author: Beasley, Judge.

text:
    A91A0336.
    EVCO PLASTICS et al. v. BURTON.
    (407 SE2d 60)
   Beasley, Judge.

Burton was employed by Evco Plastics as a machine operator. On June 8, 1989, she slipped and fell at work, injuring her knee. She was seen the following day by an emergency room physician, who instructed her to return to work, doing light duty for four days. She was then referred to Dr. Hoag, who treated her on June 12. He refused to give her a disability slip, and she requested a change of physician. She was then treated by Dr. Allen, who first saw her on June 23; he released her to go back to work without restriction on June 30.

She returned to work about July 1 and was given lighter work but complained that knee pain precluded her from performing it. After working one day, she failed to report to work or to communicate with company personnel. In accordance with company policy, her employment was terminated. The total disability benefits which she had been receiving since June 21 were suspended on July 13, when Evco filed a WC-2 form.

The next physician treating Burton was Dr. Atwell. By letter of September 28, he stated that Burton “may return to work to all duties, however, she should limit her squatting, climbing, and stooping activities, as these are known to aggravate her [medical condition]. ... We think that her symptoms will improve given time and that she will return to full duties, including those which we have limited at this time in the near future.” Burton contacted Evco on September 28 but was refused employment because of her prior termination.

Back on August 16, Burton requested an evidentiary hearing to determine whether she had experienced a change of condition so as to authorize a resumption of temporary total disability benefits and continued medical treatment. At the hearing, Burton testified that the condition of her knee had interfered with her getting other work in other places. When asked what other kind of work she could do, she responded that she had done waitressing work but could not do that kind of work with her knee condition, because “I wouldn’t be fast enough on my feet, and I couldn’t stay up on them all day long like that, up and down.”

The administrative law judge found that when Burton returned to work after her knee injury, she was given “very light duty. . . . However, she performed this job for only one evening shift before ceasing work again, it being her contention that she was unable to perform it as a result of the knee injury. After careful review of the record and the written reports of the various physicians, I find that this work was suitable to Ms. Burton’s condition and that she was, in fact, physically capable to perform it.”

He also found that subsequent to Burton’s firing, “No employment of any kind has been made available to her by Evco Plastics despite the fact that she subsequently requested the employer to allow her to return to work. . . . [Although Ms. Burton is capable of performing certain light duty work, including the job provided for her on June 30th, she has remained continuously physically restricted as a result of the injury. Accordingly, I find that she has demonstrated that she experienced a change of condition as of her termination. In reaching this determination I note that the legal entitlement to reinstitution of benefits is not negated even if it is assumed that Evco had, as it contends, reasonable grounds for terminating the employee.”

The board affirmed the ALJ’s award, as did the superior court. On the granted application for discretionary appeal, we reverse.

Where an employee seeks a resumption of workers’ compensation disability benefits based on a change of condition, the question is “ ‘whether the employee’s injury sustained during the course of the employment caused him to be disabled to any extent, in other words, whether it caused a loss of earning capacity.’ [Cit.]” Georgia Power Co. v. Brown, 169 Ga. App. 45, 48 (2) (311 SE2d 236) (1983). Accordingly, as in that case, the dispositive issue was “whether appellee suffered a loss of earning capacity as the result of an injury sustained while in appellant’s employment.” Ibid.

When an employee who has received a disabling injury returns to work and is discharged for a cause unrelated to the injury, he is not entitled to compensation as a matter of law; nor is he denied compensation as a matter of law. Georgia Power Co., supra at 48. In seeking a resumption of benefits, the burden is on the employee to show that, “after his termination for cause, ‘his inability to secure suitable employment elsewhere was proximately caused by his previous accidental injury.’ [Cit.]” Id. at 49.

In Hartford Acc. & Indem. Co. v. Bristol, 242 Ga. 287, 288 (248 SE2d 661) (1978) and Gilmer v. Atlanta Housing Auth., 170 Ga. App. 326, 327 (316 SE2d 535) (1984), the evidence showed that the employees had made sincere albeit unsuccessful efforts to secure “suitable employment” elsewhere following their termination. Thus, they were entitled to a resumption of disability benefits.

The evidence in this case shows that the employer offered the employee suitable employment which she was physically capable of performing, but she was terminated because she failed to appear at work or explain her absence. The evidence fails to show any effort on her part to obtain other suitable employment. She failed to carry her burden of proving a change of condition authorizing a resumption of disability benefits. See generally Brown v. Gulf Ins. Co., 141 Ga. App. 819 (1) (234 SE2d 552) (1977); compare also Poulnot v. Dundee Mills Corp., 173 Ga. App. 799 (328 SE2d 228) (1985).

Decided May 28, 1991

Rehearing denied June 24, 1991

McLain & Merritt, Jeffrey E. Hickcox, for appellants.

Mundy & Gammage, John M. Strain, for appellee.

Judgment reversed.

Banke, P. J., and Carley, J., concur.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A91A0346.
    JACOBS et al. v. TYSON et al.
    (407 SE2d 62)
   Banke, Presiding Judge.

The appellants’ 12-year-old son, Calvin, was killed at the appellees’ home when 12-year-old Darold Taylor, who is the son of appellee Geraldine Tyson and the stepson of appellee Perry Lee Tyson, retrieved a loaded pistol from an unlocked dresser drawer in the appellees’ bedroom and accidentally shot him with it. The appellants filed this wrongful death action against Darold, the appellees, and the manufacturer of the weapon. The case is before us on appeal from the grant of the appellees’ motion for summary judgment.

The two boys were alone in the house when the shooting occurred. Darold’s stepfather testified that he “didn’t think [Darold] knew that gun was in the house,” while his mother testified that she knew Darold was aware they had a gun but did not know he knew where it was. The mother further testified: “I thought it was in the safest place that Darold would not go. I have never had trouble with Darold going in my bedroom at all.”

Darold testified that he had learned the location of the gun from hearing the appellees talk about it but stated that he had never before touched it or any other gun. He testified that Calvin had come over to his house after school on the day of the shooting and that as the two of them were watching cartoons he had asked Calvin if he wanted to see a gun. He testified that Calvin responded in the affirmative, whereupon he (Darold) went into the appellees’ bedroom, retrieved the gun from the top drawer of the dresser, and brought it back. He stated that the gun, which was loaded with hollow point bullets, discharged accidentally, without his touching the trigger. As previously indicated, neither of the appellees was home at the time. Held:

“ ‘It is well settled ... in this state . . . [that] parents are not liable in damages for the torts of their minor children merely because of the parent-child relationship[. W]hen liability exists it is based on a principal-agent or a master-servant relationship where the negligence of the child is imputed to the parent, or it is based on the negligence of the parent in some factual situation such as allowing the child to have unsupervised control of a dangerous instrumentality.’ [Cit.] [Where] the child [is] not pursuing [the parent’s] business or acting on [the parent’s] behalf at the time the incident occurred, [the parent] cannot be held liable on a theory of agency. ‘In cases of this sort the question is whether the facts of the case impose upon the parent a duty to anticipate injury to another through the child’s use of the instrumentality.’ [Cit.] ‘Recovery has been permitted where there was some parental negligence in furnishing or permitting a child access to an instrumentality with which the child likely would injure a third party. [Cits.]’ [Cit.]” Jackson v. Moore, 190 Ga. App. 329 (378 SE2d 726) (1989).

The trial court determined that the appellees could not be held liable to the appellants on the theory that they had negligently allowed Darold access to a dangerous instrumentality based on the following language from this court’s recent decision in Saenz v. Andrus, 195 Ga. App. 431, 433 (393 SE2d 724) (1990): “ ‘In those cases in which the parent did not furnish the dangerous instrumentality (but through negligence allowed access thereto) to the child, the standard for imposing liability upon a parent ... is whether the parent knew of the child’s proclivity or propensity for the specific dangerous activity. [Cit.]’ (Emphasis supplied.) [Cit.]” In Saenz, the injured plaintiff had been struck by a butcher knife thrown at him by the defendant’s son. A butcher knife is, of course, a common household object which can be found in most kitchens. Although it is obviously possible to use a butcher knife in such a manner that it becomes a dangerous instrumentality, such an object is not inherently likely to inflict serious bodily injury on another person unless it is intentionally used for that purpose or is handled in a reckless and dangerous manner. Thus, we held in Saenz that where the defendant’s child had never before demonstrated “any propensity whatsoever to throw any type of knife at or near another human being,” the defendant could not be held liable for the injury inflicted by the child. Id. 195 Ga. App. at 433.

