text:
    A89A2272.
    HALIBURTON v. COLE et al.
    (389 SE2d 13)
   Deen, Presiding Judge.

Richard Haliburton brought suit on behalf of his son Preston against Sunset Hills Country Club, Inc., for injuries that the five-year-old child sustained when he slipped from the second rung of a ladder leading to the high diving board and struck his head on a concrete deck. The country club brought Melissa Cole, the adult who brought Preston to the pool, into the case as a third-party defendant. Haliburton appeals from the grant of summary judgment against him.

1. Appellant contends that he was an invitee upon the country club’s premises, as defined in OCGA § 51-3-1, although he was an invited social guest of Mrs. Cole, and that the defendant owed him a duty of ordinary care to keep the premises safe. Mrs. Cole was a paying member of the club, and according to club policy, had to pay guest privileges of $2 per guest for use of the pool. In her deposition, she testified that pool users had to sign in to use the pool and list their guests in a separate column. The members were billed monthly for their guests and “that’s how the pool made their money.” Appellee claims that appellant was a licensee to whom it owed only the duty of ordinary care not to willfully and wantonly injure him after his presence on the premises was known.

“[Wjhether a person is an invitee or a licensee depends upon the nature of his relation or contact with the owner (or tenant) of the premises. If the relation solely benefits the person injured, he is at most a licensee.” Chatham v. Larkins, 134 Ga. App. 856, 857 (216 SE2d 677) (1975); Strickland v. ITT Rayonier, 162 Ga. App. 317 (291 SE2d 396) (1982).

Construing the evidence against the movant and giving the plaintiff the benefit of all reasonable doubts and favorable inferences that can be drawn from the evidence, Fiumefreddo v. Scudder, 252 Ga. 279, 285 (313 SE2d 683) (1984), we find that a jury could find that the plaintiff was an invitee to whom the defendant owed a duty of ordinary care.

2. Appellant next claims that the country club failed to exercise ordinary care to keep its premises safe. We have examined all the evidence presented on the motion for summary judgment and find that appellant has presented no proof that the ladder in question was defective. The club manager and lifeguard testified that it was inspected on a regular basis and that it was inspected shortly after the incident in question and not found to be defective in any way. The child’s father testified that he found approximately 1/4” play in the ladder when he checked it in the month following the accident, but there was no testimony that such a small amount of movement was a hazard. The father claimed that strips of non-skid material on the ladder railings were worn, but there was no testimony that such strips should be attached to the railings or that they are required by any safety regulation. Other testimony indicated that the ladder steps were constructed of stamped, corrugated steel in a ribbed pattern. Once again, no regulation or expert testimony was presented to support an argument that a different type of mat should have been present on the ladder steps. The club regularly inspected the ladder and railing, and no complaints about it had ever been filed by pool users.

Decided November 20, 1989

Rehearing denied December 4, 1989.

Rand & Ezor, Robert R. Ezor, Andrew Shaul, for appellant.

Bentley, Karesh, Seacrest & Lobovitz, Gary L. Seacrest, Jean F. Johnson, Sam F. Lowe, Edwin A. Tate, for appellees.

The incident involving another child falling at the pool was mere hearsay, as none of the persons deposed had any personal knowledge of the incident. It is not known if she slipped and fell while running on the concrete deck or from the ladder to the high diving board. This alleged incident did not place the club on notice of any defect or hazard connected with the diving board ladder.

Any allegation that the pool was improperly supervised must also fail. A lifeguard was on duty scanning the pool when the accident occurred. The child climbed the first two steps of the ladder and fell during the few seconds the lifeguard was scanning the shallow end of the pool. In Wren v. Harrison, 165 Ga. App. 847 (303 SE2d 67) (1983), this court held that the duty to supervise the child rested with its parents, as they were familiar with the premises and the child’s limitations. The child here was accompanied by an adult who was responsible for his supervision. The trial court did not err in granting the country club’s motion for summary judgment.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


source: Caselaw Access Project

author: Carley, Chief Judge. Beasley, Judge,

license: Public Domain

text:
    A89A1382.
    ELLIS v. SEARS ROEBUCK & COMPANY et al.
    (388 SE2d 920)
   Carley, Chief Judge.

Appellant-plaintiff slipped and fell while ascending an escalator located in a store owned by appellee-defendant Sears Roebuck & Company (Sears). The escalator had been designed, installed, and maintained by appellee-defendant Montgomery Elevator Company (Montgomery). Appellant brought an action against appellees, seeking to recover for the personal injuries she allegedly sustained in her fall. The case was tried before a jury. At the close of appellant’s evidence, both appellees moved for a directed verdict. The trial court granted the motions and appellant appeals.

1. Viewed in the light most favorable to appellant, the evidence adduced at trial shows that she fell backward while ascending the escalator. She testified that her fall was caused by a malfunction of the moving handrails. According to appellant, the left handrail stopped moving, but the right handrail continued to move and, as she held onto both the moving and the non-moving handrails, she was twisted around and back and lost her balance. Appellant’s husband had ascended the same escalator some ten or fifteen minutes earlier and had had a similar experience which nearly caused him to lose his balance. He testified that, after his experience, he informed an employee of appellee Sears of the malfunctioning escalator.

Appellant concedes that, as against appellee Montgomery, she adduced no direct evidence of any negligent act or omission in the design, installation or maintenance of the escalator. She urges, however, the principle of res ipsa loquitur was applicable and that the trial court therefore erroneously directed a verdict in favor of appellee Montgomery.

“ ‘Negligence is not to be presumed, but is a matter for affirmative proof. [Cits.]. . . .’” Worth v. Orkin Exterminating Co., 142 Ga. App. 59, 62 (3) (234 SE2d 802) (1977). “ ‘The expression “res ipsa loquitur” means that the transaction speaks for itself. It is a rule of evidence which allows an inference of negligence to arise from the happening of an event causing an injury to another where it is shown that “the defendant owned, operated, and maintained, or controlled and was responsible for the management and maintenance of the thing doing the damage” and “the accident was a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence.” [Cit.] The rule is one of necessity in cases where there is no evidence of consequence showing negligence on the part of the defendant. [Cits.]’ ” Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 525 (3b) (317 SE2d 853) (1984). However, the evidence in the instant case “does not authorize the application of the doctrine ... for the reason that mechanical devices, such as the one here involved, get out of working order, and sometimes become dangerous and cause injury without negligence on the part of anyone. Any other ruling would make the occupier of premises an insurer. The principal basis for application of the rule of res ipsa loquitur is that the occurrence involved would not have occurred [but for] negligence, and [this] negligence [may properly be] charged to the person in exclusive control of the instrumentality. [Cits.]” Quick Shops v. Oldham, 100 Ga. App. 551, 556 (1) (111 SE2d 920) (1959). See also Darlington Corp. v. Finch, 113 Ga. App. 825, 827 (149 SE2d 861) (1966). Since the malfunction in the escalator certainly could have resulted without any negligent act or omission on the part of anyone, the principle of res ipsa loquitur is inapplicable. See generally Hospital Auth. of St. Marys v. Eason, 222 Ga. 536, 541 (1) (150 SE2d 812) (1966). There being no evidentiary basis upon which the trior of fact could have found fault on the part of appellee Montgomery, the trial court correctly directed a verdict in its favor. See Johnson v. Dallas Glass Co., 183 Ga. App. 584, 586 (1) (359 SE2d 448) (1987).

2. Pretermitting a lack of evidence as to the cause of the purported malfunctioning of the escalator, appellee Sears, as the owner of the premises, may nevertheless be held liable for the injuries that appellant sustained if it had superior actual or constructive knowledge of the existence of that malfunction and failed to exercise ordinary care either to correct the problem or to warn appellant of it. See generally OCGA § 51-3-1; Rogers v. Eckerd Drugs, 149 Ga. App. 788, 789 (1) (256 SE2d 130) (1979).

If the evidence showed only that the escalator had been malfunctioning for a ten-to-fifteen-minute period prior to appellant’s fall, a recovery based upon appellee Sears’ constructive knowledge would not be authorized. See generally Mazur v. Food Giant, 183 Ga. App. 453 (1) (359 SE2d 178) (1987). The evidence shows, however, that, during that period of time, appellee Sears had actual knowledge that its escalator was malfunctioning. The evidence would authorize a finding that appellant’s husband had informed an employee of appellee Sears of the malfunctioning escalator some ten-to-fifteen minutes before appellant fell. We cannot say that a landowner who has actual knowledge for a ten-to-fifteen-minute period that an escalator on its premises is malfunctioning is, as a matter of law, not negligent when it fails either to correct that potentially dangerous condition by stopping the malfunctioning escalator or otherwise, in the alternative, to warn its patrons of the existence of the potentially dangerous condition. “Under [OCGA § 51-3-1] the owner or occupier of the land is liable in damages to those expressly or impliedly invited upon the premises for such damage as is occasioned by his failure to exercise ordinary care to keep the premises and approaches safe. Ordinary care or diligence is defined in [OCGA § 51-1-2] as that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances. A legion of decisions by this court [has] pronounced the rule that questions of negligence and diligence are ordinarily referred to the jury for settlement. Thus, such questions are for the jury, and the courts will decline to solve them . . . except in plain, palpable, and indisputable cases. [Cits.] Where reasonable minds might disagree as to whether the alleged acts [or omissions] constitute an action of negligence, a question for the jury is presented. [Cit.] Negligence is a question particularly for the jury. [Cit.]” Knowles v. LaRue, 102 Ga. App. 350, 352 (116 SE2d 248) (1960).

Appellee Sears makes a “right for any reason” argument based upon the following alternative ground which was raised in, but rejected by, the trial court as a basis for the grant of the motion for a directed verdict: “[N]ot a single doctor testified that he could tell with any degree of medical certainty that [appellant] sustained any injury from this alleged fall. So [appellee Sears’] contention ... is that there is no competent evidence whatsoever that she sustained any injury from this alleged fall.” According to appellee Sears, this alternative ground was meritorious and would render the trial court’s grant of its motion for a directed verdict a correct ruling. A review of the record shows, however, that this alternative ground was without merit and would not have authorized the grant of appellee Sears’ motion for a directed verdict. See generally National Dairy Prod. Corp. v. Durham, 115 Ga. App. 420 (154 SE2d 752) (1967).

3. Appellant enumerates as error the exclusion of testimony by an employee of appellee Sears. The record clearly shows that this witness had no personal knowledge of any fact relevant to appellant’s fall or to appellee Sears’ liability. Accordingly, the trial court did not err in excluding the irrelevant testimony.

