text:
    A89A1776.
    WMH, INC. et al. v. THOMAS et al.
    (392 SE2d 539)
   Pope, Judge.

Plaintiff Bobby M. Thomas is the owner and president of plaintiff Thomas Supply Company, Inc., a retail building supply company, and plaintiff T. P. Lumber Sales Company, a lumber wholesaler. Defendant William M. Huffman is the owner of WMH, Inc., an independent insurance agency, which conducts business under the name Lanier, Huffman, Robinson (hereinafter “LHR”)- For several years prior to 1985, plaintiff companies purchased insurance policies through LHR. In August 1985 Brenda Thomas, Bobby Thomas’ wife and also an officer in plaintiff companies, solicited bids from several agencies. She informed an employee of LHR that he had returned the lowest bid and requested him to obtain coverage at the quoted prices to replace several insurance policies which were about to expire. In September LHR informed Mrs. Thomas it had been unable to obtain coverage at the quoted prices and offered new higher quotes. Again, Mrs. Thomas requested coverage. In late October and early November, LHR informed Mrs. Thomas that it had been unable to obtain coverage at the rate of the second quote. Because Mrs. Thomas knew that three of the companies’ policies were expiring, she instructed LHR to obtain coverage.

On December 19, 1985, LHR’s employee brought three written policies to plaintiffs’ place of business. A policy of fire, theft and collision insurance was written by Lloyds of London; premises liability insurance was written by Lumbermens Mutual Insurance Company and business-automobile liability insurance was written by Integral Insurance Company. The final premiums for these three policies were significantly in excess of any of the previous quotes made by LHR. Bobby Thomas refused to accept the Lloyds policy but accepted the other two policies. LHR’s employee indicated he would need to have Mr. Thomas’ decision on the Lloyds policy in writing and dictated a letter which Mrs. Thomas typed and Mr. Thomas signed instructing LHR to “cancel” the policy. The Lloyds policy was taken back to LHR’s office and was not left with plaintiffs. Shortly after the December 19 meeting, the LHR employee telephoned Mrs. Thomas at home to tell her a penalty of twenty-five percent of the unearned premium would be charged if the Lloyds policy were cancelled. Nevertheless, plaintiffs reiterated that they did not want the Lloyds policy. Plaintiffs had not been informed earlier of the penalty charge. No copy of the endorsement setting forth the unearned premium penalty was shown to plaintiffs. A copy of the policy and the endorsement was placed in evidence at trial. Unlike the other two written endorsements to the policy, the unearned premium penalty endorsement was not numbered, dated or signed by a representative of Lloyds.

Plaintiffs paid in full for the Lumbermens policy on December 31, 1985. On January 17, 1986, plaintiffs changed the agent of record on the Integral policy from LHR to another insurance agency and on January 20 that agency paid the full premium on the policy to LHR on behalf of plaintiff Thomas Supply Company. Mr. Huffman testified that he made a business decision to have plaintiffs’ policies can-celled by the issuing insurance companies when Bobby Thomas refused to pay $5,418.80 as the penalty owing on the Lloyds policy. The evidence showed that on February 2, 1986, Mr. Huffman telephoned a representative of Lumbermens Mutual and asked him to cancel plaintiffs’ policy on the ground that plaintiffs owed his agency money. The representative informed Mr. Huffman that Lumbermens Mutual could not cancel its policy unless money was owed on the policy itself. After this conversation Mr. Huffman learned that Lumbermens Mutual had issued an audit endorsement and a bill for an additional premium of $6,212 was sent to plaintiffs. The record shows plaintiffs did not receive the bill until February 6. However, on February 6 or 7, Mr. Huffman telephoned Lumbermens Mutual and informed the representative that plaintiffs now owed money on their policy and again requested the policy be cancelled. Lumbermens Mutual issued a cancellation notice dated February 7. Two banks, which were plaintiffs’ creditors on insured property, were notified that the policy had been cancelled for “non-payment.” On February 3, Integral Insurance Company issued a notice of cancellation reflecting on its face that the reason for cancellation was “agent’s request.” Mr. Huffman admitted that the Integral policy was cancelled at the request of LHR. At the time Integral’s policy was cancelled LHR had been notified that plaintiffs had changed their agent of record to one of its competitors.

LHR received the unearned premium refunds for the two can-celled policies and retained the sum of $5,418.80 which it claimed was owed on the Lloyds policy. Plaintiffs were able to reinstate the Integral policy through the new agency, but obtained coverage to replace the Lumbermens Mutual policy at a cost of $1,032.23 more than the premium charged by Lumbermens Mutual.

Plaintiffs brought this action against defendants for conversion of the sum allegedly owed to Lloyds, tortious interference of contractual relations and defamation. The jury returned a verdict against defendants on all counts and awarded damages totalling $279,170.60 including punitive damages. Defendants appeal the denial of their motion for judgment notwithstanding the verdict.

1. Defendants first argue plaintiffs have no right to recover in tort. According to defendants, plaintiffs’ right of action, if any, is in contract and the exclusive remedy for plaintiffs’ claim is the recovery of a statutory penalty for failure to return unearned premiums as set forth in OCGA § 33-24-44 (c) (3). Unlike the claim in EBCO Gen. Agency v. Mitchell, 186 Ga. App. 874 (368 SE2d 782) (1988), the issues in controversy in this case do not involve simply the amount owed as refund for unearned premiums on a cancelled policy. The issues in this case involve whether the policies were wrongly cancelled and whether funds were wrongly withheld. The rule that an action in tort cannot be maintained in regard to a breach of a contractual duty applies only where the duty breached arose solely from the contract between the parties. See Jet-Air, Inc. v. Nat. Union Fire Ins. Co., 189 Ga. App. 399 (3) (375 SE2d 873) (1988); Long v. Jim Letts Oldsmobile, 135 Ga. App. 293 (2) (217 SE2d 602) (1975). The alleged breach of duty in this case related to a duty of care imposed by law and not merely the breach of a duty imposed by the terms of the contract. See Bank South, NA v. Harrell, 181 Ga. App. 64 (2) (351 SE2d 263) (1986). Where, as here, an insured’s suit is not upon the contract but in tort, the penalty provisions of the Code relating to breach of insurance contracts do not control the case. See United States Fidelity &c. Co. v. Evans, 116 Ga. App. 93 (2) (156 SE2d 809) (1967).

2. Defendant LHR argues it was entitled to judgment on plaintiffs’ claims of tortious interference with contractual relations because it was acting as the agent of the insurance companies with which plaintiffs contracted for insurance. It is true, as defendant argues, that the tort of interference with contractual relations requires interference with the performance of a contract between the plaintiff and a third party. See Energy Contractors v. Ga. Metal Systems, 186 Ga. App. 475 (4) (367 SE2d 324) (1988). Citing Jet-Air, Inc. v. Nat. Union Fire Ins. Co., supra, defendant argues it cannot be liable for any communications or actions in regard to plaintiffs’ contracts with the insurance companies because defendant was acting within the scope of its duty as agent for the companies. Generally, one engaged in selling insurance is held to be the legal agent of an insurer when the agent is granted authority by the insurer to bind coverage. See Alexander Underwriters v. Lovett, 177 Ga. App. 262 (2) (339 SE2d 368) (1985). An employee of defendant LHR testified the defendant had no authority to bind coverage with either Lumbermens Mutual or Integral Insurance Company. Thus, evidence was presented whereby the jury could conclude that defendant LHR was not the agent of the companies and therefore defendant was not entitled to judgment as a matter of law on the claim for tortious interference with contractual relations.

3. Evidence was presented that defendant Huffman personally made the request to Lumbermens Mutual to cancel plaintiffs’ policy. However, the evidence in regard to the Integral Insurance Company policy merely showed that cancellation was made pursuant to “agent’s request.” Defendant Huffman argues he was entitled to judgment in his favor in regard to plaintiffs’ claim of tortious interference with the Integral policy. Although no evidence was presented that Huffman personally communicated with Integral Insurance Company in regard to plaintiffs’ policy, the evidence does show that the decision to seek cancellation from both Integral and Lumbermens Mutual was made by defendant Huffman. Therefore, the trial court did not err in failing to grant judgment to defendant Huffman on this claim.

4. We reject the argument that defendants are entitled to judgment on plaintiffs’ slander claim. First, defendants argue the trial court erred in allowing plaintiffs to present evidence of slander because plaintiffs’ complaint alleged libel and not slander. However, we note that the outline of plaintiffs’ claim contained in the pre-trial order refers not only to alleged “libelous statements” but also to what defendants “told” the insurance companies about plaintiffs’ failure to pay premiums. Consequently, defendants were on notice that plaintiffs intended to present evidence of oral defamation.

Whether defendants’ statements to the insurance companies were statutorily privileged pursuant to OCGA § 51-5-7 (2) and (3) because they were made in good faith was an issue for jury determination. Sufficient evidence was presented whereby the jury could conclude that the statements were made maliciously or wrongly and therefore defendants were not entitled to judgment as a matter of law on the ground the statements were privileged.

Evidence was presented to show the statements that plaintiffs had failed to pay premiums due were false. The publication of false statements about a merchant’s failure to pay a debt is actionable. See Walker v. Sheehan, 80 Ga. App. 606 (2) (65 SE2d 628) (1949).

Finally, defendants argue that even if the statements made by employees of defendant LHR were slanderous the company cannot be held liable. However, evidence was presented to show defendant Huffman, in his capacity as an officer of the company, expressly authorized the action taken as a “business decision.” A corporation may be liable for the speaking of slanderous words by one of its agents where it affirmatively appears the agent was expressly directed or authorized to speak the words in question. Behre v. Nat. Cash Register Co., 100 Ga. 213 (1) (27 SE 986) (1896).