The result reached in Saenz is consistent with that reached in Mayer v. Self, 178 Ga. App. 94 (1) (341 SE2d 924) (1986), where we held that a jury issue existed as to the defendants’ liability for the conduct of their five-year-old son in striking another child with a golf club, but only because there was evidence that they were aware of a previous incident in which he had hurt someone else with a golf club. In reaching that conclusion, however, we emphasized that “allowing a child unsupervised access to a golf club, without more, would not provide the evidence of parental negligence necessary for a recovery, as was the case where the instrument was a pistol, a shotgun, or a rotary lawnmower.” Id. 178 Ga. App. 95, citing Muse v. Ozment, 152 Ga. App. 896 (264 SE2d 328) (1980).

Decided May 28, 1991

Rehearing denied June 24, 1991

Calhoun & Associates, Michael A. Lewanski, for appellants.

Duffy & Feemster, Dwight T. Feemster, for appellees.

“ ‘It seems to be generally recognized, as a general principle of law, that one using or handling any instrumentality of an unusual or dangerous character is bound to take exceptional precautions to prevent injury thereby, and that children of tender years and youthful persons generally are entitled to a degree of care proportioned to their ability to foresee and avoid the perils that may be thus encountered.’ ” Glean v. Smith, 116 Ga. App. 111, 114 (156 SE2d 507) (1967). Unlike a butcher knife or a golf club, a loaded firearm may be considered an inherently dangerous instrumentality, in that, as demonstrated by this case, it can inflict serious bodily injury by “going off’ accidentally. See Glean v. Smith, supra at 112 (3). Accordingly, we hold that a jury issue exists in this case as to whether the appellees were negligent in keeping a loaded pistol in their house in a location where it was accessible to their 12-year-old son while he was present there with another child without adult supervision.

Judgment reversed.

Carley and Beasley, JJ., concur.


text:
    A91A0525.
    GREENE v. WRIGHT.
    (407 SE2d 68)
   Banke, Presiding Judge.

The appellant filed this action against the appellee seeking to recover for injuries sustained as the result of an accident which occurred on a construction site where both of them were working. The case was tried before a jury, which returned a verdict in favor of the appellee. On appeal, the appellant contends that the trial court erred in charging the jury on the doctrines of accident, comparative negligence, and the duty to attempt to avoid injurious consequences caused by another’s negligence.

Construed in favor of the verdict, the evidence introduced at trial may be summarized as follows. At the time of the accident, the appellant was working for a crane rental company which had supplied a crane to the construction site, his job being to ensure that the crane was properly stabilized and was maintained in proper operating condition. The appellee was employed by another company as a forklift operator and was engaged in the task of transporting stacks of roofing insulation from a flatbed trailer to a drop-off site beside the crane. Both the location of the crane and the location of the drop-off site had been determined by the crane operator, who was the appellant’s boss.

Decided May 31, 1991

Rehearing denied June 24, 1991

The appellee had driven a forklift for over 12 years and had transported 88 loads of roofing insulation from the trailer to the drop-off site previously that day without incident. As he was driving around the back of the crane with the next load, the appellant, seeking to deliver a message to him pursuant to instructions from the crane operator, yelled out his name, and he stopped. The appellant continued to walk towards the forklift; and as he approached it, the insulation began to fall, prompting the appellee to yell, “Look out!” According to the appellee, the appellant could have “jumped back out of the way” and avoided injury but instead held up his hands in a vain attempt to keep the insulation from falling. The insulation struck him on the back and knocked him over one of the outriggers of the crane, severely injuring him. Held:

1. The trial court did not err in charging the jury on the doctrine of legal accident. The jurors were authorized to conclude from the evidence that the appellee had exercised due care in loading the insulation onto the forklift; and although certainly not required to do so, they were further authorized to conclude that it was not reasonably foreseeable that stopping the forklift at the location in question would cause the load to fall. “A party is entitled to plead alternative theories of defense. OCGA § 9-11-8 (e) (2). Thus, even though defendant also pleaded and presented evidence that plaintiff’s injuries, if any, were proximately caused by [his] own negligence , a charge on legal accident was warranted. This was not a case in which the alleged injury had to be the proximate result of the negligence of one party or the other. Cf. Chadwick v. Miller, 169 Ga. App. 338 (1) (312 SE2d 835) (1983). The [accident] possibly ‘could have been the result of “an event not proximately caused by negligence but which instead (arose) from an unforeseen or unexplained cause. (Cit.)” (Cit.)’ [Cit.]” Shennett v. Piggly Wiggly Southern, 197 Ga. App. 502, 504 (4) (399 SE2d 476) (1990).

2. The trial court similarly was authorized by the appellee’s testimony to charge on comparative negligence and avoidance of consequences.

Judgment affirmed.

Beasley, J., concurs. Carley, J., concurs in Division 2 and in judgment.

Robert A. Moss, Gale W. Mull, for appellant.

Smith, Gambrell & Russell, John D. Hipes, David A. Handley, for appellee.


author: Cooper, Judge.

text:
    A91A0133.
    MARTIN v. SILVEY et al.
    (407 SE2d 97)
   Cooper, Judge.

This appeal arises from an action brought by appellant to enforce an oral promise allegedly made by the deceased to make a will. Appellant sued for specific performance, or in the alternative damages, and compensation in quantum meruit for services she rendered to the deceased during his lifetime. The trial court granted summary judgment to appellees, the wife and daughter of the deceased and the administrator of the deceased’s estate. On appeal, appellant’s sole enumeration of error is that the trial court erred in granting appellees’ motion for summary judgment.

Appellant contends that she first met the deceased in 1947; that she and the deceased, who was married, maintained a romantic relationship for approximately two years; that they reestablished their relationship in 1983; that they lived together from 1983 until his death in 1987; that she took care of the deceased during the time that they lived together; that during the last three weeks of the deceased’s life, appellant lived in the same house with the deceased and his invalid wife and invalid daughter; that during the last year of the deceased’s life, he agreed to make a will leaving all of his estate to appellant if she would take care of his wife and daughter after his death; and that she agreed to take care of the deceased’s wife and daughter after the deceased’s death. In 1987, the deceased died intestate leaving an estate comprised of real and personal property valued in excess of $200,000.

It is undisputed that appellant did not perform her agreement to take care of the deceased’s wife and daughter. Appellant contends, however, that she was ready and willing to perform her part of the agreement but the wife and daughter would not allow appellant to take care of them.

1. With respect to the real property in the estate, the general rule is that an agreement affecting the title to land is required to be in writing. OCGA § 13-5-30 (4). However, it has been recognized that “[a]n oral contract to make a will devising land, for a valuable consideration, which contract has been performed by the promisee, will be enforced by specific performance, if its terms are fair and equitable. . . .” (Emphasis supplied.) Park v. Minton, 229 Ga. 765 (2) (194 SE2d 465) (1972). Appellant first argues that she fully performed her part of the oral contract by giving “her promise” to care for the wife and daughter. We do not agree. Appellant’s naked promise to take care of the deceased’s wife and daughter, without actual performance, neither conferred any benefit on the deceased nor caused appellant to suffer any detriment. If we were to accept appellant’s argument, then she would not have been bound to perform the obvious object of her promise — caring for the deceased’s wife and daughter — because she would have fully performed her part of the agreement by merely making the promise. Such reasoning would facilitate the very fraud sought to be addressed by the Statute of Frauds.

Appellant also argues that appellees are estopped from raising nonperformance as a defense since she was at all times willing to take care of the wife and daughter but was unable to do so because the wife and daughter would not allow appellant to take care of them. “While an oral contract within the Statute of Frauds may be taken out by part performance where one party performs some act essential to the performance which results in loss to him and benefit to the other, the mere fact that one party attempts performance which results in no loss to one or benefit to the other is not sufficient to take the contract out of the statute. [Cit.]” Alodex Corp. v. Brawner, 134 Ga. App. 630, 631 (2) (215 SE2d 527) (1975) (rev’d on other grounds at 246 Ga. 818). Appellant’s alleged attempt to care for the deceased’s wife and daughter resulted in no loss to her and no benefit to the deceased and was insufficient to take the contract out of the Statute of Frauds.

