text:
    A92A2020.
    LEO v. WILLIAMS.
    (428 SE2d 108)
   Pope, Chief Judge.

Plaintiff Charles H. Leo was severely injured when his motorcycle collided with a vehicle driven by defendant Brenda Rabun Williams on a highway in Augusta. At trial, the evidence showed defendant made a left turn from the center turn lane across two lanes of approaching traffic into a driveway leading to a business. Defendant testified the approaching traffic was far enough away to permit her to make the turn safely and that she saw no motorcycle approaching her as she commenced the turn. Plaintiff testified defendant made the turn directly in front of him and, though he swerved, he was unable to avoid striking the rear of defendant’s vehicle. Witnesses to the accident, however, testified plaintiff passed the vehicle in front of him by speeding between the two cars that were approaching defendant as she made the left turn and plaintiff drove into the rear of defendant’s vehicle. The jury returned a verdict for defendant.

Prior to trial, plaintiff brought a motion in limine to prevent defendant from presenting evidence that in the ten months prior to the collision plaintiff had been convicted for two speeding violations on highways which, like the highway on which this collision occurred, were within a city limit and evidence of a traffic violation for passing cars between lanes of traffic. The trial court denied plaintiff’s motion in limine and overruled plaintiffs objection when he was cross-examined concerning these violations. Plaintiff appeals, arguing the trial court erred in permitting the evidence of his previous traffic violations to be presented. We agree.

“It is a general rule that in a suit for negligence, evidence of similar acts or omissions on other and different occasions is not admissible.” Cox v. Norris, 70 Ga. App. 580, 583 (1) (28 SE2d 888) (1944). “[A party’s] negligence or lack of negligence on [the] occasion [at issue in the complaint] could be proved only by the facts of the event and not by evidence of his prior driving record or of his general character for carelessness or recklessness in driving. [Cits.] Evidence of [a party’s] similar acts or omissions on other and different occasions is not admissible. [Cits.] It is not probative of the issue at hand and there is a substantial likelihood that the [party’s] criminal record of prior or subsequent offenses may prejudice the jury against him as to the question of liability in the particular case.” Whidby v. Columbine Carrier, 182 Ga. App. 638, 639 (356 SE2d 709) (1987). “ Tt is settled by the decisions of the Supreme Court and of this court that as to . . . the driver, proof of his poor driving record, or of his general character for carelessness or recklessness in driving, is impermissible . . . Nor is it permissible to show particular instances of negligence on other occasions . . . The [opposing party] should not be permitted to . . . influence the jury to find against the driver on account of some negligent act which he may have committed at a prior time, on another occasion, in a different situation and with other parties.’ [Cit.]” Chupp v. Henderson, 134 Ga. App. 808, 811 (2) (216 SE2d 366) (1975). Accord Gahring v. Barron, 108 Ga. App. 530 (2) (133 SE2d 389) (1963); Grannemann v. Salley, 95 Ga. App. 778 (1) (99 SE2d 338) (1957).

We reject defendant’s argument that the evidence at issue in this case is admissible to show habit because plaintiff, himself, testified concerning these traffic violations on cross-examination. The purpose of permitting a witness to testify concerning his fixed and uniform habit of acting in a certain situation is to provide evidence that the witness acted in accordance with that habit in a situation concerning which he has no independent recollection. See, e.g., Leonard v. Mixon, 96 Ga. 239 (23 SE 80) (1895). Clearly, this was not the purpose for which plaintiff’s cross-examination testimony was elicited by defendant. Defendant presented plaintiff’s admissions concerning particular instances of negligence on other occasions in an improper attempt to establish plaintiff’s general character for carelessness and recklessness in driving. Even the plaintiff’s own testimony on cross-examination may not be used “to nullify the long established rule of practice shown above that negligence cases arising from automobile collisions are tried only on the negligence or non-negligence of the operators at the time and place involved in the controversy.” Grannemann v. Salley, 95 Ga. App. at 779.

Those cases cited by defendant in which evidence of the fixed and uniform habit of a deceased person in a particular situation has been ruled admissible to establish what the person was doing at the time of death are inapposite. See, e.g., Carswell v. State, 171 Ga. App. 455, 459 (4) (320 SE2d 249) (1984), disapproved on other grounds, Adcock v. State, 260 Ga. 302 (392 SE2d 886) (1990); Sams v. Gay, 161 Ga. App. 31, 32 (1) (288 SE2d 822) (1982); Stripling v. Godfrey, 143 Ga. App. 742 (2) (240 SE2d 145) (1977). In such cases, unlike the case at hand, the actor is unavailable to testify concerning his behavior at the time of the incident on which the lawsuit arose. Moreover, in each of the cited cases, the evidence concerned the deceased party’s uniform habit in performing a particular act in a particular setting or situation. See Carswell v. State, supra (in which evidence of a decedent’s fixed and uniform habit of exiting his place of business in a certain direction and manner was admissible in a criminal prosecution for the decedent’s death); Sams v. Gay, supra (in which evidence was admitted that the decedent, who was intoxicated at the time he died in a fire at his home, habitually chain-smoked while drinking and on many occasions had passed out with a cigarette in his hand and burned holes in the furniture); Stripling v. Godfrey, supra (in which evidence was admitted to show the decedent, who was intoxicated and struck by a car in front of her home, had a habit of drunkenly stepping in front of approaching vehicles on the highway in front of her home). By contrast, the evidence at issue in this case concerned isolated instances of plaintiffs driving at different times and places. Evidence extending only to two or three instances of negligent conduct is inadmissible to show habitual negligence. East Tenn. &c. R. Co. v. Kane, 92 Ga. 187 (4) (18 SE 18) (1893). The evidence did not show that plaintiff had a fixed and uniform habit of speeding or weaving between cars. Thus, the evidence was not probative of whether his own negligence was the proximate cause of the collision at issue in this case and should not have been admitted due to its potential for prejudice. See Whidby v. Columbine Carrier, 182 Ga. App. at 638.

We also reject defendant’s argument that the evidence of plaintiffs habitual carelessness or recklessness was relevant and admissible to the issue of damages because it related to plaintiffs life expectancy and therefore was relevant to the calculation of his allegedly diminished earning capacity. The record shows defendant presented the evidence only on the issue of plaintiffs alleged contributory negligence and causation. Moreover, even if the evidence was relevant to the issue of damages, the proper procedure to avoid prejudice to the plaintiff on the issue of liability is a separate trial on the issue of damages after liability has been decided. See Chupp v. Henderson, 134 Ga. App. 808. We also reject defendant’s argument that the admission of plaintiff’s testimony on cross-examination concerning his prior driving record was at most harmless error because plaintiff failed to object to portions of the cross-examination or to the testimony of plaintiff’s mother that she was aware of his traffic violations. Plaintiff filed a motion in limine in an attempt to preclude reference to his driving record and even though the trial court denied his motion he again raised an objection when defendant’s attorney commenced his cross-examination concerning that record. Thus, plaintiff adequately preserved his objection to the evidence at issue in this appeal. “[Wjhere a motion in limine to exclude certain evidence is denied, the movant need not renew his objection when the disputed evidence is offered at trial, in order to preserve the movant’s right to appeal the denial of the motion.” Reno v. Reno, 249 Ga. 855 (1) (295 SE2d 94) (1982). See also Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284 (1) (260 SE2d 20) (1979).

Decided February 10, 1993.

Fleming & Blanchard, Danny L. Durham, Richard A. Ingram, Jr., Charles R. Sheppard, for appellant.

Dye, Tucker, Everitt, Wheale & Long, Duncan D. Wheale, for appellee.

Judgment reversed. Carley, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: Pope, Chief Jfidge.

license: Public Domain

text:
    A92A2024.
    PARKER v. THE STATE.
    (428 SE2d 452)
   Pope, Chief Jfidge.

In Count 1 of the accusation filed against him, defendant Luther Nathanial Parker was charged with driving under the influence of alcohol and in Count 2 he was charged with driving while his license was suspended. During the trial the judge directed a verdict in favor of defendant on Count 2 and the jury returned a guilty verdict on the DUI charge. The trial court, however, sentenced defendant on both counts. He appeals.

1. The State does not contest that the sentence on the charge for driving with a suspended license was improperly imposed and we reverse the sentence on that count of the accusation.

2. We have reviewed the trial transcript and reject defendant’s argument that the trial court erred in admitting evidence of the intoximeter test result because the State failed to lay a proper foundation for its admission. See Lattarulo v. State, 261 Ga. 124 (3, 4) (401 SE2d 516) (1991); McCann v. State, 158 Ga. App. 202, 203 (2) (279 SE2d 499) (1981). Thus, we affirm the conviction and sentence for DUI.

Decided February 10, 1993.

Little & Adams, Robert B. Adams, for appellant.

Jack O. Partain III, District Attorney, David W. McLeod, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part. Carley, P. J., and Johnson, J., concur.


author: Johnson, Judge.

text:
    A92A2039.
    In the Interest of M. C. A. B., a child.
    (427 SE2d 824)
   Johnson, Judge.

The parental rights of the mother and father of M. C. A. B. were terminated by a juvenile court order. The father appeals from that order; the mother does not appeal. The father contends that only the mother caused the child’s deprivation and therefore there was insufficient evidence to support the court’s findings under OCGA § 15-11-81 (b) (4) that lack of proper parental care or control by him is the cause of the child’s status as deprived and that such cause of deprivation is likely to continue or will not likely be remedied.

“[T]his court must construe the evidence most strongly to support a verdict and judgment, and every presumption and inference must be in favor thereof. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review is not met. The appropriate standard of appellate review is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody were lost.” (Citations and punctuation omitted.) In the Interest of J. R., 202 Ga. App. 418, 419 (414 SE2d 540) (1992). The evidence in the instant case, construed most strongly to support the judgment, shows that the mother is mentally retarded and the father is borderline mentally retarded. Their daughter, M. C. A. B., was placed with the Department of Family & Children Services (DFCS) as an emergency measure at the age of six months after the death of her twin sister in the parents’ home. The sister had been deceased for approximately 13 hours before authorities were notified of the death. Thereafter, the juvenile court found M. C. A. B. to be deprived and granted temporary custody of her to DFCS. Approximately nine months later, the court returned custody of M. C. A. B. to the parents because they had obtained a residence, completed parenting skills classes, were in counseling and were employed. During the next six months, however, DFCS received nine complaints from various people regarding alleged physical and emotional abuse of M. C. A. B. by the mother. The father was informed of all the allegations against the mother and told a DFCS caseworker about prior instances of abuse by the mother, including an attempt to smother the child with a pillow.

