text:
    74919.
    McNISH v. GILBERT et al.
    (361 SE2d 231)
   Beasley, Judge.

McNish was injured in the course of riding the Gilberts’ horse. She sued, alleging negligence in certain particulars, and the court granted summary judgment to defendants, prompting McNish’s appeal. The depositions of all of the parties were considered.

On a motion for summary judgment, the evidence must be construed favorably to the party opposing the motion, affording that party the benefit of all reasonable doubts and reasonable inferences. Fowler v. Ford Motor Credit Co., 180 Ga. App. 738, 739 (350 SE2d 319) (1986). The question is whether, under the theory and evidence thus far presented, a jury would be precluded as a matter of law from finding for plaintiff. Put another way, upon the facts alleged and the evidence presented, is an element of the tort of negligence conclusively established against the plaintiff so that a reasonable factfinder could not decide that element in favor of plaintiff? The traditional elements were recently outlined in Sutter v. Hutchings, 254 Ga. 194, 196 (1) (327 SE2d 716) (1985), and are implicit in OCGA § 51-1-6.

Plaintiff alleged four failures, or omissions to act, on the part of defendants: “failure to warn of the horse’s dangerous propensity to buck; failure to handle the horse in a safe manner which would avoid injury to others; failure to calm the horse or take other preventive measures which would have prevented the horse from bucking and kicking plaintiff; by failing to take any reasonable action, when the defendant (sic) knew or in the exercise of due care, should have known that their conduct would cause these injuries to plaintiff.” The court granted the motion generally, without explication. On appeal, McNish frames the allegations as failure to warn and failure to control.

Viewed most favorably towards plaintiff, the evidence shows that McNish, an experienced horsewoman, and her sister-in-law and brother-in-law went to see the Gilberts about purchasing a two-year-old horse the latter had for sale. McNish wanted to ride the horse, which was out in a pasture, prior to making her final decision about the purchase. A bridle was fetched, and Mrs. Gilbert rode the horse to McNish bareback, with Mr. Gilbert leading it. Before mounting, McNish asked whether the horse bucked. Mrs. Gilbert said she had ridden the horse, children had been on it, and she had never seen it buck. McNish also asked whether the horse was “broke.” Mrs. Gilbert says, and McNish admits that she may have told her but does not remember, that it was “green broke,” i.e., not fully broken.

While Mr. Gilbert held the reins, McNish mounted and rode about ten feet. The horse began to act “skittish,” kicking its feet and “slinging its head.” McNish became apprehensive and jumped off. She expressed doubt as to whether to remount, but at her brother-in-law’s suggestion, she did so and continued riding, with him holding the reins and leading the horse. After about forty feet it began to move its feet sideways. McNish, fearing the horse was about to buck, jumped off again. Before she reached the ground, the horse kicked her, fracturing her leg.

Here we have a prospective buyer and a seller of a young horse. The buyer bases the seller’s breach of legal duties on the seller’s knowledge of the horse’s propensity to buck. “[T]o support an action for damages for injuries sustained by being bitten or kicked by a horse, it is necessary to show that the horse was vicious and that the owner had knowledge of that fact.” Rodriguez v. Newby, 131 Ga. App. 651, 653 (206 SE2d 585) (1974). Such a showing is not made when the record “does not reveal any facts which would indicate any prior vicious conduct by the horse, or the defendant owner’s knowledge thereof.” Id.

The record contains no evidence that the Gilberts knew of the horse’s propensity for the type of behavior of which McNish complains, and they deny it. McNish conceded that she assumed it did not buck, based on what they said.

She had also to take into account what she observed and what she previously knew, based on her own experience with young horses and riding bareback as a stranger to this horse. Most importantly, her knowledge of the horse’s attitude towards her was fortified by the experience of having to jump off once before, a few minutes earlier, triggered by similar conduct. To say that this time it bucked and the first time it only acted skittish, and that the Gilberts but not she knew of this bucking propensity, cuts too thin the line between what is known or knowable and what information must be conveyed. The point is, she knew firsthand that she might have to jump off again because of the horse’s behavior when she was on it.

Likewise with the factual dispute about whether the Gilberts told her the horse was “broke” or only “green broke.” Whether one or the other, its significance fades from materiality because of the first occasion of the horse’s behavior, which put her on notice that the horse was not fully broken.

Considering the undisputed facts of this case, no legal duty could be cast upon the sellers to forewarn the prospective buyer that the horse might again act up in such a way as to injure her. The horse itself had already given her notice of its disinclination to let her ride, by its own behavior. “A person cannot undertake to do what obviously is a dangerous thing, even if he is directed by another, without assuming the risks incident thereto and without himself being guilty of such lack of due care for his own safety as to bar him from recovery. See Fricks v. Knox Corp., 84 Ga. App. 5, 10 (65 SE2d 423).” Forde v. C & S Ga. Corp., 178 Ga. App. 400, 402 (343 SE2d 164) (1986).

The knowledge among the parties here was nearly, if not precisely, equal, and a warning from defendants would have to be met with the response “I know.” The undisputed facts gave no rise to a duty to warn, because defendants had no knowledge that the horse would “buck” and because plaintiff had equal knowledge that it would manifest an intolerance to her riding, and thus there is no tortious failure to warn as plaintiff alleges.

Appellant also argues that defendants failed to control the horse. This relates to several of the alleged failures enumerated in the complaint. It is undisputed that after she jumped off the first time, when Mr. Gilbert was leading the horse, she chose to ride again. Her brother-in-law suggested she do so, helped her mount, and was leading the horse when she jumped off and was kicked. Thus the facts belie any allegations that defendants failed to control the horse so as to avoid injury to her.

As a matter of law, then, defendants’ conduct did not unreasonably create a foreseeable risk to a protected interest of the kind of harm that befell plaintiff, for which they could be held liable.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.

Decided September 15, 1987.

Christopher A. Townley, for appellant.

Christopher H. Steger, H. Richard Marcus, for appellees.

       See Fazzolari v. Portland School Dist. No. IJ, 303 Or. 1 (734 P2d 1326) (1987), and the two cases following, for a scholarly analysis of the development of negligence law, especially the relation of foreseeability and duty.


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    74385.
    HAMM v. LEDESMA et al.
    (361 SE2d 205)
   Benham, Judge.

James Norris, Jr., was killed in an automobile collision on October 15,1983, while riding in an uninsured vehicle. Appellant, guardian of the deceased’s daughter, brought suit against the various parties involved in the collision and had appellee Cotton States Mutual Insurance Company served as an uninsured motorist carrier. That service was made on the basis of four insurance policies issued by Cotton States to James Norris, Sr., father of the deceased. At the time of his death, Norris, Jr., was 27 years old and was living in his father’s home, but was not a named insured on any of the policies. No claim was filed under those policies until September 1985. Conceding the question of coverage for the purpose of its motion, Cotton States sought summary judgment on the ground that it had not been given notice of the loss within 60 days as required by the policies and that the claim was not made “as soon as practicable,” another requirement of the policies. The trial court found that the evidence showed that within 60 days after the loss, Norris, Sr., had been in the office of the agency from which he had procured the policies and had conversed with an employee of that agency concerning his son’s death. The trial court also found, however, that the conversation did not constitute notice as required by the policies. The decisive issue in reviewing the grant of summary judgment to Cotton States is whether a question of fact remains concerning the adequacy of the notice Norris, Sr., claims he gave to Cotton States within 60 days of the loss.

A partner in Steele-Jones Insurance Agency, which sold Cotton States’ policies to Norris, Sr., testified by affidavit that he had no notice and no knowledge of the accident or of any claim until September 1985. On deposition, however, the same witness testified that he did not know whether any of his employees knew of the accident prior to that date. Norris, Sr., testified by affidavit that “a discussion was initiated by an employee of Steele-Jones Insurance Agency regarding the death of my son which I confirmed.” On deposition, Norris, Sr., testified that “we just talked about the accident and she was expressing sympathy about it, and that was the extent of it.”

Appellant relies on Kitt v. Shield Ins. Co., 240 Ga. 619 (241 SE2d 824) (1978), for the proposition that the issue of the adequacy of notice is for a jury to decide. See also Protective Ins. Co. v. Johnson, 256 Ga. 713 (2) (352 SE2d 760) (1987). The trial court here recognized the holding in Kitt but attempted to distinguish it from the present case by noting that the conversation on which the insured relied in Kitt included the cause of death and the name of the other party involved in the accident, whereas there is no indication that those factors were mentioned in the conversation between Norris, Sr., and an employee of the insurance agency; and by observing that Norris, Jr., was an adult at the time of his death, not to be expected to be living at home, whereas the deceased in Kitt was a minor child. However, we note that Norris, Sr., stated in his deposition that he and the employee had discussed the “accident,” raising the inference that the employee knew or became aware during that conversation of the cause of death. Furthermore, there is nothing in the record to show that the employee of the insurance agency knew how old Norris, Jr., was at the time of his death; the record only shows they discussed his death. The trial court also found Kitt distinguishable on the basis of the quantity of detail given by the insured: there, the record showed that the insured gave the insurer the name of the alleged tortfeasor and related the fact that he was uninsured; here, the record does not establish fully the amount of detail related. However, in light of the indulgence to be given a party opposing a motion for summary judgment, and considering the purpose for notice to insurers by insureds, we do not find that distinction to be sufficient to authorize the grant of summary judgment in this case.

