text:
    A89A2253.
    QUEEN CITY BONDING COMPANY v. STATE OF GEORGIA.
    (390 SE2d 654)
   McMurray, Presiding Judge.

Queen City Bonding Company (“Queen City”) was bound as surety on appearance bonds for defendant Pedro Pablo Grisanti (“the principal”). The principal failed to appear for trial and an execution hearing was set at which Queen City’s defense that the principal’s death excused it from performance under the bonds would be considered. See OCGA § 17-6-31. The only evidence presented by Queen City at this hearing was the testimony of two Queen City representatives and an interpreter who testified that they traveled to Caracas, Venezuela, in search of the principal; that they talked with persons who said that they were related to the principal and that these persons told the witnesses that the principal was dead. The trial court found the pertinent testimony of these witnesses, i.e., that they were told by others that defendant was dead, is inadmissible hearsay and subsequently entered final judgment on the forfeited bail bonds. This appeal followed the denial of Queen City’s motion for new trial. Held:

In its sole enumeration, Queen City contends the trial court erred in excluding the testimony of its witnesses regarding reports they heard of the principal’s death. Queen City argues that this testimony was admissible as “original evidence” to explain “the conduct of [the principal] in failing to appear in Court.” Alternatively, Queen City argues that this testimony should have been admitted as a matter of “necessity.” These arguments are without merit.

The purpose of the excluded testimony was not to explain the witnesses’ conduct, but to prove the truth of what the out-of-court declarants had told them, i.e., that the principal was dead. Glisson v. State, 188 Ga. App. 152, 153 (2) (372 SE2d 462). Further, the “necessity” exception to the hearsay rule does not apply in the case sub judice as it was not shown that the out-of-court declarants were unavailable to testify. See Glisson v. State, 188 Ga. App. 152, 153 (2), 154, supra. Finding no other exception to the hearsay rule which brings vitality to the challenged testimony, we find that the trial court did not err in excluding said evidence and entering judgment on the forfeited bonds.

Judgment affirmed.

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

Beasley, Judge,

concurring specially.

I concur except for the reasoning with respect to the “necessity” exception.

The rule of evidence in OCGA § 24-3-1 (b) is that “[hjearsay evidence is admitted only in specified cases from necessity.” Glisson v. State, 188 Ga. App. 152, 154 (2) (372 SE2d 462) (1988), the case cited by the majority, speaks of legal unavailability as usually occasioned by death or when the witness may not be compelled to testify. Here the witnesses are not dead but they may not be compelled to testify because they are far beyond the subpoena powers of the court. OCGA §§ 24-10-21 and 24-10-29.

Decided February 7, 1990.

Douglas E. Smith, for appellant.

C. Andrew Fuller, District Attorney, David C. Turk III, Lee Darragh, Assistant District Attorneys, for appellee.

Even if appellant had established necessity based on their refusal to come voluntarily or some other explanation, the hearsay would not have been admissible because of its lack of trustworthiness. Swain v. C & S Bank of Albany, 258 Ga. 547 (372 SE2d 423) (1988). From what the in-court witnesses related, the foreign witnesses’ testimony would have been founded totally on hearsay. None of them had any direct knowledge of the principal’s death. All, being relatives, had an interest in preserving the principal from the bondsman if their kinsman were alive.

It is highly questionable whether, even if the foreign witnesses had been present in court and thus subject to the oath and to cross-examination, their testimony as to the fact of the principal’s death, offered under OCGA § 24-3-12, would have survived a challenge of hearsay because of the nature of that testimony. Their “unavailability” does not diminish its hearsay quality.

I am authorized to state that Chief Judge Carley joins in this special concurrence.


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A90A0199, A90A0200.
    DEPARTMENT OF TRANSPORTATION v. FRANCO’S PIZZA & DELICATESSEN, INC.; and vice versa.
    (390 SE2d 655)
   Birdsong, Judge.

Department of Transportation (DOT) has filed a notice of appeal from the trial court’s order denying its motion for new trial in this condemnation suit, and appellee Franco’s Pizza & Delicatessen, Inc. (Franco’s) has filed a cross-appeal from certain orders of the trial court.

A jury verdict was returned in this case in favor of condemnee Franco’s and judgment was entered thereon which included cost of the action and certain interest. On January 7, 1987, condemnee Franco’s filed a memorandum of law regarding whether it need be paid just and adequate compensation pending appeal of the case. DOT filed a timely motion for new trial and subsequently filed a response to condemnee’s memorandum of law. On February 27, 1987, the trial court entered an order, citing as authority the provisions of OCGA § 32-3-19 (b), vacating its prior judgment. Condemnee Franco’s filed a timely motion to vacate and set aside the order of February 27, 1987. However, the trial court entered an order on March 17, 1987, finding that condemnor DOT does not have to pay into court the difference between the award of the special master and the jury verdict until the appellate process is complete and a final judgment is entered. On May 1, 1987, the trial court entered an order denying condemnee Franco’s motion to vacate and set aside the order entered on February 27, 1987.

The procedures followed in this case virtually mirror those found defective in Department of Transp. v. Petkas, 189 Ga. App. 633 (1) (377 SE2d 166) (whole court), cert. den. In Petkas we held that “the right to move for a new trial, to file a notice of appeal and to have an appellate resolution of the case are all premised upon the prior entry of judgment by the trial court on the jury’s verdict.” Id. at 635 (1).

Although appellee Franco’s has not moved to dismiss the appeal in Case Number A90A0199 on the grounds of Petkas “[t]his court has a duty to dismiss a pending appeal over which it has no jurisdiction ‘whenever and however its lack of jurisdiction may appear.’ ” Evans v. Davey, 154 Ga. App. 269, 270 (267 SE2d 875).

DOT makes a general assertion, without citation of authority or supporting argument, that Petkas is incorrect and should be reversed. Appellant DOT has failed to convince this court that Petkas was incorrectly decided. Accordingly, we find Petkas to be dispositive of this issue. “The trial court erred in relying upon OCGA § 32-3-19 (b) as authority for setting aside the judgment that it had entered on the jury’s verdict.” Petkas, supra at 636.

However in Petkas, this court proceeded to address the merits of the main appeal in the interest of judicial economy and fairness to the parties. DOT asserts that likewise, we should address the merits of the main appeal in this case. We decline to do so. Petkas was a case of first impression, and neither the parties nor the trial court were in a position to ascertain prior to announcement of our holding that their reliance on the unartful wording of OCGA § 32-3-19 (b) was misplaced. However, Petkas was decided on November 29, 1988, and cross-appellee’s counsel admit in judicio in their brief (see generally Green, Ga. Law of Evidence, Admissions, § 238, p. 395), the fact that the parties and the trial judge were informed by letter, dated January 23, 1989, of the Petkas decision. The record reflects that the trial court’s order vacating judgment remains in effect as of this date notwithstanding the precedent of Petkas. “The decisions of the Court of Appeals insofar as not in conflict with those of the Supreme Court shall bind all courts except the Supreme Court as precedents.” Ga. Const, of 1983, Art. VI, Sec. V, Par. III. Under the attendant circumstances, we decline to adjudicate the issues in the main appeal and cross-appeal in the case sub judice.

Decided February 7, 1990.

Weiner, Dwyer, Yancey & Mackin, Beryl H. Weiner, John D. Stone, J. Matthew Dwyer, Jr., Thomas C. Dempsey, Michael J. Bowers, Attorney General, Roland F. Matson, Senior Assistant Attorney General, for appellant.

Chamberlain, Hrdlicka, White & Johnson, Richard N. Hubert, for appellee.

Accordingly, we will dismiss both the main appeal and the cross-appeal, and remand the cases to the trial court with direction that it reinstate the original judgment in accordance with the precedent of Petkas, and take such other corrective action as thereafter may be required.

Appeals in Case No. A90A0199 and Case No. A90A0200 dismissed and cases remanded with direction.

Banke, P. J., and Cooper, J., concur.


author: Beasley, Judge.

text:
    A89A1847.
    WILLIAMSON v. THE STATE.
    (390 SE2d 658)
   Beasley, Judge.

Defendant appeals his convictions for speeding, OCGA §§ 40-6-181 and 40-6-183, driving under the influence of alcohol, OCGA § 40-6-391, and being a habitual violator, OCGA § 40-5-58.

His five enumerations of error are that the trial court erred: 1) by denying his motion for mistrial based on the contention that the jury panel was present while a plea of guilty was taken; 2) in allowing three State’s exhibits to be introduced into evidence over objection as tó the adequacy of their proof; 3) in allowing two State’s exhibits to be introduced over objection that they constituted hearsay and violated the best evidence rule; 4) in denying defendant’s motion for directed verdict as to the charge of habitual violator on the ground that the State’s evidence of notice to defendant was conflicting; 5) in overruling defendant’s motion for directed verdict on the charge of driving under the influence of alcohol because the State failed to prove the operator was certified on the Intoximeter 3000.

1. During a break in voir dire but with the entire panel present, the trial court took the guilty plea of another defendant in a case wholly unconnected with that of defendant. After the panel of twelve was selected, defendant objected and sought to have a mistrial declared.

The case on which defendant relies, Hayes v. State, 136 Ga. App. 746 (1) (222 SE2d 193) (1975), involved the taking of a codefendant’s guilty plea in the presence of the entire jury panel from which the jury was selected. This court recognized the principle that a codefendant’s guilty plea is not admissible in evidence and that permitting the entire panel to observe the taking of the plea circumvented the rule. That case is not controlling because no codefendant is here involved and there is nothing to show that the other case had any similarity to the defendant’s case.

Moreover, defendant’s waiting until the panel of twelve was selected cannot be condoned. Bennett v. State, 165 Ga. App. 600, 601 (3) (302 SE2d 367) (1983).

2. Defendant contends that because three card certificates showing the arresting officer was authorized to operate radar had only expiration dates, ending 12-31-86, 12-31-88 and 12-31-90 respectively, this did not show the officer was certified to operate radar on September 4, 1987, when defendant was arrested.

The officer testified that he believed each card was good for a two-year period. We find the argument used in support of the enumeration of error to be specious.

3. Defendant asserts that documents allowing radar operation within the city limits of Fayetteville were not authenticated by the proper authorities and thus were subject to exclusion on the grounds of hearsay and the best evidence rule.

The documents were admissible under OCGA §§ 24-7-20 and 24-5-26. See also OCGA Ch. 40-14; OCGA § 24-3-14 and Wiggins v. State, 249 Ga. 302, 305 (2) (c) (290 SE2d 427) (1982).