DFCS informed the father that it intended to seek legal custody of M. C. A. B. to prevent the mother from fleeing with or further abusing the child. Two days later, DFCS discovered that the father had violated a court order by moving his family out of their apartment without leaving a forwarding address. The family was located ten months later living in dirty and crowded conditions in Florida. The father testified that he fled to Florida with the child and the mother to prevent DFCS from taking the child away from him. He also described an incident of physical abuse in Florida, during which the mother violently shook the child in a bathtub. While in Florida, the mother threatened to kill herself and the child. The father and mother are now divorced, but have maintained some contact with each other. The father testified that if given custody of M. C. A. B., he would allow the mother to have supervised visitation with the child.

Reviewing this evidence in the light most favorable to the appellee, we conclude that a rational trier of fact could have found by clear and convincing evidence that the father’s lack of proper parental care and control has caused the child’s status as deprived and that this lack of care is likely to continue or not be remedied. The evidence shows that the father did not protect the child from the physical and emotional abuse of the mother even though he knew she was prone to violence and had harmed the child in the past. “Parental unfitness supporting a termination of parental rights can be caused either by intentional or unintentional misconduct resulting in abuse or neglect of the child or by what is tantamount to physical or mental incapacity to care for the child.” (Citations, punctuation and emphasis omitted.) In the Interest of B. R. S., 198 Ga. App. 561, 562 (1) (402 SE2d 281) (1991); see also In the Interest of B. H., 190 Ga. App. 131, 132 (1) (378 SE2d 175) (1989); In re D. C. & J. T. C., 176 Ga. App. 30 (335 SE2d 148) (1985). “A termination hearing seeks as a major concern the welfare of the child, with due regard for the rights of the parents. In determining the balance of the interests of the children against parental rights, the juvenile court is vested with broad discretion which will not be controlled on appeal in the absence of manifest abuse, where the ruling is supported by clear and convincing evidence.” (Citations and punctuation omitted.) In the Interest of J. R., supra at 424. Under the circumstances of the instant case, the juvenile court’s decision to terminate the father’s parental rights was not a manifest abuse of discretion and therefore will not be disturbed by this court.

Decided February 10, 1993.

Joseph C. Iannazzone, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Margot M. Cairnes, Staff Attorney, Cheeley & Chandler, Joseph E. Cheeley III, Melodie L. Snell, for appellee.

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.


author: Pope, Chief Judge.

text:
    A92A2154.
    PRICE v. THE STATE.
    (427 SE2d 830)
   Pope, Chief Judge.

Defendant Ronald Price was convicted of armed robbery and appeals.

1. The victim, a taxi driver, testified and identified defendant as the man who robbed him of his vehicle at gunpoint. In an effort to impeach the victim, defendant presented evidence that the victim initially gave a description of the perpetrator that was, in some particulars, inconsistent with defendant’s physical characteristics. In addition to the victim’s testimony, the evidence showed defendant was found asleep in the stolen vehicle four days after the theft and that a pistol was found in the vehicle. Defendant requested a charge on circumstantial evidence and argues the trial court erred in refusing to give it. We agree.

“Horne [v. State, 93 Ga. App. 345 (4) (91 SE2d 824) (1956)] stands for the proposition that if the jury could have found that the state’s witnesses had been impeached, such that it was left to determine the defendant’s guilt or innocence solely on the basis of circumstantial evidence in the case, the trial court must charge the law of circumstantial evidence.” Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991). In an effort to clarify confusion over the requirement for a charge on circumstantial evidence, the Supreme Court in Robinson announced a new rule: “that where the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request. This rule will apply whether or not the jury is authorized to find that the direct evidence presented by witness testimony has been impeached.” Id. at 699-700. In this case, both circumstantial and impeachment evidence were presented and the trial court thus erred in failing to instruct the jury, upon request, on the law of circumstantial evidence and in denying defendant’s motion for new trial on this ground. See Russ v. State, 204 Ga. App. 689 (420 SE2d 373) (1992).

Decided February 10, 1993.

Debra B. Randall, for appellant.

Lewis R. Slaton, District Attorney, Barry I. Mortge, Assistant District Attorney, for appellee.

2. We have examined defendant’s remaining enumerations of error, including defendant’s assertion that the evidence was insufficient to sustain his conviction, and find them meritless.

Judgment reversed. Carley, P. J., and Johnson, J., concur.


author: Carley, Presiding Judge.

text:
    A92A2159.
    SHAHEEN & COMPANY v. DICKSON et al.
    (427 SE2d 825)
   Carley, Presiding Judge.

The facts relevant to the resolution of the instant appeal are as follows: Appellant-plaintiff leased commercial premises to appelleedefendants. Thereafter, appellees abandoned the premises and ceased to make rent payments to appellant. Appellant brought suit, seeking to recover the past due rent. Appellees answered and, after discovery, appellant moved for summary judgment. Appellees opposed the motion on the ground that appellant had failed to show that it had mitigated damages by reletting the premises after the abandonment. Although the trial court found that the lease was valid and that appellees were in breach thereof through their abandonment of the premises and failure to pay rent, it denied appellant’s motion for summary judgment on the ground that a genuine issue of material fact remained as to appellant’s mitigation of its damages. The trial court certified its order for immediate review and appellant appeals pursuant to this court’s grant of its application for an interlocutory appeal.

“[Assuming mitigation of damages was requiredf,]” appellees would have the burden of proof as to that issue at trial, but, on summary judgment, appellant would have the burden of establishing that no genuine issue of material fact remained as to that issue. (Emphasis supplied.) Lamb v. Decatur Fed. S & L Assn., 201 Ga. App. 583, 587 (2) (411 SE2d 527) (1991). It is clear, however, that mitigation of damages was not required. “[U]nlike some jurisdictions [,] Georgia does not require mitigation of damages in lease contracts. [Cit.] . . . ‘Abandonment by the tenant (as occurred in this case) permits the landlord under the terms of the lease to terminate the lease, or to enter and obtain another tenant holding the original tenant liable for any deficiency, or to permit the premises to remain vacant and collect the agreed rent each month.’ (Emphasis supplied.) [Cit.] The uncontroverted evidence of record shows that [appellant] . . . allowed the premises to remain vacant[, as it was authorized to do].” Lamb v. Decatur Fed. S & L Assn., supra at 586 (2).

Decided February 10, 1993.

Fred J. Hanna, for appellant.

W. Baer Endictor, for appellees.

It follows that the trial court erred in denying appellant’s motion for summary judgment. “ ‘[T]he general rule, that it is the duty of a party suffering from the breach of a contract to diminish, if possible, the damages, has no application to a contract of lease. . . .’” Peterson v. Midas Realty Corp., 160 Ga. App. 333, 334 (287 SE2d 61) (1981).

Judgment reversed. Pope, C. J., and Johnson, J., concur.


text:
    A92A2194, A92A2195.
    AVANS v. THE STATE (two cases).
    (427 SE2d 826)
   Carley, Presiding Judge.

Appellants, who are husband and wife, were tried jointly before a jury and found guilty of possession of marijuana with intent to distribute. The trial court entered judgments of conviction and sentences on the jury’s guilty verdicts and appellants filed separate notices of appeal. The two appeals are hereby consolidated for disposition in this single opinion.

1. Only Mr. Avans enumerates the general grounds.

“Contrary to [Mr. Avans’] argument that no evidence showed he had knowledge of the contraband or the power or intention to control it, and that it could have been the property of someone else . . . , [about one-half pound of marijuana] was found in the closet of his bedroom [, which Mr. Avans admittedly used,] and consequently [there is evidence that] he had at least joint constructive possession of the contraband, along with his wife. . . . ‘We must view the evidence in a light most favorable to the verdict and, in doing so, we conclude that the evidence was sufficient to exclude every reasonable hypothesis save ([Mr. Avans’]) guilt and that any rational trier of fact could have found ([Mr. Avans]) guilty beyond a reasonable doubt. (Cits.)’ [Cit.]” (Emphasis in original.) Jackson v. State, 188 Ga. App. 834, 838 (4) (374 SE2d 777) (1988). See also Luke v. State, 178 Ga. App. 614, 615 (1) (344 SE2d 452) (1986); Barnes v. State, 175 Ga. App. 621 (1) (334 SE2d 205) (1985); Anderson v. State, 166 Ga. App. 459, 460 (3) (304 SE2d 550) (1983).

2. Both appellants contend that they were denied effective assistance of trial counsel because witnesses were not called to testify to their good character.

The record does contain the affidavit of one witness who was subpoenaed and present at the trial and would have testified to appellants’ good character. Compare Ponder v. State, 201 Ga. App. 388, 389 (1) (411 SE2d 119) (1991). However, “there is no indication in the record on appeal as to whether [the failure to call this witness] reflects some deficiency on the part of trial counsel. . . . For example, trial counsel may have been reluctant to introduce evidence which . . . may have [deprived appellants of the right to open and conclude the argument to the jury. See OCGA §§ 17-8-71; 24-9-20 (c)]. Tactical decisions are the exclusive province of the lawyer after consultation with his client. [Cit.]” Scapin v. State, 204 Ga. App. 725 (420 SE2d 385) (1992). What the record does indicate is that the failure to call the character witness was indeed a trial tactic rather than a deficiency. It shows that trial counsel was relying upon appellants’ own testimony to raise the good character defense. See Chastain v. State, 200 Ga. App. 473 (1) (408 SE2d 421) (1991); Braddy v. State, 172 Ga. App. 386, 389 (2) (323 SE2d 219) (1984), aff’d 254 Ga. 366 (330 SE2d 338) (1985). Employing this tactic, trial counsel would be able to raise appellants’ good character defense without foregoing the right to opening and closing argument.

