text:
    77368.
    KATZ v. WHITE.
    (379 SE2d 186)
   Beasley, Judge.

Defendant Katz appeals the grant of plaintiff White’s amended motion for new trial in this suit for personal injuries resulting from a collision between the parties’ vehicles.

The court instructed the jury, as requested by appellant over plaintiff’s objection: “you may determine whether and to what extent Plaintiff’s alleged injuries may have caused [sic] or aggravated or increased by his failure to wear a seat belt. You may also consider his failure to wear a seat belt in determining the issue of failure to avoid the consequences of another’s negligence and mitigation of damages. Furthermore, if you determine that the Plaintiff was negligent in the operation of his car, you may consider his failure to wear his seat belt as an additional factor in determining the degree or extent of Plaintiff’s negligence.”

The trial court granted a new trial after expressly finding that such seat belt defense charge was confusing and might have caused the jury to find plaintiff negligent on the issue of liability because plaintiff was not wearing a seat belt. Appellant contends that the given seat belt charge was a correct statement of applicable Georgia law, or alternatively, harmless error especially when considered in the context of the charge as a whole.

OCGA § 40-8-76.1, effective September 1, 1988, prescribes the use of safety belts in passenger vehicles. Subsection (d) states: “Failure to wear a seat safety belt in violation of this Code section shall not be considered evidence of negligence, shall not be considered by the court on any question of liability of any person, . . . and shall not diminish any recovery for damages arising out of the ownership, maintenance, occupancy, or operation of a passenger vehicle.”

The verdict, judgment, and grant of new trial occurred before the effective date of this law. Even beforehand, the failure to use an available seat belt could arguably be considered by the jury only on the question of “ ‘amount of damages to be recovered’ subject to a showing that injuries could have been reduced by the use of a seatbelt. [Cit.]” See Sapp v. Johnson, 184 Ga. App. 603, 606 (3) (362 SE2d 82) (1987); F. A. F. Motor Cars v. Childers, 181 Ga. App. 821, 822 (3) (a) (354 SE2d 6) (1987); see also, although not controlling, Cannon v. Lardner, 185 Ga. App. 194, 195 (1) (363 SE2d 574) (1987); Wendlandt v. Shepherd Constr. Co., 178 Ga. App. 153, 154 (1) (342 SE2d 352) (1986).

Decided February 9, 1989

Rehearing denied February 27, 1989

Kenneth L. Shigley, Deborah L. Morgan, for appellant.

Cuffie & Associates, Thomas Cuffie, for appellee.

The instruction was couched in terms of comparative negligence. It did not contain any clear limitation that plaintiff’s failure to wear his seat belt was relevant only on the issue of damages. The last phrase especially could have misled the jury into consideration of the lack of a seat belt as directly relevant on the question of liability.

Moreover, although plaintiff agreed that he was tossed about the car during the collision, specifically that he bumped- his knees, defendant did not produce any evidence that plaintiff’s alleged injuries could have been reduced by the use of a seat belt. Sapp v. Johnson, supra at 606 (3). The instruction could not be directly tied to any evidence relating to the effect of plaintiff’s failure to use his seat belt. “As a result, ‘this instruction could have led the jury into determining that the fault of the [plaintiff] and [defendant] was equiponderant, resulting in a finding for the [defendant].’ [Cit.]” Martini v. Nixon, 185 Ga. App. 328, 330 (4) (364 SE2d 49) (1987).

Appellant asserts that the charge was harmless because there was no evidence of plaintiff’s “serious injury” as required under OCGA §§ 33-34-9 (a) and 33-34-2 (13) and because there was evidence of plaintiff’s negligence in driving without consideration of the seat belt non-use.

First, there was evidence from which the jury could have found that plaintiff incurred a “serious injury” as defined by law, proximately caused by the collision on trial. See Pinkston v. Hagin, 157 Ga. App. 2, 3 (2) (276 SE2d 67) (1981); Dabney v. Ammons, 150 Ga. App. 737 (258 SE2d 551) (1979). There was evidence of “disability for not less than ten consecutive days.” Likewise, the existence of any negligence by plaintiff other than non-usage of his seat belt was for the jury to determine. See Wilks v. Lingle, 112 Ga. App. 176 (1) (144 SE2d 552) (1965).

Secondly, we cannot discern the basis for the jury’s determination. It could have been, wholly or partially, the confusing instruction, leaving unreached the other elements such as proximate cause and damages.

The grant of a new trial was not legal error.

Judgment affirmed.

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


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    77439.
    HALKIRK COMPANIES CORPORATION v. DIRT BUSTERS, INC.
    (379 SE2d 173)
   Beasley, Judge.

We granted the application of Halkirk Companies Corporation to appeal in this garnishment action.

Halkirk was sued in Cobb County State Court as a result of a debt owed to Dirt Busters on an open account. That suit went into default and judgment was entered on April 23, 1987. On May 1, Dirt Busters filed its garnishment action in Fulton State Court against First Georgia Bank, the holder of Halkirk’s business accounts. On May 27, Halkirk filed in the Cobb case its Motion To Set Aside Judgment, For New Trial, and To Open Default. That same day, it filed in Fulton both a traverse to the garnishment and its Motion For Release and Stay of Garnishment, “pending resolution of its [Cobb] motion . . .” Part of the basis for its Motion To Set Aside Judgment was Halkirk’s contention that the judgment was based on fraud because, in the six-month period between the default and the entry of judgment, it had voluntarily paid Dirt Busters $2,064 toward its indebtedness for which it was not given credit in the judgment.

On June 16, the Fulton court entered its order releasing First Georgia Bank as garnishee, upon payment into the registry of the court by Halkirk the underlying judgment sum. That order further provided that it was entered to protect both Halkirk and Dirt Busters, “each of whom claim entitlement to these funds, until such time as the State Court of Cobb County enters an Order as to defendant’s motions to vacate and set aside the underlying Judgments.” On September 1, the Cobb court denied these motions. On October 12, upon being presented by Dirt Busters with a copy of the Cobb order, the Fulton court entered its order reciting receipt of the Cobb order and finding “no just cause to withhold from plaintiff” the funds paid into court. The Fulton clerk was directed to and did release to plaintiff $7,672.08, representing the full judgment plus interest.

When Halkirk was notified of this ex parte action after entry of the order, it filed a motion to reconsider. The court conducted a hearing and entered two separate orders, one signed on November 25 and one signed on December 22.

Both orders were filed December 23 and were based on the court’s conclusion that the Cobb order dealt with the identical issues of payments for which defendant claimed credit and that the Cobb findings were res judicata as to that issue. The orders denied the motion to reconsider and the traverse. Halkirk’s notice of appeal is from the “judgment entered on the 23rd day of December, 1987.”

1. OCGA § 18-4-65 (a) provides that the defendant in garnishment may, by traverse of the plaintiff’s affidavit, “challenge the existence of the judgment or the amount claimed due thereon.” Subsection (b), however, further provides that “[t]he validity of the judgment upon which a garnishment is based may only be challenged in accordance with Chapter 11 of Title 9 [including a motion to set aside a judgment pursuant to OCGA § 9-11-60 (b)]; and no such challenge shall be entertained in the garnishment case. However, where the court finds that the defendant has attacked the validity of the judgment upon which the garnishment is based in an appropriate forum, the judge may order the garnishment released and stayed until the validity of the judgment has been determined in such forum.”

Decided February 8, 1989

Rehearing denied February 27, 1989

Brock & Clay, T. Tucker Hobgood, Clifton S. Cochran, for appellant.

This is precisely the relief which Halkirk sought and was afforded. The order unappealed by Halkirk specifically released the garnishee from the action and released Halkirk’s bank accounts, required Halkirk to deposit its own funds into court and provided that the only contingency to the release of the funds was the resolution by the Cobb court of the motion to set aside.

While Dirt Busters’ counsel should have notified Halkirk of the presentation of the Cobb order to the Fulton court, it is unclear what if any harm Halkirk suffered from it, there being nothing left to resolve. Upon the deposit of funds from the debtor into the court, OCGA § 18-4-6 (2), or an order directing the garnishment to be released, OCGA § 18-4-6 (4), the garnishment is released. Both occurred and the judge’s order left nothing to resolve as to the merits of the underlying action.

If this was not the result desired by Halkirk, it should have exercised its right to appeal that order. The order is res judicata in resolving the garnishment proceeding as to Halkirk and Dirt Busters. OCGA §§ 9-12-40; 9-12-42. The denial of the “motion for reconsideration” filed after the entry of the final order was not error.

2. The trial court’s ruling that the Cobb order was binding as to the validity of the underlying judgment was also correct. That forum was the only one in which Halkirk could challenge the Cobb judgment. OCGA § 18-4-65 (b); Bautz v. Best, 170 Ga. App. 219, 221 (3) (316 SE2d 589) (1984). Having filed no appeal from that court’s denial of the motion to set aside, the ruling that there was no fraud in obtaining the judgment is binding. OCGA §§ 9-12-40; 9-12-42; Winters v. Pund, 179 Ga. App. 349, 352 (346 SE2d 124) (1986); see Norris v. Atlanta & West Point R. Co., 254 Ga. 684 (333 SE2d 835) (1985); Smith v. Smith, 161 Ga. App. 20 (289 SE2d 5) (1982).

Judgment affirmed.

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

Jay W. Bouldin, for appellee.


author: Carley, Chief Judge.

text:
    77487.
    RALEY v. LANCO PAINT & DRYWALL et al.
    (379 SE2d 196)
   Carley, Chief Judge.

