text:
    A89A2005.
    STOLLE CORPORATION v. McMAHON et al.
    (393 SE2d 52)
   Cooper, Judge.

Appellant brought suit against Rockdale Aluminum Company (“Rockdale”) and one of its partners alleging conversion of twenty-one checks made payable jointly to appellant and Rockdale. OCGA § 11-3-419. Rockdale failed to answer the complaint and went into default. Subsequently, appellant added appellee bank as a defendant. Defendant McMahon filed for bankruptcy and the action is stayed as to him. The case was tried before a jury and resulted in a verdict for the bank. Appellant contends on appeal that the trial court erred in denying its motions for directed verdict, judgment notwithstanding the verdict and new trial and in granting appellee’s motion for directed verdict.

Rockdale, an aluminum siding contractor, purchased materials from appellant on credit. Appellant, Rockdale, and several general contractors agreed that on those contracts where Rockdale performed the work and appellant supplied the materials, payment would be made by check to Rockdale and appellant as joint payees for materials and labor. Rockdale accepted the checks and delivered them to the appellant where they were first applied to the cost of materials for the current contract. The proceeds were applied to Rockdale’s past due account balance with appellant. Without appellant’s authorization, Rockdale deposited twenty-one jointly payable checks into its account with appellee. Twenty of the checks bore no endorsement by the appellant. One check was allegedly forged. Appellant seeks to recover from the bank the full value of the checks, specifically $68,237.87, and punitive damages.

At the conclusion of appellant’s case, the trial court granted appellee’s motion for directed verdict as to punitive damages and, at the conclusion of the trial, granted appellant’s motion for directed verdict as to appellee’s liability in accepting the checks for deposit, but denied appellant’s motion regarding the affirmative defenses of commercial reasonableness and appellant’s damages. Following the entry of judgment on the verdict, appellant moved for j.n.o.v. or, in the alternative, a new trial. The trial court ruled that it should have granted the directed verdict on the issue of commercial reasonableness during the trial, however, it denied j.n.o.v. and a new trial finding the evidence sufficient to support the affirmative defense regarding appellant’s damages.

1. Appellant contends in its first enumerated error, that the trial court erred in failing to grant a new trial in view of its ruling that a directed verdict should have been granted as to appellee’s affirmative defense of commercial reasonableness. “[T]he true rule [in determining commercial reasonableness] is whether a reasonable man in accordance with reasonable commercial standards would be put on notice of some impropriety appearing either from the form of the instrument and its endorsements or from knowledge of facts outside the instrument itself.” Trust Co. of Ga. Bank of Savannah v. Port Terminal &c. Co., 153 Ga. App. 735, 740 (266 SE2d 254) (1980). Applying the facts adduced at trial to this standard, the trial court found that the checks were sufficient on their face to alert the bank that they were invalid. Because they were clearly made out to both the appellant and Rockdale, the endorsements of both were required. The court held that the bank’s failure to examine the checks precluded their reliance on commercial reasonableness as a defense, as a matter of law; therefore, the motion for directed verdict on this issue as to the checks which bore no endorsement by appellant should have been granted at the close of all the evidence.

Appellant contends, however, that by allowing the jury to consider commercial reasonableness, the trial court authorized the jury to return a verdict for the bank even if it found for appellant as to its damages. Two possible scenarios explain the verdict in this case. If the jury determined appellant was damaged to the full extent of the face value of the checks and also found the bank’s actions commercially reasonable, then appellant would only recover the amount of the proceeds at the time of trial remaining in the bank, which in this case was nothing. Thornton & Co. v. Gwinnett Bank &c. Co., 151 Ga. App. 641 (4) (260 SE2d 765) (1979). Alternatively, the jury could also have found that appellant did not carry its burden as to damages. When the verdict was published, the foreman stated, “We, the jury, find for the defendant. . . .” It is impossible to determine from that pronouncement whether the jury concluded that the bank’s actions were reasonable or that appellant sustained no damages. We conclude, therefore, that the trial court erred in allowing the jury to consider the issue of commercial reasonableness as to the checks which bore no endorsement by appellant and that appellant is entitled to a new trial.

The trial court did not specifically address the forged check in its ruling, and we find it requires separate treatment. The evidence demonstrates that the bank did not examine the check when it was presented for deposit, and we are unable to conclude, as a matter of law, that had the bank done so, it would have discovered endorsements “ ‘so irregular on their face’ as to raise questions as to their validity.” Trust Co. of Ga. Bank of Savannah v. Port Terminal, supra at 740. This court has declined “to adopt a rule which would make the mere failure to check the validity of ostensibly valid endorsements on third party checks commercially unreasonable as a matter of law.” Id. Had the bank examined the check, it would have discovered that the alleged corporate endorsement was hand printed and the endorsement of appellant’s employee was misspelled (“Bonnie Cahoon,” instead of Bonnie Cohoon). These endorsements may not be sufficiently irregular on their face and whether or not they are is a matter for the jury. Thornton & Co. v. Gwinnett Bank &c. Co., supra at 648. Therefore, appellee is not precluded as a matter of law from asserting the defense of commercial reasonableness with regard to this particular check.

2. In view of our holding in Division 1, appellant’s second enumeration of error need not be addressed.

3. In its third enumerated error, appellant contends the trial court erred in not directing a verdict and in not granting a judgment notwithstanding the verdict or new trial as to appellee’s affirmative defense regarding actual damages sustained by appellant. In view of the trial court’s ruling on liability, appellant was presumptively damaged in the full amount of the full value of the checks. The bank could overcome the presumption by demonstrating that despite its mishandling of the checks, the actual proceeds reached the appellant and those proceeds were credited toward Rockdale’s outstanding balance. See Thornton, supra at 646. We find no merit in appellant’s contention that the bank presented no evidence in support of this defense. A review of the record reveals sufficient testimonial and documentary evidence to support a jury finding that appellant received the proceeds and, therefore, sustained no actual damage.

Decided March 15, 1990

Rehearing denied March 30, 1990.

Richard J. Dreger, for appellant.

Arnall, Golden & Gregory, Charles L. Gregory, Karen S. Riddell, for appellees.

A trial court’s ruling on a motion for directed verdict or judgment notwithstanding the verdict shall not be disturbed if supported by “any evidence.” Moreover, in the case of the latter motion, the evidence must be viewed in the light most supportive of the jury’s verdict. United Fed. Savings &c. Assn. v. Connell, 166 Ga. App. 329 (1) (304 SE2d 131) (1983). Applying these standards to the record of this case, we find no error in the court’s denial of appellant’s motions.

4. In view of our ruling in Division 1, appellant’s fourth enumeration of error need not be addressed.

5. Appellant contends in its fifth enumerated error that the trial court erred in granting appellee’s directed verdict as to punitive damages. We disagree. OCGA § 51-12-5 authorizes an award of punitive damages where there are “aggravating circumstances, in either the act or the intention. . . .” “ ‘(O)rdinarily the question of imposition of punitive damages is one for the jury. However, the controlling question ... is whether there was any evidence to support (such an award). . . . Absent wilful misconduct, malice, fraud, wantonness or oppression, there can be no recovery of punitive damages.’ [Cit.]” Alliance Transp. v. Mayer, 165 Ga. App. 344, 345 (301 SE2d 290) (1983). The evidence in this case indicates that the bank’s conduct would not meet any of the criteria listed above. “ ‘Mere negligence, although gross, will not alone authorize the recovery of punitive damages.’ [Cit.]” Id. Accordingly, the trial court did not err in granting a directed verdict on punitive damages.

Judgment reversed in part with direction, affirmed in part.

Deen, P. J., and Birdsong, J., concur.


source: Caselaw Access Project

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

license: Public Domain

text:
    A89A2016, A89A2017.
    ATLANTA OBSTETRICS & GYNECOLOGY GROUP, P.A. et al. v. ABELSON et al.; and vice versa.
    (392 SE2d 916)
   Carley, Chief Judge.

The relevant facts are as follows: In March of 1985, the then 36-year-old Mrs. Jon Abelson and her husband (hereinafter referred to as Plaintiffs) discovered that Mrs. Abelson was pregnant. Throughout the pregnancy, prenatal care was provided by Dr.William Tippins and Atlanta Obstetrics & Gynecology Group, P.A. (hereinafter referred to as Defendants). In October of 1985, Plaintiffs’ daughter was born with Down’s Syndrome. After the birth of their daughter, Plaintiffs filed this medical malpractice action, alleging that Defendants had breached the applicable standard of care by failing to provide advice concerning the increased risks of genetic abnormalities associated with higher maternal age, and by failing to have performed an amniocentesis so as to detect whether the unborn child had Down’s Syndrome. The complaint further alleged that, if an amniocentesis had been performed which showed the unborn child’s Down’s Syndrome, plaintiffs would have opted for an abortion.

After answering, Defendants moved to dismiss the complaint for failure to state a claim. The trial court denied this motion. Thereafter, in the context of Defendants’ motion in limine, the trial court made various rulings as to the damages that Plaintiffs would be entitled to seek. The trial court certified for immediate review its order on the motion in limine and Defendants applied for an interlocutory appeal. The application was granted and, in Case No. A89A2016, Defendants appeal from the trial court’s order on their motion in limine. In Case No. A89A2017, Plaintiffs cross-appeal.