2. With respect to the personal property in the deceased’s estate, the general rule is that “ ‘equity will not decree specific performance of contracts relating to personal property. In order to sustain a bill for the specific performance of such a contract, it is necessary to allege some good reason in equity and good conscience to take the case out of the general rule above stated.’ ” Black v. American Vending Co., 239 Ga. 632, 633 (2) (238 SE2d 420) (1977). Appellant alleged in her complaint that because she was without a remedy at law and to avoid a multiplicity of lawsuits, a court of equity should take the case. However, appellant has not established how she is without an adequate remedy at law or how a multiplicity of lawsuits could occur. Accordingly, we do not find that appellant has alleged such a reason as to take the case out of the general rule.

To the extent that appellant has alternatively prayed for damages in lieu of specific performance, appellant cannot seek to enforce a contract when she has admittedly not performed her part of the agreement. “ ‘In order for [appellant] to recover any damages it [is] necessary that the [complaint] show performance of the contract by the [appellant] ... or that performance on [her] part was for valid reason excused. . . .’ [Cits.]” Rochester Capital Leasing Corp. v. Christian, 109 Ga. App. 818, 821 (2) (137 SE2d 518) (1964). The alleged agreement was between appellant and the deceased. There is no evidence that the deceased excused appellant from performing her part of the agreement. Nor do we find that under the facts of this case, appellant’s inability to perform her part of the agreement was sufficient to constitute a valid reason excusing her nonperformance.

Decided June 24, 1991.

Stephens & Stephens, Lawton E. Stephens, for appellant.

Robert N. Elkins, for appellees.

3. Appellant’s claim for the reasonable value of her services rendered to the deceased prior to his death under a theory of quantum meruit is also without merit. Appellant testified in her deposition that during the time that she lived with the deceased, she rendered her services to him and cared for him because she loved him. She also testified that she did not know the deceased had any money until approximately three weeks before his death. All of the evidence suggests that appellant rendered her services in caring for the deceased voluntarily and had no expectation of being compensated out of his estate for her services. Thus, the trial court did not err in granting summary judgment to appellees on appellant’s claim for the reasonable value of her services. See Allen v. T. A. Communications, 181 Ga. App. 726, 727 (353 SE2d 569) (1987).

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0388.
    McPHERSON et al. v. CITY OF FORT OGLETHORPE.
    (407 SE2d 99)
   Cooper, Judge.

Plaintiffs appeal from the grant of summary judgment to one of several co-defendants in a negligence and nuisance action.

In 1979, the City of Fort Oglethorpe (the “City”) applied for a permit to erect a traffic signal device at the intersection of Van Cleve Street and State Route 2, a seven-lane undivided highway which is a part of the State highway system. The application contained the following language: “In the event that the State Department of Transportation issues a permit for the erection of a traffic signal . . . the [City] agrees to install and operate traffic signal equipment which conforms with equipment, installation and operating standards approved by the State Department of Transportation and further agrees to install and operate said signal equipment as specified in the permit and in conformance with standard and subject to provisions set forth herein.” The application also contained an indemnification clause which stated: “The [City] agrees to place necessary barricades, warning signs, signals, lights, and if necessary, watchmen, for the protection of the traveling public, and agrees by the issuance of a permit based on this application to keep and hold [DOT] harmless from any and all damages caused by the erection, operation, maintenance, use, failure or removal of said signal.” The permit was issued by the State Department of Transportation and the traffic signal was installed. The accident which is the subject matter of the lawsuit occurred when two pedestrians were struck by a car as they attempted to cross State Route 2. Both pedestrians were injured, and one of them subsequently died as a result of her injuries. The decedent’s administratrix brought an action, individually and on behalf of the decedent’s estate, against the driver, the City, the State Department of Transportation and several agents of the Department of Transportation, alleging that the traffic signal at the intersection where the accident occurred was negligently operated and maintained by the City, and that the operation and maintenance of the traffic signal constituted a nuisance. Specifically, plaintiffs argue that the timing sequence on the traffic signal did not give sufficient time for pedestrians to cross State Route 2. The trial court granted summary judgment to the City. The action is still pending against the remaining co-defendants.

1. Plaintiffs contend that the trial court erred in granting summary judgment to the City on plaintiffs claim of negligence. OCGA § 32-4-93 (b) provides: “A municipality is relieved of any and all liability resulting from or occasioned by defective construction of those portions of the state highway system . . . lying within its corporate limits or resulting from the failure of the department or the county to maintain such roads as required by law unless the municipality constructed or agreed to perform the necessary maintenance of such road.” It is undisputed that State Route 2 at its intersection with Van Cleve Street is part of the State highway system. It is also undisputed that DOT engineered, constructed, maintained and set the timing sequence for the traffic control at that intersection and that the City had no discretion or decision-making power with regard to the location, sequencing or timing of the traffic signal. Plaintiffs argue that the City agreed in the permit application to be responsible for maintenance of the traffic signal; therefore, the City is not relieved from liability under OCGA § 32-4-93 (b). We do not agree with plaintiffs. The application for a permit is merely the means by which the City agreed to install and operate the traffic signal in accordance with DOT’s regulations. City of Fairburn v. Cook, 188 Ga. App. 58 (372 SE2d 245) (1988), cited by plaintiffs, is distinguished because in that case the issue was the visibility of the traffic signal, and there was evidence that the City of Fairburn exercised a certain amount of discretion in the location of the traffic signal. In the case sub judice, there is uncontroverted evidence that DOT had complete control and authority regarding the timing and sequence of the traffic signal, and plaintiffs failed to show any agreement by the City to maintain the traffic signal. Because plaintiffs did not establish any duty of the City to maintain the traffic signal, an essential element of negligence is missing (see Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982)), and there can be no liability on the part of the City. Since no issue of fact exists as to the City’s liability, the trial court properly granted summary judgment to the City on plaintiffs’ claim for negligence. Peluso v. Central of Ga. R. Co., 165 Ga. App. 215 (299 SE2d 51) (1983).

Decided June 24, 1991.

Mitchell, Coppedge, Wester, Bisson & Miller, Warren N. Coppedge, Jr., for appellants.

Gleason & Davis, John W. Davis, Jr., Drew, Echl & Farnham, Theodore Freeman, Nena K. Puckett, for appellee.

We find no merit to plaintiffs’ argument that they are direct beneficiaries of the indemnity agreement in the application. It is clear from the record that the City neither agreed to undertake any responsibility regarding the maintenance of the traffic signal nor undertook any such responsibility for which they could hold DOT harmless. Plaintiffs have also failed to show that DOT and the City intended that plaintiffs be beneficiaries under the application. See Walls, Inc. v. Atlantic Realty Co., 186 Ga. App. 389 (1) (367 SE2d 278) (1988).

2. Plaintiffs contend that the trial court erred in granting summary judgment to the City on their nuisance claims. “[T]he plaintiffs’ evidence failed to show that the [C]ity had committed an act which created the dangerous condition or that the [C]ity had failed to perform an act that it was under a duty to perform which would rectify the dangerous condition. Therefore, the [C]ity’s motion for [summary judgment] was correctly granted.” Mayor &c. of Savannah v. Palmerio, 242 Ga. 419, 427 (4) (249 SE2d 224) (1978).

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0435.
    CAPRA v. ROGERS et al.
    (407 SE2d 101)
   Cooper, Judge.

This appeal arises from a personal injury action brought by appellant against appellees, Lizzie and Charles Rogers, and Glens Falls Insurance Company (“Glens Falls”), appellant’s uninsured motorist carrier.

Appellant filed a complaint against Lizzie P. Rogers and Charles Rogers on July 17,1989, in the Superior Court of Bryan County, seeking to recover for injuries allegedly sustained in an automobile accident which occurred on August 3, 1987. A deputy sheriff with the Bryan County Sheriff’s Office attempted to serve Lizzie and Charles Rogers at the address provided by appellant but was unable to locate them at their home. Because neighbors told the deputy sheriff that they thought the couple had moved, returns of service were entered on July 31, 1989, stating that after a diligent search, Lizzie and Charles Rogers could not be found within the jurisdiction of the court. Thereafter, appellant’s counsel spent approximately four months trying to locate the whereabouts of Lizzie and Charles Rogers and finally gave the paperwork to a private process server who was able to personally serve Charles Rogers on December 7, 1989, at the address originally set forth on the summons. The process server also left a copy of the summons and complaint at the residence for Lizzie Rogers because he had been led to believe by Charles Rogers that she still resided at that address.

