text:
    A92A1967.
    THREE NOTCH ELECTRIC MEMBERSHIP CORPORATION v. SIMPSON et al.
    (430 SE2d 52)
   Birdsong, Presiding Judge.

Three Notch Electric Membership Corporation appeals the trial court’s grant of judgment n.o.v. to Roy Thomas Simpson and Sherry Simpson on the issue of comparative negligence and also appeals the award of prejudgment interest. The Simpsons sued Three Notch for the wrongful death of their son, Craig, who was electrocuted when a television antenna he was attempting to put up came in contact with one of Three Notch’s high voltage lines. A separate wrongful death action was pursued for the death of their other son.

The evidence shows that the night they moved into a new home both Craig and his brother were electrocuted while attempting to put up a television antenna attached to a 33-foot-long mast. As the mast could “telescope,” it could be put up either by extending the antenna vertically to the desired height or the mast could be extended to the desired height and “walked up” until it was perpendicular to the ground. While the two brothers apparently were “walking” up the 33-foot mast, the mast came in contact with Three Notch’s high voltage lines about 26 feet above the ground.

At the close of all the evidence, the Simpsons moved for a directed verdict on the issues of Craig Simpson’s comparative negligence, but the trial court denied the motion and charged the jury on the issue. Eventually, the jury returned a special verdict which found that both Three Notch and Craig Simpson were negligent and that Three Notch was 75 percent at fault and Craig 25 percent at fault. The jury also found the full value of Craig’s life was $225,000, the reasonable value of his services was $2,000, and the necessary medical and funeral expenses were $2,834.

After judgment was entered for $172,375.87, or 75 percent of the total damages found by the jury, the Simpsons moved for judgment n.o.v. on the issue of Craig’s comparative negligence and for additur of prejudgment interest based upon a pretrial demand under OCGA § 51-12-14 for $200,000. The motion contended no evidence supported the jury’s determination that Craig Simpson was negligent; accordingly, the Simpsons were entitled to the full damages awarded by the jury. As this award exceeded the amount of the Simpsons’ unliquidated damages interest demand, the award of prejudgment interest was required.

After the trial judge granted the Simpsons’ motion for judgment n.o.v. on the issue of comparative negligence, the full value of the verdict was incorporated into the judgment. The result of this was also to put into effect the Simpsons’ unliquidated damages demand for $200,000. Therefore, the trial court entered judgment for the Simpsons in the amount of $229,834.50 plus $42,279.45 in prejudgment interest.

Three Notch’s appeal contends the grant of judgment n.o.v. was not authorized because there was evidence supporting the verdict and prejudgment interest was not authorized because the correct judgment was for less than the amount of the prejudgment interest demand. Held:

1. Whether the trial court properly granted the Simpsons’ motion for judgment n.o.v. depends upon whether there was any evidence from which the jury could conclude that Craig Simpson was negligent and was 25 percent at fault. In determining whether a trial court has properly granted judgment n.o.v., this court must review and resolve the evidence, and any doubts, or any ambiguities in favor of the verdict. Further, judgment n.o.v. is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom demands a certain verdict. OCGA § 9-11-50 (a); Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268). In this process we use the same standards as we would for reviewing the grant of a directed verdict. Pendley v. Pendley, 251 Ga. 30 (302 SE2d 554); Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 157 (256 SE2d 916).

Thus, the trial court’s grant of the motion of judgment n.o.v. can be sustained only if there was no evidence supporting this aspect of the verdict. The Simpsons argue that there was no evidence because the law presumes Craig was not negligent and Three Notch did not carry its burden of overcoming this presumption by proving by a preponderance of the evidence that Craig was negligent. Instead, they contend there were many possible explanations for Craig’s death other than his negligence.

Review of the transcript shows the parties stipulated that on the date of his death at between 8:30 p.m. and 9:00 p.m. Craig came into contact with Three Notch’s electric distribution lines while erecting the television antenna with his older brother, and there were no eyewitnesses. Although the Simpsons presented expert testimony concerning the average person’s awareness of the dangers of power lines, we find evidence in the record from which the jury could conclude that Craig’s awareness exceeded that of the average person. Indeed, there was testimony that from a very early age Craig had worked around electrical equipment, had been warned about the dangers of electricity, and had been specifically advised to keep away from power lines while putting up this antenna. Further, the evidence shows that on two prior occasions Craig assisted his brother and father in putting up this particular antenna at other locations, and that he had been warned that power lines could kill him. Craig’s father testified that he felt comfortable that his son was aware of the dangers of electricity and what it could do to you and that part of the training for putting up the antenna was to look for wires. Accordingly, while there was no direct evidence from which to conclude that Craig was aware of high voltage wires generally, there was evidence from which the jury could conclude that Craig knew to look out for wires before he attempted to install the antenna.

Additionally, there was evidence that on the night in question soon after he discovered the bodies, Craig’s father looked up and saw the wires above the boys. He testified that the wires were not easy to see, that one had to look to see them, but one could see the wires if one really looked. Additionally, the father’s deposition was read at which he testified that after he found the boys, he looked up and saw the wires. Therefore, although there was evidence from others who arrived on the scene later that the wires were not visible, this was direct evidence that the wires were visible immediately after the accident and that the wires could be seen if one looked for them. Thus, there was at least conflicting evidence on whether the power lines could be seen.

Although negligence is not to be presumed, but must be proven (Neal v. Miller, 194 Ga. App. 231, 232 (390 SE2d 125)), issues of negligence, diligence, and exercise of ordinary care for one’s protection, except in plain and indisputable cases, ordinarily are to be decided by the jury. Church’s Fried Chicken v. Lewis, supra at 156. Thus, unless this was one of those extraordinary cases, it was for the jury to decide whether Craig exercised the degree of care an ordinarily prudent person would have. See OCGA § 51-1-2.

The trial court was authorized to reject the jury’s verdict only if one reasonable conclusion could have been reached on whether Craig was negligent. If there is conflicting evidence, or insufficient evidence to make a “one-way” verdict proper, judgment n.o.v. cannot be awarded, and in considering whether only one conclusion could be reached on Craig’s negligence, the trial court (and this court) is required to view the evidence in the light most favorable to the verdict. Church’s Fried Chicken v. Lewis, supra at 159. Further, neither the trial court nor this court has the authority to weigh the evidence or to decide any issues of fact (Life Ins. Co. of Ga. v. Dodgen, 148 Ga. App. 725, 727-728 (252 SE2d 629)), and judgment n.o.v. is not authorized when the evidence merely preponderates toward a certain verdict. Morris v. Futch, 193 Ga. App. 132, 133 (386 SE2d 905). When there is room for a difference of opinion between reasonable men whether negligence should be inferred, the right to draw this inference is peculiarly within the province of the jury. Bryant v. Colvin, 160 Ga. App. 442, 444 (287 SE2d 238). Consequently, based upon the evidence discussed above, this is not a case in which it can be stated that there was no evidence from which one can conclude a judgment that Craig was not negligent was demanded, and therefore, the judgment n.o.v. was not authorized. Neiswonger v. Janics, 196 Ga. App. 607, 609 (396 SE2d 553).

Decided March 8, 1993 —

Reconsideration denied March 30, 1993.

Hugh B. McNatt, Thomas H. Baxley, Troutman, Sanders, Lockerman & Ashmore, Robert L. Pennington, for appellant.

William S. Stone, Thomas E. Sasser III, for appellees.

2. Since the judgment n.o.v. was not authorized, the judgment of the trial court did not satisfy the criteria for award of prejudgment interest under OCGA § 51-12-14. Accordingly, the judgment must be modified to reflect the verdict of the jury. Therefore, the judgment of the trial court is reversed and this appeal remanded to the trial court with direction to enter judgment in accordance with the jury verdict.

Judgment reversed and remanded with direction.

Beasley and Andrews, JJ., concur.


source: Caselaw Access Project

author: Beasley, Judge. Birdsong, Presiding Judge,

license: Public Domain

text:
    A92A1971.
    MILLSAP v. AMERICAN FAMILY CORPORATION et al.
    (430 SE2d 385)
   Beasley, Judge.

Millsap instituted a shareholder’s derivative detion against the directors and officers of American Family Corporation. This appeal is from an order of the trial court granting defendants’ motion to dismiss and entering judgment of dismissal.

The complaint alleged that defendants breached their fiduciary duties by committing four specified acts of mismanagement of corporate assets for the benefit of the company’s chairman and chief executive officer, John B. Amos. The board of directors adopted a resolution appointing a “special litigation committee” (the committee) comprised of outside directors to investigate plaintiff’s claims and to recommend whether the company should undertake litigation against Amos. The resolution clothed the committee with full authority to act as the board of directors and provided for the appointment of special counsel to render advice.