“ ‘The purpose of notice is to enable the insurer to inform itself promptly concerning the accident, so that it may investigate the circumstances, ... or be advised whether it is prudent to settle any claim arising therefrom.’ [Cit.]” Kitt, supra at 621. The question to be decided here, then, is whether the insurer was given sufficient information so that it could make the appropriate decisions with regard to investigating the loss. Considering that question in the context of the requirement that evidence on a motion for summary judgment must be construed most strongly against the movant and that the party opposing the motion is entitled to all inferences which may fairly and reasonably be drawn in support of his case (Vizzini v. Blonder, 165 Ga. App. 840 (303 SE2d 38) (1983)), and the rule that a court considering a motion for summary judgment will treat the respondent’s paper with considerable indulgence (Mallard v. Jenkins, 179 Ga. App. 582 (347 SE2d 339) (1986)), we hold that the issue of whether appellee was given sufficient notice of the loss is for resolution by a jury. Since that is the only issue addressed by the trial court, the judgment against appellant must be reversed.

Judgment reversed.

Banke, P. J., concurs. Carley, J., concurs in the judgment only.

Decided September 10, 1987

Rehearing denied September 16, 1987

Horace J. Johnson, Jr., for appellant.

I. J. Parkerson, Roger Mills, for appellees.


author: Deen, Presiding Judge.

text:
    74954.
    WILLIAMS v. GREENFIELD EQUIPMENT COMPANY, INC.
    (361 SE2d 199)
    Decided September 8, 1987
    Rehearing denied September 16, 1987

      Peter J. Rice, Jr., Andrew H. Marshall, for appellant.

      E. Davison Burch, for appellee.
   Deen, Presiding Judge.

The sole issue in this appeal is whether the trial court violated OCGA § 9-10-182 by allowing two attorneys to argue for the defendant during closing argument. Both the plaintiff and the defendant employed double counsel. One attorney for the plaintiff began closing argument; the two defense attorneys then argued; and the plaintiff’s second attorney concluded the argument. Under Taylor v. Powell, 158 Ga. App. 339 (280 SE2d 386) (1981), this procedure did not violate OCGA § 9-10-182.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.


text:
    74990.
    74991.
    GORIN v. FPA 2, P.C. ELLIS v. GORIN et al.
    (361 SE2d 193)
   Deen, Presiding Judge.

Robert Gorin, in his capacity as executor of the estate of Arlene Gorin, filed a lawsuit against John W. Ellis, the sole shareholder of Dunwoody Family Practice Associates, P.C., and FPA 2, P.C., for fraudulent conveyance of assets owned or controlled by Dunwoody and FPA. On February 10, 1982, Arlene Gorin filed a civil action against Dunwoody to recover amounts owed under contract for decorator service provided to the defendant from the plaintiff. In November of 1983, Ellis, on behalf of Dunwoody, entered into a letter agreement with FPA 2 for the sale of all assets owned and controlled by Dunwoody. One of the provisions of this agreement provided for the assumption by FPA of certain debts and a payment of $35,000 in cash. There was evidence that Dr. Ellis either was or should have been aware of Mrs. Gorin’s lawsuit, but he took no action. A default judgment in the sum of $11,477.07 was entered against Dunwoody on February 13, 1984. The judgment proved to be uncollectible and Arlene Gorin died on March 24, 1984.

Approximately one year later, Robert Gorin, as executor of his wife’s estate, instituted an action against Ellis, individually, and against FPA, alleging that Ellis, by transferring all of Dunwoody’s assets to FPA, had fraudulently defeated the claims of the Dunwoody’s creditors generally and the claim of Arlene Gorin in particular and that FPA accepted the transfer of Dunwoody’s assets with the actual or constructive knowledge of her claim and Ellis’ intention to defeat it. The jury returned a verdict in favor of appellant in the amount of $15,000 plus $11,500 in attorney fees, and a judgment in that amount was entered by the trial court. FPA and Ellis filed a motion for j.n.o.v., and in the alternative, for a new trial. The trial court granted FPA’s motion and denied Ellis’ motion. Appellant contends that the court below erred in granting FPA’s motion in that the evidence presented at trial supported the jury verdict. Dr. Ellis appeals from the denial of his motion and alleges that certain errors occurred during the trial. Held:

Case No. 74990

“The jury is the final arbiter of the facts and the verdict must be construed by the trial and appellate courts in the light most favorable to upholding the jury verdict.” Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 159 (256 SE2d 916, 921) (1979). Having reviewed all the conflicting and disputed evidence, this court cannot say there is no competent evidence to support the jury verdict of $15,000 plus attorney fees of $11,500. The jury could have reasonably concluded that Dunwoody was insolvent at the time of its conveyance and that Ellis may have attempted to defeat the claim by channeling all assets from the judgment debtor to FPA and himself and his wife. The evidence supported the finding that Dr. Prater and FPA 2, P.C., had knowledge of the Gorin claim and suit and of Ellis’ intention to defeat it. Bryant v. Colvin, 160 Ga. App. 442 (287 SE2d 238) (1981). The trial court erred in granting FPA 2’s motion for judgment notwithstanding the verdict. We cannot say that the alternative grant of a new trial was error; therefore, this part of the judgment is affirmed.

Case No. 74991

Since the evidence was in conflict, the trial court did not err in overruling the Ellis motion for j.n.o.v. and, in the alternative, for a new trial.

Decided September 8, 1987

Rehearing denied September 16, 1987

Michael Weinstock, Richard L. Levine, for appellant (case no. 74990).

Paul R. Jordan, Brett L. Block, for appellee.

William R. Hurst, for appellant (case no. 74991).

Michael Weinstock, Richard L. Levine, for appellees.

The trial court’s admonishing counsel not to get into the merits of the already-litigated claim was monitoring the evidence relevant to the issues in the instant action and does not amount to reversible error. Norton v. Norton, 213 Ga. 384 (99 SE2d 139) (1957).

Questions of bad faith, stubborn litigiousness, and expense, OCGA § 13-6-11, are generally questions for the jury. This court cannot say there is no evidence to support the jury’s award. Ken-Mar Constr. Co. v. Bowen, 245 Ga. 676 (266 SE2d 796) (1980). Neither can we say, as a matter of law, that there was a reasonable defense. Fuller v. Moister, 248 Ga. 287 (282 SE2d 889, 890) (1981).

As to Case No. 74990, the trial court erred in granting j.n.o.v. but did not err in granting a new trial in the alternative. In Case No. 74991, the trial court did not err in overruling Ellis’s motion for j.n.o.v. and, in the alternative, for a new trial.

Judgment in Case No. 74990 affirmed in part and reversed in part. Judgment in Case No. 74991 affirmed.

Birdsong, C. J., and Pope, J., concur.


author: Birdsong, Chief Judge.

text:
    72264.
    GEORGIA PUBLIC SERVICE COMMISSION et al. v. CENTRAL OF GEORGIA RAILROAD COMPANY.
    (361 SE2d 723)
   Birdsong, Chief Judge.

The Supreme Court of Georgia has reversed our decision in this case which appears at 179 Ga. App. 415 (346 SE2d 568), wherein we held that under the plain terms of OCGA § 46-8-121 (and former Code § 94-321), the Georgia Public Service Commission has original approval power of the Railroad’s condemnation of the subject property, and that this approval power is not limited merely to a question of whether the condemnation is for public use. Central of Ga. R. Co. v. Ga. Public Svc. Commission, 257 Ga. 217 (356 SE2d 865).

Accordingly, since under the Supreme Court’s decision, the PSC used the wrong standard in considering whether to approve this taking, the case is remanded for reconsideration on the merits in a manner not inconsistent with the opinion of the Supreme Court.

Decided September 16, 1987.

Michael J. Bowers, Attorney General, H. Perry Michael, First Assistant Attorney General, Jim 0. Llewellyn, Senior Assistant Attorney General, H. Jeff Lanier, Assistant Attorney General, for appellants.

Earle B. May, Jr., Benjamin M. Garland, for appellee.

Judgment reversed and case remanded.

Banke, P. J., and Sognier, J., concur.


author: Banke, Presiding Judge.

text:
    73392.
    FLINT v. GUST et al.
    (361 SE2d 722)
    Decided September 16, 1987.
   Banke, Presiding Judge.

The Supreme Court has reversed on certiorari our prior decision in this case, wherein we held, in reliance on Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58 (195 SE2d 399) (1973), that the trial court was empowered to exercise jurisdiction over the plaintiff’s fraud claim against the nonresident defendants, pursuant to this state’s “long arm” statute, OCGA § 9-10-91. See Gust v. Flint, 257 Ga. 129 (356 SE2d 513) (1987), rev’g Flint v. Gust, 180 Ga. App. 904 (351 SE2d 95) (1986).

In Coe & Payne Co. v. Wood-Mosaic Corp., supra at p. 60, the Supreme Court had expressed the view that our long-arm statute authorized the exercise of jurisdiction over nonresident defendants “to the maximum extent permitted by procedural due process.” In its decision in the present case, the Supreme Court would appear to have abandoned that view and to have adopted the position that our long-arm statute is not susceptible to such an interpretation. However, since Coe & Payne was not overruled, clarification of the Supreme Court’s position on this important issue will have to await a future litigation. One thing the Supreme Court has clarified, though, is that we must affirm the judgment of the trial court dismissing the present action.

Judgment affirmed.

Birdsong, C. J., and Sognier, J., concur.

Ernest H. Woods III, for appellant.

William R. Oliver, for appellees.


text:
    74745.
    In the Interest of J. L. B.
    (361 SE2d 236)
    Decided September 16, 1987.

      L. James Weil, Jr., for appellant.

      Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.
   Benham, Judge.

Appellant is one of three brothers named in petitions of delinquency. The brothers were tried jointly and all were represented by the same attorney. One brother, A. B., admitted his involvement in the various offenses with which he was charged. After the State presented its evidence and rested, the attorney for the brothers called A. B. to the stand. Although A. B. acknowledged he was aware of his constitutional right not to incriminate himself, the trial court refused to permit A. B. to testify. The allegations of delinquency against appellant and his other brother were sustained by the trial court. Contending that A. B.’s testimony would have exonerated him as to one charge of delinquent behavior and that he had been denied due process of law, appellant seeks reversal of the finding of delinquency on that one charge. The State agrees that the finding of delinquency on the one count should be reversed.

