text:
    73096.
    HEPNER v. SOUTHERN RAILWAY COMPANY.
    (356 SE2d 30)
   Beasley, Judge.

Plaintiff Hepner appeals from the grant of defendant Southern Railway Company’s motion for summary judgment. Hepner brought his complaint under the terms of the FELA (Federal Employers’ Liability Act), 45 USCA § 51, alleging he was an employee of Southern; that while in the performance of his duties, loading frog plates on the bed of a truck, he suffered severe and debilitating pain in his back. His injuries were alleged to have resulted from Southern’s negligence caused by Southern’s employees, or by reason of defect or in Southern’s failing to provide Hepner with reasonably safe equipment to perform the work, or by negligent failure of Southern to adequately supervise the manner and conditions of the work and labor, or by Southern’s negligent failure to provide a reasonably safe place for Hepner to work. The complaint alleged Hepner suffered permanent injury to his back for which damages were sought, including pain and suffering, loss of earnings, loss of earning capacity in the future and expenses for medical treatment.

Southern answered and after discovery moved for summary judgment. The context out of which this controversy arose is hereafter summarized.

Hepner was a member of a track maintenance gang composed of a foreman and two co-workers. They drove to Culpepper, Virginia, and were instructed by the foreman to load a stack of frog plates onto the truck. The foreman then went into the office and remained absent while the three workers loaded the truck. Frog plates weigh between 30 and 40 pounds each. The workers began with the one on the top of the stack and as the truck became filled they started to lift the frog plates over their heads and throw them further up in the truck. At the bottom of the pile the frog plates were difficult to pick up and Hepner used his toe to raise one sufficiently to obtain purchase for lifting. He felt a “pulling” in his back while coming up with a frog plate — “I was lifting with my legs.” He had not reached a full upright position. Although he had received no training specifically as to lifting frog plates, Hepner had been instructed as to the proper method for lifting, i.e., using his legs, and was using that method. Hepner told his co-workers that it felt like “I pulled something in my back.” After loading, the team drove 15 miles to Orange, Virginia, where the frog plates were unloaded. At this time Hepner also felt pain and told his co-workers, but not his foreman, that he hurt his back. Hepner continued to work for about six weeks until in May the pain became such that he could not continue, at which point he notified the assistant track supervisor of Southern that his back was hurt but did not tell him it was a job injury.

A railroad company is not an insurer in a FELA case. Seaboard Coast Line R. Co. v. Thomas, 125 Ga. App. 716, 719 (188 SE2d 891) (1972). What the carrier must do is exercise reasonable care in view of the existing circumstances. Wilkerson v. McCarthy, 336 U. S. 53, 61 (69 SC 413, 93 LE 497) (1949). What constitutes negligence in a particular situation is determined by common law rules as interpreted by federal decisions. Urie v. Thompson, 337 U. S. 163, 174 (69 SC 1018, 93 LE2d 1282) (1949). The carrier is required to take precautions commensurate with danger inherent in the situation and to exercise ordinary care proportionate to the consequences that might be reasonably anticipated from neglect. Harrison v. Mo. Pacific R. Co., 372 U. S. 248, 249 (83 SC 690, 9 LE2d 711) (1963); Urie, supra at 179. The railroad has a continuing and nondelegable duty to provide its employees with safe working conditions. Shenker v. Baltimore &c. R. Co., 374 U. S. 1, 7 (83 SC 1667, 10 LE2d 709) (1963); Southern R. Co. v. Welch, 247 F2d 340 (6th Cir. 1957).

The railroad must take all necessary and reasonable precautions to prevent injury to its employee when put on notice of his condition. Dennis v. Denver &c. R. Co., 375 U. S. 208, 209 (84 SC 291, 11 LE2d 256) (1963). Such notice may be either actual or constructive. Shenker, supra, 374 U. S. 1, 8; Georgia Southern &c. R. Co. v. Meeks, 110 Ga. App. 143, 144 (137 SE2d 919) (1964). “Constructive notice is information or knowledge of a fact imputed by law because the fact could have been discovered by proper diligence and the situation was such as to cast upon a person the duty to inquire into it.” Hamilton v. Edwards, 245 Ga. 810, 811 (267 SE2d 246) (1980). See Golden v. Nat. Life &c. Ins. Co., 189 Ga. 79, 86 (5 SE2d 198) (1939). A comprehensive version of the test to determine a railroad’s liability is found in Rogers v. Mo. Pacific R. Co., 352 U. S. 500, 506-8 (77 SC 443, 1 LE2d 493) (1957): “Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities . . . The burden of the employee is met, and the obligation of the employer to pay damages arises, when there is proof, even though entirely circumstantial, from which the jury may with reason make that inference.” Accord Gallick v. Baltimore & Ohio R. Co., 372 U. S. 108, 116 (83 SC 659, 9 LE2d 618) (1963).

Southern argues that there was no evidence that Hepner’s injury resulted from its negligence. Reliance is placed upon this court’s decision in Brooks v. Southern R. Co., 178 Ga. App. 361, 362 (343 SE2d 143) (1986) where the majority opinion recognized that the U. S. Supreme Court has upheld liability involving lifting. See Stone v. New York &c. R. Co., 344 U. S. 407, 409 (73 SC 358, 97 LE 441) (1952) which pointed out: “The likelihood of injury to men pulling or lifting beyond their capacity is obvious.” Nevertheless, this court made the distinction that “[b]efore an employer may be held negligent and thus liable under the Federal Employers’ Liability Act ... it must be shown that the employer knew or had reason to know that the employee was in a position of pulling or lifting beyond his capacity.”

Southern urges the following points: 1) Frog plates are relatively “light,” and there is no proof that Southern knew Hepner was lifting beyond his ability. 2) The evidence did not establish that the foreman needed to be constantly supervising the work, but if his absence could be considered as negligence it was of no consequence. The record shows Hepner was lifting properly when he felt the “pull,” and there was nothing the foreman, even if present, could have done. Thus, Hepner’s injury did not arise from any negligence on Southern’s part.

In order for Hepner to recover, the jury must be able to answer affirmatively a series of questions which may be viewed as links necessary to forge a chain of negligence. On summary judgment, Southern need sever but one link by uncontradicted proof to absolve itself from liability. While the chain may be approached from either end a natural presentation of the questions which arise may be posited as follows. Was there a duty to supervise the employee while working? If so, could proper supervision have served to prevent the injury? Or, posed another way, did the failure to supervise contribute to the events leading to the injury here? Was an improper lifting technique used? If so, was the injury, at least partially, a result of such lifting or did it occur solely from utilization of proper lifting methods?

1. Southern failed to establish that a jury would have to give a negative answer to the first question.

Hepner introduced affidavits by a former foreman of Southern and a present foreman with Seaboard. The former Southern foreman, by affidavit and amendment thereto, affirmed: that he had supervised many crews assigned to perform heavy lifting, including frog plates; that it was Southern’s policy for a foreman not to leave his crew to attempt a job unsupervised, and a foreman should always supervise laborers attempting to lift heavy objects because of the possibility of injury; that when he supervised laborers lifting heavy objects, including frog plates, he sought to insure proper manpower, lifting methods, machinery and allocation of lifting responsibility. The Seaboard foreman basically reiterated what was stated by the other foreman, relating that lifting heavy objects poses a high risk of injury to laborers; that injuries result from unsupervised lifting due to improper lifting methods, failure to allocate lifting responsibility, improper utilization of machinery, or inadequate manpower.

An affidavit may be considered even if conclusions are intermingled with facts. Planters Rural Tel. Co-op v. Chance, 108 Ga. App. 146, 147 (2) (132 SE2d 90) (1963); Vickers v. Chrysler Credit Corp., 158 Ga. App. 434, 440 (4) (280 SE2d 842) (1981). Furthermore, opinion evidence by the nonmoving party can be sufficient to preclude an award of summary judgment. Scott v. Owens-Ill., 173 Ga. App. 19, 22 (2) (325 SE2d 402) (1984). Contrary to Southern’s assertions, the affidavits are not invalid or immaterial. Manning v. A. A. B. Corp., 223 Ga. 111, 116 (153 SE2d 561) (1967). See Logan v. American Bankers &c. Co., 168 Ga. App. 647, 649 (310 SE2d 263) (1983). They provide a basis for a jury to consider whether the failure to properly supervise the loading process was negligent.

2. The next problem centers on what proper supervision might have accomplished. Hepner stated that towards the end of the loading process he and his co-workers were lifting frog plates above their heads. A jury would be authorized to find that lifting thirty to forty-pound frog plates above the head and throwing them on the truck was not a proper method of lifting. Was the railroad by any manner or means in complicity with this procedure? A present, supervising foreman might have ascertained the danger of lifting above one’s head and designated suitable alternate means of accomplishing the loading.

In his absence, may the railroad absolve itself of any knowledge? No, for knowledge may be either actual or constructive. The affidavits state that Southern’s foreman had a duty to supervise. If that duty had been fulfilled, the foreman would have been apprised of the means used to load the truck. Having such duty, there is no escape from the information available had the duty been met. Thus a jury could find the failure to supervise resulted in improper lifting procedures which might have been forestalled by proper supervision and instruction.

3. Crucial to a determination of whether the summary judgment was properly granted is Southern’s contention that the evidence established Hepner was injured while lifting the frog plate properly and thus there could be no negligence on its part. It is true that Hepner testified that he felt a “pulling” while not totally erect and lifting with his legs. However, on summary judgment with the burden on defendant to establish the absence of a material fact, this does not pinpoint the injury as arising solely from proper lifting methods. Back injuries do not always occur spontaneously but may arise from continued abuse, culminating in pain and disability. The actual injury could have arisen from those acts which constitute improper lifting with only the results manifesting themselves during a time of proper lifting. A jury should determine when, and as a result of what actions, the injury occurred. Bailey v. Central Vt. R., 319 U. S. 350, 353 (63 SC 1062, 87 LE 1444) (1943).

