text:
    75322.
    THE STATE v. BROWN et al.
    (366 SE2d 816)
   Benham, Judge.

Following the execution of a warrant to search their home, appellees were arrested and indicted for alleged violations of the Georgia Controlled Substances Act and the Georgia Dangerous Drug Act. The trial court granted appellees’ motion to suppress the evidence seized during the search of their home, and the State appeals from that ruling. See OCGA § 5-7-1 (4).

The trial court ordered suppression of the evidence after concluding that the affidavit executed in support of the application of the warrant did not set forth sufficient facts to establish probable cause to believe that marijuana and cocaine were being kept at the Brown residence. In the affidavit the trial court found deficient, the affiant officer averred that he and another member of the Narcotics Squad of the Augusta Police Department “received information from a concerned citizen that a large quantity of Marihuana and some Cocaine is being kept in [the Browns’] dwelling. During the past two days these officers have had this dwelling under observation during the day and night, mostly at night, and have observed numerous black males and females go to this dwelling staying only two to three minutes. The officers also have observed Carmella Brown meet some of these individuals at the front door and give them small manila [envelopes] suspected of containing marihuana, for unknown amount of cash which has been seen exchanged. Some of these individuals have been identified by the officers as being known drug users and abusers. Officers have also seen some individuals leaving this dwelling enter their vehicles and open what appeared [to be] a manila envelope which was in their hand upon leaving the dwelling and after a few minutes light what is suspected of being a handrolled marihuana cigarette and then depart the area.”

1. The magistrate had as his task “to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U. S. 213, 238 (103 SC 2317, 76 LE2d 527) (1984); State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984). We begin our review of the issues presented by this case with the acknowledgment that we “should apply a deferential standard of review [of the magistrate’s determination of probable cause] in order to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.” State v. Fultz, 171 Ga. App. 886, 888 (321 SE2d 381) (1984). However, the fact that a warrant was issued and the search conducted pursuant thereto does not cause us to terminate our review. We must determine, among other things, whether the hearsay information supplied to the affiant, coupled with the affiant’s personal observations, presented a fair probability that contraband would be found at the Brown residence.

2. As was earlier stated, the magistrate must consider the veracity and basis of knowledge of persons supplying hearsay information to an affiant officer. The affidavit in the case at bar contained no information about the basis of the informant’s knowledge or reasons why the informant should be believed. In effect, the investigation which culminated in the arrest of appellees had as its inception information received by the affiant officer over the telephone from an anonymous tipster described by the affiant as a “concerned citizen.” “This court has always given the concerned citizen informer a preferred status insofar as testing the credibility of his information. [Cits.]” Whitten v. State, 174 Ga. App. 867, 868 (331 SE2d 912) (1985). However, before an anonymous tipster can be elevated to the status of “concerned citizen,” thereby gaining entitlement to the preferred status regarding credibility concomitant with that title, there must be placed before the magistrate facts from which it can be concluded that the anonymous tipster is, in fact, a “concerned citizen.” See Cichetti v. State, 181 Ga. App. 272 (1) (351 SE2d 707) (1986) (affiant personally knew the informant to be truthful, gainfully employed, and without a criminal record); Alewine v. State, 180 Ga. App. 679 (350 SE2d 46) (1986) (affiant as well as the issuing justice of the peace knew the informant, who was a long-time area resident, a truthful businessman, and without a criminal record); Futch v. State, 178 Ga. App. 115 (1) (342 SE2d 493) (1986) (informant described as mature, regularly employed person who displayed a truthful demeanor, had a personal connection to the suspect, and made a personal appearance before the magistrate); Whitten v. State, supra (informant known to the affiant for more than three years and described as a mature, regularly-employed family man with no criminal record); State v. Hockman, 171 Ga. App. 504 (320 SE2d 241) (1984) (informant known to the affiant for more than four years and described as a mature, gainfully-employed person with no criminal record who had previously given information which led to the arrest and conviction of three drug felons); Keller v. State, 169 Ga. App. 596 (314 SE2d 255) (1984) (informant known to the affiant for six months and described as a mature, regularly-employed, church-going family man); GaDonna v. State, 164 Ga. App. 582 (1) (298 SE2d 556) (1982) (informants known to the affiant and described as reliable, successful, respected businessmen of the community); and Page v. State, 136 Ga. App. 807 (222 SE2d 661) (1975) (informant known to the affiant for over a year and described as a mature, truthful, gainfully-employed, respected person in the community with no known criminal record). An informant’s veracity, reliability, and basis of knowledge are “highly relevant in determining the value of his report” and while these elements are not “entirely separate and independent elements to be rigidly exacted in every case,” they are “closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is ‘probable cause’ to believe that contraband or evidence is located in a particular place.” Illinois v. Gates, supra at 230. The affidavit in the case at bar contained no information from which it could be gleaned that the tipster was, in fact, a “concerned citizen.” The magistrate was given nothing other than the affiant’s conclusory statement that the tipster was a concerned citizen. That will not suffice. See State v. Jackson, 166 Ga. App. 671 (2) (305 SE2d 417) (1983). Therefore, the informant was not entitled to a preferred status insofar as testing the credibility of his information. The complete lack of information about the informant and the basis of his knowledge relegated the information he supplied to the status of rumor. In point of fact, the affiant officer testified at the suppression hearing that the informant gave no facts from which the officer could conclude that contraband might be found in the Brown home, and the officer admitted the information amounted to “just a suspicion” on the part of the informant.

3. The trial court also concluded that the affiant’s statements concerning the independent investigation conducted by him “were conclusory statements at best” that did not set forth sufficient facts to establish probable cause to believe that marijuana and cocaine were present at appellees’ home.

The affiant officer and his partner observed “numerous” people, some of whom were described as known drug users and abusers, visiting appellee’s residence for short periods of time during which appellee Carmella Brown gave them small manila envelopes in exchange for cash. Some of the visitors, upon re-entering their vehicles, appeared to open the manila envelopes and, several minutes later, light a cigarette and leave. The observation of activity that fits a “drug traffic pattern” raises at most a mere suspicion that contraband is being kept on the premises, and does not amount to probable cause to search the home. State v. Porter, 167 Ga. App. 293 (306 SE2d 377) (1983); McGuire v. State, 136 Ga. App. 271 (2) (220 SE2d 769) (1975); Maxwell v. State, 127 Ga. App. 168, 170 (193 SE2d 14) (1972). Compare Borders v. State, 173 Ga. App. 110 (1) (325 SE2d 626) (1984) (where the affidavit contained “specific drug-related information concerning those who lived on the premises.”) At the hearing, the affiant officer admitted he did not know the names of the “known drug abus-. ers” and had never seen them before, and then described them as people his partner had seen previously “in drug areas.”

In sum, we concur with the trial court that the affidavit presented to the magistrate did not contain sufficient information to conclude that there was a fair probability that contraband would be found on appellees’ premises.

Judgment affirmed.

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

Decided March 2, 1988.

Sam B. Sibley, Jr., District Attorney, George N. Guest, Assistant District Attorney, for appellant.

Martin C. Puetz, for appellees.

Banke, Presiding Judge,

concurring specially.

The trial judge’s decision to grant the motion to suppress was based, in part, on the following finding of fact: “[The affiant’s] testimony is not credible in that he was unable to corroborate, in any manner, his testimony of when and where the surveillance took place and the number of individuals who were allegedly seen going to and from [the defendant’s residence].”

The trial judge sits as the ultimate trier of fact at a hearing on a motion to suppress, and his findings will not be disturbed if there is any evidence to support them. State v. Swift, 232 Ga. 535, 536 (207 SE2d 459) (1974). “Credibility of witnesses, resolution of any conflict or inconsistency, and weight to be accorded testimony [are] solely the province of the judge on a motion to suppress.” Rogers v. State, 155 Ga. App. 685, 686 (272 SE2d 549) (1980). Consequently, I agree that the grant of the motion to suppress should be affirmed.

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


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    75299.
    LAWSON et al. v. SOUTHERN RAILWAY COMPANY.
    (366 SE2d 801)
   Sognier, Judge.

Ray Lawson and Mattie Lawson instituted a wrongful death action against Southern Railway Company after their thirteen and-a-half-year-old son was struck and killed by a Southern Railway train. The jury returned a verdict in favor of the railroad and the Lawsons appeal.

Construing the evidence to support the verdict, see generally Concrete Constr. Co. v. City of Atlanta, 176 Ga. App. 873, 874 (2) (339 SE2d 266) (1985), the transcript reveals that appellants’ decedent accompanied Jeffrey Hewlett and Gary Newton to appellee’s trestle spanning the Toccoa gorge. Despite having been instructed by his parents never to go on the trestle, the decedent accompanied Hewlett to a point at least 30 feet and possibly as much as 200 feet onto the trestle. Upon being warned by Newton that a train was approaching, both the decedent and Hewlett ran back in the direction of the train “trying to beat it to the end of the trestle.” After hearing Newton’s shouted warning that the train was travelling on the same track on which they were running, Hewlett stepped to safety on the adjacent track and hollered to the decedent to do the same. (The decedent, who was younger and swifter than Hewlett, had so outdistanced his companion that Hewlett was not able to catch the boy in time to pull him to safety.) Appellee’s train struck the decedent in mid-air some three to five feet from the end of the trestle as the boy was attempting to leap to safety. Both the train engineer and the train conductor testified that due to the angle of the track and the brightness of the sunlight, they had barely discerned the decedent’s presence on the trestle before the accident occurred and that they did not realize immediately that the decedent was not an adult.

