author: Carley, Judge. Deen, Presiding Judge, Beasley, Judge,

text:
    76956, 76958, 76959.
    JOHNSON REALTY, INC. et al. v. HAND; and vice versa (three cases).
    (377 SE2d 176)
   Carley, Judge.

At the times relevant to these appeals, Rudolph Johnson was the sole shareholder of Johnson Realty, Inc., and his son, Michael Johnson, was employed by the company as a real estate agent. Michael Johnson inquired of Byron Hand whether he wished to sell certain property. Hand responded that he would be willing to sell his property for a specified net price. Shortly thereafter, Michael Johnson returned with a sales contract which he presented for Hand’s acceptance. The sale price was sufficient to net to Hand the amount that he had specified. Michael Johnson did not disclose, however, that the purchaser who was named in the sales contract was his own father-in-law. Hand signed the contract.

When Hand arrived at the closing, he was informed that the purchaser named in the sales contract could not be present. Instead, Michael Johnson’s wife, Mrs. Rae Johnson, was present and prepared to “sit in” for the absent purchaser. According to Hand, there was again no disclosure that the absent purported purchaser was Michael Johnson’s father-in-law. Hand agreed to the transfer of title to the property to Rae Johnson and she, in turn, subsequently did convey the property to her father. Shortly after title to the property had been transferred from his wife to his father-in-law, Michael Johnson was successful in his efforts to sell the property to a third party for a price that was significantly greater than that which Hand had been paid. A large part, if not all, of the profit from this sale went to Michael Johnson, rather than to his father-in-law.

When Hand learned that the property had been resold for a price greater than he had been paid, he brought this action against Johnson Realty, Inc., Rudolph Johnson, Michael Johnson and Rae Johnson. It was alleged that Michael Johnson had breached the duty owed to Hand as Hand’s agent for the sale of the property. See Kellett v. Boynton, 87 Ga. App. 692 (75 SE2d 292) (1953). It was also alleged that an entirely separate transaction whereby Rae Johnson had been conveyed title to real property was void and should be set aside. See OCGA § 18-2-22. The defendants filed answers which denied the material allegations of Hand’s complaint. The case came on for trial before a jury. The jury returned a verdict in favor of Hand as against Johnson Realty, Inc. and Michael Johnson, but not as against Rudolph Johnson and Rae Johnson. Judgments were entered on the jury’s verdicts and Johnson Realty, Inc., Michael Johnson and Hand each filed separate appeals therefrom. The three appeals are hereby consolidated for disposition in this single opinion.

Case No. 76958

In this case, Michael Johnson appeals from the judgment entered on the jury’s verdict against him and in favor of Hand.

1. Michael Johnson enumerates the general grounds.

“The law is uniform and well settled that an agent, who has been engaged to sell real estate for the owner, may not, either directly or indirectly, purchase it himself, without the express consent of the principal after a full knowledge of all the facts. This is so declared by our Code, [OCGA § 10-6-24].” Dolvin Realty Co. v. Holley, 203 Ga. 618, 621 (2) (48 SE2d 109) (1948). “The policy of the law forbids an agent employed to sell to place himself in an attitude of antagonism to the interest of his principal, by associating himself with another in the purchase of the land; and a sale by an agent without the express consent of his principal to himself in association with another, with knowledge of his agency, will be set aside at the instance of the principal. It will be no defense for the agent and his associate to show that the agent acted in good faith, and that the transaction was in fact for the best interest of the principal.” Reeves v. Callaway, 140 Ga. 101, 105 (2) (78 SE 717) (1913). “The relationship of principal and agent is confidential and fiduciary, and demands of the agent loyalty and good faith to the principal ([cits.]); and [OCGA § 10-6-25] provides that ‘The agent shall not make a personal profit from his principal’s property; for all such he is bound to account.’ ” Kellett v. Boynton, supra at 696. “The rule forbidding an agent . . . from purchasing his principal’s property, without the express consent and knowledge of the principal, is not made inapplicable because the property was listed for sale with the agency at a fixed or minimum price. When [Hand], the owner, named the minimum price that [he] would accept for [his] property, it was manifestly intended as a guide to [his] agent in negotiating the sale, and implied a just expectation on [his] part and an engagement on [his] agent’s part that he would make an honest endeavor to obtain a higher price.” Dolvin Realty Co. v. Holley, supra at 622 (2).

It follows that, although the evidence would not demand a finding that Michael Johnson had breached the duty he owed to Hand as Hand’s agent for the sale of the property, it would authorize such a finding.

2. The trial court admitted into evidence testimony and documents relating to the original sales contract presented to Hand wherein Michael Johnson’s father-in-law was named as the purchaser. The admission of this evidence is enumerated as error, the contention being that it was irrelevant because the only sale of the property which actually closed was that to Michael Johnson’s wife.

The original sales contract was clearly relevant to show the initiation by Michael Johnson of an undisclosed effort on his part to earn a secret personal profit on the eventual resale of Hand’s property by first attempting to purchase it indirectly through his father-in-law. “ ‘ “An agent owes to his principal a loyal adherence to his interests, and it would be a fraud upon the principal, and would contravene the public policy, to permit an agent, without the full knowledge and consent of his principal, to enter into a relation involving such a duty, when his allegiance had been already pledged to one having adverse interests, or when his own personal interests would be antagonistic to those of his principal.” The rule has also been thus stated: “An agent will not be allowed to place himself in a position in which his duty and interest conflict, or be permitted to make a secret profit out of his agency.” ’ [Cits.]” (Emphasis in original.) Spratlin, Harrington & Thomas, Inc. v. Hawn, 116 Ga. App. 175, 181-182 (2) (156 SE2d 402) (1967). The evidence was properly admitted. See generally Vinson v. E. W. Buschman Co., 172 Ga. App. 306, 310 (2) (323 SE2d 204) (1984).

3. Over objection, the trial court gave several charges with reference to the rules and regulations promulgated by the Georgia Real Estate Commission. The giving of these charges is enumerated as error.

“Where an agency or commission is granted the authority and power to adopt. . . rules and regulations within the scope of the legislative enactment, such rules and regulations have the same force and effect as that of a statute. [Cit.]” (Emphasis supplied.) Panfel v. Boyd, 187 Ga. App. 639, 643 (2b) (371 SE2d 222) (1988). As an exam-pie, the legislature has delegated to the Public Service Commission plenary quasi-legislative power to regulate the business of common carriers in this state and has also granted to that Commission the authority to adopt such rules and regulations as it may deem necessary to the exercise of that delegated power. See OCGA §§ 46-7-2; 46-7-27; Maner v. Dykes, 55 Ga. App. 436, 438 (3) (190 SE 189) (1937). See also Cambron v. Canal Ins. Co., 246 Ga. 147, 151 (8) (269 SE2d 426) (1980), holding that the Supreme Court has inherent power to regulate the practice of law in this state and the authority to adopt such rules and regulations as it may deem necessary to the exercise of that inherent power.

Accordingly, the rules and regulations promulgated by the Supreme Court, through its inherent power, and by the Public Service Commission, through its delegated authority from the legislature, supplant the necessity for enactment of statutory provisions with reference to the manner in which the applicable profession is actually to be conducted and, having the same force and effect as the supplanted statutes, those rules and regulations become the controlling legal standards of professional conduct. However, unlike the Supreme Court, the Georgia Real Estate Commission has no inherent power over the real estate profession in this state and, unlike the Public Service Commission, the legislature has not delegated to the Georgia Real Estate Commission plenary quasi-legislative power over the general conduct of the real estate business. The General Assembly has determined that it will retain its legislative power to control the manner in which the real estate business is actually to be conducted, and has granted the Georgia Real Estate Commission only the limited quasi-legislative power to determine who is qualified to practice the real estate business in this state. Pursuant to OCGA § 43-40-1 et seq., the Georgia Real Estate Commission is authorized only to promulgate rules and regulations which are “regulatory in nature. [Those rules and regulations] are limited to action by the Georgia Real Estate Commission in the exercise of its licensing powers.” Campagna v. Sara Hudson Realty Co., 137 Ga. App. 451, 452 (224 SE2d 102) (1976). Accordingly, the rules and regulations recognize “certain minimum standards for persons engaged in the real estate business.” Kimball Bridge Rd. v. Everest Realty Corp., 141 Ga. App. 835, 837 (2) (234 SE2d 696) (1977). These “minimum standards” are recognized, however, solely for the regulatory purpose of licensing and, in a civil action based upon a real estate agent’s alleged misconduct, it is only the relevant unsupplanted statutory provisions which are applicable. “Some of the conduct condemned [by the rules and regulation] may also serve as the basis for judicial action for recovery of monetary damages under [relevant] statutes.” (Emphasis supplied.) Campagna v. Sara Hudson Realty Co., supra at 452. It follows that the rules and regulations of the Georgia Real Estate Commission have the same force and effect as that of statutes in the area of licensing and, to keep his license, a realtor must therefore comply with them. Those rules and regulations do not, however, have the same force and effect as that of statutes in the area of civil liability for breach of professional conduct and, to avoid judgment, a realtor must comply with the relevant statutory principles of agency.

The present case involved no regulatory issue concerning licensing. Compare Diversified Holding Corp. v. Clayton McLendon, Inc., 120 Ga. App. 455 (1) (170 SE2d 863) (1969). The only issue was whether Michael Johnson had breached his legal duty to Hand in connection with the sale of Hand’s property. This issue does not arise in the context of a negligence action, wherein the defendant’s conduct is measured against the general standard of the ordinary reasonable man and evidence of custom would be admissible to illustrate that general standard. Compare Coffeen v. Doster, 161 Ga. App. 529 (1) (288 SE2d 327) (1982). Michael Johnson’s conduct is measured against the relevant statutory provisions concerning the law of agency, and not by the irrelevant licensing regulatory provisions promulgated by the Georgia Real Estate Commission. Regardless of whether Michael Johnson’s conduct is in compliance with or in breach of the regulatory provisions, that conduct affords Hand no basis for recovery if it is not proscribed by the relevant statutory provisions. As discussed, the regulations simply do not supplant the statutory principles of agency as the relevant standards against which a realtor’s actions must be judged in a civil action. See generally Panfel v. Boyd, supra at 645 (2b), holding that “[t]he Regulations of the Real Estate Commission are neither a panacea nor a shield which will insulate a real estate broker from compliance with the clear terms of a realty contract to which it is a party.” While the regulations are the relevant standards for determining whether a realtor should lose his license to practice his profession, it is the statutes which are paramount and establish the relevant standards for determining whether he is civilly liable for violating his legal duties. It follows that the trial court erred in giving any charge which was predicated upon the irrelevant rules and regulations, rather than upon the applicable statutory principles of agency.