While Southern’s showing may have dented the links, the chain remains intact. For on none of those points does the evidence of record demand a finding for Southern. It was therefore error to grant its motion for summary judgment.

Judgment reversed.

Deen, P. J., and Benham, J., concur.

On Motion for Rehearing.

Southern raises Celotex Corp. v. Catrett, 477 U. S. — (106 SC 2548, 91 LE2d 265) (1986), as requiring a different result and argues that we must adopt the reasoning of the highest court of our land. Catrett, interpreting Rule 56 of the Federal Rules of Civil Procedure, holds that where the nonmoving party has the trial burden of proof, the party moving for summary judgment discharges its burden of initially showing the absence of any genuine issue of material fact by pointing out the absence of evidence to support the nonmoving party’s case. Thus, the movant need not support its motion with proof tending to negate the existence of the other party’s claim.

This is contrary to the Georgia cases which have construed what is now OCGA § 9-11-56 since its inception. Nevertheless, it is urged that we are compelled, or should be persuaded, to adopt the different theory of Catrett. This argument in part ignores the fundamental principles of federalism. The United States Supreme Court passed only upon Federal Rule 56. Even if OCGA § 9-11-56 contained identical language, which it does not, we are not required to construe it in like manner. We would be bound only if it found our rule constitutionally deficient. Absent such restraint, we are free to construe our statutory language as the General Assembly intended, keeping in mind the historical perspective of our laws.

We are not compelled and are not persuaded to change our traditional approach to summary judgment. This resolution is fortified by language in our rule not found in its federal counterpart. After reciting that judgment should be rendered if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law, this precautionary admonition follows: “but nothing in this Code section shall be construed as denying to any party the right to trial by jury where there are substantial issues of fact to be determined.” OCGA § 9-11-56 (c). Until the Georgia Supreme Court holds otherwise, the best way to preserve a party’s fundamental right to a jury trial is to require the moving party to negate by proof an essential element of the nonmoving party’s claim. See, e.g., Henderson v. Atlanta Transit System, 133 Ga. App. 354 (210 SE2d 845) (1974); Westinghouse Elec. Co. v. Williams, 173 Ga. App. 118, 122 (325 SE2d 460) (1984).

In a final effort, Southern contends that because this is a FELA case we must apply federal interpretation and thus Catrett. Southern espouses the well-established maxim that all matters of substantive law are controlled by the FELA as construed by the federal cases. It then relies upon cases holding that in actions brought under federal statutes the federal courts, and not state courts, establish the burden of proof. See Central Vermont R. Co. v. White, 238 U. S. 507 (35 SC 865, 59 LE 433) (1914). See also Garrett v. Moore-McCormack Co., 317 U. S. 239 (63 SC 246, 87 LE 239) (1942).

The cases cited by Southern treat the burden of proof on trial, but more precisely they deal with instances where a state court’s burden of proof or rule of evidence or practice tends to emasculate or limit the pervasive, beneficent effect of the FELA.

In Brown v. Western R. of Ala., 338 U. S. 294 (70 SC 105, 94 LE 100) (1949), the Supreme Court considered this court’s ruling which affirmed the trial court’s sustaining a demurrer in a FELA case and dismissing the claim. Brown v. Western R. of Ala., 77 Ga. App. 780 (49 SE2d 833) (1948). The Supreme Court prefaced its holding by observing that it had a duty to ascertain “whether petitioner has been denied a right of trial granted him by Congress.” Regardless of the state’s rules of practice and procedure, the “federal right cannot be defeated by the forms of local practice.” Id. at 296.

The policy reasons for federal supremacy were then set forth. “Strict local rules of pleading cannot be used to impose unnecessary burdens upon rights of recovery authorized by federal laws . . .” Thus, “the assertion of federal rights when plainly and reasonably made, is not to be defeated under the name of local practice.” Id. at 298-299. The Supreme Court then acknowledged that if it failed “to protect federally created rights from dismissal because of over-exacting local requirements for meticulous pleadings, desirable uniformity in adjudication of federally created rights could not be achieved.” Id. at 299.

The rationale focuses on state procedure which restricts a claimant’s rights under the FELA. The prohibition is as to the limitation or elimination of federally created rights. Dice v. Akron, Canton &c. R. Co., 342 U. S. 359, 361-2 (72 SC 312, 96 LE 398) (1951).

Decided February 20, 1987

Rehearing denied March 30, 1987

William R. Moseley, Jr., Donald F. Ruzicka, for appellant.

Edgar A. Neely, Jr., Eric J. Spitler, for appellee.

The converse is not true. A state procedure need not be as restrictive as the federal. An excellent exposition of this concept is found in New Jersey v. Portash, 440 U. S. 450, 454 (99 SC 1292, 59 LE2d 501) (1979), which recognized that the Supreme Court could review a federal question raised according to state procedures that would be considered inadequate to preserve the question under federal practice. See Lefkowitz v. Newsome, 420 U. S. 283, 288 (95 SC 886, 43 LE2d 196) (1975).

In sum, permitting a FELA claimant to reach a jury trial under our summary judgment rules does no violence to the principle that federal cases interpreting the substantive law control.

Motion for Rehearing en banc denied.

       “Under the Federal Employers’ Liability Act, an employee could be negligent 99.99 percent and the employer only 00.01 percent negligent and the employee would still be entitled to recover in proportion.” Atlantic Coast Line R. Co. v. Shed, 90 Ga. App. 766, 770 (1) (84 SE2d 212) (1954). Accord Southern R. Co. v. Cabe, 109 Ga. App. 432, 434, 438 (2) (136 SE2d 438) (1964).


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    73148.
    BROWN v. ELDER.
    (355 SE2d 740)
   Benham, Judge.

Appellant Brown and appellee Elder entered into a contract for the purchase of appellant’s home. In a separate agreement, appellant agreed to sell specified items of personalty to appellee. When appellee did not receive all of the items, he stopped payment on the check he had tendered. Appellant subsequently filed suit to recover the money, and appellee counterclaimed, alleging that appellant had fraudulently induced him to purchase real and personal property from her. A jury found for appellee and awarded him $5,000 damages. On appeal, appellant contends that the trial court erroneously denied her motion for new trial.

In addition to his claims concerning the items of personalty purchased by appellee but removed from the house by appellant or her agents, appellee contended appellant had wilfully misrepresented to him, to induce him to purchase the property, that the home’s swimming pool had been repaired; that the leak in the washroom had been remedied; and that the adjacent vacant lot sold with the home was suitable for building. After the closing, appellee found the swimming pool and washroom leak unrepaired and the adjacent lot unfit for building purposes due to the presence of sewer field lines.

Decided March 17, 1987

Rehearing denied March 30, 1987.

Robert B. Adams, for appellant.

Joseph T. Tuggle, Jr., for appellee.

1. Appellant maintains that appellee may not recover from her since he executed a “release of misrepresentation” at closing. By signing the document, appellee acknowledged that the realty company had made no warranty as to the condition of the house and improvements and that appellee had not relied on any representations or warranties of the realty company or its agents in making his decision to purchase the property. Appellant argues that she, as well as her realtor, was released by appellee’s execution of the document. We disagree. The very wording of the document reflects that appellee released the realtor and its agents from any liability for any misrepresentations they may have made to him. There was evidence at trial that the misrepresentations which were the basis of appellee’s counterclaim were made by appellant directly to appellee, not through the real estate agents involved. Thus, this was not a case of joint tortfeasors and a release of the agent did not act as a release of the principal. Compare Giles v. Smith, 80 Ga. App. 540 (56 SE2d 860) (1949), cited by appellant.

2. Citing the language in the release that appellee’s decision to purchase the property was based on his judgment and not on any representations made by the realty company, appellant contends that appellee failed to prove he relied upon appellant’s misrepresentations. Testimony at trial shows appellee “took the word” of appellant, to his detriment. The trial court did not err in denying appellant’s motion for new trial.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    73213.
    PRICE v. DEPARTMENT OF TRANSPORTATION.
    (356 SE2d 45)
   Beasley, Judge.

Sovereign Immunity. Hattie Price by her mother, Margaret Price, sued the Department of Transportation and others as a result of serious and disabling injuries sustained in a multi-automobile collision on May 10, 1983. It was alleged that Hayes lost control of his truck, it crossed the centerline and collided head-on with Price’s car, and the rear of her car was then struck by Thomas’ vehicle traveling behind her. Price’s car left the roadway, overturned, and fell twenty-two feet down the embankment. She alleged that the part of the roadway from which the car fell was an approach to a bridge and was situated on top of a high fill with steep sides, no guardrails, and no other obstruction to prevent vehicles from plunging down.

Defendants were jointly Hayes, Thomas, the contractors which participated in building the roadway, the City of Albany, Dougherty County, and DOT. The claim against DOT was for negligence and for creating a nuisance. DOT invoked sovereign immunity and, as requested, the court treated its amended motion to dismiss as one for summary judgment in accordance with OCGA § 9-11-12 (c), since affidavits were included. The motion was denied on the basis that DOT had waived the defense of sovereign immunity because its employees had been provided with liability insurance protection. DOT’S motion for reconsideration resulted in a grant of summary and final judgment in its favor.

