text:
    A91A0433.
    BARBER v. THRELKELD FORD.
    (406 SE2d 249)
   Beasley, Judge.

Barber owned a Ford pickup truck which was destroyed when its engine suddenly caught fire. He had previously experienced problems with the vehicle’s engine. This led to the performance of several repairs to the engine by Threlkeld Ford, which had replaced the engine twice. Barber, alleging negligent operation, negligent repair, and res ipsa loquitur, sued Ford for the loss of the vehicle. The trial court granted summary judgment to Threlkeld Ford.

Defendant’s first interrogatories and requests for admissions went unanswered, so it moved for summary judgment based on the admissions. Plaintiff then filed answers to the interrogatories, a motion to withdraw admissions, and a simple denial of each request for admissions.

In the interrogatories defendant asked plaintiff to “state in detail each negligent act or omission which you contend the defendant, through its agents and employees, committed with regard to the incident which is the subject of this lawsuit.” Plaintiff stated, “I took the vehicle back to the defendant on many occasions and told him it was not running right and that it was using excessive amounts of gas. They replaced the original engine twice and it still did not run right, but every time I took it back they said there was nothing wrong.”

Plaintiff later replied to defendant’s motion for summary judgment by filing a letter report from Herbert Childs to plaintiff and to the insurer of plaintiff’s vehicle, stating: at the insurer’s request he had inspected the vehicle; the area of greatest fire exposure is in the vicinity of the rear of the engine’s left side; this indicates that the fire likely originated in this area, which contains the fuel lines from the tanks; inspection of the remains of the fuel lines indicated no remains of clamping devices were present; the fire is thus indicated to be the result of fuel escaping in the vicinity of the rear left side of the engine; replacement of the engine would require that most, if not all, components related to the engine would need to be transferred to the replacement engines; this in turn would require that the fuel system be disconnected, which provides the opportunity for damage to the clamps and connectors; some of the fuel system clamps are recommended to be replaced each time they are removed; no clamps are listed as repair parts on the service records thus far provided; the cause of the fire is therefore likely related to repairs made by the service facility instead of a defect as manufactured.

At a hearing thereafter, the court orally allowed withdrawal of the admissions, and the parties were given an opportunity to submit supplemental letter briefs with regard to the other aspects of defendant’s motion for summary judgment.

In its order, the court noted that the only support for plaintiff’s allegation that defendant had negligently repaired the truck was the letter from Childs. It ruled that Childs’ letter “is, at best, only a conclusion” and that plaintiff had not offered any sworn testimony from Childs or made any showing that he is an expert in accident investigations, though given an opportunity to do so. It also noted that the last time defendant repaired the truck was approximately two months before the accident. The court rejected plaintiff’s reliance on the doctrine of res ipsa loquitur.

Childs’ letter does not qualify as an affidavit. See Thomasson v. Trust Co. Bank, 149 Ga. App. 556, 557 (254 SE2d 881) (1979). The contents of the letter therefore amount to no more than factual allegations additional to those in the pleadings. However, in ruling on a motion for summary judgment, the court must take into consideration “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. . . .” OCGA § 9-11-56 (c); Crutcher v. Crawford Land Co., 220 Ga. 298, 303 (3) (138 SE2d 580) (1964).

“ ‘The burden of showing the absence of a genuine issue of any material fact rests on the party moving for summary judgment; noj duty devolves upon the opposing party to produce rebuttal evidence unless the movant first makes a prima facie showing of a right to a summary judgment. [Cits.]’ [Cit.]” Lockhart v. Walker, 124 Ga. App. 241 (183 SE2d 503) (1971).

Decided May 28, 1991.

Berlin & Hodges, Robert A. Berlin, for appellant.

Newton, Smith, Durden, Kaufold & McIntyre, Wilson R. Smith, for appellee.

Thus, as was held in Crutcher, where defendant submitted affidavits showing that defendant was not guilty of the acts charged against it, plaintiff could not rest on the allegations of his pleadings but was required to submit counter affidavits or other proof showing that there was an issue for trial. See OCGA § 9-11-56 (e); Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 604 (203 SE2d 173) (1974). But “counter affidavits or proof are required only when movant has offered proof.” Crutcher, supra at 304.

Where defendant introduces no evidence on a factual issue arising from plaintiff’s complaint, the defendant’s motion for summary judgment should not be granted, an evidentiary response by plaintiff is not required until the defendant pierces the allegations of plaintiff’s pleadings. Alexander v. Boston Old Colony Ins. Co., 127 Ga. App. 783, 784-785 (2) (195 SE2d 277) (1972). In order to pierce the allegations of plaintiff’s pleadings and establish an entitlement to summary judgment, the defendant must make an affirmative showing that the undisputed facts would not entitle plaintiff to recover under any discernible circumstances. Lockhart, supra at 241.

Defendant Threlkeld Ford did not pierce the allegations of the pleadings, as by submitting evidence showing the repairs made by it on the truck and conclusively negating “at least one essential element entitling plaintiff to a recovery under every theory fairly drawn from the pleadings and the evidence.” Turner v. Noe, 127 Ga. App. 870, 871 (195 SE2d 463) (1973).

Although the pleadings are not evidence, they must be considered in order to show “the causes alleged in order that by comparison with the evidence it can be determined if the movant should prevail.” Crutcher, supra at 299 (3).

There being genuine issues of material fact for trial, summary judgment was not warranted.

Judgment reversed.

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


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A91A0489.
    LAWSON v. THE STATE.
    (406 SE2d 130)
   Banke, Presiding Judge.

The appellant was convicted of voluntary manslaughter. In this ippeal from the denial "of his motion for new trial, he contends that the trial court erred in failing to give his requested charge on involuntary manslaughter as a lesser included offense. See generally OCGA § 16-5-3 (a).

The decedent was shot in the chest following an all-day “drinking binge” with the appellant and a third individual named Leroy Norton. At the time of the shooting, the appellant, Norton and the victim were alone in a mobile home belonging to a mutual friend. Norton pled guilty to concealing the death and to possession of a firearm by a convicted felon. He testified at trial that he had fallen asleep and had no recollection of the shooting but that after he awoke the appellant told him that the victim had shot himself.

The appellant executed a written waiver of his Miranda rights following his arrest, and during a tape-recorded interview told police investigators that the decedent had threatened to shoot himself and that he (the appellant) had helped him by loading a rifle and holding it in such a manner that the victim was able to reach up and pull the trigger. He was then informed that this account of the shooting was inconsistent with other information known to the officers, whereupon he changed his story, telling the officers that he had pointed the rifle at the victim and told him “he would help him die” after the latter threatened to kill himself, at which point the rifle “just went off.” At trial, the appellant denied any involvement whatever in the shooting, testifying that Norton had given the rifle to the victim and that the victim had then shot himself. Held:

The appellant contends that the evidence, in the form of his prior statements, required a jury instruction on involuntary manslaughter in the commission of the misdemeanor offense of pointing a gun at another. See OCGA §§ 16-5-3 (a); 16-11-102. However, the appellant’s testimony at trial was clearly inconsistent with such a charge, since he repudiated these prior statements and denied any involvement in the shooting. Furthermore, his pretrial statement that the rifle “just went ¡ off” as he was pointing it at the victim must be viewed in the context of his further statement that he had just finished telling the victim that he was “going to help him die.” “[I]f the pointing of the firearm] placed the victim in reasonable apprehension of immediate violent injury, the felony of aggravated assault has occurred.” Rhodes v. State, 257 Ga. 368, 370 (359 SE2d 670) (1987). Under the circumstances, thel trial court properly refused to charge on involuntary manslaughter as I a lesser included offense. See generally Wigfall v. State, 257 Ga. 585 (3) (361 SE2d 376) (1987). Compare Kerbo v. State, 230 Ga. 241 (196 SE2d 424) (1973); Motes v. State, 192 Ga. App. 302 (2) (384 SE2d 463) (1989).

Judgment affirmed.

Carley and Beasley, JJ., concur.

Decided May 28, 1991.

Carlton C. Carter, for appellant.

Thomas J. Charron, District Attorney, William M. Clark, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appel-lee.


author: Sognier, Chief Judge.

text:
    A91A0534.
    SALES v. THE STATE.
    (406 SE2d 131)
   Sognier, Chief Judge.

Lowery Sales was convicted of child molestation, statutory rape, incest, and rape of his five-year-old daughter and sentenced to 20 years in prison. He appeals from the denial of his motion for new trial.

1. Appellant first contends the trial court erred by qualifying State’s witness Nancy Aldridge, director of a child abuse treatment center, as an expert in psychotherapy. At trial, Aldridge testified that she had an undergraduate degree in psychology and a master’s degree in social work (which included psychotherapy courses), and had taken extensive continuing education courses in child sexual abuse and related fields. She explained that earlier in her career she practiced for eight years as a psychiatric nurse, and that she had counseled hundreds of sexually abused children since 1981. She stated she is a licensed clinical social worker and a practicing psychotherapist. The State then requested she be qualified as a psychotherapist and child abuse expert. Appellant objected to the former qualification on the ground that there is no state licensing procedure for psychotherapists.

“An expert is one whose habits and profession endow him [or her] with a peculiar skill in forming an opinion on the subject matter in inquiry. [Cit.]” Morrison v. State, 147 Ga. App. 410, 411 (1) (249 SE2d 131) (1978). This special skill or knowledge may be derived from experience as well as from formal education. Bowden v. State, 239 Ga. 821, 826 (3) (238 SE2d 905) (1977). Contrary to appellant’s argument, we regularly authorize expert certification of witnesses whose expertise lies in fields for which there is no state licensing procedure. E.g., Hanson v. State, 169 Ga. App. 765, 767 (4) (315 SE2d 278) (1984) (fingerprinting); Epps v. State, 169 Ga. App. 157, 159 (4) (312 SE2d 146) (1983) (automobile accident investigation); Baker v. State, 156 Ga. App. 283-284 (2) (274 SE2d 678) (1980) (forged handwriting). The issue is whether the witness has developed specialized knowledge, not whether the State certifies or licenses the specialty. Appellant’s questions concerning the scope of Aldridge’s formal education address the credibility of her testimony, not its admissibility. See Epps, supra at 160 (4). Aldridge’s testimony concerning her education and experience was sufficient to authorize the trial court’s discretion in allowing her to testify as an expert in psychotherapy and the diagnosis and treatment of child sexual abuse. Westbrook v. State, 186 Ga. App. 493, 494-495 (2) (a) (1) (368 SE2d 131) (1988). Accordingly, we find no error.

