text:
    A92A1669.
    SMITH v. MEMORIAL MEDICAL CENTER, INC. et al.
    (430 SE2d 57)
   Andrews, Judge.

Herbert Smith, Sr., individually and as administrator of the Estate of Herbert Eugene Smith, Jr., appeals the trial court’s grant of summary judgment to appellees/defendants Memorial Medical Center, Inc., and Robert Swicord, M.D., in this medical malpractice suit arising out of his son’s alleged wrongful death. He enumerates four ways in which the trial court erred in granting summary judgment.

On December 18, 1990, Herbert Smith, Sr., individually and as administrator of the estate of Herbert Smith, Jr., filed a complaint against Memorial Medical Center, Swicord and a third doctor, Edward Stringer, who was subsequently dismissed from the action. Smith claimed that defendants were liable to him for pain and suffering, funeral and medical expenses and the full value of the life of his son for actions occurring on December 6, 1990.

On February 6, 1992, Memorial Medical Center and Swicord filed a motion for summary judgment on the basis that Smith was not the proper party to bring the wrongful death action since Edna Lechner was the spouse of the decedent at the time of his death.

On February 24, 1992, Ms. Lechner filed a motion to intervene as a plaintiff in the action. In her motion she stated that notwithstanding Smith’s claims, she was the surviving spouse of the decedent and, as such, was the proper party to bring the wrongful death action. She stated that on December 5,1991, Smith had entered into a settlement agreement with Stringer and that she did not receive any portion of the settlement funds. She claimed that the disposition of the remaining action would impair her ability to protect her interest in the case and that she also had an interest in the proceeds the estate recovered in the action. Attached to her motion was a proposed amended complaint in which she simply duplicated Smith’s complaint and added her name as a party plaintiff entitled to recovery.

On March 4, 1992, Smith, in his individual capacity, dismissed without prejudice his individual wrongful death claim as to all parties. The dismissal stated that Smith was dismissing the case without prejudice and was “reserving the right to refile same in accordance with Georgia law. Plaintiff Herbert E. Smith, Sr., as administrator of the estate of Herbert Eugene Smith, Jr., deceased, does not dismiss his action against the said defendants.”

On March 5, 1992, the court held a hearing on Lechner’s motion to intervene. On March 30, the court granted Lechner’s motion to intervene and on April 6, the court granted defendants’ motion for summary judgment as to Smith’s wrongful death claim. In the order, the court held that Smith was subject to the motion for summary judgment and was still a party to the action since he had failed to move the court for an order to drop him individually as a party under OCGA § 9-11-21. Thus, the court granted defendants’ motion for summary judgment because Lechner, the surviving spouse, and not Smith, was the proper party to bring the wrongful death action.

1. In his first two arguments, Smith claims that the superior court erred in granting summary judgment against him since he had already filed a voluntary dismissal without prejudice of his wrongful death claim. Smith contends that the trial court erred in holding that Smith’s wrongful death claim remained pending since he failed to move the court to drop him pursuant to OCGA § 9-11-21. We agree and reverse.

At the outset, we recognize that an individual’s claim for wrongful death and an estate’s claim for the decedent’s pain and suffering are distinct causes of action. See generally OCGA §§ 51-4-2 (a); 51-4-5 (b); Complete Auto Transit v. Floyd, 214 Ga. 232 (2) (104 SE2d 208) (1958). The plaintiff in his individual capacity and in his capacity as administrator are legally different persons. Stiltjes v. Ridco Exterminating Co., 197 Ga. App. 852, 853 (399 SE2d 708) (1990), aff'd 261 Ga. 697 (409 SE2d 847) (1991). Thus, Smith could dismiss the wrongful death claim and leave pending the estate’s claim for pain and suffering.

Under OCGA § 9-11-41 (a) a party may dismiss an action without prejudice by filing a written notice of dismissal at any time before verdict, if no counterclaim has been pleaded by a defendant. After this dismissal, a court has no power to order reinstatement of the action. See Matthews v. Riviera Equipment, 152 Ga. App. 870 (1) (264 SE2d 318) (1980). Here, the trial court’s entry of summary judgment on April 6 with respect to a claim which had already been dismissed was improper since Smith’s voluntary dismissal operated to divest the court of jurisdiction. “ ‘A suit dismissed without prejudice pursuant to [OCGA § 9-11-41] leaves the situation the same as if the suit had never been brought in the first place.’ ” Matthews, supra.

Smith’s dismissal was effective since Lechner had not filed an affirmative claim for relief against him at the time he filed the dismissal and no affirmative claim against him was pending. Although in Lechner’s motion to intervene she claimed that she was entitled to some portion of the estate’s recovery and to portions of the settlement, she did not indicate that Smith’s interests in the suit were adverse to hers. When she filed her objection to Smith’s dismissal, she again failed to articulate any claim for affirmative relief against him. At no point prior to Smith’s dismissal did Lechner filed a proposed cross-claim or any pleading against him. Furthermore, Lechner’s motion to intervene was not granted until after Smith filed his dismissal. See generally Kiser Co. v. Bonnett, 157 Ga. 555 (122 SE 338) (1924).

On April 13, seven days after the summary judgment motion was granted, Lechner filed an “emergency motion for disbursement of settlement funds and restraining order” in which she formally claimed, for the first time, that Smith was indebted to her for settlement funds he had received which were rightfully hers. She claimed that she became aware of Smith’s improper handling of the money on April 9 — an apparent explanation for her earlier failure to assert an adverse claim.

Although there are exceptions to a plaintiff’s right to voluntarily dismiss a suit under OCGA § 9-11-41 (a), no exception applies here. Unlike Worthen v. Jones, 240 Ga. 388 (240 SE2d 842) (1977), in which the movant/intervenor attached a cross-claim to the motion to intervene, in the instant case, Lechner had no demonstrated adverse interest to Smith at the time she filed her objection and there was no claim for affirmative relief against him. See also Moore v. Memorial Medical Center, 258 Ga. 696 (373 SE2d 204) (1988); see generally Ramos v. Vourtsanis, 187 Ga. App. 69 (369 SE2d 344) (1988); compare Mote v. Helmly, 169 Ga. App. 475 (313 SE2d 493) (1984). If the filing of an affirmative claim after the filing of a voluntary dismissal could impede the dismissal, the plaintiff’s right to dismiss under OCGA § 9-11-41 (a) would be meaningless.

Decided March 9, 1993 —

Reconsideration denied March 19, 1993 —

The Taggart Law Firm, Thomas R. Taggart, Bennett, Callahan & Schloegel, Michael T. Bennett, Jennifer T. Schloegel, for appellant.

Hunter, Maclean, Exley & Dunn, Lee C. Mundell, T. Mills Fleming, Oliver, Maner & Gray, William P. Franklin, Jr., Beckmann & Pinson, William H. Pinson, Jr., Bergen & Bergen, Joseph B. Bergen, Frederick S. Bergen, for appellees.

The trial court’s reliance on OCGA § 9-11-21 was misplaced. A plaintiff may dismiss his complaint without leave or order of the court. See generally Trusco Finance Co. v. McGee, 206 Ga. 382 (57 SE2d 184) (1950). Accordingly, the court’s entry of summary judgment was improper.

2. Because of our conclusion that the trial court erroneously granted summary judgment, we need not address the substantive merits of such order.

Lechner’s emergency motion for supersedeas bond and motion to transfer and Smith’s motion to strike are denied. Smith’s motion for disqualification of counsel is improperly before this court and will not be considered.

Judgment reversed.

Birdsong, P. J., and Beasley, J.,-concur.

       Memorial Medical Center cites Stenger v. Grimes, 260 Ga. 838 (400 SE2d 318) (1991), and Ridco Exterminating Co. v. Stiltjes, 261 Ga. 697 (409 SE2d 847) (1991). Because the issue of joinder of claims is separate from the question before us, these cases are not dispositive of the instant issue. Furthermore, our resolution of the instant issue is separate from the issue of Smith’s right to refile his action.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A92A1895.
    ADAMS v. THE STATE.
    (430 SE2d 35)
   Birdsong, Presiding Judge.

This is an interlocutory review of the order of the trial court in a child molestation and sodomy case admitting similar transaction evidence where the similarity in essence is claimed to have been established by the introduction of certified copies of certain documents obtained from the State of Indiana and by an uncontested statement in place by the prosecutor as to the facts of the case at bar. Appellant is William A. Adams a/k/a William A. Adams, Jr., William Adams, and William Albert Adams, Jr.

Appellant is charged with two counts of aggravated child molestation, two counts of aggravated sodomy, and one count of child molestation. It is specifically averred in each of the molestation counts that the victim (who was appellant’s stepson) was a child under 14 years of age and that each offense was committed “with intent to arouse and satisfy the sexual desires of said accused.” The State established that the victim in this case was four years old. The prosecutor stated in his place, without objection or contradiction, that the child, after identifying a penis on a male doll as his “ding-ding,” stated appellant had the victim “play with his ding-ding,” “put his ding-ding on [the victim’s] butt,” and made the victim “lick [appellant’s] ding-ding.”

The documents admitted to establish the prior similar transaction offense include an Indiana Information (accusation) for child molesting, Class C felony; minutes of the Indiana Superior Court; a Plea Bargain Agreement and Disclosure Statement; and an Abstract of Judgment from the Indiana Department of Corrections, certified by the St. Joseph County (Indiana) Superior Court Clerk. Although no witness was called to testify as to the circumstances surrounding the Indiana offense of child molestation revealed in the official records admitted before the court, and the prosecutor in the case at bar made no statement in place as to the circumstances surrounding the Indiana offense, the trial court admitted the documents as similar transaction evidence concluding that the ruling in Miller v. State, 165 Ga. App. 487, 488 (299 SE2d 174) constitutes an exception to the general rule in Stephens v. State, 261 Ga. 467 (405 SE2d 483). Held:

1. (a) Pursuant to OCGA § 24-1-4, we take judicial notice in its totality of the following law of the sovereign State of Indiana, to-wit Indiana Code § 35-42-4-3, captioned Child Molesting, as published by authority in Title 35, Book 2, Burns Indiana Statutes Annotated Code Edition. Subsection (b) of this judicially noticed Code section pertinently provides: “A person who, with a child under twelve [12] years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, commits child molesting, a class C felony.” (Emphasis supplied.) We also take judicial notice that § 35-42-4-3 reports on its face that it was last modified in 1981 by, P. L. 301, § 1. (Although not made a part of this record, the State announced on the hearing record that they were in possession of a certified copy of Indiana Code § 35-42-4-3, and argued that the trial court could take judicial notice of that statute during trial.)