On appeal, plaintiff submits the evidence shows that DOT employees were covered by insurance written through a private carrier during the time of the alleged negligent acts and omissions and by insurance through the Liability Trust Fund of the Department of Administrative Services on the date of injury.

1. Plaintiffs in pending litigation other than the case at bar have filed an amicus curiae brief, which DOT moves to dismiss. We deny that motion, Court of Appeals Rule 13, but we will not consider any portions of the amicus curiae’s argument which would constitute an attempted expansion of the original appeal. Shaver v. Aetna Fin. Co., 148 Ga. App. 740, 741 (252 SE2d 684) (1979).

2. The state constitution provides a qualified sovereign immunity: “Sovereign immunity extends to the state and all of its departments and agencies. However, . . . the defense of sovereign immunity is waived as to those actions for the recovery of damages for any claim against the state or any of its departments and agencies for which liability insurance protection for such claims has been provided but only to the extent of any liability insurance provided . . . .” Ga. Const. 1983, Art. I, Sec. II, Par. IX (a) (effective January 1, 1983). See Thigpen v. McDuffie County Bd. of Education, 255 Ga. 59 (335 SE2d 112) (1985).

Appellant claims that the alleged negligence of DOT, i.e., employees’ work on the design, planning, construction, and maintenance of the bridge approach, occurred in a period from January 1971 through January 1977. This period intersected the period when DOT’s employees were covered for potential errors and omissions by a $500,000 general liability insurance policy written through Admiral Insurance Company (July 1975 to July 1980) and the period when DOT employees’ coverage for errors and omissions was through the Liability Trust Fund of the Department of Administrative Services.

The argument is that although DOT did not carry an insurance policy naming the department itself rather than DOT employees as an insured, DOT can act only through its employees so that DOT was covered for the incident in question by liability insurance protection constituting waiver of constitutional sovereign immunity. The argument continues with the proposition that the trial court erroneously applied OCGA §§ 45-9-4 and 45-9-5 to her claims against DOT.

Section 4 authorizes the commissioner of administrative services . to purchase liability insurance or contracts of indemnity insuring or indemnifying officers, officials, or employees of departments of the state, such as DOT, against personal liability for damages arising out of or in connection with the performance of their duties, under a master policy or on a blanket coverage basis. Section 5 provided at the time of incident: “Nothing in this article shall constitute a waiver of the immunity of the state from any action.” Effective March 12, 1986, it was amended to clarify that: “The exercise of authority provided in this article shall not constitute the provision of liability insurance protection under Article I Section II, Paragraph IX of the Constitution.”

There is no evidence whatsoever of liability insurance covering DOT in its own name for personal injury claims made against it. Both the policy from a private carrier and the later policy from the Liability Trust Fund were purchased through the Department of Administrative Services in general for employees of all state agencies and departments, but not for departments. OCGA § 45-9-4, passed in 1977, would not have authorized the latter. Nor would its predecessor Code Ann. § 89-974. The named insureds under both policies were the employees of the State of Georgia. The state has agreed to be responsible via its purchase of insurance for the acts of its employees, but only to that extent. It has not waived the sovereign immunity of the department.

Appellant cites no authority for her argument that no distinction should be made between the entity DOT and DOT employees for the purpose of insurance coverage and waiver of sovereign immunity. See instead Cox Communications v. Dept. of Transp., 256 Ga. 455, 456 (2) (349 SE2d 450) (1986). The insurer insured the employees, not the department which employed them. This court has recognized the important distinction between a state agency or instrumentality and its employees in an analogous situation. See Hicks v. Shea, 149 Ga. App. 396 (254 SE2d 511) (1979). Moreover, the concept of waiver of governmental immunity in regard to an employee of the state or county, etc. is quite distinct from that of waiver of sovereign immunity by the state or one of its agencies. See Shuman v. Dyess, 175 Ga. App. 213, 215 (2) (333 SE2d 379) (1985). Price’s own choice of parties defendant belies her argument of such lack of distinction between department and department employee since she sought to name three DOT employees as defendants in the present suit independent of defendant-employer DOT.

Decided March 12, 1987

Rehearing denied March 30, 1987

Hilliard P. Burt, Terry J. Marlowe, for appellant.

Michael J. Bowers, Attorney General, Marion O. Gordon, First Assistant Attorney General, Roland F. Matson, Senior Assistant Attorney General, Beverly B. Martin, Assistant Attorney General, for appellee.

James E. Goodman, F. Clay Bush, Stephen H. Debaun, amici curiae.

There being no waiver of sovereign immunity by the department, the plaintiff is foreclosed from reaching the state treasury and defendant DOT was entitled to judgment in its favor as a matter of law.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.

       For another portion of this case, see Price v. Reeves Constr. Co., 181 Ga. App. 241 (351 SE2d 655) (1986).

       Prior to this, sovereign immunity provisions were found in Ga. Const. 1976, Art. VI, Sec. V, Par. I. A 1974 constitutional amendment was ratified authorizing the establishment of a State Court of Claims. Code Ann. § 2-3401. By that amendment, the doctrine of state sovereign immunity gained constitutional status. Clark v. State of Ga., 240 Ga. 188 (240 SE2d 5) (1977).


author: Benham, Judge. Beasley, Judge,

text:
    73336.
    LARSON et al. v. C. W. MATTHEWS CONTRACTING COMPANY, INC.
    (356 SE2d 35)
   Benham, Judge.

Appellants filed suit on April 26, 1984, against the Commissioners of Cobb County and John Doe, described as an unknown contractor who had done road work at the site of the automobile accident in which appellants were injured on June 24, 1982. On February 20, 1985, appellants amended their complaint to identify John Doe as C. W. Matthews Contracting Company, and appellee was served on February 26, 1985. Appellee sought and was granted summary judgment on the ground that the statute of limitation had expired and appellants’ failure to comply with OCGA § 9-11-15 (c) deprived them of the statute’s relation back feature.

1. Appellee, citing Clover Realty Co. v. Todd, 237 Ga. 821 (229 SE2d 649) (1976), maintains that appellants’ failure to obtain leave of court before filing their amendment adding appellee as a defendant violated OCGA § 9-11-21 and justified the trial court’s grant of summary judgment. OCGA § 9-11-21 requires an order of the court to drop or add parties; OCGA § 9-11-15 (a) and (c) permit an amendment changing the party against whom a claim is asserted without leave of court at any time before the entry of a pretrial order. “Where a complaint has been filed against one designated by a fictitious name . . . but no service on that defendant has been made prior to the running of the statute of limitation, and after the running of the statute it is desired to substitute the name of and serve the actual defendant, said substitution and service constitute ‘changing the party against whom a claim is asserted’ within the meaning of [OCGA § 9-11-15 (c)] . . .” Moulden Supply Co. v. Rojas, 135 Ga. App. 229, 231-32 (217 SE2d 468) (1975). The substitution or change of a party differs from the addition or deletion of a party. See A. H. Robins Co. v. Sullivan, 136 Ga. App. 533 (221 SE2d 697) (1975), and Coley Elec. Supply v. Colonial Eggs, 165 Ga. App. 108 (1) (299 SE2d 165) (1983). Inasmuch as the substitution of appellee for John Doe was not the addition of a party to the action, compliance with OCGA § 9-11-21 was not necessary. Compare Clover Realty, supra, where the plaintiff sought to add a party as a defendant.

2. The requirements of OCGA § 9-11-15 (c) must be met before appellants’ amendment substituting appellee for the party designated by a fictitious name in their complaint will relate back to the date of the complaint. See Moulden Supply Co. v. Rojas, supra. OCGA § 9-11-15 (c) provides that “[a]n amendment changing the party against whom a claim is asserted relates back to the date of the original pleadings if [the claim asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth in the original pleading], and if within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.” OCGA § 9-11-15 (c). It is undisputed that the claim asserted in the amended pleading arises out of the occurrence set forth in the original complaint. It is also undisputed that appellee did not become aware of the institution of the action by appellants until it received a letter from appellants’ attorney on October 4, 1984, four months after the expiration of the two-year statute of limitation for the commencement of a personal injury action. See OCGA § 9-3-33. Therefore, appellants’ substitution of appellee for John Doe did not relate back to the date of the filing of the original complaint, and the personal injury action filed by appellants against appellee was properly disposed of in favor of appellee. See Moulden Supply Co. v. Rojas, supra; Brer Rabbit Mobile Home Sales v. Perry, 132 Ga. App. 128 (207 SE2d 578) (1974); Sims v. American Cas. Co., 131 Ga. App. 461 (6) (206 SE2d 121) (1974).

Decided March 6, 1987

Rehearings denied March 30, 1987

Morgan M. Robertson, for appellants.

D. A. Mangerie, Toby B. Prodgers, for appellee.

3. Appellants argue that the four-year statute of limitation for injury to personalty (OCGA § 9-3-31) is applicable to their lawsuit. If it is, the prerequisites to effect the relation back portion of 9-11-15 (c) have been met since appellee received notice of the action prior to the expiration of the four-year period of limitation. Appellants alleged in their complaint that they were injured in an automobile accident and had suffered “severe injuries.” Construing, as we must, appellants’ pleading to serve their best interests (see Allrid v. Emory Univ., 166 Ga. App. 130, 132 (2) (303 SE2d 486) (1983)), and insofar as their allegations may be read as seeking damages from appellee for an injury to personalty (as distinguished from seeking damages for personal injury), appellants’ substitution of appellee for John Doe was timely under OCGA § 9-11-15 (c), and summary judgment was erroneously granted appellee on appellants’ allegation of injury to personalty.

Judgment affirmed in part and reversed in part.

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

Beasley, Judge,

concurring specially.

