author: Per curiam. McMurray, Presiding Judge,

text:
    A91A0384.
    COSTANZO v. JONES.
    (409 SE2d 686)
   Per curiam.

Plaintiff Jones brought suit against defendant Costanzo in the State Court of Fulton County, alleging defendant was indebted to plaintiff pursuant to a commercial lease agreement in the amount of $17,814.46 (as of September 15, 1989). Defendant denied the material allegations of the complaint. In addition, defendant asserted “indispensable party” and “accord and satisfaction” defenses.

Thereafter, plaintiff moved for summary judgment. The motion was accompanied by plaintiff’s affidavit. A copy of the lease was attached thereto.

The lease was executed by plaintiff, as “landlord,” and defendant, as “tenant.” It called upon defendant to pay plaintiff “base rent” in the amount of $4,500 per month for 36 months commencing June 1, 1988. It also required defendant to pay plaintiff “additional rent” — to wit, taxes and utilities. The lease was not under seal.

In his affidavit, plaintiff deposed that he is the owner of real property located at 6483 Peachtree Industrial Boulevard, Atlanta, DeKalb County, Georgia; that that property is the subject of the lease agreement between plaintiff and defendant; that on February 24, 1989, he “sent a letter to defendant’s agent, Don Scott, of Santa Fe Tool and Supply Company (“Santa Fe”) at 6483 Peachtree Industrial Boulevard . . . notifying said agent of amounts due under the lease for utilities and taxes”; and that defendant failed to pay the amount due. Plaintiff further deposed that defendant failed to pay the rent due on May 1, 1989, and that on May 31, 1989, plaintiff made demand for past due rent and past due utilities and taxes; that on June 5, 1989, plaintiff received a $4,500 check from Santa Fe; that on June 26, 1989, plaintiff again made a written demand for past due rent; and that defendant failed to make any other payments to plaintiff under the lease.

Plaintiff’s affidavit continued as follows: “On July 19, 1989,1 filed a dispossessory action in the State Court of DeKalb County . . . against the defendant or tenant in possession of the leased premises. My attorney informed me that the dispossessory complaint was never answered. . . . The occupant of the leased premises, Santa Fe . . . sought to avoid eviction by a proposal to my attorney ... On August 3,1989,1, through my attorney, entered into an agreement with Santa Fe to defer my taking a writ of possession on the leased premises. . . . After making the initial payment, Santa Fe failed to make any of the payments required under the agreement. . . . Subsequent to making the August 3, 1989 agreement and payment, Santa Fe abandoned the leased premises. . . . Defendant failed to pay any past due amounts and evidenced no desire to maintain any right to possession.”

Plaintiff further deposed that on August 22, 1989, he obtained a writ of possession with regard to the leased premises from the State Court of DeKalb County; that, pursuant to the writ of possession, he took possession of the leased premises on August 30, 1989; that the premises were damaged by defendant and/or Santa Fe and, consequently, it was necessary to make numerous repairs to the premises. A copy of a record of repairs made to the premises was attached to and made a part of the affidavit. The affidavit went on to recite the amount of taxes and utilities which had accrued on the property.

The documents filed in the DeKalb County dispossessory action were attached to plaintiff’s affidavit and incorporated therein by reference. They show that on July 19, 1989, plaintiff filed a dispossessory warrant in the State Court of DeKalb County against defendant “individually and d/b/a Santa Fe Tool and Supply Company, 6483 Peachtree Industrial Blvd.” It was alleged “that said tenant fails to pay rent now due . . . failed to pay taxes and utilities re: lease agreement.” Plaintiff sought a writ of possession and “judgment for past due rent in the amount of $12,515.30 as of date of filing.” The dispossessory documents also show that plaintiff applied for a writ of possession on August 21,1989, alleging defendant failed to file an answer; and that a writ of possession was issued the next day.

In a brief accompanying the motion for summary judgment, plaintiff asserted that defendant was indebted to plaintiff pursuant to the lease agreement in the amount of $125,143.11.

Plaintiff’s motion for summary judgment came on for a hearing on June 25, 1990. That same day, defendant filed an amendment to his answer setting forth two additional defenses. It was alleged that defendant signed the lease in a representative capacity and the lease should be reformed to reflect that “Santa Fe Capital Corporation” was the “true lessee.” It was also alleged that plaintiff’s action was barred “by the doctrine of estoppel, res judicata, and estoppel by judgment.”

Defendant also filed an affidavit on the day of the hearing. Therein, he deposed that at all times during the negotiation and execution of the lease agreement he was “the disclosed agent for Santa Fe Capital Corporation and it was completely the intent of all parties that the tenant and named lessee in the lease would be Santa Fe Capital Corporation. [T]he only tenant of this property was Santa Fe Capital Corporation. Essentially, after the signing of this lease, I have had no contact with the Plaintiff. I was an officer of the said Santa Fe Capital Corporation, but I was not the sole officer, was not the sole stockholder, and did not take an active, daily operating role in the business of the corporation, and all of these facts were well known to the plaintiff prior to and at the time of the execution of the lease.”

Thereafter, plaintiff submitted a second affidavit in which he deposed: “My intent in contracting with [defendant] for the lease of [the premises] was to contract with [defendant], individually, as the proprietor of a business engaged in the sale and service of tools and equipment. Prior to and at the time of making said lease, I had no knowledge that [defendant] was agent for Santa Fe Capital Corporation or any other entity or principal. ... I knew that [defendant] was owner of a business engaged in the sale and service of tools and equipment. ... I understood that [defendant], individually, would be doing business at the leased premises in the name of Santa Fe Tool and Supply Company. I understood that said name was only a business name used by [defendant]. ... I intended to contract with [defendant] individually because I understood that he would be personally obligated on the lease. I considered such personal obligation a consideration in ensuring that the obligations of the lease would be performed. ... I have never requested entry of default judgment on the past due rent claimed in the DeKalb State Court dispossessory action . . . nor has any judgment been rendered by that Court on the issue of past due rent, nor have I had a full opportunity to litigate the issue of rent past due prior to the dispossessory action. The only issue adjudicated by the Court was the issue of possession.”

Thereafter, on July 20, 1990, plaintiff filed an amendment to his motion for summary judgment. In pertinent part, the amendment reads: “[I]n the interest of justice and fairness, Plaintiff hereby reduces his demand for contractual damages showing the Court that the plaintiff has obtained a new Tenant for the premises at issue. . . . Plaintiff’s demand is reduced to $99,935.22.”

On August 13, 1990, the trial court granted plaintiff’s motion for summary judgment “as to the issue of liability only.” Defendant appealed on August 27, 1990. Thereafter, on September 14, 1990, the trial court entered the following order: “On August 9, 1990, this court granted Plaintiff’s motion for summary judgment as to the issue of liability only, and issued a Rule Nisi for hearing on the issue of damages. The issue of damages having come before the Court on August 29, 1990, and the Court having heard oral argument from Plaintiff, there being no appearance on behalf of defendant, and having considered all the evidence . . . this Court hereby grants Plaintiff’s motion for Summary Judgment as to the issue of damages in the amount of $98,927.21.”

On appeal, defendant raises two enumerations of error. First, he contends the trial court erred in granting plaintiff’s motion for summary judgment with regard to liability. Second, he contends the trial court erred in granting plaintiff’s motion for summary judgment with regard to damages. Held:

1. The motion for a supersedeas bond is denied.

2. Defendant contends the trial court erred in granting plaintiff’s motion for summary judgment as to liability because a question of fact exists as to (a) whether the lease agreement should be reformed and (b) whether plaintiff’s action is barred by the doctrine of res judicata. We disagree.

(a) In order for a lease agreement to be reformed, the complaining party must show a mutual mistake, i.e., a mistake of both parties. A. J. Concrete Pumping v. Richard O’Brien Equip. Sales, 256 Ga. 795, 796 (1) (353 SE2d 496); Thomaston v. Fort Wayne Pools, 181 Ga. App. 541, 542 (3) (352 SE2d 794). To pierce defendant’s reformation defense, plaintiff presented evidence that any mistake was unilateral since he dealt (and only intended to deal) with defendant individually.

In his affidavit, defendant deposed that the parties mutually intended to name Santa Fe Capital Corporation as the lessee. Thus, defendant’s affidavit would appear to create an issue of fact regarding the mutual intention of the parties. Nonetheless, we find that plaintiff was entitled to judgment on the reformation issue as a matter of law. Why? Because defendant did not present any evidence showing how it came to pass that the parties put his name alone on the contract.

To reform a contract on the basis of mutual mistake, the evidence must show more than the true intention of the parties. It must show “why the language sought to be inserted was left out... or how the mistake occurred.” Wheeler v. Poole, 204 Ga. 477, 480 (50 SE2d 326). In the case sub judice, the record is devoid of any evidence showing why, if the parties intended the tenant to be Santa Fe Capital Corporation, Santa Fe Capital Corporation’s name does not appear in the lease agreement.

Plaintiff pierced defendant’s reformation defense by showing a lack of mutual mistake. Thus, it was incumbent upon defendant to present evidence showing that his reformation defense remained viable. OCGA § 9-11-56 (e). This defendant failed to do.

(b) Georgia law is clear that the doctrine of res judicata cannot be invoked in the absence of a final judgment upon the matter in question. “ ‘It is only a final judgment upon the merits which prevents further contest upon the same issue and becomes evidence in another action between the same parties or their privies.’ [Cit.] ‘No finding nor verdict will bar another suit until judgment is rendered upon it.’ [Cit.]” Mitchell v. Mitchell, 97 Ga. 795, 796 (25 SE 385). See also Lewis v. Price, 104 Ga. App. 473, 474 (1) (122 SE2d 129). Although the pleadings in the dispossessory action show that the amount of past due rent was put in issue, it is clear that no final judgment was pronounced by the DeKalb County court with respect to the rent issue. It follows that plaintiff effectively pierced defendant’s res judicata defense.

(c) The trial court did not err in granting plaintiff’s motion for summary judgment with respect to liability.

3. This Court cannot consider defendant’s enumeration attacking the correctness of the trial court’s subsequent award of damages in favor of the plaintiff because no timely notice of appeal was filed from the trial court’s order granting summary judgment in that regard.

