text:
    A89A1705.
    CAGLE v. THORPE et al.
    (388 SE2d 533)
   Deen, Presiding Judge.

The appellant, Jean Cagle, was injured in the course of her employment as a nurse at the Georgia Industrial Institute at Alto, Georgia, when she slipped and fell on a recently mopped floor. Cagle brought this action against the appellees, who had contracted with the State of Georgia to manage, the medical floor at the Alto institution. The jury returned a verdict for the appellees, and Cagle appeals, enumerating as error the trial court’s charging the jury on assumption of risk and avoidance of consequences.

At trial, Cagle testified that the floors usually were mopped daily by inmates, but at no set time. She knew that the floors were slippery when wet, and had previously slipped but not fallen after the floor had been mopped. She claimed to have complained to the appellees, with no specific response from them. Cagle also stated that the inmates used large mop buckets that were often stored in the hallway. She slipped and fell around 4:20 p.m., shortly before she was to get off work; she denied awareness that the floor had just been mopped, and did not remember noticing a nearby mop bucket bearing the warning, “Wet Floor, Caution,” when she fell.

Two other employees, however, testified that the floor was always mopped in the afternoon between 4:00 arid 4:30, because the heavy traffic flow, especially during the morning, made it impractical to mop at other times. One who was present at the time Cagle fell observed the mop bucket about two feet from Cagle. Held:

1. The defense of assumption of risk requires (1) that the plaintiff had some actual knowledge of the danger; (2) that she understood and appreciated the risk therefrom; and (3) that she voluntarily exposed herself to that risk. Rainey v. City of East Point, 173 Ga. App. 893 (328 SE2d 567) (1985). Cagle contends that assumption of risk was not at issue in the instant case because at the time of the slip and fall, she did not know that the floor had just been mopped. However, the evidence authorized a jury to find that Cagle had knowledge of the hazard at that time of day, appreciated the risk, and proceeded to walk on the recently mopped floor voluntarily. Accordingly, the trial court did not err in charging the jury on assumption of risk.

Decided November 9, 1989

Rehearing denied November 17, 1989.

Husby, Myers & Stroberg, Robert L. Husby, Jr., for appellant.

Gorby, Reeves, Moraitakis & Whiteman, Michael J. Gorby, for appellees.

2. In instructing the jury on avoidance of consequences, the trial court did not specifically instruct that the plaintiff’s duty to avoid the consequences of the defendant’s negligence does not arise until the plaintiff knew, or in the exercise of ordinary care, should have known of such negligence. This court has previously indicated its preference that this omitted instruction be included in a charge on avoidance of consequences, but found no error in its omission. Mitchell v. Gay, 111 Ga. App. 867 (143 SE2d 568) (1965).

Judgment affirmed.

Birdsong and Benham, JJ., concur.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A89A0867.
    SCOTT v. THE STATE.
    (388 SE2d 416)
   Beasley, Judge.

Scott appeals his convictions and sentences for two counts of armed robbery, OCGA § 16-8-41 (a), and one count of kidnapping, OCGA § 16-5-40 (a).

1. This court’s jurisdiction is the threshold question.

Defendant’s sentences were entered on February 8, 1988, at which time he was represented by appointed counsel. The following day, new counsel was appointed for appeal. On May 17, appellate counsel wrote defendant a detailed letter explaining his opinion that any attempt at appeal would be wholly frivolous and advising defendant that he was going to petition the trial court to withdraw as counsel on appeal. Defendant, on May 19, sent counsel a letter objecting to the withdrawal and indicating that he would file a pro se motion for new trial. The motion for new trial was never filed.

Counsel filed a motion for withdrawal on June 29. On December 5, 1988, this court announced that it would no longer entertain motions to withdraw pursuant to Anders v. California, 386 U. S. 738 (87 SC 1396, 18 LE2d 493) (1967). Fields v. State, 189 Ga. App. 532 (376 SE2d 912) (1988). On January 3, 1989, the trial court denied counsel’s motion for withdrawal, directing that counsel file a notice for out-of-time appeal and proceed with the appeal, stating that such appeal could include counsel’s motion to withdraw if counsel deemed it appropriate. Counsel filed a notice of appeal on January 6.

The record contains no request for an out-of-time appeal and no explicit basis for its grant. However, the record shows that appellate counsel did not make his initial determination that an appeal would be frivolous and so notify defendant until more than two months past the date to file a timely notice of appeal from defendant’s sentences. Under these circumstances an out-of-time appeal was warranted to prevent constitutional deprivation to defendant. Therefore, this court has jurisdiction of the appeal. See Shirley v. State, 188 Ga. App. 357 (1) (373 SE2d 257) (1988).

2. Appellant contends that the trial court erred in refusing to excuse one of the jurors for cause.

During individual voir dire, the juror indicated that she had been involved in a robbery approximately five or six years before and that it had been terrifying to have someone put a gun in her face. Defense counsel asked whether she could listen to the evidence presented and instruction from the court and make a determination on that alone or whether because of her experience she would be unable to listen to the evidence without giving more weight to the testimony of the victims. The juror responded that she really did not know but would be “inclined to lean toward the prosecution.”

Defense counsel requested that she be removed for cause. The State reiterated the defense question and the juror stated she understood the original question and thought she would still lean toward the prosecution. The defense renewed its challenge for cause, arguing that the juror had already admitted she would be prejudiced before hearing any evidence and therefore would not be able to listen fairly and impartially. The court stated that it was a close call and asked the juror if she could listen to the evidence and not make up her mind until all the witnesses testified and the court gave its instruction. The juror stated that she would try to be impartial but did not know if she could be. The court asked again if the juror could decide guilt or innocence based on the facts of the case and the law. The juror responded she would try. The court stated that it needed to know whether she could do it. The juror responded, “Yes, I guess I could.” The court overruled the challenge.

“Whether to strike a juror for favor lies within the sound discretion of the trial court ([Cits.]), and absent manifest abuse of that discretion, appellate courts will not reverse. [Cit.] . . .

“The fact that a potential juror may have some doubt as to his impartiality, or complete freedom from all bias, does not demand as a matter of law that the juror be excused for cause. [Cits.]” Harris v. State, 178 Ga. App. 735, 736 (1) (344 SE2d 528) (1986).

Although the juror expressed her bent toward the prosecution ostensibly because she herself had been a victim of an armed robbery, she expressed no bias or prejudice against this defendant or any fixed opinion about his guilt, and ultimately she determined that she could be impartial. Under these circumstances, refusal to excuse the juror for cause was not a manifest abuse of discretion. See Godfrey v. Francis, 251 Ga. 652, 661 (9) (308 SE2d 806) (1983); Butler v. State, 231 Ga. 276, 278 (3) (201 SE2d 448) (1973).

3. Appellant contends that the verdict was contrary to and strongly against the weight of the evidence, specifically maintaining that certain fingerprint evidence was blurry and that his alibi evidence was so strong that a reasonable trier of fact would have believed it. In argument he further challenges the finding of voluntariness of statements he made to detectives, and their admission into evidence, on the bases that he was promised a reduced sentence if he made the statements and that he never signed a waiver of rights form.

As to the fingerprint, defense counsel waived objection by explicitly stating that there was none. See Kirby v. State, 174 Ga. App. 58, 61 (7) (329 SE2d 228) (1985). Furthermore, the latent print taken from the crime scene was not blurred. Even if it was to some degree, this would not render the print inadmissible but would go merely to its weight before the jury. “ ‘(W)here the relevancy or competency of evidence is doubtful, it should be admitted and its weight left to the determination of the jury.’ [Cits.]" Johnson v. State, 148 Ga. App. 702, 703 (1) (252 SE2d 205) (1979).

The jury was also the proper,evaluator of defendant’s version of his whereabouts at the time of the robbery. It was not required to accept defendant’s alibi because “where the defendant’s statements are not consistent with and do not explain other direct and circumstantial evidence, the defendant’s explanation may be rejected by the trier of fact. [Cit.]” Green v. State, 155 Ga. App. 795, 796 (272 SE2d 761) (1980).

Appellant’s contentions regarding the voluntariness of his statements need not be considered in the context of his enumerated challenge to the sufficiency of the evidence because “an enumeration [of error] may not be enlarged by the brief on appeal to cover a ground not contained in the enumeration. [Cit.]” Tucker v. State, 173 Ga. App. 742, 745 (3) (327 SE2d 852) (1985).

However, we note that at the Jackson-Denno hearing the State presented evidence that defendant was given his Miranda warnings, that he told detectives he would talk to them but would not sign anything, and that he did not invoke his right to an attorney or his right to remain silent. “The refusal to sign a waiver of rights form before speaking to police does not render the statements involuntary and inadmissible. Once Miranda warnings are given and a person in custody gives a statement to police without invoking his right to remain silent and without requesting an attorney, he has in effect waived his rights. The refusal to sign a waiver form does not constitute an invocation of the right to remain silent or the right to counsel.” Aldridge v. State, 258 Ga. 75, 76 (3) (365 SE2d 111) (1988).

The State presented evidence that defendant was not promised a reduced sentence in exchange for his statement. Inasmuch as the trial court’s findings as to factual determinations permitting the admission of defendant’s in-custody statements were not clearly erroneous, they must be upheld. Gates v. State, 244 Ga. 587, 590 (1) (261 SE2d 349) (1979); see also Stephens v. State, 170 Ga. App. 342, 343 (1) (317 SE2d 627) (1984) (non-precedential).

The evidence of defendant’s guilt met the requirements of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

4. Appellant contends for the first time on appeal that trial counsel was ineffective. He fails to articulate whether he claims deprivation of the right to effective counsel under the Federal Constitution or State Constitution or both but relies on case authority addressing solely the federal standard. Therefore, a claim under the State Constitution is not considered and appellant must show counsel was ineffective under Strickland v. Washington, 466 U. S. 668, 687-88 (104 SC 2052, 80 LE2d 674) (1984). Under the two-pronged test set out there, “ ‘defendant must show that counsel’s representation fell below the objective standard of reasonableness’ — that is, ‘reasonable considering all the circumstances’ ”; and that “ ‘there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Lloyd v. State, 258 Ga. 645, 647 (2) (373 SE2d 1) (1988).

