text:
    A90A0557.
    BROCK v. THE STATE.
    (396 SE2d 785)
   Pope, Judge.

Appellant Jerry Brock was convicted of aggravated assault on a police officer, use of fighting words and obstruction of a police officer. The convictions arose out of an incident that occurred on August 26, 1986. Officer Thomas, a uniformed Clarke County Police Department officer, investigated a complaint that a juvenile was driving in a reckless manner. He found the car described in the complaint parked at a lawnmower shop. There he talked with defendant Brock, who was with the car and who denied that anyone had been driving it. He was belligerent and told the officer to mind his own business. Officer Thomas testified that Brock’s attitude caused him to take the precaution of calling for backup as he completed his check of the car. Although he noted that the tires on the car were slick with no tread visible, Officer Thomas did not write a citation because the car was parked. Officer Thomas concluded his encounter with Brock and went to the complainant’s house to explain what he had done. As he returned to his car, he saw Brock drive by. Officer Thomas got in his car, activated his squad car blue lights and attempted to stop Brock for the offense of driving with slick tires (defective equipment, OCGA § 40-8-7).

Brock ignored the officer and pulled into his driveway; the officer pulled in behind him, got out and asked Brock for his driver’s license and proof of insurance. Instead, Brock started walking to his house, telling Officer Thomas to get out of his yard, that he had not done anything. Officer Thomas repeated his request two or three times and Brock continued to ignore him and head for his house. Just as Brock reached the doorway, Officer Thomas reached Brock, placed a hand on Brock’s arm and told him that he was under arrest. Brock swung at the officer and tried to push him off the porch. Officer Thomas responded by hitting Brock in the side with his nightstick. Brock broke away into the house and the two men continued fighting, with Brock cursing Officer Thomas, who is black, and calling him “nigger.” During the fight, the officer lost his radio, but did get to the phone and called 911 and requested help. He left the phone off the hook and the rest of the altercation was recorded at the 911 communications center. In the course of the fight, Brock swung at the officer with a floor fan and a dining room chair. When help arrived, Brock was finally subdued, but not before Brock’s son hit Officer Thomas with a screen door that had been dislodged in the fight.

1. Brock maintains that his arrest was unlawful. He argues that a police officer is not allowed to make a custodial arrest for a traffic or motor vehicle violation, but rather must issue the offender a citation. He bases this argument upon OCGA § 17-4-23 (a) which reads in pertinent part: “A law enforcement officer may arrest a person accused of violating any law or ordinance governing the operation, licensing, registration, maintenance or inspection of motor vehicles by the issuance of a citation, provided the offense is committed in his presence . . . .” Officer Thomas initially tried to give Brock a citation for the misdemeanor offense of having defective equipment on his car (slick tires), a violation of OCGA § 40-8-7. However, when Brock ignored him, Officer Thomas sought to effect a custodial arrest. The question raised is whether a police officer is restricted to making an arrest for a traffic violation solely by means of a citation or does OCGA § 17-4-23 (a) simply provide police an alternative to custodial arrest for such violations. We hold that OCGA § 17-4-23 (a) simply gives police the discretion to write a citation but does not preclude physical arrest. OCGA § 17-4-20 permits a police officer to make a warrantless arrest for a crime committed in his presence. This power extends to misdemeanor offenses. King v. State, 161 Ga. App. 382 (1) (288 SE2d 644) (1982). The language of OCGA § 17-4-23 (a) that an officer “may arrest” for a traffic violation by means of a citation clearly is discretionary. For the convenience of the motoring public and the police, the Code section gives the officer the option of issuing a citation rather than going through the time-consuming ordeal of a custodial arrest. It does not mandate a citation.

The 11th Circuit Court of Appeals reached the same conclusion in the case of United States v. Wilson, 853 F2d 869, 871-873 (11th Cir. 1988). In that case, Wilson was arrested for driving with a suspended license. A subsequent search revealed drugs. The court rejected Wilson’s argument that the search was unreasonable because his custodial arrest was unlawful due to the provisions of OCGA § 17-4-23 (a). After reviewing the statutory scheme of arrests, that court concluded, as we do, that OCGA § 17-4-23 (a) gives a police officer the option to issue a citation but does not restrict the power given to police in OCGA § 17-4-20 to make custodial arrests for crimes committed in their presence.

2. Brock argues that his arrest was unlawful because it was a warrantless seizure that occurred in his home in violation of the Fourth Amendment to the Constitution of the United States. We disagree. The evidence shows that Brock committed the violation of driving with defective equipment in Officer Thomas’ presence. When Officer Thomas first tried to issue a citation for the offense in the yard, Brock ignored him and retreated toward his house, where Officer Thomas caught him in the doorway. “ ‘Absent exigent circumstances or consent, an entry into a private dwelling to conduct a search or effect an arrest is unreasonable without a warrant.’ Thompson v. State, 248 Ga. 343 (1) (285 SE2d 685) (1981), citing Steagald v. United States, 451 U. S. 204, 214, n. 7 (101 SC 1642, 68 LE2d 38) (1981) . However, ‘a suspect may not defeat an arrest which has been set in motion in a public place ... by the expedient of escaping to a private place.’ United States v. Santana, 427 U. S. 38, 43 (96 SC 2406, 49 LE2d 300) (1976). Since the arrest of [Brock] in [his] house was based upon Officer [Thomas’] “hot pursuit” of the subject, such arrest was a lawful activity. See Martasin v. State, 155 Ga. App. 396 (2) (271 SE2d 2) (1980); Annot., 76 ALR2d 1432 § 2b.” (Punctuation omitted.) Brown v. State, 163 Ga. App. 209 (1), 210 (294 SE2d 305) (1982) (cert. dismissed, 459 U. S. 1166) In United States v. Santana, supra, the U. S. Supreme Court held that a person standing in the open doorway of her house was in a public place subject to arrest by police upon probable cause and without violating the Fourth Amendment. Id. at 42. The arrest made by Officer Thomas was lawful.

Decided July 6, 1990

Rehearing denied July 30, 1990 — Cert, applied for.

Henry & Pearson, J. Hue Henry, for appellant.

Harry N. Gordon, District Attorney, Richard J. Weaver, Assistant District Attorney, for appellee.

3. Because Brock’s enumerations 2, 3 and 4 are based upon the premise that the arrest was unlawful and his actions of violently resisting arrest were justified, and we have held in Divisions 1 and 2 that the arrest was legal, it follows that these enumerations are without merit.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


source: Caselaw Access Project

author: Carley, Chief Judge. Sognier, Judge,

license: Public Domain

text:
    A90A0569.
    NEISWONGER v. JANICS.
    (396 SE2d 553)
   Carley, Chief Judge.

Appellee-plaintiff brought this negligence action, seeking a recovery of personal injury and property damages resulting from a collision between his motorcycle and appellant-defendant’s van. Appellant appeals from the judgment that was entered by the trial court on the jury’s verdict in favor of appellee.

1. The trial court’s denial of appellant’s motion for judgment notwithstanding the verdict or, alternatively, for new trial is enumerated as error.

“ ‘[T]he motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a “one-way” verdict proper, judgment n.o.v. should not be awarded. In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. And this approach governs the actions of appellate courts as well as trial courts.’ [Cit.]” (Emphasis supplied.) Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 159 (1C) (256 SE2d 916) (1979). Following this approach in the instant case, the evidence shows the following: With appellee’s motorcycle in the lead and appellant’s van behind, both were traveling in the same direction on a two-lane road in drizzling rain. Appellant’s written statement indicates she was as close as one car length from appellee when she first saw him. Appellant tried to pass appellee but moved only to the left side of the right lane without crossing the centerline. The front of appellant’s van collided with the left side of appellee’s motorcycle. The collision occurred in the right lane. Another driver who was following appellant corroborated her testimony that appellee had turned from the right edge of the right lane in front of her van as she tried to pass. However, neither appellant nor the other driver knew whether appellee’s left turn signal was on before the collision. Appellee himself had poor recall of the events.

“In the usual case, . . . who is at fault, in the sense of negligence proximately causing a rear-end collision, whether the driver of the rear vehicle, the driver of the lead vehicle, or both, or neither, is a jury question for determination upon consideration of all of the attendant circumstances and the applicable rules of the road governing the operation of motor vehicles.” Poss v. Carlton Co., 122 Ga. App. 528, 530 (3) (177 SE2d 829) (1970). The issues of diligence, negligence, and proximate cause “should be resolved, excepting very rare cases, by the jury and not by trial and appellate judges. [Cit.] . . . [T]he existence of liability . . . [should] be determined by a jury unless there was no dispute as to the facts, and they amount to a confession of liability as a matter of law. [Cit.]” Palmore v. Stapleton, 157 Ga. App. 691, 693 (2) (278 SE2d 476) (1981), overruled on other grounds, Chadwick v. Miller, 169 Ga. App. 338, 344 (1) (312 SE2d 835) (1983).

The verdict in the instant case is supported by the evidence notwithstanding appellee’s poor memory. See Utzman v. Srochi, 127 Ga. App. 294 (1) (193 SE2d 195) (1972). “[T]he driver of the following vehicle must exercise ordinary care to heed the warnings or movement [of the preceding vehicle] in order to avoid collision. [Cits.]” Sears, Roebuck & Co. v. Kinzler, 118 Ga. App. 682, 684 (1) (164 SE2d 872) (1968). “[T]he fact that [appellant] did not see [appellee] until [he] was [one car length] in front of [her] vehicle, which [she] admitted in [her written statement], was alone sufficient to indicate a jury issue on the question of [her] negligence in' failing to maintain a proper lookout ahead.” Hollis v. Lipp, 118 Ga. App. 575, 576 (164 SE2d 885) (1968). Moreover, “[t]he driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance. . . .” OCGA § 40-6-42 (1). The jury was authorized to find that appellant violated this statute, especially when its provisions are read in conjunction with OCGA § 40-6-312 (a): “All motorcycles are entitled to full use of a lane, and no motor vehicle shall be driven in such a manner as to deprive any motorcycle of the full use of a lane.” Such a violation would constitute appellant’s negligence per se. See Hinesley v. Anderson, 75 Ga. App. 394, 398 (8) (43 SE2d 736) (1947); Keebler v. Willard, 86 Ga. App. 884 (72 SE2d 805) (1952). “The plaintiff is only denied recovery under our system of law, where the plaintiff’s negligence is equal to or greater than that of the defendant. ... It appears from the evidence here that both [appellant] and [appellee may have been] negligent, but as to the degree of negligence attributable to either, this is a question for the jury.” Keebler v. Willard, supra at 889 (where deceased motorcycle driver was undisputedly negligent in not looking and in turning to his left without giving a signal). See also Hughes v. Brown, 111 Ga. App. 676, 678 (1) (143 SE2d 30) (1965) (where bicycle rider moved left while an automobile was attempting to pass).