4. The grant of a directed verdict in favor of appellee Montgomery is affirmed. The grant of a directed verdict in favor of appellee Sears is reversed.

Judgment. affirmed as to appellee Montgomery and judgment reversed as to appellee Sears.

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

Beasley, Judge,

dissenting.

I respectfully dissent with respect to Division 2. There is no evidence, either direct or circumstantial or reasonably inferable, that Sears had actual knowledge of the hazardous malfunction for as much as 10 to 15 minutes before plaintiff’s fall.

Her husband Joe only testified that it was “at least 15 minutes” from the time he told the Sears employee about the malfunction and the time he went up the escalator again and discovered plaintiff had been injured. Her fall occurred “within that 15 minutes,” he affirmed. He did not have any difficulty with the escalator when he went up it the second time, and he did not know whether the left handrail was working properly then or not.

The Sears employee whom Joe testified he informed was not called as a witness. There is no evidence of who the employee was or what he could have done.

George Ellis, who was with plaintiff when she fell, simply stated that he sat on the couch on the lower floor near the escalator “anywhere from 10 to 15 minutes” before he went up it with plaintiff and others and she fell. George’s period of time is not connected by any evidence to the time Joe said he gave actual notice to the Sears employee. There is no evidence that he sat down on the couch at the same time (or before or after) Joe was informing the Sears employee.

The jury could only find as fact that Sears had actual knowledge for a period of less than 15 minutes before plaintiff’s fall, given that she fell some time after Joe advised the employee and some time before Joe returned to find her already injured.

The proprietor must have a reasonable opportunity, timewise, to take corrective action once it learns of an unsafe condition on the premises. Fulton-DeKalb County Hosp. Auth. v. Estes, 187 Ga. App. 120 (369 SE2d 262) (1988); Mitchell v. Food Giant, 176 Ga. App. 705 (337 SE2d 353) (1985). Plaintiff has the burden of showing that the defendant she seeks to place blame on had such a reasonable opportunity. Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 530 (4a) (317 SE2d 853) (1984). As stated succinctly in the latter case: “Where a dangerous condition is not permanent but must have existed for only a limited time prior to the occurrence, the rule is applicable that the defective condition must be shown to have existed for a sufficient period of time for the defendant to have discovered and remedied it. [Cits.] . . . The burden [is] on the plaintiffs to show that it was in existence a sufficient period of time for the defendant to have discovered it and taken appropriate action. For, unless there was such a time span then the defendant’s nonaction would be inconsequential.” (Emphasis supplied.) Id. at 530, 531.

Here, as a matter of fact, Sears had less than 15 minutes, so as a matter of law, it did not have such an opportunity as to allow the jury to find that it breached its duty to keep the premises safe. The proprietor is not required to patrol the premises continuously in the absence of facts showing the premises are unusually dangerous. Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980); Winn-Dixie Stores v. Hardy, 138 Ga. App. 342 (4) (226 SE2d 142) (1976). Since it appears that Sears had knowledge of this hazardous condition for less than 15 minutes before the incident complained of, there is no actionable negligence on its part in failing to provide a remedy so as to prevent plaintiff from succumbing to the hazard. Mazur v. Food Giant, 183 Ga. App. 453 (1) (359 SE2d 178) (1987).

Decided December 4, 1989.

McKenney & Froelich, William J. McKenney, David R. Moore, for appellant.

Alston & Bird, Ronald L. Reid, Lokey & Bowden, Glenn Frick, for appellees.

Consequently, a directed verdict was proper. Smith v. Morico, 166 Ga. App. 737 (305 SE2d 465) (1983); Halligan v. Underwriters at Lloyd’s, 102 Ga. App. 905 (118 SE2d 107) (1960); Johnson v. Dallas Glass Co., 183 Ga. App. 584 (359 SE2d 448) (1987). The trial court was correct, but for the reason explained above rather than for the reason it gave. See Lee v. Porter, 63 Ga. 345, 346 (1879); Coker v. City of Atlanta, 186 Ga. 473, 475 (1) (198 SE 74) (1938); Adams v. Emory Univ. Clinic, 179 Ga. App. 620, 621 (347 SE2d 670) (1986).

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


author: McMurray, Presiding Judge.

text:
    A89A1877.
    McCONNELL v. THE STATE.
    (389 SE2d 388)
   McMurray, Presiding Judge.

Defendant was charged via accusation with driving “a motor vehicle with .12% or more by weight of alcohol in the blood.” See OCGA § 40-6-391 (a) (4). A motion entitled “PRELIMINARY MOTION TO SUPPRESS AND AUTHORITY THEREFOR,” was filed on defendant’s behalf. This motion stated no facts showing what evidence was unlawfully seized. Further, the record shows no amendment to defendant’s motion to suppress and there is no indication that a pre-trial hearing was conducted on the motion. However, the trial transcript shows that immediately before trial defendant’s attorney reminded the trial court that defendant had a “preliminary motion to suppress” pending and that “[t]he purpose of the motion is to determine whether or not it was a lawful stop. . . .” Defense counsel then stated that a pre-trial hearing was not necessary and that he would rely on evidence presented at trial to support the motion to suppress. The State’s attorney did not agree with this procedure and he offered to present evidence in opposition to defendant’s motion to suppress. The trial court was concerned that deciding the motion to suppress during trial would “disturb the flow of the trial.” However, defense counsel insisted that he had no intention to “interrupt the normal flow of the trial ...” and stated that if he “filed the motion at the conclusion of the State’s case the Court could make a ruling on the motion to suppress.” The trial court agreed and the case was presented to the jury. The State’s evidence revealed the following:

On July 3, 1987, defendant was stopped by Officer Dale Hardy of the LaGrange Police Department after the officer observed defendant run through an intersection without observing a red flashing light. Officer Hardy noticed that defendant was unsteady on his feet; that he smelled of alcohol and was unresponsive to simple questioning. Officer Hardy arrested defendant for “driving under the influence [and] advised [defendant] of the implied consent warning.” Defendant did not indicate whether he would submit to a breath test, but later he consented to a State administered breath test and requested that he be given an opportunity for an independent test to determine the alcohol content in his body.

The State administered the breath test and the results indicated that defendant’s blood alcohol concentration was .16 grams percent. Defendant was then taken to a hospital for an independent analysis of his blood and the results of that test indicated that defendant’s blood alcohol concentration was .20 grams percent.

After the State rested, the trial court denied defendant’s motion to suppress. Defendant presented no evidence at trial, but defense counsel tendered several exhibits in support of the motion to suppress. The case was then submitted to the jury and the jury found defendant guilty of the offense charged. This appeal followed the denial of defendant’s motion for new trial. Held:

In his sole enumeration, defendant contends “[t]he trial court committed error in denying [his] Motion to Suppress in that [he] was not under legal arrest at the time or within a reasonable time thereafter when the breath and blood tests were administered.”

Defendant did not bring this question to the trial court by setting forth facts in his motion to suppress as is required by OCGA § 17-5-30 (b). Mosier v. State, 160 Ga. App. 415 (2) (287 SE2d 357). Compare State v. Blosfield, 165 Ga. App. 111, 112 (2) (299 SE2d 588). However, in an abundance of caution, we address the basis orally asserted by defense counsel for the motion to suppress, i.e., “whether there was probable cause to make the instant stop.” In this vein, we simply note that defendant’s illegal passage through the flashing red light authorized the stop. Minor v. State, 180 Ga. App. 869 (1), 870 (350 SE2d 783). The trial court did not err in denying defendant’s motion to suppress.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.

Decided December 4, 1989.

Kenneth L. Gordon, for appellant.

Daniel W. Lee, Solicitor, for appellee.


text:
    A89A2126.
    CORBIN v. THE STATE.
    (389 SE2d 26)
   McMurray, Presiding Judge.

Defendant was indicted on two counts of violating Georgia’s Controlled Substances Act. Defendant filed a motion to suppress. The evidence adduced at a hearing on this motion revealed the following:

During the week of February 7, 1988, a confidential informant approached Detective C. L. Sasser of the Chatham County Police Department and informed the officer that defendant was selling cocaine from his residence. (The informant had never before given Detective Sasser information regarding illegal drug activities.) Detective Sasser searched the informant and found no money or drugs. The detective then gave the informant $250 in United States currency and transported the informant to defendant’s residence. The informant entered defendant’s residence and, after approximately 10 minutes, he returned to Detective Sasser with no money, but the informant did have a substance which tested positive for cocaine. In an attempt to secure a search warrant for defendant’s residence, Detective Sasser reported this and other pertinent information in an affidavit to a judge of the Magistrate Court of Chatham County. A warrant was issued and a search of defendant’s residence revealed contraband which led to defendant’s arrest. The trial court denied the motion to suppress and defendant was later convicted of the crimes charged. This appeal followed. Held:

In his sole enumeration, defendant contends “[t]he trial court erred in denying [his] Motion to Suppress Evidence, said evidence having been seized under a defective search warrant issued solely on the information provided by an informant whose information had not been established as reliable.” This contention is without merit.

Detective Sasser’s affidavit revealed the reliability of the confidential informant’s information when Detective Sasser deposed that he set up a drug buy and witnessed the informant return from defendant’s residence with suspected cocaine. Further, Detective Sasser’s own observations, which are reflected in his affidavit, provide sufficient cause for a search warrant to issue for defendant’s residence. See State v. Perry, 234 Ga. 842 (218 SE2d 559). The trial court did not err in denying defendant’s motion to suppress.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.

Decided December 4, 1989.

Cail & Cail, Kenneth H. Cail, Jr., for appellant.

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


author: Sognier, Judge.

text:
    A89A2004.
    ZURICH AMERICAN INSURANCE COMPANY OF ILLINOIS v. BRUCE et al.
    (388 SE2d 923)
   Sognier, Judge.

Zurich American Insurance Company of Illinois brought a declaratory judgment action against its insured, the North American Riding for Handicapped Association, Inc. (“NARHA”), as well as Shalmar Foundation, Inc., and Catherine Bruce, seeking a determination whether it was obligated to provide coverage to NARHA and its local chapter, Shalmar, in a suit Bruce brought against them seeking damages for injuries she incurred when she fell off a horse at the stable operated by Shalmar. Zurich American appeals from the trial court’s denial of its motions for judgment notwithstanding the verdict and for a new trial.

