author: Carley, Chief Judge.

text:
    A89A0864.
    CARDEN v. ARROW COMPANY.
    (388 SE2d 348)
   Carley, Chief Judge.

After appellant-employee complained of a rash, hair loss and nervousness, appellee-employer initiated the payment of workers’ compensation benefits. A physician’s attempt to conduct a medical test to determine the cause of appellant’s condition was unsuccessful. An attempt to conduct a second medical test was thwarted. A third test succeeded and formed the basis of the physician’s medical opinion that appellant’s condition was not work-related. By this time, however, five months had passed since the initiation of benefits.

Appellee filed its notice to controvert based on “newly discovered evidence.” See OCGA § 34-9-221 (h). The administrative law judge (ALJ) found that the result of the third medical test was “newly discovered evidence” which authorized the suspension of benefits. The Full Board adopted the ALJ’s findings of fact and conclusions of law. The superior court affirmed. Appellant brings this appeal pursuant to this court’s grant of her application for discretionary appeal.

Decided October 18, 1989

Rehearing denied November 15, 1989

Murphy, Murphy & Garner, Stephen E. Garner, for appellant.

Wilson, Strickland & Benson, Warner R. Wilson, Jr., L. Lou Allen, for appellee.

1. Appellant urges that appellee failed to show that the “newly discovered evidence” was not merely impeaching. The record shows, however, that, prior to completion of the third test, the physician had given no opinion as to whether appellant’s condition was work-related. Since causation was unclear, appellee was apparently motivated to commence the payment of benefits by the possibility that it might incur penalties under the statutory scheme if it did not. The physician’s subsequent clear opinion as to causation was not inconsistent with and impeaching of his previous lack of any opinion. See Georgia Power Co. v. Pinson, 167 Ga. App. 90, 92 (1) (305 SE2d 887) (1983).

2. Appellant also urges that the “newly discovered evidence” could have been obtained sooner had appellee acted with due diligence. However, the Full Board found that appellee had acted with due diligence and this finding was authorized by the evidence. See generally Georgia Power Co. v. Pinson, supra at 93 (1); Carpet Transport v. Pittman, 187 Ga. App. 463, 468 (2) (370 SE2d 651) (1988).

Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    A89A1157.
    ANDERSON v. THE STATE.
    (388 SE2d 351)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of aggravated assault and driving under the influence. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. The State has moved to dismiss this appeal as premature, contending that there are issues still pending before the trial court.

Appellant filed a timely notice of appeal from the judgments of conviction and sentences. Thereafter, he did not also make a timely motion for new trial. Compare Sharif v. Tidwell Homes, 252 Ga. 205 (312 SE2d 114) (1984). Instead, more than thirty days after the judgments of conviction and sentences had been entered on the jury’s verdicts, appellant filed what was, in effect, an extraordinary motion for new trial. The filing of such a motion did not serve to suspend the divestiture of the trial court’s jurisdiction that otherwise resulted from the timely filing of appellant’s notice of appeal. Compare Sharif v. Tidwell Homes, supra. Accordingly, this court has jurisdiction over appellant’s appeal from the judgments of conviction and sentences, whereas any future ruling by the trial court on appellant’s extraordinary motion for new trial may subsequently be appealable in its own right. See OCGA § 5-6-35 (a) (7). The motion to dismiss is hereby denied.

2. In his sole enumeration, appellant urges that the trial court erred in overruling his motion for mistrial. The motion was predicated upon the alleged misconduct of the prosecutor in deliberately and knowingly eliciting false testimony from the State’s key witness and in allowing this false testimony to go to the jury uncorrected.

The record does not reflect any prosecutorial misconduct and appellant’s reliance on Giglio v. United States, 405 U. S. 150 (92 SC 763, 31 LE2d 104) (1972) is, therefore, misplaced. The record shows quite clearly that the State and appellant were both operating under a mutual mistake of fact, which mistake presumably could have been avoided had appellant conducted a diligent pre-trial investigation. What appellant asserts, in effect, is that, when the witness refused to impeach himself out of his own mouth, it was incumbent upon the State to intercede on appellant’s behalf. However, it was appellant’s responsibility to present his own case and to be prepared to impeach the State’s witnesses. The record shows that, when the State did discover that its witness may not have been totally truthful, it made a full disclosure of that fact to appellant. This certainly does not show that appellant’s “conviction was based on the [S]tate’s knowing use of perjured testimony. ...” (Emphasis in original.) Arnold v. State, 163 Ga. App. 10, 11 (1b) (293 SE2d 501) (1982).

Giglio v. United States, supra, and its progeny are further distinguishable in that the “[S]tate’s evidence included the incriminating oral statement made by [appellant] on the [morning] of the arrest [that he had shot the victim because the victim was mistreating appellant’s son. . . .] Thus, the jury’s verdict of guilty here was supported by evidence other than testimony which was objected to.” Echols v. State, 231 Ga. 633, 636 (1) (203 SE2d 165) (1974). Moreover, the witness has never been convicted of perjury. See OCGA § 17-1-4. “[T]here has been no finding that any perjury was committed, no conviction for perjury and the evidence with reference to perjury did not involve any material statement by the witness as to issues of fact concerning [appellant’s] guilt or innocence.” Arnold v. State, supra at 12 (1c). The trial court did not err in refusing to grant the motion for mistrial.

Decided October 20, 1989

Rehearing denied November 15, 1989.

Herman A. Watson III, Robert E. Andrews, for appellant.

C. Andrew Fuller, District Attorney, for appellee.

Judgments affirmed.

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


text:
    A89A1311.
    CAMPBELL v. HYATT REGENCY et al.
    (388 SE2d 341)
   Carley, Chief Judge.

Appellant-plaintiff filed a complaint against appellee-defendants, alleging claims for false arrest and false imprisonment. Appellant appeals from the grant of appellees’ motion for summary judgment.

1. Contending that he was not given an opportunity to conduct discovery, appellant enumerates the grant of appellees’ motion for summary judgment as error.

“ Tf the non-existence of any genuine issue of material fact is established by such credible evidence that on the facts and the law the movant is entitled to judgment as a matter of law, the motion should be granted, unless the opposing party shows good reason why he is at the time of the hearing unable to present facts in opposition to the motion. . . .’ [Cit.]” Raven v. Dodd’s Auto &c. Svc., 117 Ga. App. 416, 422 (3) (160 SE2d 633) (1968). See also OCGA § 9-11-56 (f). Appellant showed no good reason why he was unable to oppose appellees’ motion. The record shows that he failed to initiate any discovery “within 6 months after the filing of the answer” and failed to obtain any court-ordered extension of time to engage in discovery. Uniform Superior Court Rule 5. Under these circumstances, the trial court clearly was warranted in addressing the merits of appellees’ motion for summary judgment.

2. In an action for false arrest, “it is essential to show a termination of the prosecution in favor of the complaining party. [Cits.]” Hatcher v. Moree, 133 Ga. App. 14 (1) (209 SE2d 708) (1974). See also Laster v. Star Rental, 181 Ga. App. 609 (1) (353 SE2d 37) (1987). The undisputed evidence of record shows that the charges against appellant are still pending. “As there has been no requisite termination of the prior criminal proceeding, the trial court properly granted summary judgment for [appellees on the false arrest count].” McCord v. Jones, 168 Ga. App. 891, 893 (311 SE2d 209) (1983).

Decided October 17, 1989

Rehearing denied November 15, 1989

Keith A. Campbell, pro se.

Troutman, Sanders, Lockerman & Ashmore, Alan P. Shor, Richard L. Ford, Daniel S. Reinhardt, for appellees.

3. An action for false imprisonment “must be brought within two years of its accrual, OCGA § 9-3-33, which is from the release from imprisonment. [Cit.]” Reese v. Clayton County, 185 Ga. App. 207, 208 (363 SE2d 618) (1987). Appellant’s complaint was filed more than two years after his release from the imprisonment that he alleges to have been actionable. Thus, appellant’s action for false imprisonment is barred by the statute of limitation and the trial court correctly granted summary judgment in favor of appellees as to that claim.

Judgment affirmed.

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


author: Benham, Judge.

text:
    A89A1384.
    HOGAN v. THE STATE.
    (388 SE2d 532)
   Benham, Judge.

In this appeal from his conviction for trafficking in cocaine, appellant complains that there was a fatal variance between the indictment and the evidence, that the trial court erred in charging the jury on trafficking, and that the trial court erred in denying appellant’s motion for discharge based on the speedy trial provisions of OCGA § 17-7-170.

1. Appellant’s first two enumerations of error concern the conflict between the indictment’s allegation that appellant possessed more than 28 grams of cocaine and the proof that he actually possessed 24 grams. The State concedes that it only proved possession of 24 grams of a mixture containing cocaine, but asserts that since possession of cocaine is an offense included within trafficking (see Dalton v. State, 249 Ga. 720 (1) (292 SE2d 834) (1982)), the case should be remanded to the trial court for sentencing for that offense. We agree. “Since the evidence was adequate to support appellant’s conviction [for possession of cocaine], the case is remanded with direction that a conviction and sentence be entered for that offense.” Choate v. State, 158 Ga. App. 8 (279 SE2d 459) (1981).

2. Appellant’s final enumeration of error is directed at the trial court’s denial of his motion for acquittal for failure to try him in accordance with his demand for trial pursuant to OCGA § 17-7-170. However, at the hearing on the motion, trial counsel (different from appellate counsel) admitted that he had mistakenly represented to the court during the second term that no demand had been filed on appellant’s behalf. A demand for trial may be waived by counsel (Parker v. State, 135 Ga. App. 620 (4) (218 SE2d 324) (1975)), and we find counsel’s assurance to the court that no demand was pending to be such an act. There was, therefore, no error in the denial of appellant’s motion for acquittal.

Decided November 1, 1989

Rehearing denied November 15, 1989.

Robert H. Alexander III, for appellant.

Lewis R. Slaton, District Attorney, Nancy A. Grace, Joseph J. Drolet, John M. Turner, Assistant District Attorneys, for appellee.

Judgment vacated and case remanded with direction.

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


text:
    A89A1455, A89A1456.
    BEALL v. F. H. H. CONSTRUCTION, INC.; and vice versa.
    (388 SE2d 342)
   Carley, Chief Judge.

