author: McMurray, Presiding Judge.

text:
    A95A0312, A95A0684.
    A95A0313.
    KENNEDY v. ADAMS; and vice versa. GOLD v. ADAMS.
    (460 SE2d 540)
   McMurray, Presiding Judge.

Defendant Kennedy is the single mother of four children. Plaintiff Adams is the father of one of these children who initiated this action by filing a petition seeking custody of his daughter. Defendant’s answer opposed plaintiff’s request for custody of the child and her counterclaim sought modification of the visitation and child support provided in a consent judgment entered in a prior legitimation action. The superior court entered an order denying any change of custody but modifying visitation and child support.

Separate applications for discretionary appeal were then submitted to this court by plaintiff, defendant, and the child’s guardian ad litem, Gold. All of these applications were granted resulting in these three companion appeals. Defendant Kennedy and guardian ad litem Gold maintain that the change in visitation is improper in that it amounts in substance to a change in custody. This is the sole issue presented in the appeal of the guardian ad litem Gold, Case No. A95A0313, and is also presented in Case No. A95A0312, where defendant raises an additional issue concerning the failure of the judgment below to explain the deviation in the new level of child support from the statutory guidelines. In Case No. A95A0684, plaintiff Adams appeals the refusal of the superior court to award him custody of his daughter and complains of the legal standard applied in reaching that decision. Held:

1. Three of plaintiff’s enumerations of error in Case No. A95A0684 challenge the standard applied by the superior court in determining the custody issue. Prior to the legitimation proceeding, custody was in the mother pursuant to OCGA § 19-7-25. Upon legitimation the father stands in the same position as any other parent as to custody of the child. Sims v. Pope, 228 Ga. 289, 291 (185 SE2d 80). Prior to the judgment of legitimation, plaintiff had no standing to raise any issue as to custody of the child. Hall v. Hall, 222 Ga. 820, 821 (152 SE2d 737). Also, while legitimation provides standing to the father, it does not effect a change in custody. Gregg v. Barnes, 203 Ga. App. 549, 550 (1), 551 (417 SE2d 206). Whereas in Gregg, supra, the parties consent to consideration of the issue of custody in a legitimation proceeding and the trial court does not lack jurisdiction of the parents, child, and subject matter, the custody issue may be resolved in the legitimation proceeding. Where there is no such consent, the custody of the child living with the mother is not changed upon legitimation and any change of custody can come about only if a subsequent custody action is filed.

In the case sub judice, there is no evidence of consent by plaintiff Adams or defendant Kennedy to consideration of the custody issue in connection with the legitimation proceeding. Nor may such consent be implied from the fact that the judgment in the legitimation action contains provisions for child support and visitation. Such findings as these are authorized in a legitimation proceeding by OCGA § 19-7-51, and while it is argued that under this statute plaintiff had an opportunity to be heard on the custody issue, this is not correct since this supposition cannot be reconciled with the cases which continue to hold that the father lacks standing to contest custody prior to judgment in a legitimation proceeding. Since visitation issues are a part of but less than all of the custody question and insofar as a provision for visitation by the non-custodial father is a modification of the custody of the mother, OCGA § 19-7-51 must represent a provision for modification of custody within the legitimation proceeding without altering the father’s lack of standing to seek a change of custody. This scheme is somewhat analogous to the provisions which provide the trial courts with broad discretion to modify visitation rights even where there is no change in conditions such as required for a change of custody. See Tirado v. Shelnutt, 159 Ga. App. 624, 626 (2) (284 SE2d 641) and OCGA § 19-9-3 (b).

Before concluding that there has been no prior adjudication of the custody issue, it is necessary to acknowledge a third action filed a few months after the judgment in the legitimation proceeding. This third action, an earlier attempt by plaintiff Adams to establish or modify custody, was dismissed without prejudice. One of the three elements of the doctrine of res judicata is an adjudication by a court of competent jurisdiction. In this previous custody case there was no adjudication, consequently the interlocutory orders in that case, including one which at least implies in its holding that the custody issue had been resolved in the legitimation case, are not res judicata. Williamson v. Ward, 192 Ga. App. 857, 859 (3) (386 SE2d 727).

In the first instance, a custody dispute between parents is decided on the basis of the best interest of the child. OCGA § 19-9-3 (a); Mitchell v. Ward, 231 Ga. 671, 672 (203 SE2d 484). Thereafter, before custody can be changed, the trial court must find that since the last award there has been a material change of condition affecting the well being of the child. OCGA § 19-9-1; Templeman v. Earnest, 209 Ga. App. 557, 558 (434 SE2d 106).

In the case sub judice, the trial court determined that the custody issue had been decided in the legitimation action and consequently applied the more burdensome criteria applicable to a petition for change of custody. Finding that there had been no material change in the child’s circumstances, the trial court did not reach the issue of the best interest of the child. This was error since as developed above, there has been no previous adjudication of the custody issue. Upon remand to the trial court, the custody dispute must be resolved under the best interest of the child test.

2. Plaintiff’s remaining enumeration of error maintains that he is entitled to custody as a matter of law. The comparative weight of the evidence relevant to the issue of the best interest of the child being appropriate for decision by the trier of fact, this contention clearly lacks merit. See Parr v. Parr, 196 Ga. 805 (27 SE2d 687). The evidence shows a mother of modest means and questionable mores who is nonetheless providing an adequate or better environment for her children. While plaintiff clearly offers his daughter certain social and economic advantages, such advantages must be weighted against the emotional toll which will result if the child is removed from the companionship of her mother and siblings, that is, from the only home she has known. These and other issues remain for determination by the trier of fact upon remand. This enumeration of error lacks merit because the evidence did not require a finding that plaintiff is entitled to custody of the child.

3. Defendant, in Case No. A95A0312, and the child’s guardian ad litem, in Case No. A95A0313, enumerate as error the modification of plaintiff’s visitation rights which they maintain amounts in substance to a change of custody. The judgment in the legitimation proceeding provided visitation for the father on every weekend (meaning Friday evening through Sunday evening), one month in the summer, and on an alternating schedule of holidays. In the order being appealed, with the beginning of the 1994-1995 school year, plaintiff is afforded visitation during the weekdays (meaning Sunday evening through Friday evening) while custody is returned to defendant for the weekends. The schedule being appealed also provides the father with visitation for one month in the summer (less alternating weekends), alternating weekends during two months that the child remains with her mother, and on an alternating schedule of holidays.

Since the time of visitation provided plaintiff under the new visitation schedule exceeds the time of custody allowed defendant there can be no doubt that the new visitation schedule is in substance a change of custody. OCGA § 19-9-22 (2). It was error for the trial court to indirectly effect a change in custody by modifying the visitation schedule. Martin v. Buglioli, 185 Ga. App. 702 (365 SE2d 866); Bullington v. Bullington, 181 Ga. App. 256, 257 (2) (351 SE2d 700).

Decided July 7, 1995

Reconsideration denied July 26, 1995.

Alice C. Stewart, for appellant (case no. A95A0312).

Sumner & Hewes, David A. Webster, for appellant (case no. A95A0313).

M. Debra Gold, pro se.

Smith & Diment, Dana G. Diment, for appellee.

4. The final enumeration of error to be considered is raised by defendant who complains of the lack of written findings to support the trial court’s departure from the statutory guidelines in determining the child support awarded. An award of child support outside the statutory range requires a written finding of special circumstances. OCGA § 19-6-15 (c). The award of child support in the case sub judice being beyond the range of the statutory guidelines, the trial court erred in failing to provide the required written findings.

Judgment reversed.

Andrews, J., concurs. Blackburn, J., concurs in the judgment only.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A95A0382.
    A95A0384.
    FLANAGAN v. RIVERSIDE MILITARY ACADEMY et al. FLANAGAN et al. v. SLAUGHTER.
    (460 SE2d 824)
   Pope, Presiding Judge.

