text:
    A89A0269.
    CITIZENS & SOUTHERN TRUST COMPANY et al. v. PHILLIPS PETROLEUM COMPANY, INC. et al.
    (385 SE2d 426)
   Carley, Chief Judge.

On May 29, 1987, appellant-plaintiffs filed suit, seeking to recover for damage to their commercial real property. According to the allegations of the complaint, gasoline had leaked from underground storage tanks located at two nearby service stations, and this gasoline had eventually invaded appellants’ property. Appellee-defendants answered and raised, among their other defenses, the statute of limitation. After a period of discovery, appellees moved for summary judgment. The trial court granted appellees’ motion, holding that the applicable four-year statute of limitation had run on appellants’ claims. Appellants appeal from this grant of summary judgment in favor of appellees.

1. Under the pleadings and evidence of record, only four of the eight appellees were shown to have committed any act or omission or to have maintained any control over the underground storage tanks within the four-year period prior to the filing of appellants’ suit. Those four appellees are Ropet, Inc., Phillips Petroleum Company, Inc. (Phillips), and Mr. and Mrs. William Tyson. It necessarily follows that the trial court was clearly correct in granting summary judgment in favor of the remaining four appellees. “The continuing tort theory ... is limited to cases in which personal injury is involved. It is not applicable to cases which involve only property damage.” Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366 (2) (368 SE2d 732) (1988).

2. The evidence of record shows that the equipment and fixtures at one of the service stations were purchased by appellee Ropet, Inc., in 1981. Appellee Ropet, Inc., then operated the service station until 1985, when the property was purchased by appellees Mr. and Mrs. Tyson. Construing the evidence most favorably for appellants, the underground storage tanks at this service station had leaked intermittently in the past. According to the affidavit of appellants’ expert, those underground tanks leaked again during that period of time when appellee Ropet, Inc., was in control of them. Although the affidavit of appellants’ expert, as originally filed, referred to papers and documents, copies of which were not attached thereto, a supplement to this affidavit, containing copies of the papers and documents, was subsequently filed.

Accordingly, the trial court erred in granting summary judgment in favor of appellee Ropet, Inc., notwithstanding that the statute of limitation may have run on appellants’ claim for the creation of a nuisance or on their claims for any previous intermittent leaks. See Cox v. Cambridge &c. Houses, 239 Ga. 127 (236 SE2d 73) (1977). Construing the evidence most favorably for appellants, they brought a timely claim against appellee Ropet, Inc., for the maintenance of a continuing nuisance. “ ‘This action accrues at the time of such continuance, and against it the statute of limitations runs only from the time of such accrual.’ [Cit.]” City of Columbus v. Myszka, 246 Ga. 571, 572 (2) (272 SE2d 302) (1980).

3. As noted above, the evidence of record shows that appellees Mr. and Mrs. Tyson purchased the service station in 1985. However, the evidence also shows that, upon the purchase of the property by appellees Mr. and Mrs. Tyson, the service station was closed and the underground storage tanks were relined. According to the affidavit of appellee Mr. Tyson, daily “stick readings” were thereafter performed on the relined underground tanks and these readings never reflected the loss of any gasoline. That there was no recurrence of a leak from the underground storage tanks after appellees Mr. and Mrs. Tyson purchased the property and relined the tanks is undisputed. In fact, it is corroborated by the affidavit of appellants’ expert, who averred only that the leaks had occurred intermittently at least until appel-lees Mr. and Mrs. Tyson purchased the property. Accordingly, the trial court did not err in granting summary judgment in favor of ap-pellees Mr. and Mrs. Tyson. The undisputed evidence of record shows that, although they maintained control over the property during the relevant period of time, they did not maintain any nuisance which proximately damaged appellants’ property. “A party is not guilty of an actionable nuisance unless the injurious consequences complained of are the natural and proximate results of his own acts or failure of duty. If such consequences were caused by the acts of others, so operating as to produce the injury, he would not be liable.” Brimberry v. Savannah, Fla. &c. R. Co., 78 Ga. 641 (3 SE 274) (1887).

4. The evidence of record shows that appellee Phillips’ only connection with the underground storage tanks during the relevant four-year period was in its capacity as the supplier of the gasoline which was stored in those tanks. “[Wjhenever . . . gas is supplied with actual knowledge on the part of the one supplying it of the defective and dangerous condition of the customer’s appliances, he is liable for injuries caused by . . . the gas thus supplied for use on such defective and dangerous appliances. . . .” Milligan v. Ga. Power Co., 68 Ga. App. 269, 280 (1) (22 SE2d 662) (1942). Construing the evidence most favorably for appellants, a genuine issue of material fact remains as to the existence of a defective condition in the underground storage tanks because, according to the affidavit of appellants’ expert, gasoline had leaked from the underground storage tanks and invaded appellants’ property within the applicable four-year period. Likewise, a genuine issue of material fact remains as to appellee Phillips’ actual knowledge of a defective condition in the storage tanks. The evidence of record does not demand a finding that appellee Phillips had no actual knowledge that the storage tanks were subject to intermittent leaking. Accordingly, the trial court erred in granting summary judgment as to the issue of appellee Phillips’ liability.

Decided July 13, 1989

Rehearings denied July 27, 1989

Kennedy, Lewis, Smart & Brannon, Don Smart, for appellants.

Carr, Tabb & Pope, W. Pitts Carr, Hunter, Maclean, Exley & Dunn, Molly M. Howard, Wayne S. Racz, Karsman, Brooks, Painter & Callaway, Dana F. Braun, Bouhan, Williams & Levy, Roy E. Paul, Walter C. Hartridge, Susan B. Paul, Eric E. Huber, for appellees.

5. A failure on the part of appellants to produce any probative evidence as to the specific amount of damage they may have suffered is not a viable basis for the grant of summary judgment against them. “The law infers some damage from the invasion of a property right; and if no evidence is given of any particular amount of loss, it declares the right by awarding what it terms ‘nominal damages.’ [Cits.]” Williams v. Harris, 207 Ga. 576, 579 (2) (63 SE2d 386) (1951).

6. For the reasons given in Divisions 2, 4 and 5, it was error to grant summary judgment in favor of appellees Ropet, Inc., and Phillips. For the reasons discussed in Division 3, summary judgment was correctly granted in favor of appellees Mr. and Mrs. Tyson. As to the remaining appellees, summary judgment was correctly granted for the reason discussed in Division 1.

Judgment affirmed in part and reversed in part.

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


source: Caselaw Access Project

author: Carley, Chief Judge.

license: Public Domain

text:
    A89A0278.
    POULOS et al. v. HOME FEDERAL SAVINGS & LOAN ASSOCIATION et al.
    (385 SE2d 135)
   Carley, Chief Judge.

Appellant-plaintiffs brought this action, alleging a variety of claims arising from their purchase of certain townhouses. On the morning of trial, the parties reached an oral settlement agreement and this agreement was dictated into the record. However, appellants subsequently moved to have their case against appellee-defendants reset for trial, contending that the oral settlement agreement was unenforceable. The trial court denied the motion, finding that the parties’ oral settlement agreement was a valid and binding contract. Appellants appeal from the order of the trial court upholding the settlement agreement and refusing to reset the case for trial.

1. That the settlement agreement was oral rather than written has no bearing on its enforceability. “ ‘Under Georgia law, “(a) definite, certain and unambiguous oral contract of settlement of a pending cause of action is a valid and binding agreement. . . .” [Cits.]’ [Cit.]” Mason v. Rabun Waste, 174 Ga. App. 462, 463 (1) (330 SE2d 400) (1985).

2. As to appellee Brewer, the settlement agreement provided, in relevant part, that he was to bear the cost of making certain repairs to appellants’ townhouses, which repair work would be approved by a designated engineer, Charles Sharitz. The agreement further provided only that the repairs were to be performed by a contractor who was “mutually agreeable to the parties” and who would then be approved by Sharitz. There was no agreement expressed as to whether appellee Brewer or appellants would pay Sharitz’s fees.

As noted previously, an oral settlement agreement must be definite, certain and unambiguous. Mason v. Rabun Waste, supra. “For such an agreement to be binding on the parties it should be clear that it is full and complete, covers all issues, and is understood by all litigants concerned.” (Emphasis supplied.) Cross v. Cook, 147 Ga. App. 695 (1) (250 SE2d 28) (1978). “The consent of the parties being essential to a contract, until each has assented to all the terms, there is no binding contract; until assented to, each party may withdraw his bid or proposition.” (Emphasis supplied.) OCGA § 13-3-2.