Upon completion of its investigation, the committee reported that the board and Amos had acted in good faith with respect to the allegations. It determined as a matter of business judgment that the specified transactions had furthered the interests of the company. It concluded no action should be brought by the company against any officer or director by reason of the complaint, except that collection of $64,000 should be pursued against Amos as additional interest owed by virtue of late payment of a promissory note he had executed in favor of the company. After Amos paid the $64,000, the committee directed the company to move for dismissal of the lawsuit and to release all defendants in the action from liability for all claims relating to the litigation.

1. Appellant contends that the trial court erred in dismissing the action based on the retroactive application of OCGA § 14-2-744.

The trial court’s order specifies: “[U]nder Georgia law both before and after the adoption of the new Business Corporation Code effective July 1, 1989, special litigation committees are authorized.”

The present complaint was filed on December 1, 1988. The new Georgia Business Corporation Code, OCGA § 14-2-101 et seq., became effective on July 1, 1989. (Ga. L. 1988, p. 1070, § 1.) OCGA § 14-2-744 (a) of the new Code specifically vests the trial court with discretion to dismiss a derivative proceeding if a committee of independent directors (see OCGA § 14-2-744 (b)) “determin[es] in good faith after conducting a reasonable investigation upon which its conclusions are based that the maintenance of the derivative suit is not in the best interests of the corporation.” There was no counterpart to this provision in the former Business Corporation Code (Ga. L. 1968, p. 565, § 1).

OCGA § 14-2-147 of the former Corporation Code established the statutory authority for the formation of the committee. Under that Code section, if the articles of incorporation or bylaws so provide, the board of directors by resolution may designate an executive or other committee from among its members to exercise the authority of the board to the extent provided in such resolution. Although certain functions of the board were nondelegable, OCGA § 14-2-147 (a) (1) to (4), the scope of the committee’s authority otherwise was determined by reference to the resolution establishing it. Comment to OCGA § 14-2-147. Creation of a committee to review and make recommendations with respect to pending litigation was not a prohibited function.

Appellant acknowledges that prior to the effective date of the 1989 Code, Georgia followed the majority of states in applying the test of Zapata Corp. v. Maldonado, 430 A2d 779 (Del. 1981), to determine the propriety of dismissing a shareholder derivative action based upon the recommendation of a special litigation committee. Zapata was decided under a Delaware provision (8 Del. C. § 141 (c)) which was essentially identical to former OCGA § 14-2-147. (Indeed, the Code Revision Committee comment to OCGA § 14-2-744 recognizes that the new Code provision is predicated in large measure on Zapata.) The Delaware court concluded that a board committee authorized under § 141 (c) (analogous to our former OCGA § 14-2-147) is empowered to make decisions regarding corporate litigation. Under Zapata, the burden is on the corporation to show that an independent litigation committee conducted a good faith investigation of the claims and established a reasonable basis for its conclusions. Id. at 788.

The trial court correctly determined that the special litigation committee had properly delegated authority under Georgia law to act for the board.

2. Appellant contends that the trial court erred in dismissing the complaint based on the recommendation of a special litigation committee which was not independent.

Appellant relies on Delaware authority to articulate the standard of director independence: “[A] director is independent when he is in a position to base his decision on the merits of the issue rather than being governed by extraneous considerations or influences.” Kaplan v. Wyatt, 499 A2d 1184, 1189 (Del. 1985). See also Aronson v. Lewis, 473 A2d 805, 815 (17) (Del. 1984). Our new Corporation Code is instructive in establishing criteria for independence. Under OCGA § 14-2-744 (c), a director is not disqualified as lacking independence if (1) nominated or elected by directors who are not independent; (2) the director is named as a defendant in the derivative proceeding; or (3) if the director approved the action being challenged in the derivative proceeding so long as the director did not receive a personal benefit as a result of the action.

Appellee met its burden of showing its committee members were independent. Each count of the complaint alleged a benefit accruing to Amos personally. Although appellant has shown that the committee members may have initially approved the challenged action, there was no showing that they likely would or actually did benefit from it personally or that they were incapable of exercising independent business judgments free from personal interests. The evidence supports the trial court’s ruling that the committee members “are both disinterested and independent in respect of their work on the committee.”

3. Appellant contends that the dismissal was not authorized because the committee did not conduct a good faith investigation or have a reasonable basis for its conclusions.

Appellant cites to certain inconsistencies in the committee’s report and the deposition testimony of the members with respect to the investigative procedure, and further complains that the committee interviewed only eight of the twenty-two named defendants. Similar assertions were made in Kaplan v. Wyatt, supra at (6). Applying an abuse of discretion analysis, the reviewing court upheld the dismissal of a shareholder derivative action where the committee examined all the allegations in the complaint and submitted a detailed report which supports the conclusion that proceeding with the litigation would not be in the best interests of the corporation. Id. at 1191 (7). Likewise, in the present case, the committee reached its conclusions based on detailed, documented investigation. “ ‘No principle of law is more firmly fixed in our jurisprudence than the one which declares that the courts will not interfere in matters involving merely the judgment of a majority in exercising control over corporate affairs.’ [Cit.]” Tallant v. Executive Equities, 232 Ga. 807, 810 (209 SE2d 159) (1974).

The trial court in the present case properly exercised its discretion in dismissing the present proceeding based on the recommendation of the committee. See Peller v. Southern Co., 911 F2d 1532 (11th Cir. 1990), which applied an abuse of discretion standard in reviewing the district court’s denial of a motion to dismiss a shareholder derivative action under F.R.C.P. 23.1. See also Meg Shevach, Comment, Deciding Who Should Decide to Dismiss Derivative Suits, 39 Emory L. J. 937 (1990); Annotation, 22 ALR4th 1206, “Propriety of Termination of Properly Initiated Derivative Action by ‘Independent Committee’ Appointed by Board of Directors Whose Actions (or Inaction) are Under Attack.”

4. Appellant contends the trial court erred in granting the motion to dismiss based upon its own independent business judgment: (Although this second tier analysis is discretionary under Delaware law, see Zapata and Kaplan, the Comments of the Georgia Code Revision Committee indicate that OCGA § 14-2-744 of the 1989 Corporation Code does not so provide.)

The trial court’s order specified: “The Court does not deem it necessary to exercise its own independent business judgment with respect to the matters that the plaintiff has sought to raise in this action . . . ,” but nevertheless expressed agreement with the committee that the matter should be dismissed. Contrary to appellant’s assertions, the court was not laboring under the mistaken belief that its business judgment is dispositive. It is superfluous.

5. Finally, appellant contends that because the trial court considered matters outside the pleadings in granting the motion to dismiss, the motion must be considered as one for summary judgment and the standard of review should be that set forth in OCGA § 9-11-56. See generally Thrift v. Maxwell, 162 Ga. App. 237 (1) (290 SE2d 301) (1982); Blasingame v. Blasingame, 249 Ga. 791 (294 SE2d 519) (1982).

The motion to dismiss was brought pursuant to OCGA § 9-11-12 (b) (6), asserting that under the business judgment rule and the decision of the committee, appellant’s complaints have been resolved and she therefore lacks standing to proceed against the corporation. The Delaware court in Zapata recognized that the motion to dismiss under these circumstances “is perhaps best considered as a hybrid summary judgment motion for dismissal because the stockholder plaintiff’s standing to maintain the suit has been lost. But it does not fit neatly into a category described in Rule 12(b) .. . nor does it correspond directly with Rule 56 since the question of genuine issues of fact on the merits of the stockholder’s claim are not reached.” Zapata, supra at 787 (8). With respect to pre-1989 Georgia Corporation Code law, we adopt in part the conclusion reached in Zapata: “If the Court determines either that the committee is not independent or has not shown reasonable bases for its conclusions, or, if the Court is not satisfied for other reasons relating to the process, including but not limited to the good faith of the committee, the Court shall deny the corporation’s motion. If, however, the Court is satisfied under Rule 56 standards that the committee was independent and showed reasonable bases for good faith findings and recommendations . . . ,” id. at 789 (10), the motion will be granted.

Judgment affirmed.

Andrews, J., concurs. Birdsong, P. J., concurs specially.

Birdsong, Presiding Judge,

concurring specially.

I reluctantly concur. I would point out that the special litigation committee was composed of: Elmer Loftin, a director since 1956; Harry C. Schwob, a director since 1965; Kenneth S. Janke, Sr., a director since 1989; Cesar E. Garcia, a director since 1987. All directors were compensated for service on the board of directors. All profited by being members of the board of directors.

To appoint (as apparently they could under Georgia law) a special litigation committee from the board of directors is like making the fox responsible for guarding a hen house.

This quirk in the law (appointing directors to a committee to investigate) from sitting directors should be changed; however, this is for the legislature.

