text:
    A97A0535.
    SCOTT et al. v. GRANT.
    (487 SE2d 627)
   Andrews, Chief Judge.

We granted this interlocutory appeal to determine whether the probate court erred in determining that Ruby Scott’s petition for year’s support was a nullity because certain of the decedent’s creditors did not receive notice of the year’s support proceeding. We find that it did and reverse.

Alfred James Scott died intestate on January 20,1994, and Ruby Scott, his widow, filed an Application for Twelve Months’ Support on March 13, 1995. Scott listed Ms. Grant and Saylance Scott as interested persons on her application. The court issued an order requiring that any caveat or objection to the application be filed before the first Monday in May 1995. No objections were filed and the court granted the application on June 2, 1995.

On July 3, 1995, Ms. Grant filed a Motion for New Trial and later an Amended Motion for New Trial in which she alleged that Scott’s list of interested persons was incomplete. We have no transcript of the hearing on the motion for new trial, but apparently Grant contended that First Union National Bank, which held a mortgage on one of the pieces of property set aside for the year’s support, did not receive notice. Grant also claimed that a church and a granddaughter of the decedent were not notified.

The probate court granted the motion for new trial, finding that because all interested persons were not notified, the trial court’s order granting the application was void ab initio. Subsequently, Alfred Scott, a grandson of the decedent, filed a motion to vacate the court’s order granting a new trial. He claimed that the order granting the motion for new trial placed a cloud on the title to land Ruby Scott deeded to him out of the property set aside to her for the year’s support. The trial court denied the motion to vacate the order granting the motion for new trial and this appeal followed.

OCGA § 53-5-8 (c) (2) provides that the applicant for year’s support must file an affidavit with the probate court showing the name, last known address, and age (if less than 18) of each interested person and stating that the applicant has listed the names of all interested persons known to him and has made reasonable inquiry to ascertain the names and addresses of any interested persons. “Interested person” is defined as the “decedent’s heirs, devisees, children, spouse, creditors, beneficiaries, and any others having a property right in or claim against the estate of a decedent which may be affected by the year’s support proceeding.” OCGA § 53-5-8 (c) (2).

The sole issue before us on appeal is whether the application for year’s support was void ab initio, as the probate court found, or merely voidable at the election of an interested party who did not receive notice. The probate court’s order lists a church, a bank and a granddaughter as interested persons who did not receive notice. It is not alleged that they did not have actual knowledge of the proceeding and no reason is given why they themselves have put forward no objection.

The bank is protected in any case because OCGA § 53-5-17 provides that an unpaid purchase money mortgage is superior to the right to a year’s support. As to the church, the probate court found it already had been paid for funeral expenses. While the probate court’s order also states the church had an “interest” in a 1986 Dodge van which was part of the property set aside for the year’s support, it does not state the type of interest held. There is no mention in the record of the granddaughter except for the court’s order stating that a granddaughter who ran the decedent’s barbershop after his death and lived on one of the parcels of real estate set aside for the year’s support was not listed as an interested person.

Even assuming there were “interested persons” who were not listed on the widow’s application, this does not automatically render the grant of the application a nullity. The language of the statute itself mandates against this result.

OCGA § 53-5-8 states the applicant must submit an affidavit stating she has listed all interested persons known to [her] and has made reasonable inquiry to ascertain the names and addresses of all interested persons. This contemplates a situation where the widow may not be aware of certain persons who should be listed and also provides that she is not required to make an exhaustive search to determine the existence of these interested persons, but merely to make a “reasonable inquiry.” There is certainly no authority under the statute for declaring an order granting an application for year’s support to be void because there may be interested persons not listed.

Case law also supports this conclusion. The public policy behind the statutes awarding a year’s support dictates that the provisions of these statutes be construed in favor of the beneficiaries entitled to support. Ennis v. Ennis, 207 Ga. 665 (63 SE2d 887) (1951); Farmers Bank v. Williams, 188 Ga. 789 (5 SE2d 195) (1939). See also Olmstead v. Clark, 181 Ga. 478 (182 SE 513) (1935); Howard v. Howard, 150 Ga. App. 213 (257 SE2d 336) (1979) (statutes providing for a year’s support and fixing its priority are to be construed liberally in favor of the dependents). “The provision for a year’s support out of the estate of a decedent is an anomaly dictated solely by a very humanitarian public policy and in its administration this public policy should not be overlooked or disregarded in any instance.” Grant v. Sosebee, 169 Ga. 658 (151 SE 336) (1929). “Its provisions are highly beneficial. The courts, in passing upon cases involving the rights of the beneficiaries under such statutes, should keep in mind the beneficial and benevolent purposes of the law and should jealously protect rights accruing thereunder. The ends to be obtained under the act are not to be encumbered with technicalities; and provisions contained therein which, if liberally construed, might seriously impede the purposes of the act should be strictly construed.” Montgomery v. McCants, 49 Ga. App. 324, 326 (175 SE 397) (1934). “Minor errors in stating or omitting beneficiaries have been uniformly held not to invalidate the proceedings.” Jones v. Fed. Land Bank of Columbia, 189 Ga. 419, 426 (6 SE2d 52) (1939).

Accordingly, keeping these precepts in mind, we find the probate court erred in finding the judgment to be void because the list of interested persons may have been incomplete. That is especially true in this instance where none of the allegedly interested persons is claiming they did not receive notice. Therefore, as the probate court incorrectly granted the motion for new trial on these grounds, it was error to deny the motion to vacate the order granting the motion for new trial. Smith v. Smith, 187 Ga. 743, 745 (2 SE2d 417) (1939) (where no caveat to the application is filed and a judgment has issued and been published as required by law, a court of equity will not set aside the judgment of the court of ordinary (now probate court) for irregularities).

Judgment reversed.

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

Decided June 4, 1997

Reconsideration denied June 19, 1997.

Murphy A. Cooper, Clarence L. Martin, for appellants.

Gannam & Gnann, Joseph M. Gannam, for appellee.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A97A0799.
    STAMEY v. THE STATE.
    (487 SE2d 652)
   Johnson, Judge.

Ray Stamey files this pro se appeal from the trial court’s denial of his extraordinary motion for new trial. Stamey argues he filed a motion to have personal property which was used as evidence in his trial returned to him, and did not “enter pleadings” for an extraordinary motion for new trial. He contends that the trial court erroneously ruled on an issue not presented and entered the order when the time for ruling on the motion for return of property had expired.

1. The trial court did not rule on an issue not presented. The record transmitted from the trial court does not include a motion for return of personal property. Although Stamey has attached a copy of a motion for return of property to his brief, the attachment is not part of the record and cannot be considered. See Bertone v. Wilkinson, 213 Ga. App. 255, 257 (444 SE2d 576) (1994). Contrary to Stamey’s assertion, the record does contain an extraordinary motion for new trial bearing his signature. Therefore, the court ruled on an issue properly before it.

2. The trial court did not abuse its discretion in denying Stamey’s extraordinary motion for new trial. Because his extraordinary motion for new trial was based upon newly discovered evidence, Stamey was required to satisfy all six requirements of Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980), as to the proffered evidence. Failure to satisfy any one of these requirements is sufficient to deny an extraordinary motion for new trial. Datz v. State, 210 Ga. App. 517 (2) (436 SE2d 506) (1993). In his motion, Stamey simply restated the requirements set forth in Timberlake. He did nothing to satisfy the criteria. He did not identify the newly discovered evidence or attach a witness affidavit to the motion or account for its absence. Under these circumstances, the trial court did not abuse its discretion by denying the motion. See generally Merka v. State, 201 Ga. App. 471, 472 (2) (411 SE2d 357) (1991).

3. Stamey’s argument that the trial court was not authorized to enter an order on the extraordinary motion for new trial after the time for ruling on the motion for return of property expired is without merit. Furthermore, any issues raised regarding the motion for return of property are, for the reasons discussed in Division 1, not properly before us.

Decided June 10, 1997

Reconsideration denied June 19, 1997

Ray H. Stamey, pro se.

David McDade, District Attorney, for appellee.

Judgment affirmed.

Pope, P. J, and Blackburn, J., concur.


author: McMurray, Presiding Judge.

text:
    A97A1254.
    HOWARD v. THE STATE.
    (488 SE2d 489)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of a sole count of burglary. The 68-year-old victim, Mary D. Ellison, identified defendant as the “the man [she saw] crawling at the foot of [her] bed,” at approximately 1:30 a.m. She affirmed she turned on a lamp and when she “touched the light. . . [h]e was . . . about two or three feet [away], because [she] was in bed.” Ellison “keep[s] [her] purse right there by the T.V., where [defendant] was crawling at, down there where he was crawling at.”

The victim knew defendant’s “parents. They live down the street [so the victim had] been knowing [defendant] a pretty good while.” Ellison spoke to defendant, saying “that [she] was going to get this gun and blow [defendant’s] brains out. And so, then he got up and backed and went on back out. He tried to get out the front door, but he couldn’t get out the front door. So he tried the back door. He left the back door open.”

Defendant subsequently contacted the victim and told her, “don’t testify. You tell them it wasn’t me. You can tell them it wasn’t me.” He “called [her] two times.” Defendant also accosted her in a grocery store, “trying to talk to [the victim] then, trying to — told [her] to drop the charges, to call you all [the authorities], call you all and drop the charges.” Defendant also threatened the victim, telling her “what he’s going to do to [her], . . .”

Officer Allen Little of the Columbus Police Department responded to a burglary call at the victim’s address. The victim “stated that she could point out the house [where the suspect lived], and she took [Officer Little] straight to [defendant’s] mother’s hpuse.” In the opinion of Special Agent Thomas James Davis, Sr., a polygraph examiner with the Georgia Bureau of Investigation, defendant was deceptive when he denied being in the victim’s bedroom that night. Gwendolyn Johnson, defendant’s former girl friend, was permitted to testify about a burglary at her apartment when someone stole her “T.V. and [her] telephone with the radio.” Two weeks later, defendant told Gwendolyn Johnson, “yeah, I broke into your house. . . .”

From the judgment of conviction and 20-year sentence, defendant brings this direct pro se appeal. Held:

1. Defendant first contends the trial court erred in admitting evidence of the separate burglary of Gwendolyn Johnson’s apartment. He argues the State never proved he committed that crime and so it is inadmissible, citing Salcedo v. State, 258 Ga. 870 (376 SE2d 360).

