text:
    A89A1747, A89A1748.
    MADDEN et al. v. BELLEW et al.; and vice versa.
    (393 SE2d 31)
   Pope, Judge.

Plaintiffs, members of the Madison County Board of Commissioners (hereinafter “Board”), brought suit against William C. Madden, Chairman of the Board, after a dispute arose between the parties over appointment of the county attorney.

The record shows that Lane Fitzpatrick was appointed county attorney in 1985. At that time the Board was composed of two members and a Chairman, all of whom were elected in a county-wide election and all of whom had the right to vote. 1965 Ga. L., p. 2667, §§ 1 & 7. In 1988 the law was amended so as to provide for a five-member Board elected from single member districts, with a Chairman elected from the county at large. 1988 Ga. L., p. 4692, § 1. The Chairman is the only full-time employee of the Board and is authorized to vote only in the event of a tie. Id. at § 2, amending section 7.

The present Board was elected in 1988 and took office in January 1989. One of the Commissioners requested that the county attorney be discussed at the January 24, 1989 meeting of the Board. At that time the Chairman presented some background information on the county attorney and explained the selection process. Specifically, the Chairman stated that the county attorney was selected by the chairman with the approval of the Board and that the position was not approved on an annual basis. The Chairman then recommended that Lane Fitzpatrick be retained as county attorney. This recommendation was defeated by a three-to-two vote.

At the January 28, 1989 meeting of the Board, a member of the audience raised the question of the county attorney. At that time the Chairman indicated that Lane Fitzpatrick was still county attorney because he had not been dismissed for cause. At the March 14 meeting of the Board plaintiffs moved that someone else be elected as county attorney. The Chairman ruled the motion out of order on the basis “that the Board does not have the authority to hire the County Attorney and . . . that Lane Fitzpatrick is the County Attorney . . . until he is dismissed for cause.”

Commissioners Bellew, Berryman and Hutchins instituted the present action on March 15, 1989. On May 8, 1989, the trial court issued an order finding that: 1) the Chairman had the authority to appoint the county attorney with the approval of the Board; 2) the county attorney’s appointment expired simultaneously with the term of office of those who appointed him; and 3) plaintiffs were entitled to $1,600 in attorney fees. Held:

Case No. A89A1748

1. In their cross-appeal plaintiffs contend that the trial court erred in finding that a majority of the members of the Board could not unilaterally hire a county attorney. In relevant part, 1988 Ga. L., p. 4692, § 2, amending section 7 provides as follows: “A majority vote of the entire board will control the determination of all policies of the board. The chairman shall be the executive administrator of all policies of the board and shall be authorized to vote only in cases of a tie. . . . The chairman shall have the authority, with the concurrence and approval of a majority of the members of the board, to employ all personnel and county employees and such clerical help as is necessary, in their judgment, to conduct the affairs of office properly. . . .”

Plaintiffs contend, contrary to the trial court’s holding, that the hiring of a county attorney is a policy decision which can, and must, be accomplished by a majority vote of the entire Board. Pretermitting the question of whether the decision to hire a county attorney is in fact a “policy” decision, we agree with the trial court insofar as it concluded that the Board lacked the authority to “unilaterally” hire a county attorney. Section 7 clearly and unambiguously authorized the Chairman, with the approval and concurrence of a majority of the members of the Board, “to employ all personnel and county employees” as are deemed necessary to conduct county affairs. “Where a general term in one part of a statute is inconsistent with a more specific provision in another part, the latter must govern.” (Citations and punctuation omitted.) Undercofler v. Capital Auto. Co., 111 Ga. App. 709, 716 (143 SE2d 206) (1965). Hence, whether or not the decision to hire a county attorney is a policy decision, the Chairman, and not the Board, is given the power to select the person to fill that position, with the approval of the members of the Board. Consequently, we find no merit to this enumeration.

Case No. A89A1747

2. We also agree, however, contrary to the Chairman’s contentions in Case No. A89A1747, that the term of employment of the county attorney expired upon the expiration of the term of the Chairman and Board who appointed him. To hold otherwise would, in effect, bind all successive county commissioners and chairmen to the choice of their predecessors, until and unless the county attorney was removed for cause (see 1965 Ga. L., p. 2671, § 11) or the Chairman recommended the selection of a new county attorney.

Decided March 14, 1990

Rehearings denied March 26, 1990 and March 28, 1990

E. Freeman Leverett, for appellants.

R. Dale Perry, Hudson & Montgomery, James E. Hudson, for appellees.

“[T]he law prohibits a local governing authority from binding itself or its successors so as to prevent free legislation. OCGA § 36-30-3 (a). Southern Airways v. DeKalb County, 102 Ga. App. 850 (118 SE2d 234) (1960). McElmurray v. Richmond County, 223 Ga. 47 (153 SE2d 427) (1967).” Wilson v. Southerland, 258 Ga. 479, 480 (1) (371 SE2d 382) (1988). Thus the trial court correctly concluded that the term of the previous county attorney expired on January 1, 1990, the date the newly elected commissioners took office.

3. The Chairman also challenges the award of attorney fees in this case. In awarding $1,600 attorney fees to plaintiffs the trial court found that both sides had done an “excellent” job in representing their clients’ interests and acknowledged that each side had been afforded some relief, but justified the award on the basis that a “preponderance” of relief was granted to plaintiffs. It is thus apparent from the trial court’s order that no basis for the award of attorney fees exists in this case (see OCGA § 9-15-14 and OCGA § 13-6-11) and that portion of the trial court’s order must be reversed.

Judgment affirmed in part and reversed in part in Case No. A89A1747. Judgment affirmed in Case No. A89A1748.

Banke, P. J., and Sognier, J., concur.


source: Caselaw Access Project

author: Cooper, Judge. Deen, Presiding Judge,

license: Public Domain

text:
    A89A1853.
    YOUNG et al. v. MARTIN DRILLING & BLASTING, INC. et al.
    (392 SE2d 714)
   Cooper, Judge.

Appellants appeal the dismissal of their case following transfer of the case pursuant to Rule 19.1 of the Uniform Rules for the Superior Courts (URSC).

Appellants brought this action in Fulton County against appellees, who resided in Gwinnett County, and two other defendants, who resided in Fulton County. Appellants obtained a default judgment against one of the appellees, and after the dismissal of both the Fulton County defendants, the case was ordered transferred to Gwinnett County. The transfer order stated “that upon payment of all costs within the time provided in URSC 19.1 this action shall be transferred. . . .” After the case was transferred, the court dismissed the case because appellants failed to pay the costs within 20 days of the transfer as required by Rule 19.1 (G).

1. Rule 19.1 (G) of the URSC provides that when a case is transferred and the plaintiff does not pay the costs within 20 days of billing, the case shall automatically stand dismissed. Rule 19.1 (F) of the URSC provides that the transfer order “shall state that unless plaintiff pays all accrued costs within 20 days of mailing or delivery of the cost bill to plaintiff, the action shall automatically stand dismissed without prejudice.” (Emphasis supplied.) The transfer order entered by the trial court did not contain the mandatory language required by Rule 19.1 (F). The requirement of reasonable notice found in Rule 19.1 (F) should be read as requiring reasonable notice of the transfer, and of the automatic dismissal which will occur if the costs are not paid within 20 days of billing. To allow the order to merely substantially comply with the rule would deprive appellants of their default judgment against one party and their right to pursue a judgment against another. Furthermore, a rule couched in plain and unambiguous language should not be susceptible to “substantial compliance.” See Bible v. Bible, 259 Ga. 418 (383 SE2d 108) (1989). Mere reference to the rule is insufficient to meet the requirement of Rule 19.1 (F) that the order “shall state” that the case will be automatically dismissed if costs are not paid within a certain time, and the trial court erred in dismissing the action for failure to pay costs within 20 days.

2. The appellees’ motion for frivolous appeal is denied.

Judgment reversed.

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

Deen, Presiding Judge,

dissenting.

The majority opinion insists upon strict compliance with Rule 19.1 of the Uniform Superior Court Rules. In doing so, it misapplies the rule of substantial compliance.

Substantial compliance with a uniform rule is sufficient if it does not deprive a party of substantial rights. Sweatman v. State, 181 Ga. App. 474 (1) (352 SE2d 796) (1987). The proper concern is over the deprivation (and not the mere involvement) of substantial rights resulting from a particular execution of a uniform rule. See Houston v. State, 187 Ga. App. 335 (370 SE2d 178) (1988).

In the instant case, the transferring court in Fulton County ordered the case to be transferred “upon payment of all costs by plaintiff within the time provided by URSC 19.1.” The superior court clerk sent a cost bill to the appellants’ attorney on April 2, 1986, but costs were never paid. On May 23, 1988, the clerk re-billed the appellants, and on May 31, 1988, more than two years after the original billing, the appellants paid the costs. Following transferral of the case to Gwinnett County, the trial court dismissed the case for the appellants’ failure to pay costs within 20 days as required by Rule 19.1 of the Uniform Superior Court Rules. In my view, under these circumstances it was not the degree of the trial court’s compliance with Rule 19.1 that caused the deprivation of any substantial rights of the appellants, but the appellants’ own inexcusable neglect to pay their bills.

Decided February 21, 1990

Rehearing denied March 28, 1990

Fortson & Associates, Walter L. Fortson, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, David S. Thomson, Gray, Gilliland & Gold, John B. Austin, for appellees.

I believe that the transferring court’s order, referencing the time requirement provided by Rule 19.1, sufficiently invoked the operation of that Rule, and that the trial court in Gwinnett County properly dismissed the action. Accordingly, I must respectfully dissent.

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


author: Deen, Presiding Judge. Birdsong, Judge,

text:
    A89A1855, A89A1856.
    SABREE v. THE STATE (two cases).
    (392 SE2d 886)
   Deen, Presiding Judge.

Tamar Abdul Sabree and his former wife, Tauheedah Sabree, separately appeal their convictions, in a joint trial, for the offenses of armed robbery and possession of cocaine, marijuana, and codeine. The three drug-related counts arose out of the execution of a search warrant at the couple’s residence, two weeks after the robbery.

On October 30, 1987, the manager of a steak house in Riverdale was robbed in his vehicle in the restaurant parking lot of several thousand dollars. A masked man wearing coveralls with an insignia on the breast, knocked on the manager’s car window and demanded the money, which the manager relinquished when the man produced a gun. The manager saw the robber’s hand and determined he was a black male. The robber entered a silver 1986 or 1987 Nissan Sentra being driven by a black female. Because the vehicle license plate was partially covered, the manager only noticed an “N” or an “H” thereon. He was unable to identify appellants in court but did positively identify coveralls seized in a search of appellants’ residence.

