author: Beasley, Judge.

text:
    74925.
    NAPIER v. THE STATE.
    (362 SE2d 501)
   Beasley, Judge.

Defendant appeals his conviction by a jury of driving under the influence of alcohol (OCGA § 40-6-391 (a) (1)), driving too fast for conditions (OCGA §§ 40-6-180 and 40-6-181), driving after being declared an habitual violator (OCGA § 40-5-58), operating a motor vehicle without effective insurance (OCGA § 33-34-12), and theft by taking of an automobile (OCGA § 16-8-2).

The evidence, viewed in the light most favorable to the verdict, shows that on the evening of September 29, 1986, defendant’s 1973 Nova broke down and he called a friend who picked up Gentry and went to defendant’s aid. After some repair, the car still did not run properly and was left by the road. Defendant and Gentry were last seen leaving in Gentry’s truck around 10:00 or 11:00 p.m. Defendant had been drinking heavily. Late that evening, a 1976 Nova was stolen from a motel parking lot. The next day, Gentry’s truck was found in the parking lot.

At approximately 4:00 a.m. on the 30th, a citizen called in a report of a wreck. Upon arriving, the officer found the 1976 Nova wrecked, having apparently missed a curve, left the road at a high rate of speed, hit an embankment, and slid or been backed off the embankment. Defendant was outside the car on the passenger’s side, attempting to wake up the unconscious Gentry who was slumped in the passenger’s seat.

The officer noted the smell of alcohol. Defendant was unable to tell the officer who was driving the car or who the owner was, and said that he did not know who Gentry was. Defendant had a considerable amount of blood on his face. The driver’s side door panel, seat and the steering wheel had blood on them. Although Gentry was seriously injured, most of his injuries were internal and the officer did not notice blood on him. After the defendant and Gentry were taken to the hospital and the car was towed away, the officer noted ruts under the rear wheels which indicated to him that someone had attempted to move the car after the accident. Gentry remained in a coma through the time of the trial four months later. A blood alcohol test taken of defendant registered .22.

1. Defendant filed a motion to suppress the results of the blood alcohol test. The written motion contained numerous grounds, but the only one argued at the hearing and here in defendant’s first enumeration is that the officer lacked probable cause to take the sample, in that he had no reason to believe defendant was driving the car. Defendant relied on both the federal and state constitutions: U. S. Const. Amend. 4; OCGA Art. I, Sec. I, Par. XIII. The standard for determining probable cause under both is the same. State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984); Durden v. State, 250 Ga. 325 (297 SE2d 237) (1982); Wells v. State, 180 Ga. App. 133, 135 (special concurrence) (348 SE2d 681) (1986).

Of course, if the officer had probable cause to believe defendant was driving the car and therefore to arrest defendant for DUI, then the implied consent provision, OCGA § 40-5-55, obviates any further need for consideration of probable cause with regard to taking the sample.

“A ‘warrantless arrest’ is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed ... an offense. [Cits.]” Callaway v. State, 257 Ga. 12, 13 (2) (354 SE2d 118) (1987); see Harley v. State, 183 Ga. App. 253, 254 (358 SE2d 653) (1987). Here, the officer stated that he determined the need for the blood alcohol test before the two men were removed from the scene by ambulance, making this the operative point of inquiry.

While defendant focuses on the fact that no one actually saw him behind the wheel driving the automobile, that is not necessary to sustain a conviction of DUI, much less for determining probable cause. Griffis v. State, 163 Ga. App. 491, 492 (2) (295 SE2d 197) (1982); Lawrence v. State, 157 Ga. App. 264 (1) (277 SE2d 60) (1981); see Howell v. State, 179 Ga. App. 632 (347 SE2d 358) (1986). The blood located in the car on the driver’s side and the fact that defendant had copious bleeding while Gentry did not, and the other pre-arrest circumstances described above as observed by the officer, constituted probable cause for his belief that defendant had been the driver. The trial court’s denial of the motion to suppress was not error.

2. In his fifth and seventh enumerations, defendant argues that the court erred in not directing a verdict as to the DUI count and driving too fast for conditions, on the grounds that there was no proof he was driving the car and that the evidence was contrary to the weight of the evidence. No motion for directed verdict was made as to the DUI count below and there is therefore nothing in this regard for us to review. Alexander v. State, 180 Ga. App. 640, 641 (1) (350 SE2d 284) (1986). The evidence of these two offenses was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Griffis v. State, supra; Lawrence v. State, supra.

3. The third enumeration claims error in the court’s allowance of expert testimony by the doctor who treated Gentry. Defendant stipulated that the doctor was qualified as an expert witness “insofar as his ability to practice medicine and his medical knowledge.” The enumeration of error states that the “court erred in allowing the testimony of [the doctor] as an expert in giving his opinion as to what caused the injuries sustained by . . . Gentry.”

The objection stated at trial to the doctor’s testimony, however, was that the “. . . State has failed to lay any type of foundation to show this witness’ qualifications to make any type of opinion as to what caused the damages on the inside of that car.” In response to that objection, the state indicated that the opinion sought was not as to what caused the car damage, but as to whether there was a correlation between the damage in the car and the injuries suffered by Gentry. There was no further objection made by defendant to the doctor’s testimony. The doctor then stated his opinion that the massive head injury suffered by Gentry was caused by his head striking something. The pictures taken of the car revealed that the passenger’s side of the windshield was shattered.

“It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal. [Cits.]” Brantley v. State, 177 Ga. App. 13, 14 (1) (338 SE2d 694) (1985); Alexander v. State, 180 Ga. App. 640, 641, supra.

4. In his second enumeration, defendant contends it was error for the trial court to deny his motion for directed verdict on the theft by taking count. As recited above, defendant was last seen at about 11:00 p.m. the evening of the 29th with Gentry in Gentry’s car. The Nova was stolen from a motel parking lot late on the evening of the 29th or early in the morning of the 30th. Gentry’s car was found in the motel parking lot the next day. At 4:00 a.m. on the 30th, the wreck call came in and defendant was found with the car and Gentry. At that time defendant told the officer he had been hitchhiking on Highway 21, and had been picked up by Gentry, whom he claimed not to know. There is no Highway 21 in the vicinity of the wreck. The blood in the car and defendant’s bleeding permitted the inference that at the time of the wreck, he was driving.

A directed verdict of acquittal is authorized only when there is no evidence to support a verdict to the contrary. OCGA § 17-9-1; Bradley v. State, 180 Ga. App. 386, 387 (1) (349 SE2d 263) (1986). Here, the recent possession of the stolen car, even if joint and based on circumstantial evidence, was sufficient to justify the court’s denial of the motion for directed verdict. Byrd v. Hopper, 234 Ga. 248, 250 (215 SE2d 251) (1975); Lane v. State, 177 Ga. App. 553, 554 (1) (340 SE2d 228) (1986); Castillo v. State, 166 Ga. App. 817, 819 (1) (305 SE2d 629) (1983); Callahan v. State, 148 Ga. App. 555, 556 (4) (251 SE2d 790) (1978); see Butler v. State, 172 Ga. App. 405, 407 (3), 408 (5) (323 SE2d 628) (1984). Assuming that Gentry, rather than Napier, drove the car away at the time of the taking, the evidence is sufficient to sustain his conviction as a party to the crime. OCGA § 16-2-20.

5. In his fourth enumeration, defendant complains of the court’s failure to give his request to charge dealing with mere presence at the scene of a crime as being insufficient for conviction. Without considering whether defendant adequately objected to the charge when asked by the court if there were objections after the charge was given, see Allen v. State, 177 Ga. App. 600, 603 (340 SE2d 246) (1986), the court gave a charge on mere presence that was nearly identical to that requested by defendant, was taken verbatim from the Suggested Pattern Jury Instructions, Vol. 2, p. 23, and was legally sufficient. Thus there was no error in this regard. Daniels v. State, 183 Ga. App. 222, 223 (2) (358 SE2d 637) (1987).

6. In the sixth enumeration, defendant contends that the evidence was insufficient to convict of the offense of operating a vehicle without effective insurance, in violation of OCGA § 33-34-12, Count 4 of the indictment. This section was revamped in 1987, and former OCGA § 33-34-12 (a) now appears as OCGA § 33-34-12 (b). The indictment charged that defendant “did knowingly operate a motor vehicle without effective insurance thereon. . . .”

The sole proof with regard to this charge is the following exchange between the prosecutor and arresting officer: “Q. What charges did you place? A. I charged him with no proof of insurance . . . Q. Was he able to show you insurance? A. No sir.”

Failure to keep proof of insurance with a vehicle is a different offense from knowingly operating a vehicle without effective insurance thereon, the former, now OCGA § 33-34-12 (a) (1) and previously OCGA § 33-34-10 (f), and the latter now OCGA § 33-34-12 (b). Griffith v. State, 172 Ga. App. 255, 259 (3) (322 SE2d 921) (1984). Thus, there was inadequate proof of the offense charged. Williams v. State, 181 Ga. App. 49, 50 (2) (351 SE2d 207) (1986). Defendant’s conviction of count 4 is reversed.

Decided November 4, 1987.

Charles H. S. Lyons III, for appellant.

Sam B. Sibley, Jr., District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

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


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    74953.
    WALDEN v. PROGRESSIVE CASUALTY INSURANCE COMPANY.
    (362 SE2d 505)
   Benham, Judge.

Appellant, the executrix of her deceased husband’s estate, filed a complaint seeking personal injury protection (PIP) benefits of $45,000, which she alleged were due her late husband’s estate under a policy of insurance issued by appellee Progressive Casualty Insurance Company. Appellant contended that appellee’s application for insurance, filled out by the decedent in August 1981, violated the applicable version of OCGA § 33-34-5 (b) by failing to offer the optional PIP coverages required by law to be offered. The trial court found appellee’s application to be in substantial compliance with the law and granted the insurance company summary judgment on that issue. This appeal followed.