Decided March 12, 1993 —

Reconsideration denied March 30, 1993

Willis, McKenzie & Long, C. Jerry Willis, for appellant.

Rogers & Hardin, C. B. Rogers, Bowles & Bowles, Jesse G. Bowles III, Hatcher, Stubbs, Land & Rothschild, Albert W. Stubbs, Joseph L. Waldrep, Lewis, Taylor & Lee, James R. Lewis, Denney, Pease, Allison, Kirk & Lomax, John W. Denney, for appellees.


author: Andrews, Judge.

text:
    A92A2083.
    HOUSTON et al. v. KINDER-CARE LEARNING CENTERS, INC. et al.
    (430 SE2d 24)
   Andrews, Judge.

John Houston, Jr., a minor, through his parents and guardians, appeals the judgment entered on a jury verdict for defendants Kinder-Care Learning Centers, Inc. and two of its former employees, Ms. Holley, John’s teacher when he was two years old, and Ms. Moore, who was the Center Director.

Viewed in favor of the jury’s verdict, the evidence was that John was a low birth weight baby whose mother suffered from toxemia during the last month of her pregnancy. At the age of six weeks, John was enrolled in the infant program at Kinder-Care.

Defendant Holly had worked for Kinder-Care since 1979, starting as a teacher’s aide and becoming the teacher for the toddlers. In early 1986, John was in her toddler class for a month or two until she was transferred to teach the two-year-old class. At the age of two, John joined this class. John was a very demanding child who became aggressive with other children, sometimes spitting and hitting them. He also was extremely active and disruptive of class and was difficult to calm. The policy of Kinder-Care was that spanking was not allowed, but the use of “time-out” was. The child could be separated from the other children, usually by being placed in a chair in a corner. The child was always to be within the sight of the teacher and able to see the other children.

As John became more aggressive and demanding, he was being placed in time-out. Holley attempted to use the standard time-out procedure of a chair in a corner, but John’s actions made this unfeasible. In one corner, he played in the water fountain and in another he ran outside through the nearby door. When Holley attempted to talk to him concerning his behavior as he sat in the chair, he would kick, hit, spit, and scream at her, which caused the remaining ten or eleven two-year-olds to gather to see what was happening. In an effort to control John and cause as little disruption as possible to the rest of the children, in late January 1988 Holley began to use the bathroom between the two-year-old room and the infants’ room for time-out. She would place John in a chair immediately inside the bathroom door. Then, she would lean against the water fountain outside the door to the bathroom, hold the door open with her foot so that John could not pinch his fingers in it and could see and listen to her, and attempt to calm him down. She did not completely close the door and the lights remained on. From this position, she could both talk to John and observe the remainder of the class. Occasionally, when Mrs. Houston would come to pick John up, he would be in the bathroom and she did not question Holley about this.

Because of the layout of the center, Moore, the director, could hear any disruptions. She was aware of Holley’s use of time-out with John and had heard him crying once when he was placed in time-out. In three months, she may have seen this on three occasions. She was not concerned about the procedure because John was safe and being observed and was in view of other teachers in the center.

John sometimes suffered nightmares during his naps and was afraid of loud noises and strangers. Mr. Houston disciplined John with a belt and, according to John, had spanked him with a book before.

In May 1988, John was placed in the three-year-old class with another teacher with the hope that placing him in a larger room with older children would help his behavior. He was improving, when his parents removed him from Kinder-Care.

Mrs. Houston said she was aware of this use of the bathroom because she had been contacted by Campbell and Leverette, two former employees of the center. Campbell worked there in 1987 and was terminated for leaving her class in the middle of the day. Leverette was hired in January 1988 and terminated in July 1988 because she asked another teacher to spank a child for her. Campbell’s testimony concerning John being shut in the bathroom was, at best, equivocal and she acknowledged that she never reported any alleged misconduct by Holley to anyone at the center. While Leverette did testify that John would be placed in the bathroom and Holley would turn off the light and shut the door, placing her foot against it, she acknowledged that, from her vantage point in another classroom, she could not see into the bathroom and that the door may have been open.

After leaving Kinder-Care, John was placed in La Petite, another day care center, which refused to continue to keep him after 30 days. His parents took him to see a counselor who referred them to Dr. Hazard, a clinical psychologist. She evaluated John, including administering psychological tests, in December 1988. She also spoke to his teacher at Children’s World which he was then attending. They reported a very short attention span and need for extra attention. Dr. Hazard diagnosed John as suffering from Attention Deficit Hyperactivity Disorder and attributed his behavior problems to that. She recommended medication, which the parents rejected.

While John was attending public kindergarten in Georgia, his parents refused referral to the school support team for evaluation. After moving to Texas and entering first grade, John was suspended because he attempted to poke another child in the eye with a pencil.

John received no counseling or treatment for a year and then was seen by another clinical psychologist, Dr. Ude, beginning in the fall of 1990 and continuing through April 1991. Dr. Ude was aware of the incidents at Kinder-Care but was not advised by the parents of the other day care problems. He did not conduct any testing, but concluded after interviewing John once in October 1990 that the child suffered from Post Traumatic Stress Disorder which he attributed to the trauma suffered from the time-out procedure.

John, who was seven at the time of the trial in February 1992, testified that he could not presently remember being shut in the bathroom.

Suit was filed in July 1990 alleging claims for negligence, breach of contract, false imprisonment, assault and battery, cost of ongoing medical care, punitive damages and attorney fees.

1. The first two enumerations complain of the court’s refusal to admit a statement by Kinder-Care’s regional manager which the Houstons contend was an admission of liability and the court’s limiting of plaintiff’s examination of the regional manager.

After John was removed from Kinder-Care, Mrs. Houston wrote a letter complaining of his being shut in the bathroom. She was contacted in April 1989 by Grant of Kinder-Care who informed her he was investigating her. complaints. Then, in June and July, she met with Tucker, who became the new regional manager of Kinder-Care in March 1989. Prior to trial, defendants made a motion in limine to exclude Tucker’s statement made at the July meeting as an “admission or proposition made with a view to a compromise” under OCGA § 24-3-37. The court granted that motion. The proffer made by plaintiffs during the argument on the motion was that Tucker asked “What is it going to take to make you folks happy?”

Although the motion excluding the statement was granted and Mrs. Houston was in court at that time, during her direct testimony, in response to a question about where the second meeting with Tucker had taken place, she stated: “At McDonald’s again. He came in and he was more of a — I told him, . . . you are not acknowledging the fact what has happened to my child. You are talking about reconstructing, reorganizing and your investigation, you know. This is happening. I don’t want this to happen to any other children . . . And he went on and he said — he looked into the papers and he came back and he asked me — he asked me — he said, what would it take —.” At this point, defendants’ objection was sustained, although their motion for mistrial was denied.

After defendants rested, plaintiffs, as rebuttal, called Tucker as their witness for purposes of cross-examination. Tucker testified that he was involved “in the attempt to resolve . . . [their] concern” and that “I was responsible for reviewing the investigation and determining the liability.”

After further describing the investigation he conducted, Tucker was asked “Did you make any decision about your center’s responsibility based on that investigation?” Defendants again objected, at which point the question was withdrawn by plaintiffs. At that point, defense counsel asked to have the jury removed to discuss the entire line of questioning. Then, the following transpired: Plaintiff’s counsel Mr. Ford: “Your honor, I respectfully except to that. Mr. Tucker, . . . said that his purpose in conducting an investigation was to find out what happened and determine — The court: Counsel, let me suggest to you that none of it has anything to do with whether or not there was any negligent acts or whether or not there was any — Mr. Ford: Yes sir, but it does. The court: Just a moment. Mr. Ford: I’m sorry. The court: That’s the problem. That’s why we waste so much time. We are inquiring about matters that don’t make any difference. Mr. Ford: Your honor, I respectfully — The court: And you are about to get into trouble — Now I have ruled on this matter and I have dealt with it enough and I’m not going to say anything else about it now. Mr. Ford: I would — could I be heard? The court: No, sir, just move forward.”

Even assuming that the asking of a question, as was done by Tucker, can ever be taken as an affirmative admission, the court’s attempted exclusion of this testimony was appropriate. “ ‘There is a distinction between an offer or proposition to compromise a doubtful or disputed claim, and an offer to settle upon certain terms a claim that is unquestioned. An admission made in an offer to settle will be admissible while one made in an offer to compromise will not be admissible. (Cits.)’ Charter Mtg. Co. v. Ahouse, 165 Ga. App. 497 (1) (300 SE2d 328) (1983). In Charter Mtg. Co., this court held that an unsolicited offer to settle for the full amount of the original claim was admissible. In the present case, it is clear from the record that the [statement] was an [effort to explore] an offer to compromise a claim which was still being disputed. . . .” DeKalb County v. Daniels, 174 Ga. App. 319, 320 (4) (329 SE2d 620) (1985). Compare Turner Broadcasting System v. Europe Craft Imports, 186 Ga. App. 286, 289 (3) (367 SE2d 99) (1988).

