text:
    A90A2296.
    BRUNSWICK FLOORS, INC. v. CARTER et al.
    (403 SE2d 855)
   Birdsong, Presiding Judge.

Brunswick Floors, Inc., sued James and Rozine Carter for payment of $4,807.12 for floor covering installed in the Carters’ home while it was being built. Brunswick Floors first billed the contractor, Fendig, who had an account at Brunswick Floors. After Fendig declared bankruptcy, Brunswick Floors brought this suit against the Carters upon a “Proposal” which Mrs. Carter signed. The Carters paid Fendig the entire contract price for their home.

The trial court denied Brunswick Floors’ motion for directed verdict. The jury returned a verdict in favor of Mr. and Mrs. Carter; the trial court denied judgment n.o.v. to Brunswick Floors and awarded attorney fees and expenses of litigation to the Carters on grounds the suit had lacked “substantial justification.” Held:

1. Appellant contends it had an unambiguous contract with the Carters for payment. This document is entitled “Proposal.” It provides: “We . . . submit specifications and estimates for: [specified floorings].” It then provides: “We propose hereby to furnish material and labor ... for the sum of [$3,542], payment to be made as follows: [blank].”

This document appears on its face to be what it says it is: a “proposal” of “specifications and estimates.” It contains no provision for payment by the Carters and no provision as to how payment is to be made. Although the “acceptance” provides “[p]ayment will be made as outlined above,” there is no such outline of payment, but merely appellant’s proposal “to furnish material and labor ... for the sum of [$3,542].” The “acceptance” signed by the Carters is an approval of the specifications and estimates, but this approval does not amount to any agreement to pay. Appellant says that according to Harrell v. Stovall, 232 Ga. 359, 360 (206 SE2d 493), “where no mention is made as to the time of payment the legal construction is that it is payable presently,” but in that case there was obviously a promise to pay, “with a definite down payment and described instalment payments.”

Before the question of the meaning of a contract is put to a jury, the trial court must first find that it is ambiguous; to determine whether the contract is ambiguous, the trial court must first apply the rules of contract construction. See generally Capital Ford Truck Sales v. U. S. Fire Ins. Co., 180 Ga. App. 413, 417-418 (349 SE2d 201), rev’d on other grounds at 257 Ga. 77 (355 SE2d 428). These rules allow a consideration by the trial court of “[a]ll the attendant and surrounding circumstances” (OCGA § 13-2-2 (1); see Brooke v. Phillips Petroleum Co., 113 Ga. App. 742 (149 SE2d 511)) and “[t]he custom of any business or trade.” OCGA § 13-2-2 (3); MacDougald Constr. Co. v. State Hwy. Dept., 59 Ga. App. 708 (2 SE2d 197), rev’d on other ground, 189 Ga. 490 (6 SE2d 570). In light of the attendant circumstances and the custom in the trade, this document is merely the owners’ approval of a subcontractor’s “Proposal” of specifications and cost of materials and labor, which both the subcontractor (appellant) and the owners expected the contractor to pay. Since it contains no promise by the Carters to pay, we find no ambiguity in it.

The evidence and all reasonable deductions, viewed in favor of the jury’s verdict, do not demand a finding for appellant; the trial court correctly denied appellant’s motion for judgment n.o.v., and could not have erred in denying directed verdict. OCGA § 9-11-50; see Gordon v. Frost, 193 Ga. App. 517, 518 (388 SE2d 362).

2. Appellant’s complaints as to certain jury charges and admission of evidence are without merit. In any case, since this “Proposal” is not ambiguous and does not bind the Carters to pay, the trial court would have been justified to grant judgment to them. Appellant would not be entitled to a verdict in any case, and so is not entitled to a reversal of this verdict on grounds of any trial error.

Decided March 4, 1991

Rehearing denied March 15, 1991

W. Douglas Adams, for appellant.

Lee & MacMillan, Thomas J. Lee, for appellees.

3. OCGA § 9-15-14 authorizes an award of attorney fees and expenses of litigation where the trial court finds the case was brought or defended without “substantial justification.” OCGA § 9-15-14 (a), (b) and (c). Inasmuch as we find no ambiguity as to the meaning of this “Proposal” which could result in a verdict for appellant, and under the other facts of the case, the trial court did not abuse its discretion in finding the suit lacked “substantial justification,” that is, that it was “substantially groundless.” See OCGA § 9-15-14 (b). The award was supported by evidence admitted upon motion properly made.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A90A1995.
    TRAYLOR et al. v. MOYER.
    (404 SE2d 320)
   Cooper, Judge.

Appellant, Christopher Traylor, a minor, and his parents brought this medical malpractice action alleging that appellee negligently ordered that the drug Pitocin be given to appellant Mary Traylor (“Mrs. Traylor”) while she was in active labor. Mrs. Traylor experienced an immediate reaction to the drug, undergoing uncontrollable 90-second contractions every three minutes for 27 minutes until she had an uncontrolled non-sterile delivery on a labor stretcher without | physician assistance en route to the delivery room. Appellants charged that as a result of “the Pitocin induced traumatic labor and ¡ expressed delivery,” the child was deprived of adequate blood circulation and oxygen distribution, which caused permanent disability. The trial court granted appellee’s motion for summary judgment finding that the affidavit of appellants’ expert did not “set forth the standard of acceptable professional conduct or a deviation from that standard] by Defendant Moyer which proximately caused Plaintiff’s injuries’ and did not “create a genuine issue of material fact to be resolved by] a jury.” The trial court also held that the parents’ claim for past and! future medical expenses was barred by OCGA § 9-3-71. This appeal] followed.

1. Appellants enumerate as error the grant of summary judgment! contending that the affidavit of their expert was sufficient to create al genuine issue of fact as to appellee’s negligence. In his affidavit, appellants’ expert stated his familiarity “with the standard of care required of obstetric physicians generally in the treatment and care of pregnant women and the delivery of infants” and specifically, “the standard of care required in the use of Pitocin in the delivery process.” He averred that Pitocin was ordered by appellee and given intravenously without first examining Mrs. Traylor or being present in the hospital during the administration of the drug and that Mrs. Traylor had contractions 90 seconds in duration every three minutes for 27 minutes after the Pitocin infusion until the “precipitous uncontrolled non-sterile delivery.” He concluded that “the act of giving Pit-ocin to a multiparous patient without prior examination by a physician, without any obstetric indication and without a physician being present during initiation of the infusion falls below the standard care for physicians, nurses and hospitals under like and similar circumstances.” The expert added that “[i]t is a well known medical fact that prolonged uterine contractions in labor can produce fetal hypoxia.” A “plaintiff cannot prevail on motion for summary judgment by merely presenting a conclusory opinion that defendant was negligent or failed to adhere to the professional standard. [Cit.] She must state the particulars. She must establish the parameters of the acceptable professional conduct and set forth how or in what way the defendant deviated therefrom. [Cits.]” (Emphasis in original.) Loving v. Nash, 182 Ga. App. 253 (1) (355 SE2d 448) (1987). “[E]very defendant has the right to be advised what harm he has done, and in every case a plaintiff must show prima facie that a negligent act has been committed.” Id. at 256. However, “ ‘(e)xplicit conclusory pronouncements out of the mouths of those clothed with the mantle of evidentiary expertise are not essential.’ [Cit.] The language in the affidavit may lack the precision indicated from a literal reading of our opinions. But utilization of a common-sense approach to its sufficiency as mandated by Jackson v. Gershon, [251 Ga. 577 (308 SE2d 164) (1983)], with a view of the proof in favor of the party opposing the motion, requires our holding that genuine issues of material fact remain.” Hall v. Okehi, 194 Ga. App. 721 (2) (391 SE2d 787) (1990). In our view, the affidavit indicates that appellants’ expert believed that the standard of care of physicians under like and similar circumstances required that there be an examination, some obstetric indication and/or the presence of a physician during its infusion, before Pit-ocin is given to a multiparous patient in labor arid that Mrs. Traylor’s traumatic delivery and the child’s loss of oxygen resulted from appel-lee’s deviation from the standard. Therefore, the affidavit was sufficient to create a genuine issue of fact as to appellee’s negligence and proximate cause, and the trial court erred in concluding otherwise and in granting summary judgment to appellee. See Hooker v. Headley, 192 Ga. App. 629 (385 SE2d 732) (1989).

Decided March 12, 1991.

Simmons & Toliver, James C. Simmons, Jr., A. Leroy Toliver, for appellants.

Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, Love & Willingham, Daryll Love, Hezekiah Sistrunk, Jr., Thomas K. Foster, for appellee.

2. Appellants contend that the trial court’s order granting summary judgment to appellee as to the parents’ recovery of medical expenses could be read to bar the child’s recovery of future medical expenses. We disagree. The trial court’s order entered on March 16, 1990 made it abundantly clear that the child’s action was not time-barred, and the subsequently entered Supplemental Order, while granting summary judgment to appellee, did so as to the parents’ claim for medical expenses which was time-barred according to OCGA § 9-3-71.

Appellants also urge this court to interpret the 1987 amendment to OCGA § 9-3-73 to allow a minor to recover his own medical expenses from the point of filing forward, even in instances in which the claim is brought during his minority. We do not find, however, that the change in the statute of limitation as to when a minor may bring an action for medical malpractice altered the holding in Rose v. Hamilton Med. Center, 184 Ga. App. 182 (361 SE2d 1) (1987), that the right to recover the medical expenses of a minor is vested with the parents. This enumeration of error is without merit.

Judgment reversed in part and affirmed in part.

Banke, P. J., and Birdsong, P. J., concur.


author: Birdsong, Presiding Judge.

text:
    A90A2081.
    ARTIS et al. v. GAITHER.
    (404 SE2d 322)
   Birdsong, Presiding Judge.

We granted an application by Raymond Artis and Josephine Freeman, the appellants, to bring an interlocutory appeal from an or der granting summary judgment to the Motors Insurance Company (“MIC”), Freeman’s uninsured motorist insurance carrier, because there was no service of process upon MIC within the period of the statute of limitation. See Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416).

“Because a grant of summary judgment is subject to direct ap peal [compare Williams v. Thomas, 183 Ga. App. 51 (1) (357 SE2 872); and Peeples v. City of Atlanta, 189 Ga. App. 888 (1) (377 SE2d 889)] see OCGA § 9-11-56 (h), and because the interlocutory appeal procedure is applicable only to those orders, decisions, and judgments which are ‘not otherwise subject to direct appeal’ (OCGA § 5-6-34 (b)), we conclude that the application was improvidently granted; and the appeal is accordingly dismissed.” Terrell v. City Wide Cab, 180 Ga. App. 184 (348 SE2d 575).

