author: McMurray, Presiding Judge. Beasley, Presiding Judge, Cooper, Judge,

text:
    A93A1800.
    LOGAN v. THE STATE.
    (442 SE2d 883)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of rape, aggravated sodomy, kidnapping with bodily injury, aggravated assault, and simple battery.

At trial, the victim testified that in the early morning hours of December 17, 1988, she was working as a taxi cab driver when defendant approached her for a ride; that she drove to several sites in compliance with defendant’s requests (purportedly to locate a friend) and that defendant then pulled a knife, instructed her to drive to a remote area and forced her to engage in sodomy and intercourse. Defendant testified that he engaged in consensual sex with the victim pursuant to her solicitation; that he ejaculated during copulation over the victim’s objection; that he gave the victim $20 after the encounter and that the victim then gave him a card with her name and number for future reference.

This appeal followed the denial of defendant’s motion for new trial. Held:

1. In his first four enumerations of error, defendant contends the trial court erred in applying the Rape Shield Statute, OCGA § 24-2-3, to preclude him from testifying as to certain statements the victim uttered shortly before the incident which forms the basis of the crimes charged.

Prior to trial, the trial court held an in camera hearing pursuant to OCGA § 24-2-3 where defense counsel stated that he intended to produce testimony that the victim engaged in prostitution before the alleged rape. The trial court, noting that defendant had no knowledge of this alleged act of prostitution by the victim, ruled that such evidence was inadmissible under the Rape Shield Statute as amended July 1, 1989, or under the statute as it existed prior to the amendment. The trial court held a second in camera hearing immediately before the trial wherein defendant proposed to testify concerning statements the victim allegedly uttered in his presence concerning her past sexual conduct. Defendant argued that these statements led him to believe that the victim consented to sex. Specifically, defendant sought to introduce that the victim told him that she knew all the black men in the community because of her occupation; that she lived with a number of black men; that her husband left her because she had been involved with these men; that she had three children by black men; that “she had been corresponding with the black guys and that they was abusing her in ways and that she wasn’t getting what she deserved”; that she wasn’t making much money on her job and that she did not want to get pregnant anymore.

Noting that some of the proffered testimony did relate to the victim’s past sexual behavior, the trial court ruled that any statements which the victim uttered concerning her marital history, general reputation of promiscuity, chasteness, or sexual mores contrary to community standards were excluded by the Rape Shield Statute. Specifically, the trial court ruled that the victim’s alleged statement that she did not want to have any more children was inadmissible because it was proof of sexual conduct unrelated to the crimes charged. However, the trial court ruled that the victim’s alleged statement that she did not want to get pregnant was admissible. It appears from a review of the record that the only aspects of defendant’s proffered testimony that he did not subsequently testify to before the jury were that the victim had been involved with black men, that she had children by black men and that her husband had left her.

(a) Relying on Villafranco v. State, 252 Ga. 188 (1) (313 SE2d 469), defendant first argues that the victim’s statements to him are not evidence of past sexual behavior within the purview of the Rape Shield Statute but are evidence of both her state of mind at the time of the alleged rape and her motive to fabricate a rape charge against him because he was another black male who had abused her by virtue of ejaculating inside of her after she asked him not to and by only paying her $20. This contention is without merit.

Although the victim’s statements to defendant about her having had sexual relations with black men and having had children by these men would otherwise be admissible as part of the res gestae, it is well settled that the “Rape Shield Statute, OCGA § 24-2-3, supersedes all evidentiary exceptions, including the res gestae rule.” Veal v. State, 191 Ga. App. 445, 447 (4) (382 SE2d 131); Johnson v. State, 146 Ga. App. 277, 281 (246 SE2d 363). Defendant’s reliance on Villafranco, 252 Ga. 188, 193 (1), supra, is misplaced because in that case the victim’s statement that she wanted “to get some nookey” did not refer to past sexual conduct but to the victim’s present state of mind. Accordingly, the Rape Shield Statute applies to the proffered testimony.

(b) Next, defendant contends the trial court erred in applying the Rape Shield Statute as amended July 1, 1989, because he committed the alleged offense in December 1988. Defendant argues that the amendment to subsection (b) of the statute violates the ex post facto clause because it deprives him of the substantive right to introduce evidence that was admissible under the prior version of subsection (b).

Prior to July 1, 1989, the Rape Shield Statute excluded evidence of past sexual behavior of the complaining witness unless the court “finds that the past sexual behavior directly involved the participation of the accused or finds that the evidence expected to be introduced supports an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of. . . .” (Emphasis supplied.) OCGA § 24-2-3 (b). The 1989 amendment substituted the word “and” for “or” such that in order for evidence of past sexual behavior to be introduced under subsection (b), it must directly involve the accused and support an inference that he reasonably believed the complaining witness consented.

Generally, statutes prescribe for the future and that is the construction to be given unless there is a clear contrary intention shown. OCGA § 1-3-5. However, where a statute governs only procedure, including the rules of evidence, it is to be given retroactive effect. Polito v. Holland, 258 Ga. 54 (2) (365 SE2d 273). The rule with respect to the ex post facto clause is that any law enacted after the offense was committed which inflicts a greater punishment or alters the situation of the accused is ex post facto. Todd v. State, 228 Ga. 746 (187 SE2d 831). The Georgia Supreme Court addressed a similar issue in Todd wherein the defendant challenged as void for retroactivity a change in the law which allowed evidence of his former crimes committed before the effective date of the statute to be introduced at a sentencing hearing after the effective date of the statute. The court found Todd was not deprived of a substantial right, quoting from Thompson v. Missouri, 171 U. S. 380, 387 (18 SC 922, 43 LE 204): “We cannot perceive any ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced ... at the time the offense was committed.” (Punctuation omitted.) Todd v. State, 228 Ga. 746, 751, supra. Given that the case sub judice involves the converse situation, i.e., evidence which may have been admissible at the time of the offense is no longer admissible, it appears defendant was not deprived of a substantial right.

In any event, we agree with the trial court that the amended statute was not ex post facto as to the defendant because the evidence he sought to introduce was not admissible under the prior version of subsection (b). Defendant essentially sought to introduce statements the victim made to him about being with other men and having children with such men as evidence that defendant believed the victim consented to have sex with him. This evidence did not directly involve the defendant nor do we view it as a circumstance which would reasonably support defendant’s purported view that the victim consented to have sex with him. See former OCGA § 24-2-3 (b). In fact, it is against just such reasoning that Rape Shield laws were enacted. See Johnson v. State, 146 Ga. App. 277, 278 (1), 279, supra. We find no merit in this enumeration.

(c) Defendant next argues that the trial court erred in ruling his testimony inadmissible under the amended statute because the testimony is admissible under subsection (c) (2) of the amended statute.

Subsection (c) of the Rape Shield Statute was amended in 1989 to provide an exception for the admission of evidence of past sexual behavior if the court finds that the evidence “is so highly material that it will substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence. . . .” OCGA § 24-2-3 (c) (2). As noted above, the essence of defendant’s argument appears to be that the victim’s statements to him that she had been with black men before and had children by such men supports the conclusion that he reasonably believed the victim consented to have sex with him. The trial court ruled this interpretation was not a reasonable belief but an inappropriate implication that “if she did it once, she did it again.” See Johnson v. State, 146 Ga. App. 277, 278 (1), 279, supra. We likewise cannot say that this testimony substantially supports the conclusion that defendant reasonably believed the victim consented nor that justice mandates the admission of such testimony. Accordingly, we find this enumeration to be without merit. See Concepcion v. State, 200 Ga. App. 358, 361 (5) (408 SE2d 130).

(d) Defendant next contends the trial court erred in denying his motion for new trial on the ground that OCGA § 24-2-3, as amended in 1989, is unconstitutional. Defendant argues only that if the trial court properly excluded his proffered testimony under the amended statute, the amended version of the statute is unconstitutional and violates his right of confrontation and due process rights.

The Georgia Supreme Court has already established the constitutionality of the Rape Shield Statute. Harris v. State, 257 Ga. 666 (1) (362 SE2d 211). See also Rouse v. State, 204 Ga. App. 845, 847 (3) (420 SE2d 779). As noted above, the 1989 amendment: (1) substituted the word “and” for “or” in subsection (b) such that the past sexual behavior must now directly involve the accused and support an inference that he reasonably believed the complaining witness consented and (2) added to subsection (c) another exception for the admission of evidence of the victim’s past sexual behavior. As before, the statute still assists the truth-seeking process by encouraging victims to bring the perpetrators of crimes to justice and still provides protection for the defendant by virtue of the in camera hearing and the inclusion of an additional exception solely for the benefit of the defendant. See Harris v. State, 257 Ga. 666 (1), supra. Defendant has made no argument as to how either change in the statute has rendered it unconstitutional and, in the absence of any such argument, we find this enumeration to be without merit.

2. In his next enumeration of error, defendant contends the trial court erred in denying his motion for new trial based on newly discovered evidence that the victim recanted her accusation that defendant committed the crimes charged.

