author: Carley, Chief Judge. McMurray, Presiding Judge,

text:
    A90A0109.
    BRANCH v. CARR.
    (396 SE2d 276)
   Carley, Chief Judge.

Appellant-plaintiff sued defendant and others seeking damages pursuant to 42 USC § 1983 based upon her allegations that defendant assaulted her on January 4, 1985, at the time of her admission to a hospital. Suit was filed on May 22, 1987, and defendant-appellee affirmatively asserted that the cause of action was barred by the statute of limitations. In her complaint, appellant alleged that since the date of the incident complained of, she has been “incompetent to manage her affairs.” In opposition to appellee’s motion for summary judgment, appellant contended that the period of limitations was tolled because of this alleged incapacity. See OCGA §§ 9-3-90; 9-3-91. However, in her deposition, appellant testified that she was “mentally competent to handle [her] affairs and to bring this lawsuit” and that “since January of 1985,” she has been able “to handle [her] personal and legal affairs.” Other than the averments of her complaint, appellant has produced no evidence of incapacity which would constitute a tolling of the statute of limitations. The trial court, finding that appellant’s “own testimony indicates that she was competent to manage her affairs,” granted summary judgment in favor of appellee on the basis that appellant’s action was barred by the statute of limitations.

“The test is one of capacity — whether the individual, being of unsound mind, could not manage the ordinary affairs of [her] life. [Cit.]” (Emphasis in original.) Tri-Cities Hosp. Auth. v. Sheats, 156 Ga. App. 28, 30 (273 SE2d 903) (1980), aff’d 247 Ga. 713 (279 SE2d 210) (1981). In Sheats, as in this case, the plaintiff asserted that the statute of limitations was tolled based upon the allegations in the complaint that she was mentally incapacitated. Thus, this Court “conclude[d] that the allegations of Sheats’ mental incapacity were pierced by his own deposition [cit.], and that the burden then shifted báck to Sheats to come forward with evidence demonstrating that an issue of fact remained. [Cit.]” Tri-Cities Hosp. Auth. v. Sheats, supra, 31. In Sheats, this Court affirmed the denial of the defendant’s motion for summary judgment because the record showed that the plaintiff did come forward with evidence “demonstrating that an issue of fact remained.” Unlike the situation in Sheats, however, appellant has not “come forward” with any evidence contradicting her deposition testimony that, at all relevant times, she has been capable of managing her own affairs.

“Sanity or insanity is a proper subject for opinion evidence, and where the question under examination . . . shall be one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor. [Cits.]” (Emphasis supplied.) Jarrard v. State, 206 Ga. 112 (3) (55 SE2d 706) (1949). In addressing the issue of whether the statute of limitations has been tolled, the courts of this State have consistently relied upon the testimony that was given by a plaintiff as to his or her own mental soundness or unsoundness. See Chapman v. Burks, 183 Ga. App. 103 (357 SE2d 832) (1987); Whisnant v. Coots, 176 Ga. App. 724 (337 SE2d 766) (1985); Curlee v. Mock Enterprises, 173 Ga. App. 594, 596 (2) (327 SE2d 736) (1985); Tri-Cities Hosp. Auth. v. Sheats, supra. Accordingly, on the basis of the record before the trial court, no genuine issue of material fact remained, and the trial court correctly granted summary judgment based upon appellee’s statute of limitations defense.

Judgment affirmed.

Deen, P. J., Banke, P. J., Birdsong, Sognier, Pope, Beasley and Cooper, JJ, concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

The question presented for decision in this case is whether the two-year statute of limitation was tolled on account of plaintiff’s alleged mental illness. See OCGA §§ 9-3-90; 9-3-91. The answer to this question, the majority concludes, lies in plaintiff’s own deposition testimony. This testimony is found in a deposition taken by the defendants, two of which are not named appellees in the case sub judice.

Plaintiff deposed that, at the time of the incident in question, she was in a mental hospital; that, following the incident, she was involuntarily placed in a mental hospital 12 times and voluntarily placed herself in a mental hospital one more time because she was hearing voices; and that she received and continues to receive disability benefits from the Social Security Administration because she “get upset, screaming and hollering.” Plaintiff also deposed that at some point in her adult life, her mother was appointed as her guardian. Asked, however, upon cross-examination by the defendant, if she was mentally competent and able to manage her affairs following the incident in question, plaintiff responded affirmatively.

Decided July 6, 1990

Rehearing denied July 26, 1990.

E. Ronald Garnett, for appellant.

Richard R. Mehrhof, Jr., Paul H. Dunbar III, Michael J. Bowers, Attorney General, Jennifer L. Hackemeyer, Assistant Attorney Gen eral, for appellee.

Although plaintiff’s testimony fails to demonstrate the length of time during which she was mentally incapacitated, I am of the opinion that the trial court erred in granting defendant’s motion for summary judgment. Why? Because defendant failed to present any evidence piercing plaintiff’s allegation of incapacity.

In my view, plaintiff’s admission on deposition that she was competent and capable of managing her affairs is of no import because “[a] witness cannot be permitted to testify to his [or her] own mental soundness or unsoundness.” 32 CJS, Evidence, § 546 (28). Various evidentiary reasons have been given for a rule such as this. See, e.g., Frisone v. United States, 270 F2d 401, 403 (9th Cir. 1959); O’Connell v. Beecher, 47 NYS 334, 335 (1897). Such a rule is inherently logical and necessary, where, as here, a party seeks the tolling of a statute of limitation on the ground that he or she was incapacitated as a result of mental illness.

I recognize that this Court has previously considered the testimony of a party about his or her own incapacity in order to assess whether a statute of limitation should have been tolled. See, e.g., Chapman v. Burks, 183 Ga. App. 103 (357 SE2d 832); Whisnant v. Coots, 176 Ga. App. 724 (337 SE2d 766). In those cases, however, the parties’ incapacity was alleged to have stemmed from physical injury. The case sub judice is different. Plaintiff’s incapacity is alleged to have resulted from long-standing mental illness. In a case such as this, a witness should be prohibited from testifying as to his or her own mental soundness or unsoundness.

Application of a rule prohibiting a witness, the plaintiff in the case sub judice, from testifying to her own mental capacity would leave defendant without any evidence to support his motion for summary judgment. It would follow that the trial court erred in granting defendant’s motion. Accordingly, I respectfully dissent.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A90A0195.
    MUSCOGEE COUNTY BOARD OF EDUCATION et al. v. BOISVERT et al.
    (396 SE2d 303)
   Pope, Judge.

Plaintiffs, two groups of teachers, filed separate complaints against defendants, the Muscogee County Board of Education, members of the Muscogee County Board of Education, the Muscogee County School District and Dr. Braxton Nail, Superintendent of the Muscogee County School District, contending that defendants breached plaintiffs’ employment contracts. Specifically, plaintiffs contended defendants, in determining plaintiffs’ salaries under the contracts, failed to credit plaintiffs with the proper number of years experience as provided by Note A to the 1981 and subsequent Department of Education Georgia Teacher Annual/Monthly Salary Schedule and the 1981 General Appropriations Act, Ga. L. 1981, pp. 1036, 1225, § 49. Defendants filed an answer and “Action for Declaratory Judgment ... in the Nature of a Counterclaim” wherein they denied their liability to plaintiffs on the grounds that plaintiffs had been paid in accordance with the terms of their respective employment contracts and that for each year in question plaintiffs’ salaries exceeded what they would have been paid under the state minimum salary schedule. Defendants also contended that Note A was a misinterpretation of the language contained in the Appropriations Act and that all or part of plaintiffs’ claims were barred by the applicable statute of limitation.

Subsequently, and pursuant to the consent of the parties, the trial court entered an order consolidating plaintiffs’ claims against defendants and bifurcating the question of liability and damages. Upon motions of the parties, the trial court entered an order granting summary judgment to all plaintiffs on the question of liability, except as to those claims barred by the six-year statute of limitation contained in OCGA § 9-3-24, and denied defendants’ motion for summary judgment. We affirm.

1. The record shows that since 1981 the State Department of Education has appended to the state minimum salary schedule for teachers language identical to or substantially the same as the following: “After successful completion of one year of experience and the CRT exam and assessment, the teacher will move to the third year of experience on the salary schedule. If the beginning teacher does not complete the assessment during the first year but completes the assessment at the beginning of the second year of teaching, then the teacher will move to the third year of experience on the schedule the month following completion of permanent (PBT) certification. After permanent certification and one year of experience the teacher will resume annual increments.” As stated supra, plaintiffs contend that defendants failed to credit them with the proper number of years experience based on the language contained in Note A above. Defendants concede that plaintiffs’ salaries for the years in question (defendants first began paying plaintiffs in accordance with Note A in 1985-86, failed to pay them in accordance with Note A in 1986-87, and resumed paying in accordance with Note A in 1987-88) were based on actual number of years experience, not the “credited” or additional number of years experience to which plaintiffs contend they were entitled pursuant to Note A. However, relying on certain provisions of the Adequate Program for Education in Georgia Act (“APEG”) (Ga. L. 1975, pp. 539, 561, § 56) (Ga. Code Ann. § 32-656 a) as supplanted by the Quality Basic Education Act (Ga. L. 1985, pp. 1657, 1712, § 1) (OCGA § 20-2-212) defendants contend they were not obligated to pay plaintiffs in accordance with the state minimum salary schedule, including the provisions of Note A, so long as the salary established by defendants equaled or exceeded the minimum salary provided in the state schedule.

OCGA § 20-2-212 provides in relevant part that “[t]he State Board of Education shall establish a schedule of minimum salaries for services rendered. . . . The minimum salary schedule shall provide a minimum salary base for each classification of professional personnel required to be certified; shall provide for increment increases above the minimum salary base of each classification based upon individual experience and length of satisfactory service; and shall include such other uniformly applicable factors as the state board may find relevant to the establishment of such a schedule. ... A local unit of administration shall not pay to any full-time certificated professional employee a salary less than that prescribed by the schedule of minimum salaries. . . . Local units of administration may, however, supplement the salaries of such personnel. . . .” (Emphasis supplied.) It is undisputed that plaintiffs in this case were paid more than they would have received under the minimum salary schedule, by virtue of the fact that a local supplement was added to the salary of each teacher. We do not agree with defendants, however, that the fact that the total salary paid to each plaintiff was more than the minimum salary they would have received under the State schedule, exclusive of local supplement, is dispositive of the issue in this case. The question remains whether defendants were required to pay those teachers holding the appropriate certification as provided in Note A, or whether it was permissible to pay those teachers based solely on actual experience.