2. Appellant also enumerates as error the trial court’s grant of the State’s motion in limine to preclude introduction of evidence that the victim and her mother, who had never lived with appellant, did reside for some period of time with an uncle who had been charged by his girl friend with molestation of her minor daughter. Appellant contends that once Aldridge testified concerning the child sexual abuse accommodation syndrome and opined that the victim exhibited characteristics of the syndrome, under the authority of Hall v. State, 196 Ga. App. 523, 524-525 (2) (396 SE2d 271) (1990), he should have been permitted to introduce evidence that the victim resided with a man who had been charged with molesting another child.

The State’s motion in limine to preclude introduction of any evidence concerning the presence of the uncle or the charges pending against him was considered by the trial court prior to the beginning of the trial. In response to the motion, appellant argued that the evidence was necessary to show the motive of the victim’s mother in charging that the victim had been abused and in seeking treatment for her. The trial court rejected this rationale and granted the State’s motion, but stated he would reconsider the issue if the evidence later became relevant to some issue raised by the trial testimony. Our review of the transcript discloses appellant never endeavored to introduce the challenged testimony after this ruling. Appellant now argues on appeal that evidence concerning the uncle’s presence in the victim’s home was relevant to show another possible reason why the victim exhibited characteristics of the sexual abuse syndrome. However, he never sought to introduce the evidence for that purpose at trial and thus never invoked a ruling from the lower court on this argument. “The trial court was not asked to rule on (this) ground and thus there is nothing to review. It is well established that appellate courts may not consider objections to evidence not raised at trial.” (Citations and punctuation omitted.) Riley v. State, 196 Ga. App. 148, 149 (1) (395 SE2d 394) (1990). Moreover, unlike the circumstances in Hall, supra, in the case at bar there was no evidence that the victim had been molested by anyone else, and appellant does not suggest that he could have proffered evidence that the victim was molested by the uncle. Thus, the purpose for which we held in Hall that I evidence of other molestations was admissible is not present here, andl accordingly we hold the trial court did not err by granting the State’s I motion to exclude the testimony.

Decided May 28, 1991.

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Anne G. Maseth, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Andrews, Judge.

text:
    A91A0623.
    DOBBS v. THE STATE.
    (406 SE2d 252)
   Andrews, Judge.

Dobbs was convicted of two counts of armed robbery, and appeals the judgment entered on the conviction.

1. In his first enumeration of error, Dobbs claims the trial court erred by refusing to sever the two armed robbery counts. Severance is required if offenses are joined solely because they are similar in nature. Cooper v. State, 253 Ga. 736, 737 (325 SE2d 137) (1985); Dingler v. State, 233 Ga. 462 (211 SE2d 752) (1975); Wilson v. State, 188 Ga. App. 779, 780 (374 SE2d 325) (1988). Where, however, the similarity of the offenses reaches the level of a pattern which shows a common scheme, plan or a modus operandi so strikingly similar “that the totality of the facts unerringly demonstrate and designate the defendant as the common perpetrator, the offenses may be joined — subject to the right of the defendant to a severance in the interests of justice. (Citations omitted.) Davis v. State, 159 Ga. App. 356, 357 (283 SE2d 286) (1981); Wilson, supra at 780. In such cases, severance lies within the discretion of the court. Fluellen v. State, 163 Ga. App. 425 (294 SE2d 653) (1982).

In the instant case, the armed robberies involved two convenience stores and took place less than one month apart. In each robbery the perpetrator, wearing sunglasses and a hat, approached the cashier, who was alone in the store, and initiated a cash transaction before pulling his gun and reaching across the counter to grab the money. Both cashiers expressed surprise at the well-mannered demeanor and speech of the perpetrator, and both described the handgun used as a type of long-barrelled machine gun. Both cashiers also identified the defendant as the armed robber. We find no abuse of discretion in the trial court’s denial of Dobbs’ motion to sever the offenses.

2. In enumeration number two, Dobbs argues the trial court erred in failing to grant his motion for a directed verdict on both counts because of a fatal variance between the indictment and the evidence adduced at trial.

Under OCGA § 16-8-41 (a), “A person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon. . . .” (Emphasis supplied.) With respect to both counts, the present indictment charges in part that Dobbs did, “with intent to commit theft, take property of another [the convenience stores] from the person and the immediate presence [of the store cashiers] . . .” (Emphasis supplied.) Since the indictment uses the conjunction “and” rather than “or,” Dobbs contends the State must prove he took property from the person and the immediate presence of another. He argues that while the evidence at trial may show money was taken from the store cash register in the immediate presence of the cashier, there was no evidence he took any property from the person of anyone at either robbery. Therefore, he claims the State failed to prove the offense occurred in the manner stated in the indictment.

Even if we accept the defendant’s contention that a variance occurred, it was not fatal. A variance between the allegations and the proof is so material as to be fatal only when it deprives the accused of “ ‘obvious requirements (1) that [he] shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.’ ” (Citations omitted.) De Palma v. State, 225 Ga. 465, 469-470 (169 SE2d 801) (1969). The defendant was charged with using an offensive weapon to take the property of the two convenience stores. The robberies were accomplished when the store’s employees, who were entrusted with possession of the store’s property, were held at gunpoint while the property was taken. Even if this was not technically a taking from the employees’ persons, any resulting variance did not deprive the defendant of his substantial rights. Partridge v. State, 187 Ga. App. 325, 327 (370 SE2d 173) (1988). The trial court did not err in denying the defendant’s motion for a directed verdict.

3. In his third enumeration, Dobbs claims the trial court erred by denying his motion in limine to exclude evidence of other robberies attributed to him. Generally, evidence of other criminal acts by the defendant is inadmissible because it tends to place the defendant’s character into evidence. State v. Johnson, 246 Ga. 654 (272 SE2d 321) (1980). However, if the defendant is shown as the perpetrator of an extrinsic criminal act, which is sufficiently similar to the offense at issue so that proof of the extrinsic act tends to prove the offense at issue, then the extrinsic act is admissible if its relevance to show identity, motive, plan, scheme, bent of mind, or course of conduct, outweighs its prejudicial impact. Flournoy v. State, 186 Ga. App. 774 (368 SE2d 538) (1988); Johnson, supra. Admissibility of such evidence is a matter within the discretion of the court. Brown v. State, 197 Ga. App. 155, 157 (398 SE2d 34) (1990).

Dobbs was charged in the instant case with two armed robberies occurring in Carroll County on December 31, 1989, and January 23, 1990. The extrinsic criminal acts introduced by the state were armed robberies occurring in Polk County on January 12, 1990, and in Haralson County on January 5, 1990. Dobbs was identified by witnesses to both extrinsic robberies as the perpetrator, and although the strength of these eyewitness identifications varied from definite to probable, there is no requirement that such proof be made beyond a reasonable doubt. Williams v. State, 251 Ga. 749, 784 (312 SE2d 40) (1983). Dobbs’ identity as the perpetrator was sufficiently established to satisfy this requirement for admissibility.

Although the two extrinsic armed robberies were not identical to the offenses at issue, they were sufficiently similar to authorize the trial court to admit the evidence to show identity, motive, plan, scheme, bent of mind, or course of conduct. All four armed robberies occurred at convenience stores within less than a month. In all instances, the robber wore a hat; wore sunglasses (in three of the four robberies); used a handgun similarly identified, not as a typical handgun, but as a long-barrelled weapon; pulled the gun on the cashier after initiating a cash transaction requiring the cashier to use the cash register; reached across the counter for the cash; and fled on foot. On these facts, we find no abuse of discretion in admitting the evidence and denying the defendant’s motion in limine. Durham v. State, 181 Ga. App. 155, 156-157 (351 SE2d 683) (1986).

4. Fourthly, Dobbs asserts the verdict was contrary to the weight of the evidence. He argues that the testimony of eyewitnesses that he committed the armed robberies at issue was not reliable and should not have been believed. Determining the credibility of witnesses and resolving conflicts goes to the weight of the evidence and is for the jury’s consideration. Holcomb v. State, 198 Ga. App. 547 (402 SE2d 520) (1991). This court determines only the legal sufficiency of the evidence. Id. Viewing the evidence in a light most favorable to the verdict, the evidence was sufficient for a rational trier of fact to find the defendant guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

I 5. In enumeration of error five, Dobbs contends that he was de[nied effective assistance of counsel at trial because counsel failed to [object to improper remarks and misstatements of fact by the prosecutor during closing argument. The claim of ineffective assistance was ot raised in the trial court, and is pursued for the first time on appeal. Where appropriate, claims for ineffective assistance on counsel raised for the first time on appeal are remanded to the trial court for an evidentiary hearing. See Smith v. State, 255 Ga. 654 (341 SE2d 5) (1986). However, in this case the defendant’s appellate counsel was also his trial counsel. “[D]efense counsel is precluded from presenting a claim of ineffective assistance of counsel concerning a trial in which he participated due to the ethical prohibition against a lawyer acting as a witness.” McGuire v. State, 185 Ga. App. 233, 238 (363 SE2d 850) (1987). See Castell v. Kemp, 254 Ga. 556 (331 SE2d 528) (1985). Although the defendant’s right to raise ineffective assistance of counsel is not waived under these circumstances, we do not address it because the issue is not properly before this court for consideration. McGuire, supra at 238; see Nixon v. State, 255 Ga. 656, 657, fn. 1. (340 SE2d 7) (1986).

Decided May 28, 1991.

Michael S. Katz, for appellant.

William G. Hamrick, Jr., District Attorney, Agnes McCabe, Assistant District Attorney, for appellee.

Judgment affirmed. Sognier,

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


author: Beasley, Judge.

text:
    A91A0632.
    KING v. JAMES KING CLEANERS & LAUNDRY et al.
    (405 SE2d 909)
   Beasley, Judge.

James King, owner and sole proprietor of James King Cleaners & Laundry, was robbed and murdered on December 15, 1988, while taking a bank deposit to his van in the parking lot of his business. His widow filed a workers’ compensation claim asserting that he was an employee of the business. Cincinnati Insurance Company, the workers’ compensation carrier, controverted the claim. The ALJ and the| board concluded that King was not covered because he was not a: employee. The award was affirmed by the superior court and claim ant’s application for discretionary review was granted.