“The issues of a directed verdict or judgment n.o.v. are reviewed on the same basis. [Cit.] ‘(T)he question before this court is not whether the verdict and the judgment of the trial court was merely authorized, but is whether a contrary judgment was demanded.’ [Cits.] A judgment n.o.v. is properly granted only when there can be only one reasonable conclusion as to the proper judgment; if there is any evidentiary basis for the jury’s verdict, viewing the evidence most favorably to the party who secured the verdict, it is not error to deny the motion. [Cits.]” Stone v. Cook, 190 Ga. App. 11, 12 (1) (378 SE2d 142) (1989). Accordingly, the trial court did not err in denying appellant’s motion for judgment n.o.v. Likewise, there was no error in denying appellant’s motion for new trial on the general grounds.

2. The trial court’s denial of appellant’s motion for partial directed verdict on the issue of appellee’s negligence per se is enumerated as error.

Appellant’s motion was predicated upon the contention that, as a matter of law, appellee was undertaking an improper U-turn or left turn in violation of OCGA §§ 40-6-121 (3) and 40-6-123 (a). However, the evidence did not exclude the possibility that appellee was merely moving to the left portion of his lane. See OCGA § 40-6-312 (a). Appellant’s motion was further predicated upon the contention that appellee failed to signal his turn in violation of OCGA § 40-6-123 (a) and that he was, therefore, negligent as a matter of law. However, the testimony of both appellant and the driver following her shows that neither knew whether or not appellee had used a turn signal. It follows that the trial court correctly denied appellant’s motion for partial directed verdict.

3. Counsel for appellant attempted to cross-examine the investigating officer concerning his conclusions or opinions as to the cause of the collision. Appellee’s objection to this question was sustained. The trial court’s refusal to allow this question to be answered is enumerated as error.

The record shows that the investigating officer had previously stated and illustrated the sequence of events and the paths of travel of the vehicles. He had also previously testified that appellee was making a U-turn and that nothing on appellant’s part had been found to be a contributing factor in the collision. From such evidence, the jury could have drawn its own conclusions as to the cause of the collision. Moreover, appellant’s counsel was not prevented from contending in closing argument that, based on the evidence, the cause of the collision was an improper U-turn by appellee. Accordingly, appellant has shown no reversible error. See Agnew v. Hamel, 107 Ga. App. 221, 223 (3) (129 SE2d 574) (1963); Calloway v. Rossman, 150 Ga. App. 381, 382 (1) (257 SE2d 913) (1979); United Security Agency v. Sims, 161 Ga. App. 167 (288 SE2d 117) (1982).

Judgment affirmed.

McMurray, P. J., Banke, P. J., Birdsong, Pope, Beasley and Cooper, JJ., concur. Deen, P. J., concurs in judgment only. Sognier, J., dissents.

Sognier, Judge,

dissenting.

I respectfully dissent.

Appellant, the investigating officer, and the eyewitness who had been traveling behind appellant all testified that the collision occurred on Colerain Road, a two-lane road. Their testimony and the photographs taken by the officer at the scene established that the collision occurred in the right lane of that road. Both appellant and the eyewitness testified that appellee was driving slowly in a wavering manner, and that he stopped in the travel lane and began to turn in front of appellant, who applied her brakes, leaving a 105 foot skid mark. Appellee did not simply have “poor recall” as the majority suggests. Instead, he testified that the collision occurred on Interstate 95. He stated that he was traveling in the right lane of that four-lane interstate highway, that he saw appellant in the left lane, and that the impact occurred when he pulled into the left lane in front of her. He offered no explanation for the difference between his version of the collision, which placed the impact in the left northbound lane of 1-95, and the version proffered by appellant, the officer, and the eyewitness, and confirmed by the officer’s photographs, which clearly depict a two-lane road.

Decided July 13, 1990

Rehearing denied July 30, 1990 — Cert, applied for.

Dickey, Whelchel, Brown & Readdick, Terry L. Readdick, for appellant.

Gibson & Jackson, Douglas L. Gibson, for appellee.

“The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague or equivocal. And he is not entitled to a finding in his favor if that version of his testimony the most unfavora-, ble to him shows that the verdict should be against him.” (Citations and punctuation omitted.) Bufford v. Bufford, 223 Ga. 133, 134-135 (3) (153 SE2d 718) (1967). “If that most unfavorable position shows that the party is not entitled to prevail, unless other evidence shows compellingly that he should prevail, he must lose. [Cit.]” Veal v. Fraser, 155 Ga. App. 157, 161 (2) (270 SE2d 250) (1980). When appellee’s vague and equivocal testimony is so construed, the undisputed evidence shows that the collision occurred after appellee stopped in the right lane of a two-lane highway and began making a turn, that he was hit broadside rather than in the rear, that appellant applied her brakes and left a 105 foot skid mark, and that the investigating officer found no act of appellant that contributed to the collision. Under these circumstances, I find that the jury’s conclusion was the result of mere speculation, not reasonable inferences from the evidence, see Layton v. Knight, 129 Ga. App. 113-114 (198 SE2d 915) (1973), and accordingly I would reverse the denial of appellant’s motion for judgment n.o.v.


author: Deen, Presiding Judge. Pope, Judge,

text:
    A90A0589.
    BELL et al. v. SAMARITANO.
    (396 SE2d 520)
   Deen, Presiding Judge.

The appellants, Rhonda Bell, Loyd Richard Deaver and Olen Pirkle Smith are hairdressers who formerly worked in a shop owned by the appellee, Mario Samaritano. Deaver rented space to open his own hairstyling shop approximately one mile from Samaritano’s and Bell and Smith joined him at that new place of business. All three appellants resigned on the same day and Bell and Smith took with them certain index cards containing the names and addresses of customers and, most importantly, bearing notations as to the proper formulas for chemical processing administered to customers, such as permanent waves and hair coloring. The appellants filed separate claims against Samaritano for wages allegedly owed to them for their last week of work. Samaritano counterclaimed for conversion of the chemical processing cards which he claimed belonged to him. The cases were consolidated for trial. At trial, in addition to the claim for conversion, Samaritano also presented evidence to support a claim for tortious interference with contractual relations for the hiring away of his former employees. The trial court directed a verdict to the appellants as to the wages owed them and the jury returned a verdict of $24,067 actual damages and $15,000 punitive damages on Samaritano’s counterclaim. Bell, Deaver, and Smith appeal.

1. Sufficient evidence was presented to create an issue for jury determination as to whether defendant-in-counterclaim Deaver was liable as a joint tortfeasor with the other two defendants-in-counterclaim and whether defendants-in-counterclaim Bell and Smith were liable for conversion of property allegedly belonging to plaintiff-in-counterclaim Samaritano for removing customer cards from his place of business.

2. Although the appellants acknowledge that they expressly acquiesced to the jury instructions given by the trial court by stating, in response to the trial court’s inquiry, that they had no objection to the jury charge, they contend that their enumerations of error regarding the jury instructions should be addressed pursuant to OCGA § 5-5-24 (c).

In Irvin v. Oliver, 223 Ga. 193, 196 (2) (154 SE2d 217) (1967), the Supreme Court construed the predecessor to OCGA § 5-5-24 (c) as referring “only to the failure to make objection to the charge, and not to those instances where the giving of an instruction, or the failure to give an instruction, is . . . specifically acquiesced in by counsel.” The Supreme Court did not differentiate between cases where counsel acquiesced in the giving of a charge and cases where counsel acquiesced in the failure to give a particular charge. If counsel expressly acquiesces in the jury charge as given, any objection to either the inclusion or the omission of a particular charge is waived. Under Irvin v. Oliver, supra, the appellants waived any objection to the jury charge.

3. The appellants also contend that the trial court erred in overruling their objection to the opinion testimony of an expert witness for Samaritano. The record shows that counsel for Samaritano asked the witness a question about the value of a customer list, which prompted an objection from the appellants asserting lack of foundation. The trial court instructed Samaritano’s counsel to rephrase the question, which he did, and the witness answered the question without further objection by the appellants. Under these circumstances, the appellants preserved no objection for review.

Judgment affirmed.

McMurray, P. J., Banke, P. J., Birdsong and Beasley, JJ., concur. Carley, C. J., concurs in the judgment only. Sognier, Pope and Cooper, JJ., dissent.

Pope, Judge,

dissenting.

I dissent from Division 2 of the majority opinion. Appellants’ first five enumerations of error address alleged deficiencies in the trial court’s instructions to the jury. The first enumeration of error asserts the trial court erred in failing to charge the jury on the measure of damages for appellee’s counterclaim for tortious interference with contractual relations between the appellee and his employees. The record reflects that the jury was instructed on the measure of damages for conversion of personal property but no instruction was given on the measure of damages on the tortious interference claim. Appellants expressly acquiesced to the instructions given by the trial court by stating, in response to inquiry at the conclusion of the charges, that they had no objection to the charges. However, I disagree with the majority that the appellants thus waived their right to object to the charge on appeal.

Pursuant to OCGA § 5-5-24, an appellant in a civil case may not complain of the failure to give instructions to the jury if no objection was made to the instructions before the jury returns its verdict unless, on appellate review, it appears that a substantial error was made in the charge which was harmful as a matter of law. Here, the charge was deficient as a matter of law. “Where several different elements of damages are claimed, it is error requiring the granting of a new trial for the judge to fail in his charge to the jury to give them any rule for estimating the damages claimed; and this is true notwithstanding no written request for such charge is made by the [appealing party].” (Citations and punctuation omitted.) Southeastern Greyhound Lines v. Hancock, 71 Ga. App. 471, 473-474 (31 SE2d 59) (1944). Because the jury was given no instruction on the measure of damages for one of the theories of recovery alleged in the counterclaim, I conclude that the failure amounted to error as a matter of law even though the appellants failed to request such a charge and stated they had no objection to the charges given as a whole.

