhibit in the record states that, in 1990, 58 percent of the Masons’ philanthropic dollars were used to benefit the general public. The implication of that statistic is that the remaining 42 percent of the Masons’ monetary donations were used for exclusive Masonic purposes and, in fact, the exhibit shows that 42 percent of the money was used for “Masonic Homes, Hospitals, etc.” One of the Masons testified at his deposition that the Masons in some states maintain retirement homes reserved exclusively for use by their members, although no such homes exist in Georgia. He further testified that the Masons run a children’s home in Georgia and require that ten percent of the space in the home be reserved specifically for Masonic children. Another Mason testified at his deposition that the Masons of Georgia maintain a relief fund for the primary purpose of caring for “needy Masons, their wives, widows and orphans.” He further testified, “The individual Lodges usually — they try to take care of their own. If they can’t take care of their own, then they appeal to Grand Lodge for assistance.”

None of this evidence contradicts the fact that the Masons serve a benevolent purpose and pursue many public charities. “However, no matter how high the ideals of an institution, nor how lofty its purposes, in order for it to qualify as a charitable institution for tax exemption under OCGA § 48-5-41 (a) (4), it must have the sole purpose and activity of dispensing public charity.” (Citations and punctuation omitted; emphasis in original.) York Rite, 261 Ga. at 558-559 (2) (a) (b). Because many of the Masons’ activities and resources are used exclusively for the personal benefit of their group, it cannot be said that the group has the sole purpose and activity of dispensing public charity.

Moreover, “the use of the property must be exclusively devoted to conduct that benefits the public by furthering the charitable pursuits of its owner.” Id. at 559 (2) (c). There is no evidence in the record that the use of the lodges in this case are exclusively devoted to the Masons’ charitable pursuits which do in fact benefit the public. Instead, the evidence shows that in addition to using the lodges for such charitable pursuits, the Masons also use the lodges to conduct business which furthers the pursuits that benefit only Masons. They hold programs at the lodges which are designed solely to improve the individual members. They also collect money at the meetings, some of which is used for the exclusive Masonic pursuits discussed above. The property is therefore not exclusively devoted to conduct that benefits the public.

Decided June 1, 1993 —

Reconsideration denied July 8, 1993 —

Barrow, Sims, Morrow & Lee, R. Stephen Sims, for appellant.

Walter Cowart, Gordon B. Smith, for appellees.

The evidence in the record shows that the Masons are not an institution devoted entirely to public charity and that the lodges in question are not used exclusively for public charity. Consequently, the trial court’s judgment that the Masons met their burden of proving that their properties are entitled to exemption from ad valorem taxation under OCGA § 48-5-41 (a) (4) as institutions of purely public charity is clearly erroneous and must be reversed.

Judgment reversed.

Blackburn and Smith, JJ., concur.


text:
    A93A0792.
    BUILDING MATERIALS WHOLESALE, INC. v. REEVES. REEVES v. PARKS.
    A93A0793.
    (433 SE2d 346)
   Blackburn, Judge.

In February 1988, William Parks and William Reeves established a building supplies business, Building Materials Wholesale, Inc. (BMW). Prior to that, both had been employed at an Owens Corning facility in Albany, Georgia, with Parks serving as the facility’s manager and Reeves as an administrative supervisor. In setting up BMW, Parks and Reeves each invested $25,000 in the initial capitalization. Parks was designated as president of the corporation in charge of outside sales, and Reeves was vice president in charge of various administrative matters of the business.

Parks and Reeves eventually executed a shareholders’ agreement governing their relationship, containing a buy/sell clause that required written notice and afforded either shareholder the opportunity to buy or sell at the same price offered by the other shareholder. In August 1990, pursuant to that agreement, Parks orally informed Reeves that he wanted to buy out Reeves’s interest or be bought out by Reeves, and offered $25,000 for Reeves’s stock along with $10,500 as an employment termination fee. Reeves initially agreed to this offer, but later changed his mind and proposed instead to sell 40 percent of his BMW stock for $5,000 and remain at BMW as an employee under contract. Ultimately, Reeves offered to sell all his stock for $20,000, payment of $10,000 for a covenant not to compete, and a written employment contract for a three-year term. Parks agreed to these terms, and the agreement was executed.

The employment contract provided that BMW could terminate Reeves’s employment if he was guilty of misconduct or gross negligence in carrying out his duties or BMW’s business; if he failed or refused to carry out his duties or assignments; or if he wilfully breached any of the conditions in the employment agreement. Two pertinent conditions in the agreement consisted of the prohibition against charging anything of a personal nature to BMW’s open accounts, and keeping his personal telephone calls to an absolute minimum during work hours.

In September 1990, Reeves made over 40 personal, long distance telephone calls on BMW’s telephone account during company time, and in October 1990 he charged over 36 such calls to BMW’s account. The company’s telephone bill dated November 10, 1990, reflected total long distance charges of $229.79, $57.45 of which were charges generated by Reeves’s personal calls. In a meeting on November 19, 1990, Parks demanded that Reeves discontinue such personal use of the company telephone line. (At trial, Reeves testified that he offered to pay for the personal charges at that time, but Parks had stated that such reimbursement was unnecessary.)

Reeves, however, continued to make personal, long distance charges on the company telephone. A compilation of BMW’s telephone bills during Reeves’s employment reflected 19 long distance personal calls charged to BMW’s account in December 1990, and 23 such calls in January 1991. During his entire period of employment, Reeves made a total of 271 personal, long distance calls, 226 of which were charged to BMW’s account. On February 1, 1991, Reeves left a Friday afternoon office meeting to make a 44-minute personal telephone call, after which he left the premises to go home. The following Monday, Parks terminated Reeves’s employment.

