text:
    73922.
    74035.
    LEONARD v. EASLEY. FEGREUS v. EASLEY.
    (359 SE2d 443)
   McMurray, Presiding Judge.

Case No. 73922

Case No. 73922 is a negligence action arising from a motor vehicle collision. Appellee Easley as plaintiff sought to recover for loss of use and damage to his automobile from two defendants, appellant Stacey Andrea Leonard (now known as Stacey Andrea Fegreus) and Shelia Joy Sumlin. Following the failure of appellant to file her answer or other defensive pleading a default judgment was entered in favor of appellee and against appellant in the amount of $1,307.88 with interest and court cost. Appellant’s motion to set aside judgment was denied and this appeal from the denial of the motion was filed. However, the appeal in Case No. 73922 must be dismissed due to appellant’s failure to follow the discretionary appeal procedure required by OCGA § 5-6-35 (a) (8) in such cases. Folks, Inc. v. Agan, 177 Ga. App. 480 (340 SE2d 26).

Case No. 74035

Case No. 74035 is an action by appellant Stacey Andrea Fegreus (formerly known as Stacey Andrea Leonard) against appellee Easley, seeking damages for an alleged abuse of process. Appellant’s complaint alleges that appellee had previously filed a civil action against appellant; that the previous civil action by appellee was for damages allegedly caused by appellant; that appellant was not responsible in any way for the damages of appellee; and, that appellee obtained a default judgment against appellant. The complaint further alleges that prior to appellee’s filing of his prior civil action he had received compensation for his damages from his insurance carrier; that after receiving the default judgment appellee filed a certificate with the Department of Public Safety for the State of Georgia causing the driver’s license of appellant to be suspended; that appellee has abused the process of law; and, that appellee has caused the suspension of the driver’s license of appellant in an attempt to collect a debt when such debt has been paid by the insurance carrier of appellee and that appellant has been damaged by the actions of appellee.

Appellee moved for summary judgment relying upon the evidence of record including the certified record of the prior civil action, Case No. 73922. Appellee’s motion for summary judgment was granted, the superior court holding that: “The instant action is barred by the doctrine of res judicata . . . [I]t is but a thinly veiled attempt to litigate issues which have been previously adjudicated.” Appellant appeals the grant of summary judgment in favor of appellee. The superior court’s holding that the doctrine of res judicata barred appellant’s action is enumerated as error and appellant argues that the doctrine of res judicata “does not apply in this civil action.”

“For res judicata to act as a bar of a subsequent action, the original and subsequent action must bear certain identical characteristics. The two actions must be between identical parties or their privies, and the cause of action in each suit must be identical.” Norris v. Atlanta & West Point R. Co., 254 Ga. 684 (333 SE2d 835). While the appellant is clearly attempting to relitigate a number of issues, the cause of action in this abuse of process action is not identical to that in Case No. 73922, the prior negligence action, and consequently the superior court erred in its reasoning that the instant action is barred by the doctrine of res judicata. However, as the grant of summary judgment in favor of appellee and against appellant in Case No. 74035 was correct for other reasons, the superior court’s judgment is affirmed. Jones v. First Nat. Bank of Atlanta, 147 Ga. App. 441 (249 SE2d 154); Kitchens v. Winter Co. Bldrs., 161 Ga. App. 701, 703 (2) (289 SE2d 807).

First, we should note that while the doctrine of res judicata is inapplicable, the similar doctrine of collateral estoppel “precludes readjudication of an issue already adjudicated between the parties or their privies in a prior action.” Norris v. Atlanta & West Point R. Co., 254 Ga. 684, 685, supra. A number of appellant’s allegations involve issues previously resolved in favor of appellee in the prior litigation between the parties and may not be readjudicated.

However, the crux of appellant’s abuse of process claim rests upon evidence that appellee had been paid for his damages by his insurance carrier prior to causing the suspension of appellant’s driver’s license for non-payment of a judgment pursuant to OCGA § 40-9-61. Appellant also relies upon the holding of McGlohon v. Ogden, 251 Ga. 625, 628 (1) (308 SE2d 541), “that in those cases in which plaintiff’s no-fault insurer is entitled to subrogation, the plaintiff’s recovery from the tortfeasor must not include damages for which the plaintiff has been compensated by his or her no-fault insurer (i.e. plaintiff’s recovery must not include damages which plaintiff’s insurer is entitled to recover by virtue of its right of subrogation). Therefore, in cases in which plaintiff’s no-fault insurer is entitled to subrogation, the collateral source rule is inapplicable.”

Decided July 8, 1987.

Larry W. Russell, for appellants.

Henry R. Stringfellow, for appellee.

Apparently, appellant assumes that appellee’s insurer is entitled to subrogation thereby precluding appellee’s reliance upon the collateral source rule. However, contrary to the implications arising from the facts and law relied upon by appellant, appellee’s insurer has no right of subrogation for the damages paid appellee for damage to his motor vehicle as the underlying motor vehicle collision (which occurred on November 19, 1982), and the insurance payments to appel-lee were both made prior to the 1984 amendment of OCGA § 33-34-3 (see Ga. L. 1984, p. 516, § 1) which added OCGA § 33-34-3 (d) (1) (B) providing for subrogation where no-fault insurance benefits are paid for damage to the insured motor vehicle. Thus, at that time there was no subrogation for benefits paid for damage to the insured motor vehicle so that in the case sub judice, the collateral source rule is applicable. Under the collateral source rule appellee is permitted to recover damages from appellant notwithstanding the fact that appellee received compensation for his damages from his insurance carrier. See McGlohon v. Ogden, 251 Ga. 625 (fn. 1), supra. As appellee was entitled to recover his judgment from appellant there was no abuse of process in his utilization of the provisions of OCGA § 40-9-61 for this purpose, the use for which this statute is intended. See generally Keenan v. Hardison, 245 Ga. 599 (266 SE2d 205).

Judgment affirmed in Case No. 74035. Appeal dismissed in Case No. 73922.

Sognier and Beasley, JJ., concur.


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    74048.
    CROW et al. v. EVANS.
    (359 SE2d 446)
   Sognier, Judge.

Danny Evans, a tenant at Morrow College Apartments, brought suit against the apartments’ owner, Robert Glickman, managing agent The Lane Company, and former managers Dot Sewell and Ricky Crow, to recover compensatory and punitive damages for injuries sustained when the bathroom floor next to the tub in his apartment collapsed while he was bathing his child. The trial court directed a verdict in favor of The Lane Company as to punitive damages; the jury returned a verdict in Evans’ favor against all defendants including The Lane Company for compensatory damages, and in favor of Evans against all defendants except The Lane Company for punitive damages. All defendants except The Lane Company appeal from the judgment entered on the jury verdict.

1. Appellants contend the trial court erred by denying their motion for directed verdict on the issue of punitive damages in view of the trial court’s granting The Lane Company’s motion for directed verdict on such damages. Appellants cite Willis v. Hill, 116 Ga. App. 848 (159 SE2d 145) (1967) and Chupp v. Henderson, 134 Ga. App. 808 (216 SE2d 366) (1975), in support of their argument that where defendants are sued jointly and severally, punitive damages cannot be assessed against any of them unless all are liable. We note initially that this proposition is mere dicta in both those cases. Willis, supra at 868 (5); Chupp, supra at 812 (3). However, even were we to accept the dicta as binding, it is clear that the proposition in Willis and Chupp is based on two principles of law, apportionment of damages and respondeat superior, which cannot be applied here as they were in those cases.

First, apportionment of damages, or, more specifically, the prohibition against apportionment of damages among joint and several tortfeasors, see Craven v. Allen, 118 Ga. App. 462 (164 SE2d 358) (1968), is not in issue here where the record clearly shows no apportionment of damages occurred. The jury returned a verdict against all defendants as to whom it was empowered to do so, and did not apportion the sum awarded among the various parties. See generally Elliott v. Leavitt, 122 Ga. App. 622, 628-629 (3) (178 SE2d 268) (1970). Although by granting The Lane Company’s motion for directed verdict on the issue of exemplary damages the trial court precluded the jury from returning a verdict against The Lane Company on those damages, the propriety of that directed verdict is not before this court since The Lane Company is not a party to this appeal and no enumeration of error has been raised pertaining to that directed verdict. As Judge Eberhardt so aptly remarked in Willis, supra, “[w]e do well to kill the snakes springing from the pages of the records before us — it is improper and foolhardy to stir up more.” Id. at 868. We note, however, that The Lane Company had replaced Sewell & Crow as managing agents only four days before the incident occurred, thus preventing, to a large degree, its discovering or correcting any defects. Thus, the failure to act despite longstanding and repeated notice of problems present as to appellants was absent as to The Lane Company (see Division 2 infra).

