author: Beasley, Judge.

text:
    A98A1639.
    EMPIRE FIRE & MARINE INSURANCE COMPANY v. METRO COURIER CORPORATION et al.
    (507 SE2d 525)
   Beasley, Judge.

Empire Fire & Marine Insurance Company brought this declaratory judgment action against its insured (Metro Courier Corporation) and Metro’s employee (Marcus Saucer) to determine the insurance policy’s coverage of an accident involving a Metro van driven by Saucer. The two issues on appeal are (i) whether the court erred in dismissing the action where Empire had denied coverage, Empire had refused to provide Metro a defense in a suit brought by the injured parties, and a judgment had been entered in that suit, and (ii) whether the dismissal should have been with prejudice.

Factual and Procedural Background

The uncontroverted affidavits and evidence of record, which are appropriately considered in motions to dismiss for lack of jurisdiction, show the following.

While driving a Metro van, Saucer collided with Mr. and Mrs. Harris, injuring them severely. The Harrises sued Metro and Saucer (the “damage action”) and demanded from Empire that it pay its policy limit, of $1 million. Empire declined, stating its policy did not cover this accident nor this van. Empire refused to provide Metro with a defense to the damage action, even after it entered into a mutual reservation of rights agreement with Metro. Metro provided its own defense and contended that Saucer was acting outside the scope of his employment at the time of the accident.

Six months after the damage action commenced, Empire filed this declaratory judgment action, claiming that because it believed Saucer acted outside the scope of his employment and the van was not listed in the policy, it needed judicial direction as to whether its policy covered the accident. In its petition, it requested a stay of the damage action, but it never filed a motion nor obtained a stay order.

Eight months later the damage action was arbitrated, and judgment exceeding $3 million was entered. As assignees of Metro, the Harrises sued Empire in an action on the judgment for the insurance money, which remains pending. Empire concedes that the “same coverage issues raised in the present action, including whether Empire had a duty to defend, are at issue” in the action on the judgment.

1. The Declaratory Judgments Act does not permit advisory opinions. “The purpose of the . . . Act is ‘to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.’ OCGA § 9-4-1. However, ‘where the rights of the parties have already accrued and there are no circumstances showing any necessity for a determination of the dispute to guide and protect the plaintiff from uncertainty and insecurity with regard to the propriety of some future act or conduct, which is properly incident to his alleged rights and which if taken without direction might reasonably jeopardize his interest, the plaintiff is not entitled to a declaratory judgment.’ ”

Alleging some future conduct of the petitioner about which it is uncertain is an “essential ingredient,” the absence of which will result in dismissal of the petition. Empire fails to identify any such future actions, and the undisputed evidence reflects there are none.

(a) Coverage denied. “When . . . the company denies coverage before it seeks guidance under the declaratory judgment, it has no need for direction from the court. . . . Having thus denied coverage, the insurer removes any doubt as to its duties under the contract of insurance and the insurer’s firm decision is that it has no duty and, thus, is not met with uncertainty as to future acts. Declaratory judgment, therefore, would not lie in [such a] case.”

Empire claims it did not deny coverage. The uncontroverted evidence of record is otherwise. Empire wrote the Harrises: “Empire’s policy does not provide coverage for this accident. In short, the 1986 Plymouth Voyager involved in the accident was not a covered auto. Accordingly, [your] demand is rejected.” Empire reiterated this position to Metro both verbally and in the reservation of rights agreement.

(b) Defense denied. Even if Empire’s statements about denying coverage could be deemed equivocal, its refusal to provide Metro a defense cannot. Although an insurer does not “expressly determine prior to the entry of judgment that no coverage was afforded to its insured ...[,] the failure to provide a defense to the damage action against the insured is equivalent to the denial of coverage.” An insurer’s failure to defend the damage action alone removes the underpinnings of a declaratory judgment action on the policy, for “the insurer is not faced with the uncertainty and insecurity of making a jeopardizing election to enter into the defense of its alleged insured or to refuse to do so; suit looms against the insurer itself and its own defenses to liability can be presented without jeopardy when suit is entered by the claimant.”

Without citing any evidence, Empire claims that after the damage action was filed it provided Metro a defense in that it promised to reimburse Metro for its defense costs if coverage were found. Not only is such a promise meaningless, as Empire was already obligated to reimburse Metro if coverage were found, but there is no evidence of such a promise.

(c) Judgment entered. A third death knell is the fact that judgment has been entered in the damage action. This moots the declaratory judgment action. “All rights have accrued; the insurer is either liable under the terms of its policies for the judgment entered against its insured or it is not. The insurer faces no risk of taking future undirected action; its defenses can be presented when suit is entered by the third-party claimant,” as has occurred.

Empire contends that the filing of the declaratory judgment action before entry of the judgment changes this rule. It argues that allowing the judgment to moot the declaratory judgment action would encourage a race to judgment. But events after the filing of a declaratory judgment action have often mooted the action. Regardless of when an action reaches that posture, it is still an action which presents no justiciable controversy because the issue (whether to defend) has become dead or academic. A decision would have no practical effect. That would occur when, for example as is the case here, the matter in dispute has already been resolved. The issue of whether it is liable for the judgment does not present an issue for declaratory judgment because that issue does not relate to future undirected action.

Second, the entry of the judgment likely would not have occurred if Empire had pursued a stay of the damage action pending final resolution of the declaratory judgment action. When filing the declaratory judgment action five months after notice of the damage action, Empire did not move to stay the damage action. Burying a stay request in the declaratory judgment petition is ineffectual.

Without citing any evidence, Empire claims the arbitration was not adversarial but instead was a sham. We do not consider unsupported assertions. Moreover, Empire can and apparently has made this charge in the suit on the judgment.

Dismissal of the declaratory judgment action was not error.

2. Nevertheless, it was error to dismiss the action with prejudice.

“A dismissal with prejudice operates as an adjudication on the merits.” A dismissal of a declaratory judgment action on the ground the petitioner needs no direction from the court as to future action is a dismissal for want of subject matter jurisdiction. An involuntary dismissal for lack of subject matter jurisdiction does not operate as an adjudication on the merits. Accordingly, dismissals of declaratory judgment actions for want of justiciability should be without prejudice.

Decided October 8, 1998

Gray, Hedrick & Edenfield, William E. Gray II, L. Bruce Hedrick, Amanda H. Burri, for appellant.

Nix & Commander, Scott C. Commander, Walbert & Mathis, Charles A. Mathis, Jr., William J. Cobb, Herald J. A. Alexander, for appellees.

This case is remanded to the trial court for entry of an order consistent with this opinion.

Judgment affirmed in part and reversed in part and remanded with direction.

Pope, P. J., and Ruffin, J., concur.

       See OCGA § 9-11-12 (d); Marvin L. Walker & Assoc. v. A. L. Buschman, Inc., 147 Ga. App. 851, 852 (1) (250 SE2d 532) (1978); McLendon v. Albany Warehouse Co., 203 Ga. App. 865, 866 (1) (418 SE2d 130) (1992).

       (Citations omitted.) Morgan v. Guaranty Nat. Cos., 268 Ga. 343, 344 (489 SE2d 803) (1997); see Mayor &c. of Athens v. Gerdine, 202 Ga. 197 (1) (42 SE2d 567) (1947).

        City of Summerville v. Sellers, 82 Ga. App. 361 (61 SE2d 160) (1950); see Atlanta Cas. Co. v. Fountain, 262 Ga. 16, 18 (413 SE2d 450) (1992) (“declaratory judgment is not available where a judgment cannot guide and protect the petitioner with regard to some future act”); Adams v. Atlanta Cas. Co., 225 Ga. App. 482, 484 (1) (484 SE2d 302) (1997) (“[w]hen a declaratory judgment cannot guide and protect the petitioner regarding a future act, no declaratory judgment is authorized”) (citation omitted).

       (Citations and punctuation omitted.) Adams, supra, 225 Ga. App. at 485 (1); see Fountain, supra, 262 Ga. at 18 (“declaratory judgment is not available where a judgment cannot guide and protect the petitioner with regard to some future act — as where an insurance company has already denied a claim”) (citations omitted); Reliance Ins. Co. v. Brooks Lumber Co., 101 Ga. App. 620, 621 (115 SE2d 271) (1960) (declaratory judgment action unavailable where insurance company has already denied claim).

       (Citation omitted.) Morgan, supra, 268 Ga. at 344.

       (Citation omitted.) Shield Ins. Co. v. Hutchins, 149 Ga. App. 742, 744 (2) (256 SE2d 108) (1979); see Morgan, supra, 268 Ga. at 345-346 (refusal to provide defense eliminates need for declaration as to future action); State Farm Mut. Auto. Ins. Co. v. Hillhouse, 131 Ga. App. 524, 526 (2) (206 SE2d 627) (1974) (failure to provide defense in damage action is fatal to declaratory judgment action); Gant v. State Farm Mut. Auto. Ins. Co., 109 Ga. App. 41, 43 (134 SE2d 886) (1964) (“if State Farm has failed or refused to afford a defense to the damage action because it has made the determination that no coverage was afforded under its policy the rights, if any, of the parties had accrued before the declaratory judgment action was filed and the insurer needs no declaration to guide it as to any future action”).

       (Citations and punctuation omitted.) Morgan, supra, 268 Ga. at 345; see Lumbermens Mut. Cas. Co. v. Moody, 116 Ga. App. 2, 5 (1) (156 SE2d 117) (1967) (judgment in damage action moots declaratory judgment action); Travelers Indem. Co. v. Hood, 110 Ga. App. 855, 858 (2) (140 SE2d 68) (1964) (same).

