text:
    A93A0434.
    MOORE et al. v. STATE OF GEORGIA.
    (432 SE2d 597)
   Blackburn, Judge.

The State of Georgia commenced this forfeiture action against $200 cash, a 1985 Chevrolet Camaro automobile, and Clyde Moore as the owner, following seizure of the property during a search of Moore and his car pursuant to a search warrant. The trial court found that the property was contraband and therefore forfeited to the state in accordance with OCGA § 16-13-49, and this appeal followed.

1. The appellants contend that issuance of the search warrant (for Moore’s person, car, and residence) was not supported by probable cause, because the affidavit submitted in conjunction with the application for the warrant was conclusory in nature. They emphasize that an affidavit “should contain more than a conclusory statement which gives the magistrate virtually no basis at all for making an independent judgment regarding the existence of probable cause. It should contain enough information to insure that the magistrate’s decision as to the existence of probable cause is not merely a ratification of the conclusion of the officer seeking the warrant. [Cit.]” Dobbins v. State, 262 Ga. 161, 163-164 (415 SE2d 168) (1992).

In the instant case, the averring officer stated that an undercover police officer purchased marijuana from an individual named Derek Harrison on four different occasions, and on each occasion Harrison identified his supplier as Butch Moore. On two of those occasions, an officer followed Harrison to Moore’s residence, where Harrison went in briefly, and then back to Harrison’s residence, where Harrison sold marijuana to the undercover officer. On both occasions, Harrison had told the undercover officer that he had to go to Butch’s house to get the marijuana.

Although these averments are not rich in detail, they did more than state mere conclusions that trafficking in marijuana had occurred in Moore’s residence. The affidavit stated facts describing an individual’s sale of marijuana to an undercover police officer, each time identifying Moore as the supplier, and on two of those occasions actually being observed to visit Moore’s residence immediately prior to selling the marijuana. “These facts, though minimal, permitted the magistrate to exercise his own independent discretion in concluding probable cause existed for the search and did not require the magistrate merely to rely on the opinion of the deposing officer.” Kemp v. State, 201 Ga. App. 629, 633 (6) (411 SE2d 880) (1991).

The appellants also point out the affidavit described Moore as approximately 19 years old, whereas he actually was 38 years old. However, they fail to explain how the affiant’s mistake over Moore’s age invalidated the warrant. “ ‘Minor factual inaccuracies which are only peripherally relevant to the showing will not void the warrant where their presence in the affidavit is not such as to reflect on the credibility of the affiant.’ [Cit.]” Van Nice v. State, 180 Ga. App. 112, 115 (2) (348 SE2d 515) (1986).

2. The appellants also contend that the evidence did not support a finding that Moore’s automobile and the $200 cash were subject to forfeiture. Specifically, they assert that the evidence did not show that the automobile or cash were used to facilitate a drug transaction.

As police officers approached Moore’s garage apartment to execute the search warrant, Moore was leaving in his 1985 Chevrolet Camaro. The officers stopped him, and a pat-down search revealed a quarter-ounce bag of marijuana and $200 cash in one pocket of his pants. There were no smoking devices or rolling papers on him or in his car. The officers then proceeded to search Moore’s residence. Moore initially denied that it was his home, but plaques on the wall and checks found in the apartment bore his name. During the search, officers found 16 live marijuana plants growing in a closet, and 25 quarter ounce or ounce bags of marijuana stored in a large plastic bag under a bed pillow.

Under OCGA § 16-13-49 (d) (2), property that is used in any manner to facilitate a violation of the Georgia Controlled Substances Act, or any proceeds derived therefrom, is contraband, and no person shall have a property right to it. Under OCGA § 16-13-49 (d) (6), money that is found in close proximity to any controlled substance or marijuana, or other property subject to forfeiture, likewise is contraband. Further, OCGA § 16-13-49 (s) (2) provides that “[t]he fact that money . . . was found in proximity to contraband . . . authorizes the trier of the fact to infer that the money . . . was the proceeds of conduct giving rise to forfeiture or was used or intended to be used to facilitate such conduct. ...”

Decided June 2, 1993 —

Reconsideration denied June 17, 1993 —

Chris G. Nicholson, for appellants.

Michael C. Eubanks, District Attorney, Scott A. Drake, Daniel W. Hamilton, Assistant District Attorneys, for appellee.

Testimony during the hearing revealed that Moore supplied quarter-ounce bags of marijuana to the individual who sold it to the undercover officer on three separate occasions, and an ounce bag of marijuana on another occasion. At the time he was stopped, Moore had a quarter-ounce bag of marijuana on his person, but no paraphernalia usually associated with personal consumption of marijuana. Moore’s possession and transportation of a quarter-ounce bag of marijuana but lack of any smoking devices, along with his routine of selling marijuana in quarter-ounce bags and the overwhelming evidence of his manufacture of marijuana, authorized the finding that Moore was using his 1985 Chevrolet Camaro to facilitate a sale of marijuana when he was stopped.

With regard to the $200 cash, in State of Ga. v. Anderson, 194 Ga. App. 139 (390 SE2d 68) (1990), it was held that a showing by the state that money is in close proximity to drugs is sufficient to establish a prima facie case in an action for condemnation of the money. Anderson was only a two-judge case and thus carries no precedential value, and it considered an earlier version of OCGA § 16-13-49. However, OCGA §§ 16-13-49 (d) (6) and 16-13-49 (s) (2), subsequently enacted, embody that decision. Accordingly, the close proximity of the money to the quarter-ounce bag of marijuana authorized the trial court to find that the money either constituted proceeds of drug transactions, rather than salary as Moore claimed, or facilitated marijuana transactions, and thus was subject to forfeiture.

Judgment affirmed.

Johnson and Smith, JJ., concur.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A93A0554.
    POPPELL v. THE STATE.
    (432 SE2d 573)
   Blackburn, Judge.

The defendant, James Robert Poppell, pled guilty to driving under the influence, conditioning his plea upon his right to appeal the court’s denial of his general demurrer and his plea in bar. His 12-month jail sentence was suspended based upon the payment of a fine in addition to the completion of 10 days of community service work. On appeal, he contends that the formal accusation filed by the solicitor was filed outside of the two-year statute of limitation, and as a result, he is entitled to a dismissal of the DUI charge.

On November 27, 1987, the defendant was issued a “Uniform Traffic Citation, Summons, Accusation/Warning” (UTC) for DUI (second offense), in violation of OCGA § 40-6-391 (a) (3), and was subsequently arrested. The police department, on September 6, 1991, “turned over to” the solicitor charges against the defendant and the solicitor issued a formal accusation on the DUI charge on September 10, 1991, although no additional charges were filed against the defendant. The defendant filed a plea in bar, alleging that the accusation was untimely as it was filed outside of the two-year time period.

At trial, the court denied the defendant’s plea in bar and the defendant’s general demurrer, and the defendant subsequently pled guilty to the DUI offense, subject to his right to bring this appeal, as approved by the trial court and agreed to by the solicitor. This appeal followed the defendant’s 12-month suspended sentence for driving under the influence.

“Generally, prosecution for misdemeanors must be commenced within two years after the commission of the crime. OCGA § 17-3-1 (d).” Duncan v. State, 193 Ga. App. 793 (389 SE2d 365) (1989). While we conclude that prosecution of the defendant under the September 10, 1991 formal state court accusation is barred by OCGA § 17-3-1 inasmuch as the offense occurred on November 27, 1987, and the accusation was filed on September 6, 1991, “such does not require the complete grant of defendant’s plea in bar since defendant [can] be prosecuted under the uniform traffic citation which [he] received at the time of [his] arrest. Since the uniform traffic citation contains an accusation [and constitutes the commencement of the prosecution], the ‘accusation subsequently filed by the solicitor’s office is superfluous.’ [Cit.]” Duncan, supra at 794. “Prosecution being pursued in state court, there was no need for a formal indictment; the citation alone sufficed to prosecute the traffic violation.” Weaver v. State, 179 Ga. App. 641 (1) (347 SE2d 295) (1986). As provided in OCGA § 40-13-1, “a uniform traffic citation . . . shall serve as the citation, summons, accusation, or other instrument of prosecution of the offense or offenses for which the accused is charged. ...” The trial court properly denied the defendant’s plea in bar and proceeded to accept a plea on the DUI charge, as originally contained in the uniform traffic citation. The trial court did not err in denying the defendant’s plea in bar in that the prosecution was timely commenced by the issuance of the uniform traffic citation on November 27, 1987.

Judgment affirmed.

Johnson and Smith, JJ,, concur.

Decided May 24, 1993 —

Reconsideration denied June 17, 1993 —

Richard Phillips, for appellant.

J. William Harvey, for appellee.


text:
    A93A1348, A93A1144.
    CLARK v. JEFFERSON PILOT LIFE INSURANCE COMPANY (two cases). JEFFERSON PILOT LIFE INSURANCE COMPANY v. CLARK.
    A93A1145.
    (432 SE2d 815)
   Blackburn, Judge.

Henry Lee Clark, as beneficiary, initiated a claim for accidental death benefits against Jefferson Pilot Life Insurance Company (Jefferson), as a result of the death of his son, Donnie Lee Clark, in a one vehicle accident. A blood test was issued after the death of the decedent which indicated that the deceased’s blood alcohol content was .15 percent. The accidental death insurance policy issued by Jefferson specifically excluded death caused by or resulting from an injury sustained while the deceased operated a motor vehicle if he was under the influence of alcohol with a blood alcohol level of at least .15 percent. Based upon this exclusion, Jefferson denied Clark’s claim for benefits. On appeal of the trial court’s decision in favor of Clark, this court, in Jefferson Pilot Life Ins. Co. v. Clark, 202 Ga. App. 385 (414 SE2d 521) (1991), reversed the decision of the trial court. We concluded that the lower court erred by engrafting a proximate cause requirement in the exclusion clause at issue by charging on such a requirement and erred by submitting a special interrogatory to the jury as to causation. After this court’s reversal of the decision of the trial court without direction and before the actual new trial in the case, Jefferson moved the court to enter judgment upon the special interrogatories submitted to the jury at the previous trial. Thereafter, Clark filed a motion in limine to prevent the use of the results of the blood alcohol test as the blood used in the test was drawn by a mortician. Both motions were denied by the trial court, and the court certified for immediate review the order denying both motions. We granted both applications for interlocutory review of the trial court’s decision.