Decided March 12, 1991.

William M. Andrews, for appellants.

Swift, Currie, McGhee & Hiers, Guerry R. Moore, William P. Claxton, for appellee.

Appeal dismissed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A2322.
    CLASSIC CADILLAC, L. P. et al. v. WORLD OMNI LEASING, INC.
    (404 SE2d 452)
   Cooper, Judge.

This appeal arises from two separate but virtually identical actions brought by appellee, World Omni Leasing, Inc. (“World”) against appellants, Classic Cadillac and Potamkin Subaru d/b/a Classic Subaru (hereinafter both referred to as “Classic”). Classic appeals from the grant of summary judgment to World on the complaint and on the counterclaim filed by Classic and the denial of Classic’s cross-motion for partial summary judgment.

Beginning in 1988, Classic established a working relationship with Heritage Auto Leasing, Inc. (“Heritage”), a licensed automobile dealership which derived almost all of its revenue from the sale and assignment of lease agreements and the vehicles subject to those leases. When Classic could not arrange financing for one of its customers, Classic would send the customer to Heritage and Heritage would attempt to arrange the financing. If Heritage were able to arrange financing, the typical arrangement between Classic and Heritage involved Classic’s delivery of a car to Heritage for seven days with the mutual understanding that during the seven-day period Heritage would enter into the lease agreement with the customer, deliver ■he car to the customer, and sell the car and lease agreement to the Brompany financing the transaction, oftentimes World. Heritage and KVorld did business pursuant to a World “Dealer Agreement,” Bvhereby World appointed Heritage as a “dealer” for the purpose of ■arranging leasing transactions between World and third parties. Heritage was also responsible for arranging for the cars to be titled in World’s name.

The transactions which resulted in these lawsuits occurred on different occasions, but in essentially the same manner, as follows: Both customers were interested in purchasing cars being sold by Classic. However, Classic was unable to arrange financing for the customers and contacted Heritage to see if Heritage could arrange some alternate type of financing, specifically a lease arrangement. Classic sent Heritage each customers’ credit application, which Heritage sent to World to see if World were willing to enter into a lease agreement with the customer. Upon approval by World, lease agreements were entered into between World and the customers. In one case, the lease between World and the customer was executed at Heritage’s office and in the other case the lease was executed at Classic; however, both leases were signed on behalf of World by Dwayne Clark, president of Heritage. Both lease agreements provided that World was the lessor. After completing the necessary paperwork, the customers were given possession of the cars. The manufacturers certificates of origin were kept by Classic. The agreement between Classic and Heritage was that Classic would give the customers the cars, and Heritage would give Classic drafts for the amount of the cars which Classic would not present for payment. At the end of seven days, Heritage would give Classic checks for the amount of the cars. Classic knew that during the seven-day period, Heritage would sell the subject vehicles to World in connection with the lease agreements, and to facilitate that transaction, Classic provided Heritage with a copy of the invoices for the cars. World paid Heritage for the cars, but at the end of the seven-day period, Heritage did not pay Classic for the cars. Classic then contacted the respective customers and asked them to return the cars to Classic in exchange for other vehicles. Both customers returned the cars, and World subsequently sued Classic under a theory of conversion. Classic filed a counterclaim against World claiming that Heritage was World’s agent, and therefore, World was liable foi Heritage’s failure to pay for the cars. The parties filed cross-motions for summary judgment, and the trial court denied Classic’s motior and granted World’s motion, concluding that World took title to the cars free of any security interest held by Classic.

1. Classic contends in its first enumeration of error that Worlc was not entitled to summary judgment on its theory of entrustment OCGA § 11-2-403 (2) provides: “Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power t( transfer all rights of the entruster to a buyer in ordinary course o business.” Entrusting is defined as “any delivery and any acquies cence in retention of possession regardless of any condition expresse< between the parties to the delivery or acquiescence. . . .” OCGA 11-2-403 (3). Classic argues that the cars were not entrusted to Heri tage because they were delivered directly to the customers. We disagree. Although the customers took physical possession of the cars, the delivery of the cars was simultaneous with the execution of the lease agreements. It was not until the cars were leased by Heritage, on behalf of World, that the customers were allowed to take possession of the cars. Therefore, Classic entrusted Heritage with possession of the cars for the purpose of being able to execute the lease agreements, and the inherent risk of not receiving payment from Heritage is one properly borne by the entruster. See International Harvester Credit Corp. v. Assoc. Fin. Svcs. Co., 133 Ga. App. 488 (1) (211 SE2d 430) (1974). Accordingly, we find that since the cars were entrusted to Heritage, a merchant who dealt in goods of that kind, Heritage had the power to transfer all of its rights to a buyer in the ordinary course of business. OCGA § 11-2-403 (2).

2. Classic argues that even if the cars were entrusted to Heritage, the return of the cars to Classic revested titled in Classic. We do not agree. The return of the cars by the lessee was not authorized by World, the buyer in the ordinary course of business. Because World was the entity that obtained certain rights as a result of the entrustment of the cars to Heritage, World was the only entity capable of revesting Classic with its rights to the cars. Inasmuch as World did not take any action to revoke its rights to the cars, Classic was not revested with title when the lessees, acting without the authority of their lessor, returned the cars to Classic. We find that Walker v. Costello, 187 Ga. App. 196 (1) (369 SE2d 527) (1988), relied on by Classic, is inapposite.

3. Classic’s remaining enumerations of error can be decided by addressing Classic’s contention that World was not a buyer in the ordinary course of business and therefore did not take free of Classic’s security interest. However, the case sub judice is controlled adversely to Classic by First Nat. Bank &c. v. Atlanta Classic Cars, 184 Ga. App. 784 (2) (363 SE2d 16) (1987). The transaction between Classic, Heritage and World involved a sale and resale which were “intimately connected” (Crenshaw v. Wilkes, 134 Ga. 684 (68 SE 498) (1910)), as opposed to “two distinctly separate contracts for the sale of automobiles” (Dan Pilson Auto Center v. DeMarco, 509 NE2d 159 (Ill.1987)). If Classic intended to reserve title to the cars sold to Heritage, it should have informed World of that intention. See Crenshaw v. Wilkes, supra.

We cannot conclude as Classic argues that World acted in a com-Imercially unreasonable manner by purchasing a car without the title ¡and without having seen the car. World occupied the same position as ¡the bank in First Nat. Bank &c. v. Atlanta Classic Cars, supra, and ¡accordingly, was a buyer in the ordinary course of business.

I Nor do we find any merit to Classic’s argument that World cannot be a buyer in the ordinary course of business because Heritage was World’s agent. World submitted an affidavit which specifically denied the existence of an agency relationship with Heritage for the purpose of Heritage purchasing automobiles from Classic. Although Heritage may have been World’s agent for the limited purpose of arranging the lease and reselling the car to World, this does not “authorize a finding that [Heritage] was an agent of [World] for the original sale of the automobile, the only relationship which would bind [World], as a principal, to any [action or non-action of Heritage in its purchase of the cars from Classic].” Ennis v. Atlas Fin. Co., 120 Ga. App. 849 (3) (172 SE2d 482) (1969). Classic has pointed to no evidence sufficient to meet World’s affidavit denying the agency relationship, therefore no triable issue of fact existed as to an agency relationship. Chrysler Credit Corp. v. Barnes, 126 Ga. App. 444 (2) (191 SE2d 121) (1972). Thus, the trial court did not err in finding that World was a buyer in the ordinary course of business and took free of any security interest retained by Classic. Accordingly, summary judgment was properly granted to World.

Decided March 12, 1991.

Smith, Gambrell & Russell, Stephen M. Forte, Andrea Donef, for appellants.

Levine & D’Alessio, Stephen H. Block, for appellee.

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


author: Carley, Judge.

text:
    A90A1590.
    GILLILAN v. STILL et al.
    (404 SE2d 445)
   Carley, Judge.

After dismissal of a warrant which had been issued for appellant-plaintiff’s arrest on an arson charge, he filed the instant action against appellee-defendants. In his complaint, appellant alleged a number of intentional tort claims and, in their answer, appellees denied the material allegations of those claims. After discovery, appellees moved for summary judgment as to all claims against them and the trial court granted their motion. Appellant appeals from the trial court’s grant of summary judgment in favor of appellees.

1. Insofar as appellant relies upon his arrest on a criminal warrant as a basis for recovery, the trial court correctly granted summarj judgment in favor of appellees as to the claims for malicious abuse oi use of process. “An action will not lie for the malicious abuse or th< malicious use of criminal process, such [causes] of action being appli cable only to civil process. Where a criminal process, valid on its face, has been maliciously sued out without probable cause, an action for malicious arrest or malicious prosecution is the only remedy.” Grist v. White, 14 Ga. App. 147 (2) (80 SE 519) (1914). See also Yost v. Torok, 256 Ga. 92, 93, (3), fn. 1 (344 SE2d 414) (1986).

Decided February 22, 1991

Rehearing denied March 13, 1991

Dana G. Gillilan, pro se.

Richard H. Still, Jr., pro se.

2. Insofar as appellant seeks to recover under a slander theory, summary judgment was correctly granted in favor of appellees. The unrefuted evidence of record shows that the statements attributed to appellees either were never made, or were not slanderous, or were true, or were otherwise privileged. See generally Davis v. Trusthouse Forte Hotels &c., 195 Ga. App. 768, 769 (2) (395 SE2d 235) (1990).

3. The trial court correctly granted summary judgment in favor of appellees as to appellant’s claims for false imprisonment and malicious prosecution. El-Amin v. Trust Co. Bank, 171 Ga. App. 35 (318 SE2d 655) (1984).

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A90A1671.
    PEOPLES v. GUTHRIE.
    (404 SE2d 442)
   Birdsong, Presiding Judge.

Elizabeth Peoples sued Mickie Harrison Guthrie for slander and intentional infliction of emotional distress, arising when Ms. Guthrie, who was a supervisor at the Georgia Retardation Center where Ms. Peoples worked, accused Peoples of cheating on a test. The jury awarded the plaintiff Peoples compensatory damages of $17,500 with punitive damages of $110,000 for the count of slander, and awarded ¡ompensatory damages of $62,000 with punitive damages of $62,000 :or the count of intentional infliction of emotional distress.