The application form at issue is identical in all pertinent respects with the form discussed in Johnson v. Southeastern &c. Ins. Co., 178 Ga. App. 431 (4) (343 SE2d 709) (1986), rev’d on other grounds, 256 Ga. 713 (352 SE2d 760) (1987). There, the court found the form to be “deficient and not in substantial compliance with the statute” (id.) because the form on its face did not show the prospective insured “the offered coverages and the action needed to accept or reject with such clarity so as not to require speculation as to whether there was a knowing election.” Associated Indem. Corp. v. Sermons, 175 Ga. App. 513, 516 (333 SE2d 902) (1985). While the court was divided on the issue whether timely notice had been given to the motor vehicle insurer of Johnson’s employer, it stood united on all other issues, including the conclusion that Southeastern’s application form was not in substantial compliance with OCGA § 33-34-5 (b), as it existed in 1981. See Johnson, supra, dissent at p. 438. Based upon this court’s opinion in Johnson v. Southeastern &c. Ins. Co., supra, we must reverse the judgment of the trial court granting appellee summary judgment on the ground that its form substantially complied with OCGA § 33-34-5 (b) (1981).

Decided November 4, 1987.

Lester B. Johnson II, for appellant.

J. M. Hudgins IV, for appellee.

Judgment reversed.

Banke, P. J., and Carley, J., concur.


text:
    74961.
    TATUM & ASSOCIATES, INC. v. RAYTHEON COMPANY.
    (362 SE2d 506)
   Benham, Judge.

Appellant brought suit against appellee to recover a commission alleged to be due because appellee hired a person referred to it by appellant, an employment placement agency. The jury returned a verdict awarding appellant the amount of its claim, prejudgment interest, and expenses of litigation. The trial court granted appellee’s motion for judgment notwithstanding the verdict with regard to the award for expenses of litigation. This appeal is from the grant of that motion and from the trial court’s determination that prejudgment interest would be calculated at the rate of 7 percent per annum.

1. Appellant’s claim for expenses of litigation was based on an assertion that appellee acted in bad faith, was stubbornly litigious, and caused appellant unnecessary trouble and expense in collecting the debt involved. In granting appellee’s motion for j.n.o.v., the trial court held merely that the original judgment was erroneous. In appellee’s motion, it asserted that no expenses of litigation were recoverable because there was no evidence to support a finding that it had acted in bad faith, and because there was a bona fide dispute concerning the validity of appellant’s claim. We agree that the evidence does not authorize a finding of any bad faith other than the failure to pay a just debt, and that expenses of litigation would not be recoverable on that ground. Associated Software Consultants v. Wysocki, 177 Ga. App. 135 (1) (338 SE2d 679) (1985). And we agree that the key to the issue of stubborn litigiousness or unnecessary trouble and expense is the existence of a bona fide controversy. Id. However, the evidence in the present case does not demand a finding that there was a bona fide controversy. If the jury believed appellant’s witnesses and disbelieved appellee’s, it would have been authorized by the evidence to find that appellee was aware from the time of appellant’s demand for payment that appellant was entitled to it, but that appellee nonetheless refused to pay. It appears, therefore, that the question of whether appellant was entitled to expenses of litigation was one for the jury. Id. The trial court’s grant of j.n.o.v. on that issue was error.

Decided November 4, 1987.

Gary W. Forbes, for appellant.

Dan T. Carter, Paul R. Beshears, for appellee.

2. The trial court ruled that appellant was entitled to prejudgment interest at the rate of 7 percent per annum pursuant to OCGA §§ 7-4-2 and 7-4-15. Appellant contended at trial and continues to argue on appeal that the correct rate should have been 1-Vz percent per month pursuant to OCGA § 7-4-16. We agree with appellant.

In its amended complaint, appellant asked for interest at the higher rate. Having done so, it was entitled to that rate. Belvin v. Houston Fertilizer &c. Co., 169 Ga. App. 100 (1) (311 SE2d 526) (1983); Gregory v. Townsend Roofing Co., 163 Ga. App. 836 (2) (296 SE2d 154) (1982). Compare Gold Kist Peanuts v. Alberson, 178 Ga. App. 253 (2) (342 SE2d 694) (1986), where the complaint sought “ ‘interest’ without specifying the rate thereof.”

Judgment reversed.

Banke, P. J., and Carley, J., concur.


author: Pope, Judge.

text:
    74997, 75112.
    TUNISON et al. v. TILLMAN INSURANCE AGENCY; and vice versa.
    (362 SE2d 507)
   Pope, Judge.

James G. Tunison, d/b/a James G. Tunison & Company, was under contract with the United States government to perform certain services at Moody Air Force Base. In order to qualify for the government contract, Tunison obtained a performance bond and other insurance coverage from Tillman Insurance Agency. The government contract was extended for an additional three months from October 1 to December 31, 1983. In turn, Tillman issued a certificate of insurance extending coverage for the additional three-month period and forwarded a copy of the certificate to the contracting government officer. On approximately September 28, just before the renewed insuranee term was to commence, Tillman notified the contracting officer that it wished to withdraw its extension of coverage and the officer consented. Tunison was unable to find replacement coverage and was required to post bond in the form of a letter of credit from a bank. To obtain the letter of credit, Tunison pledged assets to the bank and took out a loan on which he claims he paid approximately $4,000 in interest.

Tillman brought suit on open account against Tunison for premiums in the amount of $12,645 allegedly owed on the policy issued to James G. Tunison & Company. The complaint also alleged premiums in the amount of $3,951 were owed on a policy issued to Penny Pinchers Shoppe, a trade name of Valdosta Discount Merchandise, Inc., of which Tunison is a shareholder.

Tunison brought a counterclaim against Tillman in two counts. Count I of the counterclaim alleged Tillman had overcharged Tunison for premiums on the performance bond in the amount of $19,000, which Tunison sought to recover. Count II alleged that the cancellation of the extended performance bond amounted to tortious interference with contractual rights resulting in damage to Tunison. The cross-appeals of the two parties have been consolidated for consideration by this court.

Case No. 75112

1. Tillman argues the court erred in denying its motion for summary judgment as to the premiums allegedly owed by Tunison on the policy of insurance issued to Penny Pinchers Shoppe. The policy listed the named insured as “Valdosta Discount Merchandise, Inc. d/ b/a Penny Pinchers Shoppe and James G. Tunison, an individual, A.T.I.M.A. [as their interest may appear.]” By its terms, the policy applied to a named individual “only with respect to the conduct of a business of which he is the sole proprietor. . . .” Clearly, the policy covered the business known as the Penny Pinchers Shoppe and not Tunison in his individual capacity.

Tunison testified by affidavit that he did not operate said business as a proprietorship but that it was operated as a trade name of Valdosta Discount Merchandise, Inc., a separate legal entity. Nevertheless, Tillman argues Tunison should be held personally liable for premiums on the policy because he was listed as a payee and accepted payment of certain loss benefits issued under the policy. Where the agency of an individual is known, the question to whom credit is given is a question of fact to be decided by the jury according to the circumstances of the case. OCGA § 10-6-87. Therefore, the fact that Tunison, a shareholder, was listed as a named insured and accepted benefits on behalf of the corporation at best creates an issue of fact as to whether he is personally liable for payment of premiums on the policy on open account. The court did not err in denying summary judgment to Tillman on this issue.

Case No. 74997

2. In Count I of the counterclaim, Tunison claimed he was entitled to damages for excess premiums paid because Tillman failed to obtain coverage for him at the most favorable rate available. The court did not err in granting summary judgment to Tillman on this claim. Tunison freely accepted and purchased insurance at the price charged by Tillman. The court may not rewrite the terms of an arms-length business transaction. The cases cited by Tunison merely address the liability of an insurance agent for negligent or intentional failure to procure coverage for an insured. E.g., Dillard v. Woodall, 167 Ga. App. 158 (3) (306 SE2d 81) (1983). The duty of an insurance agent to procure the represented coverage does not create a duty to obtain coverage at any particular rate. Absent an express promise to do so, an insurance agent, like any other merchant, is under no duty to sell to his customers at the most competitive price.

3. In Count II of the counterclaim Tunison claims Tillman’s cancellation of the performance bond was a violation of Tillman’s duty and obligation to Tunison and constituted a tortious interference with Tunison’s contractual rights. This claim represents an improper attempt to seek damages in tort for an alleged breach of contract. Tunison does not and cannot claim that Tillman’s actions resulted in the breach of Tunison’s contract with the government since both parties continued under that contract as planned. Both the original policy and the declaration of renewal stated that cancellation could be made only after notice to the contracting government agent was given thirty days in advance. The increased cost, if any, of seeking substitute coverage may be recoverable if a breach of contact is proven. However, Tunison may not recover damages in tort for what is essentially an alleged breach of contract. See Hudson v. Venture Indus., 147 Ga. App. 31 (2) (248 SE2d 9) (1978), aff'd 243 Ga. 116 (252 SE2d 606) (1979).

4. The lower court awarded judgment to Tillman on the open account of James G. Tunison & Company with prejudgment interest from the date the action was filed. Tunison argues the award of prejudgment interest was improper because the actual calculation of the amount due was revealed only during discovery and not at the time the complaint was filed. Nevertheless, the precise amount due was set forth in the complaint. “[Ojpen accounts bear interest from their due date, at which time they are considered liquidated demands. [Cits.] ‘Amount claimed is a “liquidated demand” if it is susceptible of being made certain in amount by mathematical calculations from factors which are or ought to be in possession or knowledge of (the) party to be charged.’ Black’s Law Dictionary, (4th ed.) p. 1080.” Intercompany Svcs. Corp. v. Kleeb, 140 Ga. App. 512, 513 (231 SE2d 505) (1976). The fact that the court did not award judgment on the amount allegedly due on a separate policy issued to Penny Pinchers Shoppe did not convert the otherwise liquidated claim on which judgment was awarded to an unliquidated sum. See Davis v. Carpenter, 155 Ga. App. 301 (2) (270 SE2d 810) (1980).

Decided November 4, 1987.

J. Converse Bright, for appellants.

John T. McTier, for appellee.

Judgments affirmed.

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


text:
    75274.
    THAXTON v. THE STATE.
    (362 SE2d 510)
   Pope, Judge.

