text:
    75640.
    BATEMAN v. THE STATE.
    (366 SE2d 372)
   Sognier, Judge.

Appellant was convicted of armed robbery, aggravated assault and possession of a firearm by a convicted felon. The latter offense was tried separately, after appellant’s trial on the armed robbery and aggravated assault charges. In his sole enumeration of error appellant contends the trial court erred by allowing evidence of a previous conviction, thereby improperly placing appellant’s character in issue.

This issue arose during appellant’s trial for armed robbery and aggravated assault. Dan Worley testified that he was a clerk in a pawn shop and had sold an automatic pistol to appellant about three weeks before the robbery and assault occurred. Worley identified State Exhibit 10 as the firearm transaction form filled out by appellant at the time of the sale. Appellant testified in his own behalf and during cross-examination denied filling out the transaction form. He was then asked by the prosecuting attorney if he had filled out the answer to the question: “Have you ever been convicted in a court for a crime punishable by imprisonment for a term more than one year?” Appellant answered that he did not fill out the form and the prosecuting attorney asked: “But if you did fill that out and put in ‘no,’ would that be the truth or a lie?” Before appellant could answer the court excused the jury and then informed the prosecuting attorney that the question was improper and he would not be allowed to impeach appellant by asking about the truthfulness of answers on Exhibit 10, because it would tell the jury that appellant had been convicted of a prior felony. When the jury returned the court instructed the jurors to disregard the prosecuting attorney’s question as to whether an answer on the form was true or false, because it was not relevant, was not a permissible question, and should be completely disregarded. The court also instructed the jury that it was not concerned with whether or not the answers on the firearms transaction form were true or false.

Decided February 23, 1988.

Jerry C. Gray, for appellant.

Timothy G. Madison, District Attorney, for appellee.

Appellant contends the questions put his character in evidence, and the court erred by allowing such questions. The simple answer to this contention is that the court did not allow the prosecuting attorney to put such evidence before the court; on the contrary, the court stopped the State from presenting evidence of a prior felony conviction. Thus, appellant’s contention is not supported by the transcript. Further, at the hearing on this issue, appellant made no objection to the court’s action and did not move for a mistrial; in fact, appellant’s counsel made no comments whatsoever at the hearing, which consisted entirely of a colloquy between the prosecuting attorney and the court. When the jury returned and was given curative instructions by the court, appellant again made no objection, and it is well settled that this court cannot consider questions raised for the first time on appeal. Tolbert v. State, 180 Ga. App. 703, 704 (3) (350 SE2d 51) (1986).

Judgment affirmed.

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


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    75673.
    POPE v. TRUST COMPANY BANK OF COFFEE COUNTY.
    (366 SE2d 373)
   Beasley, Judge.

Trust Company Bank applied for confirmation of sale of real property under a power of sale, naming Pope as respondent. It alleged: Pope executed, in favor of the bank, a note and a deed to secure debt conveying certain property to secure the note; he defaulted on the note and the bank declared the full amount of the indebtedness due and payable; pursuant to the power of sale in the security deed the bank notified the debtor and advertised the sale of the property for four consecutive weeks immediately prior to the sale, in a newspaper in which sheriff’s sales were advertised; the property was sold to the highest bidder but did not bring the amount due. The application incorporated copies of the notice to debtor and the newspaper advertisement. The bank reported the sale within thirty days and sought a confirmation hearing after notice to Pope.

On the day of the hearing, Pope filed an answer denying that proper notices were given and that the property brought its fair market value at the sale. The issue as to notices was not orally raised during the trial, nor was the answer mentioned.

After the close of the evidence, Pope moved to dismiss the confirmation because there was no evidence that the notices required by OCGA §§ 44-14-162 and 44-14-162.1 were given. The motion was denied and the sale confirmed.

Pope assigns as error the refusal to dismiss the confirmation because of lack of evidence of notice.

Although not every irregularity or deficiency will void the sale, if either the notice or the advertisement does not substantially meet legal requirements, the sale should be set aside. Walker v. Northeast &c. Credit Assn., 148 Ga. App. 121, 122 (2) (251 SE2d 92) (1978). Martin v. Fed. Land Bank, 173 Ga. App. 142 (325 SE2d 787) (1984) aff’d 254 Ga. 610 (333 SE2d 370) (1985), holds that where “no evidence appears in the transcript of the hearing on the confirmation petition tending to indicate either that the sale was properly advertised in accordance with OCGA § 44-14-162 or that the appellant was properly notified of the sale in accordance with OCGA § 44-14-162.1 [sic] . . . the judgment of confirmation must be reversed.”

Here the evidence in this regard was an affirmative response by the assistant vice president of the bank to the question: “[D]id you, through our [bank’s attorney’s] office, cause proper advertisement to take place to sell the property?” This conclusion was insufficient to satisfy the statutory requirement as it did not show the facts establishing proper legal notice. However, this presentation must be examined in context. The bank’s counsel stated that he did not receive a copy of the answer, which was filed in the office of the clerk on the date of the hearing. The certificate recites that it was served by “hand delivering” it to counsel and states his office address. It is not referenced at the hearing, and an inference arises, from counsel’s reliance on the pleadings in his argument on the motion to dismiss, that applicant’s counsel was unaware of the controverting answer.

Decided February 23, 1988.

C. Jerome Adams, for appellant.

Robert H. Preston, for appellee.

In view of the last-minute answer, the filing of which required the bank to establish the particulars of notice to Pope and advertisement, and because no real issue has been urged as to the merits of the confirmation, an outright reversal thereof would be premature and may work an injustice. Accordingly, we reverse with the direction that the court conduct a hearing and decide only the propriety of the notice requirements of OCGA §§ 44-14-162 and 44-14-162.2, after which any party aggrieved by that decision may pursue review of it.

Judgment reversed with direction.

McMurray, P. J., and Sognier, J., concur.

       See OCGA § 44-14-162.2.


author: Birdsong, Chief Judge.

text:
    76135.
    LAFF LINES, LTD. et al. v. DIMAURO.
    (366 SE2d 375)
   Birdsong, Chief Judge.

Appellants, Laff Lines, Ltd. and Sakura Restaurants, Ltd. of Atlanta, filed this action sounding in contract in the State Court of Fulton County, alleging that appellee, Antonio Dimauro was a resident of the Frances Hotel in Atlanta, Fulton County, Georgia, and leased portions of those premises to appellants, warranting the condition of the building. The complaint alleged appellee breached the contract warranties and covenants, requiring appellants to undertake repairs and construction of the building in an attempt to comply with the Atlanta health and building codes. Appellants contend that as a result of the acts of appellee they “incurred and accrued liquidated damages in the amount of . . . ($516,000.00).”

The record does not contain an answer but shows a sworn acknowledgment of receipt of summons and complaint, purporting to contain the signature of Dimauro, one witness, and the jurat of a notary public.

Decided February 23, 1988.

Hirsch Friedman, for appellants.

Glenn Zell, for appellee.

Default judgment was entered on May 26, 1987, in the amount of $516,000. On June 29, 1987, appellee Dimauro filed a motion to set aside the default judgment and to permit him to file defensive pleadings. A hearing was held and testimony taken from Dimauro and other witnesses. Dimauro testified that he had not been served personally and had been a resident of DeKalb County for the past 12 years, but on July 28, 1986, his DeKalb County home burned and he and his family moved into the Frances Hotel in Atlanta for a period of between one week and ten days. Thereafter, he immediately returned to his current home in Stone Mountain, DeKalb County, Georgia. Appellants produced several witnesses who testified that they witnessed Dimauro served personally in the law office of Hirsch Friedman on April 6, 1987 and he was then living in the Frances Hotel. The trial court found that Dimauro was a resident of DeKalb County at the time he was served and vacated the default judgment. Appellant has filed a direct appeal from such judgment and appellee has filed a motion to dismiss the appeal. Held:

The grant of a motion to set aside a default judgment, like the grant of a motion for new trial, leaves the case pending in the trial court below and is not a final judgment. Mayson v. Malone, 122 Ga. App. 814, 815 (178 SE2d 806). Because the judgment is not final, a direct appeal under OCGA § 5-6-34 (a) is not authorized and appellant failed to follow the proper procedure for an interlocutory appeal. OCGA § 5-6-34 (b). Absent a certificate of immediate review and application to this court for authorization to appeal, such direct appeal is premature and must be dismissed. English v. Tucker Fed. S&L Assn., 175 Ga. App. 69 (332 SE2d 365); Walton v. Collins, 172 Ga. App. 736 (324 SE2d 574); Franklin v. Collins, 162 Ga. App. 755 (293 SE2d 364); Notrica v. Southern Bell Tel. &c. Co., 147 Ga. App. 737 (250 SE2d 196).

Appeal dismissed.

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


author: Deen, Presiding Judge.

text:
    75781.
    WILDER v. MACON MANUFACTURING CORPORATION et al.
    (366 SE2d 365)
   Deen, Presiding Judge.

Susan Wilder was injured at work on May 14,1986, when she was knocked into a table when a bolt of cloth fell on her. She gave notice to her supervisor and an immediate appointment was made for her to see a physician, Dr. Clay, from the posted panel of physicians. He treated her for pain in the lower posterior chest and right rib cage and instructed her to return in four days. She returned, however, in two days because she was experiencing severe back pain. The doctor prescribed medication, suggested that she take hot baths and return in five days. When she returned she reported that she was still experiencing pain. She was x-rayed and no fractures were revealed. The doctor prescribed different medication and told her to return in four days. The following day, Ms. Wilder went to her regular physician, Dr. Buafo, for an appointment for treatment for her diabetes which was scheduled prior to her injury. While in his office, she claims that she experienced an episode of back pain which rendered her unable to walk, bend or recline on the examining table. The doctor had her immediately hospitalized and called in another specialist. Ms. Wilder incurred a total hospital and x-ray bill of $2,860.15 in addition to her attending physician’s bill. At no time did Ms. Wilder, her husband, or Dr. Buafo contact the physician who was treating her for her injury. In his admitting and discharge records, Dr. Buafo wrote that he thought it was “appropriate” to admit her to the hospital. The record shows that she did not undergo any radical medical or surgical treatment while she was in the hospital; she received only physiotherapy.