The oral settlement agreement provided only that the repairs to appellants’ townhouses were to be made by a “mutually agreeable” contractor who would then be approved by Sharitz. “Mutually agreeable” is an entirely subjective standard and the agreement did not otherwise provide any objective criteria for the selection of a contractor. Under the agreement, appellee Brewer could reject any and all contractors who might be nominated by appellants or appellants could reject any and all contractors who might be nominated by appellee Brewer and, in neither event, would such a rejection be considered an actionable breach of contract. Either appellee Brewer or appellants would be entitled to assert that the other’s nominated contractor was simply not an “agreeable” selection and there would be no legal basis for enforcing the selection of that contractor as against the non-nominating party. See generally Stone Mtn. Properties v. Helmer, 139 Ga. App. 865, 867-868 (1) (229 SE2d 779) (1976); Gray v. Aiken, 205 Ga. 649, 651 (1) (54 SE2d 587) (1949). “ ‘[I]f the offer is in any case so indefinite as to make it impossible for a court to decide just what it means, and to fix exactly the legal liability of the parties, its acceptance can not result in an enforceable agreement. . . .’ [Cit.]” Weill v. Brown, 197 Ga. 328, 332 (29 SE2d 54) (1944). “ ‘The rule as to certainty is, that the agreement must be so certain and complete that each party may have an action on it.’ [Cits.]” Wells v. H. W. Lay & Co., 78 Ga. App. 364, 368 (2) (50 SE2d 755) (1948). It is clear that, as to the selection of a contractor, the terms of the oral settlement agreement do not evidence the requisite degree of certainty, but show only the agreement of appellee Brewer and appellants that they would, at some future point, come to a mutually agreeable selection of a contractor. “ ‘If there was in fact any essential part of the contract upon which the minds of the parties had not met, or upon which there was not an agreement, even [though] the negotiations evidenced a complete willingness, or even an announced determination, to agree in the future upon such issues as might subsequently arise, it must still follow that a valid and binding contract was not made as of the earlier date.’ [Cit.] ‘Unless all the terms and conditions are agreed on, and nothing is left to future negotiations, a contract to enter into a contract in the future is of no effect.’ [Cits.] ‘An agreement to reach an agreement is a contradiction in terms and imposes no obligation on the parties thereto.’ [Cit.]” Wells v. H. W. Lay & Co., supra at 367 (1).

Even though Sharitz’s participation in the proposed repair work was clearly essential to the settlement agreement, the agreement likewise did not specify who was to pay his fees for that participation. “A contract is an agreement between two or more parties for the doing or not doing of some specified thing.” (Emphasis supplied.) OCGA § 13-1-1. “ ‘Specify’ means, ‘to mention or name in a specific or explicit manner; to tell or state precisely or in detail.’ [Cit.]” Gray v. Aiken, supra at 652 (1). This failure of the agreement to specify whether Sharitz’ fees were to be paid by appellee Brewer or appellants renders the settlement agreement indefinite and unenforceable. The record clearly shows that appellee Brewer and appellants anticipated future negotiations as to this issue and that no mutual agreement was ever reached.

Since the oral settlement agreement was uncertain, incomplete and unenforceable with regard to the selection of a contractor and the payment of Sharitz’s fees, the trial court erred in upholding the settlement agreement as against appellee Brewer and erred, therefore, in refusing to reset the case for trial as against him.

3. Appellants’ settlement with appellees Home Federal Savings & Loan Association (Home Federal) and Mews Development Company (Mews) was separate from their settlement with appellee Brewer. Unlike appellants’ release of appellee Brewer, the release of appellees Home Federal and Mews was not subject to any future negotiations as to terms. Instead, the record shows that, as to these two appellees, there was no uncertainty or indefiniteness as to their release and that appellants agreed to the immediate and unequivocal dismissal of the case as against them. Accordingly, the trial court did not err in upholding the settlement agreement as against appellees Home Federal and Mews and, therefore, did not err in refusing to reset the case for trial as against them.

Decided July 13, 1989

Rehearing denied July 27, 1989

Higgins & Dubner, Michael W. Higgins, Timothy A. Bumann, for appellants.

Hyatt & Rhodes, Frederick D. Evans III, Hishon & Ranney, Robert H. Hishon, Hugh M. Worsham, Jr., King, Morriss, Talansky & Witcher, Joseph H. King, Jr., James W. Lewis, C. Gerald Henderson, for appellees.

4. The order of the trial court is affirmed as to appellees Home Federal and Mews. The order of the trial court is reversed as to ap-pellee Brewer, with direction that the trial court take such further action as may be necessary to effectuate this opinion, including the determination of what portion of any sums previously paid to appellants by appellee Brewer in partial consideration of the unenforceable settlement agreement must now be returned to him. See Fender v. Hendley, 196 Ga. 512, 514-515 (26 SE2d 887) (1943).

Judgment affirmed in part and reversed in part with direction.

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


author: McMurray, Presiding Judge.

text:
    A89A0461.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. BROWN.
    (385 SE2d 87)
   McMurray, Presiding Judge.

Charlie Max Brown .(plaintiff) brought an action against Georgia Farm Bureau Mutual Insurance Company (“Georgia Farm Bureau”), seeking to recover for the loss of a house that was allegedly destroyed by fire and allegedly covered under a “farmowners policy” of insurance, issued to plaintiff by Georgia Farm Bureau. Georgia Farm Bureau answered and admitted that it insured a dwelling house located “at Route #3, Eastman, [Dodge County,] Georgia” and that this house was damaged by fire on March 28, 1986, but denied that the property was totally destroyed by fire and denied that plaintiff owned the house at the time of the fire. The case was tried before a jury and the evidence revealed the following:

Plaintiff resided in an “old house” that was owned by his grandparents and was situated on a 30-acre parcel of land in Dodge County, Georgia. After plaintiff’s grandparents died, he inherited the 30-acre tract of land and, in December 1985, plaintiff moved with his wife and stepdaughter to a house which was formerly occupied by his grandparents and is located next to the “old house.”

On February 3, 1986, plaintiff renewed a Georgia Farm Bureau “farmowners policy” of insurance which had covered the “old house” since before plaintiff’s grandparents’ deaths. The policy was made effective from February 3,1986, through February 3,1987. On February 19, 1986, plaintiff executed a warranty deed in favor of his half-brother, Joseph M. Hobbs, conveying 29 acres of the land plaintiff inherited from his grandparents. (This purported transfer included the “old house” which plaintiff formerly occupied.) The deed was filed for record in the Superior Court of Dodge County on the same day it was executed. On March 7, 1986, Hobbs executed a deed, re-conveying the land to plaintiff. On March 28, 1986, the “old house” was destroyed by fire. Plaintiff filed a claim with Georgia Farm Bureau for the loss and, after an investigation, Georgia Farm Bureau denied coverage under its policy.

At the close of the evidence, the parties filed opposing motions for directed verdict. These motions were denied and the jury later returned a verdict in plaintiff’s favor for the policy limits, $24,000. Georgia Farm Bureau’s motion for judgment notwithstanding the verdict was denied; this appeal followed and, in four enumerations of error, Georgia Farm Bureau contends the trial court erred in denying its motion for judgment notwithstanding the verdict.

“The standard for granting a directed verdict or a judgment notwithstanding the verdict are the same. Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed. OCGA § 9-11-50 (Code Ann. § 81A-150). In reviewing grant of a directed verdict or a judgment notwithstanding the verdict, we must decide whether all the evidence demanded it, or whether there was some evidence supporting the verdict of the jury. Bryant v. Colvin, 160 Ga. App. 442 (287 SE2d 238) (1981). A judgment notwithstanding the verdict is improperly granted in the face of conflicting evidence, and an appellate court must view the evidence in the light most favorable to the party who secured the jury verdict.” Pendley v. Pendley, 251 Ga. 30 (1), 31 (302 SE2d 554). It is from this perspective that we view the evidence upon consideration of Georgia Farm Bureau’s enumerations of error. Held:

1. In its enumerations of error, Georgia Farm Bureau contends the “trial court erred in denying Georgia Farm Bureau’s motion for judgment notwithstanding the verdict because the insurance contract provided no coverage as a matter of law, and because plaintiff failed to prove damages or an insurable interest necessary for recovery in this case. More specifically, the contract was null and void due to a change in interest, title or possession in the premises. Further, the contract was suspended at the time of the fire because plaintiff left the premises unoccupied for over sixty consecutive days before the incident. In addition, plaintiff failed to carry his burden to prove damages or that he had an insurable interest, absolute prerequisites to recovery under the law.”