4. Over proper objection, the trial court admitted into evidence a collection of checks written on the account of Jonesboro Plaza, Inc. Hand apparently owned this corporation and the corporation in turn owned a small shopping center. Johnson Realty, Inc., managed the shopping center and, in its capacity as manager, was authorized to write checks on the Jonesboro Plaza, Inc., checking account.

It appears that the management by Johnson Realty, Inc., of the shopping center had no relevancy to any issue involved in the trial of the present case. The only relevant issue was the conduct of Michael Johnson in his capacity as Hand’s agent for the sale of an entirely separate tract of real property. It is only that agency relationship which was allegedly breached, and any conduct in connection with the management of the shopping center would have no bearing on this case. It follows that the trial court erred in allowing this irrelevant evidence of a separate transaction to be admitted. See generally Head v. John Deere Plow Co., 71 Ga. App. 276, 278 (1) (30 SE2d 662) (1944).

5. The trial court did not err in charging the provisions of OCGA § 10-6-24 to the jury. As discussed in Division 1, the principle of law enunciated in that statute was clearly applicable under the evidence.

6. The trial court did not err in charging the jury on the principles of law regarding confidential relationships. As discussed in Division 1, those legal principles were clearly applicable under the evidence.

7. The trial court gave the following charge: “Misrepresentation of a material fact made wilfully to deceive or recklessly without knowledge and acted on by the opposite party or made innocently and mistakenly and acted on by the opposite party constitutes legal fraud.” (Emphasis supplied.)

The charge states a correct abstract principle of law. See OCGA § 23-2-52. In its emphasized portion, however, the charge relates to the principle of constructive fraud and that principle has no applicability to the fraud claim for damages asserted by Hand in the present case. “To establish the tort, which was the fraud, actual fraud must be shown and constructive fraud will not suffice. [Cit.]” Southeastern Greyhound Lines, Inc. v. Fisher, 72 Ga. App. 717, 722 (4) (34 SE2d 906) (1945). “[A]n innocently made material misrepresentation which the opposite party has a right to act on and does in fact act on to his injury is made to constitute fraud by [OCGA § 23-2-52]; but the fact that the opposite party may occupy [a confidential relationship] does not operate to change that which would otherwise be mere constructive fraud, on account of lack of the element of guilty intent, into actual intentional fraud. It follows that whatever may be the rule in certain foreign jurisdictions with reference to innocent misrepresentations when made by one charged with a special duty to the opposite party to know and to impart the truth ([cit.]), under the statutes and decisions of this State such misrepresentations cannot amount to anything more than constructive fraud, and, as such, are not creative of any independent right of action for damages in tort in favor of the injured party; but they may support an action in equity to rescind a contract so induced. [Cits.] Or they may be pleaded in defense to a suit on a contract thus procured. [Cits.] Or they may, it might seem, under the doctrine of estoppel, be employed in support of an action founded on the contract itself. [Cits.]” (Emphasis supplied.) Penn Mut. Life Ins. Co. v. Taggart, 38 Ga. App. 509, 512 (1) (144 SE 400) (1928).

In the present case, Hand was not seeking the equitable relief of rescission of the contract, and he was neither suing on the contract nor defending against an action on the contract. Hand was asserting the tort of fraud and deceit. Accordingly, the applicable legal issue under the pleadings and the evidence was whether Michael Johnson, as agent for the sale of Hand’s property, had committed actual fraud by failing to disclose a material fact in connection with that transaction. “ ‘Where a person sustains toward [another] a relation of trust and confidence, his silence when he should speak, or his failure to disclose what he ought to disclose, is as much a fraud in law as an actual affirmative false representation. [Cit.]’ [Cit.]” Sutlive v. Hackney, 164 Ga. App. 740, 742 (297 SE2d 515) (1982). It follows that the “portion of the charge . . ., which dealt with legal or constructive fraud, was not properly adjusted to the issues presented by the pleadings and the evidence, and should not have been given. [Cit.]” Bucher v. Murray, 212 Ga. 259, 260 (2) (91 SE2d 610) (1956).

Hand urges that, although an objection to the charge was raised below, this particular ground was not preserved for appellate review or that, if the objection below was sufficient, any error in giving the charge was harmless. However, any consideration of the adequacy of the objection below, the question of harm vel non, or of the applicability of OCGA § 5-5-24 (c) would have no bearing on the ultimate disposition of this case. Since the judgment must be reversed on grounds which have been previously discussed, we need not determine whether the giving of this erroneous charge on constructive fraud constitutes an independent basis for reversal. The charge was erroneous and should not be given in the retrial of this case.

8. There was no error in admitting documentary evidence over an objection which was subsequently withdrawn.

9. There was no error in the giving of a charge to which no timely objection was raised in the trial court.

10. For the reasons given in Divisions 3 and 4, the trial court erred and a new trial must be held.

11. Remaining enumerations of error relate to the admission of evidence and the giving of jury instructions regarding Hand’s OCGA § 18-2-22 claim. These enumerations need not be addressed. The jury returned a verdict against Hand as to this claim and he has filed no appeal from the judgment entered on the jury’s verdict. Accordingly, the OCGA § 18-2-22 claim will not be an issue at the retrial of the case.

Case No. 76956

In this case, Johnson Realty, Inc., appeals from the judgment entered on the jury’s verdict against it and in favor of Hand.

12. The trial court did not err in admitting into evidence testimony and documents concerning the original sales contract presented to Hand wherein Michael Johnson’s father-in-law was named as the purchaser. See Division 2.

13. The trial court erred in admitting testimony concerning the rules and regulations promulgated by the Georgia Real Estate Commission and it also erred in giving any charge which was predicated upon those rules and regulations rather than upon the applicable principles of the law of agency. See Division 3.

14. The trial court’s giving of a charge on the principle of ratification is enumerated as error. Johnson Realty, Inc., urges that the charge was erroneously given because there was no evidence which would authorize a finding that it had ratified the acts of Michael Johnson in connection with the sale of Hand’s property.

It would appear that there was no evidence which would authorize a finding of Johnson Realty, Inc.’s ratification of the acts of Michael Johnson. Under the evidence, however, Johnson Realty, Inc.’s legal liability would not be dependent upon its ratification of the acts of Michael Johnson. “ ‘Ratification is the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account, whereby the act, as to some or all persons, is given effect as if originally authorized by him.’ [Cits.]” (Emphasis supplied.) Greene v. Golucke, 202 Ga. 494 (1) (43 SE2d 497) (1947). The prior acts of Michael Johnson whereby he solicited Hand’s property for sale and then actually sold it were acts which Johnson Realty, Inc. had generally authorized him, in his capacity as its real estate agent, to undertake to perform. Accordingly, Johnson Realty, Inc. would be legally bound by those acts without regard to the principle of ratification. “The principal shall be bound for the care, diligence, and fidelity of his agent in his business, and hence he shall be bound for the neglect and fraud of his agent in the transaction of such business.” OCGA § 10-6-60. This would be true notwithstanding Michael Johnson’s undisputed lack of authority as Johnson Realty, Inc.’s agent to act in violation of the law by indirectly selling Hand’s property to himself so as to obtain a secret personal profit on its resale. “ ‘The rule of “respondeat superior,” or that the master shall be civilly liable for the tortious acts of his servant, is of universal application, whether the act be one of omission or commission, whether negligent, fraudulent, or deceitful. If it be done in the course of his employment, the master is liable; and it makes no difference that the master did not authorize, or even know of the servant’s act or neglect, or even if he disapproved or forbade it, he is equally liable, if the act be done in the course of his servant’s employment. [Cits.]’ ” Evans v. Caldwell, 52 Ga. App. 475, 478 (2) (184 SE2d 440) (1936).

Accordingly, the trial court did err in charging-the jury on the inapplicable principle of ratification. The error was, however, beneficial to Johnson Realty, Inc. The jury was erroneously instructed that Johnson Realty, Inc.’s liability was dependent upon its subsequent ratification of Michael Johnson’s unauthorized acts rather than upon its initial capacity as Michael Johnson’s master.

15. Johnson Realty, Inc. enumerates as error the trial court’s failure to give the following request to charge: “[W]hen an agent ceases to act for his principal and begins to act in his own interest, and to the detriment of his principal, then any knowledge that the agent may have gained is no longer imputed to his principal.”

The charge states an abstractly correct principle of law. See OCGA § 10-6-59; Pursley v. Stahley, 122 Ga. 362 (1) (50 SE 139) (1905). It was not, however, applicable to any relevant issue in the present case. As discussed in Division 14, Hand’s cause of action is in no way dependent upon Johnson Realty, Inc.’s receipt of notice of Michael Johnson’s acts, but is dependent solely upon Michael Johnson’s commission of those acts. Accordingly, Johnson Realty, Inc.’s lack of any imputable knowledge of Michael Johnson’s unauthorized acts would provide it with no defense to liability. The trial court correctly refused to give the inapplicable charge.

16. The trial court’s refusal to give the following request to charge is enumerated as error: “I charge you members of the jury that [Hand] contends, among other things, that Michael Johnson was acting in the capacity of a ‘dual agent.’ I charge you that in Georgia, the theory of dual agency does not apply if . . . Hand knew of Michael Johnson’s interest in the transaction.”

Assuming without deciding that the refused request was a correct statement of the legal concept of dual agency (but see Spratlin, Harrington & Thomas, Inc. v. Hawn, 116 Ga. App. 175, 178 (1) supra, that concept was not applicable in the present case. “Dual agency” arises when the agent of one principal is also acting in a particular transaction as the agent of another principal. “The ‘dual agency’ concept is primarily designed to afford protection to the original principal (and under some circumstances to the second principal) where the agent acts for another in the same transaction. [Cit.]” (Emphasis supplied.) Anderson v. Redwal Music Co., 122 Ga. App. 247, 250 (176 SE2d 645) (1970). In the present case, it was neither alleged nor proved that Michael Johnson had acted for more than one principal when he undertook the sale of Hand’s property. It was alleged and proved that Michael Johnson was acting in the transaction for himself, not as the agent of any undisclosed additional principal. This concept of “self-dealing agency” is controlled by statute. “Without the express consent of the principal after a full knowledge of all the facts, an agent employed to sell may not himself be the purchaser. . . .” OCGA § 10-6-24. The trial court did give a charge on the concept of “self-dealing agency” in the language of OCGA § 10-6-24. It follows that the trial court did not err in refusing to give the requested charge as to the inapplicable concept of “dual agency.”

