text:
    77586.
    LITTLE v. THE STATE.
    (376 SE2d 232)
   Banke, Presiding Judge.

The appellant was convicted of possessing cocaine and marijuana with intent to distribute. The contraband was seized during the execution of a search warrant for a pool hall known as “J. R.’s Game-room.” When police arrived to execute the warrant, the appellant was seated inside an automobile parked in front of the pool hall. The appellant testified that he immediately exited the automobile and began walking to a nearby liquor store, whereupon a detective confronted him and ordered him to go into the pool hall. However, the detective testified that the appellant exited the vehicle and went inside the pool hall entirely on his own initiative.

Upon entering the pool hall, the appellant deposited a white rag on a countertop and walked away from it. Having observed this, one of the officers inspected the rag and discovered several plastic bags containing suspected marijuana wrapped inside it. A subsequent search of the appellant’s person resulted in the discovery and seizure of several additional plastic bags and foil wrappers containing both cocaine and marijuana. The appellant was also found to be in possession of over a thousand dollars in cash. Held:

1. The appellant enumerates as error the denial of his pre-trial motion to suppress the contraband, contending that because he was not named in the search warrant, the officers were not authorized to search him. Initially, we reject the state’s contention that the appellant waived this alleged error by failing to repeat his objection to the evidence when it was offered at trial. See Kilgore v. State, 247 Ga. 70 (274 SE2d 332) (1981). However, we must also reject the appellant’s contention that the officers’ authority to search him was dependent upon the wording of the warrant. The officer who discovered the marijuana inside the rag testified at the hearing on the motion to suppress that he observed the appellant enter the pool hall, place the rag on the counter, and walk away from it. Under the circumstances, the trial court was authorized to conclude that the appellant had relinquished interest in the rag to the extent that he no longer had a reasonable expectation of privacy in it, with the result that the examination of its contents did not violate his Fourth Amendment rights. Cf. Bloodworth v. State, 233 Ga. 589 (2) (212 SE2d 774) (1975). The court was accordingly authorized to conclude that the ensuing search of the appellant’s person was a lawful search conducted incident to his arrest for possession of marijuana. See generally Jackson v. State, 111 Ga. App. 192, 194 (141 SE2d 177) (1965).

2. The appellant contends that the trial court erred in allowing the contraband to be introduced over his objection that the chain of custody had not been sufficiently established. In the alternative, he contends that the court should have given a jury charge on the chain-of-custody issue.

The trial court did not err in allowing the evidence to be introduced over the chain-of-custody objection. “Where the state seeks to introduce evidence of a fungible nature, it need only show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. [Cit.] . . . The fact that one of the persons in control of a fungible substance does not testify at trial does not, without more, make the substance or testimony relating to it inadmissible.” Palmer v. State, 250 Ga. 219, 222 (3) (297 SE2d 22) (1982). We are unable to review the appellant’s contention that the trial court erred in failing to give a jury charge on the chain-of-custody issue, inasmuch as he did not request any charge on the issue in the trial court, nor, for that matter, has he suggested on appeal what charge would have been appropriate. See generally OCGA § 5-5-24 (b).

Decided December 2, 1988.

George M. Saliba, for appellant.

H. Lamar Cole, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellee.

3. The trial court similarly did not err in failing to charge, without request, on simple possession as a lesser included offense. See generally State v. Stonaker, 236 Ga. 1 (222 SE2d 354) (1976). We reject the appellant’s contention that in the absence of such a charge the jury was without proper guidelines upon which to base a determination of guilt or innocence, with the result that the failure to give such a charge constituted “substantial error” which was “harmful as a matter of law” within the contemplation of OCGA § 5-5-24 (c). The court instructed the jury that the state was required “to prove every material allegation of the indictment and every essential element of the crime beyond a reasonable doubt.” Thus, if the jurors believed that the appellant had been in knowing possession of the contraband but that he had entertained no intention of distributing it, they were obliged simply to find him not guilty. If the appellant had wished to provide the jury the option of finding him guilty of a lesser included offense under such circumstances, it was within his power to do so simply by submitting the appropriate request to charge. Having elected instead to pursue an “all or nothing” strategy, he will not now be heard to complain that the choice was made for him by the trial court.

4. The court’s charge on reasonable doubt was neither confusing nor misleading, nor was it so incomplete as to constitute reversible error.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    77622.
    ATLANTA DEVELOPMENT COMPANY, LTD. v. PEEL & SONS, LTD.
    (377 SE2d 552)
   Banke, Presiding Judge.

“This is an appeal from an order denying a motion to intervene and add a party defendant in a case pending in the trial court. Since the order appealed from is not a final judgment [cits.], and the interlocutory appeal procedure specified by [OCGA § 5-6-34 (b)] has not been followed, the appeal must be dismissed. [Cits.]” Wallace v. Bledsoe, 244 Ga. 674 (261 SE2d 399) (1979).

Decided December 2, 1988.

William F. C. Skinner, Jr., for appellant.

Zion, Tarleton & Siskin, John J. Tarleton, for appellee.

Appeal dismissed.

Birdsong, C. J., and Beasley, J., concur.


author: McMurray, Presiding Judge. Deen, Presiding Judge, Carley, Judge, Beasley, Judge,

text:
    73757.
    SMITH v. CITY OF EAST POINT et al.
    (376 SE2d 215)
   McMurray, Presiding Judge.

In City of East Point v. Smith, 258 Ga. 111 (365 SE2d 432), the Supreme Court held that the city’s urinalysis testing in this case was reasonable under our State constitution. In so holding, the Supreme Court reversed our decision in Smith v. City of East Point, 183 Ga. App. 659 (359 SE2d 692). We had held that Smith’s constitutional rights were violated by an unreasonable search and seizure of his urine and that, therefore, Smith was discharged by the city without just cause. Id at 662. In view of the Supreme Court’s reversal of our decision, we must now examine the remaining enumerations of error set forth by Smith. Held:

1. The Personnel Board of Appeals which affirmed Smith’s termination, was composed of the mayor and four senior councilmen. Via motion to dismiss filed with the board, Smith challenged the composition of that body. In this regard, he pointed out that the city charter called for five members of the board — an attorney and four qualified electors of the city. Ga. L. 1972, pp. 2151, 2209. Smith’s jurisdictional challenge was rejected by the board and the superior court.

In our previous consideration of this case, we implicitly rejected Smith’s jurisdictional challenge and reached the merits of the urinalysis issue. Since we reversed the superior court on the ground that the urinalysis testing was unconstitutional, we saw no need to address the jurisdictional challenge explicitly. In view of the Supreme Court’s reversal of our decision, we now address Smith’s jurisdictional challenge explicitly.

At the outset, we note that on certiorari, the Supreme Court did not consider the jurisdictional challenge raised by Smith even though it ruled against Smith on the urinalysis issue. Thus, it would appear that the Supreme Court, too, rejected Smith’s jurisdictional challenge without discussion.

In 1972 the City of East Point’s charter was amended by the General Assembly. The amended charter provided for the appointment of a Personnel Board of Appeals to hear and decide cases of employees who were discharged or otherwise disciplined. The board was to consist of five members. At least one member of the board was to be an attorney. The remaining members of the board were to be qualified electors of the city. Ga. L. 1972, pp. 2151, 2209.

Five years later, via ordinance, the membership of the board was changed. See OCGA § 36-35-3. Pursuant to the ordinance, the Personnel Board of Appeals was to consist of the mayor and four senior councilmen. The ordinance was adopted on November 21, 1977. It was not to take effect, however, until the “adoption of a home rule charter amendment correcting and clarifying certain portions of the City Charter ...”

In 1979 a home rule charter amendment was adopted. Ga. L. 1979, p. 4803. It made various changes in the charter. It did not, however, speak to the composition of the Personnel Board of Appeals.

Smith takes the position that the 1972 charter amendment was never rescinded by the city council or the General Assembly. In this regard, he argues that the 1977 ordinance never took effect because an anticipated home rule charter amendment mirroring the ordinance was never enacted. We disagree.

The 1977 ordinance provided that it was not to become effective until the adoption of the home rule charter amendment. It did not require the adoption of any specific amendment with regard to the makeup of the Personnel Board of Appeals. It was simply to go into effect when a home rule charter amendment was adopted. That was done in 1979. It follows that the board which affirmed Smith’s termination was composed properly of the mayor and four senior councilmen pursuant to the 1977 ordinance and that the board was not without jurisdiction to entertain Smith’s appeal.

2. The initial notice of termination informed Smith that he was being discharged for conduct unbecoming his position. Smith requested more facts. Accordingly, Smith’s attorney was furnished with an amended notice informing him that “he did use a controlled substance identified as THC (marijuana).” And he was furnished “copies of all scientific reports ... in the possession, custody, or control of the City of East Point.” Thereafter, Smith’s appeal was heard by the Personnel Board of Appeals.

Smith moved to dismiss the proceeding on the ground that the original notice of termination was insufficient. The motion was overruled by the board and the superior court affirmed.

Smith asserts the superior court erred in affirming the decision of the board because the initial notice of termination did not set forth the reason for Smith’s discharge with specificity. This assertion is without merit.

It is well-settled that an employee is entitled to be furnished with specific reasons for his discharge. See Scott v. Undercofler, 108 Ga. App. 460 (133 SE2d 444). The notice should be sufficient enough to enable the employee to prepare any defense the employee may have to the charge. See Schaffer v. State Bd. of Veterinary Medicine, 143 Ga. App. 68, 69 (237 SE2d 510). If, however, the initial notice is insufficient, it can be amended to set forth the grounds of discharge specifically. Schaefer v. Clark, 112 Ga. App. 806 (146 SE2d 318).