       See, e.g., In the Interest of I. B., 219 Ga. App. 268 (464 SE2d 865) (1995) (physical precedent only) (expunging father’s name from child abuse registry mooted father’s declaratory judgment action regarding constitutionality of registry statute); Leader Nat. Ins. Co. v. Kemp & Son, 189 Ga. App. 115, 118-119 (4) (375 SE2d 231) (1988) (insurer’s withdrawal of defense in damage action mooted pending declaratory judgment action on policy), aff’d, 259 Ga. 329 (380 SE2d 458) (1989); Benton v. Gwinnett County Bd. of Ed., 168 Ga. App. 533, 534 (309 SE2d 680) (1983) (running of student’s suspension and his withdrawal from school mooted declaratory judgment action on constitutionality of suspension procedures); Consolidated Quarries Corp. v. Davidson, 79 Ga. App. 248, 250 (53 SE2d 231) (1949) (expiration of contract mooted declaratory judgment action on contract).

       The appellate court, too, is required to dismiss appeals that become moot. OCGA § 5-6-48 (b) (3).

       See Richmond v. Ga. Farm &c. Ins. Co., 140 Ga. App. 215, 219 (1) (231 SE2d 245) (1976).

       (Emphasis omitted.) Marchman & Sons v. Nelson, 251 Ga. 475, 477 (306 SE2d 290) (1983); Hosp. Auth. of Calhoun County v. Walker, 224 Ga. App. 163, 164 (2) (480 SE2d 849) (1996).

        Ridgeview Institute v. Brunson, 191 Ga. App. 608, 610 (382 SE2d 409) (1989); Allstate Ins. Co. v. Shuman, 163 Ga. App. 313, 315 (3) (293 SE2d 868) (1982); see Adams, supra, 225 Ga. App. at 485 (1); cf. Kaylor v. Kaylor, 236 Ga. 777, 778 (225 SE2d 320) (1976).

       OCGA § 9-11-41 (b) (2); Taco Bell Corp. v. Calson Corp., 190 Ga. App. 481, 483 (379 SE2d 6) (1989).

       See, e.g., Savannah Theatres Co. v. First Fed. Sav. &c. Assn., 93 Ga. App. 487, 490 (92 SE2d 217) (1956); Sellers, supra, 82 Ga. App. at 361.

       See Lloyd v. Whitworth, 210 Ga. App. 714, 715 (437 SE2d 636) (1993).


source: Caselaw Access Project

author: McMURRAY, Presiding Judge.

license: Public Domain

text:
    A99A0170.
    SYMS v. WEST.
    (507 SE2d 530)
    Decided October 8, 1998
    Leroy Syms, pro se.

   McMURRAY, Presiding Judge.

Leroy Syms, a prison inmate, filed this pro se tort action against Phillip R. West, a superior court judge, to recover court costs Syms was required to pay in another proceeding. On July 27, 1998, the action was dismissed because Syms failed to file a mandatory ante litem notice and because of Judge West’s judicial immunity. Syms filed this direct appeal. Held:

Under OCGA § 42-12-8, the discretionary appeal procedures are required in civil actions filed by inmates. Jones v. Townsend, 267 Ga. 489 (480 SE2d 24). Because of Syms’ failure to comply with those requisite discretionary procedures, this appeal must be dismissed for lack of jurisdiction.

Appeal dismissed.

Andrews, C. J., and Ruffin, J., concur.

Thurbert E. Baker, Attorney General, John C. Jones, Senior Assistant Attorney General, for appellee.


author: McMurray, Presiding Judge.

text:
    A99A0272.
    JOHNSON v. THE STATE.
    (507 SE2d 529)
    Decided October 8, 1998.
    Willie G. Johnson, pro se.

      Peter J. Skandalakis, District Attorney, Kevin W. Drummond, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant Willie Gene Johnson’s conviction for possession of cocaine with intent to distribute was affirmed on direct appeal. Johnson v. State, 230 Ga. App. 535 (496 SE2d 785). On May 19, 1998, the trial court entered a “SENTENCING ORDER” purporting to make a “clerical correction to the [previous] written order to make it conform with the actual sentence [orally] imposed by the court,” namely that, because of prior felonies, defendant was ineligible for parole under the provisions of OCGA § 17-10-7. Proceeding pro se, on July 20, 1998, defendant filed a notice of appeal from “the lower courts [sic] ruling. . . Held:

The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court. Rowland v. State, 264 Ga. 872 (1) (452 SE2d 756). OCGA § 5-6-38 (a) requires that a “notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of.” The July 20, 1998 notice of appeal from the May 19, 1998 “SENTENCING ORDER” is not timely. In the absence of a timely filed notice of appeal, this Court is without jurisdiction to consider the merits of the case, and the appeal in Case No. A99A0272 must be dismissed. Coles v. State, 223 Ga. App. 491, 492 (2) (477 SE2d 897).

Appeal dismissed.

Andrews, C. J., and Ruffin, J., concur.


author: Ruffin, Judge.

text:
    A98A0898.
    HIGH v. PARKER et al.
    (507 SE2d 530)
   Ruffin, Judge.

Christopher High sued Ronnie E. Parker and Dennis Truck Lines, Inc. for injuries High sustained when he was involved in a traffic accident with Parker. The jury returned a verdict for the defendants, and the trial court denied High’s motion for new trial. High appeals the denial of his motion for new trial, contending that the verdict was not supported by the evidence. We affirm.

1. High’s first enumeration asserts that the trial court erred in denying the motion for new trial because the jury’s verdict was contrary to the evidence. See OCGA § 5-5-20. In considering this enumeration, our review is limited to determining whether there was any evidence to support the verdict. Adler v. Adler, 207 Ga. 394, 405 (7) (61 SE2d 824) (1950). “It is of no consequence on review of the denial of a motion for new trial based on the sufficiency of the evidence that the evidence adduced at trial would have authorized a verdict for either party. A reviewing court must view the evidence in a light most favorable to upholding the jury’s verdict and any evidence which supports the jury’s verdict is sufficient to sustain the trial court’s denial of a motion for new trial based on the sufficiency of the evidence.” (Citations and punctuation omitted.) Stubbs v. Harmon, 226 Ga. App. 631, 632 (1) (a) (487 SE2d 91) (1997).

Viewed in the light most favorable to the verdict, the evidence showed that, on September 22, 1993, Parker and High were both traveling northbound on Georgia Highway 113. Parker was driving a tractor-trailer truck leased by Dennis Truck Lines, his employer. At some point before the accident, High passed Parker’s truck. High continued along the highway until he prepared to make a left-hand turn into the driveway of a mobile home park.

Parker saw High’s vehicle ahead of him when Parker crested a hill, approximately 300 feet south of the driveway. Parker testified that his truck was in seventh gear at the time, which provides for a top speed of about 55 mph. Parker testified that, when he saw High, High was moving at about 35-40 mph. There was evidence that the taillights and turn signal on High’s vehicle were not operational, and Parker testified that High did not signal with his arm that he was going to make a left turn. Parker started to pass High on the left, but High started to veer to the left, suggesting to Parker that High was going to make a turn. Parker then moved back to the right lane, and High also moved back to the right lane. Parker started to pass High a second time, but High began turning left again. Parker tried to turn back to the right, but collided with High’s vehicle.

The posted speed limit at the accident site was 55 mph. Tom Vadnais, an accident reconstruction expert, testified that, based upon skid marks and other factors, Parker’s speed was between 52.3 and 61.8 mph when he began to brake. He further testified that Parker’s speed would not have made any difference as to whether the accident would have occurred. The state patrol officer who investigated the accident also testified that, in his opinion, the accident would have occurred whether Parker was going 55 or 60 mph.

Decided October 9, 1998.

C. Victor Long, for appellant.

Hawkins & Parnell, Barry S. Noeltner, Warner S. Fox, for appellees.

There was evidence that Parker was certified to drive a tractor-trailer only while wearing corrective lenses, and that he was not wearing such lenses at the time of the accident. However, the jury could have concluded that this did not contribute to the accident. Dr. Brown, the physician who performed a DOT evaluation of Parker, testified that driving without glasses would primarily limit Parker’s ability to read road signs at a distance, but that he should be able to see other vehicles in front of him without much difficulty.

Viewed in the light most favorable to the verdict, there clearly was evidence from which the jury could have concluded that the accident was not the result of Parker’s negligence. Instead, the jury could have concluded that the accident was proximately caused by High’s failure to properly signal his intention to make a left turn. Although the evidence might have supported a verdict for High, the jury found otherwise, and since there was evidence to support that determination the trial court did not err in denying High’s motion for new trial. Stubbs, supra.

2. In his final two enumerations, High contends the trial court erred in denying his motion for new trial because the verdict was decidedly and strongly against the weight of the evidence and contrary to law and principles of justice. See OCGA § 5-5-21. Howevér, neither of these enumerations presents an issue reviewable by this Court. “The discretion to set aside a verdict on the ground that it is decidedly and strongly against the weight of the evidence or is contrary to the principles of justice and equity rests solely with the trial judge, and the appellate courts are not vested with such discretion. See generally OCGA §§ 5-5-20; 5-5-21. Consequently, [High’s] . . . enumeration^] of error present[ ] nothing for review.” (Citations omitted.) Perfect Image v. M & M Elec. Constructors, 191 Ga. App. 605, 608 (5) (382 SE2d 405) (1989).

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.

       High also sued Roger Weinhold, the owner of Parker’s vehicle, and Reinsurance Corporation of New York, the vehicle’s insurer. However, High voluntarily dismissed his claims against Reinsurance Corporation prior to trial, and the trial court granted Weinhold’s motion for directed verdict at the close of evidence.


text:
    A98A1470.
    SIMS v. THE STATE.
    (507 SE2d 845)
   Beasley, Judge.

William James Sims, Jr. was convicted of aggravated assault with a deadly weapon (OCGA § 16-5-21 (a) (2)), aggravated assault with intent to murder (OCGA § 16-5-21 (a) (1)), aggravated battery (OCGA § 16-5-24), and two counts of cruelty to children (OCGA § 16-5-70 (b)) arising out of his attempt to kill the mother of his children with a knife. He was sentenced to 20 years confinement for aggravated assault and 20 years confinement for aggravated battery to be served concurrently. The court merged the count of aggravated assault with intent to murder and the count of aggravated battery. Sims was given two ten-year sentences for cruelty to children, to run concurrently, but consecutive to his twenty-year sentences. He appeals only the convictions of cruelty to children, claiming (i) there was insufficient evidence to support the convictions and (ii) the court erred in allowing hearsay from one of the children.