17. Over objection, the trial court allowed one of Hand’s expert witnesses to give an opinion in response to a hypothetical question. This evidentiary ruling is enumerated as error.

As propounded, the hypothetical question had assumed, as one of its factual predicates, the presentation to Hand of the original sales contract wherein Michael Johnson’s father-in-law was named as the purchaser. According to Johnson Realty, Inc., that original contract was not relevant to any issue in the case and it objected to the inclusion of the presentation of that contract to Hand as one of the elements of the hypothetical question. As discussed in Division 2, however, evidence concerning the original contract was properly admitted as against any objection to its relevancy. Accordingly, the trial court did not err in allowing the expert witness to answer the hypothetical question which had assumed, as one of its factual predicates, the existence of a relevant fact which was properly in evidence. “The opinion of an expert witness may be given in response to a hypothetical question based on facts placed in evidence either by the testimony of other witnesses or by competent evidence of any nature.” Mutual Benefit Health &c. Assn. v. Hickman, 100 Ga. App. 348 (2) (111 SE2d 380) (1959).

18. There was no error in admitting documentary evidence over an objection which was subsequently withdrawn.

19. For the reasons discussed in Division 13, the trial court erred and a new trial must be held.

Case No. 76959

In this case, Hand appeals from the judgment entered on the jury’s verdict returned in favor of Rudolph Johnson.

20. Hand enumerates as error the failure to grant his motion for a directed verdict as to the vicarious liability of Rudolph Johnson, in his personal capacity, for the acts of Michael Johnson.

Rudolph Johnson was the sole shareholder of Johnson Realty, Inc. Michael Johnson was employed by the corporation, and not by his father. Accordingly, Rudolph Johnson could not be held vicariously liable for the acts of his son unless the evidence authorized a finding that the corporate veil of Johnson Realty, Inc. should be pierced. See generally Jenkins v. Judith Sans Intl., 175 Ga. App. 171 (1) (332 SE2d 687) (1985). Hand produced no evidence which would even authorize, much less demand, a finding that Rudolph Johnson’s operation of Johnson Realty, Inc. was such that the corporate veil should be deemed pierced.

Hand relies upon the provisions of OCGA § 43-40-1 et seq. as authority for holding that Rudolph Johnson is vicariously liable for the acts of his son without regard to the concept of piercing the corporate veil. As previously discussed, however, those provisions are merely regulatory in nature and do not have the effect of changing the substantive law applicable in a civil action to recover for a real estate agent’s alleged misconduct. See Campagna v. Sara Hudson Realty Co., supra. Nothing in OCGA § 40-43-1 et seq. obviated the necessity for Hand to pierce the corporate veil of Johnson Realty, Inc. in order to recover against Rudolph Johnson in her personal capacity. The trial court correctly denied Hand’s motion for a directed verdict as to the vicarious liability of Rudolph Johnson for the acts of Michael Johnson.

Judgments reversed in Case Nos. 76956 and 76958. Judgment affirmed in Case No. 76959.

Birdsong, C. J., McMurray, P. J., Banke, P. J., and Benham, J., concur. Deen, P. J., concurs specially. Pope and Beasley, JJ., concur in part and dissent in part. Sognier, J., disqualified.

Deen, Presiding Judge,

concurring specially.

The dissenting opinion relies to a great extent on the case of Gordon v. Gordon, 133 Ga. App. 520, 522 (211 SE2d 374) (1974), the concluding three words of this opinion being “finis sit litium.” A special concurrence was written in that case indicating, “I concur in the judgment affirming the lower court,” and challenging a portion of the opinion. The part questioned appears not to be a part of that relied on by the dissent.

I concur in Divisions 1, 3, 4, 5, 6, 9, 10, 11, 12, and 14 through 18 and in the judgment of the majority opinion.

Beasley, Judge,

concurring in part and dissenting in part.

I concur fully except with regard to Divisions 3 and 8, involving Michael Johnson’s appeal, case no. 76958, and Division 13, involving Johnson Realty, Inc.’s appeal, case no. 76956.

These divisions relate to court charges in connection with the Georgia Real Estate Manual and testimony about it. Michael Johnson enumerates as error the giving of four charges, three regarding the Georgia Real Estate Manual and one regarding the Georgia Real Estate licensing law. He also enumerates the admission of the manual into evidence. Johnson Realty joins Michael Johnson in enumerating as error the admission of the manual and the giving of the charge in connection with the Georgia Real Estate licensing law. It further enumerates as error the admission of testimony regarding the licensing law.

As to the admission of the document, objections were withdrawn and consequently the issue dissolved and the manual was admitted into evidence. About this appellants cannot complain, having acceded.. The majority addresses the court charges in Division 3, and both the charges and the testimony in Division 13. In order to properly consider the charges and testimony, we must understand what the manual is and the limited purpose for which it was offered and, in obedience to the court’s charge, used.

The manual was published by the Georgia Association of Realtors, Inc., under authorization of the Georgia Real Estate Commission, a statutory agency which regulates the profession. OCGA § 43-40-2. The foreword, by the Commission, states that “[t]he Commis- ’ sion is responsible for preparing the contents of the manual.” It also states that, in addition to its being a preparatory aid for license examination, “[t]he Commission also intends that current licensees may utilize the contents of this manual as an aid to legal and ethical brokerage activity.” A caveat is added to warn that it is not intended as a substitute for legal advice or service. The manual contains Title 43 Chapter 40 of OCGA (the licensing law), the Rules and Regulations (Chapters 520-1 through 520-5), and procedures and explanatory notes regarding various aspects of the real estate practice.

The court charge about which both Michael Johnson and Johnson Realty complain, and which is controlling here, states:

“I charge that a person holding a Georgia real estate license may not be sued for his failure to comply with statutes governing real estate brokers, but those statutes set out the relevant standards and may be referred to in determining whether the broker has violated or fulfilled his fiduciary duties.” Thus the court limited the use to which the jury could put the manual. Plaintiff had introduced this docu-" mentary evidence and the testimony in connection with it for the limited purpose of serving as a guideline of the minimum standards in the real estate profession.

While of course a great portion of the manual is not relevant to the standard of behavior required of Michael Johnson and Johnson Realty in dealing with Hand, the objections go to the heart of the relevancy of any of it to this issue. Since the court expressly circumscribed the use of it to what was relevant, there was no harm in admitting the whole thing so as to provide the context.

“Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it. [Cits.]” Gordon v. Gordon, 133 Ga. App. 520, 522 (1) (211 SE2d 374) (1974). As in that case, the evidence here “was admissible for the purpose stated.”

“ ‘Evidence which, in connection with other evidence, tends, however slightly, to prove, explain, or illustrate a fact, even though it is not sufficient, standing alone, to sustain a finding of such fact, is relevant, has probative value and is admissible as against objection as to its relevancy and probative value; doubt as to the latter should be resolved in favor of admission and against exclusion, sufficiency not being a test or condition of admissibility [Cits.]’ [Cits.]” Dept. of Transp. v. Whitehead, 169 Ga. App. 226, 231 (4) (312 SE2d 344) (1983). Evidence of doubtful relevancy should be admitted, and even if irrelevant evidence is admitted, it does not require a new trial unless the objector’s rights are prejudiced. Wages v. Sibran, Inc., 171 Ga. App. 14, 15 (1) (318 SE2d 679) (1984).

Much of the dispute here involved the fiduciary relationship between plaintiff and defendants and the duties of each of the latter to him in their professional capacity. At issue was whether each had lived up to the standards of the profession in dealing with plaintiff, or whether they had violated their professional standards and in addition committed fraud. In aiding the jury to determine what the professional standards were, the minimum standards required by the agency which regulates the profession would be relevant albeit not determinative.

Just as expert testimony on the subject would aid in giving the jury a measuring stick, so would the law, rules and regulations, and practices outlined in the manual for the proper practice of the profession. It would be akin to evidence of custom in the trade. See City of Macon v. Yaughn, 83 Ga. App. 610, 614 (2) (64 SE2d 369) (1951). The court in Coffeen v. Doster, 161 Ga. App. 529, 530 (1) (288 SE2d 327) (1982) stated the rule: “evidence of custom and practice of persons in a similar trade is admissible to show whether one so engaged can be faulted for negligence by failing to exercise that degree of care customarily followed in the trade, . . .” Relevance to the breaches of duty alleged in this action for fraud and deceit would be no less than in a negligence action.

The minimum standards set by the law and the agency are not recognized in law “solely for the regulatory purpose of licensing,” as ruled by the majority. As quoted from Campagna v. Sara Hudson Realty Co., 137 Ga. App. 451, 452 (224 SE2d 102) (1976): “Some of the conduct condemned may also serve as the basis for judicial action for recovery of monetary damages under other statutes.” The court in Kimball Bridge Rd. v. Everest Realty, 141 Ga. App. 835, 837 (2) (234 SE2d 673) (1977) quoted this and stated: “[h]ence, this Act recognizes certain minimum standards for persons engaged in the real estate business.” Fraud is a statutory cause of action. OCGA § 51-6-1.

The agency is empowered to “do such acts and things as may seem advisable to the commission in the advancement of the profession and the standards of the real estate business.” OCGA § 43-40-2 (b).

Decided November 30, 1988 —

Rehearing denied December 20, 1988

Oliver, Duckworth, Sparger & Winkle, G. Robert Oliver, Warren A. Sellers, for Johnson Realty & W. R. Johnson.

Remar & Graettinger, John S. Graettinger, Jr., Marcia E. Fishman, Megan E. Gideon, for Hand.

Brown & Foster, Larry A. Foster, for Michael Johnson.

“ ‘Questions of relevancy of evidence ... are for the court, and in the absence of an abuse of judicial discretion, this court will not interfere. [Cit.]’ ” Wages, supra at 15. There was no abuse of discretion in applying OCGA § 24-2-1 as it relates to the testimony concerning the manual, which document was in evidence, particularly in light of the limiting instruction. The charge on the subject was proper and did not supplant but rather supplemented the court’s extensive charges on the principles of agency.