“ ‘The key to pleading in the administrative process is adequate opportunity to prepare. When an original notice or pleading is inadequate, it is normally supplemented by informal communication, by formal amendment, by a bill of particulars, by prehearing conferences, or by ample continuances at the hearing. And the question on review is not the adequacy of the original notice or pleading but is the fairness of the whole procedure.’ Davis on Administrative Law (1951) § 80, pp. 279-290.” Schaefer v. Clark, 112 Ga. App. 806, 808, supra.

Although the original notice of discharge furnished to Smith was insufficient, the notice was amended by facts enabling Smith to prepare a defense and to meet the issues involved in the case. Accordingly, we find no error with regard to the insufficiency of the original notice.

3. Smith contends the results of the urinalysis were inadmissible because the chain of custody was not proven sufficiently. We disagree.

It was demonstrated with reasonable certainty that the urine sample taken from Smith was the sample which was tested and that there was no tampering or substitution. Mutcherson v. State, 179 Ga. App. 114 (345 SE2d 661). It follows that the results of the urinalysis were admitted properly. Any doubt about the identity or purity of the sample went to its weight, not its admissibility. Mutcherson v. State, supra; Fowler v. State, 179 Ga. App. 492, 494 (4) (347 SE2d 322).

The contention is also made that the urinalysis results were inadmissible because the person who conducted the tests did not testify. This contention also fails. The test results were duly admitted as business records. An expert witness, the director of the laboratory at which the tests were conducted, testified that the results were indicative of marijuana use. It was not necessary to offer the testimony of the person who conducted the tests in order to lay a foundation for admitting the results. Wilson v. Childers, 174 Ga. App. 179, 181 (4) (329 SE2d 503); McCall v. Parker, 177 Ga. App. 774 (341 SE2d 303); Tillman & Deal Farm Supply v. Deal, 146 Ga. App. 232, 234 (246 SE2d 138). See Venenga v. State, 163 Ga. App. 161 (293 SE2d 553).

Equally without merit is the contention that the test results were inadmissible because two of the three tests which were conducted proved negative for marijuana. The negative test results bore upon the weight, not the admissibility, or the positive test result evidence.

4. The charter of the City of East Point provides, in part: “All officers and employees of said city shall be subject to discharge or removal from their connection with the city for drunkenness, dishonesty, failure to perform their duties, immoral or indecent conduct, or oppressive or abusive use of official position or power, or other conduct unbecoming their station, office or position.” Ga. L. 1972, pp. 2151, 2187, 2188. Given this provision, it cannot be said that Smith’s discharge constituted excessive punishment.

5. Smith’s constitutional privilege against self-incrimination was not violated by the taking of the urine sample. Raines v. White, 248 Ga. 406 (284 SE2d 7); Welch v. State, 254 Ga. 603, 606 (3) (331 SE2d 573).

6. It is argued that the taking of the urine sample violated Art. I, Sec. I, Par. X of the Const, of the State of Ga. In this regard, the contention is made that the taking of the urine sample constituted an ex post facto law, retroactive law, or a law impairing the obligation of contract.

We find no violation of the cited constitutional provision. Simply put, the taking of the urine sample was not a legislative enactment.

Judgment affirmed.

Birdsong, C. J., Banke, P. J., Sognier and Pope, JJ., concur. Deen, P. J., concurs and also concurs specially. Carley, Benham and Beasley, JJ., dissent.

Deen, Presiding Judge,

concurring specially.

Were this court now deciding this case for the first time with a clean slate, I would concur with the opinions and outcomes advocated by Presiding Judge McMurray in Smith v. City of East Point, 183 Ga. App. 659 (359 SE2d 692) (1987); Justice Smith in City of East Point v. Smith, 258 Ga. 111, 114 (365 SE2d 432) (1988); and Judge Ward in Murphy v. McClendon, (Civil Action No. 1:86 cv-364-HTW, decided April 8, 1988). (Justice Smith’s comparison of automobile drivers with armed policemen could be extended to suggest that such testing of all taxpayers, students and teachers in public and private schools, as well as all judges and lawyers, who hold no less sensitive positions or places of importance than jockeys in the horse racing industry, could be required under the rationale of the Supreme Court’s majority opinion and would lead to massive and excessive governmental intrusion of the privacy of all citizens.) However, the Supreme Court has ruled on the validity of the testing in this case, and this court, of course, is bound to follow it. “If the line leading from precedent to a particular point has not been marked, we are authorized to use the compass of our own judgment, and establish what we find to be the straight line, but wherever the Supreme Court has set up ‘an established marked line, though crooked,’ we have no power to overrule it.” Minor v. City of Atlanta, 7 Ga. App. 817, 819 (68 SE 314) (1910).

While agreeing with Judge Beasley’s dissenting opinion to the extent of acknowledging that Smith, decided by our court, was a one-judge case and that a judgment-only vote leaves the reason “not known,” and further agreeing generally with the analysis on the State Constitution (see: Beasley, “The Ga. Bill of Rights: Dead or Alive?” 34 Emory L. J. (1985)), I have reservations about how the dissent first states that the personnel board’s action in this case was void, yet, in a seemingly inconsistent advisory opinion proceeds to concur with Divisions 2 through 6 of the majority opinion which followed from the initial ruling that the board had jurisdiction to consider the matter. I concur fully with the majority opinion.

Carley, Judge,

dissenting.

I join Division 1 of the dissent to the extent that it incorporates by reference the special concurring opinion in Smith v. City of East Point, 183 Ga. App. 659, 663 (359 SE2d 692) (1987) concerning the construction and viability of the 1977 Ordinance vis-a-vis the 1979 Legislative Charter Amendment. I do not concur with the remainder of Division 1 of the dissent. However, I do concur and join Division 2 of the dissent.

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

Beasley, Judge,

dissenting.

1. I respectfully dissent with respect to Division 1, for the reasons set out in the special concurrence when the case was initially before us. Smith v. City of East Point, 183 Ga. App. 659, 663 (359 SE2d 692) (1987).

This may seem anomalous, in view of the Supreme Court’s ruling on the issue of the constitutionality of the mandatory urinalysis in connection with employment retention. However, the Court apparently merely assumed, for the purpose of addressing the substance of the opinion writer’s view, that the personnel board was properly constituted. In any event, its decision on the constitutional issue does not foreclose the question of the composition of the administrative body which affirmed the termination of employment based on the urinalysis. But it does mean that, if the body had no jurisdiction in the first place, its affirmance of termination was void for a different reason than originally addressed.

Two points should be noted. The initial opinion rendered in this court was that of one judge and not that of the court. One member of the panel concurred in the judgment only, so the reason for that judge’s vote for reversal is not known. The third member concurred on an entirely different basis, as set out in the special concurrence. This must be understood when considering what the Supreme Court described as “the Court of Appeals’ holding” and its statements concerning the Court of Appeals’ views. The opinion rendered has physical precedence only, Rule 35 (b), and because of its particular nature does not express the views of even a majority of the panel.

Decided November 18, 1988 —

Rehearing denied December 5, 1988

Scott Walters, Jr., for appellant.

James A. Eidson, James W. Kytle, for appellees.

The second point relates to the Supreme Court’s statement in footnote 3 that, “as noted by the Court of Appeals, Smith’s failure to pursue a fourth amendment claim is insignificant as a practical matter.” The omission is not insignificant at all. Quite to the contrary, the result is that Smith cannot carry his case to the United States Supreme Court and seek a national-standard ruling that his federal constitutional right was violated even if the state constitution was adhered to. Cf. Michigan v. Long, 463 U. S. 1032, 1037 (103 SC 3469, 77 LE2d 1201) (1983); New York v. Class, 475 U. S. 106, 109 (106 SC 960, 89 LE2d 81) (1986). See concurring opinion of Justice Stephens in Massachusetts v. Upton, 466 U. S. 727, 735 (104 SC 2085, 80 LE2d 721) (1984).

Pursuit of rights claimed separately under both constitutions is the only way in which to assure vindication of “constitutional rights” in our federal system. Of course, if relief is granted pursuant to the state constitution, the complaining party need go no farther than our own Supreme Court, so for that reason the state constitutional claim should always be addressed and decided first. Otherwise, as demonstrated by the history of an Oregon case, the United States Supreme Court unnecessarily must decide the federal issue: State v. Kennedy, 49 Or. App. 415 (619 P2d 948) (1980), rev’d and remanded sub nom. Oregon v. Kennedy, 456 U. S. 667 (102 SC 2083, 72 LE2d 416) (1982), aff’d sub nom. State v. Kennedy, 61 Or. App. 469 (657 P2d 717), aff’d 295 Or. 260 (666 P2d 1316) (1983). Justice Linde explains this in the final opinion in the wayward travels of this case.

2. To the extent that the remaining enumerations involve questions of law which would arise again in a hearing under a properly constituted board, I concur in Divisions 2-6.

         Judge Beasley concurred specially when this case was considered previously. She reasoned that Smith’s jurisdictional challenge was meritorious and that, therefore, the urinalysis issue could not be reached. Smith v. City of East Point, 183 Ga. App. 659, 663, supra.


author: Birdsong, Chief Judge. Deen, Presiding Judge, Beasley, Judge,

text:
    76518.
    FAGAN v. ATNALTA, INC.
    (376 SE2d 204)
   Birdsong, Chief Judge.

