text:
    A90A1440.
    LUCAS v. THE STATE.
    (398 SE2d 417)
   Pope, Judge.

Defendant Frederick Douglas Lucas was convicted by a jury of the offenses of armed robbery, aggravated assault (two counts) and burglary. We affirm.

1. Defendant first contends that the trial court impermissibly commented on the evidence adduced at trial. The record shows that the complained of remarks occurred in response to a question posed by one of the jurors concerning whether pauses in a tape recording of the preliminary hearing, which was introduced by defendant at trial, indicated that the tape had been edited. The record shows, however, that the defendant did not indicate he found the court’s response objectionable, nor did he move for a mistrial on the basis of the court’s comments. “Where the trial judge is alleged to have made a prejudicial remark . . . during the course of the trial in violation of [OCGA § 17-8-57], an objection or motion for mistrial must be made in order to preserve the issue for appeal. [Cits.] Although the [defendant] made no such objection or motion in this case, we have nevertheless examined the judge’s comments and have determined that they were not prejudicial.” Thomas v. State, 158 Ga. App. 97, 98 (2) (279 SE2d 335) (1981). See also Ford v. State, 255 Ga. 81 (2) (335 SE2d 567) (1985); McCounly v. State, 191 Ga. App. 266, 268 (3) (381 SE2d 552) (1989); Hightower v. State, 189 Ga. App. 553 (1) (376 SE2d 717) (1988).

2. Defendant next contends that thé armed robbery offense (count one of the indictment) and aggravated assault offense (count two of the indictment) merged as a matter of fact and thus the trial court erred in sentencing him on both offenses. We disagree. Count one of the indictment charged that defendant, “with [the] intent to commit theft, did take from the person and immediate presence of Forrest Plott, . . . money, the property of Forrest Plott, and of the value of $10.00, by use of a handgun, the same being an offensive weapon.” Count two of the indictment charged that defendant “did make an assault upon the person of Forrest Plott, by committing an act which placed said person in reasonable apprehension of immediately receiving a violent injury, with the intent to rob said person.” At trial Forrest Plott testified he was in the process of getting out of bed to try and calm his barking dog when defendant entered his bedroom and shoved him back onto his bed. Defendant threatened him with a gun and demanded his money. Plott directed defendant to the money in his pants pocket. Defendant removed $10 from Plott’s wallet and threw the wallet on the bed. The defendant again demanded money from Plott and again threatened to kill him. Plott told the defendant he had no more money; the defendant “wrestled” with Plott, “jerked” him around and pushed him back onto the bed before finally leaving his bedroom.

Decided October 22, 1990.

John D. McCord III, for appellant.

Robert E. Wilson, District Attorney, Robert M. Coker, Fran Shoenthal, Assistant District Attorneys, for appellee.

Under these facts, we find that defendant’s convictions and sentences for both offenses should stand. The armed robbery was completed when, after placing his gun against Plott’s throat and threatening to kill him, the defendant took Plott’s money. However, following the completion of this offense the defendant again threatened Plott, and again demanded his money, as charged in count two of the indictment. This constituted a separate offense and the trial court did not err in sentencing defendant accordingly. See Johnson v. State, 190 Ga. App. 172 (378 SE2d 700) (1989); Lambert v. State, 157 Ga. App. 275 (277 SE2d 66) (1981). Consequently, this enumeration is without merit.

Judgment affirmed.

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

       Defendant’s original appeal was docketed in this court as Case No. A89A0432. However, on February 10, 1989, this court entered an order granting defendant’s (former) appellate counsel’s request to withdraw said appeal. Following a hearing, the trial court determined that said appeal may have been withdrawn without the knowing and intelligent acquiescence of defendant, and appointed him new appellate counsel to file this out-of-time appeal.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A90A1653.
    SLEETH v. THE STATE.
    (398 SE2d 298)
   Banke, Presiding Judge.

The appellant was found guilty of two counts of burglary, two counts of arson in the first degree, and one count of possession of marijuana. The two burglary counts and the two arson counts were, however, merged with each other for sentencing. The appellant brings this appeal from the denial of his motion for new trial. Held:

1. The appellant contends that the trial judge erroneously placed a burden on him to come forward with evidence of his innocence by giving the following instruction to the jury at the outset of the trial: “And I want to ask you to in a sense of fairness to all concerned, both the state and the defendant, that you do keep an open mind until all the evidence is in. That means let the state produce its case then let the defendant produce whatever the testimony will be on behalf of the defendant or whatever the defendant’s case may be.”

Although the appellant did not take the stand himself, he did call two witnesses in an effort to establish an alibi defense. Therefore, to the extent that the above language could have been misinterpreted as placing a burden on him to produce testimony on his own behalf, it . must be considered harmless. To the extent the appellant is complaining that the instruction might have been interpreted by the jury as permitting a negative inference to be drawn from his failure to testify, we conclude that, in the context in which it was given, there is no reasonable possibility that it could have been so construed, particularly since the court gave a clarifying instruction almost immediately afterwards, at the suggestion of the state’s attorney, to the effect that the appellant was presumed innocent and that no inference whatsoever was to be drawn from any failure on his part to testify. Consequently, we find this enumeration of error to be without merit.

2. The appellant contends that the state was improperly permitted to elicit certain testimony which had the effect of placing his character in issue. The appellant was accused of breaking into and setting fire to the residence of a former co-worker, who had at one time been his girl friend but who had attempted to break off the relationship several weeks earlier. The victim testified that the appellant had continued to call her and to come by her home against her wishes after she told him she did not wish to continue seeing him, and the appellant contends that during the course of this testimony regarding her difficulties in attempting to end their relationship she made the following disclosures which placed his character in issue: (1) That she had caused him to be arrested for attempting to break into her home; (2) that he had become upset with her at work and had started cursing and throwing pallets after she said something to him about some scratch marks she had found on the side of her car; (3) that he had been fired following that incident, and (4) that her children were afraid of him.

We are at a loss to understand how any but the first of these disclosures could be viewed as having placed the appellant’s character in issue. However, whether they did or not, the testimony was clearly relevant and admissible for the purpose of establishing the nature of the victim’s relationship with the appellant during the period immediately preceding the fire. “[T]here are a number of instances in which the state may properly offer admissible evidence which is incidentally prejudicial to the defendant, but which falls short of placing his character in issue within the meaning of OCGA § 24-9-20. In this case the . . . testimony of prior difficulties was admissible as evidence of the relationship between the defendant and the victim. [Cit.] While this evidence may have reflected negatively on the defendant, it did not place his character in evidence within the meaning of OCGA § 24-9-20.” Rotino v. State, 259 Ga. 295 (2), 295-6 (380 SE2d 261) (1989).

The appellant similarly complains that certain statements made by another witness placed his character in issue. However, the testimony or questioning at issue similarly concerned matters which were directly relevant to the charges for which he was on trial. See Rainwater v. State, 256 Ga. 271 (1) (347 SE2d 586) (1986); Cooper v. State, 256 Ga. 234 (1) (347 SE2d 553) (1986); Causey v. State, 154 Ga. App. 76 (3) (267 SE2d 475) (1980). Consequently, this enumeration of error is without merit.

3. The appellant contends that the trial court erred in excluding evidence that a prior residence occupied by the victim had burned down some six years earlier. However, the appellant’s counsel conceded that he could not present any evidence that the victim (or anyone else) had intentionally started that fire, and we must agree with the trial court that the mere fact of its occurrence had no bearing under the circumstances on the issue of the appellant’s guilt or innocence of the charges for which he was on trial. “Questions of relevancy are generally matters within the court’s discretion, [cit.] and there was no error in the exclusion of this evidence not relevant to any issue at trial.” Harwood v. State, 195 Ga. App. 465, 467 (2) (394 SE2d 109) (1990). See also Burton v. State, 191 Ga. App. 822 (2) (383 SE2d 187) (1989); Masters v. State, 186 Ga. App. 795 (4) (368 SE2d 557) (1988).

4. The appellant contends that the trial court erroneously “left the jury with the impression that it must find him guilty on all counts or not guilty on all counts.” However, an examination of the court’s charge belies this contention. After pointing out to the jury that each count of the indictment was on a separate sheet of paper, the judge directed that the verdict be returned in the following manner: “Whoever the foreperson of the jury is the court would instruct you that when you make your verdict as to each count in the indictment I want you to write on the face of the paper, on the indictment itself, we, the jury, find the defendant. . . either guilty or not guilty on the five counts. . . . That way the court will know what your decision is on each individual separate count and there cannot be any confusion about it in that fashion.” (Emphasis supplied.) Accordingly, this enumeration of error is also without merit.

Decided October 22, 1990.

Barksdale, Barksdale & Irwin, David B. Irwin, Ronald C. Conner, for appellant.

Robert F. Mumford, District Attorney, Alan S. Clarke, Assistant District Attorney, for appellee.

5. Subsequent to the filing of the notice of appeal in this case and transmittal of the record to this court, the appointed counsel who had represented the appellant during the previous post-trial proceedings was allowed to withdraw from the case, and another counsel was appointed to file a brief and enumeration of errors on the appellant’s behalf. The latter counsel has asserted, for the first time, that the appellant did not receive effective assistance of counsel in the trial court. “Since the claim was only raised on appeal, there was no opportunity for a hearing before the trial court; it is not unreasonable that the case be remanded for a hearing at this point.” Johnson v. State, 259 Ga. 428, 430 (3) (383 SE2d 115) (1989). See also Weems v. State, 196 Ga. App. 429 (395 SE2d 863) (1990). The case is accordingly remanded to the trial court for an evidentiary hearing on the ineffectiveness of counsel claim, following which, in the event the trial court rejects that claim, the appellant shall be entitled to file a new appeal directed to that ruling only.

Judgment affirmed and case remanded with direction.

Birdsong and Cooper, JJ., concur.


text:
    A90A1767.
    GANT v. THE STATE.
    (398 SE2d 301)
   Banke, Presiding Judge.

