text:
    76600.
    JONES v. THE STATE.
    (374 SE2d 110)
   Beasley, Judge.

Jones appeals his convictions and sentences for four counts of cruelty to children, OCGA § 16-5-70. He alleges errors in both his competency trial and in the trial of the offenses.

1. Jones contends in two enumerations that the court erred in the competency trial in refusing a requested mistrial after it twice allegedly commented improperly and prejudicially on the evidence. This was in regard to psychologist Grigsby, who was called as the State’s expert.

The first instance occurred after the State’s foundation evidence and offer of Grigsby as an expert in clinical and forensic psychology. Defendant’s counsel cross-examined the witness and objected to his acceptance by the court as a forensic psychologist. In the course of that cross-examination, Grigsby volunteered: “For 11 years, courts throughout Georgia have accredited me as an expert witness.” Counsel replied: “I’m not asking you that. Whether some other court’s done it or not, ...”

Counsel at the same time objected to Grigsby’s acceptance as an expert because he was a State employee and thus biased.

In overruling the objection, the court explained: “I have qualified Dr. Grigsby as an expert in the field of both clinical and forensic psychology in the past. I will do so at this time. I have heard Dr. Grigsby testify more than once, and I’ve heard him testify on both sides of the issue. I don’t believe this witness is biased, and I will overrule that objection, and we’ll let the record reflect that he can testify as an expert in the fields of clinical and forensic psychology.”

Later, during cross-examination, defendant’s counsel sought to discredit Grigsby’s opinion of competency by eliciting admissions that he worked for the State and was paid by the State. The court stopped his pursuit of this line of questioning, saying: “Just a moment . . . Let me remind you, I draw a paycheck from up there, too. Now, I’m not going to allow you to pursue this.”

Defendant had a right to thoroughly and siftingly cross-examine the witness called against him. OCGA § 24-9-64. An issue during this competency phase was the credibility of the expert. Should the jury believe Dr. Grigsby and accept his opinion, or not? Defendant’s witnesses, including his former attorney, had testified that defendant was not competent. Credibility was of course a jury matter, OCGA § 24-9-80, as the court subsequently instructed it. The court also properly instructed that the weight to be given expert testimony is to be determined by the jury. OCGA § 24-9-67; Moses v. State, 245 Ga. 180, 181 (263 SE2d 916) (1980). The expert’s credentials are relevant to the weight and credit to be given by the jury to his testimony. McCoy v. State, 237 Ga. 118, 119 (227 SE2d 18) (1976).

Here the court added the influence of its personal opinion on the expert status of Dr. Grigsby and on the credibility of his testimony. In addition, it cast a cloak of impartiality on that witness, by identifying him in common with the court as a State-paid employee, implying that since the court was unbiased even though paid by the State, so must Dr. Grigsby be.

The court is precluded by law from expressing or intimating opinion as to matters proved or not proved and as to guilt. OCGA § 17-8-57. Whether the witness was biased by employment was an issue, as was the value of his opinion as an expert. The purpose of forbidding comment is to keep the jury from being influenced by the judge, Morton v. State, 132 Ga. App. 329, 330 (1) (208 SE2d 134) (1974), so as to preserve inviolate the right of trial by jury, Crawford v. State, 139 Ga. App. 347 (228 SE2d 371) (1976). “The credibility and standing of the witness is an issuable fact in every case — a most material fact. Therefore, anything which tends to uphold, to support, to disparage, or to lower the character and the resulting credibility of the witness is vitally connected with the facts of the case. ...” Cole v. State, 6 Ga. App. 798, 799 (65 SE 839) (1909).

Even though unintentional, the court stepped over the line between explaining its ruling and intimating its opinion on issues which were the sole province of the jury. See Taylor v. State, 2 Ga. App. 723, 729 (3) (59 SE 12) (1907) regarding the latter. Compare the instant case with Collins v. State, 143 Ga. App. 583, 586 (3) (239 SE2d 232) (1977) overruled in part on other grounds Plemons v. State, 155 Ga. App. 447, 452 (9) (270 SE2d 836) (1980), reconsidered in Barnes v. State, 157 Ga. App. 582, 585 (2) (277 SE2d 916) (1981), and Patrick v. State, 245 Ga. 417, 421 (4) (265 SE2d 553) (1980), vacated and remanded for reconsideration in light of Godfrey v. Ga., 446 U. S. 420 (101 SC 1759, 64 LE2d 398) (1980), Patrick v. Georgia, 449 U. S. 988 (101 SC 522, 66 LE2d 285) (1980, vacated death penalty 247 Ga. 168 (274 SE2d 570) (1981), 249 Ga. 708 (293 SE2d 329) (1982).

Defendant is entitled to a new trial on competency. If he is found competent, the convictions will stand for the reasons stated hereafter in our analysis of the enumerated errors related to trial of the offenses, and a new judgment shall be entered thereon. However, he will be entitled to appeal anew from the new judgment as it relates to the verdict of competency.

2. Appellant contends the trial court erred in not granting mistrials because it failed to give him adequate funds before the trials to allow an independent psychologist to complete psychological testing and to be present at every phase of both the competency and guilt trials as required under Ake v. Oklahoma, 470 U. S. 68 (105 SC 1087, 84 LE2d 53) (1985). He further contends that even if the granted funds were adequate, the court violated Ake by not allowing him sufficient time to complete the desired testing.

Prior to arraignment, Jones’ appointed counsel filed a petition for psychiatric evaluation by a psychiatrist to determine whether Jones was competent to stand trial and to determine Jones’ mental state at the times of the charged offenses. Counsel also filed a notice of intent to raise the defense of insanity or mental incompetence.

An unexpected professional conflict arose, resulting in the appointment of new counsel. The latter filed numerous motions including one under Ake. He sought adequate funds to have psychiatric and psychological experts of his choosing consult with and examine defendant and investigate as necessary, to determine whether he was able to form the legal intent for criminal responsibility, to determine whether he was insane or suffering delusional compulsion, and to show mitigating circumstances should he be convicted.

Counsel also filed another notice of intent to raise the defense of insanity or mental incompetence, a plea of insanity, and a special plea of incompetency to stand trial and a motion for transfer of the defendant to the Department of Human Resources under OCGA § 17-7-130.

The trial court ordered that the Department conduct an evaluation of Jones at public expense with respect to defendant’s competency to stand trial and his degree of criminal responsibility or mental competence at the time of the act. Dr. Grigsby conducted the ordered evaluation.

Defense counsel moved ex parte to provide funds for expert assistance under Ake. Supporting the motion was counsel’s affidavit which gave his opinion that Jones had a meritorious defense in his plea of insanity. The facts underlying the opinion included: Jones had related that he was severely physically abused by his father. Jones had related that his will was sometimes uncontrollably subject to commands of God and the devil and that the acts alleged in the indictments were caused by such commands overpowering his will. Jones’ mother believed that Jones was mentally retarded from an early age, made worse by chronic alcohol and drug abuse from late adolescence. The chief jailer had advised counsel that Jones definitely required psychiatric evaluation because he was suicidal. Counsel’s review of the psychiatric records from West Central Georgia Hospital showed that Jones was, at least episodically, psychotic and heard commands from the devil. Jones’ wife advised that Jones sought treatment for mental illness and chemical dependencies from the local “Personal Growth Center” after the crimes were committed but before arrest. Treatment was prevented by his arrest. Counsel’s personal observation of Jones in jail interviews caused counsel to believe that Jones was of sub-normal intelligence, extremely unkempt, unclean, had low self-esteem, unpredictable mood swings, did not comprehend advice and statements made to him, and did not fully understand the nature of the proceedings against him as he believed the only outcome would be that he would be returned to the mental hospital. Jones appeared to be in a daze and despite counsel’s attempts seemed unable to assist counsel in preparing his defense.

Defendant made no showing that an examination by Grigsby was or would be inadequate but contended that because Grigsby was a State-paid psychologist, it was probable that his testimony would be biased in favor of the State. After hearing, the court granted $500 for a psychologist of defendant’s choice. Thereafter, defense counsel requested an additional $2000 to pay for further services of a chosen psychologist, Brooks, to consult with him and be present in court during trial. A supporting affidavit by Brooks stated that additional testing might be required depending upon the opinion of counsel. The $2000 request was denied. Defense counsel advised the court that Brooks charged $100 for consultation. The court granted defendant an additional $100, and permitted defense counsel, if he so chose, to consult with the psychologist, and to further advise the court if any facts developed helpful to the defendant, whereupon it would consider additional public monies.

Immediately preceding the competency trial, defense counsel moved for a continuance on several grounds including that further psychological testing was required. The court denied the continuance but advised that if the defense chose to call Brooks as a witness, it would, upon proper time sheets in affidavit form, approve funds for Brooks to be available to testify.

Defense counsel made a “continuing objection and a continuing motion for mistrial” because of the court’s alleged failure to provide adequate funds to allow Brooks to be at every phase of the trials. The court permitted the continuing objection and denied a mistrial.

Brooks did not testify at either the competency proceeding or at the guilt/innocence trial. Grigsby testified at the competency trial that he conducted a forensic interview with Jones, i.e., in-depth verbal interaction between the psychologist and the defendant consisting of a discussion of what the defendant was charged with and a historical background of the defendant. Grigsby also conducted a number of psychological tests to determine the presence of any mental disorder which might impair defendant’s ability to communicate with him or with defendant’s attorney.

Jones’ mental status exam revealed only a very slight impairment of memory, impaired judgment and a dull intellect which the doctor viewed as not significant because of Jones’ extensive history of alcohol and drug abuse. Neurological screening tests did not show abnormality other than some impairment of fine motor skills which was consistent with the history of substance abuse. Though defendant scored a 69 on the administered I.Q. test, Grigsby’s opinion was that defendant was actually functioning within the borderline range of intelligence. Following administration of a personality test, Grigsby considered Jones to be “faking sick” and to be exaggerating his responses.

