author:
McMurray, Presiding Judge. Deen, Presiding Judge,
      Bealsey, Judge,

text:
    75135.
    HANVEY v. THE STATE.
    (368 SE2d 357)
   McMurray, Presiding Judge.

Defendant was indicted and convicted of the offenses of rape, aggravated assault (with intent to murder) and a terroristic threat. Defendant’s appeal raises 18 enumerations of error. Held:

1. In enumeration of error 17 defendant contends there was a merger of the offenses. Enumerations of error 15, 16 and 18 raise the sufficiency of the evidence to authorize the conviction as to each offense. The State’s evidence shows that: The victim, who was 76 years of age at the time of the trial, had known the defendant for approximately a year prior to the date of the offenses. The defendant lived across the street from the victim with his parents. On the night of the offenses, it was late and the victim was asleep when defendant came to the window of the victim’s bedroom. The defendant identified himself and asked the victim to open the door so that he could call an ambulance for his sick mother. The victim went to the door and let the defendant into her home. After entering the house, the defendant dragged the victim into the bedroom, threw the victim on the bed, pulled the victim’s pajama pants down, and placed his penis into the victim’s vagina. While having intercourse with the victim, defendant placed a bed pillow over the victim’s face and told the victim he would smother her if she did not quit “screaming and hollering.” The victim testified that after defendant placed the bed pillow over her face she could hardly breathe. After defendant finished he got up off the bed and told the victim that if she called the police he would kill her and burn her house.

The victim’s testimony provided the only evidence as to defendant’s commission of the offense of a terroristic threat. OCGA § 16-11-37 (a) provides that no person shall be convicted under that subsection “on the uncorroborated testimony of the party to whom the threat is communicated.” As the victim’s testimony is uncorroborated defendant’s conviction for the offense of a terroristic threat was not authorized and the trial court erred in denying defendant’s motion for directed verdict of acquittal as to the offense of a terroristic threat.

As to the offense of aggravated assault (with intent to murder), defendant’s threat to smother the victim accompanied by his placing the pillow over her face so that she had difficulty breathing are sufficient to authorize this conviction. Zilinmon v. State, 234 Ga. 535, 539 (8) (216 SE2d 830); King v. State, 178 Ga. App. 343, 344 (1) (343 SE2d 401). In reaching this conclusion we reject defendant’s contention that the State was required to prove that the pillow was a deadly weapon. Such proof was not necessary in proving aggravated assault (with intent to murder). Paschal v. State, 125 Ga. 279, 280 (54 SE 172). Moreover, the indictment did not allege that the aggravated assault was made with “a weapon likely to produce death.”

In regard to the offense of rape, defendant contends that as the victim did not see the defendant place his penis in her vagina there is no direct evidence presented as to the element of carnal knowledge of the victim. However, there is no requirement that the victim’s testimony in this regard be predicated on the victim’s sense of vision. The victim may also give testimony predicated upon information gathered by other senses. In the case sub judice, the victim testified that she felt defendant’s penis in her vagina. Defendant’s contention is without merit. Also, contrary to defendant’s contention there is no longer any requirement of corroboration of the victim’s testimony in a rape case. Baker v. State, 245 Ga. 657 (266 SE2d 477).

Furthermore, our review of the transcript reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that defendant was guilty of the offenses of aggravated assault (with intent to murder) and rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Additionally, under the facts and circumstances of the case sub judice there was no merger of the offenses of aggravated assault and rape. OCGA § 16-1-7 (a); Pryor v. State, 238 Ga. 698, 700 (234 SE2d 918); State v. Estevez, 232 Ga. 316, 319, 320 (206 SE2d 475).

2. Defendant’s first enumeration of error contends that the trial court erred in overruling his motion to suppress. This contention arises from a search of defendant’s residence. The search warrant identified the items to be seized as, “[m]ens clothing having human blood or sperm on them . . .” During the search, officers also seized two magazines (Chic and Penthouse) which were introduced into evidence at trial for the limited purpose of showing defendant’s bent of mind. See Tyler v. State, 176 Ga. App. 96, 100 (2) (335 SE2d 691); Hill v. State, 183 Ga. App. 654, 656 (3) (360 SE2d 4). The State’s evidence is that the seizure of the magazines is governed by the “plain view” doctrine. See State v. Lyons, 167 Ga. App. 747 (307 SE2d 285); Johnson v. State, 170 Ga. App. 71 (1) (316 SE2d 160); Strickland v. State, 175 Ga. App. 224, 225 (1) (333 SE2d 140). Defendant’s evidence is that the magazines were not in plain view, but were the fruit of an illegal extension of the search. The resolution of the contradiction in the evidence rests with the trial court on the hearing of a motion to suppress evidence and must be accepted unless clearly erroneous. McShan v. State, 155 Ga. App. 518, 519 (2) (271 SE2d 659); State v. Watts, 154 Ga. App. 789, 790 (4) (270 SE2d 52). As the evidence authorized the factual conclusion of the trial court, this enumeration of error is without merit.

3. In his second enumeration of error defendant contends the trial court erred in granting the State’s motion in limine. The State’s motion, predicated on the rape shield statute, sought to preclude the defense mentioning or introducing evidence that the victim had syphilis. Defendant’s bodily fluids had been seized and tested for syphilis with negative results. Defendant argued that if the victim had syphilis and he did not, such supported his defense of mistaken identity.

At the hearing on the State’s motion in limine, the State contended that the initial positive test of the victim for syphilis was false and colloquy centered on whether competent evidence was available on the issue of whether the victim had syphilis. The trial court did not grant the State’s motion, but barred the use of incompetent hearsay evidence on the issue. The trial court also prohibited suggestion that the victim was infected until such was established by competent evidence. Defendant made no attempt at trial to introduce evidence as to the victim having syphilis. Under these facts and circumstances we find no error in the trial court’s ruling.

4. Defendant called as his witness a microanalyst employed by the state crime laboratory. This expert testified as to the results of his examination of a number of items taken from the victim’s house and from defendant’s home for the presence of fibers or hairs. This expert had, for comparison, known samples of the head hair and pubic hair of the victim and defendant. The expert testified that he did not find any hairs which could have been defendant’s on the items taken from the victim’s home, nor did he find any hairs which could have been the victim’s on items taken from defendant’s house. Defendant enumerates as error the trial court’s refusal to permit him to elicit further testimony from the microanalyst as to hairs found on items taken from the victim’s home which were neither the victim’s nor defendant’s. Defendant argues that such evidence is supportive of his mistaken identity defense. However, the hairs were found only on two items, a blanket and an afghan, which the victim testified she had purchased at a yard sale two or three days prior to the date of the crimes at issue, and which uncontradicted evidence shows did not come into contact with the victim’s assailant. “Admission of evidence is a matter which rests largely within the sound discretion of the trial court and an appellate court will not interfere with its rulings absent abuse of that discretion. Alexander v. State, 239 Ga. 108, 110 (236 SE2d 83). If an item of evidence has a tendency to establish a fact in issue, then it is relevant and admissible. Patterson v. State, 233 Ga. 724, 725 (213 SE2d 612). Georgia law favors admission of any relevant evidence no matter how slight its probative value. Baker v. State, 246 Ga. 317, 319 (271 SE2d 360).” Whisnant v. State, 178 Ga. App. 742, 743 (344 SE2d 536). Under these circumstances the testimony which defendant sought to elicit lacked any probative value, and therefore, was properly excluded. Alexander v. State, 7 Ga. App. 88 (66 SE 274); Butler v. State, 173 Ga. App. 168 (1) (325 SE2d 835).

5. Defendant’s fourth enumeration raises the denial of his motion for mistrial predicated on the trial court repeatedly overruling his objections to the presence in full view of the jury of exhibits not yet in evidence. A second ground of defendant’s motion for mistrial is the contention that the trial court displayed anger or animosity toward defense counsel for interposing the objection regarding the evidence.

The exhibits were present in view of the jury to facilitate their identification by a witness. The witness was in a wheelchair and did not use the usual witness chair, necessitating an unusual proximity to the jury. All of the items were identified and admitted into evidence (except one pair of blue jeans which was withdrawn, however, there was nothing inflammatory about this item which had been checked for bloodstains by the State serologist with negative results). Under these circumstances we find no prejudice to defendant. Early v. State, 170 Ga. App. 158, 163 (5) (316 SE2d 527); Ezzard v. State, 155 Ga. App. 594, 596 (4) (271 SE2d 728); Leonard v. State, 146 Ga. App. 439, 442 (3) (246 SE2d 450).

Nor does the record support defendant’s contention that the trial court’s conduct in its colloquy with defense counsel was in any way improper. The trial court’s denial of defendant’s motion for mistrial was within its discretion. Roberts v. State, 242 Ga. 634, 636 (4) (250 SE2d 482).

6. In his fifth enumeration of error defendant contends that the trial court erred in admitting into evidence State’s exhibits 8, 22 and 23, a pair of blue jeans and two magazines, due to a failure to prove a chain of custody for these exhibits. A sheriffs department investigator positively identified the three exhibits as items taken from defendant’s home during the search thereof. “ ‘Unlike fungible items, distinct physical objects which can be identified upon mere observation require no custodial proof for their admission.’ March v. State, 151 Ga. App. 637, 638 (2) (260 SE2d 761) (1979). Accord Starks v. State, 113 Ga. App. 780 (1) (149 SE2d 841) (1966); Norwood v. State, 238 Ga. 199 (2) (232 SE2d 70) (1977); Harper v. State, 251 Ga. 183, 185 (1) (304 SE2d 693) (1983).” Weaver v. State, 176 Ga. App. 639, 640 (1) (337 SE2d 420). See Thomas v. State, 171 Ga. App. 306, 308 (6) (319 SE2d 511).

