author: Pope, Judge.

text:
    A91A0185.
    MADDOX v. BROWN et al.
    (408 SE2d 719)
   Pope, Judge.

Plaintiffs John and Pamela Brown entered into a contract with defendant Frank Maddox d/b/a Frank Maddox Construction Company for the building of a house. The evidence at trial showed the house was to be built on a “cost plus” basis, with plaintiffs to reimburse defendant for all costs of construction plus pay him a fee of $5,500 for his services as contractor. After the house was constructed plaintiffs sued defendant for breach of contract and fraud, alleging defendant was overpaid because he never submitted documentation of expenses to cover some of the payments made to him, alleging construction defects in the house and alleging defendant had defrauded them by misrepresenting his services and overcharging them. Defendant counterclaimed for additional payments allegedly due under the contract and for damages for abusive litigation. Judgment was entered in favor of plaintiffs pursuant to the jury verdict awarding $21,843.69 in actual damages, $30,000 in punitive damages and $6,560 for attorney fees. Defendant appeals.

1. The trial court did not err in granting a directed verdict to plaintiffs on defendant’s counterclaim for the cost of constructing additions to the original plan of the house. Defendant agreed at trial that the contract was for cost of construction plus a contractor’s fee. Because the evidence showed plaintiffs fully paid defendant for the bills submitted and, in fact, a sum in excess of the bills submitted, no issue was presented to submit to the jury on defendant’s claim for an amount due under the contract. Nor did the trial court err in granting directed verdict to plaintiffs on defendant’s counterclaim for abusive litigation. When this case previously appeared before this court in Maddox v. Brown, 193 Ga. App. 158 (387 SE2d 584) (1989), we ruled that the record contained insufficient evidence to sustain plaintiffs’ motion for summary judgment on defendant’s counterclaim for abusive litigation. At trial, sufficient evidence was presented to create an issue for jury determination on each of plaintiffs’ claims, including, as discussed in Division 2, below, the claim for fraud. Because plaintiffs’ claims presented justiciable issues of law and fact and the claims were not lacking in substantial justification, then directed verdict was proper on defendant’s counterclaim for abusive litigation. Cf. Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986).

2. The trial court did not err in denying defendant’s motion for directed verdict on plaintiffs’ claim for fraud. “To recover in tort for fraud the plaintiff must prove five essential elements: (1) That the defendant made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the plaintiff; (4) that the plaintiff relied on the representations; (5) that the plaintiff sustained the alleged loss and damage as the proximate result of their having been made.” (Citation and punctuation omitted.) Plough Broadcasting Co. v. Dobbs, 163 Ga. App. 264, 265 (293 SE2d 526) (1982). Plaintiffs testified that they originally asked defendant to provide labor for the construction of the house while they, as owners, acted as general contractor. Defendant, however, represented that if he were hired as general contractor he would be able to pass along savings to plaintiffs by obtaining a contractor’s discount on materials. Evidence was presented that no discount was obtained on certain items. Defendant also did not see that the correct amount of sales tax was charged for materials billed to plaintiffs. Defendant represented that the construction would be completed within 90 days of the closing of the construction loan, when in fact construction took almost twice that long. Moreover, even at trial, defendant did not provide plaintiffs with bills for all the material and labor charged to them. We cannot say as a matter of law that the facts would preclude the jury from finding each of the elements of fraud. “It is only where reasonable persons may not differ as to the proper inferences to be drawn from the evidence that it is proper for the judge to remove the case from jury consideration. [Cit.] The trial court was correct in denying [defendant’s motion] for directed verdict.” Id. at 266.

3. Contrary to defendant’s argument, plaintiffs did not strike from the complaint all claims for punitive damages by striking the paragraph alleging a decrease in the value of the house due to construction defects. The complaint still alleged damages for fraud. “The perpetration of a fraud is one of the specific reasons for allowance of punitive damages.” Champion v. Martin, 124 Ga. App. 275, 277 (2) (183 SE2d 571) (1971). Thus, the trial court did not err in instructing the jury on punitive damages.

4. Defendant argues the trial court erred in failing to charge that the proper measure of damages is the difference between the actual value of the house built and the contract price, even though defendant made no request for such a charge. Instead, the trial court instructed the jury that if it found plaintiffs had suffered loss of use of their property as a result of the contractor’s defective workmanship, plaintiffs could recover damages for loss of use as well as costs of repairing the defects. This was also a proper measure of damages and the charge was not in error. See Coursey Bldg. Assoc. v. Baker, 165 Ga. App. 521 (7) (301 SE2d 688) (1983).

5. Contrary to defendant’s argument, the verdict does not reflect a double recovery for both breach of contract and tort damages. “Even in an action for breach of contract, where there were matters of record relating to fraud, punitive damages can be awarded, for ‘(f)raud, if found, is tortious conduct.’ [Cits.]” Clark v. Aenchbacher, 143 Ga. App. 282, 284 (1) (238 SE2d 442) (1977). See also Division 7, infra.

6. Defendant was not denied the right to a thorough cross-examination of plaintiff Mr. Brown regarding the allegations in the complaint of breach of contract for a stated sum, since it was abundantly clear from plaintiff’s direct testimony that plaintiffs were proceeding only on the theory alternatively pleaded in the complaint that the contract was for cost plus a contractor’s fee.

7. Although defendant argues the trial court erred in not requiring plaintiffs to elect to proceed either in tort or for breach of contract, a reading of the jury instructions shows no reversible error. The only instruction given relating to breach of contract stated that such damages were measured by the amount of profit the contractor lost as a result of the breach. Thus, it is clear that this instruction related only to defendant’s counterclaim against plaintiffs for their alleged breach of contract, even though the court announced that it had directed a verdict in favor of plaintiffs on that claim. The only charges that related to plaintiffs’ claim for damages were worded in terms of tort. As noted in Division 5, above, plaintiffs were not wrongly permitted to recover damages both in tort and contract.

Decided July 1, 1991

Reconsideration denied July 16, 1991

John L. Watson, Jr., for appellant.

Brown & Romeo, Robert T. Romeo, for appellees.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

       This is the third appearance of this case in this court. Previous opinions addressed the trial court’s rulings on plaintiffs’ motions for summary judgment on defendant’s counterclaim. See Maddox v. Brown, 193 Ga. App. 158 (387 SE2d 584) (1989); Maddox v. Brown, 188 Ga. App. 728 (374 SE2d 222) (1988). Finally, the case proceeded to trial and this appeal addresses the jury verdict.


source: Caselaw Access Project

license: Public Domain

text:
    A91A0405.
    SHANNON v. RADO.
    (408 SE2d 441)
   Pope, Judge.

Plaintiff Stuart A. Rado sued defendant Grant W. Shannon for libel and was awarded judgment on a jury verdict of $1,000 general damages and $100,000 punitive damages. Defendant appeals.

The trial evidence shows defendant was an employee of Jameson Associates, Inc., a career consulting firm. Plaintiff was a dissatisfied client of a competing consulting firm and had undertaken a nationwide consumer advocacy campaign against the career consulting industry. In the course of his efforts, plaintiff contacted by letter approximately 1,300 clients or former clients of Jameson Associates. Jameson received letters of complaint from some of its clients which referred to plaintiff and information plaintiff had supplied to them. Defendant responded to some of these letters, two of which form the basis of plaintiff’s complaint. One letter stated: “Stuart A. Rado has been unemployed for many years. We have heard that he lives on a trust fund and occupies his leisure time spreading injurious falsehoods concerning our firm and others. His views are wrong.” Another stated: “Stuart Rado . . . appears to lead a gay, jobless, trust-funded life, spreading injurious falsehoods concerning Jameson Associates. In fear of Aids [sic], I would not touch anything he lays a hand on. Rado is into his own thing and likely has little interest in your welfare.”

1. Defendant argues plaintiff is a public figure for the purpose of the controversy at issue in this case and, thus, the trial court erred in failing to instruct the jury that plaintiff could recover damages for libel only if actual malice is shown.

In determining whether a plaintiff is a public figure, the relevant issue is “the ‘nature and extent of (this) individual’s participation in the particular controversy giving rise to the defamation.’ [Quoting Wolston v. Reader’s Digest Assn., 443 U. S. 157, 167 (99 SC 2701, 61 LE2d 450) (1979).] The standard to be met is: 1) Did plaintiff voluntarily thrust himself into the vortex of this particular controversy? 2) What was the nature and extent of his participation in this particular controversy? 3) Did he encourage the public’s attention in an attempt to influence the outcome of this particular controversy?” Hemenway v. Blanchard, 163 Ga. App. 668, 671 (294 SE2d 603) (1982).

In the case now before us, the answer to the first and third of these questions is resoundingly, “Yes.” As to the second question, the evidence shows plaintiff participated extensively in the controversy. Plaintiff commenced a nationwide campaign to expose what he believed to be fraudulent practices in the career counselling industry. He testified that CBS television network broadcast an exposé of the issue on its “60 Minutes” program as a result of his bringing the story to the network’s attention. Newspaper articles from the Baltimore Sun, Chicago Tribune and USA Today and an article from U. S. News & World Report were admitted into evidence which quoted plaintiff, pictured him and identified him as a leading consumer advocate for complaints against career counselling firms. He clearly sought public attention in an attempt to influence the outcome of the controversy. Where, as here, a plaintiff in a defamation action thrusts himself into the forefront of a public controversy at issue he becomes a public figure in regard to that issue and can recover damages only if actual malice is shown. See Woy v. Turner, 573 FSupp. 35 (N.D. Ga. 1983). See generally Curtis Publishing Co. v. Butts, 388 U. S. 130 (87 SC 1975, 18 LE2d 1094) (1967).

Whether a plaintiff in a defamation action is a public figure is an issue for the judge. Williams v. Trust Co., 140 Ga. App. 49 (II) (230 SE2d 45) (1976). We hold the trial court erred in finding the plaintiff in this case is not a public figure for the purposes of this particular controversy and in failing to instruct the jury on the necessity of finding actual malice before damages could be awarded to plaintiff.

Defendant’s motion for new trial should be granted. We turn now only to those additional errors enumerated by defendant which may recur upon retrial of the case.

