text:
    A94A1709.
    HOWELL v. SOUTHERN HERITAGE INSURANCE COMPANY.
    (448 SE2d 275)
   Birdsong, Presiding Judge.

William L. Howell appeals from the grant of summary judgment to Southern Heritage Insurance Company on his claims against Southern Heritage for punitive damages under OCGA § 33-4-6 and attorney fees and expenses of litigation under OCGA § 13-6-11. Howell claims that, in bad faith, Southern Heritage refused his demand for payment of personal injury protection (“PIP”) benefits.

Howell, a truck driver, was injured unloading one of his employer’s trucks. Several months later he filed a claim with Southern Heritage as his PIP insurance carrier. Although Southern Heritage initially questioned coverage, it made a partial payment of $18,000 based upon the opinion of one of Howell’s treating physicians that Howell was cured and able to return to work. Then, following an independent medical examination which found that Howell was still disabled, Southern Heritage tendered another payment for the full amount of the PIP benefits due. Howell, however, rejected this payment because an endorsement on the check stated that the payment was for the full amount owed him, and Howell intended to pursue a PIP claim under OCGA § 33-4-6 for the penalties authorized when PIP benefits are not timely paid.

Asserting uncertainty whether possible payments under its policy might duplicate those paid by the insurance carrier covering the truck that Howell was unloading when he was injured, Southern Heritage filed a declaratory judgment action. Howell answered and filed a counterclaim for penalties under OCGA § 33-4-6. Following this court’s decision in Terry v. State Farm Mut. Auto. Ins. Co., 205 Ga. App. 224 (422 SE2d 212), holding that penalties under OCGA § 33-4-6 were no longer authorized, Howell amended his complaint to assert claims under OCGA §§ 33-4-6 and 13-6-11.

After the trial court granted Southern Heritage’s motion for summary judgment, Howell filed this appeal pursuant to OCGA § 9-11-56 (h). He contends the trial court erred because the tender of the payment was conditional. Held:

1. Pretermitting Howell’s argument concerning the conditional tender, it is apparent that the court below correctly granted summary judgment to Southern Heritage. An insurance company is liable for penalties under OCGA § 33-4-6 when it fails to pay a covered loss within 60 days after a demand for payment has been made and there has been a finding that the refusal to pay was in bad faith. The purpose of the section is to penalize insurers that delay payments without good cause. Ga. Intl. Life Ins. Co. v. Harden, 158 Ga. App. 450 (280 SE2d 863).

Decided August 29, 1994.

McCrimmon & McCrimmon, Edward W. McCrimmon, for appellant.

Dennis, Corry, Porter & Gray, Frederick D. Evans III, for appel-lee.

As the section imposes a penalty, it is strictly construed (Progressive Cas. Ins. Co. v. Avery, 165 Ga. App. 703 (302 SE2d 605)); consequently, a proper demand for payment is essential to recovery. Hanover Ins. Co. v. Hallford, 127 Ga. App. 322 (193 SE2d 235). In this sense, a demand for payment must be made when immediate payment is in order. Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga. App. 697 (172 SE2d 159).

As Howell’s counterclaim seeking penalties for bad faith refusal to pay his PIP claim was filed on March 10, 1992, and the letter which constitutes the demand under OCGA § 33-4-6 is dated July 6, 1992, the demand was not proper under OCGA § 33-4-6 even though Howell subsequently amended his complaint to assert a claim under OCGA § 33-4-6.

2. Howell’s claim for attorney fees and expenses of litigation under OCGA § 13-6-11 is not authorized. The penalties contained in OCGA § 33-4-6 are the exclusive remedies for an insurer’s bad faith refusal to pay insurance proceeds. McCall v. Allstate Ins. Co., 251 Ga. 869 (310 SE2d 513).

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A94A1842.
    FIRST FINANCIAL INSURANCE COMPANY v. MATHIS.
    (448 SE2d 87)
   Birdsong, Presiding Judge.

Appellee Wimp Mathis brought suit for damages and penalty against appellant First Financial Insurance Company to recover under the terms of a policy of insurance following the destruction of his mobile home and its contents by fire. Appellant’s motion for summary judgment was denied by the trial court, and appellant filed an application for interlocutory review with this court. Although appellant’s application was initially granted and an appeal filed pursuant to that grant, this court subsequently determined that the application was improvidently granted, vacated its order granting the application, and dismissed the appeal. The case proceeded to trial by jury resulting in a plaintiff’s verdict. Judgment was entered in favor of appellee and against appellant in the amount of $15,100 actual damages,

$4,000 attorney fees, and $2,880 interest. Appellant filed notice of direct appeal of the trial court’s denial of appellant’s motion for summary judgment, asserting that said appeal is ripe for consideration as there now has been a final judgment entered in the case. Appellant’s sole enumeration of error is that “the trial court erred in denying [appellant’s] motion for summary judgment.” In its appellate brief, appellant concedes that “the sole issue before the Court of Appeals is whether the trial court erred in denying [appellant’s] motion for summary judgment.”

The record of trial reveals that no timely motion for new trial or for judgment n.o.v. has been filed. Further, the notice of appeal expressly provides that appellant “does not require preparation of the trial transcript.” Held:

Appellee, citing, inter alia, Trade City G. M. C. v. May, 154 Ga. App. 371 (268 SE2d 421); Melton v. Bow, 145 Ga. App. 272 (243 SE2d 590); Phillips v. Abel, 141 Ga. App. 291 (233 SE2d 384); and Patterson v. Castellaw, 119 Ga. App. 712 (168 SE2d 838), contends that the issue of the trial court’s denial of summary judgment is moot. For reasons hereinafter discussed we find in favor of appellee.

In Hill v. Willis, 224 Ga. 263, 266 (161 SE2d 281), it was held: “A motion for a summary judgment is somewhat analogous to a motion for a nonsuit, for if, after being overruled, even if done improperly, all the evidence shows that a verdict for the opposing party is authorized, the error is harmless. The purpose of permitting summary judgments is to dispose of unnecessary trials and not to upset a verdict authorized by the evidence merely because at a previous stage of the case a finding may not have been authorized in accordance with such verdict.” This general rule was restated in Dunlap v. Dunlap, 234 Ga. 304, 306 (3) (215 SE2d 674) as follows: “Where a motion for summary judgment is overruled on an issue and the case proceeds to trial and the evidence at the trial authorizes the verdict (judgment) on that issue, any error in overruling the motion for summary judgment is harmless.”

In this case, an examination of the parties’ proposed consolidated pretrial order in its totality, including the factual issues therein identified for determination by the jury, reveals that the substantially similar factual issues asserted in appellant’s brief were destined to be submitted for jury resolution. In any event, appellant has elected not to file any enumeration of error challenging the sufficiency of the evidence to support the jury verdict or asserting any specific claim of reversible error occurring during the course of trial. Accordingly, these issues have not been preserved for appeal, and no viable appellate challenge has been effected as to the verdict and resulting judgment in this case. See Krebsbach v. State, 209 Ga. App. 474, 475 (2) (433 SE2d 649). In the absence of a viable enumeration of error as to the verdict or judgment supported by an affirmative showing by the record of reversible error, we must assume that the verdict and judgment is supported by the evidence. See Bennett v. Executive Benefits, 210 Ga. App. 429 (436 SE2d 544); Spires v. Glencastle, Inc., 208 Ga. App. 901, 902 (432 SE2d 567). “Every presumption of legality will be made in favor of a judgment by a court of competent jurisdiction [cit.]; and it will be presumed that a judgment of a court of competent jurisdiction is supported by every fact essential to make such judgment valid and binding.” Merrill Lynch &c. v. Echols, 138 Ga. App. 593, 594 (2) (226 SE2d 742). In view of the above, we need not revisit the scope of viability of Schirmer v. Amoroso, 209 Ga. App. 682 (434 SE2d 80) as it is clearly inapposite. The case at bar is not a case to be remanded for new trial, because appellant has not affirmatively established by the record that the verdict is unsupported by the evidence; neither is it a direct appeal of any other judgment, ruling or order to which the issue of denial of summary judgment could attach pursuant to OCGA § 5-6-34 (d). Additionally, appellant elected not to file a trial transcript with this appeal; appellant could only establish by the trial transcript that the verdict and judgment were not supported by admissible evidence of record or that other reversible error had occurred during trial. Where a trial transcript is necessary for review and appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm. Brown v. Frachiseur, 247 Ga. 463, 464-465 (277 SE2d 16); compare Gillespie v. Gillespie, 259 Ga. 838 (388 SE2d 688).

Decided August 29, 1994.

Crim & Bassler, Joseph M. Murphey, Kimberly L. Schwartz, Kelly A. Lee, for appellant.

Richard A. Childs, for appellee.

Our review reveals that there exists no legal basis, on the state of the existing record, by which this court could conclude that the verdict was not supported by the evidence; accordingly, any error arising from the denial of summary judgment would be rendered harmless (Hill, supra) and also that the appellate issue of denial of the summary judgment motion was rendered moot. Talmadge v. Talmadge, 241 Ga. 609 (1) (247 SE2d 61). Accordingly, the appeal shall be dismissed as the question presented for appellate review has become moot. OCGA § 5-6-48 (b) (3); compare Seabolt v. Cincinnati Ins. Co., 199 Ga. App. 715 (405 SE2d 757).

Appeal dismissed.

Blackburn and Ruffin, JJ., concur.


author: Andrews, Judge.

text:
    A94A1646.
    ROBERTS v. CARTER.
    (448 SE2d 239)
   Andrews, Judge.

