text:
    76681.
    HUDSON v. THE STATE.
    (374 SE2d 212)
   Beasley, Judge.

Defendant appeals his convictions of two counts of first degree forgery. OCGA § 16-9-1.

1. The first enumeration of error is that the trial court erred in permitting the State to use as a handwriting exemplar defendant’s signature which was requested when he was fingerprinted.

According to the officer who booked defendant, he told defendant he needed defendant’s fingerprints. He then testified: “I marked down the x’s on the fingerprint card where I needed him to sign it. He signed it. I signed it. And I went ahead and fingerprinted him.” Defendant had not been given the Miranda (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966)) warnings at that time, but he was cooperative and did not object to signing or make any complaint about signing. The officer did not tell defendant that he had to sign the card, but merely told him to sign it. If defendant had refused, this would have been noted on the back of the card.

There is no indication that requiring the signing of the card was for any purpose other than as part of the administrative processing when defendant was booked. Nonetheless, the State ultimately decided to use the signature on the fingerprint card for comparison by an expert with the signatures on the checks allegedly forged.

Appellant relies exclusively on the State Constitution and cases construing it.

Art. I, Sec. I, Par. XVI, 1983 Ga. Const, provides: “No person shall be compelled to give testimony tending in any manner to be self-incriminating.” In essentially the same character this right has been a part of the body of our constitutional law since 1861. It arises from the same roots as a provision in the Fifth Amendment to the United States Constitution. See the dissent of Justice Gunter in Creamer v. State, 229 Ga. 511, 522 (192 SE2d 350) (1972), for a brief historical description. Our courts have not given the Georgia provision the same construction as the federal courts have given to the federal provision, taking instead a broader view.

While the language of the Fifth Amendment has long been confined to “testimony,” our provision prohibits the State from compelling the individual to affirmatively produce any evidence, oral or real, physical or by action. Creamer v. State, supra at 516 says it means “all kinds of evidence ... all types of evidence.” See also Johnson v. State, 156 Ga. App. 496, 499 (274 SE2d 837) (1980); OCGA § 24-9-20. This is predicated on the common law maxim that “no man is bound to accuse himself of any crime, or to furnish any evidence to convict himself of any crime.” (Emphasis in original.) Marshall v. Riley, 7 Ga. 367, 370 (3) (1849). See Underwood v. State, 13 Ga. App. 206, 208 (78 SE2d 1103) (1913). “The constitutional guaranty protects one from being compelled to furnish evidence against himself, either in the form of oral confessions or incriminating admissions of an involuntary character, or of doing an act against his will which is incriminating in its nature.” (Emphasis in original.) Calhoun v. State, 144 Ga. 679 (1 & 2), 681 (87 SE 893) (1915).

We must consider the circumstances in which the affixing of the signature which was later used to convict, occurred. In this instance, the focus is on two aspects of the occurrence.

a) One is that Hudson was not being compelled to give evidence against himself. Instead, he was being “compelled,” if that characterization should be attached to the request of the deputy sheriff under the circumstances of defendant being under arrest and in the booking process, to sign the fingerprint card so as to directly verify and record as fact the identification of the fingerprints as Billy Ray Hudson’s. The purpose was to provide near-conclusive proof later, for administrative purposes, that this is the person who was arrested and booked.

Thus the purpose of obtaining the arrestee’s signature was not evidence-gathering or investigatory but was quite another, a routine administrative purpose. Evidence to prove crime was not being sought. Hudson was not being requested “to perform an act resulting in production of incriminating evidence, . . . [which] produces inadmissible evidence” as pointed out in Wessels v. State, 169 Ga. App. 246 (1) (312 SE2d 361) (1983).

The fact that the signature was later used as evidence against defendant does not tarnish its original innocent purpose, absent evidence of subterfuge. Of that there is no indication. In fact, the evidence is that the State did not even conceive of using the fingerprint card signature for comparison until after its efforts to locate other known handwriting had failed. As stated in Day v. State, 63 Ga. 667 (2) (1879) and quoted in Creamer, supra at 516, one cannot compel another by force against his consent to do something “for the purpose of using it as evidence against him on the criminal side of a court.”

Simply put, Hudson was not being requested to furnish something which was contemplated to be used as evidence of crime, but was instead being requested to record the identification of his fingerprints by way of writing his signature on the fingerprint card, as part of the standard booking procedure. It was not done to “further the prosecution,” in words found in Meriwether v. State, 63 Ga. App. 667, 670 (2) (11 SE2d 816) (1940). The court there also distinguished Blackwell v. State, 67 Ga. 76 (44 Am. R. 717) (1881), because the forced profert of defendant’s leg was for an evidentiary purpose, id. at 672, whereas requiring defendant to go from his cell to a nearby room was for the purpose of placement for inspection in a lineup and did not aid in the process of identification. And as recognized in State v. Thornton, 253 Ga. 524, 525 (2) (322 SE2d 711) (1984), requiring the defendant to do an act for “the purpose of producing evidence to be used against him” is the area of activity governed. The purpose of the requested act by the school official was also instrumental in the ruling that the student’s emptying of her pockets was not violative of the self-incrimination provision, in State of Ga. v. J. T., 155 Ga. App. 812 (273 SE2d 214) (1980).

The constitutional bar is that “No person shall be compelled to give testimony tending in any manner to be self-incriminating.” When scrutinizing the particular evidence claimed to have been unconstitutionally obtained, the law looks not only at whether it was compelled, whether the defendant gave it or it was instead simply taken from him, who did the compelling, and whether the evidence was self-incriminating, but it also looks at whether what was obtained was evidence.

The State cannot demand it of defendant by court order, as part of its evidence-gathering function, when it has charged that person with crime. State v. Armstead, 152 Ga. App. 56 (262 SE2d 233) (1979). “To force the defendant, then, to produce samples of his handwriting—potentially incriminating evidence which may be used as evidence in the defendant’s prosecution—would violate constitutional sanctions against self-incrimination.” Id. at 57. See also John son v. State, supra, in effect reversing denial of a motion to quash the State’s notice to produce.

Just as not all compelled evidence is prohibited, depending on who is doing the compelling (the assistant principal in State v. J. T., supra), so not all matter emanating from an act of defendant and later used in evidence constitutes what would be classified as “evidence of crime” when it is being originated.

Obviously, a person’s own signature would be “self-incriminating” by its very nature, if it links defendant to the crime charged. A forgery case, as here, could rarely if ever be proved without a known handwriting of the defendant, created somewhere, at some time, by himself. Thus, whether it is within the prohibited species of self-incriminating acts depends on the circumstances under which it occurs.

Since at the time and under the circumstances in which the signature was given, it did not constitute “evidence” against defendant, its later use as evidence was not precluded. In so holding, we do no disservice to the meaning of the constitutional provision.

b) This brings us to the second aspect of importance here, the question of compulsion.

“It has . . . frequently been held that where a person after arrest does not act voluntarily or without objection which tends to incriminate himself it is not error or unconstitutional to allow evidence of the act in the trial of the case. Whippier [v. State, 218 Ga. 198, 203 (126 SE2d 744) (1962)]; Thomas v. State, 213 Ga. 237, 239 (98 SE2d 549) and cases cited.” State v. J. T., supra. See also Montgomery v. State, 174 Ga. App. 95, 96 (1) (329 SE2d 166) (1985).

Examples where the state constitutional prohibition against compelled self-incrimination was violated include: compelling a suspect to hand over lottery tickets, Grant v. State, 85 Ga. App. 610 (69 SE2d 889) (1952); requiring an operator of a motor vehicle to drive it upon scales, Aldrich v. State, 220 Ga. 132 (137 SE2d 463) (1964); requiring defendant to produce physical evidence under old Code § 38-801 (g), Johnson v. State, supra; requiring defendants after an illegal arrest to surrender their clothing, Raif v. State, 109 Ga. App. 354 (136 SE2d 169) (1964); compelling a resisting defendant to submit a handwriting exemplar, State v. Armstead, 152 Ga. App. 56 (262 SE2d 233) (1979).

We are reminded of the admonition found in Underwood v. State, supra: “ ‘Courts should liberally construe the constitutional provisions against compelling the accused to be a witness against himself, and refuse to permit any first or doubtful steps which may invade his rights in this respect.’ ” Our courts in applying the constitution as construed have found compulsion where the accused was under the illegal control of the State.

In Marshall v. State, 130 Ga. App. 572 (203 SE2d 885) (1974), while defendant was being processed in jail, a search of his person revealed a knife. Absent showing the validity of defendant’s arrest the evidence was held inadmissible. The decision was based upon the reasoning of Sherman v. State, 2 Ga. App. 148 (1) (58 SE 393) (1907): “Evidence obtained by illegal seizure and search of the defendant’s person, by which he is compelled to criminate himself, being inadmissible against a defendant accused of crime, the burden devolves upon the State to show that evidence obtained by search was procured after a legal arrest.”

Quoting Raif v. State, supra, it was stated in Holtzendorf v. State, 125 Ga. App. 747, 751 (188 SE2d 879) (1972), a case of physical precedence involving illegal arrest: “ ‘A prisoner in police custody by reason of an illegal arrest (or any other form of detention, overt or subtle) is in no position to refuse to comply with the demands of the officer in whose custody he is placed whether such demand is couched in the language of a polite request or a direct order. If a command, the prisoner is directly forced to comply, and if a request, he is indirectly forced to comply.’ ” Accord Hunt v. State, 133 Ga. App. 444 (211 SE2d 399) (1974), where the police “demanded” to see papers which were “finally surrendered”; Hill v. State, 140 Ga. App. 121, 124 (2) (230 SE2d 336) (1976), where an illegal arrest infected a consent to search a backpack; Radowick v. State, 145 Ga. App. 231, 241 (4) (244 SE2d 346) (1978), a physical precedent involving coerced consent following illegal arrest.