Mitchell J. Fagan brought this tort action for injuries received while a patron at Atnalta’s establishment, The Beer Mug, and appeals the grant of appellee’s motion for summary judgment. On the evening of February 26, 1985, Fagan was one of a few customers in The Beer Mug, where he was dating the waitress. The bar was staffed by a female bartender, a female waitress, and a cook. Four customers were playing pool in an area adjacent to, but separate from, an area where Fagan was having a drink. An altercation occurred in the pool room area and the female bartender and waitress attempted to get those involved to leave via the back door. While both sides were still talking at the door, Fagan and another customer by the name of “Bob” gratuitously moved to a place behind the two women. The waitress went to call the police while the bartender tried to escort the belligerent customers outside. One of the men being forced to leave grabbed the bartender by the collar. Fagan grabbed the bartender from the rear to keep her from being pulled outside the bar. The men being forced to leave then turned their attention to the interloper and pulled him outside and administered a severe beating, even though “Bob” tried to assist him. The bartender was emphatic that she did not ask Fagan or Bob to assist her. She was asked if she was glad he was there and responded: “Not really ‘cause if he hadn’t have been there he wouldn’t have gotten beat up so bad.”

Appellant contends the defendant was negligent in failing to provide for the safety, security, and welfare of its patrons in the absence of security personnel or even a male employee, and that a history of assault incidents and violent patrons at the bar were evidence of a lack of care owed under OCGA § 51-3-1. Appellee argues that appellant had equal knowledge of the prior assaults and by voluntarily acting in view of his knowledge he assumed the risk incident to the known condition. Appellant knew The Beer Mug was staffed by the two women. He was aware of the prior incidents involving assaults and had been told of other assaults.

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, either for or against the complainant (Simmons v. Classic City Beverages, 136 Ga. App. 150 (2) (220 SE2d 734)), “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. Union Carbide Corp. v. Holton, 136 Ga. App. 726, 729 (222 SE2d 105); accord Myers v. Boleman, 151 Ga. App. 506, 508 (260 SE2d 359). The elements of assumption of risk are: (1) a hazard or danger which is inconsistent with the safety of the invitee, (2) the invitee must know and appreciate the danger, and (3) there must be an acquiescence or willingness on the part of the invitees to proceed in spite of the danger. Roberts v. King, 102 Ga. App. 518, 521 (116 SE2d 885); accord Abee v. Stone Mountain Mem. Assn., 169 Ga. App. 167, 169 (312 SE2d 142), aff’d 252 Ga. 465 (314 SE2d 444); Kitchens v. Winter Co. Bldrs., 161 Ga. App. 701, 703 (289 SE2d 807).

Appellant was asked: “Q. . . . when you approached that group you knew, as you’ve already stated, that if a fight-developed you and Bob would be in big trouble, as you’re [sic] phrased it? A. Uh-huh (affirmative). Q. Is that yes? A. Yes. Q. And by big trouble you meant that you felt that you and Bob could be hurt if such a fight took place; is that fair to say? A. Yes.” From appellant’s own testimony, only one conclusion is permissible. He saw the situation, recognized the danger to himself, and voluntarily and deliberately thrust himself into the melee, without being asked.

“ ‘The business invitee on private premises assumes the risk of danger of which he knows about and fully comprehends, or which is sufficiently obvious. [Cit.]’ ‘That which a plaintiff may not do without barring himself from recovery is to accept a risk so obvious that taking it amounts to failure to exercise ordinary care for his own safety, [cit.], or recklessly to test an observed and clearly obvious peril, [cit.]’ [Cit.] ‘ “A person cannot undertake to do an obviously dangerous thing . . . without himself being guilty of such lack of due care for his own safety as to bar him from recovery if he is injured. . . .” ’ ” Holbrook v. Prescott, 166 Ga. App. 588, 589 (305 SE2d 156); accord Roberts v. Bradley, 114 Ga. App. 262, 263 (150 SE2d 720); Kreiss v. Allatoona Landing, 108 Ga. App. 427, 437 (133 SE2d 602). Here, the appellant had a clear choice of alternative actions, stay out of the business of the management in expelling disorderly customers or voluntarily assist two female employees attempting to remove four rowdy male patrons from the premises. The appellant deliberately entered into a volatile confrontation between management and patrons. He saw the entire situation in front of him. He had the opportunity to measure the risk and testified that he was aware he would be in “big trouble” if a fight evolved from the confrontation. “ ‘ “In the absence of anything to the contrary, every adult is presumed to possess such ordinary intelligence, judgment, and discretion as will enable him to appreciate obvious danger.” ’ ” Union Carbide, supra at 731. Hence, an adult of ordinary intelligence will be held to be aware of manifest risk or danger of possible injury when he deliberately and voluntarily joins in an affray, as a matter of law. Id.; see also Abee v. Stone Mountain Mem. Assn., 252 Ga. 465, 466, supra; Lundy v. Stuhr, 185 Ga. App. 72, 75 (363 SE2d 343); Simmons, supra at 155; Christian v. Vargas, 116 Ga. App. 359, 362 (157 SE2d 308); Roberts, supra.

Accordingly, only one conclusion is permissible, that is, appellant saw and recognized the risk, and deliberately interjected himself into the affray after the bartender was grabbed by a customer being ejected. Appellant obviously assumed the risk of injury by voluntarily confronting four rowdy customers being ejected from a bar by management.

We find the evidence clear and palpable that the appellant assumed the risk and the trial court did not err in granting summary judgment to appellee.

Judgment affirmed.

Banke, P. J., Carley, Sognier, Pope, and Benham, JJ., concur. Deen, P. J., McMurray, P. J., and Beasley, J., dissent.

Deen, Presiding Judge,

dissenting.

“In the days of chivalry and knighthood, men of courage would joust for the love of a woman. Damsels in distress would be rescued by fearless knights. It was not only a duty, but an honor to give one’s life for one in imminent danger.

“The times have changed, like all things, and civilization bellows that chivalry is lost and gone, of another era. The final imprimatur that chivalry is lost in civilization is the courts of our society interpreting the laws to approve of cowardice and strike down the actions of a gallant knight in modern times, for almost having lost his life, in the aid of a damsel in distress.”

So begins the appellant’s ardent and articulate impassioned brief in support of his motion for rehearing. While the appellant’s nostalgic attitude appears to abandon the ancient adage that “virtue is its own reward” in favor of a suit for damages by a patron against “The Beer Mug,” it nevertheless provokes reconsideration of our original decision in the appeal. Upon reconsideration, I am persuaded that the doctrine of rescue, as stated in Lorie v. Standard Oil Co., 186 Ga. App. 753, 755 (368 SE2d 765) (1988), and Flowers v. Slash Pine &c. Corp., 122 Ga. App. 254, 258 (176 SE2d 542) (1970), is applicable in this case and contraindicates summary judgment for the appellee. Compare this occurrence with Ginn v. Renaldo, Inc., 183 Ga. App. 618, 620 (359 SE2d 390) (1987), where a patron, initially an invitee, subsequently became a trespasser, sustained injuries when someone slammed a door on his hand, and brought suit against the nightclub.

Beasley, Judge,

dissenting.

I respectfully dissent.

1. The majority has decided this case upon an issue not within the contemplation of the parties or the trial court, which in any case should not have been decided as a matter of law and the issues upon which a determination was made below were properly for a jury.

Plaintiff claimed that defendant was negligent in failing to provide for the safety, security and welfare of its patrons in that the absence of security personnel or even a male employee, in soliciting violent patrons, and a history of assault incidents evidenced lack of care owed under OCGA § 51-3-1. During crowded times, normally on weekends, a uniformed policeman was present at closing and there were two bartenders, at least one being male, plus two or three waitresses. There were no fulltime security personnel.

Defendant urged that the record shows plaintiff had equal knowledge of the prior assaults. Therefore, it reasons, he cannot recover for injuries received when he went to the bar, even if defendant was negligent (which it denies). The trial court agreed and, in granting summary judgment, concluded as a matter of law that plaintiff’s knowledge of the dangerous condition was at least equal to that of defendant so that by voluntarily going to the bar he is foreclosed from recovery.

Defendant did not argue, nor did the court rule, that there was “equal knowledge” insofar as the danger of becoming involved in the particular incident is concerned, or that in attempting to assist the bartender the patron assumed the risk of injury. The sole focus of defendant’s position and the trial court’s ruling is that plaintiff was equally aware of the conditions under which the bar operated and the risks created by them but assumed these risks by visiting the bar that night.

While at trial the burden of proof as to each element of negligence would be upon plaintiff, on motion for summary judgment the burden was upon defendant as movant to negate at least one of the essential elements. Tolbert v. Tanner, 180 Ga. App. 441, 444 (2b) (349 SE2d 463) (1986). “ ‘Summary judgment should be granted only in those cases where . . . undisputable, plain and palpable facts exist on which reasonable minds could not differ as to the conclusion to be reached.’ ” Indian Trail Village v. Smith, 139 Ga. App. 691, 693 (2) (229 SE2d 508) (1976). The evidence should be construed most favorably towards the party opposing the motion for summary judgment, who must be given the benefit of all reasonable doubts and favorable inferences. Eiberger v. West, 247 Ga. 767 (281 SE2d 148) (1981). Where there are issues of negligence, assumption of the risk, contributory negligence and comparative negligence, “it is necessary that such issues be resolved by a jury rather than by summary adjudication.” Ga. Power Co. v. Knighton, 169 Ga. App. 416, 417 (312 SE2d 872) (1984). Malvarez v. Ga. Power Co., 166 Ga. App. 498, 499 (2) (304 SE2d 542) (1983).

