author: Blackburn, Judge.

text:
    A98A1265.
    CALBREATH v. THE STATE.
    (510 SE2d 145)
   Blackburn, Judge.

On May 1, 1997, Calbreath pled guilty to possession of marijuana, less than an ounce. This was Calbreath’s second conviction for such offense. Accordingly, as per our decision in Williams v. State, 222 Ga. App. 698 (1) (475 SE2d 667) (1996), the superior court entered a felony conviction, but sentenced Calbreath “as for a misdemeanor.” Calbreath then learned that on April 29,1997, the governor had signed legislation amending OCGA § 16-13-2 to make possession of marijuana, less than an ounce, a misdemeanor in all cases. Cal-breath filed a motion to withdraw his guilty plea, because the trial court improperly entered a conviction for a felony offense pursuant to Williams v. State, supra. The trial court denied the motion because the offense occurred on October 22, 1996, and thus Williams v. State would control. Calbreath appeals from the order entered thereon. Held:

The panel which decided Williams determined that it was rightly decided. Thereafter, it was cited as authority by other panels; such cases even specifically declined to overrule the analysis contained therein. See Washington v. State, 226 Ga. App. 807 (487 SE2d 663) (1997). However, this Court has now decided a new direction must be taken. A change of opinion is often the progress of sound thought and growing knowledge. This Court is not loath to reevaluate, review, and, when applicable, change an opinion. The law deserves the respect that comes with the recognition that, upon deliberate review, an opinion is subject to correction. That respect is the bedrock of this Court. With this understanding, we will review our prior decision in Williams v. State, supra.

1. Whether an offense is a “felony offense” or a “misdemeanor offense” is determined by the maximum punishment that can be imposed for the offense. “It is what sentence can be imposed under the law, not what was imposed, that is the material consideration.” (Emphasis supplied.) United States v. Moreland, 258 U. S. 433, 441 (42 SC 368, 66 LE 700) (1922). It is “the punishment that may be imposed that characterizes the crime.” (Emphasis supplied.) Ramsey v. Powell, 244 Ga. 745, 746 (262 SE2d 61) (1979).

In Georgia, a felony crime is defined as any crime “punishable by death, by imprisonment for life, or by imprisonment for more than 12 months,” while a misdemeanor crime is defined as “any crime other than a felony,” i.e., punishable in a manner less than a felony crime (12 months or less). (Emphasis supplied.) OCGA § 16-1-3 (5), (9).

(a) Our decision in Williams relied chiefly upon this Court’s 1973 decision in Kent v. State, 129 Ga. App. 71 (198 SE2d 712) (1973), for the proposition that a felony conviction is appropriate for a second offense of possession of marijuana, less than an ounce.

In 1973, when Kent was decided, possession of marijuana was a misdemeanor only if it was: (1) less than an ounce, and (2) a first offense. At that time, the last line of the statute read, “Subsequent offenses shall be punished as provided by law.” See Ga. L. 1971, p. 271; Ga. L. 1973, p. 688. In 1973, the only other punishment “provided by law” was for punishment as a felony offense. Because the accusation in Kent did not specify that the marijuana possession was a “first offense,” the crime was a felony and jurisdiction was in superior court. Accordingly, Kent’s state court conviction was properly reversed.

However, in the session after Kent was decided, the General Assembly specifically amended the last line of the statute to read, “Subsequent offenses . . . shall be punishable as a misdemeanor.” Ga. L. 1974, p. 267, § 3, Code § 79A-9917; see also Ga. L. 1974, p. 244, § 1, Code § 79A-811 (j). The maximum punishment permitted by law for a second offense of possession of marijuana, less than an ounce, was then misdemeanor punishment. Thus, a second offense became a misdemeanor. “Possession of marijuana is a felony under Code § 79A-811 (j) except, as provided under Code § 79A-9917 [now OCGA § 16-13-2 (b)], where the possession is one ounce or less, in which case the crime is a misdemeanor.” (Emphasis supplied.) Coffey v. State, 141 Ga. App. 254 (233 SE2d 243) (1977).

(b) Our decision in Williams also relied upon Bass v. State, 169 Ga. App. 520 (313 SE2d 776) (1984), to hold that a defendant could be “guilty of a felony [offense],” even if he could only be “punished . . . as for a misdemeanor.”

The decision in Bass involved the offense of “entering auto,” which is a felony offense because it carries a maximum punishment of five years imprisonment. OCGA § 16-8-18. At the judge’s discretion, entering auto may be “punished as for a misdemeanor.” But such is at the judge’s discretion at sentencing. At the time entering auto is indicted, the defendant is facing up to five years on a felony offense, and jurisdiction is in the superior court. After conviction for the felony offense, the judge’s decision to exercise his discretion and “punish as for a misdemeanor” does not alter the fact that the maximum punishment that can be imposed is felony punishment. Accord Fowler v. State, 229 Ga. 884 (194 SE2d 923) (1972) (judge’s discretion to reduce felony sentence to misdemeanor sentence does not reduce offense, itself, to misdemeanor).

Decided December 4, 1998.

Brian Steel, for appellant.

Daniel J. Porter, District Attorney, James M. Miskell, Assistant District Attorney, for appellee.

In Williams, however, the imposition of a misdemeanor sentence was not at the judge’s discretion, but was the only sentence permitted by law. The fact that OCGA § 16-13-2 (b) uses the terms “guilty of a misdemeanor” and “punished [as a misdemeanor]” is an irrelevant distinction in evaluating whether the offense is actually a “felony offense” or a “misdemeanor offense” when, as in Williams (and unlike in Bass), a misdemeanor sentence is the only punishment that can be imposed and, thus, defines the offense as a misdemeanor as a matter of law.

2. Upon considered and deliberate review, we conclude that Cal-breath’s second conviction for possession of marijuana, less than an ounce, was a conviction for a misdemeanor offense. Accordingly, we will overrule Williams. The trial court erred in entering judgment on a felony conviction. The instant felony judgment and, perforce, the sentence entered thereon are vacated. The case is remanded. Judgment and consequent sentence should be re-entered reflecting conviction of a misdemeanor offense. All parties are reminded that a defendant may withdraw a guilty plea as a matter of right before sentence is pronounced. Thompson v. State, 218 Ga. App. 444, 445 (462 SE2d 404) (1995).

Judgment vacated and case remanded with direction.

Andrews, C. J, McMurray, P. J., Pope, P. J., Johnson, P. J., Beasley, Smith, Ruffin, Eldridge, JJ, and Senior Appellate Judge Harold R. Banke concur.

       See also Royster v. State, 226 Ga. App. 737 (487 SE2d 491) (1997); State v. Temple, 189 Ga. App. 284, 285 (375 SE2d 300) (1988).

       Code § 79A-9917, now OCGA § 16-13-2 (b).

       The following cases are also overruled to the extent that they relied upon the Williams analysis: Washington v. State, supra; Banks v. State, 229 Ga. App. 414 (493 SE2d 923) (1997).


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A98A1319.
    TRAVELERS INSURANCE COMPANY et al. v. LINN.
    (510 SE2d 139)
   Ruffin, Judge.

Travelers Insurance Company (Travelers) and Windsor at River Heights Limited Partnership (Windsor) sued Adrienne Linn and others for damages sustained when Linn’s apartment was damaged in a fire. The trial court granted Linn’s motion for summary judgment, and plaintiffs appeal. For reasons discussed below, we affirm.

“Summary judgment is appropriate when the court, viewing all evidence and drawing all inferences in a light most favorable for the nonmovant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). ‘A defendant who will not bear the burden of proof at trial need not affirmatively disprove the non-moving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).’ Id.” Heinsimer v. Wellington Leisure Products, 231 Ga. App. 579, 581-582 (500 SE2d 7) (1998).

The record shows that Linn leased an apartment at a complex owned by Windsor. Mary and Irving Walker also lived at the apartment with their three children. Although Linn was the sole lessee, Mary and Irving Walker were identified in the lease as “occupants other than lessee.” Sometime before midnight on December 23, 1995, the Walkers’ 15-year-old child, Lee Walker, started a fire in Linn’s fireplace. At the time, Linn and Mary Walker were in the kitchen. One of the other children told Mary Walker that Lee had started a fire, and Mary told Lee to extinguish the fire. Mary called to her husband, who was in the shower, and he also told Lee to extinguish the fire.

Lee extinguished the fire with a bottle of water, cleaned the fireplace, and put the ashes into a cardboard box, which he set on the wooden deck outside the apartment. He also placed the burned logs outside with the remainder of the firewood. Neither Mary Walkér nor Linn saw the child place the logs or ashes outside. Later that night, Linn and the Walkers awoke to find the apartment on fire. The fire completely destroyed Linn’s apartment and caused severe damage to the remainder of the building. The fire department investigator later determined that the fireplace debris placed on the deck was the likely source of the fire.

After the fire, Linn and the Walkers moved into a new apartment in the complex. On December 27,1995, Linn signed a new lease for this second apartment, and her security deposit was transferred to the new apartment. On April 11, 1996, when this second lease expired, Windsor returned Linn’s security deposit, less certain amounts for damage to the second apartment as well as for some outstanding rent.