The initial grant of summary judgment on the issue of liability was directly appealable by defendant pursuant to OCGA § 9-11-56 (h). Pursuant to OCGA § 5-6-34 (d), defendant would be entitled to enumerate as error any other prior or contemporaneous rulings in the case. Southeast Ceramics v. Klem, 246 Ga. 294 (271 SE2d 199) (1980). Defendant would not, however, be entitled to enumerate as error any and all other subsequent rulings in the case. An “enumeration cannot be considered . . . [if] the ruling that it complains of . . . was entered . . . subsequent to filing of the notice of appeal. . . . [Cit.]” Cates v. Cates, 225 Ga. 612, 613 (2) (170 SE2d 416) (1969). “[Judgments [can]not be considered [on appeal] ... [if] rendered . . . subsequent to the judgment appealed from. [Cit.]” Lowe v. Watson, 228 Ga. 393 (1) (185 SE2d 774) (1971). “[I]ssues raised . . . [which are] not . . . encompassed within the final order from which the appeal has been taken, . . . may not . . . [be] raise [d] [on appeal], either in enumerations of error or through arguments in briefs of counsel. [Cits.] Accordingly, enumerations of error [which address the subsequent grant of summary judgment on the issue of damages], not being properly before this court, [should] not now be considered. [Cit.]” Blakely & Son, Ltd. v. Humphreys, 148 Ga. App. 281, 284 (1) (250 SE2d 826) (1978).

Orders entered subsequent to the filing of a notice of appeal are appealable only pursuant to a subsequently filed notice of appeal. The enumeration of error in the instant case which addresses the subsequent grant of summary judgment on the issue of damages is not predicated upon a timely filed notice of appeal from that order or from any other appealable order which encompasses that subsequent ruling. Accordingly, we have no jurisdiction to consider the grant of summary judgment on the issue of damages.

Judgment affirmed.

Sognier, C. J., Banke, P. J., Birdsong, P. J., Carley, Pope, Beasley, Cooper and Andrews, JJ., concur. McMurray, P. J., concurs in part and dissents in part.

Decided July 16, 1991

Reconsideration denied July 31, 1991

Glenville Haldi, for appellant.

Eason, Kennedy & Associates, John C. Sumner, David A. Kennedy, for appellee.

McMurray, Presiding Judge,

concurring in part and dissenting in part.

I concur in Divisions 1 and 2 but I respectfully dissent from Division 3. In my opinion, defendant is entitled to enumerate error upon the judgment awarding damages even though he did not file a notice of appeal with respect to that judgment.

When an appeal is taken to our appellate courts, the appellant can assign error upon any ruling, order or judgment entered in the court below. Southeast Ceramics v. Klem, 246 Ga. 294, 295 (271 SE2d 199). See also Allen v. Rome Kraft Co., 114 Ga. App. 717, 718 (152 SE2d 618). It follows that we have jurisdiction to consider defendant’s enumeration of error with regard to the damages issue.

Cases holding that error cannot be assigned upon a ruling entered subsequent to the filing of the notice of appeal (see, e.g., Cates v. Cates, 225 Ga. 612, 613 (2) (170 SE2d 416) and Lowe v. Watson, 228 Ga. 393 (1) (185 SE2d 774)) are no longer viable in light of Southeast Ceramics v. Klem, supra, with its emphasis upon judicial economy. Klem mandates consideration of previous contemporaneous and subsequent rulings in the case: “We frown upon the practice of appellate review by installment and seek to encourage appellate determination of issues in a case in the fewest possible appellate procedures. . . . We hold that when a direct appeal is taken, any other judgments, rulings or orders rendered in the case and which may affect the proceedings below may be raised on appeal and reviewed and determined by the appellate court.” Southeast Ceramics v. Klem, supra at 295.

It is my view that defendant’s enumeration of error with regard to the issue of damages should be addressed on the merits.

       “The Georgia courts have consistently held that parol evidence is not admissible to show that a person signed a written contract under seal as agent unless the contract purports upon its face to be the contract of the principal. Brega v. CSRA Realty Company, 223 Ga. 724, 157 S.E.2d 738 (1967); Carr v. Louisville & Nashville Railroad Company, 141 Ga. 219, 80 S.E. 716 (1913); Bowers v. Salitan, 97 Ga. App. 877, 104 S.E.2d 667 (1958); Byers v. Harper, 64 Ga. App. 404, 13 S.E.2d 389 (1941).” In re Universal Profile, 6 B.R. 196, 199 (1980). However, the rule is otherwise with respect to unsealed instruments. United States Fidelity &c. Co. v. Coastal Svc., 103 Ga. App. 133 (4) (118 SE2d 710). The lease agreement in the case sub judice was not under seal.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A91A0387.
    HANOVER INSURANCE COMPANY v. STRIGGLES.
    (409 SE2d 664)
   Beasley, Judge.

Bernice Striggles filed suit for retroactive optional PIP benefits against her automobile insurance carrier, Hanover Insurance Company, on the grounds that it had failed to obtain a valid written rejection of $45,000 in optional PIP coverage. Both sides moved for summary judgment on the sole issue of whether her signature on a 1978 accept/reject form effectuated a rejection of optional benefits. The trial court granted Hanover’s motion for summary judgment, concluding that the 1978 form complied with OCGA § 33-34-5 (b) as it existed prior to the 1982 amendment. On appeal, this court reversed the trial court, holding that the 1978 form did not comply with the Code section. Striggles v. Hanover Ins. Co., 194 Ga. App. 76 (391 SE2d 767) (1989).

After Hanover’s petition for certiorari was denied, Striggles filed a renewed motion for summary judgment based on this court’s reversal of the trial court. Hanover filed a second motion for summary judgment, contending that a prior form executed in 1974 provided its insured an opportunity to accept or reject optional benefits. Hanover also demanded summary judgment on the issue of bad faith because of the trial court’s prior grant of summary judgment in its favor.

The court granted Striggles’ motion for summary judgment, denied Hanover’s motion for summary judgment, and reserved all issues regarding bad faith, penalty, attorney fees and punitive damages for trial.

1. The grant of summary judgment in favor of Striggles was not error.

(a) Insurer maintains that although it was aware it had two signed accept/reject forms, one in 1974 and one in 1978, upon which it could have argued rejection by the Striggles of optional benefits, it did not use the 1974 form because Striggles, when deposed, had said she did not believe the signature was her husband’s. Hanover did not pursue conclusive proof that the signature was that of Mr. Striggles. Instead, it chose to rely on the 1978 form executed by Bernice Striggles. At the hearing on both parties’ original motions for summary judgment, Striggles admitted that the genuineness of the 1974 signature was no longer an issue. Hanover argues that this statement by Striggles changed the evidentiary posture of the case and cleared the way, after remand, for it to seek summary judgment on the basis of the 1974 form. It relies on Modern Roofing &c. Works v. Owen, 174 Ga. App. 875, 876 (332 SE2d 14) (1985), where this court stated that “if subsequent to an appellate decision, the evidentiary posture of the case changes in the trial court, the law of the case rule does not limit or negate the effect that such change would otherwise mandate.”

Assuming Striggles’ failure to challenge the genuineness of the signature in 1988 cleared the way for Hanover currently to use the 1974 form as a basis for summary judgment, the record of Striggles v. Hanover, supra, shows that, prior to the second motion for summary judgment, all of Hanover’s arguments were directed to showing that the 1978 form was in compliance with OCGA § 33-34-5. The 1974 form was never made the basis of any argument, although it was the basis of a defense. OCGA § 9-11-8 (e) (2). In fact, in its brief in Strigr gles, supra, Hanover stated that the 1974 form “is not the basis for the rejection of optional PIP coverage in this case.” Neither did Hanover use the 1974 form in its certiorari petition to the Supreme Court.

Given its specific rejection of this form as a basis for its claims, Hanover’s attempts to introduce the 1974 form are somewhat like those of the appellant in Wheeler’s, Inc. v. Wilson, 196 Ga. App. 622 (396 SE2d 790) (1990) (physical precedent), where we held: “Here there was a waiver [of a legal right by conduct]. Defendant went forward with an attack on liability, investing extensive time and money and requiring the same of its opponent, and also invoking the time and attention of three courts and eleven judges. . . . There is nothing equivocal about its actions here, which speak louder than its lament as to its late-resurrected, logically threshold defense. Its acts belie its insistence on a preliminary matter pursued only after this court has sent the case back to the trial court for trial on the merits of the plaintiff’s claim.” Id. at 625.

However, even if Hanover has now changed the evidentiary pool, by securing Striggles’ decision in 1988 not to contest the genuineness of the signature on the 1974 form, so that Hanover can pursue its piecemeal approach with regard to summary judgment, compare OCGA § 9-11-12 (g), it still cannot prevail for the reasons which follow.

(b) The evidence demanded a finding that RW 079345 was not the same policy as ACF 559733 so that the form filled out in 1974 could not be used when the 1978 form was found deficient.

In its answer to the complaint and in its counterclaim, Hanover stated that the 1974 form related to coverage under policy No. ACF 559733 and that the 1978 form referred to policy No. RW 079345. The 1974 form pertained to $10,000 PIP coverage ($5,000 basic and $5,000 additional) while the 1978 form purported to reject all PIP coverage except $5,000 basic.

Hanover now claims that the two policies were one and the same and that it was the practice of the company to change policy numbers annually upon renewal. Rollins, an underwriting manager for Hanover, stated in affidavit that the policy number was changed annually and in this instance ACF 559733 changed to RW 079345 in June of 1977. However, in his deposition he acknowledged that he had no direct knowledge of the policy, that all his information came from review of the file, that the affidavit had been prepared by others for his signature, and that there was no evidence documenting either annual changes or the specific change of policy number in June 1977. A form in the file showed that the claims had been made on policy No. RW 079345 before June 1977. There were other forms also indicating that policy existed prior to that time. There were no initial application forms for either policy in the file, even though Rollins testified that it was customary for Hanover to preserve such forms. He could not account for their absence.

(c) By its clear language, the 1978 form superseded any other form under the policy. The fact that it proved to be invalid would not serve to revive any antecedent form regarding PIP coverage. Holland v. State Farm Mut. Auto. Ins. Co., 182 Ga. App. 405 (356 SE2d 50) (1987), is controlling; a new election of coverages even under a renewal policy is binding and eliminates a former election for PIP coverage.

