text:
    76616.
    MEANS v. THE STATE.
    (372 SE2d 484)
   Benham, Judge.

Appellant was convicted in a bench trial of trafficking in cocaine (OCGA § 16-13-31).

1. In his first enumerated error, appellant contends the trial court erred in denying his motion to suppress. The evidence presented during the suppression hearing revealed that Paul Markonni, an agent for the Drug Enforcement Administration (DEA) and a Clayton County deputy sheriff, approached appellant in Harts-field International Airport and requested that appellant submit his person and his tote bag to a search. Markonni testified that appellant agreed to the request and accompanied Markonni and another agent to a private office where a plastic bag containing 121 small plastic bags, each containing a tan, chunky substance that Markonni believed to be crack cocaine, was found within appellant’s pants near his lower abdomen. While appellant testified that he did not consent to a search of his person, there was evidence presented from which the trial court could conclude that appellant had given consent to a search of his person and that the contraband was discovered during the search conducted pursuant to that consent. The trial court did not err in denying appellant’s motion to suppress in light of evidence that appellant consented to the search. See Wilson v. State, 179 Ga. App. 780 (1) (347 SE2d 709) (1986).

2. Appellant next contends that the evidence was insufficient to sustain his conviction for possession of more than 28 grams of a mixture with a purity of more than ten percent cocaine. OCGA § 16-13-31. Appellant maintains that the State failed to substantiate that appellant was carrying more than 28 grams.

The forensic chemist from the DEA regional laboratory in Miami testified that the contents of the 121 plastic baggies “all appeared to be alike”; that he selected 20 baggies at random and tested the contents of each for the presence of cocaine; that each tested consistent with the presence of cocaine; that the aggregate weight of the contents of the 20 bags was 6.86 grams; that he ground the contents of the 20 bags together and removed a portion for more detailed testing; and that the portion tested out as 95 percent pure cocaine.

The forensic chemist admitted he did not actually weigh the contents of the 121 bags but extrapolated a total weight of 41.5 grams from the fact that 20 bags weighed 6.86 grams, making the average weight of each of the 20 bags .343 grams, and multiplying .343 grams times 121 bags (41.503 grams). The total weight of the contraband affects two essential elements of the crime of trafficking in cocaine: the accused must have 28 grams of a mixture and that mixture must be at least 10 percent pure cocaine. OCGA § 16-13-31. Appellant argues that the chemist’s failure to test and weigh every tan-colored chunk leaves room for reasonable doubt that the entire amount exceeded 28 grams and had a purity greater than 10 percent.

Decided September 6, 1988.

Joseph M. Todd, for appellant.

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

It was not necessary for the State to prove that each of the tan chunks seized contained cocaine. The State need only prove beyond a reasonable doubt that the total weight of the chunks confiscated exceeded 28 grams, and that cocaine made up at least 10 percent of the total amount seized. The State introduced evidence that random samples were taken in accordance with DEA laboratory standard operating procedures and that the samples were found to contain 95 percent cocaine. The jury could reasonably infer that all the chunks contained cocaine. See Coop v. State, 186 Ga. App. 578 (3) (367 SE2d 836) (1988); Meeks v. State, 178 Ga. App. 9 (3) (341 SE2d 880) (1986).

The failure to weigh the entire amount of cocaine mixture is more problematical. While the courts have condoned random sampling to ascertain the chemical makeup of suspected contraband, the entire amount of contraband is generally not in question, because the authorities have weighed it. The State now seeks judicial approval of extrapolating total weight from the average weight of random samples. We are reluctant to place an unconditional imprimatur upon such a method. However, where as here, the evidence is undisputed that all 121 baggies contained pieces of contraband that were visually alike and the factfinder was able to make its own determination of the uniformity of the pieces of contraband since the contents of the 121 baggies were entered in evidence, we agree that there was sufficient evidence from which a rational finder of fact could conclude that appellant possessed more than 28 grams of a mixture containing cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); OCGA § 16-13-31 (a) (1).

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    76624.
    LESTER v. THE STATE.
    (372 SE2d 486)
   Sognier, Judge.

Appellant pled guilty to escape and he appeals. We denied counsel’s request to withdraw, and the only possible error enumerated relates to the legality of appellant’s sentence.

Decided September 6, 1988.

K. Van Banke, for appellant.

Robert E. Keller, District Attorney, for appellee.

The trial judge conducted a full hearing on appellant’s plea of guilty and explained the meaning and effect of such a plea, including the sentence that appellant could receive. Appellant stated that he understood the meaning and effect of his plea of guilty, was pleading guilty voluntarily because he was guilty, and was satisfied with his counsel. The State recommended that appellant receive a sentence to three years confinement, to run consecutively with the sentence appellant was serving for armed robbery. Appellant stated that he understood the sentence which could be imposed, and the State’s recommendation was satisfactory to him. The court then sentenced appellant in accordance with the State’s recommendation, with the proviso that he be credited with time served after his arrest for escape. After imposing sentence, the trial judge asked appellant if he still desired to plead guilty; appellant replied that he did not want to withdraw his plea of guilty.

The trial judge then directed appellant’s counsel to research the law as to whether a person escaping from confinement in a jail that had no authority to hold felons could be sentenced for a felony escape. Counsel stated he would do so, but also stated that appellant was in lawful custody and made no objection to the sentence. The results of counsel’s research, if completed, are not contained in the record. However, we find no error in the court’s sentence.

OCGA § 16-10-52 (a) (1) provides that a person commits the offense of escape when, after conviction of a felony or misdemeanor, he intentionally escapes from lawful custody or confinement. Subsection (b) of the same statute requires a sentence of not less than one nor more than five years of confinement upon conviction of escape. There is nothing in the statute concerning the place of confinement which would affect the punishment authorized upon conviction of the offense of escape. Appellant was advised that he could receive a sentence of one to five years and his sentence was within the maximum sentence authorized. This court will not review for legal error any sentence which is within the statutory limits. Branch v. State, 182 Ga. App. 818, 820 (3) (357 SE2d 136) (1987). Thus, we find no error in the sentence, since appellant was serving a sentence to confinement for armed robbery, a felony, at the time of his escape.

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


author: Beasley, Judge.

text:
    76635.
    TOMLINSON v. THE STATE.
    (373 SE2d 25)
   Beasley, Judge.

Defendant appeals his conviction of armed robbery, OCGA § 16-8-41, on the ground that the court improperly denied his motion to suppress made solely on federal Fourth Amendment grounds.

Defendant was arrested around 2:30 a.m. on July 31, 1987 at the home of his sister and brother-in-law, with whom he had been staying in Bartow County for several months. At approximately 11:00 p.m. on July 30, the Burger King in Calhoun in adjoining Gordon County was robbed by a man driving a Blazer, wearing a cowboy hat and rebel flag bandanna, and accompanied by a young woman.

At about 12:30 a.m. on July 31, the young woman who owned the Blazer, dated defendant, and had been with him during the robbery, called the Gordon County sheriff’s office, gave them a false last name and a description of the Blazer and a partial tag number. She said she had seen the Blazer leaving Cartersville.

The police located and questioned her at about 2:10 a.m. and were given direct confirmation that defendant had participated in the robbery. They placed her in their patrol car and went directly across the street to the trailer of Cathy and Stanley Boston, where the young woman told them defendant was.

The officers knocked on the front door and received no answer. They knocked at the back door and Cathy answered, opening the door. Officer Garmon testified that he told her they needed to speak with defendant, she said “ok” and allowed them in. Cathy Boston testified that she opened the door but that the police just walked in without her permission.

Upon entering, one of the officers spoke to Stanley Boston, whom he knew, and told him what had happened. He said he owned a pistol. He took them to the kitchen where he pointed to the top of the refrigerator, told them his pistol was there and said there was money there but it was not his. The officer could see part of the gun and some money. Stanley got the gun and handed it to the officer, who then seized the money. The officers obtained Stanley’s signature on a consent to search form. Cathy turned over money from another room. She told them they could search. The officers seized the cowboy hat and rebel flag bandanna. Defendant was asleep on the couch when the officers entered. He was arrested during the seizures.

Defendant’s written motion to suppress alleged that the officers entered defendant’s home without a warrant and without consent. At the hearing, he further argued that the arrest was illegal, making the entire search the “fruit of the poisonous tree” and illegal. But áfter the witnesses testified, defendant abandoned his argument concerning the validity of the consent to search, leaving only the validity of the arrest and his poisonous tree basis for our consideration.

Decided September 6, 1988.

J. Lane Bearden, for appellant.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

The trial court apparently believed the testimony of the officer that Cathy Boston voluntarily admitted them to the trailer. On appeal the court’s ruling on disputed facts and credibility must be accepted unless clearly erroneous. Hill v. State, 183 Ga. App. 654, 656 (2) (360 SE2d 4) (1987). This finding was not.

All of the objected-to evidence was either turned over to police by the Bostons, constituting a search by private individuals which is not prohibited by the Fourth Amendment even if unreasonable, Morton v. State, 181 Ga. App. 781, 783 (2) (353 SE2d 852) (1987), or seized from the trailer after the consent to search was signed, precluding the need for a search warrant or probable cause. Dean v. State, 250 Ga. 77, 80 (2 a) (295 SE2d 306) (1982) and Crawford v. State, 181 Ga. App. 454 (1) (352 SE2d 635) (1987). Thus the arrest was not infected by an invalid search.

Absent this impediment, the arrest without a warrant under the circumstances here still was not violative of the Fourth Amendment, being founded on probable cause and the entry to the trailer having been consensual. Carroll v. United States, 267 U. S. 132, 162 (45 SC 280, 69 LE 543) (1925), cited and applied in Clark v. State, 180 Ga. App. 280, 283 (3) (348 SE2d 916) (1986).

Judgment affirmed.

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


author: Carley, Judge.

text:
    76636.
    BRINSON v. THE STATE.
    (372 SE2d 487)
   Carley, Judge.