1. Appellant contends the trial court erred by denying its motion for a new trial because the verdict returned by the jury and accepted by the trial court was ambiguous. The verdict provided that “Shalamar [sic] is covered by Zurich American Insurance Company. Catherine Bruce is not covered by Zurich American Insurance Company.”

“ ‘A verdict that is contradictory and repugnant is void, and no valid judgment can be entered thereon. A judgment entered on such a verdict will be set aside. (Cit.)’ [Cit.]” Four Oaks Homes v. Smith, 153 Ga. App. 326, 328 (265 SE2d 76) (1980). However, “[v]erdicts are to be reasonably construed and not avoided unless from necessity. OCGA § 9-12-4. The burden is upon the party attacking a verdict to show its invalidity. [Cit.]” Hunnicutt v. Hunnicutt, 182 Ga. App. 578, 579 (356 SE2d 679) (1987). The verdict returned by the jury in the case sub judice was capable of two conflicting interpretations. The finding that Shalmar was covered by appellant lends itself to a construction that the insurance policy appellant issued NARHA also covered Shalmar for the incident in question (thereby implicitly rejecting appellant’s argument that the policy was void due to a breach of warranty therein, see Division 2), and that Shalmar was entitled under the policy both to a defense by appellant in Bruce’s suit against Shalmar and also to the proceeds of the policy should Bruce be successful in her suit. However, the jury’s finding that Bruce is not covered by appellant can be interpreted as providing that even if Bruce should prevail in her suit against Shalmar, appellant need not provide Bruce with the proceeds of the insurance policy either directly or secondarily, as Shalmar’s insurer. Even construing the verdict in the light of the pleadings and evidence, we are unable to establish with substantial certainty which of these two conflicting interpretations was the true intent of the jury here. Compare Patterson v. Loggins, 142 Ga. App. 868, 869 (3) (237 SE2d 469) (1977).

“Where such an inconsistent and void verdict is returned by the jury, it is proper for the trial judge to refuse to receive the verdict, and to require them to return for further deliberations, under proper instructions. [Cits.]” Thompson v. Ingram, 226 Ga. 668, 671 (2) (177 SE2d 61) (1970). Upon receipt of the above verdict the trial court initially did refuse to accept it and, after discussion with counsel, submitted interrogatories to the jury and properly required them to deliberate further on the matter. The jury was unable to understand the interrogatories, however, and the record reveals that after extensive discussion between court and counsel (during which numerous suggestions to clarify the matter for the jury were made), the failure to formulate interrogatories acceptable to all the parties prompted the trial court to accept the original verdict, upon it being signed and dated, over timely objections by appellant. Thus, the corrective action sought to be taken was ineffectual, and the verdict received by the court was too uncertain to be the basis of a valid judgment. See generally id.; Four Oaks Homes, supra. “It is the duty of a trial judge not to receive an indefinite, imperfect or ambiguous verdict.” White v. Archer Daniels Midland Co., 180 Ga. App. 829, 830 (5) (350 SE2d 788) (1986). Accordingly, the trial court erred by failing to set aside the ambiguous verdict returned by the jury and by not granting appellant’s motion for a new trial.

2. Appellant contends the trial court erred by denying its motion for judgment n.o.v., asserting that judgment in its favor was demanded as a matter of law. Appellant’s argument is based upon the provisions in the accidental injury policy appellant issued NARHA. That policy insured “[a] 11 participants and instructors” in the equestrian activities promoted by NARHA and its local chapters and provided that NARHA warranted that “[a] 11 participants must provide a written consent form signed by a physician. . . . Failure to comply with this warranty shall render this policy null and void.” An endorsement to the policy provided that it was “mutually agreed and understood that the volunteers, coaches, chaperones, and employees are added as additional insured[s], but only while working in the scope of their duties in conjunction with [NARHA].” The policy contained no definition of “participant,” “volunteers,” or other terms used.

Appellant contends Bruce was a “participant” under the policy and because the evidence uncontrovertedly established that Bruce did not provide Shalmar with a written consent form signed by a physician, the warranty in the insurance policy was breached and the policy was void. However, the evidence adduced at trial fails to support appellant’s contention. At trial, both Shalmar’s manager, Margaret Roger, by deposition, and Bruce testified that Bruce was not a participant. Rather, Bruce explained that she was a state employee in the Division of Rehabilitation Services in the Department of Human Resources, and that she visited the Shalmar stable on a field trip to observe Shalmar’s facilities in order to determine whether Shalmar could be recommended to people with disabilities. Bruce, who is disabled and uses a wheelchair, stated that she went to Shalmar by herself, meeting others who arrived independently, and that several hours after her arrival, Roger encouraged her to get on a horse in order to set an example for several others who were afraid to ride and to show them that “it wasn’t anything to be afraid of, that it was something we could all do.” Roger categorized Bruce as a volunteer because Bruce was helping Shalmar to promote its program.

Appellant misrepresents the record when it asserts that the trial court concluded that the insurance policy in question was clear and unambiguous. Rather, the trial court determined that the policy contained numerous ambiguities which could not be resolved by the application of the rules of construction, thereby requiring jury consideration of the policy. We do not agree with appellant’s alternate argument that the trial court failed to interpret the policy according to the applicable rules of construction. “ ‘There are three steps in the process of contract construction. The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction (OCGA § 13-2-2); if after doing so the trial court determines that an ambiguity still remains, the jury must then resolve the ambiguity. [Cit.]’ [Cit.]” Cincinnati Ins. Co. v. Page, 188 Ga. App. 876, 878 (374 SE2d 768) (1988).

An ambiguity exists in the interpretation to be given the term “participant.” It is unclear whether “participants” covered (1) everyone who shared in the activities (except for instructors, for whom no doctor’s consent form was required), or (2) only those individuals for whom the Shalmar program was initiated and intended to benefit, who participated or intended to participate in the riding program itself. To accept the first definition so as to include as a “participant” anyone who happens to share in the activities at Shalmar would necessarily render redundant at least three of the four categories included in the policy by endorsement, namely, “volunteers, coaches, chaperones, and employees.” Further, such a construction would be the least favorable to the insured in that all volunteers, chaperones, and employees, as “participants,” would have to provide a doctor’s consent in order to prevent breaching the warranty and voiding the policy.

Decided December 5, 1989.

George H. Connell, Jr., for appellant.

Robert A. Falanga, Smith, Gambrell & Russell, James H. Brat-ton, Jr., for appellees.

Appellant failed to provide a definition or explanation in the policy of the critical term “participants.” “ ‘Exceptions, limitations and exclusions to insuring agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms.’ [Cit.] In brief, although the cardinal rule of construction is to ascertain the intention of the parties, if the language is susceptible to two different constructions the one most favorable to the insured will be adopted. [Cit.]” St. Paul &c. Ins. Co. v. Snitzer, 183 Ga. App. 395, 397 (1) (358 SE2d 925) (1987). Thus, we do not agree with appellant’s alternate argument that the rules of construction, when applied to the ambiguity in the policy, result in an interpretation favorable to appellant. Accordingly, we find no error in the trial court’s denial of appellant’s motion for judgment n.o.v. See generally White Repair &c. Co. v. Daniel, 171 Ga. App. 501, 503 (1) (320 SE2d 205) (1984).

3. Our holding in Division 1 renders it unnecessary to address appellant’s remaining enumeration in that it raises an issue unlikely to occur upon retrial.

Judgment reversed.

Banke, P. J., and Pope, J., concur.


text:
    A89A2014.
    SMALLWOOD v. THE STATE.
    (389 SE2d 390)
   Sognier, Judge.

Jerry Smallwood was charged with two counts of burglary and convicted of one count, and he appeals.

The evidence adduced at trial showed that on December 27,1988, John McNeal was flying a plane over Wilkinson County and noticed a truck concealed in a pine thicket on the grounds of the abandoned Wilkinson Nitrogen Plant. McNeal was familiar with the plant because his family originally sold the land to the owners of the plant, McNeal’s father was the electrician who did all the wiring for the plant, and a brother was the current caretaker at the now abandoned plant. Thus, McNeal knew that no vehicles were normally on the grounds and the presence of an unfamiliar truck in that location struck him as unusual. He contacted the Sheriff’s Department, and an investigation ensued.

John McNeal and Deputy John Richards testified that the truck, a flatbed with wooden sides, was parked outside the fence surrounding the plant, and that the truck bed contained copper wire. Richards also testified that he observed piles of aluminum conduit and more copper wire on the ground outside the plant buildings; that his investigation revealed that the truck was registered to appellant; and that several receipts for scrap metal from Hirsh Metal Company in Macon and a Hirsh Metal Company check dated 12/17/88, both made out to appellant, were found in the cab of the truck. Richards testified that based on his investigation, he left word for appellant to contact him and appellant did so. Richards further testified that after being advised of his rights and first denying involvement with the plant, appellant was readvised of his rights and gave a written statement in his own handwriting admitting he had gone to the plant on December 26th and removed 400 pounds of aluminum pipe, which he sold for $207, had removed copper wire, which was still on the back of his truck, and had gone back the next day (December 27, 1988) and taken more aluminum pipe and copper and left it on the ground. Richards testified that appellant also told him that two full Gatorade bottles found inside the motor control room at the plant belonged to him.

Kent McNeal, an electrician and the caretaker of the plant, testified he inspected the plant on Christmas Eve and found nothing unusual or out of place. On December 27th, however, he found the switch gear room “completely disassembled,” with cable having been cut loose and large amounts of conduit and wire missing. He testified that no wire was piled up outside the buildings on December 24th but on the 27th he observed large piles of wire and conduit. When shown a photograph previously introduced into evidence, authenticated, and identified by Richards as depicting one of the piles of wire found outside the switch gear room, McNeal identified an armor shielded cable connector in the photograph and testified that it could only have come from inside the switch gear room.

Appellant testified at trial that he had taken the wire and aluminum but that he had not entered the switch gear room or any other building, and had found the premises in disarray when he arrived on the 26th.

1. Appellant first enumerates as error the trial court’s failure to grant his motion for a mistrial made on the ground that the rule of sequestration had been violated when evidence was discussed during a recess with a witness who had not yet testified. However, the record fails to show the rule of sequestration had been invoked. “ ‘We will not presume error from a silent record. The [appellant] has the burden of showing error affirmatively by the record and this burden is not discharged by recitations in the brief. [Cit.]’ [Cit.]” Williams v. State, 188 Ga. App. 496, 499 (3) (373 SE2d 281) (1988).

Decided December 5, 1989.