4. Although there were conflicts in the State’s evidence as to the date on which defendant’s five-year revocation as a habitual violator began, the State offered an explanation as to why this was so and demonstrated which document contained the correct date, December 13, 1982. Defendant’s contention that he was entitled to a directed verdict on the habitual violator charge is meritless. The evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that defendant was driving within the five-year period of revocation. See OCGA § 40-5-58. See also Humphrey v. State, 252 Ga. 525 (314 SE2d 436) (1984).

5. Defendant contends a directed verdict should have been granted to him on the charge of driving under the influence because the document offered by the State failed to reveal the officer was certified to operate the Intoximéter 3000.

Decided February 8, 1990.

Joseph J. Saia, for appellant.

W. Fletcher Sams, District Attorney, Sharon J. Law, Assistant District Attorney, for appellee.

The officer’s testifying as to his authority to operate the machine in question was sufficient. Wallace v. State, 188 Ga. App. 77, 79 (4) (371 SE2d 914) (1988); Clarke v. State, 170 Ga. App. 852 (319 SE2d 16) (1984).

Judgments affirmed.

Carley, C. J., and McMurray, P. J., concur.


text:
    A89A1879.
    INTERNATIONAL SOFTWARE SOLUTIONS, INC. v. ATLANTA PRESSURE TREATED LUMBER COMPANY et al.
    (390 SE2d 659)
   Birdsong, Judge.

Appellant appeals the final judgment in favor of appellees/plaintiffs in the amount of $5,500 of the State Court of Fulton County.

Appellees filed suit in magistrate court averring in its statement of claim that it “seeks rescission of the contract, to return the [computer] system to the [d]efendant, and a refund of its money.” (Emphasis supplied.) Appellant demanded trial by jury and the case was transferred to the state court. The trial court found inter alia that the parties had agreed appellant/defendant would sell and install a computer system for appellees; that the installed system never performed the function desired by appellees and agreed upon by the parties; that appellees were a small business with unique, but reasonable, computer system requirements; that the system sold and installed by appellants did not meet appellees’ needs; and, that appellees paid appellant $5,500 for the computer system. The trial court concluded that appellant had breached the agreement by failing to deliver a computer that could meet appellees’ needs, and that appellees had the statutory requirements of OCGA § 13-4-62 for rescission for nonperformance.

Appellant contends the trial court erred in concluding as a matter of law that appellees were entitled to rescission because “it is uncontroverted that the [a]ppellees at no time tendered, or offered to tender, to [ajppellant the . . . computer system,” and that the “computer system was retained by [a]ppellees even as of the date of trial.”

Generally in this state, a party desiring to rescind a contract must, as a condition precedent to such rescission, restore or tender the benefits received under the contract. See generally Acme Brewing Co. v. Wm. Rahr Sons Co., 10 Ga. App. 564 (73 SE 955) (restitution before absolution), citing Harden v. Lang, 110 Ga. 392 (1) (36 SE 100); 26 EGL, Restitution, § 13; compare Home Ins. Co. v. Swann, 34 Ga. App. 19, 26 (128 SE 70) and Collins v. Frazier, 23 Ga. App. 236 (1) (98 SE 188).

“The rule that he who desires to rescind a contract must restore whatever he has received under it is one of justice and equity . . . and must be reasonably construed and applied. The object of the rule is theoretically to place the parties in statu quo-, but the rule is equitable, not technical, and does not require more than that such restoration be made as is reasonably possible and such as the merits of the case demand.” (Emphasis supplied.) 17 AmJur2d 996, Contracts, § 512. It is apparent from a comparison of the plain language of OCGA §§ 13-4-60 with 13-4-62 that the latter statute, pertaining to rescission for nonperformance, embraces this basic concept. OCGA § 13-4-62 contains no express statutory requirement for restoration as a condition precedent to rescission for nonperformance, rather it authorizes such rescission “but only when both parties can be restored to the condition in which they were before the contract was made.”

In Smith v. McWhorter, 173 Ga. 255, 273 (160 SE 250), the Supreme Court held that “ ‘[o]ne rescinding [a] contract is not required to return consideration, when to do so would be unreasonable or impossible.’ ” (Emphasis supplied.) If the nonperforming party to the contract absents himself so that a restoration of the contract benefit gained cannot be timely made by the rescinding party, a suit for rescission may be maintained without a tender to the creditor in person, if the plaintiff offers to pay the money into court for him. Smith, supra at 274, citing Berry v. Williams, 141 Ga. 642 (81 SE 881). The evidence supports an inference that, after it became apparent that appellees were not satisfied with the equipment, appellant’s agent acted in a manner making it unreasonable, within the meaning of Smith, supra, for appellees to return the computer system to appellant. Moreover, appellees’ pleadings reflect its desire to return appellant’s computer system, and in open court an express offer to do so was made by appellees’ agent. Restoration does not require that the opposite party be placed in exact status quo, but only that he be placed substantially in his original position, and that the rescinding party shall derive no unconscionable advantage from the rescission. 26 EGL, supra at p. 21. We are satisfied the record before us shows that appellees’ in-court offer of restoration of appellant’s computer system met these tests.

Moreover, the transcript is replete with testimony from appellees’ agent regarding a pattern of delaying conduct on the part of appellant’s agent to repeatedly assert (even in his final conversation with appellees’ attorney) that the computer system problem could be corrected within a short period of time. The transcript also contains testimony from appellees’ agent that after a certain point in time appellant’s attorney refused to answer telephone messages and cancelled any further scheduled meetings. Construing this evidence most favorably to support the verdict and judgment as we are required to do on appeal, Locke v. Vonalt, 189 Ga. App. 783 (1) (377 SE2d 696), we find that the conduct of appellant’s agent lulled appellees for a substantial period of time into believing that the deficiencies in the computer system could and would be timely corrected, and that by the time it became apparent to appellees that the deficiencies would not be corrected, appellant’s agent had terminated further communications with the appellees. It is well settled that “[t]he law does not entitle one to profit by his own wrong.” State Hwy. Dept. v. Cobb Constr. Co., 111 Ga. App. 822, 827 (143 SE2d 500).

Decided February 8, 1990.

Robert E. Hall, for appellant.

Charles L. Jurjevich, for appellees.

Furthermore, “[a] correct decision of the trial court will not be reversed, regardless of the reasons given therefor.” National Consultants v. Burt, 186 Ga. App. 27, 33 (366 SE2d 344), writ vacated, 258 Ga. 645 (374 SE2d 532).

Judgment affirmed on condition that the computer system be returned to appellant; otherwise, judgment is reversed.

Deen, P. J., and Cooper, J., concur.


author: Cooper, Judge.

text:
    A89A1897.
    HOWARD v. THE STATE.
    (390 SE2d 662)
   Cooper, Judge.

Appellant was convicted of selling cocaine. The sole enumeration of error is that the trial court erred in admitting evidence of a prior similar transaction because the State failed to comply with Uniform Superior Court Rule (“USCR”) 31.3 (B) by failing to attach a copy of the guilty verdict to the notice of intent to present evidence of a similar transaction.

USCR 31.3 (B) provides as follows: “The notice shall be in writing, served upon the defendant’s counsel, and shall state the transaction, date, county, and the name(s) of the victim(s) for each similar transaction or occurrence sought to be introduced. Copies of accusations or indictments, if any, and guilty pleas or verdicts, if any, shall be attached to the notice.” Although the State did not attach a copy of the guilty verdict to the notice, all other procedural requirements were met. The trial court found that the State gave sufficient notice to meet the requirements of the rule, noting that since appellants’ counsel was given a copy of the indictment with the case number, he could have perused the entire file at any time. In Sweatman v. State, 181 Ga. App. 474 (1) (352 SE2d 796) (1987), we approved the trial court’s determination that the purpose of the rule is to provide a criminal defendant with fair and adequate notice of the State’s intention to introduce evidence of a prior similar transaction. We find Sweatman controlling in this case, and hold that the State substantially complied with the requirements of USCR 31.3 (B). Further, since appellant failed to show that any prejudice resulted from the admission of the evidence, any error was harmless. Sweatman u. State, supra.

Decided February 8, 1990.

Short & Fowler, Thomas S. Bishop, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Carley, Chief Judge.

text:
    A89A1948.
    ECHO ENTERPRISES, INC. et al. v. ASPINWALL.
    (390 SE2d 867)
   Carley, Chief Judge.

The relevant facts in this workers’ compensation case are as follows: For a number of years, appellee-claimant has worked as a general handyman for appellant-Echo Enterprises, Inc. (Echo) and is paid on an hourly basis. Echo is in the business of land clearing and bridge building. At the time of his injury, appellee was not engaged in any maintenance work on Echo’s premises. Instead, he was painting the personal residence of Earl Echols, a co-owner of Echo. Nevertheless, appellee was acting at Echo’s direction and was being paid by Echo to paint Mr. Echols’ home. After his injury, appellee sought workers’ compensation benefits from Echo. Echo and its appellant-insurer controverted appellee’s entitlement to benefits. After a hearing before an Administrative Law Judge (ALJ), appellee was awarded benefits. On de novo review, the Full Board, with one dissent, adopted the award of the ALJ. On appeal to the superior court, the Full Board’s award was affirmed. The application of Echo and its insurer for a discretionary appeal from the order of the superior court was granted.

1. The failure of the superior court to reverse the Full Board’s finding that appellee is an employee of Echo rather than an independent contractor is enumerated as error.

“ ‘The question of whether a person is an employee is one of fact, and, where there is any evidence to sustain the [B]oard’s finding of fact, the [superior] court should not interfere. [Cits.]’ [Cit.]” Tommy Nobis Center v. Barfield, 187 Ga. App. 394, 396 (1) (370 SE2d 517) (1988). The evidence shows that, in his capacity as general handyman for Echo, there was no definite beginning, continuance and ending to appellee’s employment, such as would be the case with an independent contractor. Although Echo did not make income tax and social security deductions from appellee’s paychecks, Echo did cover appellee under its group medical insurance program. Despite some irregularity in his weekly work hours, appellee’s insurance application indicated that he was employed by Echo and that he regularly worked at least 30 hours per week. Although Echo did not exercise the right to control the time, manner, method and means of appellee’s performance, the evidence authorized the finding that Echo did have the right to exercise such control if it had chosen to do so. On this evidence, the superior court did not err in affirming the Full Board’s finding that appellee was an employee of Echo and not an independent contractor. See Malcom v. Sudderth, 98 Ga. App. 674 (106 SE2d 367) (1958). Compare State of Ga. v. Goolsby, 191 Ga. App. 161 (381 SE2d 299) (1989).

