author: Birdsong, Presiding Judge.

text:
    A93A0786.
    ELSBERRY v. IVEY.
    (434 SE2d 158)
   Birdsong, Presiding Judge.

Mark Elsberry appeals the grant of summary judgment in favor of George Ivey. Appellant brought suit for personal injuries sustained from falling from a roof. Appellant (who has a ninth-grade education and considers himself a capable construction worker and carpenter) was a handyman who was directed by appellee (who has a two-year engineering certificate from Georgia Tech and spent 40 years in the construction business) to remove shingles from the roof of a tenant house over a century old. The house was built with logs, and secured with wooden pegs rather than nails. Three months prior to the incident, a construction contractor inspected the house at appellee’s request and found it rotting and termite infested; both the contractor and appellee inspected the roof from the top to ascertain its condition. Appellee subsequently ordered appellant to remove the roof “from the top down.” After two asphalt shingle layers were removed, underlying wooden shingles allegedly slid causing appellant to fall from the roof. Held:

1. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) is controlling as to the proper summary judgment standard, and the court must construe the evidence and all inferences and conclusions arising therefrom most favorably toward the opposing party. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843).

2. Appellant was hired to remove a roof down to the rafters. Appellant testified he knew the age of the house and that it was in need of repairs. It was because the roof was defective that appellant was hired to remove it.

(a) An owner or occupier of land has a duty to exercise ordinary care to keep his premises safe for such persons as may lawfully come upon the premises at the owner’s expressed or implied invitation, including workers hired to work upon the premises. OCGA § 51-3-1. However, an exception to this general rule exists as to workers hired to perform work which makes “ ‘a place that is known to be dangerous, safe, or in a work that in its progress necessarily changes the character for safety of the place in which it is performed as the work progresses.’ ” Holland v. Durham Coal &c. Co., 131 Ga. 715, 719 (63 SE 290).

The master cannot provide a safe place for a servant whose work place constantly is shifted, altered, or transformed by the very labor the servant was engaged to perform. See Rogers v. Condon, Graham & Milner, 144 Ga. 390 (1) (87 SE 397); Holland, supra at 720. The safe work place rule presupposes a static area where work is performed on a regular basis. However, construction or demolition sites by their inherent nature are naturally temporary and in a state of continuous alteration.

(b) The removal of two layers of asphalt shingles to reveal the wooden shingles below perforce would alter the roof’s condition and affect the footing of persons working on the roof. For example, loosened shingles, removed nails, and other debris were certain to accumulate to some degree even under optimum conditions making traversal of the roof more hazardous. As the roof, thusly, was not a static area but constantly shifting and being transformed as the roof removal progressed, the general rule of law, which imposes a duty on a master to provide his servant a safe work place would not apply. See generally Rogers, supra; Holland, supra; Powell v. Shurling, 51 Ga. App. 67 (179 SE 653). “Thus, where the injured servant was hired for the express purpose of assisting in the repair, demolition, or alteration of some instrumentality [in this instance, the roof], and the unsafe conditions from which the injury resulted arose from or were incidental to the work undertaken by him, the above-stated general rule is not applicable.” Louisville &c. R. Co. v. Dunn, 21 Ga. App. 379 (1) (94 SE 661).

(c) Appellant contends that he “didn’t know anything was loose” on the roof and that he had no experience with wooden shingles of the type he was hired to remove. It is undisputed that the wooden shingles were covered by two layers of asphalt shingles held in place by nails, which would be driven into the original wooden shingles. As the asphalt shingles were removed, the wooden shingles underneath were necessarily revealed and their condition should have been obvious to appellant. “It is the servant’s duty to observe every visible and manifest defect which would render his work dangerous.” Callahan v. Atlantic Ice &c. Corp., 33 Ga. App. 330, 332 (126 SE 278).

Decided July 16, 1993.

Kennedy & Kennedy, Reid G. Kennedy, Reid W. Kennedy, for appellant.

Fain, Major & Wiley, Gene A. Major, Darryl G. Haynes, for appellee.

Appellant also argues that appellee failed to warn him of the slippery and loose condition of the wooden shingles. In addition to having removed the asphalt shingles, appellant had been working on various locations of the roof for three or four hours before he fell. Were there a defect present, he had ample opportunity to discover it and act accordingly.

“A servant assumes the ordinary risks of his employment, whether or not such employment be of a dangerous character. One who is [removing shingles from a roof] for the purpose of [removing the entire roof] incurs an obvious danger of [loosened shingles and nails being underfoot], and he either knows of such danger, or is chargeable with knowledge thereof. Under such circumstances there is no hidden danger, but one which is as obvious to the servant as to the master. Such danger is an incident to the very work in which the servant is engaging, and does not come from an independent agency.” (Emphasis deleted.) Hagins v. Southern Bell Tel. &c. Co., 134 Ga. 641, 642-643 (68 SE 428). “[I]t appears that the injury was received from a danger that would ordinarily and naturally exist in doing the work which the servant was employed to perform. But this is not all. The servant could not have engaged in the work without knowing and seeing . . . the identical condition which, as grounds of negligence, it is alleged that the master allowed to exist.” Thomas v. Ga. Granite Co., 140 Ga. 459, 462 (79 SE 130). Accordingly, we are satisfied that this case poses an exception to the general rule of a master providing a safe work place to a servant or employee pursuant to OCGA § 51-3-1. The trial court did not err in granting summary judgment to appellee. Lau’s Corp., supra.

Judgment affirmed.

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


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A93A0799.
    BRYANT v. CRIDER et al.
    (434 SE2d 161)
   Smith, Judge.

This medical malpractice action appears before this court on appeal of the trial court’s order striking the affidavit of Clinton B. Ash-ford, M.D. and dismissing the complaint. We affirm the dismissal because the statute of limitation has run on appellant’s claims.

Appellant Rhonda Lavette Bryant filed her complaint on August 12, 1991, alleging negligence on the part of Harry J. Crider, Jr., M.D. and Midtown Hospital in the course of performing an abortion. Crider and Midtown moved to dismiss the complaint due to Bryant’s failure to file her complaint within the applicable statute of limitation, and Crider additionally moved to strike and to dismiss for failure to comply with the requirements of OCGA § 9-11-9.1. The trial court granted the motions on both grounds, and Bryant appeals.

1. Bryant initially appealed to the Georgia Supreme Court, alleging that the applicable statute of limitation violated her due process and equal protection rights. The Supreme Court subsequently transferred the case to this court, observing in its order of transfer that “[t]he above-styled appeal involves the application of unquestioned and unambiguous constitutional provisions.” The relevant statute, OCGA § 9-3-71, was amended in 1985 in order to cure a constitutional deficiency arising where all injury resulting from the alleged malpractice manifested itself more than two years after the negligent act. See Quinn v. Stafford, 257 Ga. 608 (362 SE2d 49) (1987); Hickey v. Askren, 198 Ga. App. 718, 720 (2a) (403 SE2d 225) (1991).

2. Crider acknowledges that the issue raised regarding his motion to strike Dr. Ashford’s affidavit under § 9-11-9.1, for failure to attach medical records, is controlled adversely to him by two recent decisions of this court. “As long as the affidavit itself adequately sets forth the factual basis for at least one negligent act or omission of the defendant alleged in the complaint, it is not necessary that the medical records from which the stated facts were taken be attached to the affidavit.” Ulbrich v. Batts, 206 Ga. App. 74, 75 (424 SE2d 288) (1992); see also Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62 (424 SE2d 632) (1992). Therefore, the trial court erred in granting Crider’s motion to strike the affidavit of Dr. Ashford. However, in view of our holding in Division 3 of this opinion, this error was harmless.

3. The final issue remaining for consideration on this appeal involves the application of the relevant statute of limitation. As a minor who had attained the age of five years, Bryant is subject to the two-year statute of limitation for medical malpractice. OCGA §§ 9-3-71; 9-3-73 (b); see Mansfield v. Pannell, 194 Ga. App. 549 (390 SE2d 913) (1990).

Bryant contends that the two-year limitation provided in OCGA § 9-3-71 should begin to run on September 8, 1989, the date she received a diagnosis of “probable Ashermann’s Syndrome,” rather than from the time she began to experience symptoms and complain of them to her physicians. We do not agree.

The relevant facts in the record are as follows: Crider performed an abortion on Bryant on March 5, 1987 at Midtown Hospital. On her deposition, Bryant testified that before the abortion, she had normal menstrual cycles with no problems other than slight cramping on the first day of her cycle. She testified that after the abortion, she had no menstrual periods for an extended time, although she did have three or four episodes of light bleeding on an irregular basis, and severe cramps producing no menstrual flow. Bryant also deposed that she has experienced severe pain intermittently since shortly after the abortion.

Bryant stated that she did not recall filling out the admission forms at Midtown. However, she identified as her own handwriting a notation on her patient history, regarding whether she would return to Midtown for a follow-up examination or make other arrangements: “Don’t have a private doctor. I’ll just make an appointment in my home town.” She never contacted Midtown regarding follow-up care. Instead, Bryant visited Manoj Shah, M.D., in Warner Robins, Georgia.

In September 1987, Bryant returned to Dr. Shah, complaining of amenorrhea, cramps, and bloating. She testified that at that time she was experiencing pain severe enough to cause her to seek medical help; that she visited the emergency room at Houston Medical Center in Warner Robins with the same complaints in 1988 and 1989; and that she and her fiancé had attempted to conceive a child throughout 1988, without success.

In her affidavit in opposition to appellees’ motions, Bryant admitted that she had “symptoms of only very light and irregular periods after the date of the abortion every six or eight months, and moderate, intermittent pelvic pain since the abortion ...” but insisted that she did not associate these problems with the abortion or know that “Asherman’s [sic] Syndrome was the problem” until her visit to Clinton B. Ashford, M.D. in Athens, Georgia. However, Bryant testifled that when she eventually consulted Dr. Ashford in September 1989, her complaints were “basically the same problems: cramping, irregular menstrual cycles.” While Dr. Ashford’s affidavit states conclusively that Bryant suffered from Ashermann’s Syndrome, the contemporaneous notes and medical report he claims to have relied upon in his affidavit under OCGA § 9-11-9.1 show that he diagnosed Bryant’s condition as “probable Ashermann’s Syndrome,” and recommended further evaluation by an infertility specialist. It is undisputed that Bryant never followed the treatment or procedures recommended by Dr. Ashford to confirm or treat the “probable” condition.