Case No. A89A2016

1. Defendants enumerate as error the denial of their motion to dismiss the complaint for failure to state a claim.

The complaint purports to state a claim for “wrongful birth.” As distinguished from a “wrongful pregnancy” claim, a “wrongful birth” claim is asserted by plaintiffs who wished to become parents, but who were not apprised that their child would be born with a foreseeable birth defect or other congenital ailment. See Fulton-DeKalb Hosp. Auth. v. Graves, 252 Ga. 441 (314 SE2d 653) (1984). In those states wherein the legislature has not acted, “most courts . . . have been more receptive to the parents’ wrongful birth claims, after the Supreme Court’s legalization of abortion in 1973, and there is by now quite general agreement that the parents should be permitted to recover at least their pecuniary losses. . . .” Prosser & Keeton on Torts, § 55, p. 371 (5th ed. 1984). The judicial recognition of the viability of a “wrongful birth” claim has not, however, been universal. See Azzolino v. Dingfelder, 337 SE2d 528 (N.C. 1985); Wilson v. Kuenzi, 751 SW2d 741 (Mo. 1988). Georgia has previously recognized the viability of a “wrongful pregnancy” claim. Fulton-DeKalb Hosp. Auth. v. Graves, supra. However, neither the legislature nor the appellate courts of this State has previously addressed the issue of the viability of a “wrongful birth” claim. Accordingly, the determination of whether the trial court correctly denied Defendants’ motion to dismiss the complaint for failure to state a claim presents an issue of first impression, and we must decide whether or not Georgia subscribes to the “general agreement” that a “wrongful birth” claim is viable.

In addressing the issue of the viability of a “wrongful pregnancy” claim, our Supreme Court noted that “[t]he United States Supreme Court. . . has recognized that a woman has the right to plan the size of her family. ... It has been suggested that recognition of a [‘wrongful pregnancy’] cause of action would open the door to fraudulent claims, that the injury is remote from the negligence, that recovery would be out of proportion to the defendant’s culpability. But these same arguments have been made in connection with countless other tort claims, and the problems presented have been dealt with in the course of traditional tort litigation. [Cit.]” Fulton-DeKalb Hosp. Auth. v. Graves, supra at 442-443 (1). In addressing the issue of the viability of a “wrongful birth” claim, at least one court has suggested that the problems presented by such a claim cannot be dealt with in the course of traditional tort litigation. See Azzolino v. Dingfelder, supra. Therefore, we perceive the resolution of the issue to be dependent upon whether a “wrongful birth” claim can be said to be within the parameters of traditional Georgia tort principles, as is true with a “wrongful pregnancy” claim, or whether a “wrongful birth” claim, unlike a “wrongful pregnancy” claim, falls outside the parameters of those traditional principles.

The traditional tort elements of duty and breach present no difficulties. As in any malpractice action, the standard of care owed by a physician to prospective parents and a deviation therefrom must be established by medical experts. Accordingly, recognizing the viability of a “wrongful birth” claim will “not require a physician to identify and disclose every chance, no matter how remote, of the occurrence of every possible birth ‘defect,’ no matter how insignificant. [Cit.]” Smith v. Cote, 513 A2d 341, 347 (N.H. 1986). It is presumed that medical services have been performed in an ordinarily skillful manner but, if expert medical testimony can be adduced to establish that it is a deviation from the standard of care and skill ordinarily employed by the medical profession generally to fail to test for, diagnose, and disclose to prospective parents the possible existence of a specific birth defect in their child, then malpractice as defined by OCGA § 51-1-27 would have been shown. Indeed, a refusal to recognize the existence of an actionable breach of a physician’s duty in the face of such medical evidence would itself constitute a deviation from traditional tort principles. Any further contention that the instant “wrongful birth” claim is premised upon Defendants’ alleged breach of a duty merely to secure the Plaintiffs’ informed consent, which duty was not imposed upon physicians under Georgia law at the times relevant to this case, is without merit. Defendants’ non-disclosure “did not relate to any affirmative treatment, but rather to the condition of pregnancy itself.” Karlsons v. Guerinot, 394 NYS2d 933, 939 (N.Y. App. Div. 1977). Had Defendants actually performed an amniocentesis without disclosing to Plaintiffs the specific risks, if any, of undergoing that procedure, that non-disclosure might have constituted Defendants’ non-actionable failure to have secured Plaintiffs’ informed consent. However, Defendants’ failure to have disclosed the risks of not undergoing amniocentesis as an element of prenatal care afforded to Plaintiffs, if otherwise shown to have been negligent under the existing circumstances, would constitute actionable malpractice under OCGA § 51-1-27.

Defendants urge that a “wrongful birth” claim is outside the parameters of traditional tort principles because the birth of a child is not a legally cognizable “injury.” See Azzolino v. Dingfelder, supra. The birth of Plaintiffs’ daughter is clearly not, in and of itself, an injury to them. See Fulton-DeKalb Hosp. Auth. v. Graves, supra. Indeed, it would be anomalous to hold that the birth of a child would not constitute an injury to parents who had undertaken to prevent conception, but that it would constitute an injury to parents who were desirous of having a child. However, the mother in Graves could allege that she had been economically injured by the unplanned birth only to the extent of incurring those ordinary child-raising expenses which would be incurred by any parent. Plaintiffs, on the other hand, allege no injury by virtue of incurring the ordinary expenses of rearing their planned child but, rather, an economic injury to the extent of incurring the extraordinary child-rearing expenses resulting from her foreseeable birth defect. Thus, unlike the mother in Graves, Plaintiffs do not allege that the birth of their child is, in and of itself, an economic injury to them. They “allege, at a minimum, that but for [Defendants’] negligence they would not be burdened by extraordinary medical and education expenses associated with the treatment of [Down’s Syndrome]. That monetary burden is no different from medical or rehabilitation expenses associated with any personal injury, and, contrary to Azzolino’s suggestion, we need not find that ‘life, even life with severe defects,’ constitutes a legal injury in order to recognize [Plaintiffs’] claim for relief.” Lininger v. Eisenbaum, 764 P2d 1202, 1206 (Colo. 1988).

Defendants further urge that the traditional element of causation cannot be proven because it cannot be shown that they either caused or prevented the cure of Down’s Syndrome in Plaintiffs’ child. See Wilson v. Kuenzi, supra. However, it is not alleged that Defendants negligently caused Down’s Syndrome in Plaintiffs’ child. It is alleged that Defendants negligently failed to disclose to Plaintiffs the risks of not undergoing amniocentesis so as to diagnose Down’s Syndrome in the unborn child and that, but for that negligent failure, Plaintiffs would not have been injured by incurring the extraordinary expenses of rearing a Down’s Syndrome child. It is true that, notwithstanding Defendants’ alleged negligence, Plaintiffs would still have incurred those extraordinary expenses had an abortion not been performed. While recognizing the existence of moral, ethical and religious arguments which can be marshalled against abortion, the judiciary is nevertheless also bound to recognize that, within certain limitations, the right to seek an abortion currently exists as a matter of constitutional law. Accordingly, if Plaintiffs can show that, but for Defendants’ alleged negligence, an amniocentesis could and would have been performed so as to determine Down’s Syndrome and that a legal abortion subsequently could and would have been obtained, the causation element will have been satisfied. See Smith v. Cote, supra at 347; Proffitt v. Bartolo, 412 NW2d 232 (Mich. App. 1987). To the extent that Plaintiffs cannot show that a legal abortion could and would have been obtained, the causation element will not have been satisfied, because the tort of “wrongful birth” is viable only to the extent that abortion is an allowable legal option which the injured Plaintiffs would have exercised. Proffitt v. Bartolo, supra at 238.

Likewise, the element of damages does not present an insurmountable hurdle to recognition of a “wrongful birth” claim. “[Difficulty in calculating damages is not a sufficient reason to deny recovery to an injured party. [Cit.] Other courts have recognized that the complexity of the damages calculation in a wrongful birth case is not directly relevant to the validity of the asserted cause of action. [Cit.]” Smith v. Cote, supra at 347-348.

Accordingly, we hold that, like a “wrongful pregnancy” claim, a “wrongful birth” claim is within the parameters of traditional Georgia tort principles. “Such an action is no more than a species of malpractice which allows recovery from a tortfeasor in the presence of an injury caused by intentional or negligent conduct.” Fulton-DeKalb Hosp. Auth. v. Graves, supra at 443 (1). It follows that the trial court did not err in denying Defendants’ motion to dismiss the complaint for failure to state a claim.

2. On Defendants’ motion in limine, the trial court held that the extraordinary expenses of raising Plaintiffs’s Down’s Syndrome child were recoverable. Defendants enumerate this ruling as error.