In her workers’ compensation award, the administrative law judge denied her request for payment of medical expenses related to her hospitalization. This decision was adopted by the full board and affirmed on appeal to the superior court upon application of the any evidence rule. This court granted a discretionary appeal to determine if the board erred in finding that Ms. Wilder’s treatment did not fall within the emergency treatment provisions of OCGA § 34-9-201 (c) which provides: “An employee may accept the services of a physician selected by the employer from the panel or may select another physician from the panel. If, due to an emergency or similarly justifiable reason, an inability to make a selection results, the selection requirements of this subsection shall not apply as long as such inability persists. . . . The employer shall not be responsible for the charges for medical services furnished or ordered by any physician or other person selected by the employee in disregard of this subsection.” Appellant contends that the administrative law judge erred in failing to find that an emergency situation existed which brought the claimant within the scope of the above-quoted subsection.

“ ‘An emergency is “an unforeseen occurrence or combination of circumstances which calls for immediate action or remedy; pressing necessity; exigency,” . . .’ [Cit.]” Armstrong v. Allstate Ins. Co., 135 Ga. App. 278, 279 (1) (217 SE2d 486) (1975). The evidence before the ALJ and the Board did not demand a finding that an emergency situation of pressing necessity existed at the time Wilder visited Dr. Buafo’s office. “When there is any evidence to support the Board of Workers’ Compensation’s findings of fact, neither the Superior Court nor the Court of Appeals has authority to substitute itself for the Board as a fact-finding body, and to set aside an award based on the Board’s findings. [Cits.] Every presumption in favor of the validity of the Board’s award should be indulged by the reviewing court. [Cit.]” City of Atlanta v. Walker, 169 Ga. App. 34, 35-36 (311 SE2d 479) (1983).

Decided February 15, 1988

Rehearing denied February 24, 1988

Steven E. Marcus, for appellant.

Robert A. B. Reichert, Susan S. Cole, for appellees.

“On appeal, appellee [employee-claimant] maintains that use of an unauthorized physician was statutorily permissible under the ‘emergency or other justifiable reason’ exception contained in OCGA § 34-9-201 (c). However, the ALJ and the Board both found no emergency or other justifiable reason which would allow appellee to receive treatment from an unauthorized physician at appellant’s expense. Inasmuch as there is evidence to support that finding, we shall not disturb it on appeal.” State of Ga. v. Tungler, 181 Ga. App. 21, 24 (2) (351 SE2d 248) (1986).

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    75812, 75813.
    NATIONAL CONSULTANTS, INC. v. BURT et al.; and vice versa.
    (366 SE2d 344)
   Birdsong, Chief Judge.

Appellees/plaintiffs (hereinafter called Burt and/or Evans) each brought actions against the appellant/defendant, National Consultants, Inc. (hereinafter called National), arising out of an alleged breach of contract between the parties; Burt and Evans were seeking damages for nonpayment of renewal commissions. The cases originally were filed as separate actions in the superior court. After filing its answer, National amended its answer to add a counterclaim for those commissions paid to Burt and Evans, which National alleges were wrongfully claimed by Burt and Evans because they were in breach of their contract with National. The two cases were consolidated and were tried before a jury. The jury returned a verdict in favor of Burt and against National in the amount of $27,000, and in favor of Evans and against National in the amount of $48,816. National filed a motion for a new trial in both cases, and Burt filed her motion for judgment notwithstanding the verdict and motion for new trial. The trial judge denied all of these motions (and had previously denied Burt’s motion for a directed verdict made at the close of the evidence). National has appealed asserting three enumerated errors, including the failure of the trial judge to grant its motion for a new trial. Burt then filed a cross-appeal alleging that the court erred in failing to grant her motion for a new trial and in failing to grant her motion for judgment notwithstanding the verdict. Held:

Case No. 75813 (The Cross-Appeal)

1. The order of the trial judge denying National’s motion for new trial and Burt’s motion for judgment notwithstanding the verdict was filed on July 7, 1987. This order was later amended, on October 12, 1987, to reflect that Burt’s motion for a new trial was also denied, as this fact had been omitted, apparently due to inadvertence, from the original order. National filed its appeal to the order on July 10, 1987, and mailed Burt notice thereof on July 16, 1987. Burt filed her cross-appeal on August 17, 1987, and twice amended it.

OCGA § 5-6-38 (a) pertinently provides that “appellee may institute cross appeal by filing notice thereof within 15 days from service of the notice of appeal by the appellant.” OCGA § 5-6-32 (a) states that “[s]ervice of any . . . notice may be perfected either before or after filing with the clerk . . . and when service is made by mail it shall be deemed to be perfected as of the day deposited in the mail.” Further, OCGA § 9-11-6 (e) provides that “[w]henever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice . . . other than process, upon him, and the notice ... is served upon him by mail, three days shall be added to the prescribed period.” Construing these statutory rules in the manner most favorable to Burt, and further considering that the record before us reflects no time extension for the filing of this cross-appeal within the meaning of OCGA § 5-6-39 (a) (2), we find that the cross-appeal was not timely filed. The cross-appeal therefore is dismissed and will not be considered by this court. OCGA § 5-6-48 (b) (1).

Case No. 75812 (The Main Appeal)

2. Appellant/National’s first enumerated error is that the trial court erred in striking the typewritten portion of the General Agent’s contracts (the two addendums) which were admitted at trial as exhibits of the plaintiff/appellees.

Plaintiff/appellees, Burt and Evans, were originally employed with National pursuant to an agent’s contract commonly referred to as a Career Shop Contract. Pursuant to the terms of the Career Shop Contracts, each agent was to receive, as a commission, 40 percent of the original premium paid on each policy of insurance sold. After the first year premium was paid, they also would receive ten percent of any renewal premiums paid on each policy. Managers in addition were entitled to a five percent “override” of his team’s business. Appellees were guaranteed to receive these renewal commissions for as many years following termination of their employment with National as equalled their years of employment with the company. Thus, under this particular contract, if an agent worked for the company for five years, the agent would be guaranteed receipt of his or her commission from renewal premiums for five years. The Career Shop Contract makes no express reference to and contains no express restriction of agents working for another insurance company, although this apparently was the company policy of National. In August 1983, both appellees signed agency contracts with another company, as they believed their employment with National was in jeopardy. In November 1983, both appellees signed new agent contracts with National. These printed contracts, known as General Agents Special Vested Commission Contracts, contained a typewritten addendum thereto which provides as follows: “It is understood that [Burt/Evans] will receive renewals under her Career Shop Contract for [five years as to Burt] [six years as to Evans] or as long as she does not represent any other insurance company other than United American and must produce thirteen (13) applications per quarter, and does not take any other employment, and does not do anything that is determined to National Consultants.” (Emphasis supplied.) In March 1984, Evans was fired from National, and on March 30, 1984, Burt resigned. Both appellees thereafter made demands for their commissions, but to no avail.

National maintains that appellees grew concerned with their position at National and with certain company policies during the time of their Career Shop contracts. Noting this concern, National asserts that it offered both ladies an opportunity to enter a General Agent’s contract. Appellees maintain that, although they each signed a General Agent’s contract and shortly thereafter an addendum, the addendum was signed by Evans, who felt compelled to sign it, and by Burt while she was upset. The evidence is in conflict as to whether the addendums were physically attached to the General Agent’s contracts. The addendums were not prepared by an attorney. Appellee Evans testified that in response to her question concerning the scope of the typewritten addendum she was first informed that she could do no volunteer work but then was told she could do volunteer work but could not work any place else. Each addendum was substantially similar and on its face modifies paragraph 17 of the General Agent’s contracts. Paragraph 17 pertinently provided that “any commissions or renewal commissions due or to become due the agent under any previous contracts or agreements shall not be affected hereby.”

At the conclusion of the evidence, the trial judge ruled that the addendum in each of the appellees’ General Agent’s contract is illegal, as it is in restraint of trade and contrary to Georgia law. The court concluded that as the addendum is contrary to law it therefore did not raise “a contract issue that can be presented as a factual dispute to a jury,” and further that “the [appellees] as a matter of law were not in breach [of contract] at the time of the execution of the contract, because the [addendum’s] provisions that [National] urges they were in breach of [are] contrary to law.” Subsequently, the trial judge stated that “the addendum is not adjusted as to time, as to place, as to territory, and that it totally prohibits either of these women from seeking any further employment. . . [a]nd that it is conjunctive, not disjunctive.”

The Georgia Constitution declares that any contract or agreement which “may have the effect of or which is intended to have the effect of defeating or lessening competition” is unlawful and void. Ga. Const. 1983, Art. Ill, Sec. VI, Par. V. Further, OCGA § 13-8-2 in part provides that: “(a) A contract which is against the policy of the law cannot be enforced. Contracts deemed contrary to public policy include but are not limited to . . . (2) Contracts in general restraint of trade. . . .” (Emphasis supplied.)

It is well settled contract law that the parties thereto are free to contract about any subject matter, on any terms, unless prohibited by constitutional law, statutory law, or public policy. See Petroziello v. U. S. Leasing Corp., 176 Ga. App. 858, 860 (338 SE2d 63). However, under the facts of this case, if the addendums are determined even to be in partial restraint of trade they could not meet the “rule of reason” (test of reasonableness) to which this court referred in Club Properties v. Atlanta Offices-Perimeter, 180 Ga. App. 352 (3) (348 SE2d 919), particularly as the addendums are not reasonably limited either as to the scope of territorial applicability (the restrictions appear to be enforceable worldwide), or as to the nature of the proscribed activities (all conceivable forms of other employment are restricted). See generally McNeal Group v. Restivo, 252 Ga. 112 (311 SE2d 831) (restrictive covenant invalid which in effect prohibited employee from work for any competitor in any capacity); Ward v. Process Control Corp., 247 Ga. 583 (277 SE2d 671) (covenant held to be unreasonable regarding the scope of the prohibited business activities); Horne v. Drachman, 247 Ga. 802, 805 (280 SE2d 338) (covenant prohibited employee from being an employee in any capacity with a competitor); Howard Schultz & Assoc. v. Broniec, 239 Ga. 181 (236 SE2d 265) (territorial restrictions too broad).