On August 10, 1989, one week after the expiration of the statute of limitation, appellant had a summons and a duplicate original of the complaint prepared by the Clerk of the Bryan County Superior Court to be served against Glens Falls. Service on Glens Falls’ registered agent in New York was not perfected until November 1, 1989. Shortly thereafter, Glens Falls filed a motion to dismiss appellant’s complaint on the grounds that Glens Falls was not served with a summons and complaint within two years from the date of the automobile accident.

On January 2, 1990, Charles and Lizzie Rogers filed their separate answers to the complaint. Charles Rogers raised as a defense that because appellant failed to diligently serve him, the action was barred by laches and the applicable statute of limitation. Lizzie Rogers raised the defenses of statute of limitation and insufficiency of service of process. On February 15, 1990, they both filed motions to dismiss appellant’s complaint. Lizzie Rogers alleged in her motion that she had moved out of the Rogers’ residence on April 1, 1989, and presently resided in Glynn County, Georgia. Based upon that information, appellant had Lizzie Rogers served by the private process server at her residence in Glynn County. The date of such service is not readily apparent from the record. Subsequently Lizzie and Charles Rogers filed supplemental briefs in support of their motions to dismiss in which they raised the issue of insufficiency of service by private process server, and Charles Rogers amended his answer raising the defense of insufficiency of service of process. Appellant then had additional copies of the lawsuit delivered to the respective sheriffs’ offices and Lizzie Rogers was served in Glynn County on April 9, 1990, and Charles Rogers was served in Bryan County on April 15, 1990.

The trial court granted Glens Falls’ motion to dismiss on the grounds that Glens Falls was not served with process within two years from the date of the accident. The trial court also granted Lizzie and Charles Rogers’ motions to dismiss on the grounds that appellant had not exercised due diligence in perfecting service after the running of the statute of limitation, and appellant’s attempt to serve process on Lizzie and Charles Rogers by private process server was insufficient.

Appellant appeals the trial court’s rulings claiming that the trial court erred in holding that appellant failed to exercise due diligence in attempting to have appellees served.

1. We first address appellant’s claim that the trial court erred in ruling that appellant’s attempt to serve process on Lizzie and Charles Rogers by private process server was insufficient because the private process server hired by appellant, Ancil Gordon, had not been properly appointed by the Superior Court of Bryan County. OCGA § 9-11-4 (c) provides: “Process shall be served by the sheriff of the county where the action is brought or where the defendant is found, or by his deputy, or by the marshal or sheriff of the court, or by his deputy, or by any citizen of the United States specially appointed by the court for that purpose.” The undisputed evidence in this case established that Ancil Gordon was not a deputy sheriff, marshal, sheriff, or other deputy of the court. Furthermore, the record fails to show that he was a citizen specially appointed by the Superior Court of Bryan County for the purpose of serving process. We reject appellant’s argument that Ancil Gordon’s appointment as a registered civil process server for the United States District Court for the Southern District of Georgia also authorized him to serve the complaint and summons in this action. “ ‘It is a fundamental rule of statutory construction that where the language of a statute is plain and unambiguous, the terms used therein should be given their common and ordinary meaning. [Cits.]’ ” Sledge v. Employees’ Retirement System of Ga., 196 Ga. App. 597, 598 (396 SE2d 550) (1990). We can only conclude that the plain and unambiguous language of OCGA § 9-11-4 (c) means that in order for a citizen to be authorized to serve process, he must be specially appointed by the court in which the action has been brought. To conclude otherwise would be contrary to the common and ordinary meaning of the language of the statute. Thus, because Ancil Gordon was without authority to serve process, “his attempt to do so was without effect. [Cit.]” Denny v. Croft, 195 Ga. App. 871 (2), 872 (395 SE2d 72) (1990). See also Townsend v. Williams, 170 Ga. App. 766 (318 SE2d 510) (1984). Accordingly, the trial court did not err in ruling that appellant’s purported attempt to serve process on Charles and Lizzie Rogers in December by private process server was insufficient.

2. Relying on Whitley v. Hsu, 260 Ga. 539 (397 SE2d 694) (1990), appellant enumerates as error, the failure of Charles Rogers to raise in his answer or by motion filed before or simultaneously with the answer, the defense of insufficiency of process. However, this argument was not raised in the trial court and may not be considered for the first time on appeal. Noro-North Plaza &c. v. Rare Coins of Ga., 196 Ga. App. 443, 444 (1) (395 SE2d 918) (1990).

3. Appellant also claims that the trial court erred in finding that appellant had failed to exercise due diligence in attempting to perfect service on Lizzie and Charles Rogers. “ ‘Where an action is filed within the applicable limitation period but is not served upon the defendant within five days thereafter or within the limitation period, the plaintiff must establish that he acted in a reasonable and diligent manner in attempting to insure that proper service was effected as quickly as possible; and if he is guilty of laches in this regard, service will not relate back to the time of filing of the complaint for the purpose of tolling the statute of limitation. (Cit.) The plaintiff has the burden of showing that due diligence was exercised. (Cits.) Ordinarily, “(t)he determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.” (Cit.)’ [Cit.]” Green v. Young, 197 Ga. App. 101, 102 (397 SE2d 509) (1990). See also McManus v. Sauerhoefer, 197 Ga. App. 114 (397 SE2d 715) (1990) .

In the present case approximately eight months passed between the expiration of the statute of limitation and the date that Lizzie and Charles Rogers were properly served with a copy of the complaint. This court has recently held that a period of delay of as little as 63 days will support the dismissal of a complaint for laches. McManus v. Sauerhoefer, supra at 115. Moreover, appellant’s claim that Lizzie and Charles Rogers fraudulently attempted to avoid service is not supported by the evidence. Although it may very well be true that neighbors told the sheriff that the couple had moved out of the jurisdiction, the evidence is clear that Charles Rogers was living at home during the entire period that appellant was allegedly looking for him. “[F]raud will not operate to toll the statute of limitation where, as in the present case, ordinary diligence is not exercised to discover it. [Cit.]” Smith v. Winn, 198 Ga. App. 459 (2), 460 (402 SE2d 79) (1991) .

“ ‘Here the trial judge heard argument and considered the affidavits filed. Based thereon he found, in his discretion, that [appellees’] motion [s] should be granted. Although excuses were offered, we can not hold that the [appellant] was diligent, as a matter of law.’ [Cit.]” Hudgins v. Bawtinhimer, 196 Ga. App. 386, 390 (4) (395 SE2d 909) (1990).

Decided June 24, 1991.

Calhoun & Associates, Michael A. Lewanski, for appellant.

Brennan, Harris & Rominger, Richard A. Rominger, G. Mason White, Brannen, Searcy & Smith, Joseph J. Berrigan, for appellees.

4. Appellant lastly enumerates as error the trial court’s ruling dismissing Glens Falls on the grounds that appellant was guilty of laches in perfecting service on Glens Falls. OCGA § 33-7-11 (d) provides that when a party asserts an uninsured motorist claim, “a copy of the action and all pleadings thereto shall be served as prescribed by law upon the insurance company issuing the policy as though the insurance company were actually named as a party defendant. ... In any case arising under this Code section where service upon an insurance company is prescribed, the clerk of the court in which the action is brought shall have same accomplished by issuing a duplicate original copy for the sheriff or marshal to place his return of service in the same form and manner as prescribed by law for a party defendant.” It is undisputed that appellant did not have a summons and duplicate original of the complaint prepared by the Clerk of the Superior Court of Bryan County until August 10, 1989, one week after the expiration of the statute of limitation and that Glens Falls was not served with a copy of the complaint until November 1, 1989, 12 weeks after the expiration of the statute of limitation. “[A]n uninsured motorist carrier is entitled to service within the time allowed for service on the defendant in the tort action.” Williams v. Thomas, 183 Ga. App. 51, 52 (2) (357 SE2d 872) (1987). “It is clear that [Glens Falls] was served neither timely nor in the manner required under the statute. Accordingly, [Glens Falls] was entitled to summary judgment. [Cit.]” State Auto Ins. Co. v. Reese, 191 Ga. App. 818, 819 (383 SE2d 157) (1989).

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0481.
    SPARKS v. KROGER COMPANY et al.
    (407 SE2d 105)
   Banke, Presiding Judge.

