author: Barnes, Judge. Blackburn, Presiding Judge,

text:
    A99A0658.
    KWON v. THE STATE.
    (517 SE2d 83)
   Barnes, Judge.

The trial court found Sung Kwon guilty of family violence battery following a bench trial. Kwon appeals, contending the trial court should not have considered hearsay statements his wife made to the police and an investigator of the solicitor. We disagree and affirm.

The record shows that appellant’s wife, the victim, asserted her marital privilege and refused to testify against her husband. Officer James Jolly testified that he was the first police officer to respond to a report of a possible domestic disturbance in a hotel parking lot. When he arrived, he observed a woman lying down in the parking lot with a male standing over her who “appeared to be quite agitated.” He was walking on the balls of his feet, his arms were tensed, and he was speaking in Korean to the woman, who was on the ground crying hysterically. According to Officer Jolly, the man “was still very angry.” Because the woman was visibly injured and crying, the police officers separated the couple and called an ambulance.

Detective James Stewart interviewed the victim on the scene and she told him that she learned her husband was staying at the hotel by using “Star 69” when he called her at home the night before the incident. The next day, she called her husband when she was in the hotel area and told him that she wanted to talk with the woman he was staying with in the hotel. Her husband told her that he would talk to her instead. The victim told Detective Stewart that her husband came outside and hit and kicked her in the head, chest, and back. Detective Stewart observed marks on her back, stomach, and chest.

Officer Gail Higgenbotham testified that she also asked the victim about the cause of her injuries, and the victim told her that “her husband had beat her up and kicked her and hit her.”

Kelly O’Brien, a victim advocate employed by the solicitor’s office, testified that she interviewed the victim three days later. In this interview, the victim told O’Brien that she had gone to the hotel because her husband was there with another woman and she planned to beg the other woman to let her husband come home. When her husband came out, he beat and kicked the victim everywhere, including her head, and threw her on the floor.

The defendant testified and admitted that he left the hotel room to talk with his wife after she phoned him. He denied hitting or kicking his wife, claiming that his wife was beaten by three women who were friends of the woman with whom he was staying in the hotel. He further testified that these women, whom he could not identify, had run away by the time the police arrived and that he had tried to stop the fight.

Decided April 29, 1999

Reconsideration dismissed June 23, 1999.

Frank G. Smith, Simon H. Ahn, for appellant.

We find no error in the admission of the wife’s statements by the trial court. OCGA § 24-3-1 (b) provides that necessity will justify the admission of hearsay testimony. “The two prerequisites for the admission of hearsay because of necessity are 1) necessity, and 2) particularized guarantees of trustworthiness.” Luallen v. State, 266 Ga. 174, 178 (5) (465 SE2d 672) (1996). See also Drane v. State, 265 Ga. 663, 664 (1) (461 SE2d 224) (1995).

In this case, the refusal of Kwon’s wife to testify based upon marital privilege fulfills the first requirement. Id. We also find sufficient guarantees of trustworthiness. The victim made her statement to the police officers within minutes of her injuries, gave a similar statement to the victim advocate three days later, and has never attempted to recant or disavow her statements. In addition, Officer Jolly responded to the domestic disturbance call within “less than a minute” and the defendant was the only person in the vicinity of the victim at that time. The trial court did not err when it admitted the wife’s statements. Id.

Judgment affirmed.

Blackburn, P. J, and Senior Appellate Judge Harold R. Banke concur specially.

Blackburn, Presiding Judge,

concurring specially.

I concur fully with the majority opinion. I am writing specially to specifically point out that hearsay evidence admitted under an exception to the hearsay rule has that probative value which the jury would care to attach to it. See Hardee’s Food Systems v. Green, 232 Ga. App. 864, 866 (502 SE2d 738) (1998). See also cf. Glisson v. State, 188 Ga. App. 152 (372 SE2d 462) (1988). Therefore, such evidence is also excepted from the general rule that hearsay evidence has no probative value even if admitted without objection. Id. See also Lang v. State, 201 Ga. App. 836, 838 (412 SE2d 866) (1991).

I am authorized to state that Senior Appellate Judge Harold R. Banke concurs in this opinion.

Gerald N. Blaney, Jr., Solicitor, Tracy S. Drake, Assistant Solicitor, for appellee.


source: Caselaw Access Project

author: Blackburn, Presiding Judge.

license: Public Domain

text:
    A99A0717.
    SATILLA REGIONAL MEDICAL CENTER v. DIXON.
    (518 SE2d 723)
   Blackburn, Presiding Judge.

This workers’ compensation appeal is from the superior court’s order reversing the award of the administrative law judge, which was adopted by the State Board of Workers’ Compensation Appellate Division. We granted Satilla Regional Medical Center’s discretionary application to consider whether the superior court applied an incorrect standard of review in reversing the award of the State Board.

In his award, the ALJ made the following findings: Peggy Lee Dixon was a licensed practical nurse at Satilla, and her regular job was taking care of post-operative surgical patients, which required lifting and moving them. Dixon had suffered from back pain all her life. She also had high blood pressure, angina, and a host of other medical problems. As recently as two months prior to her alleged on-the-job injury, Dixon was hospitalized for chest pain and was prescribed medication for back pain at that time.

Dixon alleges she suffered a back injury on October 15, 1996, when she lifted a patient. She sought medical attention the next day, which revealed a possible small herniated disc at L5-S1. Dixon testified that she informed her supervisor of the injury on October 18, 1996, but her supervisor disputed this testimony and insisted that although Dixon informed her that her back hurt, she never mentioned an on-the-job injury.

Dixon did not work for the next two days. She returned to work for two days, but was then hospitalized for chest pain and elevated blood pressure. She complained of severe low back pain, but made no mention of the cause.

Satilla’s risk manager visited her in the hospital. She told him that she thought that she had injured her back while working and wanted workers’ compensation benefits. He questioned Dixon further, but she could not say where, when or how she was hurt and indicated that she had not reported the matter to her supervisor. On October 28, 1996, she underwent a heart catheterization, but after-wards complained to her doctor that her primary problem was lower back pain. She was examined by a neurosurgeon, who noted the small bulge at L5-S1, but did not believe it was significant or was the source of her severe pain.

Another neurosurgeon examined Dixon in January 1997, and she reported to him that her longstanding lower back pain increased substantially after lifting some patients in October 1996. This is the first undisputed instance of record where Dixon attributed her back pain to a work-related injury. Another neurosurgeon examined her in August 1997, and diagnosed degenerative disc disease. This physician then performed a diskectomy and fusion at L5 on Dixon.

Dixon filed a notice of claim on March 31, 1997, more than five months after her alleged injury. Satilla controverted the claim, and a hearing was held on the matter. In his award, the ALJ noted that the claimant has the burden of proof in workers’ compensation cases to show that she suffered an accidental injury which arose out of and in the course of her employment. Zamora v. Coffee Gen. Hosp., 162 Ga. App. 82, 83 (290 SE2d 192) (1982). The ALJ found that Dixon failed to meet this burden, that she was unaware of an injury occurring while lifting patients and only later determined, as her condition worsened, that she must have been injured while doing so. The ALJ further found that Dixon had failed to give timely notice of the injury to her employer, as required by OCGA § 34-9-80. Accordingly, benefits were denied, and the appellate division affirmed the award.

The superior court reversed and remanded, holding that the ALJ and appellate division “failed to consider the entire record in this matter and based their Awards on a partial or incorrect reading and/ or application of the evidence presented by [Dixon].” The superior court did not indicate what part of the record was not considered or which evidence was incorrectly read. The court further held that Dixon, “as a matter of law” gave appropriate notice of her injury. Satilla appeals from this order.

1.

On appeal of an award or denial of workers’ compensation benefits, the superior court may not substitute its findings for the appellate division’s findings of fact, and when sitting as an appellate body, it is bound by the “any evidence” standard of review and is not authorized to substitute its judgment as to weight of the evidence or the credibility of the witnesses.

Owens-Brockway Packaging v. Hathorn, 227 Ga. App. 110, 111 (488 SE2d 495) (1997). Furthermore, “[i]n reviewing a workers’ compensation award, both this court and the superior court must construe the evidence in the light most favorable to the party prevailing before the appellate division.” (Punctuation omitted.) Southwire Co. v. Molden, 223 Ga. App. 389, 390 (477 SE2d 646) (1996). Satilla correctly argues that the superior court was bound to apply the “any evidence” standard of review and thus erred in holding that the State Board made its award on a partial or incorrect reading of the evidence. While there was some evidence to support Dixon’s position, there was ample evidence to support the AL J’s findings that Dixon did not meet her burden of proving that the injury arose out of and in the course of her employment. See Zamora, supra. Accordingly, the superior court committed clear error in reversing on this ground.

Decided May 27, 1999

Reconsideration denied June 23, 1999.

Workers’ compensation. Ware Superior Court. Before Judge Newton.

Walker & Sweat, Bruce M. Walker, for appellant.

Hackel & Hackel, Thomas M. Hackel, for appellee.

2. Likewise, Satilla correctly argues that the superior court erred in ruling that, “as a matter of law,” Dixon gave timely notice to her employer of her injury. OCGA § 34-9-80 requires that an employee give notice of an on-the-job injury to her employer within 30 days. Although the notice need not be in a particular format, it must at least “ ‘put[ ] the employer on notice of the injury so that it may make an investigation if it sees fit to do so.’ [Cit.]” Schwartz v. Greenbaum, 236 Ga. 476 (1) (224 SE2d 38) (1976). Here, again, the superior court erred in failing to apply the “any evidence” rule. Although the ALJ could have chosen to credit Dixon’s testimony that she orally informed her supervisor of the injury three days after it allegedly occurred, he chose instead to credit the testimony of Dixon’s supervisor and Satilla’s risk manager. Under the “any evidence” rule, this finding should not have been disturbed, and the award should have been affirmed on this ground.

For the foregoing reasons, the superior court erred in reversing the holding of the ALJ which was adopted by the full Board.

Judgment reversed.