The psychologist diagnosed Jones as a poly drug abuser and a mixed personality disorder, i.e., not a mental disorder but rather “an individual who, for whatever reason, basically creates a lot of problems for society.” Grigsby’s opinion was that Jones was legally competent to stand trial.

“In Ake, the court held that ‘(w)hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must . . . assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.’ [Cit.] ” Scott v. State, 177 Ga. App. 474 (1) (339 SE2d 718) (1986).

“The trial court is also authorized to order a psychiatrist or another mental health expert to examine the defendant to help determine whether his ability is likely to be a significant factor in his defense. When it is determined that it is, the defense must be provided with the assistance of a psychiatrist.” Id. at 476, applying Lindsey v. State, 254 Ga. 444, 449 (330 SE2d 563) (1985).

The trial court did not deny the initial motion for psychiatric assistance but rather granted the assistance and ordered that Jones be evaluated as to his competency both then and at the time of commission of the offenses.

Inasmuch as the State psychologist’s assessment was not favorable to the defense, defendant wished other expert opinion and sought under the auspices of Ake to secure funds for alternate expert assessment and assistance. However, defendant made no showing whatsoever that Grigsby’s evaluation was inadequate save for it not producing the desired determination. Rather, he traveled on the theory that the doctor’s examination was wanting merely because of a presumed bias in favor of the State as Grigsby’s employer. This was not enough. See Scott, supra at 474 (1).

No further showing having been made, the trial court’s grant of funds to secure independent expert opinion was not required under Ake. What is more, defendant did not seek the services of independent evaluation by a psychiatrist, as provided for in Ake, see Lindsey, supra at 448, but sought the services of another psychologist.

The trial court did not foreclose further funds for assessment and the expert witness’ assistance at the trials but merely required defendant to show the need. The retained psychologist’s view that further testing might be needed depending on the opinion of defense counsel fell short of demonstrating the need for further psychiatric assistance. Moreover, even though initial funds had been granted well before the time of trial, defendant waited just prior to the competency proceeding to request the continuance for further evaluation. Defendant had sufficient time in the interim between retaining the psychologist and trial to report to the court any additional need and basis for further time and funds.

Under these circumstances there was no violation of the mandates of Ake in refusing the additional funds sought and a continuance of the proceedings, and the trial court did not err in denying a mistrial on the basis of an Ake violation.

3. Appellant contends that the competency court erred in failing to grant a mistrial because the State impermissibly went into the question of guilt for the offenses during the competency trial, in viola- • tion of Crawford v. State, 240 Ga. 321, 325 (2)-326 (2) (240 SE2d 824) (1977). This is rendered moot by our ruling in Division 1.

4. Appellant contends that the trial court erred in refusing to grant a pre-trial hearing on his motion to suppress his confession at the guilt/innocence trial.

Rather than hold a pre-trial hearing on suppression of the confession, the court indicated to counsel during a recess in the course of the trial that it would hear at the same time both the defendant’s motion to suppress the confession and the question of the confession’s admissibility under Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964). Defense counsel agreed and should not now be allowed to complain of the lack of a pre-trial determination. A party “cannot suffer what he deems to be an injustice during trial, hoping for an acceptable result, and then after the trial — first state his objection to the procedure followed. [Cit.]” Moss v. State, 159 Ga. App. 317, 319 (283 SE2d 275) (1981).

In any event, after a full hearing, the court made determinations on both the question of probable cause and the consequent legality of obtaining the statement, the heart of the motion to suppress, see State v. Harris, 256 Ga. 24 (343 SE2d 483) (1986), and on the question of voluntariness, the focus of Jackson-Denno. Pierce v. State, 238 Ga. 126, 128 (231 SE2d 744) (1977). Appellant has failed to show how he was harmed by the joint hearing during the trial’s course. Without harm there is no reversible error. Bowen v. State, 170 Ga. App. 49, 50 (1) (316 SE2d 33) (1984).

5. Appellant contends that the trial court erred in denying a mistrial because of “joint questioning” by the court and the State improperly eliciting evidence of his character at the trial of the offenses.

The defense called Jones’ mother to establish, among other things, Jones’ history of psychiatric treatment. The objected-to exchange occurred during her cross-examination; she was asked about the times that Jones had been in the psychiatric hospital. The State queried, “And what was it that caused him to go down there to the hospital?” The court ruled, over objection, that the defense had opened the door for the question. Cross-examination continued.

The State asked the mother whether the reason Jones went to the hospital was because he was abusing drugs. Jones’ mother responded affirmatively. The court then stated, “I need to know how he was sent. Would you elaborate on that, please?” The State said it would and asked the mother, “What were the — do you know how he was sent down there, did you take him in a vehicle, or did somebody else take him? The mother answered, “No, sir, I think the police took him.” The State commented, “Okay.” The court asked, “You think what?” Jones’ mother reiterated, “The police took him.”

The court denied a mistrial on the basis that Jones’ character had been put in issue after the court explained that it was after information about the legal vehicle for the defendant’s hospitalization, not the means of physical transportation as apparently assumed by the State and the witness.

Police vehicles are routinely utilized to transport patients to state mental facilities. See OCGA § 37-7-101. Even if the jury were to infer from the testimony that defendant had dealings with the police other than ordinary transport as a patient to the mental facility, a suggestion of prior brushes with the law or even of confinement in jail does not automatically place a defendant’s character in issue. See Lewis v. State, 255 Ga. 681, 682 (2) (a) (341 SE2d 434) (1986); Fields v. State, 176 Ga. App. 122, 123 (335 SE2d 466) (1985).

The trial court did not abuse its discretion in refusing to grant a mistrial on the basis of improper injection of defendant’s character.

Decided November 10, 1988.

Cramer, Weaver & Edwards, Christopher C. Edwards, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

Judgments reversed with direction.

Birdsong, C. J., and Banke, P. J., concur.


source: Caselaw Access Project

author: Banke, Presiding Judge. Beasley, Judge, Carley, Judge,

license: Public Domain

text:
    76952.
    ST. JOSEPH’S HOSPITAL, INC. v. NEASE et al. BUELVAS et al. v. NEASE et al.
    76953.
    (375 SE2d 241)
   Banke, Presiding Judge.

This is a medical malpractice action filed against the appellants by the appellees. The appellants moved to dismiss the action based on the appellees’ failure to comply with OCGA § 9-11-9.1 (a) (Ga. L. 1987, p. 887, § 3), which requires that the complaint in professional malpractice actions be accompanied by an affidavit from a competent expert supporting at least one of the allegations of negligence. The trial court allowed the appellees to correct this defect by amendment and accordingly denied the motion to dismiss. The case is before us pursuant to our grant of the appellants’ application for interlocutory appeal.

The appellees had filed two previous complaints against the appellants seeking to recover on the same cause of action but had voluntarily dismissed both those actions before trial. The affidavit submitted by the appellees in response to the appellants’ motion to dismiss the present action was identical to an affidavit which they had previously submitted in response to a motion for summary judgment in one of the prior actions. The appellants contend that the appellees’ failure to file this affidavit contemporaneously with their complaint constituted a non-amendable defect and that the affidavit was, in any event, deficient because it was based on a review of medical records which were not made a part of the record in the present case. Held-.

1. The appellants argue that if the Legislature had intended to allow the required affidavit to be filed by amendment, it would have had no reason to enact subsection (b) of OCGA § 9-11-9.1, which permits the application to be supplied by supplemental pleading in “any case in which the period of limitation will expire within ten days of the date of filing [of the complaint] and, because of such time constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared.” While we must agree with the appellants that the specification of this single exception to the contemporaneous filing requirement suggests an intention on the part of the Legislature not to permit any other such exceptions, we are constrained by the Supreme Court’s recent decision in Glaser v. Meek, 258 Ga. 468 (369 SE2d 912) (1988), to conclude that other such exceptions may be made.

In Glaser v. Meek, the Supreme Court held that a defendant in a malpractice action had waived the defect created by the plaintiffs’ failure to file the required affidavit contemporaneously with their complaint by waiting until after the statute of limitation had run on the claim to assert the defect. Noting that because of the defendant’s delay in asserting the defect the plaintiffs had been precluded from dismissing their complaint voluntarily and filing a renewal action, the Court concluded that to dismiss the case under such circumstances would be contrary to OCGA § 9-11-8 (f), which provides: “All pleadings shall be so construed as to do substantial justice.”

Normally, a defect in a pleading which may be waived by failure to assert it in a timely manner is considered amendable, and vice versa. See, e.g., Crump v. Jordan, 154 Ga. App. 503 (1) (268 SE2d 787) (1980); American Liberty Ins. Co. v. Sanders, 120 Ga. App. 202, 207 (170 SE2d 249) (1969), reversed on other grounds Sanders v. American Liberty Ins. Co., 225 Ga. 796 (171 SE2d 539) (1969). If, as urged by the appellants, the failure to file the affidavit required by subsection (a) of OCGA § 9-11-9.1 constitutes a non-amendable defect under all circumstances except those set forth in subsection (b), then a complaint filed without the affidavit would be void ab initio in all cases where subsection (b) did not apply, rendering all subsequent proceedings in such cases a nullity even if no motion to dismiss were filed. Such a result would, however, be inconsistent with the result reached by the Supreme Court in Glaser v. Meek, supra.

Section 15 (a) of the Civil Practice Act (OCGA § 9-11-15 (a)) establishes a general policy favoring the amendment of pleadings so as to enable each action to be tried on its merits. Accord McDonald v. Rogers, 229 Ga. 369, 378 (7) (191 SE2d 844) (1972); McRae v. Britton, 144 Ga. App. 340 (2) (240 SE2d 904) (1977). “When the courts are called upon to determine if there is a conflict between statutes, they are required to undertake to construe them together and seek to give full effect to both laws as representing all of the legislative intention. (Cit.)” Fulton County v. Corp. &c. of Latter Day Saints, 133 Ga. App. 847, 851 (212 SE2d 451) (1975). While there is no question that OCGA § 9-11-9.1 (a) contemplates that the required affidavit will normally be filed contemporaneously with the filing of the complaint, it does not expressly provide that a complaint filed without the affidavit will be considered a nullity; nor would the purpose of the Code section necessarily be defeated by allowing the affidavit to be supplied by amendment, since the complaint would remain subject to dismissal unless and until the affidavit were supplied.