Reeves subsequently commenced this action alleging fraud against Parks, and breach of contract against BMW. During the trial, the trial court directed a verdict in favor of Parks on Reeves’s claim that Parks had fraudulently induced him to sell his stock and enter the employment contract. However, the trial court denied BMW’s motion for directed verdict on Reeves’s claims for breach of contract and for expenses of litigation based upon bad faith.

The jury ultimately returned a verdict for Reeves in the amount of $30,000 on the breach of contract claim and $10,000 for expenses of litigation. BMW appeals from the judgment entered on that jury verdict, and Reeves cross-appeals from the trial court’s direction of a verdict for Parks on the fraud claim.

1. BMW contends that the trial court erred in failing to direct a verdict in its favor on Reeves’s claims for breach of contract and expenses of litigation, because Reeves’s repeated violations of certain terms of his employment contract prohibiting charging personal items to the company’s accounts and keeping his personal telephone calls to an absolute minimum authorized termination of his employment. In response, Reeves emphasizes that Parks declined his offer to reimburse the company for the long distance charges; that because his work hours extended from 7:00 a.m. to 5:00 p.m., it was reasonably expected that some personal phone calls were allowed; and that he attempted to compensate for taking up company time by not taking lunch or by working late.

“Our general rule with respect to compliance with contract terms is not strict compliance, but substantial compliance. [OCGA § 13-4-20]; [Cit.] ‘At common law a strict and literal performance of the terms of the contract was required; but by rules of equity, either adopted by statute or recognized by the courts, a substantial compliance with the terms of the contract is sufficient. . .’ [Cit.]” Dennard v. Freeport Minerals Co., 250 Ga. 330, 332 (297 SE2d 222) (1982).

In the instant case, Parks testified that his primary complaint was not the amount of the telephone charges involved, but rather the time away from the business while Reeves engaged in his personal calls. It was undisputed that Reeves persisted in making personal, long distance telephone calls charged to the company account, but there was evidence that he attempted to compensate for the company expense and time by offering to pay for the charges and working late. Although the evidence in this case certainly would have supported a jury verdict in favor of BMW on the breach of contract claim asserted by Reeves, we are unable to conclude that no issue of fact existed as to whether Reeves substantially complied with the subject conditions of the employment contract. Accordingly, the trial court did not err in denying BMW’s motion for directed verdict on this claim.

With regard to Reeves’s claim for expenses of litigation based upon bad faith breach of contract, we note that ‘“[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement.’ [Cit.]” Brack v. Brownlee, 246 Ga. 818, 820 (273 SE2d 390) (1980). Bad faith in the performance of a contract can be sufficient to sustain an award of attorney fees. McDonald v. Winn, 194 Ga. App. 459 (390 SE2d 890) (1990).

In this case, Reeves testified that when he asked Parks why Parks wanted him to leave the company, Parks never specified any reason. At trial, Parks refused to acknowledge that Reeves’s employment had been unilaterally terminated; rather, he maintained that he and Reeves had reached a mutual agreement that it was to the best interest of both parties that Reeves leave the company. However, an entry in Parks’s business diary for February 4, 1991, indicated “Decision on Will: Terminate Will’s employment with BMW.” The fact that Reeves’s violations of the terms of his employment contract occurred over such an extended period of time with Parks’s knowledge could either support a finding that Parks’s termination of Reeves’s employment did not take place earlier due to Parks’s patience, or that Reeves’s conduct, tolerated by Parks for so long, did not really provide the basis for Parks’s termination of Reeves’s employment. Under these circumstances, the trial court properly allowed the jury to resolve the issue.

2. BMW also contends that the trial court erred in denying its motion for new trial on the grounds that the verdict is contrary to the law and strongly against the weight of the evidence. However, “[w]here a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. [Cits.]” Taylor v. Ga. Power Co., 136 Ga. App. 412, 413 (221 SE2d 222) (1975). There is some evidence to support the jury’s verdict in the instant case, and thus we will not disturb the trial court’s denial of BMW’s motion for new trial based on the general grounds.

3. After close of the evidence in the case, an attorney who was a member of the law firm representing Reeves had a brief conversation with one of the jurors in the case. This attorney had been active in pretrial matters, but did not participate in the trial of the case, and had not entered the courtroom with Reeves’s trial counsel. In response to BMW’s motion for mistrial based on this contact, the trial court immediately questioned both the attorney and the juror.

This inquiry established that the attorney and the juror had known each other for several years, and that the attorney had provided legal services to the juror and her family business. This relationship was fully disclosed during voir dire. Both the attorney and the juror indicated that the conversation consisted only of small talk asking how each other was, without any reference to the case at trial, and the juror stated that nothing in the nature of this brief contact would influence her decision in the case. After this inquiry, the trial court offered to excuse the juror and proceed with a jury of 11, but BMW declined the option. The trial court then denied the motion for mistrial.

“ ‘Ordinarily motions for (new trial) because of improper conduct of jurors or parties are addressed to the sound discretion of the trial judge. (Cit.) Unless there is an abuse of discretion, the appellate court will not upset the trial judge’s determination. (Cits.)’ [Cit.]” Wright v. Satilla Rural Electric Cooperative, 179 Ga. App. 230, 231 (345 SE2d 892) (1986). In the instant case, “ ‘[t]he evidence . . . affirmatively reveals that the [attorney] and the juror did not converse concerning the case or in reference to any matter that could have affected a fair trial of the same.’ ” Glennville Wood Preserving Co. v. Riddlespur, 156 Ga. App. 578, 581 (276 SE2d 248) (1980). The trial court did not abuse its discretion in denying the motion for mistrial.

