author: Beasley, Judge. Pope, Presiding Judge,

text:
    A98A1351.
    LEWIS v. EMORY UNIVERSITY.
    (509 SE2d 635)
   Beasley, Judge.

Judith Lewis appeals a judgment entered on a jury verdict in favor of Emory University d/b/a Crawford Long Hospital arising out of her husband’s death following a heart attack for which he received treatment at defendant hospital. Lewis enumerates four errors of the court: refusing to allow her to qualify prospective jurors with regard to their relationship with Emory’s excess insurance carrier; failing to allow testimony of statements made by a witness who died before trial; prohibiting cross-examination of a defense expert with a document upon which the expert relied; and prejudicing the jury by repeatedly charging that they could not guess or speculate.

1. Prior to jury selection, the trial court asked the lawyers to identify any insurance carrier in the case. Emory’s counsel explained that Emory was self-insured for the first $3,000,000 and that St. Paul Fire & Marine Insurance Company provided excess coverage thereafter. The court asked if St. Paul was a mutual company, to which defense counsel responded that it was a stock company. The court explained it understood judges are not required to qualify the jury with respect to insurers that are stock companies. Lewis’ counsel objected and argued that regardless what type company it was, the court was required to qualify the prospective jurors as to whether they were stockholders, employees, officers, directors or had a financial interest in St. Paul. The court disagreed but allowed Lewis’ counsel to ask comprehensive questions about each prospective juror’s employment background.

During closing argument, Lewis asked the jury to award up to $4,800,000 damages, but it awarded none. Lewis moved for a new trial but the motion was denied.

The long-standing Supreme Court decision in Atlanta Coach Co. v. Cobb mandates reversal. The Court considered the competing policies of the plaintiffs right to a panel of impartial jurors from which to select a jury and the rule prohibiting mention of indemnity contracts during trial proceedings. It reasoned that a non-party insurer’s “own interest in the result of the litigation would appear to be equal to, if not even greater than, that of the defendant; and when it once appears that an indemnity contract does exist in a particular case, the matter of purging the jury as to relationship to such company is not less important than if the company were an actual party.”

The Court held that officers, employees, and stockholders and relatives of stockholders of a non-party insurance company which may be liable for a judgment rendered in the case are disqualified as a matter of law from serving as jurors and that refusing to allow plaintiff’s counsel to so qualify the jury creates a presumption of injury. This presumption cannot be overcome after the verdict by affidavits asserting that no juror was disqualified. These rules have been followed recently in Dalton v. Vo and Arp v. Payne.

The trial court misunderstood the difference between how mutual and stock companies are handled. The jury must be qualified for both types of insurers with regard to officers, employees, and stockholders and their relatives. The jury need not be qualified as to policyholders in stock companies because such policyholders do not have any interest in the assets of the company; mutual company policyholders are shareholders or otherwise have an interest in the assets of the insurer and therefore none can serve on the jury.

Emory insists a jury need not be qualified as to an excess carrier. Certainly here, where Lewis sought damages exceeding the primary coverage, there is no ground for excluding the excess carrier from application of the Atlanta Coach rule. Both insurers were non-party insurance companies potentially liable for a judgment. The answer to whether the same rule would apply if the plaintiff sought damages in an amount less than the primary coverage must await another day. The trial court’s failure to qualify the jury as to St. Paul was error.

As explained by Atlanta Coach, the error is “presumptively harmful.” Although the Supreme Court indicated the presumption possibly could be rebutted, it did not set out a guide to determine the method or criteria to be satisfied. The manner in which the court in this case attempted to rebut the presumption of harm is analogous to the unsuccessful attempt made in Atlanta Coach.

Immediately after the verdict was announced the following dialogue occurred: “THE COURT: All Right. Again, I want to thank you. Take that around to — let them see it before the jury leaves. Now, you’re free to talk to the lawyers about this if you choose. And as a matter of information, not that [it] had anything to do with the case and the case is over now, I want to ask you a question that we debated early on. Are any of you employed by, as an employee, a stockholder or an officer, with the St. Paul Insurance Company? Any or you? THE JURY: No. THE COURT: Anybody in your immediate family work for that company? (No Response). THE COURT: All right. Let the record show none of them. All right, you’re free to go. And, again, I thank you very sincerely.”

First, the court failed to ask whether the jurors were related to anyone who was a stockholder of St. Paul, which is required under Atlanta Coach. As stated recently in Dalton v. Vo, “controlling case law does not limit this right to inquire to policyholders of mutual companies but extends it to officers, employees, stockholders or anyone related to stockholders of the insurance company.” Second, like the affidavits in Atlanta Coach, the court’s offhand inquiry, made at a time not only after the verdict but also ambiguous as to whether the jury had been excused, failed to substitute for a voir dire. True, it was in open court and before the jury dispersed, but that post-purge was an insufficient remedy for the omission of the right “to pursue the lawful procedure in the selection of a jury.” Atlanta Coach held that affidavits asserting there are no grounds for disqualification among the jury panel which are offered after trial are insufficient to rebut the presumption of error. “After verdict, the jurors could not impeach their finding by showing their own disqualification, not even in reply to others who may have testified in vindication of the verdict, nor, indeed, by explaining any error or mistake which might have been made in their original affidavits, and which might have been discovered on further examination.” “[T]he plaintiff had the right to a panel of. . . impartial jurors from which to select the trial jury.” “[I]t is apparent. . . that after verdict the plaintiff did not have the same opportunity of discovering and proving possible disqualifications which she was entitled to exercise upon the trial, the same having been seriously curtailed by the rendition of the verdict and the consequent application of the rule that jurors can not impeach their finding.” “The question as to the competency and impartiality of the jurors is thus to be determined before the parties begin to strike a jury.” Third, the post-verdict inquiry procedure is counterproductive to the efficient administration of justice by creating an unnecessary risk. As stated in Atlanta Coach: “The validity of a trial should not be hazarded by a possible relationship upon the theory that the plaintiff could be protected by the grant of a new trial should it appear after verdict that a juror was so disqualified.”

The dialogue between the court and the jury after the verdict in this case suffers from the same infirmity as the affidavits in Atlanta Coach. Most importantly, the answers given by the jury were after the verdict and therefore subject to the rule that jurors cannot impeach their own findings. Emory argues the jurors were still in court under oath when they answered the court’s questions. However, we see no operative difference between a juror’s answering the court’s questions after the verdict and submitting a sworn affidavit sometime thereafter. Neither overcomes the presumption of harm. For one thing, neither effort subjects the jurors to examination by counsel.

Emory counters that the jurors were not incompetent to testify after the verdict because their testimony supported the verdict. Atlanta Coach addressed this argument as well. “If the plaintiff was entitled to have the examination as to relationship conducted in open court and before verdict while the jurors were competent to testify against as well as for their qualification, the error in denying this right was not cured by the submission of affidavits procured by the defendant out of court and after verdict, when the jurors could legally testify only one way on the question, and by offering to permit the plaintiff to make a counter-showing. This was to fall materially short of restoring what had been taken away by an erroneous ruling, and the plaintiff was not bound to accept the substitute. ... A mere fragment of the right does not satisfy the whole.” In other words, the law itself provides the negative factual answer, without an opportunity to discover whether it is true factually or not. In addition, the Supreme Court specifically overruled case law requiring a party who complained that the court failed to purge the jury of relatives of the other party, to either allege or prove that a relative was on the jury.

The problem of timing in this case meets the problem of identifying. This Court has suggested there must be a better way to gather the necessary information from the prospective jurors without informing them that an insurance company is interested in the outcome. But here, although the court attempted to allow plaintiff’s counsel some leeway during voir dire, the court did not propose or implement a comprehensive solution for unearthing the relevant facts from the jurors without mentioning that an insurance company had an interest. It is “the duty of the court, on proper application, to provide a competent and impartial jury.”

We are constrained to follow Atlanta Coach: “[A]n interest [in the litigation] can not be concealed or shrouded in mystery, where to do so would abridge the right of a plaintiff to pursue the lawful procedure in the selection of the jury.” Throughout the trial, the parties did not know whether a juror was disqualified as to St. Paul.

The remaining enumerations are addressed to avoid recurrence on retrial should there have been error.

2. Jim Lewis was in the hospital suffering from chest pains early on the morning of April 7, 1992. He was placed in a room for emergencies and attached to cardiac monitoring equipment. At approximately 4:40 a.m. Lewis was discovered in a cyanotic, apneic and pulseless state. Sheila Milner, the respiratory therapy supervisor on duty, was among the medical personnel who responded to a call for help and she is the person who intubated Lewis during the attempt to resuscitate him.

Ms. Milner died three months after this suit was filed and before trial. Her deposition was never taken. Plaintiff sought to introduce statements allegedly made by Milner to two colleague therapists, one when he came on duty the next morning and the other, Lewis’ twin brother, within a week or so after the episode. The evidence, which the court disallowed, was as follows:

Witness James Todd (the next morning): “I had asked her did she have a hard time getting Jim intubated, and she said no, that he was a very easy intubation. And she commented on the fact that he was — she said he was as blue as she had ever seen anybody.

“Q. Did she say anything at all about Jim’s jaw being clenched?
“A. No.
“Q. Anything at all about him being in seizure?
“A. No.”

Witness Thomas Lewis: “She (Milner) told me over the phone — I had called during the night shift and asked her, were you the therapist on that night, or supervisor, rather, and she said yes. And I just asked, do you know what went on in the ER. And she said she responded to the doctor 99 quickly, she ran into the room and it was a zoo, she saw Jim on a stretcher and didn’t recognize him at first because from the waist to his head he was very blue. She said she went to the head of the stretcher to intubate him because the ER physician had not been able to slip a tube. I asked her if he was a difficult intubation. She said, no, he was easy, he was limp. She said it looked like he had been down for awhile and that she had never seen anyone any bluer than he was.”

The statements were offered under the “necessity exception” to the hearsay rule. OCGA § 24-3-1 (b). “The statutory exceptions to the rule against the admission of hearsay are not exhaustive and exclusive of all other cases. An exception will be allowed ‘from necessity’ where ‘necessity’ and ‘particularized guarantees of trustworthiness’ are established.”