1. In their first two enumerations of error, appellants assert error in the trial court’s charge on the duty of care owed to trespassers by a railroad. Appellants cite this court to a line of cases in which the duty attached to the railroad is that of ordinary care to avoid injuring a trespasser where the general presence of trespassers habitually crossing at a particular spot is known to the railroad and has continued without the disapproval of the railroad. See Western & Atlantic R. Co. v. Michael, 175 Ga. 1 (6) (165 SE 37) (1932); Seaboard Coast Line R. Co. v. Clark, 122 Ga. App. 237, 243 (13) (176 SE2d 596) (1970). While appellants contend in their second enumeration that the trial court’s failure to give their requested charge reflecting this line of cases constituted reversible error, we do not have the requested charge in the record before us because appellants, in their notice of appeal, specifically omitted all matters in the record except the trial transcript, which does not contain a transcript of the charge conference or contain in any definite form the charge in question. Thus, we cannot address appellants’ contention that failure to give this charge was error. See Acker v. Jenkins, 178 Ga. App. 393, 394 (1) (343 SE2d 160) (1986). The charge given by the trial court reflects that line of cases in which the only duty owing to a trespasser by a railroad is not to wantonly or wilfully injure him after his presence has been discovered, where the general presence of trespassers was not known or anticipated. See Ashworth v. Southern Railway Co., 116 Ga. 635, 639 (43 SE 36) (1902); Southern Railway Co. v. Perkins, 66 Ga. App. 66, 72 (2) (17 SE2d 95) (1941). Since evidence was adduced at trial that neither appellee nor its employees had ever observed or had reason to anticipate the presence of a trespasser on the trestle, there was some evidence to support giving this charge. See Dept. of Transportation v. 19.646 Acres of Land, 178 Ga. App. 287, 288 (2) (342 SE2d 760) (1986). Although appellants argue there was also evidence indicating appellee should have known or anticipated the presence of trespassers in the area before the beginning of the trestle, this evidence, while arguably providing support for the charge requested by appellants, did not serve to render erroneous the instruction given by the trial court based on other evidence. See Cale v. Jones, 176 Ga. App. 865, 868 (4) (338 SE2d 68) (1985).

Decided February 24, 1988

Rehearing denied March 3, 1988

William C. Lanham, Clark H. McGehee, for appellants.

John A. Dickerson, Burt DeRieux, Emory F. Robinson, Eileen M. Crowley, for appellee.

2. Appellants contend the trial court erred by charging the jury that an engineer, upon seeing a person apparently of full age and capacity upon the railroad track, has a right to assume that that person “will attempt to leave the tracks or otherwise exercise ordinary care for his own safety.” The basis asserted at trial for appellants’ argument that this charge was improper was the fact that decedent, being a thirteen and-a-half-year-old boy on a high trestle several hundred feet above ground, could not have extricated himself from his peril. Appellants cite Air-Line Railway Co. v. Gravitt, 93 Ga. 369, 408-409 (5) (20 SE 550) (1893), in which a man and plaintiff’s son were killed on a trestle by a train. The court, after noting that persons in charge of a locomotive may presume that a human, seen upon a railroad track with no apparent infirmities, will leave the track for his own protection, stated that this presumption was not applicable under the facts therein since it was obviously out of the power of the victims to escape danger. However, the evidence in Gravitt indicates that it was not possible for the victims to “[go] off to one side.” In the case sub judice, there was evidence that the decedent had only to heed the shouts of his two companions and step to the other track in order to extricate himself, as did Jeffrey Hewlett, from the peril posed by the on-coming train. There was also evidence that the persons in charge of appellee’s train did not at first realize that appellants’ decedent was a boy; further, there was evidence that the decedent was a bright and potentially exceptional boy, from which the jury could have determined that the decedent had the capacity to understand both the danger he was in and the avenue of escape available to him. Thus, since there was evidence from which the jury could have determined that by otherwise exercising ordinary care the decedent could have extricated himself from his peril, we do not agree with appellants that the trial court’s charge was so inappropriate as to constitute reversible error. See generally Cale, supra.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


author: Pope, Judge. Deen, Presiding Judge,

text:
    75661.
    JOHNSON DRILLING COMPANY, INC. v. BANK OF THE SOUTH, N.A.
    (367 SE2d 559)
   Pope, Judge.

Summary judgment was granted to defendant-appellee Bank South based upon the following undisputed facts. In 1980 John and Hubert Johnson, owners of appellant Johnson Drilling Company, set up two mining companies, J. J. Mining Company and J & P Coal Company (hereinafter “the mining companies”). In order to obtain a reclamation bond as required by the State of Tennessee, the Johnsons requested Bank South to issue the mining companies a letter of credit in the amount of $40,000. The letter of credit was issued and payment of all sums advanced against it was guaranteed by Johnson Drilling Company, as a long-time customer of the bank. The agreement for the letter of credit also provided that Bank South had the right to set-off any sums owed the bank against any funds of Johnson Drilling Company held by the bank. When the letter of credit was drawn upon by the bonding company to which it was given, Bank South paid $40,000 to that company and, acting pursuant to its rights under the guaranty, set-off that amount against the general account of Johnson Drilling Company.

The Johnsons objected to this set-off and met with Bank South officials, who agreed to return the funds to the Johnson Drilling Company account and to accept in lieu thereof two unsecured promissory notes from the mining companies totaling $40,000. According to the deposition testimony of its officers who participated in this transaction, Bank South in accepting these notes viewed Johnson Drilling’s pre-existing obligation as guarantor under the agreement for the letter of credit to be continuing. Paragraph 11 of that agreement provided in pertinent part: “As security for the payment and performance of any and all of our [Johnson Drillings’] obligations and liabilities to you [Bank South], direct and indirect, absolute or contingent, due or to become due, now existing or hereafter arising, each of us hereby pledges to you and/or gives you a general lien upon and/ or right of set-off of, all right, title and interest of each of us in and to the balance of every deposit account, now or at any time hereafter existing, of each of us with you, or any other claims of any of us against you, . . . and in any other property, rights and interests of each of the undersigned, or any evidence thereof, which have been or at any time shall be delivered to or otherwise come into your possession, custody or control . . . ; and you shall be deemed to have possession, custody or control of any such property actually in transit to or set apart for you or any of your agents, correspondents or others acting in your behalf.”

After no payments were made on the promissory notes by the mining companies, Bank South again set-off the $40,000 against the Johnson Drilling Company account, plus accrued interest. Johnson Drilling sued for the return of these funds, contending that it was not contemplated that it would have any continued liability as guarantor on the second transaction. Bank South moved for summary judgment based upon the premise that the set-off was to compensate the bank for a debt that Johnson Drilling Company had guaranteed, for which the subsequent promissory notes executed by the mining companies did not act as a novation. Appeal is from the ruling of the trial court that the set-off was permitted as a matter of law. Held:

The issue presented in this appeal, to wit, whether the substitution of the mining companies’ notes for the original account indebtedness resulted in the discharge of the guarantor Johnson Drilling Company from liability under the guaranty agreement, has previously been decided adversely to appellant. In Columbia Nitrogen Corp. v. Mason, 171 Ga. App. 685, 686 (320 SE2d 838) (1984), it was held “that the mere execution by an account debtor of a promissory note evidencing the indebtedness due on the account does not constitute a novation of the original obligation and does not otherwise operate to discharge a guarantor of the account indebtedness from liability. [Cit.]” See generally Haynie v. First Nat. Bank, 117 Ga. App. 766 (162 SE2d 27) (1968). Bank South would not have issued or renewed the letter of credit on behalf of the mining companies without Johnson Drilling as a guarantor. As explained by one of the participating bank officers, “the only reason for the bank to be doing business with J & P and J & J Coal was because of the relationship with Johnson Drilling. . . . Their credit was Johnson Drilling’s credit, because they were to us a subsidiary function of Johnson Drilling.”

“If the [guaranty agreement] was intended to restrict liability to particular transactions, words to that effect should have been chosen. As written, it did not accomplish this. [Cit.]” White v. Chapman, 149 Ga. App. 409, 412 (254 SE2d 434) (1979). Thus, there was no need to require any other collateral as security for the promissory notes subsequently executed by the mining companies, because Johnson Drilling’s status as guarantor of the letter of credit was not affected by this transaction. See Crutchfield v. Trust Co. Bank, 157 Ga. App. 557 (1a) (278 SE2d 138) (1981). Any negligent act of the bank which caused the bond forfeiture necessitating drawing against the letter of credit might give rise to a cause of action against Bank South in tort, but it would not relieve Johnson Drilling of liability as guarantor.

The language of the guaranty agreement covering “any and all” present and future obligations and liabilities was plain and unambiguous, and thus not subject to construction by the trial court. See Remler v. Coastal Bank, 179 Ga. App. 25, 27 (345 SE2d 79) (1986). There was no evidence presented that either the debt or the obligation under the guaranty was extinguished and, except for the first offset which was replaced in Johnson Drilling Company’s account, Bank South has never received any compensation or consideration for paying $40,000 on the letter of credit. The rule is that a bank may apply the amount of the account of one of its depositors to a matured debt owed to the bank regardless of whether the indebtedness of the depositor be that of a principal or upon an obligation on which the depositor is only secondarily liable. See Nat. City Bank v. Busbin, 175 Ga. App. 103 (3) (332 SE2d 678) (1985), and cits. It follows that summary judgment was properly granted in favor of Bank South.

Judgment affirmed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Benham and Beasley, JJ., concur. Carley, J., concurs in judgment only. Deen, P. J., dissents. Sognier, J., disqualified.

Deen, Presiding Judge,

dissenting.

I must respectfully dissent. On a motion for summary judgment, the burden is on the movant to establish lack of a genuine issue of fact, and the party opposing the motion is given the benefit of all reasonable doubts that a genuine issue of fact exists, with the benefit of all favorable inferences that may be drawn from the evidence. Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442) (1962). The evidence must be construed most favorably to the party opposing the motion. Hanover Ins. Co. v. Nelson Conveyor &c. Co., 159 Ga. App. 13 (282 SE2d 670) (1981); Vizzini v. Blonder, 165 Ga. App. 840 (303 SE2d 38) (1983).

