author: McMurray, Presiding Judge.

text:
    A90A1403.
    CENTRAL OF GEORGIA RAILROAD COMPANY v. LIGHTSEY.
    (400 SE2d 652)
   McMurray, Presiding Judge.

In Central of Ga. R. Co. v. Lightsey, 189 Ga. App. 44 (374 SE2d 787), this Court reversed the judgment entered in favor of plaintiff on his Federal Employers’ Liability Act (“FELA”) claim and remanded this case for proper consideration of a motion to recuse the trial judge. Other issues raised by the defendant in that appearance were not decided by this Court at that time. In reversing in that appearance, this Court ruled that if the motion was denied, a new appeal could be taken following the reentry of the judgment.

The motion to recuse was heard by a judge of another circuit (Atlantic Circuit). Evidence was submitted in support of the motion. The motion was denied; the judgment was reentered; and defendant appealed once again. Held:

1. Defendant assigns error upon the denial of the motion to recuse. We find no error.

The motion to recuse was based on two contentions: (1) that all FELA cases in which the claimants were represented by plaintiff’s attorneys were assigned to this particular trial judge by a circumvention of the local rules and (2) that this trial judge was personally biased in favor of the plaintiff’s attorneys and against defendant.

With regard to the first contention, there was no evidence that the trial judge played any part in the system of assignment of any cases which came to him or had any prior knowledge of the assignments.

With regard to the second contention, defendant’s counsel testified that the judge’s demeanor and attitude in other cases demonstrated bias against defendant. Defendant argued that additional evidence of bias could be derived from the trial judge’s failure to take any action when he was confronted with data concerning the assignment of FELA cases. But six of the jurors who sat on this case testified that they discerned no bias on the part of the trial judge for or against either party.

Our Supreme Court deems the federal rule on motions to recuse “to be the most acceptable.” State v. Fleming, 245 Ga. 700 (1), 702 (267 SE2d 207). We deem it appropriate, therefore, to look to the federal courts to determine the standard of review when it comes to motions to recuse.

The federal appellate courts employ an abuse of discretion standard in reviewing rulings made upon motions to recuse. See, e.g., United States v. Kelly, 888 F2d 732, 745 (11th Cir. 1989); Giles v. Garwood, 853 F2d 876, 878 (11th Cir. 1988). “The abuse of discretion standard has been described as allowing a range of choice for the [lower] court, so long as that choice does not constitute a clear error of judgment. [Cit.]” United States v. Kelly, supra at 745.

Given the evidence adduced upon the recusal motion, we find no error of judgment on the part of the judge who heard the motion. After all, defendant failed to demonstrate personal, extrajudicial bias on the part of the trial judge. See Smith v. State, 250 Ga. 438 (1), 439 (298 SE2d 482); Carter v. State, 246 Ga. 328, 329 (271 SE2d 475). See also United States v. Jeffers, 532 F2d 1101, 1112 (7th Cir. 1976) (prior judicial actions are insufficient to overcome the presumption of impartiality and demonstrate personal bias).

Our conclusion is bolstered by our own review of the record and the trial transcript. We find nothing which would demonstrate that the trial judge was personally (as opposed to judicially) biased against defendant.

2. In several enumerations of error, defendant asserts the trial court’s charge was erroneous. A brief recitation of the facts will aid our consideration of the alleged errors pertaining to the charge.

Plaintiff supervised a small crew of railroad employees. On the day in question, plaintiff and his crew were using a motorcar and pushcar to pick up scrap angle bars on defendant’s tracks in Alabama.

Just before lunchtime, plaintiff and his crew took a ride on the motorcar and pushcar to get gas (for the motorcar), and “some Coca Colas and dinner” at a store. The store was approximately two miles from the work site.

The motorcar led the way, towing the pushcar. The motorcar was about five feet high; the pushcar stood about two-and-a-half feet off the ground. The motorcar was equipped with a beacon light and a headlight. It did not have a warning horn.

The motorcar did not have enough seats for plaintiff’s crew. So plaintiff and another employee sat on the pushcar in spite of a railroad rule forbidding employees to sit on rolling equipment without a seat. That was not unusual. Defendant’s employees rode on the push-cars on occasion.

The crew arrived at the store and purchased gas and drinks. While the men were taking their lunch break plaintiff’s supervisor rode by. He asked what was up. Plaintiff responded that the motorcar needed gas and the men needed cold drinks. The supervisor told plaintiff to go back to work picking up scrap angle bars. The supervisor did not actually see anyone sitting on the pushcar at that time.

The men got back on the motorcar and pushcar and headed for the work site. This time, the pushcar led the way. It was being pushed along by the motorcar.

The crew approached a dirt crossing. It was difficult for plaintiff to see whether there was traffic at the crossing because vegetation had been allowed to grow on the side of the tracks.

Before entering the crossing, plaintiff signaled the operator of the motorcar to stop. According to plaintiff, the motorcar stopped short of the crossing but started sliding through it.

About one-third of the way into the crossing, plaintiff saw a pickup truck coming right at him. He tried to jump out of the way but he could not. He was struck and injured by the pickup truck.

(a) The trial judge instructed the jury that the Occupational Safety & Health Administration (“OSHA”) enacted a regulation which provides: “All vehicles shall be equipped with an adequate audible warning device at the operator’s station and in an operable condition.” 29 CFR § 1926.601 (b) (3). The trial judge went on to charge that, if defendant violated the OSHA regulation, defendant would be deemed negligent as a matter of law and if plaintiff was injured in whole or in part as a result of any such violation plaintiff would be entitled to recover “the full undiminished award of his damages, if any.”

Defendant contends the trial court’s OSHA charge was given erroneously. We agree.

OSHA regulations do not “apply to working conditions of employees with respect to which other Federal agencies, and State agencies acting under section 2021 of Title 42, exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.” 29 USC § 653 (b) (1). Was OSHA’s authority to regulate safety conditions preempted in this FELA case?

The Federal Railroad Administration (“FRA”) is authorized to enact and enforce regulations affecting the working conditions of railroad employees. 45 USC § 421 et seq. In a policy statement examining OSHA’s role with regard to railroad operations, the FRA concluded: “FRA has exercised and continues to exercise its jurisdiction over the safety of railroad operations.” 43 FR 10583, 10586.

“ ‘[R]ailroad operations’ refers to the movement of equipment over the rails. The term ‘safety’ includes health-related aspects of railroad safety to the extent such considerations are integrally related to operational safety hazards or measures taken to abate such hazards. The term ‘safety of railroad operations,’ then, relates to the conditions and procedures necessary to achieve the safe movement of equipment over the rails.” 43 FR 10583, 10585.

To meet its responsibilities over the safety of railroad operations, the FRA enacted safety regulations for track motorcars and pushcars. These regulations outline the safety equipment for such vehicles when they are coupled and moving together. 49 CFR §§ 231.25; 231.26. The regulations are consistent with the FRA’s conclusion that it “is responsible for all vehicles that are utilized on [tracks] during the period of such usage.” 43 FR 10583, 10588.

In view of FRA’s policy statement and its enactment of regulations governing the safe operation of motorcars and pushcars, we conclude that OSHA’s authority to regulate safety conditions in this case was preempted. Velasquez v. Southern Pac. Transp. Co., 734 F2d 216 (5th Cir. 1984); Southern Pac. Transp. Co. v. Usery, 539 F2d 386, 391 (5th Cir. 1976). Compare Pratico v. Portland Terminal Co., 783 F2d 255 (1st Cir. 1985), in which no regulations were enacted by the FRA covering the procedure and equipment used by plaintiff. It follows that the trial court’s charge to the jury was erroneous and the judgment of the trial court must be reversed. Velasquez v. Southern Pac. Transp. Co., 734 F2d 216, 219, supra.

(b) Citing 49 CFR § 213.37 (c) (“Vegetation on railroad property which is on or immediately adjacent to roadbed must be controlled so that it does not. . . (c) Interfere with railroad employees performing normal trackside duties;”) promulgated by the FRA, the trial court charged the jury that it was incumbent upon defendant to control vegetation on its property so plaintiff could perform his duties safely; and that if plaintiff was injured because defendant violated its duty to control vegetation, and that plaintiff was injured in whole or in part as a result of the violation plaintiff would be entitled to recover an undiminished amount of damages if any. Defendant contends the charge was improper because: (1) Plaintiff was not performing track-side duties when he was struck by the pickup truck and (2) plaintiff was not entitled to undiminished damages in any event.

We find the charge to be applicable to the facts in this case and a correct statement of the law. The evidence authorized the jury to conclude that plaintiff was injured because vegetation growing along the side of the tracks interfered with plaintiff’s view of the crossing. Plaintiff was performing “trackside duties” at that time since he was returning to the work site after purchasing gas for the motorcar.

We reject defendant’s contention that plaintiff was not performing trackside duties simply because he was riding on a pushcar. Giving the term “trackside duties” its logical meaning, we think it extends to duties performed on, as well as on the side of, the tracks.

Where a railroad employee is injured because a railroad violated a statute enacted for the safety of railroad employees, no such employee shall be held to have been guilty of contributory negligence. 45 USC § 53. The same holds true if the railroad violates a regulation issued by the Secretary of Transportation. 45 USC § 437. Accordingly, the trial court properly charged that plaintiff’s recovery was not to be diminished if the jury found that plaintiff was injured because the railroad violated 49 CFR § 213.37 (c).

Defendant also contends the charge was improper because no reference to the regulation was included in the pretrial order and defendant did not know that plaintiff was relying upon the regulation until plaintiff submitted his requests to charge. We need not consider this contention because the judgment is being reversed (pursuant to Division 2a, supra,) and, upon a retrial, defendant will not be surprised by plaintiff’s reliance upon the regulation.

(c) The trial court charged the jury that it could return a verdict for plaintiff even though he may have violated a rule of the railroad if a person charged with enforcing the rule was aware of the violation but took no action. It cannot be said the charge was inapt in light of the evidence that plaintiff’s supervisor saw plaintiff and his crew had ridden nearly two miles from the work site on the motorcar and push-car. See Central of Ga. R. Co. v. Mobley, 6 Ga. App. 33 (3, 4) (64 SE 300).