“ ‘It is manifest that if the co-defendant had been willing to take the stand and completely exonerate the appellant and had been precluded from doing so by the trial court, the absence of such exculpatory evidence would have been harmful to the appellant.’ ” In the Interest of J. S. S., 168 Ga. App. 340 (1) (308 SE2d 855) (1983). A. B. was informed of his constitutional rights under the Fifth Amendment but did not testify because the trial court refused to allow him to do so. This was harmful error, and the finding of delinquent behavior concerning the theft of the Arnold automobile must be reversed.

Judgment reversed.

Banke, P. J., and Carley, J., concur.


author: Pope, Judge.

text:
    74447.
    DOUGHERTY COUNTY FARM BUREAU v. HINMAN et al.
    (361 SE2d 236)
   Pope, Judge.

Plaintiffs James and Beatrice Hinman brought this action against defendants Georgia Farm Bureau Mutual Insurance Company and Dougherty County Farm Bureau alleging breach of a contract of insurance. Defendant farm bureau moved for summary judgment, which was denied, and this interlocutory appeal followed. The case against defendant insurance company remains pending below. Held:

Plaintiffs’ complaint alleges defendants’ joint and several liability for damages to plaintiffs’ property. Plaintiffs allege that they tendered property insurance premiums to defendant insurance company; that both defendants “made representations” that plaintiffs’ property was covered; that plaintiffs’ property was destroyed by fire; and that subsequent to the fire defendants notified plaintiffs that the insurance policy had been cancelled several months earlier. In support of its motion for summary judgment defendant farm bureau submitted the affidavit of its secretary-treasurer who averred that the farm bureau was “a distinct and wholly separate entity” from defendant insurance company; that the farm bureau was not in the business of selling or processing insurance and was not involved with defendant insurance company; that he had no knowledge of the farm bureau’s ever attempting to enter into a contract of insurance with plaintiffs and that the farm bureau had no knowledge of plaintiffs’ claim against it until being named a party defendant in this lawsuit.

In response to the summary judgment motion, plaintiffs submitted only a brief alleging that defendant farm bureau “in an agency capacity mailed notices to the plaintiffs ... on several occasions. . . .” Attached as exhibits to plaintiffs’ brief were two envelopes addressed to plaintiffs with a return address of defendant farm bureau. Also attached as exhibits were the letters apparently contained in each envelope. One letter was signed “Louise Rousseau, Secretary,” and requested plaintiffs to call defendant farm bureau’s office at their earliest convenience. The other letter was from defendant insurance company notifying plaintiffs that it was unable to provide insurance coverage for them.

1. Defendant farm bureau’s affidavit in support of its motion for summary judgment effectively denied any agency relationship between it and defendant insurance company. “As this denial is unrebutted, it may be treated as fact.” Harrison v. American Liberty Ins. Co., 155 Ga. App. 226, 227 (270 SE2d 389) (1980); Oglesby v. Farmers Mut. Exchange, 128 Ga. App. 387 (5) (196 SE2d 674) (1973); see also Travelers Indem. Co. v. Cumbie, 128 Ga. App. 723 (7) (197 SE2d 783) (1973), holding that the agent is competent to testify as to his agency and the extent of his authority. Plaintiffs counter this prima facie showing with only the letters and envelopes attached to their brief in opposition to summary judgment. “Thus, we have the denial of agency by the purported . . . agent, and the apparent contrary circumstances observed by the plaintiff[s]. Does this create a material issue of fact? We find that it does not. Tn passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.’ [Cits.] . . . ‘When uncontradicted and unimpeached evidence is produced as to the real facts, the inference disappears, and does not create a conflict in the evidence so as to require its submission to a jury.’ [Cits.]” Brewer v. Southeastern Fid. Ins. Co., 147 Ga. App. 562, 564 (249 SE2d 668) (1978); Stewart v. Ga. Mut. Ins. Co., 159 Ga. App. 91 (1) (282 SE2d 728) (1981). The trial court erred in denying defendant farm bureau’s motion for summary judgment. Accord Entertainment Developers v. Relco, Inc., 172 Ga. App. 176 (2) (322 SE2d 304) (1984); Shivers v. Barton & Ludwig, 164 Ga. App. 490, 491 (296 SE2d 749) (1982).

Decided September 17, 1987.

Thomas S. Chambless, Stephen S. Goss, for appellant.

Billy C. Mathis, Jr., Henry E. Williams, for appellees.

2. In light of our holding in Division 1, supra, defendant farm bureau’s remaining enumeration of error (alleging plaintiffs’ untimely compliance with Uniform State Court Rule 6.2) is moot. See generally Henderson v. Caughran, 182 Ga. App. 657 (356 SE2d 721) (1987); Pruitt v. Tyler, 181 Ga. App. 174 (1) (351 SE2d 539) (1986).

Judgment reversed.

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


author: McMurray, Presiding Judge.

text:
    74686.
    HUDSON v. THE STATE.
    (361 SE2d 240)
   McMurray, Presiding Judge.

Defendant appeals from his conviction of violation of the Georgia Controlled Substances Act (distributing cocaine). Held:

1. Defendant contends he was entitled to a directed verdict of acquittal because he was entrapped by undercover agents. We disagree. The testimony of the undercover agents showed that defendant voluntarily purchased cocaine for one of the agents when a source known to defendant refused to sell it directly to the agent. Defendant’s predisposition to distribute cocaine was demonstrated by this testimony. Accordingly, the issue of entrapment was submitted properly to the jury. Houston v. State, 175 Ga. App. 881 (1) (334 SE2d 907); Curtis v. State, 172 Ga. App. 473, 474 (2) (323 SE2d 684).

Decided September 17, 1987.

M. V. Booker, for appellant.

Beverly B. Hayes, Jr., District Attorney, Samuel A. Hilbun, William T. McBroom III, Assistant District Attorneys, for appellee.

2. The State was not required to present rebuttal evidence demonstrating that defendant was not entrapped. Evidence concerning defendant’s predisposition to distribute cocaine was presented sufficiently by the State in its case-in-chief. See Houston v. State, 175 Ga. App. 881, supra.

3. Defendant contends the trial court erred in failing to give certain requests to charge concerning the law of entrapment. The requests to charge do not appear in the record on appeal. Upon inquiry, the clerk of the trial court has certified that any charges requested by defendant were not a part of the record in the clerk’s office of the trial court. Accordingly, we cannot rule upon the propriety of defendant’s requests. Jones v. State, 133 Ga. App. 63, 64 (2) (209 SE2d 727). At any rate, our review of the trial court’s charge shows the jury was instructed properly and adequately concerning the law of entrapment.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    74943.
    JAM BONDING COMPANY, INC. v. STATE OF GEORGIA.
    (361 SE2d 238)
   Benham, Judge.

Appellant Jam Bonding Company executed a bond contract with Patsy McLymont, who subsequently failed to appear for her trial. The State sought to enforce the bond contract and presented its evidence at the required rule nisi hearing. Appellant was present at the hearing and objected, contending that the bond contract did not comply with OCGA § 17-6-73 because it did not contain appellant’s mailing address. The trial court entered judgment in the State’s favor, and appellant appeals, its sole enumeration being that absence of its address on the bond relieves it of liability as a surety. This appears to be a question of first impression, and appellant here relies on OCGA §§ 17-6-71 (a) and 17-6-73. OCGA § 17-6-71 (a) states, “The judge shall upon the failure to appear order an execution hearing for a date not sooner than 60 days but not later than 90 days after the failure to appear. Notice of the execution hearing shall be given by first-class mail by the clerk of court to the principal and to each surety at the addresses given on the bond or by personal service to the surety within 72 hours of the failure to appear at its home office or to its designated registered agent. Notice shall be served in the form of a scire facias, setting the date of the execution hearing.” OCGA § 17-6-73 states, “Every bond or recognizance given to secure the appearance of any person in any criminal proceeding shall have entered thereon the mailing address of the principal and each surety.”

Decided September 17, 1987.

Steven E. Lister, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

Appellant would have us hold that since its address was not on the bond as statutorily required, the bond contract is unenforceable against it. We decline to so hold. The purpose of the address requirement is to facilitate identifying and locating the surety, and the absence of the address does not in and of itself affect the validity of the bond contract. This is particularly true under the circumstances of the case before us. The record reflects that appellant was properly served with notice of the rule nisi hearing at which appellant appeared and was heard. We do not find a procedural due process defect, and appellant has not shown that he was harmed in any other way by the absence of the address. Moreover, it appears that appellant was in as good a position as anyone to supply the address since the bond was signed by appellant’s agent and space designated specifically for the surety’s name and address was provided below his signature. In summary, although the language of the statute requires the surety’s address be included on the bond, we construe that language as being “directory and not... a limitation of authority and particularly so where no injury appears to have resulted . . . the violation, if any, of the [statute sections] was harmless. [Cits.]” W. G. C. v. State, 173 Ga. App. 528, 531 (327 SE2d 522) (1985).

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


text:
    75037.
    DUFFEE v. THE STATE.
    (361 SE2d 239)
   McMurray, Presiding Judge.

Defendant was convicted of driving under the influence and improper lane change and this appeal followed. Held:

1. In his first enumeration of error, defendant contends the trial court erred in denying his “motion to suppress” the results of a breathalyzer test. In this regard, defendant alleges he was denied his right to an additional test performed by a person of his own choosing in accordance with OCGA § 40-6-392 (a) (3). We disagree.

Decided September 17, 1987.

C. Arthur Moss, Jr., for appellant.

John T. Newton, Jr., Solicitor, for appellee.