I concur fully in Divisions 2 and 3 but cannot concur in Division 1. The issue there decided was not raised or ruled on in the trial court but appears only in appellee’s brief, as an additional ground in support of summary judgment. Thus it does not present an issue for review and determination by this Court. Morris v. State, 179 Ga. App. 228, 229 (3) (345 SE2d 686) (1986); In re R. K. J., 179 Ga. App. 112, 113 (3) (345 SE2d 658) (1986).

I am authorized to state that Presiding Judge Deen joins in this special concurrence.


author: McMurray, Presiding Judge.

text:
    73416.
    BLANKENSHIP v. HOME DEPOT, INC.
    (356 SE2d 61)
   McMurray, Presiding Judge.

Plaintiff Blankenship tendered a check in the amount of $52.45 for merchandise purchased at the retail store of The Home Depot, Inc. (“Home Depot”). The check was returned unpaid and Home Depot initiated criminal prosecution against plaintiff for violating OCGA § 16-9-20. The resulting prosecution was nol prossed. Thereafter, plaintiff sued Home Depot for maliciously causing a warrant to be issued for her arrest without probable cause. Home Depot answered, denying the material allegations of the complaint, and subsequently filed a motion for summary judgment. The trial court granted summary judgment in favor of Home Depot and plaintiff now appeals. Held:

Decided March 17, 1987

Rehearing denied March 30, 1987

William V. Hall, Jr., for appellant.

Edward D. Buckley III, for appellee.

“OCGA § 16-9-20 (h) provides in relevant part: ‘Any party holding a worthless check or instrument and giving notice in substantially similar form to that provided in subparagraph (a) (2) (B) of this Code section shall be immune from civil liability for the giving of such notice and for proceeding as required under the forms of such notice . . .’ ” Wilson v. Home Depot, 180 Ga. App. 218, 219 (348 SE2d 588). In the case sub judice, it is not disputed that Home Depot sent plaintiff timely written notice substantially in the form provided in OCGA § 16-9-20 (a) (2) (B) and that plaintiff did not comply with that notice either as to time or amount. Consequently, Home Depot is immune from civil liability for proceeding against plaintiff for violating OCGA § 16-9-20.

Judgment affirmed.

Carley and Pope, JJ., concur.


text:
    73525.
    WESTERN BROADCASTING OF AUGUSTA, INC. v. WRIGHT.
    (356 SE2d 53)
   Benham, Judge.

Appellee, an attorney, was indicted and tried for conspiring to aid a client in evading payment of federal income tax. During the trial, after the prosecution had rested and appellee’s motions for mistrial had been denied, appellant broadcast a news report that appellee had been found guilty. In fact, he had not and was eventually acquitted of the charges against him. A jury trial of his subsequent defamation action against appellant resulted in a verdict in his favor of $25,000. In this appeal from the judgment entered on that verdict, appellant asserts three reasons its motion for directed verdict should have been granted. We affirm.

1. First, appellant urges that appellee is a “limited purpose public figure” who must prove actual malice by appellant before recovering for defamation. However, the record does not support that contention. Appellee’s participation in this matter was limited to his role as a defendant in a federal criminal prosecution. He never availed himself of opportunities to present his case informally through the news media and he did not make use of whatever notoriety was thrust on him by that prosecution to influence any public issue. Under the standard set out in Gertz v. Robert Welch, Inc., 418 U. S. 323 (94 SC 2997, 41 LE2d 789) (1974), and refined in Time, Inc. v. Firestone, 424 U. S. 448 (96 SC 958, 47 LE2d 154) (1976), and Wolston v. Reader’s Digest Assn., 443 U. S. 157 (99 SC 2701, 61 LE2d 450) (1979), appellee did not become a public figure by thrusting himself into the forefront of a public controversy in order to influence the resolution of the issues involved. Appellant was not, therefore, entitled to a directed verdict on that ground.

2. In its second enumeration of error, appellant contends that it was entitled to a directed verdict because the broadcast was protected by a conditional privilege which is not lost so long as it is “exercised in good faith and without malice.” WSAV-TV v. Baxter, 119 Ga. App. 185 (2) (166 SE2d 416) (1969). However, the statutory privilege referred to by this court in that case is one which protects “[f]air and honest reports of the proceedings of legislative or judicial bodies.” OCGA § 51-5-7 (4). This court has interpreted that privilege to require that the report be accurate. McCracken v. Gainesville Tribune, 146 Ga. App. 274 (3) (246 SE2d 360) (1978). Appellant’s report of appellee’s conviction cannot be considered to be accurate or even “substantially accurate” (see Morton v. Stewart, 153 Ga. App. 636 (2b) (266 SE2d 230) (1980)) so as to bring it within the protection of the privilege. There was no error in denying appellant’s motion for a directed verdict on that ground.

3. Finally, appellant argues that the damages sought by appellee are not compensable because of the U. S. Supreme Court’s ruling in Gertz, supra at 349, that “the States may not permit recovery of presumed . . . damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” However, we note that the Court went on to hold that “actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.” Id. at 350. Those were the damages sought by appellee and they were neither forbidden by Gertz, nor by Georgia law. See Melton v. Bow, 241 Ga. 629 (247 SE2d 100) (1978); Fuqua Television v. Fleming, 134 Ga. App. 731 (3) (215 SE2d 694) (1975). Appellant was not entitled to a directed verdict on this ground, either.

Decided March 17, 1987

Rehearing denied March 30, 1987

David E. Hudson, for appellant.

Mitchel P. House, Edward S. Sell III, for appellee.

Judgment affirmed.

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


text:
    73547.
    LONG et al. v. MARION.
    (355 SE2d 711)
   Beasley, Judge.

Appellants Long and Import Performance Centre, Ltd., brought an action against appellee Marion seeking to recover a sum owed under an agreement to repair appellee’s 1953 Bentley automobile (Count 1). The complaint also contained Counts (2 through 4) for false arrest and imprisonment, trespass and to recover punitive damages. Appellee’s answer denied the material averments of the complaint and also set forth a three-count counterclaim. Count 1 alleged appellants breached the contract to repair appellee’s Bentley. Count 2 was in the nature of trover (conversion) and sought recovery of certain automobile parts alleged to be in appellants’ possession. Count 3 alleged misrepresentations as to the services appellants would provide, and also violation of the Fair Business Practices Act. The counterclaim prayed for $5,770 for breach of contract; return of appellee’s parts to him; punitive damages for appellants’ intentional torts of conversion, fraud and deceit; treble damages and attorney fees.

Appellant Ferretti had been mentioned in Count 1 of the counterclaim but was not named as a defendant. Appellee moved to amend his counterclaim to include Ferretti as a defendant and also to make him a party. An order was subsequently entered permitting Ferretti’s addition as a party and directing that he be served. This was accomplished (although the legality of the service is one of the questions on appeal) and Ferretti filed an answer which recited: “Now comes William Ferretti having been improperly served with insufficient copies, and duly searching the clerks office for the superior court on the 18th day of March, 1985 was unable to locate documents joining same and files an answer and defenses to pleadings against Robert Long and Import Performance Centre, Ltd. to which attorney Robert Lipman, counsel for the plaintiff alleges William Ferretti has been joined.” His second defense was: “This court lacks personal jurisdiction over this defendant due to improper service.”

Ferretti’s attack on service was not a part of the pretrial order which was subsequently entered on December 13, 1985. After discovery the case was tried before a jury. The issues as to Counts 2 through 4 of appellants’ complaint were eliminated and the remaining issues were submitted to the jury by special verdict. The findings on the basic issue are here summarized. Appellee did not breach the contract, but appellants did, for which $3,800 was awarded. Appellants were guilty of fraud for which $6,000 was awarded. Appellee was entitled to recover his automobile parts. Appellants did not violate the Georgia Fair Business Practice Act. Litigation expenses were awarded to appellee in the amount of $17,000. Punitive damages for $20,000 were imposed on Long and Ferretti.

Appellants’ motion for new trial was overruled and this appeal followed.

1. Ferretti contends that he was illegally served by an unauthorized individual and that he was not served with all the pleadings, particularly with a copy of the amended counterclaim. Ferretti’s argument as to ineffective service is predicated on the fact that he was served by an individual who was an employee of the person formally appointed by the court to serve Ferretti. He relies on Townsend v. Williams, 170 Ga. App. 766 (318 SE2d 510) (1984) where we held that purported service by one not specially appointed by the court was without effect.

We do not reach this issue, however, since insofar as the record reveals it was not raised in the trial court. As pointed out in our statement of facts the only basis for lack of service contained in Ferretti’s answer was that he was served with insufficient copies. While he might have enlarged his attack that the court lacked personal jurisdiction due to improper service by adding the basis he now urges on appeal, the record is devoid of a showing that he did so. According to a colloquy which took place at the close of the evidence, Ferretti did raise an issue whether he was correctly served “at the time the jury was coming in”; the ground was not stated and it may have been the insufficient-copies ground, which was the only one specified in the proceedings. The trial judge overruled the objection on the ground that it came too late. The record is silent as to Ferretti having attempted to contend that service was accomplished by one without authority to do so.

“Grounds which may be considered on appeal are limited to those which were urged before the trial court.” Harrison v. Lawhorne, 130 Ga. App. 314, 318 (5) (203 SE2d 292) (1973). Also, the reviewing court will not impute a determination to the trial court which the record does not suggest. Georgia Power Co. v. Harrison, 253 Ga. 212, 215 (2) (318 SE2d 306) (1984). Thus, the only ground remaining concerns the failure to serve Ferretti with all the pleadings.