5. We reject defendants’ argument that they were entitled to judgment in regard to the slander claim of plaintiff Bobby Thomas because he was not, individually, a party to the contracts of insurance and was not the subject of the alleged slander. Although defendant Huffman denies he mentioned Bobby Thomas individually when speaking to the representative of Lumbermens Mutual, that representative responded affirmatively, during the videotaped deposition played at trial, to the question asking whether he issued the cancellation notice in response to the representation by defendant Huffman that “Bobby Thomas wouldn’t pay the . . . premium.” Moreover, an individual may have a cause of action for defamatory statements made about a company when it is known that he is the owner of the company and his name is a component part of the company name. See Weatherholt v. Howard, 143 Ga. 41 (84 SE 119) (1915); Southland Pub. Co. v. Sewell, 111 Ga. App. 803 (1) (143 SE2d 428) (1965).

6. We find no error in the trial court’s refusal to give the three charges requested by defendants on slander. The jury was properly charged on the law of slander and the defense of privileged statements,

7. Neither did the trial court err in failing to charge the jury that a binding contract existed as a matter of law for the policy with Lloyds of London. “The language or conduct necessary to create the contract is simply that which is enough to show that there has been a meeting of the minds.” (Citation and punctuation omitted.) Ray v. Ga. Farm &c. Ins. Co., 176 Ga. App. 776, 778 (337 SE2d 779) (1985). Evidence was presented to create an issue for the jury as to whether the parties had agreed to the price of the policy LHR ultimately procured for plaintiffs from Lloyds of London.

8. Citing Hodgskin v. Markatron, 185 Ga. App. 750 (1) (365 SE2d 494) (1988), defendants argue the trial court erred in submitting the claim for conversion to the jury. In Hodgskin, this court ruled no claim for conversion would lie against a company for commissions owed to a former employee because the claim was not for specific money but merely for a sum of money owed to the employee. Here, however, the claim involved specific funds (i.e., the refund of unearned premiums) rightfully belonging to plaintiffs. Conversion of funds rightfully belonging to another provides an action in tort. Privitera v. Addison, 190 Ga. App. 102 (1) (378 SE2d 312) (1989). As this court held in Priuitera, the enumeration claiming plaintiffs cannot recover for conversion because plaintiffs do not seek recovery of some specific money is without merit. “An exercise of dominion or control over property, which is inconsistent with the legal rights of [a party with a legal interest in the property] is a conversion of the property.” Id. at 106.

9. We find no error in the trial court’s charge on the law of conversion or in the court’s failure to give the charges requested by defendants.

10. We hold that each of defendants’ four enumerations of error regarding the size of the award of punitive damages is governed by the Georgia Supreme Court’s recent ruling in Hospital Auth. of Gwinnett County v. Jones, 259 Ga. 759 (386 SE2d 120) (1989). “We have reviewed the evidence presented in this case and hold, under the circumstances presented, the trial court did not abuse its discretion in refusing to overrule the jury’s punitive damage award. Nor, do we find the judgment so excessive as to be unconstitutional.” Id. at 766.

11. We reject defendant Huffman’s argument that he may not be held personally liable for the acts performed in the name of the defendant corporation. “In Georgia, where a corporate tort is committed, an officer who takes part in its commission or who specifically directs the particular act to be done or who participates or cooperates therein is personally liable for the commission of the tort.” Alexie, Inc. v. Old South Bottle Shop Corp., 179 Ga. App. 190, 193-194 (345 SE2d 875) (1986). Defendant Huffman testified that he made the decision to seek cancellation of plaintiffs’ policies. Consequently, sufficient evidence was presented to show defendant Huffman was a joint tortfeasor with the corporate defendant and his defense of improper venue is invalid. Those cases relied upon by defendant Huffman to support his argument that an officer may not be held liable for the torts of a corporation are distinguishable. See Energy Contractors v. Ga. Metal Systems, 186 Ga. App. 475, supra (in which neither the president of the corporation nor the corporation itself could be liable for tortious interference with the contract in question because the corporation was a party to the contract); Earnest v. Merck, 183 Ga. App. 271 (358 SE2d 661) (1987) and Trans-State v. Barber, 170 Ga. App. 372 (317 SE2d 242) (1984) (which addressed the issue of individual liability for corporate contractual liabilities). The trial court did not err in failing to charge the jury that individual liability could not be imposed without evidence sufficient to pierce the corporate veil.

12. We reject defendants’ argument that testimony, presented to show the signature of Brenda Thomas on the Lloyds of London policy was not authentic, was immaterial and reversible error because it was prejudicial to defendants. Whether that policy was accepted by plaintiffs and then cancelled or was never accepted and merely rejected when plaintiffs learned of the difference between the quoted premium and the actual premium was a material issue for jury determination in the case.

13. We also reject defendants’ argument that the trial court erred in failing to charge the jury on the law of ratification. The Lloyds of London policy was either accepted, whether orally or by written signature, or never accepted. The discussions between LHR’s employee and the Thomases could not serve to ratify a forged signature on the contract.

Decided February 26, 1990

Rehearing denied March 23, 1990

Brinson, Askew & Berry, Robert M. Brinson, C. King Askew, J. Anderson Davis, for appellants.

Butler, Wooten, Overby & Cheeley, James E. Butler, Jr., for appellees.

Thomas L. Murphy, amicus curiae.

14. Finally, defendants argue the trial court erred in denying their motion for new trial because plaintiffs’ counsel made improper argument to the jury in his closing argument. We have reviewed the transcript of the closing argument and find no reversible error. Defendants made no objection to several of the allegedly improper comments. All but one of defendants’ objections were sustained. Defendants made no motion for mistrial or for further corrective instructions to the jury. Thus, appellate review was waived. See Purcell v. Hill, 220 Ga. 663 (141 SE2d 152) (1965).

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A89A2051.
    COLE et al. v. CITY OF ATLANTA.
    (392 SE2d 283)
   Birdsong, Judge.

Appellants are golf professionals (and the representative of one deceased golf professional) who assert that they were parties to an oral contract with the City of Atlanta to provide services on the city’s golf courses until each of them reached the retirement age of 70. Alleging that the City breached these contracts when it leased out the golf courses to another corporation, appellants attempt to recover the value of equipment and inventory purchased by them as well as funds paid to the City from golf cart rentals. Appellants’ original suit, seeking to enjoin the City from leasing the golf courses and alleging the contract claim, was dismissed. On appeal, the Georgia Supreme Court determined that the contract claim only should not have been dismissed. After a jury trial on the contract issues, a verdict was rendered for appellants; the trial judge subsequently granted a judgment n.o.v.; and this appeal was taken. Held:

1. Appellants’ first contention, that the action of the Supreme Court on the first appeal precludes the entry of a judgment n.o.v. herein, is without merit. The issue before the Supreme Court on the original appeal was the correctness of the grant of a motion to dismiss for failure to state a claim upon which relief could be granted. Cole v. City of Atlanta, 257 Ga. 145 (357 SE2d 257). The Supreme Court, in deciding that the contract claim should not be dismissed, inherently held that the pleadings as presented stated a contract claim. See W. M. Griffin Family Farms v. Northrup King & Co., 191 Ga. App. 304 (381 SE2d 441). The City was not thereby foreclosed from presenting a defense to that claim at trial, and if appellants were unable to establish evidence at trial to support their claim, the trial judge was not foreclosed from determining whether appellants carried their burden.

2. Appellants next contest the entry of the judgment n.o.v., and to support their argument, raise several issues regarding the validity of the contract with the City. We need only discuss one of those issues, whether the alleged contracts of employment were shown to have been authorized by an official or officials with power to bind the City, as our decision as to this issue renders the other issues moot.

It is clear under the law of this state that “[c]ity officials cannot establish a duty on the part of the city where none exists by law. OCGA § 45-6-5. [Cit.]” Southeast Grading v. City of Atlanta, 172 Ga. App. 798 (3) (324 SE2d 776). Further, any person dealing with a municipality in a contractual context has a duty to determine that the City has complied with the laws limiting and prescribing its powers. City of Atlanta v. Bull, 161 Ga. App. 648, 649 (288 SE2d 335). Therefore, a person asserting a contractual claim against the City must clearly show that the contract was authorized. See City of Jonesboro v. Shaw-Lightcap, 112 Ga. App. 890 (147 SE2d 65). The record in the instant case does not reveal any evidence, other than bare statements of opinion by city officials, that the contract alleged was authorized pursuant to acts of the City. The unauthorized nature of the contract also forecloses appellants from asserting estoppel against the City. Compare Corey Outdoor Advertising v. Bd. of Zoning &c. of Atlanta, 254 Ga. 221 (3) (327 SE2d 178).

As to appellants’ contention that the trial judge erred in excluding from evidence the affidavit of the parks commissioner, we note that the affidavit, even if admitted, would not have shown authority by the City to contract as herein asserted.

Since there is no conflict in the evidence as to any material issue, and the “ ‘evidence introduced, with all reasonable deductions therefrom’ ” ’ ” (Orkin Exterminating Co. v. Durden, 189 Ga. App. 479, 480 (376 SE2d 376)) demands a finding that the alleged contract, even if proven, would be unauthorized, the judge was not in error in granting the judgment n.o.v. Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554).

3. The record on review also reveals that appellants submitted no evidence to support their claim for recovery on the theory of quantum meruit, under which appellants would only be able to recover the value of their services to the City, not the cost to themselves of producing the desired result of the contract. Stowers v. Hall, 159 Ga. App. 501 (3) (283 SE2d 714). Thus, the expenditures of the provider are not to be considered in computing the value to the recipient. All Risk Ins. Agency v. Southern Bell &c. Co., 182 Ga. App. 190 (7) (355 SE2d 465). At trial, appellants only introduced evidence of their costs. The equipment and inventory purchased by appellants remained their own property, and the portion of the golf cart rentals paid to the City was payment for the concession granted to them. Prior to their termination, appellants consistently received the agreed-upon consideration for their services, and since there was no evidence presented of any value received by the City which remained uncompensated, the judgment n.o.v. is affirmed.