Construing the evidence in favor of the verdict, Sims and Dovie Kelley had a relationship for at least six to eight years which produced two daughters. They were approximately ages seven and five at the time of the incident, but the couple no longer lived together.

On the evening of June 30, 1995, after going out to dinner, the two girls and their mother had fallen asleep watching television on the couch in the living room of Kelley’s mobile home. The doors were secure, and Sims did not have a key. At about 12:45 a.m. the girls were awakened by Sims, who was standing over their mother in the dark waving a knife and threatening to kill her. They saw their mother jump up and run out the front door with Sims chasing her. The girls followed onto the front porch, but their mother told them to go back inside and close the door.

Sims viciously stabbed Kelley on the porch immediately outside the front door, and after she jumped off the porch he continued stabbing her on the ground nearby. The struggle lasted between 30 minutes and an hour. The girls did not know while they were inside whether their mother was being killed or not. Although Kelley does not remember getting stabbed while on the couch or in the home, blood was found on the floor next to the couch and inside the front door.

Kelley told Sims she needed to go to the hospital because she felt she was dying and was so weak she could not stand. Sims put the girls and their bleeding mother into Kelley’s car, drove around aimlessly for awhile, then stopped at a stranger’s house and walked away. The seven-year-old girl had to knock on the stranger’s door at 2:30 a.m. to get help for her mother. She told the police officer who responded to the call, “Daddy broke in the trailer, started stabbing my mother, forced us into the car and drove us here.” He did not know if her statement meant the child had actually seen any of the stabbing. The officer testified that when he found Kelley, “[s]he had been cut from head to toe and was covered in blood. Her panties were tom down by her legs, pulled around her knees, covered in blood.” He was worried Kelley might die from the injuries he observed.

Kelley was treated at the hospital for one laceration on each side of her neck, stab wounds on the right side of her chest, both sides of her back, in her stomach, in the right side, on the right arm, on both legs, and on her hands. The wound in the stomach penetrated her abdominal cavity and was life threatening. One cut on her neck went all the way around the front, from one side to the other. Blood was found in the car and on Sims’ clothing and shoes.

1. Sims contends the evidence is insufficient to authorize convictions for cruelty to children because there was no evidence that the children suffered excessive mental pain and that Sims acted maliciously in causing it.

OCGA § 16-5-70 (b) provides: “Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” To prove the crime, “there must be evidence establishing the age of the child[ren], that the child[ren] suffered physical or mental pain, that the pain was cmel or excessive, that the defendant caused the pain, and that the defendant acted maliciously in so doing.”

(a) “[T]he determination of what is cruel or excessive physical or mental pain is to be made by the jury.” “Cruel” and “excessive” are adjectives which inherently require a consideration of degree; the law does not set a bright line but leaves to the trier of fact, taking into account societal norms generally accepted, whether certain behavior inflicts “cruel” or “excessive” pain (in this instance, mental rather than physical pain). There will be a gray area where some would say it is and some would say it is not, and neither is wrong as a matter of law. There will be other areas on each end of the scale. On the pole with which we are concerned here (and will be whenever there is an appeal from a conviction), there will be instances where the law would not countenance a finding of cruel or excessive pain. We must determine only whether the circumstances here, taking into account the evidence in favor of the finding and all reasonable inferenees from that evidence, would prohibit the finding made by the jury.

The only direct evidence presented about the observed behavior of Sims’ daughters in reaction to the incident was that the older child appeared outwardly to be “pretty calm” when talking to the police and the younger girl remained in the back seat of the car until her mother was taken by the ambulance. Sims contends this is insufficient evidence of “excessive mental pain.” But in isolating these two facts he ignores the context.

The two girls witnessed a terrifying criminal attack when their father threatened to kill their helpless mother with a knife. As to the aggravated battery, it is reasonable to infer from the blood stains that Kelley was stabbed before she got outside. This would mean that the girls also witnessed their father commit aggravated battery by actually stabbing their mother in their presence. Even if they did not, they did see the results of the vicious violence on their mother’s body, they endured the indecisive car ride when she was suffering extreme injuries, and they were stranded with her, without help, in the middle of the night.

In Hall v. State a father who shot his son in front of his two daughters contended there was insufficient evidence to support convictions of cruelty to children. Hall’s daughters did not “presently exhibit overt manifestations of having been traumatized by the event.” Two experts testified about how children may “repress [seeing a sibling murdered] and show no immediate outward signs of trauma, but that it often emerges years later,” and that there may be “unconscious denial . . . with no outward symptoms until the child was older.” This testimony was offered to show that children’s lack of physical symptoms of trauma at the time do not preclude the internal experience of cruel and excessive mental pain.

The court concluded that the jury was authorized to find that the girls suffered “cruel and excessive mental pain.” Likewise, Sims’ jury here was authorized to find that Sims’ daughters suffered exceptional mental pain from witnessing this episode of extreme domestic violence by their father on their mother. The absence of similar expert testimony here does not preclude the jury’s finding. Expert testimony is not necessary when the jurors may make the determination on their own.

(b) As for malice, “[f]or purposes of this Code section, malice in the legal sense imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm may result. Intention may be manifest by the circumstances connected with the perpetration of the offense. Intent is a question of fact to be determined upon consideration of words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” Given Sims’ blatant disregard for his children and the plain facts that he allowed them to know he was then and there trying to kill their mother, forced them to observe the results and compelled them to join the prolonging of her unaided condition, we find no lack of evidence of malice.

2. Sims contends the child’s statement to the police was not admissible under the child hearsay exception found in OCGA § 24-3-16. That section provides: “A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” The underlined phrase was added by amendment in 1995.

The Supreme Court recently held that the amendment “violates well established principles of equal protection, . . . [and] must be struck down as unconstitutional.” Thus, the amended Code section cannot be used as a basis for admitting the child’s testimony as a witness to Sims’ physical abuse of Kelley. It is also inapplicable as a ground for admitting the child’s statement as a victim of cruelty to children because it allows testimony only from the victim of sexual conduct or physical abuse. Sims’ daughters were the victims of mental cruelty.

The State argued at the hearing before this Court that the statement was admissible as part of the res gestae. OCGA § 24-3-3 provides “[declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” As explained in Brantley v. State, “[w]hat the law altogether distrusts is not after-speech but afterthought. In cases when a statement is narrative rather than exclamatory, the circumstances must be closely scrutinized, because narrative is generally the result of afterthought. If the declarations appear to spring out of the transaction — if they elucidate it — if they are voluntary and spontaneous, and if they are made at a time so near to it, as reasonably to preclude the idea of deliberate design, then they are to be regarded as contemporaneous. However, no precise time can be fixed a priori when the res gestae ends, but each case must turn on its own circumstances, the inquiry being rather into events than to the precise time which has elapsed.” One question is, were the jurors “authorized to believe that [the statements] were made without premeditation or artifice, and without a view to the consequences?”

Statements by the victim to a witness, including the police very shortly after the events, have been held properly admissible. “The fact that some of the statements were in reply to questions of the witnesses would not render them inadmissible.”

The events leading to the daughter’s statement were all part of one continuous transaction and closely connected in time. The young girl made the statement at the end of a two-hour ordeal in response to the first questions asked of her by police. She had been in the company of the estranged father until only minutes before. There was no evidence of coaching, promises or threats. She was young, and there is no evidence of knowledge of the consequences of her statement. It was admissible.

Moreover, the girl was available to testify. “[Sims] had the opportunity to cross-examine her regarding her allegations, providing him with an additional safeguard to his right to a fair trial.” Sims’ relianee on Rolader v. State is misplaced.

Decided October 9, 1998

Jo C. Nesset-Sale, for appellant.

Harry N. Gordon, District Attorney, John A. Pursley, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

        Brewton v. State, 266 Ga. 160 (1) (465 SE2d 668) (1996).

        Hopkins v. State, 209 Ga. App. 376, 377 (1) (434 SE2d 74) (1993).

       Compare Furman v. Georgia, 408 U. S. 238, 277 (92 SC 2726, 33 LE2d 346) (1972) (Brennan, J., concurring) (severe punishment is in part determined by “contemporary society”).

       See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       OCGA §§ 16-5-20; 16-5-21. “ ‘Aggravated assault with a deadly weapon is completed when a simple assault is committed by means of a deadly weapon,’ [cit.], and neither type of assault requires physical contact with the victim.” Tuggle v. State, 145 Ga. App. 603, 604 (1) (244 SE2d 131) (1978).

       261 Ga. 778 (415 SE2d 158) (1991).

       Id. at 781 (7) (a).

       Id. at 782.

       See Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981) (expert opinion admissible where “conclusion is beyond the’ken of the average layman”); Fordham v. State, 254 Ga. 59 (4) (325 SE2d 755) (1985).

       (Punctuation omitted.) Brewton, supra, 266 Ga. at 161 (2), quoting Stokes v. State, 204 Ga. App. 586 (2) (420 SE2d 84) (1992); see also Rigenstrup v. State, 197 Ga. App. 176, 180 (4) (398 SE2d 25) (1990); Harris v. State, 223 Ga. App. 661, 663 (478 SE2d 458) (1996).

       Ga. L. 1995, p. 937, § 1.

        Woodard v. State, 269 Ga. 317, 323 (3) (496 SE2d 896) (1998).

       OCGA § 24-3-16.

       (Citations and punctuation omitted.) 177 Ga. App. 13, 14-15 (2) (338 SE2d 694) (1985).

       See also Moseley v. State, 179 Ga. App. 698, 699 (2) (347 SE2d 686) (1986) (victim’s first opportunity to report crime outside presence of perpetrator is admissible as res gestae).

       (Punctuation omitted.) Andrews v. State, 249 Ga. 223, 227 (290 SE2d 71) (1982), quoting Hart v. Powell, 18 Ga. 635 (1855).