The appellant was convicted of three counts of selling cocaine in violation of the Georgia Controlled Substances Act based on testimony that, on three separate occasions, he had sold cocaine to an undercover agent from his home. He brings this appeal from the denial of his motion for new trial. Held:

1. The evidence, construed in the light most favorable to the verdict, was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of each of the three offenses. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The appellant contends that he received ineffective assistance of counsel due to his trial counsel’s failure to subpoena a witness who could have offered testimony in support of his asserted alibi defense. The three sales which the appellant was accused of making occurred on April 27, May 4, and June 2, 1989, respectively. The appellant testified that he normally would have been at work rather than at home at the time these sales were alleged to have occurred; however, he acknowledged that he “could have” been at home. In support of his ineffectiveness of counsel claim, he submitted an affidavit from his next-door neighbor, who averred that she was “familiar with the schedule that he works and the hours that he normally keeps” and that it was “highly unlikely” he would have been at home at the times in question.

The appellant’s trial counsel testified at the hearing on the motion for new trial that he was not aware of the existence of any witness who could have testified that the appellant was not at home on the dates alleged in the indictment, and he further testified that he felt it was “somewhat beneficial” to have the final argument in a case. In view of the fact that neither the appellant’s own testimony nor that of his purported alibi witness was such as “reasonably to exclude the possibility of [his] presence” at the scene at the time the offenses were committed, as required by OCGA § 16-3-40 to establish an alibi defense, it is by no means apparent that it would have been more beneficial to him to have presented this witness’ testimony than to have had the concluding argument in the case. Accordingly, the trial court did not abuse its discretion in refusing to grant a new trial based on the appellant’s claim of ineffective assistance of counsel. See generally Austin v. Carter, 248 Ga. 775, 779 (285 SE2d 542) (1982).

3. The appellant contends that the trial court erred in refusing to allow him to cross-examine one of the two undercover agents to whom the sales had been made “as to his relationship with a confidential informant” who had accompanied him to the appellant’s residence. While the appellant concedes that he was not entitled to know the identity of the informant, see generally Little v. State, 165 Ga. App. 389, 392 (4) (300 SE2d 540) (1983), he argues that he “had every right to have the jury know whether or not the confidential informant was truly a concerned citizen assisting law enforcement agents in Georgia, or was in fact no more than a stool pigeon or a snitch seeking to use this appellant’s freedom to buy his own.” Inasmuch as such information would have had no bearing whatever on the appellant’s guilt or innocence of the charges for which he was on trial, we find this enumeration of error to be without merit.

Decided October 22, 1990.

Ray C. Smith, for appellant.

Dupont K. Cheney, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A1838.
    THE STATE v. JONES.
    (398 SE2d 865)
    Decided October 22, 1990.

      Joseph H. Briley, District Attorney, James L. Cline, Jr., Assistant District Attorney, for appellant.

      H. Samuel Atkins, Jr., for appellee.
   Banke, Presiding Judge.

The state brings this appeal from an order granting the defendant’s motion for a directed verdict of acquittal in a prosecution for selling cocaine. “The government cannot appeal such a directed verdict of acquittal, even if it is erroneously granted.” State v. Williams, 246 Ga. 788, 789 (272 SE2d 725) (1980). The appeal is therefore dismissed.

Appeal dismissed.

Birdsong and Cooper, JJ., concur.


text:
    A90A1977.
    THE STATE v. BARBER.
    (398 SE2d 419)
   Banke, Presiding Judge.

The state appeals an order suppressing the confession of a defendant charged with child molestation.

The evidence introduced at the Jackson v. Denno hearing revealed that the appellant, a 21-year-old male of very limited intelligence, complied with a request to come to the police station for investigatory questioning, executed a waiver of his Miranda rights upon his arrival, and then attempted to execute a handwritten confession. He was, however, unable to write, and the officers therefore activated a tape recorder and obtained an oral confession instead. This interrogation was subsequently terminated by the officers when the appellant asked, ‘T can’t get no lawyer?”

Decided October 22, 1990.

Robert E. Keller, District Attorney, Daniel J. Cahill, Jr., Assistant Attorney, for appellant.

Lillian L. Neal, for appellee.

The appellant testified at the hearing that he did not understand the Miranda warnings and was not aware that he could have a lawyer present. Asked whether the officers had promised him that the state “would go easy on you,” he replied: “Yeah. They told me if I tell the truth and all that I might get off light and everything.” The state offered no evidence to clarify or refute this testimony. At the conclusion of the hearing, the trial court determined that the confession had been made “under expectation of a promise or reward” and consequently was not admissible. The trial court also expressed concern that, prior to activating the tape, the officers had improperly suggested to the appellant the events to which they wanted him to confess. Held:

“Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal.” Gates v. State, 244 Ga. 587, 590-91 (261 SE2d 349) (1979). “To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” OCGA § 24-3-50. “ ‘[A] hope of lighter punishment... is usually the “hope of benefit” to which [OCGA § 24-3-50] refers. . . .’ [Cit.]” Tyler v. State, 247 Ga. 119, 122 (274 SE2d 549) (1981). Applying these standards, we find no basis for reversal of the trial court’s decision to exclude the confession at issue in the present case.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


author: Carley, Chief Judge.

text:
    A90A1234.
    JORDAN, JONES & GOULDING, INC. v. WILSON.
    (398 SE2d 385)
   Carley, Chief Judge.

The facts, insofar as they are relevant to this appeal, are as follows: Appellee-plaintiff was injured while inspecting machinery in a plant building. He filed suit against appellant-defendant, a registered and licensed engineering firm, and alleged that appellant had been negligent in its design and construction of the plant building and in its installation of the machinery therein. Appellee did not, however, file an expert’s affidavit along with his complaint. This lack of an expert’s affidavit was raised as a defense in appellant’s answer and appellant subsequently filed a motion to dismiss on the ground that appellee had failed to comply with the pleading requirements of OCGA § 9-11-9.1. The trial court denied appellant’s motion to dismiss, holding that a negligence claim which is being asserted against a professional by a non-client is not a malpractice action within the ambit of OCGA § 9-11-9.1. The trial court did, however, certify its order for immediate review and appellant’s application for an interlocutory appeal was granted.

1. OCGA § 9-11-9.1 provides, in pertinent part, that “[i]n any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” (Emphasis supplied.) This statute is not limited to medical malpractice claims, but is applicable, even retroactively, to suits against persons and corporations engaged in many professions, including that of engineering. Housing Auth. of Savannah v. Greene, 259 Ga. 435 (1) (383 SE2d 867) (1989), aff’g Housing Auth. of Savannah v. Gilpin & Bazemore/Architects &c., 191 Ga. App. 400 (381 SE2d 550) (1989); Southern Engineering Co. v. Central Ga. Elec. &c. Corp., 193 Ga. App. 878 (1) (389 SE2d 380) (1989); Precision Planning v. Wall, 193 Ga. App. 331 (387 SE2d 610) (1989).

The statute does not define an “action for damages alleging professional malpractice. ...” However, it is clearly not the defendant’s professional status which determines whether a suit in negligence is a malpractice action within the ambit of OCGA § 9-11-9.1. For example, a suit to recover for injuries sustained in a vehicular collision is not considered to be a malpractice action merely because the allegedly negligent defendant-driver is otherwise employed as a professional. However, contrary to the trial court’s holding in the instant case, it is likewise clearly not the plaintiff’s status as a non-client which determines whether a suit in negligence is not a malpractice action within the ambit of OCGA § 9-11-9.1. For example, a suit for loss of consortium arising from professional services afforded to one’s spouse is not considered to be a simple negligence action merely because the plaintiff has no privity with the allegedly negligent defendant-professional.

The determinative factor as to whether a suit in negligence is or is not a malpractice action within the ambit of OCGA § 9-11-9.1 is the existence or absence of allegations that the defendant-professional has rendered negligent professional services. In the case wherein such allegations are made, resolution of the issue of the defendant’s compliance with or deviation from the applicable standard of professional conduct calls for “highly specialized expert knowledge with respect to which a layman can have no knowledge at all, and the court and jury must be dependent on expert evidence.” Pilgrim v. Landham, 63 Ga. App. 451, 454 (11 SE2d 420) (1940). Accordingly, any plaintiff, regardless of privity, who brings suit against a professional and seeks to recover for the alleged negligent performance of professional services is required by OCGA § 9-11-9.1 to file an expert’s affidavit setting forth at least one specific negligent act or omission and the factual basis for such a claim. A lack of privity may ultimately defeat a plaintiff’s professional malpractice claim. A lack of privity does not, however, dispense with a plaintiff’s compliance with the initial pleading requirement of OCGA § 9-11-9.1 when he sues a professional and alleges a breach of the applicable standard of professional conduct.

Decided September 27, 1990

Rehearing denied October 23, 1990

Pursley, Howell, Lowery & Meeks, John R. Lowery, for appellant.

Burge & Wettermark, Michael J. Warshauer, for appellee.

McLain & Merritt, Robert B. Hill, amicus curiae.

2. Appellant is a professional engineering firm and appellee’s complaint alleges that appellant was negligent in the performance of its professional engineering services. Accordingly, appellee has attempted to allege a professional malpractice claim against appellant. However, appellee did not file the expert’s affidavit that is mandated by OCGA § 9-11-9.1. Although appellee’s complaint was filed before the Supreme Court’s decision in Housing Auth. of Savannah v. Greene, supra, it was filed after this court had clearly held that OCGA § 9-11-9.1 “applies to any action for professional malpractice by negligent act or omission, sounding in tort or by breach of contract for failure to perform professional services in accordance with the professional obligation of care.” (Emphasis supplied.) Barr v. Johnson, 189 Ga. App. 136, 137 (375 SE2d 51) (1988). See also Padgett v. Crawford, 189 Ga. App. 568 (376 SE2d 724) (1988) (which was likewise decided prior to the filing of appellee’s complaint). Accordingly, the so-called “manifestly unfair” rationale of Kneip v. Southern Engineering Co., 260 Ga. 409 (395 SE2d 809) (1990) is inapplicable in the instant case. It follows that the trial court erred in denying appellant’s motion to dismiss appellee’s malpractice claim.

Judgment reversed.

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


author: Deen, Presiding Judge.

text:
    A90A1665.
    BENSCHOTER v. SHAPIRO.
    (398 SE2d 399)
   Deen, Presiding Judge.

Appellant Benschoter, an employee of Delta Air Lines, was injured May 5, 1987, while driving a forklift off a trailer operated by Any Time Service (“Any Time”), an unincorporated division of Tass, Inc. According to the record, Any Time and Tass, Inc., had the same officers and directors (Theodore A. Shapiro and his wife), and Mr. Shapiro was president and sole shareholder.

