author: Miller, Judge. Eldridge, Judge, Barnes, Judge,

text:
    A01A1579.
    BOWEN et al. v. COCHRAN et al.
    (556 SE2d 530)
   Miller, Judge.

David R. Bowen and his wife sued Fred Cochran and Classy Cooker Manufacturer’s, Inc. for injuries he sustained when a gas cooking grill manufactured by Cochran exploded, causing severe bums to Bowen’s hands and forearms. The jury found in favor of Cochran. On appeal Bowen contends that the court erred in denying his motions for directed verdict on Cochran’s affirmative defenses of assumption of the risk and contributory negligence and erred in charging the jury on these defenses. We discern no error and affirm.

A directed verdict is proper where there is no conflict in the evidence as to any material issue and the evidence introduced with all reasonable inferences therefrom demands a particular verdict. “Except in plain, palpable and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached, questions of contributory negligence and assumption of risk are for the jury.”

The evidence showed that Bowen, who had previously bought two other cookers from Cochran, purchased a third cooker and was using it at his home. Bowen rolled up newspaper to light the burner on the cooker and then opened the gas valve. The cooker lit, and Bowen went into his home for approximately 30 minutes. When Bowen returned, the flame had extinguished, so he raised the lid and turned off the gas. After waiting for a few minutes for the gas smell to dissipate, Bowen made three attempts to relight the cooker by once again lighting the end of rolled up newspaper and placing it on the burner and then opening the gas valve. During the third attempt, Bowen bent over to look into the cooker when a burst of flame exploded, knocking him to the ground and burning his hands and forearms.

1. Bowen argues that the court erred in denying his motion for directed verdict on Cochran’s affirmative defense of assumption of the risk.

Cochran argues that he explained to Bowen how to properly light the cooker with a trigger lighter, but that Bowen instead chose to light the cooker with balls of newspaper and a match. He further argues that he also explained to Bowen how to properly ventilate the cooker if the flame went out and that Bowen was aware through his own experience that a gas cooker must be ventilated after the flame extinguishes before it can be relit.

To show assumption of the risk, “the defendant must present evidence that the plaintiff had actual knowledge of the danger, understood and appreciated the risk, and voluntarily exposed himself to that risk.” Cochran testified that the cookers are lit by opening the sliding door for ventilation, holding the trigger lighter to the burner to start a flame, and then turning on the gas valve. Although there were no written instructions on how to operate the cooker, Cochran provided. Bowen with a trigger lighter and explained to him how to light the cooker. Cochran himself observed Bowen improperly light the cooker by lighting the orifice at the end where the gas enters. He explained to Bowen that he was lighting it improperly and once again showed Bowen the proper lighting procedure.

There must be some evidence that Bowen knew that the cooker could explode if not properly lighted and ventilated, that he understood the risk if the cooker was improperly operated, and that he nevertheless decided to risk operating the cooker improperly. The evidence in fact showed that Bowen lit the cooker improperly on at least two occasions and in two different manners: once by using newspaper instead of the trigger lighter provided by Cochran, and a second time by lighting the end close to where the gas enters. Bowen also left the cooker unattended for 30 minutes with the gas turned on. From this evidence a jury could conclude that Bowen did in fact assume the risk of a flame bursting from the cooker. As there is some evidence to support the affirmative defense of assumption of the risk, the court did not err in denying Bowen’s motion for directed verdict on this ground.

2. The jury could also have concluded that Bowen was contributorily negligent. “A plaintiff’s contributory negligence bars any recovery whatsoever if his failure to use ordinary care for his own safety is the sole proximate cause of his injuries, even though such negligence concurs with the negligence of the defendant.” The evidence that Bowen could have assumed the risk as explained in Division 1 is also evidence from which a jury could conclude that Bowen failed to use ordinary care in operating the cooker. Thus, the court did not err in denying Bowen’s motion for directed verdict on this ground.

The dissent argues that the defense’s pleadings did not properly raise the affirmative defense of assumption of the risk, but this is irrelevant in light of the fact that this defense was raised by the evidence without objection, thereby amending the pleadings. Moreover, in his motion for directed verdict, Bowen argued that there was no evidence to support assumption of the risk, not that this defense was improperly pleaded. It was for the jury to weigh the evidence and decide whether the cooker’s potentially faulty design was to blame for Bowen’s injuries or that it was Bowen’s own actions in lighting the cooker with newspaper and a match (that creates a much larger flame than a trigger lighter), or his leaving the cooker unattended for 30 minutes, or improperly lighting the cooker as he had previously. Here, there is a conflict in the evidence as to a material issue, and the evidence does not demand a particular verdict. As there was some evidence to support assumption of the risk and contributory negligence, the court did not err in denying the motion for directed verdict.

3. Bowen argues that the court erred in instructing the jury on the affirmative defenses of assumption of the risk and contributory negligence. “When there is any evidence, however slight, upon a particular issue, it is not error for the court to charge the law in relation to that issue.” As there was evidence from which a jury could con-elude that Bowen assumed the risk of his injury and was contributorily negligent, the court did not err in giving such instructions.

Judgment affirmed.

Andrews, P. J, Johnson, P. J., Ruffin and Ellington, JJ., concur. Eldridge and Barnes, JJ., dissent.

Eldridge, Judge,

dissenting.

I respectfully dissent, because neither the pleadings nor any evidence properly raises or supports the affirmative defense of assumption of the risk; therefore, it was error for the trial court to deny the motion for directed verdict and to charge on assumption of the risk over timely objection.

Cochran verbally instructed Bowen that to light the propane gas cooker the gas is turned on and the source of ignition is inserted through the opening of the sliding door to the burner, and that, when lighted, the needle valve is adjusted; if the cooker flame goes out, then the propane gas valve is shut off; the lid is opened and closed several times to force the collected gas out, because it is heavier than air; the gas is allowed to dissipate for five minutes; the gas valve is again opened; and the source of ignition is again touched to the burner until it lights. Bowen testified that he lit the cooker; that he left it burning; that he was gone about 30 minutes; and that on his return he found that the burner flame was out.

So I raised the lid [,] cut the gas off at the tank[,] and cut the needle valve off. ... I was waiting for a few minutes to be sure that you didn’t smell any more gas. And, of course, I left the lid up also. ... I first got me some paper, rolled it up real tight, lit the end of it, laid it back onto the burner [,] . . . opened the gas valve, and then opened the needle valve. I could hear the gas . . . then it did not light. . . . So I immediately turned the gas off again, turned the needle valve off again because,. . . trying to be very cautious as far as lighting this particular type of cooker. So I waited a few more minutes, got me another piece of paper, rolled it up, lit it, did the same process, leaning down laying the paper on the pipe, stick my arm way up in there, got it laying on the burner again, opened the gas valve at the tank and then opened the needle valve. Well, when I opened the needle valve, of course, you hear the gas spewing. It didn’t light. Well, I laid — eased down, started trying to look up in there to see where the flame was, and I could see the flame on the paper. Then all of a sudden this big ball of fire came at me, knocked me down.

Except for the use of a lighted paper laid on the burner so that his hand was not in the cooker with a trigger lighter flame, this was how Cochran instructed Bowen that lighting and relighting was to be done. In point of fact, to use a trigger lighter flame by putting a hand inside the cooker after the gas was turned on, instead of placing a burning paper on the burner and turning on the gas, was more dangerous. Thus, there was no evidence in the record to raise the issue of an assumption of the risk affirmative defense.

Obviously in this case, the gas buildup near the burner was ventilated sufficiently so that three attempts to relight the cooker with a flaming taper neither immediately lit the burner nor caused an instantaneous explosion upon the burning paper being placed in the opening, no less on the burner. If the cooker had not been ventilated, then the introduction of a trigger lighter flame or a flaming paper taper would have caused an explosion as soon as the flame reached the cooker opening. Thus, in fact the evidence was that Bowen placed the burning paper on the burner where it continued to burn without igniting the burner or the pooled gas immediately. However, the single door and the construction of the underside of the cooker with the drip pan allowed gas to pool to the top of the pan wall, because the heavier than air propane collects in a pool in the pan at the bottom of the cooker. The dead space in the burner caused a delayed ignition of the burner, which in turn ignited the accumulated gas pool in the pan, because the design was inadequate to ventilate adequately the cooker of the trapped gas in the pan, and the burner orifices allowed delayed ignition in the dead zone of the burner.

Cochran inspected the cooker after a worker was injured in a prior similar occurrence and told Bowen that everything was all right with the cooker as to design and function. Thus, any subjective knowledge of Bowen that the cooker was hazardous, because the cooker had a tendency to trap pooled gas when it had to be relit, was nullified by the assurances made by Cochran.

Neither the answer to the complaint nor the pretrial order raised the affirmative defense of assumption of the risk. The Civil Practice Act mandates that an affirmative defense be raised in the answer, in the pretrial order, or in a motion to provide timely notice of the issues to be tried. OCGA §§ 9-11-8 (c); 9-11-16; O’Quinn v. O’Quinn, 237 Ga. 653, 654 (229 SE2d 428) (1976) (affirmative defense raised by answer or motion for adjudication on the merits); Rimes Tractor & Equip, v. Agricredit Acceptance Corp., 216 Ga. App. 249, 250-251 (454 SE2d 564) (1995) (affirmative defense raised by pleadings or motion to a counterclaim); Brown v. Quarles, 154 Ga. App. 350, 351-352 (268 SE2d 403) (1980) (affirmative defense raised by motion); Bailey v. Polote, 152 Ga. App. 255, 257 (2) (262 SE2d 551) (1979) (same). The defendant did not amend his answer to raise the affirmative defense of assumption of the risk; therefore, the trial court erred in allowing any evidence purporting to prove such defense. Brown v. Little, 227 Ga. App. 484, 485 (1) (489 SE2d 596) (1997) (reversible error for trial court to allow evidence at trial over objection when issue not raised by pleadings, amendment, or pretrial order). Since the evidence failed to establish each and every element of the defense of assumption of the risk, then the evidence admitted at trial did not amend the pleadings to conform to the evidence; further, the plaintiff did not consent to such issue being tried because he moved for a directed verdict on such issue. OCGA § 9-11-15 (b); Borenstein v. Blumenfeld, 250 Ga. 606, 607-608 (1) (299 SE2d 727) (1983) (where evidence admissible for one issue raised in the pleadings, such evidence cannot be treated as a waived objection to allow it to amend the pleadings for an issue not pled); McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 514 (250 SE2d 424) (1978) (the admission at trial of unobjected-to evidence which raises an unpled defense acts as either an express or implied consent to try such issue and amends the pleadings to conform to the evidence admitted at trial); Brackett v. Cartwright, 231 Ga. App. 536, 537-538 (1) (499 SE2d 905) (1998). Thus, procedurally, the trial court erred as a matter of law in not granting the motion for directed verdict as to this issue not properly placed before the jury.