The trial court, on the defendant’s motion for judgment n.o.v., struck the award of punitive damages for slander, and struck all dam-iges awarded for intentional infliction of emotional distress.

The evidence showed that when appellant Peoples was taking her Examination in an office area, the defendant Guthrie came in and, af-Her first asking appellant to remove her purse from her desk to the Moor, demanded to look inside the plaintiff’s purse. Appellant, in Home shock and surprise, refused. Guthrie then asserted appellant Hras cheating; she went to an administration desk nearby and stated she wanted a certain form because she had caught an employee cheating. After Guthrie went back to her office, she called appellant on the telephone and told her she was not going to get the position anyway.

Appellant showed evidence that she suffered great emotional distress by being accused of cheating in the hearing of other employees, and that the center employees were prone to gossip and several employees confronted the plaintiff about having been caught cheating. A psychologist testified Ms. Peoples suffered from Traumatic Stress Syndrome and exhibited symptoms of very great stress.

Appellant’s evidence showed this was not the type of test that could be cheated on, and that she had scored the highest score among examinees when she had taken the same test for the same position (night shift) four years earlier, and that Guthrie knew this. There is no evidence appellant was in fact cheating; rather Guthrie testified she saw a piece of paper in appellant’s purse that looked like a copy of the test. Held:

1. There is evidence in this case of the inferred malice which will support compensatory damages for slander pursuant to OCGA § 51-5-5 (see Melton v. Bow, 145 Ga. App. 272, 273 (243 SE2d 590)), but there is no evidence of the actual malice necessary to support the award of punitive damages for slander. See Macon Telegraph Pub. Co. v. Elliott, 165 Ga. App. 719, 721 (302 SE2d 692).

The evidence, construed in favor of the verdict according to the rules for determination of judgments n.o.v. (see Melton, supra at 274; OCGA § 9-11-50 (b); Gordon v. Frost, 193 Ga. App. 517, 522 (388 SE2d 362)) shows that two employees overheard Guthrie accuse appellant of cheating, but there is no evidence Guthrie deliberately and directly broadcast the accusation to any non-privileged employee. See Melton, supra at 273; Walter v. Davidson, 214 Ga. 187 (104 SE2c 113). There is no evidence that prior to this incident Guthrie bore appellant any ill will or that there had ever been difficulty betweer them. There is no evidence the defendant knew the plaintiff was noi cheating and in the hearing of others deliberately made the accusa tion out of spite or other animus amounting to actual malice. Th< evidence shows Guthrie did believe she had reason to suspect appel lant was cheating; although the jury found she clearly was mistakei in this belief, and the evidence authorizes a finding she was negligen or imprudent or even careless, it does not authorize a conclusion tha her accusations were made “ ‘with knowledge that (the defamation was false or with reckless disregard of whether it was false or not.’ Macon Telegraph Pub. Co., supra, p. 721. Accordingly, the evidenc does not support an award of punitive damages on the slander couni and the trial court did not err in striking that award.

2. Construing the evidence and every reasonable inference there from in favor of the verdict, we find the evidence does not support a: award for the tort of intentional infliction of emotional distress.

The compensatory award for slander redresses the damages arising from Guthrie’s actions in broadcasting her accusation of cheating. If appellant is not to receive a double recovery on account of Guthrie’s conduct in making other persons aware of her accusation, then obviously the claim for intentional infliction of emotional distress must be based solely upon Guthrie’s conduct directly toward the plaintiff.

Guthrie’s conduct to appellant, independent of any slander, does not rise to the level of “intentional infliction of emotional distress” justifying the award of damages in this state. In Moses v. Prudential Ins. Co. of America, 187 Ga. App. 222, 225 (369 SE2d 541), we held, it is not enough that appellant’s conduct in a given situation is intentional or that it is wilful and wanton. In order to warrant recovery under either theory, the conduct also must be of such serious import as to naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress. Otherwise, the conduct will not rise to the requisite level of outrageousness and egregiousness. Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 229-230 (335 SE2d 445); Thomas v. Ronald A. Edwards Constr. Co., 163 Ga. App. 202 (2) (293 SE2d 383). . . . The (Restatement (Second) of Torts, [Ch. 2, Emotional Distress, § 46 (1)], comment d . . . observes that: ‘(t)he liability clearly does not extend ¡to mere insults, indignities, [threats], annoyances, petty oppressions, r other trivialities. The rough edges of our society are still in need of filing down, and in the meantime plaintiffs must necessarily be xpected and required to be hardened to a certain amount of rough anguage, and to occasional acts that are definitely inconsiderate and nkind. There is no occasion for the law to intervene in every case here someone’s feelings are hurt.’ ”

A false accusation of dishonesty or lack of integrity in connection ith one’s employment conduct is undoubtedly a distressful, even ‘horrifying” and traumatizing insult, but it is a common vicissitude of rdinary life. We held such conduct not to be the intentional inflic-ion of emotional distress, in Crowe v. J. C. Penney, 177 Ga. App. 586 340 SE2d 192); Bridges v. Winn-Dixie of Atlanta, supra; Arrowsmith Williams, 174 Ga. App. 690 (331 SE2d 30); see also Sossenko v. Michelin Tire Co., 172 Ga. App. 771 (324 SE2d 593).

Emotional distress inflicted by another is not an uncommon con-ition; emotional distress “ ‘includes all highly unpleasant mental re-ctions such as fright, horror, grief, shame, humiliation, embarrass-ent, anger, chagrin, disappointment, worry, and nausea. It is only here it is extreme that liability arises.’ ” Bridges, supra at 230. The law intervenes only where the distress inflicted is so severe at no reasonable man could be expected to endure it’ ” Id. It is not the severity of a plaintiff’s reaction that controls in these cases: “ ‘The distress must be reasonable and justified under the circumstances, and there is no liability where the plaintiff has suffered exaggerated and unreasonable emotional distress, unless it results from a peculiar susceptibility to such distress of which the actor has knowledge.’ ” Id. See, e.g., Gordon v. Frost, supra. There was no evidence Guthrie, or anyone else, had any knowledge of such peculiar susceptibility to distress as appellant had in this case.

Decided February 19, 1991

Rehearing denied March 13, 1991

Russell & Herrera, D. Lynn Russell, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Mary Foil Russell, Assistant Attorneys General, for appellee.

We find as a matter of law that the defendant’s conduct, independent of her slander, is not the intentional infliction of emotiona distress for which the law allows a recovery. Accordingly, the tria court did not err in granting judgment n.o.v. to Guthrie on this claim.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A1679.
    WILLIAMS v. THE STATE.
    (404 SE2d 296)
   Birdsong, Presiding Judge.

Bernard Williams appeals his conviction for violating the Georgia Controlled Substances Act by possessing cocaine. He contends thar the trial court erred by admitting in evidence a statement taken bj the police after he asserted his right to remain silent, that the tria court erred by admitting in evidence certain physical evidence be cause the State failed to establish the chain of custody and also errecH by denying his oral motion to suppress the evidence. He also contendí the trial court erred by excusing one of the jurors and by failing tl grant a mistrial after certain jurors overheard the argument of couni sel on this issue. Held: I

1. Williams argues that a statement he made, which in effect adl mitted ownership of the drug, should have been excluded because il was secured in violation of his right to remain silent. Although thl transcript of the Jackson-Denno hearing shows that Williams twicl asserted his right to remain silent before the statement was made, thl evidence also supports, and the trial court found, that the statemenl was made spontaneously and voluntarily without questioning by thl police sometime later.

“On appeal, where the evidence is in conflict, the trial court’s findings on factual determinations and credibility will be upheld unless clearly erroneous. Short v. State, 256 Ga. 165, 167 (345 SE2d 340); Head v. State, 191 Ga. App. 262, 264-265 (381 SE2d 519). Our review of the record shows that the trial court’s determinations were not clearly erroneous, and there was no error in the admission of the statement.” Chastain v. State, 196 Ga. App. 50, 52 (395 SE2d 570).

2. Williams argues that the trial court erred by admitting the drugs in evidence because the State failed to prove the chain of custody. He makes this argument because one chemist who analyzed the drug at the GBI crime lab did not testify and thus there was no testimony about the evidence while it was in his custody. Williams, however, makes no specific allegation that the evidence was tampered with, or that the evidence seized was not that analyzed and subsequently admitted in evidence.

The transcript shows that because this chemist was attending a special class, another chemist (also employed by the GBI) received the evidence from the first chemist, analyzed the evidence, and then testified about the results of his analysis. Additionally, the police officer who assumed custody of the evidence at the scene of the search also testified about the evidence while it was in his custody and also identified the evidence which was admitted as that seized during the search. Moreover, the officer who transported the evidence to the crime lab testified and accounted for the evidence while in his custody.

Where the State seeks to introduce evidence of a fungible nature, it need only show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The fact that one of the persons in control of a fungible substance does not testify at trial does not, without more, make the substance or testimony relating to it inadmissible. The trial court was authorized to conclude that the state had met its burden with respect to the establishment of the chain of custody in the present case. Myers v. State, 196 Ga. App. 104, 105 (395 SE2d 372). “There being, at most, bare speculation of tampering or substitution, the trial court correctly admitted the cocaine into evidence. Johnson v. State, 143 Ga. App. 169, 170 (1) (237 SE2d 681) (1977).” Langham v. State, 196 Ga. App. 71, 72 (395 SE2d 345).

I 3. Williams contends that the trial court erred by excusing from che jury the only black juror without a showing of harm to the jury process and by not granting a mistrial because some of the jurors Iverheard some of the argument on this issue. The evidence shows ihat one day after trial was adjourned, a police officer saw Williams litting in his car with his wife, then a co-defendant, talking to this juror, who was standing next to the car in an alley, and that when Williams saw they had been observed, he drove away quickly. Although Williams testified that he was only trying to give this elderly juror a ride home, the evidence plainly shows that he knowingly and intentionally approached a juror with the specific intent of having additional extended opportunity to communicate with her while secluded in his automobile. The transcript also shows that Williams was well aware of the potential benefit of juror misconduct because earlier proceedings in the case terminated in a mistrial because of one juror’s actions. Further, the record shows the trial court ascertained that the jurors who overheard comments of counsel would be able to decide the case fairly, and the trial court gave appropriate instructions to the remaining jurors.

