Opinion
A92A1479.
DECIDED SEPTEMBER 14, 1992. RECONSIDERATION DENIED SEPTEMBER 28, 1992.
Action for damages. Chatham Superior Court. Before Judge Head.
Wayne B. Kendall, for appellant.
Ernest S. Roberts, Jr., pro se. Bouhan, Williams Levy, Walter C. Hartridge, M. Tyus Butler, Jr., Walls Corlew, J. Michael Walls, Harold D. Corlew, for appellees.
Plaintiff Roberts was formerly employed by defendant Chatham Area Transit Authority as a bus driver. In connection with that employment, defendant Amalgamated Transit Union, Local 1324, was plaintiff's exclusive collective bargaining representative and the circumstances of plaintiff's employment were governed by a collective bargaining agreement between the defendants.
Plaintiff was injured on the job when the bus he was operating was struck by a car. While plaintiff was out of work receiving medical treatment allegedly related to this injury, he was discharged. In this action, plaintiff sought damages from his former employer on a theory of breach of contract and against the union on theories of breach of various duties to represent plaintiff and tortious interference with plaintiff's contract with the former employer. Plaintiff appeals following a verdict and judgment in favor of the two defendants. Held:
1. In Denton v. Con-Way Southern Express, 261 Ga. 41 ( 402 S.E.2d 269) (1991), the Georgia Supreme Court held that OCGA § 51-12-1 (b) authorizing the admission in evidence of collateral source payments is unconstitutional. Plaintiff contends, for the first time on appeal, that the trial court erred in charging the jury that they could consider collateral source payments in mitigation of his injuries. This Court recently held in Anepohl v. Ferber, 202 Ga. App. 552 ( 415 S.E.2d 9), that the holding in Denton must be applied retroactively to those cases still pending at the time Denton was decided. See Tyler v. Roberts, 204 Ga. App. 380, 381 (1) ( 419 S.E.2d 103). "Pursuant to our ruling in Anepohl, the [plaintiff] did not waive [his] objection to the trial court's charge on collateral source payments by failing to raise an objection at trial since, pursuant to OCGA § 5-5-24 (c), the charge was error as a matter of law." Tyler v. Roberts, 204 Ga. App. 380 (2), supra.
Furthermore, we reject defendants' argument that the collateral source rule is applicable only to tort cases and has no applicability to contract cases. While issues concerning application of the collateral source rule to contract cases arise less frequently, this Court has repeatedly applied this principle in breach of contract actions. See Mallory v. Daniel Lumber Co., 191 Ga. App. 234, 235 (1) ( 381 S.E.2d 406); Insurance Co. of N. A. v. Fowler, 148 Ga. App. 45, 52 ( 244 S.E.2d 573); Peoples Bank of LaGrange v. Ga. Bank c. Co., 126 Ga. App. 768, 771-772 (1) ( 191 S.E.2d 876).
2. The issues which plaintiff would raise through his remaining enumeration of error were not preserved for appeal by any proper objection at trial, thus are deemed waived.
Judgment reversed. Sognier, C. J., and Cooper, J., concur.