The evidence authorized a finding that plaintiff conveyed the insured property to Hobbs in an attempt to protect the property from his creditors. Further, plaintiff testified that he consulted with an attorney to perfect this transaction; that the attorney was to prepare two warranty deeds, one conveying the insured property from plaintiff to Hobbs and another conveying the insured property from Hobbs to plaintiff and that these instruments were to be executed in a simultaneous transaction. Plaintiff also testified that when he executed the deed conveying the insured property to Hobbs the deed of reconveyance was not available and that it was not executed by Hobbs until March 1986. Plaintiff went on to explain that he never intended to transfer ownership of the property to Hobbs and, plaintiff’s other testimony indicated that he never relinquished possession or control of the property to Hobbs. In fact, Hobbs testified that plaintiff owned the insured property on the date of the fire and that he never considered himself to be the owner of the property.

“A provision in a policy of fire insurance which declared that ‘This entire policy . . . shall be void ... if any change . . . takes place in the interest, title, or possession of the subject of insurance . . ., was not violated, so as to void the policy, by the execution of a deed by the insured purporting to convey the property to another, where the grantee, as a part of the same transaction, reconveyed the property to the insured; it appearing from uncontradicted evidence that neither party intended to enter a contract of sale and purchase, the possession remaining with the insured, and the whole transaction being merely a sham and device to prevent the institution of a proceeding for alimony on the part of the wife of the insured.” Home Ins. Co. of N. Y. v. Johnson, 181 Ga. 139 (182 SE 41).

In the case sub judice, the evidence authorized a finding that plaintiff executed the warranty deed for the insured property to Hobbs contemplating Hobbs’ immediate reconveyance of the property to plaintiff; that Hobbs did reconvey the property to plaintiff before the fire; that neither party intended to enter into a contract for the sale and purchase of the insured property; that plaintiff remained in control and possession of the insured property and that the whole transaction was merely a sham and a device to prevent plaintiff’s creditor’s from reaching the insured property. Under these circumstances, we find that plaintiff’s execution of the warranty deed in favor of Hobbs was not a completed sale which triggered the change of title or interest provision of the policy. Home Ins. Co. of N. Y. v. Johnson, 181 Ga. 139, 142, supra. See 4A Appleman, Ins. Law & Practice 332, 336, § 2742. Consequently, the trial court did not err in denying Georgia Farm Bureau’s motion for judgment notwithstanding the verdict on this ground.

2. Next, Georgia Farm Bureau contends “[p]laintiff’s claim under the [insurance] contract is barred because the premises were unoccupied for over sixty consecutive days before the fire.”

The insurance contract provided, under a section entitled “Conditions suspending or restricting insurance,” that, “[u]nless otherwise provided in writing added hereto[,] this Company shall not be liable for loss occurring . . . while a described building, whether intended for occupancy by owner or tenant, is vacant or unoccupied for a period of sixty consecutive days . . . .” This provision was broadened in a section of the policy entitled, “Vacancy and Unoccupancy,” wherein “ [permission [was] granted for the farm dwelling(s) covered under Coverage A to remain . . . unoccupied for not more than 120 consecutive days . . . .”

The evidence relative to these provisions of the policy authorized findings that the insured property remained “unoccupied” for more than 60 consecutive days before the fire, but not more than 120 consecutive days before the fire. “ ‘Thus we have a situation where one provision of the policy excludes liability and another accepts liability. Every written provision of an insurance contract must be given its apparent meaning and effect. (Cit.) (The provisions currently under consideration) are repugnant to one another. When that occurs in an insurance contract, the provision most favorable to the insured will be applied. (Cit.)’ Welch v. Gulf Ins. Co., 126 Ga. App. 115, 117 (190 SE2d 101) (1972). Accord Cotton States Mut. Ins. Co. v. Crosby, 149 Ga. App. 450 (254 SE2d 485) (1979), rev’d on other grounds, 244 Ga. 456 (260 SE2d 860) (1979).” United States Fire Ins. v. Hilde, 172 Ga. App. 161, 163 (2), 164 (322 SE2d 285).

In the case sub judice, the provision most favorable to plaintiff allows an insured dwelling to remain “unoccupied” for at least 120 consecutive days before coverage is suspended. Consequently, since the evidence authorized a finding that the insured property was not “unoccupied” for more than 120 consecutive days before the fire, plaintiff is not “barred” from pressing his claim. See United States Fire Ins. Co. v. Hilde, 172 Ga. App. 161, 163 (2), supra.

3. Georgia Farm Bureau further contends that plaintiff failed to prove that the insured house was “wholly destroyed by fire,” thus justifying recovery for the policy limits under OCGA § 33-32-5 (a). This Code section provides in pertinent part as follows: “Whenever any policy of insurance is issued to a natural person or persons insuring a specifically described one or two family residential building or structure located in this state against loss by fire and the building or structure is wholly destroyed by fire without fraudulent or criminal fault on the part of the insured or one acting in his behalf, the amount of insurance set forth in the policy relative to the building or structure shall be taken conclusively to be the value of the property, except to the extent of any depreciation in value occurring between the date of the policy or its renewal and the loss . . . (Emphasis supplied.) Plaintiff’s evidence showing that it would cost more to repair the house than to replace it and photographs submitted into evidence by Georgia Farm Bureau showing that the house was substantially gutted by the fire was sufficient to authorize the jury’s finding that the house was “wholly destroyed by fire” as contemplated by the above statute. See Allstate Ins. Co. v. Baugh, 173 Ga. App. 615, 617 (3) (327 SE2d 576).

Decided June 27, 1989

Rehearing denied July 27, 1989

McKenzie & McPhail, John B. McPhail, Robert T. Ross, Pat Huddleston II, for appellant.

Milton Harrison, for appellee.

4. Lastly, Georgia Farm Bureau contends plaintiff failed to prove that he had an insurable interest in the property at the time of the fire as is required by OCGA § 33-24-4 (b). This contention is without merit.

The evidence shows that plaintiff acquired title to the insured house before it was destroyed by fire and, as was held in Division 1 of this opinion, plaintiff never transferred his interest in the property. See Home Ins. Co. of N. Y. v. Johnson, 181 Ga. 139, supra.

Judgment affirmed.

Carley, C. J., and Beasley J., concur.


text:
    A89A0511.
    ARMSTRONG et al. v. CALIFORNIA FEDERAL SAVINGS & LOAN ASSOCIATION.
    (385 SE2d 113)
   Carley, Chief Judge.

Acting pursuant to the powers contained in deeds to secure debt, appellee-creditor conducted the foreclosure sales of some twenty-five parcels located in a single development. Appellee then sought orders of confirmation pursuant to OCGA § 44-14-161. After conducting a consolidated hearing, the superior court confirmed the sales and appellant-debtors appeal.

1. At the consolidated confirmation hearing, appellee produced a chart which contained information relative to the issue of the fair market value of each parcel. Although the chart was never formally tendered as an exhibit by appellee, the superior court, at the conclusion of the hearing, expressly directed that the chart be submitted to it. In its order confirming the sales, the superior court indicated that it had given evidentiary consideration to this chart and, in giving such consideration to the untendered chart, appellants urge that the superior court erred. However, appellants’ failure to object at the time the superior court directed that the chart be submitted to it constitutes a waiver of the formal tender and admission of the chart into evidence. See Linch v. McNeil Real Estate Fund VI, 146 Ga. App. 505, 507 (1) (246 SE2d 718) (1978).

2. Appellants enumerate the general grounds, urging that the facts as found by the superior court do not support its legal conclusions that confirmation was authorized.

“ ‘In confirmation proceedings, the [superior court] sits as a trier of fact, and [its] findings and conclusions have the effect of a jury verdict. [It] hears the evidence and [its] findings based upon conflicting evidence should not be disturbed by a reviewing court if there is any evidence to support them. [Cits.] What value is, or may have been, is a question of fact to be resolved as others are. In so doing, the [superior] court is the judge of the credibility of the witnesses and of the weight to be given the evidence. [Cits.]’ [Cits.]” Alexander v. Weems, 157 Ga. App. 507, 508 (3) (277 SE2d 793) (1981). “Although [appellants present] a serious challenge to the means by which the creditor’s expert arrived at his opinion as to value, the expert provided the court with the basis for his opinions. [As] it appears that his opinion [was] not based on sheer speculation, an appellate court cannot second guess any methodology utilized to reach the opinion. [Cits.]” Echols v. Edwards, 185 Ga. App. 688, 690 (2) (365 SE2d 844) (1988). “The superior court . . . had sufficient data in evidence upon which [it] could apply [its] own knowledge and ideas so as to derive [its] own opinion as to the market value of the project at the time of the sale.” BPI Constr. Co. v. Collective Fed. Savings &c. Assn., 186 Ga. App. 324, 325 (367 SE2d 269) (1988). There being sufficient competent evidence to support the superior court’s conclusion that, as to each parcel, the price brought at foreclosure was at least the true market of that parcel, the enumeration of the general grounds is without merit.