2. OCGA § 34-9-2 (a) provides, in relevant part, that the Workers’ Compensation Act does not “apply to employees whose employment is not in the usual course of trade, business, occupation, or profession of the employer or not incidental thereto. ...” See also OCGA § 34-9-1 (2). The superior court’s failure to reverse the Full Board’s finding that appellee was not such an exempt employee is enumerated as error. ‘

As noted, Echo is in the business of land clearing and bridge building and appellee was not engaged to participate directly in those activities. However, appellant’s employment in the capacity as Echo’s general handyman was incidental to the usual course of Echo’s business. See Continental Cas. Co. v. Haynie, 182 Ga. 608 (1) (186 SE 683) (1936); Unigard Mut. Ins. Co. v. Hornsby, 134 Ga. App. 157, 158 (1, 2) (213 SE2d 538) (1975); Wender & Roberts v. Jones, 95 Ga. App. 82 (1) (97 SE2d 160) (1957). Compare Hartford Accident &c. Co. v. Thompson, 167 Ga. 897 (147 SE 50) (1929).

It is true that, at the time of his injury, appellee was painting Mr. Echols’ personal residence and that house painting is not Echo’s usual business. It is also true, however, that appellee was painting Mr. Echols’ house at Echo’s direction and was being paid by Echo and not by Mr. Echols. Having initially hired appellee as its general handyman, Echo cannot rely upon OCGA § 34-9-2 (a) and urge that appellee was an exempt employee while he was painting Mr. Echols’ home at its direction and expense. Although there is no controlling Georgia case, persuasive authority compels the conclusion that the proper construction of OCGA § 34-9-2 (a) is as an exemption from eligibility for compensation of those persons who are initially employed for the specific purpose of engaging in activity that is not in the usual course of business of the employer. “It cannot be used to exclude employees employed for the purpose of performing work in the usual business of the employer who happened to be, at the time of the accident, engaged in work outside the usual course of the employer’s business, at the direction ... of the employer.” (Emphasis in original.) Yearout v. Trusty, 684 SW2d 612, 614 (II) (Tenn. 1984).

Decided January 23, 1990

Rehearing denied February 9, 1990

Young, Young & Clyatt, Robert M. Clyatt, Daniel C. Hoffman, for appellants.

Dennis J. Strickland, for appellee.

3. On appeal, it is urged that the superior court erred in affirming the award because appellee’s injury did not arise out of and in the course of his employment as appellant’s handyman. See American Mut. Liability Ins. Co. v. Lemming, 187 Ga. 378 (200 SE 141) (1938). Compare Glen Falls Ins. Co. v. Merck, 117 Ga. App. 163 (159 SE2d 300) (1968). However, none of appellant’s enumerations of error is sufficiently broad so as to authorize the consideration of that argument on appeal. Appellant’s only enumerations of error raise the issue of appellant’s status as an independent contractor and an exempt employee under OCGA § 34-9-1 (2). Those issues of appellee’s status as an employee covered under the provisions of the Workers’ Compensation Act have been discussed in Divisions 1 and 2 and the separate issue of whether, conceding appellee’s status as a covered employee, he suffered a compensable injury arising out of and in the course of his employment as required under OCGA § 34-9-1 (4) cannot be reached.

Judgment affirmed.

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


text:
    A89A2111.
    PONDER v. THE STATE.
    (390 SE2d 869)
   Carley, Chief Judge.

After a jury trial, appellant was found guilty of one count of aggravated assault on a peace officer and two counts of possession of a deadly weapon by an inmate. Pursuant to the grant of leave to file an out-of-time appeal, appellant appeals from the judgments of conviction and sentences that were entered on the jury’s guilty verdicts.

1. Appellant enumerates the general grounds as to the aggravated assault count and one of the possession of a deadly weapon counts.

Officers testified that they heard appellant threaten to kill the victim and that they saw appellant take the knife from between two mattresses and stab him. The mere fact that these events occurred in appellant’s cell, which had just been searched, does not in any way show that the officers’ testimony is insufficient to support the convictions. There was no evidence that the search was so thorough that the knife could not have been overlooked. “The evidence was sufficient for a rational trier of fact to find proof of [appellant’s] guilt of aggravated assault [and possession of a deadly weapon] beyond a reasonable doubt.” Weaver v. State, 176 Ga. App. 639, 640 (1b) (337 SE2d 420) (1985).

2. Appellant raised no objection at trial to that portion of the State’s closing argument which he enumerates as error on appeal. “ ‘The failure to object below constitutes a waiver, and the appellant cannot now complain on appeal.’ [Cit.]” Sams v. State, 258 Ga. 158, 160 (3) (366 SE2d 290) (1988).

3. Appellant enumerates the court’s denial of his motion for change of venue as erroneous.

“ ‘In order to prevail on a motion for change of venue pursuant to OCGA § 17-7-150 (a), a defendant must show “(1) that the setting of the trial was inherently prejudicial or (2) that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible.” (Cit.) “(T)he empanelling of fair and impartial jurors, as demonstrated on voir dire, makes it particularly difficult to show that the setting of the trial was inherently prejudicial.” (Cit.) . . . Moreover, a trial court’s finding that a defendant can receive a fair trial in the county in which the crime was committed will be upheld unless manifestly erroneous. (Cit.)’ [Cit.]” Donalson v. State, 192 Ga. App. 37, 39 (5) (383 SE2d 588) (1989). “ ‘The test adopted by [the Supreme Court of Georgia] in determining whether or not a change of venue should be granted is whether the jurors summoned to try the case have formed fixed opinions as to guilt or innocence. . . .’ [Cits.]” Waters v. State, 248 Ga. 355, 361 (1) (283 SE2d 238) (1981). “The record shows that the 12 trial jurors [indicated] on examination that they had no opinion as to the guilt or innocence of the appellant. . . . That is the bottom line in all change of venue motions. We find no abuse of discretion in denying the [motion for] change of venue.” Florence v. State, 243 Ga. 738, 740 (2) (256 SE2d 467) (1979).

4. On voir dire, appellant’s counsel sought to ask the prospective jurors whether they believed that “the work of the guard at the Georgia State Prison . . . has been made overly difficult because of considerations that must be given inmates?” The trial court refused to permit this question to be answered and appellant enumerates this ruling as erroneous.

“While a defendant in a criminal case has an absolute right to have prospective jurors questioned as to those matters specified in OCGA § 15-12-133, control of voir dire examination is within the sound legal discretion of the trial court, and the appellate courts should not interfere unless it is shown to have been manifestly abused. [Cits.]” Lawton v. State, 191 Ga. App. 116, 118 (381 SE2d 106) (1989). “The Supreme Court has ‘repeatedly upheld the discretion of the trial court to restrict voir dire to questioning dealing directly with the specific case, and to prohibit overly broad questions.’ [Cits.]” Williams v. State, 165 Ga. App. 69, 70 (2) (299 SE2d 402) (1983). Moreover, questions calling for an opinion by a juror on matters of law are improper. See Williams v. State, supra at 70 (2); Hunter v. State, 170 Ga. App. 356 (1) (317 SE2d 332) (1984); Petty v. State, 179 Ga. App. 767 (1) (347 SE2d 663) (1986). “The [prohibited] question is not phrased or designed so as to elicit or reveal any actual bias or prejudice against [appellant] . . . [cit.] or any interest in the cause. [Cits.]” Bennett v. State, 153 Ga. App. 21, 26 (III) (264 SE2d 516) (1980); The trial court did not err in refusing to allow the question to be answered.

5. During trial, appellant was restrained by handcuffs and leg irons and, during his testimony, a guard stood beside the witness stand. The trial court’s allowance of these security precautions is enumerated as error. “ ‘[I]t is not necessarily an error of constitutional dimensions for an accused to appear in court wearing restraining devices or accompanied by uniformed guards. (Cits.) It is well settled that when, in the discretion of the trial judge, the use of restraining devices or the presence of uniformed guards is necessary for preventing disruptive or dangerous behavior by the accused or for securing the safety of those in the courtroom, or of the general public, the decision to implement such measures is within the court’s discretion. [Cits.]’ [Cit.]” Barefoot v. State, 175 Ga. App. 131 (3) (333 SE2d 13) (1985). There was evidence presented that appellant had stated that he would “tear up” the courtroom when his handcuffs were removed and that he had previously threatened to kill people. The trial court instructed the jury not to draw any ádverse inference from the mere fact that appellant was shackled and we find no error in the trial court’s allowance of what it deemed to be necessary security precautions. Compare McKenzey v. State, 138 Ga. App. 88, 90 (1b) (225 SE2d 512) (1976).

6. Appellant enumerates as error the trial court’s failure, without request, to require the State to give racially neutral reasons for the use of peremptory challenges of black prospective jurors. See Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

This issue was never raised in the trial court. “The failure of [appellant] timely to object [to the composition of the jury] is a valid state procedural bar to any complaint he may have under Batson. [Cit.]” Ford v. State, 257 Ga. 661, 664 (8d) (362 SE2d 764) (1987). See also Childs v. State, 257 Ga. 243, 257 (21) (357 SE2d 48) (1987). Moreover, even if the issue had been raised in the trial court, this enumeration would still have no merit. “Since the percentage of blacks on the jury was, as a result of the use of peremptory strikes, higher than that of the panel from which they were chosen, appellant did not show a prima facie case of discrimination. [Cit.]” Harris v. State, 186 Ga. App. 756, 757 (2) (368 SE2d 527) (1988). See also Aldridge v. State, 258 Ga. 75, 76 (4) (365 SE2d 111) (1988); Barnett v. State, 191 Ga. App. 552, 554 (1) (382 SE2d 620) (1989); Stewart v. State, 190 Ga. App. 162 (1) (378 SE2d 387) (1989).

7. Over appellant’s relevancy objection, the trial court admitted certain testimony concerning the usual manner of dealing with inmates in possession of a weapon. This ruling is enumerated as error.

Evidence “ ‘is relevant if it relates to the questions being tried by the jury, either directly or indirectly, tends to illustrate or explain the issue, or aids the jury in arriving at the truth. (Cit.)’ [Cit.]” Rosenthal v. Hudson, 183 Ga. App. 712, 715 (9) (360 SE2d 15) (1987). See also Kalish v. King Cabinet Co., 140 Ga. App. 345, 346 (1) (232 SE2d 86) (1976). The challenged testimony was relevant to explain why the officers entered appellant’s cell. “ ‘Evidence which otherwise may be inadmissible in some instances becomes admissible in order to explain conduct.’ [Cit.]” Hamilton v. State, 146 Ga. App. 884, 886 (4) (247 SE2d 551) (1978).