More importantly, the trial court erred in failing to grant the directed verdict as to the defense of assumption of the risk, because the defendant failed to affirmatively prove each essential element of such defense, which would allow the jury to decide the issue.

The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that he[,] without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks. Knowledge of the risk is the watchword of assumption of risk, and means both actual and subjective knowledge on the plaintiff’s part. The knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. The knowledge requirement does not refer to a plaintiff’s comprehension of general, non-specific risks that might be associated with such conditions or activities. ... In its simplest and primary sense, assumption of the risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.

(Punctuation and footnotes omitted; emphasis in original.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996). See also Muldovan v. McEachern, 271 Ga. 805, 807-808 (2) (523 SE2d 566) (1999); Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 824 (4) (409 SE2d 524) (1991). Even if any use of the cooker at all constituted generally a known danger because butane gas was used and the danger of gas collecting existed, then this still would fail to constitute an assumption of the risk, because the specific danger of gas collecting in the grease pit and the dead zone causing delayed ignition was neither actually and subjectively known nor understood and appreciated as a specific hazard. Beringause v. Fogleman Truck Lines, supra at 823-824.

A plaintiff who encounters a known general danger does not thereby consent to any future negligence of the defendant.

This is contributory negligence pure and simple; it is not assumption of risk. The plaintiff has exposed himself to the risk of future harm, but he has not consented to relieve the defendant of any future duty to act with reasonable care. This is a distinction which has baffled a great many law students, some judges, and unhappily a few very learned legal writers.

(Citation, punctuation and emphasis omitted.) Beringause v. Fogleman Truck Lines, supra at 823 (4).

Thus, the evidence failed to show both an actual and a specific subjective knowledge or understanding and appreciation of the specific risk that the gas would pool in the pan so that normal ventilation would not dissipate the heavy gas from the bottom pan of the cooker and that the gas -burner had delayed ignition from a dead zone causing the hazard of a possible flashback upon ultimate ignition of the burner. The trial court erred in treating a comprehension of a general, nonspecific, awareness and understanding of a risk of gas collecting as the actual and subjective knowledge mandated as an essential element of this defense. Jimenez v. Morgan Drive Away, 238 Ga. App. 638, 639-640 (1) (519 SE2d 722) (1999); Beringause v. Fogleman Truck Lines, supra at 823-825 (4). The trial court erred as a matter of law in denying the motion for directed verdict.

Further, the trial court erred as a matter of law in giving an incomplete charge on the defense of assumption of the risk, because it failed to charge on both actual and subjective knowledge of a specific risk and understanding and appreciation of such specific risk and that the knowledge required did not refer to a plaintiff’s comprehension of general, nonspecific, risks that might be associated with such condition or activities. Beringause v. Fogleman Truck Lines, supra at 824; see also Jimenez v. Morgan Drive Away, supra at 639-640. The better practice is for the trial court to give the above language quoted from Vaughn v. Pleasent verbatim as the charge on assumption of the risk.

Barnes, Judge,

dissenting.

I respectfully dissent, because the trial court should have directed a verdict on the assumption of risk defense, and because the trial court erred in charging the jury on assumption of risk.

“Knowledge of the risk is the watchword of assumption of risk.” (Citation and punctuation omitted.) Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 824 (4) (409 SE2d 524) (1991). We do not presume that a plaintiff has assumed the risk of activities or conditions he does not know about. “Moreover, he must not only know of the facts which create the danger, but he must comprehend and appreciate the nature of the danger he confronts. . . .” (Citation and punctuation omitted.) Id.

The defendant argues that the plaintiff assumed the risk of an explosion because he used a rolled-up newspaper to light the gas rather than the trigger lighter provided. Bowen testified that after he lit the gas cooker, it went out and he unsuccessfully tried twice to relight it before it exploded. He knew he should be “very cautious as far as lighting this particular type of cooker,” and testified that he aired out the grill before the first unsuccessful attempt to relight it and then immediately turned the gas off when it did not light. When the device did not light the second time, he tried to see where his flame was located, but an explosion knocked him down and burned him severely. He further testified that he did not know there was a wrong way to light the cooker.

The defendant testified that he knew of no problem with the cooker unless it was lit improperly and that he explained to buyers that if the flame went out, they should open the lid to ventilate it and then relight it. Plaintiff’s expert design engineer testified that the burner had “a great propensity” not to light quickly, because one end of the burner emitted insufficient gas to light the flame immediately. Only when enough gas had gathered inside the grill to touch the flame did the device ignite “dramatically.” Further, because the burner tube had only one opening instead of two, the release of any accumulated gas would be very slow. The gas, being heavier than air, would pool in the bottom of the burner tube, so that its only means of escape would be to spill out of the single opening after it had pooled. The defendant presented no testimony, expert or otherwise, to dispute or contradict the engineer’s explanation for the explosion that burned the plaintiff.

Decided November 15, 2001.

Mills & Moss, David C. Moss, for appellants.

Seacrest, Karesh, Tate & Bicknese, Karsten Bicknese, Daniel S. Wright, for appellees.

Although the defendant said he told the plaintiff to use the trigger lighter, no evidence indicated that he also told him that using an alternate lighting source might cause the gas cooker to explode. Further, no evidence at trial suggested that using a lighted, rolled piece of newspaper rather than the trigger lighter caused the explosion. If these facts constitute the assumption of risk, then anyone who lights a gas grill with a source other than that provided by the manufacturer has assumed the risk of explosion, a ridiculous result.

In order for the plaintiff in this case to have assumed the risk, there must be evidence that, knowing that the cooker did not light properly, that gas pooled in the burner tube when the flame went out, and that the gas did not dissipate due to the single-opening construction, he then made a conscious decision to attempt to relight the unit despite the danger of the pooled gas exploding. To the contrary, the defendant himself testified that he instructed purchasers to ventilate the unit by lifting the lid if the flame went out, which the plaintiff testified he did. No evidence existed in this case showing the plaintiff knew or should have known of the specific risk that caused the explosion, and the trial court erred in failing to grant a directed verdict and in charging the jury on the assumption of risk.

The evidence creates an issue for the jury regarding contributory negligence, but not regarding assumption of risk. “If, in the exercise of ordinary reasonable care for his own safety, [plaintiff] could and should have discovered the danger before he actually did and could and should have avoided the [injury], then he would have been contributorily negligent, but he would not have assumed the risk.” Beringause v. Fogleman Truck Lines, supra, 200 Ga. App. at 824 (4).

For these reasons, I respectfully dissent to the majority opinion.

       The trial court granted a directed verdict in favor of Classy Cooker Manufacturer’s, Inc., finding that the cooker was not sold through that entity.

       OCGA § 9-11-50 (a); Gen. Manufactured, Housing v. Murray, 233 Ga. App. 382, 383 (1) (504 SE2d 220) (1998).

       (Punctuation and footnote omitted.) North Ga. Elec. Membership Corp. v. Webb, 246 Ga. App. 316, 319 (2) (540 SE2d 271) (2000); see Bible v. Jack Eckerd Corp., 227 Ga. App. 882, 885 (490 SE2d 553) (1997).

       (Footnote omitted.) Cotton v. Bowen, 241 Ga. App. 543 (1) (524 SE2d 737) (1999).

       See Silva v. Smalls, 200 Ga. App. 141, 143 (1) (407 SE2d 110) (1991).

       (Footnote omitted.) Webb, supra, 246 Ga. App. at 319 (2).

       See Hickox v. Seaboard System R., 183 Ga. App. 330, 332 (358 SE2d 889) (1987); see also Spears v. Mires, 187 Ga. App. 656, 658 (3) (371 SE2d 122) (1988); cf. Fincher v. Golden Glove, 195 Ga. App. 83, 84 (1) (392 SE2d 303) (1990).

       See OCGA § 9-11-15 (b); McCollum v. Doe, 190 Ga. App. 444, 445 (2) (379 SE2d 233) (1989).

       (Citations and punctuation omitted.) Johnson v. Loggins, 211 Ga. App. 265, 266 (3) (438 SE2d 711) (1993).

       See id.; Monroe v. Southern R. Co., 210 Ga. App. 597, 598 (1) (436 SE2d 568) (1993).


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A01A2054.
    HOWARD v. THE STATE.
    (556 SE2d 536)
   Johnson, Presiding Judge.

A McDuffie County jury found Bobby Howard guilty of child molestation for acts committed against his live-in girlfriend’s nine-year-old daughter, J. D. Howard appeals from the denial of his motion for a new trial. He asserts that the trial court erroneously admitted hearsay evidence and that he was denied effective assistance of counsel. Because we find the enumerations without merit, we affirm.

The evidence presented at trial shows that on three or four different occasions Howard, the live-in boyfriend of J. D.’s mother, induced J. D. to masturbate him. The child testified that the first incident happened when she was in the third grade and the last incident occurred in August 1999, before she started the fourth grade. J. D. testified that Howard told her that if she performed the acts he would give her money and “stop [her] mama from whipping her.” J. D. later told her mother about the acts, and on September 5, 1999, the McDuffie County Sheriff’s Department and Department of Family & Children Services (DFACS) initiated an investigation. J. D. subsequently made a videotaped statement of the accusations, and Howard was arrested. Although DFACS devised a safety plan for J. D. which prohibited Howard from staying in the residence, Howard was later found at J. D.’s residence in violation of the plan. J. D. was removed from the home and temporarily placed in foster care. J. D. testified that prior to her removal, her mother asked her to deny that Howard molested her.