(b) The Indiana documents introduced in evidence contain much irrelevant information, as noted by the trial court, including information that two other “causes” were dismissed. However, such a deficiency is easily corrected by excising the offensive material in a suitable manner. These documents do, however, contain the following relevant information on their face: (1) An “Information For Child Molesting, Class C Felony” (the information count avers that on April 19, 1984, “William Albert Adams, Jr. did perform fondling and touching with Moniko Lattimer, a child who was then and there under the. age of twelve (12) years, with intent to arouse or satisfy the sexual desires of William Albert Adams, Jr.,” said offense being in violation of Indiana Code § 35-42-4-3.) (Emphasis supplied.) (2) Minutes of the St. Joseph Superior Court of Indiana (the minutes show appellant initially entered a plea of not guilty). (3) A Plea Bargain Agreement And Disclosure Statement, bearing appellant’s signature as William A. Adams, Jr., together with an attached “Certificate of Counsel,” signed by the attorney for defendant (this document reveals, inter alia, that appellant was 18 years of age at the time of his plea, that he agreed to plead guilty in cause number 24637, child molesting, a Class C felony, and it lists the various constitutional rights which appellant would retain if he chose to adhere to his plea of not guilty. The document also contains the following express statement by appellant: “I know that the court will not ordinarily accept a plea of guilty from anyone who claims to be innocent, and I make no claim of innocence. I stand prepared to state to the court the conduct that I believe makes me guilty of the offense to which I wish to plead guilty.” (4) An Indiana Abstract of Judgment form (establishing that William A. Adams, Jr. was found guilty of child molesting, a Class C felony, in cause no. 24637 and sentenced by the superior court), which was certified by the Indiana Superior Court Clerk as true and correct.

(c) An accepted and entered plea of guilty is the strongest proof of guilt known in the law. Thus, the admitted Indiana documents conclusively establish that William Albert Adams, Jr. a/k/a William A. Adams, Jr., at age 18 (the age of majority in Georgia pursuant to OCGA § 39-1-1 (a)) committed, was convicted of, and sentenced for, the felony offense of child molestation against a child of tender years by fondling and touching said child with the intent to arouse or satisfy the sexual desires of the said Adams. See generally 21 AmJur2d, Criminal Law, § 490 (“[A] plea of guilty is an admission or a confession of guilt, and as conclusive as a verdict of a jury; it admits all material fact averments of the accusation.”).

2. (a) Although it was held in Stephens, supra, that the trial court erred by permitting the State to introduce a certified copy of his prior conviction for the sale of cocaine and failing to offer any other evidence of the commission of the sale in order to present proof of the similarity at trial, as recognized by the trial court, in Miller, supra, this court citing Phelps v. State, 158 Ga. App. 219, 220 (279 SE2d 513) held, and has continually applied for the last decade, the well-established rule that “[t]he sexual molestation of young children, regardless of sex or type of act, is sufficient similarity to make the evidence admissible.”

(b) The object of all legal investigation is the discovery of the truth, and the rules of evidence are framed to facilitate this prominent purpose. OCGA § 24-1-2. It has long been recognized as necessary to achieve this goal that “[t]he exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.” Johnson v. State, 242 Ga. 649 (3) (250 SE2d 394); Oller v. State, 187 Ga. App. 818, 821 (2) (371 SE2d 455). Of all the sex crimes imaginable, nowhere is a liberal extension of the rule more necessary to facilitate the search for truth than in the sordid area of sex crimes committed against children, particularly those of tender age whose inability to speak for themselves makes them the most vulnerable prey to the most dispiteous of criminal depredation. Thus, this court acknowledged the existence of a special rule, applicable to those cases where an accused is being tried for crimes, the substance of which involves the sexual abuse of a child and where the similar transaction evidence likewise involves some form of sexual abuse of a child. This established rule was restated succinctly in Oller, supra at 820 (2), as follows: “The sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts perpetrated upon them, is of sufficient similarity to make the evidence admissible” (emphasis supplied) when the accused is being tried for one or more crimes involving some form of sexual abuse of a child.

The reason for this rule rests not only in the legal difficulty encountered with a child victim but because a sexual offense committed against a young child requires a special “la[s]civious motivation or bent of mind which generally will have some probative value in determining an accused’s motivation or bent of mind in a subsequent trial for child molestation.” Oller, supra at 821 (2). That is, it requires a unique bent of mind for an accused to desire to satisfy the sexual desires of a young child or his own sexual desires through the medium of using a young child’s body in some form. The virulent inclination is the use of a child as a sexual object; therefore, any form of prior sexual abuse committed against any young child whatever the variety of means or salacity of detail, and regardless of that child’s sex, is highly relevant and material in determining the bent of mind, motive and intent of an accused. It is a matter of common knowledge that many sex offenders of adults would never commit such an act against a child of tender years and would glean no sexual satisfaction from the perpetration of such an act. Because of this uniqueness of sexual bent of mind and the nature of the specific intent of sexual gratification involved, evidence of sex crimes of any kind against children is sui generis in nature; it has a particularly significant relevance in proving such bent of mind by the perpetrator in regard to any pending charge of sexual abuse of children. Thus, the prima facie showing of similarity necessary to establish the requisite degree of relevance in a case involving some form of sexual abuse against a young child arises per se and is evidenced per force by proper proof of the commission of any type of prior sex crime against any young child.

(c) We must now determine whether this established and rational rule of reason, which we apply narrowly to those cases involving the sexual abuse of children, has been restricted severely in its application by the decision of the Supreme Court in the case of Stephens, supra, and its progeny, to the extent that the introduction of a certified copy of appellant’s conviction for some type of sex crime against a young child of any sex will no longer constitute adequate proof of similarity so as to take the issue to the factfinder for adjudication.

3. (a) We find that Stephens, supra, and its progeny, are distinguishable from this case, as this case involves a recognized exception to the rule announced in Stephens. Also compare Moore v. State, 202 Ga. App. 476, 479 (2b) (414 SE2d 705) (dictum). In cases involving the sexual abuse of young children, similarity sufficient to warrant introduction in evidence is shown if the evidence introduced, in whatever admissible form that evidence may take, establishes that a prior sexual abuse offense of any type was committed by the accused upon a child, particularly one of tender years as occurred in this case, regardless of the sex of that child vis-a-vis the sex of the current child victim. However, we caution that this exception pertains only to the third prong of the three affirmative showings required by the Supreme Court in Williams v. State, 261 Ga. 640 (409 SE2d 649).

Williams, 261 Ga., supra at 642, requires that the affirmative showing by the State, as to each independent offense or act it seeks to introduce, that: (1) the evidence is being admitted for a permissible purpose and is relevant thereto; (2) there is sufficient evidence to establish the accused’s identity as the perpetrator of said offense or act; and, (3) there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. Id.; Stephan v. State, 205 Ga. App. 241, 243 (2) (422 SE2d 25). Moreover, the trial court must make a determination on the record that each of these required affirmative showings has been made (Maxwell v. State, 262 Ga. 73, 75, n. 2 (414 SE2d 470) and accompanying text); these determinations must be made after a USCR 31.3 (B) hearing and before the evidence of a similar transaction is presented to a jury (Williams, 261 Ga., supra at 642 (2) (c); Maxwell, supra at 75 (2); Stephan v. State, supra at 243 (2)); see generally Hansen v. State, 205 Ga. App. 604, 605 (1) (423 SE2d 273); USCR 31.2 and 31.3. To insure that the evidence of similar transaction is not being introduced solely to raise an improper inference as to the accused’s character, we have repeatedly tested the similar transaction evidence for legal relevance; that is, to show that the legitimate purpose for which it is being introduced, such as intent, “identity, motive, plan, scheme, bent of mind [or] course of conduct, outweighs its prejudicial impact.” Oller, supra at 819; accord: Campbell v. State, 234 Ga. 130, 131-132 (214 SE2d 656) (prior armed robberies; regardless of similarity, evidence of separate offenses should not be admitted unless prejudicial impact outweighed by its relevance); Greer v. State, 201 Ga. App. 775 (1) (412 SE2d 843); Pinson v. State, 201 Ga. App. 555 (411 SE2d 564); Boynton v. State, 197 Ga. App. 149, 150 (1) (397 SE2d 615); Williams v. State, 194 Ga. App. 822 (392 SE2d 297); Roney v. State, 192 Ga. App. 760, 762 (386 SE2d 412); Guffey v. State, 191 Ga. App. 501, 503 (2) (382 SE2d 202). We believe that invoking this test as a requirement for the trial court to make on the record, when admitting similar transaction evidence under Williams, 261 Ga., supra, will provide sufficient safeguard, when coupled with appropriate instructions to the jury as hereafter clarified and discussed, to ensure that the rights of the accused to a fair trial are not placed in jeopardy when this similar transaction exception is employed in cases involving the sexual abuse of children. Moreover, this test will assist the courts in determining, consistent with the first prong of the Williams test (Williams, 261 Ga., supra at 642), whether the similar transaction evidence in fact is being introduced for a proper purpose or merely to raise an improper inference as to the accused’s character.

(b) We further find that all cases of this court and of the Supreme Court which considered the introduction of similar transaction evidence in cases other than those pertaining to the sexual abuse of children are distinguishable and not controlling. See, e.g., Stephens, supra; Screven v. State, 203 Ga. App. 821 (419 SE2d 155); Sisroe v. State, 203 Ga. App. 64, 65 (1) (416 SE2d 141) (cocaine possession with intent to distribute); and Little v. State, 202 Ga. App. 7 (413 SE2d 496). Conversely, we find that none of the cases of this court dealing with the sexual offense exception has been overruled sub silentio by Stephens, supra, or Williams, 261 Ga., supra, as with other cases generally referred to in Sisroe, supra.