At approximately 8:45 a.m. that morning, another employee noticed a black male and black female standing outside the bathroom door. She had gotten close to the couple, and saw them for approximately three minutes before they left. She identified both appellants in photographic lineups and in court.

Another employee, Mrs. Mitchell, at 10:45 a.m. saw a car in the employees’ back parking lot. After the two occupants told her they were waiting for the restaurant to open, she had her daughter write the vehicle’s tag number, NSW 397. She tentatively identified Tauheedah Sabree in a photo lineup and identified both at trial. Her daughter picked Tauheedah and Tamar from a photo lineup and identified both in court.

The tag number, NSW 397, was registered to Budget Rent-a-Car of Atlanta. The vehicle was located in Budget’s airport parking lot on October 31. The car had been cleaned and gassed. The latest rental application showed the car had been rented at 6:36 a.m. on October 30,1987, by Tauheedah Sabree. That same day, after 1:00 p.m., it was just left at Budget rather than turned in by anyone. Appellant Tauheedah Sabree used her American Express card to rent the car, but listed a false address and place of employment on her application. The rental agent chose two photos from a lineup but favored the photo of Tauheedah Sabree as the woman who had rented the car.

Delta Airline records showed appellants flew from Atlanta to Raleigh-Durham, North Carolina on October 30, 1987, on a 1:48 p.m. flight. The tickets had been purchased with Tauheedah Sabree’s American Express card.

Evidence and testimony concerning appellants’ financial troubles around the time of the robbery were admitted at trial to show motive.

A search pursuant to a warrant was conducted at appellants’ residence on November 17, 1987. Marijuana was located in one of their cars; the coveralls identified as those worn by the robber were found in the master bedroom; tablets containing Schedule III codeine were found in the master bathroom medicine cabinet; an open briefcase on a stand was found in the same bathroom and contained cocaine, a pipe, a roach clip, a razor blade, a mirror, other drug paraphernalia, and many caliber bullets. A shaving kit containing marijuana was also found, as were scales and a syringe. In a chair near the front door was a coat containing a gun wrapped in a mask. The American Express credit card used to rent the car was found in Tauheedah Sabree’s purse. During the search, a detective overheard Tamar Abdul Sabree asking Tauheedah if she had used the credit card to rent the car.

Both Mr. Sabree and Mrs. Sabree were represented by the same appointed trial counsel. On appeal, Mrs. Sabree retains separate counsel. Tamar Abdul Sabree enumerates five errors below; Tauheedah Sabree alleges nine. Held:

1. Both appellants contend the trial court erred in denying their motions to sever the prosecution for the October 30, 1987, armed robbery offense from prosecution of the drug possession charges. Each contends the drug-related offenses were separate and distinct from the armed robbery charge, and the prosecution of the drug-related counts irreparably prejudiced their defense of the armed robbery charge, and vice versa, so that a fair determination of their guilt or innocence of each offense (Isbell v. State, 179 Ga. App. 363 (346 SE2d 857)), could not be made.

In Isbell, supra at 366, we held: “ ‘Offenses may be “joined for trial when they are based (1) ‘on the same conduct’ or (2) ‘on a series of acts connected together’ or (3) on a series of acts ‘constituting parts of a single scheme or plan.’ (Cit.) If offenses are joined for any of these three reasons, the defendant does not have an automatic right of severance; instead, the trial judge may grant severance if it is necessary ‘to achieve a fair determination of the defendant’s guilt or innocence of each offense.’ (Cit.)” ’ ”

The finders of fact, based upon their own experience in the common world, could reasonably infer a connection between the possession of illegal drugs, including cocaine, and the armed robbery which occurred two weeks earlier. The high cost of illegal drugs and the resort of many to crime to finance their use is a circumstance generally known to public consciousness; thus, there was some connecting element between the two types of offenses so as to disentitle appellants to an automatic right of severance. Id. Moreover, a severance could have placed the prosecutions of all offenses, particularly the drug-related offenses, at risk based on the commonality of evidence that would have to be introduced (see Catchings v. State, 256 Ga. 241 (347 SE2d 572)), while on the other hand, the overwhelming evidence implicating both defendants in the armed robbery renders most probably harmless any prejudicial addition of evidence of the discovery of drugs. The trial court did not abuse its discretion in denying the motions to sever.

2. Both appellants contend it was error to admit evidence of their joint and separate bad financial condition for a year prior to the robbery, including evidence of bad checks and overdrawn accounts up to two months before the robbery. This evidence was clearly admissible to show possible motive, intent, or bent of mind, according to the rule of Causey v. State, 154 Ga. App. 76 (267 SE2d 475), as to both the armed robbery and the drug offenses. See, e.g., Dukes v. State, 186 Ga. App. 773 (369 SE2d 257); Pelligrini v. State, 174 Ga. App. 84 (329 SE2d 186). Every act or circumstance serving to elucidate or throw light upon a material issue is relevant. Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 338 (319 SE2d 470). If there were any doubt as to the admissibility of this evidence, it was better admitted, for in general, evidence tending to have any relevance should be admitted, and its weight and credibility left for the jury. Id. The trial court did not abuse its discretion in admitting this evidence. See Lewis v. State, 158 Ga. App. 586, 587 (1) (281 SE2d 331).

3. Further, as to Tamar Abdul Sabree’s second challenge to inadmissible evidence, we find that in fact no prejudicial evidence of his religious affiliations was admitted to the jury.

4. In her appeal, Tauheedah Sabree further contends as to the alleged inadmissible evidence, that the trial court erred in failing to instruct the jury as to what consideration to give to the evidence of “other offenses.” Presumably appellant is referring to the crime of uttering a bad check, but the State did not give evidence of any bad checks as constituting a “crime.” Appellant made no request for limiting instructions; therefore, any such objection is waived on appeal. See Bennett v. State, 187 Ga. App. 234, 235 (369 SE2d 552).

5. The evidence in this case is clearly sufficient to raise the issue of “flight.” See, in general, Lockette v. State, 181 Ga. App. 649 (353 SE2d 585). Certainly evidence of immediate departure from the state or city sets the question before the jury to determine if the sudden departure was due to “ ‘consciousness of guilt or other reasons.’ ” Fowler v. State, 171 Ga. App. 491, 494 (320 SE2d 219).

6. Tamar Abdul Sabree contends he was entitled to a mistrial for prosecutorial misconduct, in that during appellants’ closing argument, the prosecutor interrupted appellants’ counsel’s argument six times.

We find no merit in this enumeration. Appellant Tamar Abdul Sabree cites no authority demanding imposition of the extreme remedy of mistrial for “prosecutorial misconduct.” In any event, this appellant did not move for mistrial until after the jury had retired, thus giving the trial court no chance to correct any prejudice on the spot. See, as to obligations to make motion for mistrial at the time alleged harmful error is committed, Brown v. State, 187 Ga. App. 347 (370 SE2d 203); Floyd v. State, 187 Ga. App. 27, 28 (369 SE2d 316). If no opportunity is given the court to cure such error, it is waived. See Garner v. State, 180 Ga. App. 146 (348 SE2d 690).

Even assuming a motion for mistrial had properly been made, where the conduct of counsel exceeds the bounds of propriety, the trial judge’s broad discretion in the matter will not be curtailed unless that discretion is manifestly abused. Banks v. Lewis, 187 Ga. App. 218, 219 (2) (369 SE2d 537). We do not have a transcript of the entire closing arguments, objections and interruptions, and therefore can make no review sufficient to determine that harmful error occurred.

7. The evidence in this case clearly authorized the jury charge on “conspiracy.” Cunningham v. State, 248 Ga. 835 (286 SE2d 427). Even though a conspiracy is not charged in the indictment, the jury charge is not incorrect where the evidence supports it. Spencer v. State, 180 Ga. App. 498 (349 SE2d 513).

8. Tauheedah Sabree contends the trial court erred in appointing only one lawyer for both defendants at the trial of this case, there being an actual conflict of interest depriving the defendant of effective assistance of counsel.

Specifically, Tauheedah Sabree points at the evidence of drug possession as creating an actual conflict of interest in her representation. She argues, e.g., that all of the marijuana in this case was seized by police from the co-defendant Tamar Abdul Sabree’s shaving kit and from his automobile.

The State replies by saying all the drug evidence was in such plain view that it could not have been concealed from Tauheedah, and that there was no evidence appellants’ vehicle belonged solely to Tamar Abdul. We agree. The house and vehicles occupied and used by Tauheedah Sabree and her husband were so full of drugs that no reasonable doubt could be raised that she was in joint actual or constructive possession of the illegal drugs as charged. If any evidence existed by which a separate counsel could “shift blame” and exonerate Tauheedah, it was her duty at least to raise such evidence on motion for new trial to prove actual harm; otherwise, we can find no conflict of interest justifying a reversal of this guilty verdict. Acierno v. State, 176 Ga. App. 600 (337 SE2d 39); see Rautenberg v. State, 178 Ga. App. 165, 169 (342 SE2d 355); and see Dill v. State, 222 Ga. 793 (1) (152 SE2d 741), as to defendant’s duty to show harm in any error. Furthermore, neither of the Sabrees nor the appointed counsel ever objected to the joint representation at trial.

9. The appellants contend that a portion of the trial court’s jury charge erroneously allowed the jury to find both defendants guilty of possession of codeine if either one possessed it. The actual jury charge in question was: “If you believe beyond a reasonable doubt that the defendants on trial did, in Clayton County, have under their control any quantity of codeine as charged in this indictment and that they did so without authority as provided by law, you would be authorized to find them guilty as charged.”

Considering this charge in a vacuum, the appellants possibly would have a point to argue. However, a jury charge must be considered as a whole and not out of context. Johnson v. State, 187 Ga. App. 803 (3) (371 SE2d 419). With regard to the other charges of armed robbery, possession of cocaine, and possession of marijuana, the trial court clearly instructed the jury that it could determine the defendants’ guilt separately. The omission in the charge on codeine possession, which immediately followed the other jury charges, obviously was inadvertent. The trial court also subsequently made it clear in its charge on the verdict form that each defendant could be found guilty or not guilty separately on the various counts. Under these circumstances, the charge on codeine possession could not have confused the jury in the manner claimed by the appellants.

