text:
    74301.
    HUDSON v. OMAHA INDEMNITY COMPANY.
    (360 SE2d 406)
   Carley, Judge.

Appellant-plaintiff is afforded coverage under a policy of automobile insurance issued by appellee-defendant. On November 9, 1984, appellant was involved in a multi-vehicle collision. Although appellant reported suffering no physical injuries as a result of the collision, he subsequently filed a claim seeking from appellee no-fault benefits for lost wages. This claim alleged a period of disability which had begun on November 25, 1984, and which had continued until March 22, 1985. Appellee paid this claim without dispute.

On August 14, 1985, appellee received another no-fault claim in which appellant once again sought benefits for lost wages. This claim alleged that, as a result of the lingering effects of the November 1984 collision, appellant had again become disabled from April 2, 1985 until August 2, 1985. Since appellant had initially reported suffering no injuries as a result of the collision, appellee did not immediately pay appellant’s second claim purporting to be based upon a disability which had allegedly resulted from that collision. Instead, appellee exercised its right under the policy to request that appellant submit to an independent medical examination. The examination was conducted on September 20, 1985, having been rescheduled from September 10, 1985 for appellant’s convenience. Appellee was presented with the physician’s preliminary findings in a telephone call on October 7, 1985, and received the final written medical report on October 14, 1985.

Appellant filed this action on October 15, 1985, before appellee had reached its final decision with regard to its payment of appellant’s claim. Appellant sought to recover not only the no-fault benefits for lost wages, but also penalties, punitive damages, and attorney’s fees. After filing a timely answer to appellant’s complaint, appellee subsequently determined that appellant was entitled to payment of the entire amount of his claim. Accordingly, on November 7, 1985, appellee made an unconditional offer to appellant of that full amount. Appellant refused the offer. Appellee then secured permission to deposit into the registry of the court the full amount of appellant’s claim for no-fault benefits as it was authorized to do pursuant to OCGA § 9-11-67.

The parties filed cross-motions for summary judgment. After conducting a hearing, the trial court ordered payment to appellant of the funds held in the registry of the court. On the issue of penalties, punitive damages, and attorney’s fees, the trial court granted summary judgment in favor of appellee and denied appellant’s motion for summary judgment. Appellant appeals from this order granting ap-pellee’s motion for summary judgment and denying appellant’s motion.

1. OCGA § 33-34-6 (b) requires payment of no-fault benefits within 30 days of the insurer’s receipt of “reasonable proof of the fact and amount of loss sustained.” OCGA § 33-34-6 (c) requires payment of no-fault benefits within 60 days “after proper proof of loss has been filed” by the insured. However, what the insured himself has offered in support of his claim does not necessarily constitute “reasonable proof’ and “proper proof” thereof so as to trigger the applicability of the 30/60-day provisions of OCGA § 33-34-6. “Procedurally, we visualize a PIP claim as no different than any other claim against an insurer. It can hardly be argued that an insurer cannot investigate what reasonably appears to be a questionable claim simply because the underlying statute authorizing the coverage does not mention such investigative rights. [Cit.]” Morris v. Aetna Life Ins. Co., 160 Ga. App. 484, 485 (1) (287 SE2d 388) (1981). Thus, it has been recognized that the insurer, in the exercise of its right to investigate an insured’s no-fault claim, may require that the insured further support the claim he has filed by submitting to an independent medical examination. See Morris v. Aetna Life Ins. Co., supra; Falagian v. Leader Nat. Ins. Co., 167 Ga. App. 800 (307 SE2d 698) (1983). However, the insurer cannot automatically insulate itself from potential liability under OCGA § 33-34-6 merely by requesting that the insured submit to an independent medical examination. The right of the insurer to require that the insured further submit to an independent medical examination “is limited by the reasonableness of its exercise under the circumstances.” Falagian v. Leader Nat. Ins. Co., supra at 801. Thus, an insurer is “authorized to withhold payment of [a no-fault] claim beyond thirty [or sixty] days, pending [a] medical examination, only if the suspicions prompting the requiring of the [examination] were reasonable.” Falagian v. Leader Nat. Ins. Co., supra at 802.

Appellant’s no-fault claim of August 14, 1985 was not paid by appellee within 30 or 60 days thereafter. However, the delay was attributable to appellee’s request that appellant provide further support for his claim by submitting to an independent medical examination. Accordingly, if, under the existing circumstances, that request was reasonable, the delay pending appellant’s independent medical examination would not subject appellee to liability under OCGA § 33-34-6. “The question of that reasonableness is generally for the jury ([cit.]), but there are instances in which it can be decided as a matter of law by the court. [Cit.]” Falagian v. Leader Nat. Ins. Co., supra at 801. The circumstances which were present in this case are virtually identical to those which existed in Falagian v. Leader Nat. Ins. Co., supra. “We find from these circumstances that [appellee] has met its burden of proof in showing that ‘its failure or refusal to pay [within 30 or 60 days of August 12, 1985,] was in good faith.’ [Cit.]” Falagian v. Leader Nat. Ins. Co., supra at 802. Less than 30 days after appellee had received the results of the independent medical examination, appellant, by filing suit for penalties, punitive damages, and attorney’s fees, gave advance notice, in effect, that he would not accept payment of merely the no-fault benefits for lost wages. A “notification in advance that [a payment] will not be accepted waives the tender of [it].” Southern Life Ins. Co. v. Logan, 9 Ga. App. 503, 504 (2) (71 SE 742) (1911). Nevertheless, when appellee did make an unconditional offer to pay appellant’s claim in full within 30 days of its receipt of the results of the independent medical examination, appellant refused to accept it. “Where an offer is made to pay whatever amount is due, and the person to whom tender is due refuses to accept any amount, the refusal dispenses with the formality of making a legal tender. [Cits.]” Crawley v. Selby, 208 Ga. 530, 537 (3) (67 SE2d 775) (1951). Accordingly, the trial court correctly granted summary judgment in favor of appellee and denied appellant’s motion for summary judgment.

Decided July 1, 1987

Rehearing denied July 28, 1987

Fred A. Gilbert, for appellant.

Sewell K. Loggins, Brian J. Morrissey, Laura E. Stevenson, for appellee.

2. Remaining enumerations of error have been considered, but are without merit.

3. Appellee asserts in its brief that appellant’s appeal is frivolous, and urges that appellant’s act of pursuing a frivolous appeal would constitute “abusive litigation” under Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). Appellee requests that we therefore remand this case to the trial court in order that a Yost counterclaim can be filed against appellant.

The Yost decision has nothing whatsoever to do with a losing litigant’s pursuit of his right to appeal. The only applicable authority for the imposition of a penalty for pursuit of a frivolous appeal is either OCGA § 5-6-6 or Rule 26 (b) of this Court. Appellee has not invoked the applicable authority to penalize appellant, and we deny its request to remand this case to the trial court in order that appellee can file a Yost counterclaim against appellant.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    74505.
    BILLINGSLEY v. THE STATE.
    (360 SE2d 451)
   Banke, Presiding Judge.

Appellant was convicted of two counts of vehicular homicide based on evidence that she had caused the deaths of Sheila Flewellen and of Mrs. Flewellen’s unborn child by driving under the influence of alcohol. Mrs. Flewellen was six-months pregnant at the time the incident occurred. A blood test administered to the appellant following her arrest registered her blood-alcohol content at .21 percent. Held:

1. The appellant contends that she cannot be convicted of a separate count of vehicular homicide based on the death of the unborn child because an unborn child does not constitute a “person” within the meaning of the vehicular homicide statute. That statute, OCGA § 40-6-393, provides, in pertinent part, as follows: “(a) Any person who, without malice aforethought, causes the death of another person through the violation of Code Section 40-6-271, 40-6-390, 40-6-391, or subsection (a) of Code Section 40-6-395 commits the offense of homicide by vehicle in the first degree and, upon conviction thereof, shall be punished by imprisonment for not less than two years nor more than 15 years.”

In various types of civil actions involving death or injury to unborn children, it has been held that an unborn fetus may be included within the definition of “person.” For example, this court, in the recent case of Gulf Life Ins. Co. v. Brown, 181 Ga. App. 72 (351 SE2d 267) (1986), denied summary judgment to a life insurance carrier on the issue of whether its policy covered a stillborn child. See also Tucker v. Howard L. Carmichael & Sons, 208 Ga. 201 (65 SE2d 909) (1951) (action allowed for prenatal injury to “quick” child); Porter v. Lassiter, 91 Ga. App. 712 (87 SE2d 100) (1955) (action allowed for wrongful death of “quick” child); Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504 (93 SE2d 727) (1956) (holding that injury sustained by unborn child during any period of prenatal life is actionable); Shirley v. Bacon, 154 Ga. App. 203 (267 SE2d 809) (1980) (holding that there is no absolute rule on when “quickening” occurs); McAuley v. Wills, 251 Ga. 3 (303 SE2d 258) (1983) (holding that in some situations a duty is owed towards an unconceived child.) Unfortunately, these cases provide us with no guidance towards resolution of the present appeal, since it involves a statute which is penal in nature and consequently must be narrowly construed. See generally Hayes v. State, 11 Ga. App. 371 (75 SE 523) (1912).

In this state, no act is criminal unless it is expressly made so by positive legislative enactment. OCGA § 16-4-1; Moore v. State, 94 Ga. App. 210 (94 SE2d 80) (1956). However, although there are no common law crimes, it is axiomatic that certain words appearing in criminal statutes are intended by the legislature to have the same meaning they had at common law. Jones v. State, 101 Ga. App. 851, 855 (115 SE2d 576) (1960).

As used in our criminal code, the term “person” is defined, in relevant part, to mean an “individual.” OCGA § 15-1-3 (12). However, no definition of “individual” appears in the code, nor is there any further relevant attempt to define “person.” Turning therefore to the common law, we find that an unborn fetus clearly was not considered a “person” or “human being” and that the killing of an unborn child consequently was not regarded as a homicide at common law. (See Roe v. Wade, 410 U. S. 113 (93 SC 705, 35 LE2d 147) (1973), for an indepth history and analysis of the common law on this subject and of its impact on legislation in this country.)

Because we must construe penal statutes narrowly in favor of the accused, it follows from the foregoing that we must presume the legislature did not intend for the term “person” as used in the vehicular homicide statute to encompass unborn children. This interpretation is supported by the fact that the legislature re-enacted a feticide statute in 1982 (OCGA § 16-5-80, Ga. L. 1982, p. 2499, § 1), a course of action which would have been unnecessary had unborn children been considered persons within the meaning of our existing homicide statutes.

