text:
    75133.
    CHAFIN v. WESLEY HOMES, INC.
    (367 SE2d 236)
   Benham, Judge.

Appellant, acting as his mother’s guardian, filed suit against appellee, claiming it was negligent in providing care and treatment for his mother, a victim of Alzheimer’s disease. The suit also alleged appellee committed battery and breach of contract against the patient. Appellee denied the allegations and, after discovery, filed a motion for summary judgment on the negligence count. After reviewing the record and holding a hearing, the trial court granted appellee’s motion. Appellant here challenges the judgmént, which we affirm.

1. Appellant claims that the trial court erred in treating his case as a professional malpractice action rather than an ordinary negligence action and that the court erroneously construed the evidence under the rules governing such cases. We disagree.

“A professional malpractice action is merely a professional negligence action and calls into question the conduct of a professional in his area of expertise.” Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107, 110 (354 SE2d 872) (1987). If the alleged negligent act or omission of a hospital employee does not require the exercise of expert medical judgment or involve any medical questions, then it does not purport to be a “medical malpractice” action, and therefore expert medical testimony as to the standard of nursing care would be unnecessary. Id. Appellant argues in his brief that the allegations in Count 1, the negligence count of his complaint, involved only acts and omissions by nursing home personnel that “required no specific medical judgment,” and likens his case to the situation in Candler Gen. Hosp. v. McNorrill. Contrary to appellant’s assertions, all the allegations of negligence involve professional judgments by administrators, nurses, or physicians. For example, appellant alleged that appellee “at all times used a catheter to keep Plaintiff’s bladder emptied, . . . wrongfully administered the drugs Haldol and Valium to keep Plaintiff under sedation; and intravenously fed Plaintiff liquid glucose, and forced-fed liquid protein as a convenience rather than provide Plaintiff with adequate nursing care to enable Plaintiff to ingest solid food.” These allegations are not in the nature of merely “performing administrative or clerical acts requiring no medical judgment” (id. at 110) as appellant contends, but call into question the making of professional medical judgments. By contrast, in Candler Gen. Hosp., the only issue was the nurse’s decision to undertake the physical act of moving the patient from a stretcher or casting table to a wheel chair, which was “merely an act of relative physical strength and dexterity rather than an act requiring the exercise of expert medical judgment.” Id. at 110. See also Self v. Exec. Committee &c. of Ga., 245 Ga. 548 (266 SE2d 168) (1980), in which the plaintiffs suit against the hospital sounded in simple negligence based on plaintiffs husband’s suffering a fall allegedly due to a leaking bathroom fixture. Since the instant case, unlike Candler Gen. Hosp., involved the questioning of expert medical, nursing, and administrative judgments, the trial court did not err in treating it as a professional malpractice case and applying the rules appropriate thereto.

2. In support of its motion for partial summary judgment, appellee submitted affidavits from Dr. Herbert Karp, the director of medical services for appellee, and Dr. Robert W. Goldstein, the physician who treated appellant’s mother. Both doctors stated their affidavits were based on personal knowledge and that appellee met the requisite standard of care required of long-term care facilities. In response, appellant submitted an affidavit from a registered nurse who stated that appellee failed to exercise reasonable care for appellant’s mother, but who gave no specifics in that regard. While the nurse’s credentials may have qualified her as an expert to refute appellee’s affidavits from a nursing and administrative service standpoint, she was not qualified to refute the treating physician’s statements. Moreover, the nurse’s affidavit failed to address specifically the alleged shortcomings in the care provided at appellee’s facility.

In a professional malpractice case, “[an] expert’[s] opinion in opposition to the defendant’s motion for summary judgment must establish ‘the parameters of acceptable professional conduct, a significant deviation from which would constitute malpractice. [Cits.]’ . . . Appellant’s expert’s [affidavit] did not meet that requirement. Rather than setting out what should have been done and comparing that to what was done, the affidavit merely concluded that appellee[’s] treatment did not meet the appropriate standard of care. Such an affidavit, failing to establish the parameters of acceptable professional conduct, is not sufficient to carry the burden required of a plaintiff when a defendant has made a prima facie showing of entitlement to judgment. [Cits.]” Beauchamp v. Wallace, 180 Ga. App. 554, 555 (349 SE2d 791) (1986). Since appellant’s affidavit did not meet the standard set out in Beauchamp, the trial court did not err in granting appellee’s motion for summary judgment.

3. In appellant’s final enumeration of error, he contends that his obligation to provide expert testimony in this case is obviated by the “pronounced results” exception and that the trial court erred in failing to conclude that the exception was applicable. The exception applies to exceedingly rare medical malpractice cases “where the asserted actionable negligence would appear to be so clear from the evidence then of record that expert testimony would, at that point, otherwise be unnecessary to establish a prima facie case of malpractice. [Cits.]” Killingsworth v. Poon, 167 Ga. App. 653, 655 (307 SE2d 123) (1983).

Decided February 1, 1988

Rehearing denied March 17, 1988

L. David Wolfe, for appellant.

James T. Budd, Wilbur P. Brooks, for appellee.

We find no evidence in the record that the trial court was asked to consider applying the exception to this case, and so there is nothing for us to consider. “Grounds which may be considered on appeal are limited to those which were urged before the trial court. [Cits.]” Harrison v. Lawhorne, 130 Ga. App. 314 (5) (203 SE2d 292) (1973).

Judgment affirmed.

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


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    75386.
    SEARS et al. v. STINSON.
    (367 SE2d 233)
   Benham, Judge.

In January 1985, appellee filed suit in Georgia against appellants for damages, alleging wrongful foreclosure of realty and wrongful disposal of personalty. In March 1986, appellee voluntarily filed a Chapter 7 bankruptcy petition in Mississippi. The first trial in the Georgia suit was held in May 1986 and ended in a mistrial. Appellee was granted a discharge in bankruptcy in August 1986. In March 1987, the second Georgia trial was held. Appellant orally objected to appellee’s prosecuting the case in her individual capacity, claiming that she lacked standing to pursue it due to the bankruptcy. Based on its presumption that the bankruptcy trustee had at some point abandoned the course of action to appellee, the trial court denied the motion, which was later made again in writing, and appellee was eventually awarded an $8,000 judgment on her claims. Citing a number of cases from other jurisdictions, appellants argue here that the trial court erred in its denial of their motion. They take the position that appellee’s cause of action had passed to the bankruptcy trustee and the trustee never abandoned his interest in the claim because appellee had never informed him of the existence of the cause of action as an asset.

Since we find no Georgia case directly on point, we look to the record and the bankruptcy statutes for direction. On May 23, 1986, the bankruptcy trustee assigned to appellee’s case filed his “Report of No Distribution” in which he stated that he “made diligent inquiry into the whereabouts of property belonging to the estate; and that there is no property available for distribution from the estate over and above that exempted by the debtor.” On August 7, 1986, the bankruptcy court approved the trustee’s report, closed the estate, discharged the trustee, and granted appellee her discharge in bankruptcy. Appellee would not have received her discharge if a finding had been made that she had concealed property of the estate or otherwise withheld information about assets after filing her petition. Seé 11 USC § 727 (a) (2); (3); and (4). Whether the suit had been within the control of the trustee or not, that right of control ended when the bankruptcy court closed the estate, and the statute of limitation has expired for the trustee to seek revocation of the discharge, even if there had been some concealment of the suit’s existence. See 11 USC § 727 (e) (2). It was proper for appellee to pursue her own lawsuit, since the trial was held and judgment was rendered after the estate was closed. See Riddle v. MARTA, 180 Ga. App. 33 (1) (348 SE2d 483) (1986). The trial court did not err in denying appellants’ motion.