Appellant was tried before a jury and found guilty of selling cocaine. He appeals from the judgment of conviction and sentence entered on the jury’s verdict.

1. Appellant sold cocaine to an undercover officer. According to the testimony of this officer, he had been introduced to appellant by two informants. Appellant enumerates as error the trial court’s failure to conduct a hearing to determine the status of the two informants. See Thornton v. State, 238 Ga. 160, 162 (2) (231 SE2d 729) (1977) and 239 Ga. 693 (238 SE2d 376) (1977).

The record shows, however, that when the question of the identity of the informants was raised for the first time during the trial, the trial court did conduct an extensive hearing outside the presence of the jury. During the course of this hearing, the trial court addressed the issues of the status of the informants as mere tipsters, of the extent of the undercover agent’s knowledge of their identities and addresses, and of whether appellant should have been given the opportunity to see documents concerning the existence of these informants in response to his pre-trial Brady motion. During the hearing, both the trial court and appellant questioned the undercover officer concerning the role played by the informants in connection with the purchase of the cocaine from appellant. The transcript of this hearing shows that the procedural and substantive requirements of Thornton v. State, supra, were satisfied. “Where a person merely takes an undercover agent to a location and identifies or introduces the agent to a seller of drugs, with all arrangements for the sale being wholly made by the agent, even if the sale is witnessed by the introducer, such introducer is nothing more than an informer and acts as a tipster only. . . . [Cits.]. . . . Under the facts before the trial court, there were no discovery rights in the tipster mandated by Brady v. Maryland, [cit.] and thus the disclosure rested within the sound discretion of the trial court. [Cit.] We discern no abuse of that discretion in [this] case.” Gilmore v. State, 168 Ga. App. 76, 77 (308 SE2d 232) (1983). See also Carver v. State, 175 Ga. App. 599, 600 (1) (333 SE2d 697) (1985).

Decided September 6, 1988.

Keith M. Morris, for appellant.

Glenn Thomas, Jr., District Attorney, Stephen D. Kelley, Assistant District Attorney, for appellee.

2. It necessarily follows from our holding in Division 1 that the State’s alleged failure to disclose the identities of the two informants was not a valid basis for a motion to strike the undercover officer’s testimony. Accordingly, appellant’s enumeration of the denial of such a motion as erroneous is without merit.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


author: Sognier, Judge. Deen, Presiding Judge,

text:
    76660.
    MONEY et al. v. DANIEL.
    (372 SE2d 305)
   Sognier, Judge.

Brenda Sue Daniel brought an action against Donald Wayne Money and Transus, Inc. to recover damages arising out of a collision between an automobile operated by Daniel and a tractor-trailer truck owned by Transus and driven by Money. Money and Transus answered and counterclaimed for damages to the truck. A jury trial resulted in a verdict for Daniel, and Money and Transus appeal from the judgment rendered thereon.

The record reveals that the accident occurred in the city of Columbus as appellee turned right onto the street from a private parking lot driveway and proceeded south. Money was driving his employer’s truck north on the street. The collision was almost head-on near the imaginary centerline of the street. The testimony was conflicting as to which vehicle or vehicles may have been over the center-line, and as to the speed of the truck.

1. Appellants contend the trial court erred by failing to give their requested charges as to certain portions of the Uniform Rules of the Road, specifically OCGA §§ 40-6-73 and 40-6-144.

OCGA § 40-6-73 provides that “[t]he driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right-of-way to all vehicles approaching on the roadway to be entered or crossed.” OCGA § 40-6-144 provides that “[t]he driver of a vehicle emerging from an alley, building, private road, or driveway within a business or residential district shall stop such vehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extending across such alley, building entrance, road, or driveway or, in the event there is no sidewalk area, shall stop at the point nearest the street to be entered where the driver has a view of approaching traffic thereon.”

It is undisputed that at the time of the collision appellee had just entered the roadway from the driveway of her employer’s parking lot. However, there is no testimony in the record indicating whether appellee stopped before entering the roadway. Appellee testified that she had no memory of the accident or the moments before the accident. Money testified at trial that he saw appellee in the driveway before her vehicle entered the roadway. No other evidence was adduced by either party on this point. We need not decide whether, as appellee argues, Money’s prior testimony was contradictory on this point because even assuming, without deciding, that it was, neither version indicates whether appellee stopped before entering the roadway. The requested charges were, thus, not adjusted to the facts of the case. “A requested charge need be given only when it embraces a correct and complete principle of law and is pertinent and adjusted to the facts of the case. [Cit.] ” (Emphasis supplied.) Sapp v. Johnson, 184 Ga. App. 603, 605 (1) (362 SE2d 82) (1987).

Further, the question of whether appellee stopped her vehicle before entering the street was not related by any evidence to the issue in the case, which was liability for the collision. Even if appellee had failed to stop before entering the roadway, the record contains no evidence or argument that any such failure to stop was related to the accident. Accordingly, the scope of the jury’s inquiry did not encompass the subject matter of the statutes in the requested charges, and the failure to give the charges was not error. See Atkinson v. Allstate Ins. Co., 182 Ga. App. 50 (2) (354 SE2d 866) (1987).

Decided September 6, 1988.

Charles E. Walker, for appellants.

William B. Hardegree, for appellee.

2. Although appellants enumerate as error the trial court’s instruction to the jury that neither party had an absolute right-of-way, the record shows that appellants did not object to the charge. Rather, when asked by the trial court if he had any objections to the charge as given, appellants’ attorney objected only to the failure to give their requested charges discussed in Division 1. By failing to object to the charge as given, appellants waived appellate consideration of this issue. AAA Van Svcs. v. Willis, 180 Ga. App. 18, 19 (3) (348 SE2d 475) (1986).

3. Although appellants contend in their final enumeration of error the trial court erred by excluding certain testimony from the investigating police officer as to the cause of the collision, even assuming this testimony was admissible, see Massee v. State Farm &c. Ins. Co., 128 Ga. App. 439, 443-444 (3) (197 SE2d 459) (1973), appellants failed to proffer any evidence as to what the excluded testimony would have been. “ ‘On direct examination, to afford a basis for the assertion of error, it must appear that a pertinent question was asked, that the court ruled out an answer, that a statement was made to the court at the time showing what the answer would be, and that such testimony was material and would have benefited the complaining party.’ [Cit.]” Zohbe v. First Nat. Bank, 162 Ga. App. 604, 605 (2) (292 SE2d 444) (1982). As there is nothing in the record to indicate an offer of proof on the excluded answer, there is nothing in this regard for us to review on appeal. Id.

Judgment affirmed.

Carley, J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

While concurring fully in Divisions 2 and 3 and in the judgment, I cannot agree with all that is said in Division 1 on a party failing to stop before entering the roadway.


text:
    76666.
    DESPRINT SERVICES, INC. v. DeKALB COUNTY.
    (372 SE2d 488)
   Carley, Judge.

Appellant-plaintiff Desprint Services, Inc., is the lessee of property which was flooded as the result of a burst water main. Some weeks prior to the flooding, the water main had been equipped with a new “butterfly” valve in connection with a road construction project undertaken by appellee-defendant DeKalb County. Apparently, the water main had burst at or near the location of the recently installed “butterfly” valve. As the result of the flooding of its property, appellant filed a multi-count complaint against appellee, one count of which alleged an inverse condemnation claim. According to the allegations of this count, the flooding had “resulted from the public works” of appellee and thus constituted a compensable damaging of appellant’s private property.

After an answer had been filed and a period of discovery had elapsed, appellee moved for summary judgment as to that count of appellant’s complaint which alleged an inverse condemnation claim. The trial court granted appellee’s motion and appellant appeals from this grant of partial summary judgment in favor of appellee.

1. “A county is not liable to suit for any cause of action unless made so by statute.” OCGA § 36-1-4. The authority by which counties are rendered amenable to suit for inverse condemnation claims is found in Art. I, Sec. Ill, Par. I of the Ga. Const, of 1983: “[P]rivate property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.” “[T]he constitutional prohibition against the taking of property without just compensation falls within [the] exception [to county immunity from suit]. [Cits.]” Duffield v. DeKalb County, 242 Ga. 432, 435 (2) (249 SE2d 235) (1978). It is undisputed that appellant’s property was damaged and that the damage was the result of the bursting of appellee’s water main. It is also undisputed that appellant has not been paid any compensation by appellee for that damage. The only issue is, therefore, whether appellant’s property was damaged for a “public purpose” within the meaning of the applicable constitutional provision. If it was, then appellant has a viable inverse condemnation claim against appellee. If it was not, then OCGA § 36-1-4 precludes appellant’s assertion of an inverse condemnation claim against appellee.

It is clear that, during the actual construction phase of a public works project, such damage to private property as may result from the ongoing construction activity constitutes damage which is done for a “public purpose.” The actual construction of a public works project is certainly being undertaken for a “public purpose” and the Constitution of this state thus mandates that just and adequate compensation be paid for any damage to private property which occurs during and as the result of such construction activity. “The defendants, in excavating the ditch adjacent to the plaintiffs’ property for the purpose of laying therein what may properly be termed an appurtenance of its fire protection system, [were] certainly engaged in work with a public purpose. When the plaintiffs’ building collapsed as a result of this work, it can not seriously be contended that the building was damaged by reason of anything other than construction of improvements made for the use of the public, or that the damage was any less because the defendants had not intended to take or damage the building for the purpose of laying the cables and wires for the fire signal station.” (Emphasis supplied.) City of Atlanta v. Kenny, 83 Ga. App. 823, 828 (1) (64 SE2d 912) (1951). See also Pair Dev. Co. v. City of Atlanta, 144 Ga. App. 239 (240 SE2d 897) (1977) (damage to private property occurred during and as the result of activity undertaken in connection with the repair of a sewer line); Richmond County v. Williams, 109 Ga. App. 670 (137 SE2d 343) (1964) (damage to private property occurred during and as the result of the use of pile driving machinery in a road construction project).