Plaintiffs Richard and Susan Flanagan are the surviving parents and executors of the estate of Brian Flanagan. After their son died, they filed two multi-count complaints. In the first of these complaints they named as defendants: Riverside Military Academy; three of its administrators (William Maginnis, Jack Hall and Walter Krasnansky); two of its faculty members (Richard Kerr and Russell Gray); and three of its students (Jason Pullo, Thomas O’Connell and Nathan Wood). In the second complaint plaintiffs named another Riverside student (Robert Slaughter) as a defendant. With the exception of O’Connell, each of the above defendants moved for summary judgment. On appeal, plaintiffs contend that the trial court erroneously granted partial summary judgment to defendants Riverside, Kerr, Gray, Pullo, Wood and Slaughter regarding plaintiffs’ allegations that these defendants were liable to plaintiffs for the wrongful death of their son and for funeral expenses. We agree and reverse.

Construing the evidence in a light most favorable to plaintiffs, the facts of this case are as follows: Brian Flanagan was a cadet student at Riverside. On or about May 6, 1991, he became involved in an altercation with several other students over an earlier incident in which he had struck another cadet with a cane. These students, who were known as “cadet officers,” included defendants Pullo, O’Connell, Wood and Slaughter. According to plaintiffs, Riverside had given the cadet officers the authority to act as its agents in administering Riverside’s disciplinary system. Immediately before the altercation, Brian had inhaled Scotchgard. His body was therefore in an excited state and more susceptible to injury, and there is evidence that the cadet officers were aware of this fact.

During the altercation, the cadet officers physically restrained Brian and struck him with a cane and their fists. One of them also threw Brian to the floor, at which point the altercation continued verbally. According to plaintiffs, defendant Kerr entered the room during the incident, yet failed to act, thereby allowing the cadet officers to continue to intimidate and harass Brian. When Brian started having seizures and stopped breathing, defendant Gray was notified. According to at least one witness, however, Gray treated the situation as a joke and left the room without doing anything. Although attempts were later made to resuscitate Brian, they were unsuccessful, and Brian died.

After all the defendants had filed answers denying their liability, Riverside filed a motion for summary judgment on its own behalf and on behalf of Kerr and Gray. Thereafter, Pullo, Wood and Slaughter filed their own individual motions for summary judgment. In two separate orders dated August 24, 1994, the trial court granted partial summary judgment to each of the above defendants, concluding, based on the affidavit and deposition testimony of plaintiffs’ expert witness (Dr. Joseph Burton), that the sole proximate cause of Brian’s death was his own voluntary inhalation of Scotchgard. Plaintiffs’ appeal of the trial court’s order granting partial summary judgment to defendants Riverside, Kerr, Gray, Pullo and Wood was docketed in this court as Case No. A95A0382. Plaintiffs’ appeal of the order granting partial summary judgment to Slaughter was docketed as Case No. A95A0384. Both cases are discussed below as one.

As a general rule, causation is a jury question, and it should not be determined by a trial court as a matter of law except in plain and undisputed cases. See McAuley v. Wills, 251 Ga. 3, 7 (303 SE2d 258) (1983); Callaway v. Pickard, 68 Ga. App. 637, 641 (23 SE2d 564) (1942). Upon review of the record, we hold that this is not such a case because issues of material fact remain with regard to whether the cadet officers’ allegedly authorized, intentional altercation with Brian, and Kerr and Gray’s alleged negligent failure to intervene and render immediate assistance to Brian, were contributing proximate causes of his death.

Although Dr. Burton stated during deposition that Brian’s inhalation of Scotchgard was the “primary mechanism” and “dominant cause” of his death, Burton’s use of these terms is not dispositive in this case. “No inflexible rule of law can be laid down for determining what would be the proximate cause of an injury. The question must be solved by the facts of each particular case.” (Citation and punctuation omitted.) Griner v. Groover, 97 Ga. App. 753, 756 (104 SE2d 504) (1958). Here, the trial court erred in trying to create a sole legal cause of death when the medical evidence demonstrated joint causes of death. As the trial court noted it is clear from Dr. Burton’s deposition and affidavit testimony that there were at least two causes of Brian’s death — the inhalation of Scotchgard and the physical and psychological trauma resulting from the altercation. Moreover, Burton specifically testified that deaths caused by solvent abuse almost always occur during actual inhalation or ingestion of the solvent, while deaths occurring after actual ingestion are often caused by a separate, distinct trauma, such as that which Brian suffered. Therefore, a jury could find that the altercation and Brian’s inhalation of Scotchgard combined as joint proximate causes of his death.

We also note that Burton concluded in his affidavit, “within a reasonable degree of medical certainty, that the physical and psychological trauma suffered by Brian Flanagan was the ‘precipitating cause’ of his seizure and ultimate death.” Burton later defined “precipitating cause” as meaning the “trigger mechanism” of Brian’s death. As such, we cannot conclude as a matter of law that the altercation was not the proximate or efficient cause (i.e. the one that necessarily set the other causes in operation) of Brian’s death. See Standard Oil Co. v. Harris, 120 Ga. App. 768, 771 (172 SE2d 344) (1969). We also cannot conclude as a matter of law that Gray and Kerr’s failure to immediately intervene and render aid to Brian was not a contributing proximate cause of death. This is especially true in light of Burton’s testimony that the failure to immediately render CPR and first aid to Brian was a “major contributing factor” to his death. Additionally, we reject the trial court’s assertion that the altercation and Kerr and Gray’s alleged failure to render aid were simply too remote to be considered proximate causes in this case.

Furthermore, we reject defendants’ contention that Burton’s affi-

Decided July 13, 1995

Reconsideration denied July 26, 1995

Parker, Terry & Center, J. Steven Parker, Charles R. Center, Walter B. Russell, Jr., Edward G. Sheppard, Jr., for Flanagan.

Bentley, Karesh & Seacrest, Karsten Bicknese, Robin Y. DePetrillo, Forrester & Brim, James E. Brim III, for Riverside Military Academy.

Long, Weinberg, Ansley & Wheeler, J. Calhoun Harris, Jr., Lance D. Lourie, for Slaughter.

davit and deposition testimony are contradictory, and therefore must be construed against plaintiffs in accordance with the contradictory testimony rule. Under that rule, “a party’s self-conflicting testimony is to be construed against him.” (Citation and punctuation omitted; emphasis supplied.) Stone v. Dayton Hudson Corp., 193 Ga. App. 752, 755 (388 SE2d 909) (1989). Clearly, Burton is not a party in this case.

We also find no merit in defendants’ argument that the trial court properly determined that partial summary judgment was appropriate because Brian’s own negligence in inhaling the Scotchgard exceeded that of defendants. The claims against Riverside, Pullo, Wood and Slaughter are premised on intentional torts rather than negligence. The principle of comparative negligence cannot be applied to bar a claim premised on an intentional tort. See Terrell v. Hester, 182 Ga. App. 160 (355 SE2d 97) (1987). Neither can the principle of contributory negligence. See Hopkins v. First Union Bank of Savannah, 193 Ga. App. 109, 111 (2) (387 SE2d 144) (1989). Consequently, it was error for the trial court to apply these principles in deciding whether to grant partial summary judgment to Riverside, Pullo, Wood and Slaughter. Although the above principles may be used as a defense to claims of negligence, such as those plaintiffs assert against Kerr and Gray based on their alleged failure to intervene and immediately render aid to Brian, we conclude that any application of the above principles to these claims is better left to a jury under the facts of this case.

Judgments reversed.

Beasley, C. J., and Ruffin, J., concur.

       This appeal does not address plaintiffs’ allegations against defendants Maginnis, Hall and Krasnansky.


author: Birdsong, Presiding Judge.

text:
    A95A0408.
    THE STATE v. LANE.
    (460 SE2d 550)
   Birdsong, Presiding Judge.

The State appeals the grant of William Lane’s plea of former jeopardy to a charge of voluntary manslaughter.

In violation of Court of Appeals Rule 27 (a) (1), the State provides no statement of facts. The State, in one paragraph, then argues and cites authority only for the rule that the trial court has broad discretion to declare a mistrial because of the jury’s inability to reach a verdict.

The record shows appellant was indicted in three counts: murder of Wayne Thomas (Count 1), aggravated assault of Larry Thomas (Count 2), and aggravated assault of Vernon Wells (Count 3). These charges arose out of a fracas at Junior’s Trailer Park near JR’s Lounge in McIntosh County, where Lane and others were drinking, cooking steak, and boiling crabs. According to evidence, Lane had an injured knee and was using a cane. An argument began. Lane was beaten with beer bottles and an ax handle; he shot Wayne Thomas at very close range, and he shot others. To the deputy who came to his house to arrest him, Lane appeared to be “severely beaten”; he said he had lost his best friend and “had to shoot him to get him off of [him].” Lane defended by saying he acted in self-defense.

