Walker v. Jack Eckerd Corp., s. A93A0691

• Decision Date: 03 June 1993
• Docket Number: A93A0692,Nos. A93A0691,s. A93A0691
• Citation: 209 Ga.App. 517,434 S.E.2d 63
• Parties: WALKER v. JACK ECKERD CORPORATION. KARP v. WALKER.
• Court: Georgia Court of Appeals

Page 63

434 S.E.2d 63

209 Ga.App. 517

WALKER v. JACK ECKERD CORPORATION.

KARP v. WALKER.

Nos. A93A0691, A93A0692.

Court of Appeals of Georgia.

June 3, 1993.

Reconsideration Denied July 15, 1993.

Certiorari Denied Oct. 29, 1993.

Walls & Corlew, Harold D. Corlew, Atlanta, Charles A. Cole, Jr., Smyrna, for Walker.

Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, Adam L. Appel, Susan Z. Lembo, Atlanta, for Karp.

Sutherland, Asbill & Brennan, Elizabeth V. Tanis, Laura M. Shamp, Atlanta, for Jack Eckerd Corp.

BIRDSONG, Presiding Judge.

Appellant/cross-appellee Wayne E. Walker (Walker) appeals from the order of the state court granting summary judgment to appellee Jack Eckerd Corporation (Eckerd's). Cross-appellant Alan A. Karp, M.D. (Dr. Karp) cross-appeals from the order denying his motion for summary judgment.

This appeal arises from a malpractice action by Walker against Dr. Karp who prescribed a drug, Blephamide, that allegedly injured Walker, and against the pharmacy which dispensed the drug. A package insert issued to pharmacies with the drug warned that prolonged use could result in glaucoma. Dr. Karp, who was then duly licensed to practice medicine in Georgia, twice prescribed Blephamide for Walker. Walker asserts that both of Dr. Karp's prescriptions were "PRN" prescriptions. A "PRN" prescription can be refilled as needed over a lengthy time period, usually not over one year. Dr. Karp denies that he issued either prescription as "PRN," or otherwise refillable. Nevertheless, appellant made averments of fact in his complaint that both the first and second prescriptions, which Dr. Karp telephoned to Eckerd's, were "PRN." Eckerd's dispensed this drug under one of the prescription numbers fifteen times to Walker in less than one year. Walker subsequently was diagnosed with glaucoma, which allegedly was caused by excessive Blephamide prescribed by Dr. Karp and dispensed by Eckerd's. Held:

Case No. A93A0691 (Main Appeal)

1. The trial court, citing Reynolds v. Estate of R.J. Reynolds, 238 Ga. 1, 3, 230 S.E.2d 842, found that appellant's complaint averred "that defendant Karp telephoned a 'PRN' prescription to defendant Eckerd's drugstore.... Defendant Eckerd, in its answer, admits this allegation. As such, [appellant] is bound by the allegation contained in his complaint, which was admitted by the answer."

Appellant's contention that this pleading did not constitute an admission in judicio because it was merely an expression of opinion is without merit. Although admissions in judicio apply only to admissions of fact and do not apply when the admission is merely the opinion or conclusion of the pleader as to law or fact (Howell Mill-Collier Assoc. v. Pennypacker's, 194 Ga.App. 169, 172, 390 S.E.2d 257), examination of the complaint reveals that the admissions as to the "PRN" prescription were unequivocally averred as statements of fact. It is incidental that this averred information may not have originated within plaintiff's personal knowledge; having placed it within his pleading as a statement of fact, appellant cannot escape the effect of his pleading strategy merely by asserting that the pleaded information was based on matters within the knowledge of a third person. Admissions are received in evidence either as a hearsay exception or as non-hearsay (Green, Ga.Law of Evid. (3d ed.), Admissions, § 234); suffice it to say that under either theory admissions are not rendered inadmissible through a claim of hearsay.

A question remains whether an admission in judicio results when conflicting evidence appears elsewhere in the record as to the fact allegedly admitted in the pleadings. Admissions in judicio can be considered in the disposition of summary judgment cases. See generally Reynolds, supra; Four Square Constr. Co. v. Jellico Coal etc. Co., 145 Ga.App. 650, 244 S.E.2d 612.

In Summerlot v. Crain-Daly Volkswagen, 238 Ga. 546, 547(1), 233 S.E.2d 749, the Supreme Court observed that "[t]he Civil Practice Act provides that when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated ... as if they had been raised in the pleadings" and that "pleadings may be amended so as to conform to the evidence, but failure to so amend does not affect the result of the trial on the issues actually tried." (Emphasis supplied.) Id. Then after noting that "the issue ... was considered and determined on its merits by the trial judge," the Supreme Court concluded that "we do not consider the alleged typographical error in the complaint to be an admission in judicio that barred the applicant from showing to the contrary." (Emphasis supplied.) Id. at 547, 233 S.E.2d 749. This rationale was followed by this court in Stephens v. Tate, 147 Ga.App. 366, 367(1), 249 S.E.2d 92, holding that an unwithdrawn admission in the complaint did not constitute a binding admission in judicio supporting grant of summary judgment where the order was hotly contested and "the issue was considered and determined on its merits by the trial court." (Emphasis supplied.)