Case No. A93A1348

1. Clark enumerates as error the trial court’s ruling that a mortician can be an “other qualified person” under OCGA § 40-6-392. Specifically, Clark asserts that the trial court erred in ruling that the sample of blood obtained from the body of the deceased is admissible because the sample was taken by a mortician, not an “other qualified person” as designated in OCGA § 40-6-392. We disagree.

OCGA § 40-6-392 (a) (2) provides that “[w]hen a person shall undergo a chemical test at the request of a law enforcement officer [under Code section 40-5-55], only a physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person may withdraw blood for the purpose of determining the alcoholic content therein. ...” (Emphasis supplied.) In Thurman v. State, 172 Ga. App. 16 (321 SE2d 780) (1984), we interpreted the term “other qualified person” contained in OCGA § 40-6-392 (a) (2) to include a medical technician who had been employed at a hospital for three years as a phlebotomist and had special training as a phlebotomist during a two-year course of instruction at a medical institute. Further, in Gooch v. State, 155 Ga. App. 708 (272 SE2d 572) (1980), the court considered a hospital employee a qualified person under OCGA § 40-6-392 inasmuch as the employee had training in the drawing of blood and did in fact draw blood from approximately 50 people per day.

In the instant case, Aaron Spaulding, the licensed mortician who extracted the blood from the deceased after the fatal accident, testified by deposition at the prior trial and indicated that he had been in the mortician business for 40 years and had received training at the John College of Mortuary Science in Nashville, Tennessee. He further averred that he has drawn blood at the request of coroners on more than 200 occasions. “Under the circumstances of this case we likewise find that [Spaulding] was a qualified person under OCGA § 40-6-392 (a) (2).” Thurman, supra at 17.

Case No. A93A1145

2. In the cross-appeal, Jefferson contends that the trial court erred in denying its motion to enter judgment upon special interrogatories that had been submitted to the jury in the first trial. He further asserts that the lower court erred in requiring a new trial upon all of the legal and factual issues inasmuch as the trial court errors were limited to the incorrect application of the law to the facts. We disagree.

“ ‘If the judgment of the superior court is reversed on every point of exception, or on a single one only, it is entirely vacated. . . . This done, the case stands for trial, de novo, as in the first instance, unless otherwise disposed of, by the order of this court.’ [Cit.]” Worley v. Travelers Indem. Co., 121 Ga App. 179, 180 (173 SE2d 248) (1970). “ ‘The legal effect of the reversal of the judgment by this court of the judgment of the court below, based upon the verdict of a jury, was to have granted a new trial in the case. . . .’ [Cits.]” Id. See also Rawdin v. Conner, 211 Ga. 52 (84 SE2d 50) (1954). In Jefferson Pilot Life Ins. Co., supra, we reversed the lower court’s decision in several respects. Accordingly, a new trial was warranted and the trial court did not err in denying Jefferson’s motion on issues of fact found by the former jurors in the special interrogatories. Rawdin, supra.

Decided June 4, 1993 —

Reconsideration denied June 17, 1993 —

Simpson & Gray, Ralph F. Simpson, Elizabeth B. Gibbs, for Clark.

Wilkes, Johnson, Smith & Knox, Ken W. Smith, Kris B. Knox, for Jefferson Pilot.

3. Case No. A93A1144 contains portions of the record designated by Clark for omission on appeal, and was inadvertently transmitted to this court as a separate appeal. Inasmuch as Case No. A93A1144 is not a separate appeal that must be addressed by this court, it is therefore dismissed.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


author: Smith, Judge.

text:
    A93A0363.
    DOWDY v. THE STATE.
    (432 SE2d 827)
   Smith, Judge.

Gerry Lee Dowdy was tried jointly with a co-defendant and convicted of armed robbery. OCGA § 16-8-41 (a). His motion for new trial was denied.

1. He contends the trial court erred by overruling his objections and denying his motions for mistrial, after the State twice questioned him about the reasons for his initial refusal to give the police his name or address. Dowdy’s trial was held on July 14, 1992. Contrary to the State’s argument, it is immaterial that Dowdy’s silence took place before he was given Miranda warnings. Mallory v. State, 261 Ga. 625, 630 (5) (409 SE2d 839) (1991). “[I]n criminal cases, a comment upon a defendant’s silence ... is far more prejudicial than probative. . . . [S]uch a comment will not be allowed even where the defendant has not received Miranda warnings and where he takes the stand in his own defense.” Id. The objections should have been sustained.

A motion for mistrial is within the discretion of the trial court. Richardson v. State, 199 Ga. App. 10, 12 (403 SE2d 877) (1991). This court will not interfere with the trial court’s exercise of that discretion unless it is clear that a mistrial is essential to the preservation of the right to a fair trial. Stanley v. State, 250 Ga. 3, 4 (295 SE2d 315) (1982). However, we need not decide here whether the trial court abused its discretion in denying the motion for mistrial because, given the overwhelming nature of the evidence against Dowdy, it is highly probable that the error did not contribute to the verdict. It therefore was harmless. See Greer v. State, 201 Ga. App. 775, 776 (2) (412 SE2d 843) (1991).

Dowdy testified in his own defense and, although he denied that he knew the robbery would take place, he admitted he was present while a third person accosted the victim and robbed him at gunpoint in a parking lot. He further conceded that when instructed by that third person to pick up the money the victim had thrown down at gunpoint, he did so. This testimony was an admission that Dowdy was a party to the crime of armed robbery by aiding and abetting, OCGA § 16-2-20 (b) (3), and as such, he may be convicted of armed robbery. OCGA § 16-2-20 (a). In addition, the victim testified that he got a good look at the robber in the lit parking lot, and was “100 [percent] sure” that Dowdy was the person who held him at gunpoint. The victim’s wallet was found in the car in which Dowdy and his co-defendant were riding when captured.

2. Dowdy contends it was error under Jones v. State, 257 Ga. 753, 760 (2) (363 SE2d 529) (1988) to allow the State to introduce into evidence Dowdy’s parole documents after Dowdy mentioned his parole. Dowdy testified that he did not tell the police his name and address because they had this information, having taken his parole papers, which were found on his person when he was arrested. Jones held only that such an inadvertent statement by the defendant does not place his character in issue within the meaning of OCGA § 24-9-20 (b), and thus certified copies of convictions of other offenses may not be introduced into evidence. It is permissible to explore the parole mentioned, and even the conviction for which he was on parole. Id.

3. In two enumerations, Dowdy contends error by the trial court in considering his prior conviction in aggravation of sentence.

When the State introduced the North Carolina conviction, Dowdy’s counsel objected on the ground that the conviction had been entered on a guilty plea that was not knowing and voluntary. The trial court overruled this objection after Dowdy’s counsel admitted he was not prepared to make a showing regarding his objection. This was error. “[0]nce the defendant raises the issue of intelligent and voluntary waiver with respect to prior guilty pleas, the burden is on the state to establish a valid waiver.” Pope v. State, 256 Ga. 195, 209 (17) (345 SE2d 831) (1986). Although the life sentence imposed is within the statutory limits, see OCGA § 16-8-41 (b), the court relied heavily on the prior offense in imposing the life sentence, and we cannot say that the error was harmless.

Decided June 17, 1993.

David L. Whitman, for appellant.

Lewis R. Slaton, District Attorney, Barry I. Mortge, Assistant District Attorney, for appellee.

Accordingly, the sentence must be vacated and the case remanded for a resentencing hearing.

Judgment affirmed in part and vacated and remanded in part.

Johnson and Blackburn, JJ., concur.


text:
    A93A0376.
    DUNBAR v. THE STATE.
    (432 SE2d 829)
   Smith, Judge.

David Lee Dunbar was tried before a jury and found guilty of selling crack cocaine. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt.

1. Dunbar enumerates as error the purported violation of the rule of sequestration.

After the rule was invoked, OCGA § 24-9-61, the lead investigator testified first and then was permitted to remain in the courtroom during the remainder of trial to assist the presentation of the State’s case. Over objection, this witness was twice recalled to the stand. It was not an abuse of the trial court’s discretion to permit this witness to be recalled after having heard the testimony of the other witnesses, including the defendant. See, e.g., Johnson v. State, 198 Ga. App. 316, 317 (4) (401 SE2d 331) (1991). In the absence of a timely request, the trial court did not err in failing to instruct the jury on the credibility of a witness who has heard the testimony of other witnesses. See Bradford v. State, 182 Ga. App. 337, 338-339 (6) (355 SE2d 735) (1987). This enumeration is without merit.

2. The indictment alleged that, Dunbar, on July 5, 1989, in Cobb County, knowingly and unlawfully sold cocaine, in violation of Georgia law. After the State rested, Dunbar’s attorney moved orally to dismiss the indictment, urging that it was vague for failing to allege a time and a place, and did not specifically describe the offense. The trial court overruled the motion as untimely, and this ruling is enumerated as error.

OCGA § 17-7-111 provides that “If the defendant, upon being arraigned, demurs to the indictment, . . . the demurrer . . . shall be made in writing.” Uniform Superior Court Rule 31.1 requires that “[a]ll motions, demurrers, and special pleas ... be made ... at or before time of arraignment, unless time therefor is extended by the judge in writing prior to trial.” “Where the accused desires to take exception to the form of an indictment . . ., it is essential that he should do so by a demurrer or motion to quash, made in writing and before [entering a] pleading to the merits. If, however, the indictment . . . is so defective that judgment upon it would be arrested, attention may be called to this defect at any time during trial, and it may be quashed on oral motion.” Gilmore v. State, 118 Ga. 299, 300 (1) (45 SE 226) (1903). See also Pullen v. State, 199 Ga. App. 881 (406 SE2d 283) (1991). “A general demurrer challenges the sufficiency of the substance of the indictment, whereas a special demurrer challenges the sufficiency of the form of the indictment. [Cits.]” (Emphasis supplied.) Bramblett v. State, 239 Ga. 336, 337 (1) (236 SE2d 580) (1977). “All exceptions which go merely to the form of an indictment . . . shall be made before trial.” OCGA § 17-7-113.

