text:
    74259.
    PRITCHARD SERVICES et al. v. LETT.
    (358 SE2d 842)
   Pope, Judge.

On May 21, 1984 claimant appellee Ruby Lett sustained back injuries while on the job and sought treatment from a doctor at her employer’s approved medical clinic. Although she was treated through June 1, 1984, she was released as able to return to normal work as of the date of injury. The claimant requested to see another doctor for a second opinion because she was in too much pain to return to work, and her employer made an appointment for her to be examined by the second approved physician on the posted list. However, claimant cancelled the appointment and instead sought treatment from an unauthorized doctor of her own choice. Claimant did not return to work and received physical therapy treatments daily from the doctor, including hospitalization for further treatment on August 13, 1984. On August 27, 1984 she was again examined by another of the employer’s doctors and declared capable of resuming normal work duties. When the claimant requested total disability benefits while continuing treatment by her doctor, the appellants (claimant’s employer and its insurer) controverted the claim by filing a WC-1 form in compliance with OCGA § 34-9-221 (d), stating as grounds therefor that there was “[n]o disability beyond waiting period.”

A hearing was held on October 1, 1984 before the administrative law judge (ALJ), who ruled that claimant had sustained her burden of proving that she was injured on the job and experienced total disability to work from May 22 through August 27, 1984. Appellants were ordered to pay disability compensation for this period and to reimburse claimant for all medical expenses because they had controverted her claim. Upon appeal to the State Board of Workers’ Compensation, the award of the ALJ was affirmed on February 8, 1985. The Board further ruled that because claimant’s doctor had continued her treatment of bed rest and therapy on the day following her examination and release to work by the employer’s doctor, and because she was still disabled to work at that time, total disability compensation would be continued until altered or terminated by law. This award was appealed to the superior court on the grounds that the Board acted without and in excess of its powers; that the facts found by the Board did not support the award; and that the evidence was insufficient to support the award. The court affirmed the disability compensation, but reversed and remanded for determination by the Board as to what portion, if any, of the claimant’s doctor’s medical expenses should be the responsibility of the appellants.'

On January 21, 1986 the Board affirmed its findings of February 8, 1985, except for holding that the claimant’s medical expenses prior to the controvert of the claim were her responsibility because there was a posted panel of physicians at her workplace. This award was again appealed to the superior court, which affirmed, holding that since it was clear that the claim was controverted after the claimant had sought medical treatment on her own, pursuant to Rule 201 (b) of the State Board of Workers’ Compensation the claimant was free to seek any medical care she desired after the controvert, and such expenses were appellants’ responsibility under Boaz v. K-Mart Corp., 254 Ga. 707 (334 SE2d 167) (1985). K-Mart Corp. v. Anderson, 166 Ga. App. 421 (304 SE2d 526) (1983), upon which appellants relied, was distinguished on the basis that “there was no controvert of the claim similar to the controvert in the case sub judice.” We granted appellants’ application for discretionary appeal in an attempt to clarify the diverse resolutions in recent cases involving medical expense liability.

Appellants contend on appeal that requiring them to pay the claimant’s post-controvert unauthorized medical expenses is contrary to OCGA § 34-9-201 (c) and this court’s ruling in Scandrett v. Talmadge Farms, 174 Ga. App. 547 (330 SE2d 772) (1985). We disagree. The ruling in Scandrett was based upon evidence that the employee had been completely cured when she sought treatment from her doctor of choice, which thus did not authorize a finding of continuing total disability. To the contrary in the instant case, the evidence showed that the claimant’s disability and the treatment necessitated thereby were still continuing.

K-Mart Corp. v. Anderson, supra, is also distinguishable in that the employee was treated by all three of the authorized panel of physicians and in addition thereto sought treatment from her personal doctor. This court determined on appeal that this was “precisely one type of action for which [OCGA § 34-9-201 (c)] absolves the employer of liability for cost of treatment. [Claimant] could and should have petitioned the Board for a change of physician. OCGA § 34-9-201 (d). . . .No evidence of an emergency or similarly justifiable reason having been presented, the superior court should have reversed the Board’s award for the expenses incurred for the unauthorized medical services.” Id. at 423.

The employer is likewise not responsible for medical expenses where the employee makes no effort to select from a properly posted panel of physicians, but instead chooses his own doctor and is treated before the employer files a notice to controvert. ITT-Continental Baking Co. v. Powell, 182 Ga. App. 533 (2) (356 SE2d 267) (1987); State of Ga. v. Tungler, 181 Ga. App. 21 (351 SE2d 248) (1986); Ledbetter v. Pine Knoll Nursing Home, 180 Ga. App. 654 (2) (350 SE2d 299) (1986).

Thus, we agree with the superior court that the disposition of this case is controlled by Boaz v. K-Mart Corp., supra, and Georgia Power Co. v. Brasill, 171 Ga. App. 569 (320 SE2d 573) (1984). In Brasill, the court through Presiding Judge Deen (who was also the author of K-Mart Corp. v. Anderson, supra) reversed an award not allowing payment of past medical bills because the claimant did not get permission to see a non-posted doctor, stating: “When the employer cut him off from receiving medical benefits, claimant was entitled to see any doctor if he could prove he was still injured at the time as a result of the accident. The latter was proven by him. [OCGA § 34-9-200 (d), authorizing the Board to order a change of physician after giving notice and allowing an objection to be filed,] presupposes present treatment is being allowed and is appropriate only if existing medical assistance still continues and one has not been cut off by the employer, which is not the case here.” Brasill, supra at 570.

Here also, as in Boaz v. K-Mart Corp., supra, which followed Brasill, supra, the ALJ found that the employee had been dismissed from treatment as cured even though still in need of treatment, and thus was justified in going to a physician of her choice. In affirming the award in Boaz the Supreme Court stated: “The law of workers’ compensation generally requires that the employee will be liable for non-authorized treatment if the expenses are incurred without giving the employer an opportunity to furnish treatment; if the employer does not adequately meet the duty of providing treatment the employee may make other arrangements and once treatment by a physician is undertaken an employer may not change positions and cut off the right to continue such treatment. [Cit.]” Id. at 710. As this court recognized in State of Ga. v. Tungler, supra at 23: “Implicitly the Supreme Court held that by an employer-approved physician releasing Boaz back into the work force as ‘cured,’ the employer had not adequately met its duty of providing treatment to the employee since the employee was able to prove that his subsequent medical problems were related to his work-related injury. . . . Under Boaz, if an employee can show his symptoms emanate from a work-related injury, an employer cannot both controvert the employee’s claim for benefits and demand that the employee accept treatment only from a panel physician who asserts the employee is cured of his work-related injury.” (Indention omitted.)

Decided May 27, 1987

Rehearing denied June 16, 1987

Mark J. Goodman, for appellants.

We also note that the appellants’ notice to controvert was filed in response to the claimant’s request for income benefits and based on the premise that no disability existed. As pointed out by this court in ITT-Continental Baking Co. v. Powell, supra, “[a] distinction must be recognized between income benefits and medical expenses. Income benefits are to be paid automatically once the employer is notified of the injury, unless the employer in return informs the employee by means of a notice to controvert that in its view the injury is not com-pensable . . . [under] OCGA § 34-9-221. Employer-liable medical expenses, on the other hand, initiate with the services of a physician selected from the approved list (except when justified otherwise) as required by OCGA § 34-9-201 (c). When the expenses arise from treatment by one not on the approved list, nothing would trigger a decision to pay these expenses or controvert liability for them until the employer is informed of their incurrence.” (Indention omitted.) Id. at 535.

It is apparent from the record in this case that appellants intended to include both income benefits and medical expenses in the initial notice to controvert, although all issues were settled prior to this appeal except the medical benefits. The evidence was ample to support the conclusion reached by all the factfinding tribunals that the claimant continued to suffer from her disabling work-related injuries subsequent to her release by the appellants’ doctors. Thus appellants failed to adequately meet their duty of providing treatment and must be held responsible for the medical expenses incurred by the claimant after the controvert was filed. Boaz v. K-Mart Corp., supra; Georgia Power Co. v. Brasill, supra.

Judgment affirmed.

Birdsong, C. J., and Been, P. J., concur.

Irwin M. Levine, for appellee.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    74442.
    BYRD v. BYRD.
    (359 SE2d 2)
    Decided June 2, 1987
    Rehearing denied June 16, 1987

      Thomas L. Washburn III, for appellant.

      Joseph M. Todd, for appellee.
   Banke, Presiding Judge.

Henry L. Byrd brought this direct appeal from an order finding him in contempt of a consent order modifying his alimony obligations to the appellee, his former wife, as well as from a subsequent order denying his motion to set aside the consent order. The appellee has moved to dismiss the appeal based on the appellant’s failure to follow the application requirements of OCGA § 5-6-35. Held:

Pursuant to OCGA § 5-6-35 (a) (2), “[a]ppeals from judgments or orders in divorce, alimony . . . and other domestic relations cases including, but not limited to, . . . holding or declining to hold persons in contempt of such . . . orders” must be taken by application. See Russo v. Manning, 252 Ga. 155 (312 SE2d 319) (1984); Schwartz v. Schwartz, 256 Ga. 102 (344 SE2d 423) (1986). Likewise, appeals from denials of motions to set aside judgments must be made by application, pursuant to OCGA § 5-6-35 (a) (8). See Roach v. Roach, 182 Ga. App. 122 (354 SE2d 877) (1987). Accordingly, the motion to dismiss the appeal is granted.

Appeal dismissed.