The evidence showed that Hubert Johnson, president of Johnson Drilling Company (a corporation), testified by deposition that the letter of credit which was issued in favor of the bonding company replaced a $35,000 cash bond which had been previously posted with the State of Tennessee. The letter of credit which was given for the activities of the two mining companies was guaranteed by Johnson Drilling Company, but it was not personally guaranteed. The letter of credit was to be renewed annually. Johnson sent a written request that it be renewed, but the bank failed to renew it. The bank indicated to Johnson and his attorney that it had been renewed, but Johnson subsequently learned from the State of Tennessee that it had not been renewed. When the bank was notified of the problem, Johnson Drilling Company was assured that the bank was taking care of it. When the letter was not renewed in a timely fashion, the mining companies’ leases were cancelled and they were told to vacate the premises. The bonding company then drew on the $40,000 letter of credit. Bank South withdrew this amount from the Johnson Drilling Company account. Johnson protested this action because it was a separate corporation from the mining companies. The bank then agreed to a meeting between Johnson, his attorneys, and bank officials. At the meeting, it was agreed that the bank would replace the money in the Johnson Drilling Company account, and two non-guar anteed notes would be executed by the mining companies in the amounts of $15,000 and $25,000.

Decided February 19, 1988

Rehearing denied March 3, 1988

F. Carter Tate, for appellant.

Johnson further testified that at the meeting the bank admitted that it erred in not properly and timely renewing the letter of credit, that it regretted its error, and that it would therefore take two unsecured notes from the mining companies. The notes show on their faces that they are unsecured, and the bank officer who drafted them admits that the handwritten notation “unsecured” on them is in his handwriting. In return for executing the notes, the bank asked for the companies’ cooperation in recovering any money from the State of Tennessee and that the mining companies would return any money that they recovered. Three days later, the bank again withdrew $40,000 from the Johnson Drilling Company account.

The affidavit of one of Johnson’s attorneys is included in the record. He was present at the meeting with the bank and verifies Johnson’s testimony as to the amount of the notes, that it was agreed that the notes were to be unsecured obligations of the two mining companies, and that there was no request that the plaintiff execute any instrument to pay the notes in the event of default.

Applying the rules to be used by the trial court in ruling upon a motion for summary judgment as they are set forth above, I find that there was a genuine issue of fact requiring jury resolution. A jury could find that appellant’s position as a guarantor was discharged when the bank agreed to return the $40,000 to Johnson Drilling Company’s account after paying the letter of credit in return for the corporation’s continued business and forebearance in taking legal action against it for its admitted error in failing to renew the letter of credit after receiving a written request that it be renewed. Further evidence that a novation occurred is the execution of the two unsecured notes, which were solely the obligation of the mining companies.

Columbia Nitrogen Corp. v. Mason, 171 Ga. App. 685 (320 SE2d 838) (1984) is distinguishable in that the Masons executed a “continuing and unconditional guarantee” in favor of appellant, and the court found that execution of the unsecured notes did not constitute a delay in payment. In the instant case, a jury could find that the previous guarantee was extinguished and a new agreement was reached, which was based in part on the admitted wrongdoing of the bank.

Thomas H. Christopher, Constance C. Russell, for appellee.


author: Banke, Presiding Judge.

text:
    75684.
    DOUSE v. SMITH.
    (366 SE2d 791)
   Banke, Presiding Judge.

The appellant’s vehicle was struck by a vehicle being driven by the appellee as the appellant was attempting to turn left onto a highway from the parking lot of a shopping center. The appellee brought suit against the appellant to recover for the injuries he had sustained in the accident, and the appellant counterclaimed to recover for her injuries. The parties settled the appellee’s claim, but the appellant’s claim proceeded to trial, resulting in the direction of a verdict in favor of the appellee, based on a determination by the trial court that there was no evidence of any negligence on his part. This appeal followed.

The evidence showed that the appellant had already entered the highway and was in the process of making her left turn when she was struck by the appellee on the left-front side of her vehicle. The appellant testified that she had stopped her vehicle at the edge of the shopping center exit and that she had looked both ways before entering the “heavy traffic,” but that she had not seen the appellee’s vehicle prior to the impact. However, a passenger in her car testified that subsequent to the collision the appellant told her she had seen the appellee’s vehicle before it struck her vehicle.

The appellee testified that he had been on the inside lane of the highway and that as he had approached the shopping center driveway the appellant had pulled out directly in front of him, leaving him with no time to avoid the collision. There was no evidence suggesting that the appellee had been exceeding the speed limit. Held:

“ ‘ “It is generally a question for a fact-finding body to determine questions of negligence and whose negligence and what negligence involved is the sole proximate cause of the injury. It is only where the negligent conduct alleged is susceptible of but one inference that it becomes a question of law for the court to determine.” ’ ” Lewis v. Duggan, 184 Ga. App. 563, 565 (362 SE2d 73) (1987). The appellant asserts that the evidence would have supported the inference that the appellee was in violation of OCGA § 40-6-180, which requires operators of motor vehicles to drive at a speed which is “reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing.” However, we can find no evidence in the present case from which it could reasonably be inferred that the collision occurred as the result of negligence on the part of the appellee. Rather, the undisputed evidence indicates that the appellee had the right-of-way and that the appellant simply drove her vehicle directly into his path. We accordingly hold that the trial court did not err in granting the appellee’s motion for a directed verdict.

Decided February 17, 1988

Rehearing denied March 3, 1988

Robert M. Darroch, C. David Vaughan, for appellant.

George A. Haas, Hugh F. Newberry, for appellee.

Judgment affirmed.

Benham, J., concurs. Carley, J., concurs in judgment only.


author: Pope, Judge.

text:
    75686.
    MALLARD v. JENKINS et al.
    (366 SE2d 775)
   Pope, Judge.

Plaintiff initiated this lawsuit against defendants Jenkins and Witchard seeking damages for personal injuries incurred in an automobile collision. Defendants responded in part by asserting that plaintiff had executed a general release of all claims in favor of defendants. See Mallard v. Jenkins, 179 Ga. App. 582 (347 SE2d 339) (1986). Plaintiff amended her complaint to add a claim for punitive damages alleging that the release had been fraudulently obtained. Plaintiff subsequently added Allstate Insurance Company as a party defendant and asserted the wilful and intentional misrepresentations of its agent in procuring plaintiff’s execution of the release. Plaintiff then dismissed her claim for punitive damages against defendants Jenkins and Witchard. The case proceeded to a bifurcated jury trial involving only plaintiff and defendant Allstate, and, following the presentation of plaintiff’s case, the trial court granted Allstate’s motion for partial directed verdict on the issue of Allstate’s liability for “vindictive” damages, finding that such damages are not recoverable by the plaintiff as a matter of law under the circumstances in this case. The jury was unable to reach a verdict on the other issues in the case and a mistrial was declared. We granted plaintiff’s interlocutory appeal from the partial directed verdict in favor of Allstate.

1. The primary issue presented by this appeal is whether OCGA § 51-12-6 is the proper measure of damages with respect to the claim plaintiff has raised against defendant Allstate. Plaintiffs claim charges that “[t]he fraudulent conduct and bad faith shown by Allstate Insurance Co. was intended and in fact has resulted in an interference with plaintiffs legal rights to seek compensation for general and special damages resulting from her injuries, thereby intentionally inflicting upon plaintiff severe mental anxiety and distress for which plaintiff seeks compensation.” This claim for damages under OCGA § 51-12-6 is reiterated in the pretrial order.

The apparent basis for defendant Allstate’s motion for directed verdict is its assertion that OCGA § 51-12-6 is an improper measure of damages due to the fact that it is applicable only where the entire injury is to the plaintiff’s peace, feelings or happiness. Allstate argues that since plaintiff is still claiming that she is entitled to pursue her personal injury case against defendants Jenkins and Witchard, it is clear that the entire injury is not to plaintiff’s peace, feelings and happiness. We do not find this argument compelling.

As noted by Allstate, “damages for injury to peace, happiness and feelings (‘vindictive’ damages; OCGA § 51-12-6) can be recovered only where ‘the entire injury is to the peace, feelings or happiness (and) there is no injury to the person or purse . . . the tort being of such a nature as to give rise to mental pain and suffering only. . . .’ [Cit.]” Brunswick Gas & Fuel Co. v. Parrish, 179 Ga. App. 495 (347 SE2d 240) (1986); see Digsby v. Carroll Baking Co., 76 Ga. App. 656 (3) (47 SE2d 203) (1948). “[T]he code language referring to a tort where ‘the entire injury’ is to peace, happiness and feelings includes a situation where the entire injury claimed is to peace, happiness and feelings, although there may have been other more insignificant injuries in the case.” Brunswick Gas, supra at 498; Stepperson, Inc. v. Long, 256 Ga. 838 (2) (353 SE2d 461) (1987). Plaintiffs sole cause of action in its case against defendant Allstate is for fraudulent misrepresentation. See, e.g., Gibbs v. Jefferson-Pilot &c. Ins. Co., 178 Ga. App. 544 (1) (343 SE2d 758) (1986); Progressive Life Ins. Co. v. James, 62 Ga. App. 387 (8 SE2d 91) (1940). That is, under the allegations of this complaint defendant Allstate owed plaintiff the duty not wilfully and wantonly to interfere with plaintiffs negligence claim against the other defendants. This cause of action is, at best, merely collateral to plaintiff’s negligence action against defendants Jenkins and Witchard, even though all defendants are parties to the lawsuit. The claim against Allstate (fraud) is separate and distinct from that made against the other defendants (negligence), and does not arise out of the same transaction. Likewise, the damages sought by plaintiff against defendant Allstate are separate and distinct from those sought against the other defendants. There is no assertion of joint responsibility and, in fact, the claims were severed for trial. Cf. Hodges v. Youmans, 129 Ga. App. 481 (8) (200 SE2d 157) (1973), where the complaint asserted “a vague welter of tort claims against 23 defendants jointly.” Id. at 487. It is thus apparent that the “entire injury” claimed by plaintiff against defendant Allstate is to peace, happiness and feelings, and, therefore, that damages, if any, are governed by the provisions of OCGA § 51-12-6. Cf. Hall County Mem. Park v. Baker, 145 Ga. App. 296 (3) (243 SE2d 689) (1978), where plaintiff did suffer “a pecuniary loss in wages and medical bills.” Id. at 298. We are aware of no authority supporting the proposition that plaintiff’s consolidation of collateral matters into one lawsuit necessarily precludes recovery of OCGA § 51-12-6 damages where otherwise appropriate. The trial court erred in granting defendant Allstate’s motion for directed verdict.