Decided July 11, 1990

Rehearing denied July 30, 1990 — Cert, applied for.

Davidson & Fuller, Stephen P. Fuller, for appellants.

Michael J. Anderson, for appellee.

Those cases in which the appellate courts have held that OCGA § 5-5-24 (c) does not preserve the issue for appeal, when the appellant specifically acquiesced to the charge, have involved instances in which the objection related to the giving of a particular instruction and not to the failure to give instruction. See Irvin v. Oliver, 223 Ga. 193 (2) (154 SE2d 217) (1967); Brown v. Garcia, 154 Ga. App. 837 (1) (270 SE2d 63) (1980). In fact, in both these cases, the record shows a discussion was held between the trial judge and counsel for appellant on the specific charge which was later made an issue on appeal and the counsel acquiesced to the giving of that particular charge. Here, counsel merely made a blanket response of “no objection” to the trial court’s inquiry at the conclusion of the instructions as a whole. An inquiry as to whether the parties have any objection to the charge is almost universally made by trial judges at the conclusion of their instructions to the jury. By holding that a negative response to that question (as opposed to positive acquiescence to a particular charge, as in the cases cited above) will preclude an appeal on a charge that is deficient as a matter of law, the majority, I believe, has left OCGA § 5-5-24 (c) with no purpose or meaning.

I agree that the remaining four enumerations of error relating to the charge to the jury have no merit. Appellants failed to raise an objection to these charges at trial and since, unlike the first enumeration of error, these remaining enumerations of error do not involve charges which are erroneous as a matter of law, then objection to them is waived and we may not review these charges pursuant to OCGA § 5-5-24 (c).

I am authorized to state that Judge Sognier and Judge Cooper join in this dissent.


author: Cooper, Judge.

text:
    A90A0608.
    BATTS v. BOZEMAN & SON, INC.
    (396 SE2d 505)
   Cooper, Judge.

Appellant appeals the trial court’s grant of summary judgment in this “slip and fall” case.

Appellant slipped and fell while walking through the entrance of a Western Sizzlin restaurant, owned by appellee. Appellant testified in her deposition that she had eaten lunch there many times and was accompanied on the day of the accident by co-workers, including Estelle Mann. Appellant maintains she was entering the restaurant, exercising ordinary care for her own safety, when she fell. Her testimony reveals that, although she claims to have slipped on something greasy, she does not know exactly what caused her fall. The complaint alleges appellant fell due to appellee’s “negligent failure to keep the floor in the restaurant free and clear from being unduly slick and hazardous.” Appellant contended that the ceramic tile floor was of an unduly slick and hazardous nature and that this condition was known by appellee.

The trial court concluded that the affidavit of Stanley Bozeman “pierced the pleadings as to the existence of any defect in or on the floor” and that appellant failed to establish the existence of a defect and the appellee’s knowledge thereof. We agree. Bozeman’s affidavit established that the ceramic tile floor had never been waxed and was cleaned daily at the close of business; that Bozeman went to the location of the fall immediately after the incident and observed no foreign substance on the floor or on appellant’s shoes; and that at least thirty other people had entered the restaurant prior to appellant without incident. Contrary to appellant’s contention, Bozeman did not state that the tile was unduly slick.

Appellant contends on appeal that the trial court erred in granting summary judgment on the basis that she failed to produce any evidence that the ceramic floor was unduly slick or hazardous. In support of her contentions, appellant relies on the affidavit of Estelle Mann which stated that Mann was an eyewitness to the incident; that the ceramic finish was unduly slippery and covered by runners in other sections of the restaurant; that she witnessed slipping by others prior to the date of the accident; and that her son-in-law had previously fallen similarly.

The trial court correctly concluded that proof of the existence of a defect and the defendant’s knowledge thereof are both required in this type of case. Food Fair v. Mock, 129 Ga. App. 421, 422 (199 SE2d 820) (1973). Appellant’s decision to appeal the court’s finding as to the first element only must be interpreted as a concession that the court was correct in its ruling on the second element which means appellant failed to satisfy her burden in defending against summary judgment. However, in an abundance of caution we will consider the arguments made by appellant in this appeal.

In response to appellee’s piercing evidence in support of its motion for summary judgment, appellant “had to set forth specific facts and present her case in full in order to show there was a genuine issue for trial. [Cit.] This she failed to do.” Gross v. Frank’s Warehouse Foods, 192 Ga. App. 539, 540 (385 SE2d 688) (1989). Appellant’s own testimony reveals that she was unaware of the cause of her fall. Estelle Mann’s affidavit concludes the floor was unduly slippery, however, that assertion is not supported by any probative evidence, as appellee correctly contends, of defects in the tile or its coating or evidence of the “quality of material used or the methods which [appellee] used in . . . maintaining its floor.” Alterman Foods v. Ligon, 246 Ga. 620, 624 (272 SE2d 327) (1980). In addition, despite Mann’s observations, there is no evidence in the record that appellee had either actual or constructive knowledge of any prior falls. Accordingly, the trial court did not err in granting summary judgment.

Decided June 27, 1990

Rehearing denied July 30, 1990.

M. Michael Kendall, for appellant.

David N. Lefkowitz, Carter & Ansley, Robert A. Barnaby II, for appellee.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A90A0649.
    CIRCLE K GENERAL, INC. v. DEPARTMENT OF TRANSPORTATION.
    (396 SE2d 522)
   Beasley, Judge.

Circle K owns property at the corner of Peachtree Industrial Boulevard and Winters Chapel Road. The Department of Transportation brought condemnation proceedings against Circle K and obtained .008 of an acre of land and two easements. The condemnation was part of a project to convert Peachtree Industrial Boulevard into what DOT called a “controlled access road” or what Circle K says is a “limited access road” under OCGA § 32-1-3 (14). On each side of the new Peachtree Industrial through road will be one-way service roads. Peachtree Industrial will become a raised roadway over Winters Chapel.

Circle K has operated a filling station and quick stop grocery on the corner and has had unlimited access to its property from Peach-tree Industrial and Winters Chapel Road. When the project is finished, Circle K will have no direct access to Peachtree Industrial. It will have indirect access via the service road abutting its property and the exit and entrance ramps from Peachtree Industrial. The closest entrance and exit ramp to Circle K from Peachtree Industrial will be 2,000 feet away. Circle K claims consequential damages, alleging an impairment of access to its property.

The court granted DOT’s motion in limine in part, ruling that: “ordinarily the Defendant would not be entitled to compensation for damages resulting in the change in access to Peachtree Industrial Boulevard. However, the Defendant would be entitled to recover for any damages from the change in access which would be unique to itself and not of the same kind as the general public meaning the other property owners along Peachtree Industrial Boulevard whose access was also changed.” The court regarded as controlling MARTA v. Fountain, 256 Ga. 732 (352 SE2d 781) (1987).

The limitation was error. The decisions in Department of Transp. v. Whitehead, 253 Ga. 150 (317 SE2d 542) (1984), and Clayton County v. Billups Eastern Petroleum Co., 104 Ga. App. 778 (123 SE2d 187) (1961), control. Circle K has the right to present evidence to show that its access has been substantially restricted. “The right of access, or easement of access, to a public road is a property right which arises from the ownership of land contiguous to a public road, and the landowner cannot be deprived of this right without just and adequate compensation being first paid. [Cits.] The easement consists of the right of egress from and ingress to the abutting public road and from there to the system of public roads. [Cit.]” MARTA v. Datry, 235 Ga. 568, 575 (220 SE2d 905) (1975).

In Whitehead, the Supreme Court affirmed a decision to admit evidence showing the property owner’s inconvenience and circuity of travel after a portion of his land was condemned and his access to a public road was eliminated. The jury awarded Whitehead consequential damages for the interference with access to the remaining portion of his property. Billups held that a cause of action existed as to a property owner’s allegations of substantial impairment of access to his property after conversion of the abutting road to a limited access road. Based on these two cases, evidence of Circle K’s impairment of access onto the public through road abutting its property should not be foreclosed.

This case differs from MARTA v. Fountain, supra. There the property, owner, sought, on a theory of inverse condemnation, damages for what amounted to merely a change in traffic pattern after the traffic past his business was rerouted and the road abutting his property was converted to a dead end street. The Supreme Court held that MARTA was not liable for damages to Fountain because none of Fountain’s former access to East Lake Drive or West Howard was interfered with. Since access was not diminished, there was, by law, no condemnation.

Circle K’s access to Peachtree Industrial has been impaired. The service road is not per se a substitute for the through road, as related to Circle K’s property. Access to the highway is not “the same” as before. Department of Transp. v. Katz, 169 Ga. App. 310 (312 SE2d 635) (1983). It is up to the trier of fact to decide if there has been substantial impairment and if so, the value. Whether a property owner has “reasonable access” to the property under the circumstances and whether the existing access was “substantially interfered with” are questions of fact to be decided by the jury. DeKalb County v. Glaze, 189 Ga. App. 1, 2 (375 SE2d 66) (1988).

Decided July 11, 1990

Rehearing denied July 30, 1990 — Cert, applied for.

Harold A. Lassman, for appellant. .

Michael J. Bowers, Attorney General, Roland F. Matson, Senior Assistant Attorney General, Cheeley & Chandler, Richard B. Chandler, Jr., for appellee.

Where the damage “resulting from any such inconvenience is based upon the elimination of his easement of access, [the property owner’s] damage is special and not the same as that suffered by the public in general.” Whitehead, supra at 152. See State Hwy. Dept. v. Irvin, 100 Ga. App. 624, 626 (112 SE2d 216) (1959). Applying this standard, Circle K’s impairment of access is special and not merely damage that is “different from that of the general public in degree only, and not in kind.” Tift County v. Smith, 219 Ga. 68, 72 (131 SE2d 527) (1963).