In July of 1986, appellant-employee was involved in a job-related accident. As of November of 1986, appellees-employer/insurer commenced the voluntary payment of workers’ compensation benefits to him. In March of 1987, however, the payment of benefits was unilaterally suspended by appellees on the basis of an alleged change in appellant’s condition. Appellant requested a hearing on the issue of whether there had been such a change in his condition as would warrant the suspension of his benefits. In addition, appellant sought an award of attorney’s fees pursuant to OCGA § 34-9-108 (b). After conducting a hearing, the Administrative Law Judge (ALJ) found that appellees had not carried their burden of showing a change in appellant’s condition and awarded continued benefits and attorney’s fees to appellant. Appellees appealed to the Full Board. After its de novo review, the Full Board adopted the award of the ALJ as its own.

Appellees then appealed to the superior court. Relying upon OCGA § 34-9-105 (c), the superior court reversed the award as lacking sufficient evidentiary support and the case was remanded to the Full Board for additional findings. In specific, the superior court held: “While there is testimony to establish [appellant] was injured on July 24, 1986 and became disabled after that date, the record is not adequately developed to support the findings adopted by the [Full] Board. [Cit.] The record should show the nature of the injury. . . .” This appeal results from the grant of appellant’s application for a discretionary appeal from the superior court’s order.

1. Urging that the “any evidence” standard was misapplied by the superior court, appellant enumerates the reversal of his award and the remand of the case for additional findings as erroneous.

Since appellees had been making the voluntary payment of compensation benefits to appellant for more than sixty days, “the applicable provision here is that portion of OCGA § 34-9-221 (h) which provides that, after the passage of 60 days from the due date of the first payment of compensation made without an award, the employer/insurer ‘shall not’ controvert liability ‘except upon the grounds of change in condition or newly discovered evidence. . . .’ ” Carpet Transport v. Pittman, 187 Ga. App. 463, 465 (1) (370 SE2d 651) (1988). Appellees did not seek to controvert liability on the ground of newly discovered evidence relating to the compensability of appellant’s original work-related accident of July 1986. Compare Carpet Transport v. Pittman, supra. What appellees did seek was to controvert liability on the ground of a change in appellant’s condition. Accordingly, contrary to the superior court’s ultimate conclusion, a more extensive investigation by the Full Board into the “nature” of appellant’s original injury would constitute a totally irrelevant inquiry. By the passage of time, the “nature” of appellant’s original injury was established as being such as to render appellees liable for the payment of compensation benefits for so long as appellant continued to be disabled as the result thereof. Thus, the proper evidentiary focus would be upon the “nature” of appellant’s condition subsequent to his original compensable injury rather than upon the “nature” of the original injury itself. Appellees had the burden of showing that, notwithstanding the otherwise uncontested compensability of a disability attributable to appellant’s original work-related accident, there had been “a change in [his] wage-earning capacity, physical condition, or status . . . , which change must have occurred after the date on which [appellant’s] earning capacity, physical condition, or status . . . was last established by award or otherwise.” OCGA § 34-9-104 (a).

Appellees’ suspension of the payment of benefits in March of 1987 was premised upon their contentions that appellant had “returned to work [and also that his] [c]urrent medical disability is not a result of his [compensation] claim.” The award of the ALJ, as adopted by the Full Board, found that appellees had not met their burden of showing that such subsequent changes in appellant’s condition had occurred. Therefore, unless the evidence of record demanded a contrary finding either that appellant had returned to work or that his current disability was not related to his original work-related accident, the superior court erred in reversing the award and remanding the case for additional findings. See generally Horton v. Ga. Power Co., 164 Ga. App. 252 (296 SE2d 798) (1982); New Hampshire Ins. Co. v. Riddle, 126 Ga. App. 96, 97 (2) (190 SE2d 100) (1972).

2. The evidence of record clearly did not demand a finding that, subsequent to his original injury, appellant’s condition had changed by virtue of his return to work. At the hearing, appellant testified that he had not been employed by anyone in any capacity since the date of his job-related injury. “ ‘In order to render any finding of fact demanded as a matter of law, not only must there be no controversy in the evidence material to the issue involved, but the implications and inferences which logically and properly arise from the evidence must necessarily lead to only the one conclusion.’ [Cit.]” Cobb Gen. Hosp. v. Burrell, 174 Ga. App. 631, 632 (331 SE2d 23) (1985). The finding that appellant had not returned to work since his original disabling injury was supported by some evidence and a reversal of the award on the ground that a contrary finding was demanded would not be authorized.

3. It is undisputed that appellant is currently disabled and that his disability is the result of neuropathy. Thus, the issue to be resolved is whether the evidence demanded a finding that appellant’s current neuropathy is not attributable to his original work-related accident. If, but only if, the evidence demanded such a finding, appellant has no right to continued compensation and the superior court correctly reversed the award and remanded for further findings. See Williams Bros. Lumber Co. v. Magee, 162 Ga. App. 865 (292 SE2d 477) (1982).

There was no burden on appellant to prove that his neuropathy was caused by the work-related accident. The burden was entirely on appellees to prove that no such causal connection exists. The evidence upon which appellees rely as demanding a finding that they met their burden of proving that appellant’s current disability is not the result of his original work-related accident is a letter of appellant’s treating physician. In relevant part, this letter, dated March 23, 1987, states, “I cannot explain the neuropathy in either of [appellant’s] arms. . . . It appears there was no injury to the nerves as a result of the accident which occur[r]ed on July 2[6], 1986.”

There is considerable doubt whether such a statement should even be considered as the expression of a probative opinion by the physician as to the cause of appellant’s current disabling condition. In effect, the physician states that, while it “appears” that appellant’s current condition is not the result of the original work-related accident, he ultimately has no explanation for what the cause of that condition might be. That it merely “appears” that no causal relationship exists between the original injury and the current neuropathy is certainly a less definitive conclusion than an unequivocal opinion that no such causal relationship could in fact exist. The physician’s statement does not eliminate appellant’s original compensable accident as a possible cause of his current disability. “[W]hile the [physician] stated that the cause of the [disability] was [neuropathy], [he] could not offer any explanation of the cause of the [neuropathy].” American Motorists Ins. Co. v. Blaylock, 84 Ga. App. 409, 413 (66 SE2d 126) (1951).

Moreover, assuming that the physician’s statement would even authorize a finding that there was no causal relationship between the original work-related accident and appellant’s current disabling condition, it clearly did not demand such a finding. “ ‘A medical expert may give his opinion as to the cause of an injury; but where the cause of the injury constitutes the ultimate issue of fact to be determined by the fact-finding tribunal, this opinion is not absolutely binding on such tribunal. To hold otherwise would preclude such tribunal from exercising its proper function. The fact-finding body must take the evidence of the medical expert along with all other facts and circumstances of the case, and thus determine the ultimate issue.’ [Cits.]” Fulton-DeKalb Hosp. Auth. v. Hadley, 174 Ga. App. 503, 505 (1) (330 SE2d 432) (1985). “The Full Board is not ‘ “bound in every way to accept the literal statements of a witness before it, merely because such statements are not contradicted by direct evidence. Implications inconsistent with the testimony may arise from the proved facts and in still other ways the question of what is the truth may remain an issue of fact, despite uncontradicted evidence in regard thereto.” [Cits.]’ [Cit.]” Cobb Gen. Hosp. v. Burrell, supra at 632. Considering all the other facts and circumstances of the case, there is some evidence to authorize a finding that appellant’s current disability from neuropathy is the continuing result of his original work-related accident rather than of some non-compensable cause. See generally Autry v. Gen. Motors &c. Plant, 85 Ga. App. 500 (69 SE2d 697) (1952). “ ‘The distinction between proximate and remote causes is not to be too rigorously pressed in the application of the [Workers’] Compensation Act.’ ” Thomas v. U. S. Cas. Co., 218 Ga. 493, 494 (3) (128 SE2d 749) (1962). “[W]here the facts testified to by the claimant raise a reasonable inference that the accident claimed to have occurred is causally connected with the disability from which the claimant is suffering, there is some evidence to support a finding in his favor, even though such finding may be unsupported or even contradicted by expert witnesses. [Cit.]” Travelers Ins. Co. v. Childers, 110 Ga. App. 466 (2) (138 SE2d 923) (1964). A finding that appellant’s current disability is the result of the original job-related accident being supported by some evidence, a reversal of the award on the ground that a contrary finding was demanded would not be authorized.

4. The superior court also remanded the case to the Full Board to “develop the basis for the finding that [appellees’] actions were unreasonable and warranted an award of attorney’s fees.”

To authorize an award of attorney’s fees, “[t]he conclusion that appellees acted . . . ‘without reasonable grounds’ must be supported by specific findings of fact. [Cit.]” Ledbetter v. Pine Knoll Nursing Home, 180 Ga. App. 654, 656 (3) (350 SE2d 299) (1986). However, the conclusion of the ALJ, as adopted by the Full Board, that appellees had acted “without reasonable grounds” is supported by sufficiently specific findings regarding appellees’ suspension of appellant’s benefits without proper notice. Compare Ledbetter v. Pine Knoll Nursing Home, supra. Accordingly, the superior court erred in remanding the case to the Full Board to “develop the basis for the finding that the employer’s actions were unreasonable. ...” A review of the record on appeal shows that “[t]he evidence was sufficient to support the findings of fact that the [appellees] failed to comply with [OCGA § 34-9-221] without reasonable grounds.” Liberty Mut. Ins. Co. v. Kirkland, 156 Ga. App. 576-577 (1) (275 SE2d 152) (1980).

Decided February 10, 1989

Rehearing denied February 27, 1989

Mundy & Gammage, E. Lamar Gammage, Jr., George E. Mundy, for appellant.

Saveli & Williams, John M. Williams, Richard G. Farnsworth, for appellees.

5. The trial court erred in reversing the award of benefits and attorney’s fees to appellant and in remanding the case to the Full Board for further findings. The award in favor of appellant should have been affirmed.

Judgment reversed.

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


text:
    77584.
    BELCHER v. THOMSON NEWSPAPERS, INC.
    (379 SE2d 204)
   Carley, Chief Judge.