Because the birth of a child, in and of itself, is not an injury to the parents, the Supreme Court in Graves held that ordinary child-rearing expenses are not recoverable in a “wrongful pregnancy” case. However, the Supreme Court expressly stated that Graves was “not one of those cases which involves foreseeability of the possible birth of a child with a birth defect or other congenital defect. Therefore, we cannot reach the issue of measure of damages in such a case.” Fulton-DeKalb Hosp. Auth. v. Graves, supra, 442. Accordingly, we do not construe Graves as authority for the proposition that extraordinary child-rearing expenses are not recoverable in a “wrongful birth” case. “The reasons for denying the costs of rearing a . . . child [without foreseeable birth defects resulting from a physician’s negligence] should not prevent the parents of an abnormal child [with such a foreseeable birth defect] from recovering expenses reasonably necessary for the care and treatment of their child’s . . . impairment.” Goldberg v. Ruskin, 471 NE2d 530, 536 (Ill. App. 1984). See also Fassoulas v. Ramey, 450 S2d 822, 824 (4) (Fla. 1984). “A special rule of damages has emerged; in most jurisdictions the parents may recover only the extraordinary medical and educational costs attributable to the birth defects. [Cit.] In the present case, in accordance with the rule prevailing elsewhere, [Plaintiffs seek] to recover, as tangible losses, only [their] extraordinary costs. . . . Although the extraordinary costs rule departs from traditional principles of tort damages, it is neither illogical nor unprecedented. The rule represents an application in a tort context of the expectancy rule of damages employed in breach of contracts cases. Wrongful birth plaintiffs typically desire a child (and plan to support it) from the outset. [Cit.] It is the defendants’ duty to help them achieve this goal. When the plaintiffs’ expectations are frustrated by the defendants’ negligence, the extraordinary costs rule ‘merely attempts to put plaintiffs in the position they expected to be in with defendant’s help.’ [Cit.]. . . . We note . . . that contract principles are hardly unknown in medical malpractice litigation, which has roots in contract as well as in tort. [Cits.] In light of the difficulty posed by tort damages principles in these circumstances, we see no obstacle — logical or otherwise — to use of the extraordinary costs rule. [Cit.]” (Emphasis in original.) Smith v. Cote, supra at 349.

Accordingly, we hold that the plaintiffs in a “wrongful birth” case may recover the extraordinary medical and education costs attributable to their child’s foreseeable birth defect, that is, the cost of supporting a child with such a defect reduced by the cost of rearing a child without such a defect. See Smith v. Cote, supra; Phillips v. United States, 575 FSupp. 1309, 1317 (D.S.C. 1983).

3. The trial court also ruled that Plaintiffs could recover extraordinary child-rearing expenses for the entire life expectancy of the child. Defendants urge that this ruling is erroneous.

The tort of “wrongful birth” is committed against the parents, not the child. Accordingly, it is Plaintiffs’ obligation to provide support for their child, not their child’s need for support, that is the relevant benchmark. The parental obligation to support is dependent not only upon the life expectancy of the child but, also, upon the life expectancy of Plaintiffs themselves. To the extent that the child can be expected to outlive Plaintiffs, she would have no right of support from them. To the extent that Plaintiffs can be expected to outlive their child, they would have no obligation to support her. Accordingly, it is only to the extent that the life expectancy of the child coincides with the life expectancies of Plaintiffs that a parental obligation to support can be said to exist. It necessarily follows that it is that coincidental period of time, not merely the life expectancy of Plaintiffs’ child, that establishes the extent of Defendants’ liability for extraordinary child-rearing expenses. The trial court erred in ruling otherwise.

Defendants urge that in no event should they be liable for extraordinary child-rearing expenses past the eighteenth birthday of Plaintiffs’ child. It is true that the parental obligation to support a child generally ends at the child’s eighteenth birthday. There is, however, an exception. A parental obligation to support exists if the adult child is completely destitute. See OCGA § 36-12-3; Citizens & Southern Nat. Bank v. Cook, 182 Ga. 240 (185 SE 318) (1936). Accordingly, to the extent that Plaintiffs can prove that the coincidental period of their and their child’s life expectancies is in excess of eighteen years and that their child’s Down’s Syndrome is such that she will otherwise become a completely destitute adult, they will be entitled to recover extraordinary child-rearing expenses for that coincidental period.

4. The trial court failed to hold that the benefit derived from the society and comfort provided by Plaintiffs’ child should be set-off against any recoverable extraordinary child-rearing expenses. Defendants urge that the trial court erred in failing to hold that such a set-off should be made.

In Graves, the Supreme Court held that such a set-off would have no bearing upon the determination of whether ordinary child-rearing expenses should be recovered in a “wrongful pregnancy” case. “This approach has been criticized because the benefit rule . . . contemplates a benefit to the same interest of plaintiff which was harmed. Since injury generally claimed is economic, the benefit of love and companionship arguably does not go to the same interest. [Cit.] We agree that the economic consequences attendant to the birth and rearing of a child are burdens which differ in species from the benefits which flow from joys a child brings to a family. Use of the offset provided by the benefit rule appears to be an attempt to apply the theory of consequential damages and consequential benefits to human life and parenthood. We are not willing to impose such a theory in this area of delicate human relations.” (Emphasis supplied.) Fulton-DeKalb Hosp. Auth. v. Graves, supra at 444 (3). By the same token, such a set-off should have no bearing in a “wrongful birth” case wherein it is compensation for the economic injury of extraordinary child-rearing expenses that is being claimed. Accordingly, the trial court did not err in failing to hold that the emotional benefits derived by Plaintiffs from their child should be set-off against any recoverable extraordinary child-rearing expenses.

5. The trial court correctly denied Defendants’ motion to dismiss the complaint. The trial court also correctly denied Defendants’ motion in limine as to the recoverability of extraordinary child-rearing expenses without a set-off, but erred in denying the motion in limine as to the recoverability of such expenses for the entire life expectancy of Plaintiffs’ child.

Case No. A89A2017

6. Defendants have moved to dismiss this cross-appeal by Plaintiffs. However, an appeal which has been properly taken from an interlocutory order, such as Defendants’ main appeal, has the same procedural status and dignity as an appeal from a final judgment. Lawrence v. Whittle, 146 Ga. App. 686, 687 (2) (247 SE2d 212) (1978). It follows that Plaintiffs clearly have the right to pursue a cross-appeal pursuant to OCGA § 5-6-38 (a). The motion to dismiss is, therefore, denied.

7. The trial court granted Defendants’ motion in limine as to Plaintiffs’ recovery of damages for their mental and emotional distress. Urging that they are entitled to recover such damages in a “wrongful birth” action, Plaintiffs’ enumerate this ruling as error.

Plaintiff’s claim for mental and emotional distress was properly denied on the basis of the “impact” rule. See Ob-Gyn Assoc. of Albany v. Littleton, 259 Ga. 663 (386 SE2d 146) (1989). It is true that, unlike Littleton, the instant case “arises from a child’s birth, not a child’s injury or death. Nonetheless, we are struck by the parallels between the claims for emotional distress in [Littleton] and the claim before us. Moreover, we are mindful of the anomaly that would result were we to treat parental emotional distress as compensable. The negligent conduct at issue in [cases such as Littleton is] the direct cause of injuries to or the death of otherwise healthy children. By contrast, in wrongful birth cases the defendant’s conduct results, not in injuries or death, but in the birth of an unavoidably impaired child. It would be curious, to say the least, to impose liability for parental distress in the latter but not the former cases. ... We hold that damages for emotional distress are not recoverable in wrongful birth actions. [Cits.]” Smith v. Cote, supra at 351.

To the extent that Plaintiffs’ claims for emotional distress can be construed to arise from the pregnancy and delivery rather than the actual birth of their child, the trial court likewise correctly granted Defendants’ motion in limine. Plaintiffs wanted to become parents “and the pregnancy and delivery in connection with [their daughter] were no more difficult than if [she] had been normal.” Moores v. Lucas, 405 S2d 1022, 1026. (Fla. App. 1981).

8. The trial court prohibited the questioning of Defendants’ expert witnesses as to any alleged bias or financial interest resulting from their status as insureds of Defendants’ insurance company. The enumeration of this ruling as error is controlled adversely to Plaintiffs by Thomas v. Newnan Hosp., 185 Ga. App. 764, 766-67 (1) (365 SE2d 859) (1988).

Judgment affirmed in part and reversed in part in Case No. A89A2016. Judgment affirmed in Case No. A89A2017. McMurray, P. J., Pope and Cooper, JJ., concur. Birdsong, J., concurs in the judgment only. Sognier and Beasley, JJ., concur in part and dissent in part.

Deen, P. J., and Banke, P. J., dissent.

Beasley, Judge,

concurring in part and dissenting in part.

Upon reconsideration pursuant to Rule 48, it is necessary to dissent in part.

1. I concur in Division 1 primarily because of the applicability of Fulton-DeKalb Hosp. Auth. v. Graves, 252 Ga. 441 (314 SE2d 653) (1984), and the legislated broadness of OCGA §§ 51-1-27; 9-3-70; and 51-1-6. The rationale of the Supreme Court governs the circumstances here as well. I note that this would be a compensable tort only to parents who would abort.

2. Despite this court’s acceptance of the calculability of damages for the tort in question, the first problem with damages is to identify the nature of recoverable damages in this tort. Defining what the tortfeasor will be liable for, in terms of species of damages, presents difficulty.

Considering the state of the law in Georgia with Fulton-DeKalb Hosp. Auth., supra, in mind, I find no authority in law or logic to allow the award of extraordinary child-rearing expenses. I must dissent from Division 2, and inasmuch as the ruling in Division 4 would then be upon a moot point, I find it necessary to dissent from Division 4 also.