Decided February 15, 1988

Rehearing denied March 3, 1988

G. Leonard Liggin, for appellant.

Thomas C. James III, for appellees.

2. We are also asked to address the applicability of the Tort Reform Act of 1987, which made substantial changes in OCGA §§ 51-12-5 and 51-12-6 and created new OCGA § 51-12-5.1. Ga. L. 1987, p. 915, §§ 4, 5 and 6. These code sections must be construed together. See Westview Cemetery v. Blanchard, 234 Ga. 540, 543 (216 SE2d 776) (1975). Since the amended OCGA § 51-12-5 and the new § 51-12-5.1 apply only to causes of action arising on or after July 1, 1987, we view the amended § 51-12-6 (which makes express reference to these “reformed” code sections, but no reference to an effective date) to likewise apply only to causes of action arising on or after July 1, 1987. See also OCGA § 1-3-5. Accordingly, OCGA § 51-12-6 as amended by the Tort Reform Act is not applicable to this case.

Judgment reversed.

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


text:
    75724.
    MAG MUTUAL INSURANCE COMPANY v. GATEWOOD et al.
    (367 SE2d 63)
   Pope, Judge.

MAG Mutual Insurance Company appeals from the denial of its motion for summary judgment and the grant of summary judgment to appellee-defendants in a declaratory judgment action seeking a determination of the policy limits of a professional liability policy issued by it insuring the defendant doctors against alleged negligent acts occurring in 1983. MAG Mutual was first notified of the allegations of medical malpractice by the defendant doctors on December 7, 1984. Appellees Larry and Lisa Jackson sued the doctors on October 25, 1985 on behalf of their infant child, who was severely brain damaged at his birth on October 31, 1983. This declaratory judgment action was brought on October 6, 1986, after appellees claimed that the policy, as amended upon renewal in 1984, insured the alleged negligent acts with primary coverage in the amount of $1,000,000, and excess coverage of $100,000 per person and $300,000 total. MAG Mutual contended that the total liability coverage was limited to $100,000/ $300,000, but also argued that if the court should find the plain language of the policy to be otherwise, then it should reform the policy because of a mutual mistake of the parties. MAG Mutual filed various interrogatories and requests for admission from the doctors attempting to elicit evidence of the doctors’ intent as to the limits of the policy. Upon objections on the grounds of irrelevancy, inadmissibility and prejudice MAG Mutual filed motions to compel discovery, which were heard by the court, but no written order was issued thereon.

After hearing arguments and considering all of the evidence submitted, the trial court found that the policy, a copy of which was attached to MAG Mutual’s complaint, was jurisdictive both of the declaratory judgment action and the underlying medical malpractice claim, providing both primary and excess liability coverage. The court further found that although it was a “claims made” policy, it distinguished between claims made based on acts performed before January 1, 1984 and on acts performed after January 1, 1984 in regard to the liability limits. Since the acts upon which the Jacksons’ claim was based occurred before January 1, 1984, but the claim was “made” after that date on December 7, 1984, the question to be determined was whether both the primary and the excess coverage were different depending upon the time the acts were performed, as contended by MAG Mutual; or whether only the excess coverage would be different, as asserted by the defendants. To resolve this question, the trial court looked first to the policy itself.

The “Introduction Page” of this policy set forth the following limits of coverage:

The endorsement page was as follows:

As found by the trial court, the primary coverage is identified on the policy introduction page as “Physicians Professional Liability Claims Made” in the amount of $1,000,000 each person and total limit. The excess coverage is identified on the introduction page as “Professional Excess Liability Endorsement,” showing the limits of coverage as $1,000,000 both for each person and for total limit, but also referring to “Prof. Liab. End. #1,” which endorsement page by its terms expressly pertains to excess liability coverage. The court also noted that the endorsement provided that “all other terms of the policy remain the same,” further denoting that this endorsement was intended to encompass just excess, not primary, coverage. Thus, the court determined that only the excess coverage was restricted to claims based on acts performed after January 1, 1984, but that primary coverage included acts performed prior to that time. The trial court based its conclusions on the clear and unambiguous language of the contract, as well as on the deposition testimony of Joseph W. Tasker, Jr., the vice president of MAG Mutual who was in charge of underwriting at the time the policy in dispute was issued and whose signature appears thereon. According to Tasker, before issuing this policy at least three members of the underwriting staff of MAG Mutual reviewed the contract to make sure it clearly expressed the intention of MAG Mutual, and in their opinion the policy was “absolutely not” unclear. Tasker testified that he would certainly expect both the insured and the insurance company to be bound by the liability limits as expressed in the policy.

In regard to MAG Mutual’s reformation argument, the court found that because the policy was clear and unambiguous there were no grounds for such relief. It further observed that four days after the Jacksons’ claim was “made” on December 7, 1984, MAG Mutual changed the policy for renewal in 1985 to provide that both the primary coverage and the excess coverage would be different depending on whether the act was performed before or after January 1, 1984. The court concluded that by making this change to provide the limited coverage in 1985 which it contended was already in effect in 1984, MAG Mutual had admitted that the intended coverage was different on the date the claim was made, thereby resolving any ambiguity in the 1984 policy.

1. On appeal MAG Mutual complains that nowhere in the policy is it stated that the provisions of the endorsement pertain only to the excess liability coverage and not to the underlying liability coverage; and that to the extent there is any ambiguity in the language of the the policy, OCGA § 13-2-3 makes the cardinal rule of construction to ascertain the intention of the parties. Thus, it contends summary judgment was not authorized.

Appellant’s arguments are correct up to a point, but ignore other principles of law which we think are controlling here. “ ‘The cardinal rule in the construction of contracts is to ascertain the intention of the parties.’ [Cit.] ‘The language which the parties have used will be looked to for the purpose of finding that intention, which when it is once ascertained will prevail over all other considerations, in determining the nature of the agreement.’ [Cits.] The question remaining is whether [the language] of the contract creates an ambiguity which may be explained by parol. A word or phrase is ambiguous ‘when it is of uncertain meaning and may be fairly understood in more ways than one.’ [Cit.] Language which is unambiguous will not be construed as ambiguous based on extrinsic circumstances. [Cit.]” (Indention omitted.) Walton v. Datry, 185 Ga. App. 88, 93-94 (363 SE2d 295) (1987).

Where the language of a contract is plain and unambiguous, no construction is required or permissible and the terms of the contract must be given an interpretation of ordinary significance. Jones v. Barnes, 170 Ga. App. 762, 765 (318 SE2d 164) (1984). Accord Heyman v. Fin. Prop. Developers, 175 Ga. App. 146 (332 SE2d 893) (1985). “In order to be entitled to summary judgment, the insurer in [a] declaratory judgment action must show that as a matter of law, the facts established show that it is entitled to judgment. [Cits.] The opposing party must be given the benefit of all reasonable doubts and all favorable inferences. [Cit.] Thus, the question is whether the facts displayed at this juncture establish as a matter of law that the claimant[s] cannot recover on the policy. . . .” Reynolds v. Transport Ins. Co., 178 Ga. App. 462 (343 SE2d 502) (1986).

“Insurance is a matter of contract and it is contract law rather than the underlying motives of the contracting parties that is ultimately controlling. [Cit.]” Nat. Security Fire &c. Co. v. London, 180 Ga. App. 198, 200 (348 SE2d 580) (1986). “The existence or non-existence of an ambiguity is itself a question of law for the court. [Cit.] If the court determines that there is an ambiguity, this does not automatically give rise to a jury question, however. [Cit.] At this point it becomes the duty of the court to attempt to resolve the ambiguity by applying the rules of construction set forth in OCGA § 13-2-2. [Cits.] It is only when the ambiguity remains after the statutory rules have been applied that the issue becomes one for the jury. [Cits.] . . . Moreover, in applying [these rules], we have consistently held that an insurance contract is to be strictly construed against the insurer and in favor of the insured. [Cits.] Our courts have further held that the insurer, having affirmatively expressed coverage in broad promissory terms, has a duty to define any limitations or exclusions clearly and explicitly. [Cit.]” (Indention omitted.) Capital Ford Truck Sales v. U. S. Fire Ins. Co., 180 Ga. App. 413, 417-418 (349 SE2d 201) (1986). “In construing an insurance contract the test is not what the insurer intended its words to mean, but rather what a reasonable person in the insured’s position would understand them to mean. Where such a provision is susceptible of two or more interpretations, the court will construe it most favorably] to the insured. [Cit.]” Gulf Ins. Co. v. Mathis, 183 Ga. App. 323, 324-325 (358 SE2d 850) (1987). See generally Travelers Ins. Co. v. Blakey, 255 Ga. 699 (342 SE2d 308) (1986).

Given its ordinary significance, the language on the introduction page of the 1984 policy clearly expresses the coverage provided, as the trial court correctly found. The limit of $1,000,000 for each person listed under the heading “Physicians Professional Liability Claims Made” contains no reference to or incorporation of any qualifying endorsements, nor is there a cut-off date for retroactive application. No restrictions or modifications of that coverage are claimed by MAG Mutual to appear anywhere else in the policy. Only in the endorsement, which refers in its opening sentence to “claims which are in excess of your primary professional liability limits,” is it stated that this coverage insures acts performed after January 1, 1984. While MAG Mutual insists that this limiting language applies to both the primary and excess liability coverage, its vice president in charge of issuing the policy testified that he understood the introduction page to refer to primary coverage, and that the first sentence of the endorsement pertains to excess coverage, limited by the next sentence to $100,000/$300,000 retroactive to January 1, 1984. If the endorsement restriction was intended to apply to both primary and excess coverage, it should have recited this fact, rather than expressly stating that all other terms of the policy remained the same. As written it did not do so until the policy was amended and renewed in 1985, and such provisions require a narrow construction. Alley v. Great American Ins. Co., 160 Ga. App. 597, 600 (287 SE2d 613) (1981).

