author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A89A1029.
    ENGLISH v. CRENSHAW SUPPLY COMPANY et al.
    (387 SE2d 628)
   McMurray, Presiding Judge.

Plaintiff Gary English brought this products liability action against Crenshaw Supply Company (“Crenshaw”) and Fesco, Inc., and others which are not involved in this appeal. The complaint, as amended, alleged that, on August 1, 1983, plaintiff stepped upon scaffolds which failed, causing plaintiff to fall about 18 feet to the ground; that as a result of the fall plaintiff was permanently paralyzed from the neck down; that the scaffolds were negligently designed and manufactured by defendants; and that the scaffolds were inherently defective. It was also alleged that defendants failed to provide (1) instructions regarding proper use of the scaffolds or (2) warnings regarding the inherent dangers of the scaffolds. Defendants answered the complaint and denied any liability for plaintiff’s condition.

Following discovery, defendants Crenshaw and Fesco, Inc., moved for summary judgment. The trial court granted summary judgment to each of these defendants and plaintiff appealed.

Viewing the evidence in favor of plaintiff, the party opposing the summary judgment motions, we find the following:

Plaintiff was an employee of a construction company. On the day in question, August 1, 1983, a Monday, he attempted to walk upon scaffolds which were attached to the side of a house.

The scaffolds were commonly called carpenters’ brackets or nail-on jacks. They consisted of a triangular metal frame with keyholes and other holes for mounting. They were used to hold walkboards against the side of a house. According to Occupation Safety & Health Regulations of the Department of Labor, the brackets should be attached to a house with a bolt extending from the outside to the inside of the wall; and they should be spaced no more than eight feet apart.

On July 29, 1983, a Friday, a co-employee of plaintiff put the brackets on the side of a house. The brackets were a red color. They did not have an identifying label affixed to them. They did not have a side arm brace.

The co-employee nailed the brackets to studs in the wall. The nails were put through the keyholes and holes in the brackets. Bolts were not used to attach the brackets to the house. The brackets were spaced between 12 and 18 feet apart. Aluminum walkboards were placed on the mounted brackets.

When plaintiff stepped on the walkboards, the brackets (acting like a claw hammer) pulled the nails out of the side of the house and plaintiff fell to the ground, breaking his neck.

Reviewing the depositions and affidavits submitted in support of, and in opposition to, defendant Crenshaw’s and defendant Fesco, Inc.’s summary judgment motions, we find the following:

William P. Crenshaw, Jr., defendant Crenshaw’s secretary/treasurer and chairman of the board, deposed that defendant Crenshaw started selling carpenters’ brackets in the late 1960’s or early 1970’s; that defendant Crenshaw obtained such brackets from defendant Fesco, Inc. until 1972; that defendant Crenshaw sold the carpenters’ brackets “pretty much as they made” them; that the carpenters’ brackets were delivered unpainted and defendant Crenshaw painted them red. William P. Crenshaw, Jr., deposed further that every carpenters’ brackets which defendant Crenshaw ever sold had a side arm attached to it. He also deposed that after purchasing the carpenters’ brackets from defendant Fesco, Inc., defendant Crenshaw purchased carpenters’ brackets from Stanley Iron Works, Inc., and Titan Manufacturing Company; that the Stanley brackets folded up — they were not similar to the carpenters’ brackets used by plaintiff; that the carpenters’ brackets purchased from Titan Manufacturing Company were similar to the carpenters’ brackets used by plaintiff; but that Titan Manufacturing Company did not deliver the carpenters’ brackets to defendant Crenshaw until August 1983. Finally, William P. Crenshaw, Jr., deposed that defendant Crenshaw did not purchase carpenters’ brackets from Allenform, Inc., Ellis Manufacturing Company, Inc., Ladder Distributors, Inc., Saf-T-Green of Atlanta, Inc., JGA of Atlanta, Bil-Jax, Inc., or Waco International, Inc.

In a subsequent affidavit, William P. Crenshaw, Jr., averred that he cannot state whether the carpenters’ brackets involved in this case were manufactured by defendant Fesco, Inc.: “Though Fesco, Inc. did manufacture carpenter brackets for sale by Crenshaw Supply Company in the early and mid-1970’s, and said brackets manufactured by Fesco, Inc. bear some similarities to brackets [involved in this case], it would be sheer speculation for me to identify the brackets [involved in this case] as being manufactured by Fesco, Inc.”