As these allegations arise from Williams’ intentional misconduct, we will not consider them. “[One] cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided in causing. . . . Induced error is an inadequate and inappropriate basis for a claim of prejudice.” Locke v. Vonalt, 189 Ga. App. 783, 787 (377 SE2d 696); accord Hawkins v. State, 195 Ga. App. 739 (2) (395 SE2d 251). “Last, but by no means the least reason, the law will not permit an individual to profit from his own wrong. Fuller v. Fuller, 211 Ga. 201, 202 (84 SE2d 665).” Ramsey v. State, 189 Ga. App. 91, 95 (375 SE2d 63). To do otherwise would only endorse misconduct of this nature.

4. Williams also complains that the trial court erred by refusing to permit him to amend the grounds of his oral motion to suppress. Although OCGA § 17-5-30 (b) requires that motions to suppress be in writing, the record shows the trial court permitted Williams to make an oral motion to suppress because information was belatedly provided by the State. Williams contends, however, that the trial court should have let him amend his oral motion because he only learned during presentation of evidence on the motion that the police sought “no-knock” authority, but the face of the search warrant did not grant that authority.

There was no error. Having granted Williams an exception to the! requirements of OCGA § 17-5-30 (b), the trial court did not err byj refusing to permit Williams to amend his motion. Compare Boatright v. State, 192 Ga. App. 112, 117-120 (385 SE2d 298). Prior to making! his oral motion, Williams had the search warrant which did not con-j tain “no-knock” authority; Williams was present when the warrant! was executed and thus knew what procedures were followed. There-i fore, the fact that the police sought “no-knock” authority added ncl new information. The trial court did not abuse his discretion by refus-1 ing to permit Williams to amend his motion to add a new ground. |

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.

Decided March 1, 1991

Rehearing denied March 13, 1991.

Patton & Price, Charles G. Price, for appellant.

Stephen F. Lanier, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellee.


text:
    A90A1753.
    SOUTHEAST CONSULTANTS, INC. et al. v. O’PRY.
    (404 SE2d 299)
   Birdsong, Presiding Judge.

D. Michael O’Pry sued Benny L. Brunner and Southeast Consultants, Inc., engineering and land surveyors who were subcontractors on O’Pry’s new house, for negligence in performing percolation tests prior to installation of a septic tank. Three months after O’Pry purchased the new house for $117,500, the noxious condition of the septic tank manifested itself. The jury rendered a verdict for O’Pry for 5125,000. Brunner and Southeast Consultants appeal. Held:

1. Appellants contend they were entitled to judgment n.o.v. on grounds the plaintiff has no standing to sue because his contract was with the builder and not with appellants.

It is well settled that privity is not necessary to found a suit in íegligence. Georgia-Carolina Brick &c. v. Brown, 153 Ga. App. 747 266 SE2d 531). The fact that plaintiff’s contract was with another loes not prevent plaintiff from seeking damages for negligence. One vho in the course of his business, profession or employment supplies alse information is subject to liability for damages caused by others’ ustifiable reliance upon the information, where he fails to exercise easonable care or competence in providing the information, and yhere the loss is suffered by one for whose benefit he supplies the nformation or knows that the recipient intends to supply it, and /horn he intends the information to influence or knows that the re-ipient so intends. Robert & Co. Assoc. v. Rhodes-Haverty Partnerhip, 250 Ga. 680 (300 SE2d 503). Thus, where the engineer knows hat prospective purchasers could rely on his report, a lack of privity dll not shield him from liability to the foreseeable prospective pur-hasers. Id. It was foreseeable to appellants that the person directly ijured as the result of their negligence would be the purchaser of the ouse; therefore, a clear duty was owed in that regard.

I Plaintiff gave evidence that the percolation test results provided ft) Gwinnett County showed an acceptable range of percolation in the ftil on this lot, which induced the county to issue a permit to install a ftptic tank; but in fact the rate of percolation was grossly unacceptable and, knowing that, the county would not have allowed a septic tank to be installed on this property. On appeal of the denial of judgments n.o.v., we view the evidence in favor of the jury’s verdict, and where there is evidence to support the verdict it cannot be said the evidence demanded a contrary verdict. OCGA § 9-11-50; see Stone v. Cook, 190 Ga. App. 11, 12 (378 SE2d 142). Appellants were not entitled to judgment n.o.v.

2. Appellants contend the trial court erred in denying them judgment n.o.v. as to the amount of damages. Appellants argue in essence that the measure of damages cannot be based on the present market value of the house as it would have been at the time of trial, but must be based on its value at the time plaintiff bought it; and that in any case plaintiff’s testimony that as the result of appellants’ negligence the house has “no value” is an improper basis to award damages.

“ ‘As a general rule the measure of damages ... for injuries to real property is the difference in value before and after the injury to the premises’ ” (Mercer v. J & M Transp. Co., 103 Ga. App. 141, 143 (118 SE2d 716)), or, “the difference . . . between what the builder built and what he should have built.” Piedmont Bldrs. v. Fullerton, 157 Ga. App. 126, 127 (276 SE2d 277); see Hortman v. Cantrell, 173 Ga. App. 429, 430 (326 SE2d 779). “The measure of damages ... is the difference in value of the house as finished and the value of the house as it should have been finished. . . . The value of the house three years after the sale was wholly immaterial to the issue to be resolved.” Williams v. Runion, 173 Ga. App. 54, 58 (325 SE2d 441).

Plaintiff was competent to give his own opinion as to value, since he laid a proper foundation for it (see OCGA § 24-9-66; see Department of Transp. v. Brown, 155 Ga. App. 622, 623 (271 SE2d 876)) but an award based on the present market value of the house is no' authorized.

The market value of this house as it should have been built waf apparently what plaintiff paid for it, $117,500. The evidence and al reasonable inferences show that a permit to install a septic tank or this property would not have been issued if correct percolation tes results had been performed, and the defective conditions caused b? appellants’ negligence cannot be repaired. In Ray v. Strawsma, 183 Ga. App. 622, 623-624 (359 SE2d 376), the defects were irremediable so that the alternative measure of damages (cost of repairs) could no be applied; we noted that even though a house is allegedly worthies J| “[i]t has some value, if only for scrap (see Hutto v. Shedd, [181 GsM App. 654, 656 (353 SE2d 596)]), and that value may obviously bl whatever it is worth as a result of the irremediable defects. The owneH should not have the benefit of that value, however low, by recovering the entire contract price. . . .” However, it is not uncommon for afl irremediable and uninhabitable dwelling to be considered to have “nH value” on the market. See Getz Exterminators of Ga. v. Towe, 19 Ga. App. 268, 269, 272 (387 SE2d 338). Although the evaluation that the house has no value may mean only that it has no market value, it is admissible as a circumstance to ascertain the value, and where there is no evidence tending to show this evaluation is unreasonable, a verdict for plaintiff is not without evidence to support it. See Dixon v. Williams, 177 Ga. App. 702, 703-704 (340 SE2d 286). Appellants had ample opportunity to show the house at least had some “scrap value,” but there is no such evidence. The evidence shows the house has no value and we are not authorized to say as a matter of law that it did.

Decided March 1, 1991

Rehearing denied March 13, 1991

William A. Wehunt, Charles A. Mullinax, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Paul R. Vancil, for appellee.

Plaintiff can recover no more than the market value at the time of purchase. The judgment below is affirmed on condition that the award in excess of $117,500 be stricken; otherwise, a new trial is granted on the issue of damages.

Judgment affirmed on condition.

Banke, P. J., and Cooper, J., concur.


author: McMurray, Presiding Judge.

text:
    A90A1778.
    BLOCK et al. v. BROWN et al.
    (404 SE2d 288)
   McMurray, Presiding Judge.

This landlord-tenant case concerns an airplane hangar at the Cartersville-Bartow County Airport. The hangar along with other airport facilities was leased by Bartow County to Watts Aviation, Inc. (“Watts”). In August of 1985 the hangar was leased on a month-to-month basis by Watts to Terry Reynolds (“Reynolds”) doing business as Multi-Air, Inc. (“Multi-Air”). Thereafter, Reynolds was contacted by plaintiff Block about renting a portion of the hangar. Reynolds md Block entered into an arrangement whereby Block rented, from Reynolds, a portion of the hangar for the use of his business, plaintiff let-Air, Inc. (“Jet-Air”).

■ Due to Reynolds’ financial difficulties, Block increased his rental Payments until they equaled the payments due from Reynolds to ftVatts. In connection with the increased rental payments, Reynolds H>n behalf of Multi-Air and Block on behalf of Jet-Air executed an Agreement which purported to assign the lease of the hangar to Jet-.ir, reserving to Multi-Air the reasonable use of the hangar so long as it did not interfere with the activities of Jet-Air. Neither Watts nor its successor in interest defendant Etowah Flight Service, Inc. (“Eto-wah”), nor any officer of either was a party to the purported assignment agreement.

Under the assignment agreement Jet-Air was to deliver the rent payment to Multi-Air (or its successor, R&H Aviation), which was to pay over the rent proceeds to Watts or its successor. After the execution of the assignment Block (and Jet-Air) continued a pattern of late payment of the rent. Thereafter, Reynolds notified Block of his intention to leave the premises and entered into a lease termination agreement on behalf of R&H Aviation with defendant Etowah, wherein the lease of the hangar by R&H Aviation (successor of Multi-Air) was terminated September 30, 1986.

Upon being told by Reynolds that he intended to vacate the premises, Block tendered a check for rent for October of 1986 to defendant Brown, president of Etowah (successor in interest of Watts). Block’s check was returned, the property of Block and Jet-Air was removed from the premises, certain modifications to the hangar which had been made for the use of Block and Jet-Air were destroyed, and the premises were occupied by a new tenant, defendant Bescorp Aviation, Inc. (“Bescorp”).

