author: McMurray, Presiding Judge. Andrews, Presiding Judge,

text:
    A99A0262.
    CASE v. RGA INSURANCE SERVICES et al.
    (521 SE2d 32)
   McMurray, Presiding Judge.

Patricia Case gave JOA Marine (“JOA”) $500 toward the purchase of a ski boat during a January 1996 boat show in Atlanta, Georgia. When she went to JO As place of business to complete the transaction on January 17, 1997, a JOA employee persuaded her at closing to pay Hanover Insurance Company (“Hanover”) a $412 premium in exchange for insurance coverage for her new boat. Ms. Case signed a blank insurance application and a “bunch of” other papers at the closing and, later that day, orally completed this insurance application during a telephone interview with an employee of RGA Reinsurance Company (“RGA”) — apparently an independent insurance agency. Ms. Case later received a Hanover insurance policy covering her boat, but she did not receive a copy of her insurance application.

Ms. Case’s boat sank on Lake Lanier shortly after its maiden voyage. Upon investigating this loss, Hanover discovered that Ms. Case’s adult daughter, Andrea Case, was residing with her mother when Ms. Case applied for coverage and that Andrea Case had been involved in an automobile collision and had received several traffic citations within five years before Ms. Case applied for insurance. Hanover denied Ms. Case’s property damage claim based on these findings, alleging that she duped Hanover into insuring her boat by checking the “no” box next to the following question on her insurance application — “Has any member of the household had a motor vehicle or boating accident or loss or been convicted of a moving violation within the past 5 years?”

Ms. Case brought an action against Hanover to recover under her policy and sued RGA for negligent submission of her insurance application, alleging that RGA’s agent, Vicki Arnold, failed to record Ms. Case’s disclosure that Andrea Case would likely be operating her boat. This appeal followed the trial court’s order granting RGA’s and Hanover’s respective motions for summary judgment. Held:

1. Ms. Case contends that genuine issues of material fact remain as to the materiality of the inaccurate negative response on her insurance application. An incorrect statement in an insurance application will not prevent recovery under the policy unless the insurer, with knowledge of the true facts, would not in good faith have issued the policy, not have issued a policy in as large an amount or at the given rate, or would not have provided coverage with respect to the hazard resulting in the loss. Pa. Life Ins. Co. v. Tanner, 163 Ga. App. 330, 333-334 (293 SE2d 520). The only evidence in this regard, in the case sub judice, is Hanover’s expert underwriter’s affidavit that the company would not have issued Ms. Case an insurance policy “[h]ad Hanover been aware of the previous moving violations and automobile accident of Andrea Joyce Case. . . .” The problem with this statement is that such “opinion testimony is always a question of acceptance or nonacceptance on the part of the jury.” Pa. Life, 163 Ga. App. 330, 334, supra. We take issue with the dissent’s statement that we ignore “a long line of cases” (five panel decisions of the Court of Appeals of Georgia). The “opinion testimony” rule upon which we rely is not only based on this Court’s factually indistinguishable decision in Pa. Life, but is grounded upon venerable Supreme Court of Georgia authority providing that “summary judgment can never issue based upon opinion evidence alone.” Ginn v. Morgan, 225 Ga. 192 (2) (167 SE2d 393). In our view the dissent, without explanation, would ignore this rule and adopt a holding which provides that summary judgment must go to the insurer if the insurer’s employee provides his employer with a favorable opinion in the requisite affidavit.

The test for materiality of a representation in an insurance application should not be based upon such procedural gaming, but must be grounded upon a weighing of whether the representation varied from the truth so as to substantially change the nature, extent, or character of the risk. Preston v. Nat. Life &c. Ins. Co., 196 Ga. 217, 228-236 (26 SE2d 439). Although such factual scrutiny was avoided in Sanders v. Southern Farm &c. Ins. Co., 174 Ga. App. 888 (332 SE2d 33), when this Court disregarded the “opinion evidence” rule and mistakenly elevated the insurer’s employee’s prediction (as to what would have happened regarding coverage) into something other than opinion evidence, we have no power in the case sub judice to undo any resulting harm because, unlike Sanders and other decisions which may ignore the “opinion evidence” rule, there is proof in the case sub judice that Hanover placed no reliance on Ms. Case’s insurance application. To this extent, it is undisputed that Hanover agreed to cover Ms. Case even though several questions in the insurance application, which were relevant to the risk of coverage, were left blank and a response in the insurance application indicated that Ms. Case’s boat would be used for an unusually high risk activity. Specifically, the policy application’s “UNDERWRITING INFORMATION” section indicates that Ms. Case’s ski boat would be used for “racing” and the application’s “SUPPLEMENTAL QUESTIONNAIRE” section was left completely blank. This section’s inquiry concerns additional boat owners, the existence of a survey or statement as to the boat’s condition, any prior damage, needed repairs or deterioration, the boat’s last inspection date, the existence of kitchen or bathroom facilities on the craft, and the conditions under which the boat would be stored.

This Court affirmed a jury’s verdict for the insured in Pa. Life, 163 Ga. App. 330, 334, supra, holding that similar policy application omissions authorized the jury’s finding that any policy application misrepresentation was not material to the insurer’s acceptance of the risk under the policy. For the same reasons, we find genuine issues of material fact as to whether Hanover actually relied on Ms. Case’s insurance application before issuing her an insurance policy. The trial court therefore erred in granting Hanover’s motion for summary judgment. If the movant for summary judgment fails to show an entitlement to a judgment as a matter of law, with the evidence viewed in favor of the non-moving party, a prima facie case has not been shown. Dental One Assoc. v. JKR Realty Assoc., 269 Ga. 616, 617 (1) (501 SE2d 497).

2. Citing Jackson Nat. Life Ins. Co. v. Snead, 231 Ga. App. 406 (499 SE2d 173), cert, denied at 231 Ga. App. 908, Ms. Case contends that Hanover’s insurance application’s “yes” or “no” question regarding the boating and driving history of members “of the household” would authorize a jury’s finding that the negative response in her application did not constitute a misrepresentation.

In Jackson Nat. Life, supra, this Court adopted the general rule that answers to questions on insurance applications that are ambiguous and call for “yes” or “no” answers cannot be false as a matter of law. Id. at 410, 411 (4), supra. This holding is based on a deceased insured’s negative responses to a life insurance application’s questions regarding her status as a smoker. Because these questions were subject to interpretation based, in large part, on the application’s requirement for nothing more than “yes” or “no” responses, this Court affirmed a jury’s finding that the insured’s negative responses regarding her prior use of cigarettes were not false or misleading — even though there was proof that the insured had possibly “slipped” a cigarette or two during the year preceding her insurance application. Id.

The insurance application question at issue in the case sub judice covers several matters regarding the boating and driving history of unspecified members “of the household.” While it may be assumed that the term — “the household” — refers to Ms. Case’s household (since she is charged with verifying the application), the question calls for a single “yes” or “no” response to a compound question and fails to identify the subjects of Hanover’s inquiry, e.g., past, present, expected, short-term, or long-term members “of the household.” Further, there is no question in the application which clarifies this ambiguity, nor is there proof that Hanover conducted an inquiry to straighten out this problem before it issued Ms. Case an insurance policy. Accordingly, any misunderstanding caused by the insurance application’s question regarding a prior boating or driving history of “any member of the household” must be construed in Ms. Case’s favor.

The same rule of construing an insurance policy or bond strongly against the insurer and favorably to the insured applies to an application, or matters contained therein, as to the policy itself, the instrument having been prepared by the insurer. The insurance company is also under a duty to frame questions in the application so that they will be free from misleading interpretations. When it has failed to do so, an ambiguity or doubt arises, questions and answers thereto will be construed most favorably to the insured. 13A Appleman, Ins. Law & Practice, § 7585, pp. 254-256.

Jackson Nat. Life, 231 Ga. App. 406, 410, 411 (4), supra.

The trial court erred in granting Hanover’s motion for summary judgment as summary judgment is authorized only when there is no remaining genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). See Dental One, 269 Ga. 616, 617 (1), supra. This holding renders it unnecessary to address Ms. Case’s remaining arguments regarding the grant of Hanover’s motion for summary judgment.

3. Ms. Case testified in her deposition that she informed RGA’s agent, Vickie Arnold, during her telephone interview with Ms. Arnold, that her son and her daughter, Andrea Case, would also be operating the boat. Since there is no conclusive proof that RGA was Hanover’s duly authorized agent acting within the prosecution of Hanover’s business, Ms. Case’s testimony raises genuine issues of material fact as to RGA’s liability for negligently preparing and submitting Ms. Case’s insurance application. Where an independent insurance agent endeavors to procure insurance for another and is negligent in his undertaking, he is liable for loss or damage to the limit of the agreed policy. Beavers Ins. Agency v. Roland, 135 Ga. App. 263 (217 SE2d 484).

The dissent’s reliance on James, Hereford & McClelland v. Powell, 198 Ga. App. 604 (402 SE2d 348), is misplaced. As we view it, Powell holds that an insurance applicant cannot recover against the insurance agent for fraudulently inducing the insurer to cover the applicant because to do so would, in effect, provide the applicant with coverage that he would not have otherwise been able to acquire. Id. at 605 (1), supra. Ms. Case’s claim against RGA is not based on fraud, but is based on RGA’s alleged negligence in failing to complete and prepare her insurance application. The difference is that proper preparation of the policy application in the case sub judice would have, at the very least, alerted Ms. Case to the alleged significance of her daughter’s driving record and the need to negotiate coverage for this risk. The dissent’s view that the record evidence demands a finding that Ms. Case’s boat was not insurable is not only inaccurate, but is unrealistic.