“In order for a similar transaction to be admissible, it is not required that the transaction resulted in a conviction.” (Citations and punctuation omitted.) Grier v. State, 218 Ga. App. 637, 639 (2) (463 SE2d 130). Accord Green v. State, 178 Ga. App. 203 (2), 204 (342 SE2d 386). Defendant’s reliance on Salcedo v. State, 258 Ga. 870, supra, is misplaced. In Salcedo, evidence of a prior alleged sexual assault was erroneously admitted where that defendant had been tried and “acquitted of sexual battery and burglary, [but] convicted of criminal trespass.” (Emphasis supplied.) Id. We find no error.

2. Over defendant’s hearsay objection, Geraldine Chambliss, Gwendolyn Johnson’s neighbor, was permitted to relate the observations of Cory Lewis, who watched as defendant allegedly burglarized the Johnson apartment. Defendant argues the State must show necessity to admit hearsay under OCGA § 24-3-1 (b) and here the State failed to do so.

The statement objected to is Cory Lewis’ observation to Geraldine Chambliss, “there ain’t nobody but Gwen’s baby’s daddy and he’s helping her move some stuff.” We assume, without deciding, this statement was not admissible under OCGA § 24-3-3 as an excited utterance and further assume it does not fit within any other recognized exception to the prohibition against hearsay. Nevertheless, we hold the admission of this irrelevant and nonprobative hearsay was harmless in this instance.

“Inadmissible hearsay which is received over objection does not require a new trial if it appears that the evidence could not have affected the verdict because other evidence by a witness with immediate and personal knowledge is sufficient to establish the fact in question. Lovett v. State, 60 Ga. 257; Parish v. State, 117 Ga. App. 616 (1) (161 SE2d 426).” Glass v. State, 235 Ga. 17, 18 (2), 19 (218 SE2d 776). Geraldine Chambliss testified from her personal knowledge that moments before, defendant was calling for Gwendolyn Johnson and that she subsequently heard “scrubbing” noises from the Johnson apartment as if furniture were being moved. Defendant subsequently admitted to Gwendolyn Johnson, “yeah, I broke into your house. . . .” This latter evidence, even if technically hearsay, is nevertheless admissible as an admission by defendant against his penal interest. OCGA § 24-3-31; Crossley v. Collins, 128 Ga. App. 889, 890 (2) (198 SE2d 428). Thus, there is competent evidence placing defendant in Gwendolyn Johnson’s apartment during that burglary. It follows the erroneous admission of hearsay evidence of that fact was harmless in this instance.

3. In his third enumeration, defendant contends the trial court abused its discretion in allowing the testimony of Special Agent Davis, who interpreted the results of defendant’s polygraph examination. He argues that the State violated his rights “by not furnishing [him] with the test results and a copy of the chart reading,” as envisioned in a stipulation.

The State and defendant “stipulated to [the] admissibility of the results of said polygraph.” The “results and/or opinions resulting from the examination [were] to be released orally and in writing by the polygraphist to both sides within fifteen days after the administration [of the polygraph].” The State’s attorney explained to the trial court that the written report “has three boxes, and it says, non-deceptive; deceptive; or inconclusive. And one of the boxes is checked. In this case, deceptive has been checked. That’s the written report we’re talking about. The day of the test, [defense counsel] was given oral notice that, in fact, [defendant] failed the test, and he was — there were signs of deceptiveness in his . . . chart readings. [Defense counsel] was given oral notice of that immediately.” Moreover, the State’s attorney “sen[t] him everything, including this written report, three or four weeks [before trial].” Defense counsel conceded he received oral notice.

In our view, the trial court was authorized to conclude that the failure to provide the written report within the 15 days envisaged by the stipulation did not amount to any material breach of that stipulation, since defense counsel was given immediate oral notice that defendant showed signs of deceptiveness and the written report confirming that interpretation was actually provided to the defense at least three weeks before trial. This enumeration is without merit.

4. Next, defendant contends the trial court “committed malpractice by not granting a mistrial on [its] own motion [and further] showed bias ... by violating OCGA § 17-8-57.”

“The present rule is that the question of whether OCGA § 17-8-57 has been violated is not reached unless an objection or motion for mistrial is made.” (Citations and punctuation omitted.) Cornelius v. State, 213 Ga. App. 766, 770 (3) (445 SE2d 800). Here, none was made. The references to the transcript do not support any contention that a mistrial was demanded because of manifest necessity to prevent a miscarriage of justice. The trial court did not err in failing to grant, sua sponte, a mistrial under these circumstances. Johnson v. State, 158 Ga. App. 398 (2), 399 (280 SE2d 419). Accord Assad v. State, 195 Ga. App. 692 (1) (394 SE2d 617).

Decided June 10, 1997

Reconsideration denied June 19, 1997

Roderick Howard, pro se.

5. Defendant’s fifth enumeration contends trial counsel “didn’t give appellant effective assistance of counsel.” But this claim was procedurally defaulted when defendant proceeded with this direct appeal rather than insisting on an evidentiary hearing as part of a motion for new trial. Chatman v. State, 265 Ga. 177, 178 (2) (453 SE2d 694).

6. Defendant challenges the sufficiency of the evidence.

(a) “On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys a presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Conflicts in the testimony of the witnesses, including the State’s witnesses, is a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citations and punctuation omitted.) Turner v. State, 223 Ga. App. 448, 449 (1) (a) (477 SE2d 847).

(b) “A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another. . . .” OCGA § 16-7-1 (a). Here, the State proved that Ellison’s dwelling was entered without her permission or authority. Brinson v. State, 208 Ga. App. 556, 557 (3), 558 (430 SE2d 875). The presence of valuables, such as Ellison’s television, is sufficient to support an inference of defendant’s intent to steal. Miller v. State, 208 Ga. App. 547 (1) (430 SE2d 873). In the case sub judice, the evidence was sufficient to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of burglary as alleged in the indictment.

(c) Defendant’s remaining contention that double jeopardy would preclude a retrial has been considered and found to be without merit.

Judgment affirmed.

Beasley and Smith, JJ, concur.

J Gray Conger, District Attorney, Patrick B. Moore, Assistant District Attorney, for appellee.


author: Birdsong, Presiding Judge.

text:
    A95A2465.
    INTEGON GENERAL INSURANCE CORPORATION v. THOMPSON et al.
    (487 SE2d 712)
    Decided June 19, 1997.

      Smith, Howard & Ajax, Michael D. St. Arnand, for appellant.

      Paul C. Parker & Associates, William S. Sarandis, Brack & Westee, Philip L. Westee, for appellees.

      Butler, Wooten, Overby & Cheeley, Albert M. Pearson III, amicus curiae.
   Birdsong, Presiding Judge.

In Duncan v. Integon Gen. Ins. Corp., 267 Ga. 646 (482 SE2d 325), the Supreme Court reversed the judgment of this Court in Integon Gen. Ins. Co. v. Thompson, 220 Ga. App. 631 (469 SE2d 346). Therefore, our judgment in this appeal is vacated, and the judgment of the Supreme Court is made the judgment of this Court. Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

Johnson and Smith, JJ., concur.


author: McMURRAY, Presiding Judge.

text:
    A97A0292.
    DEWS v. ROADWAY PACKAGE SYSTEM, INC. et al.
    (488 SE2d 94)
   McMURRAY, Presiding Judge.

James R. Dews, Sr. entered into a contract with Roadway Package System, Inc. (“Roadway”), a licensed motor carrier, agreeing to pick up and deliver packages for Roadway on certain routes. This contract includes a “merger” clause which provides that “[t]his Agreement, the Addenda hereto, and the Attachments to the Addenda, constitute the entire agreement and understanding between the parties and, when executed, shall constitute a revocation of any earlier Contractor Operating Agreement between the parties.”

Roadway severed its relationship with Dews after discovering that Dews had been driving his truck with a suspended driver’s license in violation of federal law as well as the parties’ agreement. Dews thereafter brought an action against Roadway and its agent, Dave Edmondson, for breach of contract, tortious interference, fraud and bad faith. Dews later dismissed his breach of contract and tortious interference claims because an arbitrator awarded him $15,000 on his breach of contract claim. Roadway and Edmondson then moved for summary judgment, pertinently arguing that Dews’ election to resolve his breach of contract and tortious interference claims under the contract’s arbitration clause — rather than rescinding the contract and pressing his fraud claim — foreclosed his right to recover for Roadway’s alleged antecedent fraud. See City Dodge v. Gardner, 232 Ga. 766, 770 (208 SE2d 794).

This appeal followed the trial court’s order granting Roadway’s and Edmondson’s motion for summary judgment. Held'.

Dews contends the trial court erred in granting Roadway’s and Edmondson’s motion for summary judgment, arguing that his election to arbitrate should not bar his fraud claims because the contract he entered into with Roadway required him to arbitrate before filing suit. This assertion is without merit. While the parties’ contract called for Dews to resolve his breach of contract claims via arbitration, it did not prohibit him from rescinding the contract and pursuing his fraud claims.

“In an action for fraud, ‘if the defrauded party has not rescinded but has elected to affirm the contract, he is relegated to a recovery in contract and the merger clause will prevent his recovery. This result obtains because where the allegedly defrauded party affirms a contract which contains a merger or disclaimer provision and retains the benefits, he is estopped from asserting that he relied upon the other party’s misrepresentation and his action for fraud must fail.’ (Citations and punctuation omitted.) Mitchell v. Head, 195 Ga. App. 427, 428 (394 SE2d 114) (1990); see also Carpenter v. Curtis, 196 Ga. App. 234 (395 SE2d 653) (1990) (physical precedent); Roller-Ice v. Skating Clubs of Ga., 192 Ga. App. 140, 142 (384 SE2d 235) (1989) (physical precedent).” American Demolition v. Hapeville Hotel, L.P., 202 Ga. App. 107, 108-109 (1) (413 SE2d 749). In the case sub judice, Dews made no effort to rescind the contract. On the contrary, he affirmed the contract by invoking the agreement’s arbitration clause and accepting the $15,000 arbitration award. Having made this election, Dews is bound by the contract’s “merger” clause. The trial court therefore did not err in granting summary judgment with regard to this aspect of Dews’ complaint.

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. Smith, J, concurs in the judgment only.

Decided June 19, 1997.

Cedric T. Leslie, for appellant.

Jones, Day, Reavis & Pogue, Elaine R. Walsh, Theresia M. Moser, for appellees.