Benschoter filed an action February 9, 1988, naming as defendant Theodore A. Shapiro d/b/a Any Time Service. In his answer, filed March 23, 1988, Shapiro asserted as a defense that he was an improper party defendant. According to Shapiro’s counsel, he informed Benschoter’s counsel, shortly after the answer was filed, that the basis for the improper-party defense was that it was Tass, a corporate entity, which actually owned the trailer and, therefore, was the proper party defendant. Appellant contends that this alleged communication never took place and that he became aware that Tass was the proper party only when Shapiro’s deposition was taken in December of 1989. Appellant further contends that he succeeded in getting Shapiro’s deposition only after several attempts, an allegation denied by Shapiro.

In February 1990 appellant’s motion to add a party defendant (Tass, Inc.) was denied, and we granted his application for interlocutory appeal. He enumerates as error the denial of this motion. Held:

It would appear from a review of the entire record, including the depositions, that plaintiff/appellant did not exercise due diligence in seeking to amend his pleadings to correct a misnomer. Whether or not plaintiff’s counsel was told by opposing counsel (as the latter asserts and the former denies) that Any Time was a division of Tass, Inc., and that Tass was the actual owner of the trailer, it appears from the record that defendant/appellee’s answer should have put appellant on notice that there was a question regarding the proper party or parties defendant. Appellant further asserts, moreover, that his preparation for trial was delayed by difficulty in scheduling Shapiro’s deposition — an allegation denied by appellee. The record contains no notice to take Shapiro’s deposition. The deposition itself bears the date December 6, 1989, and the trial court’s order of July 30, 1990, states that it was filed with that court February 2, 1990. Appellant further alleges that the trial court’s failure to open Shapiro’s deposition, which was transmitted to the trial court in February of 1990, until after appellant’s motion to add a party was denied, was reversible error.

In his March 7, 1990, order denying appellant’s motion to add Tass as a party, the trial court recites that he has considered “the pleadings, briefs of counsel, and other evidence submitted, and . . . the entire record on this matter.” In his order of July 30, 1990, requiring Shapiro’s deposition to be sent to this court, however, the trial court states that it had been transmitted to the trial court and was not opened. Absent clear indications to the contrary, there is a strong presumption that proceedings in the trial court have been conducted in an orderly and proper manner. General Motors Corp. v. Walker, 244 Ga. 191 (259 SE2d 449) (1979); Porter Coatings v. Stein Steel &c. Co., 157 Ga. App. 260 (277 SE2d 272) (1981).

Decided October 10, 1990

Rehearing denied October 23, 1990

Charles E. Moore, Jr., Karolyn P. Mercer, for appellant.

Goldner, Sommers & Scrudder, Glen S. Bass, Linda E. Jacobsen, for appellee.

Acknowledging this presumption, we are led to conclude that the trial court considered that there was sufficient evidence without the Shapiro deposition to enable him to make a correct ruling on the issues before him, including that of the running of the statute of limitation and the attendant questions of due diligence and laches. The determination of whether a party should be added is left to the discretion of the trial court, and that determination will be disturbed on appeal only if that discretion has been abused. Cartin v. Boles, 155 Ga. App. 248 (270 SE2d 799) (1980); see OCGA §§ 9-11-15 (a); 9-11-21. Finding no abuse, we affirm the ruling below.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A1804.
    WORLEY v. WHIDDON.
    (398 SE2d 401)
   Deen, Presiding Judge.

Alice Worley filed a petition to modify visitation rights awarded to her former husband, William Whiddon, under their divorce decree, which was entered on February 1, 1989. She alleged that there had been changes in circumstances materially affecting the interest and welfare of their minor child, in that the child had reached the age of fourteen and had elected not to visit with his father. Attached to the petition was the child’s affidavit, which stated that he elected not to visit with his father because “my visits with him are unpleasant.” The trial court issued an order denying modification of visitation based upon its interpretation of OCGA § 19-9-3 (a) and Prater v. Wheeler, 253 Ga. 649 (322 SE2d 892) (1984), and ordered the child to participate in family counseling at the father’s expense. The mother’s application for a discretionary appeal was granted by this court. Held:

In Prater v. Wheeler, supra, the court interpreted OCGA §§ 19-9-1 (a) and 19-9-3 (a), as they then existed in the Code, to hold that a child over the age of fourteen years had the right to elect not to visit with the noncustodial parent, but such an election could only be made by court order. In 1986, these Code sections were amended to add: “Nothing in this Code section shall be interpreted to deny the noncustodial parent the right to reasonable visitation determined by the court as in other cases.” The trial court interpreted this language as overruling Prater v. Wheeler, and found that it must find some other statutory authority if visitation was to be denied to the noncustodial parent. The court turned to OCGA § 19-9-3 (b), which provides for periodic review and modification of the portion of the custody decree affecting visitation rights and found that the court was not bound by the two-year modification restriction where there is a “showing of a change in any material conditions and circumstances of either party or the minor.” The court further found under OCGA § 19-9-3 (a) a duty “to exercise its discretion to look to and determine solely what is the best interest of the child or children and what will best promote their welfare and happiness. . . .” The court held that no exceptional circumstances were presented to the court. There was no assertion that the father was unfit or abusive, or that the child has suffered any harm from visiting him. The court found that it was not in the child’s best interest nor would his welfare and happiness be promoted by discontinuing his father’s visitation rights.

The sole issue of law in this case is whether the General Assembly intended to limit the election rights of a 14-year-old child, found in OCGA § 19-9-1 (a), which permits the child to choose his or her custodial parent, to situations involving only child custody, or whether it also includes visitation rights. We note that approximately one year after the Prater decision, the General Assembly amended the Code sections pertaining to election by the child to add a final sentence: “Nothing in this Code Section shall be interpreted to deny the noncustodial parent the right to reasonable visitation determined by the court as in other cases.” Appellant argues that the legislature intended to codify the holding in Prater, and this case and others following it are the “other cases” referred to in the amendment.

An amended statute “should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending [its] operation.” Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692, 693 (353 SE2d 186) (1987); Earth Mgmt. v. Heard County, 248 Ga. 442, 444 (283 SE2d 455) (1981). Ga. L. 1986, p. 1000, which amended OCGA §§ 19-9-1 and 19-9-3, is captioned “CHILD CUSTODY — VISITATION RIGHTS OF THE NONCUSTODIAL PARENT.” The intention of the General Assembly in passing a law may be derived from the caption of the Act as well as from its body. Sovereign Camp Woodmen v. Beard, 26 Ga. App. 130 (105 SE 629) (1921). In amending the Code sections in question, the legislature was addressing the visitation rights of noncustodial parents rather than child custody in general. As Prater had interpreted “certain provisions of law” to permit 14-year-old children the right to elect not to visit the noncustodial parent, the legislature would have no reason to amend the Code sections in question. If, however, the legislature determined that child visitation should be determined in the same manner as custody, it had to amend these Code sections. In interpreting statutes passed by the General Assembly, the courts must keep “in view at all times, the old law, the evil, and the remedy.” OCGA § 1-3-1. We therefore find that the General Assembly was concerned that the Code sections in question had been interpreted to deny the noncustodial parent visitation when a child of 14 years or older sought to terminate such visitation by court order. The General Assembly was obviously concerned that important parental rights could be terminated upon the whim of a teenager and that such a child would be deprived of the love and guidance that might be needed. The “other cases” referred to in the amendment therefore refer to other instances, such as child custody cases, where the court is required to exercise its discretion.

Decided October 11, 1990

Rehearing denied October 23, 1990

Davis, Gregory & Christy, Hardy Gregory, Jr., Gary C. Christy, for appellant.

Gary C. McCorvey, for appellee.

We therefore find that the trial court did not err in its interpretation of the amended Code sections and in exercising its discretion in denying the petition which sought to deny the father visitation rights to his child.

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: Sognier, Judge.

text:
    A90A0791.
    RANALLI v. THE STATE.
    (398 SE2d 420)
   Sognier, Judge.

Brian Richard Ranalli was convicted of burglary, kidnapping with bodily injury, rape, two counts of aggravated child molestation, and cruelty to children, and sentenced to two life terms plus 80 years. He appeals.

1. Appellant first raises the general grounds, contending that the State presented only circumstantial evidence against him and did not exclude every other reasonable hypothesis. Construed to support the verdict, the evidence adduced at trial established that the victim, a six year old girl, was abducted from her bedroom at approximately 3:00 a.m. on October 19, 1988 by a man who entered her Cobb County home through an unlocked garage door. Saying that he was taking her to play hide and seek, the perpetrator carried the victim outside the home to a spot underneath a tree in an adjacent yard, where he ordered her to remove her underwear, forced his penis into her mouth, kissed her breasts and vagina, and twice inserted his penis into her vagina. When she screamed in pain, he stuffed her underwear into her mouth. He also slapped her and told her that he had been paid by her father to do these acts. The victim testified that when the attacker released her, she saw him run toward a nearby house. She ran home and woke her parents, who, upon finding their child dirty, bruised, and bleeding profusely from her vagina, called police and an ambulance. Testimony from the victim’s parents and the treating physicians established that the victim’s perineal wall between her vagina and rectum had been completely torn, that she underwent surgery to repair the damage, that she continues to have vaginal discharges and pain upon urination, and that she contracted venereal diseases that will recur for the rest of her life.

Both after the attack and at trial, the victim, who witnesses testified was alert and rational after the attack, was able to describe her assailant as a white man slightly under six feet in height with brown hair and a mustache. She stated he was wearing a dark shirt with white cursive writing, blue jeans, shoes with laces, and light colored socks with horizontal stripes at the top, and that she found in his pocket and tossed away a white and gold cigarette package that had a picture of a camel on the front. During a search of the area the next day, investigators found a pack of Camel Lite cigarettes, which matched the victim’s description, under the tree where the victim had been taken.