Decided June 17, 1993 —

Reconsideration denied July 8, 1993 —

Watson, Spence, Lowe & Chambless, W. Earl McCall, Evans J. Plowden, Jr., Dawn G. Benson, for Building Materials Wholesale, Inc. & Parks.

Hodges, Erwin, Hedrick & Kraselsky, William A. Erwin, for Reeves.

4. In his cross-appeal, Reeves contends that the trial court erred in directing a verdict on his fraud claim asserted against Parks. The basis for his claim of fraud essentially was that Parks wanted control of the business, and set about to achieve such by exercising the buy/ sell clause in the shareholders’ agreement and executing an employment contract with Reeves with the intention of discharging Reeves later.

However, as pointed out by Parks, Reeves could have exercised his option to buy out Parks’s interest in the company, but chose not to do so, in part because of the specter of personal liability for $500,000 in corporate debt. Further, it was Reeves who proposed the employment contract as a condition to selling his stock to Parks.

At trial, Parks acknowledged that he had been dissatisfied with Reeves’s work performance prior to the stock sale and execution of the employment contract. Reeves argues that he was unaware of any prior dissatisfaction and that Parks’s failure to advise him of such before execution of the employment contract was an indication of Parks’s fraudulent intent. However, contrary to Reeves’s assertion that he had no indication of any prior dissatisfaction felt by Parks, a letter from the company attorney to the parties (and signed by both parties) on the day of the sale and execution of the employment contract remarked: “On the one hand I regret that the current arrangement has not worked to your total satisfaction, but on the other hand I am glad that you can resolve your differences and continue to work together.”

Reeves emphasizes that fraud may be proved by slight circumstantial evidence, or may be established by inference from facts in evidence. Miner v. Harrison, 205 Ga. App. 523, 525 (2) (422 SE2d 899) (1992). Nevertheless, we agree with the trial court that there was no evidence supporting a finding of fraud in this case, and direction of a verdict on that issue was proper.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A93A0819.
    PIERCE v. THE STATE.
    (433 SE2d 641)
   Blackburn, Judge.

The appellant, Millicent Pierce, was indicted for the July 7, 1991, murder of her husband, Dr. Michael Pierce. Following a trial by jury, she was found guilty of the lesser included offense of voluntary manslaughter, and sentenced to 12 years’ imprisonment. This timely appeal follows the trial court’s denial of her motion for new trial.

1. In her first enumeration of error, Pierce contends that the trial court erred in admitting her statement in violation of the Fifth and Sixth Amendments of the United States Constitution and OCGA § 24-3-50. More specifically, Pierce contends that the trial court erred in ruling that she had not invoked her right to remain silent. She contends that the invocation of the right was not scrupulously honored by the officers prior to the reinitiation of questioning which resulted in the incriminating statement. We disagree.

During the taped interview of July 7, 1991 at approximately 5:20 a.m., with Investigator Keith Lee and Officer Sharp-Parker, Pierce was informed of her right to remain silent and right to counsel, and she indicated that she understood these rights. She further admitted that she killed her husband. Immediately afterwards, she stated that she was in no shape to answer the questions that had been asked of her. The interrogation ceased at 5:27 a.m. after Investigator Lee asked Pierce to submit to blood and urine tests, which she agreed to do. The interrogation resumed at 7:40 a.m., and Pierce was again informed of her right to remain silent and right to representation, at which time Pierce again indicated that she understood these rights. Although Pierce at 5:20 a.m. refused to sign a written form acknowledging that she had been informed of her right to remain silent and right to representation, at 7:40 a.m. she acknowledged in writing that she had been informed of these rights.

During a police interrogation of a suspect, ‘“[i]f the (person in custody) indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.’ (Emphasis supplied.)” Hatcher v. State, 259 Ga. 274, 276 (379 SE2d 775) (1989), quoting Miranda v. Arizona, 384 U. S. 436, 473-474 (86 SC 1602, 16 LE2d 694) (1966). “Although the right to silence is not protected by a per se rule of ‘permanent immunity’ against further police-initiated interrogation, [cit.], nevertheless, ‘a suspect’s request to cut off questioning serves as a complete bar to any questioning (initiated by the police) ... for a “significant period of time” after the request.’ [Cit.]” Id. at 277.

In the case sub judice, the evidence shows that the officers ceased their questioning of the defendant shortly after she indicated that she was in no shape to answer the questions. However, “[w]e pretermit a determination whether [Pierce] equivocally or unequivocally invoked h[er] right to remain silent. We do so because we conclude that, even if [s]he did equivocally or unequivocally invoke h[er] right to remain silent, any error in admitting the [July 7, 1991] statement would be harmless, as” the statement was cumulative of the testimony given by Pierce at trial. (Citations omitted.) Tankersley v. State, 261 Ga. 318, 321 (2) (404 SE2d 564) (1991). See also Mitchell v. State, 260 Ga. 229, 230 (2) (391 SE2d 761) (1990). Further, “ ‘[a] trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will withstand attack on appeal unless they are clearly erroneous. (Cit.)’ [Cit.]” McDaniel v. State, 204 Ga. App. 753, 754 (1) (420 SE2d 636) (1992). Inasmuch as there is evidence to support the trial court’s findings that Pierce’s statement was freely and voluntarily given, we find that this enumeration is without merit.