Our consideration concerns whether under the facts presente King was an employee as a matter of law. The evidence is construe^ in the light most favorable to the prevailing party. Home Idem. Co. v Swindle, 146 Ga. App. 520 (1) (246 SE2d 507) (1978).

OCGA § 34-9-2.2 provides that a sole proprietor of a businesi may elect to be included as an employee under the workers’ compen sation coverage of the business (1) if he is actively engaged in the operation of the business, and (2) if the insurer is notified of his election to be included. Cincinnati first issued a workers’ compensation policy to King Cleaners in 1987, and from January 1, 1987, to January 1, 1988, King was not included. For the following crucial year there is no evidence that King elected to be included under employee coverage or that he notified Cincinnati as required by the Code.

The policy was listed in the name of King Cleaners and King “Individually.” There was also a policy provision which stated: “You are insured if you are an employer named in item 1 of the Information page.” Contrary to claimant’s assertions this does not establish whether King was insured as an employee but only that he was insured as an employer. See Scoggins v. Aetna Cas. &c. Co., 139 Ga. App. 805, 808 (229 SE2d 683) (1976). There was also evidence that the agency which handled the insurance included the sole proprietor as an insured employee as a matter of course. However, no premium based on his salary was charged for 1987. This and the lack of any evidence that King elected to be so insured or notified Cincinnati of his decision is fatal to the contention that a finding for claimant of election was demanded as a matter of law.

This leaves the subordinate issue of whether Cincinnati was es-topped from contesting King’s right to be covered by issuing a policy of compensation insurance. See OCGA § 34-9-124 (b). In January 1989 an independent agency conducted an audit of King Cleaners for Cincinnati to determine what amount the actual premium for 1988 should have been, based upon the total salaries of King Cleaners’ employees. At that time Turner, the accountant for King Cleaners and administrator of the estate of King, informed the auditor that King should be included as an employee in the total compiled salary. The claim for death benefits had already been controverted. Based upon a formula figure for King’s salary plus the amount the total salary figure exceeded the estimated amount ($130,000), the premium was recomputed. This resulted in Cincinnati billing the business an additional $750 in premium for 1988. A subsequent audit revealed that King’s salary was incorrectly included in the total figure. After its deduction a refund of $420 was returned to King Cleaners.

Claimant contends that, under OCGA § 34-9-124, Cincinnati’s actions preclude the defense that King was not an employee. However, Scoggins, supra at 807, held that this Code section applies only to “employees ordinarily exempt from its provisions.” Thus, it could not apply to an employer. Second, Cincinnati did not issue a policy of compensation covering King during 1988, the time when he died. Reliance cannot be retroactively acquired to compel the application of the Code section. The board found as a matter of fact that there was no waiver of its defense by Cincinnati, and under the any evidence rule we must accept its judgment.

Decided May 28, 1991.

E. Neal Little, Jr., for appellant.

Gene F. Cantrell, for appellees.

Judgment affirmed.

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


text:
    A91A0646.
    LEWALLEN v. THE STATE.
    (406 SE2d 255)
   Sognier, Chief Judge.

Anthony Michael Lewallen was convicted in Stephens County of two counts of child molestation and one count of aggravated child molestation arising from incidents involving his two stepdaughters, and he appeals.

1. Appellant first contends the State failed to prove venue in Stephens County for counts two and three, which charged appellant with two acts of molestation perpetrated upon T. W., the younger victim, because, he contends, the State did not establish whether the acts occurred in Georgia or Florida. The indictment charged appellant with committing the acts of molestation in November 1989. The evidence adduced at trial established that appellant, the victims, and the victims’ mother resided in several locations within Stephens County except for a six-month period they spent in Florida during 1987. L. W., who was eight years old at the time of trial, testified that she saw appellant molest T. W. “downstairs” in their home, and evidence was adduced that the family lived in a two-story house in Stephens County in November 1989. Dee Ramsay, the social worker who investigated the allegations of sexual abuse and questioned the victims, testified that L. W. stated she observed appellant molest her younger sister while in their Stephens County apartment. Conversely, T. W., who was six years old at trial, testified that appellant molested her| while the family lived in Florida.

Venue may be proved by circumstantial or direct evidence. Johns v. State, 239 Ga. 681, 682 (1) (238 SE2d 372) (1977). “The question of| venue is to be decided by the jury and its decision as to venue will notl be set aside where there is any evidence to support it.” Id.; see White v. State, 193 Ga. App. 428, 429 (1) (387 SE2d 921) (1989). Given thel testimony of L. W. and Ramsay, and considering the tender age of T.[ W., we hold there was evidence to support the jury’s finding that venue properly lay in Stephens County, and accordingly we affirm the ruling below. See White, supra.

2. Appellant next maintains the trial court committed reversible error by improperly commenting on the testimony of L. W. While OCGA § 17-8-57 does compel reversal of the lower court judgment when the trial judge “express[es] or intimate[s] his opinion as to what has or has not been proved or as to the guilt of the accused,” we find no such error was committed in this case. During his qualification of the witness, a child under the age of 14, the trial judge asked her whether she understood she was required to tell the truth and that she would be punished if she failed to do so. When the prosecutor began to ask specific questions concerning the alleged acts of molestation, L. W. hesitated over naming specific body parts and sexual acts. The court then intervened and stated, “you just go ahead and tell it. You won’t be punished for telling what the truth is. You just go ahead and tell whatever . . . the answer to the question is.”

Contrary to appellant’s characterization, we do not find this statement to constitute an improper comment on appellant’s guilt within the meaning of OCGA § 17-8-57 because the remark dealt with future testimony, not with statements already made. Hamilton v. State, 91 Ga. App. 299, 300 (3) (85 SE2d 557) (1954). The judge did not indicate that he believed the witness’s version of the events was the true and correct one, but instead merely encouraged her to state the truth in answer to the question, whatever that response might be. Thus, this enumeration is without merit. See id.; accord Millwood v. State, 166 Ga. App. 292, 293 (4) (304 SE2d 103) (1983).

3. Appellant next enumerates as error the trial court’s rulings sustaining the State’s objections to questions he posed to Dee Ramsay on cross-examination.

(a) Appellant first contends the court erred by precluding him from questioning Ramsay concerning allegations that appellant’s wife’s brother molested the victims. Contrary to appellant’s argument on appeal, the record reveals that he was not seeking to proffer evidence of past false accusations made by the victims as contemplated in Smith v. State, 259 Ga. 135, 136-137 (1) (377 SE2d 158) (1989). Nor was he seeking to introduce this evidence to show that the uncle, pot appellant, committed the charged acts. Burton v. State, 191 Ga. App. 822 (2) (383 SE2d 187) (1989). Moreover, when the prosecutor [objected to this line of questioning and then expanded his objection [to a motion in limine to prevent appellant from raising any evidence concerning the actions of the uncle and any allegations against him, Appellant’s counsel responded that he had no objection to the motion. Thus, appellant waived his objection below and cannot now assert it An appeal. See Hight v. State, 195 Ga. App. 727, 730 (6) (394 SE2d E36) (1990). Accordingly, we find no error in the exclusion of this testimony.

(b) Ramsay testified that she was aware appellant was accused of molesting the victims while the family lived in Florida. When appellant’s counsel asked her on cross-examination whether she knew the outcome of the investigation, the prosecutor objected on grounds of relevance and hearsay, and the court sustained the objection. Since testimony concerning prior acts of molestation by appellant was admitted as evidence of appellant’s bent of mind and course of conduct, see Colquitt v. State, 196 Ga. App. 817, 818 (2) (397 SE2d 164) (1990), appellant certainly was entitled to adduce evidence concerning the outcome of the investigation of such charges. It appears from the record that the court’s ruling on the hearsay objection may have been premature because counsel was not permitted to establish whether Ramsay had personal knowledge of the information sought. However, this ruling, if error, was harmless because both appellant and his wife subsequently testified at length concerning the Florida allegations and the results of the investigation. Accord Boyd v. State, 168 Ga. App. 246, 251 (7) (308 SE2d 626) (1983).

Decided May 28, 1991.

Neil A. Smith, for appellant.

Michael H. Crawford, District Attorney, E. Jay McCollum, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A91A0694.
    CAMERON v. MOORE.
    (406 SE2d 133)
   Beasley, Judge.

Plaintiff Cameron suffered personal injuries when the truck in which she was riding and which was being driven by defendant Moore collided with an automobile driven by defendant Freeman. Cameronj alleged in her suit that both Moore and Freeman were negligent. After answers were filed and discovery accomplished, defendant Moore) moved for summary judgment. His motion was granted by the tria court which ruled that Cameron made factual admissions in the rec-| ord precluding her from recovering from Moore. The court relied o: evidence that according to Cameron, Freeman ran into Moore’s vehicle and “caused the accident”; that Cameron testified that Moore die not act or appear to have been drinking; that he was not driving fast was not swerving and was not reckless. The court concluded, basec upon Cameron’s testimony that “Moore was not negligent,” that nc genuine issues of material fact existed.

Cameron contends that the statements she made on depositior did not constitute solemn admissions in judicio which were binding upon her and that she alleged and proved that Moore was driving under the influence of alcohol so that the matter of his negligence was at issue and could not be determined summarily.

1. We first dispose of Moore’s contention that because only punitive damages were sought as to him, the complaint was properly dismissed on summary judgment regardless of any other issue. It is true that an “award of punitive damages . . ., in the absence of any finding of actual damages, is improper as a matter of law.” Wade v. Culpepper, 158 Ga. App. 303, 305 (279 SE2d 748) (1985). By amendment Cameron alleged that Moore’s acts caused the collision and prayed for special damages against him. The complaint as amended sought more than punitive damages and the contention fails.

2. An essential element to warrant recovery for negligence is causation, that is, was there a legally attributable causal connection between the conduct and the resulting injury. Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982); Anneewakee v. Hall, 196 Ga. App. 365, 367 (1) (396 SE2d 9) (1990). “[W]here the trial court can accurately conclude upon plain, palpable and indisputable evidence that there was no negligence attributable to the defendant,” summary judgment may be granted to defendant. Woolbright v. Six Flags Over Ga., 172 Ga. App. 41 (1) (321 SE2d 787) (1984). Otherwise it is a jury question. Atlanta Ob. & Gyn. v. Coleman, 260 Ga. 569, 570 (398 SE2d 16) (1990).