Scrutiny of the addendums signed by Burt and Evans reveals that they do not mirror provisions previously held by our courts to be in general or partial restraint of trade. Rather, these addendums contain contract provisions which impose certain conditions on the receipt of commissions based on the future renewals of policies sold by or credited as being sold by Burt and Evans. In Sheppard v. Columbus Pkg. Co., 146 Ga. App. 202 (245 SE2d 887), this court held that “a provision of a contract which imposes as a condition to the recovery of benefits under a deferred compensation plan that the employee refrain from engaging in competitive employment is not violative of public policy as being in restraint of trade.” (Emphasis supplied.) Id. at 203. Thus, if the restriction in the contract does not preclude the employee from engaging in competitive activity, but simply provides for the loss of rights or privileges if he does so it is not in restraint of trade. Brown Stove Works v. Kimsey, 119 Ga. App. 453 (2) (167 SE2d 693). These cases are based on the precedent contained in the Supreme Court case of Collins v. Storer Broadcasting Co., 217 Ga. 41 (2b) (120 SE2d 764). In Collins, it was held that a contract which in effect provided for the forfeiture and divestment of profit sharing rights in the event the employee engaged in certain competitive employment within a three-year period following his termination of employment, was not in violation of public policy as being in restraint of trade. The Supreme Court noted that “this contract was entered into solely as a condition precedent to his becoming a participating employee member of the profit sharing plan, and that the employer has neither taken nor threatened to take any action against the plaintiff by reason of the contract.” Id. at 50-51. Applying this precedent to the case at bar, we are satisfied that the addendums, as properly interpreted, did not contain any provision which in the classic sense was either in general or in partial restraint of trade. Rather, the addendums primarily provided for a conditional forfeiture of certain previously vested rights to commissions that were to be based on a percentage of those future renewal premiums paid on policies already sold or credited to Burt and Evans.

While we find that the addendums, as written, do provide for a conditional forfeiture of benefits within the meaning of Sheppard, Brown Stove Works, and Collins, the terms of the addendums differ significantly from the contract provisions considered in these cases. In each of the three cited cases, the contract provisions contained some type of restriction from engaging in competitive employment or activity. The degree of specificity of the restrictions varied in each case, but the contract restrictions all related to the prevention of activity or employment that could be in competition with the employer. In the addendums under consideration, however, the restriction on employment is of the broadest nature. What is prohibited in the addendums before us is any type of employment worldwide for an ill-defined period of probably five and six years, respectively.

The “freedom of individuals to contract” is part of the basic liberties enjoyed by the citizens of this state and should not be interfered with in the absence of clear necessity. So important is this freedom that our legislature is prohibited from passing laws impairing the obligation of contract. Ga. Const. 1983, Art. I, Sec. I, Par. X. And, in our judiciary the law is well settled “ ‘ “that contracts will not be avoided by the courts as against public policy, except ‘where the case is free from doubt and where an injury to the public interest clearly appears.’ ” ’ ” Porubiansky v. Emory Univ., 156 Ga. App. 602, 603 (275 SE2d 163), affirmed 248 Ga. 391 (282 SE2d 903), citing Cash v. Street & Trail, 136 Ga. App. 462, 465 (221 SE2d 640). “A contract cannot be said to be contrary to public policy unless the General Assembly has declared it to be so, or unless the consideration of the contract is contrary to good morals and contrary to law, or unless the contract is entered into for the purpose of effecting an illegal or immoral agreement or doing something which is in violation of law.” Id. at 603. Further, “the courts must exercise extreme caution in declaring a contract void as against public policy and should do so ‘only in cases free from doubt.’ ” Emory Univ. v. Porubiansky, 248 Ga. at 393.

In OCGA § 13-8-2, the General Assembly declared that any contract which is against the “policy of the law” of this state is unenforceable. By specifically providing in this same statute that the types of contracts which are deemed to be contrary to public policy “include but are not limited to” those types listed therein, the General Assembly clearly evidenced its legislative intent that our courts would not enforce any contract provision found to be contrary to public policy, within the meaning of OCGA § 13-8-2, whether or not it was of the exact category of contracts listed in subsections (a) (1) through (5) and (b) of the statute. While this statutory provision places a responsible burden upon the courts, it does not give them carte blanche authority to declare at will any contract to be violative of public policy. The courts should, wherever possible, avoid establishing public policy, unless the need and principle involved is clear and convincing. Porubiansky v. Emory Univ., 156 Ga. App. at 610, supra (Deen, C. J., concurring specially). Thus, each case requiring public policy considerations must be carefully weighed on its own merits, and by applying the appropriate legal guideline to the particular facts presented to the court.

The covenant contained in each addendum is a form of forfeiture provision. It is a well-established rule that forfeiture of rights under valid legal contracts is not favored under the law. Cf. Waldrop v. Bet tis, 223 Ga. 715, 720 (157 SE2d 870) (contract forfeiture clause). Further, in the addendums under consideration, the employees are required, in part, either to forego any type of employment or to forfeit certain vested rights to future commissions. Such ultrabroad, anti-employment provisions clearly raise serious questions of public policy principle. Accordingly, we will carefully examine these particular covenants to determine whether such agreements are in violation of public policy.

The long-term effect of condoning this type of ultrabroad forfeiture provision is clear. Such provisions would tend to encourage citizens who need to be gainfully employed to refrain from seeking such employment in order to obtain whatever benefits they otherwise would forfeit under the terms of their particular contract. Further, we recognize two additional factors. The first is the unequal bargaining position of most employees when negotiating employment contracts. See generally Rash v. Toccoa Clinic Med. Assoc., 253 Ga. 322, 325 (320 SE2d 170). Secondly, in this case, the employer, National, has either no significant business interest or a substantially reduced business interest in prohibiting Burt and Evans from engaging in subsequent noncompetitive forms of employment. In fact, the transcript reveals that National, through its counsel, expressly declined at trial to present evidence to “show that there are good reasons why somebody ought not be allowed to have another job.”

Balancing all of the above considerations against the basic freedom to contract enjoyed by the citizens of this state, we find that the type of ultrabroad forfeiture provision, found in these particular addendums, clearly could cause injury to the public interests of this state. We further find that the evidence adduced at trial establishes that the meaning of offending provisions contained in the addendums is not ambiguous and is free from doubt.

We conclude that the provision in each addendum prohibiting Burt or Evans from engaging in “any other employment” is contrary to the public policy of this state and therefore unenforceable. OCGA § 13-8-2 (a). Accordingly, we find that the trial judge did not err in his ruling that the addendums contained provisions contrary to public policy, and it matters not that his determination primarily was grounded on a finding that each addendum provision was in restraint of trade. A correct decision of the trial court will not be reversed, regardless of the reasons given therefor. Coker v. City of Atlanta, 186 Ga. 473 (1) (198 SE 74).

3. Appellant National’s second enumerated error is that the trial court erred in striking the typewritten portion (the addendums) of the General Agent’s contracts and then allowing the remainder of each contract to remain in effect to the prejudice of the defendant.

The “blue-pencil theory of severability” has not been viewed with favor in cases involving covenants in restraint of trade in employment contract cases, because “[i]f severance is generally applied, employers can fashion truly ominous covenants with confidence that they will be pared down and enforced when the facts of a particular case are not unreasonable.” Rita Personnel Svcs. v. Kot, 229 Ga. 314, 317 (191 SE2d 79). This same general policy appears equally applicable to the situation before us. Nevertheless, OCGA § 13-1-8 provides that: “(a) A contract may be either entire or severable. In an entire contract, the whole contract stands or falls together. In a severable contract, the failure of a distinct part does not void the remainder, (b) The character of the contract in such case is determined by the intention of the parties.”

As a general rule of construction, in cases involving the issue of severability, “ ‘ “[w]here an instrument in writing, purporting to be a bilateral contract, contains mutual promises, which without more and when taken independently of certain subsidiary provisions in the instrument would render the instrument valid as a contract, such subsidiary provisions will not, unless their terms imperatively demand it, be given a construction that will nullify and completely destroy the entire obligations of either party under the instrument and thus render the instrument lacking in mutuality and void.” [Cits.] “The rule is that where an agreement consists of a single promise, based on a single consideration, if either is illegal, the whole contract is void. But where the agreement is founded on a legal consideration containing a promise to do several things or to refrain from doing several things, and some only of the promises are illegal, the promises which are not illegal will be held to be valid.” ’ ” O. H. Carter Co. v. Buckner, 160 Ga. App. 627, 628-629 (287 SE2d 636), and cases cited therein; see Department of Transp. v. Brooks, 254 Ga. 303 (1) (328 SE2d 705).

However, under the dictates of OCGA § 13-1-8, the “primary task” in determining contract severability remains that of ascertaining the intention of the parties. Kem Mfg. Corp. v. Sant, 182 Ga. App. 135, 140 (355 SE2d 437). Specifically, it must be ascertained if the parties in the case at bar intended that “the entire [General Agent’s] agreement be premised upon the validity of the covenants] ” contained in the so-called addendum. Horne v. Drachman, supra at 806.