Because an unborn child cannot be considered a “person” within the meaning of OCGA § 40-6-393, it follows that the appellant’s conviction of vehicular homicide arising from the death of the unborn child must be reversed. We note that this result is in accord with the holdings of numerous other jurisdictions in which the issue has been considered. See, e.g., Keeler v. Superior Court, 2 Cal. 3rd 619 (470 P2d 617, 87 Cal. Rptr. 481) (1970); State v. A.W.S., 182 N.J. Super. 334 (440 A2d 1174) (1980), aff’d, 182 N.J. Super. 278 (440 A2d 1144) (1981); State v. Dickinson, 23 Ohio App.2d 259 (263 NE2d 253) (1970), aff’d, 28 Ohio St.2d 65 (275 NE2d 599) (1971).

2. Appellant asserts that it was error for the trial court to admit the results of her blood-alcohol test because she was not advised at the time of her initial detention of her implied consent rights and also because she did not have the benefit of counsel at the time she actually gave her consent. As to appellant’s first contention, we agree with the observation of the trial court that the appellant was actually better protected by being informed of her implied consent rights at the hospital than she would have been by being so informed at the scene of the accident. Accord Perano v. State, 250 Ga. 704, 707 (300 SE2d 668) (1983). As to the second contention, it has been clearly established that a defendant does not have a right to counsel at or prior to the administration of a blood-alcohol test. See Oyler v. State, 175 Ga. App. 486 (333 SE2d 690) (1985).

3. Appellant next contends the blood-alcohol test should not have been admitted due to the absence of evidence of an unbroken chain of custody establishing that the test sample was free from tampering. This enumeration of error is without merit. “The circumstances of the case need only establish reasonable assurance of the identity of the sample.” Rucker v. State, 250 Ga. 371, 373 (297 SE2d 481) (1982). This was accomplished in the present case, as it was in Rucker, by evidence the blood sample was intact upon its arrival at the State Crime Lab and that it exhibited no visible signs of tampering.

4. Appellant contends that the evidence was insufficient to establish that she was intoxicated at the time of the accident. The weight of the evidence and the credibility of the witnesses are for the jury to determine. See generally Bryant v. State, 174 Ga. App. 468 (1) (330 SE2d 406) (1985). We hold that the evidence as a whole was sufficient to enable a rational trier of fact to find the appellant guilty of one count of vehicular homicide beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided July 16, 1987

Rehearing denied July 28, 1987.

Tony H. Hight, for appellant.

Robert E. Wilson, District Attorney, John H. Petrey, Elisabeth MacNamara, Assistant District Attorneys, for appellee.

5. Appellant contends the trial court erred in failing, without request, to charge the jury on proximate cause. A criminal defendant has a duty pursuant to OCGA § 5-5-24 (b) to request any desired jury instructions, and the defendant is relieved of this duty only with respect to omissions which are clearly harmful as a matter of law in that the resulting charge “fails to provide the jury with proper guidelines for determining guilt or innocence.” Spear v. State, 230 Ga. 74, 75 (195 SE2d 397) (1973). Since the appellant did not request the charge in question, and since the trial court specifically charged the jury that causation was a material element of the offense which the state was required to prove beyond a reasonable doubt, we find this enumeration of error to be without merit.

6. Appellant’s final contention is that the trial court erred in failing to give a requested charge setting out to the jury her contention that the accident was caused by the other driver’s running a red light. As a review of the transcript reveals that the trial court in fact gave the requested charge, this enumeration of error presents nothing for review.

Judgment affirmed in part and reversed in part.

Benham, J., concurs. Carley, J., concurs in Divisions 1, 3, 4, 5, 6, and judgment.


author: Deen, Presiding Judge.

text:
    74728.
    BASILE v. THE STATE.
    (360 SE2d 414)
   Deen, Presiding Judge.

Nancy Basile brings this appeal from her conviction of improper passing as defined in OCGA § 40-6-44 following the denial of her motion for a new trial. She was fined $40.

1. The evidence showed that an automobile had slowed down to make a turn when Ms. Basile crossed the centerline and attempted to pass it. A collision resulted when the other vehicle turned and the right rear quarter panel of the defendant’s automobile was damaged as was the front of the other automobile.

Decided July 13, 1987

Rehearing denied July 28, 1987

Adele P. Grubbs, for appellant.

Patrick H. Head, Solicitor, Philip M. Goldstein, Melodie H. Clayton, Assistant Solicitors, for appellee.

OCGA § 40-6-44 provides in part: “No vehicle shall be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the operation of any vehicle approaching from the opposite direction or any vehicle overtaken.” (Emphasis supplied.)

The other driver testified that she had slowed down and turned on her signal lights well in advance of attempting to turn. A witness testified that she saw the signal light flashing as the vehicle was attempting to turn into her driveway. The defendant denied seeing any signal lights. The driver of the other vehicle further testified that she could have safely made the turn had Ms. Basile’s automobile not struck her as she was attempting her turn.

The trier of fact determines the credibility of the witnesses. Construing the evidence in favor of the verdict, we find that it was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Everett v. State, 263 Ga. 359, 361 (320 SE2d 535) (1984).

2. It was not error for the trial court to permit the state to ask the defendant whether she made a passing motion without interfering with the operation of the vehicle she was passing. She replied, over objection, “I don’t know how to answer it. No.” As the prosecutor’s question dealt with a question of fact, we find no error. Moreover, it is unlikely that appellant’s answer contributed to the verdict.

Judgment affirmed.

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


author: Carley, Judge.

text:
    73690.
    KRES v. WINN-DIXIE STORES, INC.
    (360 SE2d 415)
   Carley, Judge.

Appellant-plaintiff fell while shopping in appellee-defendant’s retail grocery store. The object which caused appellant’s fall was a flatbed cart approximately 4-¥2 feet long, 2 feet wide, and sitting some 9-Vz inches from the floor. The two long sides of the cart were open, but both ends were enclosed by walls approximately 5 feet high. The cart was used by appellee to transfer products from storage to display areas and was painted green. On the day that appellant fell, the cart was empty and sitting immediately in front of a case wherein eggs were displayed. As appellant reached for a carton of eggs from the display case, she somehow stumbled and fell. According to appellant, she did not see the cart and tripped over it. However, there was also evidence that she stepped onto the cart and fell from it. Appellant’s suit for damages against appellee was tried before a jury. Appellant appeals from the judgment entered by the trial court on the jury’s verdict in favor of appellee.

1. The jury was authorized to find that the cart was a “usual” obstruction in the aisles of appellee’s store and that a customer would, therefore, have a duty to maintain a lookout ahead for its presence in his path. See King Hardware Co. v. Teplis, 91 Ga. App. 13, 15 (84 SE2d 686) (1954); Kitchens v. Davis, 96 Ga. App. 30, 34 (99 SE2d 266) (1957). For this reason, appellant requested a charge on the distraction theory and enumerates as error the trial court’s refusal to give her request. The distraction theory provides “ ‘that a plaintiff may be excused from the otherwise required degree of care because of circumstances creating an emergency situation of peril. . . . The doctrine is further broadened to cover situations where the plaintiff’s attention is distracted by a natural and usual cause, and this is particularly true where the distraction is placed there by the defendant or where the defendant in the exercise of ordinary care should have anticipated that the distraction would occur.’ ” Stenhouse v. Winn-Dixie Stores, 147 Ga. App. 473, 475 (249 SE2d 276) (1978). Thus, where the plaintiff’s attention is distracted away from an obstruction that, in the exercise of ordinary care for his own safety, he otherwise could and would have seen and avoided, he can still recover. See generally Stenhouse v. Winn-Dixie Stores, supra; Sears, Roebuck & Co. v. Chandler, 152 Ga. App. 427 (1) (263 SE2d 171) (1979). The only distraction alleged in this case is appellee’s display of eggs. The egg display itself could not, however, have distracted appellant’s attention away from the presence of appellee’s cart in her path as she approached it. The cart was sitting immediately in front of the egg display so that one approaching that display intending to pick up a carton, as was appellant, would necessarily have seen the cart had he been looking ahead and in that direction. If appellant’s attention had been directed toward the egg display, “her attention was directed to the very direction in which she was walking, and she was not relieved of the duty of avoiding a large, familiar, and conspicuous object in her path. [Cits.] It is generally incumbent upon one to use his eyesight for the discovering of any obstruction that may have been placed in the way. [Cits.]” (Emphasis supplied.) Slaughter v. Slaughter, 122 Ga. App. 374, 379 (177 SE2d 119) (1970).

From the evidence, it would appear that appellant did not maintain a lookout ahead prior to her arrival at the egg display. When she did reach the display, she merely stepped forward and reached for a carton without looking where she was stepping. This evidence raises the issue of whether, in the exercise of ordinary care for her own safety, appellant need not have anticipated the possible presence of an obstruction such as appellee’s cart and therefore need not have maintained a lookout ahead as she approached and then stepped up to the egg display. “[0]ne is under a duty to look where he is walking and to see large objects in plain view which are at a location where they are customarily placed and expected to be; not performing this duty may amount to a failure to exercise ordinary care for one’s safety as would bar a recovery for resulting injuries. [Cits.]” (Emphasis supplied.) Stenhouse v. Winn-Dixie Stores, supra at 474-475. Assuming that such a duty did not exist, appellant was authorized to recover. Assuming, however, that such a duty did exist, the evidence does not raise the issue of appellant’s possible distraction from its performance. Accordingly, the trial court did not err in refusing to give a charge on the distraction theory. See generally Georgia Farmers’ Market v. Dabbs, 150 Ga. App. 15, 18 (7) (256 SE2d 613) (1979).

2. The trial court did not err in denying appellant’s motion for a directed verdict as to appellee’s affirmative defenses. There was sufficient evidence to warrant the submission of those defenses to the jury. Accordingly, instructing the jury with regard to the legal principles applicable to those defenses was likewise proper.