At issue is whether Cameron conclusively admitted by her deposition testimony that Moore did not cause the wreck. There was evidence that Moore had four beers before driving and that he subsequently was tested with an alcohol concentration of .11 grams. Cameron related that prior to the incident she did not know he had been drinking; that he was not driving too fast or in a reckless manner and was not swerving or manifesting that he had been drinking. She stated that she did not see the other vehicle until “it just dashed into us” and that just before impact Moore shouted that the driver of the other vehicle was getting on his side and said “you too old to be driving a car.”

The spotlighted testimony was given in response to the question: “Do you think Mr. Moore’s drinking caused the accident?” Cameron responded: “The lady caused it.” Next followed: “Q. What do you think caused the accident? A. Well, when this lady run into us and hit us, that’s what caused the accident. Q. And by this lady you mean Ms. Freeman? A. Yes. Ms. Freeman run into us and hit us. That’s what caused the accident. . . . Q. I’m asking when you were sitting there driving down the road do you think Mr. Moore did anything that caused this accident? A. I do not.”

Freeman testified on deposition that Moore’s vehicle swerved into her lane of travel and that she was unable to avoid it. Moore in his deposition stated that Freeman’s car swerved into his lane. The legal question is, is there a factual matter for jury resolution?

“A solemn admission in judicio is conclusive as a matter of law on the matter stated and cannot be contradicted by other evidence unless it is withdrawn or amended on formal motion.” Piedmont Aviation v. Washington, 181 Ga. App. 730, 731 (353 SE2d 847) (1987). This court has found a party to be bound by his unwithdrawn testimonial admissions in Spector v. Model Constr. Co., 95 Ga. App. 14, 17 (96 SE2d 900) (1957) (physical precedent), and Chew Constr. Co. v. Oconee Rest Home, 149 Ga. App. 677, 678 (2) (255 SE2d 133) (1979). There was no showing that there was conflicting evidence in those cases. In Sutherland v. Woodring, 103 Ga. App. 205, 214 (118 SE2d 846) (1961), the plaintiff was held not to be bound by testimonial admissions where her testimony was not the sole testimony and the evidence authorized a finding in her favor. It is thus problematic whether the plaintiff’s deposition testimony constituted admissions in judicio.

What is decisive, however, is the character of her testimony. In order for a judicial admission to be binding it must be one of fact and not a conclusion of law or an expression of opinion. Southern Business Machines v. Norwest Fin. Leasing, 194 Ga. App. 253, 257 (2) (390 SE2d 402) (1990); Howell Mill/Collier Assoc. v. Penny packer’s, 194 Ga. App. 169, 172 (390 SE2d 257) (1990); 31A CJS 765, Evidence § 299. See McCormick on Evidence (3d ed.), § 266, p. 785. “ ‘[A]n admission in judicio applies only to the admission of fact and does not apply where the admission is merely the opinion or conclusion of the pleader as to law or fact.’ ” Howell Mill/Collier Assoc., supra at 172.

Cameron was giving her opinion as to the cause of the collision. Although Moore urges the trial court’s view that Cameron was stating a fact, it was not fact but rather her opinion of who was responsible for the collision and her resultant injuries, based upon her perspective of the event.

Opinion evidence by a non-expert witness is admissible where testimony is given as to the facts upon which the opinion is based. Galloway v. Banks County, 139 Ga. App. 649, 651 (229 SE2d 127) (1976); United Sec. Agency v. Sims, 161 Ga. App. 167 (288 SE2d 117) (1982). Such opinion testimony does not establish any fact, as a matter of law, and a jury is not bound by it. DOT v. Driggers, 150 Ga. App. 270 (257 SE2d 294) (1979). Because a jury is not governed by opinion testimony, a summary judgment is not demanded by it. Harrison v. Tuggle, 225 Ga. 211, 213 (2) (167 SE2d 395) (1969); Ginn v. Morgan, 225 Ga. 192, 193 (167 SE2d 393) (1969).

Freeman testified that Moore swerved into her lane. This contra-dieted the evidence that Freeman’s actions were the cause. The proof offered on summary judgment did not establish that Moore should be exonerated as a matter of law. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986).

Decided May 28, 1991.

Daniel S. Zevin, June P. Sellers, for appellant.

Decker & Hallman, Richard P. Decker, W. Winston Briggs, for appellee.

Judgment reversed.

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


text:
    A91A0701.
    KENNEDY v. THE STATE.
    (406 SE2d 136)
   Banke, Presiding Judge.

The appellant was convicted of armed robbery and aggravated assault. He brings this appeal from the denial of his motion for new trial.

As the victim was walking down a street in Albany, Georgia, he heard the appellant, whom he knew, calling to him. He responded by walking over to the appellant, at which point the latter grabbed him by the arm and dragged him between two vacant houses while holding a pistol to his face and demanding his money. When he initially refused to comply, the appellant hit him in the face. The victim then relinquished his money ($63), whereupon the appellant hit him in the face with the butt of the pistol. The victim immediately reported the incident to a friend. He was then treated at a hospital, at which time the attack was reported to the police. The victim subsequently identified the appellant from a book of mug shots. A warrant was issued for the appellant’s arrest; and when he was located and taken into custody at a local shopping center five days later, he was armed with a loaded .38-mm revolver and resisted arrest. Held:

1. The appellant contends that the trial court erred in admitting into evidence the weapon and ammunition found in his possession at the time of his arrest, as well as testimony of the arresting officers concerning the circumstances surrounding the arrest. This contention is without merit. “ ‘It is well settled that all of the circumstances connected with an accused’s arrest, including any items taken from his person, are admissible as evidence at trial. . . . (Cits.)’ [Cit.]” Shaw v. State, 179 Ga. App. 807, 809 (3) (348 SE2d 132) (1986). Furthermore, where “ ‘it appears without dispute that the crime was committed with a pistol, ... it would make no material difference whether or not the pistol found (when appellant was arrested) was the particular gun with which the crime was committed. . . .’ [Cit.]” Holloway v. State, 190 Ga. App. 528, 530 (3) (379 SE2d 542) (1989).

Decided May 28, 1991.

Langley & Lee, C. Richard Langley, Donald W. Lee, for appel-1 lant.

Britt R. Priddy, District Attorney, Henry O. Jones III, Gregory | W. Edwards, Assistant District Attorneys, for appellee.

2. The appellant contends that the trial court erred in refusing to declare a mistrial based on the following comments made by the state’s attorney during closing argument: “[The victim] identified [the appellant] as having taken his money at gun point and as having struck him in the face with the gun. Those are the facts. I told you in the beginning that I would prove these things to you. There has been no other evidence presented to you other than the evidence that the state has brought. They have not brought any evidence to rebut anything that the state has had —.”

This enumeration of error is also without merit. “Though the prosecutor may not comment on a defendant’s failure to testify, ‘ “ ‘(i)t is not error, nor is it improper for the prosecutor to reflect upon the failure of the defense to present any evidence to rebut the proof adduced by the state.” [Cit.]’ [Cit.]” Smith v. State, 245 Ga. 205, 207 (4) (264 SE2d 15) (1980). See also Turner v. State, 258 Ga. 97 (4) (365 SE2d 822) (1988); Ranger v. State, 249 Ga. 315 (290 SE2d 63) (1982).

3. The appellant contends that the armed robbery and aggravated assault convictions were based on the same evidence and that the trial court accordingly erred in entering two separate sentences. “Offenses merge as a matter of fact pursuant to OCGA § 16-1-6 (1) if one of them is established by proof of the same or less than all the facts required to prove the other.” Young v. State, 177 Ga. App. 756, 757 (2) (341 SE2d 286) (1986). The jury was authorized to conclude from the evidence that following the commission of the armed robbery, the appellant had employed additional, gratuitous violence against the victim by striking him and lacerating his face with the butt of the pistol. The evidence, construed in the light most favorable to the verdict, was amply sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of both offenses. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley and Beasley, JJ., concur.


text:
    A91A0071.
    KIRK et al. v. ASHLEY.
    (406 SE2d 82)
   Andrews, Judge.

The Kirks appeal from the grant of defendant’s motion for summary judgment in their medical malpractice action against Dr. Ashley. In the complaint’s only specification of negligence, Thomas Kirk and his wife, Modena, claimed that Dr. Ashley, while performing surgery on Mr. Kirk for a hiatal hernia, lacerated his liver and severed his hepatic vein.

The evidence established that the tears during Mr. Kirk’s operation at Walton County Hospital resulted in significant bleeding and Dr. Ashley halted the operation with respect to the hiatal hernia, gave him blood and transferred him to Emory University Hospital for repair of the tears. The Kirks claimed that because of Dr. Ashley’s negligence, Mr. Kirk was forced to undergo subsequent hospitalizations and operations.

In support of her motion for summary judgment, Dr. Ashley submitted her affidavit which outlined her professional background, described the surgery on Mr. Kirk, and explained that the tears he suffered were a common complication of hiatal hernia surgery. She concluded that the tears were not caused by her negligence and that she had “exercised at least that degree of skill, care and diligence as would ordinarily be employed by members of the profession generally under similar conditions and like circumstances. . . .”

In response to the motion, the Kirks submitted Dr. Joseph Rubin’s affidavit stating that he had reviewed the certified medical records of Dr. Ashley, Walton and Emory Hospitals, and that Dr. Ashley failed to use the care and skill which is employed by the profession generally. More specifically, Dr. Rubin opined that Dr. Ashley was negligent in failing to have Mr. Kirk’s blood typed and cross-matched “in advance,” and in not having the “ability” to repair the lacerated liver and hepatic vein once the surgical complication developed.

The trial court found that since Dr. Rubin’s affidavit did not address the specific allegation of negligence in the complaint (e.g., the actual tear to the liver and vein), there was no evidence to support it. The court gave the Kirks an additional 15 days within which to “set forth the applicable specifications of negligence” and amend the deficient complaint. Thereafter, the Kirks filed an amended complaint to which they attached Dr. Rubin’s affidavit and alleged that Dr. Ashley had breached the standard of care as set forth therein.

After the filing of the amended complaint, Dr. Ashley submitted a second affidavit in which she addressed the propriety of her actions after the surgery complications arose.