Further, even if incorrect, the ruling was effectively circumvented by plaintiff during the testimony of Mrs. Houston and, therefore, any error would have been harmless.

There was no violation of OCGA § 9-10-7 as contended by plaintiffs. Starks v. Robinson, 189 Ga. App. 168, 169 (2) (375 SE2d 86) (1988).

2. Error is enumerated for the court’s allowance of evidence in violation of OCGA § 24-2-2, dealing with other transactions.

Gail Garrett was a teacher at Kinder-Care from May until August 1987 and from February 1988 until April 1989. She would substitute in the two-year-old class when Ms. Holley was absent and she was familiar with John Houston as a student in that class. She was asked a series of questions about her experience with John and then asked if she had an opportunity to observe Holley with the two-year-old classroom and if she had ever seen her lose control with the children. This question was objected to because “I think she is going to start asking this witness about what she saw Diane Holley do and other transactions.”

Certainly, any observations of Holley’s conduct in John Houston’s class were relevant and material to the issue of her alleged mistreatment of him.

Teachers who were present in other classrooms nearby during the times John was placed in time-out testified to the absence of the screaming and banging on the door to which plaintiffs’ witnesses had testified. This evidence was likewise relevant and admissible. OCGA § 24-2-1.

There was no error. Carsten v. Wilkes Supermarket &c., 181 Ga. App. 834 (1) (353 SE2d 922) (1987).

3. Finally, the Houstons complain of the granting of defendants’ motion for directed verdict on their count alleging assault and battery.

“ ‘ “In the interest of one’s right of inviolability of one’s person, any unlawful touching is a physical injury to the person and is actionable (as a battery).” (Cits.)’ Newsome v. Cooper-Wiss, Inc., 179 Ga. App. 670, 672 (1) (347 SE2d 619) (1986).” Haile v. Pittman, 194 Ga. App. 105, 106 (3) (389 SE2d 564) (1989).

There was no evidence here of any touching other than that which had been contracted for when the Houstons placed their infant in the care of Kinder-Care. The use of time-out as a disciplinary tool was within the guidelines of Kinder-Care and was so used with John. There was no error in the grant of the directed verdict on this count.

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.

Decided February 23, 1993 —

Reconsideration denied March 30, 1993

Davis, Price & Young, Richard M. Young, Ford & Haley, James L. Ford, for appellants.

Drew, Eckl & Farnham, W. Wray Eckl, Elizabeth C. Helm, for appellees.


author: Beasley, Judge.

text:
    A92A2122.
    NORFOLK SOUTHERN RAILWAY COMPANY v. THOMPSON.
    (430 SE2d 371)
   Beasley, Judge.

Thompson, a machinist for Norfolk Southern Railway Company, slipped and fell on company premises, causing a ruptured disc which was surgically removed and a bulging disc which is inoperable. He instituted this FELA action, alleging negligence by Southern in allowing oily substances to accumulate on the floor. The jury returned a verdict in favor of Thompson for $594,396. After deducting Thompson’s railroad retirement benefits and supplemental sickness benefits pursuant to a pretrial stipulation, the court entered final judgment of $585,142.30.

1. Southern contends that the trial court erred in denying its extraordinary motion for new trial on grounds of newly discovered evidence.

Southern’s position at trial was that Thompson was physically able to perform his job and that he was feigning disabling injuries in order to obtain disability benefits.

In its motion for new trial, Southern submitted an affidavit of one of its supervisory employees that approximately one week after final judgment was entered, Thompson telephoned the affiant, informed him that he was feeling “pretty good” and wanted to return to work at his old position, and that he presented a release from his treating physician, Dr. Sendele.

Thompson denied telling this employee that his medical condition had changed or that he wanted, or was able, to return to work at his old position, and Thompson submitted medical forms from Dr. Sendele in which he had actually placed restrictions on Thompson more stringent than those he had previously imposed.

“Newly discovered evidence which shows a condition of the injured person after the trial inconsistent with the showing of his condition made on the trial must be of such decisive character as to indicate that the verdict would have been different, or indicate that the plaintiff’s claim in the first instance was based on fraud and concealment. [Cits.]” Atlantic Coast Line R. Co. v. Smith, 107 Ga. App. 384, 388 (7) (130 SE2d 355) (1963); see Perry v. Hammock, 75 Ga. App. 171, 172 (2) (42 SE2d 651) (1947). “The grant or denial of a new trial on account of newly discovered evidence is within the discretion of the trial judge, and his discretion will not be disturbed unless abused. [Cits.]” Atlantic Coast Line, supra at 388. The trial court did not abuse its discretion in denying the motion.

2. Southern contends that the trial court erred in refusing to grant a mistrial when Thompson’s attorney argued to the jury that Thompson’s exclusive remedy was under the FELA and that he had no other option whatsoever.

Thompson’s attorney stated in his opening statement that Thompson’s remedy against his employer is under the FELA rather than workers’ compensation law, and “[t] hat’s the exclusive remedy and that’s why we are here.” Counsel also stated that Thompson is not covered by Social Security and that he did not have an independent source of health insurance or major medical benefits beyond two years.

In her opening statement, Southern’s attorney responded that when plaintiff’s counsel stated that this FELA action “is his exclusive remedy and that the only offset he will get is a pension, what they are not telling you is about the benefits that are available now and that he is receiving.”

In questioning Thompson, his attorney asked about the benefits he was receiving as referenced in Southern’s opening statement. Thompson stated that she was probably talking about his savings, which he had depleted, as a result of which he could not “pay off” his house. Southern objected on the ground that such matters have been “ruled to be irrelevant in a FELA suit.” Thompson’s attorney responded that under Georgia law a person’s financial difficulty is admissible on the question of mental pain and suffering. The trial court then overruled Southern’s objection. Southern then elicited testimony from Thompson on cross-examination that he was receiving sickness benefits from Southern and was eligible for railroad retirement sickness benefits.

In closing argument, Southern’s attorney stated that Thompson was not going to be and never has been penniless and that he “has lots of options and one of his options is he can bring this lawsuit, which he has done.” Thompson’s attorney responded that he has no other option, that this is his exclusive remedy. Southern objected and moved for a mistrial, stating, “[w]e discussed this in chambers the other day and this is a misstatement by [counsel].” The court overruled the objection and denied a mistrial.

In a FELA case it is improper for the plaintiff to state to the jury that the FELA action is plaintiff’s exclusive remedy. Stillman v. Nor folk & Western R. Co., 811 F2d 834, 838 (9) (4th Cir. 1987); Kodack v. Long Island R. Co., 342 F2d 244, 247 (3) (2nd Cir. 1965); Tucker v. Kansas City Southern R. Co., 765 SW2d 308, 311 (3) (Mo. App. 1988); see also Foster v. Crawford Shipping Co., Ltd., 496 F2d 788, 792 (7) (3rd Cir. 1974) (holding that references to plaintiffs straitened financial condition were improper in a personal injury action by a longshoreman). Conversely, it is improper for the defendant to state to the jury that plaintiff is in receipt of benefits from a collateral source such as the Railroad Retirement Board. Stillman, supra.

Consequently, Thompson’s attorney’s statements to the jury concerning this action being Thompson’s exclusive remedy, Southern’s response, and the rebuttals which followed were all improper.

On the one hand, there are cases holding that “[t]he fact that counsel for one party has used improper argument to the jury will not justify or authorize counsel for the opposing party to do likewise, under the principle of law that injuria non excusat injuriam. [Cit.]” Banks v. Kilday, 88 Ga. App. 307, 311 (2) (76 SE2d 642) (1953). It also has been held that where counsel makes improper argument and there is an objection, it is the duty of the court to rebuke counsel and give curative instructions to the jury or declare a mistrial. See Ga. Power Co. v. Puckett, 181 Ga. 386, 394 (3) (182 SE 384) (1935). On the other hand, it has been held that a party cannot during trial ignore what he or she thinks to be an injustice, take a chance on a favorable verdict, and complain later. Wright v. Wright, 222 Ga. 777, 781 (4) (152 SE2d 363) (1966).

Southern’s attorney moved for a mistrial only after meeting the issue head on and Thompson’s attorney responded. Under all of the circumstances, the court’s refusal to grant the mistrial was not a manifest abuse of discretion. See Walker v. Bishop, 169 Ga. App. 236, 241 (8) (312 SE2d 349) (1983); Turner v. Wilmouth, 161 Ga. App. 2, 4 (3) (288 SE2d 839) (1982).

3. Southern contends that the trial court erred in refusing to declare a mistrial when Thompson’s attorney in cross-examining Gentry, Thompson’s general foreman, alluded to a conference in which Thompson had been told that if he got hurt again he would be fired.