Where a conflict exists between the affidavit and deposition testimony of a party, it is resolved by construing the testimony most strongly against the party when it is self-contradictory, vague or equivocal, unless a reasonable explanation is given. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986). To the extent that Bryant’s affidavit contradicts her testimony on deposition, it will be construed against her, as she has offered no explanation for the divergence. However, it is apparent even from Bryant’s affidavit that she was aware of significant physical symptoms almost immediately after the abortion in 1987, and continued to complain of the same physical symptoms to Dr. Shah and each of her successive treating physicians, up to and including Dr. Ashford.

The Georgia Supreme Court has recognized that “there are four [distinct] points at which a tort cause of action may accrue: (1) When the defendant breaches his duty; (2) when the plaintiff is first injured; (3) when the plaintiff becomes aware of [her] injury; or (4) when the plaintiff discovers the causal relationship between [her] injury and the defendant’s breach of duty.” Lumbermen’s Mut. Cas. Co. v. Pattillo Constr. Co., 254 Ga. 461, 462 (330 SE2d 344) (1985), disapproved as to cases involving property damage in Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366 (368 SE2d 732) (1988). In Jones v. Lamon, 206 Ga. App. 842 (426 SE2d 657) (1992), this court considered these four possible points of accrual in the context of a medical malpractice action:

“The plain language in OCGA § 9-3-71 (a) that the statute of limitation begins to run on the date ‘on which an injury . . . arising from (an act of malpractice) occurred’ would seem to support the conclusion that the limitation period commences to run on the date of the injury, i.e., point II. This court in Whitaker v. Zirkle, 188 Ga. App. 706 (374 SE2d 106) (1988), without any analysis of the matter, stated that the date an injury occurs under the statute is point III, ‘the date the injury is discovered. [Cit.]’ [Git.] However, it is not necessary to resolve that issue here because . . . the evidence in the case sub judice establishes uncontrovertedly that appellant was aware of her injury (point III) at least by . . . the date on which she contacted [appellee] because she was and had been experiencing nausea and the other symptoms of the internal hemorrhaging from which she was suffering.” 206 Ga. App. at 846 (footnote omitted). The fact that appellant did not know the medical cause of her suffering until a later date does not affect the application of OCGA § 9-3-71 (a) “when the evidence establishes that appellant’s injury occurred and had physically manifested itself to her” by the earlier date. Id. A subjective belief that symptoms were due to some other cause unrelated to the alleged negligence does not change the point at which the injury occurred. Id.

The Jones decision controls the facts in this case. Bryant’s own testimony establishes that she was aware of her injury as early as September 1987, the date on which she contacted Dr. Shah complaining of amenorrhea, cramps and bloating, symptoms of which she complained to various physicians from that point forward. Furthermore, Bryant testified that she attempted unsuccessfully to conceive throughout 1988. Although she did not obtain a provisional or probable medical diagnosis until 1989, and believed that there might be some other cause for her symptoms, OCGA § 9-3-71 (a) still applies, since her injury had clearly occurred and physically manifested itself to her by September 1987, or at the latest by the end of 1988.

If we accepted Bryant’s contention that diagnosis should begin the running of the limitation, it would be arguable that her cause of action has still not accrued, since she has received only a “probable” diagnosis and has never consulted the infertility specialist recommended by Dr. Ashford. Even if we could do so without overruling controlling authority, such an interpretation would make application of the statute so indefinite as to destroy its purpose.

Although the basis of her argument is unclear, Bryant apparently argues that the statute of limitation was tolled because other physicians allegedly told her that there was no problem: “I thought something was wrong, however, the doctors were telling me there was not.” (Emphasis supplied.) Bryant also alleged in her complaint that Midtown had a duty to “follow up” with her “on a regular basis,” apparently into the indefinite future, but does not address this contention. Moreover, even if we addressed these contentions, they appear to be based upon some unspecified continuing duty on the part of Crider and Midtown, or upon an allegation of fraudulent concealment, and have no merit.

After Bryant left their care and sought follow-up care from another physician, Crider and Midtown had no reason to know that she was suffering any ill effects from the abortion, and so had no opportunity to diagnose or treat her alleged condition. In fact, because of her failure to notify them of any problems, they had reason to believe that she was not suffering any ill effects. See Tisdale v. Johnson, 177 Ga. App. 487, 488-489 (339 SE2d 764) (1986). Appellees had no duty towards Bryant with respect to follow-up care since she sought and obtained that care from another source and informed appellees she would not return.

The statute of limitation is tolled under OCGA § 9-3-96 for fraudulent concealment only if a plaintiff has been debarred or deterred from bringing an action by fraud on the part of a defendant. Once a plaintiff seeks the diagnosis or care of another doctor, she is no longer deterred from learning the true facts by any conduct of a defendant “even if the other doctor consulted does not diagnose the medical problem as arising from the defendant’s improper treatment. [Cit.]” Padgett v. Klaus, 201 Ga. App. 399, 400 (1) (411 SE2d 126) (1991). “[E]ven if appellant’s contentions in this regard are correct, appellant’s contact with appellees ceased in [1987], at the latest. Both before and after [1987], appellant obtained medical opinions and diagnoses from doctors other than appellees. There is nothing in the record to suggest that appellant was prevented from learning of appellees’ alleged negligence or from discovering their alleged fraud after [1987].” Shved v. Daly, 174 Ga. App. 209, 211 (329 SE2d 536) (1985).

Bryant also appears to argue, although without authority, that the statute of limitation is tolled because her alleged diminished fertility continues into the foreseeable future. As Crider observes, Bryant has apparently confused a continuing or permanent injury with the doctrine of “continuing tort,” see Everhart v. Rich’s, Inc., 229 Ga. 798, 801-802 (2) (194 SE2d 425) (1972). Application of the theory of continuing tort to claims such as those alleged by Bryant has already been rejected by this court, because the tortious injury was not inflicted over a period of time. “The fact that appellant may not have recognized, or discovered, the full impact of the alleged harm until [1989] does not obviate the fact that her exposure to the tortious acts producing the injury . . . ceased in [1987] [cit.]. ...” Hickey v. Askren, supra, 198 Ga. App. at 720 (2b).

In summary, every aspect of Bryant’s alleged injury clearly had occurred and physically manifested itself to her by 1988 at the latest. Therefore, we hold that the applicable two-year statute of limitation expired no later than the end of 1990, and Bryant’s action filed on August 12, 1991 is time-barred.

4. Appellees’ motion for the imposition of a penalty for frivolous appeal pursuant to Court of Appeals Rule 26 (b) is denied.

Decided July 16, 1993.

The Johnson Law Firm, Donald W. Johnson, J. Caleb Clarke III, for appellant.

Love & Willingham, Daryll Love, Traci L. Green, Margie P. Hames, Kimberly L. Woodland, for appellees.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

       By the filing of affidavit and deposition testimony, the motions to dismiss were converted to motions for summary judgment. See OCGA § 9-11-12 (b).

       We note initially that although Bryant was a minor, aged 16 at the time of the alleged malpractice, she acknowledges that the date at which she attained the age of majority is not relevant to our analysis.

       Dr. Ashford is the physician who provided the affidavit required by OCGA § 9-11-9.1.

       While Jones and its progeny, Vitner v. Miller, 208 Ga. App. 306 (430 SE2d 671) (1993), include several concurrences and dissents, these opinions concern distinctions between the date of injury (point II) and the date of discovery of injury (point III). The point of diagnosis or casual connection (point IV), the only point which Bryant contends falls within the statute in her case, is not at issue. See Jones, 206 Ga. App. at 846.


author: Birdsong, Presiding Judge. Andrews, Judge,

text:
    A93A0817.
    REYNOLDS v. THE STATE.
    (434 SE2d 166)
   Birdsong, Presiding Judge.

Reynolds was tried and convicted of driving under the influence of alcohol, fleeing or attempting to elude a police officer, obstruction of an officer, driving on the wrong side of the road, and possession of an open container of alcohol. His appeal is solely concerned with the conviction for fleeing or attempting to elude a police officer.

Viewing the evidence in the light most favorable to the verdict, it showed that on December 26, 1991, Officer Baker of the City of Aragon Police Department received a complaint that a person was shooting a firearm out the window of a large Ford pickup truck. Baker began driving to the reported location in his marked patrol car to investigate. On his way, he encountered Reynolds’ vehicle, which was partially on the wrong side of the road and was traveling at a high rate of speed.

Baker pulled off the road in order to turn his vehicle around and follow Reynolds and he activated the blue patrol lights of his vehicle. In response to this action, Reynolds increased his speed. Baker began to chase Reynolds, who was again on the wrong side of the road. Baker estimated that Reynolds was traveling between 45-60 mph in an area for which the posted speed limit was 30 mph. Although Baker was operating the blue lights of his vehicle, he was not able to activate the siren since the control switch was located on the floor of the vehicle and Baker was concerned that he would lose control of the vehicle if he reached for the switch. Baker did turn on his bright headlights and the “take down” lights, the clear spotlights on the patrol car. During the chase, Reynolds threw a .44 magnum revolver out the window.

Reynolds then pulled over into the driveway of a residence. Baker also stopped and commanded Reynolds to exit his vehicle. Baker than approached Reynolds’ vehicle with his gun drawn, and Reynolds repeatedly yelled to Baker that he could not touch him because he was on private property. Baker eventually pulled Reynolds out of the vehicle to the ground and handcuffed him.