       Dews pertinently alleged that Roadway prevented his drivers from servicing his routes while his driver’s license was suspended, unduly controlled his activities in violation of his status as an independent contractor, and duped him into executing the trucking agreement by representing that he would be an independent contractor rather than an employee.


author: Beasley, Judge.

text:
    A97A0368, A97A0369.
    OGLETREE v. NAVISTAR INTERNATIONAL TRANSPORTATION CORPORATION; and vice versa.
    (488 SE2d 97)
   Beasley, Judge.

This is a wrongful death action for the death of plaintiff Ogle-tree’s husband, who died as a result of injuries he sustained when a truck driven and owned by Campbell backed into him. The dispositive questions on appeal are whether the trial evidence that contradicted key summary judgment evidence considered by this Court in an earlier appeal changed the evidentiary posture of the case so as to preclude the application of the law of the case rule and, if so, whether j.n.o.v. was proper. Both questions are answered in the affirmative, and we affirm the j.n.o.v. in favor of the defendant.

Factual Background

On March 10, 1984, Campbell drove his fertilizer spreader truck to Colbert Seed Company to pick up a load of ammonia nitrate. The fertilizer was located in a compartmentalized bulk-transport trailer called a “Killebrew” which required off-loading from the side. The Killebrew was equipped with a hydraulic motor to transfer its contained material to the transport vehicle, which motor could be quite loud.

The decedent, a salesman for an agricultural supply company, met Campbell at the seed company and rode on the running board of Campbell’s truck to the area where the Killebrews were located. The decedent located the correct Killebrew, told Campbell, and disappeared from Campbell’s view. Campbell pulled up and, aided by his rearview mirrors, began to back around to come up alongside a Killebrew different from the one designated by the decedent. Having turned his back to the approaching vehicle, the decedent was standing at the presenting end of the correct Killebrew; its engine was probably running. Campbell’s view of the decedent being blocked by the fertilizer spreader body, Campbell struck and killed the decedent as Campbell mistakenly backed his truck up to the adjacent Killebrew.

Defendant Navistar International Transportation Corporation’s corporate predecessor manufactured the cab and chassis of the vehicle in 1978 and sold same to Penske Leasing. At that time, audible back-up alarms were available as optional equipment on the cab and chassis, but Penske did not request such a device, and one was not installed. Penske then had a van body installed on the vehicle, used the truck for some years, and then sold same to a Chevrolet dealership, which in turn sold the truck to Campbell. At Campbell’s request, the dealership removed the van body before delivering it to him. After having a repair facility shorten the chassis and frame rail of the vehicle, Campbell employed Newton Crouch, Inc. to mount a fertilizer spreader body on the chassis. No back-up alarm was added at any time, and the vehicle did not have an alarm when it struck Ogletree. In approximately 20 years of being in the fertilizer business, Campbell had never seen a fertilizer spreader with a back-up alarm, nor had any other witness (expert or otherwise) who testified at trial.

Procedural Background

Mrs. Ogletree, individually and as administratrix, sued Navistar for wrongful death, pain and suffering, and the funeral and medical expenses of her deceased husband. Other claims brought by Ogletree were later withdrawn or dismissed. Alleging that Navistar had a duty to design and manufacture the cab and chassis with due care for the safety of persons in the path of rearward movement of the vehicle, the amended complaint alleged Navistar breached that duty by failing to install an audible back-up alarm on the vehicle and by failing to place a warning on the vehicle that a back-up alarm was needed.

This is the fourth time this case has appeared before this Court. See Ogletree v. Navistar Intl. Transp. Corp., 221 Ga. App. 363 (471 SE2d 287) (1996) (“Ogletree III); Navistar Intl. Transp. Corp. v. Ogletree, 199 Ga. App. 699 (405 SE2d 884) (1991) (“Ogletree II); Ogletree v. Navistar Intl. Transp. Corp., 194 Ga. App. 41 (390 SE2d 61) (1989) (“Ogletree I). In the first appearance, Ogletree I, we reversed the trial court’s grant of summary judgment to Navistar. Based on the evidence of record at that point, we found that there was a question of fact whether Navistar owed a duty to the decedent to install the alarm, and whether the decedent had appreciated the danger he was in due to the lack of the alarm. This Court’s analysis of the latter question related in part to the “open and obvious rule,” which is that (1) a product is not defective if the absence of a safety device is open and obvious, and (2) there is no duty to warn of an obvious danger. Dingler v. Moran, 224 Ga. App. 59, 60 (479 SE2d 469) (1996); Coast Catamaran Corp. v. Mann, 171 Ga. App. 844 (321 SE2d 353) (1984), aff'd, 254 Ga. 201 (326 SE2d 436) (1985). In Ogletree I, we held that the user’s actual knowledge of the danger posed by a product was necessary to establish assumption of the risk and invoke the rule. Ogletree I, supra at 44-45.

Just over three months later, this Court held that the “open and ' obvious rule” applies if an objective view of the product discloses the absence of the safety device even though the user may not actually appreciate the danger posed by the product. Weatherby v. Honda Motor Co., Ltd., 195 Ga. App. 169, 171-172 (393 SE2d 64) (1990). Expressly overruling Ogletree I, the Court stated that “we should not have reversed the grant of summary judgment to” Navistar. Id. at 172.

Based on the same record considered in Ogletree I, Navistar then moved for summary judgment in reliance on Weatherby, which the trial court denied based on the law of the case rule. That led to Ogle-tree II, which held that “[b]ecause the evidentiary posture of the case as to the sole issue on appeal is identical to the posture at the time of the first appeal, the law of the case rule” bound both the parties and this Court to Ogletree I and precluded summary judgment. Ogletree II, supra at 701.

The matter was then tried to a jury, which found for the plaintiff and awarded $5,576 for funeral and medical expenses, zero dollars for the life of the decedent, and zero dollars for pain and suffering. Judgment was entered for Ogletree, but she moved for a new trial on the issue of damages. Navistar moved for a j.n.o.v. or, in the alternative, for a new trial. The trial court denied Ogletree’s motion and granted Navistar’s j.n.o.v. motion. Ogletree appealed both rulings.

On appeal, the Court in Ogletree III remanded the case to the trial court with direction to issue a ruling on Navistar’s conditional motion for a new trial. See OCGA § 9-11-50 (c) (l). The trial court responded with an order denying the motion for new trial.

In Case No. A97A0368, Ogletree appealed the rulings previously appealed in Ogletree III, and in Case No. A97A0369, Navistar appealed the denial of a new trial. We consider Ogletree’s appeal first.

Case No. A97A0368

The j.n.o.v. motion set forth three separate and independent grounds: (1) the law of the case rule no longer applied; (2) there was no evidence that Navistar was negligent in its design and manufacture of the cab and chassis; and (3) any possible defect in the design was not a proximate cause of the damages sustained. Because we affirm on the first ground, we do not reach the second and third grounds.

The law of the case rule is set forth in OCGA § 9-11-60 (h), which provides that “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.” As we stated in Ogletree II, this “rule does not apply, however, when the evidentiary posture of the case changes after the initial ruling of the appellate court. [Cits.]” Ogletree II, supra at 700 (2). Because in Ogletree II Navistar had simply renewed its motion for summary judgment based upon the identical record as had been before the Court in Ogletree I, the law of the case rule applied.

In McLean v. Continental Wingate Co., 222 Ga. App. 805, 807 (1) (476 SE2d 83) (1996), we described two situations where the evidentiary posture of a case changes so as to bar application of the law of the case rule. “First, the evidentiary posture changes when a new issue not previously addressed by an appellate court is raised by amended pleadings or otherwise.” Id. See May v. Macioce, 200 Ga. App. 542, 544 (2) (409 SE2d 45) (1991); Modern Roofing &c. v. Owen, 174 Ga. App. 875, 876 (1) (332 SE2d 14) (1985). “[S]econd, the posture changes when the original evidence submitted is found to be insufficient, and the deficient evidence is later supplemented.” McLean, supra at 807. See Mom Corp. v. Chattahoochee Bank, 203 Ga. App. 847 (1) (418 SE2d 74) (1992); Yaeger v. Stith Equip. Co., 185 Ga. App. 315, 316 (364 SE2d 48) (1987) (additional affidavits submitted in second motion for summary judgment showed indisputably defendant was not a manufacturer of the defective product; rule inapplicable). Neither is the case here.

But there is yet a third situation when the evidentiary posture changes. If additional evidence is submitted that “in any material or substantial particular change[s] or varfies] the case upon its actual merits as it appeared when here before,” then the law of the case rule does not apply. Monroe Motor Express v. Jackson, 76 Ga. App. 280, 281 (45 SE2d 445) (1947). The additional evidence must pertain to the issue considered on the first appeal. Atlanta Journal &c. v. Long, 259 Ga. 23, 24 (2) (376 SE2d 865) (1989).

Thus, in Stiltjes v. Ridco Exterminating Co., 192 Ga. App. 778 (386 SE2d 696) (1989), an action claiming the defendant’s chemicals caused a wrongful death, the law of the case rule was inapplicable because the holding in the first appeal (Stiltjes v. Ridco Exterminating Co., 178 Ga. App. 438 (343 SE2d 715) (1986)) was based on evidence in the summary judgment record that the chemicals at issue (pyrethrins) were dangerous to persons suffering from asthma. “At trial, however, it was generally conceded that pyrethrins were safe, appellant’s own expert opined that The whole argument of pyrethrins can be thrown out,’ and autopsy findings indicated no pyrethrins in the blood of appellant’s decedent. Instead, appellant’s theory was that the odor of the pesticides, an irritant to which asthmatics are unusually sensitive, triggered the attack. Thus, the evidentiary posture of the case had changed by the time of trial, rendering the law of the case rule as expressed in the previous appeal inapplicable. [Cit.]” Stiltjes, 192 Ga. App. at 779 (2) (a). See Lee v. Dept. of Transp., 198 Ga. App. 716 (402 SE2d 551) (1991) (additional damages evidence at second trial of case changed evidentiary posture; rule inapplicable); Harrison v. Dorsey, 184 Ga. App. 870, 872 (363 SE2d 151) (1987) (evidence at second trial was “materially different” from evidence at first; rule inapplicable). Cf. Peters, supra at 400 (1) (a) (evidence at trial did not change “in a material way” from summary judgment evidence; rule applicable).