        Haralson v. State, 234 Ga. 406, 407-408 (3) (216 SE2d 304) (1975); Basu v. State, 228 Ga. App. 591, 593 (1) (492 SE2d 329) (1997); McKinney v. State, 218 Ga. App. 633, 634 (1) (463 SE2d 136) (1995).

        Littles v. State, 236 Ga. 651, 652 (2) (224 SE2d 918) (1976). See also Kirkland v. State, 206 Ga. App. 27, 30 (9) (424 SE2d 638) (1992) (witness properly allowed to testify as to statements made by victim’s five-year-old child at scene immediately after collision).

        Heard v. State, 221 Ga. App. 166, 168 (471 SE2d 22) (1996).

       202 Ga. App. 134 (413 SE2d 752) (1991).

       See Heard, supra.


author: Pope, Presiding Judge.

text:
    A98A1605.
    MORRIS v. STATE OF GEORGIA.
    (507 SE2d 532)
   Pope, Presiding Judge.

The State filed a complaint under OCGA § 16-13-49 seeking forfeiture of $4,202 in currency seized at the time appellant Benjamin Bernard Morris was arrested for possession of 1.1 ounces of marijuana. Morris answered the complaint and filed a claim to the currency. After a bench trial, the court concluded that the currency seized was contraband under OCGA § 16-13-49 (d) (2) in that “it was used or intended for use to facilitate a transaction in or a purchase of or sale of a [sic] marijuana.” The Court further found that the money qualified as contraband under OCGA § 16-13-49 (d) (6) in that it was in “close proximity” to the marijuana found in Morris’s car. Morris appeals.

“As forfeiture actions are civil proceedings, the State was required to prove its case by a preponderance of the evidence. . . . Upon appellate review, factual findings made after a bench trial shall not be set aside unless clearly erroneous, and due regard should be given to the opportunity of the trial court to judge the credibility of the witnesses. The clearly erroneous test is the same as the any evidence rule.” (Citations and punctuation omitted.) Salem v. State of Ga., 232 Ga. App. 886 (503 SE2d 62) (1998).

The evidence presented at the hearing showed that two officers from the Piedmont-Northern Multi-Agency Narcotics Squad (MANS) received an informant’s tip that a man in an older model gold sedan, with a personalized license plate reading “GOLDIE,” was selling drugs at a housing project known as “Goose Hollow.” The Goose Hollow area was known to authorities to be the site of an open-air drug market. When the officers went to Goose Hollow, they spotted a sedan fitting the informant’s description being driven by Morris. The officers saw the sedan circling the project, but they did not observe any drug-related activity. Shortly after they arrived at Goose Hollow, the sedan drove away and the officers followed in their own unmarked vehicle.

After a short time, Morris “whipped” the sedan into a driveway, and the officers pulled in behind, blocking the sedan’s path. When the officers got out of their car and showed their badges, Morris ran behind a house, carrying a brown paper bag in his hands. When the officers caught up with Morris in a patch of kudzu behind the house, his hands were empty. Morris told the officers that he had run because he had a “little bit of weed” in his car. The officers then searched the car and located a bag holding 16 small bags containing a green leafy substance, which was later identified as approximately 1.1 ounces of marijuana.

The officers then called in the local K-9 patrol unit to conduct a search for the brown paper bag, resulting in the discovery of a roll of bills totaling $4,000 lying in .the kudzu approximately ten feet from where the officers caught Morris. At the time of his arrest, Morris disclaimed any knowledge of the $4,000. This money, along with $202 recovered from Morris’s pockets, is the subject of the forfeiture action.

One of the officers testified at the hearing based upon his experience of 150 to 200 drug-related arrests that the marijuana seized from Morris’s car was packaged for re-sale and not for individual use. In the officer’s opinion, the marijuana would sell for about $10-20 per package. The money located at the scene was in various denominations: one hundred twenty-nine $20 bills, ten $100 bills, fifteen $10 bills, four $5 bills and five $50 bills. The money found in Morris’s pocket was similarly denominated: nine $20 bills, two $10 bills and two $1 bills. The officer relied upon this evidence in charging Morris with possession of marijuana with intent to distribute.

In his sole enumeration of error, Morris contends that the trial court applied the wrong subsection of OCGA § 16-13-49 in determining that the money was subject to forfeiture. Because this case involved less than four ounces of marijuana, Morris contends it is controlled by language found in OCGA § 16-13-49 (e), which provides, “A property interest shall not be subject to forfeiture under this Code section for a violation involving . . . four ounces of marijuana or less unless said property was used to facilitate a transaction in or a purchase or sale of a controlled substance or marijuana.” Morris argues that the evidence in the case was legally insufficient under this provision because the State did not prove any actual transaction in marijuana took place.

Because this is a case involving less than four ounces of marijuana, Morris is correct that the quoted language of OCGA § 16-13-49 (e) applies. But he is incorrect in his assertion that the state must demonstrate that an actual transaction took place before the currency may be subject to forfeiture. “In a forfeiture action under OCGA § 16-13-49, the determination to be made by the finder of fact is not whether appellants possessed or used drugs, nor whether appellants were most likely engaged in selling drugs. The issue to be decided is whether the evidence presented by the state suffices to support a forfeiture under the relevant statute.” (Citations and punctuation omitted.) Salem v. State of Ga., 232 Ga. App. at 890. And this Court has held that “[w]hile the State does need to show a strong nexus between the property and the alleged violation if the amount of marijuana seized totals four ounces or less, the State can show this nexus in cases where an actual sale does not occur.” Rabern v. State of Ga., 221 Ga. App. 874, 877 (3) (473 SE2d 547) (1996).

In Rabern, this Court found that forfeiture of some portion of the appellant’s real property was warranted even though no actual marijuana transaction occurred and less than four ounces of marijuana, in the form of 450 small marijuana plants, was confiscated, where the State established that the property was being used to facilitate the growth of the plants as part of a marijuana manufacturing operation. 221 Ga. App. at 877-878. As Judge Beasley explained in her special concurrence to the opinion, “[T]he property was in use as a nursery to produce the product which would constitute the object of [a] future sale or transaction; the real property ‘was used to facilitate’ the enterprise in this fashion. . . . The property subject to forfeiture, when small amounts of contraband are involved, must be in current or past use to facilitate a transaction, purchase, or sale which is current or past or intended for the future.” Rabern v. State, 221 Ga. App. at 879 (Beasley, C. J., concurring specially).

In this case, although the State did not present evidence of an actual drug transaction, it showed a “strong nexus” between the $4,202 and drug activity. The MANS officers received an informant’s tip that someone in a distinctive gold sedan was selling marijuana in the Goose Hollow area. The officers then discovered Morris driving the car described in a high drug activity area of the Goose Hollow project. Later, when they stopped to question Morris, he fled with a paper bag in his hand. When caught, he had nothing in his hands. A subsequent search turned up the $4,000, which Morris originally denied was his, but now claims as his property. The evidence showed that the marijuana confiscated was packaged individually, in a manner used for re-sale and not for private use, and the currency was in denominations corresponding to the street value of the individual packets. Although $4,000 of the money at issue was ultimately found some 150-200 feet away from the marijuana in Morris’s car, the evidence supported the trial judge’s finding that the money originally had been in the car with the marijuana and was moved by Morris when he was fleeing the police. We believe this evidence is sufficient under OCGA § 16-13-49 (e). Compare Rabern v. State of Ga., supra (evidence bore out informant’s tip that property was being used to house marijuana manufacturing operation) with Carr v. State of Ga., 212 Ga. App. 36 (441 SE2d 85) (1994) (where State failed to present any evidence that property owners were using marijuana other than for personal use), overruled in part, Rabern v. State, supra.

Decided October 9, 1998

James W. Smith, for appellant.

Robert W. Lavender, District Attorney, James D. Duffy, Assistant District Attorney, for appellee.

Under OCGA § 16-13-49 (s) (2), “[t]he fact that money . . . was found in proximity to contraband . . . authorizes the trier of fact to infer that the money . . . was the proceeds of conduct giving rise to the forfeiture or was used or intended to be used to facilitate such conduct.” Contraband in this context includes all controlled substances, OCGA § 16-13-49 (d) (1), and the statute specifically includes marijuana in the definition of controlled substances. OCGA § 16-13-49 (a) (1).

The trial court, therefore, was entitled to infer that the currency represented the proceeds of one or more drug transactions and thus had been used “to facilitate a transaction in or purchase of or sale of a controlled substance or marijuana.” See Manley v. State of Ga., 217 Ga. App. 556, 558-559 (3) (458 SE2d 179) (1995). This inference is bolstered by the denominations and amount of the currency and the relatively small number of individual marijuana packets remaining in Morris’s car.

Accordingly, we affirm the trial court’s finding that forfeiture was warranted in this case. See Holland v. State, 232 Ga. App. 284, 285 (2) (501 SE2d 829) (1998) (“[I]t is well-established that a trial court’s ruling will be affirmed if it is right for any reason.”) (citations and punctuation omitted).

Judgment affirmed.

Beasley and Ruffin, JJ., concur.


author: Johnson, Presiding Judge.

text:
    A98A1088.
    A98A1089.
    A98A1090.
    LOWERY’S TAVERN, INC. v. DUDUKOVICH. NORTHEAST SALES DISTRIBUTING, INC. v. DUDUKOVICH. SCOTT v. DUDUKOVICH.
    (507 SE2d 851)
   Johnson, Presiding Judge.

Lowery’s Tavern, Inc., Northeast Sales Distributing, Inc., and Howard Scott were granted interlocutory review of the trial court’s order denying their motions for summary judgment in this premises liability case. For reasons which follow, we reverse.

This accident occurred on October 8, 1994, just after midnight, when James Dudukovich entered an alley and fell into an elevator shaft. The events leading up to his fall form the basis of the arguments which we consider in this appeal. The facts taken most favorably to Dudukovich show as follows: Dudukovich traveled to Athens to meet with a group of friends, including Jane Larimer, and attend a band performance. Dudukovich consumed approximately 11 beers before this incident occurred. Larimer consumed approximately eight or nine beers before this incident occurred. Although both claimed to have been sober when the accident occurred and there is testimony that Dudukovich seemed to be in complete control of his faculties when he left the club immediately prior to his fall, Dudukovich had a blood alcohol level of .188 — twice the legal limit for driving a vehicle — when his blood was tested shortly after the fall.