Carley and Benham, JJ., concur.


author: Benham, Judge.

text:
    73686.
    RICE v. GEORGIA RAILROAD BANK & TRUST COMPANY.
    (358 SE2d 882)
   Benham, Judge.

In February 1984, in conjunction with the execution of a promissory note by the Harrells in favor of appellee bank, appellant executed a guaranty of payment. The Harrells executed another note in favor of the bank in July 1985, and in April 1986, the bank filed suit against appellant on his guaranty, seeking payment of the indebtedness incurred by the Harrells in July 1985. This appeal followed the trial court’s grant of summary judgment in favor of the bank.

1. Citing OCGA § 10-7-22, appellant maintains his obligation was discharged because the bank committed an act that increased appellant’s risk. The “act” with which appellant finds fault is an increase in the interest rate charged the Harrells: the February 1984 note had a 13 percent rate while the July 1985 note was set at 14 percent. Since any change in the terms of a contract is a novation that will discharge a surety who has not consented to the change (OCGA § 10-7-21), we must focus our attention on the contents of the guaranty agreement to determine if appellant consented in advance to the change in terms. See C&S Nat. Bank v. Scheider, 139 Ga. App. 475, 476 (228 SE2d 611) (1976).

Through his guaranty, appellant “unconditionally guarantee [d] . . . the due and punctual payment of any indebtedness due the Bank by the [Harrells] according to the terms of the instruments evidencing such indebtedness.” (Emphasis supplied.) The guaranty agreement defined “indebtedness” as including “all obligations of the [Harrells] to the Bank of every kind and character now existing or which may hereafter come into existence, and any renewals or extensions thereof. . . .” A typed addendum to appellant’s guaranty limited it to the February 1984 loan and any renewal thereof. By signing the guaranty, appellant agreed to pay the February 1984 obligation or any renewal thereof owed the bank by the Harrells according to the terms of the instrument evidencing the indebtedness. It is undisputed that the July 1985 obligation is a renewal of the February 1984 note. Thus, the guaranty agreement covered it as well as the February 1984 note. Since appellant unconditionally guaranteed payment of any renewal of the February 1984 obligation of the Harrells to the bank according to the terms of that renewal, and it is undisputed that the note sued upon was a renewal of the February 1984 obligation the Harrells owed the bank, appellant was properly held accountable.

This court’s decision in Bank of Terrell v. Webb, 177 Ga. App. 715 (341 SE2d 258) (1986), cited by appellant, is distinguishable. There, in a seemingly unique set of circumstances, the co-maker of a note proved he had signed the note as a surety and then asserted he had not consented to a change in a term of the note, the payment of which he had guaranteed. Since there was no separate guaranty agreement (Webb having signed as co-maker), the bank had to look to the language of the note itself to find language reflecting that the surety had consented in advance to a change in the terms of the contract. Not surprisingly, neither the trial court nor this court was able to accept the contractual language proffered by the bank as giving consent to future changes in contractual terms. In contrast, the guaranty agreement in the case at bar contains an explicit agreement that the signator will pay any obligation that is a renewal of the February 1984 note according to the terms of the renewal.

Decided June 16, 1987.

Larry I. Smith, for appellant.

O. Palmour Hollis, Charles C. Stebbins III, for appellee.

2. Despite the fact that appellant unconditionally guaranteed payment of the note on which the Harrells defaulted, total summary judgment in favor of the bank was not warranted by the facts of this case. Appellant maintains that, during the period in which his guaranty was in effect, he came into possession of $7,000 belonging to the Harrells. When he called the bank to inquire about the status of the note he had guaranteed, he was told by a bank employee that the note had been “taken care of.” Relying on this information, appellant gave the $7,000 to the Harrells, who subsequently defaulted on their note to the bank. The bank denies that appellant was so informed by one of its authorized employees, but concedes that the facts asserted by appellant may be sufficient to partially discharge appellant. We agree.

“ ‘A promise to look solely to the . . . debtor, or a promise to proceed forthwith against him, is, when standing alone, a nudum pac-tum that can have no effect on the obligation of the surety. And this is equally true of an allegation that the debt has been paid and that the surety will have no further trouble. When, however, the surety is induced by such an assurance to surrender the securities which he has received from the principal, or to forego any means of indemnity or protection, an estoppel will arise to the extent of the resulting loss.’ ” Johnson v. Longley, 142 Ga. 814 (1) (83 SE 952) (1914). Since there exists a genuine issue of material fact concerning the allegation that appellant was injured in the amount of $7,000 by a statement purportedly made by an authorized bank employee, it was error to grant summary judgment in the bank’s favor.

Judgment reversed.

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


author: Sognier, Judge. Beasley, Judge,

text:
    74066.
    LISTER v. THE STATE.
    (359 SE2d 8)
   Sognier, Judge.

Appellant was convicted of armed robbery and he appeals. In his sole enumeration of error appellant contends he was denied his right to file a timely appeal by being deprived of a transcript for a period of nine months.

Appellant was convicted on December 16, 1985. On February 7, 1986, appellant filed a Motion for Out-of-Time Appeal, alleging that he had sought to appeal by directing his trial counsel to file a Notice of Appeal within 30 days, but his trial counsel did not do so. Appellant’s trial counsel filed an affidavit stating that appellant did not tell counsel to appeal. In an order filed March 25, 1986, the trial court found that appellant claimed he sought an appeal through counsel, but appointed trial counsel was not instructed to appeal. Nevertheless, the trial court found that justice would best be served by granting the motion in view of the factual conflict between appellant and his trial counsel. Appellant’s current counsel was then appointed to represent appellant and a Notice of Appeal was filed on April 18, 1986. Despite repeated efforts by appellant’s counsel to obtain a trial transcript, the transcript was not forwarded to this court until November 26, 1986. Appellant contends that because of this seven-month delay, he was denied his right to a timely appeal of his case. We do not agree.

Appellant is an indigent and the State provided the transcript in this case. Although it is the duty of the State to request the reporter to transcribe the reported testimony in the event of a felony conviction, the State’s duty to make such a request has no time limit. State v. Hart, 246 Ga. 212, 213 (271 SE2d 133) (1980); Montgomery v. Tremblay, 249 Ga. 483, 484 (292 SE2d 64) (1982). Hence, there was no error by the State in failing to provide a transcript at an earlier date. Further, the burden is on the party claiming error not only to show error, but error which injured him, and unless the error results in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right, an appellate court will not reverse. Anderson v. State, 165 Ga. App. 885, 887 (3) (303 SE2d 57) (1983). Appellant has alleged no harm resulting from the delay, other than his bare assertion that he was denied his right to timely file an appeal. However, he did, in fact, file a timely appeal in the instant case pursuant to the trial court’s grant of his motion to file an out-of-time appeal. While we do not condone the delay in obtaining the transcript, we have carefully reviewed the entire transcript and find no unenumerated error. Nor do we find anything to support a claim of harm resulting from the delay in filing the transcript in this case. Since none of appellant’s constitutional or statutory rights were violated, no reversible error resulted from the State’s delay in providing a transcript at an earlier date.

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in affirmance but for a different reason.

Appellant appeals from the order granting an out-of-time appeal and from the judgment of conviction, stating in the notice that “all issues raised at trial shall be subject to review by this Honorable Court.” Since the order granting the appeal was fully in his favor, there is no basis to complain of it. And since he enumerates no errors relating to the judgment of conviction or the trial which led to it, there is nothing to review.

Decided June 16, 1987.

Kenneth H. Cail, for appellant.

Spencer Lawton, Jr., District Attorney, Virginia A. Erskine, Assistant District Attorney, for appellee.

The only error claimed is that he was prohibited from filing a timely appeal because he was deprived of the transcript for nine months. But as noted, he was not deprived of an appeal, even though he could have filed a timely notice of appeal without a trial transcript. Whether he was prejudiced by the late filing of the transcript is pending below in an extraordinary motion for new trial. Therefore, we have no basis upon which to address the issue.


text:
    74116.
    OHOOPEE PRODUCTION CREDIT ASSOCIATION v. ASPINWALL.
    (358 SE2d 884)
   Benham, Judge.

Appellee Aspinwall executed a promissory note in favor of appellant in order to purchase a tobacco harvester from appellant, which had come into possession of the harvester after the original owner, who had financed its purchase through appellant, had defaulted. When appellee made no further payment on the note, appellant declared the obligation in default and filed suit to recover the balance due. Appellee filed an answer in which he admitted the execution and delivery of the note, and a counterclaim. A jury verdict resulted in the entry of a judgment for $6,000 in favor of appellee on his counterclaim. On appeal, appellant contends the trial court erred in denying appellant’s motions for directed verdict on its claim as well as appel-lee’s counterclaim, and in the charge on the implied warranties of merchantability.

1. Appellant argues it was entitled to a directed verdict in its suit on the note because it had established a prima facie case of appellee’s liability on the note: appellee had admitted execution of the note and had failed to raise any viable defenses to the note. See Nat. Bank of Ga. v. Keriaze, 163 Ga. App. 652 (294 SE2d 688) (1982). Appellee maintains that he raised the affirmative defense of failure of consideration in his counterclaim.

After filing an answer in which he admitted execution and delivery of the note in question but denied liability thereon, appellee filed a counterclaim which stated: “The Defendant shows that the note given the Plaintiff and sued on in the Petition was for a tobacco harvester which Plaintiff held out to be a good and efficient machine to be used in the harvesting of tobacco. When in fact, this machine was completely worthless, was not suited for the use intended, that is the harvesting of tobacco in that the machine when used for this purpose destroyed about as much tobacco as it picked.” The counterclaim went on to describe the damage the harvester allegedly inflicted and demanded $30,000 to compensate appellee for the tobacco he lost due to the allegedly worthless tobacco harvester.