3. There was evidence that, prior to the institution of the confirmation proceedings, appellee had submitted tax forms to the Internal Revenue Service indicating that the fair market values of the parcels exceeded the amounts realized on the foreclosure sales. Based upon this evidence, appellants enumerate as error the superior court’s failure to conclude that appellee was estopped to assert that the foreclosure sales prices represented at least the true market values of the parcels.

Decided July 11, 1989

Rehearing denied July 27, 1989.

Raiford, Dixon & Thackston, Tyler C. Dixon, Janet Litt, William G. Posey, for appellants.

Alston & Bird, William H. Hughes, Jr., Richard R. Hays, for ap-pellee.

Estoppel was not pled by appellants and, therefore, there is considerable doubt whether that affirmative defense was even a viable issue in the confirmation proceedings. See generally Hansford v. Robinson, 255 Ga. 530 (1) (340 SE2d 614) (1986); Macon Chrysler-Plymouth v. Sentell, 179 Ga. App. 754 (347 SE2d 639) (1986). However, assuming without deciding that it was, “ ‘[w]here the facts relied on to establish the estoppel do not unequivocally show an estoppel in pais, the [trior of fact] should determine whether the facts constitute such an estoppel.’ [Cits.]” Calhoun v. Williamson, 76 Ga. App. 91, 93 (2) (45 SE2d 87) (1947). In the present case, there was no evidence which demanded a finding that any representations made to the Internal Revenue Service were the result of appellee’s intentional deception or gross negligence. “In order for an estoppel to arise, there must generally be some intended deception, or gross negligence amounting to constructive fraud by which another is misled to his injury. [Cit.]” Tybrisa Co. v. Tybeeland, Inc., 220 Ga. 442, 446 (139 SE2d 302) (1964). Likewise, there was no evidence that, as the result of the representations made on the tax forms, appellee secured any advantage or appellants suffered injury. “The doctrine of estoppel does not obtain unless there be injury to one party or advantage to the other, resulting from the acts or declarations of the person to be estopped.” Goodwyn v. Goodwyn, 20 Ga. 600 (9) (1856). Since the evidence did not demand a finding of estoppel, the superior court, sitting as the trior of fact, did not err in failing to resolve that issue in appellants’ favor.

4. Remaining enumerations of error, not otherwise specifically addressed, have been considered and found to be without merit.

Judgments affirmed.

Sognier and Beasley, JJ., concur. McMur-ray, P. J., disqualified.


author: Beasley, Judge.

text:
    A89A0652.
    DEAL v. BUILDERS TRANSPORT, INC.
    (385 SE2d 293)
   Beasley, Judge.

Plaintiff Deal appeals from the grant of summary judgment to Builders Transport, Inc., his former employer, whom he sued for libel and slander. To prevail on summary judgment, a defendant is required to pierce plaintiff’s pleadings and negate an essential element of the complaint, with all evidence construed in favor of the plaintiff. Henderson v. KMSystems, 188 Ga. App. 893, 895 (1) (374 SE2d 550) (1988).

The complaint alleged that the employer through its agent Gene Williams libeled and falsely accused plaintiff of falsifying his application for employment. Williams was the company’s administrative assistant who gave plaintiff the separation notice which provided that he was discharged due to application falsification. This communication and any message about it from Williams to another has been abandoned as the basis of the alleged tort, apparently because of the privilege granted by OCGA § 34-8-11.

In response to the motion for summary judgment, and on appeal, plaintiff contends that Burrill, the terminal manager, libeled and slandered him by answering the question of Pascullis, plaintiff’s training supervisor who asked why plaintiff was no longer driving, “Something was wrong with his application.” This, plaintiff contends, was an unprivileged oral publication of the libel in the document, citing Southland Corp. v. Garren, 138 Ga. App. 246 (225 SE2d 920) (1976), rev’d on other grounds, 237 Ga. 484 (228 SE2d 870) (1976). However, what is complained of now and in response to the motion is not a communication or publication of what was written on the separation notice, but a materially different statement.

Plaintiff also contends on appeal, and contended in responding to the motion, that this same utterance was slander, relying in this regard on the definition in OCGA § 51-5-4 as applied in Kaplan v. Edmondson, 68 Ga. App. 151 (22 SE2d 343) (1942). That case involved two sections of an earlier statute, only one of which is still extant, that being OCGA § 51-5-4 (a) (1).

The communication by Burrill to Pascullis is not what is complained of in the action brought, and thus plaintiff is not entitled to reversal of summary judgment on the complaint. “Every publication of matter which is shown to be libelous is a separate cause of action; and where the plaintiff brings suit for publication at designated places, he can not show publication to other persons at a different time and place, since it would tend to prove a cause of action separate from the one alleged in the petition.” Western Union Tel. Co. v. Vickers, 71 Ga. App. 204, 209 (5) (30 SE2d 440) (1944). Even if the alleged defamation by Burrill was the same as that allegedly made by Williams, which it was not, a republication is still a separate cause of action. “Each publication of [a] libel by different persons constitutes a separate and distinct wrong to the aggrieved party.” Howe v. Bradstreet Co., 135 Ga. 564, 565 (69 SE 1082) (1910); Cole v. Atlanta Gas Light Co., 144 Ga. App. 575 (241 SE2d 462) (1978).

Decided May 3, 1989

Rehearing denied July 27, 1989

Joseph B. Bergen, Frederick S. Bergen, for appellant.

Fisher & Phillips, Griffin B. Bell, Jr., Deborah Craytor, for ap-pellee.

Without even reaching the questions of whether the statement was not defamatory, or actionable, as a matter of law, plaintiff is not entitled to reversal of summary judgment given in defendant’s favor “as to all” of the claim asserted against it. OCGA § 9-11-56 (b).

Judgment affirmed.

Carley, C. J., concurs. McMurray, P. J., concurs in the judgment only.


author: Carley, Chief Judge. Beasley, Judge,

text:
    A89A0089.
    DEBEY et al. v. THE STATE.
    (385 SE2d 694)
   Carley, Chief Judge.

Appellants were found guilty of possession of cocaine and possession of marijuana with intent to distribute. They appeal from the judgments of conviction and sentences that were entered on the guilty verdicts.

In their sole enumeration, appellants urge that their motion tc suppress was erroneously denied by the trial court. The evidence which appellants sought to suppress had been seized pursuant to e search warrant. The affidavit upon which the search warrant was issued recited the following: “On 9/10/87 4:30 p.m. [affiant] received information from C.R.I. who stated that their [sic] was a large amount of marijuana being stored and sold at [an] above describee location. Informant stated that w/m goes by the name Tim and w/i goes by the name Anita or Junaita [Juanita], both subjects will sale [sic] marijuana. Investigation conduct [sic] by Sgt. T. Jones of Easl Point Police Department reveals that [appellant] Timothy Debej lives at the above described address. Informant is familiar with the appearance of marijuana in its growing and dried stages. East Poinl and College Park Police have been conducting and [sic] investigatior on this suspect for four months. This officer feels there is enougl probable cause for issuance of a search warrant of the above describee premises.” Appellants urge that, under the applicable “totality of the circumstances” standard of Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), this affidavit was not sufficient to provide the magistrate with probable cause for issuance of the warrant.

The affidavit may or may not be sufficient under the “totality of the circumstances” standard of Illinois v. Gates, supra. However, even assuming that appellants are correct and that probable cause was not shown by the affidavit, a reversal of the denial of their motion to suppress would not necessarily be mandated. There is the remaining issue of whether the exclusionary rule would or would not be an appropriate sanction to vindicate any purported violation of appellants’ Fourth Amendment rights.

Because the exclusionary rule is designed to deter police misconduct rather than to punish the errors of issuing magistrates, it has been “ ‘modified so as not to bar the admission of evidence seized in reasonable, good-faith reliance [by an officer] on a search warrant that is subsequently held to be defective.’ ” United States v. Leon, 468 U. S. 897, 905 (I) (104 SC 3405, 82 LE2d 677) (1984). “[T]he marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” United States v. Leon, supra at 922 (III C). “It is ,the magistrate’s responsibility to determine whether the officer’s allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment. In the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination or his judgment that the form of the warrant is technically sufficient. ‘(0]nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law.’ [Cit.] Penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” United States v. Leon, supra at 921 (III B). Accordingly, in those cases wherein a search warrant has been sought and issued, the ultimate question of whether evidence should be suppressed is not dependent upon the magistrate’s erroneous determination that the warrant should have issued, but upon the officer’s objective good-faith reliance upon the magistrate’s determination, erroneous though that determination might have been. See Adams v. State, 191 Ga. App. 916 (383 SE2d 378) (1989).