8. The admission into evidence of two photographs of the victim is enumerated as error. Appellant urges that the photographs were not properly authenticated. The victim testified that he was the subject of the photographs, that they accurately reflected his condition immediately after the injury, and that they could not be of anyone else. “ ‘ “The quantum of evidence required to sufficiently identify photographs as true and accurate representations of what they purport to depict is a matter to be left within the discretion of the trial court. [Cits.]” [Cit.]’ [Cit.] The victim’s authentication of the photographs in the instant case as true and accurate depictions of his injury was sufficient.” Turner v. State, 181 Ga. App. 531 (353 SE2d 13) (1987).

9. Appellant enumerates as error the admission into evidence of a certain knife without a proper showing of a chain of custody and without proper identification.

“Although the [S]tate failed to establish a chain of custody, the guard who was stabbed positively identified the weapon. ‘Unlike fungible items, distinct physical objects which can be identified upon mere observation require no custodial proof for their admission.’ [Cits.] It was not error to admit the knife into evidence. [Cits.]” Weaver v. State, supra at 640 (la).

Decided January 23, 1990

Rehearing denied February 9, 1990

Glen A. Cheney, for appellant.

. Dupont K. Cheney, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.

10. On appeal, the alleged ineffective assistance of appellant’s trial counsel has been raised for the first time.

“Appellant did not raise the ineffectiveness issue when he originally sought an out-of-time appeal nor was the issue later raised in the trial court before the present appeal was brought. . . . [Therefore], pursuant to the authority of Bell v. State, [259 Ga. 272 (381 SE2d 514) (1989)], we are constrained to hold that appellant has waived the right to raise the ineffectiveness issue in the context of the present appeal.” Smith v. State, 192 Ga. App. 246, 247 (2) (384 SE2d 451) (1989).

Judgments affirmed.

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


author: Banke, Presiding Judge.

text:
    A89A2186.
    BAKER et al. v. G. T., LTD.
    (391 SE2d 1)
   Banke, Presiding Judge.

The appellee, G. T., Ltd., initiated a dispossessory action against the appellants, H. Jac Baker and Martex, Inc., in magistrate court. The appellants counterclaimed to recover damages for wrongful eviction, demanded a jury trial, and moved to transfer the case to state court.

By consent of the parties, an “interim order” was thereafter entered by the magistrate scheduling the possession claim for trial but stating that the counterclaim would be transferred. At the conclusion of the possession trial, the magistrate entered a judgment granting possession of the premises to the appellee and transferring the counterclaim to state court. Included, in the transfer order, however, was a proviso that the costs of the action were to be taxed against appellant Baker, who, since Martex, Inc., had never been incorporated, was determined to be the only viable defendant in the case. Approximately a month later, the magistrate entered an “Order Confirming Dismissal of Defendants’ Counterclaim,” stating that because the appellants had failed to comply with a letter from the clerk directing them to pay both a $3 fee for preparation of the record and a $50 transfer fee within 20 days, their counterclaim “stood automatically dismissed without prejudice, pursuant to the Uniform State Court Rules. . . .”

Following the entry of the latter order, the appellants filed an appeal to the state court, which entered an “Order Dismissing Appeal and Confirming Plaintiff’s Right of Immediate Execution of Writ of Possession.” The latter ruling was based on the court’s conclusion that the dispute over possession had been “rendered moot by the fact that the defendants/appellants ha[d] failed to pay into the registry of the [court] rent required to be paid during the pendency of th[e] appeal. . . .” However, the court offered no explanation for its failure to reach the merits of the appeal insofar as it concerned the dismissal of the appellants’ counterclaim. We granted the appellants’ application for a discretionary appeal to this court. See generally OCGA § 5-6-35. Held:

1. It is apparent without dispute from the record that the appellants have failed at all times relevant to these proceedings to pay rent into the registry of the court pursuant to OCGA §§ 44-7-54 and 44-7-56. The order of the state court confirming the appellee’s right to possession of the premises is accordingly affirmed. See OCGA § 44-7-54 (b); Marshall v. U. S. Mgmt. Corp., 149 Ga. App. 141, 143 (253 SE2d 818) (1979).

2. We conclude, however, that the state court erred in dismissing the appeal insofar as it dealt with the magistrate’s order confirming the “automatic” dismissal of the counterclaim. This ruling by the magistrate was evidently based on Rule T-10 of the Uniform Transfer Rules, reported at 251 Ga. 893, 894, which specifies that an order transferring an action shall “provide notice to the plaintiff that if costs are not paid within twenty (20) days as provided in Rule T-ll, the case shall automatically stand dismissed without prejudice.” However, Rule T-ll specifically states that it “shall not be applicable in Magistrate Courts.” Also, Rule T-10 specifies that the $50 transfer fee is not applicable in magistrate courts. Accordingly, we can find no legal basis for the magistrate’s conclusion that the counterclaim “stood automatically dismissed” by operation of law due to the appellants’ failure to pay costs.

3. The appellants’ remaining arguments concern rulings of the magistrate court which were not reviewed by the state court. As the present appeal is from the judgment entered by the state court rather than the judgment entered by the magistrate court, we are without jurisdiction to address these rulings. See generally OCGA § 15-10-41 (b).

Judgment affirmed in part and reversed in part.

Sognier and Pope, JJ., concur.

Decided January 22, 1990

Rehearing denied February 9, 1990

Robert M. Goldberg, for appellants.

Arnall, Golden & Gregory, James A. Gober, Edward S. Sams', for appellee.

On Motion for Rehearing.

On motion for rehearing, the appellants contend that they should not have been required to pay rent into the registry of the court as a condition precedent to appealing the issuance of the dispossessory warrant, because the appellee had by then already retaken possession of the premises. Of course, if that is true, then, as acknowledged by the appellants in their motion for rehearing, “the writ of possession was moot at the time the court authorized execution thereof.” The motion for rehearing is accordingly denied.


text:
    A89A1762.
    PHILPOTT v. THE STATE.
    (390 SE2d 664)
   Cooper, Judge.

Appellant was convicted of driving under the influence of alcohol, i.e., driving a moving vehicle while there was .12 percent or more by weight of alcohol in her blood. See former OCGA § 40-6-391 (a) (4). She contends on appeal that the trial court erred in denying her motion to suppress all evidence of intoxication and in denying her motion for mistrial made during the solicitor’s closing argument.

1. At the hearing on the motion to suppress, the deputy sheriff who arrested appellant testified that while he was patrolling on December 31, 1988, he received a dispatch from “911” to be on the lookout for a suspected drunk driver in a dark-colored Camaro with flashing lights around the car tag, traveling north on Youngs Mill Road. The deputy spotted a black Camaro that fit the broadcast description on Youngs Mill Road and saw it pull over onto the shoulder of the road. He pulled in behind the stopped car, approached the car, and asked to see the driver’s license and proof of insurance. He then detected the odor of alcohol and subsequently arrested the driver, appellant, for driving under the influence. Appellant testified that she stopped her blue Camaro when she saw the deputy’s flashing blue lights behind her. The trial court found that a stop had been made, and that the stop was supported by probable cause.

Decided February 9, 1990.

Kenneth L. Gordon, for appellant.

Robert B. Whatley, Solicitor, Daniel W. Lee, Assistant Solicitor, for appellee.

“ ‘Theoretically, there are at least three kinds of police-citizen encounters: verbal encounters involving no coercion or detention; brief “stops” or “seizures” which must be accompanied by a reasonable suspicion; and “arrests” which must be supported by probable cause.’ ” Miranda v. State, 189 Ga. App. 218 (1) (375 SE2d 295) (1988) . The trial court’s finding that the deputy sheriff stopped appellant is supported by evidence in the record; however, only a “reasonable suspicion” is necessary to make a constitutionally acceptable stop. McAdoo v. State, 164 Ga. App. 23, 27 (295 SE2d 114) (1982). When the deputy sheriff spotted a car matching the description of a vehicle which was the subject of a broadcast lookout, he had a sufficient reasonable suspicion to make a constitutionally permissible stop of the car. See Pinkston v. State, 189 Ga. App. 851 (1) (377 SE2d 864) (1989) ; Franklin v. State, 143 Ga. App. 3 (1) (237 SE2d 425) (1977). The trial court did not err in denying appellant’s motion to suppress.

2. Appellant also contends the trial court erred by denying her motion for mistrial which followed allegedly improper remarks made by the solicitor during his closing argument. The trial court instructed the jury to disregard the offending argument and denied appellant’s motion for mistrial.

“ ‘In passing on a motion for mistrial because of an improper statement of a prosecutor, the trial judge may take such action as in his judgment will prevent harm to the defendant, and a new trial will not be granted unless it is clear that such action failed to eliminate the statement from consideration by the jury.’ [Cit.]. ‘The extent of a rebuke and instruction is within the discretion of the court, and when . . . the improper remarks are cured by timely corrective action calculated to preserve the defendant’s right to a fair trial, then we cannot say that the court abused its discretion in refusing to grant a mistrial.’ [Cit.]” Horah v. State, 173 Ga. App. 306 (4) (325 SE2d 917) (1985).

Judgment affirmed.

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


text:
    A89A1805.
    PRICE v. THE STATE.
    (390 SE2d 663)
   Birdsong, Judge.

Johnny Price, Jr., appeals his conviction for aggravated assault and burglary in an incident involving an attempted rape. He appeals on grounds the victim’s identification testimony was unreliable under the totality of circumstances under Robinson v. State, 180 Ga. App. 248, 249 (348 SE2d 761) because the victim had inadequate opportunity to view her attacker, and because she gave uncertain and conflicting identification accounts. Further, he contends the trial court erred in failing to quash a search warrant by which a leg hair was obtained from appellant. Held:

1. The victim testified that about 1:00 a.m. on a rainy July 25, 1987, she was awakened in bed by a nude white man crouching over her, with his hand on her throat, who demanded that she not say a word or she would be killed. The man had a nylon stocking over his face. She screamed and he fled. She saw his face and brown hair through the stocking mask and, by a light that was on in the living room near her bedroom door, saw his silhouette. She called the police immediately. Appellant was arrested 2.7 miles from her apartment by an officer responding to the call. Appellant was driving fast; he cut through a parking lot, and the officer, observing an expired license tag on appellant’s car, stopped him. Appellant had muddy tennis shoes and no socks; his pants legs were wet and there was a puddle of water on his floorboard.

Outside the victim’s first floor apartment, police found a pair of men’s underwear and a grey tube sock, and a nylon stocking lying on the ground; although there were puddles of water from recent rains, these articles were dry. Police found a knife and several pairs of tube socks in appellant’s car.