7. The State presented the testimony of an expert witness, a forensic serologist, who tested known samples of defendant’s blood and saliva, as well as seminal stains on the sheets from the victim’s bed. This expert witness testified that defendant had type O blood and was a secreter (“these people . . . secrete their blood type into body fluids other than blood . . . you would be able to determine their blood type from saliva, seminal secretions and vaginal secretions”). The seminal stains were determined to be from a person of blood type 0 or type B. The expert testified that 45 percent of the population has blood type O and 12 percent blood type B, so that with consideration of the 80 percent of the population which would be secreters, this information suggests that 45 percent (80 percent of 57 percent) of the population could have perpetrated the rape of the victim.

Defendant’s sixth enumeration of error raises the trial court’s refusal to strike this testimony on the grounds that it was confusing and lacking in probative value. However, no matter how slight its probative value, as the evidence tends to establish a fact in issue it was properly admitted. The trial court did not err in denying defendant’s motion to strike the testimony of this witness. Whisnant v. State, 178 Ga. App. 742, 743 (1), supra.

8. In his seventh enumeration of error defendant contends the trial court erred in not allowing defendant to testify concerning the events of the execution of the State’s second search warrant (to seize blood, saliva, head hairs and pubic hairs). As the circumstances surrounding the execution of this search warrant are totally irrelevant to defendant’s guilt or innocence, this testimony was properly excluded. Alexander v. State, 7 Ga. App. 88, supra; Holmes v. State, 170 Ga. App. 92, 93 (2) (316 SE2d 491).

9. Defendant’s remaining enumerations of error involve the jury charge. Enumerations of error 8, 9 and 11 complain of the failure to give requested charges, the substances of which were contained in the trial court’s charge. “The failure to give requested instructions in the exact language requested, where the charge given substantially covers the same principles, is not grounds for reversal. Young v. State, 226 Ga. 553 (3) (176 SE2d 52) (1970); Fox v. State, 238 Ga. 387 (2) (233 SE2d 341) (1977).” Kelly v. State, 241 Ga. 190, 191 (4) (243 SE2d 857).

Enumerations of error 10 and 13 complain of the failure to give requested charges which are not accurate statements of law. Enumeration 10 involves the charge disapproved in Friar v. State, 253 Ga. 87, 89 (4) (316 SE2d 466), while enumeration 13 involves a request requiring corroboration of the testimony of a rape victim, which is no longer the law. Baker v. State, 245 Ga. 657, supra.

In enumeration of error 12 defendant “contends the trial court erred by failing to charge the jury that where two equal theories present themselves, the jury is obligated to accept that theory which is consistent with the defendant’s innocence. This requested charge is applicable only in cases dependent solely on circumstantial evidence. Griffis v. State, 163 Ga. App. 491, 492 (2) (295 SE2d 197) (1982).” Johnson v. State, 171 Ga. App. 91, 92 (2b) (318 SE2d 799). As the evidence in the case sub judice included direct evidence, particularly the testimony of the victim, the requested charge was not applicable.

In enumeration of error 14 defendant contends the trial court erred in instructing the jury on falsely sworn testimony. See OCGA § 24-9-85 (b). In Mauldin v. State, 167 Ga. App. 789, 791 (5) (307 SE2d 689), we held that “before this section may be charged ‘it must appear, among other things, that the witness admits, on the trial, that he wilfully and knowingly swore falsely, or the testimony must be such as to render the purpose to falsify manifest.’ Smith v. State, 74 Ga. App. 777 (2) (41 SE2d 541) (1947); Hill v. State, 159 Ga. App. 489 (2) (283 SE2d 703) (1981).” While defendant contends that the evidence adduced at trial did not authorize the charge at issue, this contention is not correct. Defendant’s testimony was irreconcilable with the State’s evidence, thus, the jury was authorized to conclude that defendant had sworn falsely to a material matter. This enumeration is without merit. See generally Taylor v. State, 83 Ga. App. 735 (2) (b), 736 (64 SE2d 598); Jones v. State, 70 Ga. App. 431 (3), 438 (28 SE2d 373).

Judgment affirmed in part and reversed in part.

Birdsong, C. J., Carley, Sognier and Benham, JJ., concur. Deen, P. J., Banke, P. J., Pope and Beasley, JJ., concur in part and dissent in part.

Deen, Presiding Judge,

concurring in part and dissenting in part.

I concur fully with the majority opinion, except for its reversal of Hanvey’s conviction for making terroristic threats. In that regard, I concur with Judge Beasley’s partial dissent.

In this case, late one night Hanvey pleaded with the 76-year-old victim to let him into her house so that he could call for an ambulance for his sick mother, who was a friend of the victim. The victim’s trusting and helpful response was greeted by Hanvey’s vicious assault and rape of the victim, during which he held a pillow over her face so that she could barely breathe. He left her alive but bloody and bruised, after threatening to kill her and burn her house if she ever called the police.

Hanvey’s cruel and inhumane attack on this elderly woman who was doing no harm to anyone was substantial. “His conduct toward her was reprehensible, and barely rises above that which is said to have prevailed among his remote forebears when they swung by their tails from limb to limb in the far reaches of the jungle enforcing a crude discipline by tooth and claw.” Fekany v. Fekany, 160 S. 192 (Fla. 1935). (Emphasis supplied.) While a portion of the asserted ancestry assessments in Fekany may be allegorical allegations, the bloody, brutal body-batterings of “tooth and claw” in the instant case are literal fact. This evidence authorized a rational trier of fact to find Hanvey guilty beyond a reasonable doubt of all the offenses charged, including making terroristic threats. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Bealsey, Judge,

concurring in part and dissenting in part.

I concur in all except Division 1 which reverses the conviction for the crime of terroristic threat.

“OCGA § 16-11-37 ‘does not specify how the testimony must be corroborated. “As in rape cases, the quantum of corroboration need not in itself be sufficient to convict, but need only be that amount of independent evidence which tends to prove that the incident occurred as alleged. [Cit.] Slight circumstances may be sufficient for corroboration and the question of corroboration is one solely for the jury. If there is any evidence of corroboration, this court will not go behind the jury verdict and pass on its probative value. [Cit.] . . .” ’ Boone v. State, 155 Ga. App. 937, 939 (1) (274 SE2d 49) (1980). See also Hornsby v. State, 139 Ga. App. 254, 256 (2) (228 SE2d 152) (1976).” Ellis v. State, 176 Ga. App. 384, 386 (3) (336 SE2d 281) (1985).

As noted, the statute does not specify or limit the type or nature of the corroborating evidence required. It need not be the hearing of the threat by another person. In Ellis, “the . . . threat against the officer was not actually overheard by anyone else, . . . .” Id. at 387. Yet the court found that the circumstances tended to prove the incident occurred.

There the circumstance particularly singled out by the court was the evidence of a similar previous threat. Here the circumstances include the use of the pillow in such a way as to be able to execute the threat, as well as the evidence of the resistance and struggle of the victim of the forced intercourse which provided a setting and gave rise to the threat. As quoted and applied in Ellis, the threat was included in “ ‘a system of mutually dependent crimes.’ [Cits.]” Harper v. State, 249 Ga. 519, 531 (8) (292 SE2d 389) (1982). That is, the other crimes tended to prove that the terroristic threat was made. See Harper. The idea is that the evidence of the other crimes tends to corroborate the testimony that a terroristic threat was made, for it provides the environment and atmosphere for such a threat. Thus it gives the protection against contrived accusations of terroristic threat which the legislature sought to guard against by requiring some corroboration other than the accuser’s mere say-so.

In Hornsby, one of the corroborating facts was that defendant possessed a pistol when he confronted the victim. Although another person testified that he heard the threat, this does not diminish the corroborative effect and value of the pistol possession.

In Burnett v. State, 236 Ga. 597, 598 (1) (225 SE2d 28) (1976), and in Morgan v. State, 229 Ga. 532, 533 (1) (192 SE2d 338) (1972), fresh complaints were regarded as corroborative evidence of rape. Here, the victim, who lived alone and was weakened by the experience, complained of the incident the next morning.

Thus we must affirm, for “[i]f there is any corroborating evidence, we will not go behind the jury and pass upon its probative value. [Cits.]” Burnett, supra.

Decided March 18, 1988

Rehearing denied April 1, 1988

Alfred D. Fears, Jr., for appellant.

E. Byron Smith, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.

I am authorized to state that Presiding Judge Banke and Judge Pope join in this opinion.


source: Caselaw Access Project

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

license: Public Domain

text:
    75144.
    PEACE v. WEISMAN.
    (368 SE2d 319)
   Banke, Presiding Judge.

The appellant and her husband (now deceased) sued the appellee physician for alleged medical malpractice. Following her husband’s death, the appellant was named executrix of his estate and was substituted for him in that capacity. She appeals the grant of the appellee’s motion for summary judgment.

In 1985, the appellant’s husband, Mr. Peace, applied for social security disability benefits. The Disability Determination Service of the Georgia Department of Human Resources (DHR) required him to undergo a consultative medical examination to determine whether a previously diagnosed heart condition would prevent him from assuming his former occupation. The appellee, a board certified specialist in the areas of cardiology and internal medicine, conducted the consultative examination at the direction of the DHR for the sole purpose of rendering a medical opinion to the DHR concerning Mr. Peace’s ability to work.

The appellee neither recommended any treatment nor rendered any advice to Mr. Peace during the course of the examination but, in response to his inquiry about the results of the examination, merely informed him that the information would be contained in a report to the DHR. Included in the subsequent report sent by the appellee to the DHR was an evaluation of a routine chest X-ray which had been taken as part of the examination. In this evaluation, the appellee noted that there was “a peculiar fullness in both hilar areas which may reflect prominent hilar lymph nodes.”