The record shows the Muscogee County salary schedule was based on the “State Salary Schedule plus existing local supplement.” Thus, the essence of defendants’ argument is that although they adopted the state minimum in setting their salary schedule, they were free to disregard Note A in determining the number of years experience to credit to the plaintiffs because they also chose to pay their teachers a local supplement, which resulted in a total salary to the teachers in excess of the minimum prescribed by the State. However, according to both the state schedule and defendants’ local schedule, a necessary step in determining the appropriate salary for teachers is that the number of years experience of the teacher first be ascertained. Note A simply provides, as established by the State Board of Education, pursuant to an act of the legislature, the means for making this determination for beginning teachers who have received the appropriate certification. That defendants were aware of this practice of crediting teachers with experience is evidenced by the fact that they followed this procedure when requesting reimbursement monies from the State. We hold, therefore, that the defendants could not obviate this requirement in contracting with their teachers simply by paying their teachers a local supplement which resulted in their salary being more than the minimum prescribed by the State Department of Education. Consequently, defendants’ first enumeration of error provides no basis for reversal.

2. Defendants also contend the trial court should have applied the two-year statute of limitation contained in OCGA § 9-3-22 in determining whether plaintiffs’ claims are barred, not the six-year statute of limitation set forth in OCGA § 9-3-24.

OCGA § 9-3-22 provides: “All actions for the enforcement of rights accruing to individuals under statutes or acts of incorporation or by operation of law shall be brought within 20 years after the right of action has accrued; provided, however, that all actions for recovery of wages, overtime, or damages and penalties accruing under laws respecting the payment of wages and overtime shall be brought within two years after the right of action has accrued.” Defendants argue that although plaintiffs sued for breach of contract, the only basis of recovery was the 1981 Appropriations Act containing the language subsequently appended as Note A, and thus OCGA § 9-3-22, not OCGA § 9-3-24 applies. We disagree. In the case at bar, plaintiffs’ contracts were made “in consideration of and in agreement with the laws of Georgia. . . .” The contracts further provided “[i]f the valid Georgia Teacher’s certificate of the correct years of experience were not shown herein at the time of the execution of the contract, the contract will be adjusted accordingly for the entire contract period.” “Therefore, the claim in the case at bar is based upon an enforceable simple written contract. The statute of limitations on all simple contracts in writing is six years; and this is true whether the promise sued on is expressed in the writing or implied and written into it by the law. This rule is in accord with the decisions of the Supreme Court in numerous cases where it has been expressly recognized that, where the contract forming the basis of the action is in writing, the provisions of OCGA § 9-3-24 are applicable. (Emphasis supplied.) [Cits.]” (Punctuation omitted.) Nelson v. Nelson, 176 Ga. App. 107, 108 (335 SE2d 411) (1985). Cf. City of Atlanta v. Adams, 256 Ga. 620 (351 SE2d 444) (1987), relied on by defendants, in which “[t]he basis of the recovery [was] the ordinance itself.” We find no merit to defendants’ contention that the State Board of Education misinterpreted the language of the Appropriations Act, Ga. L. 1981, p. 1036, § 49, in drafting Note A. Although the wording of the two is not identical, our review of both Note A and the Act, as well as relevant portions of the record, convinces us this difference is without effect.

Decided July 13, 1990

Rehearing denied July 26, .1990 — Cert, applied for.

Harben & Hartley, Phillip L. Hartley, James E. Humes II, Hatcher, Stubbs, Land & Hollis, Robert C. Martin, Jr., for appellants.

Grogan, Jones, Rumer & Gunby, Milton B. Jones, Michael E. Kramer, John R. Myer, for appellees.

3. Likewise we find no merit to defendants’ final enumeration. The contracts at issue in this case contain references to both the Muscogee County School District and the Muscogee County Board of Education as the contracting party. Thus we reject defendants’ contention that it has been conclusively established on the record before us that the only proper party to this litigation is the Muscogee County School District.

Judgment affirmed.

Been, P. J., concurs. Beasley, J., concurs in judgment only.


author: Cooper, Judge.

text:
    A90A0598.
    TRAMMELL v. THE STATE.
    (396 SE2d 286)
   Cooper, Judge.

Appellant was convicted by a jury of driving under the influence of alcohol and sentenced to twelve months to serve. Appellant filed several post-conviction motions which were all denied by the trial court.

Construing the evidence to support the jury’s verdict, the record reveals that a truck driven by appellant ran off a state highway at approximately 12:30 a.m. The state trooper who arrived at the scene shortly after the accident testified that appellant’s speech was slurred; his eyes were bloodshot; he had a strong odor of alcoholic beverage on his breath and was in a very unsteady condition. The trooper also stated that, based on his experience, appellant was under the influence and was less safe to operate a motor vehicle. A woman who arrived at the accident scene prior to the trooper testified that she tried to assist appellant, who was bleeding from a cut on his forehead, and observed that appellant’s eyes were glassy, his speech was slurred, he “was like wild, smelled like beer and in her opinion, he was drunk. Appellant, who admitted having two and a half beers at approximately 11:30 p.m. that evening, stated that the accident occurred after he swerved to avoid a deer that entered the roadway. A breath test administered to appellant at approximately 2:15 a.m. showed a blood-alcohol content of .08 grams. The investigating officer testified that, based on his training and knowledge of alcohol metabolization by the human body, the breathalyzer reading of .08 grams was higher than he would expect to find in someone who had consumed two and a half beers almost three hours before the test. The record does not reflect that appellant was given any field or roadside sobriety tests.

1. Appellant’s first enumeration of error is that the evidence was insufficient to support his conviction for DUI. Appellant denied that he was unsteady on his feet, and maintained that his eyes were bloodshot from working long hours. He also cites the fact that no field sobriety tests were given to him as evidence of his innocence. “Judging the credibility of witnesses and weighing the evidence are functions within the province of the jury.” Lucas v. State, 192 Ga. App. 231, 232 (1) (384 SE2d 438) (1989). Reviewing the transcript in a light most favorable to the verdict reveals ample evidence from which a rational trier of fact could find beyond a reasonable doubt that appellant was guilty of driving under the influence of alcohol. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant next contends that the trial court erred in denying his motion to quash Count I of the accusation as it failed to charge a DUI offense under OCGA § 40-6-391 (a) (1). Count I charged appellant with “driving under the influence of alcohol,” and the accusation further charged that appellant “did drive and operate a certain . . . vehicle . . . when [appellant] was then and there under the influence of alcohol, contrary to the laws of said State, the good order, peace and dignity thereof.” The accusation was entered in November 1987, prior to the 1988 amendments to OCGA § 40-6-391, consequently the statute then proscribed driving or being in actual physical control of a vehicle “while under the influence of alcohol.” At that time, per a judicially imported standard, conviction of the crime required proof that the driver was under the influence of alcohol to a degree which rendered him less safe or incapable of safely driving. Groom v. State, 187 Ga. App. 398, 400 (370 SE2d 643) (1988). Appellant argues that since the accusation did not specifically charge that he was “less safe to drive,” then Count I is fatally defective because it does not make out a DUI offense under the statute. Appellant further argues that pursuant to the test for the sufficiency of an indictment set forth in State v. Eubanks, 239 Ga. 483, 485 (238 SE2d 38) (1977), appellant can admit the charge as made and still be innocent. We disagree.

“The legal sufficiency of the accusation or indictment depends upon the accusation as a whole. ‘An indictment is sufficiently technical and correct if it states the offense in the terms and language of the statute or so plainly that the jury may easily understand the nature of the offense charged. (OCGA § 17-7-54).’ [Cit.] ‘(A) defendant who was not at all misled to his prejudice by any imperfection in the indictment cannot obtain reversal of his conviction on this ground.’ [Cit.] The designation of the offense should be construed together with the descriptive averments contained in the accusation or indictment to determine whether it adequately charges the offense. [Cit.] An accusation or indictment is legally sufficient so long as it contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet. [Cit.]” Manley v. State, 187 Ga. App. 773, 775-776 (2) (371 SE2d 438) (1988). The accusation charges according to the statute and the descriptive averments charge that appellant was under the influence of alcohol, contrary to the laws of the state. Clearly, appellant could not have admitted the offense and still be innocent. See Watson v. State, 190 Ga. App. 671 (3) (379 SE2d 811) (1989). Further, it has been held that the phrase “driving under the influence of alcohol” is “universally recognized and understood, and it is not deficient because indefinite or unintelligible.” Cargile v. State, 244 Ga. 871, 873 (1) (262 SE2d 87) (1979). The language of the accusation adequately apprised appellant of the charges against him and did not mislead him to his prejudice. In fact, appellant does not even assert such a claim. We find that the accusation was not fatally defective and appellant’s second enumeration is meritless.

3. Thirdly, appellant contends that the twelve month prison sentence imposed for appellant’s first conviction constituted cruel and unusual punishment. This sentence was within the statutory limit. “ ‘ “A sentence is not unconstitutionally cruel and unusual if it is within the statutory limit. (Cit.) This court is without authority to review sentences within the statutory range.” [Cit.]’” Sherrell v. State, 170 Ga. App. 798 (1) (318 SE2d 221) (1984).

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.

Decided July 10, 1990

Rehearing denied July 26, 1990 — Cert, applied for.

Steven H. Sadow, for appellant.

W. Fletcher Sams, District Attorney, J. David Fowler, Assistant District Attorney, for appellee.


text:
    A90A0636.
    LAWYERS TITLE INSURANCE CORPORATION v. NASH.
    (396 SE2d 284)
   Cooper, Judge.