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


author: Eldridge, Judge. Smith, Judge,

text:
    A99A0414.
    SMITH v. VENCARE, INC.
    (519 SE2d 735)
   Eldridge, Judge.

Portia Gardner Smith, wife of plaintiff-appellant Delarett Smith, suffered from a progressive neurological disease and had to have a tracheotomy that left her unable to speak, because she was on a ventilator. Communications were made by eye movement; however, on April 20, 1995, Glenda Ward, a respiratory therapist, placed a Passey-Muir valve into Mrs. Smith’s tracheotomy tube, allowing her to speak after a fashion when the respirator was not in use. Thereafter, communication was by verbal “yes” or “no” responses to leading questions, by counting one to four for “no” and five to eight for “yes,” or by eye movement.

In January 1995, Mrs. Smith was admitted to Vencor Hospital Atlanta. Vencor Hospital was owned and operated by Vencor, Inc. Vencare, Inc. is a separate and distinct legal entity from Vencor, Inc. No employees or agents of Vencare, Inc. were involved with Mrs. Smith or the plaintiff. On April 20, 1995, and until May 31, 1995, Vencor Hospital refused to allow plaintiff to see his wife.

Ms. Ward testified that, when Mrs. Smith could speak for the first time, Mrs. Smith told her that plaintiff had hurt her in the past, he was trying to kill her, and she was afraid of him and did not want him to visit her. Mrs. Smith asked for Hank Selinger, the hospital social worker, and told him the same things about plaintiff in Ms. Ward’s presence. Selinger, in Ms. Ward’s and Hospital Security/ Safety Manager Ernest Carter’s presence, heard Mrs. Smith respond “no” to the question did she want the plaintiff to visit her and “yes” to the questions was she afraid of plaintiff and did she want Adult Protective Services contacted regarding plaintiff. On April 20, 1995, Dr. David N. DeRuyter, Mrs. Smith’s attending pulmonary therapist, who had a problem with the plaintiff regarding the manipulation of his wife’s shoulder, learned through communication with Mrs. Smith that she was afraid of the plaintiff and that she did not want to be alone with him.

The psychologist evaluating Mrs. Smith for the Probate Court of Fulton County found that she had an undeterminable, residual mental status and that she was “unable to formulate and communicate rational, informed decisions concerning her person or property.” On April 20, 1995, when Mrs. Smith was evaluated as to mental status, she responded that her name was Portia Smith; that the year was 1991, but with prompting 1994; and that her location was the hospital. On April 21,1995, Selinger talked to Mrs. Smith again, and she told him the names of her brother, Harvey Gardner, who lived in East St. Louis, Illinois and her sister, Harriett Lacy. On the same day, Selinger contacted Gardner and Lacy and told them what Mrs. Smith told him about plaintiff. Selinger claimed that Gardner and Lacy told him that they did not trust the plaintiff and that plaintiff may have poisoned their sister.

Selinger reported Mrs. Smith’s statements and fears to Skip Wright, the hospital administrator. To protect Mrs. Smith and at her specific request, plaintiff’s visiting rights were suspended. Selinger also told others who cared for and protected Mrs. Smith of the concerns raised by Mrs. Smith and Mrs. Smith’s siblings.

Mercedes Murrell, the court-appointed guardian, testified that “Vencor Hospital employees who were present in the room when I went to visit Portia Smith told me that they believed Delarett Smith [plaintiff] was abusing his wife and that he had attempted to kill her by putting rat poison in her feeding tube. However, when I asked them if they had performed any tests to determine if Portia Smith had in fact been poisoned, they responded ‘No.’ ”

On April 19, 1996, plaintiff sued Vencare, Inc. doing business as Vencor Hospital, Selinger, and two “John Doe” defendants in the State Court of Fulton County for slander and for loss of consortium. On September 16, 1997, Vencare, Inc. and Selinger moved for summary judgment. Vencare, Inc. raised the defense that it was not a proper party to the suit. On October 20, 1997, plaintiff filed a motion to amend his complaint, add additional defendants, Vencor, Inc., Ward, and Wright, drop Vencare, Inc., and to strike Selinger’s affidavit. On April 15, 1998, after oral argument, the trial court denied plaintiff’s motions and granted summary judgment to the defendants. On May 14, 1998, plaintiff filed his notice of appeal.

1. Plaintiff contends that the trial court erred in failing to strike the portions of Selinger’s testimony which conflicted with his earlier testimony. We do not agree.

Plaintiff contends that Selinger’s second affidavit conflicts with the first affidavit, his interrogatory answers, and his notes attached to the affidavit, because such earlier testimony failed to state that Mrs. Smith’s siblings or family told Selinger that plaintiff may have poisoned his wife.

The rule in Georgia is that the testimony of a party who offers himself as a witness in his own behalf at trial is to be construed most strongly against him when it is self-contradictory, vague or equivocal. Where the favorable portion of a party’s self-contradictory testimony is the only evidence of his right to recover or of his defense, the opposing party is entitled to a directed verdict.

(Citations and punctuation omitted.) Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986).

In each case, whether on motion for summary judgment or at trial, it must be decided if the testimony of a party-witness is contradictory. On summary judgment this is a question for the judge to decide. It is contradictory if one part of the testimony asserts or expresses the opposite of another part of the testimony.

Id. at 30 (2).

Prophecy Corp. rests on the principle that a party knows what he has sworn and may not swear in contradiction to that which he has sworn to be true without explanation. The rule was not intended to apply to an unsworn statement of a party-witness, and we decline to so extend it.

(Citations omitted.) Shiver v. Norfolk-Southern R. Co., 269 Ga. 168, 169-170 (496 SE2d 903) (1998). Thus, the rule under Prophecy Corp. is narrower than for impeachment by prior inconsistent or conflicting statements.

“As the absence of the additional facts in a prior statement given by the State’s witness fails to amount to a contradiction of her trial testimony, there could be no impeachment under OCGA § 24-9-83 [.]” (Citations and punctuation omitted.) Weathers v. State, 198 Ga. App. 871 (2) (403 SE2d 449) (1991); accord Shearer v. State, 259 Ga. 51, 52 (5) (376 SE2d 194) (1989); England v. Ga.-Fla. Co., 198 Ga. App. 704, 707 (5) (402 SE2d 783) (1991).

To constitute a self-contradiction it is not a mere difference of statement that suffices; nor yet is an absolute oppositeness essential; it is an inconsistency that is required. As a general principle, it is to be understood that this inconsistency is to be determined, not by individual words or phrases alone, but by the whole impression or effect of what has been said or done.

(Citations and punctuation omitted; emphasis supplied and omitted in part.) Hightower v. State, 227 Ga. App. 74, 77 (487 SE2d 646) (1997).

Therefore, if the more expansive definition of contradictory or inconsistent statement for purposes of impeachment does not include omissions from earlier statements as constituting a “contradiction,” then, for purposes of the more restrictive Prophecy Corp.’s “contradictory, vague and equivocal” standard, the same criteria should apply. Further, the facts omitted from the earlier statements and testimony do not cause a conflict with the latter testimony; such testimony is merely fuller, more expansive, and complete. Therefore, the trial court did not err in denying the motion to strike Selinger’s affidavit.

2. Plaintiff contends that the trial court erred in granting Selinger’s motion for summary judgment based on the defense of privilege. We agree.

Harriet Lacy testified that she did not tell Selinger that she did not trust the plaintiff or that she or the family believed that the plaintiff had poisoned her sister. Norma Frye testified that, on either April 21 or 22, 1995, she went to see Mrs. Smith and asked her if she was afraid of the plaintiff and if he had hurt her, to which questions Mrs. Smith indicated no. Howard Smith, plaintiff’s brother, testified that, on either April 21 or 22, 1995, he visited Mrs. Smith and asked her if she wanted to see the plaintiff, to which she indicated yes. She also indicated that the plaintiff had never hurt her and that someone in the hospital was trying to hurt her. Such evidence conflicts with defendants’ evidence, creating a jury question as to whether Mrs. Smith made the statements, and if she made the statements, whether she was competent and credible, because her alleged statements were in direct conflict.

Plaintiff testified that Harvey Gardner had not seen Mrs. Smith since the fall of 1993. Thus, Gardner was not in a position to render any reasonable opinion as to the care and treatment of his sister or her possible poisoning by plaintiff.

(a) Such testimony of the plaintiff’s witnesses and defense witnesses are in direct contradiction to what Mrs. Smith indicated in communication to each of them. Since the questions were in each case leading, requiring either a yes or no answer, and Mrs. Smith had, at a minimum, a confused mental status, then all of her statements were questionable as to truth, accuracy, or reliability. Mrs. Smith’s mental status was that of a frightened, suffering, terminally ill person with poor oxygen supply to the brain, as indicated by the necessity of the respirator. The conflicts in her statements created a dispute as to a material issue of fact as to good faith privilege and a jury question as to whether Mrs. Smith made the statements and whether her mental status was such that the statements were not credible. The trial court must draw all reasonable, favorable inferences in favor of the respondent on summary judgment, which was not done by the trial court. OCGA § 9-11-56 (e); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

(b) However, assuming that Harriet Lacy and Harvey Gardner did, in fact, make the statement to Selinger that they did not trust the plaintiff and that the plaintiff may have poisoned his wife, and assuming likewise, that the statements of Mrs. Smith were made, such statements cannot be taken at face value, but must be examined in the exercise of ordinary care to determine if they are reasonable or the product of a delusional, terminally ill woman on a respirator.

(c) For the defense of qualified privilege to exist, it must be made: (1) in complete good faith; (2) with an interest to uphold; (3) by a statement properly limited in scope; (4) on a proper occasion; and (5) by publication to a proper person. Baskin v. Rogers, 229 Ga. App. 250, 253 (4) (493 SE2d 728) (1997); Sherwood v. Boshears, 157 Ga. App. 542, 543 (278 SE2d 124) (1981); Land v. Delta Airlines, 147 Ga. App. 738 (250 SE2d 188) (1978); Lamb v. Fedderwitz, 71 Ga. App. 249 (30 SE2d 436) (1944). Where the communication is not fair and honest, the qualified privilege does not exist. Finish Allatoona’s Inter state Right v. Burruss, 131 Ga. App. 572, 575 (1) (206 SE2d 679) (1974); see also Horton v. Georgian Co., 175 Ga. 261, 273-274 (4) (165 SE 443) (1932). In this case, the inquiry focuses on the element of good faith, alone.