The majority takes that version of the proof most favorable to the movant. But a question is presented as to whether Fagan assumed the risk by the act of walking, slowly and quietly, across the floor to the door of the establishment, standing there while the disturbance was taking place, remonstrating the rowdy customers to listen to the bartender who was trying to get them to leave and then merely interposing his arm around the bartender when she was grabbed.

The majority appears to hold that when one individual attempts to aid another, even in the most circumspect manner, assumption of the risk occurs as a matter of law. To the contrary, one acting to save another “will not be barred on the ground that he did not exercise ordinary care for his own safety or even that he assumed the risk of injury to himself unless his actions are so imprudent and beyond what a person in the same circumstances might be expected to do that they must be classified as reckless or wanton.” Lorie v. Standard Oil Co., 186 Ga. App. 753, 755 (368 SE2d 765) (1988). Stevens v. Baggett, 154 Ga. App. 317, 318 (1) (268 SE2d 370) (1980). “[T]he doctrine of rescue necessarily contemplates an assumption of the risk inherent in the peril created by the defendant’s negligence and allows recovery for injuries thereby incurred, for the reason that the defendants were charged with the duty of anticipating that their negligence might attract rescuers who would necessarily have to assume the dangers inherent in the situation.” Flowers v. Slash Pine &c. Corp., 122 Ga. App. 254, 258 (4) (176 SE2d 542) (1970). Walker Hauling Co. v. Johnson, 110 Ga. App. 620, 624 (139 SE2d 496) (1964); Blanchard v. Reliable Transfer Co., 71 Ga. App. 843, 845 (1) (32 SE2d 420) (1944).

This question should be determined by a jury after a trial where the facts are fully developed and the issues clearly drawn. Yet it is being precluded by an appellate decision on an issue neither raised, expressly or impliedly, by defendant nor considered by the trial court in making its ruling.

2. On the issues actually presented to this court, the grant of summary judgment should be reversed.

a. The basis for liability of the owner of property on which an invitee is injured is the superior knowledge by the owner of the existence of a condition which may subject the invitee to an unreasonable risk of harm. Burdine v. Linquist, 177 Ga. App. 545, 546 (340 SE2d 198) (1986); McCoy v. Gay, 165 Ga. App. 590, 591 (302 SE2d 130) (1983). Conversely, by acting with the same knowledge, plaintiff invitee assumes the risk and dangers incident to the known condition. Pound v. Augusta Nat., 158 Ga. App. 166, 168 (279 SE2d 342) (1981).

Fagan was aware of some prior incidents at the Beer Mug, but there is no indication that he knew that they were numerous, nor did he know their extent or ferocity. On the other hand, police reports of calls to the premises and an affidavit of a former bartender of the Beer Mug substantiated that defendant had notice of the dangerous condition persisting. Whether plaintiff had equal knowledge of the danger of patronizing the bar that night is a jury question, because it is not shown as a matter of law that he was “as aware of the danger as was the proprietor,” Clark v. Carla Gay Dress Co., 178 Ga. App. 157, 159 (342 SE2d 468) (1986), or that he had “as much knowledge as” the proprietor did, Telligman v. Monumental Properties, 161 Ga. App. 13, 14 (288 SE2d 846) (1982), when he chose to go to the premises.

Even if he had equal knowledge in the legal sense, the question remains whether plaintiff exercised ordinary care in going to the bar anyway. “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.” OCGA § 51-11-7. It is up to a jury to determine whether ordinary care would require not going to the bar. Powell v. Barker, 96 Ga. App. 592, 600 (3b) (101 SE2d 113) (1957). Thus the court erred in concluding as a matter of law that plaintiff assumed the risk and therefore was barred from recovery.

b. The final question is whether the evidence shows that defendant/movant has negated at least one of the essential elements of plaintiff’s claim. Tolbert v. Tanner, supra. Defendant contends that there is no evidence of a dangerous condition of which it had knowledge.

This must be considered in the context of its legal duty. OCGA § 51-3-1 provides that the owner or occupier of land is liable to invitees for injuries caused by the owner’s failure to exercise ordinary care in keeping the premises and approaches safe. In order to recover for a dangerous condition created by third persons, plaintiff must prove defendant knew, or should have known, of the condition. Veterans Organization v. Potter, 111 Ga. App. 201, 205 (2) (141 SE2d 230) (1965); Holiday Inns v. Newton, 157 Ga. App. 436, 437 (278 SE2d 85) (1981).

Ordinarily, an independent criminal act is treated as the proximate cause and insulates any negligence of the defendant. Warner v. Arnold, 133 Ga. App. 174, 176 (2) (210 SE2d 350) (1974), and cases cited therein. But where intervening criminal acts of third persons are foreseeable, that is, when defendant had reason to anticipate the criminal act, tort liability arises. Bradley Center v. Wessner, 250 Ga. 199, 202 (296 SE2d 693) (1982); Atlantic C. L. R. Co. v. Godard, 211 Ga. 373, 377 (1) (86 SE2d 311) (1955).

Because knowledge of danger by the occupier of the premises is a prerequisite to recovery, plaintiff must show notice by a substantially similar incident of which the occupier was aware. Donaldson v. Olympic Health Spa, 175 Ga. App. 258, 260 (2) (333 SE2d 98) (1985) [physical precedent]. It need only be “sufficient to attract the owner’s attention to the dangerous condition which resulted in” the incident on trial. Pembrook Mgt. v. Cossaboon, 157 Ga. App. 675, 677 (3) (278 SE2d 100) (1981); Bayshore Co. v. Pruitt, 175 Ga. App. 679 (1) (334 SE2d 213) (1985).

Defendant insisted that the police reports do not involve substantially similar incidents and that the bartender was merely giving his opinion that the bar was a dangerous place and failed to furnish sufficient details of the alleged altercations. The affidavit alone shows that defendant did not carry its burden of proving as a matter of law there was no “defect” or knowledge of it.

The bartender’s affidavit recited: that he was 6’4” tall and weighed between 240 and 250 pounds; that he witnessed over twenty altercations at the Beer Mug during his two-year employment; that on two separate occasions he was knocked or thrown to the ground, once he had ash trays and bar stools thrown at him necessitating medical treatment, and another time he had to pull a gun to get individuals out of the bar; that the management would not allow female employees to remain without a male accompanying them; that he barred some particularly rough troublemakers but was told by management that he was running off too many customers and they should be allowed back.

The next point is that it is not necessary that defendant should have anticipated the particular consequences which ensued as a result of plaintiff’s patronizing the bar under the conditions it presented. “It is sufficient, if in ordinary prudence [it] might have foreseen that some injury would result from [its] act or omission, or that consequences of a generally injurious nature might result.” Williams v. Grier, 196 Ga. 327, 337 (2) (26 SE2d 698) (1943). Milton Bradley Co. v. Cooper, 79 Ga. App. 302, 307 (53 SE2d 761) (1949).

There is evidence that defendant had reasonable grounds for apprehending that criminal assaults would be committed. McClendon v. C & S Nat. Bank, 155 Ga. App. 755, 756 (272 SE2d 592) (1980). “When the conduct of persons on the premises is such that the proprietor from known facts or circumstances should reasonably apprehend danger to other customers, it is his duty to interfere to prevent injury, and the failure to interfere when the proprietor has an opportunity to foresee and prevent injury may constitute negligence. [Cits.]” Shockley v. Zayre of Atlanta, 118 Ga. App. 672, 673-674 (165 SE2d 179) (1968). “The question of reasonable foreseeability and the statutory duty imposed by [OCGA § 51-3-1], to exercise ordinary care to protect the plaintiff in the circumstances ... is for a jury’s determination rather than summary adjudication.” Lay v. Munford, 235 Ga. 340, 341 (219 SE2d 416) (1975).

The evidence thus far presented in the case, viewed in a light most favorable to plaintiff, does not demand a finding that defendant could not reasonably foresee the attack that occurred or that with such foresight it exercised the care required by OCGA § 51-3-1.

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

Decided November 3, 1988 —

Rehearing denied December 5, 1988

Davidson & Associates, William M. Davidson, Thomas P. Lenzer, for appellant.

Thomas E. Magill, for appellee.


author: Benham, Judge.

text:
    76544.
    KEYWAY CONTRACTORS, INC. v. LEEK CORPORATION, INC. et al.
    (376 SE2d 212)
   Benham, Judge.

Appellee The Leek Corporation was a subcontractor on a government building project. Leek subcontracted a portion of its work to appellant Keyway Contractors by means of a written subcontract executed in late 1981. A dispute arose concerning the method of payment from Leek to Keyway, and Keyway stopped working and left the job site in late 1982. Leek filed an action against Keyway seeking to recover the damage it allegedly suffered due to Keyway’s departure. Keyway answered and counterclaimed for the value of its services and for damages it allegedly sustained due to Leek’s alleged repudiation of the subcontract. Keyway added as a defendant in counterclaim appellee United States Fidelity & Guaranty Company (USF&G), the surety on Leek’s payment bond to the general contractor, and sought payment of its claims therefrom. The trial court directed verdicts on liability in favor of appellees on Leek’s main claim and Keyway’s counterclaim, and the jury established Leek’s damages as $65,640 plus interest. After the trial court entered a judgment in favor of Leek for $65,640 principal, $21,740.20 interest, costs, and post-judgment interest at 12 percent, and denied appellant’s motion for new trial, this appeal was filed. Appellant contends the trial court erred in granting directed verdicts in favor of appellees, and in denying appellant’s motion for directed verdict on Leek’s main claim.