The trial lasted two days and the jury heard from 21 witnesses. The record contains the jury’s notes to the trial court. The first note stated: “We have found the defendant not guilty of Counts 2 & 3 .On Count 1, we have found the defendant not guilty of murder, but we are deadlocked on not guilty vs. guilty of involuntary manslaughter, 7-5.” (Emphasis supplied.) The trial court re-charged the jury. Forty minutes later, the jury returned this note: “[We have] reached a decision on two counts. We are unable to reach a decision on one count.” The verdict, however, found Lane not guilty of aggravated assault in Counts 2 and 3 and stated: “We, the jury, cannot reach a verdict on Count 1.” The State did not object to the form of the verdict. The court declared a mistrial as to Count 1.

The trial court and both parties have assumed a retrial for murder is barred, and the trial court granted Lane’s plea of former jeopardy as to voluntary manslaughter, holding: “The State has not presented the case to a grand jury on the offense of voluntary manslaughter and relies on the original indictment [for murder]. . . . The jury, in arriving at a not guilty verdict for murder . . . did consider the essential elements of voluntary manslaughter.” Held:

That the trial court has discretion to grant a mistrial does not answer the basic question posed in this case, i.e., whether the grant of mistrial in this case as to murder bars retrial as to voluntary manslaughter. The State does not address this issue. See Court of Appeals Rule 27 (c) (2) as to failure to argue and cite legal authority.

Nevertheless, we find the trial court erred in granting the plea in bar. In the first place, the trial court was incorrect in ruling that the jury “[arrived] at a not guilty verdict for murder.” The jury handed notes to the trial court saying it had acquitted Lane of murder, that the only criminal charge of which they contemplated finding Lane guilty was involuntary manslaughter, and that seven jurors would have found Lane not guilty even of involuntary manslaughter. But there was no verdict until it was received and published in open court (Green v. State, 208 Ga. App. 1, 2 (429 SE2d 694)), and the only verdict returned and received in open court was that the jury could not reach a verdict on Count 1 (murder). To impeach this verdict based on notes passed by the jury would be improper.

Decided July 11, 1995

Reconsideration denied July 26, 1995

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellant.

Donald 0. Nelson, for appellee.

The grant of mistrial as to the count of murder does not prevent the State from trying the defendant again for murder and the lesser included offense of voluntary manslaughter, if the termination of trial was proper. OCGA § 16-1-8 (b) (2). The termination of the trial is not improper if the jury is unable to reach a verdict. OCGA § 16-1-8 (e) (2) (C). As the termination of this case by mistrial as to the count of murder was not improper, a second trial on both the charge of murder and the lesser included offense of voluntary manslaughter will not violate Lane’s right under Georgia Constitution Art. I, Sec. I, Par. XVIII to be tried once for the same offense. See Phillips v. State, 238 Ga. 632 (235 SE2d 12).

Judgment reversed.

Johnson and Smith, JJ., concur.


text:
    A95A0458.
    ARMOUR v. THE STATE.
    (460 SE2d 807)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty on two counts of child molestation. The victims’ mother (“co-defendant”) was charged in the same indictment for criminal solicitation to make a false statement in that she directed the victims to recant their accusations against defendant. Defendant called co-defendant to testify on his behalf at trial, but she invoked her state and federal constitutional rights against self-incrimination and the trial court did not make her take the stand.

This appeal followed the entry of the judgment of conviction and sentence. Held:

1. Defendant’s challenge to the sufficiency of the evidence is without merit. The victims, both under 14 years of age, testified that defendant committed acts which constitute child molestation. This testimony, along with other evidence adduced at trial, is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of committing the separate acts of child molestation charged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Weeks v. State, 187 Ga. App. 307 (1), 308 (370 SE2d 344).

2. Next, defendant contends the trial court erred in excusing co-defendant as a defense witness simply because she invoked her state and federal constitutional rights against self-incrimination.

Co-defendant advised the trial court, via counsel and outside the presence of the jury, that she intended to invoke her state and federal rights against self-incrimination. Defense counsel responded by stating that he interviewed the co-defendant before trial and that he intended to question her about matters that do not relate to the pending charges, i.e., two counts of criminal solicitation to make a false statement. Defense counsel then stated that he “would be glad to allow [the co-defendant] to testify with her lawyer sitting next to her advising her of which questions he thinks may be self incriminating.” The trial court, however, did not require the co-defendant to take the stand. And defendant now argues that this ruling “denied [him] the opportunity to call a witness on his behalf in violation of [his] due process right to a fair opportunity to defend against the State’s accusations as afforded by the Fourteenth Amendment to the United States Constitution.” This argument is without merit.

The trial court did not err in not requiring co-defendant to take the stand because charges remained pending against her at the time of defendant’s trial. Duvall v. State, 259 Ga. 801, 802 (2) (387 SE2d 880). Notwithstanding, defendant argues that the State indicted co-defendant as a ruse to prevent her from testifying on his behalf at trial and, in support of this argument, defendant asserts that “the State entered a nolle prosequi dismissing the charges against [co-defendant soon after his convictions for molesting the victims].” We find no indication in the record, however, that the State has entered a nolle prosequi dismissing the charges against co-defendant. But even assuming the contrary, we find no error in the trial court’s decision to excuse co-defendant as a defense witness.

“As a general rule, ‘(w)here (a) witness ha(s) indicated to the trial judge outside the presence of the jury that [she] will assert [her state and federal privileges she] may not be called by the defendant.’ Dodd v. State, 236 Ga. 572, 576 (224 SE2d 408) (1976).” King v. State, 202 Ga. App. 817, 819 (2) (415 SE2d 684). And “[e]ven assuming, without deciding, that the topics on which [defendant] sought [the co-defendant’s] testimony were relevant to the issues before the jury, the Supreme Court has adopted the federal rule that ‘ “(i)f it appears that a witness intends to claim the privilege as to essentially all questions, the court may, in its discretion, refuse to allow him to take the stand. . . .” (Cit.)’ Davis v. State, 255 Ga. 598, 604 (7) (340 SE2d 869) (1986). Under the circumstances of [the] case [sub judice], we find no abuse of that discretion.” King v. State, 202 Ga. App. 817, 819 (2), supra.

Decided July 7, 1995

Reconsideration denied July 26, 1995.

Thompson, Fox, Chandler, Homans & Hicks, Graham McKinnon IV, for appellant.

Rex L. Armour, pro se.

Lydia J. Sartain, District Attorney, Leonard C. Parks, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.

       The questions defense counsel proposed related to co-defendant’s general knowledge of the nature and consequences of defendant’s sexual acts.


text:
    A95A0600.
    RUTLEDGE v. THE STATE.
    (460 SE2d 551)
   Birdsong, Presiding Judge.

John C. Rutledge appeals his convictions of possession of marijuana with intent to distribute and sell, possession of marijuana with intent to distribute within 1,000 feet of a school, possession of methamphetamine, and possession with intent to distribute more than one ounce of marijuana. Rutledge contends the trial court erred by refusing to give a charge he requested on entrapment, by denying his motion for a directed verdict because the State failed to rebut his entrapment defense, and by failing to give a charge on simple possession of marijuana.

The evidence shows that after he was identified by a confidential informant as a source of marijuana, on March 10, 1994, Rutledge, while in his car in a shopping center parking lot, was approached by the informant and an undercover officer. At the suggestion of the officer, the parties moved to a location, selected by Rutledge, where Rutledge sold marijuana to the informant. Based upon this purchase and information from the undercover officer, a warrant was obtained and Rutledge was arrested the next day, March 11, 1994, at the same place the sale was made the day before. The marijuana and methamphetamine were in his possession when he was apprehended. Later, Rutledge was indicted for five counts of violating the Georgia Controlled Substances Act: Count 1, sale of marijuana on March 10, 1994; Count 2, possession with intent to distribute and sale of less than one ounce of marijuana on March 11, 1994; Count 3, possession of marijuana with the intent to distribute within 1,000 feet of a high school on March 11, 1994; Count 4, possession of methamphetamine on March 10, 1994; and Count 5, possession with intent to distribute more than one ounce of marijuana on March 11, 1994.