The evidence in this case clearly would support a finding that the parties intended for the printed provisions in the General Agent’s contract to be enforceable independently of the covenants contained in the addendum. Although neither the main body of the contract nor its addendum contained a severability clause, this factor, while significant in determining the parties’ intent, is not per se dispositive of the severability issue. It is the testimony of the parties in this case that is most persuasive in the resolution of their intent. Burt and Evans both testified concerning their desire to obtain a General Agent’s contract. However, after their signing of the main body of this contract, they were unexpectedly presented by National’s president with the nonstandard typewritten addendum. Burt testified that she signed the addendum when she was “upset,” and Evans testified that she signed it believing she had “no choice.” It is clear from the totality of their testimony that neither Burt nor Evans intended for the addendums to be a nonseverable part of their General Agent’s contracts. Rather they executed these supplements to their contract believing that National would not otherwise give them General Agent status. The president of National testified that National “wouldn’t have a Career Shop if I let people go from the Career Shop to a general agent’s contract and not have some restrictions for them to continue to receive all the benefits of working with the Career Shop.” However, he also testified that the addendums were drafted to benefit Burt and Evans by providing a means for them to continue to earn renewal commissions; that Burt and Evans had a choice whether to sign the addendums; and, that “[t]hey could have signed just this [General Agent’s] contract. . . . They had that choice.” The inference, which can be drawn from this testimony, is that National too intended that the addendums would be severable from the main body of the General Agent’s contracts.

We are satisfied, based on the posture of the evidence, that the trial judge did not err in declining to rule as a matter of law that the General Agent’s contracts were invalid.

4. Appellant’s third assignment of error is that the trial court erred in failing to grant a new trial on the general grounds in view of the fact that the jury’s verdict was contrary to the law and to the evidence in two instances: First, that Burt and Evans were in breach of the General Agent’s contracts and therefore should not have been allowed to recover damages under that contract; secondly, that Burt and Evans failed to introduce any competent evidence upon which the jury could base a concrete, nonspeculative award of damages. Appellant’s claim of breach of contract primarily is based on allegations that Burt and Evans violated the terms of the addendum. As the addendum is null and void, failure to comply with its terms cannot form the basis of a legitimate breach of contract claim. Appellant also asserts that Burt was in breach of paragraph 15 of the General Agent’s contract, which pertinently provides for the forfeiture of renewal commissions in the event the agent “induce [s] any policyholder to lapse, relinquish or surrender a policy with United American . . .” (National’s agents sell United American policies). In support of this assertion, National relies upon the testimony of Burt wherein she admits to selling other insurance policies to 100 or more United American policyholders. This testimony does not establish a breach of paragraph 15. The mere act of selling another company’s insurance policy to a policyholder of United American does not establish that the policyholder was induced in any manner to lapse, relinquish or surrender the United American policy. In fact, many people own and renew insurance policies issued by more than one insurance company. Breach of contract cannot be established by speculation alone.

We also find that appellant’s claim that Burt and Evans have failed to introduce adequate evidence upon which the jury could base its award of damages is without merit. It is true that “[djamages growing out of a breach of contract, in order to form the basis of a recovery, must be such as can be traced solely to the breach, must be capable of exact computation, must have arisen naturally and according to the usual course of things from such breach, and must be such as the parties contemplated as a probable result of the breach.” Leader Nat. Ins. Co. v. Smith, 177 Ga. App. 267, 279 (339 SE2d 321); Lankford v. Trust Co. Bank, 141 Ga. App. 639, 641 (234 SE2d 179). An award of damages cannot be based on guesswork. Lingo v. Kirby, 142 Ga. App. 278 (236 SE2d 26). However, where the damages awarded are “within the range of the conflicting testimony,” this court will not reverse the judgment. See Campo Constr. v. Stembridge, 138 Ga. App. 555, 557 (226 SE2d 797); Department of Transp. v. Gunnels, 175 Ga. App. 632, 636 (334 SE2d 197).

The jury awarded Burt the sum of $27,000 for commissions due between the date of her resignation and the end of the month of June 1986; and awarded Evans the sum of $48,816 for commissions due between the date of her firing and the end of the month of June 1986.

A certified public accountant testified on behalf of Burt and Evans as to the amount of damages suffered by their loss of commissions. This expert witness calculated an amount of renewal commissions allegedly owned by National to both Burt and Evans. The calculations of the expert were based on certain computer records, which were available only for a period which terminated at the end of June 1984, and on a mathematical formula used to determine the amount of commissions allegedly due after the end of June, a period of time for which the expert had no access to computer records. The appellant/defendant vigorously cross-examined this expert and produced the testimony of two witnesses in an attempt to further discredit his testimony.

We are satisfied that the award of damages by the jury falls within the range of damages established by the testimony of this expert, and that the award of only $27,000 to Burt can be satisfactorily explained as the jury’s honest attempt to follow the trial judge’s instructions concerning the rule for ascertaining damages, witness credibility and expert witness testimony. While the exact method which the jury used to arrive at its results may not be readily identifiable, their award clearly is within the range of damages testified to and calculated by the expert, as this range starts with $0 and either is equal to or exceeds the amount of the jury’s award as to each appellee/plaintiff. Further, we note that the contents of plaintiffs’ exhibits 8 and 10 were not forwarded by the appellant for our consideration, notwithstanding the expert’s use of certain information contained therein in arriving at his opinions.

Decided February 8, 1988

Rehearing denied February 24, 1988

Thomas J. Browning, Jerry A. Landers, Jr., for appellant.

George W. Carreker, for appellees.

Judgment in Case No. 75812 affirmed. Appeal in Case No. 75813 dismissed.

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


text:
    75853.
    EVANS v. THE STATE.
    (366 SE2d 325)
   Deen, Presiding Judge.

Appellant Evans was indicted for burglary, aggravated assault, making terroristic threats, and possession of a firearm by a convicted felon, all in connection with the burglary of a residence and the subsequent shooting of one of the occupants. He was acquitted on the burglary charge but convicted on the remaining three charges and sentenced to fifteen years’ confinement. After denial of his motion for new trial on the general grounds, he appeals to this court, enumerating as error the denial of his motion for mistrial, together with the general grounds. Held:

1. A careful examination of the record indicates that appellant’s enumeration of the general grounds is without merit. The evidence is sufficient to authorize the rational trier of fact to find appellant guilty as charged of the offenses of aggravated assault, uttering terroristic threats, and possession of a firearm by a convicted felon. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant assigns error to the denial of his motion for mistrial, predicated on an allegedly improper remark made by the prosecutor in reference to the voluntariness of statements made to police officers by the defendant. The argument advanced by appellant as the basis for the motion for mistrial, and for the enumeration of the denial as error, is that, if it is improper under OCGA § 17-8-57 (former 17-8-55) for the trial court to express an opinion on the evidence, it is eminently more improper for the prosecuting attorney to do so. The Supreme Court of Georgia has expressly held that the strictures the cited statute imposes upon the court do not apply to the prosecuting attorney. See Allen v. State, 194 Ga. 178, 184 (21 SE2d 73) (1942). Moreover, as the transcript reveals and appellant concedes, the trial court instructed the jury fully as to its prerogative of determining the voluntariness of a statement by the defendant, as well as of assessing the credibility of witnesses and the weight to be given their testimony. We find no merit in this enumeration.

Decided February 3, 1988

Rehearing denied February 24, 1988

Carl Greenberg, for appellant.

Robert E. Wilson, District Attorney, James M. McDaniel, Helen A. Pryles, Assistant District Attorneys, for appellee.

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: McMurray, Presiding Judge.

text:
    75289.
    WACO FIRE & CASUALTY INSURANCE COMPANY et al. v. ROBERSON.
    (366 SE2d 376)
   McMurray, Presiding Judge.

The tort action was filed on behalf of Richard R. Roberson by his wife and next friend Bessie G. Roberson. The complaint alleged that plaintiff Richard R. Roberson was injured when his automobile collided with a vehicle negligently operated by defendant Nichols, acting as the agent, employee or servant of defendant Perkins Timber Company. Defendant Eddie Perkins and defendant Perkins Hardwood Lumber Company were added as parties in an amended complaint which alleged that these additional defendants and defendant Perkins Timber Company conspired to deplete the assets of defendant Perkins Timber Company. The United States of America intervened to recover the value of certain medical and hospital care furnished Richard R. Roberson by virtue of his status as a veteran.

Waco Fire and Casualty Insurance Company (Waco) had issued a policy of liability insurance to defendant Perkins Timber Company and was allowed to intervene and deposited $100,000 into the registry of the trial court as a tender to plaintiff, such sum to be transmitted to plaintiff upon a determination of the liability of defendant Perkins Timber Company and defendant Nichols. As requested by Waco, the trial court ordered that the funds received into the registry of the court from Waco be deposited in an interest-bearing account.

Upon the trial of the case, the jury returned a verdict in favor of plaintiff and against defendant Nichols and defendant Perkins Timber Company in the sum of $1,500,000. Judgment followed the verdict. From the funds deposited in the registry of the trial court, $10,000 was distributed to the United States of America as full and final payment for its claim arising from the treatment of plaintiff Richard R. Roberson.

Plaintiff moved for the distribution of the funds remaining in the registry of the trial court (including interest) after the distribution of $10,000 to the United States of America. Waco opposed plaintiff’s motion for distribution on the grounds that plaintiff was not entitled to the accrued interest on the deposited funds. Waco argued that its liability was limited by the insurance policy to $100,000 so that the accrued interest was the property of Waco and not plaintiff. The trial court ruled that the clerk of the trial court pay to plaintiff all sums remaining in the registry of the trial court plus any interest which had been earned on said funds from the time said funds were deposited into the registry of the trial court. Waco appeals, contending the trial court erred in awarding to plaintiff the interest accrued on the funds deposited into the registry of the trial court. Held:

The obligation of Waco to pay a sum of money in the case sub judice is a matter governed by the contract between Waco and its insured. Thus, our review of whether the trial court erred in directing distribution of the interest earned on the funds deposited in the registry to plaintiff must include consideration of the insurance contract.

Unfortunately, a complete copy of the insurance contract is not present in the record designated by Waco. While the record does include an endorsement to the policy apparently limiting the liability of Waco to $100,000, there is nothing indicating when this liability would attach. Nor can we speculate as to whether the portions of the insurance policy included in the record are superseded by portions of the contract omitted from the record. Thus, we cannot state, without speculation as to the terms of the absent insurance contract, that the trial court erred in ordering distribution of the interest earned to plaintiff.