1. Howard contends that the trial court erred by admitting the videotaped statement of J. D. into evidence because it lacks sufficient indicia of reliability as required by the Child Hearsay Statute. J. D. was interviewed on September 10, 1999, at the Child Advocacy Center in Augusta. During J. D.’s videotaped statement, the interviewer left the room for a few minutes, and J. D. made, on tape, spontaneous comments about the defendant’s actions. A pretrial hearing was held on Howard’s subsequent motion in limine to exclude that portion of the videotape as violative of the Child Hearsay Statute, but the trial court denied the motion and allowed the tape to run in its entirety. During the trial, the videotape was admitted subject to the earlier objection. Although Howard did not object to the admission of the entire videotape, at the hearing on his motion for a new trial, he argued that the entire videotape was admitted in error and that his trial counsel was ineffective for not objecting to its admittance at the end of the state’s case.

Under the Child Hearsay Statute, a statement made by a child under the age of 14 that describes physical abuse by another is admissible in evidence “if the child is available to testify in the proceedings and the court finds that the circumstances of the statements provide sufficient indicia of reliability.” In Gregg v. State, we set forth certain factors the trial court may consider when deciding if a child’s statements provide sufficient indicia of reliability pursuant to OCGA § 24-3-16. The factors include, but are not limited to: (1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, the type of coaching and circumstances surrounding the same, and, the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child. These factors are to be applied neither in mechanical nor mathematical fashion, but in that manner best calculated to facilitate determination of the existence or absence of the requisite degree of trustworthiness. The trial court has broad discretion in determining the admissibility of child hearsay evidence, and we will reverse a trial court’s ruling on the admissibility of statements under OCGA § 24-3-16 only if the trial court abused its discretion.

Here J. D.’s statement was taken at a neutral location with only one person present, the interviewer. A police investigator and representative from DFACS viewed the interview from behind a two-way mirror. The interviewer testified that J. D. did not appear to be under emotional or physical distress. She also testified that the answers appeared to be freely given and that J. D. did not appear to be coached or under any influence. Further, J. D. testified at the hearing, and Howard had the opportunity to cross-examine her about any statements that were made, including the ones that were made when the interviewer was out of the room.

Howard argues that several factors weighed against the admission of J. D.’s statement including the lack of spontaneity and that J. D. was under the threat of removal from her home if she changed her story. Howard’s primary arguments go to the credibility of the witness. Determinations as to the credibility of a witness are a matter solely within the jury’s purview and will not be disturbed on appeal. And while it is true that the specter of being removed from the home loomed over J. D., she was in danger of being removed if she did not change her story, rather than if she changed her story. Specifically, had she denied the molestation, as her mother allegedly requested, she would not have been removed from the home when Howard was found in the residence in violation of the safety plan. We cannot say that the trial court abused its discretion in admitting the videotape.

Howard also argues that his trial counsel’s failure to object to the admission of the entire videotaped statement after the state rested shows that he received ineffective assistance of counsel. We review a claim of ineffective assistance of counsel under the standard set out in Strickland v. Washington. The defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Counsel’s decisions on which motions and objections to make are matters of trial strategy and tactics that are within the lawyer’s exclusive province and do not amount to ineffective assistance of counsel.

At the motion for new trial, Howard’s attorney testified that upon reviewing the Gregg case prior to the trial, he determined that any objection to the admission of the videotape would not have been sustainable. Accordingly, the trial court was entitled to conclude that the decision not to pursue the objection was strategic and, thus, not ineffective assistance.

2. In his next enumeration of error, Howard contends that the trial court erred in admitting testimony regarding the DFACS safety plan, asserting that the safety plan was not relevant and was used to improperly bolster J. D.’s credibility. Upon Howard’s objection, the trial court excused the jury and questioned the state about the relevancy of the safety plan and found the testimony regarding the plan admissible under the Child Hearsay Statute.

Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court. Even though alone it may not be sufficient, evidence which in connection with other evidence tends, even slightly, to prove, explain, or illustrate a fact is probative and relevant. Doubt as to relevancy should be resolved in favor of admission and against exclusion, with the evidence’s weight left to the jury. Further, this Court has held that the Child Hearsay Statute “actually contemplates testimony . . . from both the child and those witnessing the child’s later reaction, even if the hearsay may be ‘bolstering.’ . . . Any ‘bolstering’ can be explored by defendant in cross-examination.” Moreover, the trial court gave curative instructions that the safety plan was admissible solely for the purpose of determining the reliability of J. D.’s statement. Because we find the evidence relevant to J. D.’s credibility, the trial court did not abuse its discretion in admitting the testimony.

Decided November 15, 2001.

Knox & Swan, William B. Swan, Jr., for appellant.

Dennis C. Sanders, District Attorney, Durwood R. Davis, Assistant District Attorney, for appellee.

3. In his final enumeration of error, Howard contends that the trial court erred in allowing a letter written by J. D. to be admitted under the Child Hearsay Statute because it amounted to double hearsay.

The mother of one of J. D.’s playmates read a letter that she said was written by J. D. In the letter, addressed “to the world,” J. D. wrote that her mother did not love her and asked that she deny that Howard molested her. Although Howard objected at trial to the admission of the letter on the ground the letter was not properly authenticated, the hearsay basis now urged was not raised. Under such circumstances, there remains nothing for appellate review.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       OCGA § 24-3-16 provides:
      A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

       (Citations and punctuation omitted.) Right v. State, 242 Ga. App. 13, 15-16 (1) (528 SE2d 542) (2000).

       201 Ga. App. 238, 240-241 (3) (b) (411 SE2d 65) (1991).

       Id.

       Id. at 241 (3) (b).

        Right, supra.

        Ingram v. State, 192 Ga. App. 196, 198-199 (2) (384 SE2d 262) (1989).

       OCGA § 24-9-80; Johnson v. State, 245 Ga. App. 690, 691 (1) (538 SE2d 766) (2000).

       See Knight v. State, 239 Ga. App. 710, 711-712 (1) (521 SE2d 851) (1999).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782 (1) (325 SE2d 362) (1985).

        Smith, supra.

        Esquivel v. State, 236 Ga. App. 325, 326 (512 SE2d 61) (1999); Rivers v. State, 271 Ga. 115, 118 (2) (b) (516 SE2d 525) (1999).

       See id.

        Wells v. State, 243 Ga. App. 629, 630-631 (2) (534 SE2d 106) (2000).

        Rayburn v. State, 194 Ga. App. 676, 677 (3) (391 SE2d 780) (1990).

        Lindo v. State, 218 Ga. App. 756, 759 (3) (463 SE2d 148) (1995).


author: Phipps, Judge.

text:
    A01A2303.
    PETERSON v. THE STATE.
    (556 SE2d 514)
   Phipps, Judge.

Rodney Peterson was convicted at a bench trial of possession of cocaine and possession of a firearm by a first offender probationer. Peterson contends that (1) the trial court erred by denying his motion to suppress cocaine found in a plastic bag inside his clothing and (2) the evidence was insufficient to support his conviction of possession of a firearm. We agree with Peterson’s second contention but not his first. Therefore, we affirm in part and reverse in part.

1. In reviewing a trial court’s ruling on a motion to suppress, we construe the evidence in the light most favorable to the trial court’s ruling. We affirm that ruling if it is right for any reason.

The record shows that in September 1999, a confidential informant told Detective G. M. Morrison that a man he knew as “Slick” was selling cocaine from his apartment and that the man kept the cocaine either on his person or inside shoes in the closet. The informant also told Morrison that he had seen weapons in the apartment. On September 2 and 8, under police supervision, the informant went to the apartment and purchased cocaine using law enforcement funds. On September 9, Morrison obtained a warrant to search the apartment. The warrant permitted the search of the apartment for cocaine, currency, and “documents related to the sale/possession of controlled substances.” Neither the warrant nor the affidavit mentioned any person who might be found inside the apartment.

When Morrison and other officers entered the apartment to execute the warrant, two men were standing at the dining room table. The officers “told everybody to get down on the floor and show us their hands.” One of the men, later identified as Peterson, fled to the bedroom. When the officers reached him, he lay facedown on the bedroom floor with his hands outstretched. A woman lay on the floor nearby.

Detective R. L. Franklin patted down Peterson for weapons as part of a routine procedure to ensure officer safety. Franklin found no weapons, but as he touched the front of Peterson’s pants, he “could feel and hear plastic material underneath [the] pants.” Franklin then lifted up Peterson’s shirt and saw a piece of “what appeared to be a plastic sandwich bag-type material.” Franklin removed the bag, which contained a substance .that later tested positive for cocaine. The officers also found marijuana on the kitchen table and on the bed, as well as two handguns in shoeboxes in the bedroom closet.

Peterson claims the trial court should have granted his motion to suppress the cocaine found on his person. He argues that Franklin’s pat-down search of him and subsequent seizure of the bag of cocaine were unjustified. We disagree.

“When executing a search warrant, it is illegal to search a person not named in the warrant but found on the premises to be searched, without independent justification for a personal search.” Under OCGA § 17-5-28, the justifications for such a search are (1) protecting the officers executing the warrant from attack and (2) preventing the disposal or concealment of items described in the warrant. A search to prevent the concealment or disposal of items sought in the warrant is justified if there is a nexus between the person searched and the probable criminal activity that gave rise to the warrant “which logically leads to a belief that the person is in possession of a targeted item. [Cit.]” We have held that such a nexus exists if the person searched was in a position to assist in the concealment or disposal of items sought in the warrant, or if he attempted flight from inside the premises subject to the warrant.