Reynolds testified that although he saw the blue lights and the headlights of the patrol vehicle, he did not realize Baker was pursuing him. He claimed that the glare from Baker’s lights caused him to veer onto the wrong side of the road. Reynolds also claimed that he threw the gun from his vehicle because he did not know whether having the weapon in the vehicle was legal. There was no testimony regarding other vehicles on the road that evening. Held:

1. In his first enumeration of error, Reynolds contends that the trial court erred in overruling his motion for directed verdict regarding the charge of eluding an officer. He claims that OCGA § 40-6-395 (a) requires that an officer give both an audible and a visual signal before a conviction for eluding an officer is proper. The statute pertinently provides: “It shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual and an audible signal to bring the vehicle to a stop. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such signal shall be in uniform prominently displaying his badge of office, and his vehicle shall be appropriately marked showing it to be an official police vehicle.” (Emphasis supplied.)

“In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, kéeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a). Unlike OCGA § 40-6-6, whose purpose, inter alia, is to authorize drivers of emergency vehicles to disregard certain rules of the road when operating their emergency vehicle with both audible and visual signals so as to alert the general public of the danger present, OCGA § 40-6-395 (a) has a different and distinct statutory purpose. OCGA § 40-6-395 (a) reflects on its face an unequivocal legislative intent to render unlawful and deter those instances where a driver of a vehicle wilfully fails or refuses to bring his vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer. This is the criminal conduct intended to be proscribed and that actually is proscribed by this statute. However, the legislature also sought “to ensure the offense of ‘attempting to elude’ is not found unless the evidence allows a rational jury to conclude beyond a reasonable doubt that the person fleeing could not reasonably mistake the pursuing police car for something else.” Cook v. State, 180 Ga. App. 877, 878 (1) (350 SE2d 847). The remaining language in the statute creates a statutory signalling system designed to provide an added safeguard against an ultimate criminal conviction borne of less than wilful conduct on the part of the offending driver. The signal system is required to be initiated by the pursuing police and is not part of the criminal conduct that is statutorily proscribed.

To require both a visual and an audible signal, rather than just one recognizable signal of either type, serves no meaningful legislative purpose and in fact lends itself, as is evidenced by the facts of this case, to results legally absurd. If one recognizable signal is given by the police, either visually or audibly, the giving of a second does not per se provide any greater assurance of actual recognition during hot pursuit. How many recognizable signals are needed to guarantee driver recognition — one, two, fifty?

Although criminal statutes must be strictly construed, they must first be construed consistent with genuine legislative intent and in a manner which avoids absurd and contradictory results (compare Mansfield v. Pannell, 261 Ga. 243 (404 SE2d 104) with Mansfield v. Pannell, 194 Ga. App. 549 (390 SE2d 913)). We accept the mantle of that duty today and conclude that the true and rational intent of the legislature was to require only one form of recognizable signal, either visual or audible. Supporting this interpretation is the language contained in the second and separate sentence of OCGA § 40-6-395 (a): “The signal given by the police officer may be by hand, voice, emergency light, or siren.” (Emphasis supplied.) While our specially concurring colleagues, relying on somewhat technical but nevertheless legitimate rules of legislative construction, would reach a differing interpretation of legislative intent, we believe sounder practice is to analyze the evil the legislature intended to proscribe and thereafter accord the statute a more meaningful and realistic interpretation. Did the legislature intend that a driver could wilfully speed away after the police activated their blue lights (thereby creating the necessity for a dangerous pursuit), throw a weapon out the car window while fleeing, and, overwhelming evidence of wilful criminal conduct notwithstanding, be deemed not to have acted unlawfully merely because the police officer (in this case due to safety considerations) failed to activate an audible signal too? In our view, such a statutory interpretation would lead to a dangerous result.

As to this particular defendant, however, the judgment of conviction must be reversed. As a fair risk cannot be excluded (due to the unexplained ambiguity appearing in the face of the statute at the time of the offense) that appellant could have labored under a mistaken belief that merely because a second signal was not given he was free wilfully to elude police pursuit without fear of criminal sanction, his conviction for this offense must be set aside. Cf. OCGA § 16-1-2 (3). “ ‘Due process mandates that criminal laws give adequate warning of what conduct will constitute a crime.’ ” Conyers v. State, 260 Ga. 506 (1) (397 SE2d 423). At the time of appellant’s offense neither the legislature nor the judiciary had provided the general public with the requisite warning.

Hopefully, as soon as politically practicable, the legislature will re-examine OCGA § 40-6-395 (a) and attempt to strike a reasonable and meaningful balance between the competing societal interests here at issue. Eluding the police is a dangerous activity: dangerous for the police, dangerous for the eluding driver, and particularly dangerous to innocent third-party bystanders who can be killed or seriously injured under circumstances frequently leaving them or their heirs with major indebtedness and no realistic means of obtaining compensation. See, e.g., Banks v. Patton, 202 Ga. App. 168 (413 SE2d 744). OCGA § 40-6-395 (a) should be re-promulgated to proscribe and deter intentional acts of eluding the police; any accompanying statutory signal system should be capable of satisfying the tests of common sense, reasonability, and effectiveness when employed in real-world, law enforcement situations.

2. In view of our disposition in Division 1 above, we need not address appellant’s remaining enumeration of error.

Judgment affirmed in part and judgment of conviction for fleeing or attempting to elude reversed.

Pope, C. J., McMurray, P. J., Cooper and Blackburn, JJ., concur. Beasley, P. J., Andrews and Smith, JJ., concur specially. Johnson, J., not participating.

Andrews, Judge,

concurring specially.

Although I agree that Reynolds’ conviction should be reversed, I disagree with the majority’s interpretation of OCGA § 40-6-395 (a). The statute requires that an officer give both an audible and a visual signal before a conviction for eluding an officer is proper.

Although the first and second sentences of the statute can be interpreted to be contradictory, there is also an equally valid interpretation which presents no ambiguity. “Where there is an apparent conflict between different sections of the same statute, the duty of a court is to reconcile them, if possible, so as to make them consistent and harmonious with one another.” Board of Trustees &c. v. Christy, 246 Ga. 553, 555 (1) (272 SE2d 288) (1980). In this instance, the unambiguous interpretation of the statute is that the second sentence simply defines the alternative methods in which the visual and audible signals may be given. In other words, the visual signal may be by hand or emergency light and the audible signal may be by voice or siren.

Furthermore, even if the two sentences are read so as to create an ambiguity, Reynolds’ conviction must be reversed. In light of the ambiguity, we are mindful that “[c]riminal statutes must be construed strictly against the State and in favor of the accused.” Palmer v. State, 260 Ga. 330, 331 (393 SE2d 251) (1990). The purpose of OCGA § 40-6-395 (a) “is to ensure the offense of ‘attempting to elude’ is not found unless the evidence allows a rational jury to conclude beyond a reasonable doubt that the person fleeing could not reasonably mistake the pursuing police car for something else.” Cook v. State, 180 Ga. App. 877, 878 (1) (350 SE2d 847) (1986). The inclusion of the word “and” in the first sentence of the statute indicates that the legislature intended that both signals were necessary to effect this purpose. See generally Reed v. State, 205 Ga. App. 209 (1) (422 SE2d 15) (1992) (fact that the indictment alleging violation of OCGA § 40-6-395 contained “or” and not “and” was not fatal because the indictment was amended at trial). Prior to the 1990 revision of the statute, effective January 1, 1991, the first sentence of the statute contained the word “or” instead of the current “and.” The change, requiring even more certain and unambiguous notification that the person must stop than had been required before the change, was made at the same time that the legislature escalated the category of this crime from a misdemeanor to a misdemeanor of a high and aggravated nature. Ga. L. 1990, pp. 2048, 2321, § 5. The change was deliberate.

Decided July 16, 1993.

Johnny R. Pannell, for appellant.

George C. Turner, Jr., District Attorney, Jeffrey L. Ballew, Assistant District Attorney, for appellee.

Accordingly, I conclude that the conviction for eluding an officer should be reversed because of the absence of an audible signal.

I am authorized to state that Presiding Judge Beasley and Judge Smith join in this special concurrence.


author: Smith, Judge. Blackburn, Judge,

text:
    A93A0839.
    JOHNSON v. THE STATE.
    (434 SE2d 169)
   Smith, Judge.

Kenneth Johnson was tried before a jury and found guilty of armed robbery, false imprisonment, and possession of a sawed-off shotgun. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdict.

1. Johnson enumerates as error the general grounds. Viewed in the light most favorable to the jury’s verdict, the evidence showed the following: Johnson was identified as the young man wielding a sawed-off shotgun who demanded the victim’s house and car keys at gunpoint and who forced him into the trunk of the car, locking it. The sawed-off shotgun Johnson possessed at the time of his subsequent arrest had a barrel of less than 18 inches. Contrary to appellant’s assertions, this evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to authorize a rational trier of fact to find Johnson guilty beyond a reasonable doubt of each offense.

2. Johnson moved before trial to exclude identification testimony on the ground that a pre-trial one-on-one confrontation between himself and the victim was impermissibly suggestive. After a hearing, the trial court denied Johnson’s motion and this ruling is enumerated as error.

There is “no per se exclusionary rule applied to pre-indictment confrontations. [Cit.]” Yancey v. State, 232 Ga. 167, 169 (205 SE2d 282) (1974). “Pre-indictment confrontations should be scrutinized to determine if they are unnecessarily suggestive and conducive to irreparable mistaken identification. The totality of the circumstances must be viewed to determine if there is a ‘likelihood of misidentification which offends against due process and “the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, [and] the level of certainty demonstrated by the witness at the confrontation.” [Cit.]’ [Cit.]” Towns v. State, 136 Ga. App. 467, 468 (1) (221 SE2d 631) (1975), applying the factors enumerated in Neil v. Biggers, 409 U. S. 188 (93 SE 375, 34 LE2d 401) (1972).

At the hearing on appellant’s motion, the victim testified that he got a very good look at the perpetrator because they stood only a few feet apart beneath the light of his front doorway. Johnson approached under the pretense of asking for a ride before displaying the shotgun and demanding the victim’s keys. When the police arrived, the victim described a young black male, wearing a flowered shirt and a long green trench coat, as the man with the gun. Johnson was arrested within ten minutes of the robbery, four hundred yards from the victim’s home, wearing a flowered shirt and a long green trench coat. He carried a sawed-off shotgun in a shoulder harness strapped inside his coat. The victim immediately and positively identified Johnson as the perpetrator. After identifying Johnson, the victim also identified the shotgun. The victim denied being coached in any way.