Since I find no error in the matter ruled upon in Division 13, I dissent to the reversal of the judgment against Johnson Realty, Inc., Case No. 76956.

I am authorized to state that Judge Pope joins in this opinion.


source: Caselaw Access Project

author: Banke, Presiding Judge. Beasley, Judge, dissenting.

license: Public Domain

text:
    77059.
    CSX TRANSPORTATION, INC. v. DARLING.
    (377 SE2d 217)
   Banke, Presiding Judge.

Darling was awarded a verdict of $800,000 in a personal injury action against Seaboard System Railroad, Inc., brought pursuant to the Federal Employers’ Liability Act (FELA), 45 USCA § 51 et seq. While the suit was pending, Seaboard became known as CSX Transportation, Inc. In this appeal from the denial of its motion for new trial, CSX contends that the verdict and judgment should be reversed as excessive.

Darling had worked for the railroad since 1961 as a switchman at a rail yard, where large freight trains were broken down and their cars reassembled into smaller trains headed towards the same destination. In this process, the cars were individually set in motion by a switch engine and then guided to their proper destinations in the yard by opening and closing switches, until they ultimately struck and coupled with the other cars making up the same train. Darling’s job was to operate the switches, and in order to get to them he would sometimes ride the unattended cars as they proceeded through the yard. On the occasion in question, a car on which Darling was riding was sideswiped by another car, which had failed to couple with the other cars to which it had been routed and had thus been propelled back in the direction from which it had come. Darling’s left arm was caught between the two cars, severely injuring it. According to the treating physician, who was the railroad’s company doctor, Darling sustained a “severely comminuted [i.e., crushing type] fracture of essentially the whole shaft of his . . . upper arm bone.” The bone was “broken into a minimum of four different pieces.”

There was evidence that before being transported to the hospital, Darling was kept waiting for over an hour so that his supervisor could see for himself whether the injury was serious enough to warrant calling an ambulance. Although Darling was hospitalized for only three days, he was out of work for the next six months. Upon his return, he was assigned to work as a switchman on through freights, a job which requires less switching than does being a switchman at a rail yard. He has remained at that work since then, although he has periodically missed time due to the residual pain caused by his injury. Darling’s co-workers testified that while on the job he would rub his arm from time to time and, when the weather was cold, would try to get his arm “easy” by warming it near the stove. In the opinion of the company physician, Darling had suffered a 10-percent permanent disability to his arm, which translated into a 4-percent disability to the whole person.

At the trial, which took place over four years after the injury, Darling testified that he still suffered constant, severe pain in his shoulder and elbow and that he also experienced numbness through his arm and into the fourth and fifth fingers of his hand. The treating physician testified that the numbness could be attributable to pressure on the nerves caused by scar tissue. In his unsuccessful efforts to obtain relief from his pain, Darling has consulted several other physicians, has tried various types of pain medication, and has received cortisone shots in his arm and shoulder. His residual pain prevents him from sleeping for more than two or three hours at a stretch, restricts his recreational and household activities, and has caused him to become irritable with his family.

There was evidence that the appellee has incurred $1,757 in medical expenses, that he lost $10,500 in wages during the six months following the accident when he was completely disabled, and that he subsequently lost $36,840 in wages due to periodic disability attributable to the injury. There was also evidence that he can be expected to lose up to about $145,000 in wages in the future due to the residual pain from his injury. After application of a discount factor to reduce future damages to present value, the jury was thus authorized by the evidence to award him up to about $185,000 as special damages. The only other element of compensable damages was pain and suffering, which therefore amounted to at least $615,000 of the $800,000 verdict. Held:

1. “Questions concerning the proper measure of damages in FELA cases, like questions of liability, are to be settled according to general principles of law as administered in the federal courts. Chesapeake & Ohio R. Co. v. Kelly, 241 U. S. 485, 491 (36 SC 630, 60 LE 1117) (1916); Norfolk & Western R. Co. v. Liepelt, 444 U. S. 490, 493 (100 SC 755, 62 LE2d 689) (1980). It has been held that the damages recoverable under the FELA on account of a railroad employee suffering injury or death on the job are compensatory only and that punitive damages are not recoverable. (Cit.) However, the jury’s determination of the amount of damages to be awarded is otherwise inviolate, ‘absent an award so excessive or inadequate as to shock the judicial conscience and raise an irresistible inference that passion, prejudice or another improper cause invaded the trial. . . . (Cits.)’ Lane v. Gorman, [347 F2d 332], 335 [(10th Cir. 1965)]. This standard of review is consistent with that which obtains under Georgia law, which has been stated as follows: ‘Before the verdict will be set aside on the ground that it is excessive, where there is no direct proof of prejudice or bias, the amount thereof, when considered in connection with all the facts, must shock the moral sense, appear “[exorbitant],” “flagrantly outrageous,” and “extravagant.” “It must be monstrous indeed and such as all mankind must be ready to exclaim against at first blush.” It must carry its death warrant upon its face.’ (Cits.)” Seaboard System R. v. Taylor, 176 Ga. App. 847, 849 (2) (338 SE2d 23) (1985).

There is no “direct proof” in this case that the jury’s verdict resulted from prejudice or bias against the appellant. In opposition to the motion for new trial, Darling in fact submitted affidavits from several jurors to the contrary. Thus, we have no basis to assume that in assessing damages for pain and suffering, the jury was responding to anything other than the evidence presented on that issue. In the context of this evidence — which established that Darling sustained a bone-crushing trauma to the entire upper half of his left arm which has left him in such constant and severe residual pain that, years later, he is still unable to sleep at night for more than two or three hours at a stretch — we must conclude that the verdict is not so exorbitant, flagrantly outrageous or extravagant on its face as to shock the judicial conscience or to demonstrate that the jury intended for a portion of its award to constitute punitive rather than compensatory damages. It follows that the verdict is not subject to reversal for ex-cessiveness on appeal. Accord Simpson v. Reed, 186 Ga. App. 297, 300 (11) (367 SE2d 563) (1988).

The appellant’s reliance on such cases as Seaboard System R. v. Taylor, supra, and Nairn v. Nat. R. Passenger Corp., 837 F2d 565, 568 (2d Cir. 1988), as authority for a contrary conclusion is misplaced. The plaintiff in Seaboard System R. v. Taylor sought to recover for back pain which she had begun to experience after jumping a distance of about three feet to the ground from a switch engine traveling at 10 to 12 miles per hour. She was not aware of any back pain at the time of the incident, did not begin to feel any until three weeks later, and did not seek medical attention until 20 months later, when she consulted an orthopedist at the request of her attorney. The orthopedist identified her condition as “dysfunctional low back pattern,” meaning “there is something wrong producing symptoms about the lower back.” He testified that the plaintiff’s condition had improved since he had been treating her, that her prognosis was “excellent,” and that he had never assigned her a disabling rating or advised her to quit working. Moreover, he acknowledged that her condition was consistent with such other possible causes as heavy sneezing or coughing, stepping off a curb, or being manipulated by a chiropractor, none of which, it is fair to say, are indicative of severe trauma. The injury involved in that case was, in short, very minor in comparison to the injury involved in the present case.

The severity of the injury involved in Nairn v. Nat. R. Passenger Corp., supra, similarly cannot be equated with that of the injury in the present case. The plaintiff there hurt his back while attempting to lift a piece of heavy equipment which was embedded in ice. He completed his shift but continued to experience pain. Following a series of diagnostic tests which included X-rays, a CAT scan, and a myelogram, he was diagnosed several months later as having “musculoligamentous strain.” He later re-injured his back while shoveling wet sand at a construction site. The ultimate diagnosis was “lumbosacral strain which produced a certain degree of disc degeneration.” Id. at 567. Clearly, the severity of the trauma and resulting injury in the present case is categorically greater than was the case in either Nairn or Taylor. Indeed, this case is perhaps closer to Vanskike v. Union Pac. R., 725 F2d 1146 (8th Cir. 1984), where an award of approximately $1,100,000 for pain and suffering was upheld in a FELA case as compensation for a bone-crushing injury to the upper arm, albeit one which had resulted in the amputation of the arm between the shoulder and elbow.

2. The appellant contends that the trial court erred in failing to exclude certain “prejudicial” and “unwarranted” statements made by Darling’s counsel, as well as remarks made by certain witnesses, all of which allegedly prejudiced its defense. Since these remarks were not objected to in the trial court, they provide nothing for review on appeal. See, e.g., Seaboard Coastline R. Co. v. Delahunt, 179 Ga. App. 647 (3) (347 SE2d 627) (1986).

3. During his closing argument, Darling’s counsel suggested to the jury a formula for determining the amount of damages to be awarded for pain and suffering. The appellant contends that counsel’s argument in this regard sought multiple recoveries for the same element of damages. We disagree. Counsel merely listed ten elements which, “put together,” could properly be used in assessing an amount of damages to be awarded for pain and suffering. In doing so, he specifically admonished the jury to apply the law of damages given by the court in its instructions. We hold that the argument in question was neither improper nor misleading.

4. The trial court did not err in considering the affidavits of certain jurors which Darling submitted at the hearing on the motion for new trial in an effort to rebut the appellant’s assertion that the award was the product of bias or prejudice against the railroad. Pursuant to OCGA § 9-10-9, affidavits of jurors may be taken to sustain though not to impeach their verdict. See generally Wright v. Satilla Rural &c. Co-op., 179 Ga. App. 230 (1) (345 SE2d 892) (1986); Seaboard Coastline R. v. Towns, 156 Ga. App. 24 (4) (274 SE2d 74) (1980).

Judgment affirmed.

Deen, P. J., McMurray, P. J., Carley, Sognier, Pope, and Benham, JJ., concur. Birdsong, C. J., and Beasley, J., dissent.

Beasley, Judge, dissenting.

Although I concur in Divisions 2, 3, and 4, I respectfully dissent because the award for pain and suffering must be deemed excessive under FELA law.

The humerus bone of the arm between shoulder and elbow was broken in four places in a comminuted fracture, meaning that the breaks were jagged rather than clean. The injury was severe and Darling was hospitalized for three days. Surgery was not required, but his arm was casted. He was then followed for a year by Dr. Waldrop, the orthopedic surgeon who had treated him at the hospital. The bone completely healed, but Darling continued to have pain in his shoulder and elbow, as well as some “popping” in his joints.