(c) Pickelseimer v. State, 154 Ga. App. 223 (267 SE2d 845), which frequently has been distinguished, likewise is distinguishable from this case; it applied the balancing test discussed in Oller and Guffey, but concluded that the probative value of appellant’s 1961 statutory rape conviction as to appellant’s intent, motive, plan, scheme, and bent of mind was marginal at best and could not outweigh the highly prejudicial effect of the conviction on the jury; this conclusion was reached, however, from the court’s express finding that the evidence was not being introduced for a permissible purpose but in order to prejudice the jury and convince them that the accused was guilty merely because he was the type of person who sexually abuses children. We find nothing in the record forwarded to us to review that would support a finding that this evidence is being introduced for the impermissible purpose of prejudicing the jury merely by introducing appellant’s bad character in evidence. Moreover, to the extent, if any, that the sexual offense rule and balancing test as applied in Pickelseimer, supra at 224, might in some manner conflict with the sexual offense rule and balancing test as recognized and applied in Oller and Guffey, it will no longer be followed.

(d) In subsequently making the three determinations of Williams, 261 Ga., supra, the trial court should take into consideration the following: As to prong 1 — permissible purpose — the State has expressly shown on the record that it is offering the evidence of similar transaction “to show defendant’s lustful intent and his bent of mind” (see generally Williams, 261 Ga., supra; Oller, supra); the trial court must now make an affirmative determination as to the sufficiency of this showing on the record. As to prong 2 — identity of perpetrator — the trial court will make an affirmative showing on the record whether the proffered evidence of similar transaction sufficiently establishes appellant as the perpetrator of the Indiana offenses. See generally Oller, supra at 820, citing Glass v. State, 181 Ga. App. 448 (352 SE2d 642) (concordance of name as evidence of identity); Moore, supra at 479 (2b) (perpetrator identity; comparing accused’s signatures). We note that appellant’s counsel has made an admission on the hearing record that: “My client was 18 at the time this [the Indiana offense] happened. . . . And the face of the indictment from Indiana does not give us enough information. ... We have no idea from the face of this indictment [Indiana Information] what the acts were that he was accused of doing. . . . This indictment [Indiana Information] would not be sufficient ... to demonstrate any type of similarity between the charges he’s charged with here today and what he pled guilty to back in Indiana.” (Emphasis supplied.) The identity of appellant as the perpetrator of the offense was thereby conclusively established by counsel’s admission in judicio of this fact. Compare Lingerfelt v. State, 255 Ga. 180 (3) (336 SE2d 250); Lamb v. Decatur Fed. &c. Assn., 201 Ga. App. 583, 588 (411 SE2d 527). Further, appellant has elected not to raise the issue of lack of identity in this appeal. Nevertheless, the trial court shall make the requisite determination on the record as to the issue of identity. In doing so, the trial court may rely upon this admission in judicio, unless in its discretion it allows it to be withdrawn, and the other factors above discussed, such as the concordance of name test and signature comparison test. As to prong 3 — sufficiency of similarity — the trial court will make a determination on the record again regarding this prong utilizing the law as above discussed. Compare Smith v. State, 206 Ga. App. 557 (426 SE2d 23). If the three prongs of Williams, 261 Ga., supra, are met, as above discussed, and the trial court has placed its determinations on the record, the trial court shall then apply the balancing test of Oller, supra, and Guffey, supra, to determine legal relevancy, considering all relevant information then before it, when balancing probative value against prejudicial impact giving due consideration to the established rule of law in Oller, supra. This latter test, like the determination in the first prong of Williams, supra (permissible purpose), is solely for the trial court’s determination as an issue of law.

(e) However, as to the third prong (similarity) of Williams, 261 Ga., supra, the Supreme Court has, in its ruling in Stephens, supra at 468 (6), clarified that after the State has made a prima facie showing of similarity or logical connection, as above discussed, before the trial court so as to enable the evidence to be introduced before the jury, the State also must “present proof on that issue at trial.” Id. at 469. The jury is required, based on proper instruction and before it can consider the evidence of similar act or transaction for the limited purposes for which the trial court has instructed that the evidence can be considered, to first find there is a sufficient similarity or logical connection between the independent crime and the offense charged (such that proof the defendant committed the former tends to prove the accused also committed the latter). Id. Although Stephens, supra, does not address the second prong of Williams, 261 Ga., supra (identity of perpetrator), by requiring that there must be evidence that the defendant was in fact the perpetrator of the independent crime, this issue too should normally be submitted to the jury under proper instruction. See Williams, 261 Ga., supra at 642 (c). That is, the jury normally should be instructed that before they can consider the independent crime for the limited purpose for which the evidence has been admitted they must also find sufficient evidence exists to establish that the defendant was in fact the perpetrator of the independent crime. See Stephens, supra at 469 and n. 2. (Note: If the trial court considers and does not allow appellant to withdraw the admission in judicio of the fact of appellant’s identity, an instruction as to the effect of such an admission should also be given to the jury in this case.) The necessity for presenting evidence of the offender’s identity to the factfinder was emphasized by the Supreme Court in Williams, 261 Ga., supra at 642 (c) where it was stated: “The state must present the trier of fact with evidence establishing both that the accused committed an independent offense or act and that the connection and/or similarity between that offense or act and the crime charged is such that proof that the accused committed the former tends to prove that the accused also committed the latter.” (Emphasis supplied.) Of course, presenting a jury with such evidence serves no useful purpose unless the jury also is given adequate instructions regarding these issues of fact they must resolve from the evidence before they can consider the similar act or transaction for the limited purpose for which they were instructed such evidence was introduced. Moreover, providing the jury with adequate instructions as to the admission of any evidence of similar or logically connected offenses or transactions is necessary in the interest of justice and is the legal price that must be paid for its admission before the jury regardless of the nomenclature of crime (s) for which the defendant is currently being tried.

Decided March 3, 1993 —

Reconsideration denied March 19, 1993 —

Claudia S. Saari, for appellant.

J. Tom Morgan, District Attorney, Anne G. Maseth, Lee Anne Atkins, Elizabeth W. Morn, Assistant District Attorneys, for appellee.

The ruling of the trial court is vacated and this case is remanded for reconsideration of evidence admissibility consistent with this holding.

Judgment vacated and case remanded with direction.

Pope, C. J., McMurray, P. J., and Andrews, J., concur. Beasley, J., concurs in Divisions 1 and 2 and in judgment. Carley, P. J., Cooper, Johnson and Blackburn, JJ., concur in judgment only.


author: Cooper, Judge.

text:
    A92A1989.
    A92A1990.
    DYNAMIC CLEANING SERVICE, INC. et al. v. FIRST FINANCIAL INSURANCE COMPANY. BROSY et al. v. FIRST FINANCIAL INSURANCE COMPANY.
    (430 SE2d 33)
   Cooper, Judge.

These two appeals arise out of a declaratory judgment action brought by appellee to determine its duty to defend its insured under a policy of general liability insurance. The trial court concluded that appellee had no duty to defend its insured and entered judgment in favor of appellee.

The relevant facts are that appellee issued a policy of insurance to Robert Kesler d/b/a Dynamic Cleaning Service, Inc. (“Dynamic”). Dynamic had a contract to provide after hours cleaning services to a Dairy Queen restaurant where Mr. Geoffrey Brosy was employed as the manager. Lloyd Kemp, an employee of Dynamic assigned to actually clean the restaurant, was in the process of cleaning the Dairy Queen when he allowed a former employee of the Dairy Queen to enter the restaurant. The former employee attacked Mr. Brosy by stabbing him repeatedly. The Brosys sued Kesler, Dynamic and Kemp, alleging that Kemp was negligent in allowing an unauthorized person to enter the restaurant after the close of business and that Kesler and Dynamic were liable under a theory of respondeat superior. At the time of the incident, Dynamic was insured under a policy of general liability insurance issued by appellee which contained the following assault and battery exclusion: “[N]o coverage shall apply under this policy for any claim, demand or suit based on assault and battery, and assault and battery shall not be deemed an accident, whether or not committed by or at the direction of the insured.” Appellee provided a defense to the defendants pursuant to a reservation of rights letter but subsequently filed a declaratory action to determine its duty to defend the defendants. Appellee moved for summary judgment on the grounds that the Brosys’ claims were based on the assault and battery and thus were excluded under the terms of the policy. Kesler, Dynamic and Kemp also moved for summary judgment, contending that the exclusion did not apply because the complaint alleged a cause of action for negligence in allowing an unauthorized person to enter the restaurant after business hours. The trial court granted summary judgment to appellee and denied summary judgment to Kesler, Dynamic and Kemp. In Case No. A92A1989, Kesler, Dynamic and Kemp appeal the trial court’s order, and in Case No. A92A1990, the Brosys appeal the same order.

“ ‘An insurance company may fix the terms of its policies as it wishes, provided they are not contrary to law, and it may insure against certain risks and exclude others.’ . . . [Cit.]” Lofton v. State Farm &c. Ins. Co., 192 Ga. App. 154 (384 SE2d 245) (1989). Furthermore, “[a]n insurer’s duty to defend is determined by comparing the allegations of the complaint with the provisions of the policy. [Cits.]” Batson-Cook Co. v. Aetna Ins. Co., 200 Ga. App. 571, 572 (409 SE2d 41) (1991). Appellants’ argument that the exclusion does not apply because the complaint alleges negligence and not assault and battery is unpersüasive. Although the complaint alleges that Kemp was negligent in creating the circumstances which allowed the assault to occur, the injuries which gave rise to the cause of action arose out of and were clearly based on the assault and battery. Consequently, the fact that Kemp may have negligently allowed the assault to occur does not negate the effect of the exclusion.

Appellants also argue that the exclusion should be construed such that it applies only to an assault and battery committed by an employee of the insured. “ ‘(A)n unambiguous policy requires no construction, and its plain terms must be given full effect even though they are beneficial to the insurer and detrimental to the insured. (Cits.)’ [Cit.]” Liberty Nat. Ins. Co. v. Davis, 198 Ga. App. 343, 344 (401 SE2d 555) (1991). The language of the exclusion unambiguously provides that a claim based on assault and battery is not covered by the policy. The second part of the sentence is also clear that an assault and battery is not an “accident,” which is covered by the policy, regardless of whether the assault and battery was committed by the insured, one of the insured’s employees or some unknown third party.