Walter S. Scott, for appellant.

Joseph H. Briley, District Attorney, Fredric D. Bright, Assistant District Attorney, for appellee.

2. Appellant contends the trial court erred by denying his motion for a directed verdict of acquittal because the State had not proved entry, which is an essential element of the offense of burglary. We find no merit in this contention. Appellant admitted to Richards that he stole wire and conduit and left it on the ground on December 27th. Richards testified that State exhibit no. 4, an armor shielded cable connector, was found in a pile of wire and conduit outside the switch gear room. Kent McNeal testified that he was positive that State exhibit no. 4 had come from inside the switch gear room, and that he had inspected the switch gear room on December 24th and found nothing unusual, but that on the 27th much of the equipment had been removed or damaged. Richards also testified that appellant admitted to him that two bottles of Gatorade found inside the switch gear room belonged to him. “Only when there is no evidence to support a verdict to the contrary is a directed verdict of acquittal authorized. [Cit.]” Hall v. State, 189 Ga. App. 107, 108 (1) (375 SE2d 50) (1988). Here, there was some evidence from which the jury could have concluded that appellant entered the switch gear room, and thus the trial court did not err by denying appellant’s motion for a directed verdict of acquittal. See id.

3. Appellant raises as error the trial court’s charging the jury on expert witnesses, arguing that because no witness was tendered as an expert, the charge placed undue emphasis on the testimony of a lay witness, thereby prejudicing the jury. However, the trial judge explained his reasons for giving the charge, stating that because Kent McNeal was asked questions about technical matters which only an electrician could answer, he “felt compelled to give a little bit of explanation about that, telling the jury they didn’t have to believe everything [McNeal] told them just because of his experience.” The trial court believed, and we agree, that this charge benefited rather than harmed appellant. “ ‘Harm as well as error must be shown affirmatively by the record to authorize a reversal,’ [cit.],” Daniels v. State, 184 Ga. App. 689, 691 (3) (362 SE2d 775) (1987), and accordingly we find no error in this charge.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


author: Carley, Chief Judge.

text:
    A89A1500.
    JOHNSON v. ASHKOUTI et al.
    (389 SE2d 27)
   Carley, Chief Judge.

Pursuant to a written agreement, appellant-defendant leased commercial premises from appellee-plaintiffs for a three-year period. When appellant failed to make timely rental payments, appellees filed this action to recover the unpaid rent. Appellant answered and raised, among his other defenses, the affirmative defense of accord and satisfaction. In addition, appellant counterclaimed for costs and attorney’s fees, alleging that appellees’ suit was frivolous. After discovery, appellees and appellant filed cross-motions for summary judgment. The trial court denied appellant’s motion and granted summary judgment in favor of appellees. It is from that order that appellant brings this appeal.

1. Appellant urges that a genuine issue of material fact remains with regard to his accord and satisfaction defense. Under appellees’ evidence, there was no written or oral agreement whereby appellant was ever released from his contractual obligation to pay monthly rent. In opposition, there was no evidence of the existence of a written release agreement. According to appellant, however, he had reached an oral agreement with one of the appellees whereby “he could move out of the premises and . . . there would be no other obligation with respect to the lease and . . . the lease would be terminated.”

Construing the evidence most favorably for appellant, a genuine issue of fact may remain as to the existence of an oral agreement whereby the lease was to be terminated by his act of simply vacating the premises. However, that genuine issue is in no way material to appellant’s accord and satisfaction defense. The purported oral agreement would have no enforceability under the Statute of Frauds. See Wall v. Fed. Land Bank of Columbia, 156 Ga. App. 368, 372 (4) (274 SE2d 753) (1980). “Where the contract is required under the [S]tatute of [F]rauds to be in writing a modification of it must also be in writing. [Cits.]” Houston v. Jefferson Standard Life Ins. Co., 119 Ga. App. 729, 733 (d) (168 SE2d 843) (1969). Accordingly, any factual dispute as to the existence of an otherwise unenforceable oral release of appellant from his contractual obligations under the written lease agreement is not material to his accord and satisfaction defense.

Scott v. Lumpkin, 153 Ga. App. 17, 20 (2) (264 SE2d 514) (1980) is not authority to the contrary. Unlike the plaintiff in Scott, appellant has made no showing of such performance of the alleged oral contract as would suffice to bring the instant case within any exception to the Statute of Frauds that is established by OCGA § 13-5-30. The only “performance” shown by appellant is his own act of vacating the premises in purported reliance upon the alleged oral release. If evidence of such performance on the part of a tenant were sufficient to invoke the applicability of OCGA § 13-5-30, then the Statute of Frauds itself would become the exception and any tenant who vacated leased premises prior to expiration of the term established by his written lease could defend against a claim for unpaid rent merely by alleging the existence of an oral release from his written obligation. Standing alone, the tenant’s mere act of vacating the premises prior to the expiration of the term established by his written lease is no more consistent with his performance of an alleged oral release than with his unilateral abandonment of the premises. Such a unilateral surrender of possession of the leased premises confers no benefit upon the lessor and results in no consequent loss to the tenant so that the applicability of OCGA § 13-5-30 would thereby be demonstrated. See generally Godwin v. City of Bainbridge, 172 Ga. App. 290, 291 (1) (322 SE2d 733) (1984). Compare Cheek v. McWhorter, 29 Ga. App. 109 (113 SE 812) (1922) (surrender of premises by vendee under bond for title sufficient performance of alleged oral rescission of the sale). The Statute of Frauds is intended to provide the lessor with a defense to the vacating tenant’s reliance upon the alleged existence of an oral release from his written contractual obligations. OCGA § 13-5-30 is not intended to provide the vacating tenant with a defense to the lessor’s reliance upon the Statute of Frauds.

2. Prior to initiation of this civil action, appellees had filed a dispossessory proceeding against appellant based upon his nonpayment of rent. Had this dispossessory proceeding culminated in appellant’s eviction, the lease would have been terminated and appellees would have no right to pursue a claim for post-eviction rental payments. See Bentley-Kessinger, Inc. v. Jones, 186 Ga. App. 466. (367 SE2d 317) (1988). However, the evidence is undisputed that the dispossessory action did not culminate in appellant’s eviction. Appellant vacated the premises before he was evicted and appellees thereafter abandoned their moot dispossessory action. Under these circumstances, the lease was not terminated and appellant’s contractual obligation to make monthly rental payments continued. See Kimber v. Towne Hills Dev. Co., 156 Ga. App. 401 (1) (274 SE2d 620) (1980).

3. The trial court correctly granted summary judgment in favor of appellees and correctly denied summary judgment in favor of appellant.

4. Appellees’ motion for damages pursuant to OCGA § 5-6-6 is denied.

Judgments affirmed.

McMurray, P. J., and Beasley, J., concur.

Decided December 5, 1989.

Charles J. Vrono, for appellant.

Aiken & Ward, Lewis E. Hassett, Annette K. McBrayer, for appellees.


author: Pope, Judge.

text:
    A89A0942.
    In the Interest of D. N. M., a child.
    (389 SE2d 336)
   Pope, Judge.

Appellant/mother filed a “Petition to Review and Modify or Alter Visitation” of appellee/father in the Superior Court of Bibb County in which she sought to prohibit the father from visiting with his three-year-old daughter. Pursuant to the mother’s request, the superior court entered an order referring the mother’s petition to the juvenile court for consideration. The juvenile court entered an order denying the mother’s petition for modification of visitation, and we granted the mother’s application for discretionary appeal. Held:

1. The mother first challenges the jurisdiction of the juvenile court to hear the petition, based on her contention that because the petition was filed under the case number previously assigned to the parties’ divorce action, which was finalized on March 25, 1985, it was not brought as a separate action as required by the relevant statutory provisions and case law. Under the facts of the present case, we find no merit to these contentions.

Although it is true that a complaint to change visitation awarded by a prior final judgment must be brought as a new action pursuant to OCGA § 19-9-23, we do not believe the mere fact that the party filing the petition or complaint, here the appellant/mother, typed in the previous case number should be dispositive of this issue. Instead, we have examined the record and find the following to be illuminative in considering whether the petition was in fact brought as a separate action: a complaint cover sheet was completed by the mother and filed with the petition; court costs, as noted on the petition, were paid at the time of filing; the petition recited facts necessary to establish personal jurisdiction over the defendant/father; the petition contained a prayer for relief; the petition was verified; and lastly, the petition was filed with the father’s acknowledgment of service. If, as the mother contends, the petition was in fact brought as a motion or part of an existing action, none of these steps would have been necessary. All that was lacking in the present case to ensure that this was treated as a separate action was the assignment of a new case number when the petition was initially filed in superior court. We do not believe that such a failure, precipitated by the mother by inscribing the old case number on the petition when she filed it, should serve to divest the court of jurisdiction in this case. Moreover, we do not feel that the cases cited by the mother, in which the court found that “[n]o new proceedings were instituted” require a different result. See, e.g., Thomas v. Thomas, 221 Ga. 652 (146 SE2d 724) (1966). Here, it is clear that new proceedings were instituted. Consequently, we find no merit to this enumeration. Cf. Bennett v. Wood, 188 Ga. App. 630 (1) (373 SE2d 645) (1988).

2. The mother also contends that the superior court was without authority to transfer this matter to the juvenile court “because, under the provisions of OCGA Section 15-11-6 (b), the Superior Court has the authority to transfer custody cases to the Juvenile Court only if they are cases involving ‘divorce, alimony or habeas corpus. . . .’” We disagree that this statute should be so construed.

OCGA § 15-11-5 (c) provides that “[w]here custody is the subject of controversy, except in those cases where the law gives the superior courts exclusive jurisdiction, in the consideration of these cases the juvenile court shall have concurrent jurisdiction to hear and determine the issue of custody and support when the issue is transferred by proper order of the superior court.” “It is well established that the term ‘custody’ includes visitation rights. OCGA § 19-9-22 (1).” Bennett, supra at 631. Consequently, under the plain wording of the statute the superior and juvenile courts exercise concurrent jurisdiction over all matters relating to custody and visitation, except in those situations in which exclusive jurisdiction is vested in the superior court. The matters delineated in OCGA § 15-11-6 (b), which the mother contends are the only matters which may be transferred to the juvenile court for consideration, are matters over which the superior court, as opposed to the juvenile court, usually exercises exclusive jurisdiction. Thus, we believe that the legislature enacted the provisions of OCGA § 15-11-6 (b) simply to provide specific authorization for the transfer of questions concerning custody and support to the juvenile court in those cases over which the superior court otherwise would exercise exclusive jurisdiction. Inasmuch as the petition here, which sought only to modify visitation, was not a matter over which the superior court had exclusive jurisdiction, it was thus authorized to transfer the matter to the juvenile court for determination pursuant to OCGA § 15-11-5 (c). We find no error. See Graves v. Graves, 186 Ga. App. 140 (366 SE2d 809) (1988).