Rutledge contends he was entrapped by the confidential informant, Stoker, as Stoker had a grudge against him because Stoker believed that his wife and Rutledge had a sexual relationship at one time. This contention was confirmed to some extent by Stoker’s testimony that he had confronted Rutledge about this rumor, and by testimony that another witness heard Stoker say that he had “set up” Rutledge because he hated him. Rutledge denied ever selling drugs previously and the head of the sheriff’s department drug detail testified that he had never heard of Rutledge until Stoker brought his name to his attention.

Rutledge alleges that Stoker called him and tricked Rutledge into picking up a bag that contained the marijuana and the methamphetamine and bringing the bag and its contents to the shopping center on March 10, 1994, and pretending to sell marijuana to the person Rutledge later learned was an undercover police officer. Rutledge contended Stoker explained that he did not want the purchaser to know that the marijuana belonged to him because otherwise the purchaser would expect a better deal or free marijuana from Stoker. Rutledge also alleges that he had the drugs when he was arrested because he was holding the drugs for Stoker and Stoker told him that he would find him and reclaim the drugs. Rutledge contends that the only reason he had the marijuana and methamphetamine was because Stoker asked him to do so, and that he was afraid to throw the drugs away. He denied that he intended to sell or distribute the marijuana and methamphetamine, and maintained that the marijuana found in possession of a woman on the day he was arrested was some he gave to her to hold for his personal use.

For his part, Stoker denied that he asked Rutledge to transfer marijuana to anyone or to put methamphetamine in his pocket on March 11 and Stoker denied that he owned drug devices found in Rutledge’s car on that date. Moreover, Stoker testified that he did not induce Rutledge to secure and hold the marijuana and any items in the bag for him or to bring the items to the shopping center, or pretend to sell the marijuana to the undercover policeman.

Although the trial court found that the defense of entrapment was raised as to Count 1, the sale to the undercover officer on March 10, the trial court found that the defense was not raised as to the offenses on March 11. Thus, the trial court charged the jury that the defense of entrapment applied only to the sale of marijuana on March 10. As the jury could not agree on Count 1, a mistrial was declared. Rutledge subsequently was convicted on the other offenses. Rutledge contends the trial court erred by not giving the entrapment charge on these offenses also. Held:

1. “A person is not guilty of a crime if, by entrapment, his conduct is induced or solicited by a government officer or employee, or agent of either, for the purpose of obtaining evidence to be used in prosecuting the person for commission of the crime. Entrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee, or with an agent of either, and he, by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.” OCGA § 16-3-25. The defense of entrapment is raised when the idea of the commission of the crime originated with the state agent, the crime was induced by the agent’s undue persuasion, incitement, or deceit, and the accused was not predisposed to commit the crime. Keaton v. State, 253 Ga. 70, 71 (316 SE2d 452). The predisposition of the defendant against committing the crime is a key element of the defense. Oswell v. State, 208 Ga. App. 883 (432 SE2d 586).

Considering Rutledge’s testimony in its entirety, we find that a charge on entrapment was not warranted because the defense of entrapment even as to Count 1 was not raised by the evidence. As this error was to Rutledge’s benefit, however, we further find that this error was harmless. Even though Rutledge’s testimony was that he had possession of the marijuana and methamphetamine on both March 10 and 11 because Stoker asked him to keep the drugs and that he was afraid to throw them away, this testimony is not sufficient to show that he was not predisposed to commit these offenses.

Although Rutledge’s testimony alleged that this plan originated with Stoker, nothing in the evidence shows that Rutledge was not a willing participant in the offenses. Therefore, no charge was required. Oswell v. State, supra at 884. Accordingly, the trial court did not err by refusing to charge that the defense applied to Count 3, possession of marijuana with intent to distribute within 1,000 feet of a high school on March 11, 1994; Count 4, possession of methamphetamine on March 10, 1994; Count 5, possession with intent to distribute more than one ounce of marijuana on March 11, 1994.

Further, because there was no evidence that Stoker in any manner induced Rutledge to transfer or sell the marijuana on March 11, however, the trial court also did not err by refusing to charge on entrapment as to that offense.

Decided July 12, 1995

Reconsideration denied July 26, 1995

August F. Siemon III, for appellant.

T. Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

2. Rutledge also contends the trial court erred by denying his motion for a directed verdict because the State did not rebut the defense of entrapment. “After a defendant presents a prima facie case of entrapment, the burden is on the [S]tate to disprove entrapment beyond a reasonable doubt. . . . [W]here there is no conflict in the evidence, and all the evidence prior to the entrapment that is introduced, with all reasonable deductions and inferences, demands a verdict of acquittal, the trial judge must direct a verdict of acquittal. [Cits.] The government’s burden is far greater than merely impeaching the accused, it ‘must go further and contradict this witness’ testimony as to the affirmative defense.’ ” Hill v. State, 261 Ga. 377 (405 SE2d 258); Wilkey v. State, 203 Ga. App. 1 (416 SE2d 350). Because the State rebutted Rutledge’s testimony that he was entrapped by Stoker to commit these crimes, we find that the trial court did not err by denying Rutledge’s motion for a directed verdict of acquittal. Although there is no specific evidence that Rutledge was predisposed to commit these offenses and the testimony from the police was that they had not heard of Rutledge until he was brought to their attention by Stoker tended to confirm the defense, Stoker’s testimony that he did not make or trick Rutledge into carrying around the drugs is sufficient to rebut Rutledge’s testimony within the meaning of Hill v. State, supra. Accordingly, this enumeration of error is without merit.

3. Rutledge’s contention that the trial court erred by refusing to give a charge on simple possession of marijuana as a lesser included offense of Count 2 is without merit. The only evidence regarding Count 2 is the State’s evidence that marijuana was sold and Rutledge’s testimony that he transferred the marijuana to another person to keep for him. In neither of these circumstances is simple possession of marijuana raised by the evidence. As there was no evidence that Rutledge simply possessed the marijuana, the trial court did not err by refusing to charge on that offense. See State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550).

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A0612.
    TYSON v. CHEEK MECHANICAL & ELECTRICAL SERVICE, INC.
    (460 SE2d 536)
   Birdsong, Presiding Judge.

Appellant Clelland Tyson d/b/a Misty Mills, Inc. (“Tyson”), appeals a jury verdict and judgment in favor of Cheek Mechanical & Electrical Service, Inc. (“Cheek”). Cheek filed a suit on account against Tyson, contending Tyson owed $18,150.55 for services rendered in the installation of a chicken litter processor designed by Tyson. Tyson did not provide Cheek with engineering plans to install the equipment. The system did not work to Tyson’s expectation, and Tyson hired another contractor.

In answer to Cheek’s suit, Tyson asserted accord and satisfaction, failure of consideration, and breach of warranty of services. Tyson also counterclaimed, contending that “[Cheek’s] design was flawed and the machinery did not work at all” and that the parties discussed the failure of the machinery and agreed that no further costs would be due until the machine worked properly, which it never did. Defendant Tyson sought from Cheek the cost of the second contractor’s work and completion costs. A jury returned a verdict in favor of Cheek for $4,500. Cheek filed a motion for new trial on general grounds. The motion for new trial was granted.

A second jury trial was held. After the close of evidence, Cheek moved for a directed verdict, contending that inasmuch as the prior jury returned a verdict in favor of only Cheek and only Cheek sought a new trial from that prior jury verdict, the grant of new trial did not apply to Tyson’s counterclaims, and those counterclaims should be dismissed. The trial court granted Cheek’s motion and dismissed Tyson’s counterclaims. The jury returned a verdict in favor of Cheek in the full amount sued for, $18,150.55.