The Supreme Court has enumerated four instances where an officer cannot be said to have had reasonable grounds for believing that the warrant was properly issued and where, therefore, suppression does remain an appropriate remedy. See United States v. Leon, supra at 923 (III C). Of those four enumerated instances, the record shows that only one is relevant to the disposition of the present case. At the outset of the hearing on the motion to suppress, appellants’ counsel eliminated three grounds for possible suppression by stipulating to the truthfulness of what was said in the affidavit, the neutral detachment of the issuing magistrate, and the facial sufficiency of the warrant. Accordingly, suppression would be appropriate in this case only if the officer’s supporting affidavit was “ ‘so lacking in indicia of probable cause as to render [his] official belief in its existence entirely unreasonable.’ [Cits.]” United States v. Leon, supra at 923 (III C). The text of the affidavit of the officer is set forth above and need not be quoted again here. If appellants are correct and probable cause was not sufficiently shown, the affidavit is nevertheless no so deficient as to render the officer’s belief in the existence of probable cause entirely unreasonable. There is simply no basis for holding that the officer, who presumably is neither a lawyer nor a constitutional scholar, failed to act in objective good faith when he relied upon the magistrate’s determination that probable cause was sufficiently shown by the affidavit. The affidavit is certainly no less deficient in its indicia of probable cause than was the affidavit in Adams v. State, supra.

In denying appellants’ motion to suppress, the trial court did not specifically state whether it found probable cause to be shown or whether it found the good-faith exception to the exclusionary rule to be applicable. Thus, the trial court may have based its ruling upon Illinois v. Gates, supra, rather than upon United States v. Leon, supra. Regardless of the trial court’s reasoning, however, its denial of appellant’s motion to suppress should be affirmed. As previously noted, the circumstances and the evidence in this case were such that the only possible rationale for not applying the Leon good-faith exception is that the affidavit of the officer was so inadequate as to render his belief in the existence of probable cause entirely unreasonable. Thus, it is only the affidavit itself, and no other evidence, which would be relevant in determining whether the burden of demonstrating the applicability of the Leon good-faith exception was met by the State. See United States v. Gant, 759 F2d 484, 487-488 (II B) (5th Cir. 1985). The four corners of the affidavit show, as a matter of law, that it was not so lacking in its indicia of probable cause as to render the officer’s belief in the existence of probable cause entirely unreasonable. Accordingly, a finding of the applicability of the Leon good-faith exception would be demanded under the existing circumstances and evidence. It follows that a denial of appellants’ motion was the only correct ruling and that, even if the trial court based its ruling on an erroneous finding of the existence of probable cause, an affirmance would nevertheless be mandated. “When a ruling of the trial court is legally correct, it will be upheld regardless of the reason assigned. [Cits.]” Phillips v. State, 185 Ga. App. 54, 56 (4) (363 SE2d 283) (1987). Accordingly, the denial of appellants’ motion to suppress is affirmed under the Leon good-faith exception to the exclusionary rule.

Judgment affirmed.

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

Beasley, Judge,

dissenting.

The affidavit lacked probable cause and the good faith exception was not invoked by the State.

1. The assertion of invalidity of the search warrant focuses on lack of showing reliability and the basis of informant’s knowledge. Defendant contends that even applying the “totality of circumstances” test of Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), there was insufficient information to justify issuing the search warrant. Defendant also urges that there was no showing that the information supplied by the informant was not stale. Fowler v. State, 121 Ga. App. 22 (172 SE2d 447) (1970).

The affidavit on which the search warrant issued, quoted in the majority opinion, was sworn to before the magistrate at 8:45 p.m. on September 10.

Gates, supra, which was acknowledged as governing by our Supreme Court in State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984), supplanted the interim two-prong test with “totality of the circumstances.” The issuing magistrate’s task is to make a practical, common-sense decision from everything adduced at the hearing, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, that there is a fair probability that contraband or evidence of a crime will be found at the described location.

The reviewing court’s duty is to ensure that the issuing magistrate had a substantial basis for concluding that probable cause existed. As pointed out in Stephens, “ ‘we deal with probabilities [which] are not technical [but are] the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act.’ ” This same test applies to a determination whether information contained in an affidavit is stale. State v. Luck, 252 Ga. 347 (312 SE2d 791) (1984).

The affidavit contains the following facts: 1) the police had received a tip from an informant, whose identity the police did not wish to disclose but who was regarded by them as reliable, that “a large amount of marijuana [was] being stored and sold” at the location; 2) first names of two persons, impliedly at the location, who would sell marijuana; 3) corroboration of the informant’s statement as to the name of one of them; 4) the informant could identify marijuana; 5) there had been a four-month investigation of (presumably) the male as a suspect. There is no explanation of the basis or reasons for either the officer’s opinion as to informant’s familiarity with marijuana or for the on-going investigation. Likewise missing is any substantiation of the officer’s conclusion that “there is enough probable cause for issuance of a search warrant.” Of prime importance is the gap as to how the information about the storage or sale of marijuana was obtained.

Even utilizing a common-sense approach to the validity of the warrant and under the “totality of circumstances,” the warrant was invalid because of the insufficiency of the sworn facts had by the magistrate. There was no disclosure of how the informant obtained the information related and there was nothing to affirm the informant’s reliability. As observed in Felker v. State, 172 Ga. App. 492, 494 (4) (323 SE2d 817) (1984), “many of the cases decided under the Aguilar-Spinelli rule . . . remain helpful in assessing whether an informant’s tip is sufficient to establish probable cause for a search.” At best there were wholly conclusory statements which are inadequate to provide a sufficient basis for the magistrate to independently ascertain the existence of probable cause. Poole v. State, 175 Ga. App. 374 (1) (333 SE2d 207) (1985); Collins v. State, 188 Ga. App. 172, 173 (372 SE2d 503) (1988).

“ ‘Probable cause means less than a certainty but more than mere suspicion or possibility. . . . Mere speculation, rumor, or opinion is not enough; there must be reasonable grounds after inquiry. . . . The officer must place before the magistrate sufficient facts to enable the latter to make his own determination and not merely adopt the conclusions of the police officer.’ ” Kelleher v. State, 185 Ga. App. 774, 777 (1) (365 SE2d 889) (1988), quoting from Yocham v. State, 165 Ga. App. 650, 652 (302 SE2d 390) (1983). See Lewis v. State, 255 Ga. 101, 104 (2) (335 SE2d 560) (1985). To approve the affidavit requires cred-1 ulous acceptance of unverified and nonspecific information.

2. There being no necessity to reach the issue of staleness, the second question is whether the rule fashioned in United States v. Leon, 468 U. S. 897 (104 SC 3405, 82 LE2d 677) (1984), applies.

The Leon principle of a good faith exception to the exclusionary rule is not argued in this case. The State chose instead to rely on the validity of the warrant. Leon, in fashioning the exception, states: “the prosecution should ordinarily be able to establish objective good faith . . . .” (Emphasis supplied.) Supra at 924. Leon does not require the court to initiate an inquiry into whether good faith existed and should be applied so as to save the search despite the lack of probable cause underlying the warrant’s issuance.

Once it appears that the warrant is defective because what was presented to the magistrate was deficient, it is incumbent on the State to show that the good faith exception applies. It was not even raised, below or here. Otherwise the magistrate need not be concerned about probable cause because as long as it exists and can be established later, evidence seized pursuant to it would be admissible. This would completely avoid the magistrate’s “responsibility,” which is described on the quotation from Leon in Adams v. State, 191 Ga. App. 916 (383 SE2d 378) (1989).

Decided July 14, 1989

Rehearing denied July 28, 1989

Glenn Zell, for appellants.

Lewis R. Slaton, District Attorney, Thomas Jones, Nancy A. Grace, Joseph J. Drolet, Assistant District Attorneys, for appellee.

The Supreme Court said in Leon: “[Reviewing courts will not defer to a warrant based on an affidavit that does not ‘provide the magistrate with a substantial basis for determining the existence of probable cause.’ ” Supra at 915.

In Adams, the Leon principle of a good faith exception is made an issue. The majority opinion in Adams does not address all of the categories in which the good faith exception does not apply. Two of them are relevant here: 1) affidavit so lacking in indicia of probable cause so as to render the officer’s belief unreasonable (Leon at 923); 2) affidavit which makes issuance of search warrant look like a rubber stamp of the officer’s application (Leon at 923).

The affidavit in Adams was so inadequate that it could be concluded the experienced officer knew better, i.e., he could not have reasonably relied on the warrant based on it. He must be “objectively reasonable” in his reliance on it for the good faith exception to apply. Leon, supra at 922. The trial court would have been supported had it suppressed the evidence on this basis. But I could not conclude in Adams that as a matter of law the trial court was in error in not fitting the affidavit into this category.

On the other hand, the evidence here would not sustain a finding of good faith. Cf. Evans v. State, 192 Ga. App. 216 (384 SE2d 404) (1989).