Carter sued Roberts d/b/a Munchey’s Used Cars for injuries he sustained while doing repair work on a truck at Roberts’ place of business. We granted Roberts’ application for an interlocutory appeal from the trial court’s denial of his motion for summary judgment.

Carter crawled under the truck while it was being held off the ground by a hoist and chain. The chain broke and the truck fell, injuring Carter. Carter alleged that the chain provided by Roberts to hoist the truck was inadequate for the job and created a dangerous condition on the premises which proximately caused his injuries. Roberts sought summary judgment on the basis that Carter assumed the risk of crawling under the truck while it was supported by only the hoist and chain.

Construing the facts in favor of Carter as the respondent to the motion for summary judgment, the record shows that Roberts invited Carter onto the premises for the purpose of attempting a minor repair job on the truck. The job required that the front end of the truck be lifted off the ground so that Carter could get under it to do the work. Roberts provided a hoist and chain to lift the truck. Carter testified that, after the truck was hoisted up with the chain, he knew that it was unsafe to rely solely on the chain to hold up the truck while he worked underneath it and knew that supports needed to be placed under the truck as safety devices to prevent the truck from falling on him if the chain did not hold. Carter was an experienced mechanic, who testified that, when working under a hoisted vehicle, it was customary to use fixed supports as a safety device to prevent the vehicle from falling.

After the truck was hoisted, Roberts agreed supports were needed under the truck and, after no supports could be found in the immediate area, Roberts stated he would go retrieve some from his house located a short distance away. Carter testified that, as Roberts left to go get the supports, Roberts told him to crawl under the truck to see what kind of tools he would need for the repair job and told him that the chain should hold the truck while he did so. Carter testified that, following Roberts’ instructions and relying on Roberts’ statement that the chain should hold, he crawled under the truck to determine the tools he would need. While he was under the truck without safety supports, the chain broke and the truck fell on him. Carter admitted he knew it was dangerous to go under the unsupported truck because he did not expect the chain to hold. Carter also testified that he was not compelled or coerced by Roberts or any emergency situation to go under the truck without supports.

Having invited Carter onto the premises for the purpose of repairing the truck, Roberts was liable for any injuries to Carter proximately caused by his failure to exercise ordinary care to keep the premises safe. OCGA § 51-3-1. Nevertheless, assuming Roberts was negligent in providing an inadequate chain and in telling Carter to go under the unsupported truck, “[a] person cannot undertake to do what obviously is a dangerous thing, even if he is directed by another, without assuming the risks incident thereto and without himself being guilty of such lack of due care for his own safety as to bar him from recovery.” (Citation and punctuation omitted.) Meriwether Memorial Hosp. Auth. v. Gresham, 202 Ga. App. 535, 536 (414 SE2d 694) (1992); Forde v. C & S Ga. Corp., 178 Ga. App. 400, 402-403 (343 SE2d 164) (1986). “One who knowingly and voluntarily takes a risk of physical injury the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety, can not hold another liable for damages, although the same may be in part attributable to the latter’s negligence.” (Citation and punctuation omitted.) Taylor v. Schander, 207 Ga. App. 627 (428 SE2d 806) (1993).

Carter, an experienced mechanic familiar with the risks of working under hoisted vehicles, clearly did not rely on any assurance given by Roberts. Compare Cherokee Brick Co. v. Hampton, 16 Ga. App. 53 (84 SE 328) (1914); Shepard v. Streetman, 198 Ga. App. 474 (402 SE2d 87) (1991). Moreover, Carter’s course of action was voluntary and not restrained by any coercive circumstances or emergency. Moore v. Svc. Merchandise Co., 200 Ga. App. 463, 464 (408 SE2d 480) (1991); compare Kitchens v. Winter Co. Builders, 161 Ga. App. 701, 702-703 (289 SE2d 807) (1982).

Because Carter fully comprehended and acquiesced in the danger of working under the unsupported truck, he assumed the risks incident to his own voluntary actions, which were the sole proximate cause of his injuries. Leonardson v. Ga. Power Co., 210 Ga. App. 574, 576 (436 SE2d 690) (1993). Although negligence and proximate cause are usually issues for jury determination, the undisputed facts in this case clearly establish that Carter assumed the risk of injury and is barred from recovery. Taylor, supra. Accordingly, the trial court erred by denying Roberts’ motion for summary judgment.

Judgment reversed.

Beasley, P. J., and Johnson, J., concur.

Decided August 12, 1994

Reconsideration denied August 30, 1994 —

Warren C. Grice, for appellant.

John J. Czura, James B. Duncan III, for appellee.


author: Blackburn, Judge.

text:
    A93A0412.
    WILLIAMS v. AFLAC, INC.
    (448 SE2d 500)
    Decided August 30, 1994.

      Long, Weinberg, Ansley & Wheeler, Ben L. Weinberg, Jr., Emily J. Brantley, for appellant.

      Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, Brian R. Neary, Hatcher, Stubbs, Land, Hollis & Rothschild, Joseph L. Waldrep, for appellee.

      Champion & Champion, Forrest L. Champion, amicus curiae.
   Blackburn, Judge.

In Williams v. AFLAC, Inc., 209 Ga. App. 841 (434 SE2d 725) (1993), we reversed the trial court’s grant of AFLAC, Inc.’s motion for summary judgment in this declaratory judgment action. The Supreme Court granted certiorari and reversed our decision in AFLAC, Inc. v. Williams, 264 Ga. 351 (444 SE2d 314) (1994), concluding that the liquidated damages clause in the retainer agreement was unenforceable. Accordingly, our judgment in this case is vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed.

Johnson and Smith, JJ., concur.


author: Pope, Chief Judge.

text:
    A94A1110.
    WHITE v. NANTUCKET INDUSTRIES et al.
    (448 SE2d 278)
   Pope, Chief Judge.

Claimant injured her wrist while working for employer , and was subsequently fired for reasons unrelated to the injury. As a result of the work-related wrist injury, claimant was unable to earn her pre-injury wage. She was able to find a job as a sitter for an elderly woman, however, and thus was entitled to temporary partial disability benefits equal to two-thirds of the difference between her pre-injury wage and her wage as a sitter. See OCGA § 34-9-262. Then, in January 1993, claimant fell and broke her leg. Employer asserted that its obligation to pay partial disability benefits ceased at that point, because any disability subsequent to her fall was caused by her fall (which was not covered by workers’ compensation) rather than her wrist injury (which was covered by workers’ compensation). The administrative law judge and board accepted this assertion, ruling that employer was obligated to pay temporary partial disability benefits only until the time of the fall, and the superior court affirmed. We granted claimant’s application for discretionary appeal and now reverse.

Citing Aden’s Minit Market v. Landon, 202 Ga. App. 219 (413 SE2d 738) (1991) and Evco Plastics v. Burton, 200 Ga. App. 121 (407 SE2d 60) (1991), employer argued that claimant bore the burden of proving that her post-fall inability to earn her pre-injury wage was caused by her work-related wrist injury; and the superior court based its affirmance on claimant’s failure to meet that burden. However, Landon and Burton only place this burden on the claimant when the claimant asserts a change in condition (i.e., the claimant is seeking a resumption of benefits after a period in which she was not entitled to them). In this case, it is now undisputed that claimant’s disability was caused by her work-related injury up until her fall, so she was entitled to disability benefits until then. Thus, it was the employer rather than claimant who sought to show a change of condition, and the employer rather than claimant who bore the burden of proof on causation. See Johnson Controls v. McNeil, 211 Ga. App. 783, 785-786 (1) (440 SE2d 528) (1994).

In McNeil, we held that where it could not be determined from the evidence whether an initially disabling injury continued to be disabling, the employer had failed to meet its burden of proving a change in condition, and the claimant’s disability benefits should have continued. As in McNeil, the record here does not show how long the disability caused by the covered wrist injury continued. Therefore, claimant’s temporary partial disability benefits should continue until the date employer can prove claimant is able to earn her pre-injury wage or that her inability to earn such a wage is not caused by her covered wrist injury.

Decided August 30, 1994.

Mundy & Gammage, George E. Mundy, E. Lamar Gammage, Jr., for appellant.

Swift, Van Buskirk & Ellis, David A. Swift, Zirkle & Smith, Eric S. Jones, Perry M. Sartain, Sligh, Presmanes & Jackson, Gregory T. Presmanes, E. Lee Southwell, for appellees.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.

       Although claimant was unable to continue her job as a sitter after her fall, she does not suggest that her disability benefits should have increased from partial to total as a result of that accident; she simply argues that employer’s obligation to pay partial disability benefits at the same rate as before the fall continued despite the unrelated injury.

       Employer contends claimant admitted at the hearing that her disability after the fall was caused by the fall, but a review of the cited testimony reveals that claimant testified that she could not continue her job as a sitter because of her fall. Since claimant only seeks partial disability benefits based on the difference between her pre-injury wage and what she was making as a sitter, the cause of her loss of her job as a sitter is irrelevant.


author: Beasley, Presiding Judge. Andrews, Judge,

text:
    A94A0685.
    ROWLAND v. COLQUITT et al.
    (448 SE2d 457)
   Beasley, Presiding Judge.

While a guest at a party given by Rogers, his friend Rowland sustained severe neck injuries after diving from a diving board into a swimming pool which was only four feet deep. Rowland filed the present complaint against Rogers, his stepfather Colquitt, and the pool manufacturer. Rowland appeals the trial court’s grant of Colquitt’s motion for summary judgment.