The absence of any one or more of these [five] constituent elements will, as a general rule, prevent the party from relying upon the privilege. All these questions are, however, generally questions of fact for a jury to determine according to the circumstances of each case. [Cit.]

Duchess Chenilles, Inc. v. Masters, 84 Ga. App. 822, 829 (4) (67 SE2d 600) (1951).

The absence of a good faith belief in the truth of a slanderous statement prevents a qualified privilege. Baskin v. Rogers, supra at 253. Likewise, the failure to exercise ordinary care to reasonably ascertain the truth or accuracy of the statement may show a lack of good faith when the facts and circumstances require such exercise. Triangle Pub. v. Chumley, 253 Ga. 179, 180-182 (1) (317 SE2d 534) (1984); Diamond v. American Family Corp., 186 Ga. App. 681, 683 (368 SE2d 350) (1988); Minton v. Thomson Newspapers, 175 Ga. App. 525, 527 (333 SE2d 913) (1985).

(d) Thus, the question becomes whether or not such statements could become the basis for a good faith privilege, absent the exercise of ordinary care to determine if it was reasonable to rely upon such statements without further investigation into their truth prior to republication. Inquiry into the standard of ordinary care asks what same or similarly situated persons would do who assert such conditional privilege prior to republication. While the standard of ordinary care applies to defamation by publishers or broadcasters in regard to private individuals, such standard is also appropriate to determine the element of good faith for the protection of a conditional privilege. OCGA § 51-5-7 (2), (3); Triangle Pub. v. Chumley, supra at 180-182 (1); Diamond v. American Family Corp., supra at 683; Minton v. Thomson Newspapers, supra at 527.

Not only was the publication thus conditionally privileged but the law does not require a publisher to conduct an independent investigation unless the [original statement] was such as to raise serious doubts as to the truth of the [statement]. St. Amant v. Thompson, 390 U. S. 727, 733 (88 SC 1323, 20 LE2d 262) [(1968)]. See also Williams v. Trust Co. of Ga., 140 Ga. App. 49, 55 (230 SE2d 45) [(1976)].

Minton v. Thomson Newspapers, supra at 527. Absent such requirement to exercise ordinary care, one possessed of a conditional privilege can with impunity republish what is prima facie defamatory, what is an obvious mistake, or what comes from a patently unreliable source, i.e., a known enemy; political rival; a romantic rival; a mentally ill, mentally impaired, sick, or incompetent person; or someone under the influence of drugs or alcohol. Accordingly, whether or not Selinger had a qualified privilege to repeat such statements depends upon the reasonableness of assigning credibility to the statement.

Under the facts and circumstances, the issue is whether a reasonable person would make further inquiry prior to republication of the statements, or whether the statements were republished with a reckless disregard as to whether or not it was false. Sherwood v. Boshears, supra at 543; Duchess Chenilles, Inc. v. Masters, supra at 829 (4).

But “talebearers are as bad as talemakers.” Every repetition of a slander originated by a third person is a wilful publication of it, rendering the person so repeating it liable to an action, and it is no defense that the speaker did not originate the slander, but heard it from another, even though he in good faith believed it to be true.

(Citations and punctuation omitted.) Baskin v. Rogers, supra at 252. Thus, an individual cannot have exercised good faith for a conditional privilege when they republish unreasonable statements or statements obtained under circumstances that would put a reasonable person on inquiry as to the truth and accuracy of the statement. Publication of a statement “with reckless disregard as to whether or not it was false” cannot be complete good faith for purposes of a qualifled privilege. OCGA § 51-5-7; Sherwood v. Boshears, supra at 543; see also Baskin v. Rogers, supra at 252. This is a matter for jury determination.

(e) Also, the record showed that plaintiff had difficulties and confrontations with Selinger and other Vencor Hospital staff from the beginning of the hospitalization in January 1995, and plaintiff wanted to remove his wife from its care.

Plaintiff testified that he had a number of disagreements with Selinger and the Vencor Hospital staff that led him to make complaints regarding the care and treatment of Mrs. Smith prior to April 20, 1995. On February 27, 1995, plaintiff told Selinger that he wanted Mrs. Smith discharged for treatment at home, and again on March 30, 1995, after a confrontation with Selinger over visitation times, plaintiff demanded that she be discharged to home care. Plaintiff had disputes with staff over: (1) whether he caused the injury to Mrs. Smith’s shoulder while conducting range of motion exercises; (2) when he could visit his wife; (3) the fact that plaintiff was stuck by a used surgical needle left in a chair; (4) the fact that his wife had a nick and big bruise on her scalp; and (5) that the level of care given to Mrs. Smith by the staff was inadequate. These facts raised the inference of loss of revenue for Vencor Hospital, and the existence of bad motives for the defendants’ actions in making the statements to justify limiting plaintiff’s access to his wife and to make it easier to manage the care of Mrs. Smith without the plaintiff’s interference. The trial court failed to make such inferences favorable to the plaintiff when it found good faith privilege entitled the defendants to summary judgment.

“Aside from consideration of the other criteria, the record contains no evidence supporting a good faith belief by [Selinger] that [plaintiff had attempted to poison his wife by putting rat poison in her feeding tube].” Baskin v. Rogers, supra at 253; see also Kennedy v. Johnson, 205 Ga. App. 220, 223 (3) (421 SE2d 746) (1992). Thus, plaintiff produced some evidence challenging and rebutting the good faith conditional privilege, and raising issues as to why there was no good faith. When there has been some evidence introduced by the plaintiff showing the lack of good faith on the part of the defendants in making the slanderous statements, summary judgment must be denied. Davis v. Trusthouse Forte Hotels Worldwide, 195 Ga. App. 768, 769 (2) (395 SE2d 235) (1990); Tetrault v. Shelton, 179 Ga. App. 746, 748 (2) (347 SE2d 636) (1986); Arrowsmith v. Williams, 174 Ga. App. 690, 693 (4) (331 SE2d 30) (1985); Cleveland v. Greengard, 162 Ga. App. 201, 202 (290 SE2d 545) (1982); Hardway v. Sherman Enterprises, 133 Ga. App. 181, 182 (210 SE2d 363) (1974).

'

“Even assuming, arguendo, that the statement was so privileged, this privilege is conditional rather than absolute, Fedderwitz v. Lamb, 195 Ga. 691 (25 SE2d 414) (1943), and it remains for a jury to determine whether the intention was such as to make the defense complete. Holmes v. Clisby, 118 Ga. 820, 825 [(2)] (45 SE 684) (1903).” Watkins v. Laser/Print-Atlanta, 183 Ga. App. 172, 174 (3) (358 SE2d 477) (1987); accord Cohen v. Hartlage, 179 Ga. App. 847, 849 (348 SE2d 331) (1986).

3: Plaintiff contends that the trial court erred in denying his motion to substitute Vencor, Inc., for Vencare, Inc., and in denying his motion to add Skip Wright and Glenda Ward as substitutes for John and Jane Doe. We agree in part and disagree in part.

(a) Since no pretrial order had been entered prior to plaintiff’s amendment seeking to add additional parties, then leave of the trial court was not necessary to amend the complaint. OCGA § 9-11-15 (a); Clover Realty Co. v. Todd, 237 Ga. 821 (229 SE2d 649) (1976); Newbern v. Chapman Funeral Chapel, 158 Ga. App. 790 (282 SE2d 379) (1981). However, OCGA § 9-11-15 (a) must be read in pari materia with OCGA § 9-11-21 when a new party is added, dropped, or substituted for an existing party, and leave of the trial court must be obtained to add a new party. Clover Realty Co. v. Todd, supra at 822; Young v. Rider, 208 Ga. App. 147, 148 (1) (430 SE2d 117) (1993); Dollar Concrete Constr. Co. v. Watson, 207 Ga. App. 452, 453 (428 SE2d 379) (1993); Slater v. Brigadier Homes, 198 Ga. App. 67, 68 (400 SE2d 338) (1990). Among the factors that the trial court must consider in allowing such amendment adding a new party for another party is the prejudice to the new party and the reasons and justifications for failure to include these parties in the original suit. Aircraft Radio Systems v. Von Schlegell, 168 Ga. App. 109, 111 (2) (308 SE2d 211) (1983). The trial court must exercise its sound discretion in allowing the addition of parties, and denial of joinder is an abuse of discretion where delay is the sole reason for denial; there must be more shown, i.e., prejudice to the additional defendant by delay. Shiver v. Norfolk-Southern R. Co., 220 Ga. App. 483, 484 (469 SE2d 769) (1996). Where the statute of limitation has not run as to a theory of recovery, an amendment allowing joinder of an additional party does not prejudice the party’s rights to a defense on the merits. Bil-Jax, Inc. v. Scott, 183 Ga. App. 516 (359 SE2d 362) (1987). Where the correct defendant was served or acknowledged service, an amendment to correct the real identity of this defendant is not a change of parties, but a correction of a misnomer, even if the statute of limitation has run. London Iron & Metal Co. v. Logan, 133 Ga. App. 692, 695-696 (2) (212 SE2d 21) (1975). Where the defendants can show no harm, the correction of a misnomer of a corporation’s correct name is not an abuse of discretion. Kelley v. RS & H of N. C., Inc., 197 Ga. App. 236, 238 (2) (398 SE2d 213) (1990). The correction of a misnomer involves no change of parties and does not add a new and distinct party. Abbott v. Gill, 197 Ga. App. 245, 246 (398 SE2d 225) (1990). However, where there is an actual corporation by the same name as the alleged misnomer, there is no simple correction of the name as a misnomer under OCGA § 9-10-132 but a change in actual parties, requiring the appropriate procedure, because the plaintiff has sued the wrong corporate entity. OCGA §§ 9-10-132; 9-11-15 (c); 9-11-17; 9-11-21; Dollar Concrete Constr. Co. v. Watson, supra at 454; U. S. Xpress v. W. Timothy Askew & Co., 194 Ga. App. 730 (391 SE2d 707) (1990); accord Pacific Nat. Fire Ins. Co. v. Cummins Diesel of Ga., 213 Ga. 4 (96 SE2d 881) (1957); Nelson v. Sing Oil Co., 122 Ga. App. 19, 20-21 (176 SE2d 227) (1970); Lamas Co. v. Baldwin, 120 Ga. App. 149, 150 (1) (169 SE2d 638) (1969); cf. Franklyn Gesner Fine Paintings v. Ketcham, 252 Ga. 537, 539-540 (314 SE2d 903) (1984).