Pursuant to an oral contract, F. H. H. Construction, Inc. (FHHCI) agreed to construct a building on property owned by Charles P. Beall. Before completion of the building, however, Beall terminated the contract and ceased to make payments to FHHCI. FHHCI filed a materialman’s lien against Beall’s property.

Subsequently, Beall filed suit against FHHCI, seeking to recover alleged overpayments, damages for slander of title, and the removal of the lien on his property. FHHCI counterclaimed, seeking damages for breach of contract, attorney’s fees for bad faith, and foreclosure of its lien against Beall’s property.

The case was tried before a jury. At the close of the evidence, Beall moved for a directed verdict on FHHCFs counterclaim. The trial court granted a directed verdict as to FHHCFs counterclaim for attorney’s fees but denied Beall’s motion in all other respects. As to Beall’s main claim, the jury found in favor of FHHCI. As to FHHCFs counterclaim for breach of contract and lien foreclosure, the jury also found in favor of FHHCI. In Case No. A89A1455, Beall appeals from the judgment entered on the jury’s verdict and, in Case No. A89A1456, FHHCI cross-appeals.

Case No. A89A1455

1. The denial of Beall’s motion for a directed verdict on FHHCI’s counterclaim for breach of contract is enumerated as error.

There was a dispute in the evidence as to the terms of the parties’ oral contract and their performance thereunder. This dispute was material to Beall’s liability for breach of contract and to FHHCI’s entitlement to recover damages for any such breach. Accordingly, it was not error to deny Beall’s motion for a directed verdict. See Spoon v. Herndon, 167 Ga. App. 794, 795 (1) (307 SE2d 693) (1983).

2. Beall urges that the amount of damages that the jury actually awarded on FHHCI’s counterclaim for breach of contract is not authorized under the evidence.

Even when the evidence as to damages is construed most favorably for FHHCI, the expenses that FHHCI incurred in performance, plus the profit that it lost as the result of Beall’s non-performance, less the payments that were admittedly made by Beall results in a figure that is several thousand dollars less than the jury’s award. Thus, the verdict that was actually returned by the jury is in excess of the recovery that would otherwise be authorized under the most favorable construction of the evidence. Accordingly, the amount of the verdict is not within the range of the relevant evidence and the judgment that was entered on that verdict must be reversed. See Redman Dev. Corp. v. West, 127 Ga. App. 265, 267 (3) (193 SE2d 213) (1972), overruled on other grounds, Crankshaw v. Stanley Homes, 131 Ga. App. 840 (207 SE2d 241) (1974). Compare C&S Nat. Bank v. Haskins, 254 Ga. 131, 136 (2) (327 SE2d 192) (1985).

3. The denial of Beall’s motion for a directed verdict on FHHCI’s counterclaim for foreclosure of its lien is enumerated as error.

There is no statutory requirement that FHHCI file notice of its in rem foreclosure action against Beall’s property. See Hancor, Inc. v. Fleming Farms, 155 Ga. App. 579 (271 SE2d 712) (1980). There is, however, a statutory requirement that FHHCI file notice of its in personam action to recover against Beall on the underlying indebtedness. See Frank Woods Constr. Co. v. Randi, 177 Ga. App. 438 (1) (339 SE2d 406) (1986). The notice requirement of OCGA § 44-14-361.1 (a) (3) applies “whether the ‘recovery of the amount of [the material-man’s] claim’ be properly brought against the contractor or the owner, whichever one is contractually responsible for the debt. [Cits.]” Logan Paving Co. v. Liles Constr. Co., 141 Ga. App. 81, 83 (3) (232 SE2d 575) (1977).

Thus, FHHCI was not required to file notice of its counterclaim for foreclosure of its lien against Beall’s property. FHHCI was, however, required to file notice of its counterclaim against Beall on the underlying indebtedness. It is undisputed that FHHCI did not file the requisite notice. It follows that the trial court erred in denying Beall’s motion for a directed verdict as to FHHCI’s counterclaim for foreclosure of its lien against the property. “Filing notice is a prerequisite to enforcement of a lien. [Cits.]” Frank Woods Constr. Co. v. Randi, supra at 438 (1).

Case No. A89A1456

4. The trial court’s grant of Beall’s motion for a directed verdict on FHHCI’s counterclaim for attorney’s fees is enumerated as error.

The trial court concluded that FHHCI was not entitled to recovery of attorney’s fees because it was not pursuing an “independent claim” against Beall. This was erroneous. FHHCI’s counterclaim against Beall for breach of contract was an “independent claim” which would support an award of attorney’s fees. “The underlying policy of [OCGA § 13-6-11] barring a defendant from transforming a plaintiff’s case into that defendant’s damage suit for having been sued in no manner relates to cases wherein the defendant has asserted a viable, independent claim against the plaintiff. A rigid rule preventing any defendant from recovering litigation expenses works particular inequity when a defendant (as [FHHCI] herein) is required by law to file a compulsory counterclaim or be deemed to have waived the claim altogether. It would indeed be paradoxical to require a defendant to assert a given bad faith claim per [OCGA § 9-11-13 (a)] while at the same time withholding from that defendant any possible recovery of litigation expenses per [OCGA § 13-6-11]. . . . [W]hen a defendant asserts a claim for relief independent of a claim for litigation expenses incurred in defending against a plaintiff’s case-in-chief, [OCGA § 13-6-11] does not automatically operate to bar any recovery by the defendant of litigation expenses incurred in prosecuting such an independent claim. . . .” Ballenger Corp. v. Dresco Mechanical Contractors, 156 Ga. App. 425, 432 (III A1) (274 SE2d 786) (1980).

“It is clear that [FHHCI] asserted by way of counterclaim a claim for relief ‘entirely independent of any simple assertion that [Be-all] acted in bad faith in filing the within suit. . . .’ [Cit.]” Spoon v. Herndon, supra at 796 (2). This is not a “case where the recovery would amount to a successful counterclaim against [Beall] merely for filing suit. [Cit.]” Ravenwood Church v. Starbright, Inc., 168 Ga. App. 870, 873 (2) (310 SE2d 582) (1983). FHHCI “was, in effect, a plaintiff in the independent counterclaim for [Beall’s breach of contract], and, therefore, could assert a claim for attorney[’s] fees incurred in prosecuting its independent claim. [Cits.]” Glenn v. Fourteen West Realty, 169 Ga. App. 549, 551 (2) (313 SE2d 730) (1984). Compare Mayfield v. Ideal Enterprises, 157 Ga. App. 266, 268 (2) (277 SE2d 62) (1981) (wherein attorney’s fees were not recoverable because the jury made no award on the defendant’s separate counterclaim.)

Decided October 17, 1989

Rehearing denied November 15, 1989.

Wain, Carmichael & Miningham, Wayne F. Carmichael, Neely & Player, Michael R. Johnson, for appellant.

5. Beall urges that the grant of his motion for a directed verdict was nevertheless correct because the evidence would not authorize FHHCI to recover attorney’s fees. However, Beall’s contention that FHHCI could not recover attorney’s fees simply because the evidence disclosed that “a bona fide controversy existed between the parties is without merit where, as here, attorney[’s] fees are sought on the ground that a party has acted in bad faith. [Cit.]” Formica Corp. v. Rouse, 176 Ga. App. 548, 549 (3) (336 SE2d 383) (1985). See also Powell v. Watson, 190 Ga. App. 375 (378 SE2d 867) (1989). Accordingly, regardless of the existence of a bona fide controversy, if there was any evidence of Beall’s bad faith the trial court erred in directing a verdict on FHHCI’s claim for attorney’s fees.

“Bad faith authorizing an award of attorney[’s] fees in a contract action must relate to the conduct of entering the contract or to the transaction and dealings out of which the cause of action arose, which includes not only the negotiations and formulation of the contract but also performance of the contractual provisions. [Cit.]” Hayes Constr. Co. v. Thompson, 184 Ga. App. 482, 484 (2) (361 SE2d 865) (1987). Construing the evidence most favorably for FHHCI, Beall was responsible for the delays in construction and the cost overruns. However, when Beall initially terminated the contract based ostensibly upon the delays and cost overruns, he informed FHHCI that he would never pay for the work on the project and that any outstanding debts for the material and labor supplied were FHHCI’s and not his problem. This evidence would authorize a finding of something “other than a good-faith belief on the part of [Beall] that [FHHCI] was asking him to pay more than he was contractually obligated to pay.” Mallory v. Daniel Lumber Co., Inc., 191 Ga. App. 234, 236 (2) (381 SE2d 406) (1989). “Since there was some evidence to support [FHHCI’s] contention on the issue of bad faith, the trial court [erred] in [granting] [Beall’s] motion for directed verdict on the issue of attorney [’s] fees. [Cit.]” St. Holmes v. St. Holmes, 169 Ga. App. 283, 285 (2) (312 SE2d 370) (1983) (wherein attorney’s fees for bad faith were authorized by evidence that the defendant had refused to pay a debt simply because the plaintiff “didn’t deserve it”).

Judgment reversed in Case No. A89A1455. Judgment reversed in Case No. A89A1456.

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

Grizzard, Simons, Martin & Wills, Warren W. Wills, Jr., Dale C. Ray, Jr., for appellee.


text:
    A89A1554.
    REESE v. LYONS.
    (388 SE2d 369)
   Carley, Chief Judge.

Seeking to recover for the death of her son, appellant-plaintiff brought this wrongful death action against appellee-defendant. The case was tried before a jury. The evidence adduced at trial showed that appellant’s deceased and appellee had been drinking together over a period of several hours. During that period, they drove from Hogansville to a nightclub in Atlanta. On the return trip, appellee was driving. When he apparently fell asleep at the wheel, the car left the roadway and struck a tree. Appellee, who was wearing a seat belt, survived, but appellant’s deceased, who was not wearing a seat belt, died. The jury returned a verdict in favor of appellee. Appellant appeals from the judgment that was entered by the trial court on that verdict.

1. The trial court did not err in denying appellant’s motion for a directed verdict on the issue of appellee’s liability. See generally Powell v. Berry, 145 Ga. 696, 699 (2) (89 SE 753) (1916).

2. Likewise, the trial court did not err in giving a charge on comparative negligence. Powell v. Berry, supra at 699 (2).

3. Assuming, without deciding, that it was error to give a charge on legal accident, that error was self-induced by appellant’s own written request to give the charge.