Appellant admitted to a guilty plea on a previous rape charge, where that victim had testified she had discovered appellant nude in her closet with a knife in his hand, and with his face partially covered by a bandanna. Appellant also admitted he had previously been to the Atlanta apartment complex where the victim in this case lived.

The victim identified appellant in a lineup, and at trial. We find no merit in appellant’s contentions that the victim’s testimony was inherently unreliable because she could not have seen the intruder clearly through the stocking mask and in the dim light, and because she could not give a physical description immediately after the incident.

The investigating officer testified that when the victim was questioned she was hysterical, very incoherent and really “scared to death.” Her inability to give a facial physical description of her attacker at that point does not, per se, render her later identifications inherently unreliable under State v. Robinson, supra. Whether any inconsistencies in her later descriptions were resolved is a question for the jury, as was her credibility in having identified appellant in a lineup and in court. If she gave any inconsistent description, she was available for cross-examination and impeachment on those points, and any inconsistency affected her credibility and the weight of evidence;- it did not render her identification as inherently unreliable. See Evans v. State, 188 Ga. App. 379, 381 (373 SE2d 70).

Decided February 9, 1990.

George R. Asinc, for appellant.

Thomas J. Charron, District Attorney, Frank R. Cox, Nancy I. Jordan, Debra H. Bernes, Assistant District Attorneys, for appellee.

2. Appellant contends the search warrant, which required a leg hair be taken, was invalid because he was not under arrest or in custody, and because it forced him to incriminate himself. See, e.g., State v. Armstead, 152 Ga. App. 56, 57 (262 SE2d 233).

In Armstead, supra, we held inadmissible a voice exemplar. We found a distinction between forcing an accused to do an act, and compelling him to submit to an act. “[T]he latter .‘takes evidence from the defendant’ [Creamer v. State, 229 Ga. 511 (2) (192 SE2d 350)], and is constitutionally acceptable, the former compels the defendant, in essence, to give evidence which violates an individual’s right not to incriminate himself.” State v. Armstead, supra, p. 56. By this reasoning, appellant Price was not compelled to incriminate himself in violation of constitutional rights.

The search warrant was properly supported and made out and was valid; appellant’s arguments notwithstanding, we know of no requirement that a suspect be under arrest or in custody when a proper search warrant is sought and executed.

Judgment affirmed.

Deen, P. J., and Cooper, J., concur.


text:
    A89A1899.
    A89A1900.
    A89A1901.
    GELLNER et al. v. ABRAMS et al. ABRAMS v. GELLNER et al. VANDIVER v. GELLNER et al.
    (390 SE2d 666)
   Banke, Presiding Judge.

Molly Abrams instituted a wrongful-death action against Mr. and Mrs. Richard Gellner, Jr., individually and as guardians of their minor son, Richard Gellner III, to recover for the loss of her daughter, Abigail, who had been attacked and killed by Richard. Abigail’s father, Robert Vandiver, was allowed to intervene in the action as a co-plaintiff. The case is before us pursuant to our grant of an interlocutory appeal from the denial of Mr. and Mrs. Gellner’s motion for summary judgment on the issue of their personal liability. The plaintiffs have filed cross-appeals, seeking to overturn a ruling by the trial court that the Gellners could not be considered guilty of negligence per se in connection with the homicide on the basis of evidence that they had violated Georgia’s statutory prohibitions against child abuse with respect to their treatment of Richard.

At the time of the incident, Richard was 15 years of age and had just finished performing yard work at the decedent’s home. According to his own account of the incident, he entered her house to use the phone, saw her in a “short” bathrobe and became sexually excited. When she resisted his advances, he brutally attacked and killed her. He thereafter pled guilty but mentally ill to an indictment for murder and was sentenced to life imprisonment. Held:

1. “It is well settled that by common law and in this state unless changed by statute, parents are not liable in damages for the torts of their minor children merely because of the parent-child relationship [. W]hen liability exists it is based on a principal-agent or a master-servant relationship where the negligence of the child is imputed to the parent, or it is based on the negligence of the parent in some factual situation such as allowing the child to have unsupervised control of a dangerous instrumentality.” Hill v. Morrison, 160 Ga. App. 151 (286 SE2d 467) (1981).

The Gellners are not alleged to be liable to the plaintiffs on the theory that their son was acting on their behalf at the time of the incident or was using a dangerous instrumentality furnished by them, but are alleged to be liable simply for failing to anticipate and prevent his violent behavior. “[T]he standard for imposing liability upon a parent for failing to prevent the child’s action is whether the parent knew of the child’s proclivity or propensity for the specific dangerous activity.” (Emphasis supplied.) Jackson v. Moore, 190 Ga. App. 329, 330 (378 SE2d 726) (1989).

The Gellners averred without contravention in affidavits submitted in support of their motion for summary judgment that their son had not, to their knowledge, displayed any violent or vicious propensities prior to his attack on the decedent. Although he was treated at a psychiatric hospital following the murder, such after-the-fact evidence clearly does not prove prior knowledge by them of his potential for violence. See Dunaway v. Kaylor, 127 Ga. App. 586 (194 SE2d 264) (1972).

In Jackson v. Moore, supra, this court reversed a denial of summary judgment to a parent who was being sued for injuries inflicted by her 16-year-old son while driving her car without her permission. The evidence in that case showed that the son had taken the keys to the car from the defendant’s purse without her knowledge. We held that a fact issue as to the defendant’s awareness of her son’s propensity to steal cars was not created by her awareness that he had a juvenile record for such offenses as burglary, shoplifting, and conspiracy to commit theft.

Decided February 9, 1990.

Downey, Cleveland, Parker & Williams, Y. Kevin Williams, for Gellners.

James H. Lewis, for Abrams.

Thomas M. West, for Vandiver.

In the present case, there is no evidence of record which controverts the Gellners’ testimony that they were without prior knowledge of any tendency or proclivity on their son’s part to engage in the sort of violent behavior which resulted in the decedent’s tragic death. Accordingly, we must conclude that their motion for summary judgment should have been granted.

2. In their cross-appeals, the plaintiffs contend that the Gellners may be considered guilty of negligence per se under the theory that they caused their son to become mentally ill by engaging in child abuse and cruelty towards him in contravention of OCGA §§ 19-14-1 and 16-5-70. However, in order for the violation of a statute to constitute negligence per se, the injured person must fall within the class of persons the statute was intended to protect, and the harm complained of must be the type of harm the statute was intended to guard against. Central Anesthesia Assoc. v. Worthy, 173 Ga. App. 150, 153 (325 SE2d 819) (1984), aff’d 254 Ga. 728 (1985). See also Gulf Oil Corp. v. Stanfield, 213 Ga. 436, 437 (99 SE2d 209) (1957). The Gellners’ alleged abuse of their son clearly violated no statutory duty owed by them to the decedent. We accordingly hold that the trial court was correct in granting their motion for summary judgment on this issue.

Judgment reversed in Case No. A89A1899. Judgment affirmed in Case Nos. A89A1900 and A89A1901.

Sognier and Pope, JJ., concur.


text:
    A89A2115.
    ROYAL v. HARRINGTON.
    (390 SE2d 668)
   Cooper, Judge.

On August 30, 1988, appellee/client Harrington filed suit against appellant/attorney Royal, alleging legal malpractice. We granted appellant’s application for interlocutory review of the trial court’s denial of appellant’s motion to dismiss, which was based on the expiration of the period of limitation. In his complaint, appellee averred that he had hired appellant to represent him in the sale of his business and that, on September 14, 1984, appellant had filed in the wrong county the financing statement executed by the purchaser. The financing statement assigned property valued at $92,138.60 to appellee to secure payment of the note. The purchaser subsequently defaulted on its note to appellee and, because appellant had allegedly filed the financing statement in the wrong county, appellee’s lien was inferior to another properly filed lien. Appellee alleged that appellant’s failure to exercise a reasonable degree of skill and care had damaged appellee in the amount of $92,138.60.

Decided February 9, 1990.

Richard D. Phillips, J. Kenneth Royal, for appellant.

Boatright & Futch, Jimmy J. Boatright, for appellee.

“It has long been the law in this state that a cause of action for legal malpractice, alleging negligence or unskillfullness, sounds in contract (agency) and, in the case of an oral agreement, is subject to the four-year statute of limitation in OCGA § 9-3-25. (Cits.)” Ballard v. Frey, 179 Ga. App. 455 (3) (346 SE2d 893) (1986). See also Ekern v. Westmoreland, 181 Ga. App. 741 (353 SE2d 571) (1987). “ ‘In Georgia legal malpractice is based upon the breach of a duty imposed by the attorney-client contract of employment, and as such, the applicable statute of limitation is four years.’ ” Loftin v. Brown, 179 Ga. App. 337 (1) (346 SE2d 114) (1986). As was the case in Ballard v. Frey, supra, “[appellee] in the instant case does not seek tort damages for any ‘injuries to the person’ within the ambit of OCGA § 9-3-33. He seeks only those damages alleged to be the result of [appellant’s] negligent breach of his contract of employment. [Cits.]” Id. at 459. Thus, the two-year period of limitation for injury to the person is not applicable. Id. See also Loftin v. Brown, supra. Despite dicta to the contrary in Loftin, this is a suit on a contract, albeit for negligent breach of the contract.

“ ‘(A)n action for attorney malpractice accrues and the period of limitations begins to run, from the date of the attorney’s breach of duty, that is, from the date of the alleged negligent or unskillful act.’ [Cit.]” Loftin v. Brown, supra, Div. 1. Inasmuch as appellee alleged that appellant was negligent on September 14, 1984, the date the financing statement was allegedly misfiled, and the lawsuit was filed on August 30, 1988, within four years of the date of the alleged negligent or unskillful act, the trial court did not err in denying appellant’s motion to dismiss.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A89A2299.
    McDONALD et al. v. WINN.
    (390 SE2d 890)
   McMurray, Presiding Judge.

Plaintiff, a builder, brought suit against defendants seeking damages in the amount of $19,555.95 for breach of a home construction contract. Plaintiff also sought expenses of litigation pursuant to OCGA § 13-6-11. Defendants denied any liability to plaintiff and counterclaimed, asserting plaintiff negligently constructed their home.