Thus, in this case, plaintiff sued the wrong corporate entity, sought to add the correct party, and drop the wrong party. When Vencare, Inc., was served on April 30, 1996, within the statute of limitation, which began to run on the slander on the first republication on April 20 and republication again on May 13, 1995, this placed Vencor, Inc., on notice that it was the true defendant, but for an error under OCGA § 9-11-15 (c). Further, defense counsel, by his affidavit and attached exhibits indicated on June 3, 1996, that Vencor, Inc., and Vencare, Inc., were different corporate entities; that he was representing Vencare, Inc.; and that he would accept service for Vencor, Inc. Thus, the requirements of reasonable notice prior to the running of the statute for slander and for loss of consortium were satisfied. In addition, no prejudice resulted to the defense on the merits. Finally, knowledge that Vencor, Inc., was the true defendant had been satisfied on October 20, 1997. See Robinson v. Piggly Wiggly of Calhoun, 193 Ga. App. 675 (388 SE2d 754) (1989); Trillium Nursing Home v. Thebaut, 189 Ga. App. 411 (375 SE2d 888) (1988); A. H. Robins Co. v. Sullivan, 136 Ga. App. 533 (221 SE2d 697) (1975); Rich’s, Inc. v. Snyder, 134 Ga. App. 889 (216 SE2d 648) (1975).

Also while the untimeliness of the motion without justification prevents the trial judge’s denial as to the slander claim from being an abuse of discretion, Aircraft Radio Systems v. Von Schlegell, supra at 111, the denial as to the loss of consortium claim, which is now well within the statute of limitation, arose from the same occurrence. Thus, there was notice within the statute of limitation, the same counsel represented both corporations, and Vencor, Inc., should have known that there was a mistake in corporate identity, so that the mistake should not have delayed the trial of the case. Dismissal of the entire case as to all parties was an abuse of discretion, because the trial judge determined as a matter of law that plaintiff had no legal claim for loss of consortium, absent a personal injury to her, by the alleged tortious separation from his wife. Shiver v. Norfolk-Southern R. Co., supra at 484. Thus, the trial court’s order shall be vacated and an order not inconsistent with this opinion entered allowing Vencor, Inc. to be made an additional party defendant on the claim for only tortious loss of consortium.

(b) “Where another [ ] wilfully and intentionally, through mechanism, enticement, seduction, and other wrongful means, interferes with this relation[, i.e., consortium with a wife,] he deprives the husband of the consortium of the wife, and the husband has a right of action against him in damages therefor. [Cits.]” McMillan v. Smith, 47 Ga. App. 646 (1) (171 SE 169) (1933). While loss of a wife’s consortium by a husband generally arises out of a personal injury to the wife, any tort that deprives a husband of such property right gives him a right of action for such damages to his rights as shown by the evidence. Id.; see also Pekrol v. Collins, 122 Ga. App. 642, 643-644 (178 SE2d 294) (1970); Chandler v. Gately, 119 Ga. App. 513, 525 (5) (167 SE2d 697) (1969); Pinkerton Nat. Det. Agency v. Stevens, 108 Ga. App. 159, 161-163 (1) (132 SE2d 119) (1963); Davison-Paxon Co. v. Archer, 91 Ga. App. 131, 134 (4) (85 SE2d 182) (1954). Whether or not plaintiff could have been lawfully excluded from the hospital, depriving him legally of the same rights of consortium, would be a defense in mitigation of damages, not properly to be considered on motion to add a party.

When there is a substitution by amendment of a “John Doe” or “Jane Doe” named in the original complaint for the real defendant, OCGA § 9-11-21 does not apply, and OCGA § 9-11-15 (c) is applicable; therefore, leave of court is not necessary for the substitution. Plaintiff in his amendment justified the delay by asserting that these unknown parties were identified through discovery. Therefore, leave of the trial court is not necessary to make such amendment, and the amendment becomes effective when filed. After such amendment has been made, the trial court shall determine if the conditions of OCGA § 9-11-15 (c) allow the amendment to relate back where the statute of limitation has run on a theory of recovery. Bishop v. Farhat, 227 Ga. App. 201, 202-203 (1) (489 SE2d 323) (1997). Since no order to add such parties was necessary, then the denial of the right to add the additional parties will be treated as a dismissal after the trial court has made such determination that there should be no relation back. OCGA § 9-11-15 (c); Bishop v. Farhat, supra at 202-203.

The statute of limitation for slander as an injury to reputation is one year; however, a tortious act that involves loss of consortium is four years from the accrual of the right of action. OCGA § 9-3-33. Thus, an action for slander against either Skip Wright or Glenda Ward is barred, but for the relation back to filing. See OCGA § 9-11-15 (c); Hill v. Crabb, 166 Ga. App. 387, 388 (304 SE2d 510) (1983); Davis v. Hosp. Auth. of Fulton County, 154 Ga. App. 654, 656 (3) (269 SE2d 867) (1980). Such additional defendants’ rights to defend on the merits would be impaired for such claim relating back where they were not on actual notice of the pendency of such action prior to the running of the statute of limitation, and it has not been shown that they should have known, but for an error, that they would have been named as defendants. See Sargent v. Dept. of Human Resources, 202 Ga. App. 874-875 (415 SE2d 918) (1992). The evidence does not support the relation back after the statute has run, and the trial court did not err in dismissing the action for slander against them. OCGA § 9-11-15 (c); Robinson v. Piggly Wiggly of Calhoun, supra at 675; Trillium Nursing Home v. Thebaut, supra at 411; Rich’s, Inc. v. Snyder, supra at 889. Notice of the incident does not satisfy the requirement that there be notice of the suit prior to the running of the statute. Hall v. Hatcher Sales Co., 149 Ga. App. 133, 134 (1) (253 SE2d 812) (1979).

Decided June 23, 1999.

Melanie A. Brubaker, Joan R. Turbyfield, for appellant.

Alston & Bird, Judson Graves, for appellee.

However, any action against them for tortiously causing a loss of consortium was asserted by amendment within the four year period from the date that the action accrued on April 20, 1995, and was not barred. Their rights to defend on the merits were not prejudiced by their joinder. See Central of Ga. R. Co. v. Harbin, 132 Ga. App. 65-66 (207 SE2d 597) (1974); Humble Oil & Ref. Co. v. Fulcher, 128 Ga. App. 606, 609 (3) (197 SE2d 416) (1973). Therefore, the trial court committed plain error in dismissing the action against them for loss of consortium by denying the joinder. The order denying joinder as to Ward and Wright is hereby vacated as to the tortious interference with plaintiff’s right of consortium.

Judgment affirmed in part and reversed in part, and case remanded with directions.

Pope, P. J., concurs. Smith, J., concurs specially.

Smith, Judge,

concurring specially.

I concur in the result reached in each of the divisions of the majority opinion and in the judgment, but I do not agree with all that is said in Divisions 2 and 3. Because I believe that they contain much that is not necessary to the analysis, I cannot concur fully and must concur in the judgment only as to those divisions.


author: Smith, Judge. Eldridge, Judge,

text:
    A99A0512.
    CARTER v. THE STATE.
    (519 SE2d 717)
   Smith, Judge.

David Andrew Carter was convicted by a jury on one count of voluntary manslaughter, two counts of arson, one count of burglary, and one count of concealing the death of another. His motion for new trial was denied, and he appeals. We find no error, and we affirm.

Construed in support of the jury’s verdict, evidence was presented, through Carter’s own testimony, that he met the victim when making a delivery to the victim’s company. The two became friends, sometimes sharing lunch together. The victim eventually invited Carter to his home, where he and Carter drank cocktails. Carter testified that he became drunk, and then they watched a pornographic movie and had a “sexual encounter.” The next time Carter saw the victim, he told the victim he did not want to “do this again” but the victim threatened to drop Carter’s account with the victim’s company. According to Carter, he was “blackmailed” by the victim into a sexual relationship that continued over the next few years. He stated that the victim threatened him from “day one” of the relationship and that he feared the victim would reveal the relationship to Carter’s employer and to Carter’s wife. Carter testified that this relationship “was a small price to pay to keep my family.”

The victim began demanding that Carter come to his home frequently, which helped precipitate an argument between the two men on the last of Carter’s visits. Shortly after Carter arrived, he and the victim began fighting, and the victim fell, striking his head against the hearth in his living room. Carter testified that after the victim fell, Carter “jumped on him and held him down by his throat.” Although the victim stated to Carter that he was bleeding, Carter stated that “the last thing I wanted to do was let him get a second wind.” He also stated that he did not simply run away because the victim had told him there were guns in the house, and he was afraid of being shot. While Carter was holding the victim’s throat, the victim stopped moving, and Carter eventually realized that he was dead. Carter also acknowledged that it was possible he could have struck the victim in his throat.

Carter went home, but a few days later returned to the victim’s home, bringing matches and a plastic bottle containing gasoline. He testified that he walked through the unlocked front door, saw the victim still lying in the living room, poured gasoline onto a chair next to the victim, struck a match and threw it on the chair, and went home. He acknowledged that in setting the fire, he intended to “burn up [the victim] and any evidence” that he had been inside the house. The fire begun by Carter extensively damaged the entire house. Following the ensuing investigation of the fire and the victim’s death, the medical examiner determined that the victim’s cause of death was asphyxiation caused by strangulation or a blunt blow to the neck.