Appellant’s contract with Leek contains the following pertinent provisions:

“Section 5 . . . Unless otherwise herein specified, payments to be made as follows: Monthly payments equal to 90 percent of the value of all work completed as of the established payment estimate period . . . less the aggregate of all previous payments, with final payment and retainage becoming due upon completion of all work, acceptance thereof and payment therefor by Owner.”
“17 . . . (e) if [Keyway] fails or refuses to proceed with [its] work . . . , [Leek] may upon three (3) days’ written notice to [Key-way], . . . prosecute the work to completion. . . . [A] 11 monies expended therefor shall be deducted from the contract price herein stated, and if such expenditures exceed the amount otherwise due to [Keyway] hereunder [Keyway] agrees to pay to [Leek] on demand the full amount of such excess, together with interest. . . .”
“28 . . . (b) If at any time any controversy should arise between [the parties] with respect to any matter or thing involved in this Subcontract . . . , then the decision of [Leek] shall be followed by [Key-way], and said controversy shall be decided as follows:
“(i) [Keyway] shall conclusively be bound by and abide by [Leek’s] decision, unless [Keyway] shall commence arbitration proceedings as hereinafter provided.
“(ii) If [Keyway] decides to appeal from the decision of [Leek], then the controversy shall be decided by arbitration and the arbitration decision shall be final and binding on both parties to resolve the controversy; provided, however, that arbitration proceedings shall be commenced by [Keyway] not later than 30 days following receipt of notice of [Leek’s] decision.
“(iii) No dispute or controversy shall interfere with the progress of construction, and [Keyway] shall proceed with its work without interruption, deficiency, or delay.”
“40. If any provision of this Subcontract is construed so as to be void, all other provisions remain in full force and effect.”

1. In its suit, Leek sought from Keyway the damages, as provided in Section 17 (e) of the contract, it had incurred as a result of Key-way’s failure to complete the work it had contracted to do. Keyway maintains that the monthly amounts Leek paid to it were not figured pursuant to the formula contained in Section 5 of the contract, and that Leek’s conduct constituted a material breach of the contract, prohibiting a directed verdict in favor of Leek on the main claim. Keyway asserts that the same alleged breach by Leek constituted a repudiation of the contract, which released Keyway from any further contractual obligations and entitled Keyway, not Leek and USF&G, to a directed verdict on Keyway’s counterclaim.

We are in agreement with the trial court’s succinct assessment of the situation when presented with the motions for directed verdict at the close of the evidence: “The ground [on which] Keyway [is basing its claim] that Leek breached the contract was simply a question of non-payment, which is another way of saying dispute over payment. Disputes over payment were contemplated in the contract. It was made a term of the contract. How they were to be resolved became a term of the contract. It was specifically addressed within the contract in order to guarantee that the contract be completed and continue to be in spite of disputes dealing with payment . . . The allegation of nonpayment is the breach that Keyway relies upon. I find that the provision dealing with disputes is in fact a material condition of the contract. I find that Keyway breached that condition. . . .”

Decided November 9, 1988 —

Rehearing denied December 5, 1988

Webb & Daniel, Paul Webb, Jr., for appellant.

J. Alexander Porter, James G. Killough, for appellee.

As the trial court stated, the parties agreed in their contract to resolve disputes by means of arbitration. The parties also agreed to proceed with their work despite any disputes. Under the terms of the contract, Keyway should have placed the payment dispute in arbitration and continued working pending the resolution of the dispute. Keyway, instead, voiced its displeasure with Leek’s method of payment by walking off the job, in direct and material violation of the contract. Keyway’s claim that Leek breached the contract and that Leek’s breach preceded that of Keyway cannot stand in the face of the method of dispute resolution contained in the contract. Since only Keyway could invoke arbitration and did not, the question whether Leek’s method of payment was in violation of the contract remained unresolved. There was, however, no question but that Keyway had materially breached the contract by abandoning the unfinished project.

2. Keyway argues that the contract’s arbitration clause is unenforceable for a number of reasons and therefore cannot defeat Key-way’s right to pursue its defense of Leek’s claim or its counterclaim. The contract’s severability clause (paragraph 40, supra), coupled with its “continuing performance” clause (paragraph 28 (b) (iii)), renders moot the question of the enforceability of the arbitration clause. Even if the arbitration clause were construed to be void, the contract provides that “all other provisions remain in full force and effect.” Thus, still in effect was the provision that “[no] dispute or controversy shall interfere with the progress of construction, and [Keyway] shall proceed with its work without interruption, deficiency, or delay.” By abandoning the unfinished project, Keyway materially breached the contract, and Leek was entitled to recover the damages it incurred due to Keyway’s breach. The trial court did not err in directing verdicts on liability in favor of appellees and in denying Keyway’s motion therefor.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


text:
    76680.
    EFSTATHIOU et al. v. SAUNDERS et al.
    (376 SE2d 413)
   Benham, Judge.

Landowner/appellee Saunders applied to the district processioners to trace and mark the western boundary of his property. See OCGA § 44-4-2. Adjoining landowners, appellants Efstathiou, dissatisfied with the line run and marked by the processioners and county surveyor, filed a protest, and a jury trial was had. See OCGA § 44-4-9. This appeal is from the judgment entered on the jury verdict in favor of Saunders.

1. Appellants contend the trial court erred in denying their motions for new trial and for judgment notwithstanding the verdict. “The standard for granting a directed verdict or a judgment notwithstanding the verdict is the same. Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be granted. [Cit.] ... A judgment notwithstanding the verdict is improperly granted in the face of conflicting evidence, and an appellate court must view the evidence in the light most favorable to the party who secured the jury verdict.” Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554) (1983). In the case at bar, the processioners testified about the natural landmarks (hedgerows of older trees, rock piles, a drainage ditch, and the land’s elevation) that caused them to trace the disputed Saunders-Efstathiou boundary line in accordance with those natural landmarks. Appellants’ claim to the disputed property is based upon the property description contained in their deed. However, natural landmarks are “the most conclusive evidence” of a disputed line, while courses and distances are resorted to in the absence of higher evidence. OCGA § 44-4-5. Inasmuch as there was conflicting evidence, a verdict in favor of appellants was not demanded, and it was not error to deny appellants’ motion for j.n.o.v. Id. Because there was evidence to support the jury’s verdict, the trial court did not err in denying appellants’ motion for new trial. OCGA §§ 5-5-20 and 5-5-21.

2. In its instruction to the jury concerning the form of the verdict, the trial court, in essence, told the jury to either find in favor of the processioners’ return or, if that line had not been satisfactorily proven, to find the appropriate boundary. Appellants argue that the trial court erred in requiring the jury to find a line. Appellants contend that the jury should have been permitted to return a verdict reflecting only their conclusion that the processioners’ return was erroneous.

The statute provides that a dissatisfied adjoining landowner may file a protest specifying “the lines objected to and the true lines as claimed by him. . . . The verdict of the jury and the judgment of the superior court shall be framed to meet the issue tried and decided. . . .” OCGA § 44-4-9. “[T]he issue on the trial of a protest to the processioners’ return is not necessarily confined to the question of whether the line as marked by them should be sustained, but it is permissible for the protestant to obtain a verdict setting up the line as declared in his protest, if the evidence shall so warrant. [Cits.]” Earney v. Owen, 213 Ga. 412, 415 (99 SE2d 201) (1957). If there is no evidence to warrant a finding of a line other than that traced by the processioners, the jury should be instructed to find only that the processioners’ return was in error. Where, as here, however, there is evidence to support a line distinct from that in the processioners’ return, it is not error to refuse to limit the jury’s deliberations to the issue of the validity of the processioners’ return. Id.

3. While the jury was deliberating, appellees withdrew the abusive litigation counterclaim they had filed. However, appellants had filed an abusive litigation amendment to their complaint in response to appellees’ assertion of such a claim. When appellees withdrew their Yost claim (Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986)), the trial court ruled that appellants would not be entitled to Yost damages unless they prevailed on the merits of the underlying action. Upon return of the jury verdict in favor of appellees, the trial court dismissed appellants’ claim for abusive litigation damages. Appellants claim error in the dismissal.