The trial evidence was materially different from the summary judgment evidence upon which this Court relied in reaching the result in Ogletree I. In determining that there was an issue of fact whether Navistar owed a duty to install the alarm, we considered “the lengthy affidavit of a licensed professional engineer who in essence stated that the trade custom of not installing back-up alarms on such cabs and chassis was in violation of the standard of care in the industry as given by the Society of Automotive Engineers, Inc., and not in compliance with certain regulations of the Occupational Safety & Health Administration.” Ogletree I, supra at 43-44. This Court considered this testimony “relevant to whether or not an ordinarily prudent manufacturer would install the alarm. [Cits.]” Id. at 46-47. Finding that the experts’ testimony was “in dispute regarding . . . the trade custom and industry practice, which relates to the standard of due care to be exercised by an ordinarily prudent person,” we concluded there was evidence of negligence which precluded summary judgment. Id. at 48.

At trial this expert did not testify, and Ogletree presented new experts who freely admitted the inaccuracy of that previous testimony. Those experts conceded that the Society of Automotive Engineers standard cited at the summary judgment stage does not apply to the vehicle at issue, that the OSHA standard in question does not require back-up alarms on such vehicles, and that no government regulation nor industry standard requires or even recommends the installation of a back-up alarm on the vehicle in question. This is a material change in the evidence considered in Ogletree I. As in Stiltjes, the testimony at the trial regarding negligence changed the evidentiary posture of the case, and the law of the case rule no longer applied.

The evidentiary posture also changed with regard to the open and obvious issue. At the summary judgment stage, the affidavit evidence did not address the obviousness of the hazard that confronted the decedent or the decedent’s personal knowledge of it. The only potentially relevant evidence was Campbell’s deposition testimony that on the day of the accident the decedent had not been behind the vehicle as it backed off the weighing scales immediately prior to continuing on to the KLllebrew. Thus, there was no evidence that the decedent knew just prior to the accident of the obviousness of the hazard.

At trial, two eyewitnesses testified that the decedent stood behind the vehicle and directed Campbell as he backed the vehicle off the scales. Other testimony indicated that the decedent was familiar with Campbell’s fertilizer spreader and with fertilizer spreader vehicles in general (the evidence was uncontradicted such vehicles had never had back-up alarms) and would have driven them or helped back them up toward a Killebrew. Plaintiff’s new expert at trial also testified that the absence of the back-up alarm would be obvious to anyone who had been around the truck. Thus, on this second issue addressed in Ogletree I, the trial evidence differed materially from the summary judgment evidence, changing the evidentiary posture of the case and rendering the law of the case rule inapplicable.

When that rule does not apply, this Court should apply “the law existing at the time of its decision, even if the law has changed since a prior adjudication.” McLean, supra at 808 (Beasley, C. J., concurring specially). See Powell v. Dougherty Christian Academy, 215 Ga. App. 551, 552 (451 SE2d 465) (1994). Accordingly, Weatherby, supra, applies. It held that a manufacturer cannot be found negligent under the precise circumstances of this case. Judgment n.o.v. was proper.

Decided June 19, 1997

Winburn, Lewis & Barrow, Gene Mac Winburn, John J. Barrow, for appellant.

Nelson, Mullins, Riley & Scarborough, Richard B. North, Jr., Jeffrey S. Burton, Tara R. Simkins, for appellee.

Case No. A97A0369

The conclusion that j.n.o.v. was proper moots the rulings on the motions for new trial and the appeal of Navistar.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

       The Supreme Court decision affirming Mann was later disapproved on other grounds, which does not affect the principle applied here. Banks v. ICI Americas, 264 Ga. 732 (450 SE2d 671) (1994).

       Procedurally, at this point the trial court was authorized, but not required, to vacate its previous order granting j.n.o.v. as incomplete and to enter a new order addressing both the j.n.o.v. and new trial motions. See Nat. Bank of Ga. v. Refrigerated Transport Co., 147 Ga. App. 240, 241 (I) (248 SE2d 496) (1978).

       There is some logic also in arguing that the evidentiary posture of a case appealed at the summary judgment stage necessarily changes when that case is appealed following a full-blown trial. However, this Court has implicitly held that this alone is not the kind of change which would preclude the application of the law of the case rule. See Peters v. Hyatt Legal Svcs., 220 Ga. App. 398 (469 SE2d 481) (1996). But see Ga. Bldg. Svcs. v. Perry, 193 Ga. App. 288, 299 (6) (387 SE2d 898) (1989) (“the evidentiary posture of the case will undoubtedly change upon retrial”).


author: Ruffin, Judge.

text:
    A97A0613.
    BELL et al. v. SMITH et al.
    (488 SE2d 91)
   Ruffin, Judge.

This wrongful death case arises from a shooting incident in rural Lee County on Christmas Eve 1993. David Smith, the plaintiffs’ son, was riding in a truck when defendant Cliff Bell shot him in the back with a high-powered rifle. David Smith died, and the Smiths sued Cliff Bell, his brother Jack Bell III, and Mary Denise Bell, their mother. Cliff Bell admitted he fired the shot but claimed he acted in defense of his brother, Jack, after the truck in which Smith was a passenger swerved toward Jack. The trial court granted partial summary judgment to the plaintiffs on the issue of liability after it determined, as a matter of law, that the evidence presented could not support defendant Cliff Bell’s claim that his actions were justified. For the following reasons, we affirm the trial court’s judgment.

In determining whether the trial court properly granted summary judgment, we review the record evidence de novo to determine whether that evidence, with all inferences construed in Cliff Bell’s favor, showed as a matter of law that Bell’s actions in firing the fatal shot were unjustified. See Gentile v. Bower, 222 Ga. App. 736, 737 (477 SE2d 130) (1996).

The transcript of Cliff and Jack Bell’s criminal trial on charges relating to this shooting was made a part of the record in this case. The evidence presented in depositions and at the criminal trial showed that around 11:00 p.m. on Christmas Eve, members of the Bell family were frightened from bed by a loud rifle shot fired near their home. Jack Bell went to the front door, and his 15-year-old brother Cliff followed him. When another loud shot sounded, Jack Bell retrieved a shotgun from his truck and began walking toward the public dirt road that fronted their home. Cliff Bell got a .270 deer rifle from Jack’s truck and followed his brother toward the road.

As Jack neared the road, a truck some distance away appeared to turn on its headlights and began to accelerate toward the Bell home. According to Cliff Bell, as the truck neared their home, it turned off its lights, “swerved” toward Jack, and continued past the home. Jack, apparently frightened, fired two shotgun blasts in the air. After the truck passed Jack, Cliff, who was behind his brother and a little farther from the truck, fired the rifle in its direction without aiming. He chambered another round and, as the truck continued in a northerly direction past the house, fired again. The trial court found, and it is undisputed, that this second round entered the passenger compartment of the truck, striking David Smith in the torso and causing his death.

The Smiths moved for summary judgment against Cliff Bell on the issue of liability, contending that Cliff’s actions proximately caused David Smith’s death and that Cliff was negligent per se because he violated OCGA § 16-11-103. That Code section makes a person guilty of a misdemeanor “when, without legal justification, he discharges a gun or pistol on or within 50 yards of a public highway or street.” The trial court rejected Cliff Bell’s argument that his actions were “legally justified” as an attempt to defend his brother. Because he admitted that his actions otherwise caused Smith’s death, that ruling constitutes the only ground of Cliff Bell’s appeal.

The circumstances under which a person is justified in using force to defend another are outlined in OCGA § 16-3-21 (a), which states: “A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to defend himself or a third person against such other’s imminent use of unlawful force; however, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person or to prevent the commission of a forcible felony.” See also McNeil v. Parker, 169 Ga. App. 756, 757 (315 SE2d 270) (1984); Restatement of the Law, Torts 2d, § 76. Because justification is an affirmative defense, in this civil case Cliff Bell bore the burden of proving his actions met the requirements of this statute. See Williams v. McCranie, 27 Ga. App. 693, 698-699 (109 SE 699) (1921); OCGA § 24-4-1; compare Brown v. State, 267 Ga. 350, 351 (2) (478 SE2d 129) (1996) (in criminal case, although justification is an affirmative defense, the State must disprove that defense). To obtain summary judgment on this claim, therefore, the Smiths, who will not bear the burden of proof at trial on this affirmative defense, are not required to affirmatively disprove the claim of justification. “[Ijnstead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Although Cliff Bell argues that he reasonably believed his brother to be in danger from the swerving truck when he fired, his own testimony belies this contention. In his deposition testimony, Cliff acknowledged that the Smith truck had passed his brother when he fired the first shot and had traveled an additional 25 feet down the public road when he fired the fatal shot. In his deposition and criminal trial testimony, Cliff acknowledged that when he fired the second shot, the truck was “out of harm’s way” and there was no danger that his brother would be run down. Although he feared the occupants of the truck had fired on his home, Cliff admitted he did not know whether those people had fired the shots, nor did he know why the truck’s occupants were shooting. He could not see anyone in the truck, and no one in the truck made any verbal threats or displayed any weapons. Although he did not specifically aim at the truck, Cliff stated he was firing in the general direction of the truck in an effort to shoot out its tires or otherwise stop it.

Under these circumstances, the trial court properly found that Cliff Bell’s use of force was unreasonable. The question is not whether Cliff actually feared the occupants of the truck, but rather whether an objective reasonable person would have believed Jack to be in imminent danger. See OCGA § 16-3-21 (a); Daniels v. State, 248 Ga. 591, 592-593 (1) (285 SE2d 516) (1981); see also Cox v. State, 216 Ga. App. 86, 88 (2) (453 SE2d 471) (1995) (physical precedent only). Cliff’s own testimony, construed against him to the extent it is contradictory without explanation, shows Jack was in no danger of being “rim down” when Cliff fired the fatal shot. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986). As noted, Cliff did not know if the occupants of the truck had shot at his home, nor did he know why shots were fired. His unsubstantiated suspicion that the truck’s occupants had recently fired weapons near his house was, as a matter of law, unreasonable. Cliff had no reason to believe the truck’s unknown driver or passengers meant him or his family any harm. Under the circumstances, Cliff’s fears that led him to fire at the truck were objectively unreasonable. See Pruitt v. State, 211 Ga. App. 654, 655 (2) (440 SE2d 248) (1994) (where defendant admitted he was not in imminent fear of assault, claim of self-defense was without merit); Cox, supra. The trial court, therefore, did not err in granting the Smiths partial summary judgment.

Decided June 19, 1997

Bowles & Bowles, Jesse G. Bowles III, for appellants.