On March 15,1996, Travelers’ attorney sent Linn a letter stating that she was liable for over $800,000 in damage to the original apartment building as a result of the fire. On December 19, 1996, Travelers filed suit against Linn and the Walkers for damage to the original apartment building. Windsor was subsequently added as an additional plaintiff. On November 25, 1997, the trial court granted Linn’s motion for summary judgment, leaving the claims against the Walkers outstanding. The trial court’s order did not indicate the basis for granting summary judgment.

1. Security Deposit Statute. Linn contends that plaintiffs are precluded from asserting any claims relating to the fire damage because Windsor failed to comply with its obligations under the security deposit statute, OCGA § 44-7-30 et seq. Because Windsor never withheld Linn’s security deposit due to the damage to the first apartment, we disagree.

OCGA § 44-7-33 (b) provides that “[w]ithin three business days after the date of the termination of occupancy, the landlord or his agent shall inspect the premises and compile a comprehensive list of any damage done to the premises which is the basis for any charge against the security deposit and the estimated dollar value of such damage.” (Emphasis supplied.) OCGA § 44-7-34 (a) states that “[i]n the event that actual cause exists for retaining any portion of the security deposit, the landlord shall provide the tenant with a written statement listing the exact reasons for the retention thereof.” (Emphasis supplied.) OCGA § 44-7-35 (b) provides that “[t]he failure of a landlord to provide each of the written statements within the time periods specified in Code Sections 44-7-33 and 44-7-34 shall work a forfeiture of all his rights to withhold any portion of the security deposit or to bring an action against the tenant for damages to the premises.”

It is undisputed that plaintiffs did not provide Linn with a list of damages to the first apartment within three days of the termination of the lease on such apartment. The first written notice to Linn regarding the fire damage was the March 15, 1996 letter from plaintiffs’ counsel notifying her that she was responsible for over $800,000 in damages. Linn argues that because plaintiffs did not give her the written statements required by OCGA §§ 44-7-33 and 44-7-34, plaintiffs have forfeited their right to sue her for damages to the property.

However, because plaintiffs did not retain Linn’s security deposit to cover the damages caused by the fire, they were never obligated to provide her with any of the written statements listed in the statutes. OCGA § 44-7-33 (b) requires the landlord to provide the tenant with a list of any damage “which is the basis for any charge against the security deposit.” Because the damage to the apartment did not form the basis for any charge against Linn’s security deposit, no such list could have been provided. Similarly, OCGA § 44-7-34 (a) requires the landlord to provide the tenant with a written statement “listing the exact reasons for the retention [of the security deposit].” Since there was no retention of the security deposit in this case, plaintiffs had no obligation to provide, and indeed could not have provided, a statement giving the reasons for retention.

“[T]he intent of [the security deposit] legislation is only to prevent the wrongful withholding of security deposits from tenants by landlords.” Kimber v. Towne Hills Dev. Co., 156 Ga. App. 401, 402 (3) (274 SE2d 620) (1980). Where, as here, the landlord does not withhold a security deposit, but instead proceeds against the tenant solely by means of a civil lawsuit, the fundamental purpose of the statute is fulfilled. The forfeiture provisions of OCGA § 44-7-35 are clearly designed to further this purpose — i.e., to ensure that landlords do not wrongfully withhold security deposits — and are not designed merely to place additional procedural hurdles in the path of a landlord seeking to recover damages due to a tenant’s negligence.

Moreover, “forfeitures and penalties are not favored and statutes relating to them must be strictly construed, and in a manner as favorable to the person against whom the forfeiture or penalty would be exacted as is consistent with fair principles of interpretation.” Moore v. Beneficial Finance Co., 158 Ga. App. 535, 537 (1) (281 SE2d 293) (1981). Construed in such a manner, OCGA § 44-7-35 (b) works a forfeiture only when the landlord fails' to provide written statements that it is required to provide under OCGA §§ 44-7-33 and 44-7-34. Where the landlord does not retain a security deposit and is therefore not required to provide such written statements to the tenant, its failure to do so cannot work a forfeiture under OCGA § 44-7-35 (b).

2. Negligence. Plaintiffs contend that Linn was negligent in failing to ensure that the fireplace ashes were disposed of properly. They assert that Linn is responsible for Lee Walker’s actions because she was acting in loco parentis at the time of the fire and thus had a duty to supervise Lee’s actions. However, the evidence clearly shows that Lee was under the direct supervision of his parents, Mary and Irving Walker, when he cleaned the fireplace and placed the logs and ashes on the deck and was acting pursuant to their instructions. Because Linn had no duty as a parent to supervise Lee’s actions, she cannot be held liable under this theory. See Batchelor v. Brown, 226 Ga. App. 113 (486 SE2d 53) (1997).

Moreover, there is no evidence that Linn was negligent in supervising Lee’s disposal of the ashes. As mentioned above, Lee’s parents were present in the apartment when Lee started the fire, and it was pursuant to their instructions that he extinguished it. There is nothing in the record to show that Linn could not reasonably rely on the Walkers to supervise their own 15-year-old child in such a situation. Indeed, the apartment’s own rules and regulations, incorporated into the lease, state that “[a]ll parents shall be held responsible for their own children’s actions and see that they, too, abide by the Community Rules and Regulations.” Nothing in the record indicates that Linn should have foreseen that Lee would not merely extinguish the fire, but would place the ashes on the deck. Accordingly, there is no evidence that Linn acted unreasonably, and the trial court properly granted summary judgment to Linn on plaintiffs’ negligence claims.

3. Breach of contract. Plaintiffs contend that “[t]he trial court erred in finding no triable issues regarding Linn’s breach of contract.” In their brief, plaintiffs clarify and limit the scope of this enumeration to the following two issues: (1) whether Linn was liable under the contract for Lee Walker’s actions and (2) whether Linn breached the contract by allowing combustible material on the premises. See Mauldin v. Weinstock, 201 Ga. App. 514, 517 (3) (411 SE2d 370) (1991) (brief clarifies and limits scope of enumeration); Rolleston v. Cherry, 226 Ga. App. 750, 756 (6) (487 SE2d 354) (1997); Court of Appeals Rule 27 (c) (2).

(a) Liability for Walker’s actions. Plaintiffs point to several lease provisions they assert make Linn liable for damages caused by Lee Walker’s actions, even in the absence of any individual negligence on the part of Linn. First, they note that paragraph 24 of the lease provides that the lessee “must surrender possession of the apartment premises in good condition with the exception of reasonable wear and tear.” The question thus arises whether this provision renders Linn liable where the premises were destroyed by fire due to the negligence of another.

“The question whether a covenant as to the condition in which the tenant is to return the premises at the termination of the lease imposes a duty to rebuild in case of the accidental destruction of the premises by fire or otherwise depends on the determination of the real intention of the parties as revealed by the language of the covenant and the circumstances of the case. The court will lean toward a construction of the covenant which does not impose such liability on the tenant.” (Footnotes omitted.) 51C CJS, Landlord & Tenant, § 412, p. 1055.

In Williams v. Bernath, 61 Ga. App. 350, 353-354 (1) (6 SE2d 184) (1939), this Court held that such a covenant does not require a tenant to rebuild leased premises in the event of their destruction by fire. “If the words ‘to repair’ or ‘to keep in repair generally’ the building or property rented, are qualified by the further words ‘to return in the same condition’ (or words to that effect), and if the building or property is destroyed by fire, it is of course impossible to return the same building or property, and the law, not requiring one to do an impossible thing, therefore says that a reasonable construction of this covenant is that the obligation is subject to an implied condition that the building or property shall be in existence at the expiration of the lease, and that if the building or property is destroyed by fire the lessee is not liable under the contract for the return of the property or its value.” Id. at 353 (1). In reaching its decision, the Court stated that “[t]he lessee did not intend to become an insurer, nor was he an insurer. ‘A clause, in a lease of personal property, providing that at its termination the lessee should “return said property in as good condition as it now is, usual wear excepted,” does not make the lessee liable in damages where the property has been destroyed by fire without fault on his part.’ [Cit.]” Id. at 353-354 (1).

In Townsend v. Morris, 222 Ga. 242, 243 (2) (149 SE2d 464) (1966), the lease contained a provision similar to the one in this case, requiring the tenant to deliver the premises at the expiration of the lease “ ‘in as good repair as when first received, natural wear and tear excepted.’ ” After the premises were destroyed by fire, the landlord sued the tenant for breach of this provision. The Supreme Court, relying on Williams, sustained the dismissal of the lawsuit, stating that the lease provision “relieved the tenant of any possible obligation to restore the burned premises.” Id. at 243 (2).

In this case, as in Williams and Townsend, the apartment was destroyed by fire, and the fire was not the result of Linn’s negligence. Accordingly, this provision of the lease does not provide a basis to hold Linn liable for damage to the apartment.

Plaintiffs also rely on paragraph 12 of the lease, which states that “[i]n the event Lessee fails to pay on or before the due date thereof any payment owing to Lessor under the terms of this lease, whether the same constitutes rent, late charge, payment for damage to property, reimbursement or indemnity for claim of damage to property, or otherwise, . . . [t]hen, in such event, Lessor may obtain possession of the apartment by summary proceedings or by any other lawful means and/or may sue for damages for breach of lease.” However, this paragraph merely sets forth the lessor’s remedies in the event the lessee fails to make any payment “owing to Lessor under the terms of this lease,” and does not constitute an independent basis for the lessee’s liability.