As noted by Judge Richard Brevard Russell, “[t]aken as a whole, the charge was fair and full, and was notably free from error. By quoting excerpts from various portions of the charge, learned counsel have been able to find inaccuracies in the abstract, which, when considered in the light of the charge as a whole, manifestly appear not to have harmed the defendant. In fact, so skillfully has the charge been riddled, in an effort to find some portion of it which contains error, that we are reminded of the ingenuity of England’s attorney-general in drafting the information against Stockdale, the Piccadilly bookseller, who published the book of Rev. Mr. Logan containing a defense of Warren Hastings, which the government claimed contained libelous observations on the House of Commons. The attorney-general included in the information excerpts from the book, selected at random, which, when read successively and apart from the book as a whole, were colorably libelous. In arguing the case for Stockdale, the brilliant Lord Erskine called attention to the fact that the book as a whole would have to be read before any part of it could be called libelous. To illustrate his point, he said that by the method adopted the attorney-general could prove by the Bible itself that there is no God; whereupon he picked up the Bible and turned to the first verse of the fourteenth psalm and read the following: ‘There is no God.’ He then read the verse as a whole, as follows: ‘The fool hath said in his heart, There is no God.’ So, oftentimes in determining whether an excerpt from a judge’s charge is harmfully erroneous, it must be considered in the light of the charge as a whole. . . .” Ford v. State, 9 Ga. App. 851, 852-53 (72 SE 442).

Considering the jury charge as a whole, no harmful error resulted. Accordingly, the appellants’ convictions for possession of codeine are also affirmed.

10. Viewing the evidence in the light most favorable to the verdict, we conclude that the evidence authorized a rational trier of fact to find both appellants guilty beyond a reasonable doubt as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgments affirmed.

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

Birdsong, Judge,

dissenting.

The trial court erred in charging the jury: “If you believe beyond a reasonable doubt that the defendants on trial did . . . have under their control any quantity of codeine . . . you would be authorized to find them guilty.” This incorrect statement of law allows the jury to ignore the presumption of individual innocence and the requirements of separate proof and find both defendants guilty even if only one was in possession of codeine.

Contrary to the majority’s statement on the matter, this charge on possession of codeine must be considered “in a vacuum,” for it is the only charge on possession of codeine, and its misleading effect is not corrected by proper instructions on possession of other drugs. Even if the jury could possibly have ignored the mistake and taken the correct law from the charges on possession of other illicit drugs, this charge is still error, for the jury could not be expected to divine which was the true charge; even where the trial court charges the jury correctly on a certain point and elsewhere in the instructions charges incorrectly on the same point, this constitutes error since the jury cannot be expected to select and be guided by the correct portion and to disregard the incorrect. Salisbury v. State, 221 Ga. 718 (146 SE2d 776); see Burnett v. State, 152 Ga. App. 738 (264 SE2d 33).

This erroneous charge does not bear the majority’s colorful comparison to the perversion of a Biblical truth by the omission of the words: “The fool hath said in his heart. . . .” See Ford v. State, 9 Ga. App. 851, 852-853 (72 SE 442). Indeed, if that Biblical statement (“[t]he fool hath said in his heart, [t]here is no God”) were a point of law, we would have no trouble finding fatal error in a charge stating simply: “There is no God,” for this would not be a mere omission corrected elsewhere in a charge, but would be an incorrect and misleading statement standing alone, as is the charge here on possession of codeine. If we consider the charge “as a whole,” this misstatement is not corrected anywhere. Burnett, supra.

The fact that the jury returned separate verdicts of guilty on the count does not prove they understood the truth of the law from the charge on possession of other drugs, for the very error of this charge is that it enables the jury to find a separate verdict of guilty for each defendant as to possession of codeine, simply by finding that “they” possessed it, whatever that means, and however confused the jury might have been about the elements of possession. The fact that all other charges allowed the jury to decide each defendant’s guilt separately and then on the last charge stated: “You would be authorized to find them guilty” compounds the error.

I would reverse the verdicts of guilty on the count of codeine possession, for the evidence as to possession is complex and the incorrect charge allows conviction of “them,” even if one of them technically did not possess codeine under a correct charge of law. That this mistake was an “inadvertence” in an otherwise fine set of instructions does not make it less erroneous.

Decided March 8, 1990

Rehearing denied March 28, 1990

Linda S. Cowen, for appellant (case no. A89A1855).

James T. Barfield III, for appellant (case no. A89A1856).

Robert E. Keller, District Attorney, Tracy G. Gladden, Assistant District Attorney, for appellee.

I respectfully dissent. I am authorized to state that Presiding Judge Banke and Judge Cooper join in this dissent.

       Judge Russell has been the only person to serve as both Chief Judge of the Court of Appeals and Chief Justice of the Supreme Court. Deen & Henwood, Georgia’s Appellate Judiciary (The Harrison Company 1987), p. 91.


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

text:
    A89A1964.
    STUDEBAKER’S OF SAVANNAH, INC. v. TIBBS. CARTER v. TIBBS.
    A89A1965.
    (392 SE2d 908)
   McMurray, Presiding Judge.

This is the second appearance of this case before this Court wherein Carolyn Tibbs brought suit against Janice Carter and Studebaker’s of Savannah, Inc. seeking damages for personal injuries and property damages incurred in an automobile collision between her and Janice Carter. Following the decision in Tibbs v. Studebaker’s of Savannah, 184 Ga. App. 642 (362 SE2d 377) (Tibbs I) (cert. denied November 24, 1987), the case was returned to the State Court of Chatham County, where a jury returned a verdict in favor of plaintiff and against defendants Carter and Studebaker’s of Savannah, Inc. (“Studebaker’s”) jointly and severally, in the amount of $250,000. In Case No. A89AÍ964 Studebaker’s appeals from the judgment which followed, while Ms. Carter appeals in Case No. A89A1965. Held:

1. In appellant Carter’s third enumeration and appellant Studebaker’s fifth enumeration, appellants contend that the trial court erred in allowing evidence of a blood alcohol test performed on appellant Carter to be admitted when the test was not performed according to the requirements of OCGA § 40-6-392.

The records and the transcript of the proceedings in the cases sub judice contain no evidence showing appellant Carter was charged with any traffic or criminal offense. There was no evidence showing the “blood alcohol test” was performed at the request or direction of a law enforcement officer or that it was administered for the purpose of determining whether appellant Carter violated OCGA § 40-6-391.

The evidence at trial disclosed that the “blood alcohol test” upon appellant Carter was requested by the emergency room physician at the hospital where appellant Carter was taken following the collision. The test was performed pursuant to the medical treatment of appellant Carter and the results recorded in the usual and regular course of hospital business.

Appellants, by motion in limine, sought to exclude evidence concerning the blood test. Following a hearing on appellants’ motion, the trial court ruled that the “actual numbers” representing the test results could not be mentioned. However, the examining and treating physician (who also performed surgery upon appellant Carter that night) could testify utilizing the test results. Here the trial court did not permit the numerical reading of the amount of alcohol in the blood of appellant Carter to be disclosed to the jury. The trial court did permit the medical expert (the examining and treating physician) to give his expert opinion as to appellant Carter’s condition based on his observation of her and consideration of the hospital business records. Under the particular facts and circumstances of the cases sub judice and under the authority of Bynum v. Standard &c. Co., 157 Ga. App. 819, 820 (2) (278 SE2d 669), the trial court did not err in permitting the examining and treating physician to testify utilizing the hospital business records as well as from the physician’s observation of appellant Carter during examination at the hospital. See McCall v. Parker, 177 Ga. App. 774 (341 SE2d 303).

The examining and treating physician testified that appellant Carter “in layman’s terms . . . had a fracture of the leg between the knee and the ankle on the right side, with the bone sticking out through the skin. On the left side, she had a fracture between the knee and the ankle and the bone was in multiple pieces but was not out through the skin.” The physician further testified that, additionally, appellant Carter “had a respiratory distress syndrome and acute alcohol intoxication.” In response to questions on direct examination, he further testified, without stating the numerical reading of the amount of alcohol in the blood of appellant Carter reflected in the hospital records, as follows: “Q. Okay, Doctor, without in any way stating what the numbers were on that result as far as the blood alcohol test result was concerned, did the results of the blood alcohol test which you saw contribute to your diagnosis of acute alcohol intoxication? A. Yes. Q. To what extent did the results of that test contribute to that diagnosis? A. That fact was the basis upon which I made the diagnosis. Q. Okay, did the results of the blood alcohol test in fact confirm the diagnosis of acute alcohol intoxication, along with your observations? A. Yes. Q. Did the results of the blood alcohol test in fact support your diagnosis of acute alcohol intoxication? A. Yes.”

In the cases sub judice, the examining and treating physician’s expert opinion was not only based on the hospital’s business records but also upon his observation and examination of appellant Carter in the emergency room.

We find no error in the trial court’s allowing the admission of this evidence.

2. Appellant Studebaker’s contends in its fourth enumeration that the trial court “erred in instructing the jury as follows: ‘Whether or not there is a duty upon a drinking establishment to provide security for patrons and to keep an eye out for noticeably intoxicated persons leaving the establishment and to make sure that noticeably intoxicated persons do not drive, once a company or person undertakes such duty, it is required to perform that task in a non-negligent manner.” Appellant Studebaker’s asserts that “even if Studebaker’s assumes the duty of attempting to not let intoxicated persons drive, it is a duty owed to the customer [appellant Carter] and not to a third party and therefore a breach of it could not be asserted by Tibbs [appellee], a third party.”

The trial court charged “[o]ne who provides alcoholic beverages to a noticeably intoxicated person, knowing that that person will soon be driving a vehicle, may be liable for a third person’s injuries caused by the negligence of the intoxicated driver, if the alcohol was a proximate cause of the injuries.

“Whether or not there is a duty upon a drinking establishment to provide security for patrons and to keep an eye out for noticeably intoxicated persons leaving the establishment and to make sure that noticeably intoxicated persons do not drive, once a company or person undertakes such duty, it is required to perform that task in a non-negligent manner.”

Appellant Carter’s son (an employee of appellant Studebaker’s) testified he recalled seeing his mother when she arrived at appellant Studebaker’s; that he spoke to her when she arrived and that he did not notice anything unusual about the way she was acting when she arrived. He further testified he saw her occasionally throughout the evening while she was at appellant Studebaker’s; that when she left he walked her out to her car; that his mother did not appear to be intoxicated and that had she been he would not have allowed her to get in a car and drive off.