Decided March 7, 1990

Rehearing dismissed March 23, 1990

Remler, Catts & Koski, Robert C. Koski, for appellants.

Marva Jones Brooks, Kendric E. Smith, Overtis H. Brantley, for appellee.

4. Since the City’s contention that appellant Cheryl Cole was not entitled to recover because Hume Cole died prior to any breach by the City presupposes the existence of a contract, based upon our holding herein, there is no need to address this issue on appeal.

Judgment affirmed.

Carley, C. J., and Deen, P. J., concur. Cooper, J., disqualified.


author: Beasley, Judge.

text:
    A89A2106.
    COOK v. THE STATE.
    (392 SE2d 556)
   Beasley, Judge.

Defendant appeals his cocaine possession conviction, OCGA § 16-13-30.

1. Appointed counsel for defendant has filed an enumeration of error raising the general grounds only. See Lewis v. State, 186 Ga. App. 92 (1) (366 SE2d 305) (1988),

A Brunswick police officer testified that on October 23, 1987, he stopped a car driven by defendant in which Sam Armstrong was a passenger. The officer saw the driver’s side door open about six inches and an object drop on the ground beside the car. He opened the door, grabbed defendant and spied a matchbox “laying down there just below the door.” The box contained cream-colored rocks which were subsequently identified as cocaine. The officer also found a razor blade with the cream-colored substance on it located on the hump between the driver’s seat and that of the passenger. There was also a plastic container with a small residue at the same place.

Decided March 7, 1990

Rehearing denied March 23, 1990.

Gary B. Cook, pro se.

Glenn Thomas, Jr., District Attorney, for appellee.

Armstrong, under a grant of immunity, testified he was in the car with defendant on October 23; defendant had cocaine in his possession; he knew defendant had cocaine in a matchbox because he was with defendant when he bought it; the matchbox identified by the police officer was the one defendant had in his pocket. Armstrong admitted using cocaine, and in answer to the question “did you have any type of business arrangement with [defendant]?” stated that “we was partners.” When asked what type of partners, he responded: “The dope game.” Defendant objected to this and moved for mistrial which, after a hearing out of the presence of the jury, was denied. Armstrong also testified that defendant opened the door and threw the matchbox with “the dope” out of the car when they were stopped.

The evidence was sufficient for a rational trier of fact to find defendant guilty beyond a reasonable doubt. Lewis v. State, 186 Ga. App. 349, 350 (1) (367 SE2d 123) (1988); Howard v. State, 185 Ga. App. 215 (1) (363 SE2d 621) (1987).

2. Defendant also filed a pro se enumeration of errors and brief, after the first were filed. We have held that under our State Constitution defendant has no right to simultaneous representation by counsel and self-representation. Smith v. State, 194 Ga. App. 327 (390 SE2d 304) (1990); Cargill v. State, 255 Ga. 616, 622 (3) (340 SE2d 891) (1986). Thus, we do not consider those errors raised by defendant.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


text:
    A89A2257.
    HILLHAVEN REHABILITATION & CONVALESCENT CENTER v. PATTERSON.
    (392 SE2d 557)
   Beasley, Judge.

William Patterson, as executor of the estate of the deceased John Patterson, brought an action for medical malpractice against Hill-haven, a nursing home. While a patient at Hillhaven, John Patterson fell out of bed, broke his hip and subsequently died from complications arising out of the injury. The complaint alleged that Hillhaven failed to exercise reasonable care by failing: 1) to have adequate nurses to assist decedent; 2) to provide adequate guard rails; 3) to use a restraint to secure decedent to the bed; 4) to assist decedent in getting in and out of bed in his weakened condition; 5) to heed the family’s warning that he needed to be monitored and to use bed rails; 6) to provide supervision of the patient; 7) to exercise that degree of care and skill ordinarily possessed by the nursing profession generally.

1. After discovery Hillhaven moved for summary judgment, attaching an affidavit supporting its compliance with the requisite standard of care for a nursing home. Patterson filed a physician’s affidavit in opposition. The trial court denied the motion, and we granted Hillhaven’s application for interlocutory review. The principal issue is whether the plaintiff’s medical affidavit is sufficient to demonstrate a violation of the applicable standard of care by Hillhaven.

The affidavit recited: “Based on my education . . . and experience, I am familiar with the standard of care and treatment rendered by nursing homes under the same or similar circumstances with respect to the type of care involved in the care of John . . . Patterson. . . . Based on a review of his medical records and my personal knowledge, in my opinion, the care of [John] Patterson by the nurses, nurses aides and all other agents or employees of Hillhaven ... at all times and in all respects did not meet the degree of care and skill required of nursing homes generally and the employees of such nursing homes in the Atlanta metropolitan area under the same or similar circumstances.”

Plaintiff cannot prevail on motion for summary judgment merely by presenting a conclusional opinion that defendant was negligent or failed to adhere to the professional standard, for such does not create an issue of fact. He must state the particulars in which the treatment was negligent, including an articulation of the minimum standard of acceptable professional conduct, and how and in what way defendant deviated therefrom. Loving v. Nash, 182 Ga. App. 253, 255 (1) (355 SE2d 448) (1987). Accord Minchey v. Zane, 188 Ga. App. 733 (374 SE2d 225) (1988); Humphrey v. Alvarado, 185 Ga. App. 486, 487 (2) (364 SE2d 618) (1988); Bushey v. Atlanta Emergency Group, 179 Ga. App. 827, 828 (348 SE2d 98) (1986). The affidavit offered by Patterson failed to meet the threshold requirement of the right to recover for medical malpractice.

2. Although not brought to this court’s attention when the interlocutory application was filed, Patterson argued a basis for recovery based upon ordinary negligence in response to a motion to dismiss the complaint and pursues this line of argument on appeal. Some of the grounds in the complaint, such as number 4 listed above, assert ordinary negligence.

There is no requirement that expert testimony be produced by plaintiff proceeding upon a simple negligence theory in order to prevail at trial. Self v. Executive Committee &c. of Ga., 245 Ga. 548 (266 SE2d 168) (1980); Piedmont Hosp. v. Milton, 189 Ga. App. 563, 564 (377 SE2d 198) (1988). These so-called “administrative acts” whose performance requires no professional knowledge, skill or experience need not be supported by expert opinion. Porter v. Patterson, 107 Ga. App. 64, 70-73 (1) (129 SE2d 70) (1962). See also Shea v. Phillips, 213 Ga. 269, 271 (2) (98 SE2d 552) (1957); Killingsworth v. Poon, 167 Ga. App. 653, 655 (307 SE2d 123) (1983) [negligence may be indicated, from “pronounced results”]. Insofar as the complaint can be construed as setting forth simple negligence as a basis for recovery, summary judgment was properly denied.

Decided March 7, 1990

Rehearing denied March 23, 1990.

Goldner, Sommers & Scrudder, Susan V. Sommers, Linda E. Jacobsen, for appellant.

Custer, Hill & Clark, Lawrence B. Custer, for appellee.

The judgment must be reversed with direction that all allegations of medical malpractice be stricken and that plaintiff be allowed to proceed only upon simple negligence. See OCGA § 9-11-56 (d).

Judgment reversed with direction.

Carley, C. J., and McMurray, P. J., concur.


text:
    A89A1725.
    CITY OF ATLANTA v. J. A. JONES CONSTRUCTION COMPANY.
    (392 SE2d 564)
   Birdsong, Judge.

The City of Atlanta (the City) appeals from a judgment, based upon a jury verdict awarding damages to the J. A. Jones Construction Company (Jones). Jones alleged the City improperly awarded the contract to build new parking decks at the Atlanta Airport to a company which submitted a late bid (Count I), and that the City deprived Jones of the contract without due process of law (Count II).

The record shows the contract requirements specified the bids must be submitted no later than 2:00 p.m., April 10, 1985. Jones and several other bidders submitted their bids by 2:00 p.m., but at 2:03 p.m., after it had been announced that no other bids would be accepted, Interstate Construction Company (Interstate) submitted its bid. Although the City apparently intended to reject Interstate’s untimely bid, it was opened with the timely bids. Another bid, submitted between 2:05 and 2:10 p.m. was rejected because it was submitted after 2:00 p.m.

When the bids were opened, Interstate’s bid was about $10,500 under the next lowest bid submitted by Jones, and all bids were over $13,000,000. After Jones protested the City opening the Interstate bid, it received oral assurance from the city official supervising the bid opening that Interstate’s bid would be rejected.

Notwithstanding the untimely bid, Interstate started efforts to secure the contract. At 5:00 p.m. that day, at Interstate’s request, the City checked the bid clock and apparently it was three minutes faster than clocks at the U. S. Bureau of Standards and a local time service. The record, however, shows the clock was never found fast in the years before or after 5:00 p.m., April 10, 1985, and no one could say that the clock was three minutes fast at 2:00 p.m. that day. Lawyers representing Interstate contacted the city’s chief ádministrative officer and the mayor.

On April 10, 1985, Jones’ attorneys sent a letter to the City protesting consideration of Interstate’s bid, demanding the award of the contract to Jones, and advising of Jones’ intention to sue if it was not awarded the contract. Similar letters were also sent to the City on April 23 and 25, 1985.

The uncontradicted evidence showed that time is critical right before bids are submitted, and bids are frequently adjusted at the last moment. Potential subcontractors frequently make last minute price changes, and corresponding changes are made in the bids. Consequently, bidders usually synchronize their watches with the City bid clock and maintain contact with their offices from near the bid office so they can receive the latest changes in their bid, but avoid filing a late bid. Indeed, Jones lowered its bid by over $4,000,000 in the last hours and by an additional $200,000 in the minutes before the bid was submitted. Thus, even without knowing the amounts of the other bids, a late bidder gained an important advantage by gaining additional time to revise its bid.