Mr. Peace was subsequently advised by the DHR that his application for disability benefits had been denied on the basis of the physical examination. He did not request, nor was he provided, a copy of the appellee’s report. Approximately four months after undergoing the consultative examination, Mr. Peace became aware of a lump in his neck, and soon thereafter he was diagnosed as having lung cancer. In April of 1986, despite months of cancer treatment, he died as a result of the disease.

The complaint alleges that the appellee committed medical malpractice by failing to diagnose Mr. Peace’s lung cancer in a timely manner, thereby allowing the malignancy to progress to its terminal stages. In granting summary judgment to the appellee, the trial court determined as a matter of law that no physician-patient relationship had ever existed between the appellee and Mr. Peace and therefore that no action based on medical malpractice could be maintained. Held:

1. It is a well-settled principle of Georgia law that there can be no liability for malpractice in the absence of physician-patient relationship. “[T]here are three essential elements imposing liability upon which recovery is bottomed: (1) The duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained.” Hawkins v. Greenberg, 166 Ga. App. 574, 575 (304 SE2d 922) (1983). See also OCGA § 51-1-27. “In such cases, called ‘classic medical malpractice actions’ . . . , doctor-patient privity is essential because it is this ‘relation . . . which is a result of a consensual transaction’ that establishes the legal duty to conform to a standard of conduct. [Cit.]” Bradley Center v. Wessner, 250 Ga. 199, 201 (296 SE2d 693) (1982), affirming 161 Ga. App. 576 (287 SE2d 716) (1982). See also Clanton v. Von Haam, 177 Ga. App. 694 (2) (340 SE2d 627) (1986); Brumbalow v. Fritz, 183 Ga. App. 231 (358 SE2d 872) (1987). The relationship is considered consensual where the “patient knowingly seeks the assistance of the physician and the physician knowingly accepts him as a patient.” Buttersworth v. Swint, 53 Ga. App. 602, 603 (186 SE 770) (1936).

While the precise issue presented by this case appears to be one of first impression in Georgia, it has been held almost uniformly in other jurisdictions that a physician who has been retained by a third party to undertake a medical examination of an individual cannot be held liable to that individual for malpractice as a result of that examination, where he neither offered nor intended to treat, care for, or otherwise benefit the individual and did not injure him during the course of the examination. See Johnston v. Sibley, 558 SW2d 135 (Tex. Civ. App. 1977) (summary judgment granted to physician who evaluated employee’s disability claim for workers’ compensation insurance carrier); Lotspeich v. Chance Vought Aircraft, 369 SW2d 705 (Tex. Civ. App. 1963) (physician conducting pre-employment physical not liable in malpractice for failing to inform examinee that X-ray disclosed tuberculosis); Keene v. Wiggins, 69 CalApp3d 308 (138 CalRptr 3) (1977) (physician’s alleged failure to advise workers’ compensation claimant of a medical condition did not give rise to a cause of action for medical malpractice). A different result is, of course, mandated where the physician did assume the role of treating the patient. See, e.g., Phillips v. Good Samaritan Hosp., 65 Ohio App. 2d 112 (416 NE2d 646) (1979); Betesh v. United States, 400 FSupp. 238 (D. D.C. 1974); Keene v. Methodist Hosp., 324 FSupp. 233 (N.D. Ind. 1971).

While Mr. Peace testified prior to his death that he believed a physician-patient relationship had existed between himself and the appellee during the consultative examination, we must agree with the trial court that the objective evidence negated the existence of such a relationship as a matter of law, leaving no basis for an inference that the appellee was acting on Mr. Peace’s behalf at any time during the examination. Accord Buttersworth, supra, 53 Ga. App. at 603. It follows that the appellant cannot recover on the basis of professional malpractice.

2. The appellant contends that, pursuant to OCGA § 51-1-27, the appellee was under an absolute statutory duty to perform his services in a skillful manner, regardless of whether a physician-patient relationship existed. That Code section provides as follows: “A person professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury, resulting from a want of such care and skill shall be a tort for which a recovery may be had.” However, the statutory duty imposed therein has never been deemed to arise independently of the physician-patient relationship. “[B]efore a plaintiff may recover on the theory that he received negligent treatment from a defendant physician, the plaintiff must show that a doctor-patient relationship existed between them” Bradley Center v. Wessner, supra, 250 Ga. at 201. Thus, OCGA § 51-1-27 does not address the situation before us, since the appellee did not undertake to perform any service for Mr. Peace. In the absence of a physician-patient relationship, the appellee’s only duty to Mr. Peace was to conduct the examination in such a manner as not to injure him. Accord Johnston v. Sibley, supra; Keene v. Wiggins, supra; Rogers v. Horvath, 65 Mich. App. 644 (237 NW2d 595) (1975).

3. Relying on Bradley Center v. Wessner, supra, the appellant contends that the appellee may be held liable for the violation of a duty owed to the public at large to avoid injuring anyone who might forseeably be affected by his acts and omissions in a professional capacity. The defendant-physician in Wessner was sought to be held liable for the death of an individual killed by a mental patient whose temporary release from confinement had been authorized by the physician. The court held that where, in the course of treatment, a physician exercises control over the freedom of a mental patient, and where it is reasonably forseeable that the patient will cause bodily harm to others if released from confinement, a person so injured may maintain a cause of action against the physician, regardless of privity. While the court cautioned that physician-patient privity continued to be essential in “classic medical malpractice actions,” it determined that the legal duty at issue in that case was not that of a doctor to a patient, but a manifestation of “the general duty one owes to all the world not to subject them to an unreasonable risk of harm.” Id. at 201.

We find the reasoning in Wessner to be inapplicable to the present case. Here, the alleged injury arose not from the criminal act of an individual under the physician’s care and control but from the physician’s failure to advise the injured person of the results of a medical examination which the physician had performed on that person. This alleged breach of duty properly falls under the heading of “classical medical malpractice,” for which privity continues to be an essential ingredient.

4. Finally, we reject the appellant’s contention that the appellee may be held liable on the theory that he breached a duty created by certain Social Security Administration “guidelines” which are contained in a publication known as the “Disability Insurance State Manual.” The alleged duty created by these guidelines was to notify an examinee’s attending physician of any previously undiagnosed condition that might require immediate treatment. Assuming arguendo that these guidelines had the force of law, our review of the provisions in question, as cited to us by both parties, reveal that they apply not to the consultative examining physician but to the Disability Determination Service itself, i.e., to the administrators responsible for reviewing the examining physician’s report. It follows that the appellant offered no valid basis for a recovery against the appellee in this case and that the trial court did not err in granting the appellee’s motion for summary judgment.

Judgment affirmed.

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

Deen, Presiding Judge,

dissenting.

I concur with Judge Benham’s dissenting position that summary judgment for the defendant doctor conflicts with this State’s “clear and unmistakable public policy favoring the preservation of life by those who are engaged in the medical profession.” Blackstone identified the three basic rights of man as life, liberty, and property, the most important of which is life. “The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation . . . Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.” 1 W. Blackstone, Commentaries *125. The Supreme Court recognized this public policy favoring the preservation of life in Jefferson v. Griffin &c. Hosp. Auth., 247 Ga. 86, 90 (274 SE2d 457) (1981) (Hill, P. J., concurring), where, after weighing the right of a mother to practice her religion and refuse surgery upon herself against her unborn child’s right to life, the court found “in favor of her child’s right to live.”

I also am of the opinion that a physician/patient relationship resulted from the consultative examination in this case. The majority opinion’s contrary conclusion may observe the letter of the law, but sucks it dry of any spirit.

In the strictest sense of the term or the “classic medical malpractice” scenario, no physician/patient relationship may have arisen out of Mr. Peace’s submission to a consultative examination, because Mr. Peace did not seek out the defendant doctor for medical diagnosis or treatment and the doctor did not literally accept Mr. Peace as a patient. However, considering the realities of the situation, such a relationship existed in the instant case. Mr. Peace was trying to prove his entitlement to Social Security disability benefits. Although the consultative medical examination may have been required and paid for by the Georgia Department of Human Resources (DHR), from Mr. Peace’s perspective he was being examined by a doctor, and his reasonable expectation was that the doctor would advise him of any physical ailments discovered by the examination. The whole purpose of the examination, after all, was to ascertain and evaluate the physical impairment of Mr. Peace. Under these circumstances, who in the world would not have expected the doctor to tell him of any abnormal findings? It strikes this writer as particularly outrageous to hold that such an examining physician has no duty to inform the examinee of his discovery of a life-threatening cancer. Certainly no great inconvenience would be visited upon a physician by requiring him to inform an examinee of such a critical finding.

Under the majority opinion, the examining physician has a duty to report his findings to DHR’s Disability Determination Service (DDS), which in turn has a duty to notify an examinee’s attending physician of any previously undiagnosed condition that might require immediate treatment. The only one left uninformed is the one most affected by the information. In this specific case then, Mr. Peace’s interest in his health and life was sufficiently respected by the examining doctor’s reporting to the DDS that the chest X-ray showed “a peculiar fullness in both hilar areas which may reflect prominent hilar lymph nodes,” the significance of which understandably eluded the DDS bureaucrats charged with making the disability determination. This system makes wonderful sense if its purpose is to guarantee that all the Mr. Peaces rest in peace at the earliest possible opportunity.

Under the facts of this case, the realities of the situation, including the expectations of the examinee and the purpose of the examination itself, favor finding a physician/patient relationship and imposition of a duty on the examining physician to divulge to the examinee any abnormal findings. To hold otherwise denies a remedy for a wrong, fosters irresponsibility on the part of such consulting physicians, and may allow unwitting bureaucrats to deprive a human being of a fighting chance to live.