Lewis urges Milner’s testimony is necessary because whether the intubation was difficult helps show how long her husband had been in cardiac arrest before he was discovered in that condition. This in turn was allegedly material to whether Lewis was beyond redemption when discovered and his life-threatening condition should have been discovered earlier or, contrarily, cardiac arrest had just occurred so the attempted resuscitation was timely. According to Emory’s expert: “The jaw was clenched tightly making it difficult for intubation to be done. Again, in my experience that is a very important sign that one is very early in the resuscitation.” The expert concluded that Lewis’ cardiac arrest was “detected extremely quickly.”

Emory argues the statements were not relevant because others witnessed these events. Before Milner arrived in Lewis’ room after the call for help arose, at least five other medical personnel including one doctor were present. One such witness testified that when she arrived, Lewis was rigid, his fists were clenched, and his head was tilted back. Another said he was stiff and arched with his head flung back. A third said he was rigid, seizing, his back arched, and his teeth were clenched. A nurse testified that during his several attempts to resuscitate Lewis, the jaw was clenched. This evidence indicated that Lewis had just suffered the cardiac arrest.

The issue is whether the trial court’s exclusion of the hearsay evidence as not fitting the necessity exception is an abuse of discretion. If the discretion is abused in that the law requires the evidence to be excluded or admitted and the trial judge rules the opposite, this constitutes clear error. Evidence of even doubtful relevance should be admitted.

The first part of the necessity rule is satisfied if the evidence is unattainable from some other source (e.g., only the unavailable declarant has it; it is unique to her), the declarant is unavailable (e.g., dead) and, as is true of all evidence, it is relevant. If it contradicts other witnesses’ testimony, as here, it is relevant. Declarant Milner’s statements meet these criteria.

The second part of the rule is that the evidence must be shown to be trustworthy, a threshold degree of trustworthiness to warrant admissibility although not to the ultimate degree to achieve credibility with the jury. Emory argues that Todd’s and Tom Lewis’ testimony may be biased, but they are subject to cross-examination. Any question regarding their interest in the case “should merely go to the credibility of the witness, not to the admissibility of the declarant’s statement.”

As to the trustworthiness of the declarant’s statement, “the mere fact that a witness is dead does not render his declarations admissible, although, if in addition to the death of a witness there are circumstances which attribute verity to his declarations, the hearsay rule may be relaxed to permit the admission of such declaration.” “[T]he proponent need only show threshold trustworthiness. ... If the statement was made in circumstances in which it is unlikely to have been untrue, it meets this aspect of trustworthiness. In other words, there must be something present which the law considers a substitute for the oath of the declarant and his cross-examination by the party against whom the hearsay is offered. . . . [T]he ultimate trustworthiness [is] left to the jury [where suitable]. It is for the jury, under appropriate instructions, to determine the weight and credibility of the declarations.” “[A] finding of trustworthiness must be based on a consideration of the totality of the circumstances, but. . . the relevant circumstances include only those that surround the making of the statement and that render the declarant worthy of belief. The standard is whether the declarant’s truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility.”

Milner was the only person who intubated Mr. Lewis and was in the best position to know how easy it was. She was a friend of Lewis but also an employee of the hospital, and the statements were against the interest of her employer. There is no evidence that her statements were self-serving or calculated to benefit Lewis. There has been no suggestion that she had a reason to lie. She made the statements to Todd, another respiratory therapist, in a professional capacity after he came on duty the morning after she had intubated Lewis. Todd’s testimony indicates that the statement was made in the course of their professional work in intubation. She made essentially the same statement to Jim Lewis’s twin brother, who was also a respiratory therapist, within a week or so of the episode. Thus there is consistency.

Todd testified that difficult intubations were typically discussed among therapists. He acknowledged that ease of intubation was a subjective conclusion and that his own conclusion might differ based on the same circumstances. There is no contradictory information in the related written medical records, and difficult intubations are generally recorded and should be noted on the hospital chart. The chart showed no such indication.

The fact that the statements contradict the other testimony does not eliminate their reliability. Emory contends such an inconsistency indicates a lack of trustworthiness. The cases cited in support are distinguishable.

Because a threshold level of trustworthiness has been shown, Mrs. Lewis should be allowed to introduce the deceased declarant’s statements to the jury, to counter the recollections of others on the scene and of Emory’s experts with respect to their opinions concerning length of time between arrest and intubation and its significance.

3. Before the litigation, Emory’s attorney sent a letter to counsel for Mrs. Lewis summarizing information about her husband’s care and the hospital’s attempts to save him. The letter stated further: “As we also discussed, this will confirm that this summary is being provided only for informational purposes, and should litigation ensue, it will not be used by either party for any purpose, whether as direct evidence, impeachment, for cross-examination, etc.” After suit was filed, Emory provided a copy of the letter to Dr. James Ornato, one of its experts, and he reviewed it as a part of his analysis of the case.

During trial, Dr. Ornato’s deposition was read to the jury, but the court sustained an objection to the portion of the deposition where Lewis’ attorney cross-examined Ornato about the letter. Lewis contends the court erred because Emory waived any right to rely on the agreement not to use the letter and a plaintiff is entitled to cross-examine an expert on the factual basis for his opinion.

The trial court did not state the basis of its ruling. “The right of a thorough and sifting cross-examination shall belong to every party as to the witnesses called against him.” And as the Supreme Court has written: “a party who relies upon a witness’ opinion may not withhold from the jury the facts that are relied upon in forming the opinion, [cits]. Furthermore, a jury is entitled to know all of the facts upon which the witness’ opinion rests and the facts may be brought out on cross-examination. [Cits.]”

By giving the letter to its expert, Emory violated the agreement between the parties not to use it in the litigation. No valid ground is presented to show that it did not waive the agreement by so doing. Reliance on the report by Emory’s expert requires allowing Lewis to cross-examine Ornato using the letter. The deposition reveals that Emory’s argument that Lewis attempted to use the letter in a prejudicial manner is without merit.

4. Lewis contends the jury was unfairly prejudiced in favor of Emory because the trial court instructed the jury on five occasions that they could not guess or speculate to reach a conclusion in the case. In two of the instances the court was instructing the jury about the requirement that expert testimony must support a finding of professional negligence. In one other instance, the court was instructing that it could find for the defendant even if the cause of Lewis’ death was a matter of speculation.

“ ‘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. . . .’ ” In that context the repetition did not cause reversible error. Nevertheless, the court should not set impartiality at risk by emphasis on select parts of the instructions.

Judgment reversed.

Pope, P. J., and Ruffin, J., concur specially.

Pope, Presiding Judge,

concurring specially.

I agree with Divisions 2, 3 and 4 of the opinion; I write separately with respect to Division 1.

I agree with the majority that because Lewis sought damages in excess of the primary coverage there was no reason to exclude St. Paul, as the excess carrier, from application of the rule from Atlanta Coach Co. v. Cobb, 178 Ga. 544 (174 SE 131) (1934). Accordingly, I agree that the court erred in failing to qualify the jury as to the officers, employees, stockholders and stockholder relatives of St. Paul Fire & Marine Insurance Company. And, I agree that the court’s post-verdict inquiry to the jurors was incomplete and failed to substitute for voir dire.

I write separately with respect to the majority’s suggestion that the requisite information should be gathered from jurors during voir dire without informing them that an insurance company is involved in the case. “[I]n this enlightened age, it can and should be presumed that prospective jurors already realize that liability insurance coverage is likely to be present in cases involving [medical malpractice claims]. [Cits.]” Arp v. Payne, 230 Ga. App. 840, 841 (497 SE2d 810) (1998) (Pope, P. J., concurring specially).

“I believe that the best approach would be to continue to qualify prospective jurors about any relationship they might have with any interested insurer, as is mandated by Atlanta Coach Co. v. Cobb, [supra]. After such qualification, however, to avoid any potential prejudice that might arise from the qualification itself, or the prospective jurors’ own common knowledge, I would recommend that the trial court give specific limiting instructions that the existence or lack of insurance in a given case is not material and is not to be considered in reaching a decision in the case.” Arp v. Payne, 230 Ga. App. at 842 (Pope, P. J., concurring specially). See also Dalton v. Vo, 230 Ga. App. 413, 414 (497 SE2d 245) (1998) (Pope, P. J., concurring specially).

Decided November 3, 1998

Reconsideration denied December 18, 1998

William Q. Bird & Associates, William Q. Bird, Karin L. Allen, Dwyer, White & Sapp, J. Matthew Dwyer, Jr., for appellant.

Long, Weinberg, Ansley & Wheeler, Frederick N. Sager, Jr., Anandhi S. Rajan, J. M. Hudgins TV, Johnathan T. Krawcheck, for appellee.

I am authorized to state that Judge Ruffin joins in this special concurrence.

       “Motions for new trial because of improper conduct of jurors or parties are addressed to the sound discretion of the trial'judge. Unless there is an abuse of discretion, the appellate court will not upset the trial judge’s determination.” (Citations and punctuation omitted.) Bean v. Landers, 215 Ga. App. 366, 367 (450 SE2d 699) (1994).

       178 Ga. 544 (174 SE 131) (1934).

       Id. at 549-550.

       Id. at 550.

       Id. at 549, 551.

       Id. at 552.

       230 Ga. App. 413 (2) (497 SE2d 245) (1998) (non-precedential), and cases cited therein.

       230 Ga. App. 840 (497 SE2d 810) (1998) (non-precedential), and cases cited therein.

       See Dalton v. Vo, supra.

       See generally Patterson v. Lauderback, 211 Ga. App. 891, 893-894 (3) (440 SE2d 673) (1994), overruled on other grounds, Warren v. Ballard, 266 Ga. 408, 410 (2) (467 SE2d 891) (1996).

        Atlanta Coach, supra, 178 Ga. at 551.

       Id. at 549, 552.

       Supra at 413.

        Atlanta Coach, supra at 550.

        Atlanta Coach, supra at 552.

       Id. at 549.

       Id. at 552. This rule is still the law with certain limited exceptions. OCGA § 9-10-9; Turpin v. Todd, 268 Ga. 820, 823 (1) (c) (493 SE2d 900) (1997); Watkins v. State, 237 Ga. 678, 683-686 (229 SE2d 465) (1976).