“In pleading to a preceding pleading, a party shall set forth affirmatively . . . failure of consideration . . . When a party has mistakenly designated a defense as a counterclaim . . . , the court on terms, if justice so requires, shall treat the pleadings as if there had been a proper designation.” OCGA § 9-11-8 (c). “The purpose of the requirement that affirmative defenses be pleaded is to prevent surprise and to give the opposing party fair notice of what he must meet as a defense. If it is not pleaded it is generally held that the defense is waived. . . .” Phillips v. State Farm &c. Ins. Co., 121 Ga. App. 342 (2) (173 SE2d 723) (1970). Rather than stating a defense of failure of consideration, appellee’s counterclaim alleges breaches of the warranty of merchantability and fitness for a particular purpose. The language alleging the machine to be worthless did not assert the defense of failure of consideration; rather, it described how unsuitable the machine allegedly was for harvesting tobacco. Inasmuch as appellant established a prima facie case and appellee did not establish a legally sufficient defense, appellant was entitled to a directed verdict on its main claim. See Nat. Bank of Ga. v. Keriaze, supra.

2. As stated earlier, appellee’s counterclaim alleged breaches of the implied warranties of merchantability and fitness for a particular purpose. See OCGA §§ 11-2-314 and 11-2-315. Appellant claims it was entitled to a directed verdict on appellee’s counterclaim because, among other things, appellee, having accepted the tobacco picker, did not give the requisite notice of his discovery of the alleged breaches, a prerequisite to a recovery of damages for breach under OCGA § 11-2-714 (1).

OCGA § 11-2-714 (1) states: “Where the buyer has accepted goods and given notification (subsection (3) of Code Section 11-2-607) he may recover . . . damages for . . . the seller’s breach. ...” OCGA § 11-2-607 (3) requires a buyer who has accepted goods to notify the seller within a reasonable time after he discovered or should have discovered any breach, or be barred from any remedy. A buyer “accepts” goods when, after having had a reasonable opportunity to inspect them, he fails to make an effective rejection. OCGA § 11-2-606 (1) (b). “Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.” OCGA § 11-2-602 (1). Appellee received the tobacco harvester in June 1981; used it that harvest but found his 40-inch rows were not amenable to the machine’s capabilities; nevertheless, signed a note for the purchase of the machine in August 1981; signed a contract for the purchase of the machine in June 1982; and used it in 1982, again without success. In arguing against appellant’s motion for directed verdict, appellee admitted he had accepted the tobacco harvester. His failure to notify appellant within a reasonable time of his discovery of the alleged breach of warranty “operates to bar his remedies under either [§ 11-2-607] or [§ 11-2-714].” Official Comment to Sec. 2-714 of the Uniform Commercial Code. Since appellee’s failure to act barred him from seeking damages for the alleged breaches of warranties, the trial court should have directed a verdict in favor of appellant on appellee’s counterclaim.

Decided June 16, 1987.

Kenneth R. Carswell, for appellant.

J. Alvin Leaphart, for appellee.

3. In light of our disposition of appellant’s first and second enumerated errors, we need not address the remaining alleged error concerning the content of the instructions to the jury.

Judgment reversed.

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


text:
    74346.
    SKOMER et al. v. THE STATE.
    (358 SE2d 886)
   Banke, Presiding Judge.

The appellants, Rosemary Skomer and Carol Lee Stone, were jointly indicted for aggravated assault on a police officer. Additionally, appellant Skomer was separately charged in the same indictment with obstruction of an officer and public drunkenness, while appellant Stone was separately charged with driving under the influence, driving without a license, obstructing an officer and making terroristic threats. Appellant Stone’s arrest for driving under the influence of alcohol and driving without a license occurred as she was operating a motor vehicle in which appellant Skomer was riding as a passenger. The other charges resulted from a melee which later ensued at the Barrow County Jail while Stone was being booked, during which, according to the state’s witnesses, appellant Skomer broke a glass coffee pot over the sheriff’s head.

On the morning of the second day of trial, the appellants entered guilty pleas to several charges pursuant to a negotiated plea agreement; however, later that day, after the trial judge had sentenced them, they moved to withdraw these pleas on the basis of certain newly discovered evidence. That motion was ultimately denied, and this appeal followed.

Prior to the commencement of the trial, the appellants’ trial counsel and the district attorney engaged in plea negotiations which evidently resulted in an offer by the district attorney to recommend probationary sentences in return for guilty pleas by the appellants. It is undisputed that the trial judge was present during at least a portion of these plea negotiations and that he participated in them by stating that while he would consider giving the appellants probation if they pled guilty, he would not consider giving them probation if they stood trial and were found guilty by a jury.

The first day of trial ended with the completion of the state’s direct examination of the sheriff’s son, who, as one of his father’s deputies, had been involved both in the arrest and in the subsequent disturbance at the jail. Defense counsel again conferred with his clients at this time about the prospects of entering guilty pleas, telling them: “You know, the judge has said what — if you’re convicted, what’s going to happen, and you’re going to get time. . . . Tomorrow morning, when we start cross on the sheriff’s son, . . . [t]hat’s when the mud’s going to start coming out. . . and if we go into that, you know, this is a point of no return, basically. . . .” The appellants entered their guilty pleas when court convened the following morning. Held:

“Once the question of the validity of a plea of guilty has been raised by a defendant, the state has the burden to show that the plea was intelligently and voluntarily entered. [Cit.]” Sanders v. State, 169 Ga. App. 125, 126 (312 SE2d 160) (1983). Although the appellate courts of this state have apparently not had occasion to address the propriety of judicial participation in the plea negotiation process, the federal courts have uniformly condemned such participation, particularly when it involves discussion of the sentence the judge intends to impose if the plea is not accepted. See United States v. Schmidt, 376 F2d 751 (4th Cir. 1967), cert. den. 389 U. S. 884 (88 SC 158, 19 LE2d 183) (1967); United States v. Werker, 535 F2d 198 (2d Cir. 1976); United States v. Adams, 634 F2d 830 (5th Cir. 1981). Compare Brown v, Peyton, 435 F2d 1352 (4th Cir. 1970).

The federal ban on judicial participation in the plea negotiation process is, to a large extent, mandated by Rule 11 (e) (1) of the Federal Rules of Criminal Procedure, 18 USCA, which specifies categorically that “[t]he court shall not participate in any such discussions.” (Emphasis supplied.) The Georgia rule is less categorical, specifying merely that “[t]he trial judge should not participate in plea discussions.” Rule 33.5 (A), Uniform Superior Court Rules, 253 Ga. at 861. (Emphasis supplied.) However, there is considerably more at stake in such matters than the mere enforcement of a court rule. “[J]udicial participation in plea negotiations is prohibited as a constitutional matter when it is so great as to render a guilty plea involuntary.” United States v. Adams, supra, 634 F2d at 839. See also United States v. Schmidt, supra.

Decided June 16, 1987.

William Rhymer, for appellants.

Thomas C. Lawler III, District Attorney, Steven Franzen, Assis tant District Attorney, for appellee.

It may, of course, reasonably be assumed that any defendant who engages in plea negotiations with the state is mindful of the possibility that he may receive a harsher sentence if he rejects the plea proposal and is found guilty by a jury than if he accepts the proposal and pleads guilty. However, there is an enormous difference between simply being aware or even being reminded by the state that rejection of a plea proposal may result in a greater punishment and being told by the trial judge that a rejection of a plea proposal will result in greater punishment in the event of a conviction by a jury. While we can perceive no harm in the court’s merely communicating to defense counsel its willingness or lack of willingness to accept a particular plea agreement independently negotiated by the parties, it is clearly inappropriate for the court to go further by making statements which have the effect of inserting it into the negotiation process itself.

“When a judge becomes a participant in plea bargaining, he brings to bear the full force and majesty of his office. His awesome power to impose a substantially longer or even maximum sentence in excess of that proposed is present whether referred to or not. A defendant needs no reminder [from the court] that if he rejects the proposal, stands upon his right to trial and is convicted, he faces a significantly longer sentence.” United States v. Werker, supra, 535 F2d at 202, citing United States ex rel. Elksnis v. Gilligan, 256 FSupp. 244, 254 (S.D.N.Y. 1966).

Viewing the comments made by the trial judge in the present case in the context of the circumstances under which the appellants actually made their decision to terminate their trial and enter their pleas, we must conclude that there is, at the very least, a substantial likelihood that the appellants were unduly influenced by the judge’s comments to enter guilty pleas which they would not otherwise have entered. We consequently hold that it was error to refuse to allow the pleas to be withdrawn.

Judgment reversed.

Carley and Benham, JJ., concur.


text:
    74595.
    JOHNSON v. AUTO/MEND, INC. et al.
    (359 SE2d 10)
   Banke, Presiding Judge.

On March 23, 1984, Johnson entered into a 5-year contract of employment with Auto/Mend, Inc., a Georgia corporation, to serve as its president and chief executive officer. The agreement provided that the relationship could be terminated by the corporation for cause upon 60 days’ advance written notice. “Cause” was defined by the contract as “such actions, or failure to take such actions by Mr. Johnson which would have a material adverse effect upon the operations of the company as a whole.”