Therefore, the trial court properly ruled that the 1984 contract language clearly and unambiguously afforded primary coverage in the amount of $1,000,000 during the time appellees’ claim arose, i.e., when the alleged negligent acts were performed in 1983, and no further application of the rules of construction was necessary. The reference in the last sentence of the endorsement to payment of “$2,000,000 each person/$2,000,000 total limit for claims brought against the insured for acts performed from 1/1/84 to the expiration of this policy,” assuming that it raises any ambiguity, is also concerned only with coverage after January 1, 1984, and thus is not relevant to the claim in the instant case.

2. MAG Mutual’s argument that in all cases where the form of the contract does not clearly express the intention of the parties the court is required to intervene in equity to reflect the true intention of the parties cannot be sustained. “ ‘A mistake relievable in equity is some unintentional act, omission, or error arising from ignorance, surprise, imposition, or misplaced confidence.’ OCGA § 23-2-21. Where reformation is sought on the ground of mutual mistake, it must, of course, be proved to be the mistake of both parties. [Cit.] We have examined the record in this case and find no evidence of mutual mistake. ‘(E)quity will reform a written instrument for the unilateral mistake of one party accompanied by fraud or inequitable conduct on behalf of the other party.’ [Cit.] There is likewise no evidence of fraud or inequitable conduct in the record before us.” A. J. Concrete Pumping v. Richard O’Brien Equip. Sales, 256 Ga. 795, 796 (353 SE2d 496) (1987). “As far as the evidence shows, the [policy] was drafted at the direction of only one of the contracting parties, the [insurer], and therefore if it was a mistake, it was a unilateral mistake, which will not warrant reformation. [Cit.]” Cox v. Smith, 244 Ga. 280, 283 (260 SE2d 310) (1979). The 1984 insurance policy was written and closely reviewed by MAG Mutual’s underwriting staff before it was signed and delivered to the defendant doctors, and the failure to discover any alleged uncertainties or ambiguities prior to delivery precludes any equitable reformation.

Decided February 15, 1988

Rehearing denied March 3, 1988

Thomas S. Carlock, Johannes S. Kingma, for appellant.

Michael A. Fennessy, N. Karen Deming, James E. Butler, Jr., James W. Hurt, William U. Norwood, Robert L. Pennington, for appellees.

3. MAG Mutual’s enumeration of error concerning the trial court’s denial of its motion to compel discovery contends that these interrogatories and requests for admissions were essential to prove ambiguities in the policy language and to support its reformation claim by showing the intent and understanding of the parties. In view of the trial court’s rulings, and our affirmance of them, this discovery was neither relevant nor reasonably calculated to lead to the acquisition of any admissible evidence. Although the permissible scope of discovery is very broad under OCGA § 9-11-26 (b) (1), we find no abuse of discretion here in denying MAG Mutual’s motion to compel. Accord Reece v. Selmonosky, 179 Ga. App. 718 (2) (347 SE2d 649) (1986).

Judgment affirmed.

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


text:
    75767.
    ALLISON v. KELLER INDUSTRIES, INC.
    (367 SE2d 70)
   Sognier, Judge.

David Allison sued Keller Industries, Inc., for damages he sustained when a ladder manufactured by Keller allegedly collapsed beneath him. The suit was brought on the theories of strict liability and common law negligence. The jury returned a verdict in favor of Keller and Allison appeals from the judgment thereon.

1. Appellant enumerates as error three instructions given the jury by the trial court, asserting that the charges excluded appellant’s theory of strict liability. The first charge consisted of the instruction, “if you find from the evidence that the defendant [appellee] was not negligent, then it would be your duty to return a verdict in the defendant’s favor, even though the precise cause of the occurrence remains a matter of speculation.” The second charge provided that “in order to recover damages, the plaintiff [appellant] must show by a legal preponderance of the evidence that the loss complained of was proximately caused by the negligence of the defendant.” The final charge enumerated as error set forth the proposition that “if you find that the plaintiff and the defendant were both at fault, the plaintiff may recover only if you believe from the evidence that the plaintiff and the defendant were not equally at fault, but that a greater degree of fault is attributable to the defendant than to the plaintiff.”

Appellant does not contend these charges are incorrect statements of the law of negligence. Rather, he asserts that giving these correct charges on negligence may have confused the jury, causing them to apply negligence principles not applicable to his strict liability theory of recovery, thereby resulting in the jury’s verdict in favor of appellee.

Since two theories of law were proposed in support of appellant’s cause of action, the trial court did not err by giving separate instructions thereon. See Goober v. Nix, 128 Ga. App. 578, 580 (4) (197 SE2d 486) (1973). And, having undertaken to charge the law on these two particular subjects, the trial court was obligated to charge all that was material and applicable. See Fisher v. Temple, 109 Ga. App. 859, 862 (2) (137 SE2d 545) (1964). In Southern R. Co. v. Lee, 59 Ga. App. 316 (200 SE 569) (1938), this court addressed the railroad company’s enumerations that the order in which certain charges were given by the trial court were calculated to mislead the jury into allowing the plaintiff to recover at least reduced amounts. We noted that the propositions of law were not given in connection with each other, but were given separately. “Each is a separate and distinct proposition of law, and neither one modifies or qualifies the other.” Id. at 317 (3). The transcript of the charge in this appeal reveals even less grounds for complaint than in Southern Railway, supra, since the trial court here separated the charges on “defects” (i.e., strict liability) from the portion of the charge on negligence both in the general charges and in the later portion of the charge involving damages. While it may be a better practice to elucidate clearly for the jury that more than one theory of recovery is involved and to caution the jury not to apply the standards applicable only to one theory to a second or other theory, the standard remains that all that is required is a charge sufficiently clear to be understood by jurors of ordinary capacity and understanding. See Green v. Trevena, 142 Ga. App. 621, 622 (236 SE2d 775) (1977). We cannot agree with appellant that the charge as a whole given by the trial court could have confused a jury of ordinary capacity and understanding and thus no reversible error is presented.

2. Appellant contends he was denied a thorough and sifting cross-examination of appellee’s expert witness, Richard Verhalen, by the trial court’s refusal to allow appellant’s counsel to refer to the case names of previous cases in which Verhalen had testified on behalf of appellee. Counsel instead was restricted to identifying these cases by the use of dates, locations and courts. Appellant argues that because Verhalen indicated on direct examination that he and his firm conducted accurate analyses of the products submitted regardless of which party requested the testing, and that Verhalen stated he had testified on behalf of both plaintiffs and defendants, appellant’s counsel was entitled to cross-examine the witness as to his impartiality.

Decided February 19, 1988

Rehearing denied March 3, 1988

Randolph A. Mayer, for appellant.

Samuel P. Pierce, Jr., for appellee.

However, the record reveals that the sole thrust of the questions asked Verhalen on cross-examination in which the “nameless” cases were involved was directed towards establishing the number of times Verhalen had testified on appellee’s behalf. Unlike counsel in Harrison v. Regents of Univ. System, 99 Ga. App. 762 (109 SE2d 854) (1959), cited by appellant, there was no indication by appellant’s counsel that Verhalen would be questioned as to evidence that Verhalen had rarely, if ever, testified on behalf of plaintiffs or that Verhalen had misrepresented himself and his firm when he stated that he “testified] for the product.” Rather, the record reflects that despite the restriction on the use of case names, appellant successfully elicited the testimony desired, namely, that Verhalen had indeed testified on behalf of appellee on numerous occasions.

Thus, appellant has not demonstrated how the trial court’s denial of counsel’s request to identify previous cases by the names of the parties prevented appellant from cross-examining Verhalen as to his impartiality or lack thereof. “The trial court has a discretion to control the right of cross-examination within reasonable grounds, and the exercise of this discretion will not be controlled unless abused. [Cit.]” Pope v. Firestone Tire &c. Co., 150 Ga. App. 396, 399 (3) (258 SE2d 14) (1979). See also Hightower v. McIntyre, 170 Ga. App. 269, 270 (2) (316 SE2d 849) (1984). We find no abuse here.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


author: Birdsong, Chief Judge.

text:
    75855.
    MORRIS v. BROOKS et al.
    (366 SE2d 777)
   Birdsong, Chief Judge.

This court granted the application of appellant’s interlocutory appeal to consider the trial court’s denial of his motion for partial summary judgment. Brian Morris is the 11-year-old son of David and Donnice Morris. The parents were divorced in June 1984, with custody of Brian being awarded, by consent, to Donnice. David provided $350 per month child support and any expenses over and above that were divided between them. Donnice married James Clark in October 1984. On March 2,1986, when the family was returning from a visit to Clark’s mother in south Georgia, their car was involved in a collision with another car driven by defendant Brooks. Clark admitted he was speeding at the time. Brooks was driving on the wrong side of the road. Donnice was killed and Brian was severely injured. Brian was initially treated in a hospital in Albany, Georgia. He remained there for approximately six weeks and David Morris accepted liability for the costs of such hospitalization. When Brian left the Albany hospital, he moved in with his father. Further surgery and treatment requiring hospitalization in Scottish Rite Hospital was paid for by the father. Since March 2, 1986, Brian has lived with his father and all support and medical expenses have been paid by his father. There has been no custody, financial support, or parental relationship between Brian and his stepfather since March 2, 1986.

Brian’s father instituted this action, as next friend, against Brooks and Clark. Clark defended, inter alia, on the basis of “parent/ child immunity.” Morris filed a motion to strike this defense and it was denied. We granted interlocutory appeal to review this issue. Held:

Clark contends he stands in loco parentis to Brian. Hence, he claims this action is barred on the basis of intrafamilial immunity. Clark is correct in asserting that upon a remarriage, if a mother with a minor child from a previous marriage shares his custody and control with the stepfather, the stepfather stands in loco parentis to the child. Lee v. Green, 217 Ga. 860 (1) (126 SE2d 417). Further, this court has consistently held that preservation of family tranquility is paramount public policy and prevents an unemancipated child from suing a parent or a person standing in loco parentis. Trotter v. Ashbaugh, 156 Ga. App. 130, 132 (274 SE2d 127); Eschen v. Roney, 127 Ga. App. 719, 720-721 (194 SE2d 589); Chastain v. Chastain, 50 Ga. App. 241 (1) (177 SE 828).