It was established that appellant and his girl friend, Connie Young, shared a house with Donna Alexander one block from the victim’s home. Young testified that when appellant left for his job with Scapes, a commercial landscaping company, on the morning of October 18, he was dressed in a dark blue sweatshirt with “Scapes” written on the front in white cursive writing, blue jeans, tennis shoes, and white tube socks with colored stripes on the top. She met him at a bar after work, but left after several hours because they argued about their relationship. He telephoned her from another bar at 11:00 p.m. to inform her he was coming home, but she testified he did not return until 2:00 a.m. They again argued, and appellant went to bed but got up a few minutes later and dressed in the same clothes he had been wearing earlier. Appellant then left the house around 2:15 or 2:30, leaving his wallet behind. Young recalled that he returned at about 3:30 or 3:45 a.m., and that when he got into bed with her his body was cold. In response to her query, appellant stated that he had been out jogging. Young testified that appellant did not go to work the next day, but did report to work on October 20. Testimony from appellant’s coworkers established that when he arrived on the 20th, appellant got an advance on his paycheck, borrowed a car, and disappeared. Additional testimony was adduced that appellant was slightly over six feet tall, and that at the time of the attack he had a mustache.

Donna Alexander testified that after hearing news reports of the attack on the victim, she became suspicious because she was aware appellant had been out of the house during the time the incident occurred. When she discovered blood and caked dirt on the clothes appellant had been wearing that night, she alerted Young. In response to an anonymous phone tip from a caller Alexander identified as her mother, Cobb County detectives canvassed the houses on appellant’s street on October 20. When they visited appellant’s home, Alexander and Young gave them the clothes appellant had been wearing on October 18. A subsequent search of appellant’s belongings pursuant to a search warrant yielded several adult magazines and an open pack of Camel Lite cigarettes, which Young testified was the brand appellant smoked. Appellant was arrested at his brother’s home in Detroit five days later.

At trial, FBI Agent William Sievers, who arrested and interviewed appellant, testified that appellant admitted leaving his house around 2:30 a.m. on October 19, and said he had gone for a walk to the nearby home of an acquaintance. Appellant informed Sievers that on several occasions in the past he had exposed himself to young girls, that he had a “bad person” inside him who had recently reappeared, and that he did not know whether he had perpetrated the attack on the victim. Evidence of appellant’s prior guilty plea to two charges of indecent exposure to young girls was admitted into evidence, as was evidence that appellant had told the arresting officer at the time that the “bad part” of him was that “young girls turned him on.”

A forensic serologist testified that blood found on appellant’s clothing was consistent with that of the victim, and a fluid sample taken from the tissue surrounding the victim’s vagina tested positive for sperm. A forensic microanalyst testified that fibers found on appellant’s clothing were consistent with those taken from the victim’s clothing, dirt taken from the clothing of both was consistent with a soil sample taken from underneath the tree where the attack occurred, and a pubic hair found on the victim could have come from appellant.

Since the victim did not identify appellant at trial, we must consider whether the circumstantial evidence supported the jury’s verdict. “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. . . . This does not mean that the state must exclude every possible hypothesis showing innocence, but any reasonable hypothesis showing innocence. (T)he question of whether every other reasonable hypothesis has been excluded is generally a question for the jury.” (Citations and punctuation omitted.) Bird v. State, 178 Ga. App. 687, 688 (344 SE2d 468) (1986). Contrary to appellant’s assertions, the State was not required “to prove that it was impossible for the offense to have been committed by [any of the other persons the police once considered suspects], or that it might not, by bare possibility, have been done by another. [Cit.]” Schmalz v. State, 177 Ga. App. 634, 635-636 (341 SE2d 11) (1986). Here, as in Schmalz, “the evidence points inexorably toward [appellant] and him only.” Id. at 636. The jury considered and weighed the evidence, as is their duty, and their conclusion was supported by evidence sufficient to convince a rational trier of fact of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In two enumerations appellant maintains his convictions for rape and aggravated child molestation should be vacated because they merged with other charges as a matter of fact.

(a) We disagree with appellant’s contention that the rape count merged into the conviction for kidnapping with bodily injury. The indictment alleged the bodily injury occurring during the kidnapping was “a laceration to the vaginal and perineal area,” not the rape. “The offense of rape occurs when there is ‘any penetration of the female sex organ by the male sex organ,’ forcibly and against the female’s will [cit.]. . . . [The law does not require] that the victim’s testimony must be corroborated or supported by additional evidence to support a finding of rape. [Cit.]” Neal v. State, 152 Ga. App. 395, 396-397 (1) (263 SE2d 185) (1979). Accordingly, proof of vaginal injury or trauma is not required. Id. at 397 (1). The rape count was established by the victim’s testimony and proof of the presence of seminal fluid, Searcy v. State, 158 Ga. App. 328, 329 (280 SE2d 161) (1981), and thus the rape charge was a separate crime from that evidenced by the victim’s vaginal lacerations.

(b) With regard to appellant’s fifth enumeration, we note that the question is not whether the rape and aggravated child molestation counts merged into the charge of cruelty to children as appellant contends, but whether the lesser offense of cruelty to children merged into the greater offenses. See OCGA § 16-1-6; see also Love v. State, 190 Ga. App. 264, 265 (3) (378 SE2d 893) (1989). The two acts of oral sodomy were alleged in the indictment as the basis for the aggravated child molestation counts, see OCGA § 16-6-4 (c), and the indictment also charged appellant with committing the offense of cruelty to children by causing “cruel and excessive physical and mental pain by raping and sodomizing” the victim. See OCGA § 16-5-70 (b). The evidence established that during the acts of rape and sodomy, the victim was threatened and terrorized, that she screamed in pain, and that she continues to experience pain and discomfort and will suffer from the venereal diseases she contracted from appellant forever. These facts were not needed to prove the elements of rape and aggravated child molestation, and accordingly there was no merger. See Love, supra.

3. Appellant next contends the prosecutor’s statement during closing argument that “[t]here isn’t any alibi where [appellant] was” constituted an impermissible comment on his failure to testify and was unduly prejudicial. We find no merit in these enumerations. We do not consider appellant’s contradictory, self-serving statements to Young and Agent Sievers regarding his whereabouts to constitute an alibi, and having reviewed the quoted statement in context, we disagree with his characterization of the argument as having been a comment on his failure to take the witness stand.

4. Appellant also enumerates as error the court’s refusal to grant his motion for mistrial made on the ground that a statement made by Agent Sievers was unresponsive and improperly placed his character into evidence. The record reveals that in response to the prosecutor’s question whether the agent had held out any hope of benefit to appellant in exchange for his statement, Sievers replied that “I advised him at that point, that there was a warrant on him out of Florida for probation violation.” The trial judge denied appellant’s ensuing mistrial motion, and no curative instructions were requested or given.

We agree with appellant that this statement was improper, and acknowledge that our courts have taken a stern view of such conduct by law enforcement officers. See Boyd v. State, 146 Ga. App. 359-360 (2) (246 SE2d 396) (1978). Stating that Boyd did not establish a per se rule that such statements are inherently prejudicial and compel reversal, the Supreme Court has held that “the decision of whether such statements are so prejudicial as to warrant a mistrial [is left] to the discretion of the trial court. [Cits.]” Sabel v. State, 250 Ga. 640, 644 (5) (300 SE2d 663) (1983) (overruled in part on other grounds, Massey v. Meadows, 253 Ga. 389, 390 (321 SE2d 703) (1984)). On appeal, our inquiry must focus on whether the trial court abused that discretion, which includes consideration of the nature of the statement, the other evidence introduced during the trial, and the action taken by the court and counsel concerning the impropriety. Id.

Here, the prejudicial impact of Sievers’ statement was lessened by properly admitted evidence of appellant’s prior guilty plea on charges of indecent exposure to young girls and by the admission of a statement by appellant to Sievers that he considered talking to Cobb County authorities about the victim’s assault but did not do so because he feared the outstanding Florida warrant for his probation violation would be discovered. See Lewis v. State, 179 Ga. App. 118, 119 (2) (345 SE2d 663) (1986). In addition, the trial court gave appellant an opportunity to request curative instructions, but he did not do so. See Wright v. State, 253 Ga. 1, 4 (3) (316 SE2d 445) (1984). Moreover, unlike the circumstance in Boyd, we do not view the agent’s comment as an attempt to interject evidence of other crimes to bolster a factually weak case. See Tutman v. State, 164 Ga. App. 400 (296 SE2d 412) (1982). Accordingly, we do not find the challenged remark so flagrantly prejudicial as to violate appellant’s right to a fair trial. See id.

Decided October 23, 1990.

Daniel L. Henderson, for appellant.

Thomas J. Charron, District Attorney, for appellee.

5. We find no merit in appellant’s contention that he received ineffective assistance of counsel during closing argument, for we find the challenged comments, taken in the context of the entire closing argument, to have been part of counsel’s trial strategy. “The mere fact that appellate counsel would have tried the case differently does not show ineffectiveness. [Cit.] Errors of judgment and trial tactical errors do not constitute ineffectiveness. [Cit.]” Johnson v. State, 179 Ga. App. 21, 25 (345 SE2d 123) (1986).

Judgment affirmed.

Car ley, C. J., and McMurray, P. J., concur.


author: Cooper, Judge.

text:
    A90A1346.
    BROWN v. THE STATE.
    (398 SE2d 424)
   Cooper, Judge.

Appellant appeals his conviction of the offense of felony obstruction of a police officer.

The arresting officer testified at trial that he had been requested to patrol a certain area, and on patrol, noticed several people congregated on a vacant lot in that area. He approached the group, shined a flashlight on them and noticed appellant drop a matchbox. Upon inspection of the contents of the matchbox, the officer found what appeared to be several pieces of crack cocaine. The officer told appellant that he was under arrest for possession of cocaine and attempted to handcuff appellant at which time appellant began to struggle with the officer. The officer testified that during the struggle appellant pulled a knife from his pocket, and when the officer stepped away, unsnapped his holster, put his hand on his gun and ordered appellant to stop, appellant threw the knife a distance away. As the officer continued to struggle with appellant to put him against the hood of the patrol car, the officer placed the matchbox on the car hood. Appellant grabbed the matchbox and threw it away. When another officer arrived, handcuffs were placed on appellant and he was arrested. A later search of the surrounding area did not yield a knife or a matchbox.

Decided October 24, 1990.

Larry B. Mims, for appellant.

James L. Wiggins, District Attorney, Timothy G. Vaughn, Assis tant District Attorney, for appellee.

Appellant testified that the officer pulled up on the group and told appellant he was under arrest for being drunk and for possession of cocaine. After appellant denied the charges, the officer began to handcuff appellant. Appellant stated that he told the officer to take it easy because he had recently had back surgery. Appellant denied at trial ever possessing drugs, a matchbox or a knife. He denied the officer’s testimony that he pulled a knife on the officer. Three other witnesses were called at trial who corroborated appellant’s testimony.