Following the annual meeting of the board of directors held on October 11, 1985, Johnson was notified by letter that his employment was terminated for cause, effective 60 days hence. Johnson thereafter instituted the present action, charging the corporation, in Count 1 of his complaint, with breach of the employment contract, and charging six of its officers and/or directors, in Count 2, with tortious interference with his contractual rights. The appellees moved for summary judgment with respect to Count 2 of the complaint, and Johnson appeals the grant of that motion. Held:

Johnson asserts that a question of fact remains as to whether the board members who voted to terminate the contract of employment acted with malicious intent. On this issue, the appellees’ motion for summary judgment was supported by the affidavits of six members of the board of directors, five of whom had been in attendance at the October 11th meeting and had voted to terminate the appellant’s contract of employment. Each of these board members averred that it had been unanimously concluded at the meeting that “Johnson’s mismanagement of the affairs of the company as president and chief executive officer was the primary cause of the losses and negative cash flow previously sustained by the company.” Further, each such board member averred that he had voted for Johnson’s termination based on a good-faith determination that such action was in the best interest of the company. Additionally, in response to the appellant’s interrogatories, the appellees enumerated several acts and omissions on the part of Johnson which they contend evidenced his mismanagement of the business.

In response to the motion for summary judgment, the appellant filed a counter-affidavit in which he averred that no action or failure to act on his part had had an adverse effect on the operation of the company and that he had not mismanaged the affairs of the company. He further averred that the appellees conspired to remove him from his role in management in July of 1985 and had placed him in a marketing position, from which he had no longer been able to monitor the business as a whole. However, the appellant was unable, in response to interrogatories filed by the appellees, to identify specific facts or circumstances upon which he based his allegation that the appellees had acted maliciously rather than in what they in good faith believed to be the best interests of the company.

Decided June 16, 1987.

We conclude that the evidence submitted by the appellant provided no facts or circumstances from which actual malice on the part of the appellees could be inferred. “Conclusory allegations by the plaintiff of conspiracy [and] malice ... are insufficient — in the absence of substantiating fact or circumstances [ — ] to raise a material issue for trial. ‘[I]t is the duty of each party at the hearing on the motion for summary judgment to present his case in full.’ Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 604 (203 SE2d 173) (1974). ‘There having been clearly shown a want of actual malice, the pleadings of [appellant] were pierced and the lack of a right of recovery was disclosed. [Appellant] filed no . . . evidence showing malice, and in the absence thereof summary judgment was justified. [Cits.]’ ” Sherwood v. Boshears, 157 Ga. App. 542, 544 (278 SE2d 124) (1981), citing Morton v. Stewart, 153 Ga. App. 636, 643 (266 SE2d 230) (1980).

The appellant’s reliance on Nottingham v. Wrigley, 221 Ga. 386 (144 SE2d 749) (1965), is misplaced. There, the Supreme Court upheld a jury verdict in favor of the plaintiff in a similar suit against the directors of a closely held corporation, based on evidence that, contrary to the directors’ claims of mismanagement, the business had prospered during the term of the plaintiff’s employment. More importantly, the evidence in that case clearly revealed that the board members had conspired to conceal corporate assets in an attempt to deprive the plaintiff of a remedy for the injury he had sustained as a result of the termination of his employment contract, thereby demonstrating the requisite malicious intent. See generally OCGA § 51-12-30. No such evidence having been submitted by the appellant in the present case, there is nothing to controvert the appellees’ showing that they acted in what they believed to be the best interests of the business and without malicious intent. Accordingly, the appellees’ motion for summary judgment was properly granted as to Count 2 of the complaint.

Judgment affirmed.

Carley and Benham, JJ., concur.

John P. Hines, Gregory T. Presmanes, for appellant.

W. Terence Walsh, Donna P. Bergeson, for appellees.


text:
    74633.
    ANDERSON v. THE STATE.
    (358 SE2d 888)
   Banke, Presiding Judge.

Anderson appeals his convictions of rape and burglary. Held:

1. The trial court did not err in denying the appellant’s motion for a directed verdict of acquittal. The victim testified that on the night in question she had awakened in her bedroom to find a man on top of her, choking her and having sexual intercourse with her. The bed was positioned next to a window, through which a street light provided sufficient illumination to enable her to identify her assailant as being the appellant, whom she had known since childhood. She stated that the appellant had not removed his clothing during the attack and that, in attempting to defend herself, she bit the sleeve of his jacket. An investigating officer testified that he observed what appeared to be teeth marks and saliva on the appellant’s jacket later that evening after he was taken into custody. Although the appellant denied committing the offenses, the evidence as a whole was amply sufficient to enable a rational trier of fact to find him guilty of rape and burglary beyond a reasonable doubt. See generally Howard v. State, 165 Ga. App. 555 (301 SE2d 910) (1983).

2. The appellant submits that the trial court erroneously admitted evidence of certain statements made by him while in police custody. After the appellant was taken into custody, advised of the charges against him, and provided with the Miranda warnings, he volunteered the information that at the time the offenses occurred he had been at a certain bar, and he supplied the names of two witnesses who purportedly could verify this. Thereafter, he declined to give a written statement. The trial court did not err in determining at the conclusion of the Jackson v. Denno hearing that the appellant had made the alibi statement knowingly and voluntarily, notwithstanding his subsequent refusal to give a written statement. Moreover, the appellant reaffirmed the substance of the statement through his own testimony at trial.

3. The investigating officer was allowed to testify, over a hearsay objection, that certain scientific tests performed by the State Crime Laboratory had resulted in negative findings. It is axiomatic that “ ‘[h]arm as well as error must be shown to authorize a reversal by this court.’ [Cit.]” Durham v. State, 179 Ga. App. 636, 637 (347 SE2d 293) (1986). We cannot perceive how the testimony in question could possibly have been harmful to the appellant.

Decided June 16, 1987.

Floyd W. Keeble, Jr., for appellant.

Lindsay A. Tise, District Attorney, for appellee.

4. Finally, the appellant submits that the trial court erred in admitting certain testimony regarding his post-arrest refusal to give a written statement. The following testimony was elicited from the investigating officer on direct examination by the state: “Q. Did [the appellant] ask any questions at all about his rights? A. No, sir. Q. Did you ask him to give a statement? A. I asked him would he like to give a statement. Q. What did he say to you? A. He said he didn’t want to give a written statement. . . . Q. Did he say anything else to you?” At this point, a bench conference was held, and appellant’s counsel interposed the objection that such questioning denied his client due process of law in that it constituted an impermissible comment on the exercise of his right to remain silent. No motion to strike the previous testimony or for a mistrial was made, nor were any curative instructions requested. The direct examination then proceeded without further objection, with the state eliciting testimony that although the appellant had refused to give a written statement, he had previously volunteered an alibi and had offered to provide the names of two corroborating witnesses in support thereof.

The questioning concerning the appellant’s oral claim to an alibi defense obviously did not implicate his right to remain silent. Assuming, without deciding, that the testimony elicited prior to the objection did implicate his Fifth Amendment rights, we hold that his failure to request any corrective action by the court in response to the testimony precludes consideration of the issue on appeal. See generally Clark v. State, 149 Ga. App. 641, 645 (255 SE2d 110) (1979).

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    73682.
    TAYLOR v. THE STATE.
    (358 SE2d 845)
   Banke, Presiding Judge.

The appellant appeals his conviction of child molestation.

1. The appellant contends the evidence was insufficient to support the jury’s verdict. “ ‘[W]here the defendant seeks a reversal of his conviction on appeal by . . . asserting the insufficiency of the evidence, the only question presenting itself to the appellate court is whether there is sufficient evidence to satisfy a rational trier of fact of the essential elements of the crime charged beyond reasonable doubt.’ ” Castillo v. State, 178 Ga. App. 312 (2) (342 SE2d 782) (1986), citing Hudgins v. State, 159 Ga. App. 723, 724 (285 SE2d 73) (1981). From the evidence adduced at the trial of the present case, we conclude that a rational trier of fact could have found the appellant guilty of child molestation beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. It is asserted that the trial court erred in finding the 7-year-old victim competent to testify. In a hearing held outside the presence of the jury, the victim promised to tell the truth and testified that she knew the meaning of a promise to tell the truth. She further testified that she knew the difference between the truth and a lie, that she knew she could be punished if she lied, and that, even if no one found out, she could “go to the devil” for telling a lie. Based on this testimony, the trial court did not abuse its discretion in finding the child competent to testify. Accord Chadwick v. State, 176 Ga. App. 296, 298 (3) (335 SE2d 674) (1985), aff’d 255 Ga. 376 (339 SE2d 717) (1986); McCrary v. State, 176 Ga. App. 683 (1) (337 SE2d 442) (1985); Jordan, v. State, 172 Ga. App. 96 (1) (322 SE2d 106) (1984).

3. Pursuant to OCGA § 17-7-210, the appellant’s counsel filed a pre-trial request for a copy of any statements the appellant had made to police while in custody, and the state responded by producing a written memorandum of a confession purportedly made by him. At trial, two GBI agents offered testimony regarding the contents of the alleged oral confession. The appellant contends that the agents attributed certain statements to him during the course of their testimony which were not included in the memorandum previously furnished to him and that the admission of these portions of the agents’ testimony constituted reversible error.

The only oral statement the GBI agents attributed to the appellant which was not included in the written version provided to him was a comment to the effect that the victim’s pants kept “popping open” while she was sitting on his lap. However, the appellant himself testified at trial that the victim’s pants repeatedly “popped open” while she was sitting on his lap. Accordingly, the admission of the agents’ testimony on this point must be considered harmless. See generally Fields v. State, 180 Ga. App. 771 (1) (350 SE2d 488) (1986).