1. Carter argues that the evidence was insufficient to convict him of the crime of concealing the death of another.

Under OCGA § 16-10-31, “[a] person who, by concealing the death of any other person, hinders a discovery of whether or not such person was unlawfully killed is guilty of a felony.” Carter argues that although he “readily conceded that his intent in setting fire to [the victim’s] house was to hinder the discovery of whether or not such person was unlawfully killed,” a rational jury could not have inferred that he intended “to conceal the death of [the victim].” According to Carter, his action “in starting the fire brought discovery of the death of [the victim].” We find no merit in this contention, for Carter testified that he intended to burn up the victim’s body and other evidence linking him to the crime. The evidence authorized a rational trier of fact to convict him of hindering the discovery of whether the victim was unlawfully killed under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See generally Life v. State, 261 Ga. 709 (410 SE2d 421) (1991).

2. Carter argues that his convictions for burglary and arson should merge on the ground that “everything necessary to prove burglary was ‘used up’ in proving the arson.” We do not agree. The offense of burglary is completed when a person enters the dwelling of another, without authority, with the intent to commit a felony therein. OCGA § 16-7-1 (a); Childs v. State, 257 Ga. 243, 251-252 (12) (357 SE2d 48) (1987). The offense of burglary in this case was completed when Carter entered the victim’s home with the intent to commit arson. Carter then committed arson by pouring gasoline on a chair and setting it on fire. The offense of arson was not included in the offense of burglary “as a matter of fact or law.” Id. at 252. The same facts were not necessary to prove the commission of both offenses, and Carter was properly convicted and sentenced on each.

We note Carter’s reliance on Lockett v. State, 153 Ga. App. 569 (266 SE2d 236) (1980), to argue that his convictions for arson and burglary should have merged. Lockett expressly states that “[t]heft by taking is a lesser included offense to burglary. [Cit.]” Id. at 570. Carter argues that Lockett exemplifies a line of cases contrary to the holding in cases such as Childs, supra, because, according to Carter, the logic of these cases, “if sound, should apply as well to . . . theft cases.”

Lockett does not require reversal in this case. This court in Lockett relied upon Baker v. State, 127 Ga. App. 99 (192 SE2d 558) (1972). But in Baker, the defendant had a factual defense that raised the possibility of conviction on theft by taking as opposed to burglary, and that case does not imply that theft by taking is always a lesser included offense of burglary. Indeed, the cases show that depending upon their facts, theft by taking is not necessarily a lesser included offense of burglary. See generally Hopkins v. State, 227 Ga. App. 567-568 (1) (489 SE2d 368) (1997); Hambrick v. State, 174 Ga. App. 444, 447-448 (2) (330 SE2d 383) (1985); Carroll v. State, 142 Ga. App. 428, 430-431 (3) (236 SE2d 159) (1977). Accordingly, to the very limited extent that cases such as Lockett, supra, Darden v. State, 165 Ga. App. 739, 741 (3) (302 SE2d 425) (1983), and McClinic v. State, 172 Ga. App. 54 (321 SE2d 796) (1984) stand for the proposition that theft by taking is always a lesser included offense of burglary, they are disapproved.

It may certainly be true, as theorized by the special concurrence, that Lockett, Darden, and McClinic were decided on the basis of the facts of each individual case. But in each of those cases, a broad, general statement was made without limitation to the facts presented. Each case states unequivocally that “[t]heft by taking is a lesser included offense to burglary.” (Emphasis supplied.) Lockett, supra at 570 (1); Darden, supra at 741 (3); McClinic at 54 (1). Significantly, however, this statement is not a complete statement of the law. Theft by taking may be, but is not always, a lesser included offense of burglary. Our hope, in disapproving the very broad language in the limited circumstances when it is applied wrongly, is not to “gratuitously” disapprove legitimate precedent, but simply to clarify the law and avoid the danger that the language will be misread or misunderstood to imply that theft by taking is always a lesser included offense to burglary.

Such a misreading of the law is evident from Carter’s argument in this appeal. Without acknowledging that theft by taking is a lesser included offense of burglary based upon the facts of the case, Carter, in his brief, cites Lockett and asserts that Lockett holds that “Theft by Taking is a lesser included offense of Burglary with Intent to Commit a Theft.” He relies upon the broad statement in Lockett to question why this court, in his opinion, has reached inconsistent conclusions with regard to the merger of violent offenses and the merger of nonviolent offenses. The special concurrence therefore incorrectly states that the basis for disapproving Lockett, Darden, and McClinic “is not raised by Carter and does not affect Carter’s contentions — or his case — one iota.”

If one appellant, particularly one who has apparently not studied the greater body of law to determine the more correct language with respect to theft by taking as a lesser included offense, could rely upon the broad, general statement in Lockett, other appellants could do so as well. To avoid this result, it is this court’s duty to clarify this statement for the bench and bar and avoid the possibility of future confusion concerning this issue. In this opinion, we do not overrule Lockett, Darden, and McClinic in their entirety; we do not criticize the otherwise sound analysis in those cases. Instead, as discussed above, we disapprove only that language that might be misinterpreted — or even intentionally misused — to argue falsely that theft by taking is always a lesser included offense of burglary. If we failed to recognize this potential for confusion, illustrated by Carter’s arguments in this case, and failed to attempt to clarify our own inadvertently broad statements, we would be derelict in our duty. In the words of the special concurrence, we would “undermine . . . our legal system and the public’s confidence therein.”

3. Carter contends that the trial court erroneously refused to recharge the jury on justification. After the jury began deliberating, it sent the following note to the trial court, “ ‘We need a reading of the guidelines for the four choices on Count 1. Define, please, Number 1, murder; number 2, voluntary manslaughter; number 3, involuntary manslaughter; number 4, not guilty.’ ” When the trial court stated an intention to respond to the jury’s request by rereading the statutory definition of the three offenses mentioned, defense counsel requested that the trial court also “read the charge on justification since that applies to not guilty.” The trial court did not recharge on justification, however, finding that the jury specifically asked for definitions and that if the jury had “wanted to know about self-defense, they would have asked.” The court then read the statutory definitions of murder, voluntary manslaughter, and involuntary manslaughter and recited as follows with regard to the definition of “not guilty”: “ [I] f you do not believe that the defendant is guilty of these offenses or if you have any reasonable doubt as to the defendant’s guilt, then it would be your duty to acquit the defendant.” The trial court then asked whether these definitions answered the jury’s question and received an affirmative response.

Carter argues that omission of a recharge on justification emphasized “the possible guilty verdicts over the not guilty verdict even though the jury made it clear that it was considering all of these possible verdicts.” We find no error. A trial court must “recharge on any part of the charge when the jury so requests, but a trial court does not err by limiting a recharge to the specific points raised by the jury’s inquiry.” (Citation and footnote omitted.) Sinkfield v. State, 266 Ga. 726, 727 (3) (470 SE2d 649) (1996). The jury here did not request to be recharged on justification, and the trial court did not err in responding only to the jury’s specific inquiries.

Judgment affirmed.

Johnson, C. J, McMurray, P. J, Pope, P. J., Blackburn, P. J., Andrews, Ruffin, Barnes, JJ, and Senior Appellate Judge Harold R. Banke, concur. Eldridge, J., concurs specially.

Eldridge, Judge,

concurring specially.

I concur in judgment only. Carter’s convictions for both burglary and arson should be affirmed; they do not merge as a matter of fact or law. However, I disagree that this Court must “disapprove” our prior holdings in Lockett v. State, 153 Ga. App. 569 (266 SE2d 236) (1980), Darden v. State, 165 Ga. App. 739 (302 SE2d 425) (1983), and McClinic v. State, 172 Ga. App. 54 (321 SE2d 796) (1984), in order to reach this conclusion.

Lockett, Darden, and McClinic each decided the applicability of the otherwise correct statement of law “theft by taking is a lesser included offense of burglary” based upon the facts of their individual cases. Contrary to the majority’s assertions, these cases do not “imply” that theft by taking is ALWAYS a lesser included offense of burglary, regardless of the facts of the case. Indeed, the definition of a “lesser included offense” precludes a disregard of the facts of an individual case. OCGA § 16-1-6.

More importantly, appellant Carter does not even raise this issue. Carter’s allegation involves the merger of arson and burglary — not theft by taking and burglary. And Carter cites the theft by taking/burglary case of Lockett v. State, supra, only in illustration of his contention that, even when the facts do warrant the merger of an underlying felony offense into the offense of burglary, the appellate courts have taken a divergent approach toward the merger of violent underlying felony offenses, like rape or kidnapping (Palmer v. State, 174 Ga. App. 720 (331 SE2d 77) (1985); Childs v. State, 257 Ga. 243 (357 SE2d 42) (1987), and the merger of non-violent underlying offenses, like theft by taking (Lockett v. State). Thus, the majority’s basis for “disapproving” Lockett, Darden, and McClinic (i.e., as standing “for the proposition that theft by taking is always a lesser included offense of burglary”), is not raised by Carter and does not affect Carter’s contentions — or his case — one iota.

Decided June 23, 1999.

James E. Millsaps, for appellant.

Alan A. Cook, District Attorney, Jennifer E. Greene, Assistant District Attorney, for appellee.

Accordingly, neither by enumeration of error, argument, nor substantive merit is it necessary to do what the majority has done. It is unnecessary to the resolution of this case or for any other matter. In my view, gratuitously disapproving legitimate, precedential case law — even to a “very limited extent” — for no valid reason undermines our legal system and the public’s confidence therein.

       Here, however, unlike Baker, as discussed above, the facts showed the completion of both crimes.

       Both McClinic and Darden cite Lockett, supra, for the proposition that a lesser included offense of burglary is theft by taking. McClinic at 54 (1); Darden at 741 (3).

