author: Deen, Presiding Judge. Birdsong, Chief Judge,

text:
    74398.
    SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY v. ALTMAN.
    (359 SE2d 385)
   Deen, Presiding Judge.

On October 25, 1983, Southern Bell Telephone and Telegraph Company (Southern Bell) sponsored an awards banquet at a restaurant, which was attended by Ross Altman, a Southern Bell employee. Alcoholic beverages were served to the Southern Bell employees as part of the meal, and following dinner, more alcoholic beverages were available to the Southern Bell attendees, although at their own expense. Altman, a reformed alcoholic until this night, voluntarily consumed alcoholic beverages during and after the banquet.

At the request of a Southern Bell manager, several of Altman’s co-workers kept him at the restaurant for approximately one hour to an hour and a half after dinner, and got him to drifik some coffee. Three co-workers then persuaded Altman to allow them to drive him home. One co-worker drove Altman’s truck, followed by the two other co-workers in another vehicle.

After delivering Altman to his home and parking his truck (facing the house), the co-workers started to leave; however, they stopped their car in Altman’s driveway when they saw him get into his truck. One co-worker got out of the car and asked Altman what he was doing, and Altman explained that he was only backing his truck into the garage. The three co-workers then waited to see Altman back the truck into the garage, exit the truck, and walk towards the front door of the house. Because it appeared that someone was in the house and that Altman was going into his home, the three co-workers finally left.

However, Altman subsequently got back into his truck and drove away. Later that night he was killed when his truck collided with another vehicle driven by David Satterfield. Altman’s widow (individually, as administratrix of Altman’s estate, and as next friend of their children) and Satterfield and his wife then commenced this action against Southern Bell. Southern Bell moved for summary judgment, which was denied by the trial court, and this interlocutory appeal followed. Held:

1. With regard to the claim asserted by Altman’s widow, this matter is controlled by Sutter v. Hutchings, 254 Ga. 194 (327 SE2d 716) (1985), wherein the Supreme Court made it clear that the provider of alcoholic beverages is not liable for injuries suffered by the consumer of such beverages. The appellees’ argument that Altman’s known past alcoholism removes this case from the dictates of Sutter is unpersuasive.

2. Under Sutter, one who provides alcoholic beverages to a noticeably intoxicated person, knowing that the person will soon be driving a vehicle, may be liable for a third party’s injuries caused by the negligence of the intoxicated driver. The provider has a duty not to subject third parties to an unreasonable risk of harm caused by the intoxicated driver. Under the undisputed facts of this case, as a matter of law Southern Bell satisfied its duty to third parties. To hold otherwise would practically impose a duty upon Southern Bell not only of getting Altman safely home, but also of tucking him in bed, locking his bedroom door, and securing the keys to his truck, or of setting up an all-night vigil in swing shifts to make sure he didn’t leave. “This would be nonsense. People would laugh at the law if it required any such thing.” Fletcher Guano Co. v. Vorus, 10 Ga. App. 380, 382 (73 SE 348) (1911). Accordingly, the trial court should also have granted summary judgment for Southern Bell on the claim asserted by the Satterfields.

Judgment reversed.

Banke, P. J., Carley, Sognier, and Benham, JJ., concur. Birdsong, C. J., McMurray, P. J., Pope and Beasley, JJ., dissent.

Birdsong, Chief Judge,

dissenting.

I respectfully dissent from the majority opinion on two bases: (1) I cannot concur in the holding that Sutter v. Hutchings, 254 Ga. 194 (327 SE2d 716), is controlling, because of the distinguishing facts, and (2) I find a conflict in the evidence as to a material fact, which requires denial of the motion for summary judgment.

1. I find Sutter applicable but not controlling, as the present action is distinguishable upon its facts. Sutter involved a social host in a private home, serving alcohol to an obviously intoxicated minor. The instant appeal concerns a business host, requiring attendance of its employees at a business banquet, at which it serves alcoholic beverages to a known alcoholic employee, and after observing the effect of the employee’s consumption of alcohol, the effectiveness of efforts to discharge its duty of care to the obviously intoxicated employee.

I have found no Georgia precedent involving the duties of an employer who requires its employees to attend a business function, i.e., awards banquet, and provides alcohol to a known alcoholic employee. Other states have distinguished between the duties of (a) a social host who serves alcohol to social guests in a private home, (b) a commercial establishment that sells alcoholic beverages, and (c) a business that hosts a social function, or a business function, and those providers of alcohol sell or give the alcohol to (1) an adult, (2) a minor, (3) an obviously intoxicated adult or minor, (4) a known alcoholic or (5) an obviously mentally retarded individual. See generally 48A CJS 133 et seq., Intoxicating Liquors; 45 AmJur2d 852 et seq., Intoxicating Liquors; Annots. 8 ALR3d 1412; 98 ALR3d 1230. The majority finds no distinction between a social host serving alcohol in a private home and a business host providing alcohol in a commercial establishment, and no difference in the status of the consumer of the alcohol — social guest, business guest, minor, or an alcoholic. I discern a distinction.

Although Sutter involved a social host in a private home providing alcohol to an intoxicated minor, the Supreme Court applied a statute (OCGA § 3-3-23) which was enacted by the Legislature to apply to commercial purveyors of alcoholic beverages, i.e., “[t]he businesses of manufacturing, distributing, selling, handling, and otherwise dealing in or possessing alcoholic beverages. . . .” OCGA § 3-3-1. Other states have refused to apply statutory obligations enacted for commercial establishments to social hosts and businesses. Camille v. Berry Fertilizers, 334 NE2d 205 (Ill. 1975); Miller v. Owens-Ill. Glass Co., 199 NE2d 300 (48 Ill.App.2d 412); Edgar v. Kajet, 389 NYS2d 631 (NY 1976); Manning v. Andy, 454 Pa. 237 (310 A2d 75); DeLoach v. Mayer Elec. Supply, 378 S2d 733 (Ala. 1979); Chastain v. Litton Systems, 694 F2d 957 (4th Cir. 1982); U. S. cert. den. 103 SC 2454; Behnke v. Pierson, 175 NW2d 303 (Mich. 1970), see also Annot. 8 ALR3d 1413, § 2 (a). Hence, there is substantial foreign authority regarding the lack of applicability of commercial liquor statutes to private business, and we should not assume that because the Supreme Court applied a commercial statute to a social host serving alcohol to an intoxicated minor, they would reach the same result to a business serving alcohol to a known alcoholic at a business function. In this connection, we should note that the precursor statute to OCGA § 3-3-23 was Code Ann. § 58-1061, and it forbid supplying liquors to “minors, intoxicated persons and habitual drunkards. . . .” See Keaton v. Kroger Co., 143 Ga. App. 23, 24 (237 SE2d 443). The current statutes, OCGA §§ 3-3-22; 3-3-23, have eliminated the proscription referring to a “habitual drunkard.” The legislature must have intended to distinguish that category by removing that term from the statutes involving “minors” and “intoxicated persons.” Courts have held that attendance of an employee at his employer’s business function, in response to the employer’s request, at which function the employee became intoxicated, the employee’s intoxication was incurred “within the scope of his employment.” Harris v. Trojan Fireworks, 120 Cal.App.3d 157 (174 Cal. Rptr. 452, 456-457 (1981); see also Boynton v. McKales, 294 P2d 733 (Cal. 1956).

Michigan has addressed the issue of liability of a tavern owner who provided alcohol to a known alcoholic, who fell from a bridge and killed himself. The court found the tavern owner liable. Grasser v. Fleming, 253 NW2d 757 (Mich. App. 1977). In an earlier case, Hollerud v. Malamis, 174 NW2d 626 (Mich. App. 1969), tort liability was imposed upon a liquor licensee who knowingly served alcohol to one known to be addicted to alcohol. In Ohio, the court found a common law cause of action existed against a tavern owner who served alcoholic beverages to a patron who habitually drank to excess, thereby causing his death. Mason v. Roberts, 294 NE2d 884 (33 Ohio St.2d 29). A California court held that a bar owner who served alcohol to “a habitual drunkard or an alcoholic [who] had lost the will power to resist the temptation when liquor was offered to him” stated a cause of action against a tavern owner when the alcoholic became so intoxicated he strangled himself upon his own vomit. Carlisle v. Kanaywer, 101 Cal. Rptr. 246 (24 Cal.App.3d 587). See also Anno. 98 ALR3d 1247, § 7 (a). Accordingly, although portions of Sutter, supra, are applicable, I do not find it controlling because of a totally different factual situation in the instant action.

2. There is a conflict in the evidence as to a material fact. At the banquet Altman was sitting at the same table as the District Manager, Phil McClendon. Mixed drinks were served to all who requested them during the banquet. William Amos, an employee of the defendant, stated that after the banquet was over, McClendon “had charged the group to please see that anyone that needed help to get home, got home safely. ... I took it that he meant Mr. Altman. The reason being, Mr. Altman was the only one that appeared to be intoxicated. . . . Because Mr. Altman was sitting directly around the table from Mr. McClendon. Mr. McClendon had a view of what was going on. Mr. McClendon is a very observant man, and I’m sure he saw the situation.” Altman was driven home by three Southern Bell employees (Amos, Hance, and Tucker), carrying out the instructions of their employer. Hance said he drove Altman’s pickup truck home, and parked it “facing . . . the garage.” They got out of the truck and talked “for five or ten minutes.” Then the employee got in the car with the other employees and left. After they had driven down the street, “[w]e realized we had made an incorrect turn leaving the house. We drove down the street a short way, turned around, and drove back toward Altman’s house ... we saw Altman in his truck. We decided to stop and be sure [he] was not leaving. ... We pulled into the driveway or across the end of the driveway and stayed there three to five minutes. ... I saw Altman back the truck into the garage. Afterwards, the light went out. The garage was dark when [we] drove away.”

Amos said he followed Altman’s truck to his house. Hance parked the truck, went around the truck and gave the keys to Altman. Hance and Altman came to his car and Altman shook his hand. Hance got in his car and they started to leave. As they were leaving, they saw Altman get back into his truck and they stopped. Hance got out of the car and went back to Altman’s truck. “Altman backed his truck about halfway into the garage and then got out and walked toward the house.” After they left, he did not drive back past Altman’s home.