In this case, the officers were searching for drugs, money, and papers — items a person easily can conceal on his body — and they had been told that “Slick” kept cocaine on his person. The officers saw marijuana in plain view in two different places in the apartment, thus confirming their suspicions that drug activity was afoot. Peterson — who could have been “Slick,” as far as the officers knew — fled when the officers entered the apartment and was temporarily out of their sight, during which time he could have been concealing contraband. Under these circumstances, the search of Peterson was justified under OCGA § 17-5-28 (2). Thus, the trial court did not err in denying the motion to suppress.

2. Peterson argues that there was insufficient evidence that he was in constructive possession of a firearm. We agree.

Constructive possession may be shown by evidence that the defendant knowingly had both the power and the intention at a given time to exercise dominion over the contraband in question. Merely finding contraband on premises occupied by the defendant does not support a conviction if the evidence shows that persons other than the defendant had equal opportunity to commit the crime. Likewise, mere spatial proximity between the defendant and the contraband will not support a finding of constructive possession.

The firearms were found in shoeboxes in the bedroom closet. Morrison testified that photographs of Peterson were found in the apartment, as well as “paperwork” bearing his name. There was no evidence that Peterson had any clothing or personal items in the apartment. Moreover, Morrison admitted that the police never ascertained who was leasing the apartment, that Peterson’s “paperwork” did not contain an address, and that the photographs of Peterson were not of him alone. Morrison also admitted that he neither checked the guns for fingerprints nor found out to whom they were registered.

Decided November 15, 2001.

Robert L. Mack, Jr., for appellant.

J. Tom Morgan, District Attorney, Anne M. Long, Barbara B. Conroy, Assistant District Attorneys, for appellee.

Thus, the only evidence linking Peterson to the guns, other than his proximity to them, was the discovery at the apartment where the guns were found of paperwork bearing his name and photographs depicting him. This circumstantial evidence did not exclude the possibility that the guns belonged to the others present in the apartment — the woman found in the bedroom or the man in the dining room. Accordingly, the conviction of possession of a firearm must be reversed.

Judgment affirmed in part and reversed in part.

Smith, P. J., and Barnes, J., concur.

        State v. Sims, 248 Ga. App. 277, 278 (546 SE2d 47) (2001).

       (Footnote omitted.) State v. Holmes, 240 Ga. App. 332, 333 (525 SE2d 698) (1999).

        Steward, v. State, 237 Ga. App. 672, 674 (516 SE2d 534) (1999).

        Holmes, supra at 333.

       See Moody v. State, 232 Ga. App. 499, 505 (4) (b) (502 SE2d 323) (1998); Travis v. State, 192 Ga. App. 695, 696 (385 SE2d 779) (1989).

        Simpson v. State, 213 Ga. App. 143, 144-145 (1) (444 SE2d 115) (1994).

        Brown v. State, 244 Ga. App. 440, 442 (2) (535 SE2d 785) (2000).

       Id.

       See, e.g., London v. State, 235 Ga. App. 30, 33 (2) (508 SE2d 247) (1998).


author: Ruffin, Judge.

text:
    A01A2426.
    SMITH v. THE STATE.
    (556 SE2d 527)
   Ruffin, Judge.

In January 2001, Thomas J. Smith filed a motion for an out-of-time appeal. The trial court denied the motion, and this appeal ensued. For reasons that follow, we reverse the trial court’s ruling and remand for further consideration.

It is well settled that “[a] defendant may be entitled to an out-of-time appeal if he was deprived of his right to appeal by his attorney’s negligence or ignorance, or if he was not adequately informed of his appeal rights.” Nevertheless, a defendant may,

by his own conduct or in concert with his counsel, forfeit his right to appeal by sleeping on his rights. The disposition of a motion for out-of-time appeal thus turns on the issue of who ultimately bore the responsibility for the failure to file a timely appeal. Where the record does not indicate that the trial court adequately addressed this dispositive issue, we will remand for a hearing to consider it.

Here, the trial court determined that Smith was not entitled to an out-of-time appeal because he “already had his appeal considered by the Court of Appeals.” However, this Court dismissed Smith’s appeal because it was not timely filed and, thus, never reached the merits. Accordingly, the issue remains as to whether Smith is entitled to an out-of-time appeal. The trial court never conducted an evidentiary hearing to address this issue, and we are unable to ascertain who bore the ultimate responsibility for failing to file a timely appeal. Under these circumstances, we must vacate the trial court’s order denying Smith’s motion and remand the case for an evidentiary hearing on his motion. Indeed, the State concedes that Smith is entitled to such hearing.

Decided November 15, 2001.

John M. Daley, for appellant.

Fred R. Simpson, District Attorney, Charles S. Cox, Assistant District Attorney, for appellee.

Judgment reversed and remanded with direction.

Johnson, P. J., and Ellington, J., concur.

       Id. at 516.

        Brennan v. State, 247 Ga. App. 515 (544 SE2d 210) (2001).

       (Punctuation and footnotes omitted.) Id.


author: JOHNSON, Presiding Judge.

text:
    A01A2542.
    HILL v. THE STATE.
    (556 SE2d 545)
   JOHNSON, Presiding Judge.

A trial judge, sitting without a jury, found Holly Day Hill guilty of driving under the influence of alcohol. In her sole enumeration of error, Hill contends the trial court erred in denying her motion to suppress evidence because she was in custody and had not been read her Miranda warnings. We find no error and affirm Hill’s conviction.

When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts . . . are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

Viewed in this light, the evidence shows that officers were dispatched to an accident scene. Upon arrival, they found a power outage in the neighborhood and a car sitting on top of a transformer foundation. The driver was not at the scene. The officers noticed blood on the steering wheel, a crack in the windshield above the steering wheel, and the odor of alcohol in the car. Hill’s name and address were obtained from the license plate on the car.

Decided November 15, 2001.

John R. Greco, for appellant.

One of the officers drove three miles to Hill’s residence and asked Hill if she had been in an accident. Hill replied that she had, and she agreed to return to the scene of the accident. She then sat in the back of the police car. She was not handcuffed, but she could not exit the car because the rear doors lack interior door handles. The ride lasted approximately five to ten minutes.

The officer testified that he did not use any force and that Hill voluntarily returned to the scene of the accident with him. However, Hill’s fiancé testified that the officer told Hill she would have to return to the scene in the patrol car rather than ride with her fiancé. Subsequent investigation at the accident scene revealed that Hill was driving under the influence of alcohol.

Hill argues that she was in custody and under arrest when she was transported back to the accident scene and therefore entitled to Miranda warnings. We disagree. Hill’s transport back to the accident scene in the officer’s patrol car constituted a brief seizure supported by a reasonable and articulable suspicion and authorized by law. She had a duty to remain at the scene during the investigation of the accident, and “[a] reasonable person would conclude that, under the circumstances, [Hill’s] detention was temporary and not the equivalent of a formal arrest.”

Contrary to Hill’s assertion, the availability of her fiancé to drive Hill to the accident scene does not change the conclusion that Hill was not under arrest. The officer testified that he asked, and did not demand, that Hill return to the scene with him and that Hill voluntarily consented to return to the scene with him. Hill’s fiancé was not present for the entire conversation and was not part of the investigation. Moreover, any issue regarding the credibility of the witnesses was for the trial court and will not be disturbed absent an abuse of discretion. The trial court did not err in denying Hill’s motion to suppress evidence.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

Barry E. Morgan, Solicitor-General, Todd H. Ashley, Jessica K. Moss, Assistant Solicitors-General, for appellee.

       (Citation omitted.) Gunn v. State, 236 Ga. App. 901 (1) (514 SE2d 77) (1999).

       See id. at 902 (1); Morrissette v. State, 229 Ga. App. 420, 421-422 (1) (a) (494 SE2d 8) (1997).

       OCGA § 40-6-270 (a).

        Gunn, supra.

        Lyons v. State, 244 Ga. App. 658, 661 (1) (535 SE2d 841) (2000).


author: Barnes, Judge.

text:
    A01A1403.
    BANHI v. THE STATE.
    (555 SE2d 513)
   Barnes, Judge.

Roger Banhi, pro se, appeals from the trial court’s denial of his pro se motion to withdraw his guilty plea, asserting numerous errors. Because the trial court failed to hold a hearing on the motion to withdraw, we must vacate the trial court’s order and remand this case.

The record shows that on January 21, 1998, Banhi entered a negotiated plea of guilty to first degree forgery (Count 1) and giving a false name to a police officer (Count 4). In return for his guilty pleas, the State dismissed two other charges against him: first degree forgery (Count 2) and second degree forgery (Count 3). The trial court accepted the State’s recommended sentence of five years probation on Count 1 and twelve months probation on Count 4, running concurrent to the sentence on Count 1. Banhi was represented by counsel during the guilty plea hearing.

Nine days after entering his guilty pleas, Banhi filed, pro se, a motion asking the trial court to “vacate and set aside the plea agreement.” He also asked for a “rehearing” on Counts 1 and 4. After almost three years passed with no ruling from the trial court on his motion, Banhi filed a “Reminder for Motion” asking the court to rule on the motion and reminded the court that his motion raised, among other issues, ineffectiveness of counsel and the voluntariness of his plea. Two days later, the trial court issued a one-line order denying appellant’s “motions” without holding a hearing. The record is also devoid of any evidence that the trial court advised appellant of his right to legal representation during the plea withdrawal proceedings. See Fortson v. State, 272 Ga. 457 (532 SE2d 102) (2000).

Appellant filed a timely notice of appeal from the trial court’s order denying his motion to withdraw. On appeal, a ruling on a motion to withdraw a guilty plea will not be disturbed absent manifest abuse of the trial court’s discretion. Thornton v. State, 180 Ga. App. 274, 275 (349 SE2d 23) (1986). Because the trial court ruled on the motion to withdraw without holding a hearing, “we are unable to make a determination as to whether the trial court properly exercised its discretion or abused the same.” Weathers v. State, 149 Ga. App. 617, 619 (255 SE2d 90) (1979), overruled on other grounds, State v. Germany, 245 Ga. 326 (265 SE2d 13) (1980). As a result, we must remand this case to the trial court to hold the necessary hearing and exercise its discretion based upon the evidence produced during the hearing. Weathers, supra. This holding renders appellant’s remaining enumerations of error moot.