Decided January 12, 1988

Rehearing denied March 17, 1988

Ronald S. Iddins, for appellants.

Lee R. Grogan, Jr., for appellee.

Judgment affirmed.

Banke, P. J., concurs. Carley, J., concurs in judgment only.


text:
    75411.
    BLACK v. THE STATE.
    (367 SE2d 238)
   Benham, Judge.

Appellant was convicted of armed robbery. His sole enumeration of error is the admission into evidence of a 1979 robbery conviction which took place when he was 17 years old. Appellant contends that the crimes were not similar enough to render admissible the earlier conviction, and he relies upon Hudson v. State, 175 Ga. App. 878 (334 SE2d 735) (1985), to support his argument. The State argues that the similarities between the robberies, i.e., the fact that in each case a gun was used, the robberies were committed late at night while the victim was alone, the perpetrator fled by vehicle, and the scenes of the crimes were near each other on the northern Atlanta perimeter, lead one to “readily conclude” that proof of the earlier robbery tended to prove the latter one. We disagree.

Decided February 2, 1988

Rehearing denied March 17, 1988.

Donald F. Samuel, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Assistant District Attorneys, for appellee.

A closer scrutiny of the few similarities pointed out by the State reveals that in the earlier crime, appellant did not have a gun and did not actually commit the robbery, but only drove the escape vehicle after his accomplices robbed the victim, while in the later crime appellant acted alone. Moreover, the fact that there were no intervening crimes during the time between the 1978 and 1986 incidents makes it highly unlikely that the introduction of the earlier crime would show “motive, bent of mind, intent and course of conduct,” the limited purposes for which the trial court admitted the evidence. It was error to admit the evidence of the prior crime. Hudson v. State, supra, Division 2. However, the admission was harmless since the jury verdict was overwhelmingly supported by the other evidence, including the victim’s identification of appellant, his former co-worker, as his assailant. Id.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


text:
    75527.
    CRAWFORD W. LONG MEMORIAL HOSPITAL OF EMORY UNIVERSITY v. YERBY.
    (367 SE2d 245)
   Benham, Judge.

In this medical malpractice case, appellant moved the trial court to disqualify appellee’s attorney. The ground of the motion was that appellee’s counsel had a conflict of interest because he had represented appellant in numerous medical malpractice actions over the past several years. In the course of that representation, appellant contended, counsel had been given access to confidential information substantially related to the matters in the case at bar. In support of its motion, appellant offered the affidavit of its Executive Assistant Administrator. She averred that she had worked closely with appellee’s counsel during his previous representation of appellant, that she had facilitated “his access to all documents and matters which were even tangentially related to the defense of the [previous cases],” and that such “cooperation . . . resulted in his access to information regarding the interworkings of [appellant] which would not have otherwise been available to him.” In another affidavit, appellant’s general counsel averred that he, too, had worked closely with appellee’s counsel during that attorney’s representation of appellant, that they had “had long and detailed discussions . . . regarding the interworkings of the University’s medical complex [and that he had] revealed details about the University’s medical complex which would not otherwise have been available to [appellee’s counsel].”

In response to the motion, appellee filed an affidavit from her attorney in which he averred that he had never been employed by appellant, that he had only represented appellant on a case-by-case basis when assigned to do so by appellant’s liability insurance carrier, that he had never engaged in policy making with or for appellant, and that he had reviewed the records of the cases in which he had represented appellant and found no substantial relation between the issues in those cases and the present case. Appellee’s counsel’s associates also submitted affidavits detailing their former involvement, if any, in representing appellant.

Following appellee’s assertion that the present case bears no substantial relation to the previous cases in which her counsel represented appellant, appellant filed an affidavit by its general counsel listing the cases in which appellee’s counsel represented appellant. The affidavit included the style of each case and the basic allegations of negligence. The trial court denied the motion and we granted appellant’s application for interlocutory appeal.

The burden to be borne by a party seeking disqualification of opposing counsel was set out in Summerlin v. Johnson, 176 Ga. App. 336, 338 (335 SE2d 879) (1985): “The party seeking disqualification is not required to point to specific confidences revealed to his attorney that are relevant to the pending case; instead, ‘he need only show that the matters embraced within the pending suit are substantially related to the matters or cause of action wherein the attorney previously represented him.’ [Cits.]” In deciding whether that burden was met in this case, we find instructive two very persuasive federal decisions, Duncan v. Merrill Lynch, Pierce, Fenner & Smith, 646 F2d 1020 (5th Cir. 1981), quoted approvingly in Summerlin, supra, and Jackson v. J. C. Penney Co., 521 FSupp. 1032 (N.D. Ga. 1981).

“Although rigidly enforcing the ethical obligation of confidentiality, the courts have seen no need to fashion a rule that prevents an attorney from ever representing an interest adverse to that of a former client. . . . Once the former client proves that the subject matters of the present and prior representations are ‘substantially related,’ the court will irrebuttably presume that relevant confidential information was disclosed during the former period of representation. . . . However, ... a catalogue of . . . generalities offers little assistance to a court attempting to ferret out the degree of similarity, if any, between the former representation and the pending case. . . . Only when the moving party delineates with specificity the subject matters, issues, and causes of action presented in former representation can the . . . court determine if the substantial relationship test has been met. Merely pointing to a superficial resemblance between the present and prior representations will not substitute for the careful comparison demanded by our cases.” Duncan, supra at 1027-29.

Reviewing the evidence relied upon by appellant, we do not find the degree of specificity advised by Duncan. In appellant’s listing of the cases in which appellee’s attorney had represented it, there is only the general identification of the allegations of negligence, such as noting that one case “involved allegations of negligence resulting from a foreign body left in the patient,” another case involved “withholding treatment and medical care from the plaintiff on account of her drug abuse problems,” and, most generally, that another case “involved allegations of negligence . . . which resulted in the death of the patient.” Nowhere in the record is there undertaken any analysis of relationship between the present case and the prior representations, other than the fact that it is a medical malpractice case and most of the others were, too.

That approach, blanket disqualification of an attorney from a whole category of litigation involving a former client, was disapproved in Jackson v. J. C. Penney Co., supra. There, the attorney for the plaintiff in a products liability suit had previously represented the manufacturer in other products liability cases, and the defendant took much the same position taken by appellant in this case, that the attorney had gained so much information about the defendant and its operations and its methods of defense that it would be prejudiced by his representation of an adverse party. Applying the principles stated in Duncan, the court held that “[g]eneral statements of this type, however, do not constitute evidence of a substantial relationship, since the statements could be applied to virtually any law firm that had ever represented [the defendant].” Jackson v. J. C. Penney Co., supra at 1035.

“The rules of disqualification of an attorney will not be mechanically applied; rather, we should look to the facts peculiar to each case in balancing the need to ensure ethical conduct on the part of lawyers appearing before the court and other social interests, which include the litigant’s right to freely chosen counsel. [Cit.]” Stoddard v. Bd. of Tax Assessors, 173 Ga. App. 467 (1) (326 SE2d 827) (1985). Applying that rule, and considering the lessons available in Duncan and Jackson, we are unwilling to take the step appellant would urge on us, ruling that an attorney who represents a defendant in a medical malpractice case can never represent a plaintiff against that defendant in a medical malpractice case. The case-by-case analysis which has been used to the present is an adequate safeguard.

Decided March 4, 1988

Rehearing denied March 17, 1988

Gerald F. Handley, K. Scott Graham, Sidney F. Wheeler, J. M. Hudgins IV, for appellant.