Certainly, the appellants in the present case cannot claim to have been prejudiced by the appellees’ failure to file the affidavit contemporaneously with their complaint, since they (the appellants) had already been served with the affidavit in connection with a previous suit on the same cause of action. On the other hand, the appellees, like the plaintiffs in Glaser v. Meek, would be unable to pursue a renewal action in the event their present complaint were dismissed. See OCGA § 9-11-41 (a). Applying the policy expressed in OCGA § 9-11-8 (f) that “[a] 11 pleadings shall be so construed as to do substantial justice,” we consequently conclude that the trial court did not err either in allowing the affidavit to be provided by amendment or in denying the appellants’ motion to dismiss.

2. The appellants’ contention that the affidavit was ineffective because it was based on a review of medical records which were not contained in the record was not raised below and consequently presents nothing for review on appeal. See Bradbury v. Mead Corp., 174 Ga. App. 601 (1) (330 SE2d 801) (1985).

Judgment affirmed.

Deen, P. J., Pope and Benham, JJ., concur. Beasley, J., concurs specially. Birdsong, C. J., McMurray, P. J., Carley and Sognier, JJ., dissent.

Beasley, Judge,

concurring specially.

I agree with the dissent as a general matter. The legislature expressly provided in subsection (b) a single exception to the “contemporaneous filing requirement” and in subsection (c) the practical procedural device of a delay in order to accommodate the defendant. Since it has made contemporaneous filing a clear and unambiguous requirement, unquestionably governing the time when an affidavit has to be filed in this specific type of case, the fiction of relation back cannot be invoked by plaintiffs to defeat it. The legislature provided a mechanism for precluding frivolous professional malpractice actions by requiring some proof by plaintiff at the very outset.

In the instant case an inadvertent omission occurred a few months after the effective date of the new procedural statute. The additional requirement went into effect between the filings of the first two suits and the instant suit. All parties had the affidavit as it was part of the same action which had been brought earlier and thus predated the filing of the instant suit. This is not a case where an action was filed, an alert defendant moved to dismiss because of the lack of an affidavit, calling plaintiff’s bluff so to speak, and the plaintiff then scrambled around to get one.

Under the particular facts of this case, and applying both procedural rules to achieve their intent in the spirit of OCGA § 9-11-1, I agree to affirm. This is a case which calls for the application of the word “just” as it appears in the statement that the legislatively prescribed CPA “shall be construed to secure the just, speedy, and inexpensive determination of every action.” See also OCGA § 9-11-8 (f), which was called upon by the Supreme Court to rescue the defective complaint in Glaser v. Meek, 258 Ga. 468 (369 SE2d 912) (1988). The incompleteness of the complaint in that case was never even rectified, and yet it was not held to be a nullity.

Carley, Judge,

dissenting.

In the present case, appellees’ complaints, as originally filed, were not in compliance with subsection (a) of OCGA § 9-11-9.1, which requires the contemporaneous filing of the affidavit of an expert. The provisions of subsection (b) of that statute, which provide for a limited exception to this contemporaneous filing requirement, are inapplicable. The majority opinion holds that reliance upon OCGA § 9-11-15 is nevertheless a viable alternative to compliance with OCGA § 9-11-9.1 and that, as the result of the amendment of appellees’ complaints pursuant to that provision so as to add the requisite affidavit of an expert, appellants’ motions to dismiss were properly denied. In my opinion, OCGA § 9-11-15 is not available to appellees and the trial court erred in denying appellants’ motion to dismiss. Therefore, I must respectfully dissent.

The legislative intent of OCGA § 9-11-9.1 is clear. The statute provides for specific pleading rules which are applicable to a complaint alleging professional malpractice. It is likewise clear that the legislature intended that there be mandatory compliance by a plaintiff with those specific pleading rules. Unless the limited exception of subsection (b) of OCGA § 9-11-9.1 is otherwise applicable, subsection (a) of the statute provides that “the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify. . . .” (Emphasis supplied.) It is true that, as worded, OCGA § 9-11-9.1 does not explicitly foreclose a plaintiff’s reliance upon the general provisions of OCGA § 9-11-15 so as to amend his complaint to add the requisite affidavit of an expert. In my opinion, however, the mere enactment of OCGA § 9-11-9.1, as a specific mandatory pleading rule applicable to complaints alleging professional malpractice, serves, in and of itself, as an implicit bar to a plaintiff’s successful reliance upon the general provisions of OCGA § 9-11-15 so as to satisfy the requirement for the filing of the affidavit of an expert. “In view of [the] specific rules relating to . . . actions [for professional malpractice], [I] think it necessarily follows that the general rule permitting amendment as a matter of course and without leave of court before the entry of a pretrial order, as stated in [OCGA § 9-11-15], has no application in respect to [an] . . . action [for professional malpractice], if the proposed amendment is one which would [not be consistent with the import of the specific rules].” Murphy v. Hope, 229 Ga. 836, 838 (1) (195 SE2d 24) (1972).

To sanction a plaintiff’s subsequent reliance upon the general provisions of OCGA § 9-11-15 as a means of rectifying his original failure to file the requisite affidavit of an expert would certainly not be consistent with the import of the specific pleading rules mandated by OCGA § 9-11-9.1. There would be no legal incentive whatsoever for a plaintiff to comply with the specific mandatory pleading rules of OCGA § 9-11-9.1, since he could subsequently invoke the general provisions of OCGA § 9-11-15. Thus, contrary to the controlling legislative intent, the effect of the majority’s opinion is to give a plaintiff discretion as to whether he will comply with the mandatory provisions of OCGA § 9-11-9.1. In my opinion, appellants were not authorized to rely upon the general provisions of OCGA § 9-11-15 and the efficacy of their attempts to amend their complaints to add the requisite affidavit of an expert must be judged by the specific mandatory pleading rules of OCGA § 9-11-9.1. Judged by those specific mandatory pleading rules, appellees’ amendments were not authorized and were totally ineffective.

While I agree with the majority that the Supreme Court’s opinion in Glaser v. Meek, 258 Ga. 468 (369 SE2d 912) (1988) provides guidance in our resolution of the issue in this case, I believe that Glaser supports the analysis and statutory construction advanced in this opinion rather than that presented by the majority. The issue in Glaser was the effect of a defendant’s failure to raise as a defense in his original answer the plaintiff’s non-compliance with the specific pleading rules of OCGA § 9-11-9.1. In holding that the defense was waived by and thus not available to the defendant in that case, the Supreme Court stated: “Had the failure to comply with new OCGA § 9-11-9.1 been brought to the [plaintiff’s] attention at the time the [defendant] filed responsive pleadings, [the plaintiff] could have dismissed the pending action, and filed a renewed action. ...” (Emphasis supplied.) Glaser v. Meek, supra (2). Thus, the Supreme Court has indicated that dismissal and refiling of the complaint, not its amendment, is the appropriate method by which a plaintiff may rectify his non-compliance with OCGA § 9-11-9.1. Accordingly, appellees’ original non-compliance with the specific mandatory pleading rules of OCGA § 9-11-9.1 cannot be cured by their subsequent invocation of the general pleading rules of OCGA § 9-11-15.

Since the amendment of appellees’ complaints was not authorized under OCGA § 9-11-15, I must respectfully dissent to the affirmance of the denial of appellants’ motions to dismiss. “The purported pleading[s] in the instant case[s] [do] not meet the statutory standards for a complaint as set forth in [OCGA § 9-11-9.1]; therefore, the denial of the motion[s] to dismiss was error.” Yeargin v. Burleson, 132 Ga. App. 652, 653 (4) (209 SE2d 99) (1974).

Decided October 17, 1988 —

Rehearings denied November 14, 1988

Bouhan, Williams & Levy, Wiley A. Wasden III, for appellant (case no. 76952).

Thomas A. Withers, for appellant (case no. 76953).

Joseph B. Bergen, Frederick S. Bergen, for appellees.

I share the special concurrence’s concern with the result of the application of the statute in this case in view of the fact that, in the prior suit, an appropriate affidavit had been submitted. However, this Court neither makes laws nor establishes the policy underlying their enactment. It is our duty to construe a relevant statute and to apply that construction to the case before us. If the proper construction of a statute demands a particular result, to vary that result in a manner not authorized by the statute as so construed would, in my opinion, be a violation of our obligation to “secure ... [a] just. . . determination of every action.” (Emphasis supplied.) OCGA § 9-11-1.

I am authorized to state that Chief Judge Birdsong, Presiding Judge McMurray and Judge Sognier join in this dissent.


author: Pope, Judge.

text:
    77031.
    SMITH v. THE STATE.
    (375 SE2d 69)
   Pope, Judge.

Defendant Derrick Smith appeals his conviction and sentence for the offense of aggravated assault.

1. In his seventh enumeration of error defendant asserts the general grounds. Construed so as to support the verdict, the evidence adduced at trial showed the following: The victim and approximately fifteen of his fraternity brothers were practicing a dance step for an upcoming show in a parking lot at or near the Georgia State University campus where they were students. The defendant and three companions walked by the students and started calling them names and throwing stones. The students tried to ignore the group but one of the stones hit the victim, who was standing in the front row, and he became angry and gave chase. Two of the victim’s fraternity brothers ran after the victim. The victim said he turned a corner and saw the defendant and his friends standing on a median; the defendant was leaning against a light post and was pointing an object in the victim’s direction. The defendant fired two shots, the second of which ricocheted off a nearby pole and hit the victim. The victim stated that the defendant, who was dressed in a bright yellow shirt, had a distinctive haircut and was taller than his other companions, “stuck out like a sore thumb.” The two fraternity brothers who ran after the victim also identified the defendant as having the gun and firing the shot that hit the victim. The officer of the Georgia State University Police Department who apprehended the defendant testified that he saw the defendant with the gun in his hand, but that the defendant handed it to one of his companions who threw it in the bushes and “took off running.” The officer apprehended the defendant but his companions escaped.