In response to questions on direct examination the off-duty police officer, employed by appellant Studebaker’s, testified as follows: “Q. Now, on the night of October 11th, 1985, do you remember Mrs. Carter being in Studebaker’s? A. Yes, I do. Q. Can you tell us why you remember her leaving Studebaker’s? A. It was close to the time when I was coming to work. I come to work at nine o’clock in the evening. I had just arrived, hadn’t been there for a great length of time. I can’t tell you whether it would have been five minutes or fifteen minutes, but I’d just arrived. Mrs. Carter was leaving Studebaker’s and her son also works there and he came up and introduced his mother to me. Q. Did you speak to Mrs. Carter? A. Yes, I did. We had a short conversation. Q. Were you able to observe the manner in which she was speaking? A. Yes, I did. Q. Anything about the manner in which she was speaking lead you to believe she was intoxicated? A. No, I did not. Q. What about — were you able to observe the manner in which she walked? A. Yes. I was still outside near the front door when she left the premises and she walked normally. Q. Okay, so she didn’t have any type of intoxicated walk about her; is that correct? A. No. Q. Had Mrs. Carter appeared to you to be intoxicated, what would you have done? A. I would have tried to find another ride for her, other than letting herself — letting her drive herself home. Q. If you could not have found another ride for her, what would you have done? A. If it hadn’t been a ride there at Studebaker’s itself, being a friend of the family or whatever, I would have called a cab for her. Q. And have you done that in the past? A. Numerous times. Q. And that’s the standard procedure? A. Yes, it is.” (Emphasis supplied.)

The Supreme Court of Georgia, in Sutter v. Hutchings, 254 Ga. 194, 195 (1), 197 (327 SE2d 716) (1985), held “[a] person owes to others a duty not to subject them to an unreasonable risk of harm. [Cit.] More specifically, OCGA § 3-3-22 provides that ‘no alcoholic beverage shall be sold . . . given, provided, or furnished to any person who is in a state of noticeable intoxication,’ and OCGA § 3-3-23 (a) (1) provides that ‘No person knowingly, by himself or through another, shall furnish (or) cause to be furnished . . . any alcoholic beverage to any person under 19 years of age’ except for medical or religious purposes, or in the home with parental consent.

“It could be argued that the duty or obligation created by these Code sections runs only to persons noticeably intoxicated or under 19, and not to others. However, in view of risks involved and the General Assembly’s efforts to control drunk driving for the protection not only of those drivers but others on the highways, we conclude that these statutory duties protect third parties as well as those noticeably intoxicated and under 19. OCGA §§ 3-3-22; 3-3-23, supra, provide the duty, not the cause of action. However, OCGA § 51-1-6 provides: ‘When the law requires a person ... to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.’ We therefore find that the defendant hostess and her daughter owed a duty to those using -the highways not to subject them to an unreasonable risk of harm by furnishing alcohol to a person under 19 who was noticeably intoxicated and who these defendants knew would soon be driving his car . . . [T]he duty upon the provider of alcohol is not merely to prevent the intoxicated driver from driving. The duty arises earlier. It is to stop serving alcohol to the driver who is noticeably intoxicated (or share the intoxicated driver’s liability to injured third persons).”

We hold that the trial court did not err in giving the contended erroneous charge as this fragmented charge, when considered with that portion of the trial court’s charge immediately preceding, as set out herein, was an accurate statement of the law and adjusted to the evidence. See Sutter v. Hutchings, 254 Ga. 194, 195 (1), 197, supra.

3. In its third enumeration, appellant Studebaker’s contends the trial court erred in allowing the issue of whether this appellant provided alcohol to a noticeably intoxicated Janice Carter to be decided by the jury. Additionally, in its first and second enumerations, appellant Studebaker’s contends there is no evidence to support the jury’s verdict finding it liable in damages to appellee for its serving of alcohol to the “noticeably intoxicated” appellant Carter in violation of OCGA § 3-3-22 as interpreted by the appellate courts in Sutter v. Hutchings, 254 Ga. 194, 195 (1), 197, supra, and the earlier appeal in Tibbs I. Appellant Studebaker’s argues the only evidence adduced at trial regarding appellant Carter’s condition in its establishment was from two of Studebaker’s employees, one of whom was appellant Carter’s son and the other an off-duty police officer. Both witnesses testified that appellant Carter was not “noticeably intoxicated” when she left appellant Studebaker’s bar. Appellant Studebaker’s asserts the jury could not have inferred from this direct evidence that appellant Carter was “noticeably intoxicated” when last served alcohol by appellant Studebaker’s.

“ ‘Direct and positive testimony, as distinguished from testimony circumstantial, opinionative, or actually negative in character, which (was) given by an unimpeached witness as to the existence of a fact apparently within his own knowledge, which (was) not in itself incredible, impossible, or inherently improbable, and which (was) not contradicted directly or by proof of facts or circumstances that could be taken as incompatible with such testimony, can not be arbitrarily rejected by a jury or other trier of the facts upon the mere surmise that it perhaps might not be in accord with the truth.’ [Cit.] ‘Circumstantial evidence from which the existence of a fact might be inferred, but which did not demand a finding for the plaintiff to that effect, will not support a verdict, when by positive and uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the circumstantial evidence relied on by the plaintiff, it was affirmatively shown that no such fact existed.’ [Cit.]” Westinghouse Elec. Corp. v. Rider, 168 Ga. App. 136 (1), 137 (308 SE2d 378) (1983).

In the cases sub judice, however, there was evidence from which the jury reasonably could have found that the testimony of appellant Carter’s son and his co-worker, the off-duty officer, could be discredited. There was direct evidence that the only alcohol appellant Carter had imbibed was at appellant Studebaker’s establishment and that the amount she had consumed there required her subsequent treatment for “acute alcohol intoxication.” There was direct evidence that she imbibed the alcohol over an approxiately 2-Vfe hour stay at the appellant Studebaker’s place of business and, as she did so, that she had last eaten around 8:00 p.m. the night before (more than 24 hours since she had had anything to eat). Appellant Carter testified at trial, so the jury had an opportunity to assess her height, weight and build.

Construing the evidence to uphold the jury’s verdict, see Kroger Co. v. Green, 190 Ga. App. 318 (1) (378 SE2d 905) (1989), the jury reasonably could have found that the foregoing proven facts were incompatible with the testimony of appellant Studebaker’s employees and could have concluded, as the verdict indicates the jury so found, that under these curcumstances, appellant Carter must have appeared “noticeably intoxicated” at the time she was served her final scotch and soda. Although appellant Studebaker’s argues that the jury could not disregard its employees’ testimony, “ ‘[i]n a case where the direct evidence is not all one way, or where there are proved facts and circumstances which could be taken as inconsistent with the direct positive testimony, the jury may always consider the relationship and the feeling of the witnesses toward the parties, as well as the facts and circumstances of the case, including the witnesses’ manner of testifying, their intelligence and number.’ [Cit.] In the [cases sub judice], the jury reasonably could have found that [the testimony of appellant Carter’s son and the off-duty officer employed by appellant Studebaker’s had been] impeached. ‘ “Questions as to creditability and preponderance address themselves to the trier of facts. (Cits.) On appeal, the appellate tribunal does not determine the credibility of witnesses or the preponderance of the evidence. The appellate tribunal utilizes the ‘any evidence’ test, a test not available to the trier of facts in deciding disputed factual issues.” [Cit.]’ [Cit.]” Westinghouse Elec. Corp. v. Rider, 168 Ga. App. 136 (1), 137, supra.

The trial court did not err in denying appellant Studebaker’s motion for directed verdict and motion for a judgment notwithstanding the verdict or in the alternative for a new trial.

4. Appellant Carter enumerates as error in her first enumeration, the refusal of the trial court to give her written requests to charge on the law of comparative negligence.

We find no evidence of any negligence on the part of the appellee. “The burden was upon the [appellant Carter] to prove that [her] negligence could have been discovered and avoided by [appellee]. [Appellant Carter] having failed to meet this burden, the trial court did not err in refusing to charge as to comparative negligence. Moore v. Price, 158 Ga. App. 566, 568-570 (2) (281 SE2d 269).” Nelson & Budd v. Brunson, 173 Ga. App. 856, 857 (3) (328 SE2d 746). See Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508, 511 (4) (359 SE2d 351).

5. In her sixth enumeration, appellant Carter contends the “Trial Court erred in allowing television cameras and crews in the open courtroom, in full view of the jury, without advance notice to the Appellant.” Appellant Carter argues in her brief that although “there is no case law on point on the subject of television coverage, common sense shows that a jury would notice television crews in the courtroom and would think the case must be of some importance. It was extremely difficult for Appellant to argue this was simply an ordinary accident case, when the news reporters and television crew members were bustling around the courtroom throughout the trial. Appellant could not receive a fair, impartial trial based on the evidence alone under these circumstances.” To warrant reversal, the alleged error must be harmful and the appellant Carter must show error which has hurt her and this she has failed to accomplish. See Dill v. State, 222 Ga. 793 (1), 794 (152 SE2d 741); Best Concrete &c. Co. v. Medusa Corp., 157 Ga. App. 97, 101 (5) (276 SE2d 147).

6. In appellant Carter’s second, fourth and fifth enumerations and in appellant Studebaker’s sixth enumeration, appellants complain of the trial court’s allowing contended improper conduct and improper remarks of appellee’s counsel during closing argument. We view appellee’s counsel’s comments and actions as well within the wide latitude permitted to counsel to argue every valid presumption and inference and deduction which may be drawn from the evidence however illogical they may seem to the opposing party. See Leutner v. State, 235 Ga. 77, 82 (7) (218 SE2d 820); Miller v. Coleman, 213 Ga. 125, 129 (6), 130 (97 SE2d 313); Wright v. Wright, 170 Ga. App. 652, 654 (3) (317 SE2d 888); Minor v. State, 143 Ga. App. 457 (2) (238 SE2d 582).

Judgments affirmed.

Beasley, J., concurs. Carley, C. J., concurs specially.

Carley, Chief Judge,

concurring specially.

I cannot agree with Division 3 of the majority opinion. I find absolutely no evidence whatsoever to authorize a finding that appellant-defendant Carter was noticeably intoxicated when she was served the' last drink at appellant-defendant Studebaker’s establishment. The only evidence of her intoxication relates to points in time which were after she had been served the last drink, and there is considerable doubt whether that evidence would be sufficient to show her noticeable intoxication even at those later times. Noticeable intoxication is obviously manifested by a person’s outward appearance. One may be intoxicated without being noticeably so and one may also appear to be noticeably intoxicated after involvement in a serious automobile collision without even being intoxicated at all.