“Before the duty of the police arises to transport a defendant to the location of the test, he must first show that he had made arrangements with a qualified person of his own choosing, that the test would be made if he came to the hospital, that he so informed the personnel at the jail where he was under arrest, and that those holding him then ‘either refused or in any event failed to take him to the hospital for that purpose.’ Puett v. State, 147 Ga. App. 300 (248 SE2d 560).” Harper v. State, 164 Ga. App. 230, 231 (296 SE2d 782). It can be argued that defendant made arrangements for the additional test and that he informed the personnel at the jail that he wanted it. However, a jailer testified that defendant voluntarily withdrew his request for the additional test after conferring with his sister at the jail. Although the testimony of the jailer was disputed by defendant and his sister, it was sufficient to support the trial court’s finding that defendant voluntarily abandoned his right to an additional test. Resolution of conflicting testimony concerning the pursuit of additional testing is for the trial court. Lovell v. State, 178 Ga. App. 366, 368, 369 (343 SE2d 414).

2. In his second enumeration of error, defendant contends the trial court erred in failing to charge the jury, upon timely written request, as follows: “Under circumstances where there is a request for additional testing, there is coupled with the right to such testing, which is granted to the accused, a corresponding duty on the part of law enforcement officers not to deny him that right.” See Puett v. State, 147 Ga. App. 300, supra. This enumeration of error is without merit. Questions regarding the admissibility of an officer-administered test are decided exclusively by the judge and not the jury. See Lovell v. State, 178 Ga. App. 366, 368, 369, supra. See also Brown v. State, 177 Ga. App. 146, 148 (2) (338 SE2d 718). Accordingly, it was not error for the trial judge to refuse to charge the jury pursuant to defendant’s request. See Rogers v. State, 155 Ga. App. 685 (2) 686 (272 SE2d 549) (trial court did not err in refusing to instruct jury on consent to search).

Judgment affirmed. Sognier, J., concurs.

Beasley, J., concurs in Division 1 and in the judgment.


author: Carley, Judge.

text:
    74366.
    DEPARTMENT OF TRANSPORTATION v. FITZPATRICK et al.
    (361 SE2d 241)
   Carley, Judge.

Appellant-condemnor Georgia Department of Transportation filed a declaration of taking, thereby condemning a portion of property which was leased by appellee-condemnees and on which they conducted a business. The condemnation also resulted in the destruction of certain personalty belonging to appellees. Appellees filed a timely appeal to the superior court and the case was tried before a jury. The jury returned a verdict for appellees in the amount of $27,000. Appellant appeals from the entry of judgment on the jury verdict.

1. Appellees tendered for admission into evidence unaudited financial statements which had been prepared by independent accountants who were not present in court to authenticate the reports. Over appellant’s objection, the trial court admitted the unaudited financial statements into evidence as business records. The trial court’s ruling is enumerated as error.

“In Martin v. Baldwin, 215 Ga. 293 (110 SE2d 344) [(1959)], [OCGA § 24-3-14] was thoroughly discussed and under such decision the financial statement compiled from the records of the corporation is not itself a ‘Memorandum or record of any act, transaction, occurrence or event’ but a compilation of figures furnished by someone else. Thus, the trial court did ... err in [admitting] such evidence.” Smith v. Smith, 224 Ga. 689, 690 (164 SE2d 225) (1968). Appellees’ reliance on Ghingold v. Ghingold, 228 Ga. 515 (186 SE2d 747) (1972), is misplaced. In that case, the unaudited financial statements were admitted without objection and, notwithstanding their being hearsay, the statements were held to have probative value, not as business records, but only under the alternative theory that they constituted an admission of one of the parties. In this case, there was a timely objection to the admission of the statements and, if they were not admissible as business records, they have no probative value under any alternative theory. The trial court erred in admitting into evidence the unaudited financial statements in this case.

2. As to appellees’ recovery of business losses, the denial of appellant’s motion for new trial on the general grounds is enumerated as error.

The burden was upon appellees to produce evidence that the condemnation had resulted in business losses which were permanent rather than temporary. See generally Housing Auth. of Atlanta v. Southern R. Co., 245 Ga. 229 (264 SE2d 174) (1980); Metro. Atlanta Rapid &c. Auth. v. Datry, 235 Ga. 568 (220 SE2d 905) (1975); Department of Transp. v. Dent, 142 Ga. App. 94 (1) (235 SE2d 610) (1977). However, appellees produced no probative evidence whatsoever to authorize a finding of any permanent business losses attributable to the partial taking. The only evidence that appellees did produce is the unaudited financial statements discussed in Division 1 of this opinion and the testimony of one of the appellees who, in effect, merely testified from those documents rather than from personal knowledge. For the reasons discussed in Division 1, such evidence was hearsay and without probative value, even assuming that it had been admitted without objection.

Moreover, even assuming that appellees’ evidence had been admissible and that it did have probative value, it would have shown only an increasing improvement in the finances of appellees’ business in each of the years following the completion of the project for which the property had been condemned. Such evidence would not authorize a recovery for permanent business losses attributable to the condemnation. To the contrary, such evidence would show that any alleged business losses were nonrecoverable, insofar as such losses were limited in duration and were attributable to the construction of the project rather than to the partial taking. “Damages caused by mere temporary inconvenience due to the construction of the project for which the property was taken is not a proper element for consideration in determining just and adequate compensation for condemned realty. [Cits.]” Department of Transp. v. Dent, supra at 94 (1). See also Downside Risk, Inc. v. MARTA, 168 Ga. App. 202, 206 (6) (308 SE2d 547) (1983). Since there was no probative evidence whatsoever as to any permanent business losses which were attributable to the condemnation, the general grounds of appellant’s motion for new trial were meritorious as to this element of appellees’ recovery.

3. On direct examination, one of the appellees testified that the value of certain personalty lost as the result of the taking was $7,000. On cross-examination, however, it was established that the $7,000 figure represented the original purchase price of the personalty and did not include any element of depreciation. The witness then testified that he thought that the personalty would have a value of $5,000 if depreciation were taken into account, but he offered no testimony as to the formula or basis that he used to compute the depreciation in arriving at the $5,000 figure. Appellant moved to strike the appellees’ testimony as to value of the personalty. The trial court’s denial of appellant’s motion to strike is enumerated as error.

Where “the only evidence offered . . . concerns the replacement costs, there is not a sufficient guide given to the jury to enable them to reach an appropriate verdict. . . . [I]n the case of property which has some age, depreciation and other factors must of necessity be considered.” State Hwy. Dept. v. Murray, 102 Ga. App. 210, 214 (115 SE2d 711) (1960). “[NJowhere in the record [in this case] is there sufficient evidence for the jury to calculate the amount of depreciation so as to arrive at the fair market value by the replacement cost method.” Metro. Atlanta Rapid &c. Auth. v. Dendy, 250 Ga. 538, 542 (1a) (299 SE2d 876) (1983). Accordingly, the trial court erred in denying appellant’s motion to strike. Since there was no probative evidence as to the value of the personalty lost as the result of the condemnation, it follows that the general grounds of appellant’s motion for new trial were also meritorious as to this element of appellees’ recovery.

4. Appellant’s remaining enumerations relate to the issue of “uniqueness” for purposes of recovering business losses as a separate item of compensation in condemnation proceedings. It is an understatement to suggest that the concept of “uniqueness” as a prerequisite to a recovery of business losses has a confusing appellate history. See Department of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541, 543 (3) (309 SE2d 816) (1983). Appellant urges that the case at bar affords this court the opportunity to clarify the issue, overruling prior decisions and recognizing that there is a distinction between “uniqueness” for purposes of establishing the condition precedent to the right to a separate recovery of business losses on the one hand and “uniqueness” for purposes of establishing the underlying value of real property on the other. The author of this opinion would he inclined to draw the distinction suggested by appellant. See Department of Transp. v. Vest, 160 Ga. App. 368, 371-373 (287 SE2d 85) (1981) (special concurrence). See also Pursley, Ga. Eminent Domain, § 5-12, pp. 98-102 (1982). However, it is not merely this court’s earlier pronouncements which would have to be considered. Such a distinction would apparently be inconsistent with controlling Supreme Court authority. In Department of Transp. v. Dixie Hwy. Bottle Shop, 245 Ga. 314, 315 (265 SE2d 10) (1980), our Supreme Court held: “[B]usiness losses are recoverable as a separate item only if the property is ‘unique.’ [Cits.] The meaning of the term ‘unique’ is as set forth in Housing Authority &c. of Atlanta v. Southern R. Co., 245 Ga. 229 [(264 SE2d 174)] (1980).” The definition of “uniqueness” contained in-the Southern R. Co. decision, which was also a business losses case, focuses merely upon the value of the real property and not upon the relationship between the property and the business conducted thereon. Compare Metro. Atlanta Rapid &c. Auth. v. Ply-Marts, Inc., 144 Ga. App. 482, 483 (1) (241 SE2d 599) (1978). Thus, in both Southern R. Co., and in Dixie Hwy. Bottle Shop, our Supreme Court has apparently held that there is no viable distinction between the concept of “uniqueness” for the separate purposes. Accordingly, the case at bar may be a proper vehicle for the Supreme Court to reconsider its prior holdings on the “uniqueness” issue as it relates to business losses and to make a definitive and clarifying pronouncement on that issue. Until that time, however, this court does not consider itself to be authorized to draw a distinction between “uniqueness” for purposes of recovering business losses and “uniqueness” for purposes of determining the value of real property.

Decided September 18, 1987.

Dennis S. Mackin, J. Matthew Dwyer, Jr., Beryl H. Weiner, Thomas C. Dempsey, Michael J. Bowers, Attorney General, Roland F. Matson, Senior Assistant Attorney General, for appellant.

John C. Gray, Lori E. Schreiber, for appellees.