On the other hand, the fact that defendant is under arrest or in the imminent presence of a number of law enforcement officers does not demand a finding that his consent or actions were as a matter of law involuntary. Noland v. State, 178 Ga. App. 486, 488 (2) (343 SE2d 763) (1986); Welch v. State, 237 Ga. 665, 673 (9) (229 SE2d 390) (1976).

The question presented based upon the evidence is whether there was sufficient coercive effect in obtaining defendant’s signature so that use of his writing as exemplar violated the State constitutional prohibition against self-incrimination. No question exists as to the legality of the arrest or that, in fact, the signature was obtained as part of the routine administrative procedure at the jail. Defendant did not protest nor did he give any indication that he did not desire to sign the document. There is nothing to establish that the State used the process as a subterfuge to gain a sample of his handwriting or even at that time intended to use his signature for anything other than to verify on the card that the prints on the same card were his.

Just because the creation of the act is instigated or initiated by a person other than defendant himself does not automatically make it “compelled,” any more than undercover involvement in drug buying is per se entrapment. Nor, as appellant urges, does the absence of the Miranda-enumerated warnings when the arrestee is asked to sign the fingerprint card in accordance with standard administrative identification procedure constitute compulsion within the meaning of the state constitution. That is, the failure to give such warnings does not render compelled the giving of the signature. For one thing, these warnings expressly relate to statements, not acts.

In these circumstances, although defendant was under arrest at the time his signature was obtained, we conclude that defendant was not compelled to incriminate himself within the meaning of our constitutional provision. This is particularly true where the defendant’s act was not in an evidence-gathering context.

2. Defendant contends that the evidence did not sustain his conviction under count 1 of the indictment because there was no eyewitness testimony that defendant uttered the check.

“Uttering or delivering the writing is an essential element of forgery in the first degree whereas it is not an element of the lesser degree of forgery [forgery in the second degree—OCGA § 16-9-2].” Ward v. State, 123 Ga. App. 216 (1) (180 SE2d 280) (1971). Holmes v. State, 145 Ga. App. 125 (243 SE2d 328) (1978). An offer to pass a check to another person as a genuine instrument constitutes “uttering.” Walker v. State, 127 Ga. 48, 49 (56 SE 113) (1906). There must be a representation of genuineness but acceptance is not necessary. Taylor v. State, 128 Ga. App. 13 (195 SE2d 294) (1973); Curtis v. State, 80 Ga. App. 244, 246 (1) (55 SE2d 758) (1949).

There was no direct testimony that defendant uttered the check which was the subject of count 1 of the indictment. In McGowan v. State, 173 Ga. App. 438, 440 (326 SE2d 805) (1985), although the State’s expert witness testified that the forged entries on the check and the endorsement matched the handwriting exemplars given by defendant, the eyewitness could not identify defendant as the one who presented the check for cashing. This court reversed defendant’s conviction as to forgery in the first degree of that check because the State failed to prove an essential element of the offense.

“Forgery, like fraud or any other fact, may be proved by circumstantial evidence.” Stow v. Hargrove, 203 Ga. 735 (5) (48 SE2d 454) (1948). Willis v. Bozeman, 224 Ga. 729, 730 (1) (164 SE2d 841) (1968); Pratt v. State, 180 Ga. App. 389 (1) (348 SE2d 922) (1986). Here, unlike in McGowan, supra, defendant was named as the payee and his name, and not that of another, appeared as indorser. Defendant was identified by the handwriting expert who testified for the State as the person who indorsed the check. The West Side Liquor Store which cashed the check, as a matter of policy, required one offering a check and indorsing it to identify himself by means of a personal driver’s license, plus an address and phone number. Although circumstantial, the evidence was ample to convince a rational trier of fact of defendant’s guilt beyond a reasonable doubt as to the first count. Pratt v. State, supra; Minter v. State, 170 Ga. App. 801 (2) (318 SE2d 226) (1984). See also Mobley v. State, 101 Ga. App. 317, 321 (113 SE2d 654) (1960).

Decided October 4, 1988.

David B. Irwin, for appellant.

Robert F. Mumford, District Attorney, for appellee.

3. Defendant asserts the trial court failed to properly inform the jury of its possible verdicts because it only discussed the facts pertinent to count 1 and neglected to discuss those associated with count 2. While the portion of the charge referred to in defendant’s brief does indeed appear limited to count 1, an examination of the charge as a whole reveals that it did not confuse the jury as to the effect of each count or render them indistinguishable. In determining the correctness of an isolated excerpt of instructions given in criminal proceedings, the charge as a whole must be considered. Moses v. State, 245 Ga. 180, 182 (2) (263 SE2d 916) (1980); Collier v. State, 244 Ga. 553, 562 (4) (261 SE2d 364) (1979).

Judgment affirmed.

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


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    76710.
    CLEAVELAND et al. v. ALFORD et al.
    (373 SE2d 853)
   Deen, Presiding Judge.

The executrix of the estate of Robert W. Cleaveland, Sr., and Robert W. Cleaveland, Jr., appeal from a judgment entered on a jury verdict in favor of the Alford Brothers in the amount of $9,000 ($5,000 rental value of personal property wrongfully withheld, $1,000 punitive damages, and $3,000 attorney fees). After reviewing appellants’ motion for a new trial, the trial judge put appellees to an election: they accept either the grant of a new trial or write off the award of punitive damages. Appellees elected to write off the punitive damages.

1. Under OCGA § 9-12-8: “If a part of a verdict is legal and a part illegal, the court will construe the verdict and order it amended by entering a remittitur as to that part which is illegal and giving judgment for the balance.” Appellants based their motion for a new trial on the premise that punitive damages may be recovered only against a living person and not against the representative of a deceased person. Morris v. Duncan, 126 Ga. 467 (54 SE 1045) (1906). The trial court therefore correctly put the appellees to an election. Any error in the jury charge on punitive damages and any prejudice to appellants was corrected by the ruling of the court below on the motion for a new trial.

Decided October 4, 1988.

Hoke J. Thomas, Jr., for appellants.

J. Wayne Hadden, Sandra L. Heath, for appellees.

2. The evidence showed that the Alford brothers stored certain musical instruments and lighting equipment in a building which was sold to Robert W. Cleaveland, Sr., and his son. When the brothers asked for the return of their equipment, their request was refused and they were forced to file suit. On appeal, appellants contend that the trial court erred in permitting the issue of value, or rental cost, or worth of the instruments and equipment to be submitted to the jury, as the Alfords did not establish sufficient facts upon which a jury could base a determination of value, or rental cost, or worth.

The appellees presented evidence through the testimony of Paul Patten, an audio-video engineer and former retailer of musical equipment, who testified that he had personal knowledge of the equipment and as to the rental value of such equipment. The appellees offered no evidence to refute this witness’s assessment of the rental value of the instruments and related equipment.

A witness may testify as to the value of an item if he has some knowledge, experience or familiarity with the property in question or similar property. Ricker v. Hopkins Chevrolet, 147 Ga. App. 358 (248 SE2d 720) (1978). Patten’s testimony that he had personal recollection of the items in question and that he had sold and rented similar items for approximately ten years laid the requisite foundation for the reasons he formed his opinion as to value. Toney v. Johns, 153 Ga. App. 880 (267 SE2d 298) (1980). Opinion evidence is for the jurors’ benefit, and they can take into account the witness’s knowledge or lack thereof of the facts about which he testifies. “Questions of value are peculiarly for the determination of the jury, where there is any data in the evidence upon which the jury may legitimately exercise their own knowledge and ideas. [Cit.]. After a witness has given [his] basis for opinion evidence as to value it is up to the jury to determine its weight.” Toney, at 882. We find no error.

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: Banke, Presiding Judge.

text:
    77245.
    VIDEO POWER, INC. et al. v. FIRST CAPITAL INCOME PROPERTIES, INC.
    (373 SE2d 855)
   Banke, Presiding Judge.

The appellee sued the appellants, Video Power, Inc., and Robert A. Powers, to recover payments allegedly due under a lease agreement. Powers had purportedly signed the lease in his representative capacity as president of the named lessee, Video Power, Inc. of Augusta, which is evidently a separate entity from the appellant corporation, Video Power, Inc. The latter corporation had apparently assumed the rights and obligations of Video Power, Inc. of Augusta under the lease pursuant to a document subsequently executed by Powers as president of both companies.

Powers defended the action on the ground that he had signed the lease solely in a representative capacity and thus had not obligated himself personally. The trial court granted summary judgment to the appellee on this issue, based on undisputed evidence showing that the named lessee (Video Power, Inc. of Augusta) had not yet been issued a certificate of incorporation by the Secretary of State at the time Powers signed the lease on its behalf. This appeal is from a judgment subsequently entered against the appellants jointly and severally in the amount of $29,395.15, following a non-jury trial on the issue of damages. Video Power, Inc., is only nominally designated as an appellant, no issue having been raised concerning its liability. Held:

1. The judgment against Powers was authorized pursuant to OCGA § 14-2-23, which provides as follows: “All persons who assume to act as a corporation before the Secretary of State has issued the certificate of incorporation to the incorporator or incorporators or his or their attorney shall be jointly and severally liable for all debts and liabilities incurred or arising as a result thereof.”