1. Appellant first enumerates that the jury’s verdict is not supported by the evidence. “ ‘ “(T)he credibility of a witness is a matter for the trier of fact, and this court will not disturb the jury’s finding unless it is insupportable as a matter of law. (Cit.)” ’ ” Sharp v. State, 192 Ga. App. 353 (1) (385 SE2d 23) (1989). We will not disturb the jury’s finding in the instant case because we find the evidence adduced at trial sufficient for a rational trier of fact to find appellant guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant next contends that the court erred in its recharge to the jury on the different degrees of obstruction of an officer. The court originally charged the jury on both the misdemeanor and felony forms of obstruction of an officer. When the jury requested a recharge on that issue, the court repeated the statutory requirements of each and then gave examples of each to clarify their meanings and applications. “ ‘It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.’ [Cit.]” Jackson v. State, 193 Ga. App. 844 (2) (389 SE2d 521) (1989). Our review of the recharge convinces us that it was a thorough and accurate statement of the law and correctly reflected the charges in the indictment; therefore appellant’s criticisms of the recharge are without merit.

Judgment affirmed.

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


text:
    A90A1381.
    FELTON v. WHITE.
    (398 SE2d 425)
   Cooper, Judge.

Appellant brought an action against appellee to recover for injuries received when her car collided with appellee’s car. Appellee was travelling southbound in the right lane of a two-lane highway behind a tanker truck. Attempting to pass the truck along a curve in the highway, appellee accelerated, moved into the left lane, and then lost control of his car, hit a guardrail and came to rest blocking the left lane. Appellant, also travelling southbound in the right lane, testified that as she attempted to pass the truck, she moved into the left lane, proceeded around the curve alongside the truck and collided with appellee’s car in the left lane. During the trial, the investigating officer testified that as a result of his investigation of the accident, he concluded that the accident happened because both drivers lost control of their vehicles. The jury returned a defendant’s verdict which read: “We, the Jury find as follows: Both equally at fault.” Appellant’s motion for new trial was denied and this appeal followed.

1. Appellant contends that the officer’s testimony about how the accident happened was inadmissible because it was based only on the hearsay statement of the truck driver given to the officer after the accident. The officer testified that he had over 15 years experience investigating automobile accidents and that he had investigated between 1,000 and 1,500 automobile accidents. Prior to the officer’s testimony, the court questioned the officer outside the presence of the jury about the basis for his conclusion as to how the accident occurred, and the officer stated that he based his opinion on his observations of the physical evidence found at the scene, the position of the vehicles, the damage to them and the truck driver’s statement to him. The trial court qualified the officer as an expert and allowed him to state, over objection, his conclusion that both drivers lost control of their vehicles. “[A] police officer with investigative training and experience on automobile collisions is an expert.” Massee v. State Farm &c. Ins. Co., 128 Ga. App. 439 (3) (197 SE2d 459) (1973). “ ‘An expert who has been duly qualified may express his opinion on a given state of facts although it be a conclusion, and such testimony is not inadmissible, but the opposing party may be cross-examination elicit other facts tending to show that the conclusion is, as he contends, based on insufficient data.’ [Cit.]” Id. Furthermore, “ ‘[w]hen an expert’s testimony is based on hearsay, the lack of personal knowledge on the part of the expert does not mandate the exclusion of the opinion but, rather, presents a jury question as to the weight which should be assigned the opinion. The evidence should go to the jury for whatever it’s worth.’ [Cits.]” Jones v. Ray, 159 Ga. App. 734 (4) (285 SE2d 42) (1981). The officer’s testimony was not based solely on the statement of the truck driver and did not intimate whether either of the two drivers was negligent. Therefore, we conclude that the trial court properly allowed the testimony of the police officer.

Decided October 24, 1990.

James & Carey, John D. Carey, for appellant.

Walker, Hulbert, Gray & Byrd, Michael G. Gray, Lawrence C. Walker, Jr., for appellee.

2. Appellant also enumerates as error that the verdict was contrary to the weight of the evidence. We find that the evidence was sufficient to authorize the jury’s finding that both parties were equally at fault. “Where there is any evidence to support the verdict, this court will not disturb the verdict. [Cit.]” Chatman v. Blassingame, 192 Ga. App. 288 (1) (384 SE2d 433) (1989).

Judgment affirmed.

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


author: Pope, Judge.

text:
    A90A1423.
    WILLIAMS v. THE STATE.
    (398 SE2d 427)
   Pope, Judge.

Defendant Victor Terel Williams was convicted of possession of cocaine, and appeals.

1. The arresting officer testified he observed the defendant throw down a matchbox as he drove up beside a night club where defendant was standing. The area was known to be a place where drugs are sold. The officer retrieved the matchbox and discovered it contained a substance which later tested to be crack cocaine. The incident occurred at approximately 4:00 in the afternoon in broad daylight. According to one of defendant’s witnesses, another individual and not the defendant threw down the matchbox. We reject defendant’s argument that the evidence was insufficient to support the conviction. The direct testimony of the officer was sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). “The jurors must weigh and resolve any conflicts presented by the evidence. The appellate court must view the evidence in the light most favorable to the jury’s verdict. [Cit.] Based on the evidence presented at trial, we are satisfied that any rational trier of fact could have found the [defendant] guilty beyond a reasonable doubt.” King v. State, 157 Ga. App. 733, 734 (1) (278 SE2d 491) (1981).

Decided October 24, 1990.

Robert Culpepper III, for appellant.

J. Brown Moseley, District Attorney, for appellee.

2. Defendant testified he told the arresting officer when he was arrested that the matchbox was not his and asked for a fingerprint test and a urine test. On rebuttal the arresting officer testified the defendant gave no statement after arrest and denied the defendant told him the cocaine did not belong to him. Generally, the defendant’s exercise of his constitutional right to remain silent cannot be used as inculpatory evidence against the defendant. However, testimony the defendant remained silent can be presented to impeach defendant’s testimony otherwise. “It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict [the statements defendant claims to have made to police upon arrest].” Doyle v. Ohio, 426 U. S. 610, 619, n. 11 (96 SC 2240, 49 LE2d 91) (1976). The trial court did not err in permitting the officer’s rebuttal testimony.

Judgment affirmed.

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


text:
    A90A1452.
    DIXON v. THE STATE.
    (398 SE2d 428)
   Cooper, Judge.

Appellant was convicted by a jury of aggravated assault, aggravated sodomy and kidnapping. On appeal, he enumerates as error the denial of his motion to suppress.

The evidence adduced at trial shows that on March 17, 1989, the victim delivered a pizza to appellant at his trailer. Appellant confronted the victim with a sawed-off shotgun and forced her inside his trailer. Appellant held the sawed-off shotgun to the victim’s head and forced her to have oral sex with him. The victim was later able to escape to a nearby house, the police were called, and appellant was subsequently arrested. On the night of appellant’s arrest, the police searched appellant’s trailer with his consent, but nothing was found. The police searched the trailer pursuant to warrants on March 18 and March 20, and during the March 18 search, pieces of the victim’s clothes were found but during neither search was the sawed-off shotgun found. On December 12, 1989, the morning of appellant’s trial, a search warrant was issued based on the affidavit of one of the investigating officers that he had received information that day from a reliable confidential informant who had personal knowledge that the sawed-off shotgun was concealed within the walls of appellant’s residence. The search warrant was executed and a sawed-off shotgun was found in the exact location provided by the informant. After hearing evidence, the trial court denied appellant’s motion to suppress the sawed-off shotgun.

Decided October 24, 1990.

John R. Thigpen, Sr., for appellant.

Harry D. Dixón, Jr., District Attorney, Deborah M. Perlis, Assistant District Attorney, for appellee.

Appellant contends that the search warrant was defective because the supporting affidavit did not include facts from which the magistrate could make an independent judgment as to whether or not the information was stale. Specifically, appellant urges that the affidavit did not contain the date of the offense. “Time is assuredly an element of the concept of probable cause. [Cit.] However, the precise date of an occurrence is not essential. Rather, the inquiry is as to whether the factual statements within the affidavit are sufficient to create a reasonable belief that the conditions described in the affidavit might yet prevail at the time of issuance of the search warrant. [Cit.]” State v. Luck, 252 Ga. 347 (312 SE2d 791) (1984). The affiant/ officer applied for the warrant on the same day that he received the tip. The informant was known by the officer to be reliable and had personal knowledge that the sawed-off shotgun was concealed within the walls of appellant’s residence. Viewing the information provided to the magistrate as a whole, we find that there was a substantial basis for the magistrate’s finding of probable cause that the sawed-off shotgun was located at appellant’s residence. See Jackson v. State, 188 Ga. App. 834 (2) (374 SE2d 777) (1988).

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A90A2127.
    MARSHALL et al. v. GATISON.
    (398 SE2d 429)
   Beasley, Judge.

Defendants Marshall and Smith appeal the denial of their motion to traverse service. Although styled a “motion to traverse service,” the motion sought to vacate a judgment entered for plaintiff on March 23, 1989. Defendants enumerate as error the failure of the trial court to vacate the March 23 judgment and argue that because of the failure to properly serve Smith the court lacked jurisdiction and the judgment was void and cannot stand.

Decided October 24, 1990.

William A. Wehunt, for appellants.

Hiles & Rowen, Sharon L. Rowen, John E. Klonoski, for appellee.

The substance of a pleading and not mere nomenclature determines its nature. Cotton v. Fed. Land Bank, 246 Ga. 188, 191 (269 SE2d 422) (1980). The defense motion sought to set aside the judg-. ment based upon lack of jurisdiction. OCGA § 9-11-60 (d) (1). As such, OCGA § 5-6-35 (a) (8) controls, providing for discretionary review of such a judgment. By directly appealing and not filing an application for review, appellants have failed to engage the jurisdiction of this court. Ko v. Habersham Fed. Savings Bank, 194 Ga. App. 769 (391 SE2d 723) (1990).

Appeal dismissed.

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


text:
    A90A1174.
    SOUTHEAST ATLANTIC CARGO OPERATORS, INC. v. FIRST STATE INSURANCE COMPANY.
    (398 SE2d 264)
   Beasley, Judge.

