text:
    A96A2481.
    RAY v. AMERICAN LEGION AUXILIARY.
    (481 SE2d 266)
   Blackburn, Judge.

Joyce Ray appeals from the trial court’s grant of summary judgment in favor of American Legion Auxiliary (Auxiliary) in her defamation suit. Ray alleges that at the Auxiliary’s statewide convention in 1992, she was slandered by two individual Auxiliary members, Frances Allen and Lell Young. At the time of the incident, Ray was both an Auxiliary member and president of a local Auxiliary chapter. Following the meeting at which Ray alleges she was slandered, she was banned from membership in the Auxiliary, and the charter for the chapter of which she was president was revoked. For the reasons set forth below, the trial court did not err in granting summary judgment to the Auxiliary.

To prevail on a motion for summary judgment, “the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Lau's Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The evidence viewed in the light most favorable to Ray is that in 1991, while she was president, her Auxiliary chapter, unit 216, began experiencing financial difficulties. According to Ray, when unit 216’s taxes went into arrears, she sold unit property and cashed out the unit’s bank account in order to satisfy the tax obligation. Ray conceded that when she sold the unit’s property, she did so without permission.

Disputes soon arose in the unit regarding its future and Ray’s leadership, and as a result of the turmoil which ensued, the Auxiliary received a written request from a companion organization, the American Legion, to revoke the unit’s charter. Consequently, at the Auxiliary’s statewide convention, Ray and unit 216 were discussed at a department executive committee meeting. Ray alleges that at this meeting, which she did not attend, Allen slandered her by stating that Ray had “done away with” $32,000 of unit money which could not be accounted for, and that Young slandered her by calling her a “troublemaker” who took property. Ray argues that the Auxiliary is liable for these allegedly slanderous comments because, when the comments were made, Allen and Young were statewide Auxiliary officers.

“A corporation will not be liable for any slander uttered by an officer, even though he be acting honestly for the benefit of the company and within the scope of his duties, unless it can be proved that the corporation expressly ordered and directed that officer to say those very words: for a slander is the voluntary and tortious act of the speaker. As a corporation can act only by or through its agents, and as there can be no agency to slander, it follows that a corporation cannot be guilty of slander; it has not the capacity for committing that wrong. If an officer or an agent be guilty of slander, he is personally liable, and no liability results to the corporation.” (Citations and punctuation omitted.) Yarbray v. Southern Bell Tel. &c. Co., 197 Ga. App. 846, 851 (3) (399 SE2d 718) (1990), aff’d in part and rev’d in part on other grounds, 261 Ga. 703 (409 SE2d 835) (1991). It is undisputed that the Auxiliary is a corporation.

In support of its motion for summary judgment, the Auxiliary presented the affidavits of Allen and Young. Both women denied making the statements attributed to them and swore that they were not authorized, directed, or required by the Auxiliary to make any slanderous or defamatory remarks about Ray. The affidavit of Lula Smith, the Auxiliary president, was also presented in support of the motion, and Smith also denied that Allen and Young made the statements attributed to them. Smith swore that neither she nor any other agent of the Auxiliary authorized, directed, or required Allen and Young to make any slanderous remarks concerning Ray.

In response to these affidavits, Ray pointed to no evidence that the Auxiliary expressly directed Allen and Young to slander her, as she was required to do under the standard of Lau’s Corp., supra. Although Ray argues that the Auxiliary must have directed Allen’s and Young’s actions because the statements were made at a corporate meeting, in light of the uncontradicted affidavit testimony to the contrary, this supposition is insufficient to give rise to a genuine issue of material fact. See Chambers v. Gap Stores, 180 Ga. App. 233, 234 (348 SE2d 592) (1986) (appellant’s “belief” that corporation approved allegedly slanderous statements made by its agents “presents nothing of probative value for consideration on motion for summary judgment”). Furthermore, Ray’s argument is also insufficient as a matter of law under Yarbray, supra. Accordingly, the trial court did not err in granting summary judgment to the Auxiliary.

Ray also argues that she is entitled to damages from the Auxiliary because by banning her from membership and canceling the charter of unit 216, the Auxiliary ratified the alleged slander of Allen and Young. Although we need not consider this argument because Ray failed to separately enumerate it as error, see American Honda Motor Co. v. Williams & Assoc., 208 Ga. App. 636, 637-638 (431 SE2d 437) (1993), this assertion does not require reversal of the grant of summary judgment. The most recent case addressing the issue of corporate ratification of slander after the slander is spoken is Church of God v. Shaw, 194 Ga. App. 694, 695-696 (391 SE2d 666) (1990). However, Shaw provides no support for Ray’s position, as it rejects the legal efficacy of corporate liability for slander by ratification. Additionally, some authority exists for the proposition that discharge in the wake of alleged slander, as occurred here when Ray was banned from membership, fails to create an issue of fact regarding corporate ratification of slander. Cf. White v. Cudahy Co., 130 Ga. App. 64, 65 (1) (202 SE2d 233) (1973) (“[t]he fact that plaintiff was discharged from her employment [by her employer] because of the alleged slander . . . does not create an issue of fact as to ratification by the corporation of the slander”).

Finally, applying the analysis of Shaw, supra, and reviewing the facts supporting Ray’s claim of ratification, Ray has failed to show that a genuine issue of material fact exists as to the Auxiliary’s ratification of the alleged slander. The motions made and passed at the Auxiliary’s meeting did not adopt, contain, or refer to the alleged slander, and the motions standing alone were neither slanderous nor ratification of slander as a matter of law. Therefore, even assuming it is possible to hold a corporation liable for ratification of slander, Ray has failed to show that she is entitled to relief on this ground.

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.

Decided February 11, 1997.

Sidney L. Storesund, for appellant.

Parkerson, Shelfer. & Groff, William S. Shelfer, Jr., for appellee.

       Allen and Young also moved for summary judgment, which the trial court denied. These two parties have not appealed from that judgment.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A97A0040.
    JOHNSON v. THE STATE.
    (481 SE2d 268)
   Eldridge, Judge.

A Clarke County jury found Leigh Ann Johnson guilty of the offenses of driving under the influence of alcohol (less safe driver) and possession of alcohol by a person under the age of 21 pursuant to OCGA § 3-3-23. She appeals, and we affirm her conviction.

Viewed in a light most favorable to the verdict, the evidence showed that in Athens, at approximately 1:00 a.m., appellant, a junior at the University of Georgia, attempted to make a left turn onto Lumpkin Street from Broad Street before the yellow light on Broad could turn red; appellant’s car collided with another vehicle traveling straight through the intersection on Broad Street. A university police officer was flagged down and approached appellant in order to determine what happened.

Appellant initially denied involvement in an accident, but then admitted her involvement. During this conversation, the officer noticed a strong odor of alcohol emanating from appellant; the appellant was swaying on her feet. The officer administered several field sobriety tests to appellant; she failed them all.

Appellant was arrested for DUI and immediately became loud and belligerent toward the officer. Appellant, yelling, cursed the officer and referred to him by several slang terms; appellant loudly inquired as to why she was being arrested when the people in the other vehicle involved in the collision were not; appellant, who is white, referred to the other driver and his passengers by a racial epithet. Appellant’s shouted comments were made as she was being escorted to the police car in front of a'large crowd of approximately 200 people that had gathered at the corners of Broad and Lumpkin Streets. The police officer testified that appellant’s conduct was being observed by the crowd.

Appellant continued this conduct at the emergency room of the Athens Regional Medical Center where she had been transported pursuant to her initial request for a blood test; eventually, appellant’s conduct became so disruptive that the officer was forced to remove appellant from the emergency room.

1. In her first and second enumerations of error, appellant mounts a two-pronged attack on the admissibility of her statements to the university police officer wherein she referred to the officer by slang terms and to the other persons involved in the collision by a racial epithet. Appellant contends that the admission of these statements was in violation of Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), as Miranda warnings were not given, and appellant’s statements were made under the “functional equivalent of interrogation.” Apparently in the alternative, appellant claims that even if Miranda was not violated, the admission of her statement referencing the other driver and his passengers by a racial epithet “served only to inject the improper and inflammatory issue of race into the case.”

Not all in-custody statements are subject to Miranda. A volunteered statement, which is not the product of interrogation or its functional equivalent, would not be suppressible on this ground. Rhode Island v. Innis, 446 U. S. 291 (100 SC 1682, 64 LE2d 297) (1980). In the case sub judice, appellant attempts to create a nexus between her cursing of the officer while yelling racial slurs and the placing of appellant into the police vehicle in order to transport her to the police station for “continued investigation,” i.e., a breath test; appellant attempts to assign the blame for the comments upon this continued investigation. This artificial nexus appellant calls “the functional equivalent of interrogation” in violation of Miranda. We cannot agree.

Even assuming, arguendo, that appellant’s name-calling can be considered “statements” for purposes of Miranda, clearly these comments were not the result of actions on the part of the officer that “reflect a measure of compulsion above and beyond that inherent in custody itself.” Rhode Island v. Innis, supra at 300. “[T]he definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” (Emphasis omitted.) Zubiadul v. State, 193 Ga. App. 235, 237 (387 SE2d 431) (1989). The record demonstrates that the officer’s focus was to get the appellant to stop talking; this is hardly the “functional equivalent of interrogation,” and we find that appellant’s comments were spontaneous and voluntary, thus satisfying the mandates of Miranda.