Mrs. Altman stated that she was home the evening of the awards dinner. She heard her husband’s truck come into their driveway and saw a car parked in the driveway. “Within a few minutes my husband’s pickup truck left. During all that time I never heard the truck’s diesel engine turned off.” According to two of defendant’s employees, the truck’s engine was turned off twice and they remained there “five or ten minutes” the first time they stopped and “three to five minutes” the second time they stopped. One employee says they stopped once and one employee says they stopped twice. The third employee’s testimony was not presented.

The credibility of the two employees is in issue. Their testimony did not agree with each other and Mrs. Altman’s testimony differed from both of them. The three employees were attempting to carry out the instructions of their supervisor, after the district manager had observed the result of providing alcohol to a known alcoholic employee. Mrs. Altman stated that her husband did not want to attend, but “felt that he had to go because of the insistence of his superiors.” Amos testified that “[i]t was a business etiquette that we attend it, as far as I was concerned.” Hence, the employer attempted to remedy a situation wherein its conduct had caused the intoxication of a known alcoholic employee by directing its employees to see the intoxicated employee “safely home.” The affidavits of two of those employees, after learning of Altman’s death, do not agree as to the extent of their efforts to see the intoxicated employee “safely home” as per directions of their supervisor.

I cannot agree with the majority’s conclusion that “[u]nder the undisputed facts of this case, as a matter of law Southern Bell satisfied its duty to third parties.” From the facts quoted above, we have three different versions of what actually occurred at Altman’s home and this places in issue the credibility of those witnesses. A jury alone can judge credibility of witnesses. Ginn v. Morgan, 225 Ga. 192 (1) (167 SE2d 393); Blue v. R. L. Glosson Contracting, 173 Ga. App. 622, 624 (327 SE2d 582). Where credibility of the witnesses is in issue, it is error to grant summary judgment. Smith v. Sandersville Prod. Credit Assn., 229 Ga. 65, 67 (189 SE2d 432); Columbia Drug Co. v. Cook, 127 Ga. App. 490, 492 (194 SE2d 286). At the heart of the summary judgment procedure is the axiom that there must be no substantial issue as to any material fact, and this lack of conflict permits the trial court to apply applicable standards of law which define the legal rights and obligations of the parties, without resort to trial on the conclusively established, indisputable facts. I cannot concur with the majority’s conclusion that the facts are “undisputed” as to the extent of the employees’ efforts to discharge the responsibility of their employer, when the majority accepts as “fact” one of three versions of the extent of those employees’ corrective actions.

Further, at issue is the alleged negligence of the employer in providing alcohol to the known alcoholic employee and whether it discharged its duty after discovery of the intoxication of that employee, knowing that such intoxicated alcoholic employee would be driving home. Amos testified to the fact that Mr. McClendon observed the intoxication of Altman at his table prior to the termination of the meeting. The majority finds Sutter applicable to this appeal. Sutter held: “ ‘We think it evident that the service of alcoholic beverages to an obviously intoxicated person by one who knows that such intoxicated person intends to drive a motor vehicle creates a reasonably foreseeable risk of injury to those on the highway.’ ” (Emphasis deleted.) 254 Ga. at 196. Here, the known alcoholic was visibly intoxicated at the awards banquet — sufficiently intoxicated to invoke the directions of the district manager that company employees see that person “safely home.” This factual predicate raises two issues of law, the extent of negligence of the employer in providing alcohol to a known alcoholic, at a business function, and the discharge of its duty of care after discovery of the effect of its alleged negligence. The majority opinion holds, “as a matter of law Southern Bell satisfied its duty to third parties.” In other words, the majority has settled not only issues of fact and credibility, but questions of negligence, due care, foreseeability, and satisfaction of the reasonable man standard “as a matter of law” on a motion for summary judgment at the appellate level. “The only human resolution of such conflicts can, under our jurisprudence, be made by a jury who alone can impeach, who alone can judge credibility, and who alone can decide issues of fact.” McCurry v. Bailey, 224 Ga. 318, 320 (162 SE2d 9). “In resolving this question, we must start with the accepted standard of law that issues of negligence and diligence, including related issues of lack of ordinary care for one’s safety or lack of ordinary care in failing to foresee or observe the negligence of another, are ordinarily not susceptible of summary adjudication (cit.) and unless only one conclusion is permissible (cits.), the issue should be resolved by the jury” (Hester v. Baker, 180 Ga. App. 627, 630 (349 SE2d 834)), “and even where there is no dispute as to the facts, it is usually for the jury to say whether the conduct in question met the standard of the reasonable man.” Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832, 836 (331 SE2d 899); accord Ellington v. Tolar Constr. Co., 237 Ga. 235, 237 (227 SE2d 336); James v. Sears, Roebuck & Co., 140 Ga. App. 859 (232 SE2d 274). Thus, even if it could be determined from the conflict in the evidence as to what the conduct was of the three men who drove Altman home, whether that conduct met the reasonable man standard is for the jury. Even assuming there was no initial duty to provide care for the intoxicated employee, the employer having undertaken to provide such care was required to perform it in a non-negligent manner. Atlanta Center v. Cox, 178 Ga. App. 184, 185 (341 SE2d 15); accord Cunningham, supra at 834-839; Mixon v. Dobbs Houses, 149 Ga. App. 481, 483 (254 SE2d 864); Restatement, Torts 2d §§ 324, 324A; Prosser, Law of Torts (4th ed.) 343, § 56. “Where the evidence is susceptible of more than one inference, it is the jury rather than the trial judge who should make the determination.” Georgia Power Co. v. Knighton, 169 Ga. App. 416, 417 (312 SE2d 872).

3. This is a first impression issue, i.e., the obligation of a business, at a business function, to a known alcoholic employee, in providing him with intoxicants to the extent that he becomes intoxicated to a degree that he is apparently incapable of properly caring for himself, and if there is an obligation or duty imposed on the employer, is that duty discharged by driving the man home and leaving him in possession of his keys and his car outside of his house? The majority finds these issues so well-settled, that even in view of conflicts of fact in the statements of two people who drove the intoxicated employee home, and a conflict between those versions and a third witness, that all issues can be properly determined by an appellate court on summary judgment, after refusal of the trial court to grant summary judgment. The resolution of the conflicts in the evidence, the credibility of the witnesses, the issues of negligence, foreseeability, discharge of a duty of care, and determination of whether the employer’s employees’ conduct met the reasonable man standard, are questions for resolution by a jury.

Decided June 19, 1987

Rehearings denied July 10, 1987

R. Phillip Shinall III, Harris R. Anthony, for appellant.

Ronald C. Harrison, Robert E. Richardson, Patrick J. Gibbs, for appellee.

I, therefore, respectfully dissent from the majority opinion. I am authorized to state that Presiding Judge McMurray, Judge Pope and Judge Beasley join in this dissent.


source: Caselaw Access Project

author: Pope, Judge. Deen, Presiding Judge,

license: Public Domain

text:
    73627.
    GINN v. RENALDO, INC.
    (359 SE2d 390)
   Pope, Judge.

Plaintiff Ginn brought this action against defendant Renaldo, Inc. d/b/a Baker Street to recover damages for injuries received at defendant’s nightclub. This appeal arises from a directed verdict in favor of defendant at the close of plaintiffs case.

The facts of record, construed most strongly in favor of plaintiff, showed that on the evening in question plaintiff became “silly drunk” at defendant’s nightclub and was asked by several patrons and the manager to leave the premises. He initially declined, but upon arrival of the police he voluntarily left the premises, escorted by the manager and an unidentified male patron. While talking with the police in the nightclub’s parking lot, plaintiff realized that he had left his jacket inside. Upon his attempt to reenter the premises and retrieve the jacket, he was met at the door by the manager and an unidentified male patron. (Plaintiff was unable to recall if this patron was the same one who had earlier escorted him out.) He repeatedly attempted to persuade the manager to admit him so that he could retrieve his jacket, but she steadfastly refused. Suddenly and without warning, the patron pushed plaintiff, who lost his balance and fell backward. Plaintiff testified, “[T]o break my fall I put my hand against the door frame and he slammed the door on my hand and I pushed it back open with my right hand and before I could get my right hand out of the door he slammed it again and held it shut and was obviously pushing with all his might because it hurt very much and I started screaming at him to open the door, that he had my hand in the door and to let the door open and I would get my hand out, and he held it for several minutes . . . pushing with all his might. ...”

1. In our view the linchpin issue in this case is the question of agency. That is, did plaintiff present sufficient evidence to prove a principal/agent relationship between defendant and the unidentified patron who allegedly committed the subject tort? See OCGA § 51-2-1 (a); see generally Carter v. Kim, 157 Ga. App. 418 (277 SE2d 776) (1981). “The relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.” OCGA § 10-6-1. There is no assertion of agency by express agreement, so we will confine our discussion here to agency by implication and agency by ratification.

“Proof of agency and of the nature of the agency may be made by showing circumstances, apparent relations, and the conduct of the parties. . . .” Martin & Hicks v. Bridges & Jelks Co., 18 Ga. App. 24 (2) (88 SE 747) (1916). However, “where the only evidence that a person is an agent of another party is the mere assumption that such agency existed, or an inference drawn from the actions of that person that he was an agent of another party, such evidence has no probative value and is insufficient to authorize a finding that such an agency exists. [Cits.]” Shivers v. Barton & Ludwig, 164 Ga. App. 490, 491 (296 SE2d 749) (1982). A review of the record in this case persuades us that the unidentified person alleged to have caused plaintiff’s injuries was merely an individual patron of defendant’s nightclub. Although this person was at the door of the nightclub with the manager, there is no evidence that he had been requested to assist the manager in dealing with plaintiff or that he was in any way concerned with or responsible for the security of the nightclub. The testimony of defendant’s president — that on occasion patrons, “without asking them to do anything from me or any of my employees,” intercede in altercations or when other patrons become rowdy or unruly and assist in escorting the troublemakers out of the nightclub — provides no evidence of agency and, in any event, is irrelevant to the alleged agency relationship in the case at bar. See OCGA § 24-2-2; Conyers v. Ford, 111 Ga. 754 (2) (36 SE 947) (1900). We accordingly find no probative evidence of agency by implication.