(d) Defendant contends the trial judge should have instructed the jury pursuant to its request on the Alabama rules of the road to facilitate consideration of the truck driver’s concurring negligence. We disagree. The truck driver was not named as a party in this FELA case. Accordingly, his negligence vel non was of no import. See Kansas City Southern R. Co. v. Nectaux, 26 F2d 317, 318, 319 (5th Cir. 1928) (“A railroad is charged with the absolute and continuing duty of using reasonable care to furnish its employees a clear track over which to run. If the breach of this obligation is a concurring cause, the negligence of another will not defeat a recovery.”)

(e) Whether defendant was negligent, or plaintiff was solely negligent, were questions to be decided by the jury. Atlantic Coast Line R. Co. v. Thompson, 213 Ga. 70 (97 SE2d 135). Accordingly, the trial court erred in failing to charge the jury, pursuant to defendant’s request, that it would not be authorized to return a verdict for plaintiff if it found that he violated a railroad safety rule and such violation was the sole proximate cause of his injuries. See Atlantic Coast Line R. Co. v. Thompson, 213 Ga. 70, supra, reversing Thompson v. Atlantic Coast Line R. Co., 94 Ga. App. 683, 685 (96 SE2d 206). Because we are reversing the judgment of the trial court on other grounds (see Division 2a, supra), however, we need not determine whether the failure to charge the jury pursuant to defendant’s request was harmless error.

3. Inasmuch as defendant did not produce and examine any employees who were present when plaintiff was injured, it cannot be said the trial court erred in charging OCGA § 24-4-22. Western & Atlantic R. Co. v. Morrison, 102 Ga. 319 (1) (29 SE 104). See also Southern R. Co. v. Aeree, 9 Ga. App. 104 (1) (70 SE 352).

4. Defendant contends the trial court erred in refusing to permit defendant to show that plaintiff was dismissed from his employment while permitting plaintiff to show what wages he would have earned as an employee of defendant following his dismissal. This contention is without merit. Plaintiff admitted on cross-examination that he received a letter of dismissal from defendant. Besides, the trial court ultimately struck plaintiff’s testimony concerning the wages he would have received from defendant on hearsay grounds.

5. Plaintiff testified that he was and remained disabled following the incident in question. Defendant sought to impeach plaintiff by showing that, to obtain unemployment compensation benefits, he signed documents stating he was “ready willing and able to work.” The trial court would not permit defendant to make reference to the unemployment compensation benefits. But the trial court did permit defendant to ask plaintiff if he signed documents (once a week for six months and again once a week for 26 weeks) certifying he was “ready willing and able to work.” Plaintiff admitted that he did sign the documents. Defendant contends the trial court erred by refusing to allow it to impeach plaintiff by showing he signed the documents to obtain unemployment compensation benefits.

“In all cases where the object sought to be proved can be proved without violation of a rule of evidence designed to prohibit prejudice, it should be done so, and the rule not broken unless by necessity, or where the merit of the evidence clearly outweighs its prejudice.” Fred F. French Mgmt. Co. v. Long, 169 Ga. App. 702, 703 (2), 704 (314 SE2d 666). Weighing the merit against the prejudice of the proffered evidence, the trial court struck a fair balance between defendant’s right to bring forth evidence of impeachment (see Shirley v. Oglesby, 176 Ga. App. 621 (1) (336 SE2d 820)) and the prejudicial impact of evidence concerning unemployment compensation benefits in a FELA case. See Eichel v. N. Y. Central R. Co., 375 U. S. 253 (84 SC 316, 11 LE2d 307).

Decided November 27, 1990

Rehearing denied December 11, 1990

Branch, Pike & Ganz, Burt DeRieux, Keith J. Reisman, Eileen Crowley, Alston & Bird, Jack H. Senterfitt, Richard T. Fulton, for appellant.

Kelly, Denny, Pease & Allison, Billy E. Moore, Paul R. Bennett, Jones, Bordeaux & Associates, John Wright Jones, Noble Boykin, for appellee.

The trial court permitted defendant to impeach plaintiff. At the same time, it protected plaintiff from the prejudicial impact of collateral social insurance benefits. See Eichel v. N. Y. Central R. Co., 375 U. S. 253, supra. We find no error in this regard.

6. Because the judgment of the trial court is reversed (see Division 2a, supra), we need not consider the remaining enumerations of error. They are either moot or unlikely to recur upon retrial.

Judgment reversed.

Carley, C. J., and Sognier, J., concur.


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    A90A1539.
    RAMOS v. THE STATE.
    (400 SE2d 353)
   Sognier, Judge.

Maurice Ramos appeals from his conviction for theft by taking.

Construed to support the verdict, the evidence adduced at trial showed that on the evening of October 17, 1989, Raymond Civitts, the Director of Security at the Ramada Inn in Clarke County, was patrolling the parking lot of the inn in the regular course of his duties. He noticed appellant, a cook, open the kitchen door and look around briefly. Several minutes later, Civitts observed appellant carry a large black plastic bag from the kitchen to the dumpster in the parking lot, place the bag behind the dumpster, and reenter the inn, where he made a telephone call from a pay phone. Civitts’ suspicions were aroused because he knew that emptying the trash was not one of the duties of a cook pursuant to standard Ramada Inn procedures. Upon investigating, Civitts discovered the bag contained frozen meat, valued at $350, which had been taken from the restaurant’s food lockers. Civitts consulted with his superiors, telephoned the police, and apprehended appellant.

Officer David Leedahl of the Athens Police Department, who responded to the call, testified that when Civitts brought appellant out to the parking lot and indicated he would press charges against him, Leedahl handcuffed appellant and placed him in the back of his patrol car for transport to the jail. Leedahl did not interrogate appellant (with the exception of asking for his name and address), but while in the patrol car, appellant volunteered that “they could take it out of his paycheck” and that he would pay for the items in the bag.

1. Appellant contends the trial court erred by admitting appellant’s inculpatory statement made in the patrol car, because he was in custody when the statement was made, and the facts surrounding the statement show that it was made with the hope of benefit. See OCGA § 24-3-50. We find no merit in this contention. Although appellant argues that he made the statement in hopes that charges would not be pressed, “ ‘[t]he hope or fear contemplated by (OCGA § 24-3-50) must be induced by another. A hope or fear which originates in the mind of the person making the confession and which originates from seeds of his own planting would not exclude a confession.’ [Cit.]” Hall v. State, 180 Ga. App. 366, 367 (1) (349 SE2d 255) (1986). See also Dickey v. State, 157 Ga. App. 13-14 (1) (276 SE2d 75) (1981). Leedahl testified that no promises or threats were made, and there is no evidence in the record suggesting otherwise. Accordingly, the statement was properly admitted. See id.

2. Appellant also contends the trial court erred by denying or curtailing appellant’s right to cross-examine Leedahl in the presence of the jury concerning the events surrounding the statement. We do not agree. Appellant sought to .cross-examine Leedahl regarding whether he had advised appellant of his Miranda rights (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966)) before the statement was made. The State objected to such cross-examination on relevancy grounds, and the trial court properly sustained the objection. Not only had this matter been ruled on earlier during the Jackson-Denno hearing (Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964)), which had been held to determine the voluntariness of the statement, but the necessity of administering Miranda warnings exists only when the individual is interrogated while in custody. Cash v. State, 224 Ga. 798, 799 (1) (164 SE2d 558) (1968); Perkins v. State, 151 Ga. App. 199, 204-205 (4) (259 SE2d 193) (1979), overruled on other grounds Chance v. State, 154 Ga. App. 543, 544 (2) (268 SE2d 737) (1980). Since it is uncontroverted that although appellant was in custody, Leedahl did not interrogate appellant, Miranda warnings were not necessary, and the question of whether they had been given was irrelevant to the issues in the case. No right exists to inquire into irrelevant matters, Deyton v. State, 182 Ga. App. 73, 74 (3) (354 SE2d 625) (1987), and consequently the trial court did not err by curtailing appellant’s cross-examination on this matter.

Decided November 28, 1990

Rehearing denied December 11, 1990

Megan C. De Vorsey, for appellant.

Ken Stula, Solicitor, for appellee.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


author: Carley, Chief Judge. McMurray, Presiding Judge,

text:
    A90A1023.
    SLATER v. BRIGADIER HOMES, INC. et al.
    (400 SE2d 338)
   Carley, Chief Judge.

The facts, insofar as they are relevant to this appeal, are as follows: Appellant-plaintiff originally filed an action against appellee-defendant Brigadier Homes, Inc. (Brigadier) and Country Squire Mobile Homes, Inc. (Country Squire). Although Brigadier and Country Squire both answered, only Brigadier raised the defense of insufficiency of service of process and moved to dismiss on that ground. The trial court entered an extensive order which concluded that service of process on Brigadier was legally insufficient and which explicitly dismissed Brigadier as a party to the case. Thereafter, appellant filed an amended complaint and had Brigadier served with a copy. Brigadier answered the amended complaint and asserted, among its other defenses, that it had not been “properly added as a defendant to this action.” Brigadier subsequently moved that the amended complaint be dismissed as against it, on the ground that appellant had “improperly attempted to add [it] as a defendant. . . without obtaining prior approval from the court to do so.” The trial court granted Brigadier’s motion but certified its order for immediate review. We granted appellant’s application for an interlocutory appeal from the trial court’s order granting Brigadier’s motion to dismiss.

When the trial court granted Brigadier’s original motion to dismiss for insufficiency of service of process, the action remained pending as between appellant and Country Squire. Although this grant of Brigadier’s original motion to dismiss may not have been final, it was nevertheless controlling unless and until it was subsequently revised by the trial court. No such subsequent revision of that order of dismissal was ever made. Thus, at the time of the filing of appellant’s amended complaint, Brigadier was not a party to this lawsuit. Accordingly, a binding precedent of the Supreme Court of Georgia is controlling in the instant case: “[Appellant] contends correctly that [OCGA § 9-11-15 (a)] allows amendment as a matter-of right before entry of a pre-trial order. Where, however, a party seeks to add a new party by amendment, as does [appellant] here, [OCGA § 9-11-15 (a)] must be read in pari materia with [OCGA § 9-11-21], which allows the dropping and adding of parties only ‘by order of the court on motion of any party.’ Since no such motion or leave of court was granted in this case, the trial court properly granted [Brigadier’s] motion to dismiss.” (Emphasis in original.) Clover Realty Co. v. Todd, 237 Ga. 821, 822 (229 SE2d 649) (1976).