“ ‘That a material witness for the State, who at the trial gave direct evidence tending strongly to show [the defendant’s] guilt, has since the trial made statements (even) under oath that [her] former testimony was false, is not cause for a new trial. (Cits.)’ Fowler v. State, 187 Ga. 406, 407 (7) (1 SE2d 18) (1939). ‘Declarations made after the trial are entitled to much less regard than sworn testimony delivered at the trial. This difference in value must be recognized so long as there has been no conviction of perjury. Provision is made for setting aside verdicts resting on perjury, but there must first be a conviction. (Cit.)’ Brown v. State, 60 Ga. 210, 212 (1) (1878).” Williams v. State, 197 Ga. App. 274 (398 SE2d 381). The only exception to the rule against setting aside a verdict without proof of a material witness’ conviction for perjury, is where “there can be no doubt of any kind that [the State’s witness’] testimony in every material part is purest fabrication.” Fugitt v. State, 251 Ga. 451, 452 (1), 453 (307 SE2d 471).

In the case sub judice, Jackie Bonds testified at the hearing on defendant’s motion for new trial that the victim informed her two years after defendant’s conviction that she falsely accused defendant of rape because defendant only gave her $20 for engaging in consensual intercourse, defendant ignored her request to avoid ejaculation during copulation so as to minimize the possibility of pregnancy and “she had been having problems with black mens.” Bonds testified that she then asked the victim, “ ‘Well, why did you put [defendant] in jail then,’ and [that the victim] responded back and said that she knew he wasn’t from this town.” On cross-examination, Bonds admitted that she is not well acquainted with the victim; that she has visited defendant regularly (over 20 times) since his incarceration and that she and defendant have discussed defendant’s version of the encounter which led to his conviction for rape. The victim testified that defendant raped her in the manner she described at trial and refuted any allegation to the contrary. Specifically, the victim testified that she never recanted her trial testimony; that her relationship with Bonds is antagonistic because of an unrelated domestic matter and that she did not fear pregnancy as a result of ejaculation by defendant during copulation as alleged by Bonds because she was surgically sterile at the time of the rape. This evidence casts great doubt as to whether the victim’s trial testimony was of the “purest fabrication” so as to invoke the exception enunciated in Fugitt v. State, 251 Ga. 451, 452 (1), supra. Further, since there is no proof that the victim has been convicted of perjury so as to invoke OCGA § 17-1-4, the affidavit and testimony of Jackie Bonds goes only to impeach the victim’s trial testimony and therefore does not meet the requirements for granting a new trial based on newly-discovered evidence as set forth in Timberlake v. State, 246 Ga. 488, 490 (1) 491 (271 SE2d 792). Consequently, the trial court did not err in denying defendant’s motion for new trial based on newly-discovered evidence. See Ashley v. State, 263 Ga. 820 (2c) (439 SE2d 914); McKnight v. State, 211 Ga. App. 653 (1) (440 SE2d 249).

3. In his fifth enumeration, defendant contends that because “the bodily injury on which his kidnapping with bodily injury conviction was predicated consisted of the rape of which he was also convicted, these two offenses merged, with the result that the sentence of life imprisonment which he received for kidnapping with bodily injury must be vacated. [It appears that the] state concedes that these two offenses merged under the circumstances. See Allen v. State, 233 Ga. 200, 203 (210 SE2d 680) (1974). It contends, however, that kidnapping with bodily injury constituted the greater of the two offenses and that it is therefore the 20-year sentence imposed on the rape conviction which should be vacated, rather than the mandatory sentence for kidnapping with bodily injury. See OCGA § 16-5-40 (b). We agree. See Brown v. State, 247 Ga. 298 (8) (275 SE2d 52) (1981). [Defendant’s] sentence for rape is accordingly vacated. However, the judgment of the trial court is otherwise affirmed.” Gober v. State, 203 Ga. App. 5, 8 (8) (416 SE2d 292).

4. In his seventh enumeration, defendant contends the trial court erred in denying his motion for new trial on the grounds that his trial attorney was ineffective for failing to challenge the constitutionality of OCGA § 24-2-3. The enumeration of error is not supported by argument or citation of authority and is thereby deemed abandoned pursuant to Rule 15 (c) (2) of this court. Snyder v. State, 201 Ga. App. 66, 69 (8a) (410 SE2d 173).

Judgment affirmed in part and vacated in part.

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

Beasley, Presiding Judge,

concurring in part and dissenting in part.

1. I dissent with respect to Division 1 (a) and that portion of Division 1 (b) which analyzes whether the evidence would be admissible under the old, inapplicable law. I do not join in the conclusions that it would be inadmissible under the old law and is inadmissible under the amended version.

After the defendant’s testimony in camera, the court excluded all evidence of what the court described as statements made by the prosecutrix to defendant about her marital history, what she said about sexual things she had done, what she said about nonchastity on her part and her activity related to sexual mores contrary to community standards, her statement about not wanting to have more children, and her statement about having children by others of defendant’s race. The court later ruled that he could testify that she said she had children, because she herself so testified at trial.

Thus, the court excised portions of what the prosecutrix allegedly told defendant about herself leading up to a direct exchange about having sex, shortly before their sexual activity. These portions were part of the whole conversation which, defendant urged, in its totality and under the circumstances, had led him to believe she consented. The prosecutrix’ statements were offered to show her state of mind and motive at the time of the alleged rape, as a basis for the defendant’s belief about her willingness to engage in sex, and also her motive thereafter for claiming she was raped. Her statements would thus relate to the issue of her consent vel non. Defendant’s testimony about them was substantive evidence, that is, that type of evidence which the other dissenters would hold entitled defendant to a new trial based on Bonds’ newly discovered testimony.

Under both the prior and present rape shield versions, the victim’s statements would be allowed to show a basis for defendant’s belief that there was consent. Such evidence is more circumscribed under the present statute than formerly, however, as it now must be “so highly material that it will substantially support” such a finding and it must be such that “justice mandates the admission of such evidence.” OCGA § 24-2-3 (c) (2). The legislative history of the substantial amendment to OCGA § 24-2-3 is chronicled in 6 Ga. State Univ. L. Rev. 245 (1989).

As to the old law:

In Johnson v. State, 146 Ga. App. 277, 279 (1) (246 SE2d 363) (1978), a case cited, defendant wanted to introduce evidence that the victim was not a virgin, to support an inference that he reasonably believed she consented to his advances. Of course that was not admissible under subsection (b). In the first place, defendant offered no evidence that he knew or believed the victim was not a virgin at the time of the encounter with the victim. He wanted others to testify that they had had intercourse with her. Their activities, without his knowledge of them at the time of his encounter (even if the two witnesses were truthful), could not possibly create an inference that he could have reasonably believed that she consented.

In the second place, whether she was a virgin or not has zero relevancy to whether she consented or not to intercourse with defendant. There is just no logical tie between the fact that a woman is not a virgin and the question of consent in a given situation. That is, if defendant had been permitted to introduce the evidence, it would not have shed light on the issue of consent.

In this case, on the other hand, defendant wished to show the woman’s motive and state of mind leading up to the incident, by what she said to him, to explain why he believed she consented. As defendant’s counsel put it, he was trying to show that this cab driver, to whom defendant was a stranger, made some very personal disclosures about sexual activities with members of his race, as a come-on. His theory is that she would not discuss such things with this man she picked up unless she had sexual activity in mind. That would be very relevant to the issue of consent because these statements would have supported an inference that the accused could have reasonably believed that she consented to the conduct which then transpired between them. Evidence of consent is one of the exceptions under OCGA § 24-2-3’s old subsection (b). Harris v. State, 257 Ga. 666, 668 (2) (362 SE2d 211) (1987).

The evidence which defendant sought to introduce came within that exception to the rule of inadmissibility. It would not contravene the statute’s shield against the jury’s “becoming inflamed or impassioned and deciding the case on irrelevant and prejudicial evidence.” (Emphasis supplied.) Harris, supra at 667 (1) (a). It was relevant to show the context in which she made, according to his testimony, a solicitation. The context created by her other statements to him, if the jury believes she said them, renders more plausible his testimony that she solicited sex and could create a reasonable doubt that he committed the crime charged. As to whether she made these statements about herself, the determination of admissibility does not depend on whether or not the trial court would find defendant’s testimony on the subject to be credible.

Concepcion v. State, 200 Ga. App. 358 (5) (408 SE2d 130) (1991), cited in the majority opinion, is inapposite. In that case, as pointed out by the court, there was no evidence that defendant had knowledge of the alleged prior sexual conduct; this rendered it inadmissible. In this case, defendant’s testimony is that the woman told him about it, in advance of their sexual contact.

Knowledge of the prosecutrix’ past sexual activity which could support a reasonable belief that the prosecutrix consented to the conduct complained of, such as infidelity discussed at the time of the encounter, would be admissible under the prior OCGA § 24-2-3 (b). Lack of such knowledge renders it inadmissible. Burley v. State, 190 Ga. App. 75, 78 (2) (378 SE2d 328) (1989); Moore v. State, 195 Ga. App. 814 (395 SE2d 13) (1990).

As to the amended, applicable law:

This challenged evidence comes within the exception carved out in OCGA § 24-2-3 (c) (2). In the context and environment in which the alleged statements were made, what defendant testified the prosecutrix said to him about her personal sexual life and the sexual relationships she had had with other men of his race were relevant to his defense of consent.

The majority applies an earlier ruling of this court that the Rape Shield Statute supersedes the res gestae rule. It comes from Johnson v. State, 146 Ga. App. 277, 280 (246 SE2d 363) (1978). That case, decided under the old statute, did not involve an effort by defendant to introduce res gestae evidence, so it presents dictum on this subject. Moreover, it cites no authority for the proposition. Subsequent cases, such as Veal v. State, 191 Ga. App. 445, 447 (4) (382 SE2d 131) (1989), simply apply it.