2. We find no error in excluding certain hearsay testimony by co-defendant Edward Bandtlow. Defendant argues the testimony is admissible as an exception to the hearsay rule because it is offered to explain his conduct in writing the letters which form the basis for plaintiff’s complaint and to show he obtained the information contained in the letters from Bandtlow. Defendant’s own testimony adequately establishes these facts, as is illustrated by the verdict awarding defendant $50,500 in his cross-claim against Bandtlow alleging he is entitled to indemnity from Bandtlow for any judgment entered against him in the case. It was not necessary to admit in evidence the information Bandtlow had obtained from third parties, some of whom were unidentified.

Decided June 20, 1991

Reconsideration denied July 16, 1991

Greer, Klosik & Daugherty, Jeffrey F. Leasendale, for appellant.

Stanley M. Lefco, Ned Blumenthal, for appellee.

3. Defendant’s argument that the award of punitive damages in a civil case is unconstitutional has been rejected by the Georgia Supreme Court in Hospital Auth. of Gwinnett County v. Jones, 259 Ga. 759 (3, 4 & 5) (386 SE2d 120) (1989). Thus, the trial court did not err in denying defendant’s motion for partial summary judgment on plaintiff’s claim for punitive damages.

We need not address defendant’s remaining enumerations of error.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A0473.
    LEASEFIRST v. PAULK.
    (408 SE2d 707)
   Pope, Judge.

On February 20, 1990, plaintiff/appellant LeaseFirst filed a complaint against defendant/appellee Jerry M. Paulk d/b/a Jerry’s Grocery in the Sixth Circuit Court for the County of Oakland, Michigan. In that case, LeaseFirst sought damages for Paulk’s alleged breach of a lease agreement for a yogurt machine. On June 21, 1990, that court granted a default judgment in the amount of $12,864.36 in favor of LeaseFirst. On July 30, 1990, the Clerk of the Superior Court of Coffee County issued a writ of fieri facias in the same amount and recorded it on the general execution docket of Coffee County.

In August of 1990, Gerald K. Flagg, Esq., sought to secure a garnishment of Paulk’s bank account on behalf of LeaseFirst. On September 11, 1990, Paulk filed a traverse to that garnishment in the Superior Court of Coffee County. The court set a hearing for September 20, 1990, to consider the traverse and a motion to set aside judgment, which Paulk had also filed.

Approximately ten minutes before that hearing, LeaseFirst filed a motion for continuance by facsimile. At the hearing the trial court denied the motion for continuance, and set aside the garnishment. The court did not rule on Paulk’s motion to set aside the judgment because the parties had reached an agreement that the hearing on that motion should be continued. LeaseFirst appeals the trial court’s decision to set aside the garnishment and the trial court’s denial of its motion for a continuance.

1. LeaseFirst contends that the trial court committed reversible error in finding that the garnishment should be set aside because it was not brought by a proper person. There were two affidavits submitted to the Superior Court of Coffee County by Gerald Flagg, Esq., an attorney licensed to practice in Michigan, but not in Georgia. One affidavit was clearly submitted in support of LeaseFirst’s garnishment. OCGA § 18-4-61 sets forth the requirements for the submission of an affidavit for issuance of a summons of garnishment. That Code section provides in pertinent part: “The plaintiff, the plaintiff’s attorney at law, or the plaintiff’s agent shall make, on personal knowledge, an affidavit setting forth that the plaintiff has a judgment against a named defendant. . . .” (Emphasis supplied.) The affidavit filed with the trial court that was clearly in support of LeaseFirst’s garnishment action was submitted on an affidavit form supplied by the trial court. On the affidavit for garnishment form, following the name of the affiant, it reads: “who on oath says that he is (Agent for Plaintiff) (Attorney at Law for Plaintiff) (Plaintiff) herein.” On the affidavit for garnishment form submitted by Gerald Flagg, Esq., on behalf of LeaseFirst, he underlined the parenthetical which contained the words “Attorney at Law for Plaintiff.” If Flagg had been simply acting as LeaseFirst’s agent, as it contends, he should have underlined that parenthetical instead. Furthermore, Flagg submitted a separate affidavit to the trial court in this case in which he set forth that he was an attorney for LeaseFirst and that he is an attorney in good standing in the State of Michigan. Flagg also signed that affidavit as attorney for LeaseFirst. Clearly, Flagg purported to act as attorney for LeaseFirst before the Superior Court of Coffee County.

State Bar of Georgia Rule 1-201 mandates that “[a]ll persons now or hereafter authorized to practice law in this State shall be members of the State Bar of Georgia.” Rule 1-203 (A) (1) sets forth an exception to that mandate for “[a] person who is not a member of the State Bar of Georgia, but who is licensed to practice in a state or states other than Georgia, and is in good standing in all states in which such person is licensed.” Such a person “may be permitted to appear in the courts of this state in isolated cases in the discretion of the judge of such court. . . .”

The affidavits in question were filed in the Superior Court for Coffee County. Before filing any document or pleading with that court, Flagg should have become familiar with Georgia’s Uniform Superior Court Rules. Rule 4.4 governs the practice of law in the superior courts of this state by attorneys who are not licensed to practice law in Georgia. That rule requires that an attorney, who is admitted to practice in the courts of record in another state and who seeks to participate in an action before a superior court of Georgia, must apply for special admission to practice before the court, and inter alia, secure the services of an attorney who is licensed to practice before the superior courts of Georgia. For obvious reasons, the courts of this state have an interest in insuring that those persons practicing before them will be familiar with any applicable rules and procedures.

Decided June 11, 1991

Reconsideration denied July 16, 1991

Hudson & Solomon, James D. Hudson, for appellant.

Farrar, Farrar & Hennesy, Curtis Farrar, Jr., Bruce B. Edwards, Jr., for appellee.

There is no evidence to suggest that Flagg was familiar with the dictates of Uniform Superior Court Rule 4.4 or that he sought to comply with that rule. One cannot purport to act as an attorney, as Flagg did before the Superior Court of Coffee County, and avoid compliance with the rules governing the practice of attorneys from other states, merely because the particular document filed with the court could have been filed by a person acting simply as an agent for the plaintiff. The trial court correctly dismissed the garnishment that Flagg obtained in his capacity as an attorney for LeaseFirst.

2. We have carefully considered LeaseFirst’s remaining enumerations of error and find them to be without merit.

Judgment affirmed.

Birdsong, P. J., and Cooper, J. concur.


author: Beasley, Judge.

text:
    A91A0628.
    DENT et al. v. MEMORIAL HOSPITAL OF ADEL, INC.
    (408 SE2d 473)
   Beasley, Judge.

The parents of Mark Alan Dent, and the father as administrator of his estate, instituted this medical malpractice action against Memorial Hospital of Adel and others for the wrongful death of their 15-month-old son. They appeal from the trial court’s grant of summary judgment to the hospital.

On motion for summary judgment under OCGA § 9-11-56, the evidence is viewed in favor of the non-moving plaintiffs. Drake v. Leader Nat. Ins. Co., 153 Ga. App. 314, 316 (1) (265 SE2d 114) (1980), and cits. At approximately 10:30 p.m. on November 21, 1987, Mark Alan Dent stopped breathing. When his mother picked the child up, his head fell back and his mouth opened. The parents revived the child through CPR and took him to the hospital’s emergency room.

Dr. Howard McMahan was on duty. After examining the child and speaking with the parents, he concluded that the child had suffered an apneic event, which is a transient cessation of respiration, and had an upper respiratory tract infection. He was also concerned that a sibling had died 12 days earlier from Sudden Infant Death Syndrome. At this time the child was breathing spontaneously and his vital signs were stable.

Dr. McMahan decided that the child should be admitted to the hospital, and he left him in the care of the nursing supervisor, Shirley Hardy. He gave instructions that the child’s vital signs be taken hourly, that he be placed on a pediatric apnea monitor, and that a cool mist vaporizer be put in his room. Dr. McMahan’s purpose in ordering the monitor was so that the staff would be notified in a timely fashion in the event the child stopped breathing, so that resuscitative efforts and intervention could be instituted quickly.

Nurse Hardy testified by deposition that beginning at about 12:30 a.m., she made at least six attempts to activate the apnea monitor, to monitor the child’s ECG recording and heart rate and his respiratory rate or number of breaths per minute. She did not activate the temperature and blood pressure parts of the multi-purpose monitor. The monitor, which visually displays the rates, emits a loud audible alarm when a breath is not taken within a certain period of time or if an electrode becomes detached so that monitoring stops.

The problem was that the alarm sounded each time she attached the electrodes on the lead wires to the child’s chest, even though the child was breathing. She consulted another nurse, who was unable to help, as well as the instruction manual for the monitor. Eventually she determined that the electrodes she was using were too small, in that the size of the electrodes was based on the age of the child, and this child was large for his age. When the larger electrodes were used, the monitor displayed his breathing and the alarm did not sound. She testified that she set the alarm for ten seconds, so that if the child did not take a breath for ten seconds, the alarm would sound.

After the monitor was set up, nurse Hardy and nurse’s aide Virginia Ratts began assessing the child on a rotating basis each half hour. The light was turned off in the room, and the mother and child fell asleep. The mother awoke to notice that a nurse checked the room about 4:00 a.m. and then she fell asleep again. She awakened at approximately 4:20 a.m., did not hear the monitor’s beeping sound, saw straight lines on the heart and respirator displays, and discovered that the child was not breathing. The leads to the monitor were attached, and he looked dark around his ears and mouth. She ran to the nurses’ station for help.

Nurses’ aide Ratts ran to the room and instructed Mrs. Dent to fetch Shirley Hardy. Nurse Hardy testified that she ran to the room, summoned by the alarm, and saw Mrs. Dent on the way. She found the child had cyanosis (blue coloring) around his mouth and was not breathing, although a heartbeat registered on the monitor. The mother testified that the alarm did not sound and that when she returned to the room, she noticed that both alarm switches were in the “off” position. She said to nurse Hardy, “Y’all forgot to turn the alarm back on,” and the nurse looked at her “like [she] didn’t know what [she] was talking about and told [her] to get out of the way so she could work.” Mrs. Dent repeated this statement to others, including Dr. McMahan, who made no response. Nurse Hardy testified that she turned off the alarm when she entered the room. Thus there is a conflict in the evidence as to whether the alarm switch was on or off at the time the child stopped breathing.