Applying the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we find the evidence was sufficient to enable a rational trier of fact to find the defendant guilty of the crime charged beyond a reasonable doubt. Accord Johnson v. State, 185 Ga. App. 167 (1) (363 SE2d 773) (1987).

2. Defendant also contends that the trial court erred in failing to instruct the jury that a reasonable doubt can arise from the lack of evidence presented at trial. However, the record reveals that the charge given was requested by the defendant; consequently, he cannot now assert the charge was erroneous. “ ‘Induced error is impermissible.’ ” Farmer v. State, 180 Ga. App. 720, 722 (350 SE2d 583) (1986); see also Edwards v. State, 235 Ga. 603 (2) (221 SE2d 28) (1975). Moreover, the charge adequately instructed the jury that the State had the burden of proving each essential element of the crime charged beyond a reasonable doubt. This enumeration affords no basis for reversal. Accord Conklin v. State, 254 Ga. 558 (6) (331 SE2d 532), cert. denied, 474 U. S. 1038 (1985); Foster v. State, 240 Ga. 858, 860 (242 SE2d 600) (1978).

3. Defendant next contends that the one-on-one show-up identification conducted at the scene of the crime immediately after his arrest and apprehension was unduly suggestive and prejudicial. We disagree. The record shows that the crime took place in a well-lighted area in the presence of several witnesses, all of whom expressed absolute certainty as to the identity of the defendant as the perpetrator of the crime. All the witnesses stated that the defendant was noticably taller than his companions and described him as wearing a bright yellow shirt and having a unique hairstyle. The identification occurred within minutes of the crime and the Georgia State officer who apprehended the defendant testified that he saw the gun in the defendant’s hand. “ ‘[0]ur appellate courts have consistently upheld the admission of in-court identifications when prior one-on-one showups are reasonably and fairly conducted at or near the time of the offense. (Cit).’ . . . [Under the facts here, and] taking into consideration the totality of the circumstances as outlined in Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972), and reiterated in Burks v. State, 174 Ga. App. 304 (329 SE2d 590) (1985), we find that the identification process falls within the sanctioned limits and that this enumeration is without merit.” (Indention omitted.) Bosworth v. State, 178 Ga. App. 86, 87 (342 SE2d 22) (1986); accord Manora v. State, 179 Ga. App. 791 (3) (347 SE2d 727) (1986).

4. We also find no merit to defendant’s assertion that the trial court erred in not giving his request to charge on identification in its entirety. “If the trial court gives a full and correct charge on an issue warranted by the evidence and covers the substance of what is requested, it is never error to decline to give the charge in the exact language requested.” Mathis v. State, 184 Ga. App. 455, 457 (361 SE2d 856) (1987); accord Daniels v. State, 184 Ga. App. 689 (2) (362 SE2d 775) (1987).

5. Defendant contends that his trial counsel was ineffective. Although a hearing was held on this issue after the trial, a transcript of that hearing has never been made available to this court, despite appellate counsel’s representation that the transcript would be forthcoming. Consequently, the only evidence we have concerning this enumeration is the trial court’s order, in which the court made extensive findings concerning trial counsel’s performance both prior to and during trial. Based on the record before us, we agree that defendant did not carry his burden of demonstrating ineffective assistance of counsel. Cf. Weeks v. State, 258 Ga. 662 (374 SE2d 532) (1988); Pitts v. State, 231 Ga. 638 (203 SE2d 515) (1974).

6. In his fifth enumeration of error defendant argues that the State made an improper and prejudicial statement to the jury during closing argument. “ ‘(I)t has been held that, unless the court’s attention is called to such improper argument and a ruling invoked upon the trial, it is too late to raise the point for the first time in a motion for new trial.’ [Cit.] ‘When an improper argument is made, whether substantive or procedural, opposing counsel has a duty to act by interposing an objection.’ [Cit.]” Williams v. State, 251 Ga. 749, 801 (312 SE2d 40) (1983). Consequently, this enumeration is without merit.

7. Defendant also complains of the introduction of State’s Exhibit Number 6, which was a photograph of the defendant taken shortly after the incident in question. Although defendant objected to the admission of the evidence, he did not state the basis of his objection at trial. “ ‘It is well settled in this state that while evidence may be subject to objection, yet if the only objection made was not properly sustainable or not made on the proper ground, no reversible error is committed by the trial court in allowing the evidence to be submitted to the jury. (Cit.) Thus what would perhaps otherwise be a valid reason why evidence should not be admitted will not be considered on appeal unless that specific reason was urged below. (Cits.)’ [Cit.]” Thaxton v. State, 184 Ga. App. 779, 781 (362 SE2d 510) (1987).

Decided November 14, 1988.

John A. Pickens, for appellant.

Lewis R. Slaton, District Attorney, Richard E. Hicks, Doris L. Downs, Assistant District Attorneys, for appellee.

Moreover, we have examined defendant’s contention that the photograph should not have been admitted on the basis of the testimony of the victim, and find it to be without merit. See generally Farmer v. State, supra at (2).

8. Defendant’s final enumeration concerns evidence apparently sought to be admitted at the ineffective assistance of counsel hearing. However, as stated in Division 5, supra, that transcript has not been provided to this court. “Assertions of fact made in briefs of counsel but not supported by the trial record or transcript, as appropriate, do not constitute evidence which this court can consider on appeal.” Jones v. State, 185 Ga. App. 595 (1) (365 SE2d 153) (1988).

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: Benham, Judge.

text:
    77068.
    CARRUTH v. ROBERTS.
    (375 SE2d 499)
   Benham, Judge.

Appellant Carruth was arrested on December 19, 1985, and incarcerated until December 24, 1985. He initiated this action against his credit union and appellee Roberts d/b/a Accredited Adjustment Bureau, a collection agency employed by the credit union, for false arrest, false imprisonment, malicious use of process, and intentional infliction of emotional distress. This appeal follows the trial court’s grant of summary judgment to appellee and the credit union.

Appellant borrowed money from the credit union to purchase a truck, a boat, and a boat trailer, and secured the loan with the items. When he became delinquent in his payments, the credit union turned the account over to appellee, whose agent repossessed the truck. The boat and trailer, however, could not be located. Appellant told appellee’s agent he did not have possession of the boat, but that he would get it. When appellant failed to produce the collateral, the agent filed a writ of possession to which appellant did not respond. The writ issued and was forwarded to the sheriff, who was unsuccessful in procuring the boat and trailer. On December 16, 1985, the court that issued the writ issued an order directing appellant or the party in possession to turn over the property to the sheriff, and warning that failure to obey could be punished as contempt of court. Two days later, that court issued an order authorizing the sheriff to arrest appellant for contempt of court. Appellant was arrested and incarcerated the next day, December 19. He was released on December 24 when his attorney and his brother secured possession of the boat and trailer from an undisclosed part-owner and made arrangements to deliver them to appellee’s agent on December 26. Four months later, the court that issued the order authorizing appellant’s arrest held a hearing at which appellee did not appear, and concluded that since no hearing had been held on the contempt, appellee had acted prematurely in submitting to the court the proposed order that the court signed on December 18, authorizing appellant’s arrest. Appellant subsequently filed this lawsuit.

“[W]here the alleged contumacious conduct is disobedience to a mandate of the court, not an act in the presence of the court or so near thereto as to obstruct the administration of justice, the law requires that a rule nisi issue and be served upon the accused, giving him notice of the charges against him, and that he be given an opportunity to be heard. [Cits.] ‘The notice given by the rule nisi is to afford the accused a reasonable time in which to prepare his defense to the charge that he had violated the court’s order. [Cit.]’ ” Anthony v. Anthony, 240 Ga. 155 (1) (240 SE2d 45) (1977). Appellant was denied due process of law in that he was arrested and incarcerated for an allegedly contumacious act committed outside the presence of the trial court without being given an opportunity to be heard. See Martin v. Waters, 151 Ga. App. 149 (2) (259 SE2d 153) (1979). The issue before this court is whether there exists a genuine issue of material fact concerning appellee’s liability for the torts appellant alleges were committed.

1. We first address appellant’s contention that summary judgment to appellee on the allegation of false arrest was inappropriate.

“An arrest under process of law, without probable cause, when made maliciously, shall give a right of action to the party arrested.” OCGA § 51-7-1. Appellant was arrested under process of law since the judicial order authorizing the sheriff to arrest appellant for contempt of court “was in the nature of a warrant. [Cit.]” Butler v. Tattnall Bank, 140 Ga. 579, 584 (79 SE 456) (1913). “Lack of probable cause shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused.” OCGA § 51-7-3. The deposition of appellee’s agent is replete with evidence of the agent’s attempt to procure the property legally. He cooperated with appellant for several months in the hope that appellant would obtain possession of the property and turn it over to him; he filed for and had a writ of possession issued; after researching similar cases, he presented to the court several proposed orders in an effort to gain possession of the missing property; and he apprised the court of the history of the case. The agent testified that he wanted the property or appellant arrested after the December 16 order did not induce appellant to comply, and he was unaware that a person in appellant’s position was entitled to a hearing before being subject to arrest for contempt of court. There is no evidence in the record that appellee’s agent proceeded for any reason other than the desire to obtain possession of the boat and trailer legally. In this case, the existence of probable cause is not a question for the jury since whether the circumstances alleged to show probable cause actually amount to probable cause is a question of law. Melton v. LaCalamito, 158 Ga. App. 820 (2b) (282 SE2d 393) (1981). Appellee’s agent is further insulated from liability by the fact that the court which issued the arrest order, despite knowing the history of this case, in effect issued an improper arrest order rather than a rule nisi. The trial court’s improper action does not strip appellee’s agent of the protection of OCGA § 51-7-3, and summary judgment in appellee’s favor was warranted.

