text:
    A89A0422.
    STEARNS et al. v. THOMAS.
    (384 SE2d 672)
   Beasley, Judge.

Following the overruling of a motion for new trial, plaintiffs Stearns appeal the judgment entered on the jury’s verdict in favor of defendant doctor Thomas in their suit for the wrongful death of their nineteen-year-old son due to alleged negligent medical treatment.

The young man died at St. Mary’s Hospital from complications from hemorrhaging related to stab wounds received in an altercation at the Waffle House in Madison. He had originally been admitted to Minnie G. Boswell Memorial Hospital and treated by Rhodes. The Stearnses filed separate wrongful death suits against another physician and, in different counties, against the Waffle House and against Boswell Hospital and Rhodes.

Thomas defended on the merits and on the basis that plaintiffs’ damages had been satisfied by settlement of the Waffle House suit. Without objection from plaintiffs, defendant admitted into evidence copies of all the complaints and copies of documents which showed that the Stearnses, as the parents of the deceased, received $32,500 in settlement of the wrongful death suit against the Waffle House and that also Mrs. Stearns, in her capacity as administratrix of her son’s estate, received $2,500 from Waffle House and its insurer in extin-guishment of any claims for medical expenses, conscious pain and suffering, funeral expenses, and any claims for property damage which may have been incurred or sustained by the deceased as a result of his injury and death.

On the defense of satisfaction, the court charged “that a party is not entitled to receive more than one satisfaction in full from all parties involved for damages sustained. Therefore, if you find that the plaintiffs in this case are entitled to recover from the defendant now before the court, then you must determine whether any payments already received from other persons who are not parties to this case amount to full satisfaction for the loss sustained or for the full value of the life of the deceased. In so doing, you should apply the following rules. If the full value of the deceased’s life exceeds the amount already paid to the plaintiffs, then you should deduct from your award a sum equal to the amount already paid to the plaintiffs by third parties who are not a party to this case. If on the other hand, you find that the full value of the deceased’s life is less than or equal to the amount already paid to the plaintiffs, then the plaintiffs would not be entitled to an award or any damages in this case, and you would be obligated to render a verdict in favor of the defendant.”

Plaintiffs excepted to the charge on the basis that it was “confusing and misleading to the jury” but did not explain how or why this was so. The court inquired whether the objection was to the subject matter or the wording, and plaintiffs responded that they challenged both.

The Stearnses’ sole contention on appeal is that the trial court erred by giving a charge to the jury which improperly stated the law applicable to the defense of satisfaction. They maintain that the instruction was error under the facts and as a matter of law because it required the jury to credit prior payments to a third party (adminis-tratrix) as compensation for damages (funeral expenses, etc.) other than those sought in the instant suit (value of life), because it did not properly instruct the jury to allocate such payments, and because it failed to place the burden of proof of a satisfaction upon defendant.

“OCGA § 5-5-24 (a) places the duty on counsel to exercise a high degree of clarity in objecting to charges. [Cit.]” Turner v. Taylor, 179 Ga. App. 574, 576 (4) (346 SE2d 920) (1986). While the statute “ ‘does not demand a formalistic, technically perfect objection,’ ” it does however require “that the grounds of the objection be stated distinctly enough for a ‘ “reasonable” trial judge to understand its nature, enabling him to rule intelligently on the specific point.’ [Cit.]” Green v. Dillard, 176 Ga. App. 574, 576 (2) (337 SE2d 55) (1985), overruled only as to the requirement of a statement of grounds of objection to a trial court’s failure to give a timely written request to charge, Kres v. Winn-Dixie Stores, 183 Ga. App. 854, 856 (3) (360 SE2d 415) (1987). Plaintiffs failed to apprise the trial court of the concern raised here about the instruction so as to permit the court to reconsider and correct the charge to the jury in a manner acceptable to them.

Even if we deem the objection sufficient to raise the present complaints, see Department of Transp. v. Clower, 170 Ga. App. 750 (2) (318 SE2d 161) (1984); Segars v. Printing Svc. Co., 170 Ga. App. 345 (1) (317 SE2d 322) (1984) (non-precedential), the instruction does not succumb to plaintiffs’ ground.

Decided June 22, 1989

Rehearing denied July 19, 1989.

Thomas C. Blaska, for appellants.

First, a substantive charge on satisfaction was demanded by the evidence. In fact, the pre-trial order specified that plaintiffs had filed suit against the Waffle House for their son’s wrongful death, that the suit was dismissed pursuant to payment by Waffle House’s insurer of $32,500 to plaintiffs for a covenant not to sue, and that if the Waffle House and Dr. Thomas were found to be “joint” tortfeasors, Thomas was entitled to a credit against any liability in the amount of $32,500. (The latter precludes the argument that $32,500 covered also some other possible damages for some other possible cause of action.)

Furthermore, contrary to appellants’ contentions on appeal, the nature of the damages for which plaintiffs had already been compensated was undisputed at trial and the documentation of who was compensated, for what, and in what amounts was introduced in evidence. This was without objection even though the $2,500 payment to Mrs. Stearns as administratrix was irrelevant to the claim and damages sought here. The confusion, if any, was attributable not to the charge but to the unobjected-to evidence.

Moreover, the charge did not fail to differentiate the parties receiving compensation and the amount of compensation to be credited to defendant if a plaintiffs’ verdict was rendered. It specified that satisfaction related to payment received only for the full value of the son’s life, by the parties in the instant suit, i.e., the Stearnses in their individual capacities.

Appellants’ argument that the charge was fatally defective because it made no mention that the burden of proof of the affirmative defense was on defendant does not persuade because there was no dispute that plaintiffs had been compensated as claimed by defendant.

Satisfaction was undisputedly an issue. Plaintiffs did not object to evidence of either the same or other earlier compensated damages, did not request their own instruction in regard to prior satisfaction of the same damages, did not articulate with particularity how the court’s charge must be improved, and did not object to a general verdict.

Finally, the court’s charge taken as a whole, see City of Atlanta v. Hadjisimos, 168 Ga. App. 840, 842 (5) (310 SE2d 570) (1983), was not misleading or confusing and provides no basis for reversal of the trial court’s judgment.

Judgment affirmed.

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

James E. Brim III, for appellee.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A89A0551.
    HOSPITAL AUTHORITY OF FULTON COUNTY v. McDANIEL.
    (385 SE2d 8)
   Pope, Judge.

This medical malpractice case was filed originally in March 1985. In June 1988, the original action was dismissed without prejudice for failure of counsel for plaintiffs, the McDaniels, to appear at a peremptory calendar call. Within the six-month period allowed by OCGA § 9-2-61, the McDaniels refiled the action. The renewed complaint specifically incorporated the discovery taken in the previously dismissed action, including the deposition of the McDaniels’ expert, David H. Sherman, M.D. However, the McDaniels failed to attach the required affidavit pursuant to OCGA § 9-11-9.1 to the renewed complaint. Defendant/Appellant Northside moved to dismiss the renewed complaint for failure to file the required affidavit. The McDaniels then amended their complaint to include the affidavit of Dr. Sherman. The trial court denied Northside’s motion and this interlocutory appeal followed. Held:

We find that this case is controlled by the holding in St. Joseph’s Hosp. v. Nease, 259 Ga. 153 (377 SE2d 847) (1989). In Nease, the Supreme Court held that failure to file the affidavit required in a medical malpractice case is an amendable defect curable under Rule 15 (a) of the Civil Practice Act in a case in which the action is renewed and the plaintiff fails to attach an affidavit that had been obtained in the previous suit. “Under the statute, failure to obtain the affidavit might be a fatal defect. Failure to file it with the complaint is an amendable defect because ‘Is not the chief object of amendment the correction of mistakes?’ [Cit.]” Nease at 155.

The situation in the present case is similar. As in Nease, the plaintiffs in this case withstood a motion for summary judgment in the previously filed action. The testimony of the expert in the original action in Nease was in the form of an affidavit; in the present case, the expert’s testimony was in the form of a deposition. By incorporating the discovery from the original action in the complaint for the renewed action, the McDaniels complied with the spirit, if not the letter, of OCGA § 9-11-9.1. The purpose of the Code requirement is to ensure a substantial basis for actions against professionals. Clearly, such a basis existed in the present case, and the trial court properly allowed the amendment.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.

Decided July 6, 1989

Rehearing denied July 19, 1989

Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, Ronald R. Coleman, Jr., for appellant.

Shuford & Associates, E. Graydon Shuford, Allen & Ballard, Hunter S. Allen, Jr., for appellee.


author: Beasley, Judge. McMurray, Presiding Judge,

text:
    A89A0534.
    CLEMONS et al. v. ATLANTA NEUROLOGICAL INSTITUTE, P.C.
    (384 SE2d 881)
   Beasley, Judge.

Mr. and Mrs. Clemons sued Atlanta Neurological Institute, P.C., alleging that Mr. Clemons sustained injuries due to the negligence of the doctor, its agent, in failing to protect Mr. Clemons from falling during a cervical myelogram. The Institute denied the material allegations, and the jury found in its favor. A motion for new trial was denied, and this appeal followed.

1. Plaintiffs contend the court erred in giving defendant’s fourth request to charge.

(a) Appellee makes the threshold assertion that plaintiffs waived objection made during the charge conference by not excepting to the charge after the jury was instructed.

