text:
    A90A2268.
    BROWN v. CARR.
    (402 SE2d 296)
   Banke, Presiding Judge.

The appellant, acting in his capacity as administrator of the estate of Freddie Lee Brown, filed a petition in probate court to determine the identity of the decendent’s heirs. He brings this appeal from a judgment entered by the probate court finding that the appellee, Ola Carr, was the decedent’s common-law wife at the time of his death and was thus entitled to inherit from his estate.

There was evidence that the decedent had begun cohabiting with the appellee in her rented home in 1978 but that he was legally married at that time to Mary Lee Brown. However, that marriage terminated in divorce in February of 1982; and the following September, the decedent and the appellee moved into a house which the decedent had purchased. The couple continued to live there, pooling their earnings to pay their living expenses, until his death on July 12, 1989.

The appellee testified that she and the decedent were planning to have a marriage ceremony in August of 1989, the month after he died. However, she further testified that she had “always considered [her]self married to [the decedent]” and that she knew “a lot of people were going to be shocked [by the planned marriage ceremony], because a lot of people considered us as being married. ...” Three of the couple’s neighbors testified that the decedent had introduced the appellee to them as his wife after moving into the neighborhood and that they had assumed from this and from the couple’s living arrangements that they were married.

The probate court found that the decedent had the legal capacity to marry from February 4, 1982, until his death on July 12, 1989; that he and the appellee had lived together during that entire period; that he had introduced her to various neighbors as his wife; that these neighbors had considered them to be husband and wife; that the couple had pooled their earnings to pay their living expenses; that the decedent had named the appellee as his life insurance beneficiary; and that the appellee had paid all of the decedent’s funeral expenses. Based on these findings, the court concluded that a common-law marriage relationship had existed between the couple at the time of the decedent’s death. Held:

The essential elements of a marriage are: “(1) Parties able to contract; (2) An actual contract; and (3) Consummation according to law.” OCGA § 19-3-1. These requirements must be satisfied simultaneously in order for a marriage to exist. See Brown v. Brown, 234 Ga. 300, 301 (215 SE2d 671) (1975). See also Edwards v. Edwards, 188 Ga. App. 821-822 (1) (374 SE2d 791) (1988). “ ‘If [a] prior marriage or other impediment is shown to have been dissolved after a second common law “marriage” by cohabitation was initiated, the party asserting the validity of the second marriage must overcome the presumption that “cohabitation illicit in its inception is presumed to continue throughout the period of cohabitation.” [Cit.] This presumption can be overcome by introducing direct or circumstantial evidence showing the existence of all essentials to a valid marriage, including cohabitation after removal of the impediment. [Cits.]’ ” (Emphasis supplied.) Scott v. Jefferson, 174 Ga. App. 651, 653 (2) (331 SE2d 1) (1985).

“[I]f after the disability has been removed the cohabitation is continued and the parties hold themselves out as man and wife, a new and valid agreement of marriage will be presumed to have been entered upon, in the absence of anything appearing to the contrary.” Carr v. Walker, 205 Ga. 1, 9 (52 SE2d 426) (1949). “[Although] an agreement to marry in the future is not sufficient. . . [the] desire for a ceremonial marriage [does] not preclude the existence of a common law marriage.” Brown v. Brown, supra at 302-303. See also Bolden v. Southerland, 127 Ga. App. 71 (192 SE2d 718) (1972).

“The decision of the trial court as to the fact question of the existence vel non of a common-law marriage, should not be disturbed on appeal if there is any evidence to support its finding. [Cits.]” Conyers v. State, 249 Ga. 438, 441 (3) (291 SE2d 709) (1982). The probate court, sitting as the trier of fact in this case, was clearly authorized to determine from the evidence both that the decedent and the appellee had intended to live together as husband and wife subsequent to the decedent’s divorce from his first wife and that they actually had done so. The fact that they planned at some point in the future to secure a license and formalize their union with a ceremonial marriage did not negate the existence of a common-law marriage under these circumstances. See Bolden v. Southerland, supra. The judgment of the probate court is accordingly affirmed.

Decided February 1, 1991

Rehearing denied February 13, 1991.

Phyllis J. Holmen, Vicky 0. Kimbrell, Denise Marshall, Willie E. Lockette, for appellant.

Paula R. Taylor-Hanington, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A90A2306.
    BOOTH v. JOHNSON.
    (402 SE2d 523)
   Pope, Judge.

Sharilee B. Booth was involved in an automobile collision with Kim Marie Johnson. Johnson brought an action against Booth alleging the collision was caused by Booth’s negligence; Booth answered and counterclaimed, alleging the collision was caused by Johnson’s negligence. The record shows a pre-trial order was signed by both parties and the trial judge and filed on November 29, 1989. Trial of the case commenced on June 18, 1990.

Four days prior to trial, on June 14, Booth (“defendant”) filed a motion to amend the pre-trial order to add a witness. In an affidavit filed in support of the motion, defendant’s attorney affirmed that the witness was newly discovered and plaintiff’s attorney was provided the name, address and telephone number of the witness on June 13. The witness’ testimony was proffered at trial but the trial judge refused to allow the testimony to be presented to the jury because she had not been identified in the pre-trial order. Defendant appeals.

1. We must hold, as defendant asserts in her enumeration of error, that the trial court abused its discretion in refusing to permit defendant to amend the pre-trial order to add the witness. The pretrial order contained the following language: “Defendant reserves the right to call additional ‘may call’ witnesses, providing the names and addresses of same are provided to opposing counsel at least 72 hours prior to trial.” The pre-trial order was consented to by plaintiff’s counsel and entered by the trial judge. Thus, having complied with the condition of identifying the witness no less than 72 hours prior to trial, defendant had a pre-approved “right” to call the witness.

We cannot conclude as a matter of law that the exclusion of this witness’ testimony was harmless error. Although the witness did not see the collision, she testified she was located directly across from where the collision occurred and saw the position of defendant’s vehicle immediately before looking away and then hearing the impact. The location of defendant’s vehicle was the decisive issue in this case. The only eyewitnesses to the collision were the two parties and a passenger in defendant’s vehicle. While the testimony of the newly discovered witness was largely repetitive of the testimony of defendant’s passenger, the passenger was, at the time of the collision, defendant’s sister-in-law. Thus, the newly discovered witness was the only disinterested witness to the scene of the collision and neither we nor the trial judge can guess what weight the jury would have placed on her testimony.

Decided January 25, 1991

Rehearing denied February 13, 1991

Diane Q. House, for appellant.

Dennis & Corry, John K. Fitzgerald, Irwin, Bladen, Baker & Russell, Thurbert E. Baker, Freeman & Hawkins, Warner S. Fox, for appellee.

2. We conclude the trial judge did not abuse her discretion in ruling the defendant could not present to the jury a videotape of an accident reconstruction experiment conducted by her expert witness because the videotape was neither listed as evidence in the pre-trial order nor revealed to plaintiff’s attorney through the discovery process prior to trial. We note, however, that because our ruling in Division 1 of this opinion requires the case to be retried, defendant now has the opportunity to make the videotape available to plaintiff and to bring a motion to amend the pre-trial order to add it to defendant’s evidence list.

Judgment reversed.

Beasley and Andrews, JJ., concur.


author: Birdsong, Presiding Judge.

text:
    A90A1603.
    STRICKLAND v. THE STATE.
    (402 SE2d 532)
   Birdsong, Presiding Judge.

Curtis Strickland was convicted of aggravated assault and appeals.

The evidence, viewed in the light most favorable to the jury’s verdict, was as follows. An altercation occurred among a group of young people after a high school basketball game, culminating in the victim being shot seven times with an automatic rifle by a co-indictee, Kenneth Millsap. The victim testified that while he and Millsap were arguing, appellant said, “. . . man, shoot him.” Appellant gave a statement to the police in which he admitted that he twice told Millsap to “bust” the victim. Millsap pled guilty to aggravated assault prior to appellant’s trial. After the close of the evidence, defense counsel requested a charge on accident based on testimony that the automatic rifle could have fired when the victim attempted to grab it away from Millsap. The trial court agreed to charge on accident, but also allowed the State to reopen the evidence to admit Millsap’s guilty plea in rebuttal of the defense of accident, instructing the jury that the evidence of the guilty plea had no bearing on the guilt or innocence of the defendant and was “admitted only for the limited purpose of giving you additional information on the defense of accident.” Held:

1. Appellant complains that the trial court erred in failing to give his requested charge on the lesser included offense of simple assault. However, “ ‘[s] imple assault is not a lesser included offense of an aggravated assault in which a gun or a knife is alleged to have been used as a deadly weapon. [Cits.]’ [Cit.] We find appellant’s argument to be without merit.” Sexton v. State, 189 Ga. App. 331, 332-333 (3) (375 SE2d 661).

2. The trial court defined the offenses of aggravated assault and reckless conduct to the jury, following the charges on each crime with instructions on the burden of proof and reasonable doubt. The court then charged the jury that if they believed beyond a reasonable doubt that the defendant was guilty of aggravated assault it was their duty to convict him; that if they were not convinced beyond a reasonable doubt, or if there was a reasonable doubt in their minds as to his guilt of aggravated assault but they were convinced beyond a reasonable doubt that he was guilty of the lesser included offense of reckless conduct, then it was their duty to convict him of that offense; and that, “on the other hand, if you do not believe beyond a reasonable doubt, or if there is a reasonable doubt on your minds as to the guilt of the defendant, as to both of these offenses, then it would be your duty to give him the benefit of that doubt and to acquit him.”

Appellant contends that the quoted portion of the charge was an incorrect statement of the law which misled the jury to think they must have reasonable doubt as to both aggravated assault and reckless conduct in order to acquit him of either crime. Considering the charge as a whole, we do not agree. “ ‘ “Where a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence.” ’ [Cit.] We do not believe that the recharge in this case would mislead a jury of average intelligence, and we find no error.” Taylor v. State, 195 Ga. App. 314, 315 (1) (393 SE2d 690).

Decided February 13, 1991.

William I. Sykes, Jr., for appellant.