Application of a strict definition of a physician/patient relationship produces the intolerable result reached by the majority opinion. Adherence to the strict definition conceivably could even sanction the nondisclosure of tumor or tuberculosis, or whatever, discovered in school children during routine health screenings conducted by a school doctor or nurse. The preferable and more enlightened approach would allow for flexibility in determining the existence of a physician/patient relationship in such situations. Accordingly, I must respectfully dissent.

Benham, Judge,

dissenting.

While I readily agree that the majority opinion correctly states the rule of law applicable in this state as to medical malpractice claims, I see a clear and unmistakable need, based on case law interpretations and public policy consideration, for a change in the direction of the development of the law in this area; therefore, I am compelled by overriding considerations of fairness, as explained herein, to dissent.

Although the main opinion contains four divisions, appellant has only one enumeration of error, divided into four subparts. Since these subparts are inextricably intertwined with the main enumeration, this dissent will not address them separately. The question posed by this case is whether a physician who merely performs a consultative examination is answerable in damages to the examinee in a medical malpractice claim.

Appellant argues that OCGA § 51-1-27 and the Social Security Administration’s Disability Insurance State Manual (DISM) 00601.215 provide an independent basis for liability by the physician. I agree with the majority opinion insofar as it says that there is no independent basis for liability under the facts of this case using the “classic medical malpractice” approach. However, we must look to statutory provisions, case law, and governmental regulations in an attempt to identify public policy considerations. In doing so, I find that while OCGA § 51-1-27 does not clearly cover the case sub judice, it does evidence a public policy favoring recovery for “[a]ny injury resulting from want of . . . care and skill.” Likewise, while DISM 00601.215 does not clearly require the consulting physician to report the results of his test to the patient, it does evidence a public policy favoring the reporting of such information.

The general rule regarding classic medical malpractice actions is outlined on page 698 of the majority opinion: “It is a well-settled principle of Georgia law that there can be no liability for malpractice in the absence of physician-patient relationship. ‘There are three essential elements imposing liability upon which recovery is bottomed: (1) the duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained. [Cits.]” This state has traditionally required that physician-patient privity must exist in order to maintain a classic malpractice action (Buttersworth v. Swint, 53 Ga. App. 602 (186 SE 770) (1936)), and the rule is generally followed by most other states, e.g., psychiatrist not liable for providing student placement report (Davis v. Tirrell, 110 Misc.2d 889 (443 NYS2d 136) (1981)); pediatrician not liable where he declined treatment but offered case management (Sullenger v. Setco Northwest, 74 Or. App. 345 (702 P2d 1139) (1985); consultative examiner not liable (Rogers v. Horvath, 65 Mich. App. 644 (237 NW2d 595) (1975); examiner of employee or job applicant not liable (Lotspeich v. Chance Vought Aircraft, Tex. Civ. App. 5th Dist. (369 SW2d 705) (1963); Riste v. Gen. Elec. Co., 47 Wash.2d 680 (289 P2d 338) (1955).

As the above-cited cases show, “[o]rdinarily recovery for malpractice or negligence against a doctor is allowed only where there is a relationship of doctor and patient as a result of a contract, express or implied, that the doctor will treat the patient with proper professional skill and the patient will pay for such treatment, and there has been a breach of professional duty to the patient. Thus, it has been held that there is not a doctor-patient relationship between: (a) a prospective or actual insured and the physician who examines him for the insurance company; or (b) a prospective or actual employee and the doctor who examines him for the employer. There is, however, a broader, a more fundamental rule of long standing under which a physician may incur a tort obligation which is nonconsensual and independent of contract. This is the general rule that one who assumes to act even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all. Restatement, Torts, Sec. 325, says the law is that one who gratuitously undertakes to render services which he should recognize as necessary to another’s bodily safety, and leads the other in reasonable reliance on the services to refrain from taking other protective steps, or to enter on a dangerous course of conduct... is subject to liability to the other for bodily harm resulting from the actor’s failure to exercise reasonable care to carry out his undertaking. [Cit.]” Hoover v. Williamson, 236 Md. 250 (203 A2d 861, 863) (1964).

In certain instances where the physician-patient relationship has been called into question in other states, doctors have been subject to liability, e.g., injuries to patient during examination (Jones v. Tri-State Tel. & Tel. Co., 118 Minn. 217 (136 NW 741)); furnishing inaccurate report that injures examinee’s employment chances (Armstrong v. Morgan, Tex. Civ. App. 6th Dist. (545 SW2d 45) (1976)); furnishing inaccurate report to insurance company (Brousseau v. Jarrett, 73 Cal. App. 3d 864 (141 Cal. Rptr. 200) (1977)); and misrepresentation of examinee’s true condition or concealment of evidence (Hoover v. Williamson, supra). In a federal case, Betesh v. United States, 400 FSupp. 238 (D.C. 1974), government physicians who examined decedent Betesh for an Army pre-induction physical were held liable for failing to disclose information to him about his abnormal X-ray until six months after the physicians became aware of it. During those six months, the tumor progressed from a highly curable state to a terminal one. In allowing the decedent’s widow and parents to recover on their medical malpractice claim, the court held that a physician who undertakes a physical examination has a duty to disclose what he has found and to warn the examinee of any finding that would indicate that the patient is in danger and should seek further medical evaluation and treatment, and that that duty is stronger when the physician has no reason to believe that the examinee is aware of the condition and the danger. Applying an analysis that apparently parallels the one used in Hoover v. Williamson, supra, the court based its conclusion on the premise that “[h]aving assumed to act, the Government physicians were under a duty to act carefully, not merely in the conduct of the examination but also in subsequent communications to the examinee . . . [since the examinee] relies on the assumption that any serious condition will be revealed. [Cits.]” Id. at 246.

As early as 1955, in Norton v. Hamilton, 92 Ga. App. 727, 731 (89 SE2d 809) (1955), this court recognized certain public policy considerations and held: “The duty of a physician or surgeon to bring skill and care to the amelioration of the condition of his patient arises not only from the implied contract between the physician and his patient [cit.], but such duty also has its foundation in public considerations which are inseparable from the nature and exercise of his calling and it is predicated by the law on the relation which exists between physician and patient which is a result of a consensual transaction, and not necessarily one of contract. [Cit.] . . . ‘Negligent failure to attend and treat a patient at a time when the need of treatment is known to the physician and there is opportunity to apply proper treatment amounts to the same as negligent treatment and the physician is answerable for such failure.’ [Cit.]” Id. at 731. (Emphasis supplied.)

In reviewing the case law of this state as it relates to public policy and medicine, I find the decision in Emory Univ. v. Porubiansky, 248 Ga. 391, 393-394 (282 SE2d 903) (1981), very illuminating and instructive. In declaring invalid a waiver of liability between a hospital and patient, our Supreme Court stated: “It is this strong interest of the state in the health and health care of its citizens which gives the state the right to regulate the health professional. [Cit.] ‘The right to practice medicine is a conditional right which is subordinate to the state’s power and duty to safeguard the public health, and it is the universal rule that in the performance of such duty and in the exercise of such power, the state may regulate and control the practice of medicine and those who engage therein, subject only to the limitation that the measures adopted must be reasonable, necessary, and appropriate to accomplish the legislature’s valid objective of protecting the health and welfare of its inhabitants.’ [Cit.]” The next year, in Bradley Center v. Wessner, 161 Ga. App. 576 (287 SE2d 716) (1982), aff'd, 250 Ga. 199 (296 SE2d 693) (1982), this court recognized that physicians are under an independent duty to control mental patients so as not to allow them to cause injury to others; and, in doing so, the court concluded that the imposition of the duty to control would not do violence to the public policy favoring readily accessible treatment for mental patients. Bradley Center is important because it allows recovery by a third party in the absence of privity between the injured party and the physician. “The legal duty in this case arises out of the general duty one owes to all the world not to subject them to an unreasonable risk of harm.” Id. at 250 Ga. 201.

It is my view that the statutes, regulations, and case law reflect a clear and unmistakable public policy favoring the preservation of life by those who are engaged in the medical profession. It is my further understanding that while most claims of medical malpractice can be handled within the confines of the law developed under the “classic malpractice” approach, there should be an exception for cases, such as the case sub judice, in which some special relationship might have been established. If such a relationship is established, I believe that a “preservation of life exception” should be applied.

Under the persuasive authority of Bradley Center, supra, the following rule of law should be applied in the case before us: (1) Where a consultative examination gives rise to a special relationship involving the administration of medical tests and procedures, an independent duty arises from that relationship requiring the examiner to take reasonable steps to inform the examinee of any findings that pose a serious and imminent threat to the preservation of life; (2) this duty must be breached by the examining physician for a cause of action to arise; (3) there must be legally sufficient evidence showing that the breach of this duty was the proximate cause of the injury; and (4) the examinee must suffer damages.

Decided March 2, 1988

Rehearing denied April 1, 1988

Albert E. Jones, for appellant.

Paul J. Quiner, James M. Head, Jr., Judson Graves, for appellee.

Gene Mac Winburn, Gregory C. Sowell, Thomas W. Bennett, amici curiae.

Since the rule announced here should only be applied in exceptional cases, I would reverse the grant of summary judgment and remand the case to the trial court for a determination not inconsistent with the rule announced herein.

I am authorized to state that Presiding Judge Deen and Judge Pope join in this dissent.


author: Pope, Judge. Deen, Presiding Judge,

text:
    75220, 75233.
    TRUST COMPANY BANK v. THORNTON et al. (two cases).
    (368 SE2d 158)
   Pope, Judge.