Judgment reversed.

Johnson, C. J., Pope, P. J., Smith, Ruffin and Eldridge, JJ, concur. Andrews, P. J., concurs specially in part and dissents in part.

Andrews, Presiding Judge,

concurring specially in part, and dissenting in part.

I agree the trial court erred in granting summary judgment to Hanover, but not for the reasons stated in the majority’s opinion. I disagree with the majority’s conclusion that the trial court erred in granting summary judgment to RGA.

1. In Division 1, the majority ignores a long line of cases holding that the uncontroverted affidavit of the insurance company stating that it would not have issued the policy had the question on the application been answered truthfully is enough to sustain summary judgment. In Hanover’s motion for summary judgment, it claimed that due to a material misrepresentation on the application it was entitled to deny recovery under the policy. Hanover relied on OCGA § 33-24-7 which provides that misrepresentations and concealment of facts on an application for insurance shall not prevent a recovery under the policy unless they are (1) fraudulent; (2) material either to the acceptance of the risk or to the hazard assumed by the insurer; or (3) the insurer either would not have issued the policy or would not have issued the policy in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss if the insurer had known the true facts. Hanover submitted the affidavit of the director of underwriting, stating that if Hanover had known about Andrea Case’s driving record, the company would not have issued the policy.

In Sanders v. Southern Farm &c. Ins. Co., 174 Ga. App. 888 (332 SE2d 33) (1985), this Court held that the affidavit of the vice-president of underwriting stating that the insurer would not have issued the policy if the application had been truthfully completed, was sufficient to sustain the grant of summary judgment to the insurance company. Id. at 889. Accord Celtic Life Ins. Co. v. Monroe, 220 Ga. App. 38 (467 SE2d 360) (1996); Hopkins v. Life Ins. Co. of Ga., 218 Ga. App. 591 (462 SE2d 467) (1995); Taylor v. Ga. Intl. Life Ins. Co., 207 Ga. App. 341 (427 SE2d 833) (1993); Davis v. John Hancock &c. Ins. Co., 202 Ga. App. 3, 5-6 (413 SE2d 224) (1991). Further, whether or not the applicant acted in good faith in completing the application is immaterial. Hopkins, supra at 593; Taylor, supra at 342. It is likewise immaterial that the loss was occasioned by an unrelated cause concerning which there was no misrepresentation. Hopkins, supra at 593.

The one case cited by the majority in support of its holding that the affidavit is not enough, Pa. Life Ins. Co. v. Tanner, 163 Ga. App. 330 (293 SE2d 520) (1982), involved an affidavit by an underwriter stating that “it was the policy of the insurance company to participate in life insurance coverage in a sum no greater than 10 to 12 times the annual earned income of the insured.” Id. at 334. This is not the same as stating unequivocally that the company would not have issued the policy if the application were truthfully completed, and does not warrant ignoring the long line of cases cited above.

The trial court, in granting Hanover’s motion for summary judgment, concluded that because Case signed the application in blank and authorized the agent to complete the application for her, she was therefore bound by it. As shown by the cases discussed above, that is not the law.

Moreover, the case relied on by the trial court, Southern Guar. Ins. Co. v. Ragan Ins. Agency , 212 Ga. App. 690 (442 SE2d 871) (1994) is not applicable. The issue in that case did not involve an application for insurance filled out by an agent according to answers given him by the insured, and the document signed in blank was a financing application. Id. at 692.

But, Case argues on appeal that Hanover is estopped from denying coverage where the agent, either through fraud or negligence has filled in the application incorrectly. I agree.

Here, the application required the applicant to “State all Operators.” Case’s uncontradicted testimony is that she told the agent that her son, daughter and daughter’s fiancé would be operating the boat. Hanover denied Case’s claim because she did not list her daughter as an operator of the boat.

The other question at issue on the application was: “Has any member of the household had a motor vehicle or boating accident or loss or been convicted of a moving violation within the past 5 years?” The answer “no” was checked on the application. At her deposition, Case was asked if she had a moving violation within three years of the application and she replied, “no. . . .”

Q Okay. So that is, then, correct as far as you? [sic]
A Yes, and it would have been correct for my children, too, because I didn’t know of any violations they had.
Q I thought you told me you were aware of two that she had. Are you saying they were beyond the three-year mark?
A After USAA told me that they would not cover because of her two — her — they didn’t even tell me “speeding.” I think they said because of her vehicle report, and then I asked — I confronted my daughter with it, and she told me she had had two speeding tickets. This is after USAA had declined me insurance because of my daughter’s driving record. That’s when I confronted my daughter with it, and she told me she had had two speeding tickets.
Q When you spoke on the phone with the agency, and she asked you who were going to be the operators, you told her you were primary and your son and daughter and her fiancé. Is that your testimony?
A Yes.
Q Did the lady then ask you about moving violations in the last three years for any or all of those people?
A She was reading these questions to me. I didn’t have this in front of me, so I can’t remember verbatim what she asked me as far as moving violations.
Q I only want you to tell me what you remember. Is it your testimony that you do not remember whether or not she asked you about violations?
A She must have asked me and I said no, but — I was not aware of any violations.
Q Okay. So if I understand you correctly, she did ask you about violations, and you said no, and as far as you knew then, that was correct [?]
A Yes, that’s correct.

Case later submitted an affidavit in which she amplified and explained her answers to these questions, stating that the agent read the questions to her over the phone, she did not have a copy of the questions in front of her, she did not remember verbatim what the agent asked her, she speculated that the agent must have asked her the question about the moving violations, but she honestly could not recall whether the agent asked her or not.

Liberty Nat. Life Ins. Co. v. Houk, 248 Ga. 111 (281 SE2d 583) (1981) is on point and supports Case’s argument that Hanover is estopped from denying coverage. In Houk, the insured signed the application after the agent had filled in the answers but did not notice that the answers were marked incorrectly. Here, Case never saw the application and was not sent a copy of the application until after the accident with the boat.

The court in Houk relied on Stillson v. Prudential Ins. Co. of America, 202 Ga. 79 (42 SE2d 121) (1947) which also held the insurance company was estopped from denying coverage when the agent took down the answers untruthfully. In Stillson, the agent took down the answers for the insured and gave the insured the application to sign, covering the application with his hands, except for the signature line. The court held that if the insured was deceived by the agent and was ignorant that the application contained false answers, the insurance company was estopped from seeking to avoid liability on the policy. Id. at 83.

Likewise, in Tallent v. Safeco Ins. Co. of America, 99 Ga. App. 11 (107 SE2d 331) (1959), this Court reversed the trial court’s grant of a directed verdict for the insurance company. In that case, the company’s agent testified that she asked the plaintiff all the questions on the application for car insurance and filled out the answers in pencil. Then, in order to have a neater application, she had the plaintiff sign a blank application and typed in the answers contained in the pencil-written application.

The plaintiff testified that the only question the agent asked him was whether any person under the age of 25 would be driving the automobile. This Court held that if the jury had believed plaintiff’s version of events it would be authorized to find in favor of the plaintiff. Id. at 12. Moreover, the plaintiff was under no duty to examine the copy of the application he took to the bank because he was entitled to rely on the agent’s filling out the application correctly. Id. at 13.

It is true that: “An applicant is prima facie charged with knowledge of the contents of an application signed by him, but this may be rebutted.” Jessup v. Franklin Life Ins. Co., 117 Ga. App. 389, 391 (2) (160 SE2d 612) (1968).

With regard to whether one who signed the application may escape the consequences of an agent inserting untruthful answers therein, some of the cases have enunciated the principle that: Where an application is signed in blank and authority given by applicant to the agent of the company to fill out the application from information given him, any false answers inserted in the application, which is attached to and made a part of the policy issued, unless inserted by a misleading device or artifice perpetrated by such agent, will be binding on the applicant.

(Citation and punctuation omitted.) O’Kelly v. Southland Life Ins. Co., 167 Ga. App. 455, 456 (305 SE2d 873) (1983).

In O’Kelly, the plaintiff’s wife signed a blank application, and the life insurance company tried to deny coverage after she died, claiming that the application contained false answers to some questions which were material to the risk involved in issuing the insurance. Id. at 455. The court in O’Kelly, after acknowledging the above-quoted rule concerning applicants who sign a blank application, then went on to cite Houk, supra, Stillson, supra, and Tallent, supra, among others, and concluded that the insurance company was not entitled to summary judgment under these holdings. O’Kelly, supra at 458.

Likewise, in Browning v. Davis, 167 Ga. App. 393 (306 SE2d 40) (1983), the insured argued that the agent never asked him whether he had previous fire losses within the past three years. The agent contended the question was asked, answered and correctly recorded. Therefore, this Court held the issue should have been submitted to a jury for determination. Id. at 395.

Here, there is no evidence from the agent as to whether or how she asked the questions and whether she filled in the answers correctly. Hanover and RGA do not dispute on appeal that the application was incorrectly filled out. Case’s uncontradicted deposition testimony is that she told the agent that there would be other operators; namely, her son, daughter and daughter’s fiancé. Case does not remember answering the question about moving violations of other members of her household, or even whether the agent asked her about the violations of other members of the household.

Therefore, construing the evidence in the light most favorable to Case as nonmovant, there is enough evidence that material misrepresentations were made to raise an issue as to whether the agent negligently or fraudulently completed the application. Thus, there is a jury issue as to whether or not Hanover was estopped from denying coverage on the boat. The trial court erred in granting Hanover’s motion for summary judgment.