Rowland alleged in her complaint as originally filed that the pool is located on the premises of a residence owned by Colquitt and leased by him to Rogers. Rogers and Colquitt testified that Rogers leased the residence from Colquitt pursuant to an oral agreement; that Colquitt had relinquished all responsibility for inspection, maintenance, and repair to Rogers; and that Rogers made rental payments to Colquitt in the amount of $500 per month by check. Certified bank records did not show any $500 checks to Colquitt. Rowland amended her complaint to delete the allegation that Rogers leased the property from Colquitt.

It is nonetheless undisputed that Rogers lived on the property with Colquitt’s permission; that Colquitt did not live there; and that the pool was purchased, installed, and maintained by Rogers after he moved onto the property. Colquitt admitted that he knew that Rogers was installing the pool, that it was only four feet deep, and that a diving board had been attached to it.

According to Rowland, the pool was located above ground, but she was not aware that it was only four feet deep because its shallow depth was obscured by a deck and fence surrounding it; moreover, it was poorly lit and no warning signs were posted. Rowland’s testimony was to the effect that the party given by Rogers was filled with revelry. According to her, others at the party were having sexual relations in the pool, and Rogers was trying to persuade her to do the same. She admitted that she had consumed two large mixed drinks, two beers, and a “line” of cocaine provided by Rogers. However, she refused to participate in an orgy. She testified that upon being badgered and coaxed by Rogers and physically dragged by him to the pool, she agreed to go skinny dipping and dive from the diving board into the pool. She had seen Rogers dive from the board without ill effect. He did not warn her of the dangerous condition. Unaware of it, she proceeded to disrobe and dive into the pool head first with her arms extended in front of her head. She immediately hit the bottom, sustaining the injuries for which she now sues.

In moving for summary judgment, Colquitt argued that he is not liable to Rowland under the statute which controls a landlord’s liability to third persons, OCGA § 44-7-14, because the undisputed material facts show that the pool was constructed and maintained by Rogers, and Colquitt had fully parted with possession of the property. He also argued that by diving into the pool in her alcohol-and-drug affected condition, Rowland assumed the risk of injury.

1. Colquitt is not entitled to summary judgment. In this case, as in others, issues of negligence, contributory negligence, and assumption of risk are not susceptible to summary adjudication.

OCGA § 44-7-14 provides, “Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.” The landlord’s duty to keep premises in repair can result in making him liable for a defect in the premises of which he has notice or actual knowledge. See Hearn v. Barden, 115 Ga. App. 708, 709 (155 SE2d 649) (1967); Howell Gas of Athens v. Coile, 112 Ga. App. 732, 735 (1a) (146 SE2d 145) (1965). Where defects render premises unsafe, the landlord may not avoid these statutory duties. Roth v. Wu, 199 Ga. App. 665, 666 (1) (405 SE2d 741) (1991). Under OCGA § 44-7-13, the landlord “shall be liable for all substantial improvements placed upon the premises by his consent.”

Therefore, even though the pool was constructed and maintained by the tenant, the landlord is statutorily liable for damages arising from defective construction if he has consented to it and has notice or actual knowledge of the dangerous condition which has been created. The landlord is likewise liable for the tenant’s maintenance of a nuisance, if done with the landlord’s license or permission. It is undisputed that Rogers built the shallow pool and attached a diving board to it with Colquitt’s knowledge and permission.

Rowland argues that an issue of fact exists as to whether a landlord-tenant relationship existed between Colquitt and Rogers, and thus whether Colquitt parted with possession of the property or the right of possession, because Colquitt has introduced false deposition testimony that Rogers paid rent to him. However, when the owner of lands grants to another person simply the right to possess and enjoy the use of lands and the other person accepts the grant, the relation of landlord and tenant exists between them. Thompson v. Crownover, 259 Ga. 126, 127 (1) (381 SE2d 283) (1989). Payment of rent is not an essential element of a landlord-tenant relationship. See Black’s Law Dictionary, p. 1635 (Rev. 4th ed., 1968).

Nonetheless, it could be argued that when rent is not paid, the relationship between the parties is more in the nature of that of a host and guest, and the owner of the property is not bound by the statutory duties of a landlord. This would actually make the plaintiff’s burden greater, and Colquitt has not even advanced that argument.

If a landlord-tenant relationship did not exist between Colquitt and Rogers, then as the owner of the property Colquitt would incur liability for breach of duty to Rowland as a licensee or social guest only for wilfully and wantonly causing her injury. OCGA § 51-3-2 (b). See, e.g., Moon v. Homeowners’ Assn. of Sibley Forest, 202 Ga. App. 821, 822 (2) (415 SE2d 654) (1992). Thus, as to a licensee, a duty arises to keep the property free of “pitfalls, man-traps, and things of that character.” Mandeville Mills v. Dale, 2 Ga. App. 607, 610 (1) (58 SE 1060) (1907), quoted recently in Francis v. Hay good Contracting, 199 Ga. App. 74, 75 (1) (404 SE2d 136) (1991), and Moon v. Home owners’ Assn., supra. An owner owes a licensee a duty not to “ ‘knowingly let him run upon a hidden peril or wilfully cause him harm.’ ” Atlantic Coast Line R. Co. v. O’Neal, 180 Ga. 153, 156 (178 SE 451) (1935).

The definition of the owner’s duty is as follows: “ ‘A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved. . . London Iron &c. Co. v. Abney, 245 Ga. 759, 761 (2) (267 SE2d 214) (1980). The rule imposing liability for harm to licensees “presupposes that the licensees do not know or have reason to know of the risks involved. [Cits.]” Wren v. Harrison, 165 Ga. App. 847, 849 (303 SE2d 67) (1983).

A jury could find that a diving board above a four-foot deep pool, with no warning of depth, is a hidden peril of which a licensee would not have knowledge or reason to know of the risks involved in using it in an ordinary way. Where a diving board has been attached to a swimming pool of obscured shallow depth, such improvement can be found to have been constructed in a defective manner and to constitute an unsafe and dangerous condition.

2. Under the facts and circumstances of this case as thus far developed in the record, it cannot be held that, as a matter of law, plaintiff assumed the risk that the pool into which she dove was too shallow for her dive. Whether Rowland exercised ordinary care is a jury question. Ruling otherwise means that diving from a diving board without independently determining water depth but relying instead on the presence of the board, seeing someone else dive safely from it, and judging depth from the posture of others in the pool, constitutes assumption of risk as a matter of law.

The dissent holds this to be a situation for application of the principle that “[a] person cannot undertake to do what is obviously a dangerous thing and at the same time avoid the responsibility for the self-assumed risk.” First Pacific Mgmt. Corp. v. O’Brien, 184 Ga. App. 277, 281 (361 SE2d 261) (1987). A jury should decide.

“ ‘ “Assumption of risk in its simplest and primary sense means that the plaintiff has given his express consent to relieve the defendant of an obligation of conduct toward him and to take his chance of injury from a known risk. ‘The result is that the defendant is simply under no legal duty to protect the plaintiff. A second, and closely related meaning, is that the plaintiff, with knowledge of the risk has entered voluntarily into some relation with the defendant which necessarily involves it, and so is regarded as tacitly or impliedly agreeing to take his own chances.’ [Cit.] ‘[T]he courts have arrived at the conclusion that assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it. [Cits.]” Lundy v. Stuhr, 185 Ga. App. 72, 75 (363 SE2d 343) (1987).

This case differs from Plantation at Lenox Unit Owners’ Assn. v. Lee, 196 Ga. App. 420, 421 (2) (395 SE2d 817) (1990), in that a jury could determine that plaintiff exercised reasonable care in relying on the presence of a diving board, and on having seen her host dive with no ill effect, as indication that the pool was deep enough for a dive. In Plantation, the plaintiff dove from the side of the pool with no indication of adequate depth.

Using alcohol and drugs and diving into a pool after ingesting such substances may be relevant to whether plaintiff assumed the risk of sustaining injury. There is conflicting evidence of whether the shallow depth of the above-ground pool was known to her. We cannot hold as a matter of law that if plaintiff had been abstinent, the shallow depth of the pool would have been a peril obvious to her or she would not otherwise have been injured. Compare Weatherby v. Honda Motor Co., Ltd., 195 Ga. App. 169 (393 SE2d 64) (1990).

Judgment reversed.

Pope, C. J., McMurray, P. J., Blackburn, Smith, JJ., and Senior Appellate Judge Harold R. Banke concur. Birdsong, P. J., Andrews and Johnson, JJ., dissent.

Andrews, Judge,

dissenting.

Colquitt was entitled to summary judgment because, as a matter of law, Rowland failed to exercise ordinary care for her own safety when she voluntarily dove into the pool without ascertaining the depth of the water.

If Colquitt was Rogers’ landlord, then Rowland, as Rogers’ social guest on the premises, was an invitee as to Colquitt and Colquitt owed Rowland a duty to exercise ordinary care to insure that the pool, which was constructed on the premises with Colquitt’s knowledge and consent, was reasonably safe. Moon v. Homeowners’ Assn. of Sibley Forest, 202 Ga. App. 821, 822 (415 SE2d 654) (1992); OCGA § 44-7-13. If there was no landlord-tenant relationship between Col-quitt and Rogers, then as to Colquitt, Rowland occupied the status of a social guest-licensee on the premises and Colquitt owed Rowland a duty not to wilfully or wantonly cause her injury. Sims v. Willoughby, 179 Ga. App. 2, 3 (345 SE2d 626) (1986). Regardless of whether Rowland occupied the status of invitee or licensee, in either case, the basis for imposing liability on Colquitt is the rule that a proprietor’s liability must be premised on his superior knowledge of a dangerous condition or hazard that was the proximate cause of the invitee’s or licensee’s injury. See Bunch v. Stanton, 174 Ga. App. 233, 235 (329 SE2d 538) (1985), rev’d on other grounds, Moon, supra at 824; Coates v. Mulji Motor Inn, 178 Ga. App. 208, 210 (342 SE2d 488) (1986).