Associated with an injury such as the one Darling suffered is extensive soft tissue damage which will not be evident on X-rays. Dr. Waldrop saw Darling again in November 1986, in preparation for his deposition in this case. Darling still complained of pain and some numbness down the inside of his arm and in his fourth and fifth fingers. Dr. Waldrop opined that this could be caused by scar tissue or pressure on a nerve. In his opinion, Darling suffered a 10 percent permanent disability in his upper arm which would be 1 percent to 4 percent disability of the whole man.

Darling saw a second doctor in 1986 and received three cortisone shots in his elbow and shoulder for pain. That doctor’s opinion was that Darling had bursitis and would continue to have residual pain. The bursitis could have been the result of the trauma.

In preparation for trial, Darling was seen by Dr. Wofford, a specialist in the treatment of chronic pain, in 1984. He underwent a thermogram, a heat sensitive photograph which shows more than normal heat being emitted from painful areas. In his opinion, Darling was experiencing pain in his left arm and shoulder.

Darling missed six months of work during his recovery. After his return to work as a switchman, his arm was painful but this did not prevent him from doing his job. Co-workers stated that he would rub his arm from time to time and, when the weather was cold, would try to get his arm “easy” by warming it near the stove. He worked as a switchman on a through freight, which required less switching than a local or a yard job. His salary, due to raises, was near the $50,000 per year mark in 1985.

According to both Darling and his wife, the pain interfered with his sleep and he was unable to sleep more than two or three hours at a stretch. Also, he became irritable and was unable to help his son with his motorcycle racing or perform household tasks as he had done before the injury.

Giving Darling the benefit of the highest figures, his actual damages over his life were $193,597. The jury was required to reduce this figure to $183,917, its present value using a 5 percent reduction factor. The only other compensable element was pain and suffering. The verdict and judgment were for $800,000.

Having carefully examined the record of the evidence and argument which was submitted the jury, and having given the plaintiff the benefit of all doubts as to the facts, and applying the federal standard, the award of over $616,000 for pain and suffering exceeds that inexact amount which would not carry the irresistible inference that an improper cause prompted it. Whether the cause was prejudice, sympathy, humaneness, punishment, a misunderstanding of the components of compensation, or something else, the minimum amount attributable to the only non-special element of damages is excessive to the degree that it shocks the judicial conscience as a matter of law.

I recognize that the age-old test is subjective, but it nevertheless is a test of law and appeals to the conscience of the court and not to the private and personal consciences of the individuals who serve as judges. I also recognize that as an appellate court, the question is whether the trial court’s conscience should have been shocked as a matter of law. Otherwise the denial of a new trial was not an abuse of discretion. See Cullen v. Timm, 184 Ga. App. 80, 83 (2) (360 SE2d 745) (1987); Great Atlantic &c. Co. v. Turner, 180 Ga. App. 533, 536 (349 SE2d 537) (special concurrence) (1986).

Although there are no specific criteria or factors in law by which the court’s conscience is governed, those objective facts considered in other cases give guidance to a measurement. Nairn v. Nat. R. R. Passenger Corp., 837 F2d 565, 568 (2d Cir. 1988).

While no case has been found involving exactly the circumstances of plaintiff here, there are several comparable ones. Taylor, supra, involved a railroad hostler helper, one who rides the engine and lines up switches, who, afraid that a collision was about to occur, jumped off the engine onto the ground, a distance of three feet. Although she felt no immediate pain, she thereafter suffered “dysfunctional low back pattern” and bursitis in her heel. She missed 180 days of work due to her condition, with lost wages of $14,000. She was able to continue working for the railroad. She testified that she was no longer able to perform her normal life activities including bowling, cutting grass, swimming, etc., due to the pain. This court concluded that compensatory damages in the amount of $250,000 were excessive.

In Seaboard C. L. R. v. Towns, 156 Ga. App. 24 (274 SE2d 74) (1980), a railroad employee was injured when the platform on which he was standing gave way. He suffered a traumatized disc in his spine and would never again be able to do the heavy type work he had previously been doing for the railroad. He was unable to continue working for it. He suffered continual back pain, pain and numbness in his legs and arms, and periodic loss of equilibrium. This court upheld a verdict of $220,000 which included $3,000 in medicals.

In Central of Ga. R. Co. v. Nash, 150 Ga. App. 68 (256 SE2d 619) (1979), 41-year-old Nash suffered an injury to his knee when a defective grab iron came off in his hand causing him to fall. As a result, he had to have surgery twice on the knee, during which his kneecap was removed. He suffered “excruciating” pain, had to undergo substantial drug therapy, and had regained only 80 percent of the strength in his knee two years after the accident. At times, he was seen to have tears in his eyes as he attempted to put weight on his injured leg. As a result of the injury, arthritis had developed in his knee, which made a grinding noise as he walked. He had increased susceptibility to severe arthritis because of his injury and a greater chance than normal that the knee would wear out completely and the entire joint would have to be removed. Medical expenses, which would continue, were $2,779.10 at the time of trial, and wages lost as a result of his ten-month absence were $12,726.58. The verdict of $300,000 was upheld here after a motion for new trial was denied.

A verdict of $600,000 was upheld in Ball v. Burlington Northern R. Co., 672 SW2d 358 (Mo. Ct. of App. 1984), a FELA case in which a painter for the railroad was constantly exposed to toluene diisocyanate, which the railroad knew or should have known caused serious lung damage. As a result of his exposure, Ball, who had no lung problems prior to working for the railroad, developed severe lung problems which were permanent and disabling. Due to lack of oxygen, his heart was also working harder than normal. Because Ball was permanently totally disabled, would incur substantial medical expenses in the future, and was in constant pain and suffering, the court upheld an award of $600,000.

In Nairn v. Nat. Passenger Corp., supra, an award of $765,000 for a back injury was upheld by the trial court, which denied the railroad’s motion for new trial, but then overturned as excessive by the appellate court under FELA.

Nairn was a foreman of a construction and repair crew. He was 33 years old. While attempting to lift a piece of heavy equipment embedded in ice, he injured his back. Although he continued working, the pain worsened and he sought medical attention. He was diagnosed as suffering from a muscular/ligament strain, and, after reinjuring his back on the job, as having some disc degeneration. He had a 15% permanent back function impairment. He was advised not to do heavy work. As a result, he quit working for the railroad and took a job paying less, with no benefits. He experienced a great deal of pain, could no longer engage in sports, roughhouse with his children, or perform his previous household chores such as chopping wood, shoveling snow, etc. He had become “distant” since his injury and was depressed.

The value of Nairn’s lost wages, his only special damages, was found to be $350,000, leaving a $400,000 award for pain and suffering.

The Second Circuit held that: “[W]e do not mean to belittle Nairn’s pain and disappointment at no longer being the active, athletic man he once was or to minimize the very real impact of the injury on Nairn’s life and lifestyle. We conclude, however, that an award for pain and suffering of at least $400,000 for a 15% functional impairment is one that ‘shocks’ the judicial conscience.’ ” Id., at 568.

In Darling’s case, without belittling his pain and suffering in any way, the facts are that he suffered only a 4 percent disability maximum, was able to work as a railroad switchman, and was unlikely to incur future medical expenses due to the injury, although he might receive pain counseling. The pain which he suffers is intermittent and, although there are changes in his daily life, they are not comprehensive. The $616,000 solely for pain and suffering was so excessive that I am compelled to conclude that a new trial on the issue of damages is required. Cf. McKinney & Co. v. Lawson, 257 Ga. 222 (357 SE2d 786) (1987), which applies the state law on excessiveness.

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

Decided December 5, 1988 —

Rehearing denied December 20, 1988

Alston & Bird, James H. Senterfitt, Elizabeth A. Price, for appellant.

Billy E. Moore, for appellee.


author: Deen, Presiding Judge. Sognier, Judge,

text:
    77500.
    HYDE v. THE STATE.
    (377 SE2d 187)
   Deen, Presiding Judge.

Appellant Hyde was convicted on one count of child molestation and one count of aggravated child molestation, the victim of both being appellant’s daughter, who was four or five years old when the offenses occurred. After his conviction Hyde moved for new trial on the general grounds and the additional grounds that the child (ten years old at the time of trial) was incompetent to testify and that the testimony of the nurse practitioner who had examined and talked with the victim was inadmissible because the witness was not a medical doctor. After denial of the motion, Hyde appealed to this court, enumerating the denial of the motion for new trial as a multi-pronged error which alleged that the evidence was insufficient to sustain the verdict, that no proper foundation had been laid for the nurse practitioner’s testimony, and that the nurse practitioner’s testimony was improperly admitted because she was not a medical doctor. Held:

1. Examination of the record and transcript reveals that there was more than a sufficiency of competent evidence, including but not limited to the testimony of the victim herself, to authorize the rational trier of fact to find appellant guilty as charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

As to appellant’s allegations concerning the nurse practitioner’s qualifications and the alleged lack of foundation for her testimony, the transcript shows that during the course of the testimony defense counsel objected on these two bases but that the court overruled both objections; that the objection that the witness’ qualifications were less than those of a medical doctor was renewed and again overruled; and that the objection regarding lack of foundation was not renewed. According to the transcript, the nurse practitioner’s credentials as to education, special training, and experience were elicited at the commencement of her testimony, which followed the testimony of two social workers who had testified regarding their knowledge of the victim’s family situation in general and the abusive activities of her father in particular.

McAfee’s credentials to testify as to the victim’s vaginal and hymenal scarring, as brought out on direct examination, are as follows. In response to a question as to her duties under the protocol for nurse practitioners working (as she had testified she did) under a physician’s supervision, she testified, “I do history taking, physical examinations, order lab work . . ., order . . . x-rays or other diagnostic tests.” Counsel then asked, “Are there any particular groups of patients that you specifically handle for Dr. Ward?,” to which McAfee replied: “Yes, all the women’s exams for annual checkups [,]... well-baby checkups on children . . . [, and] exams on children who have had alleged sexual abuse.” In response to further questions, Mc-Afee stated that she had examined approximately fifty alleged child abuse victims since undertaking her present work, and that she had previously “been trained at [Atlanta’s] Grady Hospital in the Rape Crisis Center to evaluate adult and child victims of sexual abuse.” She went on to state that, in addition to her bachelor’s degree in nursing, she had earned two professional master’s degrees (one in Critical Care and another which qualified her as a Nurse Practitioner); that she had had thirty hours’ course work and training at Ridgeview Institute (an Atlanta psychiatric hospital); and that she had only recently completed “two days of intensive training in [the child sexual abuse] area” in a Huntsville, Ala., medical facility. After giving this testimony regarding her experience and training in the child abuse area, the nurse practitioner then went on to recount her factual findings and certain conclusions therefrom. We regard this sequence as constituting an adequate foundation for this witness’ testimony, given the nature of the charges against defendant/appellant.