Michael T. Bennett, H. A. Stephens, Jr., Hunter S. Allen, Jr., Thomas S. Carlock, E. Jane Simpson, for appellee.

“[I]n the absence of any evidence, aside from the bare assertion, that a client may be harmed or prejudiced by the current representation of its former attorney, we cannot agree . . . that such an appearance of impropriety exists here to outweigh [appellee’s] interest in being represented by [her] counsel of choice.” Stoddard, supra at 469. We find no error in the denial of appellant’s motion to disqualify appellee’s attorney.

Judgment affirmed.

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


text:
    75681.
    McNEESE v. THE STATE.
    (367 SE2d 235)
   Benham, Judge.

Appellant was convicted of burglary. He now challenges the sufficiency of the evidence, the trial court’s denial of his motion for directed verdict of acquittal, and its refusal to charge the jury on the lesser included offense of theft by taking. We affirm.

1. The testimony adduced at trial showed that at about 5:00 p.m. on a Saturday, a security guard employed to protect Fortune Mills, a business establishment, heard a noise on the second floor and found appellant inside the plant, carrying “some bags of socks up in his hands and arms.” The guard testified that the mill was closed down and that no one was supposed to be there except him; that appellant did not have authority to be on the premises, and that “[h]e tore a back door down . . . enough to run the hand through there and unfasten the chain” to gain access to the building. The guard called the police, and when he saw appellant again, he still had the socks and also had in his hand an AM-FM radio that belonged to another weekend guard. The arresting officer testified that when he pulled up at the plant and saw appellant, appellant threw the socks down and said, “I guess you’ll charge me with burglary for going in that place.” Appellant was apprehended and had in his possession 72 pairs of socks and the radio. An investigation of the building revealed that the back door had been broken open, and glass and wood particles from the door were on the floor. Appellant testified that he had been drinking at a bar; that on the way back, he found the socks in a bag by the fence along the railroad tracks near the mill; and that he was going to take the socks and sell them. He denied making the statement about burglary. The evidence was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of burglary, there being a showing of entry without authority and the intent to commit a theft. Therefore, appellant’s motion for a directed verdict of acquittal was properly denied. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); OCGA § 16-7-1; Mullinnix v. State, 177 Ga. App. 168 (338 SE2d 752) (1985).

Decided January 13, 1988

Rehearing denied March 17, 1988.

W. Davis Hentz, for appellant.

David L. Lomenick, Jr., District Attorney, McCracken K. Poston, Jr., Assistant District Attorney, for appellee.

2. Appellant excepted to the exclusion of his request for a jury charge on the lesser included offense of theft by taking and raises the issue here, citing Anglin v. State, 182 Ga. App. 635 (2) (356 SE2d 564) (1987), in support of his contention that the charge was required. We find that Anglin is distinguishable from appellant’s case in that Anglin stated “an intent to steal goods he admitted were not his” (id. at 637), whereas appellant’s testimony was that he found the bag of socks sitting by the fence near the railroad tracks, and so he took them. He denied breaking into the mill and said he didn’t remember finding or having the radio. Appellant never indicated that he thought the socks were the “property of another,” nor did he admit to having the requisite intent to steal. OCGA § 16-8-2. Under appellant’s version of what happened, he could not have been convicted of theft by taking, as some of the crime’s essential elements were missing. Appellant’s description of his actions shows that he was merely gathering abandoned property, which is not a crime. See Darden v. State, 165 Ga. App. 739, 741 (302 SE2d 425) (1983). The trial court did not err in refusing to give the charge. “A jury charge is properly refused where it is not authorized or adjusted to the evidence adduced at trial. [Cit.]” Id.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


author: McMurray, Presiding Judge.

text:
    75198.
    McNEIL et al. v. COWART et al.
    (367 SE2d 291)
   McMurray, Presiding Judge.

This action arises from a contract for the purchase and sale of corporate stock. The complaint of plaintiffs McNeil and Dawsey alleges that on September 16, 1983, they entered into an agreement with defendants C. L. Cowart, Randall Cowart, and Cowart’s Commercial Supply Company, Inc. by which they were to acquire 52 percent of the outstanding common stock of the corporate defendant. Plaintiffs’ complaint also alleged that defendant David Cowart guaranteed the performance of his co-defendants under the agreement. Plaintiffs allege that pursuant to the agreement a closing was set for October 6, 1983, at which they appeared ready, willing and able to comply with the agreement and that defendants breached the agreement by failing to deliver 52 percent of the stock of the corporate defendant. Defendants answered denying any breach of contract or indebtedness to plaintiffs alleging both as a defense and as the basis of a counterclaim, breach of contract and that they were fraudulently induced to enter into the agreement. Defendants alleged that plaintiffs, being cognizant of their relative expertise in the buying and selling of businesses, entered into the agreement “with the sole intention of stealing the business of Defendants away from them ...”

The case was tried before a jury which returned a verdict in favor of defendants in the amount of $5,672 actual damages, $1.00 exemplary damages and $1.00 attorney fees. Plaintiffs appeal. Held:

1. Plaintiffs’ first two enumerations of error contend that the trial court erred in failing to direct a verdict in favor of plaintiffs and against defendants on the claim for breach of contract asserted by plaintiffs against defendants and as to the counterclaim of defendants. By enumerations of error 5 and 6 plaintiffs contend the trial court erred in denying their motion for new trial. We find that enumerations of error 1, 2, 5 and 6 are without merit as there is evidence authorizing the jury’s verdict under the “any evidence” standard. United Fed. Savings &c. Assn. of Waycross v. Connell, 166 Ga. App. 329, 330 (1) (304 SE2d 131); Wehunt v. Wren’s Cross &c. Assn., 175 Ga. App. 70, 72 (1) (332 SE2d 368).

Fraud is of itself subtle, and slight circumstances may be sufficient to carry conviction of its existence. OCGA § 23-2-57. Joseph v. Bray, 182 Ga. App. 131, 132 (354 SE2d 878). “We are aware that proof of fraud is seldom if ever susceptible of direct proof; thus recourse to circumstantial evidence usually is required. Moreover, we acknowledge that circumstances apparently trivial or almost inconclusive when considered in conjunction may be sufficient to establish proof of fraud. Durrence v. Durrence, 224 Ga. 620 (163 SE2d 740); McGaha v. Kwon, 161 Ga. App. 216 (288 SE2d 289, 291). Likewise, we proceed under the caveat that it is a matter peculiarly within the province of a jury to determine whether the circumstances establish moral fraud. Tolar Constr. Co. v. GAF Corp., 154 Ga. App. 127 (267 SE2d 635).” Ketcham v. Franklyn Gesner Fine Paintings, 181 Ga. App. 549, 554 (353 SE2d 44).

In the case sub judice, we are confronted with a voluminous transcript of the proceedings in the trial court. While we decline to speculate in regard to the jury’s conclusions on the evidence, we do note that there was evidence sufficient to authorize conclusions as follows: The purchase price, for 52 percent of the common stock of the defendant corporation, set in the contract at issue was subject to reduction under specified circumstances. The circumstances which would reduce the purchase price included decreases in the net worth of the defendant corporation at closing or if at closing accounts payable exceeded accounts receivable. The contract also provided that plaintiffs would assume control of the defendant corporation on a date prior to the closing date. The plaintiffs were in fact on the premises and exercising managerial discretion in regard to the day-to-day decisions of the defendant corporation for a substantial period prior to the agreed closing date. While plaintiffs were on the premises several events aroused the suspicions of defendants. The events were an inaccurate inventory, the loss of a substantial number of invoices and the ordering of a quantity of goods by plaintiffs which could have impacted the purchase price of the stock by causing accounts payable to exceed accounts receivable. While the inventory was redone, the invoices found and the order cancelled as to most of the goods ordered by plaintiffs, the surrounding circumstances were sufficient to authorize a jury to conclude that collectively these events and other circumstances including a concurrent fall in the net worth of the defendant corporation reflected a conscious pattern of conduct by plaintiffs intended to reduce their purchase price for the shares of the defendant corporation. The jury was also authorized to conclude that plaintiffs had negotiated and entered the contract at issue with a view to such a scheme. As there was some evidence authorizing the jury’s verdict the trial court did not err in denying plaintiffs’ motions for directed verdict and motion for new trial.