1. Mrs. Kirk enumerates as error the trial court’s grant of summary judgment regarding the allegation that Dr. Ashley negligently lacerated Mr. Kirk’s liver and hepatic vein.

To avoid summary judgment a plaintiff in a malpractice action must counter a defendant’s expert affidavit with a contrary expert opinion. See McDaniel v. Hendrix, 260 Ga. 857 (401 SE2d 260) (1991); Howard v. Walker, 242 Ga. 406, 408 (249 SE2d 45) (1978). Here, there is no evidence to contradict Dr. Ashley’s statements that the tears to the liver and vein were not the result of negligence, since Dr. Rubin’s affidavit does not address that point. Therefore, there is no genuine issue to be tried to a jury and the trial court’s grant of summary judgment as to that contention is affirmed.

2. Mrs. Kirk asserts that the trial court erred in excluding from its consideration the paragraph of Dr. Rubin’s affidavit, which stated: “In my opinion, as a direct and proximate result of Dr. Julia V. Ashley’s negligence, Thomas Kirk almost died, underwent two laparotomies with associated significant morbidity, experienced unnecessary pain and suffering, and incurred unwarranted medical expenses.” The trial court decided to strike the paragraph since it was conclusory and did not reference the specific records upon which the opinion was based.

The trial court applied an overly strict standard in determining that the inadequacies of this paragraph necessitated its exclusion from evidence. Although it is true that a countering expert must base his opinion upon medical records, or upon his own personal knowledge, Loving v. Nash, 182 Ga. App. 253 (355 SE2d 448) (1987); Hall v. Okehi, 194 Ga. App. 721 (391 SE2d 787) (1990), this does not mean that each paragraph must reference the records upon which the expert relies. Here, it was adequate that Dr. Rubin identified in one paragraph of the affidavit the records he had reviewed, which included records regarding Mr. Kirk’s treatment subsequent to the March 1984 operation.

Similarly, the paragraph is not impermissibly conclusory, since it outlines Dr. Rubin’s opinion that Dr. Ashley’s negligence resulted in near death, two laparotomies, unnecessary pain and suffering, and unwarranted medical expenses. Dr. Rubin’s belief that these operations and costs were occasioned by Dr. Ashley is not equivalent to an im-permissibly conclusory opinion that a defendant was negligent. See Loving, supra at 255. The trial court improperly excluded the paragraph from consideration below.

3. Mrs. Kirk contends that the trial court’s determination that Dr. Rubin’s affidavit was legally insufficient and its grant of summary judgment on that basis was erroneous.

There are two steps in evaluating the legal sufficiency of an expert counter-affidavit. Connell v. Lane, 183 Ga. App. 871 (360 SE2d 433) (1987). First, the counter-affidavit must establish “the parameters of acceptable professional conduct.” Beauchamp v. Wallace, 180 Ga. App. 554, 555 (349 SE2d 791) (1986). Secondly, it must set forth specific facts as the basis for reaching the conclusion that treatment did not meet the standard of care. Hillhaven Rehabilitation &c. Center v. Patterson, 195 Ga. App. 70 (392 SE2d 557) (1990); Bushey v. Atlanta Emergency Room Group, 179 Ga. App. 827 (348 SE2d 98) (1986). This two-step process assures that counter-affidavits contain the particulars of negligence, instead of conclusory language. See Connell, supra at 872.

The first part of our inquiry is satisfied since Dr. Rubin’s affidavit clearly set out the parameters of acceptable professional conduct. Dr. Ashley contends that the affidavit fails under the second part of the inquiry, since Dr. Rubin did not articulate the reason he believes that Dr. Ashley did not have “the ability” to repair the tears and since the use of the word “ability” is confusing.

Though we agree that the meaning of “ability” in this context is somewhat confusing, it is not fatal to Dr. Rubin’s criticism of Dr. Ashley. On summary judgment all inferences, all ambiguities, and all doubts, are resolved against the movant and in favor of the party opposing the motion. Jones v. Rodzewicz, 165 Ga. App. 635, 637 (4) (302 SE2d 402) (1983). Here, construing the sentence in the light most favorable to Plaintiff, we find that Dr. Rubin created an issue of fact regarding Dr. Ashley’s choices in treating Mr. Kirk when faced with complication and blood loss.

Because of our decision that the stricken paragraph of Dr. Rubin’s affidavit should have been considered, we find that there is also, a factual issue regarding the cross-matching and typing of Mr. Kirk’s blood prior to surgery. Although, in the absence of such paragraph there was no positive evidence to contradict Dr. Ashley’s testimony that no harm was caused, with its inclusion such evidence exists.

Decided April 3, 1991

Rehearing denied May 29, 1991

Cook, Noell, Tolley & Aldridge, J. Vincent Cook, for appellants.

Brinson, Askew & Berry, Robert M. Brinson, Don M. Jones, Mark M. J. Webb, for appellee.

We cannot say that Dr. Rubin’s affidavit is, as a matter of law, insufficient. “ ‘ “Summary judgments should only be granted where, construing all inferences against the movant, it yet appears without dispute that the case can have but a single outcome.” ’ ” (Emphasis deleted.) Jackson v. Gershon, 251 Ga. 577, 580 (308 SE2d 164) (1983). Dr. Rubin’s affidavit created a jury question and the trial court’s grant of summary judgment on the amended portions of the complaint was erroneous.

4. Mrs. Kirk’s final enumerations of error are without merit and will not be addressed here.

Judgment affirmed in part, reversed in part.

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

       Since the filing of the complaint, Mr. Kirk died of traumatic injuries he sustained in a car accident.

       This lawsuit was filed prior to the enactment of OCGA § 9-11-9.1 and therefore it was not necessary that an expert affidavit be filed with the complaint.

       Impermissibly conclusory affidavits typically contain boilerplate language and “magic words.” See Minchey v. Zane, 188 Ga. App. 733 (374 SE2d 225) (1988); Connell v. Lane, 183 Ga. App. 871 (360 SE2d 433) (1987); Beauchamp v. Wallace, 180 Ga. App. 554 (349 SE2d 791) (1986); Bushey v. Atlanta Emergency Group, 179 Ga. App. 827 (348 SE2d 98) (1986).

       Dr. Ashley’s second affidavit regarding the propriety of her actions after the complications arose does not eliminate a factual issue.


text:
    A91A0305.
    SMITH v. WAL-MART STORES, INC.
    (406 SE2d 234)
   Andrews, Judge.

This is an appeal from the grant of summary judgment to defendant Wal-Mart Stores in this slip and fall case. Viewed in favor of Smith, the opponent of the summary judgment motion, OCGA § 9-11-56; Eiberger v. West, 247 Ga. 767, 769 (1) (281 SE2d 148) (1981); the evidence was that she was injured when she slipped in a puddle of clear liquid in the middle of an aisle in the patio furniture section at Wal-Mart. Smith did not see the substance on the floor before she fell, although her shopping companion did. Smith claimed that Wal-Mart was negligent in failing to properly inspect and maintain the premises.

In support of its motion for summary judgment, Wal-Mart filed three affidavits in which the testifying employees swore that they were unaware of the substance on the floor. In the store manager’s affidavit, he stated that on the date of Smith’s fall, Wal-Mart employees swept the floor at 11:30 a.m., 3:00 p.m., 6:30 p.m. and at the close of the business day. He stated that it was Wal-Mart’s policy that any employee observing a spill on the floor was to secure the area and call for someone with a broom or mop to clean up the spill. He further swore that there were no reports of any spills on the date of Mrs. Smith’s fall.

In order to recover in a slip and fall case of this nature, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). Here, the inquiry under the first prong is limited to whether Wal-Mart had constructive knowledge of the liquid, since there was no evidence that Wal-Mart had actual knowledge of such substance. Cf. Padgett v. M & M Super Market, 195 Ga. App. 799 (395 SE2d 245) (1990).

Constructive knowledge by an owner or occupier of the foreign substance can be established in one of two ways. First, “[constructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could easily have noticed and removed the hazard.” Food Giant v. Cooke, 186 Ga. App. 253, 254 (366 SE2d 781) (1988); see also Sain v. K-Mart Corp., 190 Ga. App. 751, 752 (380 SE2d 299) (1989). The evidence was uncontroverted that there were no store employees in the immediate vicinity of the incident; therefore there was no constructive knowledge under the first-prong test.

The second basis for liability based on constructive knowledge is that the owner failed to exercise reasonable care in inspecting the premises. “To sustain a cause of action in the latter type case the plaintiff must show that the foreign substance was on the floor for a length of time sufficient for knowledge of it to be imputed to the defendant. [Cit.]” Alterman Foods, supra at 623; see also Food Giant, supra; Mitchell v. Rainey, 187 Ga. App. 510 (370 SE2d 673) (1988); Fulton-DeKalb County Hosp. Auth. v. Estes, 187 Ga. App. 120 (369 SE2d 262) (1988). This part of the test focuses on whether the foreign substance was on the premises long enough that the owner should have known of it.

According to Smith’s companion, the fall occurred between 1:30 and 2:00 p.m. Construing the evidence most favorably for the non-movant, the liquid could have been on the floor for as long as two and one half hours after the 11:30 a.m. cleaning. In fact, Smith and her friend claimed that upon inspection of the puddle after the fall, they noticed that the puddle seemed to have dried around the edges. Because we cannot exclude the possibility that the substance was on the floor for an unreasonably lengthy period, we conclude that a jury issue existed as to Wal-Mart’s constructive knowledge under the first prong of the Alterman two-prong test.

Because a factual issue exists with respect to whether Wal-Mart should have been aware of the liquid on the floor, we proceed to the second prong of the Alterman Foods, supra, test, to determine whether Smith was unaware of the spilled liquid or for some reason attributable to the defendant was prevented from discovering the foreign substance on her own. This part of the test demands that a person exercise ordinary care for her own safety.

Decided May 10, 1991

Rehearing denied May 29, 1991

William Eckhardt, for appellant.

Watson, Spence, Lowe & Chambless, Stephen S. Goss, for appel-lee.

“ ‘In order to recover for a slip and fall resulting from a “foreign substance” such as water on a ramp, “not only must the plaintiff show that the defendant had knowledge of the presence of the foreign substance, but the plaintiff must also show that he was without knowledge of its presence. (Cit.) ‘The customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.’ (Cits.)” [Cits.]’ ” Bowman v. Richardson, 176 Ga. App. 864, 865 (338 SE2d 297) (1985).

