Dent v. Memorial Hospital of Adel, Inc. , 227 Ga. App. 801 ( 1997 )

Eldridge, Judge,

dissenting.

I fully agree and concur with the entire dissent of Senior Appellate Judge Harold R. Banke but feel it necessary to address an issue raised by the majority that the appellants failed to adequately set forth their objection to the charge by the trial court to preserve such issue. While I believe, along with the dissent of Senior Judge Banke, that a proper objection by appellants was timely made in the trial court, the case sub judice comes within the rare exception of OCGA § 5-5-24 (c), “Notwithstanding any other provision of this Code section, the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.” Clearly, when the trial court charges upon only one theory of liability as the exclusive means to recover when the evidence tendered, argued, and submitted charges raise two theories of liability and when objection is timely made but the trial court refuses to correct the charge given after the error has been objected to on the record, such circumstances clearly and palpably fall within the exception of OCGA § 5-5-24 (c). This Court recently in Drug Emporium v. Peaks, 227 Ga. App. 121 (488 SE2d 500) (1997), held that failure to charge on the standard of proof for punitive damages, even without written request to charge submitted or specific objection made, constituted reversible error as “plain error” under OCGA § 5-5-24 (c); the case sub judice is factually more compelling. The case sub judice is even more egregious and within OCGA § 5-5-24 (c) than Drug Emporium, Presiding Judge Birdsong in a well reasoned and compelling opinion held, “However, pretermitting whether appellant adequately preserved this question on appeal by taking a timely, adequate exception to the trial court’s charge [that professional malpractice was the exclusive basis for liability] rather than [the two theories of liability, ordinary negligence and professional malpractice,] and by sufficiently arguing this particular issue in its appellate brief, is the issue whether this was an error of such nature and magnitude as to constitute a plain error of which an appellate court can take notice sua sponte. It clearly is such. It is a general appellate rule that in ‘exceptional circumstances . . . appellate courts may, on their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.’ Kearney v. State, 184 Ga. App. 64, 66 (360 SE2d 633) [(1987)]. Recently our Supreme Court, after holding that both errors not raised and errors not timely raised generally are waived, stated: ‘In the future, however, except in cases of “plain error,” enumerations of error not timely raised and/or argued shall be waived....’ Lynd v. State, 262 Ga. 58, 60-61 (8) (414 SE2d 5) [(1992)]. ‘ “Plain error” is that which is “so clearly erroneous as to result in a likelihood of a grave miscarriage of justice” or which “seriously affects the fairness, integrity or public reputation of a judicial proceeding.” ’... Id. at 61, n. 2. Inherent in this holding is that ‘plain error’ is not so waived.” (Emphasis supplied.) Drug Emporium, supra at 125. See also Agnew v. State, 267 Ga. 589, 591 (2) (481 SE2d 516) (1997); Foskey v. Foskey, 257 Ga. 736, 737 (2) (363 SE2d 547) (1988).

“When an error in the charge of the court is shown to exist, it is presumed to be prejudicial and harmful, and this court will so hold unless it appears from the entire record[, which as to this error it does not,] that the error is harmless.” (Punctuation omitted.) Foskey v. Foskey, supra at 737. “We are unable to say that the erroneous charge, as vague as it was, could not have misled the jury.” Dept. of Transp. v. Davison Investment Co., 267 Ga. 568, 570 (481 SE2d 522) (1997). The trial court’s error in charging the jury that precluded a consideration of ordinary negligence and restricted the jury to a consideration of hospital malpractice and failing to correct such charge when brought to the court’s attention, even if imperfectly done, is such “plain error” and “substantial error” that reversal is mandated. See Drug Emporium, supra. When the plaintiffs received an adverse verdict on a close evidentiary case, it cannot be said that there was no harm in the charge that eliminated their best theory of recovery and the minds of the jury were not prejudiced thereby in their deliberations.