3. At trial, appellant objected “to the Court’s failure to charge [her] Request to Charge [Number 15]. . . .” On appeal, appellant enumerates as error the trial court’s failure to instruct the jury on the legal principle contained in her written request to charge Number 15. Appellee urges that the objection raised by appellant in the trial court is not sufficient to preserve the right to enumerate error as to the failure to give the requested charge. There is authority for appellee’s contention. See Green v. Dillard, 176 Ga. App. 574, 576 (2) (337 SE2d 55) (1985). However, “[although past decisions may suggest that objections to the court’s refusal to charge as requested are controlled by the same rule governing objections to the failure to charge [without request] or objections to the charges as given ([cits.]), the Supreme Court has held otherwise. See Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8 (2) (195 SE2d 417) [(1973)]. Thus, ‘ “[w]here the trial court refused to instruct the jury in accordance with a timely submitted written request, in order to secure review of that action on appeal it is unnecessary for the party to state grounds of objection to such refusal at the conclusion of the charge.” ’ [Cit.] It is only necessary that the refusal to charge be objected to at some point [Cit.] Accordingly, appellee’s argument that appellant’s objection was insufficient is not well taken, and, under the authority of Continental Cas. Co., supra, we deem it proper to review appellant’s enumeration of error.” Roberson v. Hart, 148 Ga. App. 343, 344 (1) (251 SE2d 173) (1978). It follows that, insofar as it requires a statement of the grounds of objection to a trial court’s failure to give a timely written request, Green v. Dillard, supra, is inconsistent with controlling Supreme Court authority and must be overruled.

Decided July 13, 1987

Rehearing denied July 30, 1987

Rikard L. Bridges, for appellant.

Appellant’s request to charge was: “[A] shopper’s mere knowledge of a condition is not the same as the knowledge or comprehension of the danger or risk involved, so that the mere knowledge of a shopper of the existence of that condition will not necessarily prevent such shopper from recovering for injuries sustained as a result of such condition.” The request states an accurate legal principle. See generally Robinson v. Western Intl. Hotels, 170 Ga. App. 812, 813-815 (1) (318 SE2d 235) (1984). However, assuming without deciding that appellant’s request to charge states that legal principle in a sufficiently non-argumentative fashion, the principle would still have to be applicable under the evidence in this case. The legal principle contained in the requested charge would presuppose that appellant had knowledge of the presence of appellee’s cart and that she lacked knowledge or comprehension of the danger or risk evidenced thereby. The possibility of stumbling over a cart that one knows is directly in his path or the possibility of falling from a wheeled cart that one voluntarily steps upon is an apparent rather than a hidden danger or risk. Compare Robinson v. Western Intl. Hotels Co., supra, wherein the possibility that one exiting the steps from a particular booth would have a tendency to surge forward was not necessarily apparent to one whose only previous experience with the steps was in entering the booth. Under the evidence, if appellant knew of the presence of appellee’s cart in her path and simply walked into it and tripped over it or stepped on it and fell from it, she could not recover. It follows that appellant’s request to charge was not adjusted to the evidence and the trial court did not err in refusing to give it.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Sognier, Pope, Benham, and Beasley, JJ., concur.

William C. Sanders, for appellee.


author: Beasley, Judge.

text:
    74332, 74333, 74334.
    GLENRIDGE UNIT OWNERS ASSOCIATION, INC. v. FELTON; and vice versa.
    (360 SE2d 418)
   Beasley, Judge.

These appeals and cross-appeal involve a dispute between the homeowners’ association, Glenridge Unit Owners’ Association, Inc., and a unit owner of a condominium complex. Ms. Felton was the occupant of the unit and the daughter of the title holder of the unit.

Based on a jury verdict, plaintiff association was awarded a judgment for past due association fees and attorney fees. Defendant Fel-ton was awarded, on her counterclaim, contract damages and tort damages as well as attorney fees and punitive damages.

1.Both parties filed motions for judgment notwithstanding the verdict, which were both ruled on by order of August 21, 1986. Prior to that ruling, however, on May 30, 1986, Glenridge had filed its notice of appeal in our Case No. 74334. After that ruling, on August 25, 1986, Glenridge filed its notice of appeal in our Case No. 74332. Having done so, the appeal in the first case is moot and is dismissed. OCGA § 5-6-48 (b) (3); see Gillen v. Bostick, 234 Ga. 308, 311 (1) (215 SE2d 676) (1975).

Case No. 74332

2. At the close of defendant Felton’s case, and at the close of all of the evidence, including extensive rebuttal and surrebuttal evidence, Glenridge moved for directed verdict concerning defendant’s counterclaim and then a motion for judgment notwithstanding the verdict as to the counterclaim. Glenridge’s enumerations one and two claim that the denial of these motions was error.

The grounds asserted in the motion for judgment n.o.v. and on appeal will not be considered because they were not asserted in support of the motions for directed verdict as required by OCGA § 9-11-50 (b). Battle v. Yancey Bros., 157 Ga. App. 277 (1a) (277 SE2d 280) (1981).

The grounds argued on appeal with regard to the motion for directed verdict succumb to a like fate. Grabowski v. Radiology Assoc., 181 Ga. App. 298, 299 (2) (352 SE2d 185) (1986); Fidelity & Cas. Ins. Co. v. Massey, 162 Ga. App. 249, 250 (1) (291 SE2d 97) (1982).

3. In its enumerations three, four, and five, Glenridge appeals from the denial of its motions for new trial on the general grounds, OCGA §§ 5-5-20 & 5-5-21, and upon the ground that the court ex-eluded material evidence contrary to OCGA § 5-5-22.

As to the general grounds, we have reviewed the record and, as to the counterclaim of Felton, both on the breach of contract for failure to repair and on the nuisance/negligence claim concerning the drainage of water, the evidence is sufficient to support the verdict. “The grant or denial of a motion for new trial ... is a matter within the sound discretion of the trial court and will not be disturbed ... if there is ‘any evidence’ to authorize it.” Associated Software &c. v. Wysocki, 177 Ga. App. 135, 137 (338 SE2d 679) (1985); Commercial Artsvcs. v. Buchtal Corp., 180 Ga. App. 305, 306 (348 SE2d 768) (1986); Green v. Dillard, 176 Ga. App. 574, 575 (1) (337 SE2d 55) (1985), overruled on other grounds, Kres v. Winn-Dixie Stores, 183 Ga. App. 854 (360 SE2d 415) (1987).

The evidence ground involved Exhibit #8, two documents which Glenridge asserts should have been admitted. The first was a check in the amount of $5,556.37 to Felton in 1982 from the property management company of Glenridge for water damage in her unit. The other was a handwritten listing of repair costs allegedly included in this payment.

In a motion in limine just before trial, Felton objected that the evidence was not relevant and improperly injected insurance into the case. Glenridge contended it showed that Felton had already been partially paid for the damages she was claiming and that she was accepting the benefits of, but refusing to pay, her association fees. The court had granted Glenridge’s motion for summary judgment as to her liability for the dues. The court tentatively ruled the evidence inadmissible but left open later reconsideration.

In the course of the cross-examination of Felton, counsel for Glenridge attempted to question her concerning the payment she had received. At that point, a discussion was held off the record between counsel and the court. Counsel for Glenridge did then question Felton about the repairs done to her unit in 1982 and where they were located. She had no specific recall concerning these repairs, although she did acknowledge receipt of payment and stated that it was “about $4,000.”

When the check and handwritten notes were again proffered, Fel-ton objected on hearsay grounds. The documents were hearsay and were not properly authenticated. OCGA § 24-3-1; Rodgers v. Cumberland Volkswagen, 167 Ga. App. 826, 828 (307 SE2d 721) (1983). Thus, the exclusion of these documents was not error.

4. Glenridge’s enumerations six through eight, ten, fourteen and fifteen allege error in failures of the court to charge various theories of law. Glenridge’s requests to charge, however, contain none which give rise to any of the enumerations except number six, and after the charge was given, no objections to these failures to charge were made. As to these, there is nothing to review. OCGA § 5-5-24; AAA Van Svcs. v. Willis, 180 Ga. App. 18, 19 (3) (348 SE2d 475) (1986); Eiberger v. West, 165 Ga. App. 559, 560 (2) (301 SE2d 914) (1983).

Enumeration six claims erroneous instruction as to issues of contract which Glenridge claims are not applicable to the case. We are unable to understand the claim of error since Glenridge requested that the trial court instruct on contract principles and the court did so. There is thus no error.

5. Glenridge complains in enumeration nine of the court’s giving of Felton’s Requests to Charge Nos. 2 and 4, which dealt with one’s obligation not to cause rainwater to flow other than naturally over the property of another. These two charges were objected to after the charge was given, only on the ground that there was no evidence of the alteration of flow by the Association. Additional grounds are argued on appeal and will not be considered. OCGA § 5-5-24; AAA Van Svcs., supra; Eiberger, supra.

There was evidence of alterations made in the property by the management company, some in an apparent effort to correct the drainage problems. There was evidence from Felton and her witnesses, and from one of Glenridge’s experts, that ponding around the foundation of the unit could cause damage to the foundation. This evidence authorized the charge.

6. In enumerations eleven, twelve, and thirteen, Glenridge complains of the trial court’s failure to give its written Requests to Charge Nos. 4, 7, and 12. The arguments made in the brief and the objections made at trial underline the need for clarity in making objections and in arguing, whether the objections concern the refusal to give a requested charge, or claimed error in the charge given, or an omission to charge although not requested. OCGA § 5-5-24; Christiansen v. Robertson, 237 Ga. 711 (229 SE2d 472) (1976) (adequacy of objection to erroneous charge and an omission to charge, although no request made); Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8 (195 SE2d 417) (1973) (refusal to give written request to charge); Kres v. Winn-Dixie Stores, supra. Here, there was a written request to charge No. 12 below; that charge was given as requested. Plaintiffs Request No. 2 was not given, but that failure is not enumerated as error and is deemed abandoned. Clark v. State, 180 Ga. App. 280, 282 (2) (348 SE2d 916) (1986); MacDonald v. MacDonald, 156 Ga. App. 565, 566 (1) (a) (275 SE2d 142) (1980). The brief fails to enlighten as to what it is Glenridge intended to argue here.

Glenridge’s Request No. 4, which was not given and was properly reserved, enumerated, and argued, was: “In order to recover on a claim of negligence, Defendant [Felton] also must show that any injury or loss to her unit was not the result of her own actions or neglect, in whole or in part.” (Emphasis in original.) Felton objected during the charge conference on the ground that it was an incorrect statement of the law in that it improperly placed the burden on a party to disprove his own negligence. We agree. While comparative negligence is available as an affirmative defense in Georgia, see OCGA § 5-11-7, the burden of proving it remains with the party relying upon it and not upon the party making the original negligence claim to disprove it. OCGA § 24-4-1; Williams v. Southern R. Co., 126 Ga. 710, 711 (55 SE 948) (1906); Falkner v. Behr, 75 Ga. 671, 674 (4) (1884).