Appellant-plaintiff filed a complaint, alleging that his employment contract had been wrongfully terminated by appellee-defendant. Appellant appeals from the trial court’s grant of appellee’s motion for summary judgment. Appellant enumerates the grant of summary judgment in favor of appellee as error, urging that there remained genuine issues of material fact to be submitted to the jury.

The evidence of record contains a written contract between appellee and appellant. One of the paragraphs of the contract provides, in relevant part, as follows: “Either party may cancel this contract, at any time before or after termination of an initial or renewal term, on 30 days written notice with or without cause.” The evidence of record also contains appellee’s letter to appellant, terminating the latter’s employment on only two-days’ notice. On this evidence, it was clearly error to grant summary judgment in appellee’s favor. Construing the evidence most favorably for appellant would authorize a finding that appellee had breached the contract by failing to give the thirty-days’ notice required under the terms of the contract. “A wrongful discharge in violation of a contract right to continued employment gives an employee the right to recover damages. . . . ‘Where a contract of employment expressly empowers an employer to terminate the contract upon giving notice, recovery for wrongful breach is limited to the notice period.’ ” Mayor & City of Douglasville v. Hildebrand, 175 Ga. App. 434, 437 (3) (333 SE2d 674) (1985). Accordingly, appellee would be liable to appellant for damages incurred as the result of the breach of the contractual notice provision. The lack of any evidence of harm to appellant resulting from this breach “would not constitute a viable basis for granting [appellee’s] motion for summary judgment. ‘In every case of breach of contract the injured party has a right to damages, but if there has been no actual damage, the injured party may recover nominal damages sufficient to cover the costs of bringing the action.’ OCGA § 13-6-6. See Bishop v. Intl. Paper Co., 174 Ga. App. 863 (332 SE2d 12) (1985); Bradley v. Godwin, 152 Ga. App. 782, 784 (3) (264 SE2d 262) (1979).” Don Swann Sales Corp. v. Parr, 189 Ga. App. 222 (2) (375 SE2d 466) (1988).

Decided February 15, 1989

Rehearing denied February 27, 1989

Coleman, Kitchens, Wolf son & Smith, David M. Wolf son, Robert E. Cullifer, for appellant.

W. G. Elliott, for appellee.

Judgment reversed.

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


text:
    77589.
    77590.
    BURROUGHS v. THE STATE. KING v. THE STATE.
    (379 SE2d 175)
   Beasley, Judge.

Following the denial of their motions for new trial, Latashe Dee Burroughs appeals her bench conviction and sentence for trafficking in cocaine, OCGA § 16-13-31 (a), and co-defendant Eugene King, Jr., appeals his bench conviction and sentence for possession of cocaine, OCGA § 16-13-30, in violation of the Georgia Controlled Substances Act, OCGA § 16-13-20 et seq. Orders of nolle prosequi were entered on one count of trafficking in cocaine, OCGA § 16-13-31 (a), and two counts of possession of a firearm by a convicted felon, OCGA § 16-11-131, as to King and on one count of possession of a firearm during commission of a crime, OCGA § 16-11-106, as to both defendants.

The defendants filed various pretrial motions, including ones to suppress and to reveal the identity of the informant. A hearing on the motions was held. King did not appear, so the trial court reserved ruling on his motions until such time as he was arrested and jailed. The court denied Burroughs’ motions to suppress and to reveal the identity of the informant and reserved final ruling on severance. Defendants waived their rights to trial by jury.

Eight days after the motions hearing, another hearing was held at which time the trial court determined that the earlier rulings on Burroughs’ motions would be the same with respect to King’s. It also acknowledged that defendants had agreed to a bench trial, stipulating as facts those gleaned at the motions hearing, with a reservation of all rights by both defendants to appeal the ruling on the motion to suppress.

The stipulated evidence when viewed in a light most favorable to the verdict, Thomas v. State, 175 Ga. App. 873, 874 (1) (334 SE2d 903) (1985), showed the following: Between 2:00 and 3:30 p.m., Atlanta police made two drug arrests. The arrests were made after the arrestees sold a police detective five ounces of cocaine. The arrestees told police that they had received cocaine from a black female named DeDee who was accompanied by a black male known as Gino. The arrestees had already gotten in the neighborhood of three to five ounces of cocaine from DeDee. They gave police DeDee’s address in Decatur and the fact that she was known to drive a new maroon Subaru with a Boomershine drive-out tag. The police checked certain personal information that the arrestees had given about themselves, and a detective took the arrestees on a “ride-by” of the address of their alleged suppliers. The arrestees pointed out the location, the vehicle, and the apartment or condominium out of which DeDee and Gino were allegedly selling or distributing the drugs. The detective relayed the numbers and the vehicles that were there at that time. He then relayed the information to his supervisor who contacted the DeKalb County Police.

At approximately 3:45 or 4:00 p.m., the Atlanta police met with a DeKalb County detective. The detective learned that the arrestees said they could call DeDee and Gino and have four or five ounces of cocaine delivered just on a phone call. Around 5:30 or 6:00 p.m., the police had the arrestees call and arrange for a drug purchase. DeDee agreed to meet the arrestees at the Foto-Mat at South DeKalb Mall in about thirty minutes and to bring five ounces of cocaine.

Following the call, two officers did a surveillance of the suspects’ location. They observed Burroughs and King exit, enter the maroon Subaru and leave. The officers followed them to Clarkston, temporarily lost them, and picked them back up again as they returned to I-285 and headed back towards South DeKalb Mall. Meanwhile, at the mall, the arrestees sat with police in an unmarked van from which arrestees could see but could not be seen.

At approximately 6:30 p.m., the maroon Subaru, driven by King with Burroughs as a passenger, entered the mall parking lot and pulled up to an unmarked vehicle in which a police officer sat. When the car drove into the lot, one of the arrestees yelled, “Here comes the car, here comes the car.” One of the arrestees identified the male driver as Gino.

Defendants’ car was stopped alongside the officer’s unmarked car and defendants conversed with the officer. All of the officers in the parking lot began to exit their vehicles, move in, and identify themselves as police officers. The Atlanta police officers were wearing flak jackets that had “Atlanta Police, Narcotics” on the back and caps with “Atlanta Police” on top. One DeKalb County detective had his badge on his vest. All officers were yelling “police” as they approached the car.

Driver King attempted to reach for something beneath the seat. The officers drew their weapons. King put his car in reverse and backed into the nearby unmarked police vehicle. As defendants’ car came to rest, the officers around the car saw a gun lying on the console. King and Burroughs were arrested and searched. Burroughs was carrying a purse that contained her driver’s license, checkbook, other pertinent information, a little more than five ounces of cocaine and $624 in cash. Approximately one ounce of cocaine was found in King’s pants pocket. A Smith & Wesson .357 was found in the car’s glove box and a television was found in the backseat.

1. Appellants contend that the evidence was insufficient to uphold their convictions.

a) Burroughs claims that she was not in actual possession of any cocaine, that she was merely a passenger in a car in which a purse was found containing five ounces of cocaine and that there was no evidence indicating she knew there was cocaine in her purse. She further contends that she was not the owner or driver of the car and others had equal access to the car and its contents.

A conviction for trafficking in cocaine under OCGA § 16-13-31 (a) does require a finding of actual and not constructive possession. Lockwood v. State, 257 Ga. 796, 798 (364 SE2d 574) (1988). “A person who knowingly has direct physical control over a thing at a given time is in actual possession of it.” Id. at 797.

There was evidence that Burroughs had direct physical control over the purse containing the approximately five ounces of cocaine because there was evidence that she was found carrying it and that it held her driver’s license, checkbook, and other pertinent information. See as persuasive Bonds v. State, 188 Ga. App. 135 (372 SE2d 448) (1988), wherein the defendant was convicted of, inter alia, violation of OCGA § 16-13-31 (a) after defendant’s purse containing the contraband was found a few inches away directly next to defendant, who was sitting on a couch alone. Here, there was much more than mere “spatial proximity” as appellant suggests. See McCann v. State, 137 Ga. App. 445, 446 (2) (224 SE2d 99) (1976). Furthermore, the fact-finder was permitted to infer guilt from evidence of defendants’ flight. Cohran v. State, 157 Ga. App. 551, 552 (1) (278 SE2d 133) (1981).

Burroughs’ equal-access argument also fails. She relies on the claims that she was accompanied by driver King and that the car belonged to a third party and was just temporarily loaned to defendants that day. But the contraband in dispute was not found in the general space oil the car but rather in her purse over which there was evidence of her direct control and no evidence of access or control by others. The equal-access rule is inapplicable where the State’s evidence is that the defendant actually and physically possessed the contraband. Marshall v. State, 153 Ga. App. 198, 200 (5) (264 SE2d 718) (1980).

The evidence was sufficient to enable any rational trier of fact to find Burroughs guilty of trafficking in cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

b) King claims that there was no competent evidence that he was in possession of any amount of cocaine because the evidence consisted solely of hearsay and there was no expert testimony identifying the seized drugs as contraband, no stipulated crime lab report, and absolutely no testimony identifying any substance seized from him.

Contrary to appellant’s assertion, there was testimony regarding the seized substance. On direct, a DeKalb County detective involved in the arrests testified that King was “searched on the scene by, I believe, Detective . . . and approximately one ounce of cocaine was found in his pocket, pants pocket.”

This statement about the contraband found on King was not shown to be hearsay because on its face the statement derives its value from the credit of the testifying detective. OCGA § 24-3-1. Although the testifying detective states that King was searched by another he does not indicate that the knowledge of the found contraband was anything other than personal knowledge. This evidence was not without probative value.