In premises liability cases where liability is predicated on the proprietor’s superior knowledge, “if [the proprietor’s invitee or licensee] knows of the condition or hazard, there is no duty on the part of the proprietor to warn the invitee [or licensee] and there is no liability for resulting injury because the invitee [or licensee] has as much knowledge as the proprietor does.” (Citations and punctuation omitted.) Froman v. Smith, 197 Ga. App. 338, 339 (398 SE2d 413) (1990). The rule that a plaintiff with equal knowledge of a dangerous condition or hazard on the premises cannot recover is the practical application of the rule that a plaintiff cannot recover if by ordinary care he could have avoided the consequences of the defendant’s negligence. OCGA § 51-11-7; O’Steen v. Rheem Mfg. Co., 194 Ga. App. 240, 242 (390 SE2d 248) (1990); Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (422 SE2d 305) (1992). The rule in such cases remains that the invitee or licensee must exercise ordinary care for their own safety and must by the same degree of care avoid the effect of the proprietor’s negligence when it becomes apparent to them or in the exercise of ordinary care they should have learned of it. Amear v. Hall, 164 Ga. App. 163, 167 (296 SE2d 611) (1982); Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). In exercising ordinary care to avoid a dangerous condition or hazard, an invitee or licensee has a duty to make reasonable use of all of their senses to discover and avoid the danger. Alterman Foods, supra.

This case is controlled by our decisions applying the above principles in similar situations in Plantation At Lenox Unit Owners Assn. v. Lee, 196 Ga. App. 420 (395 SE2d 817) (1990) and Shuman v. Mashburn, 137 Ga. App. 231 (223 SE2d 268) (1976). Both cases involved plaintiffs who dove into shallow swimming pools and suffered severe injuries when they struck the bottoms of the pools. In both cases, we determined that the defendant-owners of the pools were not liable for the resulting injuries because the plaintiffs failed to exercise ordinary care for their own safety.

In Lee, supra, we stated: “The issue raised by defendants’ motions for summary judgment is whether liability for defendants’ negligence, if any, was cut off because the proximate cause of plaintiff’s tragic injury was, as a matter of law, plaintiff’s own negligent failure to exercise ordinary care for his own safety.” Id. at 421. Lee was not familiar with the pool and he testified that the depth of the water was not visible because of poor lighting and that he was not warned of the depth of the pool. Nevertheless, Lee dove into the pool without ascertaining its depth. We found that neither the “failure to light the pool or any other negligent act or omission on the part of defendants contributed to plaintiff’s misjudgment or, more accurately, failure to judge the depth of the water before diving.” Id. at 422. In concluding, as a matter of law, that any negligence of the defendants was not a proximate cause of the plaintiff’s injury, we held that “[t]o rule that a jury issue remains would be to assume that the maintenance of any swimming pool necessarily involves an invitation to dive in blind reliance on the safety of such an act without any duty of the actor to use his or her sight, experience or judgment in ordinary care for his own safety.” Id. at 422-423.

In Shuman, supra, the pool at issue was an above-ground pool, as was the pool in the present case. We noted that the plaintiff could not see the water level in the pool by observing it from the side but he could see the height the pool was built from the ground. The plaintiff, who dove into the pool from a roof ledge about four or five feet above the sides of the pool, claimed the proprietor failed to warn him of the shallow depth of the pool. In holding that the proprietor-defendant was entitled to summary judgment, we found that the plaintiff “was under a duty to use his sight to discover any defects or danger” and that in the exercise of ordinary care he knew or should have known of the danger of diving into the pool. Id. at 233.

The Shuman case is similar to the present case in another respect in that the plaintiff there and the plaintiff in the present case were both voluntarily intoxicated when they dove into the pools. We held in Shuman that “ ‘[i]n viewing the conduct of an intoxicated person, for the purpose of determining his negligence or contributory negligence, the state of mind produced by the intoxication may be disregarded; for he will be judged as if the conduct occurred while he was in possession of his normal mental capacity.’. . . Accordingly, plaintiff cannot avoid his duty to exercise ordinary care for his own safety with the excuse that defendant supplied him with alcoholic libations which he voluntarily imbibed.” Id. at 233-234.

Decided July 29, 1994

Reconsideration denied September 2, 1994 —

L. Chandler Vreeland, Jason R. Hasty, Gregg Loomis, for appellant.

In the present case Rowland testified that she was not familiar with the pool prior to the incident at issue and was not aware that it was only four feet deep. Nevertheless, as we similarly observed with respect to the plaintiff in Shuman, supra, Rowland saw the pool when she arrived at the premises, knew it was an above-ground pool, and could observe its dimensions to the extent that she could clearly see a lattice-type structure hanging down from the pool and a deck around the pool. She testified that the incident occurred at night, that the lighting was poor, and that she could not determine the depth of the water. She admitted that she had consumed two large mixed drinks, two beers, and a “line” of cocaine provided by Rogers. Although Rowland testified that Rogers badgered, coaxed and physically dragged her to the pool, at that point, the record is clear that she agreed to go into the pool, disrobed, got onto the diving board, and voluntarily dove into the swimming pool hitting the bottom and sustaining the injuries at issue. She was unable to say how high the diving board was from the surface of the pool because “there wasn’t very much light, so I wasn’t exactly seeing what was there.” Without ascertaining the depth of the water, she dove from the board into the pool, admitting that she “did not know the depth of the pool prior to diving into the pool.” Rowland testified that she assumed the water was deep enough because she saw Rogers dive off the board before her and she saw two other people in the pool who appeared to her to be in deep water.

Under these circumstances, even if Colquitt was negligent in allowing a diving board to be placed on the pool, or in failing to light the pool area, or in failing to otherwise warn as to the danger of using the diving board, this negligence was not, as a matter of law, a proximate cause of the injuries suffered by Rowland. The sole proximate cause of the injuries was Rowland’s failure to exercise ordinary care for her own safety by determining the depth of the water before she dove into the pool. Lee, supra; Shuman, supra.

The trial court properly granted summary judgment in favor of Colquitt.

I am authorized to state that Presiding Judge Birdsong and Judge Johnson join in this dissent.

Barksdale & Mobley, Steven J. Misner, Sharon Ware & Associates, Julie A. Taylor, Donald W. Osborne, S. Lee Storesund, for ap-pellees.

       Although, as the majority notes, a landlord has duties created by statute to keep the premises safe, this does not mean that Colquitt, assuming he was Rogers’ landlord, was absolutely liable for any dangerous condition existing on the premises, even if the condition was created with his knowledge and consent. Hall v. Thompson, 193 Ga. App. 574, 575 (388 SE2d 381) (1989); Roth v. Wu, 199 Ga. App. 665, 666 (405 SE2d 741) (1991); compare Thompson v. Crownover, 259 Ga. 126 (381 SE2d 283) (1989). The present case deals with an allegedly unsafe condition in a pool on the premises and involves questions as to whether Rowland, by the exercise of ordinary care, could have avoided the danger. Under these facts, the applicable rules “impose liability only where the landlord has actual or constructive superior knowledge, and the plaintiff has a duty to exercise ordinary care for her own safety.” Hall, supra; Steinberger v. Barwich Pharmacy, 213 Ga. App. 122, 125 (444 SE2d 341) (1994); see Biggs v. Long, 212 Ga. App. 195, 202-203 (441 SE2d 677) (1994); compare Bastien v. Metropolitan Park Lake Assoc., L.P., 209 Ga. App. 881, 882 (434 SE2d 736) (1993).


text:
    A94A1450.
    A94A1451.
    A94A1508.
    HYRE et al. v. DENISE. PAXSON et al. v. DENISE. DENISE v. PAXSON et al.
    (449 SE2d 120)
   Birdsong, Presiding Judge.

Geraldine Paxson purchased a condominium in 1976; she financed the property with a first mortgage pursuant to a deed to secure debt. In 1983, Paxson sold the property to Kimberly Denise; Denise was allowed to assume Paxson’s first mortgage and Paxson took back a second mortgage on the property. The second mortgage was secured by a promissory note and a security deed (second security deed or second deed to secure debt). The second security deed was duly filed in the county deed book. At closing, Paxson executed a warranty deed in favor of Denise. The second security deed, as recorded, contained a due on sale clause prohibiting sale of the property by Denise to a third party without Paxson’s written consent. Subsequently Denise, inter alia, sold the property to a third party, and in the process apparently requested that the purchaser not record the deed at that time. On November 2,1990, attorney Hyre, representing Paxson, sent a letter to Denise advising her of the acceleration of the second mortgage due to non-payment and gave Denise notice of impending foreclosure. At that time, Denise failed to make the payments allegedly due on the second mortgage for October and November 1990. Thereafter, Denise attempted to tender the equivalent of one month’s payment, which tender was rejected. On November 27, 1990, Hyre again wrote to Denise to notify her of her default on the second mortgage as a result of non-payment, the transfer of the property to the third-party purchasers, and the recordation of federal tax liens. (The Georgia Supreme Court subsequently determined that federal income tax liens were not liens giving rise to a default under the second deed to secure debt. Denise v. Paxson, 261 Ga. 846 (413 SE2d 433).) Paxson commenced a foreclosure action against Denise, claiming Denise had defaulted in various ways and had breached the due on sale clause of the second security deed. In December 1990, Denise filed a Chapter 13 bankruptcy proceeding; this action was voluntarily dismissed in February 1991. In January 1991 and April 1991, Hyre notified Denise of various alleged defaults and of the impending foreclosure of the property. Thereafter, Hyre on behalf of Paxson apparently rejected Denise’s subsequent tender of only past due payments, as Denise had not tendered the full balance deemed due and owing. In the spring of 1991, Denise filed an action against Paxson and her counsel, Hyre, seeking to enjoin the foreclosure of the condominium. In the summer of 1991, Denise filed a second bankruptcy action thereby staying her suit for injunctive relief; this Chapter 13 proceeding subsequently was converted to a Chapter 7 proceeding. Foreclosure occurred in November 1991 after entry of an order of the Bankruptcy Court lifting automatic stay. Denise did not appeal the order of the Bankruptcy Court, which in effect allowed a foreclosure and, in February 1992, accepted a complete and total discharge in bankruptcy. On September 15, 1992, Denise amended her original complaint in an attempt to revive her earlier suit seeking injunctive relief. On May 12, 1993, Paxson et al. filed a motion to dismiss or in the alternative motion for summary judgment; summary judgment was granted in June 1993. On July 15, 1993, Denise filed notice appealing the grant of summary judgment. On July 30, 1993, Paxson et al. filed a motion for attorney fees and costs under OCGA § 9-15-14. This motion was denied in October 1993; Paxson et al. filed a notice of direct appeal of the denial of this motion on November 2, 1993. Apparently because of a belated payment of fees, Denise’s notice of appeal of Case No. A94A1508 was not forwarded to this court until after the forwarding and docketing of the direct appeal of Case Nos. A94A1450 and A94A1451. Held:

Case Nos. A94A1450, A94A1451 & A94A1508

1. A brief or an attachment thereto cannot be used as vehicle for adding evidence to the record. Cotton States Mut. Ins. Co. v. Bogan, 194 Ga. App. 824, 826 (392 SE2d 33). “Appellate courts will review only evidence presented to the trial court before its ruling on [a summary judgment] motion” (Nowell v. Fain, 174 Ga. App. 592, 593 (330 SE2d 741)); each party has a duty to present his case in full at the summary judgment hearing. Coker v. Cutler, 208 Ga. App. 651, 652 (431 SE2d 443).

2. A grant of summary judgment must be affirmed if it is right for the wrong reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746).

Case No. A94A1508

3. Pretermitting the issues of collateral estoppel, equitable estop-pel or res judicata, regarding the foreclosure, is the question of waiver. Denise, through the conduct of her bankruptcy counsel, in effect consented to the lifting of the automatic stay in the bankruptcy proceeding so that foreclosure on the property could proceed. Denise and her counsel did not attend the hearing to lift the stay and otherwise offered no opposition thereto. Further, Denise’s counsel sent a letter to opposing counsel advising that “we will have no opposition to your Motion For Relief From Stay. ... It is our understanding that a foreclosure on the real property in question will not occur prior to . . . November. We believe, however, that such a foreclosure will not be necessary due to the fact that Ms. Denise has a buyer for the property.” Denise, by her voluntary conduct of raising no legal objections before the bankruptcy court as to the validity of subsequent foreclosure in opposition to the lifting of the automatic stay and consenting or acquiescing in the lifting of the stay, has waived her right to object to the subsequent foreclosure on grounds that it was not effected in accordance with Georgia law and the applicable provisions of the second deed to secure debt. A waiver may be established even though the acts, conduct or declarations are insufficient to establish an estop-pel. Ordinarily, a waiver operates to preclude a subsequent assertion of the right waived or any claim based thereon. Mauldin v. Weinstock, 201 Ga. App. 514, 520 (4) (411 SE2d 370). A fine and often imperceptible line exists between an equitable estoppel and a waiver implied from conduct; and, a showing of prejudice to the other party appears to be the central requirement of waiver implied from conduct. Id. In this case, it is clear that the conduct of Denise, through her bankruptcy counsel, lulled appellee Paxson and her attorney into proceeding in state court with the foreclosure action and employing a trial strategy formulated on reliance that Denise was consenting thereto. “While normally the question of waiver is a matter for the jury, where, as here, the facts and circumstances essential to the waiver issue are clearly established waiver becomes a question of law.” Id. Additionally, Denise could not suffer what she deems to be an injustice (invalid foreclosure procedure) during a judicial (bankruptcy) proceeding, hoping for an acceptable result, and then after such proceeding was concluded, first state her objections to the procedure followed. See Bruce v. State, 259 Ga. 798 (2b) (387 SE2d 886).

4. The trial court did not err in granting summary judgment as to Denise’s claim of intentional infliction of emotional distress. The conduct at issue does not meet either the requisite standards of outrageous or egregious conduct or of severity within the meaning of Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703 (409 SE2d 835); Moses v. Prudential Ins. Co., 187 Ga. App. 222, 225-226 (369 SE2d 541).

5. Pretermitting whether the statements made, which give rise to Denise’s claims of slander, libel, and defamation, were otherwise actionable (see, e.g., Haggard v. Shaw, 100 Ga. App. 813 (112 SE2d 286); Davis v. Gen. Finance &c. Corp., 80 Ga. App. 708 (57 SE2d 225)), is whether the publication of the foreclosure ad was privileged and therefore supported the grant of summary judgment as to these claims. OCGA § 51-5-7 (3) pertinently provides that communications are deemed privileged when made with a good faith intent to protect the speaker’s interest in a matter in which he is concerned. While generally the issue whether privilege exists is for the jury, summary judgment is proper where defendant establishes as a matter of law that he made privileged statements. Southern Business Machines v. Norwest Financial Leasing, 194 Ga. App. 253, 260 (4) (390 SE2d 402). Examination of the record in toto reveals that, as a matter of law, the publication of the various foreclosure ads was privileged. Id.

6. As appellees met their burden under Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) as to Denise’s claim for accounting, Denise could not rest on her pleadings, but must point to specific evidence giving rise to a triable issue as to this claim; that evidence must be timely presented before the trial court (see Division 1 above). Denise failed to meet her burden; the trial court did not err in granting summary judgment to appellees/defendants as to the claim for an accounting. Id. Also, Denise admitted in her deposition that she did not know whether a surplus existed after the property sale.

7. The trial court did not err in granting summary judgment in favor of appellees as to any claim of tortious interference of contract. See Division 3 above. Moreover, to prevail on such a claim it must be established that the defendant was a stranger to the contract. Jefferson-Pilot Communications Co. v. Phoenix City Broadcasting, Ltd., 205 Ga. App. 57 (1) (421 SE2d 295). Paxson was not a stranger to the contract at issue. Further, we hold as a matter of first impression that an attorney who on behalf of a client asserts or prosecutes a claim arising from contractual rights and duties is not a stranger to such contract within the limited meaning of Jefferson-Pilot, supra, so that a claim of tortious interference will not lie against him or his partners. Any other holding ultimately could lead to a chilling of citizen’s rights under Art. I, Sec. I, Par. XII, Ga. Const. 1983.

8. Denise alleges a wrongful dispossession but cites no legal authority in support of her contention; her sole argument is that if the foreclosure was wrongful any acts by appellees in removing her from the property were wrongful. However, Denise has waived her right to contest the foreclosure. See Division 3 above. Moreover, Denise concedes that subsequent to the sale of the property, Paxson filed a dis-possessory action in DeKalb County against her; none of the records or transcripts before us reveals that any appeal was taken from the dispossessory judgment. See OCGA § 9-12-40.

9. The attorney for Paxson owed no contractual or statutory duty to the opposing party, Denise, arising from any form of attorney-client relationship (see Tarver v. Wills, 174 Ga. App. 550 (1) (330 SE2d 896)), and the record is void of any specific evidence of fraud, malice of or intentional misconduct by Paxson’s attorney. “In response to a motion for summary judgment, the non-moving party may not rest on generalized allegations, but must come forward with specific facts to show that there is a genuine issue for trial.” Precise v. City of Rossville, 261 Ga. 210, 212 (3) (403 SE2d 47). See also Divisions 1 through 8 above.

Additionally judicial estoppel existed as to any claims against ap-pellees, Paxson and attorneys, arising from conduct occurring prior to the filing by Denise of the second bankruptcy petition and which were not listed as potential claims in her bankruptcy schedules. Compare Southmark Corp. v. Trotter, Smith &c., 212 Ga. App. 454 (442 SE2d 265).

The trial court did not err in granting summary judgment against Denise on her claims that appellee attorneys wrongfully dispossessed Denise and engaged in tortious acts committed in furtherance of their partnership business.

We conclude that all of Denise’s assertions in support of her nine enumerations of error are without merit.

Case Nos. A94A1450 & A94A1451

10. Appellant Paxson and Hyre et al. contend, inter alia, the trial court erred as a matter of law in not granting their motions for attorney fees and expenses of litigation under OCGA § 9-15-14 (a), and by breaching its discretion in denying their motions for attorney fees under OCGA § 9-15-14 (b).

(a) A correct ruling by the trial court will not be reversed regardless of the reason given therefore. See Nat. Consultants v. Burt, 186 Ga. App. 27, 33 (2) (366 SE2d 344).

(b) Inherent in a ruling of the trial court denying attorney fees under OCGA § 9-15-14 (a) is a determination that there does not exist such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position. The standard for reviewing an OCGA § 9-15-14 (a) ruling is that of any evidence. C & S Trust Co. v. Trust Co. Bank, 262 Ga. 345 (417 SE2d 148). A prevailing party is not perforce entitled to an award of attorney fees under this statutory subsection. See Deljou v. Sharp Boylston Mgmt. Co., 194 Ga. App. 505 (391 SE2d 27). Some evidence exists to support the trial court’s denial of attorney fees under OCGA § 9-15-14 (a). Cf. Ellis v. Johnson, 263 Ga. 514, 516 (2) (435 SE2d 923).