The trial court properly rejected Powers’ defense that the doctrine of “estoppel by corporation” precluded a recovery against him personally based merely on the non-existence of the corporate principal at the time the lease agreement was signed. The doctrine of estoppel by corporation is set forth at OCGA § 14-5-4, as follows: “The existence of a corporation claiming a charter under color of law cannot be collaterally attacked by persons who have dealt with it as a corporation. Such persons are estopped from denying its corporate existence.” Although the Official Comment to OCGA § 14-2-23 specifies that the latter Code section was not intended to lessen the applicability of the estoppel by corporation doctrine, this court has held in no uncertain terms that the doctrine does not permit an individual to escape liability for obligations undertaken as an agent for a corporation which has not yet been “registered” (i.e., issued a certificate of incorporation) by the Secretary of State. See Don Swann Sales Corp. v. Echols, 160 Ga. App. 539, 541 (287 SE2d 577) (1981); Echols v. Vienna Sausage Mfg. Co., 162 Ga. App. 158 (2), 160 (290 SE2d 484) (1982). Compare Goodwyne v. Moore, 170 Ga. App. 305 (316 SE2d 601) (1984). It follows that the trial court did not err in granting summary judgment to the appellee on this issue.

2. Appellant Powers further contends that the trial court erred in. failing to consider the effect of a “certificate of estoppel” which, he claims, he executed in connection with the assignment of the original lessee’s rights and obligations under the lease agreement to Video Power, Inc. However, it does not appear that any argument based on this document was asserted in the trial court; and if the document is contained in the record before us, its location therein has not been disclosed by Powers; nor, in fact, have the appellants provided this court with any specific references to the record. See generally Court of Appeals Rule 15 (c) (3) (i). Consequently, this contention presents nothing for review.

Decided October 4, 1988.

Gene Geary, Murl E. Geary, for appellants.

Gary Wisenbaker, for appellee.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


author: Pope, Judge.

text:
    76640.
    NATIONAL SECURITY FIRE & CASUALTY COMPANY v. EUREKA FEDERAL SAVINGS & LOAN ASSOCIATION.
    (373 SE2d 811)
   Pope, Judge.

Defendant National Security Fire & Casualty Company (hereinafter “National”) issued a policy of insurance on the residential property at issue in this case. The owner issued a deed to secure debt to plaintiff Eureka Federal Savings & Loan Association (hereinafter “Eureka”) as mortgagee. Eureka was originally listed as the mortgagee in the insurance policy. Pursuant to the request of the independent insurance agent, Eureka’s servicing agent, SEMCO, was substituted as the named mortgagee in the policy. When the owner defaulted on the loan, Eureka foreclosed and bought the property for itself. Subsequent to the foreclosure and sale, the property was destroyed by fire. Eureka brought an action against National for proceeds pursuant to the mortgagee clause of the insurance policy. Summary judgment was entered in favor of Eureka on the issue of liability and the parties stipulated to the amount of damages. National appeals the judgment entered in favor of Eureka.

The insurance policy involved in this case included a mortgagee clause, known as a New York standard mortgagee clause. On appeal, National contends that Eureka is not the real party in interest to bring a claim pursuant to the mortgagee clause because SEMCO was substituted as the named mortgagee. National also contends that even if Eureka is the real party in interest, it no longer has an insurable interest pursuant to the policy because it is now the owner and not the mortgagee of the property.

1. National’s first two enumerations of error address the issue of whether Eureka is the real party in interest for bringing a claim pursuant to the mortgagee clause of the policy. The record contains sworn affidavits which establish that SEMCO is Eureka’s servicing agent for the collection of loan payments on accounts issued by Eureka to homeowners in the metropolitan Atlanta area. The undisputed evidence shows SEMCO is not the mortgagee of the subject property and has no interest in the insured property or the proceeds of the insurance policy. Even though SEMCO was improperly named as mortgagee in the policy, it has no interest in this matter and would not be the real party in interest even if the suit had been brought in its name. “[T]he concept [of real party in interest] is summarized as follows: An action shall be prosecuted in the name of the party who, by the substantive law, has the right sought to be enforced.” 3A Moore’s Fed. Prac. 17-42, ¶ 17.07. Accord Rigdon v. Walker Sales & Svc., 161 Ga. App. 459 (2f) (288 SE2d 711) (1982). The record shows Eureka is the real party in interest for bringing the claim.

2. The remaining enumerations of error address the issue of whether Eureka has an insurable interest pursuant to the mortgagee clause of the policy. The mortgagee clause contained within the subject policy is identical to the clause quoted by the Georgia Supreme Court in Federal Nat. Mtg. Assn. v. Hanover Ins. Co., 243 Ga. 609 (255 SE2d 685) (1979). In both cases, the policy required the mortgagee to notify the insurer “of any change of ownership or occupancy or increase of hazard, which shall come to the knowledge of said mortgagee . . . .” In both cases, the policy nevertheless provided “this insurance . . . shall not be invalidated by any . . . foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property . . . .” As in Fed. Nat. Mtg. Assn., the insurer here argues that the mortgagee is no longer an insured under the mortgagee clause when the mortgagee buys in the property for itself and thus becomes the owner. This argument was rejected by the Georgia Supreme Court. “The policy language protecting the mortgagee despite foreclosure or other proceedings or notice of sale relating to the property and despite change of title or ownership necessarily implies that the interest of the entity identified as the mortgagee continues regardless of whether the entity’s status as mortgagee changes. Buying the property in after sale under power in the deed is not a ‘change of ownership’ such as requires notice to the insurer under the policy. The result of such proceedings is an enlargement or increase of the mortgagee’s interest rather than a ‘change of ownership.’ ” Id. at 610. Eureka’s interest in the mortgagee clause of the policy survived despite the fact that the property had been foreclosed and bought in by Eureka.

Decided September 20, 1988

Rehearing denied October 5, 1988.

R. Clay Porter, Grant B. Smith, for appellant.

James M. Anderson III, for appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: Deen, Presiding Judge. Carley, Judge,

text:
    76843.
    DORSEY v. THE STATE.
    (374 SE2d 102)
   Deen, Presiding Judge.

Tommy W. Dorsey appeals from a jury verdict and judgment finding him guilty of distributing obscene materials in violation of OCGA § 16-12-80.

1. Appellant contends that it was error for the trial judge to overrule his objection and motion for mistrial when the prosecutor in his closing argument read law to the jury contrary to the ruling in Conklin v. State, 254 Ga. 558 (10) (331 SE2d 532) (1985). The trial transcript shows that the court declined to give certain requested charges of both the prosecution and the defense defining “prurient interest,” stating that while it would charge only the statutory definition contained in OCGA § 16-12-80 (b) (1), “[b]oth sides are allowed to expand in their definitions.” The State argues that the language objected to was approved by this court in Spry v. State, 156 Ga. App. 74 (5) (274 SE2d 2) (1980), and that while the prosecutor did refer to the fact that it came from “a Supreme Court case,” no case was cited by name or otherwise identified. After objection was made and appellant’s motion for mistrial was denied, the State was admonished to limit its argument to what it expected the judge to charge.

“In assessing harm, as Conklin pointed out, ‘(c)ounsel have every right to refer to applicable law during closing argument (i.e., law that the court is going to give in charge).’ [Cit.] ... ‘It is counsel’s right to state his legal position to the jury; this right is indispensable to an intelligent presentation of his case.’ Error flows from a misstatement of the law which may tend to mislead the jury. Defendant has failed to point out wherein there was such misstatement of the law and thus did not show harm.” Beck v. State, 181 Ga. App. 681, 683 (3) (353 SE2d 610) (1987). Moreover, defense counsel was allowed to give his own definition of prurient interest at least five times in closing argument, and discussed at some length the “unwilling recipient” aspects of Miller v. California, 413 U. S. 15 (93 SC 2607, 37 LE2d 419) (1973), an issue not involved here. Since the jury also heard the trial court’s instructions, any error was balanced out. “ ‘In the absence of a demonstration that a mistrial was essential to preservation of a defendant’s right to a fair trial, it is not an abuse of discretion to deny a motion for a mistrial even where no curative instructions were given. [Cit.]’ [Cit.]” Collins v. State, 183 Ga. App. 243, 244 (3) (358 SE2d 876) (1987).

2. Appellant asserts as error in the prosecutor’s argument, the statement: “I could go on about the experts in this case and I think their testimony was preposterious [sic]. I feel like if anybody, any member of my family, who had any problem and was exposed to this type of material by anybody who is holding himself out as a, some sort of psychotherapist, I believe that would be grounds for malpractice. I don’t think this material in any shape —” Upon defense counsel’s interposition that the prosecutor’s personal opinion was clearly improper and request for cautionary instructions that his remarks were “unethical,” the trial judge admonished the prosecutor about injecting his own opinions and views on matters not in evidence, and denied the “motion.” No motion for mistrial was made at this time, but appellant nevertheless insists that the court’s actions were insufficient to cure the harm.

“We reject this argument because it is well-settled that a sustained objection to improper argument of counsel cannot serve as the basis for reversal unless it is contemporaneous with a denied motion for mistrial, denied request to strike or denied request for curative instructions. . . . [Cits.]” Keen v. State, 164 Ga. App. 81, 88 (7) (296 SE2d 91) (1982). “If a mere objection is overruled and defense counsel makes no further request for any curative action, the only authorized argument on appeal would be that the failure to sustain the objection was erroneous. ‘In no case will the trial judge’s ruling be reversed for not going further than requested.’ (Emphasis supplied.) [Cit.] If, however, the objection to the State’s argument is sustained, the objection will not authorize defense counsel to assert on appeal that the trial court erred in failing to take any additional, unrequested curative actions.” Hall v. State, 180 Ga. App. 881, 883 (3) (350 SE2d 801) (1986). While it is not entirely clear from the transcript what “motion” the trial court was purporting to deny, he did admonish the prosecutor to desist from the argument objected to, and there was no request for additional curative action nor any motion for mistrial. “ ‘A motion for mistrial not made contemporaneously with the alleged misconduct is not timely. [Cit.]’ [Cit.] Therefore, this enumeration of error cannot be addressed on appeal.” Miller v. State, 184 Ga. App. 202-203 (1) (361 SE2d 63) (1987).