When nurse Hardy arrived in the room, she instructed another nurse to bring in an “Ambu bag” in order to resuscitate the child. Next she called for the “crash cart” and told someone to summon Dr. McMahan. When he arrived a few minutes later, the nurses were attempting to resuscitate the child.

Dr. McMahan testified that there were several problems with items on the crash cart. The laryngoscope blade was too large, as were the pads, and there was no pediatric bicarbonate solution on the cart. The nurses were using too large a mask, although there was a pediatric mask available. An infant-size blade and bicarbonate solution were obtained from nearby and the pads available from the cart were torn in half. The smaller mask was substituted and the child was intubated.

The child’s heartbeat resumed but his breathing did not and Dr. McMahan transferred him to another hospital in an ambulance with respiratory intubation. There he died four days later without ever resuming breathing on his own for any sustained period.

In support of its motion for summary judgment, the hospital submitted an expert affidavit executed by Dr. McMahan. He stated that he personally participated in the care and treatment of the child; that he is familiar with the applicable standards of care for hospitals and for nurses; and that it is his opinion “that the care rendered to Mark Alan Dent by nursing personnel and other employees at the [hospital] met or exceeded that degree of care and skill exercised by similar professionals generally under similar conditions and like surrounding circumstances. Likewise, the equipment, facilities, and other personnel of the hospital met the standard of care for the community.” He also stated that it is his “professional opinion that no act or omission by any nursing personnel or other employee of the [hospital] either caused or contributed in any way to any injury allegedly suffered by Mark Alan Dent ... or ... to the death of Mark Alan Dent.” (Yet in his deposition nearly two years earlier he testified that he was never, to his satisfaction, clear on whether the alarm sounded or not. “There were conflicting reports,” he said.)

Pursuant to OCGA § 9-11-56 (e) and Howard v. Walker, 242 Ga. 406 (249 SE2d 45) (1978), this expert opinion must be countered with a contrary expert opinion in order for plaintiffs to avoid summary judgment. See also Beauchamp v. Wallace, 180 Ga. App. 554 (349 SE2d 791) (1986), citing Payne v. Golden, 245 Ga. 784 (267 SE2d 211) (1980).

Countering Dr. McMahan’s opinion are the two affidavits executed by Dr. Scott R. Crowgey, one filed with the complaint and the other filed in response to the motion. He averred that he is a medical doctor who has served as a pediatric resident at Grady Hospital and Emory University Hospital and serves as visiting faculty on the medical staff in the pediatric department of those two hospitals as well as research engineer in biomedical research at George Institute of Technology. He has degrees and work experience in biomedical engineering, medicine, and electrical engineering.

Dr. Crowgey stated that he based his opinion on the certified medical records, among other things. It was his opinion that the hospital was negligent and that the care rendered by the nursing personnel “did not meet the degree or standard of care exercised by similar professionals generally under similar conditions and like surrounding circumstances. In addition, the equipment, facilities and other personnel of the [hospital] did not meet the required standard of care for similar hospitals in similar communities.” He spelled out the particular deviations from the required standard of care as follows:

“The [hospital personnel] required an unnecessarily long period of time to initiate proper operation of the monitor, clearly indicating that [they] were improperly and/or poorly trained in the operation and use of pediatric monitors;

“The monitor alarm failed to sound when plaintiffs’ decedent experienced an apneic event, clearly indicating that the . . . personnel negligently operated the monitor during the course of treatment of Mark Alan Dent;

“The . . . personnel failed to properly supervise the operation and use of the monitor in their treatment of plaintiffs’ decedent leading to the failure of the monitor to sound when [he] experienced an apneic event;

“The hospital’s ‘crash cart’ which was used in an attempt to resuscitate plaintiffs’ decedent was inadequately and improperly equipped, thereby delaying resuscitation of plaintiffs’ decedent, increasing the period of time he was without oxygen, and causing his severe and permanent damage which led to his subsequent death.”

In the first affidavit he stated that the factual scenario regarding the monitor “gives a clear indication that the [hospital] . . . failed to exercise that degree of ordinary care required of a health care facility in the same or similar location as that of defendant in the supervision, operation, use and control of the pediatric monitor.”

The trial court concluded that plaintiffs’ evidence by way of Dr. Crowgey’s affidavits failed to meet the requirements for controverting defendant’s expert opinion so as to create an issue of fact, as set out in Humphrey v. Alvarado, 185 Ga. App. 486, 487 (2) (364 SE2d 618) (1988). What Dr. Crowgey failed to do, the trial court concluded, was “to set out the parameters of the appropriate standard of care, and ... to explain set particulars of how [the hospital’s] conduct deviated from this standard.” The court regarded Dr. Crowgey’s statements as insufficient conclusory statements of negligence.

There is evidence that the staff had great difficulty in successfully activating the monitor, and there is some evidence that the alarm switch was not turned on so that there was a delay in resuscitation efforts. There is some evidence that this delay was lengthened by the lack of proper accessories on the crash cart for this particular child despite the knowledge of the hospital personnel that the crash cart might be needed for this child whose respiration was problematic.

Humphrey cites earlier cases for the test with respect to the plaintiffs’ counter expert affidavit, which includes that the countering expert “ ‘must state the particulars in which the defendant’s treatment of the plaintiff was negligent. . . . [T]he plaintiff[s] cannot prevail on motion for summary judgment by merely presenting a conclusory opinion that defendant was negligent or failed to adhere to the professional standard. [They] must state the particulars. [They] must establish the parameters of the acceptable professional conduct and set forth how or in what way the defendant deviated therefrom.’ ”

The law does not require the use of “magic words” to constitute a case-saving expert opinion. “Magic words alone, no matter how often repeated, do not make a fact. Rather the facts in the record must be sufficient to meet the legal standard embodied in the magic words.” Jackson v. Gershon, 251 Ga. 577, 579 (308 SE2d 164) (1983). “ ‘The failure of a medical expert to use “magic words” in accusing a colleague of negligence in a medical malpractice case will not deprive his opinion of all efficacy where it is clear that the witness is of the opinion that the colleague failed to exercise due care in treating the patient.’ ” Hively v. Davis, 181 Ga. App. 733, 734 (353 SE2d 622) (1987). “[Mathematical certainty is not required in affidavits offered to demonstrate medical negligence.” Hall v. Okehi, 194 Ga. App. 721, 723 (2) (391 SE2d 787) (1990). What is to be considered is “whether the medical affiant set forth standards and pointed out ways in which the defendant . . . failed to meet them.” Ibid.

Decided June 28, 1991

Reconsideration denied July 16, 1991

Dennis & Corry, Robert E. Corry, Jr., Robert G. Ballard, William E. Gray II, for appellants.

From a reading of Dr. Crowgey’s affidavits, it is clear that his opinion was that the standard is that when a hospital has a pediatric respiratory monitor, its staff must know how to use it, and must use it, to achieve its purpose of early detection of a problem so that speedy intervention can be effected and the child restored to oxygen and breathing before harm sets in. It is also clear that his opinion was that the standard is to have a crash cart equipped and ready to treat the particular child being monitored in the event that breathing stops. Finally, it is clear that in his opinion the hospital failed in these regards, that the monitor was not properly activated because the alarm was off and the cart was missing necessary accessories, and that the resulting delays increased the period of time that the child was without oxygen, which caused the damage leading to his death. Proximate cause is also a medical question in such cases. See Eberhart v. Morris Brown College, 181 Ga. App. 516 (1) (352 SE2d 832) (1987), and cits.

It cannot be said that this “merely . . . [presents] a conclusory opinion that the defendant was negligent or failed to adhere to professional standards of conduct without stating the parameters of such conduct and the particulars of the defendant’s deviation therefrom. . . .” 0-1 Doctors Memorial Holding Co. v. Moore, 190 Ga. App. 286, 287 (1) (378 SE2d 708) (1989). Instead, read in their entirety, the affidavits set out what should have been done and compared that to what was done. Loving v. Nash, 182 Ga. App. 253, 256 (1) (355 SE2d 448) (1987). This proof, too, must be viewed in favor of the party opposing the motion. Hall, supra at 724.

As in Jackson, supra at 580, there was thus expert testimony “which was not inconsistent with plaintiff’s contention that defendant failed to exercise the requisite professional care, skill and diligence. ‘Summary judgments should only be granted where, construing all inferences against the movant, it yet appears without dispute that the case can have but a single outcome.’ ” That not being the case here, summary judgment was not authorized.

Judgment reversed.

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

Sullivan, Hall, Booth & Smith, John E. Hall, Jr., Roger S. Sumrall, for appellee.


text:
    A91A0680.
    FOWLER v. THE STATE.
    (408 SE2d 449)
   Pope, Judge.

We affirm defendant Roy Lee Fowler’s conviction for driving under the influence of alcohol.

1. The trial court did not err in admitting evidence of the result of the breath test administered to defendant on an Intoximeter Breath Analyzer 3000 machine. The officer who administered the test identified a copy of her certificate from the Department of Public Safety to operate the machine and it was admitted into evidence without objection. This certificate naming the type of machine on which defendant was tested was sufficient evidence that the machine was of a design specifically approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation, as required by OCGA § 40-6-392 (a) (1). See Smitherman v. State, 153 Ga. App. 322 (265 SE2d 119) (1980).

2. The trial court did not err in denying defendant’s motion for new trial. Although newly discovered evidence was not enumerated as a ground in defendant’s motion for new trial, he was allowed to argue this ground at the hearing on the motion. At trial, the arresting officer testified that upon stopping the defendant, he read to the defendant a statement of his statutory rights to an independent chemical test pursuant to OCGA § 40-6-392. The officer also testified he might have been recording his encounter with the defendant, but did not have the tape of the encounter with him at trial. At the hearing on defendant’s motion for new trial, defendant presented in evidence a copy of a tape recording which he stated was produced to him by the officer in response to a subpoena issued after the trial. According to the transcript, the only audible words on the tape were, “[e] rasing some of the tape.”