Jones’ witnesses testified, without contradiction, that the company is very experienced in constructing large projects. More significantly, the uncontradicted testimony showed that Jones achieved its anticipated profits on those projects and on 80-90 percent of all its projects. Further, the unrebutted testimony was that cost overruns were the primary reason for not achieving the anticipated profit, that cost overruns were unlikely to occur on projects done regularly, and that the parking decks were a type project done regularly by Jones.

The evidence showed the invitation for bids called for bids on the basic project and two related projects. Jones’ witnesses testified the anticipated profits from these two projects were $250,000 and over $264,000. Evidence shows that the bidder awarded the base project was awarded both additional projects.

The unrebutted evidence was that Jones’ bid preparation costs were $22,125.05, that because it lost this contract it lost its expected profits on all three projects, and because it lost the projects, it laid off employees it would not have otherwise. Although the trial court ruled the expected profits on the additional projects were too speculative to permit the award of damages for their loss, the court charged the jury that it could measure the damages awarded on Count II by the loss to Jones as proved by all the evidence introduced.

The evidence showed that the three letters Jones sent to the City’s procurement officials were referred to the City’s law department and were never answered. Jones introduced at trial the City’s Procurement Code and Real Estate Code (Atlanta Ordinance No. 1983-52, 7/21/83) (“the Code”). Article H of the Code, Appeals and Remedies contains the protest procedures. Jones was authorized to file a protest by letter and the City was required to respond within ten days, with its decision, the reasons therefor, and also informing Jones of its rights to administrative review. Section 5-5111. No such response was ever made.

Instead, the City engaged in extensive internal debate apparently caused by the successful bidder’s ability to invoke the participation of the City’s chief administrative officer and the mayor. Consequently, even though the City’s director of the bureau of purchasing and real estate, the assistant director for contracts, and the commissioner of the department of administrative services all deemed that Interstate’s bid was untimely and should be rejected and that Jones should be awarded the contract as the lowest responsible and responsive bidder (see Section 5-5044 (9)), the decision on acceptance of Interstate’s bid was elevated to the mayor.

The mayor testified that he viewed the matter as a battle between city departments without consequence to the bidders, and he did not feel legal advice was needed. In the mayor’s opinion, being three minutes late in submitting a bid was not significant. He felt it important to show that the spirit of the law was as important as the letter, and they should not be inflexible if a lower price could be achieved.

Moreover, the mayor’s testimony admitted he decided the matter with serious misunderstandings about the facts: He believed that Interstate’s bid was $150,000 lower than Jones’ bid, not $10,500; that the “fast clock” was detected contemporaneously with the late bid, not three hours later; and that this was only a small project, not one for over $13,000,000. Additionally, the mayor did not know the other late bid was rejected. Further, the mayor testified he “possibly” took into consideration that Jones was a very large contractor with plenty of work and that this “little parking deck . . . probably was not much for them.” In spite of the above related facts, the mayor decided to accept Interstate’s bid. Jones, however, only learned of this indirectly when it heard Interstate had started work on the project.

Subsequently, suit was filed, the jury verdict was for Jones on both counts, and the trial court entered judgment in favor of Jones for $1,018,506.19 plus post-judgment interest. Thereafter, the City filed this appeal. Held:

1. The City’s first enumeration of error alleges the trial court permitted the award double recovery for a single injury. While double recovery is not permitted for one injury, that principle has no application here because there were two injuries (Davis v. Davidson, 175 Ga. App. 451, 452 (333 SE2d 648)); Count I under state law for not awarding Jones the contract as required (see Hilton Constr. Co. v. Rockdale County Bd. &c., 245 Ga. 533, 538 (266 SE2d 157)), and Count II under 42 USC § 1983 for the denial of due process (see Board of Regents v. Roth, 408 U. S. 564, 577 (92 SC 2701, 33 LE2d 548)).

The City also seeks to argue under this enumeration that federal law precludes the damages given under the § 1983 count. As this contention is not included within the enumeration of error and it is not enumerated elsewhere, we may not consider it, OCGA § 5-6-40; Rider v. State, 226 Ga. 14 (2) (172 SE2d 318). Further, the scope of appellate review may not be enlarged through a process of switching, shifting and mending one’s hold. Wilson v. State, 145 Ga. App. 315 (5) (244 SE2d 355).

2. The City’s second enumeration of error asserts that the trial court’s charge on “the nature of a material deviation” was erroneous. No argument, no reference to the record, or citation of authority was made in the City’s brief to support this enumeration, and it is deemed abandoned. Court of Appeals Rule 15 (c) (2); Sepulvado v. Daniels Lincoln Mercury, 170 Ga. App. 109 (316 SE2d 554). See also Cooper v. Commercial Union Ins. Co., 192 Ga. App. 815, 816 (386 SE2d 551).

3. The City’s third enumeration contends that the trial court erred by allowing the award of damages for Jones’ lost profits. Although lost profits are not recoverable when they are too speculative to permit calculation (Davis v. Boyd, 118 Ga. App. 198 (162 SE2d 880)), this rule does not bar recovery of lost profits when they can be calculated with reasonable certainty. Moultrie Farm Center v. Sparkman, 171 Ga. App. 736, 738 (320 SE2d 863); Cobb & Eldridge, Ga. Law of Damages (3d ed.), §§ 2-8; 2A-8.

From the evidence about the nature of this project and Jones’ prior experience (especially as viewed and resolved in favor of the verdict, Union Camp Corp. v. Daley, 188 Ga. App. 756 (1) (374 SE2d 329)), Jones proved a loss of anticipated profits which could be calculated with reasonable certainty. Moultrie Farm Center v. Sparkman, supra. Further, the City’s argument that a disappointed bidder for a public contract is never entitled to recover lost profits is contrary to our Supreme Court’s decision in Hilton Constr. Co. v. Rockdale County, supra. Consequently, the award of damages based on the expected lost profits was authorized.

4. The fourth enumeration contends the trial court erred by directing a verdict for Jones on the City’s liability for Count II, the 42 USC § 1983 claim. The City’s contention relies on the United States Supreme Court’s holding in Parratt v. Taylor, 451 U. S. 527 (101 SC 1908, 68 LE2d 420), that an adequate post deprivation remedy can be sufficient due process to defeat a § 1983 claim.

The City contends the failure to adhere strictly to the Code’s procedures was not a due process violation, and a post deprivation remedy was sufficient because granting due process would have delayed construction, possibly added to the project’s cost, and delayed alleviation of the airport’s parking problems. These arguments are not based on the record. The record shows that the contract was not awarded promptly. Although the bidding closed on April 10,1985, the contract was not awarded until days or weeks after April 29, 1985.

The City’s argument that a 42 USC § 1983 action cannot be based on a single act was rejected by our Supreme Court in City of Cave Spring v. Mason, 252 Ga. 3-4 (310 SE2d 892). The number of due process violations is not significant if the act was official City policy. The intentional decision by the mayor certainly qualifies.

Additionally, the City’s argument ignores that “[t]he fundamental requirement of due process is the opportunity to be heard and it is an ‘opportunity which must be granted at a meaningful time and in a meaningful manner.’ ” [Parratt v. Taylor, supra at 540), and that post deprivation remedies found to be adequate were required by a need for quick action or the impracticality of providing “meaningful predeprivation process” coupled with the “availability of some meaningful means” of assessing the action after the fact. Id. The facts of this case belie any argument either that prompt award was required or that a hearing was impractical. Thus, a post deprivation hearing was not sufficient. Logan v. Zimmerman Brush Co., 455 U. S. 422, 436 (102 SC 1148, 71 LE2d 265). The City’s argument also ignores the requirement that a constitutional post deprivation procedure must provide an adequate remedy to redress the wrong. See generally Vann v. DeKalb County Bd. of Tax Assessors, 186 Ga. App. 208, 211 (1) (367 SE2d 43), citing Parratt, supra, and Hudson v. Palmer, 468 U. S. 517, 533 (104 SC 3194, 82 LE2d 393). The City offers as a post deprivation remedy Jones’ right to sue for damages. As this case shows, however, that right does not entirely compensate for the loss and may only come many years after the fact. Accordingly, that remedy is not adequate.

Finally, the City’s argument that Jones had no protected property right under the law of this state, completely misreads our Supreme Court’s decision in Hilton Constr. Co., supra. See also Strickland v. Ports Petroleum Co., 256 Ga. 669, 670 (353 SE2d 17), the right to contract is a protected property right. Contrary to the City’s assertions, Hilton Constr. Co. was remanded to the trial court for determination whether damages were appropriate. 245 Ga. at 540. See also Mark Smith Constr. Co. v. Fulton County, 248 Ga. 694, 695 (285 SE2d 692). Further, the Supreme Court’s decision in Hilton Constr. Co. specifically held that Peeples v. Byrd, 98 Ga. 688 (25 SE 677), on which the City bases this argument, would no longer be followed “when as in this case the law required the award of the contract.” 245 Ga. at 538. Since only Jones was the lowest responsive and responsible bidder (see Division 5, infra), the City’s argument ignores the plain mandate of the Code.

“A directed verdict ... is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.” (Emphasis deleted.) Union Camp Corp. v. Daley, supra at 756; OCGA § 9-11-50 (a).

Here the evidence established that the City deprived Jones of the contract without due process, including the procedure required by the Code. This is sufficient to establish a violation of 42 USC § 1983. In this regard, we must note that the City did not try to prove that it afforded Jones any due process of law. Accordingly, the trial court did not err by granting a directed verdict to Jones on this claim.

