author: Pope, Judge. Deen, Presiding Judge, Banke, Presiding Judge,

text:
    A89A1128, A89A1515.
    THE STATE v. SMITH; and vice versa.
    (389 SE2d 547)
   Pope, Judge.

Defendant Smith was convicted of 13 counts of armed robbery, three counts of kidnapping, and one count of aggravated assault. During sentencing, the trial court, over objection by the State, merged the armed robbery convictions into four counts, one for each of the four locations where the robberies had occurred. The defendant was thereupon sentenced to four concurrent life terms, to be followed by four concurrent 20-year terms. Before us now is a direct appeal by the State from the sentencing order, as well as a cross-appeal by the defendant which is directed to the merits of his convictions. Held:

1. We must decide initially if we have jurisdiction to consider the State’s direct appeal. “Notwithstanding the provisions of OCGA § 5-7-1, the State may appeal directly an illegal judgment. Potts v. State, 236 Ga. 230 (223 SE2d 120) (1976); Darden v. Ravan, 232 Ga. 756 (1) (208 SE2d 846) (1974).” State v. Bilal, 192 Ga. App. 185 (384 SE2d 253) (1989).

The trial court improperly merged eight of twelve armed robbery counts into four counts under an “incident location” theory, without giving further explanation or citation to authority. “Robbery is a crime against possession, and is not affected by concepts of ownership. Similarly, one may only rob a person, and not a corporate entity, or an object such as a cash drawer.” Creecy v. State, 235 Ga. 542, 544 (221 SE2d 17) (1975). The record shows that each of the counts merged by the court for sentencing purposes involved separate individuals. Thus, defendant’s action against each individual was a separate crime and could not merge in fact or law. See OCGA § 16-1-7. It follows that defendant has yet to be sentenced for eight of the crimes. The State is thus empowered to appeal directly the failure of the trial court to legally impose sentences for those eight crimes. State v. Stuckey, 145 Ga. App. 434 (243 SE2d 627) (1978). The judgment of the trial court merging the counts must be vacated and the case is remanded to the trial court with direction that the court enter sentence upon the eight remaining counts of armed robbery.

2. In his cross-appeal, defendant contends that the evidence was insufficient to support the convictions and also that certain evidentiary errors were committed during the trial of the case. The first issue which presents itself is whether we have jurisdiction to entertain the cross-appeal. The record discloses that defendant was convicted and sentenced on November 11, 1988, yet the notice of cross-appeal was not filed until April 25, 1989. However, five days before the filing of the notice, the trial court, without objection by the State, had granted a motion by defendant for permission to file an out-of-time appeal.

In State v. Cook, 172 Ga. App. 433, 436 (323 SE2d 634) (1984), this court held that “[t]he viability of what is denominated as a ‘cross-appeal’ in a criminal case must... be based upon the applicable statutory requirements regarding independent appeals and not upon the provisions of OCGA § 5-6-38 (a).” Based on the trial court’s evident finding that there was good cause to allow an out-of-time appeal in this case, and recognizing that “an abortive attempt to appeal a criminal conviction due to a technical error on the part of the appellant’s attorney may result in a denial of the appellant’s constitutional right to effective assistance of counsel for which habeas corpus relief would lie,” Johnson v. State, 183 Ga. App. 168 (1) (358 SE2d 313) (1987), we hold that it is appropriate to address the merits of the defendant’s enumerations of error.

3. Defendant contends the trial court erred in admitting his written confession. Following a Jackson v. Denno hearing, the trial court determined that Smith had made the confession freely and voluntarily after being advised of his Miranda rights. Such factual and credibility determinations by a trial court will not be disturbed on appeal unless they are clearly erroneous. Moss v. State, 175 Ga. App. 754 (2) (334 SE2d 355) (1985). Having reviewed the evidence pursuant to this .standard, we hold that the trial court did not err in admitting the confession.

4. At trial, a victim of one of the robberies was shown a photographic array from which he had previously identified defendant as the perpetrator of the robbery. The witness testified regarding his prior identification of defendant and thereafter identified him in court. Although defendant does not contend that the pre-trial photographic identification procedure was suggestive or otherwise improper, he contends that he was prejudiced by the manner in which the State again displayed the photographic lineup to the witness before obtaining the in-court identification. We find this enumeration of error to be without merit. See generally Smith v. State, 160 Ga. App. 60, 61 (286 SE2d 45) (1981).

5. The evidence introduced at trial, considered in its totality, was sufficient to enable any rational trier of fact to find the defendant guilty of each of the offenses of which he was convicted beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment vacated and case remanded with direction in Case No. A89A1128. Judgment affirmed in Case No. A89A1515.

Carley, C. J., McMurray, P. J., Benham and Beasley, JJ., concur. Deen, P. J., concurs specially. Banke, P. J., Birdsong and Sognier, JJ., concur in part and dissent in part.

Deen, Presiding Judge,

concurring specially.

I concur fully with the majority opinion’s conclusion that the trial court improperly merged eight of twelve valid, separate convictions of armed robbery into four counts, based upon an “incident location” theory. Under OCGA § 16-8-41 (b), a person convicted of armed robbery “shall be punished by death or imprisonment for life or by imprisonment for not less than five nor more than 20 years; provided, however, that, for a second or subsequent such offense, the defendant shall be punished by imprisonment for not less than ten years.” Some sentence, within the specified limits, is mandatory. In the whole court case of State v. Stuckey, 145 Ga. App. 434 (243 SE2d 627) (1978), this court held that because a superior court has no jurisdiction to probate a sentence imposed on a conviction of armed robbery, such a sentence was absolutely void and thus subject to appeal by the State. It would appear that the State’s right to appeal should be even more certain where, as in the instant case, the trial court does not enter any sentence at all on several valid convictions of armed robbery.

I note also that OCGA § 5-7-1 (2) affords an appeal by the State from an “order, decision, or judgment arresting judgment of conviction upon legal grounds.” The trial court’s improper merger of so many convictions of armed robbery certainly had the legal effect of “arresting judgment of conviction upon legal grounds.” The State’s right to appeal could be sustained on that basis. “ ‘If a verdict, when construed with the indictment, does not find the defendant guilty of any offense, the judgment should be arrested; but where . . . the allegations of the indictment charge ... a violation of the law, which can be plainly understood by the jury, and a verdict finding the defendant guilty cannot be ignored without violating the rules of common sense, sentence should be pronounced upon the finding.’ ” King v. State, 103 Ga. App. 272, 274 (119 SE2d 77) (1961).

Decided December 5, 1989.

Robert E. Keller, District Attorney, Tracy G. Gladden, Assistant District Attorney, for appellant.

Lillian Neal, for appellee.

Banke, Presiding Judge,

concurring in part and dissenting in part.

The state is authorized to appeal a criminal sentence only where it is absolutely void due to some legal prohibition. See State v. Stuckey, 145 Ga. App. 434 (243 SE2d 627) (1978). The test is not whether the sentence was technically correct but whether it “ ‘could legally have been imposed.’ ” State v. Wilkerson, 161 Ga. App. 185, 186 (288 SE2d 137) (1982). The sentence imposed on the appellant’s armed robbery convictions clearly was not less than that permitted by law. Consequently, the state’s appeal should be dismissed for lack of jurisdiction. I concur, however, in the affirmance of the appellant’s convictions.

I am authorized to state that Judge Birdsong and Judge Sognier join in this opinion.


source: Caselaw Access Project

author: Carley, Chief Judge. Beasley, Judge,

license: Public Domain

text:
    A89A1152.
    HART v. THE STATE.
    (389 SE2d 400)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of burglary and attempted rape. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

Appellant gave an inculpatory in-custody statement to the police. Pursuant to appellant’s motion, the trial court conducted a Jackson v. Denno hearing to determine the voluntariness of the statement. At the conclusion of the hearing, the trial court ruled that it would “admit the statement and let the jury make the ultimate determination as to whether or not it was freely and voluntarily given. The Court is going to find that [appellant] was advised of his constitutional rights. . . .” The sole enumeration is that, by so. ruling, the trial court erroneously failed to make its own independent determination that appellant’s in-custody statement was voluntary before admitting that statement into evidence.

There is serious doubt whether the trial court’s ruling on the issue of the voluntariness of appellant’s statement is procedurally deficient. The purpose of a Jackson v. Denno hearing is to allow “the trial court in the first instance, as a matter of law, and the jury, ultimately, as a matter of fact, to assure themselves of the voluntariness of a statement. . . .” Farley v. State, 145 Ga. App. 98, 100 (1) (243 SE2d 322) (1978). Here, the trial court specifically found that appellant had been advised of his constitutional rights and expressly held that the statement would be admissible for the jury’s ultimate determination of whether appellant had given it voluntarily. Compare Hicks v. State, 255 Ga. 503 (1) (340 SE2d 604) (1986) (wherein the trial “court neither expressly denied the motion nor explained its ruling”); Parker v. State, 255 Ga. 167, 168 (1) (336 SE2d 242) (1985) (wherein “the trial court, without explanation, simply denied the motion”); Berry v. State, 254 Ga. 101, 104 (1) (326 SE2d 748) (1985) (wherein “the trial court did not expressly find” that the defendant had not invoked his right to counsel); Cofield v. State, 247 Ga. 98, 108 (4) (274 SE2d 530) (1981) (wherein the trial court itself made no clear determination of the disputed issue of voluntariness, merely a determination that the State’s evidence alone had made a prima facie showing of voluntariness). It would certainly seem that here, as in Sanders v. State, 257 Ga. 239, 240 (1a) (357 SE2d 66) (1987), “[e]ven if the appellant is deemed not to have waived any objections to the specificity of the ruling by [his] failure to object thereto at the time of trial, . . . the conclusion of voluntariness appears from the record with unmistakable clarity, especially considering that the whole tenor of the hearing had been toward the issue of voluntariness.”