Therefore, assuming that upon the retrial of this case, appellees produce admissible evidence of business losses which are not remote and speculative (Department of Transp. v. Dixie Hwy. Bottle Shop, supra), of business damages that are permanent rather than temporary (Theo v. Department of Transp., 160 Ga. App. 518 (3) (287 SE2d 333) (1981)), and of “uniqueness” under any of the currently authorized definitions of that term (Department of Transp. v. 2.734 Acres of Land, supra), the trial court would be authorized to give instructions on uniqueness and on the recoverability of business losses by appellee.

Judgment reversed.

Banke, P. J., and Benham, J., concur.


text:
    74380.
    PEOPLES v. YU.
    (361 SE2d 244)
   Banke, Presiding Judge.

Appellant Peoples sued appellee Yu to recover for personal injuries she allegedly sustained in an automobile collision. She appeals an order dismissing her complaint as sanction for her failure to appear at a deposition and her failure to pay certain court-ordered attorney fees.

The appellee served a set of interrogatories and requests for production of documents on the appellant on July 26, 1985. The appellant did not respond; and on January 2, 1986, the appellee filed a “motion to compel and for imposition of sanctions.” The appellant’s attorney subsequently filed a motion to withdraw from the case, representing to the court that he had been unable to make his client understand the necessity of answering the interrogatories. Following a hearing, the trial court entered an order on March 10, 1986, granting the attorney’s motion to withdraw and directing the appellant to “answer fully and completely each interrogatory and respond to each request for production” within 15 days. Also, the court directed the appellant to pay attorney fees to the appellee in the amount of $200 within 120 days.

Decided September 18, 1987.

Marsha L. Sutherland, for appellant.

On March 24, 1986, the appellant submitted answers to the interrogatories; however, she did not comply with the portion of the order directing her to pay the attorney fees. On July 28, 1986, the appellee sent the appellant a letter warning her of his intention to move for a dismissal of the case in the event she did not pay the attorney fees. Simultaneously, the appellee served the appellant with a notice of deposition. Although the appellant acknowledged receipt of the notice, she did not appear for the scheduled taking of the deposition. On September 2, 1986, the appellee filed a motion to dismiss based on the appellant’s failure to pay the court-ordered attorney fees and to appear for the deposition. The appellant did not appear at the hearing on this motion, and after consideration of the documents on file, the trial court dismissed the case. The appellant then retained new counsel and filed the present appeal, contending that her conduct was not wilful and that the trial court abused its discretion by dismissing her complaint without a specific finding of wilfulness. Held:

It is apparent from the record that the appellant received ample notice of all aspects of the proceedings below. Indeed, at no point was the sufficiency of such notice ever contested. Trial judges are granted a very broad discretion in dealing with discovery matters, particularly where disobedience of a prior discovery order is involved. See generally OCGA § 9-11-37 (b) (2); Joel v. Duet Holdings, 181 Ga. App. 705, 707 (353 SE2d 548) (1987). The wilful failure of a party to comply with an order requiring the payment of attorney fees to an opposing party as reimbursement for the latter’s expenses in obtaining a discovery order has been held to warrant the extreme sanction of dismissal of the offending party’s pleadings. Serwitz v. Gen. Elec. Credit Corp., 174 Ga. App. 747, 749 (2) (331 SE2d 95) (1985). “The trial court’s order imposing an authorized sanction of dismissal is not fatally defective if it does not contain a recitation of wilful misconduct where there is an adequate showing of a failure to comply with a court order which equates to wilful misconduct. [Cit.]” Porter v. Eastern Airlines, 165 Ga. App. 152, 155 (2) (300 SE2d 525) (1983). We find no abuse of discretion by the trial court in the present case. Accord Freeman v. Ripley, 177 Ga. App. 522 (339 SE2d 795) (1986); Tompkins v. McMickle, 172 Ga. App. 62 (2) (321 SE2d 797) (1984).

Judgment affirmed.

Carley and Benham, JJ., concur.

John F. Daugherty, Robert J. McCune, for appellee.


author: Beasley, Judge.

text:
    74646, 74647.
    In the Interest of J. L. Y.
    (361 SE2d 246)
   Beasley, Judge.

Both mother and father of J. L. Y. appeal from the juvenile court’s order terminating their parental rights. Their appeals are consolidated.

J. L. Y. was born in 1978 to Patricia Bivens and Jimmy Yaughn while Mrs. Bivens was still married to another. Yaughn took the male child, then age four, away from the mother who lived in south Georgia and he and the child moved to Gainesville. In 1982, J. L. Y. was first brought to the attention of Department of Family and Children Services because of complaints of physical abuse and alcohol abuse by Yaughn.

Case No. 74646

The mother’s appeal we examine. While Bivens claimed not to know the whereabouts of the child, her sister was keeping him for Yaughn in 1983 and the uncontradicted evidence at the hearing showed that she knew of his location at least by November 1983. She made no effort to contact the child until the Department of Family and Children Services discovered her name and contacted her in July 1984. At that time she did begin to visit with the child and in March 1985 she attempted to obtain custody of him. The court at that time found that the child was deprived on the ground that she had abandoned the child and was unfit. The order was not appealed.

Although Bivens was granted visitation rights by that order, she made no attempts to see the child after April 1985, when she had telephone contact with him.

1. The mother challenges the termination on the ground that there was insufficient evidence from which to find abandonment because there was no evidence that she intended to “sever entirely” the parental relationship. This is not the appropriate question to address, however, in the context of the order appealed. That order took as its premise the unappealed order of 1985 finding that she had abandoned the child. Not having appealed, she is bound by that determination. See OCGA §§ 9-12-40; 9-12-42; Blackburn v. Blackburn, 168 Ga. App. 66, 72 (2) (308 SE2d 193) (1983); Wehunt v. Wren’s &c. Condo. Assn., 175 Ga. App. 70, 73 (4) (332 SE2d 368) (1985); First Fed. Savings &c. Assn., of Gainesville v. Gainesville Nat. Bank, 224 Ga. 150, 151 (160 SE2d 372) (1968). Thus, as to the mother, the question is only whether the court was correct in finding that the requirements of OCGA § 15-11-81 (b) (4) (A) & (C) had been met.

The termination of parental rights is a decision of drastic significance which requires deliberate scrutiny and caution. In re N. F. R., 179 Ga. App. 346, 348 (346 SE2d 121) (1986). It is done based only on clear and convincing evidence. Blackburn v. Blackburn, 249 Ga. 689, 694 (292 SE2d 821) (1982). On review of such a decision, the standard is whether after viewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. Blackburn, supra at 694.

So viewing the evidence, it showed that the mother did not have any contact with the child after April 1985, thus totally failing to communicate with the child, provide any support for the child, or to comply with the court’s plan designed to reunite her with the child. OCGA § 15-11-81 (C). The only reason alluded to in the evidence for this failure (the mother did not testify) was her fear of the father, as previously communicated to caseworkers. A caseworker had specifically asked her about this in October 1985, however, and the mother had denied that this was a concern.

The court’s finding as to the mother is affirmed. See Tyner v. Tyner, 170 Ga. App. 877, 878 (1) (318 SE2d 675) (1984).

Case No. 74647

2. The father’s appeal we examine under the same standard. Soon after he arrived in Gainesville with the child, he was reported to the Department of Family and Children Services for abuse and neglect of the child and alcohol abuse. A file was opened and the Department of Family and Children Services began to work with him in a relationship that lasted four years. Twice in 1983 the father gave custody of the child to the Department of Family and Children Services so that he could be detoxified at the Georgia Mental Health Institute. On one of these occasions he lied to the Department of Family and Children Services as to the reason for the temporary custody. Although the order is not in the record, it is not disputed that in August 1983 the father and the Department of Family and Children Services entered into a consent order by which he was to maintain physical custody of the child while the Department of Family and Children Services had legal custody. In April 1984, the father went before a citizens review panel which apparently reviewed the situation and made recommendations as to the father’s recovery and planned reconciliation with his child. On May 30, 1984, pursuant to the Department of Family and Children Services’ petition, the child was declared to be deprived, and legal and physical custody were placed in the Department. In that consent order, which forms the core of the present dispute, the father was ordered to do three things in order to regain custody of his son: (1) attend Alcoholics Anonymous three times a week; (2) provide the name of his AA sponsor to the Department of Family and Children Services; and (3) refrain from drinking any alcoholic beverages. All of these steps were to be done until August 1, 1984, when, if he complied, the child was to be returned. He did not.

Upon the hearing of the mother’s petition for custody in 1985 at which the father was present and participated, the court made the following finding concerning the father: “the father . . . has failed to comply with this Court’s order of May 30, 1984 in that he has not attended Alcoholics Anonymous meetings at least three times a week, failed to provide sponsor’s name to Department of Family and Children Services, failed to refrain from drinking alcoholic beverages

Again, the Department tried to work with the father, setting up a plan for him to take antabuse and be routinely tested for alcohol abuse, since by this time he was refusing to go to the mental health agency for counseling and the agency had exhausted the programs to try with him, for he would not cooperate and had finished none of the treatment he had begun. He was not successful on the antabuse and testing program because he was able to take antabuse and continue to drink, which he did.

In March 1986, another order was entered by the court, apparently in another effort to arrange for the child’s return to the father. Although this order is not in the record, it is not disputed that it required the father to continue working, to improve the living conditions, to go twice weekly for breath tests, to continue with counseling; it specified that if he ever registered .05 on his test, the child would be taken away. The child was then returned to him on April 4, 1986, and taken away again on June 23, 1986, precipitating the present termination proceeding.

The father does not dispute that he drank during this 1986 period when he had the child, but denied “being drunk.” The child, eight at the time of the hearing, stated that during his stays with his father, the father always got drunk and passed out; that he generally was fed by a neighbor; that he and his father slept together on a couch; that he wanted his father to quit drinking and felt that his father could hurt him. The social worker handling the case in 1986 stated that on a June visit to the trailer, she found stagnant water standing in the sink, no linens on the beds, little food in the refrigerator, and empty liquor bottles in the trash. Photos of the premises contained in the record verify these conditions. While in his father’s care during the April-to-June ’86 period, J. L. Y. dropped from a size 10 to a size 5 or 6. He also returned home with a badly infected finger which had not been examined by a doctor.