3. Appellant protests the sustaining of the State’s objections to questions posed during his direct examination seeking to establish that he did not know the obscene nature of the material he was distributing, as required by OCGA § 16-12-80 (a). However, the Supreme Court of the United States has determined that such a showing of scienter is not demanded. “It is constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of the materials he distributed, and that he knew the character and nature of the materials. To require proof of a defendant’s knowledge of the legal status of the materials would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law.” Hamling v. United States, 418 U. S. 87, 123 (94 SC 2887, 41 LE2d 590) (1974); Sewell v. State, 238 Ga. 495, 496 (4) (233 SE2d 187) (1977).

Appellant did testify on at least one occasion that he did not knowingly violate the statute he was charged under and took reasonable steps not to distribute obscene materials. He also testified that the material he distributed consisted of X-rated videos and magazines; that he screened them before they were sold or rented and was aware that they depicted explicit sexual acts, including acts of sodomy in violation of the law of Georgia; but that he did not personally feel that these materials were obscene. This was sufficient for conviction because the applicable test under OCGA § 16-12-80 (a) is whether the defendant “has knowledge of facts which would put a reasonable and prudent person on notice as to the suspect nature of the material. . . .” See Dyke v. State, 232 Ga. 817, 822 (209 SE2d 166) (1974); Bohin v. State, 156 Ga. App. 206 (1) (274 SE2d 592) (1980); Underwood v. State, 144 Ga. App. 684 (4) (242 SE2d 339) (1978). Whether or not the Appellate Court should view the alleged “suspect nature of the material” with regard to this enumeration of error is debatable. We have done so, however, out of an abundance of caution. We have viewed the video cassette, “Private Thighs,” and we have reviewed the two magazines, “Fuck Toy,” and “Suck 2 Dicks.” Suffice it to say, they contained a combination of all types, descriptions, and positions of sexual acts, about which we can say: “This case presents about the most horrible and disgusting [obscenity materials] we have been called upon to review. ...” Hendon v. State, 10 Ga. App. 78 (72 SE 522) (1911). The evidence was more than sufficient to justify the charge given by the trial court.

4. The trial court did not err in failing to charge the definition of obscene materials contained in OCGA § 16-12-80 (b) (3) (C), (D) and (E), as none of the acts described therein was depicted in the materials appellant was accused of distributing. The jury was properly instructed on the remaining definitions and found that the materials involved here were obscene because they appealed to the prurient interest of the average person as set forth in OCGA § 16-12-80 (b) (1); that they lacked serious literary or other value as contemplated in subsection (b) (2); and that they depicted the conduct prohibited in OCGA § 16-12-80 (b) (3) (A) and (B). Thus the definition of obscene materials given by the trial court was complete as it related to this case, and the further definitions were irrelevant to appellant’s guilt.

5. Appellant’s enumeration of error in regard to the charge allowing the jury to “piece meal” its consideration of the evidence by finding that any one of the exhibits was obscene in order to authorize a verdict of guilty is likewise without merit. The court correctly instructed the jury that the “work” itself must be taken as a whole in determining its obscenity, as explained by the Supreme Court in Hunter v. State, 257 Ga. 571.(2) (361 SE2d 787) (1987), (i.e., that they could not look at just one part of the magazine or one part of the video in making their determination). Hunter does not require the State to frame its accusation in three separate counts for the jury to consider each exhibit individually, as argued by appellant. Thus the trial court also correctly charged the jury that if it found “that any one of the exhibits, the movie or the two magazines are obscene, then you will be authorized to find the defendant guilty.” Playmate Cinema v. State, 154 Ga. App. 871 (5) (269 SE2d 883) (1980). It follows that we find no grounds for reversal.

Judgment affirmed.

Carley and Sognier, JJ., concur specially.

Carley, Judge,

concurring specially.

In Division 1, the majority opinion addresses appellant’s contention that the trial court erred in failing to grant a mistrial when, contrary to the explicit ruling of our Supreme Court in Conklin v. State, 254 Ga. 558 (10) (331 SE2d 532) (1985), counsel for the State was allowed to refer to language recited to the jury as coming from “a Supreme Court case.” As pointed out in the majority opinion, the language the prosecutor utilized actually was included in the opinion of this Court in Spry v. State, 156 Ga. App. 74 (5) (274 SE2d 2) (1980). The majority relies primarily upon a decision of this Court interpreting Conklin and states as follows: “ ‘In assessing harm, as Conklin pointed out, “[c]ounsel have every right to refer to applicable law during closing argument (i.e., law that the court is going to give in charge).” [Cit.] . . . “It is counsel’s right to state his legal position to the jury; this right is indispensable to an intelligent presentation of his case.” Error flows from a misstatement of the law which may tend to mislead the jury. Defendant has failed to point out wherein there was such misstatement of the law and thus did not show harm.’ Beck v. State, 181 Ga. App. 681, 683 (3) (353 SE2d 610) (1987).” (Emphasis supplied.) (Majority opinion, page 695.)

Applying Beck to the facts of this case, it is my opinion that the argument was improper. As indicated by the emphasized language from Beck, counsel’s right to refer to applicable law during closing argument is limited to recitation of “law that the court is going to give in charge.” In this case, the challenged part of appellee’s counsel’s argument came from the State’s request to charge No. 6, which, during a pre-charge conference, the trial court expressly declined to give. Thus, as the Conklin court said, “[t]here is no justification, . . . for allowing an attorney to supplement the court’s charge by reading, in the jury’s presence, law that the court is not going to charge.” (Emphasis supplied.) Conklin v. State, supra, 571. Counsel for the State in this case did just what Conklin said he should not be allowed to do. I cannot agree with the majority that because “defense counsel was allowed to give his own definition of prurient interest . . . any error was balanced out.” (Majority opinion, p. 695). Defense counsel did not attempt to “read law,” and there was no similar objection to defendant’s argument. I know of no authority for a holding that what otherwise constitutes error can be “balanced out” by reliance upon conduct of the other party to which no objection is made.

Decided September 19, 1988

Rehearing denied October 5, 1988

Roger J. Dodd, for appellant.

Andrew Prather II, Solicitor, for appellee.

However I agree with the majority that the trial court did not commit reversible error in failing to grant a mistrial. After the second attempt of the prosecuting attorney to read law, and following the colloquy between the court and counsel, the trial court stated as follows: “I’ll overrule the motion for mistrial. I will admonish counsel to confine your arguments, if you will, to what you expect that the Judge will charge and logical extensions and arguments on those points.” The attorney for the defendant then responded “thank you,” and did not renew his motion for mistrial or make any further objection. “The giving of the curative instructions was not followed by a renewed motion for a mistrial. ‘The denial of a motion for mistrial is not subject to review when the motion is not renewed following corrective instructions. [Cits.]’ [Cit.]” Harper v. State, 182 Ga. App. 760, 764 (8) (357 SE2d 117) (1987). See also Ward v. State, 252 Ga. 85, 89 (2) (311 SE2d 449) (1984); Collins v. State, 183 Ga. App. 243, 244 (3) (358 SE2d 876) (1987).

I am authorized to state that Judge Sognier joins in this special concurrence.


author: Sognier, Judge.

text:
    76840.
    SAPP v. THE STATE.
    (374 SE2d 114)
   Sognier, Judge.

In Sapp v. State, 184 Ga. App. 527 (362 SE2d 406) (1987), we affirmed the judgment convicting Jake Sapp of violation of OCGA § 40-6-391 (a) (4) (the per se offense of operating a moving vehicle while having 0.12 percent or more by weight of alcohol in the blood), but remanded the case with direction that the trial court conduct a hearing on Sapp’s pre-trial motion to suppress in which Sapp asserted no probable cause existed for his arrest. Id. at 531. The trial court ruled adversely to Sapp’s motion and Sapp appeals pursuant to this court’s express grant. Id.

Wayne Howell, a Georgia State Patrol trooper and the sole witness at the hearing, testified that on the date in question, he and a fellow officer were conducting a road block just inside the Candler County line, with one trooper on each side of the road to check the driver’s licenses of the drivers of all vehicles travelling on the road, without any discrimination or selection among the people they stopped. When appellant, in his turn, arrived at the road block and produced his driver’s license, Trooper Howell smelled an odor of alcohol about him and asked appellant if he had been drinking. Appellant responded that he had had “a couple of beers,” at which point Howell asked him to pull his vehicle over to the shoulder and step back to the rear of the vehicle. Howell observed appellant exit his vehicle and noted that appellant was unsteady on his feet, that there was an odor of alcohol about him, and that his eyes were red. Howell, who testified he was a twelve-year veteran of the Patrol, had attended lectures, discussions and other schooling relating to crimes involving intoxicated drivers, and had apprehended over a hundred persons for driving intoxicated, stated that after talking to appellant for a few moments, he placed appellant under arrest.

Appellant contends the State failed to carry its burden of proof in establishing probable cause to stop and search appellant when it failed to introduce any evidence concerning the manner in which the road block at which appellant was arrested was implemented and conducted. “ Tt has been held that police officials may set up highway roadblocks for the purpose of requiring motorists to display their driver’s license, and that such a practice does not invade their right to use the public ways free from unreasonable and unwarranted interception. Nor does such a practice constitute an unlawful arrest or restraint or an illegal search contrary to the United States Constitution.’ [Cit.] ‘The state can practice preventative therapy by reasonable road checks to ascertain whether man and machine meet the legislative determination of fitness. . . .’ [Cits.] . . . On motion to suppress evidence, the trial judge sits as the trior of the facts, hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. [Cit.] The trial judge was authorized to find from the evidence that the roadblock in question was valid and was used primarily to perform routine traffic checks.” State v. Swift, 232 Ga. 535-536 (1) (207 SE2d 459) (1974). See also State v. Golden, 171 Ga. App. 27, 29 (2) (318 SE2d 693) (1984). We find the evidence of a routine license check sufficient to support the validity of the stop, and the existence of probable cause thereafter to support the arrest of appellant for driving under the influence of alcohol. Accordingly, the trial court did not err by denying appellant’s motion to suppress.