2. Appellant also sought damages from appellee for false imprisonment. “False imprisonment is the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty.” OCGA § 51-7-20. “ ‘In an action to recover damages for . . . false imprisonment, the only essential elements are the . . . detention and the unlawfulness thereof. [Cit.]’ With regard to the element of ‘unlawfulness’ in the tort of false imprisonment, the law has always made a fundamental distinction between a detention effectuated pursuant to process and a detention which is not predicated on process. ‘(A)n action for false imprisonment will lie where a person is unlawfully detained under a void process, or under no process at all, and cannot be maintained where the process is valid, no matter how corrupt may be the motives of the person suing out the process or how unfounded the imprisonment may be.’ [Cit.]” Williams v. Smith, 179 Ga. App. 712 (2) (348 SE2d 50) (1986). The judicial order authorizing the sheriff to arrest appellant for contempt of court, under which appellant was arrested and incarcerated, “was in the nature of a warrant. [Cit.]” Butler v. Tattnall Bank, supra at 584. The process having been properly issued, appellant’s detention was not a false imprisonment (Williams v. Smith, supra), and the trial court did not err in grating summary judgment to appellee.

3. We next turn to appellant’s allegations of malicious use and abuse of process. Contrary to appellee’s assertion, the Superior Court’s decision in Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986), did not mandate that appellant assert his claims for malicious abuse and use of process as a compulsory counterclaim to the underlying action, the foreclosure proceeding. Since the underlying action concluded in 1985, well before the Yost decision was handed down in June 1986, appellant’s allegations need not, indeed could not, have been brought in a compulsory counterclaim. See Easley v. Clement, 187 Ga. App. 799 (1) (371 SE2d 416) (1988); Ostroff v. Coyner, 187 Ga. App. 109 (3a) (369 SE2d 298) (1988). However, the merits of appellant’s allegations must be measured against the precepts of Yost. Id.

Decided November 14, 1988.

Adkins & Robertson, Morgan M. Robertson, for appellant.

Greene, Buckley, DeRieux & Jones, Cathleen M. Devlin, Greer, Klosik & Daugherty, John F. Daugherty, H. Clifton Cobb, for appellee.

Yost offers an opportunity for redress to a party damaged by another party’s assertion or defense of a claim, defense, or other position that lacks substantial justification, i.e., is “substantially frivolous, substantially groundless, or substantially vexatious.” Yost, supra, Division 13. It is undisputed that appellee had a writ of possession for the boat and trailer, with which appellant did not comply. Appellee’s agent testified on deposition that for two months appellant told him appellant would bring the boat to appellee’s agent, and that appellant declined to ask the possessor to release the boat to appellee’s agent. When the sheriff’s office also met with failure in its efforts to repossess the collateral, appellee’s agent, pursuant to advice from the sheriff’s office, prepared an order authorizing the sheriff’s office to arrest appellant for contempt of court should he fail to return the boat and trailer. When appellee’s agent presented the proposed order to the trial judge, he gave the judge a detailed history of the events leading to the proposed order, and the judge signed the order. Shortly thereafter, appellant was arrested by officers of the sheriff’s department acting pursuant to the order.

We agree with the trial court’s conclusion that no genuine issue of material fact remains with regard to appellant’s allegations of what is now known as abusive litigation. The actions of appellee’s agent did not lack substantial justification.

4. Appellant also sought damages for appellee’s intentional infliction of emotional distress. However, “[i]t is only where [emotional distress] is extreme that liability arises. . . . The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. . . .” Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 230 (335 SE2d 445) (1985). There being no evidence that appellee’s behavior triggered such distress upon appellant, it was not error to grant summary judgment to appellee.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


author: Sognier, Judge.

text:
    77275.
    COLUMBUS, GEORGIA v. STANTON et al.
    (375 SE2d 503)
   Sognier, Judge.

Fourteen agents who sell insurance policies issued by the State Farm insurance companies brought suit against Columbus, Georgia, to obtain refunds of certain business license fees levied against them by Columbus, Georgia, and paid under protest. The trial court granted the agents’ motion for summary judgment and Columbus, Georgia appeals.

The record reveals that there are four different State Farm insurance companies. The original company, State Farm Mutual Automobile Insurance Company, writes mainly automobile insurance and is a mutual company owned by its policyholders. The three other companies, State Farm Life Insurance Company, State Farm Fire and Casualty Company, and State Farm General Insurance Company, are wholly owned subsidiaries of the original company, and sell life insurance, homeowners insurance, and certain high risk coverages, respectively. Within appellant’s limits, with the exception of one agent who is a salaried company employee, State Farm insurance policies are sold only through what State Farm terms “independent agents.” These agents are independent in the sense that they are not salaried employees of the State Farm companies, but rather furnish and pay for their own offices and supplies and retain a percentage of the premiums on the State Farm policies they sell. However, as opposed to some other “independent agents,” they sell only State Farm insurance policies.

State Farm was assessed and paid a license fee of $600 ($150 for each of the companies) for the office it operates and maintains, through its salaried employee, within appellant’s limits. Those fees are not in issue here. Appellant also assessed a license fee of $600 ($150 for each insurance company whose policies were sold) upon each independent agent. The sole issue in this appeal is whether the trial court correctly decided that all license fees in excess of the first $150 for each agent were unauthorized under the applicable statutes and ordinances.

OCGA § 33-8-8 (b) (1) provides that municipal corporations may impose and collect annual license fees on “each insurance company doing business within the municipal corporate limits . . . and an additional annual license fee in the same amount for each separate business location in excess of one operated and maintained by such company within the same municipality.” Under the provisions of OCGA § 33-8-8 (d), “ [i]nsurance agencies which are maintained and operated by a company may not be separately licensed by municipal corporations except under the provisions of this Code section; but nothing contained in this Code section shall prevent municipal corporations from separately imposing and collecting business licenses from independent insurance agencies or brokers doing an insurance business not otherwise taxed under this Code section.”

Columbus Code § 19-131 provides for the levy of an annual license fee of $150 “upon each insurer doing business within Columbus, Georgia” and “[f]or each separate business location in excess of one . . . which is operating on behalf of insurers within Columbus, Georgia.” The term “insurer” is defined as “a company which is authorized to transact business in any of the classes of insurance designated in O.C.G.A. [§] 33-3-5.” Columbus Code § 19-133 provides for the levy of a $150 annual license fee “upon independent agencies and brokers for each separate business location [within Columbus, Georgia] from which an insurance business is conducted and which is hot subject to the company license fee imposed by section 19-131.”

We begin our analysis by determining whether the independent agencies involved in this appeal are “operated and maintained” by the insurer within the meaning of OCGA § 33-8-8 (b) (1), thus making them “subject to the company license fee imposed by section 19-131.” If they are, then the additional fees imposed are correct, being in conformity with both the ordinance and the statute. If they are not, then we must decide whether the additional license fees may be authorized under Columbus Code § 19-133.

The record reveals that all 14 appellees submitted affidavits in support of their motion for summary judgment, each of which contained statements by an agent that he or she, as opposed to the insurer, “operates and maintains” his or her place of business. All the agents stated that they were responsible for their own office, supplies, and personnel, and were not salaried by the insurer but were compensated by earning a commission based on a percentage of the premium paid by those purchasing insurance policies. As the statements in these affidavits are uncontroverted, we cannot say the agencies were “operated and maintained” by the insurer. Although arguably the agencies could be multiple licensed under that portion of Columbus Code § 19-131 which provides that a fee may be imposed on each separate location “operating on behalf of insurers” (emphasis supplied), the language in that ordinance does not conform to the enabling language of the statute, which provides that municipalities may impose license fees on agencies “operated and maintained” by insurers, rather than “operating on behalf of” insurers. As OCGA § 33-8-8 (a) provides that “the State of Georgia preempts the field of imposing taxes . . . upon insurance companies and their agents and other representatives . . . and no . . . municipality . . . shall impose, levy, charge, or require the same, except as provided in this chapter,” any attempt by Columbus, Georgia to impose a license fee not in accordance with the Chapter is void. See Nash v. Nat. Preferred Life Ins. Co., 222 Ga. 14, 21-22 (3) (148 SE2d 402) (1966). Appellant could not, therefore, impose the multiple license fees on appellees under the authority of OCGA § 33-8-8 (b).

Decided November 14, 1988.

E. H. Polleys, Jr., for appellant.

James E. Humes II, for appellees.

The only other statutory provision under which authority for the assessment of multiple license fees upon each of appellees might be argued is OCGA § 33-8-8 (d), which authorizes a municipality to collect and levy license fees upon independent agencies not otherwise taxed under the Code section. However, the ordinance enacted by appellant under the authority of that statute, Columbus Code § 19-133, permits the imposition of such license fee on an agency only “for each separate business location from which an insurance business is conducted,” and it is uncontroverted that each agency in the case sub judice has only one business location. We note that we need not decide whether appellees actually qualify as “independent insurance agencies” within the meaning of the statute so as to authorize the imposition of even a single license fee, since they have agreed that they do, and have paid the business license fee for an independent agency without protest.

Because the governing statute does not authorize the assessment of multiple license fees upon appellees as agencies operated and maintained by an insurer, and the applicable ordinance does not permit the levy of multiple license fees on these independent agencies, we agree with the trial court that imposition of the additional license fees on each of appellees was unauthorized under the applicable law, and consequently we affirm the judgment of the trial court.

Judgment affirmed.

Deen, P. J., and Carley, J., concur.