2. The final issue is whether Hanover is entitled to summary judgment on the issue of bad faith.

Hanover asserts that the uncontested facts and law establish its good faith as a matter of law because of the trial court’s original grant of summary judgment to it. International Indem. Co. v. Collins, 258 Ga. 236 (367 SE2d 786) (1988), is cited for the proposition that an insurer, as a matter of law, acts reasonably in contesting a claim for no-fault benefits where the insurer is granted summary judgment on an issue of entitlement to benefits, even if the ruling is later reversed. Hanover asserts that a decision by the trial court on its behalf is proof that the claim was not, in fact, unreasonable, because good faith has been defined as “any reasonable ground for contesting the claim,” Bituminous Cas. Corp. v. Mowery, 145 Ga. App. 45, 54 (2) (244 SE2d 573) (1978), and penalties for bad faith are not authorized where there is a disputed question of fact or a doubtful question of law. United States Fid. & Guar. Co. v. Woodward, 118 Ga. App. 591, 594 (4) (164 SE2d 878) (1968).

However, this case no longer involves the reasonableness of Hanover’s actions in response to the original claim on which the trial court granted Hanover summary judgment. Since that appeal Striggles sought to recover the full amount of optional PIP and Hanover interposed a further defense. Its reliance on the 1974 form raises new issues and the trial court’s decision initially that Hanover should prevail is irrelevant. Any decision as to bad faith must now take into account Hanover’s attempt to base further litigation on a matter it not only failed to raise but also explicitly stated was not going to be interposed as a defense to liability.

“[A]n insured is entitled to penalties and damages under OCGA § 33-34-6 (b) and (c) based solely on a late payment. Lawson v. State Farm Mut. Auto. Ins. Co., 256 Ga. 285 (347 SE2d 565) (1986); Atlanta Cas. Co. v. Jones, 247 Ga. 238, 241 (4) (275 SE2d 328) (1981). The burden of showing good faith for a refusal to timely pay is on the insurer. Binns v. MARTA, 250 Ga. 847 (301 SE2d 877) (1983).” Canal Ins. Co. v. Henderson, 183 Ga. App. 880, 882 (1) (360 SE2d 435) (1987). “Good faith in this context requires a showing of reasonable or probable cause for not paying the claim on time. (Cit.) The question of the insurer’s good faith (or lack thereof) is [generally] one of fact for the jury.” Binns v. MARTA, 168 Ga. App. 261, 262 (2) (308 SE2d 674) (1983) (certified question answered in 250 Ga. 847, 848 (301 SE2d 877) (1983)); Hudson v. Omaha Indem. Co., 183 Ga. App. 847, 849 (1) (360 SE2d 406) (1987). In order to prevail the insurer must show it acted in good faith as a matter of law. Ga. Farm Bureau Mut. Ins. Co. v. Bestawros, 177 Ga. App. 667, 668 (1) (340 SE2d 645) (1986). As pointed out in Binns, supra, 168 Ga. App. at 262, a jury’s determination of lack of good faith should be upheld on appeal if there is any evidence to support it. Application of this standard of review to OCGA § 33-34-6 “jury awards is consistent with the policy . . . of encouraging prompt payment of no-fault insurance claims.”

Decided June 19, 1991

Reconsideration denied July 31, 1991.

Darroch & Obenshain, Robert M. Darroch, C. David Vaughan, for appellant.

Siler & Jonap, Timothy A. Siler, William A. Dinges, for appellee.

A jury, in considering the reasonableness of nonpayment and the procedural history of this case, could find that Hanover has failed to carry the burden of demonstrating that its refusal to pay was in good faith. See Porter v. Felker, 261 Ga. 421 (405 SE2d 31) (1991).

Judgment affirmed.

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


author: McMurray, Presiding Judge. Beasley, Judge, Andrews, Judge,

text:
    A91A0400.
    MORRIS et al. v. CHANDLER EXTERMINATORS, INC. et al.
    (409 SE2d 677)
   McMurray, Presiding Judge.

The plaintiffs in this tort action are the individual members of the Morris family, William E. Morris, his wife Susan C. Morris, and their children Lisa Morris and Heather Morris. Defendants are Chandler Exterminators, Inc., and certain affiliated individuals including Dennis H. Chandler, president of the corporate defendant, and Jimmy Keith Chandler, general manager of the corporate defendant.

Plaintiffs’ complaint alleges that the defendants undertook to treat plaintiffs’ residence with chemical pesticides, including Aldrin, a hazardous carcinogen, and that the application of the chemicals was done in a negligent manner causing the contamination of various portions of plaintiffs’ home. Further acts of negligence are alleged to have occurred during defendants’ attempt to clean up the spilled chemicals resulting in a further spreading of the contamination to additional portions of the residence. Plaintiffs allege that due to defendants’ negligence, they have inhaled the chemicals, resulting in physical injuries to themselves which may not be fully manifested for several years. The plaintiffs also allege that their home has been rendered unfit for human habitation, that they have been deprived of the use thereof, and that the chemical contamination has substantially reduced the value of the residence and personal property therein. Additionally, plaintiffs allege that they have suffered and continue to suffer mental pain and anguish over the adverse health effects to themselves, and over the loss of value of their home and personal property. Plaintiffs’ complaint seeks a judgment for general damages, mental pain and suffering, special damages, and punitive damages.

Plaintiffs appeal the superior court’s grant of defendants’ joint motion for summary judgment. In regard to plaintiffs’ claim predicated on personal injuries, the superior court concluded that defendants had sufficiently pierced plaintiffs’ allegations that the alleged negligent chemical application or cleanup had caused any personal injury or resulted in increased risk of contracting any form of cancer. In reaching the conclusion that defendants were entitled to summary judgment on the issue of personal injuries, the superior court also determined that portions of the affidavit of a neuropsychologist submitted by plaintiffs and directed to the causation issue could not be considered. The superior court’s ruling that defendants were entitled to summary judgment as to the property damage issue was predicated upon a release executed by Susan C. Morris. Held:

1. Plaintiffs’ first enumeration of error contends that the superior court erred in failing to consider the affidavit of Dr. Currie, a neuropsychologist, as admissible evidence on the causation issue in regard to their personal injury claims. Dr. Currie’s vita shows that he received his Ph.D in Clinical Psychology in 1965 and has been active in a broad range of activities within his profession, involving teaching and the private practice of psychology. The affidavit of Dr. Currie shows that he specializes in the practice of clinical neuropsychology “which is that branch of psychology which deals with the behavioral expressions of brain functions and dysfunctions, including information reception, processing, judgment, retention, accessing and expression, and the ability of people to master new and novel learning situations and material.” Dr. Currie evaluated each of the plaintiffs in the case sub júdice and opined that each has suffered organic brain damage due to inhalation of the chemical, Aldrin. The superior court determined that while Dr. Currie was qualified, on the basis of his Ph.D in psychology, to state which mental dysfunction plaintiffs may be suffering, he was not competent to testify as to causation since he is not a medical doctor.

However, this conclusion is not well founded. The practice of psychology includes diagnosing and treating mental disorders. OCGA § 43-39-1 (2). “[O]nly a qualified expert such as a psychiatrist, psychologist or medical doctor would be competent to diagnose and define ... a mental disorder.” (Emphasis supplied.) Ellis v. State, 168 Ga. App. 757, 759 (3) (309 SE2d 924).

In Jacobs v. Pilgrim, 186 Ga. App. 260 (367 SE2d 49), this Court upheld admission of expert testimony by a neuropsychologist concerning the diagnosis and cause of that plaintiff’s mental disorder. That decision is consistent with decisions in other jurisdictions which conclude that since psychologists are entitled, by statute, to diagnose and treat mental and nervous disorders, it is incongruous to prohibit these same health care providers from testifying concerning the cause of an affliction which lies within the area embraced by their practice: “It consequently appears to us a curious proposition that the legislature has enough confidence in the competence of non-physician health care providers to grant them licenses to practice their professions, and to authorize treatment by them to injured compensation claimants, but to have intended that those same health care providers be prohibited from testifying concerning the cause of an injury which lies squarely within the areas of their competency.” Madrid v. Univ. of Calif., 737 P2d 74, 76. See also Hooper v. Industrial Comm. of Ariz., 617 P2d 538, 540; Howle v. PYA/Monarch, 344 SE2d 157 (S.C. App.); Sandow v. Weyerhaeuser Co., 449 P2d 426.

While there are jurisdictions which take the opposite view, that is, that a psychologist is not qualified to provide an opinion as to an organic cause of a mental disorder, we view the superior rule to be that applied here. Many health care providers other than medical doctors possess substantial expertise as to medical matters. “[T]he law in Georgia does not require that only medical doctors be permitted to give testimony regarding a medical issue, but allows others with certain training and experience to testify on issues within the scope of their expertise.” Hyde v. State, 189 Ga. App. 727, 728 (377 SE2d 187). See also Avret v. McCormick, 246 Ga. 401 (271 SE2d 832); Jacobs v. Pilgrim, 186 Ga. App. 260, 262 (1), supra; and Macon-Bibb County Hosp. Auth. v. Whipple, 182 Ga. App. 195, 196 (1) (355 SE2d 83). The superior court, having accepted Dr. Currie as a qualified psychologist and expert witness concerning the diagnosis of plaintiffs’ mental ailments, abused its discretion in excluding his further opinions on the causation issue.

2. The release signed by plaintiff Susan C. Morris does not provide a basis for the grant of summary judgment as to the claims for damages of the remaining plaintiffs. The release purports to relate to the claims of the signatory only. Under the evidence of record there is at least an issue of material fact as to whether Susan C. Morris signed as an agent of her husband, who is the sole owner of the family residence, and of her children.

Secondly, there is evidence of mutual mistake concerning the effect of the release. “An honest mistake of the law as to the effect of an instrument on the part of both contracting parties, when the mistake operates as a gross injustice to one and gives an unconscionable advantage to the other, may be relieved in equity.” OCGA § 23-2-22. Susan C. Morris stated that at the time she signed the release she believed the sole effect of the document was to aid defendants being reimbursed by their insurance company (for replacement of carpet and linoleum, and for certain out-of-pocket expenses of defendants in the repair of plaintiffs’ home), and that her belief in this regard was founded upon statements made to her by Dennis H. Chandler. The alleged statements of Dennis H. Chandler may be viewed as showing that he believed, as Susan C. Morris did, that the release would serve only to permit reimbursement of defendants by their insurance company and would not affect her claim against defendants. Fulghum v. Kelly, 255 Ga. 652, 653 (340 SE2d 589). The evidence of record does not demand a finding that Susan C. Morris’ claim is precluded because of the release she signed. Vann v. Williams, 165 Ga. App. 457 (299 SE2d 908). The superior court erred in granting defendants’ motion for summary judgment.

Judgment reversed.