Terry Ayers, president of Ayers Manufacturing, Inc., averred that neither Ayers Manufacturing, Inc., nor Titan Products, Inc. (“Titan”) ever manufactured, designed or distributed the carpenters’ brackets involved in this case. Concerning his knowledge of items manufactured by Titan, Ayers explained that Ayers Manufacturing, Inc., was purchased by Titan and that he remained in the management and development department of Titan until it closed its Atlanta office.

Oliver H. Sale, president of defendant Fesco, Inc., averred that defendant Fesco, Inc., never designed, manufactured or distributed the carpenters’ brackets in question. He added that defendant Fesco, Inc., never even manufactured the type of carpenters’ brackets involved in this case.

In a deposition given in connection with a workers’ compensation proceeding, plaintiffs employer, Edward Lamar Jajko, deposed that he was not aware that carpenters’ brackets should have been used with a bolt. In this regard, he added that nobody in the construction business knew how to install the brackets.

In that same deposition, Edward Lamar Jajko also deposed that the brackets were painted red; and that he purchased the brackets from “Atlanta Scaffolding Company” which was located in Doraville, Georgia.

Subsequently, in this proceeding, Edward Lamar Jajko deposed that, prior to August 1, 1983, he purchased all of his brackets from defendant Crenshaw; that the brackets could not be purchased anywhere else; and that defendant Crenshaw was located off Fulton Industrial Boulevard near the Charlie Brown Airport.

Concerning the discrepancy in his testimony, Edward Lamar Jajko explained that he always called defendant Crenshaw “Atlanta Scaffolding” and he averred that others referred to defendant Crenshaw by that name too. He explained further that he erroneously stated that defendant Crenshaw was located in Doraville because he confused the Peachtree Airport (in Doraville) with the Charlie Brown Airport (near Fulton Industrial Boulevard). As to his confusion, Edward Lamar Jajko stated that shortly before giving the deposition in the workers’ compensation proceeding, he was in an automobile accident and suffered a concussion; that he was taking medication at that time; and that his memory was faulty.

In an affidavit, “Eddie” Jajko averred that defendant Crenshaw gave no verbal or written warnings of any kind concerning use of the brackets; and that “the side arms on the brackets would come off regularly during normal usage and re-use.”

In another affidavit, “Eddie” Jajko averred that he never commingled his carpenters’ brackets with those of any other contractor or subcontractor.

Renee Jajko, “Eddie” Jajko’s wife, averred that she kept the records of “Eddie” Jajko since 1977. A review of the records, Mrs. Jajko averred, yielded no reference to defendant Crenshaw.

David A. Crenshaw, defendant Crenshaw’s president, deposed that defendant Crenshaw distributed a carpenters’ bracket similar to the one used by plaintiff in the early 1970’s. In this regard, he averred that defendant Crenshaw purchased the brackets in a “pre-manufactured” state and painted them red; that he did not know who manufactured the brackets; but that the brackets were equipped with side arms to give them “diagonal support.” The deponent added that various scaffolding manufacturers identify their product by color; and that defendant Crenshaw uses the color red on its scaffolding and shoring. Finally, the deponent averred that beginning in 1983, defendant Crenshaw provided purchasers of its carpenters’ brackets with “a Occupational Safety and Health Act list” regarding proper use of the brackets.

In an affidavit, David A. Crenshaw averred that after being deposed on July 5, 1985, he had an opportunity to review the business records of defendant Crenshaw; that prior to December 1972, defendant Crenshaw mainly purchased carpenters’ brackets from “Waco Scaffold and Supply Company”; that beginning in December 1972, defendant Crenshaw began purchasing such brackets from defendant Fesco, Inc.; that defendant Crenshaw continued to purchase such brackets from defendant Fesco, Inc., through October 1976; that from November 1976 through April 1979, defendant Crenshaw purchased carpenters’ brackets from “Ayers Manufacturing Company”; that, thereafter, beginning in May 1979, defendant Crenshaw purchased such brackets from Stanley Iron Works, Inc., until October 1980; that defendant Crenshaw again purchased such brackets from “Ayers Manufacturing Company” beginning in October 1980 and ending in May 1982; that from May 1982 through July 1983, defendant Crenshaw purchased a collapsible carpenters’ bracket from Stanley Iron Works, Inc.; and that from August 1983 through May 1985, defendant Crenshaw purchased carpenters’ brackets from Titan Products, Inc. The affiant averred further that defendant Crenshaw only purchased carpenters’ brackets with support arms attached to them; that all such brackets were painted by defendant Crenshaw “in what is known as a Waco red color”; and that the brackets involved in this case “appear to be painted in a color other than Waco red.” Finally, the affiant averred that defendant Crenshaw never manufactured a carpenters’ bracket. Rather, the affiant stated, defendant Crenshaw merely purchased such brackets for later distribution.