Likewise, we find no record evidence of agency by ratification. “ ‘Ratification is the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account, whereby the act, as to some or all persons, is given effect as if originally authorized by him.’ [Cits.]” Greene v. Golucke, 202 Ga. 494 (1) (43 SE2d 497) (1947). However, “[t]he doctrine of ratification is not applicable against a principal as to the act of a third person who did not assume to act in the name of or under the authority of the principal. [Cits.]” Morgan v. S. C. Johnson & Son, 72 Ga. App. 444, 446 (33 SE2d 915) (1945); Greene v. Golucke, supra at (2). The evidence in this case shows that the unidentified patron acted in an individual capacity and not as one holding himself out as acting in the name of or under the authority of defendant. Accord, e.g., Davis v. Stone Mtn. Mem. Assn., 179 Ga. App. 486 (2) (347 SE2d 317) (1986); de la Gonzalez v. Krystal Co., 173 Ga. App. 574 (3) (327 SE2d 546) (1985); see also Ogletree v. MacDougald Constr. Co., 45 Ga. App. 128 (1) (163 SE 320) (1932).

2. Since the holding in Division 1 is dispositive of the case, plaintiffs remaining enumerations of error need not be considered. Also, although the trial court based its decision on grounds other than those discussed above, “ ‘[a] correct decision of a trial court will not be reversed, regardless of the reasons given therefor.’ [Cit.]” Tony v. Pollard, 248 Ga. 86, 88 (281 SE2d 557) (1981); White Repair &c. Co. v. Ga. Roofing &c. Co., 152 Ga. App. 92 (262 SE2d 164) (1979).

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur. Deen, P. J., also concurs specially.

Deen, Presiding Judge,

concurring specially.

While concurring fully with the majority opinion, which decides the case on the question of agency, additional comments should be made with regard to the direction of the verdict in favor of the defendant.

Many of the customers of the nightclub were young people 18,19, and 20 years of age attracted by live bands and the pushing of strong drinks; the nightclub to some extent catered to a young, “punk-rock”type clientele. Compare Levangie v. Dunn, 182 Ga. App. 439 (356 SE2d 88) (1987), where music, drink, drugs, porn photos, and headbanging were part of the attraction. In the instant case, the plaintiff had already had five or six drinks before he got to the nightclub, “where beer and other species of ‘fire water’ are dispensed.” Harrell v. State, 34 S2d 241, 242 (Fla. 1948). Upon his arrival at the bar, he consumed another beer and became “silly drunk,” or “skunk drunk,” as well as bombed on “two B-52 shooters.”

The first Chief Judge of our court, Benjamin H. Hill, spoke on this subject and observed in a related-type case many years ago that three-fourths of all crime is due directly or indirectly to the excessive use of intoxicants. Chief Judge Hill eloquently observed: “The facts of this case present another of the daily occurring instances showing the monstrous and measureless evil of intoxicating liquors. This hydra-headed and remorseless monster, with ceaseless and tireless energy, wastes the substance of the poor, manufactures burdensome taxes for the public, monopolizes the valuable time of the courts, fills jails, penitentiaries, and asylums, ruins homes, destroys manhood, terrorizes helpless women and innocent children, baffles the church, and mocks the law, and, answering its inexorable demands, ‘each new morn new widows mourn, new orphans cry, new wrongs strike Heaven in the face.’ ” Langston v. State, 10 Ga. App. 82 (72 SE 532) (1911). Unfortunately, the passage of time may have borne out the verity of Chief Judge Hill’s attitude, as those observations seem even more applicable in our present state of society.

Articulate appellate advocate arduously argues that where one becomes noticeably intoxicated and inebriated and rough, rude, riotous and rowdy as a result, he is entitled to perhaps a higher standard of care than the other, more sober patrons. See Southern Bell Tel. &c. Co. v. Altman, 183 Ga. App. 611 (359 SE2d 385) (1987), where the employer had several co-workers take another, inebriated employee home following an employer-sponsored banquet. In that case, the employer satisfied its duty to the intoxicated employee, although the employee subsequently left home and was killed in an automobile collision. In the instant case, we are concerned with the standard of care of a commercial owner. Appellant argues that one who is drunk is no less entitled to protection than one who is sober, relying on a venerable California case, Robinson v. Pioche, Bayerque & Co., 5 Cal. 460 (1855). In Robinson, an intoxicated person fell into a hole in the sidewalk, and the court ruled, “A drunken man is as much entitled to a safe street as a sober one, and much more in need of it.” Id. at 461.

In the case sub judice, we don’t have a drunk falling into a hole in the sidewalk, but a drunk having a door slammed on his hand as he was wrongfully attempting to re-enter an establishment from which he had justifiably been ejected. When the plaintiff first arrived at the nightclub, of course, he was an invitee. Thereafter, a micro-adaptation or mini-evolution occurred, gradually turning him into a licensee and then into a trespasser. Because of his behavior, the police were eventually called and took custody of him. When he later got away from the police, he again went back into the bar; at this point in time, he was a trespasser. He may have a cause of action as in Robinson v. Pioche, Bayerque & Co., supra, but it would be against the unidentified patron who slammed the door on his hand. The bar satisfied its duty to him, as did the employer in Southern Bell Tel. &c. Co. v. Altman, supra, and, therefore, the trial court did not err in directing a verdict in favor of appellee.

Decided June 30, 1987.

Michael M. Calabro, for appellant.

Thomas S. Carlock, Johannes S. Kingma, for appellee.


author: Birdsong, Chief Judge.

text:
    74417.
    RAY et al. v. STRAWSMA.
    (359 SE2d 376)
   Birdsong, Chief Judge.

The appellants Anthony and Brendá Ray contracted with the ap-pellee Ron Strawsma (d/b/a Strawsma Construction Company) to build a house. The appellee built the house. The appellants moved into the house and lived in the house. The appellants refused to pay the appellee. This matter was tried before a jury and the jury found against them.

Strawsma Construction Company contended in its suit that the original contract price was $119,600; additions totalled $7,371.53; total contract price thus amounted to $126,971.53. Appellants paid Straw-sma $95,000 before disengaging him, leaving a balance owed of $31,971.53, but their cost of completion was $5,148.00, leaving the “alleged balance” due Strawsma of $26,823.53. Appellants counterclaimed for repairs to a security alarm system allegedly damaged by Strawsma or his agents, and for latent defects not discovered or discoverable prior to termination date of the contract. Appellants’ expert Clapp testified there were flaws and defects which could not be repaired such as out-of-plumb walls and unlevel floors; this witness testified that for $30,450 he might be able to raise the quality of the house from poor to average. Another witness, Dumas, attempted to testify as to diminution in value resulting from those defects that could not be repaired. The trial court refused to admit Dumas’ opinion for the reason that diminution in value resulting from defects which could not reasonably be repaired is not probative of value because the measure of damages is “the difference in the value of the house as delivered by the plaintiff contractor and the value of the house as it ought to have been finished under the terms of the contract.” See Rose Mill Homes v. Michel, 155 Ga. App. 808 (273 SE2d 211). Appellants complain of this and other alleged errors. Held:

1. The trial court erred in refusing to allow the witness Dumas to give his opinion of diminution in value resulting from defects which could not reasonably be remedied. It is true that the measure of damages in these cases of alleged breach by the contractor is the difference in the value of the house as completed by the contractor and the value of the house as it ought to have been finished under the terms of the contract. Rose Mill Homes, supra. However, this is the measure of damages; but proof of such value difference is a different matter. This difference in value may be “illustrated” by the reasonable cost of repair of defects (id. p. 808; Hutto v. Shedd, 181 Ga. App. 654, 656 (353 SE2d 596)); that is, by deducting from the contract price the sum which would be required to complete the house according to the contract. Rose Mill Homes, supra. Thus, the “sum required to make the [building] conform to the specifications fixed by the contract” is generally the measure of damages (different in value as contracted for and as delivered), but the object of such evidence is “to enable the jury to reach a verdict reflecting the difference in value. . . . ‘Value may be shown by the testimony of experts, or by other testimony as to the nature of the injuries sustained and as to the material and labor supplied; and testimony as to the actual cost is admissible, such cost being a circumstance which may be considered by the jury in determining such value, under their right to weigh all the facts and circumstances bearing upon that question, and to form their own judgment on the data in evidence.’ [Cits.]” Wilson v. Black, 114 Ga. App. 735, 737-738 (152 SE2d 755).

The evidence offered by the defendant homeowners in this case showed that there were defects which could not be reasonably repaired, such as out-of-plumb walls and unlevel floors. The case of Small v. Lee & Bros., 4 Ga. App. 395 (61 SE 831), involved a variance from the contract (defect) which could not be repaired. It was complained that the jury charge excluded from the consideration of the jury “what it would take to make the house as built conform to the house as contracted for.” Id. p. 396. We concluded the measure of damages “must necessarily vary with the facts of the particular case and be determined according to these facts.” Id. p. 397. We held: “Where the defects in the house as constructed may be remedied at a reasonable expense, it would be proper, we think, to deduct from the contract price the sum which it would cost to complete it according to the requirements of the plans and specifications. [Cit.] If the contractor has built a structure substantially adapted to the purposes for which it was built, and of which the owner is in the use and enjoyment, but the defects of the structure can not be made to conform strictly to the requirements of the contract, except by an expenditure which would deprive the contractor of adequate compensation for his labor and materials, justice and equity would require the adoption of another measure of damages.” Id. p. 397.

We think this rule is correct whether the house is “substantially adapted” to its purpose and the owner is getting the benefit of it, as in Small v. Lee, or whether it is allegedly “worthless.” It has some value, if only for scrap (see Hutto v. Shedd, supra, p. 656), and that value may obviously be whatever it is worth as a result of the irremediable defects. The owner should not have the benefit of that value, however low, by recovering the entire contract price; the property’s value as diminished by irremediable defects should be deducted from the value of the house as it should have been completed according to the contract.

This is not a new rule, nor is it necessarily limited to breach of contract cases. See Georgia-Car. Brick &c. Co. v. Brown, 153 Ga. App. 747, 756 (266 SE2d 531). In Allgood Rd. &c. Church v. Smith, 173 Ga. App. 28, 29 (325 SE2d 392), which involved damage to property due to negligence, we said: “ ‘Questions of value are peculiarly for the determination of the jury, where there is any data in the evidence upon which the jury may legitimately exercise their “own knowledge and ideas.” [Cit.]’ . . . The general rule for the measure of damages involving real property is the diminution of the fair market value of the property and/or the cost of repair or restoration. See generally El-dridge, Ga. Pers. Inj. & Prop. Dam. — Damages, §§ 8-2 and 8-3.” See also Mercer v. J & M Transp. Co., 103 Ga. App. 141, 143 (118 SE2d 716), where we said: “ ‘As a general rule the measure of damages in actions for injuries to real property is the difference in value before and after the injury to the premises.’ ” If the damage cannot be repaired, it seems pointless error to insist the value be determined by cost of repair.