On appeal, Tyson contends the trial court committed legal error by directing a verdict on Tyson’s counterclaim inasmuch as Tyson contends the grant of new trial to Cheek was a de novo retrial as to all parties. Held:

The sole question placed before us by this appeal is a question of law, viz. whether after granting a new trial to the plaintiff, the trial court was prohibited or without authority to dismiss the defendant’s counterclaims. Tyson contends that under OCGA § 5-5-48, when a new trial is granted, the new trial is placed on the docket “as though no trial had been had” and the trial court had no authority to dismiss its counterclaims. See, cited as general authority, Rawdin v. Conner, 211 Ga. 52 (84 SE2d 50); Bourquin v. Bourquin, 110 Ga. 440 (6) (35 SE 710); Anderson v. Clark, 70 Ga. 362 (2); Glisson v. Bankers Health &c. Ins. Co., 64 Ga. App. 300 (13 SE2d 84). Cheek argues that Tyson has suffered no actual harm.

Decided July 6, 1995

Reconsideration denied July 26, 1995.

Charles D. Strickland, for appellant.

Rodger E. Davison, for appellee.

However, even assuming the correctness of the authorities cited by Tyson, it is clear that if the new trial stands on the same footing as the prior trial and all the issues are tried anew, the trial court was authorized to grant a directed verdict at the close of the evidence at either trial “[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” OCGA § 9-11-50 (a). The trial court did not explain why it granted Cheek’s motion for directed verdict, and we shall not assume it did so for an erroneous reason. Beyond general allegations that the equipment Cheek fabricated and installed — which Tyson does not deny was designed by Tyson — failed to work, that no solution suggested by Cheek worked, that another contractor had to be hired, and that Cheek agreed no further charges would be made until the system worked, Tyson does not cite any particular evidence of record (see Court of Appeals Rule 27) which would indicate the trial court erred in concluding that all the evidence and all reasonable deductions demanded a verdict for Cheek. See B&C Tire &c. v. Cooper &c. Co., 212 Ga. App. 228, 231 (441 SE2d 468).

We note that we find no logic or merit in Cheek’s argument that Tyson “was not harmed by the [trial court’s] treating [Tyson’s counterclaim] as a set-off rather than charging the jury that the [counterclaim] could be considered [as] a set-off.” It cannot be assumed or inferred that the trial court treated Tyson’s counterclaim as a “set-off.” If the dismissal of the counterclaims had been improper under the standards for granting a directed verdict, it would have been error, for Tyson would have been entitled to have the jury address those claims. But as we find no reason to conclude the trial court erred on the evidence, the dismissal was not improper; Tyson was not improperly deprived by the trial court of its right to argue its counterclaims, for it had no such right if the counterclaims were properly dismissed. Moreover, it does not appear Tyson was prohibited from arguing or considering any material issue in defense of Cheek’s suit on account.

The trial court having committed no legal error, and no error on the evidence being cited to us, the judgment below must be affirmed.

Judgment affirmed.

Johnson and Smith, JJ., concur.


author: Blackburn, Judge. McMurray, Presiding Judge,

text:
    A95A0671.
    HARMON et al. v. CITY OF COLLEGE PARK et al.
    (460 SE2d 554)
   Blackburn, Judge.

On September 5, 1992, Carolyn Delores Harmon (decedent) drowned and was survived by her children, Reginald Bryan and Antonio Deon Harmon. Mattie Harmon, as administratrix applicant of the decedent’s estate and as guardian and next friend of the children, appellants/plaintiffs, commenced the underlying wrongful death action against the City of College Park (City) and Paul and Marlene T. Pichón. The appellees denied the material allegations of the complaint and moved for summary judgment. The trial court entered an order granting partial summary judgment on the motions because the decedent “assumed the risk of drowning, failed to exercise ordinary care for her own safety, and was, by her conduct the proximate cause of her own drowning.”

The evidence indicates that it had been raining heavily in the College Park area throughout the day and evening of September 4, 1992. Rainfall had been so heavy that the creek which separated the Villa Nieves Apartments from the tenant parking lot on Harvard Avenue had overflowed its banks and flooded adjacent areas. By midnight, flood waters had reached the handrail level on the concrete footbridge connecting the apartments to the parking lot.

At about midnight, the decedent decided to go to Nathaniel and Nettie Robinson’s apartment. She traversed the concrete footbridge which brought her to the front side of the apartment building at the end of the building directly abutting the creek. A straight, rear sidewalk ran parallel to the length of the apartment building, getting progressively closer to the creek before terminating on Harvard Avenue immediately to the left of the drainage culverts which ran under it. These culverts were a short, straight-line distance downstream from the footbridge and visible from it.

At the decedent’s request, Dennis Williams, another tenant of the apartments assisted the decedent as she crossed the footbridge by holding her arm. The water was up to the decedent’s waist as she crossed the bridge. Nathaniel Robinson watched the two from his apartment as they came across and heard them observe that they needed to exercise care as the water was high and moving quickly.

After arriving at the Robinsons’ apartment, the decedent declined the Robinsons’ offer to stay with them until it was over and expressed a desire to go to Melvin Blalock’s apartment, immediately saying to Blalock, “Come on. I got to go do my hair.” The decedent was in the apartment ten to fifteen minutes but never sat down, ignoring Blalock’s admonition to “chill out . . . it’s kind of bad out there.”

The decedent departed the Robinsons’ apartment by the back door because of the difficulty she had experienced on the footbridge. Nettie Robinson deposed that “[the decedent] walked right into [the waters],” evidencing that she knew the rear sidewalk was there. With Blalock behind her, she led the way down the sidewalk towards Harvard Avenue, beyond which was Blalock’s apartment. The decedent and Blalock moved hurriedly in water up to their waists. Neither used the chain link fence along the left side of the sidewalk to stabilize themselves. When they got beyond the end of the apartment building, light was sufficient for them to see the apartments across the street and the rapidly moving water in the vicinity of the drainage culverts. Waist-high waters, however, prevented them from observing the creek bed to the right of the sidewalk or other ground features.

As they neared Harvard Avenue, Blalock saw the decedent appear to veer to the right towards a whirlpool where the creek bed converged with three 48-inch drainage culverts running under Harvard Avenue. The decedent got caught in the whirlpool and disappeared under the water’s surface. Her body was never recovered.

Appellants contend that the trial court erred in granting the motions for summary judgment. In particular, they argue that the evidence of record establishes jury questions as to decedent’s status as a licensee, whether she exercised ordinary care for her own safety, whether she assumed the risk that resulted in her death, and whether her alleged failure to exercise ordinary care for her own safety proximately caused said death.

“We recognize the long-standing rule that issues of negligence and lack of ordinary care for one’s own safety are rarely appropriate matters for summary adjudication. Nonetheless, in certain instances, such as this, the trial court can conclude as a matter of law that plain, palpable and undisputed evidence establishes that plaintiff assumed the risk of her [death]. [Cit.]” Hackel v. Bartell, 207 Ga. App. 563, 564 (428 SE2d 584) (1993). “The danger of drowning in water is a palpable and manifest peril, the knowledge of which is chargeable to the decedent ... in the absence of a showing of want of ordinary capacity.” Bourn v. Herring, 225 Ga. 67, 69 (166 SE2d 89) (1969).

The trial court’s order states “[a] large body of rapidly moving water constitutes a clear and obvious dangerous condition. The dangers of walking through waist high water, which is rapidly moving near or into a drainage ditch, all without the benefit of being able to see ground features, when such action is undertaken by an individual suffering no deficiencies in capacity, all combine to present a clear and obvious case, as a matter of law, of an individual not exercising ordinary care for her own safety.” Moreover, the decedent was a person who could not have been other than thoroughly familiar with the area. She had used the footbridge before and at night, having visited the Robinsons at least ten times and Blalock “every three days” for two years while he was a tenant in the apartment complex. Neither would she have stepped unhesitatingly into the waters behind the Robinsons’ apartment had she not been familiar with the sidewalk running behind the building which was underwater and out-of-sight.

Immediately after the accident occurred, another resident of the apartments used the sidewalk to inspect the drowning scene. He deposed that he held on to the fence for the length of the sidewalk out of caution because “you can look over and see how fast the water is going. I’m not going in there if I can help it.” Nothing in the record suggests that the decedent should have been any less aware of the danger and concerned for her safety.