We are not fully persuaded that it was not waived. OCGA § 5-5-24 (a); Sims v. Johnson, 185 Ga. App. 720, 721 (365 SE2d 532) (1988); Hurst v. J. P. Colley Contractors, 167 Ga. App. 56, 57 (2) (306 SE2d 54) (1983).

Moreover, the nature of the objection raised here is not entirely the same as that made at the charge conference. “[T]he specific grounds for objection to a charge control the extent of the appellate review of the charge.” Hurst, supra at 58. The complaint made here is that the charge allowed a lesser standard of care to be applied than the law requires, and that if abstractly correct, it was not adjusted to the evidence. The objection during the charge conference was only that it spoke of an unintended result and the myelogram did produce its intended result, that is, x-rays. This refers only to the latter ground; the former was not raised below.

Nevertheless, we will address the merits, because the trial court stated after the jury charge that he incorporated by reference the conference objections and rulings, and after recharge again took blanket note of the previous “exceptions.” By its “incorporation” statement, made unsolicited at a time when an invitation to state exceptions should have been extended, the court implied that it assumed the parties would raise exceptions similar to the objections voiced during charge conference, and further that it rejected them. Thus the court created an awkward situation for which the party ought not be penalized by our refusal to address the substantive claim of error.

However, the procedure followed by the trial judge is not approved, because “ ‘[o]ne purpose of [requiring a party to reassert his objections to a given charge] is to afford the trial judge an opportunity to correct any errors in his instructions without the necessity of an appeal.’ Fleet Transport Co. v. Cooper, 126 Ga. App. 360, 361 (190 SE2d 629).” Hurst, supra at 58. Reflection after the charge is given allows reconsideration in a different context and also serves to articulate plainly the legal points and rulings which are later to be reviewed.

This case is distinguishable from Hurst in that there is a full record of the preinstruction charge conference and we are able to review plaintiffs’ specific objection.

(b) The charge at issue is that “[a] doctor is not an insurer and an unintended result does not raise even an inference of negligence.” The law does not require a retrial on account of this one sentence found in the instructions to the jury at the end of this six-day trial.

The doctor, defendant’s agent, testified on cross-examination during plaintiffs’ case-in-chief that Frank Clemons fainted and slumped to the floor during a myelogram procedure which the doctor was conducting. The table on which Clemons was lying with the SV2-inch needle inserted in his back pointing towards his feet had been slowly tilted vertically to allow the dye to run down into the sac. This was done because the dye had not dispersed while the table was at a 45-degree angle for some minutes. The table had a 6”-wide flat platform at the foot, and the patient, who was facing the table, was uncomfortable since he could not get his foot on the platform. The doctor permitted him to step back off the platform, as he indicated he wanted to do so, and lean against the table, remaining vertical. It is essential that he be comfortable during the procedure. It does not matter whether the patient stands on the platform or on the floor.

At least one technician was at his side, holding his arm. There may have been one on his other side, too. The doctor stepped back to look at the x-ray screen and was observing it when he heard a noise. He turned around and saw the patient slumped sideways, in the arms of one technician, who was then kneeling. Another technician was also kneeling over the patient, who had fainted after about two minutes of standing.

When he saw that the patient had fainted, the doctor was frightened because fainting is serious as it could indicate a heart attack or severe blood pressure. The doctor immediately pulled the needle out altogether and the three got the patient back lying flat on the table, where the doctor shook him and he regained consciousness after about four or five seconds. While the patient was standing and before he fainted, the doctor had twice asked him if he felt well, and the patient had both times said he did and nodded “yes.” The doctor looked at him each time and observed that he looked perfectly alert and in good control of his faculties.

The doctor testified that he had done close to 3,000 myelograms and that of these, three patients had fainted, Mr. Clemons being the second.

In its charge to the jury, the court fully and clearly instructed the jury on the duty of a medical practitioner, the standard of care required, and how it was to be measured. It instructed them how to apply the standard and reach a verdict as to liability or the absence of the same. It instructed that the standard is presumed to have been met but is rebuttable. It instructed that a rebuttable presumption is “merely a circumstantial inference selected by the law as the most reasonable . . . rational hypothesis . . . .” It explained how presumptions are to be employed.

The allegedly offensive instruction is found in the above-described context, following the sentence first quoted:

“Ladies and gentlemen of the jury, I charge you that it is the general rule in this state that laymen, even jurors and courts, are not permitted to say what is proper medical and surgical treatment, for that is a medical question. A doctor is not an insurer and an unintended result does not raise even an inference of negligence.”

This last sentence cannot be examined in isolation. “It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. [Cits.]” Williams v. State, 249 Ga. 822, 825 (3) (295 SE2d 293) (1982). “It is well settled that the mere fact that the trial judge interjects into his charge some statement inapplicable to the issues of the case does not always require a reversal. Where such an instruction has been given, the reviewing court looks to the whole record to see if the complaining party in fact suffered prejudice. If so, a new trial will result; otherwise not.” Bonita Theatre v. Bridges, 31 Ga. App. 798, 806 (122 SE 255) (1924), applied in Blount v. Moore, 159 Ga. App. 80, 82-83 (1) (282 SE2d 720) (1981).

Even when due process in the trial of a criminal case is at stake, as perceived under the Federal Constitution, the challenger would have to show that “the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, 414 U. S. 141, 147 (94 SC 396, 400, 38 LE2d 368) (1973); Francis v. Franklin, 471 U. S. 307, 315 (105 SC 1965, 85 LE2d 344, 354) (1985). Considering the charge as a whole, the issues, and the evidence, the recitation of the latter sentence is not reversible error even if error. OCGA § 9-11-61. As Justice Bleckley graphically expressed the realistic principle in Cherry v. Davis, 59 Ga. 454, 457 (1877), as related to the jury charge: “Wrong directions which do not put the traveler out of his way, furnish no reason for repeating the journey.”

The issue as to liability was whether the doctor failed to exercise due care, skill, and diligence in conducting the procedure so that the patient’s slump or collapse toward the floor, which resulted in partial dislodging of the needle and subsequent injury, was proximately caused thereby. From the evidence, it would be obvious to a rational jury that dislodging the needle was not intended; it would be obvious that the patient’s fainting or his slumping was not intended; it would be obvious that the medical complications which followed were not intended.

The court merely told the jury that the injuries allegedly resulting from the manner in which the doctor managed the patient’s body during the medical procedure could not in themselves raise an inference of negligence, i.e., that an inference of negligence on the part of the doctor cannot be drawn simply from the fact that injury occurred during a medical procedure of which the doctor had charge. It was not in issue whether the doctor intended or did not intend these consequences of his allowing the patient to stand, leaning against the table and unstrapped to it, so the use of the word “unintended” in context would reasonably mean nothing more than “unexpected” or “unanticipated.”

Thus the contentious portion of the targeted sentence is inconsequential. The use of the adjective could not have misled a reasonable jury with respect to the standard of care required of physicians and in particular, this physician, which standard of care had been carefully described to the jury. A reasonable jury would not construe the standard of care erroneously because of the contested charge, or construe the sentence to render askew the standard of care. That is the test to be employed in measuring the validity of contested charges. Parks v. State, 254 Ga. 403, 414 (12) (330 SE2d 686) (1985).

Appellant contends that the sentence does not state a correct principle of law but is only a gratuitous preface to an abstract principle of law. The first assertion is incorrect. Hayes v. Brown, 108 Ga. App. 360, 363 (1) (133 SE2d 102) (1963). See also Landers v. Ga. Baptist Med. Center, 175 Ga. App. 500, 501 (1) (333 SE2d 884) (1985).

Likewise the assertion that the sentence is confusing because not adjusted to the evidence is incorrect, based on the foregoing analysis. The principle that no inference of negligence is raised when injury occurs as a result of medical treatment applies as well when injury occurs during the course of a medical test procedure and the doctor is charged with negligence in regard to the manner he conducted the testing procedure. The practice of medicine is not limited to treatment. Hayes, Landers, and Blount v. Moore, supra, are treatment cases. This is a testing procedure case. The same lack of inference applies.

The court in Blount did not discuss or rule on the charge here at issue. The challenged charge there was: “ ‘[T]he law recognizes that medicine is an inexact science at best and that all a doctor may do is assist nature in accordance with the present state of medical experience.’ ” Blount, supra at 81. The sentence from Hayes which is challenged here preceded the sentence challenged there, with another sentence in between. The quoted sentence is what the court in Hayes regarded as “a gratuitous preface to the rule that no inference of malpractice may be drawn from unfavorable treatment.” Blount, supra at 82. The instruction now spotlighted helps to communicate, although not as crisply as might have been,, “the principle that a physician is judged by conduct and not by result.” Blount, supra at 83.

It even appears that appellants did not regard the instruction as poisonous to the jury’s deliberations. Assuming that they did not waive the objection, they did not convey to the trial court that they believed this charge was so damaging as to mislead or confuse the jury and cause reversible error all by itself. Otherwise they certainly would have raised this specifically, especially since it was the only part of the charge enumerated as error, and particularly when the court had a second opportunity to eliminate it after the jury asked for a recharge. Either they did not consider it significantly erroneous or they did not consider it significantly harmful. They could have urged that it be corrected on the recharge, having had an hour to reflect further on it before the jury asked for additional instructions.

The oral argument before this court and the appellants’ supplemental brief both confirm this attitude, as all focus is on the remark - of-counsel enumeration, not the sentence in the charge.