A psychologist, a child therapist, and a social worker all testified that the father acknowledged use of alcohol but denied a problem with it, and that denial was the first hurdle to be met by an alcoholic. In the opinion of these professionals, J. L. Y. was exhibiting the symptoms of the “caretaker role” often assumed by the family of an alcoholic. It was further their opinion that this role would lead to frustration, guilt, and unrealistic expectations on the child’s part, and that if he remained with the father he was likely to model the alcoholic behavior.

Further, there was expert evidence concerning the need for stability in the child’s life and the documented adverse effects on children who remain in foster care for lengthy periods of time. See In re G. M. N. & D. M. N., 183 Ga. App. 458 (359 SE2d 217) (1987) concerning “foster care drift.”

It is without question and uncontested by the father that the child has been deprived since 1983 when the first consent order was entered, satisfying OCGA §§ 15-11-2; 15-11-81 (b) (4) (A). While it is true that past deprivation is not sufficient for termination without a showing of present deprivation, the past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue. In re L. A., 166 Ga. App. 857, 861 (305 SE2d 636) (1983); In re G. M. N. & D. M. N., supra.

The father, approximately 56 years old at the time of the hearing, has refused to acknowledge any problem with alcohol and has steadfastly refused to change his drinking habits in the face of numerous court orders and plans initiated in an effort to reunite him with his child. His plea before us is very similar to that made by the father in In re G. M. N. & D. M. N., supra. Here, as there, the Department has repeatedly provided the father with options, services, and encouragement in an effort to reunite him with his child. (Yaughn testified that the first caseworker assigned to him was the “best caseworker he ever saw.”) Despite these efforts, only minimal improvement was made in the physical conditions in which he and the child lived and no improvement was made in his alcoholism treatment. His only plea to the court was that he would try to do better, given another chance. Such is not enough. “In a case such as this, a plea of ‘six more months’ to improve is without force to overcome the proof of unrelieved detriment already suffered by the [child] for [his] entire life, where there is no indication but the promise to suggest hope of improvement.” In re G. M. N. & D. M. N., supra at p. 461. The decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.

The court did not err in terminating the father’s rights under OCGA § 15-11-80 (b) (4) (A), (B), & (C). Blackburn v. Blackburn, supra; In re B. G., 180 Ga. App. 502, 503 (1) (349 SE2d 509) (1986).

Decided September 18, 1987.

G. Hammond Law III, for appellant (case no. 74646).

Robert L. Chandler, for appellant (case no. 74647).

Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, John A. Dickerson, Edward H. Lindsey, Jr., Eugenia M. Benedict, for appellee.

3. The father also contends that the trial court failed to make the specific factual findings to support the required legal standards for termination, as required by OCGA §§ 15-11-33 & 15-11-91. Part of his complaint is that several of the orders with which he failed to comply are not contained in the record but were orally testified to. No objection was made to this below and, in fact, the father acknowledged that these orders had been entered. Thus, any objection on this ground has been waived. Durrence v. Durrence, 224 Ga. 620, 625 (4) (163 SE2d 740) (1968); Riley v. State, 180 Ga. App. 409, 411 (1) (349 SE2d 274) (1986).

The record demonstrates that the court in its order did make specific findings concerning each legal element required for termination of parental rights.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.


text:
    74753.
    BARTON v. THE STATE.
    (361 SE2d 250)
   Benham, Judge.

Appellant was convicted of escape. On appeal, he claims that he was denied the right to a fair trial by a jury of his peers through the district attorney’s use of peremptory strikes to remove black people from the jury. He also argues that his right to a fair trial was compromised by his being tried in prison clothing.

1. Appellant contends that he should not have been tried before a jury in prison garb because his appearance unduly prejudiced the jury against him. Since appellant was being tried for escape, there was no harm in trying him in his prison uniform. Ingram v. State, 237 Ga. 613 (1) (229 SE2d 416) (1976); Krist v. State, 133 Ga. App. 197 (1) (210 SE2d 381) (1974).

2. We do, however, find merit in appellant’s remaining enumeration of error. The record reflects that the venire in this case consisted of 48 persons, five of whom were black. Of the five, four were put upon appellant. In the course of voir dire, the State’s attorney used three of his ten peremptory challenges to eliminate three of the four black veniremen, but kept the fourth, so that there were eleven white jurors and one black juror. The State did not strike any white veniremen. When the jury had been selected, appellant moved for a mistrial, contending that the State had used its peremptory challenges to systematically exclude black jurors. In accordance with Batson v. Kentucky, 476 U. S__(106 SC 1712, 90 LE2d 69) (1986), the trial court held a hearing on the motion to determine whether appellant made a prima facie case of purposeful discrimination, and ruled that appellant did not make out a prima facie case. We disagree with that ruling.

To establish a prima facie case of purposeful discrimination in jury selection under Batson, a defendant must show “that he is a member of a cognizable racial group, [cit.] . . . that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race, . . . that these facts and any other relevant circumstances raise an inference that the prosecutor used [the] practice [of peremptory strikes] to exclude the veniremen from the petit jury on account of their race . . . Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors . . . [T]he prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged jurors of the defendant’s race on . . . his intuitive judgment — that they would be partial to the defendant because of their shared race . . . Nor may the prosecutor rebut the defendant’s case merely by denying that he had a discriminatory motive . . . The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried. The trial court then will have the duty to determine if the defendant has established purposeful discrimination.” Batson, 90 LE2d at 87-89. In the case before us, the parties agreed that appellant was black and that the prosecuting attorney used his peremptory strikes to eliminate blacks from the jury. However, the trial court decided that since the prosecuting attorney did not strike all of the black veniremen, appellant did not make the requisite prima facie showing. The trial court’s resolution of the problem raises the question, “Does the striking of all but one black person from the jury mean that appellant’s constitutional right to equal protection of the laws has not been violated?” Our answer is “No.” In reaching our decision, we follow the lead provided in Fleming v. Kemp, 794 F2d 1478 (11th Cir. 1986), a federal habeas corpus case that originated in Georgia. In Fleming, thé prosecutor used eight of his ten peremptory challenges to strike blacks from the jury when the venire consisted of ten blacks and 45 whites. The district court found no prima facie case existed, but the 11th Circuit held that the defendant had a colorable Batson claim even though the jury was not all white. The Fleming opinion states that “nothing in Batson compels the district court’s conclusion that constitutional guarantees are never abridged if all black jurors but one or two are struck because of their race. On the contrary, Batson restates the principle that ‘a single invidiously discriminatory governmental act’ is not ‘immunized by the absence of such discrimination in the making of other comparable decisions.’ [Cits.] We cannot agree that Batson may be rendered a priori inapplicable by a prosecutorial game of numbers.” Fleming, supra at 1483. We agree. In light of the fact that the State here used its strikes to eliminate only black veniremen and eliminated all but one for an as yet unarticulated reason, we hold that the inference of discriminatory behavior is sufficiently raised.

Decided September 18, 1987.

Fred R. Kopp, for appellant.

Harry D. Dixon, Jr., District Attorney, Richard E. Currie, Assistant District Attorney, for appellee.

Since the trial court did not require the prosecution to explain its use of its peremptory challenges, we remand the case to allow the State’s attorney to do so, after which the trial court shall make findings under Batson. See Gamble v. State, 257 Ga. 325 (357 SE2d 792) (1987); Wise v. State, 179 Ga. App. 115 (346 SE2d 393) (1986). If the trial court determines that the State’s challenges violated Batson, a new trial with a properly composed jury shall be ordered; if it determines that there was no Batson violation, the conviction shall remain in effect. Either party may file a notice of appeal from the trial court’s ruling made after remand.

Case remanded with direction.

Banke, P. J., and Carley, J., concur.


text:
    74845.
    PATRICK v. THE STATE.
    (361 SE2d 251)
   Pope, Judge.

Defendant Patrick pled guilty to theft by taking in the amount of $1,815. The trial court made a written finding, pursuant to OCGA § 17-14-8 (a) (4), that restitution would be ordered as a condition of the sentence. Defendant was sentenced to serve five years on probation, to pay a fine of $1,000 and to make restitution to the victim in the amount of $2,000. In response to a question by defendant’s attorney as to why the court imposed restitution in an amount greater than the actual theft, the judge explained that he was taking into consideration the fact that the victim would be paid back over a period of years and that if the victim were to recover at civil law he would be entitled to an award for interest in an amount which would undoubtedly exceed the additional $185 imposed in the sentence. Defendant responded that he was “not unhappy” with the sentence. Nevertheless, defendant now appeals the sentence of restitution claiming it is excessive.

1. Defendant claims the sentence of restitution violates OCGA § 17-14-9, which provides: “The amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages.” However, as it is used in the statutory provisions relating to restitution, “ ‘[damages’ means all damages which a victim could recover against an offender in a civil action. . . .” OCGA § 17-14-2 (2). As the trial judge aptly noted, in a civil action for conversion the victim of defendant’s crime would be entitled to recover interest over the five-year period in which defendant is ordered to make payments to the victim. Therefore, the sentence is not defective because defendant was not ordered to pay an amount greater than the victim’s damages at civil law.