William M. Calhoun, Jr., for appellees.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


text:
    A97A0863.
    BALES v. THE STATE.
    (488 SE2d 95)
   Ruffin, Judge.

Following a bench trial in the State Court of Rockdale County, the court convicted Stephen Bales of driving under the influence of alcohol and speeding. Bales appeals from the denial of his request for a jury trial, and we reverse.

The record shows that on August 8, 1996, Bales, who was represented by counsel, waived arraignment and entered a plea of not guilty but did not request a jury trial. On August 20, 1996, Bales’ counsel filed numerous motions, but again did not request a jury trial. When the case was called for trial, the State announced ready to proceed with a bench trial. Although Bales requested a jury trial and the assistant district attorney stated that “the State does not oppose [Bales’] request[,]” the trial court denied it on the ground that “the request for a jury trial [had] to be made under the statute at the time of the arraignment.”

The enabling statute creating the State Court of Rockdale County provides that “[i]n all criminal cases, the judge of said court shall be the judge of both questions of fact and of law unless the person subject to be tried shall, before pleading to the charge against him, or the state shall demand a jury trial.” Ga. L. 1987, pp. 5452-5453, § 3 (b). Assuming without deciding, however, that Bales’ failure to request a jury trial before arraignment constituted a waiver of his right to a jury trial, we conclude that the trial court erred in refusing to allow Bales to revoke the waiver.

We have held that “while a defendant may waive trial by jury ‘at any time on or before trial, he may revoke the waiver, provided he acts timely and in such season “as not substantially to délay or impede the cause of justice” ([tit.]), and especially where the State makes no point as to delay or prejudice. [Cits.]’ [Cit.]” Fleming v. State, 139 Ga. App. 849, 850 (2) (229 SE2d 800) (1976). Furthermore, “the right to revoke the waiver is subject only to proof of special circumstances showing that its exercise would substantially delay or impede the cause of justice, and [if] no such proof appears, [the] conviction must be reversed. [Cits.]” Carleton v. State, 176 Ga. App. 399 (336 SE2d 333) (1985).

Decided June 19, 1997.

Bruce F. Morriss, Daniel Shim, for appellant.

Michael M. Hawkins, Solicitor, James M. Miskell, Assistant Solicitor, Mirza A. Baig, for appellee.

In this case, the State did not object to Bales’ request for a jury-trial, and there was no proof that providing Bales with a jury trial would have substantially delayed or impeded the trial. The trial court simply did not address the issue of delay. Rather, the court erroneously based its decision to deny the request on the enabling statute’s provision that the right is waived if not requested at the time of entering a plea. Moreover, as the State concedes in its brief, the record is silent with respect to the immediate availability of a jury to try the case. See Fleming, supra. Although the record shows that Bales was represented by counsel at the time of arraignment, the trial court erred in refusing his request without any proof of special circumstances. See Leggett v. State, 184 Ga. App. 398 (1) (361 SE2d 546) (1987); Fleming, supra; Brumbalow v. State, 128 Ga. App. 581 (197 SE2d 380) (1973). Compare Hansen v. State, 222 Ga. App. 537, 539 (3) (474 SE2d 735) (1996) (defendant attempted to revoke waiver after rule of sequestration invoked). Finally, although the State asserts that Bales did not attempt to revoke the waiver until after adverse rulings on certain unspecified motions, the transcript indicates that those pretrial rulings were made prior to the day the case was called for trial. Cf. Chance v. State, 193 Ga. App. 242 (2) (387 SE2d 437) (1989) (defendant attempted to revoke waiver following denial of his motion in limine which ruling was made after case called for trial and rule of sequestration invoked).

Therefore, under the circumstances of this case, the conviction must be reversed and the case remanded for trial by jury. Leggett, supra.

Judgment reversed and remanded.

Birdsong, P. J, and Eldridge, J., concur.


author: Smith, Judge.

text:
    A97A0880.
    SOSEBEE v. THE STATE.
    (488 SE2d 102)
   Smith, Judge.

Timothy Allen Sosebee was indicted on one count of possession of over one ounce of marijuana and one count of possession of marijuana with intent to distribute. OCGA § 16-13-30 (j) (1). He was convicted by a jury on both counts, his motion for new trial was denied, and he appeals..

Sosebee, in his sole enumeration of error, contends the trial court erred in denying his motion to suppress. He asserts that a search of his residence pursuant to a warrant was improper because the request for the warrant was based in part upon illegally obtained evidence; without that evidence, he contends, the request did not establish probable cause. We disagree and affirm.

In reviewing a motion to suppress, “[t]he evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) Morgan v. State, 195 Ga. App. 732, 735 (394 SE2d 639) (1990). And our task is “simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” (Citation and punctuation omitted.) Midura v. State, 183 Ga. App. 523, 525 (4) (359 SE2d 416) (1987) (full concurrence on this issue).

Construed to support the trial court’s ruling, the evidence shows that, while driving in Walker County, Sosebee and a female companion, Hendricks, were arrested. Sosebee was charged with disorderly conduct, and Hendricks was charged with having an open container of alcoholic beverage, driving without a license, and possessing marijuana. A routine check revealed that the vehicle occupied by Sosebee and Hendricks was registered to Gary Holt, a fugitive who was wanted for a series of home invasion robberies in Tennessee and was believed to be armed and dangerous. Tennessee law enforcement authorities were notified, and two Chattanooga police officers came to Walker County the next day to search for Holt. Sosebee refused to talk to the officers, but Hendricks was more communicative and told the officers she had seen someone matching Holt’s description in Sosebee’s trailer.

Based on this information, the Tennessee officers, Walker County deputies, and FBI agents went to Sosebee’s trailer and sought permission from his mother, who lived next door, to search for Holt. Sosebee’s mother stated that the trailer was hers, signed a consent to search form, and gave the officers a key to the trailer. The officers searched Sosebee’s trailer for the fugitive but did not find him. They did not conduct any other search, but looked only into “any place that a human could get into.” They did not see any drugs.

A tracking dog and handlers for the Georgia Department of Corrections were summoned to the scene in an attempt to track Holt. While the dog handlers were standing by their truck in the driveway “waiting for further instructions,” Sosebee’s dog approached the truck barking and attempting to climb into the truck. One of the handlers placed the dog in a nearby pen to secure it and to protect the tracking dog. After Sosebee’s dog was placed inside, it dragged a plastic bag out of the doghouse in the pen. The dog handler, concerned that the bag might contain “something that the dog was about to choke on,” retrieved the bag from the pen and found that it contained drug paraphernalia.

Meanwhile, an officer with the Lafayette Police Department was conducting a telephone interview with Hendricks, who told him that she had purchased marijuana and pills from Sosebee at his trailer the previous night and that she saw a box containing four pounds of marijuana. While this officer was on the telephone with Hendricks, the dog handler brought him the bag found outside the doghouse. The officer prepared an affidavit and application for a search warrant and went before a local magistrate. The affidavit recited the facts surrounding the search for the fugitive, Hendricks’s disclosures, and the discovery of the bag outside the doghouse, with the additional information that Sosebee had several prior felony drug arrests and that the agent had personal knowledge that Sosebee was a known drug dealer. After issuance of the warrant, the officers returned to the trailer with a narcotics dog and found a large quantity of marijuana concealed under a dresser.

In challenging the sufficiency of the affidavit, Sosebee contends that his mother had no authority to consent to the search of the trailer, that the discovery of the bag outside the doghouse was the fruit of that search and thus illegally obtained, and that the affidavit was insufficient without this information. He contends the evidence obtained from the dog pen came from the protected curtilage of his residence. It appears, however, that the dog handler was not participating in the search of the residence but was there to track a fugitive last seen at that location and under those circumstances was authorized to be within the curtilage of Sosebee’s home. See Gilreath v. State, 247 Ga. 814, 819-820 (1) (279 SE2d 650) (1981). Moreover, the dog handlers never entered the house but were standing in the driveway “as would any guest, deliveryman, postal employee, or other-caller.” (Citation and punctuation omitted.) Galloway v. State, 178 Ga. App. 31, 34 (342 SE2d 473) (1986). We need not reach the issue of the validity of the first, warrantless search, however, because the affidavit was sufficient based solely on the information provided by Hendricks.

When a named informant makes a declaration against her penal interest and based on personal observation, that in itself provides a substantial basis for the magistrate to credit her statement. Midura, supra at 525. “When one makes an admission against his own penal interest, he tends to be telling the truth. Moreover, should he lie to the police, the person admitting a crime risks disfavor with the prosecution. One who knows the police are already in a position to charge him with a serious crime will not likely undertake to divert the police down blind alleys. We thus are satisfied that an admission against penal interest may form the basis for a magistrate’s conclusion that an informant is reliable.” (Citations and punctuation omitted.) Victrum v. State, 203 Ga. App. 377, 379 (2) (416 SE2d 740) (1992). The dog handler’s discovery of the bag was not necessary to establish probable cause; the information provided to the magistrate was sufficient without it on the basis of Hendricks’s disclosures. The warrant was valid, and the trial court did not err in denying the motion to suppress even assuming the earlier investigation at Sosebee’s trailer was improper Perkins v. State, 220 Ga. App. 524, 526 (469 SE2d 796) (1996).

Decided June 19, 1997.

Steven M. Ellis, for appellant.

Ralph L., Van Pelt, Jr., District Attorney, Michael J. Moeller, Bruce E. Roberts, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: Blackburn, Judge.

text:
    A96A0596.
    SOUTHERN FIRE & CASUALTY COMPANY v. FREEMAN.
    (487 SE2d 713)
   Blackburn, Judge.

In Southern Fire &c. Co. v. Freeman, 222 Ga. App. 308 (474 SE2d 195) (1996), we affirmed the trial court’s order granting Sarah Freeman’s motion for summary judgment on the issue of Southern Fire’s compliance with former OCGA § 33-34-5 (b) in the application for automobile insurance at issue. In Sarah Freeman’s cross-appeal we affirmed the trial court’s order granting Southern Fire’s motion for summary judgment on the issue of bad faith damages. The Supreme Court granted certiorari and reversed our decision regarding Southern Fire’s compliance with former OCGA § 33-34-5 (b) in Southern Fire &c. Co. v. Freeman, 268 Ga. 60 (485 SE2d 738) (1997). Accordingly, our judgment on this issue is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment reversed.