2. Pierce further contends that the trial court erred in admitting the testimony of Investigator Dewey Brown, the chief investigator with the DeKalb County Medical Examiner’s Office, in violation of OCGA § 17-7-211, the Fourteenth Amendment of the United States Constitution and the Georgia Constitution of 1983,' Art. I, Sec. I, Par. I. Although OCGA § 17-7-211 (b) provides, in part, that a “defendant shall be entitled to have a complete copy of any written scientific reports in the possession of the prosecution which will be introduced in whole or in part against the defendant by the prosecution in its casein-chief or in rebuttal,” the testimony of the investigator was not admitted in the form of a scientific report as defined within the Code section. “It is well-established that the State is not required, under OCGA § 17-7-211, to furnish defendant with its expert’s notes, work product, recordation of data, internal documents, or graphs. [Cits.] Thus, it becomes necessary to distinguish between those documents beyond the purview of the statute and those scientific reports which must be provided to defendant if they are to be admitted into evidence. In determining what constitutes a ‘written scientific report’ it has been stated that the common element is that ‘each includes the examiner’s findings based on scientific analysis or his or her opinion.’ [Cits.]” Roberts v. State, 196 Ga. App. 450 (396 SE2d 81) (1990). The investigator based his testimony on the position of the victim at the time that he was shot solely upon his observation of the scene of the incident. We are satisfied that any notes that may have been compiled by Investigator Brown, are not within the purview of OCGA § 17-7-211. See also Ramsey v. State, 165 Ga. App. 854, 856 (2) (303 SE2d 32) (1983).

3. In her third enumeration of error, Pierce contends that the trial court erred in failing to give her requested pattern charge on statements. We disagree.

“ ‘It is well settled that the trial court is not obligated to instruct the jury in the exact language requested and that, where the same principle of law is covered in another instruction, failure to give the requested charge is not error.’ [Cits.]” Montgomery v. State, 204 Ga. App. 534, 537-538 (6) (420 SE2d 67) (1992). See also Johnson v. State, 204 Ga. App. 246, 247 (2) (419 SE2d 107) (1992). Although the court did not charge the jury as to the effect of the police’s initiation of further questioning of Pierce after Pierce invoked her right to remain silent, the trial court concluded at the Jackson-Denno hearing that Pierce’s statement was given freely and voluntarily. As a result, the trial judge did charge the jury that “[t]o make a statement by a defendant charged in a criminal case admissible, it must have been made voluntarily and without being induced by another by the slightest hope of benefit or the remotest fear of injury.” The trial court further cautioned the jury to scan the statement with care. Inasmuch as the trial court charged the jury on the correct principle of law, and counsel for Pierce failed to object to the charge as given, we conclude that the trial court’s refusal to charge the jury as specifically requested by Pierce was not erroneous.

4. Lastly, Pierce contends that the trial court erred in denying her motion for directed verdict. However, a directed verdict is warranted only “[w]here there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty’ as to the entire offense or to some particular count or offense. ...” OCGA § 17-9-1 (a). See also Martin v. State, 189 Ga. App. 483, 489 (5) (376 SE2d 888) (1988); Cobb v. State, 195 Ga. App. 429, 430 (2) (393 SE2d 723) (1990). Based upon Pierce’s uncontradicted testimony that she shot her husband twice on the morning in question, “it cannot be said that there was no conflict in the evidence and the evidence demanded a verdict of acquittal. [Cit.]” Martin, supra at 489. Where the evidence authorizes a conviction, it cannot be found to have demanded a verdict of acquittal. Milner v. State, 159 Ga. App. 887 (1) (285 SE2d 602) (1981). Although Pierce maintains that she shot her husband in an act of self-defense, Investigator Brown stated, based upon his observations, that the victim was shot in his right temple at close range while he was slumped against the side of the bed, after Pierce had shot him initially in the chest. This testimony contradicts Pierce’s version that she shot the victim the second time after he fell towards her and while he was standing in front of her. The jury considered the mitigating circumstances surrounding the death of the victim as testified to by Pierce and witnesses on her behalf, specifically the victim’s abusive treatment of Pierce and others, and returned a verdict against Pierce on the lesser included offense of voluntary manslaughter. We find that a rational trier of fact could find from the evidence adduced at trial proof of Pierce’s guilt of voluntary manslaughter beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Consequently, this enumeration is without merit.

Decided June 24, 1993 —

Reconsideration denied July 8, 1993 —

Garland, Samuel & Loeb, R. Stephen Roberts, Cathy M. Alterman, for appellant.

J. Tom Morgan, District Attorney, Stacy Y. Cole, Thomas S. Clegg, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A93A0264.
    WINTERS v. RELIANCE STANDARD LIFE INSURANCE COMPANY.
    (433 SE2d 363)
   Smith, Judge.

Appellant-plaintiff’s wife was insured pursuant to a group accident and life insurance policy issued by Reliance Standard Life Insurance Company (Reliance), and Mr. Winters was her designated beneficiary. When Mrs. Winters died, Reliance refused to pay benefits under the policy, and Mr. Winters brought the instant contract action. After discovery, cross-motions for summary judgment were filed. Mr. Winters appeals from the order of the trial court granting Reliance’s motion for summary judgment and denying his.