Finally, plaintiffs note that paragraph 8 (a) of the lease provides that Linn shall “repair . . . any and all broken glass or other damage in and to the apartment caused by Lessee, his guests, invitees or licensees.” Plaintiffs contend that Lee Walker was an invitee or licensee of Linn, and that Linn is therefore liable for any damages caused by Walker.

The terms “licensee” and “invitee” are not defined in the lease. These terms are generally used in premises liability cases, in analyzing the duty owed by a property owner to one who comes onto his premises. See OCGA §§ 51-3-1; 51-3-2. In this context, “whether a person is an invitee or a licensee depends upon the nature of his relation or contact with the owner or tenant of the premises. If the relation solely benefits the person injured, he is at most a licensee. If, on the other hand, the relation was of mutual interest to the parties, he is an invitee.” (Punctuation omitted.) Chatham v. Larkins, 134 Ga. App. 856, 857-858 (2) (216 SE2d 677) (1975).

In this case, Lee Walker lived at the apartment along with his parents. The lease identified the parents as “occupants other than lessee.” Delaine Pierce, Windsor’s representative, testified that an “occupant” is someone other than the lessee who permanently resides in the apartment, and that such a person is different from a visitor. Although Lee Walker was not listed as an occupant, Pierce testified that failure to list children as such did not constitute a breach of the lease.

As an occupant of the apartment, Lee Walker does not fit squarely into the category of either licensee or invitee. These terms are generally understood to refer to individuals who come onto the property of another for business or social reasons, and not to be permanent residents. The language of paragraph 8 (a) supports this interpretation, with its reference to “guests, invitees or licensees,” but not to “occupants,” a term which is used earlier in the lease. If the lessor had intended to make Linn responsible for the negligent acts of other occupants of the apartment, it could have easily included the term “occupant” in paragraph 8 (a). Construing the lease against the drafter, we cannot say that Lee Walker fell within the lease’s definition of a licensee or invitee. See Marjon Assoc. v. Leasing Intl., 174 Ga. App. 679, 680 (1) (331 SE2d 20) (1985) (“contents of a contract are to be construed most strongly against the drafter if construction of any part is in doubt”).

(b) Combustibles. Paragraph 8 (b) of the lease provides that Linn will comply with the rules and regulations of the apartment complex, which are attached to the lease. Rule H of the attached rules and regulations states that “Lessee shall not bring into or keep any explosive or obnoxious substances, excelsior or any other inflammable or combustible matter upon the Leased Premises, in any storage space and/ or building of which it is a part.” Plaintiffs contend that the fireplace debris constituted “combustible matter,” and that Linn breached the contract by allowing it to be placed on her deck.

Decided December 4, 1998.

Cozen & O’Connor, David M. Bessho; for appellants.

Webb, Carlock, Copeland, Semler & Stair, Edward A. Miller, Samuel R. Arden, for appellee.

This contention is without merit. As an initial matter, it does not appear that the term “combustible matter,” as used in the lease provision, was intended to include a substance such as fireplace debris. Although incompletely extinguished ashes may indeed reignite, plaintiffs do not contend that the lease prohibits a tenant from starting a fire in her fireplace (which is included with the apartment). Thus, it is clear that ashes from an extinguished fire do not constitute prohibited “combustible matter,” at least so long as they remain in the fireplace. Nothing in the lease provision indicates that whether an item is considered combustible depends on its location within the premises. Construing the lease provision against the drafter, and in favor of Linn, it therefore does not appear that the fireplace debris constitutes prohibited combustible matter as contemplated by the lease. See Marjon Assoc., supra.

Moreover, even assuming that the fireplace debris did in fact constitute combustible matter after it was placed on the deck, the record shows that the debris was placed there by Lee Walker, not by Linn. There is no evidence that Linn was even aware Walker had placed the debris on her deck. As discussed above, the lease does not render Linn responsible for all of the actions of other occupants. Thus, there is no evidence that Linn brought or kept combustible matter on the premises in violation of the lease provision.

For the above reasons, the trial court did not err in granting summary judgment to Linn on plaintiffs’ breach of contract claim.

4. Plaintiffs also contend that the trial court erred in finding that they waived compliance with certain lease provisions and in finding a waiver of subrogation in favor of Linn. The trial court made no such findings in its summary judgment order. Because the grant of summary judgment was proper for reasons discussed above, it is not necessary to consider whether such findings would have been proper.

Judgment affirmed.

Pope, P. J., concurs. Beasley, J., concurs in the judgment only.


author: Pope, Presiding Judge.

text:
    A98A1494.
    ODEM v. PACE ACADEMY.
    (510 SE2d 326)
   Pope, Presiding Judge.

Appellant Jeffrey L. Odem appeals from the trial court’s grant of summary judgment to Pace Academy on his claims for breach of contract, intentional infliction of emotional distress and breach of a legal duty arising out of the termination of his employment at Pace. We affirm.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.” (Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). On appeal from a grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802, 803 (500 SE2d 591) (1998); Lane v. Spragg, 224 Ga. App. 606 (481 SE2d 592) (1997).

The record shows that from August 1992 to January 25, 1994, Odem was employed as the technical director of Pace’s theater program. Odem’s responsibilities included coordinating the scenery for the school’s theater productions and teaching classes on the technical aspects of theatrical productions.

Odem originally was hired for the 1992-1993 school year and signed a one-year contract. Although George Mengert, the head of Pace’s drama department and Odem’s immediate supervisor, stated he had some concerns about Odem’s organizational skills, Odem’s contract was renewed for another year in February 1993.

Odem’s contract with Pace provided that it was terminable at will by either party upon 30 days written notice. In addition, Pace retained the right at any time “to annul this contract, suspending without compensation or dismissing the teacher for unsatisfactory professional performance, insubordination, neglect of duty, the violation of any law, or failure to adhere to the terms of this contract or to standards of personal conduct consistent with the philosophy of the school.” The contract further provided that implicit within its terms was “the understanding that employees are expected to comply with written, stated, and commonly understood definitions of duties and responsibilities in the discharge of school responsibilities.” In conjunction with his employment, Odem received a copy of the school’s faculty handbook. He read the handbook and understood that he had to abide by its policies.

In November 1993, during preparations for the school’s fall musical “Carousel,” work on the stage sets ran behind schedule, and the school hired a carpenter to help Odem complete the work. Even with the additional help, Odem and his technical staff were still working on the sets on opening night. Under the time pressure of these preparations, tempers flared and Odem developed an acrimonious relationship with Jill Cadenhead, one of the parent volunteers working on the production. In the midst of this pre-production work, Odem was informed that a female student was upset and crying because an adult male dancer hired by the school had been touching the student’s breasts during dance rehearsals. Odem called the girl to his office, and she confirmed this story. Odem told her that she did not have to tolerate the dancer’s conduct, that she should tell the dancer to stop his behavior and that she should tell the dancer that she had told an adult about his actions. Several days later, at a post-production party Odem informed the student’s parents of the situation.

The next day, Odem learned from a second female student that two years earlier, the same male dancer had touched her inappropriately during another Pace musical production. The girl told Odem that she had reported the dancer’s actions at the time to Cadenhead, who had also volunteered on the earlier production, but that Cadenhead had told her something to the effect of “grow up” and had taken no action. The girl from whom Odem had first heard of the inappropriate incident later told Odem that she had also spoken with Cadenhead about the dancer’s conduct, with similar results.

During one of the last performances of Carousel, Odem received information that Cadenhead was asking for help from another volunteer in getting Odem fired. Odem responded to this information by saying that he was quitting and leaving the backstage area. Nevertheless, Odem immediately “thought better” of it and returned to the set.

On the first school day after the Carousel production, Odem reported the girls’ accounts of the dancer’s behavior to George Kirkpatrick, Pace’s headmaster. Kirkpatrick told Odem that he had done the right thing in reporting these incidents. Kirkpatrick also told Odem that the school would investigate the situation and instructed him not to discuss the matter with the girls’ parents. But Odem had already spoken with the first student’s parents and, despite Kirkpatrick’s instructions, later discussed the matter with the second girl’s parents and at least one other school parent. And when Odem later learned that a third girl may also have been inappropriately touched by the male dancer in the earlier production, he discussed the matter with that girl’s mother. Odem then reported this third incident to Kirkpatrick.

In the meantime, Cadenhead and other volunteers began complaining to Odem’s supervisor, Mengert, about Odem’s behavior during the Carousel production. In a letter, one volunteer complained about Odem’s lack of organizational and teaching skills and emphasized his temper and “mercurial mood swings,” stating that she had seen him “blow up” at students and have “temper tantrums” before “storming” out of class. This volunteer recalled that Odem had even thrown wood across the shop during one “outburst.” Cadenhead also wrote a letter raising similar concerns, noting one instance when she said Odem had scared several young children who had been enlisted on the Carousel production.

Around this time, the school also received a report that Odem kept a gun in his unlocked truck while it was parked at school. This report, from a carpenter who was helping with Carousel, indicated that the gun was lying in Odem’s truck on the front seat under some magazines. The carpenter also reported that Odem had made a comment during production to the effect that he sometimes felt like a postal worker and he could just go in and blow everyone away.