Banke, P. J., Birdsong, P. J., Pope and Cooper, JJ., concur. Beasley, J., concurs specially. Sognier, C. J., concurs in the judgment only. Carley and Andrews, JJ., dissent.

Beasley, Judge,

concurring specially.

I join in the reversal of the judgment granting defendants’ motion for summary judgment because, although I concur in the dissent with respect to the exclusion of Dr. Currie’s affidavit, I agree with the majority concerning the alleged release signed by Susan Morris.

Andrews, Judge,

dissenting.

I respectfully dissent from the majority opinion because I believe the superior court properly excluded Dr. Currie’s affidavit from consideration on the causation issue with regard to the Morrises’ personal injury claims. The superior court determined that while Dr. Currie was qualified, on the basis of his Ph.D in psychology, to state from which mental dysfunction plaintiffs were suffering, he was not competent to testify to causation since he was not a medical doctor. This conclusion was well founded.

Dr. Currie’s speciality is clinical neuropsychology, which he described in his affidavit as “that branch of psychology which deals with the behavioral expressions of brain functions and dysfunctions, including information reception, processing, judgment, retention, accessing and expression, and the ability of people to master new and novel learning situations and material.” His qualifications authorized him to conclude that the Morrises suffered from organic or physical damage to the brain. It does not follow that he was authorized to testify as to the medical causation of such damage.

There is no evidence in the record to indicate that Dr. Currie has had any medical training, experience or background. Whether or not the Morrises’ alleged contact with, or inhalation of, Aldrin was a causal factor in their alleged physical condition is a medical question as to which expert medical testimony was necessary. See generally Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200, 204 (2) (345 SE2d 904) (1986); Eberhart v. Morris Brown College, 181 Ga. App. 516 (352 SE2d 832) (1987). This question of medical causation is not a subject within the scope of psychological expertise. “The diagnosis and the causes and effects of diseases and other kindred matters of medical practice form an important field of expert testimony. Except to the extent that the physical condition of a person is open to ordinary observation by persons of common experience, opinion evidence in this field is limited to the opinions of experts — that is, of physicians.” (Internal citations and quotations omitted.) Hyde v. State, 189 Ga. App. 727, 730 (377 SE2d 187) (1988) (special concurrence); see also Georgia Cas. &c. Co. v. Jernigan, 166 Ga. App. 872 (305 SE2d 611) (1983).

It is proper for a psychologist to be allowed to testify to the cause of the plaintiff’s mental disorder, when that cause is within the psychologist’s expertise. See generally Jacobs v. Pilgrim, 186 Ga. App. 260 (367 SE2d 49) (1988); Macon-Bibb County Hosp. Auth. v. Whipple, 182 Ga. App. 195 (355 SE2d 83) (1987). Therefore, if a patient suffers a mental disorder, a psychologist may testify regarding the specific cause if that cause is psychological. If a patient’s mental disorder is of organic etiology, because the psychologist’s training does not include the medical causes of these physical problems, he should not be allowed to testify thereon. In that situation, a psychologist may opine that the psychological state is organic in nature, but any opinion regarding the cause of the physical problem would be outside of the scope of his expertise. See generally Will v. Richardson-Merrell, Inc., 647 FSupp. 544 (S.D. Ga. 1986). Here, the alleged cause, of the Morrises’ condition was not a matter shown to be within Dr. Currie’s psychological expertise and the portions of Dr. Currie’s affidavit regarding causation were properly stricken. See generally Kriewitz v. Savoy Heating & Air Cond. Co., 396 S2d 49 (Ala. 1981); GIW Southern Valve Co. v. Smith, 471 S2d 81 (Fla. App. 2 Dist. 1985).

I believe that the superior court properly exercised its discretion in excluding the affidavit. Macon-Bibb County Hosp. Auth., supra; Anderson v. State, 178 Ga. App. 355 (3) (343 SE2d 411) (1986). Without Dr. Currie’s testimony on the issue of causation, the plaintiffs’ claim for personal injury failed, as did all of the property damage claims based on the potential injury to humans.

Decided July 15, 1991

Reconsideration denied July 31, 1991

Wilson, Strickland & Benson, Warner R. Wilson, Jr., Samuel T. Brannan III, for appellants.

Richard B. Eason, Jr., for appellees.

Turning to the remainder of plaintiffs’ claims, which are traditional property damage claims, I believe that summary judgment was proper only with respect to Susan Morris’ property damage claim. Therefore, I respectfully dissent from that portion of Division 2 of the majority opinion which addresses the release Susan Morris signed.

In my opinion, any claim that Mrs. Morris had for property damage, which is not barred for the reasons stated above, was barred by the release she signed. From my review of the record, I find no evidence of artifice, fraud, or trick such as would void the release and therefore it was binding on Mrs. Morris. The record showed that Mrs. Morris was well educated and that she had ample opportunity to examine the document she signed and that no reason exists for ignoring the effect of such document. See Hudson v. Montcalm Pub. Corp., 190 Ga. App. 629 (1) (379 SE2d 572) (1989); McMullan v. Nichols, 162 Ga. App. 865 (292 SE2d 568) (1982); Riker v. McKneely, 153 Ga. App. 773 (266 SE2d 553) (1980). Further, I find no clear, unequivocal or decisive evidence that there was a mutual mistake here so as to void the release. Compare Fulghum v. Kelly, 255 Ga. 652 (340 SE2d 589) (1986). The release effectively barred all of Mrs. Morris’ claims against Chandler Exterminators, Inc. and its. agents, the other defendants here. See Driscoll v. Schuttler, 697 FSupp. 1195 (N.D. Ga. 1988).

Although I believe that summary judgment on all of Mrs. Morris’ claims was proper, I agree with the majority that a factual issue existed as to whether the release she signed operated to bar the claims of her children and husband and as to whether they had ratified her act. See Rowland v. Lewis, 109 Ga. App. 755 (137 SE2d 387) (1964).

In conclusion, I would affirm the trial court’s order granting the defendants’ motion for summary judgment, except with respect to the claims of traditional property damage of Mr. Morris and the Morris children.

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


author: Carley, Judge. Beasley, Judge, Andrews, Judge,

text:
    A91A0401.
    BERINGAUSE v. FOGLEMAN TRUCK LINES, INC. et al.
    (409 SE2d 524)
   Carley, Judge.

Appellant-plaintiff’s husband was killed when his police car was struck by a truck that was owned by appellee-defendant Fogleman Truck Lines, Inc., and was being operated by appellee-defendant Placide Boucher. Appellant’s wrongful death action was tried before a jury and resulted in a verdict in favor of appellees. She appeals from the judgment entered by the trial court on the jury’s verdict.

1. Appellant enumerates as error the denial of her motions for a directed verdict and for judgment notwithstanding the verdict as to the issue of appellees’ liability.

Pursuant to a plea bargain, appellee Boucher had pled guilty to the criminal offense of homicide by vehicle in the second degree. At the trial of the instant civil action, however, he offered an explanation for his decision to withdraw his original not guilty plea and to accept the plea bargain. See Thompson v. Hill, 143 Ga. App. 272, 275 (3) (238 SE2d 271) (1977). Moreover, there was evidence to authorize a finding that, immediately prior to the collision, appellee Boucher had been confronted with a sudden emergency when the preceding car, which had only one operating brake light, had slowed in apparent reaction to the oncoming convoy of vehicles in which appellant’s decedent was a participant. “The rule of sudden emergency is that one who in a sudden emergency acts according to his best judgment, or who because of want of time in which to form a judgment, acts in the most apparently judicious manner, is not chargeable with negligence. [Cits.]” Barlow v. Veber, 169 Ga. App. 65, 66 (1) (311 SE2d 501) (1983). “ ‘ “Whether an emergency existed or not, that issue, like all questions of diligence, negligence, contributory negligence and proximate cause except in plain and indisputable cases, was a question for determination by the jury.” (Cit.)’ [Cit.]” Barnebee v. Shasta Beverages, 184 Ga. App. 435, 436 (361 SE2d 704) (1987). Likewise, the record demonstrates the existence of a jury question as to whether the proximate cause of the collision was the negligent failure of appellant’s decedent to have avoided it. “[0]ne who becomes aware of the negligence of another, or in the exercise of ordinary care should have become aware of it under circumstances where he could avoid it is himself guilty of negligence in failing to exercise ordinary care to avoid the negligence of the other party.” Anderson v. Williams, 95 Ga. App. 684, 686 (4) (98 SE2d 579) (1957). “The question of whether or not [appellant’s decedent] failed to maintain a reasonable and proper lookout ahead which would have allegedly enabled him to avoid the consequences of [appellee Boucher’s] negligence [was for the] jury. ‘ “What is ‘a reasonable lookout’ depends on all the circumstances at the time and place.” ’ [Cit.] . . . [I]ssues of negligence should not be dealt with by summary adjudication but should be returned to the rightful province of the jury.” Findley v. McDaniel, 158 Ga. App. 445, 447 (1) (280 SE2d 858) (1981).

It follows that, notwithstanding appellee Boucher’s guilty plea, the trial court correctly denied appellant’s motions for a directed verdict and judgment n.o.v. as to the issue of appellees’ liability. See Williams v. Calhoun, 175 Ga. App. 332 (333 SE2d 408) (1985). Compare Glenn v. Hutcheson, 194 Ga. App. 12 (389 SE2d 523) (1989).

2. As a jury question existed with regard to the applicability of the principle of sudden emergency, the trial court did not err in charging on that principle.

3. Likewise, the existence of a jury question as tQ the negligence of appellant’s decedent in failing to avoid the collision authorized the trial court to charge on that issue.

4. Appellant enumerates as error the trial court’s giving of a charge on assumption of the risk. Appellees urge that the giving of the charge was authorized by the evidence that appellant’s deceased voluntarily participated in the convoy.

Assumption of risk “assumes that the actor, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.” Whitehead v. Seymour, 120 Ga. App. 25, 28 (4) (169 SE2d 369) (1969). However, “[i]t is not true that in any case where the plaintiff voluntarily encounters a known danger he necessarily consents to any future negligence of the defendant. A pedestrian who walks across the street in the middle of a block, through a stream of traffic travelling at excessive speed, cannot by any stretch of the imagination be found to consent that the drivers shall not use care to watch for him and avoid running him down. On the contrary, he is insisting that they shall. This is contributory negligence pure and simple; it is not assumption of risk. . . . [T]he plaintiff has exposed himself to the risk of future harm, but he has not consented to relieve the defendant of any future duty to act with reasonable care. This is a distinction which has baffled a great many law students, some judges, and unhappily a few very learned legal writers.” (Emphasis supplied.) Prosser & Keeton, The Law of Torts, § 68, p. 485 (5th ed. 1984).