However, even assuming that the trial court’s ruling on the issue of the voluntariness of appellant’s statement is not procedurally sufficient, an affirmance is nevertheless warranted in this case. A review of the transcript of the Jackson v. Denno hearing shows that there is no evidence which would authorize the trial court to find that appellant’s statement was not voluntarily given, since such opposing evidence as appellant did adduce at that hearing would fail to show that his statement was involuntary. See generally Pounds v. State, 189 Ga. App. 809 (1) (377 SE2d 722) (1989); Frymyer v. State, 179 Ga. App. 391 (1) (346 SE2d 573) (1986). Thus, there is no reason to remand for findings of fact as to the voluntariness of appellant’s statement because no disputed question of fact relevant to that issue was ever raised and any ruling by the trial court other than to admit appellant’s statement would be erroneous. “[A] requirement for a hearing on the issue of voluntariness [of a defendant’s statement] applies only if the evidence presents a fair question as to its voluntariness. No such question is presented in this case: There is no [relevant] evidence whatsoever in the record and no offer of [relevant] proof that appellant’s statements . . . were anything but voluntary.” Graver v. State, 246 Ga. 467, 468 (1) (271 SE2d 862) (1980).

Judgment affirmed.

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

Beasley, Judge,

dissenting.

The State concedes that such action was insufficient. This case should be remanded for appropriate findings by the court on this issue. Parker v. State, 255 Ga. 167, 168 (1) (336 SE2d 242) (1985); Hicks v. State, 255 Ga. 503, 504 (1) (340 SE2d 604) (1986); Berry v. State, 254 Ga. 101, 104 (1) (326 SE2d 748) (1985).

A number of factors requires it. First, the defendant was a nineteen-year-old soldier who was summoned to the Criminal Investigation Division of his unit where he was introduced to the police officer from Hinesville. An advice of rights form was read to him, which he signed. Hart initially was hesitant and reluctant to talk with the civilian officer and asked to speak alone with the CID officer first. That officer told him if he was innocent, as he claimed, he should talk to the police. He did not tell Hart he did not have to do so.

The waiver form correctly stated that “If you decide to answer questions without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.” Despite this, the Hinesville officer was of the opinion that he did not have to stop questioning in the face of a voiced desire to stop until a request for an attorney was made. Even this request by Hart was not enough, and the questioning continued, resulting in the suppression of a portion of the statement here at issue.

Hart said that during the questioning, the officer told him he could get Hart psychiatric help if he needed it, and that it would be possible for Hart to stay with his family. The officer did not deny making these promises, only lack of recollection as to them.

The lack of clarity of the court’s initial ruling, as conceded by the State, along with the partial suppression of the statement for violation of constitutional rights, and the promises of benefit, require a remand. Parker, supra. While the promise of psychiatric help alone is not hope of benefit, see Pounds, supra, it is coupled with the indication that Hart could remain with his family. This requires further consideration and a specific holding of voluntariness by the court.

Decided December 5, 1989.

Gary A. Sinrich, for appellant.

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.

I am authorized to state that Judge Sognier joins in this dissent.


author: Pope, Judge.

text:
    A89A1216.
    JONES v. THE STATE.
    (389 SE2d 402)
   Pope, Judge.

Defendant Jones was convicted of armed robbery. The evidence at trial showed that two men entered the Waffle House on Wrightsboro Road in Augusta about 4:00 a.m. on February 17, 1988. They ordered two cups of coffee and split a danish roll between them. As they prepared to leave, they asked for two coffees to go. When the waitress returned to the counter with the coffee, the taller of the two men pulled a gun and demanded the money from the register. The other man just stood there. When the taller man got the money, the two men ran from the restaurant. The defendant’s fingerprints were found on the cups and saucers used by the robbers at the restaurant. However, the waitress was not able to identify the defendant positively as one of the men in the restaurant. The defendant presented an alibi that he was at home asleep on the night the crime was allegedly committed. Held:

The defendant argues that reversal is required because the trial court failed to charge the principle set out in OCGA § 24-4-6 that in a case based upon circumstantial evidence, the State must prove not only facts that are consistent with a hypothesis of guilt, but shall exclude every other reasonable hypothesis except the guilt of the defendant. Obviously, the case before us is based upon circumstantial evidence — the fingerprints found on the dishes. “To warrant a conviction based solely on fingerprint evidence, the fingerprints corresponding to those of the defendant must have been found in the place where the crime was committed, and under such circumstances that they could only have been impressed at the time the crime was committed. These cases require the state to prove to the exclusion of every other reasonable hypothesis that the fingerprints could only have been impressed at the time the crime was committed.” (Citations and punctuation omitted.) Harper v. State, 171 Ga. App. 63 (318 SE2d 502) (1984).

Decided December 5, 1989.

Bell & Bell, David B. Bell, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, Assistant District Attorney, for appellee.

“In the trial of criminal cases, where the guilt of the accused is dependent wholly upon circumstantial evidence, it is the duty of the court, without any request, to charge the law of circumstantial evidence, and the failure to do so requires the grant of a new trial. [Cits.]” Daniel v. State, 59 Ga. App. 454 (1) (1 SE2d 229) (1939). See also Cook v. State, 185 Ga. App. 585 (1) (364 SE2d 912) (1988).

“[E]ven in a case which is wholly dependent on circumstantial evidence, if from the proven facts only one reasonable hypothesis exists, i.e., that the defendant is guilty, then the trial court’s failure to give ... a jury charge [on OCGA § 24-4-6] does not constitute reversible error. [Cits.] ... An hypothesis which is at best merely possible cannot be equated to a reasonable hypothesis.” Stoker v. State, 177 Ga. App. 94, 96 (338 SE2d 525) (1985).

The facts in the present case fit within the exception to the rule set out in Stoker, supra. The waitress who served the robbers testified that the dishes from which the robbers ate and from which the fingerprints were taken had been washed before she used them to serve the robbers. Dr. Fowler, a forensic serologist, testified that washing would definitely remove fingerprints from the dishes. The evidence shows that no one else touched the dishes until police took custody of them. The conclusion is inescapable that the defendant’s prints were left on the dishes at the time of the robbery and he has offered no alternative explanation for the existence of this evidence that is consistent with his claim of innocence. Cf. Jackson v. State, 158 Ga. App. 530 (2) (281 SE2d 252) (1981). Therefore, the trial court’s failure to charge on OCGA § 24-4-6 was not reversible error.

Judgment affirmed.

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


text:
    A89A1436.
    MACK v. THIRD BEDFORD-PINES APARTMENTS, LTD.
    (389 SE2d 404)
   Carley, Chief Judge.

1. This direct appeal is from the judgment in a dispossessory action wherein the total amount of rent due was found by the trial court to be $2,693, an amount which is certainly greater than $2,500. Despite the payment into the registry of the court by appellant and the draw-down by appellee of a portion of this amount, $2,693 was the total amount in controversy because appellant had claimed entitlement to all such funds as he had paid in and had been drawn-down by appellee. See OCGA § 44-7-54 (c). Accordingly, appellee’s motion to dismiss the appeal for appellant’s failure to comply with the discretionary appeal provisions of OCGA § 5-6-35 (a) (3) is denied.

2. For the most part, appellant’s enumerations of error require a consideration of the transcript of the proceedings before the trial court. However, no transcript has been filed and the clerk of the trial court has informed this court that there is no transcript of the proceedings to be filed. “ ‘It is well settled that, absent a transcript, we are bound to assume that the trial judge’s findings are supported by competent evidence.’ [Cit.] ” McClindon v. Wright, 160 Ga. App. 348 (2) (287 SE2d 74) (1981).

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

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur fully in Division 2 but reach the ruling in Division 1, regarding jurisdiction, for a different reason.

During the pendency of the action, the trial court ordered the clerk to pay to the landlord those amounts of rent which had been paid into the registry by tenant and were not in controversy. This is provided for in OCGA § 44-7-54 (c) as a mechanism for retaining only those funds representing rent about which there is a dispute. By the time of trial there was only $507 in the registry, representing the amount which had been paid in by the tenant but was in dispute and thus subject to the court’s judgment.

Based on the court’s findings of fact, it concluded that plaintiff was entitled to the $507 plus $1,172. The judgment was entered for the latter amount only, plus costs, since plaintiff would receive $507 from the clerk as the final order directed and could not be given a judgment including that amount on which to levy. Thus the total amount in the controversy which the court had to resolve was $1,679, as defendant tenant had claimed that only $169 per month rent was due.

Consequently, the threshold amount for nondiscretionary appeals which is set out in OCGA § 5-6-35 (a) (3) is not met, and an application for appeal would be required but for the fact that the judgment also awards a writ of possession. The right to possession having been an additional issue resolved by the judgment appealed from, OCGA § 5-6-35 (a) (3) does not apply. Brown v. Assoc. Fin. Svcs. Corp., 255 Ga. 457, 458 (339 SE2d 590) (1986). Contrary to appellant’s argument, it is irrelevant that plaintiff, after the judgment was entered, did not obtain the writ to which it was entitled.

Decided December 5, 1989.

James Mack, pro se.

Wallace & deMayo, John L. Skelton, Jr., for appellee.


author: Sognier, Judge.

text:
    A89A1842.
    BRYANT v. THE STATE.
    (389 SE2d 405)
   Sognier, Judge.

James William Bryant appeals from a conviction for molestation of his two-year-old daughter.

1. Appellant first raises as error the trial court’s admission into evidence of testimony concerning a similar act. James Bridgers, a close family friend who lived in appellant’s household during the relevant time period, testified that approximately two years earlier appellant’s stepdaughter, who was not yet old enough to walk, was found to have a red, sore throat, and that in a conversation with Bridgers appellant admitted putting his penis into the child’s mouth. Appellant contends this testimony was too remote in time and circumstance to be relevant, and that its admission improperly placed his character into evidence and prejudiced the jury.

As a general rule, evidence of a defendant’s commission of prior similar acts is not admissible. However, ‘“[t]here are exceptions to this rule, and these exceptions have been rather liberally extended in cases of sexual crimes.’ [Cit.] ‘Sexual offenses of the same nature and within a short span of time, especially where they show a proclivity for a particular type of abnormal sexual activity, form somewhat of an exception to the general rule that evidence of other criminal activity is irrelevant and prejudicial .... [Cit.]’ [Cits.]” Pickelseimer v. State, 154 Ga. App. 223, 224 (2) (267 SE2d 845) (1980). In the case at bar, appellant’s admission of a prior molestation two or three years earlier of another very young girl residing in his household was properly admitted to show bent of mind. Childs v. State, 177 Ga. App. 257, 258 (1) (339 SE2d 311) (1985).