Second, while it is true that respondeat superior prohibits a finding against the master when there has been a judgment on the merits in favor of the servant on whom the master’s liability was predicated, see, e.g., Giles v. Smith, 80 Ga. App. 540, 543 (56 SE2d 860) (1949), that principle is inapplicable here. As to the issue of exemplary damages in the case at bar, the record reveals that two parties who were either agents or employees of the owner (“master”) of the apartments remained after the trial court directed a verdict in favor of The Lane Company. The jury apparently determined those parties’ actions were such as would support punitive damages (see Division 2 infra). Quite apart from the possibility that the owner’s actions themselves might support an award of punitive damages, under the circumstances here, having awarded damages against the apartment managers, there can be no question that the jury was authorized to award those same damages against the owner. Since we have here neither an impermissible apportionment of damages nor a failure to find against a servant through whom alone the master can be found liable, Willis and Chupp, supra, are inapposite, and we do not agree that in light of the trial court’s having directed a verdict in favor of The Lane Company on the issue of punitive damages, the entire award of such damages was erroneous.

Decided July 8, 1987.

Peter K. Kintz, K. Scott Graham, for appellants.

2. Appellants also maintain the trial court erred by charging the jury as to punitive damages because the evidence was insufficient as a matter of law to support such an award. Appellants argue that the mere breach of their duty to repair the apartment would not authorize punitive damages. Kaplan v. Sanders, 237 Ga. 132, 133 (1) (227 SE2d 38) (1976). While this principle is sound, we do not agree with appellants’ characterization of their actions here as a mere breach of their duty to repair. The evidence showed that appellants had been aware for several years of serious problems with the plumbing, not only in appellee’s apartment, but in the three contiguous apartments. Further, appellants had actually had to replace floors in contiguous apartments following accumulation of water, and were aware that another tenant had fallen through a bathroom floor because of similar leaks. This evidence was sufficient to authorize the jury to find that appellants’ inaction evinced a reckless disregard for or a conscious indifference to consequences, see Bowen v. Waters, 170 Ga. App. 65, 67 (2) (316 SE2d 497) (1984), thus constituting aggravating circumstances which permit the award of additional damages under the provisions of OCGA § 51-12-5. We therefore find no error in the trial court’s charging the jury on these damages.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

Eugene O’Brien, for appellee.


author: McMurray, Presiding Judge.

text:
    74198.
    JOHNSON et al. v. DALLAS GLASS COMPANY, INC. et al.
    (359 SE2d 448)
   McMurray, Presiding Judge.

Plaintiffs Jesse Johnson and Sarah Johnson filed an action to recover damages for personal injuries and property loss allegedly caused by defendant W. F. Johnson. Dallas Glass Company, Inc. (Dallas Glass) was included as a party defendant based on the doctrine of respondeat superior. In their complaint, plaintiffs alleged, in pertinent part, as follows: “On or about August 1, 1983, [defendant Johnson] was working on an automobile owned by [Dallas Glass] and did leave the engine running while working on said car. [Defendant] was negligent in failing to chock the wheels of said vehicle or to otherwise make sure said vehicle was secure . . . As a result of [defendant Johnson’s] negligence, the automobile did roll and strike the vehicle owned by Plaintiff, JESSE JOHNSON, and did cause the Johnson vehicle to strike Plaintiff, SARAH JOHNSON, causing her great bodily injury and causing her to suffer great pain of body and mind and has incurred medical expenses for medical attention and hospitalization in an amount in excess of $9,000.00 and are continuing . . . Plaintiff JESSE JOHNSON did suffer the loss of his automobile due to the negligence of the Defendants and has been damaged in the amount of $600.00.”

Dallas Glass answered and admitted that defendant W. F. Johnson was “working on” an automobile it owned and that defendant “did leave the engine running while working on said car.” Dallas Glass denied all other material allegations of plaintiffs’ complaint. Defendant W. F. Johnson filed a separate answer and denied all material allegations of the plaintiffs’ complaint.

At trial, the evidence disclosed that a vehicle, which was unoccupied, traveled from Dallas Glass’ parking lot to a parking lot where Jesse Johnson’s automobile was parked and struck Mr. Johnson’s car, thus causing the damages alleged by plaintiffs. Plaintiffs presented no evidence regarding the circumstances surrounding the “runaway” vehicle. Further, the only evidence presented at trial regarding the identity of the “unmanned” automobile was that it was a “Ford” that traveled from Dallas Glass’ parking lot.

Upon the close of plaintiffs’ case, the trial court granted defendants’ motions for directed verdict. Plaintiffs appeal. Held:

1. In their second enumeration of error, plaintiffs contend “[t]he trial court erred in granting a directed verdict as to [Dallas Glass and defendant W. F. Johnson’s] liability.” In their brief, plaintiffs concede that they relied on the doctrine of res ipsa loquitur to prove negligence; and, from this basis, plaintiffs argue that the evidence presented at trial was sufficient to support an inference that defendant W. F. Johnson was negligent.

“The doctrine of res ipsa loquitur is typically used to supply a deficiency of proof as to negligence. General Motors Corp. v. Muncy, 367 F2d 493 (5th Cir. 1966), cert. denied, 386 U. S. 1037, 87 S.Ct. 1476, 18 LE2d 600 (1967). It operates to permit an inference of negligence when the evidence does not directly establish how the injury occurred.” Kicklighter v. Nails by Jannee, 616 F2d 734, 740 (5th Cir. 1980). “Under Georgia law ... res ipsa loquitur is a rule of evidence which allows the jury to infer, from circumstantial evidence, negligence on the part of the defendant. Parker v. Daily, 226 Ga. 643, 645, 177 SE2d 44 (1970); Macon Coca-Cola Co. v. Chancey, 101 Ga. App. 166, 168-169, 112 SE2d 811, aff’d, 216 Ga. 61, 114 SE2d 517 (1960). . . . Under Georgia law, the doctrine of res ipsa loquitur applies when the following elements are present: (1) the injury must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) the injury must be caused by an agency or instrumentality within the exclusive control of the defendant-, (3) the injury must not have been due to any voluntary action or contribution on the part of the plaintiff. Richmond Hospital Authority v. Hines, 121 Ga. App. 537, 174 SE2d 364 (1970); Macon Coca-Cola Co. v. Chancey, supra.” (Emphasis supplied.) Kicklighter v. Nails by Jannee, 616 F2d 734, 739, supra.

In the case sub judice, although Dallas Glass admitted in its answer to plaintiffs’ complaint that defendant W. F. Johnson was “working on” its vehicle on the day of the collision, defendant W. F. Johnson denied this allegation and at trial plaintiffs submitted no evidence showing that their damages “were caused by an agency or instrumentality within the exclusive control of defendant” at the time of the collision. Consequently, there was not sufficient evidence to apply the doctrine of res ipsa loquitur. Neither was there any other evidence to sustain a finding of negligence on the part of defendant W. F. Johnson.

“Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed. OCGA § 9-11-50 (Code Ann. § 81A-150). In reviewing grant of a directed verdict ... we must decide whether all the evidence demanded it, or whether there was some evidence supporting the verdict of the jury. Bryant v. Colvin, 160 Ga. App. 442 (287 SE2d 238) (1981).” Pendley v. Pendley, 251 Ga. 30 (1), 31 (302 SE2d 554). In the case sub judice, since there was no evidence presented at trial to support a finding that defendant W. F. Johnson was negligent, the trial court did not err in granting a directed verdict in favor of defendant W. F. Johnson. See Hospital Auth. of St. Marys v. Eason, 222 Ga. 536 (1) (150 SE2d 812).

Decided July 8, 1987.

William T. Cox, Jr., for appellants.

Next, we turn to plaintiffs’ claim that Dallas Glass was responsible for plaintiffs’ injuries based on the doctrine of respondeat superior. “This maxim means that a master is liable in certain cases for the wrongful acts of his servant, and a principal for those of his agent. [Cits.]” Black’s Law Dictionary 1475 (4th ed. 1951). From this definition, it is apparent in the case sub judice that Dallas Glass’ liability to plaintiffs is derivative of defendant W. F. Johnson’s negligent acts, if any. Consequently, since plaintiffs failed to present evidence showing that defendant W. F. Johnson’s negligence was the cause of their damages, the trial court did not err in granting a directed verdict in favor of defendant Dallas Glass.

Another reason the trial court did not err in directing a verdict in favor of Dallas Glass is that plaintiffs failed to present evidence showing that defendant W. F. Johnson was acting in any capacity on behalf of Dallas Glass. See Strickland v. Baker, 91 Ga. App. 97 (84 SE2d 851), and Studstill v. American Oil Co., 139 Ga. App. 54 (228 SE2d 8).

2. Plaintiffs contend in their third enumeration of error that “[t]he trial court erred in not admitting [their] Exhibit P-3 (Police report).” The most glaring reason this enumeration of error is without merit is that plaintiffs offered no basis for entering this document into evidence. “Any individual who is familiar with the method of keeping records and can identify them may lay the foundation required by OCGA § 24-3-14 (b). Cotton v. John W. Eshelman & Sons, 137 Ga. App. 360, 362 (223 SE2d 757). . . . See Pickett v. State, 123 Ga. App. 1 (2) (179 SE2d 303) in which this court held a police report may be a business entry, as contemplated by OCGA § 24-3-14 (b), where a proper foundation is laid.” Reed v. Heffernan, 171 Ga. App. 83 (1) (a), 84 (318 SE2d 700). In the case sub judice, a proper foundation was not laid for the introduction of the police report into evidence.

3. In light of our holding in Divisions 1 and 2 of this opinion, it is unnecessary to address the issues raised in plaintiffs’ remaining enumerations of error.