Accordingly, appellant’s deceased may have exposed himself to the risk of future harm by his participation in the convoy. However, his participation in the convoy cannot, “by any stretch of the imagination,” be found to evince his “consent” that other drivers not use care to watch for him and avoid hitting his vehicle. On the contrary, by his use of flashing emergency lights, he was insisting that the other drivers use care to watch for him and avoid hitting his vehicle and the other vehicles in the convoy. Thus, participation by appellant’s deceased in the convoy might demonstrate his contributory negligence, but it would not evidence his assumption of the risk of being hit in his own lane of traffic by a swerving truck.

In order for appellant’s deceased to have assumed the risk of being struck by appellees’ truck, there must be evidence that, after the truck had swerved into his lane of traffic, he had then made a conscious. and voluntary decision to proceed and risk a head-on collision. It would be only then that appellant’s deceased had knowledge of the risk of being hit by appellees’ truck. “ ‘Knowledge of the risk is the watchword of assumption of risk.’ Under ordinary circumstances the plaintiff will not be taken to assume any risk of either activities or conditions of which he has no knowledge. Moreover, he must not only know of the facts which create the danger, but he must comprehend and appreciate the nature of the danger he confronts. ‘A defect and the danger arising from it are not necessarily to be identified, and a person may know of one without appreciating the other.’ Knowledge of the general danger may not be enough, and some courts require knowledge of the specific risk that caused the plaintiff’s harm. The standard to be applied is, in theory at least, a subjective one, geared to the particular plaintiff and his situation, rather than that of the reasonable person of ordinary prudence who appears in contributory negligence. If, because of age or lack of information or experience, he does not comprehend the risk involved in a known situation, he will not be taken to consent to assume it. His failure to exercise ordinary care to discover the danger is not properly a matter of assumption of risk, but of the defense of contributory negligence.” Prosser & Keeton, The Law of Torts, § 68, p. 487 (5th ed. 1984).

There is evidence that appellant’s decedent may have been negligent in failing to have avoided the collision. However, there is no evidence to authorize a finding that appellant’s decedent, with full knowledge that appellee Boucher had swerved across the roadway into the lane of on-coming traffic, had nevertheless elected to proceed and had voluntarily assumed the risk of a head-on collision. To the contrary, the undisputed evidence shows that appellant’s decedent had attempted to avoid the impending collision. If, in the exercise of ordinary reasonable care for his own safety, appellant’s decedent could and should have discovered the danger before he actually did and could and should have avoided the collision, then he would have been contributorily negligent, but he would not have assumed the risk. “ ‘In working out the distinction the courts have arrived at the conclusion that assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of reasonable conduct, however unwilling or protesting the plaintiff may be.’ ” Roberts v. King, 102 Ga. App. 518, 521 (1) (116 SE2d 885) (1960). To have applied the doctrine of assumption of the risk where, as here, appellant’s decedent was struck in his own lane of traffic by a swerving truck, “would require that whenever one drives a motor vehicle on any street or highway he would be subject to the doctrine of assumption of the risk. This is simply beyond the meaning of the [doctrine].” Myers v. Boleman, 151 Ga. App. 506, 510 (3) (260 SE2d 359) (1979).

The error in giving the unwarranted charge was not harmless. The evidence did not demand a verdict for appellees, and the jury may well have returned its verdict for appellees on the erroneous premise that the death of appellant’s decedent was somehow the result of his own voluntary assumption of the risk. Accordingly, the judgment must be reversed and a new trial held. “Assuming that the evidence presented at the retrial ... is the same as that which was adduced here, no charge on assumption of the risk should be given.” Meacham v. Barber, 183 Ga. App. 533, 537 (3) (359 SE2d 424) (1987).

5. The trial court charged the jury that appellees “further allege that [appellant’s] decedent . . . was negligent in failing to properly utilize emergency lights. . . .” The giving of this charge is enumerated as error.

There is evidence that appellant’s decedent was utilizing the emergency lights on his vehicle in connection with his participation in the convoy. However, there is no evidence to authorize a finding that, in doing so, he acted negligently. It appears that the only role that the emergency lights in specific and that the convoy in general may have played in the actual collision is that the emergency lights and convoy apparently caused the driver who was preceding appellee Boucher’s truck to slow his vehicle. Thus, the emergency lights and convoy may have been the original precipitating factor in the creation of the sudden emergency which appellee Boucher ultimately confronted when the preceding driver slowed. However, the mere employment of emergency lights in connection with participation in the convoy would not be an act of contributory negligence on the part of appellant’s decedent. The jury could find that the employment of emergency lights was distractive, but not negligently so.

It follows that the charge regarding appellees’ “contention, unsupported by the evidence, was not accurate. Perhaps this alone might not require a new trial, but on a new trial the presiding judge should omit a statement which might be injurious to [appellant], if the evidence does not warrant it.” Georgia & Fla. R. v. Thigpen, 141 Ga. 90, 95 (3) (80 SE 626) (1913).

6. Appellant’s remaining enumerations of error relate to the trial court’s charge or recharge. These enumerations need not be specifically addressed as they either relate to matters not likely to recur at retrial or have no merit for reasons previously discussed in this opinion.

Judgment reversed.

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

Beasley, Judge,

dissenting.

1. I respectfully dissent because the trial court did not err in charging the jury on assumption of the risk, the ruling on which is made in Division 4 of the majority opinion.

The court’s charge, which was nearly verbatim the pattern charge, was: “When a person knowingly and voluntarily takes a risk of physical injury, the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety, he or his predecessor cannot hold another liable for injuries proximately caused by such action even though the injuries may be in part attributable to the negligence of such other person.”

Defendants’ theory with respect to this principle was not that plaintiff’s decedent failed to avoid the risk when the tractor-trailer swerved across the roadway into his lane. I agree that the liability principle which applies at that time is avoidance, not assumption. The distinction is important as the two concepts have different meanings and bear different consequences. For one thing, assuming the risk is a complete bar to recovery. Atlantic Coast Line R. Co. v. Street, 116 Ga. App. 465, 466 (1a) (157 SE2d 793) (1967). See Newman v. Collins, 186 Ga. App. 595, 596 (1a) (367 SE2d 866) (1988) (physical precedent).

Defendants’ theory, on the other hand, was that plaintiff’s decedent created, or helped to create, a hazardous situation and then participated in it with knowledge that it was causing danger, thus assuming the risk of injury to himself. The hazardous situation was the conducting of a convoyed caravan of two buses and three campus police cars down a two-lane highway, straddling the occasional passing lane so no other vehicles could intervene or pass, sometimes exceeding the speed limit, and using flashing blue lights on the lead and last vehicles, the decedent’s being the last. There was evidence that this operation prompted some oncoming vehicles which were using the highway to stop or slow or pull off as the caravan travelled the more than 20-mile route. This reaction of oncoming vehicles was observable to drivers of vehicles behind the caravan, who were blocked by it from passing. The danger was in causing other vehicles to react to the caravan, which reactions in turn endangered others including plaintiff’s decedent. This is exactly what happened.

There was evidence that, in essence, a white car traveling in front of the tractor-trailer suddenly stopped on the highway when it came upon the caravan, prompting the defendant driver of the tractor-trailer to brake and leading ultimately to the collision. The question is whether the evidence was sufficient to present for jury consideration the defendants’ theory that a hazard or danger was created by the caravan and its time and manner of operation, including the use of flashing blue lights on the police cars, when other traffic was proceeding towards it and behind it on the roadway, and that the policeman assumed the risk of injury to himself by participating in what he knew or should have known was an unnecessarily hazardous activity.

“Assumption of risk in its simplest and primary sense means that the plaintiff has given his express consent to relieve the defendant of an obligation of conduct toward him and to take his chance of injury from a known risk. ‘The result is that the defendant is simply under no legal duty to protect the plaintiff . . .’ ‘assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it’. . . the basis of the doctrine of assumption of risk is that a party assumes the risk of danger which he knows and appreciates or that the law will hold that he does know and appreciate.” Roberts v. King, 102 Ga. App. 518, 521 (1) (116 SE2d 885) (1960). “In order for a defendant to invoke the doctrine of assumption of the risk it must be established that the plaintiff deliberately chose an obviously perilous course of conduct and fully appreciated the danger involved. [Cit.]” Owens-Illinois, Inc. v. Bryson, 138 Ga. App. 78, 79 (225 SE2d 475) (1976).

The majority concludes as a matter of law that the convoyed caravan did not constitute a danger or hazard posing a risk, such that assumption of the risk can apply. But the situation is not subject to a legal conclusion that it did not constitute a danger or hazard. There was some evidence that it did. This included uncontested evidence that flashing blue lights were in use on the police vehicles including the decedent’s, which the jury could find inferred to oncoming traffic that an emergency existed. See in this connection OCGA § 40-6-6. The question of whether the caravan created a danger is one of fact for the jury to decide, not the appellate court. See, for example, Center Chemical Co. v. Parzini, 234 Ga. 868 (218 SE2d 580) (1975); Parzini v. Center Chemical Co., 136 Ga. App. 396, 399 (6) (221 SE2d 475) (1975). “It is the general law of this state that questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly issues for jury resolution, and a court should not remove the issue from the jury except in plain and indisputable cases. [Cit.]” Campbell v. Forsyth, 187 Ga. App. 352, 355 (1) (370 SE2d 207) (1988). This general law embraces the defense of assumption of risk, Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832, 836 (331 SE2d 899) (1985), which like the questions of negligence, diligence, and contributory negligence involves measurements of behavior. The situation in the present case is not plain and indisputable.

Decided May 15, 1991

Reconsideration denied July 31, 1991

C. Lawrence Thompson, Fletcher Thompson, for appellant.

Alembik, Fine & Callner, Lowell S. Fine, G. Michael Banick, for appellees.

The doctrine of assumption of risk is applicable to a self-created danger, such as in this case, as well as to one created by a third party. An example of the former is found in Newman v. Collins, supra, and an example of the latter appears in Deere & Co. v. Brooks, 250 Ga. 517 (299 SE2d 704) (1983).

“ ‘A charge is proper if there is any evidence authorizing it.’ Joyce v. City of Dalton, 73 Ga. App. 209 (2) (36 SE2d 104) (1945).” Kent v. Henson, 174 Ga. App. 400, 402 (2) (330 SE2d 126) (1985). The court did not err in giving the charge.