Appellant appeals the order of the trial court granting appellee’s motion for summary judgment and denying appellant’s summary judgment motion in this case involving the breach of warranty of title to property.

Appellant issued a title insurance policy to Corner Cupboard Craft Shops, Inc. (“Craft Shops”) insuring the property in question. Craft Shops had acquired the property from James F. Smith and Shirley M. Smith (“Smiths”) who had acquired the property from appellee. Appellant argues that appellee conveyed more property than he in fact held title to in his deed to Smith and Smith in turn conveyed this additional property to Craft Shops. Craft Shops ultimately forfeited this additional property to another party, and appellant paid the resulting claim to Craft Shops. Appellant, as subrogee of the rights of Craft Shops under the policy, seeks to recover the value of this forfeited property from appellee, alleging a breach of warranty of title to Craft Shops, a successor in title to appellee.. Specifically, appellant argues that the legal description of the property in the deed to appellee describes the southern boundary of the property as fronting 50 feet along an alley, whereas the deeds to Smith and Craft Shops describe the same southern boundary as fronting 100 feet along the alley. Appellant includes in the record numerous surveys, copies of the deeds and an affidavit of a title examiner to support its contention that the disputed property to which appellee did not have title was included within the description of the property that appellee conveyed and warranted in his deed to Smith and in the deed from Smith to Craft Shops. Appellee presented his own affidavit in support of his position that none of the land in the disputed area was included in the deed from appellee to Smith.

1. Although the trial court gave no explanation for its decision, it appears that one question to be determined is the sufficiency of the legal description in the deed from appellee to Smith. The sufficiency of a property description is a question of law for the court; the identity of the property is a question of fact. McCann v. Miller, 177 Ga. App. 53, 54 (2) (338 SE2d 509) (1985). We cannot say that the legal description at issue was insufficient as a matter of law. “ ‘Perfection in legal descriptions of tracts of land is not required. “If the premises are so referred to as to indicate . . . [the grantor’s] intention to convey a particular tract of land, extrinsic evidence is admissible to show the precise location and boundaries of such tract. The test as to the sufficiency of the description of property contained in a deed is whether or not it discloses with sufficient certainty what the intention of the grantor was with respect to the quantity and location of land therein referred to, so that its identification is practicable.” [Cits.]’ ” Id. at 54. Further, it must be determined if the deed contains sufficient “keys” to clarify any indefiniteness in the description. Wisener v. Gulledge, 251 Ga. 419, 421 (306 SE2d 642) (1983). The legal description of the property contains several distance calls which are rendered indefinite by the phrase “more or less” and by running to undefined points; further, the general directional calls, such as “northwesterly” and “southeasterly,” are unspecific. However, the description references a plat which contains two keys to clarify the intention of the grantor. A scale of 1 inch to 200 feet and a designation for north appear on the plat. Applying these two keys to the configurations on the plat, the exact distances and directions, as well as the property conveyed, can be identified. See Grant v. Fourth Nat. Bank of Columbus, 229 Ga. 855 (2) (194 SE2d 913) (1972).

2. Appellee apparently bases his motion for summary judgment on the argument that no genuine issue of material fact exists because the documents disclose that the disputed property was not included in his deed to Smith. Appellee supported his motion with a copy of the deed and his own affidavit which contains no explanation but simply restates his contention. Appellant submitted copies of all relevant documents and plats as well as an affidavit of an expert title examiner who analyzed in detail the legal descriptions to support the assertion that the disputed property was in fact conveyed by appellee. After a review of the record, we conclude that appellee did not pierce the appellant’s pleadings and did not carry his burden to show that there exists no genuine issue of material fact. Waits v. Makowski, 191 Ga. App. 794 (1) (383 SE2d 175) (1989). Accordingly, we reverse the grant of appellee’s motion for summary judgment and affirm the denial of appellant’s motion for summary judgment.

Judgment affirmed in part and reversed in part.

Banke, P. J., and Birdsong, J., concur.

Decided July 9, 1990

Rehearing denied July 26, 1990 — Cert, applied for.

Dana G. Diment, Smith, Gambrell & Russell, Robert W. Beynart, Pamela R. Masters, Cullen C. Wilkerson, for appellant.

Pruitt & Britt, Walter M. Britt, for appellee.


author: Carley, Chief Judge.

text:
    A90A0696.
    MAXWELL v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (396 SE2d 291)
   Carley, Chief Judge.

Seeking to recover for injuries that she sustained when her automobile was struck from behind, appellant-plaintiff Mrs. Wendelin Maxwell filed suit against two named defendants and John Doe. The two named defendants answered, asserting that the collision had been caused by John Doe’s negligent operation of his automobile. In its capacity as appellant’s uninsured motorist carrier, appellee-defendant State Farm Mutual Automobile Insurance Company was served with a copy of the complaint. Appellee filed a timely answer. Although appellee’s answer was denominated as being only that of John Doe and defenses to tort liability were raised therein, the actual body of the answer makes specific reference to appellee as the “putative uninsured motorist carrier” and defenses to contractual liability were also raised therein. Thereafter, appellee filed a motion for summary judgment. Although appellee’s motion was denominated as being that of John Doe, it was not predicated upon John Doe’s defenses to tort liability, but upon appellee’s defenses to contractual liability. The trial court granted this motion for summary judgment and it is from that order that appellant brings this appeal.

1. Unless appellee somehow became a named party defendant to this action, it had no right to seek ah adjudication of the viability of its defenses to contractual liability. Moss v. Cincinnati Ins. Co., 154 Ga. App. 165 (268 SE2d 676) (1980). “When the [uninsured motorist carrier] files pleadings in the name of the tortfeasor, only tort liability is at issue; when it files pleadings in its own name, the questions of tort liability as well as coverage are in issue. [Cits.]” Smith v. Phillips, 172 Ga. App. 459, 464 (2) (323 SE2d 669) (1984).

As noted above, appellee filed an answer which was denominated as being only that of John Doe. However, as is likewise noted above, the actual body of the answer identifies appellee as the “putative uninsured motorist carrier” and the answer not only raises John Doe’s defenses to tort liability, but also raises appellee’s defenses to contractual liability. Thus, regardless of the name in which appellee elected to file its answer, it is clear that that answer does evidence appellee’s election to interject “the potentially prejudicial [issue] into the case of the presence of insurance coverage.” Moss v. Cincinnati Ins. Co., supra at 170.

Accordingly, to hold that appellee did not become a named party defendant to this case and had no right to seek an adjudication of the viability of its defenses to contractual liability would be to elevate form over substance. “[T]he substance, rather than the nomenclature, of legal pleadings determines their nature. [Cits.]” Cotton v. Fed. Land Bank of Columbia, 246 Ga. 188, 191 (269 SE2d 422) (1980). Therefore, we hold that appellee did become a named party defendant to this action, notwithstanding the denomination of its answer and its motion for summary judgment as being only that of John Doe. “With that status comes the right to contest the liability of the alleged tortfeasor and any resulting liability under the policy. ... Of course, with the right to defend there must come the attendant risk of defeat, which would result in a judgment against the insurance carrier in favor of the insured for the amount the insured would be legally entitled to recover from the tortfeasor.” (Emphasis supplied.) Moss v. Cincinnati Ins. Co., supra at 170. Because appellee did become a named party defendant in the instant action, we need not address the issue of the precedential value of Hoffman v. Doe, 191 Ga. App. 319 (381 SE2d 546) (1989) as authority for an uninsured motorist carrier to seek an adjudication of its contractual defenses without ever becoming a named party defendant in the underlying action.

2. Turning to the merits of appellee’s motion for summary judgment, there was no physical contact between John Doe’s vehicle and any vehicle involved in the collision in the instant case. Moreover, appellant never actually saw John Doe’s vehicle and her allegation that John Doe’s operation of his vehicle was a causal factor in the collision is, therefore, not based upon her personal knowledge. Appellee urges that, under these circumstances, Hoffman v. Doe, supra, is controlling as to the substantive merits of its contractual defense in the instant action.

Hoffman v. Doe, supra, however, dealt with the general issue of the statutory construction of OCGA § 33-7-11 (b) (2). It is appellant’s contention that, under the specific terms of the policy issued to her by appellee, she is afforded more liberal uninsured motorist coverage than would be mandated by OCGA § 33-7-11 (b) (2) as that statutory provision was construed in Hoffman v. Doe, supra. “Under basic principles of contract law it is axiomatic that, as long as the provisions of a given contract are in compliance with the requirements of governing statutes, the parties to the contract may include provisions different from, or more liberal than, those prescribed in the statute or statutes.” Jones v. Barnes, 170 Ga. App. 762, 765 (318 SE2d 164) (1984). Thus, appellant urges that, “[w]hereas under OCGA § 33-7-11 [(b) (2) as construed in Hoffman,] the contract between [herself] and [appellee] could have been written so as to exclude [her] from coverage . . ., the plain language of the contractual provisions ... of the policy [that appellee issued] brings [her] within the document’s coverage.” (Emphasis supplied.) Jones v. Barnes, supra at 765.

The relevant language of the policy that appellee issued to appellant does not track that of OCGA § 33-7-11 (b) (2). OCGA § 33-7-11 (b) (2) provides that “physical contact shall not be required if the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.” The instant policy, on the other hand, dispenses with the requirement for physical contact if “the facts of the accident can be corroborated by an eyewitness to the occurrence other than [the claimant.]” (Emphasis supplied in part and omitted in part.) That appellee “ ‘employed different and less explicit language in the instant policy is evidence that it meant to convey a different meaning. . . .’ [Cit.]” United Services Auto. Assoc. v. Lail, 192 Ga. App. 487, 489 (1) (385 SE2d 424) (1989). Thus, under the policy as drafted by appellee, coverage in the event of non-physical contact would not be dependent upon an independent corroboration of a “description by the claimant of how the occurrence occurred,” but merely upon an independent corroboration of “the facts of the accident. . . .”