The second prong of appellant’s challenge to the admissibility of her statements is no more successful. We are not unmindful of the potentially harmful role the interjection of race may play in the prosecution of a case. Shropshire v. State, 210 Ga. App. 241, 242 (435 SE2d 700) (1993); Kornegay v. State, 174 Ga. App. 279, 282-283 (329 SE2d 601) (1985). However, “we cannot say that every such reference is harmful as a matter of law,” Stephens v. State, 208 Ga. App. 620, 622 (431 SE2d 422) (1993), and we decline appellant’s invitation to so hold herein. Relevant evidence is not subject to an objection that it might inflame the minds of the jury or prejudice the jury; “[t]he Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value.” (Citation and punctuation omitted.) McKinney v. State, 213 Ga. App. 498, 500-501 (445 SE2d 550) (1994); Johnson v. State, 170 Ga. App. 433 (317 SE2d 213) (1984).

In the case sub judice, appellant was charged with DUI — less safe driver. Evidence of appellant’s intoxication came through the university officer’s testimony concerning appellant’s demeanor and conduct; thus, appellant’s belligerent shouting of racial slurs and curse words in front of hundreds of people as she was being led to a police vehicle might tend to shed light on the existence and extent of appellant’s intoxication and aid the jury in making a determination thereof. “As a sober person normally would not be expected to make such [remarks] under the circumstances, and as inhibitions are removed by alcohol intoxication, the statements were] relevant as bearing on defendant’s intoxication.” Id. at 436 (4). There was no error in the admission of appellant’s comments.

2. In her last enumeration of error, appellant contends that the trial court impermissibly punished appellant for exercising her right to a jury trial by imposing a sentence of incarceration where the trial court would not have done so had appellant pled guilty. Appellant grounds this assertion of error on a comment by the trial court during sentencing after appellant’s counsel requested reconsideration of the incarceration portion of the sentence: “[TRIAL COURT]: I’m not going to do that, John. She — I mean, to be candid with you, if she’d have pled it, I would have. But if she rolls the dice and loses, that’s —.”

Uniform Superior Court Rule 33.6 (B) forbids the imposition of an excessive sentence merely because a defendant chose to exercise his right to trial rather than enter a guilty plea. However, that rule does not require a trial court to sentence a defendant to the same sentence that would have been appropriate had a defendant entered a guilty plea. See Duncan v. State, 213 Ga. App. 394 (444 SE2d 583) (1994); Lee v. State, 199 Ga. App. 246 (404 SE2d 598) (1991). In fact, USCR 33.6 (A) provides specific factors that may be taken into consideration when a guilty plea is entered in determining if leniency is appropriate. The record demonstrates that the trial court took consideration of all of the factors that might influence leniency in sentencing pursuant to that rule, read them into the record, and specifically found that none of them was present.

Further, the transcript also reveals that when this issue was raised by defense counsel, the trial court told counsel, “[TRIAL COURT]: I’m not holding it [going to trial] against her. I — I’m applying the — what the Uniform Rules say I should take into consideration. I’ve done that, as I read into the record.”

Decided February 11, 1997.

McArthur & McArthur, John J. McArthur, for appellant.

Kenneth W. Mauldin, Solicitor, Ethelyn N. Simpson, Assistant Solicitor, for appellee.

In addition, a review of the sentencing hearing demonstrates that the trial court also took the evidence heard during trial into consideration in sentencing, as well as personal observations of the appellant’s demeanor: “[TRIAL COURT]: Ms. Johnson, I have heard the evidence in the case just as the jury heard the evidence. Based upon the evidence that the jury heard, I certainly am of the opinion that the evidence was sufficient beyond a reasonable doubt to find you guilty of these two charges. . . . Your lawyer adequately described your conduct on this occasion, and — and I’m not going to repeat that. But it was outrageous. I’ve observed you from the time that — every time you’ve been to court in connection with this charge and — and you appear to be a very reserved individual, polite, nice, but that’s not what was exhibited out there on the roadway that night. And I can only infer from that that that [sic] was a result from your ingestion of alcohol. Maybe not. Maybe you act like that quite often. If so, you should be ashamed. But I was trying to blame it on alcohol. You’re shaking your head. Apparently, it wasn’t alcohol that caused that. But if — if it wasn’t the alcohol, then you should be ashamed.”

Just as a trial court may determine the existence of factors warranting leniency, a trial court may also determine from a consideration of the evidence and observations of the defendant that leniency is unwarranted. A review of the record in the case sub judice shows that this latter possibility is what the trial court meant by “rolling the dice.” “It is not error for the trial judge to impose a greater sentence upon a defendant after he has heard the evidence at trial than he might have imposed in conjunction with a guilty plea.” (Citations and punctuation omitted.) Baldwin v. State, 217 Ga. App. 866, 868-869 (460 SE2d 80) (1995). Nothing in the record demonstrates to this Court that appellant’s sentence was imposed merely as a punishment for her decision to exercise her right to trial. There was no error.

Judgment affirmed.

Birdsong, P. J, and Ruffin, J., concur.


text:
    A97A0063.
    WILLIAMS v. DEPARTMENT OF CORRECTIONS.
    (481 SE2d 272)
   Eldridge, Judge.

Appellant sued appellee, the Georgia Department of Corrections (“the Department”), for injuries sustained when the tractor he was operating along a highway right-of-way overturned. At the time of the incident, appellant was serving a sentence as a state prisoner in a jail operated by the Unified Government of Athens-Clarke County (“the county”), which had a contract with the Department to house state prisoners for $10 per day. The supervisor overseeing the mowing operations, Officer Mike Harris (“Harris”), was an employee of Athens-Clarke County Street and Road Department.

The trial court granted summary judgment to the Department upon a finding that the county was an independent contractor with the Department, so that the Department was not liable for the acts or omissions of county employees. Appellant asserts that the grant of summary judgment was error.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A [moving party] may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of [the nonmoving party’s] case. ... If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

However, “the party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence.” King v. Crain-Daly Volkswagen, 207 Ga. App. 583, 584 (428 SE2d 586) (1993). Further, “[t]o warrant the entry of summary judgment, the undisputed facts ‘should show the right of the [moving party] to a judgment with such clarity as to leave no room for controversy, and they should show affirmatively that the [non-moving party] would not be entitled to recover under any discernible circumstances.’ [Cit.]” Allen & Bean, Inc. of Ga. v. American Bankers Ins. Co. of Fla., 153 Ga. App. 617, 618 (266 SE2d 295) (1980).

The essential elements of a cause of action for negligence in Georgia include the following: ““‘(1) [a] legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.” ’ ” Brown v. RFC Mgmt., 189 Ga. App. 603, 604 (376 SE2d 691) (1988), quoting Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). Pretermitting whether a breach of duty, causation, and resulting damage can be proved by appellant, we turn to the following issues on appeal: whether Harris, as a county employee, was an agent or independent contractor of the Department, and if Harris is determined to be an independent contractor, whether the duty owed by the Department to ensure the safety of inmates was delegable to county authorities under contract.

Appellant asserts that the trial court erred in granting summary judgment to the Department upon a finding that Harris was an independent contractor and not an “agent” of the state as contemplated by the Georgia Tort Claims Act (“GTCA”), OCGA § 50-21-20 et seq. Prior to 1994, the GTCA waived sovereign immunity for “state officers and employees while acting within the scope of their official duties or employment,” and included in the definition of officers and employees “agent[s] of the state, elected or appointed officials, law enforcement officers, and persons acting on behalf or in service of the state in any official capacity, whether with or without compensation, but the term does not include an independent contractor doing business with the state.” OCGA §§ 50-21-22 (7); 50-21-23 (a).

Appellee, through responsive pleadings and affidavits, has affirmatively denied that Harris was an agent of the Department of Corrections, asserting instead that he was an employee of the county roads department and an independent contractor of the Department, so that the state’s sovereign immunity would operate to shield the Department from liability. However, if Harris was an agent for the Department acting within his official duties in supervising the inmates, sovereign immunity was waived by OCGA § 50-21-22 (7). Since appellee has presented evidence in support of its motion for summary judgment, the burden shifts to appellant to present evidence that establishes a jury issue about Harris’ employment status.

The GTCA does not define the terms “agent” or “independent contractor.” However, under the Code’s general contract provisions, an independent contractor is one who “exercises an independent business and ... is not subject to the immediate direction and control of the employer.” OCGA § 51-2-4. “The chief test to be applied in determining whether a person is employed as a servant or as an independent contractor . . . continues to be whether the contract gives, or the employer assumes, the right to control the time, manner, and method of the performance of the work, as distinguished from the right merely to require certain definite results in conformity with the contract.” Bowman v. C. L. McCord Land &c. Dealer, 174 Ga. App. 914, 915 (331 SE2d 882) (1985); see also Perry v. Soil Remediation, 221 Ga. App. 386 (471 SE2d 320) (1996) (holding that “[t]he key is to determine whether the contractor is truly independent or whether he is simply the employer’s alter ego”).

Appellee asserts that Harris was a county employee, and therefore an independent contractor, while supervising state inmates during road maintenance work activities. They apparently assert that the state relinquishes control of the state inmates once they are assigned to county facilities.