The nature of the alleged statements, and the setting in which they were said, in this case meet the statutory requirement that the evidence be “so highly material that it will substantially support a conclusion that the accused reasonably believed that [she] consented to the conduct complained of.” Because this was defendant’s sole defense, “justice mandates the admission of such evidence,” which is the second requirement of the statute.

2. The majority, having concluded that the evidence was excludable under the statute, is confronted with a constitutional argument that construing and applying the statute in such a manner renders it unconstitutional. This places the matter squarely within the jurisdiction of the Supreme Court of Georgia. 1983 Ga. Const., Art. VI, Sec. VI, Par. II (1). Defendant raised the issue of constitutionality under the federal Confrontation Clause and due process clause in the trial court, the trial court rejected the claims, and so does the majority here.

This Court’s position is that the question was resolved in Harris v. State, 257 Ga. 666 (1) (362 SE2d 211) (1987). Harris, however, examined the statute before it was amended. The amendments of 1989 further substantially restrict the defendant’s evidence. The statute as amended has not yet been subject to Supreme Court scrutiny.

Secondly, Harris dealt only with a challenge under the Confrontation Clause, the defendant’s Sixth Amendment right “to be confronted with the witnesses against him.” It “includes the right to conduct reasonable cross-examination. Davis v. Alaska, 415 U. S. 308, 315-316[, 39 LE2d 347, 94 SC 1105] (1974).” Olden v. Kentucky, 488 U. S. 227, 231 (109 SC 480, 102 LE2d 513) (1988). In Georgia, a defendant has the statutory right “of a thorough and sifting cross-examination.” OCGA § 24-9-64. Defendant Logan never got to the point of cross-examining the victim about her excluded statements, because the statements were excluded before trial.

Thirdly, Harris did not deal with a separate due process challenge, which defendant also asserts. To the extent that this is not covered by the Sixth Amendment right to impeach the victim’s testimony, he claims that refusing to permit him to testify about the substance of the encounter, on the basis of the statute, in particular those portions of the conversation which he had with the victim which led him to believe she consented to the sex which transpired, deprived him of due process of law. See Chambers v. Mississippi, 410 U. S. 284 (93 SC 1038, 35 LE2d 297) (1973). Thus, Harris does not foreclose this issue.

Fourthly, Harris did not involve res gestae, or matters which were an inherent part of the subject incident, but rather the victim’s alleged prior sexual history standing alone.

I concur in the remainder of the opinion.

I am authorized to state that Chief Judge Pope joins in this opinion.

Cooper, Judge,

concurring in part and dissenting in part.

I respectfully dissent as to Division 2 of the majority opinion since I believe the trial court erred in denying defendant’s motion for new trial based on newly discovered evidence. The majority holds that Bonds’ testimony does not meet the requirements for granting a new trial because it goes only to impeaching the victim’s trial testimony. I disagree based on this court’s recent decision in Humphrey v. State, 207 Ga. App. 472 (428 SE2d 362) (1993). In Humphrey, we held that the defendant’s motion for new trial should have been granted based on the newly discovered testimony of the victim’s previously unknown roommate that the victim had told the roommate that she had consented to sexual intercourse with the defendant but had changed her mind in the midst of it. We found this evidence admissible not merely to impeach the victim’s credibility but as substantive evidence tending to establish there had been no rape. Id. at 475. We determined that the roommate’s testimony was “ ‘not cumulative, even though it was substantially the same as the defendant’s own testimony, because it provided support for the defendant’s theory, support which otherwise was completely lacking in the case.’ [Cits.]” Id. As to whether the evidence was so material as to likely produce a different verdict, we held that the trial court, in refusing to grant the new trial motion, “ha[d] seemingly passed upon the credibility of the roommate and ha[d] said, in effect, that a jury could not believe her as a matter of law.” (Citations and punctuation omitted.) Id.

Bonds testified that the victim told her the following: she took the defendant to a wooded area and had sex with him, she told him not to “come inside of her because she did not want [any] more [children],” he ejaculated in her anyway and, after they had sex, he gave her $20 to which she responded “this is all you’re going to give me after what I gave you?” Bonds also testified that the victim said that she fabricated the rape charge because she knew the defendant was not from there and knew no one in the area. Bonds testified to the same effect at the hearing on the motion for new trial.

Here, as in Humphrey, the testimony of Bonds, the later discovered witness, was admissible not merely to impeach the testimony of the victim but as substantive evidence “affirmatively supporting] the defense claim of consent and fabrication of rape.” Id. Bonds’ testimony as to why the victim said she fabricated the rape charge was not previously testified to by any witness. Defendant alone testified that the victim told him not to ejaculate in her, became angry when he had done so, and became more angry when he only paid her $20. While Bonds’ testimony was similar to defendant’s testimony in this regard, as in Humphrey, her testimony was not cumulative because it provided support for the defendant’s theory of consent and fabrication which was otherwise lacking. Id.; see also Lee v. State, 146 Ga. App. 189 (3) (245 SE2d 878) (1978); Banks v. State, 235 Ga. 121 (218 SE2d 851) (1975).

Decided March 18, 1994

Reconsideration denied April 1, 1994

H. Bradford Morris, Jr., for appellant.

Lydia Sartain, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

Finally, with respect to whether the submitted testimony was so material as to probably produce a different verdict, I conclude the jury may well have believed defendant’s version of the events if it had Bonds’ testimony concerning the victim’s subsequent admissions before it. However, as in Humphrey, the trial court has seemingly passed on Bonds’ credibility and said, in effect, that no jury could believe her. See 207 Ga. App. at 475. Because I find the instant case analogous to the situation in Humphrey and do not believe Bonds’ testimony went only to impeaching the victim’s testimony, I would hold that the trial court abused its discretion in denying defendant’s motion for new trial.

I concur in the remainder of the opinion.

I am authorized to state that Chief Judge Pope joins in this opinion.

       Defendant concedes that the testimony is not admissible under subsection (b) of the amended Rape Shield Statute.

       Compare this evidentiary standard with that which applies to newly-discovered evidence. To warrant a new trial, such evidence must fulfill six requirements, one of which is that “ ‘it is so material that it would probably produce a different verdict.’ ” Spann v. State, 263 Ga. 336, 337 (3) (434 SE2d 54) (1993). The dissent authored by Cooper, J., in the instant case applies this latter standard to Bonds’ testimony and would hold that it meets the standard, as substantive evidence, so as to mandate a new trial.

       The dissent authored by Cooper, J., refers to this same matter of credibility as to Bonds’ testimony, in the context of newly-discovered evidence in a motion for new trial. The trial judge is the trier of the facts in deciding motions based on newly-discovered evidence. Herrin v. State, 71 Ga. App. 384, 387 (2) (31 SE2d 124) (1944). As to the evidence defendant sought to introduce at trial, however, its credibility and weight would be within the province of the jury.

         Although Moore was probably decided under the law as amended in 1989, the opinion quotes and applies Villafranco v. State, 252 Ga. 188 (313 SE2d 469) (1984), decided under old law.


source: Caselaw Access Project

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

license: Public Domain

text:
    A93A1914.
    BARRETT v. THE STATE.
    (443 SE2d 285)
   Smith, Judge.

Following the denial of his motion to suppress, Stuart Barrett entered a conditional nolo contendere plea satisfying the requirements of Mims v. State, 201 Ga. App. 277, 278-279 (1) (410 SE2d 824) (1991), on one count of possession of cocaine. He appeals, asserting that the physical evidence to be used against him at trial was seized illegally from his person, and therefore the trial court erred in ruling that evidence admissible. We agree.

A hearing was held on Barrett’s motion, at which the following undisputed evidence was adduced. The Athens-Clarke County Police Department received a call from the Goody’s store in Athens stating that the occupants of two automobiles were suspected of shoplifting. The police had only a description of the vehicles and their license tag numbers. Soon thereafter Officer Gerald Carter spotted and stopped one of the automobiles in question. Barrett was the driver and sole occupant of that vehicle. Carter asked for Barrett’s driver’s license and insurance card. Barrett complied. At this time, Carter observed a plastic Goody’s shopping bag on the passenger seat next to Barrett. Carter asked Barrett to step out of the vehicle, and Barrett complied. Carter testified that Barrett was cooperative and that Carter at that point had no articulable reason to fear him.

Two other officers, Dawson and Dearing, then arrived on the scene. Officer Dearing noticed a bulge in Barrett’s left sock and asked Barrett what he was keeping there. Barrett replied that it was money, and in fact he pulled money from his sock. According to Dearing, a “little bulge” remained in Barrett’s sock. Dearing testified that Officer Dawson then reached down and pulled a “little tubular thing” containing what appeared to be crack cocaine out of Barrett’s sock. Officer Dearing testified that he did not believe anything else was said before Officer Dawson took the vial of crack from Barrett’s sock.

Officer Dawson then took the stand. Dawson explained that once Barrett pulled the money out of his sock and the bulge remained, he “just made an effort to pull his sock down to check to see what it was because I was afraid that there might be some type of weapon or something in his sock at that time.” It is uncontroverted that Barrett was given no further opportunity to explain the remaining bulge in his sock after the money was removed. Barrett was then arrested for possession of cocaine. He was thereafter returned to the Goody’s store, where it was confirmed that the items in Barrett’s shopping bag were not stolen. At the close of the motion hearing, the trial court found that the officers had a reasonable suspicion to stop Barrett’s vehicle, and that they were then justified in “doing a limited Terry type pat down of his outer clothing” to check for weapons, or, alternatively, as incident to a lawful arrest. See generally Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). On that basis, Barrett’s motion was denied.