The complaint is that counsel did not call three witnesses, his two brothers who he claims would have testified favorably for him and a corrections officer who he claims could have bolstered his alibi. We do not consider the substance of the complaint because appellate counsel did not raise it below in a motion for new trial or in any manner which would have permitted the trial court to rule on the matter. See Simpson v. State, 250 Ga. 365, 367 (2) (297 SE2d 288) (1982). Although appellate counsel was appointed to represent defendant the day after sentencing, counsel did not raise the alleged violation of the constitutional right to counsel at the earliest practicable moment. See Smith v. State, 255 Ga. 654, 655 (3) (341 SE2d 5) (1986). Compare Hutton v. State, 192 Ga. App. 239 (384 SE2d 446) (1989), wherein appellate counsel was retained for the first time during the pendency of the appeal. In Hutton there was no opportunity for counsel other than trial counsel, who could not make the allegation against himself, to raise it at the trial court level.

Decided November 17, 1989.

Stephen H. Harris, for appellant.

Spencer Lawton, Jr., District Attorney, John T. Garcia, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Birdsong, Judge.

text:
    A89A0897.
    MARTIN v. THE STATE.
    (388 SE2d 420)
   Birdsong, Judge.

Appellant Matthew Martin appeals his conviction of armed robbery and burglary.

During the night of October 15-16, 1986, someone gained entry to the Easter Seal Center in Dublin, Georgia, by breaking a window. There were no witnesses, but appellant’s fingerprints were found on both sides of the broken glass. On the afternoon of October 16, 1986, a man armed with a pistol robbed an insurance office in Dublin. Later that day, an insurance company employee identified Martin as the robber.

Martin was convicted of both crimes. Upon his motion, however, Martin was granted a new trial. He was retried and was again convicted. He now appeals alleging that his identification by the victim was tainted, asserting that he was erroneously denied a mistrial on various grounds and contending that he was denied his right to effective assistance of counsel. Held:

1. Martin asserts that the trial court erred by denying his motion in limine to exclude his identification by the insurance company employee. The employee was called to the police station to see if she could identify a robbery suspect. She first looked at two “mug books” and could not find the man. (Martin’s photograph was not included in the books of photographs.) Thereafter, the victim was twice requested to look at the same man (Martin) to see if she could identify him, but she could not. Finally, after Martin put a white piece of paper over the lower part of his face like the man who robbed her, and after she heard him talk, she identified Martin as the man who robbed her.

Martin argues these procedures were extremely suggestive, and that the employee identified him only after the police twice suggested that Martin was the man who robbed her. Thus, he asserts, the show-up was impermissibly suggestive, see Towns v. State, 136 Ga. App. 467 (221 SE2d 631), and created a substantial likelihood of an irreparable misidentification. Further, Martin argues that his in-court identification was tainted by the earlier show-up. Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401). Therefore, he asserts that his motion in limine to exclude testimony concerning the show-up and the in-court identification should have been granted.

The test for determining whether a due process violation occurred in cases such as this “is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” McCoy v. State, 190 Ga. App. 258 (3) (378 SE2d 888). The considerations in evaluating the likelihood of misidentification include: (a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness’ degree of attention, (c) the accuracy of the witness’ prior description of the criminal, (d) the level of certainty demonstrated by the witness at the confrontation, and (e) the length of time between the crime and the confrontation. Neil v. Biggers, supra.

Considering these factors, we conclude that under the “totality of the circumstances,” Neil v. Biggers, supra, the procedures used in this case to identify Martin were not so impermissibly suggestive as to cause a very substantial likelihood of irreparable misidentification. (a) Although the victim only saw the man who robbed her for a short time, the robbery took place in the middle of the day, indoors, and in a well-lighted office. The victim also testified that she could see well, and that she and the robber were very close together. The robber’s face was partially masked, but except for that, the victim had an excellent opportunity to see the man who robbed her. (b) Her attention was focused entirely on the robber, and she was not distracted by other events occurring at the time, (c) The description of the robber given to the police by the victim shortly after the crime accurately described Martin. Although Martin argues that the description given the police was so general that it could include large numbers of black men, the description given closely described Martin’s physical characteristics. (d) The victim displayed a high degree of certainty in her identification of Martin. Although she did not pick anyone from the two mug books, the books did not include Martin’s photograph. Further, although she did not identify Martin when she saw him brought to the police station or when she first saw him in the interview room, she made no misidentifications and she explained that she could not identify the man when he entered the police station because she could not see him very well. When she next saw the man in the interview room, she thought that the voice “sounded very much the same,” but she did not identify him at first because she was looking at the full face of the man and that was not how she saw him at the time of the robbery. When she saw him with a handkerchief covering part of his face, however, “there was no question in [her] mind that it was the same man.” She testified that the eyes were the same and that there was something about the way the man tilted his head, (e) Finally, we note that there was only about a two-hour interval between the robbery and the show-up at the police station, and that there is no indication in the record that the victim suffered any lapse of memory in the interval. Considering these factors in light of the totality of the circumstances, we find there is no substantial likelihood of an irreparable misidentification, and accordingly, it was not error for the trial court to deny Martin’s motion in limine to exclude the evidence of the out-of-court identification.

Assuming arguendo that some taint occurred in the pretrial identification, a witness’ in-court identification may be admitted if it has an “independent origin.” McCoy v. State, supra. See Jones v. State, 258 Ga. 25 (3) (365 SE2d 263). Again, considering the totality of the circumstances discussed above as well as the witness’ ability to identify appellant notwithstanding the passage of time until trial, appellant’s change in appearance, and appellant’s efforts to make the in-court identification difficult, we find that the employee’s in-court identification had an independent origin.

2. Appellant’s second and sixth enumerations of error concern the conduct of one of the State’s witnesses, the investigating police officer. The officer, who was allowed to stay in the courtroom to assist the prosecutor, is alleged to have violated the witness sequestration rule by discussing the case with the victimized employee before her testimony and by placing appellant’s character in question by referring to the witness’ testimony in appellant’s first trial. Appellant asserts that either of these events warranted the granting of his motion for mistrial.

Appellant argues in support of enumeration 2 that a mistrial was required because the officer told the employee that he believed appellant might have people in the courtroom who looked like him. This conversation did not violate the sequestration rule. The purpose of the rule is to keep the testimony of one witness from influencing the testimony of other witnesses. Rogers v. State, 257 Ga. 590 (4) (361 SE2d 814). The discussion did not concern the testimony of the officer, and thus the officer’s testimony could not have influenced the employee’s testimony. Accordingly, the sequestration rule was not violated. It was not error to deny any motion for mistrial specifically grounded on a sequestration rule violation.

The sixth enumeration of error asserts that it was error to deny appellant’s motion for a mistrial when the same officer allegedly introduced appellant’s character in question and prejudiced him in front of the jury by referring to testimony in appellant’s first trial. The officer’s answer was made in the context of questions asked by appellant’s counsel concerning responses made by the witness at appellant’s first trial. Although appellant’s attorney carefully referred to the first trial as a previous hearing, the witness at one point answered a question about his previous testimony by saying “at the time of the last trial when I was asked that question. ...” This apparently inadvertent comment in the course of cross-examination designed to impeach him does not rise to the level of misconduct condemned in Boyd v. State, 146 Ga. App. 359 (246 SE2d 396). Although the comment was contrary to the agreement reached on how to describe the first trial, we do not find from the context of the comment that it was made with the intention of prejudicing the jury against appellant. Further, the response was to a question by appellant’s trial defense counsel who had earlier introduced the subject of the testimony given at the first trial. Assuming without deciding that the officer’s testimony could be construed to have placed appellant’s character in issue, it appears that the responsibility for this rests with appellant’s counsel since the answer was to his questioning. “Trial counsel may not take chances in propounding questions which may elicit damaging answers and then demand a mistrial on the basis of the answer. Felker v. State, 252 Ga. 351 (314 SE2d 621) (1984). Furthermore, the decision of whether to grant a mistrial is within the sound discretion of the trial court and his ruling will not be disturbed absent an abuse of discretion. Ladson v. State, 248 Ga. 470 (285 SE2d 508) (1981).” Buxton v. State, 253 Ga. 137 (3) (317 SE2d 538). There was no error in denying appellant’s motion for mistrial. Accordingly, enumerations of error 2 and 6 are without merit.

3. Appellant asserts that the trial court erred by failing to grant a mistrial because the State allegedly used its peremptory strikes in a racially prejudicial manner. See generally Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69). The State argues that appellant’s Batson challenge was untimely because it was made after the jury was sworn. This contention is not supported by the transcript. The jury was not sworn until after appellant’s challenge was made and denied. The record before us is not sufficient to determine whether a prima facie case of Batson error was established. “Pretermitting whether the defendant made a prima facie showing of discrimination, see Williams v. State, 258 Ga. 80, 81 (3) (365 SE2d 408) (1988) and Aldridge v. State, 258 Ga. 75, 76 (4) (365 SE2d 111) (1988), the record amply supports the trial court’s finding that the prosecutor used peremptory challenges to remove those jurors for legitimate, racially-neutral reasons. Henderson v. State, 257 Ga. 434, 436 (3) (360 SE2d 263) (1987).” Lee v. State, 258 Ga. 481, 482-483 (371 SE2d 389). This enumeration of error is without merit.

4. Appellant contends the trial court’s refusal to grant a mistrial when the prosecutor said in closing argument that: “Matthew Martin has not presented any evidence to show that he ever set foot at Easter Seals, except the night he burglarized this place. There is no evidence in this case. It is unrefuted that he had not been there during the daytime. You can’t just guess that he might have been. They’ve got to produce evidence to that fact if they want you to consider it. . . .” Following appellant’s objection to these remarks, his motion for mistrial, and curative instructions by the trial court, the prosecutor made the following argument: “Ladies and gentlemen, I want to make something clear. As the [cjourt told you, the [defendant does not have to produce evidence, but fortunately this is America. It’s not Russia where they don’t have a right to provide a defense. In this country, they can produce evidence and they have failed to do so in this case. They have done nothing to rebut or rebuke the evidence that the State of Georgia has produced in this case. That is why I’m saying and I would like. . . .” Appellant renewed his motion for mistrial, and the trial court again denied the motion.

Appellant contends that this argument improperly commented upon appellant not testifying, improperly argued that he had a burden to present refuting evidence, and improperly argued that he had a burden to produce any evidence. Appellant’s contentions present two issues: whether the prosecutor improperly commented upon appellant’s failure to testify, and whether the prosecutor improperly commented upon appellant’s failure to rebut or refute the evidence produced by the State.