Decided February 25, 1993 —

Reconsideration denied March 19, 1993

Bentley, Karesh & Seacrest, Gary L. Seacrest, Richard B. Crohan, for appellants (case no. A92A1989).

Eric C. Silver, for appellants (case no. A92A1990).

Swift, Currie, McGhee & Hiers, Lynn M. Roberson, for appellee.

Although we have found no Georgia cases which interpret the assault and battery exclusion, numerous courts from other jurisdictions have uniformly rejected the arguments advanced by appellants. See, e.g., United Nat. Ins. Co. v. Entertainment Group, 945 F2d 210, 213-214 (7th Cir. 1991); Essex Ins. Co. v. Yi, 795 FSupp. 319 (N.D. Cal. 1992); Terra Nova Ins. Co., Ltd. v. Nanticoke Pines, Ltd., 743 FSupp. 293, 297-298 (Del. 1990); Terra Nova Ins. Co., Ltd. v. North Carolina Ted, 715 FSupp. 688, 690 (E.D.Pa. 1989); Wallace v. Huber, 597 S2d 1247 (La.App. 3rd Cir. 1992); Roloff v. Taste of Minnesota, 488 NW2d 325 (Minn.App. 1992); Britamco Underwriters v. Zuma Corp., 576 S2d 965 (Fla.App. 5th Dist. 1991). Appellants attempt to distinguish some or all of the cases from foreign jurisdictions, but we find no material distinctions in either the facts of the cases or the exclusions contained in the policies. The issue before us is not whether Dynamic should be liable for the negligence of Kemp but whether the policy which it purchased protects it against the type of harm which occurred. Appellants have cited no authority in support of their argument that the Brosys’ claims are within the scope of the coverage provided in the policy, and the overwhelming weight of authority from other jurisdictions is contrary to the arguments advanced by appellants. Accordingly, we conclude that summary judgment was appropriately entered in favor of appellee.

Judgments affirmed.

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


text:
    A92A2399.
    GRISWELL et al. v. COUVILLION et al.
    (429 SE2d 689)
   Cooper, Judge.

In this dispute arising out of an unconsummated real estate transaction, appellants appeal from the trial court’s issuance of a writ of fieri facias based on appellants’ failure to comply with the terms of a consent judgment previously entered in the case.

Appellees sued appellants for fraud and breach of contract, alleging that appellants purportedly sold them property pursuant to an agreement providing for “owner financing”; that appellants did not have clear and marketable title to the property they sold; and that appellants had outstanding security deeds on the property and were not making timely payments on them, thus rendering the property subject to foreclosure. The parties reached an agreement which was entered as a consent judgment and provided in pertinent part: “[Appellants] shall within 90 days of this date obtain a good and sufficient fee simple title to the house and lot ... , which may be subject to a security deed or deeds aggregating in amount no more than $42,900.00, with monthly payments thereon no greater than the monthly payments that will be due from [appellees] to [appellants] hereunder. If a party to the current title is deceased or incompetent, this time may be extended.

“Upon clearing of the title, [appellants] shall set a closing and convey the property to [appellees]. ... In the event [appellants] have not complied with the above within 90 days of the extension provided, [appellees] shall have the judgment of this Court against [appellants] for the sum of $20,000.00, plus costs. (Indentation omitted.)” Appellants were able to obtain a quitclaim deed from a prior joint owner, and the monthly payments on their two outstanding security deeds totaled less than the amount of appellees’ payments to appellants on their note. However, by the time of the closing scheduled by appellants, long after the 90 days allowed in the consent judgment had passed, the property still could not be conveyed because one of the security deeds contained a due on sale clause which had not been waived. Thus, appellees sought and received a writ of fieri facias in accordance with the terms of the consent judgment.

1. Appellants first contend that the trial court erred in granting the writ because they had in fact obtained “a good and sufficient fee simple title to the house and lot” when they obtained a quitclaim deed from the prior joint owner, regardless of the due on sale clause in the security deed. This contention is without merit. Although appellants obtained fee simple title to the property by obtaining the quitclaim deed, the title appellants brought to the closing was clearly not “sufficient” because it was not “[a]dequate ... for [the] end proposed” — conveyance of the property. See Black’s Law Dictionary, p. 1285 (5th ed. 1979); see also Aetna Cas. &c. Co. v. Valdosta Fed. &c. Assn., 175 Ga. App. 614 (1) (333 SE2d 849) (1985) (due on sale clauses in real property loan contracts are enforceable). Appellants could not remove the encumbrance and could not sell the property subject to the encumbrance because of the due on sale clause. Accordingly, they were unable to provide good and sufficient title, and appellees were entitled to a judgment against them for $20,000, plus costs.

Decided March 3, 1993 —

Ernest D. Blount, Martin C. Jones, for appellants.

Scott Walters, Jr., for appellees.

2. In their second enumeration of error, appellants contend that the trial court erred in using its equitable powers to issue a writ of fieri facias because appellees, having lived on the property for many months without making any payments, came to the court with unclean hands. However, the trial court’s determination was a purely legal one involving the interpretation and enforcement of a consent judgment entered upon agreement of the parties. Thus, this enumeration of error is also without merit.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


author: Birdsong, Presiding Judge. Beasley, Presiding Judge,

text:
    A92A1693.
    JOHNSON et al. v. WOODARD et al.
    (429 SE2d 701)
   Birdsong, Presiding Judge.

Rick Woodard is a Georgia resident employed by Owens Truck Leasing, a Georgia corporation doing business as a common carrier. Within the scope of his employment, he was driving a tractor-trailer owned by Owens when he struck a vehicle driven by Laura Johnson, resulting in her death. The collision took place on 1-85 in South Carolina while Laura Johnson was returning home to Georgia from college in South Carolina. Woodard had begun his trip in Georgia and was returning to Georgia after picking up cargo in South Carolina.

Laura Johnson’s husband, Michael Johnson, instituted this wrongful death action against Owens and Woodard in the Fulton Superior Court. Alleging that at the time of the accident Woodard was under the influence of the opiate codeine which impaired his driving, Johnson is seeking actual damages for negligence, carelessness, and recklessness, as well as punitive damages for recklessness, wilfulness or malice.

Johnson named Owens’ indemnity insurer, The Integral Company, as a party defendant on grounds that Owens is a motor common carrier which was issued a certificate of public convenience and necessity by the Georgia Public Service Commission (PSC), and it is therefore permissible to join Owens’ insurance carrier in this tort action under Georgia’s direct-action statute, OCGA § 46-7-12 (e). Johnson also asserted that joinder is proper in this state because South Carolina law also required Owens to have a certificate of public convenience and necessity, and South Carolina Code § 58-23-910 is a direct-action statute comparable to Georgia’s.

The trial court granted Integral’s motion to dismiss, for failure to state a claim against it, based on National Union Fire Ins. Co. v. Marty, 197 Ga. App. 642 (399 SE2d 260). Woodard and Owens also filed a motion to dismiss on various grounds, including improper venue, OCGA § 9-11-12 (b) (3). The court considered matters outside the pleadings, taking into account affidavits and depositions, and denied the motion in effect but transferred the case to another county upon finding that uncontested facts showed that Woodard was a resident of Jones and not Fulton County and Owens was a resident of Baldwin and not Fulton County.

The trial court’s certificate of immediate review was expressly limited to the dismissal of Integral. Transfer of the case to Baldwin County was completed. Upon our grant of interlocutory appellate review, enumerations relating to other alleged errors may be raised and must also be decided. OCGA § 5-6-34 (d); see Griffith v. Ga. Bd. of Dentistry, 175 Ga. App. 533 (333 SE2d 647). Held:

1. Johnson complains of the trial court’s transfer of the case for improper venue, on Woodard’s and Owens’ motion to dismiss, based on the factual finding that Woodard was not a resident of Fulton County when the suit was filed and served.

The court was the trier of fact on the issues, and its determination “will be reversed only where the evidence demands a contrary finding.” Barrow v. Gen. Motors Corp., 172 Ga. App. 287, 288 (322 SE2d 900).

By affidavits, Woodard swore that at the time of the accident, he lived with his parents in Jones County. At that time, he considered that address to be his home and his residence. He subsequently obtained a job working in the motion picture industry. In performing that job, he was required to travel to locations outside of Jones County, and he would obtain lodging in those areas for reasons of economics and because of his inability to travel on a daily basis to and from Jones County to remote locales. Prior to plaintiff’s filing of the present complaint, Woodard’s employment required him to travel to Atlanta for the filming of a movie and to remain there for several months. During that time, he shared a furnished apartment in Fulton County with other persons. He did not list the telephone or utilities in his name. He continued to receive mail in Jones County (although he received mail at his Fulton County address also). He never registered to vote in Fulton County or took any action to change his permanent address (although he established a checking account at a local bank and obtained checks imprinted with his Fulton County address). He departed Fulton County when his employment there ended.

Under Ga. Const. 1983, Art. VI, Sec. II, Par. IV, all civil cases other than those specifically excepted shall be tried in the county where the defendant resides. See Williams v. Fuller, 244 Ga. 846, 850 (2) (262 SE2d 135).

“ ‘ “Residence” and “domicile” are not synonymous and convertible terms. (Cits.) . . . [0]ne’s legal residence for the purpose of being sued in this state is necessarily the same county as his domicile where domicile is determined by that part of [OCGA § 19-2-1] which provides, “The domicile of every person of full age, and laboring under no disability, is the place where the family of such person shall permanently reside, if in this state.” ’ [Cit.]” Pugh v. Jones, 131 Ga. App. 600, 603 (1) (206 SE2d 650); compare OCGA § 19-2-2 (b). “ ‘There must be either the tacit or the explicit intention to change one’s domicile before there is a change of legal residence.’ [Cits.]” Sorrells v. Sorrells, 247 Ga. 9, 11-12 (3) (274 SE2d 314).

Evidence showed that Woodard’s domicile was Jones County, and there is no evidence of any intent on his part to change his domicile from there to Fulton County. Consequently, the court did not err in finding that Jones County remained his legal residence for venue purposes.

2. The refusal of the court to make written findings of fact and conclusions of law was not error, as this is not required on motions such as were before it. See OCGA § 9-11-52.

3. The trial court held in effect that OCGA § 46-7-12 (e), which permits joinder of the insurer in the same action against the motor carrier, does not apply to a collision involving a Georgia resident and a vehicle which is subject to Georgia PSC regulation under Title 46, where the collision occurs in another state.