It is true that the Supreme Court expressly noted in Graves’ case that it did not involve “foreseeability of the possible birth of a child with a birth defect or other congenital ailment.” Id. at 442. Such a statement does not imply that extraordinary costs or any other particular species of damages would be legally cognizable. In our determination of whether the so-called “extraordinary costs” are recoverable, we must examine the Supreme Court’s rationale regarding usual child-rearing costs. Its consideration of that aspect of the case as a proposed species of damage when the birth of the child was unwanted mandates the exclusion of “extraordinary” child-rearing costs in this case as well.

To allow such monetary costs, assuming they could be calculated within a legal quantum, they would have to be “ ‘on the ground that human life and the state of parenthood are compensable losses.’ ” With respect to ordinary child-rearing expenses, the Supreme Court adopted this position and the following further reasoning from Cockrum v. Baumgartner, 95 Ill2d 193, 200 (447 NE2d 385, 389), cert. den. sub nom. Raja v. Michael Reese Hosp. & Med. Center, 464 U. S. 846 (104 SC 149, 78 LE2d 139) (1983): “ ‘In a proper hierarchy of values the benefit of life should not be outweighed by the expense of supporting it. Respect for life and the rights proceeding from it are at the heart of our legal system and, broader still, our civilization.’ ” Fulton-DeKalb Hosp., supra at 444. This must relate to all expenses, because the law does not value life based on how much it costs to support it.

The determination that the law should not reach into a realm which requires the measurement of human life value forecloses a facing of the same dilemma when addressing the costs of raising a congenitally imperfect human being. It requires saying that this child, unwanted during the period before birth if defective but now in life and not a fetus, is worth less than a child unwanted altogether during that same correlative period of gestation. Otherwise, what is the distinction between awarding ordinary costs and extraordinary costs? What is the basis or ground or reason for the latter when there is no basis or ground or reason acceptable in Georgia law for the former? Certainly there is an emotional one. Perhaps there is a moral one. There is no doubt that there are humane ones.

In deciding that extraordinary child-raising expenses are recoverable, a ground for the distinction is not articulated. Is it that the value of a Down’s Syndrome child’s life is lesser? It may be lesser to these parents, who would have extinguished it before birth, but that would not be a proper measure under the rationale of the Supreme Court. Besides, we have recognized in the majority opinion that “[t]he birth of Plaintiffs’ daughter is clearly not, in and of itself, an injury to the [the parents].” And yet certain damages arising from the life which follows that non-injury of birth are being allowed.

These parents, and of course no parents, want their child to be congenitally handicapped. It is in human terms a tragic, burdensome and heartbreaking occurrence. But to say that those foreseeable costs which would be over and above the costs of raising a “normal” child should be recoverable even though the negligent defendants were not even remotely connected with the defect giving rise to the extraordinary expenses, defies logic.

That is true unless ordinary costs, too, are recoverable. The reason is that the tort here claimed resulted in a child (with child-rearing expenses) instead of a non-child (with zero child-rearing expenses). The alleged tort did not result in a defective child (with particular defect-related child-rearing expenses) instead of a normal child (with lesser child-rearing expenses).

We have held that the doctors may be held liable for the birth itself, if they proximately caused it. Yet the Supreme Court’s ruling means that they cannot be held liable for the ordinary child-rearing costs, because of the value of human life.

By the same token, they are liable for the birth of Brittany, but not for her Down’s Syndrome. Since the parents cannot recover for ordinary child-rearing expenses, there is no foundation upon which they could recover for extraordinary expenses related to her special condition. “But for” the defendants’ negligence, there would have been no Brittany, no child at all, not a normal child. Reliance on Lininger v. Eisenbaum, 764 P2d 1202, 1206 (Colo. 1988), is weak because unlike Georgia there was no case law in that state holding that ordinary costs are not recoverable. The Supreme Court of Colorado specifically stated: “In this case, the Liningers do not request damages for the costs ordinarily associated with raising a healthy child, and we need not decide whether those costs may be recovered.” Id. at 1207, fn. 8.

Plaintiffs are not seeking ordinary child-rearing expenses, but that may not be bootstrapped into holding that they would therefore be entitled to expenses beyond those. They could not obtain ordinary expenses even if they prayed for such, because of Graves’ case. Ms. Graves did not want any child-rearing expenses in that she did not want any child. The Supreme Court did not find this to be a reason for compensability. No more could the extraordinary expenses be bottomed on the fact that plaintiffs did not want, or were not prepared to accept, the extraordinary expenses of a handicapped child.

I do not agree that “unlike the mother in Graves, Plaintiffs do not allege that the birth of their child is, in and of itself, an economic injury to them.” They must, because they allege that but for the negligence there would have been no child-rearing expenses. Brittany’s affliction with Down’s Syndrome could not be divorced, by due medical care, from her very being and constitution.

The majority refers to its extraordinary expenses allowance as a “special rule of damage.” It is not even complete, as it permits, either arbitrarily or for policy reasons, only extraordinary medical and education costs; no other of what might be labeled extraordinary costs, such as child care beyond what a normal child would need, are included. More importantly, it being a “special rule,” we on this Court have no authority to fashion it, in light of the Graves case.

3. With respect to Division 3, I cannot agree that defendants in this lawsuit involving a now four-year-old child (less than two when suit was filed) can be held liable to the parents for “extraordinary child-rearing expenses” past the child’s eighteenth birthday, which is the age of majority. OCGA § 39-1-1 (a).

In this State, the duty of each parent is “to provide for the maintenance, protection, and education of his [or her] child until the child reaches the age of majority.” OCGA § 19-7-2. See Wilcox v. Wilcox, 242 Ga. 598, 599 (250 SE2d 465) (1978); Crawford v. Kalman, 166 Ga. App. 712, 713 (305 SE2d 442) (1983). As pointed out by the Supreme Court in Crane v. Crane, 225 Ga. 605, 607 (1) (170 SE2d 392) (1969): “There is no exception provided for and this Court cannot make any. The General Assembly might conceivably make an exception as to children who are born mentally ill and remain so beyond majority or who become ill later on in life and remain so after reaching majority.” This has not been done. Compare OCGA § 19-11-43 (2) (Uniform Reciprocal Enforcement of Support Act); Ray v. Ray, 247 Ga. 467, 468 (277 SE2d 495) (1981) (applying Act intrastate).

The only legal obligation beyond that point is imposed by OCGA § 36-12-3, which requires support of any adult “pauper contemplated by Code Section 36-12-2, if [the parent is] sufficiently able.” The latter provides that “[n]o person who is able to maintain himself by labor or who has sufficient means shall be entitled to the benefits of the provision for the poor.” Eighty-odd years ago the Supreme Court recognized that this meant “only those persons . . . who were completely destitute.” Clark v. Walton, 137 Ga. 277, 279 (73 SE 392) (1911); Crane, supra at 607 (2). A person who had a parent “able to support” him or her would not be a “pauper.” Id. at 280.

Both that case and Citizens and Southern Nat. Bank v. Cook, 182 Ga. 240 (185 SE 318) (1936), the case cited by the majority, involved adults and a present duty, if they were paupers, to support them. Neither these cases, nor the statute upon which they are dependent, contemplate a present duty to support a potential adult pauper, when the person is still a child. In order for the statutory duty to arise, the person must in fact be an adult pauper.

Damages may not be remote or speculative. OCGA § 51-12-8. See representative cases at Cobb & Eldridge, Georgia Law of Damages, p. 100, fn. 3. For a jury to determine whether the parents or either of them will have a duty to support Brittany after she is eighteen is just that. There are too many “if’s,” too many unknowns: If either parent is alive, if either parent is able, if Brittany is alive, if Brittany is able, if Brittany has any independent resources, if the then-state of the medical and social sciences cannot enable her, and how long each of the three will be in life and able. I perceive no current obligation or even a certain future obligation imposed by the law for adult-age support which would render such support an “injury” to the parents so that the medical defendants could currently be held liable therefore in damages. The law does not create such a duty, and for the court to fashion one under the circumstances of this case would result in the necessity for a jury to compute remote and speculative damages.

In this regard the trial court did not err.

Insofar as Division 4 of the majority opinion is meant to apply to the damages ruled on in Division 3 as well as those in Division 2, it follows that I dissent from the Division 4 ruling as well, as the question addressed would be moot.

4. I concur in Divisions 5 through 8.

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

Deen, Presiding Judge,

dissenting.

Fulton-DeKalb Hosp. Auth. v. Graves, 252 Ga. 441 (314 SE2d 653) (1984), dealt only with a cause of action for an alleged “wrongful pregnancy.” That case did not deal with a claim for an alleged “wrongful birth.” Whatever else was decided by Graves, it is clear that five out of seven justices agreed on or stated the following at 442, 443, and 444: “An action brought by a child against the parents or physician on the theory that because of his illegitimacy or birth defects he would have been better not born has found almost no support in the law. ... We instinctively recoil from the notion that parents may suffer a compensable injury on the birth of a child. . . . The soundness of a rule denying recovery for the cost of raising a child lies in that, given the values cherished by our society, a parent cannot be said to have suffered an injury in the birth of a child.” (Emphasis supplied.)