The result of a chemical analysis of a defendant’s breath is admissible in a criminal proceeding only if defendant was duly advised of his statutory rights. See State v. Johnston, 160 Ga. App. 71 (286 SE2d 47) (1981). This prerequisite was satisfied in the case now before us, according to the arresting officer’s testimony. Defendant presented as a witness the companion who was with him at the time he was arrested and yet no evidence was offered to dispute the officer’s testimony that defendant was advised of his rights. Even if the tape recording in question were to cast doubt on the officer’s testimony, it would not provide a ground for new trial because “ ‘a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.’ Emmett v. State, 232 Ga. 110, 117 (205 SE2d 231) (1974). . . .” Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980).

Decided June 25, 1991

Reconsideration dismissed July 16, 1991

Franklin H. Thornton, for appellant.

Daniel W. Lee, Solicitor, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Birdsong, Presiding Judge.

text:
    A91A0997.
    McDOWELL v. LACKEY.
    (408 SE2d 481)
   Birdsong, Presiding Judge.

This interlocutory appeal is from the order of the trial court denying appellant’s motion for summary judgment. We granted application for review on the issue of whether the release executed by appellee/plaintiff and his wife precluded him from asserting against appellant/defendant any cause of action arising out of the incident at issue.

Appellant’s car slid off the road. Appellee, a certified emergency medical technician, went to appellant’s aid; while talking to and attempting to comfort appellant, appellee was struck by a skidding car driven by a third party. Appellee and his wife for valuable consideration executed a settlement agreement with the insurance company of the third party, and thereafter initiated suit against appellant averring a cause of action based on the Georgia rescue doctrine.

The release, captioned in bold letters “RELEASE OF ALL CLAIMS,” pertinently provides: “We [appellee and his wife] ... release and forever discharge [the named third-party driver] and any other person . . . charged or chargeable with responsibility or liability . . . from any and all claims, demands, damages, costs, expenses, loss of services, actions and causes of action arising from any act or occurrence up to the present time, and particularly on account of all personal injury, disability, property damage, loss or damages of any kind sustained or that we may hereafter sustain in consequence of an accident that occurred on or about the 24th day of February, 1989, at or near 5-16 south of Augusta Avenue.” (Emphasis supplied.) Held:

1. Within the meaning of Posey v. Med. Center-West, 257 Ga. 55, 59 (354 SE2d 417), appellant meets the criterion of an averred joint tortfeasor “for the purposes of the general release rule,” and appellee has suffered a “single indivisible injury.” Accordingly, “[a] valid release of one tortfeasor from liability for a harm, given by the injured person, does not discharge others for the same harm, unless it is agreed that it will discharge them.” Id.

2. “A release is a contract itself, and principles of law applicable to contracts generally are also applicable to releases.” 1 EGL (1988 rev.), Accord & Satisfaction, § 16. Thus, “[wjhether the terms of [a release] agreement are clear or ambiguous is a question of law for the court. [Cits.] Only if ambiguity remains after the Court applies the appropriate rules of construction does the parties’ intent become a question ... of fact. [Cits.]” Driscoll v. Schuttler, 697 FSupp. 1195, 1203 (N.D. Ga.); see Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 256 (2) (381 SE2d 322); compare Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308). This rule applies even though the release may be difficult to construe. Kusuma, supra. Accordingly while certain instances of continued ambiguity, as above discussed, regarding the scope of a general release will give rise to a question of fact (compare Whitehead v. Cuffie, 185 Ga. App. 351 (1) (364 SE2d 87)), the interpretation of the release generally is for the court to resolve as a question of law (OCGA § 13-2-1; Driscoll, supra). In interpreting the scope of releases, “[t]he cardinal rule of construction is to ascertain the intention of the parties [, and i]f that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction.” OCGA § 13-2-3. While the intent of the parties to the release may be proven by external evidence as against a third party (Posey, supra at 59), “[w]here the terms of a written [release] contract are clear and unambiguous, the court will look to the [release] contract alone to find the intention of the parties.” Health Svc. Centers v. Boddy, 257 Ga. 378, 380 (359 SE2d 659). And “[a]mbiguity cannot be created merely by ingenuity of counsel.” Kusuma, supra at 256.

We as a court interpret releases; not rewrite them. The intent of the parties is clear and unambiguous; appellant in consideration for the sum received entered a release intending the scope thereof would, at least, include a release and discharge of not only the third-party driver but of “any other person,” from “any and all claims” arising, not only from any act or occurrence up to the date of the release, but in particular from all personal injuries or damages of any kind incurred as a consequence of said accident. This simple language is used in its usual and common significance. It is susceptible of only one reasonable construction: the parties intended the scope of the release would be very broad, and would specifically include “any other person” in addition to the third-party driver. Compare Olympic Dev. Group v. American Druggists’ Ins. Co., 175 Ga. App. 425, 428-429 (333 SE2d 622). Appellant unequivocally falls within the class of “any other person,” within the intended meaning of the release, and thus appellee has released appellant from any and all claims arising from the incident. The trial court erred in failing to grant appellant’s motion for summary judgment.

Decided July 2, 1991

Reconsideration denied July 16, 1991

Dennis, Corry, Porter & Thornton, R. Clay Porter, Linda C. Michel, for appellant.

Robert P. Phillips III, Todd A. Hall, for appellee.

Judgment reversed.

Pope and Cooper, JJ., concur.

On Motion for Reconsideration.

Appellee contends the language in the release in this case and in Posey v. Med. Center-West, 257 Ga. 55 (354 SE2d 417) is identical, and that the Supreme Court held in Posey the release did not release any person other than the specific individual named therein.

We believe the thrust of the holding of the Supreme Court in Posey, supra at 59, is that the rule of law now to be followed regarding releases is: “A valid release of one tortfeasor from liability for a harm, given by the injured person, does not discharge others for the same harm, unless it is agreed that it will discharge them”; and, it reversed judgment because the lower court and this court had followed the conflicting principle of law that “a general release given to one joint tortfeasor [automatically] releases all joint tortfeasors” (Id. at 56; see generally Posey v. Med. Center-West, 180 Ga. App. 674 (350 SE2d 259)). The Supreme Court also added dictum to its opinion indicating that when the lower court deems it necessary in ascertaining the intent of the parties to the release such intent “may be proven by external evidence as against a third party.” (Emphasis supplied.) Posey, supra, 257 Ga. at 59. However, the Supreme Court in Posey did not apply rules of contract construction in an attempt to determine the intent of the parties to the release; neither did they declare invalid, as applied to releases, the well-settled rule of construction that “[w]here the terms of a written [release] contract are clear and unambiguous, the court will look to the [release] contract alone to find the intention of the parties.” Health Svc. Centers v. Boddy, 257 Ga. 378, 380 (359 SE2d 659).

Motion for reconsideration denied.


author: Banke, Presiding Judge.

text:
    A91A0290.
    McGUIRE v. THE STATE.
    (408 SE2d 506)
   Banke, Presiding Judge.

The appellant was convicted on an indictment charging that he had committed an aggravated assault against one Judy Gilbert by assaulting her with a deadly weapon — specifically, a knife.

Ms. Gilbert was attacked from behind and was consequently unable to identify the assailant. However, a passing motorist to whom she had run for help immediately after the assault testified that he had observed “another person standing up, like, on the grass by the sidewalk” at the time, and he positively identified this person as the appellant. He stated that there was a streetlight at the location where the appellant was standing and that after the two of them looked at each other briefly, the appellant “took off running . . . towards [the] Piggly Wiggly.” A third witness who had been present at the scene testified that she heard a woman scream for help and saw a “black man attack a white woman.” Although she could not identify the assailant, she stated that she subsequently saw him “running across the street. . . towards the Piggly Wiggly.” There was additional evidence establishing that the appellant had been present at the scene of the offense shortly before it occurred. Held:

1. The evidence, construed in the light most favorable to the verdict, was amply sufficient to enable a rational trier of fact to find the appellant guilty of the offense charged beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We reject the appellant’s contention that the state’s proof was deficient due to the absence of any direct evidence that the victim had been assaulted with a knife. The victim testified that she was covered with blood following the assault and that she was thereafter hospitalized with a punctured lung. It could reasonably be inferred from this testimony that she had been stabbed with a knife, “even in the absence of the production or verbal description of the weapon used. . . .” Wade v. State, 157 Ga. App. 296, 297 (277 SE2d 292) (1981). Moreover, the appellant effectively stipulated that the victim had been assaulted with a knife. During his charge to the jury, the trial judge stated: “Now, the parties have agreed [during the pre-charge conference] that Judy Gilbert was assaulted with a deadly weapon, this is, stabbed with a knife. The question for you to decide is whether the defendant ... is the person who committed this aggravated assault.” Inasmuch as the appellant did not take issue with this statement, he is not now in a position to challenge the sufficiency of the state’s proof in this regard.

2. The witness who was able to identify the appellant as the assailant during the trial had previously selected his picture from a photographic lineup shown to him by the police. This display had in-eluded the photograph of another man whose picture the witness had previously selected from a mug book; and the officer who had assembled the photographs for the lineup testified at trial that after initially wavering between this other individual’s photograph and the appellant’s, the witness had asked to see a “better picture” of the appellant. The state’s attorney thereupon asked the officer, “Did you have a better picture,” and the officer responded: “Yes sir. We did off the fingerprint card.” The appellant contends that the trial court erred in denying his subsequent motion for mistrial on the ground that this testimony impermissibly placed his character in issue. This contention is without merit. It was shown that the photographic lineup had been conducted subsequent to the appellant’s arrest on the charges for which he was on trial; and under these circumstances, the reference to the fingerprint card did not suggest that he was guilty of any previous crime. Accord Little v. State, 135 Ga. App. 772 (1) (219 SE2d 19) (1975).

3. The appellant contends that the trial court erred in discharging one of the jurors during the course of their deliberations and replacing him with an alternate. The juror in question was discharged on the ground that he had inspected the crime scene on his way home from the courthouse the previous evening, in violation of the court’s instructions, and had discussed his observations in this regard with the other jurors. After questioning each individual juror about the matter, the trial judge stated: “I think he [the juror] has not only violated my instructions, but I do think that he’s tried to influence the other jurors in the case. And I’m going to disqualify . . . [him].” The appellant contends that such action was not authorized in the absence of a showing that the juror’s misconduct had rendered him incapable of returning an impartial verdict. This contention is also without merit.