Waco has failed to show error affirmatively by the record, therefore, we presume the trial court’s order of distribution was correct. Brown v. Frachiseur, 247 Ga. 463, 464 (277 SE2d 16); Doster v. Central of Ga. R. Co., 177 Ga. App. 393, 400 (7) (339 SE2d 619); King v. Skinner, 101 Ga. App. 102, 103 (2) (112 SE2d 789); Saliba v. Saliba, 201 Ga. 681, 682 (1) (40 SE2d 732). A decision right for any reason will not be set aside. Dorminy v. Dorminy, 242 Ga. 326 (249 SE2d 49).

Judgment affirmed.

Sognier and Beasley, JJ., concur.

Decided February 24, 1988.

Bobby T. A. Jones, Michael L. Chidester, for appellants.

James G. Johnson, Jr., Billy N. Jones, for appellee.


text:
    75371.
    JEFFERSON v. THE STATE.
    (366 SE2d 399)
    Decided February 24, 1988.

      Jack E. Carney, Jr., for appellant.

      Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant appeals her convictions for possession of heroin and theft by receiving stolen property. Held:

In her sole enumeration of error, defendant contends the trial court erred in “refusing to allow [her] the opening and concluding arguments to the jury.”

“Generally, if the defendant in a criminal case introduces no evidence at trial, he is entitled to present arguments to the jury both before and after the state makes its argument. Code Ann. § 27-2201 [now OCGA 17-8-71]. This right is not forfeited when the defendant testifies in his own behalf, provided he introduces no other evidence. Code Ann. § 38-415 [now OCGA § 24-9-20 (c)].” McDuffie v. Jones, 248 Ga. 544, 546 (2) (283 SE2d 601).

In the case sub judice, defendant presented evidence through the testimony of her co-indictee, Michael David Palmer, who pled guilty to the charges of the indictment prior to trial. Consequently, defendant forfeited her right to make an opening and concluding argument by introducing testimony other than her own at trial. The trial court did not err in allowing the State to open and close during summation. See William W. Daniel, Ga. Criminal Trial Practice (1986 ed.), § 23-2.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


author: Benham, Judge.

text:
    75447, 75452.
    BURROUGHS v. THE STATE (two cases).
    (366 SE2d 378)
   Benham, Judge.

In Case No. 75447, appellant seeks reversal of a conviction for rape. In Case No. 75452, he seeks reversal of a conviction for rape and aggravated sodomy. The offenses involved different victims and were committed at different times, but were related in that the victim in each case testified against appellant in the other prosecution, and in that the motions for new trial were consolidated. Though the issues in each case must, with the exception of the denial of the consolidated motions for new trial, be dealt with separately, we will treat these cases as consolidated.

Case No. 75447

1. Appellant’s first enumeration of error in this case is that the evidence is insufficient to support his conviction for rape. The State’s evidence authorized the jury to find that while appellant and another young man were walking three young women (the prosecutrix, her sister, and a friend) home from a party late one night, the other young man took hold of the prosecutrix and led her down to some railroad tracks; that appellant suggested that one or both of the other girls commit an act of sodomy; that upon their refusal and hurried departure, he followed the other man and the prosecutrix; that after the first man raped the victim, appellant followed suit, and then walked her back to meet her sister and friend. The victim from Case No. 75452 testified that appellant raped her and forced her to commit an act of oral sodomy, telling her as he began the assault that he had raped another girl in the same area. That evidence was sufficient for a rational trier of fact to find that appellant was . guilty beyond a reasonable doubt of the offense of rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Banks v. State, 179 Ga. App. 798 (348 SE2d 124) (1986).

Although there were certainly conflicts in the evidence and some question about the veracity of various witnesses, the conflicts in the evidence did not demand appellant’s acquittal. “The credibility of a witness is a matter for the trier of fact, and this court will not disturb the jury’s finding unless it is insupportable as a matter of law. [Cit.] Since we do not find that to be the situation in the case at bar, we will not disturb the jury’s finding.” May v. State, 179 Ga. App. 736 (1) (348 SE2d 61) (1986).

2. The admission of the testimony of the victim in Case No. 75452 is enumerated as error. “Evidence of similar transactions or crimes is admissible when it is shown that the defendant is the perpetrator of the similar offense, and there is sufficient similarity between the independent crime and the offense charged that proof of the former tends to prove the latter. [Cit.] Evidence of independent crimes has been admitted to show bent of mind and course of conduct, and has been most liberally extended in the area of sexual offenses.” Davis v. State, 180 Ga. App. 190 (2) (348 SE2d 730) (1986). Here, there was an unequivocal identification of appellant as the perpetrator, and the circumstances and location of the offenses were very similar. We find no error in the admission of evidence of the other offense.

3. In the course of a colloquy concerning the admissibility of evidence of another offense, the trial court articulated one of the reasons for which such evidence could be admitted. Appellant now contends that the trial court’s statement was an impermissible comment on the evidence. Even if appellant had objected, which he did not, and the jury had been present, which it was not, the remark would not have been erroneous: “ ‘The statutory inhibition (OCGA § 17-8-55) against an expression or intimation of opinion by the trial court as to the facts of the case does not generally extend to colloquies between the judge and counsel regarding the admissibility of evidence.’ [Cits.] The comment at issue clearly falls into this category and thus did not give rise to any prejudicial error.” Havard v. State, 175 Ga. App. 798, 799 (334 SE2d 381) (1985).

4. Appellant’s co-defendant in this case made a motion for severance. The grant of that motion while the trial was underway is enumerated as error, as is the trial court’s denial of appellant’s motion for mistrial.

When evidence of a similar crime was introduced, the victim of the other crime recounted that appellant boasted that he had raped another girl in the same place. No reference was made on direct examination to the fact that the rape of which appellant was alleged to have boasted was the one for which he and his co-defendant were on trial in the present case. On cross-examination, however, appellant’s counsel phrased a question in such a way that it not only made it apparent that the witness was speaking of the rape involved in the present trial, but also brought appellant’s co-defendant’s involvement into the open. By doing so, appellant’s counsel robbed of any force the trial court’s direction to the jury to consider the evidence against appellant only.

“The granting or denial of a motion for severance of the trials of defendants jointly indicted for less than a capital offense is a matter within the sound discretion of the court. [Cits.]” Griggs v. State, 181 Ga. App. 618 (5) (353 SE2d 97) (1987). Under the circumstances here, including the fact that it was appellant’s own counsel who made severance of the co-defendant necessary by connecting the co-defendant to the testimony of the witness, and considering the trial court’s neutral explanation of the co-defendant’s absence, we find no abuse of discretion in severing the defendants or in denying appellant’s motion for mistrial made following the trial court’s explanation.

5. After the evidence had closed, the trial court undertook an examination, outside the presence of the jury, of a person alleged by courtroom personnel to have been engaged in a disturbance in the courtroom: a deputy sheriff testified that the spectator had been making faces. It developed that the woman involved was a friend of all the principals, and had gone into the jury room during a recess in order to speak to the prosecutrix and her sister. After ascertaining that there had been no improper communication, the trial court cautioned everyone present that it would not permit intimidation of witnesses. Appellant’s counsel moved for a mistrial at several points during the inquiry, and now enumerates as error the denial of his motions. If appellant means to appeal from the denial of his motion for mistrial based on a violation of the rule of sequestration, that issue is without merit since the conversation between a witness and a spectator is not such a violation. Kirkland v. State, 173 Ga. App. 687 (3) (327 SE2d 808) (1985). Appellant’s related complaint on appeal, that the inquiry was conducted for the purpose of chastising defense counsel, is also without merit since there is no support for it in the record.

Case No. 75452

6. Appellant’s first enumeration of error in this case is that the trial court erroneously denied his motion for mistrial after the prosecuting attorney made improper remarks during the State’s opening statement. Although the statement was not transcribed, it appears that appellant’s objection is to the prosecuting attorney’s declaration during his opening statement that he expected the victim to testify that appellant had told her at the time he raped her that he had raped another girl in the same place.

A prosecuting attorney, in an opening statement, “may state what he expects in good faith a witness will testify if the witness is going to testify. [Cit.]” Brantley v. State, 177 Ga. App. 13 (1) (338 SE2d 694) (1985). Appellant was aware that the State intended to put on evidence of a similar offense and was aware that the trial court was going to consider the admissibility of such evidence immediately after opening statements were made. In light of that fact and the fact that the testimony to which the prosecuting attorney referred was clearly admissible as part of the res gestae (Wolke v. State, 181 Ga. App. 635 (2) (353 SE2d 827) (1987)), we find no error in the trial court’s denial of appellant’s motion for mistrial.

7. Appellant next asserts that the trial court erred in permitting the State to elicit testimony in narrative form from the victim and in allegedly ridiculing counsel for objecting to that testimony and to leading questions. We find no such error.

A trial court has discretion to allow leading questions, and its decision to do so will not be reversed unless that discretion is abused. Anglin v. State, 173 Ga. App. 648 (3) (327 SE2d 776) (1985). Under the circumstances here, where the prosecuting attorney was questioning a youthful prosecutrix in a rape case, we find no abuse of discretion.

Appellant offers no authority concerning the propriety of narrative testimony, but we note that the Supreme Court approved of the practice in Horton v. State, 123 Ga. 145 (1) (51 SE 287) (1905): “It is not error to allow a witness to deliver his testimony in narrative form, without the aid of questions from counsel, when counsel so request, provided the witness is not permitted to state anything which is inadmissible as evidence. This practice is rather to be commended than condemned.”

Our review of the record does not find support for the assertion that appellant’s counsel was ridiculed by the trial court. The court merely pointed out that appellant’s counsel was objecting to the State’s attorney’s questions and was also objecting because there were no questions. Considering the accuracy of the trial court’s observation and the lack of merit in appellant’s objections, we find no undue prejudice to appellant in the trial court’s comment.

8. In appellant’s third enumeration of error in this case, he asserts that the trial court improperly admonished and threatened counsel, thereby commenting on the evidence counsel was eliciting. The record shows that counsel attempted to impeach a witness by reading former testimony of the witness which was not inconsistent with that given at this trial. The trial court merely told counsel, in a conference which the record shows was conducted out of the hearing of the jury, that he was entitled to read inconsistent testimony, but not that which was consistent. Since appellant has not shown that the trial court’s comment was inaccurate, and since appellant did not move for mistrial, this enumeration of error is without merit. Powers v. State, 168 Ga. App. 642 (2) (310 SE2d 260) (1983).