However, OCGA § 42-5-53 (b) states that county correctional facilities are subject to the “supervision and control” of the Department and Board of Corrections. Further, the state Board of Corrections, by its rules and regulations, clearly and conclusively establishes the amount of control that the Department retains over county facilities, and therefore, employees. The Georgia Administrative Code lists, in extensive detail, rules, regulations, and requirements governing the security, discipline, housing, feeding, clothing, health care, and safety of state prisoners. Ga. Admin. Code §§ 125-2-3-.04; 125-3-1-.02; 125-3-1-.05; 125-3-2-.02; 125-3-2-.07; 125-3-2-.08; 125-4-3-.01 through 125-4-3-.04; 125-4-4-.01 through 125-4-4-.12. Violations for which an inmate may be disciplined are specifically listed in Ga. Admin. Code § 125-3-2-.04. Further, the Code establishes specific, uniform rules governing work conditions for inmates on work details, including regulating the amount of security to be provided; regulating the maximum number of hours per week an inmate may work; regulating the number and duration of lunch and other breaks; prohibiting non-emergency work on Sundays; prescribing holidays; and prohibiting work in certain weather conditions. Id. §§ 125-3-5-.01 through 125-3-5-.06. The Code also establishes guidelines for responding to an inmate emergency, specifically requiring such injuries to be reported to the Department and noting that the Department will provide “guidance . . . as to further action.” Id. § 125-4-4-.10. Finally, the regulations assign to the Department financial responsibility for payment of emergency medical care when an inmate becomes ill or injured while in a county facility. Id. § 125-4-4-.01 (b).

Such specific, expansive regulations raise an issue for the jury as to whether or not the Department controlled the “time, manner, or method” of inmate safety, security, work requirements, and supervision, or whether Harris was, in fact, an independent contractor of the state. It was error to grant summary judgment on the facts of the case sub judice.

Even if Harris was determined to be an independent contractor of the state, the Department could still be responsible for his negligence. Generally, an employer is not liable for the negligence of an independent contractor; however, exceptions exist when the work to be done involves a non-delegable duty which is “dangerous to others [no matter how] carefully performed,” when the work is a “violation of a duty imposed by statute,” or in other limited instances. OCGA § 51-2-5 (2), (4); see also St. Paul Cos. v. Capitol Office Supply Co., 158 Ga. App. 748 (282 SE2d 205) (1981).

In the case sub judice, appellant argues that the state has a statutory, non-delegable, affirmative duty to protect the health and safety of prisoners. See OCGA § 42-2-11 (c); see also Schmidt v. Adams, 211 Ga. App. 156, 158 (438 SE2d 659) (1993) (holding that “[t]he provision of medical aid [to inmates] . . . is so essential a part of the government’s duty that it is undelegable . . .”). This Court agrees with appellant, who is further supported by the United States Supreme Court, which stated in DeShaney v. Winnebago County Dept. of Social Svcs., 489 U. S. 189, 199-200 (109 SC 998, 103 LE2d 249) (1989), that “when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being. [Cit.] . . . The rationale for this principle is simple enough: when the State by affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs — e.g., food, clothing, shelter, medical care, and reasonable safety — it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. [Cits.] The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. [Cit.]”

It is against the public interest to allow statutorily-defined duties, particularly those related to the protection of the health and safety of citizens, to be assigned away by contract in an attempt to relieve the state of liability for any breach of its duties. Indeed, in justifying the need for some sovereign immunity, the General Assembly stated that “state government must provide a broad range of services and perform a broad range of functions . . . regardless of how much exposure to liability may be involved.” OCGA § 50-21-21 (a). Therefore, we hold that the Department has a nondelegable duty to protect the safety and health of state inmates that cannot be relieved by employing independent contractors.

Further, the Department has the authority to require inmates to “labor on the public roads or public works or in such other manner as the [Board of Corrections] may deem advisable” and may contract with “other political subdivision[s] . . . for the construction, repair, or maintenance of roads, bridges, public buildings, and any other public works by use of penal labor.” OCGA § 42-5-60 (e). In the case sub judice, the evidence indicates that the state’s authority has been assigned to the county, which housed appellant under a contract with the Department and utilized appellant and his fellow inmates to cut the grass along highway rights-of-way. A jury could find that the act of cutting wet grass with a tractor on a steep incline could be considered an inherently dangerous task that placed appellant in harm’s way, so that the Department is responsible for the negligence of Harris as he directed and supervised appellant, whether or not Harris has been labeled an “independent contractor.” See McMullan v. Georgia Girl Fashions, 180 Ga. App. 228, 229-230 (348 SE2d 748) (1986) (holding that a label assigned by contract “is not necessarily controlling for we may look to the contents [of the contract] to determine the character of the relationship created”).

Finally, regardless whether Harris is an independent contractor for the Department, there is a jury issue as to whether or not he was also an agent for the Department. Serving concurrently as an agent and as an independent contractor is not mutually exclusive. The Code defines the principal and agent relationship as one which “arises whenever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.” OCGA § 10-6-1. “A ratification may be express or implied from the acts or silence of the principal” and “once made may not be revoked.” OCGA § 10-6-52. “The agent’s authority shall be construed to include all necessary and usual means for effectually executing it,” and the “principal shall be bound by all the acts of his agent within the scope of his authority.” OCGA §§ 10-6-50; 10-6-51. Therefore, if the Department authorized or ratified the acts of Harris, he could be considered an agent for the Department, regardless of his status as an independent contractor.

“Questions of the existence and extent of an agent’s authority are generally for the triers of fact. . . . When an alleged principal, by acts or conduct, has knowingly caused or permitted another to appear as his agent, he will be estopped to deny the agency, to the injury of third persons. . ." Allen & Bean, Inc. of Ga., supra at 619; see also Turner Broadcasting System v. Europe Craft Imports, 186 Ga. App. 286, 288 (367 SE2d 99) (1988), quoting Warnock v. Elliott, 96 Ga. App. 778, 789 (101 SE2d 591) (1957) (holding that “[i]f there is any evidence tending to establish the agency, the questions should be submitted to a jury”).

In responding to appellee’s assertions that Harris was not an agent of the Department, appellant has pointed to evidence that appellant would have been disciplined, presumably by the Department, for refusing to act on Harris’ orders; such discipline might have included being placed in solitary confinement or losing privileges. This is affirmative evidence sufficient to create a jury issue as to whether Harris was, in fact, an agent of the Department.

Decided February 11, 1997

Charles H. Brown III, for appellant.

Michael J. Bowers, Attorney General, George P. Shingler, Deputy Attorney General, John C. Jones, Senior Assistant Attorney General, David J. Marmins, Assistant Attorney General, for appellee.

However, in granting the summary judgment for the Department, the trial court mistakenly relied on this Court’s holding in Shivers v. Barton & Ludwig, Inc., 164 Ga. App. 490, 491 (296 SE2d 749) (1982), which states that “where the only evidence that a person is an agent of another party is the mere assumption that such agency existed, or an inference drawn from the actions of that person that he was an agent of another party, such evidence has no probative value and is insufficient to authorize a finding that such, an agency exists. [Cits.]” Shivers, supra, involved a transaction where the injured third parties were voluntary actors entering into a transaction with the apparent agent of a specific, intended party. Further, at issue in Shivers, supra, was whether the purported agent’s statements or actions, without additional evidence, are sufficient to create an agency.

The case sub judice, in contrast, involves an appellant who was an unwilling actor, a prisoner that was subject to discipline if he did not follow the directions of his guard, Harris. Further, it was the Department, not Harris, that created the perception that Harris was, indeed, a guard working on behalf of the state by assigning appellant to the Athens-Clarke County facility and allowing appellant, while in custody, to be subjected to work on a road maintenance crew.

Notably, it is clearly in the state’s best interest for inmates to perceive road crew supervisors as guards; without such perceptions, inmates might mistakenly believe that they are free to leave the work site at will or otherwise disregard direct orders from the supervisors. By encouraging such perceptions to develop, the Department has ratified the actions of the county and, at least for summary judgment purposes, should be estopped from denying that Harris was an agent of the state when he was supervising a road crew of state prisoners.

Because appellant has presented some evidence which supports the inference that Harris was acting as an agent on behalf of the Department in his capacity as guard over the road crew, this Court holds that the issue of whether Harris was an agent or independent contractor of the Department, or both, should have been submitted to a jury.

Judgment reversed.

Birdsong, P. J., and Ruffin, J.,'concur.

       OCGA § 50-21-22 (7) originally defined “state officer or employee” to include “agents” of the state, but was amended in 1994 to remove agents from the OCGA § 50-21-23 (a) waiver of sovereign immunity.


text:
    A97A0199.
    FRANKLIN v. THE STATE.
    (481 SE2d 852)
   Eldridge, Judge.

Voyage Franklin appeals his Cobb County conviction for possession of cocaine. We affirm as follows:

1. Appellant first contends that the stop of his vehicle was a mere pretext, unsupported by reasonable, articulable suspicion. Thus, appellant contends that the fruits of the subsequent consensual search, a rock of crack cocaine and two crack pipes, should have been suppressed as derived from the illegal stop. We do not agree.