Appellants’ Yost claim was involuntarily dismissed because appellants had not prevailed in the underlying action. While a favorable disposition in the previous litigation was a necessary element of the common-law tort of malicious use of process (Baldwin v. Davis, 188 Ga. 587 (1b) (4 SE2d 458) (1939)), the tort of abusive litigation contains no such prerequisite. See Yost, Division 13. The perception of such a requirement has sprung from dicta of this court in Rothstein v. L. F. Still & Co., 181 Ga. App. 113, 116 (351 SE2d 513) (1986). See Memorial Med. Center v. Moore, 184 Ga. App. 176 (361 SE2d 49) (1987). Cf. Harvey v. Moore, 186 Ga. App. 876 (368 SE2d 784) (1988), rev’d sub nom, Moore v. Memorial Med. Center, 258 Ga. 696 (373 SE2d 204) (1988). In actuality, a favorable disposition is not always necessary in order to pursue a Yost claim. A party may assert a Yost claim if, among other things, another party “unnecessarily expands the proceedings by . . . improper conduct. . . .” Yost, Division 13. If a Yost claim is based upon the opposing party’s act of filing a certain claim, defense, or other position, and a factfinder finds in favor of the opposing party on that claim, defense, or other position, the verdict is prima facie evidence that the winning party’s claim, defense, or other position did not lack substantial justification, thereby vitiating the Yost claimant’s Yost case. See, e.g., West v. Veterans Admin., 182 Ga. App. 767 (3) (357 SE2d 121) (1987); Smith v. Pierce, 179 Ga. App. 724 (4) (347 SE2d 692) (1986). If, however, a Yost claim is based on conduct other than filing a claim, defense, or other position, or is based upon an asserted claim, defense, or other position, the merits of which a factfinder does not reach (see, e.g., Harvey v. Moore, supra), a verdict in favor of the Yost defendant on the main claim does not necessarily preclude the continuation of the Yost claim. In the case at bar, appellants maintained that appellees’ act of filing the Yost counterclaim “unnecessarily expand[ed] the proceedings . . . and lack[ed] substantial justification.” The jury’s determination that the processioners’ return accurately reflected the Efstathiou/Saunders boundary line did not resolve the issue whether appellees’ assertion of a Yost counterclaim was a Yost violation. Since the basis of appellants’ Yost allegation was not put to rest by the jury’s verdict, it was error to dismiss appellants’ Yost claim due to lack of a favorable disposition of the main claim.

Decided November 21, 1988 —

Rehearing denied December 5, 1988

Franklin E. Remick, for appellants.

The Supreme Court’s holding in Yost requires disposition of the Yost claim by the same factfinder who decided the underlying action. Yost, Division 15. Since the jury which reached a verdict in the underlying action in the case at bar has been dismissed, the Yost “same factfinder” mandate would compel us to reverse the untainted judgment in the underlying action (the processioning) in order that the same factfinder would hear both claims. However, it appears that the Supreme Court has modified its position and will now permit pursuit of a Yost claim independent of the underlying action. In Moore v. Memorial Med. Center, supra, the Supreme Court stated that a Yost claimant, upon voluntary dismissal without prejudice of the underlying action, may proceed to adjudication of the merits of the Yost claim, or wait and pursue the abusive litigation claim when the plaintiff refiles the underlying action or the time therefor elapses. By giving the Moore Yost claimant this variety of channels through which it may pursue its cause of action, some of which require the existence of one factfinder determining the underlying cause of action and another factfinder determining the abusive litigation claim, the Supreme Court has implicitly withdrawn the requirement that the same factfinder hear both claims. Based upon the Supreme Court’s holding in Moore, supra, we therefore affirm the judgment in the main claim and reverse the trial court’s dismissal of appellants’ Yost claim.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Pope, J., concur.

J. Byrd Garland, for appellees.


author: Sognier, Judge.

text:
    76714, 76715.
    GOWEN v. CADY et al. (two cases). CADY et al. v. CRYOMEDICS, INC.
    76716.
    (376 SE2d 390)
   Sognier, Judge.

Wanda Cady brought suit against James F. Gowen, M.D., Cryomedics, Inc. f/k/a Colmed, Ltd., and numerous others seeking damages stemming from her pregnancy after undergoing a voluntary sterilization procedure performed by Gowen using Bleier clips manufactured by Cryomedics. Her husband, Thomas Cady, joined her suit seeking damages for loss of consortium. In their complaint, the Cadys asserted in Count I a claim for medical malpractice against Gowen in the performance of the operation and in Count II a claim of battery for unauthorized operation in that Gowen allegedly disregarded Mrs. Cady’s requested method of sterilization and instead utilized the Bleier clips. The trial court denied Gowen’s motion for summary judgment as to the Count II battery claim and we granted his application for interlocutory appeal in Case No. 76714. The trial court granted Gowen’s motion for summary judgment as to the Count I medical malpractice claim and the Cadys appeal therefrom in Case No. 76715. The Cadys also appeal in Case No. 76716 from the trial court’s grant of summary judgment in favor of Cryomedics on their claim alleging breach of warranty.

1. In Case No. 76715, the trial court properly granted summary judgment to Gowen on Mrs. Cady’s medical malpractice claim. Gowen submitted his affidavit as an expert affirming that all the treatment he rendered Mrs. Cady was performed with the skill and care required of physicians and surgeons generally under the same or similar circumstances and that at all times relevant to the care and treatment of Mrs. Cady he exercised that degree of skill and care required of physicians and surgeons generally, under the same or similar circumstances. Mrs. Cady “did not produce an affidavit or counter affidavit proving negligence as required to prevail against an affidavit of the defendant on summary judgment. [Cits.]” Nelson v. Parrott, 175 Ga. App. 307 (1) (333 SE2d 101) (1985). Nothing in Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200 (345 SE2d 904) (1986), cited by Mrs. Cady, required Gowen to elaborate further in his affidavit or mandates that we reverse the trial court’s order on appeal.

2. The threshold issue to the Cadys’ remaining claims against Gowen is whether they are barred by OCGA § 31-20-5 of the Georgia Voluntary Sterilization Act, OCGA § 31-20-1 et seq. As discussed by this court in Dohn v. Lovell, 187 Ga. App. 523 (370 SE2d 789) (1988), the provision of OCGA § 31-20-5 exempting a physician from all civil liability and criminal prosecution in a voluntary sterilization situation, except for negligence in the performance of the sterilization procedure itself, applies only “[w]hen an operation shall have been performed in compliance with this chapter.” OCGA § 31-20-5. In Dohn we addressed specifically the language in OCGA § 31-20-2, which provides that the physician must give “a full and reasonable medical explanation ... as to the meaning and consequence of such operation.” As we held in Dohn, this statutory language encompasses a requirement that “ ‘a full and reasonable medical explanation (be) given by [the] physician to [the] person [requesting sterilization] as to the method to be employed in such sterilization operation so that the patient will understand how his or her inability to have children will result.’ ” Id. at 525-526.

In the case sub judice, Mrs. Cady stated in her deposition that when she requested a sterilization procedure be performed on her, she specifically directed that her fallopian tubes be “clipped [as in ‘cut’] and tied.” She stated she did not know anything about Bleier clips at that time, and that Gowen did not tell her how he was going to perform the sterilization but merely responded to her request by saying, “Well, I think five kids is enough.” Gowen does not controvert that Mrs. Cady made this request, nor does he assert that he informed her to the contrary that he would use Bleier clips. The operation was performed on June 24, 1983; Mrs. Cady first learned that “clamps,” i.e., Bleier clips, had been used in the operation in September 1984 subsequent to her discovery of her pregnancy.

“On motion for summary judgment, the evidence, with all reasonable inferences therefrom, must be construed in the light most favorable to the non-moving party: here, Mrs. [Cady]. OCGA § 9-11-56.” Hallford v. Kelley, 184 Ga. App. 90, 92 (360 SE2d 644) (1987). The record reveals that a question of fact exists whether Mrs. Cady’s request that she be sterilized by having her tubes “clipped and tied” was a generic request for sterilization, as Gowen contends, or a request for a specific method of sterilization, as the Cadys assert. Since resolution of this question of fact determines whether Gowen performed the sterilization operation on Mrs. Cady in accordance with OCGA § 31-20-2 so as to be entitled to the exemption in OCGA § 31-20-5, under the authority of Dohn, supra, summary judgment as to this threshold issue was properly denied.

3. In Case No. 76714, Gowen contends the trial court erred by denying his motion for summary judgment on the basis that the Cadys’ claims of battery and loss of consortium are barred by the statute of limitations.

We note initially that the trial court’s order, as does Gowen’s brief, indicates a misapprehension as to which statute of limitations is applicable here. An operation performed without the consent of the patient constitutes a technical battery for which a physician may be held liable. Bailey v. Belinfante, 135 Ga. App. 574, 576 (218 SE2d 289) (1975). The statute of limitations for battery resulting from an unauthorized operation is the two-year statute of limitations for injuries to the person and the four-year statute of limitations for loss of consortium in OCGA § 9-3-33. Breedlove v. Aiken, 85 Ga. App. 719, 720 (70 SE2d 85) (1952). Thus, OCGA § 9-3-71, which governs medical malpractice causes of action, does not apply insofar as the Cadys’ claims are concerned and, accordingly, it is not necessary to address the trial court’s disregard of Gillis v. Palmer, 178 Ga. App. 608 (344 SE2d 446) (1986), since the trial court’s discussion and evaluation of OCGA § 9-3-71 and Shessel v. Stroup, 253 Ga. 56 (316 SE2d 155) (1984) have no applicability to the issue at bar.

Turning to that issue, the record reveals that the sterilization procedure Mrs. Cady underwent was performed June 24, 1983. Suit was filed August 6, 1986. Thus, as to Mr. Cady’s claim for loss of consortium, the record establishes it was timely brought within the four-year limitation period, OCGA § 9-3-33, and so as to Mr. Cady the trial court properly denied Gowen’s motion for summary judgment.