However, even assuming that the evidence would authorize a finding of appellant Carter’s subsequent noticeable intoxication, I nevertheless cannot agree with the majority that that evidence would be sufficient to authorize a finding that she was noticeably intoxicated when she had previously been served the last drink. Certainly no presumption would arise that she was noticeably intoxicated at that earlier time. “[T]he doctrine of continuity does not include a ‘presumption that a present proven status existed in the past,’ but only that something which exists in the present will continue until there is proof of a change. [Cit.]” Professional Bldg. v. Reagen, 129 Ga. App. 183, 185 (199 SE2d 266) (1973). Noticeable intoxication “depends in part on a person’s tolerance to alcohol, which varies among individuals and even within individuals.” Jones v. Toyota Motor Co., 243 Cal. Rptr. 611, 613 (1) (Cal. App. 1988). Accordingly, the jurors’ personal experiences would have no evidentiary bearing on the question of whether appellant Carter’s purported subsequent noticeable intoxication was indicative of her earlier noticeable intoxication and there is no expert medical testimony that appellant Carter’s subsequent intoxication was such as to indicate that she would have been noticeably intoxicated at the time she was served the last drink. Thus, under my view of the record, her noticeable intoxication at that earlier time is mere rank speculation. Compare Whelchel v. Laing Properties, 190 Ga. App. 182, 184 (2) (378 SE2d 478) (1989).

I cannot, however, dissent to Division 3. In the prior appearance of this case, it was implicitly held that appellant Studebaker’s owed appellee-plaintiff not only the initial duty to stop serving alcohol to a noticeably intoxicated person, but also a subsequent duty to prevent a noticeably intoxicated person from leaving its premises and that the evidence would further authorize a finding that appellant Studebaker’s had breached this subsequent duty owed to her. Tibbs v. Studebaker’s of Savannah, 184 Ga. App. 642, 644 (b) (362 SE2d 377) (1987). “The evidence introduced on the trial of the case was in every material substance identical to that which the court considered on motion for summary judgment. . . . Hence, the rule would be applicable that the rulings on a former review, whether right or wrong, are binding on this court where the evidence on the principal issues is substantially similar. [Cit.]” Srochi v. Kamensky, 121 Ga. App. 518, 519-520 (1) (174 SE2d 263) (1970). Since the law of the case rule would mandate a holding that the evidence in the instant case authorizes a finding of appellant Studebaker’s liability for the breach of a subsequent duty to prevent appellant Carter from driving away, it necessarily follows that what I perceive to be a lack of evidentiary support for a finding of appellant Studebaker’s liability for the breach of the initial duty to stop serving alcohol to appellant Carter is ultimately immaterial.

Although I am compelled to follow Tibbs as the established law of the case, I am not compelled to agree with its holding. In my opinion, Tibbs is incorrect because there is no actionable duty on the part of the provider of alcohol to prevent his noticeably intoxicated guests from driving away from the premises. There is certainly no statute which imposes such a duty. The statutory duty is to withhold alcohol from “any person who is in a state of noticeable intoxication.” OCGA § 3-3-22. Likewise, I find no authority for imposing such a duty under common law. “The traditional formula setting forth the elements of negligence are: T. A duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks. ... ‘3. A reasonable close causal connection between the conduct and the resulting injury. . . .’ [Cits.]” (Emphasis supplied.) Sutter v. Hutchings, 254 Ga. 194, 196-197 (1) (327 SE2d 716) (1985). Insofar as the conduct of the provider of alcohol is concerned, he can certainly choose whether or not to continue to serve a guest who is then noticeably intoxicated. If he chooses to do so, “it is foreseeable to the provider that the consumer will drive while intoxicated and a jury would be authorized to find that it is foreseeable to the provider that the intoxicated driver may injure someone.” Sutter v. Hutchings, supra at 198 (1). Under Tibbs, however, the provider of alcohol can be found liable for damages which were not the foreseeable consequences of his own conduct. Tibbs holds that the provider of alcohol to a guest who was not then noticeably intoxicated nevertheless has the subsequent duty to determine whether his guest may have become noticeably intoxicated and, if so, to require that that guest’s conduct conform to the standard which proscribes driving in such a condition. This, in effect, requires that the provider of alcohol constantly monitor the exit to his premises and attempt to stop any of his formerly sober guests who might wish to leave after subsequently becoming noticeably intoxicated or the provider will risk being held vicariously liable for the consequences of that guest’s negligent act of choosing to drive while noticeably intoxicated. It is one thing to hold that the provider of alcohol is liable for the foreseeable consequences of his own act of serving an already noticeably intoxicated guest. It is quite another to hold that the provider of alcohol is vicariously liable for the foreseeable consequences of the act of his formerly sober guest who chooses to drive away only after he has become noticeably intoxicated.

I simply cannot agree with Tibbs that the common law would authorize a recovery against the provider of alcohol in the latter situation. The provider of alcohol “is not liable to third persons for injuries caused by the negligence of the consumer where the consumer was not intoxicated at the time the alcohol was furnished. [Cit.] A person who [provides] alcohol to one who is not intoxicated is not charged with foreseeing that the [consumer] will consume an excessive amount of such alcohol and will drive a vehicle while under the influence of such alcohol.” (Emphasis supplied.) Sutter v. Hutchings, supra at 201 (Appendix.) Moreover, even if Tibbs were correct and liability could attach for simply allowing a formerly sober guest who has subsequently become intoxicated to drive away, I would still be compelled to find that Tibbs was erroneously decided insofar as it found sufficient evidence to authorize a finding of appellant Studebaker’s liability under that theory. As discussed above, I do not believe that the evidence as to appellant Carter’s subsequent intoxication was sufficient to show that she was noticeably intoxicated at any earlier time, including the time that she left appellant Studebaker’s premises. Compare Whelchel v. Laing Properties, supra.

I also cannot agree with Division 2 of the majority opinion and believe that the charge on appellant Studebaker’s gratuitous undertaking of the duty to prevent its guests from leaving the premises while noticeably intoxicated was erroneously given. Although appellant Studebaker’s owed non-patrons the duty not to serve alcohol to its guests if they were then noticeably intoxicated, the duty not to endanger non-patrons by driving away from the premises only after subsequently becoming intoxicated was owed by the guests themselves. There is no evidence that it was standard procedure for appellant Studebaker’s to require its guests to relinquish control over their cars or their persons, but only for it to undertake to persuade them not to drive while intoxicated. Appellant Studebaker’s cannot, therefore, be found to have gratuitously undertaken performance of the actual duty owed by its guests to refrain from driving while intoxicated. “An actor is liable for his negligent performance if he has undertaken to perform a legal duty owed by the other to the third person on behalf of and in lieu of that other. Liability does not arise in the situation when ‘one undertakes to perform functions coordinate to — or even duplicative of — activities imposed on another by a legal duty, but rather [liability does arise in] the situation in which one actually undertakes to perform for the other the legal duty itself.’ [Cit.]” (Emphasis in original.) Lather v. Berg, 519 NE2d 755, 766 (8) (Ind. App. 1988). “Because [appellant Studebaker’s] had no right to prevent [appellant Carter] from driving and never took control [of her car, appellant Studebaker’s] cannot be held liable for failing to prevent [her] from driving.” Lather v. Berg, supra at 767 (10). Any gratuitous undertaking merely to reinforce rather than actually to perform the duty that was owed by its intoxicated guests to non-patrons would not give rise to liability against appellant Studebaker’s and, in my opinion, the contested charge was erroneously given.

Again, however, I cannot dissent to Division 2 because the law of the case rule prevents it. Under Tibbs, it is of no consequence whether appellant Studebaker’s gratuitously assumed the duty to prevent its guests from leaving the premises while noticeably intoxicated because such a duty was nevertheless owed as a matter of common law. If the duty was owed as a matter of common law, it necessarily follows that an erroneous charge which predicates appellant Studebaker’s liability on the gratuitous assumption of that duty would constitute harmless error. Accordingly, I am in the anomalous position of concluding that that which I perceive to be reversible error in the instant case must be considered to be harmless as the result of the previous decision of this court, which constitutes the law of the case.

Decided March 16, 1990

Rehearings denied March 28, 1990

Dana F. Braun, for Studebaker’s.

Marshall R. Wood, for Tibbs.

Leesa A. Bohler, for Carter.

I am “in sympathy with [appellant Studebaker’s] arguments] [as to Divisions 2 and 3] but find [myself], through application of the law of the case rule, without the authority to [find reversible error] in the context of this appeal. . . . The [Tibbs] decision, [which I consider to be] wrong, being the law of the case, binds this court in the instant appeal. [Cit.] ‘While the holding in [Tibbs] on its previous appearance before this court may be reviewed and overruled [by this court] in another case, as between these parties it must stand. [Cit.]’ [Cit.]” Redmond v. Blau, 153 Ga. App. 395, 396 (265 SE2d 329) (1980). Since only the Supreme Court would be authorized to overrule Tibbs and find reversible error in the instant case, I must reluctantly concur in the majority’s judgment of affirmance.


author: Beasley, Judge.

text:
    A89A2006.
    DOCTORS HOSPITAL OF AUGUSTA, INC. v. BONNER et al. ANESTHESIA GROUP v. BONNER.
    A89A2007.
    (392 SE2d 897)
   Beasley, Judge.

Anesthesia Group and Doctors Hospital of Augusta, Inc., d/b/a Humana Hospital, appeal the judgments entered on jury verdicts against each of them in this medical malpractice case brought by the representative and family of Ada Hammonds Pierce.

The evidence at trial is construed so as to uphold the verdict. Pendley v. Pendley, 251 Ga. 30, 31 (1) (302 SE2d 554) (1983). Ms. Hammonds, the name she used professionally, was a 38-year-old Licensed Practical Nurse who worked in the delivery room at St. Joseph’s Hospital. She slipped in the delivery room and injured her knee, requiring arthroscopic surgery. She was admitted by orthopedist Dr. Brand to Humana Hospital on October 4, 1983.

Humana Hospital had contracted in 1981 with Anesthesia Group, a partnership composed of Dr. Horseman and Dr. Mahoney, for the partnership to “provide full-time Anesthesiology services and assume general responsibility for the conduct and operation of Hospital’s Anesthesiology Department, subject to approval of Hospital.” The contract provided that services under it would be performed as scheduled by the Hospital Administration and that Group was required to provide an anesthesiologist from 7:00 a.m. to 3:30 p.m. Monday through Friday and otherwise as required by the Hospital. The partnership had to be available on 30 minutes notice for emergencies. The emergency services could be provided by a Certified Registered Nurse Anesthetist (CRNA) with an anesthesiologist available for supervision. The two partners were members of the hospital staff.