Plaintiffs Block and Jet-Air filed this action against Etowah, Eto-wah’s president Brown, Bescorp, and Bescorp’s president Earnhardt. Plaintiffs’ complaint states claims predicated on theories of trespass, interference and breach of contract, conversion, and bailment. Plaintiffs appeal from the denial of their motion for partial summary judgment, the grant of summary judgment in favor of defendants Brown and Etowah, and from the grant of these defendants’ motion to allow a counterclaim. Held:

1. The primary issue in the case sub judice is the status of plaintiffs Block and Jet-Air, that is, whether they were tenants or trespassers. “A tenant who has only a usufruct cannot convey it without the consent of the landlord. OCGA § 44-7-1 (Code Ann. § 61-101). Where an assignment is made that violates a statutory or contractual provision against assignment, ‘the transferee in such a case would be a mere intruder and subject to be summarily ousted by the landlord.’ Bass v. West, 110 Ga. 698 (5) (36 SE 244) (1900). A tenant has nc right to impose his subtenancy upon the landlord without his consent, Filsoof v. Chatham, 144 Ga. App. 464, 467 (241 SE2d 582) (1978) The provision against assignment, however, is solely for the protec-H tion or convenience of the landlord and may be waived and, when thcH landlord treats the lease as assigned, he is estopped from denying thtl validity of the assignment. Carparking v. Chappell’s, 96 Ga. App. 862 (101 SE2d 894) (1958); Saunders v. Sasser, 86 Ga. App. 499 [(1a)] (7 SE2d 709) (1952). ‘While the landlord is not bound as to facts ojfl which he does not have knowledge. (Walker v. Wadley, 124 Ga. 275, 52 S.E. 904), if he has actual knowledge of the fact of assignment, it is his duty to make inquiry, and he will be deemed to know all things to which such inquiry would lead. (Cits.)’ Carparking v. Chappell’s, supra at 865. Where the landlord treats the lease as assigned, even though the original [lessee] had no right to assign it without his consent, the landlord is estopped from claiming that the assignment is made without his consent. Saunders v. Sasser, supra; Draper & Kramer v. Lerow, 143 Ga. App. 413 (238 SE2d 560) (1977).

“If the lessee of real estate having only a usufruct sublets or assigns the lease to another, the landlord may, by affirmative acts, elect to treat the sublessee or assignee occupying the premises as his immediate tenant. Hudson v. Stewart, 110 Ga. 37, 39 (35 SE 178) (1899); McDonald v. Bell, 23 Ga. App. 562 (1) (99 SE 54) (1919). In Liberty Loan Corp. of Lakewood v. Leftwich, 118 Ga. App. 383 (163 SE2d 837) (1968), the court held that if someone other than the lessee or his recognized assignee occupies the premises and pays rent to the landlord as if he were a subtenant, the landlord may elect to treat him as a tenant occupying under the lease and bind himself and the tenant to the unexpired portion of the lease or expel him as a mere intruder. The landlord’s election may be effected by an express recognition of the subtenant or be implied from affirmative acts and conduct. The election establishes privity of contract between the subtenant and the landlord and renders the former liable to the landlord as a tenant. Leftwich v. Liberty Loan Corp. of Lakewood, 116 Ga. App. 799 (159 SE2d 142) (1967); Lawson v. Haygood, 202 Ga. 501 (1) (43 SE2d 649) (1947).

“It is necessary, therefore, to determine what acts indicate the landlord’s acceptance of the subtenant as his tenant. The landlord’s mere acceptance of rent . . . does not indicate that the landlord elected to treat the subtenant as his tenant so as to release the original tenant from liability under the lease. Hooks v. Bailey, 5 Ga. App. 211 (62 SE 1054) (1908). If, however, the landlord treats the lease as assigned, he is estopped to claim the assignment was made without his consent. Draper & Kramer v. Lerow, supra at 414. ‘ “(A) contract of substitution (of tenants) may be created . . . by a mutual course of conduct indicating consent, as well as by express words. What course [of conduct or what acts are sufficient to cause such contract to be Implied is generally for the jury.” (Cits.)’ Kaufman Bros. & Co. v. Pappas, 45 Ga. App. 479, 482 (165 SE 326) (1932).” Step Ahead v. Lehndorff Greenbriar, Ltd., 171 Ga. App. 805, 806, 807 (321 SE2d 15).

I After a thorough review of the record, we find that the uncontro-j/erted evidence shows that neither Watts nor Etowah nor their officers committed any act indicating a consent or election to accept Block or Jet-Air as a tenant. While both Watts and Etowah were aware of the presence of Block and Jet-Air on the premises, the landlords continued to receive rent only from Reynolds and his successive business entities, albeit Reynolds sometimes paid the rent by endorsing over checks written on the accounts of Block or Jet-Air. Contrary to the assertion of plaintiffs, we do not find any evidence that the president of Watts consented to Block being a co-tenant of the premises. The evidence shows that Mrs. Watts, when president of Watts, was told that a fellow wanted to rent some space in the hangar and was going to move in, but her consent to this arrangement was not elicited and there is no evidence that such consent was given.

Decided February 28, 1991

Rehearing denied March 13, 1991

Alan Z. Eisenstein, Robert M. Goldberg, for appellants.

Barnes, Browning, Tanksley & Casurella, Jerry A. Landers, Jr., Smith, Eubanks, Smith & Darden, Hansell L. Smith, for appellees.

Each theory stated in plaintiffs’ complaint is predicated on plaintiff’s alleged status as a lawful tenant of the premises rather than a trespasser. This allegation is shown by the uncontroverted evidence to be incorrect, therefore plaintiffs as trespassers were not entitled to notice to vacate provided by statute for tenants at will, nor were defendants required to initiate a dispossessory proceeding in order to remove plaintiffs from the premises. The superior court did not err in denying plaintiffs’ motion for partial summary judgment and in granting the motion for summary judgment of defendants Brown anc Etowah.

2. After April 3, 1989, claims for abusive litigation require the final termination of the proceeding in which the alleged abusive litigation occurred. The holding in Yost v. Torok, 256 Ga. 92 (344 SE2c 414), was thus amended by statute. See OCGA § 51-7-80 et seq. The superior court’s grant, after April 3, 1989, of defendants’ motion to allow a counterclaim stating a claim for abusive litigation was error.

Judgment affirmed in part and reversed in part.

Sognier, C. J., and Carley, J., concur.


text:
    A90A1859.
    HUNT v. LEE.
    (404 SE2d 446)
   Birdsong, Presiding Judge.

In June of 1989 appellee Edith Woodall Lee obtained a fi. fa. fo: $96,807 in the Superior Court of Lumpkin County for alimony am child support arrearage, effecting a levy on real property owned b: appellant Hugh S. Hunt in DeKalb County. Hunt filed an affidavit of illegality alleging that an action for an accounting he had previously filed against Mrs. Lee, which was then pending in Hall County, acted as an automatic stay; that Mrs. Lee had not made an accurate accounting of money due as required under the divorce decree between the parties; that he had the right to select bonds to fund an alimony trust; and that the land levied upon was an excessive levy as there were other undescribed properties available to her. Mrs. Lee filed a traverse and, after the proceedings in Hall County were concluded in her favor, a hearing was held in Lumpkin County. The trial court determined that Hunt had failed to raise sufficient grounds to challenge the execution and on December 5, 1989, entered an order dismissing his affidavit of illegality with prejudice and causing Hunt’s DeKalb County property again to be levied upon for the same amount. No notice of appeal was filed from that judgment, and an application for discretionary appeal was denied by this court (Appeal No. A90D0163, denied July 3, 1990).

On December 21, 1989, Hunt filed a second affidavit of illegality in Lumpkin County, advancing essentially the same grounds concerning the inaccuracy of the accounting plus a new allegation that the Hall County action had been obtained by mistaken testimony and fraud. Mrs. Lee’s motion to dismiss the second affidavit of illegality on the ground of res judicata was granted, with a finding that the second illegality was filed only for the purpose of delay. This appeal follows. Held:

So far as can be determined from the enumerations of error and the briefs of the parties, the only new allegations raised in appellant’s second affidavit of illegality deal with matters involved in the Hall County litigation, the proceedings of which are not included in the record before us. In any case, matters in that case have been concluded, for that judgment was not directly appealed or heard by discretionary appeal. Since no record of these proceedings is attached, all enumerations pertaining to those proceedings cannot be reviewed. Rowe v. Rowe, 195 Ga. App. 493 (1) (393 SE2d 750).

As to the dismissal of the second affidavit of illegality, we find no reversible error. Appellant was required by OCGA § 9-13-120 to state a cause of illegality. Under OCGA § 9-13-128, “[wjhenever an illegality is dismissed for insufficiency . . . plaintiff in execution may proceed as is provided in cases where claims are dismissed or withdrawn.” “Georgia law provides that ‘(a) judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.’ OCGA § 9-12-40.” Helmuth v. Life Ins. Co. of Ga., 194 Ga. App. 685 (391 SE2d 412). Accord Liner v. North, 194 Ga. App. 175 (1) (390 SE2d 263). See also Holbrook v. General Elec. Cap. Corp., 196 Ga. App. 382 (1) (396 SE2d 253). Thus, since no appeal was brought from the dismissal for insufficiency of the first affidavit of illegality and no viable new grounds were raised in the second, the trial court was authorized on the ground of res judicata to dismiss the second illegality pursuant to OCGA § 9-11-41 (b).

Decided February 25, 1991

Rehearing denied March 13, 1991

Hugh S. Hunt, pro se.

Harris, Phillips & Harris, R. Britt Harris, Jr., for appellee.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A1884.
    HAYES v. HAYES.
    (404 SE2d 276)
   Cooper, Judge.

This discretionary appeal arises from an order entered on appellant’s Complaint for Attachment for Contempt and Modification of Final Decree of Divorce. We granted the appeal to consider whether the trial judge abused his discretion in ordering that custody of the child remain with appellee.

The record and evidence adduced at the hearing on appellant’s complaint showed that appellant and appellee were divorced on February 7, 1989; that appellee was awarded permanent custody of the parties’ minor daughter and appellant was granted reasonable visitation with his daughter; that following the divorce, appellee’s boyfriend lived with appellee and the child for approximately two months; that appellee and her boyfriend sometimes had the child in bed with them while they were watching television; that in April 1989, while the child was visiting appellant, the child began making a “humping” motion and said “Mommy (appellee) and Dan (boyfriend) do this”; that appellant and his girl friend lived together for approximately five months and the child often visited appellant on weekends while the two were living together; that appellee has previously used illegal drugs; that around November 1, 1989, appellee moved to Ohio with the child to live with her mother and go to college; that appellant was scheduled to pick up the child for visitation on November 15, 1989; and that prior to his scheduled visitation, appellant discovered that appellee had moved to Ohio with the child. Appellant subsequently filed the complaint which is the subject of this appeal.

Decided January 31, 1991

Rehearing denied March 13, 1991

Mary A. Stearns, for appellant.

Adele P. Grubbs, for appellee.