(c) The standard for reviewing a denial of attorney fees under OCGA § 9-15-14 (b) is that of breach of discretion. See Bankhead v. Moss, 210 Ga. App. 508, 509 (1) (436 SE2d 723). In exercising judicial discretion whether to award attorney fees under OCGA § 9-15-14 (b), the trial court could consider as one factor whether the opposing party or opposing counsel also contributed to the unnecessary expansion of the proceeding by any relevant form of improper conduct. Notwithstanding, based on the record before us, we conclude appellants Paxson et al. failed to establish an abuse of discretion by the trial court in denying an award of attorney fees under OCGA § 9-15-14 (b).

Decided August 15, 1994

Reconsideration denied September 2, 1994 —

White, Smith, Howard & Ajax, John A. Howard, Brooks W. Binder III, for Hyre.

Macey, Wilensky, Cohen, Whittner & Kessler, Susan L. Howick, for Paxson.

Gerber & Gerber, Sanford J. Gerber, for Denise.

Judgments affirmed.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A94A1701.
    JOHNSON v. ROGERS et al.
    (448 SE2d 710)
   Birdsong, Presiding Judge.

Appellant/plaintiff William R. Johnson III appeals the order of the superior court granting summary judgment in favor of appellees/ defendants Robert Eugene Rogers, Sr. et al.

Appellant was employed by the Georgia Department of Labor (DOL) and at all times pertinent was employed in the capacity of Employment Counselor, Sr. In December 1989, he was terminated from employment for reason of job abandonment with DOL following his election not to return to work after being ordered to transfer from Hinesville to Savannah. The transfer of appellant was to be accomplished without pay reduction but in a non-supervisory capacity of either an Employment Counselor, Sr. or Employment Counselor. Appellant elected not to accept his supervisor’s subsequent offer to rescind the termination action if appellant would return to work in compliance with the transfer order. This election appears to have been motivated by appellant’s contention that the transfer action was a demotion, which had been accomplished in violation of applicable Rules of the State Personnel Board (SPB Rules).

Appellant administratively was upset with his termination in accordance with the procedure promulgated under the Rules and Regulations of the State Personnel Board (SPB); the SPB denied his grievance adopting the initial decision of the hearing officer. The hearing officer found, inter alia, that the separation was appropriate under all circumstances asserted, the preponderance of evidence failed to show a violation of any SPB Rule in separating appellant under the provision of Rule 12.202, and DOL cured any error arising from appellant’s belief that he was on annual leave or the fact he had reported to the Hinesville office and worked on certain personnel matters on December 6, 1989, by offering appellant employment reinstatement on January 31, 1990. Appellant appealed the SPB decision to the superior court; the court remanded the case to the SPB to allow appellant to present evidence of having worked during the alleged period of abandonment. The hearing officer at the second hearing received evidence regarding whether appellant had been placed on leave during the alleged five-day period of absence. The SPB reviewed the new evidence and held that the DOL had not violated the SPB Rules and Regulations in terminating appellant’s employment under the provisions pertaining to abandonment of position. The SPB further found that even if appellant had performed some work while on the alleged leave — thereby tolling the five-day abandonment period — by declining the reinstatement offer, he abandoned his job. The SPB’s decision was reviewed and affirmed by the superior court and appellant elected not to appeal that judicial determination.

Appellant thereafter brought suit alleging tortious interference with his employment contract and also asserting a cause of action under 42 USC § 1983 averring that the acts of appellees were taken under color of law and in violation of his constitutional rights. As to appellant’s current civil suit, the superior court granted summary judgment holding that res judicata, collateral estoppel, and failure to exhaust administrative remedies barred the action. Held:

1. The applicable standard for summary judgment in this case is announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). On appeal a grant of summary judgment must be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746).

2. The trial court held, inter alia, that, under the SPB Rules, appellant’s “transfer did not constitute a demotion because his class and pay status were unaffected.” We agree. SPB Rule 10.301. The record establishes as a matter of law, by positive and uncontradicted evidence, that the transfer of appellant was to be accomplished so as to retain him in his existing pay status; no genuine issue of material fact exists as to this issue. Assuming arguendo a modicum of circumstantial evidence had existed that a reduction in pay would directly result from the transfer, it is a long-standing rule that a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. Sandifer v. Long Investors, 211 Ga. App. 757, 760 (2) (440 SE2d 479); Brewer v. Southeastern Fidelity Ins. Co., 147 Ga. App. 562, 564 (249 SE2d 668) and cases cited therein. Likewise we agree, as a matter of law, with the holding of the trial court that appellant’s reassignment to Savannah did not constitute a relocation within the meaning of applicable SPB Rules; the SPB Rules pertaining to relocation are not applicable where, as here, an employee is required to report to an office less than 50 miles from his original assignment. Compare SPB Rule, Ch. 478-1, § G. 200 with Office of Planning & Budget Policy Memorandum No. 2 (Revision 6), Par. 2d.

3. As to the tortious interference claims, we find that each claim against a defendant averred to have been acting in his or her official capacity is not a claim against a stranger to the contract; defendants, to the extent of acting within their official capacities, were not inter-meddlers acting both improperly and without privilege. See Renden v. Liberty Real Estate &c., 213 Ga. App. 333 (444 SE2d 814) and cases cited therein.

4. Pretermitting whether the trial court did not err in holding that appellant’s substantive due process claims asserting constitutional deprivation (42 USC § 1983), by means of constructive demotion or retaliatory transfer, are barred by his failure to exhaust his administrative remedies (compare Allen v. Bergman, 198 Ga. App. 57, 58 (1) (400 SE2d 347) with Bailey v. Wilkes, 162 Ga. App. 410, 412 (2) (291 SE2d 418)) is whether the trial court’s ruling was right for any reason. Malaga Mgmt. Co., supra.

Appellees have presented certain direct evidence, which has not been contradicted or impeached, refuting appellant’s claims of constructive demotion and retaliatory transfer. In view of appellees’ direct evidence in support of their motion for summary judgment, as to appellant’s substantive due process (42 USC § 1983) claims, the record demonstrates no genuine issue of material fact. As above stated, findings of fact which may be inferred but are not demanded by circumstantial evidence have no probative value against positive and un-contradicted evidence that no such fact exists. Rowell v. McCue, 188 Ga. App. 528, 531 (373 SE2d 243); Dozier v. Wallace, 169 Ga. App. 126, 130 (311 SE2d 839) and cases therein cited; Ussery v. Koch, 115 Ga. App. 463 (1) (a) (154 SE2d 879).

5. Pretermitting whether the doctrines of res judicata or collateral estoppel would bar all claims of tortious interference averred against defendants in both their official and individual capacities (see generally Ervin v. Swift Adhesives, 208 Ga. App. 265 (430 SE2d 133)) is whether appellant, by his conduct, waived his right to prosecute these claims. By his affirmative conduct appellant did waive such rights. For example, in several letters written by appellant to his supervisors, appellant appeared to be announcing his intent not to report to Savannah as directed, and expressly stated on at least one occasion that “as I will not be able to report to work on December the first in Savannah, I assume that I will be separated [from] the Georgia Department of Labor.” Additionally, after his termination on grounds of abandonment of position had been accomplished, the Assistant Field Commissioner, Department of Labor, sent appellant a letter offering to “rescind the previous action separating you for job abandonment,” if appellant would report within five workdays to his assignment in the Savannah office. It is uncontroverted that appellant, in fact, declined this offer, and that his supervisors in DOL were led by appellant’s pattern of conduct to believe appellant had in fact permanently abandoned his employment with DOL. “ ‘(A) waiver may be established even though the acts, conduct, or declarations are insufficient to establish an estoppel.’ [Cit.] ‘Ordinarily, a waiver operates to preclude a subsequent assertion of the right waived or any claim based thereon. . . . And once a right is waived the waiver cannot be withdrawn without the consent of the other party, even if subsequent events prove the right waived to have been more valuable than was anticipated.’ [Cit.] In certain situations, ‘the question whether waiver will be found in any particular case depends not upon the secret intention of the party against whom it is asserted, but upon the effect which his conduct has had upon the other party, (and) (i)f intention to waive is to be implied from conduct, the conduct [as here] should speak the intent clearly.’ [Cit.] A fine and often imperceptible line exists between an equitable estoppel and a waiver implied from conduct.” Mauldin v. Weinstock, 201 Ga. App. 514, 520 (4) (411 SE2d 370); accord Paxson v. Denise, 214 Ga. App. 552, 554 (3) (449 SE2d 120); see Sandifer, supra at 760 (2); see also Dept. of Transp. v. Calfee Co. of Dalton, 202 Ga. App. 299, 306 (2) (414 SE2d 268). “While normally the question of waiver is a matter for the jury, where, as here, the facts and circumstances essential to the waiver issue are clearly established waiver becomes a question of law.” Mauldin, supra; Paxson, supra.

We further find appellant’s various contentions in support of his enumeration of error to be without merit.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge Harold, R. Banke concur.

Decided August 17, 1994.

McKee & Barge, Christopher J. Ramig, for appellant.

Michael J. Bowers, Attorney General, Susan L. Rutherford, Jeffrey L. Milsteen, Senior Assistant Attorneys General, for appellees.


text:
    A94A1489.
    AGBONGHAE v. CIRCUIT CITY STORES, INC. et al.
    (448 SE2d 484)
   Blackburn, Judge.