Decided October 10, 1989

Rehearing denied December 5, 1989

Erion & Exum, Charles T. Erion, for appellant.

E. Thomas Shaffer, Jr., for appellee.

3. After a thorough review of the record and the findings of fact by the juvenile court, we conclude that the mother’s remaining enumerations are without merit.

Judgment affirmed.

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

       We note also that the proceedings were assigned a new case number by the juvenile court.


text:
    A89A1344.
    LASOYA v. SUNAY.
    (389 SE2d 339)
   Pope, Judge.

Plaintiff Lasoya appeals from the trial court’s order granting defendant Sunay’s motion for summary judgment on plaintiff’s medical malpractice claim.

The record shows that plaintiff had been experiencing a variety of gynecological problems for several months after the birth of her daughter. Plaintiff was treated for these problems by Dr. Pezzin, a general practitioner. However, plaintiff’s problems persisted and a pelvic ultrasound was performed which revealed a mass in plaintiff’s pelvic region. Defendant, a surgeon, performed an exploratory operation on plaintiff on September 28, 1981. Dr. Pezzin acted as his assistant during the procedure. During the surgery defendant discovered that plaintiff’s right fallopian tube was very much enlarged and inflamed, that the mass observed on the ultrasound was a cyst or abscess between the tube and the uterus and that plaintiff’s left tube was also enlarged and inflamed but not to the extent of her right tube. Defendant also noticed a bluish-colored lesion on the left tube. Defendant removed the right tube and cyst. However, pursuant to Pezzin’s advice that the left tube should not be removed if at all possible, because to do so would render plaintiff sterile, defendant left the left tube intact except for obtaining a biopsy of the suspicious-looking area. The subsequent pathologist’s report revealed focal endometriosis. According to plaintiff’s affidavit, defendant informed plaintiff following the surgery that it was very unlikely that plaintiff could ever become pregnant because of the diseased condition of her remaining tube. Defendant testified in his deposition that he explained to plaintiff that he had removed her right tube and taken a biopsy of the lesion on her left tube, but that he did not discuss with her the possibility of her having children in the future, although he was of the opinion that it was unlikely that she would be able to conceive because of the condition of her remaining fallopian tube. Defendant last saw the plaintiff on October 2, 1981, and had no further contact with her once she was released from the hospital.

Plaintiff visited Dr. Pezzin in the latter part of 1983, complaining that she had been unable to become pregnant despite efforts to the contrary. Dr. Pezzin expressed to plaintiff his doubts as to her ability to conceive “because of the endometriosis, and what [he] saw at the surgery,” but nevertheless suggested that plaintiff consult a gynecologist and undergo a procedure known as a hysterosalpingogram, which would help determine the condition of plaintiff’s remaining fallopian tube. However, shortly after her visit to Dr. Pezzin, plaintiff ended her relationship with her then boyfriend, and, no longer desiring to become pregnant, did not pursue the recommendations of Dr. Pezzin.

Plaintiff apparently did not attempt to become pregnant again until the latter part of 1985. When she was again unable to conceive, she consulted Dr. Sanders, a gynecologist, on December 2, 1986. She did not return to see Dr. Sanders until March 26, 1987, at which time she informed him that she wanted the test first suggested by Dr. Pezzin in December 1983. Dr. Sanders performed the test on April 3, 1987, and discovered a blockage in plaintiff’s remaining tube.

Plaintiff filed the present action on November 7, 1987, contending that defendant negligently performed the biopsy of her left tube, which caused the subsequent blocking of the tube and her resulting sterility. Plaintiff also contended that defendant misrepresented to her that she was sterile because of the diseased condition of her tube, and not, as she contends, as the result of the negligently performed biopsy. The trial court granted defendant’s motion for summary judgment, finding that the applicable statute of limitation had expired. We affirm.

1. The statute of limitation relevant to this action is OCGA § 9-3-71 as amended July 1, 1985. See Hunter v. Johnson, 259 Ga. 21 (376 SE2d 371) (1989). Subsection (a) of that section permits a medical malpractice action to be filed within two years after the resulting death or injury arising from the alleged negligent or wrongful act or omission. Subsection (b) provides, however, that “[notwithstanding subsection (a) of this Code section, in no event may an action for medical malpractice be brought more that five years after the date on which the negligent or wrongful act or omission occurred.” Consequently, plaintiff’s action, having been filed more than five years after the alleged negligent act, would be precluded by the statute of repose codified in OCGA § 9-3-71 (b). However, in applying this section, we have previously held that “the statute of ultimate repose should not be applied to relieve a defendant of liability for injuries which occurred during the period of liability, but which were concealed from the patient by the defendant’s own fraud.” Hill v. Fordham, 186 Ga. App. 354, 358 (367 SE2d 128) (1988). “Fraud sufficient to toll the statute must be actual rather than constructive, except when there exists a confidential relationship between the parties, such as that between physician and patient. Where persons sustain toward another a relation of trust and confidence, their silence when they ought to speak ... is as much a fraud in law as an actual affirmative false representation. The question of the existence of such fraud, and the related question of the patient’s exercise of diligence in discovering the injury and the fraudulent concealment, are ordinarily for jury determination.” (Citations and punctuation omitted.) Shved v. Daly, 174 Ga. App. 209, 210 (329 SE2d 536) (1985).

Plaintiff contends that defendant should have known that performing the biopsy of the lesion on her tube in the manner in which he did, to wit, removing one centimeter of the tube and invading the “lumen” of the tube, would render her sterile and that, therefore, his representations to her that her inability to conceive was due to the diseased condition of the tube constituted a fraudulent concealment of her true condition. Defendant testified that he did not intend to invade the lumen of the tube, and that he did not know that he had done so at the time of surgery. The pathologist’s report on which plaintiff relies to support her claim of fraud shows only that “1 cm length of Fallopian tube” was removed.

“ ‘One of the elements of fraud is that defendant know that the representation is false. (Cits.) There is nothing in the record to reflect that (defendant) knew at any time that the treatment or opinion given by him was in error, nor is there any evidence that (defendant) fraudulently withheld such information from the patient.’ [Cit.]” Cannon v. Smith, 187 Ga. App. 434, 436 (370 SE2d 529) (1988). See also Hendrix v. Schrecengost, 183 Ga. App. 201, 202 (358 SE2d 486) (1987). Here the record supports the defendant’s contention that at the time he last saw plaintiff in October 1981, he believed, based on the condition of plaintiff’s fallopian tube, that she would be unable to conceive and that he had no knowledge to suggest that he had done anything during the surgical procedure that would render plaintiff sterile. Although defendant also testified in his deposition that he did not intend to invade the lumen of the tube, such testimony only raises an inference of negligence, not of fraud. See Shved v. Daly, supra at 211. “ ‘If facts do exist which would toll the statute of (limitation [or repose], plaintiff) has the burden of setting forth and supporting these facts, (cit.)’ [Cit.]. We find the defendant has pierced plaintiff’s mere allegation of fraud and is entitled to summary judgment.” Hendrix v. Schrecengost, supra at 203. See also Rowell v. McCue, 188 Ga. App. 528 (373 SE2d 243) (1988).

2. “Even if evidence of fraud exists, the statute of limitation [or repose] is not tolled when the plaintiff knew all facts necessary to show malpractice before the running of the period of limitation. [Cit.]” Hendrix v. Schrecengost, supra at 203. Here the plaintiff by her own testimony knew “something was wrong” in December 1983, and was advised at that time by Dr. Pezzin to seek further medical treatment in order that her condition could be more precisely diagnosed. However, plaintiff ignored that advice and did not seek further consultation until December of 1986, over five years after she was last seen by the defendant. “The statute of limitation [or repose] is not tolled where ‘(t)here is nothing in the record to suggest that (plaintiff) was prevented from learning of (the doctor’s) alleged negligence. . . .’ Shved v. Daly, supra at 211.” Hendrix v. Schrecengost, supra at 203. See also Cannon v. Smith, supra at 437; Beaver v. Steinichen, 182 Ga. App. 303 (355 SE2d 698) (1987); Bray v. Dixon, 176 Ga. App. 895, 898 (338 SE2d 872) (1985).

Decided October 31, 1989

Rehearing denied December 5, 1989

Thomas E. Maddox, Jr., for appellant.

Smith, Shaw, Maddox, Davidson & Graham, C. Wade Monk II, for appellee.

Judgment affirmed.

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


text:
    A89A1682.
    REEB v. DANIELS LINCOLN-MERCURY COMPANY, INC.
    (389 SE2d 367)
   Sognier, Judge.

Barbara J. Reeb brought suit against Daniels Lincoln-Mercury Company, Inc. (Daniels) in several counts to recover damages she incurred when she revoked her acceptance of a demonstrator automobile soon after she had purchased it. Daniels answered and counterclaimed for its unrecovered expenses in repurchasing and reselling the car. The case was tried by a jury, and after the close of Reeb’s evidence the trial court granted Daniels’ motion to dismiss the complaint. After hearing further evidence, the trial court directed a verdict for Daniels on its counterclaim. Reeb appeals.

The record reveals that on August 12, 1987, appellant went to appellee’s premises to look at cars. She was interested in a 1987 Mercury Sable, and was shown several demonstrator automobiles. Although she particularly liked a brown model, she was unable to drive that car because it was being worked on in the shop, and she test drove a similar car instead. A salesman told her the car she was interested in was a demonstrator; that it had been driven for over 12,000 miles and was a “bug-free car.” She purchased the 1987 brown Mercury Sable demonstrator and picked it up several days later. As she was driving the vehicle home, she noticed the “front end pulling and clicking and doing some funny things” and, concluding there was something wrong with the car, she turned around and went back to the dealership, only to find it was closed. The next morning a service department representative test drove the car and told her “it’s got a broken rack and pinion,” at which time appellee’s employees had her sign a paper ordering a part for the car. Although appellant testified the steering was not working properly and she was concerned about driving the car, she continued to drive it until September 18, 1987. Between the time she was told the rack and pinion was broken and September 18, 1987 there were “[a] few phone calls” between appellant and various people at appellee’s dealership. Appellant also testified that she had several mechanics look at it and then, on September 18, 1987 she “quit driving it” and revoked her acceptance.