We must consider the prosecutor’s comments within their context in the argument. See generally Russell v. State, 184 Ga. App. 657, 658 (362 SE2d 392) (physical precedent only). At this point the prosecutor was discussing the state of the evidence on the burglary count, and in particular, was addressing the evidence showing that appellant’s fingerprints were found in a location that only the burglar could have placed them. He had addressed appellant’s defense counsel’s efforts to gain from the State’s witnesses an explanation for fingerprints and then finally launched into the comments which we now consider.

“Though the prosecutor may not comment on a defendant’s failure to testify, ‘ “[i]t is not error, nor is it improper for the prosecutor to reflect upon the failure of the defense to present any evidence to rebut the proof adduced by the [Sjtate.” [Cits.]’ ” (Second emphasis supplied.) Smith v. State, 245 Ga. 205, 207 (264 SE2d 15). Thus, there was no error if the prosecutor’s comments in this case were merely directed toward appellant’s failure to rebut the State’s evidence against him. Jones v. State, 168 Ga. App. 652, 653 (310 SE2d 17); Hall v. State, 163 Ga. App. 515, 517 (295 SE2d 194).

Consequently, we must test to determine whether the prosecutor’s comments were directed toward appellant’s failure to testify. Our Supreme Court stated the test to be used in such cases in Ranger v. State, 249 Ga. 315, 319 (290 SE2d 63): “ ‘To reverse for improper comment by the prosecutor, we must find one of two things: that “the prosecutor’s manifest intention was to comment upon the accused’s failure to testify” or that the remark was “of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” [Citations omitted.]’ ” The prosecutor in this case added another dimension to the usual problem by initially referring to appellant directly by name. Although the better practice clearly would be not to do so, the reference to appellant by name rather than as the “defendant” or the “defense,” standing alone is not controlling. See Hall v. State, 176 Ga. App. 428, 431-432 (336 SE2d 291).

We must still determine whether the argument impermissibly commented upon appellant’s failure to testify. “Commenting on the deficiencies in the defense does not always constitute a forbidden comment on the defendant’s failure to testify, as a defendant’s testimony is not a sine qua non of a defense.” Russell v. State, supra. In this instance, the prosecutor argued that the trial defense counsel had been unable through cross-examination of the witnesses from the office burglarized to establish any explanation for appellant’s fingerprints to be in the office. The comment complained of was the next logical step in the argument, i.e., that the defense also had not presented any other evidence giving an explanation for appellant’s fingerprints being there.

Further, that was the explanation given by the prosecutor to the trial court for this line of questioning. Accordingly, “[i]n the instant case, it is clear from the context of the prosecutor’s statement and the explanation he offered to the court that he did not intend to comment upon the accused’s failure to testify. . . .” Lobdell v. State, 256 Ga. 769, 775 (353 SE2d 799). We thus find that the prosecutor’s comment did not reflect a “manifest intention” to comment upon appellant not testifying, nor do we find that the comments were such that the jury “would naturally and necessarily” find them to be so. Ranger u. State, supra. “In the context of the prosecutor’s argument it was not improper to argue that the defense did not present evidence to refute the [S]tate’s case or to rebut the . . . [S]tate’s witnesses.” Lowe v. State, 253 Ga. 308, 310 (319 SE2d 834). The prosecutor’s argument “was simply commenting on the fact that the defense did not present evidence to refute the State’s case, not to point to the conclusion of the defendant’s guilt because of his failure to testify.” Thomas v. State, 174 Ga. App. 824, 825 (331 SE2d 644). Moreover, there is no merit in appellant’s contention that the prosecutor’s argument impermissibly shifted the burden of proof or created a burden to produce evidence on appellant. See Valenzuela v. State, 157 Ga. App. 247, 250 (277 SE2d 56). The prosecutor’s argument asserted that the jurors must base their verdict on the evidence presented and not guesswork or conjecture.

Decided November 17, 1989.

Henry G. Bozeman, for appellant.

Finally, “ ‘[t]he trial judge in passing upon a motion for mistrial on account of alleged improper argument ... is vested with a broad and sound discretion, and his ruling will not be controlled by this court unless manifestly abused.’ [Cit.]” Casey v. State, 167 Ga. App. 437, 439 (306 SE2d 683). The trial judge in this case took the action necessary to make sure that the prosecutor’s argument did not erroneously shift any burden to appellant by promptly and accurately granting appropriate curative instructions. We find no abuse of discretion in denying appellant’s motion.

5. Next, appellant asserts that he was denied his right to effective assistance of counsel. This matter was raised in appellant’s motion for new trial, was contested in the trial court by new counsel, and was decided against appellant.

Appellant’s burden was to establish that his counsel’s performance was deficient and that the deficient performance prejudiced the defense. Brown v. State, 257 Ga. 277, 278 (357 SE2d 590). He had to show that there was a reasonable probability that the result of the trial would have been different, but for his counsel’s ineffective performance, Baggett v. State, 257 Ga. 735 (363 SE2d 257), and he had to overcome the strong presumption that his counsel’s representation was effective. Clarington v. State, 178 Ga. App. 663, 667 (344 SE2d 485).

Review of the transcript of the trial and the hearing on the motion clearly shows that appellant has failed to carry his burden. Appellant’s trial defense counsel vigorously contested the State’s case, and forcefully represented appellant. While the point is not determinative, we note that frequently during the trial, the trial judge inquired about appellant’s satisfaction with his attorney’s performance, and was repeatedly assured that he was satisfied. The specific allegations against the defense counsel were considered in the trial court and were adequately explained. Given the strength of the case against appellant, the defense counsel’s performance more than exceeded the standards established. Appellant’s trial defense counsel was not deficient and certainly did not prejudice the defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674). This enumeration of error is without merit.

6. Appellant’s fifth enumeration of error was abandoned on appeal.

Judgment affirmed.

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

Ralph M. Walke, District Attorney, Tyson Blue, Assistant District Attorney, for appellee.


text:
    A89A0938.
    PLEDGER v. THE STATE. COBB v. THE STATE. GRIGGS v. THE STATE.
    A89A1100, A89A1101.
    A89A1104.
    (388 SE2d 425)
   Beasley, Judge.

Pledger, Cobb, and Griggs were indicted for kidnapping a woman, Ella Fountain, and her two daughters, Cassandra and Denitria Fountain, OCGA § 16-5-40, robbing the woman at gunpoint, OCGA § 16-8-41, and raping the woman and one of the daughters, OCGA § 16-6-1. All were tried together by a jury. Pledger was convicted of armed robbery and kidnapping of all three victims. Cobb was convicted of the kidnappings, the armed robbery, and the rape of Cassandra Fountain. Griggs was convicted of three counts of kidnapping, armed robbery and the rape of Ella Fountain.

1. Case Nos. A89A1100 and A89A1101 are duplicate appeals by Cobb. As a result of. this and because A89A1101 is not supported by enumeration of error or brief, it is treated as abandoned and dismissed.

2. Pledger and Cobb enumerate as error the denial of a new trial on evidence insufficiency. Cobb and Griggs claim error in the court’s reversing its order granting a new trial to them.

(a) As to the latter question, a procedural one, the three motions for new trial were heard and, in the same November term of court, granted as to Cobb and Griggs, denied as to Pledger. The trial court was of the opinion, based on Cruz v. New York, 481 U. S. 186 (107 SC 1714, 95 LE2d 162) (1987), that because of Pledger’s written statement implicating the other two, they were entitled to a separate trial or one at which all three were tried but Pledger’s statement was excluded. In the next term of court, January (OCGA § 15-6-3 (3)), the court without further hearing vacated the prior order and denied a new trial to Cobb and Griggs as well.

What was stated in Salisbury v. Grimes, 223 Ga. 776, 778 (2) (158 SE2d 412) (1967), applied here: “When appellant was granted a new trial, it wiped the slate clean as if no previous conviction and sentence had existed.” The question for our decision is, even if the verdict and sentences could have been resurrected, did the trial court have authority to do so after the term in which the order was entered had ended.

“ ‘During the term of the court at which a judgment is rendered, it is within the breast of the presiding judge, and may be vacated upon proper cause shown; but after the term has expired, the judgment ‘is upon the roll’ and is not subject to review or revision by the trial court.’ ” Gobles v. Hayes, 194 Ga. 297, 300 (21 SE2d 624) (1942). The power of the court, during the term, is described as plenary, to be used for the purpose of promoting justice, but the court’s discretion, although broad, is not unbounded and should be exercised only upon sufficient cause shown. Deen v. Baxley State Bank, 192 Ga. 300, 303 (1) (15 SE2d 194) (1941).

The effect of a new trial grant is to leave the cause pending in the lower court. In civil cases and under OCGA § 9-11-6 (c), our courts have distinguished between interlocutory rulings and final judgments. “While final judgments may not be modified after the term in which they were rendered (subject to certain exceptions), ‘an interlocutory ruling does not pass from the control of the court at the end of the term if the cause remains pending.’ ” Hodges Plumbing &c. Co. v. ITT Grinnell Co., 179 Ga. App. 521, 522 (1) (347 SE2d 257) (1986). See Hubbert v. Williams, 175 Ga. App. 393, 394 (1) (333 SE2d 425) (1985); Bradley v. Tattnall Bank, 170 Ga. App. 821, 823 (1) (318 SE2d 657) (1984); Van Keuren v. Loomis, 128 Ga. App. 136 (1) (195 SE2d 776) (1973).

The power of the court during, but not beyond, the term is an inherent one, East Side Lumber &c. Co. v. Barfield, 193 Ga. 273, 276 (1 & 2) (18 SE2d 492) (1942), predating the CPA, and as to criminal cases has not been modified by statute, as have those cases civil in nature. See Ammons v. Bolick, 233 Ga. 324, 325 (210 SE2d 796) (1974). Prior to the CPA, the rule was: “The mere fact that a cause is still pending, no final judgment on the merits having been rendered, does not preserve in the court power to revoke interlocutory rulings made at a term which has passed.” McCandless v. Conley, 115 Ga. 48, 51 (1) (41 SE 256) (1902). Accord Gulf Life Ins. Co. v. Gaines, 50 Ga. App. 504, 505 (179 SE 199) (1935) (physical precedent); Rusk v. Hill, 117 Ga. 722, 730 (45 SE 42) (1903); Rogers v. Rigell, 183 Ga. 455, 456 (188 SE 704) (1936).