Moreover, the law in Georgia does not require that only medical doctors be permitted to give testimony regarding a medical issue, but allows others with certain training and experience to testify on issues within the scope of their expertise. In Avret v. McCormick, 246 Ga. 401 (271 SE2d 832) (1980), the Supreme Court on certiorari affirmed the ruling of this court that a licensed registered nurse is qualified to testify as an expert witness within the areas of her expertise. See McCormick v. Avret, 154 Ga. App. 178 (267 SE2d 759) (1980). The Supreme Court held that the excluded testimony in McCormick should have been admitted: “ ‘A witness with such skill, knowledge or experience in a field or calling as to be able to draw an inference that could not be drawn by the average layman may be qualified as an expert witness.’ Agnor, Georgia Evidence, § 9-5. ‘Medical experts are persons possessing technical and peculiar knowledge, and any person learned in medical or physiological matters is qualified to testify as an expert thereon, even though he is not a medical practitioner [as defined in OCGA § 43-34-20 (3)].’ 32 CJS 336, Evidence, § 546 (92). ‘A nurse may or may not be qualified to state an inference . . . according to the extent of his or her training and experience.’ 32 CJS 345, Evidence, § 546 (92).” In Bethea v. Smith, 176 Ga. App. 467 (336 SE2d 295) (1985), this court, at 470, distinguished the issue there (Is a podiatrist qualified to testify as to the standard of care in “the medical profession generally,” and with special reference to orthopedic surgeons?) from that in McCormick, noting that in certain special areas, as in McCormick, there is “an overlap of medical and nursing expertise” which permits nurses with expertise in those areas to testify as expert witnesses.

Further, Agnor’s Ga. Evidence (2d ed., 1986) states at § 9-5 that a person’s “qualification as an expert witness rests entirely in the sound discretion of the judge . . . The decision of the judge will not usually be overturned” unless the witness actually lacks appropriate credentials or the judge has applied the wrong criteria. We find here that McAfee’s qualifications were appropriate and adequate.

Appellant further alleges that the portion of the nurse practitioner’s testimony which identified the father as the molester was hearsay and therefore inadmissible. OCGA § 24-3-4 permits, as an exception to the hearsay rule, testimony concerning statements made as part of the medical history when relevant to diagnosis or treatment. OCGA § 43-26-1 (3) defines “Practice of nursing as a registered professional nurse” as “the performance for compensation of any act in the observation, care, and counsel of the ill, injured, or infirm . . . which requires substantial specialized judgment and skill based on knowledge and application of the principles of physical . . . science.” In recording the child’s statements as part of the medical history, then (including statements relating to sexual abuse), McAfee was merely fulfilling her professional duty under OCGA § 43-26-1 and under the protocol under which she worked for supervising physicians. The same is true of the nurse’s clinical findings during her examination of the child’s pubic and pelvic areas; in response to direct examination McAfee replied that her findings “were consistent with the history that [the child] related to me,” and that vaginal scarring of the sort she found “would occur from an object being placed in the vagina, a blunt type.” This testimony was well within the scope of this nurse’s expertise, given the specialized training and experience to which she had previously testified.

We find readily distinguishable such cases as Pegg v. State, 183 Ga. App. 668 (359 SE2d 678) (1987); Russell v. State, 181 Ga. App. 624 (353 SE2d 820) (1987); and Penn. &c. Ins. Co. v. Gilliam, 88 Ga. App. 451 (76 SE2d 834) (1953), which speak only of a physician’s qualifications as an expert witness and make no mention of a nurse’s qualifications. Smith v. Hospital Auth., 161 Ga. App. 657 (288 SE2d 715) (1982) is also distinguishable. In that case the exclusion of testimony proffered by a nurse was upheld because it was determined that the excluded testimony dealt with “decisions and treatment that were exclusively within the professional skills of medical doctors,” id. at 660, unlike the observation of the scarred vaginal tissue which, in the instant case, was well within the expertise of the specially trained nurse practitioner.

In Johnson v. State, 149 Ga. App. 544 (254 SE2d 757) (1979), a case closely analogous on its facts to that at bar, this court held at 545: “The . . . enumeration complains of the admission over objection of the physician’s testimony as to the victim’s out-of-court statements . . . that intercourse with her father had taken place.” The court found that the inclusion in the testimony of the identity of the perpetrator as the defendant, which was contained in the out-of-court statements, was unnecessary for medical purposes, OCGA § 24-3-4, and that admission of that part of the statement was therefore error. Nevertheless, the court went on to hold, at 545: “However, the evidence was cumulative and its admission not prejudicial to the defendant.” Examination of the transcript in the instant case reveals that the nurse practitioner’s testimony was cumulative of that of other witnesses, including the victim herself, and therefore harmless.

2. We remind appellant that “[a]n enumeration of error may not be enlarged by brief on appeal to cover issues not contained in the original enumeration.” Scott v. State, 177 Ga. App. 474, 477 (339 SE2d 718) (1986); accord Chevrolet-Pontiac-Canada Group v. Pearson, 182 Ga. App. 796 (357 SE2d 152) (1987); Tucker v. State, 173 Ga. App. 742 (327 SE2d 852) (1985). We have nevertheless, out of an abundance of caution, examined the merits of the various elements enumerated as error and find them not to be such as to constitute reversible error.

Judgment affirmed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Pope and Beasley, JJ., concur. Carley, Sognier and Benham, JJ., specially concur in part and dissent in part.

Sognier, Judge,

concurring specially in part and dissenting in part.

I respectfully dissent from the majority’s holding in Division 1 that the admission of a nurse practitioner’s testimony stating her opinion the victim had been sexually abused was not error. I do not agree that the witness was qualified to testify on a matter requiring an expert medical opinion.

The nurse practitioner, Laurie McAfee, first testified regarding the medical history she took from the victim. Although evidence of statements made by a patient describing medical history is admissible under OCGA § 23-3-4 insofar as such statements were “reasonably pertinent to diagnosis or treatment,” medical diagnosis is the exclusive province of physicians, OCGA § 43-34-20 (3); see Penn. &c. Ins. Co. v. Gilliam, 88 Ga. App. 451, 453 (76 SE2d 834) (1953), and registered nurses such as McAfee may administer medical treatments only as prescribed by a practicing physician. OCGA § 43-26-1 (3). However, I find no error in the admission of McAfee’s testimony regarding the victim’s medical history in view of McAfee’s statement that she acted under the authority of Dr. Brad Ward at the time she examined the victim. See Sparks v. State, 172 Ga. App. 891, 892 (2) (324 SE2d 824) (1984).

McAfee next testified as to the victim’s out-of-court statement to McAfee that appellant was the abuser of the victim. Although admission of such testimony was error because it was not reasonably related to the taking of medical history, Roberson v. State, 187 Ga. App. 485, 486 (370 SE2d 661) (1988), this error was harmless here because the testimony was cumulative of the victim’s testimony, Johnson v. State, 149 Ga. App. 544, 545 (5) (254 SE2d 757) (1979), and also was admissible pursuant to OCGA § 24-3-16, which provides that “[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” The victim in the instant case was available to testify at trial and did so testify. Although the record does not expressly show that the trial court found that “sufficient indicia of reliability” were present, the evidence adduced at trial did reveal that McAfee was trained to evaluate child molestation victims, and that she was a detached professional with no personal interest in the outcome of the case. There was no evidence the victim’s statement was obtained under coercion or duress. Thus, the trial court was authorized to find that the victim’s statement was made voluntarily to a trustworthy witness, and accordingly that the circumstances of the statement provided sufficient indicia of reliability. See Newberry v. State, 184 Ga. App. 356, 357-358 (2) (361 SE2d 499) (1987).

However, I find that reversible error was committed by admission of the nurse practitioner’s opinion testimony that the victim had been sexually abused. The nurse practitioner, who examined the victim approximately four years after the alleged sexual abuse occurred, testified that upon examining the victim she observed scarring of the victim’s hymenal membrane, and then stated, over proper objection, that in her opinion this finding was consistent with the history of sexual abuse related to her by the victim. McAfee further testified that in her opinion the scarring was caused by penetration of the vagina by a blunt object.

“The diagnosis and the causes and effects of diseases and other kindred matters of medical practice form an important field of expert testimony. Except to the extent that the physical condition of a person is open to ordinary observation by persons of common experience, opinion evidence in this field is limited to the opinions of experts — that is, of physicians.” 31 AmJur2d Expert & Opinion Evidence § 103 (1967); see Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200, 204 (345 SE2d 904) (1986). Nurses, who are not authorized by law to diagnose injuries or diseases or to prescribe treatments, are not qualified to testify as expert witnesses regarding “decisions and treatment that [are] exclusively within the professional skills of medical doctors.” Smith v. Hospital Auth., 161 Ga. App. 657, 660 (3) (288 SE2d 715) (1982). Interpretation of the cause and significance of vaginal scarring is such a matter and thus must be presented by expert medical opinion. Pegg v. State, 183 Ga. App. 668, 669 (359 SE2d 678) (1987); Russell v. State, 181 Ga. App. 624, 626 (3) (353 SE2d 820) (1987). Because no one other than a licensed medical doctor was qualified to state the opinion at issue here, and because McAfee, a nurse practitioner, is not a licensed medical doctor, the trial court erred by allowing her to testify. See Fountain v. Cobb Gen. Hosp., 167 Ga. App. 36, 37 (306 SE2d 37) (1983); see generally Moore v. State, 221 Ga. 636 (5) (146 SE2d 895) (1966).