Appellee’s president, William Daniels, testified that appellee had an agreement with the bank with which appellant financed the purchase of her car that if litigation ensued the dealership was required to repurchase the car. Daniels testified he paid the bank $14,750.78 for the car and resold it for $13,000, and that other expenses were incurred, with the total loss amounting to $2,310.78. Appellant presented no evidence as to the counterclaim.

1. Appellant contends the trial court erred by dismissing her complaint. We note initially that although appellee moved to dismiss the complaint and the trial court granted that motion, the motion was made at the close of appellant’s evidence, and the basis for both the motion and the ruling was that the evidence presented failed to support appellant’s claims and demanded a verdict for appellee. We will therefore treat the trial court’s ruling as the grant of a directed verdict to appellee rather than as a dismissal of appellant’s complaint. See OCGA § 9-11-50 (a).

(a) OCGA § 11-2-608 (1) (a) provides that “[t]he buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it . . . [o]n the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured.” Revocation of acceptance is an available remedy even where, as here, the dealer has attempted to limit warranties. (See Division 1 (b), infra.) Jacobs v. Metro Chrysler-Plymouth, 125 Ga. App. 462 (188 SE2d 250) (1972). Appellant testified without objection that the car she bought was described by appellee’s own mechanic as having a broken steering mechanism. She testified, however, that she signed a paper ordering a new part, thus indicating that she nevertheless accepted the car, despite knowledge of the defect, on the assumption that it would be repaired. See generally Trailmobile Div. of Pullman v. Jones, 118 Ga. App. 472, 473-475 (1) (164 SE2d 346) (1968). However, 38 days later the car had not been repaired and appellant was afraid to drive it. Whether the broken rack and pinion was a nonconformity which “substantially impaired” the car’s value to appellant, and whether the delay of 38 days in repairing the car was “unseasonable,” thereby giving appellant a second opportunity to revoke her acceptance of the car, are not issues that may be decided as a matter of law, but are jury questions. Hub Motor Co. v. Zurawski, 157 Ga. App. 850, 851 (1) (278 SE2d 689) (1981). “If there is ‘any evidence’ creating a material issue of fact, a motion for a directed verdict cannot be granted. [Cits.]” Professional Ins. Svcs. v. Sizemore Elec. Co., 188 Ga. App. 463 (1) (373 SE2d 276) (1988). There were material issues of fact in this case surrounding appellant’s revocation of acceptance, and we agree with appellant that as to that cause of action the trial court’s grant of a directed verdict to appellee was erroneous. See generally id. at 463-464 (1).

(b) In her complaint appellant also alleged fraud and breach of warranty as bases for recovery. Appellant maintained that appellee had knowingly made several false representations to her. We agree with the ruling and the reasoning of the trial court that there was no evidence that appellee had represented the car as new or as anything other than a demonstrator model with 12,000 miles, and that appellee’s salesman’s statements to appellant that it was a “bug-free car” and that it was a better buy than other cars were “puffing” and thus not actionable fraud. See generally Randall v. Smith, 136 Ga. App. 823, 824-825 (222 SE2d 664) (1975). Appellant also alleged that appellee had breached its warranty in that the car had serious defects. However, it is clear that appellee disclaimed all warranties, as the invoice recited that “[a]ny warranties on the products sold hereby are those made by the manufacturer. The seller, [appellee], hereby expressly disclaims all warranties, either express or implied, . . . and [appellee] neither assumes nor authorizes any other person to assume for it any liability in connection with the sale of said products.” Accordingly, as to these two causes of action we affirm the trial court’s grant of a directed verdict to appellee. See generally First Ga. Leasing v. First Ga. Bank, 188 Ga. App. 847, 848 (1) (374 SE2d 751) (1988).

2. If appellant properly revoked her acceptance of the automobile, appellee would not be entitled to recover the difference between its expenses and the resale price of the car. See OCGA §§ 11-2-608 (3); 11-2-602 (2) (c). Accordingly, because of our decision in Division 1 (a) that appellant’s cause of action based on revocation of acceptance must be retried, the counterclaim must be retried as well.

3. Appellant contends the trial court erred by excluding the entire testimony of her witness Sam Meggs. Appellant sought to introduce the deposition testimony of Meggs, a mechanic to whom she had brought the car for evaluation. The testimony was objected to by appellee, and the trial court sustained the objection on the basis that Meggs was not qualified to give an opinion about the steering mechanism on the car, since Meggs had testified he knew nothing about rack and pinion steering. Appellant does not except to that portion of the ruling, but maintains that portions of Meggs’ testimony, in which he described his observations when he drove the car, should have been admitted. While such testimony might have been admissible, Meggs’ observations were cumulative of appellant’s observations, which were testified to by appellant, and a trial court may properly exercise its discretion in deciding whether to admit cumulative evidence. See Dept. of Transp. v. Delta Machine &c. Co., 157 Ga. App. 423, 426 (3) (278 SE2d 73) (1981). The exclusion of evidence which is merely cumulative is not error even where the trial court’s reasoning in excluding it may have been erroneous. Hale v. Parmenter Ins. Agency, 150 Ga. App. 76, 77 (2) (256 SE2d 623) (1979).

Decided November 21, 1989

Rehearing denied December 5, 1989.

Allen W. Johnson, for appellant.

Isaac S. Jolles, for appellee.

4. Because portions of this case must be retried, the costs after retrial may be entirely different. However, we note that OCGA § 15-6-77 (b) (3) permits the recovery by the clerk of “any other costs authorized by law for postjudgment proceedings or for any other services which the clerk . . . shall perform.” We note also that microfilming records is specifically “authorized” by OCGA § 15-6-87 (a). Accordingly, we find no merit in appellant’s contention that the trial court erred by allowing the clerk to assess microfilming costs.

Judgment affirmed in part and reversed in part.

Banke, P. J., and Pope, J., concur.


text:
    A89A0838, A89A0839.
    YEE v. BARNWELL.
    (389 SE2d 392)
   Pope, Judge.

Plaintiff-appellant Henry J. Yee filed these appeals from judgments entered on May 25,1988, and June 1, 1988, sustaining a verdict in favor of defendant-appellee James R. Barnwell III. Because both appeals result from the same verdict, they are considered together.

Yee brought suit against Barnwell alleging fraud as a result of an investment deal. The facts leading to the instigation of the lawsuit were as follows: In 1985, Yee was seeking ways to reduce his tax liability. He mentioned this to his friend, Dave Clark. Clark told him that Barnwell had been able to help him in that regard. Clark then had Barnwell call Yee and arrange to meet. Barnwell and Yee met on December 30 after a telephone conversation in which Yee told Barnwell that he was interested in tax savings, plus overall financial planning. At the first meeting between the two, Yee gave Barnwell his ’84 tax return, plus certain other information on Yee’s land holdings. Barn-well took the information to his office and analyzed it. At a second meeting on the evening of December 30, Barnwell advised Yee that he needed not a tax shelter, but an income-producing asset. Barnwell told Yee about a young company called ICT-Interlect that produced and distributed educational software and videos. Barnwell told Yee that his brother was president of the company and that Barnwell had his own money in the company. Barnwell proposed that Yee buy an asset of the company, a completed film called “Renaissance in Space,” plus the rights to a second film in production called “Living in Space.” The price would be $125,000. Yee was required only to invest $10,000 in cash and sign for the remainder in short-term promissory notes. The corporation would use the notes as collateral to borrow the remainder of the money from a bank in South Carolina. Barnwell told Yee that the company would market the film and the income stream would take care of the payments on the notes. However, the bank in South Carolina with which the company dealt refused to do the loan. Barnwell and Yee then went to Yee’s bank in Georgia and Yee borrowed $75,000 and signed a contract with ICTInterlect to purchase the rights to “Renaissance in Space” only. The contract stipulated and Yee knew that $15,500 of the money was to go to satisfy an outstanding perfected lien against the film. The film did not produce the income expected and Yee and the company executed a buy-back agreement. When Yee called upon the company to honor the buy-back agreement the company indicated that it could not pay it. Yee then brought suit against the company for breach of contract and against Barnwell for fraud. Yee received a judgment against the company for the amount due, plus interest.

1. Yee argues that the trial court erred in directing a verdict for Barnwell on the issue of inceptive fraud or fraud in the inducement. We note that the trial court did submit to the jury the issues of actual fraud, duties of a fiduciary and the lower standard of fraud needed to be proved against one who acts as an investment advisor or financial planner. At one point, the trial court indicated that there could be no recovery for fraud in the inducement because the contract between ICT-Interlect and Yee contained a merger clause, Yee had affirmed the contract and Barnwell was a third-party beneficiary to the contract by virtue of the $15,500 lien he had for money he had lent previously to the company. While we agree with Yee that Barnwell was not a third-party beneficiary, we find that it was not error to direct a verdict on the issue of fraud in the inducement.

“A third-party beneficiary contract is one in which the promisor engages to the promisee to render some performance to a third person. [Cit.] It must appear that both parties to the contract intended that a third person should be the beneficiary. [Cit.]” Stewart v. Gainesville Glass Co., 131 Ga. App. 747, 753 (206 SE2d 857) (1974). Clearly, the contract in question was not intended for the benefit of Barnwell. Its purpose was to transfer the asset. However, even if the trial court erred in its analysis, it does not affect the correctness of its ruling. “A correct decision of a trial court will not be reversed, regardless of the reasons given therefor.” Coker v. City of Atlanta, 186 Ga. 473 (1) (198 SE 74) (1938).

The situation in the present case is controlled by Van Den Berg v. Northside Realty Assoc., 172 Ga. App. 591 (2) (323 SE2d 839) (1984). “ ‘The rule in this state is that where one who can read signs a contract without reading it, he is bound by the terms thereof, unless he can show that an emergency existed at the time of signing that would excuse his failure to read it, or that the opposite party misled him by an artifice or device which prevented him from reading it, or that a fiduciary or confidential relationship existed between the parties upon which he relied in not reading the contract. (Cit.)’ Cochran v. Murrah, 235 Ga. 304, 305 (219 SE2d 421) (1975). [Yee] argues that the present case comes within the last exception because of the fiduciary relationship between principal and agent. However, the existence of such a relationship is not sufficient by itself. As the Supreme Court noted in Cochran, supra, it is the reliance upon that relationship which relieves one of the duty to read.” Van Den Berg at 591-592.