In the present case, however, the damage to appellant’s property did not occur during and as the result of any ongoing activity undertaken in connection with the construction of that public works project of which the water main was an element. It is undisputed that the installation of the new “butterfly” valve had taken place several weeks prior to the flood of appellant’s premises. It is also undisputed that the water main had burst spontaneously and not as the result of any active ongoing construction work on the road project. Thus, appellant’s property was damaged solely as the result of appellee’s post-construction operation of the water main itself and was not damaged for the “public purpose” of actually constructing any public works project. See Johnson v. City of Atlanta, 117 Ga. App. 586 (161 SE2d 399) (1968).

2. This does not, however, necessarily mean that appellant has no viable inverse condemnation claim against appellee. One whose private property is damaged by the post-construction operation of a county public works project may, under certain circumstances, recover under an inverse condemnation theory. It has been “recognized in a number of cases that where a county causes a nuisance to exist which amounts to a taking of property of one of its citizens for public purposes, the county is liable. [Cits.]” (Emphasis supplied.) Miree v. United States, 242 Ga. 126, 134 (2) (249 SE2d 573) (1978). The operation and maintenance of a public works project is certainly being undertaken for a “public purpose” and the constitution of this state thus mandates that just and adequate compensation be paid when a county’s operation and maintenance of such a project results in the creation of a nuisance which damages private property. “[T]he Constitution provides for a waiver of sovereign immunity where a county creates a nuisance which amounts to an inverse condemnation.” Duffield v. DeKalb County, supra at 433 (1). The issue in this case thus becomes whether the damage to appellant’s property was the result of appellee’s operation and maintenance of the public works project in such a manner as to constitute a nuisance.

The evidence of record is undisputed that the bursting of the water main and the flooding of appellant’s property was a single isolated occurrence. This evidence shows that appellant’s property was not damaged as the result of appellee’s creation and maintenance of a nuisance. “This is true though damage to the property ... is of a ‘more or less permanent nature.’ . . . ‘The whole idea of nuisance is that of either a continuous or regularly repetitious act or condition which causes the hurt, inconvenience or injury ... A single isolated occurrence or act, which if regularly repeated would constitute a nuisance, is not a nuisance until it is regularly repeated.’ . . . ‘[T]he injury complained of here is more in the nature of a tort or a trespass inflicting in one act a direct injury and damage (even though in effect one of more or less lasting duration) to [appellant’s] realty as distinguished from the maintenance of a nuisance where the injury complained of is the result of a continuous or recurrent act or condition and is of an indirect character.’ [Cit.]” Johnson v. City of Atlanta, supra at 588-589. Thus, appellant’s property was damaged by a single malfunction in the operation of the public works project and was not damaged by a nuisance arising from a public project created and maintained for a “public purpose.”

3. Thus, we must now decide whether appellant has a viable inverse condemnation claim based upon appellee’s post-construction operation of a public project in such a manner as to cause damage to private property, but not so as to create a nuisance.

To hold that a viable inverse condemnation claim exists under such circumstances would be to impose upon a county the status of an insurer of the operation of its public works project. Regardless of how far removed the occurrence of the damage may be from the actual construction of the public works project, a single malfunction in the operation of the project would require payment by the county of compensation to the private property owner. However, the applicable constitutional provision clearly requires only that compensation be paid by a county for damage done to private property for a “public purpose.” As a matter of law, the post-construction non-nuisance damage done to private property by a single malfunction in the operation of a public works project is not damage which has been done for a “public purpose.” See Johnson v. City of Atlanta, supra. As long as a county operates and maintains its public works project so as not to result in the creation of a nuisance, OCGA § 36-1-4 renders it immune from suit for damage resulting from the operation and maintenance of the project. It follows that the trial court correctly granted summary judgment in favor of appellee as to appellant’s inverse condemnation claim.

Decided September 6, 1988.

James M. Lord, Stephen G. Lowe, Robert L. Crewdson, for appellants.

Albert Sidney Johnson, Karen K. Karabinos, Michael J. Bowers, Attorney General, Beverly B. Martin, Assistant Attorney General, for appellee.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


text:
    76702.
    METRO COMPLETE SERVICES, INC. v. LIBERTY MUTUAL INSURANCE COMPANY.
    (372 SE2d 491)
   Carley, Judge.

Appellee-plaintiff filed suit, seeking to recover premiums allegedly due on a workers’ compensation policy which it had issued to appellant-defendant. Appellant filed an answer, asserting various defenses. Appellant also filed a counterclaim, seeking a recovery based upon appellee’s denial that it afforded general liability coverage to appellant. In its counterclaim, appellant sought actual damages and punitive damages, as well as attorney’s fees and expenses of litigation. Following a period of discovery, appellee moved for summary judgment on appellant’s counterclaim. A hearing was held and the trial court granted summary judgment in favor of appellee with regard to its liability in negligence. However, the trial court denied appellee’s motion for summary judgment with regard to its liability in contract. Appellant appeals from the trial court’s order granting partial summary judgment in favor of appellee.

1. Appellant urges that the trial court erred in granting partial summary judgment in favor of appellee because genuine issues of material fact remain as to appellee’s liability in negligence.

“ ‘(W)here one undertakes to procure insurance for another and is guilty of . . . negligence in his undertaking, he is liable for loss or damage to the limit of the agreed policy. [Cits.]’ [Cits.]” Georgia Farm &c. Ins. Co. v. Arnold, 175 Ga. App. 850, 851 (1) (334 SE2d 733) (1985). Where, however, the facts of the case would establish the existence of a contractual relationship rather than the negligent performance of a fiduciary duty, it is not error for the trial court to grant summary judgment for defendant as to the issue of his negligence. See McCullohs Svc. Station v. Wilkes, 183 Ga. App. 687, 689 (1) (359 SE2d 745) (1987); Ethridge v. Assoc. Mutuals, 160 Ga. App. 687 (288 SE2d 58) (1981).

The record in this case contains the conflicting affidavits of appellee’s agent and of appellant’s president. Appellee’s \agent denied ever having discussed general liability coverage with appellant’s president at any time prior to appellee’s issuance of a binder for workers’ compensation coverage on May 1, 1984. Appellant’s president, on the other hand, stated that he and appellee’s agent had discussed workers’ compensation coverage and general liability coverage during the last week in April of 1984. Appellant’s president also stated that on or about April 30, 1984, he was informed by appellee’s agent that both the “workers’ compensation and general liability insurance had been approved,” and that he subsequently paid the “requested initial premium” for the coverages “approved” by appellee.

Under this conflicting evidence, if the trior of fact accepted appellant’s version of the events, a finding would be authorized that appellee had made an oral binder as to general liability coverage. If, on the other hand, the trier of fact accepted appellee’s version of the events, a finding would be authorized that general liability coverage had not been discussed prior to May of 1984 and that no binder had ever been given for that coverage. Thus, either general liability coverage was discussed and a binder for that coverage was issued or that coverage was never discussed and no binder was ever issued. There is no evidence in the record to authorize a finding that appellee undertook to secure general liability insurance for appellant but negligently failed to do so. Compare Ray v. Ga. Farm &c. Ins. Co., 176 Ga. App. 776 (337 SE2d 779) (1985), wherein there was evidence which would support either a contract claim or a negligence claim against the insurer. In the instant case, there is no evidence that appellee agreed that it would undertake to provide general liability coverage but then failed to provide such coverage. The fact that appellee denied the existence of coverage shows the denial of the existence of a contract, not the viability of a claim against it for the negligent failure to procure coverage.

“In deciding a motion for summary judgment, the evidence is construed most favorably to the party opposing the motion, who is to be given the benefit of all reasonable doubts and all reasonable inferences. [Cit.]” Blount v. Seckinger Realty Co., 167 Ga. App. 778, 779 (1) (307 SE2d 683) (1983). In construing the evidence most favorably for appellant, the trial court correctly found that a genuine issue of material fact remained as to the existence of an oral binder for both workers’ compensation coverage and general liability coverage on or before April 30, 1984. The trial court also correctly found that no such genuine issue of material fact remained with regard to appellee’s negligence in undertaking to secure general liability coverage. Accordingly, the trial court correctly granted appellee’s motion for summary judgment as to appellant’s negligence claim.

Decided September 6, 1988.

John W. Spears, Jr., for appellant.

Keenan G. Loomis, Lowell S. Fine, Mark E. Bergeson, G. Michael Banick, for appellee.

2. It necessarily follows that the trial court also correctly granted appellee’s motion for summary judgment as to the recoverability of punitive damages by appellant. Such damages are not authorized in a case which arises out of contract. OCGA § 13-6-10.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


text:
    76707.
    CITY OF COLLEGE PARK et al. v. GEORGIA POWER COMPANY et al.
    (372 SE2d 493)
   Beasley, Judge.

The City of College Park and the mayor appeal the trial court dismissing their appeals for failure to timely file the transcript. The prior history of this case is chronicled in Smith v. Ga. Power Co., 183 Ga. App. 295 (358 SE2d 879) (1987), in which we reversed and remanded for “determination of whether the delay in filing was unreasonable, and if so, whether the unreasonable delay was inexcusable.”

The enumeration of error presents as the sole question whether the court erred as a matter of law because it failed to determine whether appellants’ delay in filing the transcript was unreasonable and whether the delay was inexcusable. They argue that the court did not rule on its motion for an oral hearing and should not have entered an order after remand without permitting the parties to submit evidence other than affidavits; that the court failed to issue findings as to whether the delay was unreasonable and inexcusable; that the court failed to exercise its discretion in making its determination; that the court erred because the delay was not unreasonable and even if it were it was not inexcusable. Thus there are three procedural and one substantial contentions, but only those related to the enumeration will be considered.