Mengert related these matters to Headmaster Kirkpatrick and spoke with Odem about his gun. Odem admitted that he brought his gun to school every day and stated that it was his constitutional right to do so. Kirkpatrick told him never to bring the gun on campus again, and after further discussion Odem agreed.

By this time, the school had completed its investigation of the reported incidents with the girls, and Kirkpatrick determined that no further action was warranted. Moreover, Kirkpatrick understood that the individuals involved wanted the matter dropped without further reporting to authorities.

During December 1993 and January 1994, Odem stated that he became concerned about the school’s decision not to report the incidents to the proper authorities and about whether these events were affecting his employment prospects. Odem began discussing the matter, including the incidents involving the girls, with parents, trustees, and faculty members, and sought advice on how to resolve these issues with the school administration. In these discussions Odem did not volunteer the girls’ names but did tell several trustees after they asked him to do so. Odem also discussed the situation with students when they asked, but stated that he only mentioned the girls by name if the student already knew the girls’ identities.

After the school began receiving complaints from trustees and other reports of Odem’s discussions, school officials told Odem to stop calling the trustees and to refrain from discussing the matter with students, faculty and parents. Despite this directive, Odem continued to call the trustees, although he says that he did stop talking to other faculty and parents. Odem also informed the school that he had been talking to a lawyer about his and the school’s duties under the law to report the incidents involving the girls.

These events culminated in a meeting on January 18, 1994, when Kirkpatrick informed Odem that the school had decided not to renew his contract at the regular renewal time in February, but instead to place him on probation. Odem was given a list of requirements for his probationary status and asked to sign off on them. The list included directives that he would not bring a gun onto campus; that he would not discuss his “situation” with trustees, students, Pace employees or members of the public; that he would not talk to the female students or their parents about the “situation”; that he would not sue the school; and also included a list of professional requirements. Odem was given two days to respond to the school’s probation proposal.

Two days later, after consulting with an attorney, Odem informed the school that he would not sign the list of probationary requirements and offered a counterproposal. In his counterproposal, Odem agreed that he would not bring a gun on campus, asked for a favorable letter of recommendation and offered to cease discussing the incidents involving the female students if the school would agree to sign a mutual release as to all claims arising out of the “alleged misconduct of the visiting artist.” The school had not formally responded to Odem’s counterproposal by the end of that week and expected Odem to appear for work the following Monday.

The events of the following week are in some dispute. Pace officials testified that Odem did not report for work or conduct his classes the following Monday, January 24, or Tuesday, January 25. In fact, Kirkpatrick stated that he had received reports that Odem had indicated that he would resign. Odem testified that he did appear for work those two days and that he “probably” conducted his classes on January 24, and that he did not tell anyone he was resigning. However, Odem did not dispute that he failed to show up to teach his class or to secure a substitute teacher for the class on January 25. Instead, he went to the police department to file a report on the incidents involving the male dancer and the three girls.

After Kirkpatrick learned that Odem had gone to the police department to make a report, he sent Odem a letter stating that as of January 25, 1994, he was dismissed as an employee of Pace and that his contract was annulled for unsatisfactory professional performance and insubordination. The letter notes that the school had received a report that Odem had said he was resigning and that the school was taking his failure to show up for his January 25 class as proof of his resignation.

1. Odem contends that the trial court erred in granting summary judgment on his breach of contract claim because Pace did not terminate him for cause under his contract. Instead, Odem states that he was fired because he kept discussing the school’s failure to report the dancer’s inappropriate conduct and eventually reported the conduct himself.

“In summary judgments involving contract cases, the construction of a contract is a question of law for the trial court where the language of a contract is clear and unambiguous and capable of only one reasonable interpretation as applied to the subject matter. The cardinal rule of contract construction is to ascertain the intention of the parties. Where the intent of the parties is clear and unambiguous, the court will look to the contract alone to determine the parties’ intent.” (Citations and punctuation omitted.) Amstadter v. Liberty Healthcare Corp., 233 Ga. App. 240, 242 (1) (503 SE2d 877) (1998).

Odem’s employment contract stated explicit grounds for the termination of his employment without notice. At the time of his termination, the school cited two of these grounds: unsatisfactory professional performance and insubordination. Kirkpatrick’s letter noted in particular the report the school received that Odem was resigning and his failure to appear for his January 25 class. The Pace faculty handbook requires that its teachers attend their classes, notify the school of any absences and secure a substitute teacher if they plan to be absent. When Odem failed to take any of these steps, the school interpreted his actions as abandonment of his position and sent the letter of dismissal. Odem’s failure to abide by the school’s written policies certainly could be construed as unsatisfactory professional performance under the contract justifying the termination.

Moreover, Odem admitted to acts of insubordination. After Kirkpatrick directed Odem not to discuss the incidents with the girls’ parents, Odem admits that he did speak, not only with two of the girls’ parents, but also to at least one other school parent. Similarly, he admits that he continued to discuss these matters with the school’s trustees after being directed not to do so. Thus, Odem admits that he disobeyed direct instructions from the head of the school. Further, in discussing these incidents with other students (mentioning the students involved by name with some students), faculty members, and parents not directly involved, Odem violated written school policies advising caution when discussing students and prohibiting a teacher from discussing a student with other students or the parents of other students.

Additionally, Odem admitted to keeping a gun in his car when he came to school. Georgia law makes it a felony to carry or possess or have under one’s control a weapon on school property. OCGA § 16-11-127.1. Thus, when Odem admitted that he kept a gun in his car every day, he admitted that he violated the law. Because Odem’s contract gave Pace the right to annul the contract for the violation of any law, this behavior alone provided Pace a ground for terminating Odem.

Further, at the time of Odem’s termination, Pace had received complaints from parents who had worked with Odem on Carousel. These parents complained not only of Odem’s organizational abilities, but also of his temper and treatment of students. While Odem denied the specific incidents related by the parents, he admitted that he had a temper, that he raised his voice around students, and that he may have used foul language in front of them. The school could have found this behavior to be unprofessional behavior.

These factors taken together provide a basis for Pace’s decision to annul Odem’s contract on the ground of unsatisfactory professional performance and insubordination. See Smitherman v. Mary House Ministries, 200 Ga. App. 116, 117 (1) (407 SE2d 58) (1991).

Nevertheless, Odem contends that Pace did not fire him for cause. He argues that Pace dismissed him not for his actions in violating school policy and disobeying instructions from his superiors, but rather that he was dismissed solely in retaliation for his reports of child abuse to the administration and to the police (although he admits that Kirkpatrick told him that he had done the right thing in reporting the incidents to him). In support of his argument that he was fired for improper reasons, Odem relies upon cases discussing the issue of pretext under federal discrimination law. These cases which discuss discrimination and retaliation claims under federal statutory and constitutional law have no application to Odem’s breach of contract claim. In the discrimination claims, proof of pretext is a defined element of the plaintiff’s case. See, e.g., Howard v. BP Oil Co., 32 F3d 520 (11th Cir. 1994) (racial discrimination claim under 42 USCA § 1981).

However, the elements for a breach of contract claim in Georgia are merely “ ‘the breach and the resultant damages to the party who has the right to complain about the contract being broken.’ ” Budget Rent-A-Car of Atlanta v. Webb, 220 Ga. App. 278, 279 (1) (469 SE2d 712) (1996). In this instance where we have determined that Pace had authority under the contract to terminate Odem’s employment, no breach of contract occurred and Odem’s claim cannot survive summary judgment.

2. Odem also contends that the trial court erred in granting Pace summary judgment on his claim for intentional infliction of emotional distress. To succeed on this claim, Odem must establish all four of the following elements: “(1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; [and] (4) The emotional distress must be severe.” (Punctuation omitted.) Hendrix v. Phillips, 207 Ga. App. 394, 395 (1) (428 SE2d 91) (1993). “Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.” (Citation and punctuation omitted.) Taylor v. Gelfand, 233 Ga. App. 835, 837 (3) (505 SE2d 222) (1998).

Moreover, “[i]t has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Citation and punctuation omitted.) Bowers v. Estep, 204 Ga. App. 615, 618 (2) (420 SE2d 336) (1992).

We have held as a matter of law that Pace acted within its contractual rights in terminating Odem’s employment, so Odem’s argument that his termination was retaliatory does not support his claim for intentional infliction of emotional distress. Compare Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 706 (409 SE2d 835) (1991) (jury issue present as to whether plaintiff was demoted in retaliation for testifying in sexual harassment action against employer); Trimble v. Circuit City Stores, 220 Ga. App. 498, 500 (469 SE2d 776) (1996) (factual issue existed as to whether employer forced employee to resign in retaliation for sexual harassment claim and in so doing threatened plaintiff’s physical health). We must determine whether Odem has presented evidence of any other behavior on the part of Pace that is sufficiently extreme or outrageous to survive summary judgment.

Although Odem claims that the school’s efforts to keep him from discussing the incidents involving the three female students support his claims, the record shows that school officials did no more than ask Odem to abide by school policy and allow the administration to investigate and make the final decision regarding the matter. Moreover, although Odem claims that he was pressured not to report these incidents to police, in his counterproposal to Pace, Odem offered to let the matter drop and not report it to authorities. Odem can hardly claim severe emotional distress resulting from conduct to which he was willing to agree. See Sossenko v. Michelin Tire Corp., 172 Ga. App. 771, 772-773 (324 SE2d 593) (1984) (warnings, job transfers, and harassment directed toward “whistleblower” do not state a claim for intentional infliction of emotional distress).