Andrews, C. J., McMurray, P. J., Birdsong, P. J., Pope, P. J., Beasley, Johnson, Smith and Ruffin, JJ, concur.

Decided June 20, 1997.

McLain & Merritt, William S. Sutton, for appellant.

B. Samuel Engram, Jr., for appellee.


text:
    A97A0239.
    WILCOXSON v. THE STATE.
    (488 SE2d 104)
    Decided June 20, 1997.
    Gregory D. Wilcoxson, pro se.

   Blackburn, Judge.

Gregory D. Wilcoxson, pro se, appeals his conviction of battery following a bench trial. Wilcoxson contends that the evidence was insufficient to support his conviction.

1. “There is no verdict in a bench trial; the issue is whether the evidence met the test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Blair v. State, 216 Ga. App. 545, 546 (1) (455 SE2d 97) (1995). See also Adkins v. State, 221 Ga. App. 460, 462 (471 SE2d 896) (1996).

In the present case, the evidence is sufficient to persuade a reasonable trier of fact of Wilcoxson’s guilt beyond a reasonable doubt of the criminal offense of battery. The victim testified that Wilcoxson struck him in the head. Although Wilcoxson testified that he did not strike the victim, as the reviewing court, we cannot assess witness credibility or weigh the evidence.”

“The trier of fact weighed the evidence and assessed the witness’s credibility. Upon the finding of guilt, the presumption of innocence no longer applies, and on appeal, we construe the evidence in favor of the findings of the trier of fact; we do not weigh the evidence or determine witness credibility but merely determine the sufficiency of the evidence.” Adkins, supra at 460.

2. Wilcoxson also asserts that the trial court erred in allowing evidence of his prior convictions during the sentencing phase. This enumeration is without merit. See Whisenhunt v. State, 172 Ga. App. 742, 744 (6) (324 SE2d 570) (1984) (notice not required to defendant of State’s intention to use prior convictions in sentencing phase where defendant convicted of misdemeanor).

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

Carmen Smith, Solicitor, Cynthia G. Strong-McCarthy, Assistant Solicitor, for appellee.


author: Judge Harold R. Banke.

text:
    A97A1038.
    ROBERT v. THE STATE.
    (488 SE2d 105)
   Judge Harold R. Banke.

Calvin Eugene Robert was convicted of one count of possession of cocaine with intent to distribute. On appeal, he enumerates one error, raising a Batson challenge to the State’s use of a peremptory strike against Juror 103. Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

The jury pool included six African-Americans. Of those, three were seated on the jury. The State used its peremptory challenges to strike the remaining three.

Finding that Robert established a prima facie case of racial discrimination under Batson, the trial court required the State to offer race-neutral reasons for its actions. The State explained that it struck Juror 103 because she was still in her teens and had graduated from high school only two weeks before. The court surveyed the jury and discovered a 19-year-old had been selected. After questioning her, the trial court learned that she had graduated from high school two years earlier. Thé court then accepted the State’s reasons for striking Juror 103 as race-neutral. Held:

The Equal Protection Clause prohibits racial discrimination in jury selection. Turner v. State, 267 Ga. 149, 150 (2) (476 SE2d 252) (1996). Once the party challenging the strike establishes a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, the opposing party must offer a race-neutral, clear, reasonably specific explanation for the strike. Id. at 151. The trial court’s decision on whether the State rebutted the prima facie case is entitled to great deference and will not be reversed unless clearly erroneous. Id.; Kelly v. State, 209 Ga. App. 789, 792 (1) (b) (434 SE2d 743) (1993).

Here, the State expressed concern that Juror 103’s youth and lack of experience made her less desirable as a juror. Age, under some circumstances, can be a race-neutral reason for striking a juror. Bess v. State, 187 Ga. App. 185, 187 (1) (369 SE2d 784) (1988). Work experience and education may also be legitimate non-discriminatory reasons for striking a potential juror. See Parker v. State, 219 Ga. App. 361, 362 (1) (464 SE2d 910) (1995) (physical precedent only); see Kelly v. State, 209 Ga. App. at 791 (1) (b). Accordingly, we cannot say the trial court clearly erred by accepting the State’s rationale for its strike. See Richard v. State, 223 Ga. App. 98, 99 (476 SE2d 849) (1996).

Decided June 20, 1997.

T. Michael Martin, for appellant.

Robert E. Keller, District Attorney, Rita B. Jackson, Assistant District Attorney, for appellee.

The fact that a 19-year-old was empaneled does not alter this result. The record shows she had been out of school for two years, rather than Juror 103’s two weeks. Compare Gamble v. State, 257 Ga. 325, 329-330 (6) (357 SE2d 792) (1987).

Judgment affirmed.

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


text:
    A97A1092.
    PREMO v. GEORGIA PORTS AUTHORITY.
    (488 SE2d 106)
   Judge Harold R. Banke.

Walter D. Premo appeals the summary judgment granted to the Georgia Ports Authority (“GPA”) on all his claims.

During a surveillance operation, a GPA police officer apprehended Premo, a GPA truck driver, inside a shipping container, an unauthorized area. Officials accused Premo of opening a carton containing television sets. Premo was taken into custody and subsequently charged with burglary and criminal trespass. A jury convicted Premo of criminal trespass but acquitted him of the burglary charge.

GPA terminated Premo for violating its “Code of Good Conduct” which prohibited incidents of misconduct of “a highly serious nature.” Premo claims that according to this Code, being in an unauthorized area was an offense requiring one written warning and a second violation within a six-month period before the GPA could discharge him. Premo appealed his termination through GPA’s internal grievance procedures. He met three times with GPA personnel who reviewed his version of events that he had an emergency need to answer nature’s call and entered what he thought was an empty container to relieve himself. GPA deemed Premo’s termination final after he purportedly failed to comply with grievance procedures mandating that he schedule a fourth appointment for review of his termination.

Premo subsequently obtained employment with a local trucking concern but was allegedly discharged from that job because the GPA denied him access to its port facility. Premo then filed the underlying action, contending that GPA violated his rights to due process and equal protection under the Georgia Constitution, and that GPA wrongfully interfered with his contractual relations and business opportunities with third parties when it terminated his employment and barred him from its premises. Premo sought general damages, special damages, and injunctive relief. After GPA moved for summary judgment, Premo timely filed a request for oral argument. Without conducting a hearing, the trial court ruled in favor of the GPA. Premo appeals. Held:

1. Premo contends that the trial court erred in granting summary judgment to the GPA without affording him an opportunity to be heard pursuant to his request for oral argument under Uniform Superior Court Rule 6.3. Pit Stop v. Jackson, 216 Ga. App. 648 (1) (455 SE2d 358) (1995). We agree and reverse. Further, we decline the GPA’s invitation to apply harmless error analysis. See Dixon v. McClain, 204 Ga. App. 531 (1), 532 (420 SE2d 66) (1992) (failure to hold hearing not subject to harmless error rationale because permitting exceptions would discourage adherence to mandatory rule). In the interest of judicial economy, we address the following legal issues because they may recur on the trial of this case. See Townsend v. Wright, 220 Ga. App. 324, 327 (2) (469 SE2d 281) (1996).

2. The trial court erred in holding that Premo’s claims in their entirety constituted torts within the meaning of the Georgia Tort Claims Act. OCGA § 50-21-20 et seq.

(a) Pretermitting consideration of their merit, all of Premo’s claims falling within the purview of the Tort Claims Act were procedurally barred due to Premo’s undisputed failure to comply with that Act’s mandatory notice provisions. OCGA § 50-21-26. Thus, the GPA was entitled to summary judgment on Premo’s claim for damages for tortious interference with his contractual relations and business opportunities with third parties. See Miller v. Ga. Ports Auth., 266 Ga. 586 (470 SE2d 426) (1996) (failure to comply with notice provisions of Georgia Tort Claims Act fatal to action against GPA, a State entity within the meaning of that Act).

(b) Premo also sought an injunction prohibiting the GPA from barring him from its premises and an order reinstating him to his former position. Inasmuch as these claims do not seek money damages, the Tort Claims Act is inapplicable. OCGA § 50-21-22 (1). See IBM Corp. v. Evans, 265 Ga. 215, 216 (453 SE2d 706) (1995) (sovereign immunity inapplicable when State acts illegally and injunctive relief sought); compare State Bd. of Ed. v. Drury, 263 Ga. 429, 430 (1) (437 SE2d 290) (1993) (damages not recoverable against State absent a waiver of sovereign immunity).

3. Notwithstanding his claim to the contrary, Premo had no property right or due process interest in his continued employment. It is undisputed that GPA is not covered by the State Merit System. OCGA § 45-20-2 (7) (expressly excludes authorities). Premo’s attempt to use the GPA handbook, which delineates dischargeable offenses and termination procedures, as a shield against his termination is unavailing. As we previously held, the GPA employee manual does not transform an at-will employee’s status to a permanent lifetime employee. Ga. Ports Auth. v. Rogers, 173 Ga. App. 538, 539 (1) (327 SE2d 511) (1985) (in the absence of a definite period of employment, employee’s status remains at will). Because “[a]n indefinite hiring may be terminated at will by either party,” GPA had the right to terminate Premo’s employment. OCGA § 34-7-1. Accord Rogers v. Ga. Ports Auth., 183 Ga. App. 325, 328 (358 SE2d 855) (1987).

We reject Premo’s urging to apply Deason v. DeKalb County, 222 Ga. 63 (148 SE2d 414) (1966) to these facts. That action was brought by a permanent county merit system employee for breach of a valid contract; whereas Premo was an hourly employee outside the protection of any merit system and without a written contract. Id. at 65. Thus, Premo’s contractual claim for back pay necessarily must fail.

4. The GPA was entitled to summary judgment as a matter of law on the alleged violation of Premo’s liberty interest. In his amended complaint, Premo asserted that the GPA violated his liberty interest by publishing false charges or publicizing false statements. See Rogers v. Ga. Ports Auth., 183 Ga. App. at 328 (2) (proof of deprivation of liberty interest requires showing that GPA collected and publicized defamatory information). However, because the underlying conduct complained of is tortious and it is undisputed that Premo failed to provide the requisite notice to the State under. OCGA § 50-21-26, GPA is entitled to summary judgment as a matter of law on this claim regardless of its merit. See Division 2.