Judgment affirmed.

Sognier and Beasley, JJ., concur.

C. Michael Evert, Jr., J. Kenneth Moorman, for appellees.


author: Beasley, Judge.

text:
    74242.
    GARMON v. HEALTH GROUP OF ATLANTA, INC. et al.
    (359 SE2d 450)
   Beasley, Judge.

A nurse appeals from summary judgment to her former employer Health Group of Atlanta, Inc. d/b/a Doctors Memorial Hospital, and to her supervisor, in an amended suit for wrongful termination by the hospital and tortious interference with her employment by the supervisor.

The nurse was employed by the hospital from November 1972 to November 1973, and from September 1978 through September 1984, as an administrative head nurse and alternate to the director of nursing. Following some dispute and dissatisfaction with scheduling changes in the nursing department, employment was terminated by the supervisor for what the hospital termed “insubordinate unprofessional, and unacceptable” actions and behaviors consisting of “[u]nyielding and belligerent attitude toward colleagues,. . . [r]efusal to comply with a reasonable request made by the employee’s supervisor to work collaboratively with peers to achieve a goal within a specific time frame, . . . [u]se of abusive language toward peers, . . . [and] [r]efusal to support the goals and objectives necessary for the continued operation of the Nursing Department.”

The nurse acknowledged that she had no formal written contract of employment, but she alleged that she understood that the hospital’s policies and past practices with regard to employer-employee relations as well as her job description provided the terms of her employment contract; that according to the hospital’s policy statement with regard to conduct, discipline, and termination of employment, she could only be terminated by joint decision of her immediate supervisor and the hospital’s personnel director, subject to approval by the divisional vice president or president and the hospital administrator if the discharge was for cause; that if such review had occurred, it would have been apparent that the discharge was improperly motivated and executed and not in the “best interests of the Hospital” as required by the written policies; that the discharge was in breach of the procedural safeguards guaranteed employees by virtue of the hospital’s policy statements and of her “employment contract”; that the hospital was under a duty, pursuant to its stated policies and to the law regarding fair employment practices, to investigate the validity of the accusations made against her, which duty the hospital failed to perform or performed inadequately; and that she was therefore discharged completely without cause and in knowing and reckless disregard for the fact that accusations made against her in the scheduling conflict were unwarranted and false. The nurse further alleged that the supervisor wrongfully, maliciously, and recklessly interfered with the employment relationship by wrongfully procuring her discharge based upon false accusations of unprofessional and insubordinate conduct.

Both the hospital and the supervisor moved for summary judgment which was granted, specifically finding that inasmuch as no written contract of employment was executed, employment was terminable at will and did not give rise to a cause of action against the hospital for wrongful discharge. The court further determined that the supervisor both hired and discharged plaintiff with authority, so that no cause of action existed for wrongful interference either.

The nurse claims that the court erroneously failed to consider and rule upon her claim that the hospital’s policies regarding termination of employees were enforceable and that the hospital failed to comply with these policies in discharging her. She also claims that the court erroneously found as a matter of law that the supervisor acting alone had authority to discharge her, making the latter’s motive irrelevant.

1. The nurse does not now dispute the court’s finding that she was an at-will employee, but she maintains that her case presents an issue of first impression unaddressed by the trial court: “whether an employer’s policies and procedures manual containing express provisions pertaining to discipline and termination of employees as well as employee conduct is enforceable, and whether an employer’s failure to comply with the terms of such a manual can give rise to an action for wrongful termination by an at-will employee.”

This argument was raised before the trial court, and inasmuch as the court’s order recites that the entire record as well as oral argument was considered, it is apparent that the court did consider such position prior to reaching its determination. Although it was under no obligation to make specific findings as to each argument raised in its grant of summary judgment (OCGA § 9-11-52; Karsman v. Portman, 173 Ga. App. 108, 109 (3) (325 SE2d 608) (1984)), the court implicitly ruled on the point when it held that where employment is terminable at will, the employer may discharge the employee without liability.

Appellant asks this court to hold that the hospital policies regarding employee termination are legally enforceable in her circumstances so that failure to comply with such policies would support a claim for wrongful termination even though she concedes that the policies cannot be relied upon to transform an at-will employee into a contract employee. See Burgess v. Decatur Fed. Savings &c. Assn., 178 Ga. App. 787 (345 SE2d 45) (1986); Miles v. Bibb County, 177 Ga. App. 364 (1) (339 SE2d 316) (1985); Georgia Ports Auth. v. Rogers, 173 Ga. App. 538 (1) (327 SE2d 511) (1985). The bases of her argument are that there have been decisions granting an at-will employee relief pursuant to the employer’s policies and procedures, citing Fletcher v. Amax, Inc., 160 Ga. App. 692 (288 SE2d 49) (1981); that there is a national judicial trend toward protection of at-will employees, citing numerous decisions from foreign jurisdictions; and that there is room for change in Georgia because OCGA § 34-7-1 does not expressly address the problem of abusive and retaliatory discharges.

“It is axiomatic that appellant has no cause of action against ap-pellee [hospital] for the alleged wrongful termination in light of the uncontroverted evidence that there was no employment contract, either written or oral, between the parties. Georgia Power Co. v. Busbin, 242 Ga. 612 (250 SE2d 442) (1978).” Gibson v. Winn-Dixie Atlanta, 183 Ga. App. 192, 193 (358 SE2d 320) (1987); OCGA § 34-7-1. The fact that the employee had notice of certain hospital policies and procedures regarding discipline and termination of employees which she alleges were not followed in her discharge would not give rise to an action for wrongful termination.

Fletcher, supra, does not aid appellant. The plaintiff in that case was not suing in regard to his employment status, see Capriulo v. Bankers Life Co., 178 Ga. App. 635, 640 (3) (344 SE2d 430) (1986). Rather, he was seeking severance pay based upon internal policies set forth in a procedure and policy manual issued by the company following an amicable termination of his status with the employer. “It is the accepted law of this state that an additional compensation plan offered by an employer and impliedly accepted by an employee, by remaining in employment, constitutes a contract between them, whether the plan is public or private, and whether or not the employee contributes to the plan. [Cits.]” Fletcher, supra at 695; see also Ga. Ports Auth., supra at 540 (2).

The internally administered policies which the nurse seeks to legally enforce go to the essence of the employment relationship and the employer’s right in an at-will situation to terminate the employee with or without cause and regardless of motive. Bendix Corp. v. Flowers, 174 Ga. App. 620 (330 SE2d 769) (1985). To accept her argument for legal enforcement of the subject policies would, for the purpose of her termination, de facto transform her from an at-will employee into one under contract to the hospital, in violation of OCGA § 34-7-1.

Appellant makes a strong plea for this court to judicially alter the legislative pronouncement in OCGA § 34-7-1 because of trends in other jurisdictions and because she asserts the statute is insufficient by not providing redress for unwarranted discharges. This is a matter of public policy, within the legislative arena, and “in matters of legislation, the supreme authority is in the legislature,. . . ‘The wisdom of legislation rests in the General Assembly.’ [Cit.]” Wilson v. Bd. of Re gents, 246 Ga. 649; 650 (272 SE2d 496) (1980). Thus, there is no legal basis for the wrongful termination claim and judgment in favor of the hospital was demanded as a matter of law.

Decided July 8, 1987.

2. As to the claim of tortious interference with employment, the nurse asserts that her supervisor did not have authority on her own to discharge her.

It is true “that even though a person’s employment contract is at-will, he has a valuable contract right which may not be unlawfully interfered with by a third person. [Cit.]” Ga. Power Co., supra at 613 (2). However, if one has the authority to discharge, he cannot be such a “third person” so as to be liable for wrongful discharge, regardless of motive. Id.

Construing the evidence most favorable to the plaintiff and giving her the benefit of all favorable inferences that can be drawn from the evidence, Norton v. Ga. R. Bank & Trust, 253 Ga. 596, 603 (322 SE2d 870) (1984), we find no genuine issue of material fact regarding authority to terminate.

The nurse claims there is a material dispute as to the supervisor’s authority because, pursuant to the hospital’s policies and procedures manual, the concurrence of the personnel director and divisional vice president or president is necessary to authorize a discharge. She points to the hospital administrator’s deposition, wherein he admitted that the document was binding on the hospital and its personnel. Also, in her own deposition she stated that the hospital administrator gave her the impression that he did not learn that she had been terminated until after it occurred, and that he had expressly promised that she would not lose her job if she followed his directions regarding the scheduling dispute.

The cited deposition testimony does not support these contentions. To begin with, the hospital administrator in deposition did not aver that the hospital was bound in a situation such as the nurse’s to adhere to the subject policies and procedures manual. Additionally, the administrator, in the deposition, did not challenge the supervisor’s authority to fire the nurse but rather confirmed the supervisor’s own deposition testimony to the effect that she had authority to hire and fire within the scope of organization assigned to her. Any assurances that the hospital administrator may have made to the plaintiff regarding her employment do not alter the supervisor’s undisputed authority to have effected the termination. There could be, then, no tortious interference with the nurse’s employment.

Judgment affirmed.

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

John J. Goger, Michelle B. Rapoport, for appellant.