2. The jury initially returned a verdict in favor of defendants and against plaintiffs in the amount of zero dollars actual damages, one dollar exemplary damages and $5,672 attorney fees. A polling of the jury indicated that the verdict was that of each juror. After the polling, the trial court indicated to the jury that the verdict returned was not a valid verdict, in that the law does not permit an award of exemplary damages and attorney fees where a jury finds no actual damage. The jury was then sent back to the jury room to allow them to return a valid verdict. Subsequently, a note was received from the jury requesting that the court’s charge on the verdict be re-read. The jury was returned to the courtroom where the jury foreperson in response to the trial court’s query explained that the jury was concerned with the portion of the charge on the verdict relating to actual damages. The trial court recharged that, “you cannot award exemplary damages and attorney fees if you determine that there are no actual damages.” The jury resumed their deliberations and subsequently returned a verdict in favor of defendants and against plaintiffs in the amount of $5,672 actual damages, one dollar exemplary damages and one dollar attorney fees. The jury was again polled indicating that the verdict was that of each juror.

Plaintiffs’ third and fourth enumerations of error concern the receipt of the verdict. In enumeration of error 3 plaintiffs complain that the “trial court erred in failing to ascertain, by polling, the intention of the verdict, when so requested, upon returning an invalid verdict.” As the jury was polled following each return of a verdict this enumeration apparently relates to the trial court’s refusal to further inquire whether the jury intended to award zero actual damages. However, since in a civil case it is discretionary with the trial court whether to allow the jury to be polled at all, it is not error, where the jury was in fact polled, for the trial court to refuse to ask particular questions of individual jurors. Patillo v. Thompson, 106 Ga. App. 808, 815 (7 (c)) (128 SE2d 656); Ludwig v. J. J. Newberry Co., 78 Ga. App. 871, 875 (1 (c)) (52 SE2d 485); Taylor v. Taylor, 195 Ga. 711 (9) (25 SE2d 506).

In enumeration of error 4 plaintiffs contend the trial court erred in not recharging the jury concerning its verdict that the matter was still entirely open and they could find for either side and in any amount. However, this contention was not raised at trial and will not be considered for the first time on appeal. Mathis v. Rome Tractor Co., 180 Ga. App. 426 (2) (349 SE2d 282); Chrysler Corp. v. Marinari, 182 Ga. App. 399, 403 (3) (355 SE2d 719).

3. Defendants’ witness Proctor testified that she started working for the defendant corporation in February 1983, that the defendant corporation had purchased a computer and she was hired to set it up, and that among the things she put on the computer was accounts receivable. Witness Proctor testified that she was asked to determine the number of accounts receivable which were not collected within 90 days of the date set for the closing of the purchase and sale of stock under the contract. (Under the contract the purchase price was reduced by the amount of receivables on the closing date not collected within 90 days after the closing.) Witness Proctor testified she determined that the amount of such uncollected receivables was $42,869.43.

Subsequently, plaintiffs moved to strike the testimony of defendants’ witness Proctor as to the amount of the accounts receivable. Plaintiffs’ motion was grounded on the best evidence rule and thus meritless as neither the existence nor contents of documents were in issue. Jones v. Sudduth, 162 Ga. App. 602 (292 SE2d 448); Michaels v. Kroger Co., 172 Ga. App. 280, 284 (1) (322 SE2d 903). That the witness used a computer printout while testifying to refresh her memory did not place evidence or contents of a document in issue. See OCGA § 24-9-69 and Growth Properties of Fla. v. Wallace, 168 Ga. App. 893, 899 (3) (310 SE2d 715).

Decided March 17, 1988.

Dana L. Jacket, for appellants.

John H. Moore, William R. Johnson, for appellees.

4. Finally, there was no error in the trial court’s refusing to give in charge to the jury an instruction that, “I charge you that after a contract is made, neither party to such contract can rescind it merely by giving notice to the other party of his intention to do so, without the agreement or consent of the other, but it may be rescinded with the consent of both parties.” The trial court’s charge as given adequately covered the circumstances under which a party may avoid the consummation of a contract. Additionally, the requested charge was not adjusted to the evidence in the case sub judice. The trial court did not err in refusing to give the requested charge.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


author: Benham, Judge. Banke, Presiding Judge,

text:
    75474.
    CLOUGH et al. v. LIVELY et al.
    (367 SE2d 295)
   Benham, Judge.

Officer G. S. Trust of the DeKalb County Police Department responded to an accident call and found Keith Lively, appellees’ son, semiconscious in an automobile that had left the road and struck a utility post. Lively’s eyes were closed and his head was tilted back on the headrest. The officer found a partially consumed pint of brandy and a prescription bottle on the car seat. The officer aroused Lively by calling out, and when Lively responded, Trust discovered that Lively’s speech was slurred and that he was unsteady on his feet. It also appeared that Lively was not “seriously injured.” The officer asked Lively whether he had consumed any of the contents of the prescription bottle, and Lively informed him that he had taken two pills. Feeling that Lively was intoxicated, the officer took him to appellant Shallowford Community Hospital, Inc. (Shallowford) in order that a blood sample might be taken. When they arrived at the hospital, Trust told hospital personnel that Lively might have taken medication. Mrs. Clough, a registered nurse at Shallowford, took a blood sample, checked Lively’s vital signs, and made a diagnosis of his condition. Lively was then released to Officer Trust, who took him to the DeKalb County Jail for processing. Shortly after they arrived at the jail, Lively lapsed into a coma and was taken by emergency personnel to DeKalb General Hospital, where he later died. Appellees, Lively’s parents, brought a negligence action against Officer Trust, appellants, and others for the death of their son. Appellants Clough and Shallowford Hospital moved for summary judgment, which was denied by the trial court, and this interlocutory appeal followed. We affirm the trial court’s denial of summary judgment.

1. Arguing that a professional duty of care arises only when the patient and health provider consent to that relationship, appellants contend that they were entitled to summary judgment because the record reflects that no patient-health provider relationship existed between the decedent and appellant, as decedent did not consent to an examination or treatment. See Bradley Center v. Wessner, 250 Ga. 199 (296 SE2d 693) (1982). However, our review of the record leads us to a contrary conclusion since the decedent consented to the drawing of his blood, and it is undisputed that appellant Clough, acting as an employee of appellant Shallowford, performed that task. The hospital records reflect that Clough also took the decedent’s vital signs and made a diagnosis of his condition. In her affidavit, Clough avers that her “sole involvement. . . was in complying with the written request . . . that a blood sample be taken from [the decedent].” OCGA § 40-6-392 (a) (2) insulates Clough and Shallowford from civil liability for the “medically proper obtaining of . . . blood specimens” to be used for drug/alcohol testing. There is no evidence, however, that Clough performed the tasks commensurate with obtaining a blood sample in a “medically proper” fashion.