4. The trial court charged the jury that the failure of appellant’s deceased to wear his seat belt was a factor which it would be entitled to consider in determining “whether the damages, for which [appellee] may otherwise be liable, should be reduced, should [it] find [appellee] liable in any amount.” The giving of this charge is enumerated as error.

The issue of damages having been rendered moot by the verdict in favor of appellee, we need not decide whether the giving of the charge was reversible error. See Wendlandt v. Shepherd Constr. Co., 178 Ga. App. 153, 155 (1) (342 SE2d 352) (1986).

5. The trial court did not err in excluding from evidence appellee’s nolo contendere plea to a citation for driving on the wrong side of the road. Windsor Forest, Inc. v. Rocker, 121 Ga. App. 773 (2) (175 SE2d 65) (1970). Likewise, the trial court did not err in excluding from evidence appellee’s driving record. Whidby v. Columbine Carrier, 182 Ga. App. 638 (1) (356 SE2d 709) (1987).

6. The trial court’s exclusion from evidence of the police report is enumerated as error. The record shows that the officer who prepared and filed the report was a witness at the trial of the case. Insofar as the officer’s written report contained admissible matter, it was merely cumulative of his testimony. “Where the officer who prepared and filed the report is present, it can add little to his testimony. . . .” Calhoun v. Chappell, 117 Ga. App. 865, 866 (2b) (162 SE2d 300) (1968). Accordingly, “even assuming error, it would be harmless inasmuch as the [police report] was merely cumulative of other evidence properly before the jury. [Cits.]” Milstead v. State, 155 Ga. App. 407, 408 (2) (270 SE2d 820) (1980).

Decided October 31, 1989

Rehearing denied November 15, 1989

James R. Jester, for appellant.

Beck, Owen & Murray, Samuel A. Murray, Lane, O’Brien & Coburn, Stephen J. Caswell, for appellee.

7. Appellant’s remaining enumeration of error has been considered and is found to be without merit.

Judgment affirmed.

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


author: Birdsong, Judge.

text:
    A89A1084.
    KELLY v. THE STATE.
    (388 SE2d 377)
   Birdsong, Judge.

Appellant John Thomas Kelly was indicted for trafficking in cocaine. A bench trial and hearing on his motion to suppress were held concurrently; the trial court denied the motion and found appellant guilty, from which he appeals. Held:

1. Appellant contends that there was insufficient evidence to authorize the finding of guilt. The State showed that on December 28, 1987, two agents of the Chatham County Police Metro Drug Squad boarded a bus about to leave for Cleveland, Ohio, on a routine search. The passengers were advised that the officers were looking for contraband, asked to cooperate, and informed that they had the right to refuse a search of their luggage or persons. Appellant was seated in seat 13, next to the window, four rows down from the driver. When asked if he had any luggage, appellant replied that he had one bag which was in the overhead rack immediately above him. The agents later found a blue suitcase in the rack above seat 9, which was directly in front of seat 13. Appellant was asked to look at the bag and say whether it was his, but he would neither admit nor deny ownership. The bag had an identification tag on it showing the name “John” and an illegible last name, with Norwalk, Ohio, as the address. When asked his name, appellant replied, “John Kelly.” No other passenger having claimed the bag, appellant was advised by an agent that it would be taken off the bus to be searched by the drug dog, and that appellant was welcome to come along if he wanted to. Appellant was not under arrest at that time.

The two detectives and appellant left the bus. Before searching the bag, appellant was again asked if it were his, “and he said, ‘No, the bag is not mine.’ ” Search of the bag revealed a large, clear zip-lock plastic bag containing white powder, which was tested by the GBI’s Division of Forensic Sciences and analyzed as 220.6 grams of cocaine, 90 percent pure. The plastic bag has been rolled up and placed in a felt liquor bag, and “shoved up into the toe of’ a “green, size 9D boot.” The officers also removed the identification tag from the bag and, when it was turned over, found the names “John and Della Kelly,” with the address listed as 52 Lake Avenue, Norwalk, Ohio. Appellant was then arrested and subsequently indicted for violation of OCGA § 16-13-31 (a). We find this evidence to be sufficient for a rational trier of fact to conclude that appellant was guilty of the crime as charged. Jackson v. Virginis, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Appellant’s enumerations of error 1, 2, 5 and 7 are without merit.

2. Appellant in essence asserts in enumerations of error 3 and 4 that the trial court erred in overruling his motion to dismiss the charge on the ground that the indictment alleged a crime under the statute as amended, which did not become effective until March 28, 1988, and thus was not in force on the day the crime was committed. The 1988 amendment deleted the requirement that actual possession of contraband be shown. However, the transcript of the sentencing proceedings clearly illustrates that the trial judge was aware that actual possession had to be proved by the State, that he was concerned about this issue from the beginning of the trial, but that after consideration of the evidence, he found appellant guilty through actual possession. Thus, the current law was followed and there was no ex post facto application of the statute as amended.

3. Appellant’s remaining enumeration of error, enumeration no. 6, challenges the evidence proving he was the perpetrator of the crime. While there was no in-court testimony identifying appellant as the person arrested at the bus station, there was certainly no evidence even remotely suggesting that he was not. When the case was called against John Thomas Kelly, defense counsel announced ready. The State showed that the person sitting in seat 13 of the bus gave his name as John Kelly, left the bus voluntarily with the detectives and accompanied them to the area where the bag, identified as belonging to John and Della Kelly, was searched and the cocaine was found. At trial, one of the detectives responded affirmatively upon being questioned whether this was when “the [defendant, that is, Mr. Kelly, [was] placed under arrest?” Thus, there was some evidence that the defendant on trial was the perpetrator of the crime alleged in the indictment, whereas there was no evidence to the contrary. See also Division 1 above. Appellant has raised no grounds warranting reversal.

Decided November 1, 1989

Rehearing denied November 16, 1989

Paul S. Weiner, for appellant.

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

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


text:
    A89A1331.
    HARPER v. THE STATE.
    (388 SE2d 379)
   Birdsong, Judge.

Cary Harper appeals from his convictions of aggravated battery, use of a firearm in the commission of a felony, and discharge of a firearm near a public roadway. Appellant’s convictions resulted from an incident on June 10, 1988, in which he shot Danny Goforth, the former husband of his then girl friend and now wife, Brenda Goforth Harper. Appellant asserted at trial that the shooting was in self-defense, but he was convicted as charged. He now appeals, contending that the trial court erred by admitting in evidence a statement appellant gave to a police officer at the scene of the crime before he was advised of his Miranda rights. He also contends that the trial court erred by excluding evidence of prior threats and violent acts allegedly made by the victim against Brenda Goforth. Held:

1. Appellant contends that although he was not under arrest or in custody when the police officer questioned him, he should be considered in custody so that a Miranda warning was required before he was questioned. We disagree.

The evidence presented at the Jackson-Denno hearing shows that the police officer had been on the scene for approximately 10-15 minutes when he approached appellant, who was standing' near Brenda Goforth, and asked what happened. Appellant responded with a version of the events which he later recanted.

The evidence reveals the police officer questioned appellant where he found him and did not summon appellant to him or otherwise make demands on appellant’s freedom of movement. Further, the'police officer testified that appellant was not a suspect at the time he first spoke to him because the officer knew only that there had been a shooting, and that appellant had been seen in the area with a gun, but he was not aware that appellant had done the shooting. In fact, the officer testified that at the time he did not know who had shot the victim. The officer also testified that appellant was free to walk away. The evidence also shows that the officer did not question appellant after appellant told him that he had shot the victim.

Appellant argues that no reasonable person would conclude that he was really free to go, and that since the police officer testified that he had secured the scene before he questioned appellant, the questioning was not the kind of on-the-scene questioning found acceptable by our Supreme Court in State v. Overby, 249 Ga. 341 (290 SE2d 464); Aldridge v. State, 247 Ga. 142 (274 SE2d 525); and Shy v. State, 234 Ga. 816 (218 SE2d 599). Although the officer in this case testified that he “secured” the area, it is apparent from his entire testimony that in so testifying he meant nothing more than he had taken steps to see that the area was controlled. Secure does not always mean safe. See State v. Overby, supra at 343. His testimony was plainly that he did not know who had done the shooting, or what the circumstances of the shooting were. Under the circumstances, the officer’s question to appellant was authorized under Overby. “Solely for the purpose of determining whether a criminal incident has occurred, or whether the crime has been completed or still is underway, or for the purpose of determining whether the supposed perpetrator still is present and should be placed under police scrutiny or custody, the officers may ask all or some of the assembled citizenry . . . such questions as ‘What happened?’ or ‘What is going on?’ without adversely implicating the Miranda principles. ...” (Emphasis deleted.) Overby, supra at 342. There is no evidence that the officer’s question was designed to do any more than that. This was a general on-the-scene investigation to which Miranda does not apply. Shy v. State, supra at 820. Moreover, even if, as appellant suggests, he was not free to go pending the investigation, this still does not mean that he was in custody so as to trigger the Miranda warning requirements. Daugherty v. State, 182 Ga. App. 730, 731 (356 SE2d 902). “One who is the subject of a general on-the-scene investigation is not in custody. [Cit.]” Glass v. State, 166 Ga. App. 225, 226 (303 SE2d 764).

Under these circumstances, the trial court’s conclusion that appellant was not in custody when he was initially questioned is fully supported by the record. Further, “[u]nless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal.” Berry v. State, 254 Ga. 101, 104 (326 SE2d 748). Accord Clark v. State, 189 Ga. App. 68 (374 SE2d 783). Accordingly, appellant’s first enumeration of error is without merit.

2. Appellant also contends that the trial court erred by excluding testimony from his wife about specific instances of threats or violent acts committed by the victim in this case. He argues that under Milton v. State, 245 Ga. 20, 24 (262 SE2d 789), he should have been permitted to introduce evidence of these acts as they bore on the “ ‘ “reasonableness of [his] apprehension of danger at the time [he shot Goforth].” ’ ” (Emphasis deleted.)

Appellant was not prevented from testifying about the threats that Goforth made, or about other instances in which he or Brenda Harper had confrontations with Goforth. What the trial court excluded was testimony from IJrenda Harper about some specific acts involving only herself, and not the- appellant. In this regard, it is important to note that appellant claimed that he shot Goforth in his defense, not in defense of anyone else, and the record shows that Brenda had departed’bsssas departing the scene when appellant shot Goforth. Consequently; evictesjcfe of specific^threats to third parties or of Goforth’s other actions towa^. third parties, was not relevant to his claim of self-defense.