2. With respect to Division 5, the court’s instruction to the jury regarding merely what defendants contended in their defense is not reversible error in this case, if error it was, which I cannot concede. The defendants had requested a charge concerning improper use of emergency lights, but the trial court did not give it.

Moreover, when the jury during its deliberations requested recharge on certain points, counsel for plaintiff stated: “We would ask that you also give the same charge you gave yesterday with regard to the flashing blue lights in that their question touches on the negligence of the caravan [which] would necessarily indicate they have some question about that and I think the flashing blue lights is the negligence of the caravan.” The court refused to do so. Having specifically asked for it to be repeated, appellant cannot complain on appeal that it was given the first time.

Andrews, Judge,

dissenting.

I must respectfully dissent. The majority’s analysis by label (assumption of risk) is inappropriate and incorrect. By whatever label, the charge at issue correctly states a principle of Georgia law. Southland Butane Gas Co. v. Blackwell, 211 Ga. 665 (88 SE2d 6) (1955). There was evidence to support the jury’s application, if it so chose, of the rule. Accordingly, it was not error for the trial judge to give the charge.

I join in Judge Beasley’s dissent with respect to Division 5. I am authorized to state that Presiding Judge Banke joins in this dissent.


author: Birdsong, Presiding Judge. Cooper, Judge,

text:
    A91A0407.
    O’DONNELL v. THE STATE.
    (409 SE2d 579)
   Birdsong, Presiding Judge.

Frank Patrick O’Donnell appeals his conviction of the offense of trafficking in cocaine.

At approximately 1:00 a.m. on March 24, 1990, while conducting a routine patrol of the rest area on northbound Interstate 75 just south of Calhoun, Georgia, Georgia State Patrol Trooper, Michael J. Ralston, observed appellant’s vehicle, a Ford Bronco with Illinois license plates, parked in the rest area. Trooper Ralston noticed the Bronco several more times throughout the early morning hours, always in the same parking place. At about 6:45 a.m. when Trooper Ralston returned to the rest area to assist a “deputy” on an unrelated matter, he again noticed the vehicle and decided to check on the occupant or occupants in the vehicle to determine their “well-being.” Trooper Ralston looked in the window of the Bronco and observed appellant asleep in the rear seat of the vehicle. He tapped on the window until appellant sat up and rolled down the window, at which time Trooper Ralston explained that he wanted to be sure appellant was physically well because in the past there had been people who had heart attacks, became ill, or had carbon monoxide poisoning. After satisfying himself that appellant was all right, Trooper Ralston asked appellant if he would mind providing him with identification. After appellant provided Trooper Ralston with his Indiana driver’s license, Trooper Ralston inquired if appellant owned the vehicle, and upon finding that he did not, requested to see the vehicle’s registration. The registration showed that the vehicle was registered to Plaza Limousine Service in Chicago. Trooper Ralston explained to appellant that due to prior occurrences involving stolen vehicles, he would have to investigate further to determine whether appellant had lawful possession of the Bronco. Appellant told the trooper that the vehicle belonged to his friend Roger Sticken, the owner of Plaza Limousine Service, and that Sticken had allowed appellant to borrow the vehicle for a couple of weeks while on vacation. The trooper requested and appellant provided a number in Florida where Sticken could be reached. After Trooper Ralston repositioned his patrol car perpendicular to the rear of appellant’s vehicle, but in a manner so appellant’s vehicle could be backed out if needed, the trooper attempted to have his dispatcher reach the registered owner of the vehicle. When the dispatcher called the telephone number provided by appellant, Sticken was not home and only his answering machine responded. Because appellant did not know the number of Plaza Limousine Service in Chicago, Trooper Ralston had the dispatcher call Chicago telephone information for the number of the company; and, although the 1990 Yellow Pages for Chicago did have an advertisement for the company, Trooper Ralston testified that the information operator was unable to find a listing for Plaza Limousine Service. The investigation continued for approximately 20 minutes during which time the trooper retained appellant’s driver’s license and the vehicle registration. While Trooper Ralston was waiting for the results of the check, he allowed appellant to use the rest room, although the transcript indicates the “deputy” who had remained in the rest area was asked to inform Ralston when appellant “came out” of the rest room so that appellant could not walk up behind Ralston undetected. Construing the evidence of record and drawing all reasonable inferences therefrom to support the verdict, it appears appellant was allowed to visit the rest room unaccompanied.

When appellant came back from the rest room, Trooper Ralston returned his license and the vehicle registration. Although appellant was not then informed that he was free to go, neither did he ever ask or attempt to leave the area. Appellant was asked for his consent to search the vehicle, which he agreed to verbally and in writing. Approximately 23 minutes had lapsed from the time Trooper Ralston first made contact with appellant until the time the consent form was presented and signed.

During the search, Trooper Ralston found 1,995 grams of cocaine in the left rear quarter panel of the vehicle. Appellant claims he had no knowledge of the cocaine. Held:

1. In considering the legality of a search, this court can consider all relevant evidence of record, including that adduced at the suppression hearing as well as at trial. Jones v. State, 187 Ga. App. 421, 422-423 (370 SE2d 784). We first consider appellant’s argument that he was “seized” at the time Trooper Ralston requested and retained his license and vehicle registration after the trooper had ascertained that appellant was physically well. “In determining whether a given contact between a police officer and a citizen violated a defendant’s Fourth Amendment rights, the court must first determine whether the encounter was a ‘seizure’ within the meaning of the Fourth Amendment. See United States v. Mendenhall, 446 U. S. 544, 553 (100 SC 1870, 1876, 64 LE2d 497) (1980) (Stewart, J.) (with Rehnquist, J., concurring). The Fourth Amendment’s proscription against unreasonable searches and seizures governs all seizures of the person, ‘including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U. S. 721 [89 SC 1394, 22 LE2d 676] (1969); Terry v. Ohio, 392 U. S. 1, 16-19 [88 SC 1868, 20 LE2d 889] (1968).’ United States v. Brignoni-Ponce, 422 U. S. 873, 878 (95 SC 2574, 45 LE2d 607). ‘The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but “to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” (Cit.)’ United States v. Mendenhall, supra at 553-554. In distinguishing between an intrusion amounting to a ‘seizure’ of the person and an encounter that intrudes upon no constitutionally protected interest, we adopt that standard proposed by Justice Stewart in United States v. Mendenhall, supra at 554: ‘(A) person has been “seized” within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” Moran v. State, 170 Ga. App. 837, 839-840 (318 SE2d 716).

“In other words, the ‘Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, brief “seizures” that must be supported by reasonable suspicion, and full-scale arrests that must be supported by probable cause. (Cits.)’ [Cit.] Factors determinative of whether or not an intrusion or ‘seizure’ has occurred ‘include [but is not limited to] the lack of interference with the individual’s progress, ascertaining whether the individual is willing to cooperate with police before making further inquiries, no display of official authority beyond a statement that the person stopping the individual is a law enforcement officer, and conducting the encounter in an appropriately deferential manner to avoid causing the individual . . . anxiety and fear. . . .’ [Cit.]” Allen v. State, 172 Ga. App. 663, 665 (324 SE2d 521).

In the present case, we conclude that the initial approach of Trooper Ralston to the vehicle and his subsequent inquiry as to the appellant’s well-being did not constitute a Fourth Amendment seizure. At most there was a police-citizen verbal encounter involving no coercion or detention within the meaning of Verhoeff v. State, 184 Ga. App. 501, 503 (2) (362 SE2d 85).

The record conclusively establishes that appellant was not initially stopped and detained by Trooper Ralston for any purpose whatever. Appellant was stopped of his own volition, and was found lying in the back seat area of a parked car. Rather than detaining appellant in any fashion, Trooper Ralston merely approached the stationary appellant to inquire as to his physical well-being. After ascertaining appellant was not in the throes of a medical emergency, Trooper Ralston asked if appellant would “mind” presenting identification; appellant voluntarily cooperated by presenting his Indiana driver’s license. We find that under the attendant circumstances this routine-type traffic inquiry was not arbitrary, harassing, or coercive. And considering appellant had voluntarily stopped in a public rest area, parked, and laid down in the vehicle late at night, causing Trooper Ralston to have a legitimate concern primarily regarding his medical status but also because signs prohibiting overnight parking in the rest area apparently were being ignored, it was not unreasonable within the meaning of the Fourth Amendment for Trooper Ralston thereafter to initiate promptly a routine and limited inquiry to determine appellant’s identity. In the case at bar, appellant was not detained and his movement impaired; rather, appellant was merely approached while voluntarily stopped and, after his safety was ascertained, appellant was asked routine identification questions in a minimally intrusive manner, which the record reflects he answered readily and without protest. In such circumstances, the validity of an officer’s initiated investigative or protective conduct is determined in each case “ ‘[b]y balancing the extent of the intrusion against the immediacy and importance of the interest in crime prevention or law enforcement which is sought to be advanced.’ ” See Arena v. State, 194 Ga. App. 883, 886 (1) (392 SE2d 264). We conclude Trooper Ralston’s conduct in asking appellant if he would “mind” providing the routine information requested did not, under these circumstances, amount to an intrusion upon any constitutionally protected interest.

. As a result of this brief and virtually unintrusive encounter, the vehicle was found not to be owned by appellant but based on the vehicle registration produced by appellant, registered to a limousine service in Chicago, Illinois. After hearing appellant’s volunteered ex-plánation as to how he came into possession of the vehicle, which included a claim that the vehicle had been loaned to him in Florida by his employer who was described as the owner of the Chicago-based limousine service, Trooper Ralston articulated a reasonable suspicion and need to “investigate further to determine if [appellant] did have legal possession of the vehicle.” At this point appellant’s continued investigation was lawful. For example, “ ‘[a]n authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.’ ” (Emphasis supplied.) Eisenberger v. State, 177 Ga. App. 673, 675 (340 SE2d 232). Thereafter, Trooper Ralston encountered a swiftly developing situation where he was not rapidly able to verify appellant’s account of vehicle ownership; and, at this point, continued inquiry was required to maintain the status quo. Compare Mallarino v. State, 190 Ga. App. 398 (379 SE2d 210) (following a probable cause stop for a traffic violation, appellant was detained 33 minutes from time of stop to consent to search due to a rapidly developing situation requiring additional inquiry, citing United States v. Hardy, 855 F2d 753 (11th Cir.)) “It is recognized that no ‘bright line’ rule or ‘rigid time limitations’ can be imposed in determining whether detention of a person constitutes a mere investigative stop requiring only an articulable suspicion or an arrest requiring the existence of probable cause at its inception. [Cits.]” DiSanti v. State, 190 Ga. App. 331, 334 (378 SE2d 729). While Trooper Ralston was awaiting information through his communications net, appellant went to the rest room, and within a minute or so of his return, he gave both written and oral permission to search.