Accordingly, Dunbar waived all exceptions to the mere form of the indictment, by failing to urge them in a pre-trial special demurrer. Mullen v. State, 51 Ga. App. 385, 388 (180 SE 521) (1935). See also State v. O’Quinn, 192 Ga. App. 359, 361 (2) (384 SE2d 888) (1989). To the extent that Dunbar’s mid-trial oral motion to dismiss raised only exceptions to the form of the indictment, the trial court correctly overruled them as untimely.

However, Dunbar also urged that the indictment failed to specify an offense, in essence an exception to the sufficiency of the substance of the indictment. If true, this would make the indictment subject to a general demurrer or any subsequent conviction subject to an arrest of judgment. Under the authorities noted above, such an objection may be made orally and at any time. The trial court’s reasoning that this exception was untimely is erroneous. However, the overruling of Dunbar’s general demurrer was nevertheless correct.

“Every indictment. . . which states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury shall be deemed sufficiently technical and correct.” OCGA § 17-7-54 (a). “ ‘The true test of the sufficiency of an indictment that will withstand a general demurrer is ... as follows: “If all the facts which the indictment charges can be admitted, and still the accused be innocent, the indictment is bad; but if, taking the facts alleged as premises, the guilt of the accused follows as a legal conclusion, the indictment is good.” ’ [Cit.]” Gower v. State, 71 Ga. App. 127, 128 (1) (30 SE2d 298) (1944). The indictment follows the statutory language, and so is sufficient in substance. Moreover, Dunbar could not admit to these allegations and still be innocent. The trial court did not err in overruling his timely general demurrer to the indictment.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

Decided June 17, 1993.

James W. Bradley, for appellant.

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


text:
    A93A0488.
    BROWN v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY et al.
    (432 SE2d 675)
   Smith, Judge.

Mason Brown appeals from the grant of summary judgment in favor of Southern Bell Telephone & Telegraph Company and Troup Electrical Membership Corporation in Brown’s action to recover damages for injuries sustained after coming into contact with an uninsulated electrical distribution line owned by the EMC. We affirm.

The record shows that the incident occurred late on a Saturday afternoon when Brown, who is employed by a trucking company but also owns and rents out heavy equipment, was delivering a front-end loader to a location along a privately owned roadway. He was driving a dump truck and towing a low-boy trailer, on which the loader had been placed, when an overhead telephone wire owned and maintained by Southern Bell caught on the roof of the loader’s cab, preventing Brown from progressing. He looked out the window of his truck and observed the telephone wire moving. He let the truck roll back about six inches to release the tension on the wire in an unsuccessful attempt to free it. He had a radio in his truck on which he could call a trucking company’s headquarters or other trucks, but did not use it to call for help because no one was in the office on Saturday, and because freeing the wire himself “didn’t look that hard.” He then climbed up on the roof of the loader and used a rubber strap from the truck to pull the telephone wire out and free it.

The telephone wire was the lowest of three wires overhead. It was 11 1 from the ground, as measured after the incident. Above it were an insulated neutral wire and an uninsulated primary, or high-voltage distribution wire> owned by the EMC, which were later determined to be 18 5 and 21 1 from the ground, respectively. He had freed the telephone wire and intended to pull it behind him when he made contact with the uninsulated primary wire and was shocked, causing him to fall from the loader’s roof to the ground, further injuring himself.

Although Brown could not recall seeing the wires before that day, he observed them as he was driving along the road and noticed them when on the roof of the loader. He testified that the height of his load was over 13 . It was measured after the accident and found to be 13 9 .

1. A conflict exists in the evidence regarding whether the roadway on which the incident occurred must be considered “subject to truck traffic,” which is determinative of the clearance required under industry standards set forth in the National Electrical Safety Code. It is clear, however, that the neutral wire could not have caused the burns, and under either possible standard, Brown has admitted, and his expert has testified, that the primary wire met industry clearance standards.

At the time of the incident, the High Voltage Safety Act, OCGA § 46-3-30 et seq., prohibited the transportation of machinery or equipment within eight feet of uninsulated high-voltage lines unless and until notice was given to the utility by the person responsible for the work and the utility guarded against danger from accidental contact. Former OCGA §§ 46-3-32 (a); 46-3-33.

Given that Brown’s load was 13 9 high and the primary wire was 21 1 from the ground, it is clear that Brown was transporting equipment within eight feet of the uninsulated primary line. The primary line met the clearance standard, and Brown admitted he gave no notice to the EMC either before transporting the load on the roadway or before climbing the loader. Under these circumstances, Brown’s claim of negligence against the EMC is barred. Malvarez v. Ga. Power Co., 250 Ga. 568 (300 SE2d 145) (1983). Summary judgment was properly granted in favor of Troup EMC.

2. The Southern Bell wire was insulated and had no defects in the insulation. It therefore could not have caused Brown’s injuries. However, even were we to assume that Southern Bell was somehow negligent in installing or maintaining the wire, as contended by Brown, it is clear that Brown assumed the risk, and that his own negligence was the proximate cause of his injuries.

Brown testified that he had seen the power lines when he climbed up on the loader. Although he may not have known exactly how close the power lines were, he knew there was a risk but just “never thought about it.” He had been around power lines before in connection with his work, knew that some were uninsulated, and appreciated that getting within ten feet of one was dangerous. He is over six feet tall. If he had stood upright atop the loader’s roof the neutral wire would have been approximately chin or shoulder high and the primary wire would necessarily have been within arm’s reach. He used a rubber strap because, although he did not think telephone lines carried much voltage, he was not sure, and did not know if snagging on the loader had skinned it. He had the option of calling for help over his radio, or he could have approached any of the nearby homes to use the telephone, yet he voluntarily chose to climb up over 13' — in itself a dangerous activity — and try to free the telephone wire, knowing that he was near high-voltage lines.

Decided June 17, 1993.

Samuel W. Oates, Jr., for appellant.

Jones, Cork & Miller, C. Ashley Royal, H. Jerome Strickland, Gray, Gilliland & Gold, T. Cullen Gilliland, John B. Austin, James R. Thompson, for appellees.

“A person cannot undertake to do what is obviously a dangerous thing and at the same time avoid the responsibility for the self-assumed risk.” First Pacific Mgmt. Corp. v. O’Brien, 184 Ga. App. 277, 281 (361 SE2d 261) (1987). Here, as in Mann v. Hart County EMC, 180 Ga. App. 340 (349 SE2d 215) (1986), Brown tested a known danger, thereby relieving Southern Bell from liability for any alleged negligence on its part. From Brown’s own testimony, it is apparent as a matter of law that by calling for assistance and refraining from climbing on top of the loader he could have avoided the consequences to himself of any negligence on the part of Southern Bell. It is likewise apparent that he was fully aware of the danger involved. See Ga. Power Co. v. Purser, 152 Ga. App. 181, 182 (262 SE2d 473) (1979). He nevertheless proceeded, and was injured. Because he assumed the risk, the trial court properly entered summary judgment for defendants. Sapp v. Effingham County Bd. of Ed., 200 Ga. App. 695, 696 (1) (409 SE2d 89) (1991).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

       The Act was amended effective July 1, 1992, and the Code sections were renumbered. Present OCGA § 46-3-33 requires notification if work is done within ten feet of high-voltage lines.


text:
    A93A0509.
    RAULS v. THE STATE.
    (432 SE2d 677)
   Smith, Judge.

James Franklin Rauls was tried before a jury and found guilty of one count of selling crack cocaine. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilty.

1. When the State tendered the cocaine purchased by the investigating officer, Rauls objected on the basis that the officer had no personal knowledge that these items were the same as those purchased. The trial court overruled this objection, and this evidentiary ruling is enumerated as error.

The officer explained the procedures employed to protect the integrity of the chain of custody. An evidence receipt is placed in the evidence bag with the cocaine, and the bag is sealed. When the sealed bag is received at the state crime lab, it is assigned a unique number, and a copy of the evidence receipt with that unique number is returned to the police. The returned receipt in this case had a state crime lab designation matching the lab report that identified as cocaine the substance purchased by the officer and submitted by him for testing. This was adequate to establish chain of custody with reasonable certainty. Mathis v. State, 204 Ga. App. 244 (1) (418 SE2d 800) (1992).

Decided June 17, 1993.

Clyde M. Urquhart, for appellant.

W. Glenn Thomas, Jr., District Attorney, C. Keith Higgins, Assistant District Attorney, for appellee.

2. The State tendered a still photograph made from a videotape of the sale. Rauls objected that this photograph was cumulative, was out of context, and overemphasized that particular frame of the entire video. The photograph was nevertheless admitted, and this evidentiary ruling is enumerated as error.

As to the admissibility in general of computer-enhanced photographs made from videos, see English v. State, 205 Ga. App. 599, 600 (1) (422 SE2d 924) (1992). However, appellant’s stated objections were nothing more than a complaint that a contemporaneous photograph of the drug seller was more prejudicial than probative. This is entirely too vague and general to present any question for determination by the trial court, and the overruling of this objection did not constitute reversible error. Sultenfuss v. State, 185 Ga. App. 47, 49 (4) (363 SE2d 337) (1987).

3. Appellant enumerates the general grounds.

The in-court identification of Rauls as the seller of the crack cocaine was sufficient to authorize a rational trier of fact reasonably to find proof of his guilt beyond a reasonable doubt. Hill v. State, 205 Ga. App. 475, 476 (1) (422 SE2d 564) (1992).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Birdsong, Presiding Judge.

text:
    A93A0614.
    TAYLOR v. THE STATE.
    (432 SE2d 679)
   Birdsong, Presiding Judge.