However, the Supreme Court, in Nelson v. Spalding County, 249 Ga. 334, 337-338 (290 SE2d 915) and Robeson v. Intl. Indem. Co., 248 Ga. 306 (1) (282 SE2d 896), and this court, in Clabough v. Rachwal, 176 Ga. App. 212, 214 (335 SE2d 648), held that we “did not find controlling the status of the ‘relationship’ at the time the cause of action accrued, but rather looked to the status of the relationship at the filing of suit and thereafter.” The reasoning behind these opinions is the basis for finding a parent immune from suit by an unemancipated child: (1) disturbance of domestic tranquility, (2) depletion of family resources, (3) danger of fraud and collusion, (4) possibility of inheritance by the parent of the amount awarded to the child, and (5) interference with parental care, discipline and control. Eschen, supra at 724. Hence, where there is a change of status in the relationship between the parties in the interval between the tortious act and the filing of the action, the time of filing governs. The object of preserving family harmony does not control where there is no family status at the time of filing of the action. See Harris v. Harris, 252 Ga. 387, 388 (313 SE2d 88). Here, although there was a status of loco parentis at the time of the alleged tortious act, Brian resumed a familial relationship with his natural father after the accident and at the time this action was filed, there existed no parental relationship between Brian and Clark. The trial court erred in denying appellant’s motion to strike appellee’s defense of “parent/child immunity.”

Decided February 15, 1988

Rehearing denied March 3, 1988

Walter H. Beckham III, Mark S. Izenson, for appellant.

Thomas D. Harper, Richard G. Greer, Jeffrey F. Leasendale, for appellees.

Judgment reversed.

Banke, P. J., concurs. Beasley, J., concurs in judgment only.


author: McMurray, Presiding Judge.

text:
    74224.
    JONES v. THE STATE.
    (367 SE2d 886)
    Decided March 3, 1988.

      Philip L. Ruppert, for appellant.

      Johnnie L. Caldwell, Jr., District Attorney, J. David Fowler, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

The Supreme Court, in Jones v. State, 257 Ga. 753 (363 SE2d 529), having reversed the decision of this court in Jones v. State, 184 Ga. App. 37 (360 SE2d 622), the prior judgment of this court is vacated, and, in accordance with the decision of the Supreme Court, the judgment of the trial court is reversed.

Judgment reversed.

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


text:
    75125.
    GOLDSBY v. THE STATE.
    (367 SE2d 84)
   McMurray, Presiding Judge.

Defendant was indicted for possession of cocaine with intent to distribute and possession of marijuana, in violation of the Georgia Controlled Substances Act. The evidence adduced at trial was as follows:

At about 1:30 p.m. on August 8, 1986, Special Agent Thomas Hill Davis, Jr. of the Georgia Bureau of Investigation interviewed a confidential informant who advised him that defendant, who is from Ft. Lauderdale, Florida, “was coming to . . . and had been in Claxton[, Georgia] for a couple of days and . . . had with him a quantity of rock cocaine that he was going to distribute in this area.” The informant also told Agent Davis that defendant was driving a “bluish-gray” Oldsmobile Cutlass, “that a black female named . . . Ivory Hill and a black male named Charles Harrington would ... be accompanying [defendant],” and that defendant “would either be staying with a black female known as Jackie Elaine Daniels or that [defendant] would be staying at one of the local motels.” This informant had not previously provided information to Agent Davis; consequently, he sought to verify the tip through another police informant, who “had been used by [law enforcement officers] on several occasions to help catch some of the local drug dealers.” At 2:30 that afternoon the second informant advised Agent Davis “that he had recently, within a few hours, talked with a fellow by the name of Ronnie Roberts . . . [who said] that [defendant] was in town and [Ronnie Roberts] showed this informant some rock cocaine . . . and he [Ronnie Roberts] told [the second informant] that he got [the rock cocaine] from [defendant].”

From the information provided by the first informant, a local law enforcement officer discovered that “Ivory Hill from Ft. Lauderdale[, Florida] was registered at the Miami Motel [in Claxton, Georgia] in Room 31.” A “ride-by surveillance or a spot check” of this room was conducted “on [an] every-fifteen-minute basis” and, at about 4:00 that afternoon, a vehicle matching the description given by the first informant was observed parked in front of the motel room. Shortly thereafter, the vehicle was observed “leaving the Miami Motel traveling south on U. S. 301.” The vehicle was stopped by law enforcement officers about 200 to 250 yards from the motel and the passengers, who included “[defendant] of Ft. Lauderdale, Florida, Ivory Hill of Ft. Lauderdale, Florida, Charles Harrington of Ft. Lauderdale, Florida; and [T. B., a minor], of Claxton, Georgia,” were arrested and “patted down” for weapons. None were found. A search of the motel room revealed no weapons or contraband. Defendant and his companions were transported to the Evans County Sheriffs office where a “strip-search” of the suspects revealed no contraband. However, after the suspects were searched, “a small piece” of rock cocaine was discovered falling to the floor from the area where defendant was seated and, after a struggle with defendant, officers discovered several pieces of rock cocaine concealed in defendant’s mouth. Defendant was taken to the hospital for medical treatment since it was thought defendant might have swallowed “a lethal dose of cocaine.” He was released from the hospital that evening. Three days later, on August 11, 1986, defendant made the following statement to Special Agent John B. Edwards of the Georgia Bureau of Investigation:

“ T first came up to Georgia last year. I saw how much money I could make. You can make double your money selling rock in Georgia. My uncle, Leandre (phonetic) Williams, got me started in the cocaine business. I found that the people that sell drugs have all the money. I worked real hard, but I just couldn’t save money. Something would always come up. So I got in the cocaine business. People would want to get to know me. The drug business is like that. The first time I came to Georgia on my own to deal my own cocaine was about five months ago. Me and Angelo Smith and Willie Shannon came up in a rental car. We bought — brought about an ounce and a half of coke. We had it all in rocks. We sold them around Claxton. Claxton’s got a lot of users of rock. The second time I came up, Angelo and Shannon came up with me. I didn’t know coke was in the car. This was the time Angelo got busted with the powder. About two or three weeks after that, I came up and brought 40 rocks. I came up again Friday[, August 8, 1986,] and brought 140 or 160 rocks. When I saw the police behind me, I put 60 rocks in my mouth. And that’s all I remember. I had fronted Ronnie Roberts ... 40 rocks. I fronted Alexander — last name unknown — some. I came up other times also but didn’t bring cocaine. This is my statement of the truth as I know it, given freely and voluntarily to Special Agent Edwards. I have read all three pages.’ ”

A thorough search of defendant’s vehicle revealed several marijuana seeds and a “small amount” of powdered cocaine on the “floorboard” of the back seat.

After the close of evidence, defendant’s motion for directed verdict of acquittal was denied, the case was submitted to the jury and defendant was found guilty on both counts of the indictment. This appeal followed. Held:

1. Defendant first contends the trial court erred in admitting into evidence contraband seized pursuant to the warrantless arrest and search of his automobile. “Under Georgia law, an officer may arrest without a warrant ‘if the offense is committed in his presence or within his immediate knowledge ... or for other cause if there is likely to be failure of justice for want of a judicial officer to issue a warrant.’ OCGA § 17-4-20 (a). The constitutional validity of an arrest without a warrant depends ‘upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense.’ Beck v. Ohio, 379 U. S. 89, 91 (85 SC 223, 13 LE2d 142) (1964).” Stola v. State, 182 Ga. App. 502, 503 (1) (356 SE2d 222). In the case sub judice, defendant argues that there was no probable cause for his arrest because the first informant “had not provided information in the past [and] the information received from the first informant did not set forth sufficient facts from which a magistrate could independently determine the reliability of the information.”

“The sufficiency of information obtained from an informant is not to be judged by any rigid test. Generally, probable cause is determined by the ‘totality of the circumstances’ surrounding (1) the basis of the informant’s knowledge and (2) the informant’s veracity or reliability. Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983). ‘(A) deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.’ Id. at 233.” McKinney v. State, 184 Ga. App. 607, 608 (1), 609 (362 SE2d 65). In the case sub judice, deficiencies in the basis of the first informant’s knowledge and his veracity and reliability were reinforced by corroborating information provided by the second police informant, who had given police officers reliable information in the past, and by the details of the tip, which were corroborated by the personal observations of the investigating police officers shortly before defendant’s arrest; i.e., that defendant would be driving a “bluish-gray” Oldsmobile Cutlass, “that a black female named . . . Ivory Hill [from Ft. Lauderdale, Florida] would . . . be accompanying [defendant],” and that defendant would be staying at “one of the local motels.”

Moreover, other evidence adduced at the motion to suppress hearing showed that local law enforcement officers had information prior to defendant’s arrest linking him to illegal drug activities in the area. More specifically, Agent Davis testified at the motion to suppress hearing that “earlier ... in the year,” defendant had telephonically contacted local police authorities and claimed $2,000 in cash and an automobile that had been seized pursuant to an arrest where the suspect was charged with possession of cocaine. Cocaine residue was found on the money, the vehicle had been rented by defendant and a credit card bearing defendant’s name was discovered along with the $2,000 in the vehicle.

Standing alone, each of the above facts is insufficient to establish probable cause for defendant’s arrest. However, considering the facts cumulatively and considering the time at which the investigating police officers observed circumstances which corroborated the first informant’s tip, it was unnecessary for the police officers to obtain a warrant for defendant’s arrest as probable cause existed “ ‘to warrant a prudent man in believing that the [occupants of the ‘bluish-gray’ Oldsmobile Cutlass] had committed or [were] committing an offense.’ [Cit.]” Stola v. State, 182 Ga. App. 502, 503 (1), supra.