       (Emphasis in original.) Id. at 555. “The public policy of this State is to keep jury trials free from suspicion of irregularity or impropriety of conduct. A method for assuring such, and an expression of the policy as a right, is provided in OCGA § 15-12-133.” Fidelity Nat. Bank v. Kneller, 194 Ga. App. 55, 59 (1) (390 SE2d 55) (1989).

       Id. at 550.

       OCGA §9-10-9.

        Atlanta Coach, supra, 178 Ga. at 552-553.

       Id. at 554-555.

       See Franklin v. Tackett, 209 Ga. App. 448, 450-455 (433 SE2d 710) (1993) (Beasley, P. J., concurring specially); Byrd v. Daus, 218 Ga. App. 145 (1) (460 SE2d 819) (1995); Dalton v. Vo, supra.

        Atlanta Coach, supra at 551. See also Roberts v. State, 189 Ga. 36, 44 (2) (5 SE2d 340) (1939) (trial judge has responsibility for a fair and impartial jury).

       178 Ga. at 549-550.

       (Citations omitted.) McKissick v. State, 263 Ga. 188, 189 (3) (429 SE2d 655) (1993); Chrysler Motors Corp. v. Davis, 226 Ga. 221, 226 (1) (173 SE2d 691) (1970).

       See White v. White, 262 Ga. 168, 169 (415 SE2d 467) (1992).

       See Andrews v. State, 249 Ga. 223, 227-228 (290 SE2d 71) (1982) (whether evidence is admissible involves “the discernment of the trial judge,” whose determination will not be disturbed unless it is “clearly erroneous”).

        Ga. Power Co. v. Irvin, 267 Ga. 760, 766 (3) (482 SE2d 362) (1997).

       See, e.g., Hayes v. State, 268 Ga. 809 (493 SE2d 169) (1997); White v. State, 268 Ga. 28 (486 SE2d 338) (1997); Holland v. State, 267 Ga. 833 (483 SE2d 584) (1997); Higgs v. State, 256 Ga. 606, 607-608 (2-5) (351 SE2d 448) (1987); Smith v. State, 231 Ga. App. 677 (499 SE2d 663) (1998); McKibbons v. State, 226 Ga. App. 452 (486 SE2d 679) (1997).

       Emory argues that the evidence is cumulative, but it would only be cumulative if it conformed to that of other witnesses.

        Swain v. C & S Bank of Albany, 258 Ga. 547, 550 (1) (372 SE2d 423) (1988).

       (Citations and punctuation omitted.) Chrysler Motors Corp. v. Davis, 226 Ga. 221, 224 (1) (173 SE2d 691) (1970), quoted with approval in Swain, supra, 258 Ga. 547.

       (Citations and punctuation omitted.) C & S Bank of Albany v. Swain, 185 Ga. App. 881, 884-885 (366 SE2d 191) (1988) (Beasley, J., dissenting), cited with approval by the Supreme Court in Swain, supra, 258 Ga. 547, 550 (2).

       (Citations and punctuation omitted.) Fenimore v. State, 218 Ga. App. 735, 737 (463 SE2d 55) (1995).

       See Mallory v. State, 261 Ga. 625 (409 SE2d 839) (1991) (other than there was no reason for the declarant to lie, there were no indicia of trustworthiness); Boehm v. Abi-Sarkis, 211 Ga. App. 181 (438 SE2d 410) (1990) (declarant gave inconsistent testimony about the critical facts).

       (Emphasis in original.)

       OCGA § 24-9-64.

        Eason v. State, 260 Ga. 445, 446 (396 SE2d 492) (1990); see also cases cited therein.

        Jimmerson v. State, 190 Ga. App. 759, 761 (1) (380 SE2d 65) (1989) (reversible error to withhold from the jury facts on which opinion relied upon is based).

        Roker v. State, 262 Ga. 220, 222 (4) (416 SE2d 281) (1992).

       See Jackson v. Rodriquez, 173 Ga. App. 211 (325 SE2d 857) (1984) (“ ‘it is error to repeat again and again a portion of a charge which is more favorable to one party than the other,’ ” but the charge as a whole is determinative).


source: Caselaw Access Project

author: Andrews, Chief Judge.

license: Public Domain

text:
    A98A1632.
    AMOCO FABRICS & FIBERS COMPANY v. RAY et al.
    (510 SE2d 591)
   Andrews, Chief Judge.

On November 3,1998, we dismissed the appeal of Amoco Fabrics & Fibers Company (Amoco) for failure to file a separate enumeration of errors as required by OCGA § 5-6-40 and Court of Appeals Rule 22 (a). Amoco filed a separate enumeration of errors on November 12 and has filed its motion for reconsideration of this dismissal. Although we do not condone this failure and expect compliance with the Rules of this Court, pursuant to that motion and in light of Reeder v. Gen. Motors Acceptance Corp., 235 Ga. App. 617 (510 SE2d 337) (1998) (whole court) and Leslie v. Williams, 235 Ga. App. 657 (510 SE2d 130) (1998) (whole court), we hereby vacate our opinion of November 3, 1998, and issue the following opinion.

This class action was filed by former employees of Amoco alleging breach of contract or, alternatively, recovery in quantum meruit. This litigation was a result of Amoco’s refusal to pay vacation benefits to its former employees for the period in 1992 until Amoco sold the manufacturing plant where they worked, even though they were not Amoco employees on record as of December 31, 1992, which Amoco contends is the eligibility rule for vacation pay. Amoco contends the trial court’s conclusion that the eligibility rule was not part of the parties’ enforceable vacation pay contract, the resulting summary judgment for the employees, and denial of its motion for summary judgment were error.

The parties stipulated the facts at issue. Amoco sold its Bainbridge filament yarn plant to Shaw Industries effective midnight September 25,1992 pursuant to an Agreement for Sale and Purchase of Assets. Plaintiffs are among 170 hourly paid at will employees on Amoco’s last complete payroll of September 25.

By midnight that night, Amoco had terminated all active hourly employees at that plant. Almost all were then hired by Shaw effective the day after the closing of the sale and Shaw recognized their service with Amoco for benefit purposes, including vacations, but did not pay vacation pay for any period prior to September 25, 1992. Plaintiffs were not employed by Amoco on December 31, 1992.

All Amoco hourly employees were issued an Employee’s Handbook, the second page of which is headed “About This Handbook” and states “[t]his handbook was prepared to help familiarize you with some important policies and practices. To make it more readable and useful the actual policies, which are far more lengthy and detailed, were summarized. The actual policies are controlled and maintained in the Employee Relations Department. If you should ever have a question concerning any rule or policy, you are encouraged to seek the assistance of your Supervisor or the Employee Relations Department.” (Emphasis supplied.) The Vacation Policy section of the handbook provided for paid vacation to employees, with the length determined by years of employment. In addition to the time off, employees were also entitled to “receive pay equal to [a percentage based on length of service] of the previous year’s earnings for every week [of vacation].” The handbook did not contain much of the information stated in the Amoco Policy Manual vacation policy, including eligibility requirements. Plaintiffs would be owed $117,668.57 if Amoco is liable for this vacation pay for the period prior to the sale.

In 1990, Amoco issued its “Amoco Policy Manual” to all supervisors. The manual contained Policy No. 5.01 ‘Vacation,” which included in its Eligibility and Benefits section the following statement: “[a]n individual must be an employee on record as of December 31 in order to be eligible for a vacation the following calendar year.”

Amoco estimated its potential accrued vacation expense for its hourly employees each month during the year and debited its vacation expense account and credited an accrued vacation liability account on its general ledgers. Amoco employees were eligible to withdraw their vacation pay earned in a given year as early as February of the following year, regardless of whether or when they actually took vacation time off.

On these facts, the trial judge granted summary judgment to the employees, finding that the handbook was not sufficiently “clear and unambiguous” so as to put the “ordinarily prudent person” on notice that the complete details of the vacation pay policy were absent from the handbook and that another source should be consulted for full details.

The issue in such a situation is whether as a matter of law this handbook fairly put employees on notice of the existence of additional materials, including the Amoco Policy Manual, which needed to be consulted in order to determine exact benefits. Adams v. Hercules, Inc., 245 Ga. 464, 465 (265 SE2d 781) (1980).

First, we note that the trial court imposed a “clear and unambiguous” standard, without citing any authority for it. As reflected in Adams, supra, the standard is whether the handbook “fairly” notified the employees of other sources to consult. Use of the stricter standard was error.

In Adams, the Supreme Court affirmed this Court’s finding in Hercules v. Adams, 150 Ga. App. 223, 224 (257 SE2d 289) (1979) that “an additional compensation plan offered by an employer and impliedly accepted by an employee, by remaining in employment, constitutes a contract between them, whether the plan is public or private, and whether or not the employee contributes to the plan. [Cits.]” See also Fletcher v. Amax, Inc., 160 Ga. App. 692, 695 (288 SE2d 49) (1981).

Therefore, the provision of vacation benefits to the employees is part of their employment contract, leaving the issue of whether Amoco’s handbook gave notice to the employees to check other sources for specifics of the vacation benefits.

Amoco contends that the present situation is factually similar to and controlled by Adams, supra, while the employees argue it is more like Rider v. Westinghouse Elec. Corp., 155 Ga. App. 61 (270 SE2d 288) (1980) (Rider II).

In Adams, an employee handbook was provided which stated, in its Foreword, that “it is desirable that each employee know the benefits to which he is entitled. This booklet has been prepared to present this information to you in a form that will be readily available for reference. However, feel free to ask your Foreman or Supervisor for information about you and your job at any time.” The section on Employee Benefit Plans stated that, “[i]n addition to earned wages, Hercules has a liberal array of benefits. . . . These less common Benefit Plans are presented here in a very brief form. Because of the nature of some of these Plans, revisions must occasionally be made. You may obtain the full details of all Benefit Plans from your Fore man, Supervisor or the Personnel Department.” (Punctuation omitted; emphasis supplied.) Hercules v. Adams, supra.

The handbook stated that Hercules would pay an employee absent from work due to an injury suffered in the course of employment the difference between his normal wages and the workers’ compensation he received. Although not mentioned in the handbook, the master agreement contained a 13-week time limitation on the payment of the difference.

The Supreme Court found as a matter of law that the emphasized portion of the handbook “even if standing alone, would put the ordinarily prudent person on notice that the complete details were absent from this presentation, and that at least one other source should be consulted for Tull details.’ ” Adams v. Hercules, supra.