Furthermore, identification of a material or substance may be made by other than expert testimony. See, e.g., Wortham v. State, 158 Ga. App. 19, 20 (2) (279 SE2d 287) (1981). But that is not even at issue because the detective was not rendering his opinion as an expert, see OCGA § 24-9-67, or otherwise, see OCGA § 24-9-65, about what the found substance was but rather was relating facts known or observed by him. King does not claim that the substance was anything other than cocaine. In fact, King stipulated the evidence adduced at the hearing. In any event, King did not object at the motions hearing to the detective’s testimony about the contraband found on King; therefore, it was waived. Allen v. State, 152 Ga. App. 481, 482 (2) (263 SE2d 259) (1979).

The evidence was sufficient to support King’s conviction for possession of cocaine. Jackson v. Virginia, supra.

2. Appellants contend that the search and seizure of the evidence violated the Fourth, Fifth and Fourteenth Amendments of the Federal Constitution; Art. I, Sec. I, Par. XIII of the State Constitution; and OCGA § 17-5-1, in four particulars which raise four questions.

a) Was the search and seizure the product of illegal arrests because there was no probable cause to make the arrests?

Although appellants call upon the State Constitution as well, the numerous authorities cited are either United States Supreme Court cases or Georgia cases which apply that court’s standard and/or the state statutory law; therefore, we do not deal with appellants’ claims under the State Constitution. See Lovell v. State, 178 Ga. App. 366 (1) (343 SE2d 414) (1986). We note that in Durden v. State, 250 Ga. 325 (297 SE2d 237) (1982), cited by appellants, our Supreme Court in discussing when a warrantless arrest is valid under the Federal Constitution and state statutes determined that “[a]n arrest and search, legal under federal law, are legal under state law.” Id. at 327 (1).

“The validity of the arrest[s] under the United States Constitution 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 (defendants) had committed or [were] committing an offense.’ [Cits.]” Lovell v. State, supra at 367 U).

The police had verified much of the pertinent information given by the arrestees, specifically information about their suppliers’ whereabouts, car, and willingness to arrange a drug buy with a telephone call. Appellants who fit the physical descriptions given by the arrestees arrived at the arranged time and place for the drug transaction and in the vehicle also described by the arrestees. Compare Stanley v. State, 129 Ga. App. 759 (201 SE2d 182) (1973) wherein the informants gave no information to the police as to the defendant’s name, physical description, or where he could be located. The cumulative effect of the arrestee’s reliable information and the officers’ own observations provided the initial probable cause to believe that a crime was being committed. Weaver v. State, 145 Ga. App. 194, 195 (1) (243 SE2d 560) (1978).

Additionally, immediately prior to appellants’ arrests they attempted to flee the approaching officers, strengthening the probable cause authorizing the arrests. See Watson v. State, 153 Ga. App. 545, 547 (1) (265 SE2d 871) (1980) which discusses this in the context of the federal standard and Code Ann. § 27-207 (a) (OCGA § 17-4-20).

b) Was there a lack of probable cause because the information from the informer was not shown to be reliable and trustworthy, sufficient to authorize a stop under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), a search or an arrest?

The information supplied by the arrestees was sufficiently reliable and trustworthy. The arrestees produced five ounces of cocaine which they claimed to have received from appellants and disclosed prior dealings in illegal substances with appellants, thus explaining the basis of their knowledge about appellants’ activities. The arrestees, by volunteering information about their illegal transactions with appellants, subjected themselves to further potential criminal prosecution. Such actions against their penal interests support the conclusion that they were speaking truthfully. Weaver v. State, supra at 195 (1)-196.

c) Did the officers have sufficient time and, opportunity to get a warrant?

“Searches are conducted either with or without a search warrant. ‘(T)he most basic constitutional rule in this area is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment . . . subject only to a few specifically established and well-delineated exceptions.” The exceptions are “jealously and carefully drawn,” and there must be “a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.” “[T]he burden is on those seeking the exemption to show the need for it.’” [Cit.]” State v. Slaughter, 252 Ga. 435, 436 (315 SE2d 865) (1984).

The State carried its burden of showing the exigency of the situation. It presented evidence that the police did not have sufficient time to obtain warrants because they were working with “street-level drugs” rather than “major violators”; the procedure in such a situation was to react as quickly as possible, to check out the information and act on it so it would not become stale; experience had shown that once the arrestee/informer is in jail others soon find out and the arrestee’s drug connections “dry up.”

d) Were searches of defendants outside of authorized Terry searches, and was the search of Burroughs’ purse unauthorized?

Appellants’ arrests were lawful; therefore, searches of them were lawful as incident to the arrests. OCGA § 17-5-1. The search of Burroughs’ purse was authorized as it was in “ ‘the area within [her] immediate presence.’ ” Smallwood v. State, 166 Ga. App. 247 (2) (304 SE2d 95) (1983). Moreover, the exigent circumstances including the fact that officers spied a gun on the console of appellants’ car authorized them to search the purse to eliminate the possibility of its containing a weapon dangerous to themselves. See Dennis v. State, 166 Ga. App. 715, 717 (305 SE2d 443) (1983).

Burroughs takes issue with the fact that the officer did not feel her purse for a weapon before opening it. “[I]t would be reasonable to believe that if a woman with a purse had a weapon it would be in the purse rather than on her person. . . . Merely patting down a purse, even if it was pliable, would not [reveal a weapon to the touch] as the nature of the objects felt would not necessarily identify them as non-weapons. The search for weapons must only ‘be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.’ [Cit.]

“With regard to the weapons aspect, this was nothing more nor less, at the least, than a Terry-type search of the purse to which [Burroughs] had access when the police arrived .... [Cit.] That is, it was an authorized protective search for weapons.” Bonds v. State, supra at 137, 138.

3. Lastly, appellants contend that in denying their motions to reveal the identity of the informer the trial court violated their Sixth Amendment rights of confrontation and their rights to due process.

“In Roviaro v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639), the United States Supreme Court held that the government’s privilege to withhold from disclosure the identity of a confidential informant is limited by the underlying purpose of the privilege itself and ‘the fundamental requirements of fairness.’ Id. at 60. Thus, the court concluded that ‘(w)here the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.’ Id. at 60-61. The Supreme Court declined to adopt a fixed rule of disclosure, opting instead for a balancing test which would balance ‘the public interest in protecting the flow of information against the individual’s right to prepare his defense.’ Id. at 62. The resolution of each case, accordingly, depends on the particular circumstances involved, ‘taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.’ (Emphasis supplied.) Id. at 62. . . .

“In the keystone case of Thornton v. State, 238 Ga. 160 (231 SE2d 729), cert. den. 434 U. S. 1073, our Supreme Court, after reaffirming Georgia’s policy against nondisclosure of an informant’s identity, unequivocally embraced the Roviaro balancing test as ‘it is now well established as the law of Georgia.’ Id. at 163-164.” Moore v. State, 187 Ga. App. 387, 389 (2) (370 SE2d 511) (1988).

Assuming that the arrestees could best be characterized as informers and limited participants, the critical inquiry then is whether their possible testimony would have been highly relevant and might have helped appellants’ defense. Id. at 390 (2).

The arrestees gave police appellants’ names, addresses, and descriptions, visually identified appellants’ location, and then arranged to buy cocaine from appellants at a specified time and place. When appellants arrived at the arranged time and place for the sale, the arrestees were in an unmarked police van out of view of appellants. When the police began to close in on appellants but before appellants exited from their car, the arrestees were driven from the scene. They did not participate at that point in the drug transaction nor actually witness it. Thus, their testimony would not have materially and favorably affected the facts that appellants came to the arranged sale scene in possession of cocaine sufficient for Burroughs to be guilty of trafficking in cocaine and for King to be guilty of possession of cocaine. OCGA §§ 16-13-31 (a); 16-13-30. In other words, their testimony would not have materially affected appellants’ defenses to the charges. Id.

Decided February 8, 1989

Rehearing denied February 27, 1989

J. M. Raffauf, for appellants.

Robert E. Wilson, District Attorney, Eleni A. Pryles, Robert M. Coker, Assistant District Attorneys, for appellee.

The appellants’ Federal Constitutional rights of confrontation and due process were not violated by the trial court’s refusal to compel disclosure of the arrestees’/informers’ identities.

Judgments affirmed.

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


author: Carley, Chief Judge. Deen, Presiding Judge,

text:
    77620.
    In the Interest of M. O. B.
    (378 SE2d 898)
   Carley, Chief Judge.

Prior to a hearing to determine appellant’s delinquency, a motion to dismiss the juvenile court proceedings was filed. Appellant brings this direct appeal from the juvenile court’s denial of his motion to dismiss.

The initial issue for resolution is whether the denial of the motion to dismiss the delinquency proceedings is directly appealable. There is no statutory or decisional authority which explicitly recognizes this court’s jurisdiction to hear a direct appeal from such an interlocutory order. Appellant based his motion to dismiss solely upon an alleged failure to comply with the time requirements of OCGA § 15-11-26 (a). Compare Ould v. State, 186 Ga. App. 55 (366 SE2d 392) (1988) (motion to dismiss criminal proceedings based upon denial of the constitutional right to speedy trial). In urging that this court has jurisdiction to hear his direct appeal, appellant analogizes the denial of his motion to the denial of a motion to dismiss which is predicated upon OCGA § 17-7-170.

It is true that the denial of an OCGA § 17-7-170 motion is directly appealable. Subsection (b) of that provision provides, in relevant part, as follows: “If the person is not tried when the demand is made or at the next succeeding regular court term thereafter, ... he shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.” (Emphasis supplied.) Thus, in Smith v. State, 169 Ga. App. 251, 252 (1) (312 SE2d 375) (1983), it was held that the denial of an OCGA § 17-7-170 motion was directly appealable because such a ruling “does not constitute the trial court’s refusal to grant the accused an acquittal and thereby terminate the original prosecution. Rather, the denial of an OCGA § 17-7-170 [cit.] motion constitutes the trial court’s determination that the prosecution has not already resulted in an automatic acquittal of the accused by operation of law. Therefore, to the extent that the denial of an OCGA § 17-7-170 [cit.] motion allows the prosecution to proceed, it is an adjudication that the impending trial of the accused will not place him in jeopardy for the commission of a crime for which he has previously been acquitted.” (Emphasis in original.) The Supreme Court subsequently endorsed this reasoning. “In Smith, supra, an analogy between double jeopardy and the speedy trial requirements of OCGA § 17-7-170 was drawn and, we think correctly so.” Hubbard v. State, 254 Ga. 694, 695 (333 SE2d 827) (1985).