Norman Ellis Thaxton, Jr. was indicted for murder (OCGA § 16-5-1) and hindering apprehension of a criminal (OCGA § 16-10-50). He brings this appeal from his conviction and sentence of voluntary manslaughter (OCGA § 16-5-2) and the hindering apprehension of a criminal charge. Held:

1. Defendant’s first and second enumerations of error in essence challenge the sufficiency of the evidence to support the guilty verdicts returned on the charges against him. Construed most strongly in favor of the verdicts, the evidence showed that Willie Battle, the victim, and Nathaniel Respress, a person defendant knew “pretty well,” got into a fight in front of Jeanette’s, a place near Roberta in Crawford County where patrons “dance and drink and play games.” Defendant succeeded in eventually breaking up the fight. Defendant’s statement to police following his arrest (although repudiated by him at trial) indicated that Battle beat Respress badly, and that Respress “got back in [defendant’s] car [and] said, ‘Pm going to get my gun and kill his ass.’ ” Defendant drove Respress home, where Respress obtained a shotgun and returned to defendant’s car stating, “Carry me back over to Jeanette’s.” They returned to Jeanette’s where Respress shot and killed Battle. Defendant then took Respress to his aunt’s home in Jackson, Georgia. Defendant left and was arrested in Monroe County while returning to Roberta.

Defendant was jointly charged with Respress for Battle’s murder. “Even though [defendant] may not have inflicted the fatal wound, he can be held criminally responsible for the [homicide] as a party to the crime. Under [OCGA § 16-2-20 (a)] every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. One is concerned in the commission of a crime where the person either directly commits, intentionally causes another to commit, intentionally aids or abets the commission of, or intentionally advises, or otherwise encourages another to commit the crime. [OCGA § 16-2-20(b).]” (Citation and punctuation omitted.) Goins v. State, 164 Ga. App. 37, 38 (296 SE2d 229) (1982). “Mere presence at the scene of a crime is insufficient to convict one of being a party to the crime, but presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. Criminal intent may be found by the jury upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” (Citations and punctuation omitted.) Lunz v. State, 174 Ga. App. 893, 895 (332 SE2d 37) (1985). “The jury could reasonably have found that [defendant’s] acts proved criminal responsibility as a party to the crime. [Cit.] Viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found [defendant] guilty of [voluntary manslaughter] beyond a reasonable doubt. [Cits.]” Goins, supra at 38. See Jones v. State, 250 Ga. 11 (295 SE2d 71) (1982), cert. den., 459 U.S. 1176 (1983); Highfield v. State, 246 Ga. 478 (1) (272 SE2d 62) (1980); cf. Brown v. State, 250 Ga. 862 (1) (302 SE2d 347) (1983), wherein the court found no evidence of one of the defendants’ participation in the shooting aside from his mere presence at the scene.

Having found sufficient evidence to affirm defendant’s conviction of voluntary manslaughter, we are compelled to reverse his conviction of hindering the apprehension of a criminal. We agree with the State that the crime of hindering the apprehension of a criminal is not included within the crime of murder, see Moore v. State, 240 Ga. 210 (1) (240 SE2d 68) (1977); Pressley v. State, 207 Ga. 274 (5) (61 SE2d 113) (1950), or of manslaughter, see Moore v. State, 94 Ga. App. 210, 213 (94 SE2d 80) (1956). However, “[a] person commits the offense of hindering the apprehension or punishment of a criminal when, with intention to hinder the apprehension or punishment of a person whom he knows or has reasonable grounds to believe has committed a felony ... , he: (1) [h] arbors or conceals such person; or (2) [c]onceáis or destroys evidence of the crime.” OCGA § 16-10-50 (a). “This definition eliminates the idea of participation by a person guilty of such an offense in the perpetration of the major crime [as a party to the crime].” Ivey v. State, 186 Ga. 216 (197 SE 322) (1938); see also Hill v. State, 221 Ga. 65 (6) (142 SE2d 909) (1965). See generally Moore v. State, 240 Ga. 210 (1), supra.

2. Defendant’s third enumeration posits two arguments assigning error to the trial court’s admitting into evidence certain statements made by defendant to the police following his arrest. As to defendant’s alleged intoxication, we find no error in the trial court’s finding that although defendant had been drinking earlier on the night of the shooting, his observed behavior at the time the statements were made (shortly after his arrest and again several hours later) “was not inconsistent with the ability to freely and voluntarily waive rights for the purposes of making a confession. [Cit.]” Smith v. State, 141 Ga. App. 720, 721 (234 SE2d 385) (1977); accord Carter v. State, 257 Ga. 510 (3) (361 SE2d 175) (1987); Allen v. State, 231 Ga. 17 (2) (200 SE2d 106) (1973), cert. den., 414 U. S. 1159 (1974).

We likewise find meritless defendant’s assertion that the second interrogation of him by police was conducted after he had told them he did not wish to talk with them. Counsel on appeal correctly notes that trial counsel raised no objection on this ground in the court below. “It is well settled in this state that while evidence may be subject to objection, yet if the only objection made was not properly sustainable or not made on the proper ground, no reversible error is committed by the trial court in allowing the evidence to be submitted to the jury. [Cit.] Thus what would perhaps otherwise be a valid reason why evidence should not be admitted will not be considered on appeal unless that specific reason was urged below. [Cits.]” Moore v. State, 176 Ga. App. 251, 252 (335 SE2d 716) (1985). This rule applies to confessions and/or incriminating statements, objections to which may likewise be waived through nonobjection at trial. Reeves v. State, 241 Ga. 44 (1) (243 SE2d 24), cert. den., 439 U. S. 854 (1978); Abrams v. State, 223 Ga. 216 (9) (154 SE2d 443) (1967); Hill v. State, 214 Ga. 794 (1) (107 SE2d 662) (1959).

3. Finally, we find no merit in defendant’s challenge to the trial court’s charge on impeachment. Although the language of the charge has been disapproved and trial courts urged to discontinue its use, the charge provides no basis for reversal on constitutional grounds. Noggle v. State, 256 Ga. 383 (4) (340 SE2d 175) (1986). In any event, trial counsel’s negative response to the trial court’s inquiry concerning objections to the charge raised “a procedural default which bars subsequent appellate review of the charge.” Rann v. State, 183 Ga. App. 234, 236 (358 SE2d 644) (1987); Kelly v. State, 174 Ga. App. 424 (4) (330 SE2d 165) (1985); see also Gaines v. State, 177 Ga. App. 795 (1) (341 SE2d 252) (1986).

Judgment affirmed in part and reversed in part.

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

Decided November 4, 1987.

Robert M. Bearden, Jr., for appellant.

Willis B. Sparks III, District Attorney, for appellee.


author: Deen, Presiding Judge.

text:
    75304.
    BOOKER et al. v. TRIZEC PROPERTIES, INC.
    (363 SE2d 13)
   Deen, Presiding Judge.

On July 1, 1983, the law firm of James Booker, P. C., executed a lease with Trizec Properties, Inc. (Trizec) for office space on the tenth floor of an office building on Peachtree Street. That written lease, which expired on June 30, 1985, provided that the lease would become a month to month tenancy at the expiration of the stated term, requiring thirty days’ notice to terminate. Pursuant to this provision, on March 13, 1986, Trizec gave James Booker, P. C., which had remained in possession of the premises, notice to vacate by April 30, 1986.

Upon the. protest of James Booker, P. C., that its status was that of tenant at will entitled to sixty days’ notice, negotiations between Trizec and James Booker, as president of James Booker, P. C., resulted in an agreement that the law firm would vacate the tenth floor office space and move to a much larger office suite on the third floor, which he could occupy for May, June, and July 1986, rent-free. (This agreement was embodied in a letter dated May 20, 1986, prepared by Trizec’s attorney, addressed to James Booker, but signed by James Booker as president of James Booker, P. C.) This agreement also provided that Trizec was willing to discuss a lease for the third floor space for some term following July 1986 but requested that any discussions be concluded by mid-June 1986.

No lease agreement was reached, but James Booker, P. C., did not vacate the premises on July 31, 1986. The next day Trizec demanded immediate possession of the premises, and repeated the demand on August 22, 1986, upon Booker’s continued refusal to vacate. Trizec then commenced this dispossessory proceeding on August 26, 1986, against James Booker, individually. Trizec’s subsequent motion to add James Booker, P. C., as a party defendant was granted on October 31, 1986, and James Booker, P. C., was duly served on November 19, 1986. The law firm remained in possession of the premises even up to the date of trial. Upon trial of the matter, Trizec was awarded a writ of possession and $10,262.76 for past rent due. This appeal by James Booker and James Booker, P. C., followed. Held-.

1. The jury found that the fair market value of the third floor office space in question was $14 per square foot, which was certainly within the range of evidence on that issue. It was undisputed that the third floor office suite actually contained 1,907 square feet. In determining the monthly fair market value, the trial court simply multiplied the square footage by the square foot rate. The appellants contend that, because not all of the new office space was used, the jury should also have determined the issue of the accountable square footage. Regardless of how much of the third floor office space was actually used by the law firm, by virtue of the holding over, Trizec was deprived of possession and use of the entire office suite. Accordingly, the trial court properly declined to allow the jury to consider discounting the amount of countable square footage.

2. A demand for possession is a condition precedent to the landlord’s right to dispossess, and where a demand for possession is based on the termination of a lease, that demand should be made upon or after the termination of the lease. OCGA § 44-7-50 generally; see Metro Mgt. Co. v. Parker, 247 Ga. 625 (278 SE2d 643) (1981). The appellants contend that the two demands for possession made in August 1986 were nugatory because the tenancy at will between the parties had not yet terminated.

The agreement of May 20, 1986, between Trizec and James Booker or James Booker, P. C., provided for a definite term expiring on July 31, 1986. When that term expired with no further agreement having been made by the parties and with no further payment and acceptance of rent, a tenancy by sufferance resulted. See Minor v. Sutton, 73 Ga. App. 253 (1) (36 SE2d 158) (1945). The language in the agreement indicating a willingness to discuss a future lease for the third floor premises certainly did not constitute an agreement for a future lease that would create a tenancy at will. Cf. Plank v. Bourdon, 173 Ga. App. 391, 394 (326 SE2d 571) (1985). The August 1986 demands for immediate possession thus were valid.