4. The trial court did not err in allowing the victim’s mother to relate certain statements the victim had made to her following the incident. See Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985).

5. On cross-examination of the victim’s mother, the appellant’s counsel attempted to establish that the mother had consulted with an attorney about the possibility of limiting her former husband’s visitation with the victim and the victim’s brother. The trial court’s exclusion of this evidence as irrelevant is enumerated as error on appeal. We agree with the trial court that any custody disputes between the parents of the victim had nothing to do with whether the appellant, who was unrelated to the victim, had molested the child. The trial court did not err in restricting cross-examination to relevant matters. See generally Harmon v. State, 133 Ga. App. 720, 721 (2) (213 SE2d 23) (1975).

6. The appellant enumerates as error the admission of his confession into evidence. From the evidence adduced at the Jackson v. Denno hearing (Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964)), the trial court was authorized to find that the appellant was fully advised of his Miranda rights, that he knowingly and intelligently waived those rights, and that he voluntarily made the statements attributed to him. Accord Newsome v. State, 180 Ga. App. 243 (3) (348 SE2d 759) (1986). Consequently, the admission of the confession was not error.

7. The trial court did not err in excluding evidence purporting to show that the victim had made certain statements to investigators concerning a prior act of molestation allegedly committed against her by a different individual. “The past sexual experience of a child in a case such as this is irrelevant to the issue of whether molestation was committed by the defendant on trial.” Chastain v. State, 180 Ga. App. 312 (2) (349 SE2d 6) (1986).

8. In closing argument, the appellant’s counsel attacked the credibility of the testimony given by the GBI agents, arguing that the agents had fabricated portions of the alleged confession and had tricked the appellant into making certain statements which appeared to be admissions of guilt. In his subsequent closing argument, the state’s attorney was allowed to argue that it is the job of GBI agents to investigate crimes and that they have no “bone to pick” or “ax to grind.” For unspecified reasons, the appellant contends on appeal that these comments were improper and that the trial court erred in overruling his objection to them. We conclude that the comments constituted a fair response to the argument of the appellant’s counsel. The state’s attorney “ ‘[is] entitled to emphasize the evidence favorable to [the state], to discuss and draw inferences from factual matters in evidence relating to the credibility of witnesses, and to respond to points made in — and issues omitted from — the defendant’s closing argument.’ [Cits.] No more than that occurred here.” Ingram v. State, 253 Ga. 622, 634 (8) (323 SE2d 801) (1984).

9. The appellant asserts that the trial court erred in permitting the state’s attorney to speculate to the jury in closing argument on how the victim’s physical condition immediately after the incident might have been evaluated by a physician. Because the state offered no medical evidence regarding the child’s physical condition, the appellant’s counsel had argued to the jury that it was reasonable to infer that such medical evidence would have tended to show that no molestation had occurred. The state’s attorney responded by arguing that where, as in this case, the alleged molestation consists only of fondling, there would be no physical evidence and no reason for a doctor to testify as to the victim’s physical condition. We hold that such an argument was fully authorized under the circumstances. See generally Ingram v. State, supra at 634 (8).

10. The state’s attorney should not, however, have been allowed to argue to the jury that if they read the newspaper they would know that “sometimes children are molested in the same bed with their mother and won’t tell their mother.” Even if true, this cannot be considered a matter of such common knowledge as to permit it to be argued to the jury without any evidentiary foundation. However, since the undisputed evidence was to the effect that the victim had not attempted to conceal the molestation but had instead reported it promptly to her aunt and mother, we do not believe the trial court’s refusal to take corrective action in response to the appellant’s objection to the statement can be considered ground for a new trial. Rather, in the context of the issues being tried and in view of the substantial evidence of the appellant’s guilt, we conclude that it is “highly probable” that the improper argument did not contribute to the verdict. See generally Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).

11. The appellant further contends that the closing argument of the state’s attorney, considered as a whole, was so infected with misconduct as to deny him a fair trial. “Because this state does not recognize the concept of ‘cumulative error,’ it is incumbent upon the defendant to show error with regard to each point he raises. [Cits.]” Campbell v. State, 181 Ga. App. 1, 3 (2) (351 SE2d 209) (1986). Of the incidents cited by the appellant in support of this enumeration, only one prompted an objection and will be reviewed by this court, the remaining having been waived by the appellant’s failure to raise them at trial. See Wright v. State, 255 Ga. 109, 112 (4) (335 SE2d 857) (1985). The one reviewable incident concerns the argument of the state’s attorney that, if certain witnesses had anything to say that would have been beneficial to the appellant, the appellant would have called them to testify. This argument was not improper. See Wilson v. Zant, 249 Ga. 373, 384 (4) (290 SE2d 442) (1982).

12. Several of the appellant’s enumerations of error relate to the trial court’s charge on the issue of venue. The jury was not obligated to believe the appellant’s evidence that the offense could not have taken place in Baldwin County but could have been left in doubt as to in which of several counties the offense was committed. The charge on OCGA § 17-2-2 (e) was therefore correct. Adsitt v. State, 248 Ga. 237, 239 (3) (282 SE2d 305) (1981); Bundren v. State, 247 Ga. 180 (1) (274 SE2d 455) (1981). Moreover, contrary to the appellant’s assertion, the trial court did instruct the jury that venue must be proven beyond a reasonable doubt. See generally Toland v. State, 115 Ga. App. 786 (156 SE2d 215) (1967). These enumerations of error are without merit.

13. The appellant contends that the trial court erred in refusing to grant his motion for mistrial after the court attacked the credibility of a defense character witness by conducting its own questioning of the witness. The witness had previously testified on cross-examination by the state that he would not believe the testimony of a GBI agent that the appellant had confessed to molesting the victim “ahead of” the appellant’s testimony to the contrary. The trial court then asked the witness a series of questions seeking to determine why he would “not believe a GBI agent,” to which the witness responded by explaining that he would believe the appellant over any person he did not know, even a GBI agent.

While we must agree that the trial court should not have engaged in questioning of this tenor, we hold that any harm the appellant may have suffered as a result of it was eliminated by the judge’s admonition to the jury in his final charge to disregard any questions he might have asked any witness which might have been understood as intimating or expressing any opinion prejudicial to the appellant. The case of Brundage v. State, 143 Ga. App. 1 (2) (237 SE2d 473) (1977), relied on by the appellant, is distinguishable in that there the trial judge did not merely question a character witness but cross-examined the defendant himself, pointing out inconsistencies and weaknesses in his testimony and thereby clearly intimating that he did not believe his testimony to be credible.

14. Venue was a contested issue at trial; and the appellant, in an attempt to show that the offense could not have taken place in the county where alleged, sought to introduce into evidence a map of the State of Georgia, purportedly showing the boundaries and locations of the state’s cities and counties. The trial court’s exclusion of this map is enumerated as error.

Assuming without deciding that the map was relevant for the reason asserted, it would still, “of course, [be] error to admit in evidence a map which is not authenticated or proved correct. . . .” Parker v. Smith, 66 Ga. App. 567, 570 (2) (18 SE2d 559) (1942). Here, the only authentication attempted was in the form of a witness’ testimony that the map was “more or less an accurate representation . . . as far as [he could] tell. ...” We hold that this testimony was insufficient to constitute proof of the correctness of the map. Cf. Mickle v. Moore, 188 Ga. 444, 447 (3) (4 SE2d 217) (1939). See Georgia Power Co. v. Green, 207 Ga. 250, 252 (1) (61 SE2d 146) (1950). Consequently, we conclude that the trial court did not err in excluding the document.

Judgment affirmed.

Benham, J., concurs. Carle'y, J., concurs in judgment and in all divisions except Division 10.

Decided May 28, 1987

Rehearing denied June 17, 1987

Milton F. Gardner, Jr., for appellant.

Joseph H. Briley, District Attorney, Alberto C. Martinez, Jr., Assistant District Attorney, for appellee.


author: McMurray, Presiding Judge.

text:
    74001.
    SWICEGOOD v. HEARDMONT NURSING HOME, INC. et al.
    (359 SE2d 3)
   McMurray, Presiding Judge.