In stark contrast to OCGA § 17-7-170, however, there is no explicit language in OCGA § 15-11-26 which mandates that the failure to comply with the statutory time limits provided therein will result in an adjudication of the juvenile’s non-delinquency by operation of law. In the absence of such statutory language, it follows that “the denial of an OCGA § [15-11-26] motion [does not constitute] the [juvenile] court’s determination that the [delinquency proceedings have] already resulted in an automatic acquittal of the [juvenile] by operation of law. Therefore, to the extent that the denial of an OCGA § [15-11-26] motion allows the [delinquency proceedings] to proceed, it is [not] an adjudication that the impending [delinquency hearing] will . . . place [the juvenile] in jeopardy for the commission of a [delinquent act] for which he has previously been acquitted.” Smith v. State, supra at 252 (1). (Emphasis in original.) Thus, rather than Hubbard, supra, or Smith, supra, the authority which is controlling in the present case is Austin v. State, 179 Ga. App. 235 (345 SE2d 688) (1986), wherein the direct appeal from the denial of a plea in bar was dismissed because “there has been no prior adjudication favorable to the appellant ... , by operation of law or otherwise.” (Emphasis supplied.)

It is a legislative function to establish the jurisdictional requirements for the appealability of cases. The appellate courts have heretofore given due consideration to the finality requirement which otherwise serves as a statutory limitation on direct appealability. Neither Hubbard, supra, nor Smith, supra, are authority for the proposition that the denial of any and all motions to dismiss would be directly appealable. The direct appealability of interlocutory orders remains the exception rather than the rule. All that has been previously recognized is “that ‘a broader construction’ of direct appealability ‘is appropriate where the order appealed from is one denying a plea of double jeopardy[,]’ ” and that the denial of an OCGA § 17-7-170 motion is such an order. Smith v. State, supra at 251 (1). However, for the reasons discussed, the denial of an OCGA § 15-11-26 motion cannot be analogized to the denial of an OCGA § 17-7-170 motion. “Because we conclude that this issue is one for which a certificate of immediate review and petition for interlocutory appeal were required, . . . the appeal must be dismissed. [Cits.] This is not a question involving speedy trial rights under OCGA § 17-7-170, which would be directly appealable. [Cit.] ” Miller v. State, 180 Ga. App. 710, 711 (350 SE2d 313) (1986).

Appeal dismissed.

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

Deen, Presiding Judge,

concurring specially.

This case is illustrative of a prospective appellant walking on egg shells or minefields through the narrow winding passageway of a spaghetti junction, while seriously striving and seeking to select and identify the proper pathway of either an interlocutory, discretionary, or a direct appeal. Acknowledging that statutory requirements and conditions precedent in selecting the appropriate appellate process are jurisdictional, the fact that our published reports, as well as unpublished opinions, are liberally littered with the corpses of cases where the death penalty of dismissal has been speedily carried out, confirms the difficulties, pitfalls, and dangers of one’s seeking to maneuver around on the one hand, the “narrow path between the Scylla . . . and the Charybdis” on the other. Brogdon v. McMillan, 116 Ga. App. 34 (2) (156 SE2d 828) (1967). If one single appellate technicality and hurdle is avoided and overcome in this area, forty-nine other damnations sometime seem to appear to snag appellant’s effort to appeal. “Forty-nine distinct damnations; one sure if another fails.” Coolik v. Hawk, 133 Ga. App. 626, 628 (212 SE2d 7) (1974).

This much at least seems to obtain. Legislative directions and requirements as to jurisdiction must receive strict, serious, and sound scrutiny and exacting compliance. In contrast, our court directions, rules, and court orders directed to appellants, on the other hand, may be taken lightly, cavalierly, or many times totally ignored and mostly without any type of sanction. Endless extensions are enlisted and extravagantly indulged. In sending out its docketing notice, pursuant to court rule, our court directs, instructs, or orders appellant to file a brief and enumeration of errors within twenty days. On many occasions this time limit is ignored. Often an extension of time is requested and almost always an appellant is provided additional time in an extension. If the latter court order granting an extension deadline is also ignored by appellant, the court still does not impose sanctions of contempt or dismiss the appeal until further action of the court. Once again, the court issues still another order providing an extension of five additional days to file before we indicate the case will theoretically be dismissed if there is a noncompliance. If the case is a civil case, the court, by another subsequent court order, then and only then, dismisses the case. If the appeal is a criminal case, although all designated time limits have been ignored, we generally nevertheless always subsequently consider all the merits of the case. Rarely, if ever, are repeated threatened sanctions of dismissal and contempt considered, or contempt hearings held, whether civil or criminal cases are involved. Our court orders, in contrast to legislative direction, may rightfully appear as “a toothless tiger” and a “fish that cannot swim.” Tanner v. State, 160 Ga. App. 266, 267 (287 SE2d 268) (1981).

Decided February 10, 1989

Rehearing denied February 27, 1989

Billy L. Spruell, for appellant.

Lewis R. Slaton, District Attorney, George J. Robinson, Jr., Joseph J. Drolet, Richard E. Hicks, Assistant District Attorneys, for appellee.

Seemingly, the same equal fairness of either strict scrutiny toward all appeals should obtain, or a similar type of liberal treatment by the court toward all litigants in rendering a decision on the merits of every case sought to be appealed should be our goal. All appellants should be fed out of the same spoon. This might require statutory changes or court-rule modifications allowing for issuing court orders permitting out-of-time perfecting of an appeal by an amendment relating back, secured from the trial court. At this time, the mechanics, whether statutory or by court rule, of out-of-time jurisdictional corrections or perfecting of an appeal by amendments relating back do not exist. With these observations, I respectfully concur in the judgment of the majority opinion in the instant case.


author: Sognier, Judge. Deen, Presiding Judge, Beasley, Judge,

text:
    77930.
    GOLDEN v. THE STATE.
    (379 SE2d 230)
   Sognier, Judge.

Andre Alexis Golden pled guilty on December 22, 1987 to charges of robbery by force and armed robbery upon a negotiated plea and sentence arrangement. He did not move to withdraw his plea but instead appeals directly from the judgment entered on that plea.

The record reveals that appellant was represented by counsel and that the requirements set forth in Rules 33.7 and 33.8 of the Uniform Rules of Superior Courts were followed by the trial court in considering and accepting his plea. Although the trial court did not make a determination concerning the factual basis for appellant’s plea, as urged by Rule 33.9 of the Uniform Rules for the Superior Courts, we have held that it is not necessary that a trial court affirmatively state on the record that it is satisfied that a factual basis for a defendant’s guilty plea exists when the transcript presents evidence that the trial court was aware of the factual basis. Clark v. State, 186 Ga. App. 106, 107-108 (2) (366 SE2d 361) (1988). The plea hearing transcript contains the district attorney’s summary of the evidence the State was prepared to present at appellant’s trial. The summary showed on the robbery by force charge that appellant and Frank Washington accosted Kim Kelsey and forcibly removed sixteen dollars from Kelsey’s possession. Kelsey was able to name both appellant and Washington and describe them because he had previously attended high school with them. On the armed robbery charge, the summary showed that a lone gunman, later identified as Lawrence Williams, entered the rear of a fast food restaurant by giving appellant’s first name. Williams took a bank bag containing approximately two hundred and sixty dollars from the night manager and a restaurant employee. Police investigation revealed that Williams had been in the company of appellant and Washington and that both appellant and Washington had previously been employed at the restaurant. Williams subsequently turned himself in to the police and gave a complete statement outlining not only his participation in the robbery but appellant’s and Washington’s as well. Upon his arrest, Washington also gave a complete statement detailing his participation and that of appellant and Williams. Although appellant denied involvement in the armed robbery, neither of the two acquaintances he claimed he was with at the relevant times corroborated his alibi.

On appeal, appellant does not challenge the validity of the guilty plea, and our review of the transcripts to the hearing included in the record on appeal, see Rule 33.11 of the Uniform Rules of Superior Courts, reveals that appellant made a knowing and intelligent plea of guilty. Rather, appellant asserts he was innocent of the crimes because he was not present at the fast food restaurant when it was robbed, that he did not have a gun, and that he did not drive the getaway car. Appellant also asserts that he was drunk at the time of the crime, that Williams would testify that appellant was asleep at the time of the crime, and that the district attorney was lying about other crimes, prosecutions of which were dropped as part of the negotiations. Appellant asserted his innocence at the time he entered his plea of guilty and the plea hearing transcript reveals that the trial court inquired into and sought to resolve the conflict between appellant’s claim of innocence and the plea he was entering. “Of course, an accused may plead guilty while claiming his innocence if he intelligently concludes his interests are served, and if the record strongly evidences guilt. [Cit.]” Minchey v. State, 155 Ga. App. 632, 633 (1) (271 SE2d 885) (1980). The transcript reveals that appellant pled guilty in a manner the constitutionality of which was sanctioned by the Supreme Court of the United States in North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970). See Clark, supra. Thus, the trial court’s acceptance of appellant’s guilty plea after appellant claimed he was innocent was not error and we find no merit in appellant’s evidentiary assertions contrary to the plea he entered.

Judgment affirmed.

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

Deen, Presiding Judge,

dissenting.

In the notice of docketing dated September 15, 1988, the appellant was instructed by notice and order to file an enumeration of errors and brief within 20 days of the docketing. No such filing having been made, on October 18, 1988, this court again ordered the appellant to file an enumeration of errors and brief by no later than 4:30 p.m. on October 27, 1988. The appellant filed a brief on October 28, 1988, and an enumeration of errors as follows: “Enumeration of Errors: None.” The appellant’s brief thus was a day late and an enumeration short.