Surgery was scheduled by Hospital based on the requests for surgery made by surgeons such as Dr. Brand. A surgery schedule was prepared around 1:00 p.m. each day, typed up by Hospital’s Director of Surgery and given to Group, which would decide how to staff the needed anesthesia services. Group set a fee schedule under the contract, which was subject to approval of Hospital. Hospital did not have approval rights of fees set by other doctors. When surgery was completed, the doctor or CRNA gave a charge slip, with the patient and surgery information and anesthesia charge on it, to Hospital’s administrative staffer in the operating suite. The anesthesia was billed on the hospital bill. The notation on Ms. Hammonds’ bill was “Anesthesia supplies 90.88 Anesthesia hosp empe 286.00.” Hospital paid Group 86 percent of the total anesthesia charges, retaining 5 percent as administrative costs and 9 percent to cover “bad debts.” There was a charge back provision in the contract: if any third party provider did not pay or paid only partially, Group would reimburse Hospital. Hospital owned the accounts. Bill disputes with patients and collection were its responsibility.

Group in turn had contracted with five Certified Registered Nurse Anesthetists who worked under the partnership at Hospital. One of these CRNAs, Sarafin, visited Ms. Hammonds the evening of her admission. He introduced himself to all patients as being from the “anesthesia department.” Nurses, including CRNAs, were required to wear uniforms of certain colors denoting their position. They were also provided name tags with their and the Hospital’s names on it. Sarafin did the preoperative workup on Ms. Hammonds and prescribed preoperative medication. He signed Dr. Horseman’s name to the orders. Dr. Horseman did not see Ms. Hammonds, nor did Sarafin consult with him concerning her.

On October 6, after having been given morphine at 6:00 a.m. for the surgery, Ms. Hammonds was taken to the pre-op holding area. She was visited by CRNA Jimenez, who was scheduled to administer anesthesia. He introduced himself to patients as a CRNA or nurse anesthetist with the “anesthesia service.”

Dr. Mahoney was the floating anesthesiologist that day. He reviewed Ms. Hammonds’ records in the pre-op holding area, approved the pre-op medications after they had been given, discussed for a minute or two the anesthesia plan with Jimenez, and spoke briefly with the patient.

Dr. Mahoney was not present in the operating room when' anesthesia was induced nor during the surgery. Ms. Hammonds was put to sleep and then given a 100 mg. dose of Anectine at 7:05 a.m. Anectine paralyzes a patient so that the vocal cords will remain open, allowing insertion of an endotracheal tube to aid breathing during surgery. The surgery, uneventful, was completed at 7:46 a.m.

At 7:48 a.m., the endotracheal tube was suctioned out and removed. Ms. Hammonds was suctioned again and preparations were being made to roll her onto a gurney when a laryngospasm, which interferes with breathing, was observed by Jimenez. He administered 20 mg. of Anectine at 7:51 a.m. to break the spasm. It broke for approximately three breaths but reoccurred. Dr. Brand, the surgeon, had noticed Ms. Hammonds’ toes and toenails becoming cyanotic, or turning blue, about five minutes after the surgery ended. He told Jimenez, who responded that he was administering medicine.

A second 20 mg. dose of Anectine was given at 7:56 a.m. but had no effect on the ability of Jimenez to ventilate the patient. At 8:00 a.m., circulating nurse Duffy left the operating room, went to the desk in the operating suite, and told the nurse there to find Dr. Mahoney. She got the code cart and returned to the operating room. Dr. Mahoney arrived and began to assist Jimenez. At 8:02 a.m., Jimenez gave a 100 mg. dose of Anectine, reintubated the patient, and started an i.v. drip of Anectine.

Jimenez saw no improvement in his ability to ventilate Ms. Hammonds. Both he and Dr. Mahoney listened to her chest, but her weight (250 pounds, height 5 feet) made chest sounds less clear. Both believed she had developed a bronchospasm, which causes the small sacs in the lungs to constrict, in addition to the laryngospasm. Bronchospasm under these circumstances is extremely rare and is seldom fatal.

During this period, Ms. Hammonds’ heart rate became very slow, including at least two incidents of asystole or stoppage. Cardiac massage was used at intervals. Medications, effective both to stimulate the heart and to relax bronchospasm, were administered. At 8:07 a.m., due to the continuing difficulty, Dr. Mahoney decided to remove the second endotracheal tube and replace it with another. At 8:10 a.m., improvements in respiration began as it finally brought air to the lungs and ultimately to the brain.

Upon arrival at the intensive care unit, the nurses noted that the abdomen was “distended and tympanic sounding.” This can be caused by pumping air into the stomach from an improperly placed endotracheal tube. Ms. Hammonds never regained consciousness and remained on a respirator until she was declared brain dead and life support was removed on October 11.

Case No. A89A2007

1. Group’s first two enumerations allege error in the trial court’s denial of their motion for directed verdict on the issue of negligence per se based on violation of OCGA § 43-26-9 (b) and the court’s charge on it.

That section provides that anesthesia may lawfully be administered by a CRNA “provided that such anesthesia is administered under the direction and responsibility of a duly licensed physician with training or experience in anesthesia.” (Emphasis supplied.)

The allegations against Group and Hospital were that there had been a failure to exercise the degree of care generally required in the administration of anesthesia. See OCGA § 51-1-27. It was further alleged that Dr. Mahoney and CRNA Jimenez were agents and employees of Hospital.

The contracts entered into between Group and its CRNAs described the arrangement as one not between employer and employee, but between a “contractor,” Group, and “subcontractors,” the CRNAs. They further stated that the arrangement was meant to make the CRNAs “independent contractors.”

“ ‘By statute, the physician is the only one empowered to practice medicine.’ [Cit.] OCGA § 43-26-9 makes an exception in the specialty of anesthesiology and allows a nurse who meets the qualifications of the statute to administer anesthesia under particular supervision.” Central Anesthesia Assoc. v. Worthy, 173 Ga. App. 150, 152 (325 SE2d 819) (1984), affirmed 254 Ga. 728 (1985).

Dr. Horseman, while acknowledging that he did not understand the meanings of the terms “employee and independent contractor,” believed the contract did not diminish his ability to control the CRNAs and to direct their activities in the administration of anesthesia. Nonetheless, he had given no instructions to the CRNAs as to when they should call an anesthesiologist to the operating room. He believed the understanding of the CRNAs was that they should call when they needed the doctor for “consultation.”

Dr. Mahoney stated he was unaware of any written guidelines which delineated when the CRNA should request assistance from the anesthesiologist, and he mentioned no verbal guidelines.

Jimenez said he was an independent practitioner but elected to work in a hospital “where I work with anesthesiologists so that I have their expertise to use along with my own.” He described the anesthesiologist as “a consulting person and a resource person and an assistant who has a little more medical background or a lot more medical background than I do.”

The anesthesia guidelines for the Hospital state that “[t]he anesthetist responsible for the anesthesia decisions required during anesthesia management be already identified [before induction] to the patient and to any technician who may assist in such care and management, and his availability for supervision and direction be established if he is not administering the anesthesia personally(Emphasis supplied.)

Two anesthesiologists testified as experts. Dr. Jeffries, for Hammonds, opined that Jimenez’ actions were deficient in several respects and that the degree of supervision and direction exercised by Dr. Ma-honey was not commensurate with that required in the practice of anesthesiology at that time. In his opinion, the CRNA should immediately initiate treatment and call the doctor as soon as any respiratory problems arise. Instead, Jimenez continued to try to correct the problem himself and the doctor was finally summoned by the circulating nurse. Dr. Jeffries believed that Ms. Hammonds’ size made a 20 mg. dose of Anectine useless and that the 100 mg. dose should have been given initially. It was also his opinion that Jimenez’ intubation at 8:02 a.m. was into the esophagus, not the trachea, taking air to the stomach and not to the lungs, which would have resulted in distention of her abdomen if allowed to continue for five minutes or more. It would not have provided needed oxygen to the brain.

Dr. Jeffries said that such intubations can occur but felt that failure to recognize that the tube was in the wrong place and failure to correct it for over five minutes caused the damage resulting in her death.

Dr. Bartel, defendants’ expert, initially said that calling Dr. Ma-honey after the second laryngospasm was appropriate, but added that the anesthesiologist should be called immediately when cyanosis is present. She also agreed that the 20 mg. dose was insufficient for a woman of Ms. Hammonds’ size and that the second dose should have been a full 100 or 120 mg. in order to break the spasm.

Appellant Group argues that there was no evidence that the statute had been violated, rendering the charge and denial of their motion for directed verdict error.

Central Anesthesia Assoc. v. Worthy, supra, holds that OCGA § 43-26-9 establishes the standard of conduct constituting ordinary care for use of CRNAs and that its violation can amount to negligence per se. See West v. Mache of Cochran, 187 Ga. App. 365, 367 (1) (370 SE2d 169) (1988). Worthy found that the administration of anesthesia by a registered professional nurse, in her second year of training to become a CRNA, under the supervision of a physician’s assistant without the involvement in any way of the anesthesiologist, who was on a different floor when complications arose, was sufficient for the granting of summary judgment to the plaintiffs.

It also held that “[t]he purpose of OCGA § 43-26-9 is to protect patients from the dangers of improperly administered anesthesia by those unqualified by a lack of what public policy regards as minimum education in the field, and by a lack of specified supervision. . . . The statute set[s] threshold qualifications which [have] to be met before a person would be permitted under the law to apply anesthesia. These qualifications do not establish how the anesthesia is to be administered, or what methods or instruments may be used, but rather who may do it with whose supervision. Thus it prohibits anyone not meeting these qualifications from performing, and it further prohibits even a statutorily qualified person from performing without prescribed supervision.” Id. at 153. (Emphasis supplied.) Thus, the “direction” referred to in the statute has been equated with “supervision.” See Webster’s Third Intl. Dictionary 640, 2296 (1981).

As to Ms. Hammonds, there was sufficient evidence from which a jury could conclude that, because there was no clear understanding between the doctors and the CRNAs, and in particular Dr. Mahoney and Mr. Jimenez, as to when the doctor should be summoned whenever difficulties were encountered, this was a failure of the mandated degree of “direction and responsibility.” Time itself was crucial here. Delay resulted in inadequate treatment of the laryngospasm for over five minutes before Dr. Mahoney was summoned.