Rush S. Smith, Jr., John E. Hall, Jr., for appellees.


author: Pope, Judge. Deen, Presiding Judge, Banke, Presiding Judge, Beasley, Judge,

text:
    74244.
    CONYERS v. THE STATE.
    (359 SE2d 454)
   Pope, Judge.

This appeal was docketed on December 24, 1986. Defendant’s brief and enumeration of errors were due on January 13, 1987. No filing of the brief and enumeration of errors having been made, and no extension of such filing having been requested or granted, on January 20, 1987 this court ordered defendant to make the requisite filing by January 26, 1987. No filing has yet been made. Held:

1. Notwithstanding the pro se defendant’s failure to comply with the rules and an order of this court, we decline to dismiss his appeal but, instead, will make every effort to render a decision on the merits of the case. Such a procedure comports with the holding in the whole court case of DeBroux v. State, 176 Ga. App. 81 (1) (335 SE2d 170) (1985), citing Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985), as disapproving of the dismissal of a criminal defendant’s first appeal as of right. See also Johnson v. State, 182 Ga. App. 477 (1) (356 SE2d 101) (1987); Cunningham v. State, 182 Ga. App. 266 (2) (355 SE2d 762) (1987). The holding in the later panel case of Brown v. State, 179 Ga. App. 182 (1) (345 SE2d 901) (1986), is inconsistent with the holding in DeBroux and is therefore overruled.

2. We have reviewed the record on appeal and find no error.

Judgment affirmed.

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

Deen, Presiding Judge,

dissenting.

The order of January 20, 1987, clearly warned the appellant that failure to file the brief and enumeration of errors may result in the dismissal of the appeal. Because the appellant did not file any brief or enumeration of errors as ordered, this appeal may be dismissed, pursuant to Rule 14 of the Rules of the Court of Appeals.

An appellant in a criminal case may forfeit or abandon the appeal by failing to comply with the rules of appellate procedure and, in particular, an order of this court. See State v. Denson, 236 Ga. 239 (223 SE2d 640) (1976). Under circumstances almost identical to the instant case, this court has dismissed an appeal in a criminal case. Brown v. State, 179 Ga. App. 182 (345 SE2d 901) (1986); but compare DeBroux v. State, 176 Ga. App. 81 (335 SE2d 170) (1985), wherein this court noted that dismissal is not automatic. As in Brown, I believe that this appeal should be dismissed.

I must respectfully dissent. I am authorized to state that Presiding Judge Banke and Judge Beasley join in this dissent.

Banke, Presiding Judge,

dissenting.

I concur fully with Presiding Judge Deen’s dissent. This case is distinguished from Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 82) (1985), and from DeBroux v. State, 176 Ga. App. 81 (335 SE2d 170) (1985), by the fact that a dismissal of the appeal will not result in any violation of the appellant’s constitutional right to the assistance of counsel on appeal. Unlike the defendant in Evitts, the appellant in the present case is representing himself; and unlike the defendant in DeBroux, he has made no assertion nor taken any action which would suggest that his failure to employ counsel resulted from indigency or from any other disability. Under the circumstances, I can conceive of no reason why his failure to comply with the order of this court directing him to file a brief and enumeration of errors and warning him of the possible consequences of failing to do so should not be considered ground for dismissal of the appeal pursuant to Rule 14 of this court.

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

Beasley, Judge,

dissenting.

Even given the discretionary nature of the dismissal of criminal appeals under Court of Appeals Rule 14,1 fully concur with Presiding Judge Deen because the facts of the case totally warrant, if not demand, it.

Appellant had employed counsel at trial. During the sentencing phase, the trial court advised defendant regarding the procedure for an appeal bond, the right to appeal, the right to an attorney for an indigent on appeal, and the right to sentence review.

Trial counsel moved for an appeal bond and for new trial. A bond was immediately set, and appellant apparently made it. Some months thereafter, counsel was permitted to withdraw based on his motion to the effect that he was getting no response from defendant and that he had not been paid for trial nor for any appellate work.

In setting the hearing on the motion for new trial, the court advised defendant of the procedure for obtaining a court-appointed attorney for the motion and appeal, if he was indigent and did not wish to represent himself. No application was made, and subsequently the motion for new trial was denied.

Appellant chose to represent himself before this Court but has neglected or refused to pursue the appeal. Not only has he failed to comply with the rules for bringing the merits before us, but he has ignored our sua sponte order granting an extension of time to comply.

Decided July 8, 1987.

Willie Conyers, pro se.

Dupont K. Cheney, District Attorney, for appellee.

No reason being given nor appearing why this Court should itself undertake a review of the proceedings below, the appeal should be dismissed. Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985) does not construe the United States Constitution as requiring state appellate courts to search the record in criminal cases for reversible error upon the mere filing of a notice of appeal. Nor is it a wise policy to adopt. It casts the role of appellant’s advocate upon the Court itself. It increases the Court’s workload with frivolous appeals. It unnecessarily delays the finality of judgments in criminal cases. It penalizes the Rules-abiding appellants who receive a review only of the errors they enumerate.

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


text:
    74362.
    EARP v. FLETCHER.
    (359 SE2d 456)
   McMurray, Presiding Judge.

On December 20, 1984, appellee was arrested in Jacksonville, Alabama for the offense of driving under the influence of alcohol. Ap-pellee was convicted of the offense and paid a fine. Thereafter, the Department of Public Safety issued a suspension order, suspending the driver’s license of appellee. The notice of suspension was dated March 14, 1985. However, it was not mailed until March 21, 1985.

The notice of suspension was mailed to the home of appellee’s parents. (Appellee was a full-time student residing in Jacksonville, Alabama.) The notice was not delivered by the post office until March 26, 1985. In the meantime, in the early morning hours of March 26, 1985, appellee was arrested in Jacksonville, Alabama for failing to stop at a stop sign.

It appears that, upon inquiry, the Department of Public Safety informed the Jacksonville, Alabama police department that appellee’s license had been suspended. Accordingly, in addition to the failure to stop at a stop sign charge, appellee was accused of driving with a suspended license.

Appellee pleaded guilty to the failure to stop charge and not guilty to the driving with a suspended license offense. On May 5, 1985, the Municipal Court of Jacksonville, Alabama found appellee guilty of the offense of driving with a suspended license. Appellee appealed his conviction and posted a cash bond. The appeal was dismissed, however, and the bond was forfeited.

Decided July 8, 1987.

Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Cathy A. Cox, for appellant.

Archibald A. Farrar, Jr., for appellee.

In view of the Alabama conviction for driving with a suspended license, the Department of Public Safety notified appellee that his license would be suspended for an additional year. See OCGA § 40-5-121 (b). Thereupon, appellee requested, and was afforded, a departmental hearing. Upon consideration, the additional suspension period was upheld by the Department of Public Safety.

A de novo appeal was taken by appellee to the Superior Court of Chattooga County. On appeal, appellee contended he was improperly convicted of driving with a suspended license because he had not received notice of the suspension before his arrest on March 26, 1985. Thus, appellee argued, the additional suspension period was imposed erroneously. After hearing evidence, the superior court determined that in fact appellee did not receive notice that his license had been suspended until eight or ten hours after he was charged with driving with a suspended license. Thus, the superior court concluded that the additional suspension period was improper. The Department of Public Safety sought, and we granted, a discretionary appeal. Held:

It is clear that the superior court overturned the Department of Public Safety’s ruling because it determined that the Alabama conviction was invalid. This it could not do. A collateral attack on an underlying conviction which is used to support a license suspension may not be made in a de novo appeal unless the conviction is void on its face. See Hardison v. Martin, 254 Ga. 719, 722 (334 SE2d 161). Compare Cofer v. Cook, 141 Ga. App. 646 (234 SE2d 185). The driving with a suspended license conviction was not void on its face. Accordingly, the superior court erred in ruling the license suspension to be improper.

Judgment reversed.

Beasley, J., concurs. Sognier, J., concurs in the judgment only.


author: Deen, Presiding Judge.

text:
    74800.
    JACKSON v. THE STATE.
    (359 SE2d 457)
   Deen, Presiding Judge.

On May 31, 1986, a Troup County deputy sheriff arrested the appellant, Charles Jackson, for driving under the influence and driving without a license in Earl Cook Park. At the subsequent trial, the arresting officer testified that the Earl Cook Park was federal property, managed by the U. S. Army Corp of Engineers. The Sheriff’s Department had contracted with the Corp of Engineers to patrol the park areas. Following his conviction on both charges, Jackson appeals on the basis that the state court was without jurisdiction because the alleged offenses occurred on federal property.

Decided July 8, 1987.

Michael P. Katz, for appellant.

Robert B. Whatley, Solicitor, for appellee.

Under OCGA § 50-2-23, the state retains criminal jurisdiction over persons for state offenses committed on property that has been acquired by the United States, except for property used by the Department of Defense and by the Department of Justice. Even where the latter type of federal property is involved, the state retains jurisdiction unless the criminal defendant shows that the United States has accepted such jurisdiction by its filing a notice with the governor of the state in which the land is situated. Dobbins v. State, 114 Ga. App. 403 (151 SE2d 549) (1966). Assuming that Earl Cook Park is federal property used by the Department of Defense, since Jackson failed to make the requisite showing of federal acceptance of criminal jurisdiction, the trial court properly declined to dismiss the prosecution.