Pretermitting the decedent’s claims of negligence and nuisance as to the City and negligence as to the Pichons, where an intervening act is established as the proximate cause of injury or death, a valid defense arises in the defendant as a matter of law. Bartel, supra at 564. Accordingly, we find that the trial court properly granted the motions for summary judgment.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Smith and Ruffin, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as it is my view that the case sub judice is not one of those rare instances where the trial court may side-step a jury and resolve issues of negligence, contributory negligence or assumption of the risk as a matter of law. Further, it is my view that the majority erroneously adopts the trial court’s construction of proof and thereby fails to adhere to the requirement that, upon summary adjudication, the evidence must be viewed in a light which most favorably supports an opposing party’s claims. Salmon v. Pearson & Assoc., 214 Ga. App. 11 (446 SE2d 762). To this extent, there is no conclusive testimony which authorizes the trial court’s finding that Carolyn Harmon knowingly stepped into “water, which [was] rapidly moving near or into a drainage ditch. . . .” In fact, it is my view the same eyewitness testimony which appears to be the basis of this finding of fact would more likely authorize a finding that Carolyn Harmon slipped from an area of still waters and fell into a submerged drainage ditch while she was negotiating one of only two paths of egress (sidewalks) along the edge of the flood zone.

“ ‘ “(Q)uestions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and indisputable cases.” (Cit.) Added to that list are related issues of assumption of risk, lack of ordinary care for one’s safety, lack of ordinary care in failing to foresee a condition which could cause injury (cit.), and even where there is no dispute as to the facts, it is usually for the jury to say whether the conduct in question met the standard of the reasonable man. (Cit.) “Unless no other conclusion is permissible, questions of negligence are matters for jury resolution and are not ordinarily susceptible to summary adjudication.” (Cit.)’ Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832, 836 (331 SE2d 899) (1985).” Showalter v. Villa Prado Assoc., 182 Ga. App. 705 (356 SE2d 895).

In the case sub judice, the trial court found that genuine issues of material fact remain as to the City of College Park’s responsibility for maintaining a nuisance over the Pichons’ property, and to this extent, there is proof that the City of College Park and the Pichons were aware, long before Carolyn Harmon’s death, of the drainage defects and the resulting flash flooding and whirlpool which dragged the victim to an unknown watery grave. Further, there are indications that neither the City of College Park nor the Pichons did anything to remedy the danger before the drowning, foisting responsibility for the hazard by insisting that the burden of curing the defect rested with the opposite party. In either case, there is no question that genuine issues of material fact remain as to the liability of both the City of College Park and the Pichons for failing to abate the alleged nuisance. See Town of Fort Oglethorpe v. Phillips, 224 Ga. 834, 838 (165 SE2d 141); OCGA § 51-3-1. Nonetheless, the trial court pretermitted issues relating to any wrongdoing on the part of defendants, finding (as a matter of law) that Carolyn Harmon’s action in traversing “a body of rapidly moving waist high water” was the sole proximate cause of her death.

“ ‘(I)t is a plaintiffs knowledge of the specific hazard which precipitates the slip and fall which is determinative, not merely his knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which he observes and avoids.’ Telligman v. Monumental Properties, 161 Ga. App. 13, 16 (288 SE2d 846) (1982). See also Nicholson v. MARTA, 179 Ga. App. 173, 175 (345 SE2d 679) (1986); Burkhead v. American Legion, 175 Ga. App. 56, 57 (332 SE2d 311) (1985); Sears, Roebuck & Co. v. Reid, 132 Ga. App. 136, 138 (207 SE2d 532) (1974).” (Emphasis supplied.) Showalter v. Villa Prado Assoc., 182 Ga. App. 705, 706, supra. In the case sub judice, there is no dispositive proof that Carolyn Harmon was familiar with the specific area she was traversing at the time of her death, and it appears to be undisputed that the drainage ditch into which she fell was concealed by flood waters at the time of the fatal incident. Indeed, while Carolyn Harmon was obviously aware that she was walking through waist-high water before her death, I do not think that it can be said (as a matter of law) that Ms. Harmon was aware of just how precariously close the submerged drainage ditch was to the sidewalk she was traversing moments before her death. Further, while Carolyn Harmon had crossed the strong currents of the drainage ditch earlier in the evening before her death, there is no indication that she had ever before traversed the pooled waters in the area near where she drowned. Moreover, at the time Carolyn Harmon crossed the footbridge with her companion, the terrain was different and the scene presented flooding conditions (i.e., rapidly flowing water) which appeared to be far more dangerous than the still waters of the alternative route chosen by the decedent and her companion. Most persuasively, however, is the absence of proof that Carolyn Harmon was aware of the powerful suction at the narrow drain pipes which ultimately dragged the victim underwater and jettisoned her body to some obscure location within the City’s sewer system. Under these circumstances, I cannot go along with the majority in saying that the evidence demands a finding that Carolyn Harmon had a full appreciation of the specific danger which caused her death or that Ms. Harmon, in the exercise of ordinary care, should have avoided any attempt to escape the flood which separated the victim from her companion’s home. It is my view that any such conclusions are for a jury.

Decided July 12, 1995

Reconsideration denied July 26, 1995

Bauer, Deitch & Raines, Henry R. Bauer, Jr., Gilbert H. Deitch, for appellants.

Swift, Currie, McGhee & Hiers, John W. Campbell, Jenkins & Eells, Kirk R. Fjelstul, for appellees.

       The City’s water drainage system consists of naturally occurring and manmade features. The creek here involved is a naturally occurring component of such system.

       “ ‘[T]he doctrine of the assumption of the risk of danger applies only where the plaintiff, with a full appreciation of the danger involved and without restriction from his freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law he has assumed all risk of injury.’ (Citations, punctuation and emphasis omitted.) Moore v. Svc. Merchandise Co., 200 Ga. App. 463, 464 (408 SE2d 480) (1991).” Union Camp Corp. v. Dukes, 217 Ga. App. 95, 97 (456 SE2d 645) (1995).

       It would thus not be unreasonable (for a jury) to conclude that the cost and burden of curing the alleged nuisance sounded much louder to the City of College Park and the Pichons than ongoing complaints of residents who had been victimized by recurrent episodes of flash flooding in the area where Carolyn Harmon died.

       The trial court also concluded (as a matter of law) that Carolyn Harmon was a licensee on the Pichons’ property at the time of her death. I do not believe such a conclusion is demanded by the evidence. On the contrary, it appears to be undisputed that Ms. Harmon was invited as a guest by one of the landlords’ tenants just before the fatal incident, thus placing her within the status of invitee with regard to measuring the Pichons’ liability. Moon v. Homeowners’ Assn. of Sibley Forest, 202 Ga. App. 821, 822 (2) (415 SE2d 654).

       The majority points out that Ms. Harmon and her companion failed to hold onto the chain link fence along the left side of the sidewalk in apparent support of the view that the victim failed to exercise ordinary care for her own safety. This is good advocacy, but like most evidentiary arguments, there almost always remains more than one reasonable perspective. For example, it can just as persuasively be asserted that locating the fence on the opposite side of the sidewalk from the drainage ditch did nothing to protect pedestrians from falling into a hazardous area and even blocked any possible chance of giving the dangerous canal a wide berth during conditions of flash flooding, thereby constituting a hard element of the alleged nuisance.


author: Ruffin, Judge.

text:
    A95A0737.
    SIGNSATION, INC. et al. v. HARPER.
    (460 SE2d 854)
   Ruffin, Judge.

James Harper sued Signsation, Inc., and its president, Amararh Kisseih, for breach of contract, fraudulent misrepresentation, and promissory estoppel. He sought recovery of profits generated by machines he leased and provided to Signsation under a 1987 agreement and funds he lent them under 1989 written and oral agreements. Signsation and Kisseih appeal from the jury’s verdict and the court’s judgment in favor of Harper.

The 1987 agreement required Harper to furnish two machines to be used in Signsation’s sign-making business. In return, Harper was to receive 30 percent of the profits from the machines. The agreement stated that an accounting on the machines’ business would be provided on the twentieth of each month. It also indicated that the agreement would be dissolved if Signsation went out of business.

The 1989 loan agreement required Harper to lend $10,000 to Signsation in return for 33 percent of its ownership. It also provided that Signsation would repay the loan unless it ceased doing business. Signsation agreed to make minimum monthly payments of $300 to $400 on the loan. In addition, the agreement required that Signsation’s legal status be changed to reflect its altered ownership.