       He states the following in his appellate brief:
      Arson should also merge by logic and fairness with the offense of Burglary with Intent to Commit Arson as a matter of law. Appellant concedes there are contradictory lines of cases here. In cases such as Palmer v. State, 174 Ga. App. 720 [(331 SE2d 77)] (1985) and Childs v. State, 257 Ga. 243 [(357 SE2d 48)] (1987) we are told that Rape and Kidnapping do not merge with Burglary with intent to commit those offenses, because Burglary is complete when one unlawfully enters a building with intent to commit a felony, even though proof of the felony act itself is used to show the alleged intent.
      A contrary line of cases, exemplified by Lockett... hold that Theft by Taking is a lesser included offense of Burglary with Intent to Commit a Theft. These cases are contrary because the logic of Palmer and Childs, if sound, should apply as well to the theft cases. See also, Phillips v. State, 162 Ga. App. 199 [(290 SE2d 142)] (1982), where this court holds that a person may not be convicted of Entering an Automobile with Intent to Commit a Theft and the underlying theft.
      What possibly distinguishes these two lines of cases is a reluctance by the court to have the serious offenses of Rape and Kidnapping, which potentially carry life sentences, merge with burglary with has a maximum sentence of twenty years. (The maximum sentence for Theft by Taking is ten years.) That issue is not present with Arson, for which the maximum penalty is twenty years.

        Lockett at 570: “In this case there was evidence to support this theory of guilt [theft by taking]”; Darden at 741: “There was evidence to support this theory of guilt [theft by taking]”; and McClinic at 54: “In the instant case, the offense of theft by taking was included in the offense of burglary!.]”

       Carter opines that the approach of such cases as Palmer and Childs toward the merger of violent underlying felonies is based upon a reluctance to merge an offense that carries a life sentence into an offense which carries only a twenty year sentence, i.e., burglary. He concludes that such reluctance to merge must not be present with a less serious underlying offense, like theft by taking in the Lockett case, which carries a penalty of only ten years — and thus, presumably, with arson which carries only a twenty year sentence.


author: Johnson, Chief Judge.

text:
    A99A0597.
    JIMENEZ et al. v. MORGAN DRIVE AWAY, INC. et al.
    (519 SE2d 722)
   Johnson, Chief Judge.

This case arises out of an accident in which a tractor-trailer pulling an oversize load struck a disabled truck as it sat in the emergency lane of the highway. The injured driver of the disabled truck and his wife sued the tractor-trailer driver, his employer, and the employer’s insurance carrier. The jury returned a verdict in favor of the defendants. In this appeal, we decide whether the trial court erred in giving the defendants’ requested charges on the principles of assumption of risk, comparative and contributory negligence, and sudden emergency. Under the circumstances presented here, we find the assumption of risk charge should not have been given and reverse the judgment of the trial court. The other enumerated errors are without merit or were not preserved.

The transcript reveals that Leonardo Jimenez was driving a pickup truck eastbound on 1-285 when the clutch malfunctioned. The truck lost its power and Jimenez steered the disabled vehicle onto the paved emergency shoulder just before the Bouldercrest Road exit ramp. According to Jimenez, he parked the truck four to five feet to the right of the white fog line, well inside the emergency shoulder and off the roadway. The pickup truck was eight feet wide, and the emergency lane was eleven feet, three inches wide. Jimenez got out of the truck and knelt down in front of the truck to inspect it.

Steve O’Neal was part of a four-person team hauling mobile homes which were between 13V2 feet and 14 feet wide. The team was traveling on 1-675. O’Neal’s partner was in front, pulling one mobile home; he was followed by an escort, then O’Neal, then O’Neal’s escort. The vehicles were all at least 100 feet apart, and the escort vehicle traveling in front of O’Neal was “a good piece” in front of him.

O’Neal, following his partner and the partner’s escort, drove his tractor-trailer onto the 1-675 exit ramp to enter 1-285 eastbound. When O’Neal got to the bottom of the ramp, he began building his speed so as to merge with the traffic on 1-285. After he got off the ramp and into the travel lane, O’Neal’s partner informed him by radio that a truck was parked “close to the right (emergency) line.” The travel lanes were only IDA feet wide; thus, the mobile homes extended beyond the travel lanes, on one side or the other, and sometimes on both sides. O’Neal’s partner, the partner’s escort, and dozens of other cars and tractor-trailers successfully passed the truck. O’Neal radioed his own escort who was traveling behind him, warned him of the situation and advised him to change lanes. O’Neal attempted to change lanes but was unable to do so because a tractor-trailer was traveling in the lane next to him. In an effort to avoid hitting the disabled truck, O’Neal applied his brakes and moved his truck as far to the left of his lane as he could. O’Neal’s tractor made it past Jimenez’s truck, but the mobile home he was hauling struck the rear of the truck. Jimenez was knocked under his truck and severely injured. The collision occurred three to five minutes after Jimenez parked his truck on the emergency shoulder.

Jimenez and his wife, Debra Chambers, sued O’Neal, O’Neal’s employer, Morgan Drive Away, Inc., and Empire Fire and Marine Insurance (collectively “Morgan Drive Away”). Jimenez and Chambers appeal from the judgment entered on the jury’s verdict.

1. We agree with Jimenez and Chambers that the trial court erred in instructing the jury on assumption of risk.

Assumption of risk assumes that the actor, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.

(Citations and punctuation omitted.) Henderson v. Lowe’s Home Centers, 234 Ga. App. 573 (507 SE2d 159) (1998). “The knowledge requirement does not refer to a plaintiff’s comprehension of general, non-specific risks that might be associated with such conditions or activities.” (Citation and punctuation omitted.) Trustees of Trinity College v. Ferris, 228 Ga. App. 476, 479 (3) (491 SE2d 909) (1997).

In this case there was no evidence that Jimenez knowingly chose a dangerous course of conduct, fully appreciating the particular risk of harm associated with his conduct. Indeed, by steering his disabled truck out of the travel lanes and onto the paved emergency shoulder, the evidence shows he was attempting to prevent a collision. Since there was no evidence that Jimenez voluntarily exposed himself to the danger of being struck while on the emergency shoulder, he did not assume the risk of the injury incurred. See generally Sutton v. Sumner, 224 Ga. App. 857, 860 (482 SE2d 486) (1997); Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 824-825 (4) (409 SE2d 524) (1991); Meacham v. Barber, 183 Ga. App. 533, 537 (3) (359 SE2d 424) (1987).

Morgan Drive Away argues Jimenez assumed the risk of injury by not parking the truck fully inside the emergency lane and by driving the truck onto the highway when he knew the clutch was malfunctioning. We disagree.

First, even if the truck was not completely in the emergency lane, an assumption of risk charge was not justified. There was no evidence that Jimenez exercised free choice as to where he would park the truck. See generally Henderson, supra. Indeed, the evidence indicates that the truck Jimenez was driving lost all power and coasted to a stop.

Second, Jimenez’s decision to drive onto the highway and then park the truck off the roadway cannot be found to evince his consent that other drivers not use care to watch for and avoid hitting his truck. See Beringause, supra at 823 (4).

This is not the type of situation contemplated by the assumption of risk defense. Assumption of risk means that the plaintiff knows of the danger and intelligently acquiesces in it. Gaffron v. MARTA, 229 Ga. App. 426, 431 (2) (494 SE2d 54) (1997). Assumption of risk further

means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.

(Citation omitted.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996).

Jimenez’s knowledge of the dangers of driving a truck on the highway when the clutch is malfunctioning and parking a disabled truck in the emergency lane is not sufficient to establish knowledge that a vehicle would come into the emergency lane and strike the truck. A jury was not authorized to find from the evidence presented here that Jimenez assumed the risk that he would be injured under the circumstances he faced here. The trial court erred in giving the charge. Because we cannot say that the error was harmless, the judgment must be reversed. See Vaughn, supra; Gaffron, supra at 432 (2).

2. Because the issues of whether charges on sudden emergency and contributory and comparative negligence are authorized in this case are likely to recur on retrial, we will address those issues here.

(a) We do not agree with Jimenez and Chambers that the trial court erred in giving a charge on sudden emergency. The defense of emergency is available where the evidence shows that there has been a sudden peril caused by circumstances in which the defendant did not participate and which offered him a choice of conduct without time for thought; under such circumstances, negligence in his choice might be attributable not to lack of care but to lack of time to assess the situation. Thomas v. Stairs, 215 Ga. App. 288, 289 (1) (450 SE2d 326) (1994). Where there is any evidence, however slight, on an issue, it is not error to charge the law on that issue. Hicks v. Doe, 206 Ga. App. 596, 598 (426 SE2d 174) (1992). The record before us includes some evidence supporting a sudden emergency charge.

O’Neal testified that immediately after receiving the call from the tractor-trailer traveling ahead of him that a truck was parked near the white line marking the emergency lane, he radioed his escort and told him to try to change lanes. O’Neal testified that they were unable to do so because a tractor-trailer was in the adjacent lane. O’Neal further testified that he applied his brakes and moved over in his lane as far as possible to avoid hitting the truck, but was unable to pass the disabled truck without striking it. This testimony constitutes some evidence of an emergency.

Noticeably absent from the record is any evidence as to the distance traveled between the point at which O’Neal received the radio warning and the point at which the mobile home struck the disabled truck. Nor is there any evidence of how much time elapsed between the warning and the collision. Thus, it is not clear from the record what opportunity O’Neal had to assess the situation. Whether a sudden emergency existed could very well depend upon whether, for example, O’Neal had ten seconds versus forty-five seconds to assess the situation, and whether he had one hundred feet versus two-thirds of a mile in which to do so. Given the record before us, we cannot say that a charge on sudden emergency was not authorized by the evidence.

(b) Nor did the trial court err in charging the jury on comparative and contributory negligence.