“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. [Cit.]” Medoc Corp. v. Keel, 166 Ga. App. 615, 618 (2) (305 SE2d 134) (1983); see Ga. Kraft Co. v. Laborers’ Intl. Union, 170 Ga. App. 581, 585 (317 SE2d 602) (1984); Gibbs v. First Fed. Savings &c. Assn., 161 Ga. App. 27 (1) (289 SE2d 1) (1982).

Glenridge’s Request to Charge No. 7 dealt with the statute of limitation for suits against developers for construction defects, as provided in OCGA § 9-3-30. Felton objected during the charge conference, and Glenridge did except to the court’s refusal to give it. The omission of the charge was not error. Failure to plead the affirmative defense of the statute of limitations results in its being waived. OCGA § 9-11-8 (c); Owens v. Owens, 248 Ga. 720, 722 (3) (286 SE2d 25) (1982). It had not been pled.

7. Lastly, Glenridge complains of the trial court’s failure to direct a verdict for it on the issue of attorney fees on the ground that there was insufficient evidence of the amount of the fees claimed and the reasonable value of the services rendered. Glenridge did not move for directed verdict on this ground nor include it in the motion for judgment notwithstanding the verdict, both of which are prerequisites to our review of the question. Joseph v. Bray, 182 Ga. App. 131 (1) (354 SE2d 878) (1987); Grabowski v. Radiology Assoc., 181 Ga. App. 298, 299, supra.

There being no reversible error, as raised by plaintiff/appellant Glenridge, the judgment of the trial court is affirmed in Case No. 74332.

Case No. 74333

In her cross-appeal, Felton claims five errors.

8. Her enumerations three and five attack the denial of her motion for judgment notwithstanding the verdict. No motion for directed verdict was made as to either ground of the motion for judgment n.o.v., as required by OCGA § 9-11-50 (b), and will not be considered. Battle v. Yancey Bros., supra.

9. Enumeration four complains of the court’s submission to the jury of the issue of attorney fees, but Felton did not object until after the charge. She did not move for directed verdict on this ground, and that would have been the only device for eliminating the question from the jury’s consideration during trial. OCGA § 9-11-50. The argument here concerns her claim that the theory of “set-off” prevented the jury from considering the issue; it was not properly presented to the trial court, providing nothing for us to review. In addition, any set-off of judgment is still available to both parties. OCGA § 9-13-75.

10. In her first enumeration, Felton objects to the court’s allowance of Glenridge’s second amendment to its complaint on the day trial began. Plaintiff’s original complaint filed in December 1983 claimed assessments due under the declaration and bylaws of the condominium association up through the date of filing and claimed all future assessments. A few months later, plaintiff moved for summary judgment, seeking $2,242.64 due in assessments and late fees through the date of the accompanying affidavit. The court granted that motion, and in December 1985, plaintiff amended its complaint to seek the assessments and late fees through the end of November and filed a “Motion to Amend Judgment,” seeking to add this money to its previously-won summary judgment. We find no order deciding this motion. On the day of trial plaintiff filed another amendment, seeking the assessments and late fees through March 1986, in the total sum of $5,765.90. Felton objected.

During the trial, plaintiff Glenridge submitted evidence, unobjected to by Felton, that through March 1986, she owed assessments and late fees of $5,465.90. The court granted Glenridge’s motion for directed verdict for these assessments and fees.

The second amendment was not needed to raise and try the issue of assessments due as of the date of trial. The original complaint claimed all assessments due as of that date and “all future assessments accruing after Nov. 1, 1983, which remain unpaid.” The unobjected-to first amendment added the late fees. Thus, at the time of the second amendment, the only change made was in the total claimed. Allowing the amendment was not error. Abernethy v. Cates, 182 Ga. App. 456, 460 (8) (356 SE2d 62) (1987).

11. Felton complains that the trial court erred in granting judgment for $5,465.90 when the motion for directed verdict was only in the amount of $5,270. While the motion did allude to the smaller figure, it was a mere lapsus lingue, and the evidence reflected the $5,465.90 due. The court was required, as it did, to grant the verdict based on the evidence, not the statement of counsel. OCGA § 9-11-50 (a).

12. Appellee Felton has moved for imposition of damages pursuant to OCGA § 5-6-6. Although we have had to plod through numerous enumerations of error which were defective because not properly raised below and so should not have been asserted, consideration of the whole case does not lead us to the conclusion that it was appealed for delay only. OCGA § 5-6-6. The motion is denied.

Decided July 15, 1987.

Philip S. Downer, Jeffrey A. Hurley, James B. Rhoads, Amy Griffith Dever, for appellant.

Glenville Haldi, for appellee.

Judgment affirmed in Case Nos. 74332 and 74333. Appeal dismissed in Case No. 74334.

McMurray, P. J., and Sognier, J., concur.


author: Carley, Judge. Banke, Presiding Judge, Beasley, Judge,

text:
    73875.
    SIMMERSON v. BLANKS.
    (360 SE2d 422)
   Carley, Judge.

Appellant-plaintiff’s complaint against appellee-defendant was filed in 1977. From May of 1979 until June of 1983, no order was entered in the action. Then, on June 16, 1983, the trial court entered an order which allowed appellant’s counsel to withdraw and which “further ordered that the above case is continued past the May term of court and that all matters in this case are continued for a reasonable length of time so that [appellant] may retain additional counsel.” This order of June 16, 1983, was entered without appellant having made a written motion for continuance and without notice having been given to appellee. On April 28, 1986, appellee moved to dismiss appellant’s complaint pursuant to OCGA §§ 9-2-60 and 9-11-41, contending that no written order had entered in the action for a period in excess of five years. After a hearing, the trial court granted appellee’s motion to dismiss appellant’s complaint, holding that the grant of a continuance in June of 1983 was an invalid order, in that no notice had been given to appellee and no written motion seeking a continuance had been filed. Appellant appeals from this order dismissing his complaint.

Both OCGA §§ 9-2-60 (b) and 9-11-41 (e) specifically provide that, for purposes of determining whether an action is dismissed by operation of law because of the absence of a written order for a period in excess of five years, “an order of continuance will be deemed an order.” In this case, there was an order, signed by the trial judge and filed in the clerk’s office, which unequivocally ordered “that the above case is continued past the May Term of court and that all matters in this case are hereby continued for a reasonable length of time so that plaintiff herein may retain additional counsel.” Since an order granting a continuance is an order within the meaning of the cited Code sections and since the order of continuance at issue here was properly entered, this case is distinguishable from Beck v. Dean, 177 Ga. App. 144 (338 SE2d 693) (1985). In Beck, the only order entered within the five-year period was a rule nisi setting a hearing on a motion seeking a continuance.

The trial court’s order entered on September 2, 1986, granting appellee’s motion for automatic dismissal under the five-year rule, had the effect of setting aside or rescinding its previous order of continuance which had been entered some three years earlier. The trial court stated that its 1983 order of continuance was ex parte, without written motion and was “an inadvertent entry by [the] Court. . . Although it is true that the Civil Practice Act requires a written motion to obtain an order, we have found no case wherein the actual entry by the trial court of an order has been held to be invalid because of the absence of a written motion. Compare Addis v. First Kingston Corp., 225 Ga. 231 (167 SE2d 656) (1969), holding that it was not error to deny an oral motion. With regard to the ex parte nature of the continuance order, “ ‘[i]t should first be observed that there is no legal requirement in this State whereby prior notice of intention to apply for the continuance of any matter must be given to the opposing party or his counsel. This being true, a trial judge has authority to grant a continuance ex parte if he desires. . .'" Piper v. Piper, 139 Ga. App. 19, 20 (227 SE2d 842) (1976).

In this case, an order apparently meeting the requirements of the Code sections was entered so as to start again the five-year period of time. “The statute ‘places upon a plaintiff who wishes to avoid an automatic dismissal of his case by operation of law a duty to obtain a written order of continuance or other written order at some time during a five-year period and to make sure the same is entered in the record. [Cits.]’ ” Scott v. DeKalb County Hosp. Auth., 168 Ga. App. 548 (2) (309 SE2d 635) (1983). In this case, until the trial court’s order from which appeal is now taken, appellant was under the impression that he had discharged the duty envisioned by Scott. “The grant of a continuance to [appellant] in the instant case is not invalid for any of the reasons stated in the court’s order revoking same. Having exercised his discretion in granting a valid continuance, the trial judge may not thereafter revoke his previous grant where, as here, manifest injustice would result therefrom.” Reserve Life Ins. Co. v. Gay, 99 Ga. App. 661, 668 (3) (109 SE2d 919) (1959). Since the trial court’s order revoking the grant of a continuance was entered some three years after the entry of the order granting the continuance — and after the expiration of over five years from the last written order prior to the continuance order — it is obvious that “manifest injustice” would result if that order revoking the continuance is affirmed. Accordingly, the order granting appellee’s motion to dismiss appellant’s complaint is reversed.

Judgment reversed.

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

Banke, Presiding Judge,

dissenting.

I must dissent, as I believe that the majority’s decision does not protect the plaintiff from manifest injustice but instead results in manifest injustice to the defendant, who is now faced with defending a suit which has been pending for over 10 years, yet in which the only substantive action taken by the plaintiff has been the filing of the complaint.

The majority neglects to mention that, although the plaintiff’s ex parte motion for continuance was ostensibly predicated on his counsel’s intention to withdraw from his representation of the plaintiff and the consequent need to allow the plaintiff an opportunity to secure replacement counsel, counsel never in fact withdrew but has continued to represent the plaintiff up to and throughout this appeal. “The five-year rule was intended to prevent long delays before trial, not to facilitate such delays. [Cit.]” Jefferson v. Ross, 250 Ga. 817, 819 (301 SE2d 268) (1983). There being ample basis in this case for a finding that the plaintiff sought the ex parte continuance order solely for the purpose of avoiding the effect of the 5-year automatic dismissal rule and for no other bona fide purpose connected with the litigation, I would hold that the trial court did not abuse its discretion in revoking the continuance order and granting the defendant’s motion to dismiss the complaint.

I am authorized to state that Presiding Judge Deen, Presiding Judge McMurray, and Judge Beasley join in this dissent.

Beasley, Judge,

dissenting.

The majority is concerned about injustice being done the plaintiff if the order continuing the case is allowed to be considered invalid or of no effect because inadvertently entered. It is urging, as I understand it, that the trial court had no discretion to give such effect to its previous order or that it was an abuse of discretion to do so.