5. The fifth enumeration of error contends the trial court erred by refusing to find as a matter of law the City could accept a late bid as long as other bids were not opened. This contention asked the trial court to grant a right the City did not give itself in the Code.

The Code specified that “[t]he contract shall be awarded with reasonable promptness by written notice to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation for bid.” (Emphasis supplied.) Procurement Code § 5-5044 (9). The Procurement Code defines “shall” as “denoting the imperative” (§ 5-5002 (17)) and a “responsive bidder” as “any person who has submitted a bid . . . which conforms in all material respects to the invitation for bids. . . .” (Emphasis supplied.) Procurement Code § 5-5002 (19). The contract specifications and the invitation for bids for this contract required bids to be submitted before 2:00 p.m., April 10, 1985. Interstate did not submit its bid by this time. (Since this argument concedes that Interstate’s bid was late, we need not consider the “fast clock claim.”) Therefore, since Interstate did not submit a bid which conformed “in all material respects to the invitation for bids” it was not a responsive bidder, and the City was required to award the contract to Jones (Hilton Constr. Co., supra). Moreover, whether the lateness of Interstate’s bid was a mere informality which could be waived, or a material defect which could not be waived was submitted to the jury by special interrogatory and the jury decided that the defect was material. Accordingly, the City did not have the discretion to accept the late bid, and the trial court did not err. See also Glynn County v. Teal, 256 Ga. 174 (345 SE2d 347).

Decided March 13, 1990

Rehearing denied March 26, 1990

Marva Jones Brooks, Joe M. Harris, Jr., Michael L. Smith, Bruce P. Johnson, for appellant.

Sumner & Hewes, William E. Sumner, Stephen J. Anderson, David A. Webster, Garrett & McManus, Bowman S. Garrett, Jr., Sheryl N. Currie, for appellee.

Further, the City cited no authority in the Code granting it the discretion to accept a late bid with a material defect. Moreover, the City’s arguments based on authority from foreign jurisdictions are contradicted by controlling precedent from our Supreme Court. Both Hilton Constr. Co., supra, and Georgia Branch, Assoc. &c. v. City of Atlanta, 253 Ga. 397 (321 SE2d 325) clearly hold that when the Code and City Charter require an act, the City lacks the discretion to disregard the requirements.

6. The City’s final enumeration contends the trial court erred by holding that Jones substantially complied with OCGA § 36-33-5. Although it is doubtful that such notice was required on the state law count (see Schaefer v. Mayor &c. of Athens, 120 Ga. App. 301 (170 SE2d 339)), the trial court correctly ruled that the three letters Jones sent the City complied substantially with OCGA § 36-33-5. City of Atlanta v. Frank, 120 Ga. App. 273 (170 SE2d 265); City of Atlanta v. Fuller, 118 Ga. App. 563 (164 SE2d 364). These letters satisfied the purposes of this section (City of Gainesville v. Moss, 108 Ga. App. 713 (134 SE2d 547)) and the complaint adequately averred compliance of § 36-33-5. Moreover, this requirement does not apply to the 42 USC § 1983 count. Majette v. O’Connor, 811 F2d 1416, 1418 (11th Cir. 1987).

Judgment affirmed.

Deen, P. J., and Cooper, J., concur.


author: Cooper, Judge.

text:
    A89A1738.
    WELLS v. NEW YORK LIFE INSURANCE COMPANY et al.
    (392 SE2d 251)
   Cooper, Judge.

Appellant purchased a house in 1962 and executed a deed to secure debt, which was assigned to New York Life Insurance Company (“New York Life”). The deed to secure debt required appellant to make monthly payments into an escrow account from which the annual ad valorem taxes would be paid. From 1962 to 1986, Southeastern Mortgage Corporation (“Southeastern”) serviced the loan and paid the taxes from the escrow account. In February 1986, Banker’s First Mortgage Service Company (“Banker’s First”) purchased Southeastern and began servicing the mortgage; in July 1986, appellant sold a farm to Martha Adkins but did not inform the tax commissioner’s office; in November 1986, the tax commissioner’s office mistakenly sent the wrong tax bill to Banker’s First which resulted in Banker’s First paying taxes in the amount of $962.62 on the farm which appellant sold to Mrs. Adkins; in December 1986, the tax commissioner refunded Mrs. Adkins’ payment of the taxes on the farm because the taxes had already been paid by Banker’s First; in 1987, appellant, after receiving notice that the taxes on his house had not been paid, paid the taxes in the amount of $410.15 and contacted Banker’s First to find out why the taxes had not been paid. When the error was discovered and could not be resolved to his satisfaction, appellant, contending a right of set-off, withheld his final two mortgage payments. New York Life instituted foreclosure proceedings and after his house was advertised during foreclosure proceedings, appellant paid the balance due plus attorney fees. Appellant then sued New York Life and Banker’s First for negligent conversion and wrongful notice of foreclosure, seeking actual and punitive damages in excess of two million dollars. The trial court, ruling that the actions were in contract and not tort, granted appellees’ motion for summary judgment, and appellant appeals.

Appellant’s sole enumeration of error is that the trial court erred in granting summary judgment to appellees. We agree with the trial court’s conclusion that the only duties owed to appellant by appellees were those specified in the deed to secure debt. “It is axiomatic that a single act or course of conduct may constitute not only a breach of contract but an independent tort as well, if in addition to violating a contractual obligation it also violates a duty owed to plaintiff independent of contract to avoid harming him. [Cit.]” Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363, 365 (203 SE2d 587) (1973). However, “[if] there is no liability except that arising out of a breach of the express terms of the contract, the action must be in contract, and an action in tort cannot be maintained.” Commercial Bank &c. Co. v. Buford, 145 Ga. App. 213, 215 (243 SE2d 637) (1978). Inasmuch as appellant has not shown any duty owed to him by appellees other than the duty to pay the taxes on his house, which is a contractual duty, the trial court correctly held that appellant’s tort action could not be maintained and punitive damages could not be recovered. OCGA § 13-6-10.

Decided February 15, 1990

Rehearing denied March 26, 1990

Hurt, Pfeifer & Hyman, James W. Hurt, James E. Butler, Jr., for appellant.

Rainwater & Christy, David N. Rainwater, David A. Forehand, Jr., for appellees.

Appellant’s action for wrongful notice of foreclosure was also properly dismissed by the trial court. At the time the foreclosure notice was published, appellant was two months in arrears on his payments. Although appellant believed he was entitled to a right of set-off, no such determination had been made by the court. A cause of action for wrongful notice of foreclosure does not arise where the foreclosure notice is truthful when published but a determination is made later that the debt was not owing. Aetna Fin. Co. v. Culpepper, 171 Ga. App. 315, 319 (320 SE2d 228) (1984).

Appellant’s reliance on Ford Motor Credit Co. v. Spicer, 144 Ga. App. 383 (241 SE2d 273) (1977) is misplaced. In Ford, plaintiff had two accounts with Ford Motor Credit Company, and a mistake was made which credited one of his payments to the wrong account, causing plaintiff to be in default on the other account. Ford repossessed plaintiff’s automobile without notice to him, and we found that the peremptory taking of the automobile without notice to plaintiff constituted a tort. In the case at bar, the mistake made by the tax commissioner and Banker’s First did not result in appellant being in default on his mortgage. Rather, appellant is responsible for his default by electing to withhold his final two mortgage payments. We find that the trial court’s grant of summary judgment to appellees was proper.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


author: Pope, Judge.

text:
    A89A1874.
    MORGAN v. PALACE INDUSTRIES, INC. et al. GARRETT v. PALACE INDUSTRIES, INC. et al.
    A89A1875.
    (392 SE2d 315)
   Pope, Judge.

We granted discretionary appeals in each of these cases to review separate portions of the same award made by an Administrative Law Judge of the Board of Workers’ Compensation. Because each appeal arises from the same transaction, we have consolidated them for review in a single opinion. At issue in Case No. A89A1874 is whether appellant Milton Morgan, the sole stockholder and director of Palace Industries, Inc., was classified properly as an “employer” along with his company and thus is jointly and severally liable with it for an award of benefits made to Henry Gary “Skip” Garrett. The ALJ found the employers liable because she also found that no insurance coverage existed on the date of the compensable accident which was October 1, 1987. In Case No. A89A1875, appellant Garrett, the injured worker to whom the ALJ made an award, appeals that portion of the award finding that no insurance coverage existed and concluding that the insurer, Liberty Mutual Insurance Company, had no liability. We consider first the issue of insurance coverage.

1. Liberty Mutual issued policy No. WC1-351-411388-016 to Palace Industries, Inc., providing workers’ compensation coverage for a period of one year ending January 5, 1987. Palace Industries was required to make periodic premium payments to keep the policy in force. In October 1986, Liberty Mutual notified Palace Industries that its policy was being cancelled for non-payment of premiums effective November 4, 1986. However, on November 11, 1986, after receiving a payment, Liberty Mutual reinstated coverage. Shortly thereafter, coverage was again cancelled for non-payment because Palace Industries’ check was returned for insufficient funds. Liberty Mutual did issue a renewal policy, No. WC-351-411388-017, and did offer to provide continuous coverage provided it received a renewal deposit payment by January 5,1987. No payment was made. There was evidence that Liberty Mutual had filed with the Board of Workers’ Compensation Form A cards pursuant to Board Rule 126 showing coverage under both policy numbers. Liberty Mutual later filed a Form B card pursuant to the same rule showing cancellation of policy WC-351-411388-016, but never filed one for policy WC-351-411388-017. Liberty Mutual provided evidence that the second policy was not a new policy but merely a continuation of the first and that the difference in the last digit of the policy number merely reflected the new year the policy was to be effective, 1987 rather than 1986.