“ ‘A valid consent eliminates the need for either probable cause or a search warrant.’ ” Bobbitt v. State, 195 Ga. App. 566, 567 (394 SE2d 385). Considering the totality of the circumstances, we find that at the time appellant gave this consent, he was not in a status of illegal arrest and accordingly, there was no taint of his consent to search within the meaning of Lackey v. State, 246 Ga. 331, 333 (271 SE2d 478).

Trooper Ralston testified that appellant was requested to consent to a search of the vehicle and that appellant readily consented both orally and in writing, although he subsequently objected temporarily to the search of his luggage and maintained an objection to the search of his billfold. Appellant, a college graduate with a Bachelor of Science degree, admitted in open court that he has taken a state ethics bar examination, has studied the law, knows about illegal search and seizure, and agreed to sign and did sign the consent to search form because he “did not know there was anything (drugs) in the vehicle.” Under the totality of these circumstances, we find his consent was freely and voluntarily given; and, “[o]nce a voluntary consent is legally obtained, it continues until it either is revoked or withdrawn.” Mallarino, supra at 403. Further, inherent within the denial of this suppression motion is the trial court’s finding that appellant’s consent to search was made voluntarily. Calixte v. State, 197 Ga. App. 723, 725 (399 SE2d 490). Assuming arguendo a question of credibility had existed regarding the voluntariness of the consent to search, “[i]nsofar as the trial court’s ruling reflects a resolution of this question of credibility in favor of the State, we find no error as such is supported by the evidence.” Bobbitt, supra.

In view of our determination, we need not decide whether appellant had standing to challenge the search of the vehicle when he claimed it had been loaned to him by a friend and that he had no knowledge of the drugs concealed within the quarter panel thereof. Compare United States v. McBean, 861 F2d 1570 (11th Cir.)

2. Appellant asserts the trial court erred by allowing the District Attorney’s investigator to give his “guess” that a document found in appellant’s possession and introduced in evidence “was ‘the way people who are involved in the distribution of drugs keep records of who owes them money.’ ” Reviewing that portion of the trial transcript pertaining to this witness (Ingram v. State, 178 Ga. App. 292, 293 (1) (342 SE2d 765)), we find the witness was duly qualified and testified as an expert witness under OCGA § 24-9-67, which provides: “The opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.” (Emphasis supplied.) The testimony of the investigator involved a question of “trade,” particularly concerning the procedure used in the illegal drug distribution trade in keeping records of accounts due and owing. Although the witness did affirmatively acquiesce on cross-examination to the characterization that his opinion was based on a “guess,” the record also reflects that the witness had based his answer on his experience as a criminal investigator who had collected and viewed evidence found in the possession of people involved in drug transactions in dozens if not hundreds of occasions. Moreover, it is not determinative of opinion admissibility that the expert witness was not called upon by the State to recite the facts on which his opinion is based. “When a witness is qualified as an expert, it is not necessary that he state the facts on which his opinion is based, but he may do so.” Braddy v. State, 172 Ga. App. 386, 387 (1) (323 SE2d 219), aff’d State v. Braddy, 254 Ga. 366 (330 SE2d 338). And when, as here, a witness has been duly qualified as an expert witness, “it was within the discretion of the trial court to allow [in evidence the witness’ statements that the document was commonly the way people involved in drug distribution keep records of who owes them money] even if the statements were conclusory.” Ingram, supra at 293. It has not been shown that the trial court abused its discretion in admitting the expert witness’ conclusory opinion in evidence.

Judgment affirmed.

McMurray, P. J., Banke, P. J., Pope, Beasley and Andrews, JJ., concur. Sognier, C. J., Carley and. Cooper, JJ., dissent.

Cooper, Judge,

dissenting.

In the present case, I respectfully dissent from the majority because I conclude that although the initial approach of Trooper Ralston to the vehicle and his subsequent inquiry as to the appellant’s well-being did not constitute a Fourth Amendment seizure, once the trooper ascertained that the appellant was physically well, the events following that initial questioning — the trooper’s request for and retention of appellant’s driver’s license and vehicle registration without indicating that appellant could request their return; the trooper’s involvement of the deputy trooper in the investigation; the repositioning of the patrol car perpendicular to appellant’s vehicle — “transformed what may have been a consensual exchange into a situation in which ‘ “a reasonable person would have believed that he was not free to leave.” ’ [Cit.] These combined actions by the trooper went well beyond what an average citizen would expect from a vehicle ‘safety check.’ ” United States v. Jefferson, 906 F2d 346, 350 (8th Cir. 1990). See also Schmidt v. State, 188 Ga. App. 85, 87 (372 SE2d 440) (1988). I reject the majority’s contention that appellant’s compliance with the trooper’s request for his driver’s license and vehicle registration was a gesture of voluntary cooperation. The transcript is void of any testimony which would suggest that Trooper Ralston offered the appellant the opportunity to cooperate before the trooper began his investigation. Therefore, I conclude that appellant was seized for Fourth Amendment purposes when the trooper, after ascertaining the well-being of appellant, continued investigatory contact with appellant by requesting appellant’s driver’s license and vehicle registration.

Having determined that a seizure of appellant occurred, I further conclude that the seizure was not “justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. [Cits.]” Evans v. State, 183 Ga. App. 436 (2) (359 SE2d 174) (1987). The only basis presented at the suppression hearing for Trooper Ralston’s decision to request identification from appellant and investigate further the ownership of the vehicle, was the trooper’s belief that appellant manifested signs of nervousness, one of the general characteristics of a drug trafficker. I can find no testimony in the record which would provide an objective basis for Trooper Ralston’s belief that the vehicle in which appellant was traveling was stolen or that appellant was engaged in other unlawful activity. The majority states that upon determining that the vehicle was not registered to appellant, Trooper Ralston had articulated a reasonable suspicion to investigate further. However, I feel that the seizure occurred at the time Trooper Ralston requested appellant’s driver’s license and registration, and therefore the reasonableness of that seizure must be determined by the information the trooper possessed at that time. That Trooper Ralston may have developed an articulable suspicion after the initial seizure is merely an “exploitation” of the illegality. See Wong Sun v. United States, 371 U. S. 471 (83 SC 407, 9 LE2d 441) (1963). Under the circumstances present here, I determine that there was an insufficient factual or evidentiary basis to give rise to probable cause or an articulable suspicion to justify the seizure of appellant. See Tarwid v. State, 184 Ga. App. 853, 855 (363 SE2d 63) (1987); DiSanti v. State, supra at 334.

Mallarino v. State, 190 Ga. App. 398 (379 SE2d 210) (1989), cited by the majority is distinguishable from the present case because that case involved a stop incident to a traffic violation. This court concluded in Mallarino that Trooper Ralston’s decision to detain the defendant was justified because the defendant had been driving in excess of the speed limit on the interstate, and the trooper was clearly authorized to investigate the traffic violation. My review of other decisions by this court which uphold detentions by Trooper Ralston, reveals that in each case, this court affirmed the trooper’s decision to seize the defendant because each seizure was incident to the investigation of an alleged traffic violation. See, e.g., Lombardo v. State, 187 Ga. App. 440 (370 SE2d 503) (1988) (speeding); Partridge v. State, 187 Ga. App. 325 (370 SE2d 173) (1988) (speeding); Spencer v. State, 186 Ga. App. 54 (366 SE2d 390) (1988) (weaving); Whisnant v. State, 185 Ga. App. 51 (363 SE2d 341) (1987) (speeding); Steward v. State, 182 Ga. App. 659 (356 SE2d 890) (1987) (speeding).

Decided July 16, 1991

Reconsideration denied July 31, 1991

Cook & Palmour, Bobby Lee Cook, Bailey & Bearden, J. Lane Bearden, for appellant.

Darrell E. Wilson, District Attorney, for appellee.

Further, I agree with appellant’s contention that his voluntary consent to the search of the vehicle was tainted by the illegal stop and detention. “[I]n order to eliminate any taint from an involuntary seizure or arrest, there must be proof both that the consent was voluntary and that it was not the product of the illegal detention. Proof of a voluntary consent alone is not sufficient. The relevant factors include the temporal proximity of an illegal seizure and consent, intervening circumstances, and the purpose and flagrancy of the official misconduct. [Cits.]” Brown v. State, 188 Ga. App. 184, 187 (372 SE2d 514) (1988).

I find that there was not a significant lapse of time between the unlawful detention and the appellant’s consent (approximately 23 minutes), that no intervening circumstances, dissipated the effect of the unlawful detention (although his driver’s license and the vehicle registration were returned to appellant after he came back from his trip to the rest room, appellant was never told that he was free to leave), and that Trooper Ralston’s conduct had no arguable legal basis. Accord Tarwid v. State, supra at 856; Brown v. State, supra at 187. Compare, Donner v. State, 191 Ga. App. 58 (380 SE2d 732) (1989), where the taint of a questionable detention was attenuated by the defendant’s voluntary decision to remain in the rest area for one hour and ten minutes after he was told that he was free to go. Accordingly, I dissent from the majority’s opinion. I conclude instead that the trial court erred in denying defendant’s motion to suppress evidence.

I am authorized to state that Chief Judge Sognier and Judge Carley join in this dissent.


author: Andrews, Judge. Sognier, Chief Judge,

text:
    A91A0457.
    TORGERSEN v. THE STATE.
    (410 SE2d 40)
   Andrews, Judge.

Howard Roy Torgersen, Jr., was indicted for murder and convicted by a Chatham County jury of involuntary manslaughter in the death of his wife, Diane Torgersen.

At trial, the State’s case was founded on the testimony of Dr. Check, the pathologist who performed the autopsy on Ms. Torgersen, who opined that the injury which caused her death resulted from a forceful blow to the abdomen. The defense theory was that Ms.. Torgersen’s death resulted from a blow she received when she accidentally fell on a bedpost. This theory was supported by the testimony of Torgersen, several of his relatives and friends, and a medical expert witness, as well as by evidence of Ms. Torgersen’s alcoholism and physical condition.