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


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

text:
    A89A0281.
    CUTTS v. FULTON-DeKALB HOSPITAL AUTHORITY et al.
    (385 SE2d 436)
   Carley, Chief Judge.

The minor appellant-plaintiff, by next friend, filed suit against appellee-defendants Fulton-DeKalb Hospital Authority (Hospital), Dr. Daly and Dr. Russell. The complaint sought damages for the alleged medical malpractice of appellees Dr. Daly and Dr. Russell occurring during appellant’s delivery at appellee Hospital. The case was tried before a jury but, when a verdict could not be reached, the trial court declared a mistrial. Appellees then moved for judgment notwithstanding mistrial, relying upon the doctrine of charitable immunity. The trial court granted appellees’ motion for judgment notwithstanding the mistrial and appellant appeals from that order.

1. “It has long been the rule in Georgia that ‘an incorporated hospital, primarily maintained as a charitable institution, is not liable for the negligence of its officers and employees, unless it fails to exercise ordinary care in the selection of competent officers and servants, or fails to exercise ordinary care in retaining such officers and employees.’ [Cit.]” Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833, 834 (1) (353 SE2d 515) (1987). There is, however, an exception to the doctrine of charitable immunity. “Where a patient in such an institution is not the recipient of its charity, but is able to pay and does pay for the services, and is injured on account of carelessness, negligence, or incompetence of an officer or employee of the institution, the corporation is liable therefor. . . .” Morton v. Savannah Hosp., 148 Ga. 438 (5) (96 SE 887) (1918). The undisputed evidence of record shows that appellant was the recipient of appellee Hospital’s charity and that the doctrine of charitable immunity is, therefore, viable and controlling as to appellee Hospital.

It is undisputed that the “out-patient” medical expenses of appellant’s mother were in excess of $100. Based upon her financial situation, however, appellee Hospital agreed to charge her only $7 for these services. Accordingly, in providing these services to appellant’s mother, appellee Hospital extended its charity to the extent of at least $93. It is also undisputed that the “in-patient” medical expenses of both appellant and her mother were $997.52. Although a bill for these services was never submitted, it is undisputed that appellee Hospital’s maximum charge to appellant for those services would be $30. Accordingly, as to the “in-patient” medical expenses, appellee Hospital extended its charity to the extent of at least $967.52. There was no evidence that the $93 and the $967.52 was paid or payable from any secondary source and was not charitably absorbed by appel-lee Hospital. This case was not decided on summary judgment, but after a jury trial. Compare Patterson v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 167 (384 SE2d 205) (1989). After appellee Hospital produced evidence that it had extended its charity to appellant, the burden shifted to appellant to produce evidence showing that she came within the exception to the charitable immunity doctrine and that, contrary to the evidence showing appellee Hospital’s agreement to bill only $37 for the more than $1,100 in medical services rendered to her and her mother, she was nevertheless a “paying patient” with a secondary source for paying the balance. Because the undisputed evidence of record discloses that, based upon the financial situation of appellant’s mother, appellee Hospital did extend its charity to the extent of more than $1,000, the trial court correctly granted judgment notwithstanding mistrial in favor of appellee Hospital.

2. Appellee Hospital has not waived its charitable immunity by creating a self-insurance plan. See Ponder v. Fulton-DeKalb Hosp. Auth., supra at 835 (2). Appellant’s attempts to distinguish Ponder have been considered and found to be without merit.

3. Appellant urges that the doctrine of charitable immunity was erroneously extended to appellees Dr. Daly and Dr. Russell.

Appellees Dr. Daly and Dr. Russell had a duty to exercise a reasonable degree of care and skill in providing medical services to appellant. See OCGA § 51-1-27. Insulating them from liability for breaching this duty simply because they were employed by a charitable hospital would not further the purpose of the charitable immunity doctrine. “By design the charitable immunity doctrine protects the funds of the charitable institution from depletion in order that these funds may be [preserved] to carry out the charitable purpose of the institution for the benefit of its beneficiaries.” (Emphasis supplied.) Ponder v. Fulton-DeKalb Hosp. Auth., supra at 834 (1). To extend the doctrine of charitable immunity to physicians who are employed by charitable hospitals would only serve to insulate the resources of those physicians from the claims of patients who were injured as a result of alleged medical malpractice. Accordingly, we hold that the trial court erred in extending the doctrine of charitable immunity to appellees Dr. Daly and Dr. Russell and erred, therefore, in granting their motion for judgment notwithstanding the mistrial. Swofford v. Cooper, 184 Ga. App. 50, 53 (2) (360 SE2d 624) (1987) aff’d 258 Ga. 143 (368 SE2d 518) (1988); Jackson v. Miller, 176 Ga. App. 220 (1) (335 SE2d 438) (1985). See also Davis v. Stover, 258 Ga. 156 (366 SE2d 670) (1988).

4. The judgment is affirmed as to appellee Hospital and reversed as to appellees Dr. Daly and Dr. Russell.

Judgment affirmed in part and reversed in part.

Deen, P. J., Banke, P. J., Birdsong, Sognier, Pope, Benham and Beasley, JJ., concur. McMurray, P. J., concurs in part and dissents in part.

McMurray, Presiding Judge,

concurring in part and dissenting in part.

I concur in Division 3 of the majority opinion, and all that is said therein, and the reversal of the grant of judgment notwithstanding the mistrial in favor of defendants Daly and Russell. However, I respectfully dissent to Division 1 as it is my view that Grady failed to carry its burden of proving the defense of charitable immunity.

“It has long been the rule in Georgia that ‘an incorporated hospital, primarily maintained as a charitable institution, is not liable for the negligence of its officers and employees, unless it fails to exercise ordinary care in the selection of competent officers and servants, or fails to exercise ordinary care in retaining such officers and employees.’ Morton v. Savannah Hosp., 148 Ga. 438 (96 SE 887) (1918). There is an exception to this general rule: a charitable hospital may be liable for negligence to a paying patient, but the recovery is limited to income derived from non-charitable sources. Id.” Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833, 834 (1) (353 SE2d 515).

In the case sub judice, the evidence shows that Grady is a nonprofit hospital operated primarily for the medical care and hospitalization of the indigent sick and poor of DeKalb County and Fulton County, Georgia. Other evidence shows that Grady is funded through “charitable” and “non-charitable” sources, i.e., Fulton County, DeKalb County, “patient fees, Medicare, Medicaid, and [private] gifts . . . .” However, there is no- conclusive ' evidence showing whether plaintiff was a “paying patient” or a “charity patient” of the hospital.

“The burden of proof generally lies upon the party who is asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential. If a negation or negative affirmation is essential to a party’s case or defense, the proof of such negation or negative affirmation lies on the party so affirming it.” OCGA § 24-4-1. In its answer, Grady asserted charitable immunity as a defense in an attempt to avoid the question of its liability to plaintiff for medical malpractice. Consequently, the burden of proving the defense of charitable immunity was upon Grady. See McCrackin v. McKinney, 52 Ga. App. 519, 520 (2) (183 SE 831); Williamson, Inman & Co. v. Thompson, 53 Ga. App. 821, 826 (9) (187 SE 194); Commercial & Exchange Bank v. McDaniel, 147 Ga. App. 378, 379 (249 SE2d 97). Tc satisfy its burden, Grady was required to show that it is a charitabk institution and that plaintiff was a non-paying patient of the hospital See Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833, 834 (1) supra.

The only evidence Grady offered in support of its defense o charitable immunity was the testimony of John William Pinkston, Jr. “[t]he secretary-treasurer of the Fulton DeKalb Hospital Authority and executive director of Grady Memorial Hospital.” Pinkston testi fied that patients at Grady are charged according to their ability t< pay; that plaintiff’s mother’s “out-patient” medical expenses were ii excess of $100; that the mother was billed $7 for these expenses am that she paid $4 of this bill. Pinkston further testified that the “in patient” medical expenses “for the mother and the baby” for the de livery and care of plaintiff were $997.52; that “the patient” was no billed for these costs, but that the liability for these medical expense “would have been $30 total” for the mother and the baby. There was no explanation as to why Grady did not bill “the patient” for her “inpatient” medical expenses, nor is there evidence showing whether these costs were paid by a secondary source of which the plaintiff was the direct beneficiary. Compare Patterson v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 167 (384 SE2d 205).

Decided July 14, 1989

Rehearings denied July 28, 1989

Gambrell, Clarke, Anderson & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, Wood & Grant, L. Lin Wood, Wayne Grant, for appellant.

Alston & Bird, Eugene T. Branch, Bernard S. Taylor, Judson Graves, for appellees.