The case proceeded to trial and, following plaintiff’s presentation of the evidence, defendants moved for a directed verdict with regard to plaintiff’s expenses of litigation claim. The trial court granted defendants’ motion. Thereafter, during defendants’ presentation of the evidence, plaintiff sought the reconsideration of defendants’ directed verdict motion and the trial court announced that it would charge the jury concerning expenses of litigation (thereby, in effect, denying defendants’ motion for a directed verdict). The trial court so charged the jury and, following deliberations, the jury returned a verdict in favor of plaintiff and against defendants in the amount of $19,500 (representing general damages) and $9,500 (representing expenses of litigation). Judgment was entered accordingly and defendants moved for a new trial. In the meantime, plaintiff moved to require defendants to pay expenses pursuant to OCGA § 9-11-37 (c) on the ground that it was necessary for plaintiff to prove the genuineness of the written contract signed by the parties.

Following a hearing, the trial court denied defendants’ motion for a new trial and granted plaintiff’s motion to require defendants to pay expenses. With regard to the latter motion, however, the trial court ruled: “[B]ecause the award of expenses of litigation by the jury encompasses all of the expenses sought by Plaintiff in this motion, Defendants shall not be required to pay an additional amount of expenses under O.C.G.A. § 9-11-37 (c) because such would effect a duplication of expenses.” Defendants appeal. Held:

1. Contending evidence needed to support the award of litigation expenses is lacking, defendants assign error upon the trial court’s denial of their motion for a new trial and the trial court’s charge regarding the recovery of bad faith damages. In our view, the trial court properly denied defendants’ new trial motion and properly charged the jury regarding bad faith damages because the evidence was sufficient to permit the jury to find bad faith on. the part of defendants.

OCGA § 13-6-11 provides for expenses of litigation “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” “ ‘(T)he statutory bad faith must have arisen out of the transaction on which the cause of action is predicated rather than defendant’s conduct in defending the case. (Cits.)’ Id. ‘(B)ad faith . . . other than mere refusal to pay a just debt may authorize the jury to award attorney fees, provided it is not prompted by an honest mistake as to one’s rights or duties but by some interested or sinister motive.’ Jordan Bridge Co. v. I. S. Bailey, Jr., Inc., 164 Ga. App. 124, 125 (296 SE2d 107) (1982). Our recent decision in Glen Restaurant v. West, 173 Ga. App. 204 (325 SE2d 781) (1984), recites that ‘there may be bad faith in carrying out the provisions of the contract sufficient to support the award, . . .’” Associated Software Consultants Organization v. Wysocki, 177 Ga. App. 135, 136 (1) (338 SE2d 679).

In the case sub judice, we find that defendants denied the existence of a written contract, offering instead, an oral contract. We also find evidence that defendants procured a number of changes and upgrades and, shortly before the loan was closed, they refused to pay for them. In our view, these circumstances justify a finding of bad faith. Hayes Constr. Co. v. Thompson, 184 Ga. App. 482, 483 (2) (361 SE2d 865); Associated Software Consultants Organization v. Wysocki, 177 Ga. App. 135, 136, supra. Thus, it cannot be said that the trial court erred in denying defendants’ motion for a new trial or in charging the jury regarding bad faith damages.

2. Defendants also contend the trial court erred in denying their motion for a new trial and charging the jury regarding bad faith damages because a bona fide controversy existed as to whether plaintiff properly completed the contract. This contention is without merit. If, as here, there is bad faith in the making or performance of the contract, attorney fees are authorized regardless of whether a bona fide controversy otherwise existed between the parties. See Backus Cadillac-Pontiac v. Brown, 185 Ga. App. 746, 747 (365 SE2d 540).

3. Next, defendants argue that the trial court erred in ultimately denying their motion for a directed verdict because evidence of bad faith was not adduced until defendants presented their case. In other words, defendants argue that their motion for a directed verdict was meritorious because plaintiff failed to introduce any evidence of bad faith before resting his case-in-chief. This argument does not withstand judicial scrutiny. “Even if the trial judge erroneously failed to direct a verdict at the conclusion of the plaintiffs’ evidence if thereafter evidence be admitted without objection, which, when considered with evidence previously admitted, makes out a case in favor of the plaintiffs, and the jury under proper instructions renders a verdict for the plaintiffs, it would be substituting procedure and form for substance to say that the case ought to be reversed and a new trial granted. To establish such a rule would manifestly be contrary to the intent of the Civil Practice Act and of the Appellate Practice Act and also contrary to the rule which prevailed in this State with respect to motions for nonsuit under the former practice.” Young v. Wiggins, 229 Ga. 392 (1) (191 SE2d 863). Accord Able-Craft v. Bradshaw, 167 Ga. App. 725, 726 (1) (307 SE2d 671).

Decided February 9, 1990.

Jack F. Witcher, John E. Gilchrist, for appellants.

Jeffrey B. Talley & Associates, Jeffrey B. Talley, for appellee.

4. Without citation of authority, defendants assert that an award of expenses of litigation pursuant to OCGA § 13-6-11 must be limited to an amount pertaining to a particular issue. Thus, defendants would have us rule, for example, that if they were in bad faith in denying the existence of the written agreement, only those expenses incurred in connection with proof of the written agreement should be awarded. We find no such limitation in OCGA § 13-6-11 and we will not impose one. In our view, a party acting in bad faith should pay the full price for losing. See generally Buffalo Cab Co. v. Williams, 126 Ga. App. 522, 525 (191 SE2d 317).

5. Defendants contend the trial court erred in granting plaintiff’s motion to require defendants to pay expenses pursuant to OCGA § 9-11-37 (c). This contention is without merit. Although the trial court granted plaintiff’s motion, it did not award plaintiff additional expenses of litigation pursuant thereto. Accordingly, any error in granting plaintiff’s motion must be deemed harmless. See generally Steed v. Steel Prods. Mfg. Co., 152 Ga. App. 350, 352 (3) (262 SE2d 616).

Judgment affirmed.

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


text:
    A90A0240.
    STEERMAN v. AMERICAN STATES INSURANCE COMPANY.
    (390 SE2d 669)
   Birdsong, Judge.

This appeal concerns the grant of summary judgment to Maria Gutierrez on Steerman’s claims against Gutierrez arising from an automobile accident. American States Insurance Company is Steerman’s uninsured motorist insurance carrier and has filed pleadings in Gutierrez’ name since she has apparently left the country and cannot be served with process.

Steerman’s complaint alleged that Gutierrez caused the accident by stopping her car in a blind curve negligently and in violation of OCGA § 40-6-202, prohibiting stopping vehicles on roadways outside of a residential or business district unless there is visibility for 200 feet in each direction. American States answered in Gutierrez’ name and after conducting discovery moved for summary judgment contending that Gutierrez actions were legal and proper and therefore she could not be held liable. Steerman now appeals from the grant of that motion. Held:

Steerman’s deposition and affidavit in opposition to the motion show that on the day of the collision she was driving on a state highway in a heavy rain, a downpour, at about 35 mph when she came around a blind curve and saw Gutierrez’ car stopped two or three car lengths away. She applied her brakes, but could not stop without hitting Gutierrez’ car because her car fishtailed and slid on the wet road, and she could not avoid the accident because of woods and a ditch on the side of the road. She testified that Gutierrez’ car was stopped at an angle across the road blocking the entire lane of travel. Steerman also testified that she did not see any oncoming traffic, and while she remembered seeing the tail light on Gutierrez’ car, she did not remember seeing a turn signal.

The motion for summary judgment was supported in part by the affidavit of a person claiming to be a witness to the accident. The affidavit stated that he was driving in the opposite lane of traffic approaching the accident site and saw Gutierrez’ car stopped in the other lane with its left turn signal on waiting for traffic to clear to turn left. The motion was also supported by an affidavit and certain property tax records purporting to show that the site of the accident was in a residential district.

To prevail as a defendant moving for summary judgment, Gutierrez must show there were no issues of material fact and she was entitled to judgment as a matter of law. OCGA § 9-11-56 (c). She was required to pierce Steerman’s pleadings by negating at least one of the essential elements of the complaint (Corbitt v. Harris, 182 Ga. App. 81 (354 SE2d 637)), and by establishing as a matter of law that Steerman could not recover under any theory of recovery fairly drawn from the pleadings and evidence. Reed v. Adventist Health Systems &c., 181 Ga, App. 750, 752 (353 SE2d 523).

Although the motion contended Gutierrez’ actions were legal and proper, that characterization would only entitle Gutierrez to summary judgment if reasonable minds could not disagree (North v. Toco Hills, 160 Ga. App. 116, 119 (286 SE2d 346)) she established by plain, palpable and indisputable evidence (Leonard v. Bleser, 184 Ga. App. 600, 601 (362 SE2d 68)) her actions did not constitute negligence or were in no way the proximate cause of the collision. Ryder Truck Rental v. Carter, 189 Ga. App. 43, 44 (374 SE2d 830).

Further, we must be mindful that our law generally favors a jury determination of the issues (Showalter v. Villa Prado Assoc., 182 Ga. App. 705 (356 SE2d 895)), and the general rule is issues of negligence and causation are not appropriate for summary adjudication. Smith v. Southeastern &c. Ins. Co., 258 Ga. 15, 16 (365 SE2d 105). Moreover, the evidence must be construed in Steerman’s favor, giving her the benefit of all reasonable doubts and reasonable inferences (McNish v. Gilbert, 184 Ga. App. 234 (361 SE2d 231)), and against Gutierrez. Jonesboro Tool &c. Corp. v. Ga. Power Co., 158 Ga. App. 755 (282 SE2d 211).

Decided February 9, 1990.

Scheer & Eisner, Robert A. Eisner, Wayne Chatham, for appellant.

Webb, Carlock, Copeland, Semlar & Stair, Douglas W. Smith, Paul Vancil, for appellee.

In light of these principles and the cardinal rule that on motions for summary judgment courts can neither resolve the facts nor reconcile the issues (Fletcher v. Amax, Inc., 160 Ga. App. 692, 695 (288 SE2d 49)), we cannot conclude that summary judgment was properly granted. Only by accepting as fact the statements in the affidavit of the opposing driver can one conclude that Gutierrez was stopped waiting for traffic to clear to turn left. Since Steerman’s deposition states there was no oncoming traffic, this contradiction raises a question of credibility which must be decided by the jury. OCGA § 24-9-80.

Further, the other driver cannot testify Gutierrez was waiting for oncoming traffic to clear to turn left because it was not within his personal knowledge. OCGA § 9-11-56 (e). That, however, does not make this whole affidavit defective. Henry v. Polar Rock &c. Corp., 143 Ga. App. 189, 190 (237 SE2d 667). He could infer that she intended to do so from his observation that her left turn signal was on. This would not be conclusive since, in addition to whether he was present and could observe the turn signal in the first instance, Steer-man testified that while she remembered seeing Gutierrez’ tail lights, she did not remember seeing her turn signal. Therefore, giving Steer-man the benefit of the doubt and all favorable inferences, we cannot conclude that Gutierrez was stopped, signalling and waiting to turn left.