Appellant contends in one enumeration of error with five sub-parts that the trial court abused its discretion in not changing custody from appellee to appellant and in not finding appellee to be in contempt of court. A change in custody of a minor child is authorized where there has been a change in any material conditions or circumstances of a party or the minor child. OCGA § 19-9-1 (b). “In determining whether a material change of condition has occurred, the trial court is vested with a discretion which will not be controlled by this court absent abuse. [Cit.] This court will affirm the trial court’s decision if there is any reasonable evidence to support it. [Cit.]” Gibson v. Pierce, 176 Ga. App. 287 (335 SE2d 658) (1985). There was evidence that both parties were involved in meretricious relationships in the presence of the child, but no evidence that either party committed sexual acts in the presence of the child. There was ample evidence to support the trial judge’s finding that there was no material change in condition warranting a change in custody. Therefore, subparts (a), (b), (d), and (e) of appellant’s sole enumeration of error are without merit.

We also find no error with the trial judge’s finding that appellee was not in contempt. Appellee’s move to another state necessarily involved some inconvenience to appellant’s exercise of his visitation rights with the child. However, there was no evidence that appellee wilfully interfered with his visitation or maliciously moved the child out of the state so that appellant could not see her. Accordingly, we find no merit in subpart (c) of appellant’s enumeration of error.

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


author: Pope, Judge.

text:
    A90A2046.
    ROYAL v. CURRY et al.
    (404 SE2d 302)
   Pope, Judge.

Appellant J. Kenneth Royal was named executor of the estate of ¡Evelyn C. Register pursuant to the terms of the decedent’s Last Will and Testament. Royal, a lawyer, also acted as attorney for the estate. Appellees, heirs of the decedent, filed a motion for accounting and removal of Royal as attorney and executor in the Probate Court of Wayne County, Georgia. On August 16, 1989, the probate court ordered Royal to make an accounting to the heirs of the estate and to post a bond of $100,000 pending the final accounting and settlement of the estate. On September 5, 1989, the probate court entered a new order which modified its order of August 16; removed Royal as attorney for the estate; ordered him to make a final settlement or accounting to the heirs by September 15, 1989; appointed James G. Johnson, Jr., as co-executor of the estate and authorized Johnson to employ an attorney to assist in the legal matters of the estate; ordered Royal to turn over all documents necessary for Johnson to make an accounting and settlement of the estate; and ordered Royal to post a bond in the amount of $150,000.

Royal filed his notice of appeal to the Superior Court of Wayne County on September 8, 1989. On September 27, 1989, the appellees amended their petition to include allegations that Royal, in his capacity as executor and attorney for the estate, had mismanaged the estate through waste, fraud, commingling and conversion of estate funds. Royal filed an accounting of the estate on or about November 3, 1989. Appellees filed a second amendment to their pleadings on January 11, 1990, contending Royal had committed fraud against the estate and requesting the imposition of punitive damages. A consolidated pre-trial order was entered on March 21, 1990. In the pre-trial order the appellees repeated their allegations that Royal had mismanaged the estate through fraud, waste, commingling and conversion of estate funds and again requested the imposition of punitive damages. Appellees also sought to have all sums paid by Royal returned to the estate, and costs and attorney fees assessed against him.

Royal filed a motion to strike all allegations which were not raised in the probate court prior to appeal to the superior court. Specifically, Royal contended that the only issues before the probate court, and thus the only issues properly before the superior court, were whether he should be removed as executor and attorney for the estate, whether an accounting should be made and whether a bond should be posted. Thus, Royal argued, issues of fraud, refund of fees, punitive damages and attorney fees and costs, as raised in appellees’ amended pleadings and proposed pre-trial order, should not be considered by the superior court.

The case proceeded to trial and the court, after hearing argument of the parties, held that the appellees could “go ahead with all the things that you have asked for.” However, following the presentation of Royal’s case and prior to appellees presenting their evidence, the parties entered into a consent judgment pursuant to which Royal agreed to pay appellees $80,000. On May 14, 1990, the superior court entered judgment pursuant to the parties’ agreement. On June 12, 1990, Royal filed his notice of appeal to this court.

1. Royal’s sole enumeration of error on appeal concerns the denial of his motion to strike; he does not challenge the terms, validity or enforceability of the judgment entered pursuant to the parties’ consent agreement. OCGA § 5-6-48 (b) (3) provides an appeal may be dismissed “[w]here the questions presented have become moot.” Such clearly is the situation in the case at bar. Thus Royal’s appeal must be dismissed. See Ring v. Williams, 192 Ga. App. 329 (1) (384 SE2d 914) (1989); Franklin v. Shackelford, 174 Ga. App. 520 (330 SE2d 449) (1985); cf. Rozier v. Davis/Smith Mtg. Corp., 193 Ga. App. 340 (1) (387 SE2d 627) (1989).

Decided March 1, 1991

Rehearing dismissed March 13, 1991.

Richard D. Phillips, J. Kenneth Royal, for appellant.

J. William Harvey, James G. Johnson, Jr., for appellees.

2. “[The heirs] have filed a motion for the imposition of a 10 percent penalty for frivolous appeal pursuant to OCGA § 5-6-6. We are constrained to deny the motion, however, as the statute authorizes the penalty only when the judgment is affirmed, not when the appeal is dismissed. [Cit.]” Scott v. McLaughlin, 192 Ga. App. 230 (2) (384 SE2d 212) (1989).

Appeal dismissed. Motion for penalty denied.

Beasley and Andrews, JJ., concur.


author: Beasley, Judge.

text:
    A90A2072.
    STONER et al. v. EDEN.
    (404 SE2d 283)
   Beasley, Judge.

The trial of the suit of Isabel and John Stoner against Dr. Samuel Eden for medical malpractice, individually and in his corporate capacity, ended in a verdict in favor of Dr. Eden. The Stoners enumerate as error the court’s denial of their motion for mistrial and their motion for sanctions against defendant’s counsel. Both motions were based on remarks made by counsel in closing argument relating to plaintiffs’ attorneys’ share in the proceeds of any judgment awarded to plaintiffs.

At trial the Stoners attacked the credibility of Dr. Eden by, among other things, calling a rebuttal witness who suggested that Dr. Eden would and did say whatever was necessary to protect himself. In closing argument, Dr. Eden’s counsel, Ballard, stated: “Dr. Eden is not a liar, and I resent it that Mr. Simmons with this light show and these word games would suggest that to you. That’s to inflame your passions so you will go in the jury room and render a punitive verdict in this case, and his piece will be just a little bit bigger and a little bit bigger, and the higher it goes the higher the fee. Dr. Toliver will get a piece, and Morton Sherzer, who is sitting in the back with the yellow tie, he will get a piece of that pie, too.” Simmons, the Stoners’ attorney, objected generally. Ballard responded: “He’s got a contingent interest in the case, Judge.”

The court called a bench conference, during which Simmons suggested that Ballard knew he had lost the case and was intentionally making improper statements to force a mistrial. Simmons moved orally for a mistrial, and the court reserved ruling until after the jury returned its verdict.

Following the bench conference, the court instructed the jury: “Members of the jury, I ask you to disregard the last remark made by counsel.” After deliberating for approximately 30 minutes, the jury returned a verdict in favor of Dr. Eden.

The Stoners supplemented their motion for mistrial by filing a motion for sanctions. After submission of briefs and a hearing, the court ruled: “While this court is of the opinion that Mr. Ballard’s remarks concerning the ‘piece of that pie’ that plaintiffs’ counsel would receive, and related remarks, were improper, the remarks were not so prejudicial as to warrant a mistrial or sanctions.” Accordingly, it denied both motions.

1. We are first concerned with an application of OCGA § 9-10-185.

Dr. Eden’s position is that it is not improper for defense counsel to comment on the existence of a contingent-fee contract between plaintiffs and their counsel, citing the line of decisions holding that “what has transpired in a case from its inception to its conclusion, and the conduct of the party or his counsel with respect to the case is the subject of legitimate comment.” Adkins v. Flagg, 147 Ga. 136, 137 (2a) (93 SE 92) (1917); Miller v. Coleman, 213 Ga. 125, 130 (97 SE2d 313) (1957); Walker v. Bishop, 169 Ga. App. 236, 241-242 (8) (312 SE2d 349) (1983).

The Stoners’ position is that remarks by defense counsel informing the jury that opposing counsel was representing plaintiffs on a contingent-fee basis were improper and prejudicial. They analogize the line of decisions holding that evidence that the defendant is protected by liability insurance is inadmissible, in that it is calculated to suggest to the jury that any damages would be paid by an insurance company and not the defendant. Minnick v. Jackson, 64 Ga. App. 554, 560 (13 SE2d 891) (1941), and cits.

On the other hand, Dr. Eden suggests that under the rationale of cases exemplified by Minnick, supra, informing the jury of the existence of a contingent-fee contract between plaintiffs and their counsel is actually beneficial to the plaintiffs, in that it has the tendency to inflate damages by telling the jury that not all money awarded to the plaintiffs will end up in their pockets. See Georgia Power Co. v. Redman, 137 Ga. App. 427, 428 (2) (224 SE2d 477) (1976). Coming as it did from the mouth of defendant’s counsel, however, it would not reasonably be taken as a plea to inflate an award but rather to suggest that the suit was manufactured. In the context made, the remarks would more likely prejudice the jurors against the plaintiffs, based on the same notions that underlie the proscription against champerty. See Rhoades v. El Paso & S. W. Ry. Co., 248 SW 1064 (27 ALR 1048) (Tex. Com. App. 1923); 58 AmJur2d 188, New Trial, § 139 (1989).

Defense counsel’s remarks were totally improper, an instance against which Justice Lumpkin, writing for the Court long ago, warned: “But let nothing tempt them to pervert the testimony, or surreptitiously array before the Jury, facts which, whether true or not, have not been proven.” Berry v. State, 10 Ga. 511, 523 (1851).

What made it worse here was that the remarks had no relevance to any issue of liability or damages in the case. In this state, the law does not require losing defendants to pay plaintiffs’ attorney fees, except in certain circumstances expressly provided for by statute. An example is where defendant acted in bad faith, or was stubbornly litigious, or caused unnecessary trouble and expense. OCGA § 13-6-11. Consequently, a jury may not generally consider plaintiff’s attorney fees when awarding damages. It would be improper for a jury to increase the award so as to cover these expenses, just as it would be improper to refuse a just award because an attorney would share in it. The source of payment of attorney fees is irrelevant to the issue of damages. Evidence of it would be inadmissible, and argument on it is doubly wrong. It is not a “subject of legitimate concern” within the scope contemplated in Adkins, supra.