John O. Agbonghae brought the underlying action against Circuit City Stores, Inc. and Kenneth B. Carr to recover damages resulting from their alleged malicious prosecution for burglary and theft by taking. After the presentation of Agbonghae’s case at trial, the trial court granted defendants’ motion for directed verdict. Agbonghae appeals asserting several enumerations of error.

1. In his first enumeration of error, Agbonghae contends the trial court erred in granting defendants’ motion for directed verdict. “In Georgia, the standard used to review the grant or denial of a directed verdict is the any evidence test. Where 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, such verdict shall be directed. In reviewing grant of a directed verdict, we must decide whether all the evidence demanded it, or whether there was some evidence supporting the verdict of the jury.” (Citations and punctuation omitted.) Hixson-Hopkins Autoplex v. Custom Coaches, 208 Ga. App. 820 (1) (432 SE2d 224) (1993).

The undisputed evidence shows that Agbonghae was an inventory control supervisor for Circuit City at their southeast distribution center for small electronic items. On January 17, 1987, a Saturday, Agbonghae arrived to work around 5:30 a.m. Agbonghae was working on Saturday in order to take Martin Luther King Day off, and because Circuit City’s January inventory required extra work.

Agbonghae testified that he opened up the guard shack and deactivated the alarm therein at 5:34 a.m. and that he deactivated the interior alarm at 5:36 a.m. After Agbonghae was in his office for a few minutes, he heard a noise and proceeded to investigate. Agbonghae testified that he accidentally set off an interior alarm while attempting to investigate the noise. The report from the alarm company indicated that Agbonghae’s code was used to turn off an interior alarm at 6:05 a.m. Agbonghae testified that he then heard screeching car tires. He ran outside to investigate and noticed that the white car he had seen parked in the lot upon his arrival, was missing, but that a person was leaning into the opened trunk of a different car in the parking lot. As Agbonghae got closer, he recognized that it was Carr bending over the opened trunk of his car. Agbonghae noticed merchandise left on the sidewalk and in the guard shack.

Carr testified that as he pulled into the parking lot, the white car sped away, and some merchandise fell out of its trunk, Agbonghae testified that Carr insisted that they move the merchandise into the guard shack and that they not call the police. Agbonghae further testified that he called the police after Carr refused to do so. However, the police dispatch record indicated that Carr called the police at 6:41 a.m. A City of Atlanta police officer arrived and investigated the situation. He interviewed Agbonghae, Carr, Lloyd, and Waters prior to arresting Agbonghae for theft by taking.

The case was called for a hearing in Atlanta City Court; however, because the police officer was not present, the case was dismissed. Carr was present at the hearing and the transcript reflects that he told the court that Circuit City did not want to prosecute “at the moment” and that Agbonghae was the one that called the police. Carr denies making either of those statements.

Thereafter, Trent Barnes, Circuit City’s division security manager, wrote to Charles Hadaway, an assistant district attorney, that the case against Agbonghae was “very important to Circuit City and we would like to make sure [it was] heard.” Barnes testified that it was Circuit City’s policy that once the police had determined there was probable cause to arrest someone, the company wanted the case presented to a grand jury. Hadaway testified that he would never have known of the case if Barnes had not brought it to his attention.

As a result of Barnes’ letter, Hadaway began an investigation and requested alarm records and other information from Barnes. Thereafter, Hadaway presented evidence to a grand jury. A true bill was returned March 27, 1987, charging Agbonghae with burglary and theft by taking. The criminal case against Agbonghae was eventually dismissed, prior to trial.

“The essential elements of a claim for malicious prosecution are ‘(1) prosecution for a criminal offense; (2) under a valid warrant, accusation or summons; (3) that the prosecution terminated in favor of the plaintiff; (4) that it was instituted maliciously; (5) that it was instituted without probable cause; and (6) that it damaged the plaintiff. (Cits.)’ [Cit.]” Wilson v. Bonner, 166 Ga. App. 9, 10 (303 SE2d 134) (1983).

In the present case, “the grand jury’s return of the indictment against the plaintiff is prima facie but not conclusive evidence that probable cause existed for the prosecution. Thus, the burden shifted to [plaintiff] to come forward with specific facts tending to show that probable cause did not exist for his arrest and that the charges against him were instead motivated by malice.” (Citation and punctuation omitted.) Sears Co. v. Weddington, 197 Ga. App. 52, 53 (397 SE2d 471) (1990). In this task, Agbonghae failed.

The evidence presented by Agbonghae supported his theory that other employees of Circuit City might have committed the theft in question. However, such evidence does not negate the evidence tending to implicate Agbonghae of the theft and establishing probable cause for his arrest by the Atlanta police officer. “What facts and circumstances amount to probable cause is purely a question of law, and even assuming a jury question was presented on the issue of probable cause, [Agbonghae was] also required to produce evidence of malice.” Kemp v. Rouse-Atlanta, Inc., 207 Ga. App. 876, 880 (429 SE2d 264) (1993).

Agbonghae also failed to sufficiently establish the malice element. Agbonghae testified that he thought Carr did not like him because Carr passed over Agbonghae when hiring a fork-lift operator, and because Agbonghae did not play golf and drink beer with the other supervisors. Agbonghae’s testimony was speculative, at best.

Agbonghae argued that Carr’s testimony which conflicted with his, proved that Carr was lying and that Carr’s motive was malicious. However, “ ‘mere conflicts in the (evidence) do not render the direction of a judgment erroneous when it appears that the conflicts are not material. (Cits.)’ [Cit.]” First Union Nat. Bank v. Gurley, 208 Ga. App. 647, 650-651 (431 SE2d 379) (1993). In the present case, the conflicts were not material to the elements of a malicious prosecution case. Carr’s conflicting testimony as to who called the police is a collateral issue, especially considering the uncontroverted police records which identify Carr as the person who reported the incident. However, assuming Agbonghae called the police, this act, in and of itself would not be sufficient to eliminate the officer’s probable cause to arrest or the grand jury’s probable cause to indict Agbonghae on the offense charged.

The trial court did not err in granting defendants’ motion for directed verdict.

2. We have reviewed Agbonghae’s additional enumerations of error and found them to be without merit.

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.

Decided August 17, 1994

Reconsideration denied September 2, 1994 —

Llewellyn & Swanson, David J. Llewellyn, for appellant.

Arrington & Hollowell, W. Ray Persons, McLaughlin, MacDou-gald & Hendon, Daniel MacDougald III, for appellees.


author: Beasley, Presiding Judge.

text:
    A93A0549.
    HOBBS v. ARTHUR.
    (449 SE2d 173)
    Decided September 2, 1994.

      Callaway, Neville & Brinson, William J. Neville, Jr., for appellant.

      Goodman, McGuffey, Aust & Lindsey, Constance C. Russell, Leigh M. Wilco, for appellee.
   Beasley, Presiding Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, Hobbs v. Arthur, 264 Ga. 359 (444 SE2d 322) (1994), the decision in Hobbs v. Arthur, 209 Ga. App. 855 (434 SE2d 748) (1993), is hereby vacated, and the judgment of the Supreme Court is made the judgment of this court. Direction is given to the trial court to proceed consistent with the opinion of the Supreme Court.

Judgment reversed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Andrews, Blackburn, Smith and Ruffin, JJ., concur. Johnson, J., not participating.


text:
    A94A1175.
    LLOYD v. THE STATE.
    (448 SE2d 729)
   Beasley, Presiding Judge.

Appellant Lloyd was convicted of armed robbery (OCGA § 16-8-41), giving a false name to a law enforcement officer (OCGA § 16-10-25), and use of a license plate to conceal the identity of a vehicle (OCGA § 40-2-7). He appeals his convictions and the trial court’s denial of his amended motion for new trial.

The victim Stanley testified that at approximately 11:15 p.m., he was accosted in the parking lot of his apartment complex by Lloyd and co-defendant Reeves, whom he had observed milling around in a suspicious manner. After Lloyd displayed a gun, the men instructed Stanley to turn around. They asked for his wallet and he gave it to them, but it contained only a few dollars and some credit cards. They then asked about his car, but when his fiancee exited his apartment and closed the door, they were startled and fled. Stanley returned to his apartment and called the police.

A radio bulletin was relayed to Officer Jones, who was at a Quik Trip near the victim’s apartment complex. He proceeded to the only exit from the apartment complex and intercepted the two men as they were driving away. Jones activated his blue lights, but Lloyd, who was driving the car, sped away. He and Reeves began to remove outer clothing and throw it on the floorboard and out of the car. Reeves also threw Lloyd’s gun and Stanley’s wallet out. After making several turns in the car, they drove into the Quik Trip parking lot, where their car was blocked by another police car. Lloyd gave Officer Jones a false name, and the tag on the car he was driving had been stolen by him earlier that day. Stanley was summoned to the scene and positively identified both suspects.

Reeves and Lloyd testified that they were at Stanley’s apartment complex retrieving a television set from a dumpster when he drove by and made racial remarks to them. They maintained that they later saw him while they were driving through the parking lot and decided to confront him. Reeves testified that he got out of the car first; that to scare Stanley, he showed him a gun owned by Lloyd; that Lloyd exited the car and began arguing with Stanley; and that he, Reeves, then reentered the car. Lloyd testified that he keeps the gun used by Reeves in his glove compartment because he is entrusted with money by his employer, who has been robbed. According to Lloyd, he continued arguing with Stanley after Reeves returned to the car, and he ended up with Stanley’s wallet because it was in a tote bag he grabbed, thinking Stanley might have been trying to retrieve a gun from it.

Stanley testified in rebuttal that he had not made any racial remarks to Lloyd and Reeves and that he had never seen them before they robbed him.