Here, Smith’s companion saw the liquid puddle and there was no evidence that Wal-Mart was responsible in any way for Smith’s failure to see it. In fact, Smith testified at her deposition . . . that had she been looking down there was nothing that would have prevented her from seeing the substance before she fell. “There was no duty to warn her of a condition of which she had knowledge at least equal to that of defendants. [Cits.]” Favour v. Food Lion, 193 Ga. App. 750, 751 (389 SE2d 22) (1989). “This is a ‘plain, palpable, and indisputable’ case not calling for resolution by a jury. [Cits.]” Favour, supra at 751. The trial court’s grant of summary judgment was proper since Smith was not exercising due care for her own safety and therefore, she cannot recover. OCGA § 51-11-7; see also Allen v. Big Star Food Market, 172 Ga. App. 879 (324 SE2d 820) (1984).

Judgment affirmed.

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


text:
    A91A0358.
    HAHNE v. WYLLY.
    (406 SE2d 94)
   Sognier, Chief Judge.

Susan C. Wylly asserted a fraud claim against Francis J. Hahne, Jr. d/b/a Fran Pools & Spas arising from the construction of a swimming pool in the backyard of her Wilmington Island home. A jury returned a verdict for Wylly, and Hahne appeals from the denial of his motion for judgment notwithstanding the verdict.

At trial, appellee presented evidence that her house was built in 1978 and a septic system was installed at that time. She purchased the home in 1984, and shortly thereafter contacted appellant about building a pool. He came to her home in September 1984 to discuss the feasibility of placing a pool in her yard and concurred in her choice of a pool site. Appellee testified that she pointed out the location of the septic tank and asked whether the pool would interfere with the operation of the system, and that appellant responded “that wouldn’t be a problem.” Appellee testified she knew nothing about the operation of septic systems, and accordingly relied on appellant’s statement. During the pool excavation, appellee became concerned after she observed the crew had unearthed and removed a three foot length of what appeared to be septic piping. When she asked appellant about it, he confirmed that the pipe was part of her septic system but stated that it was not needed for proper operation of the system.

In February 1988, appellee began to experience problems with her septic system. She noticed a foul odor emanating from the tank, and soon the toilets and showers began to back up. She consulted with Jody Smith, who had originally installed the septic system in 1978, and he conducted tests to determine the source of the problem. He testified that appellee’s system was a “level field” system — i.e., that it was comprised of a series of piping lines installed to connect in a loop configuration. As a result, the system would continue to function if a small portion of piping was damaged or clogged by tree roots, but would not work if piping was removed. After conferring with Sam Simpson, the county environmental sanitation inspector who had inspected and diagrammed the initial installation, Smith excavated portions of the system. He and Simpson concluded that the entire middle line and part of the end line — approximately 30 to 35 feet — had been removed during the pool installation, and that much of another line was covered by the concrete walkway around the pool, impairing the evaporation function of the system. Both witnesses acknowledged that septic systems have a limited life span which can be affected by a number of factors, but each opined that the problems with appellee’s system arose from the pool installation. Benjamin Gay, the engineer engaged to design the replacement system installed by Smith, testified that the original system failed because of an insufficient amount of drain footage resulting from the removal of a significant portion of the drain field during the pool installation and the covering of another portion by the pool walkway.

Appellant testified he assumed appellee had a trident septic system, which did not have the closed loop construction, but made no investigation to determine whether his assumption was correct. Appellant and his excavation contractor, H. H. Jones, acknowledged removing a section of pipe between three and five feet long, but did not think any problem would result from the removal of such a small portion of piping. Both knew that the county inspector’s report was on file at the health department and available to the public, and Jones acknowledged that the only way to locate the drain field was to refer to the report. Appellant, however, stated he did not obtain the report because in his experience the inspector’s drawings sometimes were inaccurate. Appellee’s witnesses who had consulted the drawing for her property testified that it did accurately reflect the location of the piping.

1. We first address appellant’s contention that appellee’s claim was barred by the statute of limitation because the cause of action arose in 1984 and the complaint was not filed until March 1989. Fraud claims are governed by a four-year statute of limitation, OCGA § 9-3-31 (see Shapiro v. Southern Can Co., 185 Ga. App. 677 (365 SE2d 518) (1988)), but this limitation period may be tolled if the defendant committed an act of actual fraud that had the effect of concealing from the plaintiff the existence of the cause of action despite her exercise of reasonable diligence. OCGA § 9-3-96; Jim Walter Corp. v. Ward, 245 Ga. 355, 357 (265 SE2d 7) (1980). Actual fraud involves moral turpitude, Shipman v. Horizon Corp., 245 Ga. 808 (267 SE2d 244) (1980), and requires an intentional deception by false representation or by concealment of a fact. Lodge v. Popham, 156 Ga. App. 825 (275 SE2d 669) (1980). When actual fraud is the gravamen of the underlying action, no independent fraud is required for tolling of the statute of limitation, and the limitation period is tolled until the plaintiff discovers or in the exercise of reasonable diligence should have discovered the fraud. Shipman, supra.

Here, the evidence presented at trial authorized a finding of actual fraud in appellant’s statement assuring appellee that the pool construction would have no effect on her septic system even though he did not know what type of system she had or where the drain field was located and made no attempt to find out, and in his continued assertions that the septic system was unimpaired even after large portions of the piping were removed during the pool excavation. See Fleming v. Lee Engineering &c. Co., 184 Ga. App. 275, 276 (361 SE2d 258) (1987); Spiva v. Union County, 172 Ga. App. 151, 152 (1) (322 SE2d 351) (1984). Given that the damage was concealed 24 inches below the surface and that appellant stated to appellee that he removed only a three foot segment of piping when there is evidence that much more was removed, and given Gay’s testimony that a level field system could continue to operate for a period of time after part of the drain field is removed, we hold the statute of limitation was tolled until February 1988 when appellee first experienced problems with the septic system. Fleming, supra; compare Gerald v. Doran, 169 Ga. App. 22 (311 SE2d 225) (1983) (fraud claim filed in 1982 based on alleged misrepresentations concerning house built in 1976 held barred because problems became apparent in 1977). Appellee’s complaint was filed 13 months after discovery of the problem, and accordingly was brought within the statutory period.

2. In his second enumeration, appellant contends that the trial court erred by denying his motions for directed verdict and judgment notwithstanding the verdict on appellee’s attorney fees claim because appellee’s fraud claim was insufficient as a matter of law. In his brief, however, he does not address the merits of this contention, but instead argues the entirely different issue of whether he should have received a directed verdict on appellee’s fraud claim because of a clause in his contract with appellee. “Thus, the error that is actually enumerated is not supported by argument and the argument that is actually advanced is not predicated upon any enumeration of error. Under these circumstances, nothing is presented for appellate review.” Stanley v. State, 195 Ga. App. 706, 707 (2) (394 SE2d 785) (1990); see Rowe v. Rowe, 195 Ga. App. 493, 494-495 (3) (393 SE2d 750) (1990).

3. In enumerations 1 and 3, appellant challenges the sufficiency of the evidence proffered to prove the essential elements of material misrepresentation and justifiable reliance, contending that the statements he made to appellee concerning the effect of the pool installation on her septic system were statements of opinion, not fact, and that she could not justifiably have relied on his statements. We do not agree with either contention. The evidence adduced at trial was sufficient to authorize a finding that appellant’s statements that the installation of the pool, and particularly the removal of a portion of the drain field, would not impair the functioning of appellee’s septic system “were not mere opinions, or promises as to future events, but. . . were representations of fact ... by one upon whom [appellee was] entitled to rely as having special knowledge of [pool installation and its effect on septic systems]. [Cit.]” Ga.-Carolina Brick &c. Co. v. Brown, 153 Ga. App. 747, 748 (266 SE2d 531) (1980). The jury was authorized to conclude that appellant, to induce appellee to enter into and to perform the pool contract, either made statements he knew were false or recklessly made representations with intent to deceive and without knowledge as to the truth or falsity of the statements. See OCGA § 51-6-2; see also Gaultney v. Windham, 99 Ga. App. 800, 804-805 (109 SE2d 914) (1959). Consequently, we find there was some evidence to support the jury’s verdict, see generally Smith v. Odom, 194 Ga. App. 615 (1) (391 SE2d 453) (1990), and thus affirm the trial court’s denials of appellant’s motions for directed verdict and judgment notwithstanding the verdict. See Ga.-Carolina Brick, supra at 747-749 (1).

Decided May 1, 1991

Rehearing denied May 29, 1991.

Adams, Gardner, Ellis & Inglesby, George L. Lewis, for appellant.

Oliver, Maner & Gray, I. Gregory Hodges, Patricia C. Tanzer, for appellee.

4. In his remaining enumeration appellant maintains that appel-lee was not entitled to attorney fees and expenses of litigation because she could not recover damages on the fraud claim. Since we have affirmed the judgment on the fraud claim, we also find there was evidence from which the jury could have found bad faith sufficient to award attorney fees. See id. at 749-750 (2) (A). Accordingly, this enumeration is without merit.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

On Motion for Rehearing.

In his motion for rehearing, appellant urges us to address the merits of his second enumeration of error as set forth in his brief, contending that any inconsistency between the wording of the enumeration and the argument in his brief was inadvertent. We necessarily considered the argument set forth in his brief when we reviewed the sufficiency of the evidence in Division 3 and decided that issue adversely to appellant.

Motion for rehearing denied.


text:
    A91A0090.
    LORD v. THE STATE.
    (406 SE2d 137)
   Andrews, Judge.

Lord appeals his convictions of false imprisonment, aggravated assault with intent to rape, and robbery. The charges arose from his assault on a young woman using a pay phone at night. Two of the three enumerations of error deal with the admission into evidence of two uncharged crimes and the third alleges error in the conduct of voir dire.

Viewed in favor of the verdict, the evidence regarding the charged incident was that on September 21, 1988, around 10:30 p.m., G. T., then 19 years old, stopped at a gas station pay phone off 1-85 near Lilburn to call her friend. As she was going to the phone, a man came up and told her he was in an accident and had to call his wife or ex-wife. G. T. asked him to use some other phones in a less well-lighted area of the station and he said he would wait, because he had hurt his leg. He then grabbed her and pushed her into her car. When she screamed and kicked, attempting to get out of the car, he told her he had a knife and, if she did not shut up, he would cut her. He told her his name was Steve (Lord’s first name). She stopped struggling and he locked the car doors. He grabbed some money from her purse, put it on the dash and said he did not want her money. While saying he was not going to hurt or rape her, he reclined the car seat and made her raise her skirt. He then put his finger in her vagina, but told her he was not going to penetrate her. At that point, a police car pulled into the station and he grabbed the money and ran.