The record demonstrates that while a BOLO (“be on the look out”) had been placed on appellant’s vehicle for possible involvement in drug activity, appellant’s car was actually stopped by the Marietta police because a rear tail light was out. Appellant testified at trial that the arresting officer told him that he was stopped because his rear light was out and showed him “where was considered the defective light.” Appellant did not at trial, nor does he before this Court, dispute that one of his rear lights was not working. Thus, the police officer was justified in stopping the appellant’s vehicle in order to determine whether its operation was in violation of OCGA § 40-8-23 and/or OCGA §§ 40-6-25 and 40-6-26. See Jordan v. State, 223 Ga. App. 176 (477 SE2d 583) (1996); State v. Adams, 186 Ga. App. 87, 88 (366 SE2d 326) (1988). The evidence supports the trial court’s determination that the stop of appellant’s vehicle was permissible. Wilder v. State, 192 Ga. App. 891, 892 (386 SE2d 685) (1989). There was no error.

2. Next, appellant contends that the trial court committed reversible error by denying appellant’s motion in limine to exclude a supplemental crime lab report allegedly served in violation of the new discovery act, OCGA § 17-16-1 et seq.

Pursuant to discovery, appellant received in a timely fashion an initial crime lab report in which the rock of alleged crack cocaine retrieved from appellant’s car was analyzed and was determined to be positive for cocaine. Approximately two weeks before trial, the state requested additional testing be done on the two crack pipes that had been sent to the crime lab at the same time as the rock of cocaine; this supplemental report on the crack pipes’ drug analysis also came back positive for cocaine residue. The supplemental report was served on appellant the day of trial, which was the date on which the state received it.

The new discovery act provides that “[i]f at any time during the course of the proceedings it is brought to the attention of the court that the state has failed to comply with the requirements of [OCGA § 17-16-1 et seq.], the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed!.]” (Emphasis supplied.) OCGA § 17-16-6. In the instant case, appellant did not request a continuance, and his motion to exclude the testimony regarding the contents of the supplemental crime lab report was properly denied in the absence of a showing. See Wellborn v. State, 258 Ga. 570, 571 (372 SE2d 220) (1988); Hand v. State, 206 Ga. App. 501 (426 SE2d 18) (1992). As appellant failed to make the required showings, there was no error in denying his motion in limine as to the supplemental crime lab report.

3. Next, appellant contends that the trial court improperly allowed the state to introduce appellant’s statement to the police. Immediately after getting out of his car, appellant, who appeared nervous, told the officer that he was on his way to the Cobb County jail in order to turn himself in and begin serving a sentence pursuant to a court order. Appellant showed the officer a green sentencing sheet with the notation that appellant should turn himself in at midnight on the night in question. The state tendered this evidence as part of the circumstances surrounding appellant’s arrest, which circumstances were also relevant for impeachment purposes since appellant’s vehicle was heading in the opposite direction from his stated objective, the Cobb County jail. “Where evidence is relevant for the purpose of showing the circumstances of the arrest, it will not be excluded merely because it incidentally shows the commission of another crime. (Cit.) Although evidence may incidentally put character in issue or may be prejudicial, it may be admitted if otherwise relevant.” Hutson v. State, 216 Ga. App. 100, 101 (453 SE2d 130) (1995). This evidence about which appellant complains was relevant and admissible. Coney v. State, 198 Ga. App. 272, 274 (401 SE2d 304) (1991).

Within this same enumeration of error, appellant also complains that the state improperly cross-examined appellant regarding the specific acts which resulted in the requirement that appellant turn himself in at the jail; appellant alleges that this area of cross-examination “improperly placed his character in issue” without appellant first having “opened the door by introducing evidence of good character” pursuant to OCGA § 24-9-20 (b).

During the defense case-in-chief, appellant took the stand and revisited the subject of the sentencing sheet and his statement to the arresting officer that he was on his way to turn himself in at the county jail. Defense counsel specifically asked appellant “[l]et me back up. Why did have [sic] to turn yourself in?” To which question the appellant replied, “Well, it was for a public indecency charge and obstruction.” In addition, appellant testified as to the short duration of his sentence and the fact that the charges were simply misdemeanors to which he had pled guilty. Thereafter, the state cross-examined the appellant regarding the underlying acts which gave rise to the charges.

“Where the defendant testifies and admits prior criminal conduct, he has not placed his character ‘in issue’ within the meaning of OCGA § 24-9-20 (b)[; r]ather, ‘he has raised an issue which may be fully explored by the State on cross-examination.’ ” Jones v. State, 257 Ga. 753, 759 (363 SE2d 529) (1988); Howard v. State, 201 Ga. App. 164, 166 (410 SE2d 782) (1991). In the case sub judice, the state was “merely pursuing the specifics of a topic that appellant had introduced in his testimony on direct examination. . . . He cannot now complain that the prosecutor followed up on cross-examination.” (Citations and punctuation omitted.) Brown v. State, 204 Ga. App. 523 (420 SE2d 61) (1992); Wilkey v. State, 215 Ga. App. 354, 355 (450 SE2d 846) (1994). There was no error.

4. In his final enumeration of error, appellant contends that the trial court erred in allowing a state’s witness, Marietta police officer Kelker, to give his opinion as to the “ultimate issue” in the case, i.e., that appellant was in possession of the cocaine found in his vehicle.

A review of the record demonstrates that the state’s question to the officer on redirect examination, as well as the officer’s subsequent answer, did invade the province of the jury: “[Question:] Detective Kelker, based on it being the Defendant’s car, Brillo being found under the Defendant’s feet, a push rod being found in the Defendant’s pocket, and cocaine being found next to the Defendant, is it reasonable to assume that the Defendant was in possession of crack cocaine at that time? [Answer:] It’s very highly probable that the cocaine belonged to him. I could see no other person that it would belong to other than him, because he had everything used to smoke it, to consume it. I couldn’t — that makes me very sure that the cocaine is his. I’m — I’m very sure; it removes most of the doubt in my mind.”

Whether or not appellant was in possession of the cocaine was the ultimate issue in the case sub judice, and this issue certainly did not embody a subject matter “beyond the ken” of the average juror so as to permit testimony thereon. Medlock v. State, 263 Ga. 246, 248 (430 SE2d 754) (1993); McMichen v. Moattar, 221 Ga. App. 230, 231 (470 SE2d 800) (1996); Flowers v. State, 220 Ga. App. 814, 815 (468 SE2d 199) (1996). Thus, Officer Kelker’s opinion testimony would be error, if the appellant had not opened the door to such testimony.

Decided February 11, 1997.

Richard D. Wilson, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Ann B. Harris, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Prior to the opinion testimony about which he complains, appellant cross-examined each of the three officers called by the state regarding their opinion as to who was in possession of the cocaine: “[Cross-examination of Barnes:] [O]fficer, you were not sure who the crack rock — whether the crack rock belonged to Voyage Franklin [appellant] or Trina Williams [co-defendant] at the scene, correct? [Answer:] I believed it was Franklin Voyage’s [sic][,]” and “[Cross-examination of Bishop:] [D]o you know who possessed either the crack or the crack pipes? Can you tell the jury who possessed those items[,]” and finally, “[Cross-examination of Kelker:] [C]an you tell this jury whether Mr. Franklin possessed the cocaine or whether Trina Williams possessed the cocaine?” A rather remarkable point is the amount of restraint, not often the prosecution’s most abundant resource, shown by the state in waiting until the redirect of the last officer, Kelker, to pose the question about which the appellant now complains; the door had been open for such questioning with any one of the previous officers. “[I]t is well established that one cannot complain of a ruling that his own trial tactics or conduct procured or aided in causing.” Maner v. State, 221 Ga. App. 826, 830 (472 SE2d 716) (1996). “Under these circumstances, appellant’s trial tactics and conduct opened the door . . . for the eliciting of the witness’s opinion” as to who was in possession of the cocaine. Id. There was no error in the trial court’s ruling.

Judgment affirmed.

Birdsong, P. J., concurs. Ruffin, J., concurs in judgment only.

       Because of monetary considerations, the crime lab does not conduct chemical tests on every item sent to them; additional tests on specific items must be requested by the state. This is the crime lab’s policy, and appellant failed to demonstrate that this policy has been formulated in order to “sandbag” defense attorneys. Moreover, other than his mere assertion, appellant offered no evidence to support his contention that it is “standard practice” for the Cobb County District Attorney to delay until time for trial a request for additional tests from the crime lab beyond that which had already been performed.


author: Johnson, Judge.

text:
    A96A2474.
    HOOTEN v. GOLDOME CREDIT CORPORATION.
    (481 SE2d 550)
   Johnson, Judge.

In January 1981, Noreatha Troutman executed a deed to secure debt in favor of Rawleigh’s Homes, Inc. conveying 1.08 acres of land in Taylor County. This security deed was ultimately assigned and transferred to Goldome Credit Corporation. Arthur Hooten purchased the subject land at a sheriffs tax sale in 1993. In 1995, Goldome notified Hooten that it intended to exercise its right of redemption pursuant to OCGA § 48-4-40. Goldome provided Hooten with a quitclaim deed for his signature and an offer to tender payment to Hooten in an amount equal to his purchase price at the tax sale, ten percent appreciation per year, and all property taxes paid on the property by Hooten. Hooten did not respond to the notice, and Goldome initiated foreclosure proceedings. After the foreclosure, Goldome again wrote to Hooten notifying him of the foreclosure and informing him that he was due the redemption price for the property, which would be paid upon his execution and delivery of the quitclaim deed. When Hooten did not respond, Goldome filed a complaint to exercise its right of redemption pursuant to OCGA § 48-4-40, contemporaneously paying the redemption price into the court. The facts were not disputed, and the parties agreed to submit the case to the trial court for decision as a matter of law. After consideration, the trial judge entered judgment in favor of Goldome. The clerk of the court was directed to pay Hooten the funds which had been paid into the registry of the court, and the tax deed at issue was declared null and void. Hooten appeals.