“An enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel to include issues not made in the enumeration.” Echols v. State, 149 Ga. App. 620, 625 (3) (255 SE2d 92) (1979). Accord Irvin v. Askew, 241 Ga. 565, 566 (2) (246 SE2d 682) (1978); Frink v. State, 177 Ga. App. 604, 608 (5) (340 SE2d 631) (1986); Key v. State, 147 Ga. App. 800, 801 (2) (250 SE2d 527) (1978); Leniston v. Bonfiglio, 138 Ga. App. 151, 153 (2) (226 SE2d 1) (1976). A thorough discussion of what this court will consider under one enumeration of error is found in McDonald v. McDonald, 156 Ga. App. 565 (1) (275 SE2d 142) (1980) [2 judges only, but cited approvingly in over 20 cases]. One cannot expand the scope of review or supply additional issues “through a process of switching, shifting, and ‘mending your hold.’ ” Redwing Carriers v. Knight, 143 Ga. App. 668, 674 (9) (a) (239 SE2d 686) (1977). Tested by the maxims of the cited cases, we consider only the error asserted by the enumeration and not those sought to be raised by argument to this court.

The trial court in its order found that the delay in perfecting the appeal was “dilatory and unreasonable” and “inexcusable in that no effort was made to prepare the transcript of the hearing for over four and one-half months when plaintiffs knew that such transcript was essential to perfect its appeal.” The court ordered both appeals dismissed “in the exercise of its sound discretion.” This was an unqualified statement by the trial court that it was acting as required by law, and the facts upon which this conclusion was based were set out.

Moreover, there is nothing to establish that, as a matter of law, there was an abuse of discretion. The two notices of appeal were filed on November 20, 1985, and thirty days elapsed without the filing of any transcript or of any requests for extension of the time in which to file them. Not until April 9 and 11, 1986, were such requests filed. On June 20, when the first hearing on the motion to dismiss the appeals was held, the transcripts had still not been filed.

As we stated in the previous opinion, under Young v. Climatrol Southeast Distrib. Corp., 237 Ga. 53 (226 SE2d 737) (1976), in consideration of a motion to dismiss for untimely filing a trial court must find the delay to be both unreasonable and inexcusable. In making that determination, the trial court exercises a legal discretion which is subject to appellate scrutiny only for abuse. Dubois v. Dubois, 240 Ga. 314 (1) (240 SE2d 706) (1977). Failure to obtain the transcript within the prescribed time or to timely move for an extension may require dismissal of the appeal. See Long v. City of Midway, 251 Ga. 364 (306 SE2d 639) (1983); In re G. W. H., 168 Ga. App. 845, 846 (310 SE2d 573) (1983).

In Thomas v. Satterfield, 169 Ga. App. 432 (313 SE2d 134) (1984), this court considered a factual situation similar to the present one. A notice of appeal from the judgment was filed on March 2, 1983, and no transcript nor request for extension was filed within thirty days. Appellant’s first request for extension was not filed until May 9 and the appeal was dismissed on June 22. We held: “[T]he fact that the initial delay in the preparation of the transcript may not have been the fault of the [appellant] does not excuse the filing delay, in the absence of a proper request by the [appellant] for an extension of time.” Id. at 432. The facts authorized the trial court’s finding that the delay was unreasonable and inexcusable and caused by appellant. This, in turn, authorized dismissal of the appeal. Accord Dampier v. First Bank &c. Co., 153 Ga. App. 756, 757 (266 SE2d 539) (1980). See Middleton v. Continental Dev. Corp., 153 Ga. App. 144 (264 SE2d 689) (1980). The Thomas, In re G. W. H. and Dampier cases are controlling here.

Decided September 6, 1988.

George E. Glaze, Steven M. Fincher, James E. Ervin, for appellants.

Robert H. Forry, Arthur H. Domby, Bruce L. Bromberg, John R. Barmeyer, Charles N. Pursley, Jr., Michael J. Bowers, Attorney General, Victoria H. Tobin, Michael J. Henry, Assistant Attorneys General, for appellees.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    76724.
    BEST v. DUBLIN EYE ASSOCIATES, P. C. et al.
    (372 SE2d 495)
   Banke, Presiding Judge.

The appellant sued the appellees to recover for personal injuries which she allegedly sustained when she slipped and fell on a rubber mat while exiting medical offices owned and occupied by the appellees. She appeals the grant of the appellees’ motion for summary judgment.

The appellant fell while traversing an outside walkway which sloped downward from the medical building to the parking lot. The walkway was at least partially covered by a plastic or rubber mat containing small protruding tips or “spikes,” which allegedly were partially worn down. It was a rainy day, so both the mat and the walkway were wet. The appellant had ascended the walkway without incident upon entering the building but testified that when she stepped on the mat on her way back to the parking lot, her feet went out from under her, causing her to fall on her back and buttocks. The trial court granted summary judgment to the appellees based in part upon the appellant’s inability to specify whether her feet had slipped on the mat or whether the mat had slipped on the walk, and based in part upon its conclusion that her knowledge of the danger presented by the mat and the walkway was at least equal to that of the appellees. Held:

The burden of proof on motion for summary judgment is always on the movant, even with respect to issues on which the opposing party would have the burden of proof during the trial of the case. See Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429) (1973); Henderson v. Atlanta Transit Sys., 133 Ga. App. 354, 356 (210 SE2d 845) (1974). In ruling on the motion, all evidentiary conflicts and doubts are to be resolved against the movant, and any vagueness or uncertainty in the opposing party’s testimony will be construed in his or her favor unless that testimony is contradictory and he or she is unable to provide a reasonable explanation for the contradiction. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). See also Burnette Ford v. Hayes, 227 Ga. 551 (181 SE2d 866) (1971).

Although the appellant in the present case was unable to specify whether her feet had slipped on the mat or whether the mat had slipped on the walkway, her testimony was not contradictory in this regard. She consistently maintained that she had fallen because her feet, for whatever reason, suddenly went out from under her when she stepped on the mat on her way back down to the parking lot; and regardless of whether she slipped on the mat or slipped on the walkway, her account of the accident is fully consistent with her allegation that she fell because the mat was defective. Also, since the appellees were responsible for the placement and maintenance of the mat, the evidence of record supports (or at least does not negate) a finding that they had superior actual or constructive knowledge of the existence of the alleged defect and the danger presented thereby.

Such cases as Bowman v. Richardson, 176 Ga. App. 864 (338 SE2d 297) (1985); Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44 (332 SE2d 304) (1985), and Brownlow v. Six Flags Over Ga., 172 Ga. App. 242 (322 SE2d 548) (1984), are distinguishable from the case before us and do not support the grant of the appellees’ motion for summary judgment. The plaintiffs in those cases, unlike the appellant here, had no reason to believe that the surfaces on which they slipped would not be slippery when wet. The appellant in the present case, on the other hand, had every reason to assume that the mat would at least be less slippery than the pavement itself since that, presumably, is why it had been placed there. Stated differently, the alleged danger in the present case may be considered latent, whereas the danger in the cited cases was patent.

The appellees’ reliance on McGauley v. Piggly-Wiggly Southern, 170 Ga. App. 851 (319 SE2d 15) (1984), is similarly misplaced. There, the plaintiff slipped on or near a mat located just inside the door to the defendant’s store; however, she was unable to specify which surface she had slipped on, and she was also unable to state whether the surface in question was wet or dry. Accord Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980) (where the plaintiff was completely unable to specify what had caused her to fall). Although the appellant in the case before us answered, “I don’t know,” when asked whether the mat alone would have caused her to fall had it not been wet, she never waivered from her testimony that it was the mat which had precipitated her fall. Consequently, we hold that the evidence of record does not establish the appellees’ entitlement to judgment as a matter of law.

Decided September 6, 1988.

M. 0. Strickland, for appellant.

Wilson R. Smith, for appellees.

Judgment reversed.

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


text:
    76732.
    CRUMBLEY et al. v. WYANT et al.
    (372 SE2d 497)
   Banke, Presiding Judge.

Appellant Crumbley brought this action on his own behalf and as next friend of his minor daughter to recover for the death of Mrs. Crumbley due to alleged medical malpractice on the part of the appellees, John R. Wyant, M.D., and Cobb County Kennestone Hospital Authority. This appeal follows a jury verdict in the appellees’ favor.

Mrs. Crumbley gave birth to the appellant daughter at Kennestone Hospital while under the care of Dr. Wyant. Approximately 13 hours later, while still a patient at the hospital, she asked to take a bath. A nursing assistant filled the bathtub with water and left her alone with instructions to use the nurse’s call button if she needed assistance. The nursing assistant returned approximately 20 minutes later to find Mrs. Crumbley unconscious and kneeling over the side of the bathtub with her face at least partially in the water. She was resusitated but had suffered irreversible brain damage and died several days later upon termination of life support systems. At trial, the appellants offered expert opinion testimony to the effect that Mrs. Crumbley had died of asphyxiation after collapsing from a seizure most likely caused by a previously undiagnosed and untreated condition known as pre-eclampsia/eclampsia. The appellees, on the other hand, offered medical testimony to the effect that Mrs. Crumbley had died from a heart attack.

After the jury returned its verdict in favor of the appellees, the trial court granted the appellants a new trial against Kennestone based on a perceived error in the jury instruction concerning the duty of care the hospital had owed to Mrs. Crumbley. The appellants’ motion for new trial was otherwise denied. This court subsequently granted leave to Kennestone to bring an interlocutory appeal and reversed the trial court’s ruling with respect to the jury instruction. Cobb County &c. Hosp. Auth. v. Crumbley, 179 Ga. App. 896 (348 SE2d 49) (1986).