Ms. Torgersen’s medical condition and the cause of her death were not in dispute. Her death resulted from shock caused by extensive bleeding into the abdominal cavity from a ruptured bladder. At the time of her death, Ms. Torgersen, who had been an alcoholic for a number of years and had been hospitalized twice for alcohol treatment, had a blood alcohol level of .29 grams percent. As a result of chronic alcohol abuse, at the time of her death, Ms. Torgersen had liver cirrhosis, poor muscle tone, and poor blood clotting function, and weighed only 85 pounds.

The State’s case established that the tear to Ms. Torgersen’s bladder, which resulted in her death, was caused by a blow. Dr. Check testified that the amount of force required to cause this injury was more than would result from the fall of an 85-pound woman. He concluded that it was improbable that a fall caused her injury since a more forceful blow was indicated, though he conceded that the defense theory of how the injury occurred was a “possibility.”

The State’s theory that Torgersen killed his wife was also supported by the signs of constant abuse on Ms. Torgersen’s body, as testified to by Dr. Check. He opined that her condition was that of “someone who’s been beaten over a prolonged period of time.” At the time of her death, Ms. Torgersen’s body was covered with bruises, which were graphically depicted in the photographs shown to the jury. Although many of her bruises were old, Dr. Check testified that among her fresh injuries were a hairline skull fracture, which was accompanied by a four-inch bruise above her left eye, and large bruises on her left shoulder, left hip, and the right side of her abdomen, where she had also suffered a fractured rib. Dr. Check testified that the only object which was consistent with the shape of the bruise on her forehead was the butt of Mr. Torgersen’s gun which was found under the Torgersens’ bed. A forensic scientist testified that there were spots of blood on the same revolver. Though no witnesses had ever seen Mr. Torgersen strike his wife, a friend testified that she had seen him drag Ms. Torgersen from a room.

During the State’s case, additional evidence was adduced that in addition to the blood on the gun, blood was also found on the carpet in the Torgersens’ bedroom and hallway, and on the seat of his truck, and that drops of blood were found on the shoes he was wearing the evening of his wife’s death. The detective who executed the search and arrest warrants at the Torgersens’ home the afternoon following the death testified that he found Torgersen and a friend, Frances Jones, at his home cleaning the bedroom and washing the linens, and that he was still wearing bloody clothing. The investigating detective also testified that based on his examination of Torgersen’s clothing, the blood on his pants was not consistent with his explanation that he soiled his pants carrying the decedent to the car.

In support of the theory that Ms. Torgersen had incurred her fatal injury in a drunken fall, the defense introduced the testimony of several relatives and close friends of Torgersen’s, who testified that Ms. Torgersen often drank all day long, frequently to the point of staggering and falling down without making any attempt to brace herself. These witnesses stated that Torgersen always took care of his wife and that they had never seen him strike or threaten his wife.

The defense also presented the testimony of Dr. Van Ham, a trauma surgeon, who viewed the photographs of Ms. Torgersen’s body taken at the autopsy. He stated that in his opinion, Ms. Torgersen’s injuries were caused when she staggered and fell over the footboard of the couple’s bed. He stated that given the amount of alcohol in her blood at the time of her death, it was likely that she could not walk without staggering. He testified that her head injury was not caused by a blow from the gun found at the scene, but instead occurred when she hit her head on the wooden footboard, at which time she ruptured her bladder by falling over the large wooden ball atop the bedpost. In his opinion, it would take “very little” force to rupture the bladder of a person in her physical condition and he found the “generalized blueishness” over her lower abdomen indicated that whatever caused the bladder injury was “bigger than a human fist.”

Despite the defense’s theory of how Ms. Torgersen died, several inconsistencies in the statements Torgersen had made concerning his wife’s death were highlighted at trial. According to the emergency room physician, when Torgersen brought his wife to the hospital at 4:50 a.m. on the date of her death, he stated that she had fallen from bed at 3:00 a.m. and struck her head. In this initial account, Torgersen told the doctor that he had placed her back in bed and then heard her making abnormal sounds which prompted him to take her to the hospital. Torgersen did not explain to the doctor why he had waited over an hour before bringing his wife to the hospital.

Two friends of the Torgersens’ testified that Torgersen had explained that the decedent woke him up with her moaning sounds. The victim’s father also testified that Torgersen told him that at 2:30 a.m., his wife’s groaning had waked him up and he found her lying on; the floor bleeding. Torgersen did not explain how he was able to hear his wife’s moaning in his sleep despite his severe hearing loss, which had, by his own testimony, required “three major ear operations.” These accounts were somewhat inconsistent with the investigating detective’s report that only a few spots of blood were found on the carpet by the bed.

At trial, Torgersen’s account of his wife’s death varied from the statements he had given earlier. He testified that he was awakened not by his wife’s moaning, but by his need to use the bathroom. Torgersen’s trial testimony also included the previously untold fact that when he found his injured wife lying by the bed, she told him she needed to use the bathroom, which he helped her to do. Furthermore, his testimony about the location of his wife’s body when he found her was inconsistent with the theory that she had fallen.

1. Torgersen claims that he is due a new trial because the evidence presented against him was circumstantial and did not exclude every reasonable hypothesis except that of his guilt. We find no error. “Under White v. State, 253 Ga. 106 (317 SE2d 196) (1984), ‘circumstantial evidence must exclude only reasonable inferences and hypothes[e]s and it is not necessary that such evidence be devoid of every inference or hypothesis except that of the defendant’s guilt.’ The evidence was sufficient for a rational trier of fact to have found the appellant guilty of [involuntary manslaughter] beyond a reasonable doubt, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and no new trial was required.” Peppers v. State, 261 Ga. 338 (404 SE2d 788) (1991); see also Harris v. State, 236 Ga. 242, 245 (223 SE2d 643) (1976); Stephenson v. State, 191 Ga. App. 877, 878 (383 SE2d 363) (1989).

“Questions as to reasonableness are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law.” Harris, supra at 245.

There was ample evidence to convict Torgersen, and therefore the trial court’s denial of his motion for new trial was proper.

2. In his second enumeration of error, Torgersen contends that the trial court erred in admitting into evidence certain questions of the investigating detective which were contained in the defendant’s statement. We find this enumeration of error without merit. See generally Watson v. State, 199 Ga. App. 825 (406 SE2d 509) (1991).

Judgment affirmed.

McMurray, P. J., Banke, P. J., Birdsong, P. J., Carley, Pope, Beasley and Cooper, JJ., concur. Sognier, C. J., dissents.

Sognier, Chief Judge,

dissenting.

I respectfully dissent. I conclude the majority has incorrectly applied the principles of review applicable in circumstantial evidence cases when the defendant presents a reasonable hypothesis consistent with innocence.

When the evidence connecting a defendant to the charged crime is circumstantial, to warrant a conviction “the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. “The term ‘hypothesis’ as used in [OCGA § 24-4-6] refers to such reasonable inferences as are ordinarily drawn by ordinary [persons] in the light of their experience in everyday life; the Code section does not mean that the act might by bare possibility have been done by somebody else, but that the State should show to a moral certainty that it was the defendant’s act.” (Punctuation and citations omitted.) Atchison v. State, 181 Ga. App. 351, 352 (352 SE2d 201) (1986). “ ‘When the circumstantial evidence supports more than one theory, one consistent with guilt and another with innocence, it does not exclude every other reasonable hypothesis except guilt and is not sufficient to prove the defendant’s guilt beyond a reasonable doubt.’ [Cit.]” Kreager v. State, 148 Ga. App. 548 (252 SE2d 1) (1978).

As a general rule, the determination whether the circumstances are sufficient to exclude every reasonable hypothesis except that of the defendant’s guilt is made by the jury. Atchison, supra; see Smith v. State, 56 Ga. App. 384, 387 (192 SE 647) (1937). Nonetheless, our courts have long recognized that “where there appears a hypothesis from the evidence, or from the lack of evidence and the defendant’s statement, pointing to the innocence of the accused, and which tested by all human experience is a reasonable one, [an appellate court] may declare it so as a matter of law.” Smith, supra at 387-388. Accord Harris v. State, 236 Ga. 242, 244-245 (1) (223 SE2d 643) (1976) (adopted rule stated in Smith for appellate review of evidence in cases based on circumstantial evidence). While we must review the evidence in a light most favorable to the jury verdict, we must not be blinded by that verdict when a reasonable hypothesis of innocence appears from the evidence or the lack thereof. Solomon v. State, 195 Ga. App. 684, 688 (394 SE2d 570) (1990).

My thorough review of the transcript persuades me this is such a case. While I agree with the majority that there were some inconsistencies in appellant’s explanations of the events that occurred the night of his wife’s death, “the burden of proof on the [S]tate was not only to produce evidence ‘consistent with the hypothesis of guilt,’ but also to produce sufficient evidence to ‘exclude every other reasonable hypothesis save that of the guilt of [appellant].’ [Cit.]” Muckle v. State, 165 Ga. App. 873, 875 (1) (303 SE2d 54) (1983). “[M]ere suspicion is not sufficient to support a conviction.” Id. Given that witnesses for both the State and appellant established that because of her chronic abuse of alcohol, Ms. Torgersen had poor muscle tone, bruised easily, and often drank to the point of staggering or falling down, and considering the evidence of her blood alcohol level at the time of her death together with Dr. Van Ham’s opinion as to the cause of the fatal injury, I find the State did not dispel the reasonable hypothesis that she ruptured her bladder by staggering into and falling over the footboard of her bed.

Decided July 15, 1991

Reconsideration denied July 31, 1991

Duffy & Feemster, Dwight T. Feemster, Ronald K. Thompson, for appellant.

Spencer Lawton, Jr., District Attorney, Lars T. Granade, Assistant District Attorney, for appellee.

“ ‘Hence, the facts in evidence and all reasonable deductions therefrom present two theories, one of guilt and the other consistent with innocence. [In such circumstances], the justice and humanity of the law compel the acceptance of the theory which is consistent with innocence. (Cit.)’ [Cit.]” Kreager, supra at 549. “Where the circumstances of a case are equally compatible with guilt or innocence so that it is just as easy to draw one inference over another, the conviction cannot stand. [Cits.]” Barnett v. State, 153 Ga. App. 430, 431-432 (2) (265 SE2d 348) (1980). I agree with appellant that his testimony and the testimony of his medical expert witness, Dr. Raymond Van Harn, combined with the evidence concerning his wife’s alcoholism and physical condition, established the reasonable hypothesis of accidental death as a consequence of a fall, see Kreager, supra, and accordingly, I would reverse.