“The burden is on the party who moves for summary judgment to produce evidence which conclusively negates the essential elements entitling the respondent to recover under any theory that may be drawn fairly from the pleadings and the evidence. [Cits.] . . . There is no duty placed upon the plaintiff to produce evidence until the defendant’s evidence pierces the plaintiff’s pleadings and demands a finding in defendant’s favor on the particular issue of fact made by the pleadings.” Fort v. Boone, 166 Ga. App. 290, 291 (304 SE2d 465) (1983). Since appellants did not carry their burden of proof they were not entitled to summary judgment, regardless of the sufficiency of appellees’ response.

2. Appellants also contend that the trial court erred in ruling that their “affidavits will not be considered totally unopposed according to OCGA § 9-11-56 (f), which authorized the Court to refuse the granting of summary judgment where the responding party cannot supply countering affidavits.” According to appellants, there were no affidavits of a party opposing the motion, and therefore, as a matter of law, the trial court should have ruled in their favor. Our review of the record shows that appellees filed an affidavit stating that their son, the decedent, would have been the only individual with personal knowledge of the circumstances and facts in this matter sufficient to oppose and rebut the affidavit of Officer Trust attached to his motion for partial summary judgment, and that they could not obtain an opposing affidavit as required by OCGA § 9-11-56 (e). The trial court apparently relied on appellees’ affidavit in rendering its decision, and we find no error in its having done so. Even though the affidavit states that it is in response to Officer Trust’s motion for summary judgment, it is still a part of the record in the case and the trial court was entitled to rely upon it in reaching its decision. This is especially true in view of the fact that appellants relied on Officer Trust’s affidavit in making their motion and thereby opened the way for appellees to rely on affidavits in response to Officer Trust’s affidavit.

To answer appellants’ argument that no purpose is served by denying their motion since the information sought by appellees will still be unavailable at trial due to Lively’s death, we reiterate the holding in Division 1 of this opinion, i.e., in order to be entitled to a grant of summary judgment appellants as movants are required to meet their burden of proof, whether appellees respond or not. Appellants did not carry sufficiently their burden, and so summary judgment was properly denied. Compare United States Fire Ins. Co. v. Cowley & Assoc., 183 Ga. App. 478 (359 SE2d 160) (1987), in which summary judgment was granted to the movant in spite of the fact that the opposing party’s best witnesses were deceased and therefore unavailable for testimony, because the movant had affirmatively negated the elements necessary to the respondent’s recovery.

Judgment affirmed.

Banke, P. J., concurs specially. Carley, J., concurs in judgment only.

Banke, Presiding Judge,

concurring specially.

It may be inferred from the hospital report that at the time appellant Clough drew the blood sample she also took the decedent’s pulse, blood pressure, and temperature, and received information that the decedent might have been taking medication. Unlike the majority, I do not find any indication on the report that a medical diagnosis was made or attempted. Rather, the report merely specifies that the decedent had been in an auto accident and that he had been brought to the hospital by the police “to have blood alcohol drawn.” However, because the decedent’s vital signs were taken and because no expert testimony was offered tending to establish that, interpreted in the context of his demeanor and the information regarding his possible drug use, his vital signs revealed no need for immediate medical treatment, I agree that the appellants failed to establish that they were entitled to summary judgment.

Decided March 17, 1988.

Robert L. Goldstucker, for appellants.

Michael R. Hauptman, Robert G. Rothstein, Wade H. Watson III, for appellees.


author: Beasley, Judge.

text:
    75583.
    BRITT v. THE STATE.
    (367 SE2d 298)
   Beasley, Judge.

The appeal is from a conviction of trafficking in cocaine, OCGA § 16-13-31 (a) (1).

1. John Norris Britt enumerates as error that the evidence was insufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Viewed in a light favoring the verdict, the evidence showed that on September 29, 1985, a one-way airline ticket was ordered at approximately 1:00 p.m. by phone in Miami for the 4:30 p.m. flight to Atlanta. At 2:30, defendant, accompanied by an unidentified man, arrived at the airline counter and paid cash for the ticket issued in the name “J. Britt.” Defendant declined to check any luggage but inquired how late he could check bags. He was asked again if he was checking luggage and became flustered, stating that he was just asking for future reference.

Shortly thereafter the agent, who was not waiting on any customers, saw defendant approach a busy agent and check a suitcase. Because of the cash purchase, the city of departure, and the method of checking the bag, the agent was concerned that defendant might be a hijacker. She called a security agent, who was also taking the Atlanta flight, and so advised him. He checked to make sure defendant boarded the plane and spoke to him concerning his bag. He looked at the claim check and memorized the number.

Upon arrival in Atlanta at 6:15, the security agent identified the bag by the claim check number. Because of his suspicions, Sgt. Selph was called. He was a Henry County Sheriff’s deputy who was a member of the DEA Task Force assigned to Atlanta Airport. Selph arrived at 7:00. The bag, not having been claimed, was pulled and the name tag examined. It bore the name “Deborah Scott,” a name not listed on that flight’s passenger register. The airline agents opened the bag and found items of men’s clothing, a shaving product, and a paper bag stuffed in a tennis shoe containing white powder, 50.8 grams of 89 percent pure cocaine hydrochloride.

James Way, indicted with defendant but not tried, was a friend and neighbor asked by defendant that night to go to the airport with him to pick up a bag. Defendant told him the bag had arrived late on a different flight and could be identified by the tag in Ms. Scott’s name. Ms. Scott was visiting defendant from New Jersey. Way went in with the claim check and defendant’s ticket and was arrested. He tried on men’s clothing and shoes from the suitcase but they did not fit. Defendant was arrested outside in a car rented in the name of Ms. Scott. The keys to the suitcase were on the car key chain. The clothes appeared to fit him.

Defendant argues that the evidence was insufficient to prove he was in “actual and knowing possession” of the cocaine as required by OCGA § 16-13-31 (a) (1), that the evidence was circumstantial and did not exclude the hypothesis that Ms. Scott alone was responsible. The indictment charged defendant in the conjunctive with bringing into this state over 28 grams of cocaine and with being in actual possession of over 28 grams.

The evidence is sufficient. Jackson, supra; Wilson v. State, 179 Ga. App. 780, 782 (2) (347 SE2d 709) (1986); Evans v. State, 167 Ga. App. 396 (1) (306 SE2d 691) (1983); Flournoy v. State, 106 Ga. App. 756, 757 (128 SE2d 528) (1962).

2. Defendant claims his motion for directed verdict should have been granted because of a fatal difference in the allegata and the probata, the indictment charging him with trafficking in cocaine, while the proof was that the powder was cocaine hydrochloride.

There was evidence that cocaine hydrochloride is a salt of cocaine. OCGA § 16-13-31 (a) (1) prohibits the delivery, bringing into the state, or possession of “cocaine, as described in Schedule II.” OCGA § 16-13-26 provides “The controlled substances listed in this Code section are included in Schedule II: . . . (1) (D) Coca leaves, any salt, compound, derivative, stereoisomers of cocaine, or preparation of coca leaves, and any salt, compound, derivative, stereoisomers of cocaine, . . .”

Since the description of cocaine includes salt of cocaine, there was no variance.

3. Defendant’s remaining two enumerations deal with the denial of his motion to suppress. First, he contends that his motion should have been granted on the ground that Officer Selph was not an authorized Clayton County officer or federal marshal at the time of the search and seizure. This issue has been decided adversely to defendant in State v. Giangregorio, 181 Ga. App. 324 (352 SE2d 193) (1986).