Similarly, we find as a matter of law that the language in the Amoco employee handbook, highlighted above, informed the employees that the handbook was not the “actual policies” and these could be consulted by the employee.

Rider, supra, involved provision of travel accident insurance by an employer to an employee and a very different factual situation. Each year, each employee received a personalized computer generated statement of their accrued benefits, headed by their name, social security number, birth date, and other personalized information. For the years in issue, Rider’s statements contained the following: “ ‘For ACCIDENTAL death, the following would also be paid: If death results from an accident ON THE JOB — $20,000 Personal Accident Insurance Plan PLUS any Workmen’s Compensation which applies. If death should result from an accident while you are traveling on Company business, $25,000 Travel Accident Insurance would ALSO be paid.’ ” Also, the statement said it was “ ‘also important that you take this statement home and review it with members of your family. . . . [I]t will help them to know the full extent of what you have in the benefits “bank” and what you can count on if the need arises.’ ” Rider v. Westinghouse Elec. Corp., 152 Ga. App. 805 (264 SE2d 276) (1979) (Rider I).

Rider died in a job accident and his widow was denied the Travel Accident Insurance because the group insurance policy excluded employees, such as her husband, whose principal job assignment was driving company vehicles unless they were traveling outside their territory, which he was not. Nowhere in the information provided to Rider was he advised that the Travel Accident Insurance was predicated upon a group policy of insurance which was subject to his inspection to determine the full details of coverage and exclusions.

Rider I was issued after Hercules and before Adams. There, this Court reversed summary judgment to Westinghouse based on Hercules. After Adams, this Court again concluded in Rider II that the language used by Westinghouse was not sufficient to put Rider on notice of the need to inspect the group policy, but that there was a factual issue remaining as to whether Rider had received additional materials from the company which did provide information of the group policy and its limited coverage as well as the right to obtain a certificate explaining the details.

Decided December 18, 1998

Lambert, Floyd & Conger, T. Harold Lambert, for appellant.

Kirbo & Kendrick, Ben Kirbo, for appellees.

Here, there is no remaining factual issue and we find that Amoco was entitled to summary judgment.

Judgment reversed.

Johnson, P. J., and Smith, J., concur.

       See, e.g., Crozier v. Crozier, 228 Ga. 372 (185 SE2d 411) (1971); Windsor v. Southeastern Adjusters, 221 Ga. 329 (144 SE2d 739) (1965).


author: Ruffin, Judge.

text:
    A98A1829.
    BELL v. THE STATE.
    (510 SE2d 589)
   Ruffin, Judge.

A jury found Kenneth Bell guilty of one count of statutory rape, one count of incest, one count of child molestation, and two counts of aggravated child molestation. Bell appeals from his convictions, asserting that the trial court improperly limited his right to a thorough and sifting cross-examination. Because the trial court did not abuse its discretion in sustaining the State’s objection on relevancy grounds, we affirm.

“Although a defendant has a right to a thorough and sifting cross-examination of the witness . . . , the scope of cross-examination is not unlimited, and the extent of examination is largely within the discretion of the trial judge and will not be controlled by an appellate court except for abuse of discretion.” (Citation omitted.) Goodrum v. State, 158 Ga. App. 602, 603 (1) (281 SE2d 254) (1981). Moreover, although “[t]he Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value, . . . the admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court.” (Punctuation omitted.) O’Neal v. State, 254 Ga. 1, 3 (3) (325 SE2d 759) (1985).

At trial, Bell, the victim’s stepfather, attempted to question the victim’s mother about an incident in which she had been molested by her own stepfather, Roy King. The victim lived with King and her grandmother during much of the five to seven year period in which she alleged that Bell had molested her. Bell argues that since the victim lived part of the time with King, an alleged “child molester,” King had the opportunity to molest the victim. The trial court sustained the State’s objection to this line of questioning on relevancy grounds.

Upon sustaining the State’s objection, the trial court allowed Bell to make a proffer of evidence outside of the jury’s presence, at which time the victim’s mother testified that King had tried to “touch” her approximately three years earlier when she was 25 or 26 years old. According to the victim’s mother, she was asleep on the couch when King, who had been drinking, came home and started watching an x-rated movie. When the victim’s mother left the couch, he grabbed her and pulled her onto his lap and tried to touch her between her legs, on top of her clothing.

“Generally, evidence implicating another named individual as the actual perpetrator of the crime is relevant and admissible as tending to exonerate the defendant.” Neal v. State, 210 Ga. App. 522, 523 (2) (436 SE2d 574) (1993). However, to be admissible, the evidence “must be such proof as directly connects the other person with the corpus delicti, and tends clearly to point out someone besides [the] accused as the guilty person. Evidence which can have no other effect than to cast a bare suspicion on another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible.” (Punctuation omitted.) Id. In that regard, we have previously upheld a trial court’s exclusion of evidence that a victim lived with another man who had been charged with molesting another child when there was no showing that this third party may have abused the victim. See Sales v. State, 199 Ga. App. 791, 792 (2) (406 SE2d 131) (1991). Compare Burris v. State, 204 Ga. App. 806, 809-810 (2) (420 SE2d 582) (1992) (exclusion of evidence that victim had accused another man of molesting her during the same time period defendant was charged with molesting her constituted reversible error).

In the present case, there is no evidence that King molested the victim. Even if King improperly touched the victim’s mother on one occasion, that evidence has no bearing whatsoever on whether he molested the victim. In any event, at the time of this alleged improper touching, the victim’s mother was a grown woman, not a child. Most importantly, the victim herself consistently identified Bell as the only person who molested her.

Under these circumstances, we find that the trial court did not abuse its discretion when it excluded, as irrelevant, testimony regarding an unrelated allegation of molestation upon a person other than the victim. Accordingly, we affirm Bell’s conviction.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.

Decided December 18, 1998.

Houston & Golub, Phillip N. Golub, for appellant.

Richard E. Currie, District Attorney, George E. Barnhill, Assistant District Attorney, for appellee.


author: Beasley, Judge.

text:
    A98A2027.
    REHBERGER v. THE STATE.
    (510 SE2d 594)
   Beasley, Judge.

Robert Rehberger, a former attorney and candidate for probate judge, was convicted of two misdemeanors, simple battery (OCGA § 16-5-23) and sexual battery (OCGA § 16-6-22.1), and a felony, false imprisonment (OCGA § 16-5-41), for accosting a client during a ten-to-fifteen minute consultation in his office. His sentence included disbarment. Five errors are enumerated.

1. Sufficiency of the evidence of false imprisonment, as required by Jackson v. Virginia, is challenged. “On appeal we must view the evidence in a light favorable to the verdict.”

Shown was that the 27-year-old victim went to Rehberger’s law office to discuss whether she should sign divorce papers presented to her by her husband. When she arrived at Rehberger’s office, she recalled that she had met him once before about two years earlier. This time they discussed her marital problem, he agreed to represent her and he instructed her to obtain certain financial documents for his review. As she attempted to leave, he put his arm around her shoulder briefly.

Two weeks later she returned with one of the requested papers, arriving at about 3:00 p.m. Rehberger escorted her into his office, closed the door and the two stood in front of his desk discussing the papers. The victim was holding her umbrella, pocketbook and day-planner when Rehberger asked if she had the original of her husband’s pay stub. She indicated it was in the planner and Rehberger took the book and tossed it on his desk. He grabbed her right arm and pulled her against him, holding her with his right arm. He rubbed his body against her while holding her so tightly she could feel he was aroused. He rubbed her backside with his hand, then took her hand and rubbed it up and down on his groin. The victim attempted to push away but he continued to grope her and pulled her skirt up high enough to reveal her underwear. At one point he said to her “What’s the matter, you got a boyfriend? I’m sure you do. You’re a beautiful girl.”

Rehberger pulled her shirt open exposing her breast which he touched. The victim said, “Please don’t; I need to go,” and she clutched her shirt to her body. Rehberger said, “well, you can’t fault me for trying” and put his mouth on hers. She continued to push him away and tell him, “Please don’t,” but when he let go and she turned to leave, he pulled her back. He began rubbing himself back and forth on her backside. He had one arm around her waist and with his other hand held her right arm over her head. She finally got free, grabbed her book and went out the door. When she got into her car she saw it was 3:19 p.m.

Rehberger argues that even construing the evidence in favor of the verdict, all he did was hold the victim very briefly, which cannot constitute false imprisonment under OCGA § 16-5-41 (a). But “[t]his statute on its face does not require that the imprisonment be for a specific length of time; all that is required is there be an arrest, confinement or detention of the person, without legal authority, which violates the person’s personal liberty (i.e., against his or her will).” A brief detention is sufficient. Whether the detention amounted to false imprisonment was for the jury to decide. The evidence sufficed.

2. Rehberger insists the court erred in allowing testimony of two allegedly similar transactions, one involving Rebecca Brown and one involving Lori Tankersly. Rehberger argues (1) the Brown incident was not criminal conduct, (2) the incidents were not presented for a permissible purpose, (3) the Brown incident was not sufficiently similar to the charged offense, and (4) the prejudice of the testimony outweighed its probative value.

Rehberger essentially abandons his objection to Lori Tankersly’s testimony, as well he might, because her experience was very similar to the victim’s and thus obviously probative. She testified that after a 20-to-30 minute interview about her divorce, in his office with the door closed, Rehberger suddenly pulled her against him and forcibly started to kiss her. He had his arm around her and she could feel his erection against her. She pushed him away, and he said he thought she was attractive and he wished he had someone who looked like her. This incident falls within acceptable similar transaction testimony.

Rehberger’s primary argument focuses on the testimony of Rebecca Brown, a former personal injury client. She testified that the first time she met with Rehberger without her parents present she was age 23. He put his arm around her, told her she was real pretty, and asked if she would date older men. She testified that with his arm around her shoulder he pulled her backwards one step without her consent. Rehberger contends this incident lacks probative value and, although perhaps unprofessional, is not sufficiently similar conduct. The State argues his actions constitute simple battery and contribute to prove Rehberger’s motive and intent in the instance on trial and his modus operandi.