5. The trial court must resolve whether the GPA illegally banned Premo from State property and whether Premo was entitled to' injunctive relief. Premo asserts that the GPA violated his right to equal protection under the Georgia Constitution. Premo contends the GPA’s action was racially motivated in that similarly situated individuals of a different race received more favorable treatment. Premo claims that a person of a different race committed the dischargeable offense of bringing a concealed weapon onto GPA’s premises. Yet this person, after purportedly failing a polygraph test on the issue of his knowledge of the gun’s presence, was reinstated to employment and not excluded from GPA’s property. Further, as evidence that GPA treated a similarly situated person differently, Premo offered testimony that another truck driver who had been discharged for misconduct involving suspected theft was permitted to drive onto GPA’s premises.

The “government cannot cloak itself in the mantle of sovereign immunity when an injured party seeks to enjoin an illegal action.” Evans, 265 Ga. at 216 (1). The type of “illegal action” that justifies piercing sovereign immunity is action “under color of office but without lawful authority and beyond the scope of official power. [Cits.]” Chilivis v. Nat. Distrib. Co., 239 Ga. 651, 654 (1) (238 SE2d 431) (1977). Thus, whether the GPA acted with illegal racial animus and denied Premo equal protection are material disputed questions of fact.

Decided June 20, 1997.

Fletcher Farrington, for appellant.

Thurbert E. Baker, Attorney General, Kilpatrick Stockton, G. P. Sykes, Jr., Daniel F. Piar, Ranitz, Mahoney, Coolidge & Mahoney, Thomas J. Mahoney, Jr., for appellee.

6. Based on the above divisions, Premo’s- remaining enumerations are moot.

Judgment reversed and case remanded with direction.

Ruffin and Eldridge, JJ., concur.

       The Supreme Court of Georgia ordered Premo’s appeal transferred to this Court.


text:
    A97A0726.
    FRANKLIN et al. v. STATE OF GEORGIA.
    (488 SE2d 109)
   Smith, Judge.

The State of Georgia filed a complaint on December 12, 1995 against appellants pursuant to OCGA § 16-13-49 seeking forfeiture of several vehicles and $2,507 in currency allegedly used in conjunction with or received as proceeds from distribution of controlled substances. Appellants answered, raising as one of their defenses the State’s failure to verify the complaint in proper form. At the hearing on February 13, 1996, counsel for defendants made an oral motion to dismiss on the same basis. The trial court orally granted the motion at the hearing. On April 2, 1996, the trial court entered a written order, granting the motion, nunc pro tunc to March 20, 1996. The State filed a motion for reconsideration on February 14 arguing that the complaint was properly verified. On March 25, 1996 the State filed an amended complaint and verification. Six months later, the trial court entered an order reciting that the State’s motion for reconsideration was moot because it filed an amended complaint. The order further recited in part that the court found “the complaint as amended is sufficient and denies defendant’s motion to dismiss based upon improper verification.” Following a hearing in October 1996, the trial court entered an order of forfeiture of one automobile and $2,507 in currency. This appeal ensued.

Appellants contend the trial court erroneously allowed the State to amend its complaint and that dismissal was required because a hearing was not held within 60 days of service of the complaint pursuant to OCGA § 16-13-49 (o) (5). We need not reach these contentions, however, because more fundamental principles control the issue. The State’s amendment of the complaint was ineffective; once the trial court dismissed the complaint, there was no action pending to amend. See generally Hagan v. Robert & Co., 222 Ga. 469, 470 (1) (150 SE2d 663) (1966) (judgment granting nonsuit dismissed cases and put plaintiffs “out of court,” causing petition to be nonamendable until reinstated by trial court as pending suit); Leverette v. Moran, 153 Ga. App. 825, 827-828 (266 SE2d 574) (1980) (once writ of possession granted, amendment of petition not proper, because no suit pending to amend).

Here, the trial court did not reconsider the dismissal of the State’s complaint, nor did it reinstate the case; instead, it ignored its earlier dismissal several months after entering the order. We find no authority allowing reinstatement of a dismissed complaint in this manner. Although a trial court may grant a party a specified period of time in which to amend a complaint following dismissal, see, e.g., Locklear v. Morgan, 127 Ga. App. 326, 332 (4) (193 SE2d 208) (1972), the trial court did not do so in this case. We recognize that a trial court “has the power to revoke, alter, amend or modify an order or judgment during the term in which it is rendered. [Cits.]” The Camera Shop v. GAF Corp., 130 Ga. App. 88, 89 (202 SE2d 241) (1973). But even if we assume that the trial court’s order was an attempt to modify or revoke its earlier dismissal, the order was not entered during the same term as the dismissal, and the trial court therefore had no power “to modify and revise it in any matter of substance or in any matter affecting the merits.” (Punctuation omitted.) Adams Drive, Ltd. v. All-Rite Trades, 136 Ga. App. 703 (1) (222 SE2d 174) (1975).

Because the trial court dismissed the State’s complaint and never properly reinstated it, no pending suit remained to amend. It follows that all actions taken by the trial court after the dismissal were nugatory. Since no action was pending, the trial court was without authority to hear evidence against defendants.

Decided June 23, 1997.

Stephen T. Maples, for appellants.

Cheryl F. Custer, District Attorney, Nancy N. Bills, Assistant District Attorney, for appellee.

Judgment reversed.

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

       We note, with regard to the trial court’s oral dismissal of the State’s complaint, the general rule that an order of dismissal does not operate as such until reduced to writing and signed by the trial judge. Maslia v. Hall, 121 Ga. App. 740, 742-743 (1) (175 SE2d 48) (1970). But by entering the written order nunc pro tunc, the trial court made the written dismissal relate back to March 20, 1996. This was entirely proper. See, e.g., Kendall v. Peach State Machinery, 215 Ga. App. 633, 634 (2), n. 1 (451 SE2d 810) (1994) (nunc pro tunc entry “used to record a previously unrecorded action or judgment rendered, which is to take effect as of the former date”).


author: Pope, Presiding Judge.

text:
    A97A0679.
    GOULD v. LATORRE et al.
    (488 SE2d 116)
   Pope, Presiding Judge.

On July 20, 1994, plaintiff Virginia Gould and defendant Tamxnie Jones were involved in an automobile accident. Defendant Brenda Latorre, who is Jones’ mother, held title to the car Jones was driving at the time of the accident. Nearly one year after the accident, plaintiff filed suit against Latorre and Jones, alleging both personal injury and property damage. Latorre was personally served with a copy of the complaint. Plaintiff attempted personal service on Jones at the address given to police at the scene of the accident. Jones no longer lived at that address, however, and the record shows that she was never personally served with the complaint.

On August 7, 1995, Latorre and Jones filed a joint answer to the complaint denying any liability. In the answer, Jones raised the defenses of insufficient service of process and lack of jurisdiction, and the record shows she has never waived or acknowledged service in this case. Approximately nine months later, after learning that Jones had been living in the Cayman Islands for some time, plaintiff attempted to serve Jones by publication pursuant to OCGA § 9-11-4 (e) (1) (A). Thereafter, on August 19,1996, Jones filed a motion to dismiss plaintiff’s personal injury claim against her on the ground that she had not been properly served with process within the two year statute of limitation for personal injury claims set forth in OCGA § 9-3-33. On the same date, Latorre filed a motion for summary judgment claiming that there was no evidence that she was liable in any way for the automobile accident. The trial court granted both motions, and plaintiff appeals.

1. In her first enumeration, plaintiff contends that Jones was properly served within the applicable statute of limitation by publication; by delivery of the complaint to the attorney representing Jones; and by service of the complaint on Latorre. Thus, plaintiff claims that the trial court erred in ruling that Jones was never properly served and in dismissing plaintiff’s personal injury claim against Jones for that reason. We cannot agree.

(a) While it is true that plaintiff sought to serve Jones by publication within the limitation period, it is undisputed that at the time such service was attempted Jones was not a resident of this state. Service by publication is not an effective method of service on a nonresident in any action for personal judgment for a tort. Melton v. Johnson, 242 Ga. 400, 403 (249 SE2d 82) (1978); Barnes v. Continental Ins. Co., 231 Ga. 246, 247 (201 SE2d 150) (1973); Gordon v. Coles, 207 Ga. App. 889, 890 (429 SE2d 297) (1993). Consequently, the trial court did not err in ruling that plaintiff’s attempt to serve Jones by publication was improper and that such attempted service did not provide the trial court with personal jurisdiction over Jones.

(b) The trial court also did not err in ruling that the mere delivery of the complaint to Jones’ attorney was insufficient and failed to provide it with personal jurisdiction over Jones. As the trial court acknowledged in its order granting Jones’ motion to dismiss, where personal service on an individual is required, service of process on that individual’s attorney usually is not permitted. Browning v. Europa Hair, 244 Ga. 222, 224 (259 SE2d 473) (1979); Souter v. Carnes, 229 Ga. 220, 221 (3) (190 SE2d 69) (1972). This is particularly true in cases like this involving service of the very complaint which seeks to initiate suit against a defendant. And while it is true that OCGA § 9-11-5 allows for service of certain pleadings on an individual’s attorney, such pleadings are defined by the language of that statute as those subsequent to the original complaint.

(c) As to the contention that service of the complaint on Latorre constituted sufficient service on Jones, we note that plaintiff has failed to -cite any record evidence or authority to support such a proposition, and upon consideration, we reject the contention.

2. In her second enumeration, plaintiff contends that the running of the statute of limitation for her personal injury suit against Jones has been and continues to be tolled pursuant to OCGA § 9-3-94 for the duration of Jones’ absence from the country. As a result, plaintiff claims that the trial court erred in finding that the limitation period had run without service being perfected and in granting Jones’ motion to dismiss. We disagree. It is well settled that the tolling provision found in OCGA § 9-3-94 applies only if a defendant’s removal from the state makes it impossible to perfect service of process. Towns v. Brown, 177 Ga. App. 504 (339 SE2d 926) (1986); Curlee v. Mock Enterprises, 173 Ga. App. 594, 598 (2) (327 SE2d 736) (1985). In the instant case, plaintiff could have tried to perfect service on Jones outside Georgia by utilizing the assistance of long arm jurisdiction. See OCGA §§ 9-10-90, 9-10-91 (2) and 9-10-94. She did not do so, however, even though it is undisputed that she knew of Jones’ general location in the Cayman Islands for several months prior to thfe expiration of the statute of limitation. As a result, it cannot be said that it was impossible to perfect service on Jones. Accordingly, the tolling provision found in OCGA § 9-3-94 is not applicable, and the trial court did not err in granting Jones’ motion to dismiss. Id.