Other jurisdictions are in agreement. In State Dept. of Transp. v. Stubbs, 285 S2d 1 (Fla. 1973), the court determined that the issue of whether damages were different in kind from neighbors affected by the taking was not entirely dispositive. The court determined that the real issue was whether or not there had been a substantial diminution in access to the property as a result of the taking. Substantiality was held to be a jury issue. Accord Hendrickson v. State, 267 Minn. 436 (127 NW2d 165) (1964); Douglas County v. Briggs, 286 Or. 151 (593 P2d 1115) (1979).

Circle K has no right to traffic flow past its business or compensation for a change in traffic pattern. Department of Transp. v. Coley, 184 Ga. App. 206, 208 (1) (c) (360 SE2d 924) (1987); Department of Transp. v. Katz, supra. It does have a right of access to its property and a correlative right to be paid for its substantial impairment.

Judgment reversed.

Deen, P. J., and Pope, J., concur.


text:
    A90A0679.
    JIM WALTER HOMES, INC. v. ROBERTS.
    (396 SE2d 787)
   Cooper, Judge.

On June 24, 1986, appellee was injured while in the course of her employment with appellant; subsequently, appellant, through its insurer, commenced payment of workers’ compensation benefits to appellee. In October 1986, appellee, who had ceased her employment relationship with appellant and moved to Florida, sought additional medical treatment, which appellant refused to authorize, forcing appellee to return to Georgia to obtain “authorized” medical treatment. On February 10, 1989, appellee filed an action, which was a renewal of a previous action, against a hospital, two of her treating physicians, appellant and appellant’s insurance carrier. In Counts I, II, and III of the complaint, appellee alleged malpractice on the part of the hospital and physicians; in Count IV, appellee alleged that appellant’s insurer failed to authorize treatment when she was in need of surgery; and in Count V, appellee alleged that appellant and its insurer failed to authorize payment for necessary medical treatment, conspired to deprive appellee of adequate medical care, attempted to dissuade appellee from ascertaining the truth about the extent of her injuries, and wilfully deprived her of adequate medical care, which actions resulted in her total disability. Appellee prayed for damages against appellant in the amount of one million dollars in general and special damages and one million dollars in punitive damages. Appellant failed to answer the complaint and a default judgment was entered against appellant on all issues except damages. On July 18, 1989, following a trial on the issue of damages, the court entered a judgment against appellant for 1.5 million dollars in general damages and $500,000 in punitive damages; the trial court entered findings of fact and conclusions of law, finding that appellant had participated in a scheme which served to deprive appellee of proper and adequate medical care and treatment, that as a result of this lack of adequate and timely medical care, appellee is suffering and will suffer total physical disability for the remainder of her life, and that the acts of appellant constituted wilful and wanton acts rising to the level of outrageous conduct. Appellant, unaware that a money judgment had been entered, filed a motion to open default and vacate judgment but after discovering that a money judgment had been entered, filed a motion to set aside the judgment. On October 31, 1989, the trial court entered an order denying appellant’s motions to open default and set aside judgment, amended its July 18, 1989 order by reducing the amount of general damages to one million dollars, and entered a supplemental judgment to reflect the amended damages. On November 17, 1989, appellant filed a notice of appeal which specifically stated that the appeal was from the order denying appellant’s motion to set aside default judgment. However, on December 14, 1989, appellant filed an amended notice of appeal stating that in its original notice of appeal it inadvertently specified that the appeal was from the order denying its motion to set aside rather than that portion of the order which it intended to appeal — the entry of final judgment against appellant in the amount of 1.5 million dollars.

1. Appellee has moved to dismiss the appeal on the grounds that appellant is appealing from the denial of its motion to set aside and has not complied with the discretionary appeal provisions of OCGA § 5-6-35. Appellant’s amended notice of appeal states that it is an appeal from the final judgment entered on October 31, 1989 awarding appellee money damages and is not an appeal from the denial of its motion to set aside. Appellant further contends that the judgment entered on July 18, 1989 was not a final judgment because it did not comply with OCGA § 9-11-54 (b) which provides: “[w]hen more than one claim for .relief is presented in an action, ... or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” (Emphasis supplied.) It is evident that the judgment entered July 18, 1989, did not contain an express determination that there is no just reason for delay and an express direction that judgment be entered; therefore, the judgment was not final and appellant could not have appealed from that order. Daniell v. Heyn, 169 Ga. App. 772 (1) (315 SE2d 284) (1984). Since the October 31, 1989, order contained the language of OCGA § 9-11-54 (b), appellant is entitled to bring an appeal.

2. In appellant’s first enumeration of error, it contends that the court lacked subject matter jurisdiction because the underlying issue is a workers’ compensation matter. “Due to [its] default, [appellant] is in a position of having admitted each and every material allegation of [appellee’s] complaint except as to the amount of damages suffered by [appellee].” Whitby v. Maloy, 150 Ga. App. 575 (1) (258 SE2d 181) (1979). Thus, by defaulting appellant has admitted that it entered into a civil conspiracy with its insurer to wilfully deprive appellee of adequate medical care to the extent that appellee suffered total disability, and that in an attempt to dissuade appellee from ascertaining the truth as to the extent of her injuries, it committed conspiratorial acts which constituted a wilful, wanton and reckless disregard of the rights and welfare of the appellee. Based on appellant’s admissions, the trial court found that it had jurisdiction over the action because the complaint was based upon wilful and intentional torts committed outside the purview of the Workers’ Compensation Act. We find no error with the trial court’s ruling and conclude that the judgment is not void for lack of subject matter jurisdiction. Although appellee’s original injury occurred within the scope of her employment with appellant, appellee alleges in her complaint that she suffered physical disability due to the failure and refusal of appellant to authorize necessary medical treatment. The report of Dr. Walter Epple, admitted as part of the affidavit of appellee’s expert stated, in pertinent part;

“It is unfortunate that the insurance company made the patient see another doctor after Dr. Lerner become [sic.] involved, because I feel that he would have continued to persue [sic.] the lumbar radiculopathy and would have performed definitive surgery on this lady. It is unfortunate that the new physician . . . was sort of thrown into the case because many times when the insurance company does this with a person of psychological imbalance; and indeed I believe that Dr. Lerner referred to a psychiatrist — all in the face of severe neurological deficits which should have been operated on at that time, and therefore, it is my opinion that Dr. Lerner — unfortunately caught in the web of insurance company demands and soforth [sic.], as already described above — did not adhere to the normal standards of care . . . and his failure to perform definitive surgery was the proximate cause of the injury.”

Thus, the injury appellee alleges is an intentional physical injury resulting from appellant’s refusal to authorize necessary treatment, rather than an intentional financial injury resulting from a delay in paying workers’ compensation benefits. Compare Bright v. Nimmo, 253 Ga. 378, 381 (320 SE2d 365) (1984). We conclude that appellee’s uncontradicted complaint sets forth a common law cause of action which the trial court had jurisdiction to decide. See Cox v. Brazo, 165 Ga. App. 888 (1) (303 SE2d 71) (1983); Murphy v. ARA Svcs., 164 Ga. App. 859 (298 SE2d 528) (1982).

3. In its second enumeration appellant contends that the final judgment is erroneous because it violates the exclusive remedy provision of the Georgia Workers’ Compensation Act. For the reasons discussed in Division 2 we find this enumeration of error to be without merit.

4. Appellant contends that the trial court erred in finding that it had no power to open the default. It appears from the record that the trial court concluded that the July 18, 1989, order was a final judgment which precluded the court from opening the default under OCGA § 9-11-55 (b). Although that conclusion is erroneous (Cryomedics, Inc. v. Smith, 180 Ga. App. 336, 337 (349 SE2d 223) (1986)), the order reflects that the trial court found that no showing of excusable neglect had been made and that no proper case had been made for opening the default under OCGA § 9-11-55 (b). “Excusable neglect can be determined not by any fixed rule, but rather by the circumstances of each individual case. [Cit.] This determination is within the sound discretion of the trial court, and will not be disturbed by the appellate court absent abuse of discretion. [Cit.]” Dever v. Lee, 188 Ga. App. 483 (2) (373 SE2d 224) (1988). We find that the trial court did not abuse its discretion.

Decided July 12, 1990

Rehearing denied July 30, 1990 — Cert, applied for.

Wilson, Strickland & Benson, Warner R. Wilson, Jr., Earl B. Benson, Jr., Anne E. Ware, for appellant.

Bobby H. Barton, Kenneth R. Chance, for appellee.

5. Appellant’s contention that the failure to give it notice of the trial on the damages issue constituted a denial of due process is without merit. OCGA § 9-11-5 (a) states: “[T]he failure of a party to file pleadings in an action shall be deemed to be a waiver by him of all notices, including notices of time and place of trial. . . .” Appellant having failed to file any pleadings in the case is deemed to have waived notice of the trial on damages. See Hulsey Pool Co. v. Troutman, 167 Ga. App. 192 (1) (306 SE2d 83) (1983).

Judgment affirmed.

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


text:
    A90A0966.
    WHEELER’S, INC. v. WILSON.
    (396 SE2d 790)
   Beasley, Judge.

The particulars which gave rise to this lawsuit are fully set forth in Wilson v. Wheeler’s, Inc., 190 Ga. App. 250 (378 SE2d 498) (1989). Wheeler’s, a building supply store, had taken out a criminal warrant against Wilson for presenting an allegedly bad countercheck, and she was arrested and released on bond. The assistant solicitor ultimately recommended that the charge against her not be prosecuted. Wilson sued for malicious prosecution. This court reversed the grant of summary judgment to Wheeler’s and remanded the case for resolution of the facts as to whether Wheeler’s acted reasonably in prosecuting.

Wheeler’s then filed in the trial court a motion to dismiss the complaint on the basis of insufficient service of process. Later, it amended the motion to demand dismissal on the merits and judgment in its favor on all remaining issues. Wheeler’s also counterclaimed for special damages, costs, and attorney fees. We granted interlocutory appeal from an adverse ruling.

The issue posed by three enumerations of error, the disposition of which moots the fourth, is whether Wheeler’s by its actions waived an alleged defect in service and thereby consented to the jurisdiction of the trial court.