“When there is nothing in the record to support the contention of error, there is nothing presented for appellate review. [Cit.] Any transcript ... of the hearing on [appellants’] motions for new trial . . . [is] absent from the record on appeal. The only evidence in the record on [this point] is the [affidavit mentioned above], submitted by [appellants] in support of [their] post trial motions.” Scapin v. State, supra at 725-726. Appellants have “ ‘ “made no affirmative showing that the purported deficiencies in [their] trial counsel’s representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy.” (Cit.)’ [Cit.]” Ponder v. State, supra at 389 (1). “The evidence of record was not sufficient to compel a finding that trial counsel’s performance was deficient or that any deficiency of trial counsel prejudiced the defense. The trial court’s finding that [appellants were] afforded effective assistance of counsel must be upheld since it is not clearly erroneous. [Cit.]” Scapin v. State, supra at 726.

3. “Although appellants’] trial counsel filed [an omnibus motion incorporating] several pre-trial motions, a motion to suppress the [marijuana] found in [Mrs. Avans’ pickup truck] at the time [appellants’ home was searched] was not one of them. The failure to have filed such a motion is urged as demonstrating that appellant[s’] Sixth Amendment rights were violated. The question of whether the admission of reliable-but-illegally seized evidence can ever satisfy the ‘prejudice’ component of the requisite test for ineffectiveness claims appears to be [still] unresolved. [Cit.] However, it is clearly settled that the mere ‘failure to file a suppression motion does not constitute per se ineffective assistance of counsel. . . .’ [Cit.] The record in the instant case clearly shows that if the [marijuana] seized from [Mrs. Avans’ truck] had ‘been suppressed, the State under the evidence in this case would still have proven each and every essential allegation of the crime alleged. . . .’ [Cit.]” Ponder v. State, supra at 390 (2). This is true because appellants make no contention that a larger amount of marijuana found in the bedroom closet or the two sets of triple beam scales found in the kitchen should have been suppressed. Thus, even though a motion to suppress the marijuana found in Mrs. Avans’ truck may have been meritorious (see Landers v. State, 250 Ga. 808 (301 SE2d 633) (1983)), the failure to have filed such a motion clearly does not satisfy “the ‘prejudice’ component of the requisite test for ineffectiveness claims. . . .” Ponder v. State, supra at 390 (2).

Decided February 10, 1993.

Cook & Palmour, L. Branch Connelly, for appellant (case no. A92A2194).

Cook & Palmour, W. Benjamin Ballenger, for appellant (case no. A92A2195).

Ralph L. Van Pelt, Jr., District Attorney, Christopher A. Arnt, Assistant District Attorney, for appellee.

4. In this case, trial counsel’s joint representation of both appellants did not result in a denial of Mr. Avans’ right to effective assistance of counsel. Ward v. State, 195 Ga. App. 166 (1) (393 SE2d 21) (1990). Mr. Avans’ defense was fully presented and Mrs. Avans’ testimony was exculpatory of her husband. See Barnes v. State, 160 Ga. App. 232, 233 (286 SE2d 519) (1981).

Judgments affirmed. Pope, C. J., and Johnson, J., concur.


text:
    A92A2240.
    HUTCHERSON v. VANGUARD EXTERMINATORS, INC.
    (427 SE2d 828)
   Johnson, Judge.

John Hutcherson appeals from the trial court’s order dismissing his complaint against Vanguard Exterminators, Inc., because it was not filed within the two-year statute of limitation set forth in OCGA § 9-3-33. Hutcherson contends that the court erred in finding that the facts alleged in his complaint state only a tort claim and not a breach of contract claim. In his complaint, Hutcherson alleges that he entered into a contract to purchase a house. The contract required the sellers of the house to furnish a letter from an exterminating company stating that the house is free and clear of termites and other wood-destroying organisms. The sellers obtained the services of Vanguard, which inspected the house and issued a certificate stating that the structure was not infested by termites or beetles. Hutcherson relied on the certificate issued by Vanguard in purchasing the house. After the purchase, Hutcherson discovered structural damage to the property due to termite infestation.

Decided February 10, 1993.

Roger L. Curry, for appellant.

“When examining a complaint, courts are compelled to determine whether the facts alleged state a claim for relief under which the plaintiff may recover. It is not necessary that the complaint be perfect in form or set out all of the issues with particularity, it is necessary only to place a defendant on notice of the claim against him.” (Citations and punctuation omitted.) Baker v. A. G. Edwards &c., 199 Ga. App. 758, 759 (406 SE2d 87) (1991). Here, the court correctly found that the facts alleged by Hutcherson set forth a tort claim and that the statute of limitation had run on such a claim. The court erred, however, in finding that those same facts do not also constitute a breach of contract claim. “It is axiomatic that a single act or course of conduct may constitute not only a breach of contract but an independent tort as well.” (Citations and punctuation omitted.) Getz Svcs. v. Perloe, 173 Ga. App. 532, 534 (2) (327 SE2d 761) (1985). Hutcherson’s allegations support a breach of contract claim based on his privity to the contract between the sellers and Vanguard for inspection of the house. Perloe v. Getz Exterminators, 163 Ga. App. 397 (294 SE2d 640) (1982). Although Hutcherson, in his complaint, does not specifically state that the basis of his claim is his privity to such a contract, the complaint does adequately place Vanguard on notice of such a claim. Judging the pleading by its function and substance, we find that it states a breach of contract claim. See generally Chan v. W-East Trading Corp., 199 Ga. App. 76, 77 (4) (403 SE2d 840) (1991). Because the six-year statute of limitation on this contract claim has not expired, the trial court erred in dismissing the complaint. OCGA § 9-3-24.

Judgment reversed. Pope, C. J., and Carley, P. J., concur.

Howe & Dettmering, W. O’Neal Dettmering, Jr., for appellee.


text:
    A92A2251.
    FIRST NATIONAL BANK OF POLK COUNTY, COPPERHILL, TENNESSEE v. CHARUHAS.
    (427 SE2d 831)
    Decided February 10, 1993.

      David E. Ralston, for appellant.
   Carley, Presiding Judge.

Appellee-defendant is the holder of a first deed to secure debt in the principal amount of $31,680. Appellant-plaintiff is the holder of a second deed to secure debt in the principal amount of $150,000. Subsequent to the recording of appellant’s second security deed, appellee loaned the debtor an additional $25,000. Appellant initiated the instant declaratory judgment action, seeking a declaration that appellee’s first security deed secured only the original $31,680 debt. Appellee answered, asserting that her first security deed secured not only the original $31,680 debt, but also the subsequent $25,000 debt. After a bench trial, the trial court entered judgment declaring that appellee’s first security deed secured both the original $31,680 debt and the subsequent $25,000 debt. It is from that judgment that appellant brings the instant appeal.

Appellee’s first security deed contains an “open-end” or dragnet clause. Such clauses are effective as to subsequent “other debts or obligations arising ex contractu . . . between the original parties to the security instrument.” OCGA § 44-14-1 (b). Appellee and the debtor are original parties to appellee’s first security deed. Compare Edmonds v. Carver State Bank, 205 Ga. App. 774 (423 SE2d 685) (1992). It follows that the subsequent $25,000 debt is secured by virtue of the “open-end” clause contained in appellee’s first security deed. Appellant could have denied appellee the benefit of the “open-end” clause if appellant’s second security deed had “been filed for record and actual notice [there] of . . . [had] been given to [appellee, as] the holder of [the first security deed containing the ‘open-end’ clause].” (Emphasis supplied.) OCGA § 44-14-2 (b). Although appellant recorded its second security deed and thereby gave constructive notice to appellee, it is undisputed that appellant did not give appellee actual notice of its second security deed. Since appellant failed to limit the effectiveness of the “open-end” clause contained in appellee’s first security deed, it follows that the trial court correctly entered a declaratory judgment in appellee’s favor.

Judgment affirmed. Pope, C. J., and Johnson, J., concur.

Albert F. Taylor, Jr., for appellee.


text:
    A92A2255.
    GIVINS v. THE STATE.
    (428 SE2d 452)
    Decided February 10, 1993.

      Richard O. Ward, for appellant.

      Michael C. Eubanks, District Attorney, Richard E. Thomas, Stacey R. Fasten, Assistant District Attorneys, for appellee.
   Carley, Presiding Judge.

After a jury trial, appellant was found guilty of armed robbery and possession of a firearm during the commission of certain crimes. Judgment was entered on the jury’s guilty verdicts and appellant moved for a new trial. The trial court’s denial of appellant’s motion for new trial was filed in the clerk’s office on March 20, 1992. Appellant’s notice of appeal was filed in the clerk’s office on April 21, 1992.

“Although the 30-day period for filing a notice of appeal allowed by OCGA § 5-6-38 (a) ended on [April 19, 1992], that date was a [Sunday]. By operation of OCGA § 1-3-1 (3), appellant had through the following Monday, [April 20, 1992], to file a timely notice of appeal. While the notice of appeal is dated [April 17, 1992], it was not filed until [April 21, 1992]. Timely filing is the necessary act; without it, this court is without jurisdiction and the appeal must be dismissed. [Cit.]” Standi v. Kendrix, 189 Ga. App. 909 (378 SE2d 417) (1989). See also State v. Dixon, 194 Ga. App. 146 (2) (390 SE2d 600) (1990).

Appeal dismissed. Pope, C. J., and Johnson, J., concur.


text:
    A92A2429.
    SCOTT v. THE STATE.
    (427 SE2d 832)
   Johnson, Judge.

Carl Andre Scott appeals from his convictions of aggravated sodomy, aggravated child molestation, rape and child molestation. Scott argues that the court erred in denying his motion for a new trial based on insufficient evidence because of conflicts in the testimony.

“It is the function of the jury to determine the credibility of the. witnesses. The jurors must weigh and resolve any conflicts presented by the evidence. The appellate court must view the evidence in the light most favorable to the jury’s verdict.” (Citation and punctuation omitted.) Hargrove v. State, 202 Ga. App. 854, 857 (3) (415 SE2d 708) (1992). The State presented Scott’s thirteen-year-old daughter, who testified that Scott had molested her for approximately six years, starting when she was six years old. She testified that on numerous occasions her father forced her to engage in sexual intercourse and oral sex with him. A police detective, the victim’s mother, the victim’s friend and the friend’s aunt all testified that the victim told them that Scott had molested her. A doctor specializing in the diagnosis and treatment of sexual abuse victims testified that she examined the victim, that the victim’s vagina showed evidence of penile penetration and that the victim had a vaginal discharge containing a bacteria that primarily results from sexual activity. A child therapist testified that the victim’s behavior was consistent with the child sexual abuse accommodation syndrome.