2. Appellant also enumerates as error the trial court’s admission of a statement he made to GBI agents, contending he made the statement in exchange for promise of a benefit. At the hearing held pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), appellant testified that he admitted molesting his daughter and signed a statement to that effect only because the investigating agents told him that if he confessed “I would receive psychiatric evaluation and that I would not go to jail, and I would receive my daughter back by the end of the week.” Both agents denied making any promises to appellant, and Agent Harvey specifically recalled that in response to appellant’s query whether if he admitted the crime he could “get it over with and . . . get his little girl back,” Harvey advised appellant that “if he admitted] that he molested his daughter, that he wouldn’t see his daughter because he’d be going to jail.”

Decided December 5, 1989.

Robert P. Westin, for appellant.

Joseph H. Briley, District Attorney, for appellee.

While OCGA § 24-3-50 prohibits the introduction of a statement induced “by the slightest hope of benefit,” the hope contemplated must be induced by another. Hall v. State, 180 Ga. App. 366, 367 (1) (349 SE2d 255) (1986). “ ‘A hope or fear which originates in the mind of the person making the confession and which originates from seeds of his own planting would not exclude a confession.’ [Cit.]” Id. Here, the GBI agents denied having made the promise claimed by appellant. The trial court’s findings regarding factual determinations and credibility when considering the admissibility of a confession will be upheld on appeal unless clearly erroneous. Snipes v. State, 188 Ga. App. 366, 368 (373 SE2d 48) (1988). The trial court being authorized to accept the agents’ word over appellant’s, Hall, supra at 367 (1), we find no error in the admission of the statement.

Judgment affirmed.

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


text:
    A89A0811.
    GRESHAM et al. v. ATLANTA GAS LIGHT COMPANY et al.
    (389 SE2d 502)
   Pope, Judge.

This premises liability action was brought by the parents and on behalf of their minor son Marc Gresham, who were the tenants of a mobile home owned by defendant Martha Ann Bailey. They sought damages for injuries Marc received when he tripped over the threshold of the back door, fell off the stairs and landed on a capped vertical pipe installed and maintained by defendant Atlanta Gas Light Company. The pipe protruded ten inches out of the ground and was located within eighteen inches from the side of the mobile home and two feet to the side of the stairs. Plaintiffs contended that there had formerly been a deck outside the rear door which was removed by defendant landlord when it became in disrepair and replaced by four wooden steps resting on concrete blocks, but having no handrails; and that at the threshold of the rear door was a metal lip which rose above the level of the interior carpeting requiring the user to step over the threshold and then down onto the first step, all of which constituted a dangerous and defective condition.

Plaintiffs further asserted that the gas company, in relocating its main fuel line into the mobile home park and the service lines into the individual mobile homes, had left the old replaced service lines above ground and did not intend to come back and cap these “risers” below the ground until after all relocation work was completed; that the old service line and riser on which Marc was injured no longer had any useful purpose; that the old service line and riser were located too close to the steps to conform to the applicable provisions of the gas company’s meter and house regulator installation manual; and that this constituted a dangerous and defective condition in the gas company’s property of which it had actual or constructive knowledge.

Defendant landlord filed a motion for summary judgment maintaining that at the time the lease was entered into, the plaintiff father inspected the mobile home, the threshold of the rear door, the rear steps and the pipe rising from the ground below, all of which were clearly visible and in plain view; that they existed in exactly the same patent and obvious condition at the time of Marc’s fall as when the father inspected the premises; and that at no time did plaintiffs notify or complain to her or her agent of any defect or lack of repair. Defendant gas company also moved for summary judgment, contending that plaintiffs could not recover as a matter of law because its only legal duty to them was to warn of hidden dangerous conditions of which it had knowledge superior to theirs; and that the pipe was an openly visible static condition at least as well known to plaintiffs as to the gas company. The trial court granted both motions for summary judgment and plaintiffs appeal.

1. “[Generally it may be stated that a landowner is not liable for injuries to an invitee arising from a patent defect on the premises preexisting the arrival of the invitee and of which the invitee knew or had the means of knowing equal to the landowner.” First Pacific Mgmt. Corp. v. O’Brien, 184 Ga. App. 277, 280 (361 SE2d 261) (1987). Accord Harmon v. Reames, 188 Ga. App. 812 (374 SE2d 539) (1988). However, OCGA § 44-7-2 (b) forbids landowners from avoiding the duty to make repairs and improvements or the duties created by housing codes. Thompson v. Crownover, 259 Ga. 126 (3) (377 SE2d 660) (1989). In their response to the motions for summary judgment plaintiffs submitted portions of the Standard Building Code of 1985, which they alleged was adopted as a housing code by Rockdale County and was in effect at the time of Marc’s fall. One of its provisions requires handrails on all stairways located more than three risers above grade. The significance of the housing code requirement was argued in plaintiffs’ response and no objection was raised by either defendant to submission in evidence of the pertinent portions of the Standard Building Code, which are now a part of the record in this court and thus deemed to have been considered by the trial court. See Professional Ins. Svcs. v. Sizemore Elec. Co., 188 Ga. App. 463 (373 SE2d 276) (1988).

Defendant landlord argues that plaintiffs have failed to plead or prove the housing code or any violation thereof. “ ‘On a motion for summary judgment, the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. . . . (T)he moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence.’ [Cit.]” First Union Nat. Bank v. J. Reisbaum Co., 190 Ga. App. 234, 235 (378 SE2d 317) (1989). While the Standard Building Code may not have constituted proof of the Rockdale County Housing Code, plaintiffs “had no initial burden of coming forward with such evidence. The assertions contained in [their] response to the motion for summary judgment were sufficient, without evidentiary support, to raise the issue of [a housing code violation] as a defense to the [motion], thereby placing the burden on [the landlord], as movant, to come forward with evidence negating this defense in order to establish [her] entitlement to summary judgment. [Cit.] Since [the landlord] failed to come forward with such evidence, we hold that the trial court erred in granting [her] motion for summary judgment.” Id. at 235-236. We also note, as did this court on motion for rehearing in the First Union Nat. Bank case, that no good reason exists why the landlord would not have been in as good a position as plaintiffs to come forward with evidence on the issue to show that there was no such provision in the Rockdale County Housing Code. Id. at 237.

2. In its motion for summary judgment, defendant gas company relied on the theory that its liability, if any, arose out of premises liability and that it was not liable to plaintiffs because they had equal or superior knowledge of the hazard posed by the protruding standpipe. We need not address the fact that no evidence was presented in regard to the knowledge or appreciation of danger which the young child in this case could have been expected to have, for defendant gas company’s liability, if any, is not based on premises liability but on the duty to exercise reasonable care in the maintenance of its pipes. The duty of a gas company which furnishes gas lines to a residence or other building is founded on the standard of reasonable care and not on notions of premises liability. See Bray v. Atlanta Gas Light Co., 46 Ga. App. 629 (3) (168 SE 96) (1933) (where this court held the gas company could not avoid liability to one injured by the company’s alleged negligence on the ground that the injured person was a trespasser). In regard to the maintenance of gas lines, “[a] company which produces and furnishes gas is bound to use such skill and diligence in its operations as is proportionate to the delicacy, difficulty, and nature of that particular business. [Cit.]” Christo v. Macon Gas Co., 18 Ga. App. 454, 455 (89 SE 532) (1916). Evidence was presented that the location of the standpipe in this case did not conform to the gas company’s own internal operating procedures. Thus, an issue of fact remains as to whether the gas company failed to exercise the requisite degree of care in leaving the standpipe at this location.

Decided November 20, 1989

Rehearing denied December 7, 1989

Chestnut & Livingston, Tom Pye, for appellants.

Fain, Major & Wiley, Charles A. Wiley, Jr., Robert M. Nesselroth, Paula M. Rafferty, James J. Thomas II, John L. Watkins, for appellees.

Neither is defendant gas company entitled to summary judgment on the ground that its negligence, if any, could not have been the proximate cause of the injury in this case. “In order for a party to be liable as for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient, if in ordinary prudence he might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might result. We cannot say as a matter of law from the evidence in the present case that any one defendant was or was not negligent, or that any particular act, if negligence, was or was not a sole or a concurring proximate cause of the injuries allegedly sustained. Whether there has been negligence and whether there was causal relation to alleged injuries are questions of fact for jury resolution, except when the circumstances are such that they will support but one result. Such was not the case here.” (Citations and punctuation omitted.) Lewis v. Harry White Ford, Inc., 129 Ga. App. 318, 320 (199 SE2d 599) (1973).

Judgment reversed.

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


text:
    A89A1088.
    JACKSON v. THE STATE.
    (389 SE2d 521)
   Pope, Judge.

Defendant Roy Lee Jackson appeals his conviction by a jury of two counts of armed robbery, enumerating as error the trial court’s instructions to the jury. Held:

1. Defendant, relying on Williams v. Kemp, 255 Ga. 380 (338 SE2d 669), cert. denied, 478 U. S. 1022 (1986) and Powell v. State, 187 Ga. App. 878 (372 SE2d 234) (1988), first argues that the trial court’s charge to the jury that they could “infer . . . that a person of sound mind and discretion intends the natural and probable consequences of his acts” is unconstitutionally burden-shifting and hence his conviction must be reversed. We disagree. The record shows that defendant relied solely on an alibi defense at trial and thus, as he acknowledges on appeal, intent was not at issue in this case. “In our opinion, [defendant’s alibi] defense raised the question of whether the [defendant] participated in the acts [comprising the charges against him], but did not create any material issue on the question of whether the [defendant] intended the consequences of his acts. Under these circumstances, it is clear to us beyond a reasonable doubt that the error in the charge did not contribute to the verdict of guilty.” Williams v. Kemp, supra at 388.

2. Defendant also contends the trial court erred in instructing the jury that “where a defendant’s statements are not consistent with and do not explain other direct and circumstantial evidence, defendant’s explanation may be rejected by you, the Jury, as the trier of fact.” Although not expressly approving this portion of the charge, we find no reversible error. “It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. [Cits.]” Williams v. State, 249 Ga. 822, 825 (3) (295 SE2d 293) (1982). Our review of the transcript shows that the charge, when taken as a whole, properly informed the jury as to the law concerning the determination of the credibility of the witnesses at trial, including the defendant, and the weight to be given to the testimony presented. Accordingly, we find this enumeration to be without merit. Accord Brantley v. State, 190 Ga. App. 642 (2) (379 SE2d 627) (1989) (in which the court declined to reverse the conviction where the jury was charged “[w]hat are the probabilities, the likelihood of [the defendant] lying under all the circumstances. ...”