2. At the beginning of trial the court directed counsel that “there will be no argument of fact on objections in the presence of the jury.”

On the fourth day of trial, after the jurors were seated, counsel for defendant stated when the judge assumed the bench: “Before we get started, it has come to my attention over the evening recess that a statement was made by one of the jurors that if she got the chance, she was going to hang this doctor, and I would like for the Court to inquire into that and if that statement was made, I would move that the alternate juror be permitted to take her place.”

On appeal, plaintiffs complain that the court erred by failing to give curative instructions to the jury as required by OCGA § 9-10-185, for what plaintiffs regard as a deliberate violation of the court’s earlier admonition and a violation of the Code section as provided and as construed in appellate decisions.

After excusing the jury, the court inquired further into the matter raised and, as counsel for plaintiffs himself requested, called the juror in for examination. Based on what she said, the court concluded that it was her answers given during voir dire (in the presence of all jurors) which was referred to, not some out-of-court statement. The court queried her further to be sure she would be an impartial juror despite her voir dire answers indicating predisposition against doctors. Having been satisfied, the court sent her back to the jury room with the instruction not to discuss the content of the inquiry with the other jurors.

After further discussion with counsel during which plaintiffs registered no complaint about the court’s handling of the matter, the trial resumed after a short recess and plaintiffs called their next witness. After that witness’ entire testimony and the lunch recess, plaintiffs asked the court to instruct the jury so as to remove any prejudice it might have against the juror because of the accusation which defendant’s counsel had raised against her. Counsel acknowledged that he could not then articulate with any precision what he thought would be appropriate and he expressed satisfaction when the court invited him to submit a written request to charge at the charge conference to be held later. No such request was ever presented. Nor did counsel ever ask that defendant’s counsel be rebuked for making the statement in the first place.

No reversible error is indicated. Even if we assume that the failure to give a curative instruction was not waived by plaintiffs’ inaction, Askins v. State, 210 Ga. 532, 533 (81 SE2d 471) (1954), its absence does not manifest an abuse of discretion. Hicks v. State, 196 Ga. 671, 673-674 (2) (27 SE2d 307) (1943). Failing to affirmatively charge the jury, either when the incident occurred or in the final charge, that they were not to hold the accusation against their fellow juror against her in their deliberations or in any way consider her predisposed against defendant, did not contravene OCGA § 9-10-185 or the cases applying it. Its primary objective is to keep the jury from formulating a bias, specifically from being prejudiced by counsel remarks. This relates to the courts’ duty to assure a fair trial and in its first instance is focused on the court’s acting to keep the jury impartial.

Appellants complain that the court failed to sanitize the jury, but the court’s election to leave well enough alone in the absence of a carefully and clearly worded request to charge cannot be deemed in the circumstances to be contrary to law. We cannot say that the court was required as a matter of law to instruct the jurors that they should not question the impartiality of the one who was returned to their number after the inquiry occasioned by defense counsel’s expression of concern. “Unless there is an abuse of discretion concerning the trial court’s ruling on alleged improper juror conduct, the appellate court will not upset the trial judge’s determination. [Cit.]” Hart v. State, 157 Ga. App. 716, 717 (1) (278 SE2d 419) (1981).

The court’s general instructions to the jury specifically pointed out that any verdict returned had to be supported by the evidence produced upon the trial and that as honest, conscientious, fair and impartial jurors, it was to consider the case as instructed by the court. See, in connection with instructions, Harper v. Ga. Southern &c. R. Co., 140 Ga. App. 802 (1) (232 SE2d (118) (1976). Although in that case even more explicit instructions were given concerning the singled-out juror, we are satisfied that the court’s resolution of the problem in this case left the parties with a jury which was impartial in its deliberations.

3. The denial of the motion for new trial on the general grounds, OCGA §§ 5-5-20 and 5-5-21, was not error because the evidence supports the verdict. Johnson v. Wills Mem. Hosp. &c. Home, 178 Ga. App. 459 (343 SE2d 700) (1986).

Judgment affirmed.

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

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as I cannot concur in the majority’s application of inapplicable malpractice standards to the case sub judice. This is a case requiring the use of ordinary and reasonable care to protect the plaintiff husband from any known or reasonably apprehended danger which may be due to his condition.

At the outset, I do not agree with the majority’s position that plaintiffs waived any objection to defendant’s fourth request to charge by failing to except to the charge after the jury was instructed.

During a charge conference, plaintiffs’ counsel objected to defendant’s fourth request to charge stating “again this speaks of an intended result, and here the myelogram procedure produced its intended result, which was in fact taking of x-rays [sic], production of x-rays [sic] that were in fact done.” The trial judge rejected this exception and informed the parties that he intended to give defendant’s fourth request to charge. Later, the trial judge did so charge the jury.

After the jury was charged, the trial judge addressed both plaintiffs’ counsel and defendant’s counsel as follows: “All right, gentlemen. Of course, we had our charge conference in some detail earlier this afternoon. I incorporate by reference at this point all of your exceptions to the rulings of the Court at that time. Are there any matters that we did not take up at that time that you would like to point out; that is, is there anything that I charged that I said I wouldn’t charge, is there anything that I didn’t charge that I said I would charge, is there anything that I said I would charge in a certain way that I didn’t charge that way, and is there anything that I did charge that we didn’t discuss that you except to. . . .?” (Emphasis supplied.) Plaintiffs’ counsel did not except to the giving of defendant’s fourth request to charge, but he did make an observation relating to the claims of plaintiffs being made separate if there was an award in favor of plaintiffs, prefaced by the following remark: “Your Honor, only thing we haven’t addressed is . . . .” Plaintiffs’ counsel had previously objected to defendant’s fourth request to charge at the charge conference conducted by the trial court prior to the charging of the jury.

After a weekend recess, the jury returned to deliberate and asked the court the following question: “Could we the jury have a copy of the charges to the jury?” The trial judge responded by instructing the jury on all aspects of its previous charge, excluding only the charge on damages. After these instructions, the court inquired of counsel, “Other than previous exceptions . . . any others for the record?” (Emphasis supplied.) Plaintiffs’ counsel did not make exceptions to the recharge of defendant’s fourth request to charge which was previously objected to at the charge conference.

In Sims v. Johnson, 185 Ga. App. 720 (365 SE2d 532), this court held that “ ‘[a]n objection to an instruction which is made during a charge conference, but which is not made or reiterated following the giving of the charge, fails to preserve the matter for review by an appellate court. The requirement is that there be a proper objection after the court instructed the jury and before the jury returned the verdict. (A)n objection made only at a charge conference is insufficient to preserve an issue for appeal . . . .’ (Citations and punctuation omitted.) Brown v. Sims, 174 Ga. App. 243, 244 (329 SE2d 523) (1985); Caudell v. Sargent, 118 Ga. App. 405 (164 SE2d 148) (1968).” Id. at 720, 721. In the case sub judice, plaintiffs’ counsel did not reiterate his charge conference objections after the jury was instructed. He failed to do so only upon the trial judge’s direction (“Other than previous objections . . .”) and after the trial judge incorporated all prior objections to the charges by reference. Nonetheless, defendant cites Hurst v. J. P. Colley Contractors, 167 Ga. App. 56, 57 (2) (306 SE2d 54), arguing that reference to an objection made during a preinstruction charge conference after the jury has been instructed is insufficient to preserve the record for appeal.

In Hurst v. J. P. Colley Contractors, supra, the appellants in that case made a general objection to the trial court’s charge on the doctrine of “last clear chance.” The colloquy that followed the objection demonstrated that the trial judge understood the appellants’ complaint, but did not want to hear a more specific objection because the issue had been discussed during an off-the-record charge conference. On appeal, appellee argued that appellants’ general objection was insufficient to preserve the issue for appeal. This court agreed and did not address the merits, reasoning that the record is insufficient to determine “whether the objections to the language of the instruction urged on appeal were brought to the attention of the trial court.” Hurst v. J. P. Colley Contractors, 167 Ga. App. 56, 58 (2), 58, supra. The case sub judice is distinguishable from Hurst v. J. P. Colley Contractors, supra, in that here we have a full record of the preinstruction charge conference and we are able to review plaintiffs’ specific objection to defendant’s fourth request to charge. From this perspective, I view the trial judge’s instruction to counsel, in the case sub judice, not to reiterate any prior objections to the charge as an exception to the rule that counsel must reiterate all objections to the charge after the jury has been instructed. To say otherwise, would penalize the complaining party for. obeying the trial court’s order.

Further, I do not subscribe to the majority’s position that the trial court did not err in charging the jury that “[a] doctor is not an insurer and an unintended result does not raise even an inference of negligence.”

Defendant’s fourth request to charge appears to reflect the legal principle upon which is founded the rule of law that malpractice may not be inferred from an unfavorable result of a medical procedure. In Blount v. Moore, 159 Ga. App. 80 (1) (282 SE2d 720), a majority of this court characterized the language of a charge which reflected the same principle as argumentative, inappropriate and misleading and held that, while such a rule is appropriate to an appellate decision reviewing evidence in a malpractice case, it should not be included as a charge in a malpractice case. The majority in Blount reasoned that such a charge “could not possibly enlighten a jury of fact finders on the objective standard of care required of a physician.” Blount v. Moore, 159 Ga. App. 80 (1), 82, supra. See Jackson v. Rodriquez, 173 Ga. App. 211, 213 (3) (325 SE2d 857); Hyles v. Cockrill, 169 Ga. App. 132, 133 (3) (312 SE2d 124); Sullivan v. Henry, 160 Ga. App. 791, 798 (1), 800, 801 (287 SE2d 652); and Hawkins v. Greenberg, 159 Ga. App. 302 (2), 309, 310 (283 SE2d 301). In the case sub judice, the language of defendant’s fourth request to charge is not only susceptible to being misunderstood as imposing a lesser standard of care for physicians, it is confusing because it is not adjusted to the evidence.