Decided October 5, 1988.

Alan P. Layne, for appellant.

William J. Neville, Jr., Solicitor, for appellee.

Judgment affirmed.

Deen, P. J., and Corley, J., concur.


text:
    77452.
    RAGIN v. THE STATE.
    (373 SE2d 856)
    Decided October 5, 1988.

      Davis Cohen, for appellant.

      Glenn Thomas, Jr., District Attorney, Richard H. Taylor, Assistant District Attorney, for appellee.
   Pope, Judge.

Appellant was arrested for trafficking in cocaine after a search of the car he was driving uncovered 8.15 pounds of cocaine. Following a hearing, the trial court set bail in the amount of $300,000, which appellant contends was excessive. We disagree and find that the trial court did not abuse its discretion in setting bail in the amount of $300,000. Accord Sirmons v. State, 243 Ga. 664 (256 SE2d 350) (1979); Reid v. Perkerson, 207 Ga. 27 (4) (60 SE2d 151) (1950); see also OCGA § 17-6-1 (a) & (f). See generally Lathan v. State, 188 Ga. App. 439 (373 SE2d 388) (1988).

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    76560.
    GOSS v. MATHIS.
    (373 SE2d 807)
   Pope, Judge.

Plaintiff Edward M. Goss entered into an agreement with defendant Charlie G. Mathis for Mathis to construct a lake on Goss’s property. Goss brought suit against Mathis alleging, inter alia, that the agreement was breached and the work was not completed. Mathis answered and filed a counterclaim, alleging the plans for the lake were revised during construction so as to enlarge the lake. Mathis prayed for damages in quantum meruit for the additional labor and material supplied by him in excess of that which was required under the original agreement. The jury returned a verdict in favor of Mathis on his counterclaim in the amount of $3,250. Goss appeals on the ground the trial court erred in admitting into evidence two documents prepared by Mathis as an estimate of his expenses and the value of his labor.

We agree with Goss that the documents in question were not admissible as business records pursuant to OCGA § 24-3-14. To be admissible pursuant to said statute, a preliminary showing must be made that the record “was made in the regular course of . . . business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.” OCGA § 24-3-14 (b). Mathis, who was an independent contractor for his services as a bulldozer operator, testified it was his regular practice to record his hours of operation and expenses on a daily calendar. However, on this job he did not keep a contemporaneous record of his hours or expenses because he had contracted with Goss to perform the work for a set sum of $10,000. Mathis did not attempt to reconstruct the hours he worked and the expenses he sustained in constructing the lake during August through November 1985 until three to four months after Goss had Mathis arrested in December 1985 (for the alleged conversion and removal of the bulldozer from Goss’s property). Thus, Mathis’s testimony established that the documents in question were not made in the regular course of his business nor was it his regular practice to record his labor and expenses in such a manner. At most, these documents were worksheets prepared in anticipation of litigation. They could properly be used to refresh the recollection of the witness, but were not themselves admissible as evidence. See, e.g., Reach Out, Inc. v. Capital Assoc., 176 Ga. App. 585 (1) (336 SE2d 847) (1985); Growth Properties of Fla. v. Wallace, 168 Ga. App. 893 (3) (310 SE2d 715) (1983); Nationwide Mut. Fire Ins. Co. v. Rhee, 160 Ga. App. 468 (10) (287 SE2d 257) (1981); Woodward v. City Council of Augusta, 117 Ga. App. 857 (162 SE2d 304) (1968); Maryfield Plantation v. Harris Gin Co., 116 Ga. App. 744 (4) (159 SE2d 125) (1967).

Decided September 15, 1988

Rehearing denied October 6, 1988

David E. Ralston, for appellant.

Robert K. Ballew, for appellee.

Nevertheless, an appellant must show harm as well as error to prevail on appeal from the erroneous admission of documentary evidence. Martini v. Nixon, 185 Ga. App. 328 (6) (364 SE2d 49) (1987); Pope v. Propst, 179 Ga. App. 211 (10) (345 SE2d 880) (1986). On cross-examination, it was clearly established that the lists in question were constructed from Mathis’s memory several months after the actual work was performed. In announcing his ruling to admit the documents the trial court stated: “I’m going to let it go in with the understanding that the witness has testified that it is an estimate based upon fuel use as to [sic.], and let the jury arrive at its answer.” The documents in question estimated the value of Mathis’s labor at $28,200. Of this total value, Mathis testified the value of the additional work to be approximately $6,350. The fact that the jury returned a verdict of only $3,250 shows it did not rely upon the written estimate contained within the documents in question. Thus, we find no reversible error.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: Sognier, Judge. Deen, Presiding Judge,

text:
    76718.
    BACON v. NEWS-PRESS & GAZETTE COMPANY.
    (373 SE2d 797)
   Sognier, Judge.

Earl Bacon brought suit against News-Press & Gazette Company, d/b/a WSAV-TV, seeking to hold the television station liable under the doctrine of respondeat superior for damages he suffered as the result of an altercation between him and two employees of the television station, Michelle Mears and Daryl Holder. WSAV moved for summary judgment as to its liability for Holder’s actions; the existence of questions of fact regarding its liability for the actions taken by Mears was conceded. The trial court granted the motion for summary judgment in favor of the television station and Bacon appeals.

The record reveals that Holder, a photographer and camera man for appellee, visited the scene of a fire at Consolidated Container Corporation, recorded the fire, then returned subsequently with Mears, a television reporter for appellee, so that she could complete the coverage of the news story. Mears and Holder obtained permission from a police officer to enter the property and were proceeding thereon when Holder, at Mears’ request, left to get a sweater for her from her vehicle. During his absence, Mears encountered appellant, an employee at Consolidated Container. Mears asserted in her deposition that appellant, who did not identify himself or his position to her, first shouted obscenities at her then pushed and shoved her back repeatedly although she had identified herself and her job to him and told him she had the police officer’s permission to be on the property. Mears stated she struck appellant with her hand after he had shoved her about five times, at which point she noticed a second man with a sawed-off shotgun aiming the weapon at her head. Holder, by deposition, stated that as he was returning with the sweater, he heard Mears screaming his name for help. Upon arriving at the scene, he observed Mears being manhandled by one individual (later identified as appellant) while a second man loaded and pointed a double-barrel shotgun at her. Holder drew the pistol he was carrying and ordered the men to stop; the police arrived at the scene within moments and escorted Mears and Holder away. In sharp contrast to this evidence, appellant stated in his deposition that after Mears deliberately disregarded his warnings and requests to leave the property, he stood in front of her and held out his arms to stop her from trespassing, but that she persisted in trying to get around him and subsequently slapped him without provocation. According to appellant, Mears then turned and ran away but Holder, who had just arrived on the scene, put a pistol in appellant’s face and screamed obscenities at him. The evidence is uncontroverted that appellant did not confront Mears for personal reasons but did so to prevent her from accessing the fire scene, where she was going in order to obtain her news story.

“The question whether or not the servant at the time of an injury to another was acting in the prosecution of his master’s business and in the scope of his employment is for determination by the jury, except in plain and indisputable cases.” Jump v. Anderson, 58 Ga. App. 126, 128 (197 SE 644) (1938). We agree with appellant that questions of fact are raised by the evidence of record whether Holder’s action was “entirely disconnected from” the business of appellee, his employer, see Jump, supra, or whether it was an attempt on Holder’s part to prevent appellant from thwarting Mears’ pursuit of the news story, so as to constitute an act in furtherance of the business of appellee. See generally Lewis v. Millwood, 112 Ga. App. 459, 460 (145 SE2d 602) (1965). The fact that Holder’s action may have been mingled with personal motives or purposes does not automatically entitle appellee to summary judgment, since “ ‘the presence of [a personal] motive or purpose in the servant’s mind does not affect the master’s liability, where that which the servant does is in the line of his duty and in the prosecution of the master’s work.’ It was at least a jury question as to whether or not there was a deviation, and, if so, whether the deviation was so slight as not to affect the master’s responsibility for the servant’s act.” Jump, supra at 129.

Appellee argues that the existence of a station policy forbidding employees from carrying weapons on assignment (a policy of which Mears testified she had never been advised) relieves it of liability for Holder’s alleged tortious behavior. “ ‘However, so long as the servant is acting within the scope of his employment, the [employer] is liable, though the negligent act was not necessary to the performance of his duties, or though it was not expressly authorized or known to the employer, or was contrary to his instructions. ... If the act is within the class [of activities performed on behalf of the employer], the master is bound, although the servant is forbidden to perform the particular act. If not within the class, the master is not bound.’ [Cit.]” (Emphasis supplied.) Evans v. Caldwell, 52 Ga. App. 475, 478 (184 SE 440) (1936), aff’d 184 Ga. 203 (190 SE 582) (1937). The existence of questions of fact regarding whether Holder’s act was in prosecution of his employment thus renders inappropriate the grant of summary judgment in favor of appellee on the basis of the asserted station policy. Finally, we note that, in view of evidence indicating Holder’s action was in response to a situation in which Mears was being physically assaulted by appellant while another man was pointing a double-barrel shotgun at her, there is a question of fact whether Holder’s action constituted the type of “independent voluntary act” required to exempt an employer from liability for the tortious acts of its servant. See Broome v. Primrose Tapestry Mills, 59 Ga. App. 70, 74 (200 SE 506) (1938); Jump, supra at 128.