We note that in certain instances the events which were allegedly excluded were the subject of crim^il- charges which were tried and in which not guilty verdicts wer^ returned for .Goforth; and in others charges were dismissed because of lack of cooperation by the victims. Further, the transcript reflects, as'the trial court noted, that most if not all of the testimony proffered as being excluded by the trial court was actually testified to by Brénda Harper.

We find no error in the trial court’s ruling. Appellant testified fully about Goforth’s prior actions which he claimed bore on his belief that he needed to act in self-defense, and Brenda Harper actually testified about most of these matters as well, despite appellant’s claim that her testimony was excluded. Thus, we do not find that appellant was denied the opportunity to present to the jury the-victim’s actions which related to appellant’s alleged need to act in self-defense. Milton v. State, supra. Additionally, decisions on admission of evidence are within the discretion of the trial court, and we will not interfere unless the trial court has abused its discretion. Palmer v. State, 186 Ga. App. 892, 898-899 (369 SE2d 38). We find no abuse of the trial court’s discretion here. Further, even asstmyng that excluding those few matters was an abuse of discretion, considering the scope of the testimony by appellant and Brenda Harper about Goforth’s actions, we find that the error was harmless “as it is ‘ “highly probable that (any such) error did not contribute to the judgment.” ’ Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).” House v. State, 184 Ga. App. 724, 725 (362 SE2d 429). Compare Gaither v. State, 259 Ga. 200 (2) (378 SE2d 464) and Young v. State, 191 Ga. App. 651, 653 (382 SE2d 642), where error in excluding evidence that is cumulative with other admitted testimony was found to be harmless. Appellant’s second enumeration of error is also without merit.

Decided November 1, 1989

Rehearing denied November 16, 1989

Nelson & Bradley, G. Carey Nelson, Stephen R. Bradley, for appellant.

Darrell E. Wilson, District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


author: Deen, Presiding Judge.

text:
    A89A1756.
    BINNS v. BINNS et al.
    (388 SE2d 385)
   Deen, Presiding Judge.

Luther Binns commenced this action against the appellees on February 25, 1988, seeking damages for injuries sustained in an automobile collision on June 16, 1987. Binns died on April 15, 1988, and his attorney filed a suggestion of death on June 6, 1988. On December 8, 1988, the attorney filed a motion for extension of time for substitution of a party, on the grounds that no executor for Binns’s estate had been appointed. The appellant, Horace Binns, was appointed executor of Luther Binns’s estate on April 3, 1989, and moved for substitution as plaintiff on April 25, 1989.

The appellees had moved for dismissal of the complaint on December 19, 1988, on the grounds that more than 180 days had passed since the suggestion of death was filed, without any motion for substitution of party having been made. The trial court entered an order on May 5, 1989, granting that motion, and this appeal followed. Held:

“[T]he procedure for suggestion of death is for the protection of the prospective respondent to the motion for substitution of parties and is for the purpose of enabling this prospective respondent to place a limitation upon the period of time during which the movant may seek substitution of parties.” Anderson v. Southeastern Capital Corp., 243 Ga. 498, 499 (255 SE2d 12) (1979). OCGA § 9-11-25 (a) (1) provides that a motion for substitution must be filed within 180 days of the suggestion of death. However, this court has concluded that the 180-day limitation of OCGA § 9-11-25 (a) (1) does not commence until the non-party representative of the estate has been served with the suggestion of death. Bledsoe v. Sutton, 174 Ga. App. 248 (329 SE2d 589) (1985). We are unpersuaded by the appellees’ contention that this rule is inapplicable where the plaintiffs attorney, and not the defendants’, filed the suggestion of death. As the plaintiffs estate did not even have a representative until April 3, 1989, the trial court erred in dismissing the complaint.

Decided November 2, 1989

Rehearing denied November 16, 1989

Smith & Polstra, Keith A. McIntyre, for appellant.

Brock & Clay, Marjorie M. Rogers, Greg P. Counts, for appellees.

Judgment reversed.

Birdsong 'and Benham, JJ., concur.


text:
    A89A1913.
    INSURANCE COMPANY OF NORTH AMERICA v. KYLA, INC. et al.
    (388 SE2d 530)
   Deen, Presiding Judge.

Insurance Services of Georgia (ISG) procured liability insurance from Insurance Company of North America (INA) on August 15, 1983, for Kyla, Inc. Approximately one year later, a personal injury lawsuit was filed against Kyla in the amount of $750,000. It was later amended to claim $15,000,000 in damages. INA defended Kyla in the lawsuit, and a dispute arose between the parties as to the limit of liability coverage afforded by Kyla’s policy of insurance with INA. ISG claimed that Kyla had $1,000,000 worth of coverage, but INA contended that the policy provided a $500,000 single limit of liability coverage.

In October of 1985, INA filed a complaint seeking declaratory judgment in the Superior Court of Fulton County although it was defending the suit which had been filed against Kyla in the Tenth Judicial Circuit of Alabama. Before the court ruled upon the complaint for declaratory judgment which contended that Kyla’s insurance coverage was limited to $500,000, INA settled the lawsuit for $600,000. Nearly two years after the complaint for declaratory judgment was filed, INA obtained an assignment from Kyla of any claims that it had against ISG for its failure to provide coverage in the amount of $1,000,000.

In October of 1988, in ruling upon INA’s complaint for declaratory judgment, the court held that the policies INA issued to Kyla had a $500,000 single limit of liability and that the premium was based on that limit, and that the $100,000 overpayment which INA made in settlement of a lawsuit on behalf of Kyla was a voluntary payment made without any legal obligation or compulsion. The court further held that INA could not recover the overpayment from either Kyla or ISG, and that the agreement between Kyla and INA not to waive any right by settling the lawsuit and not to consider any settlement paid by INA to be a voluntary payment was not binding on ISG.

INA appeals, contending that the court below erred in holding that the $100,000 overpayment by INA constituted a voluntary payment and in permitting ISG to raise it as a defense. Held:

In Ryder Truck Rental v. Ins. Co. of North America, 142 Ga. App. 408 (236 SE2d 146) (1977), no judgment was returned against appellant, but it settled the case when there was nothing to support a contention of liability. This court found a payment of a judgment by Ryder to be voluntary and denied Ryder’s demand for contribution from a codefendant’s insurance company as no right of contribution existed. In the instant case, appellant had no legal obligation to pay $100,000 in excess of its policy limits on Kyla’s behalf in settlement of the lawsuit. Indeed, it contended that its liability was limited to $500,000.

OCGA § 13-1-13 provides that “[p]ayments of claims made through ignorance of the law or where all the facts are known and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party are deemed voluntary and cannot be recovered unless made under an urgent and immediate necessity therefor. . . . Filing a protest at the time of payment does not change [this] rule.” The courts in this state have consistently held that this Code section applies both to one who pays money with knowledge of all the facts and to one who pays by mistake without a valid reason for failing to ascertain the truth. Gulf Life Ins. Co. v. Folsom, 256 Ga. 400, 401 (349 SE2d 368) (1986). In addition, the party seeking recovery must prove that the payment was not voluntarily made because certain material facts were not known at the time of payment or a valid reason existed for failure to determine the truth. New York Life Ins. Co. v. Williamson, 53 Ga. App. 28 (184 SE 755) (1936). We do not find that relief may be granted under the negligence exception set forth in Gulf Life Ins. Co. v. Folsom, supra at 402, as there is no allegation that the $100,000 was paid in error. INA always contended that its liability was $500,000 and the superior court agreed.

INA is attempting to recover the excess payment, alleging that it accepted assignment of Kyla’s claim against ISG for failure to properly procure insurance coverage for Kyla. In McDonald v. Bryson, 97 Ga. App. 466 (103 SE2d 608) (1958), this court held that when title to a chose in action is in the assignor and not in the plaintiff on the date that the lawsuit is filed, the plaintiff may recover only upon the facts as they existed at the time of the commencement of the action, and reliance upon a subsequent transfer of title is a virtual concession that the title claimed at the commencement of the action is not sufficient. In the instant case, application of the above rule would estop INA from an action against ISG for the overpayment.

Decided November 1, 1989

Rehearing denied November 16, 1989

Fortson & White, Williston C. White, Michael J. Rust, Mark E. Colm, for appellant.

Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, Norton, Pennington & Goetz, Charles M. Goetz, Jr., for appellees.

Under Jones v. Ga. Cas. &c. Co., 89 Ga. App. 181, 185 (78 SE2d 861) (1953), where the insurer assumes and conducts a defense in an action brought against its insured without disclaiming liability or giving notice that it is reserving its rights, it is precluded from asserting the defense of forfeiture or noncoverage. To avoid application to this rule, INA had to give Kyla timely notice of non-coverage. Notice of reservation of rights given ten and one-half months after taking charge of the defense of the action is not timely. Appellant did not enter upon the defense of the lawsuit with a reservation of rights, give notice of the reservation to Kyla, and seek a declaratory judgment. Instead, the first notice to Kyla with reference to any possible excess exposure was in a letter from one Becky Cooper dated June 13, 1985. It did not seek declaratory judgment for some fifteen months after the lawsuit was filed and then proceeded to settle the lawsuit prior to a ruling upon the declaratory judgment action.

We find no error in the trial court’s ruling.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A2125.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. WEATHERS et al.
    (388 SE2d 393)
   Deen, Presiding Judge.

In two separate collisions occurring approximately fourteen months apart, appellees Robbin Jones Weathers and Margaret K. Gale, unrelated insureds of appellant State Farm Mutual Automobile Insurance Company (State Farm), received injuries caused by uninsured or underinsured motorists, both of whom were admittedly driving under the influence of alcohol in violation of OCGA § 40-6-391 et seq. Both appellees filed complaints seeking from the respective tortfeasors Clifton and Parker damages for bodily injury and medical expenses, plus punitive damages. Appellee Weathers also sought compensation for lost wages. A copy of each complaint was served upon plaintiff/appellees’ uninsured/underinsured motorist carrier, appellant State Farm.