Group’s motion for directed verdict contended that the only failure of care was the esophageal intubation, done in the presence of Dr. Mahoney, and thus as a matter of law under his “direction and responsibility.” Pretermitting the issue of whether his walking in the door during the reintubation was sufficient supervision, Ross v. Chatham County Hosp. Auth., 258 Ga. 234 (367 SE2d 793) (1988), the plaintiffs’ theories were broader than this. They included the lack of understanding between doctor and CRNA as to when the doctor should be called and the failure to have the doctor available sooner.

Denial of the directed verdict was not error. OCGA § 9-11-50 (a). Marriott Corp. v. American Academy of Psychotherapists, 157 Ga. App. 497, 498 (1) (277 SE2d 785) (1981). Horney v. Lawrence, 189 Ga. App. 376, 377 (2) (375 SE2d 629) (1988).

The fact that the level of supervision is not more definitive in the statute is not dispositive and did not require a directed verdict. It is a standard which is subject to elucidation by experts as is any other professional standard. Loving v. Nash, 182 Ga. App. 253, 255 (1) (355 SE2d 448) (1987); see Sparks v. Hoff, 186 Ga. App. 907, 908 (368 SE2d 830). Such expert opinion was provided and resolution of the differences in the experts’ opinions was for the jury. Id. The charge tracked the language of the statute and, in the absence of any particularized request to charge by Group, no further explication was required. The court’s charge was sufficient. Schroeder v. Hunter Douglas, Inc., 172 Ga. App. 897, 901 (7) (324 SE2d 746) (1984); Parrott v. Edwards, 113 Ga. App. 422, 429 (5) (148 SE2d 175) (1966).

2. Enumeration three alleges error in the following charge on admissions: “[I]t is contended that there have been admissions in this case, and I charge you that an admission is a statement or writing by a party which tends to aid the cause of the other party. And all admissions under our law are to be carefully considered. In this case . . . the plaintiff has contended that certain statements in the medical charts constitute admissions, and these admissions, if they appear to be such, should be carefully considered as a statement tending to aid the cause of the side.”

Group’s objection was that the court charged admissions, then “went on to emphasize that more by stating that if plaintiffs had contended the statements in medical charts were admissions on behalf of Anesthesia Group. I would particularly object to that because there is no evidence and there are no writings in the chart anywhere by Anesthesia Group, an entity. There was never any evidence before the court that any individual was authorized to make any admissions. There was no party Anesthesia Group that made any admissions. And the court’s charge on that, therefore, was prejudicial. Was not adjusted to the facts and not a part of the case.”

Other objections argued for the first time on appeal will not be considered. OCGA § 5-5-24; AAA Van Svcs. v. Willis, 180 Ga. App. 18, 19 (3) (348 SE2d 475) (1986); Eiberger v. West, 165 Ga. App. 559, 560 (2) (301 SE2d 914) (1983).

As reflected above, there was evidence from which the jury could conclude that Jimenez was the employee of the partnership, not an independent contractor. Although Dr. Horseman and Dr. Mahoney said they were professional corporations, Dr. Mahoney signed the agreement with Jimenez as an individual and both doctors signed the contract with Hospital as individuals.

An admission made by a partner concerning partnership affairs within the scope of his authority is evidence against the partnership. OCGA § 14-8-11 (enacted by Ga. L. 1984, p. 1439, prior to which general scope of partners’ authority would cover principle involved, former OCGA § 14-8-61). An admission by an employee of the partnership within the scope of his authority can be considered against the partnership. OCGA § 24-3-33.

The charge given is set out in Vol. I, Civil Cases, Suggested Pattern Jury Instructions, 2d ed., p. 19. Whether Jimenez was the agent of the partnership, whether the partnership was the agent of Hospital, and whether there were any admissions in the medical records were for the jury to determine pursuant to the instruction. The charge as given may have been beneficial to the Group in that it limited the consideration of admissions to the medical records when there were arguably admissions made in the testimony of Drs. Horseman, Mahoney, and CRNA Jimenez outside these records. The enumeration evaporates.

3. Error is alleged in the admission of Plaintiffs Exhibits 64 and 65, handwritten consultations made by Drs. Bashinski and Smith on the morning of the incident.

Early in the trial, the entire medical chart of Ms. Hammonds was tendered into evidence by plaintiffs. The only objection was that parts of it, P-64 and P-65, were hearsay and inadmissible without proper foundation. The objection was sustained as to these two documents.

Thereafter, Dr. Jeffries testified and stated his conclusion that Ms. Hammonds had suffered cardiac arrest as a result of lack of oxygen, causing brain damage. He was asked on direct examination not to consider P-64 and P-65 and based his opinion on the remainder of the medical record. Dr. Jeffries was vigorously cross-examined by Group as to the lack of any notation of “cardiac arrest” as the precipitating factor anywhere in the medical chart. Defendants contended that she had suffered a respiratory arrest, with subsequent brain damage, as a result of the laryngospasm and bronchospasm which were appropriately treated without her responding.

On redirect, plaintiffs again tendered the two consults, which did mention cardiac arrest, arguing that the hearsay objection had been waived by the repeated questioning concerning the absence of such a notation in the reports of those present with Ms. Hammonds on October 5. The court admitted them.

Thereafter, Dr. Bartel, Group’s expert witness, testified and acknowledged that she had considered and relied upon both P-64 and P-65 in reaching her conclusions.

The two documents were hearsay, OCGA § 24-3-1. A physician may not base his expert opinion solely on the hearsay opinion of another doctor, thereby acting as a mere conduit for the opinion of the first. Mallard v. Colonial Life &c. Ins. Co., 173 Ga. App. 276 (326 SE2d 6) (1985); Stephen W. Brown &c. Assoc. v. Gowers, 157 Ga. App. 770, 780 (5) (278 SE2d 653) (1981). Nor may he base such an opinion on reports or facts which are not in the record. OCGA § 24-9-67; Andrews v. Major, 180 Ga. App. 393, 395 (2) (349 SE2d 225) (1986). That, however, did not occur. Dr. Jeffries, as well as Dr. Bartel, examined portions of Ms. Hammonds’ medical chart, including the objective findings noted by numerous medical personnel and equipment, such as the EKG machine attached to her throughout the surgery. Their opinions were based on these facts.

Even if Dr. Jeffries had partially found his opinion on inadmissible hearsay as well as facts, such would go to the weight rather than to the admissibility of the opinion. King v. Browning, 246 Ga. 46, 47 (1) (268 SE2d 653) (1980).

P-64 and P-65 were admitted not for the purpose of proving that the diagnosis contained in them was the correct one, but to counter the incorrect impression made on the cross-examination of Dr. Jeffries that the notation “cardiac arrest” appeared nowhere in the medical chart. Having opened the door, Group cannot complain that plaintiffs entered. Tiftarea Shopper v. Maddox, 187 Ga. App. 227 (2) (369 SE2d 545) (1988).

Numerous other witnesses who were present at the surgery, including Jimenez, acknowledge that “asystole,” or moments of heart stoppage, occurred during the treatment. Cardiac arrest is “asystole.” Dorland’s Pocket Med. Dictionary, p. 79 (23rd ed. 1982). Any error in the allowance of these exhibits would have been harmless. Andrews, supra at 395.

4. Orthopedist Dr. Brand’s testimony was by deposition. During its reading, Group objected that, an answer was non-responsive and hearsay. The answer was to plaintiffs’ question whether any reasons for the third intubation (by Dr. Mahoney) were discussed in the operating room. Dr. Brand answered that “It’s my understanding from an anesthesiologist when a patient isn’t doing well, the first thing you should think about is, is the tube in the right place or not. You ought to be sure that it is in the right place.”

The answer was not responsive to the question. But knowledge gained by an expert during the practice of his profession, even from hearsay, may be used to express an opinion. King, supra; Brown v. State, 245 Ga. 588, 590 (1) (266 SE2d 198) (1980). Although Dr. Brand was not an anesthesiologist, he was a surgeon and stated that, as such, he had training in and an understanding of anesthesia. The fact that the tube should be checked was testified to by Dr. Jeffries, so the admission of Dr. Brand’s statement, even if error, was harmless. Atlanta Gas Light v. Redding, 189 Ga. App. 190 (1) (375 SE2d 142) (1988).

5. Finally, Group complains of the court’s failure to give its seventh Request: “I charge you that the law does not require that medical treatment to a patient shall yield perfect or nearly perfect results.”

“In order for a refusal to charge to be error, the requests must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge. [Cit.]” Me- doc Corp. v. Keel, 166 Ga. App. 615, 618 (2) (305 SE2d 134) (1983); see Woodcraft Div. v. Laborers’ Intl. Union &c., 170 Ga. App. 581, 585 (317 SE2d 602) (1984). “The mere fact that a requested charge was taken from an opinion of our appellate courts does not render its use appropriate in charging the jury. [Cits.]” Kamor v. Fireman’s Fund Ins. Co., 133 Ga. App. 234, 238 (5) (211 SE2d 179) (1974); Citizens Bank &c. v. Hooks, 173 Ga. App. 865, 867 (3) (328 SE2d 755) (1985).

The principles applicable to a finding of medical malpractice were thoroughly given, including that “the mere fact that there is an unfortunate or bad result occurred does not alone prove and does not imply that any of the defendants were negligent or unskillful.” This served the purpose of the requested charge.

Case No. A89A2006

6. Hospital’s first two enumerations allege errors in the court’s denial of its motions for summary judgment and directed verdict. To the extent they address the denied summary judgment motion, the issue is moot. Hardaway Constructors v. Browning, 176 Ga. App. 530 (2) (336 SE2d 579) (1985).

(a) The first basis urged in the motion for directed verdict relied on principles in Overstreet v. Drs. Hosp., 142 Ga. App. 895 (237 SE2d 213) (1977) and Pogue v. Hosp. Auth. of DeKalb County, 120 Ga. App. 230 (170 SE2d 53) (1969). Hospital contended that the contract between Hospital and Group showed that neither Dr. Mahoney nor Jimenez were employees or agents of Hospital but instead were individual contractors for whose actions Hospital was not liable.

Pogue has been often cited and much discussed for the proposition that “[a] hospital is not liable for the negligence of a physician employed by it where the negligence relates to a matter of professional judgment on the part of the physician when the hospital does not exercise and has no right to exercise control in the diagnosis or treatment of illness or injury.”