1. “It is the duty of this court on its own motion to inquire into its jurisdiction . . . whether the instant appeal is within the jurisdiction of the Supreme Court, as a case involving title to land. Art. VI, Sec. VI, Par. III (1) of the Ga. Const. of 1983. Cases involving ‘title to land,’ as that term is used in the Constitution for the purpose of defining the jurisdiction of the Supreme Court, refer to and mean actions at law, such as ejectment and statutory substitutes, in which the plaintiff asserts a presently enforceable legal title against the possession of the defendant for the purpose of recovering the land.” (Citations and punctuation omitted.) Cole v. Cole, 205 Ga. App. 332 (1) (422 SE2d 230) (1992). Hooten does not seek possession of the land, but seeks only a determination that Goldome has no interest in the land by virtue of a defective security deed in the chain of title. Accordingly, this case is not within the exclusive jurisdiction of the Supreme Court, because it “is not one at law for the recovery of land, either in ejectment or any of its substitutes.” (Citation and punctuation omitted.) Id. Compare Southerland v. Bradshaw, 252 Ga. 294 (313 SE2d 92) (1984).

2. In two separate enumerations of error, Hooten asserts that the trial court erred in failing to recognize that Goldome lacked standing to bring a redemption action, and in finding that the security deed evidencing Goldome’s interest in the property was legal. Because these arguments are two sides of the same coin, we will address them together.

Decided January 30, 1997

Reconsideration denied February 12, 1997

Roy Miller, for appellant.

Hooten’s defense to the action below, asserted again on appeal, is that the original deed to secure debt was not executed with the requisite formality. Therefore, he argues, it is ineffective to create any interest in the property which Goldome, as assignee of the grantee, may properly assert in an action for redemption.

It is uncontroverted that Noreatha Troutman signed the deed to secure debt under seal as the buyer/grantor. This alone would constitute a valid deed between the parties. “Despite a statutory requirement that the signature of the maker of a deed must be attested by two witnesses, the requirement relates only to the recordability of the instrument, and a deed may be valid between the parties without attestation.” (Citations and punctuation omitted.) Bramblett v. Bramblett, 252 Ga. 21, 22 (310 SE2d 897) (1984).

The printed form document states, “[s]igned, sealed and delivered in the presence of” followed by two signature lines denoted as “Witness Signs Here_.” The first line bears the signature of Billy Chambers. On the second line, the printed word “witness” is crossed out and “Notary Public 10/8/84” was inserted by hand, followed by a signature. The deed was recorded in the office of the Clerk of Superior Court of Taylor County. Hooten argues that because the printed word “witness” was excised and the words notary public added by hand, there was only one witness to the deed and it is therefore invalid. We disagree.

A notary is an official witness authorized by statute to witness the execution of deeds. See OCGA § 45-17-8 (a) (1). The original deed at issue did bear the signatures of two witnesses, therefore, and was properly attested as required by OCGA § 44-5-30. Despite Hooten’s argument to the contrary, the fact that the notary did not place his official seal on the deed does not defeat the effect of his signature as a witness in his notarial capacity. The deed in question was executed prior to July 1, 1986, and the issue is thus controlled by OCGA § 45-17-6 (a) (2). For these reasons, Hooten’s challenge to the validity of the instrument is without merit. The trial court correctly allowed Goldome to redeem the property.

Judgment affirmed.

McMurray, P. J, and Ruffin, J., concur.

Westmoreland, Patterson & Moseley, Bradley G. Pyles, for appellee.

       The day and year are unclear in the copy of the deed to secure debt included in the record on appeal.


author: Ruffin, Judge.

text:
    A96A1670.
    INNES et al. v. DIXIE SERVICE CENTER.
    (481 SE2d 572)
   Ruffin, Judge.

Gordon Innes was injured while working as a temporary contract employee at the Dixie Service Center (“Dixie Service”), an automotive service center in Glynn County, Georgia. Innes and his wife sued Dixie Service, claiming that Dixie Service’s negligence caused the injury. The trial court directed a verdict for Dixie Service, and the Inneses appealed. For reasons which follow, we affirm.

The record reveals that Mr. Innes was employed by Express Services, which provides temporary contract workers to other companies. Express Services assigned Mr. Innes and several other employees to help clean Dixie Service following a fire. As part of the cleanup duties in Dixie Service’s storage room, Mr. Innes and the Express Services workers were instructed to “take each and every individual piece [of equipment or other material] off of the bay or off of the shelf that [they] were cleaning, clean the shelf, clean that piece, and put it right back where it was[.]”

On the day of his injury, Mr. Innes and another Express Services employee, referred to only as “Tom,” began cleaning shelves in the storage room. The room was small enough that Mr. Innes and Tom were working “back to back” and constantly bumping into each other, so Mr. Innes suggested that Tom clean his first section of shelves and then move on to the next, at which point Mr. Innes would begin cleaning his first section. As a result, Tom was one shelf section ahead and to the right of Mr. Innes as they worked.

Just before his injury, Mr. Innes was sitting on a milk crate cleaning the bottom two shelves of one section. He heard someone yell “look out, and [he] crunched his shoulders together,” and felt an object hit his head and then his right shoulder. Mr. Innes later learned that a red metal “baffle pipe” had struck him.

Although Mr. Innes does not know exactly where the pipe was before it fell, or who placed it there, he testified that it fell from a top shelf behind him. He is certain that the pipe did not fall from the shelf section he was then cleaning because he had just cleaned the top shelves. Mu Innes further testified that Tom, who was working to his right when the injury occurred, would have already cleaned the section of shelves behind him.

In their sole enumeration of error, the Inneses argue that the trial court erred in directing a verdict for Dixie Service. We disagree.

“'It is not error to direct a verdict if the evidence and all reasonable deductions therefrom, considered in the light most favorable to the respondent to the motion, demands the verdict and fails to disclose any material issue for jury resolution.’ [Cit.] A directed verdict is proper even where there is conflicting evidence where the plaintiff simply failed to prove his case. [Cit.]” (Emphasis omitted.) Chester v. Bouchillon, 253 Ga. 175, 177 (3) (317 SE2d 525) (1984); see also Wilson v. Southern R. Co., 208 Ga. App. 598, 600 (2) (431 SE2d 383) (1993) (physical precedent only). As we have previously found, “[t]he mere fact of injury or damage does not give rise to a presumption or inference of negligence. . . .” Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 524 (3) (a) (317 SE2d 853) (1984); see also Wilson, supra. “Negligence is not to be presumed, but is a matter for affirmative proof. In the absence of affirmative proof of negligence, we must presume performance of duty and freedom from negligence.” (Citations and punctuation omitted.) Johnson v. Critter Getters Exterminating Co., 194 Ga. App. 314, 316 (390 SE2d 434) (1990).

Applying these standards, we agree with the trial court that “[fjrom the evidence^] . . . there [was not] a sufficient basis for the jury to draw a logical conclusion one way or the other as to where the fault lies. . . .” Mr. Innes does not know who placed the baffle pipe on the shelf from which it fell or when it was put there. He knows only that it fell from a top shelf behind him. Mr. Innes also admitted that his Express Services co-worker, Tom, had already cleaned the shelves behind him when the pipe fell and the cleaning involved retrieving, wiping off, and returning each object to the shelves. In addition, Mr. Innes testified that he never saw anyone from Dixie Service enter the storage area being cleaned except to look at the fire damage.

The Inneses have not cited any evidence that Dixie Service placed the pipe negligently on the shelves or that the storage shelf area was somehow unsafe. The record simply presents no evidence of any negligence or breach of duty by Dixie Service.

Apparently recognizing the dearth of evidence, the Inneses argue on appeal that this case falls within the doctrine of res ipsa loquitur. This doctrine “allows an inference of negligence to arise from the happening of an event causing an injury to another where it is shown that the defendant owned, operated and maintained, or controlled and was responsible for the management and maintenance of the thing doing the damage, and the accident was of a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence.” (Citations and punctuation omitted.) Hall v. Chastain, 246 Ga. 782, 783 (1) (273 SE2d 12) (1980).

The record is clear, however, that Dixie Service did not have exclusive control over the objects shelved in the storage room at the time of the injury. Instead, Mr. Innes, and his co-worker Tom, were retrieving these objects, cleaning them, and then returning them to the shelves. Mr. Innes’ own testimony further reveals that Tom had already cleaned the shelf behind Mr. Innes, from which the pipe allegedly fell. Accordingly, the doctrine of res ipsa loquitur does not raise an inference of negligence in this case. The trial court properly directed a verdict for Dixie Service.

Decided February 12, 1997.

Richard H. Taylor, for appellants.

Whelchel, Brown, Readdick & Bumgartner, Brenda K. K. Flexer, for appellee.

Judgment affirmed.

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


author: Smith, Judge.

text:
    A96A1896.
    IRONS v. CSX TRANSPORTATION, INC.
    (481 SE2d 575)
   Smith, Judge.