Where actual notice of a suit has been received by a defendant, no technical or formal objection should invalidate process. Brim v. Pruitt, 178 Ga. App. 321, 324 (342 SE2d 690) (1986). In the circumstances here, even if, all the pleadings were not originally given Ferretti at the time he was served, he had ample time to be thoroughly apprised of the claims against him and their rationale. Moreover, the issue as to service was not included in the papers comprising the pretrial order. In Georgia Power Co. v. O’Bryant, 169 Ga. App. 491, 493 (313 SE2d 709) (1984), where this court found defendant had waived its insufficiency of service of process defense it was held: “The linchpin of our conclusion is appellant’s failure to make any mention whatsoever of its service of process defense in the pretrial order in this case.”

We find no demonstrable error in the trial court’s refusal to sustain the attack on service.

2. Appellants contend the trial court erred in permitting them to be extensively cross-examined regarding their financial condition.

At the beginning of Ferretti’s cross-examination he was asked for an opinion of the value of his home. Objection was interposed on the ground the line of questioning was inadmissible and irrelevant “because no attempt of willful fraud has been proven.” That objection was overruled and no further objection was interposed to Ferretti’s continued testimony as to his finances. During cross-examination, Long was asked what his salary was. Before a response was given, counsel began a motion to withhold ruling on admission of the evidence until the court ruled on the sufficiency of evidence relating to bad faith or fraud. However, no ruling was made on the motion and the hearing, out of the jury’s presence, evolved into a hearing on motions for directed verdict. Afterward, Long’s finances were explored by a series of questions to which there was no objection.

Appellants now argue their finances were not admissible where recovery was sought for aggravated damages under OCGA § 51-12-5 citing Bob Maddox Dodge v. McKie, 155 Ga. App. 263, 264 (3) (270 SE2d 690) (1980), but their argument is confined to the bounds of their trial objections. We cannot consider grounds raised for the first time on appeal. Steverson v. Hosp. Auth. of Ware County, 129 Ga. App. 510, 513 (21) (199 SE2d 881) (1973); Holiday Homes v. Bragg, 132 Ga. App. 594, 597 (4) (208 SE2d 608) (1974). Conversely, where the basis urged on trial is neither enumerated as error or argued, it must be treated as abandoned. Smith v. State, 153 Ga. App. 862, 865 (5) (267 SE2d 289) (1980).

3. During the course of the instruction to the jury as to legal principles regarding fraud, the trial judge explained that one had to exercise diligence to ascertain the facts for himself, unless the jury found a confidential relationship existed. He then charged the statutory provisions concerning confidential relations (OCGA §§ 23-2-58 and 59). These were all correct statements of the law and there is no issue as to that. However, counsel for appellants did object because he thought “the confidential relationship aspect” was not involved in the case.

Normally, reading of statutory provisions, parts of which are applicable and parts of which are not, is not grounds for reversal where it does not appear that the inapplicable part was calculated to mislead the jury, erroneously affected the verdict or was prejudicial to the rights of the complaining party. Southern R. Co. v. Heaton, 61 Ga. App. 386, 387 (12) (6 SE2d 339) (1939); Atlanta, Birmingham &c. R. Co. v. Patterson, 75 Ga. App. 189, 195 (43 SE2d 177) (1947). See also Perry v. State, 1 Ga. App. 542 (1) (58 SE 60) (1907).

While we are inclined to agree that there was no issue of confidential relationship in this case, giving the definition and application of the term was not calculated to mislead the jury as to the true issues. Insofar as we have been apprised of nothing to indicate any contention or assertion that such relationship existed, we find that the charge was not harmful or prejudicial to appellants. While not condoning its use in this case, the charge as given served the purpose of clarifying to the jury the meaning of the term as used in the preceding portion of the instruction and would tend to show that there was no element of that relationship in the case.

We find that the instruction complained of could not have influenced the verdict against the complaining parties. See Rentz v. Collins, 51 Ga. App. 782, 783 (3) (181 SE 678) (1935); Parsons v. Grant, 95 Ga. App. 431, 436 (3) (98 SE2d 219) (1957); Davis v. State, 167 Ga. App. 701, 702 (1) (307 SE2d 272) (1983).

4. Appellants contend that appellee’s testimony as to the value of his vehicle was without the proper foundation and had no probative value.

“The owner of property is considered to be qualified to state his opinion as to value. [Cits.] ‘Opinion evidence as to the value of an item, in order to have probative value, must be based upon a foundation that the witness lias some knowledge, experience or familiarity with the value of the property ... or similar property and he must give reasons for the value assessed and also must have had an opportunity for forming a correct opinion.’ [Cit.]” Shadowood Assoc. v. Kirk, 170 Ga. App. 209, 211 (3) (316 SE2d 487) (1984). See OCGA § 24-9-66. Appellee related his knowledge and familiarity with classic type vehicles, described the condition of the vehicle and introduced photographs of the damage to the vehicle. Having given the basis for his opinion, the weight and credibility of the testimony was for the jury. Burch v. Lawrence, 150 Ga. App. 351, 352 (258 SE2d 35) (1979). Since the witness had an opportunity for forming a correct opinion, the evidence was sufficient for the jury’s consideration. See Johnson v. Rooks, 116 Ga. App. 394, 397 (1) (157 SE2d 527) (1967); Valley Coaches v. Streett, 160 Ga. App. 25 (286 SE2d 313) (1981). See also Kaplan v. Clark Co., 149 Ga. App. 780 (1) (256 SE2d 55) (1979).

5. Appellants contend that the jury’s award of $3,800 for breach of contract and $6,000 for fraud constitutes impermissible double damages. Although appellants did not object to the form of the verdict when it was returned, providing an opportunity for correction while the jury was still empaneled, they may still raise this issue on appeal. Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 277 (10) (329 SE2d 900) (1985) reversed an award of exemplary damages, holding: “This result obtains even though the parties failed, to object to the form of the verdict when it was returned, since the award . . . was improper as a matter of law.” Accord Chrysler Corp. v. Marinari, 177 Ga. App. 304, 306 (1) (339 SE2d 343) (1985).

In order to put this issue into its proper perspective we consider the two counts of the counterclaim as amended, one for breach of contract, the other for fraud.

The first count (contract) set forth: appellants agreed that appellee’s Bentley would be completely restored mechanically within approximately three months and would be garaged, protected and under cover during the time Long had it in his possession. Long represented to appellee that repairs were in progress and pursuant to the representation appellee forwarded $3,000 to Ferretti to obtain engine parts. In February 1982 appellee discovered appellants had breached the contract by failing to keep appellee’s car under cover and garaged, by failing to overhaul the engine and mechanical systems properly, by failing to repair the car within the time agreed, and by failing to perform the contract.

The fraud count alleged: in order to procure his business, appellants represented to appellee that the vehicle would be repaired and restored within a three-month period, that the repairs would be accomplished in a competent manner, and that appellants would keep the car garaged during the entire time it was in their possession. In order to induce appellee to advance $3,000 appellants represented that the car would be completely overhauled within a short time upon the immediate purchase of certain parts. Long represented that the car’s generator was overhauled and a particular radiator went with the vehicle. All the representations were false when made, known to be false by appellants and were made for the sole purpose of inducing appellee to remit money and rely thereon.

Where one is induced to enter into a contract by fraud, the defrauded party has an election either to affirm the contract and sue for damage resulting from the fraud or rescind the contract. Price v. Mitchell, 154 Ga. App. 523, 524 (268 SE2d 743) (1980); Wilhite v. Mays, 239 Ga. 31 (235 SE2d 532) (1977). One can pursue any number of inconsistent remedies prior to formulation and entry of judgment. UIV Corp. v. Oswald, 139 Ga. App. 697, 698 (229 SE2d 512) (1976). Thus, appellee was not required to elect his remedy prior to the submission of his case to the jury but would have to do so if inconsistent verdicts had been rendered. Rosenberg v. Mossman, 140 Ga. App. 694, 697 (231 SE2d 417) (1976); Waller v. Scheer, 175 Ga. App. 1, 5 (3) (332 SE2d 293) (1985).

Here appellee could not recover for both breach of contract and fraud if the fraud related purely to the inducement to enter into the contract. However, there were allegations and proof regarding fraud in obtaining money from the appellee. This involved matters other than those connected with obtaining appellee’s agreement to enter into the contract. Damages for that reason would not be duplicative of those for breach of contract. It is not clear that this is what happened. However, since a jury verdict should be sustained if possible, Georgia Farm &c. Ins. Co. v. Collins, 161 Ga. App. 149, 150 (2) (288 SE2d 106) (1982), an appellate court will construe the evidence and every presumption and inference in favor of the verdict. Gilman Paper Co. v. James, 235 Ga. 348, 350 (219 SE2d 447) (1975).

Since the damages here were not on their face improper as a matter of law, compare Anthony v. Anthony, 143 Ga. App. 691, 695 (240 SE2d 167) (1977), and appellants did not object regarding the imposition of double damages to the form of the verdict or after the verdict was returned (which might have clarified whether there were duplicate damages), see Kelley v. Austell Bldg. Supply, 164 Ga. App. 322, 324 (1) (297 SE2d 292) (1982), this enumeration of error reveals no reversible error.

6. Appellants contend there was no evidence to sustain the award of attorney fees because the attorney who testified, based on records kept by appellee’s former attorney, failed to testify the fees were reasonable and in addition considered time spent on other litigation.

Appellant’s reference to the record fails to reveal that any expenses other than those connected with the instant case were considered.