Odem further testified that Kirkpatrick was rude to him on two occasions, once when he presented the list of probationary requirements in a loud, forceful voice and the second time when he had an outburst after Odem told him that he had consulted an attorney about the list. Odem also said that at times his discussions with school employees were very emotional and intense. However, he admits that he never felt physically threatened or intimidated by anyone at Pace. Liability for intentional infliction of emotional distress does not extend to “ ‘mere insults, indignities, threats, annoyanees, petty oppressions, or other trivialities.’ ” Amstadter v. Liberty Healthcare Corp., 233 Ga. App. at 243 (2). See Sossenko v. Michelin Tire Corp., 172 Ga. App. at 772-773. Thus, Odem has failed to show any actions on the part of Pace rising to the requisite level of outrageousness or egregiousness.

Moreover, Odem has failed to present evidence of any severe emotional distress resulting from these events. While Odem filed an affidavit in opposition to Pace’s motion for summary judgment in which he states that he suffered stress, humiliation, embarassment and worry, he testified on deposition only that he had experienced financial difficulties and that when he consulted his physician for nasal congestion the doctor had discovered “accidentally” that Odem’s blood pressure was “marginally high.” Odem also testified that he sought no professional advice from doctors or counselors and discussed the matter only informally with his minister. However, “[t]he law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it.” (Citation, punctuation and emphasis omitted.) Peoples v. Guthrie, 199 Ga. App. 119, 121-122 (2) (404 SE2d 442) (1991).

Accordingly, we hold that the trial court was correct in granting summary judgment on Odem’s claim of intentional infliction of emotional distress.

3. Additionally, Odem contends that the trial court erred in granting summary judgment on his claims under OCGA §§ 51-1-6 and 51-1-8. OCGA § 51-1-6 provides that “[w]hen the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.” OCGA § 51-1-8 states that “[plrivate duties may arise from statute or from relations created by contract, express or implied” and holds that “[t]he violation of [such a] duty, accompanied by damage, shall give a right of action.” Odem bases his claims under these provisions on Pace’s failure to report the incidents involving the three students to outside authorities under Georgia’s child abuse reporting law, OCGA § 19-7-5.

This Court has previously held that no private cause of action lies for a failure to report child abuse in accordance with OCGA § 19-7-5. Vance v. T. R. C., 229 Ga. App. 608, 610 (1) (a) (494 SE2d 714) (1997); Cechman v. Travis, 202 Ga. App. 255, 256 (1) (414 SE2d 282) (1991). Odem argues, however, that these statutes create a derivative cause of action in his favor. Odem contends that he and Pace had a duty to report the incidents involving the three female students and that Pace therefore could not retaliate against Odem for reporting the abuse to authorities. Odem further argues that because Pace violated its duty to report these incidents, he has a cause of action to recover for damages.

Decided December 4, 1998

Parks, Chesin & Miller, Harlan S. Miller III, Marni K. Brown, for appellant.

Smith, Gambrell & Russell, Rex M. Lamb III, Thomas M. Barton, for appellee.

In determining whether the violation of a statute creates a cause of action in a particular person, it is necessary to examine the purposes of the legislation and decide whether the injured person falls within the class of persons the statute was intended to protect and whether the harm complained of was the harm it was intended to prevent. Manley v. Gwinnett Place Assoc., 216 Ga. App. 379, 381 (2) (454 SE2d 577) (1995); Horney v. Panter, 204 Ga. App. 474, 476 (420 SE2d 8) (1992).

OCGA § 19-7-5 (a) specifically states that the purpose behind the statute is “to provide for the protection of children whose health and welfare are adversely affected and further threatened by the conduct of those responsible for their care and protection.” Thus the statute was explicitly designed to protect children affected by child abuse. Odem clearly does not fall within that class of protected persons, and his claim under OCGA § 51-1-6 cannot survive summary judgment.

Odem’s claim under OCGA § 51-1-8 also is without merit. Odem’s relationship with Pace «was defined by contract, and the mere breach of that contract does not give rise to tort liability. See Hanson v. Aetna Life & Cas., 625 F2d 573 (5th Cir. 1980).

Therefore, we affirm the trial court’s grant of summary judgment on these claims.

Judgment affirmed.

Beasley and Ruffin, JJ., concur.

       The record contains evidence indicating that the absence of other staff members due to illness may have contributed to these delays.

       But George Mengert, Odem’s immediate supervisor, later told Odem that he wished he knew who had reported the matter because he did not like to be connected with such events.

       Odem testified on deposition that he never made any threats to the school, but merely said that he understood how events involving postal workers shooting fellow employees could happen.

       Odem also discussed the list of probationary requirements and his employment situation with some of his students.

       Kirkpatrick testified at his deposition that he knew that Odem had filed a police report before he terminated him. Although he later submitted an affidavit stating that he did not know of the police report at the time of Odem’s dismissal, for purposes of summary judgment we must construe this conflicting testimony against Pace as Kirkpatrick offered no explanation for his change of position. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986).

       Odem states explicitly that he is not contending that Pace breached the implied covenant of good faith in exercising its rights under the contract, so we do not address that issue.

       Similarly, the Georgia cases Odem cites are not applicable to this case where Odem disputes Pace’s reasons for firing him, even though he admits to behavior which violated school policy and the law, and which violations provided Pace with explicit grounds for dismissal under his contract. See Savannah College of Art &c. v. Nulph, 265 Ga. 662, 663 (3) (460 SE2d 792) (1995) (holding that the trial court erred in directing a verdict in favor of employee on the basis of a procedural breach of contract and determining that the employer was entitled to have the jury consider whether it had justification for dismissing employee); Bldg. Materials Wholesale v. Reeves, 209 Ga. App. 361, 362-364 (1) (433 SE2d 346) (1993) (holding that trial court correctly denied a directed verdict on the issue of whether the employee had substantially complied with his employment contract where evidence showed he violated his contract by charging personal phone calls to the company on company time, but offered to reimburse the company for his expenses and attempted to make up the time taken up with calls by skipping lunch or working late).


author: Pope, Presiding Judge. Beasley, Judge, Ruffin, Judge,

text:
    A98A1508.
    LESLIE v. WILLIAMS.
    (510 SE2d 130)
   Pope, Presiding Judge.

Sheila Leslie sued Nikita Williams for injuries she allegedly sustained in an automobile accident. Before trial, Williams stipulated to her negligence, leaving only the issues of proximate cause and damages for trial. After a trial on these issues, the jury returned a verdict in favor of Williams. Leslie appeals, contending the verdict is not supported by the evidence and the court erroneously instructed the jury on her burden of proof regarding causation. The contentions are without merit and we affirm the judgment.

1. Before addressing the merits of Leslie’s appeal, we must consider Leslie’s failure to file an additional copy of her enumerations of error separate from those set forth in her brief. Although we do not condone Leslie’s failure, unlike Judge Ruffin’s dissent we cannot conclude that it requires a dismissal of her appeal. And while the procedure suggested by Judge Beasley — that we order Leslie to file separate enumerations of error — may be appropriate in some cases, such a procedure is not needed in every appeal lacking separately filed enumerations, but should be used only in those cases in which it is not apparent from the notice of appeal, briefs and record exactly what errors are alleged. Instead, in a case such as the instant one in which there is no question as to exactly what errors are alleged, we should not elevate form over substance and should not waste judicial time and resources by ordering the appellant to file another document, but should simply rule on the merits of the appeal.

There is no question that Leslie failed to comply with Court of Appeals Rule 22 (a), which states: “The enumerations of error shall be filed as a separate document with the Clerk of this Court. . . . This is in addition to Part 2 of the brief. See Rule 27 (a) (2).” She did, however, comply with Rule 27 (a) (2) by setting forth enumerations of error in her brief. Those enumerations definitely and specifically designate the alleged errors: the first enumeration contests the court’s jury charge on Leslie’s burden of proof and the second enumeration challenges the sufficiency of the evidence supporting the verdict.

Consequently, this case is materially distinguishable from those cited by the dissent. In Wordu v. State, 216 Ga. App. 552, 553 (1) (455 SE2d 101) (1995), this Court dismissed an attempted out-of-time appeal, which contained no enumerated errors, only after the appellant did not comply with a court order directing him to file enumerations of error. In Lewis v. State, 226 Ga. App. 344 (487 SE2d 533) (1997), we dismissed the appeal because not only did the appellant fail to file any enumerations of error, but he also failed to comply with several requirements for briefs set out in Court of Appeals Rule 27. In Miles v. Emmons, 234 Ga. App. 487 (507 SE2d 762) (1998), the appeal was dismissed because again there were no enumerations of error filed. The special concurrence in that case noted: “This is not a case, therefore, where a party enumerated errors for the Court in his brief, but simply forgot to file the enumerations as a separate document.” Unlike Miles, Lewis, and Wordu, the instant case is one in which Leslie did in fact enumerate errors for us in her brief, but did not also file the enumerations as a separate document.