While agreeing that the cases were proper ones for seeking punitive damages, State Farm denied that punitive damages were included in the damages provisions of the insurance policies. After receiving demands from Weathers and Gale, State Farm filed a petition for injunctive relief and declaratory judgment in June 1989. Weathers and Gale answered the petition; shortly thereafter the parties filed cross-motions for summary judgment. The trial court denied State Farm’s motion for summary judgment and granted that of Weathers and Gale. State Farm appeals, assigning error to the court’s rulings on the cross-motions for summary judgment. Held:

OCGA § 33-7-11 (a) (1) requires that all automobile and motor vehicle liability policies issued in Georgia contain “provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle.” In State Farm &c. Ins. Co. v. Murphy, 226 Ga. 710 (177 SE2d 257) (1970), Georgia’s Supreme Court held at 714: “[T]he purpose of the Uninsured Motorist Statute is to place the insured in the same position as if the tortfeasor had [liability insurance coverage]. The statute does not place any limitation but. . . plainly provides for payment of all sums the insured is legally entitled to recover.” The court subsequently held, in Greenwood Cemetery v. Travelers Indem. Co., 238 Ga. 313 (232 SE2d 910) (1977), that recovery of punitive damages under liability insurance coverage does not per se violate public policy. The dissent in that case urged that the issue be determined on a case-by-case basis. In State Farm Mut. Ins. Co. v. Kuharik, 179 Ga. App. 568 (347 SE2d 281) (1986), the court disallowed the insured’s claim for punitive damages from her uninsured motorist carrier when the tortfeasor had left the scene of the accident and his identity was unknown. The basis of this decision was that no deterrent purpose would be achieved if the damages were paid by someone other than the tortfeasor. The court expressly declined, however, to decide “whether an uninsured motorist carrier could be held liable to its policyholder for punitive damages based on the misconduct of a known tortfeasor over whom the court had acquired personal jurisdiction.” Id. at 569. This is therefore a case of first impression.

General principles for construing statutes, and particularly that principle which requires that remedial statutes be construed liberally in favor of those whom the statutes were designed to protect, militate against a finding that an exception for punitive damages should be carved out of the statutory language, “all sums.” The principle that a contract is to be strictly construed against the party who drafted it further reinforces this conclusion.

In light of the foregoing considerations, we find no reason in either law or logic for ignoring the statute’s plain language (“all sums which [the victim] shall be legally entitled to recover as damages”) and making an exception for punitive damages. OCGA § 9-11-56 (c) directs the award of summary judgment when “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Since the issue in the instant case — whether punitive damages are included in the “all sums” language of OCGA § 33-7-11 — is one of law, and the court determined that the law favored the position of appellees rather than of appellant, it follows that appellees were entitled to summary judgment as a matter of law, and appellants were not.

Decided November 6, 1989

Rehearing denied November 16, 1989

Kent, Rackett & Nelson, A. Martin Kent, for appellant.

Clarence L. Martin,'Arthur L. Cooper, Tom A. Edenfield, for appellees.

The rulings of the trial court were proper, and appellant’s enumerations of error are therefore without merit.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A2152.
    BROOKS v. THE STATE.
    (388 SE2d 386)
   Deen, Presiding Judge.

Appellant Brooks, a young male, was among several neighbors who gathered when another neighbor, a young female hereinafter referred to as “the victim,” flattened one of the tires on her automobile when she struck a concrete or stone abutment at the entrance to the complex where she and the others lived. According to the victim’s testimony, appellant remained with her in or near the car while some of the others went for help. Again according to the victim, appellant suggested that they go to the telephone in his apartment, which he said was just across the street, to call for assistance. Instead of going to his apartment, the victim testified, appellant led her to an empty apartment, where he committed rape and sodomy. She further testified that when appellant placed his hand over her mouth to prevent her screaming, she bit his finger, causing a gold ring to fall off, and that she surreptitiously picked up the ring and concealed it in her mouth.

As the assailant led the victim out of the empty apartment, she saw another neighbor standing on the balcony of his own apartment and ran towards him. The assailant, whom the victim on several occasions afterward consistently identified as appellant, immediately walked off in another direction.

The neighbor testified that the victim was disheveled and hysterical, and that he brought her into his apartment and then took her to the police station. After an interview (the interviewing officer testified that the victim shook, stuttered, and appeared terrified as she told him what had happened), police personnel went to the “good Samaritan” neighbor’s apartment and retrieved the gold ring and the victim’s underwear, both of which had inadvertently been left there. The victim was taken to a hospital, where a rape kit test revealed the presence of no foreign hairs or semen on the victim’s clothing or body.

As a police officer took the victim back to the apartment complex and was about to begin an on-site investigation, the victim suddenly shouted “That’s him!” and pointed to appellant, who was walking on the apartment complex grounds. Appellant ran, ignoring the officer’s shouts of “Halt, police!”, but was eventually cornered and taken into custody. The victim made a positive identification at that time, and appellant was arrested and charged with rape and aggravated sodomy.

At trial a forensic expert from the State Crime Laboratory testified to the absence of foreign hairs but stated that this was not unusual when a rape had occurred; a second expert from the State Crime Laboratory corroborated the former’s testimony. Several witnesses who had attended the party at which the victim had been present shortly before her automobile accident testified that appellant had also been at the party. They described his jewelry and clothing, giving descriptions that corresponded to the descriptions provided by the victim during her initial interview at the police station. The rather distinctive clothing initially described by the victim (and by witnesses at the trial) was found in the appellant’s apartment. Appellant admitted at trial that he had been at the party and also admitted having had sexual relations that night with an unidentified person; he denied, however, that he had had contact with the victim.

A Cobb County jury found appellant guilty on both counts; he was sentenced to twenty years’ incarceration on the rape count and ten years on the aggravated sodomy conviction, to be served consecutively. On appeal he enumerates as error (1) the trial court’s admitting expert testimony regarding the probability of finding foreign hair samples on an alleged rape victim and (2) the court’s permitting a police officer to “bolster” other witnesses’ testimony on direct examination. Held:

1. The trial transcript reveals that the second forensic expert, Ms. Santa Maria, to whose testimony appellant excepts, was qualified as an expert without objection from appellant, and that she testified only as to matters within her area of expertise. Moreover, the transcript reveals, testimony as to whether the absence of foreign hairs on a rape kit test was unusual was elicited first by the State and subsequently by the defense, and the defense made no objection when the testimony was offered in response to the State’s question. “[A]dmission of evidence over objection even if [arguendo, it is] error, is harmless when evidence to the same effect has already been admitted without objection.” Griffin v. State, 170 Ga. App. 287, 290 (316 SE2d 797) (1984); cert. denied. This enumeration is without merit.

Decided November 2, 1989

Rehearing denied November 16, 1989.

Michael R. Hauptman, for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, Assistant District Attorney, for appellee.

2. According to the trial transcript, no objection was made at trial to the testimony whose admission appellant challenges in his second enumeration. It is well settled that, unless the alleged error is of constitutional dimensions, an error raised for the first time on appeal presents nothing for review by the appellate court. Cooper v. State, 188 Ga. App. 297 (372 SE2d 679) (1988); Green v. State, 187 Ga. App. 373 (370 SE2d 348) (1988). The error raised here does not qualify for the constitutional exception. This enumeration is also without merit.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


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

text:
    A89A0959.
    CORNWELL v. THE STATE.
    (388 SE2d 353)
   Banke, Presiding Judge.

The appellant was charged with two counts of aggravated assault upon a police officer. See OCGA § 16-5-21 (c). He was found guilty as charged on Count 1 but convicted of reckless conduct as a lesser included offense on Count 2. See OCGA § 16-5-60 (b). He brings this appeal from the denial of his motion for new trial. Held:

1. The appellant contends that he was entitled to a directed verdict of acquittal on both counts due to the state’s failure to prove that either of the two alleged victims were officially certified as peace officers under the Georgia Peace Officers Standards & Training Act, OCGA § 35-8-1 et seq. See Holstein v. State, 183 Ga. App. 610 (359 SE2d 360) (1987). Since the appellant was found guilty of the lesser included offense of reckless conduct on Count 2 of the indictment, the trial court’s refusal to direct a verdict in his favor on that count based on the state’s asserted failure to prove that the victim was a peace officer is moot. Cf. Thomas v. State, 184 Ga. App. 131 (1) (361 SE2d 21) (1987); Waters v. State, 177 Ga. App. 374 (3) (339 SE2d 608) (1985). With respect to Count 1, on which the appellant was found guilty as charged, we hold that the evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that the victim was a peace officer engaged in the performance of his official duties at the time the incident occurred, notwithstanding the absence of any evidence that he had been certified as such by the Georgia Peace Officers Standards & Training Council. The victim testified that he was employed by the City of Norcross Police; that he had been on duty on the day in question “[i]n a patrol capacity”; that, accompanied by his partner, he had driven his “patrol car” to the appellant’s residence in response to “a call that there was a fight in progress with shots fired”; that he was “the officer” who had written the original citations against the appellant; and that he had subsequently prepared a police report on the incident. The victim was not asked on cross-examination whether he had been officially certified by the Georgia Peace Officers Standards & Training Council to act as a peace officer, nor was any evidence introduced suggesting that he had not been. Compare Holstein v. State, supra. Under the circumstances, we hold that the state was not required to prove the victim’s certification in order to make a prima facie showing that he was acting as a peace officer within the contemplation of § 16-5-21 (c).

2. The appellant contends that the trial court erred in failing to charge the jury that an essential element of the offense of aggravated assault upon a police officer is knowledge that the victim was a police officer. See Bundren v. State, 247 Ga. 180 (2) (274 SE2d 455) (1981); Britt v. State, 184 Ga. App. 445 (2) (361 SE2d 710) (1987). The state, on the other hand, cites Carter v. State, 162 Ga. App. 44 (2) (290 SE2d 143) (1982), for the proposition that the trial court adequately covered this element of the offense by charging that one “who knowingly commits the offense of aggravated assault upon a peace officer while the peace officer is engaged in, or on account of the performance of his official duties commits the offense of aggravated assault upon a police officer.”