The attorney testified that the appellee was charged at the bottom of the rate range of the prevailing attorney fees in the county and that the hours expended were within the range of the reasonable number of hours which would have been utilized to prepare the case. This was sufficient evidence of the reasonableness of the attorney fees. Compare First Bank of Clayton County v. Dollar, 159 Ga. App. 815, 817 (4) (285 SE2d 203) (1981).

Decided March 12, 1987

Rehearing denied March 30, 1987

Eugene Novy, Penelope W. Rumsey, for appellants.

Richard E. Johnson, Noel H. Benedict, for appellee.

Judgment affirmed.

Deen, P. J., concurs. Benham, J., concurs in the judgment only.

       The term aggravated damage is preferable and will be used in this opinion. Community Fed. &c. Assn. v. Foster Developers, 179 Ga. App. 861, 862 fn. 1 (348 SE2d 326) (1986).


text:
    73573.
    INGRAM et al. v. PEACHTREE SOUTH, LTD.
    (355 SE2d 717)
   Beasley, Judge.

Plaintiffs appeal from the grant of defendant’s motion for summary judgment. The genesis of this appeal was a fire that occurred on defendant’s premises, then 175-177 Peachtree Street, in the late afternoon of July 15, 1981. Two of the four plaintiffs were firemen who were injured while fighting the blaze. They sought damages for the injuries they received, pain and suffering, medical expenses, loss of wages and permanent disability and impairments. The other two were the firemen’s wives, who sought damages for loss of consortium.

The two firemen, and another who was killed but is not involved in this appeal, responded to an alarm around 6:00 p.m. They entered the building and, on information as to location of the flame, walked upstairs to the third floor where they found a small trash fire. They went to a window and requested a booster hose to extinguish the then manageable flame. Before any action was taken the fire erupted into an inferno. Unable to escape, the firemen fell or jumped to the street below and suffered injuries.

Later investigation revealed the fire was caused by a vagrant who had used gasoline and wood pieces to fuel the flame. He was apprehended and convicted of arson.

After answering, defendant moved for summary judgment. There was extensive discovery, a large portion of which centered on the building’s condition and the knowledge of the respective parties. Plaintiffs adduced proof that the building had been vacant for several years, was poorly maintained, outside doors had been removed, windows were broken and the building had become a habitat for street people. There had been a small fire in the building some time prior to the July 15 fire. An earlier occupant had stored flammable materials on the premises, which had wooden floors. Defendant countered with testimony that the building had been maintained as required by the city code and fire inspectors; that, in any case, the plaintiffs as firemen had equal knowledge as to the condition of the building, a former fire and as to the prior storage of flammable materials on the premises.

After a hearing, the trial court ruled that the plaintiffs, as firemen, were owed a duty as licensees by the defendant. Finding the proof established no breach of that duty, the trial court entered judgment for defendant.

Plaintiffs argue that the trial court erred in casting firemen as licensees as a matter of law. They especially urge that firemen do not fit the definition of licensees as set forth in OCGA § 51-3-2, particularly (a) (3). Further, they contend the firemen’s rule is antiquated and should be abolished.

Georgia has adopted the position that a fireman’s status as to the landowner whose property he comes upon in order to fight a fire is that of a licensee. Todd v. Armour & Co., 44 Ga. App. 609(162 SE 394) (1931); Baxley v. Williams Constr. Co., 98 Ga. App. 662, 669 (106 SE2d 799) (1958); Abney v. London Iron &c. Co., 152 Ga. App. 238 (262 SE2d 505) (1979), affirmed by London Iron &c. Co. v. Abney, 245 Ga. 759, 760 (267 SE2d 214) (1980).

In view of the statutory language defining a licensee, it would perhaps be more appropriate to state, as does the Restatement of the Law of Torts (2nd ed.), § 345, p. 228, that firemen are sui generis but treated “on the same footing as licensees.”

In some jurisdictions firemen have been accorded the status of invitees. See Dini v. Naiditch, 20 Ill.2d 406 (170 NE2d 881) (1960). But this trend announced in Prosser, Torts (4th ed.), p. 398, has apparently almost extinguished itself, see Prosser and Keeton, Torts, (5th ed.), p. 432. Dini, predicted to be the wave of the future, has been severely limited by a rule which may be described as virtually universal. See Washington v. Atlantic Richfield Co., 66 Ill.2d 103 (361 NE2d 282) (1977). Basically, the principle is that while a fireman may recover for negligence independent of the fire, a landowner is not liable for negligence in causing the fire. As an oft-cited case holds, one “cannot complain of negligence in the creation of the very occasion for his engagement.” Krauth v. Geller, 31 NJ 270, 274 (157 A2d 129, 131) (1960). This has been extended to acts causing the fire which may be described as wilful and wanton. Hubbard v. Boelt, 28 Cal3d 480 (620 P2d 156, 158) (1980). BART v. Superior Court, 113 Cal. App. 3d 1018 (170 Cal. Rptr. 390, 391) (1980).

Under this authority the status of invitee or licensee, if pertinent at all, only comes into play in determining what duty is owed the fireman with regard to events extrinsic to the fire’s inception.

Although the Georgia cases have not formally adopted this rule, the clear tenor of the cases is its recognition. Our cases have dealt with defective conditions on or near the scene of the fire. It appears accepted that the cause of the fire itself is not relevant, the emphasis being upon whether the landowner kept the premises up to the standard of care owed to a licensee. If there was no breach of that duty there was no liability to a fireman.

“The owner or occupier of premises may not wilfully or wantonly injure a licensee. ‘Since his presence as a result of his license is at all times probable, some care must be taken to anticipate his presence, and ordinary care and diligence must be used to prevent injuring him after his presence is known or reasonably should be anticipated.’ ” Whittle v. Johnston, 124 Ga. App. 785, 788 (186 SE2d 129) (1971).

“A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and (c) the licensees do not know or have reason to know of the condition and the risk involved.” Patterson v. Thomas, 118 Ga. App. 326, 328 (163 SE2d 331) (1968). Accord Haag v. Stone, 127 Ga. App. 235, 236 (193 SE2d 62) (1972).

“ ‘An owner owes to a licensee no duty as to the condition of the premises . . . save that he should not knowingly let him run upon a hidden peril or wilfully cause him harm.’ Atlantic C.L.R. Co. v. O’Neal, 180 Ga. 153, 156 (178 SE 451). This is the obligation not to lay for him or permit to exist pitfalls or mantraps in which it may be reasonably anticipated he will become ensnared. Bohn v. Beasley, 51 Ga. App. 341 (180 SE 656). ‘Where the injury for which a recovery is sought is caused by the dangerous statical condition of the premises, the injury to the licensee has to be occasioned by wilful and wanton negligence.’ ” Higginbotham v. Winborn, 135 Ga. App. 753, 756 (218 SE2d 917) (1975).

“Here, the burden was on the defendants in their motion for summary judgment to affirmatively negative the claim of the plaintiffs and show they are not entitled to recover under any theory of the case and to accomplish this by evidence which demands a finding to that effect.” Barry v. Cantrell, 150 Ga. App. 439, 441 (258 SE2d 61) (1979).

In the present case there was ample evidence as to defendant’s negligence, and perhaps as to wilful and wanton acts, leading to the fire. But those acts or failures to act are not actionable. Apart from the fire itself, there is nothing to constitute wilful and wanton misconduct. Plaintiffs’ injuries resulted not from any pitfall but from the fire’s sudden intensity. As to the cause for the acceleration of the blaze, plaintiffs show that defendant knew of a prior source of flammables on the property. However, as firemen plaintiffs likewise had that knowledge. Patterson, supra at 328, requirement (c). Assuming defendant had a duty to anticipate the presence of plaintiffs on its land, the parties had equal knowledge of any pitfalls (wood floors, combustibles, lack of ready exit save the stairway, etc.). In fact, since defendant’s agents were not at the scene and there is nothing to substantiate that plaintiffs’ injuries resulted from any unknown or hidden danger, plaintiffs had at the least equal and perhaps more knowledge of the condition of the premises than defendant.

Decided March 12, 1987

Rehearing denied March 30, 1987

Roy E. Barnes, Jerry A. Landers, Jr., for appellants.

J. Kenneth Moorman, for appellee.

On the record here, defendant carried its burden of showing no breach of its duty to plaintiffs after their presence was known or reasonably should have been anticipated. See Evans v. Parker, 172 Ga. App. 416, 417 (1) (323 SE2d 276) (1984).

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


author: Birdsong, Chief Judge.

text:
    73707.
    SKINNER v. THE STATE.
    (355 SE2d 726)
   Birdsong, Chief Judge.

Charles Skinner, Kembile Barnes and Russell Holbrook, were jointly indicted for conspiracy to violate the Georgia Controlled Substances Act. Barnes and Holbrook entered pleas of guilty to the indictment and Skinner brings this appeal from his conviction. Donald Augustine and Larry Sproat, Special Agents with the U. S. Drug Enforcement Administration, met with Barnes and Holbrook and discussed the purchase of a kilogram of cocaine. Augustine purchased a quarter ounce of cocaine for $550 from Barnes. Barnes also gave him some marijuana and ten tablets of methaqualone. The methaqualone was analyzed and it was what it was purported to be. Augustine then asked to purchase 100,000 tablets of methaqualone, also called “Quaaludes,” for 90$ per tablet. Barnes could not deliver the entire 100,000 but agreed to deliver 15,000 Quaaludes for $18,000 at the Ramada Inn parking lot in Marietta. Sproat was to act as the “money man” and stayed in the car to prevent the drug dealers from “ripping off” the purchase money. Barnes and Holbrook were the delivery men and the drug “source” stayed separate from them to “insulate” himself from the actual dealing.