The trial court correctly charged the jury in this case that as to the defendants’ counterclaim the measure of damages was “the difference in value of the house as finished by the plaintiff and the value of the house as it ought to have been finished under the terms of the contract.” But, since there was evidence of defects that could not be reasonably repaired, the proof was not limited to the contract price less cost of repair, but properly could be shown by the diminution of value resulting from these defects that could not be repaired. Small, supra; Allgood, supra.

The trial court erred in refusing to let the witness Dumas give his opinion of such diminution. Rose Mill Homes, supra.

However, we are unable to detect how this error harmed the defendant owners. The defendants additionally showed evidence that damage was so extensive it would cost more than $30,450 to repair any defects, if they could be repaired, and still the jury failed to render a verdict for the defendants on their counterclaim or the contractor’s claim. There was evidence that after the owners disengaged the contractor, the house could be completed according to the terms of the contract for $8,000, and this is what the jury found, deducting this amount from the balance owed and giving a verdict for $23,938.84 to the contractor. Therefore, as a matter of fact the exclusion of Dumas’ testimony as to “diminution of value resulting from defects that could not be repaired” was harmless, since the jury found the defects could be repaired.

2. Appellants are not entitled to a reversal of the judgment based on excluded jury charges. The trial court correctly charged as to the consideration of expert testimony, and as to the measure of damages; the court charged correctly that if any defects could be reasonably remedied, such cost could properly be deducted from the contract price. The trial court did not charge that damages could be assessed based on the diminution of value resulting from defects that could not be reasonably repaired; such a charge was authorized in this case but as we indicated in Division 1 was harmless.

3. The trial court did not err in refusing a directed verdict to the Rays on the contractor’s claim for breach of contract, which appellants based on failure of the contractor to prove damages under Williams v. Kerns, 153 Ga. App. 259 (265 SE2d 605). Appellant owners contend this being a case which the jury evidently believed involved a breach by the owners to pay, the contractor is allowed only his expenses and his profit, but, say appellants, “ ‘in no event to exceed the contract price.’ ” Id. p. 263. However, appellants evidently concede, as the jury found, that the contract price was increased by additions totaling $7,371.53. The contractor’s profit was figured in the total contract price and the jury’s award reflects this figure. Appellants were not entitled to a directed verdict which in effect would have given them the $7,371.53 additions for free.

4. Appellants made claim for a defective security alarm system. Evidence showed the alarm system was installed by a third party. The appellants’ claim for damages is based on the assertion that the entire contract was a “turn-key” job. However, appellants have made no showing to this court of any evidence showing causation between the malfunction of the system, whatever it is, and any work done or not done by the appellee. The general assertion appears to be that a “turn-key” job constitutes a guarantee. A “turn-key” job has been defined as one which is “technically a contract of sale. The developer (or seller) obtains his own funds for construction. There are no progress payments or liquidated damages provisions. The contractor does not have to furnish a performance bond, and the arrangement therefor has advantages for minority contractors who may lack substantial bonding capacity. The purchaser agrees to accept and pay for the units when they are completed and habitable, i.e., when the purchaser can ‘turn the key’ and move in.” First Nat. Bank of Aberdeen v. Indian Indus., 600 F2d 702, 704 fn. 3 (8th Cir. 1979). But “turn-key” or not, the owner still must show a defect and the failure to perform the contract in a skilful, careful, diligent and workmanlike manner. See Blue v. R. L. Glosson Contracting, 173 Ga. App. 622, 623 (327 SE2d 582). The evidence in this case certainly does not show this contract was a “turn-key” job and in any case the evidence does not demand a finding that there was a defect in the security system for which the contractor was liable. OCGA § 9-11-50. The trial court did not err in refusing to direct a verdict for the appellant owners on this issue.

Decided June 18, 1987

Rehearing denied July 10, 1987

Peter J. Rice, Jr., for appellants.

E. Angela Emerson, for appellee.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


author: Sognier, Judge.

text:
    74480.
    KROGER COMPANY v. MICHAELS.
    (359 SE2d 698)
   Sognier, Judge.

Sharon Lynn Michaels brought an action against The Kroger Company to recover damages for injuries suffered when she slipped and fell in a Kroger store. The jury returned a verdict in Michaels’ favor for $3,000, which Michaels appealed to this court. This court reversed and remanded for new trial. Michaels v. Kroger Co., 172 Ga. App. 280 (322 SE2d 903) (1984). Before retrial, Michaels voluntarily dismissed her action pursuant to OCGA § 9-11-41 (a). When the renewal action was filed, Kroger answered asserting that all costs of the prior action had not been paid pursuant to OCGA § 9-11-41 (d). The trial court denied Kroger’s motion for summary judgment made on that ground, but certified its ruling for immediate review and we granted this interlocutory appeal.

Appellant contends no question of fact exists that the costs of empaneling the jury in the prior action had not been paid prior to the filing of this suit, and therefore the trial court erred by denying appellant’s motion for summary judgment. The Uniform Rules for the Superior Courts, 253 Ga. 801 (1985), provide in Rule 12 that “[i]f a civil action is voluntarily dismissed (other than as a result of final settlement agreement, the terms of which are dictated, in court or in chambers, into the record) after the trial jury has been empaneled, all court costs including juror fees incurred for all panels from which the trial jury was selected shall be taxed against the dismissing party.” 253 Ga. 825. Although the prior action was tried before the promulgation of the Uniform Rules, when the rules were adopted, the Supreme Court directed that they become effective July 1, 1985, and apply to “all pending cases.” 253 Ga. 800. As the judgment in the prior action was reversed by this court in September 1984, and that action was not voluntarily dismissed by appellee until October 1985, it was “pending” in the trial court when Uniform Rule 12 became effective, and we agree with appellant that the rule is applicable here.

Decided June 25, 1987

Rehearing denied July 10, 1987

Wade K. Copeland, Daniel B. Simon III, for appellant.

Jeffrey G. Casurella, for appellee.

It is well established that payment of the accrued costs is a condition precedent to the renewal of the action following a voluntary dismissal. Little v. Walker, 250 Ga. 854 (301 SE2d 639) (1983). However, “the costs which must be paid pursuant to OCGA § 9-11-41 (d), as a precondition to the filing of a new suit, do not include costs unknown to plaintiff after a good faith inquiry.” Daugherty v. Norville Indus., 174 Ga. App. 89, 91 (329 SE2d 202) (1985).

In appellee’s affidavit, she swore that she “did investigate with the Costs Clerk of Fulton County Superior Court the incurred costs in the predecessor action” and that “[at] the time of filing [the renewal action], all the preliminary incurred costs were paid.” Because appel-lee’s affidavit, and the entire record, present us with insufficient facts, we are unable to say unequivocally that appellee’s investigation rose to the level necessary to constitute a good faith inquiry. It is axiomatic, however, that “‘[o]n motion for summary judgment the evidence is viewed in a light most favorable to the respondent, and the respondent is given the benefit of every doubt.’ [Cit.]” Mallard v. Jenkins, 179 Ga. App. 582 (347 SE2d 339) (1986). Giving appellee the benefit of the doubt, a question of fact is raised whether her efforts to ascertain the costs owed before refiling her action amounted to a good faith inquiry which would prevent involuntary dismissal for failure to comply with OCGA § 9-11-41 (d). The trial court therefore properly denied appellant’s motion for summary judgment. See generally Smith v. Rowell, 176 Ga. App. 100, 101 (335 SE2d 461) (1985).

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    74842.
    ROSS et al. v. MULLIS TREE SERVICE, INC.
    (360 SE2d 288)
   Banke, Presiding Judge.

The appellants appealed to superior court by writ of certiorari from an adverse decision of the Macon-Bibb County Planning and Zoning Commission, granting an application by Mullís Tree Service, Inc., to allow certain property to be used as a landfill. The superior court dismissed the appeal based on the appellants’ failure to serve Mullís Tree Service with a copy of the petition in a timely manner. The appellants then filed a direct appeal to this court, which Mullis Tree Service has moved to dismiss based on the appellants’ failure to follow the discretionary appeal procedures set forth at OCGA § 5-6-35. Held:

Decided July 10, 1987.

F. Robert Raley, for appellants.

Tim D. Hemingway, for appellee.

This court has previously held that OCGA § 5-6-35 (a) (1) is applicable to appeals from decisions of the superior courts reviewing decisions of local zoning tribunals, regardless of whether the appeal was dismissed by the superior court or whether a ruling on the merits was issued. See Brewer v. Bd. of Zoning Adjustment, 170 Ga. App. 351 (317 SE2d 327) (1984). The motion to dismiss the present appeal is accordingly granted.

Appeal dismissed.

Carley and Benham, JJ., concur.


author: Banke, Presiding Judge. Benham, Judge,

text:
    73706.
    STROUD v. WOODRUFF.
    (359 SE2d 680)
   Banke, Presiding Judge.

The appellant sued the appellee to recover for personal injuries and property damage allegedly sustained in a motor vehicle collision, and the appellee counterclaimed to recover his alleged damages resulting from the same collision. The jury returned a verdict for the appellant in the amount of $10,000, which was $3,784 less than the amount of special damages proved by him. This appeal is from the denial of his motion for new trial.

The collision occurred at a “blind” intersection which the appel-lee was approaching from the west, driving an automobile, and the appellant was approaching from the north, driving a motorcycle. The appellee was required to stop at a stop sign before entering the intersection, while the appellant was not. There was evidence that, due to an overgrowth of kudzu and grass at the northwest corner of the intersection, a vehicle stopped at the stop sign in the appellee’s lane of traffic would be hidden from the view of traffic approaching from the north in the appellant’s lane, and vice versa. The appellee’s automobile was struck by the appellant’s motorcycle on the driver’s side. Held:

1. The appellant contends that there was no evidence from which it could reasonably be inferred that he had been negligent in any way and that the trial court consequently erred in charging the jury on the doctrine of comparative negligence. While it is undisputed that the appellant had the right-of-way and while there is no evidence to suggest that he was exceeding the speed limit or otherwise violating any traffic laws, there was evidence from which it could be inferred that he was familiar with the lack of visibility at the intersection yet took no precautionary measures, such as significantly reducing his speed, to allow for such lack of visibility.