Although any decision rendered by this court which is inconsistent with the controlling authority of Clover Realty Co. v. Todd, supra, must be overruled, Daniel & Daniel v. Cosmopolitan Co., 137 Ga. App. 383 (224 SE2d 44) (1976) is clearly not such a decision. The plaintiff in Daniel & Daniel, entirely unlike the plaintiff in either the instant case or Clover Realty Co., did secure leave of court to add an additional defendant and the only “amendable defect” that was noted in Daniel & Daniel was the failure of the plaintiff therein to have served the motion on the original defendant. Thus, Daniel & Daniel does not stand for the proposition that the failure to obtain leave of court to add a new party is an “amendable defect” and is not, therefore, inconsistent with the controlling authority of Clover Realty that the failure to obtain leave of court to add a new party mandates dismissal.

Ed Miniat, Inc. v. Globe Life Ins. Group, 805 F2d 732, 736-737 (2) (7th Cir. 1986) does hold that, under the analogous Federal Rules of Civil Procedure, a plaintiff’s failure to obtain leave of court to file an amended complaint adding new parties will not, in itself, justify dismissal. However, that case involved the adding of plaintiffs as parties to a civil action and, for that reason, it is arguably' distinguishable from the instant case and Clover Realty Co. In any event, “[a] decision by a federal circuit court is not binding but may be persuasive; however, it has no efficacy if it contravenes our appellate decisions.” (Emphasis supplied.) Thayer v. State, 189 Ga. App. 321, 327 (On Motion For Rehearing) (376 SE2d 199) (1988). Our Supreme Court has unquestionably held in Clover Realty Co. that a plaintiff’s failure to obtain leave of court to file an amended complaint adding a new defendant does, in itself, justify dismissal because “ ‘[t]he adding or dropping of parties requires the exercise of a discretion by the court, and, without the requirement that leave of court be obtained in doing so, there could be no exercise of discretion. It is important that the status of parties not be altered or changed save under the supervision of the court.’ [Cit.]” Clover Realty Co. v. Todd, supra at 822.

Judgment affirmed.

Banke, P. J., Birdsong, Sognier and Cooper, JJ., concur. Deen, P. J., McMurray, P. J., Pope and Beasley, JJ., dissent.

McMurray, Presiding Judge,

dissenting.

T 'rpcnpp'f'Pnllv niQQPnf’

“Section 81A-121 [OCGA § 9-11-21] parallels Rule 21 of the Federal Rules of Civil Procedure, and the Federal courts have long construed it to require the obtaining of leave of court when the plaintiff seeks to assert a claim against one who is not already a party to the proceedings. [Cits.]” Robinson v. Bomar, 122 Ga. App. 564, 567 (177 SE2d 815). See also C & S Land &c. Corp. v. Yarbrough, 153 Ga. App. 644, 646 (3) (266 SE2d 508). Was defendant Brigadier added as a “new” party and served with process without leave of court? No. Plaintiff did not add a new party when he amended the complaint setting forth the proper agent for service of process. Rather, plaintiff simply perfected service upon a party which had already been named as a defendant in the case. Compare Clover Realty Co. v. Todd, 237 Ga. 821 (229 SE2d 649) in which plaintiff tried to add an entirely new entity as a defendant by amendment. True, the trial court had already granted defendant Brigadier’s motion to dismiss for insufficiency of service of process. But that dismissal was not a final judgment and, in the absence of an order directing the entry of judgment (see OCGA § 9-11-54 (b)), it was subject to revision at any time before the entry of a judgment adjudicating all claims and liabilities of all parties. See Grizzard v. Davis, 131 Ga. App. 577 (206 SE2d 853). Thus, even though defendant Brigadier may have been “dismissed,” it was not added to the suit as a new party when plaintiff amended the complaint. Plaintiff was not required, therefore, to obtain an order pursuant to OCGA § 9-11-21.

Even if plaintiff had been required to obtain an order pursuant to OCGA § 9-11-21, the mere failure to obtain the order does not, in my view, justify the dismissal of plaintiff’s complaint. Ed Miniat, Inc. v. Globe Life Ins. Group, 805 F2d 732, 736, 737 (7th Cir. 1986). See also Daniel & Daniel v. Cosmopolitan Co., 137 Ga. App. 383, 385 (224 SE2d 44). In the absence of a showing that defendant Brigadier was prejudiced by plaintiff’s failure to obtain leave of court, I see no reason why such an oversight could not be corrected. See Ed Miniat, Inc. v. Globe Life Ins. Group, supra.

I would reverse the judgment of the trial court. Defendants have been served with process and discovery is underway. It is time to get to the merits of this case.

I am authorized to state that Presiding Judge Deen, Judge Pope and Judge Beasley join in this dissent.

Decided November 21, 1990

Rehearing denied December 12, 1990

George M. Hubbard III, for appellant.

Kennedy, Lewis, Smart & Brannon, Charles W. Brannon, Jr., for appellees.


author: Carley, Chief Judge. Sognier, Judge,

text:
    A90A1105.
    BORG-WARNER INSURANCE FINANCE CORPORATION v. EXECUTIVE PARK VENTURES et al.
    (400 SE2d 340)
   Carley, Chief Judge.

A fire partially destroyed commercial offices that were owned by appellee-plaintiff Executive Park Ventures and leased to appellant-defendant Borg-Warner Insurance Finance Corporation. Alleging that one of appellant’s employees or agents had negligently set the fire, appellee initiated this action for damages. Appellant answered and asserted, among its other defenses, the applicability of the following lease provision: “[Appellee] and [appellant] shall hold each other (including its employees, customers, invitees, licensees and others) harmless from and against any and all liability, damage, injury, action or causes of action whatsoever suffered or occasioned upon the premises or arising out of the operation, conduct and use of the premises.” After a period of discovery, cross-motions for summary judgment were filed as to the issue of whether this lease provision was a bar to appellee’s suit against appellant. The trial court denied appellant’s motion and granted summary judgment in favor of appellee. Appellant appeals from this order of the trial court.

As a general rule, a party can secure an enforceable contractual waiver of liability for the consequences of his own ordinary negligence if this intention is clearly and unequivocally expressed and if such a waiver is not otherwise prohibited by statute. Batson-Cook Co. v. Ga. Marble Setting Co., 112 Ga. App. 226 (144 SE2d 547) (1965). Arguably, the instant lease provision does not clearly and unequivocally express the mutual intent of appellee and appellant to waive, as against each other, liability for the consequences of their own respective negligent acts or omissions. See generally Hall v. Skate Escape, Ltd., 171 Ga. App. 178 (319 SE2d 67) (1984).

However, even assuming that the provision could otherwise be construed as a mutual waiver of liability for the consequences of appellee’s and appellant’s respective negligent acts or omissions, the provision would nevertheless be unenforceable as a bar to the instant action. OCGA § 13-8-2 (b) provides, in relevant part, that, insofar as certain specified contracts are concerned, a provision “purporting to indemnify or hold harmless the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee, his agents or employees, or indemnitee is against public policy and is void and unenforceable. . . .” Leases are among those contracts that are included within the ambit of the public policy prohibition established by OCGA § 13-8-2 (b). Country Club Apts. v. Scott, 246 Ga. 443 (271 SE2d 841) (1980). Since appellee seeks to recover for property damages allegedly resulting from the sole negligence of one of appellant’s agents or employees, it follows that, within the context of the instant action, a provision in the lease whereby appellee purported to waive liability for property damages allegedly resulting from the sole negligence of appellant’s agents or employees would be void and unenforceable. See National Candy Wholesalers v. Chipurnoi, Inc., 180 Ga. App. 664 (350 SE2d 303) (1986). Accordingly, the trial court correctly denied appellant’s motion for summary judgment and granted summary judgment in favor of appellee.

Even under the narrow construction of OCGA § 13-8-2 (b) advanced by the dissent, the trial court’s rulings were nevertheless correct. As the dissent notes, this court’s decision in Barnes v. Pearman, 163 Ga. App. 790 (294 SE2d 619) (1982) was affirmed by the Supreme Court in 250 Ga. 628 (301 SE2d 647) (1983). The dissent would distinguish the Barnes decision on the ground that “the lease containing the exculpatory clause at issue [therein] involved ‘construction, alteration, repair, or maintenance,’ in that it specifically required the landlord to perform electrical modifications to the premises, which modifications were alleged to have caused the injury forming the basis for the suit.” It is clear, however, that the lease containing the exculpatory clause at issue in the instant case likewise involves “construction, alteration, repair, or maintenance,” in that it specifically requires appellant to “take good care of the Premises and its fixtures and permit no waste, except normal wear and tear,” and it is the negligent breach of that obligation to repair or maintain the premises which forms the basis for appellee’s suit. “This clause and similarly worded clauses contained in lease contracts have been construed by the Georgia courts a number of times, and it is now settled that where a lease contract containing such a clause gives to the lessee exclusive possession and control of the premises, only such casualties as amount in law to accidents or acts of God will relieve the lessee of liability to repair when the premises are damaged during the term of the lease. [Cits.] This means, of course, that the lessee is liable to the lessor if he returns the premises in a damaged condition, if such damage was caused by the default or negligence of the lessee.” Taylor v. R.O.A. Motors, 114 Ga. App. 671, 681 (6) (152 SE2d 631) (1966). See also Raybestos-Manhattan v. Friedman, 156 Ga. App. 880, 881 (1) (275 SE2d 817) (1981); Martin v. Medlin, 81 Ga. App. 602, 604 (a) (59 SE2d 519) (1950). Accordingly, the Barnes decision is not distinguishable as the dissent contends, and the Supreme Court’s affirmance of that decision must necessarily be read as supporting the extension of OCGA § 13-8-2 (b) to the instant lease.

Judgment affirmed.