C. Andrew Fuller, District Attorney, Leonard C. Parks, Jr., Assistant District Attorney, for appellee.

3. The trial court recharged the jury, upon request, on the law of aggravated assault and reckless conduct and, over appellant’s objection, also charged that a gun is per se a deadly weapon. Appellant argues that this was prejudicial error. We find no grounds for reversal. This instruction was properly given to aid the jury in understanding the crime, as “a gun is a deadly weapon, and assault with a deadly weapon constitutes aggravated assault, a felony. OCGA § 16-5-21. . . .” Richardson v. State, 250 Ga. 506, 508 (3) (299 SE2d 715). See also Petouvis v. State, 165 Ga. App. 409 (301 SE2d 483).

4. Appellant contends that Millsap’s guilty plea was erroneously admitted because use of the guilty plea of a non-testifying co-indictee as substantive evidence against the defendant is prohibited by OCGA § 24-3-52. However, this court has rejected a rule of absolute inadmissibility and adopted instead a “balancing test” to allow such evidence in cases “ ‘when its use is limited to proper evidentiary purposes such as to impeach trial testimony or to reflect on a witness’ credibility. [Cit.]’ [Cit.]” Foster v. State, 178 Ga. App. 478, 479 (1) (343 SE2d 745). In the instant case, evidence of Millsap’s guilty plea was admitted only to impeach the testimony of some defense witnesses that the co-indictee could have shot the victim accidentally, rather than intentionally. It also corroborated the testimony of the victim that he had been intentionally shot. The trial court properly instructed the jury that this evidence was not admitted as proof of appellant’s guilt, but only to rebut the defense of accident. “The jury having been apprised that the evidence was not relevant as to appellant’s guilt but only as to the [issue of the defense of accident], there was no error. [Cit.]” Id. at 480-481. See also Greer v. State, 188 Ga. App. 808 (1) (374 SE2d 337).

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A90A1662.
    HUNNICUTT v. THE STATE.
    (402 SE2d 534)
   Beasley, Judge.

Hunnicutt was convicted of aggravated molestation of his natural child, B. H. OCGA § 16-6-4 (c). He appealed but the case was remanded for a ruling as to the child’s competency to testify, as required by the child hearsay statute, OCGA § 24-3-16 (In the Interest of K. T. B., 192 Ga. App. 132 (384 SE2d 231) (1989)). See Hunnicutt v. State, 194 Ga. App. 714 (391 SE2d 790) (1990). After a hearing, the trial court ruled B. H. competent to testify. Hunnicutt renews the appeal.

1. In his first enumeration of error, Hunnicutt claims that the trial court erred by determining B. H.’s competency as of the date of the competency hearing. This issue is critical to the determination of admissibility of the hearsay testimony given by Coleman and Hutchings as to statements the child made to them, because prerequisite to this hearsay was, under OCGA § 24-3-16 as it then applied, the availability of the child as a competent witness. See In the Interest of K. T. B., supra. The child was two years and ten months old at the time of the hearsay statements. She was four years and three months old at the time of trial. By the time of the competency hearing, her age was five years and three months.

Defendant first argues that competency should be fixed as of the date of the occurrence. There is no requirement that the trial court determine the child’s competency at the time the out-of-court statements were made. Fields v. State, 194 Ga. App. 149, 151 (2) (390 SE2d 71) (1990); Sosebee v. State, 190 Ga. App. 746, 749 (3) (380 SE2d 464) (1989); Newberry v. State, 184 Ga. App. 356, 358 (4) (361 SE2d 499) (1987). The purpose is to explore the child’s ability to understand the distinction between truth and non-truth as to fact and to be bound to relate only truth, as a witness. Competency relates to testimony, in the sense governed by OCGA § 24-9-5. If the child is competent to testify, then he or she is deemed “available” at trial in the context of OCGA § 24-3-16. Hunnicutt, supra, and cases cited therein. Whether the child spoke the truth when making the out-of-court statements relates to credibility of the out-of-court declaration, not competency of the child to testify as a sworn witness.

Defendant further asserts that because the hearing was held after the trial, the court erred in considering whether the child was competent at that time, a year after the trial, rather than ascertaining the child’s trial competency by, for one thing, reviewing the trial transcript.

The determination which the court was obligated to make on remand was whether the child had been “available” at trial, that is, whether she was competent as a witness when the court called her for examination by either party at the conclusion of the trial. See In the Interest of A. H, 192 Ga. App. 692 (385 SE2d 776) (1989), as an example of a similar remand, where competency at time of trial was also the unresolved issue.

At the competency hearing on remand, the trial court in this case, having read pertinent portions of the trial transcript, expressed its belief that there was no practical way to determine the past competency of the child. So it determined, after examining the child (who was then over five years of age), that she was competent as a witness at that time. But that is irrelevant. Her availability at trial was the issue, because if she was not competent to testify and defendant did not for that reason have the opportunity to examine her, as to the accusations she had made, then her hearsay statements were inadmissible, the child hearsay exception did not apply, and her statements to the child care assistant director and the DFACS worker were inadmissible.

There may be circumstances when the trial court can determine prior competency, such as when the trial transcript demonstrates the child’s understanding of the obligation to tell the truth. See Smith v. State, 247 Ga. 511 (277 SE2d 53) (1981). But, as apparently recognized by the trial court and shown by the trial transcript, this is not one of those cases. Thus a new trial is required, at which the child’s availability at the time of that trial will be the precursor to the hearsay statements. OCGA §§ 24-3-16 and 24-9-5 as they existed at the time of the alleged offense shall apply, the same as they did at the first trial, calling into play the procedure set out in Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987), and In the Interest of K. T. B., supra. Compare Bright v. State, 197 Ga. App. 784 (400 SE2d 18) (1990).

The reversal of the order finding competency requires reversal of the denial of a new trial.

2. Two enumerations of error address the general grounds. In one, Hunnicutt faults the trial court’s denial of his motion for a new trial on these grounds. In the other, he asserts that he was entitled to a directed verdict on this basis. The test for examining each on appeal is the same. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984).

The evidence is viewed in the light most favorable to the verdict, Thomas v. State, 175 Ga. App. 873, 874 (1) (334 SE2d 903) (1985). At trial, the assistant director of a day care center testified that the two- and-one-half-year-old child victim, B. H., told her that her father, Hunnicutt, had hurt her with his teeth and tongue. When the woman asked B. H. where her father had hurt her, she pointed to her vaginal area. The woman called the Department of Family and Children’s Services. A DFACS social services specialist spoke with B. H., who repeated her earlier description of sexual molestation, and when asked, insisted that only her father had done this to her.

Additionally, Hunnicutt’s former wife testified that their own daughter told her approximately five years before the trial that Hunnicutt had pinched her vagina and this was a secret she was not to tell anyone. Another witness testified that Hunnicutt had sexual intercourse with and sodomized her when she was 13 years old.

Decided February 13, 1991.

Denmark Groover, Jr., for appellant.

Joseph H. Briley, District Attorney, Fredric D. Bright, Assistant District Attorney, for appellee.

The evidence is sufficient to allow any rational trier of fact to find Hunnicutt guilty beyond a reasonable doubt of aggravated child molestation. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Fields, supra at 150 (1).

3. Having ruled on these issues, the ones raised by the remaining enumerations of error are rendered moot.

Judgment reversed.

Pope and Andrews, JJ., concur.


author: Cooper, Judge.

text:
    A90A1780.
    McGOWAN v. THE STATE.
    (402 SE2d 328)
   Cooper, Judge.

In a four-count indictment appellant was charged with the offenses of child molestation (Count I), cruelty to children (Counts II and III) and aggravated assault with intent to rape (Count IV). He was convicted by a jury on all counts and appeals from the denial of his motion for new trial.

All of the alleged incidents occurred while appellant was pastor of a church attended by each of the three victims. Counts I and II of the indictment involve the same victim, who testified that when she was 12 she was a passenger in a van operated by appellant to provide transportation to the elderly members of his congregation. After appellant took all of the elderly persons home, appellant asked her to sit in his lap while he drove her home. When the victim complied, appellant rubbed her inner thigh, asked her what color panties she had on, and then touched her vagina. The second victim testified that when she was 17, appellant asked her to accompany him while another woman drove him to his house to get his truck. When they arrived at appellant’s house, appellant asked the victim to come inside with him to get a coffeepot. As soon as she was inside and the woman who drove them there had pulled out of the driveway, appellant grabbed her and tried to kiss her, stopping only when appellant’s father-in-law appeared. As the victim drove appellant’s truck back to the church, appellant started rubbing her thigh and telling her she was pretty. The third victim, an adult at the time of the incident, testified that appellant appeared at her door one day when she was getting ready to take her four-year-old son swimming. Appellant asked her if there was anyone who could watch her son because he wanted to talk to her. When she told him no, he said to her: “I have made love to you a thousand times in my dreams, and its about time I did something about it.” Appellant then came toward her, put his hand between her legs, grabbed her vaginal area and tried to penetrate his fingers through her bathing suit. He grabbed her arms and pinned her against a table saying that he was not finished yet. He held her against the table so hard that she had fingermarks on her arms for almost a week. The victim threatened to call the police and appellant left warning her that he would be back.

1. In his first enumeration of error, appellant contends that the trial court erred in not conducting an evidentiary hearing to determine the admissibility of the State’s similar transaction evidence. Pursuant to Rule 31.3 of the Uniform Rules of Superior Court, the district attorney served upon defense counsel a notice of intent to introduce evidence of similar transactions. Prior to trial and over defense counsel’s objection, the trial judge allowed the district attorney to state in his place the nature of the testimony to be given by the victims of the similar transactions. “Uniform Superior Court Rule 31.3 ‘clearly grants the trial court the discretion as to the reception of evidence. There is no per se right to an evidentiary hearing, only to a hearing, nor any mandatory obligation to produce testimonial evidence.’ [Cit.] The statement in place as to what was expected to be shown revealed facts so as to constitute sufficient similarity, especially as regards sexual crimes, between the prior acts and the offense [s] on trial to permit the admission of such evidence. [Cit.]” Meier v. State, 190 Ga. App. 625 (3) (379 SE2d 588) (1989). Appellant’s argument that the actual testimony differed from the district attorney’s statement is also without merit. “Any eventual disparity between the stated expected evidence and the actual testimony has not been shown to have been known or anticipated by the State at the time of the hearing in the matter. In any event, we do not find such dramatic disparity as claimed by appellant so as to render the acts inadmissible for the stated purposes.” Meier v. State, supra.