Further, even if one were to reach that conclusion, that would not entitle Gutierrez to summary judgment for we are still left with the question whether it was negligence for Gutierrez to stop her car on a state highway on an angle completely blocking the lane of travel in a downpour and in a blind curve. Under our law that is a question for the jury, and summary judgment was granted improperly.

In view of our disposition of this issue, we have not considered whether OCGA § 40-6-202 is inapplicable to these facts as a matter of law.

Judgment reversed.

Banke, P. J., and Cooper, J., concur.


text:
    A89A1644.
    ROSS v. THE STATE.
    (390 SE2d 671)
   Birdsong, Judge.

Ross appeals his conviction of aggravated assault. He contends the trial court erred by denying his motion for a mistrial and by admitting in evidence a letter that was not properly authenticated. Held:

1. The second enumeration alleges the trial court erred by admitting in evidence without proper authentication a handwritten letter to the victim purportedly from Ross. At trial the State contended the letter was authenticated by its postmark, its return address, and the victim’s testimony she received the letter in the normal course of the mail. On appeal, the State contends the letter was authenticated by the circumstantial evidence of the postmark, the return address, the relationship between the parties, the repeated identification of the letter by the victim, and the contents of the letter.

Examination of the letter and its envelope show an envelope addressed to the victim with a return address of: “Mr. Leroy Ross” at an address in Milledgeville which the prosecutor said in argument was the county jail. The postmarks on the envelope, however, were not from Milledgeville. One was from Macon, and the other from Haddock, Georgia.

The letter has three pages, one in cursive script and the other two hand-printed. Although the hand-printed pages indicate someone other than Ross printed them, no such statement is made about the other page of the letter. The letter asked the victim to tell the authorities she made a mistake or to refuse to attend the trial, and offered to pay the victim $200 if she would do so.

No witness was asked whether the handwriting was appellant’s, and no expert was called. The only testimony about the letter was by the victim stating she received the letter from appellant in the normal course of the mail. Relying on this testimony and the return address, the trial court admitted the letter. This was error. See generally OCGA § 24-7-7. “A writing, alleged to be in the handwriting or signature of a party, is inadmissible unless the writing is proved or acknowledged to be genuine.” Gunter v. State, 243 Ga. 651, 657 (256 SE2d 341). Although the genuineness of a writing may be proved by circumstantial evidence (State v. Smith, 246 Ga. 129 (269 SE2d 21); Gunter v. State, supra), this cannot be done solely by the face of the letter itself. Burgess v. Simmons, 207 Ga. 291, 296 (61 SE2d 410). Since the only things indicating this letter was from Ross were the return address and the victim’s testimony she received it in the mail, this was not sufficient authentication.

Decided February 12, 1990.

Jones & Geeter, Shane M. Geeter, for appellant.

Joseph H. Briley, District Attorney, Al Martinez, Assistant District Attorney, for appellee.

The State contends that any error was harmless because there was no prejudice to appellant. We cannot agree. Nor can we accept the State’s assertion that the letter was neither inculpatory, exculpatory, nor inconsistent with appellant’s defense. Although other witnesses testified, the case rested on the victim’s version of the events. One reading the letter could conclude Ross recognized that unless the victim recanted her accusation or refused to testify he would to go jail. In these circumstances, the letter was inculpatory, and considering the evidence in this case, we cannot conclude it was not prejudicial. Accordingly, the judgment must be reversed.

2. In view of the disposition of the second enumeration, we need not address the first error asserted.

Judgment reversed.

Deen, P. J., and Cooper, J., concur.


text:
    A89A1827.
    THE STATE v. BROOKS.
    (390 SE2d 673)
   Cooper, Judge.

On August 6, 1988, a police officer stopped the vehicle appellee was driving and issued to appellee uniform traffic citations for speeding, driving under the influence, and driving with a suspended license (OCGA § 40-5-121). The solicitor filed an accusation in October 1988, charging appellee with the same violations, to which accusation appellee filed a general demurrer in February 1989, contending that the count accusing him of driving with a suspended license was fatally defective. After conducting a hearing on the matter, the trial court granted the demurrer and dismissed that count of the accusation. The State appeals from the trial court’s action.

Appellee contended, and the trial court ruled, that the arresting officer’s failure to comply with OCGA § 40-5-121 (b) (1) (1988) resulted in a statutorily-mandated end to the prosecution. The version of OCGA § 40-5-121 (b) (1) in effect when the citations were issued and the accusation filed provided that “[t]he charge of driving with a suspended license shall not be made unless the arresting officer has verified a service date and such date is placed on the Uniform Citation.” It is undisputed that the arresting officer did not verify the service date and place it on the uniform traffic citation issued to appellee for driving with a suspended license. Thus, under the clear mandate of that version of the statute then in effect, no charge of driving with a suspended license could be made against appellant.

Decided February 12, 1990.

Ralph T. Bowden, Jr., Solicitor, N. Jackson Cotney, Jr., Judith C. Emken, Assistant Solicitors, for appellant.

William M. Davidson, Stephen P. Fuller, for appellee.

Actual or legal notice to the defendant of the suspension of his license is an element of the offense of driving while his license is suspended. State v. Orr, 246 Ga. 644 (272 SE2d 346) (1980). Requiring an officer to verify and record when a driver received actual or legal notice of the license suspension before charging the driver with driving while his license is suspended may, as the State believes, “produce absurd results.” However, the requirement at issue was the law of this State for nine months, and we may not sanction noncompliance because we perceive it to be unnecessary or cumbersome. Inasmuch as the Legislature has amended the statute, the “absurd result” has a definitively short life span.

The State argues that it was prosecuting appellee under OCGA § 40-5-121 (a), not § 40-5-121 (b). Subsection (a) sets forth the offense of driving while a license is suspended or revoked, and subsection (b) states when the charge of driving with a suspended license cannot be made. A prosecution must be made under subsection (a) since it sets forth the offense; however, no prosecution for driving with a suspended license can proceed without reference to and compliance with subsection (b). Subsection (a) cannot, as the State wishes, be read in a vacuum.

Judgment affirmed.

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

       The version of the statute now in issue was in effect from July 1, 1988 until April 10, 1989. The current statute requires such verification only where the license suspension is the result of a failure to respond to a citation (OCGA § 40-5-56) or an insurance cancellation. See OCGA § 40-5-121 (b) (1) (1989); Ga. L. 1989, p. 519, § 15.


text:
    A89A1919.
    EDGE v. THE STATE.
    (391 SE2d 18)
   Cooper, Judge.

After pleading guilty to burglary, appellant was sentenced to 20 years of probation, the first 60 to 120 days of which were to be served at a specific probation detention center. The sentence was reduced to writing, signed by the trial judge, and filed. Appellant then executed all the necessary probation documents. The trial court subsequently conducted a hearing at which it declared that the probation detention center had refused to accept appellant, and then resentenced appellant to 20 years, three to serve, 17 to be probated. This appeal is from that sentence.

“The law is clear. Once a defendant begins to serve his sentence it may not be increased. [Cit.]” Higdon v. Cooper, 247 Ga. 746 (279 SE2d 451) (1981). This court has held that a defendant enters upon service of a probated sentence by meeting with a probation officer after the sentence is imposed. Fowler v. State, 188 Ga. App. 873 (7) (374 SE2d 805) (1988). It is clear, therefore, that appellant had entered upon the service of his sentence prior to the trial court’s attempts to increase the sentence. The second sentence was, therefore, void. Inman v. State, 124 Ga. App. 190 (1) (183 SE2d 413) (1971).

The State’s and the trial court’s reliance on Castillo v. State, 178 Ga. App. 312 (5) (342 SE2d 782) (1986), is misplaced. There, unlike the situation in Fowler, Inman, and the present case, there was no indication that the defendant had met with a probation officer and thereby entered into service of his sentence. The State’s argument that appellant waived appellate review of this issue by choosing the three years to serve and 17 on probation instead of the 10 years to serve which the trial court offered if appellant insisted on challenging the second sentence is without merit: both the alternatives offered were equally void.

Although it appears that the condition of probation that appellant serve part of the period of probation in a specified probation detention center is not capable of performance since the detention center would not accept appellant, the remedy was not to scrap the whole sentence and give appellant an increased period of incarceration. Instead, the trial court would have authority to modify the sentence so long as the modification did not constitute an increase in the sentence. Schamber v. State, 152 Ga. App. 196 (3) (262 SE2d 533) (1979). Accordingly, we reverse the sentence imposed on appellant and remand with direction that a sentence be entered which does not reflect an increase in punishment.

The State’s motion to dismiss the appeal for failure of appellant to file a brief and enumeration of error is denied: although the brief and enumeration of error were tardily filed, their lateness did not delay the consideration of the appeal.

Sentence reversed and case remanded with direction.

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

Decided February 12, 1990.

Garner, Willis, Sweat & Goldsmith, Willis A. Duvall, Jr., for appellant.

Britt R. Priddy, District Attorney, John L. Tracy, Assistant District Attorney, for appellee.


author: Sognier, Judge.

text:
    A89A2122.
    JONES v. SCARBOROUGH.
    (390 SE2d 674)
   Sognier, Judge.

Carolyn Jones brought an action against Jackie H. Scarborough to recover damages resulting from an automobile collision. The jury returned a verdict for Jones upon which judgment was entered. Apparently unsatisfied with the amount of the verdict, Jones appeals the denial of her motion for a new trial.

1. Appellant asserts two errors in the trial court’s treatment of the fact that she was not wearing a seat belt at the time of the accident.

(a) Appellant contends the trial court erred by allowing into evidence the deposition testimony of Dr. Leon Hubrich, appellee’s expert, regarding whether appellant’s injuries might have been reduced had she been wearing a seat belt-shoulder harness because, although Dr. Hubrich was a board certified orthopedist, no foundation was laid as to his expertise regarding the consequences of failure to wear seat belts. At his deposition, however, the only objection made was to the admissibility in general of any testimony as to the seat belt issue (in apparent reliance on OCGA § 40-8-76.1 (d), effective September 1, 1988 which, we note, is not applicable to this case).