Southeast Atlantic Cargo Operators, Inc. (SEACO) appeals the judgment entered for First State Insurance Company which held First State was not obligated to provide “drop down” coverage.

SEACO leased a warehouse from the Georgia Ports Authority at which two of its stevedores were injured. In 1985, they sued GPA, which made a third-party claim against SEACO based on the indemnification clause in the lease. SEACO’s primary insurer Midland Insurance Company assumed the defense and provided coverage for the third-party claim. Midland was declared insolvent in 1986. The Georgia Insurers Insolvency Pool then provided a defense for the third-party action but denied coverage.

SEACO had an excess insurance policy with First State, which it contends is ambiguous and requires First State to assume primary coverage.

The declarations page, source of the claimed ambiguity, contains “Limits of Liability: The limit of the Company’s liability shall be as stated herein, subject to all the terms of this policy having reference thereto I. $10,000,000 Single limit any one OCCURRENCE combined PERSONAL INJURY, PROPERTY DAMAGE and ADVERTISING INJURY or DAMAGE in excess of . . . [t]he amount recoverable under the underlying insurance [the Midland policy] as set out in Schedule A attached. . . .” (Emphasis supplied.) This is the only use in the policy of “recoverable” modifying “underlying insurance.”

The insuring agreement provides that First State will indemnify SEACO for “ULTIMATE NET LOSS, as defined hereinafter, in excess of RETAINED LIMIT, as herein stated. ...”

Retained limit is defined in the following. “The Company shall be liable only for the ULTIMATE NET LOSS in excess of the greater of the INSURED’S: . . . UNDERLYING LIMIT — an amount equal to the limits of liability indicated beside the underlying insurance listed in the Schedule A of underlying insurance, plus the applicable limits of any other underlying insurance collectible by the INSURED . . . .” (Emphasis supplied.) Midland’s listed limit was $500,000.

“ ‘ “(U)nder Georgia law in attempting to ascertain the intentions of the parties, insurance contracts are governed by the ordinary rules of construction applicable to other contracts. [Cit.] The contract must be examined ‘as a whole’ in attempting to construe any portion thereof. (Cits.) ‘Where the terms and conditions of a policy are unambiguous, the court must declare the contract as made by the parties .... Where the meaning is plain and obvious, it should be treated as literally provided therein.’ Genone v. Citizens Ins. Co. of N. J., 207 Ga. 83, 86 [(60 SE2d 125)] (1950) (citations omitted.)” ’ United States Fire Ins. Co. v. Capital Ford Truck Sales, 257 Ga. 77, 78 (355 SE2d 428), quoting Garmany v. Mission Ins. Co., 785 F2d 941, 945 (11th Cir. 1986) with approval.” Lamb Bros. Lumber Co. v. S. C. Ins. Co., 186 Ga. App. 51, 53 (366 SE2d 388) (1988). Pilot Life Ins. Co. v. Morgan, 94 Ga. App. 394, 398 (94 SE2d 765) (1956).

“ ‘The existence or non-existence of an ambiguity is itself a question of law for the court. [Cit.] If the court determines that there is an ambiguity, this does not automatically give rise to a jury question, however, (Cit.) At this point it becomes the duty of the court to . attempt to resolve the ambiguity by applying the rules of construction set forth in OCGA § 13-2-2. (Cits.) It is only when the ambiguity remains after the statutory rules have been applied that the issue becomes one for the jury. (Cits.)’ Capital Ford Truck Sales v. U. S. Fire Ins. Co., 180 Ga. App. 413, 417 (1) (349 SE2d 201) (1986), rev’d and vacated on other grounds, 257 Ga. 77 (355 SE2d 428) (1987), 183 Ga. App. 242 (360 SE2d 78) (1987).” McClintock v. Wellington Trade, 187 Ga. App. 898, 902 (1) (371 SE2d 893) (1988).

SEACO argues that admitted dicta in Capital, supra, 257 Ga. at 81, supports its contention of ambiguity, as well as several cases from foreign jurisdictions dealing with the First State policy. SEACO acknowledges an opposing line of foreign cases holding as did the court below.

The statement in Capital, quoted from Mission Nat. Ins. Co. v. Duke Transp. Co., 792 F2d 550, 553 (1) (5th Cir. 1986), as part of a synopsis of cases from other jurisdictions dealing with excess coverage issues, was: “[w]hen an excess insurer uses the term ‘collectible’ or ‘recoverable’ it is agreeing to drop down in the event the primary coverage becomes uncollectible or unrecoverable. . . .” SEACO contends that the use of “recoverable” on the declarations page is such use and carries through the entire policy. This passing reference in Capital cannot be read to mandate drop-down coverage in the present case, for to do so would totally ignore the remainder of the contract entered into by the parties.

Decided October 11, 1990

Rehearing denied October 25, 1990

Bouhan, Williams & Levy, Edwin D. Robb, Jr., Joseph A. Mulherin III, for appellant.

Chamlee, Dubus, Sipple & Walter, George H. Chamlee, Frank A. Lightmas, Jr., Brennan, Harris & Rominger, Edward T. Brennan, for appellee.

We conclude, as apparently did the court below, that the general statement on the declarations page does not negate the specific provisions defining coverage contained in the body of the policy. Auto-Owners Ins. Co. v. Barnes, 188 Ga. App. 439, 440 (1) (373 SE2d 217) (1988).

As have sister courts from other jurisdictions in adopting their reasoning, we find no ambiguity is created by the policy and that First State is not required to provide drop-down coverage here. Radiator Specialty Co. v. First State Ins. Co., 651 FSupp. 439 (W.D.N.C. 1987), aff’d 836 F2d 193 (4th Cir. 1987); Morbark Indus. v. First State Ins. Co., 429 NW2d 213 (Ct. App. Mich. 1988); Werner Indus. v. First State Ins. Co., 548 A2d 188 (Sup. Ct. N.J. 1988).

Judgment affirmed.

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


text:
    A90A1294.
    STRICKLIN & COMPANY v. CROW LAND DEVELOPMENT, INC. et al.
    (398 SE2d 865)
   Beasley, Judge.

Plaintiff Stricklin & Company, a Georgia limited partnership, appeals from the trial court’s denial of its motion for partial summary judgment and grant of defendants’ motions to dismiss for failure to state a claim and motions for summary judgment. The suit claims the intentional interference with prospective contractual relations surrounding the sale and purchase of a sizable and valuable tract of real property. Perry & Co. v. New South Ins. Brokers, 182 Ga. App. 84, 89-90 (4) (354 SE2d 852) (1987), sets forth the elements of the tort.

Decided October 11, 1990

Rehearing denied October 25, 1990

Devine & Morris, Foy R. Devine, for appellant.

Hicks, Maloof & Campbell, Charles E. Campbell, Paul L. Hanes, Moore & Rogers, John H. Moore, William R. Johnson, for appellees.

The trial court entered an extensive order setting out the nature and history of the case, the undisputed facts, and the law applicable, as well as its legal conclusions. Considering the record and the enumerations of error urged on appeal, the judgment must be affirmed because defendants were entitled to it as a matter of law. We could not materially improve upon the trial court’s order which adequately explains its correct decision, and the judgment is affirmed in accordance with Rule 36 (3).

Judgments affirmed.

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


text:
    A90A0989.
    GARRETT v. K-MART CORPORATION.
    (398 SE2d 302)
   Sognier, Judge.

Jimmie Garrett brought an action against her employer, K-Mart Corporation, seeking damages for injuries she incurred when she fell while at work. The trial court granted K-Mart’s motion to dismiss, and Garrett appeals.

The injury at issue occurred on September 19, 1987. Appellant sought benefits under the Workers’ Compensation Act (the Act), OCGA § 34-9-1 et seq., but her claim was denied based on the findings of the administrative law judge and the State Board of Workers’ Compensation that appellant’s injury did not arise out of her employment, see OCGA § 34-9-1 (4), but rather was caused by a pre-existing condition that was not aggravated by her work with appellee. See Borden Foods Co. v. Dorsey, 112 Ga. App. 838 (146 SE2d 532) (1965). The instant suit, filed on June 9, 1989, was dismissed by the trial court pursuant to OCGA § 34-9-11, which provides that “[t]he rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee, ... at common law or otherwise, on account of such injury.” The trial court held that because appellant was injured “during the course and scope of her employment” she was precluded by OCGA § 34-9-11 from pursuing her common law tort claim against appellee. The trial court’s consideration of matters outside the pleadings, namely, the prior proceedings under the Act, require that as to this issue appellee’s motion to dismiss be treated as and disposed of as one for summary judgment. OCGA § 9-11-12 (c).

We agree with appellant that an injury which does not “arise out of’ the employment is not covered by the Act, even where the injury may have occurred “in the course of” the employment. “Injury” as defined in OCGA § 34-9-1 (4) “means only injury by accident arising out of and in the course of the employment.” (Emphasis supplied.) It has long been established that both “[a]rising out of and in the course of the employment must concur before the workers’] compensation act can apply to an injury to an employee. [Cit.]” Lumbermen’s Mut. Cas. Co. v. Babb, 67 Ga. App. 161, 164 (19 SE2d 550) (1942). It follows that where, as here, the first statutory requirement is not met, in that the injury did not “arise out of” the employment, the Act is not applicable regardless whether the injury met the second requirement and occurred “in the course of” the employment. We note that although this court’s opinions, in determining whether the two requirements of OCGA § 34-9-1 (4) have been met, consistently discuss the matter in terms of whether an injury is “compensable” under the Act rather than whether the injury is “covered” by the Act (see, e.g., Blair v. Ga. Baptist &c., 189 Ga. App. 579, 580-581 (1) (377 SE2d 21) (1988); Borden, supra at 838-839 (3)), that terminology has not been employed in a manner to support the reasoning used by the trial court. The substance of those cases is that where an injury fails to meet either of the two statutory requirements under OCGA § 34-9-1 (4), that injury is not covered by or subject to the Act. Cases where the claimed injury was covered by the Act but no compensation was available for the claimant, such as Venable v. John P. King Mfg. Co., 174 Ga. App. 800, 803 (331 SE2d 638) (1985), are distinguishable in that the injuries involved therein nevertheless met the initial statutory requirement of OCGA § 34-9-1 (4) that the injury both “arise out of’ and occur “in the course of’ the employment.