“When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them. [Cits.]” State v. Corley, 201 Ga. App. 320 (411 SE2d 324) (1991).

The court found that a pat-down of Barrett’s outer clothing was authorized. However, this finding is immaterial to any issue presented, since it is uncontroverted that no pat-down took place. The State’s own recitation of the facts makes this clear. The State admits that Dawson “attempted to determine whether or not the sock in fact contained a weapon by pulling the sock down.” There is no evidence in the record to support the dissent’s statement that Dawson gained information from “touching” the sock that authorized the removal of the vial. Instead, it is uncontroverted that Dawson’s sole method of investigating the bulge in Barrett’s sock was simply to remove the object contained in it, no matter what that object might be — hard or soft, threatening or nonthreatening, innocent or incriminating. And just as there is no evidence of a pat-down, there is likewise no evidence that any suspicions on Dawson’s part were “confirmed,” as the dissent states, by any act other than the search of Barrett’s sock and the seizure of the vial of cocaine contained in it.

Also missing from the record is any evidence that the object contained in Barrett’s sock “appeared to be a knife,” that it “appeared to be a hard object,” or even that it was a “pocket-knife-size bulge,” as the dissent states. We likewise point out that the officer seizing the vial from Barrett’s sock testified that he took this action because he was afraid that the object might be a weapon “or something.” Clearly, this is not a case where it reasonably can be contended that no pat-down was necessary. The dissent claims that the officer was able to point to particular facts from which he “inferred” that Barrett was in fact armed and dangerous. On the contrary, Officer Dawson’s only testimony to that effect was that he was afraid, by the very fact that the bulge existed, that it might be “a weapon or something.” That alone might authorize a pat-down of Barrett’s sock, but it does not authorize the officer to skip this vital step in the information-gathering process and proceed to search and seize whatever created the bulge in Barrett’s sock.

The dissent erroneously suggests that Barrett admitted a pat-down “could have led the officer to believe that it was a pocket knife.” The record does not support this; neither Barrett nor his counsel made such an acknowledgment. On the contrary, Barrett’s counsel merely applied the law as he interpreted it, stating in closing argument: “At the most the police were justified in conducting a frisk of the person’s exterior, a pat down. And at that point if they had deduced that what was in his shoe after the frisk . . . was a hard object and that it could be a weapon, at that point, and only at that point, would they have been justified in going in there.” (Emphasis supplied.) This clearly does not support the notion that Barrett made the concession claimed by the dissent. The evidence more strongly suggests that a pat-down would merely have confirmed that the object in Barrett’s sock was in fact cylindrical, and that it would not have felt at all like a pocketknife.

Finally, we make the obvious point that the vial in Barrett’s sock did not come into “plain view,” as the dissent states, until the search and seizure had been completed. We do agree with the dissent, however, that if a pat-down had been done, and Officer Dawson reasonably believed afterwards that the object contained therein was a threat to his safety, then it “would have been foolhardy at best” to transport Barrett back to the Goody’s store without further assurance that the sock did not in fact contain a weapon.

Based on the facts as they appear in the record and as presented by the State, the position taken by the dissent would authorize a police officer to search and seize any object which causes a detainee’s clothing to bulge, regardless of whether a preliminary pat-down would have fully satisfied the officer’s purported concern for his own safety. Moreover, the dissent does not anticipate the inevitable cases where the existence of a visible bulge is disputed.

The fact that Barrett was audacious and foolish enough to claim he thought the vial contained cornbread does not in any way strengthen the State’s case, as the dissent apparently believes. Our decision is based solely on the case presented by the State. Barrett in no way contradicted the officers’ admission that they investigated the bulge by searching and seizing the vial contained therein. We are aware of no case law standing for the proposition that Barrett waived his constitutional rights ex post facto by demonstrating a willingness to insult the intelligence of the court. We are likewise aware of no support for the dissent’s proposition that a search of Barrett’s sock is a proper method to form the very belief authorizing that search.

“In Terry v. Ohio, supra, the court’s emphasis upon the procedures followed by the officer indicates that a two-step process must ordinarily be followed: (1) The officer must pat down first, and (2) then intrude beneath the surface only if he comes upon something which feels like a weapon. An officer who exceeds a pat-down without first discovering an object which feels reasonably like a knife, gun, or club must be able to point to specific and articulable facts which reasonably support a suspicion that the particular suspect is armed with an atypical weapon which would feel like the object felt during the pat-down.'’'’ (Citations and punctuation omitted; emphasis supplied.) Brown v. State, 181 Ga. App. 768 (353 SE2d 572) (1987).

The dissent relies on Hayes v. State, 202 Ga. App. 204 (414 SE2d 321) (1991), for the proposition that an officer is not required under all circumstances to conduct a pat-down before intruding beneath the surface of a detainee’s clothing. Id. at 208-209 (Beasley, J., concurring specially). We agree. However, “[u]nlike [Hayes], the State articulated [no] circumstances [here other than the existence of the ‘little bulge’ in Barrett’s sock] that would have justified a police officer at the scene in suspecting that [Barrett] was armed and dangerous.” Id. at 208. “Ordinarily the officer must pat down and then intrude beneath the surface only if he confirms his ‘reasonable belief or suspicion’ by coming upon something which feels like a weapon.” (Emphasis supplied.) Id. at 208-209. In Hayes, the police officer reached into the suspect’s pocket only after the suspect “refused to subject himself to a pat-down.” Id. at 205. No similar exigent circumstances exist in the present case. The dissent directs us to no case where it is held that an officer may forego a preliminary pat-down even when the suspect is nonthreatening and makes no effort to resist the pat-down merely because the officer sees a bulge in the suspect’s clothing.

The officers conducted no pat-down of Barrett’s clothing whatsoever. This effectively precluded testimony regarding the officers’ tactile impressions of the object concealed in Barrett’s sock. There was also no testimony suggesting that the bulge in Barrett’s sock clearly appeared to be a weapon of any specific type. Moreover, it is undisputed that Barrett’s demeanor was nonthreatening and cooperative.

It is likewise undisputed that Barrett was not under lawful arrest when the vial of cocaine was taken from his sock. Officer Dawson conceded that “if we had not found anything at that point he could have left.” It therefore appears that “no reasonable cause for defendant’s arrest existed when the search was made, and since it was not made in connection with or as an incident to a lawful arrest, the search without a search warrant was itself unlawful. The motion to suppress should have been sustained. [Cit.] That unlawful drugs [were] discovered during the search . . . gave no cause for either the arrest or the search. [Cits.]” Uva v. State, 124 Ga. App. 486, 487 (184 SE2d 200) (1971).

The judgment dénying the motion to suppress is reversed, and the case is remanded to allow Barrett to withdraw his plea and stand trial, if necessary, as agreed by the parties and approved by the trial court.

Judgment reversed and remanded with direction.

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

Birdsong, Presiding Judge,

dissenting.

Although concurring fully in the dissent, I write separately to express my view that the issue raised should not be addressed because appellant’s plea of nolo contendere waived any issue about the denial of his motion. See Hooten v. State, 212 Ga. App. 770 (1) (442 SE2d 836) (1994). While Hooten is not yet in effect, this court has never expressly approved conditional pleas of nolo contendere (see Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89 (114 SE2d 529)), and we should no longer consider issues allegedly preserved by these pleas.

I respectfully dissent. I am authorized to state that Chief Judge Pope and Judge Andrews join in this dissent.

Beasley, Presiding Judge,

dissenting.

As the majority recognizes, quoting from State v. Corley, 201 Ga. App. 320 (411 SE2d 324) (1991), we take the trial court’s findings of fact unless they are clearly erroneous. None of the trial court’s findings are rejected by the majority, and I find no reason to differ in this regard.

In its order, the trial court stated its findings as follows: “The police officers had a reasonable and articulable suspicion to support the original traffic stop. Thereafter, the subsequent pat down of the Defendant’s sock was reasonable to protect the safety of the officers. Conflicts in testimony were resolved adverse to the Defendant, who testified he thought the suspected contraband in his sock was ‘cornbread.’ ” What is inferred by the inclusion of the latter reference is made clear by what the court stated at the conclusion of the evidentiary hearing. The court revealed that defendant’s testimony that he thought the vial contained cornbread helped the court resolve the conflict in the evidence, thus indicating the court’s rejection of defendant’s explanation as unworthy of belief. Defendant had testified that the friend who had bought the merchandise in the Goody’s bag and inadvertently left it on the passenger’s seat, had dropped the vial when leaving Goody’s; that defendant picked it up and was going to return it to him and, when he saw officer Carter signaling him to stop, put the vial in his sock.

The court used the term “pat-down” in a broad sense, as there was no actual preliminary laying on of hands to determine if defendant carried an object which could be a weapon. Such physical investigatory touching of all of the suspect’s clothing to determine if he was armed, a greater intrusion than what transpired, was not necessary in this case, because the officers could see that a hard object was still concealed in defendant’s sock after he removed a roll of four or five bills. The object was three to four inches long and one-half to one inch in diameter, about the size of a Life Saver holder.