Roberts v. Bienert, 183 Ga. App. 751, 755 (2) (360 SE2d 25) (1987), is the culmination of a line of cases which carve an exception to the general rule that “if there is a defect in service of process, ‘any act by which one consents to the jurisdiction of the court constitutes a waiver [Cits.].’ ” Georgia Power Co. v. O’Bryant, 169 Ga. App. 491, 492 (313 SE2d 709) (1984), cited in Roberts, supra at 753. Stallings v. Stallings, 127 Ga. 464 (6) (56 SE 469) (1906), stated the exception: “The rule that appearance and pleading waives irregularities in the process or its absence, and the service thereof, and the other rule which declares that if a defendant appear and plead to the merits, without pleading to the jurisdiction and without excepting thereto, he admits the jurisdiction of the court, have no application so as to effect a waiver where the defendant excepted to the service, moved to dismiss the case for want of service, and pleaded to the jurisdiction at the time of filing his defense.”

Stallings was built on such precedents as Western &c. R. Co. v. Pitts, 79 Ga. 532 (4 SE 921) (1887), and Cox v. Potts, 67 Ga. 521 (1881). Stallings has been consistently relied on as authority for the proposition that “pleading to the jurisdiction and . . . excepting thereto” will vitiate any waiver that may otherwise be implied when the party also pleads to the merits. See, e.g., Shaheen v. Dunaway Drug Stores, 246 Ga. 790 (273 SE2d 158) (1980); Weems v. Weems, 225 Ga. 154 (166 SE2d 352) (1969); Barker v. Wilkinson, 222 Ga. 329 (149 SE2d 698) (1966); Milam v. Terrell, 214 Ga. 199 (104 SE2d 219) (1958); Gaddis v. Dyer Lumber Co., 168 Ga. App. 334 (308 SE2d 852) (1983).

This case comes within that class of cases acknowledged in Roberts where a party by its conduct waives a legal right. That principle was applied in Roberts and it was the court’s opinion that defendant did not fall within its governance. The factors it considered were that Bienert had pleaded the issues of lack of service and insufficiency of service, that he had reasserted them in his motion for summary judgment, “documenting] his intent that he did not waive them,” and that the trial court had recognized and adhered to this affirmative assertion.

Here, although Wheeler’s pleaded insufficient service of process in its answer, it did not move for a hearing on the issue until after the appeal of its motion for summary judgment on the merits was ruled on adversely to it by this Court. Wilson v. Wheeler’s, supra. Defendant Wheeler’s did not reassert it in its motion for summary judgment. Therefore it was not recognized as still ambient, and neither the court nor the opponent was put on notice that this waivable preliminary jurisdictional defense would be insisted on. Nor did this court have the issue before it when it labored over the case the first time. Even in its brief in this court, defendant characterized its motion only as one for partial summary judgment as to liability.

The acts and omissions to act of Wheeler’s are “ ‘ “so manifestly consistent with and indicative of an intention to voluntarily relinquish a then known particular right or benefit, that no other reasonable explanation of [its] conduct is possible.” ’ ” Georgia Power Co. v. O’Bryant, supra. As the court highlighted in that case, in which the issue was whether defendant by its actions waived any defect in service and thus consented to the jurisdiction of the trial court, “any act by which one consents to the jurisdiction of the court constitutes a waiver.” Id. at 492.

The orderly disposition of cases demands adherence to this rule. This is especially true in light of the state’s fundamental policy, expressed in its constitution, that the resolution of disputes is to be by a process that is “speedy, efficient and inexpensive.” Ga. Const. 1983, Art. VI, Sec. IX, Par. I. That policy is carried forward as the stated spirit of the Civil Practice Act: “to secure the just, speedy, and inexpensive determination of every action.” OCGA § 9-11-1.

This two-party case was idled on July 23, 1987. Defendant’s answer, filed in August, states as the second defense that “Process and service of process herein is insufficient at law.” Defendant Wheeler’s motion for summary judgment on the merits, filed the following April, did not mention this defense or allude to it in any way. Discovery, a number of briefs, and affidavits were filed over a period of several months. Never once in the record beyond the answer did defendant put forth, either in argument or in discovery, the issue of sufficiency of service. It acknowledges on appeal that it could have been pursued earlier, by motion. Whether it waited so as to allow the statute of limitation to expire before a ruling that service was insufficient is not shown. (The parties are in dispute over whether the two-year statute expired February 22, 1988, so that the cause would have been dead even before defendant filed its motion for summary judgment on it, or on August 24, 1988, so that pursuit of the issue at the time the motion for summary judgment was filed could have afforded the opportunity for new service if deemed necessary.)

The return of service is not even in that record. All of the litigation activity culminated on June 29, when the trial court granted the motion after “careful review” of the entire record.

As was fairly inevitable, plaintiff appealed the summary ending of her hotly-contested lawsuit. The record was copied and sent up, briefs were filed, and the prescribed three judges of this court examined the case and set out their opinion reversing the judgment in January 1989. In its brief in this court, Wheeler’s contended that it relied in the trial court on two defenses, immunity under OCGA § 16-9-20 and probable cause. Nothing was said of service of process. After this court ruled that the statutory immunity was inapplicable and that issues of fact existed regarding probable cause, Wheeler’s, not content to go back to the superior court for trial or even to attempt to resurrect its sufficiency of service defense, filed a substantial motion for rehearing and then petitioned for certiorari, invoking the time and consideration of seven more judges. It was denied. 190 Ga. App. 899.

On April 24, 1989, soon after the remittitur and close to two years after suit was filed and service made, and after all the foregoing-described water had flowed over the dam, and after plaintiff had filed a motion to dismiss or for summary judgment on the counterclaim, defendant moved to dismiss plaintiff’s claim for failure of service, claiming that the person served was not a proper person upon whom to perfect service.

Again, after a number of briefs, documents, amendments, and orders constituting 278 pages of record, the trial court denied the motion to dismiss the complaint on this ground. It regarded as controlling the Roberts case and cited also Bigley v. Lawrence, 149 Ga. App. 249, 250 (253 SE2d 870) (1979). The latter held that where defendant files a motion for summary judgment based on the merits of the case, he has made a general appearance and waived any defects in the service of the complaint. That case has not been overruled and was cited in Roberts, supra at 753.

Defendant attempts to cast the burden on plaintiff to pursue reserving defendant when the affirmative defense is raised, rather than acknowledging its burden as to the affirmative defense it has raised and to pursue to judicial determination whether initial service was insufficient and re-service is necessary. Wheeler’s fails to accept that such a defense may be waived even if initially raised. It was defendant’s obligation to bring the affirmative defense to the attention of the court at the proper time if it wished to make an issue of it.

Here there was a waiver. Defendant went forward with an attack on liability, investing extensive time and money and requiring the same of its opponent, and also invoking the time and attention of three courts and eleven judges to the merits and to its immunity defense. There is nothing equivocal about its actions here, which speak louder than its lament as to its late-resurrected, logically threshold defense. Its acts belie its insistence on a preliminary matter pursued only after this court has sent the case back to the trial court for trial on the merits of the plaintiff’s claim.

Concluding that waiver occurred complies with OCGA § 9-11-12 (g) and (h). Subsection (g) allows consolidation of motions regarding then-available defenses as listed in subsection (b). It precludes their being raised thereafter. Subsection (h) expressly states that such defenses, including sufficiency of service, are waived “[i]f omitted from a motion in the circumstances described in subsection (g) of this Code section.” The record establishes that the sufficiency of service defense was available to Wheeler’s when it made its motion for summary judgment on liability on April 13, 1988, and Wheeler’s does not suggest otherwise. Its non-action at that time with respect to this defense, and its actions thereafter up to the time it filed the motion to dismiss on April 24, 1989, following remittitur from this court, constitute waiver.

Decided July 16, 1990

Rehearing denied July 30, 1990 — Cert, applied for.

Barry V. Smith, for appellant.

Duard R. McDonald, for appellee.

To say at this stage of these protracted proceedings that service, the object of which is to provide the opportunity to be heard, (Weddington v. Kumar, 149 Ga. App. 857, 858 (256 SE2d 141) (1979); Tyree v. Jackson, 226 Ga. 690, 693 (177 SE2d 160) (1970)), may not have been properly accomplished, is ludicrous. The lengthy and vigorous litigation in which defendant participated is much more action-packed than in Ga. Power v. O’Bryant, supra, where the crucial act of waiver was defendant’s failure to make any mention of its service of process defense in the pretrial order.

Judgment affirmed.

Pope, J., concurs. Deen, P. J., concurs in the judgment only.


author: Deen, Presiding Judge.

text:
    A90A1178.
    GEORGIA AMERICAN INSURANCE COMPANY v. BURNSED.
    (396 SE2d 793)
   Deen, Presiding Judge.

The appellee, Remer Burnsed, was injured as a passenger in a one-vehicle accident. The vehicle was insured by American Excel Insurance Company under a policy that provided basic no-fault coverage. Burnsed recovered $2,500 under that policy, although the claim was paid by the Georgia Insolvency Pool because American Excel Insurance Company was in receivership. At the time of the accident, Burnsed had a personal automobile insurance policy issued by the appellant, Georgia American Insurance Company, that also provided the basic no-fault coverage; he commenced this action to recover $2,500 for medical expenses under that policy. This appeal follows from the trial court’s denial of summary judgment for the appellant and grant of summary judgment for Burnsed. Held:

In Cannon v. Lardner, 258 Ga. 332 (368 SE2d 730) (1988), the Supreme Court “addressed the question of whether the trial court correctly refused to deduct from the verdict obtained by the injured claimant both the PIP benefits paid by her own insurer and the PIP benefits available under the policy of her father, with whom she lived.” Thomas v. Ga. American Ins. Co., 193 Ga. App. 260, 261 (387 SE2d 401) (1989). In determining whether the basic PIP coverage could be stacked, the court focused on the statutory definition of “insured” at OCGA § 33-34-2 (5), in particular whether the vehicle involved in the collision was “similarly insured” to that under the policy in question; because the incident involved the claimant’s own car, which was similarly insured, the claimant was not an insured under her father’s policy, and the PIP coverage could not be stacked. Cannon v. Lardner, supra at 334.

Decided July 16, 1990

Rehearing denied July 30, 1990 — Cert, applied for.

Doremus, Jones & Smith, Julian B. Smith, Jr., for appellant.