It does not follow from the fact that a driver has the right-of-way at an intersection that he is thereby entitled “to drive blindly or recklessly across [the] intersection, especially one which might be termed a ‘blind intersection,’ without regard to the conditions and consequences.” Eddleman v. Askew, 50 Ga. App. 540 (3) (179 SE 247) (1934). See also Kirkland v. Moore, 128 Ga. App. 34, 35-36 (195 SE2d 667) (1973). “[E]ven if the [other] driver ... is guilty of negligence per se or has otherwise failed to exercise ordinary care in approaching the intersection, this will not relieve the driver having the right-of-way of his own legal duty to exercise ordinary care under the facts and circumstances of the situation. It is his duty to exercise ordinary care, to remain alert in observing the vehicles approaching the crossing, and to exercise ordinary care ... to avoid a collision, after he sees or by ordinary diligence could have seen that one is threatened or imminent.” Currey v. Claxton, 123 Ga. App. 681, 682 (1) (182 SE2d 136) (1971). (Emphasis supplied.)

Under the circumstances of this case, we must conclude that the issue of whether or not the appellant exercised due care upon approaching the intersection was for the jury, not the court, to determine; and we accordingly hold that the court did not err in charging on comparative negligence. Accord Kirkland v. Moore, supra (upholding a verdict in favor of the defendant in a similar case in which the plaintiff’s motorcycle was struck by the front of the defendant’s car as the two were proceeding through the intersection). Compare Moore v. Price, 158 Ga. App. 566 (281 SE2d 269) (1981) (holding that no issue regarding the plaintiff’s negligence was raised where the undisputed evidence showed that the collision was the result of the defendant’s negligently losing control of his vehicle and crossing over the center-line of the road).

2. Similarly, the trial court did not err in charging the jury on the doctrine of avoidable consequences (see generally OCGA § 51-11-7), nor in charging that the driver of a motor vehicle is under a duty to maintain a diligent lookout for other traffic. See Leggett v. Brewton, 104 Ga. App. 580 (3) (122 SE2d 469) (1961). Both these charges stated correct abstract legal principles; and, as held in Division 1 of this opinion, supra, the issues of whether the appellant had, under the circumstances, maintained a diligent lookout for other vehicles upon approaching the intersection and otherwise exercised due care for his own safety were proper subjects for jury consideration.

3. Any error which may have been committed by the trial court in charging on the doctrine of legal accident was rendered moot by the jury’s verdict awarding damages to the appellant, such verdict being inconsistent with a determination that the collision was not the fault of either party. Accord Atlanta Recycled Fiber Co. v. Tri-Cities Steel Co., 152 Ga. App. 259, 267 (5) (262 SE2d 554) (1979). See generally Chadwick v. Miller, 169 Ga. App. 338, 344 (312 SE2d 835) (1983).

4. The appellant contends that the trial court erred in refusing to give his requested charge that “[i]n arriving at the award for pain and suffering, you may also take into consideration the effect inflation has had on the purchasing power of the dollar. . . .’’In support of this enumeration of error, the appellant cites Leonard v. Kirkpatrick, 118 Ga. App. 277 (1) (163 SE2d 340) (1968). However, in that case this court sustained the trial court’s refusal to give such a charge, declining to interfere with the trial court’s discretion in the matter. We similarly find no abuse of discretion under the circumstances of the present case, particularly in the absence of any showing of the extent to which the purchasing power of the dollar had declined between the date of the accident and the time of trial. Moreover, we note that because the requested charge applied by its terms only to damages awarded for pain and suffering and because it is apparent any award of such damages by the jury was minimal, the failure to give the requested charge could not have resulted in substantial harm to the appellant.

5. The appellant contends that the verdict was inadequate in that the damages awarded were less than the amount of the special damages proved. This enumeration of error is also without merit. Generally speaking, where “comparative negligence [is] involved under the pleadings and the evidence ... , a verdict for damages for personal injuries cannot properly be set aside on the ground that the verdict is inadequate.” Cox v. Nix, 87 Ga. App. 837, 839-840 (75 SE2d 331) (1953). See also Jordan v. Ellis, 148 Ga. App. 286, 290 (250 SE2d 859) (1978).

6. It follows from the foregoing that the trial court did not err in denying the appellant’s motion for new trial.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Sognier and Beasley, JJ., concur. Carley, Pope, and Benham, JJ., dissent.

Benham, Judge,

dissenting.

I am unable to agree with the holding of the majority that the evidence authorized jury instructions on comparative negligence or avoidance of consequences. My review of the trial transcript discloses no evidence of negligence on the part of the appellant, although there was evidence of the appellee’s negligent act in failing to stop at the stop sign at the intersection. The testimony of the eyewitness, who was the driver of a vehicle stopped at the intersection, was that he could see both appellant’s motorcycle and appellee’s car approaching the intersection; that he stopped because he saw appellee’s car was not going to stop, and said to his wife, who was a passenger in his truck, “Look out, there’s fixing to be a wreck”; and that appellee’s car did not stop at the stop sign and did not slow down. Appellant testified that he was familiar with that stretch of the road and the intersection; that he knew there was a rise at the intersection so he would always take the precaution to “coast” through it; and that if a car were stopped at the intersection his view of it would not be obstructed, but if it were further back he could not have seen it because of the hill and overgrowth. The appellee testified that he did stop at the intersection and looked north but did not see appellant. While appellee alleged that appellant was speeding, and failed to keep a proper lookout and to have his vehicle under control, the testimony did not substantiate those conclusions, nor did appellee produce any other evidence to do so. The eyewitness stated that it appeared to him that the driver of the motorcycle swerved to avoid the collision. The evidence also indicated that while the collision occurred too rapidly for appellant to successfully take any evasive maneuvers, there was nothing to show any loss of control or excessive speed on his part.

“ ‘A driver having the right of way . . . has the right to assume that others will obey the rule of the road [Cit.] and he has a right to proceed at a reasonable speed even though he sees another vehicle approaching. What he cannot do is to test a known and obvious peril, and after it is or should be clearly apprehended that a collision is threatened or imminent, he cannot blindly and recklessly proceed without regard to conditions and consequences. [Cits.]’ (Emphasis omitted.) . . . ‘[W]here there is no evidence to show that one party could in fact have discovered and avoided the negligence of the other, [an] instruction [on the plaintiff’s duty to avoid the negligence of the defendant] is inappropriate and should not be given. [Cits.]’ . . . There is no ‘absolute duty on any driver to avoid a collision’ [cit.], and the burden was on [appellee] to prove that his negligence could have been discovered and avoided by [appellant]. [Cit.] This burden was not met.” Moore v. Price, 158 Ga. App. 566, 569 (281 SE2d 269) (1981).

“Response by mere conclusory statements is insufficient to set forth specific facts showing a genuine issue for trial. [Cit.] . . . We are aware of no precedent which would impose a standard of care on one person which requires him to presume the negligence or sudden emergency of another. This proposition is simply untenable.” Tallman Pools of Ga. v. James, 181 Ga. App. 341, 343 (352 SE2d 179) (1986). Where the record contains no evidence of any negligence on the part of the plaintiff, “it is presumed, in the absence of evidence to the contrary, that plaintiff exercised due care. [Cit.]” Nelson & Budd v. Brunson, 173 Ga. App. 856, 857 (3) (328 SE2d 746) (1985). “Since it is error to charge on the doctrine of comparative negligence when there is no evidence of such negligence even though the issue . . . may have been raised in the defendant’s pleadings [cits.], the instruction complained of here was erroneous; and since the verdict rendered by the jury was for an amount less than sued for, such error was presumptively harmful to the plaintiff and requires the grant of a new trial. [Cit.]” Massey v. Stephens, 113 Ga. App. 10, 11 (147 SE2d 53) (1966). Accord Battle v. Strother, 171 Ga. App. 418 (5) (319 SE2d 887) (1984); Elsberry v. Lewis, 140 Ga. App. 324 (5) (231 SE2d 789) (1976). Compare Hester v. Baker, 180 Ga. App. 627 (2) (349 SE2d 834) (1986).

Decided June 16, 1987

Rehearing dismissed July 13, 1987.

Martin M. Kendall, for appellant.

James R. Fortune, Jr., for appellee.

The transcript is devoid of any evidence even suggesting that appellant drove “blindly or recklessly” through a “blind intersection,” or otherwise failed to exercise ordinary care in approaching it under the facts and circumstances of this situation. Nor was it shown that he failed to remain alert in observing the vehicles approaching the crossing so that with ordinary diligence he could have avoided the collision. Compare Kirkland v. Moore, 128 Ga. App. 34 (195 SE2d 667) (1973). Accordingly, I respectfully dissent from Divisions 1 and 2 of the majority opinion and the judgment.

I am authorized to state that Judge Carley and Judge Pope join in this dissent.


author: Pope, Judge.

text:
    73745.
    WRIGHT et al. v. M. D. HODGES ENTERPRISES, INC.
    (359 SE2d 700)
   Pope, Judge.

Plaintiff Charles Michael Wright was injured during the course of his employment with Skyline Steel Erectors on a construction project when he fell from atop a steel column which had been set on footings poured for steel column placement. Wright received workers’ compensation benefits from his employer. Wright and his wife then filed a tort action against defendant M. D. Hodges Enterprises, Inc., the owner and developer of the construction site. Hodges had entered into a standard subcontract with Wright’s employer for material and labor for the erection of structural steel for the construction project. Hodges acted as its own general contractor on the project. Moreover, Hodges’ own employees cleared and excavated the land at the construction site, poured the foundation for the building and set the bolts to which the columns of structural steel were to be set by Wright’s employer. The lower court awarded summary judgment to defendant on the ground defendant was Wright’s statutory employer pursuant to OCGA § 34-9-8 and is therefore immune from tort liability to plaintiffs pursuant to the exclusive remedy provision of the Workers’ Compensation Act, OCGA § 34-9-11. Plaintiffs appeal.