“The excusal of a juror and the substitution of the alternate juror are matters ‘necessarily within the discretion of the trial court. . . Graham v. State, 171 Ga. App. 242 (5), 249 (319 SE2d 484) (1984). The trial judge is required by OCGA § 15-12-172 to substitute an alternate juror for any juror who “dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause. . . .” The trial judge did not abuse his discretion in concluding that the failure of the juror in question to adhere to his instructions to decide the case solely on the basis of the evidence introduced at trial, combined with the juror’s subsequent conduct in attempting to influence the other jurors to do likewise, constituted “legal cause” for his removal. Indeed, the very reason the appellant contends he was harmed by the excusal of this juror was that the juror “had contradicted the placement of the street light as testified to by the state’s witnesses.”

Decided July 16, 1991.

James A. Nolan, William P. Bartles, for appellant.

Joseph H. Briley, District Attorney, Fredric D. Bright, Assistant District Attorney, for appellee.

4. Although he made no such objection at trial, the appellant contends on appeal that the trial court erred in making the following statement to the jurors immediately after giving them an “Allen charge” during the course of their deliberations: ‘T can tell you that there’s no need writing me any [more] letters. We’re going to be here for a long time because I want this case to come to a conclusion if it’s possible.” The appellant argues that this language was impermissibly coercive under the standard set forth in Sanders v. State, 162 Ga. App. 175 (290 SE2d 516) (1982), in that it was “tantamount to charging that even in the event of any conscientious and irreconcilable differences of opinion between the jurors, one or more jurors would be required to surrender his view in order to reach a verdict.” Id. at 177. We disagree. The instruction in Sanders was: “If you can’t figure the puzzle out, you’ll just have to stay in there until you do.” This is a far cry from telling the jurors, “We’re going to be here for a long time because I want this case to come to a conclusion if it’s possible.” (Emphasis supplied.) In any event, the appellant not only failed to object to the statement at issue after it was made, he affirmatively represented to the trial court that he had no objection to it. Accordingly, this enumeration of error presents nothing for review.

5. Because the appellant affirmatively indicated to the court that he had no objections to the charge as given, the appellant’s remaining enumerations of error likewise present nothing for review. See generally Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980).

Judgment affirmed.

Carley and Beasley, JJ., concur.


author: McMurray, Presiding Judge. Andrews, Judge,

text:
    A91A0658.
    KING v. THE STATE.
    (408 SE2d 509)
   McMurray, Presiding Judge.

Via a three-count accusation, defendant was charged with driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (1) (Count 1) and OCGA § 40-6-391 (a) (4) (Count 2). He was also charged with driving a motor vehicle without effective insurance. Counts 2 and 3 were dismissed by the State and Count 1 was submitted to a jury. Defendant was found guilty on Count 1 of the accusation and a sentence of 12 months and a fine of $1,000 were imposed. Defendant appeals. Held:

1. OCGA § 40-6-391 is not unconstitutionally vague. Steele v. State, 260 Ga. 835 (400 SE2d 1). The trial court did not err in overruling defendant’s “motion to dismiss and plea in bar” and “motion to quash” the accusation.

2. The evidence was sufficient to enable any rational trier of fact to find defendant guilty of driving under the influence beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Ragan v. State, 191 Ga. App. 374, 375 (2) (381 SE2d 589).

3. The trial court erred in charging the burden-shifting language of OCGA § 40-6-392 (b) (3). Simon v. State, 182 Ga. App. 210, 212 (4) (355 SE2d 120); Peters v. State, 175 Ga. App. 463, 466 (2) (333 SE2d 436). This error requires the reversal of defendant’s conviction inasmuch as he was tried only for violating OCGA § 40-6-391 (a) (1). Cf. Simon v. State, 182 Ga. App. 210, 212 (4), supra.

We cannot accept the minority’s harmless error analysis. In determining whether a constitutionally infirm charge is harmless beyond a reasonable doubt, we examine a two-prong test: (1) whether the charge pertained to a matter which the jury had to decide and, if so, (2) whether the charge so invaded the province of the jury that we would have to say that the court, rather than the jury, tried the case. Lewis v. State, 180 Ga. App. 890, 891 (351 SE2d 100).

It is obvious that the trial court’s charge pertained to a matter which the jury needed to address. The first prong of the test is clearly satisfied.

As to the second prong, we are not prepared to say that the trial court’s charge did not influence the jury’s deliberations. True, there was evidence which would lead the jury to conclude that defendant operated a car under the influence of alcohol to the extent that it was less safe for him to drive: The arresting officer testified that defendant smelled of alcohol, swayed and perspired, had red eyes and a flushed face. But the evidence did not demand such a conclusion. The officer acknowledged, for example, that there were other reasons for defendant to be red in the face and to perspire. (After all, the incident took place in Pike County, Georgia, on July 30, 1989.) More importantly, the officer admitted that he talked with defendant for “several minutes” before he decided that defendant was under the influence of alcohol.

We cannot say the trial court’s erroneous, burden-shifting charge was harmless beyond a reasonable doubt. Accordingly, defendant’s conviction must be reversed.

4. The remaining enumerated errors are unlikely to occur upon retrial.

Judgment reversed.

Sognier, C. J., Banke, P. J., Birdsong, P. J., Carley, Pope and Cooper, JJ., concur. Beasley, J., concurs in Divi sions 1, 2 and 4, and in the judgment. Andrews, J., dissents.

Andrews, Judge,

dissenting.

I agree that it was error for the trial judge to charge the burden-shifting language of OCGA § 40-6-392 (b) (3). Sandstrom v. Montana, 442 U. S. 510, 517 (99 SC 2450, 61 LE2d 39) (1979); Francis v. Franklin, 471 U. S. 307 (105 SC 1965, 85 LE2d 344) (1985); Simon v. State, 182 Ga. App. 210, 212 (355 SE2d 120) (1987). However, the error was harmless under the facts of this case. See Rose v. Clark, 478 U. S. 570 (106 SC 3101, 92 LE2d 460) (1986).

The jury was instructed: “If there was at the time an alcohol concentration of 0.10 grams or more, it shall be presumed that the person was under the influence of alcohol as prohibited by paragraphs (1), (2), and (3) of subsection (a) of code section 40-6-391. Now I charge you that a statutory inference, an evidentiary inference is an inference of law. It is a conclusion and an inference which the law draws from given facts. The inference may be rebutted by proof.” The jury was also charged that the defendant was presumed innocent, and that the state carried the burden of proving every element of the offense beyond a reasonable doubt.

This type of rebuttable presumption was characterized in Francis v. Franklin, supra, as a mandatory rebuttable presumption, and though “ ‘less onerous’ than the [conclusive presumption] charge in Sandstrom, [the Court] found it ‘no less unconstitutional’ because it ‘relieves the State of the affirmative burden of persuasion on the presumed element by instructing the jury that it must find the presumed element unless the defendant persuades the jury not to make such a finding.’ ” Williams v. Kemp, 255 Ga. 380, 385 (338 SE2d 669) (1986) (quoting from Francis v. Franklin, supra at 317). Were this strictly a conclusive presumption charge, I would agree with the majority that the conviction should be reversed, but the additional charge that the presumption may be rebutted by proof makes application of the harmless error rule appropriate, in light of the overwhelming evidence in the record. Compare Waters v. State, 195 Ga. App. 288, 292 (393 SE2d 280) (1990) (Birdsong, J., dissenting) (same charge given, but jury not advised that the presumption was rebuttable).

The distinction between conclusive and rebuttable presumptions requires differing applications of the harmless error rule to such burden-shifting charges. Mandatory conclusive presumptions are disapproved not only because they conflict with the accused’s presumption of innocence, but also because they “invade (the) factfinding function which in a criminal case the law assigns solely to the jury.” Sandstrom v. Montana, supra at 523. (Citation and internal quotations omitted.) In Connecticut v. Johnson, 460 U. S. 73 (103 SC 969, 74 LE2d 823) (1983), the Court examined application of the harmless error rule to a conclusive presumption charge. “Under the plurality reasoning, the trial judge’s instruction to the jury, that the elemental fact or facts are conclusively presumed if the predicate fact or facts are proved, is the ‘functional equivalent’ of the direction of a verdict on this issue. Since this would result in the jury’s failing to consider whether there was any evidence on the issue, the plurality held that even overwhelming evidence on the point would not render harmless the giving of the instruction as to the conclusive presumption. As stated by the plurality, ‘(a)n erroneous presumption on a disputed element of the crime renders irrelevant the evidence on the issue because the jury may have relied upon the presumption rather than upon that evidence.’ ” Williams v. Kemp, supra at 383 (quoting from Connecticut v. Johnson, supra at 84-85). Thus, where such a conclusive presumption is involved a Sandstrom error can be harmless only in those “rare situations in which the reviewing court can be confident that [such] error did not play any role in the jury’s verdict.” Connecticut v. Johnson, supra at 87.

The harmless error rule is more widely applicable to the mandatory rebuttable presumption at issue here because, although it also conflicts with the presumption of innocence, it does not destroy the factfinding function of the jury by removing from the case the issue of whether the defendant was under the influence of alcohol to the extent that it was less safe for him to drive. “A mandatory rebut-table presumption does not remove the presumed element from the case if the State proves the predicate facts, but it nonetheless relieves the State of the affirmative burden of persuasion on the presumed element by instructing the jury that it must find the presumed element unless the defendant persuades the jury not to make such a finding.” Francis v. Franklin, supra at 317. In the present case the jury was instructed that the presumption may be rebutted by proof. This charge extended the factfinding function of the jury to a consideration of all the evidence, rather than instructing it to ignore the evidence in favor of a conclusive presumption. In considering application of the harmless error rule to a rebuttable presumption charge, the court in Rose v. Clark, supra, used the traditional standard set out in Chapman v. California, 386 U. S. 18 (87 SC 824, 17 LE2d 705) (1967). “ ‘Chapman mandates consideration of the entire record prior to reversing a conviction for constitutional errors that may be harmless.’ The question is whether, ‘on the whole record . . . the error . . . (is) harmless beyond a reasonable doubt’ . . . [T]he inquiry is whether the evidence was so dispositive [of the element to be presumed] that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption.” (Citations omitted.) Id. at 583. See Carella v. California, 491 U. S. 263 (109 SC 2419, 105 LE2d 218, 226-227) (1989) (Scalia, J., concurring) (more expansive traditional harmless error analysis of Rose v. Clark, supra, for rebuttable presumptions, not acceptable for conclusive presumptions which preclude jury’s factual determination of presumed element).