We are required to construe the Appellate Practice Act liberally in order to reach a decision on the merits of every appeal and avoid dismissal of cases. OCGA § 5-6-30. “Where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from or that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed.” OCGA § 5-6-48 (f). Construing the Appellate Practice Act liberally, we shall not dismiss Leslie’s appeal, but instead we exercise our discretion to reach the merits of the case because it is apparent from Leslie’s notice of appeal, her brief, her enumerations of error in the brief, and the record exactly what judgment is appealed from and what errors are asserted.

2. Leslie asserts that the court improperly increased her standard of proof beyond preponderance of the evidence by giving the following jury charge: “[I]f you believe from the evidence adduced that the cause of any injury or medical condition which may have been suffered by the plaintiff cannot be determined with certainty but is a matter of speculation or conjecture, in that event you would not be authorized to find a verdict against the defendant in any amount. And in such instance it would be your duty to return a verdict in favor of the defendant as it is absolutely necessary for the plaintiff in order to recover damages from the defendant to show by a legal preponderance of the evidence that the loss complained of was proximately caused by the negligence of the defendant. I instruct you the law does not permit you to speculate or to guess about the existence of injury claimed.”

Contrary to Leslie’s assertion, this very charge was approved of in Royal v. Davis Hauling Co., 164 Ga. App. 409, 410-411 (2) (297 SE2d 333) (1982). Moreover, “[i]t is a fundamental rule that jury instructions must be considered as a whole in determining whether there was error in the charge. [Cit.]” Barham v. Levy, 228 Ga. App. 594, 595 (1) (492 SE2d 325) (1997). An examination of the entire charge and recharge in the instant case shows that the court fully and correctly instructed the jury on the burden of proof. See News Publishing Co. v. DeBerry, 171 Ga. App. 787, 790 (3) (321 SE2d 112) (1984).

3. Leslie complains that a verdict in her favor was demanded because Williams did not put on any evidence. The complaint is without merit. The jury considered evidence of Leslie’s prior back and neck injuries; of the seriousness, or lack of seriousness, of the collision; and of the time lapse between the accident and Leslie’s seeking of medical treatment. As the finders of fact, the jurors were authorized to conclude from all the evidence that Williams is not liable for Leslie’s alleged aggravated injuries. See Purvis v. Toole, 207 Ga. App. 189 (1) (427 SE2d 565) (1993); Davis v. McCray, 127 Ga. App. 281 (193 SE2d 200) (1972). Leslie’s challenge to the sufficiency of the evidence is without merit.

Judgment affirmed.

McMurray, P. J., Blackburn and Eldridge, JJ., concur. Andrews, C. J., Beasley and Ruffin, JJ., dissent.

Beasley, Judge,

dissenting.

There is a remedy for failure to file a separate enumeration of errors but the majority’s reasoning does not overcome Leslie’s failure to file one, because under the current state of the court rules, without a separate enumeration this Court does not have jurisdiction.

OCGA § 5-6-48 (f) does not apply because there is no legally effective enumeration of errors at all; that subsection contemplates instances where an enumeration, which is a necessary part of the record, is filed. That subsection provides: “Where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing. . . .” It does not list briefs, which are not part of the CPA-required items for perfection of an appeal. This deficiency foreclosed invoking subsection (f) in Lewis as well, as stated in the special concurrence in that opinion.

The “separate” enumeration of errors required by OCGA § 5-6-40 is a part of the record, whereas the repetition of it in the brief as required by Rule 27 (a) (2) does not constitute a part of the record because a brief is not part of the record. The separate enumeration is a statutory requirement, not simply a requirement of the court rules which can be adjusted by the court. The statute purposefully authorizes the court to “by rule, . . . permit the enumeration to be made a part of the brief.” The court has not done so; the rule, Rule 22 (a), is otherwise. Yet the majority has made a rule change for this case. I have no doubt that is practical, but it skirts the law. And because the current rules, in conjunction with the statute, require the record rendition of the enumerations to be separate, the record needs supplementation. The absence of a record enumeration of errors would deprive the court of jurisdiction for failure to perfect the appeal.

There is a remedy available that would allow this Court to prompt a correction of the deficiency by supplementation. The court may simply order the appellant to file the statutory enumeration within some reasonable period of time, failing which the appeal would be dismissed. The court could also consider citing the offender for contempt. Court of Appeals Rule 7. The court can also change its rule, accepting the invitation of the legislature at the end of OCGA § 5-6-40.

OCGA § 5-6-48 (d) establishes that “[a]t any stage of the proceedings, . . . the court shall by order, either with or without motion, provide for all necessary amendments, ... or take any other action to perfect the appeal and record so that the appellate court can and will pass upon the appeal and not dismiss it.”

This sentence gives the appellate court broad authority so that the purpose of allowing appeals, a review on the merits, is achieved. It does not confine the court to issuing orders of direction to the trial court. Even that is not narrowly meant, as the order may require obedience by the clerk or the court reporter and not the judge. But “amendments” are not limited to amendments emanating from the trial court itself; they may be needed from counsel, who is in each case an officer of the court. The court is empowered by this section to exercise discretion and require amendments, corrections, and additions of whatever kind are needed “to perfect the appeal.”

Windsor v. Southeastern Adjusters does not prevent this Court from exercising the authority granted by the statute. In that case the Supreme Court chose not to utilize the power expressly bestowed, for whatever reason it had. It may have determined to set a stern example at the commencement of the Appellate Practice Act, as it had gone into effect August 1, 1965, only two months before the case was decided. Regardless of the reason, it did not rule that an appellate court could not invoke OCGA § 5-6-48 (d) to cure the deficiency in the record.

But, as indicated above, the court is authorized by law to exercise discretion to assure its jurisdiction by alerting appellant to the deficiency and allowing a correction. In both Napier v. Napier and Benfield v. State the Supreme Court recognized that where the enumeration is filed but late, it “may” by its rules deem this transgression a failure to perfect the appeal. It exercised its discretion to do so instead of utilizing the authority in OCGA § 5-6-48 (d) to prompt perfection. In Napier it had looked for a reason not to do so but found that appellant did not offer an explanation or reason for the untimeliness. Without a perfected record, of course, the Court had no jurisdiction to proceed. In this case the record could have easily been supplemented by filing the two-error enumeration which is now contained on a single page of the appellant’s brief.

The opportunity to obtain a ruling on the merits should have been granted here by ordering appellant to file the enumerations. The following reasons warranted such an opportunity:

(1) All else has been done properly; the rules have been followed, unlike in Lewis v. State, where several of the requirements for briefs were also overlooked. The court need not become engaged as a school for brief-writing.

(2) The absence of the enumeration from the record has not hampered appellee in responding; appellee does not even call attention to the deficiency by motion, as in Lewis, or in her brief.

(3) Appellant does set out clearly and succinctly the errors she claims were made by the trial court and identifies them as such; in Lewis, appellant recited no enumeration of errors but merely incorporated “objections” in his brief, and in Windsor there was no enumerations of error included as a part of the brief but only “questions allegedly presented for review.”

(4) No motion to dismiss, as in Lewis, and no court order, as in Wordu v. State, has given appellant an opportunity to complete the record. Lewis tried to defend his omission when it was called to his attention, not correct it.

(5) DeKalb County v. Beacon Indus and Lee v. State, both cited in Miles v. Emmons deal with an effort by appellant to expand the enumeration to include others, which relates to a different although related procedural rule. These two cases do not constitute controlling precedent for the problem here. Miles itself differs, in that Miles failed to comply with the court rule as well, so there was no enumeration of errors identified anywhere. His omissions would substantively preclude a consideration of the merits of the appeal.

Ruffin, Judge,

dissenting.

I respectfully dissent from the majority’s opinion. Leslie failed to file a separate enumeration of errors as required by Court of Appeals Rule 22 (a). In so doing, Leslie has not made her enumerations of error part of the record on appeal. See OCGA § 5-6-40. Because this Court does not have the authority to consider any enumerations of error not properly in the record before it, I would dismiss this appeal.

Pursuant to OCGA § 5-6-30, the Appellate Practice Act “shall be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein, except as may be specifically referred to in this article.” (Emphasis supplied.) In that regard, the Appellate Practice Act demands that an appellant “shall file with the clerk of the appellate court... an enumeration of the errors which shall set out separately each error relied upon . . . and when filed shall become a part of the record on appeal.” OCGA § 5-6-40. Although OCGA § 5-6-40 provides that “[t]he appellate court, by rule, may permit the enumeration to be made a part of the brief,” this Court has not done so. Instead, Court of Appeals Rule 22 (a) clearly mandates that an appellant file a separate enumeration of errors, and Rule 27 (a) (2) further provides that the enumeration of errors required as Part Two of an appellant’s brief “is in addition to the original enumeration of errors required by Rule 22 (a).” (Emphasis supplied.) See also Lewis v. State, 226 Ga. App. 344, 345 (487 SE2d 533) (1997) (Beasley, J., concurring specially).

In reaching the merits of the present case, the majority relies on OCGA § 5-6-48 (f), which provides that “[w]here it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from or that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed.” However, such reliance would render meaningless the exception in OCGA § 5-6-30 which, as stated above, allows this Court to refuse to reach the merits and dismiss an appeal when the appellant has not complied with the clear dictates of the Appellate Practice Act. See OCGA § 5-6-30. Although OCGA § 5-6-40 allows us, by rule, to permit appellants to incorporate their enumeration of errors as part of their brief, we have not done so. By using OCGA § 5-6-48 (f) to reach the merits of this case, we render OCGA § 5-6-40 a nullity.