Accordingly, Grady failed to carry its burden of proving without question that plaintiff was a non-paying patient of the hospital. This conclusion is demanded because, upon consideration of Grady’s motion for judgment notwithstanding the mistrial, the evidence must be viewed in a light which most favorably supports plaintiff’s claim. See Findley v. McDaniel, 158 Ga. App. 445 (1) (280 SE2d 858). From this perspective, it is my view that genuine issues of material fact remain as to whether Grady was negligent in providing medical care to plaintiff and whether she was a “paying patient,” entitled to recover based on income derived from Grady’s “non-charitable sources.” See Morton v. Savannah Hosp., 148 Ga. 438 (3), supra.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A89A0291.
    GUSKY v. CANDLER GENERAL HOSPITAL, INC.
    (385 SE2d 698)
   McMurray, Presiding Judge.

On July 1, 1980, plaintiff Leila Mae DuFour Gusky consulted physician Kessler to have a head injury examined, diagnosed and treated. As a result of his examination, Dr. Kessler scheduled plaintiff for a CAT (computerized axial tomograph) scan examination at a hospital operated by defendant Candler General Hospital, Inc., on July 3, 1980. Before the scheduled time for plaintiff’s CAT scan, the CAT scan machine at defendant’s hospital became inoperable and plaintiff’s appointment was rescheduled for July 10, 1980. On July 4, 1980, after plaintiff began having convulsions, she was transported by ambulance to defendant’s hospital where the CAT scan machine was still inoperable. Shortly thereafter, plaintiff was transported to another local hospital where a CAT scan was conducted which revealed that she had a very large right-side subdural hematoma. Despite immediate surgery to remove the hematoma plaintiff suffered severe permanent mental and physical injury which has left her totally disabled.

Plaintiff, acting through her next friend and guardian, filed an action against Dr. Kessler and against defendant Candler General Hospital, Inc. Prior to trial, plaintiff’s action against Dr. Kessler was settled leaving the hospital as the sole remaining party defendant. Upon the trial of the case the jury returned a verdict in favor of the defendant hospital and plaintiff appeals. Held:

1. In her third enumeration of error, plaintiff contends the tria court erred in its pretrial order and in its charge to the jury by ruling that defendant was held to the “locality rule” standard of care rather than the “general” standard of hospital care. “The ‘locality rule’ states that a hospital owes to its patients only the duty of exercising ordinary care to furnish equipment and facilities reasonably suited to the uses intended and such as are in general use in hospitals in the area. See Emory Univ. v. Porter, 103 Ga. App. 752, 755 (120 SE2d 668). See also Smith v. Hosp. Auth. of Terrell County, 161 Ga. App. 657 (288 SE2d 715).” Hodges v. Effingham County Hosp. Auth., 182 Ga. App. 173 (1) (355 SE2d 104). “[T]he underlying rationale for the ‘locality rule’ is that the care a small hospital can provide is limited by its location and resources.” Wade v. John D. Archbold Mem. Hosp., 252 Ga. 118, 119 (311 SE2d 836). The “locality rule” is applicable only where the plaintiff is questioning the adequacy of the services of facilities of a hospital. Where the plaintiff questions the professional judgment of the hospital’s employee, such judgment must adhere to a general professional standard of training and qualificatior if the employee is subject to any. Wade v. John D. Archbold Mem Hosp., 252 Ga. 118, 119, supra; Candler Gen. Hosp. v. Joiner, 180 Ga. App. 455, 456 (1), 457 (349 SE2d 756); Hodges v. Effingham County Hosp. Auth., 182 Ga. App. 173, 174, supra.

In the case sub judice, plaintiff’s amended recast complaint al leges that on July 3, 1980, plaintiff presented herself at the defendan hospital, for the CAT scan scheduled on that date, and was informec that the CAT scan machine was inoperative and that the CAT scar requested by Dr. Kessler would have to be rescheduled. Plaintiff aven that defendant negligently failed, in performing its administrative and clerical duties, to notify Dr. Kessler that the CAT scan was no then available and could not be and was not provided plaintiff a scheduled on July 3, 1980, so that Dr. Kessler could have made ar rangements for a CAT scan to be performed at one of the other tw hospitals located in Chatham County that provided the same diagnos tic CAT scan procedure or in the alternative, defendant negligentl failed, in performing its administrative and clerical duties, to mak arrangements for the CAT scan to be conducted on July 3, 1980, a one of the other two said hospitals. Plaintiff alleges that in this manner plaintiff was negligently denied by defendant a determination on July 3, 1980, of whether plaintiff was in need of treatment and that, by reason of the negligence of defendant in carrying out plaintiff’s physician’s instructions and in performing its administrative and clerical acts that required no medical judgment, defendant is responsible to plaintiff for damages resulting from said negligent acts.

Plaintiff’s allegations are questioning the judgment of those employees of defendant responsible for formulating and implementing the procedures for scheduling patients for the CAT scan machine. Plaintiff does not suggest that the defendant’s employees’ alleged failure to communicate with Dr. Kessler concerning their inability to conduct the CAT scan as scheduled arose from any lack of resources. Indeed, it appears that such would have required only a brief telephone call. Instead, plaintiff’s allegations suggest negligence on the part of defendant’s employees as the cause of the failure to communicate with Dr. Kessler.

It follows that the trial court erred in concluding in its pretrial order that the “locality rule” was the appropriate standard of care to be applied in the case sub judice. Wade v. John D. Archbold Mem. Hosp., 252 Ga. 118, supra; Hodges v. Effingham County Hosp. Auth., 182 Ga. 173, supra; Candler Gen. Hosp. v. Joiner, 180 Ga. App. 455, supra; Johnson v. Wills Mem. Hosp. &c., 178 Ga. App. 459 (343 SE2d 700). See also Swindell v. St. Joseph’s Hosp., 161 Ga. App. 290, 291 (1) (291 SE2d 1). Unless modified, a pretrial order controls the subsequent course of the action. Thus, in addition to precipitating an erroneous jury charge on the locality rule, the trial court’s pretrial order served to bar the introduction of evidence by plaintiff and a charge to the jury in regard to the correct general standard of care. As such errors were harmful to plaintiff, the judgment of the trial court must jbe reversed.

2. Certain evidence of benefits received by plaintiff from collateral sources was admitted at trial on the assumption that such was admissible under OCGA § 51-12-1 (b). However, during the course of the trial in the case sub judice, the Supreme Court of Georgia rendered its decision in Polito v. Holland, 258 Ga. 54 (365 SE2d 273), holding that OCGA § 51-12-1 (b) was not to be given retroactive effect. Since the events of the case sub judice predate the effective date af OCGA § 51-12-1, the trial court undertook to correct the resulting arror by instructions to the jury to disregard certain payments to alaintiff.

Plaintiff’s first enumeration of error contends that those instructions to the jury were insufficient to eliminate the prejudicial effects af the collateral source evidence. However, since we must reverse on )ther grounds and this issue is unlikely to recur on another trial of the case, this enumeration of error is moot and need not be decided. City of Jefferson v. Maddox, 116 Ga. App. 51 (2) (156 SE2d 553); Georgia Power Co. v. McElmurray, 113 Ga. App. 789, 795 (5) (149 SE2d 740).

3. Plaintiffs second enumeration of error contends the trial court erred in its pretrial order and by permitting defendant to present testimony of how the settlement proceeds received by the plaintiff from former co-defendant, Dr. Kessler, could be invested to insure or finance future benefits of an annuity. Expert testimony as to annuities which could be purchased with the settlement proceeds is irrelevant as it is antithetical to the requirement stated in Jones v. Hutchins, 101 Ga. App. 141, 149 (113 SE2d 475), that future pecuniary damages are to be reduced by the jury to the present value. Such evidence may also serve to circumvent OCGA § 51-12-13 which requires that future amounts be reduced to present value upon the basis of interest calculated at 5 percent per annum. Thus, the trial court erred in including a provision in the pre-trial order allowing such evidence.

4. Plaintiff next enumerates as error the trial court’s allowing defendant to read the deposition of Gibson. The plaintiff in a motion in limine made objections to certain portions of the deposition on the ground that it contained inadmissible hearsay. Plaintiff’s motion in limine was denied and at trial defendant was allowed to read the deposition in its entirety.

At the time that the deposition was taken, it was stipulated that any objections not made at the time of the deposition would be waived, because the deposition was being taken for use at trial. In view of this stipulation, plaintiff’s failure to raise any hearsay objection during the deposition must be viewed as a waiver of the right tc object at trial. Lewis Truck Lines v. Tyson, 158 Ga. App. 149 (279 SE2d 338).