9. Appellant enumerates as error the trial court’s action in permitting a cousin of the prosecutrix to testify concerning what the prosecutrix told her after the incident leading to the trial in this case. “Where there is probative evidence, clearly admissible, to establish a matter of fact, the questionable admission of other evidence establishing the same fact is cumulative and thus not ground for reversal. [Cit.]” Caston v. State, 178 Ga. App. 752 (1) (344 SE2d 725) (1986). Here, the prosecutrix had already testified about the circumstances in which she told her cousin about the rape, and the prosecutrix had been cross-examined. Therefore, the complained-of testimony was cumulative and its admission is not ground for reversal.

10. Appellant’s next two enumerations of error both involve rulings by the trial court during colloquies concerning the admissibility of evidence, and both are controlled adversely to appellant by Havard v. State, supra.

11. The trial court’s denial of appellant’s motion for a directed verdict is enumerated as error. Where the evidence adduced at trial, viewed in a light most favorable to the prosecution, is sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt, there is no error in denying a motion for a directed verdict of acquittal. Rautenberg v. State, 178 Ga. App. 165 (1) (342 SE2d 355) (1986). The testimony of the prosecutrix that appellant had sexual intercourse with her against her will and forced her to commit an act of oral sodomy was sufficient to meet that standard. Barefoot v. State, 175 Ga. App. 131 (2) (333 SE2d 13) (1985).

Appellant’s suggestion that the victim’s testimony concerning sodomy was fatally tainted because a police officer stated that the prosecutrix did not mention it until sodomy was explained to her is without merit. The officer testified that she explained certain terms to the victim and that it was then that the victim stated that appellant had committed sodomy. That testimony does not contradict or cast any doubt on the victim’s testimony that appellant put his penis in her mouth against her will.

12. Appellant’s contention that the Rape Shield Law is unconstitutional may not be addressed since it was not raised in the trial court. Although one ground of appellant’s motion for new trial was that he had been denied his right to confrontation, the motion did not specify that it was the application of the Rape Shield Law which had effected that denial, and there is no other mention of the issue in the record. “Constitutional issues first raised on appeal present nothing for our decision. [Cit.]” Corley v. State, 154 Ga. App. 301 (2) (268 SE2d 76) (1980).

13. Finally, appellant complains in both appeals of the denial of his motion for new trial in both cases. The motion was based on a lab report which became available only after appellant was convicted of the offenses in Case No. 75452. The report indicated that the victim’s underpants did not show signs of blood. That report is at odds with the testimony of the victim and her cousin that there was blood on the underpants when the victim removed them on the evening of the offense.

Two of the requirements for a motion for new trial on the ground of newly discovered evidence are that the evidence be so material that it would probably produce a different result, and that the evidence not merely impeach the credit of a witness. Ray v. State, 181 Ga. App. 62, 63 (351 SE2d 262) (1986). The only effect of the evidence on which appellant’s motion was based is to impeach the testimony of the victim and her cousin. It does not, therefore, meet the standards articulated above and did not require the grant of a motion for new trial.

Judgments affirmed.

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

Decided February 24, 1988.

Robert B. Royce, for appellant.

Spencer Lawton, Jr., District Attorney, Larry Chisolm, Assistant District Attorney, for appellee.


text:
    75519.
    WIEDERHOLD v. PRIME BUILDERS.
    (366 SE2d 383)
   Benham, Judge.

Appellant contracted with appellee for the latter to build a shopping center. As part of the process in obtaining permanent financing for the venture, appellant made a partial payment of money owed to appellee and signed a promissory note to the effect that in consideration of the delay in appellant’s payment of the additional funds owed to appellee for services appellee had already provided, and of appellee’s dismissal of its mechanic’s lien action, appellant unconditionally promised to pay appellee $27,229.41 on or before September 30, 1986. Appellant failed to make the payment as agreed, and appellee filed suit on the note. Appellant answered the complaint and counterclaimed against appellee, contending that the payment was conditioned upon appellee completing certain items on a “punch list,” and that those items had not been completed. After discovery, appellee moved for summary judgment, its position being that the note evinced appellant’s unconditional promise to pay, thus rendering inadmissible any evidence appellant would introduce to show that the parties allegedly agreed to the condition precedent he claims existed. The trial court granted appellee’s motion for summary judgment, and appellant brings this appeal. We affirm.

1. Appellant contends that the trial court erred in finding that no genuine issue of material fact exists and, by implication, holding that parol evidence was not admissible to show the alleged condition precedent and the failure of appellee to satisfy the condition. We disagree. In his deposition appellant admitted that he signed the document, that the terms of the note were not conditional, and that the note did not tie the punch list items to it. To include the completion of the punch list items as a condition precedent to the payment on the note would be to contradict the terms of the note which is unconditional on its face. “Parol contemporaneous evidence is generally inadmissible to contradict or vary the terms of a valid written instrument.” OCGA § 24-6-1. “[T]he unconditional promise to pay contained in the . . . promissory [note] may not be modified by the imposition of conditions not apparent on the face of the [note]. [Cits.]” Hyman v. Horwitz, 148 Ga. App. 647, 649 (252 SE2d 74) (1979). Thus, the trial court did not err in granting summary judgment to appellee. Id. Appellant’s reliance on Haraka v. Datry, 148 Ga. App. 642 (252 SE2d 71) (1979), is misplaced. In that case, the parol evidence sought to be introduced was admissible because it “[did] not constitute an oral contradiction or variation of the written instrument, but [went] to the very existence of the contract and tend[ed] to show that no valid and effective contract ever existed, at least not until the fulfillment of the condition. [Cits.]” Id. at 644. In Haraka, there was no attempt to alter the terms of the written contract, unlike the case before us. Appellant’s reliance on Stembridge v. Simmons, 143 Ga. App. 90 (237 SE2d 514) (1977), likewise is misplaced. In Stembridge, the parol evidence was admissible for the same reason as in Haraka. Moreover, in Stembridge, “[b]oth sides . . . agreed at trial that the note was conditional,” and in Haraka, both sides knew that the condition precedent related directly to the delivery or taking effect of the written instrument, whereas in appellant’s case, there was no such agreement or proof of knowledge.

2. Appellant also contends that the trial court implicitly decided that the parties had reached an accord and satisfaction, and that that conclusion was an erroneous one. “Accord and satisfaction occurs where the parties to an agreement, by a subsequent agreement, have satisfied the former agreement, and the latter agreement has been executed. The execution of a new agreement may itself amount to a satisfaction of the former agreement, where it is so expressly agreed by the parties; and, without such agreement, if the new promise is founded on a new consideration, the taking of it is a satisfaction of the former agreement.” OCGA § 13-4-101. “ ‘If the contract is of such a nature as to give rise to separate and distinct demands or to create a number of separate obligations and cross-obligations, and a number of distinct breaches as to these separate obligations occur, the parties may make an accord and satisfaction, or what in law amounts to an accord and satisfaction, as to one or more of these demands, without affecting the others.’ [Cits.]” State Farm &c. Ins. Co. v. Fordham, 148 Ga. App. 48 (2) (250 SE2d 843). While there may not have been an accord and satisfaction reached as to completion of the punch list items, there was, by the terms of the note, an agreement reached by the parties regarding the amount of money appellant owed appellee for the work it had already completed and when that money was to be paid. Appellant admitted that he owed appellee $65,000, and that he paid $38,000 and signed the note for the balance due for the work done as of June 18, 1986. Appellee agreed to dismiss its mechanic’s lien action, and to accept the payment later than initially promised in exchange for appellant’s unconditional promise to pay by September 30, 1986. Therefore, as to the financial portion of the agreement, there was an accord and satisfaction. Id. However, appellant is not preeluded from pursuing his counterclaim for the work he claims was not completed, as the trial court was not asked to nor did it grant summary judgment as to appellant’s counterclaim for that alleged breach of contract.

Decided February 24, 1988.

Douglas L. Cronkright, for appellant.

John D. Marshall, Jr., for appellee.

3. For the reasons discussed in Divisions 1 and 2 of this opinion, we disagree with appellant’s final contention that there exists an issue of material fact after all doubts and inferences to be drawn have been resolved in appellant’s favor. The trial court did not err in granting appellee’s motion for summary judgment.

Judgment affirmed.

Banke, P. J., and Pope, J., concur. Corley, J., disqualified.


text:
    75539.
    BURRELL v. THE STATE.
    (366 SE2d 385)
   McMurray, Presiding Judge.

Defendant was indicted for two counts of aggravated assault. The evidence at trial showed that on July 5, 1986, Roger Fountain (the victim) received serious knife wounds to his arm, neck and abdomen during an affray with defendant at “D’s Tavern in Rabun County [Georgia].” The victim was unarmed. Defendant was found guilty as to the second count only and after the denial of his motion for new trial he appeals. Held:

1. First, defendant contends the trial court erred in allowing the victim to exhibit his stab wounds and resultant surgical scars to the jury after the State exhibited to the jury seven photographs of the victim’s injuries.

An examination of the record reveals that the photographs of the victim’s injuries were made while he was in the hospital shortly after the brawl. The victim displayed his scars to the jury almost six months after the incident. Consequently, the victim’s demonstration to the jury was relevant to establish the extent of his injuries and the deadliness of the weapon used by defendant. Rollins v. State, 164 Ga. App. 452, 453 (4) (297 SE2d 352). In any event, we do not find admission of this evidence reversible error. See Williams v. State, 250 Ga. 553, 561 (3) (300 SE2d 301).

2. Next, defendant contends the evidence was insufficient to support the jury’s verdict in light of the evidence adduced in support of his plea of self-defense.