Decided June 28, 1989

Rehearing denied July 20, 1989

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

Downey, Cleveland & Parker, Lynn A. Downey, Russell B. Davis, for appellee.

“ ‘A charge which is not applicable to the facts should not be given. Collins v. Dixon, 72 Ga. 475 (2) (1884).’ Todd v. State, 149 Ga. App. 574, 575 (2) (254 SE2d 894).” Studdard v. State, 185 Ga. App. 319 (1), 320 (363 SE2d 837). In the case sub judice, plaintiffs are not complaining of the result of the cervical myelogram procedure, they are complaining of an injury which allegedly occurred as a result of the doctor’s (agent of the defendant) negligence in protecting Mr. Clemons from injury during the myelogram procedure. In other words, defendant’s fourth request to charge was a correct abstract principle of law which confused the real issue in the case sub judice, i.e., whether under the particular facts and circumstances the doctor (defendant’s agent) exercised ordinary and reasonable care in looking after Mr. Clemons while he was charged with Mr. Clemons’ care. See Cobb County &c. Hosp. Auth. v. Crumbley, 179 Ga. App. 896, 898 (348 SE2d 49). Since it is likely that the trial court’s instruction misled and confused the jury with regard to the duty of care required of the doctor (defendant’s agent) and since the charge was not adjusted to the evidence, it is my view that a new trial is required. Compare Blount v. Moore, 159 Ga. App. 80 (1), 83, supra.

In light of the above and the needed retrial, I find it unnecessary to express my views relating to plaintiffs’ remaining enumerations. More particularly, it is unnecessary to address the error cited in plaintiffs’ third enumeration, as the same would be unlikely to arise upon a retrial.

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

       “[A] judgment... is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment. . . .” Cupp, supra.


author: Beasley, Judge.

text:
    A89A0604.
    WOODY v. BEARDEN et al.
    (385 SE2d 795)
   Beasley, Judge.

Woody, a homeowner, brought an action for damages against a home improvement contractor and the City of Atlanta rehabilitation inspectors, alleging that defendants had breached duties arising out of the contract for repair. Defendants answered and the case was placed twenty-first on the thirty-four case trial calendar for the week of April 18, 1988. At the call of the calendar plaintiff failed to appear and defendants moved to dismiss for want of prosecution. The motion was granted and plaintiff moved to vacate the order. Appeal is from denial of the motion.

Decided July 5, 1989

Rehearing denied July 20, 1989.

King, Morriss, Talansky & Witcher, Joseph H. King, Jr., for appellant.

J. C. Maddox, June D. Green, Bernard R. Thomas, Sr.i Marva Jones Brooks, for appellees.

Plaintiff asserts that in an effort to comply with USCR 8.4 his counsel called the calendar clerk during the call of the calendar and left a message that he could be ready for trial on two hours’ notice. He contends that this was sufficient to avoid dismissal as provided in USCR 14, upon the holdings of Broadwater v. City of Danville, 184 Ga. App. 886, 888 (2) (363 SE2d 316) (1987), and Fulton v. State of Ga., 183 Ga. App. 570, 572 (359 SE2d 726) (1987). We cannot reach the merits, however, because the assertions are not supported by the record. Broadwater, supra at 889 (3).

Judgment affirmed.

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


text:
    A89A0631.
    GLISSON v. THE STATE.
    (385 SE2d 4)
   Beasley, Judge.

Defendant appeals the overruling of his plea of former jeopardy. Defendant’s previous convictions for incest and cruelty to a child were reversed by this court in Glisson v. State, 188 Ga. App. 152 (372 SE2d 462) (1988).

The sole issue on this appeal is whether the State’s attempt to retry defendant for cruelty to a child violates the proscription against double jeopardy contained in the Fifth Amendment to the United States Constitution and the statutory prohibition contained in OCGA § 16-1-8 (d) (2). Defendant has not asserted any right to the protection of the Georgia Constitution, Art. I, Sec. I, Par. XVIII, so we do not consider its independent application.

We earlier reversed the conviction for cruelty to a child on the basis that the testimony of certain witnesses as to what the victim told them about the incidents in question was inadmissible hearsay. The victim, who was sixteen at the time of trial, had refused to testify on the ground her testimony would tend to bring disgrace or public contempt upon her family. See OCGA § 24-9-27 (a). She repeated her refusal despite the trial court’s ruling that she must testify. This court held that the victim’s testimony was compellable and that a result of the failure to require the witness to give evidence was “that it allowed inadmissible evidence to be presented to the jury, and admissible evidence was shielded from its consideration.” Glisson, supra at 154 (2).

Having reversed the trial court, it was deemed “unnecessary to address appellant’s remaining enumerations of error.” Id. at 155 (3). One was that the evidence was not sufficient to sustain the guilty verdict. Defendant now contends that without the inadmissible hearsay testimony the trial evidence failed to sustain the verdict. He also urges that the effect of our prior decision was that the evidence was insufficient.

The Double Jeopardy Clause of the Fifth Amendment prohibits retrial of a defendant whose prior conviction on the same charge has been reversed for lack of sufficient evidence to sustain the jury’s verdict. Greene v. Massey, 437 U. S. 19 (98 SC 2151, 57 LE2d 15) (1978); Burks v. United States, 437 U. S. 1 (98 SC 2141, 57 LE2d 1) (1978); Hall v. State, 244 Ga. 86, 93 (5) (259 SE2d 41) (1979). Our Code provision provides similarly. Bethay v. State, 235 Ga. 371, 375 (1) (219 SE2d 743) (1975); Marchman v. State, 234 Ga. 40, 41 (215 SE2d 467) (1975). In making a determination as to the sufficiency of the evidence the appellate court considers the evidence in its entirety, including, not excluding, that admitted on trial but found inadmissible on appeal. Hall, supra at 93.

An important consideration is the distinction between a reversal based upon procedural or trial error and one based upon the insufficiency of the evidence. Williams v. State, 258 Ga. 305, 311 (1) (369 SE2d 232) (1988). Greene and Burks, supra; United States v. Tateo, 377 U. S. 463, 466 (84 SC 1587, 12 LE2d 448) (1964). The improper admission of inadmissible evidence is an example of trial error, in which case retrial is not precluded. Osborne v. State, 166 Ga. App. 439, 440 (304 SE2d 316) (1983). Failure to give a proper charge is another example. Price v. State, 187 Ga. App. 239 (370 SE2d 6) (1988). Of course, if the evidence is insufficient even with the erroneously admitted inadmissible evidence, double jeopardy bars retrial under the Fifth Amendment. Hall, supra at 94, fn. 6.

As the Supreme Court reiterated in Lockhart v. Nelson, _ U. S. _ (_ SC _ , _ LE2d _, 57 USLW 4007, 4008) (1988), “eviden-tiary insufficiency ... is in effect a finding ‘that the government has failed to prove its case’ against the defendant, [whereas] ordinary ‘trial errors’ as the ‘incorrect receipt or rejection of evidence implies nothing with respect to the guilt or innocence of the defendant,’ but is simply ‘a determination that [he] has been convicted through a judicial process which is defective in some fundamental respect.’ ” Burks, supra at 15. Or as succinctly put in Tibbs v. Florida, 457 U. S. 31, 41 (102 SC 2211, 72 LE2d 652) (1982): “A reversal based on the insufficiency of the evidence . . . means that no rational factfinder could have voted to convict the defendant.”

Decided July 3, 1989

Rehearing denied July 20, 1989

John R. Calhoun, Kenneth D. Kondritzer, W. Paschal Bignault, Penny J. Haas, for appellant.

J. Lane Johnston, District Attorney, for appellee.

It is clear from this court’s former opinion that the majority neither intended to nor actually did pass upon the sufficiency of the evidence, despite Lewis v. State, 248 Ga. 566 (1) (285 SE2d 179) (1981). Lewis held that this court could not ignore an enumeration of error raising the general grounds when it is contended that the evidence is insufficient to support the verdict even prior to the exclusion of any improperly admitted evidence. Accord Wilson v. State, 254 Ga. 473, 475 (1) (330 SE2d 364) (1985); compare Price, supra at 240.

Although the reversal was not based on the evidence sufficiency but was predicated on trial error, the question remains whether the evidence did indeed support the verdict. The trial transcript reveals circumstantial evidence from which a rational trier of fact could have found defendant guilty beyond a reasonable doubt, considering all of the evidence admitted, including that which was held on appeal to have been erroneously admitted. Lockhart v. Nelson, supra.

Defendant’s plea of double jeopardy was properly denied.

Judgment affirmed.

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

       The statement in State v. Estevez, 232 Ga. 316, 317 (206 SE2d 475) (1974), regarding the reach of state statute beyond that of the double jeopardy provision of the State Constitution is not conclusive for all time, and in all circumstances.


text:
    A89A0693.
    NASH v. JOHNSON.
    (385 SE2d 294)
   Beasley, Judge.