On direct examination by Southern, Gentry testified to discussions he had with Thompson after his injury, about doing his work safely without worsening his condition. On cross-examination, Thompson asked Gentry if he was involved in the conference in which Thompson was told that if he got hurt again he would be fired. Counsel stated that he asked this question because Thompson had told him that there had been such a conference. Southern objected, stating that Gentry could be asked if he had made such a statement but otherwise the question was improper. The court ruled that Gentry could answer the question. He then testified that although he was not involved in that conference, he was aware that it had taken place and that it involved the assistant superintendent Corbin.

Southern later moved to strike this testimony as hearsay, but when the court offered to allow Thompson to reopen the evidence in order to present direct testimony concerning the conference, Southern argued that such testimony would be inadmissible under Central of Ga. R. Co. v. Howard, 161 Ga. App. 560 (288 SE2d 347) (1982). Thompson responded that Southern opened the door to such testimony. The court disagreed, although it stated it could understand why Thompson’s attorney felt otherwise.

Southern took the position that the grant of a mistrial was required because a curative instruction to the jury could not remove the prejudice. The court disagreed and Southern moved the court to rebuke Thompson’s attorney in addition to giving a curative instruction. The court instructed the jury to disregard any references by Thompson’s attorney to any threats by Southern and not to take such into consideration in deciding the case, that counsel’s statement was improper, and that counsel would like to apologize for making that statement, which he did. Southern’s attorney referenced this issue in her closing argument, whereupon Thompson raised an objection which the court sustained.

We do not find any abuse of discretion on the part of the trial court in instructing the jury to disregard the testimony and rebuking counsel rather than granting a mistrial. See Ga. Power Co. v. Puckett, supra; Ga. Northern R. Co. v. Hathcock, 93 Ga. App. 72, 74 (3) (91 SE2d 145) (1955); compare Central of Ga. R. Co. v. Howard, supra.

4. Southern contends that the trial court erred in granting Thompson’s motion to quash Southern’s notice to produce ex parte statements of Southern employees Shockey and Brown. The court granted the motion, based upon discussions between counsel and the court in chambers and unreported, so the reasons do not appear of record. If the court’s action was correct for any reason, it will be affirmed. Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991).

Shockey, employed as a machinist in the assembly shop, testified that he worked with Thompson, and he described their job responsibilities as well as Thompson’s attempts to perform his job after the accident. Brown, a pipe fitter who worked in the assembly shop with Thompson and was a safety committeeman at the time of Thompson’s injury, testified that when employees complain about a dangerous condition he reports it to company representatives such as the shift supervisor or assistant manager; that employees had been complaining about this dangerous condition for a couple of weeks before Thompson’s accident; and that at that time nothing had been done about it. The trial court charged the jury that the knowledge of an agent, servant or employee of the railroad is deemed to be the knowledge of the railroad itself.

OCGA § 9-11-26 (b) (1) states that “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. ...” However, OCGA § 9-11-26 (b) (3) states that “a party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (1) of subsection (b) of this Code section and prepared in anticipation of litigation or for trial . . . only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” See Lowes of Ga. v. Webb, 180 Ga. App. 755, 756 (350 SE2d 292) (1986).

Since Thompson called Shockey and Brown to testify at trial, it is apparent that the material sought was prepared in anticipation of litigation, as part of plaintiff’s investigation for the purpose of determining whether to file suit. However, Southern did not show nor does it argue that it could not have obtained the statements of the witnesses, who were its own employees, directly from them. Under OCGA § 9-11-26 (b) (3), the recorded statements would be privileged work-product material and not discoverable.

Nonetheless, Southern argues that the privilege does not protect this work-product because Thompson’s attorney obtained these statements in violation of Standard 47 of Rule 4-102 of the Rules and Regulations of the State Bar of Georgia. Standard 47 provides: “During the course of his representation of a client, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior written consent of the lawyer representing such other party or is authorized by law to do so. A violation of this standard may be punished by a public reprimand.”

. State Bar of Georgia Formal Advisory Opinion 87-6 (87-R2), issued by the Supreme Court on July 12, 1989, states that under Standard 47: “An attorney may not ethically interview an employee of a corporation which is an opposing party in pending litigation without the consent of the corporation or the corporation’s counsel where the employee is either: 1) an officer or director or other employee with authority to bind the corporation; or 2) an employee whose acts or omissions may be imputed to the corporation in relation to the subject matter of the case.”

Neither Southern nor Southern’s counsel gave consent for plaintiff to interview its employees. In fact, Southern’s counsel specifically told plaintiff’s counsel that Southern did not consent to such interviews. It does not appear that this or the interviews occurred after suit had been filed.

Thompson responds that in obtaining these ex parte statements from Southern’s employees, counsel’s conduct was protected by FELA provision 45 USC § 60, which provides in pertinent part: “Any contract, rule, regulation, or device whatsoever, the purpose, intent, or effect of which shall be to prevent employees of any common carrier from furnishing voluntarily information to a person in interest as to the facts incident to the injury or death of any employee, shall be void, and whoever, by threat, intimidation, order, rule, contract, regulation, or device whatsoever, shall attempt to prevent any person from furnishing voluntarily such information to a person in interest, or whoever discharges or otherwise disciplines or attempts to discipline any employee for furnishing voluntarily such information to a person in interest, shall, upon conviction thereof, be punished by a fine of not more than $1,000 or imprisoned for hot more than one year, or by both such fine and imprisonment, for each offense.”

In Hendley v. Central of Ga. R. Co., 609 F2d 1146, 1150 (5) (5th Cir. 1980), a railroad employee was charged by it with disloyalty because he assisted a fellow employee in his FELA action against the railroad. The railroad discovered it after the fact. The employee had met with the injured employee, at the latter’s request, and his attorney on the property where the injury occurred, discussed with them the physical layout of the tracks, and gave a deposition to be used in the case. The court held that this conduct fell within the protection of 45 USC § 60 so that the employee could not lawfully be subject to disciplinary action for it. Cf. Woodrum v. Southern R. Co., 750 F2d 876, 883 (11th Cir. 1985).

Just as the railroad could not discipline an employee who has furnished information in such cases, so conversely, it could not prevent the injured employee from obtaining such information. Southern could not lawfully withhold its consent to the interviews of the plaintiff’s fellow employees Shockey and Brown. As said in Dugger v. Baltimore & O. R. Co., 5 F.R.D. 334, 336 (1, 2) (E.D. N.Y. 1946): “The purpose of . . . Section 60 was to protect employees. The intention of the Congress was to see to it that an injured employee could readily obtain all the available information from witnesses, particularly employees of the railroad company. It was made a criminal offense for any one to attempt to prevent any person from voluntarily furnishing information concerning an accident to a person in interest. An injured employee would be one of such persons.” Withholding consent would “chill justifiable FELA claims” (in the words of Stack v. Chicago, Milwaukee St. Paul & P. R. Co., 94 Wash.2d 155 (615 P2d 457, 459 (3)) (1980), regarding another device) by attempting to prevent, and perhaps succeeding in preventing, injured employees from discovering the facts.

Since the federal law under which Thompson’s action was brought protects his access to co-employees for information relating to it, Thompson’s attorney did not violate Standard 47 by obtaining the recorded statements of co-employees Brown and Shockey. His communication with them was not unethical, because he was “authorized by law to do so.” Consequently, the statements were protected from discovery by OCGA § 9-11-26 (b) (3), and the court did not err in granting Thompson’s motion to quash the notice to produce them. Cf. Cagguila v. Wyeth Laboratories, 127 F.R.D. 653 (E.D. Pa. 1989), and University Patents v. Kligman, 737 FSupp. 325 (E.D. Pa. 1990), which cases did not involve FELA.

5. Southern contends that the court erred in refusing to grant a mistrial because of Thompson’s testimony that his savings had been depleted and he could not pay off his house, as well as Thompson’s attorney’s statements that shoes worn by Thompson at the time of his accident had not been submitted as an exhibit because he needed to wear them and that he, counsel, had to lend Thompson a sport coat to wear at trial.

As stated in Division 2, the court overruled Southern’s objection to the testimony concerning Thompson’s depleting his savings and being unable to pay off his house. While cross-examining Thompson concerning the shoes he had been wearing at the time of the accident, Southern’s attorney stated that she thought the shoes would have been produced in court since they were listed as an exhibit. Thompson’s attorney responded that “[t]he man needed the shoes, in fact, he borrowed that sport coat from me.” After Southern’s cross-examination of Thompson ended and the proceedings resumed after a noon recess, Southern sought a mistrial because of counsel’s remarks concerning the shoes and sport coat. The court refused but stated it would instruct the jury to disregard counsel’s remarks. It did so concerning the coat but did not mention the shoes. Southern did hot call this omission to the court’s attention. We do not find the corrective action so insufficient, or the underlying bases for the motion so prejudicial that a mistrial was essential to preserve the right of fair trial. See Interstate Life &c. Co. v. Brewer, 56 Ga. App. 599, 611 (8) (193 SE 458) (1937).