Appellate courts uphold trial court decisions to admit evidence unless clearly erroneous. It is error to allow similar transaction evidence solely “to show a probability that the defendant committed the crime . . . because he is a man of criminal character,” but a court may permit such evidence to show intent, motive, and course of conduct. “[T]here must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter.” “The rule allowing similar transaction evidence has been most liberally extended in the area of sexual offenses.” “In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. There need only be evidence that the defendant was the perpetrator of both acts and sufficient similarity or connection between the independent crime and the offenses charged.”

Rehberger’s defense was that he did not do the things the victim described, that he simply met with his client and escorted her out when the meeting was over. Both the Brown and Tankersly incidents are similar sexual advances on young female clients, including uninvited physical contact while Rehberger and the client were alone in his law office. These incidents show Rehberger’s unwitnessed disregard of the boundary of a professional relationship based on trust and the substitution of a one-sided personal affront in a place within his exclusive control. They show a course of self-gratifying conduct of impermissibly touching young female clients and a refusal to properly control and conduct himself in their vulnerable presence. It was not error to admit the testimony.

Decided December 18, 1998

Millard C. Farmer, Jr., Joseph M. Nursey, for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.

3. Rehberger contends the court erred in not instructing the jury concerning the similar transaction testimony contemporaneous with its admission even though he did not request such an instruction at that time. The Supreme Court of Georgia rejected this position in State v. Hinson and State v. Belt.

4. Rehberger contends his sentence was constitutionally excessive. As in Winn v. State “[t]he sentence was within the statutory limits set by [OCGA § 16-5-41]. We will not review for legal error any sentence which is within the statutory limits. Any question as to the excessiveness of such a sentence should be addressed to the sentence review panel as provided in OCGA § 17-10-6. [Cit.]”

5. Rehberger asserted the trial court was not authorized to disbar him as a part of the sentence. The disbarment has been confirmed, and the enumeration is moot.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Benson v. State, 172 Ga. App. 135, 137 (322 SE2d 339) (1984), citing Rutledge v. State, 245 Ga. 768, 769 (267 SE2d 199) (1980).

        Herrin v. State, 229 Ga. App. 260, 263 (3) (493 SE2d 634) (1997).

       See Reynolds v. State, 231 Ga. App. 33, 34 (1) (497 SE2d 580) (1998).

       See, e.g., Rary v. State, 228 Ga. App. 414, 415 (1) (b) (491 SE2d 861) (1997).

        See Abrams v. State, 229 Ga. App. 152, 153 (1) (493 SE2d 561) (1997).

       (Citation and punctuation omitted.) Walraven v. State, 250 Ga. 401, 407 (4) (b) (297 SE2d 278) (1982); see also Williams v. State, 261 Ga. 640, 641 (2) (a) (409 SE2d 649) (1991); Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259) (1989); Smith v. State, 232 Ga. App. 290 (501 SE2d 523) (1998).

       (Citations and emphasis omitted.) Walraven v. State, supra, 250 Ga. at 407-408 (4) (b).

       (Citation omitted.) Wilson v. State, 210 Ga. App. 705, 708 (2) (436 SE2d 732) (1993).

       (Citations and punctuation omitted.) Ryan v. State, 226 Ga. App. 180, 181 (2) (486 SE2d 397) (1997).

       269 Ga. 862 (506 SE2d 870) (1998).

       269 Ga. 763 (505 SE2d 1) (1998).

       215 Ga. App. 120 (2) (449 SE2d 667) (1994).

        Rehberger v. State, 269 Ga. 576 (502 SE2d 222) (1998).


text:
    A98A2381.
    RAGLAND v. STATE OF GEORGIA.
    (510 SE2d 587)
   Beasley, Judge.

On March 16, 1998, the State of Georgia instituted a proceeding under OCGA § 16-12-32 to condemn $1,260 in U. S. currency found in the possession of appellant Ragland, based on allegations that this money was used to facilitate or was derived from illegal gambling.

Because Ragland could not be found within the jurisdiction of the court, he was served by publication pursuant to OCGA § 16-12-32 (e), which requires notice of the proceedings to be published once a week for two consecutive weeks. The notice was published on April 17 and 24. Although OCGA § 16-12-32 (f) directs the court to enter a judgment by default if no defense is filed within 30 days after “the last publication,” the notice erroneously stated that the property would be condemned if an answer was not filed within 30 days of the first publication.

The record is silent as to when Ragland learned of this condemnation action, but he did not file an answer denying that the property is subject to forfeiture until June 3. He also moved to dismiss the action on the ground of insufficiency of service of process because of the error in the notice concerning when an answer was due. The court, finding no prejudice to Ragland, as his answer was untimely whether measured from the date of either the first or second publication, denied the motion to dismiss, granted the State’s motion to strike the answer as untimely, and entered judgment in favor of the State. Ragland insists on appeal that he is entitled to dismissal of the complaint. Georgia case law mandates otherwise.

In the context of a garnishment proceeding, Gowen v. Bell held that a summons is not defective though it misleads in directing the garnishee to answer actually beyond the legal time period, as the garnishee is bound to take notice of the applicable law.

In Farley v. State of Ga., a court order included in the process served on the claimant in a condemnation action under OCGA § 16-13-49 directed that an answer be filed no later than 30 days from the filing of the action, as required by OCGA § 16-13-49 (e). But the claimant was also served with a clerk’s summons requiring an answer within 30 days of service of the summons. The answer complied with the summons but not with the order and statute. It was deemed untimely because OCGA § 16-13-49 (b) requires only that a copy of the action be served on a known owner, so the clerk’s summons was surplusage. In Stalvey v. State of Ga.; as in Farley, the claimants’ answers accorded with the clerk’s summons but were untimely under the court’s order and OCGA § 16-13-49 (e). Citing Farley and other cases, this Court rejected claimants’ contention that they were not afforded reasonable notice.

At issue in Serchion v. State of Ga. was OCGA § 16-13-49 (n) (1) and (2), which provide that notice of seizure shall inform the property owner he has 30 days to file a claim, and OCGA § 16-13-49 (n) (3) and (6), which clarify that the claim is timely if filed within 30 days after the second publication of the forfeiture notice. The trial court implicitly ruled that the claim, filed within 30 days from the second publication, was timely. This Court held that the owner thus failed to show how he was harmed by the State’s recitation in its forfeiture notice of the applicable Code section without also expressly informing the owner of the 30-day period for the claims submission.

Decided December 18, 1998.

J. Alfred Johnson, Shondra J. Pruitt, for appellant.

Benjamin F. Smith, Jr., District Attorney, Irvan A. Pearlberg, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

This precedent renders irrelevant Ragland’s complaint that he was misled by the notice of publication, because OCGA § 16-13-32 does not require the notice to specify the time within which an answer must be filed, and the party reading the notice is chargeable with knowledge of the legal requirements. If, when Ragland became aware of the action, he was led to believe the time had expired, he did nothing to confirm that or to rectify the absence of a response. Had he done so, his answer would have been timely. So he cannot show prejudice, other than what was self-inflicted by lack of diligence. His out-of-time answer was not excused, in law, by the clerical error. Thus, despite his argument to the contrary, the notice was “[Reasonably calculated to give him actual notice of the proceedings and an opportunity to be heard.”

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       113 Ga. App. 324 (148 SE2d 52) (1966).

       180 Ga. App. 694, 695 (1) (350 SE2d 263) (1986).

       210 Ga. App. 544, 545 (1) (436 SE2d 579) (1993).

       230 Ga. App. 336 (1) (496 SE2d 333) (1998).

        Milliken v. Meyer, 311 U. S. 457, 463 (61 SC 339, 85 LE 278) (1940).


text:
    A98A1913.
    LAFFODAY v. WINN DIXIE ATLANTA, INC.
    (510 SE2d 598)
   Andrews, Chief Judge.

While working for Gibson Greeting Cards in a Winn Dixie grocery store, Jennifer Laffoday slipped and fell in the produce preparation area as a result of water on the floor. Laffoday sued Winn Dixie Atlanta, Inc. (Winn Dixie) for injuries she sustained in her fall, claiming that the water on the floor was a dangerous condition and that Winn Dixie failed to keep the premises safe. The trial court granted summary judgment in favor of Winn Dixie based upon its finding that Laffoday “had equal or greater knowledge of the specific hazard which resulted in her fall.” For reasons which follow, we reverse.

“[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403) (1997). Thus, the true ground of liability in a slip-and-fall action remains the owner/occupier’s superior knowledge of the hazard. McCoy v. West Building Materials &c., 232 Ga. App. 620, 621 (502 SE2d 559) (1998).

In her deposition, Laffoday testified that at the time of her fall, she had been maintaining the card section of the Winn Dixie store for over one year on behalf of her employer, Gibson Greeting Cards. She normally went to this Winn Dixie store approximately twice a week; however, she was going around four times a week at the time of her fall due to the holiday season. Laffoday’s duties included obtaining overstocked greeting cards from a storage area in the rear of the store. She accessed this storage area by walking through the produce preparation area located behind double doors in the rear of the store.

Laffoday testified that she fell in the produce preparation area while responding to a page over the intercom from the store manager requesting that the Gibson representative report to the front of the store. This page “startled” Laffoday because she had never been paged before. She was also “concerned about a customer perhaps in the front needing attention, being dissatisfied.” As she took her first step to respond to the page, her left foot slipped out from under her and she fell. To the best of her recollection, she was looking towards the door at the time she fell. Laffoday testified that she slipped on water because her clothing was wet after her fall and she saw water on the floor.

Laffoday admitted that the produce department manager, Thomas Rich, warned her before her fall to be careful about water in the produce preparation area. She also admitted she “was aware that this area could collect water” before her fall. She further acknowledged that she knew frozen produce was prepped in this area and that water could leak from those items. Although Laffoday knew there was water in the produce preparation area the day of her fall and before her fall, Laffoday denied that before her fall, she was actually aware of the particular water which caused her to slip.

In a recorded statement taken almost two years after her fall, Laffoday provided a similar account of her fall. “I was walking through the produce area on my way to set up a display. I was paged by the store manager over the intercom. The page startled me. I turned to respond and to walk to the front of the store and as I turned, I slipped in water and fell.”