Unlike the statutory phrase that was construed in Hoffman v. Doe, supra, “the facts of the accident” are not necessarily dependent upon the personal observations of the claimant. “The facts of the accident” either exist or they do not regardless of what the claimant himself may or may not have personally seen. Accordingly, unlike the claimant in Hoffman v. Doe, supra, appellant would not be required to provide a corroborated firsthand account of the insured event to state a claim for coverage. Appellant can state a claim for coverage under the terms of her policy by merely asserting the existence of facts which are not necessarily within her personal knowledge and she would be entitled to benefits if those asserted facts can be corroborated by someone who was an eyewitness to their occurrence. Although Hoffman v. Doe, supra, may hold that the statute authorizes a limitation of coverage to those instances wherein the claimant is himself a corroborated eyewitness to the asserted fact of John Doe’s involvement, the policy that was issued to appellant by appellee extends coverage to those instances wherein an eyewitness can corroborate John Doe’s involvement as an asserted fact by the claimant. Because the policy that was issued by appellee does extend broader coverage than would be required under OCGA § 33-7-11 (b) (2) as construed in Hoffman v. Doe, supra, we need not address the issue of the continued viability of the narrow construction that was given to the statutory language in that case.

Decided July 12, 1990

Rehearing denied July 26, 1990 — Cert, applied for.

Redfern, Green & Hoffman, Brady D. Green, for appellant.

Swift, Currie, McGhee & Hiers, Joseph A. Munger, Irwin, Bladen, Baker & Russell, Jennie E. Rogers, Nanne A. Van’t Reit, for appellee.

3. As alleged in her complaint, “the facts of the accident” are such that, if corroborated by an eyewitness to their occurrence, she would be afforded coverage. Under the terms of the policy issued by appellee, it is immaterial that appellant has no personal knowledge of each of those alleged facts and cannot, therefore, provide her own firsthand “description ... of how the occurrence occurred. . . .” Under the terms of the policy, it is sufficient that an eyewitness other than appellant can corroborate that “the facts of the accident” occurred as alleged by appellant. The record contains the testimony of an eyewitness who corroborates appellant’s allegation that “the facts of the accident” are such that she would be afforded coverage. It follows that the trial court erred in granting appellee’s motion for summary judgment. Accordingly, the trial court’s order is reversed with direction that the order be recast as the denial of appellee’s, rather than John Doe’s, motion for summary judgment. Genuine issues of material fact remain as to John Doe’s tort liability to appellant and, because it elected to become a named party defendant in the instant case, as to appellee’s contractual liability to appellant.

Judgment reversed with direction.

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


author: Sognier, Judge.

text:
    A90A0123.
    NORFLEET v. THE STATE.
    (396 SE2d 237)
   Sognier, Judge.

Arthur Norfleet was found guilty of DUI by a jury, and the trial court entered judgment upon the conviction. Norfleet appeals.

1. Appellant first contends the trial court should have granted his motion to suppress the results of a blood test administered by the State because appellant was not informed of his right to obtain an independent chemical test, and his request for a second test was refused.

At the motion hearing, the arresting officer, P. J. Reagan, testified that on the night of November 18, 1988, he observed appellant back down the wrong side of the road and then stop. When Reagan approached appellant and asked for his license, he smelled alcohol on appellant’s breath. Reagan stated that after appellant failed to perform certain field sobriety tests adequately, he was arrested for DUI. Reagan testified that he read appellant his “Miranda rights and his implied consent warning,” but with regard to the implied consent rights Reagan could recall only that he told appellant, the State had the right to conduct certain tests, and that if appellant refused his license would be suspended.

Appellant testified that at the time of his arrest Reagan did not inform him that he had the right to an independent chemical test performed by a person of his own choosing. Appellant stated that approximately thirty minutes after he was arrested, another officer arrived, placed appellant in a paddy wagon, and drove away from the scene. Appellant inquired where they were going, and upon being informed he was being taken to Grady Hospital for a blood test, appellant asked whether he could have a separate blood test taken by his own physician. He testified that in response the officer told him “you should have had that conversation with the [arresting] officer.” It is undisputed that a second blood test was not performed.

When a chemical test is used in a civil or criminal proceeding arising from a charged violation of OCGA § 40-6-391, the “person tested may have a [qualified person] of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer,” OCGA § 40-6-392 (a) (3), and “[t]he arresting officer at the time of arrest shall advise the person arrested of his rights to [this] chemical test or tests.” Id. at (a) (4). This statute “requires that the officer inform [the accused] at the time of arrest of his right to an independent chemical analysis to determine the amount of alcohol or drugs present in his blood. Under ordinary circumstances, where this advice is not given at the time of arrest, . . . the results of the state-administered test will not be admissible at trial to show that the accused was driving under the influence of alcohol or drugs.” Perano v. State, 250 Ga. 704, 708 (300 SE2d 668) (1983). “[W]hen the State seeks to prove the violation [of OCCA § 40-6-391] by evidence of a chemical test, the State has the burden of demonstrating compliance with the statutory requirements” of OCGA § 40-6-392 (a) (3), (4). Munda v. State, 172 Ga. App. 857, 858 (324 SE2d 799) (1984).

In the case at bar, appellant testified that he did not receive notice of his right to an independent test as required by OCGA § 40-6-392 (a) (4), and the State did not present evidence at the motion hearing affirmatively rebutting his recollection of the events surrounding his arrest. However, the State argues that because Officer Reagan did subsequently testify at trial that the card from which he read appellant the implied consent warning included a statement regarding the right to an independent test, the trial court’s ruling should be affirmed. While we may consider that trial testimony as supplementing the hearing transcript, Sanders v. State, 235 Ga. 425, 431-432 (219 SE2d 768) (1975), the record also establishes that appellant’s request for an independent test was refused. The record, including the trial transcript, is devoid of evidence that he was offered an opportunity to schedule a second test, and thus there is no evidence that the officers complied with their mandatory statutory duty to allow appellant to exercise his right to an independent test. State v. White, 188 Ga. App. 658, 659 (373 SE2d 840) (1988); see State v. Hughes, 181 Ga. App. 464 (352 SE2d 643) (1987). The State’s argument that appellant failed to arrange for an independent test is wholly without merit given that the evidence does not show that the officers made any effort to “act reasonably” once appellant expressed a desire to have a test performed, White, supra at 659, or that he was afforded any opportunity to make the necessary arrangements. See id.; see also Hughes, supra at 466-467, in which we rejected a similar argument even though a second test ultimately was performed.

Decided April 3, 1990

Rehearing denied July 27, 1990 — Cert, applied for.

Herbert Shafer, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, David Wright, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

Under these circumstances, given our mandate of strict protection of an accused’s rights under OCGA § 40-6-392 (a), see Munda, supra at 858, we find admission of the test results was harmful error, Carswell v. State, 171 Ga. App. 455, 457-458 (1) (a) (320 SE2d 249) (1984), and accordingly reverse the denial of appellant’s motion to suppress. See id. at 458.

2. Our decision in Division 1 renders moot appellant’s remaining enumerations of error.

Judgment reversed.

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

On Motion for Rehearing.

The State’s contention that appellant’s request for an independent test was premature is controlled adversely to the State by State v. White, 188 Ga. App. 658-659 (373 SE2d 840) (1988), where we held that an accused’s right to have an independent test performed does not attach until the State performs its test, but found that the right to request an independent test may be exercised when the accused is read his informed consent rights.

Therefore, the motion for rehearing is denied.


text:
    A90A0113.
    WISENBAKER v. WARREN et al.
    (396 SE2d 528)
   Cooper, Judge.

In an effort to resolve a boundary dispute, appellees, who are adjacent landowners, filed suit against appellant, also an adjacent landowner, after appellant erected a fence which allegedly encroached on appellees’ property. The case was tried before a jury which found in favor of each of the appellees awarding general damages, attorney fees and litigation costs. The court ordered further that appellant remove the fence and be restrained from further trespass and adjudged that the boundary lines would be as shown on the survey prepared by Folsom as contended by appellees. Appellant appeals the denial of his motion for new trial. Appellees request that upon affirmance, the case be remanded for a determination of additional attorney fees incurred in defending this appeal pursuant to the verdict.

A review of the record indicates that the Folsom survey was one of several surveys performed on the property. In 1969, when appellees’ predecessor in title, Ronald Wisenbaker (“Ronald”), purchased a 14.18 tract which included the property in dispute, a survey was conducted by Branch. Three years later when Ronald subdivided his property, Ganas was retained to do a subdivision plat. Appellees Warren and Ellis purchased their lots in 1979 and 1980 respectively, although it appears Warren had occupied his property since 1972. In 1983, Fitzsimmons surveyed the lot purchased by appellees Billy and Beatrice Latham (“Lathams”). Appellant hired Kendall in 1983 and Connell in 1984 to survey the northern boundary of his property. Then in 1987, appellant petitioned the probate court for a processioning of the boundary lines between his property and that property belonging to appellees. The county processioners retained Connell to prepare a plat reflecting their survey. Finally, pursuant to a prayer in appellees’ complaint, the Folsom survey was performed in September of 1987 at the trial court’s direction.

Appellant’s property was situated south of Warren and Ellis and east of the Lathams and Ellis. The fence was erected along the lines established by the processioners which appellees alleged encroached on their property by approximately 25 feet at the southern boundary of Warren and Ellis and sixteen hundredths of a foot at the northeast corner of the Lathams increasing to 2.73 feet at the southeast corner of Ellis along eastern boundary as demonstrated by the Folsom survey. Folsom testified that he referred to the Branch, Ganas and Fitzsimmons surveys in preparing his own survey. While the surveys did differ, Kendall testified that the variations were not considerable. In addition, both Branch and Connell testified that they agreed with the Folsom survey.

Appellant contends the Folsom survey is flawed because it relies on the wrong landmark in establishing the corners and lines of appellees’ property. Specifically, appellant contends that the marker in the northeast corner should have been placed in a creek, whereas Folsom testified that this location was unreliable in that the flow of creek had changed. Folsom’s testimony demonstrated the process he used in determining the boundaries and corners. He indicated that his results complied with those of previous surveys. Additionally, in the disputed area, Folsom observed use by Warren and Ellis consistent with ownership.