1. The trial court is faulted for instructing the jury on reasonable doubt by adding the language “moral and reasonable certainty,” on the ground it confused or reduced the burden of proof. The trial court’s charge on burden of proof and reasonable doubt was that recommended by the Council of Superior Court Judges of Georgia in the Suggested Pattern Jury Instructions (July 1991). See Franklin v. State, 245 Ga. 141, 153, n. 10 (263 SE2d 666) (1980). See also Scoggins v. State, 156 Ga. App. 652, 654 (5) (275 SE2d 676) (1980); Starr v. State, 201 Ga. App. 73 (1) (410 SE2d 180) (1991).

It is the precise charge reviewed in Vance v. State, 262 Ga. 236, 237 (2) (416 SE2d 516) (1992), and recited in footnote 4. In that case, the Court concluded that in the context of the charge as a whole, and in light of the overwhelming evidence, the use of the statutory language from OCGA § 24-4-3 did not reduce the standard of proof required by OCGA § 16-1-5. The Court cautioned that the “better charge” would exclude this language, supra at 238, n. 5. In Hicks v. State, 262 Ga. 756, 757 (3) (425 SE2d 877) (1993) and Marion v. State, 263 Ga. 358, 359 (2) (434 SE2d 463) (1993), the Court held that it did not lessen the burden where there was a correct charge on reasonable doubt. These were not cases of overwhelming evidence of guilt, so that condition has been removed from the equation.

The Georgia Supreme Court did not make “a plain statement” as to whether it was testing the challenged language against the requirements of the state constitution or the federal constitution, as asserted here, or some other measurement such as OCGA § 24-4-5, or whether all held to the same standard. See Michigan v. Long, 463 U. S. 1032, 1040-1042 (103 SC 3469, 77 LE2d 1201) (1983). Vance did apply the analytical principle, utilized in the federal constitutional case of Francis v. Franklin, 471 U. S. 307, 315 (105 SC 1965, 85 LE2d 344) (1985), that requires consideration of potentially offending words in the context of the charge as a whole. Franklin found the language complained of in that case to be burden-shifting. Here and in Vance, it is claimed that certain language reduced the burden. Of course, the same analytical principle is appropriate, and it was applied in the other two cases as well.

If the Georgia Supreme Court had viewed the language as allowing a burden-reducing standard of proof, then under the federal constitution it would have had to reverse the conviction even, as in the Vance case, in the face of overwhelming evidence of guilt. Sullivan v. Louisiana, 508 U. S_(113 SC 2078, 124 LE2d 182) (1993). Francis had expressly not resolved whether an erroneous charge that shifts a burden of persuasion to the defendant on an essential element of an offense can ever be harmless. Id. at 325.

Even if the state constitutional question is not foreclosed by the three Georgia Supreme Court cases, we do not reach it because it is not briefed by appellant. He merely invokes fourteen paragraphs of the state Bill of Rights, and in particular four paragraphs, and urges us to take a more expansive view than is accorded the federal Bill of Rights by the United States Supreme Court. The absence of any analysis or argument or authority in support of this claim fails to properly present the issue. See Merriman v. State, 201 Ga. App. 817, 818 (412 SE2d 598) (1991); Bonds v. State, 188 Ga. App. 135 (372 SE2d 448) (1988), and cit. We will not decide such an issue without substantive briefing by the party who raises it.

This brings us to the federal constitutional issue, which was alluded to in McDonald v. State, supra. It referred to cases which were pending in the United States Supreme Court and have recently been decided. We turn to them.

In Victor v. Nebraska and Sandoval v. California, 511 U. S_ (114 SC_, 127 LE2d 583) (1994) (cited as Victor v. Nebraska), the Supreme Court, distinguishing Cage v. Louisiana, 498 U. S. 39 (111 SC 328, 112 LE2d 339) (1990), rejected constitutional challenges to jury instructions on reasonable doubt containing “moral certainty” language. However, the Court did disapprove the use of this language, as did our Supreme Court in the three recent cases referred to above.

In Victor and Sandoval, the Court undertook an etymological review of the phrase “moral certainty,” which the Court found is related to the concept of “moral evidence.” 127 LE2d at 593-594. In sum, the court explained that seventeenth and eighteenth century philosophers and historians divided evidence into two species — demonstrative and moral. Demonstrative evidence has for its subject abstract truths which exist only in the world of the ethereal; such truths are immutable and thus not subject to challenge. Moral evidence has for its subject truths which take place among things actually existing; such truths are subject to challenge. Matters of fact in the ordinary affairs of life are proved by moral evidence. The phrase “moral certainty” is the highest degree of certitude based on such evidence. Historically, proof beyond a reasonable doubt has been equated with proof to a moral certainty, as distinguished from an absolute certainty.

Victor and Sandoval identify two problems with modern-day use of the phrase “moral certainty.” The first is that contemporary dictionaries define moral certainty in terms of probability, such as a strong probability. Id. at 595. Thus, moral certainty might be understood by modern jurors to. mean a standard of proof lower than beyond a reasonable doubt. The second is that a juror might be convinced to a moral certainty that the defendant is guilty even though the government has failed to prove his guilt beyond a reasonable doubt. Id. at 596.

Therefore, where a trial court has used the phrase “moral certainty” in defining the concept of reasonable doubt, an appellate court must look to the surrounding portions of the charge to determine whether there is a reasonable likelihood that the jury could have interpreted the instruction, when viewed as a whole, to allow a conviction on proof that does not meet the standard of “beyond a reasonable doubt” or on factors other than the government’s proof. Id. at 591-592; Estelle v. McGuire, 502 U. S_(112 SC 475, 116 LE2d 385, 399) (1991).

In Cage, the trial court equated reasonable doubt with “grave uncertainty” and an “actual substantial doubt,” and it stated that what was required was “not an absolute or mathematical certainty, but a moral certainty.” The Supreme Court held that the words “substantial” and “grave,” as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard. The Court thus concluded that when those statements are considered with the reference to “moral certainty,” rather than evidentiary certainty, a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause. (As we recognized in Ruff v. State, 212 Ga. App. at 246 (2), supra, the United States Supreme Court in Estelle v. McGuire, supra, subsequently held that the correct inquiry is whether there is a “reasonable likelihood” that the jury applied the instruction in a constitutionally impermissible manner, not whether a reasonable juror could have so interpreted it; in Sullivan v. Louisiana, supra, the question whether a charge “essentially identical” to that given in Cage was reasonably likely to have been unconstitutionally applied was not considered since it was not previously argued.)

In Sandoval, the trial court defined reasonable doubt as a doubt not permitting “ ‘an abiding conviction, to a moral certainty, of the truth of the charge.’ ” 127 LE2d at 592. In this respect, the charge in Victor was virtually identical. Id. at 598. An instruction cast in terms of an abiding conviction as to guilt correctly states the government’s burden of proof. Id. at 596. Primarily for this reason, the Court held that there was no reasonable likelihood that the jurors in Sandoval or Victor understood the reference to moral certainty to allow conviction on a standard of proof lower than due process requires. Id. at 597, 600. Secondly, because the jury was instructed in both cases to base their determination of the issues on the evidence, the Court held that there was no reasonable likelihood that the jurors understood the reference to moral certainty to allow conviction on factors other than the government’s proof. Id. at 597, 600.

Lloyd’s jury was instructed that proof to a moral and reasonable certainty constitutes a standard which the state must meet in addition to the standard of beyond a reasonable doubt, as opposed to the standards of beyond all doubt or to a mathematical certainty, which the state is not required to meet. In defining reasonable doubt, the court did not equate it with anything else, but rather stated in essence that it is a doubt based on reason and arising from evidentiary considerations. The court instructed the jury that it was its duty to acquit if the state failed to prove guilt beyond a reasonable doubt. The court repeated the “beyond a reasonable doubt” standard many times throughout its charge and never again mentioned “moral certainty.”

Decided September 2, 1994.

Mary E. Erickson, for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, Debra H. Bernes, Thomas W. Weathers III, Assistant District Attorneys, for appellee.

We conclude that there is not a reasonable likelihood that the jury could have interpreted the court’s references to moral certainty to allow conviction on proof not meeting the standard of beyond a reasonable doubt or on factors other than the government’s proof. Nevertheless, to remove the issue from further arising, the terminology should not be used in jury instructions.

2. We have reviewed the remaining enumerations and find none of them to constitute reversible error. As to the enumeration that counsel was ineffective because he failed to preserve the right to object to jury charges, none of the charges or omissions to charge now complained of would constitute reversible error, so appellant can show no harm from counsel’s failure. The court was not required to instruct the jury that an individual determination of guilt must be made as to each defendant, since the evidence against the defendants was identical. See Jones v. State, 207 Ga. App. 46, 48 (3) (427 SE2d 40) (1993). Deficient representation alone is not enough; prejudicial error resulting must also be shown. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); McCollum v. State, 201 Ga. App. 493, 494 (2) (411 SE2d 328) (1991).

Judgment affirmed.

Andrews and Johnson, JJ., concur.

       The same is true of our recent cases on the subject: Ruff v. State, 212 Ga. App. 245 (1) (441 SE2d 534) (1994); McDonald v. State, 210 Ga. App. 689, 692 (5) (436 SE2d 811) (1993); Daniels v. State, 207 Ga. App. 689, 692 (5) (428 SE2d 820) (1993); Oliver v. State, 207 Ga. App. 681, 682 (2) (428 SE2d 681) (1993).

       The precise language objected to is as follows: “No person shall be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt and to a moral and reasonable certainty. . . . Moral and reasonable certainty is all that can be expected in a legal investigation.”