3. The appellants also attack the sufficiency of service upon James Booker, P. C. The dispossessory originally was filed against James Booker, and the return of service indicates that Booker was served by “nail and mail” at the third floor office. Any possible issue of notice stemming from a deficient “nail and mail” service upon Booker individually was obviated by his timely answer to the summons. Housing Auth. of Atlanta v. Sterlin, 250 Ga. 95 (296 SE2d 564) (1982). There is no question that the service perfected upon James Booker, P. C., in November 1986 after the corporate entity was added as a defendant was sufficient.

In a related enumeration of error, the appellants contend that the trial court erred in allowing James Booker, P. C., to be added as a defendant pursuant to OCGA § 9-11-21. As noted by the appellants, that Code section was not intended to remedy the mistake of suing the wrong party by allowing substitution of the right party. Lamas Co. v. Baldwin, 120 Ga. App. 149 (169 SE2d 638) (1969); Nelson v. Sing Oil Co., 122 Ga. App. 19 (176 SE2d 227) (1970). However, the instant case involved purely an addition of another defendant, and not a substitution of defendants. There was no showing that the trial court abused its discretion in finding that the corporate entity would not be prejudiced by being added as a defendant and that Trizec had a valid justification for failing to name and serve the corporation originally, and thus we find no error. Cf. Aircraft Radio Systems v. Von Schlegell, 168 Ga. App. 109 (2) (308 SE2d 211) (1983).

Decided October 15, 1987

Rehearing denied November 5, 1987

James Booker, pro se.

William N. Withrow, Jr., Anne G. McGlamry, for appellee.

4. Following the close of the plaintiff’s evidence, the trial court dismissed James Booker, individually, as a defendant, on the basis that the evidence clearly showed that any lease agreement or holding over had involved only James Booker, P. C. However, in its order and judgment entered ten days after the trial, the trial court found James Booker and James Booker, P. C., both to be liable, jointly and severally, because “James Booker is the alter-ego of the defendant James Booker, P. C., and as to this relationship the evidence has pierced the corporate veil.” We agree with the appellants that the trial court erred in so entering judgment against James Booker, individually, after obviating any need of that defendant to address the issue at trial by virtue of its dismissal of the individual defendant after the presentation of the plaintiff’s evidence. Moreover, we also agree that the evidence hardly pierced the corporate veil. Accordingly, the judgment of the trial court against James Booker, individually, must be reversed.

5. The remaining enumerations of error are without merit.

Judgment affirmed in part and reversed in part.

Birdsong, C. J., and Pope, J., concur.


text:
    75520.
    FIRST NATIONAL BANK OF COBB COUNTY v. ATLANTA CLASSIC CARS, INC.
    (363 SE2d 16)
   Deen, Presiding Judge.

According to the facts stipulated by the parties, CBS Leasing, Inc. (CBS), was a licensed automobile dealer that regularly bought, sold, and leased new and used cars. Its usual method of business involved finding a lease customer for an automobile, and then selling the vehicle and assigning the lease to a financial institution rather than retaining ownership and receiving the monthly lease payments. In late spring 1981, CBS ordered a new Mercedes from Atlanta Classic Cars, Inc. (ACC), which delivered the vehicle to CBS on July 10, 1981. Although the invoice indicated a cash sale for $45,568, CBS did not pay for the car. Ostensibly to ensure payment, however, ACC retained the manufacturer’s statement of origin (MSO).

Prior to the delivery of the vehicle, CBS had made arrangements to lease the car to an individual, and then sell the vehicle and assign the lease to the First National Bank of Cobb County (FNB). This arrangement collapsed when the individual declined to lease the vehicle, and consequently, on July 10, 1981, CBS executed an agreement purporting to lease the vehicle to itself, and then sold the vehicle and assigned the lease to FNB for $47,900, which FNB paid in full. On July 16, 1981, ACC repossessed the vehicle. The next day, FNB learned of CBS’s financial straits (which eventually led to CBS’s bankruptcy) and ACC’s repossession of the vehicle.

FNB subsequently commenced this action against ACC, seeking to recover $47,900 or the vehicle, which had already been resold by ACC. The trial court entered judgment for ACC, after concluding (1) that under the Motor Vehicle Certificate of Title Act (C.T.A.), OCGA § 40-3-1 et seq., title did not pass from ACC to CBS because ACC retained the MSO; (2) that FNB had sufficient reason to know that CBS did not own the vehicle; and (3) that ACC at least had a perfected security interest in the vehicle that had priority over any security interest FNB had in it. FNB brings this appeal, contending that all of the trial court’s conclusions were erroneous. Held:

1. Initially, we consider the issue of whether, under the U.C.C. or C.T.A., ACC’s retention of the MSO prevented title from passing to CBS and later to FNB. OCGA § 40-3-31 (d) does provide in part that “no purchaser or transferee shall acquire any right, title, or interest in and to a vehicle purchased by him unless and until he shall obtain from the transferor the certificate of title thereto, duly transferred in accordance with this Code section.” However, in Owensboro Nat. Bank v. Jenkins, 173 Ga. App. 775, 778-779 (328 SE2d 399) (1985), notwithstanding such strict language of the above Code section, this court answered in the negative the question, “[C]an it be said that a purchaser of a vehicle on which a certificate of title has not been previously issued holds no title during that often protracted time between the actual purchase and the issuance of title?” See also Hightower v. Berlin, 129 Ga. App. 246 (199 SE2d 335) (1973). Accordingly, when ACC sold the vehicle to CBS on July 10, 1981, it may have reserved a purchase money security interest (OCGA § 11-9-107) in the vehicle, but title passed to CBS.

2. FNB also contends that it purchased the vehicle and took an assignment of a bona fide lease from CBS, rather than merely financing CBS’s purchase of the car and taking a security interest, and that as a buyer in the ordinary course of business it took the vehicle free of any security interest created by CBS in favor of ACC. “A ‘lease intended as security’ is an agreement in which the ultimate intent is a sale. The prime essential distinction between a lease and a conditional sale is that in a lease the lessee never owns the property. ‘In the absence of a right or option in the lessee to acquire ownership of the leased property, the transaction is one of lease.’ [Cit.]” Ford v. Rollins Protective Svcs., 171 Ga. App. 882, 884 (322 SE2d 62) (1984). Even though the lease agreement in this case shared elements with other “leases” held to have been disguised secured transactions, we conclude that the lease agreement actually was, as declared in the agreement itself, one of leasing only. The estimated residual value of $23,975 guaranteed by the lease at the end of the four-year lease term does not appear to be out of keeping with the market value of such a car, and certainly was not a nominal sum that could be paid by the lessee as a purchase price. The lessee was given no option to purchase, and would not enjoy the full benefit of the actual resale price at the end of the lease, only the liability for any deficiency. Compare Pierce v. Leasing Intl., 142 Ga. App. 371 (235 SE2d 752) (1977). Moreover, it is apparent from the stipulated facts that the intent of FNB and CBS was for CBS to find another party to be the lessee.

OCGA § 11-1-201 (9) defines buyer in ordinary course of business as “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 . . .” OCGA § 11-9-307 (a) provides that “[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.” Reading those two sections together, a buyer who merely knows of a security interest of another party covering certain goods constitutes a buyer in ordinary course of business and takes free of that security interest, whereas a buyer who knows that the sale actually violates some term of the security agreement not waived by the secured party takes subject to that security interest. See the 1972 Official Comment No. 2 to § 9-307 of the Uniform Commercial Code.

In this case, CBS was in the business of selling automobiles and assigning the leases it had obtained on the vehicles to a financial institution; the sale of the vehicles was an integral part of and not merely incidental to its primary business. See United Car. Bank v. Capital Auto. Co., 163 Ga. App. 796 (294 SE2d 661) (1982). Concerning the issue of FNB’s knowledge, the documents presented by CBS in its dealings with FNB, i.e., the invoice that indicated a cash sale between ACC and CBS and a copy of the MSO, would not suggest the existence of a security interest held by ACC, much less demonstrate to FNB a violation of some term of a security agreement between ACC and CBS. Those documents actually were quite consistent with an unencumbered sale between ACC and CBS. Accordingly, FNB was a buyer in ordinary course of business and took the vehicle free of any security interest reserved by ACC, and the trial court erred in entering judgment for ACC rather than FNB.

Decided October 20, 1987

Rehearing denied November 5, 1987

Hansell L. Smith, David P. Darden, for appellant.

John A. Swann, Cyrus Malone, for appellee.

Judgment reversed.

Birdsong, C. J., and Pope, J., concur.


text:
    75565.
    CHASE & ASSOCIATES, INC. v. G S & M COMPANY.
    (363 SE2d 19)
   Deen, Presiding Judge.

We granted an interlocutory appeal to determine whether the Houston County Superior Court erred in denying summary judgment to appellant Chase & Associates (Chase) on the issue of a 10 percent commission allegedly due to Chase under an exclusive listing contract for the sale of real property, known as the “Law & Finance Plaza,” owned by appellee G S & M Company. Appellant asserts that, under the terms of the contract, there is no genuine issue of material fact in the case and that, as a matter of law, the commission was due and payable as expressly provided in the listing agreement.

According to the record, before entering into the contract at issue here, the parties had previously entered into two exclusive listing contracts identical to the one involved in the case at bar. Annexed to each of the first two contracts was an addendum providing that the 10 percent commission would not be due Chase if, during the term of the contract, G S & M were to sell the property to any of some half-dozen specifically named parties with whom G S & M had discussed possible sale of the property prior to execution of the first exclusive listing contract. The third contract (the one at issue here) was identical to the first two but had no addendum of any sort annexed. Mrs. Lutwin, G S & M’s president, testified by deposition that she had been aware at the time of signing that no addendum was attached, but that she was under “duress” of the threat of imminent foreclosure if the property were not sold promptly, and made no inquiry or comment regarding the omission from the copy of the contract signed by her at her home in New York and mailed back to Chase.