At the meeting in the Ramada Inn, Barnes told Augustine that his “source” did not want to “deal” in the Ramada parking lot, but preferred to deal at the “Hunt Club” where his girl friend worked. Augustine refused to budge, saying that his “money man” wanted to deal at the Ramada. Barnes and Holbrook were driving a 1979 white Oldsmobile Cutlass and agreed to go get the drugs and return. DEA Special Agent Richard Tucker was in another car with a Marietta policeman keeping surveillance on the Ramada parking lot and followed Barnes and Holbrook when they left. Barnes and Holbrook went to the Hunt Club and entered. “[T]he door barely had had time to close, then they came back out” accompanied by defendant Skinner. The three men went to the trunk of a Lincoln Continental and bent over the trunk but did not raise the trunk lid. Thereafter, Holbrook and Barnes drove away in the Lincoln and Skinner got in the Olds Cutlass and followed them. The DEA agent followed the two cars to the Ramada Inn parking lot. Skinner parked on one side of the lot and the Lincoln parked across from it.

When Agents Augustine and Spróat returned to the Ramada parking lot, they drove up to the white Olds Cutlass Barnes and Holbrook had been driving when they left and observed defendant Skinner slumped down in the driver’s seat. Then they saw Barnes and Holbrook in the Lincoln and drove over to them. Augustine remarked to Barnes that he had seen his “source of supply, sitting across the parking area in the Oldsmobile. And [Barnes] said, Yeah. . . . We switched vehicles, and my source of supply, or my man, wanted to watch the deal go down to protect his interest.” Barnes assured Augustine that the Quaaludes would be “very, very high quality methaqualone tablets” and they would go to Florida the following day to pick up the remainder of the hundred thousand Quaaludes. Barnes and Holbrook attempted to open the trunk of the Lincoln but the key would not work. That is when “Holbrook said Charles could not open the trunk using the key, that you have to use the inside trunk release.” The inside trunk release was then used to open the trunk and Augustine observed what he thought to be Quaaludes. The tablets were scored on one side and were stamped “Lemmon 714,” which were the correct markings for Quaaludes. Augustine then gave the signal and police officers moved in and arrested all three defendants. A loaded pistol was taken from Holbrook and another loaded weapon was taken from the Lincoln. An unloaded weapon was found in the Olds Cutlass. A chemical analysis of the purported. Quaaludes showed them to be a decongestant. They were counterfeit drugs.

Skinner testified that he knew nothing about this offense. Barnes came into the Hunt Club and asked him to drive one of his cars home. He said that he would but he had to return soon as he had a date with his girl friend who worked at the Hunt Club. Skinner’s girl friend, now his wife, testified that she saw Barnes come into the Hunt Club and ask Skinner to drive one of his cars home. She said that Barnes probably stayed “thirty, forty-five minutes or an hour before they left.” She knows Barnes “sat around and drank a couple of beers, but he was in there longer than that. . . .” Skinner appeals from the jury verdict of guilty and sentence entered upon the verdict. Held:

1. The appellant alleges the trial court erred in denying his motion for a directed verdict of acquittal “in that the evidence presented . . . failed to prove a conspiracy to commit a substantive crime, but in the alternative proved a completed act which constituted no crime. . . .” Although it is not clear what this allegation of error encompasses, appellant argues “it was the clear intent of our legislature to make conspiracy a separate and distinct crime only in those instances where the crime conspired to be committed had not in fact been committed. . . . Once the substantive crime charged as the object of a conspiracy has in fact been completed, the charge of conspiracy is no longer applicable . . . the sale or transaction which . . . was to constitute the substantive crime . . . which was the object of the conspiracy charged in the indictment . . . the transaction set up between Barnes and Augustine did not fall through; it was consummated.”

Appellant is correct in his citation of law, but we find no foundation in fact for such an argument. The Supreme Court addressed this issue in Scott v. State, 229 Ga. 541, 544 (192 SE2d 367), and held that “[i]t is manifest from a reading of [Code Chap. 26-32; now OCGA § 16-4-8] of the Criminal Code of Georgia that it was the intent of the legislature to make conspiracy itself a separate crime only in cases where the crime conspired to be committed had not in fact been committed, that is, where the conspiracy had been, so to speak, ‘nipped in the bud.’ ” In the instant case, the criminal offense which was the object of the conspiracy was the sale and purchase of 15,000 Quaaludes. There was no sale of, delivery of, or purchase of any Quaaludes. Hence, the crime which was the object of the conspiracy was not completed and it was not error to charge the crime of conspiracy for this reason.

2. The appellant contends the trial court erred in denying his motion for a directed verdict on the basis that the evidence presented “failed to prove an essential element of the crime charged, that is the specific intent to distribute and deliver methaqualone. . . .” The offense of conspiracy to commit a crime is defined by our code as when one person “together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy.” OCGA § 16-4-8 (formerly Code Ann. § 26-3201). It is readily observed that the statutory definition of this offense does not include “intent” as an element. However, treatise writers have added a gloss to the statute by explaining that “[ijntent of two kinds is required to establish a conspiracy. First there must be an intent to agree [cit.], and lack of capacity to agree may negate this requirement. [Cit.] Second, a defendant must have intent to realize a criminal objective but not necessarily the one which resulted.” Daniel, Ga. Criminal Trial Practice (1985), § 13-25; accord Kurtz, Criminal Offenses in Ga. 57. However, our Supreme Court has repeatedly defined a “conspiracy” as “ ‘a corrupt agreement between two or more persons to do an unlawful act.’ Fincher v. State, 211 Ga. 89 (4) (84 SE2d 76); Park v. State, 224 Ga. 467, 473 (162 SE2d 359).” Sentell v. State, 227 Ga. 153, 156 (179 SE2d 234). Regardless of the efficacy of treatise writers’ deductions from appellate decisions, the trial court in the case at the bar charged the jury that appellant could not be found guilty by his mere presence and that “[a] specific intent to commit the crime charged in the indictment is an essential element that the state must prove beyond a reasonable doubt.”

Appellant’s co-defendants, Barnes and Holbrook, both pleaded guilty to the same offense charged against this defendant. Holbrook testified concerning appellant, Barnes and himself meeting in Barnes’ house just prior to this incident. He heard “Mr. Barnes and Mr. Skinner were preparing to do a drug deal.” He said appellant was “in the parking lot at the Ramada Inn. . . . Making sure everything went down right,” and that those drugs were “Mr. Skinner’s,” for “[h]e’s the one that brought them.” The agreement between the parties was adequately proven. Barnes and Holbrook testified that they had entered a plea of guilty to the same offense charged against this appellant, and in any conspiracy the intent of the actual perpetrator is imputable to his co-conspirators. Burke v. State, 234 Ga. 512, 513 (216 SE2d 812); Pressley v. State, 207 Ga. 274, 282 (61 SE2d 113). This enumeration is without merit.

Judgment affirmed.

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

On Motion for Rehearing.

On motion for rehearing, counsel for appellant alleges (1) “this Court has overlooked a material fact in the record, specifically that the substance in question was not in fact methaqualone, but merely an uncontrolled and legal substance,” and (2) “construe the dual intent requirement of a charge of conspiracy to be merely a gloss of explanation offered by treatise writers.”

First, as stated in the original opinion: “A chemical analysis of the purported Quaaludes showed them to be a decongestant.” (Supra.) Secondly, appellant contended in its brief that the evidence failed to prove “the specific intent to distribute and deliver methaqualone. . . .” (Emphasis supplied.) We quoted the statute on general conspiracy, in effect at the time of these alleged offenses, Code Ann. § 26-3201 (now OCGA § 16-4-8; but see also OCGA § 16-13-33), and observed that the statutory elements of the offense of conspiracy did not include a specific intent. However, we noted the ease with which treatise writers added requirements for proof of two kinds of intent in proving a conspiracy. There was no need to reach this issue as the opinion pointed out that the trial court charged the jury on the necessity for them to find “[a] specific intent to commit the crime charged in the indictment. . . .” Since the jury found the evidence supported a finding of specific intent to commit the crime charged, no useful purpose is served by a discussion of whether the jury was required to reach that element.

On rehearing, appellant again stresses the lack of proof of any specific intent on his part to commit the offense of distribution of methaqualone, but “merely an uncontrolled and legal substance.” Appellant ignores Code Ann. § 79A-811 (i) (now OCGA § 16-13-30 (i)), which prohibits possession, control, delivery, distribution or sale of a “counterfeit substance.” “Counterfeit substance” is defined as “a controlled substance which, or the container or labeling of which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, number or device, or any likeness thereof, of a manufacturer. . . .” Code Ann. § 79A-802 (f) (now OCGA § 16-13-21 (6)). Hence, the substance transferred was not a “legal substance” because Barnes advised the undercover officer the substance was methaqualone and the officer observed the marking on each pill of “ ‘Lemmon 714,’ which is common to methaqualone tablets.”

Appellant’s position on appeal is that (1) he did not participate in the conspiracy, and (2) even if he did, the act charged was not proved because the alleged illegal drug distributed was a “legal substance,” a decongestant (60 of the 15,000 pills were aspirin). Pretermitting the issue of whether it is legally permissible for an appellant to rely upon inconsistent defenses (see Gregoroff v. State, 248 Ga. 667, 670, 671 (285 SE2d 537)), we have found the evidence sufficient to establish the offense alleged.