Upon the return of the case to the lower court, the appellants filed a notice of appeal from the denial of the remaining grounds of their motion for new trial. That appeal was dismissed as untimely by the trial court upon motion by the appellees; however, we reversed that ruling in Crumbley v. Wyant, 183 Ga. App. 802 (360 SE2d 276) (1987), with the result that the Crumbleys’ appeal is now before us for review on the merits. Held:

1. The appellants assert that the trial court erred in allowing the appellees to cross-examine each other’s expert witnesses. “The clear intent of [OCGA § 24-9-64] is to recognize and allow the right of cross-examination for witnesses called by other parties, and we consider it quite proper for the trial court to regard such witnesses as witnesses ‘called against’ another party seeking cross-examination, unless the absence of any ‘distinct interest’ clearly appears.” Gunnells v. Cotton States Mut. Ins. Co., 117 Ga. App. 123, 126 (159 SE2d 730) (1968). “As a general proposition, ‘(t)his court will not interfere with the action of the trial judge in allowing ‘double’ or ‘multiple’ cross-examination of witnesses, . . . absent a showing of a manifest abuse of discretion.’ [Cit.]” Kilpatrick v. Foster, 185 Ga. App. 453, 458 (364 SE2d 588) (1988).

The complaint sought to hold the two appellees jointly and severally liable based on Dr. Wyant’s alleged failure to diagnose and treat the condition which had caused the decedent’s death, combined with the hospital’s alleged failure to report certain laboratory findings to Dr. Wyant and to provide proper nursing care to the decedent. However, the appellants nevertheless contend that the appellees had no distinct or adverse interests with respect to the defense of the case, because both sought to prove that the decedent died of a cause other than pre-eclampsia/eclampsia. We cannot agree that the appellees’ common reliance on such evidence eliminated all adversity of interest between them, as the jury could certainly have determined that the decedent’s death could have been prevented by the provision of more intensive nursing care to her by the hospital, regardless of the immediate cause of her loss of consciousness. Consequently, we find this enumeration of error to be without merit. See generally Lavender v. Wilkins, 237 Ga. 510 (4) (228 SE2d 888) (1976).

2. The appellants contend that the trial court erred in giving the following instructions concerning the burden of proof in a medical malpractice action: “[T]he law presumes that medical services were rendered in an ordinarily skillful manner, the burden is on the one receiving the services to show a want of due care, skill and diligence . . . [and] the proof required to overcome [the] presumption that the proper care, skill and diligence were possessed and used by the defendant is that given by physicians or surgeons as expert witnesses.” The appellants challenge this portion of the court’s charge primarily on equal protection grounds, asserting that it gives medical malpractice defendants the benefit of a presumption n ot available to defendants in other negligence actions and thereby imposes a heavier burden of proof on plaintiffs in medical malpractice actions. However, because the charge has been consistently approved by the Supreme Court as well as this court, we conclude that the trial court did not err in giving it for this or any of the other reasons asserted by the appellants. See Shea v. Phillips, 213 Ga. 269 (2) (98 SE2d 552) (1957); Hooper v. McCord, 115 Ga. App. 10 (153 SE2d 646) (1967); Overstreet v. Nickelsen, 170 Ga. App. 539 (4) (317 SE2d 583) (1984). See also Suggested Pattern Jury Instructions, Vol. I., Civil Cases, p. 316 (2d ed., 1984).

3. The appellants complain that the following jury instruction was not adjusted to the evidence: “The mere difference of views between physicians as to the techniques or as to medical judgment exercised is insufficient to support an action for malpractice where it is shown that the procedure preferred by each or the judgment exercised is an acceptable and customary method of treatment.” This contention is without merit. The expert witnesses clearly differed with respect to their diagnosis of Mrs. Crumbley’s illness and the cause of her death, with the result that they also differed in their assessment of the treatment which she should have received. See Hayes v. Brown, 108 Ga. App. 360, 366 (133 SE2d 102) (1963).

4. The appellants similarly contend that there was no evidentiary basis for the court’s charge that the appellees could not be held liable merely for an unfortunate result of medical treatment rendered in an ordinarily skillful manner. For the reasons stated in Division 3, supra, we find this enumeration of error also to be without merit.

5. Finally, the appellants contend that they were prejudiced by the trial court’s repetition of certain charges assertedly favorable to the appellees.

“[M]ere repetition of a principle of law, while unnecessary, will not work a reversal unless it appears from the charge as a whole that there was such undue emphasis as to result in an unfair statement of the law in relation to the [complaining party’s] rights. [Cits.] . . . [T]o determine whether the error is prejudicial so as to result in reversal, the whole charge must be examined. [Cits.]” Jackson v. Rodriquez, 173 Ga. App. 211, 213 (325 SE2d 857) (1984).

The jury charge in this case was quite lengthy and was prefaced with an admonition that if certain instructions were repeated, it was not for the purpose of emphasis but to explain more clearly the applicable principles of law. The jurors were further instructed that they were not to construe any part of the charge as a statement of opinion by the court. Our review of the charge as a whole convinces us that the jury was properly instructed as to the standard of care and burden of proof applicable in the case and that any repetition in the charge did not result in an . unfair statement of the law in relation to the appellants’ rights. Accordingly, we hold that this enumeration of error is also without merit.

Decided September 6, 1988.

Robert E. Shields, Michael A. Young, Laurel J. Lucey, for appellants.

Thomas J. Casurella, Robert H. Cleveland, for appellees.

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    76753.
    WALK SOFTLY, INC. v. HYZER et al.
    (372 SE2d 500)
   Deen, Presiding Judge.

This appeal is from the grant of summary judgment to appellees Peter C. and Bette J. Hyzer on appellant’s claim asserting a labor and materialmen’s lien arising from the construction of a home. The Hyzers purchased the property from Signature Homes on April 9, 1986. At the closing of the sale, Mike Shean on behalf of Mike Shean Signature Homes executed a builder’s affidavit stating that there were not then “any outstanding bills, either for services, labor or materials . . . placed upon said property within the last ninety-five days . . . ,” and that there was then “no person, firm, or corporation, which has a lien, or which is entitled to claim or enforce a lien against said property or the fixtures located thereon, for services performed, labor done, or materials used in the improvement of said property.” Shean also executed a seller’s affidavit averring that the property was “free and clear of every kind and description of liens. . . .” Both affidavits contain a proper jurat. On June 11, 1986, appellant Walk Softly, Inc., filed a lien on the property and subsequently sued Signature Homes and its officers, and the Hyzers as present owners of the property, seeking inter alia to foreclose on the lien. The Hyzers’ motion for summary judgment on that claim was granted on the ground that the lien was extinguished as to them by operation of OCGA § 44-14-361.2, from which this appeal is brought.

Appellant contends that the trial court erred in concluding as a matter of law that its lien was dissolved under OCGA § 44-14-361.2 by the mere execution and notarization of documents captioned “Builder’s Affidavit” and “Seller’s Affidavit,” when there was evidence that the affiant did not know what he was signing and was not sworn as required by the statute, and there were genuine issues of material fact as to whether the Hyzers were aware of these irregularities. It concedes that the affidavits appear on their faces to be valid, but urges under the authority of Chambers Lumber Co. v. Hagan, 118 Ga. App. 392 (1) (163 SE2d 847) (1968), that its evidence was sufficient in response to the motion for summary judgment to present an issue for jury determination as to whether they constituted legal affidavits. Our study of the amendment to the statute in question and later decisions of this court brings us to the conclusion that the Chambers holding in this respect is inconsistent and therefore must be overruled.

Present OCGA § 44-14-361.2 (a), properly construed, provides that a special lien, such as the materialmen’s lien involved here, “shall be dissolved if the owner, purchaser from owner, or lender providing construction or purchase money . . . shows that: (1) [t]he lien has been waived in writing by lien claimant; or (2) (A) [t]hey or any of them have obtained the sworn written statement of the contractor or person other than the owner at whose instance the labor, services, or materials were furnished, or the owner when'conveying title in a bona fide sale or loan transaction, that the agreed price or reasonable value of the labor, services, or materials have been paid or waived in writing by the lien claimant; and (B) [w]hen the sworn written statement was obtained or given as a part of a transaction; (i) [ijnvolving a conveyance of title in a bona fide sale; (ii) [ijnvolving a loan in which the real estate is to secure repayment of the loan; or (iii) [wjhere final disbursement of the contract price is made by the owner to the contractor [and] there was not of record, at the time of the settlement of the transaction!,] a valid preliminary notice or claim of lien which had not been previously cancelled, dissolved, or expired.” Ga. L. 1983, p. 1450, § 1; Ga. L. 1984, p. 22, § 44 (Indention omitted.)

Prior Code Ann. § 67-2001 (2) provided for the lien to attach to the property unless its owner could show that the lien had been waived in writing or “produce the sworn statement of the contractor, or other person, at whose instance the work was done or material was furnished . . . that the agreed price or reasonable value thereof has been paid. . . .” (Ga. L. 1897, p. 30; 1899, p. 33; 1953, pp. 582, 583; 1956, pp. 185, 187; 1956, pp. 562, 565.) The trial judge in the instant case expressly determined, having heard oral argument and considered all the evidence before it, “that a notarized affidavit which is valid on its face fulfills the requirements of ‘sworn written statement’ as described in OCGA § 44-14-361.2 (A) (2) (B) . . .” The change in approach and language in the two statutes supports this conclusion, that it is the written document rather than the intentions or acts of the affiant in executing it, that operates to extinguish the lien. More recent decisions augment this construction.

In Jackson’s Atlanta &c. Co. v. Industrial Tractor &c. Co., 139 Ga. App. 422 (228 SE2d 324) (1976) (cert. den., 139 Ga. App. 883), which was decided under the former statute, there was uncontradicted evidence that the sworn statement of the contractor was signed by its president and by a notary public, but that the notary public did not administer an oath to the president at any time contemporaneously with his execution of the writing. Nevertheless, this court held that “[i]n the absence of any evidence indicating that the owner was aware of the irregularity, or allegations and proof of fraud and/or collusion, the owner is not required to make an independent investigation to determine that the proper procedures were followed in the execution of the affidavit. ‘When one of two innocent persons must suffer by the act of a third person, he who put it in the power of the third person to inflict the injury shall bear the loss.’ [OCGA § 23-1-14].” Id. at 422-423. (Indention omitted.) In this case there was no evidence indicating that the Hyzers knew that Shean was not administered an oath, or that any of the procedures which took place at the closing rendered the affidavits invalid for their intended purpose.