The order appealed from ruled that the continuance order should not have been granted because of a defect in procedure occasioned by plaintiff himself. The court’s order implied that a continuance would not have been given had the court realized that the opponent was not notified of the request and had no opportunity to object to a further delay of the already six-year-old lawsuit which had been inactive for four years.

The failure to give such an opportunity lies totally at plaintiff’s doorstep. The injustice feared for him is entirely of his own making. But as Presiding Judge Banke points to, what about the injustice rendered the defendant, who was not informed of any activity in the case during a period in excess of five years, and who is faced now with defending against a claim arising out of a business transaction which occurred over ten years ago?

Decided July 13, 1987

Rehearing denied July 30, 1987

Don E. Snow, for appellant.

Ronald Barfield, David B. Dunaway, for appellee.

Even if the court below had discretion to give effect to plaintiff’s ex parte continuance order, the decision not to do so does not amount to an abuse as a matter of law.

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


text:
    74012.
    GEORGIA MARBLE COMPANY v. WARREN et al.
    (360 SE2d 286)
   Beasley, Judge.

We granted defendant Georgia Marble Company an interlocutory appeal from denial of its motion for summary judgment in a suit for damages for injuries and loss of consortium. The action arose when Roger Warren dived into a creek at Whitestone Park, an area which had been leased to Georgia Marble since 1959 and which the company for years had opened to public use for recreational purposes. Wilful and/or malicious failure to guard or warn of the dangerous condition in the creek, as well as negligence, was alleged.

The company argues that the trial court erroneously failed to apply, or erroneously applied, the Recreational Property Act (RPA), OCGA § 51-3-20 et seq., and thus deprived it of its statutory exclusion from liability as an “owner” (OCGA § 51-3-21 (3)) of land provided to the public for recreational purposes under the Act. It also argues that the court erroneously denied summary judgment under the traditional owner-occupier statute, OCGA § 51-3-1, as it maintains it had no duty to remedy a natural condition in the terrain.

The trial court’s order is silent as to the rationale for denying summary judgment, i.e., application of the RPA, or OCGA § 51-3-1, or both. Consideration of the RPA is dispositive.

1. The parties do not dispute the applicability of the RPA. See Cedeno v. Lockwood, Inc., 250 Ga. 799, 801 (2) (301 SE2d 265) (1983). In order to recover under the RPA from Georgia Marble, which did not charge a fee, see OCGA § 51-3-23, plaintiffs must show a wilful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity. OCGA § 51-3-25 (1).

We measure the plaintiffs’ burden by the four-part test which was set out in McGruder v. Ga. Power Co., 126 Ga. App. 562, 563 (1) (191 SE2d 305) (1972), rev’d on other grounds 229 Ga. 811 (194 SE2d 440) (1972). Although the test was turned into dicta by the Supreme Court’s ruling that the RPA was not applicable in that case, it is sound and is adopted here. As in McGruder, there is no question of malice, so the question is whether Georgia Marble has excluded even every reasonable inference of wilful failure to guard or warn. “[A] wilful failure to guard or warn would require actual knowledge of the owner that its property is being used for recreational purposes; that a condition exists involving an unreasonable risk of death or serious bodily harm; that the condition is not apparent to those using the property; and that having this knowledge, the owner chooses not to guard or warn, in disregard of the possible consequences. This test excludes either constructive knowledge or a duty to inspect.”

Plaintiffs allege that the failure was in posting no signs at the park warning the public about diving or jumping into the stream from the adjacent rock formation, in failing to erect barriers to prevent or at least discourage such diving or jumping, and in failing to investigate the safety of swimming in, jumping into, and diving into the stream.

We construe the evidence most strongly against movant Georgia Marble and give respondent plaintiffs the benefit of all reasonable doubts and all favorable inferences that can be drawn from the evidence. Jacobsen v. Muller, 181 Ga. App. 382, 384 (4) (352 SE2d 604) (1986). The record shows that Warren went to Whitestone Park in July 1982 to spend the afternoon. A mountain stream with natural rock formations beneath the surface of the water runs adjacent to the park and is part of the property leased by Georgia Marble. Warren was seriously injured when he dived head first off the topmost rock outcropping alongside the creek, approximately nine feet above the water line, and struck his head on a rock in the creek. Warren was familiar with the creek and with this particular “swimming hole.” He had gone swimming in the creek at various times all during his life, gone diving in it, and knew it to be a typical mountain stream, rocky in places, which remained unchanged by Georgia Marble. He did not know what his head struck nor could he see any rocks in the water from the side of the stream.

As to the four factors, Georgia Marble concedes that it had actual knowledge that people used its property recreationally. In fact, it posted a sign indicating this to be its intent: “This Park is maintained by the Whitestone Division of Georgia Marble Company for the people of this community. Please help us to keep it clean. Thank you. We take pride.” However, the evidence negatives at least the third factor.

Decided July 14, 1987

Rehearing denied July 30, 1987.

John D. Jones, Margaret L. Milroy, for appellant.

Paul M. Hawkins, William H. Major III, for appellees.

Photographs of the stream illustrate that even a first time visitor to the stream would perceive that the stream’s bed was or at least was likely to be rocky. Even if we accept as conclusive (since it is disputed) the absence of a years-earlier sign, “Danger, Swim At Your Own Risk,” it would not show that the rocky condition of the stream was not as apparent to those using it as to Georgia Marble. The rocky condition of the terrain in and about the stream was open and obvious. This was true even more so as to Warren, who was not a first time visitor nor a first time swimmer or diver into the stream. He knew as much as, if not more than, Georgia Marble did about that spot. Thus, the evidence is conclusive against Warren, who cannot show “that the condition is not apparent to those using the property.” This difliers significantly from the concealed and unnatural, inherently dangerous objects in North v. Toco Hills, Inc., 160 Ga. App. 116 (286 SE2d 346) (1981).

The evidence on summary judgment, as a matter of law, shows an absence of wilful failure to guard or warn on the part of Georgia Marble. McGruder v. Ga. Power Co., supra. It was thus protected from liability for Warren’s injuries by the RPA and consequently it was entitled to summary judgment.

2. In light of the analysis in Division 1, traditional notions of liability to licensees under OCGA § 51-3-1 need not be reached.

Judgment reversed.

McMurray, P. J., and Sognier, J., concur.


author: Carley, Judge. Benham, Judge,

text:
    74014.
    HENDERSON et al. v. MARTIN BURKS CHEVROLET, INC.
    (360 SE2d 430)
   Carley, Judge.

Appellant-plaintiffs brought suit, alleging that their purchase of a pickup truck had been fraudulently induced by misrepresentations made by the agents of appellee-defendant. At trial, appellee moved for a directed verdict on the ground that appellants had shown no evidence of fraud. Although appellee’s motion was granted as to the fraud issue, the trial court submitted the case to the jury on a theory of partial failure of consideration. The jury returned a verdict in appellants’ favor. The trial court subsequently granted appellee’s motion for judgment n.o.v. Appellants appeal from the grant of appel-lee’s motions for directed verdict and for judgment n.o.v.

The facts, viewed in a light most favorable to appellants, are as follows: The truck that appellants purchased from appellee had been used as a demonstrator and had been driven almost 6,000 miles. At the time of the purchase, appellants were fully aware of this fact, and because of it they received a reduction in the price of the truck. Appellants had been told by appellee’s salesman that the truck was still “new” and had been used only as a demonstrator. Appellants inspected the truck before they bought it and noticed nothing unusual. Although aware of the truck’s prior use, appellants never asked if it had ever been damaged and had undergone repairs. After they bought the truck, appellants noticed that the paint on the right front fender did not precisely match the paint on the remainder of the truck. Only then did they ask appellee’s salesman if the truck had ever been “wrecked.” He assured them that it had not been. Appellants had several problems with the truck. When they brought the truck back to appellee to have these problems repaired, they asked again if the truck had been “wrecked.” Again, they were told that it had not been. After these repairs were completed, the problems remained. Appellants contacted the manufacturer of the truck. At that time, appellee did acknowledge that the truck had been damaged. Appellants refused appellee’s offer to repair the truck and brought the instant action.

1. Appellants contend that they were defrauded by the representations of appellee’s agents that the truck was “new” when, in fact, it had previously been damaged and repaired. Appellants rely for their definition of “new” on Horne v. Claude Ray Ford Sales, 162 Ga. App. 329 (1) (290 SE2d 497) (1982), which stated that “[i]t may be considered an intrinsic quality of a car sold as new that it has been neither damaged nor used to any significant extent. [Cits.]” However, the car at issue in Horne was sold as “new” in the sense of never having been significantly driven. That car, which had had no substantial prior use, could reasonably be expected not to have sustained significant damage. See also Macon Chrysler-Plymouth v. Sentell, 179 Ga. App. 754 (347 SE2d 639) (1986).

It is clear that the truck purchased by appellants was not “new” in the sense in which the word is employed in Horne, supra. It is also clear that the truck was never represented to be “new” in that sense. It is undisputed that the truck had been driven 5,979 miles as a demonstrator and that appellants were aware of this when they bought it. Because the truck had not been owned previously, it was titled as a “new” rather than “used” vehicle. See generally Gem City Motors v. Minton, 109 Ga. App. 842, 846 (2) (137 SE2d 522) (1964). In exchange for a bargain price, appellants acquired a truck which had been driven almost 6,000 miles but which was nevertheless “new” because the mileage was the result of its use only as a demonstrator. Given their knowledge of the truck’s prior use and, consequently, of the potential for its having been damaged as the result of that use, appellants cannot urge the same fraudulent employment of the word “new” as could the purchasers in Horne, supra. Cf. Gen. Motors Corp. v. Green, 173 Ga. App. 188 (1) (325 SE2d 794) (1984).

Appellants cite no authority, and we are aware of none, which would require the seller of a vehicle which has been used so extensively to gratuitously inform the purchaser of all repairs which may have been done on the vehicle as the result of such use. Appellants did not inquire about the existence of any previous damage until after they had purchased the truck for a discount based upon its prior use as a demonstrator. Appellee’s responses to those after-the-fact inquiries obviously cannot support a claim of fraudulent inducement to buy the truck. See Strother Ford v. Bullock, 142 Ga. App. 843, 844-845 (1) (237 SE2d 208) (1977). The truck at issue in this case was precisely what it was represented to be at the time of purchase: a truck which had not been owned previously but which had already been used extensively as a demonstrator. Compare Bill Spreen Toyota v. Jenquin, 163 Ga. App. 855 (294 SE2d 533) (1982); Horne v. Claude Ray Ford Sales, supra; Macon Chrysler-Plymouth v. Sentell, supra; and Rustin Oldsmobile v. Kendricks, 123 Ga. App. 679 (182 SE2d 178) (1971). The trial court did not err in granting a directed verdict, there being no evidence of appellee’s fraud.