Decided October 17, 2001

Reconsideration dismissed November 16,2001.

Roger M. Banhi, pro se.

Daniel J. Porter, District Attorney, Dawn H. Taylor, Assistant District Attorney, for appellee.

Judgment vacated and case remanded with direction.

Smith, P. J, and Phipps, J., concur.

       In Isaac v. State, 237 Ga. App. 723, 727-728, n. 3 (516 SE2d 575) (1999), we noted an apparent conflict in our law regarding the right to a hearing on a motion to withdraw a guilty plea, citing Weathers, supra, and Romano v. State, 220 Ga. App. 322 (469 SE2d 726) (1996). A close examination of our opinion in Romano reveals, however, that no such conflict actually exists. In Romano, we made the following statement:
      [Defendant] contends that the [trial] court erred in not holding a hearing on his motion for new trial. A defendant who files a guilty plea cannot move for a new trial since there has been no verdict. Romano’s motion for [a] new trial was inappropriate and the trial court correctly denied it. A motion to withdraw the guilty plea was the appropriate motion to file. A hearing on such a motion is not required.
      (Citations and punctuation omitted.) Id. at 323 (1). Because our opinion in that case addressed a motion for new trial, our statement that a hearing is not required on “such a motion” is nonbinding dicta to the extent it refers to a motion to withdraw a guilty plea instead of a motion for new trial.


author: Blackburn, Chief Judge.

text:
    A01A1483.
    GONZALES v. THE STATE.
    (556 SE2d 183)
   Blackburn, Chief Judge.

Following a jury trial, Harby Gonzales appeals his conviction for possession of more than one ounce of marijuana, contending that the trial court erred by: (1) denying his motion for directed verdict of acquittal and (2) rereading certain portions of the testimony given by one of the investigating officers to the jury after they had begun deliberations. For the reasons set forth below, we affirm.

1. Gonzales contends that the trial court erred by denying his motion for a directed verdict of acquittal at the close of evidence. We disagree.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Gonzales] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the [standard] of Jackson v. Virginia, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that [Gonzales] was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.

Lowery v. State.

Viewing the evidence in this light, the record shows that the Texas Department of Public Safety notified Gwinnett County investigators that it had intercepted two boxes containing marijuana that had been shipped to an address in Norcross, Georgia. A third package had not been intercepted and was still en route to the Norcross address. Gwinnett investigators intercepted this third package, obtained a search warrant for it, and discovered that it contained over 20 pounds of marijuana.

On January 22, 1997, a controlled delivery of the package was then made to the home of Carlos Rodriguez. After being arrested, Rodriguez explained that he had been receiving packages for Yolanda Karina and Rodolfo Posadas in return for compensation. Rodriguez then phoned Posadas to let him know that the package had arrived. Later, Gonzales and Diego Mejia drove to Rodriguez’s home to pick up the package for Posadas. Gonzales drove his sister’s car, and Mejia was his passenger. At Rodriguez’s home, both Gonzales and Mejia entered the premises, Mejia paid Rodriguez $300 for accepting the package, and Mejia carried the package out to Gonzales’ car. At that time, Gonzales opened the trunk of the car to allow Mejia to put the package there.

Shortly thereafter, Gonzales was stopped for a traffic offense, and he was cited for driving with a suspended license. His car was then searched, and the package was retrieved from the trunk. Gonzales does not challenge the legality of the stop or the ensuing search. After being arrested, Gonzales admitted that, although he did not know the exact contents of the package, he deduced that it contained some type of illegal contraband.

This evidence was sufficient to support the verdict. The jury was authorized to infer from the facts before it that Gonzales knew that he was transporting a box full of contraband. And Gonzales’ arguments regarding constructive possession do not alter this outcome. “[Gonzales’] presence, companionship and conduct before and after the discovery of the marijuana in the trunk of the car showed more than his mere presence at the scene of the crime and authorized the trier of fact to find beyond a reasonable doubt that he had at least constructive possession of the marijuana.” Smith v. State. Based on Gonzales’ own admission, the jury was authorized to find that he was knowingly involved in a scheme to transport illegal drugs for sale and distribution.

2. Gonzales contends that the trial court erred by rereading certain inculpatory portions of the testimony of one of the investigating officers to the jury after deliberations had begun. Again, we disagree.

The record shows that, after deliberations had begun, the jury conveyed a written request to the trial court in which it asked that portions of the testimony of two investigators be repeated. Specifically, the jury asked to hear: (1) testimony from Officer Perez that, at the time of the traffic stop, Gonzales told him that he did not know what was in the package discovered in his car and (2) testimony from Officer Prieto that Gonzales told him that, to the contrary, he had a “pretty good idea that [the contents of the package in the trunk of his car were] illegal.” At trial Gonzales argued that rereading the inculpatory testimony of Officer Prieto, without also reading his cross-examination, placed undue emphasis on it, thereby prejudicing the jury.

In cases such as this, where questions are propounded after deliberations have begun, “the jury should be permitted to limit what they rehear to what they desire to rehear, absent special circumstances which might work an injustice. ... No special circumstances appear here requiring the cross examination to be [repeated].” Byrd v. State.

To the contrary, prior to rereading testimony, the court admonished the jury not to emphasize it any more than the testimony previously heard at trial, reminding them not to forget any evidence produced during cross-examination. In addition, the trial court made it clear to the jury that, if they wished, they could rehear other parts of the testimony, including cross-examination. Furthermore, the trial court repeated both the inculpatory testimony of Officer Prieto and the exculpatory testimony of Officer Perez. We find no error in this circumstance.

On appeal Gonzales complains for the first time that, in repeating this testimony, the trial court made improper remarks in its effort to pinpoint the material the jury wished to hear again. As no objection regarding these remarks was made below, and the trial court was not asked to rule thereon, there is nothing for this court to review. Also, by his failure to object at trial, Gonzales waived his right to argue this contention on appeal. Gann v. State.

Decided November 2, 2001

Reconsideration denied November 16,2001.

Timothy T. Herring, for appellant.

Daniel J. Porter, District Attorney, Jeanette J. Fitzpatrick, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Lowery v. State, 242 Ga. App. 375-376 (530 SE2d 22) (2000).

        Gann v. State, 245 Ga. App. 448, 449 (2) (538 SE2d 97) (2000).

        Smith v. State, 184 Ga. App. 304, 306 (2) (361 SE2d 215) (1987).

        Byrd v. State, 237 Ga. 781, 783 (1) (229 SE2d 631) (1976).


text:
    A01A1492.
    WORTHY v. THE BEAUTIFUL RESTAURANT, INC. et al.
    (556 SE2d 185)
   Blackburn, Chief Judge.

In this action involving the alleged sale of unwholesome food, Mignon Worthy, in her capacity as the natural guardian of her son, Ricco Worthy, appeals the trial court’s grant of summary judgment to The Beautifiil Restaurant, Inc. and certain managers and employees of the Restaurant. Worthy contends that questions of fact remain whether the Restaurant served spoiled scrambled eggs to her which, in turn, caused complications during her pregnancy with Ricco. For the reasons set forth below, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.

Viewing the evidence in this light, the record shows that, at approximately 1:00 a.m. on February 26, 1986, Mignon, who was approximately six months pregnant at the time, entered the Restaurant and ordered a buffet breakfast. Mignon chose scrambled eggs and served herself from a steam tray located on the buffet. As she ate the eggs, Mignon noticed nothing unusual about their taste or flavor. Later that morning, Mignon began experiencing abdominal pain, vomiting, arid diarrhea. Because of her illness, Mignon went to a local hospital, and she was diagnosed as suffering from gastroenteritis. After receiving an anti-diarrheal agent, Mignon’s symptoms subsided.

Mignon did not visit a physician again until March 5, 1986. At that time, she was diagnosed with a severe case of trichomoniasis, a sexually transmitted disease, and a possible urinary tract infection. On the following day, Mignon was admitted to Crawford Long Hospital, where it was discovered that her fetal membranes had ruptured prematurely. Then, on March 12,1986, Ricco was delivered by Caesarian section. Ricco was bom with several defects including cerebral palsy, seizures, and brain damage.

Eleven years later, on December 1, 1997, Mignon filed suit against the Restaurant and its employees, contending that: (1) the scrambled eggs she ate at the Restaurant were contaminated with staph aureus bacteria and its toxins; (2) the Restaurant negligently prepared and provided her with the eggs; (3) she contracted food poisoning from eating the eggs; (4) toxins from the bacteria caused her fetal membranes to rupture; and (5) Ricco’s birth defects resulted from the premature rupture and the concomitant delivery.

In support of her complaint, Mignon filed the affidavits of three experts. The first, Dr. Michael Thompson, opined unequivocally that there was no other possible diagnosis for Mignon’s gastroenteritis than food poisoning by staph aureus bacteria. Thompson, in turn, surmised that, due to Mignon’s eating pattern on the day she became ill, the scrambled eggs she ate at the Restaurant must have been the source of the toxins. The second expert, Dr. Michael Cardwell, testified that, based on Mignon’s history, the only reasonable cause for the rupture of her fetal membranes was an infection with staph aureus bacteria. Finally, the third expert, Dr. Joseph Phillips, testified that, assuming the eggs eaten by Mignon were contaminated with staph aureus bacteria, Ricco’s birth defects were proximately caused by his mother’s ingestion of the eggs.

To counter Mignon’s argument, the Restaurant provided affidavits from its own experts, who testified that, for the production of enough staph aureus toxins to make Mignon sick, the eggs which she ate would have had to be left sitting out at room temperature for at least eight to ten hours. Jenna Mumford, an administrator for the Restaurant, further testified that, in 1986, the Restaurant did not begin to serve eggs until 11:00 p.m., and, as such, the eggs which Mignon ate at 1:00 a.m. could not have been left out for more than two hours.