Subsequently, in Lowe’s of Ga. v. Merwin, 156 Ga. App. 876 (275 SE2d 812) (1981), the contractor’s affidavit was alleged to declare falsely that all liens had been paid, but this court held that in view of the contractor’s compliance with the requisites of former Code Ann. § 67-2001 (2), “it was not incumbent upon [the defendant owner] to produce, in addition to the contractor’s sworn affidavit, evidence that he (the owner) made full payment to the contractor and that the contractor in turn properly disbursed payment to all valid claims of materialman.” Id. at 876-877. In reaching this conclusion the court recognized “that the possibility that a contractor’s affidavit may be false works a hardship against one in plaintiff’s position, but to hold otherwise would equally effect a hardship against [the owner]. . . .” Id. at 876.

Dixie Concrete Svcs. v. Life Ins. Co. of Ga., 174 Ga. App. 866 (331 SE2d 889) (1985), considered the question of whether the language in a contractor’s affidavit sufficiently complied with the provisions of OCGA § 44-14-361.2, and determined: “ ‘(I)nasmuch as our lien laws and procedures are in derogation of the common law, they must be construed strictly against the creditor and in favor of the debtor. [Cit.]’ [Cits.] Construing OCGA § 44-14-361.2 (a) (2) (A) in favor of [the owners], we find the general contractor’s affidavit in substantial if not complete compliance with the statute and affirm the trial court’s grant of summary judgment to appellees.”

Decided September 6, 1988.

Carl A. Crowley III, for appellant.

Harmon W. Caldwell, Jr., Wade H. Watson III, for appellees.

It can be seen that these later cases weighed the equities of the situation in favor of the good faith purchaser over the lien holder. The issue is not whether the purchaser observed the execution of the affidavit alleged to be irregular, but whether the purchaser was entitled to rely on its validity. The record before us here shows that the documents executed at the closing contained “[a] signed statement of facts, purporting to be the statement of the signer, followed by the certificate of an officer, authorized to administer oaths that it was sworn to and subscribed before him, [which] is a lawful affidavit. [Cits.]” Phoenix Air &c. Co. v. Al-Carol, Inc., 129 Ga. App. 386, 387 (199 SE2d 556) (1973). These decisions thus fully authorized the trial court’s determination that the notarized affidavits which were valid on their faces fulfilled the statutory requirements to dissolve appellant’s lien, and that the Hyzers were entitled to judgment as a matter of law.

We therefore reject appellant’s argument that it could revive its lien by showing that the affidavits were not properly executed. In so doing, we agree with appellees that Chambers Lumber Co. v. Hagan, 118 Ga. App. 392 (1), supra, although not specifically overruled has never been followed in subsequent cases, and thus has been implicitly overruled. Accordingly, we explicitly overrule Chambers in so far as it holds that submission of evidence that no oath was administered to attack an affidavit regular on its face in response to a motion for summary judgment is sufficient to present an issue for the jury as to whether a builder’s or seller’s affidavit constituted a legal affidavit. See Lear Siegler, Inc. v. Stegall, 184 Ga. App. 27 (360 SE2d 619) (1987). The correct rule is that an affidavit regular on its face, but challenged on the ground it was not properly sworn to or notarized, is as a matter of law sufficient if there is an “absence of any evidence indicating that the owner was aware of the irregularity, or allegations and proof of fraud and/or collusion. . . .” Jackson’s Atlanta &c. Co. v. Industrial Tractor &c. Co., supra at 422.

Judgment affirmed.

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


text:
    76770.
    CASGAR v. CITIZENS & SOUTHERN NATIONAL BANK.
    (372 SE2d 815)
   Banke, Presiding Judge.

Thomas Casgar brings this appeal from a summary judgment entered against himself and three other defendants in a suit by The Citizens & Southern National Bank (C & S) to collect two promissory notes which he and the three other defendants had guaranteed.

In February of 1985, Casgar made a loan of $350,000 to Trademark Properties, Inc., as financing for a real estate development project being undertaken by Trademark in Gwinnett County. In May and August of 1985, C & S loaned Trademark $300,000 and $624,000, respectively, as further financing for the project. Each of these loans was evidenced by a promissory note secured by the development property and guaranteed by Trademark’s principals, Alexander Perkowski and Robert Brindley. Although Casgar held a pre-existing security deed on a portion of the development property as security for his loan to Trademark, he agreed to subordinate his rights under this security deed to C & S, presumably to induce C & S to make the loans in question.

By late 1985, Trademark was in default of its repayment obligations under the two notes; and on February 6, 1986, Trademark, Perkowski, and Brindley agreed to transfer ownership of the development to Casgar and an associate, Thomas Peel. Pursuant to this agreement, Trademark conveyed title to the property to a corporation known as Thomas & Thomas Investments, Inc. On February 28, 1986, C & S executed an agreement consenting to the assumption. In return, it received from Casgar and Peel their personal guaranties of Thomas & Thomas’s obligations under the two notes.

Under Thomas & Thomas’s ownership of the development the notes went further into default, and in October of 1986, C & S began taking steps to foreclose upon the development property. Thomas & Thomas temporarily halted the threatened foreclosure by filing a bankruptcy petition; however, the bankruptcy court permitted C & S to proceed with the foreclosure; and on September 1, 1987, a foreclosure sale was conducted at which C & S acquired ownership of the development property for a bid of $600,000. The bank sought and obtained judicial confirmation of the sale, applied the $600,000 against the principal balance due on the notes, and, in the present action sought and obtained judgment against Casgar, Peel, Perkowski, and Brindley in the approximate amount of $191,000, representing the remaining principal due on the two notes, plus accrued interest, attorney fees, back taxes, and an unpaid loan fee.

In this appeal, Casgar contends that material issues of fact remain with respect to several defenses which he first raised some eight months after the suit was filed and some two months after C & S filed its motion for summary judgment, to wit: that C & S had fraudulently induced him to guarantee the notes by making certain material misrepresentations; that he had received no consideration for guaranteeing the notes; that both he and C & S had been laboring under a mistake with respect to their legal rights at the time the guaranty agreements were signed; and that C & S had discharged him from his obligations under the guaranty agreements by certain action or inaction on its part which had adversely affected the value of the property and had thereby increased his risk and liability in connection with the indebtedness. C & S has moved for an additional award of damages against Casgar for filing a frivolous appeal. Held:

1. Casgar contends that C & S defrauded him into signing the guaranty agreements by misrepresenting the value of the development property, the quality of construction which had thus far been completed, the amount of money which would be required to complete the project, its willingness to renew and extend the existing indebtedness “and ensure successful completion of the project,” and its right, under the terms of its existing security deeds, to approve the transfer of ownership from Trademark to Thomas & Thomas. Additionally, Casgar contends that the bank defrauded him by failing to disclose certain “problems” which were adversely affecting the development, such as difficulties in acquiring sewer easements and the existence of unpaid liabilities for materials.

The trial court correctly concluded that none of these alleged misrepresentations or concealments were actionable. It is evident from the record that it was precisely because of the financial and other difficulties facing the development that Casgar was motivated to assume ownership of the project from Trademark, Perkowski, and Brindley. Otherwise, his original $350,000 investment was in imminent danger of being wiped out by foreclosure. Clearly, C & S owed him no duty under the circumstances to act as his financial or legal adviser.

Misrepresentations are not actionable unless the hearer was justified in relying upon them in the exercise of common prudence and diligence. See Charter Medical &c. Co. v. Ware Manor, 159 Ga. App. 378, 380 (2) (283 SE2d 330) (1981). “[I]n the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations, failure to do which will bar an action based on fraud.” Hubert v. Beale Roofing, 158 Ga. App. 145, 146 (279 SE2d 336) (1981). There being no suggestion that the relationship between Casgar and C & S was anything other than an “arms-length” business relationship, Casgar was not justified in looking to the bank for advice regarding the financial viability of the project, nor was the bank under any duty to list for him the various obstacles facing the successful completion of the project. Accord Reeves v. Habersham Bank, 254 Ga. 615, 617 (1) (331 SE2d 589) (1985); Foremost Ins. Co. v. Southeast Recovery, 175 Ga. App. 794, 796 (3) (334 SE2d 375) (1985).

The bank’s alleged misrepresentations regarding its willingness to extend additional credit in the future also are not actionable. “Although fraud can be predicated on a misrepresentation as to a future event where the defendant knows that the future event will not take place (cits.), fraud cannot be predicated on a promise which is unenforceable at the time it is made. (Cits.) A promise to make a loan with no specification of the interest rate or maturity date is not enforceable and will not support an action for fraud.” Beasley v. Ponder, 143 Ga. App. 810 (240 SE2d 111) (1977).

2. Casgar contends that he received no consideration for guaranteeing the two notes because, contrary to certain representations allegedly made to him by C & S, the existing security deeds did not give C & S a right of approval over Trademark’s conveyance of the development property to Thomas & Thomas. Assuming the correctness of the latter proposition, it does not follow that Casgar received no consideration for guaranteeing payment of the notes, for it is apparent from the record that the notes were already in default at tbe time the assumption took place and that, by agreeing to the assumption, the bank was giving Casgar and Peel an opportunity to cure the default and avoid foreclosure. It is well settled that forebearance by a creditor to collect an obligation that is otherwise due and payable will constitute sufficient consideration to support a contract. See, e.g., Long v. Royster Co., 156 Ga. App. 152 (274 SE2d 134) (1980).