2. Defendant also claims the trial court erred by not adjudicating the amount of the victim’s damages after the amount was disputed, in violation of OCGA § 42-8-35 (7). Said statute states, in pertinent part: “[N]o reparation or restitution to any aggrieved person for the damage or loss caused by [the probationer’s] offense shall be made if the amount is in dispute unless the same has been adjudicated.” “Pursuant to this statute, a defendant who does not agree to the amount of restitution ordered by the trial court is normally required to contest the issue at the time the condition is imposed.” Johnson v. State, 156 Ga. App. 511 (274 SE2d 669) (1980). Here there is no dispute as to the amount wrongfully taken from the victim. The only dispute is whether restitution may rightfully include interest on the victim’s damages. This is a legal, rather than factual, dispute which is resolved against defendant in Division 1 of this opinion. The record shows defendant did not contest this legal issue at the probation hearing. Defendant’s attorney merely asked the court: “May I inquire how the court arrived at two thousand dollar[s] restitution?” After the judge explained that the restitution amount included an award of interest on the victim’s damages and that the additional $185 imposed by the sentence would undoubtedly be less than the interest calculated over the five years at the legal rate, defendant’s attorney responded: “Pm sure [defendant is] appreciative, your honor.” Upon questioning by the court, defendant himself indicated he was “not unhappy” about the sentence. The court did not err in failing to adjudicate the amount of restitution imposed since defendant did not dispute the sentence at the time it was imposed.

3. Defendant’s third enumeration of error claims the trial court, in determining the nature and amount of restitution, failed to consider the factors enumerated by OCGA § 17-14-10. This enumeration is squarely contradicted by the record which contains a written finding by the court stating it considered each of the six specific factors set forth in said statute in the process of arriving at a sentence conditioned upon restitution. Cf. Garrett v. State, 175 Ga. App. 400 (1) (333 SE2d 432) (1985) (where the record contained no indication that the legislatively mandated factors were considered).

Decided September 18, 1987.

J. Robert Joiner, Drew R. Dubrin, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, Harvey W. Moskowitz, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: Sognier, Judge.

text:
    74381.
    LOCKWOOD v. THE STATE.
    (361 SE2d 195)
   Sognier, Judge.

Appellant was convicted of violating the Georgia Controlled Substances Act by trafficking in cocaine, speeding and improper lane change, and he appeals.

1. Appellant contends the trial court erred by denying his motion to suppress evidence. At a hearing on the motion Mickey Little, a Georgia State Trooper, testified that about 8:30 p.m., July 24, 1986, he stopped appellant on Interstate 75 after observing appellant make two improper lane changes and clocking appellant driving over 65 miles per hour. Little also verified the speed on his radar. After Little checked appellant’s driver’s license and vehicle registration, and learning that appellant had been in Orlando, Florida for about two weeks, Little went to appellant’s vehicle to check the VIN and noticed for the first time that Curtis Phillips was in the car. Little was informed by Phillips that he and appellant had been in Kissimmee, Florida, for three days and were returning to New York. While talking to Phillips, Little observed that there were no seat belts visible in the back seat and the seat was not lodged firmly against the back as it should be. Because of the discrepancy between Phillips’ and appellant’s statements as to where they had been and for how long, and the fact that the back seat appeared to have been moved, Little returned to the rear of the car, told appellant of his (Little’s) suspicions, and asked for permission to search the car. Appellant consented orally, and Little then prepared a written consent to search form which appellant read, stated he understood, and signed. Little testified that had appellant not consented to the search, Little would have issued a warning or a traffic ticket, and appellant would have been free to depart.

Appellant argues that Little had no “reasonable suspicion” to investigate possible drug activity and the alleged traffic violations merely provided a pretext to stop appellant and search his car. We do not agree. Although Phillips testified at the suppression hearing that appellant was speeding and changed lanes only because an “18-wheeler” that Little had stopped was obstructing one lane of the interstate highway, Little testified that when he first observed appellant’s vehicle make improper lane changes the vehicle he had already stopped was completely off the travel lanes of the interstate highway. The trial court’s decision on questions of fact and credibility of witnesses at a suppression hearing must be accepted unless clearly erroneous. Parker v. State, 170 Ga. App. 655, 656 (2) (317 SE2d 891) (1984); Wilson v. State, 179 Ga. App. 780, 782 (1) (347 SE2d 709) (1986). We find no error in the trial court’s decision to accept Little’s testimony as true. There was no evidence of coercion or duress by Little to obtain appellant’s consent to search, and it is well settled that one of the exceptions to the requirement of both a warrant and probable cause is a search that is conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U. S. 218, 219 (93 SC 2041, 36 LE2d 854); Mancil v. State, 177 Ga. App. 663, 664 (340 SE2d 279) (1986). There was evidence to indicate that appellant’s consent to search was voluntary; therefore, the trial court did not err by denying appellant’s motion to suppress evidence seized as a result of the search of his car.

2. Appellant asserts error in the trial court’s denial of appellant’s request for production and in quashing his subpoena for the production of documents relevant to the suppression issue. Appellant submitted a Request For Production to the Sheriff of Catoosa County to obtain “[t]he entire personnel records of the officer who arrested Defendant” and “[a]ll records reflecting arrests made by and consents to search vehicles obtained by the officer who arrested Defendant in this matter.” A subpoena was issued to the Department of Public Safety, attention of Little, directing him to bring his personnel records, records as to every arrest made by him, documents reflecting every arrest he made for trafficking in cocaine or any controlled substance, arrests made by him for speeding and improper lane change, and all of his citation or ticket books or similar documents. The State’s motion to quash appellant’s Request For Production and subpoena of records and documents from Little was granted, and appellant contends that ruling was error. He argues that the information was relevant to establish a pattern of identical traffic stops by Little as a pretext for searching a vehicle for drugs.

As to the personnel records of Little, this court has held that “[t]he [police] officer’s personnel file can have no relevance to the guilt or innocence of the defendant in this case and the trial judge was absolutely correct to deny appellant access to it . . Jinks v. State, 155 Ga. App. 925 (2) (274 SE2d 46) (1980). In the instant case appellant has shown no relevance of Little’s personnel records and we find no error in the court’s ruling quashing the subpoena for such records.

In regard to the records of arrests for speeding and improper lane changes made by Little which resulted in seizure of narcotics, a notice to produce cannot be used in a criminal case to require production of reports, memoranda and documents in the files of law enforcement officers. Wilson v. State, 246 Ga. 62, 65 (1) (268 SE2d 895) (1980). The only purpose of such records would be to attack the credibility of Little, i.e., to show that those other persons were stopped on the pretext of traffic violations so Little could make an unlawful search for drugs. Aside from the fact that what occurred in another case would not be relevant as to whether or not traffic violations were committed in this case, Little gave a logical explanation for charging all speeders with going 65 miles per hour, namely, that under the pacing procedure Little used if a person was driving 65 miles per hour or faster, he charged them with driving 65 miles per hour. In a driving under the influence of alcohol case where appellant subpoenaed all of the DUI reports compiled by the arresting officer during the month of the defendant’s arrest in order to attack the credibility of the officer, we held the trial court did not err by quashing the subpoena. Taylor v. State, 172 Ga. App. 827 (1) (324 SE2d 788) (1984). For the reasons set forth in Taylor we find no error by the trial court in granting the State’s motion to quash appellant’s notice to produce and his subpoena for Little’s personnel records.

3. Appellant alleges the trial court erred by charging the jury that it was authorized to convict appellant of trafficking in cocaine based on constructive possession of the cocaine. He argues that OCGA § 16-13-31 (a) requires that a person be knowingly in actual possession of 28 grams or more of cocaine to be guilty of trafficking in cocaine, and therefore, the court’s charge that he could be convicted if found in constructive possession of the cocaine was erroneous. This argument has been decided adversely to appellant in Evans v. State, 167 Ga. App. 396, 397 (1) (306 SE2d 691) (1983).

4. Appellant next contends error in the trial court’s failure to give his requested instructions on the State’s burden of proof, equal access, and actual versus constructive possession. In regard to the requested charge on the burden of proof, appellant made no objection to the court’s charge on the burden of proof when asked by the court for exceptions or objections to the charge of the court. Thus, he has waived his right to enumerate error in that charge on appeal. Henry v. State, 176 Ga. App. 462, 464 (5 (a)) (336 SE2d 588) (1985). As to a charge on actual and constructive possession, appellant requested such a charge and the court, in fact, charged the jury that the law recognizes two kinds of possession, actual and constructive. The court then defined actual and constructive possession for the jury. The only portion of appellant’s requested charge on possession that was not given was a statement that “the offense of trafficking cannot be found unless actual possession has been found beyond a reasonable doubt.” As stated in Division 3 of this opinion the quoted portion of the requested charge is not a correct statement of the law. Thus, the trial court did not err by refusing that portion of the requested charge on possession. Since appellant requested the remaining portion of the charge, he cannot now complain of the charge given by the court. Davis v. State, 238 Ga. 239 (232 SE2d 235) (1977); Helton v. State, 166 Ga. App. 662, 664 (2 (b)) (305 SE2d 592) (1983).

In regard to the court’s failure to give appellant’s requested charge on “equal access,” the evidence did not support such a charge. Curtis Phillips, a co-defendant and the passenger in appellant’s car, testified that he and appellant were together the entire time they were in Florida except for a two-hour period when appellant left in the car, stating that he was going to visit his sick grandfather. Phillips also testified that while they were driving back from Fort Lauderdale, no one had an opportunity to put anything in the back seat.

The equal access rule provides that merely finding contraband on premises occupied by a defendant will not support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime. Gee v. State, 121 Ga. App. 41, 42-43 (1) (172 SE2d 480) (1970); Allums v. State, 161 Ga. App. 842, 844 (3) (288 SE2d 783) (1982). We have found no case in Georgia relating to the equal access rule as applied to two defendants charged with trafficking in cocaine and tried jointly. However, there are cases involving application of the rule indicating that the rule applies when persons other than the defendant and members of his immediate household (the equivalent here being Phillips in appellant’s automobile) had equal opportunity to commit the crime. Allums, supra at 845. Since there is no evidence that persons other than appellant and his co-defendant, Phillips, had access to, or entered, appellant’s car, the equal access rule does not apply to the facts of this case. Hence, the trial court did not err by failing to charge the jury on “equal access.”