Thomas Rich, the produce department head, also testified by deposition and admitted that he saw a puddle of water in the area where Laffoday fell approximately ten or fifteen minutes before her fall. He immediately instructed an employee to clean it up. Rich testified that he could still see the moisture after the area was dry-mopped, that it was a “little bit” wet and that the linoleum floor was going to be “a little bit slick” after it had been dry-mopped because the floor could not be completely dried. After Laffoday fell, Rich saw a wet floor sign, which was part of the mop bucket, located approximately three feet from the location of Laffoday’s fall. Another wet floor sign was located by the door. Laffoday testified that she did not see a mop bucket with a wet floor warning before her fall.

Although this case was decided by the trial court before our Supreme Court’s decision in Robinson, “appellate courts must apply the law as it exists at the time of the appellate court’s judgment, even though doing so might change the judgment of the trial court which was correct at the time it was rendered.” Sharfuddin v. Drug Emporium, 230 Ga. App. 679 (1) (498 SE2d 748) (1998).

In this case, the record does not show that Laffoday had knowledge of the hazard which was equal to that of Winn Dixie. Although she knew that water was present on the floor of the produce preparation area before her fall, there is no evidence that she actually knew about the particular wetness which caused her to fall. Winn Dixie, on the other hand, did have actual knowledge of this area because its employee admitted this area was still “a little bit slick” after it was dry-mopped minutes before Laffoday’s fall. Thus, the issue to be resolved in this case is whether Laffoday should have seen the wetness before her fall, i.e., did she exercise ordinary care for her own safety?

In Robinson, supra, the Supreme Court of Georgia held “that an invitee’s failure to exercise ordinary care is not established as a matter of law by the invitee’s admission that he did not look at the site on which he placed his foot or that he could have seen the hazard had he visually examined the floor before taking the step which led to his downfall. Rather, the issue is whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation. We further hold that an invitee presents some evidence of the exercise of reasonable care for personal safety when the invitee explains that something in the control of the owner/occupier and of such a nature that the owner/occupier knew or should have known of its distractive quality caused him not to look to the site of the hazard.” Robinson, 268 Ga. at 748.

Application of these principles requires us to reverse the grant of summary judgment to Winn Dixie. See West Lumber Co. v. Beck, 231 Ga. App. 46 (497 SE2d 647) (1998); Jones v. Ingles Markets, 231 Ga. App. 338, 342 (498 SE2d 365) (1998) (physical precedent only). The evidence in this case is not “plain, palpable, and undisputed,” within the meaning of Robinson, supra at 748, that Laffoday failed to exercise ordinary care for her own safety.

Judgment reversed.

Pope, P. J., and Ruffin, J, concur.

Decided December 22, 1998.

Mullman & Associates, Roy S. Mullman, for appellant.

Fain, Major & Wiley, Gene A. Major, Darryl G. Haynes, for appellee.


text:
    A98A2341.
    MOTOR WAREHOUSE, INC. v. RICHARD.
    (510 SE2d 600)
   Andrews, Chief Judge.

Janet Macintosh Richard, as executrix of the Estate of Robert Donald Macintosh, petitioned the Superior Court of DeKalb County for an order compelling Motor Warehouse, Inc. (Motor Warehouse) to allow the Estate to inspect and copy records of Motor Warehouse. Richard’s petition also requested an award of the costs, including reasonable attorney fees, incurred in obtaining the requested order. In a May 19, 1998 order, the trial court granted Richard’s petition for inspection and also found that Motor Warehouse did not act in good faith when it denied Richard’s request for an inspection of its records. Richard then petitioned for an award of attorney fees and costs pursuant to OCGA § 14-2-1604 and attached an affidavit from her counsel, David Maslia, in support of this petition. In a June 24, 1998 order, the trial court awarded Richard $4,173.84 for the Estate’s costs, including reasonable attorney fees. The trial court also denied Motor Warehouse’s motion to strike David Maslia’s affidavit. The trial court did not hold an evidentiary hearing on the petition for costs.

Motor Warehouse filed a notice of direct appeal from the trial court’s June 24,1998 order on July 7,1998. Richard moved to dismiss this appeal because Motor Warehouse “failed to comply with the discretionary appellate procedure pursuant to OCGA § 5-6-35.” For reasons which follow, we deny Richard’s motion to dismiss this appeal and remand for a hearing on the issue of costs, including attorney fees.

1. Richard asserts the order from which Motor Warehouse appeals is not directly appealable because the amount awarded in the order does not exceed $10,000. OCGA § 5-6-35 outlines the categories of cases subject to discretionary appellate review and one of these categories is “[a]ppeals in all actions for damages in which the judgment is $10,000.00 or less.” OCGA § 5-6-35 (a) (6). Since this action arose as a petition for inspection and copying of corporate records, we find this matter is correctly before us by direct appeal under OCGA § 5-6-34 (a) (1). While the amount of attorney fees awarded by the trial court under OCGA § 14-2-1604 (c) is less than $10,000, a petition for inspection and copying of corporate records is not an action for damages necessitating a discretionary appeal under OCGA § 5-6-35 (a) (6). Cf. Kelly v. Pierce Roofing Co., 220 Ga. App. 391 (469 SE2d 469) (1996); Walker v. Ga. Power Co., 177 Ga. App. 493 (339 SE2d 728) (1986).

We reject Richard’s contention that the Supreme Court of Georgia’s decision in MTW Investment Co. v. Vanguard Properties Financial Corp., 256 Ga. 318 (349 SE2d 749) (1986), mandates a different result. In MTW, the Supreme Court affirmed this Court’s conclusion that attorney fees awarded under OCGA § 13-6-11 are “damages” within the meaning of OCGA § 5-6-35 (a) (6). OCGA § 13-6-11 specifically provides that a jury may award expenses of litigation “as a part of the damages” when the defendant has acted in bad faith, been stubbornly litigious or caused unnecessary trouble and expense.

In this case, the fees were awarded under OCGA § 14-2-1604 (c) which provides: “If the court orders inspection and copying of the records demanded, it shall also order the corporation to pay the shareholder’s costs (including reasonable attorneys’ fees) incurred to obtain the order unless the corporation proves that it refused inspection in good faith because it had a reasonable basis for doubt about the right of the shareholder to inspect the records demanded.” (Emphasis supplied.) Since the attorney fees in this case were awarded as costs under OCGA § 14-2-1604 (c) and not damages under OCGA § 13-6-11, the MTW decision does not control.

2. Having determined that this appeal is properly before us, we now address the propriety of the trial court’s June 24, 1998 order. “A party opposing a claim for attorney fees has a basic right to confront and challenge testimony as to the value and need for legal services.” Mitcham v. Blalock, 214 Ga. App. 29, 32-33 (2) (447 SE2d 83) (1994). See also Oden v. Legacy Ford-Mercury, 222 Ga. App. 666, 669 (3) (476 SE2d 43) (1996). In this case, Motor Warehouse was deprived of this right because the trial court failed to hold an evidentiary hearing on Richard’s petition for the award of costs. We therefore vacate the trial court’s order awarding Richard $4,173.84 and remand this case for an evidentiary hearing on the issue of the amount of costs, including reasonable attorney fees, which should be awarded to Richard under OCGA § 14-2-1604 (c). See Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402 (433 SE2d 606) (1993); First Union Nat. Bank v. Davies-Elliott, Inc., 215 Ga. App. 498, 503 (452 SE2d 132) (1994); Cohen v. Feldman, 219 Ga. App. 90, 92 (464 SE2d 237) (1995).

Judgment vacated and remanded with direction.

Pope, P. J., and Ruffin, J., concur.

Decided December 23, 1998.

Wetzel & Associates, Michael L. Wetzel, for appellant.

Bodker, Ramsey & Andrews, David J. Maslia, for appellee.


author: Judge Harold R. Banke.

text:
    A98A1908.
    ELLIS v. THE STATE.
    (510 SE2d 127)
   Judge Harold R. Banke.

Rick F. Ellis appeals his conviction of theft by conversion. Ellis, an attorney, was appointed trustee of a testamentary trust. The trust was funded with interest and principal from certificates of deposit with an initial value in excess of $125,000 and was to terminate when the client’s children completed their education or his youngest child reached age 25. The client died in 1983 and the trust should have terminated by January 1995.

In 1994, a beneficiary asked Ellis about the status of the trust and Ellis gave an unsatisfactory response. Although demands for accountings were made, Ellis never made an accounting and never made a final distribution of the trust funds to the beneficiaries. After his conviction, Ellis was sentenced to ten years confinement with three years to serve. Held:

1. Ellis claims his trial defense counsel was ineffective. The transcript of the evidence, however, shows that Ellis and his counsel conducted a joint defense: Ellis cross-examined witnesses, made objections, presented legal arguments on motions, and made part of the closing argument; his defense counsel made the opening statement, cross-examined a witness, and made part of the closing argument. Because Ellis participated fully in all parts of his trial, we must reject Ellis’ claims of ineffectiveness of counsel. “ “When a criminal defendant elects to represent himself, either solely or in conjunction with representation or assistance by an attorney, he will not thereafter be heard to assert a claim of ineffective assistance of counsel with respect to any stage of the proceedings wherein he was counsel.’ Mullins v. Lavoie, 249 Ga. 411, 412-413 (290 SE2d 472) (1982).” Williams v. State, 192 Ga. App. 317, 319 (3) (384 SE2d 877) (1989).

2. Ellis’ allegations about deficiencies in the trial court’s charge to the jury were waived when his counsel stated, “we have no objections to charge.” Thomas v. State, 224 Ga. App. 816, 819 (7) (482 SE2d 472) (1997); Dukes v. State, 205 Ga. App. 678, 679 (2) (423 SE2d 295) (1992).

3. The record refutes Ellis’ allegation that the trial court erred by considering a presentencing report containing information about another indictment. The transcript of the sentencing hearing shows that upon Ellis’ objection, the trial court responded that it would not consider the presentence investigative report. Therefore, Ellis’ allegation lacks factual support.

Decided December 4, 1998

Reconsideration denied December 28, 1998

Saliba & Moore, George M. Saliba II, for appellant.

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

4. Ellis’ final enumeration of error asserts the State subpoenaed his wife’s bank records without giving notice to either Ellis or his wife. Ellis raised this issue in the trial court through a motion in limine which the trial court denied. Pretermitting whether the prosecution should have been allowed to obtain Mrs. Ellis’ bank records in this manner, Ellis has not pointed to any place in the record where the State introduced in evidence any documents or records obtained from the bank records. Accordingly, Ellis is not entitled to relief because he has failed to show that he was harmed by this purported error. “Both error and harm must be shown affirmatively by the record to authorize a reversal on appeal. Hollis v. State, 137 Ga. App. 298 (223 SE2d 491) [(1976)].” Robinson v. State, 212 Ga. App. 613, 616 (442 SE2d 901) (1994).