The motion filed below sought to suppress the contents of the suitcase on the grounds that there was no probable cause for the search and no consent of the owner. Defendant cited both the federal Fourth Amendment and the corresponding Georgia provision, Ga. Const., Art. I, Sec. I, Par. XIII, against unlawful search and seizure. Only the federal protection is pursued, so we will not address the state constitutional ground. MacDonald v. MacDonald, 156 Ga. App. 565, 566 (1) (a) (275 SE2d 142) (1980). The Fourth Amendment protection and that afforded by the exclusionary rule are against invasions of the protected expectations of privacy by state action, and, with regard to the exclusionary rule, state law enforcement action. State v. Young, 234 Ga. 488, 489 (1) (216 SE2d 586) (1975) cert. denied, 423 U. S. 1039.

The evidence presented at the hearing, in addition to that set out above, was that after Selph arrived at the airport and was shown the bag, he told the Air Atlanta agents to handle the suitcase as they normally would in that situation. The Air Atlanta agents opened the bag and found the cocaine in a sack stuck in a tennis shoe. They turned the cocaine and bag over to Selph.

Defendant argues that this was, in fact, a search instigated by the officer and therefore had to be supported by probable cause or consent. The trial court found that the search was conducted by private individuals, the Air Atlanta agents, without the encouragement of Selph. On appeal, the trial court’s ruling on disputed facts and credibility must be accepted unless clearly erroneous. Hill v. State, 183 Ga. App. 654, 656 (2) (360 SE2d 4) (1987). These findings were not. Searches and seizures by private individuals, even if unreasonable, are not prohibited by the Fourth Amendment, absent a showing that the private individual acted as an instrument or agent of the government. Coolidge v. New Hampshire, 403 U. S. 443, 487-490 (91 SC 2022, 29 LE2d 564) (1971); McSweeney v. State, 183 Ga. App. 1, 2 (1) (358 SE2d 465) (1987); Morton v. State, 181 Ga. App. 781, 783 (2) (353 SE2d 852) (1987); Marks v. State, 174 Ga. App. 711, 714 (1) (330 SE2d 900) (1985).

There appears to be a further impediment to defendant’s argument in that he has failed to show the requisite standing to invoke the federal constitutional protection. Defendant must show that the article or premises searched were, his or that his own Fourth Amendment rights have been infringed in some manner. Bloodworth v. State, 233 Ga. 589, 590 (2) (212 SE2d 774) (1975); Sanders v. State, 181 Ga. App. 117, 118-119 (1) (351 SE2d 666) (1986). While in his motion defendant argued that the suitcase was his, the evidence was that it was not and that it appeared to have been abandoned. Either defeats defendant’s motion. Buttrum v. State, 249 Ga. 652, 653 (2) (293 SE2d 334) (1982) cert. denied, 460 U. S. 1048; Sanders, supra.

Defendant further urges that the subsequent seizure by the agent after the search by the Air Atlanta agents was improper because he was not a Clayton County officer. This ground, however, was not presented to the trial court in the motion or the amendment to it and will not be considered for the first time on appeal. Hill, supra at 657 (4). The illegality as to Selph’s authority argued in the motion went to defendant’s arrest and is not presented here. It also assumed that the bag was searched after defendant’s arrest, which was not accurate.

Decided March 17, 1988.

Keith C. Martin, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticher, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., concurs. Sognier, J., concurs in the judgment only.


author: Pope, Judge.

text:
    76059.
    THOMPSON v. THE STATE.
    (367 SE2d 586)
   Pope, Judge.

Defendant Aaron Thompson brings this appeal from his conviction and sentence of armed robbery.

1. Defendant first challenges the sufficiency of the evidence and argues that his conviction was based solely on the uncorroborated testimony of an alleged accomplice, who was indicted along with defendant for the crime charged but pled guilty at trial following the selection of the jury. “ ‘In Georgia the testimony of an accomplice used to convict the accused of a crime must be supported by independent corroborating evidence as to the identity and participation of the accused tending to connect him to the crime or leading to the inference that he is guilty.’ Eubanks v. State, 240 Ga. 544, 545 (242 SE2d 41) (1978). The necessary corroboration may be by circumstantial evidence. Blalock v. State, 250 Ga. 441, 443 (4) (298 SE2d 477) (1983). Slight corroboration of the evidence is sufficient. Bryant v. State, 179 Ga. App. 653 (347 SE2d 301) (1986).” Lecounte v. State, 183 Ga. App. 407 (359 SE2d 193) (1987); McCoy v. State, 185 Ga. App. 221 (2) (363 SE2d 628) (1987).

In the present case, the accomplice testified that he arrived in Georgia from New York on October 11, 1986, to visit the defendant, a distant relative. He testified that he and the defendant then traveled, via the defendant’s car, to Glennville, Georgia in order to rob a convenience store. The accomplice further testified that he actually entered the convenience store and committed the robbery while defendant waited in his car on a dirt road near the store for him to return, whereupon they both fled. The accomplice identified this road from an aerial photograph.

In corroboration of this testimony, the State offered the testimony of an agent with the Georgia Bureau of Investigation who testified that he examined the area surrounding the store, and that he found footprints and tire tracks, on a hard-packed dirt road approximately one-eighth of a mile from the store; he further testified that his examination revealed these tire tracks to be of the same design or pattern as the tires on the defendant’s car, and that the tracks were “consistent with” the defendant’s tires. The agent also testified, however, that he could not definitely state that the defendant’s car made the tracks in question. We find this corroborating evidence, albeit slight, tended to prove defendant’s identity and participation in the crime charged and thus was sufficient as a matter of law. Accord, e.g., Smith v. State, 245 Ga. 205 (2) (264 SE2d 15) (1980); Gunter v. State, 243 Ga. 651 (2) (256 SE2d 341) (1979); Buxton v. State, 186 Ga. App. 399 (367 SE2d 286) (1988); Harris v. State, 165 Ga. App. 186 (299 SE2d 393) (1983). We further find that any rational trier of fact could have found defendant guilty of the offense of armed robbery beyond a reasonable doubt.

2. Defendant also argues that the trial court erred in allowing the i State to present evidence of similar transactions because notice of the intent to introduce such evidence was not timely given pursuant to Uniform Superior Court Rule 31.1. “Although Rule 31.1 requires the notice to be filed at least 10 days before trial, it also provides the time may be either shortened or lengthened by the judge. See Carter v. State, 177 Ga. App. 647, 648 (1) (340 SE2d 622) (1986). We interpret this as clothing the trial court with discretion which will not be controlled absent abuse.” Hall v. State, 181 Ga. App. 92, 93 (351 SE2d 236) (1986). The transcript in the case at bar shows that the State explained that the required notice was not timely mailed due to “clerical error,” and further stated that defense counsel was orally informed of the State’s intent to introduce such evidence five days prior to trial, and that written notice was provided to defendant the following day. The trial court found the five days’ notice sufficient under the facts of this case and noted that “[cjounsel and the [defendant] certainly knew or should have known beyond a shadow of a doubt that the two offenses being almost identical ... as alleged in the indictment . . . would be introduced as a similar offense,” and thus found that neither defendant nor his counsel had been prejudiced by the shortened time period in the case at bar.