Just after midnight, Dudukovich and Larimer left one club and proceeded to another club to meet their friends. Dudukovich recalls nothing more of that evening and cannot testify as to any actions he may have taken in the alley or how he entered the elevator shaft. Dudukovich acknowledged that there was a safe, well-lit, public sidewalk that he and Larimer could have traveled to get to the other club. He further acknowledged that the public sidewalk was the shortest, most direct route to the other club. However, instead of taking the public sidewalk, Dudukovich suggested diverting into the alley, an unlit route. Dudukovich admitted on deposition that he had never before been in the alley.

The alley is in the shape of a “T,” with the stem of the “T” being about 100 feet long and the left half of the “T” being about 73 feet long. While the two were walking in the alley, Larimer asked Dudukovich on several occasions if he was sure they were going the right way and expressed doubts about the shortcut. There were garbage cans in the alley, and Larimer described the alley as “very dark,” “muddy,” “gross” and “yucky.” The alley was covered with five-foot-tall weeds and contained debris, twelve to twenty trash cans, empty boxes, mops, mop buckets and recycling bins. According to B. J. Kilfara, a witness, the alley was “dark and grim” and “it didn’t look like anyone belonged there.”

Larimer testified that the alley was not a major thoroughfare and did not look very well traveled. She stated that “there wasn’t enough light to really see.” There were planks or boards to walk around, and the two had to walk single file. Dudukovich insisted he knew where he was going and instructed Larimer to turn left at the top of the T-shaped alley.

Upon reaching a large fence after she had turned left, Larimer turned around and noticed Dudukovich was no longer behind her. She retraced her steps and saw a dark hole in the side of a building. Thinking Dudukovich had entered the building through this opening, Larimer stepped into the opening and fell into the elevator shaft, landing partially on Dudukovich. Larimer testified that although she could have done so, she made no attempt to ascertain whether the black opening in the side of the building was safe.

The elevator shaft was located on property owned by Scott and leased by Lowery’s Tavern, a bar. At no time did Dudukovich or Larimer intend to go to Lowery’s Tavern. The elevator opens into Chad Lowery’s office. There is no public entrance to or exit from Lowery’s Tavern or any other buildings through the alley. The alley is used for storage of garbage, deliveries by vendors, and as a fire escape.

Other than Chad Lowery and tavern employees, only delivery people have used the elevator since Lowery’s Tavern has occupied the premises. The delivery people were trained to lock the elevator doors when they were finished using the elevator. However, Chad Lowery admitted that on occasion the delivery people failed to follow his instructions and left the elevator doors unlocked.

At the time of this incident, the elevator was stopped at the top of the shaft, opening into Chad Lowery’s office. The elevator was most recently operated by employees of Northeast Sales, who made a delivery to Lowery’s Tavern. One of the employees testified that they finished their delivery and pushed the elevator doors closed. While the employees had no recollection of locking the elevator doors on this occasion, one of them testified that this was his usual procedure. At approximately 2:00 a.m., while Lowery’s Tavern was in the process of closing, Chad Lowery learned that someone had fallen into the elevator shaft.

1. At the outset, it is important to note Dudukovich’s status visa-vis the defendants. Dudukovich concedes he was not an invitee on the premises. Therefore, the defendants were charged only with the duty not to wilfully or wantonly injure him. OCGA § 51-3-2 (b). Whether Dudukovich was a licensee or a trespasser is irrelevant because the duty owed him is the same in either case. See Hawkins v. Brown, 228 Ga. App. 311, 312 (2) (491 SE2d 423) (1997); Crosby v. Savannah Elec. &c. Co., 114 Ga. App. 193, 196 (1) (150 SE2d 563) (1966). A possessor of land is subject to liability for physical harm caused by a condition on the land to those licensees known or expected to come upon the land only if: “(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved.” (Citations and punctuation omitted.) Cooper v. Corporate Property Investors, 220 Ga. App. 889, 891 (470 SE2d 689) (1996).

2. Dudukovich argues that the doors to the elevator shaft were left open, thereby creating a mantrap. However, the undisputed evidence in the record established that the doors to the elevator were closed when Dudukovich approached them. While the elevator doors were apparently left unlocked by employees of Northeast Sales, there is no testimony contradicting Northeast Sales employees’ testimony that the elevator doors were closed.

Dudukovich asserts it may be inferred that because the doors do not have handles on the outside, he could not have opened the doors from the outside and Northeast Sales employees must not have closed the doors. However, this inference does not withstand the direct evidence from Northeast Sales employees that the doors were left closed. Kappa Sigma Intl. Fraternity v. Tootle, 221 Ga. App. 890 (473 SE2d 213) (1996). “Where direct and positive testimony is presented on an issue, the opposing party must show some other fact which contradicts the testimony. If this other fact is direct evidence, that is sufficient to allow the case to go to the jury; if the other fact is circumstantial evidence, it must be inconsistent with the defendant’s evidence, or if consistent, it must demand a finding of fact on the issue in favor of the plaintiff.” (Citations and punctuation omitted.) Id. at 892. The fact that the doors do not have handles on the outside does not lead to the conclusion that it is impossible to open them from the outside.

Moreover, Dudukovich cannot recall any actions he may have taken in the alley or how he entered the elevator shaft, and there is no direct evidence that the doors were open. Contrary to Dudukovich’s contention, there also is no testimony that a Lowery’s Tavern employee, another delivery person, or any other individual opened the doors to the elevator shaft after the Northeast Sales employees closed the doors.

3. We agree with the trial court that the assumption of the risk doctrine does not bar Dudukovich’s claim. The evidence adduced does not establish that Dudukovich had the requisite subjective and actual knowledge of the danger posed by the elevator shaft such that it can be argued he assumed the risk of being injured by it. See Vaughn v. Pleasent, 266 Ga. 862 (471 SE2d 866) (1996). Nevertheless, in this case the risks associated with departing from a safe and direct route to his destination, proceeding through a dark, debris-filled alley, opening doors that gave access to the elevator shaft, and stepping into a dark hole in the side of a building were so patent, and Dudukovich’s conduct so unreasonable, that Dudukovich should be charged with the consequences of his failure to use ordinary care as a matter of law, and summary judgment should have been awarded to Lowery’s Tavern, Northeast Sales and Scott.

. It is well established that even assuming the defendants had reason to know that the elevator shaft posed a risk of harm to a licensee who was known to be or expected to come upon the premises, Dudukovich cannot recover if he could have avoided injury to himself by the exercise of ordinary care. See OCGA § 51-11-7. “The [plaintiff] must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the [defendants’] negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” (Citations and punctuation omitted.) Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). Although the issue of Dudukovich’s exercise of due diligence for his own safety is ordinarily reserved for the jury, it may be summarily adjudicated where his knowledge of the risk is clear and palpable. Wells v. C & S Trust Co., 199 Ga. App. 31, 32 (403 SE2d 826) (1991) (summary judgment affirmed where tenant walked down unlighted stairway rather than take an alternative safe means of egress that was readily accessible). This case is distinguishable from Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997), where the plaintiff was an invitee walking down a lighted and publicly traveled supermarket aisle.

In determining that the issue of Dudukovich’s exercise of ordinary care was a jury question, the trial court cited Brennan v. Freight Room, 226 Ga. App. 531, 534 (2) (487 SE2d 109) (1997). However, in Brennan, there was “a disputed issue of fact as to whether an alternative safe means of egress was readily accessible to appellant.” Id. There is no such question in the present case. Dudukovich admits that he had never before been in the alley and that the most direct route to the other club would have been to walk straight down the illuminated public sidewalk which he and Larimer left.

The case of Gaydos v. Grupe Real Estate Investors, 211 Ga. App. 811, 813 (440 SE2d 545) (1994), clearly imposes an increased degree of caution on the plaintiff who elects to depart from a safe path, and such increased caution is to be commensurate with the increased risk associated with the election. In Gaydos, summary judgment for the defendant was affirmed where the plaintiff took a shortcut across a lawn rather than using a concrete walkway. While the plaintiff argued the defect was not visible, we held that the plaintiff’s failure to react to the diminished visibility and conduct herself accordingly constituted a failure to exercise ordinary care for her own safety. Id. This Court has repeatedly cited and followed the principles established in Gaydos in cases where the plaintiff has deviated from a safe travel route and voluntarily traversed a more dangerous path. See Farmer v. Wheeler/Kolb Mgmt. Co., 224 Ga. App. 834, 836 (482 SE2d 475) (1997) (summary judgment affirmed where pedestrian tripped over concrete as she was cutting across parking lot through parked cars rather than through the aisle of the parking lot); MARTA v. Fife, 220 Ga. App. 298, 301 (2) (469 SE2d 420) (1996) (denial of summary judgment reversed where plaintiff stepped off curb into drainage culvert when MARTA provided an area for picking up passengers but the plaintiff chose to use the street instead).

Dudukovich attempts to distinguish those cases holding that a person who proceeds in the darkness does so at his own risk by arguing that only “anticipated” risks are covered by this rule. He would have this Court assess various risks he contends are reasonable to expect when entering an alley. However, any number of dangerous conditions might exist in an alley due to the trespasser/licensee’s unfamiliarity with the plan, function, and design of the alley. Clearly, the plaintiff in Pries v. Atlanta Enterprises, 66 Ga. App. 464, 468-469 (17 SE2d 902) (1941), did not expect that, upon opening a door to a darkened room, he would find there was no floor in the room. Yet, we affirmed the trial court’s grant of summary judgment in that case because the risk of entering the room was “plainly obvious.” Id. at 469.