Yee claims that he relied upon the fiduciary relationship between Barnwell and himself and this relieved him of any duty to inquire about the details of the deal and the contract he entered. The inceptive fraud he alleges is Barnwell’s nondisclosure of his ownership or interest in the company and that the lien to be paid off belonged to him. Yet Yee’s own testimony showed that he knew on December 30 that Barnwell had his money in the company and had an interest in the company and that Barnwell’s brother was president. Three months passed before Yee actually signed the contract. Neither at the initial meetings on December 30 nor at anytime before the signing of the contract did Yee ask Barnwell about the lien or further inquire about Barnwell’s interest in the company. (At trial, Barnwell testified that he owned 18 percent of the stock in the company.) In these circumstances, there is no evidence to justify reliance on a fiduciary relationship. Barnwell was acting as an agent for both the company and for Yee. He disclosed that fact to Yee. He never asked nor received compensation from Yee or from the company. As agent for the company, Barnwell was included within the protection of the merger clause.

Decided December 5, 1989.

Moore & Rogers, William R. Johnson, G. Phillip Beggs, for appellant.

Glenville Haldi, for appellee.

2. Yee argues that the trial court’s charge that it was lawful and proper for Barnwell to be reimbursed $15,500 for the lien he held was improper as a comment on the evidence. There is no merit to this argument. The evidence at trial showed that the lien pre-dated the deal with Yee, it was given for full consideration, and was duly recorded and perfected. The lien had to be satisfied to give Yee clear title to the asset he purchased.

3. Finally, Yee argues that the verdict is contrary to the weight of the evidence. “On appeal, the evidence must be construed to uphold the jury’s verdict, and the sole question for determination is whether there is any evidence to authorize the verdict. [Cit.]” Gold Kist Peanuts v. Alberson, 178 Ga. App. 253, 254 (342 SE2d 694) (1986). There is evidence that supports the verdict. Consequently, the judgment must be affirmed.

Judgments affirmed.

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


author: Deen, Presiding Judge.

text:
    A89A0878.
    WASHINGTON v. THE STATE.
    (389 SE2d 407)
   Deen, Presiding Judge.

In Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988), it was made clear that any contention concerning ineffective counsel should be made at the earliest practicable moment. That moment was during the 30-day period following entry of judgment on November 7, 1988. The second appointed counsel was ineffective in raising this issue at the first practicable moment. The question was not raised at the hearing held on December 21,1988, on the motion for new trial. It was not raised between that date and January 9, 1989, when the motion was denied by the trial court. Since the issue has been waived, it is unnecessary to discuss the merits.

Judgment affirmed.

Birdsong and Benham, JJ., concur.

Decided December 5, 1989.

Tina G. Stanford, for appellant.

Douglas C. Pullen, District Attorney, Bradford R. Pierce, Assistant District Attorney, for appellee.


author: Birdsong, Judge. Benham, Judge,

text:
    A89A1107.
    BUTTS v. THE STATE.
    (389 SE2d 395)
   Birdsong, Judge.

Charged with kidnapping, aggravated assault, and robbery, appellant was convicted of false imprisonment and simple assault. In his sole enumeration of error, appellant contends the trial court committed reversible error by overruling appellant’s objection to a portion of the State’s cross-examination of appellant.

The record reflects that on direct examination appellant testified that he had been employed as a correctional (mental health) sergeant at the Metro Correctional Institution; that he subsequently was employed as a security officer; that he never had been convicted of any type of crime; that nothing like this had ever happened to him before; and, that he did not commit the crimes charged in the indictment. He also testified twice on direct examination that he had received an honorable discharge from the Marine Corps. Inherent within this testimony is the unmistakable assertion that appellant was an honorable, law-abiding person engaged in the broad field of law enforcement.

On cross-examination, appellant testified that he was a board certified police officer; that he still considered himself as a police officer when he became employed as a security officer; and, that he was a person who follows the law. The prosecutor then inquired: “Why then on April 23 did the police find dope in your car?” Appellant’s counsel made an immediate “objection,” and requested that the jury retire so that a motion could be made outside its presence. Thereafter, appellant moved for a mistrial. Appellant’s counsel asserted inter alia the following grounds in support of the objection and motion: “There is no way to undo the prejudice in this case. If he answers the question, anyway he answers it, the specter of dope is put out in this case. . . . This is an attempt by the State to smear the defendant, paint him as a bad man, without any . . . proof that it is tied to him at all, simply as a way to prejudice the jury against this defendant.” (Emphasis supplied.) The trial court denied the motion for mistrial and overruled the companion objection.

1. Liberally construing statutory appellate requirements “so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein . . .” OCGA § 5-6-30, we find that appellant has adequately raised on appeal of his criminal conviction the issue of whether the question posed “was proper for impeachment of appellant.” Moreover, we note that at trial appellant expressly objected to the question in issue and moved for a mistrial on several grounds, including the ground that “specter of dope” alluded to in the question painted appellant “as a bad man.” Thus, appellant effectively, albeit inartfully, asserted that the question was improper impeachment because it improperly placed his character in issue.

2. The evidence that marijuana was found in the car appellant was driving at the time of his arrest would tend to directly refute and impeach both his inherent assertions on direct examination and his express assertion on cross-examination that he was the type of person who obeyed the law. “Once a defendant ‘opens the door’ for character evidence, specific events may be used in testing the extent and foundation of the defendant’s knowledge and the correctness of his testimony on direct examination.” Brown v. State, 237 Ga. 467, 468 (228 SE2d 853); accord Williams v. State, 257 Ga. 761 (4) (363 SE2d 535). Moreover, the facts of this case are distinguishable from the facts of State v. Rocco, 259 Ga. 463 (1) (384 SE2d 183) where the prosecution initially elicited the testimony sought to be impeached from the criminal defendant on cross-examination and then impeached such testimony with evidence which was otherwise inadmissible. Here, appellant’s cross-examination responses were inextricably linked to his direct testimony concerning his honorable and law-abiding character. Compare Weaver v. Ross, 192 Ga. App. 568 (386 SE2d 43). Thus, impeachment of the cross-examination responses in this particular instance would per force impeach testimony voluntarily given by appellant in direct examination in his own behalf. Moreover, this interpretation is consistent with the express statutory intent that rules of evidence be “framed with a view” to promoting “the discovery of [the] truth” in judicial proceedings. OCGA § 24-1-2.

The dissent, in essence, would assert that Williams and Brown are cases limited in application to the impeachment of a defendant’s testimony. Suffice it to reiterate that the evidence offered by the State was admissible for purposes of impeachment of appellant. It is a cardinal evidentiary rule that if evidence is duly admissible under any legitimate theory, it should be admitted even though it does not qualify for admission under one or more other theories of admissibility. Boatright v. State, 192 Ga. App. 112 (6) (385 SE2d 298); Pugh v. State, 191 Ga. App. 394, 395-396 (382 SE2d 143). See Wyatt v. State, 206 Ga. 613, 616-617 (57 SE2d 914). Moreover, we will not reverse a correct decision of the trial court, regardless of the reason given therefor. Ely v. State, 192 Ga. App. 203 (4) (384 SE2d 268).

The dissent asserts that in the case at bar the State did not offer evidence that appellant was not law abiding, and the district attorney’s question itself did not qualify as evidence. Suffice it to say that the State also is entitled to a thorough and sifting cross-examination, OCGA § 24-9-64, and that having placed not only his character as an honorable, law-abiding citizen in issue on direct examination, the State had a statutory right to conduct cross-examination over those areas as if appellant were “any other witness.” OCGA § 24-9-20. Cross-examination is a legitimate means of obtaining evidence by asking leading questions and seeking to secure admissions in evidence thereto from the person being examined. As hereinafter discussed, the record supports a finding that the State posed its question in good faith, and that the question was posed for the legitimate purposes of impeachment. In fact, we note that in response to the questions posed, appellant ultimately admitted that he had been informed by the police that they had found marijuana in the car. We do not construe Williams as prohibiting the use of cross-examination in a good faith attempt to impeach an appellant who on direct examination has voluntarily given testimony obviously calculated to impress the jury as to certain traits of his character. Appellant, having chosen a certain trial strategy and having engaged in certain calculated trial tactics in support thereof during direct examination, cannot complain when the State exercises its statutory right to a thorough and sifting cross-examination. OCGA § 24-9-64. Moreover, the construction of Williams urged by the dissent would not facilitate a search for the truth. OCGA § 24-1-2.

The dissent implies that the prosecutor acted in bad faith in posing the contested question on cross-examination because there was no evidentiary basis for the prosecutorial query at issue. Such a conclusion is speculative at best.

In State v. Clark, 258 Ga. 464 (369 SE2d 900), the Supreme Court held that “[a] district attorney must be able to show that the questions posed [on cross-examination] . . . were asked in good faith and based on reliable information that can be supported by admissible evidence.” (Emphasis supplied.) The record before us contains not the slightest shred of evidence that the prosecutor acted in bad faith, that he acted on unreliable information or that his question could not be supported by admissible evidence. It is well-established in this state that public officials, and this certainly includes assistant district attorneys, perform their duties lawfully, and in good faith. Pope v. U. S. Fidelity &c. Co., 200 Ga. 69, 74 (35 SE2d 899); Hudson v. State, 185 Ga. App. 508 (364 SE2d 635). In view of this presumption and the actual state of the record, the requirements of State v. Clark, supra, have been met. Further, we decline to interpret State v. Clark, supra, as requiring a prosecutor sua sponte to produce evidence that the questions he posed were done in good faith. Such an interpretation would spawn a presumption of bad faith contrary to the rule announced in Pope, supra. Rather, consistent with our modern-American adversarial system of jurisprudence, State v. Clark, supra, is interpreted merely as requiring that the prosecutor “must be able to show,” upon a timely demand that he do so, “that the questions posed . . . were asked in good faith and based on reliable information.” No such timely demand exists in this record.