O’Neal testified that one of the tires on Jimenez’s truck “was right there the [sic] by white line. That would put the body hanging over” into the travel lane. Although there was also direct testimony showing the disabled truck was completely within the emergency lane, there being some evidence that the truck was parked partially in the travel lane, the charge on contributory and comparative negligence was authorized. See generally Transouthern Freight Systems v. Astley, 201 Ga. App. 521, 522 (2) (411 SE2d 501) (1991).

Decided June 23, 1999.

Falanga & Chalker, Robert A. Falanga, David S. Bills, for appellants.

Dennis, Corry & Porter, Frederick D. Evans III, Albert M. Yates

III, Donahue, Hoey, Rawls, Skesvold & Richards, Craig R. White, for appellees.

3. Jimenez’s and Chambers’ contention that the trial court erred in giving a charge on avoidance was not preserved for review. See Orr v. CSX Transp., 233 Ga. App. 530, 531 (2) (a) (505 SE2d 45) (1998).

4. The trial court did not err in excluding expert testimony regarding a federal Department of Transportation regulation purportedly requiring drivers involved in collisions to immediately stop or return to the scene and render assistance to injured persons. The evidence shows that O’Neal stopped his tractor-trailer one-quarter of a mile from the accident site, waited at his truck and talked to investigators for several hours after the collision. The claim of Jimenez and Chambers that O’Neal was a “hit and run” driver is belied by the record. Whether evidence is admissible is a question for the trial court and, unless the trial court has abused its discretion, we will not interfere. Loper v. Drury, 211 Ga. App. 478, 479 (1) (440 SE2d 32) (1993) (physical precedent only). The trial court did not abuse its discretion in excluding the evidence.

Judgment reversed.

Andrews and Ruffin, JJ, concur.


author: Smith, Judge.

text:
    A99A0642.
    SAYED et al. v. AZIZULLAH.
    (519 SE2d 732)
   Smith, Judge.

During a family outing, 17-year-old Tariq Sayed drowned at a public park on Lake Lanier. Said and Latifa Sayed, Tariq’s parents, brought this action against their nephew, Haroon Azizullah, who was with his younger cousin Tariq in the water some time before he drowned. The trial court found that Tariq was “a healthy seventeen year old male of normal intelligence” and “understood and appreciated the dangers of swimming” and that “as a matter of law he assumed the risk of danger by voluntarily going swimming in a lake without using any flotation devices whatsoever.” The trial court also found that no implied contract existed between the two cousins “to provide a buddy system when they went swimming together” and granted Azizullah’s motion for summary judgment on both grounds. Because we agree with the trial court that Tariq voluntarily assumed the risk of swimming in the lake, we affirm on that basis and do not reach the issue of any duty owed to Tariq.

After Azizullah arrived at the family gathering, Tariq asked him to go swimming and he agreed. Azizullah asked Tariq if he could swim, and he replied that he could and had learned at his local community swimming pool. Tariq also asked and was given permission by his father to swim. But they did not swim at the designated swimming area or beach, which had been pointed out to Tariq earlier by his father; they entered the water from the shore below the picnic area, where a number of children were already in the water. Tariq did not use a life jacket or other flotation device.

According to Azizullah, the area was crowded and muddy, and he decided to swim out into cleaner water, but Tariq responded, “Well, I’m going to stay right here because it’s up to my waist, I don’t know how to swim that well and I don’t want to drown and I don’t want to get tired, so I’m going to stay right here.” Azizullah swam about 30 or 40 feet further out, and returned to shore in about 15 minutes. As he returned to shore, he was not looking for Tariq and did not see him. Later, as it began to grow dark, Tariq’s sisters asked where he was, and a search began. About two hours later, divers located Tariq’s body.

The Sayeds offered in evidence an accident investigation report completed by a park ranger and differing somewhat from Azizullah’s deposition testimony. The ranger testified by affidavit, and the narrative portion of the report indicates, that Azizullah and Tariq “began swimming away from the sandy beach out into the main part of the lake. The witness stated that the victim said he was too tired to swim out any farther and was going to head back to shore. The witness never looked back to verify that the victim made it back to shore.” Tariq’s body was recovered in 21 feet of water approximately 30 feet off shore.

While the Sayeds contend that the report suggests Tariq and Azizullah were in deeper water when their conversation took place, no evidence was presented that Tariq intended only to wade and not to swim. He was given permission to swim by his father and told Azizullah that he could swim and had learned at his community pool.

The Sayeds argue that Azizullah allowed Tariq to swim with him, knew Tariq was in a dangerous situation, and breached an obligation to care for Tariq. But according to Azizullah, Tariq never indicated by words or actions that he was in distress, in danger of drowning, needed assistance in returning to shore, or anything other than that he was simply “tired” and intended to return to shore. The Sayeds testified that they had no information contradicting this. The Sayeds also acknowledged below that no express agreement existed for Azizullah to care for or act as a lifeguard for Tariq. But on appeal they contend that by acceding to Tariq’s request to swim with him, Azizullah made an “implied” promise to look after him. We do not reach the issue of any duty owed to Tariq, however, because we agree with the trial court that Tariq appreciated the risks of swimming in the lake and voluntarily assumed them.

Assumption of the risk is a complete defense and arises when, even if defendant is negligent, plaintiff himself is negligent in such a way that his own negligence is the sole proximate cause. Although issues of negligence, lack of care in avoiding the negligence of others, lack of care for one’s own safety, and assumption of the risk are ordinarily not susceptible to summary adjudication, where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion the issue of assumption of risk may be determined on summary judgment.

(Citations and punctuation omitted.) Alexander v. Sportslife, 232 Ga. App. 538, 539 (2) (502 SE2d 280) (1998). The elements of a defense of assumption of the risk are: (1) the plaintiff had some actual knowledge of the danger; (2) he understood and appreciated the risks associated with the danger; and (3) he voluntarily exposed himself to the danger. Desai v. Silver Dollar City, 229 Ga. App. 160, 164-165 (3) (493 SE2d 540) (1997).

First, we note that this is not a case involving a child of tender years.

A young person of the age of this plaintiff is presumed to be capable of realizing danger and of exercising the necessary forethought and caution to avoid it, and is presumptively chargeable with diligence for his own safety, where the peril is palpable and manifest. A boy of fourteen years of age is presumptively chargeable with the same standard of diligence for his own safety as an adult.

Biggs v. Brannon Square Assoc., 174 Ga. App. 13, 17 (2) (329 SE2d 239) (1985). The Sayeds have presented no evidence to rebut this presumption. We also note that there are certain perils that are considered open and obvious as a matter of law. “The danger of drowning in water is a palpable and manifest peril, the knowledge of which is chargeable to the decedent in this case in the absence of a showing of want of ordinary capacity. [Cit.]” Bourn v. Herring, 225 Ga. 67, 69 (2) (166 SE2d 89) (1969). See also Laite v. Baxter, 126 Ga. App. 743, 748 (2) (191 SE2d 531) (1972).

Decided June 23, 1999 — Cert. applied for.

Maurice J. Bernard III, for appellants.

Gray, Hedrick & Edenfield, L. Bruce Hedrick, for appellee.

Assumption of the risk supported summary judgment despite the allegation of an “implied” duty to supervise in similar circumstances in Riley v. Brasunas, 210 Ga. App. 865, 868 (2) (438 SE2d 113) (1993). In Riley, a seven-year-old boy was injured while jumping from a trampoline to a chin-up bar while a social guest in another’s home. The plaintiffs alleged that an older boy in the household was “ ‘impliedly’ instructed by his mother that he was ‘in charge’ and was to ‘watch over’ the younger boys.” Id. This court held that the danger of falling, like those associated with fire and water, is normally understood even by young children, id. at 867 (1), and that the injured child was “deemed to have assumed the risk as a matter of law. [Cit.]” Id. at 868. We added that any alleged failure of the older child to “watch over” the boy could not be the proximate cause of his injuries, “for the latter’s knowing exposure of himself to danger is a bar to recovery. [Cits.]” Id. See also Barnes v. Fulton, 213 Ga. App. 806, 808 (446 SE2d 213) (1994).

Here, the undisputed evidence shows that Tariq knew and appreciated the risk of drowning in the lake. But, knowing the risk and the level of his own swimming ability, he chose to swim in an area other than the designated swimming beach without a flotation device. In so doing, he assumed the risk of drowning, and any alleged breach by Azizullah of a duty to supervise Tariq was not the proximate cause of his death.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

       The Sayeds have also brought a separate action against the U.S. Army Corps of Engineers, alleging that there was an undertow at the beach and the Corps failed to warn swimmers of its existence.


text:
    A99A1527.
    TUCKER v. THE STATE.
    (519 SE2d 745)
   Blackburn, Presiding Judge.

William Thomas Tucker appeals from his conviction of aggravated assault, following a jury trial. Tucker enumerates as error the trial court’s failure to charge the jury on reckless conduct and simple battery as lesser included offenses of aggravated assault. Tucker also contends the trial court erred by failing to give a charge on reckless conduct where the evidence supported giving such a charge. We affirm.

Decided June 23, 1999.

Jill L. Anderson, Mary Erickson, for appellant.

David McDade, District Attorney, Christy E. Draper, Assistant District Attorney, for appellee.

At trial, Tucker made no written request to charge on either reckless conduct or simple battery.

[A] written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense. . . . [However, t]he failure to instruct on a lesser included crime is not error, regardless of whether the evidence would have authorized or demanded such a charge, in the absence of a written request.

(Punctuation omitted.) Taylor v. State, 232 Ga. App. 825, 826 (4) (502 SE2d 540) (1998); Sparks v. State, 232 Ga. App. 179 (1) (501 SE2d 562) (1998). As there was no written request, the trial court did not err by failing to give a charge on the lesser included offense.

Judgment affirmed.

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


text:
    A99A0283.
    WATKINS & WATKINS, P. C. et al. v. WILLIAMS.
    (518 SE2d 704)
   Johnson, Chief Judge.