6. Southern contends that the court erred in admitting the “Law-she Report” in evidence and in allowing Dr. Windsor, a specialist in the area of physical medicine rehabilitation who performed an independent medical evaluation of Thompson, to testify based on the Report because it was hearsay.

The Lawshe Report is a job analysis summary of the physical and environmental conditions for the job of machinist developed by a task force representing ten railroads including Southern. The report was prepared under the direction of C. H. Lawshe, Ph.D., an independent industrial psychologist. Thompson obtained this report from South-era during discovery.

At trial, Southern argued that Thompson could describe his job and did not need the out-of-court statements of a psychologist who was not subject to cross-examination. Thompson testified that in performing his job as a machinist he did “everything in that book,” which he had read, and he was subject to cross-examination. Dr. Windsor was questioned concerning Thompson’s ability to perform the functions stated in the report. Through cross-examination, Southern’s attorney pointed out job functions contained in the report which Thompson did not perform.

On appeal, the authority cited by Southern in support of its argument that a doctor cannot give an opinion based upon hearsay is Hyles v. Cockrill, 169 Ga. App. 132, 134 (4) (312 SE2d 124) (1983), which holds that an expert may give an opinion based upon the facts testified to by other witnesses, but not upon their opinions. But compare Queen v. Bair, 137 Ga. App. 30, 31 (2) (223 SE2d 8) (1975) (holding that an expert may base his opinions on information obtained from books rather than experience, although the books themselves are not admissible). See Brannen v. Prince, 204 Ga. App. 866, 868 (4) (421 SE2d 76) (1992).

Hyles is inapposite because in this case the expert was basing his opinions on facts in the report and not other expert opinions. Although the facts contained in the report constituted hearsay evidence insofar as they came from Lawshe, they did not constitute hearsay evidence insofar as they came from Thompson, because he testified that he did “everything in the book.” In addition, it was a job description certified by Southern’s general foreman as “accurately and fairly represent [ing] the job. . . .” Thompson merely substituted his written job description as set forth in the report for his oral testimony as to the precise specifics of his job. Since Thompson was subject to cross-examination as to job functions in the report that he did not perform, Southern’s inability to cross-examine Lawshe provides no reason to reverse.

As to Dr. Windsor’s testimony regarding his medical evaluation of plaintiff’s ability to perform the job described in the report, it was not inadmissible because it constituted a hypothetical based on evidence already admitted. In other words, his opinion of whether Thompson, whom he had examined, could fulfill the job duties was not rendered inadmissible because it was based on the job description. See Altamaha Convalescent Center v. Godwin, 137 Ga. App. 394, 397 (3) (224 SE2d 76) (1976).

7. Southern contends that the court erred in allowing testimony that on prior occasions other people had slipped in the same area where Thompson’s injury occurred for the same reason that Thompson fell, i.e., the floors were oily because of inadequate drainage.

Decided March 10, 1993 —

Reconsideration denied March 30, 1993

Branch, Pike & Ganz, Eileen M. Crowley, Daryl G. Clarida, for appellant.

Jones & Granger, C. Michael Hardman, for appellee.

Although the conduct of the parties in other transactions is generally irrelevant, OCGA § 24-2-2, evidence as to injuries sustained by other parties on prior occasions may be admitted for the purpose of showing that the defendant had been given notice of a dangerous condition and was thus negligent in allowing it to continue. See Wright v. Dilbeck, 122 Ga. App. 214, 216 (4) (176 SE2d 715) (1970). There must be a showing that the conditions were so similar as to carry probative weight. Sammons v. Webb, 86 Ga. App. 382, 388 (6) (71 SE2d 832) (1952). Such showing was made here by Thompson’s testimony that the condition existed for a long time, and had been reported by him at safety meetings for years. That it may have been contradicted by subsequent testimony, as argued by Southern, goes to the weight of the evidence and not its admissibility. Moreover, the contradiction does not appear to exist, as plaintiff testified that others slipped but did not fall; he never said anyone before him had fallen and reported injury. Knowledge of the dangerous work condition by the defendant was relevant to its liability for the employee’s resultant injury. Wright v. Dilbeck, supra.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A92A2135.
    McGINTY v. GOLDENS’ FOUNDRY & MACHINE COMPANY et al.
    (430 SE2d 185)
   Andrews, Judge.

McGinty appeals the grant of summary judgment to Goldens’ Foundry & Machine Company (Goldens) on his slip and fall claim.

1. “On summary judgment, movant has the burden of showing there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law. When, as in the instant case, movant is the defendant, he has the additional burden of piercing the plaintiff’s pleadings and affirmatively negating one or more essential elements of the complaint. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. [Cit.] . . . Thus, summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case. [Cit.]” Demarest v. Moore, 201 Ga. App. 90, 92 (1) (410 SE2d 191) (1991).

So viewed here, the facts were that McGinty worked for Dixie Tank Lines, a trucking company which delivered silicate to Goldens’ Foundry for use in the foundry process. McGinty had made the delivery two or three times prior to the time when he was injured. On January 11, 1989, McGinty drove his load to the foundry entrance and was met there by Goldens’ employee Hammond who worked in the finishing department but also helped guide the truck back to the hookup area where the tanker of silicate is pumped into the foundry. Hammond did so on that occasion as he had on McGinty’s prior visits. There were present in the unloading area a number of flasks, which are large forms used to make iron molds. From the photographs in the record the flasks appear to be at least four feet by four feet and must be moved by forklift. The flasks had been moved from the finishing room by the night crew and were going to be used again that day in the molding process. McGinty got out of his truck and hooked up an air hose used to force the silicate from the tanker. This hose was located on the driver’s side of the truck. McGinty then crouched and went under the tanker to the passenger side in order to hook up the hose that would transfer the silicate. The flasks were located on that side of the truck and were within two to three feet of the side of the truck. Asked if he saw the flasks when he drove up, McGinty stated: “You couldn’t help but see them.” McGinty and Hammond discussed moving the flasks from the unloading area, but Hammond stated there was no place else to put them.

The hose used to transfer the silicate is pulled from a tube on the side of the tanker and attached to the tanker and receptacle. If the hose end hits the ground in this process, it necessitates cleaning the hose to avoid contaminating the silicate. McGinty had asked Hammond to stand at one end and catch the hose as he pulled it out of the tube so that it would not become contaminated. McGinty then began pulling the hose, walking backwards with it as was his routine. McGinty said he did it this way rather than pulling it forwards so that he could watch Hammond and make sure he caught the end. He needed Hammond to guide his backward movement. McGinty fell over one flask and landed on another, injuring his back. Immediately, prior to his fall, Hammond did yell, “Watch it.”

If, as argued by McGinty and supported by Hammond’s statements, Hammond, as Goldens’ employee had voluntarily undertaken to guide McGinty’s backward movement so that he maneuvered it safely, his failure to do so would be negligence.

Decided March 19, 1993 —

Reconsideration denied March 30, 1993

Robert H. Benfield, Jr., for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, James E. Humes II, for appellees.

“[0]ne who undertakes to do an act or perform a service for another has the duty to exercise care, and is liable for injury resulting from his failure to do so, even though his undertaking is purely voluntary or even though it was completely gratuitous, and he was not under any obligation to do such act or perform such service, or there was no consideration for the promise or undertaking sufficient to support an action ex contractu based thereon.” Stelts v. Epperson, 201 Ga. App. 405, 407 (411 SE2d 281) (1991), citing Huggins v. Aetna Cas. &c. Co., 245 Ga. 248 (264 SE2d 191) (1980). See also Universal Underwriters Ins. Co. v. Smith, 253 Ga. 588, 589 (322 SE2d 269) (1984); Blossman Gas Co. v. Williams, 189 Ga. App. 195, 197 (1) (375 SE2d 117) (1988).

Therefore, it was error to grant summary judgment to Goldens.

2. Our decision in Division 1 makes unnecessary consideration of the remaining enumerations of error.

Judgment reversed.

Beasley, P. J., and Johnson, J., concur. Birdsong, P. J., not participating.


author: Birdsong, Presiding Judge.

text:
    A92A2169.
    FIRST BAPTIST CHURCH OF ROSWELL v. KING.
    (430 SE2d 635)
   Birdsong, Presiding Judge.