1. The policy “insures against certain losses. . . . These losses must result directly and independently of all other causes from bodily injury caused by accident which occurs while this policy is in force.” (Emphasis supplied.) Among the specified exclusions were losses caused by intentionally self-inflicted injuries or by suicide. According to the death certificate, the clinical cause of death was circulatory failure due to intoxication. At the time of her death, Mrs. Winters’s blood alcohol level was .49 grams percent.

The question for determination is whether the policy language affording coverage for “bodily injury . . . caused by accident” requires proof of injury caused by “accidental means” or whether coverage is afforded to an “accidental injury.” After an extensive review of the authorities, we hold that the trial court correctly interpreted the language of this policy to require a showing that the loss was the unexpected result of an unforeseen or unexpected act which was involuntarily or unintentionally done, i.e., that the injury resulted from “accidental means.”

In Georgia, there is “a very definite distinction between ‘accidental injuries’ and ‘injuries resulting from accidental means.’ Where an injury is unexpected but arises from a voluntary action it is an ‘accidental injury,’ but for an injury to result from accidental means, it must be the unexpected result of an unforeseen or unexpected act which was involuntarily and unintentionally done. [Cits.]” (Emphasis supplied.) Johnson v. Nat. Life &c. Ins. Co., 92 Ga. App. 818, 819 (1) (90 SE2d 36) (1955). “[T]he expression ‘means’ used in this [type of] policy clause is synonymous with ‘cause.’ ” 1A Appleman, Insurance Law and Practice, § 363 (1981 ed.) “The term ‘accidental means’ refers to the occurrence or happening which produces the result, rather than the result; it is concerned with the cause of the harm rather than the character of the harm.” 10 Couch on Insurance 2d § 41:29 rev. ed. (1982). Substantially similar language has been held to require a showing of death by “accidental means.” Continental Assurance Co. v. Rothell, 227 Ga. 258 (181 SE2d 283) (1971). Other jurisdictions have also reached the determination that injury “caused by accident” is the equivalent of injury caused by “accidental means.” See Chelly v. Home Ins. Co., 285 A2d 810, 813 (Del. Super. 1971), aff’d 293 A2d 295 (Del. 1972). See also Laney v. Continental Ins. Co., 757 F2d 1190 (11th Cir. 1985) (applying Georgia law).

2. “Where an accident policy insured against ‘the effects of bodily injuries sustained directly, solely, and exclusively through accidental means,’ resulting in the death of the insured, it was necessary, in an action thereon, to show that in the act which preceded the injury alleged to have caused [her] death something unforeseen, unexpected, or unusual occurred.” Fulton v. Metro. Cas. Ins. Co., 19 Ga. App. 127 (2) (91 SE 228) (1917). The policy language at issue, insuring against losses resulting from “bodily injury caused by accident,” insures against unforeseen injuries caused by “accidental means.” It must appear “ ‘that the insured’s death arose by means used which were accidental. “Where an unusual or unexpected result occurs, by reason of the doing of an intentional act, with no mischance, slip, or mishap occurring in doing the act itself, the ensuing injury or death is not caused by accidental means.” [Cit.]’ ” (Emphasis supplied.) Jackson v. Nat. Life &c. Ins. Co., 130 Ga. App. 208, 209 (202 SE2d 711) (1973). The undisputed evidence in the trial court showed that the decedent’s intake of a lethal amount of ethyl alcohol was voluntary and intentional. Appellee submitted unrebutted evidence that the foreseeable result of such intake was injury or death. There is no evidence of “mischance, slip, or mishap” to bring the intentional act of imbibing within the reach of the policy language requiring unforeseen loss caused by accidental means. Compare Interstate Life &c. Ins. Co. v. Brown, 141 Ga. App. 195 (1) (233 SE2d 44) (1977). The trial court correctly granted appellee’s motion for summary judgment.

Decided June 23, 1993 —

Reconsideration denied July 9, 1993 —

Ranitz, Mahoney, Coolidge & Mahoney, Thomas J. Mahoney, Jr., Thomas J. Mahoney III, for appellant.

Miller, Simpson & Tatum, John M. Tatum, Robert A. Lewallen, Jr., for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A0657.
    VAX v. ALBANY LAWN & GARDEN CENTER et al.
    (433 SE2d 364)
   Smith, Judge.

Rita Vax was injured in 1988 while mowing her lawn when the riding mower her husband had purchased in 1981 “reared up,” causing her to fall and injure her leg on the blade. She brought suit against the manufacturer of the mower, the distributor, and the retailer, alleging claims of negligence, strict liability, and breach of warranty. She appeals from the trial court’s grant of summary judgment in favor of the defendants. We affirm.

It is unclear which warranties Vax claims were breached, and the argument in her brief is directed at the claims of negligence and strict liability. Her claims stem from her contention that the absence of a “smooth start clutch” and a “deadman control” (a device that stops the mower when the operator leaves the seat), which features were incorporated into later model mowers, rendered the mower defective in design, making the manufacturer, Snapper Power Equipment, strictly liable for her injuries. She also contended Snapper was negligent in concealing the defect and in failing to advise her of the existence of conversion kits available to add the “smooth start clutch” feature.