2. I cannot join in Division 2 of the majority’s opinion because this issue was never raised in the trial court. Case never stated, either in her deposition or her affidavit, that she did not understand the term “household” as it was used in the insurance application. Indeed, her deposition testimony as set out above, is the only instance where the question is discussed, and Case’s answer clearly shows that she understood the meaning of the word “household.” Moreover, on appeal, Case does not point to, nor do we find, anywhere in the record which shows this issue was before the trial court.

Issues presented for the first time on appeal present nothing for us to review. This is a court for the correction of errors at law committed by the trial court where proper exception is taken. Angell v. Hart, 232 Ga. App. 222, 223 (2) (501 SE2d 594) (1998). Therefore, we cannot consider this argument on appeal.

3.1 dissent to the majority’s conclusion in Division 3 that RGA is not entitled to summary judgment. This Court has consistently held that while the insured may have a cause of action against the insurer for coverage, there is no authority that an applicant may recover from the agent for fraud in making material misrepresentations to induce an insurer to provide coverage which the applicant could not otherwise obtain.

Therefore, the one injured due to the misrepresentations on the application is the insurance company, not Case, who was the beneficiary of the alleged fraud or negligence. James, Hereford & McClelland v. Powell, 198 Ga. App. 604, 606 (402 SE2d 348) (1991). Accord Bolin v. Mass. Indem. & Life Ins. Co., 203 Ga. App. 570, 573 (3) (417 SE2d 325) (1992). See also Garrett v. Life Ins. Co. of Ga., 221 Ga. App. 315, 320 (471 SE2d 262) (1996).

Decided July 8, 1999

Kristopher Shepherd, for appellant.

Mozley, Finlay son & Loggins, Robert M. Finlayson II, Edward C. Bresee, Lokey & Smith, Malcolm Smith, Jon W. Burton, for appellees.

The cases cited by plaintiff are not to the contrary. In BSF, Inc. v. Cason, 175 Ga. App. 271 (333 SE2d 154) (1985), decided before Powell, the agent appealed following a trial, claiming no expert evidence was introduced establishing the standard of care followed in the insurance industry and whether the agent deviated from this standard. Therefore, this Court was presented with a different issue on appeal than the one before us in this case. Id. at 272-273. Likewise, in Charles Parrott & Assoc. v. Hunt, 167 Ga. App. 106 (305 SE2d 879) (1983), the claim against the agent was for failure to notify the insurance company to add coverage for a trailer destroyed in a wreck. Id.

The only case cited by the majority, Beaver Ins. Agency v. Roland, 135 Ga. App. 263 (217 SE2d 484) (1975), is not applicable. That case holds that an independent insurance agent is personally liable for a breach of contract to procure insurance. Id. Therefore, in light of the above, the trial court did not err in granting RGA’s motion for summary judgment.

       While the dissent correctly points out that this Court cannot consider arguments raised for the first time on appeal, we are not being asked to do so here. This enumeration of error instead questions the impact of a recent whole court decision which is relevant to an issue that was before the trial court, i.e., whether a response in Ms. Case’s insurance application voided her policy of insurance. We address this enumeration of error because it is this Court’s function on appeals from the grant of summary judgment to examine the record de novo and determine whether the allegations of the pleadings have been pierced so that no genuine issue of material fact remains. Ga. Farm &c. Ins. Co. v. Shook, 215 Ga. App. 66, 67-68 (449 SE2d 658).

       As previously stated, neither Hanover nor RGA ever sent Case a copy of the application. We agree with Hanover that there is no requirement that the application be made a part of the policy except where the policy is one for life insurance. OCGA § 33-25-2. That, however, is not the issue. Hanover cannot cite life insurance company cases in support of its position, and then argue that they were not required to attach a copy of the application to the policy.

       Although Case stated in her affidavit “I could have called other insurers and obtained coverage but I did not believe that was necessary,” this is not evidence that Case could have procured other insurance. The only evidence before us is that neither USAA, Case’s automobile insurance company, nor Hanover, would have insured the boat due to the driving records of Case’s children.

       Hanover files a cross-claim against RGA for indemnification; however, that issue is not before us in this appeal.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A99A0292.
    COLLINS v. THE STATE.
    (520 SE2d 542)
   Pope, Presiding Judge.

Thomas Orlando Collins appeals from his convictions for various violations of the Georgia Controlled Substances Act and of possession of a firearm during the commission of a crime. In his sole enumeration of error, he raises an argument based on Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), claiming the trial court erred in overruling his challenge to the State’s peremptory strike because the court did not require the State to present an explanation for the strike that was case-related. We find no error in the trial court’s actions and affirm.

Defendant Collins is African-American. Only one of the venire persons, Mr. Morris, was African-American. Jury selection was not reported, but the parties entered into a stipulation, which set forth that during jury selection, Morris indicated that he was an attorney practicing law in his own law firm in Clayton County. Morris also indicated that before passing the bar he was employed as a law clerk for a private attorney.

The State used one of its peremptory strikes against Morris and Collins objected on the basis of Batson, alleging a racial motivation. The trial court found a prima facie case had been made that the State’s strike was the result of race. In response, the State then asserted that the strike was motivated solely by the fact that Morris was a practicing attorney. The State also noted that Morris was the only practicing attorney in the jury pool. Although Collins objected to this explanation, the court found that the State’s reason for the strike was race-neutral.

Here, Collins argues that the court erred in overruling his challenge to the State’s peremptory strike of Morris, the only African-American venireperson, in that it did not require the State to present an explanation for the strike that was case-related.

The Equal Protection Clause of the U.S. Constitution prohibits discrimination injury selection on the basis of race or gender, or the assumption that a venireperson will be biased in a particular case for no reason other than the person’s race or gender. Thus, the ultimate issue in a Batson challenge is whether discrimination occurred in the selection of the jury. The opponent of the peremptory strike bears the burden of persuading the trial court that the proponent of the strike acted with discriminatory intent in exercising the peremptory challenge. The party challenging the peremptory strike makes out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Once a prima facie case is made, the proponent of the strike is required to set forth a race-neutral, case-related, clear and reasonably specific explanation for the exercise of the peremptory strike. An explanation is not racially neutral if it is based on a characteristic that is peculiar to any race or a stereotypical belief. It is then for the trial court to determine, after considering the totality of the circumstances, whether the opponent of the strike has shown that the proponent of the strike was motivated by discriminatory intent in the exercise of the peremptory challenge.

Decided July 8, 1999.

Barry M. Hazen, for appellant.

(Citations and punctuation omitted.) Turner v. State, 267 Ga. 149, 150-151 (2) (476 SE2d 252) (1996). See also Barnes v. State, 269 Ga. 345, 349 (6) (496 SE2d 674) (1998).

In this case, the trial court determined that Collins established a prima facie showing of discrimination. Thus, the burden was then on the State to offer a race-neutral explanation for the strike. The State offered the race-neutral reason that Morris was a practicing attorney. The trial court accepted the State’s reason as race-neutral and there was no showing that this explanation was merely pretextual.

In Pye v. State, 269 Ga. 779, 781 (1) (505 SE2d 4) (1998), our Supreme Court rejected the defendant’s Batson claim when the State exercised a peremptory strike partly because the prospective juror’s son was a public defender. The court stated that “this reason is also sufficient to justify a peremptory strike, because the explanation was neither inherently discriminatory nor implausibly pretextual.” Id. at 781 (1). Accordingly, in this case, looking at the totality of the circumstances, we find that the court’s ruling was not clearly erroneous. See generally Joseph v. State, 231 Ga. App. 399 (1) (498 SE2d 808) (1998).

In reaching this conclusion, we are mindful that the requirement that an explanation given for a strike be “race-neutral” seems to have subsumed the requirement that a case-related reason be articulated by the proponent of the strike. See Barnes v. State, 269 Ga. at 349 (6); Chandler v. State, 266 Ga. 509, 510 (2) (467 SE2d 562) (1996); Malone v. State, 225 Ga. App. 315, 318 (1) (484 SE2d 6) (1997); Williams v. State, 236 Ga. App. 190 (1) (511 SE2d 561) (1999). Nevertheless, case-relatedness, or lack thereof, continues to be a consideration in the trial court’s determination of whether a proffered explanation is race-neutral. See, e.g., Ware v. State, 232 Ga. App. 165, 166 (2) (500 SE2d 601) (1998).

Judgment affirmed.

Smith and Eldridge, JJ, concur.

William T McBroom III, District Attorney, Richard A. Vandever, Assistant District Attorney, for appellee.

       For discussion of this issue before issuance of Supreme Court of Georgia cases which indicated that the case-related reason need not be articulated, see Parker v. State, 219 Ga. App. 361, 364-365 (464 SE2d 910) (1995) (Pope, Presiding Judge, concurring specially).


text:
    A99A0346.
    PENDARVIS CONSTRUCTION CORPORATION et al. v. COBB COUNTY-MARIETTA WATER AUTHORITY et al.
    (520 SE2d 530)
   Pope, Presiding Judge.

A jury returned a verdict of $5,826 in favor of Pendarvis Construction Corporation in a condemnation action involving an easement for an underground water line over its property sought by Cobb County-Marietta Water Authority (the “Water Authority”). Pendarvis appeals and contends a jury charge impermissibly shifted the burden of proof and the court erroneously excluded certain material evidence.