The first uncharged incident occurred on September 24, 1988. M. H., 23 years old, was using a bank teller machine at 9:00 p.m. when she was approached from behind by a man who put a knife to her neck, told her not to make any noise, and dragged her to a wooded area behind the bank where he fondled her. He then took her to her car, made her lie down in the seat and put the knife to her throat. He told her he was not going to rape her, drove her to the side of a highway near Lilburn and raped her. He told her his wife had been killed in a car wreck and he was in a lot of pain.

On September 26, 1988, around 9:00 p.m., R. D., age 29, was using a pay phone outside a K-Mart in Cobb County. She noticed a man drive by in a red car with one window broken out and repaired with duct tape. As she was returning to her car, the man came up behind her and forced her into her car. She struggled vigorously with him, including grabbing a pocket knife and attempting to cut him. She thought she saw him with a knife and she was cut on the leg during the struggle. He finally left her car, telling her she was not as cooperative as the “two girls in Lilburn.”

The red car, registered to Lord, was impounded at the K-Mart after R. D. called police.

Lord gave a statement to police admitting his contact with M. H., including raping her. All three women were beaten and bruised on their faces during these incidents. All three positively identified Lord as their attacker.

1. (a) Lord objected to the introduction of the uncharged incidents on the grounds that there were no significant similarities or logical connection between them and the charged crime and that any relevance was outweighed by prejudice to Lord. After hearing the evidence out of the jury’s presence following G. T.’s testimony, the court concluded that the incidents were sufficiently similar and, after instructing the jury as to the limited purpose for their introduction, allowed the evidence.

While generally evidence of other criminal acts committed by an accused is inadmissible because it tends to put the accused’s character into evidence in violation of OCGA § 24-9-20 (b), “ ‘[exceptions allow independent crimes to be introduced on two conditions: 1) there must be evidence that defendant was in fact the perpetrator of the independent crime, and 2) there must be sufficient similarity or connection between the independent crime and the charged crime that proof of the former tends to prove the latter. [Cits.] Thereafter the independent crime may be introduced to prove identity, motive”, plan, scheme, bent of mind and course of conduct. (Cit.)’ Sablon v. State, 182 Ga. App. 128, 130 (2) (355 SE2d 88) (1987).” Franklin v. State, 189 Ga. App. 405, 408 (1) (376 SE2d 225) (1988).

Lord admitted one of the uncharged incidents. Lord’s defense to the charged incident was alibi. Two witnesses testified that he was seen by them about the time of the charged incident. “Since defendant’s only defense was that he was elsewhere and was not the assailant, identity was the primary issue. The other crimes were admissible for this purpose and were sufficiently similar to meet the second prong of the test.” Franklin, supra.

Even if the uncharged incidents had not been similar, there was a logical connection between them in that Lord told R. D. that she was not as cooperative as the “two Lilburn girls.” This was sufficient connection for admissibility. Henderson v. State, 182 Ga. App. 513, 516 (2) (356 SE2d 241) (1987), rev’d in part on other grounds, 257 Ga. 618.

(b) Before trial, Lord filed a motion in limine seeking to have the court, prior to trial, direct the prosecutors and their witnesses not to mention the uncharged incidents, because they were not similar or logically connected and unduly prejudiced Lord. Before voir dire, the motion was renewed and an objection was made to hearing the matter mid-trial. USCR 31.3 (B) provides that “[t]he judge shall hold a hearing at such time as may be appropriate, and may receive evidence on any issue of fact necessary to determine the request, out of the presence of the jury.”

“By its language concerning the jury’s presence, Rule 31.3 anticipates mid-trial as a possible appropriate hearing time. Thus, while it is preferrable that the hearing be held before trial, it is not reversible error to conduct the hearing in mid-trial where, as here, appellant can show no prejudice suffered from the failure tó have the hearing before trial.” Thaxton v. State, 260 Ga. 141, 144 (6) (390 SE2d 841) (1990).

Decided May 29, 1991.

D. Warren Auld, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

2. Lord argues, with regard to voir dire, that he was improperly deprived of the right to individually question potential jurors regarding their exposure to media coverage of Lord and their individual experiences with robbery. During the general voir dire conducted by prosecution and defense, many jurors acknowledged having heard about Lord, apparently from the media, and several were excused by the court for cause because they indicated that they would not be able to be fair and impartial jurors as a result.

Defense counsel asked questions concerning media exposure and robbery to the panel as a whole, the only restriction was when he began to question each juror individually on the same topics. The court conducted the voir dire in compliance with USCR 10.1 and there was no improper restriction of it. Walker v. State, 258 Ga. 443, 444 (2) (370 SE2d 149) (1988).

Judgment affirmed.

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


text:
    A91A0302.
    WALLACE v. THE STATE.
    (406 SE2d 140)
   Andrews, Judge.

Wallace appeals his burglary conviction and contends for the first time on appeal that his trial counsel was ineffective. Wallace’s appellate counsel was appointed to the case 30 days after the notice of appeal had been filed. Since the opportunity for a hearing on this issue before the trial court was lost before appellate counsel became involved in the case, the argument was raised at the earliest possible moment. See Ponder v. State, 260 Ga. 840 (400 SE2d 922) (1991). Therefore, the case must be remanded for a hearing and appropriate findings on the issue of the asserted ineffectiveness of trial counsel. See Johnson v. State, 259 Ga. 428 (3) (383 SE2d 115) (1989); Frazier v. State, 195 Ga. App. 599 (394 SE2d 396) (1990); Weems v. State, 196 Ga. App. 429 (395 SE2d 863) (1990). Following decision of the trial court, Wallace may file a timely new notice of appeal raising all issues he could have raised in this appeal.

Because of this decision, we need not address the remaining enumerations of error.

Case dismissed and remanded with direction.

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

Decided May 29, 1991.

Marc D. Celia, for appellant.

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


text:
    A91A0815.
    THOMAS v. THE STATE.
    (406 SE2d 811)
    Decided May 29, 1991.

      Bennett, Wisenbaker & Bennett, C. Richard Williams, Jr., for appellant.

      H. Lamar Cole, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.
   Andrews, Judge.

Thomas entered a guilty plea to a charge of aggravated assault, for which the maximum sentence is 20 years imprisonment. OCGA § 16-5-21 (b). He was sentenced to 15 years, ten years of imprisonment and five years of probation. On appeal, Thomas contends that the sentence constituted cruel and unusual punishment.

“ ‘This court is not empowered to modify a sentence which is within the statutory limits for the offense. (Cits.)’ ” Morgan v. State, 197 Ga. App. 397 (398 SE2d 866) (1990). “ ‘ “Any question as to the excessiveness of a sentence, which in this case was within the legal limits, should be addressed to the appropriate sentence review panel.” (Cits.)’ [Cits.]” Gordon v. State, 190 Ga. App. 414 (1) (379 SE2d 221) (1989).

Judgment affirmed.

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


text:
    A90A0137.
    FIRST FINANCIAL INSURANCE COMPANY v. RAINEY et al.
    (406 SE2d 487)
    Decided May 7, 1991.

      Crim & Bassler, Harry W. Bassler, Philip G. Pompilio, for appellant.

      Burt & Swan, Walter H. Burt III, William S. Stone, for appel-lees.
   Banke, Presiding Judge.

The appellees in this case sued to recover certain, “no-fault” automobile insurance benefits allegedly owed them by the appellant insurer, along with a bad-faith penalty, punitive damages and attorney fees. The trial court awarded them summary judgment on their claim for the insurance benefits, and a jury returned a verdict in their favor on the claim for a bad-faith penalty, punitive damages, and attorney fees. In First Financial Ins. Co. v. Rainey, 195 Ga. App. 655 (394 SE2d 774) (1990), this court affirmed both awards. However, on cer-tiorari, the Georgia Supreme Court reversed the portion of our judgment affirming the award of a bad-faith penalty, punitive damages, and attorney fees. First Financial Ins. Co. v. Rainey, 261 Ga. 52 (401 SE2d 490) (1991). In accordance with the decision of the Supreme Court, Divisions 3 through 6 of our previous decision in the case are hereby vacated, and the judgment of the trial court is hereby affirmed in part and reversed in part.

Judgment affirmed in part and reversed in part.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Carley, Pope, Beasley, Cooper and, Andrews, JJ., concur.


author: Banke, Presiding Judge. Beasley, Judge,

text:
    A91A0055.
    BLACK v. THE STATE.
    (406 SE2d 258)
   Banke, Presiding Judge.

The appellant, Michael Black, was convicted of molesting his four-year-old stepdaughter. See generally OCGA § 16-6-4. His sole enumeration of error on appeal is directed to a jury instruction given during the course of the trial which, he contends, constituted an improper comment by the court regarding the credibility of the child’s in-court testimony.