Appellant Larry W. Swicegood and appellee Heardmont Nursing Home, Inc. entered into a lease agreement of a nursing home facility on June 30, 1976, for a period of five years. On June 15, 1981, appellee filed a complaint against Swicegood seeking injunctive relief against the removal or other disposal of certain records from the leased premises prior to inspection thereof, money allegedly owed for additional leased bed spaces and, by subsequent amendment, an accounting. Swicegood responded, denying the essential allegations and filed a counterclaim asking for attorney fees, the return of certain personal property and damages for conversion of that property. Swicegood also filed a third-party complaint against Charles C. Mann, d/b/a Mann’s Pharmacy, who was also the President of Heardmont Nursing Home, Inc. During discovery proceedings a general audit was performed and Swicegood made a demand for trial by jury. On July 21, 1986, the trial court granted partial summary judgment against Swicegood on several issues, including the money allegedly owed for additional bed spaces and specified personal property determined to be fixtures or replacement items not recoverable under the lease. Trial by jury was denied and one count of the counterclaim was stricken. These rulings were enumerated as error on an appeal initially filed in the Supreme Court, which was transferred to this court without opinion for disposition. Held:

None of the grounds urged for reversal can be sustained in this court for several reasons. First, the issues raised by the pleadings were equitable in nature. See Grant v. Grant, 202 Ga. 40, 41 ((3) (a)) (41 SE2d 534) (1947). There is no constitutional or statutory right to a trial by jury in equity cases. OCGA § 9-7-17; Hanson v. First State Bank, 254 Ga. 235 (327 SE2d 730) (1985). Second, questions concerning the auditor’s report, which deals with the disputed items of fixtures and other issues, remains to be considered by a jury empaneled by the trial court on its own motion to make findings of fact. Third, the transfer of the appeal to this court by the Supreme Court is tantamount to a ruling eliminating and resolving the equitable and in-junctive issues which lie only within the jurisdiction of that court to determine. Cf. Johnston v. Atlanta Humane Society, 173 Ga. App. 416, 418 (326 SE2d 585) (1985); Cassells v. Bradlee Mgt. Svcs., 161 Ga. App. 325, 326 (1) (291 SE2d 48) (1982). See also Johnson v. Smith, 251 Ga. 1 (1) (302 SE2d 542) (1983). Finally, appellant asserts there was no basis for the issuance of the order for retaining the disputed tangible property in status quo pending an inspection at the Heardmont Nursing Home. We note that this order recites that “counsel for the parties agreed on a temporary order without [a] hearing.” This “obviated the necessity of proof of the agreed facts or resolution thereof by a jury. [Cit.]” Trust Co. of N. J. v. Atlanta Aluminum Co., 149 Ga. App. 605, 610 (3) (255 SE2d 82) (1979). “This is true for the reason that one cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided in causing. [Cits.]” Bennett v. Bennett, 210 Ga. 721, 722 (2) (82 SE2d 653) (1954). Accord Osburn v. Harbison, 175 Ga. App. 397, 400 (333 SE2d 429) (1985); Beam v. Fleet Transport Co., 145 Ga. App. 726, 727 (2) (244 SE2d 582) (1978).

Decided June 3, 1987

Rehearing denied June 17, 1987.

R. Chris Phelps, Robert W. Lavender, for appellant.

E. Freeman Leverett, for appellees.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


author: Sognier, Judge.

text:
    74184.
    TAYLOR et al. v. McDONALD.
    (359 SE2d 1)
   Sognier, Judge.

Sara McDonald sued Roy Taylor and Debbie Black, the owner and resident manager, respectively, of Taylor Apartments, to recover damages for injuries she sustained when she fell on a common walkway. The trial court denied Taylor and Black’s motion for summary judgment, and we granted interlocutory appeal.

The record reveals that both appellee and her daughter, Diane Thomas, rented apartments in the complex. Thomas’ apartment was located across the way and upstairs from that of appellee. Approximately four to six weeks prior to appellee’s fall, an automobile had backed into a support post at the complex, jarring loose the connection between the concrete stairs and the wooden decking which floored the upstairs walkway, thereby creating a gap of approximately one to two inches in width. It is uncontroverted that appellee’s daily visits to the Thomas apartment required her to traverse the damaged area, which was the sole means of ingress and egress for that apartment.

Appellants contend the trial court erred by denying their motion for summary judgment because it is undisputed that appellee had equal knowledge of any defect which may have been the cause of her fall. “It has often been held that the true basis for a landlord’s liability to a tenant for injuries resulting from a defective or hazardous condition existing on the premises is the landlord’s superior knowledge of the condition and of the danger resulting from it. [Cits.]” Richardson v. Palmour Court Apts., 170 Ga. App. 204, 205 (316 SE2d 770) (1984). The record establishes that appellee’s knowledge of the gap in the walkway was at least equal to that of appellants. See Lindsey v. Housing Auth. of Atlanta, 181 Ga. App. 814 (354 SE2d 13) (1987). We find no merit in appellee’s argument that despite her admittedly equal knowledge of the defect, under the rule set forth in Richardson, supra, and in Hull v. Mass. Mut. Life Ins. Co., 142 Ga. App. 269 (235 SE2d 601) (1977), Grier v. Jeffco Mgt. Co., 176 Ga. App. 158 (335 SE2d 408) (1985), and Phelps v. Consolidated Equities Corp., 133 Ga. App. 189 (210 SE2d 337) (1974), she is entitled to recover because the damaged walkway provided the sole means of ingress and egress to Thomas’ apartment. It is uncontroverted that ap-pellee was not a tenant in that apartment, and thus appellee never was “a captive in her own apartment,” Hull, supra at 270. The cases cited by appellee are thus distinguishable. Further, the record establishes the fall occurred in daylight when the crack was clearly visible and easily avoided had appellee exercised proper care for her own safety. “Assuming, arguendo, that the presence of the [crack] constituted actionable negligence on [appellants] part, we have often held that ‘“[an invitee] must exercise ordinary care for [her] own safety, and must by the same degree of care avoid the effect of the [owner’s] negligence after it becomes apparent to [her] or in the exercise of ordinary care [she] should have learned of it. [She] must make use of all [her] senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to [her].” [Cit.]’ (Emphasis supplied). [Cits.]” Anderson v. Dunwoody North Driving Club, 176 Ga. App. 210, 211 (335 SE2d 451) (1985). The facts are undisputed that appellee knew about the crack and had traversed it by choice safely at least daily for four to six weeks. Even construing the evidence in the light most favorable to appellee as the nonmov-ant, see Cowart v. Five Star Mobile Homes, 161 Ga. App. 278, 279 (291 SE2d 13) (1982), the only reasonable explanation for her fall is her failure to exercise ordinary care for her own safety. In the absence of any conflict as to any material issue of fact, appellants were entitled to judgment as a matter of law, and the trial court therefore erred by denying their motion for summary judgment. See Belk-Hudson Co. of Moultrie v. Patterson, 178 Ga. App. 16, 18 (342 SE2d 2) (1986).

Decided May 27, 1987

Rehearing denied June 17, 1987

William A. Turner, Jr., for appellants.

James D. Hudson, for appellee.

Judgment reversed.

McMurray, P. J., and Beasley, J., concur.


text:
    74282.
    DEVINE v. THE STATE.
    (359 SE2d 6)
   Sognier, Judge.

Appellant was convicted of aggravated assault, two counts of criminal trespass and possession of a firearm by a convicted felon. On appeal, appellant contends the trial court erred by failing to take proper corrective action regarding the prosecutor’s misconduct in instructing two State witnesses not to talk to appellant’s counsel.

Appellant’s counsel on cross-examination asked Melvin Baker, a State witness, if the district attorney asked Baker to talk to appellant’s counsel about the case. “The district attorney informed me, I guess about a week-and-a-half ago, not to speak to your office.” Because of this answer the court, sua sponte, held a hearing outside the presence of the jury to determine what had been said in regard to this issue. At the hearing Baker testified that he and his wife had not received any calls from appellant’s counsel and had not heard from him. Baker also testified that no defense investigator had contacted him and that no one from the defense had ever tried to get in touch with him. When Baker and his wife informed the prosecuting attorney that they were scared to death of appellant and stated emphatically that they did not want to talk to appellant, the prosecuting attorney told the Bakers they did not have to talk to the defense if they did not want to, but the choice was theirs. The prosecuting attorney also told the Bakers that if he was going to advise them, “if you are scared to death of this man, I would advise you not to.” The prosecuting attorney informed the court that he made it clear to the Bakers that the choice was theirs, and this was confirmed at the hearing by Mr. Baker.

Although it does not appear in the record, appellant apparently moved for a mistrial at a sidebar conference, because at the end of the hearing on this issue the trial court denied appellant’s motion for a mistrial. We find no error in this ruling. It is clear from the hearing that the prosecuting attorney did not tell the Bakers not to talk to the defense. He informed the Bakers that the choice was theirs, and if he was advising them, he would advise them not to talk to appellant if they were “scared to death” of the man. A trial court has broad discretion in ruling on a motion for a mistrial, and this court will not disturb the court’s ruling absent a manifest abuse of discretion which requires a mistrial to preserve the defendant’s right to a fair trial. Weaver v. State, 178 Ga. App. 91, 93 (2) (341 SE2d 921) (1986). We find no abuse of discretion here. The defense had made no effort to interview the Bakers, and after the prosecuting attorney discovered the Bakers did not want to talk to the defense, he voluntarily gave a copy of the Bakers’ pretrial statements to the defense, even though such copies were not requested and the prosecuting attorney was under no obligation to do so. Moore v. State, 179 Ga. App. 488 (1) (347 SE2d 318) (1986). Accordingly, no corrective action was required and we find no error.

Decided June 8, 1987

Rehearing denied June 17, 1987.

Carl P. Greenberg, for appellant.

Robert E. Wilson, District Attorney, Barbara Conroy, R. Stephen Roberts, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


author: Birdsong, Chief Judge.

text:
    74440.
    GULF INSURANCE COMPANY v. MATHIS.
    (358 SE2d 850)
   Birdsong, Chief Judge.

Breach of Insurance Contract — Contract Interpretation. James Mathis owned a home at 603 Westview Road, Putney, Dougherty County. He built the house in 1974 and lived in it for 6 or 7 years. Cotton States Insurance Company was his insurance carrier for the premises. After he moved to a farm in a nearby county, his son Ronnie and daughter-in-law Delores moved into the house. The parties had an understanding that the house belonged to James, but Ronnie and his family could live in the home. Ronnie paid the mortgage, taxes, insurance premiums for full insurance coverage on the premises, and was responsible for the upkeep of the property. Cotton States continued to be the insurance carrier for approximately 11 years.