1. Appellant contends the court erred in overruling his motion for new trial on general grounds. “The general rule is that a jury verdict, after approval by the trial court, will not be disturbed on appeal if it is supported by any evidence. [Cits.]” Smith v. Clifford H. Pryor & Assoc., 193 Ga. App. 523, 524 (388 SE2d 383) (1989). Here, there was ample evidence to authorize the jury to find the boundary lines were those demonstrated by the Folsom survey; therefore, the trial court did not err in overruling appellant’s motion for new trial. See also Mullis v. Baker, 112 Ga. App. 879 (146 SE2d 788) (1966).

2. Appellant also contends there was insufficient evidence to support the jury verdict for damages and litigation costs. Appellant argues that he was entitled to rely on the property line established by the processioners inasmuch as appellees failed to protest the processioners’ return. OCGA § 44-4-9 provides that “[a]ny owner of adjoining lands, who is dissatisfied with the lines run and marked by the processioners and the surveyor may file his protest to their-findings with the judge of the probate court within 30 days after the processioners have filed their returns. . . .” (Emphasis supplied.) The language is not mandatory and no protest having been filed, the processioning acquired no res judicata effect. Holmes v. Blount, 245 Ga. 757, 758 (267 SE2d 228) (1980). Furthermore, “ ‘[w]here processioners have duly made out and certified a plat as required by law, and no protest is filed to the same, such plat and the lines marked thereon are only prima facie correct.’ [Cits.]” Huff v. Holley, 101 Ga. App. 292 (3) (113 SE2d 493) (1960).- Accordingly, reliance on the processioners’ lines does not shield appellant from liability for trespass.

OCGA § 13-6-11 authorizes the jury to award expenses of litigation “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” Appellees’ complaint was for “trespass, an intentional tort, which tort will support a claim for expenses under the theory that the intention evokes that ‘bad faith’ necessary for recovery under OCGA § 13-6-11. [Cit.] There was evidence of the intentional building of a fence by [appellant] on [appellees’] land. This was sufficient for the jury to consider the issue. The fact that there was a dispute as to the location of the land line did not justify the building of the fence.” Tanner v. Gilleland, 186 Ga. App. 377 (3) (367 SE2d 257) (1988). Additionally, an award of such expenses “should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense. [Cit.]” Ken-Mar Constr. Co. v. Bowen, 245 Ga. 676, 677 (266 SE2d 796) (1980). The evidence demonstrated that appellant persisted in attempting to impose on the parties property lines which were contrary to six surveys. He witnessed without objection appellees’ use of the disputed area, by mowing its grass, digging a well on it, and placing a dog house there. Appellant also testified that he had seen markers along the timber line. For the reasons stated above, appellant’s defense was not reasonable, the trial court did not err in allowing the jury to consider the matter and the evidence supported the verdict of the jury.

3. Appellant enumerates as error the trial court’s denial of his motion for directed verdict on the issue of adverse possession by appellees under color of title for seven years. OCGA § 44-5-164 provides that possession of real property under evidence of title for seven years shall confer good title by prescription where that possession is public, continuous, exclusive, uninterrupted, peaceable, and accompanied by a claim of right. Appellant argues that appellees were not in possession of their tracts for seven years and that appellees could not tack the earlier possession of Ronald because he did not possess under a claim of right. The record reveals that Warren and Ellis acquired title in 1979 and 1980 respectively and therefore, had possession for seven years by 1987. “Possession under a duly recorded deed will be construed to extend to all the contiguous property embraced in the deed.” OCGA § 44-5-167. The Lathams acquired title in 1983 from Ronald, whose title goes back to 1969. “An inchoate prescriptive title may be transferred by the possessor to a successor, so that the successive possessions may be tacked to make out the prescription. [OCGA § 44-5-172] . . . [T]he burden is upon [appellees] to show by a preponderance of the evidence that this prior possession was of such character as to be the foundation of prescription, and be adverse. The foundation must meet all the requirements of [OCGA § 44-5-164], and among these requirements, the possession must be accompanied by a claim of right. ‘While this does not mean that the possession must be accompanied by a claim of title out of some predecessor, it does mean that there must be some claim of title in the sense that the possessor claims the property as his own.’ [Cit.]” Olsen v. Noble, 209 Ga. 899, 904 (76 SE2d 775) (1953). Appellant contends Ronald could not have had possession under a claim of right and in good faith because he purportedly knew the “true” property lines and destroyed them. The evidence showed that Ronald’s use of the property for nearly twenty years as of 1987 was consistent with the survey performed at the time of his purchase. “A presumption of good faith arises from adverse possession. [Cits.] Tf a person buys land in good faith, believing he is obtaining a good title, and enters into possession thereof, and remains there ... for seven years, that possession ripens into a good title. . . .’ [Cit.]” Fraser v. Dolvin, 199 Ga. 638, 640 (34 SE2d 875) (1945). Accordingly, the trial court did not err in denying the motion for directed verdict.

4. Appellant contends the trial court erred in allowing Ronald to testify as to where he understood the lines to be at the time of purchase and as to the contents of an unrecorded sales contract. We disagree. “We find no error in admitting the testimony which was offered to show the witness’ general knowledge of the area, and to lay a proper foundation for the witness’ subsequent testimony setting the boundary line in dispute based on [his] general understanding. . . .” Sackett v. L. L. Minor Co., 244 Ga. 375 (3) (260 SE2d 37) (1979). In addition, “[t]he decision to allow the witness to testify rested within the sound discretion of the trial judge. [Cit.]” Id. at 376.

The 1972 sales contract between Warren and Ronald was not admitted because it had not been produced in response to interrogatories, nor was it listed in the pre-trial order, however, on cross-examination of Ronald, the court did permit questions concerning the contract. The court found the testimony relevant evidence of how and when title was obtained relative to adverse possession. “Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court, and if an item of evidence has a tendency to help establish a fact in issue, that is sufficient to make it relevant and admissible.” (Punctuation omitted.) Kittles v. Kittles, 187 Ga. App. 537 (1) (370 SE2d 803) (1988). Appellant contends the trial court erred in allowing testimony concerning the contract after refusing to admit it. We find that the trial court did not abuse its discretion in allowing the relevant testimony.

5. Appellant enumerates as error the charge to the jury as to the validity of the processioning and punitive damages. Appellant first contends that the trial court erred in allowing the jury to consider the validity of the processioning proceeding. As explained above in Division 2, appellees are not precluded from protesting the return of the processioners because of their failure to protest to the probate court. While the processioners’ return is prima facie correct, “[I]f protestante contention is supported by some competent evidence, the court must submit the issue to the jury. [Cit.]” Overstreet v. Dixon, 107 Ga. App. 835 (3) (131 SE2d 580) (1963). A review of the record reveals such competent evidence; therefore the trial court did not err in allowing the jury to pass on the validity of the proceedings.

The charge in substance provided for an award of punitive damages if the jury found the processioning was a sham or commenced in bad faith, or in an effort to be stubbornly litigious or to cause the appellees unnecessary trouble and expense. Appellant contends that there was no evidence of sham, fraud, or bad faith and that the use of the word “sham” denied due process. The grounds stated in the charge, if found, would support a claim for expenses of litigation under OCGA § 13-6-11 but not punitive damages. “To authorize the imposition of punitive or exemplary damages there must be evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. [Cit.]” (Punctuation omitted.) Jones v. Padgett, 186 Ga. App. 362 (5) (367 SE2d 88) (1988). At the conclusion of the charge appellant objected generally to all charges which he contended converted the case into an appeal from probate court. This “objection was not sufficiently specific to meet the requirements of OCGA § 5-5-24 (a), in that it did not direct the court’s attention to the particular request to charge at issue, . . . so as to enable the court to rule intelligently on that specific point.” Hamrick v. Wood, 175 Ga. App. 67 (1) (332 SE2d 367) (1985). However, we will consider and review the charge pursuant to OCGA § 5-5-24 (c) to determine if the giving of the charge was harmful as a matter of law so as to require a reversal. “To constitute harmful error within the meaning of this subsection, an erroneous charge or failure to charge must result in a gross injustice, such as to raise a question as to whether the appellant has been deprived of a fair trial.” Hamrick, supra. Viewing the charge to the jury in its entirety and not as single instructions in isolation, the giving of the erroneous charge was not harmful as a matter of law because later in the charge the court gave the correct charges for punitive damages and litigation costs. Henderson v. Glen Oak, Inc., 179 Ga. App. 380 (4) (346 SE2d 842) (1986). The jury awarded general damages of $600 to Warren, $150 to Ellis and $150 to the Lathams. None of the appellees was awarded punitive damages, however they were all awarded litigation costs in an amount determined by the court as stipulated by the parties. This verdict is consistent with the evidence adduced at trial. “Though the true measure of damages may not have been given in charge, no new trial is required if the verdict does not exceed the amount of damages which should have been found had the charge been correct. [Cits.]” (Punctuation omitted.) Southern Concrete Prods. Co. v. Martin, 126 Ga. App. 534 (2) (191 SE2d 314) (1972). In addition, the use of the word “sham,” while incorrect, was not blatantly prejudicial resulting in gross injustice. See generally Hamrick, supra.

6. With respect to enumerations of error 5, 6, 7 and 8, appellant has not seen fit to support his contentions with specific citation of authority or argument. He requests that we allow him to adopt argument contained in his amended motion for new trial, however, that pleading contains no argument on these enumerations. Accordingly, they are deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2). Segrest v. Intown True Value Hardware, 190 Ga. App. 588 (3) (379 SE2d 615) (1989).

Decided July 12, 1990

Rehearing denied July 30, 1990 — Cert, applied for.

Cork & Cork, Robert L. Cork, Patrick C. Cork, Griner & Aider-man, Galen P. Alderman, for appellant.

William P. Langdale, Jr., James E. Jarvis, Jr., for appellees.