Oswald Taylor appeals his conviction for possession of cocaine and use of drug-related objects and trafficking in cocaine. He contends the evidence was based on uncorroborated evidence of an accomplice, in violation of OCGA § 24-4-8. Held:

The evidence shows that a package containing a child’s teddy bear, in which 28 grams of cocaine were secreted, was intercepted at a Federal Express terminal in Florida. It was addressed to Mark Harris at appellant Taylor’s address in Toccoa, Georgia. Law enforcement officials in Toccoa obtained a search warrant and arranged delivery of the package by a Florida drug agent dressed as a Federal Express employee. At 2:43 p.m. on June 11, 1990, the disguised agent knocked on appellant’s apartment door; Harris answered and signed for the package, using an alias. The agent returned to the Federal Express van, in which there were several Toccoa law officers, and drove down the street. Two or three minutes later, as planned, he returned and asked Harris to sign the receipt again. The officers entered the apartment, handcuffed Harris and searched the apartment. They found the teddy bear on the sofa; it had been split open. They found small weighing scales which had been in the teddy bear. The cocaine was not found in the apartment.

The sheriff and police chief had, as part of the plan, been waiting nearby in a car; after the delivery they drove toward appellant’s apartment and the sheriff saw a man run across the street from the apartments toward an area where, the next day, the cocaine was found hidden under a metal building. A few minutes after the search began, appellant came into his apartment. He testified he had been working at Wal-Mart until 2:00 p.m.; that he drove home, prepared his lunch, and walked over to his girl friend’s house. Not finding her, he returned to his apartment, first stopping to get his rent receipt from the manager. When he saw officers around his apartment, he went to the apartment to see what was happening.

The accomplice, Mark Harris, testified that he had come up from Miami to appellant’s apartment to receive and help sell drugs, after a person in Toccoa wired money to a Wayne Anderson to get the drugs, and that appellant was directly involved in this plan to distribute drugs in Toccoa. Harris arrived in Toccoa a few days before the delivery of drugs to appellant’s apartment. Appellant had lived in Miami and he and Harris had been friends since childhood. Harris testified that appellant was upstairs when the delivery was made; he immediately came downstairs, opened the package and said the teddy bear had been tampered with; appellant immediately removed the cocaine from the bear and ran out the back door. A few minutes later the delivery man (agent) returned and knocked on the door, yelling that he needed another signature; Harris opened the door and the police entered. Soon after, appellant returned.

We find evidence corroborating the accomplice’s testimony. The evidence shows that the officers in the Federal Express van returned to the apartment within three minutes after delivering the package and Mark Harris was still in the apartment. The officers searched the apartment before and after appellant returned to it. The cocaine was not in the apartment, and was not found until the next day, under a metal building which was about 150 yards away. The jury was exhaustively instructed as to the terrain and location of the buildings and of the movements of the officers in and around the buildings at the time of the delivery. The metal building was too far for Harris to go to it and return in one to three minutes; Harris was never seen leaving the apartment but another man was seen running from the apartments within that time. The evidence thus shows that someone other than Harris was in the apartment, and had left with the cocaine while Harris stayed. There is no evidence any person other than appellant and Harris was in the apartment at the time of the delivery and the search. Further, when appellant returned to his apartment after the police had entered it, he denied knowing Mark Harris.

Decided June 17, 1993.

Dious, Bailey & Associates, I. Kenneth Dious, Nina M. Svoren, Kenneth D. Kondritzer, for appellant.

Michael H. Crawford, District Attorney, for appellee.

The corroborating evidence supports Mark Harris’ testimony. “ ‘ “ [Corroborating evidence need not of itself be sufficient to warrant a conviction. . . . (Cit.) Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support the verdict. (Cit.)” Reaves v. State, 242 Ga. 542, 543 (250 SE2d 376).’ ” Williams v. State, 198 Ga. App. 725, 726 (402 SE2d 796). The evidence is sufficient to persuade a rational trier of fact of appellant’s guilt of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A0666.
    MACK v. THE STATE.
    (432 SE2d 680)
   Blackburn, Judge.

The defendant, Freddie Mack, and two co-defendants, were indicted for the armed robbery of an acquaintance of the defendant. After a separate trial by jury, the defendant was convicted of the offense and sentenced to ten years’ imprisonment with five years to serve. This appeal followed.

At the Jackson-Denno hearing, Charles Dudley, a special agent with the Georgia Bureau of Investigation, testified that he interviewed the defendant on July 17, 1989, after two investigators visited the defendant’s home and requested that he appear at the jail for questioning. Upon his arrival at the jail, the defendant was directed to the office of Investigator Hattaway. The defendant did not appear to be under the influence of any intoxicating drugs or alcohol and did not appear to be in any pain upon his arrival to the jail. The defendant was not in police custody prior to the hour-long interview. Although the agent indicated that the defendant was given “his rights” before the interview and after the agent “felt like [the defendant] was involved in the robbery,” the form signed by the defendant acknowledging his right to remain silent, and right to representation, shows that the warnings were made at 2:30 p.m.. However, the written statement was given by the defendant at 2:10 p.m., approximately 20 minutes before the defendant was apprised of his Miranda rights. In an effort to explain the discrepancy in the time of the warning and the statement, the agent averred that he initially thought that the defendant was a victim of the robbery. However, once the defendant explained his version of the facts, he concluded that the defendant, in fact, was a participant in the robbery scheme. The defendant only became a suspect during the course of the interview. He denied that the defendant asked for an attorney at any time during the hour-long interrogation.

The defendant testified that the investigators questioned him during the interrogation as if he were a suspect, although he was never informed that he was an actual suspect in the robbery. After the defendant was informed that his description of the suspects was different from the description that had been given earlier, the defendant asked if he could telephone his sister to retain an attorney. In response, Investigator Douglas asserted that he did not need an attorney because he was going to read him his rights. Thereafter, the defendant was informed of his right to remain silent and right to an attorney. On cross-examination, the defendant admitted that he had requested an interview with Investigator Hattaway because he wanted to turn himself in a few days earlier. Although he had been on medication, he admitted that he understood the Miranda warnings. He also admitted that he made the incriminating statement, but denied the veracity of the portion of the statement which indicated that he arranged the robbery of the victim. The defendant signed the statement because he was afraid. Based upon the pretrial testimony of the defendant and Agent Dudley, the trial court concluded that the defendant understood his rights and voluntarily waived them.

1. In his first two enumerations of error, the defendant contends that the trial court erred in admitting the confession as the confession was a product of police interrogation which occurred before he was informed of his Miranda rights and after he had requested an attorney. We disagree.

In the instant case, “[t]he trial court, however, found the testimony of the police [witness] more creditable than [the defendant’s], and, therefore, found the required warnings had been given, [the defendant] understood his rights, and voluntarily waived them without hope of reward or benefit. Although inconsistent with [the defendant’s] testimony, the trial court’s findings are based upon the testimony of the [actual] law enforcement [official] in the Jackson-Denno hearing, and there is evidence of record supporting each of the findings. On appeal, where the evidence is in conflict, the trial court’s findings on factual determinations and credibility will be upheld unless clearly erroneous. [Cits.] Our review of the record shows that the trial court’s determinations were not clearly erroneous. . . .” Chastain v. State, 196 Ga. App. 50, 51-52 (2) (395 SE2d 570) (1990). The trial judge, based upon his observation of the demeanor of the defendant and the investigating official, found that the testimony of Agent Dudley was more credible than the testimony of the defendant, concluding that the preponderance of the evidence showed that the defendant was advised of his Miranda rights, and voluntarily waived them thereafter. The court further determined that the defendant’s incriminating statement was given without any hope of benefit or fear of injury. Accordingly, there was no error in the admission of the defendant’s statement.

Additionally, during the defendant’s testimony at trial, he admitted that the statement was made after he was given the Miranda warnings, but denied portions of the custodial statement. As a result, the confession was admissible as a prior inconsistent statement. In Graham v. State, 175 Ga. App. 411, 414 (5) (333 SE2d 664) (1985), we held that “a prior incriminatory statement is admissible for impeachment purposes even if Miranda warnings had not been given. [Cit.]” See also Scott v. State, 243 Ga. 233 (253 SE2d 698) (1979) (a written confession of a defendant is admissible for impeachment purposes, without regard to whether the statement was voluntary). Consequently, this enumeration is without merit.

2. In his second enumeration of error, the defendant contends that the trial court erred in denying his request for a new appointed attorney after he expressed his dissatisfaction with his trial attorney. We conclude that this enumeration is also without merit.

‘A criminal defendant does have a constitutional right to be defended by counsel of his own selection whenever he is willing and able to employ such counsel. (Cits.) However, an indigent criminal defendant does not have an absolute right to discharge one court-appointed counsel and have another substituted in his place. A request of this sort addresses itself to the sound discretion of the trial court.’ [Cits.]” Newby v. State, 161 Ga. App. 805, 807 (2) (288 SE2d 889) (1982). In the case sub judice, although the defendant asserts that his trial counsel “railroad [ed]” him because he did not assist him in obtaining a conviction on a lesser included offense, the defendant admitted that he participated in the robbery of the victim. Inasmuch as the defendant was a party to the crime as defined in.OCGA § 16-2-20, the evidence supported his conviction. Accordingly, we conclude that the trial court did not abuse its discretion in denying the defendant’s request for new counsel.

Decided June 17, 1993.

John J. Pilcher II, for appellant.

Richard A. Malone, District Attorney, Melvin E. Hyde, Jr., Anne L. Latta, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A93A0717.
    BUCKNER v. THE STATE.
    (433 SE2d 94)
   Birdsong, Presiding Judge.

Harold Buckner appeals his judgment of conviction of aggravated assault with intent to rob and the sentence. He contends the trial court erred when it allowed testimony and documentary evidence of the victim’s pretrial identification of the co-defendant at a photographic lineup, on the grounds such evidence was irrelevant and served only to bolster the identification testimony of the victim.

The victim testified two men in a Cadillac passed him; one man exited the vehicle and assaulted him with a .25 caliber automatic pistol; the victim threw his wallet in the bushes and ran. Shortly thereafter, he saw the same Cadillac driving by, followed and got its tag number; at that time, he also observed the two male occupants and recognized the passenger as the person who had attempted to rob him. The victim made an in-court identification of appellant, but expressed uncertainty as to the accuracy thereof. He testified to his identification of both appellant and the co-defendant during a pretrial photographic lineup, and stated he was certain as to those identifications at the time they were made.