1. Whether sounding in negligence or product liability, Vax’s claim is essentially that the mower she bought was not the safest machine available at the time of her injury. The law does not require, however, that a manufacturer produce or sell only the safest products it is capable of making. Weatherby v. Honda Motor Co., Ltd., 195 Ga. App. 169, 170 (393 SE2d 64) (1990); Stovall & Co. v. Tate, 124 Ga. App. 605, 611 (1) (184 SE2d 834) (1971). “Generally, [i]f a manufacturer does everything necessary to make the machine function properly for the purpose for which it is designed, if [it] is without any latent defect, and if its functioning creates no danger or peril that is not known to the user, then the manufacturer has satisfied the law’s demands.” (Citations and punctuation omitted.) Poppell v. Waters, 126 Ga. App. 385, 387 (1) (190 SE2d 815) (1972). Vax admitted that the absence of the two devices did not render the mower unsuitable for cutting grass, its intended use and, in fact, admitted she had experienced no “mechanical” problems with the mower. Although not binding on this court, we agree with the reasoning in Pressley v. Sears-Roebuck & Co., 738 F2d 1222 (11th Cir. 1984), and concur in its conclusion that the absence of devices such as a deadman control does not make a lawnmower defective. Id. at 1224.

Decided June 23, 1993 —

Reconsideration denied July 9, 1993.

Langley & Lee, Donald W. Lee, for appellant.

Watson, Spence, Lowe & Chambless, Mark A. Gonnerman, Dawn G. Benson, Perry, Walters & Lippitt, R. Edgar Campbell, for appellees.

Moreover, the absence of the features in issue was not concealed. It was clear when the mower was purchased that it lacked these features, which were developed later. Although their absence may not have been apparent immediately simply by viewing the lawnmower, here, as in Barnes v. Harley-Davidson Motor Co., 182 Ga. App. 778 (357 SE2d 127) (1987), the alleged defects were admittedly evident when the mower was operated. Even assuming the absence of these features was a defect, the fact that the defect was not latent but open and obvious constitutes an absolute legal defense to Vax’s claim of negligent manufacture or design. See Stodghill v. Fiat-Allis Constr. Machinery, 163 Ga. App. 811, 814 (295 SE2d 183) (1982); Greenway v. Peabody Intl. Corp., 163 Ga. App. 698 (294 SE2d 541) (1982). Despite criticism of the “open and obvious” rule, it remains the law in this state. Weatherby v. Honda Motor Co., Ltd., supra at 170. Further, no duty exists to warn of obvious common dangers associated with the use of a product. Hunt v. Harley-Davidson Motor Co., 147 Ga. App. 44, 45 (248 SE2d 15) (1978). Accordingly, summary judgment was properly granted to Snapper.

2. Because the mower was not defective, summary judgment in favor of the distributor, Potter Motor Company, and the retailer, Albany Lawn & Garden Center, on the negligence claim was proper as well. Moreover, not being manufacturers, neither Potter nor Albany Lawn could be held strictly liable under a theory of strict liability. Ellis v. Rich’s, Inc., 233 Ga. 573, 577-578 (212 SE2d 373) (1975).

Judgment affirmed.

Johnson, J., concurs. Blackburn, J., concurs in judgment only.


text:
    A93A0801.
    EXXON CORPORATION v. JONES.
    (433 SE2d 350)
   Blackburn, Judge.

The appellee/plaintiff, Albert Jones, brought the instant negligence and product liability action against appellant/defendant Exxon Corporation (Exxon) and defendant Túgalo Gas Company (Túgalo), the retail distributor of the gas, as a result of an explosion which occurred while Jones and his deceased wife were visiting the home of the Carsons, in-laws of Jones. The explosion resulted in the death of Jones’ wife, and in Jones sustaining serious and disabling injuries. The explosion was caused by the ignition of gas vapors. The gas had been delivered to the Carsons’ home by Túgalo who in turn purchased the gas from Exxon. In addition to acts of negligence asserted against Túgalo, Jones specifically asserted in his complaint that Exxon negligently failed to warn of the dangerous propensities associated with the use of its product, negligently sold LP gas to inadequately trained personnel, and negligently failed to adequately train those personnel handling its LP gas. Exxon responded to the complaint, and asserted several defenses. After the commencement of discovery, Exxon’s initial motion for summary judgment was denied by the trial court. Approximately nine months later, Exxon renewed its motion for summary judgment and this motion was also denied by the trial court. The trial court, however, certified the matter for immediate review, and we granted Exxon’s interlocutory application.

The record viewed in the light most favorable to Jones, the nonmovant, shows that Túgalo has purchased liquified petroleum gas in bulk from Exxon continuously since 1978 for the purpose of selling the gas to consumers. The gas arrives in Georgia through a pipeline source in Milner, Georgia, and is thereafter transported by Túgalo trucks from Milner, Georgia to Tugalo’s facility in Toccoa, Georgia, where it is sold to the ultimate consumer. On September 28, 1984, George Roberts, a driver employed lay Túgalo, delivered approximately 400 gallons of gas to the Carsons’ home. He admitted that he had been given a pamphlet from Túgalo on the handling of LP gas. However, he has not received any training from Exxon. On the day in question, he turned off the gas supply to the Carsons’ home and left a delivery ticket on the lid notifying the Carsons that the gas supply to the home had been turned off because the Carsons’ tank was empty. Carson was aware of the delivery and opened the valve to permit the gas to flow from the tank.

Robert Axworthy, an official with a major LP gas manufacturer, averred in an affidavit that, according to the standards of the industry, Tugalo’s delivery driver should have advised the Carsons not to open the tank valve until an LP professional could check the system for leakage since the Carsons’ tank had been completely empty. The purpose of this standard is to protect the customer from critical dangers such as explosions. He further declared that Exxon violated the safety standards by not supplying Túgalo with sufficient safety literature and training.

