City of Eatonton v. Few , 189 Ga. App. 687 ( 1988 )

Carley, Judge.

This is the second appearance of this wrongful death case before this court. In Few v. City of Eatonton, 179 Ga. App. 110 (345 SE2d 657) (1986), we reversed the grant of summary judgment in favor of appellant-defendant City of Eatonton. Thereafter, the case was tried before a jury and a verdict in favor of appellee-plaintiffs was returned. After judgment was entered on the jury’s verdict, appellant filed a motion for judgment notwithstanding the verdict or, in the alternative, for new trial. Appellant now appeals from the denial of its alternative motions and from the judgment which was entered by the trial court on the jury’s verdict in favor of appellees.

1. Appellant enumerates the general grounds, urging that there was insufficient evidence to authorize a finding of its liability for the death of appellees’ decedent under a nuisance theory.

In this very same case, we have previously dealt with the evidentiary requirements for proving the existence of an actionable nuisance and found that the evidence was sufficient to authorize a finding of appellant’s liability under a nuisance theory. Few v. City of Eatonton, supra. In Few, we held: “ ‘In City of Bowman v. Gunnells, 243 Ga. 809 (2) (256 SE2d 782) (1979), the Supreme Court set out three guidelines to define a nuisance for which a city may be held liable. First, the defect or degree of misfeasance must be to such a degree as would exceed the concept of mere negligence. Second, the act must be of some duration. Third, the city must have failed to act within a reasonable time after knowledge of the defect or dangerous condition.’ Rainey v. City of East Point, 173 Ga. App. 893, 894 (328 SE2d 567) [(1985)]. Applying these guidelines to the case sub judice we find evidence which would authorize a jury to conclude that the manner in which the pool was operated created a nuisance. The evidence stated most favorably to the non-moving party shows that the water in the pool was sufficiently cloudy or dirty that one could not see the bottom of the pool at the deep end (12 feet deep). This condition existed when the pool opened for the summer and continued through the time of the death of plaintiffs’ son in late June. The machine which would clean the water was broken and the city received repeated notice of that fact. An employee of the defendant City of Eatonton attempted to correct the problem without success. Also, while there was conflicting evidence as to the division of responsibilities in regard to the pool between the City of Eatonton and Putnam County, there is evidence which could authorize a conclusion that the city was responsible for the operation and maintenance of the pool.” Few v. City of Eatonton, supra at 111.

Only in a rare case will the evidence which is adduced during the pre-trial discovery process be mirrored exactly by the evidence which is adduced during the subsequent trial. However, insofar as sufficiency is concerned, a review of the evidence upon which the jury in this case returned its verdict shows that it is substantially the same as that which was in the record before this Court in Few. Appellant’s primary contention relates to the sufficiency of the evidence of its prior knowledge of the dirty or cloudy condition of the pool. While exactly the same deposition testimony of Coach Robert Woods, who was the pool manager, may not appear in the trial transcript, the following is in the trial transcript: Coach Woods was asked: “Do you have a recollection of how many times you attempted to contact or attempted to get Mr. [Edwin] Hodges [, appellant’s employee in charge of the municipal water system,] over to the pool before [the] death [of appellees’ decedent]?” Coach Woods responded: “Off the top of my head I would have to say about five times.” Immediately after this testimony concerning Coach Woods’ attempt to contact Mr. Hodges “about five times” the following questions and answers appear:

“Q: Did [Mr. Hodges] ever come over before [appellees’ decedent] drowned and work on the pool?

“A: Yes he did.

“Q: Did the problem go away?

“A: Well, it went away and it came back. It went away and it came back. It was that type of thing.

“Q: Do you know what the problem was [Mr. Hodges] was trying to fix?

“A: Well, I don’t know the anatomical words that you use. But I think it was to drain the dirty water out and to clear it out some kind of way. I’m not — I’m not really sure of the terminology that he used.”