Decided July 16, 1991.

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, for appellant.

W. Fletcher Sams, District Attorney, William H. Stevens, Assistant District Attorney, for appellee.

The evidence here shows that a police officer found King at the scene where his car was resting in a ditch off the side of the road. King admitted he was the driver of the car, and told the officer he fell asleep and ran off the road. Physical evidence at the scene showed the path of the car as it ran off the road for about 200 feet before coming to rest in the ditch. The officer testified that King had the odor of alcohol about his person, was staggering, had red eyes, a flushed face, and was perspiring. The state-administered breath test, given approximately an hour later, showed King to have an alcohol concentration of 0.13 grams. King presented no evidence in his defense. The evidence overwhelmingly establishes, beyond a reasonable doubt, that King was under the influence of alcohol while driving the car to t’ie extent that it was less safe for him to drive. The erroneous instruction was harmless because, beyond a reasonable doubt, the jury found the facts necessary to support the conviction, rather than relying on the presumption.


text:
    A91A0924.
    ROBINSON v. THE STATE.
    (408 SE2d 820)
   Birdsong, Presiding Judge.

Donald Robinson appeals his judgment of conviction of armed robbery, aggravated sodomy, and kidnapping with bodily injury, and the sentence.

Appellant kidnapped the victim at gunpoint, anally sodomized her by force and against her will, and robbed her, as charged. He enumerates two errors. Held:

1. Appellant asserts the trial court erred in not dismissing the indictment after finding appellant was interrogated without knowledge or permission of his counsel.

Defendant was indicted and represented by counsel at arraignment. Subsequently, appellant was taken to a room by the police where, in the presence of the prosecutor who was so identified and who appellant was told could not talk with him in the absence of appellant’s attorney, appellant’s physical features were compared by the police to those of persons in photographs. During the course of this procedure, appellant was asked certain identification questions by the police about who was in the photographs, about his beard, his facial marks, his twin brother, and similar matters. The prosecutor stated without contradiction that appellant, upon his arrest, initially said he was Ronald Robinson (which is the name of appellant’s twin brother) and was so booked; and, the prosecutor argued he had an “ethical obligation” to be sure he had “the right man” before proceeding to trial. The prosecutor also stated in his place that appellant was told “not to say anything because I was the prosecutor.” Appellant testified as to his questioning by the police stating he was shown photographs and asked if the photographs were of him; if he saw a mole or mark on one of the persons in the pictures; how long he had worn a beard; and he was asked questions about his twin brother. Appellant admitted during his testimony that no one had asked him any questions about the facts of the case, the victim, anything happening on the night of the incident, what he was doing during that time frame, or anything about the crime or the case against him; and that any questions he was asked had to do with whether he was the person in the photographs shown him. Appellant was not asked any questions by the prosecutor. Thereafter, the prosecutor stated in his place “that I do not intend to offer any testimony that was produced, or any possible testimony that was produced as a result of somebody asking [appellant] to look at the picture and see if that was him”; and stated he was going to establish identity of appellant by other means.

Appellant asserts for the first time on appeal that prisoners in the Douglas County Jail routinely have had their telephone conversations recorded, and attempts to establish by such argument a pattern of recurring state and federal constitutional violations of the rights of prisoners. The record does not contain evidence in support of such assertions. Factual assertions in briefs that are unsupported by the record cannot be considered in the appellate process. Hudson v. State, 185 Ga. App. 508 (1) (364 SE2d 635). Briefs cannot be used in lieu of the record or transcript to add evidence to the record. See Williams v. State, 193 Ga. App. 677, 678 (388 SE2d 893).

Appellant asserts that the remedy fashioned by the trial court of excluding all evidence obtained or derived from the questioning of appellant without his attorney being present was insufficient, “and that no remedy short of dismissal can remove the taint of the State’s lawless actions to deter further such misconduct.”

Appellant has failed to cite this court to any portion of the record of trial where evidence was introduced in violation of the trial court’s exclusionary ruling. Moreover, at the motion to dismiss hearing, appellant acknowledged he would have to address whether any of the excluded evidence was being introduced subsequently by the State “as questions come up at trial.” The trial record reflects no objections were posed thereafter to the introduction of evidence by the State on the grounds it had been excluded by the trial court’s remedial order. While appellant’s brief does refer to the procedure used by the State to obtain the victim’s identification of appellant at trial, the basis of appellant’s objection to such identification evidence was the “leading nature of [the] question”; and, appellant’s subsequent motion for mistrial was grounded on the contention that because of the leading question posed, the victim now knew who was accused of the crime and her further in-court identification would not be based on any independent recollection or memory. The denial of the mistrial motion has not been enumerated as error on appeal.

In United States v. Morrison, 449 U. S. 361, 365 (101 SC 665, 66 LE2d 564), the United States Supreme Court stated: “[W]hen before trial but after the institution of adversary proceedings, the prosecution has improperly obtained incriminating information from the defendant in the absence of his counsel, the remedy characteristically imposed is not to dismiss the indictment but to suppress the evidence or to order a new trial if the evidence has been wrongfully admitted and the defendant convicted. . . . [A]bsent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate.” (Emphasis supplied.) “Although federal [and state] courts possess the authority to dismiss an indictment for governmental misconduct, dismissal is an ‘extreme sanction which should be infrequently utilized.’ . . . Dismissal is only favored in the most egregious cases.” United States v. Sims, 845 F2d 1564, 1569 (5) (11th Cir.). Our courts and the United States Supreme Court “have held that when considering the appropriate remedy for an alleged constitutional violation involving governmental misconduct, the remedy should be tailored to the injury suffered from the violation alleged and should not result in the dismissal of an indictment, or ... in the granting of a directed verdict, when the case may proceed with full recognition of the defendant’s right to a fair trial.” Wilcox v. State, 250 Ga. 745, 755-756 (301 SE2d 251); compare McGarvey v. State, 186 Ga. App. 562 (2) (368 SE2d 127). We are satisfied that the relief tailored by the trial court in this case was “appropriate in the circumstances to assure the defendant the effective assistance of counsel and a fair trial,” within the meaning of Morrison, supra at 365. This enumeration of error and appellant’s arguments in support thereof are without merit.

2. Appellant asserts the trial court erred in failing to exclude from evidence any reference to defendant having stolen a car or having been in a stolen car.

(a) First and primarily appellant asserts that it was error to introduce evidence that the black Chevrolet Beretta was stolen by appellant before the night of the kidnapping, sodomy and robbery of the victim. We disagree. Such evidence unquestionably placed appellant’s character in issue. However, it was relevant as it tended to establish appellant was the assailant, as this evidence placed him in control of the vehicle identified by the victim as being the car in which she believed she was abducted and attacked, and the same vehicle in which were found pubic and head hairs which could have originated from appellant. “Generally, evidence of other independent crimes or acts committed by the defendant is inadmissible as it tends to put the defendant’s character into evidence. . . . There are two conditions to admissibility. The first condition [which clearly was met in this case] is that there must be some evidence establishing that the independent crime was committed by the defendant. . . . The second condition of admissibility requires that there ‘be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter.’ ” (Emphasis supplied.) Chastain v. State, 260 Ga. 789, 790-791 (3) (400 SE2d 329); see Roney v. State, 192 Ga. App. 760, 762 (2) (386 SE2d 412). The fact that appellant had stolen the car, which the State seeks to establish as the vehicle used thereafter in the crime and in which incriminating physical evidence was found tending to link appellant to the crime scene, has a rational connection to the issue of appellant’s identity and criminal culpability. “[E]vidence that is relevant and material to an issue in the case is not inadmissible because it incidentally places the accused’s character in issue.” Crosby v. State, 259 Ga. 822, 823 (2) (389 SE2d 207).

“Moreover, admissibility of evidence is a matter which rests largely within the sound discretion of the trial court, and in the absence of an abuse of judicial discretion, this court will not interfere with the trial court’s ruling.” (Citations and punctuation omitted.) Roney, supra at 763.

(b) Secondarily, appellant asserts in the same single enumeration of error the trial court erred in admitting evidence that appellant “was later arrested for being in [another] stolen car.” “Our law requires that enumerations ‘shall set out separately each error relied upon’ (OCGA § 5-6-40). . . .” Murphy v. State, 195 Ga. App. 878, 880 (6) (395 SE2d 76). When an appellant argues more than one error within a single enumeration, this court in its discretion may elect to review none of the errors so enumerated in violation of OCGA § 5-6-40 (Murphy, supra) or elect to review any one or more of the several assertions of error contained within the single enumeration and treat the remaining assertions of error therein as abandoned (West v. Nodvin, 196 Ga. App. 825, 830 (4c) (397 SE2d 567)). In Division 2 (a) above, we reviewed the first and primarily asserted error within this single enumeration; we now elect to consider this secondarily asserted error as abandoned.

Decided July 15, 1991.

Ñaman L. Wood, for appellant.

David J. McDade, District Attorney, for appellee.

Assuming arguendo, this assertion of error had not been abandoned, it nevertheless was without merit. “It is well settled that all of the circumstances connected with an accused’s arrest are admissible as evidence at trial, even those that establish the commission of another criminal offense.” (Punctuation omitted.) Leonard v. State, 197 Ga. App. 221, 222 (1) (398 SE2d 250).

Judgment affirmed.

Pope and Cooper, JJ., concur.


author:
Birdsong, Presiding Judge.
      Cooper, Judge,

text:
    A91A0304.
    JONES v. THE STATE.
    (408 SE2d 823)
   Birdsong, Presiding Judge.

Octavius A. Jones was tried before a jury and convicted of possession of cocaine with the intent to distribute. He appeals the trial court’s denial of his motion for new trial raising two enumerations of error. Held:

1. Appellant contends the trial court erred in denying his motion to suppress evidence because the State failed to establish his voluntary consent to a warrantless search of a residence into which appellant had recently moved. Appellant argues that the cocaine discovered in the residence was inadmissible because the officers did not obtain a written waiver prior to the search and that the testimony offered by the officers during the suppression hearing was inconsistent.