Upon his arrival for a visit at the Carsons’ home on October 4, 1984, Jones and his wife smelled gas vapors. Jones was aware that a gas leakage could cause an explosion and was familiar with the underground gas lines. As his wife walked into the home of the Carsons following a shopping trip with Mrs. Carson, the decedent’s sister, the explosion occurred, resulting in the injuries to Jones and the death of his wife. According to a fire safety specialist with the state fire marshal’s office, the explosion occurred between the floor of the house and the ground, which was the area where the LP gas had accumulated. Approximately 250 gallons of LP gas had gathered under the Carsons’ home between the date of delivery and the date of the explosion. The LP gas tank was located approximately 17 feet from the exterior of the Carsons’ home.

In support of its renewed motion for summary judgment, Exxon submitted the affidavit of James Cornwell, Sr., a former account executive with Exxon. In the affidavit, Cornwell averred that he observed that pamphlets concerning the safety of LP gas were mailed directly to the customers by Túgalo. He also opined that Túgalo and its employees were trained in and familiar with the safe handling of LP gas. Wilson Evans, a former marketing executive with Exxon, was also familiar with Tugalo’s employees’ training in the safe handling of LP gas. In a supplemental affidavit, Tugalo’s president indicated that Tugalo’s employees attended safety training schools and Túgalo conducted in-house safety meetings for all of its personnel. Moreover, Jones has admitted in his brief in opposition to Exxon’s motion for summary judgment that Exxon had provided Túgalo with material safety data sheets which contained warnings, instructions, and other guidelines regarding the handling of the gas, but did not provide instructions on out-of-gas procedures.

In its sole enumeration of error, Exxon contends that the trial court erred in denying its renewed motion for summary judgment because it had no duty to warn the ultimate consumer of the LP gas of the potential gas leaks. More specifically, Exxon maintains that it delivered the gas in bulk to a learned intermediary/sophisticated distributor and acted as a “bulk supplier” to a knowledgeable distributor that distributed the gas to and dealt with the ultimate consumer.

“In a products liability case predicated on negligence, the duty imposed is the traditional one of reasonable care and the manufacturer need not provide, from a design standpoint, a product incapable of producing injury. Georgia law does not require a manufacturer to occupy the status of an insurer with respect to product design. . . . The manufacturer is under no obligation to make a [product] accident proof or foolproof, or even more safe. The public policy enunciated by the legislature is a predominate factor in our determination.” (Citations and punctuation omitted.) Weatherby v. Honda Motor Co., Ltd., 195 Ga. App. 169, 170 (393 SE2d 64) (1990). “ ‘Whether a duty to warn exists . . . depends upon foreseeability of the use in question, the type of danger involved, and the foreseeability of the user’s knowledge of the danger. [Cit.] Such matters generally are not susceptible of summary adjudication and should be resolved by a triál in the ordinary manner. (Cit.)’ [Cit.] However,. . . since the product was sold to a commercial operator which may reasonably have been expected to be familiar with the dangers resulting from such misuse or neglect, we do not believe that the manufacturer’s failure to warn of such dangers may be considered the proximate cause of the injury. To hold otherwise would be to place upon the manufacturer the impossible task of cataloging every conceivable way in which injury might result from the negligent operation or maintenance of a product.” Omark Indus. v. Alewine, 171 Ga. App. 207, 209 (319 SE2d 24) (1984). “There is no ‘duty on the manufacturer or seller to warn of obvious common dangers connected with the use of a product.’ [Cit.] ‘Where the product is vended to a particular group or profession, the manufacturer is not required to warn against risks generally known to such group or profession.’ [Cits.]” Eyster v. Borg-Warner Corp., 131 Ga. App. 702, 704 (4) (206 SE2d 668) (1974). See also Stiltjes v. Ridco Exterminating Co., 178 Ga. App. 438, 441 (2) (343 SE2d 715) (1986).

In the case sub judice, it is undisputed that Exxon sold LP gas in bulk to Túgalo, a commercial distributor that should have been aware of the dangers involved in the handling of LP gas. Since Túgalo was the direct seller of the gas to the ultimate consumer, the Carsons, and the injury allegedly resulted from the negligent delivery of the gas to the Carsons, rather than a defect in the product itself, Exxon’s failure to warn cannot be considered the proximate cause of Jones’ injuries and the death of his spouse. The record shows that the explosion resulted from an improper leakage of gas. According to rules published by the National LP Gas Association, an association of which Túgalo has admitted in an interrogatory response that it has been trained by, a deliveryman is supposed to check the gas tank for leakage and insure that the customer has closed all service valves prior to the introduction of the gas into the customer’s system. Any duty owed to Jones in the handling of the gas after its delivery, was owed by Túgalo, not Exxon. Although Jones maintains that Exxon negligently sold gas to inadequately trained personnel and failed to train those personnel handling the gas, the record shows as admitted by Jones that Exxon provided literature to Túgalo concerning its product. In addition, Tugalo’s president averred that the company’s personnel are trained in the handling of gas. Moreover, Jones has admitted that he was aware of the danger of an explosion from the gas leakage. Inasmuch as Jones has failed to show that Exxon breached any duty of care owed to him and his deceased wife, and that any breach was the proximate cause of the explosion, Exxon was entitled to summary judgment as a matter of law, and the trial court erred in failing to grant the motion.

Decided June 22, 1993 —

Reconsideration denied July 9, 1993 —

Alston & Bird, Linda G. Carpenter, Dow N. Kirkpatrick II, for appellant.

Lane, O’Brien, Caswell & Taylor, Richard L. Ormand, Darryl B. Cohen, Marsha L. Sutherland, for appellee.

Judgment reversed.