The present order was entered in one term and vacated in another. In a criminal case the inherent power still ceases with the term’s end. Bowen v. State, 239 Ga. 517, 518 (2) (238 SE2d 62) (1977), held that a trial court could rescind its order granting a new trial where proceedings to vacate such order were begun during the term it was entered (the most important exception to the end of term rule). Implicit from the decision is the recognition that if a motion had not been filed during the term then the grant of the new trial could not have been set aside after the term. See Bowen v. State, 144 Ga. App. 329, 332 (241 SE2d 431) (1977); Ramsey v. State, 212 Ga. 381, 385 (92 SE2d 866) (1956).

At the beginning of the January term, any action with respect to whether there should be a new trial or not was complete. The power to reinstate the original judgment had expired at the end of the November term.

Cobb and Griggs are entitled to a new trial.

(b) Their remaining enumerations of error fail to disclose a further basis for reversal.

(c) The substantive question, of the sufficiency of evidence, need be decided only with respect to Pledger. It is within the jury’s province to resolve contradictions in evidence and decide issues of credibility of witnesses. Rhodes v. State, 153 Ga. App. 306, 307 (265 SE2d 110) (1980). In addition, it is entitled to draw any reasonable inference from the evidence presented. Dowdy v. State, 150 Ga. App. 137, 139 (257 SE2d 41) (1979); United States v. Yeatts, 639 F2d 1186 (5th Cir. 1981). These principles being so, the appellate court is relegated to reviewing the evidence construed in favor of the verdict. Hosch v. State, 185 Ga. App, 71 (1) (363 SE2d 258) (1987). The combined testimony of the three victims, supported by that of law enforcement investigators and scientific experts, was sufficient to establish the elements of the crimes Pledger was found guilty of committing, applying the test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Identity was the key issue, rather than whether or not the events occurred. Pledger was identified as one of the two men who first approached the victims’ car, abducted them, partially by display of Pledger’s gun, took them to a deserted area for robbery and rape with Pledger driving, took the daughters to the family home for burglarizing, and drove off with them again. Pledger, who was Griggs’ nephew, was arrested wearing shoes taken from the mother when she was raped the second time. Another victim of a similar incident which took place the same day also identified Pledger as one of the three men who attacked her. Pledger gave a statement when arrested, implicating all three.

3. Pledger’s other enumeration is that the court erred in denying his motion to sever his trial from that of the others, which denial infringed on his Federal Constitutional Sixth Amendment right to effective assistance of counsel. He argues that he was entitled to severance because the number of defendants created confusion of the evidence and law applicable to each, citing Crawford v. State, 148 Ga. App. 523, 526 (251 SE2d 602) (1978). Unlike the situation in the Crawford case, however, Pledger was not merely passively involved, with only minimal evidence against him, which in Crawford’s case had convinced the court that it was highly probable that the substantial evidence against the co-defendants had a spillover effect and resulted in his being found guilty by association.

Pledger was one of the two who first approached the victims’ car. He had a gun. He drove the victims’ car throughout the ordeal, first with the mother in the trunk and then on the second leg of the journey with the eldest daughter confined there. He participated in the robbery and later in the burglary. By his statement before trial, he denied raping the mother and the daughter. The jury found him not guilty of rape.

Decided November 20, 1989.

Allison V. Cobham, for appellant (case no. A89A0938).

Robert G. Fierer, Gary N. Finder, Daniel E. Gavrin, for appellant (case nos. A89A1100, A89A1101).

Hurl R. Taylor, Jr., for appellant (case no. A89A1104).

Lewis R: Slaton, District Attorney, Joseph J. Drolet, Joyce M. Averils, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

Applying the first test set out in Crawford, which is the only one Pledger draws into the issue, the evidence and the law relevant to him were not confused by the number of defendants as a matter of law. The court did not abuse its discretion in refusing to provide Pledger with a separate trial. OCGA.§ 17-8-4; Rivers v. State, 178 Ga. App. 310, 311 (2) (342 SE2d 781) (1986); Kennedy v. State, 253 Ga. 132, 134 (2) (317 SE2d 822) (1984). See Reaves v. State, 146 Ga. App. 409, 411 (2) (246 SE2d 427) (1978). Pledger does not demonstrate, nor do we perceive, how the joint trial deprived him of effective assistance of counsel. See Cain v. State, 235 Ga. 128, 129-130 (218 SE2d 856) (1975).

Appeal dismissed in Case No. A89A1101; judgments reversed in Case Nos. A89A1100 and A89A1104; judgment affirmed in Case No. A89A0938.

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


author: Carley, Chief Judge.

text:
    A89A0862.
    BROOKS et al. v. FEDERAL LAND BANK OF COLUMBIA.
    (388 SE2d 704)
   Carley, Chief Judge.

On October 2, 1987, a default judgment was entered in favor of appellee-plaintiff against appellant-defendants. Subsequently, appellee filed a motion pursuant to OCGA § 9-11-60 (g), seeking to correct a mistake in the default judgment, and appellants filed a motion pursuant to OCGA § 9-11-60 (d), seeking to set aside the default judgment. The trial court, after conducting a consolidated hearing, granted appellee’s motion and denied appellants’ motion. Appellants filed a single notice of appeal purporting to bring this direct appeal from both of the trial court’s orders.

1. The grant of appellee’s OCGA § 9-11-60 (g) motion is a final order which is directly appealable by appellants. See Crawford v. Kroger Co., 183 Ga. App. 836 (360 SE2d 274) (1987). The denial of appellants’ OCGA § 9-11-60 (d) motion is also a final order, but it is not directly appealable by them because of the applicability of the provisions of OCGA § 5-6-35 (a) (8). Accordingly, the initial issue to be resolved is whether this court has jurisdiction to address the denial of appellants’ OCGA § 9-11-60 (d) motion.

“A careful reading of OCGA § 5-6-35 leads us to the inescapable conclusion that the legislature never intended for the application procedure to be circumvented. The statute begins by stating, ‘Appeals in the following cases shall be taken as provided in this Code section’ and goes on to include within the following cases appeals from orders ‘denying a motion to set aside a judgment.’ OCGA § 5-6-35 (8). Subsection (b) provides[:] ‘All appeals taken in cases specified in subsection (a) of this Code section shall be by application. . . .’ Thus the statute makes it clear that an application must be filed to appeal from an order denying a motion to set aside a judgment.” State Farm &c. Ins. Co. v. Yancey, 258 Ga. 802 (375 SE2d 39) (1989). OCGA § 5-6-34 (d) and Southeast Ceramics v. Klem, 246 Ga. 294 (271 SE2d 199) (1980) are not authority to the contrary. See State Farm &c. Ins. Co. v. Yancey, supra at 802, fn. 1.

Accordingly, in order for appellants to secure an appellate review of the denial of their OCGA § 9-11-60 (d) motion, they would be required to comply with the discretionary appeal provisions of OCGA § 5-6-35. They have not done so. This court has jurisdiction to consider only the grant of appellee’s OCGA § 9-11-60 (g) motion and such other judgments, rulings, or orders as were rendered in connection with the grant of that motion.

2. None of appellants’ enumerations of error is directed toward the trial court’s grant of appellee’s OCGA § 9-11-60 (g) motion. All of appellants’ enumerations of error relate to the trial court’s denial of their OCGA § 9-11-60 (d) motion. As discussed in Division 1, this court has no jurisdiction to address any issue concerning the purported invalidity of the underlying default judgment. We have jurisdiction only to address the issue of whether there was a clerical mistake in the underlying default judgment which the trial court was authorized to correct pursuant to OCGA § 9-11-60 (g). Since appellants enumerate no error as to this issue, it follows that the grant of appellee’s OCGA § 9-11-60 (g) motion must be affirmed.

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs in judgment only.

Decided September 28, 1989

Rehearing denied November 1, 1989

Tom K. Smith, for appellant.

Allen, Brown & Bruce, Charles H. Brown, for appellee.


text:
    A89A1285, A89A1286.
    GILBERT v. EDMONDSON (two cases).
    (388 SE2d 713)
   Carley, Chief Judge.

Appellant-plaintiff is an attorney and appellee-defendant is one of his former clients. Appellant filed suit against appellee, seeking to recover the compensation that he had allegedly earned for representing her in various legal matters. The trial court granted partial summary judgment in favor of appellee, holding that appellant could not recover either in quantum meruit or for the breach of a contingency contract but, according to the terms of his written express contract, would be limited to a recovery based upon a rate of $65 per hour. Appellant filed a timely notice of appeal from this grant of partial summary judgment in favor of appellee.

Some months subsequent to the grant of partial summary judgment in appellee’s favor, the trial court entered an interlocutory order in the case. Appellant then filed an “amendment” to his original notice of appeal purporting to include this subsequent interlocutory order as appealable thereunder and he also filed a separate direct notice of appeal from that order. Pursuant to his original and amended notice of appeal, appellant appeals in Case No. A89A1285 from the grant of partial summary judgment in favor of appellee and from the trial court’s subsequent interlocutory order. Pursuant to his separate direct notice of appeal, appellant appeals in Case No. A89A1286 from the trial court’s subsequent interlocutory order.

Case No. A89A1285

1. Appellant’s express written contract with appellee provided, in relevant part, that he was to receive compensation of “$65.00 per hour or 30% of all sums recovered whichever is greater. ... In the event the services [here]under . . . are terminated, then and in that event, all accrued billing shall be paid in full. ...” Thus, the parties’ written express contract specifically provided that appellant was to be compensated at the rate of $65 per hour in the event that his legal representation of appellee was terminated before she secured a recovery. Compare Matthews v. Neal, Greene & Clark, 177 Ga. App. 26, 28 (1) (338 SE2d 496) (1985). It follows that the trial court correctly granted summary judgment in favor of appellee as to appellant’s recovery in quantum meruit for such pre-recovery legal services as he may have rendered prior to the termination of his employment. “[T]here cannot be an express and implied contract for the same thing existing at the same time between the same parties. It is only when the parties themselves do not expressly agree, that the law interposes and raises a promise. [Cit.]” Fonda Corp. v. Southern Sprinkler Co., 144 Ga. App. 287, 292 (3) (241 SE2d 256) (1977). “[O]ne is estopped to recover on quantum meruit where there exists an express agreement. [Cits.]” Willis v. Kemp, 130 Ga. App. 758, 760 (3) (204 SE2d 486) (1974).