2. In his second, third, fourth, and fifth enumerations of error, appellant contends that the trial court erred in admitting the State’s similar transaction evidence, which consisted of the testimony of four women. Each woman testified about a separate incident involving appellant while he was pastor of the church they were attending. All of the incidents occurred while the women were teenagers and each began with appellant initiating some form of physical contact with them, specifically rubbing their legs and thighs. Three of the “rubbing” incidents occurred while the women were riding in a motor vehicle with appellant. One of the women also testified that appellant asked her to accompany him to his house so that he could change his shirt and assured her that his wife would be there. The woman reluctantly went with appellant and while she was in the house, appellant pulled her into his bedroom, pushed her down on the bed and tried to get on top of her. “ ‘(T)here is no requirement that a previous offense be absolutely identical to the one being prosecuted so as to make it admissible[.]’ [Cit.] ‘Evidence of other similar crimes by a defendant is admissible if there is “sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. (Cits.)” (Cit.) Such evidence may be admitted to show state of mind or intent of a defendant. (Cit.) “In crimes involving sexual offenses, evidence of similar previous transactions is admissible ‘to show the lustful disposition of the defendant and to corroborate the testimony of the victim as to the act charged.’ (Cits.)” (Cit.)’ [Cit.]” Meier v. State, supra at 626. We conclude that the prior acts were sufficiently similar to be admissible.

3. Appellant enumerates as error the trial court’s denial of his motion for a mistrial. Prior to trial the judge ruled that any custodial statement made by appellant after he requested an attorney could be used only for impeachment purposes. Appellant’s counsel moved for a mistrial after the trial judge ruled that the district attorney was using the statement for purposes other than impeachment. The trial judge, finding that there had been no harm to appellant, overruled the motion for mistrial and gave curative instructions to the jury, after which appellant’s counsel did not renew his motion for a mistrial. “ ‘If a motion for a mistrial is overruled but corrective instructions are given by the court and thereafter counsel fails to request further instructions or renews his motion for a mistrial, the overruling of the motion is not regarded as error. [Cits.]’ ” Harris v. State, 190 Ga. App. 343 (2c) (378 SE2d 912) (1989). Therefore, appellant’s sixth enumeration of error has not been preserved for appellate review.

4. In his final enumeration of error, appellant contends that the trial court erred in refusing to charge the jury on simple battery, a lesser included offense of aggravated assault. Appellant maintained at trial, contrary to the testimony of the third victim, that he never went to her home and that he did not assault her. The testimony of the third victim was sufficient to authorize a rational trier of fact to find appellant guilty of aggravated assault with intent to rape, and “[s]ince [appellant] maintained at trial that he was not present and was in no way involved in the transaction, he was not entitled also to defend on the theory that'he was present but participated in a less serious offense. [Cits.]” Mason v. State, 175 Ga. App. 497 (2) (333 SE2d 694) (1985).

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.

Decided February 13, 1991.

Jimmy D. Berry, Mitchell D. Durham, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Bruce D. Hornbuckle, Nancy I. Jordan, Assistant District Attorneys, for appellee.


text:
    A90A1895.
    CONTINENTAL BAKING COMPANY et al. v. BROCK.
    (402 SE2d 331)
   Beasley, Judge.

On February 21, 1987 claimant Brock slipped and fell while working for Continental Baking Company. She was treated for injury to her lower back and was out of work from the date of the fall through June 16, 1987. During this time she received temporary total disability benefits.

In April 1988, Brock experienced problems with her right knee. On April 19 she sought medical treatment and missed work for approximately ten days. She returned to work but ceased work around May 17 because of the knee problems. On June 3, Brock underwent arthroscopic surgery. Her knee did not improve and she underwent a second surgery on September 9, after which it did improve.

Shortly after leaving work because of her knee problem, Brock filed a claim for benefits for that condition for the period beginning May 17, 1988, alleging as the operative accident date, the date of her fall on February 21, 1987. The employer controverted the claim.

After a hearing to determine all Title 34, Ch. 9 issues, the ALJ found that the overwhelming weight of medical evidence revealed that Brock had been suffering from arthritis in both knees for some years prior to the work-related injury resulting from her fall and that Brock had suffered an injury to her right knee in an automobile accident in 1973. The ALJ concluded in an award dated January 27, 1989, that based on all of the medical evidence, Brock did not suffer a work-related injury to her right knee as a result of the February 21, 1987, fall. Brock appealed the denial of benefits to the Board and returned to work with Continental on February 11, 1989. She had been out of work continuously from May 17, 1988.

On April 13, 1989, Brock lodged another claim for benefits with the Board, this time alleging an accident date of April 19, 1988, the day she sought medical treatment and left work for ten days. On May 8, the Board issued its award from the January 27 denial of benefits, adopting the ALJ’s denial and additionally finding that the 1987 incident had not aggravated Brock’s preexisting knee condition. No further appeal was taken.

Prompted by the April 13 claim, the Board issued a hearing notice on May 12 to determine all “O.C.G.A. § 34-9 issues” regarding Brock’s alleged accident date of April 19, 1988. The claim was assigned to the same ALJ who had denied benefits. In a deposition taken on August 14, 1989, Brock admitted that in her second claim she sought the same benefits previously denied.

Continental and its insurer filed with the Board a “motion to dismiss or for summary judgment” as to Brock’s second claim, asserting that res judicata and collateral estoppel barred the claim because the same benefits for the same disability period were involved. The ALJ granted the motion.

Brock appealed to the Board, which vacated the ALJ’s order and remanded Brock’s claim for a hearing and determination on the merits. It concluded that it had no jurisdiction to consider the employer/ insurer’s motion inasmuch as OCGA §§ 9-11-12 (b) (6); 9-11-41, and 9-11-56 had not been specifically incorporated into the workers’ compensation law. The superior court upheld the Board’s ruling on the theory that although the principles of res judicata and collateral estoppel applied to Board awards, the Civil Practice Act did not apply and there was no provision in the Workers’ Compensation Act for summary adjudication of claims.

Although the employer/insurer denominated its motion as one to dismiss or for summary judgment, the gist of it was that claimant was estopped from relitigating issues which were res judicata. The question is not whether those portions of the Civil Practice Act relating to summary judgment and dismissal are applicable to the Workers’ Compensation Act, but rather whether or not an ALJ can summarily dispose of a claim for benefits when the underlying issues between the same parties have already been heard and determined.

The legislature intended that processes and procedures under the Workers’ Compensation Act be as summary and simple as reasonably possible. OCGA § 34-9-60 (a). Administrative law judges serve as hearing officers and exercise judicial functions in implementing the Act. OCGA § 34-9-47. They have full authority to hear and determine all questions with respect to claims, OCGA § 34-9-100 (a), and specifically to rule upon or dispose of all motions, OCGA § 34-9-102 (c). Thus, an ALJ clearly has the authority to entertain a motion, such as the employer/insurer’s, which asserts that a claim is barred.

Res judicata and estoppel by judgment are applicable to workers’ compensation awards in the context of subsequent lawsuits on all questions of fact in matters in which the Board had jurisdiction. See McFadden Business Publications v. Guidry, 177 Ga. App. 885, 887 (1) (b) (341 SE2d 294) (1986); Greene v. Transport Ins. Co., 169 Ga. App. 504 (l)-505 (313 SE2d 761) (1984). Such doctrines are likewise appropriately applied within the workers’ compensation procedure itself. They would in some instances be not only appropriate but also necessary inasmuch as the Board has no authority to reopen a case to alter an award which had become final. See, e.g., Cook v. Jordan Bradley Supply Co., 195 Ga. App. 604 (394 SE2d 400) (1990); Burkhart v. Argonaut Ins. Co., 239 Ga. 608 (238 SE2d 400) (1977). Parties to workers’ compensation proceedings are to be afforded the opportunity to be heard and to present a claim or defense, Hart v. Owens-Illinois, 165 Ga. App. 681, 682 (302 SE2d 701) (1983), but not every situation requires a formal hearing or that evidence be adduced. See e.g., International Energy Structures v. Fennelly, 187 Ga. App. 416, 417 (1) (370 SE2d 523) (1988) and Johnson v. Atlanta Dairies Co-op., 172 Ga. App. 403 (323 SE2d 185) (1984) which involve Board discretion in making a lump sum award. Likewise here, where the ALJ had implicit authority to summarily dismiss Brock’s second claim upon determining that the issues had already been decided.

Decided February 13, 1991.

Smith, Shaw, Maddox, Davidson & Graham, Jo H. Stegall III, for appellants.

Mundy & Gammage, William D. Sparks, for appellee.

The superior court erred in upholding the Board’s vacating of the ALJ’s dismissal of the claim on procedural grounds. Therefore, the court’s judgment cannot stand.

Judgment reversed.

Pope and Andrews, JJ., concur.


author: Carley, Judge.

text:
    A90A2122.
    HESTER ENTERPRISES, INC. et al. v. NARVAIS et al.
    (402 SE2d 333)
   Carley, Judge.

Appellee-plaintiffs brought suit against appellant-defendants Hester Enterprises, Inc. (the Corporation) and Jerry Hester, the Corporation’s president and principal shareholder (Hester), seeking to recover for breach of a residential construction contract and for negligent construction. The case was tried before a jury and a verdict in favor of appellees and against both appellants was returned. Appellants appeal from the judgments entered by the trial court on the jury’s verdicts.

1. The underlying contract was between the Corporation and the appellees. At the close of the evidence, Hester moved for a directed verdict as to his individual liability on the ground that there was no evidence to authorize a piercing of the corporate veil. The denial of this motion is enumerated as error.

“ ‘While upon equitable principles the legal entity of a corporation may be disregarded,’ [cit.], great caution should be exercised by the court in doing so. [Cit.]” Amason v. Whitehead, 186 Ga. App. 320, 321 (367 SE2d 107) (1988). “All corporate bodies perforce must operate through individuals. The mere operation of corporate business does not render one personally liable for corporate acts. [Cit.] The corporate veil may be pierced where the parties themselves have disregarded the separateness of legal entities by commingling on an interchangeable or joint basis or confusing the otherwise separate properties, records or control. [Accordingly, the issue to be decided is whether there is] any evidence in this record to indicate that [Hester], in addition to acting as the principal operating officer of the [Corporation], also conducted his private and corporate business on an interchangeable or joint basis as if they were one. [Cit.]” Earnest v. Merck, 183 Ga. App. 271, 273 (358 SE2d 661) (1987).