3. In her final enumeration, plaintiff argues that the trial court erred in granting summary judgment to Latorre because issues of material fact remain regarding Latorre’s liability to plaintiff based on the family purpose doctrine. We find no merit to this argument.

“The family purpose doctrine states that when an automobile is maintained by the owner for the use and convenience of [the owner’s] family, such owner is liable for the negligence of a member of the family having authority to drive the car while it is being used for a family purpose.” (Citations and punctuation omitted.) Bailey v. Butler, 199 Ga. App. 753, 754 (406 SE2d 97) (1991). “To apply the family purpose doctrine to a given situation, four criteria must be met: (1) the owner of the vehicle must have given permission to a family member to drive the vehicle; (2) the vehicle’s owner must have relinquished control of the vehicle to the family member; (3) the family member must be in the vehicle; and (4) the vehicle must be engaged in a family purpose.” (Citation and punctuation omitted.) Walston v. White, 213 Ga. App. 441, 442 (444 SE2d 855) (1994). “The doctrine[, however,] is not applied to render [a] parent vicariously liable unless the parent had the right to exercise such authority and control that it may be concluded that an agency relationship existed between [the parent] and the family member with respect to the use of the vehicle. In other words, the four conditions prescribe when the test is to be applied, but the actual test is authority and control.” (Citation and punctuation omitted.) Williams v. Gant, 218 Ga. App. 493, 494 (462 SE2d 179) (1995).

In this case, even if we assume that each of the four factors is present, the doctrine is nevertheless inapplicable because Latorre did not have the requisite authority and control over Jones’ use of the car in question. Unrefuted record evidence demonstrates that almost a year before the accident, Latorre had given the car to Jones, who was nearly 28 years old and did not live with Latorre. And it is undisputed that Latorre had in fact purchased another car for her own use. Latorre also testified that from the time the car was given to Jones, Jones had complete authority and control over the car’s use, and such testimony has not been challenged by any evidence to the contrary. Although the car was titled in Latorre’s name and may have been listed on her insurance policy, this is not sufficient to establish the authority and control necessary for application of the family purpose doctrine in light of the above uncontradicted evidence. See Walston, 213 Ga. App. at 443; Bailey, 199 Ga. App. at 754. Consequently, because the uncontradicted evidence shows that Jones’ use of the car was not under Latorre’s authority or control, the trial court was correct in granting summary judgment to Latorre. Id.

Decided June 24, 1997.

King & Spalding, Byron Attridge, Alan H. Nichols, for appellant.

Chambers, Mabry, McClelland & Brooks, James T. Budd, William R. Youngblood, for appellees.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A97A0711.
    SCRUGGS v. THE STATE.
    (488 SE2d 110)
   Smith, Judge.

Jesse L. Scruggs was indicted by a Fulton County grand jury on one count of theft by receiving a stolen vehicle, OCGA § 16-8-7 (a). He was convicted by a jury, and his motion for new trial was denied. Scruggs appeals, asserting that the trial court erred in refusing to strike a juror for cause, in admitting certain evidence, and in its instructions to the jury. We find no error and affirm.

1. Scruggs first complains that a potential juror employed in law enforcement should have been excused for cause. This potential juror identified herself as a corrections officer with the City of Atlanta. Although she had operated a breathalyzer machine and had testified in court, she had no arrest powers.

The general rule in Georgia is that full-time law enforcement officers must be excused for cause upon timely challenge. Hutcheson v. State, 246 Ga. 13, 14 (1) (268 SE2d 643) (1980). This rule is not applicable, however, to corrections officers without arrest powers. Thompson v. State, 212 Ga. App. 175, 176 (1) (442 SE2d 771) (1994). The trial court did not abuse its discretion by refusing to excuse this potential juror for cause.

2. Scruggs also contends that certain testimony was impermissible hearsay improperly admitted over his objection.

(a) First, Scruggs complains that, on direct examination, a detective with the City of Atlanta auto theft squad was permitted to testify that he received a police department bulletin to be on the lookout for an unmarked black or blue flatbed wrecker, fairly new, that “was involved with vehicle thefts here in the city.” Scruggs’s counsel objected, but the trial court admitted the testimony as tending to explain conduct. The detective went on to testify that, because of the bulletin, when he saw the wrecker in question on an Atlanta street, he decided to follow it and put it under surveillance.

On cross-examination, Scruggs’s counsel closely questioned the detective regarding actions that he failed to take in the course of his investigation, including testimony that he did not immediately stop the wrecker or question its occupants but placed it under surveillance and waited until after they left the scene to identify the wrecker. On redirect, the detective elaborated that he waited to identify the wrecker because he was most concerned with the vehicle thefts that had been reported in connection with the wrecker. At this point, after Scruggs objected again, the trial court instructed the jury “to disregard any information with regard to vehicle thefts.”

The initial admission of this evidence was not error. It is well established that all the circumstances surrounding the commission of the crime or crimes charged are admissible as part of the res gestae even though they may have incidentally placed Scruggs’s character in evidence. Sprattling v. State, 218 Ga. App. 576, 577 (1) (462 SE2d 461) (1995) (trial court properly admitted evidence that vehicle identified as getaway car in armed robbery was stolen vehicle found near defendant’s home). And this situation is one of the “rare instances” in which hearsay was properly used to explain the detective’s conduct. Otherwise, a jury might find the detective’s conduct in following the wrecker and placing it under surveillance rather than stopping it immediately “so inexplicable, highhanded, or even illegal, as to cast unwarranted doubt on the prosecution. [Cit.]” Ross v. State, 210 Ga. App. 455, 456 (436 SE2d 496) (1993). This is particularly true where defense counsel opened a line of questioning regarding the detective’s conduct of the investigation “and then stopped the questioning in such a way as to raise an inference which redirect examination showed to be incorrect. Under those circumstances, the trial court’s decision to admit the testimony falls within the narrow range of matters about which an appellant may not complain because his own procedure or conduct procured or aided in causing it. [Cit.]” Griffin v. State, 265 Ga. 552, 554 (3) (458 SE2d 813) (1995). Moreover, Scruggs has not contended that a mistrial should have been granted or that the trial court’s eventual curative instruction was inadequate.

(b) Second, Scruggs complains that the trial court improperly permitted the detective to testify to hearsay regarding the identity of the man driving the wrecker. The detective testified that he was unable to see the face of the driver before he pulled into a side yard used as a parking area and left, the wrecker there, although he described his general appearance and build. But he recognized the driver as the same man who drove out of the parking area in another vehicle 10-15 minutes later by his height and his clothing, which he described in detail. He testified that no one in the area was wearing similar clothing. As the man drove out of the parking area, the detective was able to make eye contact with him and get a “good look” at his face. The detective then walked into the parking area and questioned several bystanders, one of whom identified the driver of the wrecker as “Terry.” It is to this identification that Scruggs objected; he did not object below to the detective’s further testimony that the bystander also identified “Terry” as the driver of the other vehicle.

Similar testimony was held to be harmless even if erroneous in Wright v. State, 187 Ga. App. 311, 312 (2) (370 SE2d 160) (1988). An investigating officer testified over hearsay objection that he was given a name to match the description of an armed robber. This Court observed: “After all, viewed in context, the officer simply testified that someone thought defendant matched the perpetrator’s description, nothing more. [Cit.] The victim gave similar testimony; and the jury could make such a determination for itself. [Cit.]” Id. at 312. Here, the detective simply testified that someone gave the name “Terry” to him as the identity of the driver, and no evidence ever connected the nickname “Terry” with Scruggs. The detective also testified that he was able to identify Scruggs as the driver of both vehicles by his general appearance and clothing independently of the bystander’s identification. He was also able to connect Scruggs with the second vehicle because it was registered to Scruggs’s wife. Another detective who was familiar with Scruggs’s appearance positively identified him as the driver of the wrecker on an earlier occasion. Under the circumstances, if admission of the officer’s testimony was error, it was harmless.

3. Scruggs also enumerates as error the trial court’s refusal to give several requested instructions to the jury. He first contends the trial court should have charged the jury on the language of OCGA § 24-9-68 regarding the state of a witness’s feelings toward the accused. A request to charge, however, must be legal, apt, precisely adjusted to some principle involved in the case, and authorized by the evidence. Wideman v. State, 222 Ga. App. 733 (2) (476 SE2d 49) (1996).

Scruggs’s requested charge was not authorized by the evidence. One detective’s testimony suggested that he was familiar with Scruggs’s appearance, and the other detective testified that he waved at Scruggs when he left the parking lot. But no testimony was ever elicited regarding the detectives’ feelings or bias towards Scruggs or why they were familiar with his appearance. Because no evidence showed the state of the detectives’ feelings toward Scruggs or any relationship with him, the charge was not warranted.

Decided June 24, 1997.

William T. Hankins III, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Assistant District Attorney, for appellee.

Similarly, no evidence was presented to support Scruggs’s requested charges on mistaken belief or misapprehension of fact. The evidence showed that Scruggs was driving the wrecker with the steering column broken to enable it to be driven with a flat-head screwdriver instead of a key. A detective testified that the condition of the steering column was obvious to anyone driving the vehicle. Scruggs points to no testimony or evidence that he had a mistaken belief or misapprehension of fact. While Scruggs correctly asserts that knowledge of the theft of the property in question is an element of theft by receiving, OCGA § 16-8-7 (a), the trial court fully instructed the jury on all the elements of the offense, including knowledge. The trial court did not err in refusing to give Scruggs’s requested instruction.

4. Finally, Scruggs complains of the trial court’s charge on sole and joint possession. In discussing the State’s charge on sole and joint possession, the trial court specifically noted the evidence that two people were seen in the wrecker. This evidence supported a charge of joint possession. Lance v. State, 191 Ga. App. 701, 703 (2) (382 SE2d 726) (1989).

Judgment affirmed.

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

       She did not serve because Scruggs exercised one of his peremptory strikes against her. But this no longer determines whether an accused has been harmed by the failure to excuse a disqualified prospective juror. Hayes v. State, 261 Ga. 439, 441 (2) (405 SE2d 660) (1991).

       Hearsay has no probative value even if admitted without objection. Shaver v. State, 199 Ga. App. 428, 429-430 (405 SE2d 281) (1991).

       We note that Scruggs supported his request for a circumstantial evidence charge, which was refused, by contending it was necessary because one of the detectives observed two people in the wrecker.