In accordance with Gaydos and related cases, Dudukovich was charged with the duty to exercise a heightened degree of attention for his own safety and assumed whatever heightened risks were associated with unnecessarily departing from the well-lit, public sidewalk and detouring into an unfamiliar, dark, debris-filled alley. He observed the contents and condition of the alley, he heard the doubts expressed by Larimer, yet he continued down the alley and ultimately opened a door in the side of a building and voluntarily entered an even darker doorway. The risk of falling is certainly a foreseeable consequence of entering into a dark alley and a dark and unfamiliar building. Under these circumstances, Dudukovich is barred from recovery due to his failure to exercise ordinary care for his own safety.

Decided October 13, 1998

Goodman, McGuffey, Aust & Lindsey, William S. Goodman, Leslie S. Sullivan, for appellant (case no. A98A1088).

Drew, Eckl & Farnham, Stevan A. Miller, Scott R Archer, for appellant (case no. A98A1089).

Mozley, Finlayson & Loggins, Robert M. Finlayson II, R. Ann Grier, for appellant (case no. A98A1090).

Powell, Goldstein, Frazer & Murphy, William V. Custer IV, Christopher P. Galanek, Trida A. Kinney, Mitchell & Shapiro, Richard C. Mitchell, Holland & Knight, Joseph D. Wargo, for appellee.

Under the standard of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), if a defendant who moves for summary judgment can point out by reference to the affidavits, depositions, and other evidence of record that there is no evidence sufficient to create a jury issue with respect to at least one essential element of the plaintiff’s case, viewing all evidence and reasonable inferences therefrom in a light most favorable to the nonmoving party, without the necessity of weighing the evidence or determining the credibility of the witnesses, such defendant is entitled to summary judgment unless the plaintiff can come forward with specific evidence giving rise to a triable issue. In support of their motions for summary judgment, Lowery’s Tavern, Northeast Sales, and Scott all presented evidence that Dudukovich failed to exercise ordinary care for his own safety. A review of the record reveals no facts or reasonable inferences which may be drawn therefrom sufficient to raise a triable issue of fact as to this point. Accordingly, the trial court erred in denying summary judgment to the three defendants.

4. In light of our holding in Division 3 of this opinion, the remaining enumerations of error are moot.

Judgment reversed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.

       Both Lowery’s Tavern and Scott, as possessors of the premises, are subject to premises liability responsibilities under OCGA § 51-3-1. Northeast Sales, who is being sued because of its alleged control over what can be characterized as a static condition on the premises, is subject to premises liability responsibilities also. See Atlanta Gas Light Co. v. Gresham, 260 Ga. 391 (394 SE2d 345) (1990).


author: Eldridge, Judge.

text:
    A98A1623.
    BELL et al. v. STATE OF GEORGIA.
    (507 SE2d 535)
   Eldridge, Judge.

This is an appeal from the order striking the answer as insufficient and entering forfeiture on default under OCGA § 16-13-49 (o) (3) against Otis C. Bell and Irene W. Bell as to improved real estate located north of Smokey Road in the northeast corner of Land Lot 3 in the Third District of Coweta County, Georgia.

The complaint, filed March 19, 1997, recites in paragraph 1 that Book 223, Page 344, of the records of the Superior Court Clerk for Coweta County, sets forth the legal description of the real estate sought to be forfeited. The deed clearly sets forth the record ownership of the land. However, notwithstanding such evidence of ownership of record, the complaint alleges in paragraph 10 that “[t]he names and addresses of the purported owners and/or interested holders of the real and personal property sought to be forfeited are: Otis C. Bell, 2011 Smokey Road, Newnan, GA. 30263 [and] Irene Bell, 2011 Smokey Road, Newnan, GA. 30263.” The complaint, in paragraph 6, incorporated by reference attached Exhibit A, which is a stipulated settlement agreement in 1992 as to the same property between the parties. Exhibit A is a consent judgment dated June 22, 1993, which approved the settlement between the State of Georgia and Otis C. Bell and Irene Bell as to the prior forfeiture action against the same property, evidencing their ownership or claim of right.

The answer of Irene W. Bell and Otis C. Bell was filed April 18, 1997. In the answer, they respond that “[t]he allegations of paragraph 10 of the Complaint are admitted; however, defendant in rem, and the owner thereof deny that there is any personal property in issue in this action.” They respond that “[t]he allegations of paragraph 1 of the Complaint are admitted.” They further respond that “[t]he allegations of paragraph 6 of the Complaint are admitted.” Thus, in the Bells’ answer, they admit that they are the record title holders to the land as set forth in the complaint, and that as the record title holders, they previously entered into a prior forfeiture settlement over this land with the State, which was approved by consent judgment of the court.

The district attorney, in his motion for judgment of forfeiture and disposition of property, contended that the Bells failed to comply with OCGA § 16-13-49 (o) (3) (C), (D), (E), and (F).

On December 18, 1997, the trial court entered an order “[t]hat Otis C. Bell and Irene Bell have failed to file a timely and sufficient answer pursuant to OCGA § 16-13-49 (o) (3).” Held:

The Bells enumerate as error that the trial court’s order striking their answer, asserting that “[t]he [a]nswer of the Defendants, as supplemented by amendment, satisfies] the specific pleading requirements of OCGA § 16-13-49.” We agree.

The district attorney for the Coweta Circuit litigated a prior civil forfeiture with the Bells which involved the same issues under OCGA § 16-13-49 (o) (3) (C), (D), (E), and (F). The parties entered into a consent judgment to resolve the prior litigation. Between the district attorney and the Bells, the issue of ownership of the subject property was entered as a consent judgment on June 22, 1993, and Exhibit A is evidence of such judgment. Thus, the sufficiency of the answer under OCGA § 16-13-49 (o) (3) was satisfied when the Bells admitted to the prior consent judgment in their answer.

OCGA § 9-11-10 (c) provides that “[statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” “Under OCGA § 9-11-81, [the incorporation by reference provision of OCGA § 9-11-10 (c)] of the Civil Practice Act, including [incorporation of exhibits attached to pleadings], applies] to forfeiture proceedings unless ‘specific,’ ‘expressly prescribed’ rules of the forfeiture statute conflict with the [incorporation of exhibits] provisions of the CPA.” (Emphasis in original.) Rojas v. State of Ga., 269 Ga. 121, 122 (2) (498 SE2d 735) (1998). “Where a party relies on a written instrument as the basis of an action, and attaches a copy of the instrument as an exhibit, the facts shown in the exhibit will prevail over the allegations of the party in the pleading. [Cits.]” H & R Block v. Asher, 231 Ga. 780, 781 (204 SE2d 99) (1974). By the district attorney incorporating such consent judgment as Exhibit A to his complaint, he satisfied the Bells’ answer requirement under OCGA § 16-13-49 (o) (3) (C) (“nature and extent of the claimant’s interest in the property”); (D) (“date, identity of transferor, and circumstances of the claimant’s acquisition of the interest in the property”); and (F) (“[a]ll essential facts supporting each assertion”). Whatever the Bells’ claims of ownership had previously been, for purposes of the forfeiture statute, such judgment-exhibit evidenced their claim. Therefore, by admitting in their answer such judgment-exhibit as part of the complaint, the Bells satisfied the sufficiency of the answer under OCGA § 16-13-49 (o) (3).

Further, the Bells attached a copy of their recorded deed as Exhibit A to their amended answer on May 17, 1997, to be incorporated by reference. A claimant can correct the deficiencies of a previous answer by amendment. Rojas v. State of Ga., supra at 122. Such amendment also corrected the lack of verification by Otis Bell. See OCGA § 9-11-11 (c); Rojas v. State of Ga., supra at 122; Edwards v. Edwards, 227 Ga. 307 (180 SE2d 358) (1971). A claimant can correct a deficient answer by amendment that incorporates an exhibit, i.e., the warranty deed, containing such facts as part of their answer, which provided information regarding from whom the property was acquired, the date of acquisition, and the consideration paid. Such facts satisfy OCGA § 16-13-49 (o) (3).

Both the district attorney and the Bells became bound by such admissions in judicio made in their respective pleadings until amended as to the Bells’ claim to the realty. See OCGA §§ 24-3-30; 24-4-24 (b) (7). A pleader is bound by the allegations of his own pleadings unless or until removed by amendment and is not permitted to introduce evidence in denial of such admission in judicio. Budget Rent-A-Car of Atlanta v. Webb, 220 Ga. App. 278, 280 (1) (469 SE2d 712) (1996); accord State Hwy. Dept. v. Lumpkin, 222 Ga. 727 (152 SE2d 557) (1966); Strozier v. Simmons U.S.A. Corp., 192 Ga. App. 601 (385 SE2d 677) (1989). Such admission in judicio applies only to the admission of fact, but does not apply to opinions or conclusions of law. Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828 (360 SE2d 280) (1987); Scott v. Jefferson, 174 Ga. App. 651 (331 SE2d 1) (1985). “No sensible reason occurs to us why [a party] may not avail himself of all allegations in the [opposite party’s pleadings], without formally tendering the [pleadings] in evidence, or otherwise proving the admissions [they contain]. . . . [The opposite party] certainly should be bound by whatever he chooses to allege therein.” East Tenn. &c. R. Co. v. Kane, 92 Ga. 187, 192-193 (5) (18 SE 18) (1893). Ownership of land is a matter of fact that can be admitted in judicio.

Under OCGA § 44-2-1, the sole purpose and effect of recordation of deeds are to afford third parties with constructive notice of the existence of the deed and the information contained within the deed. Bennett v. Southern Pine Co., 123 Ga. 618 (51 SE 654) (1905); City Wholesale Co. v. Harper, 100 Ga. App. 151 (110 SE2d 561) (1959); Fourth Nat. Bank of Columbus v. Howell, 92 Ga. App. 868 (90 SE2d 78) (1955). Thus, when the district attorney sets forth in his complaint the legal description of the property and goes further to recite the recordation of the book and page of the deed in the superior court clerk’s records, he admitted in judicio to having actual knowledge of the record title owners, i.e., the Bells, or lien owner, as well as date of acquisition, consideration, and conveyor as reflected in the cited deed. See OCGA § 24-4-24.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.

Decided October 13, 1998.

Edward R. Downs, Jr., for appellants.

Peter J. Skandalakis, District Attorney, Andrew T. Jones, Victoria S. Aronow, for appellee.