3. Casgar’s contention that he and C & S were laboring under a mutual mistake with respect to the bank’s legal rights under the security deeds amounts to nothing more than a restatement of his failure of consideration defense and is without merit for the reasons set forth in Division 2, supra.

4. Casgar contends that C & S increased his risk on the guaranty agreements by allowing the property to deteriorate during the six-month period between the date the bankruptcy stay was lifted and the date the foreclosure was ultimately consummated. However, the guaranty agreements expressly provided that the guarantor’s obligations would not be affected “by reasons of any action taken or omitted by Lender, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of the undersigned [guarantor]. ...” Thus, pretermitting whether the bank’s delay in completing the foreclosure proceedings would otherwise have created a defense to the present action, Casgar has waived his right to assert such a defense. Accord Delta Diversified v. C & S Nat. Bank, 171 Ga. App. 625 (4), 630 (320 SE2d 767) (1984); Pippin v. Brigadier Ind. Corp., 150 Ga. App. 401 (1) (258 SE2d 18) (1979).

Decided September 6, 1988.

Stephen C. Whicker, for appellant.

James D. Meadows, Jeffrey W. Kelley, for appellee.

5. The bank’s motion for an assessment of damages against Casgar for pursuing a frivolous appeal is denied. While the question is a close one, we are persuaded by the complexity of the factual setting which gave rise to this litigation and by the extensive research which has been done by Casgar’s counsel that the appeal was not so palpably without merit as to permit no other conclusion than that it was filed for purposes of delay only. See Great A & P Tea Co. v. Burgess, 157 Ga. App. 632 (4) (278 SE2d 174) (1981); OCGA § 5-6-6.

Judgment affirmed.

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


text:
    76787.
    BARTON v. THE STATE.
    (372 SE2d 647)
   Sognier, Judge.

Seab Barton appeals from his conviction of possession of cocaine with intent to distribute.

In response to an informant’s tip, law enforcement officers went to a lounge in Walthoursville, and observed appellant and two women standing outside the lounge near a car. Appellant admitted the car belonged to his father-in-law, and that he had been driving it. Wayne Higginbotham, a City of Hinesville detective, testified at trial that he and Deputy Virgil Clark of Liberty County had gone to the lounge, and that he had asked appellant for some identification, at which time appellant opened his hand and dropped “two chunky white rocks” to the ground. Higginbotham further testified he picked up those two “rocks” and gave them to Clark. Clark testified that he searched the vehicle with appellant’s permission, and that above the visor on the driver’s side he found a Kool cigarette pack containing seventeen separately wrapped “rocks,” and that under the front passenger seat he found two empty film canisters containing small amounts of white powder. Clark testified that he put the two “rocks” given to him by Higginbotham into one of the two empty film canisters found in the vehicle, and turned them over to Patrick Long, of the state crime laboratory, along with the cigarette pack containing the seventeen chunks. Appellant stipulated at trial that both the seventeen chunks in the cigarette pack and the two chunks in the film canister tested positive for cocaine. Both Clark and Higginbotham testified that after dropping the “rocks” appellant had attempted to flee.

Decided September 6, 1988.

Jack E. Carney, Jr., for appellant.

Dupont K. Cheney, District Attorney, David C. Walker, Assistant District Attorney, for appellee.

Appellant testified that he smoked Kool cigarettes; that he had not dropped the two chunks; and that his car had been parked outside the lounge for three hours and had been unlocked. Appellant stated that while he was sitting in the car outside the lounge, two men he did not know had approached and offered to fix the cassette player in the car, and consequently had been inside the car that evening.

In his sole enumeration of error, appellant contends the trial court erred by failing to give his requested charge on equal access. Although the trial court did not give the charge appellant requested, the charge given the jury did cover the doctrine of equal access. “The failure to give requested instructions in the exact language requested, where the charge given substantially covers the same principles, is not grounds for reversal. [Cits.]” Kelly v. State, 241 Ga. 190, 191-192 (4) (243 SE2d 857) (1978).

Further, assuming, without deciding, that the trial court’s failure to give appellant’s requested charge was error, it would not be reversible error here. Even discounting the cocaine found in the car, the trial transcript contains ample other evidence sufficient to support the conviction. Because the jury would have been authorized to convict appellant without reference to the contraband found in the car, applying the standard set forth in Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976), we find that it is highly probable that any error in the charge did not contribute to the judgment in this case, and thus any such error was harmless. Morgan v. State, 181 Ga. App. 150, 151 (351 SE2d 497) (1986).

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


author: McMurray, Presiding Judge.

text:
    76793.
    CAULEY v. TURMAN REALTY.
    (373 SE2d 398)
   McMurray, Presiding Judge.

On March 24, 1988, appellant filed his appeal in this court. Since no enumeration of errors and brief were timely received by this court, on May 19, 1988, we ordered appellant to file such no later than May 27, 1988. The appellant failed to submit an enumeration of errors and brief in compliance with our order and we hereby dismiss the appeal pursuant to Rule 27 (a) and Rule 14 of the Rules of the Court of Appeals of Georgia.

Decided September 6, 1988.

LeRoy Cauley, pro se.

Thomas L. Thompson, Jr., for appellee.

Appeal dismissed.

Pope and Benham, JJ., concur.


text:
    76848.
    SHANNON v. COMBUSTION ENGINEERING, INC.
    (372 SE2d 818)
   Banke, Presiding Judge.

This is an appeal from a summary judgment entered in favor of the appellee, Combustion Engineering, Inc., in an action by the appellant to recover damages for an injury arising out of an industrial accident.

The appellant was employed by Ingalls Iron Works, a subcontractor engaged by Georgia Power Company to participate in the construction of a power plant. The appellee had also been engaged by Georgia Power Company as a subcontractor and in that capacity operated a crane at the job site. During the course of the construction, the appellant’s hand was crushed by some boards being removed by the crane from the interior of the plant. The appellant received workers’ compensation benefits for the injury from his employer but also sought damages from the appellee, alleging, inter alia, that the reason the crane operator had been unable to stop the crane in time to prevent the injury was because commands were not being communicated to him directly from the work site but were being relayed via an intermediary. The appellant contends that had the appellee either employed a direct communication system or informed him of the danger of using the intermediary system, the injury would not have occurred. Held:

1. The appellee contends that it was insulated from liability pursuant to the Workers’ Compensation Act because at all times relevant to the incident its crane operator was working under the direction and control of the appellant’s employer as a “loaned servant.” See generally OCGA § 34-9-11.

The loaned servant doctrine applies where “ ‘(1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control, and (3) the special master had the exclusive right to discharge the servant.’ ” Six Flags Over Ga. v. Hill, 247 Ga. 375, 377 (276 SE2d 572) (1981).

In support of its motion for summary judgment, the appellee submitted the affidavit of a foreman working for the appellant’s employer, Ingalls Iron Works, to the effect that the appellee’s only function had been to provide the crane service and that, on the particular occasion in question, the crane operator had been working under the supervision and control of Ingalls Iron Works. However, there was no evidence tending to establish that Ingalls Iron Works had the exclusive right to discharge the crane operator or to put another in his place. See Freeman v. Pumpco, 167 Ga. App. 312 (306 SE2d 385) (1983). Consequently, the evidence of record does not establish that the crane operator was a loaned servant working for Ingalls Iron Works. It follows that the appellee was not entitled to summary judgment on the basis of the Workers’ Compensation Act. Accord Cleveland Elec. Constructors v. Craven, 167 Ga. App. 274 (306 SE2d 364) (1983).

Decided September 6, 1988.

Kyle Yancey, for appellant.

Robert L. Pennington, for appellee.

2. The appellant concedes that Ingalls Iron Works was responsible for the board removal operation, that a foreman employed by that company had selected the communication system being used at the time of the accident, that the crane operator was operating the crane in a careful and competent manner at the time the injury occurred, and that the operator responded immediately to the order to stop. He contends, however, that the appellee and its crane operator were under a duty to warn him that communications were being relayed to the operator through an intermediary, so as to enable him to take “the necessary steps” to avoid injury. We disagree. It being undisputed that it was not the appellee but rather the appellant’s own employer which had devised both the communication system and the process for performing the work in question, we can conceive of no legal theory upon which the appellee could be held liable for the injury. Certainly, the appellee cannot be charged under the circumstances with responsibility for clearing the communication arrangements with the appellant. We consequently hold that the trial court did not err in granting the appellee’s motion for summary judgment.

Judgment affirmed.

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


author: Carley, Judge. Deen, Presiding Judge,

text:
    76882.
    JONES v. THE STATE.
    (372 SE2d 828)
   Carley, Judge.

Appellant was tried before a jury and found guilty of the offense of burglary. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict.

1. Appellant enumerates the general grounds. “After a review of the entire record, we find that a rational trier of fact could reasonably have found from the evidence adduced at trial proof of guilt of the defendant beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The trial court’s failure to give appellant’s requested charge on identity is enumerated as error. A review of the record shows, however, that there was no evidence which raised the issue of mistaken identity in this case. Accordingly, the trial court’s refusal to give appellant’s requested charge on identity was not error. See Williams v. State, 171 Ga. App. 34, 35 (4) (318 SE2d 768) (1984).

3. The trial court’s failure to give appellant’s requested charge concerning the motivation and bias of witnesses is enumerated as error. “As the requested instruction at least minimally was covered adequately by the charge given [on credibility of witnesses], the court’s failure to instruct the jury in the language requested, even if such request were perfect, does not constitute reversible error. [Cits.]” Mitchell v. State, 157 Ga. App. 181, 183 (3) (276 SE2d 864) (1981).

Judgment affirmed.

Sognier, J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

While agreeing with the majority opinion’s affirmance of the appellant’s conviction, further factual exposition and delineation of what occurred will perhaps bolster the majority opinion; otherwise application of Rule 37 (b) is a viable option. A mute opinion (absence of any facts), where the liberty of a citizen is at stake, needs to be strengthened. The following summary of the facts is offered for that purpose.