       Columbus, Georgia, a consolidated government consisting of Muscogee County and the City of Columbus, has all of the governmental and corporate powers, duties and functions formerly held by the City of Columbus, a municipal corporation. See Ga. L. (Extraordinary Session), p. 2101 et seq.


author: Banke, Presiding Judge.

text:
    77445.
    THE STATE v. SPEIR.
    (375 SE2d 298)
   Banke, Presiding Judge.

The appellee was convicted in the Probate Court of Pike County on an accusation charging him with operating a motor vehicle “while under the influence of alcohol and/or drugs (DUI).” He appealed to superior court, where the conviction was reversed based on the state’s asserted failure to submit evidence that he had been under the influence of alcohol or drugs to the extent that he was a “less safe” driver on the occasion in question. See generally § 40-6-391 (a) (1-3). The state thereupon filed the present appeal. Held:

1. The appellee contends that “the state has no right to appeal because of OCGA § 5-6-33 (a),” which provides as follows: “(1) Either party in any civil case and the defendant in any criminal proceeding in the superior, state, or city courts may appeal from any sentence, judgment, decision, or decree of the court, or of the judge thereof in any matter heard at chambers. (2) Either party in any civil case in the probate courts provided for by Article 6 of Chapter 9 of Title 15 may appeal from any judgment, decision, or decree of the court, or of the judge thereof in any matter heard at chambers.”

This contention is without merit, inasmuch as subsection (b) of § 5-6-33 specifies that “[t]his Code section shall not affect Chapter 7 of this title.” Chapter 7 deals specifically with appeals by the state in criminal cases; and pursuant to OCGA § 5-7-1 (2), the state is authorized to appeal “[f]rom an order, decision, or judgment arresting judgment of conviction upon legal grounds.” As the present appeal falls squarely within that category, the appellee’s motion to dismiss the appeal is denied.

2. The state contends that it was not required to prove that the appellee was under the influence of alcohol to the extent that he was a “less safe” driver because it was proceeding under subsection (4) of OCGA § 40-6-391 (a), rather than subsections (1) — (3). See generally Lester v. State, 253 Ga. 235 (320 SE2d 142) (1984). The appellee, on the other hand, contends that he was not charged under subsection (4) and consequently could not be convicted under it. Pretermitting that issue, we affirm the superior court’s reversal of the appellee’s conviction based on the state’s failure to introduce admissible evidence that he was operating a motor vehicle on the occasion in question.

The only evidence offered by the state to establish this element of the offense consisted of the testimony of the state patrolman who initiated the prosecution. He stated that upon responding to a call to investigate an accident involving an overturned dune buggy, he was advised by certain persons already at the scene that the driver of the wrecked vehicle had been the appellee and that he had already been transported to the hospital. Upon proceeding there, the patrolman found the appellee lying unconscious in the emergency room. The patrolman testified that he determined by running a computer check on the tag number of the wrecked dune buggy that the vehicle was registered to the appellee; however, no documentary evidence was offered to substantiate this testimony. Similarly none of the ambulance personnel or other persons who had been present at the accident scene were called as witnesses.

Decided November 14, 1988.

Johnnie L. Caldwell, Jr., District Attorney, Anne Cobb, Assistant District Attorney, for appellant.

Virgil L. Brown, for appellee.

While the statements made to the patrolman at the accident scene might have been admissible to explain his conduct, the content of these out-of-court statements clearly was not probative of any of the matters asserted therein. See Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982); Teague v. State, 252 Ga. 534 (314 SE2d 910) (1984). The officer’s testimony concerning the results of the computer check was similarly without substantive probative value. “Testimony concerning information acquired solely through books and records kept by a third person is inadmissible, as hearsay.” Sabo v. Futch, 226 Ga. 352 (1) (175 SE2d 16) (1970). Accord Hall v. State, 244 Ga. 86, 92 (n. 5) (259 SE2d 41) (1979). The proper method of offering proof on this issue would have been through the introduction of a properly authenticated printout of the computer record rather than by the patrolman’s testimony alone. See generally Cotton v. John W. Eshelman & Sons, 137 Ga. App. 360 (3), 363-5 (223 SE2d 757) (1976).

The appellee objected vigorously to the hearsay portions of the patrolman’s testimony; and, even if he had not, “[i]t is well settled in Georgia that inadmissible hearsay evidence, even when admitted without objection, has no probative value. (Cit.)” Johnson v. State, 147 Ga. App. 94 (248 SE2d 170) (1978). “[A] judgment right for any reason must be affirmed.” Simmons v. Boros, 255 Ga. 524, 525 (341 SE2d 2) (1986); Smith v. State, 131 Ga. App. 722, 724 (206 SE2d 711) (1974). As there was no probative evidence, either direct or circumstantial, tending to place the appellee at the scene of the accident, we must affirm the judgment of the superior court setting aside the appellee’s conviction.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


author: Deen, Presiding Judge. Carley, Judge, Benham, Judge,

text:
    76387.
    HARVEY FREEMAN & SONS, INC. v. STANLEY et al. HARVEY FREEMAN & SONS, INC. v. RIVERS et al.
    76388.
    (375 SE2d 261)
   Deen, Presiding Judge.

Appellee-plaintiffs are minor female residents of an apartment complex owned by appellant-defendant. Appellees filed separate complaints against appellant, each alleging that she had been subjected to an ongoing series of sexually abusive acts which had been committed by Mrs. Sandy Clark and her husband.

Appellant answered, denying the material allegations of appellees’ complaints. After a period of discovery, appellant filed a motion for summary judgment in each case. The trial court granted the motions as to appellant’s liability under the theory of respondeat superior. However, the trial court denied the motions as to appellant’s liability for its own alleged negligent hiring or retention of the resident manager. The trial court certified for immediate review its denials of appellant’s motions for summary judgment. Appellant’s applications to this court for an interlocutory appeal were granted. Because appellant’s appeals are based upon essentially the same factual occurrences and raise the identical legal issues, they are hereby consolidated for disposition in this single opinion.

The evidence showed that Sandy Clark was a resident manager of Bingham Court Apartments owned by Harvey Freeman & Sons, Inc., at the time the alleged events occurred. Mrs. Clark, as resident manager, and her husband, Daniel Clark, were provided an apartment on the premises. At the apartment complex the Clarks repeatedly participated in illegal and immoral conduct on the premises of Bingham Court Apartments of which other employees of Harvey Freeman had knowledge. For example, the Clarks engaged in swapping sexual partners with other residents of the apartments; Mrs. Clark admitted to having had lesbian relations with another tenant; and other residents testified that they were asked by the Clarks to be involved in a sexual threesome.

Additionally, the Clarks possessed, used, and sold drugs on the premises of Bingham Court Apartments. Mrs. Clark admitted in her deposition testimony that Jenny Raff a, the assistant manager, was aware of such conduct. Also, several tenants testified that the Clarks’ possession, use, and sale of illegal drugs was “common knowledge” at the apartment complex.

The acts appellees complain of occurred during the summer of 1985. During this time, both young girls were tenants of Bingham Court Apartments; one appellee was 14 years old; the other appellee was 13 years old at the start of the summer, but became 14 years old on July 5th.

On June 28, 1985, Dan Clark led one appellee to the resident manager’s unit to “show her something.” Once inside, Clark forced sexual relations with her. Subsequent to this occurrence, Sandy Clark attempted to make her take oral contraceptives.

The second incident occurred later in July, when the Clarks had arranged to take both appellees on a camping trip to the lake. Although they were scheduled to leave on Friday, the Clarks were not prepared, so the two girls spent the night at the Clarks’ apartment. During the evening, the Clarks supplied the girls with alcohol and marijuana, and then insisted that the two minors undress and take a shower with them. After the shower, the two were led to the bedroom where both Sandy and Dan Clark fondled them.

Because the young girls were confused and felt that what had occurred the night before would be inexplicable to their parents, the appellees made the trip to the lake with the Clarks the following day instead of going home. Once at the lake, however, they realized the Clarks intended to repeat the same conduct of the night before. One appellee was able to procure a ride back to the apartments on a motorcycle, but, because no other form of transportation was available, the other appellee was forced to stay. During the course of the day, the Clarks supplied this appellee with marijuana laced with cocaine. Later, both Sandy and Dan Clark fondled her and, despite her protests, Dan proceeded to have sexual intercourse with her. Held:

1. Appellant contends that the theory of negligent hiring/retention is conceptually inappropriate under the facts of the present case, relying on Lear Siegler, Inc. v. Stegall, 184 Ga. App. 27 (360 SE2d 619) (1987), which states: “An examination of the cases dealing with negligent hiring reveals that in each instance, at the very least the tortious act occurred during the tortfeasor’s working hours or the employee was acting under color of employment. [Cits.]” Lear Siegler, supra at 28.

In Lear Siegler, the defendant’s employee had an automobile accident while he was driving a company-supplied vehicle to work. The plaintiff claimed that the defendant was negligent in its hiring of the employee, but this court held that “under the facts of this case” the theory of negligent hiring was conceptually inapplicable. Id. In effect, the holding in Lear Siegler acts to shield employers from liability for those torts his employee commits on the public in general. In the present case, however, the alleged tortious conduct was 'committed, not on the public in general, but on two young girls who were associated with appellant through a landlord-tenant relationship. Because of the special relationship existing between appellant and appellees in the present case, the potential direct liability of employers would not rest simply upon their hiring or retention of an employee without regard to whether the employee had committed a tort while ostensibly acting in the capacity of employee.

Furthermore, as landlord, Harvey Freeman chose to bestow the comprehensive duties of resident manager to Sandy Clark. Mrs. Clark testified in her deposition that as resident manager, she was expected to be available to the tenants 24 hours a day.

The facts of this case do not fit the rule of Lear Siegler. It is for the jury to determine whether appellant, as landlord, sufficiently fulfilled its duty to exercise ordinary care in the hiring/retention of Clark.

2. Appellant also contends that there was no evidence showing that it had actual or constructive knowledge that the Clarks presented a danger to the residents of Bingham Court Apartments, and that the trial court erred in allowing information possessed by the assistant manager, Jenny Raffa, to be imputable to appellant. Both contentions are without merit.

