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 so as to be entitled under OCGA § 9-11-26 (b) (4) (C), he was not entitled to compensation from defendant for fulfilling such a role. Schofield v. Little, 2 Ga. App. 286, 287 (9) (58 SE 666) (1907).
He was, of course, entitled to the statutory witness fees, which defendant paid. OCGA § 24-10-24.
2. I respectfully depart from the majority opinion with respect to the remand on the trial court’s ruling denying defendant Nation*151wide’s motion for fees pursuant to OCGA § 24-10-4. The trial court was correct, but for a different reason, and there is thus no necessity for a further hearing. Orkin Exterminating Co. v. Walker, 251 Ga. 536, 539 (2c) (307 SE2d 914) (1983); Farmer v. Argenta, 174 Ga. App. 682, 684 (331 SE2d 60) (1985).
Decided February 15, 1988 Rehearing denied March 2, 1988 Malcolm S. Murray, William A. Dinges, for appellant.The basis for the trial court’s denial was that the witness was entitled to the fees claimed, so obviously the penalty provided by OCGA § 24-10-4 would not apply. The reason it does not apply, however, given our ruling in Division 1, is that the witness did not make an “unjust” claim.
There was a legal issue, based on a good faith argument, as to whether the physician-witness was entitled to expert witness fees from the party who subpoenaed him. The trial court concluded that he was, and we conclude that as a matter of law he was not. This itself illustrates the legitimacy of the good faith characterization of the claim. How could the trial court on remand, then, find that his claim was “unjust?” The primary question was whether he was due any expert witness fee from the party from which he sought it, and only if that were answered affirmatively, then how much he was due.
Nothing in the plain language of OCGA § 24-10-4 indicates an intention to penalize a witness who asserts a fee claim about which there is a legitimate legal dispute of his entitlement vel non. Moreover, since it does more than compensate “the injured party” and in fact provides it with a bonus or windfall, this civil statute should be strictly construed against the penalty. Moore v. Beneficial Fin. Co., 158 Ga. App. 535, 537 (1) (281 SE2d 293) (1981). Additionally, in fairness, the penalty of OCGA § 24-10-5 should be imposed only where a witness has no valid or good faith legal argument why additional fees should be paid. Only in those instances can it be said that the claim was made “unjustly.” Otherwise, the penalties imposed by this statute present an unfair and costly gamble for one who asserts a claim in good faith but who ultimately loses that claim.
Consequently, there is no further necessity to consider the motion. This renders moot Dr. Glaccum’s motion to disqualify counsel from testifying as to the facts surrounding the fee claim, as it was held to be by the trial court.
I am authorized to state that Presiding Judge Deen, Judge Pope, and Judge Benham join in this opinion.
*152Robert A. Falanga, Edward J. Walsh, for appellee.