An off-duty police lieutenant saw the Cadillac, followed it and arrested the two men; the men arrested were the co-defendant and appellant. A .25 automatic pistol was found in the car under the driver’s side seat. This pistol was identified in court by the lieutenant, and by the victim who testified that to the best of his recollection it appeared to be the same weapon as was used at the crime scene.

The co-defendant, under a grant of use or derivative use immunity, testified, inter alia, that he offered appellant a ride in the Cadillac; appellant asked him to follow a man who was walking down the street in the vicinity of the crime scene; the co-defendant did this twice; appellant then exited the car; a short time later the co-defendant saw appellant walking and he picked him up again, and it was appellant who threw the pistol on the car floorboard.

A police officer testified, over objection, that the victim had made a pretrial identification of the co-defendant during a photographic lineup.

Appellant testified and admitted riding in the co-defendant’s car on the night in question but denied commission or knowledge of the crime. Held:

1. (a) Appellant failed to raise either at trial or in his enumeration of error, the victim’s in-court and pretrial identification of appellant. Accordingly, these issues are not before us on appeal. Compare Chezem v. State, 199 Ga. App. 869, 870 (2) (406 SE2d 522) with Ray v. State, 187 Ga. App. 451, 452 (370 SE2d 629).

(b) The trial court did not abuse its discretion in admitting the testimony of the victim and the corroborating testimony of the police officer regarding the victim’s prior, consistent pretrial identification of the co-defendant in a photographic lineup. Both the police officer and the victim testified at trial and were subject to cross-examination. This testimony was admissible as a prior consistent statement or prior consistent testimonial act of the victim. Compare Tankersley v. State, 261 Ga. 318, 322 (6) (404 SE2d 564); see Jarrells v. State, 258 Ga. 833, 837 (14) (375 SE2d 842), citing Cuzzort v. State, 254 Ga. 745 (334 SE2d 661). Moreover, the victim’s pretrial identifications of appellant and co-defendant, as being the persons riding together in the automobile in which they ultimately were arrested and in which the .25 caliber pistol was found, were relevant within the meaning of OCGA § 24-2-1. If evidence is relevant, no matter how slightly, it generally should be admitted and its weight left to the jury. Norman v. State, 197 Ga. App. 333, 336 (4) (398 SE2d 395).

(c) Appellant’s in-court identification by the victim had an “independent origin” from that of the contested pretrial identifications, and would not be rendered inadmissible even had error occurred in the pretrial identification procedure. Martin v. State, 193 Ga. App. 581, 583 (1) (388 SE2d 420); Brown v. State, 192 Ga. App. 187, 189 (1) (384 SE2d 254). The uncertainty expressed by the victim regarding his in-court identification of appellant was merely a factor to be considered by the jury in determining the weight of this testimony.

In view of the overwhelming evidence of appellant’s guilt, even had error occurred in the admission of testimony and documents regarding the victim’s pretrial identification of the co-defendant, we are satisfied beyond a reasonable doubt that such error would be harmless. Palmer v. State, 186 Ga. App. 892, 897 (3) (369 SE2d 38).

Decided June 17, 1993.

John H. Tarpley, for appellant.

J. Tom Morgan III, District Attorney, Barbara B. Conroy, John H. Petrey, Stacy Y. Cole, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


author: McMurray, Presiding Judge.

text:
    A93A0235, A93A0270.
    MINTZ v. NORTON COMPANY et al.; and vice versa.
    (432 SE2d 583)
   McMurray, Presiding Judge.

Claimant sustained a compensable injury in 1979 and received benefits until May 17, 1990, at which point the benefits were suspended by the employer/insurer. The employer/insurer sought a change of condition ruling, arguing it was entitled to suspend benefits effective October 6, 1989, because claimant was engaged in an illegal, supposedly profitable, activity at that time.

Claimant was charged with violating the Georgia Controlled Substances Act. He pleaded guilty on November 17, 1989, but was sentenced on April 12, 1990. He was incarcerated from November 17, 1989, until September 19, 1990. Following his incarceration, claimant’s treating physician opined, in a medical report dated January 22, 1991, that claimant reached “maximum improvement.” Nevertheless, he gave claimant a 20 percent disability rating to the body as a whole and concluded that claimant is “not able to work.”

Following a hearing, the administrative law judge (“ALJ”) determined that claimant was not entitled to benefits during the period of his incarceration. He also found that, following his incarceration, claimant was not able to work and was entitled to the reinstatement of benefits. In addition, the ALJ determined that the employer failed to prove that claimant earned any sum of money from illegal activities before he was incarcerated. Thus, the ALJ refused to suspend claimant’s benefits prior to the time of his incarceration on the ground that claimant was engaged in a profitable activity. The full board adopted the decision of the ALJ, adding that benefits were to recommence effective September 19, 1990, the day claimant was released from jail.

The superior court set aside the full board’s award and remanded for further proceedings. In pertinent part, the superior court found that “[e]vidence does exist which could support the full board’s adopted findings. . . .” It added: “In this court’s opinion, the ‘any evidence’ standard would unquestionably support the board’s decision absent evidence contrary to [the treating physician’s] opinion that the claimant was not able to work.” In that vein, relying upon Aden’s Minit Market v. London, 202 Ga. App. 219 (413 SE2d 738) (1991), the superior court ruled that a question of fact remained as to whether claimant was able to work inasmuch as he had been engaged in an illegal activity prior to his incarceration. In other words, the superior court took the position that claimant’s illegal activity belied the physician’s determination that claimant was unable to work and it ordered the full board to re-examine the case in that light. The superior court also ruled that the full board correctly determined that claimant was not entitled to benefits during the period of his incarceration and that claimant was entitled to benefits up until the time of his incarceration. This court granted claimant’s application for a discretionary appeal. Thereupon, claimant appealed (Case No. A93A0235) and the employer cross-appealed (Case No. A93A0270). Held:

1. “The issue on appeal to the superior court is whether there is ‘any evidence’ to authorize a finding in accordance with the contentions of the prevailing party before the Full Board.” Cobb Gen. Hosp. v. Burrell, 174 Ga. App. 631 (331 SE2d 23). If there is, the superior court is bound to affirm the award. Id.

In the case sub judice, the superior court acknowledged that the evidence was sufficient to authorize the full board’s findings. Nevertheless, it remanded to the full board to consider whether claimant’s illegal activity demonstrated he was able to work. In so doing, the superior court erred.

“There is authority for remanding a case to the board based upon uncertainty that all the evidence had been considered. OCGA § 34-9-105 (d); American Mut. &c. Ins. Co. v. Williams, 133 Ga. App. 257, 259 (211 SE2d 193) (1974); West-Point Pepperell v. Payne, 151 Ga. App. 541 (260 SE2d 412) (1979). Nevertheless, the mere failure to refer to all the evidence in the findings of fact does not establish that the board did not consider the evidence in its review of the matter. Union Carbide Corp. v. Coffman, 158 Ga. App. 360 (1) (280 SE2d 140) (1981); St. Regis Flexible Packaging Corp. v. Helm, 172 Ga. App. 251, 254 (2) (322 SE2d 549) (1984).” Henderson v. Mrs. Smith’s Frozen Foods, 182 Ga. App. 829 (2), 830 (357 SE2d 271).

We find no basis for concluding that the board did not consider all of the evidence in this case. The ALJ stated that he based his award on his consideration of the record and his observation of claimant. Besides, the ALJ made specific reference to the claimant’s illegal activities when he determined that, in spite of those activities, claimant was entitled to benefits prior to his incarceration. “In view of these circumstances it is inconceivable that the evidence questioned by the court was not considered, although rejected, by the board.” Henderson v. Mrs. Smith’s Frozen Foods, 182 Ga. App. 829 (2), 830, supra. It follows that the trial court erred in remanding to the board for a consideration of claimant’s illegal activities.

Decided May 26, 1993 —

Reconsiderations denied June 18, 1993 —

John F. Sweet, for appellant.

Shivers, Johnson & Wilson, Benjamin J. Johnson, for appellees.

Aden’s Minit Market v. Landon, 202 Ga. App. 219, supra, is not apposite. In that case, there was “no evidence in the record” showing that claimant was entitled to a resumption of benefits. In this case, on the other hand, there is evidence to support the award.

2. Claimant asserts the full board and the superior court erred in determining that he was not entitled to benefits during the period of his incarceration. We agree.

Although claimant entered a guilty plea on November 17,1989, it is clear that judgment was not pronounced upon claimant until April 12, 1990, when claimant was sentenced. After all, claimant had an absolute right to withdraw his guilty plea until he was sentenced on April 12, 1990. As it is said: “OCGA § 17-7-93 (b) grants [a] defendant an absolute right to withdraw a guilty plea ‘before judgment is pronounced.’ Orally announcing the sentence constitutes a pronouncement under that code section. [Cits.]” Anderson v. State, 194 Ga. App. 395 (390 SE2d 637).

Since judgment was not pronounced upon claimant until April 12, 1990, he was entitled to receive benefits, in spite of his incarceration, until that date. Mize v. Cleveland Express, 195 Ga. App. 56 (392 SE2d 275); Howard v. Scott Housing Systems, 180 Ga. App. 690 (2) (350 SE2d 27). The full board and the superior court erred in ruling otherwise.

3. The employer/insurer’s assertion that claimant’s benefits should have been terminated on October 6, 1989, because he was involved in criminal activity at that time is without merit. The record fails to disclose whether claimant earned any money from his illegal acts.

Judgment reversed in Case No. A93A0235. Judgment affirmed in Case No. A93A0270.

Beasley, P. J., and Cooper, J., concur.


author: Johnson, Judge.

text:
    A93A0356.
    JACKETT v. THE STATE.
    (432 SE2d 586)
    Decided May 26, 1993 —
    Reconsideration denied June 18, 1993 —

      Donn M. Peevy, for appellant.

      Gerald N. Blaney, Jr., Solicitor, for appellee.
   Johnson, Judge.

Roger Dale Jackett was convicted of two counts of simple battery by a magistrate sitting as a state court judge. Two days later, the state court entered an order setting aside Jackett’s conviction because the magistrate did not meet the statutory requirements to sit as a state court judge. The state court rescheduled Jackett’s trial on the two simple battery charges. Jackett filed a plea of former jeopardy, which the trial court denied. Jackett directly appeals from the court’s denial of his plea, contending that the double jeopardy provisions of the United States Constitution, the Georgia Constitution and OCGA § 16-1-8 bar the State from retrying him on the simple battery charges.