Harper claimed that between 1987 and 1989 he loaned Signsation and Kisseih over $25,600 under oral agreements that he would be repaid. When Signsation and Kisseih failed to honor the agreements, Harper removed the machines from the business, which folded several weeks later.

After a trial on the merits, the jury returned a verdict for Harper. It awarded him $37,934.52 in damages and $11,472.78 in attorney fees and expenses from Signsation and $12,434.52 in damages and $11,472.78 in attorney fees and expenses from Kisseih.

1. Kisseih argues that the trial court erred in refusing to give his requested jury charge on the Statute of Frauds which provides that promises to answer for the debt of another must be in writing.

The Statute of Frauds is a defense which generally must be raised affirmatively in the answer to a complaint. OCGA § 9-11-8 (c). Failure to raise it in the “pleadings, by motion, or in the pre-trial order” results in waiver of the defense. Brantley Co. v. Simmons, 196 Ga. App. 233, 234 (395 SE2d 656) (1990); Life Care Ambulance v. Hosp. Auth. of Gwinnett County, 202 Ga. App. 864, 866, n. 1 (415 SE2d 502) (1992). “It is too late to raise it initially in the middle of the trial. [Cit.]” Owens v. Owens, 248 Ga. 720, 722 (3) (286 SE2d 25) (1982) (statute of limitations is affirmative defense which cannot be raised in mid-trial). This rule may be inapplicable, however, when evidence pertaining to the issue is introduced without objection, the opposing party is not unfairly surprised, and the issue is actually litigated. See Bowers v. Howell, 203 Ga. App. 636 (1) (417 SE2d 392) (1992).

The record fails to demonstrate that Kisseih raised the Statute of Frauds defense at the pleading stage of this action. The complaint clearly specified that Harper was claiming money he loaned to the defendants under an oral agreement. Thus, Kisseih had reason to raise the affirmative defense but did not. Under these circumstances, raising the issue initially in written proposed jury charges during trial would not avert the waiver of the Statute of Frauds defense. Accordingly, the trial court properly declined to charge the jury on this issue.

2. Kisseih argues that the trial court erred in denying his motion for judgment n.o.v. because the verdict and amount of damages awarded lacked evidentiary support. He claims his motion was improperly denied because Signsation ceased operations when Harper removed his machines and Harper should not profit from this act. Kisseih further asserts that the evidence of lost profits was impermissibly speculative and the attorney fees award requires reversal because the refusal to pay a disputed claim is insufficient to establish stubborn litigiousness. He also maintains that judgment n.o.v. was warranted because, by their terms, the contracts at issue dissolved when Signsation went out of business.

The standard of appellate review for the denial of a motion for judgment n.o.v. is the “any evidence test.” Professional Consulting &c. v. Ibrahim, 206 Ga. App. 663, 665 (1) (426 SE2d 376) (1992). Under this test, the determinative question “is not whether the verdict and the judgment of the trial court were merely authorized, but is whether a contrary judgment was demanded.” (Citation and punctuation omitted.) Id. If any evidence, viewed in the light most favorable to the victor, supported the jury’s verdict, denial of the motion is not error. Id.

The evidence is sufficient to support the verdict. Harper presented evidence on the formation of the written and oral contracts, his performance of the oral contract, Kisseih’s failure to provide him with the agreed-to monthly accountings despite repeated requests, the inadequate payments Harper received, the amount of money Harper contended he should have received, Kisseih’s failure to restructure Signsation to reflect Harper’s 33 percent ownership of Signsation and provide Harper with stock certificates, and Harper’s unmet demands for payment from Kisseih. He also entered the written contracts into evidence, neither of which specified whether Kisseih was acting in his individual capacity or on behalf of Signsation.

As to whether the evidence of lost profits was impermissibly speculative, profits which can be traced solely to a breach of contract and are the immediate fruit of the contract, independent of any collateral enterprise, are recoverable. OCGA § 13-6-8. “[T]he rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages. Mere difficulty at fixing their exact amount, where proximately flowing from the alleged injury, does not constitute a legal obstacle in the way of their allowance. . . .” Ga. Ports Auth. v. Servac Intl., 202 Ga. App. 777, 780 (3) (415 SE2d 516) (1992).

Harper presented evidence of lost profits through charts showing monthly revenues from the machines and material costs from July 1987 through March 1989, monthly breakdowns of expenses from January through March 1989, and monthly breakdowns of revenues from January 1987 to December 1989. He also testified regarding the calculation of lost profits. This evidence, which proximately flowed from the alleged breach, was sufficient to support the jury’s verdict. Ibrahim, supra.

Kisseih presented no legal authority for his proposition that the contracts’ dissolution clauses mandated judgment n.o.v. The fact that the parties agreed to terminate the contract after Signsation ceased operations would not affect the damages for breaches of contract which occurred while the contracts were viable. See Lothridge v. First Nat. Bank of Gainesville, 217 Ga. App. 711 (1) (458 SE2d 887).

The jury may allow recovery of litigation expenses “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. . . .” OCGA § 13-6-11. Proof of only one of these conditions is required for recovery, but the mere refusal to pay a disputed claim will not satisfy this burden. Franchise Enterprises v. Ridgeway, 157 Ga. App. 458 (2) (278 SE2d 33) (1981). However, proof that no “bona fide controversy” exists and the plaintiff was forced to resort to the courts to collect is sufficient to establish that the defendant caused unnecessary trouble and expense. Id. The question of whether a bona fide controversy exists is for the jury. McDevitt & Street Co. v. K-C Air &c., 203 Ga. App. 640 (5) (418 SE2d 87) (1992).

Decided July 14, 1995

Reconsideration denied July 26, 1995.

Gordon G. Greenhut, for appellants.

Smith, White, Sharma & Halpern, Jonathan Goldberg, for appellee.

Harper testified that after he had made substantial payments under the contracts, Kisseih claimed that the contracts were not binding and refused to repay the money as agreed or arrange for the stock transfer required by the contract. This evidence was sufficient to support the award of attorney fees. Accordingly, the trial court properly denied the motion for judgment n.o.v.

3. Kisseih argues that the trial court erred in denying his motion to modify the judgment to conform to the evidence at trial. He maintains that, because the evidence failed to show any commingling of his assets with those of Signsation, the corporate veil was improperly pierced and he should not be held personally liable. He contends that the contracts at issue do not contemplate his personal liability and the Statute of Frauds bars the claims based on the oral contract.

The record shows that Kisseih failed to raise these issues when he moved to modify the judgment to conform to the evidence, thereby depriving the trial court of the opportunity to address them. We do not review issues raised initially on appeal. See Jones v. Brooks County Bd. of Commrs. of Roads & Revenues, 202 Ga. App. 515 (2) (414 SE2d 729) (1992). Moreover, in light of the findings in this case on the Statute of Frauds issue and the sufficiency of the evidence, this argument lacks merit.

4. Harper requests damages for frivolous appeal pursuant to OCGA § 5-6-6. Although we find no merit in the appeal, we cannot conclude it was asserted for purposes of delay. Accordingly, the motion is denied.

Judgment affirmed.

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


author: Johnson, Judge.

text:
    A95A0744.
    BYRD et al. v. DAUS.
    (460 SE2d 819)
   Johnson, Judge.

This appeal follows a jury verdict in favor of Kevin Daus, M.D., in a medical malpractice action brought by Angela Byrd, individually and as best friend and guardian for Jeffrey A. Byrd, and by the boy’s father, Jeffrey D. Byrd. They sought to recover for injuries sustained in connection with Jeffrey A. Byrd’s birth.

Angela Byrd was admitted to DeKalb Medical Center for induction of labor when her pregnancy had extended one-and-one-half weeks beyond the expected delivery date for her baby. After rupturing the uterine membranes, Byrd was administered the drug Pitocin to stimulate uterine contractions. Daus, her doctor, was not at the hospital, but had left specific instructions regarding the administration of the drug, and monitored Mrs. Byrd’s contraction pattern, as well as the fetal heart rate, via a connection with his home computer.