However, a judgment right for any reason is to be affirmed. Orkin Exterminating Co. v. Walker, 251 Ga. 536, 539 (307 SE2d 914) (1983). “[T]he doctrines of res judicata and estoppel by judgment are applicable to awards of the State Board of Workers’] Compensation on all questions of fact in matters in which it has jurisdiction. [Cits.]” Woods v. Delta Air Lines, 237 Ga. 332 (227 SE2d 376) (1976). The doctrine of res judicata applies where there is an identity of parties, an identity of the cause of action, and adjudication by a court of competent jurisdiction. Georgia Cas. &c. Co. v. Randall, 162 Ga. App. 532, 533 (292 SE2d 118) (1982). The parties in the case at bar are the same as those at the administrative hearing. As to the remaining two requisites, we find they are controlled here by Southern Wire &c. v. Fowler, 217 Ga. 727, 731 (124 SE2d 738) (1962).

A review of the factual determinations made by the ALJ and the Board reveals that several significant matters had been established adversely to appellant, including (1) that both parties to this appeal were subject to the Act; (2) that her fall was caused only by her preexisting Meniere’s Syndrome; (3) that appellant’s condition was not aggravated by her work with appellee; (4) that there was nothing on the job which contributed to appellant’s fall; and (5) that there was no peculiar danger to which her work exposed her. In her complaint, appellant’s allegations do not directly contradict the above findings. Rather, the basis for appellant’s complaint is that appellee, through its agents, knew about her tendency to faint (of which she asserts she was unaware) and therefore had superior knowledge of the dangers of appellant’s work place, yet appellee continued to employ her in conditions which it knew were especially dangerous to her. (We note that appellant’s pleadings do not involve any breach of professional responsibility. Compare Downey v. Bexley, 253 Ga. 125 (317 SE2d 523) (1984).)

Construing appellant’s pleadings liberally, the most likely interpretation to be given them is that she is alleging a breach of her employer’s duty to furnish her with a safe working place under OCGA § 34-7-20. However, in Southern Wire &c., supra, the Supreme Court held that where an employer and employee are under the provisions of the Act, a claim by the employee that the employer failure to furnish the employee with a safe place to work, even if wilfully done, is encompassed within the Act.

Thus, under Southern Wire &c., supra, the question whether appellant’s injury arose out of appellee’s failure to provide her with an alternate, or safer, work place, was also an issue for adjudication by the ALJ and the Board pursuant to the Act. In the case sub judice, the ALJ and the Board determined that appellant’s injury did not arise out of her existing work environment, i.e., that her work place was not the contributing proximate cause of the injury. See Greene v. Transport Ins. Co., 169 Ga. App. 504, 505 (1) (313 SE2d 761) (1984). “The subject workers’ compensation award makes no reference whatsoever to the issue of [the safety of appellant’s work place], yet it is clear . . . that the ALJ could have adjudicated this issue under [Southern Wire &c., supra.] ‘While it is true that if the matter in the pending case was not in fact litigated in the former suit, yet if it could and should under the rules of pleading have been there adjudicated, it is res judicata. . . [.]’ [Cit.]” Ga. Cas. &c. Co., supra at 534. Therefore, because “‘[a] judgment is conclusive as to all matters put in issue, or which under the rules of law might have been put in issue on the trial of the case,’ [cits.]” id., appellant’s failure to assert that appellee did not provide her with a safe working place when litigating the matter before the appropriate tribunal precludes her from asserting that claim now.

Decided October 25, 1990.

Michael C. Smith, E. Earl Seals, for appellant.

Glover & Davis, Carlton H. Jones III, for appellee.

Finally, to the extent that appellant’s pleadings may be construed to assert a cause of action under the Georgia Equal Employment for the Handicapped Code, OCGA § 34-6A-1 et seq., it appears that even if appellant qualifies as a handicapped person under OCGA § 34-6A-2 (2), a matter on which we intimate no opinion, her suit must nevertheless fail in that OCGA § 34-6A-4 (a) places no burden on any employer “to modify his physical facilities or grounds in any way or exercise a higher degree of caution for a handicapped individual than for any person who is not a handicapped individual.” Therefore, because appellant’s allegations disclose with certainty that she would not be entitled to relief under any state of probable facts, see generally Frady v. Irvin, 245 Ga. 307, 311 (5) (264 SE2d 866) (1980), the trial court’s judgment is affirmed.

Judgment affirmed.

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


text:
    A90A1246.
    A90A1287.
    A90A1376.
    DELTA TRAFFIC SERVICE, INC. v. SNIDER. DELTA TRAFFIC SERVICE, INC. v. GUSTO BRANDS, INC. et al. DELTA TRAFFIC SERVICE, INC. v. DIXIE-RIVERSIDE, INC.
    (398 SE2d 430)
   Beasley, Judge.

This is a consolidated appeal from the grants of summary judgment in three separate suits brought by the assignee of a bankrupt regulated motor carrier seeking collection of the difference between shipping rates negotiated with the assignor bankrupt carrier and the tariffs filed by the carrier with the Interstate Commerce Commission (ICC).

During the years 1983 through 1985, Floyd T. Snider d/b/a Smokey Snider Distributing Company (Snider), Gusto Brands, Inc. d/ b/a Triangle Beverage Company (Gusto), and Dixie-Riverside, Inc. (Dixie) utilized the services of Claxton Transport, Inc., to ship alcoholic beverages. Claxton billed each for the shipments at negotiated rates which were lower than the carrier’s tariffs filed with the ICC. The negotiated rates were never filed. The parties paid the invoices at the agreed lower rates. After Claxton filed for bankruptcy, its assignee, Delta Traffic Service, Inc., billed the parties for the undercharges, i.e., the differences between the negotiated shipping rates and the higher published tariffs. The parties refused to pay and Delta filed the present actions to collect the principal sums of the undercharges plus pre- and post-judgment interest and costs.

A common response of all three defendants was a challenge to the reasonableness of the practice. In their responsive pleadings, Snider and Gusto also specifically challenged the reasonableness of the published tariffs underlying Delta’s claims. Each defendant moved to stay the proceedings in order to seek a determination by the ICC. The stays were granted and the trial courts referred the cases to the ICC, requesting determination of the issue of the reasonableness of seeking the undercharges. The court in the Dixie case expressly requested the ICC to also determine the reasonableness of the charges which Delta claimed were due.

Defendants along with two other similarly situated companies filed a joint complaint against Delta with the ICC. It requested that the ICC enter an order denying recovery of the undercharges based on a finding that collection of such charges constituted an unreasonable practice, pursuant to the ICC’s authority under 49 USC §§ 10701 and 10704. The ICC found that the joint complaint raised issues of negotiated rates addressed in NITL — Pet. to Inst. Rule on Negotiated Motor Car., 3 ICC 2d 99 (1986) (Negotiated Rates) and concluded that it would be an unreasonable practice for Claxton or Delta to collect the undercharges. It made no determination about the reasonableness of the filed tariffs underlying Delta’s claims.

Following the ICC decision and motions for summary judgment by the defendants and by Delta, each defendant was granted judgment and the same was denied as to Delta. Delta filed three separate appeals and all parties jointly moved to consolidate and stay the appeals pending a decision by the United States Supreme Court, which the parties agreed would be dispositive of the legal issues. Consolidation was granted and briefing time was extended to await the United States Supreme Court decision.

On June 21, 1990, the Supreme Court published Maislin Indus. U. S. v. Primary Steel, 58 USLW 4862 (1990), holding that the ICC’s Negotiated Rates policy was invalid because it was inconsistent with the Interstate Commerce Act’s requirement that motor common carriers publish their rates in tariffs filed with the ICC, 49 USC § 10762, and because it was inconsistent with the Act’s prohibition that carriers and shippers not deviate from those rates, 49 USC § 10761.

Delta contends that the courts erred in applying the doctrine of primary jurisdiction and referring the cases to the ICC on the question of unreasonable practice and that they further erred in adopting the substantive decision of the ICC. Delta maintains that it, rather than defendants, was entitled to summary judgment.

Decided October 25, 1990.

Arthur B. Seymour, for appellant.

Varner, Stephens, Wingfield & Humphries, R. Daniel Douglass, Herbert H. Gray III, Paul W. Calhoun, Jr., for appellees (case nos. A90A1246 and A90A1287).

Jolles & Slaby, Richard A. Slaby, for appellee (case no. A90A1376).

In light of Maislin, the trial courts’ grants of summary judgment to defendants on the basis of the ICC’s application of its Negotiated Rates policy cannot be sustained. However, the trial courts did not err in initially deferring to the ICC.

Prior to Maislin, the majority of federal appellate courts that had addressed the issue of enforceability of the ICC’s negotiated rates policy upheld it. See Maislin, 58 USLW at 4868, note 1. Furthermore, in the present cases, the issue of the reasonableness of the practice of seeking rate undercharges was not the only question for determination; the reasonableness of the published tariffs was also at issue. Maislin expressly recognizes that even under the filed rate doctrine, the tariff rate is not enforceable if the ICC finds it to be unreasonable. See also Louisville & Nashville R. Co. v. Maxwell, 237 U. S. 94, 97 (35 SC 494, 59 LE 853) (1915); Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 440-42 (27 SC 350, 51 LE 553) (1907). Thus, such determination is primarily the ICC’s. The Supreme Court of Georgia has also concluded that “[a] 11 questions as to the applicability of tariffs and the construction and reasonableness of freight charges on goods shipped in interstate commerce are primarily for determination by the Interstate Commerce Commission. . . .” Belk-Mathews Co. v. Great Southern Trucking Co., 218 Ga. 610, 611 (129 SE2d 765) (1963). Therefore, even if in hindsight it was error for the trial courts to defer to jurisdiction of the ICC oh the question of unreasonable practice because of invalidation of the ICC’s negotiated rates policy, it was not, and is not, error to refer for resolution the question of rate reasonableness.

The question of reasonableness of the filed rate underlying Delta’s claims against the three appellees was raised and remains unresolved. Delta is presently precluded from judgments in its favor as a matter of law based on the challenged filed rates. Of course, appellees are not entitled to summary judgments either.

Judgments reversed.

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


text:
    A90A1458.
    EVANS v. CUSHING PROPERTIES et al.
    (398 SE2d 306)
   Beasley, Judge.