Garrett argues that because Liberty Mutual never notified the Board of the termination of insurance on the renewal policy, WC-351-411388-017, pursuant to the requirements of Board Rule 126, the policy was in effect at the time of his accident in October 1987 and that the conclusion of the ALJ that no coverage existed is in error. We disagree. In American Centennial Ins. Co. v. Flowery Branch Nursing Ctr., 258 Ga. 222 (367 SE2d 788) (1988), the Supreme Court held that the filings required under Board Rule 126 (as it existed at the pertinent time in this case) are merely evidence of coverage or of cancellation. However, such filings are not conclusive. Evidence exists in the record to support the ALJ’s conclusion that Liberty Mutual terminated insurance coverage for non-payment of premiums in January 1987 and thus had no liability at the time of claimant Garrett’s accident in October 1987. As the record contains evidence to sustain the conclusion of the ALJ, the superior court correctly affirmed it.

2. Having determined that no insurance coverage existed, we turn to the issue of whether Morgan was properly classified as an “employer.” The evidence of record merely shows that Milton Morgan was the sole officer and sole shareholder of Palace Industries, Inc. The claimant, Garrett, testified that his employer was Palace Industries, with Charles Darwin acting as his supervisor. Charles Darwin testified that the employer was Palace Industries.

We do not accept Morgan’s argument that the ALJ was without power to add Morgan as a party. OCGA § 34-9-102 (c) authorizes an ALJ, in pertinent part, “to add or delete parties with or without motion.” We also conclude that the ALJ had the jurisdiction and power to determine the legal question of whether Morgan was the alter ego of Palace Industries. OCGA § 34-9-100 (a) provides in pertinent part, “The board and its administrative law judges shall have full authority to hear and determine all questions with respect to . . . claims [for compensation].” (Emphasis supplied.) However, although there is ample evidence that Morgan, the sole officer and shareholder of Palace Industries, failed in his duty to procure workers’ compensation insurance as required by law, it does not follow, as suggested by claimant Garrett, that it was proper for the ALJ to conclude that Morgan was an “employer” within the definition of OCGA § 34-9-1.

The evidence is uncontroverted that Palace Industries, Inc., was the employer in this case. That Palace Industries withheld money from subcontractors ostensibly to pay workers’ compensation insurance and then did not, but rather simply used the money in the general operation of Palace Industries, including payment of salary and commissions to Morgan, is not evidence of disregard of the corporate entity. We have examined the record and find no evidence to justify that conclusion of law. We note that, although claimant Garrett argues this theory on appeal, the ALJ made no conclusion of law based on the alter ego theory, nor did she make any findings of fact that show a disregard of the corporate entity. Therefore, we conclude it was error to classify Morgan, individually, as an “employer.”

Obviously, should Palace Industries become insolvent and unable to pay the award, claimant Garrett would have a right of action against Morgan based on Samuel v. Baitcher, 247 Ga. 71 (274 SE2d 327) (1981). However, only one of the two Baitcher conditions (no insurance coverage and insolvency of the employer) is shown. Even if both conditions were proved, the action could not be brought properly in a workers’ compensation case, but would have to be brought in a separate action at law.

Decided March 14, 1990

Rehearings denied March 26, 1990

James G. Killough, for Morgan.

Harriss, Hartman, Aaron & Townley, Don L. Hartman, James A. Secord, for Garrett.

Charles Darwin, pro se.

Palace Industries, pro se.

Judgment affirmed in part and reversed in part in Case No. A89A1874; judgment affirmed in Case No. A89A1875.

Banke, P. J., and Sognier, J., concur.


text:
    A89A2180.
    FINCHER v. GOLDEN GLOVE.
    (392 SE2d 303)
   Pope, Judge.

Plaintiff/appellant Frances Fincher brought suit against defendant/appellee The Golden Glove Corporation d/b/a The Silver Ribbon Lounge (hereinafter “Silver Ribbon”) seeking recovery for the wrongful death of her husband, who was killed by a patron of the bar on December 24,1983. The jury returned a verdict for the defendant and plaintiff filed motions for new trial and j.n.o.v. This appeal follows the trial court’s denial of plaintiff’s motions.

1. The record shows that plaintiff and her husband, Charles Fincher, were employed as bartenders at the Silver Ribbon. On the date of the fatal shooting Mr. Fincher was tending bar in the back room where pool tables were located. A patron of the bar, Jack Mullinax, apparently became loud and argumentative while playing pool with another patron. Mr. Fincher told him to “either hold the argument down,. . . or he would have to leave.” After warning Mullinax a second time, Mr. Fincher asked him to leave and Mullinax left by the back door.

Mr. Fincher got off work at approximately 3:00 p.m. but decided to remain at the bar as a customer until his wife’s shift ended later that evening. According to the testimony of Mr. Clark, the owner of the bar, Mr. Fincher did not mention the earlier incident with Mullinax when he turned in his receipts at the end of his shift. At approximately 5:30 p.m., Mr. Fincher was talking with Mr. Clark near the front door of the bar. Mullinax, who had re-entered the bar at approximately 4:00 p.m., got up from the front bar where plaintiff was tending bar and walked towards the front door. As he approached Fincher, he pulled a gun from under his jacket and fired several shots, killing Fincher instantly. Clark immediately wrestled Mullinax to the ground, and took the weapon from him.

At trial plaintiff presented evidence that the night bouncer or manager was on vacation and that the defendant’s negligence in not hiring a replacement employee resulted in her husband’s death. Specifically, plaintiff testified that it was the policy of the bar not to let a patron return on the same day he had been ejected and if a bouncer had been on duty Mullinax would never have been allowed back in the bar and her husband would not have been killed. Defendant contended that the incident was unforeseeable and could not have been prevented by the hiring of a replacement employee. The defendant also presented testimony that even if the bouncer had not been on vacation he would not have been on duty at the time of the incident because his shift did not begin until several hours later. Furthermore, Clark testified that he was acting as bouncer at the time of the incident and that he was qualified to act in this capacity. Clark also testified that as a matter of policy Mr. Fincher would tell him or the manager on duty if he had any problems with a customer during his shift and that the decedent never mentioned the incident to him. Plaintiff also testified that whether or not an employee, including her husband, would tell a manager about a problem with a customer depended on the seriousness of the situation. Plaintiff further testified that her husband did not mention the Mullinax incident to her and that she had not noticed any problems with Mullinax although he had been sitting at her bar drinking just prior to the shooting.

“The issues of a directed verdict or judgment n.o.v. are reviewed on the same basis. [Cit.]. ‘(T)he question before this court is not whether the verdict and the judgment of the trial court was merely authorized, but whether a contrary judgment was demanded.’ [Cits.]” Stone v. Cook, 190 Ga. App. 11, 12 (1) (378 SE2d 142) (1989). “ ‘The evidence [here] was conflicting and did not demand a verdict in [plaintiff’s] favor. “Questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and this case was not so plain and indisputable as to justify invading the jury’s province. (Cit.) There being some evidence to support the jury’s verdict, we will uphold the judgment. (Cit.)” (Cit.) This court considers only the sufficiency of the evidence, not its weight. (Cit.)’ [Cit.]” Mathis v. Watson, 187 Ga. App. 100, 101 (4) (369 SE2d 291) (1988), rev’d on other grounds, 259 Ga. 13 (376 SE2d 660) (1989). Consequently, this enumeration affords no basis for reversal.

2. Plaintiff next enumerates as error the trial court’s instructing the jury, upon written request of the defendant, on the law of comparative negligence. Specifically plaintiff contends that such instruction was erroneous because the issue of her husband’s negligence was first introduced during defendant’s closing argument to the jury. However, our review of the record shows that the issue of Fincher’s duty to inform management of any problems with customers, his usual custom in this regard and whether he in fact informed Clark of the earlier incident with Mullinax was interjected into the case by pre-trial deposition testimony as well as evidence presented without objection by both parties during the trial and by the opening and closing arguments of counsel to the jury. See generally Telligman v. Monumental Properties, 172 Ga. App. 783 (1) (323 SE2d 888) (1984). Consequently, we find no merit to this enumeration.

Decided March 12, 1990

Rehearing denied March 26, 1990

John H. Ridley, Jr., for appellant.

Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, D. Gary Lovell, Jr., for appellee.

3. Likewise, we find no merit to plaintiff’s contention that she could have offered evidence showing her husband did inform Clark of the earlier incident had she known it would be an issue at trial.

4. We have examined plaintiff’s remaining enumeration of error and find it to be without merit. The trial court did not err in excluding “expert testimony” on the reputation of the area for violence.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


author: Cooper, Judge. Deen, Presiding Judge,

text:
    A89A2192.
    WILLIAMS v. CORBETT et al.
    (392 SE2d 310)
   Cooper, Judge.

Appellant appeals the reversal by the superior court of a workers’ compensation award granted by the administrative law judge (“ALJ”).

Appellant had lived with the employee for approximately eleven years prior to the employee’s accidental death on the job, although the two had never married, nor had they established a common law marriage. Appellant’s previous marriage ended in divorce; the employee’s previous wife predeceased him. The employee’s paycheck was used by appellant for their mutual support, and consequently the ALJ found that appellant’s partial dependence entitled her to an award under OCGA § 34-9-13 (c) and (d), which allow for an award in cases of actual dependency notwithstanding relation to the employee. The superior court reversed, holding that the ALJ was incorrect in ruling that the law set forth in Ins. Co. of North America v. Jewel, 118 Ga. App. 599 (164 SE2d 846) (1968) and Georgia Cas. &c. Co. v. Bloodworth, 120 Ga. App. 313 (170 SE2d 433) (1969), both of which denied benefits where the dependency arose from a meretricious relationship, applies only in cases involving adultery.