“[P]rompt on-the-scene confrontations and identifications, though inherently suggestive because of the presentation of a single suspect, [nevertheless] are permissible in aiding a speedy police investigation and . . . where possible doubts as to identification need to be resolved promptly, such on-the-spot identifications promote fairness by enhancing the accuracy and reliability of identification, thereby permitting expeditious release of innocent subjects. [Cit.]” Bennefield v. Brown, 228 Ga. 705, 706 (3) (187 SE2d 865) (1972). This on-the-scene confrontation with Johnson was based upon a near immediate arrest, in time and proximity, using the detailed and accurate description of the perpetrator given by the victim. The trial court’s determination that there was, under the totality of the circumstances, no likelihood of irreparable misidentification is supported by the evidence, is not clearly erroneous, and is therefore affirmed. See Hood v. State, 199 Ga. App. 774 (406 SE2d 120) (1991).

3. Subsequent to the armed robbery, Johnson was arrested while in possession of a shotgun with a barrel of less than 18 inches in length. This is adequate to support a separate conviction for a violation of OCGA § 16-11-122. The trial court did not err in refusing to merge his conviction for possession of the shotgun with his conviction for armed robbery using the same shotgun. A violation of OCGA § 16-11-122 may exist before or after an armed robbery. In Brown v. State, 168 Ga. App. 537, 538-539 (3) (309 SE2d 683) (1983), we held that the offense of possession of a firearm by a convicted felon “is not included” in the crime of armed robbery, even though both offenses arose during one transaction. The same is true with respect to the lesser offense here, and for the same reason. Proof of this lesser offense requires proof of possession of a shotgun with a barrel length less than the statutory minimum. It is not necessary to prove these elements in order to prove the greater crime of armed robbery.

4. Johnson submitted a timely written request to charge on the law of circumstantial evidence. The failure of the trial court to give this instruction is enumerated as error, on the ground that the only evidence of criminal intent was circumstantial. It is not urged that the State depended upon circumstantial evidence in whole or in part to prove the acts done in violation of state statute. See Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991).

The request submitted was an accurate, nonargumentative quotation of OCGA § 24-4-6, rather than an inaccurate statement regarding two equal theories. Compare Langston v. State, 208 Ga. App. 175 (430 SE2d 365) (1993) and Burris v. State, 204 Ga. App. 806, 810-811 (3) (420 SE2d 582) (1992). There is some authority of long standing for the proposition that the substance of OCGA § 24-4-6 should be charged when the circumstances from which a guilty intent could be inferred are consistent with an innocent intention or an intention different from that charged against the accused. See Cooper v. State, 2 Ga. App. 730 (3) (59 SE 20) (1907). However, the trial court did give the following charge on criminal intent: “The intention of a person then is always a question of fact for determination of the jury, and it is a material element of the crime charged here. A person will not be presumed to act with criminal intention, but the [jury] may find such intentions upon consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted.”

When coupled with the instructions on the presumption of innocence and the State’s burden to prove the guilt of the accused beyond a reasonable doubt, we find that the charge given adequately covered the substance of the refused request insofar as it related to the material element of criminal intent. “The failure to give requested instructions in the exact language requested, where the charge given substantially covers the same principles, is no longer a ground for new trial. The trial judge gave ample instructions [on criminal intent], and it was not error to fail to charge in the exact language requested.” (Citations and punctuation omitted.) Burris v. State, supra at 811 (3). Even if it were error, it would be harmless beyond a reasonable doubt, since no reasonable hypothesis of innocence or of a different intent has been suggested. Rash v. State, 207 Ga. App. 585, 587 (5) (428 SE2d 799) (1993).

Judgments affirmed.

Johnson, J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

I concur fully with Divisions 1 through 3 of the majority opinion.

1 concur specially with Division 4 of the majority opinion regarding the application of the rule set forth in Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991), governing when a jury charge on the law of circumstantial evidence is required. I concur fully with Division 4 of the majority opinion, but would add the following:

Based upon the evidence, almost all of which constituted direct evidence, the defendant requested a jury charge on the general law of circumstantial evidence as codified at OCGA § 24-4-6. That Code section provides that “ftJo warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” (Emphasis supplied.) This statute represents a codification of the rule requiring a charge on circumstantial evidence where the state’s case depends entirely upon circumstantial evidence, derived from Martin v. State, 38 Ga. 293 (1868); Carter v. State, 46 Ga. 637 (1872); and Simmons v. State, 85 Ga. 224 (11 SE 555) (1890), which were such cases.

Based upon the three cases from which OCGA § 24-4-6 and its predecessor statutes were derived, it was originally intended to apply only to those cases that were based entirely upon circumstantial evidence. Subject to certain exceptions, subsequent cases held that the general rule is that unless the evidence relied upon for the conviction is entirely circumstantial, a jury charge under OCGA § 24-4-6 is not required. “Where, as here, there is some direct evidence against the defendant, it is not error to fail to charge on circumstantial evidence.” Terrell v. State, 258 Ga. 722, 724 (373 SE2d 751) (1988).

However, this court has held that “if the only direct evidence comes from a witness who has been impeached, it is reversible error to fail to charge on circumstantial evidence upon request.” (Emphasis supplied.) Whittington v. State, 252 Ga. 168, 176 (313 SE2d 73) (1984); Horne v. State, 93 Ga. App. 345 (4) (91 SE2d 824) (1956). The theory underlying this rule was that where both direct and circumstantial evidence of the defendant’s guilt are admitted, and the jury is authorized to find that all the direct evidence in the form of witness testimony has been impeached, the jury is left to determine the guilt or innocence of the defendant based solely on the circumstantial evidence, and therefore must have some guidance on the quantum of circumstantial evidence which will authorize a conviction. See Green v. State, 167 Ga. App. 548 (306 SE2d 354) (1983).

The Supreme Court noted in Robinson v. State, supra, that it was impossible to determine whether the jury found the state’s witnesses had not been impeached and thus based its verdict on the direct evidence, or whether the jury found that the state’s witnesses had been impeached and thus based its verdict on circumstantial evidence (giving rise to a need for a jury charge on circumstantial evidence). To avoid such problems in the future, the Supreme Court devised the following rule: “[W]here the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request. This rule will apply whether or not the jury is authorized to find that the direct evidence presented by witness testimony has been impeached.” (Emphasis supplied.) Id. at 699-700.

The questions which must be answered in applying Robinson, are: what is the meaning of the word “depends” as used therein, and what charge on circumstantial evidence must be given, where a charge is required? It is only where the state’s case “depends” upon circumstantial evidence that such a jury charge becomes necessary. The State’s case “depends” upon circumstantial evidence only where such evidence is necessary to prove one of the essential elements of the offense for which the defendant is on trial. See Rash v. State, 207 Ga. App. 585 (5) (428 SE2d 799) (1993).

Robinson by no means requires a jury charge on the law of circumstantial evidence in every case in which some circumstantial evidence is adduced. See, e.g., Berry v. State, 262 Ga. 614 (422 SE2d 861) (1992), wherein the Supreme Court, citing Robinson, found no error in the trial court’s refusal to give a requested jury charge on circumstantial evidence that was not properly adjusted to the evidence in the case.

Where the state depended upon a mixture of direct and circumstantial evidence to prove essential elements of the offense, no charge on circumstantial evidence would have been required absent a proper request to charge the law on circumstantial evidence adjusted to the facts of the case. There was no independent duty on the court to create and give a proper charge on circumstantial evidence, adjusted to the evidence of the case. It is only where the state relies wholly on circumstantial evidence that a charge on circumstantial evidence must be given without request. Gentry v. State, 208 Ga. 370 (66 SE2d 913) (1951); Campbell v. State, 202 Ga. 705 (44 SE2d 903) (1947). This rule has not been changed by Robinson.

Inasmuch as OCGA § 24-4-6, as written, applies only to cases in which the state depends entirely upon circumstantial evidence, and the subject case involves mix of direct and circumstantial evidence, it was not error for the court to refuse to charge said Code section. Indeed, to have done so, would have mislead the jury as OCGA § 24-4-6 provides, in part, “[t]o warrant a conviction on circumstantial evidence, . . .” (emphasis supplied) while the direct evidence in the instant case was sufficient to convict the defendant. Thus, the charge requested by the defendant was not adjusted to the evidence of this case (a mixture of direct and circumstantial evidence) and the court properly refused to give same. “If any portion of a requested charge is inapt, incorrect, misleading, confusing, not adequately adjusted or tailored, or not reasonably raised or authorized by the evidence, denial of the charge request is proper.” Harris v. State, 202 Ga. App. 618, 621 (414 SE2d 919) (1992); Hill v. State, 259 Ga. 557 (3b) (385 SE2d 404) (1989).

Where the direct evidence alone suffices to establish the charged offense, and any circumstantial evidence is merely cumulative, no jury charge on circumstantial evidence is required even under Robinson. Rash v. State, supra. The rule regarding a jury charge on circumstantial evidence set forth in Robinson v. State, supra, applies only where the state relies upon such evidence to prove one of the essential elements of the offense for which the defendant is on trial. The limited quantity of circumstantial evidence adduced in the instant case was not used or needed for that purpose, and the majority opinion appropriately affirms the defendant’s conviction on the basis that a jury charge on circumstantial evidence was not required under Robinson v. State, supra.

The current status of the law concerning charging the jury on circumstantial evidence can be stated as follows:

(a) Where the state relies wholly on circumstantial evidence to prove its case a charge on circumstantial evidence as provided by OCGA § 24-4-6 is required, without request from the defendant; (b) Where the state relies on a mixture of direct and circumstantial evidence to prove essential elements of the charged offense, a proper charge on circumstantial evidence adjusted to the fact of there being mixed direct and circumstantial evidence is required, upon proper request, without regard to whether or not the state’s witnesses may have been impeached.