Elaine McKay, a witness to the incident, testified as follows: “Q. [State’s attorney] On the 5th day of July, 1986, did you see [the victim]? A. Yes, sir,. . . [h]e was at a table at the end of the bar. Q. Did you notice what he was doing? A. He came in, sat down, put his head on the table, and went to sleep. Q. Did you see anybody do anything with a glass of water? A. Yes, sir. At closing time, people were starting to leave, and [the victim] was still asleep, and [defendant] picked up a glass of water and poured it on [the victim] to wake him up ... Q. As soon as the water hit him, did [the victim] do anything? A. He came up trying to swing, trying to fight. Q. Did [defendant] do anything? A. He tried to hit him back. . . . They scuffled, and both wound up on the floor . . . Q. Did anyone attempt to break them up at that time? A. Yes, sir . . . Tommy Sutton did [and] eventually, he was successful. Q. What happened as far as getting them apart? A. [Tommy Sutton] was able to get them apart, got [defendant] almost to the door . . . [a]nd then [the victim] came over to [defendant] and took a swing at him, and it started again. Q. When it started again, did you see [defendant] do anything with his hands? A. He reached in his pocket, [revealed a] knife [and] cut [the victim]. Q. Where did he cut him? A. Across the chest, I think three times, his neck and his arm and a place on his back. Q. What kind of weapon did [the victim] have? A. None that I ever saw. ... Q. Do you have some sort of training as a medical expert? . . . A. Yes, I’m a registered nurse. . . . Q. For what length of time have you been a practicing registered nurse? A. About 11 or 12 years. Q. Did you participate in any way for the first aid for [the victim]? A. Yes, sir. . . . [The victim] had an artery laid open in his arm, and it was spurting blood. Another one was spurting in his neck. I had my thumbs on his arm to try to keep him from bleeding to death until we could get an ambulance. . . . Q. [B]ased on your medical training and what you saw out there that night, is it your opinion that you were able to help [the victim], and [is] he lucky that you were there? A. Yes, sir, [his injuries were serious]. Q. [Approximately how many times did you see [defendant] swing with that knife at [the victim]? A. I would say four or five times, but it was so fast all you could see was just that light glittering on the blade. I would say four or five times.”

Ms. McKay’s testimony and other evidence adduced at trial was more than sufficient to enable any rational trier of fact to find defendant guilty, beyond a reasonable doubt, of the offense of aggravated assault. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Sognier and Beasley, JJ., concur.

Decided February 24, 1988.

W. Brek Barker, for appellant.

Michael H. Crawford, District Attorney, E. J. McCollum, Assistant District Attorney, for appellee.


text:
    75575.
    In the Interest of C. C. B.
    (366 SE2d 387)
   McMurray, Presiding Judge.

C. C. B. appeals from an adjudication finding that he committed the delinquent acts of driving under the influence (DUI) and possession of marijuana. The petition alleged that: “Said youth is delinquent in that on or about 3-29-87, he did have in his possession marijuana, LaGrange, Troup County, Georgia. Said youth was also operating a vehicle under the influence of alcohol. Therefore, said youth is charged with Possession of Marijuana as cited in Section 16-13-30, Code of Georgia and DUI as cited in Section 40-6-391 (A) (2) Traffic Code of Georgia.” Upon the hearing before the juvenile court the evidence revealed the presence of THC (tetrahydracannabinol, the active ingredient of marijuana) in C. C. B.’s urine and that the test for alcohol was negative. The adjudication of delinquency in regard to DUI was predicated in part upon the presence of THC. Held:

C. C. B. contends that he was not properly advised of the charges against him so as to enable him to prepare an adequate defense. A juvenile petition must satisfy due process in that: “ ‘(1) it must contain sufficient factual details to inform the juvenile of the nature of the offense; and (2) it must provide data adequate to enable the accused to prepare his defense.’ T. L. T. v. State of Ga., 133 Ga. App. 895, 897 (212 SE2d 650) (1975).” C. L. T. v. State of Ga., 157 Ga. App. 180 (1) (276 SE2d 862). In the case sub judice, C. C. B. was misinformed as to the nature of the offense in that the petition plainly suggests that the DUI charge was based upon an act of “operating a vehicle under the influence of alcohol” rather than marijuana. See OCGA § 40-6-391 (a) (1). The State argues that because C. C. B. was charged with violation of OCGA § “40-6-391 (A) (2)” (driving under the influence of any drug to a degree which renders him incapable of driving safely) and also possession of marijuana, C. C. B. was charged with notice that the DUI charge was related to drug (marijuana) influence. While such would possibly be correct in the absence of the misinformation contained in the petition, we must note that alcohol is itself a drug so that the reference to OCGA § 40-6-391 (A) (2) [(a) (2)] did not present an obvious ambiguity. C. C. B. argues that if properly informed of the charges against him he could have presented evidence that THC lingers in the body after its intoxicating effect has ceased, thus contradicting the State’s evidence that his driving ability was affected by marijuana. Applying the two-prong test from T. L. T. v. State of Ga., 133 Ga. App. 895, 897 (1) supra, we find a fatal variance between the allegations of the petition and the proof presented before the juvenile court as to the delinquent act of “operating a vehicle under the influence of alcohol.”

Decided February 24, 1988.

Sherry L. Stenson, for appellant.

Arthur E. Mallory III, District Attorney, Peter J. Skandalakis, William G. Hamrick, Assistant District Attorneys, for appellee.

Judgment affirmed as to adjudication of delinquency for possession of marijuana; judgment reversed as to adjudication of delinquency for DUI.

Sognier and Beasley, JJ., concur.


text:
    75621, 75623.
    75622.
    LAMB BROTHERS LUMBER COMPANY, INC. et al. v. SOUTH CAROLINA INSURANCE COMPANY; and vice versa. DEMPS v. SOUTH CAROLINA INSURANCE COMPANY.
    (366 SE2d 388)
   McMurray, Presiding Judge.

On May 10,1982, Lamb Brothers Lumber Company, Inc. (“Lamb Brothers”), was covered by an automobile liability policy issued by Early American Insurance Company (“Early American”) and by an umbrella policy issued by South Carolina Insurance Company (“South Carolina Insurance”). The automobile liability policy provided coverage limits of $500,000. The umbrella policy provided excess coverage of $1,000,000.

The umbrella policy contained an automobile liability endorsement which read: “In consideration of the reduced premium charged, it is agreed that the insurance afforded by this policy shall not apply with respect to liability arising out of the ownership, maintenance, use, operation, loading or unloading of any automobile while away from premises owned by, rented to or in the care, custody or control of the insured unless such liability is covered by valid and collectible underlying insurance at the limits shown in the Schedule of Underlying Insurance [$500,000.00], but only for such hazards for which coverage is afforded by said underlying insurance.” It also contained the following condition: “MAINTENANCE OF UNDERLYING INSURANCE. Each policy described in the Schedule of Underlying Insuranee shall be maintained in full effect during the currency of this policy, except for any reduction of the aggregate limits contained therein solely by payment of claims arising out of occurrences taking place during the period of this policy. Failure of the named insured to comply with the foregoing shall not invalidate this policy but in the event of such failure, the company shall be liable only to the extent that it would have been liable had the named insured complied therewith .... In the event there is no recovery available to the insured as a result of insolvency of an underlying insurer . . . the coverage hereunder shall apply in excess of the applicable limit of liability [$500,000] specified in the schedule of underlying insurance.”

Dorothy Demps was injured on May 10, 1982, when she was hit by a truck driven by Toby York on Bay Street in Savannah. York, an employee of Lamb Brothers, was operating the truck in the scope of his employment.

Demps brought two lawsuits against Lamb Brothers and York seeking the recovery of damages for personal injuries. One suit was filed on July 29, 1982, in the Superior Court of Jefferson County. The other was filed on May 8, 1984, in the State Court of Jefferson County. While these actions were pending, Early American became insolvent. Thereafter, the Alabama Department of Insurance notified Lamb Brothers that Early American would not provide coverage under the automobile liability policy. The notification came soon after Early American was liquidated.

On April 10, 1985, the Georgia Insurers Insolvency Pool stepped into the picture. It retained counsel to defend Lamb Brothers and Toby York in the lawsuits brought by Demps. Coverage of $50,000, less a $100 deductible, was afforded to Lamb Brothers and York by the Georgia Insurers Insolvency Pool.

Lamb Brothers called upon South Carolina Insurance to provide a legal defense in the Demps lawsuits and to pay up to the policy limits for any judgment rendered against Lamb Brothers and York in excess of $50,000.

South Carolina Insurance took the position that it was not obligated to provide any coverage whatsoever to Lamb Brothers and York. Alternatively, South Carolina Insurance posited that it was only obligated to provide coverage if Demps obtained a judgment against Lamb Brothers and York for over $500,000.

To ascertain the extent of its obligations under the umbrella policy, South Carolina Insurance brought this declaratory judgment action against Lamb Brothers, York, Early American, Demps and the Georgia Insurers Insolvency Pool. The facts were stipulated by the parties and the case was submitted to the superior court for a resolution of cross motions for summary judgment.

The superior court determined that South Carolina Insurance is to provide coverage in the event that Demps obtains a judgment exceeding $500,000. It also ruled that South Carolina Insurance was not obligated to provide a legal defense in the Demps lawsuits. These appeals followed.

In Case No. 75621, Lamb Brothers, York and the Georgia Insurers Insolvency Pool assert the superior court erred in failing to rule that South Carolina Insurance must provide coverage if Demps obtains a judgment in excess of $50,000. This assertion is repeated by Demps in Case No. 75622. In Case No. 75623, South Carolina Insurance contends the superior court erred in failing to rule that it has no obligation to provide insurance coverage to Lamb Brothers. Held:

“ ‘[Ujnder 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.

We think the intentions of the parties are clear and unambiguous. They can be ascertained by a plain reading of the entire policy. The policy requires South Carolina Insurance to provide a higher limit of liability for a loss falling under Lamb Brothers’ automobile liability policy. The threshold point at which coverage begins is $500,000. The policy does not obligate South Carolina Insurance to provide first dollar coverage in the event the underlying insurer is insolvent; nor does it require South Carolina Insurance to provide a defense. On the other hand, South Carolina Insurance is not relieved of its obligation to provide excess coverage because of the insolvency of the underlying insurer.