Similarly, Judge Beasley would reach the merits of the case through the vehicle of OCGA § 5-6-48 (d), which provides that “[a]t any stage of the proceedings, either before or after argument, the court shall by order, either with or without motion, provide for all necessary amendments, require the trial court to make corrections in the record or transcript or certify what transpired below which, does not appear from the record on appeal, require that additional portions of the record or transcript of proceedings be sent up, or require that a complete transcript of evidence and proceedings be prepared and sent up, or take any other action to perfect the appeal and record so that the appellate court can and will pass upon the appeal and not dismiss it. If an error appears in the notice of appeal, the court shall allow the notice of appeal to be amended at any time prior to the judgment to perfect the appeal so that the appellate court can and will pass upon the appeal and not dismiss it.” However, the first sentence of this statute, on its face, only applies to this Court’s authority to order the trial court to perfect a record for appeal. In like manner, the second sentence clearly allows errors in the notice of appeal to be amended at any time before judgment. Nothing in the statute grants this Court the authority to order an appellant to file a separate enumeration of errors as the majority maintains. In addition, this Court, unlike the Supreme Court, has no rule which would allow us to order an appellant to perfect her appeal based upon a violation of one of our rules. See, e.g., Benfield v. State, 224 Ga. 139 (160 SE2d 398) (1968); Napier v. Napier, 222 Ga. 681 (151 SE2d 712) (1966).

In Windsor v. Southeastern Adjusters, 221 Ga. 329 (144 SE2d 739) (1965), the Supreme Court held that where no separate enumeration of errors was filed, the Court could not “adopt the questions allegedly preserved for review in the appellant’s brief as being such specifications of error since the brief is not part of the record but a requirement of this Court under its authority to make rules for the determination of cases.” Thus, the effect of such binding precedent is that we have no jurisdiction to hear the instant appeal.

I stress that I do not wish to exalt form over substance. Rather, I simply recognize that we are bound by Supreme Court precedent, regardless of how much we may wish to liberally construe the rules of this Court. We have the appellant’s enumeration of errors before us; however, since they are only contained in the brief and are thus not a part of the record, we have no authority to rule on them. See Windsor, supra; OCGA § 5-6-40.

The answer in a case such as this, where our rules are clear, is to demand that the appellant accept the consequences of failing to comply with our rules. We should not further dichotomize the distinctions between those lawyers who read and follow the rules, and those lawyers who do not. We should not have a rule which is adhered to by some, but not by others. If the rule is not one which facilitates the appellate process, then pursuant to the authority granted us by OCGA § 5-6-40, we should allow appellants to incorporate their enumeration of errors as part of the record in their briefs. It would be better to abolish the rule than to have a rule that is adhered to at the whim of the bench and bar. Until then, or until the Supreme Court rules otherwise, we should not reach the merits of a case where the enumeration of errors are not properly part of the record on appeal.

Decided December 4, 1998.

Loewenthal & Jackson, Glenn A. Loewenthal, for appellant.

Clifton Lee & Associates, Shoran N Reid, for appellee.

Since Leslie failed to file a separate enumeration of errors as required by Court of Appeals Rule 22 (a), I would dismiss her appeal. Court of Appeals Rule 7; see also Wordu v. State, 216 Ga. App. 552, 553 (1) (455 SE2d 101) (1995); Miles v. Emmons, 234 Ga. App. 487 (507 SE2d 762) (1998) (physical precedent only).

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

       Judge Beasley, citing her own special concurrence in Lewis v. State, supra, claims that OCGA § 5-6-48 (f) does not apply to the instant case because Leslie did not file separate enumerations of error. Contrary to Judge Beasley’s claim, OCGA § 5-6-48 (f) does not limit itself only to appeals in which separate enumerations of error have been filed. By its own terms, the Code section mandates that we consider the merits of any appeal in which it is apparent from any combination of the notice of appeal, the record or the enumerations of error what judgment is appealed from or what errors are asserted. Because the judgment appealed from and the errors asserted in the instant case are apparent, we must consider the appeal.

        Lewis v. State, 226 Ga. App. 344 (487 SE2d 533) (1997).

        Windsor v. Southeastern Adjusters, 221 Ga. 329 (144 SE2d 739) (1965).

        Benfield, v. State, 224 Ga. 139 (160 SE2d 398) (1968) (appeal dismissed for want of timely enumeration of errors); Lowery v. Smith, 225 Ga. 814 (171 SE2d 500) (1969) (appeal dismissed for want of enumeration of errors); Napier v. Napier, 222 Ga. 681 (151 SE2d 712) (1966) (appeal dismissed for want of timely enumeration of errors).

       Supra.

       Ga. L. 1965, p. 18, § 24.

       Supra.

       Supra.

       Supra.

       Compare Russell v. State, 225 Ga. 371, 372 (169 SE2d 124) (1969) (Mobley, J., dissenting).

        Windsor, supra; see Russell v. State, 225 Ga. 371, 372 (169 SE2d 124) (1969) (in Windsor, “no enumerations of error was filed, either as a part of the brief, or separately.” Mobley, J., dissenting.).

       216 Ga. App. 552 (1) (455 SE2d 101) (1995).

       187 Ga. App. 370, 373 (3) (370 SE2d 191) (1988).

       265 Ga. 112, 116 (8) (454 SE2d 761) (1995).

       234 Ga. App. 487 (507 SE2d 762) (1998).


author: Beasley, Judge.

text:
    A98A1552.
    HARRISON et al. v. JENKINS.
    (510 SE2d 345)
   Beasley, Judge.

Mr. and Mrs. Harrison challenge the grant of a directed verdict against them on their claims against Jenkins arising out of an automobile accident. They also contend the court erroneously excluded certain evidence.

Three vehicles were traveling south on Highway 17 in Glynn County on a straight section of the road. Jenkins was in the first car, the Harrisons were following in their pickup truck, and Debbie Shaw was behind in her car. The Harrisons saw Jenkins slow down, as though looking for an address, but she came to a complete stop. She displayed no brake lights, emergency lights, or turn signal. The Harrisons stopped approximately one car length behind Jenkins and were at a complete stop with their brake lights on when they were struck from behind by Shaw. The collision forced the Harrison truck into Jenkins’ car.

At trial, Mrs. Harrison admitted she did not have any problem bringing her truck to a stop without sudden movement and that Shaw was “speeding, tailgating, and all.” Shaw, who was uninsured, admitted she had been following too closely and that she entered into a consent judgment with the Harrisons in which she agreed she was at fault. She stated she could see that Jenkins’ car had no lights on but said she only saw that “at the time of the impact.”

At trial, after presentation of plaintiffs’ case, Jenkins was granted a directed verdict on the ground that her negligence, if any, was not the proximate cause of the collision or Mrs. Harrison’s injuries.

1. A motion for directed verdict shall be granted “[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” OCGA § 9-11-50 (a). A jury following the law could not find otherwise. In making this determination, the court must construe the evidence in favor of the party opposing the motion.

“It is basic in our law that no liability attaches unless the negligence alleged is the proximate cause of the injury sustained.” “Issues of proximate causation generally are reserved for the jury and are not appropriate for summary adjudication.” But there is a limit. “Although what amounts to proximate cause is undeniably a jury question, it will be determined by the court as a matter of law in plain and undisputed cases.”

The general rule applied to this issue was set forth by the Supreme Court in Southern R. Co. v. Webb as follows: “While the general rule is that if, subsequently to an original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote, still if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrong-doer is responsible for all of the consequences resulting from the intervening act.”

The Court went on to explain, “ ‘[a] natural consequence is one which has followed from the original act complained of, in the usual, ordinary, and experienced course of events[, a] result, therefore, which might reasonably have been anticipated or expected. Natural consequences, however, do not necessarily include all such as[,] upon a calculation of chances[,] would be found possible of occurrence, or such as extreme prudence might anticipate, but only those which ensue from the original act without any such extraordinary coincidence or conjunction of circumstances as that the usual course of nature should seem to have been departed from.’ ”

Perry v. Lyons addressed application of this rule to a series of vehicular accidents that provides guidance here. The case involved a 14-vehicle pileup on a fog-enshrouded toll bridge over the Brunswick River. It occurred in three waves. The first six cars were involved in various rear-end collisions which resulted in a blockade of the road. The seven vehicles in the next group were able to stop without colliding with anyone, but they were unable to proceed. Finally, a tractor-trailer collided with the second set of cars, causing several injuries and deaths. One issue raised in resulting lawsuits was whether the injured drivers of the second group could recover damages from the negligent drivers in the first group in addition to the tractor-trailer driver.

The court reasoned: “ ‘The original act of negligence may be passive, that is harmless unless something further occurs but capable of being made dangerous by the operations of some new force. . . . Under such conditions, the fact that an intervening act of a third person is itself negligent, and acts upon the original passive negligence so that injury occurs which otherwise would not have occurred, does not necessarily operate to make the second act of negligence by the third party the sole proximate cause of injury and thus insulate the original wrongdoer from liability where the original wrongdoer at the time of his negligent conduct should have realized that a third person might so act, or, as a reasonable person knowing the situation existing when the act of the third person was done, would not regard it as extraordinary that the third person would so act.’ ”

The court in Perry correctly held that, including the favorable inferences afforded on summary judgment, the issue of whether the negligent drivers from the first group could be liable to the second group required factfinding by a jury. A jury could find that, on a busy highway, under conditions of dense fog and nearly zero visibility, those drivers should have reasonably foreseen that a blockage caused by their negligence would create an extremely hazardous condition on the bridge and could result in subsequent collisions.