Moreover, Clark v. State, 186 Ga. App. 106 (6) (366 SE2d 361) is factually distinguishable. In Clark v. State, supra at 110, “the district attorney admitted he did not have certified copies of appellant’s record or witnesses to testify concerning these acts, and stated that his questions were based upon information he had gleaned from hearsay reports submitted by his office investigator.” (Emphasis supplied.) No such admissions were made in this case. Moreover, Police Officer Nuckles testified that he had inventoried the interior of the vehicle appellant was driving. On appeal we will construe the evidence most strongly to support the verdict. Lance v. State, 191 Ga. App. 701 (2) (382 SE2d 726); Watts v. State, 186 Ga. App. 358 (1) (366 SE2d 849). It may reasonably be inferred from this testimony of record that Police Officer Nuckles was the officer who found the marijuana during the inventory of the interior of the vehicle, and obviously he was available to testify in court. Moreover, the record affirmatively reflects the following admission in judicio by appellant’s defense counsel: “As I understand the evidence, there was a small amount of marijuana in the glove compartment or under the seat, I am not sure which, in the vehicle when it was inventoried.” (Emphasis supplied.) Compare Modern Homes Constr. Co. v. Mack, 219 Ga. 715 (135 SE2d 386); John H. Smith, Inc. v. Teveit, 175 Ga. App. 565, 567 (1) (a) (333 SE2d 856); Boardman v. Ga. R. Bank &c. Co., 127 Ga. App. 63 (3) (192 SE2d 390); Johnson v. Standard Oil Co., 125 Ga. App. 486, 487 (188 SE2d 174); Chapman v. State, 90 Ga. App. 564 (1) (83 SE2d 572); see Green, Ga. Law of Evid. (2d ed.), Admissions, § 238, note 24 and accompanying text. Accordingly, we conclude that no error in fact occurred, Williams, supra; Brown, supra, and that the trial court did not manifestly abuse its discretion in overruling the objections, in denying the mistrial motion, and by admitting the evidence in question. See generally Gully v. Glover, 190 Ga. App. 238 (4) (378 SE2d 411); Santone v. State, 187 Ga. App. 789, 792 (371 SE2d 428); Whisnant v. State, 178 Ga. App. 742, 743 (344 SE2d 536).

It is further noted that following the denial of the objections and the motions'for mistrial, no request for a limiting or other cautionary instruction was made. “A motion for a mistrial is not per se the equivalent of a specific request for a curative instruction to the jury. In fact, the party moving for a mistrial does not normally seek or want a cautionary instruction. If following a denial of a mistrial motion a party wishes the jury to be so instructed, it is in their best interest specifically to request so.” Oller v. State, 187 Ga. App. 818 (4) (371 SE2d 455); see Brown v. State, 190 Ga. App. 324 (6) (378 SE2d 908). Appellant having failed to timely move for a curative instruction waived his right of relief for error on this issue. Compare Carr v. State, 259 Ga. 318 (2) (380 SE2d 700).

Furthermore, if evidence is duly admissible under any legitimate evidentiary theory, it should be admitted, although it does not qualify for admission for any other purpose. Boatright v. State, supra; Pugh v. State, supra. And, “ ‘(a) correct decision of a trial court will not be reversed, regardless of the reasons given therefor.’ ” Ely v. State, supra at (4); accord Tony v. Pollard, 248 Ga. 86 (1) (281 SE2d 557).

3. Assuming, arguendo, error, even of constitutional magnitude, had occurred by the questioning of appellant concerning the existence of marijuana in the car, we would find such error harmless beyond a reasonable doubt in light of the overwhelming evidence of appellant’s guilt. Palmer v. State, 186 Ga. App. 892 (3) (369 SE2d 38); LaRue v. State, 137 Ga. App. 762 (2) (224 SE2d 837), citing Chapman v. California, 386 U. S. 18 (87 SC 824, 17 LE2d 705).

The testimony of the victim, the witness Hillman, and of Police Officers Nuckles, Williams, and Dukes overwhelmingly proves beyond any reasonable doubt appellant’s guilt. Justice is not served by reversing criminal convictions when error is harmless — an accused is entitled only to a fair trial, not a perfect one. Accordingly, consistent with well-established judicial precedent, we find no grounds existing which would warrant the reversal of appellant’s conviction.

Judgment affirmed.

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

Benham, Judge,

dissenting.

I respectfully dissent from the majority’s conclusion that the portion of the State’s cross-examination of appellant called into question was proper impeachment of appellant’s earlier testimony.

1. During the State’s cross-examination of appellant, a former officer at a correctional institution, he admitted he considered himself a “peace officer” and agreed with the assistant district attorney’s query that he “followed] the law.” The prosecutor then inquired: “Why then on April 23 did the police find dope in your car?” which prompted an objection from appellant’s counsel that appellant’s character was being impugned. The trial court overruled the objection, apparently believing that the discovery of marijuana in the car appellant was driving at the time of his arrest was admissible as part of the circumstances of appellant’s arrest.

The majority holds that the State’s cross-examination was valid impeachment of appellant’s statement that he followed the law. The Georgia Supreme Court discussed the issue of impeachment of a criminal defendant’s testimony in Williams v. State, 257 Ga. 761, 763 (363 SE2d 535) (1988). “Upon the making of [the] assertion [that he was a law-abiding, certified peace officer], he became subject to impeachment as to its veracity. ‘If a defendant testifies, he may be cross-examined by the prosecution like any other witness.’ [Cit.] That impeachment may proceed in the following manner: (1) If the defendant in fact [was not a law-abiding, certified peace officer], then evidence establishing such a fact would be admissible for the purpose of impeaching his credibility; and (2) If he had been convicted of such a crime, then a certified copy of such conviction would be admissible . . . to establish the falsity of the assertion.” (Emphasis supplied.) In the case at bar, the State did not offer evidence that appellant was not law-abiding, and the assistant district attorney’s question itself did not qualify as testimony or evidence. See Jones v. State, 116 Ga. App. 624 (158 SE2d 301) (1967). It is undisputed that the State did not attempt to impeach appellant by proffering a certified copy of a conviction. Thus, the prosecutorial query did not qualify as impeachment of appellant’s testimony that he was a law-abiding, certified peace officer.

Focusing on the testimony of the officer who stated that he “inventoried” the interior of the vehicle appellant was driving at the time of his arrest, the majority theorizes that “[i]t may reasonably be inferred” (p. 827) that the officer found marijuana in appellant’s car and was available to so testify. The fact of the matter is that the officer did not testify that he found marijuana in appellant’s vehicle. Thus, the officer’s testimony does not provide an evidentiary basis for the prosecutorial query at issue.

The majority also relies on the “admission” by appellant’s trial attorney that a small amount of marijuana was found in appellant’s car when it was inventoried. That remark was made outside the presence of the jury in the discussion which followed the objection to the State’s cross-examination. It certainly cannot serve as evidence upon which the prosecutorial query at issue might be based since “statements of the attorneys (are) not evidence. . . .” Goodman v. State, 255 Ga. 226 (3) (336 SE2d 757) (1985). See also Combined Contractors v. Welch, 160 Ga. App. 790 (2) (288 SE2d 229) (1982); Jones v. State, 116 Ga. App. 624, supra.

In light of the above, I cannot agree with the majority that the State’s unsubstantiated inquiry about marijuana allegedly found in appellant’s car constituted valid impeachment of appellant’s testimony that he was a law-abiding man. Since I believe the majority’s conclusion to be incorrect, ! will address the additional grounds for admission offered by the State.

2. The State maintains that its cross-examination of appellant was proper because appellant had placed his character in issue by calling witnesses who testified as to his good character. Appellant did place his character in issue by calling witnesses who testified to his good reputation in the community. Fuller v. State, 178 Ga. App. 725 (344 SE2d 698) (1986). “[Wjhere the defendant offers testimony of a witness as to his general good reputation in the community, the State may prove the defendant’s general bad reputation in the community, and may additionally offer evidence that the defendant has been convicted of prior offenses under the authority of OCGA § 24-9-20 (b). . . . [However,] [t]he rule remains that the State may not prove the defendant’s general bad character by specific acts of bad conduct.” Jones v. State, 257 Ga. 753, 758 (363 SE2d 529) (1988). Thus, in the case at bar, the State could have rebutted appellant’s evidence of his general good reputation in the community by offering evidence of appellant’s general bad reputation in the community or by offering evidence of prior convictions of appellant. However, neither method was followed. Instead, under the State’s theory, the State responded to appellant’s good character evidence by using an unsubstantiated charge of possession of marijuana, a specific bad act (not a conviction), to prove appellant’s bad character. Use of a specific bad act to prove general bad character is a method specifically prohibited by Footnote 8 in Jones v. State, 257 Ga. 753, supra. Thus, the assistant district attorney’s query was not appropriate as proper rebuttal evidence under OCGA § 24-9-20 (b) to appellant’s evidence of his general good character.

3. The State also argues that the prosecutorial query was admissible as part of the circumstances connected with appellant’s arrest. I wholeheartedly agree that the circumstances connected with an arrest is proper evidence and admissible as part of the res gestae of an arrest, even though it may incidentally place a defendant’s character in issue. Fudge v. State, 184 Ga. App. 590 (2) (362 SE2d 147) (1987); Wolke v. State, 181 Ga. App. 635 (2) (353 SE2d 827) (1987). See also Bishop v. State, 155 Ga. App. 611 (2c) (271 SE2d 743) (1980). However, it is the testimony of a witness who has firsthand knowledge of the circumstances, i.e., the arresting officer, the searching officer, an eyewitness, etc., that is admissible. See Preston v. State, 257 Ga. 42 (7) (354 SE2d 135) (1987) (testimony of the arresting officer); Cooper v. State, 188 Ga. App. 629 (1) (373 SE2d 796) (1988) (testimony of the undercover officer/purchaser); Fudge v. State, supra (testimony of the arresting officer); Wolke v. State, supra (testimony of the victim). In the case at bar, there is no testimony concerning the search of appellant’s vehicle and the purported discovery of contraband. The assistant district attorney’s question was not testimony or evidence (see Jones v. State, 116 Ga. App. 624, supra); therefore, he could not have been permitted to introduce in this manner the highly prejudicial evidence that appellant was involved in another crime at the time of his arrest.

Decided December 5, 1989.

Michael H. Lane, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Doris L. Downs, William L. Hawthorne III, Assistant District Attorneys, for appellee.

Inasmuch as the State introduced the subject of appellant’s possible bad character in an impermissible manner and attempted to impeach appellant in an impermissible way, I believe the trial court erred in overruling appellant’s objection. Since “[i]t is essential that the jury be not improperly influenced or prejudiced against persons on trial” (Anderson v. State, 206 Ga. 527 (2) (57 SE2d 563) (1950)), I would reverse the judgment of conviction entered against appellant and remand the case for a new trial. See Dukes v. State, 256 Ga. 671 (352 SE2d 561) (1987).

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