There is evidence that, at the closing, Hester guaranteed performance of a new agreement whereby a central air conditioning system would be installed in appellees’ home. However, standing alone, such an assurance in no way implies that Hester was not merely guaranteeing that the Corporation, of which he was an officer, would perform this new agreement. “[T]here is no evidence short of speculation that [Hester] was acting in an individual capacity whereas in apposition, the records show [appellees were] aware by [all relevant] written documents that [Hester] was acting only in a representative capacity. [Cit.]” Earnest v. Merck, supra at 273. See also Western Broadcasting Co. of Columbus v. Barrington, 167 Ga. App. 301, 302-303 (306 SE2d 320) (1983); Menchio v. Rymer, 179 Ga. App. 852, 853 (1) (348 SE2d 76) (1986). Compare Bone Constr. Co. v. Lewis, 148 Ga. App. 61, 64 (4) (250 SE2d 851) (1978). Moreover, a corporate officer who does personally guarantee an obligation may be personally liable for the performance of that particular obligation, but such a personal guarantee does not render him personally liable on any and all corporate obligations. Any evidence that Hester personally guaranteed the installation of a central air conditioning system in appellees’ home would not be evidence that he disregarded the corporate entity in such a manner as to authorize his personal liability for the Corporation’s breach of contract or tort in any other regard.

No evidence whatsoever was introduced in this case to suggest that Hester commingled or confused the Corporation’s records, assets, or finances with his own. See Stewart Bros. v. Allen, 189 Ga. App. 816 (1) (377 SE2d 724) (1989); Menchio v. Rymer, supra at 853 (1). Instead, the record clearly shows that corporate funds were placed in the corporate checking account and that the funds drawn on that account were used only to pay corporate obligations, including payments to Hester in his corporate capacity. Compare Abbott Foods of Ga. v. Elberton Poultry Co., 173 Ga. App. 672 (327 SE2d 751) (1985) (where the president and principal shareholder of the corporation had not only paid himself ‘salary advances’ from the corporation’s checking account, but had used the corporation’s funds to purchase another company’s stock in his own name — with the proceeds going to the corporation’s only other shareholder — and to make loan and insurance payments on his personal automobile); Sheppard v. Tribble Heating & Air Conditioning, 163 Ga. App. 732 (1) (294 SE2d 572) (1982) (where the defendant had intermingled his personal finances with those of the corporation by depositing checks from the sale of corporate property to his personal bank account and by using the corporation’s assets to purchase land in his own name and to pay off personal loans). There is no evidence that, at the time of any payments to Hester, the corporation was insolvent or even that the corporate checking account was overdrawn. Compare Hyzer v. Hickman, 195 Ga. App. 213, 216 (1) (393 SE2d 79) (1990); Abbott Foods of Ga. v. Elberton Poultry Co., supra at 672. Likewise, the evidence raises no inference of undercapitalization. Compare Hyzer v. Hickman, supra at 215-16 (1). The fact that funds in the corporate account were not specifically expended in connection with the construction of appellees’ home may demonstrate a corporate breach of contract, but does not demonstrate that Hester is personally liable for that breach.

Principal “ownership of a corporation by one person or another corporation is not a factor, [cit.], and neither is the fact that the [principal] owner uses and controls it to promote his ends. [Cit.] . . . There is no evidence of fraud, no abuse of the corporate form, no commingling of assets and not even a showing of corporate insolvency at the time of [any cash withdrawal by Hester]. . . . The evidence was insufficient to warrant piercing the corporate veil and the verdict against [Hester] individually cannot stand. [Cits.]” Amason v. Whitehead, supra at 322. Accordingly, the judgment against Hester is reversed with direction that a judgment in his favor be entered in accordance with his erroneously denied motion for a directed verdict. OCGA § 9-11-50 (e).

Remaining enumerations of error are, therefore, moot as to appellant Hester and will be considered only as they relate to the judgment against the Corporation.

2. The denial of a motion for mistrial is enumerated as error. However, there was a failure to renew the motion after the trial court gave curative instructions and this constitutes a waiver. Hill v. Cochran, 258 Ga. 473, 475 (4) (371 SE2d 94) (1988).

3. The trial court’s giving of a charge on punitive damages is enumerated as error. The contention is that there was no evidence to support an award of such damages.

Decided February 13, 1991.

Barry W. Bishop, for appellants.

Lawrence E. Burke, for appellees.

Appellees were not authorized to recover punitive damages in connection with their breach of contract claim. “ ‘Generally, punitive damages are not recoverable for breach of contract, even though the breach may be in bad faith. OCGA § 13-6-10; [cit.].’ [Cit.]” Menchio v. Rymer, supra at 854 (3). There was no evidence to remove the instant case from this general rule. Moreover, appellees were not authorized to recover punitive damages in connection with their tort claim because the circumstances upon which they rely for such a recovery do not relate to the underlying tort of negligent construction. See OCGA § 51-12-5.1 (b); McNorrill v. Candler Gen. Hosp., 188 Ga. App. 636 (373 SE2d 780) (1988). Since there was no evidence to authorize a recovery of punitive damages in either contract or tort, it follows that the trial court erred in giving a charge on that element of damages.

4. The trial court’s giving of a charge on attorney’s fees and costs of litigation pursuant to OCGA § 13-6-11 is also enumerated as error. The contention is that there was no evidence of bad faith, stubborn litigiousness or unnecessary trouble and expense.

Even if the evidence shows no bona fide dispute as to the Corporation’s liability for breach of the construction contract, the evidence nevertheless shows a bona fide dispute as to the amount of damages appellees were authorized to recover. See Carpet Transport v. Dixie Truck Tire Co., 185 Ga. App. 181, 182 (1) (363 SE2d 840) (1987). Moreover, appellees do not point out, and we do not find, any evidence of bad faith. It follows that the trial court erred in giving the charge on the recoverability of attorney’s fees. “Inasmuch as it cannot be determined as a matter of law that the verdict did not include unauthorized [attorney’s fees], the judgment [against the Corporation] cannot stand. A new trial must be had on the claims properly remaining in the case.” Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860, 863 (2) (389 SE2d 355) (1989).

Judgments reversed.

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


text:
    A90A2126.
    BATTLE v. SANDY SPRINGS ASSOCIATES.
    (402 SE2d 336)
   Birdsong, Presiding Judge.

W. R. Battle, a/k/a Willis R. Battle d/b/a W. R. Battle Construction Company (“Battle”) appeals from the grant of summary judgment to Sandy Springs Associates (“SSA”) in a suit on two promissory notes. Battle contends that the lower court failed to consider evidence presented and that genuine issues remain for trial. Held:

The record shows SSA loaned money to Battle on at least three occasions and that the loans were secured by promissory notes executed by W. R. Battle individually and as the Battle Construction Company. The record also shows that SSA initially sued to collect on three notes, but by amendment to the complaint dismissed the allegations concerning the third note.

After Battle denied liability for the debts secured by the notes, SSA moved for summary judgment and supported the motion with Battle’s deposition and the affidavit of SSA’s president. The record shows that Battle’s deposition admitted liability on the notes in some amount and SSA’s affidavit with its attached documentation established the amount Battle owed on the notes. This evidence together with the notes which were a matter of record was sufficient to establish SSA’s right to recover against Battle. Hyman v. Horwitz, 148 Ga. App. 647,'648-649 (252 SE2d 74).

Battle responded to the motion and supported the response with his affidavit. Battle’s affidavit stated that he was not indebted to SSA because any amounts owing to SSA were satisfied. He further stated that SSA “received [payment] from Miller Paving Company thereby having been fully satisfied for any amounts owed to them,” and that SSA “received payment in full and still continues to seek monies . . . when any and all claims have been satisfied through the ‘Joint Payment Agreement.’ ” He now asserts that the trial court erred in granting summary judgment because his affidavit was sufficient to show genuine issues of material fact existed.

There is no error. Even affording Battle all the benefits our law grants to parties responding to motions for summary judgment (see OCGA § 9-11-56 (c); Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843)), Battle’s affidavit was insufficient to demonstrate the existence of genuine issues for trial. The part of Battle’s affidavit which asserts that he is not indebted to SSA in the amount specified is a mere conclusion or allegation of the ultimate fact which is insufficient to support a motion for summary judgment. ARA Transp. v. Barnes, 183 Ga. App. 424, 428 (359 SE2d 157); Johnson v. Crews, 165 Ga. App. 43, 44-45 (299 SE2d 99). Further, merely asserting that the debts have been “satisfied” adds nothing to the response since this also is a conclusion.

Decided February 13, 1991.

Smith, Currie & Hancock, John E. Menechino, Jr., Ronald G. Robey, for appellant.

Stokes, Lazarus & Carmichael, William K. Carmichael, Karl M. Terrell, for appellee.

Moreover, as the remaining averments in the affidavit contradict Battle’s deposition testimony admitting liability for the debts and he does not explain the contradiction, the “contradictory testimony rule” applies. See Gentile v. Miller &c., Inc., 257 Ga. 583 (361 SE2d 383); Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680). Application of this rule requires elimination of the favorable portions of the affidavit which conflict with Battle’s deposition testimony admitting liability on the notes. Prophecy Corp. v. Charles Rossignol, Inc., supra. Thus, considering the evidence as it stood after elimination of those parts of the affidavit, there was no evidence showing the existence of a genuine issue of material fact, and SSA was entitled to summary judgment. Hyman v. Horwitz, supra. In any event, Battle’s depositions also showed that the Miller Paving Company’s payments were for another note which was separate from the notes sued on. Accordingly, the trial court did not err by granting SSA’s motion for summary judgment.

Judgment affirmed.

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


text:
    A90A2159.
    LEE v. MIDDLETON LOGGING COMPANY et al.
    (402 SE2d 536)
   Cooper, Judge.

We granted this discretionary appeal to consider whether appellant’s injury arose out of and in the course of his employment. The Administrative Law Judge issued an award in favor of appellant, and on appeal, the Full Board reversed the ALJ’s award, finding that the injury was caused by appellant’s wilful misconduct and that the injury did not arise out of and in the course of appellant’s employment. The superior court affirmed and this appeal followed.

Appellant, who was employed full time with another employer, worked on weekends for appellee logging company washing and greasing trucks and performing minor mechanical tasks on the trucks. Testimony revealed that he did not work every Saturday or every Sunday. When appellant did work on Saturdays or Sundays, he would arrive at work early in the morning and continue working until the job was completed, at which time he would leave for the day. On the Friday evening prior to the day of the accident, appellant asked Mr.