Judgment affirmed.

Johnson, R J., and Smith, J., concur.


text:
    A98A2237.
    CLEVELAND et al. v. ALBANY UROLOGY CLINIC, P.C. et al.
    (509 SE2d 664)
   Judge Harold R. Banke.

William G. Cleveland sued the Albany Urology Clinic, P.C. (“Albany Urology”), and one of its physicians, Timothy S. Trulock, M.D., for medical negligence, misrepresentation and deceit, battery, breach of contract, breach of warranty and guaranty of cure, and fraudulent concealment of Trulock’s “illegal use and abuse of cocaine, substance abuse problem, and impairment.” His spouse, Deloria Cleveland, asserted a loss of consortium claim. The Clevelands (collectively “Cleveland”) claimed that Trulock negligently performed unnecessary surgery under general anesthesia for non-existent penile cancer and thereby exacerbated Cleveland’s medical condition. Cleveland alleged that Trulock violated OCGA § 31-9-6.1 by failing to accurately disclose his condition, possible modes of treatment, material risks, alternative procedures and treatments, and his prognosis without the surgery. Charles E. Horton, Jr., M.D., a board certified urologist, testified that Trulock breached the applicable standard of care in both his diagnosis and treatment of the 36-year-old Cleveland. According to Horton, the proper diagnosis of Cleveland’s condition was Peyronie’s Disease which could have been confirmed with diagnostic testing. In Horton’s expert opinion, as a result of Trulock’s improper surgical treatment, Cleveland suffers from a “painful curvature of the penis on erection and resulting inability to have intercourse.”

Prior to trial, finding the pleading defective under OCGA § 31-9-6.1 (a), the court dismissed the claim for battery. The court excluded evidence of a prior lawsuit against Trulock from which the jury might have inferred that Trulock’s medical judgment had been impaired by the use and abuse of cocaine.

The jury determined that Trulock and Albany Urology had engaged in “fraud, misrepresentation, or concealment of material facts” but found in favor of the defendants on the medical negligence claim. The jury awarded $650,000 in damages for Cleveland’s pain, suffering, injuries, and medical expenses and $100,000 on the spousal claim. In a separate proceeding, the jury awarded $35,000 in punitive damages against the defendants.

Albany Urology and Trulock moved for judgment notwithstanding the verdict. They asserted that the claim for fraudulent concealment or misrepresentation was not supported by law or evidence because Trulock had no duty to disclose the fact that he was an occasional user of cocaine. They argued that there was no evidence that Trulock was under the influence of or was impaired by cocaine while treating Cleveland as his patient. They also contended that the loss of consortium claim was not supported by any evidence of proximate causation.

In reversing the jury verdict, the trial court held that because Trulock had no duty to disclose that he was using cocaine, the claim for fraud failed as a matter of law. The court also determined that the “evidence fails to support either a claim for loss of consortium or the requisite intent to harm that is essential to a claim of fraud.” Cleveland appeals. Held:

1. Cleveland contends that the trial court erred in granting Trulock and Albany Urology’s motion for j.n.o.v. In reviewing the grant of j.n.o.v., this Court must construe the evidence in the light most favorable to the party who obtained the jury verdict. Peters v. Hyatt Legal Svcs., 220 Ga. App. 398, 400 (1) (b) (469 SE2d 481) (1996). Where there is any evidence to support the verdict, we must affirm. Lee v. Newman, 240 Ga. 483 (241 SE2d 241) (1978).

Notwithstanding the argument to the contrary, we find that the claim for negligent concealment is supported by law. It is well-settled that a physician and his patient share a confidential relationship. Keenan v. Plouffe, 267 Ga. 791, 794 (2) (482 SE2d 253) (1997). Where a confidential relationship exists, as here, a person’s silence when he should speak, or his failure to disclose what he ought to disclose, is as much a fraud in law as an actual affirmative false representation. Morris v. Johnstone, 172 Ga. 598, 605 (158 SE 308) (1931). Moreover, “ ‘[a] confidential relationship between the parties . . . lessens, if not negates, the necessity for showing active fraud.’ (Cit.)” Arnall &c. v. Health Svc. Centers, 197 Ga. App. 791, 793 (2) (399 SE2d 565) (1990).

Where a patient suffers injury at the hands of a physician as a result of consent to treatment obtained through the physician’s misrepresentation, non-disclosure, or concealment of a material fact which the patient has a right to know, the patient may recover damages for fraud. Smith v. Wilfong, 218 Ga. App. 503, 507 (2) (462 SE2d 163) (1995) (consent not valid if obtained by fraudulent misrepresentations of material facts). “Fraud, accompanied by damage to the party defrauded, always gives a right of action to the injured party.” OCGA § 51-6-1.

We recognized in Composite Bd. of Med. Examiners v. Hertell, 163 Ga. App. 665, 667-668 (3) (295 SE2d 223) (1982) that even absent any harm to the patient, a physician’s act of forming a medical judgment while under the influence of alcohol or drugs “constituted a departure from the minimal standards of acceptable and prevailing medical practice.” In fact, OCGA § 43-34-37 (a) (13) expressly authorizes the State Board of Medical Examiners to discipline licensed physicians who “[b]ecome unable to practice medicine with reasonable skill and safety to patients by reason of . . . use of alcohol, drugs, narcotics, chemicals.”

In this case, the nature and extent of Trulock’s impairment and its alleged impact on his care of Cleveland were disputed issues of fact shielded from full disclosure by Trulock’s reliance upon a constitutional privilege. During his deposition, Trulock repeatedly invoked his right against self-incrimination concerning whether he was using cocaine during the time he was diagnosing and treating Cleveland. When specifically asked whether he was using cocaine during the time he rendered professional services to Cleveland, Trulock responded, “I respectfully refuse to answer on the ground that my answer may tend to incriminate me.” Similarly, when asked, “Did you use cocaine more than once a day or less than once a day during the time you were Mr. Cleveland’s physician?” Trulock refused to answer.

At trial, Trulock selectively responded to questions about his cocaine addiction. Although Trulock did admit to using cocaine seven or eight times while treating Cleveland, he stated that figure was “just an estimate.” When asked “When’s the last time you used cocaine before you operated on Mr. Cleveland,” Trulock conceded that he did not “have a clue.” When asked, ‘We’re not ever going to get you to tell us the whole truth about your cocaine use, are we?” Trulock answered, “No, sir.”

From Trulock’s privileged refusal to testify, the jury was entitled to draw an inference that Trulock was illegally using cocaine while rendering professional services to Cleveland. Jordan v. State, 195 Ga. App. 405, 406 (1) (393 SE2d 461) (1990). This unfavorable inference is “based upon an implied admission that a truthful answer would tend to prove that the witness had committed the act.” Simpson v. Simpson, 233 Ga. 17, 20 (209 SE2d 611) (1974).

Trulock admitted that the use of cocaine could impair a physician’s performance and could alter a physician’s judgment and no evidence showed otherwise. When asked about the propriety of concealing his cocaine use from his patients, Trulock responded that “the patient should know any factor that will impact on their patient care.” Yet, Trulock admitted that he never informed Cleveland that he was using cocaine during the time Cleveland was his patient. Cleveland emphatically testified that he would not have consented to the surgery if Trulock’s cocaine use had been revealed to him.

Trulock’s office notes, Cleveland’s medical records, and the consent form fail to show that Trulock considered a differential diagnosis of possible Peyronie’s Disease. According to Todd S. Jarrell, M.D., the performance of surgery, as here, at that stage of the disease deviated from the proper standard of care. Jarrell testified that Cleveland’s scar resulting from the surgery performed by Trulock could be responsible for a leftward curvature of his penis. According to Cleveland, he had never experienced the excruciating pain and the curvature problem until his first erection after Trulock operated. Cleveland testified that when he went to Albany Urology six months after the surgery to personally retrieve his medical records, Trulock admitted to him that it was possible that the surgery caused his problem.

Plainly, in providing treatment to Cleveland, Trulock held himself out to be a licensed, qualified urologist. Whether in so doing, Trulock’s conduct amounted to a “failure to disclose” or fraudulent concealment necessitated jury determination. Sutlive v. Hackney, 164 Ga. App. 740, 742 (297 SE2d 515) (1982) (jury issue where breast implant patient alleged her physician wrongfully held himself out to be a licensed, qualified plastic surgeon and that this conduct amounted to a “failure to disclose” and a fraudulent misrepresentation).

In these circumstances, we believe the jury was entitled to resolve whether Trulock fraudulently concealed material facts from Cleveland, whether Trulock misrepresented himself as a qualified urologist, and whether by so doing Cleveland suffered damages. Sutlive, 164 Ga. App. at 742. Inasmuch as the record contains some evidence that Trulock exacerbated Cleveland’s medical problems, we cannot say that the record is devoid of evidence of causation. Atlanta Ob. & Gyn. Group v. Coleman, 260 Ga. 569, 570 (398 SE2d 16) (1990) (jury’s verdict must be restored where evidence is conflicting on causation issues). We find that when construed most favorably toward Cleveland, the record contains evidence supporting the verdict and the judgment entered thereon. Peters, 220 Ga. App. at 400 (1) (b). Therefore, we reverse. Griffin v. Kangaroo, Inc., 208 Ga. App. 190, 191 (1) (430 SE2d 82) (1993).

Notwithstanding the contrary claim, it was not necessary that Cleveland’s wife testify since the record contains evidence to support her claim for loss of consortium. Damages for loss of consortium, like damages for pain and suffering, are general damages whose measure must be left to the enlightened conscience of the jurors. Hightower v. Landrum, 109 Ga. App. 510, 516 (5) (b) (136 SE2d 425) (1964). In making the award, jurors may take into consideration the nature of the services, society, and companionship affected as well as other circumstances. Stubbs v. Harmon, 226 Ga. App. 631, 633 (1) (b) (487 SE2d 91) (1997). Review of the instant record reveals no basis for upsetting the jury’s determination on this claim. Id.