Later during the examination of Coach Woods, he was asked:

“Q: Did Mr. Hodges, before [appellees’ decedent] drowned, ever get the thing straightened out to where the pool stayed clear for several days?

“A: There was one particular time I know of that he worked real, real hard on it because I had been complaining about the cloudiness, and he worked on it, and I guess — I guess when you add a lot of chlorine it’s called shocking the pool and I think that’s what he did, he shocked the pool. But, I guess it stays like that maybe one or two days and after that you saw the cloudiness coming back again.” (Emphasis supplied.)

In addition to the testimony of witnesses called by the appellees, one of appellant’s own witnesses was asked on cross-examination the following:

“Q: . . . After the pool opened, did Edwin Hodges run it or did Coach Woods?

“A: Edwin Hodges ran it.”

Finally, another of appellant’s witnesses, on cross-examination, stated that Mr. Hodges would stop by the pool occasionally and work in the pump room. The witness stated that Mr. Hodges would usually stay about 15 to 20 minutes. Most importantly, in response to the inquiry as to why Mr. Hodges was at the pool on those occasions, the witness stated: “Trying to clear the condition.”

Based upon the above portions of the record, we again “find evidence which would authorize a jury to conclude that the manner in which the pool was operated created [an actionable] nuisance. . . . The machine which would clean the water was broken and the city received repeated notice of that fact. An employee of the defendant City of Eatonton attempted to correct the problem without success.” Few v. City of Eatonton, supra at 111. As indicated, this Court in Few reversed the grant of summary judgment because a jury would be authorized to find the existence of an actionable nuisance. Now, the jury, having heard substantially the same evidence, has found just that. The jury verdict being supported by sufficient evidence, it was not reversible error to enter judgment thereon.

2. Contending that there was no evidence to authorize a finding that it operated and maintained the swimming pool as a “joint enterprise” with Putnam County, appellant moved for a directed verdict as to that issue. The trial court denied appellant’s motion and that ruling is enumerated as error.

“ ‘Broadly, there is a joint enterprise or adventure when two or more combine their property or labor, or both, in a joint undertaking for profit, with rights of mutual control, provided the arrangement does not establish a partnership.’ [Cit.]” Bowman v. Fuller, 84 Ga. App. 421, 425 (1) (66 SE2d 249) (1951). Appellant urges that, under the evidence, the elements of a profit motive and of mutual control are otherwise lacking in its agreement with Putnam County as to the operation and maintenance of the pool, preventing that agreement from being found to be a “joint enterprise.”

Notwithstanding appellant’s reliance upon certain appellate decisions which discuss “joint enterprise” as that concept is “broadly” defined, it is clear that a “joint enterprise” may nevertheless be found to exist even though a profit motive and mutual control are otherwise lacking. See Seckinger & Co. v. Foreman, 252 Ga. 540, 541 (1) (314 SE2d 891) (1984). The Constitution of this state specifically authorizes a county and a municipality to enter into joint agreements. The Constitution provides that they “may contract . . . with each other . . . for joint services, for the provision of services, or for the joint or separate use of facilities or equipment. ...” (Emphasis supplied.) Ga. Const, of 1983, Art. IX, Sec. Ill, Par. I (a). Pursuant to this constitutional provision, appellant and Putnam County, in effect, entered into a “joint enterprise” whereby the swimming pool would be operated and maintained for the mutual benefit of their citizens. The evidence shows that appellant retained both the ownership of its municipal swimming pool and the responsibility for the maintenance of the pool equipment and that Putnam County assumed responsibility for the actual day-to-day operation of the pool. Thus, by combining appellant’s property and the maintenance labor of its employees with the operation labor of Putnam County’s employees, a swimming pool was jointly maintained and operated for the residents of the city and the county. On this evidence, a finding was authorized that the swimming pool was a “joint enterprise,” regardless of the lack of a profit motive and notwithstanding the parties’ determination, as between themselves, how the control over the facility would be exercised. Cf. Seckinger & Co. v. Foreman, supra. It follows that the trial court did not err in failing to grant appellant a directed verdict as to the “joint enterprise” issue.