1. Plaintiffs argue that an owner, even one acting as its own general contractor for a construction project, is not a statutory employer pursuant to OCGA § 34-9-8 unless it is also serving as a contractor for “yet another entity” and has hired another contractor to perform work under that contract. See Modlin v. Black & Decker Mfg. Co., 170 Ga. App. 477 (317 SE2d 255) (1984). The reasoning in Modlin was expressly adopted by the Georgia Supreme Court. “ ‘Owners or entities merely in possession or control of the premises would not be subject to workers’ compensation liability as statutory employers, except in the isolated situation where [that] party also serves as a contractor for yet another entity and hires another contractor to perform the work on the premises.’ ” Manning v. Ga. Power Co., 252 Ga. 404, 406 (314 SE2d 432) (1984), quoting Modlin, supra at 478-479. Unfortunately, Modlin has been interpreted as setting forth two internally inconsistent tests for determining whether an owner is also a statutory employer. See McCorkle v. United States, 737 F2d 957 (11th Cir. 1984). Here, this court will attempt to clarify the circumstances under which an owner may be a statutory employer.

The Eleventh Circuit Court of Appeals has queried: “We are not sure which prong of Modlin the Georgia courts intend to control. Georgia might want the contractor/not a contractor bright line rule. Or it may want an ‘owner plus,’ or ‘circumstances of the case,’ rule.” McCorkle, supra at 961. In fact, we intend to apply both these rules in a two-pronged test. If the owner is “merely in possession or control” of the premises upon which the employee of a company under contract to the owner is injured, then the so-called “bright line” rule would apply. In that event, the owner would not be considered the statutory employer of the injured employee unless the owner also serves as contractor “for yet another entity” and has hired the injured employee’s employer to perform work under that contract on the owner’s premises. If, on the other hand, the owner is not “merely in possession or control of the premises” but is actively involved in the enterprise in which the employee was injured, then the circumstances of the particular case should determine whether the owner is a statutory employer of the injured employee.

Decided June 25, 1987

Rehearing denied July 13, 1987

William A. Pannell, Charles B. Zirkle, Jr., for appellants.

Robert A. Barnaby II, Christopher N. Shuman, Barbara B. Holmes, for appellee.

In the case at hand, the owner was not under contract to another entity but served as its own general contractor for a construction project. “In the construction business, the ‘owner’ obstacle has been overcome by finding that the owner was his own general contractor, or by ruling that a general building contractor is no less a covered contractor because he is also the owner of the property he is developing.” 1C Larson, Workmen’s Compensation Law, § 49.13 (1986); see, e.g., Posey v. Union Carbide Corp., 510 FSupp. 1143 (M.D. Tenn. 1981) (applying Tennessee Law); Hosvepian v. Hilton Hotels Corp., 94 Nev. 768 (587 P2d 1313) (1978); Owen v. Kaiser Aluminum &c. Corp., 417 F2d 303 (5th Cir. 1969) (applying Louisiana law). In this case, defendant owner not only acted as its own general contractor but was also actively involved in the enterprise in which plaintiff was injured. Here, the owner was more than a mere developer who hires others to construct improvements upon his land. The undisputed facts show defendant acted as supervisor and a supplier of labor for the project. Therefore, summary judgment was properly granted to defendant on the ground defendant was Wright’s statutory employer.

2. Based on the facts recited above, we find no issue of fact remains for determining whether defendant was Wright’s statutory employer.

Judgment affirmed.

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


text:
    73820.
    WORTH COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY et al. v. LEHIGH VALLEY INDUSTRIES, INC.
    (359 SE2d 707)
   Pope, Judge.

In 1967 defendant Lehigh Valley Industries, Inc. built a textile plant in Worth County. Construction of the plant was financed through the sale of industrial revenue bonds by the Worth County Industrial Development Authority (the Authority). In consideration for the financing arrangement, title to the plant was vested in the Authority which then leased the plant back to Lehigh. Lehigh is a diversified corporation which maintains several operating divisions involved in various enterprises. In 1982 Lehigh spun off its textile division and transferred all assets, rights, title and interest of that division to a newly formed corporation. In conjunction with that transfer, Lehigh assigned to the successor corporation all rights and obligations under the lease with the Authority. The assignment of the lease was consented to by the Authority and the trustee representing the bondholders. The successor corporation (hereafter “assignee corporation”) defaulted on the lease and the Authority and trustee brought suit against Lehigh to recover rent due under the lease. Plaintiffs appeal from the trial court’s grant of summary judgment to Lehigh and the denial of summary judgment to plaintiffs. The lower court did not reveal the ground on which summary judgment was granted. However, Lehigh argues it was released from liability for rent either by the terms of the lease or by the written consent of the Authority and trustee.

1. By its terms, the lease could be assigned by Lehigh without the consent of the Authority or trustee. However, Section 9.1 (a) of the lease provided: “No assignment (other than pursuant to Section 8.3 hereof) shall relieve the Lessee from primary liability for any of its obligations hereunder, and in the event of such an assignment the Lessee shall continue to remain primarily liable for payment of the rents. . . .” Pursuant to the lease, Lehigh could be released from liability only if, pursuant to Section 8.3 of the lease, it consolidated or merged with another corporation or transferred to another corporation “all or substantially all of its assets . . . [if] the corporation to which such transfer shall be made . . . shall (i) expressly assume in writing all of the obligations of the Lessee contained in this agreement, and (ii) shall have a consolidated net worth after such . . . transfer of not less than five times the principal amount of Bonds at the time outstanding.”

It is undisputed that the assignee corporation met the net worth requirements of the lease at the time of the transfer and that it assumed all obligations under the lease. However, Lehigh was not released from primary responsibility under the lease unless it transferred “all or substantially all of its assets” to the assignee corporation. The facts show Lehigh transferred only its textile division in what amounted to a spin-off of a substantial part, but not substantially all, of its assets. The assets transferred amounted to only sixty-five percent of Lehigh’s total assets.

The phrase “substantially all assets” has been construed most often in the context of statutes requiring the transfer of one corporation’s assets to another in order to qualify for certain statutory exemptions or benefits. For example, the transfer of two of five stores, representing sixty-five percent of the previous owner’s assets, was not substantially all the assets so as to entitle the successor corporation to the experience rating of the previous owner-employer pursuant to the Illinois Unemployment Compensation Act. Winakor v. Annunzio, 409 Ill. 236 (99 NE2d 191) (1951). Cf. Alameda Investment Co. v. McLaughlin, 28 F2d 81 (N.D. Cal. 1928) (ownership of seventy-five percent of a corporation’s stock is not “substantially all” of the stock to entitle the majority and minority stockholders to file a consolidated tax return under the Internal Revenue Code). “The word ‘substantially’ is necessarily an elastic term which does not indicate a definite, fixed amount of percentage. At one extreme it may be said that the transfer does not have to be 100%. At the other extreme it may be said that the transfer cannot be less than 90% in the ordinary situation. . . .” Auclair Transp. v. Riley, 96 N.H. 1, 4 (69 A2d 861, 863) (1949).

Section 8.3 of the lease required Lehigh to maintain its corporate existence throughout the term of the lease except in the case of merger, consolidation or transfer of all or substantially all its assets. The lease clearly anticipated that Lehigh would remain primarily liable to the Authority in all circumstances except where, through merger, consolidation or transfer, it lost its corporate existence. In this case, Lehigh remains a viable corporate entity. Even after the transfer of its textile division, three other operating divisions of the corporation remained. Under these circumstances, we find as a matter of law that the transfer of only sixty-five percent of the corporation’s assets does not amount to the transfer of “all or substantially all” of its assets. Therefore, we find Lehigh was not released from its obligations under the lease pursuant to Section 8.3 of the lease.

Nevertheless, Lehigh maintains it was released from the lease by the written consent of the authority and the trustee. The facts show the Authority was notified of Lehigh’s intent to assign the lease by letter from Lehigh’s attorney. That letter indicated the proposed assignment would be made in conjunction with a “restructuring [of Le-high’s] corporate set up.” The letter confirmed the assignee corporation would assume all obligations under the lease and recited the company’s net worth, apparently in an attempt to satisfy the requirements of Section 8.3 of the lease. Both the Authority and the trustee executed a written consent to Lehigh’s assignment of the lease. However, the undisputed facts show Lehigh never expressly informed the Authority or the trustee of its plan to transfer corporate assets to the assignee of the lease. Since the written consents, prepared by Lehigh’s own attorney, refer only to the assignment of the lease they cannot be interpreted as releases of Lehigh’s primary liability under the lease. The lease expressly states that an assignment will not release Lehigh from its obligations. “[M]ere acceptance by the obligee of performance by the assignee, or substituted obligor, of the contract is not sufficient to establish novation in the absence of words or conduct tending to show an intention or agreement on the part of the obligee to release the original obligor and extinguish his liability.” Cowart v. Smith, 78 Ga. App. 194, 199 (50 SE2d 863) (1948). When a lease recites that the original lessee is to remain liable even if the lease is assigned, “[t]he lessee [is] not relieved from its contractual obligation . . . merely because the lessor [gives] his written consent to the assignment.” Southland Investment Corp. v. McIntosh, 137 Ga. App. 216, 222 (223 SE2d 257) (1976). Neither is the stipulation entered into by the Authority and the trustee in bankruptcy proceedings brought by the assignee corporation evidence of the Authority’s intention to release Lehigh as the primary obligor under the lease. Lehigh transferred all its rights and interest under the lease to the assignee corporation. Therefore, the Authority’s agreement to apply the bond fund balance to the debt owed by the assignee and to grant the as-signee an option to purchase the premises pursuant to the terms of the lease in no way prejudiced Lehigh’s rights and did not serve as a novation releasing Lehigh from its obligations under the lease. Because there exists no evidence that the Authority or the trustee either expressly or impliedly released Lehigh from its obligation to remain primarily liable under the lease, judgment in favor of Lehigh was in error. See Leasing Systems v. Easy Street, Inc., 161 Ga. App. 756 (1) (288 SE2d 879) (1982); Franchise Enterprises v. Ridgeway, 157 Ga. App. 458 (1) (278 SE2d 33) (1981).

Decided June 29, 1987

Rehearing denied July 13, 1987

Timothy K. Adams, Hubert C. Lovein, Jr., Clarence A. Miller, for appellants.

Jerome L. Kaplan, Ronald C. Thomason, James J. Fason III, for appellee.

2. For the reasons recited in Division 1, we find the lower court erred in denying summary judgment in favor of the Authority and trustee.

3. Plaintiff’s third enumeration of error is addressed in Division 1 of this opinion.

Judgment reversed.

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


text:
    74533.
    LUCAS v. THE STATE.
    (360 SE2d 12)
   Banke, Presiding Judge.

The appellant was convicted of theft by taking, false imprisonment, and reckless endangerment of the bodily safety of another. He appeals the denial of his motion for new trial.