Decided July 16, 1993.

Steven W. Reighard, for appellant.

Lewis R. Slaton, District Attorney, Nancy A. Grace, Assistant District Attorney, for appellee.

Moreover, as this court noted in Rash v. State, supra at 587, “there is yet another reason for not reversing this case for failure to charge the law of circumstantial evidence. That is, no other reasonable hypothesis save that of the guilt of the accused has been suggested. Should the case be retried so a jury can hear those words when no other reasonable hypothesis has been offered? Our answer is in the negative.” (Citations and punctuation omitted.)


author: Pope, Chief Judge.

text:
    A93A0748.
    BURTON v. DeKALB COUNTY.
    (434 SE2d 82)
   Pope, Chief Judge.

This is the second appearance of this case before this court. Burton v. DeKalb County, 202 Ga. App. 676 (415 SE2d 647) (1992). In April 1990 plaintiff/appellant Tina M. Burton filed a complaint against defendant DeKalb County, seeking damages for injuries she received when, while working for the State Department of Human Resources in a building owned by defendant county, she slipped and fell on water which had accumulated on the rest room floor. The trial court granted summary judgment to the defendant county on the basis that the plaintiff had failed to give proper ante litem notice of her claim as required by OCGA § 36-11-1. In Burton, we reversed the grant of summary judgment to defendant county. Burton v. DeKalb County, 202 Ga. App. at 679. Thereafter, defendant county renewed its motion for summary judgment on the grounds that plaintiff’s claim was barred by the doctrine of sovereign immunity. The trial court granted defendant’s motion, and plaintiff filed the present appeal. We affirm.

Plaintiff argues that sovereign immunity has been waived in this case because the present action is for a “tort based upon [a] contract.” See Ga. Const. 1983, Art. I, Sec. II, Par. IX (which provides for a constitutional waiver of sovereign immunity in actions based on written contracts); Bd. of Regents v. Tyson, 261 Ga. 368 (1) (404 SE2d 557) (1991). The contract upon which plaintiff contends her action is based is a rental agreement between her employer, the State Department of Human Resources, and the defendant county, pursuant to which the county was obligated to maintain and repair the premises on which plaintiff was injured. Although plaintiff is not a party to this agreement, she contends she is a third-party beneficiary of the contract and is, therefore, entitled to maintain an action against the county “based on” the contract. The trial court agreed that plaintiff was a third-party beneficiary under the contract, but found that her action sounded in tort, not contract. Therefore, the trial court held the constitutional waiver of sovereign immunity for actions ex contractu did not apply in this case.

Decided June 25, 1993 —

Reconsideration denied July 19, 1993 —

Eichelberger & Perrotta, James A. Eichelberger, Joseph D. Per rotta, for appellant.

We agree with the trial court that plaintiff’s action against the county for the negligent failure to maintain the building sounded in tort, not contract, and that, therefore, there was no waiver of sovereign immunity in this case. Moreover, the fact that plaintiff is an employee of one of the parties to the contract, without more, does not evince the requisite intent to make plaintiff a beneficiary to the contract. “ ‘ “In order for a third party to have standing to enforce a contract under (OCGA § 9-2-20 (b)) it must clearly appear from the contract that it was intended for his (or her) benefit. The mere fact that (the third party) would benefit from performance of the agreement is not alone sufficient.” ’ Walls, Inc. v. Atlantic Realty Co., 186 Ga. App. 389, 391 (1) (367 SE2d 278) [(1988)].” . . . Also, ‘(t)here is no (express or implied) intention manifested in the contract that the (parties) compensate any member of the public for injurious consequences.’ Miree v. United States, 242 Ga. 126, 136 (249 SE2d 573) [(1978)].” Culberson v. Fulton-DeKalb Hosp. Auth., 201 Ga. App. 347, 348 (1) (d) (411 SE2d 75) (1991). See also Backus v. Chilivis, 236 Ga. 500 (II) (224 SE2d 370) (1976).

Although plaintiff makes a cogent argument that the defense of sovereign immunity should be abolished, this court has no authority to amend either our state Constitution or revise our statutory laws to effectuate this result.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.

Albert S. Johnson, Melinda B. White, for appellee.

       Although the county was not an original party to the agreement, it is undisputed that the county assumed the obligations under the lease agreement when it purchased the building from the prior owners.


author: Andrews, Judge.

text:
    A93A0681, A93A0682.
    JACKSON et al. v. WILLIAMS; and vice versa.
    (434 SE2d 98)
   Andrews, Judge.

On April 23, 1991, Paul Jackson and W. C. Crider filed a complaint against Williams for breach of contract, alleging that in June 1988 Williams contracted with them to construct a road. According to the complaint, Williams breached the contract and was liable for various damages arising out of the breach.

In April 1992, the case was tried to a jury in Fulton County Superior Court for five days. On April 14, 1992, the jury returned a verdict in favor of Jackson and Crider for $715,000 in contractual damages and for $40,000 for Williams’ bad faith. On April 16, 1992, the trial court entered an order by which it directed a verdict for Williams on plaintiffs’ claim for attorney fees; the trial court entered judgment on the plaintiffs’ main claim for $715,000. Having made a motion for directed verdict which the trial court denied, Williams then filed a motion for j.n.o.v., or in the alternative, for a new trial.

On October 6, 1992, the trial court granted the motion for j.n.o.v. In its order, the trial court entered judgment in favor of Williams and declared that he recover costs from the plaintiffs. The trial court found: (1) that there was no binding and enforceable contract between the plaintiffs and the defendant because the alleged contract lacked sufficient certainty; and (2) that if there was an oral agreement, it concerned an interest in land and was unenforceable under the statute of frauds; and (3) that if there was an enforceable oral agreement, it was released and/or terminated by operation of law or by mutual rescission, abandonment or a novation by the plaintiffs’ consent to the assignment of the lease between the plaintiffs and DMH Holdings, Inc.; and (4) that if there was an enforceable oral agreement, there was no legal evidence and no legal determination as to the proper amount of damages, if there had been any damages. From that order, Jackson and Crider appeal in Case No. A93A0681. In Case No. A93A0682, Williams cross-appeals.

Evidence at trial was that Jackson and Crider, who were partners in a real estate development business, leased a piece of property, which they subsequently bought. Jackson and Crider entered into a temporary lease agreement with Williams in March 1988; Williams planned to use the part of the property which he leased for a quarry.

In the Spring of 1989, pursuant to Williams’ request, the quarry site was moved north on the property. On September 6,1989, Jackson and Crider and DMH Holdings, Ltd., through its agent Williams, entered into another lease agreement for the quarry property. There was testimony that the parties were represented by counsel at the signing of these documents. On December 11, 1989, the same parties executed a “First Amended and/Restated Lease Agreement” regarding the same property; the lease for the quarry property was for five years.

In April 1990, DMH Holdings obtained Jackson and Crider’s permission to assign its leasehold estate in the quarry to Vulcan Materials Company. A letter from both companies to appellants dated April 23, 1990 confirms that transfer. Various other documents regarding the assignment, including an “asset purchase and assignment agreement” were also executed on that day. In connection with the transfer, DMH Holdings and Williams executed a covenant not to compete with Vulcan Materials.

The dispute here concerns Jackson and Crider’s contention that in June 1988, Williams entered into an oral contract in which he agreed to construct a road which would connect the quarry with a nearby highway. It is undisputed that there is no written agreement evidencing this agreement. There was evidence that Williams performed some of the preliminary construction on the road in 1989 and 1990, but in April 1990, he stopped work and repudiated the alleged contract.

There was testimony that subsequent to Williams’ departure, Jackson and Crider made efforts toward constructing the road and learned that a portion of the land for the road was in a floodplain and that a special permit and a bridge would be required to complete the project.

Case No. A93A0681

1. In their first enumeration of error, Jackson and Crider claim that the trial court erred in granting the defendant’s motion for j.n.o.v. since there was a binding contract between the plaintiffs and the defendant. “The primary question for determination is whether the evidence introduced, with all reasonable deductions ... demanded a verdict for the defendant, as the standards for granting a motion for judgment n.o.v. are the same as those governing direction of a verdict. The motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a ‘one way’ verdict proper, judgment n.o.v. should not be awarded. In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. And this approach governs the actions of appellate courts as well as trial courts.” (Citations and punctuation omitted.) Famiglietti v. Brevard Med. Investors, Ltd., 197 Ga. App. 164 (1) (397 SE2d 720) (1990).

According to appellants, the contract provided that they would provide the right-of-way for the road and Williams would take all other necessary steps to construct the road, including funding the unspecified costs of construction and acquiring any “necessary governmental permits.” Jackson and Crider contend that Williams had contracted to build a road which would comply with county road specifications, although the particulars of this compliance were left undefined.

Jackson and Crider contend that the consideration for the contract was the benefit to the quarry property that the greater accessibility would provide, although they conceded that they also would benefit from the road. They argue that the parties discussed the agreement frequently and that they even filed a “preapplication for public assistance” for the project. Jackson and Crider contend that after the quarry was moved (thus changing the location of a road), Williams reaffirmed his commitment to building the road, and that they acquired the right-of-way at that time. Subsequently, Williams hired engineering consultants, who began staking out the route of the road, which allowed Williams to begin grading and dirt moving.

Williams’ alleged breach of the contract coincided roughly with the approved assignment of the quarry property to Vulcan Materials. Jackson and Crider argue that the documents executed in connection with the assignment did not refer to the road because Williams had a personal obligation to build the road, which duty survived the assignment of the property to Vulcan Materials.