Notwithstanding the assertion to the contrary, the fraud claim was separate and distinct from any claim for medical negligence. Boggs v. Bosley Med. Institute, 228 Ga. App. 598, 600 (1) (a) (492 SE2d 264) (1997). A defense verdict on the medical negligence claim did not preclude a plaintiff’s verdict on the fraud count. Id.

2. Cleveland contends that the trial court erred in granting the defendants’ motion to dismiss Count 3, the claim for battery. The court found that because the expert affidavit provided pursuant to OCGA § 9-11-9.1 failed to specifically set forth a violation of the Georgia Medical Consent Law (OCGA § 31-9-6.1), that affidavit was defective insofar as it applied to Count 3 (the claim for battery). We disagree.

Decided November 19, 1998

Reconsideration Denied December 28, 1998

William S. Stone, Thomas C. Earnest, Kevin R. Dean, for appellants.

Watson, Spence, Lowe & Chambless, Thomas S. Chambless, Dawn G. Benson, Donaldson, Bell & Pickett, George P. Donaldson III, Coleman, Talley, Newbern, Kurrie, Preston & Holland, Wade H. Coleman, for appellees.

When “an allegation for negligence” is premised on a violation of the informed consent law then “the expert’s affidavit required by Code Section 9-11-9.1 shall set forth that the patient suffered an injury which was proximately caused by the surgical or diagnostic procedure and that such injury was a material risk required to be disclosed under this Code section.” OCGA § 31-9-6.1 (d) (3). But a claim for battery faces no such procedural impediment because it is not “an allegation for negligence.” Since the allegation was not grounded in professional negligence, no OCGA § 9-11-9.1 affidavit was necessary. Newton v. Porter, 206 Ga. App. 19, 20 (424 SE2d 323) (1992). See Hodge v. Jennings Mill, Ltd., 215 Ga. App. 507, 508 (451 SE2d 66) (1994); Joiner v. Lee, 197 Ga. App. 754, 756 (399 SE2d 516) (1990). Hence, the trial court erred in dismissing the battery count.

Judgment reversed.

Johnson, P. ,J., and Smith, J, concur.

       Peyronie’s Disease is a condition of unknown origin resulting in fibrous collagen deposits which ultimately become calcified in the tunica of the penis secondary to an inflammatory process. It is a relatively benign condition which usually resolves itself and responds to conservative therapy using Vitamin E.

       The verdict form apparently combined two distinct claims alleged in Cleveland’s complaint. In Count 2, Cleveland asserted a claim for misrepresentation and deceit on several grounds. In Count 6, Cleveland asserted a separate claim for fraudulent concealment premised solely on Trulock’s failure to disclose his use and abuse of cocaine.

       During the trial, Trulock admitted that he was currently being supervised pursuant to a “private consent order” entered in May 1996 by the Composite Board of Medical Examiners.

       About two years after the surgery performed here, Trulock suffered a cocaine induced seizure necessitating emergency hospitalization and subsequently entered a substance abuse program.

       Cleveland testified that Trulock stated: “This is simple. I’ll make a half-inch incision. This little nodule is just under the skin in the fatty tissue and I’ll give a half-inch incision. I’ll give you a couple of stitches, and you’ll be back to work Monday morning.” Trulock did not inform Cleveland that he had never previously performed exactly this surgical procedure. The consent form does not mention Peyronie’s Disease as an alternative diagnosis and fails to disclose disfigurement occurring during erection as a material risk. As the “practical alternative of this procedure” (to remove the lump from penis) the consent form offers no alternatives except: “do nothing and accept the consequences of the patient’s medical condition.” Compare disclosures required by OCGA § 31-9-6.1 (a) (l)-(6).


text:
    A98A1778.
    MARTIN v. THE STATE.
    (510 SE2d 602)
   Andrews, Chief Judge.

Kelly Marie Martin appeals from the judgment entered on her conviction of one count of interference with custody and one count of cruelty to children by biting four-year-old C. M. We affirm.

1. Viewed in favor of the verdict, the evidence was that C. M. was the child of David Martin and Dora Lee Parrish. Parrish and her husband, who was not Martin, were in the process of moving from Oklahoma to Georgia and, during one trip in February 1994, Parrish visited defendant Kelly Martin and co-defendant Karl Andrew Martin, Kelly’s husband. Andrew Martin is the brother of David Martin. During this visit, the Martins and Parrish discussed C. M.’s staying with the Martins. After thinking about it, Parrish agreed that C. M. would stay with the Martins while she and her husband moved. When Parrish completed moving in April 1994, she contacted Kelly Martin to attempt to get C. M. back. She was told that the child was in camp and would not be back for a week, which was not true.

Parrish visited the Martins’ trailer and was told by Kelly Martin that C. M. was at someone else’s home and gave her directions, although the child was locked in a room in the trailer at the time. After Parrish obtained a warrant, the Martins were stopped by police and C. M. was taken to the police station with the Martins. Although it was April and not cold, C. M. was wearing a long-sleeved shirt and long pants. Officer Rasmussin examined C. M. and discovered numerous bruises and bite marks on the child’s body, including several on her face which were covered with makeup.

Dr. Cortez examined C. M. and found extensive bruising and bite marks. The bruises were in various stages of healing, indicating they had been imposed over a period of time. Dr. Cortez opined that the bite marks she found were made by an adult, based on the size of the marks. It was further her opinion that the injuries she found were not the result of C. M.’s falling, as contended by Martin.

The evidence was legally sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Mitchell v. State, 233 Ga. App. 92 (1) (503 SE2d 293) (1998).

2. Martin’s first enumeration is that the court erred by using the word “alone” in its charge to the jury that “to warrant a conviction on circumstantial evidence alone, the proven facts must not only be consistent with the theory of guilt, but must exclude every other reasonable theory other than the guilt of the accused.” (Emphasis supplied.)

The charge given, however, was precisely that requested by Martin in her Request No. 6 and she will not now be heard to complain regarding it.

“ ‘Asserted prejudice based upon induced error is impermissible. (Cit.)’ [Cit.]” Sharp v. State, 183 Ga. App. 641, 643 (3) (360 SE2d 50) (1987).

We note that the charge given is the functional equivalent of the rule contained in OCGA § 24-4-6 and was not error. Lowe v. State, 267 Ga. 180, 181 (3) (476 SE2d 583) (1996).

3. The second enumeration is that Martin’s due process rights were violated by admission of photographs and á videotape showing C. M.’s injuries.

The objection made below to the photographs was that the prejudicial impact outweighed their probative value and they would inflame the jury. The videotape was objected to only as “hearsay,” which is considered in Division 4.

The photographs of C. M. each showed different areas of her body and the numerous bruises and bite marks on different areas and were relevant to the charges of cruelty to a child. “Relevant evidence is not subject to an objection that it might inflame the minds of the jury or prejudice the jury; ‘the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value.’ (Citation and punctuation omitted.) [Cits.]” Johnson v. State, 224 Ga. App. 568, 569-570 (1) (481 SE2d 268) (1997). This is so even if some of the evidence is cumulative, as Martin argues. McKinney v. State, 213 Ga. App. 498, 500-501 (3) (445 SE2d 550) (1994).

4. Martin contends that the admission of the videotape of C. M.’s interview with Ms. Redding of DFACS violated her right to confrontation, relying on Rolader v. State, 202 Ga. App. 134, 139 (1) (413 SE2d 752) (1991), because there was insufficient indicia of reliability shown.

“Indicia of reliability must spring from the circumstances of the statement. Godfrey v. State, 258 Ga. 28, 29 (365 SE2d 93); see Knopp v. State, 190 Ga. App. 266 (2) (378 SE2d 703). The factors which the court may consider, when applicable, include but are not limited to the following: (1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same; and, the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child. Compare Hunter v. State, 194 Ga. App. 711, 712 (391 SE2d 695); Ortiz v. State, 188 Ga. App. 532, 535 (3) (374 SE2d 92); and Newberry v. State, [184 Ga. App. 356, 358 (4) (361 SE2d 499)]; see also State v. Sorenson, 421 NW2d 77 (S.C. Wise.). These factors are to be applied neither in mechanical nor mathematical fashion, but in that manner best calculated to facilitate determination of the existence or absence of the requisite degree of trustworthiness. Nor does the fact that the statement is made days, weeks, or even ‘several months after the alleged incident,’ in and of itself make the statement unreliable. Newberry, supra at 358 (2).” Gregg v. State, 201 Ga. App. 238, 240-241 (2) (b) (411 SE2d 65) (1991).

Decided December 28, 1998.

Chapman & Pope, Daniel C. Chapman III, for appellant.

Here, Redding interviewed C. M. in a room at the police station furnished with a couch, numerous dolls and other items for a child to play with. The interview was on April 21, after Martin’s arrest on April 18. Redding sat on the floor with C. M. while she talked to her. Sgt. Thurston was present and operated the video recorder and asked only one or two questions. Both Redding and Thurston were dressed in civilian clothing. The questions asked by Redding were not suggestive nor were any threats or promises made. C. M. was reluctant to discuss her injuries, but did implicate Kelly and Andrew Martin. While there were some inconsistencies between C. M.’s initial statement given to Redding on April 18 and the videotape, these were matters for the jury’s consideration in weighing the evidence, not determinative of admissibility. Medina v. State, 234 Ga. App. 13, 14 (1) (a) (505 SE2d 558) (1998); Duncan v. State, 232 Ga. App. 157, 159 (2) (500 SE2d 603) (1998).

There were sufficient indicia of reliability for admission of the videotape and the court made the child available to Martin for cross-examination under the procedures of Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987). There was no error. Knight v. State, 210 Ga. App. 228 (1) (435 SE2d 682) (1993).

5. Finally, Martin contends that the court excluded relevant evidence she attempted to introduce concerning C. M.’s diet. A review of the record, however, shows that, when the State objected to this evidence, Martin’s counsel did not pursue the issue, but stated “I’ll move on.” Therefore, there is nothing in this regard for us to review. Cf. Foster v. State, 226 Ga. App. 334, 335 (1) (486 SE2d 635) (1997).

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.

Tommy K. Floyd, District Attorney, Mary Evans-Battle, Assistant District Attorney, for appellee.

       A mistrial was declared on a second count of cruelty to children by striking C. M. after the jury was unable to reach a verdict.