This Georgia motor carrier is “subject to an action [on the bond or policy of indemnity insurance]” in Georgia by “any person”; therefore, joinder of the insurer (OCGA § 46-7-12 (b) and (e)) is proper. Joinder is not prohibited merely because the collision occurred on a highway in South Carolina.

National Union Fire Ins. Co. v. Marty, 197 Ga. App. at 643 notes that several statutes in Title 46 (as to regulation of common carriers) refer to “ ‘commerce carried on in this state’ ” and “on any public highway of this state.” (Emphasis omitted.) Specifically, National Union Fire notes that OCGA § 46-7-50 provides that Article 2 of Chapter 7 of Title 46 “ ‘is intended to state the conditions and regulations under which motor carriers for hire other than common carriers are permitted to operate over the highways of this state.’ ” Id. at 643. That case does not control this case because it is not clear from the facts whether that motor carrier was one regulated by the Georgia PSC.

In any event, the issue in this case involves not Article 2 of Title 46, Chapter 7, but involves Article 1. OCGA § 46-7-12 (e) of Article 1 permits joinder of the insurer in “a cause of action arising under this article in tort or contract,” and it does not restrict any such cause of action to one arising out of an occurrence on the streets or highways of this state. We have found no Code section which does.

Granted, many statutes in Title 46 refer to commerce on and use of Georgia highways. However, Article 1 of Title 46 regulates a Georgia carrier operating in both interstate and intrastate commerce “to the extent expressly authorized by this article.” (Emphasis supplied.) OCGA § 46-7-36. The direct action statute, § 46-7-12, at (b) and (c) “expressly authorizefs]” (§ 46-7-36) the PSC to require bond (§ 46-7-12 (b)) or insurance conforming to the provisions at (b) as to bonds (id. at (c)), “for the benefit of and subject to action thereon by any person who shall sustain actionable injury or loss protected [by such bond or insurance].” (Emphasis supplied.) Moreover, without regard to where an accident occurs, OCGA § 46-7-12 (e) expressly authorizes suit and joinder of insurer when a cause of action arises under Article 1, specifically § 46-7-12 (b) and (c), against a motor carrier which was issued a certificate of public convenience and necessity by the Georgia PSC. So, where the motor carrier is “subject to action” in Georgia “by any person” (id. at (b)), OCGA § 46-7-12 (e) “expressly authorizefs]” (see § 46-7-36) joinder without regard to whether the carrier is engaged in “commerce carried on exclusively in this state.” Id.

We conclude that mere reference to use of Georgia highways in some sections of the Act does not mean that a person has a cause of action under Article 1 (§ 46-7-12 (b), (c) and (e)) only if an injury occurs on Georgia highways or streets.

Moreover, a statute most pertinent to the question at hand is OCGA § 46-7-16 (e), which provides: “It shall not be necessary for any motor common carrier to obtain a certificate of public convenience from the Georgia Public Service Commission when such carrier is engaged solely in interstate commerce over the public highways of this state.” (Emphasis supplied.) So, the certificate of public convenience and necessity (OCGA § 46-7-3) which is what permits joinder (§ 46-7-12 (e)) is required only when a carrier is engaged in commerce in other states as well as in Georgia. OCGA § 46-7-16 (e). The inexorable conclusion is that a certificate is required and joinder is thus permitted under § 46-7-12 (e), when a carrier is engaged in commerce over the public highways of another state (§ 46-7-16 (e)) but is “subject to [an] action [on the bond or insurance]” in Georgia by “any person” injured by the carrier. OCGA § 46-7-12 (b).

OCGA § 46-7-12 allows a suit by a non-resident against a carrier in Georgia, and says nothing about limiting recovery or joinder to persons injured on the highways of Georgia.

The thrust of OCGA § 46-7-12 (Article 1) is to facilitate suit against, and liability of, carriers whom the public may or must sue in Georgia (i.e., carriers which are “subject to action [on the bond or insurance required by § 46-7-12 (b) or (c)],” by “any person” who has “a cause of action arising under this article.” Id. at (b), (c), and (e)). Thus, § 46-7-12 (e) permits “any person” with an actionable injury or loss (id. at (b)) against a carrier “subject to [an] action” on the Georgia bond (id.), to join the insurer in such an action. The prerequisite of such suit and joinder is that the carrier be one which is statutorily required to obtain bond or liability insurance and is subject to suit in Georgia. Since such certificate and bond or insurance is not required at all when the carrier is engaged solely in interstate commerce over the public highways of Georgia (§ 46-7-16 (e)), the only reasonable inference is that the certificate of convenience which permits joinder of the insurer in a suit against a carrier “subject to action [on the bond or insurance]” in Georgia applies specifically to, and “expressly authorize [s]” (§ 46-7-36) causes of action for, a tort which occurred on public highways of other states. It is immaterial whether the plaintiff is a resident of Georgia; what is material is that the defendant is subject to an action filed in Georgia under § 46-7-12.

Furthermore, on principle, we find no reason the insurer of this motor carrier should not be joined in this action against a carrier operating under a certificate of convenience issued by the State of Georgia, and which is therefore required to be, or may be, sued in Georgia. Unless a statute strictly and expressly prohibits it, there is no reason joinder should be denied to “any person” (§ 46-7-12 (b)) injured by a carrier which is regulated by the Georgia PSC and which is “subject to action [on the bond]” (id.) and therefore may or must be sued in Georgia.

As to a carrier which has been issued a certificate and bond (or provides insurance) and is subject to an action for damages in Georgia, we have not found a statute which prohibits joinder merely because the tort occurred over the border. In view of the intent stated at § 46-7-16 (e) (i.e., that the certificate of convenience which requires insurance and allows joinder of the insurer is required only where the carrier is not “engaged solely in interstate commerce over the public highways of this state”), we must conclude that the legislature intended to extend the benefit of the joinder statute to “any person” (§ 46-7-12 (b)), including one injured in another state by tort of a Georgia carrier which is regulated by and is “subject to action [on the Georgia bond]” in the State of Georgia. We cannot infer a contrary purpose from statutes referring to other things and referring generally to commerce “in this state” or to torts occurring on the “highways of this state.”

The trial court therefore erred in dismissing the insurer Integral from the suit.

Judgment affirmed in part and reversed in part.

Pope, C. J., McMurray, P. J., Cooper and Blackburn, JJ., concur. Beasley, P. J., Andrews and Johnson, JJ., concur in part and dissent in part.

Beasley, Presiding Judge,

concurring in part and dissenting in part.

I concur in Divisions 1 and 2 of the majority opinion but respectfully dissent with respect to Division 3.

Ordinarily, joinder of parties is governed under the Civil Practice Act, sections 19 and 20 (OCGA §§ 9-11-19; 9-11-20). Plaintiff does not invoke these provisions for joining Integral. He seeks instead to compel the insurer to be joined on the authority of OCGA § 46-7-12 (e), which provides: “It shall be permissible under this article [the article of the chapter on public utilities and transportation which governs motor common carriers] for any person having a cause of action arising under this article in tort or contract to join in the same action the motor carrier and its surety, in the event a bond is given. If a policy of indemnity insurance is given in lieu of bond, it shall be permissible to join the motor carrier and the insurance carrier in the same action, whether arising in tort or contract.”

Whether joinder is allowed is a matter of procedure, with which plaintiff agrees. This was recognized in Watkins v. H. O. Croley Granary, 555 FSupp. 458, 461 (2) (N.D. Ga. 1982): “[OCGA § 46-7-12 (e)] does not enlarge or limit the financial liability of insurers of motor carriers, but only procedurally affects the remedy for enforcing that liability. [Cits.]” Thus, the law of Georgia applies, as the forum chosen by plaintiff is in Georgia. “Under the rule of lex fori, procedural or remedial questions are governed by the law of the forum, the state in which the action is brought. [Cit.]” Federal Ins. Co. v. Nat. Distrib. Co., 203 Ga. App. 763, 765 (417 SE2d 671) (1992).

The question is whether the joinder provision covers the out-of-state collision.

Plaintiff’s first argument is that the provision is plain on its face and does not limit joinder to suits based on torts occurring in Georgia. While that is true, one must examine the development of this provision and the context in which it appears. It is an addition to the section of the law governing motor common carriers in Georgia which requires a security bond, indemnity insurance, or self insurance as a prerequisite for obtaining a certificate of public convenience and necessity.

The Supreme Court of Georgia construed OCGA § 46-7-12 (before subsection (e) was added) as meaning that since the required insurance is for the benefit of those who sustain actionable injury or loss, the insurance is “a direct and primary obligation to any person who shall sustain actionable injury or loss by reason of the negligence of the insured in the operation of his motor vehicles insured under the policy.” Great American Indem. Co. v. Vickers, 183 Ga. 233, 236 (188 SE 24) (1936). “The sustaining of actionable injury is, under the statute, the only condition precedent to a suit on the policy.” (Emphasis in original.) Id. Thus it held that the injured party had a right to sue the insurer directly, without previously obtaining judgment against the tortfeasor. Vickers had sued the insurer alone.

A month after allowing, procedurally, a direct action because the contract was, substantively, a direct obligation, the Court held that the insurance company could not be joined with the motor common carrier in the same suit. The reasons were that the rules of pleading did not permit joinder of claims ex contractu with claims ex delicto, and the statute, which must be strictly construed because it is in derogation of common law, did not authorize it. Russell v. Burroughs, 183 Ga. 361 (188 SE 451) (1936).

The next year the law was amended to add the subsection now known as (e) to both the motor common carrier act, upon which plaintiff relies, and the motor carrier for hire act (now known as the motor contract carrier article). OCGA § 46-7-58 (Ga. L. 1937, pp. 727, 730). “This, then, allowed the joinder of a tort action against the carrier with a contract action against its insurer-in-lieu-of-bond. The only condition precedent to the joinder of the latter was that there be a viable action against the former.” Farley v. Continental Ins. Co., 150 Ga. App. 389, 391 (258 SE2d 8) (1979).