1. The court instructed the jury with regard to the burden of proof as follows:

The law puts the burden of proof upon the condemnor to prove by a preponderance of evidence what amount of money constitutes just and adequate compensation for the property taken and that all material allegations made in the condemnor’s pleadings are true except such allegations as are admitted by the owner in its pleadings or in open court.
Those contentions admitted by the owner will be taken to be true without the necessity of the proof. Those allegations, neither admitted nor denied, must likewise be proven. While the burden of proof is upon the condemning authority, the owner of the property is also allowed to offer evidence upon the issues involved, and you must determine the issues in the case by the preponderance of evidence as you find it to be.
The condemnor must prove its case by what is known as a preponderance of the evidence. That is evidence upon the issues involved which, while not enough to wholly free the mind from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than the other.

The court then instructed the jury on credibility, expert testimony, and several other matters including determining value of the property. Then the court gave this instruction: “The condemnee bears the burden of showing the amount of any additional damages with a reasonable degree of certainty. The amount of compensation for such additional damages cannot be left to speculation, conjecture or guess work by the jury.”

The charge regarding the burden on the condemnee was erroneous. Lewis v. State Hwy. Dept., 110 Ga. App. 845 (140 SE2d 109) (1964). In Lewis, the court gave a charge which concluded with the following:

where the condemnee asserts the compensation to be paid, to which she is justly entitled, is greater than that shown by the condemnor’s evidence, then the law places upon her likewise the burden to prove by a preponderance of the evidence that such assertion on her part is true.

Id. at 846. The court in Lewis, held that this charge impermissibly shifted the burden of proof from the condemnor. “The burden of proving value and damages never shifts from the condemnor, though a burden of producing evidence may arise on the part of the condemnee when he asserts the greater value or damage.” Id. at 845 (1) (b). See also Dawson v. Dept. of Transp., 203 Ga. App. 157, 158-159 (416 SE2d 163) (1992).

The Water Authority argues that the charge given is consistent with Lewis because it only explains that Pendarvis had the burden of producing evidence to support its claim. Id. Although the charge as given used the phrase “burden of showing” instead of “burden of proving,” we conclude the two are confusingly similar in this setting. In Ga. Power Co. v. Smith, 94 Ga. App. 166 (1) (94 SE2d 48) (1956), the court explained the difference between the burdens on the parties in a condemnation action, and in so doing said, “In a case where the power of eminent domain is exercised, the burden is on the con-demnor to show the value of the property taken and the consequential damages to the remainder of the property.” Thus, the word “show” was used to describe the condemnor’s burden. Its use here certainly suggests that the condemnee had the burden. The charge used in this case then required Pendarvis to make this showing “with a reasonable degree of certainty.” This phrase also suggests a burden of proof. See Herr v. Withers, 237 Ga. App. 420 (515 SE2d 174) (1999) (improper charge on reasonable degree of medical certainty).

The Water Authority contends Dept. of Transp. v. Bird, 158 Ga. App. 369 (280 SE2d 394) (1981) sanctions the charge given in this case. In that condemnation case, this court stated:

Where a party seeks additional damages he has the burden of proof of showing the amount of loss in a manner from which the jury or the trial judge in a non-jury case can calculate the amount of the loss with a reasonable degree of certainty.

Id. at 370. However, none of the three cases cited for the proposition are condemnation cases. The court in Bird continued its reasoning and stated that once the condemnor showed a prima facie case, “the burden then fell upon the [condemnee] to show that the [con-demnor’s] proof of value was inadequate.” Bird, 158 Ga. App. at 371.

This statement is not consistent with condemnation law. See Lewis, 110 Ga. App. at 845; Dawson, 203 Ga. App. at 157. The burden of proof in a condemnation case never shifts and Bird states that it does. As explained by the Supreme Court,

While there are involved [in a condemnation action] such matters as requiring the condemnor to make proof against its interest and the necessity for evidence to authorize the amount found for the condemnee — which would suggest that the condemnee should have the burden of proving injury, however, the basic and controlling requirement is the constitutional command that, before such taking of private property for public use, the taker must first pay therefor, and this burdens the taker to prove the value thereof.

Ga. Power v. Brooks, 207 Ga. 406, 411 (4) (62 SE2d 183) (1950). We therefore disapprove of using the language in Bird as the basis for a jury charge regarding the burden of the condemnee. We further criticize West v. Dept. of Transp., 176 Ga. App. 806, 809 (2) (338 SE2d 45) (1985) to the extent it appears to sanction the holding in Bird.

Even taken as a whole, the charge given impermissibly placed the burden of proof on Pendarvis to show a value greater than offered by the Water Authority. As such, it was error to give the charge.

2. During the charge conference, Pendarvis stated it had no objection to any of the Water Authority’s proposed jury charges. After the court charged the jury, Pendarvis stated it had no objection to the whole charge as given. Failure to object to an instruction before the jury returns its verdict generally results in a waiver of any defects in the charge. OCGA § 5-5-24 (a); Bryant v. Housing Auth. of City of Atlanta, 121 Ga. App. 32 (2) (172 SE2d 439) (1970); Pope v. Goodgame, 223 Ga. App. 672, 675 (3) (c) (478 SE2d 636) (1996). However, “the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.” OCGA § 5-5-24 (c).

“A charge ‘harmful as a matter of law’ is one that is blatantly apparent and prejudicial to the extent that it raises the question of whether the losing party has, to some extent at least, been deprived of a fair trial because of it, or a gross injustice is about to result or has resulted directly attributable to the alleged errors.”

(Citations and punctuation omitted.) Shilliday v. Dunaway, 220 Ga. App. 406, 411 (8) (469 SE2d 485) (1996); Bryant, 121 Ga. App. at 32 (2).

The error in this case was an error of law and it was prejudicial because it went to the primary issue in the case, the value of the property. The charge shifted the burden of proof on that issue, and the jury awarded only $426 more than the $5,400 sought by the Water Authority, less than one-half of one percent of what Pendarvis sought over and above that amount. Thus the charge may well have affected the outcome of the case and deprived Pendarvis of a fair trial. The charge was not corrected by the charge as a whole. It was separated from the earlier charge giving the Water Authority’s burden and it may have taken on an importance in the jurors’ minds separate from the earlier charge. Compare Trustees of Trinity College v. Ferris, 228 Ga. App. 476, 481 (8) (491 SE2d 909) (1997) (no substantial error in whole charge, absent objection).

3. Pendarvis contends the court erred in refusing to allow certain testimony. Frank Pendarvis, who was representing the corporation, was allowed to testify extemporaneously in support of his case. At one point in his monologue, he appeared to begin to discuss the use of one of two prior easements on the property. The Water Authority objected on the grounds that there was no issue regarding the use of the prior easements; the only issue in the case was value. The court sustained the objection on those grounds.

The court has wide discretion to admit testimony of questionable relevance and we cannot say the court committed reversible error. Mosier v. State, 218 Ga. App. 586, 587 (462 SE2d 643) (1995). Further, Pendarvis made no proffer of the excluded evidence and this court cannot determine the propriety of the trial court’s ruling without a proffer of the excluded evidence or testimony. Spruell v. Smith, 185 Ga. App. 484 (1) (364 SE2d 594) (1987); Wright v. State, 216 Ga. App. 486 (2) (455 SE2d 88) (1995).

Judgment reversed.

Johnson, C. J., McMurray, P. J., Andrews, P. J., Blackburn, P. J., Smith, Ruffin, Eldridge and Barnes, JJ, concur.

Decided July 8, 1999.

Cochran, Camp & Snipes, Scott A. Cochran, for appellants.

Frank Pendarvis, pro se.

Talley & Darden, David P. Darden, for appellees.

        Hayes v. Flaum, 138 Ga. App. 787 (227 SE2d 512) (1976) (landlord-tenant dispute); Taylor v. Roberson, 127 Ga. App. 24 (192 SE2d 384) (1972) (automobile collision); Studebaker Corp. v. Nail, 82 Ga. App. 779 (62 SE2d 198) (1950) (breach of automobile warranty).


author: POPE, Presiding Judge.

text:
    A99A0397.
    THAXTON v. NORFOLK SOUTHERN RAILWAY COMPANY et al.
    (520 SE2d 735)
   POPE, Presiding Judge.

After Larry Thaxton was diagnosed with lung cancer, he brought this suit against Norfolk Southern Railway Company and its subsidiary, Alabama Great Southern Railway Company, alleging injury from second-hand smoke. He sued the defendants under the Federal Employers’ Liability Act (“FELA”), 45 USC § 51 et seq., claiming that his cancer was caused by the environmental tobacco smoke generated by his co-workers when he stayed in sleeping trailers while working on the railroad’s tracks and railyards. After the complaint was filed, Larry Thaxton died. His widow moved to add Norfolk Southern Corporation (“NSC”) and Norfolk & Western Railway Company as defendants. The trial court denied the motion, and we granted the interlocutory application to determine whether the court’s denial of the motion to add these parties was proper. For the following reasons, we reverse.

The complaint was originally filed on February 12, 1996, by Larry Thaxton, who named as defendants Norfolk Southern Railway and Alabama Great Southern Railway Company. Larry Thaxton claimed that he began working for Norfolk Southern Railway or its subsidiary, Alabama Great Southern Railway Company in 1982. He alleged that defendants failed to provide him with a reasonably safe place to work in that he was repeatedly exposed to second-hand cigarette smoke. He also claimed that defendants’ medical agents failed to inform him in a timely fashion about a spot on his lung which they found during a lung X-ray and that because of this delay, the cancer grew and spread undetected in his body.

Although Larry Thaxton initially sued only Norfolk Southern Railway, discovery revealed that it was NSC which was entirely responsible for decisions relating to the no-smoking policy. It was undisputed that Norfolk Southern Railway was not involved in determining the no-smoking policy, and that the railway simply implemented the policy which NSC set.