The Law and Finance Plaza property was sold by G S & M to purchasers not listed in either addendum; no commission was paid. Chase brought an action to enforce the commission provision of the listing agreement and, upon being denied summary judgment, appealed to this court, alleging that the contract was clear and unambiguous and that the trial court therefore erred in denying its motion for summary judgment. Held:

Our scrutiny of the record indicates that the third exclusive listing contract, during the term of which G S & M sold the subject property, is complete, clear, and unambiguous. Looking to the four corners of the document as well as to each separate provision, we find nothing to suggest that, as appellee contends, the addendum to the first two listing contracts constituted a separate and continuing contract which would survive the exclusive listing agreements, Hardin v. Great Northern Nekoosa Corp., 237 Ga. 594 (229 SE2d 317) (1976); nor do we find any evidence of consideration for such a separate and continuing contract. OCGA § 13-3-40. We agree with appellant, moreover, that even if, arguendo, such an independent continuing contract existed, the parties who actually purchased the Law and Finance Plaza property were not among those specifically listed in the addendum as being excluded from the commission provisions of the listing agreements. We agree further with appellant that the parol evidence rule precludes the interpolation into the third listing agreement of any terms other than those which appear on the face of the document. OCGA §§ 13-2-2; 24-6-1; Isaacson v. Carbo, 176 Ga. App. 514 (336 SE2d 373) (1985); Sentry Engineering &c. Co. v. American Olean Tile Co., 172 Ga. App. 769 (324 SE2d 591) (1984). We conclude, therefore, that despite conflicting contentions, there was no genuine issue of material fact raised in the court below and that that court erred in denying summary judgment to appellant. OCGA § 9-11-56 (c), (e). The case must be remanded for entry of judgment consistent with the above.

Judgment reversed and case remanded with direction.

Birdsong, C. J., and Pope, J., concur.

Decided October 20, 1987

Rehearing denied November 5, 1987

Lawrence C. Walker, Jr., Michael G. Gray, for appellant.

Samuel H. Harrison, G. Hughel Harrison, for appellee.

       The addendum by its terms applied not only to Law & Finance Plaza, the property involved here, but also to a second property owned by G S & M; the latter, however, is irrelevant to the case at bar. Added to the addendum annexed to the second listing contract was the handwritten statement: “G S & M agree to pay Chase & Associates a minimum of 1 percent if sold by them.” This provision is not at issue in the case sub judice.


author: McMurray, Presiding Judge.

text:
    74452.
    LeBLANC v. THE STATE.
    (363 SE2d 37)
   McMurray, Presiding Judge.

Defendant appeals his conviction of the offense of trafficking in cocaine. Held:

Defendant enumerates as error the denial of his motion to suppress the contraband upon which his conviction is predicated.

Agent Markonni of the Drug Enforcement Administration, and Henry County Detective W. A. Selph, assigned to a multi-jurisdictional anti-drug detail at the Atlanta airport, were observing passengers deplane from a flight from Ft. Lauderdale, Florida. The flight in question was being observed because the south Florida area is known to law enforcement officers as a significant drug distribution point for the entire country. Agent Markonni testified that he and Detective Selph observed that as defendant deplaned his “right lower leg appeared larger than his left lower leg and he was wearing boots.” As further described by Agent Markonni “it wasn’t the biggest bulge we’ve ever had in terms of an abnormal leg, but it was significant enough so that his right leg was obviously larger than his left leg.” (Agent Markonni testified that he had been involved in approximately 700 drug arrests in Detroit and Atlanta of which approximately 150 involved body bulges.) Based on his experience that carrying drugs in boots is a common concealment method, Agent Markonni suspected that the defendant might be carrying a quantity of controlled substances in his boot.

Detective Selph undertook to follow and observe the defendant. However, shortly thereafter, fearing that Detective Selph’s presence had been noticed by the defendant, the officers decided to interview defendant.

The officers, who were casually dressed and their weapons concealed, approached defendant, identified themselves as law enforcement officers and asked if they “could speak to him for a few minutes and he said yes.” Agent Markonni asked to see the defendant’s airline ticket which he produced and which was a one way cash ticket from Ft. Lauderdale to Baton Rouge in the name of Daniel LeBlanc. The fact that it was a cash ticket was significant in that cash tickets are commonly purchased in false names and used by drug dealers to avoid being traced. When asked his name the defendant said he was Daniel LeBlanc and when asked to produce identification defendant produced a driver’s license also in the name of Daniel LeBlanc. Both the above ticket and driver’s license were consistent with defendant’s correct identity.

Defendant argues that Agent Markonni’s questions should have ended when the defendant’s ticket and driver’s license matched the name the defendant gave. However, the record reveals no evidence that defendant had any cause to believe he was no longer free to leave after he identified himself. Defendant voluntarily remained in the officers’ presence and no seizure occurred at this point. Allen v. State, 172 Ga. App. 663, 666 (2) (324 SE2d 521).

At this point Agent Markonni explained that he and Detective Selph were narcotics agents looking for drugs coming through the airport and explained to defendant that his right boot appeared to be larger than his left boot and asked defendant if he was carrying anything in his boots. The defendant gave a negative response whereupon Agent Markonni asked him if he would mind raising up his trouser leg. Agent Markonni testified that “I asked him if he would mind raising up his trouser legs so that I could see if there was nothing [sic] in his boots. And, at that point, he reached down and he raised up his left trouser leg very quickly and freely and I looked down and there was nothing in his boot. I felt his boot. There was nothing inside of it. And, then he reached down and raised up his trouser leg but as he got to the top of his right trouser leg, with his hands under the trouser leg, he also grabbed his sock and pulled it up.” Agent Markonni further testified that he could see that under the sock there was a bulge on the side of defendant’s right leg “so what it meant was he was pulling his sock up to make sure that the bag or whatever was inside was covered completely.” When Agent Markonni saw the bulge he briefly felt it and “it felt like chunks and powder” which suggested to him based on his past experience that the substance was cocaine, and at that time placed the defendant under arrest and removed a quantity of cocaine from his sock.

Agent Markonni testified that when he and Detective Selph approached defendant he was standing in front of a vending machine and that they did nothing to stop the defendant from leaving, that defendant had access to walk away if he wanted to walk away, that the conversation with defendant was conducted in a normal conversational tone of voice and that defendant was not threatened or coerced in any way to get him to talk to the officers or to get him to give identification. Agent Markonni testified that he did not require defendant to pull up his pants leg, but asked him if he would.

Contrary to defendant’s argument, the conduct of the officers in approaching defendant and identifying themselves as law enforcement officers accompanied with their request to see defendant’s ticket and identification, as well as their request that defendant raise his trouser leg, did not amount to an intrusion upon any constitutionally protected area. Nor did the absence of an express statement to defendant that he was free to leave suggest that defendant was “seized.” Nothing suggests defendant had any objective reason to believe that he was not free to end the conversation and proceed on his way. Such police-citizen encounters involving no coercion or detention are without the compass of the 4th Amendment. United States v. Mendenhall, 446 U. S. 544 (100 SC 1870, 64 LE2d 497); Goodman v. State, 180 Ga. App. 347 (349 SE2d 216); Ullrich v. State, 176 Ga. App. 260 (335 SE2d 490); Allen v. State, 172 Ga. App. 663, supra; Moran v. State, 170 Ga. App. 837 (318 SE2d 716).

Decided November 5, 1987.

T. Michael Martin, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticher, Assistant District Attorney, for appellee.

Finally, we reject defendant’s argument that when Agent Markonni reached and felt the suspicious bulge, he lacked probable causé. At that time Agent Markonni was aware that defendant was traveling from a drug distribution point on a cash ticket (as often used by drug couriers) and was steadfastly denying the existence of anything in his boot which might cause the bulge repeatedly observed by the agent. The agent also had knowledge that from his experience such concealment is a common method of transporting contraband. Based upon this evidence we find that Agent Markonni had probable cause to believe that defendant was committing an offense involving concealed contraband. Allen v. State, 172 Ga. App. 663, 666 (5), supra. The trial court did not err in denying defendant’s motion to suppress evidence.

Judgment affirmed.

Beasley, J., concurs. Sognier, J., concurs in the judgment only.


text:
    75105.
    MIDDLEBROOKS v. THE STATE.
    (363 SE2d 39)
   Benham, Judge.

Appellant was convicted by a jury of rape. He enumerates as error the use of a police accident report to impeach his alibi and to place his character in issue, and the trial court’s denial of his motions for mistrial on that ground and on the ground that he was seen by some jurors while in the custody of deputies. Finding no error, we affirm the judgment of conviction.

Decided November 5, 1987.

Joe A. Weeks, for appellant.

1. Appellant complains that the prosecuting attorney should not have been allowed to ask him about information in an unauthenticated police accident report, since it thereby placed his character in issue, impeached his alibi, and admitted hearsay into evidence. Our review of the record reveals that appellant’s alibi was that he was involved in an automobile accident at the time the rape occurred and so could not have committed the crime. Appellant testified that he came down to the police station after finding out the police were looking for him, showed a copy of the accident report to an officer, and was arrested for the rape. Since appellant relied on the accident report and the statements therein as proving his alibi then and at trial, the report was admissible as his voluntary, pre-arrest statement and was not inadmissible hearsay. See Thomas v. State, 243 Ga. 217 (1) (253 SE2d 190) (1979).

Moreover, the State did not place appellant’s character in issue by questioning him about information in the report on which he relied and based his alibi, but merely exercised its right to cross-examine and attempt to impeach him as any other witness could be impeached. See OCGA § 24-9-20 (b); Favors v. State, 145 Ga. App. 864 (1) (244 SE2d 902) (1978).

2. Since we held in Division 1 of this opinion that the trial court did not err in permitting the State to question appellant as it did, we find no error in the denial of appellant’s motion for mistrial on that issue.

3. Lastly, appellant complains that he should have been granted a mistrial because he “passed by several of the jurors [while] being escorted by three heavily armed deputies.” Appellant was not in handcuffs at that time. The trial court denied the motion for mistrial, stating that it had no reason to think that the jurors would be prejudiced by what appellant alleged they saw. We find no error in the court’s ruling. It is within the trial court’s discretion to instruct police authorities to use whatever restraint necessary to secure the defendant outside the courtroom during transportation to and from jail, and the mere fact that jurors happen to see a defendant under “heavy guard” or otherwise restrained outside the courtroom is not grounds for an automatic mistrial. See Starr v. State, 209 Ga. 258 (5a) (71 SE2d 654) (1952); Robinson v. State, 164 Ga. App. 379 (2) (296 SE2d 225) (1982).

Judgment affirmed.