“ ‘In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ Brinegar v. United States, 338 U. S. 160, 175 (69 SC 1302, 93 LE 1879) (1949). Under the ‘totality of circumstances’ test of Illinois v. Gates, supra, we find that the police [in the case sub judice] had probable cause on which to make the arrest. See State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984). The warrantless search of [defendant’s] automobile as an incident to lawful arrest is controlled by New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981). Therefore, admission into evidence of the [contraband] found as the result of the search of the automobile was not error. Also, we find no error in the admission into evidence of the cocaine found [concealed in defendant’s mouth and in the area where defendant was seated while he was in police custody] . . .” Stola v. State, 182 Ga. App. 502, 503 (1), 504, supra. This enumeration of error is without merit.

2. Defendant, in his second enumeration of error, urges that the trial court erred in admitting hearsay testimony of Agent Davis regarding the information received from the “two unnamed informants. ...”

“OCGA § 24-3-2 (Code Ann. § 38-302) provides for an exception to the hearsay rule during the course of a legal investigation for ‘information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives.’ This rule applies to information received from confidential informants. Bennett v. State, 153 Ga. App. 21 (264 SE2d 516) (1980); Burrell v. State, 140 Ga. App. 900 (232 SE2d 172) (1977).” Rogers v. State, 167 Ga. App. 770, 771 (307 SE2d 685). In the case sub judice, Agent Davis’ testimony concerning the specific statements made to him by the confidential informants was properly admitted to explain the police surveillance of Room 31 at the Miami Motel, the surveillance of the “bluish-gray” Oldsmobile Cutlass and the stop of the automobile in which defendant was riding. Accordingly, this enumeration of error is without merit. See Spaulding v. State, 169 Ga. App. 836 (1) (315 SE2d 48).

3. In his final enumeration of error, defendant contends that his confession, uncorroborated by other evidence, was insufficient to support his conviction for possession of cocaine with intent to distribute.

Decided March 3, 1988.

Laura A. Marcantonio, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Assistant District Attorney, for appellee.

“ ‘A confession of guilt, freely and voluntarily made by the accused, is direct evidence of the highest character and sufficient to authorize a conviction when corroborated by proof of the corpus delicti. Davis v. State, 211 Ga. 76 (3) (84 SE2d 46); Gilder v. State, 219 Ga. 495 (2) (133 SE2d 861); Thompkins v. State, 222 Ga. 420 (1) (151 SE2d 153).’ Lowe v. State, 225 Ga. 56 (165 SE2d 861).” Fields v. State, 232 Ga. 723 (2) (208 SE2d 822). In the case sub judice, not only did the circumstances surrounding defendant’s arrest corroborate details of his confession but Special Agent John B. Edwards of the Georgia Bureau of Investigation testified at trial that rock cocaine found in defendant’s mouth and in the area where defendant was seated while he was in police custody could be sold individually and that the larger pieces would sell in Evans County, Georgia for “$60-$80” and the smaller pieces would sell for “$20-$10.” This was sufficient to corroborate defendant’s confession and satisfy the standard of proof required under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). This enumeration of error is without merit.

Judgment affirmed.

Beasley, J., concurs in Divisions 1 and 3 and in the judgment. Sognier, J., concurs in the judgment only.


author: Carley, Judge.

text:
    75174.
    MURRAY v. ROZIER.
    (367 SE2d 886)
    Decided March 3, 1988.

      Francis Houston, Phillip N. Golub, for appellant.
   Carley, Judge.

Appellant-defendant has filed this direct appeal from the grant of appellee-plaintiff’s motion for new trial. The grant of a motion for new trial is not a final order from which a direct appeal may be taken. See Cotton States Mut. Ins. Co. v. Bishop, 170 Ga. App. 9 (316 SE2d 167) (1984); Days Inn of America v. Sharkey, 178 Ga. App. 718 (344 SE2d 518) (1986). Since appellant did not comply with the interlocutory appeal provisions of OCGA § 5-6-34 (b), this appeal must be dismissed for lack of jurisdiction.

Appeal dismissed.

Banke, P. J., and Benham, J., concur.

Ronald B. Thomas, W. Vincent Settle III, for appellee.


text:
    75525.
    BUSINESS RESOURCES, INC. et al. v. GENERAL AMUSEMENTS, INC. et al.
    (366 SE2d 819)
   Carley, Judge.

Appellant-defendant Business Resources, Inc. (BRI) entered into contracts whereby it agreed to undertake the placement and the management of video games which were owned by appellee-plaintiffs. Subsequently, appellant BRI purported to assign to another its rights under the contracts with appellees. Thereafter, when they ceased receiving payments under the contracts from either appellant BRI or its purported assignee, appellees filed this tort action, seeking damages under three theories: fraud in the procurement of the contracts; conversion; and, negligence. As against appellant BRI and its two agents, William Dashiell and appellant-defendant Carol Speer, the case was submitted to the jury on all three theories. The jury returned a general verdict which awarded damages, punitive damages, and attorney’s fees in favor of appellees and against all three defendants. Appellants BRI and Speer appeal from the judgments entered by the trial court on the jury’s verdict.

1. Appellants assert that the trial court erroneously permitted “the case to go to the jury without ruling as a matter of contractual construction that appellant, [BRI], had a right to assign these contracts for lease of video games.” This enumeration is based upon one of several “motions for partial directed verdict” which appellants made at the close of appellees’ evidence.

This was a tort case and, as such, it never involved any dispute as to the construction of the underlying contracts. The record shows that the trial court repeatedly held, throughout the trial, that the assignment clause was completely clear and unambiguous, and it consistently refused to permit appellees to present any evidence indicating an arrangement contrary to that provision of the contracts. Accordingly, the trial court, in its charge, correctly refrained from submitting the issue of contractual construction to the jury. It necessarily follows that, if appellants were ultimately entitled to the grant of their motion for a directed verdict, it would certainly not be as the result of the construction of any provision in the contracts. Appellants would be entitled to a directed verdict only if appellees had not met their evidentiary burden of proof as to the necessary elements of their cause of action in tort against appellants. Accordingly, the trial court did not err in holding, in effect, that, as to the issue of contractual construction, appellants’ motion for a partial directed verdict was irrelevant and that the general grounds of appellees’ recovery in tort was the only relevant inquiry.

Our own review of the general grounds would likewise be limited to appellees’ recovery in tort and that review would be further limited by appellants’ enumerations of error. Of appellants’ enumerations of error, only one raises the general grounds of appellees’ recovery in tort. That enumeration addresses only the fraud count and, as to the several elements of actionable fraud, appellants urge only the lack of sufficient evidence of appellees’ reasonable reliance upon the allegedly fraudulent representations which were made to them.

“ ‘Misrepresentations are not actionable unless the hearer was justified in relying on them in the exercise of common prudence and diligence.’ [Cits.] ‘Where the basis upon which the contract was entered upon lies in the existence or nonexistence of certain material facts, the verity of which needs must be ascertained from the statement of one acquainted with such facts, each of the contracting parties has a right to rely upon the truth of the other’s statements with reference thereto, when such statements relate to matters apparently within the knowledge of the party asserting them; and to do this without checking up the statements with the declarations of other and different persons, in order, by such an investigation, to test their probable truth. [Cits.]’ [Cits.] ‘We are not aware of any rule of law, or decision of any court, that goes to the extent of saying that one who has been imposed upon by a deceitful and false statement can have no relief unless, before acting upon such a statement, he had exhausted all means at his command to ascertain its truth. . . .’ [Cits.] ‘The right to rely on representations is generally conceded where the hearer lacks equal facilities for ascertaining the truth, as where the facts are peculiarly within the knowledge of the speaker and are difficult for the hearer to ascertain, . . . where the employment of an expert would be required, or where from the circumstances attending the transaction the hearer is compelled to rely on the speaker’s statements. ... To come within this rule it is not, however, necessary that the fact misrepresented should have been exclusively within the speaker’s knowledge.’ [Cit.] ‘Ordinarily the question whether the complaining party could have ascertained the falsity of the representations by proper diligence is for determination by the jury.’ [Cits.]” Daugert v. Holland Furnace Co., 107 Ga. App. 566, 569-570 (130 SE2d 763) (1963). See also Macon Chrysler-Plymouth v. Sentell, 179 Ga. App. 754 (1) (347 SE2d 639) (1986); Georgia-Car. Brick &c. Co. v. Brown, 153 Ga. App. 747 (1) (266 SE2d 531) (1980).

At trial, appellees offered evidence which was sufficient to render the question of the reasonableness of their reliance upon the alleged misrepresentations a matter for the jury to determine. See Daugert v. Holland Furnace Co., supra. Accordingly, this enumeration of error is without merit.

Decided March 3, 1988.

Noel H. Benedict, for appellants.

Robert P. Wilson, Gary C. Harris, for appellees.

2. Appellants enumerate as error the trial court’s refusal to permit the impeachment of a witness through presentation of evidence of his prior criminal convictions and guilty pleas. However, the record shows that the evidence which appellants proffered in this regard was in the form of statements made by the witness himself during his deposition. “While a witness may be impeached by competent proof of conviction of a crime involving moral turpitude [cit.] this competent proof is the record of the witness’ conviction or plea of guilty. It is not competent to prove by the witness that he entered a plea of guilty. [Cit.]” Cross v. State, 136 Ga. App. 400, 405 (6) (221 SE2d 615) (1975). “ ‘A witness cannot be discredited even by his own testimony that he has been convicted of an offense involving moral turpitude; it is necessary to introduce an authenticated copy of the record of the court in which he was convicted.’ [Cit.]” Clarke v. State, 239 Ga. 42, 44 (3) (235 SE2d 524) (1977). Inasmuch as appellants never proffered an authenticated or certified copy of the witness’ convictions or guilty pleas, this enumeration is without merit.

3. Appellants enumerate as error the trial court’s allowing “the case to go to the jury as to the appellees’ claim for lost profits, both appellees having failed to present sufficient evidence as to a claim for lost income to create a jury issue.”