Accordingly, on June 5, 1997, Larry Thaxton filed a motion to add NSC as a party defendant. In the motion, he asserted that all of the decisions relating to the no-smoking policy were made by NSC and that, accordingly, NSC was liable under FELA. NSC opposed the motion by filing the affidavit of Sandra Pierce, the assistant corporate secretary of NSC, in which she avowed that NSC was not registered as an operating common carrier by rail and that it did not own any rolling stock used to perform common carrier operations by rail in any other state. She further stated that NSC did not operate any trains or employ any people to operate trains. She stated that NSC was a holding company which owned stock in various transportation companies, and that it was the owner of all of the outstanding common stock of Norfolk Southern Railway, which in turn owned all of the outstanding common stock of Norfolk & Western Railway.

Based on the railway’s position, on September 22, 1997, Larry Thaxton’s widow, Jacqueline Thaxton, individually and as adminis-tratrix of the estate of Larry Thaxton, filed another motion to add NSC. Thaxton’s theory was that NSC promulgated policies regarding environmental tobacco smoke which harmed the decedent and that it was liable for failure to provide a reasonably safe workplace. In the motion, Thaxton argued that common law remedies against NSC were appropriate based on the previous representations that NSC was not her husband’s “employer” within the meaning of FELA. Thaxton claimed that because NSC was not her husband’s employer, it could be sued under common law for various damages, including punitives and loss of consortium. Thaxton attached to her motion the affidavit of the NSC corporate secretary avowing that in various respects NSC was not a “common carrier” subject to FELA.

With the motion, Thaxton also attached a copy of her proposed amended complaint in which she claimed that NSC was liable for her husband’s wrongful death. Thaxton alleged that NSC failed to adopt a policy which would have protected her husband from the effects of environmental smoke; failed to implement a no-smoking policy; and failed to inform her husband of the presence of a cancerous spot on his lung. The complaint also alleged that NSC acted wilfully and wantonly.

1. Thaxton argues that the court erred in denying her motion to add NSC as a party. Thaxton asserts that neither she nor the railway argues that FELA applies against NSC; instead she contends that NSC is liable under common law. She argues that as the entity responsible for promulgating the relevant no-smoking policies, NSC was liable for negligence under state law. Thaxton claims that despite its awareness of the hazards of smoking, NSC consistently refused to adopt a no-smoking policy and that she should be allowed to sue NSC under common law and recover various damages which are unavailable under FELA. See generally Central of Ga. R. Co. v. Swindle, 260 Ga. 685, 686 (398 SE2d 365) (1990).

The railroad argues that Thaxton is seeking to circumvent the purpose and exclusivity provisions of FELA. It contends that it is well settled that FELA is the sole and exclusive remedy for injured employees of rail carriers engaged in interstate commerce. Nevertheless, Norfolk Southern argues that though NSC was not Larry Thax-ton’s employer, NSC is in “vertical privity” with it, and that Thaxton is therefore barred from asserting a common law claim against NSC. In other words, on the one hand, Norfolk Southern argues that the remedies under FELA are the exclusive remedies available to Thax-ton; on the other hand, Norfolk Southern argues that FELA is not available to Thaxton in this suit.

We agree with Thaxton that NSC is not immune from suit and that one of these arguments must fail. Despite its creative efforts to protect itself, as promulgator of the policies at issue in this case, NSC is subject to suit. The question thus becomes, is Thaxton’s remedy under common law or under FELA?

“It is well established that in enacting FELA, Congress superseded state law remedies in the subject area covered by FELA and provided the exclusive remedy for employees of common carriers injured by the negligence of their employers.” (Citations and punctuation omitted.) Bowers v. Estep, 204 Ga. App. 615, 616 (1) (420 SE2d 336) (1992). See generally 45 USC § 51 et seq. Thus, in cases in which a plaintiff alleges that a defendant common carrier is liable for acts occurring in the course of the plaintiff’s employment with a railroad, a common carrier engaged in interstate commerce, FELA provides the exclusive remedy for the plaintiff’s claims that fall within the terms of the Act. Bowers v. Estep, 204 Ga. App. at 616 (1).

45 USC § 51 provides that it applies to “[e]very common carrier by railroad while engaging in commerce.” Here, both parties claim that FELA does not apply because NSC is not a “common carrier” within the meaning of the act. In support of its position that NSC is not a “common carrier,” the railway cites Edwards v. Pacific Fruit Express Co., 390 U. S. 538, 543 (88 SC 1239, 20 LE2d 112) (1968) (refrigerator car company which leased refrigerator cars to railroads and controlled these cars was not “common carrier”); Wells Fargo & Co. v. Taylor, 254 U. S. 175, 187 (3) (41 SC 93, 65 LE 205) (1920) (express company was not “common carrier”; term means “one who operates a railroad as a means of carrying for the public”); Kelly v. Gen. Elec. Co., 110 FSupp. 4, 8 (E.D. Pa. 1953) (General Electric Company, which was engaged in manufacture and sale of electrical equipment, was not a “common carrier by railroad”); and Malvern Gravel Co. v. Mitchell, 385 SW2d 144, 148 (Ark. 1964) (gravel company was not a “common carrier”). While these cases discuss the definition of a “common carrier,” they are not dispositive of the question raised here: whether a parent holding company is a “common carrier” and, thus, liable under FELA for its subsidiary.

45 USC § 57, which neither party cites, provides the critical definition of “common carrier” for purposes of FELA. That section states that the “term ‘common carrier’ as used in this chapter shall include the receiver or receivers or other persons or corporations charged with the duty of the management and operation of the business of a common carrier.” (Emphasis supplied,)

Davis v. Alexander, 269 U. S. 114 (2) (46 SC 34, 70 LE 186) (1925), provided guidance regarding subsidiary railroads, stating: “[w]here one railroad company actually controls another and operates both as a single system, the dominant company will be liable for injuries due to the negligence of the subsidiary company.” Id. at 117. Using the same test as to whether the dominant company actually controls and operates the subsidiary, the court in Southern R. Co. v. Crosby, 201 F2d 878 (4th Cir. 1953), found that the injured railway worker was an employee of the dominant railroad. In so finding, the court quoted a previous case, stating:

The mere fact that the [dominant company] owned most of the [subsidiary company] stock did not answer the question, but it assisted; and when to that fac[t] was added the subordinate carrier’s method of getting engines, arranging and dispatching trains, and using terminals, there was enough uncontradicted evidence to justify the jury (and in our opinion the court) in holding that the interstate commerce of the Erie System — i.e., of several co-ordinated and centrally controlled carriers — was in acquisition and performance one commerce belonging to the master company. It matters not what we assume the earnings of the controlled railways to have been kept separate and apart. . ., for such earnings were the result of work done for and under the dominant corporation, and as much a part of the latter’s business as are the several departments of the modern store, a part of the store business, though each department is owned by its manager, who is not liable for the store’s debts.

(Punctuation omitted.) Id. at 882.

Similarly, in Eddings v. Collins Pine Co., 140 FSupp. 622 (D.C. Cal. 1956), the court concluded that a lumber company, which wholly owned and controlled the railroad corporation, was a “common carrier” under FELA. The court stated:

[t]here is no reason why a non-railroad parent company which completely dominates a railroad subsidiary, not only as to stock ownership, but also as to management and operation, should not be held responsible under the Act for negligent injuries to employees of the parent company while performing the railroad duties of the subsidiary.

Id. at 628. See also Specht v. Missouri Pacific R. Co., 191 NW 905 (Minn. 1923) (the court examined the law regarding the dominant corporation acting as a principal and the subsidiary acting as the agent); Lone Star Steel Co. v. McGee, 380 F2d 640 (5th Cir.), cert. denied, 389 U. S. 977 (88 SC 480, 19 LE2d 471) (1967) (court determined that steel corporation which maintained a plant railroad was subject to FELA where a network of tracks was located within the plant and connected to an interstate track operated by a common carrier); compare In re Chicago, Missouri &c. R. Co., 133 BR 438, 441 (N.D. Ill. 1991) (shell corporation which owned no rail lines, real property, railroad cars, or any other assets was not “common carrier by railroad”).

“Ordinarily, stockholder and parent corporations are not liable for a corporation’s debts.” Selser v. Pacific Motor Trucking Co., 770 F2d 551, 554 (5th Cir. 1985). Nevertheless,

[t]he FELA specifies when a contract or contract-like “device” may be set aside: “Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void. . . .” 45 U.S.C. § 55.

Id. Although stock ownership is not decisive, nor is the right to set general policies determinative, there are many indications here that NSC so dominated Norfolk Southern Railway that it should be deemed a common carrier for purposes of FELA. This result would be consistent with other cases in Georgia in which NSC has been a party to FELA cases. See, e.g., Loyal v. Norfolk Southern Corp., 234 Ga. App. 698 (507 SE2d 499) (1998); Norfolk Southern Corp. v. Smith, 262 Ga. 80 (414 SE2d 485) (1992); Norfolk Southern Corp. v. Decubas, 260 Ga. 136 (390 SE2d 216) (1990).