Accordingly, in the absence of plain and indisputable facts, the trial court’s grant of summary judgment in favor of appellee must be reversed. See generally Odom v. Hubeny, Inc., 179 Ga. App. 250, 251-252 (1) (345 SE2d 886) (1986).

Judgment reversed.

Birdsong, C. J., Banke, P. J., Carley, Pope, Benham, and Beasley, JJ., concur. Been, P. J., and McMurray, P. J., dissent.

Deen, Presiding Judge,

dissenting.

“Under the theory of respondeat superior, an employer is liable for a tort committed by his employee only where the injury is inflicted in the course of the employment and not because of some private and personal act of the employee. [Cits.]” Odom v. Hubeny, 179 Ga. App. 250, 251 (345 SE2d 886) (1986); OCGA § 51-2-2, generally. “The mere fact that the assault occurred during a time of ostensible employment ... is not dispositive on the question of scope of employment. [Cit.]” Southern Bell Tel. &c. Co. v. Sharara, 167 Ga. App. 665, 667 (307 SE2d 129) (1983). In this case, it was not a situation where an employee carried out his employer’s business overzealously, but rather one where the employee acted out of “private and personal” concern for the safety of his friend/co-worker. Bacon’s deposition testimony failed to contradict Holder’s testimony that clearly indicated he acted out of this concern to rescue Mears, and not out of concern to cover a news story. The trial court thus properly granted partial summary judgment for WSAV-TV, and I must respectfully dissent from the majority opinion’s contrary conclusion.

Decided September 9, 1988

Rehearing denied October 6, 1988

Joseph B. Bergen, Frederick S. Bergen, for appellant.

Dana F. Braun, Shari M. Sigman, for appellee.

I am authorized to state that Presiding Judge McMurray joins in this dissent.


text:
    76820, 76821.
    WHITAKER et al. v. ZIRKLE et al.
    (374 SE2d 106)
   Pope, Judge.

In May 1978, Sarah E. Zirkle became suspicious of a mole on her back and visited her physician to have it removed and analyzed. The tissue was examined by Dr. James Q. Whitaker, a pathologist, who diagnosed it to be non-malignant. In reliance upon the favorable diagnosis, Mrs. Zirkle sought no further treatment. The record shows Mrs. Zirkle remained free of any cancer symptoms until May or June of 1985 when she noticed bruises and nodules on her body. A biopsy of tissue from the affected area revealed metastatic cancer. A re-examination of the tissue sample taken in 1978 revealed the presence of malignant melanoma cancer cells. Mrs. Zirkle’s treating physician diagnosed her condition as metastatic melanoma originating from the site of the mole removed in 1978. Mrs. Zirkle underwent treatment for the cancer but eventually died.

On May 7, 1986, within one year from the diagnosis of cancer, Mrs. Zirkle and her husband, Raymond Zirkle, filed separate actions for alleged medical malpractice against Dr. Whitaker, the professional association of which he is a member, the Hospital Authority of Houston County and The Medical Center of Houston County. After Mrs. Zirkle’s death her complaint was amended to substitute as plaintiff Raymond Zirkle, individually and as Executor of the Estate of Sarah E. Zirkle. Mr. Zirkle’s separate complaint, which originally alleged loss of consortium, was amended to add a claim for wrongful death. All defendants jointly filed a motion for summary judgment in the action brought on behalf of the estate (Case No. 76821) on the ground the claim for the decedent’s pain and suffering was barred by the applicable statute of limitation. An identical motion for partial summary judgment was filed in the action brought by Raymond Zirkle (Case No. 76820) in regard to the claim for loss of consortium. Defendants did not assert a statute of limitation defense to that action’s claim for wrongful death. The Medical Center of Houston County (hereinafter “Hospital”) filed a motion for summary judgment in both actions contending it was not liable for the acts or omissions of Dr. Whitaker because he was not an agent or employee of the Hospital. All motions were denied and defendants brought these appeals, which were consolidated for consideration.

1. At the time Mrs. Zirkle’s cancer was diagnosed, Georgia law permitted a patient to bring a medical malpractice claim within two years from the date of the injury caused by an alleged negligent act. See Shessel v. Stroup, 253 Ga. 56 (316 SE2d 155) (1984). Subsequently, the applicable period of limitation was changed by the legislature to include a period of ultimate repose for medical malpractice claims beyond which no action may be brought. Pursuant to OCGA § 9-3-71 (b), no action for medical malpractice may be brought after five years from the date of the alleged negligent act even if the injury arising from that act did not occur within five years. However, in the non-codified Section 3 of the 1985 Act amending the applicable statute of limitation, the legislature provided a grace period for existing actions which would otherwise be cut off by the statute in order to save it from the prohibition against retrospective application. “No action for medical malpractice which, prior to July, 1985, has been barred by the provisions of Title 9, relating to actions, shall be revived by this Act. No action for medical malpractice which would be barred before July 1, 1986, by the provisions of this Act but which would not be so barred by the provisions of Title 9 in force immediately prior to July 1, 1985, shall be barred until July 1, 1986.” Ga. L. 1985, pp. 556, 557 § 3. Thus, the plaintiffs involved in these appeals would be permitted to bring an action for medical malpractice until July 1, 1986, provided their claim was not already barred by the previous law. See Hill v. Fordham, 186 Ga. App. 354 (2) (367 SE2d 128) (1988).

The critical issue is when did Mrs. Zirkle’s injury occur. In most misdiagnosis cases, the injury begins immediately upon the misdiagnosis due to the pain, suffering or economic loss sustained by the patient from the time of the misdiagnosis until the medical problem is properly diagnosed and treated. See Edmonds v. Bates, 178 Ga. App. 69 (342 SE2d 476) (1986). The misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis. See Daughtry v. Cohen, 187 Ga. App. 253 (1) (370 SE2d 18) (1988). However, in this case the plaintiff suffered no further symptoms of cancer until shortly before cancer was properly diagnosed in 1985, some seven years after the initial misdiagnosis. Plaintiffs do not allege the misdiagnosis caused Mrs. Zirkle to have cancer; the basis of plaintiffs’ claims is that she had cancer all along. The injury complained of is the subsequent metastasis of cancerous cells which remained at the site where the mole was removed. The subsequent metastasis allegedly would not have occurred if the cancer had been properly diagnosed and treated at the time of the original biopsy. When an injury occurs subsequent to the date of medical treatment, the statute of limitation commences from the date the injury is discovered. Shessel v. Stroup, supra. Expert testimony submitted by plaintiffs creates an issue as to whether the melanoma which was present in 1978 was localized and unmetastasized. If so* thén plaintiff’s injury—the subsequent metastasis—occurred at some later date and was first discovered in 1985.

Although the five-year statute of ultimate repose was imposed later in 1985, plaintiffs were allowed a grace period of one year, until July 1, 1986, to bring their claims. Plaintiffs’ claims were filed within the grace period and summary judgment was properly denied.

2. The Hospital argues the evidence shows Dr. Whitaker was an independent contractor and not its agent or employee. The Hospital contends it is entitled to summary judgment because it was not liable for the alleged negligence of Dr. Whitaker.

The evidence shows that at the time the 1978 tissue sample was examined, Dr. Whitaker was the sole member of his professional corporation. The professional corporation was under contract to provide pathology services to the hospital. The written contract described the professional corporation as an independent contractor. It provided that the professional employees of the professional corporation were to perform their work free of any direction or control by the Hospital, except that the physicians were to be subject to peer review by the Hospital staff. The professional corporation and its professional employees expressly assumed responsibility for any value judgments rendered by the professional employees in regard to pathology services such as tissue interpretations. Pursuant to the contract, Dr. Whitaker was permitted to offer his services as a consultant to other physicians for his own account, although all charges were to be billed through regular Hospital billing procedures. He was paid a minimum monthly salary for services rendered to the Hospital plus a percentage of billings. None of these provisions are sufficient to impose liability against the Hospital for Dr. Whitaker’s professional judgment. See Overstreet v. Doctors Hosp., 142 Ga. App. 895 (2) (237 SE2d 213) (1977); Pogue v. Hospital Auth., 120 Ga. App. 230 (170 SE2d 53) (1969). “A hospital is not liable for the negligence of a physician employed by it where the negligence relates to a matter of professional judgment on the part of the physician when the hospital does not exercise and has no right to exercise control in the diagnosis or treatment of illness or injury.” Pogue at 231.

Decided September 20, 1988

Rehearing denied October 6, 1988

Lynn A. Downey, Russell B. Davis, for appellants.

Terrence J. Paulk, John T. Croley, Jr., for appellees.

Although the evidence clearly indicates that Dr. Whitaker and his professional corporation were independent contractors of the Hospital, the Hospital was not entitled to summary judgment on the issue of liability pursuant to the doctrine of apparent or ostensible agency. See Brown v. Coastal Emergency Svcs., 181 Ga. App. 893 (3) (354 SE2d 632) (1987), aff’d sub. nom. Richmond County Hosp. Auth. v. Brown, 257 Ga. 507 (361 SE2d 164) (1987). In order to impose liability pursuant to the doctrine of apparent or ostensible agency, the evidence must show: (1) the apparent principal represented or held out the apparent agent; and (2) justifiable reliance upon the representation led to the injury. Richmond County Hosp. Auth. v. Brown, 257 Ga. 507, supra.