5. The trial court did not err in excluding certain hearsay testimony of witnesses Graves and Smith. Contrary to plaintiff’s contentions, this evidence, which consisted of self-serving declarations oi plaintiff, was not admissible under OCGA § 24-3-2 which “does nol remove the taint of self-serving declarations.” Smith v. State, 144 Ga App. 294 (241 SE2d 14). See also Arp v. State, 249 Ga. 403, 404 (291 SE2d 495).

6. Plaintiff contends the trial court erred in refusing to charge the jury that she was entitled to seek certain future special damages ir the form of expenses of placing her in a specially equipped private home rather than a nursing home. To warrant future medical expenses, there must be evidence that the injury will require that future medical attention. Wayco Enterprises v. Crews, 155 Ga. App. 775, 776 (1) (272 SE2d 745); Bennett v. Haley, 132 Ga. App. 512, 514 (1) (208 SE2d 302); Daugherty v. Vick, 127 Ga. App. 767, 769 (3) (195 SE2d 208); Georgia Power Co. v. Watts, 56 Ga. App. 322, 324 (4) (192 SE 493). In the case sub judice, plaintiff failed to establish any medical need for a specially equipped home for herself. The charge at issue was not authorized by the evidence and the trial court did not err in refusing this requested charge. F.A.F. Motor Cars, v. Childers, 181 Ga. App. 821, 824 (354 SE2d 6); Daugherty v. Vick, 127 Ga. App. 767, 769, supra.

7. Punitive damages may be awarded only when a defendant acts maliciously, wilfully or with such gross negligence as to indicate a wanton disregard of the rights of others. Mere negligence, although gross, will not alone authorize the recovery of punitive damages. Community Fed. Savings &c. Assn. v. Foster Developers., 179 Ga. App. 861, 865 (2) (348 SE2d 326). There is no evidence in the case sub judice sufficient to warrant the imposition of punitive damages against defendant, therefore, the trial court did not err in dismissing plaintiff’s claim for punitive damages after plaintiff rested and withholding the issue of punitive damages from consideration by the jury. Community Fed. Savings &c. Assn. v. Foster Developers, 179 Ga. App. 861, 865 (2). supra.

8. Plaintiff contends the trial court erred in allowing defense counsel to make the “community argument” in his closing argument. While apparently plaintiff contends that defense counsel’s argument urges the jury to consider prejudices irrelevant to the case and outside the proof presented at trial, such an understanding cannot be reasonably drawn from the defense arguments at issue. This enumeration of error is without merit.

9. Plaintiff enumerates as error the exclusion of certain proffered rebuttal evidence. The trial court did not err in refusing to allow witnesses Graves and Smith to be recalled as rebuttal witnesses to testify to the fact that plaintiff went to defendant hospital on July 3, 1980. Witness Graves had already testified to this fact, therefore, any error in the exclusion of such cumulative testimony was harmless. Davis v. Wing, 72 Ga. App. 380 (3) (33 SE2d 725). The proffer of the testimony of witness Smith could have only been an attempt to elicit inadmissible testimony which had been previously excluded. (See Division 5 of this opinion.)

Plaintiff also contends that the trial court erred in refusing to permit the introduction of the deposition of witness Massey, as rebuttal evidence, to contradict the trial testimony of Massey as to the procedure used in scheduling and rescheduling CAT scan procedure. However, since consideration of this contention requires a review of the evidence at issue and the record designated by plaintiff contains neither the trial testimony nor the deposition of witness Massey, this contention presents nothing for review. Thurmond v. Bd. of Commrs., Hall County, 174 Ga. App. 570 (1) (330 SE2d 787).

Judgment reversed.

Carley, C. J., Banke, P. J., Pope and Ben-ham, JJ., concur. Sognier, J., concurs in Divisions 1, 2, 4, 5, 6, 7, 8, and 9, and dissents as to Division 3. Deen, P. J., Birdsong and Beasley, JJ., dissent.

Beasley, Judge,

concurring in part and dissenting in part.

I respectfully dissent because of the holding in Division 1 of the opinion, regarding the “locality” charge.

1. The trial court order on various pretrial motions ruled that “as to the Defendant Candler General Hospital the locality rule will be the standard applied in this case. Johnson v. Wills Memorial Hospital and Nursing Home, 178 Ga. App. 459 (343 SE2d 700) (1986). The Plaintiff’s motion to disallow expert testimony by the Defendant’s witnesses as to the locality standard is denied. Accordingly, it will be incumbent upon the Plaintiff to prove at trial by expert testimony a deviation from the locality rule as to the claims asserted against Candler. Likewise, the Defendant may introduce expert testimony that the required standards were adhered to. Candler General Hospital v. McNorrill, 182 Ga. App. 107 at 111.”

At the trial the court charged the jury: “although it is the function of the jury to say whether a particular result was caused by negligence, you must evaluate the actions of Candler and its employees by a standard test. You are not permitted to set up and use an arbitrary or artificial standard by which to judge this matter. The proper test is the so-called locality rule, which says that the actions of Candler and its employees must be judged by the standard of what is reasonable for similar hospitals in the same or similar communities. It is the plaintiff’s burden to prove by expert testimony that Candler or its employees deviated from the standard of care for the same or similar localities. If the plaintiff fails to show such a lack of reasonableness under the locality standard, then you must return a verdict in behalf of Candler.”

The general standard of care and not the “locality” standard may well be applicable when the claim is that hospital employees were negligent in failing to perform and in performing administrative and clerical duties, rather than that the services or facilities of the hospital were inadequate.

However, appellant has not shown harm by the pretrial ruling or the court’s charge to the jury on this point. In order for this to be harmful to the plaintiff-patient, it must be shown that there was expert evidence presented on what the local standard was, and it must appear to the appellate court that it was less stringent a standard than the general standard. Otherwise there is no distinction drawn between the two standards and we cannot conclude that the jury applied a standard different from the general one. It may be that as to the particular duties allegedly breached here, the standard is the same. See Kellos v. Sawilowsky, 254 Ga. 4 (325 SE2d 757) (1985) (attorney’s standard of care same statewide as nationwide).

In any case, we cannot conclude from the record before us that the jury did not apply what would be the general standard of care when determining whether the hospital employees were negligent. Appellant has not supported this enumeration of error “by a reference to the page or pages in the transcript where the evidence may be found.” Rule 15 (c) (3) (ii). Even if we had the whole transcript, which we do not, we would not be obliged to search through it for such evidence. Dugger v. Danello, 175 Ga. App. 618, 620 (2) (334 SE2d 3) (1985). Compare Justice v. Dunbar, 244 Ga. 415 (260 SE2d 327) (1979). Moreover, it is appellant’s obligation to provide all of those portions of the record necessary for showing that the court erred as enumerated. (OCGA §§ 5-6-37; 5-6-41 (c); 5-6-42; Thurmond v. Bd. of Commrs., Hall County, 174 Ga. App. 570 (1) (330 SE2d 787) (1985), citing Baldwin v. Grimes, 219 Ga. 68 (131 SE2d 563) (1963).

In deciding whether or not an error of law was made by the trial court in a jury charge, the appellate court cannot consider the charge in isolation, separated from the evidence. Its relationship to the evidence is crucial to whether or not it constituted harmful, reversible error as well as to whether it correctly stated a principle of law. See Lockard v. Davis, 169 Ga. App. 208, 210 (2) (312 SE2d 194) (1983); Weaver v. State, 67 Ga. App. 692 (2) (b) (21 SE2d 542) (1942).

Unless appellant shows harmful error, we cannot reverse. Leverett v. Flint Fuel, 183 Ga. App. 75, 78 (3) (357 SE2d 882) (1987).

2. Having taken this position with respect to Division 1, I would have to reach the merits of the enumeration of error regarded as moot in Division 2. However, to do so in this dissent would serve no useful purpose.

3. With respect to Division 3, error in the before-trial evidentiary rulings would be harmless unless the same error were committed at trial. Appellant does complain in her enumeration about the allowance of trial testimony as well as about the pretrial ruling, so she has properly presented the question. It is the evidence which the jury has or does not have that counts here. Since the evidence complained of relates only to the measure of damages, and the verdict was for defendant, the legal issue on appeal need not be reached. Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (1) (378 SE2d 510) (1989). I must for this reason dissent with respect to this division also.

4. I concur in Divisions 4 through 9, which in the final analysis leads to the conclusion that a new trial is not required unless a consideration of the merits of the enumeration treated in Division 2 demands it.

I am authorized to state that Presiding Judge Deen and Judge Birdsong join in this opinion and that Judge Sognier joins in Division 3 of this opinion.

Decided July 14, 1989

Rehearing denied July 28, 1989.

Joseph B. Bergen, Frederick S. Bergen, John J. Sullivan, for appellant.

Frank W. Seiler, Bouhan, Williams & Levy, Peter D. Muller, Joseph A. Mulherin III, for appellee.