Judgment affirmed.

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

Decided November 29, 1989

Rehearing denied December 7, 1989

L. Clark Landrum, for appellant.

David E. Perry, District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.

       Although, as the State argues, the language charged by the court here appears in several cases decided by this court, “that fact alone does not render it appropriate as a jury instruction. . . . Language which would be proper in a headnote or in tbe opinion by a reviewing court may be improper when embodied in a charge to a jury, and the fact that the excerpt was taken verbatim from a decision of this court did not make the giving of it proper.” (Citation and punctuation omitted.) Blount v. Moore, 159 Ga. App. 80, 82 (282 SE2d 720) (1981).


text:
    A89A1134.
    DEPARTMENT OF TRANSPORTATION v. CRAPPS et al.
    (389 SE2d 342)
   Pope, Judge.

Appellant Department of Transportation (DOT) appeals from a condemnation award made to appellees. The sole enumeration of error is that the trial court erred in failing to give this requested charge: “Owners of land abutting a public highway have the right to use the highway along with other members of the public. However, they are not entitled to the exclusive use of such property. Where a property owner uses a public highway or a portion thereof as a parking lot for himself or his customers, and as a result of highway improvements, he is no longer able to use the highway for parking, the owner is not entitled to compensation for the loss of such parking space and you should not consider such fact in arriving at your verdict.” (Indention omitted.)

A review of the record does not support DOT’S argument that the evidence established that Crapps was using the highway or a portion of it as a parking lot. The DOT’s expert testified that, in his opinion, if cars parked a certain way, they would be partially within the right-of-way. However, Crapps testified that cars did not park perpendicularly and when parked parallel, as was the usual practice, they were on his property. On cross, Crapps conceded that, in some situations, some portion of a parked car might overhang the sidewalk. Held:

“ ‘In order for a refusal to charge to be error, the written requests therefor must be entirely correct and accurate, and must be adjusted to the pleadings, the law, and the evidence in the case. (Cit.)’ [Cit.]” Wilkes v. Dept. of Transp., 176 Ga. App. 739, 742 (337 SE2d 404) (1985). The testimony relied upon by DOT to support the charge did not establish that Crapps used the right-of-way as a parking lot; it merely speculated that if vehicles parked a certain way, a portion of the right-of-way might be used. The request is broader than the evidence warranted and was refused properly.

Judgment affirmed.

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

Decided October 31, 1989

Rehearing denied December 7, 1989.

Michael J. Bowers, Attorney General, Roland F. Matson, Assistant Attorney General, Zorn & Caldwell, William A. Zorn, for appellant.

Miles, Baker & Morris, Keith M. Morris, for appellees.


author: Beasley, Judge.

text:
    A89A1259.
    BROWN REALTY ASSOCIATES, INC. et al. v. THOMAS.
    (389 SE2d 505)
   Beasley, Judge.

Following denial of their motion to vacate, set aside, and in arrest of judgment, defendants Brown Realty Associates, Inc., Alonza C. Brown, Gladys R. Brown, and Alonza C. Brown, Jr. (hereinafter the Browns) appeal from the judgment entered on a jury verdict in favor of plaintiff Thomas. The suit alleged fraud, violation of the Fair Business Practices Act of 1975 (FBPA), OCGA § 10-1-390 et seq., and violation of the civil Georgia Racketeer Influenced & Corrupt Organizations Act (RICO), OCGA § 16-14-1 et seq., in the Browns’ acquisition of Thomas’ home.

Thomas was originally one of five plaintiffs who filed separate suits contending that the Browns had engaged in a scheme of “foreclosure fraud” to acquire their residences. The litigation was initially certified below as a class action but the certification was reversed on appeal to the Supreme Court. See Stevens v. Thomas, 257 Ga. 645 (361 SE2d 800) (1987); see also Brown v. Thomas, 257 Ga. 68 (354 SE2d 830) (1987) in regard to the appeal of a contempt order against the Browns.

1. Appellants contend that the trial court erred in denying their motion for summary judgment as to Thomas’ claims of fraud and violation of the FBPA. This Court cannot consider the contention because “ ‘ “[a]fter verdict and judgment, it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case.” [Cits.]’ [Cit.]” Hardaway Constructors v. Browning, 176 Ga. App. 530 (2) (336 SE2d 579) (1985).

2. Appellants contend that the trial court erred in denying their motion to dismiss Thomas’ suit with prejudice on the grounds that it was barred by the doctrines of res judicata, collateral estoppel, and estoppel by judgment inasmuch as the allegedly fraudulent sale of Thomas’ property was raised as a defense in a dispossessory proceeding brought by appellants in the state court of another county.

The motion was denied on the bases that it was untimely, having been filed on the morning of trial which had been specially set after the litigation had gone on for over three years, and because the state court would not have had jurisdiction over the issues.

Without addressing the timeliness of the motion to dismiss on the affirmative defense, see OCGA § 9-11-8 (c) and Ezzard v. Morgan, 118 Ga. App. 50, 51 (1) (162 SE2d 793) (1968), the trial court correctly concluded that all of the claims, which centered around the question of title to real property, could not properly have been determined in the state court dispossessory action. Superior courts have exclusive jurisdiction in cases respecting title to land. Ga. Const. 1983, Art. VI, Sec. IV, Par. I; Hyman v. Leathers, 168 Ga. App. 112, 113 (2) (308 SE2d 388) (1983); see OCGA § 44-2-60. Res judicata only applies if the judgment is from “a court of competent jurisdiction.” OCGA § 9-12-40.

3. Appellants contend the trial court erred in denying their motion in limine and thereby permitting testimony of plaintiff’s witnesses who were purportedly involved in “similar transactions” with appellants. They argue that the witnesses were improperly allowed to testify about unrelated individual transactions which added little probative value to the issues but were extremely prejudicial to defendants. They do not cite any specific testimony nor do they elaborate as to how they were prejudiced. Instead they make the general assertions that, notwithstanding the RICO issues, the testimony should not have been permitted without protective measures and without satisfying threshold inquiries necessary for admission, citing Deckner-Willingham Lumber v. Turner, 171 Ga. 240 (155 SE 1) (1930); admission of the testimony violated the holding in Stevens v. Thomas, supra; even if the trial court did not err in failing to grant the motion in limine and/or limiting the similar transaction testimony, such evidence should have been excluded by the parol evidence rule.

The court conducted a full hearing on the motion in limine which was filed three days before trial. Defendants argued what they now urge and also that the testimony would be cumulative. The court initially denied the motion but gave defendants leave to raise further objection during the course of trial if it became clear that the objected-to testimony was cumulative. Defendants later objected and the court again denied exclusion of the testimony.

Appellants’ enumeration of error requires more than a blanket objection to the testimony and some specificity regarding the alleged prejudice. See Essig v. Cheves, 75 Ga. App. 870, 876 (3) (44 SE2d 712) (1947), decided under former Code 1933, § 6-1607, now OCGA § 5-6-40. Even if the enumeration is deemed sufficient for consideration on the merits, appellants’ contention fails.

“The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conducta OCGA § 24-2-2. (Emphasis supplied.) In order to sustain her RICO claim, plaintiff had to show, inter alia, a “pattern of racketeering activity.” See OCGA § 16-14-4. Therefore, the conduct of the defendants in the proffered other transactions was relevant to establish such a pattern. Contrary to appellants’ contention, permitting such evidence did not run afoul of the holding in Stevens, supra. The fact that the separate claims were determined not to have sufficient commonality so as to be appropriate for class action did not render the evidence of these other transactions irrelevant or inadmissible in establishing elements of Thomas’ claims.

The authority cited by appellants did not mandate that the trial court conduct more extensive inquiry than it did at the time. Moreover, the trial court afforded defendants the protective measure of later consideration of their objection to the testimony once the court was privy to it. The very authority relied on by appellants, i.e., Deckner, supra, points to the proper admission of the objected-to evidence to show defendants’ fraudulent intent in the transaction at issue. Id. at 244 (1).

Appellants’ parol evidence objection also fails. The rule that parol evidence cannot be received to change or add to the terms of a written contract does not apply where the alleged contract was procured by fraud. Spires v. Relco, Inc., 165 Ga. App. 4, 5 (2) (299 SE2d 58) (1983).

4. Appellants contend the trial court erred in admitting into evidence as plaintiff’s exhibits copies of certain state and superior court deeds and dispossessory indexes because such evidence was irrelevant and clearly prejudicial. They argue that the sole conceivable purpose for the indexes was to inflame and prejudice the jury by creating the false inference that Thomas was representative of the position of 140 other people, and that Thomas was allowed to do indirectly what the Supreme Court had previously ruled she could not do, i.e., pursue the litigation as a class action.

The exhibits were tendered and admitted during the testimony of plaintiff’s witness Brennen, an attorney representing an individual in another lawsuit against the Browns. Brennen testified that, based on his investigation and examination of the objected-to documents, he was of the opinion that someone was engaging in an enterprise essentially founded on deceptive acts and misrepresentation by which they improperly acquired the equity out of homes of vulnerable owners who were disadvantaged by imminent foreclosure.

The evidence was relevant and its introduction valid and appropriate to show a basis for the witness’ testimony. Furthermore, allowing the exhibits did not circumvent the decision to disallow the litigation as a class action. Nor could it have created the false impression that Thomas was representing others as well. There was absolutely no testimony to that effect, and the witness was asked to identify from the documents exactly which of the transfers he had investigated.

There was no error in admitting the documents.

5. Appellants contend the court committed reversible error in admitting into evidence court records of prior out-of-state litigation involving the Browns as such admission was of little probative value and extremely prejudicial as demonstrated by the award of punitive damages. They add that the records were improperly introduced for impeachment purposes.