Decided February 10, 1993.

Michael M. Sheffield, for appellant.

Robert E. Wilson, District Attorney, Elizabeth W. Morn, Anne G. Maseth, Robert M. Coker, Assistant District Attorneys, for appellee.

Scott presented a pediatric nurse who testified that her examination of the 12-year-old victim showed that it was unlikely that there had been any penile penetration of her vagina. The victim’s brother testified that his sister lied and that she had never told him about any abuse by their father. Scott’s sister-in-law testified that the victim said that she had been molested by someone, but denied that it had been her father. Scott denied that he ever molested his daughter.

Reviewing the evidence in the light most favorable to the jury’s verdict, we conclude that a rational trier of fact could have found Scott guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The trial court did not err in denying Scott’s motion for a new trial.

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.


text:
    A92A1713.
    MOULDER v. THE STATE.
    (427 SE2d 793)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of armed robbery. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. At trial, the victim identified appellant as one of the two men who had robbed her at gunpoint. The State also adduced circumstantial evidence of appellant’s identity as one of the perpetrators. It follows that appellant’s enumeration of the general grounds is without merit. The evidence was sufficient to authorize any rational trior of fact to find proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Relying upon the original transcript, appellant enumerates the trial court’s charge on circumstantial evidence as error. Pursuant to the trial court’s directive, however, a corrected transcript has been filed. See Cagle v. Atchley, 127 Ga. App. 668, 670 (1) (194 SE2d 598) (1972). As corrected, the transcript shows that the trial court’s charge on circumstantial evidence is not an erroneous statement of the law. Accordingly, this enumeration of error is without merit.

3. Appellant moved to suppress evidence which was found in a post-arrest inventory of his automobile. The denial of this motion is enumerated as error.

At the time of his arrest, appellant was living on leased premises in a remote location in the mountains. The mere fact that appellant’s automobile was parked on the leased premises would not demand the grant of the motion to suppress and, considering the testimony as to remoteness of the area and the absence of any safeguards, the trial court was clearly authorized to find that “ ‘[t]he officers’ action in immediately taking custody of the car [was] the prudent thing to do.’ [Cit.]” Mooney v. State, 243 Ga. 373, 376 (1) (254 SE2d 337) (1979). Moreover, after the arrest, appellant’s lessor had expressed his desire to have the vehicle removed from the premises and, in fact, actually assisted in its removal. “Considering the circumstances of appellant’s arrest, [the lessor’s] request to the police to remove the car and the police department’s policy regarding the removal of property for safekeeping, ‘ “the trial court’s finding that the impoundment of (appellant’s) car was lawful is supported by the evidence and will not be disturbed on appeal.” (Cits.)’ [Cit.]” Fitzgerald v. State, 201 Ga. App. 361, 364 (3) (411 SE2d 102) (1991).

4. Appellant enumerates as error the admission into evidence of a “mugshot” which had been taken of him in 1982, some six years prior to his alleged commission of the instant armed robbery.

Appellant’s identity as the perpetrator of the offense was at issue. Accordingly, his appearance at the time of the offense was obviously a relevant inquiry. Before admitting the photograph, the trial court heard testimony from a witness who identified it as an accurate depiction of appellant’s appearance at the time of the armed robbery, with the exception that appellant’s hair “may not have been quite that long. . . .” See Bradshaw v. State, 172 Ga. App. 330 (1) (323 SE2d 253) (1984). Compare Trammell v. Matthews, 86 Ga. App. 661, 671 (5) (72 SE2d 132) (1952). The trial court also ordered that the photograph be cropped so that nothing on its face would apprise the jury that it had been taken in connection with appellant’s arrest on an unrelated prior offense. Flanagan v. State, 193 Ga. App. 408, 409 (1) (388 SE2d 29) (1989). Accordingly, there was no error in admitting the photograph into evidence.

Decided January 29, 1993

Reconsideration denied February 11, 1993

William L. Reilly, for appellant.

Roger Queen, District Attorney, J. Roger Thompson, Assistant District Attorney, for appellee.

5. There is no violation of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963) where, as here, allegedly exculpatory evidence was disclosed during the trial. Whatley v. State, 197 Ga. App. 489, 490 (3) (398 SE2d 807) (1990).

6. Evidence regarding the circumstances of appellant’s arrest was admissible, “even though it may incidentally show the commission of another crime. [Cits.]” McFadden v. State, 171 Ga. App. 447, 448 (1) (319 SE2d 878) (1984). See also Denegal v. State, 193 Ga. App. 238, 239 (2) (387 SE2d 434) (1989); Fuqua v. State, 183 Ga. App. 414, 418 (1c) (359 SE2d 165) (1987).

7. The remaining enumeration of error concerns the trial court’s exclusion of certain evidence as irrelevant to the issue of appellant’s identity as one of the perpetrators. This enumeration has been considered and found to be without merit.

Judgment affirmed. Pope, C. J., and Johnson, J., concur.


text:
    A92A1875.
    DYNIN et al. v. HALL et al.
    (428 SE2d 89)
   Carley, Presiding Judge.

The facts relevant to resolution of the instant appeal are as follows: Appellant-plaintiffs’ decedent took an overdose of prescription drugs and was hospitalized. Some 17 days later, she died. As the result of the death, appellants filed this medical malpractice suit against appellee-defendants. Appellees answered and sought discovery relating to the decedent’s recent psychiatric treatment. Appellants opposed discovery relating to this issue. After conducting a hearing, the trial court held that all material relating to the decedent’s psychiatric treatment, including the communications between the decedent and her psychiatrist, were discoverable. However, the trial court certified its order for immediate review and appellants applied for an interlocutory appeal. The instant appeal results from the grant of appellants’ application.

1. “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. . . .” (Emphasis supplied.) OCGA § 9-11-26 (b) (1). Psychiatric records are not absolutely privileged. See Donalson v. State, 192 Ga. App. 37, 38 (2) (383 SE2d 588) (1989). However, communications between a psychiatrist and patient are absolutely privileged and that privilege must be waived as a pre-condition of discovery. OCGA § 24-9-21 (5); Freeman v. State, 196 Ga. App. 343 (396 SE2d 69) (1990).

2. Pursuant to OCGA § 24-9-40, the psychiatrist-patient privilege may not be deemed waived simply because the patient’s “care and treatment or the nature and extent of his injuries [have been put] at issue in any civil or criminal proceeding.” See Wilson v. Bonner, 166 Ga. App. 9, 16 (5) (303 SE2d 134) (1983). Compare Boggess v. Aetna Life Ins. Co., 128 Ga. App. 190, 192 (3) (196 SE2d 172) (1973) (discussing waiver prior to enactment of OCGA § 24-9-40).

3. In Bobo v. State, 256 Ga. 357 (349 SE2d 690) (1986), four Justices of the Supreme Court did not agree that the psychiatrist-patient privilege could be abrogated by a showing of “necessity.” But see Brown v. State, 261 Ga. 66, 71 (5e) (401 SE2d 492) (1991). In any event, Bobo has no application in the instant case. That decision “is a plurality opinion holding that the statutory psychiatrist-patient evidentiary privilege must yield to a criminal defendant’s constitutional right of confrontation, upon ‘a showing of necessity, that is, that the evidence in question is critical to his defense and that substantially similar evidence is otherwise unavailable to him.’ [Cit.]” (Emphasis supplied.) Salley v. State, 199 Ga. App. 358, 361 (2b) (405 SE2d 260) (1991). “Although the Supreme Court set up a balancing test to determine those rare instances when the privilege must yield to a fundamental constitutional right, the present civil dispute does not fall within the purview of [Bobo v. State, supra]. [Cit.]” (Emphasis supplied.) Aetna Cas. &c. Co. v. Ridgeview Institute, 194 Ga. App. 805, 806 (1) (392 SE2d 286) (1990). The present civil dispute is governed by the Civil Practice Act. The privilege afforded psychiatrist-patient communications is “absolute, and if a matter is privileged it is not discoverable [under the Civil Practice Act].” Atlantic Coast Line R. Co. v. Daugherty, 111 Ga. App. 144, 149 (1) (141 SE2d 112) (1965).

4. Even if Bobo were applicable in the instant civil case, appellees have nevertheless failed to make the requisite showing so as to authorize discovery of privileged psychiatrist-patient communications.

The privileged communications are certainly not “critical” to appellees’ defense of the allegations that their malpractice caused the death of the decedent. Indeed, they are not even relevant to appellees’ defense of those allegations. It is undisputed that, prior to her hospitalization, the decedent had taken an overdose of prescription drugs. Whether that pre-existing condition arose accidentally or intentionally would have no material bearing whatsoever on whether the decedent’s eventual death was the actionable result of appellees’ alleged subsequent malpractice. Martin v. Reed, 200 Ga. App. 775, 776 (5) (409 SE2d 874) (1991); Overstreet v. Nickelsen, 170 Ga. App. 539, 540 (1) (317 SE2d 583) (1984). The death was either the inevitable result of the decedent’s previous ingestion of drugs or it was proximately caused by appellees’ subsequent malpractice. If the death was the inevitable result of the drug overdose, the decedent was responsible for her own death and appellees are not liable regardless of whether the drugs were taken accidentally or intentionally. If, however, the death was the result of appellees’ subsequent malpractice, appellees’ liability would not be obviated merely because the decedent’s pre-existing condition was caused by a failed suicide attempt rather than an accidental drug overdose. Appellees can meet their burden of proof by demonstrating that the death was not the proximate result of their alleged subsequent malpractice, but the proximate result of the decedent’s pre-existing condition, without regard to how that condition arose. See Kirby v. Spivey, 167 Ga. App. 751, 755 (3) (307 SE2d 538) (1983).