Georgia should follow the judicial recognition of the notion of non-viability of any alleged “wrongful birth” claims, as has been adopted in states such as North Carolina and Missouri. See, e.g., Azzolino v. Dingfelder, 337 SE2d 528 (N. C. 1985); Wilson v. Kuenzi, 751 SW2d 741 (Mo. 1988). Acknowledging that the action in the instant case is labeled “wrongful birth,” nevertheless, our state seems to recognize that life is valuable and supports a “rightful birth” or preservation of life position. See and compare Emory Univ. v. Porubiansky, 248 Ga. 391, 393-394 (282 SE2d 903) (1981); Jefferson v. Griffin &c. Hosp. Auth., 247 Ga. 86, 90 (274 SE2d 457) (1981); McAuley v. Wills, 164 Ga. App. 812, 814 (298 SE2d 594), aff'd 251 Ga. 3 (303 SE2d 258) (1983); Peace v. Weisman, 186 Ga. App. 697, 700, 705 (368 SE2d 319) (1988).

Decided March 16, 1990

Rehearing denied March 30, 1990

Alston & Bird, Judson Graves, Bryan A. Vroon, for appellants.

Keenan Law Firm, Don C. Keenan, David S. Bills, for appellees.

Jones, Brown & Brennan, Taylor W. Jones, Myles E. Eastwood, amici curiae.

While defendants’ failure to have disclosed the risks to the parents of not undergoing amniocentesis as an element of prenatal care would otherwise be actionable, under the rule adopted in Azzolino and in Graves, the claim for “wrongful birth” is outside the parameters of traditional tort principles. As there is no “legally cognizable injury,” ergo, it follows there can be no cause of action or recovery. Any duty under the new informed consent laws requiring disclosure of risks was not imposed at times relevant in this case. This point is thus not here considered.

The practice of medicine and the practice of law are generally considered as inexact sciences. See Blount v. Moore, 159 Ga. App. 80 (282 SE2d 720) (1981); Jackson v. Rodriquez, 173 Ga. App. 211 (325 SE2d 857) (1984). To permit a claim or cause of action for a “wrongful birth” would place an onerous burden on the medical profession of giving unlimited and unnamed tests of all kinds and descriptions to prospective mothers, and, in my opinion, would be contrary to (a) statutory law, (b) case law, and (c) public policy of our state. The antithesis of “wrongful birth” is “premature death,” or “rightful death,” and with this new policy espoused in the majority opinion, I cannot agree. The motion to dismiss the complaint for failure to state a claim should have been granted by the trial court; therefore, I must respectfully dissent.

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


author: Cooper, Judge.

text:
    A89A2041.
    LORD JEFF KNITTING COMPANY, INC. v. LACY.
    (393 SE2d 55)
   Cooper, Judge.

Appellee brought suit against appellant, his former employer, to recover unpaid sales commissions. A jury trial resulted in a verdict in favor of appellee for $20,537. Appellant appeals the trial court’s denial of its motion for directed verdict and new trial, and objects to the jury charges given on quantum meruit.

Appellant is a manufacturer of men’s sweaters. Typically, orders for merchandise are placed some months in advance of actual shipment. As goods are shipped, commissions are credited to accounts established for salesmen for this purpose and for the purpose of providing a fund from which salesmen draw to cover expenses between pay periods. There was an agreed upon commission rate of 6 percent for the fall fashion season and 7 percent for the spring season. The commissions at issue were for sales made before appellee left the company.

1. Appellant contends in enumerations of error 1 and 2 that the trial court erred in denying its motions for directed verdict and new trial because appellee failed to prove his entitlement to commissions and to set forth any evidence upon which the jury could base its verdict. We disagree.

A motion for directed verdict “may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a ‘one way’ verdict proper, [directed verdict] should not be awarded. . . . [Cit.]” Wipo, Inc. v. Cook, 187 Ga. App. 7, 8 (369 SE2d 306) (1988).

Appellee testified that at the time he left the company he had $20,073.65 and $813,398.22 in outstanding orders for the fall and spring seasons respectively, for which he had not been paid. Appellant’s own order status sheets for the relevant time periods were introduced and reflected as much. He also alleged appellant committed to ship 90 percent of his orders. The record contains a memo prepared by a company official which illustrated a method to reduce an overdraft in appellee’s account. The memo proposed a shipment rate of 90 percent.

In Wipo, supra, the plaintiff salesman failed to satisfy his burden of proving breach and entitlement to damages. The contract provided that the company must be paid before commissions were due. However, there was no evidence of payment in the record, nor any other evidence to support plaintiff’s contentions. Wipo, supra at 8. In the instant case, appellant did not introduce specific shipping documents; however, when all of the documentary evidence is reviewed, it is apparent that there was a basis of support for the verdict and that the jury would have been able to “estimate with reasonable certainty the amount of damages,” not by “speculation, conjecture and guesswork.” Id. at 9. Accordingly, the trial court did not err in denying appellant’s motions.

Decided March 15, 1990

Rehearing denied March 30, 1990

Macey, Wilensky, Cohen, Wittner & Kessler, Mark L. Golder, for appellant.

Furman Smith, Jr., for appellee.

2. Next, it is argued that the trial court erred in charging the jury on quantum meruit. Appellant contends that the existence of an express contract precludes recovery in quantum meruit. While parties may plead in alternative counts, there can be no recovery in quantum meruit where an express contract governs all the claimed rights and responsibilities of the parties. Gilbert v. Powell, 165 Ga. App. 504 (1) (301 SE2d 683) (1983). The work for which appellee sought compensation was performed pursuant to an express agreement and appellee presented no evidence of extra work performed in addition to what the contract contemplated in support of his quantum meruit claim. Gilbert, supra. Accordingly, the trial court erred in charging the jury on quantum meruit and in not directing a verdict on this claim at the close of the evidence. See Brunson v. C. B. A., Inc., 189 Ga. App. 621 (2) (376 SE2d 706) (1988).

Judgment affirmed in part, reversed in part and case remanded.

Deen, P. J., and Birdsong, J., concur.


author: Deen, Presiding Judge. Birdsong, Judge, Pope, Judge,

text:
    A89A2076.
    WATERS v. THE STATE.
    (393 SE2d 280)
   Deen, Presiding Judge.

The appellant, Gloria Waters, was convicted of driving under the influence and no proof of insurance.

On the night of her arrest, Waters had travelled from her home in Alma to enjoy the food and spirits at a Waycross restaurant and bar. Having had too much to drink, she asked another patron to drive her car to his residence where she could sleep it off. Before they got there, however, this substitute driver was arrested for driving under the influence. The arresting officer gave Waters the choice of catching a ride to the police station with them, or staying in the car, and Waters chose the latter. Because of Waters’ speech and the odor of alcohol about her, the police officer warned her not to drive the car. After the officer left, however, Waters drove the car into a driveway, where she was arrested by another police officer who went to the scene after being alerted by the first officer. A word to the wise is sufficient, perhaps, but not to the intoxicated. Held:

1. Waters contends that her arrest was illegal and that the trial court thus erred in not suppressing the evidence obtained pursuant to that arrest. However, police officers are entitled to use information received in radio messages from other police officers as a basis for establishing probable cause. Parker v. State, 161 Ga. App. 37, 39 (288 SE2d 852) (1982). Based on the first police officer’s observations about Waters’ speech and odor of alcohol, the second officer’s receipt of the radio message from the first officer to watch out for a certain vehicle with a driver whom he believed to be intoxicated, the second officer’s finding the car where the first officer said it would be, and the second officer’s seeing the car drive off, the trial court had a substantial basis for finding probable cause for the warrantless arrest. See Newsome v. State, 192 Ga. App. 846 (2) (386 SE2d 887) (1989).

2. Waters also contends that the trial court’s jury charge on blood alcohol contents over .10 percent and .12 percent under OCGA § 40-6-392 (b) (3), (4), where she was formally charged with violating OCGA § 40-6-391 (a) (1), impermissibly shifted the burden of proof and allowed the jury to convict her of an offense different than the one charged. However, the charge on OCGA § 40-6-392 (b) (4) was harmless superfluity, Courson v. State, 184 Ga. App. 793 (363 SE2d 41) (1987), and the charge on OCGA § 40-6-392 (b) (3) was harmless, because Waters admitted in open court that she had drunk too much to drive safely. “ ‘A defendant’s admission in open court is an admission in judicio, and the fact therein stated may be taken as true without further proof. . . . Such judicial admission is conclusive. ... In view of the defendant’s admission of guilt any alleged errors in the charge must be considered as harmless error.’ ” Smith v. State, 150 Ga. App. 498 (258 SE2d 167) (1979).

3. The trial court instructed the jury that the burden of proof rested upon the State, that there was no burden of proof upon the defendant whatever, and later charged: “Now, I’m going to prove you on an affirmative defense. That does not change the burden that is on the state. But this is a defense called justification.” Contrary to Waters’ contention on appeal, that instruction did not indicate that the State did not have the burden of proof on the affirmative defense of justification.