5. Appellant claims the evidence is not sufficient to support the verdict. As stated earlier, appellant was stopped for speeding and making improper lane changes. After being stopped he consented to a search of his vehicle, which resulted in finding four packages wrapped in brown tape hidden under the rear seat. The packages were taken to the State Crime Laboratory where they were opened and found to contain a white powdery substance. Analysis showed that the powdery substance was 80 percent pure cocaine, with a total weight of almost nine pounds (4064 grams). Appellant was charged with trafficking in cocaine by actually possessing more than 400 grams of cocaine; 80 percent of 4064 grams is over 3200 grams of pure cocaine found in appellant’s possession.

Decided September 8, 1987

Rehearing denied September 21, 1987

John P. Pieri, John L. Taylor, Jr., John L. Schaub, for appellant.

David L. Lomenick, Jr., District Attorney, Amy Abernathy, David J. Dunn, James D. Franklin, McCracken K. Poston, Jr., Assis tant District Attorneys, for appellee.

As to the traffic offenses, Little testified that appellant was clocked at 65 miles per hour and this speed was confirmed by radar. Little also testified that appellant made two improper lane changes. Although Little’s testimony was contradicted by the testimony of Phillips, the weight of the evidence and credibility of witnesses are questions for the jury. Bryant v. State, 174 Ga. App. 468 (1) (330 SE2d 406) (1985). Thus, we find the evidence as to all offenses of which appellant was convicted sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

6. Lastly, appellant complains of the trial court’s failure to take proper corrective action after the prosecutor’s “improper, inflammatory” closing argument, and in denying appellant’s motion for a mistrial based on such improper argument. Appellant objected to certain remarks of the prosecutor in closing argument, and those objections were overruled. In one instance the court gave curative instructions to the jury, but appellant made no objection to the court’s instruction. Further, appellant did not request that the court rebuke the prosecuting attorney or take other corrective action, and this court cannot consider issues raised for the first time on appeal. Tolbert v. State, 180 Ga. App. 703, 704 (3) (350 SE2d 51) (1986). Appellant did not move for a mistrial and no ruling was made on any such alleged motion, so there is nothing for us to review in that regard. Hudson v. State, 175 Ga. App. 692 (1) (334 SE2d 20) (1985).

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs in Divisions 1, 2, 3, 5, and 6 and in the judgment.


text:
    74795.
    MARYLAND CASUALTY COMPANY et al. v. WALLS et al.
    (361 SE2d 253)
   Birdsong, Chief Judge.

An administrative law judge (ALJ) of the State Board of Workers’ Compensation found that Mark A. Walls, an employee of Arrowhead Alternator, Inc., while performing his employment duties by carrying a tray of parts at his place of employment, on August 19, 1985, felt a sudden “pop” in his lumbar region. He told his supervisor of the incident and received permission to see a doctor. He went to a chiropractor who began treatments which continued until November 20,1985. He contends that on that date the pain became so intense he became totally disabled and requested workers’ compensation benefits. His employer referred him to a doctor and controverted Walls’ claim. The ALJ found Walls sustained an accidental injury on August 19, provided his employer with sufficient notice, and continued to work until forced to stop because of a worsening of his condition; and that the date of his discontinuance of work became the date of a “new accident.” The ALJ accepted a stipulation of the parties that on August 19, 1985, Arrowhead’s insurance carrier was Maryland Casualty Company, but on August 21, 1985, Cotton States Mutual Insurance Company assumed coverage for workers’ compensation benefits. The ALJ also found as a fact that Maryland Casualty had filed a “Report of Coverage,” Form A (see Rule 126, Rules and Regulations of the State Board of Workers’ Compensation, Vol. 26 OCGA Appendix), but had never filed a Form B — Report of Cancellation of insurance coverage, with the Board. The ALJ concluded as a matter of law that Maryland Casualty’s coverage was still in effect on the date of the new accident and both insurers would “share equally” in the cost of payment of benefits.

On appeal, the State Board, upon de novo consideration of the evidence, substituted its findings of fact and conclusions of law for that of the ALJ. The Board found, “per stipulation,” that Maryland Casualty was the sole provider of workers’ compensation coverage on August 19, and that Cotton States’ coverage began August 21st. The Board also found as a fact that following his injury, Walls “continued to attempt his normal work duties, which were lighter than those he was performing at the time of his injury . . . [but o]n November 20, 1985, as a result of the wear and tear of ordinary life and the activity connected with performing his normal duties, and not because of another specific incident, the claimant’s condition had gradually worsened to a point where he could no longer perform his normal work. This gradual worsening constituted a change in his condition.” The Board concluded that Maryland Casualty was “the sole insurer at risk in this claim.” Maryland Casualty appealed to the Clayton Superior Court which affirmed the Board’s findings. We granted appellant’s petition for discretionary appeal. Held:

1. “The proper classification of the basis of a claim as an ‘accident,’ ‘change of condition,’ or ‘new accident’ hinges generally upon two factors: (1) Whether the claim seeks initial or additional compensation for the ‘injury’; and, (2) the proximate cause of the injury for which compensation is being sought. A claim for a work-related injury arising from an ‘accident’ is an initial claim for compensation. ... A claim for a ‘change of condition’ is a claim for additional compensation under the original award.” Slattery Assoc. v. Hufstetler, 161 Ga. App. 389, 390-391 (288 SE2d 654). Accord Holt’s Bakery v. Hutchinson, 177 Ga. App. 154 (338 SE2d 742). Stated differently, an “initial” claim for workers’ compensation cannot be based on a “change in condition” because a “condition” has never been established by a prior award or otherwise. Dairymen, Inc. v. Wood, 162 Ga. App. 430 (2) (291 SE2d 763). A claim for work-related injury arising from a “new accident” is usually an initial claim for compensation which has not been filed within the one-year statute of limitations of an original injury. Slattery Assoc., supra at 391. But here, even though only three months had passed from the date of the original injury, the date the statute begins to run is the date the employee is required to cease work. Hufstetler, supra at 391; Home Ins. Co. v. McEachin, 151 Ga. App. 567 (1) (260 SE2d 560).

In Central State Hosp. v. James, 147 Ga. App. 308 (248 SE2d 678), we held that “where the claimant is injured on the job but continues to perform the duties of his employment until such time that he is forced to cease work because of the gradual worsening of his condition which was at least partly attributable to his physical activity in continuing to work subsequent to his injury” the date of the injury for purposes of the running of the statute of limitations is the date the “disability manifests itself” and on that date is a “new accident.” Id. at 309; accord Mason, Inc. v. Gregory, 161 Ga. App. 125 (1) (291 SE2d 30). The Supreme Court agrees that aggravation of a prior injury by continued work, forcing the employee to cease work, is a “new accident.” Blackwell v. Liberty Mut. Ins. Co., 230 Ga. 174 (196 SE2d 129). The Board erred in finding Walls’ initial claim for compensation was based upon a “change in condition.” Carriers Ins. Co. v. Myers, 151 Ga. App. 674, 675 (261 SE2d 423).

2. Our Code authorizes the State Board of Workers’ Compensation to “make rules, not inconsistent with this chapter. . . .” OCGA § 34-9-60 (a). “[S]uch rules and regulations have the same force and effect as that of a statute.” Georgia Public Svc. Comm. v. Jones Transp., 213 Ga. 514 (1) (100 SE2d 183). Accordingly, the Board has promulgated the “Rules and Regulations of the State Board of Workers’ Compensation.” See Vol. 26 OCGA Appendix. Rule 126 thereof requires every employer or insurer to file with the Board a “Report of Coverage” — Form A, to “evidence that coverage is in effect until superseded or terminated.” A “Report of Cancellation,” Form B, “is evidence that coverage is terminated, effective not less than 15 days after filing. . . .” Id.

This court has interpreted the effect of a failure of compliance with this Rule to file a Form B with the Board notifying them of the termination of insurance coverage. In OCB Co./Nat. Cable Systems v. Wiley, 178 Ga. App. 101 (341 SE2d 870), where an employer changed insurers prior to a compensable injury suffered by one of its employees, and the former insurer failed to file a Form B until after the employee had been injured, we found that the Board was correct in finding both insurers jointly responsible for payment of benefits. In an earlier case, Lumbermens Mut. Cas. Co. v. Haynes, 163 Ga. App. 288, 289 (293 SE2d 744), we emphasized that although the insurance contract of the first insurer had terminated prior to the employee’s injury, and under contract law no liability would be found, the issue presented was one of liability of workers’ compensation coverage and was subject to the requirements of the Code and the Rules promulgated by the State Board of Workers’ Compensation for protection of all workers in this state. Hence, we have consistently held that under Rule 126, after insurance coverage commences, it is not terminated until 15 days following receipt of Form B by the Board. International Indem. Co. v. White, 174 Ga. App. 773 (2) (331 SE2d 37).

Appellants argue that the parties stipulated that “Cotton States Mutual Insurance Company assumed coverage effective August 21, 1985,” and that they could not be held jointly liable for the insurance coverage as the court was bound by the parties’ stipulation.

What the parties stipulated was “that Maryland Casualty Company had coverage on August 19, 1985, and that Cotton States went on the risk as of August 21, 1985.” This agreed state of facts does not preclude a factual or legal determination that Maryland Casualty had never terminated its coverage, because it failed to file a Form B in accordance with the Rules of the Board. The fact that Cotton States “went on the risk as of August 21, 1985” only makes Cotton States jointly liable for coverage with Maryland Casualty which had not terminated its coverage properly.

Judgment reversed.

Deen, P. J., and Pope, J., concur.

Decided September 21, 1987.

David A. Smith, for appellants.

Jack 0. Morse, Joe B. Sartain, Jr., Perry M. Sartain, for appellees.