McMurray, P. J., Banke, P. J., Birdsong, Pope and Cooper, JJ., concur. Deen, P. J., concurs in the judgment only. Sognier and Beasley, JJ., dissent.

Sognier, Judge,

dissenting.

I respectfully dissent. Although I fully understand the origin of the majority’s reasoning concerning this subject of much confusion in our courts, I cannot agree with its conclusion that OCGA § 13-8-2 (b) applies to the lease in question.

OCGA § 13-8-2 (b) provides in its entirety that “[a] covenant, promise, agreement, or understanding in or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair, or maintenance of a building structure, appurtenances, and appliances, including moving, demolition, and excavating connected therewith, purporting to indemnify or hold harmless the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee, his agents or employees, or indemnitee is against public policy and is void and unenforceable, provided that this subsection shall not affect the validity of any insurance contract, workers’ compensation, or agreement issued by an admitted insurer.”

The plain language of the statute “creates two threshold conditions: that the exculpatory clause purports to protect the indemnitee against the consequences of his sole negligence and that the agreement pertain to the maintenance or construction of a building.” Smith v. Seaboard Coast Line R. Co., 639 F2d 1235, 1242 (5th Cir. 1981) (construing predecessor statute to OCGA § 13-8-2 (b)). Moreover, because the statute changes the common law rule permitting parties to contract for exculpation in general, it must be strictly construed. Id. In Camp Concrete Prods, v. Central of Ga. R. Co., 134 Ga. App. 537, 539 (215 SE2d 299) (1975) (one judge concurring in judgment only), this court specifically held that the predecessor statute to OCGA § 13-8-2 (b) (Ga. Code Ann. § 20-504), was applicable only to cases where the second threshold condition was met. In Frazer v. City of Albany, 245 Ga. 399, 401-402 (265 SE2d 581) (1980), the Supreme Court, citing with approval Camp Concrete Prods., held that Ga. Code Ann. § 20-504 was applicable to a lease which involved construction of a civic center, and in Country Club Apts. v. Scott, 246 Ga. 443 (271 SE2d 841) (1980), the court cited Frazer for the proposition that OCGA § 13-8-2 (b) was “applicable to exculpatory clauses in lease contracts.” Country Club Apts., supra at 444.

It is plain, not only from Frazer but from the statute itself, that OCGA § 13-8-2 (b) is applicable to lease contracts. The fact that the contract is a lease, however, is not sufficient by itself to bring the contract under the plain language of the statute. The contract also must be a lease which meets the two threshold requirements, both of which are clearly expressed in the statute and thus need no judicial construction. “It is well established that where the language of an act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden. [Cit.]” Georgia Farm &c. Ins. v. Jah, 193 Ga. App. 169, 171 (387 SE2d 447) (1989).

Moreover, “ [i]t is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.” (Citations and punctuation omitted.) Hoffman v. Doe, 191 Ga. App. 319, 321 (381 SE2d 546) (1989). Consequently, even assuming that OCGA § 13-8-2 (b) is susceptible of construction, the majority’s construction is flawed because it renders superfluous the legislature’s later expression of public policy in OCGA § 44-7-2 (b), a statute in pari materia, which must be considered in arriving at the proper construction of OCGA § 13-8-2 (b). See generally Fayette County &c. Assessors v. Ga. Utilities Co., 186 Ga. App. 723, 726 (2) (368 SE2d 326) (1988). OCGA § 44-7-2 (b), which provides that “a landlord or a tenant may not waive, assign, transfer, or otherwise avoid any of the rights, duties, or remedies contained in” certain Code sections in any lease “for the use or rental of real property as a dwelling place,” would be totally unnecessary if OCGA § 13-8-2 (b) applied to all lease contracts.

I do not believe the Supreme Court failed to recognize in Frazer that the public policy expressed in OCGA § 13-8-2 (b) applied only to contracts dealing with the construction, alteration, repair or maintenance of buildings, particularly as the opinion cited with approval Camp Concrete Prods., which specifically so held. Nor do I believe that Country Club Apts, holds otherwise, particularly as Camp Concrete Prods, was not overruled therein and the opinion correctly recognized that OCGA § 44-7-2 governs residential leases such as the one at issue there. Because the lease involved in Country Club Apts, was for residential premises, no construction of OCGA § 13-8-2 (b) was necessary to the decision. Thus, I view statements in Country Club Apts, regarding OCGA § 13-8-2 (b) as obiter dicta. While helpful and interesting as background and history of the State’s public policy on the subject, such statements simply cannot serve as a holding that OCGA § 13-8-2 (b) applies to every lease contract, even if the lease does not pertain to the construction, alteration, repair, or maintenance of a building.

“The apparent purpose of [OCGA § 13-8-2 (b)] is to prevent a building contractor, subcontractor, or owner from contracting away liability for accidents caused solely by his negligence, whether during the construction of the building or after the structure is completed and occupied.” Smith, supra at 1242. Although the policy reasons behind OCGA § 13-8-2 (b) were not stated and no clear legislative history is available, it would seem that construction contracts were singled out because of the possibility of hidden, or latent, defects of an extremely dangerous nature and not ordinarily detectable by a lay person. The enactment in other states of legislation similar to OCGA § 44-7-2 (b) is generally based on a desire to protect residential tenants from landlords because of the disparity in their bargaining positions, which can lead to contracts of adhesion, and on the recognition of the fundamental nature of the shelter requirement. See generally “Indemnity and Exculpation: Circle of Confusion In The Courts.” 33 Emory L. J. 135, 155-156 (1984).

The problem is that subsequent to the Supreme Court’s decision in Country Club Apts., the purpose of OCGA § 13-8-2 (b) was obscured as decisions involving it became broader. In Burson v. Copeland, 160 Ga. App. 481, 482 (2) (287 SE2d 386) (1981), this court, citing Country Club Apts., extended OCGA § 13-8-2 (b) to cover a commercial lease which bore no relation to the threshold requirement in the statute that it pertain to construction. Although Barnes v. Pearman, 163 Ga. App. 790 (294 SE2d 619) (1982), aff’d 250 Ga. 628 (301 SE2d 647) (1983), applied OCGA § 13-8-2 (b), the lease containing the exculpatory clause at issue involved “construction, alteration, repair, or maintenance,” in that it specifically required the landlord to perform electrical modifications to the premises, which modifications were alleged to have caused the injury forming the basis for the suit. Thus the Supreme Court’s summary affirmance of this court’s holding that OCGA § 13-8-2 (b) applied cannot necessarily be read as supporting the extension of OCGA § 13-8-2 (b) to all leases. However, in National Candy Wholesalers v. Chipurnoi, Inc., 180 Ga. App. 664 (350 SE2d 303) (1986), by interpreting the statement in Country Club Apts, as an extension of the policy expressed in OCGA § 13-8-2 (b) to all leases, this court again disregarded the plain language of the statute. Chipurnoi, supra, misread Country Club Apts., and further compounded its misinterpretation by failing to recognize that Country Club Apts, was citing OCGA § 44-7-2, and not OCGA § 13-8-2 (b), when it referred with approval to the policy that a “ ‘ . . . tenant may not. . . avoid in any contract. . . any of the rights or duties or remedies . . . relating to the duties of a landlord.’ ” Chipurnoi, supra at 666. Unfortunately, the majority now cites Chipurnoi as authority for its holding here.

In my view, it is time to clear away the confusion and return to the obvious plain meaning and purpose of OCGA § 13-8-2 (b). This case is an excellent illustration of how the laudable purposes of OCGA §§ 13-8-2 (b) and 44-7-2 (b) are ill served by extending their protections indiscriminately. Here, it is obvious that the contracting parties both had substantial bargaining power and negotiated the clause in question to accommodate their various business purposes. Governmental protection is unnecessary in such a case. Since Burson and Chipurnoi, supra, did not involve leases which met the two threshold requirements in OCGA § 13-8-2 (b), I would overrule those two cases.

Decided November 21, 1990

Rehearing denied December 12, 1990

Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, William E. Zschunke, for appellant.

R. Wayne Thorpe, Alston & Bird, Richard R. Hays, Smith, Gambrell & Russell, Thomas E. McCarter, for appellees.

“The ‘freedom of individuals to contract’ is part of the basic liberties enjoyed by the citizens of this state and should not be interfered with in the absence of clear necessity. So important is this freedom that our legislature is prohibited from passing laws impairing the obligation of contract. [Cit.] ” National Consultants v. Burt, 186 Ga. App. 27, 32 (366 SE2d 344) (1988). I would follow the venerable rule, as stated in Phenix Ins. Co. v. Clay, 101 Ga. 331, 332 (28 SE 853) (1897), that “[i]t is well settled that contracts will not be avoided by the courts as against public policy, except ‘where the case is free from doubt and where an injury to the public interest clearly appears.’ ” Because “all people who are capable of contracting shall be extended the full freedom of doing so if they do not in some manner violate the public policy of this state,” Cash v. Street & Trail, 136 Ga. App. 462, 466 (221 SE2d 640) (1975), and I do not find the exculpatory clause in this commercial lease offensive to the public policy of this state expressed in either OCGA § 13-8-2 (b) or OCGA § 44-7-2 (b), I would reverse the judgment below.

I am authorized to state that Judge Beasley joins in this dissent.


text:
    A90A1619.
    ELLISON v. THE STATE.
    (400 SE2d 360)
   McMurray, Presiding Judge.

Defendant Ellison appeals his conviction of the offense of rape. Held:

1. Defendant contends the trial court erred in refusing to admit evidence of the prosecutrix’s prior false allegations of rape against a third person. In Smith v. State, 259 Ga. 135, 136 (1) (377 SE2d 158), the Supreme Court of Georgia held that, subject to a threshold determination, evidence of prior false allegations by a rape victim does not fall within the proscription of rape-shield laws and that such evidence may be admitted.

In the case sub judice, we are concerned with the application of the threshold determination. Before admitting evidence of prior false accusations the trial court, outside the presence of the jury, must determine “that a reasonable probability of falsity exists.” The threshold determination is included in the procedure mandated by the Supreme Court for the express purpose of protecting the prosecutrix from “unfounded allegations that she has made [false] allegations in the past. . . .” Id. at 138.