The appellant had a medical prescription filled at a pharmacy operated by The Kroger Company in one of its supermarkets, and the pharmacy dispensed to him a drug other than the one called for by the prescription. He brought this action against The Kroger Company, the pharmacist who was on duty when he presented the prescription, and the pharmacist who was on duty when the drug was dispensed to him, seeking to recover for injuries he had allegedly sustained as a result of the mistake. The defendants moved to dismiss the action based on the appellant’s failure to comply with OCGA § 9-11-9.1 (a), which requires that “[i]n any action for damages alleging professional malpractice, the plaintiff shall ... file with the complaint an affidavit of an expert competent to testify . . . set[ting] forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” The trial court granted the motion, and this appeal followed. Held:

1. The appellant contends that OCGA § 9-11-9.1 (a) is not applicable to this case because his claim was not based on professional malpractice but on OCGA § 51-1-25, which provides as follows: “If a vender of drugs and medicines, by himself or his agent, either knowingly or negligently furnishes the wrong article or medicine and damage accrues to the purchaser, his patients, his family, or his property from the use of the drug or medicine furnished, the vender shall be liable for the injury done.” As we read this statutory provision, it does nothing more than codify, with respect to vendors of drugs and medicines, the general common law duty of all persons to exercise reasonable care and diligence to avoid injuring others. Where a vendor of drugs or medicines is a licensed pharmacist and is sued on the basis of allegations that he negligently dispensed the wrong drug in filling a medical prescription, the claim against him clearly is for professional malpractice; and we find nothing in OCGA § 51-1-25 which would obviate the need for compliance with OCGA § 9-11-9.1 in such a case.

2. The appellant similarly contends that his claim should have been allowed to proceed on a breach of warranty theory, based on the principle set forth in Watkins v. Jacobs Pharmacy Co., 48 Ga. App. 38 (171 SE 830) (1933), “that a druggist impliedly warrants that the article he sells is the article called for, and is liable for breach of such warranty for injury resulting in giving the purchaser the wrong article.” However, the plaintiff’s right to recovery in the Watkins case was quite clearly considered by this court to be dependent on whether the defendant druggist had been negligent and whether his alleged negligence had proximately resulted in injury to the plaintiff. We find nothing in Watkins which would suggest that a druggist may be held liable in such a case without a showing of negligence amounting to professional malpractice.

3. The appellant alternatively contends that filling a prescription with the wrong medicine constitutes such plain and palpable negligence that a prima facie entitlement to recovery may be established in such cases without resort to expert opinion testimony, and that there is consequently no reason for requiring an expert affidavit in such cases. We must concede that this argument has a certain logical appeal. However, “[notwithstanding the fact that there is a ‘judicially-created rule’ dispensing with the expert-evidence requirement in cases of ‘clear and palpable’ professional negligence, it was held in Barr v. Johnson, 189 Ga. App. 136, 137 (375 SE2d 51) (1988), cert. denied 259 Ga. (1989), that OCGA § 9-11-9.1 supersedes this rule, so that even in cases of ‘clear and palpable’ professional negligence it is still necessary that the plaintiff file an expert affidavit contemporaneously with the filing of the complaint.” (Footnote omitted.) Housing Auth. of Savannah v. Greene, 259 Ga. 435, 436 (383 SE2d 867) (1989).

Decided June 24, 1991.

Linda C. Simms, for appellant.

Richard E. Miley, Edward L. Speese, for appellees.

4. The appellant contends that the action should have been allowed to proceed against The Kroger Company even if his failure to submit a supporting affidavit with his complaint pursuant to OCGA § 9-11-9.1 (a) required the dismissal of his claims against the two pharmacists. However, an examination of the complaint reveals that the claim against The Kroger Company was predicated solely on allegations that the two pharmacists were employed by it and were acting within the scope of their employment at all times pertinent to the action. Under these circumstances, the trial court correctly concluded that the appellant’s failure to comply with § 9-11-9.1 constituted a complete defense to the claim against the company as well as the claims against the pharmacists. See Southern Eng. Co. v. Central Ga. EMC, 193 Ga. App. 878, 879 (3) (389 SE2d 380) (1989); Housing Auth. of Savannah v. Gilpin &c. Planners, 191 Ga. App. 400 (381 SE2d 550) (1989), aff’d sub nom. Housing Auth. of Savannah v. Greene, supra.

Judgment affirmed.

Carley and Beasley, JJ., concur.


text:
    A91A0507.
    ALLMAN v. HOPE.
    (407 SE2d 107)
   Banke, Presiding Judge.

Appellee Hope brought suit against appellant Allman seeking to recover the balance due on the price of 11 quarter horses he had sold to Allman. Allman denied liability based on failure of consideration and also counterclaimed based on allegations that Hope had failed to perform certain obligations under the contract. The case was tried before a jury which returned a verdict in favor of Hope for $50,000, plus interest and attorney fees. This appeal followed.

In November of 1985, the parties entered into a written agreement whereby Allman was to purchase the horses from Hope for $225,000, payable in seven installments over a period of approximately four years. The agreement specified that “all right, title and interest” in ten of the horses was to be delivered to Allman upon the making of the second payment, but that Hope would continue to retain a security interest in the remaining horse, named “Doc Notice.” Allman timely made the first five payments due under the contract but defaulted on the last two payments, totaling $100,000. He alleged in his counterclaim that Hope had failed to comply with his obligation under the agreement to provide an equine sale contract for Doc Notice “showing that buyers have the right to breed, show, promote, exhibit, and use the horse . . .,” and that Hope had further breached the contract by failing and refusing to execute breeders’ certificates for horses bred to Doc Notice. Held.-.

1. Allman contends that the trial court erred in denying his alternative motions for directed verdict, dismissal, or judgment notwithstanding the verdict on the ground that Hope was not the proper party to pursue the claim. It was established without dispute at trial that Hope had assigned his interest in the contract to the Sun Bank of Ocala, Florida, which in turn had assigned it to a second Florida bank.

OCGA § 9-11-17 (a) requires that “[e]very action shall be prosecuted in the name of the real party in interest.” However, this Code section further specifies that “[n]o action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.” Id. “Under OCGA § 9-11-17 [a], ‘a real-party-in-interest objection . . . may be made at any time up to and including a trial on the merits. (Cits.) Such an objection is a matter in abatement and does not go to the merits of the action. (Cit.)’ [Cit.]” Warshaw Properties v. Lackey, 170 Ga. App. 101 (316 SE2d 482) (1984). See also Amica Mut. Ins. Co. v. Fleet Multi Fuel Corp., 178 Ga. App. 859, 861 (344 SE2d 742) (1986).

This court has held that “where it appears from the contract itself that the original seller . . . assigned all its rights, title and interest in said contract to an assignee . . ., the assignee is the real party in interest.” Rigdon v. Walker Sales &c., 161 Ga. App. 459, 462 (288 SE2d 711) (1982). Accord Employers’ Liability Assur. Corp. v. Keelin, 132 Ga. App. 459 (2) (208 SE2d 328) (1974). Based on the foregoing authorities, we accordingly conclude that the trial court erred in allowing the present action to proceed over the appellant’s real-party-in-interest objection. The judgment of the trial court is therefore vacated with direction that a reasonable opportunity be provided for correction of this defect in accordance with OCGA § 9-11-17 (a). In the event the defect is not corrected within the time provided therefor, the action shall be dismissed without prejudice. See generally Turner &c. Advertising v. Old South Corp., 185 Ga. App. 582 (1) (365 SE2d 149) (1988); S. D. H. Co. v. Stewart, 135 Ga. App. 505 (2) (218 SE2d 268) (1975).

Decided June 24, 1991.

Peterson, Dillard, Young, Self & Asselin, Richard W. Wilson, Jr., Joel L. Larkin, J. Stuart Teague, Jr., for appellant.

Fred W. Minter, for appellee.

2. Because of the foregoing holding, we do not reach the appellant’s remaining enumeration of error, which addresses itself to the merits of the action.

Judgment vacated and case remanded with direction.

Carley and Beasley, JJ., concur.


text:
    A91A0533.
    LEE v. MULLER.
    (407 SE2d 108)
   Beasley, Judge.

Lee executed two promissory notes in favor of Elrod, who transferred the notes to Muller, who sued Lee for payment of the notes.