The federal and state constitutions do not bar a retrial of Jackett because jeopardy did not attach at his first trial, which was not in a court of competent jurisdiction. State v. Martin, 173 Ga. App. 370, 371 (326 SE2d 558) (1985); White v. State, 143 Ga. App. 315, 317-318 (3) (238 SE2d 247) (1977). OCGA § 16-1-8 (d) (1) also specifically provides that a former prosecution before a court which lacked jurisdiction does not bar a retrial on the same charges. Because Jackett’s original trial was before a court which lacked jurisdiction, the trial court did not err in denying Jackett’s plea of former jeopardy. State v. Millwood, 242 Ga. 244, 246 (248 SE2d 643) (1978); Parker v. State, 170 Ga. App. 333, 334 (1) (317 SE2d 209) (1984).

Judgment affirmed.

Blackburn and Smith, JJ., concur.

       The magistrate had not been admitted to practice law for five years as required by OCGA § 15-7-21 (a) (1). .

       A defendant may directly appeal from a denial of a plea of double jeopardy. Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982).


author: Beasley, Presiding Judge.

text:
    A93A0694, A93A0695.
    LOWE v. BARNETT BANK OF ATLANTA; and vice versa.
    (433 SE2d 294)
   Beasley, Presiding Judge.

Lowe, administrator of the estate of Melba Sims Moore, filed this complaint against the Barnett Bank because of the bank’s refusal to pay Lowe the proceeds of joint certificates of deposit (CD’s) owned by Mrs. Moore at the time of her death. Lowe’s position is that Mrs. Moore’s estate, rather than surviving joint tenants, are entitled to the proceeds, because these tenants obtained their rights in violation of OCGA § 7-1-814. Both Lowe and the bank filed motions for summary judgment which the trial court denied. We granted both of their applications for interlocutory appeal. Case No. A93A0694 is Lowe’s appeal. Case No. A93A0695 is the bank’s appeal.

Mrs. Cobb owned four joint CD’s which she purchased from Barnett’s predecessor bank in the name of herself or her sister and one joint CD which she purchased in the name of herself or her husband. Each CD had a separate account number. Two CD’s expressly stated that joint tenants had a right of survivorship; three did not.

On September 7, 1990, Mrs. Cobb went to the East Point branch of the Barnett Bank, where she regularly did business. She was accompanied by her brother and his wife. She met with the branch manager and told her that she wanted to remove the names of her husband and sister from the accounts because they were deceased; that she wanted to add her brother to her safe deposit account, her money market account, and four of the CD’s; and that she wanted to add her sister-in-law to the fifth CD. All the requested changes were made in accordance with the bank’s standard operating procedures.

In order to change the money market account, Mrs. Cobb and her brother signed new signature cards. In order to change the safe deposit account, they signed a new safe deposit agreement.

The status of the CD’s with respect to names and addresses of payees, social security numbers, interest rates, maturity dates, and like information was maintained on the bank’s computer system. All changes in CD’s issued by the bank were made by a central data processing bank office pursuant to instructions received from branch offices, which dealt directly with customers. In order for Mrs. Cobb to substitute live persons for deceased individuals on the CD’s, the bank required her to produce death certificates. However, she was not required to. sign any bank form or other writing authorizing the changes in her CD accounts. She was not required to, and did not, produce the CD’s. Pursuant to Mrs. Cobb’s instructions, the manager typed a memorandum to the data processing office requesting that the information in the computer system be changed to show that the names of the deceased husband and sister had been deleted as co-payees and that other parties had been added. The manager prepared the memorandum in Mrs. Cobb’s presence and gave her a copy of it.

Mrs. Cobb died on September 13, six days later. The data concerning the requested changes was entered in the bank’s computers on September 14, the next day. Lowe appeared at the bank and tried to close Mrs. Cobb’s CD accounts as property owned by her estate at the time of her death, but the bank would not do it. Lowe’s attorney later made written demand for payment of all proceeds of the CD’s. The bank declined and paid the proceeds to the co-payees named by Mrs. Cobb.

Multiple-party accounts are governed by Article 8 of Chapter 1 of OCGA Title 7. OCGA §§ 7-1-810 through 7-1-821. A joint account is a type of multiple-party account which is payable on request to one or more of two or more parties, whether or not mention is made of any right of survivorship. OCGA §§ 7-1-810 (4); 7-1-810 (5) (A). OCGA § 7-1-813 (a) states, in pertinent part, “Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created.”

OCGA § 7-1-814 provides, “The provisions of Code Section 7-1-813 as to rights of survivorship are determined by the form of the account at the death of a party. Once established, the terms of a multiple-party account can be changed only: (1) By closing the account and reopening it under different terms; or (2) By presentation to the financial institution of a modification agreement in a form satisfactory to the financial institution and signed by all parties with a present right of withdrawal.” OCGA § 7-1-816 states, in pertinent part, “Any multiple-party account may be paid, on request, to any one or more of the parties.”

In reliance upon Grady v. DeKalb County Teachers Fed. Credit Union, 152 Ga. App. 86 (262 SE2d 250) (1979) and Rawlins v. Campbell, 199 Ga. App. 472 (405 SE2d 111) (1991), Lowe argues that Mrs. Cobb could not change the joint tenants on the CD accounts without complying with OCGA § 7-1-814. The bank argues that the CD’s ceased to be multiple-party accounts upon the death of Mrs. Cobb’s sister and husband. The bank also argues that when Mrs. Cobb appeared at the bank to change the CD’s, she was the only party with a present right of withdrawal. Lowe does not contest the latter argument but rather maintains that in order to effectuate the changes in the account, written authorization from Mrs. Cobb was required.

We hold that once Mrs. Cobb produced her sister’s and husband’s death certificates and had them removed as joint tenants on the CD accounts, the accounts ceased to be multiple-party accounts subject to the strictures of OCGA § 7-1-814.

This distinguishes Grady and Rawlins, where we held that one joint tenant cannot unilaterally divest another joint tenant of his or her right to make withdrawals from the account. In this case, the deceased joint tenants’ rights were divested by their deaths, not by unilateral act of a co-tenant.

Decided June 1, 1993 —

Reconsideration denied June 18, 1993 —

Roger W. Moister, Jr., Griffin Patrick, for appellant.

Smith, Eubanks, Smith & Darden, Donald D. Smith, for appellee.

Lowe has presented no evidence of any intention on the part of the decedent other than that sums remaining on deposit at her death belong to the surviving joint tenants as against her estate.

Consequently, the bank was entitled to summary judgment.

Judgment in Case No. A93A0694 affirmed. Judgment in Case No. A93A0695 reversed.

McMurray, P. J., and Cooper, J., concur.


text:
    A93A0833.
    HALL et al. v. WORLD OMNI LEASING, INC.
    (433 SE2d 297)
   Beasley, Presiding Judge.

David and Vivian Hall appeal from the grant of summary judgment to World Omni Leasing, Inc. (“World”) in the suit brought against them by World for a deficiency after their leased car was repossessed.

1. In their sole enumeration of error, they contend the grant of summary judgment was error because genuine issues of material fact exist. Although in the enumeration of error they do not explicitly list the issues they allege remain for jury determination, their contentions are discernible from the arguments presented and the record. World’s argument that the enumeration is insufficient does not consider OCGA § 5-6-48 (f), which directs that “[w]here it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, . . . what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the . . . enumeration of errors fails to enumerate clearly the errors sought to be reviewed.” This provision is in conformity with the overriding principle embodied in the legislative statement of the purpose of the Appellate Practice Act “to bring about a decision on the merits of every case appealed.” OCGA § 5-6-30. See Contractors Mgmt. Corp. v. McDowell-Kelley, Inc., 136 Ga. App. 116, 117-118 (1) (220 SE2d 473) (1975). Of course, lack of clarity always creates a risk of miscommunicating to the court a party’s complaint on the merits of its position.

2. The Halls contend because there was no meeting of the minds, a material issue of fact remains whether a valid, enforceable contract was created. In opposition to World’s motion for summary judgment, the Halls submitted their joint affidavit setting forth their version of the facts: On October 27, 1989, they attended an automobile tent sale in Macon. They were approached by a salesman from Regency Toyota, who urged them to purchase a new vehicle and trade their present vehicle, a 1988 Volkswagen Jetta. They informed the salesman they would be interested in purchasing a 1989 Toyota Camry provided they were given a fair allowance on the Volkswagen and their monthly payments did not exceed $300 for a term not greater than 60 months.

The salesman assured them this could be done, and they signed a purchase order in which some numbers were filled in, but the actual amounts involved in the trade were left blank. They also signed several other documents, which the salesman represented to them dealt with financing the car. The salesman had them sign these documents in blank because he said the computers were down. He told them he would contact them later to complete the details but never did so. The salesman positioned the documents for their signatures so as to reveal only the bottom portions containing the signature lines, and they were led to believe that they were purchasing the car.

They made a down payment at the time they signed the blank documents and made a payment in November, still unaware that they had transacted for anything other than a purchase. About the first of December their insurance agent mentioned to them that the car appeared to be leased, but the Halls assured him that was not the case. Sometime in December they received a bill from World, and they contacted the manager at Regency Toyota, who told them it was a straight purchase but was set up like a lease. This satisfied them.

Shortly thereafter, their insurance company informed them that the car definitely was leased. They again contacted Regency’s manager, who this time told them there was nothing he could do; they should have discussed this with the salesman, who was no longer employed by the dealership. The Halls informed World and Regency that they could pick up the car, and that they would consult an attorney. They continued to get bills and statements until the car was repossessed in March.

In support of its motion for summary judgment, World presented the affidavit of Christine Frohock, its Customer Account Supervisor, who averred that she was the custodian of World’s business records and authenticated attached documents, including the lease, notices of repossession, and various other documents establishing that the Halls had defaulted on a vehicle lease agreement for a 1989 Toyota Camry, and that a deficiency balance was owed after the car was repossessed and sold. Citing Fore v. Parnell-Martin Cos., 192 Ga. App. 851 (386 SE2d 723) (1989) as authority, the court granted World’s motion for summary judgment on the ground that no genuine issue as to any material fact existed and World was entitled to judgment as a matter of law.