4. This case is not as difficult as made out to be by the dissenting opinions. One simple and dispositive fact in this case was Waters’ admission in open court that she had drunk too much to drive on the night in question. That admission effectively eliminated as an issue whether Waters was a less safe driver at the time because of her aleohol consumption. Waters’ only real hope for acquittal, and the only remaining issue in the case, was her defense of justification. Her only contention on appeal concerning the jury instruction on justification was that it impermissibly placed the burden of proof of this defense on her, but reference to the actual jury charge above clearly shows that the trial court left that burden with the State. Under the circumstances of this case, Waters’ open admission in court that she was too drunk to drive rendered harmless any error in the jury charge regarding proof of this fact. The evidence authorized a rational trier of fact to reject Waters’ defense of justification and find her guilty as charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accordingly, her conviction must be affirmed.

Judgment affirmed.

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

Birdsong, Judge,

dissenting.

Although concurring generally with the majority opinion, I cannot agree with the holdings in Divisions 2 and 3 that the trial court’s charge to the jury was not harmful error.

The record shows that Waters’ sole defense was that she was justified in driving because the car created a danger to herself and others where it was parked. Thus, after preliminary charges on presumption of innocence and burden of proof, the trial court charged: “I charge you that justification as a defense must appear from the evidence and not beyond a reasonable doubt, but by the preponderance of the evidence which is a lesser degree of proof. If this defense is shown by the preponderance of the evidence, it may be the duty of the jury to find the [djefendant not guilty.” (The trial court, however, did not specify who had the burden of showing justification by a preponderance of the evidence, and it is error to place the burden on Waters. State v. Moore, 237 Ga. 269, 270 (227 SE2d 241); Veit v. State, 182 Ga. App. 753, 758 (357 SE2d 113).)

The trial court concluded the charge on justification by reading to the jury OCGA § 16-3-21 (use of force in defense of self or others); § 16-3-23 (use of force in defense of habitation); § 16-3-25 (use of force in defense of property other than a habitation); and § 16-3-25 (entrapment) and instructing, “[a]gain I tell you that we have gone through these code sections to deal with the enumerations in 16-3-20, which says in all other instances which stand upon the same footing of reason and justice as those enumerated in this article.”

While I credit the trial court for attempting to fashion a charge on a difficult subject, this court must measure whether the charge was erroneous, and if so, whether Waters was harmed thereby.

Although I find Waters’ counsel agreed to the reading of all the irrelevant code sections and would not find harmful error on that basis, I cannot judge the effect of the entire confusing and erroneous justification charge on the charge of driving under the influence. See Gerald v. State, 189 Ga. App. 155, 156 (375 SE2d 134).

The entire charge on that offense was the following: “Now, the charges here are [d]riving [u]nder the [i]nfluence of [a]lcohol or drugs; penalties for first and subsequent offenses. A person shall not drive or be in actual physical control of any moving vehicle while: (1) Under the influence of alcohol to the extent that it is less safe for the person to drive.

“Now, I’ll charge you that if a person’s alcohol concentration is at least .10 grams then there is a presumption that that person is driving under the influence of alcohol. But, if the person’s alcohol concentration is 0.12 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended. That is the charge that was made against her as to driving under the influence. That she violated that.”

Of course, Waters was not charged with having an alcohol concentration in excess of .12 within three hours after driving in violation of OCGA § 40-6-391 (a) (4). She was charged only with violating OCGA § 40-6-391 (a) (1). Therefore, as this court has long recognized, no charge of § 40-6-391 (a) (4) or § 40-6-392 (b) (4) should have been given. See, e.g., Peters v. State, 175 Ga. App. 463, 466-468 (333 SE2d 436). Further, the charge was incomplete, confusing, and could only serve to mislead the jury to believe that Waters could be convicted by showing she had a blood alcohol concentration in excess of .12 grams or more within three hours after driving.

The relevant superior court pattern charges state the jury may infer that the defendant was under the influence of alcohol; the charge as given in this case stated there is a presumption the defendant was under the influence of alcohol. Webster’s New World Dictionary defines “infer” as a suggestion or hint. “Presume” is defined as to accept as true; thus, we have a major difference in the pattern charge: infer (suggest or hint) and the charge given, presume (accept as true). See also Powell v. State, 187 Ga. App. 878, 880 (372 SE2d 234). The difference is so great that it simply cannot be deemed harmless.

Further, the charge that Waters was presumed to be driving under the influence of alcohol is constitutionally flawed. Sandstrom v. Montana, 442 U. S. 510, 517 (99 SC 2450, 61 LE2d 39); Francis v. Franklin, 471 U. S. 307 (105 SC 1965, 85 LE2d 344); Wilson v. Zant, 249 Ga. 373, 382 (290 SE2d 442); Simon v. State, 182 Ga. App. 210, 212-213 (355 SE2d 120) (concurring opinion); Peters v. State, supra; Stewart v. State, 176 Ga. App. 148 (335 SE2d 603).

As there is no dispute that Waters’ blood alcohol concentration exceeded .10, the charge was the equivalent of directing a verdict against her. See Williams v. Kemp, 255 Ga. 380, 382-386 (338 SE2d 669); Lewis v. State, 180 Ga. App. 890 (351 SE2d 100). It created a mandatory presumption (compare Worth v. State, 179 Ga. App. 207, 209-210 (346 SE2d 82)) and the error was compounded because it did not even advise the jury that the presumption was rebuttable. See White v. State, 255 Ga. 731, 732 (342 SE2d 304); Williams v. Kemp, supra at 380-382.

Although the majority finds that the error was harmless because Waters admitted she “had drunk too much,” that misses the issue in this case. Of course, Waters admitted that she thought she had consumed too much to drive safely. Her defense was not that she had not consumed too much, but that she was justified in driving regardless of her blood alcohol concentration. Therefore, it is meaningless to say that the evidence showing she had too much to drink shows these errors were harmless. That conclusion could only be true if this court were to decide as a matter of law that one can never be justified in driving while under the influence — a conclusion even the prosecutor in this case rejected. Further, contrary to the majority’s contention, Waters did not admit that she was guilty. See Pendergrass v. State, 245 Ga. 626, 627 (266 SE2d 225); Robinson v. State, 232 Ga. 123, 126 (205 SE2d 210).

The evidence showed that Waters’ car was parked on the side of the street, and the evidence was that Waters drove to the next cross street, turned onto it, and parked in a driveway. This evidence and Waters’ testimony that she was afraid to leave the car where it was and only moved the car to avoid a possible collision, plainly raised the issue of justification. Accordingly, Waters was entitled to a charge on justification under OCGA § 16-3-20 (6) and if the jury, under appropriate instruction, found the State had not proved beyond a reasonable doubt that Waters’ driving was not justified, she was entitled to be acquitted regardless of her blood alcohol concentration.

Moreover, Division 3 of the majority opinion misses the issue presented in the charge on justification. Even disregarding the confusion caused by reading all the unrelated code sections, the charge on justification is defective because it placed the burden on someone to show the defense by a preponderance of the evidence, and it charged the jury that “it may be the duty of the jury to find the [defendant not guilty” even when the defense was established.

This charge taken with the erroneous charge on the “presumption” authorized the jury to construe the charge reasonably (see Wilson v. Jones, 251 Ga. 23 (302 SE2d 546)) as directing them to find Waters guilty even if they believed she proved the defense by a preponderance of the evidence. In effect, it directed a guilty verdict based solely on Waters’ blood alcohol concentration (see Hosch v. State, 246 Ga. 417, 420-421 (271 SE2d 817), because it removed from the State the requirement of proving beyond a reasonable doubt that her driving was not justified. Compare Wilson v. Jones, supra).

Since the errors in the charge are constitutional, the proper test is whether the court can conclude beyond a reasonable doubt that there was no reasonable possibility the charging errors might have contributed to Waters’ conviction of driving under the influence, i.e., did not influence the jury’s deliberations. See Vaughn v. State, 248 Ga. 127, 131-132 (281 SE2d 594).

In Lewis v. State, supra, this court applied a two-step analysis to determine whether this kind of error was harmful: (1) did the charge involve an issue the jury had to decide and (2) did the charge invade the jury’s province so that it would have to be said that the court rather than the jury decided the case. Since the answers to both questions are obviously yes, I must dissent from the conclusion that these errors were harmless.

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

Pope, Judge,

dissenting.

I agree with the dissent that the charge here was so fatally flawed that the judgment must be reversed, but write separately to make a few additional points on the justification charge (Division 3).

Firstly, it appears that this is a case of first impression as to whether a justification defense can be used as a defense to a driving under the influence charge. Moreover, even if there are circumstances in which the facts raise such a defense, I am not convinced by my reading of the record that a charge on justification was warranted here. See OCGA § 16-3-20 (6). Although defendant testified that she was afraid to stay in the car alone at night and that she feared the car would be hit, Officer Gibson testified that he offered to give defendant a ride to the station, but that she declined. Furthermore, the record shows that the court’s charge to the jury on proving the defense of justification “by a preponderance of the evidence” was, except for the substitution of one word, requested by the defendant. “[I]nduced error cannot be complained of on appeal. [Cit.]” Griffith v. State, 188 Ga. App. 789, 790 (374 SE2d 359) (1988). Nevertheless, I agree with the dissent that the charge here, when taken as a whole, and especially in light of the erroneous charge allowing the jury to presume the defendant’s guilt, was so confusing and misleading on the dispositive issues of this case that reversal is mandated.