The insurance which is required is for certificates for motor common carriers operating in Georgia, OCGA § 46-7-7, as the commission which issues such certificates only has power to regulate the business of carriers “on any public highway of this state.” OCGA § 46-7-2. See Commercial Union Ins. Co. v. Bradley Co., 186 Ga. App. 610, 612 (1) (367 SE2d 820) (1988). See also OCGA § 46-7-36, which subjects motor common carriers doing both interstate and intrastate business to the provisions of Article 1 “so far as [they] separately [relate] to commerce carried on in this state.”

“The public” which is referred to in OCGA § 46-7-12 as being the beneficiary of the insurance thus means the public on the highways of Georgia. Plaintiff does not have “a cause of action arising under [Article 1 ]” because only those causes which occur in Georgia arise under the requirement for insurance which protects the public on Georgia highways. (Emphasis supplied.) There is no basis for construing “the public,” as plaintiff would have us do, to mean Georgia residents wherever they may travel. Since the joinder provision in subsection (e) is in derogation of common law, we must strictly construe it. See Russell, supra. The controlling factor for joinder is the place where the tort occurred, not who was injured. Joinder is allowed under subsection (e) based on the tort having been committed in Georgia by a Georgia-certified carrier, not on its having been committed on a Georgia resident regardless of what state that resident was in.

Decided March 19, 1993.

Weiner, Yancey & Dempsey, Beryl H. Weiner, John C. Yancey, Thomas C. Dempsey, Robert W. Diggs, for appellants.

Webb, Carlock, Copeland, Semler & Stair, D. Gary Lovell, Jr., for appellees.

Despite plaintiff’s arguments to the contrary, National Union Fire Ins. Co. v. Marty, 197 Ga. App. 642 (399 SE2d 260) (1990), is not overruled. Nor is it distinguishable on the salient points. The fact that it arose on summary judgment rather than on motion to dismiss is of no significance because it is undisputed here that the collision occurred in South Carolina and not in Georgia. Nor is it significant whether Florida does not have, but South Carolina has, a statute allowing joinder. Even if, under its S.C.R.C.P. 20 (a), South Carolina would allow joinder of the insurer which issues the insurance required by S.C. Code § 58-23-910, this is a suit in Georgia, not South Carolina, so the procedural rule of Georgia governs.

Thus the rule allowing joinder, which is a procedural rule, does not apply to the collision here at issue. Since the procedural rules of the forum apply, plaintiff had no right to join the insurance company in his wrongful death action against the carrier and its driver employee under OCGA § 46-7-12.

I am authorized to state that Judge Andrews and Judge Johnson join in this opinion.

        Russell also held that the same applies to the analogous motor contract-carrier section, now OCGA § 46-7-58.


author: Andrews, Judge.

text:
    A92A1700.
    LOWE v. THE STATE.
    (430 SE2d 169)
   Andrews, Judge.

Lowe appeals the judgment entered on his conviction by jury of one count of possession with intent to distribute methamphetamine and one count of possession of less than one ounce of marijuana.

1. Lowe’s first and second enumerations attack the sufficiency of the evidence on the possession of methamphetamine with intent to distribute and the denial of his motion for directed verdict on that count under OCGA § 24-4-8. They will be addressed together.

Viewed in favor of the jury’s verdict, the evidence was that on February 8, 1991, Investigator Thomas of the East Metro Drug Team received an anonymous call forwarded to him by the sheriff’s office. The female caller did not identify herself, but asked Thomas if he knew Tommy Lowe, defendant, who was currently housed in the Briar Creek Apartments, was selling methamphetamine. Also, according to the caller, Lowe’s white Corvette had been seized in a raid near Monticello the day before and a man named Jenkins had been arrested on drug charges.

Agents Thomas and Haymore went to the apartments about 10:00 p.m. and established surveillance. The two agents observed a male come out of the apartment and drive off in a truck with no tag light. They requested uniformed officers who pulled the truck over. Ferguson was driving it and was asked by Agent Thomas where he had been. According to Thomas, Ferguson stated that he had been to “Tommy’s” in Briar Creek and he was over there “paying a $40 methamphetamine debt.” Ferguson consented to a search and a baggie containing white powder, suspected to be methamphetamine, was found in his pocket and he was . arrested.

A no-knock search warrant was obtained for the apartment. Asked by the prosecutor why he got a no-knock warrant, Thomas responded, “I have had dealings with the defendant in the past.” The defense objection to this statement as having placed Lowe’s character in issue was sustained and the jury was instructed to disregard it, although Lowe’s motion for mistrial, which was renewed after the instructions, was denied. Officer Thomas had previously observed Lowe driving the seized Corvette in Monticello, although he did not know who owned the car.

Sheriff’s Deputy Edge was familiar with 943 Briar Creek Apartments and had made several responses to domestic type problems there. On one occasion, prior to February 8, Edge was called to the apartment where he spoke with Lane who had previously described the arrangement between her and Lowe as living together at the apartment and being married. Edge located Lowe on that occasion in the vicinity of the apartment in a white Corvette. The maintenance supervisor and assistant manager of the apartments both testified that they saw Lowe at the apartments frequently and had seen him leave in the mornings driving a white Corvette or van. The assistant manager saw Lowe every day and “assumed he lived there.”

At 3:26 a.m. on February 9, the warrant was executed. Upon entry, the officers observed Lowe, dressed only in purple undershorts, running from the hallway/living room area toward the master bedroom. Because Lowe did not stop when ordered by the officers, he was subdued and removed from the apartment. Lane, dressed in a nightie, was given a robe and placed on the couch while the search ensued.

Lowe’s wallet was found during the search and contained $200 cash, some rolling papers, and miscellaneous papers. Also found in various locations in the apartment were a High Times Magazine, individual baggies, a kit with razor blades, a brush and small spoon used for snorting drugs. Exhibit 5 was identified as a plastic container of white powder located in the master bedroom. Also, in the bedroom closet was found a triple-beam scale and in the pocket of a pink sweatshirt hanging in the closet agents found 6.1 grams of methamphetamine (Exhibit 16).

In a bedside table drawer, officers found Lane’s purse and driver’s license, along with an address book and a piece of paper with numerical notes on the left, appearing to be dollar amounts, and in the right column, weighing and gram amounts. Also inside the drawer was found a bag of syringes, razor blades, and other paraphernalia of drug usage.

The crime lab expert testified that Exhibit 16, found in the pocket of the pink sweatshirt in the closet, was positive for methamphetamine. Exhibit 22, removed from Ferguson’s pocket, was positive for methamphetamine. Exhibit 23, also removed from Ferguson’s possession, was 4.2 grams of marijuana. Exhibit 7 consisted of two pouches found under a towel on the bedside table in the master bedroom. The black pouch contained partially smoked marijuana cigarettes, as confirmed by the crime lab.

Ferguson testified for the State at the trial and contradicted the earlier statement which Agent Thomas testified he had made when arrested. Ferguson testified that he knew Lowe, having worked for him for a few months as a painter. That evening, he went to Lowe’s place at 943 Briar Creek Court to repay Lowe some money he had previously borrowed from him to buy groceries. While acknowledging that he had methamphetamine and marijuana on him when arrested, he specifically denied obtaining either drug from Lowe or the Briar Creek Apartments.

Lane also testified for the State, having pled guilty to drug charges arising from this incident. She said that she met Lowe about five years ago and they began dating. They began living together in December 1986 and remained together three years, at which point Lane moved in with her mother without Lowe. Then, she moved to the Briar Creek Apartments, where she remained for about ten months. She was still seeing Lowe on and off and he stayed with her “sometimes.” As she stated, “I saw him three or four times a week and he may spend the night once out of the week.” Lowe did not possess a key to the apartment. She further testified that she and Lowe had used methamphetamine together. Sometimes he would obtain the drug, sometimes she would.

On Friday February 8, Lowe came to her apartment and they were going to have company. Before they arrived, Lane placed two lines of what she described as methamphetamine on a mirror, ingested one, and left Lowe alone in the room with the other line. When she returned, the line was gone.

Lane said she, Lowe, and their guests also smoked marijuana that evening. While Ferguson came by that evening, Lowe told her Ferguson was coming by to give him some money he owed him. She denied ever having seen Lowe sell drugs and said the two lines they did that night were hers.

While Lane testified that there was methamphetamine in Exhibit 7, the black pouch, the crime lab expert only identified it as positive for marijuana. The State asked “that was in the black pouch on the night stand at the time of your arrest; is that correct? A. Yes. Q. Whose methamphetamine was that? A. I would say Tommy got it for us.”

Lane then claimed that the 6.1 grams of methamphetamine found in the vial in the pocket of the pink sweatshirt belonged solely to her. There was no connection shown between that methamphetamine and the two lines put on the mirror.

While the State also showed her an otherwise unidentified “big baggie” supposedly containing methamphetamine, there is no other evidence indicating that it was methamphetamine or that Lowe had contact with it except Lane’s statement that it was “Tommy’s.”

“In Georgia, a defendant may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8. . . . The corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. [Cit.] ‘However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. (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 a verdict. (Cit.)’ Reaves v. State, 242 Ga. 542, 543 (250 SE2d 376) (1978).” Castell v. State, 250 Ga. 776, 780 (1c) (301 SE2d 234) (1983).

Lowe relies on Ridgeway v. State, 187 Ga. App. 381 (370 SE2d 216) (1988). There, Ridgeway was found in an apartment in possession of three folded dollar bills containing cocaine. He also acknowledged that money on a nearby table was his. He had a set of keys to the apartment in his pocket. He was convicted of possession with intent to distribute based on heroin and cocaine found in other locations of the apartment.

His conviction for possession with intent to distribute was reversed.

Here, however, there was evidence indicating that Lowe lived in the apartment and quantities of methamphetamine were located there, along with the implements of trafficking, a triple-beam scale, cutting materials, and baggies for packaging.

“Under White v. State, 253 Ga. 106, 107 (317 SE2d 196) (1984), ‘circumstantial evidence must exclude only reasonable inferences and hypotheses and it is not necessary that such evidence be devoid of every inference or hypothesis except that of the defendant’s guilt.’ ” Peppers v. State, 261 Ga. 338, 339 (1) (404 SE2d 788) (1991).