Appellees urge that even if the privileged communications are not relevant to their defense, those communications are still discoverable as relevant to the extent of their liability for malpractice. According to appellees, the decedent’s mental state is a factor to be considered in determining the full value of her life and the privileged communications would constitute the most objective evidence of her mental state. It is obvious, however, that in any action, the actual communications between a psychiatrist and a patient would be relevant to the patient’s mental state and would constitute the most objective evidence thereof. Nevertheless, the legislature has clearly expressed its intent that, as a matter of public policy, psychiatrist-patient communications are to be privileged and are to remain privileged even though the patient’s “care and treatment or the nature and extent of his injuries [have been put] at issue in any civil or criminal proceeding.” OCGA § 24-9-40. To hold that communications between the deceased and her psychiatrist have lost their privileged character and are discoverable merely because they are the most objective evidence of the relevant issue of the decedent’s mental state would contravene the legislature’s express intent. Bobo requires a showing “that substantially similar evidence is otherwise unavailable. . . .” Bobo v. State, supra at 360 (4). Here, as in Wilson v. Bonner, supra at 16 (5), appellees may have shown that no more objective evidence of the decedent’s mental state is available. However, that is not the equivalent of showing the unavailability of “substantially similar evidence” which would serve to illustrate the mental state of the decedent.

Decided January 29, 1993

Reconsideration denied February 11, 1993

Thomas W. Bennett, Samuel G. Alderman III, for appellants.

Newton, Smith, Durden & Kaufold, Wilson R. Smith, Bouhan, Williams & Levy, James M. Thomas, Joseph A. Mulherin III, for appellees.

5. The trial court’s order is reversed insofar as it holds that privileged communications between the decedent and her psychiatrist are discoverable by appellees. The trial court’s order is affirmed insofar as it allows appellees to proceed with discovery of non-privileged evidence relevant to the decedent’s mental state. See Aetna Cas. &c. Co. v. Ridgeview Institute, supra at 805 (1); Annandale At Suwanee v. Weatherly, 194 Ga. App. 803 (392 SE2d 27) (1990).

Judgment affirmed in part and reversed in part. Pope, C. J., and Johnson, J., concur.


text:
    A92A2064.
    THE STATE v. BETHUNE.
    (427 SE2d 795)
   Carley, Presiding Judge.

Appellee was charged with giving a false statement in violation of OCGA § 16-10-20 and possession of marijuana with intent to distribute. He filed a motion to suppress the marijuana, which had been found in a search of his home conducted pursuant to a search warrant. The trial court granted this motion, and the State appeals.

1. The State relies, in part, upon the good faith exception of United States v. Leon, 468 U. S. 897 (104 SC 3405, 81 LE2d 677) (1984). However, the Supreme Court of Georgia has recently held that, under OCGA § 17-5-30, this exception is not applicable in Georgia. Gary v. State, 262 Ga. 573 (422 SE2d 426) (1992).

2. The State also urges that the sufficiency of the warrant is irrelevant, because the search was the valid result of appellee’s waiver of his Fourth Amendment rights. In this regard the State relies upon the following, which had been made a condition of appellee’s probation in a previous case: “Defendant shall submit defendant’s person, premises, or motor vehicle to search by any law enforcement officer at any time without the necessity of a search warrant, and defendant agrees and consents that any evidence seized shall be admissible in any Court as evidence against defendant without objection.”

While implicitly “acknowledging that conditions of probation requiring consent to searches without probable cause are valid as a general matter, [appellee] argues that the search in this case was illegal despite [this condition of his probation] because it was conducted by law enforcement officers without the involvement of a probation supervisor. [The condition] specifically states, however, that the . . . search may be ‘by . . . any law enforcement officer.’ . . . [T]he lack of a probation officer’s involvement in this case does not render [the condition] inapplicable or the search illegal. . . . [Appellee] further contends that the search was illegal because it was conducted in bad faith, for purposes of harassment[, and not for purposes of monitoring his compliance with the terms of his probation]. [Cit.] . . . ‘Although the (search) at issue in the present case was not made as a routine incident of the probation supervision process ... , it is apparent without dispute from the record that it was prompted by a good-faith suspicion, arising from routine police investigative work, that the [appellee] was dealing in drugs, rather than by a desire to harass him.’ [Cit.] . . . Accordingly, the trial court . . . err[ed] in [granting appellee’s] motion to suppress. . . .” (Emphasis in original.) Hancock v. State, 205 Ga. App. 890 (424 SE2d 77) (1992).

Decided January 29, 1993

Reconsideration denied February 11, 1993.

Ralph L. Van Pelt, Jr., District Attorney, for appellant.

Christopher A. Townley, for appellee.

Judgment reversed. Pope, C. J., and Johnson, J., concur.


text:
    A92A1781.
    TAYLOR et al. v. GEORGIA INTERNATIONAL LIFE INSURANCE COMPANY.
    (427 SE2d 833)
   Johnson, Judge.

Mary Adams applied for credit life insurance with Georgia International Life Insurance Company through her creditor and mortgage holder, Trust Company Bank. In the medical history section of her written application, Adams was asked: “Have you ever had . . . Heart or Cardiovascular Disease,. . . ?” Adams answered “no.” She was also asked whether she had consulted a physician for other diseases, illnesses, or operations not previously disclosed in the application. Adams answered “yes,” and, in the space provided for details in explanation, Adams wrote that she had an eye biopsy in 1988 and that all was “OK.”

Georgia International issued the credit life insurance policy. The policy expressly provided that the contract of insurance was comprised of the policy, the written application of the policyholder, and other documents.

Adams died of a massive intercerebral hemorrhage within nine months of the issue date of the policy. Trust Company Bank, the policyholder, submitted a claim for benefits under the policy in the amount of $20,331.14. As a result of the claim, Georgia International conducted a routine investigation, requesting medical records from Adams’ treating physicians. These records indicated that Adams had a history of congenital heart disease, specifically “mitral valve prolapse with mild mitral regurgitation,” which had been diagnosed four years prior to the application for credit life insurance. Georgia International refused to pay benefits under the policy because the application Adams submitted contained material misrepresentations and omissions of fact.

Appellants, administrators of Adams’ estate, sued Georgia International seeking recovery of policy benefits. Georgia International answered denying that any benefits were due, and counterclaimed seeking rescission of the insurance certificate. The trial court granted summary judgment to Georgia International and this appeal resulted.

In three enumerations of error which are substantially similar, appellants contend that the trial court erred in granting Georgia International’s motion for summary judgment, arguing that Adams completed the insurance application in good faith, that there were genuine issues of material fact as to whether appellee would have issued the policy even if Adams’ medical condition had been fully revealed in the application, and arguing that there was no misrepresentation, incorrect statement, or omission in the application which would preclude recovery. We disagree.

Misrepresentations, incorrect statements, or omissions of fact on an insurance application do not prevent recovery under the policy unless (1) fraudulent; (2) material either to acceptance of the risk or the hazard assumed; or (3) the insurer in good faith would not have issued the policy if the true facts had been known to the insurer. See OCGA § 33-24-7 (b). In determining whether Adams’ application contained misrepresentations which would prevent a recovery under the policy, it is immaterial whether the applicant acted in good faith in completing the application. Davis v. John Hancock Mutual Life Ins., 202 Ga. App. 3, 5 (1) (413 SE2d 224) (1991). To preclude the applicant from recovering under the policy, “the insurer need only show that the representation was false and that it was material in that it changed the nature, extent, or character of the risk.” (Citation omitted.) Id.

That Adams suffered from mitral valve prolapse with associated arrhythmias prior to the time she applied for credit life insurance and that she continued treatment through the time of her death is not disputed. This information was not provided in her application for credit life insurance despite specific questions requesting such information. The affidavit of Hilda Lee, the Supervisor in the Credit Claims Department of Georgia International, established that these incorrect statements were material to company’s acceptance of the risk and further established that the certificate of insurance would not have been issued had the true facts of her heart disease been known to the company. There is no evidence in the record to refute this affidavit or to create a genuine issue of material fact concerning the effect of Adams’ misrepresentation and her omission of important medical information regarding her history and treatment from her application.

Decided February 11, 1993.

Russell & Herrera, Dorothea L. Russell, Thomas F. Tierney, for appellants.

Fortson & White, Michael D. St. Amand, Frederick W. Ajax, Jr., for appellee.

“ ‘Ordinarily it is a jury question as to whether a misrepresentation is material, but where the evidence excludes every reasonable inference except that it was material, it is a question of law for the court. . . .’ [Cit.]” Miller v. Nationwide Ins., 202 Ga. App. 737, 738 (415 SE2d 700) (1992).

We have examined the entire record in this case and, contrary to the appellants’ assertions, find no conflicting evidence sufficient to create an issue for the jury. Furthermore, because the uncontroverted evidence established conclusively that the insurer would not have issued the subject policy had it been aware of Adams’ history of heart disease and ongoing treatment, a finding that the medical history and treatment omissions from and the incorrect statements in the application were material to the acceptance of the risk was required. Accordingly, the trial court did not err in granting summary judgment to Georgia International.

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.


author: Blackburn, Judge.

text:
    A92A1809.
    RICH v. THE STATE.
    (427 SE2d 796)
   Blackburn, Judge.

Raymond Dale Rich was convicted by a jury of three counts of sodomy of his fourteen-year-old nephew (hereinafter, “the nephew”), and thereafter was convicted by the trial court of one count of recidivism, OCGA § 17-10-7 (b). He appeals from the denial of his motion for new trial.

Rich was convicted of one count of anally sodomizing his nephew, one count of being anally sodomized by his nephew, and one count of orally sodomizing his nephew. According to the nephew, these acts of sodomy occurred during a single incident on a weekend when the nephew was staying with his mother at her mobile home.