Decided March 16, 1990

Rehearing denied March 30, 1990

James A. Yancey, Jr., for appellant.

Douglas L. Gibson, Solicitor, for appellee.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A89A2225.
    SPENCE v. CITIZENS & SOUTHERN NATIONAL BANK.
    (393 SE2d 1)
   McMurray, Presiding Judge.

Albert L. Spence, Jr. (plaintiff) sued The Citizens & Southern National Bank (defendant), as the executor of the Estate of Ernest C. Kessler, to recover for personal injuries he allegedly sustained when the “mezzanine” floor of a building owned by the Kessler estate “collapsed.” Defendant denied the material allegations of the complaint and filed a motion for summary judgment. In support of this motion, defendant relied on the affidavit of Janey Cooley, “the Administrative Officer . . . responsible for the management of [the Kessler] Estate . . . ,” and plaintiff’s deposition.

On July 1, 1983, plaintiff’s employer, Coastal Supply Company, Inc. (“Coastal”), leased the building from defendant for use in its heating and air conditioning business. The lease agreement placed the burden of building repair and maintenance upon Coastal and provided Coastal’s acceptance of the leased premises “in their present condition. . . .”

The leased premises included a “three or four thousand square . . .” foot storage warehouse with “about [an] eighteen or twenty foot ceiling. . . .” Suspended about eight feet from the concrete floor and surrounding most of the warehouse interior perimeter wall was a wood “mezzanine.” The “mezzanine” was constructed with “2x4” framing and it had a “pressboard” floor. A wood stairwell provided access to the “mezzanine.”

Coastal used the “mezzanine” for light storage and, as part of his work duties, plaintiff regularly traversed the “mezzanine” to store and retrieve parts. Plaintiff became aware that the “mezzanine” was defectively constructed as he “could feel the [pressboard] floor give when [he] walked across it.” Plaintiff informed his employer on several occasions that the “mezzanine” floor was “flimsy” and that it needed to be “fixed.” In fact, plaintiff warned that “someone was going to get hurt if the floor wasn’t fixed.” Nonetheless, the “mezzanine” was not reinforced and on February 26, 1986, plaintiff was injured when he fell through the “pressboard” floor after retrieving parts for his employer.

“Upon full consideration of the entire record,” the trial court granted defendant’s motion for summary judgment, finding “that Plaintiff was abundantly aware of the defective condition of the floor of the mezzanine, and that his knowledge of that condition was actually superior to Defendant’s knowledge of the condition.” This appeal followed: Held:

1. A landlord’s liability to third persons who are lawfully on leased premises is set out in OCGA § 44-7-14. This Code section provides as follows: “Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.”

In applying OCGA § 44-7-14, the Supreme Court recently restated that “[t]he liability of a landlord for defective construction exists only in cases where the structure is built by him in person or under his supervision or direction. If a building were defectively constructed by a predecessor in title, and the landlord knew or by the exercise of reasonable diligence could have known of its improper construction before the tenancy was created, he would be answerable to the tenant, or to any one lawfully on the premises by invitation of the tenant, for injuries sustained by reason of his failure to put the premises in a safe condition, if the person sustaining the injuries could not have avoided the same by the exercise of ordinary care. (Emphasis supplied.) Ross v. Jackson, 123 Ga. 657, 659 (51 SE 578) (1905).” Flagler Co. v. Savage, 258 Ga. 335, 337 (2) (368 SE2d 504).

In the case sub judice, Janey Cooley admitted in the affidavit relied upon by defendant that the “mezzanine” was “in place at the time [defendant] leased the building to [Coastal].” This evidence is sufficient to raise genuine issues of material fact as to defendant’s knowledge of the allegedly defective “mezzanine.” “Ordinarily, the landlord will be chargeable with notice of conditions which existed prior to the time that the tenant takes possession.” Restatement of the Law, Second, Property 2d, § 17.6, Comment (c).

This brings us to the question of whether evidence of plaintiff’s knowledge of the “flimsy” floor bars his recovery. “The fact that the tenant or another on leased property with his permission is aware of the dangerous condition of the leased property does not in and of itself mean that [the landlord’s statutory duty to inspect and repair unsafe rental property is] inapplicable. . . . The landlord remains subject to liability to the tenant or to others on the leased property with the tenant’s consent, but he has available all the usual defenses to an action in negligence, including contributory negligence and assumption of risk. . . .” Restatement of the Law, Second, Property 2d, § 17.6, Comment (b). See Thompson v. Crownover, 259 Ga. 126, 129 (5) (381 SE2d 283). It therefore follows that in the case sub judice the trial court erred in granting defendant’s motion for summary judgment as genuine issues of material fact remain as to defendant’s knowledge of the alleged defect which caused plaintiff’s injuries or whether defendant failed to exercise ordinary and reasonable care in discovering the defect. Genuine issues of material fact also remain as to plaintiff’s knowledge of the alleged defect, i.e., whether plaintiff appreciated the risk associated with walking on the “mezzanine,” and, if so, whether he assumed the risk, acting negligently in traversing the “pressboard” floor.

2. Defendant argues that provisions of the lease contract which place the duty of maintenance and repair primarily with the tenant relieve it of liability to third persons for the allegedly defective maintenance and construction of the “mezzanine” floor. This argument is without merit. Lease contract provisions which relieve “the defendant landlord of the obligation to keep the premises in repair, [are not] effective as against third persons lawfully on the premises, even if the tenant knew of the defective condition. Birdsey v. Greene, 176 Ga. 688 (168 SE 564) (1933).” Flagler Co. v. Savage, 258 Ga. 335, 337 (2), supra.

Decided February 26, 1990

Rehearing denied March 30, 1990

Ray B. Burruss, Jr., Joseph C. Iannazzone, for appellant.

Bentley, Karesh, Seacrest, Labovitz & Campbell, Gary L. Seacrest, Karsten Bicknese, for appellee.

Judgment reversed.

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

Beasley, Judge,

dissenting.

This case involves a mezzanine or balcony which was not constructed by the landlord which the landlord did not possess or control the use of.

The deposition shows without dispute that plaintiff had knowledge of the defect through repeated daily use for two years and that he appreciated the danger it posed. He himself said this, and that he complained about the condition and warned his employer that someone would be injured if the weakness in the floor was not corrected. He walked as lightly as he could, but he weighed about 240 pounds.

Considering the entire record, it is conclusive that plaintiff had at least equal, if not superior, knowledge of the claimed defect and its hazardous nature.

The “if” pointed to by the Supreme Court in Flagler Co. v. Savage, 258 Ga. 335, 337 (368 SE2d 504) (1988), quoting from Ross v. Jackson, 123 Ga. 657, 659 (51 SE 578) (1905), is not present in this case. Plaintiff cannot recover because he “could . . . have avoided the [injury] by the exercise of ordinary care.”

I am authorized to state that Presiding Judge Deen and Judge Birdsong join in this dissent.

       The record shows that plaintiff only informed his employer of the poorly constructed “mezzanine.” Janey Cooley stated in the affidavit relied upon by defendant that defendant never “received any notice from anybody, at any time, either written or oral, of any kind of defect or maintenance problem with respect to the mezzanine level located in that building.”

       The Restatement of the Law, Second, Property 2d, § 17.6, Comment (g), p. 234, provides that “[i]nsofar as an implied warranty of habitability is concerned, no position is taken as to whether the rule [of a landlord’s liability for physical harm caused by a dangerous condition existing before or arising after the tenant has taken possession] applies to property leased for commercial purposes. . . .” In Georgia, a landlord’s duty to lease premises which are safe enough to withstand the intended and ordinary use is not implied, it is prescribed under OCGA § 44-7-14 and this Code section does not distinguish a landlord’s duty with regard to the rental of commercial property from these duties associated with the rental of residential property.

       In Crownover, Justice Hunt points out in a special concurrence that the tenant’s awareness of the alleged defect would normally have cut off the landlord’s liability, but that the “rule of necessity,” i.e., what was the tenant’s option for use of the defective space heater, was an excuse for submitting the case to the finder of fact. Such “case by case” analysis has traditionally been the rule for determining whether genuine issues of material fact remain as to a landlord’s liability. See Thompson v. Crownover, 186 Ga. App. 633, 640 (2) (368 SE2d 170). Now, it appears that circumstances such as the landlord’s knowledge of defective conditions (intentional or negligent failure to repair), the tenant’s or the invited third parties’ knowledge and appreciation of dangerous conditions on leased premises and “necessity” will be factors reserved solely for the finders of fact. Thompson v. Crownover, 259 Ga. 126, supra.


author: Beasley, Judge. Carley, Chief Judge,

text:
    A89A2267.
    BROADFOOT et al. v. AARON RENTS, INC. et al. CITIZENS & SOUTHERN NATIONAL BANK v. BROADFOOT et al. AARON RENTS, INC. v. BROADFOOT et al.
    A89A2268.
    A89A2269.
    (393 SE2d 39)
   Beasley, Judge.

Appellant Broadfoot, as trustee in bankruptcy for La Privilege, Inc. d/b/a Pierre’s Rue de Paris, Pierre Merlot and Marie Merlot, sued Aaron Rents, Inc., Abco Builders, Inc. (Abco), C. Philip Richards, Harwell S. Huggins, M. William Breman and Citizens & Southern National Bank (C & S) for the 1985 collapse of brick veneer from several stories of a building’s east wall onto the premises the Merlots rented for their restaurant business.