“ ‘Where the State seeks to justify a warrantless search on grounds of consent, it “has the burden of proving that the consent was, in fact, freely and voluntarily given.” [Cit.] . . .’ [Cit.]” Hunter v. State, 190 Ga. App. 52 (1) (378 SE2d 338). “ ‘ “(O)n motion to suppress evidence, the trial judge sits as the trior of the facts, hears the evidence, and his findings . . . are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them.” [Cit.]’ [Cit.]” Mann v. State, 196 Ga. App. 730 (3) (397 SE2d 17). Inasmuch as two of the officers present before the search testified that appellant verbally consented to the search, the trial court did not err in denying appellant’s motion to suppress. See Bobbitt v. State, 195 Ga. App. 566, 567 (394 SE2d 385).

2. Appellant also enumerates as error the trial court’s refusal to charge the jury on equal access, as requested.

(a) On appeal this court is bound to construe the evidence in favor of the prevailing party with every inference and presumption being in favor of upholding the jury’s verdict. Mills v. State, 137 Ga. App. 305 (1) (223 SE2d 498); Wren v. State, 57 Ga. App. 641, 644 (196 SE 146).

(b) Appellant contends that the evidence demonstrated that he had only recently moved into the residence, as evidenced by the dearth of furnishings in the duplex, and anyone having access prior to his arrival had an opportunity to place cocaine in the residence; that while it was under surveillance, the police observed eight to ten people come to the house; and that the kitchen had been the scene of drug use as indicated by the discovery of cans converted into pipes, a match box and burnt matches. The cocaine was discovered in a brown wrapper or bag in plain view in the corner of the living room. The record also reveals that although someone other than appellant owned the house, appellant recently had moved therein and no evidence was found which indicated anyone other than appellant was living in the house at the time of the drug seizure.

The trial court stated that there was no evidence of access to the premises by anyone other than appellant to support such a charge. Although there is a scant amount of evidence that some persons may have entered the premises to purchase drugs during the time when police surveillance was being conducted, there is no evidence these persons had equal access to that area where the closed paper bag containing the drugs was seized. Merely being somewhere within the premises for a relatively short but unspecified time before drugs subsequently are found therein does not reasonably raise the defense of equal access. No instruction need be given regarding a defense not reasonably raised by the evidence. Britt v. State, 184 Ga. App. 445, 446 (1) (361 SE2d 710). We will not reverse the correct ruling of a trial court regardless of the reason thereto attributed. Ely v. State, 192 Ga. App. 203 (4) (384 SE2d 268).

(c) Assuming arguendo some form of equal access instruction was required, error has not been established. Review of the trial record reveals the trial court elected not to charge the jury that a presumption or inference of possession arises from proof of ownership or control of the premises that the owner or person in control thereof is in control and possession of the contraband found therein. Compare Henderson v. State, 191 Ga. App. 275, 276 (1a) (381 SE2d 423) and Gee v. State, 130 Ga. App. 634 (204 SE2d 329). The primary purpose of giving a tailored equal access instruction is the same in premises cases as in automobile cases; an equal access instruction is designed to inform the jury that evidence showing a person or persons other than the owner or person in control of the premises had equal access to contraband found in the premises may or will, depending upon the strength of the evidence, overcome the presumption of the owner or party controlling the premises. Lance v. State, 191 Ga. App. 701 (382 SE2d 726). When the presumption of possession is not charged, an equal access charge merely serves to highlight those possession elements of the drug offense which the State must establish beyond a reasonable doubt in order to warrant the accused’s conviction. In this case, the record shows the trial court did not instruct either regarding a presumption or a permissible inference of possession; but instructions were given inter alia as to the presumption of innocence, the State’s burden of proof, that there is no burden of proof whatsoever on defendant, that the burden of proof never shifts to defendant to prove his innocence, the duty of the jury to acquit if the State fails to prove defendant’s guilt beyond a reasonable doubt, the pertinent statutory prohibition as to possession of controlled substance (cocaine) with intent to distribute, actual and constructive possession, and that “the jury will be authorized to convict as to the element of possession only if [it] should find beyond a reasonable doubt that the defendant knowingly had either actual or constructive possession.” In the absence of a charge to the jury as to the presumption of possession or its equivalent, the above charges substantially and adequately covered the principles contained in an equal access instruction. In such circumstances, the charge given encompassed every remaining pertinent aspect of appellant’s equal access defense, and the trial court did not err in failing to give a tailored equal access instruction to the jury. See Brooks v. State, 258 Ga. 20 (4) (365 SE2d 97); Harrison v. State, 257 Ga. 528 (4) (361 SE2d 149).

Likewise it was not error to refuse to give the particular equal access instruction requested by appellant. Harrison, supra. Moreover, examination of appellant’s instruction request reveals that it is partially patterned after the charge language in Gee v. State, supra at 636 (2). It is clear from a reading of Gee that this type of instruction is confusing and misleading unless carefully tailored to the evidence and that a portion of the charge standing alone is incorrect. “If any portion of the request is inapt, incorrect, or not authorized by the evidence, denial of the request is proper.” Llop v. McDaniel, Chorey &c., 171 Ga. App. 400, 403 (4) (320 SE2d 244). And the trial court does not err when it refuses to give a confusing or misleading instruction. See Lubiano v. State, 192 Ga. App. 272, 275 (2a) (384 SE2d 410).

Judgment affirmed.

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

Cooper, Judge,

dissenting.

I concur with Division 1 of the majority opinion, that the trial court did not err in denying appellant’s motion to suppress. However, I respectfully dissent as to the majority’s holding in Division 2, that the trial court correctly refused the jury charge on “equal access.”

The majority concluded that there was a scant amount of evidence at trial to support a charge on “equal access.” In my view, that imposes too narrow a view of the evidence in the context of contraband discovered on premises and ignores an important distinction between cases involving contraband found on premises and contraband discovered in automobiles. In the automobile context, it is much easier to connect an individual with contraband found therein due to the finite nature of an automobile, and it is somewhat reasonable to presume that one exercising control over a vehicle was also exercising control over contraband found therein. However, the same may not be true in the context of contraband discovered in a house, especially when it can be demonstrated that others had access to the premises. In addition to the evidence cited by the majority, the evidence adduced at trial demonstrated that one of the officers was “able to see people coming in and out of the apartment,” contrary to the trial court’s finding that there was no evidence that any other persons had access to the premises.

“ ‘ “(M)erely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” ’ [Cit.]” Blitch v. State, 188 Ga. App. 487, 488 (373 SE2d 227) (1988). “A rebuttable presumption arises when one leases [a residence], and contraband is found therein, that the lessee is in possession of the entire premises and all the property found on the premises. This presumption may be overcome by evidence that others have access to the premises. Whether this presumption is rebutted is solely a jury question. [Cit.]” Taylor v. State, 195 Ga. App. 651, 652 (394 SE2d 604) (1990). “ ‘Slight evidence will justify a charge even where the preponderance of the evidence tends to show the nonexistence of such a fact. . . .’ [Cit.]” Hicks v. State, 195 Ga. App. 887 (2) (395 SE2d 341) (1990). It is worthy of note that in Lance v. State, 191 Ga. App. 701 (382 SE2d 726) (1989), an automobile case which the majority relied upon, this court determined that there was insufficient evidence to give rise to the presumption of ownership or exclusive control of the vehicle; therefore, the equal access defense was not triggered, but the court did find a charge on joint possession proper. Id. at 703. In the instant case, the evidence undisputably established that although appellant did not own the premises, he was exercising control over them, therefore raising the presumption and triggering the equal access defense, despite the trial court’s decision not to charge accordingly. Moreover, the police observed individuals entering and leaving the residence through the door into the living room, where the drugs were discovered. In my view, the evidence required that the charge be given.

Decided July 16, 1991.

Mark D. Brimberry, for appellant.

Britt R. Priddy, District Attorney, Henry 0. Jones III, Assistant District Attorney, for appellee.

As to the majority’s contention that the particular charge requested by appellant was confusing or misleading, to the contrary, appellant’s charge was patterned after the charge given in Gee v. State, 130 Ga. App. 634 (2) (204 SE2d 329) (1974), which was upheld by this court as a proper equal access instruction.

For the reasons discussed above, I believe the trial court committed reversible error in refusing to give the requested charge.


author: Per curiam. Andrews, Judge,

text:
    A91A0323, A91A0324.
    WILSON v. NORFOLK SOUTHERN CORPORATION (two cases).
    (409 SE2d 84)
   Per curiam.

Wilson appeals the granting of Norfolk Southern Corporation’s (“Norfolk”) motions for summary judgment on its third-party complaints seeking contribution from him in suits filed by his daughter and granddaughter arising from the 1985 collision of Wilson’s truck with a Southern Railway train.

Wilson was driving his pickup truck with his daughter D. W. Corzo and his six-year-old granddaughter D. A. Corzo as passengers. They were struck by the train at a crossing and both mother and child suffered severe injuries. Wilson, his daughter and granddaughter filed separate suits against Norfolk, contending the accident was caused by inadequate warnings, failure to protect the crossing, negligent operation of the train, and failure to signal the approach of the train. Norfolk defended Wilson’s suit claiming the wreck was caused by his own negligence, including a frost obscured windshield, failure to obey signals and failure to stop in a safe distance. Norfolk filed third-party complaints against him in the mother’s and daughter’s suits, denying its negligence, but claiming “if it should be determined that the damage to [mother and child] resulted from any negligence of Norfolk . . . then the negligence of . . . Wilson was joint and concurrent in causing the injury . . . and . . . Wilson is or may be liable to [Norfolk] for all or part of the claim. . . .” Norfolk also contended Wilson’s negligence was a proximate cause of the wreck.

In May 1988, Norfolk entered into a consent judgment and settlement on the child’s behalf, paying $10,000, which the consent judgment held was “just and fair” and in the best interest of the child. The suit of the mother was dismissed with prejudice and she was also paid $10,000 as part of the settlement. Wilson’s suit was tried by jury and judgment entered for Norfolk in April 1989.

Norfolk then sought summary judgment on its contribution claims. Both were granted.

The enumerations of error in both appeals are identically worded and numbered and will be addressed together.