2. Fraud was the sole cause of action relied upon by appellants. There being no evidence of fraud, there was nothing for the jury to consider. The trial court having erred in submitting the case to the jury, the judgment n.o.v. in appellee’s favor was correct.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., Banke P. J., Sognier and Beasley, JJ., concur. McMurray, P. J., Pope, and Ben-ham, JJ., dissent.

Benham, Judge,

dissenting.

I disagree with the majority’s affirmance of the trial court’s grant of appellee’s motions for directed verdict and for judgment n.o.v. The majority concludes that the vehicle purchased by appellants was not “new” as that term is defined in Horne v. Claude Ray Ford Sales, 162 Ga. App. 329 (290 SE2d 497) (1982). Because I believe the question is one best left for resolution by a jury, I must dissent.

The pickup truck purchased by appellants from appellee was represented to them as being “new.” The retail installment contract described the truck as “new”; it was displayed on the lot with other new trucks; the salesman told them it was a new truck and they would be “extended all the courtesies” of purchasing a new truck; and a “new car warranty” of 12 months/12,000 miles accompanied the vehicle. In Horne, supra at 329, this court stated that “an intrinsic quality” of a car sold as “new” is “that it has been neither damaged nor used to any significant extent. [Cits.]” (Emphasis supplied.) In focusing on appellants’ awareness of the truck’s status as a “demonstrator” and its odometer reading of 5,979 miles, the majority has disregarded lack of damage as an integral part of the “intrinsic quality” of being a “new” vehicle. Instead, the majority concludes that given their knowledge of the mileage recorded and the demonstrator status, appellants, as a matter of law, knew the potential for the truck having been damaged and, implicitly, that they should have had a reasonable expectation that it had been damaged. In Paces Ferry Dodge v. Thomas, 174 Ga. App. 642 (331 SE2d 4) (1985), this court upheld a judgment based upon a jury verdict that a car dealership had committed an unfair or deceptive act by representing as new a vehicle that had a broken rear end alignment pin. Because I believe the question of whether the vehicle is “new” is one of fact and, consequently, should have been submitted to the jury (see Century Dodge v. Mobley, 155 Ga. App. 712, 713 (272 SE2d 502) (1980)), I dissent from the majority’s affirmance of the trial court’s actions.

Decided July 14, 1987

Rehearing denied July 30, 1987

E. Christopher Harvey, Jr., Alan C. Harvey, for appellants.

Albert B. Wallace, for appellee.

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


text:
    74079.
    CONNELL et al. v. LANE.
    (360 SE2d 433)
   Beasley, Judge.

Mr. and Mrs. Connell appeal from the grant of summary judgment to defendant Lane in their suit for medical negligence and loss of consortium. The trial court concluded that the action was barred by the applicable statute of limitation, OCGA § 9-3-71, and that plaintiffs’ expert affidavits were insufficient under Bushey v. Atlanta Emergency Group, 179 Ga. App. 827 (348 SE2d 98) (1986).

Since we hold that the affidavits were legally lacking, we reach only that question, as it is dispositive.

Plaintiffs alleged that Dr. Lane, a urologist, was negligent in his treatment of Mrs. Connell for kidney and bladder problems. His negligence constituting medical malpractice, they claim, related to his prescribing for pain control the use of Talwin. Specifically, the acts of negligence were in prescribing it for self-injection without advising plaintiffs of certain potential harmful side effects, namely, abscesses at the sites of injections, addiction, and depression; and prescribing it without advising of its proper use with respect to quantity, frequency, duration, and method of injection, all of which related to the harmful side effects. After using Talwin for about four years, Mrs. Connell developed these side effects, which were then treated by other physicians.

Dr. Lane submitted his affidavit in support of his motion for summary judgment, outlining his professional background and expertise in urology. He described his treatment with respect to the use of Talwin as pain medication. He also set forth his opinion that it was a proper prescription for the pain problem, that he properly instructed her on how to inject it, that he properly instructed her to stop using Talwin and referred her to physicians qualified to treat the side effects when they were brought to his attention, that any problems she suffered as a result of the injections of Talwin were not the result of anything he did or did not do. He concluded his opinion by stating that in all of his treatment of Mrs. Connell, he “exercised that degree of care, skill and diligence generally employed by the medical profession under the same conditions and like surrounding circumstances.”

Dr. Lane also submitted the affidavit of another physician, who gave his opinion that Dr. Lane properly consulted him for the treatment of Mrs. Connell’s abscesses, which treatment he then undertook.

In response to the motion, plaintiffs submitted Mrs. Connell’s affidavit and two affidavits from physicians to counter Dr. Lane’s expert opinion. Except for the recitations of medical qualifications, the two affidavits are identical. Both doctors swore that they had examined the certified records of Dr. Lane and the hospital relating to Mrs. Connell’s treatment and that in the opinion of each, Dr. Lane “failed to exercise the proper and reasonable degree of care and skill employed by the medical profession generally under similar conditions and like circumstances during [her] treatment. . . .”

These two affidavits failed to create a genuine issue of material fact. The opinions are conclusory only.

They fail to set out in what regards Dr. Lane was negligent. The particulars of negligence must be set out in order to counter the defendant’s expert opinion. One, the counteraffidavit must establish “the parameters of acceptable professional conduct.” Beauchamp v. Wallace, 180 Ga. App. 554, 555 (349 SE2d 791) (1986). Two, the affidavits must set forth specific facts as the basis for reaching the conclusion that treatment did not meet the standard of care. Bushey v. Atlanta Emergency Group, 179 Ga. App. 827, supra.

Decided July 14, 1987

Rehearing denied July 30, 1987.

Ben B. Mills, Jr., for appellants.

G. Stuart Watson, for appellee.

Without these supports, the conclusion collapses and thus fails to raise a genuine issue for trial; summary judgment results. OCGA § 9-11-56; Loving v. Nash, 182 Ga. App. 253, 255 (1) (355 SE2d 448) (1987).

Appellee cites a second reason, but we find no support for it. Dr. Lane maintains that plaintiffs’ expert affidavits were deficient also in that they werev not based on the total relevant medical records of Mrs. Connell from the hospital, as demonstrated by the submission of additional records by defendant.

It is true that the records upon which the opinion is based must be attached to the affidavit or appear somewhere in the record and be referred to in the affidavit. OCGA § 9-11-56 (e); Hayes v. Murray, 252 Ga. 529, 530 (314 SE2d 885) (1984); McClure v. Clayton County Hosp. Auth., 176 Ga. App. 414, 417 (2) (336 SE2d 268) (1985); cf. Bush v. Legum, 176 Ga. App. 395 (1) (336 SE2d 284) (1985). That was done here.

That the affidavits were not based on the complete records of Mrs. Connell, or even on all of the salient records, does not render the affidavits fatally deficient, however. It would merely make the opinion subject to impeachment on cross-examination at trial, thus affecting the weight of the opinion rather than its admissibility. It is analogous to the hypothetical question which is not based on the full and complete facts. Davis v. State, 153 Ga. 669, 675 (8) (113 SE 11) (1922); Dix v. State, 238 Ga. 209, 212 (232 SE2d 47) (1977). See also Green, Ga. Law of Evidence, 2d ed., § 111, p. 187.

On summary judgment all inferences, all ambiguities, and all doubts, are resolved against the movant and in favor of the party opposing the motion, here the plaintiffs. Jones v. Rodzewicz, 165 Ga. App. 635, 637 (4) (302 SE2d 402) (1983). Consequently, this second reason falls. The first, however, carries the day.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur in the judgment only.


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

text:
    74139.
    CHAMBERS v. THE STATE.
    (360 SE2d 438)
   Deen, Presiding Judge.

Larry Chambers appeals from a jury verdict of guilty of the offense of cruelty to a child. Chambers was the live-in boyfriend of Delores King, who had a three-year-old daughter named Brandy. Chambers came home one evening and found Brandy had been playing outside the house and was “dirty.” He took her into the bedroom and Ms. King heard Brandy crying. When she arrived at the bedroom door, she saw Chambers holding Brandy on the bed with his knee in her back and whipping her with a belt. She saw him strike Brandy “three or four” times. The State introduced photographs of Brandy showing bruises on her buttocks and legs caused by the belt. Ms. King testified that later that same day, Chambers bit Brandy on the lips. He told Ms. King it would make the child “tough.”

Ms. King had Brandy examined by Dr. Rose Barland, a pediatrician. Dr. Barland found bruises on Brandy’s buttocks and arms. She asked the child who did this to her. Brandy told her it was “her mom’s boyfriend.” Her notes did not reflect any bite marks. Katie Connell, sister of Ms. King, visited her and saw that Brandy had belt marks on her arms and face and asked Ms. King if she beat the child. Ms. King said that she had. In the presence of Chambers, “Brandy said, ‘No mama, you didn’t do it. Larry [Chambers] done it [sic].’ ” Chambers “never said a word. He just hung his head.” Ms. Connell saw “that place [Chambers] bit [Brandy] on the lip.” Diane Jones, another sister of Ms. King, visited King and asked Brandy about “those bite marks” and “she said Larry had bit her [sic].”

Chambers admitted that he had disciplined the child, but that he did so at the request of the mother. He also admitted that he and Ms. King took the child to Florida after Ms. King’s sisters had seen the results of his disciplining the child. After Ms. King called her family from Florida to let them know where she was, they returned to Georgia. After Ms. King and Brandy returned to Georgia, Chambers went to Louisiana for approximately one month. Held:

1. The trial court began its charge to the jury by advising that “the State, in this bill of indictment, accuses Larry Chambers with the offense of cruelty to a child on the date and under the circumstances set forth in this indictment.” The indictment, which went out with the jury during its deliberations, accused Chambers of maliciously causing “cruel physical and mental pain by beating her with a belt and biting her.” The trial court’s subsequent definition of cruelty to children as maliciously causing “a child under the age of eighteen cruel or excessive physical or mental pain” could not have confused or misled the jury from its assigned task of deciding whether Chambers had committed the offense of cruelty to children as charged in the indictment, viz., by maliciously causing cruel (as opposed to excessive) physical or mental pain. Chambers’s contention that the trial court failed to confine the consideration of the jury to the manner of commission of the offense as alleged in the indictment, accordingly, is without merit.