7. The case shall be remanded pursuant to OCGA § 5-6-8 so that the trial court can consider the costs appellees have incurred in defending this appeal in accordance with OCGA § 13-6-11, the jury’s verdict and the parties’ stipulation.

Judgment affirmed and case remanded with direction.

Banke, P. J., and Birdsong, J., concur.


author: Beasley, Judge. Deen, Presiding Judge,

text:
    A90A0336.
    FULTON-DeKALB HOSPITAL AUTHORITY v. FANNING.
    (396 SE2d 534)
   Beasley, Judge.

Fanning, as administratrix of her father’s estate, sued the hospital authority (“Grady”) for allegedly negligent medical care and treatment of the decedent. Grady moved for summary judgment, supported by the affidavit of a physician attesting to the level of care and treatment provided. In a supplemental motion Grady advanced the charitable immunity defense (initially asserted in its answer) as a basis for summary judgment. The trial court denied summary judgment, and this court denied an interlocutory appeal.

In a bifurcated proceeding as to decedent’s status as a charity patient vel non, the jury, after being instructed that Grady had the burden of proving the decendent’s charitable status, found that Grady had not met this burden. The trial court reiterated its previous denial of summary judgment. Grady again sought interlocutory appeal. It was granted to examine the issues of the decedent’s status in the light of recent decisions and to determine whether the burden of proof was properly allocated.

1. As a charitable institution Grady is generally entitled to the defense of charitable immunity. Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833, 834 (353 SE2d 515) (1987); Morton v. Savannah Hosp., 148 Ga. 438 (96 SE 887) (1918). “There is an exception to this general rule[, however]: a charitable hospital maybe liable for negligence to a paying patient. . . .” (Emphasis supplied.) Ponder, supra at 834, citing Morton; accord Fulton-DeKalb Hosp. Auth. v. Alexander, 193 Ga. App. 505 (388 SE2d 372) (1989); Patterson v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 167 (384 SE2d 205) (1989).

The services rendered decedent were worth some $5,600, including current charges of $52.45 and about $5,500 for emergency psychiatric services rendered some months previously. Grady never requires payment for emergency psychiatric treatment regardless of the patient’s financial status, so only the $52.45 figures here. None of these charges was paid, either by decedent’s administratrix, by insurance, or otherwise.

As to decedent’s financial capacity to pay the bills, the Director of Patient Investigations (the unit responsible for determining financial eligibility for free or low-cost treatment) testified that the “X” rating assigned decedent on his first admission indicated one of two statuses: (1) ineligibility for a discount or (2) inability to verify income at time of admission. She further testified that the “40” on his admission record indicated he had stated that he had insurance. Grady billed the insurer named by decedent for $52.45, but payment was declined for reasons not stated in the record. Grady never billed the estate. The line on decedent’s admission record captioned “Insurance verified” bears the handwritten notation, “No Ins.” The same notation appears in the upper left-hand corner of two of the three otherwise identical copies of the filled-in form contained in the record. A computer-generated statement dated July 26, 1985, and marked “Transfer to Attorney,” shows itemized charges for June 2, 1985, of $15 for electrocardiology and $37.45 for laboratory work, a total of $52.45.

The witness further testified that, unlike most other hospitals, Grady does not require “up front” payment at the time of admission and that, consequently, all rankings on the financial eligibility scale at admission are necessarily tentative until the Patient Investigations staff can verify the data provided. She also stated that, according to Grady’s records, decedent had no savings account and his checking account contained less than $100.

Grady produced evidence that at the time of decedent’s psychiatric admission he had stated that he earned $200 — $400 per week but had recently earned less than that. Grady, also produced evidence that, although decedent owned a house and an automobile, IRS income tax information showed that he filed no return for 1981 through 1983 and that 1984’s return indicated gross income of $4,545, with one dependent.

Grady contends in its fourth enumeration of error that the jury’s verdict should be set aside and the denial of summary judgment reversed because the trial court improperly assigned to Grady the burden of proving that decedent was not a “paying patient” but a “charity patient.” Under OCGA § 24-4-1, “[t]he burden of proof generally lies upon the party who is asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential.” Where the defendant asserts an affirmative defense (here, that decedent did not come within the “paying patient” exception to the charitable immunity rule but was a charity patient instead), the burden of establishing such a defense is on the party asserting it. Pembrook Mgmt. v. Cossaboon, 157 Ga. App. 675 (278 SE2d 100) (1981); Parsons v. Harrison, 133 Ga. App. 280 (211 SE2d 128) (1974).

However, where the opposing party has access to and control over most or all of the evidence necessary to prove or disprove an issue raised as an affirmative defense, the burden may be allocated to that party rather than to the party who raised the defense. The trial judge has discretion to reassign the burden of going forward, once a certain quantum of evidence has been adduced by the party who technically had the burden.

Many cases since Morton refer to it in considering whether a particular plaintiff is a charity patient or not. Morton does not define what is a charity patient, a patient whose care is paid for by the public because he or she is indigent and for this reason unable to pay. Morton is a case in which the Supreme Court simply answered six questions certified to it by the Court of Appeals.

One of the questions set up a hypothetical case and asked in effect whether the hospital would be immune from suit by such a patient (with one exception not at issue here). The facts posited were that the person received as a patient was able to pay and did pay for board, medical attention, and other services and suffered injuries due to the carelessness, negligence, or incompetence of a nurse or servant of the hospital. The Court answered that question, saying that the hospital was not immune from suit by “such non-charitable pay patients,” limited to certain funds. Id. at 441.

It did not define the other side of the coin, charity patients, nor designate factors which would identify one as a charity patient for non-liability purposes. It did not describe the category “charity patients” nor even fully describe the universe of non-charity patients. A patient who is able to pay but simply refuses to do so is not a “charity patient.” The costs for his care constitute a bad debt, not a charitable benefit underwritten by a willing public. Nor may a patient who may himself be unable to pay and thus be in effect an indigent person, but whose total expenses are paid from some other source, be categorized as a charity patient. The reason is that the costs for his care are not borne by the public as an expression of charity. Compare Patterson v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 167, 168 (384 SE2d 205) (1989), where partial payment made by insurance did not remove the patient from the charity category. What was crucial was that the patient “was admitted without any agreement to pay for the services to be rendered and that he does not have assets sufficient to pay for the services. ...”

If a person qualified for free or reduced-rate medical care which is paid for (in whole or in part) by the charitable trust fund, then he is a “charity patient” against whom the immunity may be asserted so as to protect those charitable funds from depletion by a recovery for damages for negligence, so that they can be devoted to the purpose intended by the public which dedicated and supplied them, i.e., the treatment of other charity patients as well. Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833, 834 (1), supra. As indicated there, a beneficiary of the public munificence cannot recover from those funds. Nor could he recover from the funds paid for other patients’ care and treatment, because he does not, from inability to do so (indigency), contribute to that pool. Compare Fulton-DeKalb Hosp. Auth. v. Alexander, 193 Ga. App. 505, 506 (2) (388 SE2d 372) (1989).

The hospital is immune from suit brought by recipients of its charity, to use the words of Cutts v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 517, 518 (1) (385 SE2d 436) (1989), although it is not immune from suits by all patients. Alexander, supra at 506 (1). Cutts held that a patient charged for only a discounted percentage of the actual hospital charges was a recipient of the hospital’s charity to the extent of the difference between the actual charges and the much smaller sum which the patient was required to pay. As here, there was no evidence in Cutts that the charges were paid or payable from any secondary source.

The question is whether the trial court abused its discretion under OCGA § 24-4-2 in refusing to put the burden of proof on the one who claimed the patient was not a charity patient. The answer is that it did, because as in Cutts, the hospital “produced evidence that it had extended its charity to [the patient, so that] the burden shifted to appell[ee] to produce evidence showing that [the patient] came within the exception to the charitable immunity doctrine and that . . . [he] was ... a ‘paying patient’ with a secondary source for paying the balance.” Id. at 518-519.

The facts with regard to the patient’s indigency vel non lie peculiarly within the knowledge of that person. The proof of a person’s financial condition is very private. He who claims a special status in society not only is in the best position to prove his qualifications for that status but also should have to prove it because he seeks special treatment by society. On the other hand, casting the burden on the otherwise-immune charity institution, which must in the opposing view use funds designated for the medical treatment of charity patients to conduct discovery and probe into a patient’s personal affairs beyond that necessary to accept him as a charity patient, trangresses the scope of discretion contemplated by OCGA § 24-4-2. Where a non-paying patient, who in the end was the recipient of the hospital’s charity, claims he was able to pay and was not a charity patient so that the hospital is contractually bound to him and therefore subject to a negligence claim, he or his personal representative should have to prove it.

2. The error ruled on makes a consideration of the other enumerations of error moot.

It is noted that OCGA § 51-1-29.1, effective July 1, 1987, does not apply to this case.

Judgment reversed.

Pope, J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

I concur fully in the result but am constrained to make the following comments.

As in the instant case, there was no evidence in Cutts v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 517 (385 SE2d 436) (1989), that the charges were paid or payable from any secondary source. In the instant case, however, unlike Cutts, there was conflicting evidence, at the time the motion for summary judgment was argued, as to whether decedent would qualify as a “paying patient” and, under Morton v. Savannah Hosp., 148 Ga. 438 (96 SE 887) (1918), would have standing to bring a negligence action,

The evidentiary posture at the time the motion was argued may therefore be summarized as follows:

(1) An agreement, at the time of decedent’s entering the hospital, to pay for services rendered may be implied from the fact that, upon one or the other of his admissions to Grady, decedent told the admissions clerk (or “investigator”) that he had insurance, thus arguably representing that an insurer would pay for his hospital stay and thereby meeting the first prong of the Morton test.