Duffy & Feemster, Dwight T. Feemster, for appellee.

Prior to Cannon v. Lardner, the appellee Burnsed would have been entitled to stack the basic PIP coverage provided by the secondary insurer in this case. See General Accident &c. Corp. v. Kelch, 158 Ga. App. 555 (281 SE2d 258) (1981). However, under Cannon v. Lardner, since the vehicle in which Burnsed was injured as a passenger was similarly insured to his own car under his own automobile insurance policy, Burnsed cannot be considered an insured under his personal policy in this instance. Accordingly, the trial court erred in granting summary judgment for Burnsed and in denying summary judgment for the appellant insurer.

Judgment reversed.

Pope and Beasley, JJ., concur.


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

text:
    A90A0080.
    MENDOZA v. THE STATE.
    (396 SE2d 576)
   Pope, Judge.

Defendant appeals his conviction of driving under the combined influence of alcohol and drugs, OCGA § 40-6-391 (a) (3). Defendant was charged with three counts of DUI. Count 1 charged DUI/alcohol pursuant to OCGA § 40-6-391 (a) (1). Count 2 charged DUI/drugs pursuant to OCGA § 40-6-391 (a) (2). Count 3 charged DUI/combined alcohol and drugs. Defendant was acquitted of Count 2, driving under the influence of drugs, OCGA § 40-6-391 (a) (2). The court directed a verdict of “not guilty” as to Count 1, driving under the influence of alcohol, OCGA § 40-6-391 (a) (1), which the jury returned. Although the dissent finds the result incongruous, the record positively reflects evidence to support the conviction as set out in Division 1. Had the trial court chosen to do so, it could have submitted Count 1, the DUI/ alcohol (alone) charge to the jury. However, the fact that it did not, does not affect the validity of the conviction. See Vann v. State, 153 Ga. App. 710 (2) (266 SE2d 349) (1980).

1. Defendant argues that the trial court should not have permitted a State’s witness, a police officer, to testify that defendant was under the influence of drugs because there was an insufficient foundation laid for the officer’s opinion. Specifically, defendant objected to allowing the officer to testify about his use of two field sobriety tests, the “horizontal gaze nystagmus” (HGN) test and the “hippus” test. In the HGN test the officer has the suspect follow an object with his eyes. A jerking movement indicates drug use. In the hippus test, the officer shines a light in the suspect’s eyes and observes the contraction or fixation of the pupils to indicate drug use. Because the officer could not give the scientific basis for each of these tests, including evidence of the scientific validity and reliability of the tests, defendant argues that evidence of these tests should have been excluded and the officer should not have been allowed to give his opinion that defendant was under the influence of drugs. However, upon the record before us, we need not reach the issue of the scientific validity of these tests.

The record shows that Mendoza was acquitted of Count 2, driving under the influence of drugs, but was convicted of Count 3, driving under the influence of alcohol and drugs. Even excluding evidence of the tests, there was sufficient other evidence to support a conviction for driving under the influence of alcohol. See Division 2, infra. The arresting officer testified that he observed Mendoza driving on the wrong side of the road. When he stopped Mendoza and questioned him outside his car, Mendoza was unsteady on his feet, showed glassy and bloodshot eyes and tested positive for alcohol on the alcosensor; Mendoza also refused to submit to a chemical test of his blood. This is sufficient to support Mendoza’s conviction. That the evidence showed use only of alcohol and not of drugs does not create a fatal variance between the accusation and the proof. Vann v. State, supra.

In addition, the record shows that the trial court twice sustained Mendoza’s objections to evidence of the officer’s interpretation of the two tests question. The trial court did allow the officer to state that it was his opinion, based upon the totality of the circumstances, that Mendoza was under the influence of drugs. Thus, upon this record, there is no issue for review regarding the tests because the court sustained objections to them. There is no reversible error in the trial court’s decision to allow the officer’s opinions regarding drug use because the jury acquitted Mendoza of the count based solely on drug use.

2. Defendant argues that he was entitled to a directed verdict of acquittal because the scientific reliability of the field tests performed by the officer was not established, so there was no basis for the arresting officer’s opinion that defendant was under the influence of drugs. Because no forensic evidence of defendant’s use of either alcohol or drugs existed (due to defendant’s refusal to submit to either blood or urine tests for determining alcohol or drug use), defendant argues that there is no competent evidence to show drug use beyond a reasonable doubt.

The court in Brooks v. State, 187 Ga. App. 194, 195 (1) (369 SE2d 801) (1988), held: “This refusal [to submit to a test] itself may be considered as positive evidence creating an inference that the test would show the presence of the prohibited substance. OCGA § 40-6-392 (c); Wessels v. State, 169 Ga. App. 246 (312 SE2d 361) (1983).” In addition, the officer’s conclusion that defendant was under the influence of drugs was based upon more than the two specific tests to which defendant objected.

Construed in favor of the verdict, the evidence was such that a rational trier of fact could have found proof of defendant’s guilt beyond a reasonable doubt. Merrell v. State, 192 Ga. App. 100, 101 (1) (383 SE2d 905) (1989).

3. Defendant assigns error in the exclusion of the specific quantitative result of his alco-sensor test, which was .03 grams percent of alcohol. The officer did testify that the test showed “positive for alcohol.”

This court has recognized that an alco-sensor test is not evidence of the amount of alcohol in a person’s blood, but is rather a screening device to determine whether there is probable cause that a defendant is driving under the influence of alcohol. Sturdy v. State, 192 Ga. App. 71, 72 (383 SE2d 632) (1989); Whiteley v. State, 188 Ga. App. 129 (1) (372 SE2d 296) (1988); Turrentine v. State, 176 Ga. App. 145, 146 (1) (335 SE2d 630) (1985). Although Ronskowsky v. State, 190 Ga. App. 147, 148 (2) (378 SE2d 185) (1989), affirmed the admission of the results of an alco-sensor test where the State introduced a document certifying the device had been approved by the GBI’s Division of Forensic Sciences, this does not mean its measurement of the amount of alcohol percentage was permitted. Ronskowsky was based on Turrentine, supra, which distinguished between the alco-sensor results, which are used to alert the officer to the presence of alcohol, and the intoximeter test, which is used to gauge the amount of alcohol. The officer in this case was permitted to testify that the test showed the presence of alcohol. The exclusion of the quantitative result of the alco-sensor test was not reversible error.

Judgment affirmed.

McMurray, P. J., Banke, P. J., Birdsong and Cooper, JJ., concur. Deen, P. J., concurs specially. Carley, C. J., Sognier and Beasley, JJ., dissent.

Deen, Presiding Judge,

concurring specially.

While concurring fully with the majority opinion, I would further allow as admissible the officer’s opinion based on the “hippus” test and the “nystagmus” (HGN) test. The former is an observation of the reaction of one’s pupils repeatedly dilating and contracting while a light is shone in one’s eyes, indicating that one has consumed drugs; while the latter is an observation of a jerking movement of one’s eyes as a possible result of drug usage. If in doubt, evidence should be admitted for evaluation by the jury. While experts could debate the scientific validity and value of interpretations of personal observations, this does not appear to be the type of procedure, technique, or official test requiring ascertainment by the trial judge of a scientific stage of verifiable certainty. See Harper v. State, 249 Ga. 519 (292 SE2d 389) (1982).

“The gqze nystagmus test, as do other commonly used field sobriety tests, requires only the personal observation of the officer administering it. It is objective in nature and does not require expert interpretation.” (Emphasis supplied.) State v. Nagel, 506 NE2d 285, 286 (Ohio App. 1986). We held in Lawrence v. State, 157 Ga. App. 264 (277 SE2d 60) (1981), that “[a] witness who satisfactorily shows that he had an opportunity to observe, and did observe, the condition of another may testify whether that person was under the influence of intoxicants and the extent thereof, stating the facts upon which the opinion is based.” Personal observations and interpretations of “HGN” and “hippus” evidence are proper as to the issue of intoxication but not as to precise blood alcohol content. These observations are admissible for qualitative but not quantitative purposes. Any lay person as a witness may give an opinion as to intoxication. Lawrence, supra. See Howard v. State, 744 SW2d 640 (Tex. App. 1987). I would affirm the conviction of driving under the combined influence of alcohol and drugs. OCGA § 40-6-391 (a) (3).

Beasley, Judge,

dissenting.

1. The court holds that the evidence was sufficient “to support a conviction for driving under the influence of alcohol.” But the trial court had directed a verdict of “not guilty” as to driving under the influence of alcohol, and the jury returned such a verdict. Therefore, it could not also find defendant guilty of driving under the combined influence of alcohol and drugs, OCGA § 40-6-391 (a) (3), by finding beyond a-reasonable doubt that defendant was guilty of driving under the influence of alcohol.

2. The conviction of driving under the combined influence requires consideration of the issue of the foundational proof of the scientific validity of the tests depended on by the officer in giving his opinions.

When the police officer testified, defendant objected to the admission of the field evaluations as a basis for his opinion and was overruled. No evidence was submitted to show that the officer’s observations of defendant’s eye reactions were valid indications of drug usage. This conclusion of the officer was, according to the record, based only on the officer’s having learned these techniques from what he stated was a state-certified DUI detection and apprehension school and police-sponsored classes.

He simply testified that the jerking of the eye would indicate “[s]omeone being under the influence of either alcohol or drugs.” He testified that the dilation of the pupil indicated “possible drug usage” and that the repeated dilation and contraction “indicates drug usage.”

The officer was not able to cite scientific authority for the use or reliability of these tests. In Harper v. State, 249 Ga. 519, 525 (1) (292 SE2d 389) (1982), the Supreme Court determined “that it is proper for the trial judge to decide whether the procedure or technique in question has reached a scientific stage of verifiable certainty, or in the words of Professor Irving Younger, whether the procedure ‘rests upon the laws of nature.’ The trial court may make this determination from evidence presented to it at trial by the parties; in this regard expert testimony may be of value. Or the trial court may base its determination on exhibits, treatises or the rationale of cases in other jurisdictions. . . . The significant point is that the trial court makes this determination based on the evidence available to him rather than by simply calculating the consensus in the scientific community. Once a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature.” This was recently applied in Caldwell v. State, 260 Ga. 278 (393 SE2d 436) (1990).