2. With regard to at least one of the various legal actions in which he represented appellee, appellant urges that a genuine issue of material fact remains as to the viability of his claim for breach of a contingency contract. According to appellant, the evidence, when construed most favorably for him, would authorize a finding that his employment was not terminated prior to appellee’s recovery in that legal action and that, therefore, he did earn 30 percent of her eventual recovery as a contingency fee for his services.

A review of the undisputed evidence of record shows that appellant’s employment was terminated by appellee no later than December 12,1983. The mere fact that appellant thereafter made the unilateral decision to appear at a hearing wherein appellee was being represented by her subsequently retained counsel is not evidence that she desired to reestablish or acquiesced in the reestablishment of a professional relationship with appellant. Accordingly, the trial court correctly granted summary judgment in favor of appellee as to appellant’s recovery for breach of a contingency contract.

3. Pursuant to his “amended” notice of appeal, appellant enumerates the trial court’s subsequent interlocutory order as error. “An original notice of appeal may only be amended in order to correct an error in the original. [Cit.] As [appellant’s] amendment does not purport to correct an error, [this enumeration] cannot be considered.” Tapley Fin. Corp. v. C & S Bank of Dublin, 129 Ga. App. 781 (1) (201 SE2d 482) (1973).

4. Appellant’s remaining enumerations of error have been considered and are found to be without merit.

Case No. A89A1286

5. This appeal must be dismissed for appellant’s failure to follow the applicable procedures with regard to securing appellate review of an interlocutory order.

Judgment affirmed in Case No. A89A1285. Appeal dismissed in Case No. A89A1286.

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

Decided November 6, 1989

Rehearing denied November 20, 1989.

Paul R. Koehler, Donald T. Salter, for appellant.

Peyton S. Hawes, Jr., Jones, Brown & Brennan, Taylor W. Jones, for appellee.


author: Deen, Presiding Judge.

text:
    A89A1649.
    LUCAS v. HOSPITAL AUTHORITY OF DOUGHERTY COUNTY.
    (388 SE2d 871)
   Deen, Presiding Judge.

On October 14, 1985, Milton Lucas was admitted to Phoebe Putney Memorial Hospital, where he underwent surgery to remove a growth from his right lung. Terri Rachals, a registered nurse, was assigned to care for him after his surgery in the surgical intensive care unit. Lucas subsequently suffered a heart attack of unknown cause on October 17, 1985. On October 18 and 19, Rachals gave him unauthorized injections of potassium chloride, which caused two episodes of sudden cardiovascular collapse. He died on October 19 shortly after receiving the. second injection.

Rachals later confessed to giving lethal, unauthorized injections to Lucas as well as to four other patients at the hospital. She stated her reason for giving the injections to Lucas as wanting “to put him out of his misery.”

Melva W. Lucas, the wife of the deceased, filed an action against the hospital and Rachals for the wrongful death of her husband. She contended that the hospital was liable for Rachals’ actions under the doctrine of respondeat superior, and that it was negligent in the control, use, dispensation, and administration of potassium chloride, and in its failure to discover the cause of her husband’s heart attacks. The trial court granted the hospital’s motion for summary judgment and Melva Lucas appeals.

1. OCGA § 51-2-2 provides: “Every person shall be liable for torts committed by his wife, his child or his servant by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily.” “The true test [of voluntariness] is not whether the tort was committed by reason of anger, malice or ill will, but whether or not it was committed in the prosecution and within the scope of the master’s business. If the tort be committed, not by reason of the employment, but because of matters disconnected therewith, the master would not be liable.” McCranie v. Langdale Ford Co., 176 Ga. App. 281, 282 (335 SE2d 667) (1985). “ ‘If the criminal act of the [employee] was done within the range of his employment [in order to accomplish] the authorized business of the master, the latter is liable.’ [Cit.]” Pope v. Seaboard Air Line R. Co., 88 Ga. App. 557, 560 (77 SE2d 55) (1953). If, however, the tortious act were committed not by reason of the employment, but rather for purely personal reasons disconnected from the authorized business of the master, the master would not be liable. Frazier v. Southern R. Co., 200 Ga. 590, 593 (37 SE2d 774) (1946); Odom v. Hubeny, Inc., 179 Ga. App. 250, 251 (345 SE2d 886) (1986).

In the instant case, the hospital and Rachals were both pledged to the proper care, supervision and treatment of the patients. It cannot be said that Rachals was advancing or benefiting the hospital in any way by injecting certain patients with lethal doses of potassium chloride in order to “put them out of their misery.” While Rachals may have been advancing the hospital’s interests in giving authorized injections of potassium chloride, she clearly abandoned the hospital’s interest and pursued only her own when she gave the lethal, unauthorized injections. See Slaton v. B & B Gulf Svc. Center, 178 Ga. App. 701, 702 (344 SE2d 512) (1986). The trial court properly granted summary judgment to the hospital on the issue of respondeat superior.

2. Appellant also contends that the hospital was negligent in its control, use, dispensation, and administration of potassium chloride, and in not determining the cause of her husband’s heart attacks. The hospital countered these allegations on summary judgment by filing affidavits of nurses who worked with Rachals.

All of the affidavits state: “Affiant is familiar with the standards of the Joint Commission for the Accreditation of Hospitals regarding training, in service and monitoring of hiring and knows of her own personal knowledge what the standards were at the time Terri M. Rachals was hired and employed by Phoebe Putney Memorial Hospital [and] . . . knows of her own personal knowledge that with regard to the hiring, training, in service, and monitoring of Terri M. Rachals, there was no deviation from the standards of hospitals and recognized proper practices or the standards promulgated by the Joint Commission for the Accreditation of Hospitals.” In short, the affidavits state that the hospital was not negligent in any way in the manner in which it permitted Rachals to have access to potassium chloride. We further note that the issue of failing to discover the cause of the decedent’s heart attacks falls within the realm of medical diagnosis, which is the responsibility of the attending physician, not the hospital.

Appellant has failed to produce any evidence which would refute these affidavits and has not filed any counter affidavits. “When the defendant has made a motion for a summary judgment . . . , which motion is supported by affidavits, depositions or other evidentiary matter showing a prima facie right on the part of the defendant to have a summary judgment rendered in his favor, the duty is cast upon the plaintiff to produce rebuttal evidence at the hearing thereof, by the introduction of depositions or affidavits, sufficient to show to the court that there is a genuine issue of fact to be decided by the jury.” Cochran v. Southern Business Univ., 110 Ga. App. 666 (139 SE2d 400) (1964). The appellant has failed to meet its burden of proof by failing to produce any rebuttal evidence to the hospital’s supporting affidavits. Summary judgment was therefore properly granted by the trial court.

Decided November 9, 1989

Rehearing denied November 20, 1989

Reinhardt & Whitley, Glenn Whitley, Robert C. Wilmot, for appellant.

Perry, Walters & Lippett, C. Richard Langley, for appellee.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Pope, Judge. Sognier, Judge,

text:
    A89A1118.
    MARSDEN v. SOUTHEASTERN SASH & DOOR COMPANY, INC.
    (388 SE2d 730)
   Pope, Judge.

Plaintiff Southeastern Sash & Door, Inc. (“Southeastern”) filed suit against defendants Steven W. Marsden, William Marsh and Clay Futch as personal guarantors of the account of Sunbelt Lumber Supply, Inc. (“Sunbelt”). The record shows that in the spring of 1987 the defendants executed Guaranty of Payment contracts in which they agreed to be jointly and severally liable for the payment of expenses incurred by Sunbelt on its account with Southeastern. Sunbelt ceased operations in September 1987 and Southeastern sought payment from the defendants of $3,874.77, which included the amount that Sunbelt owed Southeastern under the terms of a promissory note executed by Sunbelt in January of 1987, plus expenses of litigation and attorney fees. The trial court granted Southeastern’s motion for summary judgment and entered judgment in its favor for $6,216.70, an amount which included $2,099.70 principal and $4,117.00 attorney fees. Held:

1. Initially we are presented with Southeastern’s motion to dismiss Marsh and Futch as parties to this appeal, based on their failure to file separate notices of appeal. Relying on OCGA § 5-6-37, these defendants, unlike defendant Marsden, did not file timely notices of appeal, but instead sent a letter to the clerk of this court adopting Marsden’s brief and enumeration of errors. Marsh and Futch later filed supplemental briefs as well as a motion to strike and response briefs to Southeastern’s motion to dismiss them as parties on appeal.

OCGA § 5-6-37 provides, in relevant part, that “[a]ll parties to the proceedings in the lower court shall be parties on appeal . . . .” (Emphasis supplied.) We agree that a plain reading of the statute lends itself to but one construction, to wit, once a notice of appeal is timely filed, “all parties to all proceedings in the lower court are parties on appeal,” Centennial Ins. Co. v. Sandner, Inc., 259 Ga. 317 (380 SE2d 704) (1989), and may, subject to the rules governing practice before this court, participate in the appellate process. See also McClure v. Gower, 259 Ga. 678 (385 SE2d 271) (1989), citing Munday v. Brissette, 113 Ga. App. 147, 150 (1) (148 SE2d 55) (1966), rev’d on other grounds, 222 Ga. 162 (149 SE2d 110) (1966). Contrary to Southeastern’s assertions, we do not believe that OCGA § 5-6-38 requires a different result. That section merely provides that “[a] notice of appeal shall be filed . . . .” It does not provide, nor do we construe it to require, that in cases in which one judgment is entered against multiple litigants each party seeking appellate review must file a separate notice of appeal in order to be heard by this court.

Based on the foregoing, and mindful of the legislative intent that the Appellate Practice Act is to be liberally construed in order to bring about a decision on the merits of every case appealed, see OCGA § 5-6-30, we conclude that Southeastern’s motion to dismiss should be denied.