We conclude that the trial court’s determination that the contract was unenforceable because of its indefiniteness was proper. “A contract is an agreement between two or more parties for the doing or not doing of some specified thing.” OCGA § 13-1-1. “In order that it may allege an agreement, a petition must set forth a contract of such certainty and completeness that either party may have a right of action upon it.” Peachtree Med. Bldg. v. Keel, 107 Ga. App. 438, 440 (130 SE2d 530) (1963). “The requirement of certainty extends not only to the subject matter and purpose of the contract, but also to the parties, consideration, and even the time and place of performance where these are essential. When a contract is substantially alleged, some details might be supplied under the doctrines of reasonable time or reasonable requirements. But indefiniteness in subject matter so extreme as not to present anything upon which the contract may operate in a definite manner renders the contract void. ...” (Citations and punctuation omitted.) Peachtree Med., supra at 441. Furthermore, “[t]he first requirement of the law relative to contracts is that there must be a meeting of the minds of the parties, and mutuality, and in order for the contract to be valid the agreement must ordinarily be expressed plainly and explicitly enough to show what the parties agreed upon. A contract cannot be enforced in any form of action if its terms are incomplete or incomprehensible.” (Citations and punctuation omitted.) Bagwell-Hughes, Inc. v. McConnell, 224 Ga. 659, 661-662 (164 SE2d 229) (1968); see also Green v. Zaring, 222 Ga. 195 (149 SE2d 115) (1966); Patel v. Gingrey Assoc., 196 Ga. App. 203 (2) (395 SE2d 595) (1990).

Contrary to appellants’ arguments, the alleged contract here was too indefinite to be enforceable. For example, there were no discussions between the parties regarding the material content of the road, the precise location of the road or its dimensions, or the estimated cost of the project. There were no discussions regarding the time period for the construction; appellants do not even contend that there was a time within which the road was to be completed. There was no evidence of an agreement containing any definiteness or certainty.

Although it is true that, in some contexts, partial performance may supply mutuality and consideration or definiteness, see Hill Aircraft &c. Corp. v. Planes, Inc., 158 Ga. App. 151 (2) (279 SE2d 250) (1981); Steinemann v. Vaughn & Co., Ltd., 169 Ga. App. 573 (1) (313 SE2d 701) (1984), in the instant context, Williams’ part performance does not render the contract enforceable. “These deficiencies were not cured by performance of [Williams], because the agreement relied upon was so vague, indefinite and uncertain ‘as to make it impossible for courts to determine what, if anything, was agreed upon, therefore rendering it impossible to determine whether there had been performance.’ ” Bagwell-Hughes, supra at 662.

2. Because our conclusion with respect to the first enumeration of error is dispositive of the case, we need not address appellants’ other enumerations of error.

Case No. A93A0682

3. In the cross-appeal, Williams claims that the trial court erred in various ways by failing to grant his motion for new trial. In its order granting Williams’ motion, the trial court concluded, and we agree, that the grant of the motion for j.n.o.v. rendered Williams’ motion for new trial moot. Further, Williams can show no harm in the court’s order. Accordingly, the cross-appeal is dismissed.

Judgment affirmed in Case No. A93A0681; case dismissed in Case No. A93A0682,

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

Decided July 2, 1993 —

Reconsideration denied July 19, 1993 —

Vincent, Chorey, Taylor & Feil, John L. Taylor, Jr., Celeste Mc-Collough, for appellants.

Morris, Manning & Martin, Joseph R. Manning, Laura M. Tate, for appellee.


text:
    A93A0457.
    CITY OF ATLANTA v. SPEARMAN.
    (434 SE2d 87)
   Andrews, Judge.

We granted the City of Atlanta’s application for discretionary appeal to review the order of the superior court affirming the full board’s adoption of the administrative law judge’s award of workers’ compensation benefits to Spearman.

The injury at issue occurred on December 3, 1990, as Spearman was on her way to work at City Hall. She parked her car in the Garden Room Parking Garage, about a block from City Hall. She fell and injured herself in the parking lot and filed a claim for workers’ compensation benefits.

The parking garage in which Spearman fell is managed, operated, and controlled by the Georgia Building Authority, and the City is provided 100 spaces for its employees’ use. There was evidence that the City deducted $20 a month from Spearman’s paycheck for the space; the City then made a lump sum payment to the GBA for the spaces. This arrangement was for the GBA’s convenience and replaced the previous system whereby each employee paid for his own parking.

The ALJ found that the City leased 100 spaces in the parking lot from the State for the use of its employees, that the City maintained control over the allocation of those parking spaces, and that the City furnished the lot for the use of its employees. The ALJ stated: “[t]he fact that the City of Atlanta did not own that facility is immaterial, as long as they maintained direction and control over the employee’s use of the facility and furnished it for the use of their employees, as they did in this case.” The ALJ also found that the employer’s defense that it had no notice of the claim was without merit. Thus, relying on Knight-Ridder Newspaper Sales v. Desselle, 176 Ga. App. 174 (335 SE2d 458) (1985), the ALJ ruled that the injury arose out of and in the course of Spearman’s employment and awarded benefits. The board adopted the findings of fact and conclusions of law of the ALJ and awarded benefits and the superior court affirmed.

1. In the City’s first four enumerations of error, it argues that the superior court erred by misinterpreting the terms “maintain” and “control” in the context of a parking lot; in holding that Spearman’s injuries occurred on premises of the City; and in finding that the City maintained and controlled the lot.

We agree. In Tate v. Bruno’s, Inc., 200 Ga. App. 395 (408 SE2d 456) (1) (1991), this court explained the parking lot exception to the general rule that an employee going and coming from work is not a compensable event for purposes of workers’ compensation. “That carved exception provides that when an employee is injured in, or going to and from, a parking lot which is owned or maintained by the employer, the incident is compensable under workers’ compensation since the injury arose during the employee’s ingress or egress from employment. [Cits.]” Tate, supra at 396-397.

“The rationale which has allowed compensation for injuries which occur in, or going to or coming from, parking lots which are owned, maintained or controlled by the employer does not extend so far as to allow coverage when workers’ compensation benefits are claimed for an injury which occurred in a public parking lot which was neither owned, controlled, nor maintained by the employer.” Tate, supra at 397. Where the parking lot is neither owned, controlled, nor maintained by the employer, the lot is not part of the employer’s premises and the rationale which allows recovery of workers’ compensation benefits does not apply.

In Tate, the parking lot in which the employee fell was a shopping center public lot which was neither owned, directed, controlled nor maintained by the employer. Nevertheless, the employees were directed to park away from the store to allow customers the closer parking spaces. Despite this instruction, this court determined that the provisions of OCGA § 34-9-1 were not intended to afford compensation to employees injured in public parking lots and concluded that the superior court’s denial of benefits was proper. Compare Peoples v. Emory University, 206 Ga. App. 213 (424 SE2d 874) (1992).

We conclude that the award of benefits here was improper. The ALJ mistakenly equated the City’s control over the allocation of the parking spaces with control and direction over the parking lot itself. Although there was evidence that the City maintained a list of 100 employees selected to park in the lot, there was no evidence that the City owned, operated, or controlled the lot. Because of this, the court erred in finding that the accident arose out of and in the course of her employment. Compare Knight-Ridder, supra (parking lot in which employee fell was leased by the employer, and under the direction and control of the employer and thus award was proper). Department of Human Resources v. Jankowski, 147 Ga. App. 441 (249 SE2d 124) (1978), is not controlling since here Spearman is employed by the City, and not by the state. Compare Fed. Ins. Co. v. Coram, 95 Ga. App. 662 (98 SE2d 214) (1957); U. S. Cas. Co. v. Russell, 98 Ga. App. 181 (105 SE2d 378) (1958).

Decided June 28, 1993 —

Reconsideration denied July 21, 1993 —

Michael V. Coleman, Jo A. Crowder, Charles G. Hicks, for appellant.

2. The City argues that the superior court erred in holding that it owed attorney fees for defending the case without reasonable grounds, pursuant to OCGA § 34-9-108 (b) (1). OCGA § 34-9-108 (b) (1) provides that “[u]pon a determination that proceedings have been brought, prosecuted, or defended in whole or in part without reasonable grounds, the administrative law judge or the board may assess the adverse attorney’s fee against the offending party.” As a matter of law, we find that the City’s defense that the injury did not arise out of Spearman’s employment was not unreasonable and that the award of attorney fees regarding this defense was improper. See generally Goode Bros. Poultry Co. v. Kin, 201 Ga. App. 557, 561 (2) (411 SE2d 724) (1991).

The City does not argue that the defense regarding the claimant’s notice was reasonable, but argues that because its other argument was reasonable, the award of attorney fees was improper. Given the facts of this case, we agree. OCGA § 34-9-108 (b) (1) provides that attorney fees may be awarded when a case has been defended in whole, or in part, upon unreasonable grounds. We are unaware of any cases in which the employer’s defense prevailed and the employee was awarded attorney fees for an unreasonable defense.

Although it is conceivable that this result could lie under the statute, here the City’s defense of the claim was, as a matter of law, reasonable. Most obviously, the City prevailed in its defense and its controverting Spearman’s claim was not without reasonable grounds. See Whitaker v. Fieldcrest Mills, 174 Ga. App. 533 (2) (330 SE2d 761) (1985); compare West Point Pepperell v. Gordon, 163 Ga. App. 837 (3) (296 SE2d 155) (1982). The employer’s notice defense, which the ALJ found was also unreasonable was not vigorously pursued by the employer — there was no mention of this defense in the notice to controvert or in any of the written pleadings before the court. In light of these circumstances, we find that the award of attorney fees was improper.

Spearman’s request for the first time before this court that the case be remanded because of “newly discovered evidence” is improperly before this court.

Judgment reversed.

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

Dawkins, Serio & Swilley, Harrill L. Dawkins, for appellee.


text:
    A93A0644, A93A0645.
    McKINNON et al. v. SMOCK; and vice versa.
    (434 SE2d 92)
   Pope, Chief Judge.

In this medical malpractice case, we granted defendants’ application for interlocutory appeal from the trial court’s order resolving certain discovery disputes. Plaintiff filed a cross-appeal from that order.