OCGA § 9-11-32 (d) (3) (A) provides that as to the taking of a deposition, “[objections to the competency of a witness . . . are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.” “Extended discussion or citation of authorities is not required to demonstrate that if [appellant] had objected during the deposition to the absence of proof of the witness’ competence to testify as an expert [on the consequences of failure to use a seat belt], defense counsel might have been able to cure this ground of objection by proof of the witness’ qualifications. [Appellant] thus waived [her] right to raise this objection. [Cits.]” Andean Motor Co. v. Mulkey, 251 Ga. 32-33 (1) (302 SE2d 550) (1983). Accordingly, we find that the trial court did not err by admitting this deposition testimony. Contrary to appellant’s argument, City of Fairburn v. Cook, 188 Ga. App. 58, 67-68 (10) (372 SE2d 245) (1988) does not require a different result, because applying the standard in Cook to the facts sub judice, we find no abuse of the trial court’s discretion in this matter.

(b) Appellant also enumerates as error the trial court’s charge to the jury regarding her failure to use a seat belt, arguing that absent expert or other competent testimony linking appellant’s injuries with her failure to use a seat belt, the charge was not adjusted to the evidence and therefore improper. We do not agree with appellant that no competent evidence supported this charge. Dr. Hubrich testified that “a seat belt with a shoulder harness certainly diminishes the forward thrust of the body, and for that reason would diminish the potential problem of risk to the lumbar or to the thoracolumbar junction,” and that by wearing a seat belt with a shoulder harness “you do get correlatingly less injuries in general.” We find this testimony sufficient to support the charge given, in which the jury was instructed that if they found from the evidence that appellant’s failure to wear a seat belt “produced or contributed to ... at least a portion of her damages, then [they] would be entitled to consider whether the damages for which [appellee] may otherwise be liable should be reduced should [they] find [appellee] liable in any amount.”

Moreover, even if the charge was erroneous, the error was harmless and would not require reversal because the jury was also charged as to comparative negligence, proximate cause, and pre-existing injuries as alternative bases for reducing damages, and because evidence was adduced supporting each of these charges the jury would have been authorized to reduce appellant’s damages on any of these grounds. See generally Williams v. Central of Ga. R. Co., 142 Ga. App. 523, 525-526 (6) (236 SE2d 498) (1977).

2. Appellant next contends the trial court erred by refusing to allow appellant to introduce into evidence certified copies of the official records of the U. S. Department of Commerce National Climatic Data Center and the National Weather Service showing the weather conditions at the Athens Municipal Airport at the date and time of the accident. One of the bases for the trial court’s exclusion of this documentary evidence was lack of proper foundation for its admission.

While no Georgia statute specifically governs the introduction into evidence of certified copies of federal documents, these may be admitted in Georgia courts provided the requisite common law procedures of proof of the authority and incumbency of the clerk having custody of the document and proof of the genuineness of the seal are followed. See Rice v. State, 178 Ga. App. 748-749 (1) (344 SE2d 720) (1986). (We note that substantial compliance with the federal procedure for the admission of these documents has been held to be the equivalent of satisfaction of common law procedure. Id. at 748.) The documents proffered by appellant are signed by the “meteorologist in charge” but do not indicate he was the custodian of the documents, and therefore the trial court did not err by excluding the documents on the basis that the proper foundation had not been laid for their admission.

3. Appellant finally raises error in the trial court’s treatment of her efforts to depose appellee’s retained accident investigator, David Fincher, as well as her attempt to subpoena him to testify at trial. Although we agree with appellant that the trial court erred in its rulings that no discovery or testimony was allowable from Fincher, nevertheless we find no basis for reversal.

In its ruling on appellant’s motion to compel discovery, the trial court found that Fincher was an “expert,” and since appellee did not intend to call Fincher as a witness at trial, OCGA § 9-11-26 (b) (4) (B) governed, and appellant had not made the showing of “exceptional circumstances” required for discovery under that section. Although it is true, as noted by the trial court, that “because of [Fincher’s] training and experience [he] possesses knowledge in the investigation field which is not common knowledge or known to the average citizen,” it is apparent that appellant would not have examined Fincher regarding surveillance techniques or investigatory practices, but rather about his observations of appellant, and possibly his conclusions as to those observations. Thus, for the purpose of this trial, Fincher was not an “expert” and OCGA § 9-11-26 (b) (4) (B) does not apply, and Fincher should have been treated as any other “fact” witness, excluding from discovery only his conclusions or other “work product.” See, e.g., Smith v. Smith, 223 Ga. 551, 554-556 (2) (a) (156 SE2d 916) (1967). Discovery of the facts observed by Fincher was permissible, and the trial court erred by prohibiting the discovery and excluding Fincher’s trial testimony on this matter. Sée generally Candler Gen. Hosp. v. Joiner, 180 Ga. App. 455, 457-459 (2) (349 SE2d 756) (1986).

Appellant’s purpose in deposing Fincher was “to find out what it was he had seen, what photographs he might have or what recordings he might have.” Appellant stated in her offer of proof that had she been allowed to call Fincher as a witness at trial, he would have detailed the dates and the period of time he observed appellant and that the evidence would show that Fincher never saw her pursuing any of the activities appellant had testified at trial that her injuries had prevented her from doing. Appellant claimed Fincher’s testimony would have corroborated her case and would have weighed greatly in her favor, especially since he had been retained by appellee. “[A]ny person not privileged having knowledge of issues being tried should be made available to the parties as [a witness].” Logan v. Chatham County, 113 Ga. App. 491, 492 (1) (148 SE2d 471) (1966). We agree with appellant that Fincher could have been deposed and questioned at trial about his observations of appellant and the fact that he never saw her engaging in activity which would belie her claim of injury, although the fact of his original employment by appellee was not pertinent and could not have been brought out. Id. at 492-493 (2). However, we find that the trial court’s error in preventing appellant from questioning Fincher as to these matters was harmless, not requiring reversal, because appellant herself, as well as her treating physicians, testified as to her injuries and the resulting restrictions on her activities. Thus Fincher’s testimony would have been merely cumulative. See generally In re N. S. M., 183 Ga. App. 398, 399-400 (2) (359 SE2d 185) (1987).

Decided February 12, 1990.

Scott & Quarterman, Howard T. Scott, Bradley S. Wolff, for appellant.

Blasingame, Burch, Garrand & Bryant, Andrew J. Hill III, Kardos, Warnes & McElwee, Stephen H. McElwee, for appellee.

Judgment affirmed.

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


text:
    A89A2131.
    ZILKA v. THE STATE.
    (391 SE2d 23)
   Cooper, Judge.

Appellant was convicted by a jury of child molestation. On appeal, his sole enumeration of error is that the evidence was not sufficient to support the conviction.

The seven-year-old victim testified that while sitting on appellant’s lap watching television, he unbuttoned her pants and put his hands inside her underpants and rubbed her “private,” then tried to “french kiss” her by putting his tongue in her mouth. “Although corroboration of the victim’s testimony is not necessary in a child molestation case [cit.], there was ample corroboration of the victim’s testimony in the res gestae evidence of the victim’s statements to others soon after the incident.” Bryson v. State, 192 Ga. App. 261, 263 (384 SE2d 456) (1989). The victim’s sister and another witness testified that immediately following the incident the victim told them what appellant had done to her. The two police officers, who were called to the scene, both testified that the victim told them what appellant had done. The evidence in this case was sufficient for a rational trier of fact to find appellant guilty of child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided February 12, 1990.

Clyde M. Urquhart, for appellant.

Glenn Thomas, Jr., District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

Appellant filed a supplemental brief attempting to raise errors. Since an enumeration of error may not be amended after the original filing time has expired, we decline to address the matters raised in appellant’s supplemental brief. Parham v. State, 166 Ga. App. 855 (2) (305 SE2d 599) (1983).

Judgment affirmed.

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


text:
    A89A2202.
    J. C. LEWIS MOTOR COMPANY v. GILES.
    (391 SE2d 19)
   Cooper, Judge.

This appeal follows our grant of appellant’s application for interlocutory review of the trial court’s order denying appellant’s motion to dismiss.

Appellee was injured when the car she was driving was struck by a car owned by appellant and driven by a 15-year-old youth. Appellee filed suit against appellant, a car dealership, alleging its agents and employees were negligent in leaving the keys to appellant’s car in a place accessible to the 15-year-old. In its answer, appellant averred that the collision had occurred after the car was stolen from appellant and raised the defense of failure to state a claim. Appellant subsequently filed a motion to dismiss based on OCGA § 9-11-12 (b) (6), which motion the trial court denied.

This case is controlled by a line of cases that includes Price v. Big Creek of Ga., 191 Ga. App. 534 (382 SE2d 356) (1989) and Dunham v. Wade, 172 Ga. App. 391, 392 (323 SE2d 223) (1984). “Mere ownership of an automobile involved in a collision may not be made the basis for holding an owner liable for the negligent operation of the automobile without showing that the defendant owner was guilty of some other negligent act which proximately contributed to the plaintiff’s injury. [Cit.] . . . The fact that the keys were left in the unguarded automobile would not authorize a recovery against the owner for the injuries which were the result of its subsequent negligent operation by a thief. [Cits.] The persons immediately responsible will be held to full liability; but persons only so remotely connected with the injury can not be held. [Cit.]” Id.

Appellee maintains that the trial court correctly denied the motion to dismiss since there was evidence that vehicles had previously been stolen from appellant. However, this court has ruled in the cases cited above that negligence which results in the theft of a vehicle later involved in a collision is not sufficient negligence to authorize a claim against the owner. Since appellee alleged only that appellant was negligent in permitting the car to be stolen, appellee stated no claim against appellant, and the motion to dismiss should have been granted.

Decided February 12, 1990.

Kennedy, Lewis, Smart & Brannon, Charles W. Brannon, Jr., for appellant.

Thomas J. Mahoney, Jr., for appellee.

Judgment reversed.

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


text:
    A89A2285, A89A2286.
    FLAGG v. REMCO ENTERPRISES, INC. (two cases).
    (390 SE2d 895)
    Decided February 12, 1990.
    Christine Flagg, pro se.

      Sarah E. Stevenson, for appellee.
   Cooper, Judge.

Following the trial court’s grant of two writs of possession of several electronic appliances to appellee, appellant filed separate appeals from each order.

We find that these appeals are controlled by our decision in Smalls v. Harrison, 150 Ga. App. 473 (258 SE2d 227) (1979), and must be dismissed. “ ‘Issuance of a writ of possession does not affect the merits of the case but only the right to possession pending a final decision on the merits. [Cit.]’” Cavender v. First Nat. Bank of Brunswick, 173 Ga. App. 660 (327 SE2d 789) (1985). Inasmuch as appellant has not obtained a certificate of immediate review, these appeals are premature. Foskey v. Bank of Alapaha, 147 Ga. App. 541 (249 SE2d 346) (1978). However, after a trial on the merits, a direct appeal is possible from the entry of the judgment. See Cavender v. First Nat. Bank of Brunswick, supra.

Appeals dismissed.

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