Judgment affirmed.

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


text:
    73729.
    PRICE v. WRIGHT CONTRACTING COMPANY.
    (359 SE2d 406)
   Beasley, Judge.

This is the third appearance in this Court of this suit for personal injuries sustained by Hattie Price in a multi-vehicle collision on a bridge approach in Albany. See Price v. Reeves Constr. Co., 181 Ga. App. 241 (351 SE2d 655) (1986); and Price v. Dept. of Transp., 182 Ga. App. 353 (356 SE2d 45) (1987). The present appeal is from the grant of summary judgment to Wright Contracting Company, which paved the roadway and installed the guardrail, curb, gutter, and drainage systems. Plaintiff alleged Wright was jointly negligent with other defendants in the construction and maintenance of the road in an extremely hazardous condition causing her injuries and damage.

The complaint alleged that in the area where Price’s vehicle left the road its condition was extremely hazardous because of the absence of guardrails or other obstructions to prevent vehicles from leaving the road and going down the steep fill on which the bridge approach was situated. Plaintiffs supplemental and amended complaint further maintained that the driver of the vehicle which struck her automobile head-on lost control of his vehicle after going over a drop-off from the bridge to the road; that the vehicle then crossed through pooled water that was in a depressed area in the road, preventing the driver from regaining control; that the drop-off from the concrete bridge and the depressed area where the water pooled were caused by Wright’s failure to adequately and properly perform the drainage work under its contract with the Georgia Department of Transportation; that the drop-off and depressed area existed from the time Wright completed its work until the collision; that Wright failed to adequately and properly perform the paving, drainage, and guardrail work so as to prevent the drop-off and/or to prevent water from pooling and/or to protect vehicles from descending the steep embankment.

In support of a motion for summary judgment, Wright submitted the affidavit of its assistant division manager at the time of the paving. He stated that Wright had contracted with DOT to perform the grading, paving, curb, gutter and guardrail work for the bridge approach but had no responsibility for placement of the fill for the approach; that Wright did not design any aspect of the bridge approach including the guardrail and did not have any input into the design of any aspect of the approach, as all design work including the plans and specifications for the project had been completed prior to solicitation of bids and was performed by engineers employed by DOT; that the company’s sole responsibility on the project was to construct the bridge approach including the guardrail consistent with those plans and specifications; that Wright was not permitted to deviate in any respect from them and DOT inspected to insure no deviation; that the plans and specifications did not call for installation of median barriers or similar devices but did call for installation of approximately 800 feet of guardrail and four guardrail anchorages, which Wright constructed and placed accordingly; that there was absolutely nothing dangerous about its installation; that following final acceptance of the project the absence of median barriers and the amount, location, and construction of the guardrail could be readily observed by anyone using the approach; that Wright had absolutely no discretion in regard to construction, location or placement of the guardrail or the absence of median barriers; that Wright performed in exact accord with the contract with DOT; that following completion of Wright’s work, DOT conducted a final construction inspection and accepted the company’s work; that Wright has had no further involvement in the design, construction or maintenance of the bridge approach including the guardrail following DOT acceptance; that Wright is a general contractor specializing in the construction of roads, bridges, airports and the grading and filling of land, but that the company has no expertise in the design of highways, roads, guardrails, median barriers or similar devices; and that by virtue of its experience in road construction at the time of letting bids for the project and performance of the job, employees of Wright were familiar with the use or lack of use of median barriers and installation of guardrail and anchorage on state highway projects such as this one and that the absence of median barriers and the amount of guardrail, its location and construction as specified in the project plans were consistent with the same on other similar highway projects in which the company had been involved. Wright also submitted the affidavit of the director of construction for DOT who confirmed the manager’s statements.

Plaintiff countered with the affidavit of the wrecker driver coming to the scene of the collision. He stated that there was no guardrail along the shoulder of the road where Price’s car went over; that the pavement of the roadway coming off the bridge was wet; that on earlier occasions he had seen rainwater pooling in a depressed area of the asphalt between where the Price wreck occurred and the concrete bridge, although on the day of the collision he was too busy to notice any pooling; that he had crossed the bridge many times before and recalled a substantial drop from the concrete bridge to the asphalt road pavement; that if a vehicle had problems, such as alignment or wheel balance, in its steering mechanism, the drop would be sufficient to cause the steering mechanism to shake; and that in his opinion, if there had been a guardrail along the shoulder, Price’s car would not have left the road. Other affidavits echoed the wet condition of the road, the drop-off from the bridge to the road, and the opinion that Price’s car would not have left the road if the guardrail had been present.

“ ‘(I)t is a well established general rule that, where the work of an independent contractor is completed, turned over to, and accepted by the owner, the contractor is not liable to third persons for damages or injuries subsequently suffered by reason of the condition of the work, even though he was negligent in carrying out the contract, at least, if the defect is not hidden but readily observable on reasonable inspection.’ [Cit.]” Price v. Reeves Constr. Co., supra at 241.

Appellant relies on exceptions to the general rule, namely, “ ‘that the contractor is liable where the work is a nuisance per se, or inherently or intrinsically dangerous’ ” or “ ‘where the work done and turned over by him is so negligently defective as to be imminently dangerous to third persons. [Cits.]’ ” PPG Indus. v. Genson, 135 Ga. App. 248, 250 (2) (217 SE2d 479) (1975). The general rule is that “ ‘when the work is finished by [the contractor] and accepted by his employer, the liability of the former generally ceases and the employer becomes answerable for damages which may thereafter accrue from the defective condition of the work. [Cits.]’ [Cit.]” Id.

Price maintains that the approach was imminently dangerous to motorists and that it would not take an expert in road design to see the danger in the approach and that despite the apparent danger, Wright failed to place guardrails along the embankment or erect a median barrier along the length of the approach. The argument as to the need for guardrail is buttressed with a report from the National Cooperative Highway Research Program discussing recognized standards for highway construction and design. There is no indication in the record that such material was ever submitted to the trial court for its consideration. Moreover, there is no showing that such were the industry standards at the time of design and construction of the road. Furthermore, in light of the evidence submitted by the contractor, the report does not show that the amount of guardrail made this road inherently or intrinsically dangerous.

Price also contends that Wright knew or should have known that median barriers were necessary and that the absence of such barriers rendered the bridge approach imminently dangerous to motorists. A further point is that the contractor’s failure to prevent the alleged drop-off and resulting pooled water rendered the approach intrinsically, inherently, and imminently dangerous to motorists. Her position is that her affidavits and photographs showing where her car left the road are sufficient circumstantial evidence to make an issue of whether or not the approach as constructed by Wright was imminently dangerous to third persons. She maintains that at the very least her evidence creates a jury question, citing Powell v. Ledbetter Bros., 251 Ga. 649 (307 SE2d 663) (1983).

In Powell, plaintiffs brought suit against Polk County, DOT, Ledbetter Brothers, the general contractors, and four private industrial corporations seeking damages to real and personal property from flooding. The basis for the suit was the alleged negligent design, construction and maintenance of certain roads and bridges over a creek in such a manner as to impede and prevent the usual run-off of water down the creek during periods of heavy rainfall. Plaintiffs alleged that as a result of the negligence their properties were repeatedly flooded and damaged and that the damage was an unlawful taking and damaging of private property for public purposes without just and adequate compensation, an unlawful trespass, and a continuing nuisance. An amended and redrafted complaint further alleged that the projects as constructed were imminently and inherently dangerous to plaintiffs’ properties. This court reversed the grant of summary judgment to the general contractors on the basis that the contractors’ evidence failed to pierce the allegations in the redrafted complaint that the construction was an inherently dangerous undertaking and that by the use of ordinary care the contractors should have foreseen the damage to plaintiffs’ properties.

Decided June 24, 1987

Rehearing denied July 9, 1987

Terry J. Marlowe, Hilliard P. Burt, for appellant.

Mark A. Gonnerman, for appellee.

A very different situation prevails here. To begin with, while Price’s pleadings did allege that the condition of the area where her vehicle left the road was extremely hazardous, she did not contend that Wright performed any of its work, paving, grading, guardrail, etc. in such a manner as to give rise to a situation which was imminently or inherently dangerous. This argument arose for the first time in opposition to the contractor’s motion for summary judgment.

What is more, the contractor’s affidavit stated that there was absolutely nothing dangerous about its installation of the guardrail and that the absence of median barriers and the amount, location and construction of the guardrail as specified in the project plans were consistent with other state highway projects with which Wright had been involved. There is no allegation or evidence that there were any prior similar incidents in that vicinity or on similar parts of the highway system which could arguably have put the contractor on notice of inherent peril in DOT’s design and specifications.

Further, the photographs merely depicted what the area looked like more than two years after the mishap and eight-and-a-half years after Wright’s . . . work was accepted by DOT. Price v. Reeves Constr. Co., supra at 242.

This state of the record eliminates any jury question on the issue of Wright’s negligence. Under the circumstances, where Wright could not be held liable as a matter of law for any alleged negligence, it was entitled to summary judgment.

Judgment affirmed.