Plaintiffs J. Earl and Mary Jane Thornton brought this wrongful death action pursuant to OCGA § 19-7-1 (c) to recover damages for the death of their adult daughter, Margaret Anne Thornton Gruentzig, who died along with her husband, Andreas Roland Gruentzig, in an airplane crash on October 27, 1985. Plaintiffs’ deceased daughter left no surviving spouse or child. The action was brought against the manufacturer of the private airplane and the estate of the deceased husband. In their claim against the estate, plaintiffs allege their daughter died as a result of the negligence of their son-in-law Gruentzig who was the pilot of the píeme. The administrator of the Gruentzig estate (hereinafter “Gruentzig”) filed a motion for summary judgment on the ground that plaintiffs’ wrongful death claim is barred by the doctrine of interspousal immunity. Because a wife may not sue her husband for tortious injury, Gruentzig argued that the wrongful death claim brought by the wife’s parents is also barred. Gruentzig’s motion was denied and partial summary judgment was granted to plaintiffs on the estate’s defense of interspousal immunity. Gruentzig’s application for interlocutory appeal was granted (Case No. 75220). As a precautionary measure, Gruentzig also filed a direct appeal (Case No. 75233), which is hereby consolidated with the interlocutory appeal for review by the court.

The threshold issue raised by this appeal is whether the right of action granted to survivors under Georgia’s wrongful death statute is derivative from the rights the decedent had or would have had against the named defendant, so as to subject a wrongful death claim to the defense of interspousal immunity. Plaintiffs argue in support of the lower court’s ruling that their wrongful death claim is not derivative from the rights of the deceased daughter. This issue has been vigorously debated over the years by the members of this court. See Williams v. Ray, 146 Ga. App. 333 (2) (246 SE2d 387) (1978); Horton v. Brown, 117 Ga. App. 47 (159 SE2d 489) (1967); Harrell v. Gardner, 115 Ga. App. 171 (2) (154 SE2d 265) (1967). However, the issue has now been settled by the Georgia Supreme Court which expressly ruled that, barring a change in the law by the legislature, interspousal immunity applies to wrongful death cases. Jones v. Swett, 244 Ga. 715 (261 SE2d 610) (1979).

Having determined that interspousal immunity may provide a defense to a wrongful death action, the question remains whether interspousal immunity is reasonably applicable to the factual circumstances of the case at hand. The common law doctrine of interspousal immunity from claims for tortious injury has been preserved in Georgia by statute despite the repeal of the former marital unity law. Ga. L. 1983, p. 1309, § 1; Ga. L. 1984, p. 22, § 19 (OCGA § 19-3-8). The traditional policy reasons favoring the retention of the common law immunity rule include preservation of marital harmony and protection against the possibility of collusive or friendly lawsuits between spouses. See Robeson v. Intl. Indem. Co., 248 Ga. 306 (3) (282 SE2d 896) (1981). The courts have held that the policy concerns upon which interspousal immunity is founded may not be present where either an extended separation or an act of violence show there is no “marital harmony” remaining to protect. Harris v. Harris, 252 Ga. 387 (2) (313 SE2d 88) (1984); Smith v. Rowell, 176 Ga. App. 100 (335 SE2d 461) (1985).

Plaintiffs in the case now before us argue that there is likewise no marital harmony left to preserve where, as here, the marriage has ended by the death of both spouses. Defendant responds by arguing this court recently held, in Yates v. Lowe, 179 Ga. App. 888 (348 SE2d 113) (1986), that interspousal immunity still bars an action where the defendant spouse is deceased. Yates is similar to the case at hand in that in both cases the lawsuit arose out of an airplane crash allegedly caused by the negligence of the husband pilot, who was killed in the crash. In both cases the marriage between the alleged tortfeasor husband and the injured wife was terminated by death. It is true, as defendant argues, that even though there was no remaining marital harmony to protect in Yates, the court nevertheless held that the interspousal immunity doctrine barred recovery. However, the holding in Yates was based upon the second of the two policy concerns on which the immunity doctrine is founded, namely, the reasonable apprehension of collusion between the surviving wife who was the plaintiff in that case and the deceased husband’s estate. In Yates, it was “presumed that the plaintiff wife and her deceased husband’s estate would be united in the desire to provide for her any available economic support. Consequently, the justifiable fear of a collusive or friendly lawsuit [remained].” Id. at 889. The critical distinction between these two cases is that in the case now before us, the claim against the deceased husband’s estate was brought by the deceased wife’s parents who, it is undisputed, have no interest in the estate. Therefore, not only is there no longer a marital relationship to preserve, there is, in this case, no reasonable apprehension of collusion between the plaintiffs and the defendant estate. This is not to say that all wrongful death claims for the death of one spouse against the estate of the other deceased spouse are not barred by the interspousal immunity doctrine. For example, if the wrongful death claimants were the surviving children of both deceased spouses, then the claimants might have an interest in the defendant estate sufficient to raise a reasonable apprehension of collusion, as in Yates. However, those concerns are not present in the case now before us. “Under these peculiar facts we merely hold, consistent with the principles reviewed in Robeson, [supra,] that the reason for the immunity rule simply does not exist here, and that the doctrine of interspousal tort immunity does not apply to bar [the] . . . claim.” Harris v. Harris, supra at 388.

We note that earlier cases in which the marriage was terminated by death and in which the wrongful death action was brought by one from whom there would be no expectation of collusion have nevertheless ruled that the doctrine of interspousal immunity would bar the action. See Jones v. Swett, supra (in which the stepchild of defendant husband sued him for the homicide of his wife, the plaintiff’s mother); Bennett v. Bennett, 162 Ga. App. 311 (2) (290 SE2d 206) (1982) (in which the stepson of defendant wife sued her for the homicide of her husband, the plaintiff’s father). However, these cases are distinguishable because they were decided prior to the repeal of the marital unity statute, former OCGA § 19-3-8 (repealed by Ga. L. 1983, p. 1309, § 1). Therefore, at the time these earlier cases were decided, it was legally impossible for one spouse to sue the other for tortious injury because the legal existence of the two individuals was merged as one in the husband. Thus, marital unity barred the wrongful death claim. Since the repeal of that statute and its replacement with the codification of the interspousal immunity doctrine, it is no longer legally impossible for one spouse to sue the other. Instead, interspousal immunity is based on policy considerations as applied to the particular facts of the case. See Harris v. Harris, supra. Accordingly, in Smith v. Rowell, supra, where the executrix of the wife’s estate and the wife’s mother brought a wrongful death action against the husband for the murder of the wife, we held that the interspousal immunity doctrine would not necessarily bar the action so long as the facts at trial showed at the time of the wife’s death there was no marital harmony remaining to preserve and showed there was no collusive activity between plaintiffs and the defendants.

However, one recent case cannot be successfully distinguished and therefore must be overturned. In Jones v. Jones, 184 Ga. App. 709 (362 SE2d 403) (1987), the plaintiff, daughter of the deceased husband, brought a wrongful death claim against the surviving wife. As in the case now before us, the marriage was terminated by death and the wrongful death action was brought by one from whom there would be no expectation of collusion. In opposition to defendant wife’s defense of interspousal immunity, plaintiff relied upon those cases which hold the doctrine of interspousal immunity does not bar an action where it is apparent from the facts of the case that the policy reasons for the immunity rule do not exist. Harris v. Harris, supra; Smith v. Rowell, supra. This court distinguished those cases because they involved facts which showed on their face a lack of marital harmony due to either an extended separation (Harris) or violent acts between the spouses (Smith). The court found the Jones case was governed, instead, by Yates v. Lowe, supra, because both cases involved simple negligence and not a violent act showing lack of marital harmony.

However, as noted above, the true basis for barring the wrongful death action in Yates was this court’s continuing concern for the possibility of collusion between the surviving spouse who was plaintiff in that action and the estate of the deceased husband. As discussed above, the facts of the case now before us are distinguishable from those in Yates because here there exists no reasonable possibility of collusion. Likewise, upon further consideration it appears Jones was also distinguishable from Yates in a manner which was not addressed in that opinion. Obviously, the husband could not benefit by conspiring with the wife to bring a tort claim covered by liability insurance because he was dead. There would be no policy reason precluding the daughter of the deceased husband from bringing a wrongful death action against the surviving wife. Therefore, the rationale applied in Jones was in error and should not be applied in the case now before us. This is further illustrated by the recent opinion of Morris v. Brooks, 186 Ga. App. 177 (366 SE2d 777) (1988), in which the author of the Jones opinion held that when applying the analogous doctrine of parent/child immunity, the status of the family at the time the action is brought, rather than the time the injury occurred, is controlling. “The object of preserving family harmony does not control where there is no family status at the time of filing of the action.” Id. at 179. Likewise, the purpose of the interspousal immunity doctrine does not control where the marriage has ended in the death of one or both of the spouses at the time of filing the action.

It is true that a wrongful death action is considered in this state to be derivative from the rights of the deceased person. In both Jones and the case now before us the deceased spouse, if still alive, would be barred from bringing an action against the other spouse. But this begs the question. The fact is, in both cases the marriage was terminated by death and there was no longer any marital harmony to protect. We should look to the status of the marriage at the time the action was brought rather than the time the injury occurred. Cf. Morris v. Brooks, supra. The Georgia Supreme Court has held where the reasons for the immunity rule do not exist, it should not be applied. Harris v. Harris, supra. Now that the marital unity statute has been repealed, the interspousal immunity doctrine is merely the codified public policy of this state. In applying any policy, this court must look to the reason behind the rule. The case now before us is one where the policy concerns are lacking. Following the lead of the Georgia Supreme Court in looking to the specific facts of the case, we find the interspousal immunity doctrine is not a bar to this action.

Judgments affirmed.

McMurray, P. J., Banke, P. J., Benham and Beasley, JJ., concur. Deen, P. J., Carley and Sognier, JJ., dissent. Birdsong, C. J., disqualified.

Deen, Presiding Judge,

dissenting.