As the appellant and his cousin were going home early one morning, the appellant decided to get some liquor by going through the roof of a liquor store. The appellant and his cousin took several bottles of liquor and hid them by a peach tree. The next day the appellant’s cousin related this to his mother, who informed the liquor store’s owner, who notified the sheriff, who looked around on the roof of the liquor store and found the appellant’s cigarette lighter that had a nude woman painted on one side. The appellant consequently was picked up, and subsequently gave an oral statement in which he admitted the offense. At trial, however, the appellant denied giving the statement.

The evidence authorized a rational trier of fact to find the appellant guilty beyond a reasonable doubt of burglary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided September 6, 1988.

Robert M. Bearden, Jr., for appellant.

Willis B. Sparks III, District Attorney, Thomas J. Matthews III, Assistant District Attorney, for appellee.


text:
    76894.
    MARTIN et al. v. CHILDREN’S SESAME, INC.
    (372 SE2d 648)
   Banke, Presiding Judge.

The Martins and their minor daughter, Angela, sued the appellee to recover for personal injuries which Angela had sustained at the appellee’s day-care center, when her twin sister slammed a rest room door on her finger, severing the fingertip. The jury returned a verdict in favor of the defendant, and the Martins filed this appeal from the denial of their motion for new trial. Held:

1. Defendant has moved to dismiss the appeal on the ground that the plaintiffs failed to file their motion for new trial within 30 days after the entry of the final judgment in the case, as required by OCGA § 5-5-40. See generally Johnson v. State, 227 Ga. 219 (180 SE2d 94) (1971).

OCGA § 5-5-41 (a) gives the trial judge the discretion to allow the filing of an extraordinary motion for new trial after the expiration of the 30-day period where “some good reason [is] shown why the motion was not made during such period.” Normally, of course, the “good reason” necessary to permit the filing of an extraordinary motion for new trial consists of newly discovered evidence. However, the late filing of a motion for new trial may also be predicated on circumstances other than newly discovered evidence. See Union Life Ins. Co. v. Aaronson, 109 Ga. App. 384 (136 SE2d 142) (1964); Jones v. Cooke, 169 Ga. App. 516 (313 SE2d 773) (1984).

In explanation of the late filing of their motion for new trial, the plaintiffs submitted affidavits showing without dispute that on two occasions during the period in which a timely motion for new trial could have been filed, they were informed by the clerk’s office that the judgment had been filed on April 18, 1987. In actuality, the judgment had been filed on April 13, 1987; but because the ink on the filing stamp was smudged, the “3” appeared to be an “8”; and it was misinterpreted as such by personnel in the clerk’s office. In reliance on that interpretation, the plaintiffs filed their motion for new trial on May 18, 1987, which would have been within the 30-day period had the representations made to them by the clerk’s office been correct. Under these circumstances, we cannot say that the trial judge abused his discretion in concluding that the late filing of the motion was supported by “good reason” within the contemplation of the statute. The defendant’s motion to dismiss the appeal is consequently denied.

Decided September 6, 1988.

Charles J. Vrono, for appellants.

2. The plaintiffs contend that the trial judge improperly excluded evidence of a previous incident at the day-care center in which another child’s fingers had been caught in the same door.

“As a general rule in all negligence actions, evidence of similar acts or omissions is not admissible. [OCGA § 24-2-2] (cit.). However, ‘(i)f proof of a similar accident or similar method of acting tends to prove some fact of the case on trial, the testimony falls within an exception — such as to show knowledge of a defect (cit.), or causation (cit.) or to rebut a contention that it was impossible for the accident to happen in the manner claimed (cit.).’ (Cit.) Independent testimony of other transactions has also been admitted to show the prior existence of a dangerous condition.” Gunthorpe v. Daniels, 150 Ga. App. 113-114 (257 SE2d 199) (1979).

In the present case, the defendant stipulated before the jury that it “had prior knowledge . . . that children in the day-care center slam or close doors in the center, including the door involved in the injury to Angela Martin, and that the possibility of injury to children existed when that occurred.” In light of this stipulation and of the plaintiffs’ failure to show that the potential for injury presented by the operation of the door in question was greater than that presented by any of the other doors at the day-care center or, for that matter, by doors in general, we hold that the trial court did not abuse its discretion in determining that the probative value of the excluded evidence was outweighed by its potential for prejudicing the jury. See generally Clark v. State, 149 Ga. App. 641, 645 (255 SE2d 110) (1979).

3. We reject the plaintiffs’ contention that the verdict was contrary to the evidence. The defendant in this case introduced evidence tending to show that it was in compliance with all pertinent state regulations governing the operation of day-care centers and that it had otherwise exercised reasonable care for the safety of the children. The burden of proving negligence was on the plaintiffs; and “[i]n the absence of legal error, an appellate court is without jurisdiction to interfere with a verdict supported by some evidence. . . .” Pembrook Mgt. v. Cossaboon, 157 Ga. App. 675, 676 (278 SE2d 100) (1981).

Judgment affirmed.

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

Wade K. Copeland, for appellee.


text:
    76904.
    NELSON v. THE STATE.
    (372 SE2d 829)
    Decided September 6, 1988.

      Larry B. Mims, for appellant.

      David E. Perry, District Attorney, for appellee.
   Carley, Judge.

Appellant was tried before a jury and convicted of selling marijuana in violation of OCGA § 16-13-30 (j). He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict.

At trial, the State called as its witness an undercover police officer who testified that appellant had sold him a quantity of marijuana. He also testified that a confidential informant had identified appellant as “Pete White.” On cross-examination, appellant sought to question the officer concerning the reliability of the confidential informant. In his sole enumeration, appellant urges that his right to a thorough and sifting cross-examination of the officer as to this issue was erroneously restricted by the trial court.

Even assuming the relevancy of an inquiry into the reliability of a confidential informant whose only apparent connection with the case was the incorrect identification of appellant as “Pete White,” the transcript shows that appellant was nevertheless allowed to pursue this topic during the cross-examination of the officer. Appellant was merely prevented from eliciting inadmissible hearsay and legal conclusions from the officer. The right to a thorough and sifting cross-examination is not abridged where the excluded testimony would be based upon speculation or hearsay. Rhodes v. State, 170 Ga. App. 473, 476 (3) (317 SE2d 285) (1984).

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


text:
    76933.
    BELCHER v. THE STATE.
    (372 SE2d 650)
   Deen, Presiding Judge.

Appellant Belcher was convicted of first-degree forgery in connection with the uttering of a forged check and accepting the proceeds when it was presented for cashing at a Coweta County bank. The check was written on an account from which it had been reported to the bank that several blank checks were missing.

Decided September 6, 1988.

Christopher S. Marshburn, for appellant.

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

On appeal Belcher enumerates as error (1) the denial of his motions for directed verdict or, in the alternative, the insufficiency of the evidence to authorize a finding of guilty beyond a reasonable doubt; and (2) the admission of allegedly hearsay testimony which was prejudicial to the appellant. Held:

1. We first address the allegedly hearsay testimony. On cross-examination by the State, Eddie Blankenship, a defense witness and the person who had driven the automobile in which Belcher was riding when the forged check was presented and cashed, denied having told a detective who worked on the case that a (forged) check would be forthcoming from the appellant. At the close of the evidence, the State recalled the detective to rebut the testimony denying the prior statement. OCGA § 24-9-83 provides that a “witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case.” See Harden v. State, 166 Ga. App. 536 (304 SE2d 748) (1983). Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982), dealt with a prior inconsistent statement by an in-court witness. There the Supreme Court held that the prior inconsistent statement was not limited to impeachment but was substantive evidence of the matter asserted. Gibbons is on point with the situation here, and this enumeration is without merit.

2. Examination of the entire record, including the trial transcript, reveals a sufficiency of competent evidence both to authorize the trial court to deny the motions for directed verdict, OCGA § 17-9-1, and to authorize the rational trier of fact to find appellant guilty as charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    76942.
    LAWSON v. WATKINS et al.
    (372 SE2d 830)
   Deen, Presiding Judge.

The appellees, Robert and Geneva Watkins, commenced this action against Winston Lawson, seeking to recover (1) money allegedly borrowed by Lawson, (2) his share of the legal expenses incurred with the foreclosure of a night club jointly owned by the Watkinses and Lawson, and (3) attorney fees. A jury found in favor of the appellees on some of their claims, and the trial court entered judgment for the Watkinses in the amount of $5,500 for various loans, $500 for the foreclosure costs, and $3,740 attorney fees. This appeal by Lawson followed. Held:

Decided September 6, 1988.

S. Phillip Brown, for appellant.

Roosevelt Warren, Edwin S. Varner, Jr., for appellees.

1. In all except one of his enumerations of error, Lawson contends that the trial court erred in denying his motion for directed verdict on the various claims asserted by the Watkinses. To support his contentions, Lawson submitted only the portion of the trial transcript containing Robert Watkins’s testimony and the hearing on the motion for directed verdict.

“When the only question for determination requires a consideration of the evidence and where no transcript of the evidence is contained in the record, the judgment of the trial court must be affirmed. [Cit.]” Brown v. Donahoo, 141 Ga. App. 309, 310 (233 SE2d 269) (1977). Lawson’s appeal from the denial of his motion for directed verdict requires consideration of all the evidence, and his submission of the transcript of the testimony of one witness presents an insufficient record for that purpose. “Where the appellant fails to bring up a transcript or otherwise meet his burden of affirmatively showing error by the record, the judgment will not be disturbed. [Cit.]” Welch v. Mercer, 165 Ga. App. 776 (302 SE2d 629) (1983).

2. Lawson’s other enumeration of error concerning his motion to establish a right of set-off, filed several weeks after the trial and jury verdict but before entry of judgment on the verdict, is without merit.

Judgment affirmed.

Carley and Sognier, JJ., concur.