Banke, P. J., and Carley, J., concur.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Wendy Shoob, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.


text:
    75196.
    COURSON v. THE STATE.
    (363 SE2d 41)
   Benham, Judge.

Appellant was convicted of driving while under the influence of alcohol. OCGA § 40-6-391. On appeal he asserts as error the trial court’s denial of his motion for new trial, his motion to suppress, and his demurrers; the admission into evidence of the three exhibits presented against him; and the giving of a charge.

Appellant was tried on an accusation which charged him with “driving under the influence; a violation of OCGA § 40-6-391; for that the said accused on the 4th day of October [1986] . . . did then and there unlawfully drive a motor vehicle while there was 0.12 percent or more by weight of alcohol in his blood. . . .”

1. Appellant’s motion for new trial was based upon the general grounds and was appropriately denied. The State presented evidence that appellant was stopped after a police officer observed appellant’s vehicle straddling the centerline of a road. The officer testified that appellant staggered when he stepped away from his vehicle; exhibited slurred speech; had an odor of alcohol about him; and admitted he had had a few drinks. His blood alcohol content, as measured by an intoximeter, registered .17. The evidence was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of driving under the influence. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); OCGA § 40-6-391 (a) (4); Hadden v. State, 180 Ga. App. 496 (3) (349 SE2d 770) (1986).

2. Appellant sought suppression of the intoximeter reading on the ground that he was not advised of his right to have an independent examination of his blood, breath, or urine. See OCGA § 40-6-392 (a) (3). The arresting officer testified that he had informed appellant of his right to an independent examination at the scene of the arrest, and the intoximeter operator testified that appellant, after completing the intoximeter breath test, was again informed of his right to an additional test. The intoximeter operator stated that appellant executed a form in which he waived his right to undergo an additional test, and that form was admitted into evidence. The trial court did not err in denying appellant’s motion to suppress. Tiller v. State, 176 Ga. App. 797 (338 SE2d 42) (1985).

3. During the trial, three documents subsequently admitted into evidence were identified by three witnesses for the State as: (1) a copy of the intoximeter operator’s certification to operate the machine; (2) the computer printout of appellant’s intoximeter test results; and (3) the written waiver of an independent blood-alcohol test executed by appellant. Appellant objected to the admission of all the documents at trial and claims on appeal that no proper foundation was laid for their admission.

A copy of the document certifying the testing officer to use the intoximeter was admitted into evidence because the original of the document, displayed by the officer in court, must, under rules promulgated by the Department of Public Safety, be kept in the possession of the operator. See Dept, of Public Safety Rule 570-9-.06 (6). Having accounted for the absence of the original, the State was entitled to tender an identified copy (OCGA §§ 24-5-2 and 24-5-4), and the discretion exercised by the trial court in determining that the original was inaccessible was not abused. Therefore, the decision of the trial court will not be overturned by this court. Knox v. State, 165 Ga. App. 26 (2) (299 SE2d 105) (1983).

Since the intoximeter printout of appellant’s test result was identified by the operator as appellant’s test result, a proper foundation for admission of the document was laid, and its admission was not error. The written waiver of the right to an independent blood-alcohol content examination was not subject to the strictures of OCGA § 17-7-210 (see Dean v. State, 168 Ga. App. 172 (2) (308 SE2d 434) (1983)), and appellant was not entitled to the advice of counsel when deciding whether to request an independent examination, allowed under the Implied Consent Law. See Hardison v. Chastain, 151 Ga. App. 678, 679 (261 SE2d 425) (1979). In point of fact, since the State need not have proven an affirmative waiver of the right to an additional test (State v. Dull, 176 Ga. App. 152 (335 SE2d 605) (1985)), but need only have shown appellant was informed of that right at the time of arrest, the waiver signed by appellant was extraneous. See Tiller v. State, supra.

4. Appellant cites as error the denial of his demurrer to the accusation. Appellant contended that the traffic citation charged him with DUI while the accusation charged him with a different crime, driving with a blood-alcohol level over .12. OCGA § 40-6-391 (a) (4). “Subsection (a) (4) simply sets out an alternative method of proving the crime established by the DUI statute . . . [S]ubsections (a) (1) and (a) (4) merely set out two different methods of proving the same crime. . . .” Hogan v. State, 178 Ga. App. 534, 535 (343 SE2d 770) (1986.) Appellant also complains that the accusation is not based upon an affidavit sworn to before a magistrate or a judge. “[A]n accusation need not be supported by an affidavit where the defendant has been previously arrested in conjunction with the transaction charged in the accusation. See OCGA § 17-7-71 (a); [cit.].” Manning v. State, 175 Ga. App. 738 (1) (334 SE2d 338) (1985).

Decided November 5, 1987.

J. Laddie Boatright, for appellant.

Richard W. Shelton, Solicitor, for appellee.

5. In his final enumeration of error, appellant contends the trial court gave an unauthorized charge. The charge appellant finds, objectionable is one in which the trial court instructed the jury on the elements of OCGA § 40-6-391 (a) (1-3) and on the inferences found in OCGA § 40-6-391 (b). The jury was informed that “[i]f there was at that time .12 percent or more by weight of alcohol in the person’s blood, ... it shall be unlawful for any person to drive or be in actual, physical control of any moving vehicle.” See OCGA § 40-6-392 (b) (4). Since appellant was charged with DUI by having .12 percent or more by weight of alcohol in his blood (OCGA § 40-6-391 (a) (4)), the instructions concerning being a less safe driver (OCGA § 40-6-391 (a) (1-3)) and the inferences listed in OCGA § 40-6-392 (b) (1-3) were superfluous. See Stewart v. State, 176 Ga. App. 148 (335 SE2d 603) (1985). However, since the jury was also informed of the legal ramifications of a blood-alcohol content of over .12 percent and there was evidence that appellant’s blood-alcohol content was greater than .12 percent, we do not believe the additional language in the charge was harmful to appellant.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


text:
    75267.
    TAYLOR v. CITY OF ATLANTA et al.
    (363 SE2d 45)
   Benham, Judge.

Appellant was convicted in the City of Atlanta Municipal Court for violating the Housing Code of the City of Atlanta. Acting pro se, he petitioned for a writ of certiorari to the Superior Court of Fulton County. The writ was issued by the clerk, but the respondent municipal court judge did not answer within the 30-day period. OCGA §§ 5-4-3 and 5-4-7. Appellee City of Atlanta moved to dismiss the writ, alleging appellant had failed to procure an answer from the respondent judge (OCGA § 5-4-7); failed to serve a copy of the petition and writ on appellee and show that service was perfected (OCGA § 5-4-6 (b)); and failed to file a bond with the municipal court before applying for the writ (OCGA § 5-4-20 (a)). The superior court granted the motion and dismissed the writ based on the first two grounds, and appellant, still acting pro se, filed a notice of appeal seeking this court’s review of that judgment.

Decided November 5, 1987.

Charles E. Taylor, pro se.

Raines F. Carter, City Solicitor, for appellees.

We must dismiss appellant’s appeal, inasmuch as he failed to obtain an order of this court permitting the appeal under OCGA § 5-6-35 (a) (1). Crawford v. Goza, 168 Ga. App. 565 (310 SE2d 1) (1983). This disposition of the appeal is required even though the superior court dismissed the case before reaching its merits. Brewer v. Bd. of Zoning &c. of Atlanta, 170 Ga. App. 351 (317 SE2d 327) (1984).

Appeal dismissed.

Banke, P. J., and Carley, J., concur.


author: Banke, Presiding Judge.

text:
    75498.
    ROBERTSON v. THE STATE.
    (363 SE2d 43)
   Banke, Presiding Judge.

Michael Robertson brings this appeal from his convictions of rape and sodomy. Held:

1. The appellant contends that the evidence was not sufficient to suppport the verdict. At trial, the appellant did not deny having had intercourse with the victim but testified that he had acted with her consent. The victim testified that the sexual acts were committed against her will. The issue, then, was one of credibility and, as such, it was properly submitted to the jury. See generally Bryant v. State, 174 Ga. App. 468 (1) (330 SE2d 406) (1985). Having reviewed the evidence in the light most favorable to the jury’s verdict, we conclude that it was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the crimes of rape and aggravated sodomy. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The appellant enumerates as error the admission of certain physical evidence, the existence of which had already been brought to the jury’s attention pursuant to a written stipulation entered into by the parties. As we can conceive of no prejudice which could have resulted to the appellant from the submission of these items to the jury under such circumstances, we find no merit in this enumeration of error.

3. The appellant asserts that he was prejudiced by the introduction of irrelevant evidence regarding matters of police procedure. Again, however, the appellant has failed to show how the evidence in question could have been harmful to him. Accordingly, this enumeration of error also establishes no ground for reversal. See generally Hill v. State, 177 Ga. App. 850 (1) (341 SE2d 322) (1986).

Decided November 5, 1987.

Michael Greene, for appellant.

Thomas C. Lawler III, District Attorney, Phil Wiley, Assistant District Attorney, for appellee.

4. The appellant contends the trial court erred in refusing to grant a mistrial when a police detective, in response to questions posed by the district attorney concerning the officer’s investigation, testified that, four to five days after making a voluntary statement to police, the appellant “said that he had secured an attorney, and the attorney had instructed him not to give any further statements. . . It appears that the trial court, in response to the appellant’s motion, gave curative instructions to the jury to the effect that the appellant’s exercise of his right to remain silent could not be used as evidence against him, and it further appears that the appellant did not thereafter renew his motion for mistrial, nor request further curative instructions. It follows that the issue was not preserved for appeal. See Fambro v. State, 165 Ga. App. 445, 447 (299 SE2d 114) (1983).

5. The appellant complains of the trial court’s failure to give two requested charges, one concerning the weight to be given a law enforcement officer’s testimony and the other concerning the weight to be afforded the testimony of one witness vis-a-vis that of numerous witnesses. The trial court specifically charged the jurors that they were the final arbiters of “what witnesses you will believe or disbelieve and what testimony you will credit or discredit.” It is not necessary to give the exact language of a request to charge when the applicable principles are fairly covered by the charge as given. Howard v. State, 151 Ga. App. 759, 760 (261 SE2d 483) (1979). We conclude that the basic principles addressed by the requested charges at issue here were adequately covered by the trial court’s charge on the credibility of witnesses in general, and we consequently find these enumerations of error to be without merit.