Under 45 USC § 57, it appears that NSC was “charged with the duty of the management and operation of the business” of Norfolk Southern Railway. There is evidence in the record that NSC maintains a medical department, law department, and a labor relations department, which together created the no-smoking policy. The chairman of NSC was ultimately responsible for the final decisions relating to the no-smoking policies. The record also contains a 300 plus page manual regarding “Safety and General Conduct Rules,” which NSC issued for its “railway subsidiaries.” Nevertheless, Thax-ton designated that only certain portions of the record be forwarded to this court. The original motion regarding adding NSC as a party under FELA theory was not designated as part of the record on appeal, and the parties do not address this issue here. There is no evidence before us regarding the corporate structure of NSC or of Norfolk Southern Railway. There is no evidence regarding the companies’ boards of directors, the respective earnings and expenses of the companies, or of any agreements regarding company management between the companies. Moreover, we do not have the parties’ arguments regarding this issue. In short, we do not have before us a record which would allow us to decide whether NSC should be considered a “common carrier” for purposes of FELA.

In the event that FELA does not apply, then Thaxton may sue NSC under common law. See generally Copper River &c. v. Heney, 211 F. 459 (9th. Cir. 1914); Gilbert v. CSXTransp., 197 Ga. App. 29, 32-33 (3), (4) (397 SE2d 447) (1990). Certainly, there is no basis on which to conclude that NSC would be absolutely immune from suit in this case.

Accordingly, we conclude that the court abused its discretion in failing to grant Thaxton’s motion to add NSC as a party. In light of NSC’s exclusive role in setting the policy of which Thaxton complains, the court should have allowed NSC to be added as a party. See generally OCGA § 9-11-19. Upon the return of this case to the trial court, Thaxton should be allowed to add NSC as a party defendant to the suit. The court should then conduct a hearing with appropriate evidence of the corporate structures presented in order to determine if NSC dominates Norfolk Southern sufficiently to be considered a “common carrier” for purposes of FELA. In the event that the court determines that NSC is not a “common carrier” for purposes of this FELA action, Thaxton should be allowed to proceed under common law against NSC.

2. Thaxton claims that the trial court erroneously denied her motion to preclude Norfolk Southern from attacking the medical link between environmental tobacco smoke and lung cancer based on the doctrine of judicial estoppel. This argument is based on documents from 1989 in which the railway acknowledged the causal link between environmental tobacco smoke and lung cancer. Thaxton claims that the railway should now be estopped from asserting any inconsistent position.

The statement on which Thaxton’s motion is based was made in 1989 during a dispute regarding NSC’s implementation of a no-smoking policy. The Transportation-Communications International Union and NSC and its subsidiary railroads appeared before the Public Law Board for a resolution of the dispute about the no-smoking policy. In defense of its no-smoking policy, NSC stated that such a workplace ban was “both reasonable and necessary to protect all NS employees, customers, and guests against the demonstrated health risks associated with ambient (‘second-hand’) tobacco smoke.” NSC stated: “[m]edical evidence has conclusively established that the inhalation of second-hand smoke (‘passive smoking) in the workplace causes disease, including cancer.” The affidavit of Dr. John Salb, the Director of Medical Services for NSC, was footnoted and included in the materials which NSC filed. Salb’s affidavit stated that according to the 1986 report of the Surgeon General, “disease risk due to the inhalation of tobacco smoke is not limited to the individual who is smoking, but can extend to those who inhale tobacco smoke emitted into the air.” More specifically, Dr. Salb stated that the Surgeon General had reached the conclusion that “[i]nvoluntary smoking is a cause of disease, including lung cancer, in healthy nonsmokers.”

Contrary to Thaxton’s arguments, we conclude that the trial court properly denied the motion to exclude evidence from the railway attacking the causal link between second-hand smoke and lung cancer. We first note that the relevant time period during which Thaxton claimed detriment from his exposure to second-hand smoke began in 1982 with the start of his employment for the railway. Thus, there are seven years before the railway’s “position” on second-hand smoke would even be relevant. More importantly, the assertions by Norfolk Southern in 1989 are not subject to judicial estoppel.

We first caution as to the semantical dangers which surround the term “judicial estoppel” and similar matters of issue preclusion. While a recent decision of this court has used the term (see In the Interest of K. M. H., 209 Ga. App. 194, 195 (2) (433 SE2d 117) [1993]), that case was not referring to exactly the same concept as involved here. Our earlier decision referenced a concept under Georgia law, while we are dealing here with a concept from federal law which has no exact equivalent under Georgia law.

Southmark Corp. v. Trotter, Smith & Jacobs, 212 Ga. App. 454, 455 (442 SE2d 265) (1994).

“The federal doctrine of judicial estoppel precludes a party from asserting a position in a judicial proceeding which is inconsistent with a position previously successfully asserted by it in a prior proceeding.” Southmark Corp. v. Trotter, 212 Ga. App. at 455.

The essential function and justification of judicial estoppel is to prevent the use of intentional self-contradiction as a means of obtaining unfair advantage in a forum provided for suitors seeking justice. The primary purpose of the doctrine is not to protect the litigants, but to protect the integrity of the judiciary. The doctrine is directed against those who would attempt to manipulate the court system through the calculated assertion of divergent sworn positions in judicial proceedings and is designed to prevent parties from making a mockery of justice through inconsistent pleadings.

(Citations and punctuation omitted.) Johnson v. Trust Co. Bank, 223 Ga. App. 650, 651 (478 SE2d 629) (1997).

In this case, the court properly found that the facts do not warrant application of the doctrine. The “position” to which Thaxton’s motion refers was Norfolk Southern’s position with respect to defending its no-smoking policy. This representation regarding the state of medical research was not a “position” in the sense required by the judicial estoppel doctrine, nor was the position “successful” or “sustained by the court” as the doctrine requires. The reevaluation of the medical evidence which the railway has undertaken in the instant case does not constitute the sort of manipulation of the judicial system which this doctrine seeks to address. In short, there was no evidence that Norfolk Southern Railway will gain an unfair advantage by introducing evidence attacking the causal link between tobacco smoke and cancer, and no judicial body has been misled by the railway’s previous position. Accordingly, the trial court did not abuse its discretion in denying Thaxton’s motion to exclude evidence attacking the causal link.

3. Thaxton claims that the court erred in denying her motion to determine the admissibility of the statements which were contained in the documents which were filed in 1989 with the Public Law Board. Thaxton argues that OCGA § 24-3-3 makes admissible certain admissions by counsel and that the representations of the attorneys for Norfolk Southern who prepared the documents were admissible as admissions of Norfolk Southern’s agents.

The court’s order regarding these documents is ambiguous, in that it is unclear whether the court was simply declining to determine the admissibility of the statements at this time, or whether the court was determining that the documents were not admissible. “The trial court has an absolute right to refuse to decide the admissibility of evidence, allegedly violative of some ordinary rule of evidence, prior to trial. The court may reserve ruling on the admissibility of evidence until it is offered during trial.” (Citations omitted.) Orr v. CSX Transp., 233 Ga. App. 530, 531 (3) (505 SE2d 45) (1998). Accordingly, there was no error in the court’s ruling.

Decided July 8, 1999.

Jones & Granger, John A. Moss, for appellant.

Nelson, Mullins, Riley & Scarborough, Richard K. Hines V, Richard B. North, Jr., for appellees.

Judgment reversed and case remanded with direction.

Smith and Eldridge, JJ, concur.

       It is not clear from the record when Thaxton died.

       Although Thaxton also sought to add Norfolk & Western Railway Company as a defendant, her arguments here relate solely to NSC, and we will not refer to Norfolk & Western here.


author: McMURRAY, Presiding Judge. ANDREWS, Presiding Judge,

text:
    A99A0443.
    BROWNING-FERRIS INDUSTRIES OF GEORGIA, INC. v. PITTS.
    (520 SE2d 539)
   McMURRAY, Presiding Judge.

Maijorie Pitts was severely injured after her car struck a residential trash container that rolled into her oncoming car’s traffic lane. This appeal followed entry of a favorable judgment for Pitts on a $200,000 jury verdict against the City of Canton’s (“the City”) waste management contractor, Browning-Ferris Industries of Georgia, Inc. (“BFI”). We affirm because the evidence authorizes the jury’s verdict.

The evidence adduced at trial, construed so as to uphold the jury’s verdict (Flournoy v. Brown, 226 Ga. App. 857, 861 (4) (487 SE2d 683)), reveals that BFI owned the trash container in question and assigned it for use (weekly curbside garbage pickups) at a residence adjacent to the collision scene; that the occupant of this residence placed the trash container in or near the roadway upon vacating the premises two weeks before the collision, and that this container obstructed traffic until the collision. The evidence also reveals that BFI employees serviced (emptied or checked) the trash container on two separate occasions before Pitts’ collision; that the container was “just over the [road’s] white line” a few hours before the collision, and that a truck swerved to avoid this hazard moments before Pitts’ car hit the container. Eyewitness testimony reveals that this truck’s maneuver somehow caused BFI’s wheel-equipped garbage can to roll directly into the path of Pitts’ car, and that road conditions at the time of the collision provided Pitts no safe opportunity for avoiding the hazard. Held:

BFI contends the trial court erred in denying its motions for directed verdict, arguing that the undisputed evidence shows that the occupant of the residence where the subject trash container was assigned was obliged to look after the container and was, therefore, solely responsible for the hazard which caused Pitts’ collision.