Middleton, the owner of the logging company, if he would be needed to work the next day. Several witnesses who were present testified that Middleton specifically told appellant that he would not be needed to work the next day. Appellant told Middleton that he wanted to discuss some business with him and that he would come by the next day to do so. In the afternoon of the next day, appellant came by the workplace to show the owner a shotgun he had purchased that morning and to borrow some money from the owner. Appellant then went over to an area where an independent contractor working for appellee was working on some trailers. Appellant began climbing on the trailers in an attempt to assist the independent contractor with his work. The independent contractor testified that he instructed appellant not to do the work and to get off the trailer. Appellant then fell and injured his foot. Middleton was not aware of appellant’s actions and never instructed him to assist the independent contractor.

The full board found “that the evidence shows that the employee had been given explicit instructions by employer not to work on the day in question. The employee’s conduct in not arriving at the job site until 2:00 p.m. demonstrates that he only went to the job site for personal non-work-related reasons, therefore, his injury did not arise out of or during the course of his employment.” “A finding of fact by . . . the Full Board, ‘when supported by any evidence, (is) conclusive and binding. [Cit.] The superior, court is not authorized to substitute its judgment for that of the Full Board. [Cit.] The superior court is authorized to reverse an award of the Full Board only when there is plain error of fact or an error purely of law. [Cit.]’ ” Selfridge v. Morrison Cafeteria Co., 192 Ga. App. 469 (1) (385 SE2d 137) (1989). After a review of the entire record, we determine that there is ample evidence to support the full board’s factual findings. Further, “[a]n accident ‘arises in the course of the employment’ within the meaning of the compensation Act when it occurs within the period of employment at a place where the employee reasonably may be in the performance of his duties and while he is fulfilling his duties or engaged in doing something incidental thereto. [Cit.]” (Emphasis in original.) Barge v. City of College Park, 148 Ga. App. 480 (1) (251 SE2d 580) (1978). In the instant case, appellant’s injury did not occur during a period of employment or at a place where he would reasonably be in the performance of work-related duties because appellant was specifically instructed not to come in to work that day at all. Violating the admonitions of the independent contractor, appellant continued to perform tasks that he was not directly employed to do and which were not incidental to any act that he was employed to do. See Sanford v. Univ. of Ga. Bd. of Regents, 131 Ga. App. 858 (1) (207 SE2d 255) (1974). Appellant came by the workplace in the afternoon for non-work-related reasons, and we agree with the full board and the superior court that his injury did not arise in the course of his employment and is therefore not compensable. Our opinion renders it unnecessary for us to consider the other basis for the full board’s decision.

Decided February 13, 1991.

Edward E. Boshears, for appellant.

Lawson & Davis, G. Thomas Davis, William F. Mitchell, for appellees.

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


text:
    A90A2058.
    WHITEHEAD v. COFFEY.
    (402 SE2d 311)
    Decided February 4, 1991
    Rehearing denied February 14, 1991

      Wendell T. Dawson, Hudson & Montgomery, James E. Hudson, for appellant.
   Carley, Judge.

Appellant-plaintiff brought the instant wrongful death action, seeking to recover for the death of his son. The case was tried before a jury and a verdict in favor of appellee-defendant was returned. Appellant appeals from the judgment entered by the trial court on the jury’s verdict.

Over appellant’s objection, the trial court gave a charge on the defense of legal accident. In his sole enumeration of error, appellant urges that the evidence did not authorize the giving of such a charge. There was evidence that the vehicular collision which resulted in the death of appellant’s son was caused by appellee’s negligence. However, such a finding was not demanded. A review of the record shows that there was also evidence which would have authorized the jury to find that, notwithstanding appellee’s exercise of ordinary reasonable care, he lost control of his truck on the rain-slick highway, hydroplaned into the lane of on-coming traffic and struck the vehicle that was being operated by appellant’s son. Accordingly, the trial court did not err in giving a charge on the defense of legal accident. See generally Jump v. Benefield, 193 Ga. App. 612, 614 (2) (388 SE2d 864) (1989).

Judgment affirmed.

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

Carey, Deal, Walker & Jarrará, J. Nathan Deal, for appellee.


text:
    A90A1631.
    PRYOR v. THE STATE.
    (402 SE2d 338)
   Pope, Judge.

Defendant Kenneth Pryor was indicted for the murder of his brother, Donnell Pryor, and was convicted of the lesser offense of voluntary manslaughter. We affirm.

1. The evidence showed the victim died from a stab wound inflicted by defendant. Defendant’s theory of defense was justification and defendant’s attorney argued he acted in self-defense. Defendant’s first two enumerations of error challenge the sufficiency of the evidence to support the conviction,

The evidence showed defendant and his brother were engaged in an argument when the stabbing occurred. Conflicting evidence was presented concerning whether the victim threatened defendant. The evidence was undisputed, however, that defendant went to the kitchen for a knife before the victim picked up a chair and commenced thrusting the chair at defendant. One of the eyewitnesses described the victim as defending himself by thrusting the chair at defendant. Another eyewitness testified that while the victim was brandishing the chair he was backing away from the defendant. Whether defendant was justified, under the circumstances of the case, in using force against the victim is a question for the jury. Anderson v. State, 245 Ga. 619 (1) (266 SE2d 221) (1980). “When viewed in the light most favorable to the verdict, the evidence was sufficient to authorize any rational trior of fact to find proof of [defendant’s] guilt of voluntary manslaughter beyond a reasonable doubt. [See] Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Harper v. State, 182 Ga. App. 760, 761 (1) (357 SE2d 117) (1987).

2. Defendant argues the trial court erred in permitting the prosecutor to impeach a witness called by the State with evidence of prior inconsistent testimony without a proper showing of surprise. First, we note that no objection to this testimony was raised at trial and therefore this court may not consider the objection on appeal. See Cooper v. State, 188 Ga. App. 297 (3) (372 SE2d 679) (1988). Moreover, it is no longer necessary to show surprise in order for a party to impeach his own witness. Peterson v. State, 166 Ga. App. 719 (1) (305 SE2d 447) (1983). “If, at the time of the questioning, a party has knowledge of a prior statement by one of his witnesses which contradicts testimony that witness has just given, that party has been sufficiently entrapped so that he may impeach his witness by use of the prior inconsistent statement.” Davis v. State, 249 Ga. 309, 314 (3) (290 SE2d 273) (1982).

Decided February 14, 1991.

Charles C. Grile, for appellant.

Spencer Lawton, Jr., District Attorney, J. Clayton Culp, Assistant District Attorney, for appellee.

3. Finally, defendant argues the trial court erred in admitting into evidence a photograph of the victim’s body showing internal organs protruding from the stab wound. “A photograph which shows mutilation of a victim resulting from the crime against him may, however gruesome, have relevance to the trial of his alleged assailant.” Brown v. State, 250 Ga. 862, 867 (302 SE2d 347) (1983). Defendant posited a theory of self-defense in this case. In response to defendant’s objection to the photograph, the prosecuting attorney stated that the photograph was submitted to show location of the wound and the size and physical characteristics of the victim. Defendant argues the photograph was unnecessary to show location of the wound because defendant stipulated to the cause of death and location of the wound. We note, however, that the stipulation had not been entered into evidence at the time the photograph in question was tendered and admitted into evidence. Regardless, the admission of the photograph was not reversible error. See Whitaker v. State, 246 Ga. 163, 165 (6) (269 SE2d 436) (1980).

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: Banke, Presiding Judge.

text:
    A90A1695.
    VAUGHTERS v. DeKALB COUNTY BOARD OF TAX ASSESSORS.
    (402 SE2d 340)
   Banke, Presiding Judge.

The appellant filed a timely appeal from his 1989 property tax assessment, and the board of equalization upheld the valuation of his property made by the board of tax assessors. The appellant then filed a notice of appeal to superior court, using a form provided by the board of tax assessors. This form contained a space for disclosure of the reasons for the appeal and, in addition, listed two possible reasons which could simply be checked, to wit: “There is no uniformity of assessments in my neighborhood,” and “The assessed value is too HIGH.” However, neither of these reasons was checked, nor was any other explanation offered by the appellant as to the basis for his appeal. The board of tax assessors thereafter certified the case to the superior court; and in connection with the docketing of the case in that court, the appellant filed a form in which he stated that he was “[f]iling [the appeal] under Ga. Code No. 48-5-311 . . . regarding ‘taxability and value.’ ” However, the superior court subsequently granted the county’s motion to dismiss the appeal on the ground that the notice of appeal had failed to “state a proper ground [for appeal] pursuant to OCGA § 48-5-311 (f) (2).” This appeal followed. Held:

Decided February 14, 1991.

S. B. Vaughters, pro se.

Johnson & Montgomery, Albert S. Johnson, Lisa A. Foster, Michael K. Dennard, for appellee.

In DeKalb County Bd. of Tax Assessors v. Kendall, Inc., 164 Ga. App. 374, 375 (295 SE2d 345) (1982), this court held that a county board of tax assessors could not “first raise in the superior court a question concerning the sufficiency of the notice of appeal from the decision of the [b]oard of [equalization. . . .” Rather, the court held, ‘“[i]f the [b]oard.of [t]ax [assessors felt the notice of appeal was inadequate, it should have refused to certify the appeal until the notice was amended.’ ” Id. at 376, quoting from Ledbetter Trucks v. Floyd County Bd. of Tax Assessors, 240 Ga. 791, 792 (242 SE2d 596) (1978). Thus, pretermitting whether the appellant’s notice of appeal in this case was in violation of OCGA § 48-5-311 (f) (2) due to his failure to specify therein the grounds for his appeal, we hold that the superior court erred in granting the county’s motion to dismiss.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A90A1840.
    BROWN v. THE STATE.
    (402 SE2d 341)
   Pope, Judge.

Defendant Willie Lee Brown was indicted and convicted on two counts of selling cocaine to an undercover officer. We affirm.