In 1927, the Supreme Court noted that “[w]hile the husband is still declared by statute to be the head of the family ... he, like the King of England, is largely a figurehead.” Curtis v. Ashworth, 165 Ga. 782, 787 (142 SE 111) (1927). That observation may suggest a concern over the lack of marital harmony. To whatever extent marital discord was attributable to that unequal legal status, the problem has been resolved by the egalitarian ruling of Orr v. Orr, 440 U. S. 268 (99 SC 1102, 59 LE2d 306) (1979). In one sense, that progressive development of the law demonstrates the law’s purpose of promoting marital harmony. The majority opinion in the instant case loses sight of that policy.

While acknowledging that the doctrine of interspousal immunity remains viable because it promotes marital harmony and protects against collusive lawsuits between spouses, the majority concludes that interspousal immunity does not bar the instant case, because there is no marital harmony to preserve or promote since both spouses were killed in the airplane crash. I cannot concur with that conclusion, and I respectfully dissent.

In determining the applicability of the doctrine of interspousal immunity, even though both spouses were killed in the airplane crash, it does not necessarily follow that there was no marital harmony to preserve or promote. The literal non-existence of one or both spouses at the time of the lawsuit is not dispositive of the issue of marital harmony. Jones v. Jones, 184 Ga. App. 709 (362 SE2d 403) (1987). In Smith v. Rowell, 176 Ga. App. 100 (335 SE2d 461) (1985), this court found that a jury question existed over the marital harmony between the two spouses who were both deceased at the time of the lawsuit. (The husband had mortally shot his wife, and then committed suicide.) From Smith v. Rowell, it is apparent that where one (or both) of the spouses is deceased, the correct inquiry is whether there would be any marital harmony between them to preserve, if both spouses were still alive.

In such cases, there obviously can be no change in the relationship of the spouses between the time of the tortious act and the filing of the action. As a practical matter then, the only way this determination can be made is by looking at the relationship at the time of the death(s), by considering the memories of the union. Preservation of the peace, love and unity of the basic family household concept perhaps is an inviolate public policy of this state. See the whole court case of Maddox v. Queen, 150 Ga. App. 408, 413 (257 SE2d 918) (1979), wherein this writer also noted that “ ‘[m]arriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.’ ” Observance of this public policy prevents even death from obliterating or desecrating the precious memories of a harmonious marriage.

In the instant case, there was no evidence whatsoever of any marital discord. Indeed, this is one case where the marriage vows of honoring and obeying harmoniously were consummated and adhered to, literally, until death did them part. (It would appear that all marriages are entered into initially with a rebuttable presumption of marital harmony.) Under the uncontroverted facts, a finding of continued marital harmony was demanded. The airplane crash united the Gruentzigs for posterity. The majority opinion, by judicial fiat, simultaneously seeks to split them up and wipe out this state’s policy of promoting marital harmony.

In Jones v. Jones, 184 Ga. App. 709, 710, supra, this court held that “[t]he fact that the victim spouse is dead begs the question and destroys the principle entirely; it is also immaterial.” The majority opinion observes that “[i]n both Jones and the case now before us the deceased spouse, if still alive, would be barred from bringing an action against the other spouse. But this begs the question.” The majority opinion then proposes overruling Jones, preferring instead the holding of Morris v. Brooks, 186 Ga. App. 177 (366 SE2d 777) (1988). Without further begging the questing, I note that any reliance upon Morris v. Brooks is misplaced, since that case was a two-judge decision and thus has no precedential value. Jones is sound and controlling here, and should be praised rather than buried.

Decided March 17, 1988

Rehearing denied April 1, 1988

Glover McGhee, Michael H. Schroder, Donald F. Daughterty, for appellant.

Robert P. Riordan, G. Conley Ingram, T. Cullen Gilliland, Jay D. Bennett, for appellees.


author:
McMurray, Presiding Judge.
      Sognier, Judge,

text:
    75316, 75317.
    AVERY v. KEY CAPITAL CORPORATION (two cases).
    (368 SE2d 364)
   McMurray, Presiding Judge.

In Case No. 57317 plaintiff Avery’s complaint sought damages for fraud and breach of contract from defendants Key Capital Corporation (Key) and Spreen Leasing, Inc. (Spreen). Avery’s complaint alleges that Key and Spreen jointly leased to her a 1983 Mercedes Benz having falsely represented that the automobile was a 1984 model. Case No. 75316 is a foreclosure of personal property action filed by Key against Avery, predicated on Avery’s failure to make certain rental payments on the automobile.

These appeals arise from the grant of a motion for summary judgment in favor of Key and against Avery in each case. The state court also ordered that Key be removed as a party defendant in Case No. 75317. Held:

1. Avery and Spreen were parties to the lease contract. The lease contract was embodied in a form which was provided to Spreen by Key. The lease contract authorized Spreen to assign the lease to Key.

Spreen assigned its interest in the contract to Key. Key, as the assignee of a non-negotiable chose in action, takes the same subject to the equities existing between the assignor and the debtor at the time of assignment. Mutual Investment Corp. v. Friedman, 83 Ga. App. 544, 547 (1 (b)) (64 SE2d 298); American Security Van Lines v. Amoco Oil Co., 133 Ga. App. 368, 371 (210 SE2d 832).

Key relies upon two contractual provisions to sustain the state court’s grant of summary judgment in its favor. One of these is contained within the contract by which the automobile lease was assigned by Spreen to Key. While the lease agreement explicitly anticipates assignment by Spreen to Key, the assignment contract is irrelevant. Avery was not a party to the assignment contract, nor are its terms incorporated into the lease agreement.

The remaining contractual provision at issue is the language emphasized in the following excerpt from the lease agreement: “Warranties. The Vehicle shall have the benefit of the manufacturer’s new car warranties or guarantees that apply to the Vehicle or its accessories. Dealer and [Key] make no other warranties, express or implied, regarding the Vehicle, including warranties of MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. I [Avery] understand and agree that all complaints or claims that I have regarding the Vehicle, its accessories, or its operation will be asserted by me only against the manufacturer or its authorized dealers.” (Emphasis supplied.)

Key argues that the emphasized language precludes any contract action against it by Avery. Undoubtedly a lease may permit a lessor to assign the lease and provide that the assignee take free from all defenses or claims which the lessee might have. See Short v. Gen. Elec. Credit Corp., 113 Ga. App. 476 (148 SE2d 450); and Dalton American Truck Stop v. ADBE Distrib. Co., 136 Ga. App. 606 (222 SE2d 61); Chattahoochee Holdings v. Marshall, 146 Ga. App. 658, 660 (1) (247 SE2d 167). However, in the cases sub judice such does not appear to be the intent of the language at issue. The language at issue plainly addresses warranty matters relating to the “Vehicle” identified in the lease. Avery’s complaint and claims are not “regarding the Vehicle,” but that she never received possession of the 1984 “Vehicle” identified and described in the lease.

Therefore, Key is subject to the equities existing between Spreen and Avery at the time of the assignment. Mut. Investment Corp. v. Friedman, 83 Ga. App. 544, 547 (1 (b)), supra; American Security Van Lines v. Amoco Oil Co., 133 Ga. App. 368, 371, supra. Genuine issues of material fact remain concerning the relative merits of the claims and counterclaims of Avery and Key. The state court erred in granting summary judgments in favor of Key and against Avery, and in removing Key as a party defendant in Case No. 75317.

2. Avery’s fifth enumeration of error complains that Rule 3.2 of the Uniform Rules for the State Court was misapplied. Avery moved pursuant to Rules 4.7 and 4.8 of the Uniform Rules to reschedule these cases before the proper state court judge. However, the record fails to reveal any ruling upon this motion nor does the record conclusively support Avery’s position on this matter. This enumeration of error is without merit.

Judgments reversed.

Banke, P. J., Pope, Benham and Beasley, JJ., concur. Birdsong, C. J., Deen, P. J., Carley and Sognier, JJ., concur in part and dissent in part.

Sognier, Judge,

concurring in part, dissenting in part.

I respectfully dissent to the majority’s reversal of the trial court’s grant of summary judgment in favor of Key Capital in Case No. 75317 in which Avery sought damages for fraud and breach of contract as a result of that fraud against Key Capital. The record in this case does not support a claim by Avery against Key Capital for actual fraud in that Avery failed to adduce any evidence to rebut Key Capital’s affidavit testimony that it believed the car Avery leased from Spreen to be a 1984 Mercedes Benz. Knowledge that a representation is false being an essential element in a fraud action, see Eckerd’s Columbia v. Moore, 155 Ga. App. 4, 5 (270 SE2d 249) (1980), summary judgment in favor of Key Capital was demanded as a matter of law insofar as any issue involving Key Capital’s own participation in any wrongdoing is concerned. See generally U-Haul Co. v. Dillard Paper Co., 169 Ga. App. 280, 282 (312 SE2d 618) (1983).

I disagree with the majority that Key Capital can be held affirmatively liable to Avery for damages solely on the basis of its status as Spreen’s assignee in the absence of any language in the assignment expressly making Key Capital so liable. Avery is not asserting the equities of the situation (namely, Spreen’s alleged fraudulent representations) as a defense in Case No. 75317, which thereby distinguishes the cases cited by the majority. The equities are asserted as a defense in Case No. 75316, Key Capital’s foreclosure action against Avery, and I concur completely with the majority’s holding reversing the grant of summary judgment in favor of Key Capital in that case since, in the absence of language in the lease itself limiting lessee’s claims for damages to the transferor lessor, compare Short v. Gen. Elec. Credit Corp., 113 Ga. App. 476 (148 SE2d 450) (1966); Dalton American Truck Stop v. ADBE Distrib. Co., 136 Ga. App. 606 (3) (222 SE2d 61) (1975), Avery’s claims of breach of contract and fraud are viable defenses against the foreclosure action. In Case No. 75317, however, Avery seeks to hold Key Capital affirmatively liable for the fraudulent activities of Key Capital’s assignor, thereby making Spreen’s liability that of Key Capital. “An assignee of a conditional sale contract is not personally liable to the conditional vendee for the damages sustained by such vendee because of breach of warranty or false representations by the conditional vendor. [Cits.] A counterclaim or offset against an assignee based on a claim against the assignor can only be used defensively; it cannot be used affirmatively. [Cit.]” First Acceptance Corp. v. Kennedy, 95 FSupp. 861, 872 (N.D. Iowa 1951).