Case No. A93A0644

1. Defendants Frank W. McKinnon, M.D., and Marietta Orthopedic Associates, P.A., argue the trial court erred by ordering the continuation of Dr. McKinnon’s deposition. The trial court ordered Dr. McKinnon to respond to plaintiff’s questions concerning what medical records of plaintiff Dr. McKinnon reviewed in preparation for his deposition and when Dr. McKinnon first saw the operative report prepared by Dr. Hammesfahr. Dr. McKinnon’s counsel objected to both questions on the grounds that the questions invaded the attorney/client privilege and directed Dr. McKinnon not to answer the questions. We hold that the trial court properly concluded that these questions do not call for privileged information. Accordingly, we find the defendants’ contention that the trial court erred by continuing the deposition of Dr. McKinnon to be without merit.

2. Defendants contend the trial court erred by failing to require plaintiff to produce correspondence that was prepared in anticipation of litigation, but was disclosed to plaintiff’s testifying expert and may have influenced the expert’s opinion. Essentially defendants argue that when an attorney makes available to an expert a document that would otherwise be subject to work product protection pursuant to OCGA § 9-11-26 (b) (3) that document is discoverable pursuant to OCGA § 9-11-26 (b) (4) authorizing discovery relating to expert witnesses.

This enumeration of error presents a question that has not yet been addressed by a Georgia appellate court, but which has been addressed by several federal courts. We are persuaded by the rationale followed by the majority of courts which have addressed this question. See, e.g., Bogosian v. Gulf Oil Corp., 738 F2d 587 (3rd Cir. 1984); United States v. 215.7 Acres of Land, 719 FSupp. 273 (D. Del. 1989); Hamel v. Gen. Motors Corp., 128 FRD 281 (D. Kan. 1989); Hydramar, Inc. v. Gen. Dynamics Corp., 119 FRD 367 (E.D. Pa. 1988); North Carolina Elec. Membership Corp. v. Carolina Power &c. Co., 108 FRD 283 (M.D.N.C. 1985). We hold that when a document is prepared in anticipation of litigation by a party’s counsel and then disclosed to that party’s testifying expert the disclosure does not waive the work product protection that should be accorded the document and the document may only be discovered “upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” OCGA § 9-11-26 (b) (3).

We agree with the Third Circuit Court of Appeals that “the marginal value in the revelation on cross-examination that the expert’s view may have originated with an attorney’s opinion or theory does not warrant overriding the strong policy against disclosure of documents consisting of core attorney’s work product.” Bogosian, 738 F2d at 595. We also adopt the procedure set forth in Bogosian to protect attorney work product when the document sought contains both facts and legal theories. When the parties are unable to resolve a conflict concerning what portions of such a document should be made available to an adverse party, the parties shall submit the disputed document to the trial court along with their argument concerning which portions should be made available to the adverse party. The trial court shall then conduct an in camera inspection of the document and instruct the attorney claiming work product protection how the document should be altered for disclosure to the adverse party. This case is remanded to the trial court for proceedings consistent with this procedure.

Case No. A93A0645

3. Plaintiff argues the trial court erred by requiring him to produce copies of his income tax returns for the years 1985 through 1990. Income tax returns are not “ ‘automatically discoverable upon a de minimis showing of relevancy.’ ” E. H. Siler Realty &c. v. Sanderlin, 158 Ga. App. 796, 797 (282 SE2d 381) (1981) (quoting Borenstein v. Blumenfeld, 151 Ga. App. 420, 421 (260 SE2d 377) (1979)). However, in this case we hold the trial court did not abuse its discretion by allowing discovery of the requested income tax returns because a sufficient showing of relevancy was made. Plaintiff seeks lost wages as an element of his damages. Plaintiff’s injury occurred in 1989. Plaintiff’s income tax records from 1985 through 1990 offer evidence of what plaintiff’s income was for a few years before his injury, whether it fluctuated during that period and whether his income changed after his injury.

Decided July 1, 1993 —

Reconsideration denied July 21, 1993 —

Alston & Bird, Robert D. McCallum, Jr., James C. Grant, for appellants.

Alan Z. Eisenstein, for appellee.

4. Plaintiff also complains that the trial court erred by allowing the defendants to amend their responses to plaintiff’s first request for admissions numbers 1 and 9. After careful review of the record we hold the trial court did not abuse its discretion by allowing those admissions to be amended. The trial court’s order contemplates that plaintiff will be allowed to depose Dr. McKinnon further to cross-examine him about the subject matter of those admissions. Regardless of the agreement or contentions of the parties concerning when discovery properly ended in this case, upon remand the plaintiff shall be allowed a reasonable amount of time to depose Dr. McKinnon regarding the amended admissions.

Judgment affirmed and case remanded with direction in Case No. A93A0644. Judgment affirmed in Case No. A93A0645.

Birdsong, P. J., and Andrews, J., concur.

       The pertinent portions of OCGA § 9-11-26 (b) (3) and (b) (4) are the same as FRCP 26 (b) (3) and (b) (4).


text:
    A93A0686.
    TUCKER FEDERAL SAVINGS & LOAN ASSOCIATION v. RAWLINS.
    (434 SE2d 94)
   Pope, Chief Judge.

This is the second appearance of this case before this court. Rawlins v. Campbell, 199 Ga. App. 472 (405 SE2d 111) (1991). On January 3, 1989, plaintiff’s brother, Elvin Rawlins (“Elvin”) purchased a certificate of deposit (“the CD”) in the amount of $100,000, using only his funds, from Tucker Federal Savings & Loan Association. Elvin purchased the CD from Tucker Federal employee Mary Harlan. On that day, Elvin requested that his nephew, Norris Campbell, Jr., be added to the certificate as a joint tenant. Both men signed the signature card for the certificate.

On March 20, 1989 Elvin returned with plaintiff, his brother, to Tucker Federal to change the joint tenants on the CD. He was assisted again that day by Ms. Harlan. Although the parties dispute whether Elvin or plaintiff instructed Ms. Harlan, it is undisputed that she was informed that Elvin wanted his nephew’s name removed from the CD and plaintiff’s name added. Ms. Harlan told them that in order to remove his nephew’s name she would have to “close” the CD and that there would be ah interest penalty. Ms. Harlan suggested instead that plaintiff’s name could be added to the account. Ms. Harlan attempted to add plaintiff’s name to the CD as a joint tenant and plaintiff signed the signature card as the ostensible third joint tenant. Construing the evidence in the light most favorable to support the verdict, Ms. Harlan also told them that only the holder of the certificate would be able to withdraw the funds and they informed Ms. Harlan plaintiff would keep the CD in his possession. Ms. Harlan disputes this testimony.

Elvin died on Friday, June 2, 1989. Shortly after Tucker Federal opened on Monday, June 5, 1989, Campbell went there to withdraw the funds held in the CD. When he informed Ms. Harlan he did not have the CD, she asked him for identification and to sign an affidavit verifying that he was a certificate holder and the certificate was lost. After he completed the affidavit, Ms. Harlan gave Campbell the CD funds.

Later on June 5, plaintiff went to Tucker Federal accompanied by his son to determine what Tucker Federal would need to allow him to withdraw the funds held in the CD. Ms. Harlan informed plaintiff upon his arrival that the funds from that CD had been withdrawn earlier by Campbell.

On February 28, 1990, plaintiff filed a complaint for damages against Campbell and Tucker Federal. Campbell moved for summary judgment. The trial court granted his motion and this court affirmed the grant of summary judgment in Campbell’s favor. This court held that plaintiff was not added to the CD as a joint tenant in compliance with OCGA § 7-1-814, and therefore could not recover against Campbell. Rawlins, 199 Ga. App. at 473. Plaintiff then proceeded against Tucker Federal. Plaintiff’s action against Tucker Federal was tried by a jury who returned a verdict in favor of plaintiff in the amount of $104,000. Tucker Federal appeals.

1. Tucker Federal asserts the trial court erred by failing to grant its motion for directed verdict and later for j.n.o.v. because it has no contractual liability to plaintiff since it dispersed the CD funds to the only person who was properly a joint tenant on the CD with Elvin. Plaintiff insists that Tucker Federal’s argument must fail because his claim against Tucker Federal is based in tort rather than contract. Plaintiff claims Tucker Federal owed a duty to Elvin and the plaintiff (1) to properly effectuate the change in ownership of the CD in the manner requested by Elvin; (2) to give them proper advice concerning how the CD funds could be obtained by the joint tenants; and (3) to follow the industry practice of requiring more than a lost certificate affidavit to obtain the funds held in a certificate when the document evidencing the CD is lost. Plaintiff claims that the breach of this duty proximately caused his damages.

We must first decide what non-contractual duties, if any, a bank owes to its customer/depositor or a third-party beneficiary regarding alleged mishandling of certificates of deposit. The parties do not cite and we are aware of no Georgia decision that has specifically addressed this question. After reviewing decisions from other jurisdictions that have considered this issue, we hold that any financial institution which receives money from its customer in exchange for certificate (s) of deposit has a duty to issue and/or change the certificate in a manner that complies with the wishes of the customer, so long as the wishes of the customer are not contrary to any applicable law, and that the financial institution may be liable to the customer or a third-party beneficiary for mishandling the transaction, including improperly advising the customer how the certificate should be established or changed to comply with the wishes of the customer. See Goodman v. Farmers &c. Bank, 732 SW2d 866 (Ark. App. 1987); Corning Bank v. Rice, 645 SW2d 675 (Ark. 1983); cf. Bank South v. Harrell, 181 Ga. App. 64 (351 SE2d 263) (1986) (holding plaintiff’s only claim against the defendant bank for improperly deleting her name as an authorized signature on a commercial account sounded in contract rather than tort). Every financial institution that issues certificates of deposit should be knowledgeable about the applicable laws governing such certificates and should exercise ordinary care in handling its customer’s business so that the customer’s wishes concerning such certificates can be fulfilled to the extent allowed by law.