While acting within the scope of his employment with CSX on June 10, 1988, Jackie Irons was injured when a truck driven by Taylor crossed the centerline and struck his vehicle. Taylor died as a result of the collision. A short time later, Roland, a claims representative employed by CSX, contacted Irons concerning the collision. In addition to discussing the June 10 incident, Roland and Irons negotiated a separate Federal Employers Liability Act (FELA) claim arising out of another incident. They settled the separate claim on June 27, 1988. This action addresses the issue of whether alleged statements made and alleged actions undertaken by Roland in connection with the June 10 collision created a confidential relationship between CSX and Irons. We hold that no such relationship was created and affirm.

In his complaint, Irons alleged breach of fiduciary relationship and fraud. He claimed that Roland entered settlement negotiations on his behalf “with regard to his claim against the third party tortfeasor” and thus created a confidential relationship between Irons and CSX. According to Irons, CSX “exercised a controlling influence over the will, conduct and interest of [Irons] due to the fact [that Irons] trusted [CSX] to handle his claim reasonably and prudently and to advise him of all action necessary to preserve any claims he might have against the uninsured motorist carrier or the uninsured tortfeasor.” He alleged that CSX breached this duty by failing to disclose that it was necessary for him to file suit against the uninsured tortfeasor in order to preserve his claim against the UM carrier and that the statute of limitation was two years. In a second count, Irons claimed that CSX, through Roland, fraudulently advised him that he need not file suit against Taylor’s estate. It is undisputed that Roland, on behalf of CSX, made several settlement offers to Irons. Irons rejected these offers because he thought he “was entitled to more” and that “the offer could have been better.” CSX moved for summary judgment on the grounds that no fiduciary relationship existed and that Irons could not prove all five elements of a claim for fraud. Irons appeals the trial court’s grant of the motion. Although Irons originally enumerated error with regard to both the breach of fiduciary duty and fraud claims, he successfully moved this Court to allow him to dismiss the enumeration concerning the fraud claim.

As for the claim for breach of fiduciary duty, Irons contends that fact issues remain for jury determination as to whether Roland’s actions created a confidential relationship between Irons and CSX and whether CSX breached its fiduciary duties with regard to this relationship. He claims that such a relationship arose when Roland visited him at the hospital and told him “not to worry, that he would take care of everything.” Irons understood this statement to mean that Roland would “look into” Taylor’s insurance. He maintains that despite this alleged assurance, Roland did not investigate the existence of available insurance coverage or assets of Taylor’s estate.

A confidential relationship is created whenever a party exercises “a controlling influence over the will, conduct, and interest of another” or “from a similar relationship of mutual confidence, the law requires the utmost good faith.” OCGA § 23-2-58. Although there is no confidential relationship between an insured and the insurer’s adjuster, Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 166 (268 SE2d 676) (1980), we must determine whether such a relationship was created by virtue of Roland’s status as an employee of CSX. An employer-employee relationship is usually one “of arms-length bargaining,” Cochran v. Murrah, 235 Ga. 304, 307 (219 SE2d 421) (1975), but a confidential relationship between employer and employee may sometimes arise. Id.

In Cochran, the employee-plaintiff, a farm laborer, was injured. While plaintiff was bedridden and on pain medication, his employer told him to sign documents, which he did not read, including a release that severely limited any recovery. Plaintiff subsequently filed suit seeking cancellation of the release, as well as other relief. Id. at 305. The Supreme Court concluded that despite plaintiff’s failure to read the documents, he was not precluded from recovery because evidence was presented from which a jury could determine the existence of a confidential relationship: plaintiff had worked for his employer for over eight years; he lived rent free in a house provided by his employer on his employer’s property; he accepted “without question whatever wages the defendant determined were due him,” Kienel v. Lanier, 190 Ga. App. 201, 204 (378 SE2d 359) (1989); and the employer induced him to sign the documents by misrepresenting that his medical bills and lost wages would be paid. Cochran, supra at 307-308.

In Capriulo v. Bankers Life Co., 178 Ga. App. 635 (344 SE2d 430) (1986), this Court reached a similar conclusion. There, evidence was presented that plaintiff, who suffered from a serious chronic disease, was induced to work for the employer. The employer’s agent, who had formerly worked with plaintiff at another business, knew that plaintiff suffered from the disease. He told plaintiff that his disease would be covered under the employer’s insurance. Id. at 637. After these representations were made, plaintiff went to work for the employer. The employer’s insurer subsequently failed to cover claims made by plaintiff, who brought suit alleging fraud and other misdeeds against the insurer. Because the employer’s agent “had specific knowledge” for over two years that plaintiff needed insurance coverage and assured plaintiff on several occasions that he would receive insurance coverage for his disease, we concluded there was a jury issue as to whether a confidential relationship existed. Id. at 640.

Even when construed in Irons’s favor, the facts here are unlike those in Cochran and Capriulo-. they do not show that Roland exercised a controlling influence over Irons, and they do not show that the two men interacted from positions of mutual confidence so that Irons should have believed anything other than that their relationship was an arms-length — and even adversarial — one. Contrary to the allegations in Irons’s complaint, the facts do not indicate that Roland entered into settlement negotiations on Irons’s behalf. Irons admitted that he never sought legal advice from Roland. The two men did not share a longtime personal friendship or relationship like that shared by plaintiff and the employer’s agent in Capriulo. And unlike the agent in Capriulo, Roland did not induce Irons to work for CSX by holding out a promise of insurance benefits. Instead, Roland was a claims adjuster who attempted to negotiate a claim with Irons. Although Roland first visited Irons in the hospital, nothing in the record indicates that Irons was without his faculties or dependent on any other individual to make decisions for him, as was the plaintiff in Cochran.

Decided February 12, 1997

Daniel & Lowe, Robert J. Lowe, Jr., for appellant.

Fulcher, Hagler, Reed, Hanks & Harper, James W. Purcell, Scott W. Kelly, for appellee.

On the contrary, the record shows Irons was capable of making his own decisions and did so. Unlike the plaintiff in Cochran, Irons was not illiterate or uneducated. Roland made settlement offers to Irons on more than one occasion, offers Irons refused in hopes of increasing his recovery. Irons admitted that even after the statute of limitation expired on a potential claim against CSX or for UM benefits, Roland offered him $25,000. CSX gave Irons “time to think about it” for about two months. He did not take the offer, however, because it was “not satisfactory to me.” Unlike the plaintiff in Cochran, who did as he was told by his employer, Irons refused several offers and attempted to negotiate for more money. Irons and CSX clearly were in an adversarial position with regard to compensation from CSX for Irons’s losses, a position inconsistent with Irons’s contention that a confidential, fiduciary relationship existed. Irons’s deposition testimony that he believed or trusted Roland does not change this result. “The mere fact that one reposes trust and confidence in another does not create a confidential relationship. In the majority of business dealings, opposite parties have trust and confidence in each other’s integrity, but there is no confidential relationship by this alone.” (Citations and punctuation omitted.) Kienel v. Lanier, supra, 190 Ga. App. at 203 (2). Because no evidence has been presented that the relationship was anything other than one of arms-length bargaining between parties with adverse interests, the relationship was not confidential, and the trial court correctly granted summary judgment to CSX.

Judgment affirmed.

Andrews, C. J., and Senior Appellate Judge Harold R. Banke concur.

       According to Irons, Roland erroneously informed him that Taylor’s vehicle was uninsured and consequently that suit against Taylor’s estate was not worthwhile because recovery was doubtful. Irons also alleged that although Roland contacted him several times to discuss settlement, he did not inform him of the applicable statute of limitation until the statute of limitation expired, after which the UM carrier withdrew all offers.

       The release relieved the employer and his insurance company from all claims arising out of the employee’s accident in exchange for a small sum of money. Cochran, supra at 306.

       Irons also contends that this case is similar to Vitner v. Funk, 182 Ga. App. 39 (354 SE2d 666) (1987). It is true that in that case, this Court determined that a jury could find that a confidential relationship existed. Id. at 42 (2). But the facts here differ substantially from those in Vitner, which involved a longtime business relationship between medical doctors involving a complicated “business structure” and “their interactions and dealings over the course of several years and their common goal.” Id. Vitner is not apt.


text:
    A96A1980.
    OSBORNE BONDING & SURETY COMPANY v. STATE OF GEORGIA.
    (481 SE2d 578)
   Smith, Judge.

Osborne Bonding & Surety Company appeals from the trial court’s denial of its “Motion for Refund of Surety Fees,” seeking remission of a portion of a forfeited bail bond under the version of OCGA § 17-6-72 (d) (1) in effect at the time. That subsection then provided that, under certain circumstances not disputed here, the “court shall direct remission of 95 percent of the bond amount remitted to the surety if the surety locates the principal causing the return of the principal to the jurisdiction where the bond was made, apprehends, surrenders, or produces the principal, if the apprehension or surrender of the principal was substantially procured or caused by the surety, or if the location of the principal by the surety causes the adjudication of the principal in the jurisdiction in which the bond was made.”

The parties stipulated to the facts surrounding the apprehension of the principal, Walker. On September 13, 1995, Osborne’s bail bond was forfeited for Walker’s failure to appear in Clayton County. Osborne’s investigator made inquiries at Walker’s residence in California and learned he had moved back to south Georgia. In February 1996, during a routine traffic stop in Dougherty County, Georgia, Walker was arrested on Osborne’s warrant. Before the arrest, Osborne’s investigator had notified a Clayton County sheriff’s officer that Walker was in south Georgia. Walker was extradited to Clayton County after his arrest, although not on Osborne’s warrant.