2. “The trial judge in passing on motions for mistrial has a broad discretion, dependent on the circumstances of each case, which will not be disturbed unless manifestly abused. [Cits.] Unless it is apparent that a mistrial is essential to preservation of the right of fair trial, the discretion of the trial judge will not be interfered with.” Atlantic C. L. R. Co. v. Smith, 107 Ga. App. 384, 387 (6) (130 SE2d 355) (1963); Firestone Tire & Rubber Co. v. King, 145 Ga. App. 840, 843 (2) (244 SE2d 905) (1978); see Hudgins Contracting Co. v. Smith, 54 Ga. App. 687, 692-694 (3) (188 SE 732) (1936); compare John J. Woodside Storage Co. v. Reese, 105 Ga. App. 602, 603-604 (6) (125 SE2d 556) (1962); Moorehead v. Counts, 130 Ga. App. 453, 455-457 (1) (203 SE2d 553) (1973), aff’d Counts v. Moorehead, 232 Ga. 220 (206 SE2d 40) (1974). Banks v. Lewis, 187 Ga. App. 218 (2) (369 SE2d 537) (1988), is another case in which defense counsel’s statements prompted a motion for mistrial.

“Whether the court takes sufficient steps to remove the improper matter from the mind of the jury is frequently a question of degree to be decided under the circumstances of the case.” Howard v. Renfroe, 93 Ga. App. 59, 62 (4) (90 SE2d 598) (1955).

Decided February 26, 1991

Rehearing denied March 13, 1991

Simmons & Toliver, James C. Simmons, Jr., A. Leroy Toliver, for appellants.

Allen & Ballard, William L. Ballard, for appellee.

Under the circumstances of this case, we cannot say that the plaintiffs were deprived of a fair and impartial jury so that the trial court abused its discretion as a matter of law in denying the Stoners’ motion for mistrial, although there should have been a more explicit rebuke of counsel. See Counts, supra, 232 Ga. 220, 221. We consider the remarks in light particularly of their nature, the court’s instruction, the length of the trial, the short period of deliberation, and the verdict. The circumstances do not make it reasonably doubtful that the remarks affected or infected the verdict, that the jurors or any of them were biased or prejudiced against plaintiffs on this account.

Moreover, since the verdict favored defendant on the question of liability, issues as to the amount of damages, addressed by the improper remarks, were not reached by the jury thus no harm resulted. Williams v. Ricks, 152 Ga. App. 555, 559 (3) (263 SE2d 457) (1979).

3. Citing OCGA §§ 15-1-3 and 15-1-4, and Urban Medical Hosp. v. Seay, 179 Ga. App. 874 (348 SE2d 315) (1986), by way of comparison, appellants contend that the trial court erred in denying their motion for litigation expenses and attorney fees as sanctions for defense counsel’s knowingly and intentionally making improper remarks to the jury in this case.

The imposition of sanctions in accordance with the foregoing statutory provisions requires the exercise of discretion. See Jackson v. State, 225 Ga. 553 (170 SE2d 281) (1969); Reid v. McRae, 190 Ga. 323 (9 SE2d 176) (1940). The denial of the sanctions requested did not constitute abuse.

Judgment affirmed.

Pope and Andrews, JJ., concur.


text:
    A90A2100.
    DUPREE et al. v. KELLER INDUSTRIES, INC.
    (404 SE2d 291)
   Beasley, Judge.

Our consideration of this appeal focuses on the duty element of the tort of negligence.

Plaintiffs Dupree and Landry appeal summary judgment, which was granted in an explanatory order, and entry of final judgment in favor of defendant Keller Industries, Inc. This action was brought by plaintiffs to recover for hand injuries they sustained in separate incidents while at work operating a hydraulic punch press. The press was once owned and then sold by Keller to plaintiffs’ employer, Dixie Aluminum Products Company, Inc.

There were five defendants in addition to Keller: E. W. Bliss Co., Inc., manufacturer of the press, and Harding Erectors, Inc., Parker Industrial Maintenance, Inc., Lektrol, Inc., d/b/a Lektrol Automation Services, and Southside Industrial Maintenance, Inc., companies which had inspected and serviced the machine after Dixie bought it. Bliss was voluntarily dismissed without prejudice. The remaining defendants were dismissed with prejudice following settlement.

The primary theory of negligence was that Keller was under a duty to conform to industry standards and to regulations of the United States Occupational Safety & Health Administration (OSHA) with respect to the press, that Keller breached the duty by failing to incorporate into the press certain safeguards, namely “control reliability” and “brake monitoring circuitry,” and that the failure to add the safeguards was the proximate cause of their injuries. An alternative theory was that Keller was liable because it failed to advise Dixie of the dangerous condition.

The trial court rejected plaintiffs’ contention that the press was inherently dangerous, found persuasive Keller’s argument that any duty imposed on it by industry and OSHA standards was assumed by Dixie at purchase of the press, and concluded that Keller was not responsible for the effects of extensive modifications to the press after it left Keller’s control. The court also concluded that as to Keller there was a plain and palpable lack of proximate cause.

The two injured press operators claim that the trial court improperly weighed the evidence and decided issues of fact, such as whether or not the press as sold by Keller was unsafe because it lacked certain safeguards, whether or not Keller’s selling the machine without the safeguards constituted negligence since Keller knew buyer Dixie would not make the machine safe for use, and whether or not Keller’s negligence was the proximate cause of the injuries sustained.

The following was undisputed: Bliss manufactured and sold the press in 1953 to a division of General Motors. Keller purchased it about 1974 for use in manufacturing aluminum parts for storm doors. No injuries are known to have occurred while Keller used the punch press in its manufacturing operation.

Keller decided to discontinue manufacture of a component part for its storm doors. Dixie was doing different component parts for the same product line and wished to expand its business to manufacture those parts needed by Keller. In February 1985, Keller sold the production line which included the press to Dixie. The two companies entered into an “Equipment Sale and Manufacturing Agreement” whereby Dixie agreed to purchase Keller’s equipment including the press and to enter into a contract to supply Keller’s door component requirements. The equipment was sold expressly “as is, where is.”

At Dixie, the press functioned with a two-palm button operation. The operator would place with his hands a sheet of aluminum between the dies and then press the two palm buttons simultaneously. This would cause the press to cycle and stamp the metal. During the cycle, the ram holding the upper die came down rapidly and with great force. After the cycle, the operator would reach between the dies and remove the finished product. At Keller, two men had operated the machine. One fed the raw material in from one side and the other removed the product after it was stamped. Each man used two buttons.

Dixie hired Harding to move, erect, and place the machine in operation at Dixie. Harding’s work included unloading the press, placing and anchoring it in the building, and running an electrical conduit to it. Getting the press operational was a problem so Dixie also hired Lektrol to assist. At the least, Lektrol disconnected one of the two sets of two-palm button operative controls, rewired portions of the press control panel to the press, reconnected or replaced wire in the control panel which had been severed in relocating the press to Dixie, adjusted the cam switches, prepared a rough wiring diagram, and replaced a pressure relief switch.

Dixie operated the press from the first half of 1985 until June 1986, when it hired Parker to repair a drive shaft and flywheel on the press. Parker subcontracted with Southside for repairs, including dis-assembly and reassembly of various portions of the press.

Dixie hired Dupree in early 1986 and assigned him to operate the press. Dupree had never worked for Keller. Dixie employees taught him how to operate the press, including how to put in and align metal and how to put his hands under the rams of the press. On July 22, 1986, Dupree’s hands were severely injured when the press’ upper operating ram failed to stop at completion of a cycle and dropped down, pinning his hands. Prior to his injury, Dupree was aware that the press had had slippage incidents, including one where it went into a closed or “die-down” position without operator intervention. Dupree told his supervisors at Dixie about the “die-down” incident. He also witnessed an additional such incident prior to his injury.

Following Dupree’s injury, Dixie hired Parker again to determine the cause of the problem and make any necessary repair. Parker inspected and worked on the press, including its mechanical brake.

Dixie employee Landry, who likewise had never worked for Keller, was assigned to operate the press after Parker’s work. He, too, was taught by Dixie employees. Landry knew that Dupree had been injured on the press by having his hands caught between the dies. Landry operated the machine such that his hands were also placed inside. Approximately two weeks after Dupree’s injury, on August 7, the press again malfunctioned in the same manner and pinned Landry’s right hand. Prior to his injury, Landry had witnessed at least ten instances of die or ram slippage during his operation of the press.

1. A cause of action for negligence requires “ ‘(1) [a] legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.’ Lee Street Auto Sales v. Warren, 102 Ga. App. 345 (1) (116 SE2d 243) (1960).” Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). See also Prosser, Law of Torts, 4th ed., § 30 (1971), quoted in Sutter v. Hutchings, 254 Ga. 194, 196 (1) (327 SE2d 716) (1985).

Plaintiffs attempt to establish the first element of their claim, a duty owed by Keller, by citing certain regulations published by the United States Occupational Safety & Health Administration (OSHA), plus similar industry standards for mechanical power presses set forth by the American Natural Standard Institute (ANSI). They rely additionally on the affidavit and deposition testimony of their expert rendering his opinion of the duty imposed by the regulations and standards.

OSHA regulations are “admissible not merely as ‘standards’ of performance, but as evidence of legal duty, violation of which may give a cause of action under OCGA § 51-1-6.” Cardin v. Telfair Acres &c., 195 Ga. App. 449, 450 (2) (393 SE2d 731) (1990). But applicability in a particular case, and relevancy, depend on the relationship of the parties.

OCGA § 51-1-6 provides for recovery of damages upon breach of a legal duty and specifies that the requirement under the law to perform or refrain from doing an act must be for the benefit of the injured person. “One of the problems arising out of the question of duty is the parties’ status and their relation to each other.” Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 512 (317 SE2d 853) (1984). Does the defendant owe the duty to this plaintiff? If a defendant owes no legal duty to the plaintiff, there is no cause of action in negligence. Washington v. Combustion Engineering, 159 Ga. App. 555, 557 (284 SE2d 61) (1981). “ ‘(W)hat duty a defendant owed a plaintiff is . . . a policy problem a matter of law.’ [Cit.]” Honda Motor Co., Ltd. v. Kimbrel, 189 Ga. App. 414, 417 (2) (376 SE2d 379) (1988).