Jenkins relies on Herring v. Condit and Tucker v. Star Laundry &c. for the conclusion that in this case there is no “essential causal link” between Jenkins’ alleged negligence and Mrs. Harrison’s injuries because the hazard allegedly caused by Jenkins was “complete and static” with no resultant injuries before the collision occurred. In Tucker, Mrs. Tucker, like Mrs. Harrison, was able to come to a full stop with proper signals when the vehicle in front of her stopped without signaling. A third driver was “driving so fast and in such a reckless manner” that he collided with Tucker. The court found that, as a matter of law, the driver of the vehicle in front of Tucker who “stopp[ed] his truck suddenly and without warning was not a concurring proximate cause” of the accident because Tucker was able to stop after that driver’s negligence was “complete and static.”

Jenkins’ reliance on the “complete and static” language in Tucker is misplaced. First, Perry effectively disapproved Tucker and two other cases, noting that they “do appear to be, in some degree and to some extent, at variance with the rule expounded in the many others, but they have been distinguished, explained or not followed to such an extent that we see little purpose to be served in repeating the procedure here.” Whether one driver’s negligent blocking of the road is superseded by a subsequent driver’s negligence once the initial condition becomes “static and complete,” is not supported by other case law. It is a question of fact in most cases, not an automatic shield just because the first person’s negligent act has ended. What the act produces may create a danger to innocent others.

Using the term “complete and static” to describe the first act of negligence in order to break the causal chain would logically eliminate the possibility that other conditions such as fog, rain, a steep grade, or a known slippery road might mean that the original actor should be liable where he negligently blocks the road under those conditions, even though his own negligence is complete and static. Or, as in this case, the original negligence may have been complete and static for such a short time that a following driver would have a difficult time reacting, especially if that following driver was going too fast, an unfortunate but very common occurrence on our roads. It is at best unclear whether the driver ahead of Mrs. Tucker in Tucker should have foreseen that a speeding driver close behind might ram into Mrs. Tucker if he were to negligently block the road. Tucker appears to have overlooked the foreseeability requirement.

Herring is distinguishable on the facts, and it was unnecessary for the court to rely on the “complete and static” language from Tucker. The plaintiff stopped behind a car which had stopped in an unobstructed lane on a highway behind a multi-car pileup which did not block all lanes of traffic. Two or three minutes later, a third car rammed the plaintiff’s car from behind. The court held that the plaintiff’s injuries were caused by the following driver, not the drivers involved in the pileup, and affirmed summary judgment in their favor on the theory that the following driver’s negligence superseded any negligence of the first driver. This result was correct because a following car ramming into the back of another car which stopped in an unobstructed lane on a highway is not a probable or natural consequence of the original negligence which could have reasonably been foreseen. The fact that the original negligence was static and complete was irrelevant.

In this case, there is evidence that Jenkins was negligent per se, in that OCGA § 40-6-184 (a) (1) provides: “No person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation.” And OCGA § 40-6-123 (c) requires: “No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided in this Code section to the driver of any vehicle immediately to the rear when there is an opportunity to give such signal.” These rules are designed to benefit following drivers. Jenkins came to a complete or almost complete stop allegedly without any signal at a time and place where traffic was “bad.” It is foreseeable that following drivers could become involved in an accident because of the unexpected need to stop and because the following drivers may be driving negligently. A jury could find that Jenkins was partially at fault. Accordingly, we reverse the directed verdict in favor of Jenkins.

Tucker v. Star Laundry &c. and Herring v. Condit are disapproved because they depart from the law to the extent they are based on the conclusion that the chain of causation is broken solely because the initial negligence is “complete and static.” We need not discuss Smith v. Commercial Transp, because there was evidence that Jenkins was negligent per se and a jury could find that she was partially at fault in the accident.

2. Anticipating retrial, we turn to the Harrisons’ second enumeration, that the court erred in excluding an exhibit and Mrs. Harrison’s corresponding testimony that her doctor told her not to return to work.

With regard to Mrs. Harrison’s testimony, the court sustained Jenkins’ objection when Mrs. Harrison’s attorney asked her if any of her healthcare providers instructed her not to work after her injuries. The issue is whether the testimony was admissible under OCGA § 24-3-2. It turns on whether it was offered for the truth of the matter asserted or to show the fact the statement was made. Mrs. Harrison argues that under OCGA § 24-3-2 the testimony should be admissible “to explain conduct and ascertain motives,” so it should be admitted “not as hearsay but as original evidence.” This is correct because the testimony was offered to explain why she did not return to work. This was relevant to whether her lost income was attributable to her injuries.

As for the exhibit, the same rule applies to documents as well as testimony. However, generally the admission of evidence rests on the sound discretion of the court. The documents in question contain irrelevant hearsay in addition to the relevant information probative of the question. The court did not abuse its discretion in refusing admission of the exhibit.

Judgment reversed.

McMurray, P. J., Pope, P. J., Johnson, P. J., Smith, Ruffin, Eldridge, JJ, and Senior Appellate Judge Harold R. Banke concur. Andrews, C. J., concurs in judgment only. Blackburn, J., not participating.

Decided December 4, 1998.

Vincent D. Sowerby, for appellants.

Whelchel, Brown, Readdick & Bumgartner, John E. Bumgartner, Gregory T. Carter, for appellee.

        Hitchcock v. McPhail, 221 Ga. App. 299, 300 (471 SE2d 256) (1996); Lolmaugh v. T.O.C. Retail, 210 Ga. App. 605, 606 (1) (436 SE2d 708) (1993); Hogan v. Pony Express Courier Corp., 195 Ga. App. 592 (1) (394 SE2d 391) (1990).

       (Punctuation omitted.) Dietz v. Becker, 209 Ga. App. 678, 679 (2) (434 SE2d 103) (1993). See OCGA §§ 51-12-3; 51-12-8; 51-12-9.

        Hambrick v. Makuch, 228 Ga. App. 1, 2 (2) (491 SE2d 71) (1997).

        McAuley v. Wills, 251 Ga. 3, 7 (5) (303 SE2d 258) (1983).

       116 Ga. 152, hn. 1 (42 SE 395) (1902).

       Id.

       Id. at 155 (1).

       124 Ga. App. 211 (183 SE2d 467) (1971).

       The Harrison accident occurred on the same highway in the same county as the accident in Perry v. Lyons.

       Id. at 214.

       Id.

       (Citation omitted.) Id. at 215-216 (1) (b). See Williams v. Grier, 196 Ga. 327, 336 (2) (26 SE2d 698) (1943).

        Perry, supra, 124 Ga. App. at 219 (1) (b).

       218 Ga. App. 855 (463 SE2d 532) (1995).

       100 Ga. App. 175 (110 SE2d 416) (1959).

       Id. at 176.

       Id. at 177.

        Perry, supra, 124 Ga. App. at 218.

       See, e.g., Washington v. Kemp, 97 Ga. App. 235, 236-241 (102 SE2d 910) (1958) (regardless of whether one, two, or five cars have stopped as a result of the first driver’s negligence, a following driver’s negligence “a few minutes” later in colliding with the stopped cars did not supersede the first driver’s negligence as a matter of law); Atlanta &c. Cab Co. v. Atlanta Taxicabs, 104 Ga. App. 89, 92-93 (6) (121 SE2d 175) (1961) (error to charge that plaintiff could not recover from first driver who negligently stopped if any of the other drivers, by the exercise of ordinary care, could have avoided the consequences of first driver’s negligence).

        Herring, supra, 218 Ga. App. at 855.

       Id. at 856.

       See Central Anesthesia Assoc., P.C. v. Worthy, 173 Ga. App. 150, 152-153 (325 SE2d 819) (1984) (violation of statute may amount to negligence per se); Cox v. Cantrell, 181 Ga. App. 722, 724 (5) (353 SE2d 582) (1987) (violation of rules of road prima facie establishes negligence per se in absence of valid defense).

       220 Ga. App. 866 (470 SE2d 446) (1996).

        Ross v. State, 179 Ga. App. 283 (346 SE2d 87) (1986); Jackson v. State, 256 Ga. 536 (350 SE2d 428) (1986).

       See Lloyd v. Tyson, 195 Ga. App. 48 (392 SE2d 551) (1990) (plaintiff’s testimony of doctor’s statement was relevant to why plaintiff ceased to seek treatment for his injuries). Cf. Highsmith v. Fillingim, 171 Ga. App. 548, 549 (320 SE2d 391) (1984) (explanation of why plaintiff did not go to hospital would have been admissible under OCGA § 24-3-2 if it had.not been double hearsay).

       See, e.g., City of Brunswick v. Atlanta Journal &c., 214 Ga. App. 150, 152 (2) (447 SE2d 41) (1994).

        Truck Parts & Svc. v. Rutledge, 211 Ga. App. 166, 168 (438 SE2d 404) (1993).