Rosa Belle Williams hired John D. Watkins and his law firm, Watkins & Watkins, P. C. (collectively “Watkins”) to handle a variety of legal matters from 1971 through 1997. On October 1, 1993, October 8, 1993, and December 1, 1993, Watkins asked Williams to loan him $30,000, most of which he said he needed in order to handle other clients’ cases. The loans were not committed to writing, although at trial Watkins admitted borrowing the money. Watkins told Williams he would repay her when the cases were settled and gave her shares of stock in the law firm as collateral. The loans were never repaid.

In 1995, Watkins told Williams she owed him $20,000 for his services. He explained that $12,500 of that amount was for drafting her husband’s will and for representing her in a minor car accident for which she was not cited or sued. Watkins told her that $7,500 was for taking her to the bank and to the nursing home to visit her husband. Williams, who was 74 years old and disabled, paid Watkins the requested fee.

On October 2, 1997, Williams sued Watkins, alleging he charged her excessive attorney fees, violated rules of professional conduct by soliciting loans from her and giving her an ownership interest in the firm, breached a fiduciary duty to her, committed fraud, failed to repay the money he borrowed from her, and kept money he should have forwarded to her. The jury returned a verdict in Williams’ favor, awarding her general damages, attorney fees, litigation expenses, and punitive damages. Watkins appeals from the judgment entered on the verdict.

1. The trial court did not err in denying Watkins’ motion for directed verdict. Watkins claims the statute of limitation expired on the tort claims and there was no evidence regarding the loans or excessive attorney fees. We disagree.

The only discussion we find in Watkins’ brief regarding the statute of limitation says the fraud and legal malpractice actions are barred by two-year statutes of limitation. In Georgia, legal malpractice is based upon the breach of a duty imposed by the attorney-client contract of employment and, therefore, the applicable statute of limitation is four years. Riddle v. Driebe, 153 Ga. App. 276, 279 (265 SE2d 92) (1980). Fraud claims are also subject to four-year statutes of limitation. See Washburn v. Sardi’s Restaurants, 191 Ga. App. 307, 311 (6) (381 SE2d 750) (1989). Watkins does not argue or show that the claims were more than four years old when the suits were filed. Thus, the evidence did not demand a verdict in his favor on that basis.

Similarly, his claim that there is no evidence regarding the loans or excessive fees is belied by the record. Williams testified as to the circumstances surrounding the loan agreements and the fees she paid for various services. Two attorneys testified that the fees were unreasonable in light of the services Watkins provided. Because the evidence did not demand a particular verdict, Watkins’ motion for directed verdict was properly denied. See Fowler v. Smith, 230 Ga. App. 817, 819 (1) (b) (498 SE2d 130) (1998).

2. Watkins complains the trial court erred in allowing an attorney to testify regarding the Code of Professional Responsibility when the Code does not establish civil liability or remedies and when there was no evidence of professional negligence. There was no error.

To be admissible, evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. OCGA § 24-2-1. Rules of the State Bar of Georgia, while not determinative of the standard of care applicable in a legal malpractice case, may be considered along with other facts and circumstances to determine whether an attorney treated his client with the requisite degree of skill and care. Allen v. Lefkoff, Duncan &c., P. C., 265 Ga. 374, 377 (2) (c) (453 SE2d 719) (1995). In her complaint, Williams alleged, among other things, that Watkins committed professional negligence, fraud and breach of fiduciary duty. In the context presented here, each of these claims is part of a legal malpractice claim. See McMann v. Mockler, 233 Ga. App. 279, 280 (1), 281-282 (3) (503 SE2d 894) (1998). And, contrary to Watkins’ contention, there was evidence of professional negligence. See, e.g., DR 2-106 (A) (lawyer shall not charge clearly excessive fee); DR 3-103 (lawyer shall not form law partnership with non-lawyer). The State Bar Rules were relevant. See generally Allen, supra.

3. Watkins complains that the trial court also erred in allowing an attorney to testify as an expert regarding attorney fees. He seems to argue that the attorney, Thomas Tucker, who had been practicing law for nearly 23 years and served on a bar grievance committee, was not an expert. However, the only objection Watkins made at trial regarding Tucker’s testimony was that the State Bar Rules were irrelevant; as discussed above, the Bar Rules were relevant. We will not consider on appeal grounds not presented to the trial court. Ga. Farm Bureau &c. Co. v. Blackburn, 223 Ga. App. 423, 424 (480 SE2d 848) (1996).

Watkins’ separate but similar enumeration claiming the trial court erred in allowing Tucker to testify as to whether attorney fees and litigation expenses were reasonable was not preserved since Watkins did not object at trial to the testimony. See generally Joiner v. Lane, 235 Ga. App. 121, 125 (3) (b) (508 SE2d 203) (1998).

4. In several enumerations, Watkins argues the trial court should not have charged the jury on fraud, punitive damages, conversion, and the Code of Professional Responsibility. However, after charging the jury, the trial court asked Watkins if he had any exceptions to the charge. Watkins replied “[o]nly the exceptions that iterated [sic] at the beginning, Your Honor, when we were going over them.” A review of the charge conference transcript, however, shows that Watkins made no exceptions to any of these charges, even though the trial court expressly gave him an opportunity to review and object to Williams’ requests. Although Watkins claims he was prevented from objecting, the record shows otherwise. When the trial judge instructed Watkins to sit down, it was in response to Watkins’ complaints about not having a copy of Williams’ revised requests to charge. The trial judge immediately thereafter secured for Watkins a revised copy and told him to review it and inform the court when he was ready to continue. The trial court then asked Watkins if he had any comments on the requests, to which he responded “[n]o, sir.” The trial court continued to entertain both parties’ comments as to the remaining charges.

In a civil case, a party may not complain of the giving of a jury instruction unless he objects to it before the jury returns its verdict and distinctly states an objection and the grounds for it. The failure to except before verdict generally is a waiver absent a substantial error blatantly apparent and prejudicial, resulting in a gross miscarriage of justice. Moody v. Dykes, 269 Ga. 217, 219 (3) (496 SE2d 907) (1998). There being no such result here, the arguments regarding these charges were waived.

5. Contrary to Watkins’ contention, the trial court did not err in failing to strike all portions of Williams’ pleadings pertaining to tort claims, punitive damages, attorney fees and the Code of Professional Responsibility. Although in his brief Watkins cites OCGA § 9-11-12 (g), he presumably means OCGA § 9-11-12 (f), which provides that the trial court may order stricken from any pleading redundant, immaterial, impertinent or scandalous matter. A motion to strike an allegation in a complaint is not to be granted unless, construing the pleadings in a light most favorable to the plaintiff, the plaintiff can establish no set of facts that would entitle her to relief against the defendant. News-Press Publishing Co. v. Kalle, 173 Ga. App. 411, 412 (2) (326 SE2d 582) (1985). Construing the pleadings in such a light, Williams did show she was entitled to relief against Watkins. Therefore, Watkins was not entitled to have Williams’ pleadings stricken.

6. Watkins contends the trial court erred in submitting the issue of punitive damages to the jury and in approving the verdict as to punitive damages. He argues that punitive damages are not allowed in contract cases and the tort actions were barred by the statute of limitation. As discussed in Division 1, he has not shown that the tort claims were barred by the applicable four-year statute of limitation. Punitive damages are allowed in legal malpractice, breach of fiduciary duty and fraud cases. See Home Ins. Co. v. Wynn, 229 Ga. App. 220, 225 (10) (493 SE2d 622) (1997). The trial court did not err in approving the verdict.

7. Watkins claims the trial court erred in approving the jury’s verdict as to his counterclaim. In support of this enumeration, he states only that he was denied a fair trial on the counterclaim “due to the Enumeration of Error as listed above.” Watkins lists 11 errors before this one. Thus, it is not clear to which alleged error he refers. Watkins’ failure to offer any meaningful argument or citation to authority in support of his claim amounts to an abandonment of the enumeration. See City of College Park v. Sheraton Savannah Corp., 235 Ga. App. 561, 564 (6) (509 SE2d 371) (1998).

8. Watkins claims the verdict as to actual damages is not supported by the evidence. The jury awarded Williams $56,272 in general damages. The evidence at trial showed Watkins owed Williams $30,000 plus interest for the loan. Watkins admitted at trial that he agreed to pay interest at the rate of 10%, or “something to that effect.” The jury was authorized to add interest from the date of the alleged breach.

Decided May 26, 1999

Reconsideration denied June 24, 1999.

Catherine V. Ryan, for appellants.

Watkins & Watkins, John D. Watkins, pro se.

Duffy, Feemster & Lewis, George L. Lewis, for appellee.

There was also evidence that Watkins charged Williams $20,000 in fees. One attorney testified that the legal services Watkins performed for Williams were worth no more than $2,500, “[a]nd that would be generous.” Watkins also failed to pay Williams $104 he received on her behalf in a garnishment proceeding. An appellate court should not interfere with a jury’s damage award unless the award is so small or so excessive as to justify the inference of gross mistake or undue bias. Grange Mut. Cas. Co. v. Law, 223 Ga. App. 748, 750 (1) (479 SE2d 357) (1996). The jury’s award was within the range of damages established by the evidence and will not be disturbed. See id.; see generally Jim Ellis Atlanta v. McAlister, 198 Ga. App. 94, 97 (2) (400 SE2d 389) (1990).

9. Watkins contends the trial court erred in not entering a pretrial order simplifying, clarifying and limiting the issues presented by the parties. Watkins did not request a pre-trial order. Assuming that even in the absence of a request, the trial court’s failure to enter a pre-trial order constituted error, the question is whether the error was harmful. Smith v. Davis, 121 Ga. App. 704, 705-706 (2) (175 SE2d 28) (1970) (physical precedent only); see Sheet Metal Workers &c. v. Carter, 144 Ga. App. 48, 51 (5) (240 SE2d 569) (1977), rev’d on other grounds, 241 Ga. 220 (244 SE2d 860) (1978); OCGA § 9-11-16 (b). Upon a review of the record, we find no harmful error requiring reversal. See generally State Hwy. Dept. v. Peters, 121 Ga. App. 167, 171 (5) (173 SE2d 253) (1970).

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.