6. The record clearly reflects that the jury was adequately instructed on the state’s burden of proof. Consequently, the appellant’s final enumeration is also without merit.

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    74880.
    ENDSLEY v. THE STATE.
    (363 SE2d 1)
   Benham, Judge.

Appellant was convicted in a bench trial of driving a vehicle without a license (OCGA § 40-5-20 (a)); operating an unregistered vehicle (OCGA § 40-2-8 (a)); operating a vehicle without a valid numbered license plate (OCGA § 40-2-8 (b)); and operating a motor vehicle without effective insurance (OCGA § 33-34-12 (a)). Appellant, appearing pro se, brings this appeal from his convictions.

1. Appellant initially contends that the accusations upon which he was tried were null and void for various reasons. Contrary to appellant’s assertions, the original accusations were signed by the prosecuting attorney (OCGA § 17-7-71 (a)), and the copies he received had the printed name of the solicitor upon them. See Hardemann v. State, 147 Ga. App. 120 (1) (248 SE2d 189) (1978). Each accusation stated “the offense in the terms and language of the law or so plainly that the nature of the offense charged [was] easily understood. . . .” OCGA § 17-7-71 (c). It was not necessary to include current citations of law within the accusations. See OCGA § 17-7-71 (d); Turner v. State, 233 Ga. 538 (212 SE2d 370) (1975). The motions hearing transcript reflects that appellant was served with copies of the various accusations filed against him. Testimony that appellant was on Hammond Drive rather than on East Hammond Drive as alleged in the accusation was not a fatal variance since the exact location is not a material element of this offense, and the accusation was sufficiently certain since it charged that the offense was committed in a particular county. See Russell v. State, 174 Ga. App. 436 (1) (330 SE2d 175) (1985).

2. Appellant maintains that directed verdicts of acquittal should have been granted because the State did not prove appellant owned the automobile he was driving when he was stopped and ticketed. However, each of the offenses with which appellant was charged (OCGA §§ 40-2-8 (a) and (b); 40-5-20 (a); 33-34-12 (a)) make it illegal to operate an unlicensed, unregistered vehicle without insurance and a driver’s license, and the State proved appellant was operating the automobile. Appellant also argues the State failed to prove the contra pacem clause contained in each accusation. By presenting evidence from which the jury could rationally conclude that appellant’s actions contravened the statutes involved, the State also proved that appellant had acted “contrary to the laws of this State, the good order, peace and dignity thereof.”

3. Appellant’s argument that the trial court lacked jurisdiction because the arresting officer was not an elected official, thereby denying to appellant a republican form of government, is specious and without merit. We similarly view appellant’s argument that only an admiralty court had subject-matter jurisdiction of the accusation concerning his lack of insurance coverage. The State Court of Fulton County had jurisdiction to try appellant for the misdemeanors with which he was charged. See Ga. Const. 1983, Art. VI, Sec. II, Par. VI; OCGA §§ 17-2-2; 15-7-4; U. S. Const., Amend. 10. Personal jurisdiction over appellant was in the State Court of Fulton County since appellant was accused of committing misdemeanors within the geographic confines of Fulton County.

Decided September 10, 1987

Rehearing denied November 6, 1987

O. H. Endsley, pro se.

James L. Webb, Solicitor, E. Duane Cooper, Assistant Solicitor, for appellee.

4. Appellant next asserts he is not a “person” as that term is used in OCGA §§ 40-1-1 (33); 40-2-8 (a) and (b); 40-5-20 (a); and defined in OCGA § 40-1-1 (38). Therefore, he contends, he is not required to have a driver’s license or an automobile tag. “[T]he right to travel by operating a motor vehicle on the roads of this State is a ‘qualified right’ which a citizen exercises by obtaining a license from the State. [Cit.] Under the police power and for the protection of the public, it is constitutionally permissible for the State to impose reasonable conditions to qualify for a license. [Cit.] . . . [There is] no constitutional violation in the fact that the State requires a license to drive.” Lebrun v. State, 255 Ga. 406 (1) (339 SE2d 227) (1986). For similar reasons, it is not unconstitutional for the State to require a valid license plate to be affixed to a motor vehicle required to be registered.

5. Appellant next maintains the trial court erroneously denied his request for counsel not a member of the State Bar of Georgia. “While an accused has a right to representation by an attorney and to represent himself, there is no right to be represented by a non-lawyer third party. . . .” Id. Division 2.

6. Upon review of the record and transcripts of the proceedings, we cannot agree with appellant that he was denied due process of law.

7. Each of the four sentences meted out by the trial court for appellant’s four violations of state law fell within statutory limitations. See OCGA §§ 40-2-8 (a) and (b); 40-5-120 (7); 33-34-12 (a); and 17-10-3. “This court is without authority to review sentences within the statutory range. [Cit.]” Sherrell v. State, 170 Ga. App. 798 (1) (318 SE2d 221) (1984).

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


text:
    74758.
    BUFFINGTON v. SASSER.
    (363 SE2d 2)
   Banke, Presiding Judge.

Prior to 1972, appellant Robert Buffington and appellee Robert Sasser owned and operated separate mechanical subcontracting businesses known, respectively, as Dresco Mechanical Contractors, Inc., and Sasser and Company. The complicated factual scenario giving rise to this litigation had its genesis in 1972, when Buffington and Sasser entered into a joint venture which they incorporated as Dresco Corporation. Buffington served as the new company’s president and Sasser as its vice-president and chief operating officer. Dresco Corporation took over no business already undertaken by its principals’ existing companies, which continued in operation as before.

Dresco Corporation undertook several projects, among them a subcontract to perform certain mechanical work in connection with a construction project at Central State Hospital in Milledgeville, Georgia (hereafter referred to as the “Milledgeville project”). However, shortly after beginning work on this project, the parties decided to terminate their joint venture; and in October of 1972 they entered into a written agreement to that effect. Pursuant to this agreement, the remaining work which the joint venture had undertaken to perform was divided between Buffington and his corporation on the one hand and Sasser and his corporation on the other, with the Milledgeville project being assigned to Buffington and his company, Dresco Mechanical Contractors, Inc. Each party agreed to indemnify the other for any liability arising out of the completion of the various projects assigned to them. Buffington’s agreement to indemnify Sasser (which was to become the subject of the present litigation) specifically provided as follows: “Buffington and Dresco Mechanical agree to indemnify and save harmless Sasser & Company, Inc., Sasser and Dresco Corp. from any and all liabilities and responsibility for or arising out of the subcontracts, purchase orders and projects herein assigned to Dresco Mechanical, whether such liability and responsibility exists now or arises in the future, and do further agree to indemnify and save harmless Sasser & Company, Inc., Sasser and Dresco Corp. from any and all liability and responsibility for or arising out of: (a) any performance or payment bonds issued in connection with . . . construction of . . . [the Milledgeville project].”

In 1976, Buffington and Dresco Mechanical Contractors, Inc., (hereafter sometimes referred to together as “Buffington”) were named along with Sasser, Sasser and Company, Inc., and Dresco Corporation (hereafter sometimes collectively referred to as “Sasser”) as third-party defendants in a federal court lawsuit stemming from the Milledgeville project. In that litigation, Sasser filed a cross claim against Buffington, asserting that the termination agreement required Buffington to indemnify him against any liability with which he might be charged in the suit. The federal court granted summary judgment to Sasser on this cross-claim, concluding that “the assignees [i.e., Buffington] must stand ready to indemnify the movants against any loss suffered in the litigation.” Both parties were, however, subsequently dismissed without prejudice from the federal litigation.

During the course of the federal litigation, Sasser was represented by the law firm of Stokes and Shapiro. Buffington initially had other counsel; however, it appears that at some point during the proceedings the firm of Stokes and Shapiro also began representing Buffington, pursuant to the parties’ express consent to such dual representation. Also, it appears that Buffington settled an unrelated claim against an unrelated party during the pendency of the federal litigation, resulting in his placement of $34,781.97 in escrow with Stokes and Shapiro, “to be applied against any judgment, settlement or agreement of settlement between [Buffington] and Sasser and Sasser & Company.”

After Buffington and Sasser had been dismissed from the federal litigation without an adjudication of liability, Sasser demanded that Buffington reimburse him for his legal expenses incurred in defending the federal suit. When Buffington refused, Sasser filed the present suit in the Superior Court of Fulton County to recover such attorney fees from the money being held in the escrow account, naming both Buffington and Stokes and Shapiro as defendants. Stokes and Shapiro responded by filing a counterclaim against Sasser as well as a cross-claim against Buffington in the nature of an interpleader, in an effort to determine its responsibilities regarding disbursement of the escrow funds.

Buffington moved to transfer the case to the Superior Court of Forsyth County, contending that venue was not proper in Fulton County. The trial court denied the motion, and we denied a subsequent application by Buffington for interlocutory appeal review of that ruling. The trial court later ruled in favor of Sasser on the merits of the case by granting his motion for summary judgment and denying a motion of summary judgment filed by Buffington. This appeal followed. Held:

1. The motion to transfer the proceedings based on improper venue was correctly denied. Although the only named defendant residing in Fulton County was the law firm of Stokes & Shapiro, which was sued solely as a stakeholder, the plaintiff, Sasser, was also a resident of Fulton County. In Williams v. Overstreet, 230 Ga. 112 (195 SE2d 906) (1973), the Supreme Court held that an action of this sort is properly brought in the county in which the stakeholder is subject to suit, where the stakeholder’s response is in the nature of an inter-pleader and where one of the claimants to the fund is also a resident of that county, even if the other claimants reside in different counties. More recently, in Kelly v. C & S Nat. Bank, 160 Ga. App. 405 (1) (287 SE2d 343) (1981), this court held that venue in an action where there is a counterclaim, cross-claim or third-party claim for inter-pleader is proper in any county where at least one of the claimants to the fund resides.