2. Chambers also contends that the trial court erred in admitting the testimony of a state witness concerning a statement made to her by Ms. King in the presence of Chambers. Virginia Morris, a sister of Ms. King, was permitted to testify, over objection, to a telephone conversation she had with Ms. King while the latter was in Florida. Morris testified that Chambers was “standing beside” Ms. King when King denied inflicting these injuries to her daughter.

We find no reversible error for a number of reasons. First, the statement made by Ms. King was made in the presence of Chambers. “A witness may testify as to what he saw and heard in the defendant’s presence.” Moore v. State, 240 Ga. 210, 212 (240 SE2d 68); accord Grindle v. State, 151 Ga. App. 164 (2) (259 SE2d 166); Broome v. State, 141 Ga. App. 538 (2) (233 SE2d 883). Secondly, this same evidence was testified to by Ms. King when she was a witness. Where the same evidence is admitted elsewhere, without objection, the objection is properly overruled. Tucker v. Mappin, 149 Ga. App. 847, 848 (256 SE2d 135). Last, but by no means the least, the declarant of the alleged hearsay was subsequently called as a witness to testify as to the subject matter discussed in the telephone conversation and appellant was afforded confrontation and cross-examination. See generally Green, Ga. Law of Evidence 497, 502, §§ 221, 224.

Judgment affirmed.

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

Beasley, Judge,

concurring specially.

I concur.

According to the statute, the crime of “cruelty to children” can be committed in one of two ways: “(a) . . . wilfully depriving] the child of necessary sustenance to the extent that the child’s health or well-being is jeopardized,” or “(b) . . . maliciously causfing] a child under the age of 18 cruel or excessive physical or mental pain.” These are the two methods or manners of treating children which are deemed criminal.

It is the second method, maliciously causing pain, which is charged here. The words “cruel,” “excessive,” “physical,” and “mental” are adjectives, used by the legislature to describe the type of pain which when maliciously inflicted on a child constitutes criminal behavior. They provide a definition. See Allen v. State, 174 Ga. App. 206, 208 (3) (329 SE2d 586) (1985).

These words are not different methods. “Method” is a noun, not an adjective. Methods are the means by which some end result is accomplished. It is a procedure or process, a way or manner of doing something. Webster’s New Intl. Dictionary, 2nd ed.

For example, a person commits the crime of theft by shoplifting in one of five ways, i.e., when he “conceals, or takes possession,” or “alters,” or “transfers,” or “interchanges,” or “wrongfully causes.” OCGA § 16-8-14. See Nesmith v. State, 183 Ga. App. 529 (359 SE2d 421) (1987). This statutory scheme of prohibiting certain acts which are expressly described by their various methods, that is, by how they are committed, prevents the prohibition from being vague. Davis v. State, 234 Ga. 730, 733 (6) (218 SE2d 20) (1975). See Wilson v. State, 245 Ga. 49, 53 (262 SE2d 810) (1980).

So it is in this case. Defendant was charged in the indictment, and in the court’s charge, with committing cruelty to children. How? By maliciously causing a certain type of pain, pain described as “cruel” and as “physical” and “mental.” It is, according to the statute, only “cruel” pain, or “excessive” pain, which is criminal. If “cruel” pain is not always “excessive” pain, it is difficult to detect a difference in this case.

If anything, the court’s charge, which included the adjective “excessive” in reading the statute, added a burden to the state’s side. The concept of excessiveness, which relates to the degree of pain, was injected although the state had not assumed that further burden. If the jury truly noticed it, focused as they were on the words in the indictment, it benefited rather than harmed defendant.

Birdsong, Chief Judge,

dissenting.

I respectfully dissent from Division 1 and the judgment of this Court. The appellant contends the trial court erred “in not limiting the consideration of the jury to the allegations of the indictment by appropriate remedial instructions in response to the inquiry by the jury.” (Emphasis supplied.) This issue is not addressed by the majority.

Appellant was indicted upon a charge of maliciously causing “a child under the age of 18, cruel physical and mental pain by beating her with a belt and biting her.” (Emphasis supplied.) The trial court did not read the indictment to the jury but merely referred to the offense “under the circumstances set forth in this indictment” and proceeded to charge the jury that “any person commits the offense of cruelty to children when he maliciously causes a child under the age of eighteen cruel or excessive physical or mental pain.” (Emphasis supplied.) After entering closed session and deliberations, the jury requested additional instructions from the court, by asking: “Judge, we have been discussing this indictment and we want to know do we find guilty or not guilty on this indictment word for word, exactly the way it is written. There has been some question as to the evidence that has been presented ... do we vote on this indictment word for word[?]” The trial court recharged the jury: “I will read to you the definition of the crime of cruelty to children. A person commits the offense of cruelty to children when he maliciously causes a child under the age of eighteen cruel or excessive physical or mental pain. That is the extent of the Court’s response to your inquiry.” (Emphasis supplied.) Appellant’s counsel objected to the recharge on two bases: (1) it had “the effect of giving the jury a message that they could find [Chambers] guilty on something less than what was charged in the indictment . . .” and (2) in the recharge the court “included the language of ‘excessive or’ . . . that is not charged in the indictment.”

The issue presented by the indictment, the charge, the objection and the enumerated error is: Where a statute defines a crime as capable of commission in any one of several ways, and the indictment alleges the offense was committed in one specific way, and the court charges the jury the offense is committed by “any person” when he commits any of the several acts, and the defendant’s counsel directs the Court’s attention to the addition of language not alleged in the indictment and the trial court refuses to restrict the method of commission of the offense to that alleged in the indictment, is this reversible error? In a whole court case, Walker v. State, 146 Ga. App. 237 (246 SE2d 206), we held that it was. Our Supreme Court, in Lumpkin v. State, 249 Ga. 834, 836 (295 SE2d 86), analyzed Walker and found: “The court there correctly held that where no remedial instructions were given, the charge was erroneous as a matter of law because of a fatal variance between the proof at trial and the indictment returned by the grand jury.”

This is not a new or a novel concept and Walker charted no course different from that stated by the United States Supreme Court many times in the past. Basic due process is at issue. Is an accused entitled to be tried on the charge made by the indictment, or can he be convicted in conformity to a charge by the trial court of differing methods of commission of the offense charged?

Our Code, OCGA § 16-5-70, provides, inter alia, that the offense of cruelty to children is committed when a person “maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” (Emphasis supplied.) Thus, the legislature delineated nine alternative ways in which this offense could be committed: (1) cruel physical pain, (2) excessive physical pain, (3) cruel mental pain, (4) excessive mental pain, (5) cruel physical and mental pain, (6) excessive physical and mental pain, (7) cruel and excessive physical pain, (8) cruel and excessive mental pain, or (9) cruel and excessive physical and mental pain. The state elected to indict Chambers with the fifth method, i.e., “cruel physical and mental pain.” Hence, this particular method of commission of this oifense had to be proved and “[a] trial judge in a criminal case should deliver a charge tailored to the indictment and adjusted to the evidence.” State v. Braddy, 254 Ga. 366, 368 (330 SE2d 338). The charge in the instant case was not “tailored to the indictment,” but permitted conviction upon proof of any one of the nine different methods of commission of the offense.

“In Walker, supra, we emphasized that a charge can be misleading to a jury ‘where it gives several definitions of the offense for which [an] accused is being tried.’ [Cit.] ‘It is reversible error for the court to submit a case to the jury upon a theory entirely different from that claimed in the [indictment].’ [Cits.] Even our earlier Georgia cases required ‘ “[i]f the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance.” Gaines v. State, 177 Ga. App. 795, 797 (341 SE2d 252); accord Sarnie v. State, 247 Ga. 414, 415 (276 SE2d 589). “Conviction upon a charge not made [in the indictment] would be sheer denial of due process.” DeJonge v. Oregon, 299 U. S. 353, 362 (57 SC 255, 81 LE 278). Hence, it is reversible error to deprive a defendant of the right “to be tried for a felony only on charges presented in an indictment returned by a grand jury.” Stirone v. United States, 361 U. S. 212 (b) (80 SC 270, 4 LE2d 252). “It is axiomatic that a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process.” Jackson v. Virginia, 443 U. S. 307, 314 (99 SC 2781, 61 LE2d 560) (1979).

The U. S. Supreme Court faced this same problem in 1905 in Clyatt v. United States, 197 U. S. 207 (25 SC 429, 49 LE 726), in which a Georgia man was convicted of “peonage,” i.e., involuntary servitude. The Supreme Court cited the statute which defined “peonage” as being committed when any person “holds, arrests, returns, or causes to be held, arrested, or returned . . . any person to a condition of peonage.” Id. at 208. The indictment charged the defendant did “knowingly return one Will Gordon and one Mose Ridley to a condition of peonage” in the State of Georgia from the State of Florida. However, the evidence showed that neither Gordon nor Ridley had ever been held in peonage prior to the defendant bringing them to Georgia. The Court held: “It was essential, therefore, under the charge in this case to show that Gordon and Ridley had been in a condition of peonage, to which, by the act of the defendant, they were returned. We are not at liberty to transform this indictment into one charging that the defendant held them in a condition or state of peonage, or that he arrested them with a view of placing them in such condition or state. The pleader has seen fit to charge a return to a condition of peonage. The defendant had a right to rely upon that as the charge, and to either offer testimony to show that Gordon and Ridley had never been in a condition of peonage or to rest upon the Government’s omission of proof of that fact.” 197 U. S. at 219-220. The conviction was reversed. The rule is as old as it is sound. If you indict an accused as having committed an offense in a specified way, the evidence and the charge to the jury must conform to the indictment or a fatal variance results. McCrary v. State, 252 Ga. 521, 525 (314 SE2d 662); DeFrancis v. Manning, 246 Ga. 307 (271 SE2d 209); DePalma v. State, 225 Ga. 465 (3) (169 SE2d 801); Evans v. State, 138 Ga. App. 620, 621 (227 SE2d 448); Royal v. State, 134 Ga. App. 203 (213 SE2d 561); Hancock v. State, 127 Ga. App. 21, 22 (192 SE2d 435). The state elected to indict the defendant as having committed this offense by “cruel physical and mental pain” and is bound by its election. Griffin v. State, 168 Ga. App. 696, 699 (310 SE2d 278).