1. The question is whether a reasonably prudent person in the circumstances would be warranted in the belief that his safety or that of others was in danger. Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 20 LE2d 889) (1968). The officer was “able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” Sibron v. New York, 392 U. S. 40, 64 (88 SC 1889, 20 LE2d 917) (1968). The evidence supported the trial court’s finding that the information the officer had when he touched and searched the sock warranted a person of reasonable caution to believe that the sock contained a weapon. As repeated in Roberts v. State, 193 Ga. App. 96, 98-99 (386 SE2d 921) (1989), the particular facts and circumstances of each case must be weighed.

Defendant acknowledged to the court below that frisking or patting down that area of defendant’s sock-covered anatomy could have led the officer to believe that it was a pocketknife; his argument was that the officer did not first feel it. However, touching the sock in the area of the object, in order to retrieve it, instantly confirmed to the officer that it was a long hard object, just as he had visually observed, before he removed it. A pat-down or tactile inquiry for the purpose of ascertaining whether defendant possessed what an officer would reasonably believe was a weapon on defendant’s person was not necessary when touching confirmed what the officer already knew, from sight, was an object which appeared to be a knife. “Terry v. Ohio, [supra,] is not authority for the proposition that an officer who has effectuated an investigatory stop of a potentially armed individual is necessarily limited, under all circumstances, to conducting a pat-down. To the contrary, Terry merely held that it was not unreasonable for an officer to have conducted a pat-down of a potentially armed suspect who had actually submitted to that procedure.” Hayes v. State, 202 Ga. App. 204, 206 (414 SE2d 321) (1991).

When the car was stopped which fit the description and had the license number of one involved in the suspected shoplifting and the officer saw the bag from the reported victim store, the intent was formed for Officer Carter to take defendant back to the store in furtherance of the investigation. He did not know if defendant was armed, and when Officer Dawson saw that a bulge remained after defendant removed his money, he feared he had a weapon. It would have been foolhardy at best for Carter to transport defendant back to Goody’s without the assurance that the pocketknife-size bulge in defendant’s sock was not that. Not OCGA § 17-5-30, not Paragraph 13 of the Georgia Bill of Rights, not the Fourth Amendment, require such peril. The Supreme Court has “recognized that investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.” Michigan v. Long, 463 U. S. 1032, 1047 (III) (103 SC 3469, 77 LE2d 1201) (1983). The officer’s action was reasonable, and that is the touchstone. Michigan v. Long, supra at 1051.

Then when he saw, not a knife, but the plastic tube with what appeared to be crack cocaine in plain view, he was authorized to seize it.

2. Defendant also claims that this evidence was obtained in a manner which violated his right against self-incrimination under Paragraph 16 of the Georgia Bill of Rights. Non-resistance or passive resistance to the search would not constitute a violation of the prohibition against compelling a person “to give testimony tending in any manner to be self-incriminating.” This fundamental right is not implicated in these circumstances. He was not compelled to do an act which produced the evidence; he did not yield the vial but rather refused or at least declined to do so. Creamer v. State, 229 Ga. 511 (2) (192 SE2d 350) (1972); State v. Armstead, 152 Ga. App. 56 (1) (262 SE2d 233) (1979). See Ingram v. State, 253 Ga. 622, 634 (7) (323 SE2d 801) (1984).

Decided March 18, 1994

Reconsideration denied April 1, 1994

Russell C. Gabriel, for appellant.

Harry N. Gordon, District Attorney, J. Mark Hatfield, Assistant District Attorney, for appellee.

I am authorized to state that Chief Judge Pope and Presiding Judge Birdsong join in this dissent.


author: Pope, Chief Judge. Andrews, Judge,

text:
    A93A2013, A93A2014.
    CITY OF BUFORD et al. v. WARD; and vice versa.
    (443 SE2d 279)
   Pope, Chief Judge.

When plaintiff was refused a certificate of occupancy for his new garden center, he sued the City of Buford (“the City”), the City Manager (“Peevy”), the Assistant City Manager (“Garrett”), and three members of the City Board of Commissioners. In Case No. A93A2013, the City, Peevy and Garrett appeal from a judgment entered on a jury verdict against them. In Case No. A93A2014, plaintiff appeals directed verdicts entered for the three commissioners and challenges an evidentiary ruling of the trial court.

Case No. A93A2013

We view the evidence presented at trial in a light favorable to the jury verdict. In late 1988, plaintiff decided to open a garden center business on a particular piece of vacant property. This property was located in the City of Buford, on Highway 324 near its intersection with Highway 20. He contacted the City to find out what he needed to do and was referred to defendant Assistant City Manager Garrett, who administered the City’s zoning, planning and licensing/permitting departments as part of his day-to-day duties. Garrett told plaintiff he would need to have a survey and site plan done by an engineer, and plaintiff had this done in May 1989. Several revisions to this site plan were made in response to comments from the City’s engineering consultants, and building began in June 1989. In order to get a building permit, plaintiff had to sign a document stating that he understood that he would have to have a plan approved by the State Department of Transportation (DOT) and would have to build a deceleration/acceleration lane along Highway 324 before a certificate of occupancy would be issued. Despite this “letter of understanding,” however, the parties continued to dispute just how long the deceleration/acceleration lane needed to be. Plaintiff obtained DOT approval for his plan and eventually built a deceleration/acceleration lane longer than the DOT required, but the City continued to insist that he extend the lane all the way to the intersection of Highways 324 and 20. Between June 1989 and February 1990, the building progressed and the City inspector visited the site numerous times without noting any problems. In February 1990, however, the City informed plaintiff that he would not be issued a certificate of occupancy due to: the inadequacy of the deceleration/acceleration lane; differences between the building as built and as projected on the approved plans, including the placement of parking spaces; the fact that the building was three inches short of the City’s side set-back requirement; and the fact that the siltation pond was not functioning properly. Although all these reasons were given, City Manager Peevy testified that the deceleration/acceleration lane dispute was the major problem, and that the others probably could have been worked out. Plaintiff and his lawyer met with Peevy, Garrett and the City’s attorney and demanded that the City issue the certificate of occupancy. At that meeting, the City attorney’s response to plaintiff’s demand was: “We ain’t got to do a damn thing. If you don’t like it, that’s what the courts are for.”

Plaintiff did go to court seeking equitable relief and after a hearing on March 22, 1990, obtained a certificate of occupancy. Plaintiff opened his garden center shortly thereafter, but he went out of business the following November and went bankrupt in December 1990. After receiving his discharge in bankruptcy in March 1992, plaintiff pursued this action for damages, alleging that Peevy, Garrett and the commissioners had damaged him by acting oppressively and without authority of law (OCGA § 36-33-4); that the City was liable for damage caused by the improper or unskillful performance of a ministerial duty (OCGA § 36-33-1 (b)); and that the City, Peevy, Garrett and the three City commissioners had violated his civil rights (42 USC § 1983). The trial court directed a verdict for the commissioners on all of plaintiff’s claims against them, but the jury awarded plaintiff $30,000 on the OCGA § 36-33-4 claim against Peevy and Garrett individually, $100,000 on the OCGA § 36-33-1 (b) claim against the City, and $100,000 on the civil rights claim against the City, Peevy and Garrett. The jury also awarded punitive damages of $1,000 against Peevy and $10,000 against Garrett on the civil rights claim, and attorney fees and costs in the amount of $50,000 on the OCGA § 36-33-1 (b) claim, for a total of $291,000.

1. Defendants Peevy and Garrett argue that plaintiff failed to prove a cause of action against them under OCGA § 36-33-4. This Code section provides in pertinent part that officers of a municipal corporation “shall be personally liable to one who sustains special damages as the result of any official act of such officers if done oppressively, maliciously, corruptly, or without authority of law.”

Peevy and Garrett implemented a City policy under which the issuance of a business’s building permit or certificate of occupancy could be conditioned upon the completion of a deceleration/acceleration lane on an adjacent public roadway whenever and to whatever extent Peevy and Garrett (albeit with the advice of the City’s engineers) deemed such a lane necessary to facilitate traffic flow. At best, the authority for this policy was a zoning law which purported to incorporate unspecified DOT regulations which discussed generally the use of deceleration/acceleration lanes to facilitate traffic flow. Although it is understandable that the need for such lanes will vary with the circumstances, we note that there is nowhere even a listing of guidelines or factors to be considered in determining whether and to what extent these lanes are needed. Cities may place conditions on the operation of a business enterprise in the exercise of their police powers, but to be valid such conditions must be based on an ordinance “written with sufficient specificity to apprise all parties concerning the . . . required conditions” and the conditions “would have to apply uniformly to all persons and firms concerned.” City of Hawkinsville v. Wilson & Wilson, Inc., 231 Ga. 110, 111 (2) (200 SE2d 262) (1973). Because the policy implemented by Peevy and Garrett gave them unfettered discretion and was not based on an ordinance setting forth guidelines or factors for consideration with sufficient specificity to apprise citizens of what to expect, actions taken pursuant to this policy were taken without authority of law. We further note that plaintiff presented evidence of numerous other business enterprises in the City (including one partially owned by defendant Garrett) which had not been required to build deceleration/ acceleration lanes, or had been required to build much less extensive ones. Although the City was able to articulate reasons for these differences, there was no way for the public to know these reasons, and these differences in application of the policy demonstrate the problem of unfettered discretion on the part of officials without the benefit of specific written guidelines.