We agree with the appellant that the use of language such as “knowingly commits” or “knowingly assaults” is insufficient to convey to the jury the requirement, as set forth in Bundren v. State, supra, that the accused must have acted with knowledge that the victim was a police officer; and to the extent that Carter v. State, supra, supports a contrary holding, it is hereby overruled. However, we conclude that this deficiency in the court’s charge does not require reversal of the appellant’s conviction in the present case, inasmuch as the knowledge element of the offense was adequately covered in an earlier portion of the charge. The indictment, which was both read to the jury during the charge and sent out with them to the jury room, alleged that the appellant had assaulted the officer in question “knowing said officer . . . was a peace officer engaged in the performance of his official duties. ...” Immediately after reading the indictment, the court charged the jury that the state had the burden of proving each element of the indictment beyond a reasonable doubt. Based on these instructions, and in the absence of any request for additional instructions on the issue, we hold that the court’s charge as a whole adequately presented to the jury all of the elements of the offense for which the appellant was being tried. Accord Whitehead v. State, 177 Ga. App. 259 (1), 260 (339 SE2d 365) (1985).

3. The appellant contends that the trial court erred in refusing to give his requested charge that if a person’s mind becomes so impaired because of the influence of alcohol that he is incapable of forming an intent to commit an act or understand the consequences of an act, he is not criminally responsible for the act. See generally Pope v. State, 256 Ga. 195, 208 (16) (345 SE2d 831) (1986); Ely v. State, 159 Ga. App. 693 (285 SE2d 66) (1981). This contention is without merit. While the appellant testified that he had been intoxicated at the time of the incident and attributed his behavior to his intoxication, he did not claim that he was unaware of what he was doing or that he was unaware that the individuals -he was confronting were , police officers. Rather, he simply maintained that he “never made any conscious effort to point that gun at anyone ...” and that if in fact he did point the gun at anyone, he did so inadvertently. This testimony did not warrant the giving of the requested instruction. See generally OCGA § 16-3-4; Franklin v. State, 183 Ga. App. 58 (1) (357 SE2d 879) (1987); Booth v. State, 184 Ga. App. 494 (361 SE2d 868) (1987).

4. The appellant contends that the trial court erred in refusing to allow his counsel to review certain notes which the police witnesses had examined to refresh their recollections prior to taking the stand.

In an effort to eliminate confusion stemming from its prior decisions concerning the circumstances under which defense counsel must be given access to such documents, the Supreme Court recently held, in Johnson v. State, 259 Ga. 403 (383 SE2d 118) (1989), that “if a witness uses documents to refresh memory after the inception of a hearing or trial, then during that hearing or trial, the cross-examiner is entitled to examine such documents.” Id. at 405. The appellant contends that the testimony of the police witnesses in the present case establishes that the trial was already in progress at the time they reviewed their notes, with the result that he was entitled to review them under the Johnson standard. We disagree. The witnesses in question testified that they had reviewed their notes or reports regarding the incident prior to coming to court on the morning of the first day of trial. Although it cannot be determined with certainty from the transcript whether the officers departed for the courthouse before or after the trial commenced, it is reasonable to assume that these witnesses were already present in court at the time the trial began. As we believe the burden was on the appellant to establish his right of access to the documents by showing that the witnesses had in fact reviewed them after the inception of the trial, and as the testimony is at best ambiguous in this regard, we find this enumeration of error to be without merit.

Judgment affirmed.

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

Carley, Chief Judge,

concurring specially.

I concur fully in Divisions 1, 3, and 4 of the opinion and in the judgment of affirmance. However, I cannot agree with the majority’s overruling of Carter v. State, 162 Ga. App. 44 (2) (290 SE2d 143) (1982). The majority concludes that Carter is inconsistent with Bundren v. State, 247 Ga. 180 (2) (274 SE2d 455) (1981) which holds that, in a case involving aggravated assault upon a police officer, “the jury must be charged that knowledge is an essential element to the crime.” Bundren v. State, supra, 182. In Bundren, the trial court did not charge that knowledge was an element of the crime. Not only is Carter v. State, supra, not inconsistent with Bundren, it specifically recognizes Bundren as the controlling authority and points out that in Bundren, the “charges were deficient in that neither made any mention whatsoever of the knowledge element.” Carter v. State, supra, 45. The charge which was attacked in Carter was approved as being in compliance with Bundren because it was “a nearly verbatim reading of the statute [OCGA § 16-5-21 (c)].” (Emphasis supplied.) Carter v. State, supra, 45. In the instant case, the trial court’s charge was totally a verbatim reading of the statute. Unlike Bundren and Britt v. State, 184 Ga. App. 445 (2) (361 SE2d 710) (1987), also relied upon by the majority, the trial court clearly and unequivocally charged the jury as to the requirement of knowledge as an element of the crime of aggravated assault upon a police officer. In this case, the trial court’s charge is in conformity with Carter. Carter correctly states the law and should not be overruled. It follows that there was no error in the trial court’s charge with regard to the essential elements of the offense of aggravated assault upon a police officer.

I am authorized to state that Presiding Judge Deen and Judge Birdsong join in this special concurrence.

Benham, Judge,

concurring specially.

I agree fully with Chief Judge Carley’s special concurrence in this case, but I am compelled to write separately to point out what I perceive as a basic flaw in the majority’s treatment of this issue.

The majority holds that giving the jury the elements of the offense by reading from the statute is not sufficient. Bundren v. State, 247 Ga. App. 180 (2) (274 SE2d 455) (1981), on which the majority relies, does not support that position. The Supreme Court ruled in Bundren that it was error for the trial court to omit any reference to knowledge from the charge, but it did not hold the language of the statute to be insufficient to inform the jury that knowledge is an element of the offense. The majority’s holding to that effect in this case is, in essence, a holding that the language of the statute is not adequate to give a person of ordinary intelligence notice of the conduct prohibited. If that is so, the statute is void for vagueness. Izzo v. State, 257 Ga. 109 (1) (356 SE2d 204) (1987). I do not believe the statute is defective in that fashion.

Finally, the majority’s overruling of Carter v. State, 162 Ga. App. 44 (2) (290 SE2d 143) (1982), is unnecessary to the resolution of this case and is, therefore, dicta. This case was decided on the basis that the charge, as given, was adequate; that being so, it was unnecessary to consider Carter’s viability.

Beasley, Judge,

concurring specially.

I totally agree with the majority. There are two elements of knowledge required for conviction of this crime. One is that defendant “knowingly assaults” (the words used in Carter v. State, 162 Ga. App. 44, 45 (2) (290 SE2d 143) (1982)) or “knowingly commits . . . aggravated assault” (the words used in the statute and in this case). This relates to defendant’s knowledge that he is committing the act of aggression. The other knowledge which is essential relates to defendant’s knowledge that the victim is a police officer. Bundren v. State, 247 Ga. 180, 181 (2) (274 SE2d 455) (1981). This is implied in the statute but is not set out in express language, creating somewhat of an ambiguity.

The trouble with Carter and with trial courts just reading the statute to the jury is that such instructions do not make clear that the jury must find that defendant knew when he acted that the object of his aggression was a police officer.

On Motion for Rehearing.

On motion for rehearing, the appellant points out that the state has conceded, in a supplemental brief filed with this court, that the police witnesses did in fact examine their notes after the commencement of the trial. However, there is no contention that such a stipulation was made or sought in the trial court, nor have we otherwise been cited to any evidence of record which would have compelled the trial court to reach such a conclusion. “This court, as an appellate court, is empowered only to correct such errors of law as have been committed in the trial court and appear as a matter of record before that court. [Cits.]” Jones v. State, 169 Ga. App. 810, 811 (315 SE2d 40) (1984). In any event, the documents in question have been transmitted to this court as part of the record on appeal, and our review of them convinces us that the court’s ruling could not, in any event, have been harmful to the appellant. Accord Johnson v. State, 259 Ga. 403, 405 (383 SE2d 118) (1989). Accordingly, we reaffirm our holding that the court’s ruling on this issue does not establish grounds for reversal of the appellant’s conviction. The motion for rehearing is denied.

Decided October 20, 1989

Rehearing denied November 17, 1989

Davis, Brofman, Zipperman & Kirschenbaum, E. Marcus Davis, Steven A. Suna, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.


text:
    A89A1139, A89A1168.
    METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al. v. MARTIN et al.; and vice versa.
    (388 SE2d 346)
   Carley, Chief Judge.

Pursuant to OCGA § 22-2-100 et seq., condemnation proceedings were instituted against a portion of a tract of property owned by Donald Martin and leased to Electrical Distributors, Inc. (EDI). An appeal was taken from the special master’s award of compensation. As to Martin, the jury found that the property was not unique and an award of $297,500 as the fair market value of the condemned property was made. As to EDI, the jury found that the property was unique and an award of $200,000 as the business loss occasioned by the condemnation was made. In Case No. A89A1139, Metropolitan Atlanta Rapid Transit Authority and DeKalb County (Condemnors) appeal from the judgment entered on the jury’s verdict. In Case No. A89A1168, Martin and EDI cross-appeal from that judgment.

Case No. A89A1139

1. At the close of the evidence, the Condemnors moved for a directed verdict on the issue of EDI’s entitlement to a recovery for a business loss as a separate element of compensation. The trial court denied this motion. After judgment was entered on the jury’s verdict, the Condemnors filed a motion for judgment n.o.v. This motion was also denied. The Condemnors enumerate as error the denial of these motions for directed verdict and for judgment n.o.v.

“[W]hen the business belongs to a separate lessee, the lessee may recover for business losses as an element of compensation separate from the value of the land . . ., provided only that the loss is not remote or speculative. [Cit.]” Department of Transp. v. Dixie Hwy. Bottle Shop, 245 Ga. 314, 315 (265 SE2d 10) (1980). “ ‘[I]f the business has suffered damage because of the taking of the real property upon which it is carried on, the correct measure of damages would be the difference in market value prior to and after the taking. While various elements, such as loss of profits, loss of customers or possibly what might be termed a decrease in the earning capacity of the business may all be considered in determining the decrease in value of the business, they represent no separate element of damage.’ [Cit.]” (Emphasis supplied.) Old South Bottle Shop v. Dept. of Transp., 175 Ga. App. 295 (1) (333 SE2d 127) (1985). The Condemnors urge that no probative evidence as to either the existence or the amount of any decrease in EDI’s value as a business was adduced and that the issue of EDI’s recovery of a business loss was, therefore, erroneously submitted to the jury.