Plaintiff sought the admission of evidence of the prior lawsuits not for impeachment purposes but to support the claim for punitive or exemplary damages. “The award of punitive damages requires a tort accompanied by aggravating circumstances either in the act or the intention, evidenced by ‘wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences.’ [Cits.]” Ga.-Car. Brick &c. Co. v. Brown, 153 Ga. App. 747, 749 (2) (266 SE2d 531) (1980). Evidence of the prior litigation was relevant to show any such conduct by the Browns which would authorize, if it did, an award of punitive damages. See Thompson v. Moore, 174 Ga. App. 331, 332 (1) (329 SE2d 914) (1985).

6. Appellants complain of the trial court’s refusal to give their request to charge number thirteen or its substantial equivalent. The original request read, “Even if it is found that fraud existed, where a plaintiff can read and it does not appear that she was prevented, by artifice on [sic] fraud, from reading the instrument prior to signing it to determine the truth or falsity of the alleged representation, then the plaintiff’s failure to exercise proper diligence appears as a matter of law and there can be no recovery for fraud.”

“In order for a refusal to charge to be error, the requests must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge. [Cit.]” Medoc Corp. v. Keel, 166 Ga. App. 615, 618 (2) (305 SE2d 134) (1983).

There was evidence of a fiduciary agency relationship between the parties. In such a case, the principle in the request to charge is not applicable. See Powell v. James, Hereford & McClelland, 189 Ga. App. 747 (2) (377 SE2d 683) (1989). The request as submitted was not a correct statement of the law adjusted to the evidence in the case. Appellants did not modify the request that the principle was applicable only upon the finding that no fiduciary relationship existed. Therefore, refusal was not erroneous.

7. Appellants contend in their second enumeration that the trial court erred in denying their motion for a directed verdict at the close of evidence on the claim for violation of the FBPA. Two reasons are given: plaintiff failed to introduce evidence of the delivery of the notice required by OCGA § 10-1-399 (b), and the FBPA does not apply to the transaction at issue.

Thomas did not introduce evidence of the statutory notice requirement. “Even assuming arguendo that the transaction occurred in ‘the context of the consumer marketplace’ (see Zeeman v. Black, 156 Ga. App. 82, 83 (273 SE2d 910) (1980)), [Thomas’] right to recover under the Act was foreclosed by [her] failure to introduce evidence that [she] had delivered a written demand for relief to the [defendants] at least 30 days prior to filing suit, as required by OCGA § 10-1-399 (b).” Tilley v. Page, 181 Ga. App. 98, 99 (2) (351 SE2d 464) (1986). Appellants were entitled to a directed verdict on the FBPA claim.

8. Appellants contend that the trial court erred in denying their motion to vacate, set aside and in arrest of judgment because the verdict form erroneously did not allocate under which count the general damages were awarded, making it inappropriate for the court in entering judgment to triple the general damage award on the bare assumption that it was awarded pursuant to the FBPA. They further argue that inasmuch as they were entitled to prevail as a matter of law on the FBPA claim, Thomas was not entitled to treble damages.

The jury returned a verdict in favor of plaintiff on her complaint and on defendants’ counterclaim. It affixed liability specifically as to each of the four defendants and on each of the three counts of fraud, FBPA, and RICO. It also made the specific finding that the defendants intentionally violated the FBPA. The final portion of the verdict form in regard to the main claim stated, “If you find for the Plaintiff, you may consider an award of damages. You should make your award, if any, for each separate category: . . it provided spaces for an award of actual damages, punitive damages, and attorney fees. The jury filled in its award of $45,500 actual damages, $125,000 punitive damages, and $100,875 attorney fees.

The trial court entered judgment on the verdict awarding the damages on the fraud count, tripling the actual damages to increase the award by $91,000 on the FBPA count because the jury determined that defendants’ violation of the Act was intentional, and also awarding joint and several judgment against the defendants on the RICO count. The judgment recited that it was being entered after no objections were made to the form of the verdict and after the jury had been polled and affirmed the verdict in open court.

At trial defendants proposed special interrogatories as to the RICO count and a general verdict form on the question of fraud. They did not object during the trial, as they do now, that the form was deficient in not allocating under which count the general damages were being awarded. There was thus no opportunity for the trial court to take any requested remedial action in this regard prior to the jury being disbanded. In any event, there was .no error in allocating the awarded damages to the fraud count because it is undisputed that the jury found fraud and such was the basis of recovery under the remaining claims.

Decided November 20, 1989

Rehearing denied December 7, 1989.

McKenney & Froelich, William J. McKenney, David M. Kupsky, for appellants.

Sakas & Horne, Jeffrey L. Sakas, Michael P. Froman, Robert S. Whitelaw, for appellee.

However, inasmuch as plaintiff failed to prove her cause under the FBPA, mandating that defendants prevail on that claim as a matter of law, judgment for plaintiff entered pursuant to her FBPA claim was error. That portion of the judgment awarding damages for violation of the FBPA cannot stand.

Although the trial court chose to assess the treble damages under the FBPA count, see OCGA § 10-1-399 (c), it was also obligated to triple the actual damages on the jury’s finding of violation of the Georgia RICO Act. See OCGA § 16-14-6 (c). The judgment must be modified to reflect mandatory treble actual damages under the RICO count as well as defendants’ right to judgment on the FBPA claim.

Judgment affirmed in part and reversed in part with direction.

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


text:
    A89A1386.
    SMALL BUSINESS ADMINISTRATION et al. v. DESAI et al.
    (389 SE2d 372)
   Pope, Judge.

The Small Business Administration and Fulton Federal Savings & Loan Association brought this appeal from the trial court’s dismissal of an application to confirm a foreclosure sale on real property. The foreclosure sale was initiated by Fulton Federal, the mortgagee of the property. However, the application to confirm the sale was filed by the SBA which guaranteed the loan. The debtors moved to dismiss the application for confirmation because it was not filed by the foreclosing party as required by OCGA § 44-14-161. In response, the SBA and Fulton Federal moved to add Fulton Federal as a co-petitioner to the application. The trial court denied the motion to add Fulton Federal and granted the debtors’ motion to dismiss.

1. Pursuant to OCGA § 9-11-17 (a), no action should be dismissed on the ground that it is not prosecuted in the name of the real party in interest until reasonable time has been allowed to permit the real party in interest to be joined or substituted in the action. Here, the real party in interest made a timely motion to be added as a party to the application for confirmation in response to the motion to dismiss. Even though an application to confirm a foreclosure sale is a special statutory proceeding and not a “civil suit” in the ordinary meaning of that term (see Wall v. Fed. Land Bank of Columbia, 240 Ga. 236 (240 SE2d 76) (1977); Jonesboro Investment Trust Assoc. v. Donnelly, 141 Ga. App. 780 (234 SE2d 349) (1977)), we reject the debtors’ argument that the Civil Practice Act does not apply to applications for confirmation. “[The Civil Practice Act] shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law; but, in any event, the provisions of [the Act] governing the sufficiency of pleadings, . . . joinder of parties and causes [and] making parties . . . shall apply to all such proceedings.” OCGA § 9-11-81. The Civil Practice Act controls in an application to confirm a foreclosure sale and permits the adding of parties to the proceedings. An application should not be dismissed because additional parties are necessary for adjudication but additional parties may be added. Southern Mut. Investment Corp. v. Thornton, 131 Ga. App. 765 (4) (206 SE2d 846) (1974). The motion to add Fulton Federal as the proper party to bring the application should have been granted in this case.

We also reject the debtors’ argument that the addition of Fulton Federal as an applicant does not relate back to the date the application was filed by the SBA because, having been filed by the wrong party, it was void ab initio. Pursuant to the Civil Practice Act, OCGA § 9-11-15 (c), the addition of parties to an application for confirmation relates back to the date of the original filing. An amendment to add Fulton Federal would be effective under the relation back rule even though the thirty-day period imposed by OCGA § 44-14-161 for reporting the sale and obtaining confirmation on it had expired by the time Fulton Federal moved to be added as a party. See Horne v. Carswell, 167 Ga. App. 229 (306 SE2d 94) (1983). Goodman v. Vinson, 142 Ga. App. 420 (236 SE2d 153) (1977), cited by the debtors in support of their argument that the addition of Fulton Federal after the thirty-day period for filing a report would not be effective, is distinguishable. In the case at hand, unlike the facts in Goodman, more than mere notice of an intent to seek a deficiency judgment was given to the debtors; a timely report of sale was, in fact, filed with the judge even though not by the real party in interest. Consequently, the trial court erred in denying the motion to add Fulton Federal and in dismissing the application for confirmation.

Decided November 22, 1989

Rehearing denied December 7, 1989

Chambless, Higdon & Carson, Thomas F. Richardson, Marc T. Treadwell, for appellants.

Gambrell, Clarke, Anderson & Stolz, James L. Paul, Paul H. Anderson, for appellees.

. 2. Because we have already held that the trial court erred, we need not address the remaining enumeration of error.

Judgment reversed.

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


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A89A1854.
    BROCKETT POINTE SHOPPING CENTER, LTD. v. DEVELOPMENT CONTRACTORS, INC.
    (389 SE2d 374)
   McMurray, Presiding Judge.

Brockett Pointe Shopping Center, Ltd. (“Brockett Pointe”) brought an action against Development Contractors, Inc. (“DCI”) to vacate an arbitration award entered in favor of DCI. Brockett Pointe alleged that the arbitration award is not enforceable because one of the three arbitrators was improperly appointed. DCI responded and sought to confirm the arbitration. The undisputed facts reveal the following: On July 23, 1986, Brockett Pointe and DCI entered into a contract for the construction of a shopping center. The parties agreed that all disputes arising from the construction project would be resolved in accordance with the Construction Industry Arbitration Rules (“the Rules”) of the American Arbitration Association (“AAA”).

AAA, in cooperation with the National Construction Industry Arbitration committee, maintains a National Panel of Construction Industry Arbitrators (“the Panel”). Section 13 of the Rules provides a procedure by which AAA selects arbitrators from the Panel for parties who are subject to the Rules. This section provides as follows: “If the parties have not appointed an arbitrator and have not provided any other method of appointment, the arbitrator shall be appointed in the following manner: Immediately after the filing of the Demand or Submission, the AAA shall submit simultaneously to each party to the dispute an identical list of names of persons chosen from the Panel. Each party to the dispute shall have seven days from the mailing date in which to cross off any names to which it objects, number the remaining names to indicate the order of preference, and return the list to the AAA. If a party does not return the list within the time specified, all persons named therein shall be deemed acceptable. From among the persons who have been approved on both lists, and in accordance with the designated order of mutual preference, the AAA shall invite the acceptance of an arbitrator to serve. If the parties fail to agree on any of the persons named, if acceptable arbitrators are unable to act, or if, for any other reason, the appointment cannot be made from the submitted lists, the AAA shall have the power to make the appointment from among other members of the Panel without the submission of any additional lists.” (Emphasis supplied.)