The First Baptist Church of Roswell appeals from the grant of a motion to set aside a judgment and then grant of summary judgment to Charles N. King III. The record shows that King sold residential property to the church for $375,000 and that in the contract of sale promised to donate “to pay or contribute” to the church $5,000 a year for five years for a total of $25,000. The applicable provision in the contract of purchase and sale recited that this promise was additional consideration for the church’s purchase of the property from King. When the money was not received from King, as provided in the contract, the church sued for breach of contract. King answered admitting the essentials of the contract, but denying the enforceability of the promise to pay or contribute the $25,000 because of lack of consideration for his promise.

The church served requests for admission on King, and he failed to respond. Later the church moved for summary judgment using King’s failure to respond to admissions in support of the motion. King also did not respond to the motion, and after a year passed without a response from King, the trial court granted the church’s motion on March 8, 1991.

On May 7, 1991, King filed a motion to set aside the judgment and on July 9, 1991, the motion was granted. Later, King moved for summary judgment based upon his assertion there was no consideration for his promise to pay or contribute the money, and later moved to withdraw the admissions. On March 17, 1992, King’s motion for summary judgment was granted.

The church now appeals contending generally the trial court erred by granting King’s motion to set aside the judgment and the trial court erred by granting summary judgment to King. Held:

1. Under our law, a judgment not based upon a jury verdict is considered within the breast of the court during the term of court in which it is entered (Whitlock v. Wilson, 79 Ga. App. 747 (54 SE2d 474)), and a court may exercise its discretion for meritorious reasons to set aside a judgment within the same term of court. Conway v. Gower, 208 Ga. 348, 351 (66 SE2d 740); Holcomb v. Trax, Inc., 138 Ga. App. 105, 106 (225 SE2d 468). Once that term of court has ended, however, a judgment may only be set aside under the procedures in OCGA § 9-11-60 (d). Crowe v. Crowe, 245 Ga. 719, 720 (267 SE2d 14); Cryomedics v. Smith, 180 Ga. App. 336, 337 (349 SE2d 223); Deans v. Kingston Dev. Corp., 159 Ga. App. 721, 722 (285 SE2d 37). Since summary judgment was entered in favor of the church on March 8, 1991, that term of court ended on May 6, 1991, and King’s motion was not filed until May 7, 1991, a motion to set aside the judgment under OCGA § 9-11-60 (d) was required.

Under this Code section, “[a] motion to set aside may be brought to set aside a judgment based upon: (1) Lack of jurisdiction over the person or the subject matter; (2) Fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant; or (3) A nonamendable defect which appears upon the face of the record or pleadings. Under this paragraph, it is not sufficient that the complaint or other pleading fails to state a claim upon which relief can be granted; but the pleadings must affirmatively show no claim in fact existed.” OCGA § 9-11-60 (d), as amended.

King, an attorney, personally filed a motion to set aside asking the court to exercise its discretion to set aside the judgment; he set forth as reasons for the trial court to exercise its discretion the failure of King’s attorney to respond to the motion and good and valid defenses King wished to assert. Although the trial court may have been authorized to grant the motion on those bases if the motion had been filed before May 6, 1991, the date the parties agree the term ended, since the motion was not filed until May 7, 1991, the court lost the power to do so. Crowe v. Crowe, supra; Cryomedics v. Smith, supra. Perhaps recognizing this, King, through new attorneys, amended the motion to set aside to assert the purported nonamendable defect on the face of the record that no legal claim existed because there was no consideration for King’s promise to pay or contribute the money.

While clearly judgments may be set aside for nonamendable defects (see, e.g., Wasden v. Rusco Industries, 233 Ga. 439 (211 SE2d 733)), King has not asserted a nonamendable defect. “A judgment is void on its face when there is a non-amendable defect appearing on the face of the record or pleadings which is not cured by verdict or judgment and the pleadings affirmatively show that no legal claim in fact existed. The judgment must be more than just an erroneous conclusion of law.” (Citation and punctuation omitted.) Shepherd v. Metropolitan Prop. &c. Ins. Co., 163 Ga. App. 650, 651 (3) (294 SE2d 638). Here, although King asserts that the promise to pay the church $25,000 was without consideration, i.e., nudum pactum (see OCGA § 13-3-40), nothing in the complaint or its attachment shows that to be the case. Both the complaint and the attached residential sales contract recite that the promise to pay $25,000 was made as additional consideration for the church to buy King’s property. Additionally, King’s defense is that his promise to pay this money was not to be enforced because of spme oral agreement with the church. Therefore, the absence of consideration as a defense is a matter to be developed by the evidence, and it is not a nonamendable defect within the meaning of OCGA § 9-11-60 (d). Miller v. Miller, 230 Ga. 777 (199 SE2d 241); Capital Assoc. v. Keoho, 173 Ga. App. 627, 628 (327 SE2d 586). At best, King’s argument is that the church’s complaint failed to state a claim upon which no relief could be granted, but that is not a nonamendable defect. OCGA § 9-11-60 (d).

Further, King’s reliance on Gilham v. Stamm & Co., 117 Ga. App. 846 (162 SE2d 248) is misplaced. In Gilham, the court found a nonamendable defect existed because the attachment to the complaint showed affirmatively that no claim against the party existed. Id. at 846-847. That situation does not exist in this case because there is no conflict between the exhibit and the complaint, and neither the complaint nor the exhibit “affirmatively show the absence of any claim [against King].” (Emphasis deleted.) Fudge v. Weissinger, 201 Ga. App. 409, 411 (411 SE2d 62). Accordingly, as King’s motion failed to satisfy the grounds for a motion to set aside a judgment under OCGA § 9-11-60 (d), the trial court erred by setting aside the judgment.

2. In view of our disposition in Division 1, we need not address the church’s other enumerations of error.

Therefore, the judgment of the trial court is reversed, and the case remanded to the trial court. The trial court is directed to reinstate the judgment entered on March 8, 1991.

Decided March 18, 1993 —

Reconsideration denied March 30, 1993

Greer, Klosik & Daugherty, John F. Daugherty, Robert J. Mc-Cune, for appellant.

England, Weaver & Kytle, J. Melvin England, for appellee.

Judgment reversed with direction.

Beasley, P. J., and Andrews, J., concur.


author: Pope, Chief Judge. Blackburn, Judge, Johnson, Judge,

text:
    A92A2128.
    TYE v. WILSON et al.
    (430 SE2d 129)
   Pope, Chief Judge.

On October 9, 1991, plaintiff/appellee J. T. Wilson, individually and as administrator of the estate of his wife, filed a complaint for medical malpractice against several defendants, including the hospital where plaintiff’s decedent was treated, her treating physicians, and a registered nurse, appellant Kay Tye. Plaintiff’s decedent died following surgery which was performed on May 2, 1989 at the defendant hospital for a hysterectomy and anterior repair. In the complaint, plaintiff alleges his wife began to bleed internally following her surgery causing her to suffer hypovolemic shock. Plaintiff contends the combination of his wife’s suffering from hypovolemic shock and the delay of certain defendant doctors to ligate his wife’s hypogastric arteries to stop the internal bleeding resulted in his wife’s suffering acute renal failure and other organ damage. Plaintiff further alleges that because his wife was not continually sedated while she was recovering, on May 14, 1989, she accidentally dislodged an endotracheal tube, ultimately causing her death.

‘ Tye filed a motion to dismiss on the ground that the affidavit filed with the complaint was insufficient to meet the requirements of OCGA § 9-11-9.1 (a), which provides: “In any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” (Emphasis supplied.) The trial court denied Tye’s motion to dismiss and we granted Tye’s application for interlocutory appeal.

Plaintiff filed with his complaint the affidavit of Dr. Howard L. Cohn, a board certified member of the American College of Obstetrics & Gynecology. Tye argues that this affidavit is insufficient under OCGA § 9-11-9.1 (a) because plaintiff’s expert, a doctor, is not competent to testify that Tye, a nurse, was negligent.

We disagree. In his affidavit plaintiff’s expert states: “Through education, training and experience, I am familiar with the standard of care acceptable to the medical profession generally. Particularly, I am familiar with such standards of care as same apply to the performing of a vaginal hysterectomy and anterior repair, the surgical management of the hemorrhaging patient, and the care and treatment of an intubated patient.” (Emphasis supplied.) Later in the affidavit, he states Nurse Tye “failed to adequately restrain and closely monitor the patient with the endotracheal tube in place.”

Nursing is a medical profession. Therefore the expert’s statement that he is “familiar with the standard of care acceptable to the medical profession generally,” is sufficient to encompass the nursing profession. This court has consistently held that members of the medical profession are competent to render an opinion about the standard of care of other members of the medical profession as long as their opinion concerns a common area of expertise.