The Condemnors’ own expert testified that, in his opinion, there was no difference whatsoever in the pre-condemnation and post-condemnation value of EDI as a business. This shifted the burden to EDI to come forward with evidence to show that a compensable decrease in its value as a business had occurred. See generally Department of Transp. v. Bird, 158 Ga. App. 369, 371 (280 SE2d 394) (1981). Martin, as the majority shareholder and president, testified on behalf of EDI. After giving his reasons, Martin testified that, in his opinion, EDI had “lost seven to eight million dollars” as the result of the condemnation. However, Martin never gave any opinion as to whether or how this loss would translate into a specific decrease in the value of EDI as a business. A loss of profits, a loss of customers, or a decrease in a business earning capacity may be considered as factors which enter into the ultimate determination of the compensable decrease in the value of a business. However, those factors dó not themselves represent separate elements of damage. Old South Bottle Shop v. Dept. of Transp., supra. Thus, EDI may have produced evidence that, as the result of the condemnation, it had lost some “seven to eight million dollars” in the form of lost profits, loss of customers or a decrease in its earning capacity. However, it produced no evidence as to whether that loss had resulted in a decrease in its value as a business and, if so, the specific amount of compensation that would be recoverable therefor. See generally State Hwy. Dept. v. Andrus, 212 Ga. 737 (95 SE2d 781) (1956). Compare Department of Transp. v. Driggers, 150 Ga. App. 270 (257 SE2d 294) (1979). Martin never testified that, as the result of the factors enumerated by him, it was his opinion that a purchaser would have been willing to pay only a specific lesser amount for EDI as an on-going business than he would have been willing to pay before the condemnation.

In the absence of some evidence to guide the jurors in determining the existence and amount of a decrease in the value of EDI as a business, the issue of EDI’s recovery of a business loss as a separate element of compensation should not have been submitted to them. “ ‘To allow jurors to make up their verdict on their individual knowledge of disputed facts material to the case, not testified to by them in court, or upon their private opinions, would be most dangerous and unjust. It would deprive the losing party of the right of cross-examination, and the benefit of all the tests of credibility which the law affords. Besides, the evidence of such knowledge, or of the grounds of such opinions, could not be preserved ... or questioned on appeal. It would make each juror the absolute judge of the accuracy and value of his own knowledge or opinions, and compel the appellate court to affirm judgments on the facts, when all of the evidence is before it and there is none whatever to support the judgment. The court would be obliged to presume that the jury or some juror had, or at least thought he had, some personal knowledge of facts outside the testimony, or contrary to it, which would sustain the judgment.’ ” State Hwy. Dept. v. Andrus, supra at 739. The jurors in this case were erroneously allowed to reach a verdict as to the existence and the amount of a business loss sustained by EDI based solely upon their own knowledge and opinions as to the decrease in the value of a business that had sustained a loss of some “seven to eight million dollars.” See generally State Hwy. Dept. v. Andrus, supra. The Condemnors’ motion for directed verdict and judgment n.o.v. should have been granted and the trial court erred in denying those motions.

Case No. A89A1168

2. Approximately one year prior to the condemnation, a permit to build on the property had been denied. In the instant condemnation proceedings, Martin and EDI were allowed to pursue the topic of the denial of this permit insofar as it was relevant. See Lee v. Dept. of Transp., 191 Ga. App. 1 (380 SE2d 726) (1989). Contrary to their assertions on appeal, they were simply denied the opportunity to pursue the topic insofar as it was irrelevant. See generally Department of Transp. v. Poole, 179 Ga. App. 638, 639 (1) (347 SE2d 625) (1986). See also Department of Transp. v. Petkas, 189 Ga. App. 633, 640 (7) (377 SE2d 166) (1988); United Waste v. Fulton County, 184 Ga. App. 694, 698 (4) (362 SE2d 476) (1987).

3. The trial court did not err in charging the jury that the measure of damages for business loss is the difference in the fair market value of the business before and after the taking. See Old South Bottle Shop v. Dept. of Transp., supra.

Decided October 17, 1989

Rehearing denied November 17, 1989

Kutak, Rock & Campbell, Charles N. Pursley, Jr., Albert Sidney Johnson, for appellants.

Bovis, Kyle & Burch, John M. Bovis, B. Dean Grindle, Jr., Michael S. Young, for appellees.

Reynolds & McArthur, Charles M. Cork III, amicus curiae.

4. Under the testimony of Martin’s own expert, there was no issue of consequential damages to the remainder of the property. Accordingly, the trial court did not err in failing to charge on that issue.

Judgment in Case No. A89A1139 reversed. Judgment in Case No. A89A1168 affirmed.

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


text:
    A89A1284.
    COMMUNITY BANKERS ASSOCIATION OF GEORGIA, INC. v. FIRST NATIONAL BANK OF COMMERCE et al.
    (388 SE2d 387)
   Deen, Presiding Judge.

The Community Bankers Association of Georgia, Inc. (association), a trade organization composed of 291 state and national banks in Georgia, appeals the trial court’s affirmance of a ruling of the State Commissioner of the Department of Banking & Finance. The commissioner’s ruling approves the applications of Bank Corporation of Georgia to purchase one branch bank now belonging to Fulton Federal Savings & Loan Association and three branch banks now owned by Georgia Federal Bank, and permits each branch to be purchased by a subsidiary of Bank Corporation and operated as a subsidiary of Bank Corporation in the four counties where they are located.

Appellant association contends that the Georgia banking laws do not permit purchase and operation by a bank holding company of a single branch bank of another banking company, but that the purchaser must purchase the entire banking operations of the seller banking company. The association’s avowed concern is the buyer’s unauthorized branching into counties where formerly it had no operations, in violation generally of OCGA § 7-1-601, which restricts establishment of “branch banks” in particular counties to certain very limited circumstances, including “merger or other consolidation pursuant to the provisions of [OCGA § 7-1-606 (e)].” OCGA § 7-1-601 (c) (1) (as amended).

The ultimate question, therefore, is the meaning of the language at § 7-1-606 (e), as amended, impliedly permitting the commissioner’s approval of a bank holding company’s “acquiring] control of a bank,” by which the holding company “may, with the approval of the commissioner, either at the time such control is obtained or at any time thereafter, merge or consolidate such bank with another of such bank holding company’s banking subsidiaries or have another of such bank holding company’s banking subsidiaries acquire all or substantially all of the assets of such bank and consequently operate as a branch of such other banking subsidiary. . . .” (Emphasis supplied.)

The association argues that the last sentence of § 7-1-600 (1): “ ‘Bank’ shall include ‘bank office,’ ‘bank facility,’ ‘parent bank,’ and ‘branch bank,’ unless the context indicates that it does not” (emphasis supplied) means, by the word “includes,” that a “bank” consists of any or all of its facilities. That is, the association contends this definitional phrase using the words “ ‘Bank’ shall include . . . ‘branch bank’ ” controls the question whether a purchaser, given approval to buy a “bank,” may simply buy a “branch bank” of another banking operation and operate that branch as its own subsidiary. Held:

1. The Georgia Department of Banking & Finance contends that this appeal should be dismissed because it should properly have been brought under the discretionary procedure set forth in OCGA § 5-6-35, rather than as a direct appeal under OCGA § 5-6-34.

OCGA § 7-1-90 provides for judicial review of agency decisions not subject to the Georgia Administrative Procedure Act and for appeals from such review. Subsection (b) provides, in pertinent part: “Appeals from all final orders and judgments entered by the superior court under this Code section may be taken to the Court of Appeals or the Supreme Court in the same manner as in other cases.”

Appellant contends that judicial review of the decision of the Department of Banking & Finance must be brought as a “special statutory proceeding,” as provided in OCGA § 7-1-90 (a). It further contends that, had the legislature intended that appeals from “all final . . . judgments entered by the superior court under” § 7-1-90 be discretionary appeals rather than appeals as of right, as provided in OCGA § 5-6-35, subsection (a) would have so specified; i.e., that it would read, “Appeals . . . under this section may be reviewed under the discretionary appeal procedure provided by OCGA § 5-6-35.” The motion to dismiss is denied.

2. The trial court was not persuaded by the association’s focus on the term “ ‘Bank’ shall include . . . ‘branch bank,’ ” and neither are we. The word “includes” is susceptible of meaning, inter alia, either “encompasses” or “is equivalent to,” and the parties are in fierce contention over this issue. The ambiguity in this language, and the uncertainty and confusion that it has arguably engendered in the instant case, does not necessarily imply a corresponding confusion in the relevant law.

Indeed, we find no such confusion or uncertainty in the statutory scheme as to justify a debate revolving around the word “include.” The trial court erred in its conclusion that the word “include” in § 7-1-600 (1) was controlling in this matter, and in its theory that since the use of “include” in the earlier portion of that paragraph indicates the interchangeability of the term “bank” with its components, “include” must, consistently and necessarily, mean the same in the last sentence of the same paragraph. This word is too ambiguous to control as sophisticated a scheme as the regulatory statutes; indeed, to avoid such a situation as has evolved in the instant case is the very reason that the last phrase was added. The word “bank,” as used in the last sentence of § 7-1-600 (1), does not “include” “branch bank,” so as to be “interchangeable” in meaning; “the context indicates that it does not” (Emphasis supplied.)

Careful examination of the statutes reveals that any perceived uncertainty as to the shifting meaning of the phrase “ ‘Bank’ shall include . . . ‘branch bank’ ” in § 7-1-600 (1) is immediately resolved in the same statute, in the definitions of “branch bank” and “parent bank.” OCGA § 7-1-600 (5) defines “ ‘[b]ranch bank’ ” as “any additional . . . place of business of any parent bank located in a county other than in the county . . . wherein the parent bank is situated.” (Emphasis supplied.) OCGA § 7-1-600 (8) defines “[p]arent bank” as “the principal place of business where the general business of each bank shall be transacted in the particular city, town, or village specified in its articles.” (Emphasis supplied.) Construing these definitions together, the term “branch bank” cannot mean the same as the word “bank,” for the parent bank is the principal place of business of “each bank” in a particular city, town, or village, and a “branch bank” is “an additional place of business” in a county other than that in which the “parent bank” is located. Further, a “bank office” is an additional place of business conducting complete operations in the same county as a parent or branch (§ 7-1-600 (4)); and a “bank facility” is an additional place of business conducting limited operations in the same county as either the parent bank or the branch bank (§ 7-1-600 (2)). See also OCGA § 11-1-201 (4), (7).