Lee moved to dismiss on the ground that the courts of Georgia have no personal jurisdiction over him because he is a nonresident. The trial court denied this motion. Lee also filed a motion for partial summary judgment on the ground that the facts show without dispute that Muller does not have the rights of a holder in due course. The trial court denied the motion and granted Muller’s motion for summary judgment. All three rulings are appealed.

Lee, a North Carolina resident, loaned $100,000 to Elrod, a Louisiana resident, in order to form American Energy Consultants, Inc., a Georgia corporation. As security, Lee received 20 percent of the corporate stock. Elrod established temporary residence in Georgia and began operations of AEC.

Lee was informed that certain AEC employees had been terminated, and he became concerned about Elrod’s management of the company. As a result, he entered into an agreement to acquire Elrod’s interest in AEC for $50,000: $20,000 in cash, a $20,000 promissory note, and a $10,000 promissory note. Lee came to Georgia and closed the sale of the stock and executed the two promissory notes. The $10,000 note was due and payable 30 days from the date of the closing, and the $20,000 note was due and payable in monthly installments beginning 60 days from the date of the closing. Lee remained in Georgia for several days after his stock purchase but left the state after delegating the responsibility for daily operation of the business to others.

In later examining the records of ABC Lee subsequently discovered certain financial improprieties. Through counsel, Lee advised Elrod not to attempt to transfer the promissory notes. Nonetheless, Elrod assigned the notes to Muller, a business associate of Elrod whom Lee did not know. As the notes became payable, Muller informed Lee in separate letters that Elrod had assigned the notes to him in payment of compensation to Muller in a new business venture of Elrod. Although Muller enclosed copies of the assignments of the notes in the letters, he did not enclose copies of the notes. Lee responded by sending Muller a certified letter informing him that he was not obligated to pay the notes by reason of claims and defenses against Elrod of which Elrod had notice at the time the notes were assigned. Elrod subsequently endorsed the notes to Muller, but there is evidence that Muller did not obtain Elrod’s endorsement on the notes until after he had retained counsel, which was after Lee had given notice of his claims and defenses.

1. “There are two methods for transfer of negotiable instruments — negotiation and assignment. 2 Anderson UCC 751, § 3-201:3. However, ‘(o)nly a negotiation, not an assignment, can constitute a transferee a “holder” of a negotiable instrument.’ 11 AmJur2d 337, Bills & Notes, § 312. ‘Negotiation is the transfer of an instrument in such form that the transferee becomes a holder. If the instrument is payable to order it is negotiated by delivery with any necessary indorsement. . . . Negotiation ‘takes effect only when the indorsement is made. . . .’ OCGA § 11-3-201 (3).” Bank of Danielsville v. Seagraves, 167 Ga. App. 135, 139 (305 SE2d 790) (1983); see also OCGA § 11-3-202. A transfer without an indorsement is an assignment, and, although the UCC does not prohibit the transfer of commercial paper without an indorsement, the assignee takes subject to any defense which could be raised against the maker. First Nat. Bank of Gwinnett v. Barrett, 141 Ga. App. 161 (233 SE2d 24) (1977); Tallahassee Bank & Trust Co. v. Raines, 125 Ga. App. 263 (1) (187 SE2d 320) (1972); accord Christie v. Bassford, 47 Ga. App. 94 (1) (169 SE 687) (1933). On the other hand, a holder in due course takes free of defenses of which the holder did not have notice. OCGA § 11-3-302 (1) (c); Kemp Motor Sales v. Statham, 120 Ga. App. 515 (1) (171 SE2d 389) (1969).

There are material issues of fact on the question of whether Muller had notice of Lee’s defenses prior to Elrod’s indorsement of the notes. Consequently, the trial court erred in granting Muller’s motion for summary judgment but properly denied Lee’s motion for partial summary judgment.

Decided June 24, 1991.

Douglas L. Cronkright, for appellant.

Wimberly, Lawson & Cobb, John D. Marshall, for appellee.

2. As argued by Muller, the court had personal jurisdiction over Lee in this matter under the Long Arm Statute, OCGA § 9-10-91 (1), as one who “[transacts any business within this state.” Lee’s execution and delivery of the promissory notes and closure of the acquisition of Elrod’s interest in AEC, while physically present within the territorial limits of Georgia, were sufficient to constitute the “transacting of any business” in this state. Davis Metals v. Allen, 230 Ga. 623, 625-626 (198 SE2d 285) (1973); Georgia R. Bank & Trust Co. v. Barton, 169 Ga. App. 821 (315 SE2d 17) (1984).

The trial court correctly denied Lee’s motion to dismiss.

Judgment affirmed in part and reversed in part.

Banke, P. J., and Carley J., concur.


author: Sognier, Chief Judge.

text:
    A91A0586.
    SILVA v. SMALLS et al.
    (407 SE2d 110)
   Sognier, Chief Judge.

Richard Silva brought suit against Anthony Smalls, Crescent Express, Inc., and American Casualty Company, as the driver, owner, and insurer, respectively, of a tractor trailer truck that ran over him. The jury returned a verdict in favor of the defendants, and Silva appeals.

1. Appellant contends the trial court erred by charging the jury on assumption of risk and contributory negligence. He does not assert that the charges as given were incorrect statements of law; rather, he asserts there was no evidence to support the giving of either of these charges. We do not agree.

The evidence at trial established that appellant was working as a checker at the interchange facility at the Georgia Ports Authority (GPA). That position required appellant to physically inspect the rig, chassis, and container on each 18-wheel tractor trailer truck that passed through the interchange facility. On the date in question, appellant was working lane eight, which, together with lane seven, constituted a double lane accommodating two eight-foot wide rigs in an 18 and one half foot space. In order to completely inspect the rigs, appellant had to walk between them, a situation he acknowledged was dangerous.

Appellee Smalls, directed into lane seven, was driving a rig and chassis without a container. A rig with a chassis carrying an empty container, driven by Charlie Josey, was in lane eight, almost directly beside Smalls’ rig. In the course of inspecting Josey’s rig, appellant and Josey walked from the front of the rig down the passenger side to the rear, where Josey opened the passenger-side door to the container for appellant to inspect the interior. While Josey was closing the container door, appellant walked to the driver’s side of Josey’s rig, in the 30 inch space between his rig and Smalls’ rig, in order to inspect the left rear tandem of tires. Appellant testified that as he stepped between the rigs he glanced up through the rear window of Smalls’ cab for “a couple of seconds” and saw no one there. Appellant acknowledged he made no effort to speak with Smalls or verify that Smalls’ rig would not be moved before positioning himself between the rigs. Although appellant testified he did not know that the engine to Smalls’ rig was running because of the noise made by other rigs’ engines, he testified on direct examination that the engines of the rigs typically were left on. He testified that in order to check the inside left rear tires of Josey’s rig he had to bend forward slightly under the rig, but stated that at all times he was visible to Smalls because of the absence of a container and the series of mirrors on Smalls’ rig. Appellant testified that a “split second” after he completed his inspection, just as he turned to move to the left front tandem, he was caught from behind by the right rear tandem of tires on Smalls’ chassis. The 6,000 pound rig rolled over most of the left side of appellant’s body, causing severe injury.

It was uncontroverted that due to the close proximity of the rigs and the directions of controlling yellow guide lines on the double lanes, the rigs had to move directly ahead. Appellant acknowledged that Smalls could not have steered the tires into appellant by more than an inch or two, and testified, “I was in the pathway of the tandem.” Josey, in his deposition read to the jury, testified he turned the corner of his rig just as Smalls’ tires struck appellant. He stated that Smalls’ truck had to move straight ahead and that appellant was partially in the path of Smalls’ truck, opining that because appellant’s job required him to inspect the side of the container, appellant had stepped back into the path of the tires to check the container top when he was struck. Smalls testified that he saw Josey close the container door at the same time that the rig in front of Smalls’ rig moved, so he got in the cab, checked his mirrors when he entered and checked them again as he released the brakes and put the rig in gear, but that while he saw Josey in his mirrors, he never saw appellant. It was uncontroverted that there were no signs or warning devices to direct traffic, to signal drivers to move forward, or to alert the checkers that a vehicle was preparing to move.