The threshold question of BFI’s legal duty toward Pitts cannot be assigned according to BFI’s or the City’s agreement with the occupant of the residence where the subject trash can was assigned. “The legal duty in this case arises out of the general duty one owes to all the world not to subject them to an unreasonable risk of harm.” Bradley Center v. Wessner, 250 Ga. 199, 201 (296 SE2d 693). The requisite inquiry is therefore whether, under the particular circumstances in the case sub judice, Pitts’ injuries can be fairly attributed to BFI’s conduct. That is, do the facts authorize the jury’s finding that BFI unreasonably exposed Pitts to a foreseeable risk of harm? See Ellington v. Tolar Constr. Co., 237 Ga. 235, 237-238 (227 SE2d 336). To this issue, we observe testimony indicating that BFI instructed its employees to watch out for and remove any BFI trash container they found in the roadway during their regular garbage collection activities and that BFI employees serviced the trash container in question (and presumably observed it in the roadway) two days before the collision, but that they did not then remove the hazard from the road. This evidence, and proof that BFI employees were or should have been aware that the subject trash can was in the roadway and obstructing traffic two days before the collision, authorizes the jury’s finding that BFI breached a common law duty to remove a foreseeable hazard from the roadway and that this failing was a proximate cause of Pitts’ damages. See Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 511 (317 SE2d 853). BFI’s argument that any negligence on its part was too remote to be a proximate cause of Pitts’ collision was a matter which was properly left for jury resolution. See id. Questions of negligence, contributory negligence, and proximate cause are, except in plain, palpable and indisputable cases, for the jury. Duncan & Stancil, Inc. v. Peden, 159 Ga. App. 77, 79 (282 SE2d 708).

The trial court did not err in denying BFI’s motions for directed verdict.

Judgment affirmed.

Pope, P. J., Smith, Ruffin and Eldridge, JJ, concur. Johnson, C. J., and Andrews, P. J., dissent.

ANDREWS, Presiding Judge,

dissenting.

Because I do not believe any alleged negligent act of Browning-Ferris Industries (BFI) was the legal causation of the accident in which Pitts was injured, I must respectfully dissent.

The only allegation of a negligent act against Browning-Ferris was that its employees “failed to place the refuse containers out of the roadway.”

In addition to the facts set out by the majority, the following facts, viewed with all inferences in favor of Pitts, the opponent of the motion for directed verdict, are important to consideration of this matter. BFI picked up refuse for residents of the City of Canton pursuant to a contract between it and the city, and residents paid the city for their trash service directly. While trash containers marked with the BFI logo were provided to residents, this was done only when requested by the city. If a resident moved, unless notified to pick up the can by the city, BFI left the trash can for the incoming resident.

Reinhardt Parkway, where the wreck occurred, was a two-lane road, twenty-four feet wide, making each lane approximately twelve feet wide. The road was fairly busy, particularly during rush hours. BFI’s weekly route on Reinhardt Parkway was run on Wednesday mornings, usually between 10:30 a.m. and 11:00 a.m. It was the homeowner’s responsibility to have their trash container at curbside for this pickup. After the pickup, it was the homeowner’s responsibility to remove the can from curbside within 24 hours. It was the policy of BFI and its practice that, if any driver or supervisor observed a can in the roadway, it would be removed from the roadway. The can involved in this accident had been empty for two weeks since the residents had moved, leaving the can by the curb. The can was last checked by BFI on their regular route the Wednesday morning before Thanksgiving.

Pitts, who lived approximately one mile from the accident site, cooked dinner for the McFarlands five days a week and drove to their house via Reinhardt Parkway each afternoon around 4:00 p.m. During the week of the accident, although she did not cook for them on Thursday (Thanksgiving), she did do so on the remaining days. When she drove to and from the McFarlands on Wednesday and to their home on Friday, the day of the accident, Pitts did not notice the BFI can in the roadway. As she was returning home Friday at dusk, with her headlights on, she hit the can, which was totally in her lane of traffic. Foster, who lived across the street from the house where the can involved in the accident belonged, testified she had seen the can when she returned home Friday around 2:00 p.m. At that time, the bottom of the can was on the white line and the top of the can was leaning at an angle “just over the [white] line.” She avoided the can by driving closer to the yellow centerline. Foster happened to be on her porch as the accident occurred and saw a white truck come up the highway when “[t]he trash can rolled into the roadway.” Foster also testified that the can “started to move” and “was slowly going into the roadway.” Pitts then struck the can, causing her to go off the road.

Former State Trooper Fowler, who was approaching from the direction opposite Pitts, saw the can “sitting in the center of the westbound lane” approximately five to seven feet from curbside.

None of those who witnessed the accident saw any BFI trucks or personnel anywhere near the accident site and it is only speculation that any BFI employee caused the can to be in the roadway.

There was uncontradicted testimony that, when empty, the trash cans could be blown over or moved by gusts of wind.

To state a claim against [BFI], [Pitts] is required to show that [BFI’s] negligence was the legal cause of her injuries, i.e., that [BFI’s] negligence was the cause to which the law attributes her injury. She must show a legally attributable causal connection between the defendant [’s] conduct and the alleged injury. The inquiry is not whether the defendant [’s] conduct constituted a cause in fact of the injury, but rather whether the causal connection between that conduct and the injury is too remote for the law to countenance a recovery. In Georgia, questions of negligence and proximate cause are ordinarily reserved for the jury, but in plain and undisputed cases the court may make a determination as a matter of law. A cause which is merely incidental is not the proximate and responsible one. Where the evidence plainly and manifestly shows that the injury was caused by the intervening efficient act of a third person [or a natural phenomenon], the defendant cannot be held responsible for having produced the injury, and the question is then one of law for determination by the court, and not one of fact for the jury. (Citations and punctuation omitted.) Baughcum v. Cecil Key Paving, 190 Ga. App. 21, 23 (2) (378 SE2d 151) (1989).

Bonard v. Lowe’s Home Centers, 224 Ga. App. 85, 87 (2) (479 SE2d 784) (1996).

In Bonard, a piece of pegboard purchased at Lowe’s and tied onto the top of the Carls’ van by a Lowe’s employee, thereafter flew off the top of the van. As Mrs. Carl waited in the van while her husband went to retrieve the pegboard, Carter was able to stop her car, but Bonard’s husband was not able to stop and hit Carter. Then, another car hit Bonard from the rear, causing Mrs. Bonard’s injuries. Although Lowe’s acts could be said to be a cause in fact of the injury, it was not the legal cause. Similarly, in Brogdon v. Wal-Mart Stores, 230 Ga. App. 474 (496 SE2d 499) (1998), Brogdon was injured as she was leaving a Wal-Mart store and was struck by a Publix supermarket shopping cart which had been placed at the top of the Wal-Mart ramp. This Court concurred with the trial court that the sudden gust of wind strong enough to propel the cart was an unexpected and unforeseeable circumstance.

Decided July 8, 1999.

Mark D. Oldenburg, for appellant.

Joan P. Davis, for appellee.

I conclude that, like the gust in Brogdon, the gust of wind two days after BFI had any contact with the trash can was the legal and proximate causation of Pitts’ injury and BFI should have been granted its motion for directed verdict. See also Mann v. Anderson, 206 Ga. App. 760 (426 SE2d 583) (1992) (fog which caused poor visibility and automobile accidents found to be naturally occurring event created by an act of God independent of human agency).

I am authorized to state that Chief Judge Johnson joins in this dissent.


author: Andrews, Presiding Judge.

text:
    A99A0593.
    WILLIAMS v. THE STATE.
    (521 SE2d 27)
   Andrews, Presiding Judge.

Allen Williams appeals from denial of his motion for new trial after his conviction of aggravated assault resulting from a fatal shooting arising from a disagreement over a quart of beer. Williams was acquitted of murder and felony murder charges.

1. Williams’ first, second, and thirteenth enumerations challenge the sufficiency of the evidence and are considered first.

On appeal, the evidence must be viewed in the light most favorable to the verdict and the appellant no longer enjoys the presumption of innocence; moreover, on appeal this court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.]

Williams v. State, 217 Ga. App. 636, 638 (3) (458 SE2d 671) (1995).

Viewed with all inferences in favor of the verdict, the evidence was that, on February 8, 1992, Williams and his female companion went to Willie’s Tavern to have a few beers, and while in the bar, Williams consumed several quarts of beer. After Williams and “Big John” Calhoun had both ordered quarts of beer, a disagreement arose as to who was entitled to the first one served, and harsh words were exchanged.

Calhoun was approximately 6' 5" tall and 268 pounds, while Williams was 5' 1" and 130 pounds.

Williams slapped Calhoun and then reached into his coat as the argument continued. Calhoun went outside the bar and was waiting against the wall. Williams then produced a small handgun, went to the door, looked out, and fired two shots in Calhoun’s direction. One of the shots struck Calhoun in the abdomen. Calhoun then reentered the bar and slashed Williams across the throat with a knife. Calhoun later collapsed from loss of blood and died.

Williams testified that Calhoun slapped him and his companion first and that Calhoun fired the two shots out the bar door. According to Williams, Calhoun then left, returning after 45 minutes, and as Williams was opening the bar door for his companion, Calhoun and a couple of others jumped him. Williams testified that “I managed — by the time I did like that to reach for my gun, there was [Calhoun] come next to the other hand and there were two shots pow pow just like that.” Williams also testified he was trying to protect himself and his companion, and the gun went off.

The issue of which version of these events to believe, Williams’ or the State’s, was for the jury, which resolved the credibility issues in favor of the State. OCGA § 24-9-80. As noted above, we do not determine credibility, only the sufficiency of the evidence, Daras v. State, 201 Ga. App. 512 (1) (411 SE2d 367) (1991), and it was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); McSears v. State, 226 Ga. App. 90, 92 (3) (485 SE2d 589) (1997).

2. Williams’ third enumeration of error is that the trial court violated OCGA § 17-8-57 by stating, after hearing the pathologist, Dr. Koponen, recite his qualifications and after the State tendered bim as an expert, that “[t]he Court will receive him as an expert.” Williams argues this improperly gave the court’s “official stamp” to the doctor in front of the jury.