The medical malpractice cases cited by the majority on this issue, Bethea v. Smith, 176 Ga. App. 467 (336 SE2d 295) (1985), and McCormick v. Avret, 154 Ga. App. 178 (267 SE2d 759) (1980), aff’d sub nom., 246 Ga. 401 (271 SE2d 832), are inapposite. In Bethea, we found that, although pursuant to statutory authorization the podiatrist-witness was capable of rendering the same treatment as the defendant orthopedic surgeon for the condition at issue, there was no evidence the same standard of care for that condition was recognized by both schools of practice, and thus the podiatrist was not competent to present expert medical testimony against the orthopedic surgeon. In McCormick, this court authorized the testimony of a nurse on an issue not within the exclusive province of physicians. These cases do not authorize the admission of the opinion testimony at issue here.

Having concluded that the opinion testimony was improperly admitted, the remaining question is whether the error necessitates reversal of the conviction. “The test for determining whether error not of constitutional dimension is prejudicial is, of course, a familiar one. Regardless of whether there was other independently sufficient evidence to convict appellant, [the court] can find the error harmless only if it is ‘highly probable that the error did not contribute to the judgment.’ [Cits.]” Parker v. State, 162 Ga. App. 271, 275 (5) (290 SE2d 518) (1982). Because of the importance juries attach to medical testimony, I cannot find “that it was highly probable that the consideration of the erroneously admitted [opinion testimony] of the state’s [witness] did not influence the jury’s verdict,” Estes v. State, 165 Ga. App. 453, 456 (301 SE2d 504) (1983), and accordingly I would reverse.

Decided November 30, 1988 —

Rehearing denied December 20, 1988

Ronald L. Davis, for appellant.

Darrell E. Wilson, District Attorney, William F. Riley, Jr., Assistant District Attorney, for appellee.

I am authorized to state that Judge Carley and Judge Benham join in this special concurrence and dissent.


author: Deen, Presiding Judge.

text:
    77591.
    FEINBERG v. DURGA.
    (377 SE2d 33)
   Deen, Presiding Judge.

Appellee Durga’s right foot was run over by the wheel of an automobile operated by appellant Feinberg. Ms. Feinberg had just picked up her younger brother from a Columbus, Georgia, junior high school and was preparing to exit from the school driveway when Durga stepped from the curb and apparently ran into the side of the moving vehicle. The impact knocked him to the ground, and he sustained minor injury to his forehead and left leg, in addition to extensive injuries to the metacarpal bones and other areas of the right foot. The action below ensued.

Both defendant/appellant Feinberg and her brother testified at trial that their car was moving slowly at the time of the accident and that they did not see Durga until just at or just after the moment of impact; Durga testified that he had looked to both left and right before leaving the curb, as was his habit, and had seen no moving cars but had heard a “jack-rabbit start” as he stepped into the drivéway. An assistant principal standing in an open breezeway near the driveway testified that he saw Durga, as the latter was stepping off the curb, turn in the direction opposite to that from which the Feinberg automobile would have been visible and wave to another school official with whom he had been talking just prior to the accident. The assistant principal further testified that the Feinberg automobile was traveling at approximately 10 miles per hour and that he had heard no sound like a car “being gunned or floored.”

Another witness, a long-time friend and co-worker of Durga’s, testified that it was Durga’s fixed habit to look both left and right before stepping into a roadway. An investigating officer testified that there was evidence that someone or something had come in contact with the right front fender of the Feinberg vehicle and had wiped the dust off, but that he had found no evidence, in the form of wiped-off dust or otherwise, of contact on the front or other parts of the car. The officer also testified that, on the basis of the evidence (e.g., no skid marks, the fact that the car had stopped only about 15 feet beyond the point of impact), he would estimate the car’s speed at 8-10 miles per hour. Durga, on the other hand, testified that prior to the accident he had seen several vehicles sitting in a stationary position approximately 125 feet distant, and that during the approximately two seconds required for him to take two steps after leaving the curb, the car which struck him had apparently traveled that distance from a “jack-rabbit” start, at a speed of perhaps 50 miles per hour; that this was the only basis on which he could estimate Feinberg’s speed because he had not seen the vehicle in motion prior to an instant before the impact; and that at that moment he had seen a headlight “out of the corner of [his] eye.” Durga offered no evidence tending to identify the Feinberg automobile as the source of the sounds which he had interpreted as a “jack-rabbit start.”

The trial court denied defendant/appellant’s motion for directed verdict on the basis that there were genuine issues of material fact requiring jury resolution. The jury found for plaintiff/appellee in the amount of $100,000. Feinberg moved for j.n.o.v. and subsequently for new trial, alleging (1) that Durga’s friend’s testimony regarding the former’s caution upon entering a roadway was inadmissible, and (2) that the trial court had erred in failing to give certain requested jury instructions. Upon denial of the motion for new trial, Feinberg appealed to this court, enumerating as error, in addition to the general grounds (enumerations 3, 4, 5), the denial of her motions for directed verdict and j.n.o.v., alleging that Durga had failed to carry his evidentiary burden (enumerations 1, 2); the denial of the motion for new trial on the basis of the trial court’s failure to give jury instructions on the doctrines of sudden appearance and emergency (enumerations 7, 8) and the doctrine of contributory negligence (enumeration 9).

1. We find devoid of merit appellant’s seventh, eighth, and ninth enumerations, which contend that the trial court erred in denying the motion for new trial despite having allegedly failed to give certain jury instructions. Examination of the record indicates that the evidence did not authorize instructions on the doctrines of emergency and sudden appearance. Central of Ga. R. Co. v. Brower, 106 Ga. App. 340 (127 SE2d 33) (1962). The trial transcript shows that, contrary to appellant’s allegation, the court did charge the jury on contributory negligence and, moreover, in conjunction with this instruction, also charged OCGA §§ 40-6-91 (B) and 40-6-92, which deal with the duties of a pedestrian entering a roadway.

2. Appellant contends that appellee failed to carry his evidentiary burden and that the trial court therefore erred in denying her motions for directed verdict and for j.n.o.v. OCGA § 9-11-50 (a) prescribes that, in order for a directed verdict to be mandatory on the trial court, “the evidence . . . shall demand a particular verdict.” (Emphasis supplied.) Scrutiny of the transcript reveals that appellee carried his evidentiary burden sufficiently to withstand the motion. This enumeration is without merit.

3. In her sixth enumeration appellant alleges that it was error for the trial court to deny the motion for new trial based on the admission of testimony regarding Durga’s habit of looking both ways before entering a roadway. The witness, a long-time friend and colleague, testified that he and Durga had regularly left work together for two years, and that in all that time appellee had never once failed to look in both directions before crossing the street that lay between the workplace and the lot where they parked their cars.

Appellant contends that Georgia’s rules of evidence prohibit the introduction of evidence of actions or omissions on previous occasions as probative of what occurred on a particular occasion. In Whidby v. Columbine Carrier, 182 Ga. App. 638 (356 SE2d 709) (1987), appellants sought to introduce the driving record of the truck driver whose allegedly excessive speed had caused the vehicular collision in which appellants’ decedent was killed. This court upheld the trial court’s exclusion of this evidence: “[Appellee’s] negligence or lack of negligence on this occasion could be proved only by the facts of the event, and not by evidence of his prior driving record or of his general character for carelessness or recklessness in driving. [Cits.] Evidence of defendants’ similar acts or omissions on other and different occasions is not admissible. [Cits.] It is not probative of the issue at hand . . .” Id. at 639. Likewise, in Beal v. Braunecker, 185 Ga. App. 429 (364 SE2d 308) (1987), we held, at 431, “[0]n the issue of liability . . . the rule remains that proof of defendant’s prior driving record or evidence of defendant’s similar acts or omissions on other and different occasions is inadmissible.” See OCGA § 24-2-2; Carsten v. Wilkes &c., 181 Ga. App. 834 (353 SE2d 922) (1987).

“However, the rule is well established that a witness may testify to his own fixed habits and customs.” Thomas v. Neuman Hosp., 185 Ga. App. 764, 768 (365 SE2d 859) (1988). “Although a witness may have no distinct or independent recollection of the details of a fact occurring in the course of the routine of his business, he may testify ... to his fixed and uniform habit in such cases, and state that he knows that what he did in a given transaction was in accordance with that habit.” Leonard v. Mixon, 96 Ga. 239 (23 SE 80) (1895). In Thomas, this court, citing Mixon, supra, held that “the testimony objected to was properly admitted as circumstantial evidence of fixed and uniform habits rather than of conduct in other transactions, which is neither relevant nor admissible. [Cits.]” Id.

Such testimony may be provided not only by the actor himself, but, in certain circumstances, by others in a position to know his habits. In Stripling v. Godfrey, 143 Ga. App. 742 (240 SE2d 145) (1977), appellant assigned error to the admission of evidence concerning a particular habit of the decedent, whose blood alcohol reading, at the time of her death resulting from being struck by a truck on the highway in front of her home, indicated that she was intoxicated. This court held at 742 et seq., “Testimony concerning the decedent’s habit of drunkenly stepping in front of approaching vehicles . . . was properly admitted . . . [I]t was relevant to whether she was contributorily negligent. Generally, evidence of a decedent’s negligence in previous, isolated instances is not admissible as bearing on negligence at the time of death. [Cit.] Likewise, evidence of negligence in doing certain acts is not admissible when the decedent was not doing those acts at the time of death. [Cit.] And evidence of the decedent’s character for negligently performing certain acts is not admissible . . . [Cit.] However, evidence of a party’s habitual carelessness, recklessness, or negligence in performing particular acts would be admissible where death ensued from such acts.” In Carswell v. State, 171 Ga. App. 455, 460 (320 SE2d 249) (1984), we cited the foregoing passage from Stripling, supra, and held: “The probative value of evidence as to such fixed and uniform habits is for the jury . . .”

Scrutiny of the case law indicates that the admissibility of such testimony by persons other than the actor is almost always confined to cases in which the actor has died; otherwise, only the testimony of the actor himself regarding his habit or custom is admissible. See Stephen W. Brown &c. v. Gowers, 157 Ga. App. 770 (278 SE2d 653) (1981); Sams v. Gay, 161 Ga. App. 31 (288 SE2d 822) (1982). See also Gulf Refining Co. v. Smith, 164 Ga. 811, 812 (139 SE 716) (1927); Farmers’ Ginnery & Mfg. Co. v. Thrasher, 144 Ga. 598, 599 (87 SE 804) (1915); Burch v. Americus Grocery Co., 125 Ga. 153, 159 (53 SE 1008) (1906); Russell v. Pitts, 105 Ga. App. 147, 149 (123 SE2d 708) (1961); Agnor, Agnor’s Ga. Evidence, (2d ed., 1986), § 10-18, “Habit”; Cleary, McCormick on Evidence, (2d ed., 1976), Ch. 17, “Character and Habit,” 188, 189, 195; Green, Ga. Law of Evidence (3d ed.), §§ 67, 68.