2. Defendants enumerate as error the trial court’s grant of Southeastern’s motion for summary judgment arguing that a material issue of fact remained as to the amount which defendants were obligated to pay under the terms of the Guaranty of Payment contracts. Specifically, defendants argue that they were only obligated to pay the amounts due to Southeastern on Sunbelt’s open account, which they contend does not include the balance owing to Southeastern on the promissory note executed by Sunbelt in January 1987. Southeastern argues that the promissory note was executed as additional security for the amount then owing by Sunbelt on its open account and hence under the terms of the Guaranty of Payment contracts defendants were liable for that amount also.

The Guaranty of Payment contracts provide, in relevant part, that the guarantor “unconditionally guarantee(s) the payment of Obligor’s account with Southeastern Sash & Door Company, and all expenses (including attorney’s fees) incurred in the collection thereof. As used herein ‘Obligor’s account’ shall mean the balance of the amount presently or hereafter owed by Obligor to Southeastern for goods and services, and all interest and/or carrying charges added thereto.” There is no question that pursuant to the “presently or hereafter owed” language of the guaranty contracts the guarantors assumed liability for the balance of the outstanding plus amounts incurred in the future on the “Obligor’s account.” Consequently, we agree with Southeastern that the defendants were liable for the amounts owing on the promissory note to the extent that it secured amounts owing on Sunbelt’s account for goods and services with Southeastern. However, no evidence was presented to show the nature of the debt secured by the note. Although Southeastern contends that “[t]he amount of the promissory note executed by Sunbelt ... , reflected the amount owed by Sunbelt on its account at the time said note was executed” it provides no citation to the record in support of this contention.

“We are bound by the premise that in motions for summary judgment, the evidence must be construed most favorably toward the party opposing the grant of the same; and most unfavorably toward the party applying for the motion for summary judgment. All inferences and conclusions which arise from the evidence must be likewise construed. [Cits.] The cardinal rule of the summary procedure is that the court can neither resolve facts nor reconcile the issues but only look to ascertain if there is an issue. [Cit.] The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact and if the trial court is presented with a choice of inferences to be drawn from the facts, all inferences of fact from the proofs proffered [on the motion for summary judgment] must be drawn against the movant and in favor of the party opposing the motion. [Cits.]” Daniel v. Bank South Corp., 183 Ga. App. 274, 277 (358 SE2d 664) (1987). The evidence of record reveals a genuine issue of material fact remains as to whether the promissory note secured amounts owed by Sunbelt on its open account with Southeastern, and hence the amount of liability of the individual guarantors. Inasmuch as Southeastern failed to show that it was entitled to judgment as a matter of law, the trial court’s order granting Southeastern’s motion for summary judgment must be reversed. Accord Meadows v. Phillips, 188 Ga. App. 377 (373 SE2d 27) (1988).

3. Because we have determined that issues remain for resolution by a jury, it is unnecessary for us to consider defendants’ enumeration concerning the trial court’s award of attorney fees in its summary judgment order or defendants Marsh and Futch’s motion to strike.

Judgment reversed.

Banke, P. J., concurs. Sognier, J., concurs specially.

Sognier, Judge,

concurring specially.

I concur in the judgment, in Division 2, and in the result reached by the majority in Division 1. I write specially because I cannot agree with all that is said by the majority in Division 1.

I note initially that I understand fully the reasoning of the majority in light of the Supreme Court’s recent holdings in Centennial Ins. Co. v. Sandner, Inc., 259 Ga. 317 (380 SE2d 704) (1989) and McClure v. Gower, 259 Ga. 678 (385 SE2d 271) (1989) relying in part on OCGA § 5-6-37’s provision that “[a] 11 parties to the proceedings in the lower court shall be parties on appeal.” I must note, however, that although both the Supreme Court and the majority cite Munday v. Brissette, 113 Ga. App. 147, 150 (148 SE2d 55), rev’d Brissette v. Munday, 222 Ga. 162 (149 SE2d 110) (1966), to support their construction of the language in OCGA § 5-6-37 as mandatory, it is clear from the Supreme Court’s holding in Brissette, supra, specifically reversing that holding in Munday, that an exception exists, because “ ‘[i]t is well settled that where several are sued at law or in equity and a several decree or verdict is had, a new trial as to one will not disturb the other.’ [Cit.]” Id. at 163. See also Willingham v. Field, 65 Ga. 440, 444 (1880). Accordingly, in my view the scope of OCGA § 5-6-37 is not broad, all-encompassing, or without exception. Rather, it appears that a determination as to whether parties to the proceedings below are parties to an appeal (in the usual sense, rather than just in the sense of parties entitled to notice of the appeal) depends on the nature of their interest in the judgment below. More specifically, co-defendants against whom judgments have been entered which are entirely several, rather than joint, are not parties to the appeal of a co-defendant. I do not believe the recent Supreme Court decisions in Centennial Ins. Co. and McClure, supra, changed the law in this regard, as they dealt with questions different from that presented here, and in neither case was Brissette or Willingham overruled.

In Smiway, Inc. v. Dept. of Transp., 178 Ga. App. 414, 419 (7) (343 SE2d 497) (1986), a condemnation action in which the State sought to condemn property owned by one party and leased to another, only the lessee appealed from the judgment below awarding a sum certain to the owner alone. The owner argued that as to her the judgment was final and enforceable. This court did not agree, noting that although the general rule is that where multiple parties are sued and a several decree or verdict is had, a new trial as to one will not disturb the other, as set forth in Brissette and Willingham, supra, that rule was inapplicable because “the respective interests of [the lessee] and [the owner] are not several. ... A new trial as to [the lessee] cannot be had without affecting [the owner’s] right as lessor to compensation for the same piece of property.” Id.

I find the Smiway rationale applicable to this case. In the case at bar, Marsden, Marsh, and Futch each signed a separate Guaranty of Payment contract for the debt of Sunbelt, and it might appear at first blush that the judgments against them would be several rather than joint. However, if liable, each would be liable for the same debt and consequently the trial court, no doubt recognizing this, entered summary judgment against all three, jointly and severally. This was proper, as in this case were their liability entirely several, Marsh and Futch would not be parties to this appeal, and a reversal of the summary judgment against Marsden followed by a subsequent verdict in his favor at a trial would expose Marsh and Futch to possible liability for the entire amount, with no right of contribution from Marsden.

Decided November 20, 1989.

Curtis R. Boren, for appellant.

Moore & Rogers, Robert D. Ingram, for appellee.

Accordingly, under the specific facts in this case, in which the interests of the three co-defendants below are joint, as well as several, and reversal of the summary judgment as to Marsden followed by trial cannot be had without affecting the rights of Marsh and Futch, I agree that it is proper to allow Marsh and Futch to participate in this appeal despite the fact that they did not follow the proper procedure.


text:
    A89A1412.
    WAGES v. ATLANTA METRO TAXICAB GROUP, INC.
    (388 SE2d 733)
   Beasley, Judge.

Wages, a lessee driver of Atlanta Metro, appeals the grant of partial summary judgment to Atlanta Metro on the issue of penalties and attorney fees under OCGA § 33-34-6.

Wages was injured in a traffic accident on March 1, 1986. Atlanta Metro was a self-insurer and Wages submitted his medical bills directly to it. Wages went to Kennestone Hospital the day of the accident and was treated as an outpatient. Thereafter, he saw Dr. Khouri and a chiropractor. Some of the bills which he submitted were paid, but Atlanta Metro questioned whether some of Dr. Khouri’s tests and treatment, as well as some of the chiropractic care, were related to the accident.

On March 10, Atlanta Metro sent the following letter to Wages: “Please be informed that we have set you an appointment for the 19th of March with Dr. Howland and Jones. . . . Please make arrangements to be there as it could hinder your benefits.”

Wages’ affidavit states that he understood that the examination was for workers’ compensation to which he did not believe he was entitled and that was why he did not attend. On March 19, Atlanta Metro ceased paying benefits, based on Wages’ failure to appear for the examination. Wages’ attorney was notified by letter of March 21 and responded by letter of April 22. He explained Wages’ misunderstanding and proposed that an I.M.E. be conducted by an orthopedist to be agreed upon from a panel of three. No response to this letter was made by Atlanta Metro.

In November, Atlanta Metro referred all the medical information to Dr. Howland, who affirmed that Wages had suffered neck and low back injuries. He also said: “I cannot comment on the chiropractic treatment since this is beyond my field of expertise. In my opinion chiropractic treatment is not indicated.” While he allowed that some of the tests performed by Dr. Khouri may have been medically necessary, he did not believe they were related to the automobile accident. Dr. Khouri’s affidavit stated that all of the tests were directly caused by the automobile accident.

OCGA § 33-34-6 requires that benefits must be paid monthly as they accrue; that they are overdue if not paid within thirty days of receipt of reasonable proof of the fact and amount of the loss; and that if the insurer fails to pay, “the insurer must show that its failure to pay was in good faith. ...”

While an insurer may require that an insured comply with the terms of the policy, including an independent medical examination, that right is limited by the reasonableness of its exercise. Falagian v. Leader Nat. Ins. Co., 167 Ga. App. 800, 801 (307 SE2d 698) (1983).

Atlanta Metro is a self-insurer, according to its summary judgment affidavit. OCGA §§ 33-34-2 (12); 40-9-101 (a) (2). The plan and certificate issued to a self-insurer are the equivalent of a policy of insurance under the no-fault act. Twyman v. Robinson, 255 Ga. 711, 712 (342 SE2d 313) (1986). These documents are not part of the record, so there is no proof that the insurer had a right to require an independent medical examination. Even if such a right existed, the letter sent by Atlanta Metro did not clearly invoke it. Moreover, Wages did not refuse an independent exam, as evidenced by the letter of April 22.

The existence of the unpaid chiropractic bills alone is enough under the circumstances to defeat the summary judgment motion. Atlanta Metro’s doctor first stated he was unqualified to judge the need for chiropractic care, then opined it was unnecessary. This opinion, which was not even obtained until November, did not provide an adequate basis for questioning the bills. See Canal Ins. Co. v. Henderson, 183 Ga. App. 880, 881 (1) (360 SE2d 435) (1987).

The insurer’s good faith or lack thereof is generally a question for the jury. Binns v. MARTA, 250 Ga. 847, 848 (301 SE2d 877) (1983); Bituminous Cas. Corp. v. Mowery, 145 Ga. App. 45, 53 (2) (244 SE2d 573) (1978); Canal, supra; Hufstetler v. Intl. Indem. Co., 183 Ga. App. 606, 607 (2) (359 SE2d 399) (1987) (physical precedent). This is such a case. Compare Saxon v. Colonial Ins. Co. &c., 188 Ga. App. 404 (1) (373 SE2d 91) (1988); Ricks v. Hanover Ins. Co., 191 Ga. App. 246 (2) (381 SE2d 411) (1989).