Based on this evidence, the jury would have been authorized to conclude that appellant, in the course of a dangerous job in which he was aware no one was supervising the movements of waiting rigs, chose to walk between Josey’s and Smalls’ rigs without clearing his action with Smalls, gave Smalls’ cab only a glance as he turned the corner, bent over to inspect Josey’s tires, then stepped back into the pathway of Smalls’ tires. From this the jury could have concluded that appellant either knowingly and voluntarily exposed himself to the risk that Smalls’ rig would move so as to support a charge on assumption of risk, see Cagle v. Thorpe, 193 Ga. App. 576-577 (1) (388 SE2d 533) (1989), or that appellant negligently failed to exercise ordinary care for his own safety so as to authorize a charge on contributory negligence. See McChargue v. Black Grading Contractors, 122 Ga. App. 1, 4 (2) (176 SE2d 212) (1970). We find no merit in appellant’s argument that the contributory negligence charge was erroneously given because the evidence established he did not have time to react to Smalls’ negligence. “Contributory negligence is of two separable, distinct defenses ([cits.]): first the plaintiff must at all times use ordinary care for his own safety; that is, he must not by his own negligence (or consent) proximately cause his own injuries; and second, the plaintiff must use ordinary care to avoid the consequences of the defendant’s negligence when it is apparent or when in the exercise of ordinary care it should become apparent.” Whatley v. Henry, 65 Ga. App. 668, 674 (16 SE2d 214) (1941). See also Crim v. Grantham, 139 Ga. App. 680, 681 (1), (2) (229 SE2d 150) (1976). The trial court charged only the first of these defenses, and the evidence authorized such a charge. The contributory negligence cases cited by appellant in support of his argument involved only the second defense, and thus are not applicable here.

“It is a well established rule that an instruction is not inapplicable where there is any evidence, however slight, on which to predicate it. It is not even necessary there should be direct evidence going to that point, it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it.” (Punctuation and citations omitted.) Franklin v. Hennrich, 196 Ga. App. 372, 375 (2a) (395 SE2d 859) (1990). Applying that rule here, we find no reversible error in the giving of the charges in question.

2. Although the trial court gave a complete and accurate instruction on the principle of comparative negligence in its main charge, in response to jury questions regarding the law where the plaintiff and the defendant are equally responsible for the plaintiff’s injuries, the trial court charged that “ [i]f you find [appellees were] negligent and also find that [appellant] was also guilty of negligence which contributed to his injury and damages, and that the negligence of [appellant] was equal to or greater than that of [appellees], then [appellant] cannot recover, [and] the verdict would be for [appellees].” Appellant contends the trial court erred by not recharging the jury that he was still entitled to recover if his negligence was less than appellees’ negligence. We do not agree.

Decided June 24, 1991.

Paul H. Felser, for appellant.

Painter, Ratterree, Connolly & Bart, R. Clay Ratterree, Catherine N. Clutter, for appellees.

“Where the jury requests a re-charge by the court in one particular phase of the case, a re-charge in another need not be added to comply with their request. [Cit.] In giving a re-charge requested by the jury, the court is not bound to repeat all of the law favorable to the plaintiff. [Cits.]” Scott v. Thomas, 225 Ga. 139, 142 (166 SE2d 726) (1969).

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A91A0693.
    GEORGIA PUBLIC SERVICE COMMISSION v. CHARLES H. TURNER, INC.
    (407 SE2d 113)
   Cooper, Judge.

Appellee, Charles H. Turner, Inc. d/b/a Credit Trust Company, is a debt collection agency whose primary business is the collection of hospital and doctor debts within the State of Georgia. In January of 1990, appellee filed with the Georgia Public Service Commission (the “Commission”) an Application for Permit to Use Automatic Dialing and Announcing Devices (“ADAD”). ADAD equipment automatically dials telephone numbers and plays a pre-recorded message when calls are received, and its use in Georgia has been strictly regulated by OCGA §§ 46-5-23 and 46-5-24. The appellee’s proposed use of the equipment to collect bills is specifically authorized by OCGA § 46-5-23 (b) (3), which allows for the use of ADAD equipment when “[c]alls made with ADAD equipment relate to collection of lawful debts.” It is undisputed that appellee’s application contained information which satisfied the minimum requirements for the lawful use of ADAD equipment set forth in OCGA § 46-5-23 (a) (2) and complied with the rules and regulations promulgated by the Commission. Nevertheless, the Commission denied appellee’s application for a permit because it believed it was not in the public interest for ADAD equipment to be used for the collection of doctor and hospital bills. After appellee’s request for reconsideration was denied by the Commission, the appellee sought judicial review of the Commission’s order in superior court. This appeal follows the trial court’s order reversing the Commission’s denial of appellee’s application and ordering that an ADAD permit be granted to appellee.

1. In its first enumeration of error the Commission argues that OCGA § 46-5-23 (d) expressly provides the Commission with discretionary authority to grant or deny ADAD permits even in those circumstances where the applicant has met all of the requirements for issuance of a permit set forth in OCGA § 46-5-23 (a) (2). The pertinent portion of OCGA § 46-5-23 (d) states: “The provisions of this Code section shall supersede any prior rule, regulation, or order of the commission governing the use of ADAD equipment but shall not prohibit or supersede any future rule, regulation, or order of the commission governing the use of ADAD equipment except to the extent that any such rule, regulation, or order directly conflicts with this subsection.” It is the Commission’s contention that this language expressly authorizes the Commission to consider other factors besides the minimum requirements set forth in OCGA § 46-5-23 (a) (2) in its determination whether to grant or deny an ADAD permit. We disagree.

“Statutes should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation. [Cit.]” Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692, 693 (353 SE2d 186) (1987). Looking to the language of OCGA § 46-5-23, we note that unlike the legislature’s delegation to the Commission of discretionary authority to issue Certificates of Public Convenience and Necessity under OCGA § 46-7-2 et seq., the legislature has failed to include any language in this statute which could possibly be construed as a similar grant of discretionary authority. OCGA § 46-5-23 (d) merely authorizes the Commission to promulgate rules and regulations within the scope of the legislative enactment which are not in direct conflict with the statute. By enacting OCGA § 46-5-23, the legislature authorized the use of ADAD equipment in Georgia, provided that such use is in strict compliance with the restrictions set forth in the statute. If the legislature had intended to allow the Commission to exclude certain classes of potential ADAD users, such as medical bill collectors, from the benefits of the statute, they could have expressly so provided and could have offered guidelines for the Commission to consider when exercising such discretion. Although we are sympathetic to the Commission’s feelings about ADAD equipment being used to assist in the collection of medical bills, we are constrained to conclude that OCGA § 46-5-23 does not endow the Commission with discretionary authority to grant or deny ADAD permits where the objective standards set forth in OCGA § 46-5-23 (a) (2) have been met.

Decided June 24, 1991.

Michael J. Bowers, Attorney General, Stephanie B. Manis, Deputy Attorney General, Mark H. Cohen, Senior Assistant Attorney General, Dauid I. Adelman, for appellant.

McGee & Oxford, Jack A. Wotton, for appellee.

2. In its second enumeration of error the Commission argues that the legislature has delegated to the Commission general power to perform quasi-legislative functions, which delegation has empowered the Commission with the inherent right to exercise discretion in any matter affecting the public interest. However, Tamiami Trail Tours v. Ga. Pub. Svc. Comm., 213 Ga. 418 (99 SE2d 225) (1957) and other cases relied upon by the Commission, involve petitions for Certificates of Public Convenience and Necessity where it is quite clear that the legislature intended to delegate to the Commission discretionary authority to determine what is in the public’s best interest. As discussed in Division 1 of this opinion, OCGA § 46-5-23 does not contain a similar grant of discretionary authority; therefore, we do not find that the Commission has been endowed by the legislature with similar inherent discretionary authority to grant or deny ADAD permits.

3. In its third enumeration of error the Commission argues that the denial of appellee’s ADAD permit was not unreasonable, arbitrary or capricious because the Commission’s decision was based upon its belief that use of ADAD equipment to collect delinquent medical bills is contrary to the public interest. Having determined that the Commission had no express or inherent discretion to deny the ADAD permit in this instance, we can only conclude that the denial of appellee’s application was unreasonable. Thus, the order of the trial court reversing the Commission’s order and requiring the Commission to issue appellee an ADAD permit was correct.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0697.
    MITCHELL v. THE STATE.
    (407 SE2d 115)
   Cooper, Judge.

Appellant was convicted by a jury of possession of cocaine and appeals the denial of his motion for new trial.