Norfolk’s motion for summary judgment included the statement of material facts and theories of recovery mandated by USCR 6.5 and an affidavit in support. In response, Wilson filed a brief in opposition which contained in a section headed “Statement Of Material Facts As To Which There Is A Genuine Issue To Be Tried” a recitation of the procedural posture of the cases which did not specifically dispute any material facts set out in Norfolk’s motion, but presented numerous legal arguments in opposition which are repeated here, including that the amount paid in settlement was arbitrary. Held:

1. OCGA § 51-12-32 (a) provides that “[e]xcept as provided in Code Section 51-12-33, . . . contribution among several trespassers may be enforced just as if an action had been brought against them jointly. Without the necessity of being charged by action or judgment, the right of a joint trespasser to contribution from another or others shall continue, unabated and shall not be lost or prejudiced by compromise and settlement of a claim or claims for injury to person . . . and release therefrom.” See Randall v. Norton, 192 Ga. App. 734, 737 (3) (386 SE2d 518) (1989).

The summary judgment motion was premised on the theory that Wilson was estopped to deny his negligence was equal to or greater than Norfolk’s because of Norfolk’s verdict in his suit. The Statement of Material Facts submitted by Norfolk set out the wreck, the resolution of the mother’s and child’s claims by dismissal and settlement respectively, payment by Norfolk, Wilson’s adverse verdict, and that the settlements were reasonable and made in good faith. This was supported by the affidavit of Senior Claim Manager Reid, who investigated the claims and arranged for payment to the mother and child.

Wilson, in opposition, contended the jury in his trial could have found Norfolk and him equally negligent based on comparative negligence and that the $5,000 sought was “arbitrary.” Pro rata contribution is appropriate between joint tortfeasors, Eidson v. Maddox, 195 Ga. 641, 645 (24 SE2d 895) (1943); Powell v. Barker, 96 Ga. App. 592, 595 (1) (101 SE2d 113) (1957); see Union Camp Corp. v. Helmy, 258 Ga. 263, 265 (367 SE2d 796) (1988), and the contention that a claim for a pro rata share is not appropriate is erroneous.

2. Enumeration 1 alleges that the consent judgment for the child, the dismissal with prejudice of the mother’s suit, and judgment against Wilson in his suit are not dispositive of the contribution issue. The facts of the consent judgment, dismissal and adverse judgment were not disputed by Wilson and were properly before the court on summary judgment. Norfolk did not contend that these judgments were dispositive, only that they were facts to be considered on summary judgment. There was no error.

Part of the argument made here was not presented below nor is it encompassed within the enumeration and will not be considered. Liner v. North, 194 Ga. App. 175, 179 (2) (390 SE2d 263) (1990); Sentry Ins. v. Majeed, 194 Ga. App. 276, 277 (1) (390 SE2d 269) (1990).

3. The second enumeration claims Norfolk improperly took a position in the cases of the mother and child that was contrary to that taken in Wilson’s, relying on, e.g., Dunn v. Dunn, 221 Ga. 368, 372 (3) (144 SE2d 758) (1965). The argument is that settlement of the mother’s and child’s suits was an admission of Norfolk’s negligence, which was contrary to its denial of any negligence in Wilson’s case. The settlements in those cases occurred a year before Wilson’s trial. That trial would have been the appropriate forum in which to raise this issue. There being no indication it was so raised, that issue is not subject to review in these appeals. Hollis v. State, 191 Ga. App. 525, 528 (382 SE2d 145) (1989).

This contention also overlooks the alternative pleading of Norfolk that even if it were found negligent, the negligence of Wilson equalled or exceeded its own. Alternative pleading is appropriate pursuant to OCGA § 9-11-8 (e) (2) in such circumstances. Housing Auth. of Savannah v. Greene, 259 Ga. 435, 438 (5) (383 SE2d 867) (1989); ARA Transp. v. Barnes, 183 Ga. App. 424, 426 (1) (359 SE2d 157) (1987).

There was no error.

4. Wilson contends in the third enumeration that estoppel was not shown because Norfolk did not show an identity of issues in Wilson’s suit against it and its suit for contribution from him.

While res judicata requires identical parties and causes of action, “collateral estoppel does not require identity of the claim but only precludes readjudication of an issue already adjudicated between the parties or their privies in a prior action. [Cit.] ” Norris v. Atlanta &c. R. Co., 254 Ga. 684-685 (333 SE2d 835) (1985).

In Norfolk’s motion, it requested the court to take notice of the proceedings in Wilson’s case against it. The trial was conducted before the same judge and Wilson acknowledges his contributory/ comparative negligence was at issue. Judicial notice of other civil cases before the same court is appropriate. Petkas v. Grizzard, 252 Ga. 104, 108 (312 SE2d 107) (1984).

This argument fails.

5. Wilson enumerates error in the grant of summary judgment because of Norfolk’s failure to prove its liability to mother and child and the reasonableness of the settlement which it paid (Enumerations 4 & 5). In both cases, Wilson contends the affidavit of Norfolk’s district claim agent Reid was “defective” and could not support the summary judgment grants (Enumeration 6).

(a) We first consider the affidavit. Wilson, relying on Ginn v. Morgan, 225 Ga. 192, 193 (167 SE2d 393) (1969) for the proposition that summary judgment for a [third party] plaintiff can never issue based solely upon opinion evidence, argues that the affidavit will not support summary judgment and is defective because of Reid’s expression of opinion that the payment of the $10,000 settlements to mother and child was “reasonable.” Ginn was modified by Savannah Valley &c. Assn. v. Cheek, 248 Ga. 745, 746 (285 SE2d 689) (1982) only to the extent that in cases where a plaintiff must produce an expert’s opinion in order to prevail at trial, when the defendant produces an expert’s opinion in defendant’s favor in moving for summary judgment and plaintiff fails to produce an expert’s affidavit in opposition to the motion, summary judgment may be granted to the defendant/ movant. Savannah Valley &c. Assn., supra at 746; Howard v. Walker, 242 Ga. 406, 407 (249 SE2d 45) (1978).

“Ginn v. Morgan, supra, and its progeny continue to be correct insofar as nonexpert opinion cases are concerned and insofar as motions for summary judgment in favor of plaintiffs are concerned.” Howard, supra at 408. Harrison v. Tuggle, 225 Ga. 211, 212 (2) (167 SE2d 395) (1969); Nichols v. Frey, 185 Ga. App. 829, 831 (366 SE2d 212) (1988); American Cyanamid Co. v. Allrid, 176 Ga. App. 831, 832 (338 SE2d 14) (1985) (physical precedent).

While the opinion of the claim agent is admissible at trial as an expert or nonexpert opinion on the issue of the reasonableness of the settlement, see generally Green, Georgia Law of Evidence 219, § 112 and cases cited in fn. 6, the issue of reasonableness is for the jury which may disagree with his opinion. Union Camp v. Louisville &c. R. Co., 130 Ga. App. 113, 116 (1) (202 SE2d 508) (1973); cf. Robert & Co. v. Pinkerton & Laws, 120 Ga. App. 29, 33 (1) (169 SE2d 360) (1969).

(1) In the mother’s case (A91A0324), judgment must be reversed on this ground.

(2) In the child’s case (A91A0323) judgment must also be reversed on the same ground. The view expressed in the dissent, that the child’s case (A91A0323) need not be reversed since consideration of the affidavit is unnecessary due to a statement in a consent judgment that the settlement was “just and fair,” is not correct. Appellant Wilson was not a party to the consent judgment entered in the child’s case (A91A0323). See generally OCGA § 9-12-23. Only plaintiff, Donna Angelica Corzo, by next friend, Donna Wilson Corzo, and defendant Norfolk, waived their right to trial by jury and consented to the entry of judgment. As there was no similar waiver and consent by appellant Wilson, the consent judgment and the determination therein that the settlement was “just and fair” are not binding upon appellant Wilson. The issue of reasonableness awaits proof in both cases. Compare Venture Design v. Original &c. Artworks, 197 Ga. App. 432, 435 (4) (398 SE2d 781).

We need not consider separately Enumeration 7, also dealing with reasonableness.

(b) Enumeration 5 contends that Norfolk failed to demonstrate it was liable to the daughter and granddaughter for purposes of contribution. There was no adjudication of liability, only an agreed settlement in the mother’s suit and a consent judgment in the child’s suit. That is not, however, all that was considered by the trial court in its ruling on Norfolk’s summary judgment motion on the question of the liability of Wilson and Norfolk. The court below considered the entire proceedings in the litigation between Norfolk and Wilson. Since Wilson has not chosen to make those proceedings part of the record on appeal, he has failed to show that there was no liability on Norfolk’s part proven by the trial. When a party fails to show error affirmatively by the record, the trial court’s action is assumed to be correct. Sycamore Pellet Systems v. Southeastern Steam, 196 Ga. App. 717, 718 (397 SE2d 6) (1990).

6. Norfolk’s motion for imposition of a penalty is denied.

Judgment reversed in Case No. A91A0324.

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

Judgment reversed in Case No. A91A0323.

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

Andrews, Judge,

concurring in part and dissenting in part.

While I concur fully in the reversal of Case No. A91A0324, and Divisions 1 through 4, 5 (a) (1), 5 (b), and 6 as they also relate to Case No. A91A0323, I must respectfully dissent as to Division 5 (a) (2) requiring the reversal of Case No. A91A0323.

The point on which the majority opinion relies was not enumerated as error or argued by Wilson, leaving this court without jurisdiction to consider that argument. Dennis v. Malt, 196 Ga. App. 263, 265 (2) (395 SE2d 894) (1990). Further, the judgment entered against Norfolk in favor of the child states that the court reviewed the settlement and independently concluded that the damages were “just and fair”and in the child’s best interest. This element supplies evidence of the reasonableness of the settlement for purposes of summary judgment, and defeats the argument made, which was that it was arbitrary.

Decided July 16, 1991.

Tisinger, Tisinger, Vance & Greer, Thomas E. Greer, Michele R. Smith, for appellant.

Shaw, Maddox, Graham, Monk & Harris, James D. Maddox, for appellee.

I am authorized to state that Chief Judge Sognier, Presiding Judge Banke and Presiding Judge Birdsong join in this opinion.

       That section is not applicable to these cases, applying only to causes of action arising on or after July 1, 1987, after the 1985 wreck here.

       “Joint trespasser” is synonymous with “joint tortfeasor.” Hyde v. Klar, 168 Ga. App. 64, 65 (308 SE2d 190) (1983).