Decided November 20, 1989.

Joe A. Weeks, for appellant.

Parkerson & Shelfer, I. J. Parkerson, for appellee.

Judgment reversed.

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


author: Benham, Judge.

text:
    A89A1594.
    KEATON v. THE STATE.
    (388 SE2d 737)
    Decided November 20, 1989.

      Loftiss, Van Heiningen & Ward, Walter Van Heiningen, for appellant.

      H. Lamar Cole, District Attorney, James E. Hardy, Assistant District Attorney, for appellee.
   Benham, Judge.

The sole issue in this case is whether appellant’s conviction for aggravated battery merges as a matter of fact with his conviction for armed robbery. We find it does not, and affirm.

The evidence of record authorized the jury to find that appellant entered a store, menaced the proprietress with a knife while telling her she would not be hurt if she gave him all the money in the store, required her to take the money from the register and hand it to him, then directed her to enter a storeroom, where he stabbed her numerous times, causing permanent injuries. Since the evidence shows that the robbery was complete before the stabbings occurred, and the evidence of neither offense was necessary to prove the other, there is no merger. McCulligh v. State, 169 Ga. App. 717 (4) (314 SE2d 724) (1984); Dunbar v. State, 163 Ga. App. 243 (2) (292 SE2d 897) (1982); Miller v. State, 155 Ga. App. 54 (5) (270 SE2d 466) (1980).

Judgment affirmed.

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


text:
    A89A1609.
    SCAVONNE v. THE STATE.
    (388 SE2d 375)
   Benham, Judge.

Appellant was found guilty of homicide by vehicle. See OCGA § 40-6-393 (a).

1. Appellant contends the trial court erred when it denied his motion for a directed verdict. A defendant is entitled to a directed verdict “[w] here there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. . . .” OCGA § 17-9-1 (a). The State presented evidence that appellant was driving a car which crossed the centerline and struck an approaching vehicle, killing a person in the approaching vehicle. The investigating officer detected the odor of alcohol about appellant and noticed empty as well as unopened beer cans strewn about appellant’s car. Appellant told the officer that he had consumed a beer approximately 1-3/4 to 2 hours before the collision, and a gas chromatography on a sample of appellant’s blood removed from appellant 1-1/3 hours after the collision revealed a .09 blood alcohol content. The GBI forensic chemist who performed the gas chromatography testified that the blood alcohol level rises from the time one imbibes until approximately 1-1/2 hours later, at which point it begins decreasing due to dissipation via metabolism. The average dissipation rate is .015 grams per hour, and alcohol does not continue dissipating once the blood is removed from a body. The forensic chemist opined that if the blood alcohol level were .09 1-1/3 hours after a collision, the blood alcohol rate at the time of collision would have been between .11 and .12. Inasmuch as the evidence authorized the jury to conclude beyond a reasonable doubt that appellant was driving his vehicle while under the influence of alcohol and caused the death of another, the trial court did not err in denying appellant’s motion for a directed verdict. Davis v. State, 187 Ga. App. 517 (3) (370 SE2d 779) (1988).

2. Using a photograph depicting a young man, a young woman, and a child, the investigating officer identified the young woman as the deceased victim named in the indictment. Appellant objected, arguing that the admission of the family portrait was prejudicial. The assistant district attorney stated that the proffered photograph of the victim was the only legible one he could find.

“We find the photograph depicting the victim in life was, in conjunction with the officer’s identification testimony, admissible to prove an ‘element of the corpus delicti; that is, that the person alleged to have been killed is actually dead.’ [Cits.] It was necessary for the State to establish the identity of the victim. No other evidence of identity was offered at trial. ... [A] photograph relevant and material to the issues is not excludable on the ground that it is prejudicial. [Cit.] Under these circumstances we find no error.” Sizemore v. State, 251 Ga. 867 (2) (310 SE2d 227) (1984).

3. Appellant contends the trial court committed reversible error in failing to charge the jury on proximate cause and failing to give the jury the charge on accident submitted by appellant. A review of the jury instructions established that the trial court gave appropriate charges on the two subject matters. “ ‘Where the charge given substantially covers the applicable principles, failure to give requested instructions in the exact language requested is not error.’ ” Davis v. State, 169 Ga. App. 386 (3) (313 SE2d 109) (1984).

Decided November 20, 1989.

Thacker & Thacker, Louis C. Thacker, for appellant.

W. Fletcher Sams, District Attorney, William T. McBroom, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A89A2324.
    DICKERSON v. THE STATE.
    (388 SE2d 736)
   Deen, Presiding Judge.

The appellant, Scotty Dickerson, was convicted of making an improper right turn and underage possession of alcohol.

A Cobb County police officer stopped Dickerson after observing him make a right turn from the left turn lane onto another road in Cobb County. While talking with Dickerson, the police officer noticed a faint odor of alcohol and asked Dickerson if he had been drinking. Dickerson acknowledged that he had drunk a part of a beer at a nearby shopping center. An alco-sensor test was positive for alcohol, and the police officer arrested Dickerson. Held:

1. On appeal, Dickerson seems to contend that the State failed to prove venue because it was not shown whether the traffic violation and stop occurred outside or inside the incorporated limits of the City of Smyrna. Relying upon Ga. Const., Art. IX, Sec. II, Par. Ill (b), which states that unless otherwise provided by law, no county may exercise police powers inside the boundaries of a municipality except by contract with the municipality affected, Dickerson further contends that his arrest by the county police officer was unauthorized, since the State failed to prove a contract between the county and the City of Smyrna.

Venue in this case was proven by the uncontradicted testimony of the arresting officer that the traffic violation and stop took place in Cobb County. See Green v. State, 182 Ga. App. 695 (1) (356 SE2d 673) (1987). The arresting officer, having witnessed the actual traffic violation, was authorized to arrest Dickerson under OCGA § 17-4-23. Compare Glazner v. State, 170 Ga. App. 810 (318 SE2d 233) (1984). Dickerson’s contentions are without merit.

Decided November 20, 1989.

Frank G. Smith, for appellant.

Patrick H. Head, Solicitor, Beverly M. Hartung, Diane L. Matassino, Assistant Solicitors, for appellee.

2. The evidence regarding Dickerson’s underage possession of alcohol, in violation of OCGA § 3-3-23, was sufficient to authorize a rational trier of fact to find him guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A1258.
    PRESTO v. SCIENTIFIC-ATLANTA, INC.
    (388 SE2d 719)
   Benham, Judge.

This appeal is from the grant of summary judgment to appelleeemployer in a suit having its basis in a claim of wrongful termination. The trial court found that the uncontradicted evidence demanded the conclusion that appellant had no enforceable contract of employment and that his employment was, therefore, terminable at will. We agree and affirm.

1. In his first two enumerations of error, appellant complains of the trial court’s findings that there was no written contract of employment and that the asserted oral contract was barred by the Statute of Frauds. Although he admits that there was no single signed document on which he could rely as a contract of employment, appellant contends that his oral acceptance of a written offer of employment constituted a written contract of employment. However, as was the case in American Standard v. Jessee, 150 Ga. App. 663 (1) (258 SE2d 240) (1979), the purported contract was within the Statute of Frauds because it was not to be performed within a year of the date it was alleged to have been made. That being so, it was necessary that the essential terms, such as the duration of the contract, be included in the writing. Gatins v. NCR Corp., 180 Ga. App. 595, 596-597 (349 SE2d 818) (1986). The writing on which appellant relies does not include the duration of the contract, so the contract is incomplete and unenforceable. American Standard v. Jessee, supra. The trial court was correct, therefore, in ruling that the asserted contract of employment was within the Statute of Frauds and that since there was no written contract, there was no contract of employment which appellant could enforce.

2. In his third enumeration of error, appellant contends that a provision in a stock option granted him by appellee constituted an implied promise to continue appellant’s employment for three years. The stock option provided that it could be exercised only if appellant remained employed by appellee for three years. Essentially the same argument, without the title of implied promise, was rejected by this court in Lowe v. Royal Crown Cola, 132 Ga. App. 37 (1) (207 SE2d 620) (1974), and we do not find any new vigor added to the argument by the new name.

3. Appellant’s fourth and sixth enumerations of error concern the trial court’s rejection of claims based on theories of promissory estoppel and fraud. Reasonable reliance is an element of both promissory estoppel (Fidelity &c. of Md. v. West Point Constr. Co., 178 Ga. App. 578 (1) (344 SE2d 268) (1986)) and fraud. Godwin v. City of Bainbridge, 172 Ga. App. 290 (2) (322 SE2d 733) (1984). Promises which are wholly unenforceable, as we have held appellant’s purported contract of employment to be, may not be relied upon. Id. Insofar as appellant’s claims based on promissory estoppel and fraud are premised on the promises in the purported employment contract, the claims must fail. There is no question that the promissory estoppel claim is based on the purported contract, so that claim was properly resolved against appellant. As appellee correctly points out, appellant’s position in the trial court on the fraud claim was that misrepresentations about the level of business conducted by appellee misled him about the amount of compensation which would be due him. It is clear, therefore, that the fraud claim is also based on the promises alleged to be in the contract of employment, and was also properly resolved adversely to appellant.

4. In his fifth enumeration of error, appellant asserts that his act of leaving another job to take the job with appellee was such part performance of his contract as would take it out of the Statute of Frauds. That contention is controlled adversely to him by Hudson v. Venture Indus., 243 Ga. 116, 119 (252 SE2d 606) (1979), where it was held that giving up another job, moving' to a new location, and starting employment are not such part performance as will take a contract of employment out of the Statute of Frauds because those acts are not inconsistent with employment terminable at will without a contract.

5. After the time for filing a brief and enumeration of errors, and after an extension of that time, appellant filed two additional enumerations of error. He contends that he should be permitted to assert those additional enumerations of error because the entire record had not been sent to this court before docketing as required by the rules of this court. Rule 21 (a), Rules of the Court of Appeals. However, the supplemental record contains a single exhibit to which appellant made specific reference in his original brief. It is clear, then, that any delay in completing the record had no part to play in appellant’s failure to include in his original brief and enumeration of errors the issues he sought to raise in his additional enumeration of errors. We see no reason, therefore, to depart from the rule that an enumeration of error may not be amended after the time for filing has expired. In re Crudup, 149 Ga. App. 214, 215 (253 SE2d 802) (1979).