As to Mrs. Cady’s claim of battery, “ ‘[concealment per se amounts to actual fraud where for any reason one party has a right to expect full communication of the facts from another.’ [Cits.] ‘If the defendant, or those under whom he claims, [are guilty] of a fraud by which the plaintiff [has] been debarred or deterred from [bringing an] action, the period of limitation shall run only from the time of the [plaintiff’s] discovery of the fraud.’ [OCGA § 9-3-96.] Where there is, as here, a confidential relationship between physician and patient, and where the physician in performing an authorized operation goes beyond the contract and performs another operation, and where the patient does not know that the physician exceeded the contract, the concealment of the facts constitutes actual fraud and tolls the statute of limitations. [Cit.] The statute does not begin to run until the discovery of the fraud ([cits.]); and the plaintiff has two years after such discovery in which to bring her action. [Cits.]” Breedlove, supra at 720-721.

Mrs. Cady stated in her deposition that she first learned that Bleier clips had been used in the sterilization procedure on September 1, 1984. Although Gowen argues Mrs. Cady learned of her pregnancy in July 1984, that knowledge would only have alerted Mrs. Cady to the failure of the sterilization procedure, not to the unapproved use of Bleier clips by Gowen in the procedure. Thus, even assuming, arguendo, that Mrs. Cady did know she was pregnant in July 1984, the relevant date is not the date she discovered her pregnancy but the date she discovered Gowen had exceeded his authority by attempting to sterilize her by means of an unapproved method. Therefore, because suit was filed within two years of Mrs. Cady’s discovery of the unauthorized operation, the statute of limitations had not yet run, Breedlove, supra, and the trial court properly denied Gowen’s motion for summary judgment on the battery claim.

4. In Case No. 76716, the Cadys appeal from the trial court’s grant of summary judgment in favor of Cryomedics. Although Mrs. Cady’s action against Cryomedics (and Mr. Cady’s claim for loss of consortium deriving from his wife’s injuries) was originally based on theories of negligence, negligence per se, strict liability and breach of warranty, the Cadys acknowledge in their brief before this court that the only viable claim remaining on which the trial court ruled was the breach of warranty claim and it is the only claim now before this court. As to that claim, Mrs. Cady alleged in the complaint that Cryomedics was liable to her as a result of its action in selling, distributing, and introducing into the stream of commerce the Bleier clip, a device which she alleged was “defective and unfit for the purpose intended.” However, the complaint contains the admission, neither amended nor withdrawn, see generally Martin v. Pierce, 140 Ga. App. 897, 898-899 (1) (232 SE2d 170) (1977), that Cryomedics did not sell the Bleier clip to her but rather sold it to the Glynn-Brunswick Memorial Hospital Authority, which in turn sold the clip to Mrs. Cady.

“ ‘Generally, before a recovery may be had for breach of warranty, this state has recognized the necessity of privity between the parties where a plaintiff-purchaser of an article has been injured because of its alleged defectiveness and brings an action based on warranty. That is, if a defendant is not the seller to the plaintiff-purchaser, the plaintiff as the ultimate purchaser cannot recover on the implied or express warranty, if any, arising out of the prior sale by the defendant to the original purchaser, such as distributor or retailer from whom plaintiff purchased the product. [Cits.]’ [Cits.]” Thomaston v. Ft. Wayne Pools, 181 Ga. App. 541, 543 (352 SE2d 794) (1987). The evidence of record is uncontroverted that Cryomedics did not sell the Bleier clip in question to Mrs. Cady. “Nothing contained in OCGA § 11-2-318, which extends the seller’s warranties to family members and guests in the buyer’s home who may reasonably be expected to use the product and who are injured thereby, eliminates the requirement that the buyer and the defendant be in privity.” Id. We therefore find no error in the trial court’s grant of summary judgment in favor of Cryomedics on the Cadys’ claim based on breach of warranty.

Judgments affirmed.

Carley, J., concurs. Deen, P. J., concurs in Divisions 1, 2 and 3 and in the judgment, and concurs dubitante in Division 4.

Decided November 14, 1988 —

Rehearing denied December 5, 1988

Dillard & Landers, Terry A. Dillard, Bryant H. Bower, Jr., for Gowen.

Robert M. McCartney, Charles M. Lamkin, for Cadys.

R. Clay Ratterree, Morton G. Forbes, for Cryomedics.


text:
    76742.
    GOWEN et al. v. CARPENTER et al.
    (376 SE2d 384)
   Sognier, Judge.

We granted the application for interlocutory review filed by Dr. James Gowen, Dr. Carl Dohn, and Coast Associates of Obstetrics & Gynecology, P.C., from the trial court’s denial of their motion for judgment on the pleadings in a suit brought against them by Glenda Sue Carpenter and her husband seeking damages for injuries arising out of the use of Bleier clips in a voluntary sterilization procedure performed on Mrs. Carpenter. Although the motion was denominated as a motion for judgment on the pleadings, the record reveals that matters outside the pleadings were presented to and not excluded by the court. Thus, the motion was converted into one for summary judgment and will be treated as such. OCGA § 9-11-12 (c).

1. Appellants contend the trial court erred by ruling in favor of Mrs. Carpenter on Count III of the complaint alleging battery for unauthorized operation. The facts in this case are virtually indistinguishable from those in Gowen v. Cady, 189 Ga. App. 473 (_SE2d —) (1988) and we find that case controls both appellants’ arguments asserting the absence of genuine issues of fact and the statute of limitations argument adversely to appellants. As in Gowen, supra, Mrs. Carpenter presented evidence in the form of deposition testimony that when she requested a sterilization procedure be performed on her, she specifically directed that her fallopian tubes be “cut and tied.” Mrs. Carpenter did not know anything about Bleier clips at that time, nor was she told a different method from the one she requested would be used in the performance of the sterilization. Appellants do not controvert that Mrs. Carpenter requested her tubes be “cut and tied” nor do they assert that she was informed to the contrary that Bleier clips would be used. Rather, as in Gowen, supra, they argue Mrs. Carpenter’s request was a generic request for sterilization rather than a request for a specific method of sterilization. Under the authority of Dohn v. Lovell, 187 Ga. App. 523 (370 SE2d 789) (1988), it thus appears questions of fact exist whether Mrs. Carpenter was given the “full and reasonable medical explanation” required by OCGA § 31-20-2 so as to entitle appellants to the exemption from all civil and criminal liability set forth in OCGA § 31-30-5, and appellants were not entitled to judgment on their motion. Dohn, supra at 526; Gowen, supra at 474 (2).

As to the statute of limitations argument made by appellants in regard to the battery claim, the record reveals that Mrs. Carpenter’s operation was November 7, 1983; that although Mrs. Carpenter saw the term “Bleier clip” referenced in the bill she received for the operation, she did not know what a Bleier clip was and first learned that Bleier clips had been used as the method of sterilization in December 1984, subsequent to her discovery of her pregnancy; and that suit was filed June 27, 1986. The confusion demonstrated by the trial court and appealing party in Gowen, supra at 475 (3), is once again evidenced by appellants in this case. “An operation performed without the consent of the patient constitutes a technical battery for which a physician may be held liable. [Cit.] The statute of limitations for battery resulting from an unauthorized operation is the two-year statute of limitations for injuries to the person and the four-year statute of limitations for loss of consortium in OCGA § 9-3-33. [Cit.] Thus, OCGA § 9-3-71, which governs medical malpractice causes of action, does not apply insofar as the [appellees’] claims are concerned . . .” Gowen, supra at 475 (3). Mrs. Carpenter’s claim for battery for unauthorized operation and Mr. Carpenter’s claim for loss of consortium as a result of that battery upon his wife having been timely filed, the trial court did not err by denying appellants’ motion.

2. Our reading of the trial court’s order indicates the only aspects of appellees’ complaint addressed therein were those claims based on the battery for unauthorized operation. However, both parties assert that a question of medical malpractice is involved regarding the failure of Dohn, the doctor who performed the actual surgery, to apply a Bleier clip to Mrs. Carpenter’s left fallopian tube due to his reliance on Mrs. Carpenter’s medical history form indicating her left ovary and left fallopian tube had been removed surgically years earlier. Conceding that an issue involving medical malpractice might have been drawn into the case by affidavits and depositions, we turn to that issue. However, we need not address appellants’ arguments that they were entitled to summary judgment because no questions of fact remained as to the merits of the claim since we agree with appellants that they were entitled to summary judgment on the medical malpractice claim as a matter of law on the basis of the statute of limitations.

The applicable statute of limitations is OCGA § 9-3-71 (Ga. L. 1976, p. 1363) and under the controlling authority of Gillis v. Palmer, 178 Ga. App. 608, 609 (1) (344 SE2d 446) (1986), Mrs. Carpenter’s claim against appellants for the alleged wrongful act committed during the surgery in November 1983 is barred since it occurred more than two years before the instant action was filed. Mr. Carpenter’s loss of consortium claim is likewise time barred. Hamby v. Neurological Assoc., 243 Ga. 698 (256 SE2d 378) (1979). Under the facts of this case, Gillis, supra, is dispositive of all of appellees’ arguments insofar as Shessel v. Stroup, 253 Ga. 56 (316 SE2d 155) (1984), is concerned. Further, from a review of the entire record on summary judgment, there is no evidence of any “act of fraud” on the part of appellants to toll the statute of limitations since Mrs. Carpenter does not assert Dohn knew her left fallopian tube had not been removed and she stated in her deposition that after the surgery in November 1983, although she spoke to a doctor associated with appellants about the child she had just borne, she never spoke to Dohn, and did not keep any of the post-surgical appointments made for her by appellants’ office. Thus, the record reveals that there was no statement by appellants intimating fraud, or any opportunity on appellants’ part to conceal the alleged negligence or to “lull” appellees into a sense of complacency in order to create a factual issue as to fraud. See Gillis, supra at 610 (2). Accordingly, the limitation period applicable to appellees’ claim having clearly expired and appellants being entitled to summary judgment as a matter of law, the trial court erred by denying their motion insofar as that issue is concerned. See generally Equitable Bank v. Brown, 177 Ga. App. 776, 777 (341 SE2d 300) (1986); McLean v. Gray, 180 Ga. App. 794 (350 SE2d 815) (1986).