The nephew is mentally retarded and suffers from epilepsy, and according to his father he takes medication for the epilepsy “[p]robably in the range of sixteen to eighteen pills a day”; however, no competency issue was raised by Rich. The nephew’s father and mother were divorced at the time of the subject incident, the mother having originally received custody of him at the time of the divorce, and custody having been changed to the father thereafter. The nephew lived with his father and Rich lived with the nephew’s mother (Rich’s sister), in her mobile home. According to the nephew, Rich committed the three acts of sodomy in the bedroom and bathroom while the nephew’s mother slept on the couch. The nephew testified that Rich “put his dick in my mouth,” and “then he put it up my butt.” The nephew described the incident to his father later that same weekend, on Sunday, July 21, 1991, and was taken to a hospital that day. At the hospital the nephew was interviewed by Jerry Smith, an investigator with the Whitfield County Sheriffs Department. Smith testified that “Jeremy said that Dale put his ‘narc’ up his butt and the [sic] Jeremy had put his ‘narc’ up Dale’s butt, and he calls the penis his ‘narc.’. . . Jeremy went on to state that ‘He pushed it up inside me with his hand.’ He also said Dale also put his ‘narc’ in his mouth and told him not to tell his daddy.” The examining physician testified that as a part of his medical history, the nephew told him that Rich had anally and orally sodomized him and that he had orally sodomized Rich. The physician further testified that his examination showed that the nephew had “fairly fresh” rectal fissures which in his opinion were consistent with some object having penetrated the anus from the outside “with some force” within 24 hours of the examination.

Before trial Rich had agreed to take a polygraph test, and that the results of same would be admissible upon the trial of the case. The polygraph examiner testified without objection that in his opinion, during the test Rich had given deceptive answers in response to questions about the incident. The nephew’s mother testified as a defense witness that although she was asleep at the time of the alleged incident, she had not noticed anything suspicious going on between Rich and the nephew. Rich testified at trial, and denied ever having engaged in sodomy with his nephew. After the jury returned its verdict finding Rich guilty of three counts of sodomy, the State introduced evidence that Rich had prior felony convictions, and the court then found Rich guilty on the recidivism count.

Decided February 1, 1993

Reconsideration denied February 15, 1993.

J. Tracy Ward, for appellant.

Jack O. Partain III, District Attorney, David W. McLeod, Assistant District Attorney, for appellee.

In his sole enumeration of error Rich contends that the trial court erred by denying his motion for new trial, arguing that the evidence was insufficient to support his conviction of the three acts of sodomy. One of his complaints in this regard is that the nephew’s testimony lacked specific details about the subject incident. In view of the nephew’s testimony that “[h]e put his dick in my mouth” and other similar testimony, this contention is without merit.

Rich further complains that the nephew’s credibility is suspect because none of the witnesses testified that the nephew had told them of the ten previous incidents in which Rich had sodomized him. Rich elicited testimony from the nephew, on cross-examination, that Rich had engaged in sodomy with him on approximately ten previous occasions and that he had not told his father or the investigating officer of such incidents. There was no further testimony or evidence concerning these prior incidents. A motion in limine by the State as to the past sexual conduct of the nephew had been consented to by Rich and granted by the court, but Rich was free under the terms of the order to show that he had been previously falsely accused of similar crimes by the nephew, which he failed to do.

Rich also urges that the nephew’s mental retardation should be taken into account in evaluating the nephew’s testimony. Rich further argues that, given the small size and the configuration of the mobile home, it is unlikely that the acts of sodomy would not have awakened the nephew’s mother. However, these questions pertain to the credibility of the witnesses and the weight to be accorded their testimony, which are matters in the sole province of the jury. Horne v. State, 204 Ga. App. 81, 82 (2) (418 SE2d 441) (1992); Brown v. State, 192 Ga. App. 864, 865 (1) (386 SE2d 734) (1989).

We hold that, construing the evidence in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find Rich guilty beyond a reasonable doubt of the three acts of sodomy. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.


text:
    A92A2136.
    GEORGIA BAPTIST CHILDREN’S HOMES & FAMILY MINISTRIES, INC. v. ESSEX INSURANCE COMPANY.
    (427 SE2d 798)
   Blackburn, Judge.

Essex Insurance Company (Essex) commenced this action against Georgia Baptist Children’s Homes and Family Ministries, Inc. (GBCH), seeking declaration of its rights and obligations under a comprehensive general liability insurance policy it issued to GBCH. The trial court eventually granted summary judgment for Essex as to Essex’s claims and several counterclaims asserted by GBCH, and denied GBCH’s motion for summary judgment. This appeal followed.

The record shows that GBCH, a not-for-profit corporation affiliated with the Georgia Baptist Convention, operated three homes for abused, minor children as part of its family care ministries. In late 1989, it engaged the services of The Integrity Group, a company whose principal business was risk and loss control, to obtain liability insurance regarding its operation of the children’s homes. Quotes for such a general liability insurance policy were obtained from Essex through the insurance agency of B. Jones & Associates, and eventually, effective December 16, 1989, Essex issued the policy in question.

In February 1991, GBCH was served with a complaint brought on behalf of a child who had been a ward at one of GBCH’s facilities from around November 1989 until August 1990, and by the parents of the child. The complaint alleged that the child had been attacked by other residents at the facility as a direct result of GBCH’s negligence in adequately protecting, supervising, controlling, and caring for the residents of the facility. In addition to compensatory damages, the plaintiffs sought punitive damages. Although the complaint did not specify, it is undisputed that the alleged attack suffered by the child was one of sexual abuse.

GBCH forwarded the complaint to Essex and requested defense and coverage as provided in the liability insurance policy. Essex subsequently filed for declaratory judgment that coverage for the claim was excluded under the policy.

1. The insurance policy, as originally received by GBCH, contained a short exclusion regarding sexual abuse. That exclusion provided that “it is agreed that such coverage as is provided by this policy shall not apply to any claim, demand and causes of action arising out of or resulting from either sexual abuse or licentious, immoral or sexual behavior intended to lead to, or culminating in any sexual act, whether caused by, or at the instigation of, or at the direction of, or omission by, the insured, his employees, patrons or any causes whatsoever.”

After its issuance of the policy to GBCH, Essex contacted B. Jones & Associates, indicated that the above sexual abuse exclusion was obsolete, and instructed the agency to replace it with a revised exclusion. In addition to excluding coverage of any claim arising out of the transmission of any communicable disease, this revised sexual abuse exclusion disallows coverage for any claim of negligent hiring, placement, training or supervision arising from sexual abuse, which would appear to exclude coverage for the claim asserted against GBCH. Essex contends that this revised exclusion formed part of the insurance policy, which GBCH disputes because it neither negotiated for nor received the revised exclusion. In opposition to Essex’s motion for summary judgment, GBCH submitted the affidavit of the principal with The Integrity Group, supporting GBCH’s claim that the revised exclusion had never been forwarded to it, and Essex failed to refute it.

An insurer may amend, correct, alter, or do anything toward determining and completing the terms of an insurance policy before it is delivered to the insured and made final, even though the policy bears a date preceding the actual delivery date. Utica Mut. Ins. Co. v. Dunn, 111 Ga. App. 795 (143 SE2d 425) (1965). However, any attempt by the insurer to modify the terms of the policy after issuance of that policy requires some consideration flowing to the insured. Adair v. American Liberty Ins. Co., 116 Ga. App. 805, 806 (2) (159 SE2d 174) (1967). In this case, Essex’s attempted revision of the sexual abuse exclusion represented an unauthorized unilateral modification of the insurance contract, and that revised exclusion may not be considered part of the policy.

The trial court, nevertheless, granted summary judgment for Essex and denied summary judgment for GBCH on the grounds that the short exclusion was unambiguous and excluded coverage for any causes of action arising out of an act of sexual abuse. GBCH contends that an ambiguity exists in the general concluding clause, “or any causes whatsoever,” contained in the short exclusion and that, when construed against the insurer, the exclusion does not apply to the type of claim asserted against GBCH by the former resident and her parents. We agree.

The language of the exclusion is capable of the construction suggested by Essex and approved by the trial court. However, “[w]ords, like people, are judged by the company they keep.” Anderson v. Southeastern Fidelity Ins. Co., 251 Ga. 556 (307 SE2d 499) (1983). Where the phrasing of an insurance policy is so confusing that an average policyholder cannot make out the boundaries of coverage, there is a genuine ambiguity. See Gary L. Shaw Builders v. State Auto Mut. Ins. Co., 182 Ga. App. 220, 224 (355 SE2d 130) (1987). In the instant case, the meaning of the exclusion’s concluding phrase, “or any causes whatsoever,” is far from clear.

Assigning the concluding phrase the expansive scope urged by Essex conflicts with a standard rule of construction. “It is a well-recognized rule . . . that when a statute or document enumerates by name several particular things, and concludes with a general term of enlargement, this latter term is to be construed as being ejusdem generis with the things specifically named; unless, of course, there is something to show that a wider sense was intended.” Beavers v. LeSueur, 188 Ga. 393, 403 (3 SE2d 667) (1939). Applying this rule of construction, the general clause, “any causes whatsoever,” would normally be understood to refer to persons of the same category as the named insured, its employees, or its patrons. We do not believe that children residents of GBCH’s facility may reasonably be included in the group of individuals specified in the exclusion.

In moving for summary judgment, Essex also asserted two other exclusions contained in the policy: one disallowing coverage for any claim for “bodily injury or property damage arising out of assault and battery or out of any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of the insured, his employees, patrons or any other person”; and one excluding “claims, accusations, or charges of negligent hiring, placement, training or supervision arising from actual or alleged assault or battery. ...” Essex contends that even if the sexual abuse exclusion did not serve to exclude coverage in this case, these two other exclusions pertaining to assault and battery would achieve that result. Had the policy not contained the specific exclusion regarding sexual abuse, Essex’s reliance upon the more general assault and battery exclusion would have been well placed. However, the inclusion of that specific exclusion precludes application of the assault and battery exclusion to determine coverage for any claims involving sexual abuse. “A limited or specific provision of a contract will prevail over one that is more broadly inclusive. [Cit.]” Holtzclaw v. City of Dalton, 189 Ga. App. 650, 652 (377 SE2d 196) (1988).

These additional exclusions regarding assault and battery actually bolster GBCH’s contention that the sexual abuse exclusion contains some ambiguity. Arguably, the language in the sexual abuse exclusion pertaining to omissions by the insured or its employees could be read to exclude acts of negligent supervision of the children who were residents at GBCH’s facility. However, Essex’s specific exclusion of negligent supervision claims arising out of an assault and battery suggests that its omission of a similar provision in the sexual abuse exclusion was deliberate. Similarly, Essex’s attempt to revise the sexual abuse exclusion in this case itself suggests that Essex, despite its assertions to the contrary, was concerned that the original sexual abuse exclusion either did not exclude coverage for the type of claim at issue here or was ambiguous as to whether it did so.