(a) The appropriate standard of care in a negligent hiring/retention action is whether the employer knew or should have known the employee was not suited for the particular employment. Cherry v. Kelly Sucs., 171 Ga. App. 235 at 236 (319 SE2d 463) (1984); Lear, supra. Mrs. Clark, in her deposition testimony, admitted that her drug use and Mr. Clark’s was common knowledge among the other apartment dwellers. Also, the evidence shows that several of the tenants and employees of Bingham Court knew of the Clark’s sexual perversity. Therefore, a sufficient evidentiary basis existed creating a genuine issue of fact as to whether Harvey Freeman had either actual or constructive knowledge of the Clarks’ tendencies.

(b) Concerning the contention that the knowledge of the assistant manager cannot be attributable to him, knowledge of an employee’s superior concerning practices of that employee is attributable to the corporation. American Oil Co. v. McCluskey, 119 Ga. App. 475, (167 SE2d 711) (1969).

As assistant manager, Raffa was required to assume the duties of resident manager if Sandy Clark was unavailable or if the necessity otherwise arose. Because Sandy Clark was responsible for illegal and immoral conduct on the apartment premises, and the evidence shows that Raffa knew of this conduct, Raffa then was required to assume the role of resident manager and rectify the situation. Under these circumstances and American Oil, Raffa’s knowledge is imputable to the appellant corporation.

3. Appellant claims the trial court erred in failing to determine that appellees’ cause of action is barred by the doctrine of assumption of risk as provided by OCGA § 51-11-7: “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.” (Emphasis supplied.) That Code section, however, has no bearing in this case, because the injurious acts were intentional sexual assaults, and not merely negligent acts.

Judgments affirmed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., and Pope, J., concur. Carley, Sognier and Benham, JJ., dissent. Beasley, J., concurs in the judgment only of the dissent.

Carley, Judge,

dissenting.

I cannot concur in Division 1, wherein the majority affirms the trial court’s denial of appellant’s motion for summary judgment on the issue of its liability for the alleged negligent hiring or retention of Mrs. Clark. After reviewing the record, I am convinced that the instant case is controlled by our decision in Lear Siegler, Inc. v. Stegall, 184 Ga. App. 27 (360 SE2d 619) (1987). Accordingly, I must respectfully dissent.

“Where a servant departs from the prosecution of his business and commits a tort while acting without the scope of his authority, the person employing him may still be liable if he failed to exercise due care in the selection of his servant.” Renfroe v. Fouche, 26 Ga. App. 340 (3) (106 SE 303) (1921). However, “[a]n examination of the cases dealing with negligent hiring reveals that in each instance, at the very least the tortious act occurred during the tortfeasor’s working hours or the employee was action under color of employment. [Cits.]” Lear Siegler, Inc. v. Stegall, supra at 28. The evidence of record in this case shows that Mrs. Clark was employed to work in the leasing office of appellant’s apartment complex from the hours of 9 a.m. to 5:30 p.m. It is undisputed, however, that the sexual conduct attributed to Mrs. Clark and her husband did not occur during those scheduled office hours. See Lear Siegler, Inc. v. Stegall, supra. Compare C. K. Security Systems v. Hartford Accident &c. Co., 137 Ga. App. 159 (223 SE2d 453) (1976). It is also undisputed that no sexual misconduct ever occurred in the leasing office itself. See Lear Siegler v. Stegall, supra. Compare Slaton v. B & B Gulf Svc. Center, 178 Ga. App. 701, 702 (2) (344 SE2d 512) (1986).

The majority presumably finds that the conduct occurred during Mrs. Clark’s “working hours” or “under color” of her employment merely because she was on 24-hour call as the resident manager. Under this theory, however, the potential direct liability of employers would rest simply upon their hiring or retention of an employee to be on 24-hour call without regard to whether the employee had committed a tort while ostensibly acting in the capacity of a 24-hour on-call employee. Employers would be exposed to potential direct liability for any and all torts which were committed by their 24-hour on-call employee, even if the commission of those torts had no connection whatsoever with the underlying employment and were entirely personal to the employee himself.

That the tort of negligent hiring or retention of an employee does not extend so far as the majority finds was implicitly but unquestionably decided in Lear Siegler u. Stegall, supra. There, the employer had provided the employee with a car. While driving the car to work, the employee collided with another vehicle. This court held: “[B]ut for the fact that he was driving an automobile provided by [his employer], [the employee’s] posture at the time of the collision was no different from any other employee driving to work. We decline to extend the parameters of the cause of action for negligent hiring so as to require every business whose employees drive to work to investigate those employees’ driving records before hiring, or expose themselves to liability.” Lear Siegler v. Stegall, supra at 28-29. Likewise in this case, but for the fact that Mrs. Clark was the resident manager of appellant’s apartment complex, her status at the time the alleged tortious acts occurred was no different from any other resident of the complex. Mrs. Clark did not use her employment status to gain entry to appellees’ apartments to perpetrate any tortious acts. Compare Southern Bell Tel. &c. Co. v. Sharara, 167 Ga. App. 665 (1) (307 SE2d 129) (1983). Mrs. Clark did not use her employment status to gain appellees’ trust and confidence so as thereby to induce them into participating in the alleged acts. Compare Edwards v. Robinson-Humphrey Co., 164 Ga. App. 876, 879 (3) (298 SE2d 600) (1982). By hiring and retaining Mrs. Clark as the resident manager, appellant exposed appellees to no more potential for being harmed than had appellant accepted and retained Mrs. Clark as a tenant. There is simply no connection between Mrs. Clark’s employment and the tortious acts she and her husband allegedly committed against appellees.

If appellees have any claim against appellant, it is not in appellant’s capacity as the employer of Mrs. Clark, but in appellant’s capacity as the owner of the apartment complex who failed to exercise ordinary care to protect them from the misconduct of other tenants. See generally Razdan v. Parzen, 157 Ga. App. 848 (278 SE2d 687) (1981); Veterans Organization of Fort Oglethorpe v. Potter, 111 Ga. App. 201 (141 SE2d 230) (1965); Georgia Bowling Enterprises v. Robbins, 103 Ga. App. 286 (119 SE2d 52) (1961). I express no opinion, however, as to whether the respondeat superior counts of appellees’ complaints state a cause of action against appellant in its capacity as the owner of the apartment complex or, if so, whether summary judgment was or was not properly granted or denied as to such claims. Appellees have filed no cross-appeals from the grant of appellant’s motions for summary judgment as to its liability under the theory of respondeat superior and that issue is not before us. As to the issue that is before us, however, I believe that the trial court erroneously denied appellant’s motion for summary judgment as to its direct liability for the alleged negligent hiring or retention of Mrs. Clark as its employee. Accordingly, I respectfully dissent.

Decided October 28, 1988 —

Rehearings denied November 15, 1988

R. Chris Irwin & Associates, R. Chris Irwin, Kathleen M. Pacious, for appellant.

Calabro, Vogel & Jennette, Michael M. Calabro, James R. Vogel, Larry F. Jennette, Jr., Long, Weinberg, Ansley & Wheeler, Marvin A. Devlin, for appellees.

I am authorized to state that Judge Sognier joins in this dissent.

Benham, Judge,

dissenting.

I am compelled by the judicial policy of stare decisis to concur in the conclusion reached in Judge Carley’s dissent that summary judgment on the issue of negligent hiring was improperly denied appellants.

This court has previously decided that the employee’s tortious conduct must have some connection with the employer’s business before the employer will be held liable for negligent hiring of the employee. Lear Siegler, Inc. v. Stegall, 184 Ga. App. 27 (360 SE2d 619) (1987). There is no evidence in the case at bar that the employee’s alleged tortious acts had any relationship to her duties as appellant’s employee. Implicit in the majority opinion is the idea that an employer should be responsible for negligently hiring an employee who is placed by the employer in a position in which there exists a potential for the infliction of harm on others. That theory was expressly rejected by a majority of this court in Lear Siegler v. Stegall. See id. (Benham dissent). Stare decisis dictates the conclusion of law which must be reached on this set of facts. See Norris v. Atlanta & West Point R. Co., 254 Ga. 684, 686 (333 SE2d 835) (1985). Since this court has not seen fit to overrule its holding in Lear Siegler, and the General Assembly has taken no action, we are bound by the judicial policy “tending to consistency and uniformity of decision. . . .” Mitchell v. State, 239 Ga. 3, 6 (235 SE2d 509) (1977).


text:
    76481.
    MACK v. THE STATE.
    (375 SE2d 458)
   Benham, Judge.

Following a bench trial, appellant was convicted of trafficking in cocaine. On appeal, he enumerates as error the denial of his motion to suppress as well as the trial court’s decision to call a recess during appellant’s trial.

1. Appellant contends his suppression motion should have been granted because the police conducted a warrantless search of his home; the search warrant executed by the police was issued without probable cause; and he was never informed of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), following his arrest.

A confidential informant told police that a known drug dealer at 2252 Hansen Street was supplied with cocaine by a man named Pinky who delivered the contraband in a Chrysler or a Cadillac, and who lived at 611 East 37th Street. On October 10, 1985, the police released to the known drug dealer a quantity of money seized during a search of her home. The serial numbers on the bills released to the drug dealer were recorded by police. After giving the drug dealer the money, an officer followed the woman and watched her enter the premises at 611 East 37th Street. Soon thereafter, the officer learned that the utility accounts for 611 East 37th Street were in the name of Rue Bennett. In surveillances of 611 East 37th Street, the officer saw parked there both the Chrysler and Cadillac mentioned by the confidential informant as well as a green and white El Camino registered to appellant at the East 37th Street address.