Simply put, the policy calls upon South Carolina Insurance to provide excess insurance coverage of up to $1 million in the event that a judgment exceeding the underlying policy limits ($500,000) is rendered against the insured. United States Fire Ins. Co. v. Capital Ford Truck Sales, 257 Ga. 77, supra. This is what the parties bargained for; this is what they should get.

Judgments affirmed.

Sognier and Beasley, JJ., concur.

Decided February 24, 1988.

David H. Hanks, Tandy M. Menk, David Fritts, Maurice Stein-berg, for appellants (case no. 75621).

Michael W. Millians, for appellee.

Billy N. Jones, for appellant (case no. 75622).

Michael W. Millians, for appellee.


text:
    75683.
    SPENCER v. THE STATE.
    (366 SE2d 390)
   McMurray, Presiding Judge.

Defendant appeals his conviction of the offense of trafficking in cocaine. The sole enumeration of error challenges the denial of defendant’s motion to suppress evidence. Held:

Between 3:00 and 4:00 a.m. on the morning of April 24, 1986, a State trooper with the Georgia State Patrol observed a vehicle driven by defendant cross the centerline and the fog line on 1-75. The trooper stopped the vehicle and asked defendant to see defendant’s driver’s license and the registration to the automobile. Defendant produced a rental agreement for the vehicle and his Tennessee driver’s license.

During the course of his conversation with defendant the trooper “asked where he had been, where he was going, what type of work he was involved in, etcetera.” The trooper testified that defendant responded “that he was a mechanic or service manager for [a] trucking company, ... in Nashville and had flown to Miami to look at some trucks in which his boss had been interested in purchasing, and that he had flown down there and was driving back to Nashville.” The trooper also testified that, “I then asked him how come — well, if he had flown down there why did he not fly back? He advised that he enjoyed driving and he preferred to drive back. I asked if he had any additional clothing, which he advised that he did not. . . .”

The trooper then returned the documents to defendant along with a warning citation for weaving. Having become suspicious, the trooper then asked for permission to search the vehicle. The trooper testified that defendant responded, “Sure, go ahead,” and that defendant “took the keys from the ignition and opened the trunk of the car.” The trooper proceeded to search the vehicle, finding the quantity of cocaine which defendant seeks to suppress.

“The voluntariness of a consent to search is determined by looking to the ‘totality of the circumstances,’ Schneckloth v. Bustamonte, 412 U. S. 218, 229 (93 SC 2041, 36 LE2d 854) (1973), including such factors as the age of the accused, his education, his intelligence, the length of detention, whether the accused was advised of his constitutional rights, the prolonged nature of questioning, the use of physical punishment, and the psychological impact of all these factors on the accused. In determining voluntariness, no single factor is controlling. Id. at 226.” Dean v. State, 250 Ga. 77, 80 (295 SE2d 306). The trial court’s decision on questions of fact and credibility at the suppression hearing must be accepted by the appellate courts unless clearly erroneous. Williams v. State, 151 Ga. App. 833, 834 (261 SE2d 720).

Decided February 24, 1988.

Bobby D. Wilson, for appellant.

Darrell E. Wilson, District Attorney, for appellee.

Under the facts and circumstances in the case sub judice, we find no error in the trial court’s denial of defendant’s motion to suppress. Wilson v. State, 179 Ga. App. 780, 781 (1) (347 SE2d 709); Steward v. State, 182 Ga. App. 659, 660 (1) (356 SE2d 890).

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    75699.
    OULD v. THE STATE.
    (366 SE2d 392)
   Beasley, Judge.

On March 27, 1986, defendant was charged with three misdemeanor offenses: driving under the influence of alcohol, OCGA § 40-6-391, speeding, OCGA § 40-6-180, and driving without a license, OCGA § 40-5-20. An accusation against him was filed on May 28 to which he entered a plea of not guilty and demanded a trial by jury. The case was first called for trial for February, 1987, but was removed and reset without objection for May 28, 1987. The day before the scheduled trial, defendant moved for discharge and acquittal based upon the failure to grant him a speedy trial. It was denied and he appeals. Thus the trial, if there is to be one, is further delayed.

1. Although the case is primarily interlocutory in nature, a direct appeal is permissible because it indirectly implicates the issue of double jeopardy resulting from the failure to grant an accused a speedy trial. See Hubbard v. State, 254 Ga. 694 (333 SE2d 827) (1985), allowing interlocutory appeal from denial of a motion to dismiss based on the statutory demand which as to purpose is analogous to the federal constitutional right to a speedy trial. Cook v. State, 183 Ga. App. 720 (1) (359 SE2d 716) (1987) follows Hubbard, and Smith v. State, 169 Ga. App. 251 (1) (312 SE2d 375) (1983) precedes it. The reasoning in these cases applies here and recommends the same re-suit, which we adopt. Thus, a direct appeal lies from a denial of discharge based on an alleged denial of a constitutional right to a speedy trial.

2. Although defendant’s motion is couched in terms reflective of reliance on OCGA § 17-7-170, defendant had not filed a demand for trial pursuant to that statute and hence cannot rely upon its provisions. See State v. Adamczyk, 162 Ga. App. 288 (290 SE2d 149) (1982), where this court held that a demand for jury trial is not sufficient as a statutory request for a speedy trial. See also Smith v. State, 166 Ga. App. 352 (1) (304 SE2d 476) (1983); Ferris v. State, 172 Ga. App. 729 (1) (324 SE2d 762) (1984).

His other contention below complained that the trial had been delayed by the State to his prejudice but stated no particular authority. At the hearing he invoked an unspecified provision of the Georgia Constitution. He apparently intended to refer to Ga. Const. 1983, Art. I, Sec. I, Par. XI (a). He then cited a case applying the Federal Constitution, Amendments Six and Fourteen. Ferris, supra at 731 (2). Yet later he argued that the basis was a combination of state constitutional due process and speedy trial provisions. On appeal he abandons the statutory and state constitutional grounds and relies solely on the federal constitutional right to a speedy trial, exclusively citing Nelson v. State, 247 Ga. 172 (274 SE2d 317) (1981). We therefore rule only on that ground. Andrews v. State, 175 Ga. App. 22, 24 (332 SE2d 299) (1985).

“A speedy trial is guaranteed an accused by the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States, and also Article I of the Constitution of this State [now 1983 Ga. Const., Art. I, Sec. I, Par. XI (a)].” Powell v. State, 143 Ga. App. 684, 685 (1) (239 SE2d 560) (1977).

“In Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), the Supreme Court of the United States identified four factors to be considered by a court in determining whether an accused’s constitutional right to a speedy trial had been violated: ... (a) [t]he length of the delay, (b) the reason for the delay, (c) the defendant’s assertion of his right, and (d) the prejudice to the defendant. . . . The Supreme Court further stated that it regarded none of the factors as either a necessary or sufficient condition to a finding of a deprivation of the right of speedy trial but rather that the factors should be considered together in a balancing test of the conduct of the prosecution and the defendant.” Washington v. State, 243 Ga. 329, 330 (1) (253 SE2d 719) (1979). See also Nelson v. State, supra at 174 (3). As to the last factor there are “three interests which the speedy trial right was designed to protect, the last being the most important: (a) to prevent oppressive pre-trial incarceration; (b) to minimize anxiety and concern of the accused; and (c) to limit the possibility that the defense will be impaired.” Id. p. 331; Hall v. Hopper, 234 Ga. 625, 626 (216 SE2d 839) (1975). Applying these criteria, we consider the facts of this case.

(a) Length of delay. One year was certainly not “speedy” but was much less than in numerous cases where no constitutional violation was found. “ ‘[M]ere passage of time is not enough, without more, to constitute a denial of due process.’ ” State v. Fields, 137 Ga. App. 726, 727 (224 SE2d 829) (1976); Hughes v. State, 228 Ga. 593, 595 (1) (187 SE2d 135) (1972).

(b) Reason for delay. The trial court curtailed the State’s effort to establish the status of the court’s docket and the prosecution’s case load. This was a factor that should have been considered. State v. Fields, supra, 727. However, there was no showing by defendant that there was a deliberate delay for the purpose of hampering the defense.

(c) Assertion of right. A delay by defendant can weigh heavily against him. Haisman v. State, 242 Ga. 896, 898 (2) (252 SE2d 397) (1979). Here defendant demanded a jury trial but made reference to speedy trial only in his motion for acquittal. See Getz v. State, 251 Ga. 462, 463 (306 SE2d 918) (1983).

(d) Prejudice to defendant. Considering the three interests, the first two are essentially neutralized: defendant was not incarcerated and his concern was at most minimal. He argues strenuously that the delay in his trial seriously prejudiced his case. He urges the absence of certain key witnesses who were present in the hospital at the time he contends that he was wrongfully denied his right to an independent blood test. His argument is that if their testimony was favorable, the DUI charges would either have been dismissed or the State would have had to rely only on evidence of his intoxicated condition as related by the arresting officer. At the hearing, defendant conceded that he did not know who the witnesses were and had made no effort to identify or locate them prior to a week before filing his motion to discharge and acquit. This is not a situation where witnesses died or moved and their possible testimony was lost because of the delay. Instead, if favorable defense evidence was lost it was because of defendant’s own neglect and delay after the accusation was filed. Among equals, if any consideration is first, it must be whether defendant suffered prejudice because of the delay. See Durden v. Barron, 244 Ga. 277, 279 (260 SE2d 17) (1979); Ferris v. State, supra at 731. “There must be more than a mere claim of prejudice; it must be shown, and this the accused did not do.” Powell v. State, supra, 686.

Considering all the factors, the trial court did not abuse its discretion in denying defendant’s motion. Nelson v. State, supra at 174 (3).

Decided February 24, 1988.

J. Richardson Brannon, for appellant.

Ken Stula, Solicitor, for appellee.

Judgment affirmed.

McMurray, P. J., concurs. Sognier, J., concurs in the judgment only.