       Had this been a judgment on the merits in a contested adjudication, rather than a consent judgment memorializing a settlement agreement, it would have been res judicata as to the issue of ownership since ownership was a contested issue. See Cantrell v. Home Security Life Ins. Co., 165 Ga. App. 670, 671 (1) (302 SE2d 415) (1983); Blakely v. Couch, 129 Ga. App. 625 (200 SE2d 493) (1973).


text:
    A98A2048.
    ADAMS v. THE STATE.
    (507 SE2d 538)
   Johnson, Presiding Judge.

After a jury trial, Scott Adams was found guilty of theft by taking and not guilty of simple battery. He appeals from the conviction entered on the theft verdict.

1. We disagree with the state’s argument that the appeal must be dismissed because the notice of appeal was untimely filed. The judgment of conviction was entered in the State Court of Cobb County on March 27, 1998. On April 16, 1998, Adams filed a pro se notice of appeal in that court. The notice incorrectly stated that the judgment was being appealed to the Superior Court of Cobb County rather than to this Court. Adams filed several amended notices of appeal in state court, each time designating a different court as the appellate court. Finally, on May 18, 1998, Adams filed an amended notice of appeal which correctly designated this Court as the one to which the appeal was being taken.

In general, a notice of appeal must be filed within 30 days after entry of the appealable judgment complained of. OCGA § 5-6-38 (a). However, no appeal shall be dismissed because of a defect in the notice of appeal, including a designation of the wrong appellate court. OCGA §§ 5-3-27; 5-6-37. “If an error appears in the notice of appeal, the court shall allow the notice of appeal to be amended at any time prior to judgment to perfect the appeal so that the appellate court can and will pass upon the appeal and not dismiss it.” OCGA § 5-6-48 (d). The rules of appellate practice “shall be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case. . . .” OCGA § 5-6-30.

Adams was entitled to amend his timely filed notice of appeal to correct the name of the court to which the appeal was directed. See Griffin v. Johnson, 157 Ga. App. 657, 658 (1) (278 SE2d 422) (1981). His failure to initially name the proper appellate court does not warrant dismissal of his appeal. See Brumby v. State, 264 Ga. 215, 216 (1) (443 SE2d 613) (1994).

The state’s reliance on Bailey v. Bonaparte, 125 Ga. App. 512 (188 SE2d 119) (1972), is misplaced. The appellant in that case filed the notice of appeal in the wrong court; a notice of appeal filed anywhere other than where the law directs is ineffective. Id. at 515. In the instant case, the notice of appeal was filed in the correct court, but designated the wrong court as the one to which the appeal was directed. Bailey does not require dismissal of this case.

Decided October 13, 1998.

Scott Adams, pro se.

2. Adams complains that he was denied his constitutional right to confront the person who allegedly saw him commit the theft. No trial transcript or substitute therefor is included in the record, although it was Adams’ burden to request a transcript of the hearing on these misdemeanor charges or to construct a record of the trial. See Ward v. State, 188 Ga. App. 372, 374 (3) (373 SE2d 65) (1988). In the absence of a trial transcript or acceptable substitute, this Court is in no position to determine whether Adams preserved this error for appeal, whether the witness testified and what that testimony was, or whether Adams was afforded the opportunity to cross-examine the witness. We must presume that the trial judge’s conduct of the trial was proper. See Burleson v. Jordan, 163 Ga. App. 496 (295 SE2d 335) (1982). This enumeration presents no grounds for reversal.

3. Adams contends the trial court imposed cruel and unusual punishment in requiring that he be screened and, if needed, treated for violent behavior and alcohol/drug dependency as a condition of probation. He argues that the allegations and evidence did not support the imposition of such a condition. Again, without a transcript we cannot determine whether this enumeration was preserved or whether the evidence supported the imposition of screening and treatment requirements as conditions of probation. See generally Corbin v. State, 202 Ga. App. 464 (415 SE2d 14) (1992). ‘We will not presume error from a silent record. Appellant has the burden of showing error affirmatively by the record and this burden is not discharged by recitations in the brief.” (Citations and punctuation omitted.) Barner v. State, 194 Ga. App. 216, 217 (390 SE2d 77) (1990).

Moreover, a trial court has broad discretion to determine the terms and conditions of probation. Ballenger v. State, 210 Ga. App. 627, 628 (1) (436 SE2d 793) (1993). In the absence of express authority to the contrary, we see no logical reason why a reasonable condition imposed for probation of a sentence by a trial court should not be approved. Id. There being no indication in the record that this condition was unreasonable, we find no basis for reversal.

Judgment affirmed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.

Barry E. Morgan, Solicitor, Katherine L. Kissam, Assistant Solicitor, for appellee.


text:
    A98A1852.
    LOYAL v. NORFOLK SOUTHERN CORPORATION et al.
    (507 SE2d 499)
   Eldridge, Judge.

William Loyal filed suit against Norfolk Southern Corporation and Norfolk Southern Railway Company (collectively “Norfolk Southern”) under the Federal Employers’ Liability Act (“FELA”), 45 USC § 51 et seq., for hearing loss he allegedly sustained related to his employment with the railroad. A Bibb County trial court granted summary judgment to Norfolk Southern. Loyal appeals from that order.

Loyal began employment with Norfolk Southern in 1974 and spent five years as a switchman and eight years as an engineer. In 1987, despite the fact that he had less than 20 years employment with the railroad, Loyal learned that he qualified for a full disability retirement due to a medical condition unrelated to his employment. At the same time, Norfolk Southern offered a compensation package for senior employees who opted for early retirement, with additional benefits in excess of a disability retirement.

Loyal took a disability retirement from the railroad specifically because of his medical condition. Loyal’s disability retirement was in no way contingent upon accepting the company’s early retirement option. However, Loyal also accepted the early retirement compensation package offered by the railroad that included pension benefits, unpaid wages, earned vacation pay, and $50,000. As a part of the early retirement package, Loyal signed a general release as to all known and unknown occupational diseases and risks, which release stated in pertinent part, as follows: “[I]n consideration of the sum of FIFTY THOUSAND DOLLARS ($50,000), the receipt of which is hereby acknowledged, [I] hereby resign and surrender any right to employment by [Norfolk Southern], and hereby release and forever discharge [Norfolk Southern] from any claim (with the exception of vested pension rights), demand, action or cause of action, of any kind whatsoever, known or unknown, which I have or could have on account of, or in any manner arising out of or connected with, my employment.”

Thereafter, Loyal received a compensation check for $34,240.63 ($50,000 minus taxes). In addition, he began receiving disability retirement benefits.

Nine years later, in the spring of 1996, Loyal saw a notice in his local newspaper advertising “Free health screening for railroad workers” at the Landmark Hotel in Augusta. The screening was sponsored by the Florida law firm of Collins & Wichrowski. Loyal attended the free health screening at the hotel. Among other tests, an audiogram hearing test was performed. At that time, “[i]t was told to me that I had a definitive hearing loss according to that graph.” It was only after this hearing test that Loyal first “became aware that [he] had this hearing loss.” Apparently, job-related mandatory hearing tests performed prior to his retirement did not indicate any injury. According to Loyal, “I really wasn’t — it’s just been since I had a hearing test done that I really knew that I did have a hearing problem and have really noticed it so much more.”

On September 30, 1996, Loyal and two other retired railroad employees allegedly suffering employment-related hearing loss filed the instant action in the State Court of Bibb County seeking $10 million in damages. The plaintiffs were represented by, inter alia, the law firm of Collins & Wichrowski. As to Loyal’s cause of action, Norfolk Southern filed a motion for summary judgment, asserting that Loyal’s claim was barred by the release he signed at the time he accepted the railroad’s early retirement compensation package. The trial court agreed and granted summary judgment to Norfolk Southern. Held:

In a FELA case, federal law governs substantive issues as to the validity of a release. Dice v. Akron &c. R. Co., 342 U. S. 359, 361 (72 SC 312, 96 LE 398) (1952); Eubanks v. CSX Transp., 223 Ga. App. 616, 617 (478 SE2d 387) (1996). The party attacking the release “must bear the burden of showing that the contract he has made is tainted with invalidity, either by fraud practiced upon him or by a mutual mistake under which both parties acted.” Callen v. Pennsylvania R. Co., 332 U. S. 625, 630 (68 SC 296, 92 LE 242) (1948); Eubanks v. CSX Transp., supra at 618.

Here, however, Loyal does not claim fraud, mutual mistake, or lack of consideration. He concedes that he knowingly and voluntarily signed the release in exchange for the $50,000. Instead, Loyal claims that the release is void as a matter of law because it serves to exempt Norfolk Southern from FELA liability which is proscribed by 45 USC § 55, which states: “Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act [cit.], shall to that extent be void.”

While Loyal recognizes that under federal law a release of a FELA claim may act as a bar to subsequent litigation of that claim, Loyal maintains that such a release is valid only as to claims regarding injuries which are known at the time the release is executed and cannot serve to exempt an employer from liability for an injury that was unknown when the release was executed. Although such is not the law under FELA, Loyal argues that a general release is void ab initio to the extent that it applies to an injury unknown at the time of settlement.

The resolution of this case requires a two-prong analysis: (1) whether, as per Loyal’s contention, the instant release is invalid as a matter of law when applied to a claim for an injury that was unknown at the time the release was signed; and (2) if the instant release is not invalid as a matter of law when applied to an injury unknown at the time of execution, whether such release applies to Loyal’s claim of job-related hearing loss so as to support summary judgment.

1. In Callen, the United States Supreme Court refused to invalidate a general release of “ ‘all claims and demands which I have or can or may have against the said Pennsylvania Railroad Company,’ ” id. at 626, even though the plaintiff in Callen contended that such release “violates § 5 of the Federal Employers’ Liability Act.” Id. at 630. Further, in Hogue v. Southern R. Co., 390 U. S. 516 (88 SC 1150, 20 LE2d 73) (1968), the Court examined a contract that released an employer for injury in excess of that known at the time the release was signed. The Court determined that there was “no occasion to decide whether the release here involved violated [45 USC § 55],” and the Court specifically noted that a “release may otherwise bar recovery.” Id. at 518. These results could not have been obtained if a general release of claims known and unknown is in violation of 45 USC § 55 as a matter of law, as argued by Loyal.