In Devane v. State, 183 Ga. App. 60 (2a) (357 SE2d 819) (1987), we noted that “[t]his Court has adopted as its primary consideration whether defendant was deprived of any substantial rights under the circumstances. Stewart v. State, 180 Ga. App. 266, 267 (349 SE2d 18) (1986). [Cit.] [In this regard we have also] noted ‘that the apparent purpose of the rule is to provide a criminal defendant with fair and adequate notice of the State’s intention to utilize evidence of prior similar transactions so that questions as to the admissibility of such evidence can be resolved before trial.’ The purpose of the length of the advance notice is to allow defendant the opportunity to investigate the validity, relevancy, and other aspects of admissibility of the prior offenses, which purpose was served here by the recency of the [defendant’s conviction for the other armed robberies] and the same counsel’s participation [in the previous trial]. . . . [Therefore, and] considering all the factors in this case, plus the burden on defendant as appellant to establish not only error but harmful error, [cit.], we find no basis for reversal of defendant’s [conviction on this ground.] See also Richardson v. State, 182 Ga. App. 661 (356 SE2d 725) (1987).” (Indention omitted.) Devane, supra at 62. See, e.g., Roman v. State, 185 Ga. App. 32 (1) (363 SE2d 329) (1987); Sweatman v. State, 181 Ga. App. 474 (1) (352 SE2d 796) (1987); Durham v. State, 181 Ga. App. 155 (2) (351 SE2d 683) (1986); Hall, supra at (1b).

Decided March 17, 1988.

Joseph C. Kitchings, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    76118.
    HENRY v. BARFIELD et al.
    (367 SE2d 289)
   Pope, Judge.

Plaintiffs/appellees brought this medical malpractice action alleging negligence in the death of their infant son on the part of four physicians including defendant Waights G. Henry III. Defendant Henry moved for summary judgment on the ground that he is exempt from civil liability as a “Good Samaritan” pursuant to OCGA § 51-1-29. We granted this interlocutory appeal from the trial court’s denial of Henry’s motion.

1. In pertinent part OCGA § 51-1-29 provides: “Any person, including any person licensed to practice medicine and surgery . . . who in good faith renders emergency care at the scene of an accident or emergency to the victim or victims thereof without making any charge therefor shall not be liable for any civil damages as a result of any act or omission by such person in rendering emergency care or as a result of any act or failure to act to provide or arrange for further medical treatment or care for the injured person.” This court recently took the opportunity to address the nature of our “Good Samaritan” statute and found the basic premise of the statute is “to induce voluntary rescue by removing the fear of potential liability which acts as an impediment to such rescue. Thus they are directed at persons who are not under some pre-existing duty to rescue. If the doctor had a particular employment duty to aid the patient at the hospital or had a preexisting doctor-patient relationship to the patient he aided, then he had a duty to the patient to begin with; and in such a case he does not need a special inducement to offer aid, the aid he offers is not ‘voluntary’ in the sense of a Good Samaritan, and public policy would be ill-served if he were relieved of the usual physician’s duty of care and given immunity in such a case. Good Samaritan statutes are directed at persons, including physicians, who by chance and on an irregular basis come upon or are called upon to render emergency care. The fact that a physician is skilled in the subject matter in question or that the exigency lies within his expertise, does not create a duty where none existed before; in fact such persons are particularly encouraged by the statute to volunteer their aid. Neither is he deprived of immunity by the fact alone that he works at the hospital, or is present at the hospital, or is called to the hospital when the emergency arises. If there was no prior duty to respond and there was no prior doctor-patient relationship, one is not created by the event of the emergency. But clearly the occurrence of an emergency will not invoke the immunity, if it was the doctor’s duty to respond to the emergency.” (Citations and indentions omitted.) Clayton v. Kelly, 183 Ga. App. 45, 47 (357 SE2d 865) (1987).

In his affidavit in support of his motion, Henry stated that he is a licensed physician with a specialty in the practice of general surgery. He continued: “The only occasion upon which I saw the deceased . . . was on June 9, 1985 at Kennestone Hospital. On that date, I responded to an emergency call which was directed to me as the only available surgeon present in the hospital. It was my understanding that emergency medical treatment was needed. Upon my arrival at the scene, the deceased had extubated himself and required emergency care in order to sustain life. In good faith I rendered emergency care . . . [but] despite my best efforts, the infant died. I did not at any time expect compensation for my services, nor did I ever charge or receive payment for my emergency medical care.”

“On a motion for summary judgment, regardless of which party has the burden of proof at trial, the burden is on the party moving for summary judgment to show that there is no genuine issue of material fact, and all evidence adduced on the motion is to be construed most strongly against the movant. [Cits.] Moreover, where the evidence on summary judgment is ambiguous or doubtful, the party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that can be drawn from the evidence. [Cits.]” Fiumefreddo v. Scudder, 252 Ga. 279, 282-283 (313 SE2d 683) (1984). Thus, the burden of proof was on defendant Henry to establish a prima facie case in support of his “Good Samaritan” defense. Cf. Bradbury v. Writing Sales, 174 Ga. App. 510 (1) (330 SE2d 438) (1985); Atlanta Cutlery Corp. v. Queen Cutlery Co., 168 Ga. App. 584 (309 SE2d 691) (1983).

Decided March 17, 1988.

Hunter S. Allen, Jr., Dennis A. Elíseo, E. Jane Simpson, for appellant.

Herbert B. Zachry, Lynn A. Downey, Robert D. McCallum, Jr., Geoffrey H. Cederholm III, for appellees.

It is clear that defendant Henry’s affidavit addresses most of the issues necessary to establish his “Good Samaritan” defense. However, the evidence of record falls short of establishing his status as a volunteer who was not under some pre-existing duty to render assistance. Indeed, in addition to Henry’s affidavit, counsel for Henry stated during argument on the motion that Henry was “on the staff at Kennestone Hospital,” but it was counsel’s “understanding” that Henry was not “on call” at the time. A question of fact remains as to this material issue, and the trial court properly denied Henry’s motion for summary judgment. See, e.g., Hollingsworth v. Ga. Osteopathic Hosp., 145 Ga. App. 870 (245 SE2d 60), aff’d, 242 Ga. 522 (250 SE2d 433) (1978); see also 1972 Op. Att’y Gen. U72-62.

2. In light of our holding in Division 1, supra, Henry’s remaining enumeration of error challenging the trial court’s refusal to strike plaintiffs’ expert’s affidavit is moot. See Skinner v. Coleman-Nincic Urology Clinic, 156 Ga. App. 638 (1) (275 SE2d 724) (1980).

Judgment affirmed.

Benham, J., concurs. McMurray, P. J., concurs in judgment only.


author: Sognier, Judge. Beasley, Judge,

text:
    75227.
    STRICKLAND v. AMERICAN HOME ASSURANCE COMPANY.
    (367 SE2d 241)
   Sognier, Judge.

Angela Strickland appeals from the trial court’s grant of partial summary judgment in favor of American Home Assurance Company on her claim for penalties, attorney fees and punitive damages pursuant to OCGA § 33-34-6 in her suit to recover benefits under an automobile insurance policy.

The record reveals that appellant subsequent to her December 17, 1985 accident, contacted Parker-Kaufman Realtors and Insurers (Parker-Kaufman) in mid-January to pursue benefits under the automobile policy issued to her by appellee. As the result of various delays, appellee was not contacted until February 19, 1986, when it received a document captioned “Loss Notice” setting forth a brief description of the accident and copies of three medical bills for emergency and radiological services rendered appellant which were referenced in the loss notice. In response, appellee mailed appellant an application for benefits form which appellant completed and, along with several other medical bills, returned to appellee. This application form also contained a claim for lost wages. Appellee received the form and attachments on March 14, 1986. Appellant was recompensed for the three original medical bills, along with the March 14th bills, on April 2, 1986. Subsequently submitted medical bills were paid in a timely manner. No payment was made on appellant’s claim for lost wages, however, because during the 30-day period after receiving appellant’s application containing the claim, appellee’s adjuster handling the claim was informed by appellant’s former employer that appellant had voluntarily left her job stating she had no way to get to work and that she intended to pursue her schooling. The adjuster was also informed that appellant had filed for unemployment benefits shortly after leaving her job, eligibility for which is dependent on the individual’s showing that she is able to work, is available for work, and is actively and in good faith seeking employment. OCGA § 34-8-151 (3). Based on this information and other discrepancies regarding the dates appellant claimed she was unable to work after the accident, appellee refused appellant’s claim for lost wages.