2. We next consider whether the trial court committed reversible error by charging the jury on the provisions of OCGA §§ 7-1-812; 7-1-813; and 7-1-814. In support of this argument, Tucker Federal relies upon the language of OCGA § 7-1-811: “Code Sections 7-1-812 through 7-1-814, concerning beneficial ownership as between parties or as between parties and P.O.D. payees or beneficiaries of multiple-party accounts, are relevant only to controversies between those persons and their creditors and other successors and have no bearing on the power of withdrawal of these persons as determined by the terms of account contracts. Code Sections 7-1-816 through 7-1-821 govern the liability of financial institutions which make payments pursuant thereto and their setoff rights.” The language of that Code section makes it clear that the provisions of OCGA §§ 7-1-812; 7-1-813; and 7-1-814 do not apply in disputes involving financial institutions and their customers concerning whether a party can properly withdraw funds in compliance with the terms of the applicable account contract. It would be absurd, however, to hold as Tucker Federal urges that these statutes, in particular OCGA § 7-1-814 which establishes the procedure for making changes to multiple-party accounts, cannot be considered in determining whether there has been a breach of the duty owed by financial institutions to properly handle transactions for their customers. For this reason, Tucker Federal’s argument that these Code sections should not have been charged because, pursuant to OCGA § 7-1-811, they are inapplicable to this dispute, must fail.

3. In a separate enumeration of error, Tucker Federal argues the trial court erred in charging the jury as follows: “I charge you that the terms of a multiple-party account can be changed only by one of two ways; number one, by closing the account and reopening it under different terms, or, two, by presentation to the financial institution of a modification agreement in a form satisfactory to the financial institution and signed by all parties with a present right of withdrawal.

“I charge you that the Plaintiff contends that the Defendant violated the above-stated law. . . .

“Such violation is called negligence per se or negligence as a matter of law. It is your duty to decide whether such violation took place or not.”

This charge constitutes reversible error in this case and we remand for a new trial. Although OCGA § 7-1-814 is applicable to this case, a financial institution’s duty to establish or change a customer’s account in a manner that is consistent with the customer’s wishes and the applicable law does not derive solely from that statute. Furthermore, whether Tucker Federal complied with the dictates of OCGA § 7-1-814 is not determinative of a breach of duty Under the facts of this case. If Tucker Federal had properly added the plaintiff without removing Campbell from the CD, Tucker Federal could still be liable to plaintiff for misleading plaintiff about whether Campbell could withdraw the funds without the actual certificate. For these reasons, charging the jury that a failure to comply with the dictates of OCGA § 7-1-814 constitutes negligence per se is reversible error in this case.

4. We will address Tucker Federal’s remaining enumeration of error because it is capable of repetition at retrial. We hold the trial court correctly excluded the testimony of Norris Campbell, Sr., and Mrs. I. O. White as the proffer of their testimony showed that neither of them was present at Tucker Federal on March 20, 1989 or had any knowledge of what Elvin or plaintiff told Ms. Harlan that day, the factual issue to be decided in this case. “Evidence which does not in any reasonable degree tend to establish the probability of the issues of fact in controversy is irrelevant and inadmissible.” Hicks v. State of Ga., 204 Ga. App. 232, 233 (418 SE2d 794) (1992); see OCGA § 24-2-1.

Judgment reversed and case remanded with direction.

Birdsong, P. J., and Andrews, J., concur.

Decided July 1, 1993 —

Reconsideration denied July 21, 1993.

Walter C. Alford, for appellant.

Smith, Welch & Studdard, Ben W. Studdard III, J. Mark Brittain, for appellee.


text:
    A93A0709.
    ILER v. CSX TRANSPORTATION, INC.
    (434 SE2d 499)
    Decided July 2, 1993 —
    Reconsideration denied July 21, 1993.

      Taylor & Harp, J. Sherrod Taylor, Jefferson C. Callier, for appellant.

      Jordan & O’Donnell, Randall A. Jordan, Rita C. Spalding, for appellee.
   Birdsong, Presiding Judge.

Darrell L. Her appeals from a judgment in his favor in a claim under the Federal Employer’s Liability Act (FELA), 45 USC § 51 et seq., against CSX Transportation, Inc. He contends the trial court erred by charging the jury, over his objection, that damages for future pain and suffering must be reduced to present value and by refusing to consider his objections based on hearsay to a physician’s deposition testimony. Held:

1. The trial court erred by instructing the jury to reduce any award for future pain and suffering to present values. Neither federal law (Purdy v. Belcher Refining Co., 781 FSupp. 1559, 1563 (SD Ala. 1992), citing O'Byrne v. St. Louis Southwestern R. Co., 632 F2d 1285, 1286 (5th Cir. 1980)) nor the law of this state (CSX Transp. v. Barnett, 199 Ga. App. 611, 612 (405 SE2d 506)) allows such a charge. Moreover, as we cannot measure the prejudicial effect of the charge the judgment must be reversed. The cases cited by CSX concerning reduction of future pecuniary losses to present value are inapplicable here.

2. In view of Division 1, we need not address the errors asserted in the other enumerations of error as the issues on which they are based are unlikely to recur in any retrial of the case.

Judgment reversed.

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


text:
    A93A0461.
    PERRYMAN v. LUFRAN, INC.
    (434 SE2d 112)
   Smith, Judge.

Margaret Jacques Perryman brought suit against convenience store owner Lufran, Inc. (Lufran), and six minor defendants, none of whom is a party to this appeal, for injuries suffered in an automobile collision. The collision involved alcohol consumed by James Kendrick, the minor driving the vehicle that collided with Perryman’s, and purchased at Lufran’s store by Scott Lever, one of Kendrick’s companions. Perryman appeals the trial court’s grant of summary judgment in favor of Lufran, based on the provision of OCGA § 51-1-40 concerning causes of action against those selling, furnishing, or serving alcoholic beverages. We affirm.

At around 7:30 p.m. on the evening in question, the six minor defendants met at a grocery store parking lot in Augusta, Georgia, to make, plans for the night. At that time, James Kendrick was driving his vehicle with Shannon Mitchell and Blake Beattie as passengers. Curt Hill was driving another vehicle with Scott Lever and Angela Boyd as passengers. The group planned to attend a party to take place somewhere around Lake Strom Thurmond, close to Lincolnton, Georgia.

On the way to the lake, the six stopped at an Amoco gas station and convenience store in Augusta owned and operated by Lufran. Upon arriving at the store, defendant Lever testified on deposition that he entered alone and purchased “two twelve-packs” of beer. Lever used false identification (a replica of a Tennessee driver’s license with Lever’s picture and a false name and date of birth) in order to make the purchase. In the meantime, Kendrick pumped gasoline into his truck. Lever said that as he was leaving Lufran’s store, the cashier commented, “[t]hat little fellow just showed me a fake I.D.” After Lever made his purchase and left the Amoco store, Kendrick entered the store to pay for the gasoline. None of the other minor defendants entered the store that evening. The evidence shows, at most, that the cashier was capable of seeing the minor defendants and their vehicles. There is no indication the cashier knew or had reason to know Lever was with Kendrick or the other members of the group.

The beer was split between the two vehicles, and the group headed toward the party near Lincolnton. After driving around for some time and failing to locate the party, the group headed back toward Augusta. At some point, the vehicles stopped and defendant Mitchell took over as driver of the Hill vehicle. Drivers Mitchell and Kendrick passed each other a number of times. On what was to be the final passing attempt of the evening, Kendrick’s vehicle struck Perry-man’s head-on while in a “no passing” zone. The blood-alcohol test performed on Kendrick registered .15, well over the legal limit.

A convenience store owner’s potential liability for the negligent acts of an intoxicated third person is set out in OCGA § 51-1-40. By enacting this Code section, the Georgia General Assembly has declared that “the consumption of [alcohol], rather than the sale or furnishing or serving of such beverages, is the proximate cause of any injury . . . inflicted by an intoxicated person . . . upon another person, except as otherwise provided. . . .” OCGA § 51-1-40 (a). The exception relevant for this appeal provides that “a person who willfully, knowingly, and unlawfully sells, furnishes, or serves alcoholic beverages to a person who is not of lawful drinking age, knowing that such person will soon be driving a motor vehicle, . . . may become liable for injury or damage caused by or resulting from the intoxication of such minor . . . when the sale, furnishing, or serving is the proximate cause of such injury or damage.” OCGA § 51-1-40 (b).

As applied to these facts, it is clear that if Lever, as the actual purchaser of the alcohol and a minor, had been driving Kendrick’s truck while intoxicated when the accident occurred, then the Lufran employee’s act of selling the alcohol to Lever, if done with knowledge that Lever would soon be driving, could be a “proximate cause” of Perryman’s injuries. It perhaps could be argued, but we do not now hold, that if appellee sold beer to Lever knowing he was but one of a group of minors arriving by automobile and currently on or around the store’s premises, then Lufran could be found liable for subsequent DUI-related injuries caused by any member of the group it so “supplied.” Neither of these situations, however, is before us in this appeal.

Perryman does not affirmatively allege, and the evidence in no way implies, that Lufran or its employee had actual knowledge that the minor purchasing the beer would soon be driving or that he was but one of a group of minors actually on the premises who would soon be leaving the premises by automobile. See Manuel v. Koonce, 206 Ga. App. 582, 585 (2) (425 SE2d 921) (1992) (knowledge of imminent driving is a prerequisite to liability under OCGA § 51-1-40 (b)).

On this crucial issue, Perryman merely offers that “[w]hether or not the cashier actually saw those vehicles would obviously be a factor of whether or not she made any effort to look and see those vehicles.” We agree with the trial court that this cannot suffice. We hold, based upon the clear limitations of liability intended by the legislature in enacting OCGA § 51-1-40, that a defendant seller, furnisher, or supplier of alcoholic beverages to a minor cannot be held liable for the negligent acts of a second minor intoxicated by such beverages when the defendant is not alleged to have had actual knowledge of the second minor’s presence and affiliation with the first. By any fair reading of OCGA § 51-1-40 (b), a convenience store owner, or its employee, simply cannot be found to have willingly and knowingly furnished alcohol to the individuals making up a group of minors by a sale to only one of them when the seller is not alleged to have been aware of the group’s existence and presence nearby. Therefore, the trial court properly granted summary judgment as to this appellee.

Decided July 6, 1993 —

Reconsideration denied July 22, 1993 —

Bonner & Jones, G. Larry Bonner, for appellant.

Alston & Bird, Gerald L. Mize, Jr., Lori G. Baer, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.