The evidence in this case shows Dr. Whitaker’s written report on the 1978 biopsy was issued on Hospital stationery showing Dr. Whitaker to be the director of the Hospital’s department of pathology. This evidence is sufficient to create a jury issue as to whether the Hospital represented Dr. Whitaker to be its agent. By sworn affidavit, decedent’s husband presented evidence that he and the decedent relied upon the reputation and integrity of the Hospital in accepting the accuracy of the report and in seeking no further treatment or diagnosis. On the other hand, in the deposition taken before her death, Mrs. Zirkle testified she received the pathologist’s report orally from her treating physician and did not recall being told where the tissue had been sent for analysis. The evidence contained in the record creates an issue for jury determination concerning whether plaintiffs were aware of the Hospital’s apparent representation of agency and whether they relied upon that representation to their detriment. Thus, summary judgment was properly denied the Hospital.

Judgments affirmed.

McMurray, P. J., and Benham, J., concur.


author: Beasley, Judge.

text:
    76860.
    SWAILES v. THE STATE.
    (373 SE2d 825)
   Beasley, Judge.

Swailes appeals his conviction and sentence for voluntary manslaughter, OCGA § 16-5-2, following the death of 62-year-old Britton Waters.

1. Appellant claims that he was entitled to a directed verdict of acquittal under OCGA § 17-9-1 (a) because the State failed to prove that the trauma to the victim’s head caused the death.

The evidence construed so as to uphold the verdict, Humphrey v. State, 252 Ga. 525 (1) (314 SE2d 436) (1984), showed the following: Swailes’ car tire went flat at an intersection where a service station, a truck stop, and a convenience food store were located. The station and the truck stop were closed. Swailes’ spare tire was also flat so he went into the food store and purchased two cans of sealant to reinflate the tire. After unsuccessfully using the first can, Swailes returned to the store and using profanity demanded his money back for the second can. He grabbed one of the cans from a store employee and threw it across the parking lot. Swailes did not appear to be sober. He left the store and went across the street to the truck stop.

Waters operated both the service station and the truck stop and lived alone above the truck stop. Just prior to Swailes’ arrival, Waters was eating supper and watching television. Although both the service station and the truck stop were closed and only the service station had an air compressor, Swailes expected Waters to help repair the tire. They had a confrontation, and Waters chased Swailes around the side of the truck stop. Swailes said loudly, “go ahead and shoot me.” No blows were exchanged, and Waters chased Swailes away from his front door but then was followed there by Swailes.

Swailes’ brother, whom Swailes had called to help with the flat, arrived. The brother heard arguing and saw Waters and Swailes “tussling” in the doorway. Waters picked up a pipe which he kept by the door and struck Swailes on the head so he fell backwards. He was not knocked unconscious but sustained a bruise on his scalp.

After being knocked down, Swailes became “wild acting.” His brother helped him up and tried to keep him away from Waters but received a scratch as Swailes broke away. Swailes pushed Waters to the floor and kicked him in the face with his work boots, inflicting a large gaping wound over his right eye. Waters was found dead at the scene, having sustained also a bruise between the eyes, associated with other abrasions around the eyes and the nose, and a laceration on the back of the head. The kick wound and the bruise were not inflicted by the same blow. Waters was alive when the kick wound was inflicted.

Autopsy revealed that Waters had coronary artery disease but a visitor who had left Waters minutes before the incident did not observe any signs of heart problems. The victim’s brother never knew him to have heart problems. Waters’ heart condition was operable and such that Waters might have been unaware of it prior to the fatal incident.

The cause of death was a combination of the trauma to the head associated with the coronary artery disease: the injuries and the trauma, the excitement, and the exertion associated with the trauma was more stress than the heart could stand and Waters experienced sudden death because of it.

“Where one inflicts an unlawful injury, such injury is to be accounted as the efficient, proximate cause of the death, whenever it shall be made to appear, either that (1) the injury itself constituted the sole proximate cause of the death; or that (2) the injury directly and materially contributed to the happening of a subsequent accruing immediate cause of the death; or that (3) the injury materially accelerated the death, although proximately occasioned by a pre-existing cause.” Wilson v. State, 190 Ga. 824, 829 (2) (10 SE2d 861) (1940).

Appellant urges that the Wilson test was not met in view of Waters’ pre-existing heart condition and in view of certain testimony by the autopsy physician in response to hypothethical circumstances posed by the defense.

To begin with, there was other expert testimony that even if Waters had been in the throes of a massive heart attack at the time of the injury over the eye, that injury nonetheless would have hastened his death. As to the autopsy physician’s testimony, when asked to assume the truth of the defense’s hypothetical circumstances, the doctor testified that he would have modified his report to say that the manner of death was uncertain. But this expressed uncertainty was in response to a hypothetical situation and the jury was not required to accept the circumstances as hypothesized by the defense. Moreover, this same physician testified that the head injuries “directly and materially” contributed to Waters’ death.

There was sufficient expert testimony to establish proximate causation between the head injuries and the victim’s death and thus responsibility under at least one of the situations encompassed by the Wilson test. See, e.g., Hickman v. State, 186 Ga. App. 118, 119 (3) (366 SE2d 426) (1988); James v. State, 250 Ga. 655 (300 SE2d 492) (1983); Durden v. State, 250 Ga. 325, 328 (5) (297 SE2d 237) (1982); Larkin v. State, 247 Ga. 586 (1) (278 SE2d 365) (1981); Dupree v. State, 247 Ga. 470, 472 (1) (277 SE2d 18) (1981).

In all, there was sufficient evidence to enable any rational trier of fact to find Swailes guilty of the voluntary manslaughter of Waters beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Thus, the trial court was correct in denying Swailes a directed verdict of acquittal. Humphrey v. State, supra at 526 (1).

2. Appellant also contends that the trial court erred in that it charged involuntary manslaughter, OCGA § 16-5-3, and what constituted simple battery, OCGA § 16-5-23, but did not charge that the jury could find simple battery if it found from the evidence or the lack thereof that he caused the trauma to the victim but that the trauma did not cause the victim’s heart attack. He argues that a lack of positive medical testimony regarding the cause of death coupled with the fact that the court charged on the elements of simple battery required that the court charge simple battery as a lesser included offense.

Decided September 23, 1988

Rehearing denied October 6, 1988

William A. Dowell, Robert J. Duffy, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Jon Hope, Assistant District Attorneys, for appellee.

There was not a lack of positive medical testimony regarding the cause of death. See Division 1, supra. Furthermore, although charged with murder, OCGA § 16-5-1, defendant did not rely at trial on a lesser-included-offense defense; instead, he denied ever touching the victim. He claimed that after regaining consciousness from the blow from the victim, he saw his brother standing beside the victim’s body. Therefore, even the charge on involuntary manslaughter was gratuitous. Moreover, since there was uncontradicted evidence that the victim died, it was not necessary to charge on simple battery as a possible verdict. See Sanders v. State, 251 Ga. 70, 77 (4) (303 SE2d 13) (1983).

3. Appellant further contends that the trial court erred in not charging on mutual combat.

Again, throughout the trial Swailes did not claim any combative intention, but rather denied initiating any physical contact with the victim or any struggle with him. He maintained that Waters struck him on the head for no apparent reason. He also claimed that he bore the victim no hostility because of the unprovoked attack. This would not raise a situation of mutual combat. Nor would the state’s version of what transpired, see Division 1, supra, for “ ‘ “[m]utual combat usually arises when the parties are armed with deadly weapons and mutually agree or intend to fight with them. Mutual combat does not mean a mere fist fight or scuffle.” ’ [Cits.]” Massey v. State, 251 Ga. 515, 516 (1) (307 SE2d 489) (1983).

Judgment affirmed.

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


text:
    77137.
    JONES v. THE STATE.
    (374 SE2d 110)
   Banke, Presiding Judge.

The appellant was convicted of robbery. See OCGA § 16-8-40. He brings this appeal from the denial of his motion for new trial. Held:

1. The appellant contends the trial court erred in reserving a ruling on a defense motion to strike a prospective juror for cause. The motion to strike was based on the juror’s concession, during voir dire of the panel members as a whole, that she “would very honestly tend to believe the policeman over anyone else.” The trial judge reserved ruling on the motion at that time but subsequently disqualified the juror for cause during individual questioning of the panel members.

It has been held that it is not error to overrule a challenge for cause based on a juror’s statement that he or she would tend to give greater weight and credibility to the testimony of a police officer. See Tennon v. State, 235 Ga. 594 (220 SE2d 914) (1975); Foster v. State, 248 Ga. 409 (283 SE2d 873) (1981); Powers v. State, 150 Ga. App. 25 (256 SE2d 637) (1979). Thus, it would appear that by striking the prospective juror, the trial court in this case gave the appellant a benefit to which he was not entitled. Under the circumstances, we are at a loss to understand how the court’s initial decision to reserve ruling on the motion to strike could be considered reversible error.

2. The appellant contends that the trial judge erred by denying his motion to disclose the identity of a confidential informant. The informant had telephoned the police, asked whether the appellant was wanted for a robbery, and then disclosed that the defendant would be at a certain used car lot in a half hour. The information proved correct and led to the arrest.

In determining whether to require the disclosure of an informant, a court must balance public interest in protecting the flow of information about criminal activity with the right of an accused to prepare his defense. If the informer is a “pure tipster” who has neither participated in nor witnessed the offense, with the result that any evidence he might offer would be inadmissible hearsay, then the state is not required to disclose the informer’s identity. Thornton v. State, 238 Ga. 160 (231 SE2d 729) (1977) (construing Roviaro v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639) (1956), and Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963)); Gilmore v. State, 168 Ga. App. 76 (308 SE2d 232) (1983).

There is no suggestion in this case that the informant participated in or witnessed the offense, nor that he was otherwise in possession of any information material to the issue of the appellant’s guilt or innocence. The informant simply disclosed to police that the appellant would be present at a certain location at a certain time. Under these circumstances, the appellant’s motion for disclosure of the identity of the informant was properly denied.