Outside the presence of the jury, defendant offered testimony that the prosecutrix had told a friend that B. H. had raped her. The prosecutrix also testified that she had told a second friend, but had not fully identified B. H., giving only his first name to her. A friend of the prosecutrix testified that sometime after the alleged incident she was told by the prosecutrix that she had been raped by B. H. The friend stated that she was skeptical of the prosecutrix’s statement since the prosecutrix continued to date B. H., including playing tennis and going out to dinner together, after the “rape.” B. H. testified that he had never raped or even had consensual sexual intercourse with the prosecutrix. The State elicited evidence of an unexplained period of emotional distress during which the prosecutrix contemplated suicide and there was some confusion as to the date when the prosecutrix was allegedly raped by B. H.

The trial court determined that there was no reasonable probability that the previous allegations were false. In order to review this conclusion we must make some assumption as to the meaning of “reasonable probability.” This term is taken verbatim from the Virginia case of Clinebell v. Commonwealth, 368 SE2d 263, 266 (1) (Va. 1988). Nonetheless, the definition of this term is well settled under Georgia law and we presume that definition was intended. A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Lloyd v. State, 258 Ga. 645, 647 (373 SE2d 1). See Gaither v. Cannida, 258 Ga. 557, 559 (372 SE2d 429).

In our view, the trial court abused its discretion in determining that there was no reasonable probability that the prosecutrix had made prior false allegations. The prosecutrix admitted the prior accusation (albeit she did not concede that the accusation was false) and defendant presented the testimony of an independent third party that the prior accusation was false. Defendant could hardly have made a clearer showing. The trial court erred in excluding the defendant’s evidence of prior false accusations. Smith v. State, 259 Ga. 135, 136 (1), supra.

Decided December 3, 1990

Rehearing denied December 12, 1990

Mathis, Sands, Jordan & Adams, Charles A. Mathis, Jr., Maxine Blackwell, for appellant.

Joseph H. Briley, District Attorney, Al Martinez, Assistant District Attorney, for appellee.

2. Defendant’s fourth and fifth enumerations of error complain of the admission into evidence of statements made by the prosecutrix, following the rape, to the director of a rape crisis center and to a physician. While this issue is argued in the context of the res gestae exception to the hearsay rule, we find that since the prosecutrix was present at trial and available for cross-examination, the evidence at issue was admissible as prior consistent or inconsistent statements under Cuzzort v. State, 254 Ga. 745 (334 SE2d 661). See also Jones v. State, 194 Ga. App. 356, 357 (2) (390 SE2d 623) and Champion v. State, 192 Ga. App. 43, 44 (2) (383 SE2d 565).

3. Defendant’s remaining enumerations of error are without merit. Enumerations two and three complain of allegedly improper comments by the assistant district attorney before the jury and enumeration eight complains of a violation of the ruling in Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69), but since these issues were not raised before the trial court they are waived. Also, without merit are defendant’s enumerations six and seven wherein defendant complains of the trial court improperly sustaining the State’s objections to defendant’s attempts to elicit inadmissible hearsay evidence.

Judgment reversed.

Carley, C. J., and Sognier, J., concur.


author: Pope, Judge.

text:
    A90A0753.
    OATES v. COFFEE COUNTY BOARD OF EDUCATION.
    (400 SE2d 355)
   Pope, Judge.

We granted this discretionary appeal to consider whether a tenured teacher employed pursuant to a school year contract at the beginning of the academic year, but who resigns during the year and then is re-employed during the same school year, must receive notice of non-renewal of that contract pursuant to OCGA § 20-2-211 (b).

The parties stipulate the following facts: Oates was employed by the Coffee County Board of Education (Coffee County) for more than four years before the 1986-87 school year and had tenure pursuant to the Georgia Fair Dismissal Act (OCGA §§ 20-2-940 — 20-2-947). In May 1987, Oates and Coffee County entered into a contract employing Oates to teach during the 1987-88 school year. At that time, Oates held a T-4 teaching certificate in math, grades K through 12, that was valid only through August 31, 1987. Oates failed to pass the Teacher Certification Test and his teaching certificate was not renewed. Oates resigned on September 11, 1987. However, the 1987-88 school year began on August 24, 1987, and Oates was paid through August 31, 1987, even though he was not present at school during that time. In December 1987, Oates again took the Teacher Certification Test and was notified in February 1988 that he had passed. At that time, he was issued a new teaching certificate valid through August 31, 1993. Oates was hired by Coffee County for a vacancy at Coffee County Junior High School. Oates received no written notice by April 15, 1988 of non-renewal of that contract and Coffee County did not offer Oates a contract for the 1988-89 school year.

Oates filed a demand for a hearing with the Coffee County Board of Education and at the conclusion of that hearing, the local board upheld the decision regarding non-renewal. On appeal, without opinion, the State Board of Education reversed the local board. Coffee County then appealed that decision to superior court. The court reversed the decision of the State Board of Education, again without opinion. We then granted this discretionary appeal. Held:

We affirm the decision of the superior court. OCGA § 20-2-211 (a) requires teacher employment contracts to be in writing. OCGA § 20-2-211 (b) provides in pertinent part “each local governing board shall, by not later than April 15 of the current school year, tender a new contract for the ensuing school year to each teacher . . . certificated by the State Board of Education on the payroll of the local unit of administration at the beginning of the current school year, except those who have resigned or who have been terminated, or shall notify in writing each such teacher ... of the intention of not renewing his or her contract for the ensuing school year. When such notice of intended termination has not been given by April 15, the employment of such teacher . . . shall be continued for the ensuing school year unless such employee has been removed in the manner as provided [by OCGA § 20-2-940]. . . .” (Emphasis supplied.)

Although Oates argues at length about tenure, we find that the issue of tenure is irrelevant to the issue of whether the local board was required to provide him with notice in this case. The plain language of OCGA § 20-2-211 (b) states that a local board is required by April 15 to renew the contract of a teacher or to notify a teacher of non-renewal, only if such teacher was certified by the State Board and was employed by and on the payroll of the local board at the beginning of the school year and such teacher has not resigned or been terminated during the school year. The statute contemplates continuous employment under the same contract of employment. Those, such as Oates, who resign or are terminated are not covered by the provisions of OCGA § 20-2-211 (b). By definition, one who is employed under a contract later than the beginning of the school year is not entitled to notice of non-renewal.

Decided November 29, 1990

Rehearing denied December 13, 1990

Mills & Chasteen, Ben B. Mills, Jr., for appellant.

Sidney L. Cottingham, for appellee.

Heard, Leverett & Phelps, E. Freeman Leuerett, amicus curiae.

Oates argues that this reading of the statute is unreasonable in that it means that a teacher who enjoyed tenure pursuant to OCGA § 20-2-942 (b) (1) loses it immediately upon his or her resignation. The significance of tenure is that a tenured teacher’s contract may be non-renewed only for one of the reasons specified in OCGA § 20-2-940. The effect of resignation upon a tenured teacher is immediate loss of tenure rights. We do not find our reading of the statute unreasonable or strained. Rather, this result is demanded by the plain words of OCGA § 20-2-211 (b).

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


author: Beasley, Judge.

text:
    A90A0770.
    LaBANZ v. BANK SOUTH, MACON et al.
    (400 SE2d 357)
   Beasley, Judge.

Plaintiff Joseph LaBanz appeals from the verdict in his favor in his suit against his mother, Barbara LaBanz, and Bank South, Macon. He alleged that the bank and his mother were jointly liable for the loss of $200,000 in insurance proceeds. The jury awarded $131,011.88 (including interest) against Mrs. LaBanz, who filed no answer to the complaint but argued on damages, and $31,079.60 against the bank. He enumerates as error: failure to rule that the verdict was insufficient as to the bank; failure to give certain requested charges on three subjects; allowing concluding argument by two attorneys for the bank. This third enumeration will not be considered because the record does not show it was raised below.

Viewed in favor of the verdict, the facts were that Joseph’s parents, Maryland residents, divorced in 1978. Mr. LaBanz was murdered in 1979 when Joseph was 13. His will left everything to his ex-wife if she survived him for 30 days. In addition to the estate passing by will, there were two life insurance policies with Joseph as beneficiary. Mrs. LaBanz petitioned the Maryland court and was appointed guardian of Joseph’s property. The first payout of $100,000 was made to her by the insurance company’s check dated January 29, 1980, payable to her “as guardian of the property of Joseph Duvall LaBanz, a minor.”

On February 7, Mrs. LaBanz flew to Macon and was met by her sister, Ms. Angelo (later Mrs. Smith). Angelo, a real estate agent as was LaBanz, had numerous dealings with the bank and had dealt extensively with McGehee, a loan officer. Prior to LaBanz’ coming to Macon, Angelo had shown McGehee a newspaper clipping regarding the murder and told him her sister was coming to invest a large sum of money and that it might have come from the death. Angelo and LaBanz had jointly purchased property in Florida the year before for investment purposes and had opened a joint checking account at the bank for use in future investments.

On February 8, 1980, Angelo introduced McGehee and LaBanz. She was not privy to any discussions between them thereafter. LaBanz endorsed the insurance check exactly as it was made out. Of the $100,000, $60,000 went into a savings account opened that day in her name. The remaining $40,000 went into the Angelo/LaBanz checking account. Loan officers did not handle making deposits or opening accounts. That was done by secretarial and other bank personnel.

McGehee did make a loan to LaBanz of $35,400. Of that loan, $5,400 was disbursed to repay Angelo for covering LaBanz’ bad checks. The remaining $30,000 went into the Angelo/LaBanz checking account to be used in closing on the Smith farm purchased jointly in their two names. LaBanz assigned the $60,000 savings account to the bank that day as collateral for the loan. Of that initial $60,000 in the savings account, LaBanz withdrew $24,000 and deposited it into her personal checking account.

The $35,400 loan note was never paid and the bank seized the pledged savings account in February 1983. Neither Mrs. LaBanz’ personal account nor the Angelo/LaBanz account was pledged to the bank and no funds were seized by the bank from these accounts.

So much for the first insurance proceeds.