Appellee Abco was the original general contractor of the building, which was constructed during the period 1963 to 1965 from a design provided by the owners, who are not party to the suit. In 1965, at foreclosure, a partnership composed of appellees Breman, Richards, and Huggins bought the shell building from the lender, C & S, and Abco completed it for them. (Bremen was the principal in Breman Steel Company, which provided the steel for the original construction and some for later work. Richards and Huggins were principals in Abco.) The partners abandoned the building to C & S in 1976, and C & S sold it to Aaron Rents in 1978.

Brick veneer problems on one section of the east wall arose during construction and in 1966, 1971, 1974 and 1977. In 1974 Abco was hired to correct certain problems in the east wall but had no further involvement with the building after performing that work. The wall partially collapsed in 1985 and severely damaged the Merlots’ restaurant, which immediately closed and eventually bankrupted.

The complaint alleged that all defendants breached their respective duties by negligently failing to discover and to correct an inherent defect in the brick veneer of the wall. The alleged deficiencies were the lack of horizontal expansion joints below the shelf angles, as being necessary to relieve vertical expansion pressure, and the lack of brick ties. Plaintiffs sought business and credit reputation damages, damages for pain and suffering, punitive damages, and attorney fees.

At the close of the plaintiffs’ liability case all defendants moved for directed verdict. The trial court granted directed verdicts on all causes in favor of contractor Abco and intermediate owners Breman, Richards and Huggins. It also directed verdicts in favor of current owner Aaron Rents and mortgagee/intermediate owner C & S on punitive damages, attorney fees, the Merlots’ damages individually for mental anxiety, and damage to their credit. Plaintiffs moved to voluntarily dismiss their case against Aaron Rents and C & S, and an order was entered effecting dismissal pursuant to OCGA § 9-11-54 (b). A renewal suit against these two is pending.

After the plaintiffs appealed, Aaron Rents filed a motion in the trial court to dismiss the appeal, which was denied. Aaron Rents then moved to dismiss the appeal in this court (case no. A89A2267), which is granted as to it and as to C & S. It appears that appellants have voluntarily dismissed suit as to defendants-appellees Aaron Rents, Inc., and Citizens & Southern National Bank, making any appeal as to these two defendants moot. OCGA § 5-6-48 (b) (3); Strickland v. Adams, 231 Ga. 729, 730 (204 SE2d 294) (1974); Franklin v. Shackelford, 174 Ga. App. 520 (330 SE2d 449) (1985).

The dismissal renders moot the cross-appeal filed by C & S (case no. A89A2268) and Aaron Rents (case no. A89A2269) from the denial of their motions for directed verdict.

The instant appeal thus involves only the judgments directing verdicts in favor of contractor Abco and intermediate owners Breman, Richards and Huggins.

1. The trial court granted Abco’s motion for directed verdict on the basis of its defense of the “statute of repose,” OCGA § 9-3-51 (a). It provides that “[n]o action to recover damages: (1) [f]or any deficiency in the survey or plat, planning, design, specifications, supervision or observation of construction, or construction of an improvement to real property; [or for] injury to property, real or personal, arising out of any such deficiency . . . shall be brought against any person performing or furnishing the survey or plat, design, planning, supervision or observation of construction, or construction of such an improvement more than eight years after substantial completion of such an improvement.” (Indention omitted.) Appellants contend that the alleged acts and omissions for which Abco is liable do not constitute construction of an improvement to real property under this Code section. Since there was no evidence that Abco had any involvement with the building after 1974, the only question is whether their work was an “improvement to real property” as contemplated by OCGA § 9-3-51 (a).

The Supreme Court considered this question in Mullis v. Southern Co. Svcs., 250 Ga. 90, 94 (4) (296 SE2d 579) (1982), stating: “Several factors [are] important to a commonsense analysis of what constitutes an improvement to real property. These factors are (1) is the improvement permanent in nature; (2) does it add to the value of the realty, for the purposes for which it was intended to be used; (3) was it intended by the contracting parties that the ‘improvement’ in question be an improvement to real property or did they intend for it to remain personalty. [Cits.]”

Appellants argue that an improvement to real property generally involves either original installation or construction allowing new or additional use of the real property, as opposed to repair or replacement or maintenance work. An improvement as contemplated by the statute denotes a fixed alteration to real estate, as distinguished from personalty. See Turner v. Marable-Pirkle, 238 Ga. 517, 519 (233 SE2d 773) (1977). As the Court in Mullis, supra, reasoned, “[t]he issue is whether a component of a system which is definitely an improvement to real property is an improvement to real property itself.” The work Abco contracted to do in 1974 was to install horizontal expansion joints in the brick veneer, which was a structural change in design adding a new component, rather than a repair or restoration of the wall to its original condition. Whether or not Abco’s performance of the work was effective goes to its quality, not its character.

The evidence was undisputed that the work done was intended to prolong the life of the brick veneer, to improve the performance of the wall, and to change the original design. Thus, the Mullis standards were met so as to apply the statute of repose. Because more than eight years had passed at the time the wall collapsed, the trial court properly directed a verdict in Abco’s favor.

2. Since there were no allegations of bodily injury, appellants’ case against the intermediate owners Breman, Richards and Huggins is barred by the statute of limitation for damage to real property, OCGA § 9-3-30, and damage to personalty, OCGA § 9-3-31. Both expire four years after the cause of action accrues. The Supreme Court has recently ruled that “[a]n action under OCGA § 9-3-30 must be brought within four years of substantial completion.” Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366 (1) (368 SE2d 732) (1988).

The last work complained of was performed in 1974. Breman, Richards and Huggins had not owned the building for almost nine years before the brick veneer fell in 1985, and they were not made parties to the lawsuit until 1986. They, too, were entitled to directed verdicts. Miles Ins. &c. Co. v. Gilstrap, 187 Ga. App. 858 (1) (371 SE2d 672) (1988).

Appeal dismissed in Case No. A89A2267. Judgments affirmed in Case Nos. A89A2268 and A89A2269.

Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier and Cooper, JJ., concur. Carley, C. J., and Pope, J., concur in part and dissent in part.

Carley, Chief Judge,

concurring in part and dissenting in part.

In Case No. A89A2267, I concur in the majority’s affirmance of the grant of a directed verdict in favor of appellee-defendants Abco, Breman, Richards and Huggins. It is my opinion, however, that the majority incorrectly dismisses that main appeal as against appelleedefendants Aaron Rents, Inc. (Aaron) and Citizens & Southern National Bank (C & S) and that the majority consequently errs by dismissing Case Nos. A89A2268 and A89A2269 as mooted cross-appeals. I must, therefore, respectfully dissent to the majority’s failure to address the merits of all the issues that, in my opinion, have been properly raised in these three appeals.

Hambrick v. Fidelity Acceptance Corp., 159 Ga. App. 540 (284 SE2d 53) (1981) is factually and procedurally indistinguishable. The trial court in the instant case granted directed verdicts in favor of Aaron and C & S as to their liability for some but not all of the elements of damage that appellant-plaintiff was seeking to recover against them. Because they became immediately effective, these rulings were not obviated or negated by appellant’s subsequent voluntary dismissal of the case as against Aaron and C & S. That subsequent voluntary dismissal went only to Aaron’s and C & S’s asserted liability for the remaining elements of damage. Accordingly, the trial court’s previous grants of directed verdicts in favor of Aaron and C & S are viable and extant rulings and the subsequent voluntary dismissal as to the remaining issues should not be construed as rendering moot appellant’s instant appeal from those previous rulings. “In the case sub judice a refiling of the action predicated upon those issues which were voluntarily dismissed will provide a foundation upon which a claim for punitive [and other] damages might rest. However, the trial court’s direction of the verdict [s] in favor of [Aaron and C & S] in the case sub judice would stand as res judicata and be a bar to possible recovery on these additional damages in a subsequent action. Therefore, any error in the decision of the trial court which this court failed to correct would present irreparable harm to [appellant].” Hambrick v. Fidelity &c. Corp., supra at 543 (2).

Decided March 14, 1990

Rehearing denied March 30, 1990

Hurt, Richardson, Garner, Todd & Cadenhead, A. Paul Cadenhead, Homer A. Houchins, Jr., C. Michael Johnson, Kenneth L. Karlberg, for Broadfoot.

Greene, Buckley, DeRieux & Jones, John D. Jones, Francis C. Schenck, for Aaron Rents.

Fortson & White, Bruce H. Beerman, Beth H. Paradies, for C & S National Bank.

Because the subsequent voluntary dismissal did not affect the efficacy of the trial court’s previous grant of directed verdicts in favor of Aaron and C & S, the majority’s dismissal of appellant’s appeal is tantamount to an affirmance of those rulings without regard to whether or not they may be erroneous. As the result of the majority’s decision, those rulings will now become res judicata and a bar to appellant’s recovery of certain elements of damage despite his present proper attempt to secure an appellate review of his entitlement to recover those damages. I must respectfully dissent to what I perceive to be the majority’s erroneous denial of appellant’s only opportunity to seek to secure a reversal of the grant of the directed verdicts in favor of Aaron and C & S.

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