A protective service worker employed by the Department of Family & Children’s Services testified that the child had revealed to her, by reference to an anatomically correct doll, that the appellant had placed both a beer bottle and his finger on her vagina. However, at trial the child shook her head negatively when asked by the state’s attorney if the appellant had done anything to her. The state’s attorney then asked the child whether she was afraid of the appellant, and defense counsel objected on the ground that the question was leading. The following exchange then took place between the trial judge and the witness: “THE COURT: ‘I’ll permit her to answer that question. Young lady, are you afraid? Are you afraid of someone? You are not afraid of me, are you?’ THE WITNESS: (Moves head from side to side.) THE COURT: ‘Are you afraid of someone?’ THE WITNESS: (Moves head up and down.) THE COURT: ‘Who are you afraid of?’ THE WITNESS: ‘Michael.’ THE COURT: ‘Proceed.’ ”

After the child had finished testifying, four other witnesses, including her mother and her grandmother, testified that she had also indicated to them that the appellant had placed his finger on her vagina. Three of these witnesses further testified that the child had begun to change her story approximately a week before trial, telling them she was afraid the appellant might hurt her. At the conclusion of the testimony of these witnesses, the judge instructed the jury as follows: “Members of the jury, I caution you that the witness is of tender years, I believe four years old, and the weight and credit to be given that witness’ testimony, a witness of such tender years, is a matter within your discretion. Her veracity, her appreciation of the consequences of her statements are all matters for you to consider and determine in giving her testimony any weight and credit at all. And in the final analysis, it would be your decision as to what weight and credit such testimony might be given, if any.” Defense counsel moved for mistrial at this time, contending that these instructions, coming as they did at the conclusion of testimony of other witnesses regarding the child’s prior reports of molestation rather than at the conclusion of the child’s in-court testimony denying that the appellant had molested her, constituted an improper expression of opinion by the court to the effect that the child’s in-court testimony should be disregarded. The judge responded that he had simply forgotten to give the instruction at the conclusion of the child’s testimony and, at the appellant’s request, further instructed the jury that they were sole judges of the credibility of the witnesses and that he had not intended by the timing of his previous instructions to make any comment on the evidence. The appellant did not thereafter renew his motion for mistrial or request further curative instructions. Held:

“Where a trial judge is alleged to have made prejudicial remarks during the course of the trial, an objection or motion for mistrial must be made to preserve the issue for appeal. (Cit.)” Gonzalez v. State, 175 Ga. App. 217, 223 (8) (333 SE2d 132) (1985). “When a motion for mistrial is [made but is] not renewed after curative instructions by the court, the issue is not preserved for appeal. (Cit.)” Smith v. State, 187 Ga. App. 322 (2) (370 SE2d 185) (1988). It follows that the present appeal presents nothing for review.

Decided May 29, 1991.

Albert C. Palmour, Jr., for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Susan S. Camp, Melodie B. Swartzbaugh, Assistant District Attorneys, for appellee.

Judgment affirmed.

Carley, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur for the reason that the curative instruction removed any inference that the judge favored the State’s witness and thus precluded the necessity for a mistrial to be declared. Assuming the placement of the original instruction gave rise to such an inference, it was eliminated by the curative instruction which brought the trial into compliance with OCGA § 17-8-57.

I do not agree that the opportunity for appellate review of the ruling on the motion for mistrial was lost by nonrenewal, for defendant made clear before the suggested re-instruction was given that: “Let me also state, Your Honor, that no way do I feel like those instructions will cure the taint that has occurred by you giving the charge at the time you did.” Defendant unequivocally notified the trial court that he insisted on a mistrial despite the proposed curative instruction, which was given, thus serving the purpose for requiring renewal of the motion, i.e., that the curative instruction was not a satisfactory remedy. See Barnes v. State, 111 Ga. App. 348 (1) (141 SE2d 785) (1965).


author: Cooper, Judge.

text:
    A91A0072.
    ADAMS et al. v. FINLAYSON et al.
    (406 SE2d 227)
   Cooper, Judge.

Appellants brought suit to recover for damage to their home and car after appellee Keith Finlayson swerved off the highway to avoid hitting a dog and struck appellants’ car, forcing the vehicle into appellant's home. The car had been provided to Keith by appellee James Finlayson, his father. The jury returned a verdict for appellees, and the trial court denied appellants’ motion for new trial. On appeal, appellants enumerate as error the court’s charges to the jury on legal accident and sudden emergency.

1. Relying on Chadwick v. Miller, 169 Ga. App. 338 (312 SE2d 835) (1983), appellants contend that the charge on legal accident was inappropriate because there was evidence of Keith’s negligence. “The defense of accident in this state is to be confined to its strict sense as an occurrence which takes place in the absence of negligence and for which no one would be liable. Unless there is evidence authorizing a finding that the occurrence was an ‘accident’ as thus defined, a charge on that defense is error. [Cits.]” Id. at 344. Although there was evidence that the collision could have resulted from Keith’s negligent operation of the car, the jury could also have concluded that the accident was not proximately caused by the negligence of any party. See Kelly v. Adams, 197 Ga. App. 574 (1) (398 SE2d 848) (1990). Keith testified that he had been travelling 55 mph, in a 55 mph zone, when a dog darted in front of his car, and when he swerved, he drove off the paved surface and had difficulty regaining control of the car because there were no shoulders on either side of the road and ditches were on both sides. The jury could have concluded that Keith’s perception of the dog was reasonable or “that regardless of the reasonableness of [his] perception, [he] had no time to avoid or react differently to the unforseeable obstacle posed by the [dog.]” Id. at 575. “Where the jury is authorized under the alternatives submitted by the evidence to find that the collision was not proximately caused by negligence but could have resulted from an unforeseen or unexplained cause, there is ample reason to give a charge on the law of accident. [Cit.]” Reed v. Heffernan, 171 Ga. App. 83, 87 (2) (318 SE2d 700) (1984); Kelly v. Adams, supra. The evidence adduced at trial supported the charge on legal accident.

2. Appellants next argue that the defense of sudden emergency is not available to one who by his own actions creates the emergency and that Keith’s excessive speed which prevented him from avoiding the dog without losing control of the car was the source of the emergency. “ ‘The doctrine of sudden emergency refers only to those acts which occur immediately following the apprehension of the danger or crisis and before there is time for careful reflection. (Cit.) The rule of sudden emergency is that one who in a sudden emergency acts according to his best judgment or, because of want of time in which to form a judgment, acts in the most judicious manner, is not chargeable with negligence.’ (Cits.) ‘An emergency is a “sudden peril caused by circumstances in which the defendant did not participate and which offered him a choice of conduct without time for thought so that negligence in his choice might be attributable not to lack of care but to lack of time to assess the situation.” ’ (Cit.)” Luke v. Spicer, 194 Ga. App. 183, 184 (3) (390 SE2d 267) (1990).

The evidence demonstrated that Keith was driving within the speed limit; that Keith was not responsible for the presence of the dog which caused him to swerve; that Keith was not charged with violating any traffic offense in connection with the accident; and that he had no control of the road conditions. The jury was certainly entitled to consider whether Keith’s acts after the unexpected appearance of the dog indicated a lack of care or a lack of time to assess the situation. See Kelly v. Adams, supra Thus, the trial court did not err in submitting the charge to the jury.

Decided May 1, 1991

Rehearing denied May 30, 1991

Harrison & Harrison, G. Hughel Harrison, for appellants.

Swift, Currie, McGhee & Hiers, Jonathan M. Engram, for appel-lees.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


author: Pope, Judge.

text:
    A91A0675.
    AMERICANI v. SIDKY.
    (406 SE2d 259)
   Pope, Judge.

Appellee/plaintiff filed suit against appellant/defendant alleging breach of the parties’ contract pursuant to which defendant was to build a house for plaintiff. Defendant answered and counterclaimed, seeking to recover for work performed in addition to that specified in the contract. The jury awarded plaintiff $17,300 in damages and $5,700 in attorney fees on his breach of contract claim and awarded defendant $2,100 on his counterclaim under a theory of quantum me-ruit. Defendant appeals from the denial of his motion for new trial.

1. Defendant first contends that attorney fees were improperly allowed in this case. The record shows, however, that defendant posed no objection at trial either to the admission of evidence concerning litigation expenses or to the court’s charge to the jury on this issue. “[Defendant’s] failure to address this matter to the court below precludes our consideration of it for the first time on appeal. [Cits.]” Sunn v. Trophy Marine, Inc., 176 Ga. App. 68, 69 (2) (334 SE2d 884) (1985).

2. Defendant next contends the trial court erred in denying his motion for continuance made on the first day of trial. See OCGA § 9-10-154. We find no error. “ ‘To entitle a party to a continuance . . . evidence of some character, under oath, must be presented that the absent party was in fact “providentially prevented from attending . . . the trial [of the case].” A statement by counsel of the absent party in this case, that “[the defendant] was ill and could not attend court,” was not a sufficient showing in support of . . . the motion. . . .’ [Cits.]” (Emphasis supplied.) Stanley v. Amos, 79 Ga. App. 297, 300-301 (53 SE2d 568) (1949). Moreover, no evidence was presented that “[defendant’s] condition ‘was expected to improve so as to enable him to be present at a future trial of the case. (Cit.)’ Allen v. Brookshire, 169 Ga. App. 391 (1) (312 SE2d 862) (1984). Under [these] circumstances the trial court did not abuse its discretion by denying the motion for continuance.” Wasson v. Cox, 176 Ga. App. 684, 685 (337 SE2d 445) (1985).

Decided May 30, 1991.

Sexton, Turner & Moody, Lee Sexton, for appellant.

Albert B. Wallace, for appellee.

3. Lastly defendant enumerates as error the trial court’s refusal to give his request to charge on substantial performance. The charge requested related to a builder’s right to recover the contract price if he has substantially performed under the contract. The issue in this case, however, was the owner’s right to recover for defendant’s breach of contract. Thus, on its face, the charge was not adjusted to the facts of this case. Moreover, the pleadings and pre-trial order do not suggest that defendant sought to defend this action against him on the basis that he substantially performed under the contract, but rather maintained that plaintiff was not entitled to recover because “he fully performed the written contract.”

“ ‘In order for a refusal to charge to be error, the requests must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge. (Cit.)’ [Cits.]” Doctors Hosp. v. Bonner, 195 Ga. App. 152, 160-161 (5) (392 SE2d 897) (1990). Our review of the transcript shows the trial court’s charge to the jury was adjusted to the evidence in this case and thoroughly informed the jury of the principles of law applicable to both parties’ theories of recovery and defenses. For the reasons stated above, the trial court did not err in refusing to give the requested charge.

Judgment affirmed.

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


text:
    A89A2160.
    MADDOX et al. v. SUPERIOR RIGGING & ERECTING COMPANY et al.
    (407 SE2d 138)
   Cooper, Judge.

This court having entered on March 15, 1990, a judgment in the above-styled case (195 Ga. App. 114 (393 SE2d 42) (1990)), reversing the judgment of the trial court and remanding the case to the trial court; and the judgment of this court having been reversed on certio-rari by the Supreme Court in Superior Rigging &c. Co. v. Maddox, 260 Ga. 855, (401 SE2d 258) (1991), the judgment heretofore rendered by this court is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Decided May 31, 1991.

Scott Walters, Jr., for appellants.

Pierce, Goldner, Sommers & Scrudder, Stephen L. Goldner, Glenn S. Bass, for appellees.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.