The Halls appear to argue that because they mistakenly believed they were signing financing documents for a purchase, as well as because they signed documents in blank, the lease agreement is unenforceable because no meeting of the minds occurred. However, when the Halls signed the documents they were completely aware that they were blank as to important terms. They made payments on a contract they purportedly did not see, even when the salesman failed to get back to them to inform them of the terms that were blank when they signed the instruments. “ ‘If a writing is signed with blanks left to be filled in by the other party, the person signing is bound by it. [Cit.]’ [Cit.]” Fore, supra at 853 (2).

The Halls’ contentions are identical to those addressed in Fore, which held that “[i]t is the duty of contracting parties to inform themselves with reference to the subject matter about which they desire to contract; if they fail to do so and a mistake is made owing to their own ignorance and failure to inform themselves, then any injury results from their own conduct. Relief is not available on the basis of a unilateral mistake in the absence of fraud or inequitable conduct or other special circumstances.” (Citations and punctuation omitted.) Id. at 852 (1).

“Where one who can read signs a contract without apprising himself of its contents, otherwise than accepting representations made by the opposite party, with whom there exists no fiduciary or confidential relation, he can not defend an action based on it, or have it canceled or reformed, on the ground that it does not contain the contract actually made, unless it should appear that at the time he signed it some such emergency existed as would excuse his failure to read it, or that his failure to read it was brought about by some misleading artifice or device perpetrated by the opposite party, amounting to actual fraud as would reasonably prevent him from reading it.” (Citations and punctuation omitted.) Green v. Ford Motor Credit Co., 146 Ga. App. 531, 532 (1) (246 SE2d 721) (1978).

Nothing in the record suggests that the Halls cannot read, and no fiduciary or confidential relationship existed between the Halls and the salesman. Even accepting the Halls’ allegations that the contract was presented for their signature in a manner that revealed only the signature portions, they do not allege that the salesman refused to allow them to examine the contract after they requested to do so. On the contrary, it is apparent that they made no effort to read it. This is not such “misleading artifice or device” as amounts to fraud. See Delta Chevrolet v. Wells, 187 Ga. App. 694, 695 (1) (371 SE2d 250) (1988). Moreover, the reasonableness of their belief that the lease agreement was a financing agreement for a purchase is undermined by the fact that the words “lessor,” “lessee” and “co-lessee” are preprinted clearly on the very signature lines they admit seeing.

Decided June 1, 1993 —

Reconsideration denied June 18, 1993 —

Robert S. Slocumb, for appellants.

Fred J. Hanna, Elizabeth C. Whealler, for appellee.

3. Even were we to assume that the elements of fraud were established, the Halls failed to rescind the lease contract and return the car when, in December, they first learned or should have learned that the car was leased. Moreover, although the Halls informed World that it “could come pick up the vehicle,” which arguably could be construed as an attempt at restoration of the benefit of the contract, their conduct following that notification was inconsistent with such a construction. They continued driving the car until March, increasing the car’s mileage to approximately 13,000 miles. “ ‘A contract may be rescinded at the instance of the party defrauded; but, in order to rescind, the defrauded party must promptly, upon discovery of the fraud, restore or offer to restore to the other party whatever he has received by virtue of the contract if it is of any value.’ OCGA § 13-4-60.” Potomac Leasing Co. v. Thrasher, 181 Ga. App. 883, 886 (354 SE2d 210) (1987).

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.

       The affidavit of Frohock originally submitted was an unsigned and unnotarized conformed copy, and based on that affidavit the court denied the motion for summary judgment. World moved for reconsideration and for leave to file a proper affidavit. Leave was granted, a signed and notarized affidavit was filed, and summary judgment was granted on reconsideration based on the new affidavit.


text:
    A93A0860.
    MAJESKE et al. v. JEKYLL ISLAND STATE PARK AUTHORITY.
    (433 SE2d 304)
   Beasley, Presiding Judge.

Plaintiffs Carol and William Majeske appeal the award of the summary judgment and dismissal of their complaint in this action against defendant Jekyll Island State Park Authority to recover damages for personal injuries sustained by Mrs. Majeske resulting from a fall on defendant’s property.

Summary judgment was awarded on the basis that defendant is relieved from liability as a matter of law under the Recreational Properties Act (RPA), OCGA § 51-3-20 et seq. Plaintiffs claim that defendant is specifically exempted from the liability limitations of the RPA under OCGA § 51-3-25 (2), by virtue of a charge imposed on all motor vehicles entering the island by roadway.

The parties entered into a stipulation of facts as follows: Defendant is in the business of tourism, and it advertises and promotes recreational facilities to attract visitors to Jekyll Island. Persons entering the island by roadway in an automobile are charged $1 per vehicle “parking fee” each time they drive onto the island, regardless of the number of persons traveling in the vehicle or the purpose for which the vehicle is entering the island. No fee is charged persons arriving at the island on foot or by boat, aircraft, non-motorized vehicle, or vehicle not required by law to be registered or operated by a licensed operator.

Plaintiffs rented a private home on Jekyll Island for a vacation. They had entered the island by automobile and paid the $1 fee. Mrs. Majeske was injured while stepping down from a footwalk bridge maintained by defendant as she was returning from a walk along the beach with her husband and friends.

1. The purpose of the RPA “is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners’ liability toward persons entering thereon for recreational purposes.” OCGA § 51-3-20. The Act provides that “an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes,” OCGA § 51-3-23, may not be held liable for personal injuries resulting from unsafe or defective conditions existing on the premises. However, any liability which otherwise exists is not limited if the owner imposes a charge for the recreational use of the land. OCGA § 51-3-25 (2); Stone Mountain Mem. Assn. v. Herrington, 225 Ga. 746 (1) (171 SE2d 521) (1969). “Charge” is defined in the Act as “the admission price or fee asked in return for invitation or permission to enter or go upon the land.” OCGA § 51-3-21 (1).

In Hogue v. Stone Mountain Mem. Assn., 183 Ga. App. 378 (1) (358 SE2d 852) (1987), a specified fee was charged for each vehicle entering Stone Mountain Park regardless of the number of occupants. Such fee was held not to constitute a charge for the recreational use of the park. Accord Herrington, supra; Quick v. Stone Mountain Mem. Assn., 204 Ga. App. 598 (420 SE2d 36) (1992); Brannon v. Stone Mountain Mem. Assn., 165 Ga. App. 120 (299 SE2d 176) (1983).

Decided June 3, 1993 —

Reconsideration denied June 18, 1993.

Fendig, McLemore, Taylor & Whitworth, James B. Durham, for appellants.

Michael J. Bowers, Attorney General, Roland F. Matson, John B. Ballard, Jr., Senior Assistant Attorneys General, for appellee.

Plaintiffs attempt to distinguish Hogue, supra (and by implication other cases involving Stone Mountain Park) by evidence that upon payment of the parking fee at Stone Mountain, entrants receive a vehicle sticker permitting them to leave and re-enter the park without additional charge, whereas vehicles entering Jekyll Island must pay the fee with each re-entry. However, the undisputed evidence shows that defendant’s $1 charge is strictly a vehicle parking fee which is imposed only if entering the property in a licensed, motorized ground vehicle. Accord Herrington, supra at 747. The fact that vehicle re-entry is not permitted without additional payment is not evidence that the charge is an admission fee. For the charge to constitute an admission fee it must be established that it is imposed in return for recreational use of the land.

The summary judgment motion was supported by affidavit testimony of defendant’s executive director stating that the facilities are open to the general public and no admission fee is charged for any person entering the park. A parking permit fee of $1 is charged for each vehicle entering the park regardless of the number of occupants or the type of vehicle. No fee is charged for persons entering the island by other means. Appellants have offered no counterevidence giving rise to a triable issue. OCGA § 9-11-56 (e); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Appellee was entitled to summary judgment as a matter of law.

2. In reliance on Cedeno v. Lockwood, Inc., 250 Ga. 799 (2) (301 SE2d 265) (1983), plaintiffs assert the RPA is inapplicable because Jekyll Island is operated primarily to further defendant’s business interests. This theory was neither enumerated as error nor asserted below in opposition to summary judgment. It will not be considered now for the first time.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.

       In a previous order, defendant was granted partial summary judgment with respect to plaintiffs’ theory of wilful failure to guard or warn against a dangerous condition under OCGA § 51-3-25 (1), but it was denied summary judgment on the admission fee theory. Defendant’s subsequent application for interlocutory appeal from that order was denied by this court. Jekyll Island State Park Auth. v. Majeske, A92I0243, July 13, 1992.


text:
    A93A1363.
    SIMPLEX-RAPID di BOSCHIERO v. ITALIA ASSICURAZIONI.
    (433 SE2d 309)
   Blackburn, Judge.

The appellant, Simplex-Rapid di Boschiero, commenced this action in the Superior Court of Fulton County against the appellee, Italia Assicurazioni, to recover under a cargo insurance policy for goods damaged during shipment. The trial court dismissed the action for lack of personal jurisdiction, and this appeal followed.

The record shows that the appellant is an Italian manufacturer whose principal place of business is in Milan, Italy. The appellee (now known as La Fondiaria Assicurazioni S.p.A.) is an Italian insurance company doing business in Florence, Italy. The appellee is not registered to do business in the United States, and does not solicit business from or write insurance in the United States. At the time pertinent to this appeal, it did, however, retain the Great American Insurance Company (Great American), headquartered in New York, as a settling correspondent to survey damaged goods and forward claims made by consignees in the United States.

The insurance policy in this case is a cargo insurance policy written in Italian, issued to yet another Italian company, Crowe S.R.L., a freight forwarder which is not a party to this action. In October 1989, the appellant shipped a spring coil machine, via the freight forwarder, from Milan to Iowa, with an intermediate stop at the Georgia World Congress Center in Atlanta, Georgia. Damage to the shipment was noticed in Atlanta, and the appellant contacted Great American to file a claim under the policy. After a surveyor assessed the damage, the machine was returned to the appellant’s place of business in Italy. In May 1990, the appellee denied the claim, and this action ensued.