The method must have reached a “scientific stage of verifiable certainty.” Walraven v. State, 255 Ga. 276, 280 (5) (336 SE2d 798) (1985). Evidence, or exhibits, or treatises, or the rationale of cases in other jurisdictions was never presented to the court charged with making a determination. Williams v. State, 251 Ga. 749 (1) (312 SE2d 40) (1983); Bostic v. State, 173 Ga. App. 494, 495 (2) (326 SE2d 849) (1985). In response to the motion for new trial, the State conceded this to be true. On the other hand, this court has the benefit of cases from other jurisdictions belatedly cited to us by the State. Nevertheless, even if we were authorized to originally appraise the validity of the tests, which we are not, the cases are at best inconclusive as to a general recognition of the scientific verification of the tests.

Decided July 16, 1990

Rehearing denied July 31, 1990.

Davis, Sissel & Williams, Warren P. Davis, for appellant.

Ralph T. Bowden, Jr., Solicitor, N. Jackson Cotney, Jr., Cliff Howard, Assistant Solicitors, for appellee.

The officer was taught how to administer the “hippus” and “HGN” tests and what conclusions he could draw from the results but he gave no basis to establish that they were valid measurements of the influence of drugs on the person’s behavior. This was assumed. The scientific validity of the tests remained unverified, so the trial court should not have allowed the officer’s opinion insofar as he relied upon the tests. Expert testimony or other evidence “must enable the court to determine the reliability of [the test] generally from a scientific basis, as well as specifically under the circumstances of the statement “in [the] case.” Godfrey v. State, 258 Ga. 28, 29 (365 SE2d 93) (1988); Walraven, supra. See Agnor’s Georgia Evidence, § 10-8; Daniel’s Handbook on Criminal Evidence, § 1-49. Absent the tainted tests, the evidence was not overwhelming as to defendant’s guilt and it was not highly probable that the error did not contribute to the judgment. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976). Compare Ross v. State, 192 Ga. App. 850 (1) (386 SE2d 721) (1989).

The judgment should be reversed, as defendant is entitled to a new trial.

I am authorized to state that Chief Judge Carley and Judge Sognier join in this dissent.


author: McMurray, Presiding Judge.

text:
    A90A0345.
    DAVENPORT v. OGLETHORPE POWER CORPORATION et al.
    (396 SE2d 580)
   McMurray, Presiding Judge.

Plaintiff Davenport filed this action for damages against defendants Oglethorpe Power Corporation (“Oglethorpe”) and Rayle Electric Membership Cooperative (“Rayle”), alleging that he was severely injured by contact with a high voltage electric line which had been improperly erected and maintained by defendants. The complaint alleged that defendants were “engaged in and doing business as a single integrated business entity engaged in the joint venture or enterprise of generating and distributing electric energy over the power lines contacted by Plaintiff.” Defendants denied this allegation and defendant Oglethorpe moved for summary judgment relying on evidence that the electric line with which plaintiff came into contact was owned, maintained, and operated solely by defendant Rayle and contending that there was no theory upon which it could be held liable for plaintiff’s injuries. Plaintiff’s cross-motion for partial summary judgment sought a ruling that Oglethorpe is jointly and severally liable for any negligence in the maintenance of the electric line at issue.

Plaintiff appeals following the grant of summary judgment in favor of defendant Oglethorpe and the denial of his cross-motion for partial summary judgment. The primary issue on appeal is whether defendants Oglethorpe and Rayle were joint venturers. Held:

If defendants were joint venturers, general laws of partnership and agency apply, and each is liable for the negligence of the other. Boatman v. George Hyman Constr. Co., 157 Ga. App. 120, 123 (276 SE2d 272); Bowman v. Fuller, 84 Ga. App. 421, 425-426 (1) (66 SE2d 249). “ ‘Broadly, there is a joint [venture] when two or more combine their property or labor, or both, in a joint undertaking for profit, with rights of mutual control, provided the arrangement does not establish a partnership.’ Atlanta Metallic Casket Co. v. Southeastern Wholesale Furniture Co., 82 Ga. App. 353, 358 (61 S. E. 2d, 196).” Bowman v. Fuller, 84 Ga. App. 421, 425, supra.

In support of its motion for summary judgment, Oglethorpe presented the affidavit of Stacy, its president and Chief Executive Officer, and of White, the general manager of defendant Rayle. These affidavits state that Oglethorpe neither owned, maintained, nor operated the electric distribution line at issue; that Oglethorpe never had a right to exercise control over Rayle in the operation, maintenance, or ownership of any electric distribution lines including those at issue in this case; that Oglethorpe was not a joint venturer with Rayle in the operation, maintenance or ownership of the electric distribution line at issue; and that Rayle was neither an agent, servant, nor employee of Oglethorpe.

Oglethorpe was created through a combination of the resources of 39 Georgia Electric Membership Cooperatives to provide greater efficiency in the generation or acquisition, and wholesale distribution of electric power, and is wholly owned by its 39 members of which defendant Rayle is one. Oglethorpe has no retail customers, while the Electric Membership Cooperatives, such as defendant Rayle, are retailers of electric power.

Under the evidence in the case sub judice, at least one element of a joint venture is not present. There is no combination of property or labor, or both, in a joint undertaking, such as will contribute to the establishment of a joint venture. While plaintiff directs our attention to the combining of resources which occurred in the formation of Oglethorpe, this test is not concerned with the internal structure of Oglethorpe or with the existence of Rayle’s ownership of an equity interest in Oglethorpe. The germane fact in this regard is that the electric power line at issue along with the remainder of the distribution system was owned, operated, and maintained solely by Rayle.

Decided July 16, 1990

Rehearing denied July 31, 1990 — Cert, applied for.

Winburn, Lewis & Barrow, Gene Mac Winburn, John J. Barrow, for appellant.

Murray, Temple & Binges, William A. Binges, Gregg P. Counts, for appellees.

Furthermore, Oglethorpe and Rayle are not joint venturers simply because their businesses are interdependent. Rayle relies on Oglethorpe to generate and deliver electric power to its distribution system, while Oglethorpe relies upon the Electric Membership Cooperatives, including Rayle, to provide a retail market and distribution system for its product. However, such interdependence is universally found in a wholesaler-retailer relationship and is not inconsistent with the operation of separate businesses.

Finally, we do not find Greensboro Lumber Co. v. Ga. Power Co., 643 FSupp. 1345 (ND Ga. 1986), persuasive as to the issues of the case sub judice. The conclusion in that case that, under federal antitrust law, Oglethorpe and its member Electric Membership Cooperatives constitute a “single integrated business entity” is not instructive in relation to the joint venture issue in the case sub judice. The superior court did not err in granting a summary judgment in favor of defendant Oglethorpe and against plaintiff.

Judgment affirmed.

Sognier, J., concurs. Carley, C. J., concurs in the judgment only.


author: Beasley, Judge. Pope, Judge,

text:
    A90A0415.
    SEAMAN v. THE STATE.
    (396 SE2d 525)
   Beasley, Judge.

Police responded to a newspaper ad offering to sell X-rated videotapes. After they bought two tapes, they viewed them, determined they were obscene, and arrested defendant. Execution of a search warrant for his home, from which the tapes were being sold, yielded one high-speed dubbing commercial VCR that was connected to four other VCRs, along with 128 videotapes.

Defendant pleaded guilty to two counts of distribution of obscene materials. He challenges the order of forfeiture of the five videocassette recorders used to copy pornographic videotapes, arguing that the State has no right to the VCRs because they are not inherently illegal. He also argues that he did not receive proper notice of the hearing on the motion to confiscate.

There was no authority for the state court to order confiscation to the State of defendant’s property, i.e., “all property currently in the possession of DeKalb County Police Department,” which the State in its motion described as “several VCR machines.”

Neither the solicitor in the State’s motion, nor the court in its order, cited any authority for this action. It occurred in a criminal case, twenty-one days after judgment was entered by way of the sentence. It was not a proceeding in rem, and according to the record (there is no transcript), only the two attorneys were present for hearing, on the day after the motion was made and the rule nisi signed.

The obscene materials which figured in this case became, by statute, contraband because they were declared by the factfinder to be obscene. OCGA § 16-12-83. They were not contraband per se. Warshaw v. Eastman Kodak Co., 148 Ga. App. 670; 671 (3) (252 SE2d 182) (1979). The General Assembly did not include in the contraband statute any other properties which might be seized or used as evidence in the prosecution of a charge of distributing obscene materials under OCGA §§ 16-12-80 or 16-12-81. This express provision indicates by silence that no others were intended to be swept into the net. “Expressio unius est exclusio alterius.” Black’s Law Dictionary, rev’d 4th ed. (1968).

Forfeiture of property is disfavored and the statutes permitting such are to be strictly construed and limited. Renfroe v. Colquitt, 74 Ga. 618, 619 (2a) (1885), overruled on other grounds, Busbee v. Reserve Ins. Co., 243 Ga. 371, 372 (254 SE2d 324) (1979); Brooks v. Hicks, 230 Ga. 500 (197 SE2d 711) (1973); Sale v. Leachman, 218 Ga. 834, 837 (1) (131 SE2d 185) (1963). Here we do not even have a forfeiture statute, as does exist in the case of the Georgia RICO Act, OCGA § 16-14-7, and the Georgia Controlled Substances Act, OCGA § 16-13-49. Even contraband may not be subject to confiscation. Balkcom v. Heptinstall, 152 Ga. App. 539 (263 SE2d 275) (1979). The VCRs are akin to the money rilled on in Chappell v. Stapleton, 58 Ga. App. 138 (198 SE 109) (1938), which is described in Balkcom.

Blackmon v. B.P.O.E., 232 Ga. 671 (208 SE2d 483) (1974), is not authority for this confiscation. That case involved property which was declared by the General Assembly to be contraband per se, in Ga. Code Ann. § 58-122. The reference to what the court calls “derivative contraband” is dictum and no authority is cited. Blackmon provides no foundation for the summary forfeiture of defendant’s personal property effectuated by the trial court.

In this posture, it is unnecessary to address the constitutional arguments made by appellant or the validity of the process by which the confiscation took place.