1. Both counts of the indictment charge the defendant with selling cocaine to the undercover agent. The testimony at trial showed in both instances the undercover agent approached an informant and asked to purchase cocaine. The informant turned to defendant, who was immediately next to him, and the defendant handed the substance, which later tested to be cocaine, to the informant who passed the substance on to the agent. The agent handed the informant money and the informant passed it to defendant. In regard to one of the two sales, the agent testified he attempted to hand the money directly to defendant but the defendant refused to accept it and instructed the agent to give the money to the informant. Defendant argues he is entitled to a judgment of acquittal because of a fatal variance between the allegation in the indictments that he sold the cocaine to the agent and the proof that the agent actually purchased the cocaine from an informant.

Decided February 14, 1991.

Allen & Kelly, Roy B. Allen, Jr., for appellant.

David E. Perry, District Attorney, Howard B. Buchanan, Assis tant District Attorney, for appellee.

Any person who is a party to a crime may be convicted of the crime. OCGA § 16-2-20 (a). In regard to both counts, the evidence was sufficient to convict defendant as a party to the crime of selling cocaine to the agent.

2. For the reason set forth above, the trial court did not err in charging the jury that they would be authorized to convict the defendant if they believed beyond a reasonable doubt that defendant “did . . . sell cocaine. ...” Under the circumstances of this case, it was not necessary for the court to instruct the jury that they must find defendant made the sale directly to the agent.

3. We reject defendant’s argument that he is entitled to acquittal on the general grounds. The testimony of two undercover agents was sufficient to support the verdict. In regard to one of the counts, defendant argues he is entitled to acquittal because the testimony of the agents must be disregarded in its entirety pursuant to OCGA § 24-9-85 (b). The indictment alleged and the evidence showed one of the offenses occurred on December 3, 1988. One of the agents who testified against him on this count, however, signed an affidavit in support of an arrest warrant on January 25, 1990, stating the offenses occurred on December 3, 1989. The agents identified the affidavit at trial and, when asked if the information contained in it was accurate, both responded affirmatively. The agents were not specifically questioned about the accuracy of the date on the affidavit. Under the circumstances of this case it is obvious that the date on the affidavit in support of the arrest warrant is merely a typographical error. The discrepancy in no way shows the agents knowingly swore falsely so as to require their testimony to be disregarded pursuant to OCGA § 24-9-85 (b).

4. Defendant’s motion for leave to file additional enumerations of error is denied. “An enumeration of error may not be amended after the original filing time has expired.” Parham v. State, 166 Ga. App. 855, 856 (305 SE2d 599) (1983); accord Burke v. State, 153 Ga. App. 769 (7) (266 SE2d 549) (1980).

Judgment affirmed. Motion for leave to file additional enumerations of error denied.

Beasley and Andrews, JJ., concur.


text:
    A90A2121.
    ROBBINS v. LANIER.
    (402 SE2d 342)
   Banke, Presiding Judge.

The appellant filed this action against the appellee — identified in the complaint as the district attorney of Floyd County, Georgia, but assertedly named as a defendant in his individual rather than in his official capacity — seeking to recover damages for the latter’s alleged conduct in causing an arrest warrant to be issued against him charging him with terroristic threats and acts. The case is before us on appeal from the grant of the appellee’s motion to dismiss the complaint for failure to state a claim.

The warrant was sworn out by a county police detective, based on an incident which had occurred some eight months previously. According to the appellant’s complaint, this detective had investigated the incident immediately after its occurrence and had decided at that time not to bring any charges, but the appellee had thereafter intervened and “ordered” him to take out the warrant. In amendments to his complaint, the appellant alleged that the appellee had subsequently sought to intimidate the victim of the purported offense into testifying against him and had then protected the victim from criminal prosecution while he (the victim) threatened and intimidated the appellant’s witnesses. The appellant alleged that the appellee’s actions were motivated by a desire to harass and embarrass him because he had uncovered certain potentially embarrassing evidence regarding practices assertedly utilized by the appellee in securing evidence for drug prosecutions. In addition to damages, the appellant also sought an injunction prohibiting the appellee from prosecuting him on the charge set forth in the warrant.

At the hearing on the motion to dismiss, it was stipulated that the appellant had been indicted by a grand jury for the alleged conduct which had given rise to the warrant and that this indictment was still pending against him. The trial judge dismissed the claim for injunctive relief based on the principle that “[e]quity will take no part in the administration of the criminal law,” OCGA § 9-5-2; and the appellant does not take issue with this portion of the court’s ruling. The court dismissed the damage claims on the ground that the criminal proceeding had not terminated favorably to the appellant and on the additional ground that the district attorney was immune from civil liability “for the prosecutorial actions intimately associated with the judicial phase of criminal process.” Held:

1. The appellant contends that the trial court erred in ruling that he could not pursue the present action while the criminal charge on which the warrant was based remained pending, arguing that he “did not seek recovery for malicious arrest, but rather sought recovery on the legal theories of (1) an intrusion into [his] solitude and private affairs, (2) placing [him] in false light in the public eye, and (3) the wilful infliction of emotional distress by the [appellee] upon [him].” However, inasmuch as the alleged source of all these various injuries was the issuance of the warrant, the appellant’s underlying cause of action was clearly for false arrest or malicious prosecution. It follows that he had no right of action until the warrant was abandoned or dismissed or until the prosecution had otherwise terminated in his favor. See generally OCGA §§ 51-7-1 et seq.; 51-7-40 et seq.; Smith v. Embry, 103 Ga. App. 375 (4), 379-380 (119 SE2d 45) (1961); Mathews v. Murray, 101 Ga. App. 216 (1) (113 SE2d 232) (1960).

Decided February 14, 1991.

James A. Robbins, Jr., for appellant.

Michael J. Bowers, Attorney General, Harrison W. Kohler, Deputy Attorney General, Neal B. Childers, Assistant Attorney General, for appellee.

2. Although the appellant apparently hoped to avoid the defense of prosecutorial immunity by suing the appellee in his individual rather than his official capacity, his claim was clearly based on allegations that the appellee had misused the powers of his office. Pursuant to Art. VI, Sec. VIII, Par. I (e) of the Georgia Constitution of 1983, district attorneys have immunity from private actions “arising from the performance of their duties.” The rationale behind this immunity is that “ ‘[p]rosecutors, like judges, should be free to make decisions properly within the purview of their official duties without being influenced by the shadow of liability.’ ” Holsey v. Hind, 189 Ga. App. 656, 657 (377 SE2d 200) (1988). “ ‘Therefore, a district attorney is protected by the same immunity in civil cases that is applicable to judges, provided that his acts are within the scope of his jurisdiction.’ Smith v. Hancock, 150 Ga. App. 80, 81 (256 SE2d 627) (1979). (Emphasis supplied.) . . . The determining factor . . . appears to be whether the act or omission is ‘ “intimately associated with the judicial phase of the criminal process.” ’ [Cit.]” Id.

In our view, there is no question that a prosecutor’s decision to file formal criminal charges against an individual is an act intimately associated with the judicial phase of the criminal process. Accordingly, we hold that the trial court was also correct in its conclusion that this action is barred by the doctrine of prosecutorial immunity.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A90A1981.
    A90A1982.
    LAWSON v. THE STATE. TAYLOR v. THE STATE.
    (402 SE2d 344)
   Pope, Judge.

Co-defendants Gilbert Jerome Lawson and Franklin D. Roosevelt Taylor, Jr., were charged with separate offenses of distributing cocaine, tried jointly and both found guilty. Defendants raise identical enumerations of error on appeal.

1. We reject defendants’ argument that the evidence was insufficient to support their convictions. Both defendants presented an alibi defense which was refuted by evidence presented by the State. The undercover agent who purchased rock cocaine from defendants positively identified them at trial. “The direct testimony of the officer was sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Williams v. State, 197 Ga. App. 368 (398 SE2d 427) (1990).

2. We have reviewed the record and reject defendants’ argument that the State improperly referred to facts not in evidence in its closing argument to the jury.

3. Both the Georgia Supreme Court and this court have approved jury instructions defining reasonable doubt as a “doubt for which a specific reason can be given.” See Ranger v. State, 249 Ga. 315, 320 (5) (290 SE2d 63) (1982); Bennett v. State, 165 Ga. App. 600, 602 (302 SE2d 367) (1983). In the case now before us, the trial judge in his instructions described reasonable doubt as “doubt for which you can give your fellow jurors a reason therefor.” Defendants argue the instruction was reversible error because it improperly implies that reasonable doubt is a collective decision to be reached by the jury as a whole rather than an individual determination. Although we do not favor a definition which implies a juror must articulate his reason for doubt to his fellow jurors, we do not find the instruction given here rises to the level of reversible error.

4. We reject defendants’ argument that the trial court erred in failing to charge the jury explicitly that the conviction of one co-defendant did not necessarily require the conviction of the other. In examining whether the giving or not giving of a particular charge is reversible error, we are to consider the entire charge. Hilton v. State, 233 Ga. 11, 12 (2) (209 SE2d 606) (1974). We must also consider earlier instructions to the jury and the procedural circumstances of the case.

This case involves two separate special presentments, one for each defendant, clearly setting out the separate charges as to each. The two defendants were not linked by a conjunction in any way in the wording or form of the presentments. Each bore a separate verdict form, related only to that defendant. The jury returned separate verdicts, finding Taylor “guilty on both counts” of his two-count presentment and Lawson “guilty” of the one charge against him.

Decided February 15, 1991.

Larsen & Flanders, H. Gibbs Flanders, Jr., for appellants.

Ralph M. Walke, District Attorney, L. Craig Fraser, Assistant District Attorney, for appellee.

At the beginning of jury selection, the court advised prospective jurors they would be trying “two cases.” The court read each count, as to each separate defendant, to the jury. Each defendant testified on his own behalf.

The court opened the charge to the jury by referring to each separate charge against each defendant and informed the jury it would have the special presentments to aid in its deliberations. At the conclusion of the charge, the court directed the jury’s attention to the fact that there were two separate presentments. In regard to the form of the verdicts, the court charged as to each defendant singly, clearly indicating that two separate verdicts would be required. No objection was made concerning the omission now complained of, either following the charge or in the motions for new trial.

That the guilt or innocence of each defendant had to be considered independently was implicit in the charge as a whole, the pre-trial instructions given by the court and the procedural circumstances of the case. Moreover, the court explicitly explained that each charge was to be considered and decided on its own. The facts of this case are distinguishable from those cited by defendants (Lanzo v. State, 187 Ga. App. 616 (4) (371 SE2d 119) (1988) and Scott v. State, 182 Ga. App. 844 (1) (357 SE2d 297) (1987)) because in both those cases, in the instructions to the jury, the trial court repeatedly referred to the defendants plurally and in Lanzo the court referred to a single “verdict.”