A dispute subsequently arose between DCI and Brockett Pointe regarding the cost of construction and the matter was referred to AAA for arbitration. AAA submitted two identical lists of 33 qualified arbitrators to the parties. (The first list comprised 18 prospective arbitrators and the second list comprised 15 prospective arbitrators.) Brockett Pointe and DCI were given an opportunity to review the lists and eliminate prospective arbitrators who were not acceptable. One mutually acceptable arbitrator was selected from the first list and two other mutually acceptable arbitrators were selected from the second list.

The arbitration was scheduled for November 1-3, 1988. However,, one of the arbitrators who had been assigned to resolve the dispute notified AAA that he would be unable to serve at the hearing. AAA notified Brockett Pointe and DCI of the problem and subsequently appointed a substitute arbitrator who was not on the list of prospective arbitrators. AAA provided the parties with the substitute arbitrator’s qualifications and informed Brockett Pointe and DCI that “[objections to the appointment. . . should be factual in nature and received no later than . . . Monday, October 31, 1988.” (Notification of appointment of the substitute arbitrator was made via a letter dated October 28, 1988.) Brockett Pointe objected on the grounds that the administrative appointment was in violation of the Rules and because the “biographical data” of the substitute arbitrator “suggests that he might have a bias towards contractors. . . .” Thereafter, AAA affirmed that one of the mutually acceptable arbitrators could not attend the November 1-3,1988, hearing and that, “[p]ursuant to section 13 of the Construction Industry Arbitration Rules,” an administratively appointed arbitrator would be assigned as a substitute. Brockett Pointe filed an “OBJECTION AND DEMAND FOR DE NOVO HEARING” with AAA and notified AAA that it would not appear at the scheduled hearing.

On November 1-2, 1988, a hearing was conducted before the three arbitrators assigned by AAA. Brockett Pointe was not present and DCI presented evidence in opposition to Brockett Pointe’s “OBJECTION AND DEMAND FOR DE NOVO HEARING.” The arbitrators denied this motion and proceeded with the hearing, accepting DCI’s evidence on the merits of the dispute. The arbitrators allowed Brockett Pointe 12 days after the close of the hearing to submit evidence in support of its position. However, Brockett Pointe did not respond and the arbitrators subsequently entered an award in favor of DCI. From this evidence, the superior court denied Brockett Pointe’s motion to vacate the arbitration award and granted DCI’s motion to confirm the arbitration award. This appeal followed. Held:

In support of its sole enumeration, Brockett Pointe argues that the method used by AAA in selecting a substitute arbitrator was in violation of the Georgia Arbitration Code, OCGA § 9-9-80 et seq. (now redesignated as OCGA § 9-9-1 et seq.).

At the outset, we note that DCI presented undisputed evidence showing that out-of-state goods, services, materials and financing were supplied during execution of the construction contract. This evidence shows that the transaction involved interstate commerce as contemplated by 9 USCA § 1. It therefore follows that the parties’ arbitration agreement is controlled by the Federal Arbitration Act, not the Georgia Arbitration Code. ADC Constr. Co. v. McDaniel Grading, 177 Ga. App. 223, 224 (1) (338 SE2d 733); McCormick-Morgan, Inc. v. Whitehead Elec. Co., 179 Ga. App. 10, 12 (345 SE2d 53). See Hilton Constr. Co. v. Martin Mechanical Contractors, 251 Ga. 701, 703 (308 SE2d 830).

The Federal Arbitration Act provides that where an arbitration agreement contemplates “a method of naming or appointing an arbitrator or arbitrators . . . , such method shall be followed. ...” 9 USCA § 5. In the case sub judice, Brockett Pointe argues that AAA failed to follow the guidelines of the arbitration agreement “because the replacement [arbitrator] was not made from a list of prospective arbitrators from which the parties were given the opportunity to make objections.” This argument is without merit.

Section 13 of the Rules provides that “AAA shall have the power to make [an] appointment from among other members of the Panel without the submission of any additional list” where “the appointment cannot be made from the submitted lists. . . .” Brockett Pointe does not contend, nor does the record show that a substitute arbitrator could have been chosen from the submitted lists. Consequently, AAA did not breach the arbitration agreement by appointing a substitute arbitrator from the Panel without submitting additional lists of prospective arbitrators. It therefore follows that AAA appointed the substitute arbitrator according to the parties’ arbitration agreement and that the superior court properly denied Brockett Pointe’s motion to set aside the arbitration award and properly granted DCI’s motion to confirm the award. Compare In re Lobo & Co. v. Plymouth Navigation Co., 187 FSupp. 859, 860 (S.D.N.Y. 1960).

Decided November 22, 1989

Rehearing denied December 7, 1989

Brent & Valíanos, James C. Gaulden, Jr., for appellant.

Lefkoff, Duncan, Grimes & Dermer, Joseph Lefkoff, Kimberly A. Richardson, for appellee.

Judgment affirmed.

Corley, C. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in the decision but not in the dictum implied in the last paragraph by way of the sentence: “Brockett Pointe does not contend, nor does the record show that a substitute arbitrator could have been chosen from the submitted lists.”

This sentence implies that before AAA could appoint an arbitrator from the Panel, it would first have to try to get one who had not been striken by one of the parties from the submitted lists. We assume that none could have been chosen from those lists.

Rule 13 does not impose such a requirement or precondition to AAA’s choosing one from the whole Panel. It says that if an acceptable arbitrator cannot act, AAA can appoint from “other members” of the Panel, i.e., members other than those on the submitted lists.


author: Benham, Judge.

text:
    A89A0916.
    RESIDENTIAL DEVELOPMENTS, INC. v. MASSICOTT.
    (389 SE2d 347)
   Benham, Judge.

In June 1986, appellant, Residential Developments, Inc. (Residential), sued the Massicott Corporation (Corporation), a real estate brokerage firm, for breach of contract and breach of fiduciary duty after the firm failed to release a portion of the earnest money it held in escrow pursuant to a realty agreement. The trial court entered judgment in Residential’s favor in February 1987. In September 1987, after post-judgment discovery revealed that the Corporation had no assets from which the judgment could be satisfied, Residential filed an action against Herbert Massicott, sole stockholder and broker responsible for the Corporation, to recover the amount of the judgment. Contemporaneously with the filing of the action against Massicott, Residential notified the Real Estate Commission of the commencement of the action, pursuant to OCGA § 43-40-22 (d) (1), and subsequently filed a claim for collection pursuant to OCGA § 43-40-22 (d) (2). The commission opposed the claim, contending that since Residential failed to notify the commission when it filed its first action against the Corporation, it had failed to comply with the statutory requirement that “[w]hen any aggrieved person commences action for a judgment which may result in collection from the real estate education, research, and recovery fund [(fund)], the aggrieved person shall notify the commission in writing ... to this effect at the time of the commencement of such action.” OCGA § 43-40-22 (d) (1). The trial court held that Residential did fail to comply with the statute section and denied its. claim for collection from the real estate recovery fund.

Appellant takes the position that the trial court erred in construing the statute so as to require notice to the commission at the time the action was commenced against the brokerage firm rather than at the time action was commenced against the individual broker responsible for compliance with the real estate escrow laws. We disagree and affirm the trial court’s judgment.

It is true that OCGA § 43-40-22 “is aimed to insure payment to a successful plaintiff against a defendant who might otherwise be judgment proof” (Campagna v. Sara Hudson Realty Co., 137 Ga. App. 451 (224 SE2d 102) (1976)), but in order for a claimant to recover from the fund, he must strictly comply with the statutory “procedures and prerequisites.” Id. The judgment against Massicott, which forms the basis for appellant’s claim against the fund, derives from the judgment against the Corporation, i.e., it involves the same $7,000 earnest money appellant sought from the Corporation in the initial lawsuit. Although the judgment against the Corporation was not actually the one pursuant to which appellant filed its claim, it is clear that it was a “judgment which may result in collection from the real estate education, research and recovery fund” (OCGA § 43-40-22 (d) (1)), and therefore required notice to the commission. Appellant did not notify the commission of the initiation of the action against the Corporation, and thereby deprived the commission of its “right to intervene in and defend” the action. Id. We construe the statute as conferring to the commission an absolute right to intervene and defend, and the fact that the commission does not do so in a particular case does not obviate the necessity of the aggrieved party to give the required statutory notice. The statute states that the aggrieved party “shall notify the commission in writing ... at the time of the commencement of such action.” OCGA § 43-40-22 (d) (1). “ ‘The word “shall” in a statute “is a word of command, and the context ought to be very strongly persuasive before that word is softened into a mere permission.” [Cits.]’ ” Potts v. State of Ga., 170 Ga. App. 216, 218 (316 SE2d 587) (1984). We do not find that in this context such a softening is warranted; thus, appellant’s omission of the notification bars its right to recover from the fund. “The failure of an aggrieved person to comply with all of the provisions of this Code section shall constitute a waiver of any rights under this Code section.” OCGA § 43-40-22 (i). The trial court did not err in denying appellant’s claim for collection from the real estate education, research, and recovery fund.

Decided November 9, 1989

Rehearing denied December 8, 1989

Heyman & Sizemore, William H. Major, for appellant.

Michael J. Bowers, Attorney General, William B. Hill, Jr., Deputy Attorney General, Mark H. Cohen, Assistant Attorney General, for appellee.

Judgment affirmed.

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


text:
    A89A1943.
    SHORTES v. THE STATE.
    (389 SE2d 354)
   Benham, Judge.

This appeal is from appellant’s conviction for aggravated assault. The issues raised on appeal are the admissibility of hearsay evidence offered under the res gestae exception to the hearsay rule, and the sufficiency of the evidence. We find no error and affirm.