A Minnesota case very much like the case at bar, discussing the rights of members of a consumer buying club who brought suit against the assignee of the membership contracts, is Meyers v. Postal Fin. Co., 287 NW2d 614 (SCt. Minn. 1979). In that case, the Supreme Court of Minnesota noted: “Generally, when contract rights are assigned, the assignee’s right to collect under the contract from the account debtor (here, plaintiffs) is subject to those defenses, set-offs, and counter-claims which the account debtor could assert against the assignor. [Cits.] . . . Thus, in the instant case, [the assignor’s] alleged fraud and deceptive practices would probably be a valid defense to any further collections under the contract by [the assignee]. However, . . . plaintiffs [account debtors] seek to hold [the assignee] affirmatively liable for the return of money paid by plaintiffs on these contracts in the past and for money damages. The law in Minnesota, as in most jurisdictions, holds that the assignment of a contract does not impose upon the assignee the duties or liabilities imposed by the contract on the assignor in the absence of the assignee’s specific assumption of such liabilities. [Cits.] Here, plaintiffs have introduced no evidence of an assumption by [the assignee] of any of [the assignor’s] obligations or liabilities to plaintiffs on these contracts. Therefore, although [the assignor] may have failed to perform on the contracts or made misrepresentations to plaintiffs, [the assignee] is not consequently liable solely because of its status as an assignee.” Id. at 617.

Decided March 18, 1988

Rehearing denied April 1, 1988

G. Kennedy McLeod, Jr., for appellant.

William K. Carmichael, John R. Hunt, Timothy W. Hewett, for appellee.

“[I]t is a cardinal rule of law that one cannot plead fraud against A because B has misled or taken advantage of him.” Johnson v. Durrence, 136 Ga. App. 439, 442 (221 SE2d 652) (1975). In the absence of any evidence that Key Capital contractually or otherwise assumed Spreen’s liabilities, I cannot agree with the majority that Key Capital is liable to Avery solely on the basis that Key Capital was the assignee of Avery’s contract with Spreen. Accordingly, I would affirm the trial court’s grant of summary judgment in favor of Key Capital in Case No. 75317.

I am authorized to state that Presiding Judge Deen and Judge Carley join in this dissent.


author: Carley, Judge. Benham, Judge,

text:
    75351.
    GREEN v. TANNER et al.
    (368 SE2d 162)
   Carley, Judge.

Following the termination of his employment with Coastal Land Clearing Company (Coastal), appellant, contending that he had been fired, filed a claim for unemployment compensation. Although appellant was initially awarded unemployment compensation, Coastal appealed the award, claiming that appellant had quit. A hearing was held and the administrative hearing officer denied benefits after finding that appellant had quit without good cause. After the hearing officer’s decision was affirmed by both the Board of Review of the Department of Labor and the Superior Court of Chatham County, we granted appellant’s application for a discretionary appeal pursuant to OCGA § 5-6-35 (a) (1).

1. The superior court’s affirmance of the administrative determination that appellant had voluntarily quit his employment without good cause is enumerated as error. The contention is that the administrative determination has no evidentiary support. “In any judicial proceeding [reviewing final decisions of the Board of Review], the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” OCGA § 34-8-176 (b). Neither the superior court nor this court is authorized to reanalyze and weigh the evidence and, based upon that reanalysis and reevaluation, to substitute new factual findings for those of the administrative trior of fact. Our review of the record in its entirety clearly reveals that the administrative determination that appellant voluntarily quit his employment without good cause was supported by probative evidence and that, therefore, the superior court correctly affirmed. Under the proper standard of review for findings of fact, which standard is the “any evidence rule,” we must do likewise and affirm the superior court. See Phillips v. Caldwell, 144 Ga. App. 376 (241 SE2d 278) (1977); Barnes v. Caldwell, 139 Ga. App. 384 (228 SE2d 325) (1976).

2. Appellant urges that an improper standard of proof was used in determining his eligibility for unemployment compensation. “We do not reach appellant’s further assertion that the improper standard of proof was employed in reaching the conclusion that he was disqualified from unemployment benefits. From the record, it appears that this assertion was not raised at the appropriate times. [Cit.]” Moore v. Tanner, 172 Ga. App. 792, 793 (2) (324 SE2d 772) (1984). Accordingly, this enumeration is without merit.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., Sognier, Pope and Beasley, JJ., concur. McMurray, P. J., Banke, P. J., and Ben-ham, J., dissent.

Benham, Judge,

dissenting.

I concur with the majority in Division 2, in which it declines to reach appellant’s assertion that the improper standard of proof was used to reach the conclusion that he was disqualified from receiving unemployment benefits. However, I dissent from the conclusion in Division 1 that the administrative determination that appellant voluntarily quit his employment without good cause was supported by probative evidence. While I agree that there is evidence to support the finding that appellant quit his employment, I do not agree that there is any evidence to support the finding that appellant did so with good cause. The burden is on the employer urging the disqualification to show by a preponderance of the evidence that the applicant for compensation comes within an exception such that the applicant is not entitled to benefits. Millen v. Caldwell, 253 Ga. 112, 113 (317 SE2d 818) (1984); Dalton Brick &c. Co. v. Huiet, 102 Ga. App. 221 (2) (115 SE2d 748) (1960). Therefore, Coastal was required to show that appellant did not have good cause to quit rather than appellant being required to show that he did. My review of the record shows that appellant was initially hired as a truck driver but, due to injuries suffered by other workers, he was required to drive the truck and a bulldozer, load and unload the vehicles, and operate a chainsaw. According to the employer, appellant was essentially doing everybody else’s job while they were gone. The employer had promised appellant that he would be paid an additional $30 per week for operating the bulldozer, and appellant testified that although he had been operating the bulldozer for two months while the usual operator was out, he was only paid the additional money for one week. The employer did not refute the fact that appellant had been operating the bulldozer for two months, but did confirm that he had only been paid $30 extra, and that he did not intend to pay him any more “for driving a truck.” Furthermore, he admitted having had a conversation with appellant during which appellant seemed unhappy, and he knew that there had been pay disputes between appellant and the foreman concerning the additional money. In the last such discussion, the foreman allegedly had relayed the employer’s position regarding appellant’s pay, and, according to appellant, had cursed appellant in front of others. The foreman did not appear to testify at the hearing.

The administrative hearing officer held that appellant voluntarily quit his employment “without good cause in connection with the work as is usually construed in Georgia Unemployment Insurance matters.” The only reason given for this determination is that the claimant failed to request “a conference with the employer to explain his position and to ask for remedial action.” Under the circumstances I do not find this to be a sufficient basis for the decision reached, since the employer knew of appellant’s concerns and had made his position clear on that issue, thus leaving appellant with the choice of either continuing to work without receiving the compensation as promised, or not continuing to work. It is my opinion that a reasonable person would not continue to work knowing that he was not going to be paid the payment initially promised. Since there was evidence that appellant had good cause to quit his employment and the employer failed to refute that evidence or otherwise meet its burden of proof, I believe the superior court erred in affirming the denial of unemployment compensation. I would reverse the superior court’s judgment.

Decided March 17, 1988

Rehearing denied April 1, 1988

Murphy A. Cooper III, for appellant.

Michael J. Bowers, Attorney General, Wayne P. Yancey, Senior Assistant Attorney General, Annette M. Cowart, Staff Assistant Attorney General, for appellees.

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


author:
Beasley, Judge.
      Deen, Presiding Judge, Sognier, Judge,

text:
    75605.
    DAWSON v. THE STATE.
    (368 SE2d 367)
   Beasley, Judge.

Defendant appeals from convictions of conspiracy to commit armed robbery, OCGA § 16-4-8, and attempted armed robbery, OCGA §§ 16-8-41; 16-4-1.

1. Defendant asserts error in the refusal to strike the testimony of Smith, a State witness whose name was not included on the furnished witness list. Smith was a co-indictee, charged with the same offenses of which defendant was convicted. Defendant did not object when Smith testified nor move to strike the testimony until after the charge conference. The only basis stated was that he was not on the original or amended list of state witnesses and defendant had no notice that Smith would be called as a witness until he took the stand. There was no contention that defendant was unfairly surprised, that he was unaware of the co-indictee’s existence, or that he had no opportunity to interview the witness.

Under such circumstances it has been held that “where, as here, the name of a witness is contained in the indictment, a defendant cannot validly contend that he has been surprised or unable to interview the witness because he was unaware of such witness.” Redmond v. State, 252 Ga. 142, 143 (2) (312 SE2d 315) (1984). Further, the proper remedy when a witness is called whose name was not on the list is a motion for continuance, not the exclusion of the witness’ testimony. Wright v. State, 167 Ga. App. 445 (1) (306 SE2d 428) (1983). Hence, it was not error to deny defendant’s motion to strike Smith’s testimony.

2. Defendant contends the trial court erred by refusing to give his request to charge number 4 on the issue of withdrawal from a conspiracy, which read: “I charge you that a person would not be criminally responsible if his mind were so impaired by alcohol that he could not form intent to commit an act or understand the consequences of such act.” Clearly this is not a charge on withdrawal from a conspiracy, but rather a charge on intoxication to a degree which renders a person incapable of forming a requisite intent to commit a criminal act. Hence, there is nothing for us to review in that regard.

Moreover, refusal to give this charge has been held to be not error. Williams v. State, 180 Ga. App. 854, 855 (2) (350 SE2d 837) (1986); Faircloth v. State, 175 Ga. App. 130 (1) (332 SE2d 686) (1985).