On February 26, 1980, LaBanz negotiated the second $100,000 check, with the same payee language, and purchased a certificate of deposit in only her name. Again, she endorsed the check as made out.

That certificate was pledged to the bank on March 3, 1980, to secure a $35,000 note to LaBanz, which was used by Angelo to finance some property. The certificate was released from pledge the next week when the note was paid off.

From March 27, 1980, until November 3, 1980, LaBanz borrowed another $99,500 from the bank, which was combined in a note for that amount on October 23, 1980. The certificate of deposit secured the note. The proceeds from the certificate were used by LaBanz on January 25, 1982, to pay the note’s principal and some interest. She signed another note that day for $54,721.84, representing the balance of the interest plus several 1981 loans.

The proceeds of these loans were largely used by Angelo and LaBanz to invest in real estate, including the Smith farm and the residence in which LaBanz and Joseph lived after moving to Macon in 1981. The $54,721.84 note was secured by the residence property; the bank later foreclosed on the note and sold the property. Most of the other investment property was eventually foreclosed upon by either Bank South or other banks.

LaBanz had been required to file a $100,000 bond in Maryland for the guardianship, but she failed to comply with a court order to increase the bond to cover the second payment of $100,000. She filed two accountings with that court, in 1981 and 1983.

In April or May of 1981, LaBanz hired an attorney and signed a trust instrument conveying all the real property and other assets to herself as trustee for Joseph. This was the first time Angelo and Mc-Gehee were aware of Joseph’s interests. Joseph reached majority in 1984.

1. We first consider the ground raised in the motion for new trial that the verdict “is inconsistent and unsupported by the evidence since the facts established that the Bank’s liability would have been incurred as of the negotiation of the checks in question, and if there was any misappropriation on the part of the Bank, it would have been equal to the misappropriation of . . . LaBanz,” i.e., joint liability for conversion.

The bank contended throughout the trial that its liability and that of LaBanz were entirely separate issues and that its liability, if any, had to be predicated upon its participation, other than merely by negotiating the checks, either in the conversion or in allowance of LaBanz’ use of the funds after notice to the bank of Joseph’s interest. The court so charged the jury without objection.

At the close of the case, Joseph moved for directed verdict on the ground that the endorsements were restrictive endorsements under the UCC and that the bank failed to apply the proceeds in accordance with the endorsement. That motion, however, referred only to the first $100,000. No motion was made as to the second. The denial of that motion for directed verdict was not appealed. The verdict form reflected separate verdicts for each defendant. It was not objected to by Joseph either when submitted to the jury or returned.

“[W]here ‘an inconsistent and void verdict is returned by the jury, it is proper for the trial judge to refuse to receive the verdict, and to require them to return for further deliberations, under proper instructions. (Cits.).’ Thompson v. Ingram, 226 Ga. 668, 671 (2) (177 SE2d 61) (1970). See OCGA §§ 9-12r4; 9-12-8.” Kemp v. Bell-View, 179 Ga. App. 577, 581 (4) (346 SE2d 923) (1986). However, “[u]pon hearing an improper verdict rendered, a litigant should not sit silently by, hoping to gain a retrial by failing to object. Todhunter v. Price, 248 Ga. 411 (1) (283 SE2d 864) (1981).” Clifton v. Clifton, 249 Ga. 831, 832 (294 SE2d 518) (1982).

Any objection to the allegedly inconsistent verdict was waived by appellant’s failure to raise it in the trial court when it could have been remedied then and there with the same jury if deemed erroneous. Denial of the motion for new trial on this ground was not error.

2. Enumerations 2, 3, and 4 cite failures to give numerous instructions requested by plaintiff and will be addressed together.

At the conclusion of the charge, the court inquired as to objections. Appellant Joseph responded to the failure to give the above-referenced charges simply by reciting the number.

(a) Enumeration 2. Appellant’s argument on the issue of attorney fees and damages, requests 16 and 17, hinges upon the contention that the conversion by the bank occurred at the time of presentation of the two checks. The jury’s verdict reflects its conclusion that the bank officers were not aware that, when the checks were originally negotiated, they were subject to the guardianship or were being misapplied. In this context, there was no basis for the imposition of attorney fees or punitive damages. Trust Co. Bank v. Henderson, 185 Ga. App. 367, 372 (4) (364 SE2d 289) (1987), aff’d 258 Ga. 703 (373 SE2d 738) (1988).

(b) Enumeration 3. Requests 4, 7, 10, 13, and 18 deal with duties of a guardian toward a ward and not with the bank’s duties. The liability of guardian LaBanz for the conversion of the ward’s funds was not in dispute since she had not answered. Violation of her duty was established. The only liability issue left was whether the bank knew of the guardianship and thereafter allowed dissipation of the funds. A charge on the guardian’s duties was given, in any event. There was no error.

(c) Enumeration 4. Requests 20, 21, and 23 deal with provisions of the UCC on restrictive endorsements. Enumeration 4 states that the giving of these charges “applicable to the negotiation of the checks . . . would have required the Court to grant Appellant’s Motion for Directed Verdict as to the liability of the Appellee Bank and would have made the damages between the bank and Appellee . . . LaBanz identical.” The court denied the motion, which as stated earlier is not enumerated as error.

Decided November 29, 1990

Rehearing denied December 13, 1990

Talbot & Ladson, Thomas W. Talbot, Deborah A. Edwards, for appellant.

Martin, Snow, Grant & Napier, George C. Grant, John T. Mc-Goldrick, Jr., for appellees.

Barbara A. LaBanz, pro se.

The court, in denying that motion for directed verdict, evidently rejected Joseph’s contention that the endorsement was restrictive as defined in OCGA §§ 11-3-205 and 11-3-206, concluding instead that the endorsements were in blank, as covered by OCGA § 11-3-204 (2). The designation of the payee as a fiduciary is not a restrictive endorsement. See also OCGA § 11-3-117 (b).

Failure to give the inapplicable principles was not error. As to the bank’s duties, see Bank South v. Grand Lodge &c., 174 Ga. App. 777 (331 SE2d 629) (1985); Service Lines v. Trust Co. Bank, 189 Ga. App. 891 (377 SE2d 872) (1989).

Judgment affirmed.

Deen, P. J., and Pope, J., concur.

       Angelo thereafter married Smith.


text:
    A90A1445.
    JONES et al. v. CAMPBELL et al.
    (400 SE2d 364)
   Beasley, Judge.

Mr. and Mrs. Campbell were granted summary judgment in a negligence suit for injury to Mr. Jones and loss of consortium to Mrs. Jones.

Viewed in favor of the Joneses, opponents of summary judgment, the evidence was as follows. The Campbells owned the property at issue and had lived there for several years before moving out-of-state in 1979. They rented the residence to the Joneses who lived in it continuously before the incident in 1986. In some years there were written leases and in some years the Joneses carried over.

At the rear of the property was a stream, varying in width from four to seven or eight feet, which served as storm drainage for the area. The property was subject to, but did not include, a sewer easement adjacent to the stream.

During the seven years the Joneses lived there, Mr. Jones mowed the lawn twice weekly, including the area where he was injured. Mr. Jones testified that during the period of their residency, the banks eroded between one foot and two feet.

Mrs. Jones notified the Campbells that some erosion was occurring along the stream embankment, and in mid-1985, Mr. Campbell visited the property and examined the area. He did not believe any danger was created, but contacted the city concerning repairs to the drainage easement area/stream. Representatives of the city also came and viewed the property. Mr. Campbell agreed to pay for the materials for the city to do the repairs, but they had not been done at the time of the accident. He wrote to the city again requesting the repairs in March 1986.

On July 12, 1986, Mr. Jones was mowing the grass three to three- and-a-half feet from the edge of the stream. About a foot from where the incident occurred was a manhole cover over an underground sewer, which was part of the sewer easement. Mr. Jones said “[w]hat happened, the ground give away. When I fell in, it’s about 3 feet wide and about two feet deep. It came above my ankle, the hole I was in.” Additionally, Mr. Jones testified: “Q. The ground just dropped out? A. Yeah, yeah. Q. So we’re not talking about the bank ... A. Oh, no, no. Q. . . . caving in? A. No, this was a hole.” After the hole appeared, there was still intact land between the hole and the creek. As stated by Mrs. Jones, “[o]h yeah, because he didn’t cut exactly on the edge, or we knew not to, you know, because it was eroding.” The erosion continued, and within several months the area where Mr. Jones was injured washed away.

The complaint alleged that “suddenly and without warning, the embankment gave way and collapsed under Mr. Jones, causing him to fall straight down into the newly created hole . . . ,” resulting in his foot slipping under the mower. Mr. Jones lost two toes and suffered a severe laceration on the ball of his foot.

1. “In order ‘(t)o prevail on a motion for summary judgment (OCGA § 9-11-56), a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. (Cits.)’ Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981); [Cit.].” Willis v. Allen, 188 Ga. App. 390, 391 (373 SE2d 79) (1988).

Plaintiffs contended that the incident was the result of the Campbells’ “failure to maintain, repair, remedy or correct a defective condition, . . . which defective condition was actually known to the Defendants.” Their claim is based on OCGA §§ 44-7-13 and 44-7-14, which define the landlord’s duty to keep the premises in repair and hold the landlord “responsible for damages arising from . . . the failure to keep the premises in repair.”

After taking the Joneses’ depositions, defendants filed their motion, contending that they had no notice of any sinkhole and therefore no duty of repair, and that notice of bank erosion was not notice of the potential of sinkholes, none having ever previously occurred.

Another aspect, a lack of proximate cause as a matter of law, was also argued at the hearing. Appellants urge that the trial court should not have considered the issue of proximate cause because they had no notice that was to be a basis for the motion. The issue is adequately raised in the motion.

2. Plaintiffs’ allegation is that the injuries were proximately caused by the deterioration of the embankment. While there is some evidence that the wall or bank adjacent to the hole collapsed after the hole was created, there is no evidence that the erosion of the embankment caused the hole. Mr. Jones did not fall when erosion removed the ground he was stepping on; he fell into a hole which appeared several feet from the bank. There is no evidence to show that the erosion, of which all parties knew, created the hole into which Mr. Jones fell. There was no evidence to show that erosion such as existed at this property could or did cause the hole to occur. There was no evidence to show that the Campbells, any more than the Joneses, should reasonably have foreseen the creation of such a hole appearing by the continuing erosion of the stream embankment.