As a point of law, we do not agree with Loyal that the validity of a release turns upon the status of a claimed injury as known or unknown at the time the release is signed. Instead, we accede to Loyal’s request made during oral argument and find guidance with regard to this issue in the recent Third Circuit case of Wicker v. Consolidated R. Corp., 142 F3d 690 (3rd Cir. 1998). As to a general release regarding claims of injury unknown at the time the release is signed, the Wicker court determined that “it is entirely conceivable that both employee and employer could fully comprehend future risks and potential liabilities and, for different reasons, want an immediate and permanent settlement. The employer may desire to quantify and limit its future liabilities and the employee may desire an immediate settlement rather than waiting to see if injuries' develop in the future. To put it another way, the parties may want to settle controversies about potential liability and damages related to known risks even if there is no present manifestation of injury.” (Emphasis supplied.) Wicker, supra at 700-701 (10). Clearly, in an industry, such as the railroad industry, that has a number of known occupational risks and diseases, it is important to both the employer and employee to be able to settle potential claims regarding injuries or diseases prior to actual discovery.

The correctness of an analysis that turns on the known risk of injury, as opposed to a known actual injury, is completely supported by the Supreme Court’s decision in Callen, where the Court held, “It is obvious that a release is not a device to exempt from liability but is a means of compromising a claimed liability and to that extent recognizing its possibility.” (Emphasis supplied.) Callen, supra at 631. Under this analysis, a valid release may encompass an injury that is unknown at the time of its execution, if the possibility of such injury is known. Accordingly, we hold that the instant release does not violate 45 USC §55 as a matter of law simply because it is applied to a claim for an injury that was unknown at the time the release was signed, if the possibility of such injury was known. In so holding we avoid the set aside of successive settlements of known occupational diseases and repeated litigation when subsequent injuries from such occupational diseases manifest themselves over time.

2. In determining whether the instant release applies to Loyal’s claim of job-related hearing loss so as to support summary judgment, we look to the record. “FELA cases are inherently fact-bound. The evaluation of the parties’ intent at the time the agreement was made is an essential element of this inquiry.” (Citations and punctuation omitted.) Wicker, supra at 700 (10). “[T]he meaning to be given to the words of a contract must be the one that carries the intent of the parties as determined by the circumstances under which the contract was made.” (Citation and punctuation omitted.) Id.; see also Driscoll v. Schuttler, 697 FSupp. 1195, 1203 (N.D. Ga. 1988); see Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 256 (2) (381 SE2d 322) (1989); compare Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308) (1986).

(a) We conclude that, on its face, the release signed by Loyal was an unambiguous compromise and settlement of all claims for injuries known or unknown that may arise under the Act. Norfolk Southern paid Loyal the sum of $50,000 in “recognition of the possibility” of claimed liability under the Act for known risks of injury. Callen, supra at 631; Panichella v. Pennsylvania R. Co., 268 F2d 72 (3rd Cir. 1959).

Unlike the cases upon which he relies, Loyal was not required, tangentially, to sign the instant release in order to enjoy other, unrelated benefits of employment, such as employment relief fund benefits or entitlement to living expenses. The record shows that Loyal qualified for immediate retirement benefits because of his medical disability without signing the release. The “early retirement” benefits package was in addition to such medical disability retirement.

Also, because early retirement is a choice that results in the cessation of employment, seeking a settlement of all employment-related claims through the signing of a release was neither unrelated, unreasonable, nor tangential to the purpose for offering and accepting the early retirement option.

(b) Loyal does not contend that he was unaware at the time the release was signed that it encompassed all claims of injury both known and unknown, as specifically and unambiguously stated in the contract. In fact, since there were no known injuries at the time the release was signed, Loyal cannot and does not contend that the language of the release addressed any actual injury. This fact serves to underscore the parties’ understanding that the release was in settlement of injuries unknown at the time of signing.

We are not persuaded by Loyal’s argument, apparently made for the first time before this Court, that the $50,000 was in consideration for surrendering his right of employment, especially when the language of the release specifically states that the $50,000 was in consideration of surrender of employment and release of any claims known or unknown connected with his employment. Further, as reflected in his own testimony, Loyal “surrendered his right of employment” when he decided to take medical disability retirement, which was not contingent upon accepting the early retirement option. It appears he signed the release of all claims in order to obtain the $50,000.

(c) We find that hearing loss was a risk known and foreseeable to Loyal at the time he signed the release. Notably, although Loyal contends that he was unaware of any hearing loss at the time he signed the release, Loyal has never contended that he was unaware of the risk of hearing loss at the time he signed the release. In fact, Loyal was well aware that he was exposed to excessive noise on the job and complained about such to a railroad superintendent. In that regard, Loyal had regular hearing tests as a part of his employment and testified that “it was normal every — seems like it was every three years or something you had to do an annual thing such as this [audiogram hearing test] or something.” Thus, if the actual hearing loss, itself, was not apparent to Loyal at the time he signed the release, certainly the issue of potential hearing loss was, which issue was brought home to Loyal by repeated mandatory hearing tests.

Moreover, Loyal was a railroad union member and attended railroad safety meetings. Both Loyal and the railroad knew of the risk of hearing loss to engineers. As was acknowledged during oral argument before this Court, by the time of Loyal’s retirement, hearing loss had been a safety issue in the railroad industry for many years. In fact, at the time of Loyal’s retirement, cases involving hearing loss as a result of railroad employment were legion all over the country. Accordingly, under the facts of this case, job-related hearing loss was a risk known to Loyal at the time he signed the release.

(d) “The cardinal rule of construction is to ascertain the intention of the parties. If that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction.” OCGA § 13-2-3; Virginia Impression Products Co. v. SCM Corp., 448 F2d 262 (4th Cir. 1971). If the terms of a release are unambiguous, the legal effect of the language is a question of law to be resolved summarily. Travelers Ins. Co. v. Blakey, supra at 700; Westminster Group v. Perimeter 400 Partners, 218 Ga. App. 293, 294 (1) (460 SE2d 827) (1995).

Decided October 2, 1998

Reconsideration denied October 14, 1998

Edward S. Cook, Lawrence H. Cooper, for appellant.

Hall, Bloch, Garland & Meyer, Mark E. Toth, Kimberly C. Harris, for appellees.

In the present case, the unambiguous language of the release evinces a clear intent to settle and release liability for “any claim . . . demand, action or cause of action, of any kind whatsoever, known or unknown” arising out of or connected with Loyal’s employment with Norfolk Southern. Loyal has the burden to demonstrate that the release is invalid as to his claim of hearing loss. Callen, supra at 630; Eubanks v. CSX Transp., supra at 618. He has not done so. Consequently, the trial court did not err in granting summary judgment to Norfolk Southern.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       The record negates the implication made during oral argument that Loyal’s medical disability retirement could have been denied had he not also opted for early retirement and signed the release. In fact, Loyal specifically testified that he qualified for a medical disability retirement, even without 20 years of service. Loyal testified that “at the same time they were offering to buy seniority of engineers, reduction of forces, whereby they paid $50,000 if you were to give up your seniority. So at the time they came up with that, I found out that I could go on the railroad disability.”

       At the time of this action, Loyal receives $1,500 per month in disability retirement benefits.

       Section 5 of the Employers’ Liability Act of April 22, 1908, Ch. 149, 35 Stat. 65. Section 5 was substantively identical to the present § 55.

       Only the Sixth Circuit has adopted a bright line rule that a release may be valid only with regard to injuries that are known at the time the release is executed. See Babbitt v. Norfolk &c. R. Co., 104 F3d 89 (6th Cir. 1997); Damron v. Norfolk &c. R. Co., 925 FSupp. 520 (N.D. Ohio 1995). The majority of courts have not so found. See Panichella v. Pennsylvania R. Co., 268 F2d 72 (3rd Cir. 1959); Wilson v. CSX Transp., Civil Action No. 91-1398 (W.D. Pa. 1994); Williams v. Norfolk Southern Corp., CA 1:92-CV-545 (N.D. Ga. 1993); Satterfield v. CSX Transp., No. 93-002 (W.D. Va. 1993); Loose v. Consolidated R. Co., 534 FSupp. 260 (E.D. Pa. 1982); see also Virginia Impression Products Co. v. SCM Corp., 448 F2d 262 (4th Cir. 1971).

       See Philadelphia &c. R. Co. v. Schubert, 224 U. S. 603 (32 SC 589, 56 LE 911) (1912); Duncan v. Thompson, 315 U. S. 1 (62 SC 422, 86 LE 575) (1942); Baltimore &c. R. Co. v. Gawinske, 197 F 31 (3rd Cir. 1912). The cases cited by Loyal involve instruments which, tangentially to other purposes, attempted to exempt the employer from liability under FELA with no suitable specific consideration therefor.

       See, e.g., 49 Code of Federal Regulations § 229.121, Locomotive Cab Noise, amended in 1980 in response to repeated safety concerns in order to regulate permissible exposure to continuous noise in a locomotive cab.

       See, e.g., Jones v. Maine Central R. Co., 690 FSupp. 73 (D. Maine 1988) (27 plaintiffs sought recovery for hearing loss); Campbell v. Consolidated R. Corp., Civ. A. No. 87-2312 (E.D. Pa. 1988) (38 plaintiffs brought suit for hearing loss); see also Singleton v. Consolidated R. Corp., C-1-85-119 (S.D. Ohio 1986); Stokes v. Union Pacific R. Co., 687 FSupp. 552 (D. Wyoming 1988); Courtney v. Union Pacific R. Co., 713 FSupp. 305 (E.D. Ark. 1989); Colley v. Burlington Northern R. Co., No. 88-1088-CV-W-9 (W.D. Missouri 1990); Kragel v. Long Island R. Co., No. 88-Civ. 4800 (S.D. N.Y. 1990).