“Resolution of conflicting theories drawn from evidence is for the jury and it is not our province to reweigh the evidence and their inferences drawn from it. Holcomb v. State, 198 Ga. App. 547 (402 SE2d 520) (1991); see OCGA § 24-9-80.” Robinson v. State, 203 Ga. App. 759, 760 (1) (417 SE2d 404) (1992). Thus, applying the standard of Jackson v. Virginia, 443 U. S. 307, 310 (99 SC 2781, 61 LE2d 560) (1979), we hold that the evidence was sufficient to enable a rational trier of fact to find Lowe guilty beyond a reasonable doubt of the offense of possession of methamphetamine with intent to distribute. Robinson, supra.

2. The third enumeration alleges error in the allowance of Investigator Thomas’ hearsay explanation of his basis for obtaining the search warrant based on accusations against Lowe by the unidentified informant.

While the introduction of this hearsay was defended by the State under the ambit of OCGA § 24-3-2 (to explain the conduct of the officer in obtaining the warrant), such a use does not meet the criteria required by Teague v. State, 252 Ga. 534 (1) (314 SE2d 910) (1984); Ivester v. State, 252 Ga. 333, 334 (313 SE2d 674) (1984); and Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982). In this case, the introduction of this evidence cannot be said to have been harmless. Hart v. State, 174 Ga. App. 134 (1) (329 SE2d 178) (1985); compare Dawson v. State, 205 Ga. App. 394 (2) (422 SE2d 280) (1992). The allegations of an unrelated drug deal where a car allegedly driven by Lowe at another time had been seized clearly placed his character in issue. Chandler v. State, 204 Ga. App. 816, 818 (1) (421 SE2d 288) (1992). The conviction must be reversed.

Decided March 19, 1993.

Albert A. Myers III, for appellant.

Cheryl F. Custer, District Attorney, Alan S. Clarke, Assistant District Attorney, for appellee.

3. The fifth enumeration also is meritorious. Lowe filed his written request to charge on “two equal theories,” encompassed in OCGA § 24-4-6, which the court refused to give, stating “[tjhis is where it’s all circumstantial.”

Since no drugs were found in the actual possession of Lowe, however, this is such a case dependent on circumstantial evidence and it was error to refuse to so charge upon written request. Arnett v. State, 245 Ga. 470, 473 (4) (265 SE2d 771) (1980); Turner v. State, 194 Ga. App. 878, 879 (1) (392 SE2d 256) (1990); see generally Lee v. State, 177 Ga. App. 8 (2) (338 SE2d 445) (1985), cert. denied, 476 U. S. 1116.

4. The fourth enumeration is without merit, since the issue of whether Lowe resided at 943 Briar Creek Court was hotly contested by him and the first “jail card” tendered into evidence was placed there by Lowe, showing another address, and was subject to rebuttal evidence by the State.

Judgment reversed.

McMurray, P. J., and Beasley, P. J., concur. Birdsong, P. J., not participating.

       His conviction for simple possession of the cocaine found on his person was affirmed.


author: Beasley, Judge. Andrews, Judge,

text:
    A92A1908.
    COLLINS v. DEPARTMENT OF TRANSPORTATION et al.
    (429 SE2d 707)
   Beasley, Judge.

Collins, an employee of the Georgia Department of Transportation, filed the present complaint against the department, one of her co-employees, and certain supervisory personnel, seeking damages in tort for sexual harassment.

She moved to amend her complaint to add certain claims, including one under Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972 (42 USC § 2000e et seq.). Collins bases this claim on assertions that she was subjected to a series of retaliatory actions by her supervisors and the department after she filed her complaint. The Justice Department issued a right-to-sue letter to her after she exhausted the federal administrative remedies, notifying her that if she chose to file suit, she must do so within 90 days, which she did by way of her motion to add this now-ripe claim.

As authority in support of her motion, Collins cited Yellow Freight System v. Donnelly, 494 U. S. 820 (110 SC 1566, 108 LE2d 834) (1990). The superior court denied Collins’ motion, holding that Donnelly only held that state courts presumptively have jurisdiction over Title VII claims; whether a state court in fact has Title VII jurisdiction is dependent on state law; the General Assembly has acted in employment discrimination matters by enacting the Georgia Fair Employment Practices Act of 1978, OCGA § 45-19-20 et seq.; Georgia superior courts do not have original jurisdiction under the Georgia Act, but rather have only appellate jurisdiction pursuant to OCGA § 45-19-39; consequently, Georgia superior courts do not have original jurisdiction over Title VII claims.

We granted Collins’ application for interlocutory appeal and reverse.

Title VII authorizes charges to be filed with the Equal Employment Opportunity Commission (EEOC) by or on behalf of a person claiming to be aggrieved by an employer who has engaged in an unlawful employment practice. 42 USC § 2000e-5 (b). There is a prerequisite for filing such charges, however. Under subsection (c), they may not even be regarded as filed until at least 60 days have passed following commencement of state or local proceedings if state or local law prohibits the alleged practice. As recognized in Donnelly, supra at 825, this allows “state or local agencies an opportunity to remedy the allegedly unlawful practice prior to any federal action.” After the federal claim is duly made, the EEOC generally has 180 days to file a civil action if it deems such appropriate after investigation. 42 USC § 2000e-5 (f) (1). As provided therein, if it chooses not to do so, it notifies the aggrieved person that he or she may bring a civil action. Thus, upon an exhaustion of federal administrative remedies, the aggrieved person is notified by a “right-to-sue” letter.

Contrary to the decision in Flournoy v. Akridge, 189 Ga. App. 351, 352 (375 SE2d 479) (1988), and like federal and state cases cited therein, the United States Supreme Court in Donnelly subsequently held that state courts do have jurisdiction over Title VII claims. It stated:

“Under our ‘system of dual sovereignty, we have consistently held that state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States.’ [Cits.] To give federal courts exclusive jurisdiction over a federal cause of action, Congress must, in an exercise of its powers under the Supremacy Clause, affirmatively divest state courts of their presumptively concurrent jurisdiction. [Cit.]” Id. at 823.

The Court reviewed the text of Title VII, its legislative history, the compatibility of its procedures and state court jurisdiction, statutory references to federal court procedures, and “the presumption that state courts are just as able as federal courts to adjudicate Title VII claims.” It concluded that “the presumption of concurrent jurisdiction that lies at the core of our federal system” prevailed, and state courts were not divested by Congress of their concurrent authority to adjudicate federal claims. Id. at 826.

The appellee state agency contends that this merely authorizes state court jurisdiction but does not compel it. It argues that state court jurisdiction is governed by state law which, because of the Georgia Fair Employment Practices Act and its limitation on judicial review of administrative action in OCGA § 45-19-39, precludes superior court jurisdiction of Title VII claims. It is true that state law establishes the jurisdiction of the state courts. As to the superior courts, Art. VI, Sec. IV, Par. I of the Georgia Constitution of 1983 provides: “The superior courts shall have jurisdiction in all cases, except as otherwise provided in this Constitution.” OCGA § 15-6-8 (1) is the statutory complement, expressing that superior courts have authority “[t]o exercise original, exclusive, or concurrent jurisdiction, as the case may be, of all causes, both civil and criminal, granted to them by the Constitution and laws.” Thus state law enables the fulfillment of the “concurrent jurisdiction” held to exist by the decision in Donnelly, supra at 826, through the general jurisdiction of the superior courts.

The existence of the state remedy in the Georgia Fair Employment Practices Act does not limit superior court jurisdiction over the federal law. In fact, it expressly provides that a determination under it does not exclude “any remedies which may be available under the United States Constitution and federal laws.” OCGA § 45-19-41. Nor can the Georgia FEPA preclude state court jurisdiction of the federal remedy, because of the Supremacy Clause. “The power of a State to determine the limits of the jurisdiction of its courts and the character of the controversies which shall be heard in them is, of course, subject to the restrictions imposed by the Federal Constitution.” McKnett v. St. Louis &c. R. Co., 292 U. S. 230, 233 (54 SC 690, 78 LE 1227) (1934).

As explained in Howlett v. Rose, 496 U. S. 356, 367-368 (110 SC 2430, 110 LE2d 332) (1990), “[f]ederal law is enforceable in state courts . . . because the Constitution and laws passed pursuant to it are as much laws in the State as laws passed by the state legislature. The Supremacy Clause makes those laws ‘the supreme Law of the Land,’ and charges state courts with a coordinate responsibility to enforce that law according to their regular modes of procedure. ‘The laws of the United States are laws in the several States, and just as much binding on the citizens and courts thereof as the State laws are. . . . The two together form one system of jurisprudence, which constitutes the law of the land for the State; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent.’ [Cits.]” That case involved an action under 42 USC § 1983 brought in state court. Georgia has acknowledged its jurisdiction over such cases. See, e.g., City of Cave Spring v. Mason, 252 Ga. 3 (310 SE2d 892) (1984); Wyman v. Popham, 252 Ga. 247, 248 (3) (312 SE2d 795) (1984).

This principle underlies our jurisdiction in Federal Employers’ Liability Act (45 USCA § 51 et seq.) actions also. In Mondou v. New York, New Haven & Hartford R. Co., 223 U. S. 1, 56-57 (32 SC 169, 56 LE 327) (1912), it was said that where there is not involved “any attempt by Congress to enlarge or regulate the jurisdiction of state courts or to control or affect their modes of procedure,” then it is the “duty of such a court, when its ordinary jurisdiction as prescribed by local laws is appropriate to the occasion and is invoked in conformity with those laws, to take cognizance of an action to enforce a right of civil recovery arising under the act of Congress and susceptible of adjudication according to the prevailing rules of procedure.” See also McKnett, supra. A recent example of the adjudication of such a claim in state court is Central of Ga. R. Co. v. Swindle, 260 Ga. 685 (398 SE2d 365) (1990).

We thus hold that, based on the federal statute and Donnelly, the superior courts in Georgia have subject matter jurisdiction over timely Title VII claims filed pursuant to EEOC notification to the claimant that, the federal prerequisites for suit having been fulfilled, suit may be filed.

The General Assembly’s adoption of the Fair Employment Practices Act, providing a state remedy, enforceable in state courts following state administrative proceedings, does not and cannot preclude pursuit of a ripe and independent federal Title VII action in state courts. The superior courts’ appellate jurisdiction over state FEPA claims does not affect their original jurisdiction over Title VII claims. In a nutshell, “[a] state may not discriminate against rights arising under federal laws.” McKnett, supra at 234.