Johnson executed a check in the amount of $7,406.77 in favor of his son-in-law, Mark Baim, his daughter, Sue Baim, and Mark Bairn’s attorney, Nash. The check was written on the corporate account of The Everett Johnson Group, Inc., of which Johnson was secretary. The daughter and son-in-law executed a promissory note in favor of The E. J. Group, Inc., for the amount of the check plus interest to be paid in $100 monthly installments beginning on December 1, 1986, and continuing each month for nine years. The note was witnessed by Johnson as secretary of the corporation.

The Bairns separated on or about March 31, 1987, and were subsequently divorced in September 1987.

On April 6, 1987, Johnson filed a “Memorandum of Complaint” with the State Bar of Georgia against attorney Nash. The complaint alleged: On October 14, 1986, Johnson met with Nash to discuss felony charges against Baim. At that time, Nash said if restitution was made for several outstanding bad checks, it was possible the court’s decision would be more lenient. Nash recommended that Johnson draft a check payable to the Bairns and Nash. Nash stated he would deposit the check for $7,406.77 in his escrow account to make restitution and would refund all funds not used for restitution or court costs of $1,050.

The complaint further alleged that trial was held March 25, 1987, and Baim was placed on probation for eight years and ordered to pay $150 per month restitution for four years. Johnson was told on March 26 that Nash had used the $7,406.77 to pay part of his legal fee for Baim. On March 30, Johnson telephoned Nash who confirmed that the funds had been used as partial payment of his fee. At that point, Johnson requested that the $7,406.77 be refunded to him since the funds had not been used for the intended purpose and Johnson had not been asked if they could be used for any other purpose. Nash responded that Johnson was not his client and that Johnson should discuss it with Baim. Johnson was filing the complaint because his agreement with Nash for the use of the funds had been disregarded.

The complaint was resolved in Nash’s favor.

Three days prior to the filing of the complaint with the State Bar, on April 3, Baim and Nash filed a complaint for declaratory judgment against Johnson stating that Baim paid the money given by Johnson to Nash for settlement of outstanding attorney fees for the handling of various legal matters, that Nash was continuing to handle legal matters for him and as of the date of filing had spent over 125 hours, that Johnson was dissatisfied with application of the loan proceeds to pay the past due legal fees rather than restitution and wished to cancel his loan with Baim and have Nash refund the fees. Plaintiffs demanded judgment declaring that the loan to Baim was not in default, that Nash was not indebted to Johnson in any amount, and for reasonable and necessary attorney fees and costs of the action.

Johnson filed an answer and counterclaim pursuant to Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986) on May 1.

On May 19, The Everett Johnson Group, Inc., filed suit against Nash and Baim for fraud and conversion, of the funds in question. Nash answered and lodged a “counterclaim” against the company, Johnson individually, and attorneys Grubbs and Separk alleging that they wrongfully and unlawfully filed the action and the bar complaints; he asked for $200,000 in punitive damages.

Baim and Nash moved to add Johnson, Separk, and Grubbs as defendants-in-counterclaim. All three filed motions to dismiss or in the alternative for judgment on the pleadings. Nash and Baim moved to dismiss the company’s claims. After a hearing and review of the record, on January 5, 1988, the trial court issued an order denying Bairn’s and Nash’s motions to dismiss, granting the intended defendants-in-counterclaim motions to dismiss or for judgment on the pleadings, and granting the Nash and Baim motions to add the defendants-in-counterclaim only to the extent that they be parties for purposes of the ruling for any motion under OCGA § 9-15-14 and denying such motions to the extent that they sought to add the defendants-in-counterclaim for a Yost v. Torok claim. The order also acknowledged the suggestion of death of Grubbs.

On February 2, 1988, Johnson moved for summary judgment in the declaratory judgment suit and his company moved for the two actions to be consolidated.

On February 15, Nash filed a motion for leave to amend to add The Everett Johnson Group, Inc., as a party defendant to the declaratory judgment suit. On February 22, the trial court entered an order granting permission to file the amended complaint, which order was served on Johnson on March 10. Johnson, on March 16, filed a motion in opposition to Nash’s motion for leave to amend. On April 15, The Everett Johnson Group, Inc., answered the suit claiming, inter alia, that it was never made a party defendant to the action and that process and service of process were insufficient. The company also filed a motion to dismiss on those bases. In two separate orders, on July 1, the court granted the company’s motion to dismiss and denied Johnson summary judgment as a defendant-in-counterclaim in the' company’s fraud and conversion suit.

On November 1, the trial court issued another order vacating and setting aside its July 1 orders due to numerous scrivener’s errors and mistakes. The order went on to grant Johnson’s motion for summary judgment and his company’s motion to dismiss in the declaratory judgment suit and consequently to deny the Baim and Nash motion to add on the basis that it was moot in view of the grants of dismissal and summary judgment. It further ordered that Nash’s motion for summary judgment in the fraud and conversion suit be denied and that the company’s motion to consolidate the two suits was moot.

In one appeal Nash challenges the court’s unfavorable November 1 rulings in both suits.

1. The Declaratory Judgment Action. “In cases of actual controversy, the respective superior courts of this state shall have power, upon petition or other appropriate pleading, to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed; and the declaration shall have the force and effect of a final judgment or decree and be reviewable as such.” OCGA § 9-4-2.

“ ‘A declaratory judgment or decree is one which simply declares the rights of the parties or expresses the opinion of the court on a question of law, without ordering anything to be done; its distinctive characteristic being that the declaration stands by itself, and no exec-utory process follows as of course; and the action is therefore distinguished from other actions in that it does not seek execution or performance from the defendant or opposing party.’ [Cit.]” Lee v. Beneficial Fin. Co. of Ga., 159 Ga. App. 205, 212 (282 SE2d 770) (1981).

Here, under disputed facts, plaintiffs Baim and Nash prayed that the court enter a judgment declaring that the loan to Baim was not in default and that Nash was not indebted to Johnson in any amount. Such is not a situation for declaratory judgment.

Moreover, a “court may refuse to render or enter a declaratory judgment or decree where the judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.” OCGA § 9-4-8. Approximately six weeks after the filing of this “declaratory judgment” action, the fraud and conversion suit involving different parties and claims but the same factual dispute was under way. Thus, a determination of the declaratory judgment would not extinguish the controversy.

The trial court was authorized to grant summary judgment to Johnson, to grant dismissal to the corporation, and to deny because of mootness plaintiffs’ motion to add on the basis that the complaint was not appropriate for declaratory judgment.

Even if the complaint was appropriate for the declaratory relief sought, Johnson was still entitled to summary judgment on the evidence of record.

Johnson so moved on the basis that the evidence showed the money was loaned by the corporation and not by him individually. His affidavit stated as much. Appended to it were a copy of the check drawn on the corporate account but signed by Johnson without additional language that he was signing in a representative capacity, and a copy of the promissory note in favor of the corporation for the amount of the check. OCGA § 11-3-403 (2) (b) permits parol evidence (here reduced to writing in the form of the affidavit) in litigation between the immediate parties to prove signature by the agent in his representative capacity. Kramer v. Johnson, 121 Ga. App. 848, 849 (2) (176 SE2d 108) (1970).

The only arguable attempt at evidentiary rebuttal was an affidavit by Bairn made during the course of the divorce which was appended to plaintiffs’ brief in opposition to the summary judgment. The Bairn affidavit stated that he had borrowed the sum from his father-in-law to help resolve pending legal matters. There was no statement whatsoever that the check was a personal loan from the father-in-law rather than a corporate loan via the father-in-law nor anything else to counter Johnson’s showing. Neither, contrary to appellant’s contention, was there any evidence to allow piercing of the corporate veil.

The trial court did not err in ending the declaratory judgment action.

2. The fraud and conversion suit. Johnson and the company move to dismiss this portion of the appeal dealing with the denial of summary judgment to Nash on the basis that the suit is separate and distinct from the declaratory judgment action and that as such the denial of summary judgment was not subject to review by direct appeal along with the final rulings in the declaratory judgment case.

Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) (271 SE2d 199) (1980), held that when a “direct appeal is taken, any other judgments, rulings or orders rendered in the case and which may affect the proceedings below may be raised on appeal and reviewed and determined by the appellate court.” (Emphasis supplied.)

Although the appealed-from rulings were contained in one order, the denial of summary judgment was rendered in an action distinct and apart from the declaratory judgment suit in which the directly appealable ruling was rendered. In fact, the motion to consolidate the actions below was opposed. Furthermore, the denial of summary judgment to Nash in the fraud and conversion suit would not affect the propriety of the court’s determinations in the declaratory judgment action. Thus, the denial of summary judgment is not “tied to the appeal of an appealable order or judgment.” Id.

It cannot be reviewed in this appeal. Compare Dairyland Ins. Co. v. McIntosh, 171 Ga. App. 782, 783 (1) (321 SE2d 110) (1984); Alexander Underwriters v. Ins. Agencies of Ga., 156 Ga. App. 560, 563 (3) (275 SE2d 138) (1980).

Appellees’ motion to dismiss the appeal in part is granted.

Decided June 22, 1989

Rehearing denied July 21, 1989

Charles C. Clay, Mary A. Stearns, for appellant

W. Allen Separk, Adele P. Grubbs, for appellee.

Mark H. Bairn, pro se.