Peevy and Garrett argue that even if their actions were without legal authority, they are not liable under OCGA § 36-33-4 because plaintiff did not sustain special damages. However, plaintiff testified at trial that because of Peevy and Garrett’s unauthorized demands, he expended $2,800 to extend his deceleration/acceleration lane beyond the length required for DOT approval. Contrary to defendants’ assertion, this was sufficient to show special damages, whether this means individual damages in which the public has not participated, see OCGA § 51-1-7, or actual damages which must be specifically proved, see Kennedy v. Johnson, 205 Ga. App. 220 (1) (421 SE2d 746) (1992). Nor can we agree with defendants that the statute limits the municipal officers’ liability to actual damages. Furthermore, defendants’ reliance on Hawkinsville, supra, to support their assertion that plaintiff cannot recover under this statute because he did not show they acted with malice in the performance of a non-discretionary, ministerial duty is misplaced. See Hawkinsville, 231 Ga. at 111-112 (3). The Supreme Court in Hawkinsville discussed malice because malice was alleged, but the statute clearly supports recovery where actions are taken “oppressively, maliciously, corruptly, or without authority of law.” (Emphasis supplied.) OCGA § 36-33-4. Moreover, the non-discretionary, ministerial nature of the duty was important in Hawkinsville because the defendants would otherwise have been able to rely on sovereign immunity. In this case, on the other hand, it is undisputed that sovereign immunity has been waived by the purchase of insurance. Accordingly, plaintiff established the necessary elements of a cause of action under OCGA § 36-33-4, and the trial court did not err in denying Peevy and Garrett’s motion for j.n.o.v. on this count.

2. Citing Wheeler v. City of Pleasant Grove, 833 F2d 267 (11th Cir. 1987), defendants contend the trial court should have charged the jury that the proper measure of damages under OCGA § 36-33-4 was “the return on the portion of fair market value that is lost as a result of the regulatory restriction.” However, Wheeler is a regulatory takings case while a claim under OCGA § 36-33-4 is essentially a tort action in which general as well as compensatory damages may be recovered. Thus, the trial court did not err in rejecting defendants’ requested charge.

3. However, the City’s argument that plaintiff has no cause of action against it under OCGA § 36-33-1 (b) and/or § 51-1-6 has merit. The latter Code section does not create a cause of action, of course; it simply authorizes the recovery of damages for a breach of a legal duty. And contrary to plaintiff’s contention, OCGA § 36-33-1 (b) does not create a duty on the part of cities to perform all acts properly and skillfully. Instead, this provision that cities shall be liable for “improper or unskillful performance of their ministerial duties” simply creates an exception from sovereign immunity for cities’ negligence in proprietary or non-governmental matters. See Sinkfield v. Pike, 201 Ga. App. 652 (3) (411 SE2d 889) (1991). As defendants’ waiver of sovereign immunity was undisputed in this case, OCGA § 36-33-1 (b) was inapplicable. Thus, the trial court erred in instructing the jury on this Code section and the City’s motions for directed verdict and j.n.o.v. should have been granted as to this cause of action.

4. Defendants also argue that their motion for j.n.o.v. as to plaintiff’s claims under 42 USC § 1983 should have been granted because the evidence was insufficient to establish a violation of plaintiff’s constitutional rights as a matter of law. We agree.

(a) To establish that his substantive due process rights were violated, plaintiff had to show that the denial of his certificate of occupancy as the result of his failure to extend the deceleration/acceleration lane deprived him of a protected property interest, and that defendants’ actions in doing so were without rational basis. D. C. A. Dev. Corp. v. Ogden City Municipal Corp., 965 F2d 827, 829 (10th Cir. 1992); Spence v. Zimmerman, 873 F2d 256, 258-261 (11th Cir. 1989). An applicant has a property interest in a certificate of occupancy only if the local government must issue a certificate if certain requirements are met and all those requirements are in fact met. Spence, 873 F2d at 258. In this case, the evidence shows that when the certificate was denied, the finished building differed from the building as projected on the approved plans, the building failed to comply with the City’s set-back requirements, and the required siltation pond was not functioning properly. Thus, despite evidence that the denial of the certificate was primarily based on plaintiff’s failure to meet the unlawfully imposed lane requirement, plaintiff’s failure to comply with these other legal requirements means that he did not have a protected property interest in the certificate of occupancy. Furthermore, despite the unlawful nature of the extended deceleration/acceleration lane requirement, it did have a rational basis — the promotion of the City’s legitimate interest in facilitating traffic flow. And contrary to plaintiff’s assertion, defense counsel’s statement of defendants’ position and suggestion that plaintiff go to court if he disagreed did not render defendants’ otherwise rational acts arbitrary and capricious. See also Spence, 873 F2d at 262 (disputes involving land use regulation by local governments will rarely if ever implicate constitutional rights).

(b) Plaintiff also alleged that defendants violated his equal protection rights by requiring him to build a deceleration/acceleration lane longer than those required of other similarly situated landowners. “Because the challenged conduct does not implicate a suspect classification or fundamental right, plaintiffs must also show that [defendants’J actions were not rationally related to a legitimate state interest.” D. C. A. Dev., 965 F2d at 829. As noted above in Division 1, plaintiff presented evidence of other businesses which were not required to build deceleration/acceleration lanes of such length. However, none of these businesses were similarly situated in terms of their proximity to the intersection of two major State roads. Thus, any disparity in treatment was rationally related to the legitimate interest in facilitating traffic flow, and the trial court erred in submitting this claim to the jury as well.

Case No. A93A2014

5. In his cross-appeal, plaintiff argues that the trial court erred in directing verdicts for the three individual commissioners. Plaintiff informed the commissioners of his dispute with the City Manager and Assistant City Manager and the commissioners did not intervene on plaintiff’s behalf. However, the commissioners were not directly involved in any of the decisions made with respect to plaintiff’s certificate of occupancy; nor was it their job to be directly involved in such decisions. A citizen cannot make a member of what is essentially the legislative branch of city government responsible for the alleged torts of a member of the executive branch by writing the former a letter complaining about the actions of the latter. Accordingly, the trial court did not err in directing verdicts for the three commissioners.

6. Because we have upheld plaintiff’s claim that defendants’ requirement of an extended deceleration/acceleration lane was without lawful authority, we need not address plaintiff’s contention that the City’s zoning ordinance and related regulations, on which defendants’ authority was purportedly based, should not have been admitted.

Judgment in Case No. A93A2013 affirmed in part and reversed in part. Judgment in Case No. A93A2014 affirmed.

McMurray, P. J., Birdsong, P. J., Beasley P. J., Cooper, Johnson, Blackburn and Smith, JJ., concur. Andrews, J., concurs in part and dissents in part.

Andrews, Judge,

concurring in part and dissenting in part.

I respectfully concur in Divisions 2 through 5. Nonetheless, I dissent from Division 1, in which the majority concludes that plaintiff proved a cause of action against Peevy and Garrett under OCGA § 36-33-4. Peevy and Garrett implemented a broadly-drafted City policy which allowed them to exercise discretion. The opinion states that “these differences in application of the policy demonstrate the problem of unfettered discretion on the part of officials without the benefit of specific written guidelines.” (Majority op., p. 754.)

Although the discretion allowed under the policy may be less than ideal, the fact that the policy allows for discretionary implementation should not subject Peevy and Garrett to individual liability. OCGA § 36-33-4 provides that “officers of a municipal corporation shall be personally liable to one who sustains special damages as the result of any official act of such officers if done . . . without authority of law.” Here, the officers acted with the authority of law — the law was simply overly broad.

The instant matter is distinguishable from City of Hawkinsville v. Wilson & Wilson, Inc., 231 Ga. 110, 111 (2) (200 SE2d 262) (1973), since the tax ordinance at issue in that case allowed for no discretion. In fact, in Hawkinsville, the court stated that a plaintiff must prove that the officials “acted contrary to a non-discretionary, ministerial duty.” The ordinance in that case fixed the license tax only and the City officials had no authority to impose any conditions other than the payment of a tax. Although the Hawkinsville court stated, in dicta, that a valid licensing ordinance required specificity and uniformity, the allowance of discretion in an ordinance does not necessarily conflict with these requirements.

Because of my conclusion with regard to Division 1, unlike the majority opinion, I must address the substantive merits of Division 6. That division focuses on Ward’s claim in the cross-appeal that the trial court erred in admitting into evidence the City zoning and subdivision ordinance. The resolution of this issue is important, since evidence of the ordinance was necessary in order to determine that Peevy and Garrett acted within the scope of their legal authority.

The court took judicial notice of the Buford City Charter, which provided that all acts and doings of the City Commission shall be recorded on the minutes. Citing Toomey v. Norwood Realty Co., 211 Ga. 814, 816-817 (1) (89 SE2d 265) (1955), Ward argues that the zoning and subdivision ordinance was not recorded on the minutes as required by the charter and therefore it had no force.

This argument lacks merit. The minutes of a July 16, 1985 commission meeting during which the relevant ordinance was adopted were introduced into evidence. Those minutes showed that an ordinance was adopted on that date. Although the minutes do not specifically cite the ordinance, the ordinance itself, which was certified by a City clerk, showed that it was enacted by the City Commission on July 16, 1985. An extra certification attached to the ordinance verified that the Buford Zoning Ordinance and Subdivision was adopted by the Buford City Commission after a public hearing on the 16th day of July 1985. Thus, although the minutes from that meeting itself were somewhat unclear as to which ordinance was adopted, the ordinance itself provided the necessary information and the requirements of the charter were met.