Judgments affirmed.

Beasley and Andrews, JJ., concur.


author: Andrews, Judge.

text:
    A91A0148.
    REED v. ED TAYLOR CONSTRUCTION COMPANY et al.
    (402 SE2d 346)
   Andrews, Judge.

Reed appeals the grant of summary judgment to defendants Taylor Construction Company and McTyre Grading & Pipe Company, Inc., in his suit for personal injury, contending that the trial court’s grant of summary judgment to two of the seven defendants was improper.

Viewed in favor of Reed, the opponent of the summary judgment motion, OCGA § 9-11-56; Eiberger v. West, 247 Ga. 767, 769 (1) (281 SE2d 148) (1981), the evidence was that Reed was involved in a two-vehicle collision when he ran into the rear of a logging tractor-trailer.

The accident occurred on July 21, 1988, as Reed was traveling south on Six Flags Drive and the logging truck driven by Robinson was traveling in reverse in the same lane. Robinson was backing up and looking for the entrance to a construction job site for which defendant/appellee Taylor Construction Company was the general contractor. It was undisputed that the accident occurred in the paved portion of the road outside the boundaries of the construction site and that no warning signs were posted along the road to alert passing traffic to the off-road construction site.

As general contractor, Taylor’s work at the site included providing site utilities, paving, sidewalks and curbs. Taylor subcontracted certain of the grading and utility work to defendant/appellee McTyre Grading & Pipe. McTyre subcontracted out some work to a second company which subcontracted with a third company. A fourth subcontractor hired driver Robinson.

Although plaintiff Reed claimed that Taylor and McTyre were responsible for Robinson’s actions, here Reed has abandoned claims that Robinson is an agent or employee of Taylor or McTyre. The sole issue before us is the propriety of summary judgment on plaintiff’s claim that failure to properly warn the motoring public of the entrance to the construction site constituted negligence.

“In order ‘(t)o prevail on a motion for summary judgment (OCGA § 9-11-56), a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. (Cits.)’ Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981); [cit.]” Willis v. Allen, 188 Ga. App. 390, 391 (373 SE2d 79) (1988).

A defendant is entitled to summary judgment if he produces evidence conclusively establishing facts which negate one or more essential elements of the plaintiff’s action. Laite v. Baxter, 126 Ga. App. 743 (191 SE2d 531) (1972).

Here, summary judgment was granted due to Reed’s failure to establish any duty by appellees to warn the public of the entrance to the construction site.

The duty of an owner or occupier of land is to exercise ordinary care to keep the premises and the approaches to the premises safe. OCGA § 51-3-1; Todd v. F. W. Woolworth Co., 258 Ga. 194 (366 SE2d 674) (1988); Elmore of Embry Hills v. Porcher, 124 Ga. App. 418, 420 (183 SE2d 923) (1971); Scoggins v. Campbellton Plaza Corp., 114 Ga. App. 23 (1) (150 SE2d 179) (1966); Spindel v. Gulf Oil Corp., 100 Ga. App. 323 (1) (111 SE2d 160) (1959). In essence, Reed contends that the public road in front of the construction site was an unsafe approach because of the absence of warning signs.

“If the approach is a public way[, the occupier’s] duty under OCGA § 51-3-1 is to exercise due care within the confines of his right in the public way. [The occupier’s right] in the public way may be quite limited but nonetheless exist[s].” Todd, supra at 196. In other words, the duty over a public way is circumscribed by the rights in it the occupier has exercised.

In this case, there was no evidence that Taylor or McTyre exerted any control over the public road in front of the construction site. See Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 521 (317 SE2d 853) (1984). Further, despite Reed’s affidavit regarding the traffic flow in the area, there was no evidence that Taylor or McTyre used the road in a manner different from the motoring public. In short, there was no evidence that any unusual circumstances existed on the public road which necessitated intervention by Taylor or McTyre.

In this case, the elements on which to base a duty predicated on the contractors’ rights in, or control over, the public road are lacking. It is clear that the public road did not constitute an approach to the construction site for which the contractors had the responsibility of erecting signs.

It is a contractor’s duty to protect the public from dangerous conditions in the highway resulting from his work. Marshall u. Hugh Steele, Inc., 122 Ga. App. 114, 115 (176 SE2d 554) (1970), citing Schwarcz v. Charlton County, 211 Ga. 923, 930 (89 SE2d 881) (1955). Despite appellant’s arguments to the contrary, there is no evidence that the absence of an entrance marking to the construction site was a dangerous condition. Cummings v. Grubb, 184 Ga. App. 872 (363 SE2d 167) (1987); compare Hardy v. Brooks, 103 Ga. App. 124, 125 (118 SE2d 492) (1961).

Decided February 15, 1991.

William R. Hurst, for appellant.

Long, Weinberg, Ansley & Wheeler, Arnold E. Gardner, Stephanie F. Goff, Lokey & Bowden, Peter K. Kintz, R. Patrick White, Michael H. Saul, Russell T. Ross, for appellees.

The absence of any duty is not altered by the contract between Taylor and the project owner, as Reed argues, since the document simply reaffirms the principles stated above and supports our decision that the contractors’ responsibility was limited to the construction site. See Baker v. Reynolds Trucking Co., supra, n. 2; Shepherd Constr. Co. v. Watson, 115 Ga. App. 224 (3) (154 SE2d 388) (1967); Marshall v. Hugh Steele, Inc., supra; Murdock v. Ledbetter-Johnson Co., supra, n. 2.

In conclusion, we note that neither Taylor nor McTyre had a duty to warn against obvious or patent conditions which could be observed and avoided by the exercise of ordinary care. Rich’s, Inc. v. Waters, 129 Ga. App. 305 (199 SE2d 623) (1973); Emory Univ. v. Duncan, 182 Ga. App. 326 (355 SE2d 446) (1987). Here, it was undisputed that Reed was familiar with the accident area and was aware that construction was going to begin.

Robinson was traveling on a public road and missed the entrance to the construction site. He began traveling in reverse down the road and collided with Reed. Neither Reed nor Robinson ever entered onto property which was under appellees’ control and the record contains no evidence that the construction site made the road in front of it dangerous. In the absence of a duty breached, there can be no negligence. Georgia Properties Co. v. Nisbet, 42 Ga. App. 338 (156 SE 298) (1930).

The trial court did not err in granting summary judgment to these defendants. Gray v. Gober, 185 Ga. App. 624, 627 (1) (365 SE2d 279) (1988).

Judgment affirmed.

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

       All of the subcontractors are defendants in the trial court.

       If the public road was unsafe because of the absence of signs, OCGA § 32-6-50 would control. That section provides that the Department of Transportation is responsible for placing and maintaining such traffic-control devices on completed roads as are necessary to regulate, warn or guide traffic. See Baker v. Reynolds Trucking Co., 181 Ga. App. 242 (351 SE2d 657) (1986); Murdock v. Ledbetter-Johnson Co., 105 Ga. App. 551 (125 SE2d 99) (1962). In fact, McTyre argues that the contractors would have been statutorily prohibited from erecting warning signs on a public road under OCGA § 32-6-51; see Ledbetter-Johnson Co. v. Thacker, 108 Ga. App. 300 (132 SE2d 838) (1963).

       Dangerous conditions on roadways typically have involved obstructions or excavations. Compare Clark v. Raymond J. Pitts, Inc., 151 Ga. App. 192 (259 SE2d 189) (1979).


text:
    A90A2030.
    BROWN et al. v. PROGRESSIVE PREFERRED INSURANCE COMPANY.
    (402 SE2d 303)
   Carley, Judge.

The relevant facts in this declaratory judgment action are as follows: Appellee-plaintiff issued to appellant-defendant Johnny Brown an automobile liability insurance policy which, by its terms, was to expire on February 23, 1988. With regard to renewal, the policy provided that Brown would be required to “pay the renewal premium in advance. Your policy will expire and you will have no coverage if we do not receive the required payment by the renewal date.” In January of 1988, appellee mailed to Brown a renewal notice which stated that the policy would “expire on 02/23/88. Payment must reach [appellee] before 02/23/88 to keep your coverage in continuous effect through 08/23/88.” Brown received the renewal notice and mailed to appellee a check in the amount of the specified premium. However, appellee did not receive Brown’s check by the February 23, 1988 expiration date. Nevertheless, appellee did not return the check to Brown. Instead appellee mailed to him a new declarations page indicating a six-month extension of coverage commencing on February 25, 1988. After this new declarations page had been mailed to Brown, his check was dishonored for insufficient funds. Although Brown was notified of this dishonor, the check was thereafter resubmitted for payment. On March 17, 1988, Brown’s wife was involved in a motor vehicle collision with appellant-defendant Henry Hankey. On March 21, 1988, appellee received notice that Brown’s resubmitted check had again been dishonored for insufficient funds. Thereafter, appellee denied the existence of coverage for the collision and initiated the instant action seeking a declaratory judgment to that effect. The trial court granted appellee’s motion for summary judgment and appellants appeal.

The instant case does not relate to the existence of coverage under a renewal policy as defined in OCGA § 33-24-45 (b) (2). By its terms, Brown’s original policy had expired on February 23, 1988 and, upon subsequent receipt of Brown’s check, appellee did not thereafter purport to issue a retroactive six-month extension of coverage commencing on that date. Instead, appellee purported to issue a prospective extension of coverage commencing on February 25, 1988. This evidences appellee’s intent to issue a new policy. See State Farm Mut. Auto. Ins. Co. v. Moore, 104 Ga. App. 194 (121 SE2d 286) (1961). Compare Mayes v. Washington Nat. Ins. Co., 77 Ga. App. 638 (49 SE2d 123) (1948). Accordingly, the question to be decided is whether coverage under the new policy issued on February 25, 1988, was in effect on March 17,1988. A review of the record shows that, as of that date, the new policy had not been cancelled pursuant to the applicable statutory provisions of OCGA § 33-24-44 (d). It follows that the new policy was in effect on March 17, 1988, and that the trial court erred in granting summary judgment in favor of appellee. See American Intl. Life Ins. Co. v. Hartsfield, 147 Ga. App. 213 (248 SE2d 518) (1978).