Brown v. Coastal Emergency Svcs., 181 Ga. App. 893, 895 (2) (354 SE2d 632) (1987), aff’d sub nom. Richmond County Hosp. Auth. v. Brown, 257 Ga. 507 (361 SE2d 164) (1987) states: “[s]ince it would almost certainly be violative of a physician’s professional ethics for him to abandon his professional judgment in matters relating to the diagnosis and treatment of patients, it has been pointed out that literal application of this test would effectively enshroud hospitals with an ‘impenetrable cloak of immunity’ in malpractice actions based on physician negligence. See Stewart v. Midani, 525 FSupp. 843, 849 (N.D. Ga. 1981) [for analysis of Georgia cases]. Cf. Mitchell County Hosp. Auth. v. Joiner, 229 Ga. 140 (189 SE2d 412) (1972). However, it is quite evident that the control test set forth in Pogue has not been applied to such effect by the courts of this state.”

Cases including Newton County Hosp. v. Nickolson, 132 Ga. App. 164, 167 (207 SE2d 659) (1974), and Hodges v. Drs. Hosp., 141 Ga. App. 649 (234 SE2d 116) (1977) have held hospitals liable for physicians’ malpractice when the evidence indicated control by the hospital only of the time and place and not necessarily the manner of the exercise of their professional judgment. Compare Bexley v. Southwire Co., 168 Ga. App. 431, 432 (1) (309 SE2d 379) (1983), aff'd 253 Ga. 125 (317 SE2d 523) (1984).

We need not resolve this quandary. There was adequate evidence from which the jury could conclude that Hospital had retained authority over the time, method and manner of the practice of anesthesiology at its facility, and that its employee, Group, through its partner Dr. Mahoney, was negligent in failing to properly supervise CRNA Jimenez and in failing to properly preintubate Ms. Hammonds immediately upon his arrival in the operating room.

Hospital relies heavily on paragraph VII of its contract with Group. It is labeled “Independent contractor” and states that “[t]he Partnership and the Hospital acknowledge that any person designated by the Partnership and performing anestheology [sic] or anesthetist services hereunder are not employees, agents, partners or joint venturers with the Hospital.” Such labeling in a contract is not determinative of the status of any such person and other factors may negate the label. McGuire v. Ford Motor Credit Co., 162 Ga. App. 312, 313 (290 SE2d 487) (1982); Frey v. Pepsico, 191 Ga. App. 585, 587 (1) (382 SE2d 648) (1989).

Contrasted i§ the following evidence of control, in addition to facts set out earlier. Group was required to treat all patients at Hospital who required such services; it could not choose. It was required to do so in the four operating rooms for stated hours five days a week, for emergencies, 24 hours a day. Hospital had the right to approve the rates charged through its billing system and in its name. Hospital had a closed anesthesiology panel, in that no other anesthesiologists were allowed to practice there. Even Hospital, which contended the panel was open, agreed that any other anesthesiologist desiring to practice would have to be sponsored by either Dr. Horseman or Dr. Mahoney and approved by Hospital beforehand.

Hospital retained the right to approve the anesthesiology services and the conduct and operation of the anesthesiology department. The fact that Hospital may not have exercised this right to its fullest extent or in each particular case does not weaken its significance. Miller v. Kimball, 163 Ga. App. 435, 437 (294 SE2d 681) (1982); Moon v. Ga. Power, 127 Ga. App. 524, 526 (1) (194 SE2d 348) (1972). Most telling is the contract provision that “[t]o the extent required by the laws and regulations governing the operation of Hospital, Hospital retains professional and administrative responsibility for the services provided hereunder.”

The issue of actual agency was appropriately left to the jury. Macon-Bibb County Hosp. Auth. v. Whipple, 182 Ga. App. 195, 196 (2) (355 SE2d 83) (1987); Lawson Prods. v. Rousey, 132 Ga. App. 726, 728 (1) (209 SE2d 125) (1974). Since the jury could find that Group and its partner Dr. Mahoney were in fact employees rather than liability-precluding independent contractors, Hospital would be liable for Jimenez’ negligent acts because it approved Group’s hiring and retention of him. White v. Morris, 114 Ga. App. 618, 619 (152 SE2d 417) (1966).

(b) Hospital moved on two grounds for directed verdict on the issue of apparent or ostensible authority of Hospital for the acts of Dr. Mahoney and CRNA Jimenez: there was insufficient evidence of reliance by Ms. Hammonds; the doctrine applies only to emergency room physicians.

Georgia adopted the doctrine of apparent agency medical malpractice actions in Brown, supra. It requires that “one . . . represents that another is one’s agent so that plaintiff justifiably relies on the care or skill of the apparent agent whose negligence causes the injury. It is not enough that plaintiff simply believes there is an agency relationship. There is an objective standard. The apparent principal must represent or hold out the apparent agent.” Richmond, supra at 508, 509; Whitaker v. Zirkle, 188 Ga. App. 706, 709 (2) (374 SE2d 106) (1988).

The narrow application of the theory only to emergency rooms was rejected in Whitaker, supra, which applied it to in-hospital radiology services. The rationale extends to anesthesiology in other states. Paintsville Hosp. Co. v. Rose, 683 SW2d 255, 257 (Sup. Ct. Ky. 1985), is illustrative: anesthesiologists, pathologists, radiologists, and emergency room physicians “all . . . share the common characteristic of being supplied through the hospital rather than being selected by the patient.”

There was objective evidence that the anesthesiologist and CRNA were acting for Hospital. When Ms. Hammonds was admitted by her private physician, Dr. Brand, she was presented with an admission form headed “Doctors Hospital of Augusta, Inc.” It stated she understood “the price of the room does not include the cost of laboratory, x-ray,. drugs, dressings, operating room, anesthesia and other special treatments required for treatment.”

The Request for Operation form, requiring the signature of each patient upon admission, was headed “Humana Hospital Augusta” and stated, “I request the administration of anesthesia and the use of such anesthetic agents as may be deemed necessary and advisable. . . .”

Ms. Hammonds was not seen by an anesthesiologist until she had been prepared for her operation, given morphine, placed on a stretcher, and taken to the preoperative area. She had been seen only by a CRNA, the choice of whom had not been given to her. Because she herself was a Licensed Practical Nurse and was in training to become a Registered Nurse, the jury could have found she was aware that a nurse does not practice independently and must be overseen by a physician provided by the hospital, since she had been given no input into selection of personnel. As stated in Richmond County, supra at 509: “[m]ost modern hospitals hold themselves out to the public as providing many health related services including services of physicians. A patient is likely to look to the hospital, not just to a particular doctor he comes into contact with through the hospital.”

As to reliance by Ms. Hammonds on Humana, there was no direct evidence of affirmative statements made by her but such reliance is subject to proof by circumstantial evidence. OCGA §§ 24-1-1 (4) & 24-4-9. It was adequate for an inference of reliance. Denial of the directed verdict on this ground was not error.

7. Hospital’s third enumeration urges error in denial of the motion for directed verdict on the ground that the Hospital cannot be liable for acts involving professional judgment of Jimenez. It is presented here also as to Dr. Mahoney, but that was not part of the motion made at trial and will not be considered.

Hospital concedes that a hospital may be liable for the professional judgment of its employees under the apparent agency theory in Brown, supra. Because such a theory was properly submitted to the jury, this enumeration need not be further addressed.

8. At the close of all evidence, Hospital renewed its motion for directed verdict and added a new ground, that of “borrowed servant.” It contended that even if Jimenez were Hospital’s, he was “borrowed” by Dr. Mahoney when he came in the room, absolving Hospital of liability. Enumerations 4 & 5 allege error in denial of the motion on this ground and the failure to instruct the jury on the issue.

The “borrowed servant” does not apply, given the facts. Dr. Ma-honey was not present in the operating room when part of the alleged negligence occurred and the first intubation and medication were undertaken, after the laryngospasm occurred. The motion and jury instruction were both correctly denied. Ross, supra; Atlanta Gas Light Co. v. Redding, 189 Ga. App. 190, 191 (3) (375 SE2d 142) (1988).

9. The remaining enumerations deal with the jury charge. To the extent Hospital objected that certain charges should not have been given because the court should have granted directed verdicts on these issues, it follows from what we have decided above that such charges were not inappropriate.

Decided March 15, 1990

Rehearings denied March 28, 1990

Smith, Gambrell & Russell, David M. Brown, Stephen M. Forte, Marianne Maher, Elizabeth S. Haley, for appellant (case no. A89A2006).

The court’s charges on actual agency (plaintiff’s Request 13), apparent agency (plaintiff’s Request 24), and the principles of OCGA § 51-2-5 (plaintiff’s Request 22) were objected to.

“ The court’s instruction to the jury should be looked to as a whole, and if the applicable law is stated accurately and fairly, in such manner as to work no prejudice, then this court will not consider a challenge to the wording of isolated segments. (Cits.)’ Georgia Kraft Co. v. Laborers’ Intl. Union, 170 Ga. App. 581 (3) (371 SE2d 602) (1984).” Macon-Bibb County Hosp. Auth. v. Whipple, 182 Ga. App. 195, 196 (2) (355 SE2d 83) (1987).

Heeding this panoramic concept, we conclude that the court accurately covered these principles and that the charge was not inaccurate or misleading.

It was a correct statement of the law, as the court charged, that if Hospital were found to be providing professional services through its actual or apparent agent, the provision of those services should be judged by the standard of such profession. Wade v. John D. Archbold Mem. Hosp., 252 Ga. 118, 119 (311 SE2d 836) (1984); Emory Univ. v. Porubiansky, 248 Ga. 391, 393 (282 SE2d 903) (1981); cf. Richmond County Hosp. Auth., supra.

The appropriateness of the charges based on OCGA § 43-26-9 and on admissions has been determined in Divisions 1 and 2. In addition, with regard to admissions attributable to Hospital, the admission forms and nurses’ notations arguably contained several statements adverse to Hospital’s interest. These forms and notations were required to be kept as part of the admission clerks’ and nurses’ job duties. The charge was appropriate.

Hospital contends in general that the charge was confusing and that the court’s failure to use the special verdict form submitted by it requires reversal.

The use of such form was not mentioned by Hospital until after its objections to the charge. Failure of a court to so submit the case is not error in the absence of an abuse of discretion. OCGA § 9-11-49; News Pub. Co. v. DeBerry, 171 Ga. App. 787, 790 (3) (321 SE2d 112) (1984); compare Denny v. D. J. D., Inc., 186 Ga. App. 727, 730 (3) (368 SE2d 329) (1988). Since both theories upon which suit was brought were properly submitted to the jury, there was no error in failing to use such a form.

Judgments affirmed.

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

Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, Ronald R. Coleman, Jr., Stephen Sparwath, for appellant (case no. A89A2007).

Bell & Bell, John C. Bell, Jr., Walbert & Hermann, Paul D. Hermann, James D. Findlay, for appellees.