The clear language of both the cited ANSI standards and OSHA regulations place the obligation to use the subject safeguards, i.e., control system and brake monitor, upon the employer. See ANSI § 5.5 and 29 CFR § 1910.217 (c) (5). OSHA regulates obligations between an employer and its employees. See 29 USC § 651 et seq.; Barrera v. E. I. Du Pont De Nemours & Co., 653 F2d 915 (5th Cir. 1981); Horn v. C. L. Osborn Contracting Co., 591 F2d 318 (5th Cir. 1979). Such is contemplated, as OSHA is not to “be construed to supersede or in any manner affect any workmen’s compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.” 29 USC § 653 (b) (4).

Since plaintiffs were not Keller’s employees and thus were not persons who were intended to be benefitted by OSHA, any violation by it of the OSHA regulations would not be negligence per se in this case, as a matter of law. OCGA § 51-1-6. See Sims v. Hoff, 106 Ga. App. 626, 628 (1) (a) (127 SE2d 679) (1962); Cardin, supra at 450 (2); Atlanta & West Point R. Co. v. Underwood, 218 Ga. 193 (1) (126 SE2d 785) (1962).

Plaintiffs also contend that non-conformity with the OSHA regulations and ANSI standards were evidence of Keller’s common-law duty to them. They rely on the opinion of their expert that Keller was obligated by the standards in the industry and regulations to have added the safeguards and that it failed to comply. It is true that ANSI standards, as privately established guidelines, are admissible as illustrative of negligence. See Luckie v. Piggly-Wiggly &c., 173 Ga. App. 177, 178 (1) (325 SE2d 844) (1984). As to the admissibility of the OSHA regulations in this regard, see Gilbert v. CSX Transp., 197 Ga. App. 29, 30 (1) (397 SE2d 447) (1990). However, neither the ANSI standards nor the OSHA regulations themselves raise a common-law duty to remote users. It must exist elsewhere, and for that inquiry we turn to Division 2 which explores the other aspect of plaintiffs’ theory.

2. Appellants assert that a common-law duty flowed from Keller based upon the adoption of §§ 388 and 389 of the Restatement of the Law of Torts, Second, in Moody v. Martin Motor Co., 76 Ga. App. 456 (46 SE2d 197) (1948).

Appellants cite, as the foundation of a duty owed by Keller to them, language in Bradley, supra, that the legal duty in that case arose “out of the general duty one owes to all the world not to subject them to an unreasonable risk of harm.” However, the Supreme Court clarified this statement by explaining: “This has been expressed as follows: ‘. . . negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.’ Restatement, Torts, 2d, § 282.” Id. at 201. Appellants cannot point to any standard established by law with regard to them, which Keller violated. Cf. Bradley, supra, where the Wessners did show such, with regard to a duty owed to the victim, their mother.

Appellants’ reliance on Moody for the proposition that Keller was liable as supplier of a dangerous chattel is misplaced. That case involved injury from an independent contractor’s alleged failure to repair a vehicle. The opinion quotes with approval the cited sections from the Restatement, Second, quoting § 388, which deals with failure to warn of dangerous chattel: “ ‘One who supplies directly or through a third person a chattel for another to use, is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows, or from facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied; (b) and has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition; and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be so. . . .’” Moody, supra at 459.

It also invokes Section 389, which was likewise adopted in Moody. “ ‘One who supplies directly or through a third person a chattel for another’s use knowing that the chattel is unlikely to be made reasonably safe before being put to a use which the supplier should expect it to be put, is subject to liability for bodily harm caused by such use to those whom the supplier should expect to use the chattel or to be in the vicinity of its probable use and who are ignorant of the dangerous character of the chattel or whose knowledge thereof does not make them contributorily negligent, although the supplier has informed the other for whose use the chattel is supplied of its dangerous character.’ ” Moody, supra at 461. The undisputed evidence was that there were no injuries to those operating the press during Keller’s ownership and use. Even if the industry and federal regulations evidenced an inherent danger and Keller knew or should have realized that the press was or was likely to be dangerous for the use for which it was supplied, there was a complete absence of evidence that Keller had reason to believe that Dixie or its employees would not realize the lack of the safeguard devices. In fact, the evidence of others’ inspection and work on the press after delivery to Dixie, along with the slippage incidents prior to plaintiffs’ injuries, point to the opposite conclusion, that Dixie and plaintiffs would have known or should have known of the lack of the safety devices on the press.

Decided February 28, 1991

Rehearing denied March 13, 1991

Hodges, Erwin, Hedrick & Kraselsky, William A. Erwin, William H. Hedrick, for appellants.

Lokey & Bowden, Samuel P. Pierce, Jr., for appellee.

Plaintiffs’ failure to show any legal duty imposed on Keller towards them is fatal to their claim of negligence. Judgment in favor of Keller was required as a matter of law.

3. The foregoing makes it unnecessary to address the remaining issues of intervening modifiers and proximate cause.

Judgment affirmed.

Pope and Andrews, JJ., concur.

       For other Georgia cases discussing section 388, see Hawkins v. Richardson-Merrell, 147 Ga. App. 481, 483 (1) (249 SE2d 286) (1978); Greenway v. Peabody Intl. Corp., 163 Ga. App. 698, 702 (2) (294 SE2d 541) (1982).


author: Pope, Judge. Beasley, Judge,

text:
    A90A1601.
    JOHNSON v. THE STATE.
    (404 SE2d 455)
   Pope, Judge.

Appellant Ernest Johnson was convicted of armed robbery. The evidence showed that Johnson used a sawed-off shotgun to force his way into a house in which several men were playing poker. At gunpoint, Johnson took money and watches from each of the men and also took the money on the poker table. Johnson backed out the door, telling the men not to stick their heads out, that he had a partner outside and if they did stick their heads out, Johnson would bust them.

1. Johnson argues the trial court erred in admitting evidence of a similar offense. Johnson admits he committed the previous offense and that he served ten years after his conviction. In the earlier robbery, Johnson and an accomplice (who actually wielded the gun) took money and watches and jewelry from several people working in a store. Even though the times of the robberies were different (the earlier one occurred in mid-day and the robbery in this case occurred at approximately 2:00 a.m.), and the weapon used was different (a pistol was used in the previous robbery, a shotgun in the present case), nonetheless we hold that the crimes were sufficiently similar in method to show bent of mind and scheme. In each case, Johnson preyed upon a group of people gathered in one spot and took money and jewelry from each of the victims. See Aaron v. State, 195 Ga. App. 339 (1) (393 SE2d 698) (1990). Nor is the lapse of time between the previous crime and this one dispositive. As noted by the State, Johnson was in prison for most of the time between the two crimes. Lapse of time is merely a factor to be considered in balancing the probative value of admitting the similar offense against its potentially prejudicial effect. Campbell v. State, 234 Ga. 130 (214 SE2d 656) (1975) (lapse of seven years held not to bar admission of similar offense); see also Rich v. State, 254 Ga. 11, 14 (1) (325 SE2d 761) (1985) (lapse of 11 years held not a bar to admission of similar offense). Admission of the similar offense was not error.

2. Although evidence of flight was slight, there was evidence to support it. The Supreme Court in Renner v. State, 260 Ga. 515 (3b) (397 SE2d 683) (1990), held that after publication of its opinion in that case in the advance sheets (January 10, 1991), trial courts could no longer charge on flight. Of course, trial in the present case long preceded the effective date of the holding in Renner.

Judgment affirmed.

Andrews, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur but am troubled by the admission of evidence of the similar offense, which is ruled on in Division 1.

The State argues that the evidence of the earlier armed robbery was admissible to prove “intent and motive.” At trial the State desired its admission to show “motive and bent of mind.” The court charged that such evidence can be considered “where knowledge, common design, modus operandi, motive, intent, good or bad faith, bent of mind, plan, scheme, and course of conduct, identity or other matters dependent upon a person’s state of mind are involved as material elements in the offense for which he is on trial. . . .” In explaining this, the court emphasized that it was to be considered “solely and only with reference to the mental state, identity, or intent of the Defendant. ...”

Evidence of similar acts demonstrating bad character are inherently prejudicial to the defendant and is for that reason generally inadmissible. OCGA § 24-9-20. The law deems such evidence of a person’s conduct on another occasion to be irrelevant to the issues on trial, “unless the nature of the [case] involves such character and renders necessary or proper the investigation of such conduct.” OCGA § 24-2-2. That is to say, “ ‘[w]hen one is on trial charged with the commission of a crime, proof of a distinct, independent, and separate offense is never admissible, unless there is some logical connection between the two, from which it can be said that proof of the one tends to establish the other.’ ” Bacon v. State, 209 Ga. 261, 263 (71 SE2d 615) (1952). In Campbell v. State, 234 Ga. 130, 131 (214 SE2d 656) (1975), the Court firmly cautioned: “Regardless of the similarity of the two crimes, evidence of the separate offense should never be ladmitted unless ‘the prejudice it creates is outweighed by its relevancy to the issues on trial.’ [Cit.]”

Decided March 13, 1991.

Gary C. McCorvey, for appellant.

John C. Pridgen, District Attorney, Kathryn 0. Fallin, Assistant District Attorney, for appellee.

The primary issue in this case was identity. Whether the person who committed the robbery “intended” to do so or “intended” to do it by means of a weapon, was not contested. That is, for example, there was no contention that the act was a mistake or accident, both of which are aspects of intent. Rich v. State, 254 Ga. 11, 13 (1) (325 SE2d 761) (1985). Whether he had a “motive” for doing so was also not much in dispute, if at all. Even if these two factors needed ex-trinisic proof, it is difficult to construct a “logical connection” between the two crimes through them. Although it could be argued that a robber would have a motive for committing another robbery if he was just released from prison after ten years and had no money, that was not the purpose of the State’s offer of this evidence. The State should be required to articulate the purpose for which such damaging and generally inadmissible evidence is offered, so that the court can judge whether it is relevant to an issue in the particular case, that is, whether there is a logical connection, before the evidence is admitted. See Devane v. State, 183 Ga. App. 60, 63 (2b) (357 SE2d 819) (1987); Hill v. State, 183 Ga. App. 404 (359 SE2d 190) (1987); State v. Johnson, 246 Ga. 654 (1) (272 SE2d 321) (1980).

Nevertheless, appellant does not stand on a lack of logical connection but rather urges that the two offenses are not similar. They are, and for that reason, I concur.