3. Appellant enumerates as error the trial court’s giving of several charges relating to the legal principles applicable to a “joint enterprise.” Appellant’s only contention is that the evidence did not authorize a finding of the existence of a “joint enterprise” and, therefore, the giving of any charge relating to that issue was not authorized. As discussed in Division 2, however, the evidence did authorize a finding that the maintenance and operation of the swimming pool was a “joint enterprise.” Accordingly, the charges were not erroneously given.

4. Appellant requested a charge which was to the effect that, under the doctrine of governmental immunity, liability could not be predicated upon its alleged negligence in the operation and maintenance of the swimming pool. The failure to give this charge is enumerated as error.

Appellant’s refused request is a correct statement of the law. See generally Robinson v. City of Decatur, 253 Ga. 779 (1) (325 SE2d 752) (1985), overruled on other grounds, Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 301 (2) (357 SE2d 569) (1987). However, the record shows that the jury was otherwise instructed that appellant’s liability for the death of appellees’ decedent was dependent upon its operation and maintenance of the swimming pool as a nuisance, which required the showing of a “defect or degree of misfeasance . . . to such a degree as would exceed the concept of mere negligence.-. . .” (Emphasis supplied.) Thus, although the trial court did not employ the words of appellant’s refused request, it did instruct the jury that appellant’s liability was dependent upon a showing of more than the mere negligent maintenance and operation of the swimming pool. Under these circumstances, it was not reversible error to fail to give the request to charge. See generally Hutcheson v. City of Jesup, 132 Ga. App. 84, 87 (3) (207 SE2d 547) (1974).

5. Appellant enumerates as error the failure to give a requested charge on assumption of the risk.

“The doctrine of assumption of risk applies in tort cases when a person without coercion of circumstances, pursues a course of conduct with full knowledge of its danger thereby exercising a free choice as to whether to engage in the act or not. [Cits.]” Kitchens v. Winter Co. Bldrs., 161 Ga. App. 701, 702 (1) (289 SE2d 807) (1982). The evidence did not demand a finding that appellees’ decedent, by voluntarily leaving the clear shallow end of the swimming pool, assumed, as a perceived risk, the likelihood that he, as a poor swimmer, would not be rescued should he encounter difficulties in the cloudy deep end of the pool. The evidence was, however, sufficient to create a jury issue in this regard. “[Assumption of the risk of the circumstances existing when [appellees’ decedent] placed himself into the picture was arguably a factor. The jury was authorized to find that [,] by knowingly choosing to [venture into the cloudy deep end of the swimming pool, appellees’ decedent] unreasonably assumed the risk incident thereto, which would be a complete bar to recovery. Or it could have found that such action did not invoke a choice of an obviously perilous course of conduct with full appreciation of the danger involved. If the latter had been the jury’s finding, then there would be no basis for precluding recovery.” Newman v. Collins, 186 Ga. App. 595, 597 (1a) (367 SE2d 866) (1988). By refusing to give the request to charge, the trial court erroneously denied appellant the opportunity to have the jury consider assumption of the risk as a complete defense to its liability. Since this error was not harmless, the grant of a new trial is mandated.

6. The trial court’s failure to give a requested charge on the avoidance doctrine is enumerated as error. A review of the record shows, however, that the trial court did give an adequate instruction to the jury on the avoidance doctrine, albeit in language which did not employ the exact wording of appellant’s request. Accordingly, there was no error.

7. The trial court’s failure to give appellant’s requested charge on the definition of an actionable nuisance is enumerated as error. The record shows that this issue was likewise adequately covered in the charge as given.

8. The remaining enumeration of error need not be addressed as it is unlikely to recur at the retrial of the case.

Judgment reversed.

Been, P. J., McMurray, P. J., Pope, Ben-ham and Beasley, JJ., concur. Birdsong, C. J., Banke, P. J., and Sognier, J., dissent. .