Decided November 10, 1988.

Dillard & Landers, Terry A. Dillard, Bryant H. Bower, Jr., for appellants.

Douglas W. Alexander, M. Elaina Massey, for appellees.

Judgment affirmed in part; reversed in part.

Carley, J., concurs. Deen, P. J., concurs in the judgment only.


text:
    76832.
    ORKIN EXTERMINATING COMPANY, INC. v. DURDEN.
    (376 SE2d 376)
   Benham, Judge.

In 1973, appellant Orkin Exterminating Company and appellee Durden entered into separate contracts whereby appellant agreed to treat appellee’s home for termite and powder-post beetle infestation, and to re-treat should infestation recur while appellant and appellee maintained their contractual relationship. In 1986, appellee filed suit against appellant, alleging negligent inspection, negligent treatment, fraud and deceit, bad faith, and reckless disregard for its actions. After a jury returned a verdict awarding appellee $15,768 for termite damage, $15,000 for powder-post beetle damage, $9,000 attorney fees, and $110,000 punitive damages, the trial court entered a judgment in favor of appellee for $149,768, from which judgment appellant brings this appeal.

1. Appellant first contends the trial court erred in denying appellant’s motions for directed verdict and judgment n.o.v. with regard to the allegations of negligent treatment and inspection. “ ‘As with a directed verdict, a motion for judgment notwithstanding the verdict is proper only where “there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” [Cits.]’ In applying this standard, we must view the evidence in a light most favorable to the party securing the jury’s verdict. [Cit.]” Hiers-Wright Assoc. v. Manufacturers Hanover &c. Corp., 182 Ga. App. 732 (2) (356 SE2d 903) (1987). Mindful of the appropriate standard, we turn to the evidence presented at trial concerning the allegations of negligent treatment and inspection.

Following the initial inspection of appellee’s home in 1973, appellant’s agent made a representative drawing of appellee’s home and marked the areas of visible existing termite and powder-post beetle damage, presently active infestation, and the treatment performed. The chart reflected that powder-post beetle damage was found throughout the understructure of the house, while termite damage was confined to the northern portion of the dwelling. According to the graph, appellant’s agent treated the house by removing cellulose debris, trenching and treating the foundation, and drilling the structure’s brick piers. Appellant’s termite technician completed a checklist in March 1973 showing that trash and debris had been removed; that all work done appeared on the graph; and 'that all wood-ground contact had been insulated or removed. Unmarked on the checklist were the statements that foundations, walls, piers, and supports had been trenched or drilled and treated; that all piers and double brick chain walls had been drilled and treated; and that the work was in compliance with the applicable state minimum standards for termite control.

Annual reinspection receipts for 1978 and for 1981-1986 noted that there was no evidence of subterranean termites, and annual receipts from 1983-1985 reflected that the dwelling was reinspected for powder-post beetles and that retreatment was not necessary.

During the spring of 1985, the representative of a competitor of appellant visited appellee’s home and found an active powder-post beetle problem in 25-30 percent of the underside of the home, and active termites in the base of the door casing around the door on the southern end of the home. The competitor’s agent opined that the powder-post beetle outbreak covering nearly one-third of the house should have been seen “in a normal inspection a year before . . . ,” and that termites take anywhere from 6 to 18 months to reach the level of infestation he found in the spring months of 1985. Appellant’s last annual termite inspection prior to the infestation discovery was October 1984, and the last powder-post beetle inspection was November 1984. The competitor’s agent found no physical evidence that the home’s brick piers had been drilled, “a normal procedure in a treatment in a home like that.” In June 1985, after appellee complained to the state inspector for the pest control industry who noticed termite damage in the door casing on the southern side of the house, appellant’s agents replaced the door casing at no charge to appellee. The grievance/claim report completed by appellant’s agent labeled it a termite claim, referred to appellee’s termite treatment guarantee, and noted that the “original treatment” was not performed properly in accordance with standard company treating procedures.

“A homeowner may recover for negligent inspection when the evidence shows damage was present and should have been discovered in the course of an inspection. [Cit.] . . . [Discovery of . . . damage without proof it had been present at the time of an earlier inspection [does] not give rise to an action for negligent inspection.” Tabor v. Orkin Exterminating Co., 183 Ga. App. 807, 809 (360 SE2d 34) (1987). Appellee presented evidence from which it could be deduced that powder-post beetles and termites were present when appellant’s agent inspected appellee’s home in 1984. Furthermore, evidence that the structure’s brick piers should have been drilled but were not supports the verdict against appellant for negligent treatment.

Appellant can be held financially responsible only for that damage proximately caused by its negligence. As summarized above, appellee presented evidence from which the jury could conclude that appellant was negligent. The question now crucial to the viability of the jury verdict and the judgment entered thereon is whether appellee sufficiently proved damages.

An expert in construction testified that in November 1987, he exposed all exterior walls of the structure except the northern side (where damage had been documented in the 1973 report) and found extensive termite damage. He inspected the subflooring and found powder-post beetle damage. The expert estimated it would cost $13,140 to repair the termite damage and $15,750 to repair the powder-post beetle damage now apparent, excluding the northern portion of the house where appellant’s 1973 graph depicted active infestation. He admitted on cross-examination that he did not know when the damage he observed had occurred; that he had no idea whether any of the powder-post beetle damage he saw occurred between 1973 and the present; and that he could not estimate the costs of repairs needed in 1973. While appellee proved the total cost of repairs necessary to her home due to the damage done by termites and powder-post beetles, she did not isolate the cost of those damages that occurred due to appellant’s negligence. In 1973, appellant documented that appellee’s home had incurred powder-post beetle damage. Inasmuch as that damage preexisted appellant’s negligence, it cannot have been proximately caused by appellant’s negligence, and appellant cannot be held responsible therefor. Without evidence of the cost of the repair of the powder-post beetle damage existing in 1973, the jury had no basis for determining the cost to repair powder-post beetle damage that resulted from appellant’s post-1973 negligence. See Parsells v. Orkin Exterminating Co., 178 Ga. App. 51, 52 (342 SE2d 13) (1986).

In discussing the cost to repair the termite damage appellee’s home had suffered, the construction expert stated repeatedly that his figures did not include the northern side of the house, the area depicted in appellant’s 1973 chart as having suffered termite damage. However, the contractor’s figures did include repair of the damage he found upon removal of the siding from the home’s exterior walls. Appellant’s original graph depicted visible damage only and appellant refused to guarantee that the graph represented the entire damage then existing, due to the limitation to visible damage. Appellee’s witnesses were unable to testify to the age of the newly-exposed termite damage; as a result, appellee was unable to prove that the damage occurred as a result of appellant’s negligent treatment and inspection. Since there was no evidence in the record from which the jury could determine whether the damage occurred before or after appellant’s original inspection of appellee’s home, and there was no evidence concerning the cost to repair only that damage that occurred after the 1973 inspection, the jury verdict was without its necessary foundation and must fall. See Parsells v. Orkin Exterminating Co., supra. “[T]he amount of damages found by the jury must be authorized by the evidence.” Story v. Monteith, 180 Ga. App. 517, 519 (349 SE2d 760) (1986). However, the jury was never presented with the evidence from which it could determine the amount of damage appellee’s home suffered due to appellant’s negligence. In the absence of such evidence, the trial court should have granted appellant’s motions for directed verdict or for judgment n.o.v.

Reversal of the awards for powder-post beetle and termite damage renders improper as a matter of law the jury’s award of attorney fees and punitive damages in favor of appellee. Chrysler Corp. v. Marinari, 177 Ga. App. 304 (1) (339 SE2d 343) (1985); Wade v. Culepper, 158 Ga. App. 303, 305 (279 SE2d 748) (1981).

2. Appellant also sought and was denied a directed verdict on appellee’s allegation of fraud. Appellant argues that there was no evidence that its agents knowingly made false representations to appellee. The jury was authorized to conclude that appellant’s agents represented to appellee that the house had been treated when, in fact, it had not; and that appellant’s agents represented to appellee upon reinspection that there was no live infestation and no new infestation for retreatment when, in fact, there was. We find no error in the trial court’s denial of appellant’s motion on the ground of lack of intent.

Decided November 4, 1988 —

Rehearings denied December 5, 1988

Kent & Barrow, Jordon D. Morrow, Richard P. Decker, for appellant.

Adam P. Cerbone, Thomas M. Cerbone, for appellee.

3. In its final enumeration of error, appellant maintains the trial court erred by instructing the jury it was authorized to award attorney fees to appellee. “The jury may allow expenses of litigation including attorney fees where the defendant has acted in bad faith in the transaction out of which the cause of action arose. [Cits.]” Ford Motor Co. v. Stubblefield, 171 Ga. App. 331 (8b) (319 SE2d 470) (1984). Appellant’s documents disclosed its knowledge that appellee’s home had not been treated according to industry standards. That was sufficient to support the trial court’s decision to charge the jury on the issue. Id.

4. In light of our holding in Division 1, appellee’s motion for imposition of damages for frivolous appeal is denied.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Pope, J., concur.