Some evidence of causation linking what was known (a continuing deterioration of the stream bank) with what specific “defect” resulted in the injury (a suddenly-appearing sinkhole) would have to be presented by plaintiffs to counter the undisputed evidence that the hole was at a distance from the erosion and closer to an underground sewer.

Here, the only indication that the hole was caused by the erosion was Mrs. Jones’ statement in her affidavit that there was “no question in my mind that the ground gave way . . . because of the instability of the embankment due to the continued erosion of the stream banks.” No basis in fact or experience, nor any indication of her qualifications to give such an opinion support her supposition, which proves nothing. Mrs. Jones’ conclusion is nothing more than surmise and would not support a jury finding in this regard.

“[A] party resisting summary judgment, in addition to coming forward with evidence which is sufficient to create a genuine issue of material fact, must present some credible warrant for its admissibility.” Wilson v. Nichols, 253 Ga. 84, 86 (3) (316 SE2d 752) (1984). No such warrant is provided for Mrs. Jones’ assumption and there is no other linking evidence.

Ordinarily proximate cause is not appropriate for summary adjudication. North v. Toco Hills, 160 Ga. App. 116, 119 (286 SE2d 346) (1981). However, where plaintiffs rely on allegations and assumptions in the face of evidence to the contrary, summary judgment is proper.

Decided December 4, 1990

Rehearing denied December 13, 1990

McKenney & Froelich, William J. McKenney, David M. Kupsky, for appellants.

Richard Kopelman, Fain, Major & Wiley, Charles A. Wiley, Jr., for appellees.

“[L]andlord[s] owed the legal duty to [their] tenants to keep the premises in repair. OCGA § 44-7-13. Additionally, the landlord is responsible for damages arising from the failure to keep the premises in repair. OCGA § 44-7-14. However, in order to recover, a tenant is required to show not only that the landlord breached his statutory duty to keep the premises in repair, but that such breach was the proximate cause of [the] injury. Absent such cause-effect connection, plaintiff’s action would be lacking one essential element.” Brown v. RFC Mgmt., 189 Ga. App. 603, 604 (376 SE2d 691) (1988).

As in that case, so in this one, “[w]e find the evidence presented to the trial court establishes the absence of a causal relationship between the alleged acts of negligence of the . . . landlord [s] and the injuries incurred by the plaintiff tenant.” Ibid.

3. Defendants have pierced a necessary element of plaintiffs’ claim, that of causation. Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). Thus, summary judgment was proper and it is unnecessary to consider the remaining enumerations of error.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.

       The city was a co-defendant but obtained summary judgment due to plaintiffs’ failure to give the ante litem notice.


author: Cooper, Judge.

text:
    A90A1513.
    FLOURNOY v. AKRIDGE et al.
    (400 SE2d 649)
   Cooper, Judge.

Appellant, a state employee with the Department of Community Affairs (the “Department”), was terminated from his position in 1985. Appellant had worked in the Department since 1982 and had been a state employee for over ten years. Upon his termination, appellant filed a complaint with the State Personnel Board. After a hearing before a hearing officer at which witnesses testified for both appellant and appellees, the hearing officer made extensive findings of fact and conclusions of law and determined that there was sufficient cause for the dismissal of appellant under the rules of the State Personnel Board. The State Personnel Board upheld the decision of the hearing officer and adopted the officer’s findings and conclusions. Appellant did not appeal the officer’s or the Board’s decisions to the superior court, but thereafter filed this civil suit in superior court alleging violations of 42 USC § 1981 and 42 USC § 1983 and Title VII of the Civil Rights Act. The appellees’ first motion for summary judgment was granted by the trial court, on the grounds that state courts did not have jurisdiction over the claims. This court affirmed the judgment on the Title VII claims and reversed as to the 1981 and 1983 claims. Flournoy v. Akridge, 189 Ga. App. 351 (375 SE2d 479) (1988). In the trial court, appellant has pursued only his Section 1983 claims against appellees as individuals, alleging that he was terminated because of his race, his apolitical status and the exercise of his First Amendment rights to freedom of speech. Appellees again moved for summary judgment and the trial court again granted appellees’ motion on the freedom of speech issue only, finding that the employer’s interests in performing public services outweighed the appellant’s speech interests and that the appellees were protected from suit under the qualified good faith immunity applicable to government officials performing discretionary functions. In support of their second motion for summary judgment, appellees submitted a Statement of Material Undisputed Facts which incorporated by reference portions of the Statement of Material Undisputed Facts which appellees had submitted with their first motion for summary judgment. These portions merely set forth, as exhibits to the Statement, the decisions of the hearing officer and the State Personnel Board, and do not contain an independent recitation of the facts. In connection with the first motion for summary judgment, appellant filed a Response to appellees’ Statement of Material Undisputed Facts in which appellant did not dispute the facts as stated by appellees. However, in connection with the second motion for summary judgment, appellant submitted an affidavit in which he denied significant factual assertions of appellees and denied several of the significant findings of fact made by the hearing officer as to the manner in which appellant communicated with his supervisors and the substance of that communication. It is the second grant of summary judgment on the free speech issues that is before us on appeal and for the reasons stated herein, we reverse.

1. Appellant first asserts that the trial court erred in making findings of fact based on the record in the case when appellant disputed the factual findings of the hearing officer as to the manner in which he communicated with his supervisors. Appellant therefore asserts that there are material facts in dispute and the grant of summary judgment was in error. We agree with appellant’s contentions. “ ‘Summary judgment is appropriate where the moving party shows he is entitled to judgment as a matter of law and there is no genuine issue as to any material fact.'’ [Cit.]” (Emphasis supplied.) Centennial Ins. Co. v. Sandner, Inc., 193 Ga. App. 253 (1c), 254 (387 SE2d 443) (1989). Contrary to appellees’ assertions, the facts in the instant case are not undisputed. Appellant’s response to appellees’ first Statement of Material Undisputed Facts is not an admission of any of the substantive facts as found by the hearing officer, but merely acknowledges that the exhibits attached to the statement are in fact the decisions rendered. The affidavit submitted by appellant in response to appellees’ second motion for summary judgment clearly disputes the facts as asserted by appellees, and the only support appellees submit for their motion is the hearing officer’s decision. The hearing officer was entertaining a state administrative claim and the case before us is based upon an entirely separate cause of action grounded in the federal statute. The factfinding process in the administrative procedure was geared toward proof of the elements of the administrative cause of action and was not necessarily the same factfinding process necessary to a full and proper litigation of appellant’s Section 1983 claims. Therefore, we determine that we are not bound to accept the hearing officer’s findings of fact as undisputed, and in light of the opposing affidavit submitted by appellant, we conclude that appellees have not met their burden on the motion for summary judgment.

We are aware that in a different context, involving a different combination of forums, a federal court will give preclusive effect to state administrative findings in a Section 1983 action brought in federal court, when those findings have been affirmed by the state courts under the “any evidence” standard. See Gorin v. Osborne, 756 F2d 834 (11th Cir. 1985). In the instant case, our state courts have not had the opportunity to review the hearing officer’s findings on direct appeal, and in the absence of such review, we do not find this federal precedent persuasive. Further, we do not feel that our conclusion is in conflict with the United States Supreme Court decision of University of Tennessee v. Elliott, 478 U. S. 788 (106 SC 3220, 92 LE2d 635) (1986) in which the court held that federal courts must give an administrative agency’s factfinding the same preclusive effect that it would be given in the state’s courts when the agency is “ ‘acting in a judicial capacity [and] resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate. . . .’ [Cit.]” Id. at 799. First, the instant case does not involve the relationship between federal and state courts. Secondly, as we have previously stated, the factfinding process in a Section 1983 action is unique to the cause of action such that the appellant did not have the opportunity to litigate necessary facts and issues to that claim in an administrative hearing geared toward an entirely separate cause of action.

2. We find a genuine issue of material fact in this case and reverse the grant of summary judgment to appellees. Consequently, it is unnecessary for us to review the remaining legal arguments of appellant.

Decided November 26, 1990

Rehearing denied December 13, 1990

Rumsey & Ramsey, Penelope W. Rumsey, for appellant.

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, for appellees.

Judgment reversed.

Banke, P. J., concurs. Birdsong, J., concurs in judgment only.


author: Deen, Presiding Judge.

text:
    A90A2343.
    HULETT v. THE STATE.
    (400 SE2d 366)
   Deen, Presiding Judge.

Appellant was tried and convicted of aggravated assault, simple battery and criminal trespass. In this out-of-time appeal, appellant claims that his trial counsel provided ineffective assistance. Held:

1. “ ‘In every matter coming to this court we are required to examine the record to make certain that we possess jurisdiction. (Cits.) . . . The timely filing of a notice of appeal in accordance with the statutory requirement is essential to confer jurisdiction upon an appellate court. (Cit.)’ . . . However, this court for proper reasons will entertain an out-of-time appeal.” Moore v. State, 176 Ga. App. 882, 883 (339 SE2d 271) (1985). The trial court granted the defendant’s oral motion for an out-of-time appeal. The record on appeal contains no transcript of evidence presented to support the motion. “[A]bsent a transcript in the record demonstrating an appellant’s failure to present evidence to support the trial court’s order, this court is required to assume the trial court’s grant of the out-of-time appeal was proper. [Cits.]” Odister v. State, 191 Ga. App. 898 (383 SE2d 371) (1989).

2. Appellant claims that his trial attorney failed to provide him with effective assistance during the preparation for and trial of the case. This issue was not raised in the trial court. Appellate counsel did not represent the defendant at trial. The record does not reflect the date on which appellate counsel undertook this case, although the record does show that following the June 8, 1990, entry of judgment on the verdict, appellate counsel filed an application for sentence review on behalf of appellant on July 5, 1990. Thereafter, on July 12, 1990, appellate counsel’s motion for an out-of-time appeal was granted. No motion for a new trial was filed by trial or appellate counsel.