In Space Leasing Assoc. v. Atlantic etc., Systems, 144 Ga.App. 320(4), 241 S.E.2d 438, appellants asserted that the recitation of a certain date in a complaint was a typographical error. This court, purporting to construe Summerlot, supra, held: " 'The Civil Practice Act provides that when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. It also provides that pleadings may be amended so as to conform to the evidence, but failure to so amend does not affect the result of the trial on the issues actually tried. [Cit.]' " (Emphasis supplied.) Space Leasing, supra at 326(4), 241 S.E.2d 438. It was then concluded that "[t]he thrust of this holding, that where a pleading is in conflict with other evidence it will be deemed amended to conform with the evidence, is in accord with the federal courts' construction of Rule 15(b). These cases have consistently held that pleadings are deemed amended to conform with the evidence whether formally amended or not, even if the allegations of the pleadings are contradictory to the evidence. [Cits.]" Id. at 327(4), 241 S.E.2d 438; compare Chester v. State, 168 Ga.App. 618(1), 309 S.E.2d 897. Neither Space Leasing, supra, nor Chester, supra, address the significant factor discussed in Summerlot, supra, that the issue involved in the admission in the pleadings was one actually determined on the merits by the trial court. (Moreover, Chester, supra, is distinguishable as the issue of ownership of money involved a legal question so that the denial of ownership under the circumstances presented appears to have related to a conclusion of law rather than an admission of fact.) Subsequently, this court in an appeal of a jury verdict, citing both Summerlot and Space Leasing, held that where a pleading is in conflict with evidence presented at trial, it will be deemed amended to conform to the evidence. Aiken v. Dept. of Transp., 171 Ga.App. 154, 155(1), 319 S.E.2d 58; compare Sambo's of Ga. v. First Am. Nat. Bank, 152 Ga.App. 899, 901(3), 264 S.E.2d 330; Blatt v. Bernath, 151 Ga.App. 69, 71(1), 258 S.E.2d 735. However, this court has held that a party to a suit will not be allowed to disprove an admission made in his pleadings, without withdrawing it from the record, and "[t]he CPA did not wipe out or destroy the law in Georgia to the effect that a party to an action is bound by material allegations made in his pleadings so long as they remain in his pleadings, and the plaintiff's contradictory pleadings, if any, are to be construed in favor of the defendant." Anderson v. Oakley, 133 Ga.App. 758, 759(1), 212 S.E.2d 875; accord Four Square Constr., supra; Martin v. Pierce, 140 Ga.App. 897, 898(1), 232 S.E.2d 170 cited and applied without explanation in Shahan v. Scott, 259 Ga. 172, 377 S.E.2d 859. Thus, "[t]he Civil Practice Act did not affect the rule that admissions in pleadings are conclusive." Agnor's Ga.Evid. (2d ed.), Hearsay, § 11-10.

It appears that merely because conflicting evidence may exist as to a given issue of fact, this will not prevent per se a party from making an admission in judicio in his pleadings as to that fact. However, if the trial court admits that conflicting evidence, and either the court (e.g., when ruling on a motion for summary judgment) or the jury (when reaching its verdict) considers the conflicting evidence on the merits, the pleadings at that point become amended to conform to such evidence. This is because, by admitting the evidence and allowing the factfinder to consider it, the trial court has in effect, either sua sponte or by overruling an opposing motion, tacitly permitted the pleading party to withdraw the admission contained in the pleadings. Conversely, when the trial court does not allow the conflicting evidence to be admitted or, where applicable, elects not to consider the issue on the merits, the admission of fact made in the pleadings remains in full force and effect as an admission in judicio and is conclusive of the fact admitted. See generally OCGA § 24-3-30; cf. Grant v. Rivers, 182 Ga.App. 631, 356 S.E.2d 560, where it was held, "having admitted in his answer to the terms of the agreement as alleged by [appellant], [appellee] was bound thereby and, so long as those admissions remained unstricken or unamended, was estopped to present evidence to the contrary." Basically, the rule vests the trial court with discretion to determine whether an admission of fact made in pleadings should be withdrawn, thereby allowing the pleadings to be amended by conflicting evidence admitted and considered on the merits.

The case at bar is factually distinguishable from the above-cited cases; likewise, it is distinguishable from Smith v. Doe, 189 Ga.App. 264(2), 375 S.E.2d 477, a case involving the pleading of inconsistent...