The evidence, construed most favorably towards the verdict, may be summarized as follows: In the spring and summer of 1982, the appellant visited the 72-year-old victim at her home in New York City and began to assume control over her financial affairs. When a friend of the victim asked the appellant during this period what sort of work he did, he replied that he “took care of old ladies.” The victim ultimately moved from New York and began living with the appellant in his home in Hahira, Georgia. Hahira had evidently been the hometown of the victim’s deceased former husband, and the appellant had apparently become acquainted with her there many years earlier.

Prior to leaving New York, the victim had begun to exhibit symptoms of senility; and over the course of the ensuing two-and-a-half years that she was living at the appellant’s home in Hahira, her mental condition deteriorated rapidly. Throughout this period, she was receiving social security and retirement benefit checks in the combined amount of $1,247 per month, which checks the appellant endorsed and negotiated. Additionally, the appellant received at least half the proceeds of a $15,000 savings account which the victim liquidated shortly before leaving New York. Also, the appellant admitted having purchased two parcels of New Mexico real estate from the victim for $600 apiece, one of which he sold almost immediately for $1,000 and the other of which he testified he would be willing to sell for $1,200. Altogether, it was shown that the appellant had controlled well over $40,000 of the victim’s money during the two-and-a-half year period he was “caring” for her, none of which he was able and/or willing to account for.

In late December of 1984, the appellant deposited the victim at a hospital emergency room in Valdosta in what was described by the attending physician as a dehydrated and comatose condition. When the appellant reappeared at the hospital later that day, the attending physician attempted unsuccessfully to persuade him to place the victim in a nursing home. After two to three weeks of hospital treatment, she was again released to his care. The physician indicated that although the victim’s mental capacity was severely impaired at this time due to hardening of the arteries of the brain, physically she was “in really good shape.” Approximately two months later, however, she was returned to the hospital “in even worse shape” than before, suffering from, among other things, extensive and severe skin ulcerations, which the physician characterized as indicative of neglect. Whereas the victim had at least had the physical and mental capacity to eat food at the time of her release from her initial hospitalization, she was not able to do so upon her return, and there was medical testimony that she would probably never be able to do so again. Held:

1. The appellant was not represented by an attorney at trial, and he contends on appeal that the trial court erred in failing to conduct an inquiry to insure that his decision to proceed pro se was voluntary and intelligent. As support for this contention, he cites Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981), wherein the Supreme Court held as follows: “[I]n future cases, the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se. The record should also show that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.”

While the record does not reflect that any such formal inquiry was conducted prior to trial in the present case, the following exchange did occur between the trial court and the appellant during the trial: “The Court: As you have . . . stated to me on several occasions, Mr. Lucas, you have both the financial resources and the ability to hire a lawyer, and you chose to represent yourself, is that not true? Appellant: Yes, sir. The Court: And you were aware, were you not, that you were going to be bound by the rules of evidence before we ever came into the case? I told you that, didn’t I? Appellant: Yes, sir, Your Honor.” Also the transcript contains an assertion by the appellant that he was “worth almost $400,000.”

While it certainly would have been preferable for the court to have advised the appellant formally prior to trial of the “dangers of proceeding without counsel,” we hold that, in view of the appellant’s failure to specify at the hearing on his motion for new trial wherein his pre-trial awareness of the dangers of proceeding without counsel was deficient, the foregoing portions of the transcript reasonably and sufficiently establish that his decision to represent himself was informed and voluntary. Moreover, since the record further reveals that the appellant presented a voluminous number of defense exhibits, subpoenaed and questioned several witnesses on his behalf, conducted a vigorous cross-examination of the state’s witnesses, and was allowed to conduct an in-camera examination of the state’s file prior to trial, and since the appellant has failed to specify on appeal any particular instances in which his lack of representation by an attorney might have undermined or impeded his defense, we conclude that any error the court may have committed in failing to elicit from him a formal waiver of his right to counsel prior to trial was harmless beyond a reasonable doubt.

2. The evidence, considered as a whole, was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of theft by taking (OCGA § 16-8-2) and recklessly causing harm to or endangering the bodily safety of another person (OCGA § 16-5-60). However, we find no evidence to indicate that the appellant at any time confined or detained the victim in violation of her personal liberty (i.e., against her will), and consequently we find no evi-dentiary basis for his conviction of false imprisonment (OCGA § 16-5-41). See generally Everett, Ridley & Co. v. Holcomb, 1 Ga. App. 794, 798 (58 SE 287) (1907). Indeed, it appears that the victim’s former sister-in-law (i.e., the sister of her deceased husband) lived across the street from the appellant’s home and was concerned enough for the victim’s welfare to visit her there on several occasions, yet she gave no indication in her testimony that she ever saw or heard anything to suggest that the victim was being held against her will. The conviction of false imprisonment is consequently reversed.

3. The appellant contends that the following charge to the jury involving the element of criminal intent was unconstitutionally burden shifting, due to the use of the words “presumption” and “presumed”: “Every person may be inferred to be of sound mind and discretion but this presumption may be rebutted. You may infer that the acts of a person of sound mind and discretion are presumed to be the product of his will and you may infer that a person of sound mind and discretion is presumed to intend both the natural and the probable consequences of his acts or actions in a given case. But, whether or not you make such an inference or inferences is a matter solely within your discretion.” (Emphasis supplied.)

A charge that every person is presumed to be of sound mind and discretion but that the presumption may be rebutted is not unconstitutionally burden shifting for the simple reason that the state has no evidentiary burden on the issue of the defendant’s sanity. See Adams v. State, 254 Ga. 481 (1) (b), (2) (330 SE2d 869) (1985); Loftin v. State, 180 Ga. App. 613 (2) (349 SE2d 777) (1986). With respect to the remaining portion of the charge, i.e., the portion which actually dealt with criminal intent, the language employed by the court was entirely permissive and thus could not reasonably be interpreted as creating a mandatory presumption with regard to criminal intent, notwithstanding the inappropriate use of the word “presumed.” Consequently, we hold that the charge was not unconstitutionally burden shifting. Accord Heard v. State, 175 Ga. App. 793 (334 SE2d 374) (1985); Freeman v. State, 183 Ga. App. 264 (358 SE2d 623) (1987). Compare Francis v. Franklin, 471 U. S. _(105 SC 1965, 85 LE2d 344) (1985); Williams v. State, 180 Ga. App. 893, 894 (350 SE2d 768) (1986); Boswell v. State, 176 Ga. App. 855 (1) (338 SE2d 62) (1985). However, we recommend that henceforth the trial court employ the language set forth in the Suggested Pattern Jury Instructions Prepared by the Council of Superior Court Judges of Georgia, Vol. II (Criminal Cases) at p. 25 (1984 ed.), as follows: “You may infer in this case, if you wish to do so, that the acts of a person of sound mind and discretion are the product of his will; and you may infer, if you wish to do so, that a person of sound mind and discretion intends the natural and probable consequences of his acts. Whether you make any such inference or inferences in this case is a matter solely within the discretion of the jury.”

Decided June 23, 1987

Rehearing denied July 13, 1987

Gregory Homer, for appellant.

H. Lamar Cole, District Attorney, for appellee.

4. The appellant contends that the trial court erred in failing to instruct the jury on his sole defense, which was that the victim had voluntarily and of her own free will authorized him to manage her affairs and attend to her needs. Pretermitting whether such a showing on his part would have set forth an affirmative defense to the charge of false imprisonment, it clearly did not set forth a defense to the charges of theft and reckless endangerment. Consequently, the court’s failure to give such a charge establishes no ground for reversal of these two convictions.

Judgment affirmed in part and reversed in part.

Carley and Benham, JJ., concur.


author: Beasley, Judge. Benham, Judge,

text:
    73668.
    SHARP v. THE STATE.
    (360 SE2d 50)
   Beasley, Judge.

1. Appellant was convicted on February 19, 1986, of cruelty to children (OCGA § 16-5-70), and sentenced on May 15. The court allowed her to file an extraordinary motion for new trial (OCGA § 5-5-41), but after conducting a hearing, denied the motion in an order filed September 17. On September 9, appellant filed a notice of appeal from the judgment of conviction and sentence in which she stated that the “motion for new trial was filed and overruled ... on or about August 28, 1986.”

Thus the notice of appeal was filed prematurely. We review the case on its merits rather than dismiss it, in accordance with Gillen v. Bostick, 234 Ga. 308 (1) (215 SE2d 676) (1975) and Steele v. Cincinnati Ins. Co., 252 Ga. 58 (311 SE2d 470) (1984). The same approach was compelled in LeGallienne v. State, 180 Ga. App. 108 (3) (348 SE2d 471) (1986). But we do so reluctantly because the procedure followed was erroneous and not in accordance with statutory command. While it is true that at the outset of the Appellate Practice Act the legislature stated that it is to be “liberally construed,” it expressly provided a caveat: “except as may be specifically referred to in this article.” OCGA § 5-6-30.

“This article” includes OCGA § 5-6-38, which clearly and unambiguously sets forth that “notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of; ...” Proper and timely filing of the notice of appeal has been considered so significant that it is required to confer jurisdiction. Barthell v. State, 174 Ga. App. 459 (330 SE2d 180) (1985). That itself was recognized in Gillen, supra, which superseded the statute and modified the concept to some degree, and in Hester v. State, 242 Ga. 173, 175 (249 SE2d 547) (1978). The legislature’s policy of allowing “liberal construction” by the courts does not give license to the courts to change the meaning of what is plain. Mullins v. First Gen. Ins. Co., 253 Ga. 486, 487 (322 SE2d 265) (1984); Anderson v. Cooper, 214 Ga. 164, 166 (104 SE2d 90) (1958).

Nor is there any reason to depart from what is mandated. Orderly procedure is part of due process. It is elementary that an oral order is not final nor appealable until and unless it is reduced to writing, signed by the judge, and filed with the clerk. OCGA § 5-6-31, and Bishop v. State, 176 Ga. App. 357, 358 (335 SE2d 742) (1985); OCGA § 9-11-58, and Crowell v. State, 234 Ga. 313 (215 SE2d 685) (1975). This constitutes “entry.” Ibid. And it is only an “entered” decision or judgment which is appealable. OCGA § 5-6-38 (a).