In appropriate cases claims for ineffective assistance of counsel are remanded to the trial court for an evidentiary hearing. Smith v. State, 255 Ga. 654 (341 SE2d 5) (1986). However, in determining whether the claim should be remanded we must first decide whether the claim was raised “at the earliest practicable moment.” Id. at 656; Thompson v. State, 257 Ga. 386, 388 (359 SE2d 664) (1987). Here the record shows that appellate counsel represented appellant at least three days before the expiration of 30 days from the entry of judgment on the verdict. Four days after appeal rights expired appellate counsel obtained an order from the trial court granting an out-of-time appeal. At no time before initial appeal rights expired, or within the 30-day extension following the grant of the out-of-time appeal, did appellate counsel raise the effectiveness issue in the trial court. Under these circumstances we find the ineffectiveness of counsel claim was not raised “at the earliest practicable moment”; therefore the issue has been waived. Ponder v. State, 194 Ga. App. 446, 450 (390 SE2d 869) (1990); White v. State, 192 Ga. App. 703 (386 SE2d 56) (1989); Smith v. State, 192 Ga. App. 246, 247 (384 SE2d 451) (1989) (physical precedent only); see also Huff v. State, 191 Ga. App. 476 (382 SE2d 183) (1989).

Decided December 4, 1990

Rehearing denied December 13, 1990.

Neil A. Smith, for appellant.

Michael H. Crawford, District Attorney, E. Jay McCollum, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, J., concurs. Beasley, J., concurs in Division 2 and in the judgment.


author: Banke, Presiding Judge.

text:
    A90A1257.
    CONYERS TOYOTA, INC. v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY.
    (400 SE2d 662)
   Banke, Presiding Judge.

This is the second appearance of this case in this court. Willie J. Redmon and the children of Lorene Redmon (“plaintiffs”), who are not parties to this appeal, filed a wrongful death action against the appellee, Southern Bell Telephone & Telegraph Company, as well as Georgia Power Company and others, to recover for the loss of Mrs. Redmon in an accident which occurred when the Redmons’ car struck a utility pole guy wire which had fallen across the highway. In addition, Mr. Redmon filed a separate action to recover for his own personal injuries sustained as a result of the accident. Southern Bell asserted a cross-claim for contribution against the appellant, Conyers Toyota, Inc., after its investigation revealed that a vehicle on Conyers Toyota’s premises might have hit the guy wire. The plaintiffs then amended their complaints to name Conyers Toyota as a defendant. A few days before the scheduled trial date, Southern Bell and Georgia Power entered into a settlement agreement with the plaintiffs whereby the latter agreed to dismiss all claims against all parties in return for $650,000. Pursuant to a pre-existing “joint use agreement” between them concerning their respective obligations for claims arising from their shared use of utility poles, Georgia Power paid Southern Bell half the amount of this settlement, and Southern Bell remitted the full amount to the plaintiffs. The case thereafter proceeded to trial on Southern Bell’s contribution claim against Conyers Toyota, resulting in a verdict in favor of Conyers Toyota. However, that outcome was reversed in Southern Bell Tel. &c. Co. v. Conyers Toyota, 190 Ga. App. 792, 793 (380 SE2d 296) (1989). The case was then retried, resulting in a verdict against Conyers Toyota for $325,000.

On the night the accident occurred, the appellant had been engaged in transferring a group of used cars from one lot to another; and one of its employees, Lancaster, had obtained from his supervisor permission to enlist the assistance of his roommate in carrying out this operation. There was evidence that the roommate, Michael Adams, moved at least one vehicle but was not paid by the appellant for his efforts. As Adams was attempting to exit the appellant’s premises after the work was completed, his car struck and severed the utility pole guy wire, causing the wire to fall across the adjacent highway, where it was struck by the Redmons’ vehicle only a few seconds later. There was evidence that the guy wire had previously been struck by other vehicles on the appellant’s lot but that Southern Bell and Georgia Power had not been notified of these accidents. There was also evidence that Adams’ roommate, Lancaster, had told his supervisor that Adams had hit the wire and that the supervisor had instructed him and his fellow employees not to reveal this information to anyone but to tell people they had been inside the building when the accident occurred. Held:

1. The appellant contends that the trial court erred in excluding evidence of Georgia Power’s $325,000 contribution to the $650,000 settlement reached with the plaintiffs, arguing that if the jurors had been allowed to consider this evidence, they might have concluded that there were two additional tortfeasors rather than just one, with the result that they might have returned a verdict against it for one-third rather than one-half the total settlement amount. In Williams Bros. Lumber Co. v. Anderson, 210 Ga. 198 (78 SE2d 612) (1953), the Georgia Supreme Court held that where a partnership is assessed liability for contribution, it is to be treated as a single entity regardless of the number of partners composing it. See also Eidson v. Maddox, 195 Ga. 641 (24 SE2d 895) (1943); Wold v. Grozalsky, 14 NE2d 437 (N.Y. 1938). As it is apparent without dispute from their “joint use agreement” that Southern Bell and Georgia Power were acting as partners or joint venturers with respect to their use and maintenance of the utility pole, and as their alleged negligence did not consist of separate and distinct acts or omissions but of their joint maintenance of a single unsafe condition, we conclude that they were required as a matter of law to be treated as a single entity with respect to their liability in this matter, with the result that the evidence concerning the contribution made by Georgia Power to the settlement was properly excluded as irrelevant.

2. The appellant contends that the trial court erred in refusing to charge the jury that in order for it to be considered vicariously liable for Adams’ alleged negligence under the doctrine of respondeat superior, it must have controlled or retained the authority to control the time, manner, and method of his work, and his act of alleged negligence must have occurred within the scope of his employment. A review of the transcript reveals that the court’s charge adequately covered these legal principles. Accordingly, this enumeration is without merit. See generally Petkas v. Grizzard, 253 Ga. 407, 408-409 (321 SE2d 323) (1984).

3. The appellant contends that the trial court erred in excluding certain expert opinion testimony by which it sought to prove that the combined negligence of Southern Bell and Georgia Power was the sole proximate cause of the accident. The witness in question had a Ph.D. in engineering with a major concentration in safety, a background which, according to the appellant, enabled him to distinguish between those risks which only a trained engineer could perceive and those which could also be perceived by a lay person. He testified without objection that the guy wire in question should not have been located within the paved area of the parking lot and that because it was, it “represented a Class I hazard,” which he characterized as “a classification that would lead to a multiple fatality and death.” However, when the appellant sought to elicit from him testimony to the effect that Georgia Power and Southern Bell were in a position to appreciate the hazard due to the nature of their business and the engineering backgrounds of their employees but that the appellant’s employees were not, the appellee objected; and the trial judge sustained the objection, ruling that the average person’s understanding and appreciation of the hazards presented by guy wires and power lines was not a proper subject of expert testimony under the circumstances of this case. As such opinion testimony would not have concerned a matter beyond the ken of the ordinary juror and would have called for speculation from the witness, we hold that it was properly excluded. See Smith v. State, 247 Ga. 612 (277 SE2d 678) (1981); State v. Oliver, 188 Ga. App. 47, 50 (372 SE2d 256) (1988); Bankers Health &c. Ins. Co. v. Fryhofer, 114 Ga. App. 107 (150 SE2d 365) (1966).

4. The appellant contends that the trial court erred in denying its motion for a directed verdict to the effect that the maximum amount of its liability to Southern Bell would be one-sixth of the $650,000 settlement, or $108,333.33, representing the difference between the one-third share owed by each of the three tortfeasors (i.e., the appellant, Southern Bell, and Georgia Power) and the $325,000 actually expended by Southern Bell in payment of the settlement. Based on our holding in Division 1 that Southern Bell and Georgia Power were required to be treated as a single unit with respect to their liability in this matter, we find this enumeration of error to be without merit.

5. The appellant contends that the trial court erred in charging the jurors that they could consider whether it had knowledge of any prior occurrences similar to that which caused the injuries in this case. As previously indicated, there was evidence that the guy wire in question had been hit by other vehicles on the appellant’s lot, and it was also shown that the appellant had made efforts in the past to guard against the recurrence of such accidents by parking cars around the guy wire and warning customers to avoid it. The appellant contends that the charge in question was nevertheless erroneous, both because the guy wire had not snapped on any of these prior occasions and because the charge failed to take into account the effect of similar knowledge on the part of Southern Bell.

Ordinarily, evidence of similar acts or omissions is not admissible to establish that an alleged tortfeasor was negligent on another, wholly separate occasion. However, “[w]here evidence of a prior similar accident tends to show condition and knowledge of that condition, the evidence is admissible. [Cits.] All that is required is that the prior accident be sufficient to attract the owner’s attention to the dangerous condition which resulted in the litigated accident. [Cit.]” Pembrook Mgmt. v. Cossaboon, 157 Ga. App. 675, 677 (278 SE2d 100) (1981). In the prior appearance of this case, we held that it could be inferred'from the evidence in question “that Conyers Toyota knew or should have known of the alleged hazard presented by the guy wire. . . .” Southern Bell Tel. &c. Co. v. Conyers Toyota, supra, 190 Ga. App. at 795. We must therefore reject the appellant’s contention in the present case that the prior incidents were not sufficiently similar to be considered for that purpose. With regard to the appellant’s complaint that the charge failed to take into account the existence of similar knowledge on the part of Southern Bell, there was no evidence that Southern Bell was aware of the accidents in question, and its liability was in any event admitted. Accordingly, we find this enumeration of error also to be without merit.

Decided November 28, 1990

Rehearing denied December 17, 1990

Fain, Major & Wiley, Donald M. Fain, G. Keith Richardson, for appellant.

Kilpatrick & Cody, Alan R. Perry, Jr., Matthew H. Patton, James F. Bogan III, for appellee.

6. The appellant contends that the court erred in charging the jury that an agency relationship may exist when a business expressly procures someone to do something for the benefit of the business, regardless of whether that person receives monetary compensation. The appellant’s counsel conceded at trial that this charge was correct as an abstract principle of law but objected to it on the ground that it was expressed “in sort of an argumentative way.” Finding nothing argumentative about the charge, we hold that this objection was properly overruled.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.