Nationwide Mut. Ins. Co. v. Glaccum

• Citation: 366 S.E.2d 772,186 Ga.App. 148
• Decision Date: 15 February 1988
• Docket Number: No. 75637,75637
• Parties: NATIONWIDE MUTUAL INSURANCE COMPANY v. GLACCUM.
• Court: United States Court of Appeals (Georgia)

Page 772

366 S.E.2d 772

186 Ga.App. 148

NATIONWIDE MUTUAL INSURANCE COMPANY v. GLACCUM.

No. 75637.

Court of Appeals of Georgia.

Feb. 15, 1988.

Rehearing Denied March 2, 1988.

Certiorari Denied April 7, 1988.

Malcolm S. Murray, William A. Dinges, Decatur, for appellant.

Robert A. Falanga, Altanta, Edward J. Walsh, Marietta, for appellee.

McMURRAY, Presiding Judge.

This discretionary appeal is an offshoot of an automobile negligence action which appeared in this court previously. See Nationwide Mut. Ins. Co. v. Whiten, 179 Ga.App. 544, 346 S.E.2d 914. We granted this appeal to determine whether a subpoenaed witness was entitled to additional compensation for his testimony.

Robert Whiten brought suit against Larry Miller seeking damages for injuries sustained in an automobile collision. Nationwide Mutual Insurance Company ("Nationwide"), Whiten's uninsured motorist carrier, defended the lawsuit in its own name. As the case proceeded to trial, Nationwide served a subpoena upon Dr. John C. Glaccum, a chiropractor who treated Whiten for his injuries. Contemporaneously, Nationwide tendered to Dr. Glaccum the witness fee and mileage for travelling expenses. See OCGA § 24-10-24.

Thereafter, in a letter dated April 26, 1984, Dr. Glaccum notified Nationwide that his fee for attending court would be $2,000 and that Nationwide would have to agree to pay that fee if he was to make an appearance. Nationwide did not agree to pay Dr. Glaccum any additional compensation. Nevertheless, Dr. Glaccum appeared in court upon the trial of the case. He was called to the witness stand by Whiten and Nationwide cross-examined him. After the trial, Dr. Glaccum sent Nationwide a "final bill" demanding payment of $1,932.

Relying upon OCGA § 24-10-4, Nationwide moved for an order requiring Dr. Glaccum to pay Nationwide the sum of $8,000 (four times the amount initially claimed by Dr. Glaccum). The motion was accompanied by the affidavit of Malcolm S. Murray, Sr., counsel for Nationwide. In his affidavit, Murray deposed that as counsel for Nationwide he caused a subpoena to be served on Dr. Glaccum; that Dr. Glaccum was not asked by Nationwide to examine Whiten or review Whiten's records "or do anything else in preparation for testifying at the trial of [the] case"; that Dr. Glaccum was paid $40 (representing the statutory fee for one day in court plus mileage); that Dr. Glaccum demanded $2,000 "in advance from the law firm of Murray and Temple as a condition to his appearing as a witness"; that after appearing as a witness in the case, Dr. Glaccum demanded payment of $1,932; and that "if sworn as a witness ... [Murray] could and would competently testify to the facts set out in the foregoing affidavit from personal knowledge."

Dr. Glaccum moved to disqualify Murray as counsel for Nationwide. In this regard, he asserted that Murray could not be both advocate and witness.

Opposing Nationwide's motion under OCGA § 24-10-4, Dr. Glaccum submitted his own affidavit. Therein, he deposed that he is a licensed Georgia chiropractor; that chiropractors charge a witness fee "based on an hourly rate of income"; that he charges $200 for the first hour of testimony and $100 for each succeeding hour; and that because he was subpoenaed by Nationwide, he was forced to close his office for a total of 13.5 hours on four different days (March 12, 1984, September 13, 1984, January 14, 1985, and January 17, 1985).

The trial court denied Nationwide's motion under OCGA § 24-10-4. It ruled that Dr. Glaccum appeared at trial as an expert witness and that, therefore, he was entitled to be compensated as an expert. In light of its ruling, the trial court determined that Dr. Glaccum's motion to disqualify counsel was moot. Held:

1. In view of the fact Dr. Glaccum was not asked to conduct any preliminary examination or review of his records in order to better give his opinion as an expert, he was not entitled to demand extra compensation for attendance in court pursuant to the subpoena. See Schofield v. Little, 2 Ga.App. 286, 287(9), 58 S.E. 666; Dixon v. State, 12 Ga.App. 17(2), 76 S.E. 794. Compare Logan v. Chatham County, 113 Ga.App. 491(1), 148 S.E.2d 471, with Polston v. Levine, 171 Ga.App. 893(1), 321 S.E.2d 350. As it is said, "[A]n expert cannot refuse to testify and be qualified as an expert witness because he has not been and will not be compensated as an expert. He must obey a subpoena just as any other witness. However, if an expert is required to testify for the usual witness fee of $10.00 a day, you are likely to get about $10.00 worth of testimony." Agnor's Ga. Evidence 195, § 9-5.

2. In view of our ruling in Division 1, we reverse and remand this appeal to the trial court for reconsideration of Nationwide's motion made pursuant to OCGA § 24-10-4. We note that in order to reconsider Nationwide's motion the trial court should of necessity first reconsider Dr. Glaccum's motion to disqualify counsel which the trial court previously ruled as moot.

Judgment reversed and case remanded.

BIRDSONG, C.J., BANKE, P.J., and CARLEY and SOGNIER, JJ., concur.

DEEN, P.J., and POPE, BENHAM and BEASLEY, JJ., concur in part and dissent in part.

BEASLEY, Judge, concurring in part and dissenting in part.

1. I concur in Division 1. Dr. Glaccum was subpoenaed by defendant not to give opinion testimony as an expert witness to assist the jury in understanding of matters outside common knowledge, but as a physician who had rendered medical treatment to plaintiff for injuries for which he claimed damages in this personal injury suit. Neither did defendant call him to the witness stand to testify as an expert witness; instead, plaintiffs called him, apparently to testify about the treatment and also to give his opinion as an expert. Since he did not fill any expert witness role for defendant, such as reviewing plaintiff's medical records as an independent practitioner, or providing discovery...