In January 1984, Delores Mathis, at her husband’s request, began shopping for a lower insurance premium. The evidence shows that there is a disagreement between Delores Mathis and Carolyn Barefield, an insurance broker, as to the types of coverage requested. Mrs. Mathis claims that she explained to the broker that James Mathis owned the house and lot, but he did not reside on the premises and that her husband desired coverage on the house which was owned by James and on the contents which were owned by him. Mrs. Barefield testified that Mrs. Mathis informed her that James Mathis did not live in the house and the contents were never discussed. Mrs. Barefield could not issue a policy in the Putney area so she contacted an employee of the Detherage Insurance Agency and it issued a binder on a policy underwritten by Gulf using the information supplied by Mrs. Barefield. The policy provided coverage on the house and contents, showed the mortgage holder as the loss payee and was issued in the name of “James I. Mathis” as the named insured. The policy provided for $25,000 contents coverage.

On February 4, 1985, the house and its contents were completely destroyed by fire. James Mathis was paid for the loss of the house and the insurance company denied liability for the contents and refused to pay appellee’s claim for the loss of his personalty. Ronnie Mathis brought suit against Mrs. Barefield, the Detherage Insurance Agency and Gulf Insurance Company to recover the loss of the contents of the house. Gulf Insurance Company was granted an interlocutory appeal from the denial of its motion for summary judgment. Held:

The evidence clearly showed that Ronnie Mathis solicited the policy in question, negotiated the premium, paid the premium and lived on the premises the entire time that the policy was in effect. The only contents of the house during the policy period were owned by him. There was testimony that the contents coverage was specifically requested by Ronnie’s wife. On a motion for summary judgment, the evidence is construed in favor of the party opposing the motion by giving him all favorable inferences that can be drawn from it and the benefit of all reasonable doubts. Blount v. Seckinger Realty Co., 167 Ga. App. 778 (307 SE2d 683). The insurance company does not deny that the contents provision of the policy would have been in effect and payable to James Mathis if he had resided on the premises; however, it contends that Ronnie Mathis cannot claim these benefits because he was not insured under the policy.

We find that Ronnie Mathis had the necessary privity to bring an action to obtain performance under the contract of insurance. In construing an insurance contract the test is not what the insurer intended its words to mean, but rather what a reasonable person in the insured’s position would understand them to mean. Where such a provision is susceptible of two or more interpretations, the courts will construe it most favorable to the insured. U. S. Fire Ins. Co. v. Hilde, 172 Ga. App. 161 (322 SE2d 285).

Decided May 29, 1987

Rehearing denied June 17, 1987

Edmund A. Landau, Jr., for appellant.

G. Keith Murphy, for appellee.

It is clear that this is a homeowner’s policy of insurance and affords coverage for the loss of the insured premises and as part of that coverage also extends coverage to the contents of the home and promises to pay for the loss of contents. The policy is issued to James I. Mathis. By its express terms upon payment of premiums, the dwelling was covered for $50,000 and personal property in the amount of $25,000. “Insured” is defined as James I. Mathis. However, under Section I — Coverages of Personal Property under property listed as not covered (p. 2 of 13 of the contract of coverage), the contract provides: “We do not cover: 6. property of roomers, boarders and other tenants, except property of roomers and boarders related to any insured.” The term roomer, boarder or other tenant is not otherwise defined. By common definition, however, these words include persons in actual and lawful possession of the insured premises. See Webster’s Third New International Dictionary, 1971, p. 1329.

The plain language of this contract when read by a layman can only be construed to read that Gulf Insurance Company does cover property of tenants related to James I. Mathis, the insured. It can hardly be disputed that the contents of the insured premises belonged to Ronnie Mathis, the son of the insured. There is at the barest minimum an issue of fact whether Ronnie Mathis was a “roomer,” “boarder” or “tenant” living in the insured’s house who owned property that was covered because he was related to the insured. The trial court did not err in denying summary judgment to Gulf Insurance.

Judgment affirmed.

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


text:
    74489.
    ROGERS v. GEORGIA PORTS AUTHORITY.
    (358 SE2d 855)
   Birdsong, Chief Judge.

Summary Judgment — Employee Benefits. Rogers was employed by The Georgia Ports Authority in 1975 as a checker. In March 1976, he was given an employee benefits manual published by the Authority. When the manual was distributed, all employees in Rogers’ section were briefed on the contents of the manual. Rogers conceded he was aware of the contents of the manual and had read it and discussed various provisions of the manual over the years. The manual provided that in the event of a work-related injury, the Authority would pay the difference between the actual pay to which the employee was entitled and the amount of workers’ compensation received during the period of disability up to a maximum of 13 weeks plus time equal to accrued-but-unused annual and sick leave. The manual also provided that a permanent employee would be terminated only under certain specified conditions.

On February 11, 1981, Rogers sustained a disabling injury to his back. Apparently Rogers continued to work but in a restricted manner. On or about March 31, Rogers was ordered to handle the movement of 100-pound bags of peanuts. His supervisor deposed that a doctor’s certificate was available indicating that Rogers could handle loads up to 200 pounds. Nevertheless, Rogers declined to move the bags averring that he was physically unable to perform such rigorous work. The supervisor deposed that he considered Rogers was refusing to do the work even though he was capable, in spite of Rogers’ contention that the work was too strenuous. Nevertheless, the reason given for Rogers’ termination was that Rogers was unable to perform the duties of a laborer, a job to which he had been classified several years earlier. There is uncontested deposition testimony by the supervisor that, at the time of his discharge, Rogers was advised or reminded of the manual provisions for utilizing the established grievance procedure if Rogers believed the termination was unfair or improper. Rogers did not avail himself of the established privilege.

After his termination Rogers sought legal advice and concluded that he (Rogers) was a “permanent” employee who had not been discharged in accordance with the terms of the employee manual. Therefore, he sought reinstatement, as well as the payment of supplemental salary payments until his reinstatement. The Authority interpreted the employee manual as not contemplating payments after an employee had been terminated. The Authority therefore declined to reinstate Rogers or pay him any supplemental salary. Rogers filed a complaint against the Authority seeking reinstatement as a checker, all intervening supplemental salary payments, and attorney fees and costs of litigation. The trial court granted partial summary judgment to Rogers holding that the employees’ manual was tantamount to a contract and the contract provided for supplemental payments for the 13 weeks plus accrued sick and annual leave in the amount of $4,995.60. The court also ordered Rogers’ reinstatement as an employee because the contract provided for termination for certain specific reasons, none of which Rogers fit. The court reserved for subsequent trial the issue of attorney fees and costs of litigation based upon bad faith or unnecessary trouble and expense.

The Authority brought an appeal to this court on all issues. This court concluded that in the absence of a definite period of employment, the employee manual did not bestow upon Rogers the status of a permanent, lifetime employee. Thus the employment was terminable at will. This court concluded that Rogers had been discharged lawfully and the trial court had erred in ordering Rogers’ reinstatement and ordering payments of all benefits accruing between the time of the discharge and the court ordered reinstatement. However, this court in its opinion also concluded that the provisions of the employee manual contained plain, unambiguous language capable of only one reasonable construction as to the payment of supplemental benefits for the 13-week period plus accrued-but-unused leave time. Thus this court reversed the grant of partial summary judgment to Rogers as to the illegality of discharge, as to future employability, and in substance directed the grant of summary judgment as to those issues in favor of the Authority. We affirmed the grant of summary judgment to Rogers as to the payment of benefits in the amount of $4,995.60. Still pending was the issue of attorney fees and litigation costs. See Georgia Ports Auth. v. Rogers, 173 Ga. App. 538 (327 SE2d 511).

Upon remand, Rogers twice amended his complaint to seek punitive damages in the amount of $1,000,000 and mental pain and suffering in the amount of $25,000. Lastly he contended that the reason advanced for his termination contained false and slanderous reasons, i.e., that he was malingering rather than disabled. Rogers maintained he was entitled to a hearing to clear his name. The Authority moved for summary judgment as to all remaining issues which was granted by the trial court. Rogers brings this appeal enumerating six asserted errors. Held:

1. In enumeration 4, Rogers contends he was entitled to reinstatement and back pay because under the contract of employment he had a legitimate expectation of future employment, he was discharged without a hearing and thus without due process of law.

We will not for a second time consider an issue that was finally decided between these same two parties. In our first opinion in this case, eo nomine, 173 Ga. App. 538, we held as a matter of law that Rogers’ discharge was lawful and the trial court erred in ordering his reinstatement. There being no right to future employment following the lawful discharge under the contract, it follows there likewise could be no entitlement to reinstatement pay. A judgment of a court of competent jurisdiction is conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside. Delta Air Lines v. Woods, 137 Ga. App. 693, 695 (224 SE2d 763). There is no merit in this enumeration.

2. The issue presented in enumeration of error 3 and partially referred to in enumeration 4 relates to the failure to afford Rogers a hearing and thus to deny him of a due process right.

As hereinbefore indicated, the employee’s manual presented to Rogers prior to his discharge set forth the procedures for a grievance by the employee against the Authority. Rogers admitted he had read the manual and was familiar with those rights. At the time of his discharge, it is undisputed that Rogers was reminded of the right to present a grievance. It is equally undisputed that Rogers did not raise the issue of the failure to hold a hearing until long after his discharge.