Judgment reversed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Cooper, Johnson and Blackburn, JJ., concur. Andrews, J., dis sents.

Andrews, Judge,

dissenting.

Because I agree with the superior court’s analysis that the procedural requirements of the laws of this state give Georgia superior courts only appellate jurisdiction of claims such as appellant’s, I must respectfully dissent.

The Georgia Fair Employment Practices Act of 1978, OCGA § 45-19-20 et seq., states as one of its general purposes “[t]o provide for execution within public employment in the state of the policies embodied in Title VII of the federal Civil Rights Act of 1964 (78 Stat. 241), as amended by the Equal Employment Opportunity Act of 1972 (86 Stat. 103), . . . the federal Age Discrimination in Employment Act of 1967 (81 Stat. 602), . . . and the federal Rehabilitation Act of 1973 (87 Stat. 355)____”

An administrative review procedure, including a full hearing before a special master, is provided for any such claim. OCGA §§ 45-19-36; 45-19-37; 45-19-38.

Once such a claim has been resolved by the Special Master, the proceedings provided by OCGA § 45-19-;39 are appellate review by the superior court of the actions of the special master. As stated in subsection (b) “[t]he court shall not substitute its judgment for that of the special master as to the weight of the evidence on questions of fact. The court may affirm ... or remand the case for further proceedings. The court may reverse or modify the final order if substantial rights of the appellant have been prejudiced. ...” The possible bases for such a reversal are then set out.

That a claimant will have to comply with both state and federal administrative procedures, when the complaint originates in the federal agency in order to assert the federal Title VII claims before a state court does not preclude the assertion of those rights in state court, as asserted by the majority. As stated in Yellow Freight System v. Donnelly, 494 U. S. 820 (110 SC 1566, 108 LE2d 834) (1990): “Petitioner argues that it is anomalous to contemplate reference to a state agency, followed by review in the federal agency, as a condition of proceeding with litigation in state court. Petitioner’s ‘anomaly,’ however, is merely a consequence of Title VII’s dual-track method of procedure. The first hiatus is designed to give state administrative agencies an opportunity to invoke state rules of law. The action by the EEOC, in contrast, is a predicate for litigation based on the federal statute. When the right to sue under Title VII arises, the fact that both a state agency and the EEOC have failed to resolve the matter does not affect the question of what judicial forum should or may entertain the action. Congress employed a similar scheme in the Age Discrimination in Employment Act of 1967, in which complaints must be screened through both state and federal agencies, although concurrently, before an action may be brought ‘in any court of competent jurisdiction.’ ” Id. at 825.

Decided March 19, 1993.

Stanford, Fagan & Giolito, Debra Schwartz, for appellant.

Michael J. Bowers, Attorney General, Jeffrey L. Milsteen, Senior Assistant Attorney General, William, G. Cromwell, Assistant Attorney General, for appellees.

The making of such a review in our courts of an appellate nature after providing full opportunity for hearing and factfinding is within the state’s appropriate power to determine the limits of the jurisdiction of its own courts and the character of controversies which may be addressed and does not close our courts to federal claims. See McKnett v. St. Louis &c. R. Co., 292 U. S. 230, 233 (54 SC 690, 78 LE 1227) (1934); Board of Regents v. Cohen, 197 Ga. App. 463 (398 SE2d 758) (1990).

       And the dictum in Favors v. Alco Mfg. Co., 186 Ga. App. 480, 482 (1) (367 SE2d 328) (1988).

       Another example of state court subject-matter jurisdiction over federal law actions is 42 USCA § 1981, Spencer v. McCarley &c. Storage Co., 174 Ga. App. 525 (330 SE2d 753) (1985).


text:
    A92A1952.
    BRUNDAGE v. THE STATE.
    (430 SE2d 173)
   Birdsong, Presiding Judge.

Gregory Brundage appeals his conviction for the sale of cocaine. His sole enumeration of error is that he received the ineffective assistance of trial defense counsel. Held:

1. “Having reviewed the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found the defendant guilty of the [crime] for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Crawford v. State, 245 Ga. 89, 90 (263 SE2d 131) (1980).” Witherspoon v. State, 262 Ga. 2 (412 SE2d 829).

2. The record shows defense counsel appointed to represent Brundage during his trial also filed the motion for new trial on his behalf and appellate counsel was appointed after the motion for new trial was denied. While ordinarily under this posture of the case we would remand for an evidentiary hearing and ruling by the trial court (see Johnson v. State, 259 Ga. 428, 430 (383 SE2d 115)), under the facts of this appeal it would serve no useful purpose.

In cases such as this “[t]he burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney’s representation in specified instances fell below ‘an objective standard of reasonableness’ and (2) there is ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ Strickland v. Washington, 466 U. S. 668, 695-96 (104 SC 2052, 80 LE2d 674) (1984). [Cit.]” Bowley v. State, 261 Ga. 278, 280 (404 SE2d 97). A reviewing court, however, need not address both elements of this test if a sufficient showing of one element cannot be made and the elements need not be addressed in any particular order. Thompson v. State, 191 Ga. App. 906 (383 SE2d 339); Young v. State, 191 Ga. App. 651, 653 (382 SE2d 642). As it is apparent as a matter of law that Brundage cannot satisfy the second element of this test, we need not remand for a hearing on whether counsel was ineffective. See Smith v. State, 262 Ga. 480 (422 SE2d 173); French v. State, 261 Ga. 424 (405 SE2d 35).

Brundage’s sole allegation is that his trial defense counsel was ineffective because he failed to move for a mistrial when Brundage did not testify after the trial court instructed Brundage, who had taken the stand in the presence of the jury, of his rights not to testify or say anything that might incriminate him; that he did not have to prove anything, including his lack of guilt because the burden was on the state; that no one could make him testify and no harmful inference could be drawn from his not testifying; and that if he did testify both sides could question him. The trial court then asked the defendant if he wished to testify, and Brundage announced from the witness stand that he did not. The trial court immediately instructed the jury it could draw no inferences from this and that the burden is on the state “and that’s where it stays.” The record shows that although the defense rested without calling any witnesses, the jury found Brundage guilty only of one of the three counts against him, acquitted him of another count, and the jury could not reach a verdict on the other count.

More significantly, however, the record also shows that the trial court’s advice to Brundage was preceded by trial defense counsel’s request that the trial court lay those rights on the record. Since Brundage’s counsel, in the presence of the jury, requested this advice be given, he cannot seek a mistrial after the request was granted. Kellar v. State, 226 Ga. 432, 433 (175 SE2d 654). Indeed, induced error is not a proper basis for claiming prejudice. Sullens v. State, 239 Ga. 766, 767 (238 SE2d 864); Martin v. State, 193 Ga. App. 581, 584 (388 SE2d 420). In view of the circumstances of Brundage’s request, there was no basis for the granting of a mistrial.

Thus, pretermitting whether Brundage’s trial defense counsel’s performance was deficient within the meaning of Strickland by not moving for a mistrial, we find there exists no reasonable probability that the outcome of this case would have been different within the meaning of Strickland v. Washington, Thompson, and Young.

Accordingly, Brundage’s enumeration is without merit.

Judgment affirmed.

Andrews, J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I concur fully in Division 1. I concur in the result in Division 2 but not in all that is written. I do agree that the basis for the claim of effectiveness of counsel yields to a ruling on the existing record, as a matter of law, rejecting that basis.

Appellant asserts that trial counsel was ineffective because he failed to move for a mistrial after the court instructed the defendant, who had taken the witness stand, of his rights. See OCGA § 24-9-20. Failure to object or move for a mistrial would, in effect, waive alleged error so that it could not be raised for the first time in a motion for new trial. Roberts v. State, 231 Ga. 395, 396 (202 SE2d 43) (1973). Thus it might constitute ineffective assistance of counsel to fail to raise it timely.

However, as described in the majority opinion, all of what the trial court advised defendant is preceded by the following colloquy:

The court: “Mr. Anderson (appellant’s trial counsel), would you like the Court to advise Mr. Brundage of his rights?”

Mr. Anderson: “Yes, Your Honor. I would like those rights laid out on the record please.”

Appellant does not assert that counsel was ineffective because he made this request, but only because he failed to seek a mistrial when the request was granted. A party cannot invite error and then complain of it. Smith v. State, 202 Ga. App. 362 (414 SE2d 504) (1991). Since counsel for defendant had asked for this advice to be given when the jury was present, it would not have been a valid ground for mistrial. Kellar v. State, 226 Ga. 432 (3) (175 SE2d 654) (1970). That being so, counsel was not constitutionally ineffective for not moving for a mistrial because there was no valid ground for it.

Appellant does not contend that counsel’s request in the first place constituted ineffectiveness of counsel. So this case differs from Wynn v. State, 230 Ga. 202 (196 SE2d 401) (1973), where the trial court on its own “insisted on advising [defendant] in the presence of the jury concerning his right to be sworn as a witness and to make an unsworn statement.” Wynn’s counsel did not ask for such.

The conclusion must be reached that counsel was not deficient in failing to seek a mistrial. That being so, I agree that it serves no purpose to remand the case for an evidentiary hearing, because the result must be the same. Lee v. State, 199 Ga. App. 246, 247 (3) (404 SE2d 598) (1991), in disposing of the first two bases of appellant’s claim of ineffective assistance, illustrates that where such a claim is newly raised on appeal by new counsel, it need not always be remanded but may be subject to decision as a matter of law. The same procedural principle is recognized in Phillips v. State, 204 Ga. App. 698, 703 (420 SE2d 316) (1992), where the posture of the case prevented the court from determining, as a matter of law, whether appellant was denied effective assistance. The Supreme Court, in Smith v. State, 262 Ga. 480 (422 SE2d 173) (1992), ruled on the merits of the claim without a trial court hearing or decision on the merits.

Decided March 19, 1993.

Mullís, Marshall, Lindley & Powell, A. G. Knowles, for appellant.

Willis B. Sparks III, District Attorney, Howard Z. Simms, Thomas J. Matthews, Assistant District Attorneys, for appellee.

It should be pointed out that, although counsel on appeal was not appointed until after the motion for new trial was denied, he could have filed an extraordinary motion for new trial raising the ground and had it ruled on by the trial court before bringing it to this court. OCGA § 5-5-41 (b).