1. In response to appellant’s first enumeration, we find that the superior court did not err in ruling that the ALJ incorrectly applied the law. Although Jewel, supra, involved an adulterous situation, that was not the crux of the holding, which was that when the dependency itself grew out of a meretricious relationship, such as adultery, benefits should be denied. Jewel, supra at 600. See also Rush v. Holtzclaw, 154 Ga. App. 4 (267 SE2d 316) (1980). In Bloodworth, supra, benefits were denied a claimant who had lived with the employee for eight years, without establishing a common law marriage. The claimant had been previously married but had not seen or heard from her husband in over ten years and believed herself to be divorced from him, although that divorce was not finalized. The court, citing Jewel, held that the facts “made it unnecessary to consider the effect of the presumption of death, and additional findings related to the removal of the disability of a prior undissolved marriage are therefore surplus-age. Under the circumstances, . . . the claimant was not entitled to compensation even if she was actually dependent on the employee. [Cit.]” Bloodworth, supra at 314-315. Thus, the court indicated that the possible , adulterous nature of the relationship was not of import — the meretricious relationship itself resulted in a denial of benefits, even if actual dependency existed. As it is undisputed that appellant and the employee were not married, either ceremonially or by common law, and as appellant’s claim of dependency arises from such relationship, appellant is not entitled to a workers’ compensation award.

2. Appellant’s second enumeration, that the superior court erred in not following the language of OCGA § 34-9-13 (d), is likewise without merit. Although the text of the statute provides for a factual determination of dependency in situations other than those specified elsewhere, the statute is subject to the judicial limitations established in Jewel and Bloodworth. The legislature has not indicated otherwise.

3. In light of the uncontested facts of this case, we reject the third enumeration that the claimed dependency did not arise from a meretricious relationship.

Judgment affirmed.

Birdsong, J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

While concurring fully with the majority opinion, it is acknowledged that in the instant case only possible potential criminal fornication is involved, while criminal adultery was involved in Insurance Co. of North America v. Jewel, 118 Ga. App. 599 (164 SE2d 846) (1968), the latter case being the authority for the case now before us.

Decided March 13, 1990

Rehearing denied March 26, 1990

O. Wayne Ellerbee, for appellant.

George T. Talley, Evans & Evans, Larry K. Evans, Michael J. Bowers, Attorney General, Harrison Kohler, Deputy Attorney General, Wayne P. Yancey, Senior Assistant Attorney General, K. Prabhaker Reddy,, for appellees.

In Jewel, at 604 and 605, Judge Hall pertinently pointed out a pithy dissent, “An actual dependent is a dependent in the same way a rose is a rose.” He further states, “Neither the board nor the courts are empowered under the Act to go on a puritanical witch hunt with the avowed purpose of scouring the claimant’s so-called unclean hands,” and concludes by stating that “a reversal grounded upon the claimant’s so-called morals casts this court into the role of Keystone Cops.”

Nevertheless, we are bound by the majority opinion in Jewel and cannot ignore what was said by Judge Eberhardt in his special concurrence at 603, particularly as to the “legal or moral obligation of the employee, as toward the one claiming dependencyPossible potential criminal fornication and criminal adultery, which have to do with legal and moral acts, may be considered in the best-interests-of-the-child findings in custody and parental termination cases. Gibson v. Pierce, 176 Ga. App. 287 (335 SE2d 658) (1985) (aff'd 255 Ga. 525 (342 SE2d 467) (1986)). Likewise legal and moral conduct relating to dependency are required by these authorities to be considered in situations as in this present workers’ compensation case.


author: Deen, Presiding Judge. Cooper, Judge,

text:
    A89A2231.
    THE STATE v. PATRICK.
    (392 SE2d 342)
   Deen, Presiding Judge.

The State appeals from the grant of Patrick’s motion to suppress evidence seized from the area where he was arrested.

The record shows that at 10:30 p.m. police officers went to a specific location in a housing project in response to a complaint of drug trafficking presently occurring at that location, and found Patrick congregating with a “bunch of guys.” Patrick and the others bolted when they noticed the presence of the police officers. Patrick was then observed attempting to conceal himself behind a building, and ran again when the officers approached him to inquire why everyone had run off. Despite jettisoning 33 rocks of crack cocaine and $420 cash, however, Patrick could not outrun the officers, and he was charged with possession of cocaine with intent to distribute.

In State v. Billoups, 191 Ga. App. 834 (383 SE2d 198) (1989), a police officer on routine patrol at 2:20 a.m. in a neighborhood characterized as a “highly drug populated area” came upon Billoups conversing with another man at a street corner. When Billoups and his companion observed the patrol car, they both “broke and ran.” The police officer chased after Billoups on foot and eventually apprehended him. A pat-down search revealed a film canister containing crack cocaine, resulting in Billoups being charged with possession of cocaine with intent to distribute. This court subsequently concluded that, considered in the context of the time of day and the location, Billoups’ flight from the officer provided probable cause for the warrantless arrest.

The facts of the instant case provide even a stronger basis for finding probable cause than the facts in Billoups. The fact that Patrick lived in the housing project and the fact that the transaction took place at 10:30 p.m. instead of 2:30 a.m., are inconsequential differences. In short, under Billoups, the trial court erred in granting Patrick’s motion to suppress.

Judgment reversed.

Birdsong, J., concurs. Cooper, J., concurs specially.

Cooper, Judge,

concurring specially.

I concur with the majority’s conclusion that the trial court erred in granting Patrick’s motion to suppress, but write separately because I reach the same conclusion in a different way. The majority relies on State v. Billoups, 191 Ga. App. 834 (383 SE2d 198) (1989), in which this court concluded that where a man, conversing with another man during the early morning hours in a “highly drug populated area,” broke and ran upon seeing police officers, the officers from whom he ran had probable cause to believe that he was in possession of contraband. Because I strongly disagree with the holding in Billoups, I cannot concur fully with the majority opinion. However, in the case at bar, the record shows that the officers received a complaint about drugdealing at a specific housing project; that the officers observed appellee run away as they approached; that as the officers chased appellee he discarded a plastic bag which appeared to be crack cocaine; that as the officers continued chasing appellee he discarded another bag which contained money. Based on these facts, I conclude that the officers had a reasonable suspicion to believe that Patrick was involved in criminal activity and were justified in stopping appellee. However, in the absence of such a justifiable suspicion, I could not conclude that a person’s mere presence in a “highly drug populated area” and subsequent flight upon seeing police, provides any basis for any kind of police-citizen encounter other than, at most, a verbal encounter involving no coercion or detention. ^

Decided March 16, 1990

Rehearing denied March 26, 1990

Michael C. Eubanks, District Attorney, Richard E. Thomas, Barbara A. Smith, Assistant District Attorneys, for appellant.

Bobby H. Barton, for appellee.


text:
    A89A2321.
    MILLER v. THE STATE.
    (392 SE2d 334)
   Cooper, Judge.

Appellant was convicted of enticing a child for indecent purposes, two counts of child molestation and three counts of aggravated sodomy.

The evidence presented at trial showed that appellant met the victim, a thirteen-year-old boy with an I.Q. of 51, at the church appellant and the victim’s family attended. Appellant befriended the victim, and the victim’s parents allowed him to spend weekends with appellant. On the weekend before the victim’s fourteenth birthday, appellant took the victim to appellant’s house and showed him x-rated videotapes and sexually explicit publications. Appellant committed oral sodomy on the victim, and the next evening the victim committed oral sodomy on appellant while appellant took a picture of the act. Appellant also made the victim place his hand on appellant’s penis and stimulate appellant to climax. The victim testified that he was afraid of appellant because appellant owned two rifles and because appellant threatened to beat him if he did not perform the acts.

Although these incidents happened in May 1988, the victim did not tell his parents what had happened until August 1988. The victim’s parents reported the incident to the police who immediately executed a search warrant on appellant’s residence for the sexually explicit videotapes and publications. The investigating officer testified that he read appellant his Miranda rights while the officers searched appellant’s house and appellant indicated that he understood them; that after appellant agreed he would accompany the officers to the police station to talk, he was read his rights again; that when appellant was asked to sign a waiver of rights he said that he “might want an attorney”; that all questions stopped after appellant’s remark. The police seized various sexually explicit tapes, magazines, and paraphernalia. Once at the police station, the officers asked appellant again if he wanted an attorney and appellant responded that he did not. Appellant then signed a written waiver of rights in the presence of the officers, and gave a statement, which he signed. In his statement appellant admitted the sexual acts with the victim, but claimed they were initiated by the victim.

1. Appellant enumerates as error the trial court’s denial of his motion to suppress. Appellant’s statement was admitted after a Jackson-Denno hearing. The evidence at the hearing shows that the officers read appellant his rights three times. The second time appellant indicated that he “might want an attorney.” At that time all questioning was stopped and, after appellant voluntarily accompanied the officers to the police station, the officers clarified whether appellant wanted an attorney by again reading appellant his rights. Appellant then signed a waiver of rights and made a statement. The issue is the effect of appellant’s initial remark that he “might want an attorney.” Appellant’s remark “ ‘was not a clear invocation of his Fifth Amendment right to the presence of counsel, but it was at (most) an arguably ambiguous or inartful request of that type.’ [Cit.]” Bryant v. State, 186 Ga. App. 142, 143 (366 SE2d 810) (1988). The officers stopped questioning appellant upon his remark and did not resume questioning until they had explained his rights to him again and he signed a waiver. We find no error with the trial court’s denial of appellant’s motion to suppress. Accord McKenzie v. State, 187 Ga. App. 840 (5) (371 SE2d 869) (1988).

2. We further conclude that the trial court correctly denied appellant’s motion to suppress evidence seized at his residence. Appellant contends that the time frame in the affidavit securing the search warrant did not provide a basis upon which the magistrate could have concluded that the items sought were presently at the named location, and that the information therein was stale because 95 days had elapsed from the time the victim stated he had last observed an X-rated movie until the time the warrant was issued. “Time is assuredly an element of the concept of probable cause. [Cit.] However, the precise date of an occurrence is not essential. Rather, the inquiry is as to whether the factual statements within the affidavit are sufficient to create a reasonable belief that the conditions described in the affidavit might yet prevail at the time of issuance of the search warrant. [Cit.]” State v. Luck, 252 Ga. 347 (312 SE2d 791) (1984).