(2) Upon the initial hospital admission decedent told the investigator that he usually earned between $200 and $400 per week (or possibly as much as $1,800 per month); he also stated, however, that during the preceding month he had earned only $500. The investigator then, in accordance with Grady’s policy, tentatively assigned an “X” (full pay) and “40” (has insurance) classification pending verification of income; the verification was apparently not completed. This contradictory evidence was presented in connection with the motion for summary judgment; Grady had not yet obtained the income tax evidence (no returns filed for 1980 — 1983; the 1984 return showed income of only $4,545, with one dependent) which it later presented at trial. Had this evidence been available earlier, it might conceivably have affected the result of the motion for summary judgment; we decline to speculate on this, however. Therefore, at the time the trial court denied summary judgment, there existed a genuine issue as to decedent’s ability to pay since his status under the Morton test’s second prong was still in doubt.

As to the third prong, it is undisputed that the $52.45 bill was never paid. The fact that the hospital billed the insurer named by decedent can of course be construed as evidence that the hospital regarded decedent as a paying patient and expected him, or some person acting on his behalf, to pay for the services rendered. This fact might also be construed as evidence under the second prong, supra, that Grady regarded decedent as a paying patient. The seemingly inconsistent fact that, after the insurer declined to pay the bill, the hospital did not then bill the estate might also be construed as evidence on the second prong, that Grady did not regard decedent as a paying patient, contrary to the inference raised by the hospital’s having initially billed the insurer.

Further, as I read the record, it appears that the trial court erred in instructing the jury on the judicially accepted test for determining whether an individual comes within the “paying patient” exception to charitable immunity. According to the record, appellant’s counsel requested that the following charge be given: “. . .1 charge you under the law that a ‘paying’ patient is one who is able to pay, agrees to pay and does pay for the medical care and treatment he receives. If you find that the patient in this case does not meet any of these three requirements, then you must find that he is not a paying patient and that he was entitled to reduced-cost medical care from the defendant.” This charge was based on Morton, supra at 441, where the Supreme Court held that “if one is received as a patient at a charitable hospital, is able to pay, and does pay for . . . services, and there is an injury on account of the . . . negligence . . . of a . . . servant of the institution, a petition alleging damages on account of injuries so arising is not subject to demurrer.” Accord Patterson v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 167, 168 (384 SE2d 205) (1989).

The instruction actually given by the trial court, as recorded in the transcript, is as follows: “I charge you . . . that under the laws of this State a paying patient is one who is able to pay, either personally or through insurance, and is not the recipient of the hospital’s charity.” Even a cursory comparison of the charge actually given with the Morton prototype, supra, reveals that the discrepancies are such as to be at best confusing and at worst positively misleading, as well as without foundation in established law. The error in the charge was then compounded in the verdict form given to the jurors: “Understanding that the opposite of a charity patient is a paying patient, has Grady carried the burden of proof by a preponderance of the evidence that on June 2nd, 1985, when health care services were rendered to Joseph Fanning, he was a charity patient?” The ambiguity, incompleteness, and inaccuracy of the jury charge, especially as reiterated in the special verdict form, made the charge prejudicial to appellant.

Decided July 12, 1990

Rehearing denied July 30, 1990 — Cert, applied for.

Alston & Bird, Robert D. McCallum, Jr., Geoffrey H. Cederholm III, for appellant.

William N. Robbins, Joseph A. Maniscalco, Jr., for appellee.

       We note that although this proposed charge is basically a correct statement of the Morton test, the inclusion in the second sentence of the words “any of’ converts the test, stated in the conjunctive in Morton, into a series of disjunctive criteria and thereby alters the test. Since the charge was not given, this error is of no significance in the instant case.


author: Banke, Presiding Judge.

text:
    A90A0396.
    PEEKS et al. v. DEPARTMENT OF HUMAN RESOURCES et al.
    (396 SE2d 511)
   Banke, Presiding Judge.

The appellants filed this wrongful death action against the Georgia Department of Human Resources, d/b/a Northwest Georgia Regional Hospital (“the hospital”) and three of its employees — Dr. Vibhaker Patel (the clinical director of the hospital), Dr. Gopichand Manney (a staff psychiatrist), and Linda May (a hospital social worker) — seeking to hold them liable for the death of John W. Peeks, who was killed by one of the hospital’s former patients, David Crawford. This appeal is from the grant of the appellees’ motions for summary judgment.

Crawford had been committed to the hospital’s custody for examination and evaluation pursuant to an order of the Probate Court of Floyd County dated February 15, 1985. That order was issued on the basis of information that he had been wandering around his neighborhood with a pipe and had attempted to hit his nephew with the pipe. Crawford had previously received treatment at the hospital and had been diagnosed there as a chronic paranoid schizophrenic. He voluntarily committed himself following the completion of the court-ordered evaluation referred to above but then asked to be released a week later. His treating psychiatrist, appellee-defendant Manney, responded by initiating proceedings for his involuntary commitment, whereupon Crawford withdrew his request for release. However, three weeks later, on March 23, 1985, he was discharged from the hospital by another staff psychiatrist, Dr. Edward Siedlecki, who is not a party to this litigation. Dr. Siedlecki had been assigned by the hospital’s clinical director, appellee Patel, to substitute for Dr. Manney while the latter was away attending a seminar and taking two days’ vacation. In releasing Crawford, Dr. Siedlecki apparently was guided by a determination made by the patient’s “treatment team” (consisting of appellee May, a nurse, and an activity therapist), to the effect that he had satisfied the discharge criteria which they and Dr. Manney had set for him. Three weeks after his release, Crawford attacked the decedent with a pipe, mortally injuring him.

The appellants’ claims are predicated on Bradley Center v. Wessner, 250 Ga. 199 (296 SE2d 693) (1982), wherein the Supreme Court affirmed this court’s holding in Bradley Center v. Wessner, 161 Ga. App. 576, 581 (287 SE2d 716) (1982), that “where the course of treatment of a mental patient involves an exercise of ‘control’ over him by a physician who knows or should know that the patient is likely to cause bodily harm to others, an independent duty arises from that relationship and falls upon the physician to exercise that control with such reasonable care as to prevent harm to others at the hands of the patient.” The appellees contend that they cannot be charged with any such duty under the circumstances because the evidence of record establishes without dispute that Dr. Siedlecki alone had the authority to release Crawford during Dr. Manney’s absence and that he alone made the decision to do so. They further contend that they are immune from liability pursuant to OCGA § 37-3-4, which provides as follows: “Any physician, psychologist, peace officer, attorney, or health official, or any hospital official, agent, or other person employed by a private hospital or at a facility operated by the state, by a political subdivision of the state, or by a hospital authority created pursuant to Article 4 of Chapter 7 of Title 31, who acts in good faith in compliance with the admission and discharge provisions of this chapter shall be immune from civil or criminal liability for his actions in connection with the admission of a patient to a facility or the discharge of a patient from a facility.” Held:

1. Because appellee Manney was on leave from the hospital when Crawford was released and because appellee May was a social worker rather than a physician, we conclude that neither of them was in a position of “control” over Crawford at that time within the contemplation of Bradley Center, supra. Consequently, we hold that the trial court did not err in granting summary judgment in their favor.

2. The evidence does not, however, conclusively establish that appellee Patel had no “control” over Crawford within the contemplation of Bradley Center. As chief medical officer of the hospital, he had a direct statutory responsibility to oversee the patient’s discharge pursuant to OCGA § 37-3-21, which specifies that “in no event shall any such patient be . . . discharged if, in the judgment of the chief medical officer of such facility, such discharge would be unsafe for the patient or others.” Yet, in an affidavit submitted in support of his motion for summary judgment, he disavowed any involvement whatever in the decision to discharge Crawford. Under such circumstances, it is not apparent as a matter of law that he acted in “good faith compliance” with the discharge provisions of Chapter 3 of Title 37 of the Code so as to be entitled to immunity under OCGA § 37-3-4, supra; and we accordingly hold that the trial court erred in granting his motion for summary judgment.

3. Because we have held that Dr. Patel was not entitled to summary judgment, and because it is apparent without dispute from the record that the DHR provided him with liability insurance coverage for acts and omissions connected with his employment, we must conclude that the trial court also erred in granting summary judgment to the DHR, for the Supreme Court has held that “insofar as [a state agency] is vicariously liable for the acts of its servants, ... for whom insurance is provided, then sovereign immunity is waived to the extent of the available insurance.” Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 303 (357 SE2d 569) (1987). See also Price v. Dept. of Transp., 257 Ga. 535 (361 SE2d 146) (1987).

Judgment affirmed in part and reversed in part.

Birdsong and Cooper, JJ., concur.

On Motion for Rehearing.

On motion for rehearing, Dr. Patel and the DHR argue that the requirements of OCGA § 37-3-21 (a) were, satisfied in this case because Dr. Siedlecki had been assigned by Dr. Patel to act as his “designee” in determining whether Crawford met the criteria for discharge set forth in that Code section. In this connection, we note that the term, “chief medical officer,” is defined by OCGA § 37-3-1 (1), to mean “the physician with overall responsibility for patient treatment at any facility receiving patients under this chapter or a physician appointed in writing as the designee of such chief medical officer.” (Emphasis supplied.)

While there appears to be no question that Dr. Siedlecki was assigned by Dr. Patel to act as Crawford’s treating physician during Dr. Manney’s absence, we have been cited no evidence that he was “appointed in writing” to act as Dr. Patel’s “designee” in determining whether Crawford’s release or that of any other patient would be safe for the patient and others. Furthermore, we have serious doubts about whether the appointment of a patient’s treating physician to act as the chief medical officer’s designee in discharging this statutory duty would be consistent with the purpose of OCGA § 37-3-21 (a). As we interpret that Code section, it is designed to prevent the discharge of a “voluntary” patient from a state mental institution in the absence of an administrative determination that such discharge would be safe for the public as well as the patient. To interpret § 37-3-1 (1) as permitting that determination to be made by the patient’s treating physician would be to subvert that statutory purpose. Thus, while OCGA § 37-3-1 (1) undoubtedly gives the chief medical officer the authority to appoint another physician to make the § 37-3-21 (a) determination on his behalf, we believe the statutory scheme contemplates that the determination will be made by a physician acting on behalf of the institution rather than by the patient’s treating physician.

Decided July 3, 1990

Rehearings denied July 30, 1990 — Cert, applied for.

William Q. Bird, Robert K. Finnell, for appellants.