This case is controlled by our decision in 0-1 Doctors Mem. Holding Co. v. Moore, 190 Ga. App. 286 (378 SE2d 708) (1989). In Moore, this court held the affidavit of a medical doctor stating that it was his opinion plaintiff’s injury was caused by the negligent application and control of a surgical tourniquet during plaintiff’s operation and that this failure of reasonable care was attributable to the operating personnel, including a nurse, was sufficient to meet the requirements of OCGA § 9-11-9.1 as to all defendants, including the nurse.

McCormick v. Avret, 154 Ga. App. 178 (267 SE2d 759), aff’d, 246 Ga. 401 (271 SE2d 832) (1980) also offers controlling authority for holding the expert’s affidavit in this case is sufficient to meet the requirements of OCGA § 9-11-9.1 with regard to Nurse Tye. McCormick was a medical malpractice case in which the only defendant was a medical doctor. In that case, this court held and our Supreme Court agreed it was error for the trial court not to qualify a nurse as an expert witness concerning what constitutes reasonable care in keeping sterilized a needle used to draw blood from a patient because there was no evidence that the drawing of blood is a medical treatment exclusively within the professional skills of medical doctors. Avret v. McCormick, 246 Ga. 401 (271 SE2d 832) (1980). Likewise in this case we cannot presume the treatment and monitoring of an intubated patient is a treatment exclusively within the professional skills of a nurse and that only a nurse would be competent to give an expert opinion or testimony in the area.

Defendant relies heavily upon our decision in Piedmont Hospital v. Milton, 189 Ga. App. 563 (377 SE2d 198) (1988). The Milton decision is readily distinguishable from this case. That case stands for the proposition that when a medical malpractice claim is made against a nurse, an affidavit by a doctor is insufficient to meet the requirements of OCGA § 9-11-9.1 if it simply states the nurse did not follow the doctor’s directions and does not discuss the applicable standard of care and set forth at least one negligent act by the nurse. In Milton, the plaintiff submitted the affidavit of the surgeon who had treated the plaintiff. In his affidavit, the surgeon simply stated that he had instructed the nursing staff that the plaintiff was to remain supine on the day the plaintiff fell while being assisted to the bathroom and he did not anticipate that plaintiff would have been assisted in walking given his instructions. Id. at 563-564. We held that affidavit was insufficient to show the affiant was “an expert competent to testify” because he did not state he was familiar with the standard of care the nursing staff should have utilized in caring for plaintiff and how they deviated from the requisite standard of care by not following the treating physician’s post-operative instructions. Id. at 564. Clearly, this decision should not be read to hold that a plaintiff alleging malpractice against a nurse can only meet the requirements of OCGA § 9-11-9.1 by submitting the affidavit of a nurse, no matter what acts of negligence are alleged and even though plaintiff may have the affidavit of a doctor who is familiar with the standard of care for all medical personnel named as defendants in the case, including the nurse, and can state at least one negligent act or omission by the nurse.

The defendant’s reliance on Milligan v. Manno, 197 Ga. App. 171 (397 SE2d 713) (1990) is also misplaced. In both Milligan and HCA Health Svcs. v. Hampshire, 206 Ga. App. 108 (424 SE2d 293) (1992), this court recognized that the differences between the educational currículums and methods of treatment taught in different types of schools of medicine might make allopaths, osteopaths or medical doctors unqualified to give an expert opinion that a physician from a different school had deviated from the applicable standard of care, unless it was shown that the method of diagnosis or treatment in question was the same in the two schools of practice. As we recognized in Hicks v. Mauldin, 190 Ga. App. 660 (379 SE2d 806) (1989), however, an osteopath would be competent to testify as an expert in a medical malpractice action filed against an allopath if there was no difference in the way an osteopath and allopath would treat plaintiffs condition.

In this case, plaintiff’s expert is a medical doctor and presumably has the education, training and experience normally possessed by a medical doctor. There is nothing to suggest that medical doctors and nurses are trained to treat intubated patients differently. Furthermore, there is nothing on the face of the affidavit to make it clear that plaintiff’s expert would not be familiar with the applicable standard of care to be provided to plaintiff by Nurse Tye; therefore, we cannot disregard his averment that he is familiar. “The purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits being filed, not to require a plaintiff to prove a prima facie case entitling him to recover and capable of withstanding a motion for summary judgment before the defendant need file his answer.” Moore, 190 Ga. App. at 288. Because the requirements of OCGA § 9-11-9.1 and the purpose behind that statute are fulfilled by the plaintiff’s affidavit, we affirm the trial court’s denial of Nurse Tye’s motion to dismiss.

Judgment affirmed:

McMurray, P. J., Birdsong, P. J., Carley, P. J., Beasley, Cooper and Andrews, JJ., concur. Blackburn, J., concurs specially. Johnson, J., dissents.

Blackburn, Judge,

concurring specially.

I concur fully with the analysis and result of the majority opinion in this case. I share Judge Johnson’s concern for the history of cases decided pursuant to OCGA § 9-11-9.1 and the lack of certainty and increased litigation it has visited upon the courts and parties to malpractice litigation. I join Judge Johnson in encouraging the legislature to accept the failure of this attempt at limiting litigation and return us to an arena of reasonableness by repealing OCGA § 9-11-9.1.

Johnson, Judge,

dissenting.

I respectfully dissent. I would find the affidavit in this case to be insufficient because it did not come from a member of the nursing profession.

Few issues have proved more vexatious to trial lawyers, trial judges, and the appellate courts of this state than the proper application of OCGA § 9-11-9.1. Intended to prevent frivolous litigation and all the costs inherent therein for both litigants and courts, this rule has instead caused more litigation. Rather than dealing at the summary judgment stage with the issues the legislature intended to solve, we have added a new layer of litigation at the motion to dismiss stage.

Since its enactment in 1987, there have been approximately 90 decisions from this court and the Supreme Court wrestling with this rule. Sadly, in the effort to bring some order and predictability to this area of the law, it appears that we have made matters worse. Perhaps it is time for the legislature to reconsider OCGA § 9-11-9.1, and to conclude that, it was little more, in the end, than a noble effort which failed miserably to accomplish the goals for which it was enacted.

The instant case is a clear example of the difficulty the application of this rule has presented to all who are concerned with it. We are required to address once again the question of overlapping expertise. The claim of professional negligence is against a nurse and relates to nursing care; the affidavit is from a physician and relates to “the medical profession generally,” not to nursing care, even though the physician asserts that he is familiar with the standard of care of intubated patients. The effect of this statement would be to qualify him as an expert in every profession connected to medicine. In my view, his affidavit is insufficient to make him an expert on the standard of care in the nursing profession. Consistent with our previous decisions, this court could go either way on the sufficiency of the affidavit, and thus on the application of OCGA § 9-11-9.1 to the facts presented, and take either view in complete good faith. That is the problem. In our struggles to decide the matter “once and for all,” we have done little more than assure, as best we can, that justice is done on a case-by-case basis. In the process, we have so muddied the waters as to what is acceptable and sufficient that we have put ourselves in the position of having to decide even more cases on that same flawed basis. We have thus robbed the trial courts and practitioners of any standard by which to gauge the matter save analogy, which, given our previous decisions, amounts to little if any guidance at all.

This case presents us with a perfect opportunity to provide meaningful guidance to the bench and bar of Georgia as well as to significantly reduce the amount of litigation over the rule. The Supreme Court, in Gillis v. Goodgame, 262 Ga. 117 (414 SE2d 197) (1992), established a bright-line standard for determining to whom the rule applies. That decision was long overdue, and accomplished in significant measure the goal of providing certainty and predictability to this area of the law for the benefit of practitioners and the trial courts. We should use the instant case to finish the job by establishing another bright-line standard. We should hold that an affidavit, to be deemed sufficient under OCGA § 9-11-9.1, must come from a member of the same profession as the defendant against whom the claim of professional negligence is made. While there is some validity to the notion that we should recognize the reality of overlapping expertise as we consider challenges to the sufficiency of affidavits filed pursuant to the rule, it seems that the time has come for us to recognize that we do more harm than good to the judicial system and to those who use it in these cases when we approach this issue in the way we have. It requires that we examine the question on a case-by-case basis after taking into account the peculiar facts of each case. There is little predictability and little guidance possible under the method of analysis we presently employ. The rule I propose provides clear guidance and absolute predictability while presenting no real hardship to the plaintiffs who must obtain the affidavit. If the claim is against a physician, it would be clear to the plaintiffs, the defendants, and the trial courts that the affidavit must come from a physician. If the claim is against a nurse, as in this case, the affidavit must come from a nurse, and so on down the line as to each profession to whom the rule applies now that Gillis has given us a clear standard.

Decided March 16, 1993 —

Reconsideration denied March 30, 1993

Smith, Gambrell & Russell, David A. Handley, Matthew S. Coles, for appellant.

Burnside, Wall & Daniel, Thomas R. Burnside, Jr., James B. Wall, Richard E. Allen, for appellees.