The trial court concluded that Osborne did not meet any of the requirements of the statute because it did not locate Walker; cause his return to the jurisdiction; apprehend, surrender, or procure him; or substantially procure or cause his apprehension. The trial court accordingly denied Osborne’s motion.

Osborne contends that it “substantially procured or caused” Walker’s apprehension by means of its outstanding warrant and its telephone call, which together caused Clayton County to be notified of Walker’s arrest in another county. But for its warrant and call, Osborne argues, Dougherty County authorities would have remained ignorant of the pending charges against Walker, and Clayton County authorities would not have learned of Walker’s arrest in Dougherty County. The State of Georgia, on the other hand, contends that “apprehension” is synonymous with “arrest,” that Walker was “apprehended” as soon as he was arrested in Dougherty County, and that Osborne’s call to the Clayton County authorities could not constitute a second arrest or substantially cause an arrest which had already taken place.

In determining the meaning of “substantially procured or caused” the principal’s “apprehension or surrender” under OCGA § 17-6-72 (d) (1), we must consider the rules of statutory construction. Words must be given their plain and ordinary meaning, except for words which are terms of art or have a particular meaning in a specific context. OCGA § 1-3-1 (b). We must seek to effectuate the intent of the legislature, OCGA § 1-3-1 (a), and to give each part of the statute meaning and avoid constructions that make some language mere surplusage. Moritz v. Orkin Exterminating Co., 215 Ga. App. 255, 256-257 (450 SE2d 233) (1994). All parts of a statute should be harmonized and given sensible and intelligent effect, because it is not presumed that the legislature intended to enact meaningless language. Gilbert v. Richardson, 264 Ga. 744, 747-748 (3) (452 SE2d 476) (1994).

We must also consider that “[r]ecognizances are construed strictly in favor of the surety.” JAM Bonding Co. v. State of Ga., 179 Ga. App. 82, 83 (345 SE2d 87) (1986). Moreover, OCGA § 17-6-72 is a remedial statute, Stitt v. Busbee, 136 Ga. App. 44, 45 (220 SE2d 59) (1975), and must therefore be construed in favor of the surety. Huddleston Concrete Co. v. Safeco Ins. Co. &c., 186 Ga. App. 531, 533 (1) (368 SE2d 117) (1988) (materialman’s bond).

While “arrest” and “apprehension” are very similar in meaning, we must conclude that the legislature meant to establish some distinction, because the term “arrest” is also used in this Code section. It appears from the context that the legislature uses “arrest” to refer to the actions of the State in detaining or confining an individual, see OCGA § 17-6-72 (b), while using the terms “apprehend,” “surrender,” and “produce” to refer to the activities of the surety in recovering the principal, see former OCGA § 17-6-72 (f). This distinction is supported by Black’s Law Dictionary (6th ed. 1990), which defines “arrest” as “[t]o deprive a person of his liberty by legal authority” and “apprehend” as “[t]o take hold of, whether with the mind ... or actually and bodily (as to seize or arrest a person).” (Emphasis supplied.)

We conclude that the more general term of “apprehension” is not limited in meaning to an arrest by law enforcement authorities. Osborne could therefore rely on an “apprehension” subsequent to an arrest in another jurisdiction, so long as Osborne’s actions “substantially procured or caused” the apprehension. “Substantially” means “[ejssentially; without material qualification; in the main; in substance; materially; in a substantial manner,” while “substantial” means "[o]f real worth and importance; of considerable value; valuable. Belonging to substance; actually existing; real; not seeming or imaginary; not illusive; solid; true; veritable.” Black’s Law Dictionary (6th ed. 1990).

This Court has recognized that law enforcement authorities cannot be charged with the knowledge of all arrests of individuals taking place within the state. The law “does not require an omniscient state. It would be unrealistic, considering the sheer number of defendants and various courts within the state, to require that the State be aware in every instance that a defendant it holds in one place is wanted on an unrelated charge elsewhere in the State.” Northeast Atlanta Surety Co. v. State of Ga., 197 Ga. App. 399, 401-402 (398 SE2d 435) (1990). (State did not knowingly prevent surety from producing defendant under OCGA § 17-6-72 (d) by confining him elsewhere on unrelated charge.)

Similarly, an “apprehension” for the purposes of Clayton County authorities does not necessarily occur when an individual is “arrested” in Dougherty County, unless the two jurisdictions are made aware of the identity of the individual and the existence of an outstanding warrant. This would seem particularly true where, as here, the defendant was using at least two false names. In the absence of any evidence from the State to contradict Osborne’s showing that its efforts made both jurisdictions aware of Walker’s status and identity, we conclude that Osborne’s actions substantially procured or caused Walker’s apprehension and resulted in his return to Clayton County.

The State points to the 1996 revision of OCGA § 17-6-72 (d) (1), which changed the language “if the surety locates the principal causing the return of the principal to the jurisdiction where the bond was made” to “if the surety locates the principal in the custody of the sheriff in the jurisdiction where the bond was made or in another jurisdiction causing the return of the principal to the jurisdiction where the bond was made.” This change, the State contends, creates an inference that the legislature prior to the change did not consider “apprehension” to include location of the principal in another jurisdiction. While this amended language could be construed to include the facts at issue here, Osborne does not rely on that part of the language of subsection (d) (1), either before or after its revision. It is true that new language added to a statute can create an inference that the statute did not previously contemplate that subject. Collins v. American Tel. &c. Co., 219 Ga. App. 196, 199 (4) (464 SE2d 642) (1995). The change in language here, however, does not indicate an intention to change the meaning of “substantially procured or caused”' a principal’s “apprehension or surrender,” terms which remain unchanged in the revised statute. Moreover, the legislature may clarify or “ ‘make explicit that which the statutory provision had previously made only implicit.’ ” Garel v. Ga. Insurers’ Insolvency Pool, 191 Ga. App. 572, 573 (382 SE2d 400) (1989); see also North Fulton Community Hosp. v. State Health Planning &c., 168 Ga. App. 801, 804 (2) (310 SE2d 764) (1983).

Decided February 12, 1997.

Stephen E. Boswell, Steven C. Teske, for appellant.

Robert E. Keller, District Attorney, David B. Hornsby, Assistant District Attorney, for appellee.

For these reasons, we conclude that the trial court erred in refusing remission of Osborne’s bond as provided by OCGA § 17-6-72 (d) (1).

Judgment reversed.

Andrews, C. J., and Senior Appellate Judge Harold R. Banke concur.

       OCGA § 17-6-72 was substantially revised in 1992 and further revised as of July 1996. Ga. L. 1992, p. 2933, § 4; Ga. L. 1996, p. 1233, § 3. All events at issue here, from the making of the bond to the trial court’s order denying Osborne’s motion for refund, occurred while the 1992 revision was in effect.


text:
    A96A1998.
    FULTON COUNTY BOARD OF ASSESSORS v. MCKINSEY & COMPANY, INC.
    (481 SE2d 580)
   Smith, Judge.

This is an appeal from the superior court’s decision that certain improvements to leased space are not taxable to the taxpayer/lessee, McKinsey & Company. Because the improvements at issue are fixtures taxable as realty, and because the lease does not create an estate for years in McKinsey, we affirm the trial court’s conclusion that the improvements are not taxable as personal property.

The following facts were stipulated in the trial court by McKinsey and the Fulton County Board of Assessors: McKinsey occupies space in the Georgia Pacific Center pursuant to a written lease. When McKinsey first leased the premises in 1986, the leased space was unimproved. Pursuant to the lease, the owner of the property paid a large portion of the cost of improvements for occupancy by McKinsey as office space, and McKinsey paid the remainder of the cost. The improvements consisted of “all construction, including walls, doors, floor coverings, electrical, plumbing, heating and air distribution systems, ceilings, and lighting.” Since 1986 McKinsey has also paid for the construction of other improvements necessary for occupancy of the space.

After McKinsey filed its 1994 tax return of tangible personal property, the assessor issued a tax assessment valuing McKinsey’s tangible personal property at an amount greater than that included in McKinsey’s return. A portion of the increase was attributable to the inclusion of the value of computer wiring and other miscellaneous property, which McKinsey agrees is proper. The remainder of the increase represented the depreciated value of the cost of construction of improvements to the space occupied by McKinsey. McKinsey contended this portion of the increase in the assessment was improper and appealed from the notice.

On further review, the assessor again increased the value of McKinsey’s tangible personal property. Its final valuation of personal property was $2,815,546. This amount was again attributable to the inclusion of depreciated cost of construction of improvements to the space occupied by McKinsey. On McKinsey’s appeal from this valuation, the Board of Equalization concluded that the fair market value of McKinsey’s tangible personal property was $2,533,930 (an amount slightly less than the value determined by the assessor). McKinsey then appealed to the Superior Court of Fulton County, and the parties stipulated the above-recited facts. They also stipulated the sole issue to be determined by the trial court: “[W]hether the depreciated cost of improvements to the leased premises (leasehold improvements) paid for by [McKinsey] may be assessed against [McKinsey] as its tangible personal property.”