In the instant case, the presence of the ambiguity in the sexual abuse exclusion results in a conclusion as a matter of law that the policy did not exclude coverage for the type of claim asserted against GBCH by the former child resident and her parents. “Under Georgia rules of contract interpretation, words in a contract generally bear their usual and common meaning. OCGA § 13-2-2 (2). However, ‘if the construction is doubtful, that which goes most strongly against the party executing the instrument or undertaking the obligation is generally to be preferred.’ OCGA § 13-2-2 (5). Georgia courts have long acknowledged that insurance policies are prepared and proposed by insurers. Thus, if an insurance contract is capable of being construed two ways, it will be construed against the insurance company and in favor of the insured.” Claussen v. Aetna Cas. &c. Co., 259 Ga. 333, 334-335 (380 SE2d 686) (1989). Construing the ambiguity in the sexual abuse exclusion in this case against Essex, the policy did not exclude coverage for sexual abuse perpetrated by the children residents against another resident in GBCH’s facility. For that reason, the trial court erred in granting summary judgment for Essex and in denying summary judgment for GBCH on the issues of coverage under the insurance policy.

2. In answering the complaint for declaratory judgment filed by Essex, GBCH asserted four counterclaims: one seeking damages for breach of contract; one seeking to impose coverage under a theory of promissory estoppel; one seeking damages for negligence, in the event the policy does not provide for coverage and a defense to the action filed against GBCH; and, also in the event that the policy does not provide coverage, one seeking damages for misrepresentation. GBCH also sought attorney fees pursuant to OCGA § 13-6-11.

Our holding that Essex’s insurance policy did not exclude coverage for the type of claim asserted against GBCH eliminates the underlying basis for GBCH’s counterclaims asserting promissory estoppel, negligence, and misrepresentation. The counterclaim for breach of contract requires finding that Essex’s seeking declaratory judgment of its rights and obligations under the policy constituted a breach of that insurance contract. However, Essex did not actually deny coverage or its duty to defend under the policy. Indeed, had it done so, there would have been no “actual controversy” necessary to authorize a petition for declaratory judgment. OCGA § 9-4-2; see generally State Farm Mut. Ins. Co. v. Allstate Ins. Co., 132 Ga. App. 332 (208 SE2d 170) (1974). Rather, the entire purpose of Essex’s petition for declaratory judgment was to resolve the uncertainty over the parties’ rights and obligations under the insurance policy issued to GBCH, in accordance with OCGA § 9-4-1, and Essex’s resort to that declaratory judgment procedure may not be regarded as a breach of the insurance contract.

Decided February 1, 1993

Reconsideration denied February 15, 1993

Glover & Davis, J. Littleton Glover, Jr., R. Keith Prater, for appellant.

Alston & Bird, Gerald L. Mize, Jr., Lori G. Cohen, for appellee.

Concerning GBCH’s claim for attorney fees, OCGA § 13-6-11 allows an award for expenses of litigation “where the defendant has acted in bad faith . . . has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. . . .” The record, however, contains no evidence to support such an award of attorney fees in this case. Nothing suggests that Essex’s position that the insurance policy excluded the type of claim asserted against GBCH was anything less than genuine. That position was not an unreasonable one, and Essex’s decision to utilize the declaratory judgment procedure designed for precisely this situation may not be regarded as stubbornly litigious or causing GBCH unnecessary trouble and expense. Accordingly, no award of attorney fees was authorized under OCGA § 13-6-11.

3. The civil action filed against GBCH also sought an award of punitive damages. It is undisputed that Essex’s insurance policy issued to GBCH specifically excluded indemnification of any award for punitive damages. Accordingly, with respect to any liability for the payment of an award for punitive damages, the trial court’s grant of summary judgment for Essex was proper.

Judgment affirmed in part, reversed in part. McMurray, P. J., and Cooper, J., concur.


text:
    A92A1707.
    WEBB et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (427 SE2d 839)
   Blackburn, Judge.

Patti Webb and her minor daughter Scheniquah Webb filed suit against State Farm Mutual Insurance Company to recover damages for injuries and losses Scheniquah Webb allegedly sustained when she was involved in a vehicle collision while a passenger in an automobile operated by State Farm’s insured. State Farm moved for partial summary judgment as to Patti Webb’s claims, and the trial court granted the motion. Patti Webb appeals.

In her complaint, appellant asserted a claim for economic loss she allegedly suffered as a result of her daughter’s loss of wages during the period she was injured. The issue presented on appeal is whether appellant is a person entitled to no-fault benefits under former OCGA § 33-34-1 et seq. so that she may bring an action under former OCGA § 33-34-6 (b) for recovery of the benefits. Former OCGA §§ 33-34-4 (2) (B) and 33-34-5 (a) (1) (B) provide for no-fault insurance coverage of certain portions of “the loss of income or earnings of the insured during disability.” The persons to whom these benefits are payable are delineated in former OCGA § 33-34-7. The parent of a minor child to whom lost wage benefits are payable is not included in the list of payees in OCGA § 33-34-7 (a). Nor is such a parent included in the definition of “insured” set forth in former OCGA § 33-34-2 (5).

Notwithstanding this lack of no-fault coverage, appellant contends that under the analysis in Atlanta Cas. Co. v. Jones, 247 Ga. 238 (1) (275 SE2d 328) (1981), she should be considered to be a “person entitled” to no-fault benefits. We do not agree. In Atlanta Cas., the mother of a minor child who had been struck by an automobile driven by the defendant insurance carrier’s insured brought suit to recover expenses she incurred in the medical treatment of her child. The insurer sought dismissal of the complaint on the ground that the child was the real party in interest and thus the only proper plaintiff. The Supreme Court rejected this argument, reasoning that because the mother had paid the medical expenses pursuant to her legal obligation to provide necessaries for her minor child, the mother was entitled to assert the claim for payment of expenses incurred on behalf of the child. Id. at 239-240 (1).

In contrast, in the instant case appellant is not seeking to assert her right to recover no-fault benefits for covered expenses she incurred on her child’s behalf. Instead, she is seeking to recover in addition to her child the same benefits that are payable to the child and for which a claim remains pending below. Appellant is asserting a separate and independent claim for the same lost wage benefits sought by and payable to her daughter. Nothing in Atlanta Cas. or the no-fault insurance law authorizes this double recovery of benefits sought by appellant. As the Supreme Court later explained in another case, in Atlanta Cas. the court was addressing the “procedural issue . . . whether the minor child or her mother was the proper party to bring the suit. A majority of this court held the child’s mother could bring the suit in the child’s place because the mother was legally responsible for providing for the child, OCGA § 19-7-1, the child had incurred medical expenses, and the child had an independent substantive right to recover.” (Emphasis supplied.) United States v. Travelers Indem. Co., 253 Ga. 328, 330 (3) (320 SE2d 164) (1984). Atlanta Cas. did not create a substantive right of the parent to recover in addition to the child, but merely held that under certain circumstances the right of action may lie with either the parent or the child.

Decided February 15, 1993.

Kendall & Dixon, E. Earle Burke, for appellants.

Downey, Cleveland, Parker, Williams & Davis, Y. Kevin Williams, Houston D. Smith III, for appellee.

Accordingly, we affirm the trial court’s judgment.

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.


text:
    A92A2062.
    ANDREWS v. THE STATE.
    (427 SE2d 841)
   Blackburn, Judge.

The defendant, Robert Lee Andrews, appeals from the twenty-year sentence entered after a pre-sentence hearing upon his plea of guilty to two counts of robbery by force. Pursuant to OCGA § 17-10-7, the defendant was sentenced as a recidivist to thirteen years imprisonment followed by seven years of probation on each count, to serve concurrently. The defendant contends that during the pre-sentence hearing, the trial court erred in coilsidering testimony about pending charges that had been made against him by his ex-wife as aggravating circumstances because he was not provided with prior notice as required by OCGA § 17-10-2.

At the pre-sentence hearing, the state did not present any evidence of the pending charges in its case in chief, but introduced certified copies of the defendant’s previous convictions as required under OCGA § 17-10-7 and the direct testimony of a detective who was familiar with both of the robberies in question. The defendant, however, presented nine character witnesses and testified in his own behalf in mitigation of the punishment. On direct examination of seven of these witnesses, the defendant asked questions about the pending rape, aggravated assault, kidnapping and forgery charges that had been asserted against him by his ex-wife. In addition, the defendant discussed the pending charges during his testimony on direct, but objected to the state’s cross-examination of him on the pending charges. The trial court overruled the objection. This appeal followed.

In his sole enumeration of error, the defendant asserts as error the trial court’s consideration of the pending charges as aggravating circumstances at the pre-sentence hearing when the state did not provide the defendant with requisite notice pursuant to OCGA § 17-10-2 (a). Although OCGA § 17-10-2 provides that evidence in aggravation of punishment is not admissible at a pre-sentence hearing unless the state has provided the defendant with notice before trial, we find that notice was not required in this case. “Since the State was not introducing evidence in aggravation, but cross-examining the witness to determine the basis of the witness’ testimony, OCGA § 17-10-2 was not applicable.” Clark v. State, 186 Ga. App. 106, 110 (6) (366 SE2d 361) (1988). See also Christenson v. State, 261 Ga. 80, 90 (8) (402 SE2d 41) (1991). Further, as this Court has noted in Lockett v. State, 188 Ga. App. 645, 646 (373 SE2d 768) (1988), “ ‘[i]t was appellant, on direct examination, who introduced the topic. He cannot now complain that the prosecutor followed up on cross-examination. (Cit.)’ [Cits.]” Consequently, the appellant’s enumeration is without merit.

Decided February 15, 1993.

James A. Yancey, Jr., for appellant.

Glenn Thomas, Jr., District Attorney, Stephen G. Scarlett, Assistant District Attorney, for appellee.

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.


text:
    A92A2139.
    SIMS v. THE STATE.
    (427 SE2d 842)
   Blackburn, Judge.