The majority opinion addresses matters not even enumerated as error. The appellant failed to comply twice with the instructions of this court, the second time especially being an order specifying that “[fjailure to comply with this order may result in dismissal of the appeal and may also subject the offender to contempt.” Previous-mentioned sanctions of contempt and dismissal are not suggested in the majority opinion. Under the circumstances, rather than discuss matters not even enumerated as error, and in order to feed all appellants out of the same spoon, this court must dismiss the appeal for noncompliance with two orders of this court. See Taylor v. Columbia County Planning Comm., 232 Ga. 155 (205 SE2d 287) (1974).

I also concur fully with the dissent of Judge Beasley, as she makes several good points. The legislative and judicial branches of government are separate but co-equal. Our latter branch of government enhances respect for the former, as we require that all legislative directions to all parties engaged in appeals be strictly adhered to. On the other hand, since we do not require strict compliance with directions of our own judicial branch, Judge Beasley is correct in stating that “it subjects the court to disrespect for not enforcing its orders.” Compare In the Interest of M. O. B., 190 Ga. App. 474 (378 SE2d 898) (1989) (Deen, P. J., concurring specially.) Accordingly, I must respectfully dissent.

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

Beasley, Judge,

dissenting.

Averting, for the sake of current expediency, a well-established procedure which serves the orderly administration of justice, leads to the disrailing of that procedure. Courts keep a vigorous vigil to protect due process as it relates to a defendant’s rights. Similar watchful adherence should be given to procedure as it relates to the public’s rights. The public in Georgia commands orderly administration of the judicial system. Ga. Const. 1983, Art. VI, Sec. IX. The concept of uniformity is expressly included.

The filing rules have the force of law, as provided by the General Assembly. OCGA § 5-6-40. Although the time requirement of the Supreme Court rule was deemed directory in Durham v. Stand-By Labor, 230 Ga. 558, 560 (1) (198 SE2d 145) (1973), that was before adoption of the present constitution. The legislature has not revised OCGA § 5-6-48 (b) or (c) to expand the categories of dismissable appeals, since the effective date of the new constitution, but where there is a violation of a court order regarding filing, “the appeal must be dismissed for failure to comply with the order . . . .” Taylor v. Columbia County Planning Comm., 232 Ga. 155, 158 (205 SE2d 287) (1974). This holding even preceded the new constitution.

Where the court dispenses with prescribed procedure in one case, it entitles others to the same disregard of rules and court orders, else the fundamental principle of equal treatment is disserved and dissolved. Moreover, it subjects the court to disrespect for not enforcing its orders.

The court should examine the results of 1) ignoring its own orders, 2) creating enumerations of error, and 3) automatically reviewing the sufficiency of the evidence in criminal cases whenever a notice of appeal is filed and the case is docketed here. Incongruities are inexplicable. For example, where defendant does pursue the appeal and does so in a timely manner, raising various issues, the court is steadfast in refusing either to allow appellant to enlarge enumerations or to amend the enumerations after the time for filing has expired. Jackson v. State, 186 Ga. App. 847, 848 (3) (368 SE2d 771) (1988). Thus an appellant’s appeal on these points is in effect dismissed.

Such a practice as is illustrated in this case is especially egregious when the appellant states that he has no enumerations of error, that is, nothing to complain about and nothing for this court to review.

I am authorized to state that Presiding Judge Deen and Presiding Judge Banke join in this dissent.

Decided February 22, 1989.

Stephen H. Harris, for appellant.

Spencer Lawton, Jr., District Attorney, Lars T. Granade, Assistant District Attorney, for appellee.


author: Birdsong, Judge. Beasley, Judge,

text:
    77665, 77666.
    TACO BELL CORPORATION v. CALSON CORPORATION; and vice versa.
    (379 SE2d 6)
   Birdsong, Judge.

This is an appeal and cross-appeal from the order and final judgment of the superior court dismissing appellee’s complaint without prejudice.

Appellee Calson Corporation initiated a lawsuit against appellant Taco Bell Corporation seeking recovery of monies allegedly owed under a contract for construction of a restaurant facility by appellee for appellant. Appellant, in its answer, denied liability and asserted a counterclaim for damages, alleging that appellee had breached the construction contract. A jury trial was held, and at the conclusion of appellee’s case-in-chief, the appellant moved for a directed verdict. The motion alleged inter alia that appellee, a nonresident contractor, failed to prove its compliance with the registration and bonding provisions of the Nonresident Contractors Act, OCGA § 48-13-30 et seq. before entering upon performance of the construction contract, and that, accordingly, appellee’s action was barred thereby. The trial judge ruled upon the appellant’s motion, which apparently was still couched as a motion for a directed verdict, and entered a judgment granting the motion and directing dismissal without prejudice. Held-.

Case No. 77665

Appellant’s enumerations of error are that the trial court erred in dismissing the case without prejudice and in not entering judgment on the merits with prejudice, respectively. Certain of the issues raised by these enumerations are of first impression for our court.

Subsequent to the trial judge’s ruling and judgment, a hearing on a motion to amend judgment was held. The trial judge denied the motion to modify, holding that the language of OCGA § 48-13-37 was controlling on its face; that it provided a forum-closing sanction only and did not render the underlying contract void and unenforceable. The trial judge concluded that dismissal of the actions should be without prejudice. We agree.

At the outset, we find that the purpose of the General Assembly in enacting Ga. Code Ann. § 91A-6107, the predecessor statute to OCGA § 48-13-37, was “[t]o the end that the State of Georgia . . . may receive all taxes due in every instance, including contributions due under the employment security law, contractors, who are nonresidents of this state shall register. ...” (Emphasis supplied.) Ga. L. 1961, p. 480. The Supreme Court has recognized that “the Act is not designed to discriminate against non-resident contractors, but to bring them into a parity with resident contractors relative to the compliance with . . . the Georgia Employment Security Law.” Gorrell v. Fowler, 248 Ga. 801, 803 (286 SE2d 13). Thus, the primary purpose for promulgating the Nonresident Contractors Act was that of revenue collection enhancement, and not for the specific protection of the public at large from allegedly unqualified out-of-state contractors. See Code Ann. § 91A-6102 (now OCGA § 48-13-31); 1960-1961 Op. Atty. Gen., p. 545. In fact, resident contractors are not subject to any similar registration and bonding requirements.

The cases cited by appellant, including Weston Funding Corp. v. LaFayette Towers, 550 F2d 710 (2nd Cir. 1977), are distinguishable. Not only do these precedents differ factually from the case sub judice, but most either involve statutes enacted primarily for the protection of the public or involve statutes which impose no significantly different licensing requirements between nonresident and resident business or professional persons as a precondition to doing business in this state, or both.

“ ‘The cardinal rule in the construction of legislative enactments is to ascertain the true intention of the General Assembly in the passage of the law.’ ” George C. Carroll &c. Co. v. Langford Constr. Co., 182 Ga. App. 258, 260 (355 SE2d 756), and then give the statute that construction which will effectuate the legislative intent and purpose. Lively v. Trust, 184 Ga. App. 361, 362 (361 SE2d 516). In ascertaining legislative intent, “it is also fundamental that all of the words of the statute are to be given due weight and meaning . . . and that the court is not authorized to disregard any of the words of the statute . . . unless the failure to do so would lead to an absurdity manifestly not intended by the legislature.” Boyles v. Steine, 224 Ga. 392, 395 (162 SE2d 324). We thus will look first to the entire wording of the statute, but “ ‘ “where the language [of the statute] is plain and unequivocal, judicial [interpretation] is not only unnecessary [it] is forbidden.” ’ ” Dixie Constr. Prods. v. Southeastern Council &c., 183 Ga. App. 101, 102 (357 SE2d 831).

Applying these general principles of statutory construction to the statute in question, we find that statutory noncompliance in registering and bond posting does not render the underlying contract null and void per se. Rather, the penalty for noncompliance imposed by OCGA § 48-13-37 is a forum-closing sanction that closes the courts of Georgia to the offender until such time, if ever, when the offender can substantially comply, within the meaning of OCGA § 1-3-1 (c), with the provisions of the Nonresident Contractors Act. OCGA § 48-13-37; compare with National Heritage Corp. v. Mount Olive &c. Gardens, 244 Ga. 240 (260 SE2d 1); Metric Steel Co. v. BLI Constr. Co., 147 Ga. App. 380 (249 SE2d 121) both of which were cited by the Supreme Court in Gorrell, supra at 802, as examples of cases involving “similar disabilities relative to non-residents falling in different categories [than resident corporations].”

The effect of a forum-closing statute is to deny subject-matter jurisdiction to the courts until such time, if ever, when the statutory impediment is removed. See, e.g., Tucker v. Mitchell, 252 Ga. 545 (314 SE2d 896); Little v. Walker, 250 Ga. 854 (301 SE2d 639). The defense of lack of subject-matter jurisdiction does “not go to the merits of the case but go instead to a reason for the abatement of the case.” Ga. Prac. & Proc. (5th ed.), Motion Practice § 9-3. See also OCGA § 9-11-12 (b) (1); Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614 (208 SE2d 459); International Indem. Co. v. Blakey, 161 Ga. App. 99 (1) (289 SE2d 303). Accordingly, a dismissal entered pursuant to OCGA § 48-13-37 is one of the few involuntary dismissals which does not act as an adjudication on the merits. OCGA § 9-11-41 (b); Little, supra at 855; see generally Ga. Prac. & Proc., supra at § 9-3. The motion for directed verdict in the case sub judice, as it pertained to the issue of forum-closing under OCGA § 48-13-37, fell appropriately into that category of motions or pleas labeled as motions in abatement or dilatory pleas. See, e.g., National Heritage Corp., supra at 244; Metric Steel Co., supra at 383; Ga. Prac. & Proc., supra at § 9-3. It is well-established that “there is no magic in nomenclature, and in classifying pleadings we will construe them to serve the . . . pleader, judging the pleading by its function rather than by its name.” Holloway v. Frey, 130 Ga. App. 224 (3) (202 SE2d 845); Ga. Prac. & Proc., supra at § 9-1. For these reasons, the trial judge did not err in entering an order granting dismissal without prejudice.