Of course, it is well established that a charge of a code section in its entirety is not error where a part thereof is applicable, if it does not appear that the inapplicable part misled the jury. Searcy v. State, 168 Ga. App. 233 (1) (308 SE2d 621). However, where the statute charged as being violated defines a crime which can be committed in any one of several ways, but the indictment charges the offense as being committed in one specific way, then the charge of the entire code section — which would permit the jury to consider the offense as being committed in any one of the several methods, cannot be said as a matter of law not to have misled the jury. Searcy, supra; Walker, supra at 244. And, in the instant case, this is exactly what happened. The jury was misled and confused, by the conflict between the indictment and the charge and requested clarifying instructions from the court on this issue by asking: “[D]o we find guilty or not guilty on this indictment word for word, exactly the way it is written[?]” The only logical reason for requesting clarification was to resolve the conflict. In essence they were asking: Must “we find guilty or not guilty on this indictment word for word” the way it is charged, or can we follow the court’s charge that this offense is committed when any person “causes a child under the age of eighteen cruel or excessive physical or mental pain.” The court could have cured its error by restricting its charge on the entire code section, to the method charged in the indictment. Owens v. State, 173 Ga. App. 309, 312 (326 SE2d 509). Rather than curing the error pointed out to the court by counsel, it compounded the error by assuring the jury it could properly reach a finding of guilty if it found any one of the nine different methods. This is the error enumerated by counsel, i.e., the court “erred in not limiting the consideration of the jury to the allegations of the indictment by appropriate remedial instructions in response to the inquiry by the jury” as required by Owens, supra. No such limiting or remedial instruction was given in the instant case. The procedure approved by the majority has been condemned by this Court (Gaines, supra; Owens, supra; Hack v. State, 168 Ga. App. 927 (3) (311 SE2d 211); Griffin, supra; Cantrell v. State, 162 Ga. App. 42, 43 (290 SE2d 140); Robinson v. State, 152 GA. App. 296, 297 (262 SE2d 577); Reed v. State, 148 Ga. App. 264 (251 SE2d 148); Walker, supra); the Georgia Supreme Court (Lumpkin, supra; Sarnie, supra); and the United States Supreme Court (DeJonge, supra; Stirone, supra; Clyatt, supra).

Decided July 15, 1987

Rehearing denied July 30, 1987

Paul Fryer, for appellant.

J. Brown Moseley, District Attorney, for appellee.

Reversal is required.

I respectfully dissent. I am authorized to state that Judge Sognier, Judge Pope and Judge Benham join in this dissent.

       Although Davis construed the predecessor statute, Code § 26-2801, the words are the same in the current version.


text:
    74249.
    CANAL INSURANCE COMPANY v. HENDERSON.
    (360 SE2d 435)
   Beasley, Judge.

Canal was the carrier of PIP coverage on the automobile driven by Henderson. It appeals from the judgment based on a jury verdict for $10,000, contending that it was entitled as a matter of law to prevail on the issues of statutory penalty and attorney fees (OCGA § 33-34-6 (b)) and punitive damages (OCGA § 33-34-6 (c)). Its motion for directed verdict had been denied and these issues submitted to the jury, all of which Canal enumerates as error.

Seventeen-year-old Henderson was injured when the car he was driving was rear-ended by another car on April 28, 1985. Henderson’s car was damaged in that the rear view mirror was knocked off, the license plate was bent, and after the car was driven to Henderson’s home the universal joint fell out, necessitating the drive shaft’s replacement. Although Henderson reported no physical injury to the investigating officer at the time of the collision, his father took him to the emergency room later that day. There he was examined and x-rayed. The treating physician diagnosed muscle spasms of the neck based partly on the objective x-ray finding of a straightened lordotic curve, prescribed muscle relaxers and pain pills, and advised that the injury would take some weeks to heal.

Henderson’s lower back began to hurt about one week after the accident and continued to hurt on and off thereafter. His work emptying garbage cans at a restaurant brought pain following the collision. Henderson obtained no further medical care until August 20, 1985, when he was taken to chiropractor Dr. Overstreet. Repeated treatment from Dr. Overstreet through November totalled $1,586. It is this treatment which Canal contested.

Canal was sent initial notice of the claim by Henderson’s attorney on September 6, 1985, along with a copy of Dr. Overstreet’s initial bill. Plaintiff relies, however, on the PIP form which was sent on November 25 and received by Canal about December 2, as its notice for purposes of OCGA § 33-34-6. This form included with it copies of the hospital bill, radiologist’s bill, and pharmacy bill for the initial treatment. By this time Canal had also received copies of all of Dr. Over-street’s bills, reflecting the last treatment administered on November 8. Upon receipt of the September notice, Canal retained Mobley, an independent adjuster, to investigate the claim. He testified that he was suspicious of the entire claim from the beginning because of the time lapse between the accident and the chiropractic care, and because he thought that the claim was being unnecessarily inflated by chiropractic visits. He also suspected, although there was no proof of it, that Henderson had been sent to the chiropractor by an attorney to build his claim.

After interviewing Henderson at his attorney’s office in October, Mobley arranged an independent medical exam by an orthopedist. It was conducted on November 4, 1985, and the orthopedist issued a report to Canal that same day stating: “. . . I feel that this young man may well have had an acute flexion/extension injury of his neck with some temporary residual, but I feel all of this has now cleared.” The doctor also testified by deposition that he was not familiar with the practice of spinal manipulation, but did express his opinion that manipulating this type of injury was not advisable. He also testified that he did not feel that the lower back pain was attributable to the accident.

1. The sole issue is whether Canal had proved as a matter of law that its failure or refusal to pay the chiropractic bills and late payment of the other bills was in good faith, that is, that its reasons were legally justified so as to shield it from the penalty, attorney fees, and punitive damages sought pursuant to OCGA § 33-34-6. A directed verdict is appropriate only if there is no conflict in the evidence as to any material issue and the evidence, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50 (a); Marriott Corp. v. American Academy of Psychotherapists, 157 Ga. App. 497, 498 (1) (277 SE2d 785) (1981).

Upon making the motion, defendant’s counsel referred the court to its claim file, which had been placed in evidence by stipulation. That file contained the PIP form submitted by Henderson and received by Mobley on behalf of Canal by at least December 2, along with the bills incurred on the April 28 emergency room visit. The claim file reflects that the check in payment of these bills was not forwarded to Henderson’s attorney by Mobley until January 9, 1986, beyond the thirty days mandated by OCGA § 33-34-6 (b). While Canal contended that it had not received “reasonable proof” that the medical treatment was necessary and resulted from the accident (in fact, Mobley testified at the trial that he still was of the opinion that the emergency room visit was unnecessary), this is not the standard. “[T]he date on which an insurer should be deemed to have received ‘reasonable proof of the fact and the amount of loss sustained’ by its insured is that date upon which the insurer receives sufficient proof from the insured to enable the insurer to verify or disprove, through the exercise of reasonable diligence, the basic components of the insured’s claim.” (Emphasis in original.) Jones v. State Farm Mut. Auto. Ins., 156 Ga. App. 230, 235 (274 SE2d 623) (1980), overruled on other grounds, Atlanta Cas. Co. v. Flewellen, 164 Ga. App. 885 (300 SE2d 166) (1982). Copies of medical bills are such proof. Jones, supra.

This untimely payment alone was reason for the court’s denial of the motion for directed verdict as to the 25 percent penalty and attorney fees, since an insured is entitled to penalties and damages under OCGA § 33-34-6 (b) and (c) based solely on a late payment. Lawson v. State Farm Mut. Auto. Ins. Co., 256 Ga. 285 (347 SE2d 565) (1986); Atlanta Cas. Co. v. Jones, 247 Ga. 238, 241 (4) (275 SE2d 328) (1981). The burden of showing good faith for a refusal to timely pay is on the insurer. Binns v. MARTA, 250 Ga. 847 (301 SE2d 877) (1983). No reason for the untimely payment of the April 28 bills was put forward, except for Mobley’s belief that no treatment was necessary. In ruling on the trial court’s denial of the motions for directed verdict, if there is any evidence in the record before that court which supports that denial, we are to uphold it. Hartford Fire Ins. Co. v. Rowland, 181 Ga. App. 213, 216 (2) (351 SE2d 650) (1986). Binns v. MARTA, 168 Ga. App. 261, 263 (2) (308 SE2d 674) (1983). Here, the merely subjective and unsupported belief of Mobley that Henderson was entitled to no payment is that evidence. See Binns, supra at 264.

The denial of the motions for directed verdict as to 25 percent penalty and attorney fees was not error.

In considering whether Canal was entitled to a directed verdict on the question of punitive damages under OCGA § 33-34-6 (c), only the failure to pay the chiropractic bill will support the court’s ruling, since the emergency room bills were paid within sixty days. We are bound by the any evidence standard, as was the trial court at the time the issue was presented to it. Binns v. MARTA, supra at 263. The insurer had received the “reasonable proof’ or, as used in OCGA § 33-34-6 (c), “proper proof’ of loss from the insured at least by November 25. Prior to that, the insured and his father had been interviewed by the adjuster and Henderson had undergone the independent medical exam required by Canal. The adjuster had also examined the automobile.

Decided July 14, 1987

Rehearing denied July 30, 1987

Harry W. Bassler, Candler Crim, Jr., for appellant.

David N. Rainwater, for appellee.

The factors relied on by Canal in support of its motion for directed verdict were that the claim had not been reported to it until four months after the accident, there were no injuries reported in the police report, and there was no substantial damage to the rear of the Henderson vehicle.

In contrast to these factors were the following acts and omissions of adjuster Mobley: (1) he refused to examine the drive shaft when he examined the car, even though it was there and available; (2) he refused to look under the bumper and examine the piece of steel welded there by Mr. Henderson to strengthen it; (3) he never spoke to Dr. Overstreet; (4) he never spoke to the man who hit Henderson or the police officer who investigated the accident; (5) even after receiving the bills for the emergency room visit the night of the accident, he was of the opinion that this visit was “unnecessary”; (6) not until December 27, over 30 days after receiving the proof of loss, did he request the review of Dr. Overstreet’s bills and treatment from Chiropractic Consultants.

We can reverse the trial court’s ruling regarding the directed verdict “only if the evidence at trial does not support an inference of bad faith on the insurer’s part,” Hartford Fire Ins. Co. v. Rowland, 181 Ga. App. 213, 216 (2) (351 SE2d 650) (1986), which is not the case here. This is especially true because Canal’s own doctor did not dispute that the initial injury occurred, and the chiropractic consultant verified that at least some chiropractic care was warranted. Compare Government Employees Ins. Co. v. Presley, 174 Ga. App. 562, 565 (1) (330 SE2d 779) (1985).

2. Henderson has also filed a motion for damages for frivolous appeal and a motion to remand to determine additional attorney fees. These motions are denied.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.