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


text:
    73837.
    MALLEY MOTORS, INC. et al. v. DAVIS et al.
    (359 SE2d 394)
   Beasley, Judge.

Defendants appeal from the judgment in a civil jury case, listing three enumerations of error relating to two trial errors, the first of which embraces a third.

1. The first two enumerations point to error in allowing plaintiff’s counsel in the case to testify as a witness in the case-in-chief because a) he was not listed as a witness in the pretrial order and b) he is prohibited by law from acting both as the attorney and as a witness. Included here is the objection that, as a witness, he was examined by an attorney who had not entered an appearance in the case. USCR 4.2. All three objections were timely made in the trial court but only the first two are pursued here.

The attorney was not listed as a witness in the consolidated pretrial order. Had he been, of course, all of the problems related to his testifying, which were first confronted in mid-trial, could have been resolved and avoided. The order provided that it could be amended “any time prior to trial upon the showing of legal cause,” that it constituted the pretrial order, and that it “supersedes the pleadings.” It therefore substantially complies with USCR 7.2, setting the parameters for the trial. Here no reason was advanced nor given for exceeding these boundaries and contravening the purpose of the Rules, which is to “provide for the speedy, efficient, and inexpensive resolution of disputes and prosecutions.” Ga. Const. 1983, Art. VI, Sec. IX, Par. I. “We are all bound, bench and bar alike, to the spirit [here] expressed. . . .” Dugger v. Danello, 175 Ga. App. 618, 620 (334 SE2d 3) (1985). The attorney’s testimony related to the claimed surplus from the sale of plaintiffs’ auto and the demand made therefor, to the factors giving rise to the claim of stubborn litigiousness, and to the particulars of the claim for attorney fees.

We hold that in these circumstances it was an abuse of discretion to allow the unlisted witness to testify. Although there are no cases construing Rule 7.2, see in this connection Allstate Ins. Co. v. Reynolds, 138 Ga. App. 582, 587 (6) (227 SE2d 77) (1976), with respect to OCGA § 9-11-16.

2. We reach the second enumeration because simply notifying defendant that the attorney will be a witness on retrial will not resolve the issues embroiled in his role as a witness. Counsel should not have been permitted to act in both the role of a witness and the role of the plaintiff’s counsel in the case. Castell v. Kemp, 254 Ga. 556 (331 SE2d 528) (1985).

3. Over objection, the court charged the jury that punitive damages could be awarded to deter the wrongdoer from repeating the trespass. OCGA § 51-12-5. As stated in the statute, such damages are recoverable for tort actions in which there are aggravating circumstances. See generally Cobb & Eldridge, Ga. Law of Damages (2nd ed.), §§ 4-4; 4-8.

At trial, during the precharge conference, plaintiff elected to proceed on the theory of a violation of the Uniform Commercial Code, OCGA §§ 9-11-504 through 9-11-507, choosing the damages provided by OCGA § 11-9-507 rather than the damages recoverable for conversion. See OCGA § 11-9-505 (1). Plaintiffs could not have both. UIV Corp. v. Oswald, 139 Ga. App. 697 (229 SE2d 512) (1976). Thus, this tort theory was abandoned, as acknowledged by plaintiffs on appeal. As to the UCC claim, penal damages are not recoverable. OCGA § 11-1-106 (1).

Decided June 22, 1987

Rehearing denied July 9, 1987

Robert B. Silliman, for appellants.

Henry C. Johnson, Jr., for appellees.

Plaintiffs had amended their complaint to include a claim for fraud. However, it was not carried forward into the pretrial order, nor was the latter ever amended. Furthermore, the charge to the jury did not include the elements of fraud. Consequently, there was no foundation in this regard for the imposition of punitive damages either, and the charge was erroneous as no tort theory was submitted to the jury.

Judgment reversed.

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

       Reference throughout is made to Uniform Superior Court Rules because, as pertinent here, they apply to the state courts. 253 Ga. 887.


text:
    73925.
    SANDERS et al. v. HUGHES et al.
    (359 SE2d 396)
   Sognier, Judge.

Jeff and Sheila Hughes brought suit against Thomas Sanders, various members of Sanders’ family, and Barry Lewis for wrongful dispossession, trespass, conversion and theft. The jury found in favor of Lewis but returned a verdict in favor of the Hugheses for actual and exemplary damages and attorney fees against the remaining defendants. This appeal ensued.

Appellees responded to a newspaper advertisement placed by appellant Thomas Sanders (hereinafter Sanders) regarding a 1983 mobile home. The parties signed a document whereby appellees paid Sanders $1,000 as down payment for the mobile home and agreed they would continue to make monthly payments until the total amount of the mortgage on the mobile home was paid to the finance company. When appellees fell behind in their payments to the finance company, Sanders signed an affidavit for summons of dispossessory which alleged appellees had failed to pay rent and demanded $624 in past due rent. A writ of possession was subsequently issued. All the appellants participated at different times on the date in issue in entering appellees’ mobile home, removing appellees’ belongings from the home, and setting those belongings out in the street. The belongings thus dispersed were taken by numerous parties; appellees were able to regain possession of only a small percentage of their belongings;

1. Appellants claim the trial court erred by granting appellees’ motion for a directed verdict with regard to the issue of whether the document entered into by the parties was a lease agreement or a sales contract. In their brief, however, appellants concede that the agreement between the parties was a sales contract and that no landlord-tenant relationship existed between Sanders and appellees at the time of the dispossessory. See generally Leggitt v. Allen, 208 Ga. 298-299 (66 SE2d 709) (1951). Appellants’ argument that the contract was for the sale of personalty rather than realty asserts an error not contained in the enumerations of error, nor does it appear that the issue was raised before the trial court. Accordingly, nothing is presented for consideration as to this issue. Brock Constr. Co. v. Houston &c. Ins. Co., 144 Ga. App. 860, 864 (4) (243 SE2d 83) (1978).

Since the parties are in agreement that the document between the parties was a sales contract, not a lease, the trial court did not err by granting appellees’ motion for a directed verdict as to this issue. See generally Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448, 450 (224 SE2d 25) (1976). Furthermore, since the absence of a landlord-tenant relationship between the parties is uncontroverted, no question of fact exists that Sanders’ use of the dispossessory statute, OCGA § 44-7-50 et seq., was wrongful since the relationship of landlord and tenant must exist before dispossessory proceedings under the statute can be held. Crain v. Daniel, 79 Ga. App. 647, 651-653 (3) (54 SE2d 487) (1949); see Stevens v. Way, 167 Ga. App. 688, 690 (5) (307 SE2d 507) (1983). Accordingly, the trial court did not err by granting appellees’ motion for a directed verdict on this issue. See generally W. B. Anderson &c. Co. v. Ga. Gas Distrib., 164 Ga. App. 96 (296 SE2d 395) (1982). It follows that appellants’ enumeration contending error in the trial court’s failure to charge the dispossessory statutes to the jury is without merit. See generally Formica Corp. v. Rouse, 176 Ga. App. 548 (2) (336 SE2d 383) (1985).

2. Appellants allege the trial court erred by charging the jury on the issue of attorney fees. The first sentence of the charge, as contained in the trial transcript, states “[t]he expenses of litigation should not be allowed as a part of damages, but are generally allowed as a part of damages.” In the remainder of the charge, the trial court instructed the jury that expenses of litigation may be allowed under the three conditions enumerated by the trial court (encompassing the provision of OCGA § 13-6-11), that it was necessary to show one of the three conditions existed in order to recover attorney fees but that any one of the three may authorize such damages.

We can fully understand appellees’ assertion that the garbled nature of the first sentence of the charge is due to typographical and other errors in the trial transcript rather than to any statement by the trial judge. However, even assuming the transcript accurately reflects the trial court’s charge, we find the first sentence to constitute a harmless slip of the tongue that, in view of the charge as a whole, could not have led to any misunderstanding or confusion on the part of the jury. See Grasham v. Southern R. Co., 111 Ga. App. 158, 161-2 (7) (141 SE2d 189) (1965). As to appellants’ assertion that there was no evidence to support the charge, the evidence adduced at trial showed that Sanders obtained a writ of possession by swearing that appellees had failed to pay monies due him which instead were shown to be due to third parties (namely, the finance company and the lot manager of the mobile home park). The evidence further showed that Sanders, together with the other appellants, first emptied appellees’ mobile home of its belongings and then drove off taking some of ap-pellees’ belongings with them, and leaving the rest to be taken by unknown third parties. We find this evidence sufficient to support the trial court’s charge to the jury on the issue of attorney fees under OCGA § 13-6-11, particularly the bad faith section of that statute. See generally Liles v. Still, 176 Ga. App. 65, 66 (335 SE2d 168) (1985).

Appellants assert in the remaining argument included under this enumeration and in enumerations 3 and 4 that the trial court erred by charging the jury on damages pursuant to OCGA § 51-12-5 and OCGA § 51-12-6. Although we note the trial court did not give the charge on OCGA § 51-12-6 as alleged, it is not necessary to address the merits of these enumerations since the record reveals no objection was made by appellants to that portion of the charge concerning such damages. Failure to object to the trial court’s instruction to the jury before the jury returns its verdict constitutes a waiver of the right to raise the issue on appeal, OCGA § 5-5-24 (a), Nelson v. Miller, 169 Ga. App. 403, 404 (312 SE2d 867) (1984), and we find no substantial error which would require our review under the exception set forth in OCGA § 5-5-24 (c). Id.