Contrary to appellants’ assertions, the record does not show that a motion for a directed verdict as to the nonrecoverability of lost profits was ever made. What the record does show is that the case was submitted to the jury without the trial court ever giving a charge on the recoverability of lost profits as an element of damages. Accordingly, this enumeration of error presents nothing for review.

4. Remaining enumerations of error, not otherwise specifically addressed, have been considered and found to be without merit.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    75570.
    BARNES v. CITY OF ATLANTA et al.
    (366 SE2d 822)
   Carley, Judge.

At the times relevant to this appeal, appellant-plaintiff was employed as a policeman by the appellee-defendant City of Atlanta (City). During a period when appellant was on disciplinary suspension from active duty as a policeman, he was found to be ineligible for promotion to captain. Thereafter, appellant’s administrative appeal resulted in the revocation of his disciplinary suspension. On certiorari, the superior court affirmed the administrative determination to revoke appellant’s suspension. The City did not appeal.

Although appellant had succeeded in having his suspension revoked, he was not thereafter promoted to police captain. He then filed a complaint which named the City and others as defendants. Appellant’s complaint sought, among other relief, the issuance of a writ of mandamus ordering his promotion to captain. The trial court denied appellant’s petition for mandamus on the merits. Appellant did not appeal.

Appellant did, however, subsequently file the complaint which initiated the present action. Appellant’s complaint named as the defendants the City and appellee George Napper, in his capacity as the City’s Commissioner of Public Safety (Commissioner). Relying upon 42 USCA § 1983, appellant set forth claims based upon appellees’ failure to promote him to police captain and upon appellees’ alleged harassment of him. Appellees answered and raised, among their other, defenses, res judicata and governmental immunity. Appellees subsequently moved for summary judgment. As to appellant’s promotion claim, the trial court granted appellees’ motion based upon their res judicata defense. As to appellant’s harassment claim, the trial court granted appellees’ motion based upon their governmental immunity defense. Appellant appeals from the grant of appellees’ motions for summary judgment.

1. As to his promotion claim, appellant enumerates as error the trial court’s grant of summary judgment to appellees on their res judicata defense.

OCGA § 9-12-40 provides that “[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” “ ‘In order for the doctrine of res judicata to apply . . . there are three prerequisites to which the situation must conform. They are: (1) identity of parties[, including their privies]; (2) identity of the cause of action; and (3) adjudication by a court of competent jurisdiction. All of these elements must concur. [Cits.]’ [Cit.]” Firestone Tire &c. Co. v. Pinyan, 155 Ga. App. 343, 345 (2) (270 SE2d 883) (1980). The record shows that the denial of appellant’s previous petition for mandamus was on the merits. The denial of that petition for mandamus is, therefore, a conclusive adjudication of appellant’s entitlement to a promotion. See 50 CJS 150, fn. 58, Judgments, § 691. “[T]he appellant’s claim [s] against [appellees] alleging [violations] of 42 USC § 1983 [were] barred by the doctrine of res judicata, because [they] could and should have been presented to the . . . court [hearing the petition for mandamus].” Morgan v. Dept. of Offender Rehabilitation, 166 Ga. App. 611, 614 (2) (305 SE2d 130) (1983). Therefore, as to appellant’s promotion claims, the trial court did not err in granting appellees summary judgment based on their res judicata defense.

Decided March 3, 1988.

Antonio L. Thomas, for appellant.

George R. Ference, Marva Jones Brooks, W. Roy Mays III, Oli ver Hunter, for appellees.

2. As to his harassment claims, appellant enumerates as error the trial court’s grant of summary judgment to appellees based upon their defense of governmental immunity.

“We interpret 42 USCA § 1983 to create a cause of action, cognizable by the courts of this state, based upon acts which are in implementation of an intentional policy, adopted or ratified by the governing body of a public agency, which acts work deprivation of a constitutional right. Such a policy may be formal or informal, acknowledged or vigorously denied, persistent or intermittent, or implemented by but one single act. What is required to be proved, directly or circumstantially, is that a governing body has worked constitutional deprivation of a citizen pursuant to an impermissible or corrupt policy which is intentional and deliberate.” (Emphasis in original.) City of Cave Spring v. Mason, 252 Ga. 3, 4 (310 SE2d 892) (1984). See also Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 304-305 (4) (357 SE2d 569) (1987). Appellees’ evidence was sufficient to show that their treatment of appellant was neither harassment nor the result of an implementation of an intentional policy. Appellant produced no evidence to the contrary. Accordingly, as to appellant’s harassment claims, the trial court did not err in granting appellees’ motion for summary judgment based on their governmental immunity defense.

3. The trial court ruled that an amendment to appellant’s complaint purporting to add the Commissioner as a party defendant in his individual capacity was ineffective. In his brief, appellant urges that this ruling was erroneous. However, no enumeration of error is broad enough to authorize appellant to raise this issue on appeal. Accordingly, there can be no appellate review of this ruling by the trial court. See Irvin v. Askew, 241 Ga. 565, 566 (2) (246 SE2d 682) (1978).

4. Remaining enumerations of error are rendered moot by virtue of our previous holdings.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    75723.
    WILSON v. THE STATE.
    (366 SE2d 826)
    Decided March 3, 1988.

      Douglas J. Flanagan, for appellant.

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

After his arrest for attempted burglary, but prior to his indictment, appellant filed a demand for speedy trial. There being no indictment, appellant’s demand identified only by warrant number the offense for which he was seeking a speedy trial. Appellant was subsequently indicted for the offense. When he had not been tried by the next succeeding term of court, appellant filed a motion for acquittal. The trial court conducted a hearing and denied appellant’s motion. Pursuant to Hubbard v. State, 254 Ga. 694 (333 SE2d 827) (1985), appellant appeals directly from the order of the trial court denying the motion for acquittal.

This case is controlled by our recent decision in State v. Hicks, 183 Ga. App. 715, 716 (359 SE2d 712) (1987): “‘(A) demand for speedy trial pursuant to the provisions of OCGA § 17-7-170 may not be made until an indictment has been returned or an accusation preferred. [Cit.]’ [Cit.]. . . . [OCGA § 17-7-170] clearly provides that ‘(a)ny person against whom a true bill of indictment... is found . . . may enter a demand for trial. . . .’ Therefore, interpreting this statute literally, only a person who has been indicted or otherwise formally charged with a crime can invoke the rights afforded by OCGA § 17-7-170.” It follows that the trial court correctly denied appellant’s motion for acquittal.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    75758.
    HOCKMAN v. THE STATE.
    (366 SE2d 824)
   Sognier, Judge.

Appellant was convicted of aggravated assault, thirteen counts of burglary, misdemeanor theft by receiving, possession of a firearm during commission of a crime, attempted burglary and possession of a firearm by a convicted felon. Hockman appeals.

1. In his first two enumerations of error appellant contends the evidence was not sufficient to support his conviction in twelve of the thirteen burglaries, and thus, it was error to deny his motion for a directed verdict of acquittal as to those charges. Stated briefly, the evidence disclosed that during the period from August 5 to September 8, 1986, the homes of the victims in this case were burglarized. In each case the burglary occurred during the daytime while the occupants were absent, and entry was usually gained by breaking out a window, breaking out a window in a door, or breaking down the door itself. In each case the entire home was completely ransacked, and the items taken were similar, such as VCR’s, stereos and jewelry. In every case the burglar took pillow cases, apparently used to carry the stolen goods.

On September 8th, Madge Singley was notified by her brother-in-law that a strange van was at her home. Singley went home and a white van was parked by her house. As she drove up a woman came from behind the house with something yellow in her hand. Singley jumped out of her car and asked the woman what she was doing; the woman then hollered: “Get the hell out of there, there’s somebody out here.” Appellant came running out of the house and told Singley to get out of the way; he then jumped in the van and got a gun. Singley had blocked the van with her car and backed up; she then decided not to let the van get away and pulled up to it again. Appellant then pointed the gun at Singley and told her he would shoot her “if I didn’t get the hell out of the way.” Singley then backed up, and as she was crossing the driveway saw a police car coming; therefore, she stepped down on the gas and went across her yard, waving to get the attention of the police. Captain Robert Britt was driving the police car and when he saw Singley, he turned around and pursued the van. After a high speed chase for about a mile and a half, the driver (appellant) lost control of the van, hit a curb, blew out two tires and stopped. The woman, later identified as Linda Westfall, jumped out of the van with a gun in her hand and started running toward a wooded area. Appellant jumped out of the other side of the van and also started running toward the woods; however, he stopped when ordered to do so and was apprehended. Westfall was given two orders to stop and drop her gun; after the second order she did so, and was also apprehended. Appellant and Westfall were then taken back to Singley’s house, where she identified them positively as the persons who had been at her home, and the persons who drove off in the van. An inventory of the van revealed that property taken from all of the burglaries, including the burglary of Singley’s home, was in the van. Several pillow cases were also in the van.

Decided March 3, 1988.

Samuel H. Harrison, for appellant.

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

We find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Accordingly, it was not error to deny appellant’s motion for a directed verdict of acquittal. Eaton v. State, 184 Ga. App. 645, 647 (3) (362 SE2d 375) (1987).

2. Appellant alleges error in the trial court’s charge that the jury could infer that the operator of a motor vehicle is in possession of all property in the motor vehicle. This allegation is without merit. The court did not charge the jury that it could infer that the operator of a motor vehicle was in possession of all the property in the vehicle. Rather, the court charged the jury that if it found that a person was the operator of a motor vehicle the jury would be permitted, but not required, to infer that such person was in possession of all the property in the motor vehicle. The court also charged that this was a rebuttable inference.

Because appellant was the driver of the van in which the stolen goods were found, an inference was authorized that he was in possession of the stolen goods. Robinson v. State, 175 Ga. App. 769, 772 (2) (334 SE2d 358) (1985); Howard v. State, 185 Ga. App. 215, 216 (2) (363 SE2d 621) (1987). Thus, the court’s charge was a correct statement of the law under the evidence presented, and there was no error in the charge. Id.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.