Ward argues that the minutes of the Commission do not sufficiently incorporate by reference the ordinance. “The tests to be fulfilled to effectively accomplish adoption of documents ... by incorporation by reference ... are these: (1) The document must be sufficiently identified so that there is no uncertainty as to what was adopted. (2) The document must be made a public record. (3) It must be accessible to members of the public who are, or may be affected by it. (4) The adopting resolution must give notice of this accessibility.” (Citations and punctuation omitted.) Reynolds v. Bd. of Commrs. of Paulding County, 180 Ga. App. 516 (349 SE2d 536) (1986). Here, the minutes and ordinance together meet these requirements of incorporation by reference and, contrary to Ward’s arguments, the ordinance was sufficiently identified and made part of the public record. See Friedman v. Goodman, 219 Ga. 152 (3) (b) (132 SE2d 60) (1963); compare City of Flovilla v. McElheney, 246 Ga. 552 (272 SE2d 287) (1980); Foskey v. Kirkland, 221 Ga. 773, 775 (147 SE2d 310) (1966). Accordingly, the ordinance was properly admitted into evidence and Ward’s claim is without merit.

Decided March 17, 1994

Reconsideration denied April 1, 1994

Sullivan, Hall, Booth & Smith, Jack G. Slover, Jr., Jeffrey T. Wise, Drew, Eckl & Farnham, T. Bart Gary, Theodore Freeman, Chandler & Britt, Walt M. Britt, for appellants.

G. Gibson Dean II, for appellee.

       In Kennedy the plaintiff did not argue that “special damages” as used in OCGA § 36-33-4 means individual rather than actual damages. The plaintiff in this case does make that argument, and we think it has merit.


text:
    A93A2124.
    PAULDING MEMORIAL MEDICAL CENTER v. MESSAADI.
    (442 SE2d 875)
   Pope, Chief Judge.

Plaintiff Judy Messaadi sued defendant Paulding Memorial Medical Center (the hospital) for injuries resulting from a fall she suffered while an invitee on the defendant hospital’s premises. We granted the hospital’s application for interlocutory appeal from the trial court’s denial of its motion for summary judgment.

Plaintiff took her small daughter to the emergency room because her daughter was running a high fever. Before the treatment of her daughter was completed, there was an electrical failure in the emergency room, leaving the treatment room plaintiff and her daughter were in completely dark. Using a flashlight to light her way, a nurse came to the doorway of the treatment room and told plaintiff, “You all come out.” Instead of staying in the room to assist plaintiff and her sick daughter out of the dark room or offering plaintiff a flashlight to use, the nurse instead left and went to the next room and told the patients waiting there to also go into the waiting room. Plaintiff picked up her sick child and attempted to exit the room as she was ordered. As she did, she tripped over a stool attached to the end of her daughter’s treatment bed, causing both plaintiff and her daughter to fall. Plaintiff testified that it was so dark that she would have been unable to see the stool even if she had looked down at it. When asked if she thought she could see well enough to get to the door as she started to exit the room, she responded: “I didn’t think. They just said come out, and I was doing what I was told to do.”

Under the facts of this case, we hold the trial court correctly denied the defendant hospital’s motion for summary judgment. Plaintiff was ordered to leave the room while an emergency situation existed in the hospital. She did not choose to take her daughter and wander out of the room in the darkness. An emergency situation existed in the hospital of which plaintiff was not fully aware. Plaintiff was not in a position to knowingly evaluate whether it was more dangerous to remain in the room when she had been ordered to leave by the nurse or follow the nurse’s instruction, a person more familiar with the hospital and the existing situation. Plaintiff properly sought to do what was necessary to ensure her safety and the safety of her daughter, as well as obtain medical treatment for her daughter. In this case, “there was no deliberate choice of an obviously perilous course of conduct without restriction of choice by the circumstances or coercion.” Kitchens v. Winter Co. Builders, 161 Ga. App. 701, 703 (289 SE2d 807) (1982). For these reasons the dissent’s position that plaintiff’s recovery is barred as a matter of law in this case because one who chooses to walk in darkness assumes the risk of their action absent coercive conduct on the part of the defendant must be rejected. It defies logic to suggest that plaintiff should ignore the order of medical personnel under these circumstances and remain in a room she had been ordered to leave. Nor can I agree with the dissent’s suggestion that the danger should be deemed obvious in this case because plaintiff should remember where everything was located in the room she had only been in briefly and be able to successfully pilot her way in complete darkness.

Furthermore, the dissent’s reliance on our decision in Meriwether Mem. Hosp. Auth. v. Gresham, 202 Ga. App. 535 (414 SE2d 694) (1992) is misplaced as that case is factually inapposite. In that case, the plaintiff was called away from her husband, who was lying on a sheet-draped gurney, in a lighted hospital room. As she moved from his side, she tripped over one of the wheels of the gurney and fell. Id. at 536. Under those circumstances, we held that the wheels of a gurney were a usual obstruction and the fact that the wheel on which plaintiff tripped was covered by a sheet did not render the defendant liable since a sheet-draped gurney was neither an unusual obstruction or a defective condition in a hospital. Id. at 536-537.

This case is remanded to the trial court to allow a jury to determine if the conduct of the defendant can be considered coercive under the facts of this case, and whether under these circumstances plaintiff, in the exercise of ordinary care, should have refused to comply with the nurse’s directive.

Judgment affirmed and case remanded.

Beasley, P. J., Cooper, Johnson, Blackburn and Smith, JJ., concur. McMurray, P. J., Birdsong, P. J., and Andrews, J., dissent.

Andrews, Judge,

dissenting.

Messaadi testified that upon her arrival at Paulding Memorial Medical Center (the hospital), she and her child were taken to a treatment room. As her child was placed on an examination table, a hospital nurse pulled out a small stool attached to the table, which was used as a step up. A short time later as Messaadi was sitting next to the table by her child, the electricity at the hospital went off during a rainstorm. Messaadi testified that it was so dark in the treatment room she could not see anything in the room, not even the doorway. A hospital nurse came by the doorway to the room with a flashlight and told Messaadi and some other persons, who were also in the room, to come out into the waiting room. Messaadi picked up her child, and as she walked past the examination table toward the door, she tripped and fell over the stool she had just seen pulled out from the end of the table. As the majority notes, Messaadi admitted it was so dark in the room when she got up to leave that she would have been unable to see the stool even if she had looked down at it. When asked if she thought she could see well enough to get to the door as she started to exit the room, Messaadi responded: “I didn’t think. They just said come out, and I was doing what I was told to do.”

The existence of the examining table stool was not a defect in the premises, but a usual obstruction one could expect in this hospital setting. See Meriwether Mem. Hosp. v. Gresham, 202 Ga. App. 535, 536 (414 SE2d 694) (1992). Additionally, even if she could not see the stool in the dark, Messaadi obviously knew of the existence and location of the stool because she saw the nurse pull it out shortly before she tripped over it. There is no duty to warn of obvious dangers where the invitee knows or should know of its existence. Id. at 536.

The fact that the room was dark as a result of the electrical failure at the hospital does not excuse Messaadi from exercising reasonable care under the circumstances. “It is an act of negligence to go on or over premises where it is to be reasonably expected that obstructions incident to a business activity exist and are concealed by the darkness. In such circumstances, one who chooses to walk in darkness does not exercise ordinary care for his own safety.” (Citations and punctuation omitted.) Id. at 537. Nor does the fact that a hospital nurse told her to come to the waiting room alter the rule requiring the exercise of ordinary care. “A person cannot undertake to do what obviously is a dangerous thing, even if he is directed by another, without' assuming the risks incident thereto and without himself being guilty of such lack of due care for his safety as to bar him from recovery.” Forde v. C & S Ga. Corp., 178 Ga. App. 400, 402-403 (343 SE2d 164) (1986).

Decided March 17, 1994

Reconsideration denied April 1, 1994.

Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Pat M. Anagnostakis, Todd M. Yates, for appellant.

Peter M. Blackford, John E. Gilchrist, for appellee.

Contrary to the majority’s position, this case does not contain the coercive elements addressed in Kitchens v. Winter Co. Builders, 161 Ga. App. 701, 702-703 (289 SE2d 807) (1982). In Kitchens we concluded that a construction worker told to do certain dangerous work was faced with the coercive circumstances of either continuing the dangerous work with full appreciation of the danger, or refusing to work and losing his job. Under those circumstances, we found a question of fact existed as to whether or not the worker assumed the risk of pursuing a known dangerous course of conduct. In the present case, there was no similar evidence of coercion. There was no evidence of an emergency situation which posed a threat to Messaadi or her child. The lights went out. It was dark. A nurse told her to leave the darkened room. Under these circumstances, logic and common sense would dictate that if, as Messaadi contends, it was obviously too dark to safely walk out of the room, she should have stayed put and informed the nurse of that fact. Messaadi assumed the risk of blindly walking in a totally darkened room. See Meriwether, supra; Forde, supra. The hospital was entitled to summary judgment.

I am authorized to state that Presiding Judge McMurray and Presiding Judge Birdsong join in this dissent.


author: Beasley, Presiding Judge.

text:
    A93A2182.
    CANDLER GENERAL HOSPITAL, INC. v. PERSAUD et al.
    (442 SE2d 775)
   Beasley, Presiding Judge.