Officer R. J. Moon responded to an anonymous telephone call received by the Manchester police department about a disturbance being created by an intoxicated person at the Huddle House. Upon arriving at the restaurant, the officer observed appellant standing on the sidewalk. After appellant was identified by several patrons of the restaurant as the person who had caused the disturbance, Officer Moon went outside to talk to appellant. As the officer approached, appellant ran away from the restaurant, and the officer chased the appellant on foot. Shortly after a back-up officer arrived, appellant was apprehended. When both officers approached appellant, they noticed that he had a strong odor of alcohol and exhibited other signs of intoxication — his speech was slurred, and he was belligerent, foulmouthed, and unsteady on his feet. Appellant was arrested for Pedestrian Under the Influence, and a pat-down search of his person was conducted subsequent to the arrest. Two metal pipes filled with a substance that was later identified as cocaine were found in a bag in appellant’s pants pocket. At trial, the appellant admitted that he was drunk at the time of the incident but claimed that he did not know that the bag found in his pants pocket contained cocaine.

1. Appellant first enumerates as error the denial of his motion to suppress evidence on the grounds that the cocaine found on appellant’s person was seized pursuant to a warrantless arrest without probable cause. “ ‘Whether [the] arrest was constitutionally valid depends . . . upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [appellant] had committed or was committing an offense.’ [Cit.]” Vaughn v. State, 247 Ga. 136, 137-138 (274 SE2d 479) (1981) citing Beck v. Ohio, 379 U. S. 89 (85 SC 223, 13 LE2d 142) (1964). “ ‘Probable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction. (Cits.) . . . (F)light in connection with other circumstances may be sufficient probable cause to uphold a warrantless arrest or search. (Cits.)’ [Cits.]” State v. Billoups, 191 Ga. App. 834, 835 (383 SE2d 198) (1989).

In the present case, the police had received a telephone call that an intoxicated person was creating a disturbance at the restaurant, and appellant had been identified by several patrons as the individual creating the disturbance. These circumstances, coupled with the flight of appellant, provided probable cause for the officers’ belief that appellant may have committed a crime. Moreover, once the officers had finally apprehended appellant, they personally observed appellant committing the offense of Pedestrian Under the Influence. This observation alone provided a sufficient basis for appellant’s warrantless arrest. OCGA § 17-4-20 (a). “ ‘It is settled law that an officer at the time of a lawful custodial arrest may, even without a warrant, make a full search of the person of the accused. (Cit.)’ [Cit.]” Travis v. State, 192 Ga. App. 695, 696 (385 SE2d 779) (1989). Accordingly, the trial court did not err in denying appellant’s motion to suppress.

2. Appellant next enumerates as error the refusal of the trial court to allow appellant to question Officer Moon about his possible racial bias towards the appellant. During the cross-examination of Officer Moon, appellant’s counsel asked: “Have you heard anybody say that Gary Mitchell had to smile at night in order for anybody to be able to see him.” After the State objected to this question on the grounds of relevancy, the court allowed appellant’s counsel to ask Officer Moon whether he had ever made that statement. When Officer Moon responded in the negative, the trial court sustained the State’s objection as to relevancy.

A defendant is entitled to a thorough and sifting cross-examination of the witnesses called against him. OCGA § 24-9-64. However, “[e]vidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.” OCGA § 24-2-1. “ ‘The right of cross-examination is not abridged where the examination is limited by the trial court to relevant matters by proper questioning. . . . The trial court has a wide range of discretion in the control of cross-examination. (Cit.) That discretion will not be limited in the absence of obvious abuse. (Cits.)’ [Cit.]” Elrod v. State, 195 Ga. App. 571, 572 (4) (394 SE2d 548) (1990).

Appellant’s counsel argued at trial that the purpose of his question was to inquire into Officer Moon’s motivation, yet when pressed by the trial court as to what motivation counsel was attempting to prove, defense counsel replied, “I don’t know.” Defense counsel having failed to offer any explanation as to how this evidence was relevant or material, the trial court did not abuse its discretion in excluding the evidence. See, e.g., Williamson v. State, 186 Ga. App. 589, 590 (2) (367 SE2d 863) (1988). Furthermore, “ ‘[a]nything not legitimately arising out of the trial of the case, which tends to destroy the impartiality of the juror, should be discountenanced.’ ” Teasley v. State, 111 Ga. App. 554, 555 (2) (340 SE2d 32) (1986). It appearing that defense counsel’s question injected into the trial an improper element of racial bias, the trial court was authorized to exclude the evidence as irrelevant. Teasley v. State, supra.

3. Appellant enumerates as error the admission into evidence of the cocaine because the State failed to establish that the testing of the substance found in appellant’s pocket was done in a scientifically reliable manner. At trial, a forensic chemist with the Georgia Bureau of Investigation Crime Laboratory was called to testify on behalf of the State as to his analysis of the substance found in appellant’s pocket. Prior to his testimony about his analysis of the test results, the witness testified at great length about his qualifications as an expert witness and the nature of the various tests he performed on the substance found in appellant’s pocket. He also testified that the tests he had performed in the present case were the same tests he had performed in some 5,000 other criminal cases in the State and that in each of these other criminal cases his testimony as to the test results had been allowed into evidence.

In Harper v. State, 249 Ga. 519 (1) (292 SE2d 389) (1982), the Supreme Court held that the admissibility of the results of a given procedure or technique depends upon “whether the procedure or technique in question has reached a scientific stage of verifiable certainty, or in the words of Professor Irving Younger, whether the procedure ‘rests upon the laws of nature.’ The trial court may make this determination from evidence presented to it at trial by the parties; in this regard expert testimony may be of value. Or the trial court may base its determination on exhibits, treatises or the rationale of cases in other jurisdictions. [Cits.] . . . Once a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature.” (Footnote omitted.) Harper v. State, supra at 525-526.

In the case sub judice, the expert witness testified that the scientific tests he had used to identify the substance found in appellant’s pocket were the same tests that had been recognized in some 5,000 other criminal cases in Georgia. The trial court was authorized to take judicial notice, without receiving evidence, that the procedure used by the witness to identify the substance as cocaine, had been established with verifiable certainty, or that it rested upon the laws of nature. Harper v. State, supra.

4. Appellant enumerates as error the failure of the trial court to grant appellant’s motion for mistrial on the grounds that the trial court commented on the appellant’s testimony during trial and intimated his opinion to the jury that the appellant was being less than truthful in his response to the prosecutor’s questions. During the State’s cross-examination of the appellant, the prosecutor asked a series of questions attempting to discredit appellant’s claim that he had been unaware that the bag he had found and put in his pocket contained cocaine. Appellant’s counsel objected to the prosecutor’s questioning and during argument following the objection, the trial court responded: “I don’t think she got much of an answer out of him is the reason she asked.” After defense counsel objected to the judge’s comment and indicated that he was going to move for a mistrial, the trial court explained: “What I’m saying is I don’t think the question was answered.”

Decided June 24, 1991.

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, Eric D. Hearn, for appellant.

William G. Hamrick, Jr., District Attorney, Monique F. Kirby, Assistant District Attorney, for appellee.

“ Tt is reversible error for a judge in any criminal case “to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” OCGA § 17-8-5 (7). “However, remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.” [Cit.]’ The trial court was explaining its ruling; we find no error.” Faulkner v. State, 186 Ga. App. 879, 880 (2) (368 SE2d 820) (1988).

Moreover, by failing to renew his motion for a mistrial after the trial court’s charge to the jury, counsel for appellant acquiesced in the trial court’s decision to give curative instructions to the jury. “ ‘Where the trial judge gives corrective instructions and thereafter counsel fails to request further instruction or renew his motion for mistrial, an enumeration addressed to such ground is without merit. (Cit.)’ [Cits.]” Loaiza v. State, 186 Ga. App. 72, 73 (2) (366 SE2d 404) (1988).

5. Appellant enumerates as error the failure of the trial court to grant his motions for directed verdict on the ground that the State did not prove criminal intent beyond a reasonable doubt. “ ‘The denial of a motion for directed verdict of acquittal should be affirmed if any rational trier of fact could have found the “essential elements of the crime beyond a reasonable doubt.” (Cit.)’ [Cit.]” Williams v. State, 196 Ga. App. 682, 683 (3) (396 SE2d 598) (1990). Our review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant acted with criminal intent and was guilty of the offense of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.