Thus the definitional scheme of the entire statute plainly creates a pyramidal structure, in which the general business of the bank is conducted in a specified place by a parent bank; a branch bank is a branch of the parent in another county; and additional bank offices or bank facilities may be established in the county either of the parent or of a branch.

This pyramidal construction of § 7-1-600 is confirmed at § 7-1-620 (3), which incorporates § 7-1-600, and elaborates: “ ‘Banking office’ means any parent bank, branch bank, or bank office as such terms are defined in Code Section 7-1-600, or any other office at which a bank accepts deposits. . . .” (Emphasis supplied.) A branch bank is thus a “banking office” of the bank, “at which the bank accepts deposits,” and the bank thus comprises its banking offices — parent, branch, or other facility. If there is any vagueness or confusion in § 7-1-600 as to whether “branch bank” and “bank” are interchangeable terms, § 7-1-620 (3) dispels it.

The same distinction in terms regarding the establishment of branch offices and facilities is shown in § 7-1-602 (e) (as amended), where it is provided that a “merger or consolidation of two or more banks . . . where all of the constituent banks shall have either a parent bank or a branch bank located in the same county, then the surviving or resulting bank shall be the parent bank and may . . . operate any or all places of business of each constituent bank as either a branch bank, a bank office, or a bank facility. . . . [W]here both the selling and the purchasing banks shall have either a parent bank or branch bank in the same county, then the purchasing bank shall be the parent bank and may . . . operate any or all places of business of the selling bank as either a branch bank, a bank office, or a bank facility, as is consistent with and may be authorized by this part [18].” (Emphasis supplied.)

The meaning of the term “bank” is proven in the context of the language in section 606 (e) referring to the commissioner’s approval of a bank holding company’s “acquiring] control of a bank.” (Emphasis supplied.) This language originates in § 7-1-605 (a) (2) (A), which provides that a bank holding company has “control” over a bank if it “controls, or has power to vote 25 percent or more of any class of voting securities of the bank or company.” In this context “bank” is clearly the chief, or entire, operation in which stocks and securities inhere. A branch bank has no voting securities; its operation is controlled by the parent bank. See § 7-1-601 (a).

Furthermore, the word “acquire” as applied to a bank holding company consistently means, inter alia, the acquisition of the ownership or control of “voting shares of another . . . bank if, after such acquisition, such bank holding company will directly or indirectly own or control more than 5 percent of any class of voting shares of such . . . bank.” OCGA § 7-1-620 (1) (B). If “acquisition” of “control” of a bank is accomplished by acquisition of control of the stock of the bank, the term “bank” cannot mean “branch bank,” which has no controlling shares of its own but is controlled by its parent bank (§ 7-1-601 (a)), which is the principal place of business of the “bank” (§ 7-1-600 (8)) in a particular place.

When all of these statutory mandates are harmonized so that “bank” has a consistent meaning with regard to merger or consolidation, or acquisition of control of a “bank,” it becomes plain that where § 7-1-601 (c) (1) speaks of establishment of a branch bank “through merger or other consolidation [with a bank] pursuant to [§ 7-1-606 (e)],” it means merger of the entire bank operation, including parent, all branches, and all other facilities “at which a bank accepts deposits.” (Emphasis supplied.) OCGA § 7-1-620 (3).

This construction is again confirmed within § 7-1-606 (e), which refers to the approval of a holding company’s “acquiring] control of a bank,” by which means it may then “merge or consolidate such, bank with another of such bank holding company’s banking subsidiaries or have another of such bank holding company’s banking subsidiaries acquire all or substantially all of the assets of such bank and consequently operate as a branch of such other banking subsidiary.” The word “bank” means the entire bank operation, including parent, branches, and bank offices “at which a bank accepts deposits” (§ 7-1-620 (3)), even if such “bank” comprises but one office which can be operated as a branch of the acquirer. (Emphasis supplied.) No other construction of the term “bank” can be inferred, for the § 606 (e) references to “acquiring control of a bank,” and merging or consolidating “such bank” (see also § 602 (e)), mean acquiring control of its stock (§ 7-1-620 (1) (A)) or otherwise of its assets.

In short, the context of Section 601 (c) (1), Section 602 (e), and Section 606 (e) consistently indicates that the term “branch bank” is not necessarily interchangeable with “bank.” Nothing in those Code sections, or any other, expresses or implies any intent to permit approval of a bank holding company’s merging or consolidating with, or acquiring control of, a branch bank by itself without merging or consolidating with, or acquiring control of, the entire bank (through acquiring control of its stock or assets); § 7-1-620 (1)), including all the parent banks, branch banks or bank offices “at which a bank accepts deposits.” OCGA § 7-1-620 (3).

The trial court especially limited itself to a ruling that the Department of Banking & Finance did not “[violate] any statutory authority when it approved these applications,” and that the statute authorizes the Department to approve Bank Corporation of Georgia’s proposal to purchase one branch of another bank and operate it as a subsidiary. If the legislature had intended such a result, so inconsistent with the stringent regulation it has exercised over the establishment of branch banks generally, it would have been careful to state it. See Independent Bankers Assn. v. Dunn, 230 Ga. 345, 360-361 (197 SE2d 129) (1973). Since it did not, we cannot make such an inference; the context of the statutes does not allow us to do so. What may not be clear in § 606 (e) alone is made crystal-clear when studied in light of the entire statutory scheme of Title 7, particularly §§ 620 (3); 620 (1) (B); 602 (e); 600 (1); and 606 (c) (1). As to the construction of statutes generally, see OCGA § 1-3-1 et seq.

Decided November 2, 1989

Rehearing denied November 17, 1989

Martin, Snow, Grant & Napier, Edward J. Harrell, George C. Grant, Hylton B. Dupree, Jr., for appellant.

Michael J. Bowers, Attorney General, Harrison W. Kohler, Deputy Attorney General, Verley J. Spivey, Senior Assistant Attorney General, Amelia W. Baker, Staff Assistant Attorney General, Kilpatrick & Cody, Susan A. Cahoon, Richard R. Cheatham, for appellees.

Judgment reversed.

Benham and Beasley, JJ., concur. Birdsong, J., disqualified.

       Arguably, this case might have been reviewed under the Georgia Administrative Procedure Act, OCGA Title 50, Chapter 13. In language similar to that found in OCGA § 7-1-90 (b), supra, OCGA § 50-13-20 provides for “review of any final judgment of the superior court . . . by the Court of Appeals or the Supreme Court, as provided by law.”


text:
    A89A1390.
    HALL et al. v. THOMPSON.
    (388 SE2d 381)
   Birdsong, Judge.

This is a defective condition case, arising from the plaintiffs fall when a plank broke on the porch of her mother’s rented house. Plaintiffs mother had lived in the house 10-12 years and this plank had “sagged” for years. Plaintiff visited her mother each day and crossed this plank, always avoiding stepping on it because she knew it was hazardous. On this day, she forgot about the plank’s condition and stepped on it, whereupon it sagged and broke. Plaintiff conceded she had never made a specific complaint to the landlord about this plank. Held:

1. The trial court granted summary judgment to defendant landlord, evidently upon the basis that the landlord did not possess “superior knowledge” of this hazardous condition. See generally Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327); Sears, Roebuck & Co. v. Reid, 132 Ga. App. 136, 138 (207 SE2d 532).

The ruling in this case is correct. Even though the condition of the premises may be hazardous and the landlord negligent, he may not be liable for injury where plaintiff had equal or superior knowledge of the alleged defect. If plaintiff knows of a defect, “(she) must make use of all (her) senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to (her).” King Hardware Co. v. Teplis, 91 Ga. App. 13, 15 (84 SE2d 686); Taylor v. McDonald, 183 Ga. App. 320, 321 (359 SE2d 1).

There is no material issue of fact in the case that plaintiff had specific knowledge of the condition of the plank and of the particular danger of stepping on it. See Telligman v. Monumental Properties, 161 Ga. App. 13, 16 (288 SE2d 846). She simply forgot to be careful; this forgetfulness or inattention to a known specific danger does not make the defendant liable for her injury.

Appellant cites Thompson v. Crownover, 259 Ga. 126 (377 SE2d 660), as authority imposing liability on the landlord, but in that case, it was clear the landlord had specific prior notice of the deteriorating condition of the gas heater which injured the plaintiff. Moreover, Thompson involved an inherently dangerous defect which the tenants could hardly avoid, or at least there is a substantial jury question on that issue. It cannot easily be compared to a case like this involving a loose plank which the plaintiff has avoided in the past and clearly could have avoided on this occasion, with the exercise of ordinary care. Further, we find it imperative to note that although Thompson has reaffirmed the existence in Georgia of the landlord’s duty to exercise reasonable care in repairing defective conditions and keeping his premises in repair (id. pp. 128-129); and, although ordinarily questions of the plaintiff’s own negligence or assumption of risk are not susceptible to summary adjudication (i.e., p. 129), nevertheless the classic rules of negligence still apply in this state. These rules impose liability only where the landlord has actual or constructive superior knowledge, and the plaintiff has a duty to exercise ordinary care for her own safety. To say otherwise would be to relieve tenants of any duty of care and impose absolute liability upon landlords for all defective conditions which could have been repaired before the injury. If it is crystal clear as it is in this case (but was not in Thompson), that the plaintiff is at least equally aware of the specific hazardous condition and could have avoided it but simply failed to exercise ordinary care, the case is clearly subject to summary adjudication. Nothing in Thompson imposed an absolute liability upon landlords, nor do we believe the Supreme Court intended to do so.

2. Appellant has failed completely to follow the Rules of this court with regard to filing her appellate brief. See Rule 15, Court of Appeals. She includes no enumerations of error in the brief, but merely “incorporates” her brief from the court below. The structure of the brief does not even minimally comply with Rule 15 in all its parts. The appeal is subject to dismissal, for noncompliance with jurisdictional structural rules places a substantive burden upon the appellate court. However, in view of our ruling in Division 1 affirming the trial court’s ruling on clear grounds, we see no need to dismiss this appeal.

Decided November 1, 1989

Rehearing denied November 17, 1989

Sherry L. Stenson, for appellants.

Kelly, Denney, Pease & Allison, Ronald W. Self, for appellee.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.