The investigating officer averred that he had reason to believe that appellant kept a large quantity of sexually oriented material in his home, which was evidence of the crimes charged in that it showed the bent of mind of the suspect as well as evidence of an ongoing scheme to possess and retain such sexually explicit matter. Furthermore, the nature of the items was not consumable and the affidavit was issued only three months after the occurrence of the crimes charged and within days of the report being made to the authorities. Accordingly, we find that the requisite substantial basis for probable cause existed. See Bayles v. State, 188 Ga. App. 437 (373 SE2d 266).

3. After the jury had deliberated for some three hours, the trial court without request and over objection of defense counsel decided to recall the jurors and instruct them on the lesser included offense of simple sodomy. The jury reached its verdict about an hour later, and appellant contends that giving the recharge was an abuse of discretion because its undue weight and emphasis “catalyzed a verdict from an otherwise hung jury.” We do not agree.

“ ‘The court has a perfect right, after the jury has retired to consider its verdict, to call the jury back into the courtroom and either give further instructions which have been omitted through oversight or, on receiving a request for further instructions, to give such reply as the facts may warrant.’ [Cit.]” Turner v. State, 178 Ga. App. 888 (3) (345 SE2d 99) (1986).

Moreover, appellant can show no harm because he admitted having performed oral sodomy with the victim and thus the charge on the lesser included offense was favorable to him. “ ‘Since the recharge [on simple sodomy] was not only warranted by the evidence but also legally accurate and not confusing or misleading as to amount to an abuse of discretion, we find no error.’ ” Litmon v. State, 186 Ga. App. 762 (368 SE2d 530) (1988).

4. In his fourth enumeration of error, appellant contends that the trial court erred in charging the jury that sexual acts directed to a child under the age of fourteen are by law forcible and against the will of the victim. “The definition of ‘force’ that applies in rape cases also applies in aggravated sodomy cases. [Cit.] The force need not be actual violence, but can be an ‘overpowering’ influence. . . .” Treadaway v. State, 191 Ga. App. 111 (3) (381 SE2d 43) (1989). The victim testified that appellant made him perform the sexual acts and threatened to beat him if he did not perform the acts. The victim also testified that he knew appellant kept guns in the house. There was sufficient evidence from which the jury could find the necessary force to convict appellant of aggravated sodomy. Thus, any error in the giving of the charge was harmless.

5. The trial judge gave a full and complete charge on alibi taken from the suggested pattern jury instructions for criminal cases. Appellant contends that the court erred in refusing to charge, as requested, that he presented evidence that he did not see the victim on the weekend in question. “However, the charge as given adequately covered the principles articulated in [the requested] charge. There was no error in failing to charge in the language requested by [appellant]. [Cits.]” Gunn v. State, 190 Ga. App. 415 (2) (379 SE2d 222) (1989). Accord Shy v. State, 190 Ga. App. 370 (4) (378 SE2d 920) (1989).

Decided March 15, 1990

Rehearing denied March 26, 1990

H. Samuel Atkins, Jr., for appellant.

Harry N. Gordon, District Attorney, Steve C. Jones, Assistant District Attorney, for appellee.

6. Appellant argues that the evidence was insufficient to support his conviction of aggravated sodomy. For the reasons discussed in Division 4, we find that the evidence was sufficient for a rational trier of fact to have found appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur. Deen, P. J., also concurs specially.

Deen, Presiding Judge,

concurring specially.

I concur fully with the majority opinion and add that it is apparent from the facts in this case that the planning and programming of the perpetration of the several sex crimes were pointedly predicated on the pornographic photos, pictures, prints, and publications, which exhibits comprise almost one-half of the transcript and record. See Boatright v. State, 192 Ga. App. 112, 120 (385 SE2d 298) (1989); Horne v. State, 192 Ga. App. 528, 536 (385 SE2d 704) (1989).


text:
    A89A2353.
    NELSON et al. v. FELTON PEARSON COMPANY, INC. et al.
    (392 SE2d 274)
   Cooper, Judge.

We granted appellant’s application for discretionary appeal from the superior court’s reversal of an award of the full board of workers’ compensation. The sole enumeration of error is whether the award should have been affirmed by operation of law pursuant to OCGA § 34-9-105 (b) (prior to 1989 amendments).

OCGA § 34-9-105 (b) provides that upon appeal by either party of a final award of the board, the board shall transmit the record to the clerk of the appropriate superior court within 30 days. The statute further provides that: “The case so appealed may then be brought by either party upon ten days’ written notice to the other before the superior court for a hearing upon such record, subject to an assignment of the case for hearing by the court; provided, however, if the court does not hear the case within 60 days from the date the notice of appeal is filed with the board, the decision of the board shall be considered affirmed by operation of law unless a hearing originally scheduled to be heard within the 60 days has been continued to a date certain by order of the court.” .

The record shows that although appellee’s notice of appeal from the award of the full board was filed on December 7, 1988, the clerk of the Superior Court of Fulton County did not receive the record from the board until 38 days later on January 13,1989. Shortly thereafter appellee’s attorney contacted the calendar clerk to schedule a hearing and on January 27, 1989, received notice that a hearing had been scheduled for February 28, 1989. Because the last day on which a hearing could be scheduled within the 60-day time period mandated by OCGA § 34-9-105 (b) was February 6, 1989, appellee’s attorney, on January 27, 1989, contacted the calendar clerk, had the hearing rescheduled for February 3, 1989, and hand-delivered a notice of the hearing for February 3, 1989 to appellant’s attorney. On February 3, 1989, appellant’s attorney objected to the hearing on the ground that he had not received the statutorily-required ten-day written notice, and further argued that because of the insufficient notice the full board’s award had been affirmed by operation of law. The trial court continued the hearing to February 10, 1989, and on that day after hearing argument, reversed the award of the board.

Appellant argues that because the February 3 hearing was improperly scheduled due to appellee’s failure to give ten days’ written notice, there could be no valid continuance of the hearing. We agree. We recognize, in accepting appellant’s argument, that neither party is at fault, and that by adhering to the strict language of the statute there may be situations where the superior court could never schedule a timely hearing (such as where the Board does not transmit the record until more than 50 days after the notice of appeal has been filed). However, we find this alternative better than holding, as appellee argues, that as long as a hearing is originally scheduled within the 60-day period, regardless of the lack of statutorily-required notice to the other party, the hearing can be continued to meet the requirements of the statute. Accordingly, we find that the full board’s award was affirmed by operation of law because of the failure of the superior court to hear the case within 60 days of the filing of the notice of appeal.

Judgment reversed and order vacated.

Deen, P. J., and Birdsong, J., concur.

Decided March 5, 1990

Rehearing denied March 26, 1990

Saveli & Williams, John M. Williams, Richard G. Farnsworth, for appellants.

Bovis, Kyle & Burch, D. Scott McPherson, Steven J. Kyle, Terry L. Yewell, Christina A. Craddock, Charles M. McDaniel, Jr., for appellees.


author: Banke, Presiding Judge.

text:
    A90A0008.
    KERSEY v. C.S.R.A. ECONOMIC OPPORTUNITY AUTHORITY, INC.
    (392 SE2d 305)
   Banke, Presiding Judge.

This is an appeal from a grant of summary judgment to the defendant in a slip-and-fall action.

The defendant is a non-profit corporation which distributes surplus food commodities to the elderly in Emanuel County, using the 4-H Club building as a distribution center. To facilitate the distribution process, the program participants queue up at the entrance ramp to the building, obtain the food commodities inside the facility, and exit through the rear door. Directly outside the rear door is a concrete stairway consisting of five steps, equipped with a handrail on either side. The plaintiff slipped and fell as she was descending this stairway while holding two bags of food given to her by the defendant. She acknowledged that she had exited the building using that particular stairway on at least one prior occasion, and she does not allege that there was any defect in the design or structure of the stairway itself. However, she contends that the defendant negligently exposed her to danger by sending her down this stairway while she was carrying, in her words, a “heavy load.” Held:

Landowners or occupiers of land are not insurers of the safety of their invitees. Watson v. C & S Bank, 103 Ga. App. 535, 536 (120 SE2d 62) (1961). “ ‘Falling and injuring one’s self proves nothing. Such happenings are commonplace wherever humans go.’ [Cit.] In order for a plaintiff to recover, two elements must be proven: ‘(1) Fault on the part of the owner, and (2) ignorance of the danger on the part of the invitee. The basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn (the invitee) and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of (this) knowledge, assumes the risks and dangers incident to the known condition.’ [Cit.] ‘As was observed in Gibson v. Consolidated Credit Corp., 110 Ga. App. 170 (138 SE2d 77) [1964], there should be no duty to warn of the perfectly obvious such as posting a sign on a stairwell that “These are steps. . . .” [Cit.]’ ” Gyles, Inc. v. Turner, 184 Ga. App. 376, 377 (361 SE2d 538) (1987). Moreover, “[t]he fact that [the plaintiff] had a package in her hands when she departed is not material.” Garnett v. Mathison, 179 Ga. App. 242, 243 (345 SE2d 919) (1986).

Decided March 12, 1990

Rehearing denied March 26, 1990.

Cheney & Cheney, Curtis V. Cheney, Jr., for appellant.

Dye, Miller, Tucker & Everitt, Mark W. Wortham, A. Rowland Dye, for appellee.

Because there is no contention in the present case that the steps were defective and because the plaintiff clearly was as aware as the defendant of the alleged hazard which caused her to fall, we affirm the trial court’s grant of summary judgment to the defendant.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.