1. The alleged victim in this case is appellant’s mother. She did not testify at trial, but the State introduced the testimony of Wight, a friend of the victim, who related what the victim told her about the assault with which appellant was charged. In overruling appellant’s hearsay objection, the trial court found that the testimony was sufficiently close in time to the events related so as to be within the res gestae exception.

“Under OCGA § 24-3-3, ‘(d)eclarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.’ The admissibility of declarations as part of the res gestae is left to the sound discretion of the trial court, considering the time, circumstances, and statements in question. [Cit.] It is a determination in which very often no precise time when the res gestae ends may be fixed. [Cits.]” Ward v. State, 186 Ga. App. 503 (1) (368 SE2d 139) (1988).

Wight testified in a proffer of evidence outside the jury’s presence that the victim arrived at Wight’s home at 6:00 a.m., visibly suffering from a beating, and related the following: that while she was in the kitchen around 5:30 a.m., appellant hit her in the back of the head, beat her, and then dragged her into the swimming pool, and that she had then driven to Wight’s home. Wight testified that the victim lived 12 miles from Wight’s home and that the drive took 20 minutes. Applying those facts to the rule stated in Ward, supra, we find no abuse of discretion in the trial court’s decision that the statements came within the res gestae. Accordingly, we find no error in the admission of Wight’s testimony.

Decided November 20, 1989

Rehearing denied December 8, 1989

Porter & Lehman, Thomas L. Lehman, for appellant.

J. Brown Moseley, District Attorney, for appellee.

2. For the first time on appeal, appellant contends that admission of Wight’s testimony concerning the victim’s statements deprived her of her constitutional right to confront witnesses against her. “Grounds which may be considered ... on appeal are limited to those which were raised at trial.” Proffitt v. State, 181 Ga. App. 564 (2) (353 SE2d 61) (1987).

3. The evidence adduced at trial authorized the jury to find that appellant attacked and beat her mother with a baseball bat and then dragged her into a swimming pool, causing severe bruises, cuts, and scrapes, and breaking her glasses and a bridge in her mouth. We find that evidence sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of aggravated assault. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Adams v. State, 173 Ga. App. 877 (1) (328 SE2d 767) (1985).

Judgment affirmed.

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


text:
    A89A0892.
    PETROLANE GAS SERVICE, INC. v. EUSERY et al.
    (389 SE2d 355)
   Beasley, Judge.

Following the denial of its motion for new trial, defendant Petrolane Gas Service, Inc., appeals the judgment entered on the jury’s verdict in favor of plaintiffs. The suit was for Mrs. Eusery’s personal injuries and Mr. Eusery’s loss of consortium, allegedly resulting from a collision between a car driven by Mrs. Eusery and a truck driven by a Petrolane employee. The jury returned a general verdict of $152,300 on the wife’s claim and $15,000 for the husband’s loss.

The appeal addresses solely the issue of punitive damages. This action arose prior to the July 1, 1987, effective date of ámendment to OCGA § 51-12-5 and OCGA § 51-12-5.1. Appellant contends the trial court erred in allowing the jury to consider punitive damages when there was no evidence to support such an award; the court improperly charged the jury on the recoverability of punitive damages, declined to give the company’s charge on the nonrecoverability of punitive damages, and declined to remove the issue of punitive damages from jury consideration; the court’s punitive damages charge was an incorrect statement of law.

1. “OCGA § 51-12-5 permits a jury to award punitive (exemplary) damages ‘(i)n a tort action in which there are aggravating circumstances, in either the act or the intention . . .’ It is well established that that language means such damages ‘cannot be imposed in any case unless there is willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. (Cit.)’ [Cit.]” Rossville Apts. Co. v. Britton, 178 Ga. App. 194 (1) (342 SE2d 504) (1986). “ ‘ “The latter expression (conscious indifference to consequences) relates to an intentional disregard of the rights of another, knowingly or wilfully disregarding such rights.” ’ [Cits.] ‘ “Mere negligence, although gross, will not alone authorize the recovery of punitive damages.” ’ [Cits.]” Associated Health Systems v. Jones, 185 Ga. App. 798, 802 (2) (366 SE2d 147) (1988).

The relevant circumstances of the collision were undisputed at trial. Mrs. Eusery was driving eastbound on a two-lane road on her way to her sister’s house. The speed limit was 55 m.p.h. Access to the sister’s house could be had from two driveways off the two-lane road. Eusery slowed to 10-15 m.p.h. and signaled that she was going to make a left turn into the first driveway. The truck had also been traveling eastbound and was behind Eusery’s vehicle.

As the truck was coming out of the flat part of the road and up the hill, the driver saw Eusery’s car in front of him. At that time the truck was probably going 45-50 m.p.h. The driver saw Eusery slowing as if to turn, assumed she was going to turn in the first driveway, thought she would clear the roadway by the time of his approach, and therefore shifted the truck’s gears to go up the hill so as not to have to stop. As the truck approached, Eusery did not turn. Instead, she drove at the reduced speed for another 800-900 feet to the second driveway and began a left turn into it. The truck was going faster than Eusery’s car but was not “running fast”; the truck driver was not speeding and the truck was properly loaded. There was no evidence that the truck driver was impaired by alcohol or in any other manner or that he was in any kind of hurry.

When the driver saw that Eusery was not going to make the turn into the first driveway and clear the road, as he assumed she would, he realized he would not be able to stop the truck in time to avoid hitting Eusery’s car. He drove the truck across the centerline in an attempt to avoid hitting Eusery by going around her. The attempt was unsuccessful. As Eusery began to turn, her car was hit on the I driver’s side by the Petrolane truck. I

“Ordinarily the imposition of ptmitive damages is an issue for the jury. However, the controlling criteria is whether there is any evidence to support such an award. [Cit.]” Associated Health Systems, supra at 802 (2). The proof offered in the instant case, as in that case, does not measure up to the standard authorizing imposition of punitive damages.

Appellees make much of the truck’s heaviness (75,000 pounds) and the fact that it was carrying a flammable substance. These facts in and of themselves do not show want of care in the context of the truck driver’s undisputed actions and the facts that he was not speeding and the truck was properly loaded. Appellees also point to the truck driver’s shifting of gears, acceleration, and attempting to pass Eusery’s car, as supporting a determination of an entire want of care by the trucker. However, the undisputed evidence was that such conduct was at first in the ordinary course of driving and then done as evasive maneuvering to avoid collision.

While there may have been evidence from which the jury could find negligence, there was no evidence of an entire want of care on the part of the truck driver which would raise the presumption of a conscious indifference to consequences. See Currie v. Haney, 183 Ga. App. 506 (359 SE2d 350) (1987); Rosser v. Atlanta Coca-Cola Bottling Co., 162 Ga. App. 503, 504 (1) (291 SE2d 109) (1982), rev’d on other grounds 250 Ga. 52 (295 SE2d 827) (1982); Gordon v. Ogden, 154 Ga. App. 641 (1) (269 SE2d 499) (1980); Mills v. Mangum, 107 Ga. App. 614, 617 (131 SE2d 67) (1963); Co-op Cab Co. v. Arnold, 106 Ga. App. 160, 163 (2) (126 SE2d 689) (1962). Compare Harrison v. S & B Trucking, 179 Ga. App. 291 (1) (346 SE2d 101) (1986); Moore v. Thompson, 255 Ga. 236 (336 SE2d 749) (1985); Battle v. Kilcrease, 54 Ga. App. 808 (189 SE 573) (1936). Therefore, the trial court erred in refusing to direct a verdict in favor of defendant Petrolane on the issue of punitive damages.

2. As a result, the trial court erred in instructing the jury on the issue of punitive damages. Substantively correct or not, “[a] charge which is not authorized by the evidence and which injects issues into the case which are not made by the pleadings or evidence is presumed to be harmful to the losing party. [Cit.]” Avant Trucking Co. v. Stallion, 159 Ga. App. 198, 201 (2) (283 SE2d 7) (1981). “Instructions not warranted by the evidence are cause for new trial unless it is apparent that the jury could not have been misled thereby. [Cits.]” Harden v. Drost, 156 Ga. App. 363, 366 (4) (274 SE2d 748) (1980).

Such does not appear. The size of the verdict ($152,300, plus $15,000) in the context of plaintiff’s damages evidence does not preclude the conclusion that the jury awarded punitive damages. Even if, as appellees counter, there was evidence of compensatory damage alone to support the amount of the award to Mrs. Eusery, which we do not decide, the jury was not obligated to award all actual damage that the evidence might have authorized. That evidence, when compared with the verdict, does not lead inexorably to the conclusion that only compensatory damages were awarded. Compare non-precedential West Ga. Pulpwood &c. Co. v. Stephens, 128 Ga. App. 864, 869 (3) (198 SE2d 420) (1973), in which punitive damages were authorized. There the challenge was that the general verdict did not show that the jury found any amount for actual damages on which to base the punitive award.

Decided November 20, 1989

Rehearing denied December 12, 1989

Love & Willingham, Allen S. Willingham, Robert P. Monyak, for appellant.

Remler, Catts & Koski, Robert H. Benfield, Jr., for appellees.

Inasmuch as it cannot be determined as a matter of law that the verdict did not include unauthorized punitive damages, the judgment cannot stand. A new trial must be had on the claims properly remaining in the case.

3. Appellant did not waive its right to raise what is now successfully appealed because it did not request that the verdict form specify separate awards for compensatory and punitive damages.

The court gave counsel for the parties copies of the verdict form it intended to use and, pursuant to questioning of the form by plaintiff’s counsel, stated that it would not separate punitive damages for purposes of the verdict form as it was up to the jury to determine the damages and total them.

In any event, appellant’s objection is not to the form of the verdict, per se, but rather the illegal award of punitive damages which is reviewable under the circumstances. See Chrysler Corp. v. Marinari, 177 Ga. App. 304, 306 (1) (339 SE2d 343) (1985) (non-precedential); Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 276 (10) (329 SE2d 900) (1985), cert. denied 254 Ga. 349 (331 SE2d 879) (1985).

Judgment reversed.

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


author: Birdsong, Judge.

text:
    A89A1651.
    TRAVELERS INSURANCE COMPANY v. PROGRESSIVE PREFERRED INSURANCE COMPANY.
    (389 SE2d 370)
   Birdsong, Judge.