The administrators of Persaud’s estate filed this medical-malpractice/wrongful-death renewal action against Candler General Hospital, Dr. Freeman, his professional association, and Dr. Thomas. We granted Candler’s application for interlocutory appeal of the denial of its motion for summary judgment.

On about February 15, 1990, decedent was referred to Dr. Freeman for consultation and treatment of gallstones, which were infected. He recommended that she undergo a surgical procedure known as a laparoscopic cholecystectomy. On February 16, Dr. Freeman requested that the hospital grant him temporary privileges to perform this procedure with an experienced laparoscopist. He submitted a certificate of completion of a laparoscopic laser cholecystectomy workshop which he took on February 10, 1990. The president of the hospital granted these privileges to Dr. Freeman on the terms requested by him on the same day he made the request. The procedure was performed by Dr. Freeman, assisted by Dr. Thomas, on February 20.

The complaint, supported by an expert’s affidavits, alleges that the procedure was performed by the doctors negligently, as a result of which Persaud bled to death. The complaint charges Candler with negligence in permitting Freeman, assisted by Thomas, to perform this procedure on decedent without having instituted any standards, training requirements, protocols or otherwise instituted any method for judging the qualifications of a surgeon to perform such procedure. It alleges that Candler knew or reasonably should have known that it did not have a credentialing process which could have assured the hospital of the doctors’ education, training, and ability to perform this procedure.

Candler sought summary judgment. It pointed out that plaintiffs’ own expert testified that Freeman and Thomas did not deviate from the applicable standard of care in the performance of the laparoscopic cholecystectomy. It argued that the evidence is thus undisputed that there is no element of causation, even assuming arguendo that Candler negligently credentialed Freeman and negligently allowed the surgery to go forward. Candler later added that under Georgia law, the mere allegation that a hospital was negligent in allowing or permitting a duly licensed physician or surgeon to practice a branch of surgery or medicine in which he was not specially skilled, is not sufficient to render the hospital liable to a patient for injuries inflicted on the patient solely by reason of the doctor.

In support of the latter theory, Candler submitted the affidavit of the chairman of Candler’s department of surgery, who along with other members of the surgery department makes recommendations to the president of the hospital regarding extension of staff privileges to surgeons. He testified that prior to the surgery in question Freeman had been appointed to the active surgical staff at Candler for general surgical privileges, which included general abdominal surgery and cholecystectomy. He was personally aware that Dr. Freeman had accomplished many cholecystectomies and was experienced and competent in this surgical procedure. The chairman testified in effect that the hospital was not negligent either in its appointment or retention of Dr. Freeman on Candler’s surgical staff.

Candler also relied on an exhibit as showing that Dr. Thomas was an experienced, qualified laparoscopist on the staff of Candler with training in laser technique. However, plaintiff’s expert testified that Dr. Thomas is a gynecologist who acted as assistant surgeon in this case, and that Dr. Thomas admits he does not possess the skills in the procedure of laparoscopic laser cholecystectomy.

The trial court denied Candler’s motion for summary judgment, on the ground that plaintiffs’ evidence is sufficient to raise a question of fact regarding whether a surgical permit should have been issued by the hospital to Dr. Freeman.

1. Candler’s argument on appeal is that under the holding in Division 2 of Clary v. Hosp. Auth. of the City of Marietta, 106 Ga. App. 134, 135 (126 SE2d 470) (1962), there is no cause of action against a hospital based solely on the issuance of a surgical permit for a specific procedure to an independent surgeon already duly and properly appointed to its active surgical staff.

Clary supports Candler’s argument.

In Clary, plaintiff was a patient, at the defendant hospital, of the individual defendant doctors, a general surgeon and a general practitioner. Plaintiff alleged that the hospital was negligent in knowingly allowing the doctors who were not specialists to practice a routine procedure within the field of thoracic surgery contrary to its bylaws, rules and regulations, and accepted standards of medicine.

We held in Division 1: “Ordinarily, a physician or surgeon on the staff of a hospital is not an employee of such hospital, and in the absence of allegations that the hospital was negligent in the selection of an unskillful physician or surgeon or that the hospital undertook to direct him in the way and manner of treating the patient, the hospital is not liable for the mere negligent performance of professional services by a physician or surgeon on its staff. [Cit.]” 106 Ga. App. at 134-135 (1).

We further held in Division 2: “A physician or surgeon, being an independent contractor following a separate calling (cit.), under the rule announced in the first headnote, the mere allegation that the hospital was negligent in allowing or permitting a duly licensed physician or surgeon to practice a branch of surgery or medicine in which he was not specially skilled is not sufficient to render the hospital liable to a patient for injuries inflicted on the patient solely by reason of the negligence of the doctor.”

2. However, the doctrine of independent negligence, as expounded by the Georgia Supreme Court in Joiner v. Mitchell County Hosp. Auth., 125 Ga. App. 1, 2 (1) (186 SE2d 307) (1971), aff'd 229 Ga. 140 (189 SE2d 412) (1972), authorizes the imposition of liability against a hospital under the allegation stated in Division 2 of Clary.

Plaintiff Joiner, who had brought her husband into the hospital for emergency treatment, alleged that the negligence of the treating physician who was on the staff of the hospital resulted in her husband’s death. She also sought to hold the hospital liable, not under the doctrine of respondeat superior or principal and agent, but rather upon the doctrine of independent negligence, in permitting the alleged negligent physician to practice his profession in the hospital when his incompetency was known. 229 Ga. at 141. Joiner identified negligence as failing to investigate and require satisfactory proof of the physician’s qualifications and as failing to exercise care in determining his professional competency.

This court held that while the hospital satisfied one of the requirements of Clary by showing that it did not undertake to direct the doctor in the way or manner of treating the patient, it failed to overcome plaintiff’s averment that it was negligent in the selection of an unskilled physician.

The Supreme Court granted certiorari to review this court’s decision with respect to the responsibility of a hospital authority in permitting an unqualified physician to serve on its staff, although such physician holds a valid license from the state to practice medicine. 229 Ga. at 141. It affirmed this court and stated that under decisions it had rendered (since Clary), a hospital has authority to examine the qualifications of any physician seeking staff privileges and to limit his or her practice to those procedures or areas it deems the physician qualified for, or to completely bar the physician from such practice because of incompetency, lack of qualifications, inexperience or recklessness. 229 Ga. at 142.

The question in this case is whether this authority recognized by the Supreme Court in Joiner gives rise to a duty which the hospital owes to a patient when: (1) the patient rather than the hospital selected the independent staff surgeon to perform the procedure at issue, and (2) the hospital was allegedly negligent, not in its appointment or retention of the surgeon on its staff, but rather in its grant to him of privileges to practice a procedure which he allegedly was not qualified to perform.

Decided February 28, 1994

Reconsideration denied April 1, 1994

Bouhan, Williams & Levy, Joseph A. Mulherin III, Frank W. Seiler, for appellant.

Beckmann & Pinson, William H. Pinson, Jr., Roberson & Haugabrook, David Roberson, Fendig, McLemore, Taylor & Whitworth, James B. Durham, for appellees.

As have cases in other jurisdictions, we interpret Joiner as authority in support of the proposition that a hospital has a direct and independent responsibility to its patients to take reasonable steps to ensure that staff physicians using hospital facilities are qualified for privileges granted. Johnson v. Misericordia Community Hosp., 301 NW2d 156, 165 (4) (Wis. 1981); see Pedroza v. Bryant, 677 P2d 166, 169, 171 (Wash. 1984); Elam v. College Park Hosp., 183 Cal. Rptr. 156,164 (8) (4th Dist. 1982). The hospital did owe a duty to plaintiffs’ decedent to act in good faith and with reasonable care to ensure that the surgeon was qualified to practice the procedure which he was granted privileges to perform. While there is no evidence of the surgeon’s curtailment or denial of staff privileges at other hospitals as in Johnson, or of any prior malpractice claim as in Elam, Candler does not dispute that there is a material issue of fact on the question of whether it was negligent in its grant of the staff privileges requested. Compare Sheffield v. Zilis, 170 Ga. App. 62, 63 (1) (316 SE2d 493) (1984).

Judgment affirmed.

Cooper, J., concurs. Smith, J., concurs in the judgment only.

       In their complaint, plaintiffs also asserted claims against the doctors for failure to obtain decedent’s informed consent, and Candler was charged with negligence in permitting the doctors to perform the surgery without her informed consent. Plaintiffs’ counsel later conceded that Candler was not bound by the terms of Georgia’s informed-consent statute. For this reason, this issue was not mentioned in the court order denying Candler’s motion for summary judgment. After the order was entered, Candler asked that the order be clarified to show that Candler is entitled to summary judgment on this issue. The court did so.

       Plaintiffs also argue that by issuing the surgical permit Candler undertook to direct Freeman in the way and manner of treating the patient. However, this is a ground for holding the hospital vicariously liable for Freeman’s negligence. See Pogue v. Hosp. Auth. of DeKalb County, 120 Ga. App. 230 (170 SE2d 53) (1969). Plaintiffs have asserted no such claim in their pleadings and did not advance this argument in the trial court. It cannot now be urged. Kennedy o. Johnson, 205 Ga. App. 220, 222 (1) (421 SE2d 746) (1992).