Decided September 20, 1988

Rehearing denied October 6, 1988

Susan E. Teaster, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Nancy A. Grace, Assistant District Attorneys, for appellee.

3. The appellant contends that the trial court erred in allowing a police detective to state what a particular witness had told him. The testimony in question was offered for the purpose of explaining the detective’s conduct with reference to the investigation. See generally OCGA § 24-3-2; Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982) . The witness himself testified immediately after the detective, thereby exposing himself to cross-examination and “removing any hearsay taint.” Gibbs v. State, 168 Ga. App. 417, 419 (309 SE2d 412) (1983) . Consequently, this enumeration of error is also without merit.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


text:
    77154.
    SHOOK et al. v. PILOT LIFE INSURANCE COMPANY.
    (373 SE2d 813)
   Banke, Presiding Judge.

This is an interpleader action brought by Constitution State Insurance Company against the appellants, Mr. and Mrs. Shook, and the appellee, Pilot Life Insurance Company. The appeal follows the trial court’s entry of a directed verdict in favor of Pilot Life and against the appellants.

Barbara Shook was injured while a patron at a restaurant located in Hall County, Georgia, prompting both she and her husband to bring a personal injury action against that establishment. Mrs. Shook was insured under a group health insurance plan issued by Pilot Life Insurance Company, which made payments totaling $15,694.59 for medical expenses incurred by her as a result of the accident. Subsequently, Mr. and Mrs. Shook entered into an agreement with the restaurant’s liability insurer, Constitution State Insurance Company, in settlement of all claims arising from the personal injury action. Pilot Life then notified Constitution that it was asserting a right of subrogation with respect to the $15,694.59 in medical expenses it had paid out on Mrs. Shook’s behalf. Constitution paid the disputed amount into the registry of the court and brought the present action seeking to be discharged from further liability in the matter. Mr. and Mrs. Shook denied that Pilot Life was entitled to the funds and, in addition, filed a cross-claim for further benefits allegedly due under the Pilot Life policy.

At the conclusion of the trial, the parties were in agreement that no factual questions remained for the jury’s consideration and that the sole legal issue to be resolved was whether the subrogation provision contained in the Pilot Life policy created a prohibited assignment of a right of an action for personal injuries (see OCGA § 44-12-24), as opposed to a valid and enforceable right of subrogation. The applicable policy language is as follows: “RIGHT OF SUBROGATION. If you or your dependent incur medical expenses as the result of injuries suffered because of the alleged negligence or misconduct of another person, you or the dependent may have a claim against that person for payment of your medical bills. Pilot Life will be subrogated to the right of recovery you or the dependent have against the other person. This right shall be only to the extent of benefits paid by Pilot Life for medical expenses. You or the dependent will be required to reimburse Pilot Life out of any monies you or the dependent receive from the other person or his or her insurance company as a result of judgment, settlement or otherwise. You or the dependent will be required to furnish to Pilot Life information and assistance required by Pilot Life to enforce its right of subrogation. The right of subrogation shall not apply to any recovery you obtain from any insurance company under which you or the dependent are the insured person. The purpose of this provision is to help provide insurance at reasonable rates.” Held:

1. The language in question did not purport to effect an assignment of a cause of action, as proscribed by OCGA § 44-12-24, but created a valid and enforceable right of subrogation. In McLanahan v. Keith, 135 Ga. App. 117, 119 (217 SE2d 420) (1975), it was held that the meaning of “assign” is to “ ‘transfer’ so as to vest title in the recipient and allow such person to sue directly. [Cit.]” Similarly in Liberty Mut. Ins. Co. v. Clark, 165 Ga. App. 31, 32 (299 SE2d 76) (1983), we held that to create a prohibited assignment rather than an enforceable right of subrogation, the agreement must purport to transfer to the insurer not merely the insured’s “rights of recovery” but also his “right of action.”

In Wrightsman v. Hardware Dealers &c. Ins. Co., 113 Ga. App. 306, 307 (174 SE2d 860) (1966), relied on by the appellants, this court held that language purporting to create a right of subrogation actually constituted an assignment of the cause of action where it required the insured to “execute and deliver [such] instruments and papers and do whatever else is necessary to secure such rights [and to] do nothing after loss to prejudice such rights.” No such language is present in the insurance policy at issue in the present case. Rather, the policy merely purports to give the insurer a right to be reimbursed for benefits paid on behalf of the insured, to the extent of monies received by the insured from the tortfeasor “as a result of judgment, settlement or otherwise.” It follows that the trial court did not err in granting Pilot Life’s motion for directed verdict.

Decided September 21, 1988

Rehearing denied October 6, 1988

Wesley Williams, for appellants.

Weymon H. Forrester, for appellee.

2. As we have based our affirmance of the trial court’s decision in this case upon application of Georgia law, we do not reach the appellants’ contention that the trial court erroneously relied upon North Carolina law rather than Georgia law in reaching its decision.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


author: Banke, Presiding Judge. Beasley, Judge,

text:
    77190.
    McGIVERN v. FIRST CAPITAL INCOME PROPERTIES, LTD.
    (373 SE2d 817)
   Banke, Presiding Judge.

The appellee sued the appellant and others to recover an indebtedness allegedly due under a lease agreement. The appellant’s liability was predicated on a personal guaranty which he had signed guaranteeing the lessee’s obligations during the first two years of the lease. The appellee moved for summary judgment based on an affidavit executed by its “Director of Lease Administration” setting forth the unpaid charges which had accrued under the lease. According to this affidavit, the portion of the lease indebtedness covered by the appellant’s guaranty was $9,721.50. The appellant did not oppose the motion for summary judgment; and the trial judge accordingly entered judgment against him for that amount, plus attorney fees. On appeal, however, the appellant contends that this figure included certain charges which had not accrued until after the expiration of the guaranty.

The lease term commenced at 12:01 a.m. on May 1, 1983, and ended on April 30, 1988. As previously indicated, the guaranty was effective by its terms only for the first two years of the lease. The appellee’s Director of Lease Administration averred in her affidavit that this meant the guaranty expired on May 1, 1985. The appellant takes issue with this conclusion, contending that a two-year guaranty commencing on May 1, 1983, would expire by its terms on April 30, 1985, in the absence of contractual language evidencing a contrary intention. He contends that the judgment against him was therefore erroneous in that it included a $2,409.83 rental payment which did not become due until May 1, 1985, as well as $524.22 in late charges which did not accrue until after May 1, 1985. Held:

1. We reject the appellee’s contention that the appellant forfeited his right to contest the amount of the award by failing to oppose the motion for summary judgment in the trial court. There is no such thing as a “default summary judgment.” By failing to respond to a motion for summary judgment, a party merely waives his right to present evidence in opposition to the motion. It does not automatically follow that the motion should be granted. “A motion for summary judgment should not be granted unless it affirmatively appears from the pleadings and evidence that the party so moving is entitled to prevail.” Finch v. City of Atlanta, 232 Ga. 415, 416 (207 SE2d 46) (1974). See generally OCGA § 9-11-56 (c); Sanders v. Colwell, 248 Ga. 376 (2) (283 SE2d 461) (1981). Thus, “[if] the record does not contain sworn proof of the dollar amount of the recovery to which appellee is entitled, ... [a] grant of specific damages [is] error notwithstanding appellant’s failure to respond to the motion for summary judgment.” Blue Ridge Ins. Co. v. Maddox, 185 Ga. App. 153, 153-154 (363 SE2d 595) (1987).

2. The appellee’s director of lease administration averred in his affidavit that the appellant was liable to the appellee “in the amount of . . . $9,721.50, which sum represents rental, real estate construction charges incurred in January, February, March, and April of 1985.” It is apparent from this averment as well as from the list of the charges set forth in the affidavit that the appellee did not in fact seek to hold the appellant accountable for the rental charge which became due on May 1, 1985. Accordingly, the issue of whether the guaranty expired on April 30, 1985, or May 1, 1985, would not appear to have any bearing on the case.

3. It is apparent, however, that the judgment entered against the appellant did include certain late charges which did not become due until after the expiration of the guaranty. Included in the $9,721.50 sought by the appellee were late charges totaling $1,310.55 which, according to the affidavit, had “accrued between February 1, 1985 and June 1, 1985.” In his brief on appeal, the appellant asserts that the portion of this amount which had accrued subsequent to May 1, 1985, was $524.22. The appellee does not take issue with this assertion, and it may reasonably be concluded from an examination of the affidavit and the lease agreement that the late charges imposed subsequent to the expiration of the guaranty were no less than this. The summary judgment entered against the appellant in this case is accordingly affirmed on condition that the appellee consent to write off from the principal amount of the judgment the sum of $524.22. Otherwise, the judgment is affirmed as to liability but vacated as to the award of damages.

Decided September 22, 1988

Rehearing denied October 6, 1988.

Ira S. Zuckerman, for appellant.

William M. Coolidge III, Glyndon C. Pruitt, J. Patrick O’Brien, for appellee.

Judgment affirmed on condition.

Birdsong, C. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur but what should be pointed out is the waste of judicial resources and time, and the additional cost and delay resulting to the parties, from appellant’s failure to raise below his objection to the amount of the judgment. Opportunities are given. USCR 6.2, 6.3, 6.5. Had they been seized, and had the rules been complied with by defendant, an appeal would probably have been unnecessary. Moreover, the trial court was never faced with the objection now made and ruled on. Compare the mechanism provided in OCGA § 9-11-52 (b). The public policy of the state as spelled out in Ga. Const. 1983, Art. VI, Sec. IX, Par. I, and OCGA § 9-11-1 is not served by the procedure employed by appellant here.