Kathryn Ann Wallis, an unlicensed driver, was operating her mother Hilda Wallis’ vehicle, when she collided with a vehicle driven by Sheila McDonnell. Hilda Wallis is an insured of Progressive Preferred Insurance Company (Progressive), under a policy containing an “unlicensed driver exclusion.” Sheila McDonnell maintains uninsured motorist coverage with The Travelers Insurance Company (Travelers). This declaratory action was filed by Travelers against Progressive to have declared unenforceable the unlicensed driver exclusion in Progressive’s policy coverage of Hilda Wallis, pursuant to the principles laid out in Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335 (329 SE2d 136).

Travelers appeals the declaratory judgment upholding the unlicensed driver exclusion in Progressive’s insurance contract. Held:

In Neese, the Supreme Court held unenforceable, as a matter of public policy, an insurance provision excluding coverage while an insured is “attempting to avoid apprehension or arrest.” The court analyzed the issue according to the public’s competing identifiable interests in the matter, which the court calculated in that case as being “at least threefold: (1) as insureds, to limit the insurer’s risks and thereby keep automobile insurance premiums as low as possible; (2) as members of the public in general to improve safety on the highways; and (3) as accident victims, to have access to insurance funds to satisfy their judgments.” Id. at p. 341.

Without belaboring the matter, we find it obvious, even self-evident, that the first two named criteria justify upholding the unlicensed driver’s exclusion in Progressive’s coverage of Hilda Wallis. There can be no genuine dispute that the discouragement of insureds against allowing unlicensed drivers to operate insured vehicles both limits the insurer’s risks and thereby keeps premiums low, and improves safety on the highways.

The third criterion is the one at issue in this case. Travelers contends the trial court should have analyzed the question of the victim’s access to insurance funds as it affects the general public, rather than how it applies to the particular victim. Travelers argues that while the victim in this case may have access to uninsured motorist insurance coverage, that will not always be the case.

We cannot follow Travelers’ analysis in this case, for, absent specific legislation on the matter, the public’s third identifiable interest as described in Neese cannot be separated from an inquiry as to whether a particular victim has access to insurance funds.

In distilling the identifiable public interests in these matters to a list of three, the court in Neese first considered, at the threshold, the competing interests of “(1) the insurance company, (2) its insureds, (3) the public, and those members of the public directly involved here, (4) the insured’s passengers and (5) the estate and widow of the deceased driver of the other vehicle.” (Emphasis supplied.) Id. p. 340. In identifying the three “interests of the public,” the Supreme Court obviously meant to include the victim in the individual case in an analysis of the criterion “as to accident victims, to have access to insurance funds to satisfy their judgments.” Id. at 341.

The Supreme Court in Neese specifically left “to a proper case the question of whether the existence of uninsured motorist coverage would affect the outcome in such a case.” Id. fn. 13. This is such a proper case. We conclude that since the victim clearly has access to such other funds, we cannot justify a ruling making Progressive liable for coverage of this unlicensed driver’s acts by voiding its unlicensed driver exclusion. For one thing, the clearly beneficent public policy favoring an unlicensed driver exclusion in general is so strong that it would be injudicious to void it in a case where its enforcement does not remove all access to insurance funds from the victim.

This conclusion is narrowly drawn. We leave to a proper case the specific determination whether the lack of accessibility to other insurance funds by a particular victim should justify invalidating an unlicensed driver exclusion.

We see no difficulty to future cases in examining this case on its own facts, for the Supreme Court did the same in Neese (p. 341) in specifically noting that “[i]n [holding the exclusion in that case to be unenforceable by ‘viewing this unnecessary accident from the standpoint of the deceased driver of the other vehicle involved’], we are aware that [the deceased] had no automobile insurance.”

As for the relative positions of the two insurers involved, this decision in potential benefits both. Travelers has been paid a premium and accepted the risk of coverage of McDonnell in a collision with an uninsured motorist. Under Progressive’s policy, Kathryn Ann Wallis was clearly an uninsured motorist. A ruling in favor of Travelers on this point, i.e., finding her to be “insured” despite the fact that she was an unlicensed driver, would, we are certain, be attacked by Travelers in the very next case where its own unlicensed driver exclusion is brought in question.

We see no reason in logic or public policy to call this exclusion unenforceable and the trial court did not err in finding likewise.

Judgment affirmed.

Been, P. J., and Benham, J., concur.

Decided November 21, 1989

Rehearing denied December 12, 1989

R. Chris Irwin & Associates, David L. Whitman, for appellant.

Bonnie C. Oliver, E. Wycliffe Orr, for appellee.


author: Carley, Chief Judge.

text:
    A89A1375.
    DEPARTMENT OF TRANSPORTATION v. ADAMS et al.
    (389 SE2d 343)
   Carley, Chief Judge.

In February of 1985, appellant-condemnor acquired a portion of property owned by appellee-condemnees and paid the amount of estimated just and adequate compensation into the registry of the court. The Condemnees appealed and the issue of just and adequate compensation was tried before a jury. Condemnor appeals from the judgment that was entered on the jury’s verdict.

1. On direct examination, the Condemnees’ expert testified that, in arriving at his opinion as to value, he had relied upon an April 1986 sale of property as a comparable sale. On cross-examination, the Condemnor sought to question the expert as to why he had relied upon the 1986 sale as comparable when the same property had been sold in May of 1985, only a few months after the relevant date of taking in this action. The trial court sustained the Condemnees’ objection to this line of cross-examination and this ruling is enumerated as error.

“It is error requiring the grant of a new trial to deny a party the right to cross-examine witnesses as to vital issues concerning which they have testified upon direct examination.” Harrison v. Regents &c. of Ga., 99 Ga. App. 762 (1) (109 SE2d 854) (1959). The Condemnor’s cross-examination was clearly calculated to impeach the direct testimony of the Condemnees’ expert that the 1986 sale was comparable and thereby to impeach the opinion he had given on direct examination as to the value of the Condemnees’ property. It follows that the trial court erred in disallowing the cross-examination. The cross-examination was “for the purpose, not of showing the sale price of property for its probative relationship to the value of the property in dispute but for the purpose of attacking the credibility of the witness. Under the broad rules obtaining in Georgia as to the right to a thorough and sifting cross-examination, including the right to show bias and prejudice on the part of the [opposing party’s] appraiser . . . , the testimony would have been admissible for this purpose, since any appraisal should be an honest attempt to arrive at market value. . . .” Smaha v. State Hwy. Dept., 114 Ga. App. 60, 62 (2) (150 SE2d 327) (1966). The value of the land “was to be determined by considering the value placed on it by the witnesses. The weight and credit of the witnesses’ testimony was pertinent and material, in fact, of paramount importance, in deciding the value of the property and the amount of the [C]ondemnees’ recovery.” Harrison v. Regents &c. of Ga., supra at 766 (1).

The Condemnees urge that the error was harmless because the jury returned a verdict in an amount which was less than the opinion given by their expert. There is authority for this proposition. See Smaha v. State Hwy. Dept., supra at 62-63 (2). Upon reconsideration, however, we now find that the Smaha “harmless error” analysis is incorrect. When the error is in failing to allow a witness to be impeached, it is illogical to use his unimpeached testimony as the benchmark for determining harm. Had the expert been impeached, the jury would have been authorized to discount the entirety of his testimony. Had the expert not been impeached, the jury would have been authorized to consider his testimony along with the other evidence in the case. Accordingly, absent impeachment, the jury in Smaha and the present case may well have accepted the expert’s opinion testimony as to value, but reduced the amount of compensation based upon the other evidence which was adduced. If, on the other hand, the jury in Smaha and in the present case had entirely discounted the impeached expert’s testimony, then his opinion as to value would not have been a factor whatsoever in the verdict. Although the verdict may have been lower than the expert’s opinion as to value, it cannot be said with any certainty that the verdict would not have been even lower had he been impeached and his testimony been totally eliminated from consideration. If the verdict could have been even lower had the expert been impeached and his testimony totally discounted, then the error in failing to allow him to be impeached is hardly harmless to the Condemnor.

The determination of value and of whether an expert’s opinion as to value should be accepted are questions for the jury. When the determination of value may have been based upon the testimony of an expert whom a party was erroneously precluded from impeaching, an appellate court should not second guess the fact-finding process, but should reverse and remand for a new trial wherein the determination of value is reached by. a jury that is properly allowed to resolve the credibility of the witnesses. Accordingly, the Smaha “harmless error” analysis is hereby overruled and the present case is reversed for the erroneous failure to allow the Condemnor to impeach the Condemnees’ expert.

2. The trial court gave the jury an instruction on the cost to cure. See generally D’Youville Recreational Assn. v. DeKalb County, 181 Ga. App. 347, 348 (2) (352 SE2d 181) (1986). The Condemnor enumerates the giving of this charge as error.

Decided November 6, 1989

Rehearing denied December 13, 1989

Reinhart & Whitley, Glenn Whitley, for appellant.

Sims, Fleming & Swan, John S. Sims, Jr., W. Edward Meeks, Jr., for appellees.

The sole contention is that the evidence did not authorize a charge on cost to cure. Our review of the evidence shows that, as against this contention, the charge was not erroneously given. However, insofar as the case must be reversed for the reason discussed in Division 1, we would point out that, in the event a charge on cost to cure should be given in the retrial, it would be preferable to specify that the cost to cure is not a separate element of recoverable damages, but is merely a factor to be considered in determining the amount of recoverable consequential damages. “The measure of damages in [this case] is the actual diminution in the market value of the land. ... In ascertaining whether there has been a diminution in the market value, however, facts which may show that the value has actually decreased, such as that certain changes and expenditures are necessary to bring it to its former condition, although they would not authorize a recovery of the cost of such changes as independent items of special damages, are admissible as throwing light upon the general question of diminution in market value, and are always admitted for this purpose. The fact that a change in the grade of a street has left a lot considerably below the level of the street and that the expenditure of a certain amount would be necessary to restore it to a level with the street, would not authorize a recovery of that amount as specific damages, but might very properly be considered as showing that the lot was thereby rendered less salable than before, and that its market value had decreased.” (Emphasis supplied.) City Council of Augusta v. Schrameck, 96 Ga. 426, 427-28 (1) (23 SE 400) (1895).

Judgment reversed.

Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Pope and Benham, JJ., concur. Sognier and Beasley, JJ., concur in judgment only.