Decided July 11, 1990

Rehearing denied July 31, 1990 — Cert, applied for.

John D. McCord III, for appellant.

Ralph T. Bowden, Jr., Solicitor, R. Andrew Fernandez, Cassandra J. Cook, Cliff Howard, Assistant Solicitors, for appellee.

Judgment reversed.

Carley, C. J., Birdsong, Sognier and Cooper, JJ., concur. Deen, P. J., McMurray, P. J., Banke, P. J., and Pope, J., dissent.

Pope, Judge,

dissenting.

I must dissent. I would affirm the forfeiture.

1. “Contraband per se is subject to seizure or forfeiture. An article is deemed to be contraband per se if its possession is illegal.” W. Daniel, Ga. Crim. Trial Practice (1989), § 10-2 at 267-268. The videotapes upon which defendant’s conviction rests are contraband. OCGA §§ 16-12-80; 16-12-83. “Derivative contraband is property whose possession is legal but which has been forfeited because used in an illegal manner. A classic example is a vehicle which has been used to transport contraband liquor.” Blackmon v. B.P.O.E., 232 Ga. 671, 672 (1) (208 SE2d 483) (1974). Possession of the VCRs obviously is legal. Even using the VCRs to view obscene material in the privacy of one’s home is legal. Warshaw v. Eastman Kodak Co., 148 Ga. App. 670 (3A) (252 SE2d 182) (1979). However, use of the machines in a scheme to distribute obscene material is illegal. Thus, the machines are derivative contraband subject to forfeiture.

2. Defendant argues that the notice of hearing did not comply with due process because he had only one day’s notice of the hearing. However, defendant does not show how he was harmed. The record shows that he was present with counsel at the hearing and was heard. Nothing in the record shows that defendant objected to the notice or procedure followed for the hearing. Therefore, we have nothing to review. See Brown v. Thomas, 191 Ga. App. 679, 680 (1) (382 SE2d 656) (1989).

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


author: Pope, Judge. Deen, Presiding Judge,

text:
    A90A0461.
    SYNTHETIC INDUSTRIES et al. v. CAMP.
    (396 SE2d 518)
   Pope, Judge.

In this workers’ compensation case, the employer and insurer seek to appeal a decision of the superior court that reversed the decision of the full board and remanded the case to the board for a medical evaluation of the claimant by a named physician and a determination by the board on the requested change of physician. Claimant’s notice of appeal to the superior court was filed with the board on March 28, 1989. The case was not transmitted to the court by the full board at that time “due to more litigation.” The superior court did not enter any order until September 19, 1989. The order does not state the date on which the case was heard.

The proper procedure for transmitting a record to the superior court is set forth in OCGA § 34-9-105 (b). The board is required to transmit certified copies of all documents and papers in its files, along with any transcripts of the testimony taken and the board’s findings of fact and decision, within thirty days after the filing of the notice of appeal. “The case so appealed may then be brought by either party upon ten days’ written notice to the other before the superior court for a hearing upon such record.” Id. OCGA § 34-9-105 (b) requires affirmance of the board’s decision by operation of law if the court does not hear the case within sixty days from the date the appeal is filed. Here, almost six months elapsed before the record was transmitted to the superior court and, in a letter to the court which is a part of the appellate record, the board attributed the delay to more litigation in the case which caused the file to be “sent back and forth to the Dalton office.”

A notice of hearing for May 2 was prepared by the claimant, but it was not filed in the superior court until September 25, along with the rest of the case papers. The record contains no indication that the superior court heard the case on May 2 or at any time within the sixty-day statutory limit. See OCGA § 34-9-105 (b). The order recites that the court reviewed the file, but the case papers were not filed until September 25, six days after the order was entered.

Regardless of whose fault it was or what caused the delay, the court lost jurisdiction of the case in May, sixty days after March 28. See OCGA § 34-9-105 (b); Nelson v. Felton Pearson Co., 195 Ga. App. 92 (392 SE2d 274) (1990). The statutory scheme imposes a burden on the appellant to assure that the time limitations are met. The superior court having lost jurisdiction by operation of law, its order was a nullity and cannot serve as a basis for appeal to this court.

This case points up the inequity created by the Legislature’s enactment of the present version of OCGA § 34-9-105 (b). The problem with the statute as written is that while the requirement that the record be sent by the board to superior court is directory, as was held in Aetna Cas. &c. Co. v. Nuckolls, 69 Ga. App. 649 (1) (26 SE2d 473) (1943), the requirement that a hearing be held by the superior court within sixty days of the filing of notice of appeal is jurisdictional. If a timely hearing is not held, the decision of the board is affirmed by operation of law. The language of the statute is clear and this court is without power to avoid the ill-effect created by the statute as written. The Legislature should rewrite the statute to remove the inequity.

In the interim, practitioners would do well to hasten immediately from the filing of the notice of appeal to superior court to set a date for hearing within the next sixty days. If at the time of the scheduled hearing the record is not present, the superior court judge may continue the hearing to a date certain, as provided in § 34-9-105 (b) and then order the board to provide the record before that date. In this manner, counsel for the appellant will avoid the loss of jurisdiction over the appeal by the superior court.

However, it is clear in the present case that the appeal from the full board to the superior court was not timely heard so that by operation of law the decision of the full board was affirmed and the order of the superior court was a nullity. Therefore, the appeal is dismissed.

Appeal dismissed.

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

Deen, Presiding Judge,

dissenting.

I must respectfully dissent, as I do not believe that the court below lost jurisdiction of the case when the record was not transmitted within the statutorily required period. The statutory provision that the board is required to transmit all documents and papers on file is directory. Aetna Cas. &c. Co. v. Nuckolls, 69 Ga. App. 649 (26 SE2d 473) (1943). Where neither appellant nor his attorney is in any way connected with the delay in transmittal, so as to prevent the board from transmitting the record, the court should not make appellant or his counsel suffer on account of the delay. Id. at 652.

OCGA § 34-9-105 (b) requires affirmance of the board’s decision by operation of law if the court does not hear the case within 60 days from the date the appeal is filed. Here, almost six months elapsed before the record was transmitted to the superior court and, in a letter to the court which is a part of the appellate record, the board attributed the delay to more litigation in the case which caused the file to be “sent back and forth to the Dalton office.”

The case should therefore be remanded to determine if the delay in transmitting the record was attributable to the appellant or his counsel before considering the appeal based upon the record. See Baker v. Southern R. Co., 260 Ga. 115 (390 SE2d 576) (1990).

Decided July 5, 1990

Rehearing denied July 31, 1990 — Cert, applied for.

Saveli & Williams, Benjamin H. Terry, Jennifer H. Chapin, for appellants.

Robert A. Wharton, Jr., for appellee.


text:
    A90A0490.
    KLEMPNER et al. v. SAFEWAY INSURANCE COMPANY.
    (396 SE2d 527)
   Pope, Judge.

Members of plaintiff, a professional corporation, provided chiropractic health care to two patients injured in an automobile collision. Defendant Safeway Insurance Company was the no-fault carrier for the injured parties. Plaintiff brought suit against the two pátients and Safeway for payment for services rendered plus attorney fees, punitive damages and a penalty for bad faith refusal to pay benefits. Although Safeway denied in its answers that plaintiff notified it of the assignments of benefits, the record shows Safeway received a copy of a written agreement signed by each patient assigning his rights to insurance proceeds to plaintiff. However, benefits were paid directly to the injured parties and they, in turn, did not pay plaintiff. Service of process was never perfected against the two insureds, the cases were consolidated and plaintiff proceeded solely against Safeway. The trial court granted summary judgment to Safeway and denied plaintiff’s motion for partial summary judgment on the issue of whether the assignment of benefits entitled plaintiff to payment as well as on the issue of whether plaintiff is entitled to recover a penalty for bad faith failure to pay benefits to plaintiff. Plaintiff appeals.

1. We conclude that the trial court erred in granting summary judgment to defendant Safeway for reasons set forth in Division 1 of our opinion issued in Santiago v. Safeway Ins. Co., 196 Ga. App. 480 (— SE2d —) (1990) (physical precedent only).

2. For reasons set forth in Division 2 of the Santiago opinion, we also conclude that plaintiff is entitled to summary judgment on its claim for benefits. However, the Santiago opinion did not address the issue of whether a health care provider/assignee is entitled to recover a penalty for bad faith failure to pay benefits pursuant to OCGA § 33-34-6.

Said Code section acknowledges that no-fault payments “may be paid by the insurer directly to persons or firms supplying services or accommodations to the claimant.” It also permits “the person entitled to benefits” to bring an action for a penalty against the insurer for failure or refusal to pay benefits when due. Since the statute refers to the “claimant,” we interpret the use of the phrase “person entitled to benefits” to mean that a party other than the claimant may be entitled to benefits and may bring an action for a penalty. Consequently, we hold that plaintiff, as a health care provider/assignee of benefits, may bring an action for a bad faith penalty where, as here, the insurer had notice that the claimant’s benefits had been assigned. However, we do not agree with plaintiff that it is entitled as a matter of law to recover a penalty because whether the insurer’s failure to pay was in good faith remains an issue for the trier of fact, which may consider whether prompt payment to the insureds is evidence of the insurer’s good faith even though such payment did not discharge the insurer’s liability to the plaintiff.

Decided July 11, 1990

Rehearings denied July 31, 1990 — Cert, applied for.

Leon A. Van Gelderen, for appellants.

Crim & Bassler, Harry W. Bassler, Philip G. Pompilio, for appellee.

Hollingsworth & Associates, James D. Hollingsworth, Jason T. Schneider, amici curiae.

Judgment reversed in part and affirmed in part.

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

Deen, Presiding Judge,

concurring specially.

I must concur in the judgment only, as the case relied upon by the majority opinion, Santiago v. Safeway Ins. Co., 196 Ga. App. 480 (— SE2d —) (1990) was adopted by only a 4-1-4 vote and is without precedential value. Rule 35 (b) of the Court of Appeals.

Beasley, Judge,

concurring specially.

I concur but do not thereby intend to diminish the content or effect of the special concurrence in Santiago v. Safeway Ins. Co., 196 Ga. App. 480 (_SE2d_) (1990).