Evans, a licensed real estate broker, sued to recover a real estate sales commission from Cushing Properties, Reggie Jackson and Lenard Bryant, on the ground that his business was the procuring cause.

Cushing Properties, a general partnership, owned land on Cushman Circle which was sold to Rumph. Bryant was a real estate agent employed by Evans when Bryant first acted for Rumph in attempting to purchase the property. He left Evans and was employed by Jackson, a licensed real estate broker, both when the sales contract between Cushing Properties and Rumph was executed and when the sale was consummated.

When Cushing Properties answered it counterclaimed and cross-claimed for interpleader, contending that because of the conflicting claims it was in doubt as to who was entitled to the commission. It deposited the commission into the registry of the court, which granted its motion for summary judgment and dismissed it as a party, directing an award in its favor of $1,500 costs for expenses and attorney fees.

The jury verdict was for broker Jackson and agent Bryant. Evans appeals from the judgment entered on the jury verdict, the denial of his motions attacking that judgment and the grant of summary judgment to defendant Cushing Properties on its counterclaim for inter-pleader.

1. (a) Assigning error on the denial of his motions for judgment n.o.v. and for new trial, Evans asserts the evidence did not authorize the verdict.

The evidence must be construed in favor of the verdict. Department of Transp. v. Hillside Motors, 192 Ga. App. 637, 639 (2) (385 SE2d 746) (1989). It is examined in light of the following principles. “In determining whether a broker was the procuring cause of the sale where there is no exclusive contract to sell, it must be established that (i) the negotiations were still pending between the broker and the prospective purchaser; and (ii) the owner was aware that the negotiations were still pending at the time he consummated the sale.” Hendrix v. First Nat. Bank of Columbus, 173 Ga. App. 513, 515 (326 SE2d 489) (1985). Further considerations in ascertaining whether a broker was the procuring cause are set out in Kraft Land Svcs. v. Hart Co., 165 Ga. App. 358 (300 SE2d 186) (1983); Gibbs v. Nixon, 154 Ga. App. 463 (268 SE2d 670) (1980); Jordan v. Dolvin Realty Co., 54 Ga. App. 472 (188 SE 304) (1936).

Rumph was Bryant’s client in June 1986 and had been involved with him in a joint purchase of land. Bryant showed Cushing Properties’ land to Rumph and took his offer of purchase to Kirkpatrick, Cushing Properties’ managing partner. Kirkpatrick was not interested in the offer, which was made to him twice, the second time for a higher amount. He was not interested because he had a sales contract in hand. Rumph’s attempted deal was considered by all as “dead,” even though Kirkpatrick retained the original purchase offer and Rumph’s earnest money check. On July 17 Bryant left Evans’ employment because of unrelated disagreements and began work for Jackson the following day.

On August 7, having learned that Cushing Properties’ deal had fallen through, Rumph and Bryant approached Kirkpatrick again with an offer. Although its amount was the same as Rumph’s earlier second offer, ($840,000) the parties worked out “from scratch” an entirely new deal for $825,000. The sale closed in 1987. It was then that Evans first learned about it, via a sales commission claim waiver sent to him prior to closing. Broker Jackson denied any knowledge about offers made before he employed Bryant. Rumph, Kirkpatrick and Bryant stated unequivocally that Kirkpatrick refused the second offer made in early July by Bryant on Rumph’s behalf. Each related there was no deal, no continuation and no further negotiations until August 7.

Although the testimony of the principals was contradicted in part by circumstantial evidence and by some conflicting accounts of what transpired, these issues were for the jury, and it resolved them in favor of defendants. Ailion v. Wade, 190 Ga. App. 151, 155 (4) (378 SE2d 507) (1989). The evidence did not demand a contrary result.

(b) Despite the verdict for defendants, Evans unsuccessfully contends he was entitled to recover because defendants did not affirmatively seek by counterclaim or otherwise to recover the broker’s commission. The jury by its verdict found that Evans was not entitled to the broker’s commission, regardless of whether defendants set forth their rights in a positive fashion. Defendants’ answer, however, did pray for the award of the sales commission and asserted their right to it.

2. (a) The trial court properly granted judgment to Cushing on its request for interpleader. “Interpleader provisions are remedial in nature and therefore should be liberally construed in order that their utilitarian purposes may be best effectuated.” Algernon Blair v. Trust Co. of Ga., 224 Ga. 118, 120 (160 SE2d 395) (1968). The holder of contested funds need not “decide at his peril either close questions of fact or of law to entitle him to have the parties at interest set up their claims for determination.” Stone v. Davis, 242 Ga. 17, 20 (247 SE2d 756) (1978). Cushing Properties demonstrated that it was a disinterested stakeholder which only desired to be relieved of determining which claimant should be paid and to be shielded from vexatious litigation. See Kelly v. C & S Nat. Bank, 160 Ga. App. 405, 406 (1) (287 SE2d 343) (1981).

Decided October 25, 1990.

Simmons & Simmons, Robert L. Simmons, for appellant.

Ronald M. Lawrence, Brock & Clay, T. Tucker Hobgood, for appellees.

(b) Evans complains that attorney fees cannot be granted upon motion for summary judgment. They were granted in response to the interpleader’s prayer for such remedy. OCGA § 9-11-121 sets out the counterclaim for interpleader form containing a prayer for costs and attorney fees. The Code section regarding equitable interpleader provides that attorney fees incurred shall be taxed in the bill of costs. OCGA § 23-3-90 (b). Under either section attorney fees may be awarded.

Judgment affirmed.

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


text:
    A90A1614.
    BROWN v. THE STATE.
    (398 SE2d 582)
   Deen, Presiding Judge.

Athea Emmett Brown was tried by a jury and convicted of robbery by intimidation (a lesser included offense of armed robbery), aggravated assault with intent to rob, entering an automobile, and criminal trespass. He was found not guilty of one count of aggravated assault with an offensive weapon. On appeal he asserts the general grounds, contends that the court below erred in failing to grant a mistrial after it gave an Allen charge, and that the aggravated assault with intent to rob count merged with the robbery count.

1. The victim, Courson, was a carpenter who worked on constructing a Sizzler Steak House and who lived in his camper at the construction site for security purposes. About midnight on October 17, 1988, he was dozing off to sleep when he was awakened by someone opening the back window of his camper, and noticed two men at the open window. When he moved, the men ran behind one of the buildings, and he could see by the lights left on at the construction site that one of the men was short and the other was tall and slender. When the men realized that the victim’s warning that he was armed was a ruse, the men began to throw rocks at him and called for him to come out of the camper. When he refused, each man got on one side of his truck and demanded his billfold. When he refused to hand it over, the tall man used a conduit pipe from the building to break out the left side window of the camper, and the short man (the defendant) used the pipe to break the right side window. The men entered the cab of the truck, searched it, and removed a carton of cigarettes. Courson saw their faces when the light came on in the truck. While the men were searching the truck, Courson threw out a radio hoping that it would satisfy them and they would leave. The short man inserted the pipe into the camper through a window and jabbed at the victim several times striking him in the shoulder and chest. The victim came out of the camper, and the short man picked up the radio. The men ran behind a nearby Kroger store, and the victim called the police. He gave the investigating officer a description of his assailants: two black men wearing jeans, one tall and slender and the other short and carrying a radio. When the officer pulled up behind two men matching this description, they noticed him, dropped the radió, and ran. The officer was able to apprehend the short one and took him back to the crime scene where the victim identified him as one of his assailants and stated that the radio was his. The victim also testified that he could identify the defendant by his voice.

The evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Hosch v. State, 185 Ga. App. 71 (363 SE2d 258) (1987).

2. During jury deliberation three notes were sent to the trial judge by the jury. The first two stated that it was deadlocked. After each note the judge advised them to continue their deliberations. A third note requested the court to let the jury see a drawing of the Kroger store made by the defendant. The court called the jury in and told them that he had discussed their request with both lawyers, and that they had agreed to reopen the case to allow the State to introduce the diagram without objection. The court again noted that the jury was unable to reach a decision. A fourth note was received by the court from the jury which indicated that it was split 10-2 because the State had not proved to the satisfaction of all the jurors that “mistaken identity was not involved in the case,” and that the jury did not feel that it was possible to reach a unanimous decision. Before giving the Allen charge, the court indicated to the attorneys that it intended to give such a charge if the jury had not reached a decision by the lunch break. The judge asked if “either side [had] anything to add to that?” Both sides indicated that they did not. After informing the jury of the time and length of the lunch break, and after making sure that it had the requested exhibit, the court asked if either side had any objection or comment. None was made. After the jurors returned from lunch, the court gave the Allen charge, and defense counsel objected and moved for a mistrial.

The charge given is identical to the one set forth in the Council of Superior Court Judges’ Suggested Pattern Jury Instructions. The charge urges the jurors to reach a unanimous decision, but instructs them that the verdict must be the conclusion of each juror and not a mere acquiescence of the jurors in order to reach a verdict. Such a charge is properly given when the trial court, in the exercise of its discretion, believes that the jury is deadlocked. Spaulding v. State, 232 Ga. 411, 413 (207 SE2d 43) (1974); Sanders v. State, 257 Ga. 239, 243 (357 SE2d 66) (1987); Christian v. State, 190 Ga. App. 667, 670 (379 SE2d 807) (1989). We find no abuse of the trial court’s discretion in giving the charge.

Decided October 25, 1990.

John D. McCord III, John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, John H. Petrey, Assistant District Attorneys', for appellee.

3. Count one, robbery by intimidation, did not merge with count two, aggravated assault (with intent to rob). The defendant was found not guilty of aggravated assault with an offensive weapon. As noted in Johnson v. State, 190 Ga. App. 172 (378 SE2d 700) (1980), aggravated assault is not included in robbery or armed robbery as a matter of law, but it may be included as a matter of fact. The facts in the instant case do not show that one offense was included in the other as a matter of fact. The first count, robbery by intimidation, was committed by breaking the windows of the camper and causing the victim to throw out the radio; the second count, aggravated assault (with intent to rob) was committed when the defendant threw rocks at the victim in an attempt to make him get out of the camper. The acts described by the victim constituted separate offenses. See also Harvey v. State, 233 Ga. 41, 42 (209 SE2d 587) (1974); Loumakis v. State, 179 Ga. App. 294, 297 (346 SE2d 373) (1986).

Judgment affirmed.

Pope and Beasley, JJ., concur.