Co-conspirators Barnes and Holbrook had entered pleas of guilty to the charge of conspiracy to distribute and deliver methaqualone (Quaalude). Holbrook testified he witnessed a conversation between Skinner and Barnes, in Barnes’ house, on the day this transaction occurred, in which “Barnes and Skinner were preparing to do a drug deal . . . Quaaludes. ...” Later that day, Holbrook and Barnes obtained the drugs from Skinner, and attempted to transfer them to the undercover police officer. Barnes testified that he “knew what was in the trunk of the car . . . what was supposed to be in the trunk of the car. . . .” Barnes assured the undercover officer the pills were “very high quality Quaaludes of a “better quality” than the samples he had previously given him. The pills each carried the methaqualone trademark “Lemmon 714.” None of the co-conspirators testified at trial that they did not believe the drugs to be methaqualone. After all three conspirators were arrested and placed in jail, Skinner is said to have told Holbrook that “the drugs . . . they wasn’t any good.”

Decided March 13, 1987

Rehearing denied March 30, 1987

Bobby Lee Cook, Sr., William T. Cox, Jr., A. Kristina Cook Connelly, L. Branch S. Connelly, for appellant.

Thomas J. Charron, District Attorney, James T. Martin, Assistant District Attorney, for appellee.

The question of the existence of a conspiracy is for the jury. Hurt v. State, 239 Ga. 665, 673 (238 SE2d 542). The crux of a conspiracy “is the corrupt agreement between two or more persons to commit an act prohibited by law.” Rollins v. State, 215 Ga. 437, 439 (111 SE2d 63). The jury was authorized by the evidence to find that Barnes and Holbrook believed they were participating in an unlawful agreement for the sale of methaqualone. All participants in a conspiracy are criminally responsible for the acts of each, committed in the execution of the plan. White v. State, 255 Ga. 210 (1) (336 SE2d 777). Further, in a conspiracy “ ‘[t]he intent of the actual [actor] is imputable to his coconspirators.’ ” Burke, supra at 513. Hence, when viewed in the light favorable to the verdict, the evidence was sufficient to enable any rational trier of fact to find the existence of the offense of conspiracy to distribute methaqualone, between Barnes and Holbrook, beyond a reasonable doubt (Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560)), and such intent is imputable to their overt conspirator, according to Holbrook, the appellant Skinner.

Motion for rehearing denied.


text:
    74074.
    LEWIS et al. v. GEORGIA POWER COMPANY.
    (355 SE2d 731)
   Birdsong, Chief Judge.

Wrongful Death — Summary Judgment. The facts of this tragic incident establish that in a field adjacent to a well-traveled public road, Georgia Power had placed a 40-foot power pole. The field apparently was a vacant lot with the power pole at the roadside edge of the field. Neighborhood children frequently played in the field, apparently to the knowledge of Georgia Power. The power pole in question was one in a line and was used to carry very high voltage electrical lines. At the top of the pole were, three power lines carrying 25,000 volts of electricity. The lines were more than 20 feet above ground level and were standard uninsulated power lines commonly used in the transmission of electricity by electric companies. Running up the pole from a long handle switch several feet above the ground a fiberglass rod was attached to the side of the pole. This rod was designed to allow electric company employees to raise the rod and thus to deenergize the power lines apparently to allow localized work on the lines. The fiberglass rod was attached to the 40-foot pole by large bolts. These bolts started ten feet above the ground and were spaced approximately four feet apart.

On the date of the incident involved in this lawsuit, Alan Lewis, a 16-year-old, apparently was firing a rocket-propelled parachute into the air from the field adjacent to the power company’s power lines. The evidence indicates that when the parachute descended, it became entangled upon one of the 25,000 volt power lines approximately 20 feet above the ground and 28 feet away from the power pole. It appears also that the youth, Alan, attempted to recover the parachute. A reconstruction of what apparently occurred indicated he was able to use the long-handled switch as a first step or platform to reach the first bolt attaching the fiberglass rod to the power pole. Then using the bolts spaced four feet apart, young Lewis climbed the pole to retrieve his parachute. Upon reaching the area of the pole to which the transmission lines were attached and apparently while attempting to snare the parachute, Lewis came into contact with one of the live power lines. Lewis received a severe electrical shock, causing serious bodily injury which resulted in his death six days later. His parents, as next of kin and administrators of his estate filed a wrongful death action seeking $27,000,000 in damages for wrongful death, pain and suffering, and loss of services. Georgia Power moved for summary judgment contending that young Lewis was a trespasser and had caused his own injuries and death by his negligent acts. The trial court granted summary judgment to Georgia Power from which Mr. and Mrs. Lewis have filed this appeal. Held:

Under the law prior to 1982, there could be no question that the trial court quite properly should have granted summary judgment to the power company under this state of facts. The facts of this case establish that young Lewis was a trespasser; permission to climb the pole could not be inferred from the fact that the power company was aware that children played near the pole; there was no evidence that Georgia Power lured Lewis into a mantrap nor demonstrated a wilful or wanton intent to harm him; there was no permissible inference arising from the evidence that the wire which was uninsulated but suspended 20 feet above the ground constituted a mantrap; nor was there any evidence that Georgia Power because it knew children played in the field also was aware that children could or did climb the pole. Under facts very similar to the present case, it was held in Crosby v. Savannah Elec. &c. Co., 114 Ga. App. 193 (150 SE2d 563), that the injured child was not entitled to recover. Two other related cases involved the climbing of wire-carrying towers rather than poles where the child climbed using bolts. In each of these cases, it was held proper to grant summary judgment to the power company. Georgia Power Co. v. Worthington, 145 Ga. App. 44 (243 SE2d 297); Ryckeley v. Ga. Power Co., 122 Ga. App. 107 (176 SE2d 493).

From these cases several salient points appear as established. Uninsulated wires suspended high above the ground out of reach of persons on the ground are not “mantraps.” Use of uninsulated wires in such a location not only does not amount to wilful or wanton disregard of the safety of others but also constitutes a reasonable use by the power company. Putting a pole to a use for which it is not intended by a trespasser does not subject the owner to liability for such use unless actual knowledge by the owner is shown. Lastly, these cases establish that knowledge that children play in an area near the pole does not constitute knowledge that the children customarily would climb the pole. See Carden v. Ga. Power Co., 231 Ga. 456 (202 SE2d 55); Georgia Power Co. v. Williams, 132 Ga. App. 874 (209 SE2d 648).

In March 1982, the Supreme Court considered anew the principles of law applicable to the attractive nuisance doctrine in relation to children. Gregory v. Johnson, 249 Ga. 151 (289 SE2d 232). In that case five conditions were recognized which must be met to sustain a cause of action by trespassing children. These are: that the landowner has reason to believe that children are or will be trespassing; that the attracting condition involves an unreasonable risk of death or serious bodily harm to children; that because of their youth the children are not likely to discover the danger or realize the risk involved in inter-meddling with the condition; that the utility of maintaining the condition and the burden of correcting is outweighed by the risk to the children involved; and that the landowner fails to exercise reasonable care to eliminate the danger or otherwise protect the children.

We note that these five conditions are conjunctive and not disjunctive, thus all five must be met in order to allow a trespassing infant to recover for injuries incurred on the landowner’s property. Moreover, we must consider if the infant lacks sufficient age or experience to appreciate the risk or be aware of the danger, for the rule above-announced finds its genesis in a consideration of the law of negligence and particularly in the area of attractive nuisances, as to whether under the given circumstances the landowner is liable for the consequences of his negligence when he should in the exercise of ordinary care have foreseen that harm would result to an infant trespasser whose presence he should have anticipated. Second Restatement of Torts, § 339, 1965.

Weighed in the light of the Gregory case and given the circumstances as shown by this record, we find no error in the grant of summary judgment to Georgia Power Company. At best the Lewises have shown a static condition with uninsulated wires suspended at least 20 feet above the ground, well out of the reach or contact with persons on the ground. It is uncontested that such high voltage wires are common in electrical company usage. It is asserted without contradiction that the bolts on the pole in question were used for the purpose of affixing the fiberglass rod to the pole and not for use as an aid to climbing or as a ladder (as contended by the Lewises). It was not shown that Georgia Power was aware that children were using these bolts as a substitute ladder although there is no dispute that Georgia Power was aware that children played in the adjacent field. Common experience of mankind dictates that a 16-year-old youth of average intelligence is more likely to be aware that electrical wires strung to the top of a power pole may be dangerous than a child of lesser years. Moreover, common experience dictates that the placement of the bolts at four-foot intervals physically would preclude most infants from reaching from one bolt to the next or even from maintaining balance while attempting to make such an unexpected climb. Lastly, the facts show that young Lewis was not climbing the pole as a lark or because of the attractiveness of the challenge to climb but was doing so to recover his rocket-propelled parachute.

As we view these facts, the placement of the activating handle of the switch at a point at least three feet above the ground, with the first attaching bolt at least ten feet above the ground constitutes the same relative degree of care as the placement of a fence around a neighborhood swimming pool. While the placement of the switch handle and bolts obviously did not preclude a determined youth from climbing the pole by using devices not designed to facilitate climbing, neither will a fence preclude a determined youth from climbing a fence. Even in the neighborhood pool situation, it is considered appropriate care to erect a fence and thus preclude a recovery by a trespassing but injured party. Likewise under the facts of this case, we agree with the trial court that Georgia Power had taken all reasonable precautions to prevent children from being exposed to the danger of the high voltage wires. In the absence of actual knowledge that children were capable of climbing the pole and were actually doing so, or that there was a reasonable expectation that children might be exposed to the highly dangerous wires, there was no liability to the decedent in this case who exposed himself to the apparent danger and assumed the risks of his trespassory act.

Decided March 13, 1987

Rehearing denied March 30, 1987

James W. Lewis, for appellants.

Robert L. Pennington, for appellee.

Judgment affirmed.

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