The drug hyperstimulated the uterus, resulting in an abnormal contraction pattern. Daus instructed the nurse to reduce by half the dose of the drug every 30 minutes. Nonetheless, the abnormal pattern continued. At 6:00 p.m., the fetal heart rate slowed and Daus immediately returned to the hospital, instructing the nurse from his car phone to prepare Byrd for an emergency Cesarean section. Daus was in the operating room when Byrd was brought in. After making an incision, Daus discovered that Byrd’s uterus had ruptured. Her baby was immediately delivered, but not before it had suffered extensive neurological damage.

1. The Byrds assert the trial court erred by refusing, after a request, to qualify prospective jurors with regard to relationships they may have with MAG Mutual Insurance Company, Daus’ insurance carrier. The trial judge, relying on Judge Beasley’s special concurrence in Franklin v. Tackett, 209 Ga. App. 448, 450 (433 SE2d 710) (1993), asked if anyone on the jury panel had a financial interest in the case. He explained that he believed this question satisfied the plaintiff’s right to exclude persons with an interest in the insurer from the panel, without impermissibly interjecting the issue of insurance into the case. Further, the trial judge noted that he was satisfied that no one on the panel could have a financial interest in MAG Mutual, because that company is owned exclusively by doctors and his review of the jury questionnaires revealed that no one on the panel identified himself or herself as a doctor.

In Patterson v. Lauderback, 211 Ga. App. 891, 895-896 (3) (440 SE2d 673) (1994), we acknowledged the method for eliminating questions of the prospective juror panel regarding insurance proposed by Judge Beasley in her special concurrence in Franklin, supra, and also suggested that written jury questionnaires might be a viable, less pub-lie, method for identifying jurors who might not be qualified because of a financial interest in the non-party insurer. Patterson, supra at n. 2, p. 895. Interestingly, the trial judge incorporated both of these suggestions in this case, asking if any juror had a financial interest in the outcome of the case, and reviewing the jury questionnaires to ascertain the professions of the panel. Despite our frustration with the rule regarding qualifying a jury panel as to non-party insurers, it remains intact. In both Patterson and Franklin we were constrained to reverse and remand the cases to the trial court for further proceedings, noting the Supreme Court’s long-standing position regarding the qualification of jurors with respect to possible financial interests in a defendant’s non-party insurer. See Atlanta Coach Co. v. Cobb, 178 Ga. 544, 549-551 (174 SE 131) (1934). “[T]he refusal of the court, upon request by plaintiffs’ counsel, to so qualify the jurors creates a presumption of harmful error, which unless in some way rebutted, requires the grant of a new trial. [Cit.]” Patterson, supra at 895.

The trial court’s conclusion from a review of the jurors’ questionnaires that there were no doctors on the panel, does not eliminate the possibility that someone on the panel has a financial interest in MAG Mutual. Even if there were no doctors on the panel itself, any member of one of their immediate families may be a doctor or an employee of the company, both of which could create a financial interest in the company such that its disclosure was mandatory. Under these circumstances, the presumption of harmful error arising from the trial court’s failure to qualify the jury panel after plaintiffs request has not been rebutted. The trial court erred in failing to qualify the jury panel with regard to MAG Mutual.

2. The trial court did not err in refusing to admit a document called the Administration of Pitocin Protocol. The protocol, which was in effect at DeKalb Medical Center in December 1992, was a guide to be used by nurses when a doctor was not present or in communication with the hospital staff. Byrd wanted to use the protocol, which indicates terminating the administration of Pitocin rather than halving the dose in the event of sustained contractions as ordered by Daus, to show that Daus’ treatment was contrary to the regimen recommended in the protocol. Daus argues the protocol was not probative of the standard of care for administration of Pitocin by doctors, and the hospital and nurses were not on trial. Specifically, Daus states in an affidavit submitted in support of his motion in limine to exclude the document, that the protocol was not in effect during Byrd’s labor and delivery because he had given specific orders to the nurse regarding the administration of the Pitocin to Byrd. At trial, the nurse who cared for Byrd testified that Daus had been readily available to her at all stages of Byrd’s labor and had given her specific orders regarding the administration of Pitocin. There was no evidence that the protocol was consulted in this case.

The only inquiry at trial was whether Daus was negligent; neither the hospital nor the nurse was on trial. Therefore, any document which established policy for the nurses to follow in the absence of specific directives from a doctor was not relevant to the issue being tried in this case and was, at most, collateral to that issue. “[E]vidence of collateral or other facts which is incapable of affording any reasonable presumption or inference as to a principal fact or matter in dispute, or evidence which is too remote, is irrelevant and inadmissible.” Thompson v. Moore, 174 Ga. App. 331 (1) (329 SE2d 914) (1985), rev’d in part on other grounds, 255 Ga. 236 (336 SE2d 749) (1985). Because nothing in the document could assist the jury in making a determination regarding a principal fact or matter in dispute, the trial court did not err in refusing to admit the protocol.

3. The trial court refused to charge the jury on the theory of concurrent negligence, which the Byrds now assert was error. Daus testified that he believed Byrd’s uterus ruptured during labor due to a weak spot. He identified several procedures described in Byrd’s medical history which could have caused a weak spot, including a dilation and curettage performed after a miscarriage, a previous forceps delivery and a cerclage, a procedure in which the cervix is temporarily stitched shut. The medical records showed that during the cerclage procedure, performed in this pregnancy by another doctor, one of the instruments tore the cervix, necessitating sutures. Daus testified that the tear was not the result of a deviation from the requisite standard of care by the other doctor, but was an event which could occur during such a procedure. No expert was called to offer an opinion concerning whether the cerclage had been performed negligently. “A charge on an issue not warranted by the evidence should not be given to the jury. Substantively correct or not, a charge which is not authorized by the evidence is presumed to be harmful.” (Citations and punctuation omitted.) Boulden v. Fowler, 208 Ga. App. 89, 90 (2) (429 SE2d 692) (1993). Because there was no evidence presented that the other doctor was negligent, a charge on concurrent negligence was not warranted and the trial court did not err in refusing to give the Byrds’ requested charge on that issue.

4. Finally, the Byrds argue that the trial court erred in giving defendant’s request to charge no. 18 because it gave the appearance of the court’s approval of Daus’ failure to be at his patient’s bedside.

The charge given was as follows: “I charge you ladies and gentlemen, that a physician is not necessarily expected, in the exercise of good medical practice, to remain at the bedside of a patient during such patient’s stay in the hospital. The doctor may leave the actual fulfillment of his prescribed treatment to others less skilled if this be in accordance with the practice of the profession generally under the same or similar circumstances.”

Decided July 11, 1995

Reconsideration denied July 26, 1995

Williams & Henry, Phillip C. Henry, Harvey R. Spiegel, for appellant.

Alston & Bird, Judson Graves, Lawrie E. Demorest, Frederick C. Dawkins, for appellee.

“The true rule is that a physician or surgeon is not expected to remain in constant attendance at the patient’s bedside, but may leave to others the duty of carrying out his prescribed treatments, with the right to assume that nurses employed by the hospital are competent to perform the duties which they are assigned.”

“A request to charge must embody a correct, applicable and complete statement of law, legal and perfect in form and adjusted to the pleadings and evidence; it must not be argumentative or seek an expression of opinion on the part of the court; and it must not be so phrased as to have tendency to confuse and mislead the jury or to becloud the issues in the case. [Cits.]” Cohen v. Sapp, 110 Ga. App. 413, 415 (2) (138 SE2d 749) (1964). The Byrds concede this charge is a correct statement of the law, but contend the charge gave the impression that the court condoned Daus’ treatment. During the charge conference, appellants asked the judge to add the qualifying phrase: “The question of whether a physician should be at the patient’s bedside is a question for you to determine based on all the evidence and circumstances presented. . . .” The judge declined to preface the charge with that language, but followed the challenged charge with the following instruction: “Now, what the physician should or should not have done in this case is for you, the jury, to decide.” Pretermitting whether the language in the charge as given might have improperly reflected the court’s opinion, the final charge clearly informed the jury that it was the final arbiter of whether the doctor’s failure to be at Byrd’s bedside constituted negligence. Therefore, we conclude that the charge, as given, was not error.

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.