3. Defendant finds fault with the court’s refusal to allow him to impeach Penny Milsap by showing bias. Milsap testified on direct examination as a State witness that she was the common-law wife of Tommy Hampton, a co-indictee, and had been living with him for six years. On cross-examination she was questioned extensively about her relationship with Hampton, including the fact that she had been with Hampton several times when he sold stolen jewelry to Hugh Dell West (apparently a jewelry store). Milsap was also allowed to testify that Hampton had done favors for her in Bartow County.

Defendant argues that the court prevented him from asking Mil-sap about the fact that Hampton exculpated Milsap from a 1985 burglary charge in Bartow County resulting in a nolle prosequi being entered as to her. The court merely prohibited counsel from cross-examining her regarding the specifics of this “favor,” because a witness may not be impeached by proving non-conviction charges. Smallwood v. State, 95 Ga. App. 766 (98 SE2d 602) (1957); State v. Byrd, 255 Ga. 665, 666 (341 SE2d 455) (1986). This did not constitute reversible error, as defendant was permitted wide latitude to establish the alleged bias and the court did not abuse its discretion. Kitchens v. State, 256 Ga. 1, 6 (4) (342 SE2d 320) (1986); Williams v. State, 250 Ga. 664, 665 (1) (300 SE2d 685) (1983).

4. Defendant asserts error in the court’s refusal to admit evidence of a co-conspirator’s statements made during furtherance of the criminal undertaking. Defendant attempted to question two defense witnesses about a statement made to them by Hampton the afternoon of the day following the attempted robbery, to the effect that defendant did not participate in the robbery which was the object of the conspiracy. The trial court excluded the testimony on the grounds that the conspiracy had ended before the time of the statement, and that Hampton was no longer trying to conceal the conspiracy. Defendant argues that a co-conspirator’s statements made during an attempt to conceal a previously committed substantive crime are admissible as being in furtherance of the conspiracy. While this is the rule in Georgia if the conspiracy contemplates action such as concealment beyond an initial criminal act, Knight v. State, 239 Ga. 594, 597 (2) (238 SE2d 390) (1977), it is not applicable under the facts in the instant case.

The morning after the attempted armed robbery defendant went to the Cedartown police and told them his version of the attempted robbery and shooting at the victim’s home, including Hampton’s participation in the scheme. A conspiracy terminates when a conspirator identifies other conspirators and relates their participation in a crime to law enforcement officials. Crowder v. State, 237 Ga. 141, 153 (227 SE2d 230) (1976); Wright v. State, 254 Ga. 484, 487 (1) (330 SE2d 358) (1985). As the court ruled, the conspiracy had ended.

Further, both witnesses testified, at the hearing on this issue that, at the time Hampton made the statements he was not attempting to conceal anything. Thus the trial court did not err by excluding hearsay evidence as to what Hampton said to them, outside the presence of defendant, after the conspiracy had terminated and there was no attempt to conceal the conspiracy.

5. Defendant alleges error in the court’s questions to defense counsel and defense witnesses as being prosecutorial in tenor, large in number, and argumentative. There is nothing in the questions or comments complained of to support defendant’s complaint. Further, defendant made no objection to any of the questions, either on the basis now urged or any other, and this court will not consider questions raised for the first time on appeal. Tolbert v. State, 180 Ga. App. 703, 704 (3) (350 SE2d 51) (1986).

6. Defendant contends he lacked reasonably effective assistance of trial counsel, thereby denying him his right to a fair trial and due process of law, in violation of the United States and Georgia Constitutions. The first question is whether the issue was ruled on below, so as to clothe it with reviewability.

When the original motion for new trial was filed, the court issued a show cause order setting a date for hearing and stating that “[i]n the meantime and until the final hearing of said motion, whenever the same may be had, defendant is allowed to amend and perfect the motion.” Thereafter, the amended motion for new trial, which raised the ineffective assistance of counsel ground as well as five others, was filed February 23. An extensive brief in support of it was also filed at the same time. It pointed out specific alleged counsel errors, with references to the trial transcript in each instance, and it cited and argued the law applicable. His brief on appeal is almost verbatim.

The motion and brief were served on the district attorney, and the court held a motion hearing on May 28. The resulting order, filed July 16, stated that arguments were received from both parties and it ordered that the “Motion for New Trial” be denied.

On appeal, defendant seeks to show that the trial court was wrong and should have granted a new trial. There is no contention that the court failed or refused to hear or consider the grounds contained in the amendment. The mere fact that the court in its order did not expressly include the word “amended” does not mean that it did not do its duty to provide a hearing and rule on the amendment, too. This is particularly true where there is no complaint in this regard. We are bound to presume that, in the absence of evidence to the contrary, the trial court fulfilled its obligation under the law. OCGA § 24-4-24 (b) (1); Nalley v. State, 147 Ga. App. 634, 635 (249 SE2d 685) (1978). See also Hosch v. Pickett, 172 Ga. App. 13, 15 (321 SE2d 777) (1984).

Even if trial counsel did not testify at 'that hearing, which the record does not show one way or the other, it is not always necessary that trial counsel testify in cases where ineffective assistance is alleged. It would depend on what is claimed to have constituted ineffectiveness. If it relates to matters outside of the record, such as that counsel failed to consult with defendant before trial or failed to call material witnesses, then counsel’s testimony would probably be needed. But where the “ineffectiveness” relates to alleged errors made during the course of the trial as shown by the transcript, then trial counsel’s testimony may not be required; the record speaks for itself.

The ineffectiveness asserted here is of the latter type. If trial counsel was not called as a witness at the hearing, that was defendant’s choice. The point is, defendant had a hearing and the opportunity to present his evidence (the trial transcript) and argument on the ineffectiveness claim; he does not even contend otherwise.

Smith v. State, 255 Ga. 654, 656 (3) (341 SE2d 5) (1986) does not require the testimony of trial counsel. What it requires is a hearing. See also Thompson v. State, 257 Ga. 386, 388 (2) (359 SE2d 664) (1987). Defendant had one. The issue was ruled on. Defendant does not seek another hearing on it. We do not require one.

We proceed to the merits. Upon a review of those instances of trial action taken or not taken by counsel which defendant complains of, we do not find that defendant has met the burden imposed by Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984) and applied in Smith v. Francis, 253 Ga. 782 (1) (325 SE2d 362) (1985). See also Ray v. State, 183 Ga. App. 57 (357 SE2d 877) (1987).

Judgment affirmed.

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

Deen, Presiding Judge,

concurring specially.

I concur fully with the majority opinion, except for its conclusion in Division 2 that the appellant has left this court nothing to review by virtue of his confusing the law on voluntary intoxication with the law on withdrawal from conspiracy.

Dawson requested that the trial court give the following charge on the issue of withdrawal from conspiracy: “I charge you that a person would not be criminally responsible if his mind were so impaired by alcohol that he could not form intent to commit an act or understand the consequences of such act.” Heretofore, this charge has always addressed voluntary intoxication, and it is unusual to see it applied to withdrawal from conspiracy. “Good old rye whiskey,” sometimes resulting in a bacchanalian revel or wild merriment, may very well be a tonic for various complaints, Mason v. State, 1 Ga. App. 534, 536 (58 SE 139) (1907), but it has never served as a cure for conspiracy.

In any event, it matters little whether the charge deals with voluntary intoxication or withdrawal from conspiracy. While it may not be error to give the requested charge in some instances, see Pope v. State, 256 Ga. 195 (16) (345 SE2d 831) (1986), on numerous occasions this court has held that it is not error to omit it. Williams v. State, 180 Ga. App. 854 (2) (350 SE2d 837) (1986); Faircloth v. State, 175 Ga. App. 130 (332 SE2d 686) (1985).

Sognier, Judge,

dissenting.

I respectfully dissent. Since our Supreme Court decided the case of Smith v. State, 255 Ga. 654, 656 (3) (341 SE2d 5) (1986), it has consistently followed the procedure of remanding a case for a hearing by the trial court on the issue of ineffective assistance of counsel, when appellate counsel is different than the trial defense counsel, and such a claim has been raised by appellate counsel, even when such appellate counsel did not raise the issue in a motion or amended motion for new trial. Hambrick v. State, 256 Ga. 148, 151 (5) (344 SE2d 639) (1986); Gilstrap v. State, 256 Ga. 20, 23 (7) (342 SE2d 667) (1986); Lloyd v. State, 257 Ga. 108 (3) (355 SE2d 423) (1987); Wadley v. State, 257 Ga. 280, 281 (4) (357 SE2d 588) (1987); Thompson v. State, 257 Ga. 386, 388 (2) (359 SE2d 664) (1987). This court has also followed the procedure set forth in Smith, supra. Midura v. State, 183 Ga. App. 523, 524 (3) (359 SE2d 416) (1987). Although Thompson, supra, held that after the date of publication of the opinion the issue is waived if not raised by the new attorney in an amended motion for new trial, that holding is not applicable here.

This court is bound by decisions of the Supreme Court of Georgia, Const, of the State of Ga., 1983, Art. VI, Sec. VI, Par. VI. Although Smith, supra, might not specifically require that the case be remanded when a claim of ineffective counsel is made at the trial level and no evidentiary hearing is held on that issue, it is clear from the number of cases following that procedure in accordance with Smith that it is the procedure adopted by the Supreme Court to be followed in such cases. Therefore, I feel bound to remand the case for a hearing on the issue of ineffective assistance of counsel, so that trial defense counsel can be heard on the issue. By not doing so, we are leaving this case open to a possible miscarriage of justice by reversal of the case in a habeas corpus proceeding in federal court based on a denial of procedural due process.

Decided March 18, 1988

Rehearing denied April 1, 1988

Wayne W. Gammon, for appellant.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

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