The defendant was charged with possession of marijuana with the intent to distribute, possession of cocaine, and possession of a firearm by a convicted felon. The defendant filed a motion to suppress the evidence seized pursuant to a search warrant, asserting that the warrant was deficient and lacked probable cause. The judge granted the motion to suppress as to the cocaine charge, but denied the motion as to the gun, marijuana and money found by law enforcement officers. The defendant subsequently entered a guilty plea to the marijuana and gun possession charges and in pleading guilty, conditioned his plea upon a reservation of his right to appeal the trial court’s ruling on the motion to suppress, pursuant to Mims v. State, 201 Ga. App. 277 (1) (410 SE2d 824) (1991). The state agreed with and the trial court accepted the defendant’s conditional plea. On appeal, the defendant contends that the trial court erred in denying his motion to suppress in that the affidavit issued by the magistrate judge lacked probable cause.

At the hearing on the defendant’s motion to suppress, Detective Danny Smith of the Gwinnett County Police Department testified that the warrant had been sought from a DeKalb County magistrate based upon information supplied to him by the informant on December 5, 1991. According to Detective Smith, the informant voluntarily presented himself to the police department and confessed to theft, informing the detective that he had stolen a generator and high-pressure washer around Thanksgiving and exchanged the items for cocaine at the home of a man named “Ernest.” The informant after-wards provided Detective Smith with directions to a house on Men-dell Circle. Detective Smith proceeded to confirm this information and discovered that the description of the house given to him by the informant accurately identified the defendant’s home.

The magistrate testified that it was his practice to take a recording of any additional information given as a basis for issuing a search warrant. After the motion to suppress hearing was postponed until the next day for the purpose of obtaining the tape, the tape recording of the hearing was played in open court and its contents transcribed. The recorded testimony corroborated the earlier testimony given by Detective Smith. Based upon the information contained in the affidavit and the information supplied by Detective Smith, a search warrant was issued by the magistrate.

In his sole enumeration of error, the defendant contends that the trial court erred in denying his motion to suppress in that the affidavit and supplemental oral testimony were insufficient to establish the requisite probable cause for the issuance of a search warrant. Specifically, the defendant contends that the evidence given to the affiant by the informant was so insubstantial that neither the affiant nor the magistrate could rely upon it. The defendant further asserts that the lapse in time between when the informant stole and exchanged the items sought and the date when the warrant was issued raises the question of staleness.

“ ‘In determining whether probable cause supported issuance of a search warrant, a “totality of the circumstances” test is employed. “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him .. . , there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis ... for conclud(ing)’ that probable cause existed.” (Cit.)’ [Cit.]” Perkins v. State, 197 Ga. App. 577, 578 (1) (398 SE2d 702) (1990). “[T]he determination of staleness has been modified so that now that issue is included in the broad overview of ‘totality of circumstances.’ [Cit.]” Ayers v. State, 181 Ga. App. 244, 248 (2) (351 SE2d 692) (1986). “Time is assuredly an element of the concept of probable cause. [Cit.] However, the precise date of an occurrence is not essential. Rather, the inquiry is as to whether the factual statements within the affidavit are sufficient to create a reasonable belief that the conditions described in the affidavit might yet prevail at the time of the issuance of the search warrant. [Cit.]” State v. Luck, 252 Ga. 347 (312 SE2d 791) (1984).

Decided February 15, 1993.

Herbert Shafer, for appellant.

Robert E. Wilson, District Attorney, John H. Petrey, Stacy Y. Cole, Assistant District Attorneys, for appellee.

Reviewing all the circumstances set forth in the affidavit and the supplemental oral testimony supplied by the affiant, we conclude that there was a reasonable basis for the magistrate’s determination of probable cause in issuance of the search warrant. The information provided by the affiant, arising out of his “official investigation of the information” provided to him by the informant, was sufficient to establish probable cause. See Caffo v. State, 247 Ga. 751, 754-755 (279 SE2d 678) (1981). The affidavit presented to the magistrate by the affiant contained detailed directions to the defendant’s address as well as a detailed description of the defendant’s house. In addition, the affiant provided oral testimony of his investigation of the statements made by the informant which led to the defendant’s residence. Although the defendant challenges the reliability and the credibility of the informant because of his involvement in criminal activity, an admission against one’s penal interest is “inherently credible.” Aldridge v. State, 153 Ga. App. 744 (266 SE2d 513) (1980). Thus, the informant’s admission to the affiant that he exchanged stolen property for cocaine tends to support the informant’s credibility. As to the issue of staleness, the magistrate was proper in finding that the items would have been present on the defendant’s premises at the time the warrant was issued, approximately 11 days later, given the nature of the items that had been stolen. “The question is one of reasonability: Is the lapse of time so long that it is no longer reasonable to believe that the same conditions described in the affidavit remain at the time a warrant is issued? [Cit.]” Tuzman v. State, 145 Ga. App. 761, 764 (2) (244 SE2d 882) (1978). Accordingly, the trial court did not err in denying appellant’s motion to suppress.

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.


text:
    A92A2163.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. YOUNG.
    (427 SE2d 835)
   Blackburn, Judge.

In 1988, State Farm Mutual Automobile Insurance Company issued two automobile insurance policies to Phillip Young, which provided no-fault coverage with limits of $25,000, and medical payment coverage of $10,000 in each policy. These types of coverage were mandated at that time by the 1974 Georgia Motor Vehicle Accident Reparations Act, which was repealed in its entirety on October 1, 1991.

On July 21, 1988, Young was injured in an automobile collision, and thereafter filed claims for no-fault benefits and medical payments under the policies. State Farm eventually paid a total of $22,349.86 on Young’s claims, but because of the findings contained in an independent medical examination of Young, it denied any further claim for benefits. On October 18, 1990, Young filed suit against State Farm, seeking further benefits under the insurance policies, and statutory penalties, attorney fees and punitive damages under OCGA § 33-34-6 because of State Farm’s bad faith denial of his claim.

Young’s allegation that State Farm had acted in bad faith in denying further benefits was centered around State Farm’s reliance upon the independent medical examination. Through discovery, Young sought to establish that the medical examination was not “independent,” in that a financial arrangement existed between State Farm and the examining physician, resulting in that physician always making medical findings favorable to State Farm, and that State Farm had engaged in a pattern of similar bad faith transactions using other “independent” medical examiners. On August 28, 1991, the trial court granted Young’s motion to compel this discovery request. Subsequently, State Farm filed a motion for reconsideration of that order, and alternative motions for dismissal or summary judgment, all of which were denied by the trial court. This interlocutory appeal followed.

On appeal, State Farm contends that the repeal of the Georgia Motor Vehicle Accident Reparations Act on October 1, 1991, extinguished Young’s claim for statutory penalties, attorney fees, and punitive damages for bad faith under OCGA § 33-34-6, which in turn invalidated the only basis of his discovery request. State Farm further contends that these issues recently have been decided in its favor in Terry v. State Farm Mut. Auto. Ins. Co., 205 Ga. App. 224 (422 SE2d 212) (1992). We agree.

In Terry, after noting that the legislature had not indicated whether it intended the repeal of the No-Fault Act to have retroactive application, this court emphasized that “[i]t is well-settled in this state that repeal of a law authorizing recovery of a penalty defeats the right to recover such a penalty unless the right has become vested. Spengler v. Employers &c. Ins. Co., 131 Ga. App. 443, 448 (206 SE2d 693) (1974), and cases cited therein. The right to recover a penalty may become vested in either of two ways: (1) the right arises contractually, that is, it is the subject of bargained-for consideration; or (2) the party seeking to recover the penalty has secured a final nonappealable judgment. Id.” Terry v. State Farm Mut. Auto. Ins. Co., supra at 225.

In the instant case, inasmuch as no final nonappealable judgment has been rendered, Young can pursue his claims under former OCGA § 33-34-6 only if he has a vested contractual right to such. However, in Terry, considering a policy identical to the one in this case, this court held that the privilege to seek penalties against insurers is not generally a bargained-for element of insurance contracts. No vested contractual right to pursue the statutory penalties and punitive damages existed because “the contract itself . . .[did]. . . not specifically mention the insured’s ability to seek penalties and punitive damages against the insurer. . . . The mere mention of the act containing the statute authorizing penalties and punitive damages . . . does not change the nature of the privilege from extra-contractual to contractual in nature.” Id. at 227. For the same reasons expounded in Terry, we find that the repeal of former OCGA § 33-34-6 has vitiated Young’s claims for penalties, attorney fees, or punitive damages for bad faith. Accord Khosravi v. Aetna Cas. &c. Co., 206 Ga. App. 481 (425 SE2d 905) (1992); American Assn. of Cab Cos. v. Egeh, 205 Ga. App. 228, 232 (9) (421 SE2d 741) (1992).

Young contends that Terry and its progeny should be overruled because they do not address the constitutionality of the repealing act being given retroactive application so as to divest a previously acquired right or to impair a contractual obligation. However, notwithstanding the absence of any contractual right to impair, this court did consider those concerns in Terry at 227, in noting that the Supreme Court has recognized that “construing a statute so as to relieve against penalties and forfeitures does not violate the constitutional rights of the complaining party because ‘a person has no vested rights to a forfeiture or penalty.’ [Cit.]”

In summary, the repeal of former OCGA § 33-34-6 extinguishes Young’s claims for penalties, attorney fees, and punitive damages under that statute. Consequently, that repeal also vitiated the only basis for Young’s discovery request seeking information that pertained to the issue of State Farm’s bad faith denial of his claim. Accordingly, State Farm was entitled to summary judgment on Young’s claims for penalties, attorney fees, and punitive damages under former OCGA § 33-34-6, and the trial court’s order granting Young’s motion to compel discovery must be reversed. Young’s claims for no-fault benefits and medical payments possibly due under the policies issued by State Farm, of course, remain pending.

Judgment affirmed in part, reversed in part. McMurray, P. J., and Cooper, J., concur.

Decided February 15, 1993.

Downey, Cleveland, Parker, Williams & Davis, Y. Kevin Williams, Houston D. Smith III, for appellant.

Greene, Buckley, Jones & McQueen, Edward D. Buckley III, Rose E. Goff, for appellee.