On April 27, 2000, the Restaurant filed a second motion for summary judgment, contending that Mignon failed to shoulder her burden of proof. The trial court agreed, finding: (1) Mignon failed to rebut the Restaurant’s direct evidence that the eggs she consumed had not been left out long enough for staph aureus toxins to develop, and (2) even if Mignon had raised a jury issue regarding causation, it was not foreseeable that staph aureus toxins would develop in the scrambled eggs. Mignon now appeals these findings.

1. Mignon contends that the trial court erred in granting summary judgment to the Restaurant based on its finding that she failed to rebut the Restaurant’s direct evidence that the eggs which she consumed could not have been left out long enough for staph aureus toxins to develop. We agree.

In general,

[i]llness alone cannot establish proximate cause; a mere showing that a person became sick subsequent to eating food is insufficient. In the absence of direct evidence of the unwholesomeness or adulteration of the food, recovery could be supported by circumstantial evidence if every other reasonable hypothesis as to the cause of the plaintiff’s illness could be excluded.

Mann v. D. L. Lee & Sons, Inc.

On summary judgment, we are required to view the evidence and all reasonable conclusions and inferences from it in the light most favorable to the nonmovant. In this case, Dr. Thompson testified without equivocation both that poisoning from staph aureus bacteria must have been the cause of Mignon’s illness and that the eggs she ate at the Restaurant must have been the source of that poisoning based on the timing and etiology of her symptoms. From this opinion, one can reasonably conclude that the eggs served by the Restaurant were contaminated with staph aureus toxins, and, as such, one may also reasonably infer that the eggs must have been improperly handled. And, in the face of this evidence, the testimony of the Restaurant’s manager that the eggs were not left out long enough to develop staph aureus toxins merely creates a question of fact which a jury must resolve.

Decided November 2, 2001

Reconsideration denied November 16, 2001

James A. Goldstein, for appellant.

Contrary to the Restaurant’s arguments, Stevenson v. Winn-Dixie Atlanta does not change this result. In Winn-Dixie, unlike the present case, the plaintiff’s expert admitted that things other than the ice cream which plaintiff ingested could have caused the plaintiff’s illness. Accordingly, we found that summary judgment for the ice cream manufacturer was appropriate in that case because the “[p]laintiff’s evidence is circumstantial, and she has not excluded every other reasonable hypothesis as to cause save unfitness of the ice cream for human consumption.” Id. at 574 (1). Here, although it may strain credulity, Mignon’s experts point to staph aureus as the only reasonable cause of her illness and the eggs served by the Restaurant as the only reasonable source. A jury must decide what weight to give this expert testimony, for this Court cannot.

2. Mignon contends that the trial court erred in granting summary judgment to the Restaurant based on its alternative finding that the injuries received by her and Ricco were not foreseeable. Again, we agree.

As a general matter, the law of negligence protects innocent parties to whom a duty is owed from foreseeable harm, and “[floresight requires the ability to anticipate a risk of harm from the [allegedly negligent] conduct.” Amos v. City of Butler. “It is sufficient if, in ordinary prudence, [the Restaurant] might have foreseen that some injury would result from [its] act . . . , and that consequences of a generally injurious nature might result.” (Punctuation omitted.) Bailey v. Jim’s Minit Market.

Although the Restaurant argues that it could not have specifically foreseen the rupture of Mignon’s fetal membranes, nonetheless, in ordinary prudence, the Restaurant might have foreseen that serving improperly handled food to Mignon could make her ill and that generally injurious consequences might ensue. Bailey, supra. Accordingly, the trial court erred by granting summary judgment to the Restaurant on the issue of foreseeability.

Judgment reversed.

Pope, P. J., and Mikell, J., concur.

Alston & Bird, Douglas G. Scribner, Gerald L. Mize, Jr., Paul J. Kaplan, for appellees.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       On the day in question, Worthy testified that the last food she had ingested prior to the scrambled eggs was consumed at 2:30 p.m. at the latest on the prior day. Other members of Worthy’s family ate the same food and did not become ill.

         Mann v. D. L. Lee & Sons, Inc., 245 Ga. App. 224-225 (537 SE2d 683) (2000).

        Stevenson v. Winn-Dixie Atlanta, 211 Ga. App. 572 (440 SE2d 465) (1993).

        Amos v. City of Butler, 242 Ga. App. 505, 506 (1) (529 SE2d 420) (2000).

        Bailey v. Jim’s Minit Market, 242 Ga. App. 518, 520 (529 SE2d 436) (2000).


author: Ellington, Judge.

text:
    A01A1665.
    MURPH v. MAYNARD FIXTURECRAFT, INC. et al.
    (555 SE2d 845)
   Ellington, Judge.

Following the grant of his application for discretionary appeal, Michael Murph appeals the order dismissing his claim for workers’ compensation against two potential statutory employers. See OCGA § 5-6-35 (a) (1). For the reasons which follow, we affirm the judgment as to MAPCO Petroleum, Inc. and reverse the judgment as to Maynard Fixturecraft, Inc.

The following facts were not disputed: on February 10, 1998, while installing refrigeration equipment at a construction site, Murph fell off a ladder and was seriously injured. The construction project was a new “MAPCO Express Travel Center” in Cordele, Georgia. MAPCO, a Delaware corporation, hired Murphy & Sons, Inc. as the general contractor. MAPCO planned to include an ice cream store franchise in its travel center. The construction agreement between MAPCO and Murphy & Sons excluded any refrigeration work, so MAPCO hired a third company, Maynard, to furnish and install the refrigeration equipment needed for the project. Maynard, a Tennessee corporation with no employees in Georgia, hired a sole proprietor, Carlton Huff d/b/a Huff Refrigeration, to install the refrigeration equipment. When he was injured, Murph was working on the site as a salaried employee of Huff Refrigeration.

Murph named MAPCO, Murphy & Sons, Maynard, and Huff Refrigeration as employers in his notice of claim to the Board, and each moved to dismiss. After a hearing, an administrative law judge dismissed Murph’s claim for workers’ compensation benefits against MAPCO, Murphy & Sons, and Maynard. The appellate division of the State Board of Workers’ Compensation and the superior court affirmed the ALJ’s decision. In this appeal, Murph contests only the dismissal of MAPCO and Maynard.

In reviewing a workers’ compensation award, both this court and the superior court must construe the evidence in the light most favorable to the party prevailing before the appellate division. It is axiomatic that the findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding and that neither the superior court nor this court has any authority to substitute itself as a factfinding body in lieu of the Board. Logan v. St. Joseph Hosp., 227 Ga. App. 853, 859 (3) (490 SE2d 483) (1997).

1. Murph contends the ALJ erred in dismissing MAPCO in that MAPCO was his “statutory employer” within the meaning of OCGA § 34-9-8 (a), citing Holton v. Ga. Power Co., 228 Ga. App. 135 (491 SE2d 207) (1997). As we noted in Holton, an owner who is in possession or control of the premises is generally not a statutory employer under the Workers’ Compensation Act. 228 Ga. App. at 136. But an owner is a statutory employer when the owner acts as a contractor for another, that is, where the owner owes a contractual duty to another to perform certain work and then hires a third entity to perform the work on the premises. Id. (power plant majority owner was repairman’s statutory employer where majority owner owed minority owners a contractual duty to operate and maintain the plant and majority owner hired repairman’s direct employer to perform that work).

Murph contends that MAPCO’s franchise agreement with Baskin-Robbins USA Company required MAPCO to install the refrigeration equipment and therefore it acted as Baskin-Robbins’ contractor when it hired Maynard. But there was evidence to support the ALJ’s finding that MAPCO and Baskin-Robbins did not execute the franchise agreement until after Murph was injured. Thus, on the date Murph was injured, no contractual obligations existed between MAPCO and Baskin-Robbins which could support a conclusion that MAPCO was functioning in the dual role of owner and contractor. As the ALJ correctly found, MAPCO, the owner of the premises, could not be considered a contractor as to the particular work in which Murph was engaged and cannot be deemed a statutory employer under OCGA § 34-9-8 (a). Yoho v. Ringier of America, Inc., 263 Ga. 338, 339-341 (434 SE2d 57) (1993) (printing plant owner was not solvent recovery system repairman’s statutory employer where owner did not owe to another any contractual obligation of performance with regard to repair of the system). The ALJ did not err in dismissing MAPCO from Murph’s workers’ compensation claim.

2. The ALJ dismissed Maynard because it did not have three or more employees regularly in service in Georgia and, “[w]hen the statutory employer does not have the requisite number of employees to make it subject to the Georgia Workers’ Compensation Act, the statutory employer cannot be held liable for payment of benefits to the subcontractor’s employee,” citing Bradshaw v. Glass, 252 Ga. 429 (314 SE2d 233) (1984). The ALJ did not address any alternate basis for finding Maynard responsible for benefits. Murph contends that under OCGA § 34-9-124 (b) Maynard was estopped from denying his claim because its agreement with MAPCO required it to provide workers’ compensation coverage and it obtained such coverage. Under OCGA § 34-9-124 (b), if an employer purchases workers’ compensation coverage, the employer and its insurer are estopped from denying coverage for a compensable claim, despite the fact that the employer was not obligated to provide coverage. Lawrence v. Atlanta Door Co., 171 Ga. App. 741, 743 (1) (320 SE2d 627) (1984); Ga. Cas. &c. Co. v. Brawley, 135 Ga. App. 763, 764 (219 SE2d 176) (1975); Security Ins. Group v. Plank, 133 Ga. App. 815, 816 (1) (212 SE2d 471) (1975).

After examining the contracts between MAPCO and Maynard, we conclude that Maynard is estopped from denying coverage for Murph’s injuries because it voluntarily undertook to ensure that its subcontractors’ employees were covered. MAPCO and Maynard entered into a purchase contract for a particular walk-in cooler/ freezer and a “Master Field Services Contract” for the installation of the refrigeration unit. Maynard, as the contractor, agreed, before commencing any work under the agreement, to acquire certain insurance policies including workers’ compensation coverage and to furnish MAPCO, as owner, certificates of insurance evidencing the existence of the insurance policies. Maynard further agreed to “require all subcontractors to obtain, maintain, and keep in force during the time in which they are engaged in performing Services hereunder the same insurance coverage as required of Contractor, unless Owner agrees in writing to lesser coverage, and upon request furnish Owner acceptable evidence of such insurance.” Thus, under the master field services contract, Maynard had a contractual obligation to ensure that Huff Refrigeration had workers’ compensation coverage. See, e.g., Franks v. Avila, 200 Ga. App. 733 (1) (409 SE2d 564) (1991). Although company president Robert Maynard expected Huff Refrigeration to carry its own workers’ compensation coverage, it is undisputed that Huff Refrigeration had no such policy.