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Stephanie B. Manis, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Mary F. Russell, Bruce M. Edenfield, Assistant Attorneys General, Shaw, Maddox, Graham, Monk & Harris, C. Wade Monk II for appellees.

The motion for rehearing is accordingly denied.


author: Beasley, Judge.

text:
    A90A0427.
    MENENDEZ v. JEWETT.
    (396 SE2d 294)
   Beasley, Judge.

Karen Menendez was the driver of an automobile which failed to negotiate a curve and struck a telephone pole. Her passenger, Bradley Jewett, was injured and sued her.

Menendez met Jewett, an acquaintance, at a lounge one evening. They socialized with mutual friends and acquaintances for several hours, until the bar closed. Jewett’s friends urged that he not attempt to drive home because he appeared to be under the influence of alcohol and suggested that appellant drive him home. A jury, by special interrogatory, found that Jewett was 40 percent contributorily negligent and awarded him $267,916. On a motion for additur, the court increased the award by the 40 percent deduction and entered judgment accordingly.

1. The first question is whether the court erred in refusing to give defendant’s charge on assumption of the risk.

If the evidence entitled defendant to such a charge, no harm resulted from its omission. The reason is that the jury found that the proximate cause of the wreck and consequently of plaintiff’s injuries were the combined negligence of defendant driver (60 percent of the cause) and of plaintiff passenger (40 percent of the cause).

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. Southland Butane Gas Co. V. Blackwell, 211 Ga. 665, 668 (88 SE2d 6) (1955); Doctors Hosp. of Augusta v. Poole, 144 Ga. App. 184, 185 (2) (241 SE2d 2) (1977); Johnson v. Jackson, 140 Ga. App. 252, 258 (5) (a) (230 SE2d 756) (1976). The jury’s finding as fact not only that a proximate cause, but the predominant proximate cause, was defendant’s negligence precluded application of assumption of the risk because it would have required an inconsistent finding. Comparative or contributory negligence and assumption of the risk are mutually exclusive, although relative, theories. See Osburn v. Pilgrim, 246 Ga. 688, 695 (273 SE2d 118) (1980). In the former, both constitute “legal cause,” whereas in the latter, the plaintiff’s is the legal cause. See Laseter v. Clark, 54 Ga. App. 669, 670 (1) (189 SE 265) (1936).

2. Menendez claims, justifiably, that the court erred in excluding evidence of Jewett’s blood alcohol test.

One of the issues was his perception in choosing to ride with defendant Menendez. Was he an innocent victim or not? The fact that his blood alcohol content was .14 soon after he made that choice would tend to show that his understanding, appreciation, and judgment concerning Menendez’ condition and the wisdom of riding with her was voluntarily impaired. It would also tend to cast doubt on, if not impeach, his testimony that in his view at the time, she was “fine” and capable of driving safely.

“It has long been the rule in this State that where the relevancy or competency of evidence is doubtful, it should be admitted and its weight left to the determination of the jury. [Cits.]” Lovejoy v. Tidwell, 212 Ga. 750, 751 (95 SE2d 784) (1956b “ ‘The admission of evidence is a matter which rests largely within the sound discretion of the trial judge.’ [Cit.] However, ‘The Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value,’ Agnor’s Georgia Evidence, § 10-2, p. 165; . . . and evidence is relevant if it renders the desired inference more probable than it would be without the evidence. [Cit.]” Baker v. State, 246 Ga. 317, 319 (271 SE2d 360) (1980).

The evidence that plaintiff’s blood alcohol content was .14, the same as defendant’s, rendered him presumptively under the influence of alcohol such that he was prohibited from driving. OCGA §§ 40-6-392; 40-6-391. That his condition negatively affected his perception made less probable the validity of his trial testimony about it. In addition, it skewed and shadowed his judgment in choosing to ride with Menendez.

Nevertheless, the verdict and judgment would not be reversible on this ground because this circumstantial evidence of his condition was cumulative of the undisputed evidence from himself and others that he was too drunk to drive, having had by his own testimony six or seven beers between 11:00 p.m. and about 2:30 a.m., so much so that his companions took away his motorcycle keys and helmet, without his objection. Thomas v. Statewide Beverage Equip,, 152 Ga. App. 293, 295 (4) (262 SE2d 575) (1979).

3. No reversible error occurred in excluding evidence of Jewett’s non-usage of a seat belt. City of Fairburn v. Cook, 188 Ga. App. 58, 67 (372 SE2d 245) (1988), decided before passage of Georgia’s seat belt law, OCGA § 40-8-76.1, held that lack of probative evidence demonstrating that an automobile accident victim would not have been injured had he been wearing his seat belt precluded jury consideration of that issue. See also Katz v. White, 190 Ga. App. 458 (379 SE2d 186) (1989), another case decided prior to the effective date of OCGA § 40-8-76.1.

Jewett’s attending physician testified that he was a board-certified emergency physician, but he had no formal training as to the relationship of the use of seat belts to injuries. He was familiar with articles in medical journals stating there was a relationship, and his experience as an emergency room physician led him to believe that seat belts helped prevent serious injuries in automobile accidents. The trial court, however, did not find him to be an expert witness and declined to admit evidence that Jewett was not wearing his seat belt. Qualification as an expert rests entirely within the sound discretion of the trial judge. Braggs v. State, 189 Ga. App. 275, 276 (375 SE2d 464) (1988).

4. Jewett’s divorce decree was properly excluded from evidence. He did not claim that the injuries he sustained in the accident caused his divorce or that he was entitled to damages because of divorce. His former wife made no claim for loss of consortium.

5. Finally, granting the additur was erroneous.

The jury found that plaintiff himself was negligent and that his negligence contributed to the proximate cause of the wreck and his becoming injured. It compared his negligence with defendant’s and found that his accounted for forty percent. The jury’s request for further instructions on computing percentages, after it had been deliberating about an hour and a half, confirms that it early on found both parties to be negligent under the circumstances. After being reinstructed, it reached the verdict in less than ten minutes.

The court must not interfere with the jury’s verdict, a unanimous decision by twelve impartial people, unless it is “so inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case.” OCGA § 51-12-12. The court concluded that the verdict was inadequate as a matter of law because the jury found negligence on the part of plaintiff which contributed proximately to the damages, whereas there was no evidence of such. The court came to this conclusion by comparing the similarities in Bentley v. Buice, 102 Ga. App. 101 (115 SE2d 706) (1960). However, while there are some common factors, the circumstances in Jewett’s case differ materially, and there is some evidence on two scores to support the verdict. One concerns plaintiff’s choosing to ride with defendant in the first place, and the other involves plaintiff’s interference with defendant’s driving.

“ Tf a driver, from intoxication, is in a condition which renders him incapable of operating (the vehicle) with proper diligence and skill, and this is known or palpably apparent to one entering the car, this is a fact that may be proved for the consideration of the jury [in determining fault].’ ” Trussell v. Lawrence, 120 Ga. App. 39, 43 (1) (169 SE2d 611) (1969). Illustrative is Bell v. Proctor, 212 Ga. 325 (1) (92 SE2d 514) (1956).

The trial court failed to take into account the reasonable inferences, and all of the evidence, which the jury was authorized to use. Considering the evidence in a light favorable to the verdict, Jewett knew when he chose to ride with Menendez what the effects of imbibing alcohol are on a person, having been rather extensively formally trained on the subject during his military service. He knew that she had had at least two beers at the bar they were leaving, because he had seen her with two “fresh” ones. He thought she had had about five. He knew she had been there for about 4-% hours and that he had not been in her presence the entire time, so he was not certain how many drinks she had. They were leaving at the closing hour, about 2:30 a.m., when everyone was tired on top of alcohol consumption. He knew she had been at another bar before she. came to this one. He had seen her drunk enough on an earlier occasion to affect her behavior. This time it caused one companion to conclude that both of them were too drunk to drive. Jewett had had six or seven beers, so he was not as keenly aware of her condition when he got into her car. His own intoxication, if it rendered him unable for that reason to exercise ordinary care, did not excuse him from the duty. Powell v. Berry, 145 Ga. 696, 700 (2) (89 SE 753) (1916).

Menendez later admitted that she was too drunk to drive, the officer charged her with driving under the influence, and her blood alcohol content was the same as Jewett’s, .14. Even if she did not manifest the usual outward signs, plaintiff’s knowledge of their respective conditions could lead to the finding that he knew or, in the exercise of ordinary care should have known, he was going with a driver who had been drinking and who was, considering all the circumstances including the hour, a less safe driver than the law and common sense allows to operate an automobile. “No fact is better known or publicized than that alcohol slows the reflexes, dulls the thinking processes, slows the impulse stimuli and reaction thereto, and is rated by doctors, law enforcement officials, and safety engineers and planners as being one of the chief causes of highway accidents in this country.” Freeman v. Martin, 116 Ga. App. 237, 242 (156 SE2d 511) (1967). See Seitz v. McCullough, 138 Ga. App. 147 (225 SE2d 917) (1976).

Decided July 12, 1990

Rehearings denied July 30, 1990 — Cert, applied for.

Barrow, Sims, Morrow & Lee, R. Stephen Sims, Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, for appellant.

Randall G. Levine, Charles R. Ashman, Jeffrey W. Lasky, David S. Bills, Don C. Keenan, for appellee.

In addition, the court in granting the additur completely disregarded the evidence that Jewett was joking and bouncing around in the passenger seat, “fooling around,” “jumpy,” “very loud,” “swinging around,” just before the curve, distracting the driver. The jury was authorized to find that this, too, was negligent behavior on plaintiff’s part, considering the circumstances, and that it contributed proximately to the driver’s missing the curve.

“There is no better established rule of law than that negligence, and diligence, even gross negligence and slight diligence are questions of fact, to be determined by a jury, and not by the court. [Cit.]” Kirkland v. Moore, 128 Ga. App. 34 (195 SE2d 667) (1973).

The additur is reversed as an unauthorized invasion of the verdict, and the trial court is directed to reinstate the original judgment.

Judgment reversed and case remanded with direction.

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