Johnson and Smith, JJ., concur.

       Defendant Túgalo is not involved in this appeal.


text:
    A93A0836.
    HOPKINS v. THE STATE.
    (434 SE2d 74)
   Blackburn, Judge.

Appellant, Marty Raymond Hopkins, appeals his conviction of cruelty to children and the trial court’s denial of his motion for new trial. The charge of child cruelty against Hopkins was based on Hopkins’ former wife’s allegations that Hopkins whipped their three-year-old son Trent with a belt, causing severe bruising on Trent’s back, buttocks, and legs.

Hopkins’ former wife, Donna Hopkins, testified that although she and Hopkins were divorced in 1987, they were attempting to reconcile in November 1989, and Hopkins had moved into the house in which she and Trent lived. During the night of November 21, 1989, Donna allowed Trent to sleep in her bed, as Hopkins was not at home when Donna went to bed. Donna testified that when Hopkins arrived home and found Trent sleeping in Donna’s bed, he became outraged. He yanked Trent out of bed, grabbed a belt from the floor, and took Trent into Trent’s bedroom. Thereafter, Donna heard Trent crying and she went into Trent’s bedroom where she saw Hopkins beating Trent with the belt. Donna intervened and stopped Hopkins from continuing the beating because, “he was whipping [Trent] too hard.” The next day Donna noticed the bruises on Trent and she refused to let Hopkins take care of Trent while she was at work. Instead, she took Trent to her mother’s house, where her mother took pictures of Trent’s bruises. The pictures were introduced into evidence during Hopkins’ trial.

1. In his first enumeration of error, Hopkins asserts that the evidence was insufficient to enable a rational trier of fact to find him guilty of cruelty to children beyond a reasonable doubt. In order to sustain a conviction for child cruelty, there must be proof beyond a reasonable doubt that Hopkins “maliciously cause [d] a child under the age of 18 cruel or excessive physical or mental pain.” OCGA § 16-5-70 (b). Hopkins argues, citing Caby v. State, 249 Ga. 32 (287 SE2d 200) (1982), that the statute is not designed to reach legitimate child rearing functions. Therefore, Hopkins argues, because “this case involved bruises only,” what occurred falls within “normal discipline” which the statute does not encompass.

Hopkins’ argument fails to take into account that the determination of what is cruel or excessive physical or mental pain is to be made by the jury. See Murray v. State, 135 Ga. App. 264 (217 SE2d 293) (1975); Crowe v. Constitution Pub. Co., 63 Ga. App. 497 (11 SE2d 513) (1940) (decided under former Code 1933, § 26-8001). In the present case, the jury determined that Hopkins’ conduct caused cruel or excessive physical or mental pain to Trent. Having viewed the evidence in the light most favorable to the jury’s determination, we conclude that the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), was met.

2. Hopkins next contends that the trial court erred in allowing the State to inject his character into evidence. Hopkins bases this enumeration on Donna’s testimony that she was raising Trent by herself and that Hopkins was not providing child support for Trent. We find that, if it was error for the trial court to allow this testimony, it was harmless. The testimony was elicited as background evidence regarding Trent’s primary caregivers which included Donna and her mother, but did not include Hopkins. “It is, of course, settled that harmless error will not authorize a reversal by this court.” (Citations and punctuation omitted.) McAlister v. State, 204 Ga. App. 259, 262 (419 SE2d 64) (1992).

3. In his third enumeration of error, Hopkins argues that the trial court violated his due process rights in failing to allow the cross-examination of Donna’s mother, with regard to the nature of her relationship with him. We disagree. The relationship between Hopkins and his former mother-in-law was completely irrelevant to the issue of whether Hopkins was guilty of cruelty to children. Furthermore, such testimony would have been cumulative, as Hopkins was allowed to testify that he and his former mother-in-law did not get along. “Where there is not a denial altogether of inquiry as to subjects relied on to show bias, the scope and extent of the cross examination for this purpose rests in the sound discretion of the trial court.” (Citations and punctuation omitted.) Weaver v. Ga. Power Co., 134 Ga. App. 696, 697 (215 SE2d 503) (1975). We find that the trial court did not abuse its discretion by limiting Hopkins’ cross-examination.

Decided June 24, 1993 —

Reconsideration denied July 9, 1993 —

Alden W. Snead, J. M. Raffauf, for appellant.

David McDade, District Attorney, Lois W. Gerstenberger, Assistant District Attorney, for appellee.

4. In Hopkins’ last enumeration of error, he contends that the trial court’s definition of reasonable punishment was vague and over-broad in violation of the constitutions of the United States and Georgia, in that the jury charge did not provide the jury with sufficient guidance on the difference between reasonable discipline and felony discipline. Although Hopkins states that his enumeration deals with the trial court’s “unconstitutionally vague and overbroad jury charge,” he primarily argues that OCGA § 16-5-70 is unconstitutional. Hopkins did not argue the constitutionality of the statute at the trial level and, therefore, it is not preserved for appeal. See Whatley v. State, 196 Ga. App. 73 (1) (395 SE2d 582) (1990).

Moreover, any assertion of error regarding the trial court’s failure to charge on “reasonable discipline” is also without merit. In Allen v. State, 174 Ga. App. 206, 208 (329 SE2d 586), cert. denied, 174 Ga. App. 923 (1985), we determined that implicit within the statute defining cruelty to children, was an element of unreasonableness. Therein, we held that it “was not error to fail to charge specifically on reasonable discipline.” Id.

Judgment affirmed.

Johnson and Smith, JJ., concur.