Appellant also argues that appellee cannot now meet the requirements of the Nonresident Contractors Act and thus remove the statutory impediment to his use of the courts. Whether appellee could substantially comply with the Nonresident Contractors Act, within the meaning of OCGA § 1-3-1 (c) by late registration, late bond posting and payment of all taxes and revenues due and owing the State is a matter that is not ripe for adjudication. Suffice it to say that if the appellee could not do so, he would continue to be denied access to our courts. However, such impairment, if it does exist, does not alter the effect of OCGA § 48-13-37 as a fórum-closing statute.

Decided February 9, 1989

Rehearing denied February 27, 1989.

Rogers & Hardin, John J. Almond, for appellant.

Stokes, Shapiro, Fussell & Wedge, J. Ben Shapiro, Jr., Michael P. Davis, for appellee.

Case No. 77666

In view of our holding in Case No. 77665, we find the issues raised in Case No. 77666 to be moot.

Motion for transfer of case sub judice to the Supreme Court is denied.

Judgment affirmed in Case No. 77665. Appeal is moot in Case No. 77666.

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

Beasley, Judge,

concurring specially.

I concur fully but note that there should be some mechanism to call this impediment to the attention of the court before the time of the court is wasted in giving attention to the case. The same mid-trial halt occurred in Gorrell v. Fowler, 248 Ga. 801 (286 SE2d 13) (1982). In American Hosp. Supply Corp. v. Starline Mfg. Corp., 171 Ga. App. 790, 793 (2) (320 SE2d 857) (1984), the statutory bar was brought to the attention of the court by defendant’s motion to dismiss or for summary judgment.

The object of the statute is to deny access to Georgia courts to those foreign contractors who fail to register and pay taxes and who seek judicial relief in recovering payment for performance on their contracts, as stated in the opinion. The object is not fulfilled at all, from the standpoint of the courts, when access is given, a long trial proceeds to near completion, and a judgment is foreclosed by an intervening motion based on the absence of a prerequisite to bringing the suit in the first place.

This waste of judicial resources is further exacerbated by the conclusion we have reached, that dismissal without prejudice is proper, thus allowing plaintiff to posture itself so as to be entitled to access to Georgia courts and another trial.

Not only that, but when the law relies solely on defendants for raising the question, access will in fact be given, even to the point of judgment and execution thereon in favor of the non-complying contractor, until and unless defendants are keen enough to present it.

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


author: Sognier, Judge.

text:
    77690.
    BURNETTE v. GEORGIA LIFE & HEALTH INSURANCE COMPANY.
    (379 SE2d 188)
   Sognier, Judge.

June Burnette, guardian of Robert Lee Burnette, a minor, brought suit against Georgia Life & Health Insurance Company to recover benefits allegedly due under an insurance policy issued to Robert Lee Burnette by Georgia Life. After Georgia Life moved for judgment on the pleadings and Burnette filed a motion seeking partial summary judgment, the trial court ruled in favor of Georgia Life on both motions, and Burnette appeals.

The record reveals that on February 7, 1987, Robert Burnette was a passenger in an automobile driven by William Alford, who crossed the centerline and struck another vehicle, injuring Burnette. Appellant made a claim for medical expenses in excess of $18,000 on Burnette’s student blanket accident policy, but appellee denied the claim because the policy excluded losses resulting from “[i]njuries sustained while [the insured] is an occupant of a private automobile . . . being driven in violation of any law or ordinance . . . .”

1. Appellant contends the trial court erred by granting appellee’s motion for judgment on the pleadings and denying her motion for partial summary judgment in the amount of the policy limit ($10,000) on the grounds that the policy exclusion should be read to exclude only continuous violations of the law, not temporary lapses, and that coverage should not be dependent on the fault of the driver.

When the language of an insurance policy defining the extent of the insurer’s liability is unambiguous and capable of but one reasonable construction, the court must expound the contract as made by the parties. Cantrell v. Home Security Life Ins. Co., 165 Ga. App. 670, 671 (2) (302 SE2d 415) (1983). Courts have no more right by strained construction to make an insurance policy more beneficial by extending the coverage contracted for than they would have to increase the amount of coverage. Pennsylvania &c. Ins. Co. v. Heule, 140 Ga. App. 851, 854 (232 SE2d 267) (1976).

Appellant does not contend, and we do not find, that the policy exclusion at issue is ambiguous. Accordingly, we cannot construe the provision to read that the violation of law must exist for a specific period of time, nor can we interpret the policy to cover losses from accidents in which the driver is at fault but the insured is blameless. We must read the exclusion by its plain and ordinary meaning, which means that appellant’s claim is not covered because she admits the Alford vehicle was driven in violation of the law. Thus, we conclude the trial court did not err by granting appellee’s motion for judgment on the pleadings and denying appellant’s motion for partial summary judgment. See generally Boyes v. Continental Ins. Co., 139 Ga. App. 609, 611 (229 SE2d 75) (1976).

Decided February 9, 1989

Rehearing denied February 27, 1989

Hatcher, Johnson & Meaney, Ross L. Hatcher III, for appellant.

Douglas M. Campbell, for appellee.

2. Appellant also contends the exclusion should not be enforced, arguing that a policy provision which denies coverage to a minor insured when the insured is only a passenger in a motor vehicle being driven in violation of the law and has no control over the manner in which the vehicle is driven is void as against public policy. We do not agree.

“ ‘The public policy of this state is created by our Constitution, laws and judicial decisions.’ [Cit.]” Brock v. Guaranty Trust Life Ins. Co., 175 Ga. App. 275, 277 (2) (333 SE2d 158) (1985). We find no established public policy impediment, by way of Constitution or statute or case law, to an insurer applying the exclusion in issue here. See id. Unlike the automobile insurance policy at issue in Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335 (329 SE2d 136) (1985), cited by appellant, the parameters of the instant policy are not prescribed by compulsory motor vehicle insurance statutes. The policy issued by appellee is a limited one designed to provide certain coverage to students engaged in school activities, and there is no requirement that the coverage desired by appellant be provided. Accordingly, we affirm the decision of the trial court.

Judgment affirmed.

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


author: Banke, Presiding Judge. Beasley, Judge,

text:
    77748.
    MARTIN v. THE STATE.
    (379 SE2d 170)
   Banke, Presiding Judge.

The appellant was convicted of cruelty to children (OCGA § 16-5-70) based on evidence that he had attacked and beaten a six-year-old child. He filed this appeal from the denial of his motion for new trial. Held:

1. The appellant contends that the evidence was insufficient to support his conviction in that it failed to establish that the offense was committed in the manner alleged in the indictment. The indictment charged that the appellant did “maliciously cause [the child] cruel and excessive physical pain by slapping him, pulling him off the bed by the hair of the head, hitting him in the face with his fist and choking him. ...” Each and every one of these allegations regarding the actions of the accused was supported by the eyewitness testimony of the child’s mother, which testimony was sufficient, in and of itself, to support inferences that the accused had acted with malice and that his acts had caused the child cruel and excessive physical pain. In addition, one of the arresting officers testified that he had observed a “sandpaper red place” on the side of the child’s head, approximately two inches by two inches in size, which, when “lightly rubbed,” caused the child to “squench[] his eyes as if it was real sore and tender.” Although the state declined to question the child due to concern about whether his competency had been established, the above evidence was amply sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt both that the appellant had committed the offense of cruelty to children and that he had done so in the manner alleged in the indictment. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Tracking the language of OCGA § 16-5-70 (b), the trial court charged the jury that “a person commits the offense of cruelty to children when he maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” (Emphasis supplied.) The appellant contends that because the indictment in this case alleged only physical pain, the court erred in failing to follow up this statutory definition of the offense with an instruction that the state was required to prove the offense was committed in the manner alleged in the indictment.

This enumeration of error is also without merit. An examination of the transcript reveals that shortly after charging the provisions of the Code section, the court did in fact instruct the jury that to find the defendant guilty, they would be required to find beyond a reasonable doubt that he had committed the offense of cruelty to children and that he had maliciously caused the child cruel and excessive physical pain by committing the acts alleged in the indictment. This portion of the court’s charge effectively cured any prejudice to the appellant which might have arisen from the earlier reading of the entire Code section. See Lumpkin v. State, 249 Ga. 834, 835 (295 SE2d 86) (1982). Accord Searcy v. State, 168 Ga. App. 233, 234 (308 SE2d 621) (1983).

3. During the course of their deliberations, the jury expressed confusion over the distinction between the offense of cruelty to children and the lesser included offense of simple battery, which has also been charged. The court responded with the following instruction: “The distinguishing factor between the two is a child 18 years of age and, also, the other elements of excessive or cruel or excessive physical or mental pain, more than what you would normally do to someone, some child, if you had a right to do it.” The court thereupon repeated its charge on simple battery, following which the foreperson stated: “Well, in the word ‘cruelty’ we were in a dissertation upstairs as to whether foul language is cruel treatment of a child.” The court responded as follows: “M’am, I’m going to leave all that to the jury. There is no specific charge on that... We have law on it, but it says ‘causes a child under the age of 18 years cruel or excessive physical or mental pain.’ So you’ve got three things there. It’s up to the jury, a question of fact.”