3. Appellants enumerate as error the trial court’s denial of their motion for a directed verdict made on the basis that appellees had failed to sufficiently prove the specific damages they had suffered and that appellees were entitled only to nominal damages. OCGA § 51-12-4. A grant of directed verdict is proper only if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50 (a). Thus, the standard of appellate review of a trial court’s denial of a motion for directed verdict has always been that of the “any evidence” test. See Alexie, Inc. v. Old South Bottle Shop Corp., 179 Ga. App. 190, 192 (2) (345 SE2d 875) (1986). Appellees tendered into evidence a list of belongings taken from their mobile home and a price estimate on those items. Appellees testified that they were recently married, that the majority of their belongings were newly acquired as wedding or bridal shower gifts, some still in their original packages, and that the items had been priced by appel-lees either by contacting the gift donors or by checking the Sears cat-alogue. Appellees also testified about the condition and estimated value of their few older belongings.

Decided June 22, 1987

Rehearing denied July 9, 1987

James C. Strayhorn, for appellants.

Elliott R. Baker, for appellees.

Inasmuch as this evidence and inferences drawn therefrom did not demand a verdict for appellants, the denial of the motion for directed verdict was not error. See generally Concepts, Inc. v. Innovative Property Mgt., 180 Ga. App. 903 (1) (350 SE2d 805) (1986).

4. Appellants also present argument concerning the alleged disparity between the amount of damages proven and the verdict returned by the jury. This argument, however, was not enumerated as error. “This court has no jurisdiction to consider grounds which though argued are not enumerated as error according to OCGA § 5-6-40. [Cits.]” Sunn v. Trophy Marine, 176 Ga. App. 68, 69 (2) (334 SE2d 884) (1985). We therefore cannot entertain this argument.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


author: Carley, Judge.

text:
    74122.
    WOOD v. FOOD GIANT, INC.
    (359 SE2d 410)
   Carley, Judge.

Appellant-plaintiff filed suit, seeking damages for the injuries sustained when she was struck by a piece of machinery that was being operated by an employee of appellee-defendant. Although a jury verdict was returned in favor of appellant, she appeals from the judgment entered thereon.

1. Appellant enumerates as error the giving of a jury charge on comparative negligence.

The jury was authorized to find the following: Appellant and several others were standing next to the doors to a stockroom on appel-lee’s business premises. Appellee’s employee wished to drive the piece of machinery through the stockroom doors. The employee warned the group to look out and everyone but appellant moved out of the way. Appellant testified that she knew that the machine was coming toward her but, thinking that it would be able to pass through the doors, she was not worried. From this evidence, the jury was authorized to infer that appellant negligently stood in the way of the machine, and that her negligence, in part, caused her injuries. Accordingly, the charge on comparative negligence was correctly given. “ ‘The amount of evidence which makes (a charge on plaintiffs negligence) appropriate, and thus renders it error to refuse a timely request, need not be great. It is sufficient if there is slight evidence from which, as here, inferences of negligence can be drawn by the jury. [Cit.]’ [Cit.]” Seay v. Urban Medical Hosp., 172 Ga. App. 344, 347 (4) (323 SE2d 190) (1984).

2. Appellant enumerates as error the giving of a jury charge on the avoidance doctrine. See OCGA § 51-11-7; Parham v. Roach, 131 Ga. App. 728, 734-35 (4) (206 SE2d 686) (1974). Since the jury returned a verdict which awarded damages to appellant, it is clear that it did not apply this doctrine. Accordingly, even if erroneous, the giving of the charge was harmless. Jernigan v. Carmichael, 145 Ga. App. 560, 561 (2) (244 SE2d 92) (1978). See generally Maloy v. Dixon, 127 Ga. App. 151 (2b) (193 SE2d 19) (1972); Butler v. Anderson, 163 Ga. App. 547 (2) (295 SE2d 216) (1982).

3. The trial court’s refusal to grant appellant’s motion for new trial based on alleged juror misconduct is enumerated as error.

One instance of asserted misconduct concerns a juror who was allegedly sleeping through essential testimony. The record shows that appellant’s counsel was aware of the juror’s conduct and brought it to the attention of the trial court. The record does not, however, show that any motion for mistrial, objection, or request for curative action was ever made. “A party can not during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict and complain later. [Cits.]” Joyner v. State, 208 Ga. 435, 438 (2) (67 SE2d 221) (1951).

In another instance, a juror allegedly discussed the case with a third party while the trial was still in progress. The only evidence of the existence of such a conversation is in the form of an affidavit of one who claimed to have heard a juror discuss the case over the telephone. The affiant did not listen to the juror’s conversation and did not know what was said. Appellant has not shown any harm or prejudice resulting from the juror’s alleged actions. Absent such a showing, we cannot say that the trial court abused its discretion in denying appellant’s motion for new trial. Smith v. Blackshear, 127 Ga. App. 610 (194 SE2d 519) (1972); Bi-Lo, Inc. v. Stanciel, 148 Ga. App. 614 (251 SE2d 834) (1979).

Judgment affirmed.

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

Decided June 25, 1987

Rehearing denied July 9, 1987

L. Z. Dozier, for appellant.

Mary Mendel Katz, for appellee.


text:
    73716.
    HUFSTETLER v. INTERNATIONAL INDEMNITY COMPANY.
    (359 SE2d 399)
   Sognier, Judge.

Melissa Hufstetler, by next friend Gary Hufstetler, brought suit against International Indemnity Company seeking personal injury protection (PIP) benefits under the Georgia Motor Vehicle Accident Reparations Act, OCGA § 33-34-1 et seq. (“No-Fault Act”), plus various statutory penalties and damages. International Indemnity answered asserting as a defense Hufstetler’s failure to provide it with reasonable proof of her loss pursuant to OCGA § 33-34-6 (b); International Indemnity also counterclaimed alleging abuse of process. Huf-stetler’s PIP claim was paid within 30 days of International Indemnity’s receipt of the complaint with its accompanying documentation and after a bench trial, held on stipulated facts, a judgment was entered in favor of International Indemnity on Hufstetler’s claim for statutory penalties and damages. The trial court ordered International Indemnity’s counterclaim to be placed on the next available jury calendar. An order pursuant to OCGA § 9-11-54 (b) was entered and this appeal ensued.

Appellant was injured on September 16, 1985, while operating with permission an automobile insured by appellee. After appellee was properly notified about the accident, it sent appellant an application form regarding her PIP benefits that stated the application should be returned promptly “with any medical bills you have received to date.” On October 25, 1985, appellant submitted a filled-in application form and a demand for payment letter, including a schedule of appellant’s medical expenses itemizing treatment dates, medical facilities visited and charges incurred, as well as medication and travel expenses. However, no actual medical bills or copies thereof were enclosed. The schedule submitted by appellant’s attorney contained the request that “should you [appellee] require any other or further information please advise us immediately.” Appellee received these documents on October 30, 1985, but made no contact with appellant until February 2, 1986, when it sent a letter to appellant requesting copies of her medical bills. Appellant filed this suit a month after appellee contacted her, attaching copies of the medical bills to the complaint.

1. The parties stipulated that appellee has paid appellant the limits of the no-fault benefits to which appellant was entitled and that the sole remaining claim before the trial court was for the penalties and damages sought by appellant in her complaint. Thus, no judgment on no-fault benefits was necessary and appellant’s first enumeration of error is moot. See generally Intl. Indem. Co. v. Terrell, 178 Ga. App. 570 (1) (344 SE2d 239) (1986).

2. Appellant contends the trial court erred by ruling that her failure to provide appellee with medical bills rendered her proof of loss insufficient as a matter of law under OCGA § 33-34-6 (b), thus finding in appellee’s favor on appellant’s remaining claims for bad faith penalties and attorney fees, and punitive damages under OCGA § 33-34-6 (b) and (c). OCGA § 33-34-6 (b) provides in pertinent part: “[B]enefits are overdue if not paid within 30 days after the insurer receives reasonable proof of the fact and the amount of loss sustained. ... In the event the insurer fails to pay each benefit when due, the person entitled to the benefits may bring an action to recover them and the insurer must show that its failure or refusal to pay was in good faith, otherwise the insurer shall be liable for [penalties and attorney fees].”

OCGA § 33-34-6 (b) is silent as to what constitutes “reasonable proof of the fact and the amount of loss sustained.” In Jones v. State Farm &c. Ins. Co., 156 Ga. App. 230 (274 SE2d 623) (1980), we held that “the date on which an insurer should be deemed to have received ‘reasonable proof of the fact and the amount of loss sustained’ by its insured is that date upon which the insurer receives sufficient proof from the insured to enable the insurer to verify or disprove, through the exercise of reasonable diligence, the basic components of the insured’s claim.” (Original emphasis omitted; emphasis supplied.) Id. at 235. Thus, OCGA § 33-34-6 (b), as interpreted by Jones, does not require a claimant to submit proof of loss of such exactitude as would verify the claim in and of itself. The proof of loss submitted need only be such as would enable the insurer to verify the basic components of the claim through the exercise of reasonable diligence. Id. at 235.