Judgment affirmed in part. Appeal dismissed in part.

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


author: McMurray, Presiding Judge.

text:
    A89A0371.
    A89A0372.
    HAWKINS et al. v. GRADY COUNTY BOARD OF TAX ASSESSORS. STODDARD v. GRADY COUNTY BOARD OF TAX ASSESSORS.
    (385 SE2d 305)
   McMurray, Presiding Judge.

H. L. Stoddard and the Maryann and Otis P. Hawkins Trust (“the Trust”) are property owners and tree farmers in Grady County, Georgia. In 1985 Stoddard returned his 986-acre tract of land for ad valorem taxes at a market value of $112,400 and the Trust returned its 1,806.36-acre tract of land at a market value of $315,900. The county board of tax assessors raised Stoddard’s value to $815,050 and the Trust’s value was raised to $1,431,000. Appeals to the county board of equalization, pursuant to OCGA § 48-5-311 (e), by Stoddard and the Trust resulted in affirmations of the board of tax assessors’ findings. Both Stoddard and the Trust appealed to the superior court, pursuant to OCGA § 48-5-311 (f) (1), and the cases were consolidated and tried at a joint bench trial.

The evidence at trial showed that the Trust and Stoddard relied on the income capitalization method for determining the value of their property. More specifically, both Stoddard and the Trust determined value based primarily on the income producing capabilities of their tree farms. Neither determined value based on what the property would sell for on the open market. On the other hand, the board of tax assessors relied primarily on comparable sales of similarly situated land in Grady County to determine the fair market value of the land. The trial court entered its findings, finding that the fair market value of Stoddard’s land was $815,050 and that the fair market value of the Trust’s land was $1,257,000. Stoddard and the Trust have appealed and filed identical enumerations of error and virtually identical briefs. Held:

I. First, Stoddard and the Trust contend that a $50 per acre “across-the-board” reduction in the value of farm land in Grady County, implemented by the board of tax assessors to reflect declining property values, was “arbitrary.” Assuming, without deciding, that this “across-the-board” reduction was “arbitrary,” we find no harmful error since the record shows that both Stoddard and the Trust benefitted from the reduction. See Stoddard v. Grady County Bd. of Tax Assessors, 190 Ga. App. 445, 447 (2) (379 SE2d 234).

Decided June 29, 1989

Rehearing denied July 21, 1989.

Loftiss, Van Heiningen & Ward, J. Patrick Ward, for appellants.

Porter & Lehman, Thomas L. Lehman, for appellee.

2. In their second, third and fourth enumerations, Stoddard and the Trust argue that the trial court gave “insufficient weight” to their method of appraisal; that the board of tax assessors’ method of appraisal did not reflect the fair market value of their property as timberland and that the trial court gave “too much weight to the ‘highest and best use’ factor and insufficient weight to the ‘existing use’ factor . . . .”

“On appeal, this court considers the sufficiency of the evidence and not its weight. Foster v. Morrison, 177 Ga. App. 250, 252 (6) (339 SE2d 307) (1985).” Hawkins v. Grady County Bd. of Tax Assessors, 180 Ga. App. 834 (3), 835 (350 SE2d 790). In the cases sub judice, the trial court, sitting as a finder of fact, was authorized to accept or reject the opposing methods of appraisal offered by the parties. Further, the board of tax assessors’ evidence showing that its appraisal of the Trust’s land and Stoddard’s land was in line with the value of similarly situated timberland which had sold in the county was sufficient to authorize the trial court’s findings regarding the fair market value of the taxpayer’s property. See OCGA § 48-5-2 (1), and Stoddard v. Grady County Bd. of Tax Assessors, 190 Ga. App. 445 (3), supra.

Judgments affirmed.

Carley, C. J., and Beasley, J., concur.


author: Deen, Presiding Judge.

text:
    A89A1480.
    WHITEHEAD v. CHP, LTD. et al.
    (385 SE2d 124)
   Deen, Presiding Judge.

Billy E. Whitehead, president of Whitehead Roofing & Sheet Metal, Inc., suffered an on-the-job knee injury while on the premises of the Shannon Motor Inn. He received workers’ compensation benefits through his company and filed a negligence action against CHP, the owner of the motel, and Howe D. Whitman, a general partner in CHP.

The trial court granted summary judgment to the defendants, holding that they were Whitehead’s statutory employer under OCGA § 34-9-8 and therefore entitled to tort immunity granted by OCGA § 34-9-11. Whitehead appeals. Held:

At the time Whitehead was injured, CHP was in the process of renovating the Shannon Motor Inn, which it owned. CHP hired Whitehead Roofing as a subcontractor to re-roof a section of the motel. Whitehead also oversaw some of the work done by the iron workers, and acted as foreman of the sheet metal crew. Deposition testimony indicates that CHP acted as general contractor on the project and supervised certain work on the project. On the day Whitehead was injured, he and Whitman had been on the roof reviewing the work. Shortly thereafter they entered a small office to review drawings which were used in conjunction with the work being done. Whitehead tripped over a telephone cord and seriously injured his right knee.

In Wright v. M. D. Hodges Enterprises, 183 Ga. App. 632 (359 SE2d 700) (1987), this court reviewed the criteria by which a statutory employer could be identified and noted that the rule set forth in Modlin v. Black & Decker Mfg. Co., 170 Ga. App. 477 (317 SE2d 255) (1984), created some confusion for the Eleventh Circuit in McCorkle v. United States, 737 F2d 957, 961 (11th Cir. 1984), because that court was unable to determine whether Georgia wanted the “contractor/not a contractor bright line rule” or an “owner plus” or “circumstances of the case” rule. Wright held that it intended to apply both rules. “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 . . . [i]f . . . 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.” Id. at 633.

The evidence shows that CHP was actively involved in the renovation project and Whitehead’s company was employed as a subcontractor by CHP. Both Whitman and Whitehead testified that Howe Whitman and his brother Donald (a limited partner in CHP) had supervisory roles at the construction site. Indeed, at the time Whitehead was injured, the parties were meeting to review and discuss building plans. As in Wright, supra, the project owner not only acted as its own general contractor, but also actively supervised the project. We find no error in the trial court’s ruling.

Judgment affirmed.

Birdsong and Benham, JJ., concur.

Decided July 13, 1989

Rehearing denied July 21, 1989

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

Smith, Gambrell & Russell, Jane C. Carr, Matthew S. Coles, David A. Handley, for appellees.


text:
    A89A0100.
    A89A0101.
    CALDWELL et al. v. STATE FARM FIRE & CASUALTY INSURANCE COMPANY. SHANE v. STATE FARM FIRE & CASUALTY INSURANCE COMPANY.
    (385 SE2d 97)
   Pope, Judge.

In March 1985, appellant Tom Shane, then 19, was home from college on spring break. On March 9, 1985, he had some friends over to watch movies and drink beer. Around midnight, Matt Berry, a younger friend of Tom Shane’s, dropped by accompanied by four other teens, Chad Moss and three girls. Everyone visited for a while and Matt asked Tom if he could have some beer. He told Tom that he and his friends had drunk a case of beer already that night. Tom gave them four beers. Chad Moss was the driver of the car for the group. He appeared drunk to Tom Shane and he tried to get the group to stay and spend the night. However, they left and shortly thereafter there was an accident in which Stephanie Caldwell, the minor daughter of appellants Caldwell and one of the teens in the car driven by Chad Moss, was injured. Tom Shane learned of this accident the next day and questioned Matt Berry about whether the group had drunk any of the beer he had given them. He learned that one beer had been opened and passed around. At the time of these events, Tom Shane’s parents were out of town and knew nothing about them. Tom Shane did not tell them about the events or accident until the end of July 1985 when his mother learned from a newspaper article that her son was a named defendant in a lawsuit arising out of the incident. Tom Shane received the summons for the suit the day after his mother read the article. At that time, the family discussed whether to notify their insurance company, State Farm Fire & Casualty Insurance Company (State Farm), but they decided to see an attorney first. Their homeowners’ policy with State Farm required them to give written notice to the company or its agent of any accident or occurrence as soon as “practicable.”

After the Shanes learned of the events and the lawsuit against their son, they consulted an attorney. David Shane, Tom’s father, tes-tilled on deposition that he did not want to report the incident to State Farm until he was sure it was covered because in his experience his rates went up whenever an insurance company got involved. At a second meeting with the attorney in September or October, the Shanes decided on the advice of the attorney to continue without notice to State Farm in hopes that Tom Shane would be dismissed from the suit. The attorney was retained to represent Tom Shane in the lawsuit and filed defensive pleadings and answered discovery requests. In January or February 1986, with scheduled depositions on the horizon, David Shane notified his State Farm agent of the incident. In March 1986 State Farm had Sara Shane sign a non-waiver request for claim service and non-waiver of rights, and also took a recorded statement relating to the coverage question. State Farm took similar recorded statements from David Shane and Tom Shane in early March. This declaratory judgment was filed May 14, 1986.

The trial court granted summary judgment to State Farm holding that the delay of the Shanes in notifying State Farm violated a condition precedent in the policy that notice of an accident or occurrence be given as soon as practicable.