In the instant case the issue is plaintiff/appellee’s habit vel non of looking both ways before entering a roadway — the act which he was doing at the time of his injury. Durga himself testified that it was his fixed habit to look both ways. The challenged witness testified unequivocally that not only on every occasion when he and Durga left work during a two-year period, but consistently on other occasions in and about Columbus and even when they went on vacation together, “He always looked before he walked, always.” In sharp conflict is the testimony of other witnesses, cited supra, regarding the movements of Durga himself and of the vehicles present in the driveway.

Decided December 5, 1988 —

Rehearing dismissed December 20, 1988.

Hatcher, Stubbs, Land, Hollis, & Rothschild, William B. Hardegree, Clay D. Land, for appellant.

James A. Elkins, Jr., for appellee.

In the light of the authorities cited, supra, and after careful consideration of the possible ramifications of a rule that would permit strangers to the action to testify regarding the habits and customs of another, whether or not the actor were dead or otherwise unavailable, we are persuaded that the better rule, in cases where the actor is available, is that stated in Stephen W. Brown &c. v. Gowers, supra at 783: “A witness may testify as to his fixed and uniform habit in such cases but not as to the habit and customs of another.” Were we to hold otherwise, the trial courts would be thronged by friends, relatives, and colleagues lining up to testify concerning a particular party’s habits, and we would think ourselves transported back to the not-so-good old days when the outcome of a case could be decided by the number (and even the rank) of the witnesses each side could produce. In the instant case, for example, what would there be to prevent appellant and her brother — and conceivably a host of others — from swearing that looking before she left the curb, and moving at a nominal speed, was her fixed and immutable habit? Admission of the friend’s testimony was error, and we must therefore reverse the judgment below.

4. Having found reversible error, we do not address appellant’s enumeration of the general grounds.

Judgment reversed. Carley, J., concurs. Sognier, J., concurs in the judgment only.


author: Sognier, Judge. Deen, Presiding Judge,

text:
    77440.
    IDEAL POOL CORPORATION v. BAKER.
    (377 SE2d 511)
   Sognier, Judge.

Daniel Baker brought an action in several counts against Ideal Pool Corporation and others to recover damages for breach of contract (Count I) and fraud (Count II) plus exemplary damages, attorney fees and costs resulting from the installation, modification, and failure to repair his backyard swimming pool. The trial court granted Ideal’s motion for a directed verdict as to attorney fees and costs of litigation, but denied its motion for a directed verdict as to damages for Counts I and II. The jury awarded $3,500 actual damages on Count I and $3,500 actual damages plus $60,000 exemplary damages on Count II against Ideal. Baker was also awarded actual damages against some of the other remaining defendants, who are not involved in this appeal. Upon Ideal’s motion for a new trial, or, in the alternative, for judgment n.o.v., the trial court denied the motion on condition that Baker accept a reduced sum of $4,666.66 total actual damages and $40,000 exemplary damages, to which Baker agreed. Ideal appeals from the judgment entered on the revised verdict.

The record reveals that in April 1973, appellee contracted with appellant to install a wood-walled, vinyl-lined, in-ground pool in his backyard. Their written contract was accompanied by a warranty which stated that “[appellant guarantees] that the celcure pressure-treated wood panel and supporting structure of your Ideal Pool will not rot, decay or deteriorate for a period of 20 years from the date of installation of your pool. We agree to replace or repair at your home WITHOUT CHARGE TO YOU any panel which rots, decays or deteriorates during this period.” Installation of the pool was completed in June 1973. It is uncontroverted that appellee used the pool from June 1973 until October 1980 without experiencing any problems other than normal wear and tear.

In October 1980, appellee contracted with the other defendants in the case below, who are unrelated to appellant, to modify the pool by replacing the vinyl liner with a fiberglass shell constructed inside of and adhering to the existing wall system constructed by appellant in 1973. In October 1981, appellee noticed some discoloration and flaking of the fiberglass. In the spring of 1982, he also noticed a gap between the fiberglass shell and the coping, which was reported to the 1980 contractors. The following spring appellee observed that the cover placed over the pool during the winter months had sunk into the pool, and that the water level in the shallow end of the pool had decreased to approximately one foot; that the area around the main drain installed during the 1980 remodeling was cracked and sunken; and that the south wall of the pool had bowed inward. When called the following fall, appellant’s general manager, Lawson Fields, inspected the pool and, finding that the pool had been modified without appellant’s knowledge or consent by the construction of the fiberglass shell to replace the vinyl liner, he concluded it was no longer an “Ideal pool” and recommended that appellant not honor its warranty. Fields also concluded that although one wooden frame member appeared to be in poor condition, the reason for the wall failure was not rotting wood but the lowering of the water level in the pool over an extended period (presumably from the leak caused by the cracked fiberglass near the main drain). In July 1984, ten months after filing this action, appellee had the pool plowed into the ground at a cost of $1,300.

1. Appellant contends the trial court erred by denying its motions for directed verdict and judgment n.o.v. on the fraud count because the evidence was insufficient to show fraud. We agree and reverse.

“The five elements necessary to be shown [for an action based on fraudulent misrepresentation] are that the misrepresentation or falsehood was knowingly made, that it related to a material fact, that its purpose was to deceive another and induce him to act, that he did act upon it and that he was injured as a result. Where there is no evidence [of] scienter, that is, that the false statement was knowingly made with false design, there can be no recovery. An innocent misstatement may amount to negligence but it is not fraud. [Cits.]” Day v. Randolph, 159 Ga. App. 474, 475 (283 SE2d 687) (1981). “In a fraudulent concealment action, the alleged defrauded party must show that the alleged defrauder had actual, not merely constructive, knowledge. If there is no actual knowledge of the defect on the part of the silent party there can be no concealment with the intent and for the purpose of deceiving the opposite party. [Cit.]” Butler v. Terminix Intl., 175 Ga. App. 816, 818 (334 SE2d 865) (1985).

The record in this case reveals much discussion between the trial court and counsel during the trial, which makes it clear that as to the claim for fraud, the trial court allowed to go to the jury only that portion of the claim which sought damages for appellant’s alleged misrepresentation regarding the treatment of the wood. While it is true that appellant represented in its warranty that the wood had been “celcure pressure-treated” and that it would “not rot, decay or deteriorate for a period of 20 years from the date of installation of’ the pool, and the wood did not last 20 years, the testimony of appellee’s own expert was that the wood had been treated, but that the one piece of wood which was analyzed was treated inadequately to prevent rotting for a 20-year period. Even construing this evidence in a light most favorable to appellee, the party opposing the motion for a directed verdict, see Ranger Constr. Co. v. Robertshaw &c. Co., 166 Ga. App. 679, 681 (305 SE2d 361) (1983), we find no evidence was presented that appellant knew the wood had not been adequately treated, or that appellant knew the wood would not last for 20 years without rotting.

“In a civil case, ‘[t]he standard of appellate review of the trial court’s denial of a motion for a directed verdict is the “any evidence” standard. [Cit.]’ [Cit.]” Aaron v. Ga. Farm &c. Ins. Co., 186 Ga. App. 1, 2 (366 SE2d 355) (1988). Since there was not any evidence sufficient to support appellee’s fraud claim, the evidence demanded a verdict in favor of appellant on that issue, and the trial court erred by denying appellant’s motions for a directed verdict and judgment n.o.v. See generally First Union Bank of Ga. v. Daniel, 186 Ga. App. 826, 827 (1) (368 SE2d 768) (1988). Accordingly, the judgment awarding actual damages on Count II, the fraud claim, must be reversed.

2. Since appéllee was not entitled to recover actual damages on the tort claim, it follows that neither were exemplary damages recoverable. Punitive damages are not recoverable for breach of contract. OCGA § 13-6-10; Nestle’ Co. v. J. H. Ewing & Sons, 153 Ga. App. 328, 332 (3) (265 SE2d 61) (1980). Accordingly, we must also reverse that portion of the judgment awarding exemplary damages against appellant.

3. Our reversal of that portion of the judgment below awarding exemplary damages and actual damages for fraud against appellant renders unnecessary our consideration of appellant’s remaining enumerations of error.

Decided December 5, 1988 —

Rehearing denied January 3, 1989.

Duane B. Jackson, for appellant.

Joseph Pelt III, for appellee.

4. The jury awarded appellee $3,500 in actual damages against appellant on Count I, breach of contract, and we remand this case to the trial court for entry of judgment in accordance with that portion of the jury’s verdict.

Judgment reversed and case remanded.

Birdsong, C. J., Banke, P. J., Carley, Benham, and Beasley, JJ., concur. Deen, P. J., McMurray, P. J., and Pope, J., dissent.

Deen, Presiding Judge,

dissenting.

I respectfully dissent from the majority opinion as regards the trial court’s denial of appellant’s motions for directed verdict and for judgment notwithstanding the verdict on the fraud count.

The majority correctly recites the appellate court’s duty to construe the evidence on a motion for directed verdict in the light most favorable to the party opposing the motion (appellee here). Also correctly stated is the standard for appellate review of the trial court’s denial of a motion for directed verdict: the “any evidence” standard; i.e., a motion for directed verdict must be denied if there is any evidence supporting the position of the non-movant. OCGA § 9-11-50; Aaron v. Ga. Farm &c. Ins. Co., 186 Ga. App. 1, 2 (366 SE2d 355) (1988). (The standard for a motion for j.n.o.v. is, of course, the same as that for directed verdict. Russell v. State, 155 Ga. App. 555 (271 SE2d 689) (1980)).

As the majority notes, appellee (the non-movant) did present evidence, in the form of expert testimony, that at least a portion of the wood had not been treated as represented in the warranty; the majority finds that this evidence did not conclusively demonstrate scienter on the part of appellant/movant. In my opinion, the majority’s conclusion as to the import of the expert testimony is unwarranted. I believe, therefore, that the trial court acted properly in denying the motion. I therefore respectfully dissent.

I am authorized to state that Presiding Judge McMurray and Judge Pope join in this dissent.