Dr. Koponen conducted the autopsy of Calhoun and testified about the wounds he found and that, in his opinion, the bullet caused his death and it was a homicide.

An expert witness is anyone who, through training, education, skill, or experience, has peculiar knowledge that the average juror would not possess as to any question of science, skill, trade, or like questions; the expert witness may render an expert opinion within the witness’ area of expertise after the qualifications have been proven to the trial court. OCGA § 24-9-67; [cits.]. It is for the trial court to determine, as a matter of law after hearing evidence, whether a witness is competent by way of qualifications to render an opinion within their area of expertise. [Cits.]

In the Interest of C. W. D., 232 Ga. App. 200, 206 (3) (501 SE2d 232) (1998).

Also, an expert’s credentials are relevant to the weight and credit to be given to his testimony by the jury. Martin v. Williams, 215 Ga. App. 649, 651 (3) (451 SE2d 822) (1994).

Jones v. State, 189 Ga. App. 232 (1) (375 SE2d 648) (1988), relied upon by Williams, does not hold that it is error to qualify an expert in the jury’s presence, as was done here. Instead, it disapproved of the court’s further statement that the court had previously and repeatedly qualified the witness as an expert and “I have heard [him] testify more than once, and I’ve heard him testify on both sides of the issue. I don’t believe this witness is biased. . . .” (Emphasis supplied.) Clearly, these statements not only accepted the witness as qualified as an expert, but also vouched for his objectivity and truthfulness, a violation of OCGA § 17-8-57.

The jury was instructed that the weight to be given to the expert’s testimony was for the jury and that it was not required to accept the testimony of any witness, expert or otherwise.

There was no error in the court’s accepting the doctor as qualified as an expert.

3. In his fourth and fifth enumerations, Williams urges error in the trial court’s disallowance of the testimony of Officer Hutchins, who investigated a disturbance between the victim and two other individuals on January 1, 1992.

Despite Williams’ statement to the contrary, the record shows that he did, in fact, make a proffer of Officer Hutchins’ proposed testimony. The testimony, however, was that Officer Hutchins had no personal knowledge of the encounter, but knew only what he had been told by others. These statements were nonprobative hearsay and not competent evidence of prior violent acts by the victim. Laster v. State, 268 Ga. 172, 174 (2) (486 SE2d 153) (1997); Haynes v. State, 234 Ga. App. 272, 273 (2) (507 SE2d 151) (1998).

There was no error.

4. Williams complains of the trial court’s exclusion of his Exhibits 17-1 and 17-2, which are described as self-authenticating medical records relating to Williams’ wounds.

These exhibits, however, were not tendered into the record for purposes of this appeal, and there is, therefore, nothing for us to review in this regard. Evans v. State, 233 Ga. App. 879, 880 (2) (506 SE2d 169) (1998); Harris v. State, 230 Ga. App. 403, 404 (2) (496 SE2d 277) (1998).

5. In his seventh enumeration, Williams enumerates the court’s failure to charge his request no. 30, dealing with spoliation of evidence, OCGA § 24-4-22, based on the absence of Calhoun’s knife, which had been destroyed by the police property division due to Calhoun’s death and his family’s failure to claim the knife. OCGA § 24-4-22, however, is not applicable to criminal cases. Clayton v. State, 203 Ga. App. 843, 846 (5) (418 SE2d 610) (1992).

There was no error.

6. The eighth and ninth enumerations both allege error in the court’s failure to give Williams’ request nos. 14 and 15, both dealing with accident.

There was a discussion among counsel and the court during the charge conference, before closing arguments, as to whether both the requested charges on accident and self-defense could be given. Apparently, all participants were unfamiliar with Turner v. State, 262 Ga. 359, 361 (2) (c) (418 SE2d 52) (1992), in which the Supreme Court acknowledged that there could be situations in which both accident and self-defense, upon request, should be given. The State relied upon Wilkerson v. State, 183 Ga. App. 26, 28 (3) (357 SE2d 814) (1987), for the proposition that the two defenses were inconsistent.

Following this pre-charge conference, Williams’ counsel stated that

if Your Honor rules that I can only choose one of those, I’ll go with self-defense. But, I will just turn that over to the Court and still request that both be given. I do want to acknowledge that I have just found those footnotes that appear to support what the State just said [regarding Wilkerson].

Even assuming that this statement preserved Williams’ request for both charges, however, after the jury was charged, no objection was made to the court’s failure to charge accident.

After the charge, the court specifically inquired as to objections, and Williams’ counsel made two, neither directed at the court’s failure to charge accident. Counsel did not reserve the right to make additional objections in a motion for new trial or on appeal. Under these circumstances, this failure amounts to a procedural default precluding appellate review of the charge. Palmer v. State, 271 Ga. 234 (518 SE2d 423) (1999); Young v. State, 238 Ga. App. 555 (519 SE2d 481) (1999).

7. Williams did specifically object to the court’s instructing the jury that “[y]ou are not to be concerned yourself with punishment.” Williams contends, in his tenth and nineteenth enumerations, that this instruction impermissibly shifted the burden of proof.

This argument has no merit. George v. State, 260 Ga. 809, 811 (5) (c) (400 SE2d 911) (1991); Wilson v. State, 233 Ga. 479, 482 (8) (211 SE2d 757) (1975).

8. The eleventh and twelfth enumerations deal with the testimony of Detective Harris and are considered together.

The eleventh enumeration is that Williams was prevented from asking the officer if anyone had subpoenaed Officer Hudson, the responding officer to the tavern, for the preliminary hearing. The transcript shows, however, that this question was repeatedly asked and answered. Officer Hudson was subpoenaed and did not show up.

State’s Exhibits 1, 2, 3, and 4, photos of the tavern and environs, are the subject of the twelfth enumeration. The court sustained the State’s objection to Williams’ question regarding the fact that these pictures had not been destroyed by the police. Counsel for Williams then stated “[n]othing further,” leaving this court with nothing to review in this regard.

9. The fourteenth and fifteenth enumerations were not the subject of objections or arguments made at trial and will not be considered here for the first time.

10. During the State’s cross-examination of Williams, he was asked if, having heard the testimony of Davis, which differed from his, she was “not saying the truth.” Williams objected that it was improper to ask one witness to comment on the testimony of another witness. The overruling of this objection is Williams’ sixteenth enumeration of error.

Williams relies on Cargill v. State, 255 Ga. 616, 631 (17) (340 SE2d 891) (1986). Cargill, however, is factually distinguishable because there, one witness, who had not heard another witness testify, was asked if the other witness were lying. While the Supreme Court did agree, without citing authority, that it is generally “improper for counsel to ask a witness whether another witness is lying,” id., this issue is controlled adversely to Williams by Whatley v. State, 270 Ga. 296, 301 (13) (509 SE2d 45) (1998), where the Supreme Court found that

[t]he state’s questions about whether other witnesses were lying merely emphasized the conflict in the evidence, which it was the jury’s duty to resolve, and the trial court properly charged the jurors [regarding the determination of witness credibility]. Tucker v. State, 228 Ga. App. 321, 324 (2) (491 SE2d 420) (1997), quoting Little v. State, 194 Ga. App. 361, 362 (2) (390 SE2d 445) (1990); see also Dorsey v. State, 259 Ga. 809 (3) (387 SE2d 889) (1990) (the state may challenge the defendant’s truthfulness on cross-examination by asking defendant if other witnesses are lying).

Decided July 8, 1999.

Mark V. Clark, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

11. The final two enumerations deal with the court’s giving of the “dynamite charge” and are considered together.

Here, the jury began deliberating around 11:30 a.m. on Thursday and continued until 6:00 p.m. Deliberations resumed Friday morning, at which time the jury indicated it was deadlocked. When the court indicated it was going to give the dynamite charge, Williams made a motion for mistrial on the basis the jury was hung.

(a) The denial of this motion is enumerated as error. As repeatedly held, however,

the general rule in this state is that a motion for mistrial based on the length of the jury’s deliberation is within the sound discretion of the trial court. [Cits.] Cofield v. State, 247 Ga. 98, 113 (274 SE2d 530) (1981). Moreover, the trial court is not bound to accept the jury’s feeling that it is hopelessly deadlocked. Todd v. State, 243 Ga. 539, 542 (255 SE2d 5) (1979).

Romine v. State, 256 Ga. 521, 524 (1) (350 SE2d 446) (1986).

Denial of the motion for mistrial on this ground was not error.

(b) Williams then objected to the court’s giving of the charge, stating that, while hé had no authority to block giving the charge, he objected and, if the court were going to give it, “then at least include some language in there that the jury has the right to make whatever decision it needs to make whether it’s a hung jury ultimately or no decision or whatever.”

The charge given fulfilled this request, and the charge as a whole was appropriate. Sears v. State, 270 Ga. 834, 837-838 (1) (508 SE2d 191) (1999); Romine, supra.

The constitutional error argued on appeal was not asserted below and will not be considered here for the first time.

Judgment affirmed.

McMurray, R J., and Ruffin, J., concur.

       The order denying the motion for new trial was entered on March 16, 1995, but the record was not received in this Court from Fulton Superior Court until November 12, 1998, resulting in an over three and one-half year delay in consideration of this case.

       They are that the verdict was contrary to the evidence and strongly against the weight of the evidence, two of the “general grounds,” Stinson v. State, 185 Ga. App. 543 (364 SE2d 910) (1988); Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988), and that the court erred in denying his motion for directed verdict.