Decided February 4, 1991

Rehearing denied February 18, 1991

A. Newell Nesmith, for appellants.

J. William Trunnell, Jr., Warren C. Grice, Jones, Cork & Miller, Howard J. Strickland, Jr., Anderson, Walker & Reichert, R. Harold McCard, Jr., Chambless, Higdon & Carson, Mary M. Katz, for appellee.

Judgment reversed.

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


author: Sognier, Chief Judge.

text:
    A90A2262.
    JORDAN v. SANTA FE ENGINEERING, INC. et al.
    (402 SE2d 304)
   Sognier, Chief Judge.

Vonceil Jordan brought suit against Santa Fe Engineering, Inc. (“Santa Fe”), The Waldinger Corporation, and Koch Industries, Inc. (“Koch”), to recover damages for the wrongful death of her husband, under theories of negligence and strict liability. A jury returned a verdict in favor of the defendants, and Jordan brings this appeal following the denial of her motion for a new trial.

Evidence adduced at trial showed that the U. S. Corps of Engineers contracted with an architectural firm for the design of a new hospital at Fort Stewart, Georgia. Following the approval of the architectural plans, Santa Fe was awarded the general contract for construction of the hospital. Waldinger was the mechanical subcontractor, and installed an acid neutralization sump, manufactured by Koch, at the hospital. The sump was necessary to neutralize and provide safe disposal for various acids and chemicals used in laboratories at the hospital which may be harmful if disposed of through normal channels.

The decedent, John Jordan, was employed by the hospital’s maintenance contractor, E. C. Corporation, as a shift supervisor, supervising a crew that cleaned the laboratory area. In early October 1984, the drainage system in the laboratory area leading to the tank became clogged and overflowed. The decedent had some contact with the overflowed material during the course of his duties, as did other E. C. employees, but E. C. employee Willie Johnson had primary responsibility for cleaning the area. On several days during and immediately following the decedent’s exposure to the overflow material and prior to his death, he exhibited increasingly severe signs of illness, including respiratory difficulties, gastrointestinal and renal problems, and neurological deficit and confusion.

During appellant’s case in chief, she presented the testimony of Dr. William Anderson, a medical doctor who was qualified as an expert in pathology. In response to a hypothetical question positing the above information as well as the fact that Johnson had not become ill, and that the decedent had been taking the drug Antabuse, Dr. Anderson testified that, in his opinion to a reasonable degree of medical certainty, based on the course of the signs exhibited by the decedent (as related primarily by appellant), and the many organs involved, “exposure to one or more toxic materials that were absorbed in his body, caused the damage.” The defendants presented the testimony of Dr. William McDonald, an expert with a Ph.D. degree in toxicology and pharmacology. Dr. McDonald opined, in contrast to the opinion of Dr. Anderson, that the decedent’s signs were consistent with “an Antabuse reaction on consumption of alcohol.”

1. Appellant contends the trial court erred by refusing to allow the testimony of Dr. Keith Mitchum, proffered by appellant in rebuttal. The transcript reveals that immediately preceding the commencement of the trial, appellees interposed an objection to the inclusion of Dr. Mitchum as a “may call” witness for appellant in the consolidated pretrial order signed and entered the day before, on the grounds that Dr. Mitchum had not been listed on the previous pretrial order (which had not been signed) and appellees had not had the opportunity to depose him; and that at the parties’ pretrial conference the trial court had verbally ordered that no witnesses could be added after a date certain, and appellant had added Dr. Mitchum after that date. Despite the assurances of appellant’s counsel that Dr. Mitchum would be called in rebuttal and only if necessary to respond to testimony of appellees’ experts, and that a week before trial appellees had been offered the opportunity to depose Dr. Mitchum, the trial court indicated that it was inclined not to allow the witness, but it would entertain the request again after hearing appellees’ evidence.

At the close of appellees’ evidence, when appellant again sought to call Dr. Mitchum in rebuttal, the trial court adhered to its earlier ruling. In her offer of proof, appellant indicated that Dr. Mitchum would have been qualified as a medical expert, and that he would have testified that he was familiar with Antabuse and its effects, and that in his opinion, based on the timing of the physical signs exhibited by the decedent before his death, the cause of death was not an Antabuse reaction, but rather exposure to toxic substances present in the overflowed material.

Although questions of the admission of rebuttal evidence lie wholly within the sound discretion of the trial court, see Hutto v. Shedd, 181 Ga. App. 654, 656 (1) (353 SE2d 596) (1987), such discretion is not unbounded. In Ambler v. Archer, 230 Ga. 281, 287-290 (1) (196 SE2d 858) (1973), the Supreme Court reversed the judgment below because the exclusion of testimony from appellant’s witnesses not listed in the pretrial order, which was entered after appellant’s counsel had failed to attend the pretrial conference, was deemed too harsh a sanction. Construction of a pretrial order so as to prevent a party from supporting his case by evidence where an amendment to the pretrial order is sought works a manifest injustice on the party, and fails to reflect the spirit of the Civil Practice Act, which is that cases be decided on their merits. Id. at 288. The injustice is even more apparent in the present case, where the record shows that the only pretrial order actually signed by all the parties includes the witness whose testimony was sought, and the testimony was sought to be admitted only in rebuttal. See generally Allstate Ins. Co. v. Reynolds, 138 Ga. App. 582, 587-588 (6) (227 SE2d 77) (1976). Pretermitting the question of whether Dr. Mitchum could have testified during appellant’s case in chief, the offer of proof shows that his testimony would have specifically rebutted Dr. McDonald’s testimony that the cause of death was a reaction to Antabuse. We cannot say that such testimony was merely cumulative of the testimony of Dr. Anderson, as urged by appellees, compare Klemme Cattle Co. v. Westwind Cattle Co., 156 Ga. App. 353, 354-355 (1) (274 SE2d 738) (1980), or that the absence of such rebuttal had no effect on the jury’s verdict. Accordingly, we must agree with appellant that the refusal to allow Dr. Mitchum to testify in rebuttal was an abuse of the trial court’s discretion. Ambler, supra.

2. Because a new trial must be held, we address appellant’s remaining contentions of error which deal with evidentiary matters and jury charges, and may recur.

(a) “ ‘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.)’ [Cit.]” Clemons v. Atlanta Neurological Institute, 192 Ga. App. 399, 401 (384 SE2d 881) (1989). When the charge in the case at bar is considered as a whole, we find no merit in appellant’s three contentions alleging error or confusion in the trial court’s charge.

(b) We find no support in the transcript for appellant’s contention that Dr. McDonald was permitted to testify to medical opinions, which were beyond the scope of his expertise. Dr. McDonald had been qualified as a toxicologist and had explained that toxicology was the study of adverse actions of chemicals on the body. He was thus properly permitted to testify concerning the effect of certain substances, such as Antabuse, on the body, and was properly prevented from testifying as to whether the signs displayed by the decedent were consistent with any other known physical problems. Accordingly, the principle set forth in Southern R. Co. v. Cabe, 109 Ga. App. 432, 441-443 (6) (136 SE2d 438) (1964), relied on by appellant, is inapplicable.

Decided February 4, 1991

Rehearing denied February 18, 1991

Richard D. Phillips, Billy N. Jones, 0. Dale Jenkins, for appellant.

Dickey, Whelchel, Brown & Readdick, J. Thomas Whelchel, Bouhan, Williams & Levy, James M. Thomas, Douglas A. Nystrom, Howard, Carswell & Bennett, Kenneth R. Carswell, for appellees.

Judgment reversed.

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


author: Cooper, Judge. Banke, Presiding Judge,

text:
    A90A1558.
    BULLARD v. THE STATE.
    (402 SE2d 539)
   Cooper, Judge.

On May 8, 1990, appellant filed a pro se notice of appeal from his plea of guilty to battery made on April 4, 1990, in the State Court of Clayton County. On June 18, 1990, this court ordered him to file an enumeration of error and brief no later than June 25, which to date, he has failed to do. The State filed a motion to dismiss the appeal as untimely, for insufficient service and for failure to file an enumeration of error or a brief.

1. “Notwithstanding [appellant’s] failure to comply with the rules and order of this court, we decline to dismiss his appeal, but instead we will review the record . . . and make a decision based upon the merits of the case. [Cit.]” Cleveland v. State, 193 Ga. App. 621 (1) (388 SE2d 748) (1989).

2. Appellant’s notice of appeal states that he has “a serious claim” that he was denied due process. There is no transcript of the hearing on the entry of his guilty plea. The record contains an arraignment and plea statement form filled in and signed by appellant, which states that he understood that he had the right to plead not guilty and to have an attorney appointed to represent him; that if he plead guilty he would give up all rights guaranteed him; and that he had read the accusation brought against him, understood the nature of the charges and the consequences of his plea but freely and voluntarily waived counsel. The statement reveals that defendant was 28 years old, had attended school through the ninth grade and attained a GED certificate. The form is also signed by the trial judge, attesting that the statement was made by the defendant in his presence, that the court was satisfied the defendant understood all rights applicable to him, the nature of the charges against him, the consequences of his plea and that the defendant had freely and voluntarily tendered his plea to the court. The statement further bears the signed notation of the trial judge that he personally read it to the defendant.

Decided February 18, 1991.

Paul S. Bullard, pro se.

Keith C. Martin, Solicitor, Kimberly C. Carr, Assistant Solicitor, for appellee.

This procedure was in compliance with the Uniform Rules for the State Courts 33.1 and 33.11, as well as with the Uniform Rules for the Superior Courts 33.7 through 33.11. We find it was sufficient to show that appellant’s plea of guilty to battery was knowingly and voluntarily made with a full understanding of the charges against him and the consequences of his plea, and that there was no denial of due process. See Withers v. State, 193 Ga. App. 366 (387 SE2d 647) (1989); Morgan v. State, 191 Ga. App. 367 (1) (381 SE2d 583) (1989). Compare Lewis v. State, 191 Ga. App. 509 (2) (382 SE2d 207) (1989).

Judgment affirmed.

Birdsong, P. J., concurs. Banke, P. J., concurs specially.

Banke, Presiding Judge,

concurring specially.

I am compelled to concur in Division 1 only because the majority of our Supreme Court and the majority of this court have previously spoken on this issue.

Nevertheless, I do not believe we discharge our institutional duty fairly and properly service our constituencies, the bench or the bar when we promulgate rules for the orderly operation of this court and then fail, selectively, to enforce them. As I previously said, a case in this posture should be dismissed.