1. Appellants argue that State Farm is precluded from pursuing this action because it did not obtain a valid reservation of rights and did not file its declaratory judgment action immediately. We disagree. Even if we view the recorded statements as deficient bilateral reservations of rights, they, along with the non-waiver of rights form signed by Sara Shane, put the insureds on notice concerning State Farm’s questions about coverage and State Farm moved promptly to file its declaratory judgment. In Kelly v. Lloyd’s of London, 255 Ga. 291 (336 SE2d 772) (1985), the Supreme Court explained that in determining whether an insurance company has filed a declaratory judgment in a timely manner “the crucial inquiry is whether the rights of the insured have been adequately protected.” Id. at 293-294. Here, Tom Shane was represented already by an attorney, had filed defensive pleadings, answered interrogatories and had been deposed. As stated by the court in Kelly, supra, the rule is based on fairness. In this situation, we find that the declaratory judgment action was filed in a timely manner that was fair to the insured.

2. We turn to the question of notice. “Generally, whether an insured’s notice to an insurer is ‘as soon as practicable’ is a question of fact for a jury. [Cit.]” Richmond v. Ga. Farm &c. Ins. Co., 140 Ga. App. 215, 220 (231 SE2d 245) (1976). “Under all of the facts and circumstances of a particular case it may be found that an insured’s delay in giving notice of an accident to his insurer was unjustified and unreasonable. In such event, on a motion for summary judgment, the court may rule on the question as a matter of law.” Id. at 220-221. “The purpose of the notice provision ... is to enable an insurer to investigate promptly the facts surrounding the occurrence while they are still fresh and the witnesses are still available, to prepare for a defense of the action, and, in a proper case, to determine the feasibility of settlement of the claim.” Id. at 221.

Decided July 10, 1989

Rehearing denied July 24, 1989

Boyce, Thompson & O’Brien, Peter F. Boyce, J. Patrick O’Brien, William M. Coolidge III, for appellants (case no. A89A0100).

The facts show that, at the earliest, the Shanes notified State Farm of the incident some six months after Tom Shane was served a summons, and that Tom Shane knew of the incident for approximately nine to ten months before State Farm was notified. The reason for the delay was a fear of a rate increase. The record is clear that State Farm received no notice from anyone of the incident before David Shane provided notice.

State Farm is not required to show that it was prejudiced by the failure to give notice where the requirement is, as here, a valid condition precedent to coverage. Richmond v. Ga. Farm Bureau, supra at 222. Nor is this case within the exception to this rule noted by the court in Leventhal v. American Bankers Ins. Co., 159 Ga. App. 104, 108 (283 SE2d 3) (1981) because in Leventhal the insurer had timely actual notice of the accident and lawsuit; in this case, State Farm had no notice from anyone. We note that the law allows anyone, and not just the insured, to give timely notice to the insurer to invoke coverage. Stonewall Ins. Co. v. Farone, 129 Ga. App. 471, 474 (199 SE2d 852) (1973).

Finally, we are not persuaded that this case fits within the factual parameters of Southern Guaranty Ins. Co. v. Miller, 183 Ga. App. 261 (358 SE2d 611) (1987), in which this court held that an insured’s failure to notify its insurer of an accident was justified because apparently no one was injured in the accident and there was no significant property damage. Notice in that case was given shortly after the claimant contacted the insured some two months after the accident. While the present case might fit with Miller had notice been given to State Farm at the time of the summons or shortly thereafter, it is clearly distinguishable where, as was done here, nearly six months passed after the Shanes knew of the summons and the serious claim against Tom Shane. Under the facts of this case, the trial court correctly granted summary judgment to appellee State Farm.

Judgments affirmed.

Banke, P. J., and Sognier, J., concur.

Chambers, Mabry, McClelland & Brooks, Walter B. McClelland, for appellant (case no. A89A0101).

Drew, Eckl & Farnham, James M. Poe, for appellee.

       We note that the attorney, H. Alford Fleming, Jr., has since voluntarily surrendered his license to practice law as a result of an unrelated matter. See In the Matter of H. Alford Fleming, Jr., 258 Ga. 537 (373 SE2d 512) (1988).


text:
    A89A0286.
    W. W. FOWLER OIL COMPANY et al. v. HAMBY.
    (385 SE2d 106)
   Pope, Judge.

The issue presented in this workers’ compensation appeal is whether the mere touching of the head of an employee with a gun by an armed robber, without any physical injury, is a sufficient discernible physical occurrence to support compensation for the resulting emotional and psychic problems experienced by the employee. The Administrative Law Judge (ALJ) and the Board found that it was not sufficient; the superior court found that it was and reversed the Board. We granted this discretionary appeal to consider the issue. The ALJ found the following facts:

“1. The claimant was working as a clerk at a convenience store owned by the employer/insurer in the early hours of August 9, 1986, when the establishment was robbed.

“2. The robber held a gun to the claimant’s head and threatened her.

“3. There was an actual physical touching of the gun to the claimant’s head just behind the ear, but she was not physically harmed in any way by this contact.

“4. Subsequent to the robbery, the claimant developed certain psychic problems, in that she became extremely nervous and was afraid to be alone. The claimant has never suffered any physical problem or injury as a result of the incident.”

Claimant’s theory is that her emotional and psychic problems stem not from the fright of the robbery as. a whole, but rather from the act of the robber putting the gun against her head. Claimant argues that this touching is a sufficient discernible physical occurrence to meet the requirements of Georgia law as outlined in Hanson Buick v. Chatham, 163 Ga. App. 127 (292 SE2d 428) (1982). The superior court agreed and found that claimant’s testimony that “[w]hen the gun hit my head, it. . . my nerves went all to pieces” showed a “discernible physical occurrence” from which claimant’s psychological problems directly flowed.

We find that claimant and the superior court have mistaken our meaning in the phrase “discernible physical occurrence.” The court’s discussion of authorities in Chatham, supra, shows that “discernible physical occurrence” means a physical injury or harm, not merely a touching that can be fixed in time. The cases relied upon by the court in Chatham are couched in terms of “physical injury.” On motion for rehearing, the court explained that it defined “accident” in terms of “discernible physical occurrence” rather than in terms of a physical blow or impact to cover cases in which “the aggravation of a pre-ex-isting injury is not truly accidental nor impactive, but is nevertheless physical . . . .” Chatham at 131.

Decided July 11, 1989

Rehearing denied July 24, 1989

Cone & Shivers, Benjamin J. Johnson, for appellants.

John F. Sweet, for appellee.

The evidence supports the findings and award made by the ALJ and the Board. We are not persuaded to find differently by the decision cited to us by claimant, Prahl Bros. v. Phillips, 429 S2d 386 (Fla. Dist. Ct. App. 1983). See Hanson Buick v. Chatham, supra at 132 (5) and Williams v. ARA Environmental &c., 175 Ga. App. 661 (334 SE2d 192) (1985) (particularly the concurring opinion by Beasley, J.).

Accordingly, we find that the superior court erred and that the award of the Board should be reinstated.

Judgment reversed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A1136.
    COLEY et al. v. EVANS MEMORIAL HOSPITAL.
    (385 SE2d 100)
   McMurray, Presiding Judge.

Claiming he was sexually assaulted in the emergency room of Evans Memorial Hospital by the physician who treated him, plaintiff brought suit against the hospital and the physician seeking damages for assault and battery and the intentional infliction of emotional distress. Plaintiff’s wife joined the suit, seeking damages for loss of consortium. The liability of the hospital was predicated solely on the doctrine of respondeat superior.

Following discovery, the hospital moved for summary judgment. The motion was granted and plaintiffs appeal. Held:

Assuming, arguendo, that the physician was a servant of the hospital, nevertheless, the hospital was entitled to judgment as a matter of law. “OCGA § 51-2-2 provides: ‘Every person shall be liable for torts committed by . . . his servant by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily.’ ‘As construed in Frazier v. Southern Ry. Co., 200 Ga. 590, 593 (37 SE2d 774), “The word ‘voluntarily’ in § 105-108 (OCGA § 51-2-2) will cover any or all motives or purposes of the wrongdoer, acting in the scope of his employment, which are not covered by ‘acts of negligence.’ The true test is not whether the tort was committed by reason of anger, malice or ill will, but whether or not it was committed in the prosecution and within the scope of the master’s business. If the tort be committed, not by reason of the employment, but because of matters disconnected therewith, the master would not be liable.” [Cit.]’ ” McCranie v. Langdale Ford Co., 176 Ga. App. 281, 282 (335 SE2d 667). The alleged sexual assault committed by the physician did not further the hospital’s business. It was a purely personal act which was unrelated to the physician’s employment. Accordingly, the hospital cannot be deemed vicariously liable for the act of the physician. Big Brother/Big Sister of Metro Atlanta v. Terrell, 183 Ga. App., 496, 498 (3) (359 SE2d 241); Southern Bell Tel. &c. Co. v. Sharara, 167 Ga. App. 665, 667 (2) (307 SE2d 129). See also Hoover v. Univ. of Chicago Hosp., 51 Ill. App.3d 263 (366 NE2d 925) (1977).

Decided July 10, 1989

Rehearing denied July 24, 1989

Joseph B. Bergen, Frederick S. Bergen, for appellants.

Philip R. Taylor, Charles R. Brown, for appellee.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


author: Beasley, Judge. Carley, Chief Judge,

text:
    A89A0047.
    BRYGIDER v. ATKINSON.
    (385 SE2d 95)
   Beasley, Judge.