OCGA § 33-34-6 provides, in pertinent part: “(b) Benefits required to be paid without regard to fault shall be payable monthly as loss accrues. The benefits are overdue if not paid within 30 days after the insurer receives reasonable proof of the fact and the amount of loss sustained. If reasonable proof is not supplied as to the entire claim, the amount supported by reasonable proof is overdue if not paid within 30 days after proof is received by the insurer .... 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 a penalty not exceeding 25 percent of the amount due and reasonable attorney’s fees, (c) In addition to all other penalties provided for in this Code section, in the event that an insurer fails or refuses to pay a person the benefits which the person is entitled to under this chapter within 60 days after proper proof of loss has been filed, the person may bring an action to recover the benefits; and, if the insurer fails to prove that its failure or refusal to pay the benefits was in good faith, the insurer shall be subject to punitive damages.”

Appellant’s first argument to support her contention that the trial court erred by granting partial summary judgment to appellee is that her notice to Parker-Kaufman constituted notice to appellee, thereby triggering the statutory time period. Although “ ‘[t]he existence of an agency and the extent of the agent’s authority are generally questions for the trier of fact,’ [cit.],” Allstate Ins. Co. v. O’Brien, 172 Ga. App. 693, 694 (1) (324 SE2d 498) (1984), appellant presented no evidence to rebut testimony by Parker-Kaufman’s president that no such agency existed between Parker-Kaufman and appellee so that notice to Parker-Kaufman of appellant’s claim would constitute notice to appellee. Indeed, appellant’s own deposition testimony bears out appellee’s assertion that it first received notice of appellant’s claim in mid-February, specifically, the February 19th loss notice. Thus, this argument is without merit and we turn to appellant’s remaining assertions.

In regard to appellant’s claim for lost wages, it is uncontroverted no such claim was included in the February 19th loss notice and that the first notice appellee received for . such benefits was in the March 14th application. The record also discloses uncontrovertedly that the information appellee acquired from appellant’s former employer within 30 days of receipt of the claim for lost wages contained serious discrepancies which formed the basis for appellee’s refusal to pay the claim. Although appellant asserted in her deposition that her former employer lied to appellee’s adjuster, appellee and its employees had no independent knowledge of the veracity either of appellant or of her former employer. We note that the factual issues involved in the resolution of appellant’s claim form the subject matter of the case now pending in the trial court. While ordinarily the question of the insurer’s good faith or lack thereof is one of fact for the jury, where there is no evidence of bad faith and/or where the evidence on the issue of liability is so close as to demand a finding of good faith, the issue can be decided as a matter of law. See Ga. Farm &c. Ins. Co. v. Matthews, 149 Ga. App. 350, 352-353 (254 SE2d 413) (1979). Our review of the record supports the trial court’s grant of partial summary judgment to appellee on appellant’s claim for penalties, attorney fees and punitive damages as to the issue of lost wages.

In regard to appellant’s claim for medical bills, the record is likewise clear that appellant received payment within 30 days for all medical bills submitted to appellee except the three bills accompanying the February 19th loss notice. “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. [Cit.]” Hufstetler v. Intl. Indem. Co., 183 Ga. App. 606, 607 (2) (359 SE2d 399) (1987).

The evidence in the case sub judice shows that on February 19th appellee received information setting forth the facts of appellant’s accident and the amount of loss she sustained as evidenced by the three medical bills which contained the addresses of those rendering service to appellant. Since we do not agree with appellee that it has conclusively demonstrated its good faith merely by showing that it mailed an application form for no-fault benefits to appellant after receiving the February 19th loss notice, we agree with appellant that a question of fact remains whether the information appellee received in the February 19th loss notice was sufficient to enable appellee to verify or disprove the basic components of appellant’s claim and whether the mailing of the application form constituted an exercise of reasonable diligence sufficient to show the insurer’s good faith. Thus, the trial court erred by granting partial summary judgment in favor of appellee as to appellant’s claim for attorney fees and penalty provided by OCGA § 33-34-6 (b) insofar as her claim for the three February 19th medical bills is concerned. However, even assuming, arguendo, that the February 19th loss notice was sufficient proof, since the record reveals appellant received payment for the three February 19th medical bills within 60 days after appellee received that notice, no question of fact exists that appellant is not entitled to punitive damages under OCGA § 33-34-6 (c).

In summary, the trial court’s order affirmed except as to that part regarding appellant’s claim for OCGA § 33-34-6 (b) penalties and attorney fees solely as to the three February 19th medical bills, as to which a genuine question of material fact remains for determination by a fact finder. See State Farm Mut. &c. Ins. Co. v. Acheson, 182 Ga. App. 218, 220 (355 SE2d 128) (1987).

Judgment affirmed in part and reversed in part.

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

Beasley, Judge,

concurring in part and dissenting in part.

I respectfully dissent in part because the law which the majority applies supports the trial court’s order in its entirety.

The three medical bills about which I depart from the majority opinion were received by the insurer on February 19 attached to a standard loss notice accord form signed by the insurance producer’s representative. Two days later insurer’s claims adjuster contacted claimant and sent to her a benefit application form and, as it related to the medical bills, attending physicians’ report forms for her to take to the treating physicians. This was requested as proof that the medical bills were for treatment related to the auto collision. The application and medical bill verification were received back by insurer on March 14, and payment was made on April 7, less than thirty days later.

Decided March 3, 1988

Rehearings denied March 18, 1988

W. Douglas Adams, for appellant.

The majority relies on the statutory test as it is refined and explained in the quotation from Hufstetler v. Intl. Indem. Co., 183 Ga. App. 606, 607 (2) (359 SE2d 399) (1987), a case which as to Division 2 is physical precedent only. Rule 35 (b). I agree that its framing of the test is proper, however. Applying it here, the trial court correctly concluded that “sufficient proof” of claimant’s entitlement to payment for the three medical bills was not received until March 14. The mere submission of bills, by themselves and unsupported by anything showing their purported validity and relationship to the covered incident, and without a benefit application signed by claimant, would not trigger the insurer’s obligation to pay claimant for them within thirty days. Such a rule would leave wide open the door for fraudulent claims by compelling payment without adequate proof in order to avoid penalty and fees.

The application containing pertinent information and the simple proof of loss requested by the insurer from the providers of service through claimant, was reasonable as a matter of law. This is so because it did not exceed that which the insurer is permitted to request from the insured in order “to enable [it] to verify or disprove, through the exercise of reasonable diligence, the basic components of the insured’s claim.” Jones v. State Farm &c. Ins. Co., 156 Ga. App. 230, 235 (2) (274 SE2d 623) (1980), overruled on other grounds, Atlanta Cas. Co. v. Flewellen, 164 Ga. App. 885 (300 SE2d 166) (1982). See Canal Ins. Co. v. Henderson, 183 Ga. App. 880, 882 (1) (360 SE2d 435) (1987); Waco Fire & Cas. Ins. Co. v. Goudeau, 178 Ga. App. 426, 428 (343 SE2d 131) (1986). Promptly sending the application form and physician report forms to claimant constituted action to verify the bills and their recoverability.

In all other respects, I concur in the opinion.

I am authorized to state that Presiding Judge Banke and Judge Pope join in this opinion.

John E. Bumgartner, for appellee.