Buffington’s reliance on Currahee Constr. Co. v. Rabun County School Dist., 180 Ga. App. 471 (349 SE2d 487) (1986), for a contrary result is misplaced. In Currahee, the plaintiff sued a construction company and its “builder’s risk” insurance carrier in Rabun County, the situs of the insured property, and sought to bring in the nonresident construction company as a joint obligor under the authority of OCGA § 9-10-31 and Art. VI, Sec. II, Par. IV of the Georgia Constitution. We held that the defendants were not jointly obligated and that the construction company consequently could not be sued in Rabun County because the alleged injuries and causes of action were different, the cause of action against the insurance carrier being in contract and the cause of action against the construction company being in tort. That case has no application to the present case, where venue is based not on joint liability but on the separate legal principles applicable to interpleader actions. Applying the rationale of Williams, supra, and Kelly, supra, we hold that the motion to transfer was properly denied.

2. Buffington contends that the enforceability of any obligation to indemnify Sasser which he may have acquired as a result of the termination agreement was contingent upon the entry of a judgment against Sasser in favor of a third party and that, because no such judgment or settlement was ever obtained against Sasser in the federal action, he (Buffington) is consequently entitled to summary judgment in the present action. This claim is without merit. OCGA § 51-12-32 (c) provides that, “[w]ithout the necessity of being charged by an action or judgment, the right of indemnity, express or implied, from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement of a claim. . . .” Accord Independent Mfg. Co. v. Automotive Prods., 141 Ga. App. 518 (1) (233 SE2d 874) (1977) (permitting a cause of action for indemnity to be maintained prior to judgment); Robert & Co. Assoc. v. Pinkerton & Laws Co., 120 Ga. App. 29, 33 (169 SE2d 360) (1969) (holding that a judgment fixing liability is not an absolute condition precedent to the enforcement of a contract of indemnity). Based on these authorities, we hold that the trial court was correct in ruling that it was not necessary that a prior judgment have been entered against Sasser as a condition precedent to his right to enforce Buffington’s indemnity obligations under the termination agreement. It follows that Buffing-ton’s motion for summary judgment on this basis was properly denied.

3. Buffington asserts, on three separate grounds, that the trial court erred in granting Sasser’s motion for summary judgment. Initially, he submits that there exists a factual dispute as to whether the termination agreement ever became enforceable, due to Sasser’s nonperformance of an alleged obligation under that agreement to effect the transfer of the Milledgeville project subcontract from Dresco Corporation to Buffington and Dresco Mechanical Contractors, Inc. This interpretation of the agreement is, however, contradicted by its clear and unambiguous language, which obligated Buffington, rather than Sasser, to use his best efforts to effect such an assignment of the Milledgeville project subcontract. We find no evidence of any nonperformance on Sasser’s part which would excuse Buffington from the performance of his contractual obligations under the termination agreement.

Buffington secondly asserts the defenses of payment, release, novation, and accord and satisfaction, based on certain language appearing in a settlement agreement executed by the parties to the federal litigation, specifying that any right of recovery Sasser and Buffington might have against each other was to be contingent upon a recovery by the plaintiff in that action. However, that settlement agreement, which has been made a part of the record in the present action, also contains a reservation of rights clause specifying that any existing right of recovery Sasser might have against Buffington was not to be diminished as a result of the agreement.

“There is no better settled rule as to the construction of contracts than that where the construction of any part is involved in doubt, an understanding of its meaning is to be sought in the light afforded by the meaning of all the other parts of the instrument. Even if one part of the contract is somewhat repugnant to the remaining portions, the true meaning of the contract as a whole is to be ascertained and enforced.” Federal Rubber Co. v. King, 12 Ga. App. 261, 263 (76 SE 1083) (1912). See also OCGA § 13-2-2 (4). Construing the two contractual provisions in question as being harmonious rather than repugnant, it is clear that the provision making Sasser’s future right of recovery against Buffington contingent upon a recovery by the plaintiff in the federal litigation applied only to such future claims as Sasser might have against Buffington as the result of the outcome of that action, whereas the reservation of rights provision applied to any existing right of recovery Sasser already had against Buffington at the time the agreement was signed. The claim asserted by Sasser in the present litigation for indemnification of the costs incurred in defending the federal lawsuit obviously was already existing and liquidated at the time the settlement agreement in the federal action was executed, and it was in no way dependent on the validity or future enforceability of any claim asserted by the plaintiff in that action. It follows that the claim asserted by Sasser in the present case was not extinguished or diminished by the settlement agreement.

Decided September 22, 1987

Rehearing denied November 6, 1987

Glenville Haldi, for appellant.

Thomas J. Wingfield III, Herman L. Fussell, John P. Gallagher, for appellee.

Finally, Buffington contends that the indemnity clause contained in the termination agreement contravenes public policy and is unenforceable. In this regard, he relies on OCGA § 13-8-2 (b), which specifies that a provision in a construction contract purporting to indemnify the promisee against damages resulting solely from his own negligence is against public policy. However, the indemnity clause at issue here purports merely to “indemnify and save harmless [Sasser] from any and all liabilities and responsibility arising out of the subcontracts. . . .” It does not expressly apply to damage caused by Sasser’s own negligence, nor is such indemnification sought in the present action.

We must seek to construe the contract so as to uphold it in its totality. See OCGA § 13-2-2 (4). “It is not to be presumed that people intend to violate the law, and the language of their undertakings must, if possible, be so construed as to make the obligation one which the law would recognize as valid.” Equitable Loan &c. Co. v. Waring, 117 Ga. 599 (16) (44 SE 320) (1903). Accord Hartline-Thomas, Inc. v. Pew Constr. Co., 151 Ga. App. 598 (260 SE2d 744) (1979). We thus hold that the trial court acted properly in rejecting Buffington’s public policy attack on the enforceability of the indemnification provision. Having rejected each of the three grounds asserted by Buffing-ton for the reversal of the summary judgment, we accordingly affirm the judgment of the trial court in its entirety.

Judgment affirmed.

Carley, J., concurs. Benham, J., concurs in judgment only as to Division 3 and fully concurs as to Divisions 1 and 2.


author: Sognier, Judge.

text:
    73494.
    MILITARY CIRCLE PET CENTER NO. 94, INC. et al. v. THE STATE.
    (363 SE2d 360)
    Decided November 6, 1987.

      Philip S. Coe, for appellants.

      Patrick H. Head, Solicitor, Barbara M. Lassiter, Melodie Clayton, Assistant Solicitors, for appellee.
   Sognier, Judge.

By opinion dated September 10, 1987, 257 Ga. 388 (360 SE2d 248) (1987), the Supreme Court of Georgia reversed Division 1 (d) of this court’s opinion in the above captioned case. 181 Ga. App. 657 (353 SE2d 555) (1987). Accordingly, so much of our opinion in Division 1 (d) as holds that it was error to deny Docktor Pet’s motion to quash the accusations against it is vacated, and the Supreme Court’s opinion on this issue is made the opinion of this court. Our other holdings in the case remain the same.

Judgment affirmed in part and reversed in part.

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


author: Carley, Judge.

text:
    74742.
    BURTON v. THE STATE.
    (363 SE2d 46)
   Carley, Judge.

Appellant was tried before a jury on two indictments, each of which alleged two counts of violating the Georgia Controlled Substances Act. The trial court denied appellant’s motion for directed verdict and submitted the case to the jury. The jury returned a verdict of guilty as to all four counts and judgment was entered on the verdicts. Appellant’s motion for new trial was denied and he appeals from the judgments of conviction and sentence entered on the guilty verdicts.

1. Appellant enumerates as error the trial court’s failure to direct a verdict of acquittal based upon the principle of equal access. “ ‘Merely finding contraband on premises occupied by defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.’ [Cit.] ‘Presence at the scene of a crime and nothing more will not support a conviction.’ [Cit.]” Blankenship v. State, 135 Ga. App. 482, 483 (218 SE2d 157) (1975). “A finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. [Cit.] This connection can be established by evidence which shows the contraband was discovered on premises occupied by and under the control of the accused with no equal right of access and occupancy in others. [Cit.]” Mitchell v. State, 150 Ga. App. 44, 46-47 (2) (256 SE2d 652) (1979).

There was sufficient evidence to authorize a finding that appellant exercised control over the apartment where the contraband was discovered. There was also evidence that, in the exercise of that control, appellant afforded others brief access to the premises for the purpose of engaging in acts of prostitution. However, a showing that others had access to the premises under appellant’s control will not demand a verdict of not guilty of possession of contraband where the evidence also shows that those others had no equal opportunity to possess the contraband. Here, appellant’s control over the apartment, coupled with evidence of the hiding places and the quantity of the contraband involved, authorized a finding of appellant’s guilt for possession of the contraband and did not demand a not guilty verdict under the principle of equal access. “A motion for directed verdict should be granted ‘[w]here there is no conflict in the evidence, and the evidence introduced, with all reasonable deductions and inferences therefrom, shall demand a verdict of acquittal. . . . [OCGA § 17-9-1]. We cannot say, after reviewing the record, that the evidence in this case ‘demanded’ a verdict of acquittal.” Wallin v. State, 248 Ga. 29, 31 (3) (279 SE2d 687) (1981). After a review of the entire record, we find that a rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Over appellant’s objection that he had not placed his character in issue, the trial court allowed the State to introduce evidence that he had a prior criminal conviction. This ruling is enumerated as error.

“[W]here a defendant admits any prior criminal conduct less than all his criminal offenses, he has put his character in issue ... by attempting to portray his character, albeit bad, as being better than it actually is. Thus, when a defendant admits any prior criminal conduct, the prosecutor .may cross-examine him as to such conduct and may prove other prior convictions.” Phillips v. State, 254 Ga. 370, 372 (329 SE2d 475) (1985). See also Long v. State, 181 Ga. App. 830 (354 SE2d 190) (1987). Appellant testified that he had previously visited the apartment in question but only for the purpose of engaging in sexual intercourse with prostitutes. By so testifying, he admitted that he had engaged in prior criminal conduct, and the State was then entitled to cross-examine him as to such conduct and to prove that he had prior convictions. See Phillips v. State, supra; Long v. State, supra. There was no error.

Decided November 6, 1987.

Rise H. Weathersby, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, John G. Isom, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

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

Judgment affirmed.

Banke, P. J., concurs. Benham, J., concurs in Divisions 1 and 3 and in judgment.