Brygider, a former client of attorney Atkinson, appeals the grant of summary judgment to Atkinson in this suit over unpaid attorney fees.

Recovery was sought under three theories, but the motion for summary judgment is based only on Count One, breach of an oral contract.

The controversy for which Atkinson was hired involved a product, a “guardfather” produced by Bingham, Ltd., of which Brygider was president. The Federal Bureau of Investigation contended that the device was an illegal switchblade knife. It looked like a ballpoint pen but had a button which, when pushed, caused an icepick-like shaft to emerge and lock into place. Brygider does not dispute that there was a contract of employment, but rather that Atkinson was retained by him as an individual as opposed to a corporate officer. He also disputes the reasonableness of the fees.

The government was granted summary judgment in the federal suit on the ground there was no justiciable case or controversy. This was reversed on appeal to the Eleventh Circuit in 1985. A second motion for summary judgment was made and granted to the government on the merits, resulting in a second appeal.

Brygider paid the bill resulting from the first appeal through May 1986, but when he was billed after the second brief was filed, he took exception to the $5,000 charge for the second appeal and contended that the first brief was merely “reworked” for the second. Also, approximately $3,000 in past due billings from the first appeal appeared on that bill. The briefs themselves are in the record and do reflect some overlap. Brygider contends that, while he did authorize the filing of the second appeal, there was a $2,000 fee cap for it.

Atkinson moved for summary judgment. His supporting affidavit included: “I state that the sum of $5,000.00 to brief an appeal in the United States Court of Appeals is a reasonable attorney fee for a case of the nature of the one performed by me for the benefit of Mr. Bry-gider. In my opinion a fee of $10,000 for such an appeal would not be unreasonable. . . . All services rendered by me were reasonable and necessary to adequately represent Mr. Brygider.” Also included was a statement of Atkinson’s experience as an attorney, as a basis for his opinions as to the fee’s reasonableness.

In his opposing affidavit, Brygider stated he had substantial expertise, as president of Bingham, Ltd., in the reasonableness of attorney fees. “This expertise has been acquired in the course of 15 years of business practice. I have supervised and reviewed the billing of numerous attorneys, including [Atkinson], and have become familiar with the practices in Georgia regarding such fees, and the standards of reasonableness applied in determining such fees. I have reviewed the fees ... in this case, and I have the opinion that they are unreasonable.” Six bases were set out for the conclusion, including the overlap in the two briefs, charges made for such items as “familiarization with rules which should already have been familiar,” and that the time spent and fee charged were beyond his specific authorization.

Although Atkinson states in his brief that he objected to Bry-gider’s affidavit, no hearing transcript or other evidence of such objection is in the record. “A brief cannot be used in lieu of the record or transcript for adding evidence to the record. [Cits.] We must take our evidence from the record and not from the brief of either party.” Blue v. R. L. Glosson Contracting, 173 Ga. App. 622, 623 (1) (327 SE2d 582) (1985); In re Holly, 188 Ga. App. 202, 203 (372 SE2d 479) (1988); see Chapman v. McClelland, 248 Ga. 725, 726 (2) (286 SE2d 290) (1982). Nevertheless, whether he objected or not, the legal efficacy of the affidavit would still have to be determined on appeal on addressing the summary judgment issue.

The trial court was bound to construe the evidence in favor of Brygider, the party opposing the motion. Eiberger v. West, 247 Ga. 767, 769 (1) (281 SE2d 148) (1981); Mitchell v. Rainey, 187 Ga. App. 510, 512 (370 SE2d 673) (1988). Summary judgment was appropriate only if there was no genuine issue as to any material fact and the law demanded judgment for Atkinson. OCGA § 9-11-56 (c).

It would have been demanded only if there was no dispute that Atkinson and Brygider had agreed that Atkinson was to spend as much time as reasonable to produce the second brief; that there was no cap on the fee; and that $5,000 was reasonable. There is clearly a dispute as to the first two items, with Brygider stating he did place a cap and Atkinson stating he did not. This matter of credibility is peculiarly for the jury. OCGA § 24-9-80. Also, the fact that two opinions have been given as to the reasonableness of the fee itself, defeats summary judgment.

“[W]hen the evidence on a dispositive issue consists of opinion evidence, such evidence alone can never sustain an award of summary judgment. [Cits.] Introduction of opinion evidence by the non-moving party, however, . . . can be sufficient to preclude an award of summary judgment. [Cits.]” Scott v. Owens-Illinois, 173 Ga. App. 19, 22 (2) (325 SE2d 402) (1984); Bryan v. Bryan, 248 Ga. 312 (282 SE2d 892) (1981); Dickson v. Dickson, 238 Ga. 672, 674 (2) (235 SE2d 479) (1977); Hepner v. Southern R. Co., 182 Ga. App. 346, 349 (1) (356 SE2d 30) (1987).

This case is similar to Spears v. Allied Engineering Assoc., 186 Ga. App. 878 (368 SE2d 818) (1988). Spears, a developer and builder hired Allied to perform engineering services. Although the hourly rate for the services had been agreed upon, there was a “factual dispute over the number of hours it actually took or should have taken for the work to be performed. Therefore, summary judgment was inappropri ate as to the amount Spears owed Allied. [Cit.]” Spears’ affidavi based on his experience as a builder and developer, expressed hie opinion that the hours expended and the charges made for engineer ing services were excessive. Brygider, based on his experience as i businessman and his previous dealings with attorneys, expressed hi: opinion that the hours and charges were excessive. This sufficed t< defeat summary judgment.

Judgment reversed.

McMurray, P. J., concurs. Carley, C. J., con curs specially.

Carley, Chief Judge,

concurring specially.

I agree with the majority that summary judgment was imprope because there were genuine issues of material fact as to the terms an< conditions of the contract between the client and the attorney. I d not agree with the majority that Spears v. Allied Engineering Assoc. 186 Ga. App. 878 (368 SE2d 818) (1988) is applicable to this case in such a manner as to require a finding that the affidavit of the client is sufficient to raise an issue as to the “reasonableness” of the fee. However, there being a genuine issue as to the terms of the contract between the parties, summary judgment was improper.

Decided July 3, 1989

Rehearing denied July 25, 1989

King, Morriss, Talansky & Witcher, Joseph H. King, Jr., for appellant.

Tyrus B. Atkinson, Jr., pro se.


author: Deen, Presiding Judge. Benham, Judge,

text:
    A89A0109.
    THOMAS v. THE STATE.
    (385 SE2d 310)
   Deen, Presiding Judge.

The appellant, Joe Thomas, was convicted of 2 counts of theft by receiving stolen property. The evidence adduced at trial showed that at approximately 2:20 a.m. on May 11, 1987, a patrolling police officer observed Thomas standing between two vehicles parked in a car wash lot. The hoods of both vehicles were open, and the officer stopped and approached Thomas to see if something was wrong. The officer noticed that the ignition switches on both vehicles had been popped out, and, when a radio check revealed both vehicles to be stolen, he arrested Thomas. At the time Thomas explained that he was trying to jump-start his vehicle with a friend’s vehicle. At trial, however, he claimed that his only connection with the two vehicles was that he had merely stopped on his way home to urinate between them.

The indictment charged Thomas with receiving and retaining stolen property, but in charging the jury the trial court read OCGA § 16-8-7, which defines theft by receiving stolen property as when a person “receives, disposes of, or retains stolen property . . . .” Thomas’ sole contention on appeal is that a fatal variance between the allegata and the probata resulted from the use of the conjunctive “and” in the indictment but the disjunctive “or” in the jury charge.

“ ‘The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.’ (Citations omitted.) Berger v. United States, 295 U. S. 78, 82 (55 SC 629, 79 LE 1314).” DePalma v. State, 225 Ga. 465, 469-70 (169 SE2d 801) (1969). The above requirements were met in the instant case; the proof did not vary from the allegations in the indictment. Compare Nesmith v. State, 183 Ga. App. 529 (359 SE2d 421) (1987). The trial court’s reading of the Code section defining theft by taking, although not entirely applicable, did not have the effect of altering the State’s burden of proof, because the trial court also instructed the jury that it should return guilty verdicts only if it found Thomas guilty as charged in the indictment. Cf. Owens v. State, 173 Ga. App. 309 (4) (326 SE2d 509) (1985).

Decided July 10, 1989

Rehearing denied July 25, 1989

Jonathan J. Wade, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, Keith L. Lindsay, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

Benham, Judge,

dissenting.

I must differ with the conclusion of the majority that the trial court’s reading of OCGA § 16-8-7 did not have the effect of altering the State’s burden of proof. Although the court did give a correct charge on the doctrine of burden of proof, there were no remedial instructions given to clarify the difference between the indictment as drawn and the Code section as written.

The indictment specifically required that the jury, in order to convict appellant, find that appellant had both received and retained stolen property. Because OCGA § 16-8-7 is phrased in the disjunctive, it would allow the jury to elect whether the accused received, or disposed of, or retained stolen property, and to convict if it found that any one of those elements had occurred. Thus, charging the Code section presented the jury with an alternative, conflicting theory allowing a conviction with less proof than that demanded by the indictment. Therefore, I agree with appellant that the trial court’s refusal to recharge or otherwise clarify the law to the jury, as requested, constituted reversible error. Accordingly, I respectfully dissent. See Nesmith v. State, 183 Ga. App. 529 (359 SE2d 421) (1987).

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