OCGA § 9-10-91 provides, in pertinent part, that Georgia courts may exercise personal jurisdiction over any nonresident who: “(1) Transacts any business within this state. ...” This statute requires a nonresident to do certain acts within Georgia before it can be subjected to personal jurisdiction in this state’s courts. In fact, “[i]n Georgia, a due process analysis is appropriate only after it is first established that the nonresident defendant committed one of the acts described in the Long-Arm Statute.” McDonnell v. Roy E. Beatty & Assoc., 203 Ga. App. 807, 808-809 (1) (418 SE2d 95) (1992).

In the instant case, we agree with the trial court that the appellee transacted no business in this state such that the Georgia Long Arm Statute conferred personal jurisdiction over it. As noted above, the appellee was not authorized to transact business in this state, and it did not solicit business from the United States. Its place of business actually was in Italy, and the insurance policy in question was issued in Italy to another Italian company. The appellant also is an Italian company with its place of business in Italy. The only contact either party had with Georgia was the intermediate stop of the shipment in this state, which was done at the unilateral instance of the appellant.

Decided June 4, 1993 —

Reconsideration denied June 18, 1993 —

Drew, Eckl & Farnham, John G. Blackmon, Jr., Virginia A. Green, for appellant.

Fellows, Johnson, Davis & Labriola, Henry D. Fellows, Jr., Stephen T. Labriola, for appellee.

With regard to obtaining personal jurisdiction over a nonresident on the basis of transacting any business within this state, the Georgia Long Arm Statute “has been interpreted to mean that ‘purposeful acts’ must have been performed by the defendant to tie it to the State. . . .” Mayacamas Corp. v. Gulfstream Aerospace Corp., 190 Ga. App. 892, 893 (380 SE2d 303) (1989). The appellee in this case has performed no acts, much less “purposeful acts,” to tie itself to Georgia.

The appellant contends that the appellee’s designation of Great American as its settling correspondent, which apparently had a Georgia telephone referred to in the policy, constitutes a transaction of business within this state. However, it is uncontroverted that Great American was retained only as a settling correspondent, for the limited purpose of receiving claims and transmitting them to the appel-. lee, and was without authority to settle any claims. Moreover, despite Great American’s Georgia telephone, all contact between the appel- ■ lant and Great American, and between the appellee and Great American, was conducted with Great American’s New York office, including the appellant’s attempt to have Great American acknowledge service on behalf of the appellee. Under these circumstances, the appellee’s use of Great American as a settling correspondent for claims arising in the United States was insufficient to tie the appellee to this state.

In summary, the Italian appellee insured a non-party Italian freight forwarder, which, at the direction of the Italian appellant, undertook to ship the appellant’s goods to Iowa with an intermediate stop in Atlanta, where the goods were discovered to be damaged. Under these facts, the appellee insurer transacted no business within Georgia, and the trial court thus properly dismissed the action due to lack of personal jurisdiction over the appellee.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


text:
    A93A1332.
    ATLANTA CASUALTY COMPANY v. CASH et al.
    (433 SE2d 311)
   Blackburn, Judge.

This appeal is from the trial court’s award of summary judgment to appellees, Cash, Stewart, and Green (referred to collectively as defendants), and its denial of summary judgment to appellant, Atlanta Casualty Company. The facts are undisputed.

Atlanta Casualty issued an insurance policy to Randy Coker which provided coverage for a 1983 Chevrolet Cavalier owned by Randy Coker. On January 22, 1990, Randy Coker and Cheryl Coker entered into a named driver exclusion agreement with Atlanta Casualty. This agreement provided that, “in consideration of the premium charged, it is hereby agreed that all coverages except personal injury protection are not afforded by this policy while any vehicle is being used, driven, operated or manipulated by, or under the care, custody or control of Cheryl A. Coker.” Both Randy Coker and Cheryl Coker agreed and consented to the named driver exclusion by placing their signatures on it. Randy Coker’s application for automobile insurance also identified Cheryl Coker as an excluded driver. It is further undisIputed that Cheryl Coker was a high risk driver and that Randy Coker obtained insurance with Atlanta Casualty for a reduced premium because he and his wife, Cheryl Coker, agreed that she would be an excluded driver.

Despite the fact that no insurance coverage, except PIP benefits, was provided if Cheryl Coker operated the vehicle, on October 11, 1990, Cheryl Coker did operate the vehicle and did collide with a taxi cab occupied by Cash and Stewart, and operated by Green. The defendants then filed a claim for injuries sustained in the collision with Atlanta Casualty, upon which Atlanta Casualty based the underlying declaratory judgment action. “The essence of the dispute between the parties is the validity of a driver exclusion endorsement which excluded coverage of [Randy Coker’s vehicle] when driven by [Cheryl Coker].” Miley v. Fireman’s Fund Ins. Co., 176 Ga. App. 527 (336 SE2d 583) (1985).

1. The trial court determined that the driver exclusion endorsement was violative of public policy and the compulsory insurance law of Georgia. On appeal Atlanta Casualty argues that the trial court’s determination is contrary to law. Recently, in Fountain v. Atlanta Cas. Co., 204 Ga. App. 165 (419 SE2d 67) (1992), we interpreted a driver exclusion endorsement worded exactly as the driver exclusion endorsement now before us. Therein, we determined that the exclusion did not violate public policy and was enforceable. Id. at 167. The defendants argue that Fountain, supra, is distinguishable on its facts because, therein, the plaintiff was the excluded driver, and not a third party, as in the present case. However, if the driver exclusion endorsement violates public policy it would be invalid under any circumstances. It would be inapposite to find that an exclusion does not violate public policy in some circumstances, but, in other circumstances, does violate public policy. Therefore, we must follow the holding of Fountain, and reverse the trial court’s award of summary judgment to defendants.

Decided June 4, 1993 —

Reconsiderations denied June 21, 1993 —

Bentley, Karesh & Seacrest, Gary L. Seacrest, Gerald P. Ruleman, for appellant.

Randy G. Coker, Cheryl A. Coker, pro se.

Farrar, Farrar & Hennesy, Joseph J. Hennesy, Jr., William V. Evans, for appellees.

2. In Atlanta Casualty’s second enumeration of error, it asserts that the trial court erred in denying its motion for summary judgment. Atlanta Casualty argues that the driver exclusion endorsement is clear and unambiguous and should be enforced as written. We agree. In Miley, supra, we determined that a driver exclusion endorsement supported by consideration was enforceable. In the present case, the wording of the endorsement identifies the consideration as the “premium charged.” As stated above, it was uncontested that Randy Coker obtained his insurance at a reduced premium by agreeing to exclude Cheryl Coker as a driver. Therefore, the driver exclusion endorsement was supported by consideration and is enforceable. The trial court should have granted Atlanta Casualty’s motion for summary judgment.

Judgment reversed.

McMurray, P. J., and Johnson, J., concur.


text:
    A93A0188.
    PITTS v. BANK SOUTH CORPORATION.
    (433 SE2d 96)
   Johnson, Judge.

Joanne M. Pitts and Jacob Mitchell entered into a motor vehicle installment sales contract with a car dealership. The contract was assigned to Bank South Corporation. Pitts defaulted on the installment payments, and the bank repossessed the vehicle. The vehicle was sold, and the bank filed this lawsuit against Pitts and Mitchell to recover a deficiency balance. The bank moved for summary judgment, which the trial court granted in part. Pitts appeals, contending that a genuine issue of fact remains regarding whether she received legal notice under OCGA § 10-1-36.

OCGA § 10-1-36 provides: “When any motor vehicle has been repossessed after default . . . the seller or holder shall not be entitled to recover a deficiency against the buyer unless within ten days after the repossession he forwards by registered or certified mail to the address of the buyer shown on the contract ... a notice of the seller’s or holder’s intention to pursue a deficiency claim against the buyer. . . . This Code section is cumulative of Part 5 of Article 9 of Title 11 and provides cumulative additional rights and remedies which must be fulfilled before any deficiency claim will lie against a buyer.”

The statute does not require that the debtor actually receive notice. See Calcote v. C & S Nat. Bank, 179 Ga. App. 132, 133 (2) (345 SE2d 616) (1986). Therefore, Pitts’ contention that a genuine issue of material fact remains regarding whether she received notice is without merit.

Pitts also argues, however, that a question of fact remains regarding whether the notice was actually sent. We therefore turn to consider whether the evidence in the record was sufficiently conclusive to resolve this issue against Pitts.

In support of its motion for summary judgment, the bank attached a copy of a notice of repossession sent to Pitts and the affidavit of its legal adjuster who testified that the notice was sent to Pitts via certified mail within ten days of the date of repossession. Such notice was mailed to the same address shown on the contract. Although Pitts did not present any evidence to controvert the facts contained in the legal adjuster’s affidavit, the bank did not include a copy of the proof of mailing, i.e., the certified mail receipt. This postal service receipt showing that the letter was mailed as required by the statute does not appear anywhere in the record. Nor is there any evidence in the record to show either the date of repossession or the date of mailing. The absence of any proof that the notice was sent by certified mail coupled with evidence that it was never received, left the trial court with a disputed fact regarding whether the notice was properly sent in compliance with OCGA § 10-1-36. We find that the statement in the legal adjuster’s affidavit indicating that she sent notice in compliance with the statute is not a statement of fact, but is a conclusion of law.

“On summary judgment, movant has the burden of showing the nonexistence of any material fact and that [it] is entitled to a judgment as a matter of law. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.” (Emphasis in opinion.) (Citations and punctuation omitted.) Sunamerica Financial v. Peachtree Street, Inc., 202 Ga. App. 790, 793 (2) (a) (415 SE2d 677) (1992).

Decided June 22, 1993.

John C. Fowler, for appellant.

Wallace & de Mayo, Paul J. Gallo, Adams, Clifton & Sanders, Janney E. Sanders, for appellee.

The evidence as it stands in this record does not authorize the trial court’s decision granting suminary judgment to the bank, and we must reverse.

Judgment reversed.

Blackburn and Smith, JJ., concur.

       We note that there is no evidence in the record indicating that Pitts had changed her address from that listed on the contract.