The appellant complains on appeal that, like the original charge, this recharge was erroneous in that it would have authorized a conviction based on the infliction of mental pain, although the indictment specified only physical pain. However, upon being asked at trial whether he had any objections to the recharge, defense counsel responded as follows: “Judge, one objection for the record. We would object to the court stating to the jury that you could find cruelty to children if you find the act to be over and above what you were entitled to do.” Because counsel thus indicated that he had no other objections to the charge, and because the objection asserted at trial is not the one asserted on appeal, this enumeration of error presents nothing for review. See Rivers v. State, 250 Ga. 303 (7) (298 SE2d 1) (1982); Jolley v. State, 254 Ga. 624 (3), 628 (331 SE2d 516) (1985).

We reject counsel’s assertion that the court’s failure to exclude mental pain as an issue during the recharge constituted such prejudicial error that it could not be waived. See generally OCGA § 5-5-24 (c). The state made no attempt in this case to prove that the crime was committed in a manner other than that alleged in the indictment, nor did the appellant object at any time during the proceedings that the issue of mental pain was being improperly interjected into the case. The state supported the allegation that the appellant had caused the child cruel and excessive physical pain by introducing uncontroverted evidence that he had grabbed the child by the hair, hit him in the face with his fists, and choked him. This was the only version of what transpired, the appellant having presented no evidence whatsoever in his own behalf. Consequently, this is not a case in which the evidence offered in support of the specific allégations set forth in the indictment was weak or in conflict with other evidence suggesting that the crime, if committed at all, was committed in some manner other than that alleged in the indictment. Compare Gaines v. State, 177 Ga. App. 795 (1) (341 SE2d 252) (1986); Robinson v. State, 152 Ga. App. 296 (262 SE2d 577) (1979); Walker v. State, 146 Ga. App. 237 (246 SE2d 206) (1978). Under the circumstances before us, we hold that the asserted error in the recharge cannot be considered so substantial as to obviate the appellant’s affirmative waiver of it in the court below.

Judgment affirmed.

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

Beasley, Judge,

dissenting.

Although I concur in Divisions 1 and 2, I respectfully dissent because defendant is entitled to a new trial due to error in the recharge.

It appears that the jury was uncertain about the law during its deliberations and asked for further instruction. The record does not indicate what the jury’s question was, but the judge later stated his understanding that the jury wanted to know the distinction between cruelty to children and simple battery. .

Based on this understanding, the court had recharged the jury as described in the majority opinion.

In this recharge, the court repeatedly left room for the jury to find defendant guilty based, at least in part, upon a finding of the infliction of mental pain. There was evidence that defendant used foul language in dealing with the child in this incident, exacerbating the situation. It is clear from the foreman’s statement that the jury was considering mental pain. The court did not steer the jury from the misconception evidenced by the jury foreman’s statement. What is more, the court expressly authorized a consideration of this aspect of defendant’s behavior towards the child by repeating that the statute prohibits “cruel or excessive physical or mental pain,” and leaving to the jury the determination of the question of fact.

This was a heightening of the somewhat misleading nature of the original charge. That charge did not clearly point out to the jury that the “mental pain” portion of OCGA § 16-5-70 (b), which the court chose to read to the jury when giving the definition of the crime, was not an alternative basis for conviction in this case. I agree with Division 2 of the majority opinion, that the all-inclusive wording used by the court in the original charge was cured by later referring in that original charge to the narrower language of the indictment, but the reiteration of the more expansive wording when the recharge was given casts a wider net than woven by the indictment.

At the least, it cannot be said that the jury did not regard the mental pain as being a dominant factor in finding the physical pain to be excessive. Allowing the jury to convict on a finding of mental pain runs counter to the indictment. This constitutes a deprivation of a fair trial because defendant was not charged with inflicting mental pain. See Dendy v. MARTA, 163 Ga. App. 213, 219 (3B) (293 SE2d 372) (1982), rev’d on other grounds, 250 Ga. 538 (299 SE2d 876) (1983); Barnett v. State, 178 Ga. App. 685 (1) (344 SE2d 665) (1986); Walker v. State, 146 Ga. App. 237, 243 (2) (246 SE2d 206) (1978); Owens v. State, 173 Ga. App. 309, 312 (4) (326 SE2d 509) (1985).

Decided February 6, 1989

Rehearing denied February 27, 1989

The Garland Firm, Donald F. Samuel, for appellant.

Roger G. Queen, District Attorney, for appellee.

This error is substantial and falls within the rarely occasioned category of OCGA § 5-5-24 (c). Laney v. State, 184 Ga. App. 463, 466 (2) (361 SE2d 841) (1987). Compare Sims v. Johnson, 185 Ga. App. 720 (365 SE2d 532) (1988). The absence of clarity does not relate to a collateral matter, as did the absence of a charge in Burger v. State, 245 Ga. 458 (1) (265 SE2d 796) (1980).

I am authorized to state that Chief Judge Carley and Judge Ben-ham join in this dissent.


author: McMurray, Presiding Judge.

text:
    77763.
    JOHN ALDEN LIFE INSURANCE COMPANY v. MEADE.
    (379 SE2d 181)
   McMurray, Presiding Judge.

Jennifer L. Meade (plaintiff) brought an action against John Alden Life Insurance Company (defendant) and alleged that she is a beneficiary under a group health insurance policy provided by defendant to plaintiff’s employer and that defendant breached this contract by failing to pay plaintiff’s claim for benefits under the group policy. Defendant denied the material allegations of the complaint and contended that plaintiff was not covered under the employer’s group health insurance policy at the time she incurred the medical expenses which form the basis of her claim. The parties filed their respective motions for partial summary judgment to resolve the dispute over the effective date of plaintiff’s coverage under the policy. The following facts are undisputed:

On February 24, 1986, plaintiff began working as a “full time” dental assistant for Dr. Larry L. Dunn. Shortly after plaintiff began work, defendant provided Dr. Dunn and his employees with group health insurance. This coverage became effective on April 15, 1986.

During the early morning hours of April 15, 1986, plaintiff began experiencing severe nausea and abdominal pain. Plaintiff called her physician and he advised plaintiff to appear at his office at 9:00 that morning for an examination. At 8:15 a.m., plaintiff arrived at her place of employment, began performing her normal job functions and, at 8:45 a.m., plaintiff left for her doctor’s appointment. She did not return to work until June 7, 1986.

During the months following April 15, 1986, plaintiff incurred substantial medical expenses for which she claimed benefits under her employer’s group health insurance policy. Defendant denied plaintiff’s claim and, in a letter dated June 23, 1986, referred plaintiff “to [her] John Alden Certificate of Group Insurance, General Provisions, Deferred Effective Dates: ‘If you are not at work on a full-time basis on the effective date shown on the Benefit Summary, or on the effective date of any increase of benefits, your insurance, or any increase in benefits, will not become effective until the date you return to active work on a full-time basis.’ ” Defendant further explained to plaintiff that she was not covered under her employer’s group policy because she was “not at work on a full-time basis on [the] effective date shown on the Benefit Summary[, April 15, 1986].” The trial court rejected this explanation, entered partial summary judgment for plaintiff and declared that plaintiff’s coverage became effective on April 15, 1986. This appeal followed. Held:

“ ‘ “(U)nder Georgia law in attempting to ascertain the intentions of the parties, insurance contracts are governed by the ordinary rules of construction applicable to other contracts. Golden v. National Life & Accident Ins. Co., 189 Ga. 79, 87 ((5 SE2d 198)) (1939). The contract must be examined ‘as a whole’ in attempting to construe any portion thereof. (Cits.) ‘Where the terms and conditions of a policy are unambiguous, the court must declare the contract as made by the parties. . . . Where the meaning is plain and obvious, it should be treated as literally provided therein.’ Genone v. Citizens Ins. Co. of N. J., 207 Ga. 83, 86 ((60 SE2d 125)) (1950) (citations omitted).” ’ United States Fire Ins. Co. v. Capital Ford Truck Sales, 257 Ga. 77, 78 (355 SE2d 428), quoting Garmany v. Mission Ins. Co., 785 F2d 941, 945 (11th Cir. 1986) with approval.” Lamb Bros. Lumber Co. v. South Car. Ins. Co., 186 Ga. App. 51, 53 (366 SE2d 388).

In the case sub judice, Dr. Dunn’s “CERTIFICATE OF GROUP INSURANCE” provided that “insurance begins on the Effective Date shown on the Benefit Summary if [the covered employee is] actively at work on a full-time basis on that date . . . ,” The “BENEFIT SUMMARY” provided an effective date of April 15, 1986, and, the master group policy, of which Dr. Dunn’s group was covered, provided as follows: “If the member is not actively at work on the day he is to become insured, he does not become insured until the day he returns to active work.” Defendant argues that this language required plaintiff to appear at work for a full day on April 15, 1986, in order to invoke coverage on that day. We do not agree.

Decided February 8, 1989.

Rehearing denied February 27, 1989

Douglas N. Campbell, Laura E. Stevenson, for appellant.

Henning, Aitkens, Snellings & Kearns, Stanley T. Snellings, for appellee.

“ ‘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 favorabl(y) 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).” Mag Mut. Ins. Co. v. Gatewood, 186 Ga. App. 169, 172 (1), 173 (367 SE2d 63).

From this perspective, it is apparent that the language of the master group policy and the “CERTIFICATE OF GROUP INSURANCE” merely required “full-time” employees to appear at work, on or after the effective date of the policy, and perform normal job functions to invoke coverage under the policy. Consequently, since the undisputed evidence shows that plaintiff was “actively at work on a full-time basis” on the effective date of the policy, April 15, 1986, the trial court properly granted partial summary judgment in favor of plaintiff.

Judgment affirmed.

Pope and Benham, JJ., concur.

       The “General Provisions” portion of the “CERTIFICATE OF GROUP INSURANCE” provided, in pertinent part, as follows: “If you are not at work on a full-time basis on the effective date shown on the Benefit Summary, or on the effective date of any increase in benefits, your insurance, or any increase in benefits, will not become effective until the date you return to active work on a full-time basis.”