On November 1, 1985, investigating officers had a confidential reliable informant (CRI) attempt to make a controlled purchase of cocaine from the known drug dealer at the Hansen Street address. The CRI was unsuccessful but told the officers the drug dealer was expecting a delivery of cocaine by a black woman in ten minutes. Within ten minutes, a black woman driving the green and white El Camino seen at 611 East 37th Street parked in front of the Hansen Street address. The officers approached the woman, ascertained her identity as being Rue Bennett, and saw in plain view a plastic sandwich bag containing a white powdery substance that subsequently tested positive for cocaine. The woman was arrested and officers were sent to the East 37th Street address to secure the premises while the arresting officers secured a search warrant. Appellant was at his home on East 37th Street when the officers arrived, and refused to consent to a search of the premises. The officers conducted a “cursory search” of the premises to determine if anyone else was within the structure, and they then waited with appellant on the front porch of the home for the arrival of the search warrant. The search that ensued after the arrival of the search warrant uncovered $26,600 in currency; 48.8 grams of a white powdery substance that was 62.6 percent (30.3 grams) pure cocaine; and mannitol, razor blades, sandwich bags, and a triple beam scale.

After the cocaine taken from Rue Bennett field-tested positive for cocaine, one of the arresting officers executed an affidavit containing the facts summarized above to support his application for a search warrant for the premises at 611 East 37th Street. We conclude that, viewing the “totality of the circumstances,” the issuing magistrate “had a substantial basis” for concluding “there [was] a fair probability that contraband or evidence of a crime [would] be found [at appellant’s residence].” State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984). It was not error to issue the search warrant.

Nor was it error to deny suppression of the contraband and drug paraphernalia found in the search conducted pursuant to the warrant. “The only issue here is whether drugs and the other items not observed during the initial entry and first discovered by the [officers] . . . under an admittedly valid search warrant, should have been suppressed.” Segura v. United States, 468 U. S. 796, 804 (104 SC 3380, 82 LE2d 599) (1984). “Whether the initial entry was illegal or not is irrelevant to the admissibility of the challenged evidence because there was an independent source for the warrant under which that evidence was seized. Exclusion of evidence as derivative or ‘fruit of the poisonous tree’ is not warranted here because of that independent source. None of the information on which the warrant was secured was derived from or related in any way to the initial entry into [appellant’s home]; the information came from sources wholly unconnected with the entry and was known to the [officers] well before the initial entry. No information obtained during the initial entry or occupation of the [home] was needed or used by the [officers] to secure the warrant. It is therefore beyond dispute that the information possessed by the [officers] before they entered the [home] constituted an independent source for the discovery and seizure of the evidence now challenged.” Id. at 813-14. See also Murray v. United States, 487 U. S. — (108 SC 2529, 101 LE2d 472) (1988). It was not error to deny appellant’s motion to suppress on this ground.

3. Appellant next makes the assumption that he was under arrest when the officers initially arrived at his home and that any incriminating evidence discovered as a result of police questioning of him without benefit of Miranda warnings should have been suppressed. Assuming arguendo that appellant was arrested, he did not make incriminating responses during custodial interrogation. The evidence is that appellant’s attorney, after being presented with the search warrant and consulting with appellant, suggested to the officers that they “wouldn’t have to search much” if they went to the master bedroom. Inasmuch as there is no evidence that appellant was subjected to custodial questioning and made incriminating responses thereto, it was not error to deny appellant’s motion to suppress on this ground.

4. Finally, appellant takes issue with the trial court’s decision to call a recess when the assistant district attorney sought to keep the record open for the receipt of physical evidence not then present in court. The missing evidence was that seized from appellant’s co-defendant when she encountered officers in front of the Hansen Street address. Appellant was neither charged with nor convicted of any offense related to this contraband. Since appellant suffered no harm from the trial court’s decision to recess for the day, any error in the trial court’s action is not reversible error. Without harm there is no reversible error.

Decided September 6, 1988 —

Rehearing denied November 15, 1988

Michael A. Lewanski, Gregory V. Sapp, Harold J. Cronk, for appellant.

Spencer Lawton, Jr., District Attorney, John E. Morse, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


text:
    76634.
    SMITH v. DOE et al.
    (375 SE2d 477)
   Benham, Judge.

The issue to be resolved in this case is whether a plaintiff can maintain in a single lawsuit a John Doe action against an unknown hit-and-run driver and, in the alternative, an action against a named person whom the plaintiff accuses of being the tortfeasor. We answer the question in the affirmative and reverse the judgment below.

The collision out of which this action arose occurred while appellant was sitting in the back seat of a car in front of his home. Another car collided with the one in which appellant sat, injuring him. Appellant did not see who was driving the other car, but two eyewitnesses called out that the car across the street had hit the one in which appellant sat. Those same two witnesses and appellant subsequently identified from a photograph a vehicle owned and operated by Waters. Waters has denied involvement in the collision and, so far as the record shows, has not been charged with any offense arising therefrom.

Appellant filed suit against John Doe and then amended his complaint to add another count naming Waters as the tortfeasor. Appellant’s uninsured motorist carrier answered in the name of John Doe and moved for summary judgment on the ground that the tortfeasor was not unknown. In support of the motion, appellee points to the deposition testimony of appellant and his aunt and uncle, the eyewitnesses to the collision. In all three depositions, Waters’ car is identified as the one which struck the car in which appellant was sitting. However, the record also contains an affidavit by Waters in which he asserts that his car was not involved in a collision on that date or any other date.

1. Relying on State Farm &c. Ins. Co. v. Godfrey, 120 Ga. App. 560 (171 SE2d 735) (1969), the trial court granted summary judgment to John Doe, holding that, in Godfrey, “the Court stated that evidence concerning the identity of the driver previously said to be unknown creates no genuine issue of fact that the driver was unknown.” What this court actually said in Godfrey was as follows: “The evidence of the plea of guilty [by the person whom the insured had named in another suit as the tortfeasor] plus the other admissible and probative evidence . . . pierced the allegations of the complaint naming the defendant as John Doe (as the alleged unknown owner or operator of the vehicle causing injury or damage to the plaintiff). The evidence presented by the plaintiff and before the trial court (that the driver was unknown to him) in no way rebuts the evidence for the defendant that the driver of the vehicle was Hall and creates no genuine issue of fact that the owner or operator of the vehicle causing injury was unknown. [Cits.]” Id. at 564. It is clear, however, that in the present case the depositions of appellant and his aunt and uncle and the affidavit from Waters create a question of fact concerning Waters’ identity as the driver of the car involved in the collision, a question of fact which would clearly preclude the grant of summary judgment to appellant against Waters. That being so, Godfrey is distinguishable, as is Fidelity &c. Co. of N. Y. v. Wilson, 124 Ga. App. 444 (184 SE2d 21) (1971), where the identity of the tortfeasor was not in question.

2. The key to appellee’s defense in this case has been its insistence that the tortfeasor is “known.” In addition to asserting that there is no question of fact presented by the evidence, an assertion we have rejected above, appellee contends that appellant is bound by the allegation in the second count of the complaint that Waters is the tortfeasor. Appellee’s argument on this issue ignores the liberal pleading provisions of our Civil Practice Act which permit a plaintiff to assert inconsistent claims in a single pleading. “A party may . . . state as many separate claims or defenses as he has, regardless of consistency. . .” OCGA § 9-11-8 (e) (2). “The rules set forth in the Civil Practice Act ‘are intended to promote and not to obstruct the administration of justice and thus enable the Court to do substantial justice rather than to decide cases upon technicalities which have no relationship whatever to the rights of the parties to the litigation.’ [Cit.]” Mundt v. Olson, 155 Ga. App. 145 (270 SE2d 344) (1980). To adopt appellee’s restrictive view of pleadings would be contrary to both the letter and spirit of the CPA.

3. “The purpose of uninsured motorist legislation is to require some provision for first-party insurance coverage ‘to facilitate indemnification for injuries to a person who is legally entitled to recover damages from an uninsured motorist, and thereby to protect innocent victims from the negligence of irresponsible drivers.’ [Cit.] Uninsured motorist statutes are remedial in nature and must be broadly construed to accomplish the legislative purpose. [Cits.]” Smith v. Commercial Union &c. Co., 246 Ga. 50, 51 (268 SE2d 632) (1980).

Decided October 24, 1988 —

Rehearing denied November 15, 1988

John M. Beauchamp & Associates, Kermit S. Dorough, Jr., for appellant.

Allen & Kelley, Roy B. Allen, Jr., Divine, Wilkin, Deriso, Raulerson & Fields, W. Douglas Divine, for appellees.

Appellee’s position is that whenever a plaintiff in an action against John Doe subjectively believes a known person is responsible for the plaintiff’s damages, regardless of whether that person denies involvement, John Doe is entitled to summary judgment. This case demonstrates the potential for unfairness in that position. Since appellant and his witnesses have named Waters as the tortfeasor, and Waters has denied that his car collided with the one in which appellant sat, Waters’ involvement in the collision is a question for a jury. If the jury should find against appellant, that would establish that Waters was not the tortfeasor. That being so, the identity of the tortfeasor would be unknown, but the earlier grant of summary judgment to John Doe would foreclose a judgment against an unknown tortfeasor. Appellant would then be unable to obtain the judgment against the tortfeasor which is a condition precedent to recovery against the uninsured motorist carrier (Moss v. Cincinnati Ins. Co., 154 Ga. App. 165 (268 SE2d 676) (1980)). That situation is what the uninsured motorist statute was enacted to avoid, and to adopt appellant’s position would thwart its purposes.

We hold, therefore, that in a case such as the present one, where the plaintiff has named an actual person as tortfeasor, but that person denies involvement so as to create a question of fact concerning the identity of the tortfeasor, the plaintiff may maintain claims against both the alleged tortfeasor and John Doe. Out of an abundance of caution, we note that this holding applies only where it is identity, not solely liability, that is in question. Since there is such a question of fact in the present case, the grant of summary judgment to appellee was error.

Judgment reversed.

McMurray, P. J., and Pope, J., concur.