Even if Maynard’s workers’ compensation policy did not provide coverage for Murph, Murph was at least a third-party beneficiary to Maynard’s agreement to require its subcontractors, including Huff Refrigeration, to insure their employees. See OCGA § 9-2-20 (b); Paz v. Marvin M. Black Co., 200 Ga. App. 607, 608 (1) (408 SE2d 807) (1991) (treating worker as a third-party beneficiary of contract between contractor and subcontractor). Maynard’s promise to require its subcontractors to have workers’ compensation insurance was clearly intended for the benefit of the subcontractors’ employees. See Rowe v. Akin & Flanders, Inc., 240 Ga. App. 766, 768 (1) (525 SE2d 123) (1999).

Decided October 26, 2001

Reconsideration denied November 16, 2001

Moskowitz & Carraway, Bruce H. Carraway III, for appellant.

Carlock, Copeland, Semler & Stair, Robert C. Semler, Hatcher, Stubbs, Land, Hollis & Rothschild, Teri Y. Callahan, Saveli & Williams, Lynda S. Williams, for appellees.

By failing to require Huff Refrigeration to “obtain, maintain, and keep in force” such a policy while engaging in work at MAPCO’s travel facility, Maynard became liable for providing such coverage, either personally or through its own workers’ compensation insurance policy. See OCGA § 34-9-124 (b). This holding is consistent with the policy of the statutory employer provisions that construction workers be covered by workers’ compensation. See Wright Assoc. v. Rieder, 247 Ga. 496, 499-500 (1) (277 SE2d 41) (1981). The ALJ erred in dismissing Murph’s claim against Maynard. “Where it affirmatively appears that the award is based upon an erroneous legal theory, and that for this reason the board has not considered all of the evidence in the light of correct and applicable legal principles, the case should be remanded to the board for further findings.” (Citations and punctuation omitted.) Williams v. Crompton Highland Mills, 190 Ga. App. 621, 625 (3) (379 SE2d 622) (1989). See OCGA § 34-9-105 (c) (5). We therefore reverse the judgment as to Maynard with direction to remand the case to the State Board of Workers’ Compensation for a decision on the merits. Mickens v. Western Probation Detention Center, 244 Ga. App. 268, 270-271 (2) (534 SE2d 927) (2000).

Judgment affirmed in part and reversed in part and case remanded with direction.

Johnson, P. J., and Ruffin, J., concur.

       MAPCO Petroleum, Inc. is sometimes identified below as Mapco Express, Inc.

       The ALJ earlier dismissed Huff Refrigeration after its unopposed motion showed it was not subject to the Workers’ Compensation Act because it did not have three employees regularly in service in Georgia. See OCGA § 34-9-2 (a).

       OCGA § 34-9-124 (b) provides:
      A policy of insurance issued under this chapter shall always first be construed as an agreement to pay compensation; and an insurer who issues a policy of compensation insurance to an employer not subject to this chapter shall not plead as a defense that the employer is not subject to this chapter. ... In [such] case compensation shall be paid to an injured employee . . . for a compensable accident as if the employer or the employee or both were subject to this chapter, the policy of compensation insurance constituting a definite contract between all parties concerned.


text:
    A01A1694.
    HOWARD v. THE STATE.
    (555 SE2d 884)
   Ellington, Judge.

John Russell Howard pled guilty to homicide by vehicle, OCGA § 40-6-393 (a), and was sentenced to serve 15 years in prison. His guilty plea to additional counts of reckless driving, OCGA § 40-6-390, exceeding allowed width of vehicles and loads, OCGA § 32-6-23, and failure to obtain a permit, OCGA §§ 32-6-20; 32-6-26; 32-6-28, merged into the vehicular homicide count. Following the denial of his motion for new trial, Howard appeals, contending the indictment was fatally defective in failing to charge him with a crime against the laws of Georgia. For the reasons which follow, we affirm.

1. Initially, we address the State’s argument that Howard may not raise his challenge to the indictment in this direct appeal but may raise it only in a separate habeas corpus proceeding. Ordinarily, “[a] motion for new trial is not the proper method to attack the sufficiency of an indictment and does not provide a basis for this Court to review the indictment.” McKay v. State, 234 Ga. App. 556, 559 (2) (507 SE2d 484) (1998). See also Ahreu v. State, 206 Ga. App. 361, 363 (2) (425 SE2d 331) (1992). Rather,

[w]hen an indictment is absolutely void in that it fails to charge the accused with any act made a crime by the law and, upon the trial, no demurrer to the indictment is interposed and the accused is convicted under the indictment and judgment is entered on the verdict, the accused’s proper remedy is a motion in arrest of judgment or habeas corpus.

(Punctuation omitted.) McKay, 234 Ga. App. at 559 (2). We are mindful, however, that a defense to an indictment on the basis that it charges no crime may he raised at any time and is not waived by a plea of guilty. Smith v. Hardrick, 266 Ga. 54, 56 (3) (464 SE2d 198) (1995); Moore v. State, 246 Ga. App. 163, 165 (3) (539 SE2d 851) (2000); Belvin v. State, 221 Ga. App. 114, 115 (470 SE2d 497) (1996). Furthermore, “there is no magic in mere nomenclature, and pleadings are construed to serve the best interests of the pleader, and are judged by function rather than name.” (Citation and punctuation omitted.) Jordan v. State, 247 Ga. App. 551, 552 (1) (544 SE2d 731) (2001) . While his pleading was identified as a motion for new trial, we conclude that Howard’s argument was in substance a motion in arrest of judgment which presented to the trial court for decision his argument that the indictment failed to charge him with a crime. Cf. Moore, 246 Ga. App. at 165 (3). Accordingly, we will consider Howard’s appeal on the merits.

2. Howard contends Count 2 of the indictment failed to charge him with felony vehicular homicide in that it failed to charge the underlying offense, reckless driving, because it did not allege that he drove in “reckless disregard for the safety of persons or property.” Count 2 alleged as follows:

John Russell Howard did . . . unlawfully without malice aforethought, cause the death of [the victim], a human being, through a violation of OCGA § 40-6-390, Reckless Driving, in that [he] did operate a vehicle with a width greater than allowed by OCGA [§] 32-6-23, and did violate Department of Transportation Rules, Chapter 672-2, regarding required escorts, time of travel, route of travel, required visibility and travel over bridges less than 28 feet in width, contrary to the laws of this state.

As Howard correctly argues, an indictment for reckless driving under OCGA § 40-6-390 (a) which “fails to include the crucial language that [the defendant] drove with reckless disregard for the safety of persons or property” is “substantively defective.” (Emphasis in original.) Ross v. State, 235 Ga. App. 7, 8-9 (508 SE2d 424) (1998). Without that crucial language, the defendant could admit all the allegations of the indictment and “still be innocent of reckless driving because there would be no admission that he recklessly disregarded the safety of persons or property.” Id.

But Count 2 of the indictment charged Howard not with reckless driving but with vehicular homicide, with reckless driving as the predicate or underlying violation. Ordinarily, “[a]negations set forth in one count of an indictment cannot be imputed to a separate count, absent specific reference to the allegation sought to be imputed.” (Footnote omitted.) Smith v. Hardrick, 266 Ga. at 56 (3). An indictment may be valid as to an offense requiring proof of an underlying or predicate offense, however, even if the count as to the compound offense omits an essential element of the predicate offense — as long as the indictment charges the predicate offense completely in a separate count or where the defendant is put on notice of the predicate offense by the facts alleged in the indictment to show how the compound offense was committed. Dunn v. State, 263 Ga. 343, 344 (2) (434 SE2d 60) (1993) (felony murder and aggravated assault). See also Chapman v. State, 266 Ga. 356, 358 (3) (467 SE2d 497) (1996) (felony murder and misuse of firearm while hunting).

Because the count of the indictment charging Howard with reckless driving included the “crucial language” that he drove with “reckless disregard for the safety of persons and property,” Count 2, charging him with vehicular homicide based on that predicate act, contained the elements of the' offense and apprised him of the charges he must be prepared to answer at trial. Cf. Ross, 235 Ga. App. at 8-9. Accordingly, Count 2 was legally sufficient, and the trial court correctly denied Howard’s motion in arrest of judgment. Campbell v. State, 223 Ga. App. 484, 486 (3) (477 SE2d 905) (1996).

Decided November 1, 2001

Reconsideration denied November 16, 2001

Ray C. Smith, for appellant.

R. Joseph Martin III, District Attorney, Michael T. Muldrew, Assistant District Attorney, for appellee.

3. Howard further contends Counts 4, 5, and 6 of the indictment failed to charge him with a crime. Because the trial court merged the driving violations into the vehicular homicide count for sentencing, Howard’s convictions of reckless driving, exceeding allowed width of vehicles and loads, and failure to obtain a permit stand vacated by operation of law, and Howard’s contentions as to those convictions are moot. Wilkins v. State, 246 Ga. App. 667, 670 (6) (541 SE2d 458) (2000); Miller v. State, 223 Ga. App. 453, 454 (2) (477 SE2d 878) (1996).

Judgment affirmed.

Johnson, P. J, and Ruffin, J., concur.


author: Eldridge, Judge.

text:
    A02A0037.
    SUPERIOR BANK, FSB et al. v. HUMAN SERVICES EMPLOYEES CREDIT UNION.
    (556 SE2d 155)
   Eldridge, Judge.