Here we have an appeal attempted from a decision “on or about August 28. . . .” That was the date set for hearing on the motion. In so designating the notice of appeal, appellant patently admits not checking whether and when an order was entered, which is a simple matter. It is not “a trap for the inexperienced,” a dark description fashioned by the Fifth Circuit Court of Appeals and apparently adopted by the Georgia Supreme Court in a quotation in Gillen, supra at 311. It is merely a matter of assuring that there is an appeal-able judgment before the whole appeal process is started, alerting the opponent and the court to take appropriate action, and that the judgment or order which appellant wishes appellate review of has been entered and thus is reviewable. For all the appellant here knew when she filed the premature notice of appeal without ascertaining that she then had a right to do so, the matter was still pending before the trial court, which in fact it was. Yet all it took to be procedurally correct, insofar as the statute is concerned, was to follow the straightforward, one-step procedure set out in OCGA § 5-6-38, which has been the law for over twenty years.

The result, if appellate procedure were to be correctly followed, would be to leave in abeyance an appeal and review a later-entered order on the motion for new trial. Filing the notice of appeal acts as supersedeas in certain cases, OCGA § 5-6-45, depriving a trial court of jurisdiction to take further action to enforce and carry into effect the appealed from judgment. Campbell v. Gormley, 185 Ga. 65, 66 (1) (194 SE 177) (1937); Tyree v. Jackson, 226 Ga. 642 (177 SE2d 159) (1970); Arnold v. State, 163 Ga. App. 94, 96 (6) (292 SE2d 891) (1982).

2. Appellant complains that the trial court erred in allowing Dr. Robert Guiness and Jeff Scheible to testify as expert witnesses regarding the victim’s injuries being the result of abuse. Both witnesses were questioned about their training and experience before their opinions were elicited, and appellant did not object. We will not consider these objections raised for the first time on appeal. Mosley v. State, 157 Ga. App. 578 (2) (278 SE2d 154) (1981).

3. Appellant argues that the court erred in allowing a social worker to testify that “in her opinion the spanking and subsequent injuries [the victim] received were done maliciously.” It was appellant who first attempted to elicit from the witness the response about which she now complains. On cross-examination, counsel for appellant asked the witness: “In that regard then, would you say [appellant] acted maliciously?” The witness responded that she did not feel that she was able to answer. On re-direct examination, the state asked a more factually specific question about appellant’s behavior, and the witness responded that in her opinion the specific behavior was malicious. Appellant did not object but now claims prejudice and harm. Having opened the door to the line of inquiry, she is estopped. “Asserted prejudice based upon induced error is impermissible. [Cit.]” Keri v. State, 179 Ga. App. 664, 667 (347 SE2d 236) (1986).

4. Appellant contends the trial court erred in allowing evidence of similar transactions in violation of Rule 31.3 of the Uniform Rules" for the Superior Courts (253 Ga. 801) (1985). She also alleges error in the court’s failure to give a limiting instruction regarding the introduction of those transactions.

Appellant admits that she did not object but contends that the rule-provided procedure cannot be waived by a defendant through a failure to object. To the contrary, and thus she cannot raise the issue now. Mosley v. State, supra.

As for the jury instruction, appellant waived her right to complain on appeal when the court asked whether there were any objections to the charge and her counsel responded that there were none. Howard v. State, 173 Ga. App. 585 (2) (327 SE2d 554) (1985). Nor do we find substantial error as defined in OCGA § 5-5-24 (c).

5. Since appellant challenges the overruling of her motion for directed verdict, we have reviewed the record in light of the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Humphrey v. State, 252 Ga. 525 (1) (314 SE2d 436) (1984).

The social worker testified that appellant had admitted spanking the victim with a belt on the occasion in question and beating him on other occasions in the past year. She also testified that the victim, a seven-year-old boy, had described the belt and had drawn a picture of it. Testimony and photographs of the victim’s condition after the beating were in evidence. The victim did not testify, but appellant testified that she had beaten him.

Decided July 13, 1987.

J. Stephen Schuster, for appellant.

Thomas J. Charron, District Attorney, Nicolette S. Templer, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Although appellant contends that the social worker’s testimony was inadmissible hearsay, it was not. Recounting appellant’s statement to her constituted an admission which the jury was authorized to consider. Stephens v. State, 127 Ga. App. 416 (1) (193 SE2d 870) (1972). Moreover, on cross-examination of another witness, appellant’s counsel pursued the same line of questioning, thereby preventing an assertion of error. See Division 2.

The evidence was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of cruelty to children. Consequently, the court did not err in overruling appellant’s motion for a directed verdict of acquittal. OCGA §§ 16-5-70; 17-9-1; Jackson v. Virginia, supra; Daniel v. State, 179 Ga. App. 54 (1) (345 SE2d 143) (1986).

Judgment affirmed.

Birdsong, C. J., Deen, P. J., Banke, P. J., and Corley, J., concur. McMurray, P. J., Pope and Benham, JJ., concur specially. Sognier, J., concurs in the judgment only.

Benham, Judge,

concurring specially.

I concur fully with Divisions 2 through 5 and with Division 1 of the majority opinion insofar as it holds that despite appellant’s premature filing of her notice of appeal, we should review the case on its merits in accordance with Gillen v. Bostick, 234 Ga. 308 (1) (215 SE2d 676) (1975); Steele v. Cincinnati Ins. Co., 252 Ga. 58 (311 SE2d 470) (1984); and LeGallienne v. State, 180 Ga. App. 108 (3) (348 SE2d 471) (1986). However, to maintain the consistency of our opinions with regard to this issue, I would overrule Boothe v. State, 178 Ga. App. 22 (342 SE2d 9) (1986), in which this court dismissed a prematurely filed appeal based on the reasoning overruled in Gillen v. Bostick, supra. The approach of reviewing criminal appeals on the merits whenever possible is also in keeping with the spirit of Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985).

I am authorized to state that Presiding Judge McMurray and Judge Pope join in this special concurrence.


text:
    73753.
    WEST et al. v. NODVIN.
    (359 SE2d 729)
   Pope, Judge.

Appellee Marvin P. Nodvin, an attorney, sued his former clients, appellants Thomas B. and Mildred B. West, for professional fees allegedly owed to Nodvin. The Wests answered and denied any indebtedness. On August 14, 1985 Nodvin filed a motion for summary judgment along with a supporting affidavit. In addition, Nodvin also filed a brief statement of his theory of recovery and material facts as to which no genuine issue remained to be tried, as required by Rule 6.5 of the Uniform Superior Court Rules. The Wests filed no response to this motion.

On December 6, 1985 the trial court denied the motion for summary judgment. Nodvin moved the court to reconsider its order within the time allowed. On December 27, 1985 the Wests filed affidavits opposing Nodvin’s motion for summary judgment. However, no statement of the theory of the case or of material facts in dispute was filed as required by Rule 6.5. In two orders dated February 17, 1986, the trial court vacated its earlier order, struck the affidavit of the Wests and entered summary judgment in favor of Nodvin. The Wests bring this appeal. Held:

1. The Wests argue that their affidavits were timely filed in response to Nodvin’s “renewed or second Motion for Summary Judgment,” and that the trial court erred in striking their affidavit. They point to the case of Bishop v. Stephens, 164 Ga. App. 45 (296 SE2d 250) (1982). We find this argument unpersuasive. The court in Bishop found that the trial court erred when it refused to consider affidavits filed in opposition to a motion for summary judgment. In Bishop, the trial court had granted summary judgment to the defendant when the plaintiffs failed to file any response to the motion and failed to appear at the hearing. Later, the plaintiffs made a motion to set aside the judgment and to hold a new hearing. The court granted the motion and set aside the original order and set a new hearing date. The plaintiffs then filed affidavits in opposition. At the hearing the trial court refused to consider the affidavits because they were not filed on the date of the original hearing. On appeal, this court held that this was error because “[o]nce the trial judge set aside the former order on motion for summary judgment, in the absence of any express order limiting discovery or setting any deadlines, the matter was reopened for all purposes including the subsequent filing of affidavits, depositions, interrogatories, etc., up until ‘prior to the day of hearing.’ ” Bishop at 47. The Wests contend that their opposing affidavits were filed before the time of the hearing and thus complied with the requirements set out in OCGA § 9-11-56 (c) and Bishop.

We find the argument unpersuasive for several reasons. First, there was only one motion for summary judgment followed by a motion to reconsider, and later a motion to strike the affidavits. This situation was not like that in Bishop in which the court wiped the slate clean by first setting aside its initial order with no qualifications, and then setting a new hearing. In the present case, at all times, the Uniform Superior Court Rules were in effect. Rule 6.2 requires opposition response to motions to be filed within thirty days of the service of the motion. Rule 6.5 requires that a response to a motion for summary judgment “shall include a separate, short and concise statement of each of the material facts as to which it is contended there exists a genuine issue to be tried.” As stated in Mills v. J. E. Sharber Oil Co., 181 Ga. App. 81, 82 (351 SE2d 275) (1986), and as is apparent from the holding in Jacobsen v. Muller, 181 Ga. App. 382 (2) (352 SE2d 604) (1986), there is no conflict between these requirements of the Uniform Rules and OCGA § 9-11-56; rather, the requirements are in addition to those set out in the Civil Practice Act. At no time were the Wests in compliance with the Uniform Rules in regard to responding to the motion for summary judgment. This court in Bishop recognized the trial court’s inherent power to regulate its business by limiting discovery or setting deadlines. The reason the trial court erred in striking the affidavits in Bishop was that it reopened the entire matter with no limitation. In the present case there was a continuing limitation in the form of the requirements of the Uniform Rules. In Mills, supra, this court recognized the inherent power of the trial court to enforce the requirements of the Uniform Rules by striking non-conforming or untimely responses to motions. It is apparent from the record that that is what the trial court did here. We agree with the court in Mills that it is not an abuse of discretion for the trial court to strike affidavits in such circumstances. The Uniform Rules can be ignored only at peril to the party doing so. Therefore, we sustain the trial court’s action in striking the affidavits and granting summary judgment to Nodvin.

Decided July 13, 1987.

Edward T. M. Garland, Charles G. Haldi, Jr., for appellants.

Richard B. Maner, for appellee.

2. The Wests argue that the trial court erred in awarding prejudgment interest. We find no merit in this argument. See Considine Co. v. Turner Communications Corp., 155 Ga. App. 911 (6) (273 SE2d 652) (1980).

3. Nodvin’s motion for sanctions for frivolous appeal is hereby denied.

Judgment affirmed.

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

Marvin P. Nodvin, pro se.