Decided November 8, 1989

Rehearing denied November 21, 1989

Charles A. Presto, pro se.

Kilpatrick & Cody, Susan A. Cahoon, Michael W. Tyler, for appellee.

Judgment affirmed.

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


text:
    A89A1438.
    MEDLIN et al. v. ROYSTON LUMBER & BUILDING SUPPLY, INC. et al.
    (388 SE2d 861)
   Benham, Judge.

Appellants, husband and wife, sued appellees, employer and employee, for injuries Mr. Medlin suffered in a collision between a car in which he was a passenger and a truck driven by appellee Harbert in the course of his employment with Royston Lumber, and for Mrs. Medlin’s loss of consortium resulting from Mr. Medlin’s injuries. Having sought damages of $141,760.14 for Mr. Medlin and $35,000 for Mrs. Medlin, appellants bring this appeal from a judgment entered on a verdict awarding him $15,000.78, and awarding her $1,000.

1. Appellants’ first enumeration of error is that the trial court erred in denying their motion for new trial on the ground that the verdict was infected by improper contact between two jurors and the owner of the corporate defendant, Hart. Evidence adduced by appellants in support of that ground of their motion showed that they saw the jurors speaking to Hart and reported the contact to a bailiff; that the bailiff reported the contact to the trial judge, who directed the bailiff to instruct appellants to take the matter up with their attorney; that the bailiff did so; and that appellants did not tell their attorney until after judgment had been entered in the case. Evidence taken in opposition to that ground of the motion showed that Hart stepped out of the courthouse for fresh air while the charge conference was being conducted in chambers; that two jurors walked up to the courthouse and one of them greeted him; that he and the juror briefly discussed masonry work in progress across the street; and that no conversation related to the trial took place at all. There was no evidence contradictory of that submitted in opposition to the motion.

Assuming that the issue was properly before the trial court (but see Rogers v. Martin, 32 Ga. App. 650 (1) (124 SE 358) (1924), holding that the issue is waived “when the party objecting had acquired knowledge of such fact before the jury retired”), there was no error in denying the motion on that ground because the uncontradicted evidence showed that no impropriety occurred. Glennville Wood &c. Co. v. Riddlespur, 156 Ga. App. 578 (3) (276 SE2d 248) (1980); Rogers v. Martin, supra, Division 2.

2. In their second enumeration of error, appellants complain of the denial of their motion for new trial on .the ground that the trial court erroneously excluded from evidence redirect examination testimony of a physician whose videotaped deposition was introduced by agreement of the parties. Their complaint on this issue has two parts, one procedural and the other evidentiary.

Appellants first argue that appellees had no standing to object at trial to the admission of the redirect examination testimony because it had been stipulated at the taking of the deposition that all objections would be made at the taking of the deposition. The record does not support that assertion. The transcript of the deposition reveals that the parties showed some confusion concerning when and how objections would be made, but concluded their discussion of the matter with an agreement that the Civil Practice Act would control. As the trial court pointed out in its order denying the motion for new trial, OCGA § 9-11-32 (b) provides, subject to subsection (d) (3), that objections to deposition testimony may be made at trial on any ground which could be raised if the witness were present. OCGA § 9-11-32 (d) (3) (A) provides that objections not made at the taking of the deposition are not waived unless the ground of the objection was one which might have been obviated or removed if presented at the time. The objection here sustained was that the redirect examination was not directed at matters addressed on cross-examination, but was merely an effort to repeat testimony favorable to the plaintiff. That is clearly an objection which could be made if the witness were present and is one which could not be obviated if it had been made at the time of the taking of the deposition. Accordingly, we find no waiver of the objection.

Neither do we find error in the trial court’s exclusion of the redirect examination testimony. The witness testified on direct testimony that Mr. Medlin had a specified percentage of disability. After cross-examination, during which the degree of disability was not addressed, appellants elicited testimony that the witness still assigned the same percentage of disability. “The extent of re-direct examination of a witness is left to the trial judge’s sound discretion. [Cit.] The objected-to testimony was repetitive of [the witness’s] prior testimony. Further, it would not have rebutted the prior testimony [on cross-examination]. The trial judge acted within his sound discretion in refusing to allow the objected-to testimony.” Hortman v. Gresham, 137 Ga. App. 253 (2) (223 SE2d 285) (1976). The denial of appellants’ motion for new trial on that ground was not error.

Decided November 8, 1989

Rehearing denied November 21, 1989

Stephen C. Carter, William 0. Carter, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Douglas A. Wilde, Rodger E. Davison, Blasingame, Burch, Garrard & Bry ant, Rodger E. Davison, for appellees.

3. The third and fourth enumerations of error are directed to the size of the jury’s award to appellants. Appellants contend the awards are so grossly inadequate as to shock the conscience. “[T]he standard for the award of general damages for pain and suffering is the enlightened consciences of fair and impartial jurors. [Cits.] The general rule on appeal of an award of damages is that a jury’s award cannot be successfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in the light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake on the part of the jurors. [Cits.] Even though the evidence is such as to authorize a greater or lesser award than that actually made, the appellate court will not disturb it unless it is so flagrant as to ‘shock the conscience.’ [Cits.]” Cullen v. Timm, 184 Ga. App. 80 (2) (360 SE2d 745) (1987). Although the evidence in the present case may well have supported a greater award to appellants, we do not find the award so inadequate as to create an implication of bias, prejudice, or gross mistake. There was evidence of Mr. Medlin’s continuing pain and difficulty in working, but there was also evidence of the degree of healing of the primary injury, a broken ankle, and of the fact that he was able to do some amount of work. Appellants contend that the juror contact addressed above, taken together with the size of the verdict, demands the conclusion of prejudice and bias. We cannot agree. The evidence showed the contact to be innocuous, and all that appellants can objectively show in support of this contention of error is the size of the verdict itself. Given all the evidence in the case, we do not find the award to be so inadequate as to warrant appellate interference.

4. Appellants’ final enumeration of error is no more than a summary of the first four and presents no independent basis for reversal. Having found no reason in the first four enumerations of error, we find none in the fifth.

Judgment affirmed.

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


text:
    A89A1529.
    A89A1530.
    McGUIRT et al. v. LAWRENCE. LAWRENCE v. STATE OF GEORGIA.
    (389 SE2d 2)
   Benham, Judge.

After receiving severe burns from contact with an electrical transmission line while riding atop a house being moved on a highway, Lawrence sued a large number of persons and governmental entities, finally getting a jury verdict and judgment against the Georgia Public Service Commission (PSC) and its employee McGuirt. In Case No. A89A1529, the PSC and McGuirt appeal the judgment against them, while Lawrence, in Case No. A89A1530, appeals the denial of his motion to dismiss the main appeal.

1. The basis for Lawrence’s motion to dismiss the main appeal was that the transcript of the trial was not filed within the 30 days mandated by OCGA § 5-6-42 and that counsel for the PSC and McGuirt did not seek an extension of time to file it pursuant to OCGA § 5-6-39 until after the time for filing had expired. The trial court denied the motion based on its finding that the delay in filing the transcript was not unreasonable and was not caused by appellants. “Failure of the appellant, to request an extension for the filing of the transcript is not in itself a ground for dismissal of the appeal absent a judicial determination that the resulting delay was both unreasonable and inexcusable. [Cit.]” Glen Restaurants v. Bldg. 5 Assoc., 189 Ga. App. 327 (2) (375 SE2d 492) (1988). There being no such determination in this case, we find no error in the denial of Lawrence’s motion to dismiss the main appeal.

2. As appellee states in his brief, the basis of the liability asserted against the PSC and McGuirt was McGuirt’s negligence in failing to stop the moving house because of asserted violations of PSC and Department of Transportation regulations. Specifically, Lawrence asserts that McGuirt should have stopped the house and measured its height and then ensured that the mover of the house was complying with all regulations pertaining to the movement of houses of the size of the one Lawrence was riding. However, the evidence is uncontradicted that McGuirt was not dispatched to the house for the purpose of inspecting the mover’s compliance with safety regulations. While there is evidence in the record that McGuirt would have general authority to enforce regulations of other state agencies, the fact is that he was not on duty for that purpose at the time he observed the house being moved prior to the occurrence of Lawrence’s injury.

Analogous to the situation in this case would be that of a police detective who drove behind a car which later caused a collision because it had defective brake lights. If we impose liability on McGuirt and the PSC for failure to enforce laws which were not within the scope of McGuirt’s immediate mission, we would be bound to hold the detective and the police force which employed him liable for any injuries suffered by the driver of the car which later ran into the rear end of the car with defective brake lights. While there would unquestionably be liability on the part of someone in that situation, we do not believe it would be the detective, and we do not believe it would be McGuirt and the PSC in the present case. It being apparent that McGuirt did nothing to restrict Lawrence’s freedom to protect himself, to expose Lawrence to greater danger than that in which he and his employer placed him, or otherwise to adversely affect Lawrence’s position, McGuirt acquired no legal duty to protect Lawrence either from the consequences of his own behavior or from the negligence of others. Ferguson v. City of Doraville, 186 Ga. App. 430 (1) (367 SE2d 551) (1988), overruled in part on other grounds, Vogtle v. Coleman, 259 Ga. 115 (fn. 8) (376 SE2d 861) (1989). Accordingly, we hold that the trial court erred in denying the motion for directed verdict made by McGuirt and the PSC on the ground that McGuirt had breached no duty to Lawrence.

Decided November 8, 1989

Rehearing denied November 21, 1989

Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Harrison W. Kohler, Deputy Attorney General, Roland F. Matson, Charles M. Richards, Senior Assistant Attorneys General, for McGuirt and State of Ga.

J. Edward Wall, Jr., for Lawrence.

3. The holding in the preceding division being dispositive of this appeal, McGuirt’s and the PSC’s other enumerations of error need not be addressed.

Judgment affirmed in Case No. A89A1530. Judgment reversed in Case No. A89A1529.

Birdsong, J., concurs. Deen, P. J., concurs in Division 1 and the judgment.