A used car dealer, Car Consultants Finance, Inc. d/b/a R & V Auto Sales, sold the 1994 Infiniti Q45 to Ronald and Veronica D. Wilborn for their personal use. On July 15, 1998, the Wilboms, individually, entered into an Open-End Credit Plan Security Agreement to purchase the 1994 Infiniti, vehicle identification number JNKG01D7RM258118, with Human Services Employees Credit Union. On August 11, 1998, the Credit Union perfected its security interest with the Georgia Department of Motor Vehicles.

On December 22, 1998, the Wilboms, who owned Car Consultants, had the used car dealer sell to Marilyn Billingsley by a retail automobile sales contract the car. Superior Bank, FSB financed Billingsley’s purchase of this car and attempted to perfect its security interest in the car. Car Consultants did not pay off the car lien to the Credit Union or deliver the title so that its prior security interest was unknown to Billingsley and Superior Bank.

On November 17, 1999, after the prior security interest was discovered, Billingsley and Superior Bank sued the Credit Union, the Wilborns, and Car Consultants to quiet title to the car and to determine that Superior Bank had the first lien. The Credit Union answered and counterclaimed to either regain possession or for conversion of the car. The Wilborns filed a plea of stay in bankruptcy, which was granted, and they were voluntarily dismissed from the suit. On October 20, 2000, the Credit Union moved for summary judgment. On May 23, 2001, the trial court granted summary judgment to the Credit Union and gave it possession of the car. We affirm, because the Credit Union did not know that the Wilborns had transferred the car to their dealership, Car Consultants, and had not consented to the sale by Car Consultants in the ordinary course of business as dealers; the Wilborns defaulted on repayment of the purchase financing to the Credit Union, and no one else has repaid such debt, giving the Credit Union the right of possession to the car. See OCGA § 11-2-403 (2).

1. The plaintiffs contend that the trial court erred in not finding that Billingsley was a buyer in the ordinary course of business — OCGA § 11-1-201 (9). They also contend that the trial court erred in finding that the Wilborns were prohibited from entrusting the car to Car Consultants for sale because of the security contract with the Credit Union. They further assert that the trial court erred in failing to apply OCGA § 11-2-403 to protect Billingsley as the good faith purchaser of entrusted goods in the ordinary course of business from a dealer in such goods. Plaintiffs also contend that the trial court failed to apply OCGA § 11-9-307. All of these issues must be decided together rather than in a piecemeal fashion, because the issues interlock.

The plaintiffs mistakenly rely upon several provisions of the Uniform Commercial Code for results not intended by the Code. First, reliance is placed on OCGA § 11-1-201 (9), definition of buyer in the ordinary course of business, which means a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind. Secondly, they rely upon OCGA § 11-2-403 (2): “[a]ny entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business.” OCGA § 11-2-403 (3) defines entrusting as “including] any delivery and any acquiescence in retention of possession regardless of any condition expressed between the parties to the delivery or acquiescence.” Finally, the plaintiffs rely upon OCGA § 11-9-307 (1), “[a] buyer in ordinary course of business . . . takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence,” and OCGA § 11-9-307 (2), “[i]n the case of consumer goods, a buyer takes free of a security interest even though perfected if he buys without knowledge of the security interest, for value, and for his own personal, family, or household purposes unless prior to the purchase the secured party has filed a financing statement covering such goods.” Despite the plain meaning of these statutes, plaintiffs attempt to cobble together a means to escape a statutorily created perfected security interest that was prior in time to the resale and financing.

The Credit Union possessed a perfected first security interest created by the Wilboms and recorded on the motor vehicle title certificate issued by the State of Georgia to the Wilboms for the car that they initially purchased from Car Consultants. See OCGA §§ 11-9-302 (3) (b); 40-3-50.

The Credit Union did not either own or possess the car, which belonged to the Wilhorns who had both ownership and possession, and it had the right of possession only upon a default of the purchase money security interest by the Wilborns after Car Consultants failed to pay off its security interest upon resale. Therefore, only the Wilboms were the entrusters under the facts and law of this case, because OCGA § 11-2-403 (2) and (3) apply only to the owner of the goods as the entruster. Sunnyland &c. Credit Union v. Fort Wayne Mtg. Co., 182 Ga. App. 5, 6 (354 SE2d 645) (1987) (the first security holder was not the owner and could not be the entruster even if it, upon default, placed the personalty with a dealer for resale; the security interest survived resale); United Carolina Bank v. Sistrunk, 158 Ga. App. 107, 109 (1) (279 SE2d 272) (1981) (secured party is not the entruster, only the owner can be the entruster under this section; therefore, the security interest survived resale). Thus, the Wilboms, as owners, knowingly placed the car for sale with a dealer of such goods, Car Consultants, to sell the car. However, this did not impair the Credit Union’s prior perfected security interest.

Thus, under the facts of this case, the Wilboms, and not the Credit Union, were the “entrusters,” because they held title subject to the Credit Union’s security interest. Therefore, they alone had the right to entrust the car to Car Consultants, a dealer in such goods, to sell only under OCGA § 11-2-403 (2) and (3) “all rights of the entruster,” which was subject to the prior perfected security interest in the Credit Union. Billingsley acquired what title the Wilborns had and ownership in the car; Superior Bank obtained a subordinate second security interest in the car subject to the Credit Union’s perfected pre-existing security interest.

A different interpretation of [OCGA § 11-2-403 (2) and (3)] as to whether an entruster can empower a dealer to transfer rights of the secured creditor in the goods [ ] would contravene [OCGA § 11-9-306 (2),] which provides: “Except where this Article otherwise provides, a security interest continues in collateral notwithstanding sale, exchange, or other disposition thereof unless the disposition was authorized by the secured party and also continues in any identifiable proceeds.” [OCGA § 11-2-403 (2) and (3) are] a precisely limited exception to the common law rule that the seller can convey no greater title than he has himself. The enactment states specifically that what is transferred is “all the rights of the entruster”; it does not give the transfer of “good title and possession,” and it certainly does not give transfer of the rights of secured parties. The statute itself therefore does not, expressly or even impliedly, abrogate the clear intent of [OCGA § 11-9-306 (1)], providing for the continuation of [the Credit Union’s] perfected security interest.

(Citation and punctuation omitted.) Commercial Credit Equip. Corp. v. Bates, 154 Ga. App. 71, 74 (I) (A) (267 SE2d 469) (1980). Where the security interest was properly perfected prior to the sale by the entruster to the good faith purchaser, the prior security interest must prevail in priority to any subsequently created security interest because it survives the subsequent sale. Commercial Credit Equip. Corp. v. Bates, 159 Ga. App. 910, 911 (285 SE2d 560) (1981) (perfected and recorded security gave notice of security interest); First Nat. Bank &c. Co. v. Olivetti Corp. &c., 130 Ga. App. 896, 898-899 (1) (204 SE2d 781) (1974) (prior recorded financing statement gave notice to other creditors of the perfected security interest even if the secured party was the entruster as seller).

Neither can [Billingsley and Superior Bank] prevail against the security interests of [the Credit Union] on the theory that, under [OCGA § 11-9-307 (1)], as “a buyer in the ordinary course of business he takes free of a security interest created by his seller.” The security interest in this case was created not by [Billingsley’s] seller, [Car Consultants], but by [the Wilboms], the original purchaser. [OCGA § 11-9-307 (1)] is intended to protect buyers in the ordinary course from the lien claims of creditors who have financed “floor plan” (inventory) arrangements for the dealer. The guiding principle in UCC § 9-307 (1) is to protect a buyer in the ordinary course of business from a dealer against reservation of title or other hidden interests in goods. We find this intent to be clearly evinced in the statute itself, for a buyer in the ordinary course is protected from “a security interest created by his seller even though the buyer knows of its existence” [OCGA § 11-9-307 (1)]. [Billingsley] does not take free of [the Credit Union’s] security interest in this case; it was not a security interest created by [her] seller, the dealer, and was not of the class of liens from which the Code section intends to protect a buyer in the ordinary course of business.

(Citations and punctuation omitted; emphasis in original.) Commercial Credit Equip. Corp. v. Bates, supra at 74-75 (I) (B).

When, as here, a security interest is noted on the certificate of title for a vehicle, the certificate of title is deemed to provide constructive notice to future creditors of the owner, including mechanics, that the vehicle is encumbered by a security interest. . . . Therefore, [a subsequent purchaser or creditor] is deemed to have constructive knowledge of [the prior perfected] security interest and pursuant to OCGA § 40-3-54, [the Credit Union’s] security interest takes priority over the [subsequent security interest].

(Citations omitted.) Washington State Employees Credit Union v. Robinson, 206 Ga. App. 782, 784 (3) (427 SE2d 15) (1992).

2. Plaintiffs contend that the trial court erred in not considering OCGA § 11-2-401 (2), which provides that, unless otherwise agreed, title passes at the time and place at which the seller completes his performance with reference to physical delivery of the goods.

OCGA § 11-2-401 (1) provides in part that

[t] itle to goods cannot pass under a contract for sale prior to their identification to the contract. . . . Any retention or reservation by the seller of the title (property) in goods . . . delivered to the buyer is limited in effect to a reservation of a security interest. Subject to these provisions and to the provisions of the article on secured transactions (Article 9 of this title), title to goods passes from the seller to the buyer in any manner and on any conditions explicitly agreed on by the parties.

Subsection (2) reads: “[u]nless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place.” There is no question that title subject to the perfected security interest passed to Billingsley from the Wilborns as entrusters to Car Consultants under the facts of this case. See Right Touch of Class v. Superior Bank, 244 Ga. App. 473, 474 (1) (536 SE2d 181) (2000) (the secured party with the perfected security interest was the seller to another dealer and retained the title until the subsequent sale and financing paid off the original sales lien). Under the holding of Division 1 and the authorities cited therein, the title which Billingsley obtained was subject to the prior perfected security interest of the Credit Union.

Decided October 24, 2001

Reconsideration denied November 16,2001

Bridgers, String fellow, Bland & Peters, Henry R. String fellow, for appellants.

Macey, Wilensky, Cohen, Wittner & Kessler, Michael C. Kaplan, for appellee.

3. The remaining enumerations of error were answered and are controlled by Division 1.

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.