The trial court, in determining as a matter of law that appellant’s proof of loss was insufficient, stressed that “[d] espite requests by [ap-pellee] for copies of medical bills, [appellant] did not supply [appel-lee] with documentation in the form of medical bills until this action was filed in March of 1986.” This determination endorses appellee’s argument that appellant’s failure to submit medical bills as requested by appellee in the application form it sent to appellant resulted in legally insufficient proof of loss under OCGA § 33-34-6 (b). Appellee’s inaction thus stemmed from the fact it considered itself absolved from any responsibility to act on appellant’s claim because appellant failed to submit proof appellee deemed necessary to substantiate a claim.

In Jones, we rejected the insurer’s argument which would have placed in the insurer the right to determine the date on which reasonable proof of loss had been received. We here reject appellee-insurer’s argument which would place in the insurer the right to determine what constitutes reasonable proof of loss. We do not agree with appel-lee that its requirement that medical bills be submitted before it is required to act on a claim is endorsed by Jones, supra: we find nothing in Jones which indicates no proof of loss is sufficient unless it is accompanied by medical bills. The court in Jones simply noted that the 30/60-day period set out in OCGA § 33-34-6 (b) was activated on the date the insurer in Jones received the claimant’s “properly completed Application for Benefits, along with the other materials enclosed in that mailing.” Id. at 235. We note that copies of medical bills were requested and submitted to the insurer in Jones subsequent to the submission by the claimant of a schedule of medical expenses and lost wages.

Accordingly, the question is not whether appellant was required to submit medical bills in her proof of loss but whether the proof of loss she did submit, absent such medical bills, was sufficient to enable appellee to verify the basic components of her claim.

Appellee claims it could not verify appellant’s claim without the medical bills attached to the proof of loss and the trial court agreed with appellee that medical bills were crucial documents required before appellee could even begin to act on appellant’s claim. We do not here mean to intimate that an insurer can never ask a claimant to supply it with medical bills or copies thereof or that such documentation is not an important part of an insurer’s inquiry into a claim. But while an insurer has a right to require a claimant to abide by the terms of its policy or application requirements, “that right is limited by the reasonableness of its exercise under the circumstances when it delays payment. . . . [T]he burden is upon the insurer to show reasonableness.” Falagian v. Leader Nat. Ins. Co., 167 Ga. App. 800, 801 (307 SE2d 698) (1983).

We need not here determine what constitutes the exercise of reasonable diligence under OCGA § 33-34-6 (b) or whether the proof of loss appellee had before it, with the names of the treating physicians, treatment dates, medical expenditures incurred, name and address of appellant, her father, her attorney, and a written statement indicating appellant’s willingness to supply any defects appellee saw in appellant’s documentation, was sufficient. We need not make any such determination because it is uncontroverted appellee took no action of any sort to verify or disprove, by any means, the basic components of appellant’s claim. Appellee failed even to contact appellant about the alleged insufficiency of her proof of loss until over 90 days had elapsed from appellee’s receipt of appellant’s proof. Compare Falagian, supra (insured notified as to insurer’s dissatisfaction with the reasonableness of proof within 30 days of insurer’s receipt of proof); Rosemond v. Prudential Property &c. Ins. Co., 170 Ga. App. 189, 190 (316 SE2d 541) (1984) (insurer telephoned insured to obtain more information about claim within 30 days of claim); Government Employees Ins. Co. v. Presley, 174 Ga. App. 562, 563-564 (330 SE2d 779) (1985) (insurer notified insured within 30 days of demand for payment that claim was pending receipt of reasonable proof).

The case sub judice is not an instance where the insurer failed to pay due to the insured’s confusing and contradictory claim. Compare Equitable Gen. Ins. Co. v. Johnson, 166 Ga. App. 215 (303 SE2d 757) (1983). Nor is it an instance in which the delay in payment within the statutory period was occasioned by an insured’s repeated refusal to comply with an insurer’s reasonable and timely requests for additional documentation of a loss. See Allstate Ins. Co. v. Torok, 168 Ga. App. 517, 518 (309 SE2d 676) (1983). The insurer here had sufficient documentation before it to know that a claim was being made, yet the evidence is undisputed the appellee took no action to verify the claim on the documents it was given by appellant or to seek out the information it needed to verify that claim. The evidence is thus uncontro-verted appellee failed to exercise reasonable diligence in any aspect of appellant’s claim. Although appellee argues that appellant should have known her proof of loss was so insufficient appellee would not act on it, we note that under certain circumstances, an implied waiver may result from an insurer’s silence and nonaction, especially where an insured’s request on a matter is ignored by the insurer leading the insured to believe nothing further is required. See Napp v. American Cas. Co., 110 Ga. App. 673, 674 (1) (139 SE2d 425) (1964); see generally Insurance Co. of the West v. Dills, 145 Ga. App. 183, 185-186 (2) (243 SE2d 549) (1978).

“[T]he clear legislative intent underlying [OCGA § 33-34-6 (b) is] to provide holders of no-fault insurance policies with a means to encourage prompt disposition of their claims.” Jones, supra at 235. We hold the trial court erred by ruling in appellee’s favor on appellant’s claim for bad faith penalties and attorney fees under OCGA § 33-34-6 (b) and punitive damages under OCGA § 33-34-6 (c). Additionally, the trial court erred by placing the burden of proof on appellant to show appellee acted in bad faith. The trial court determined that appellant did not prove “by a preponderance of the evidence that [ap-pellee’s] actions were of a character to constitute bad faith.” However, the burden of proof is not on appellant to show appellee acted in bad faith but on appellee to prove its delay in paying appellant’s claim “was attributable to [appellant’s] failure to submit reasonable proof in support of that claim rather than to bad faith on the part of the insurer [appellee].” Torok, supra at 519. Thus, the trial court im-permissibly shifted the burden of proof from appellee to appellant on the issue of good faith refusal or failure to pay. The trial court’s order is, accordingly, reversed.

Decided June 23, 1987

Rehearing denied July 10, 1987.

Scott A. Halpern, for appellant.

Michael L. Wetzel, for appellee.

3. Appellant contends the trial court erred by denying her motion to dismiss appellee’s counterclaim alleging abusive litigation. No motion to dismiss appears of record and the trial court in its order made no ruling on the counterclaim but instead ordered it placed on the next available jury trial calendar. Assuming, arguendo, a proper oral motion for involuntary dismissal was made before the trial court, the denial of such a motion would be error under Yost v. Torok, 256 Ga. 92, 96 (13) (344 SE2d 414) (1986), in view of our holding in Division 2 finding appellant’s claim to be meritorious.

Judgment reversed.

McMurray, P. J., concurs. Beasley, J., concurs in Divisions 1 and 3 and in the judgment only in Division 2.


author: Benham, Judge.

text:
    74007.
    HOLSTEIN et al. v. THE STATE.
    (359 SE2d 360)
   Benham, Judge.

Appellant John Holstein was convicted of possession of marijuana with intent to distribute, and appellant Ellen Holstein was convicted of possession of marijuana and possession of methamphetamine. On appeal, they assert as error the denial of their motion to suppress and question the evidence establishing the chain of custody of the contraband.

1. Appellants’ appeal from the denial of their motion to suppress centers around the trial court’s conclusion that Larry Hutson, the officer who applied for the search warrant pursuant to which the Holstein home was searched, was not a certified police officer. Under Georgia law, only a law enforcement officer may successfully apply for a search warrant, for OCGA § 17-5-20 provides: “A search warrant may be issued only upon the application of an officer of this state or its political subdivisions charged with the duty of enforcing the criminal laws. A search warrant shall not be issued upon the application of a private citizen. . . .” Pursuant to OCGA § 35-8-17 (a), “[a]ny peace officer . . . who does not comply with this chapter [concerning certification] shall not be authorized to exercise the powers of a law enforcement officer generally and particularly shall not be authorized to exercise the power of arrest.” Noncompliance with the conditions of OCGA Ch. 35-8, by the express terms of § 35-8-17 (a), renders the exercise of any powers of a law enforcement officer unauthorized. See Mason v. State, 147 Ga. App. 179 (7) (248 SE2d 302) (1978). A peace officer who does not comply with the conditions of certification “is thereby relegated to the status of a private citizen. . . .” Mason v. State, supra. While, as a private citizen, a non-complying officer may effect an arrest under certain circumstances (see Williams v. State, 171 Ga. App. 807 (1) (321 SE2d 386) (1984), and Mason v. State, supra), OCGA § 17-5-20 expressly forbids the issuance of a search warrant on the application of a private citizen. Due to Hutson’s lack of certification, he had no authority to apply for a search warrant, and the evidence seized pursuant to the execution of the illegal warrant should have been suppressed. See Huff v. Walker, 125 Ga. App. 251 (3) (187 SE2d 343) (1972).

Decided June 15, 1987

Rehearing denied July 10, 1987

William T. Elsey, for appellants.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

2. In light of the disposition of appellants’ initial enumerated error, we need not address the remaining alleged error.

Judgment reversed.

Banke, P. J., and Parley, J., concur.