1. In a well reasoned order, the trial court concluded that the improvements are fixtures and consequently not taxable as tangible personal property. We agree. The General Assembly has classified real property as “(1) All lands and the buildings thereon; (2) All things permanently attached to land or to the buildings thereon [emphasis supplied]; and (3) Any interest existing in, issuing out of, or dependent upon land or the buildings thereon.” OCGA § 44-1-2 (a). Fixtures are also included in this classification, defined as “[a]nything which is intended to remain permanently in its place even if it is not actually attached to the land.” OCGA § 44-1-6 (a). Fixtures pass with the realty. Id. “Under our law, real property includes not only the land but all improvements thereon. . . . Thus, unlike items of personalty, the realty and the improvements thereon cannot be separated from each other.” Fayette County Bd. of Tax Assessors v. Ga. Utilities Co., 186 Ga. App. 723, 725 (368 SE2d 326) (1988).

The improvements at issue are attached to and form an integral part of the building, and as aptly stated by the trial court, “their removal would do injury to the realty.” As such, they are fixtures and comprise a part of the real estate. We note incidentally that even if fixtures did not constitute real property by operation of law, the lease itself contemplates that the improvements are to remain a part of the property at the end of the lease term. In addition, the lease reveals that the parties contemplated that any increase in ad valorem taxes would be assessed to the owner, who could then demand that McKinsey pay the increase. Because the improvements are fixtures and therefore by law are a part of the realty, see, e.g., Ga. Utilities Co., supra, the improvements were improperly assessed as personal property.

2. Apparently conceding that the improvements are part of the realty, Fulton County argues that the interest held by McKinsey is an estate for years as opposed to a usufruct and consequently that McKinsey is subject to taxation. We find no merit in this argument. First, the assessment at issue was on personal property. If the assessor had desired to attempt assessment of the real estate as an estate for years, it could have done so. Second, no estate for years exists under the lease. It is true that a presumption exists that a lease term for more than five years creates an estate for years, which is a taxable estate. Clayton County Bd. of Tax Assessors v. City of Atlanta, 164 Ga. App. 864, 865-866 (298 SE2d 544) (1982). This presumption may be overcome, however, if the facts surrounding the lease reveal the parties’ intent to create a mere usufruct, which is not a taxable estate. Id. at 866. See also Camp v. Delta Air Lines, 232 Ga. 37, 39-40 (205 SE2d 194) (1974).

As in Camp, the lease provisions here “are incompatible with an estate for years as defined by Georgia law” and convey a “circumscribed and limited use of the premises . . . characteristic of a usufruct.” (Punctuation omitted.) Id. at 40. The lease restricts subletting and assignment rights “in a manner inconsistent with an estate for years which normally can be alienated without the grantor’s consent.” Id. at 41. It also restricts use of the space to office space only. In addition, the lease prohibits the changing of locks by McKinsey and provides that the landlord may enter the property whenever the landlord deems it reasonably “necessary or desirable” for certain enumerated purposes. As in Camp, the lease requires the consent of the landlord to make alterations. Id. at 41. The lease also requires McKinsey to abide by a list of 23 rules and regulations. It also obligates the landlord to provide certain services such as janitorial service, heating, air-conditioning, and elevator service, duties “which generally are not characteristic of grantors of estates for years.” Camp at 40-41. The lease clearly shows that McKinsey “does not have an estate for years, carrying with it the right to use in as absolute a manner as a greater estate. The quantity and quality of [McKinsey’s] rights under the present lease point to a conclusion that it creates only a usufruct.” (Citations and punctuation omitted.) Id. The trial court did not err.

Judgment affirmed.

Andrews, C. J., and Pope, P. J., concur.

Decided February 12, 1997

W. Roy Mays III, for appellant.

Ragsdale, Beals, Hooper & Seigler, David K. Beals, for appellee.


text:
    A96A2208.
    BENNETT v. TERRELL.
    (481 SE2d 583)
   Johnson, Judge.

Carla Bennett sued Samuel Terrell for personal injury following a rear-end car collision. After Terrell admitted the accident was his fault, the trial court granted a directed verdict against him on the issue of liability. The jury, however, returned a verdict in Terrell’s favor, awarding no damages. Bennett appeals the judgment entered on that verdict and raises several evidentiary issues, none of which require reversal.

1. In her first enumeration, Bennett claims the trial court should have excluded as irrelevant a statement she made to a member of her doctor’s staff. On questioning by Terrell’s attorney, the doctor agreed that his office notes indicated Bennett had called on September 13, 1994, and stated “she would not be back for therapy. She would be settling her case.” The court found this statement relevant to Terrell’s argument that Bennett was seeking medical treatment only to boost the value of her claim against Terrell. Matters of relevancy are entrusted to the discretion of the trial court. Pope v. Professional Funding Corp., 221 Ga. App. 552, 555 (3) (472 SE2d 116) (1996). As even evidence of slight probative value and doubtful relevancy should be admitted and its weight left to the jury, we cannot say the trial court abused its discretion in allowing this testimony. Platt v. Nat. Gen. Ins. Co., 205 Ga. App. 705, 710 (2) (423 SE2d 387) (1992).

2. Bennett also claims that because the trial court admitted this statement, she should have been allowed to explain it. The explanation she proffered to the court was that she had no way to pay her medical bills, did not have medical insurance, knew the defendant had liability insurance to cover the accident, and made this statement to inform the doctor’s office it would soon be paid for her treatments. The court ruled this explanation contained inadmissible evidence of insurance and the financial status of the parties. In the alternative, Bennett’s attorney offered to have her explain that there were no ongoing settlement negotiations and no settlement offers pending at the time she made the statement, which would show she was not discontinuing treatment because of any settlement. This explanation appears to contradict Bennett’s previous statement that she would soon be settling her case and circles directly back to the issue of finances. If she discontinued treatment for medical reasons, her only purpose for mentioning the settlement would be in reference to her bill.

The trial court did not err in excluding Bennett’s explanations. The financial resources of a party and the existence of insurance coverage were irrelevant to the issues in this case. See Denton v. Con-Way Southern Express, 261 Ga. 41, 42 (402 SE2d 269) (1991), overruled on other grounds, Grissom v. Gleason, 262 Ga. 374 (418 SE2d 27) (1992). In Warren v. Ballard, 266 Ga. 408, 410 (2) (467 SE2d 891) (1996), the Supreme Court strongly reaffirmed the principle that evidence of insurance will rarely be admissible in a personal injury tort action such as this, even to counter a false impression created by other testimony. The record shows the trial court weighed the probative value of the proffered explanations against their prejudicial impact on the case and determined this testimony should not be admitted. See id. at 409 (recognizing trial court’s discretion to weigh the effect of collateral source evidence). In light of the trial court’s urging that Bennett give an explanation which did not inject matters of insurance or finances, the court did not abuse its discretion in excluding this evidence. See Ballard v. Warren, 222 Ga. App. 357 (1) (474 SE2d 259) (1996).

Even if the court erred by refusing to allow the proffered explanations, that error is harmless. Bennett testified that she quit physical therapy only after her doctor ordered her to do so, and the physician agreed with her testimony. This testimony explained that Bennett’s cessation of therapy was not related to any “settlement” of her case. The proffered additional “explanations” would not have significantly aided Bennett’s efforts to rebut Terrell’s argument that she discontinued therapy because she believed her claim was about to settle. See Southern Cellular Telecom v. Banks, 208 Ga. App. 286, 287 (1) (431 SE2d 115) (1993) (appellant must demonstrate harm as well as error to merit reversal).

3. In her third enumeration of error, Bennett claims the trial court erroneously admitted hearsay testimony during Terrell’s cross-examination of her physician. The doctor was presented with a report prepared at his direction by a physical therapist in his office. The report contained the results of tests the therapist performed on Bennett. The doctor testified that he reviewed the employee’s findings but independently decided whether they were “probably” correct. The doctor then stated, over objection, that the physical therapist had indicated Bennett displayed no muscle spasms. The admission of this evidence was not error. See Stephens v. Howard, 221 Ga. App. 469, 470 (1) (471 SE2d 898) (1996) (doctor allowed to testify regarding examination done by his physical therapist, which he confirmed by personal observation); Brinks v. Robinson, 215 Ga. App. 865, 868 (5) (452 SE2d 788) (1994). Moreover, Bennett had the opportunity to cross-examine the doctor regarding the findings. Stephens, supra at 469. “Considering the testimony from Dr. [Harakas] regarding his own observations of [Bennett’s] condition, this report constituted at most cumulative evidence. [Cits.]” Id. at 470. Any error in admitting it was, therefore, harmless. Id.

Decided February 12, 1997

Buchanan & Land, Clay D. Land, Benjamin A. Land, for appellant.

Tisinger, Tisinger, Vance & Greer, Douglas C. Vassy, for appellee.

4. Bennett also claims the trial court erred by “rebuking” her attorney during closing argument. The attorney told the jury that when Terrell originally filed his answer to the complaint, he denied liability. The court then instructed the attorney that because the pleadings were not in evidence, he should not comment on them. Any alleged error was harmless because the court’s instruction did not prevent the attorney from continuing his argument that Terrell had “shifted” defenses during the litigation and refused to take responsibility for his actions. Moreover, no harm resulted because liability was no longer an issue in the case. See Banks, supra. See Superior Distrib. v. Johnson, 183 Ga. App. 131, 132 (4) (358 SE2d 474) (1987) (physical precedent only) (error going to defendant’s liability harmless where liability not in issue).

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.