Thus it is undisputed that Rogers was not deprived of an opportunity to invoke the grievance mechanism and present any concerns he might have had at the time of his discharge. Even though the unfolding of events demonstrates that Rogers did not avail himself of the grievance procedure, he clearly had that opportunity. Principles of due process require only appropriate notice and a reasonable opportunity to respond to or challenge grounds for unfavorable personnel actions. See Goss v. Lopez, 419 U. S. 565 (95 SC 729, 42 LE2d 725, 739). Under the facts presented by this case, Rogers “was accorded all that was necessary to guarantee him fair notice and an effective opportunity to respond both orally and in writing to the matters surrounding his termination. His failure to take advantage of the procedures made available to him clearly operates as a waiver of any future right to a hearing.” Downing v. Williams, 645 F2d 1226, 1227 (5th Cir. 1981), adopting the dissent in Downing v. Williams, 624 F2d 612, 630 (5th Cir. 1980).

For Rogers to be entitled to a “name clearing” hearing, a “liberty” interest must be involved. Whalen v. City of Atlanta, 539 FSupp. 1202 (N.D. Ga. 1982). A liberty interest is involved when in the course of the termination, the employer makes charges that might seriously damage an employee’s good name, reputation, honor and integrity or might impose a stigma that would foreclose the employee’s freedom to take advantage of other employment opportunities and publicize those charges. Board of Regents v. Roth, 408 U. S. 564, 573 (92 SC 2701, 33 LE2d 548, 558). In order to prevail on his claim, Rogers had to show not only that the Authority collected defamatory information in connection with his termination but that the Authority publicized such information. The mere fact of discharge is insufficient to invoke a liberty interest in employment rights. Whalen v. City of Atlanta, supra p. 1208.

The record in this case makes it clear that the official reason given for Rogers’ termination was his inability to perform his assigned duties. Although his supervisor when deposed several years later indicated that he believed Rogers was probably malingering, the official reason given for discharge was inability and was not grounded upon a violation of the conduct code. In fact the supervisor concluded that if Rogers had performed as requested, Rogers would still be an employee. There is no indication that any of this information was disseminated to anyone other than those involved in the employer-employee relationship and who would have an official right to know the reasons for continued employment or discharge. Lastly we note that this court in the first resolution of this case concluded as a matter of law that the “sole ground for discharging [Rogers] was [Rogers’] inability to work due to his on-the-job injury.” Georgia Ports Auth. v. Rogers, supra at p. 540. Thus in addition to our conclusion that Rogers has waived his right to a hearing, he likewise has shown no grounds for a hearing to clear his good name. This enumeration likewise lacks merit.

3. Rogers’ enumerations 1, 2, 5 and 6 relate to the grant of summary judgment in the face of remaining issues of fact. As indicated we have found no merit to the claim for a name-clearing hearing nor to the reinstatement and payment of back wages. However, we experience difficulty in the grant to the Authority of summary judgment as to attorney fees and costs of litigation.

First of all, we observe that Rogers’ claim for punitive damages as a deterrence in the amount of $1,000,000 and $25,000 for mental pain and suffering normally are not compensable in an ex contractu action in the absence of fraud in the inception as to which there is no contention. Damages ex contractu brought under OCGA § 13-6-11 are compensatory, not punitive or vindictive. Bankers Fidelity Life Ins. Co. v. Oliver, 106 Ga. App. 305 (126 SE2d 887). See also Speir Ins. Agency v. Lee, 158 Ga. App. 512 (281 SE2d 279). However, forcing a plaintiff to sue where no bona fide controversy exists causes unnecessary trouble and expense and would authorize attorney fees and costs of litigation. Georgia-Car. Brick &c. Co. v. Brown, 153 Ga. App. 747, 753-754 (266 SE2d 531); Buffalo Cab Co. v. Williams, 126 Ga. App. 522 (191 SE2d 317).

On the original appeal of this case, we held as a matter of law: “We find nothing in the manual’s language which would allow appellant to avoid paying these benefits to an employee simply by discharging that employee on the very same grounds for which the employee sought the benefits. Therefore, we find no error in the trial court’s order granting appellee’s motion for partial summary judgment ... on the issue of payment of benefits.” Georgia Ports Auth. v. Rogers, supra at pp. 540-541. Thus as a matter of law, we found no reasonable excuse for the Authority to deny the supplemental pay. Even though this 13-week supplemental pay has been paid in obedience to the first judgment of this court, Rogers was compelled to incur legal expense and costs of litigation to enforce the right to which he was entitled. Under such circumstances, the trial court erred in granting summary judgment to the Authority as to compensatory attorney fees and costs of litigation.

Decided June 1, 1987

Rehearing denied June 17, 1987

W. Douglas Adams, for appellant.

Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, J. Robert Coleman, Daniel M. Formby, Senior Assistant Attorneys General, G. Paris Sykes, Patricia G. Griffith, for appellee.

Judgment affirmed in part and reversed in part.

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


text:
    73720.
    HICKOX v. SEABOARD SYSTEM RAILROAD, INC.
    (358 SE2d 889)
   Benham, Judge.

Appellant Hickox, a former periodic employee of appellee Seaboard System Railroad, Inc., from 1942-1957, brought suit against ap-pellee in 1983 under the Federal Employers’ Liability Act (“FELA”) (45 USCA § 51 et seq.), alleging that he had contracted chronic lead poisoning due to appellee’s negligence in failing to provide him with a safe working place. Appellee invoked the doctrine of comparative negligence, asserting that appellant, through his ingestion of illegal liquor, had failed to exercise ordinary care for his own safety. After a four-day trial, the jury returned a verdict in favor of appellant for $62,469. The jury also answered special interrogatories through which they expressly found that appellee had been negligent, that its negligence had a causal connection with appellant’s injury, but that appellant’s contributory negligence had been 70 percent of the cause of appellant’s injuries. Accordingly, the jury’s award was reduced 70 percent, and judgment was entered in favor of appellant in the amount of $18,740.70, from which judgment appellant brings this appeal. The issues on appeal are whether the trial court erred in admitting evidence of appellant’s consumption of moonshine whiskey and in charging the jury on contributory negligence.

FELA coverage extends beyond injuries resulting from accidents to cover injuries in the nature of occupational diseases. Urie v. Thompson, 337 U. S. 163 (1) (69 SC 1018, 93 LE 1282) (1949). The contributory negligence of the plaintiff/employee “shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. . . .” 45 USCA § 53. The evidentiary burden of proving contributory negligence in an FELA case is on the employer raising the issue, and the defendant/employer is entitled to a jury instruction on contributory negligence if there is any evidence to support that theory. Wilson v. Burlington Northern, 670 F2d 780, 782 (8th Cir. 1982). If there is evidence from which the jury could reasonably conclude that the plaintiff/employee did not exercise due care, an instruction is warranted. Meyers v. Union Pacific R. Co., 738 F2d 328, 331 (8th Cir. 1984). Compare Wilson v. Burlington Northern, supra. The admissibility of evidence in an FELA case is ordinarily left to the trial judge, whose decisions will not be reversed absent an abuse of discretion. Lavender v. Kurn, 327 U. S. 645, 654 (66 SC 740, 90 LE 916) (1946); Meyers v. Union Pacific R. Co., supra at 332. All evidence concerning the negligence of both parties is relevant to the determination of contributory negligence under the FELA. Murphy v. Nat. R. Passenger Corp., 547 F2d 816, 818 (4th Cir. 1977).

The pertinent facts of the particular case now before us are as follows. Appellant was employed by appellee for varying periods of time between 1942 and 1957, and was exposed to lead as a painter, paint stripper, and welder. In 1980, he was diagnosed as suffering from chronic lead poisoning. Appellant admitted having a history of consumption of illegal whiskey dating back to his childhood years. Appellant’s expert witness testified that appellant “clearly had some knowledge of the dangers of getting lead from [moonshine] ...” and knew that drinking moonshine posed a hazard to his health. Experts testified that while appellant’s exposure to lead at his work place in 1942-57 would have required him to ingest lesser amounts of lead to maintain high lead levels in his body, the amount of lead retained in his body would have diminished gradually to zero when appellant’s exposure to lead ceased. An expert testified that if appellant’s exposure to lead had ceased in 1957, the 1942-57 lead exposure would not have caused the 1980 diagnosis of plumbism. The expert witnesses listed moonshine whiskey as a source of lead and labeled appellant’s admitted recent (1960’s-1970’s) 10 to 15-year history of moonshine ingestion as very significant and the most likely source of appellant’s lead. One expert, a toxicologist from the Georgia Crime Lab, testified that over half of the moonshine samples taken from throughout the State contained amounts of lead that posed a danger to health and carried a great potential for lead poisoning. A nephrologist testified that approximately 90 percent of moonshine tested in the 1960’s and 1970’s contained lead.

Appellant maintains the evidence concerning illegal liquor and his ingestion thereof was erroneously admitted because there was no evidence that the moonshine actually consumed by appellant contained lead. In essence, appellant’s argument is that circumstantial evidence cannot be used to present the issue of contributory negligence. That, however, is not the law. See Andrews v. Buckner, 143 Ga. App. 862 (3) (240 SE2d 266) (1977). “[T]he same causation standard — whether the act contributed in any way to the injury — applies both to defendant’s negligence and plaintiff’s contributory negligence. Accordingly, the FELA cases that allow plaintiffs to reach the jury on a very slim showing of negligence permit defendants to go to the jury on the issue of plaintiff’s negligence with equally slim showings.” Dixon v. Penn Central Co., 481 F2d 833, 835 (6th Cir. 1973). Inasmuch as there was evidence from which the jury could conclude that appellant was contributorily negligent, the trial court did not err in so charging the jury.

Decided June 17, 1987.

Clinton W. Sitton, Richard H. Middleton, Jr., Francis D. Shaffer, for appellant.

James M. Thomas, James L. Elliott, for appellee.

Judgment affirmed.

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