In a subsequent affidavit, David A. Crenshaw averred that defendant Crenshaw moved to its present location near Fulton Industrial Boulevard in 1973; and that defendant Crenshaw never operated a business in Doraville, Georgia and never operated under the name “ ‘The Atlanta Scaffolding Company,’ ‘Atlanta Scaffolding,’ or ‘Atlanta’s Scaffolding Company,’ or any name other than Crenshaw Supply Company.”

In an affidavit, Edgar L. Crossett III averred that he made an extensive investigation in the Atlanta area to find “ ‘Atlanta Scaffolding’ ” or “ ‘Atlanta Scaffolding Company’ ” but was unable to find such an entity; that he was able to locate the type of bracket involved in this case at defendant Crenshaw; and that defendant Crenshaw was the only place of business in the Atlanta metropolitan area at which he was able to locate the type of bracket in question.

Finally, Richard Bryan, an engineer, averred in an affidavit that he examined a carpenters’ bracket purchased from defendant Crenshaw on June 7, 1985; that the bracket was red in color and “quite similar” to the brackets involved in this case; that “[o]rdinary nails are inadequate to support the bracket on a typical wall stud . . . and if used, pose a grave danger to persons using the brackets.” Bryan averred further: “In view of this danger, a bracket such as the one I inspected must be accompanied, when sold or leased, with instructions on some proper means of securing the bracket to the stud, since the plausible use of ordinary nails might be fatal to any user. Without such instructions, the brackets are death traps. . . . The bracket I inspected had a metal ‘swing arm’ attached to it. The primary function of the swing arm in this bracket is to prevent the planks from moving parallel to the surface of the wall, not away from it. . . . The swing arm provides only negligible support against force which pulls the bracket away from the wall. . . . The swing arm is also defectively designed and constructed. The brad which holds the swing arm on and allows it to move sideways is very weak. The hole at the end of the swing arm lacks a keyhole feature which allows the bracket to be removed from a wall by lifting it upwards. Due to the construction of the hole, the bracket can be removed only by applying great force to the swing arm, such as hammering on it. . . . As the result of this design, the swing arm is likely to pull off or separate from the bracket in repeated use. . . . The bracket I examined contains no warning that use without the swing arm is dangerous. If a component of a bracket [was] necessary to prevent it from coming out of a wall, yet [was] so flimsy as to separate during normal use, it would be necessary to warn users to discard the brackets after the swing arm detached.” Held:

1. OCGA § 51-1-11 (b) (1) provides: “The manufacturer of any personal property sold as new property directly or through a dealer or any other person shall be liable in tort, irrespective of privity, to any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.” The coverage afforded by this code section is invoked “when a manufactured item designed to be sold as new merchandise is initially offered for sale or lease, or otherwise marketed or placed in the stream of commerce. . . .” Thorpe v. Robert F. Bullock, Inc., 179 Ga. App. 867, 872 (348 SE2d 55), aff'd, Robert F. Bullock, Inc. v. Thorpe, 256 Ga. 744 (353 SE2d 340). The code section “imposes strict liability upon manufacturers only.” Hatcher v. Allied Prods. Corp., 256 Ga. 100, 102 (344 SE2d 418). It does not apply to distributors. Id.

Defendant Crenshaw contends it is not a manufacturer as a matter of law and, therefore, it cannot be held liable under a strict liability theory. We disagree.

“ ‘One who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.’ Second Restatement of the Law of Torts § 400; Pierce v. Liberty Furniture [Company, 141 Ga. App. 175 (233 SE2d 33)] at 179.” Pepper v. Selig Chem. Indus., 161 Ga. App. 548, 550 (288 SE2d 693). In the case sub judice, defendant Crenshaw painted the carpenters’ brackets red — defendant Crenshaw’s identifying color. No other trademark or identifying color appeared on the brackets. Thus, construing the evidence in a light favorable to plaintiff, the party opposing defendant Crenshaw’s summary judgment motion, we find a jury question as to whether defendant Crenshaw sold the brackets as if they were its own. Pepper v. Selig Chem. Indus., supra. See also Morgan v. Sears, Roebuck & Co., 693 FSupp. 1154, 1159 (N.D. Ga. 1988).

2. Next, defendant Crenshaw asserts that the evidence fails to show that it was the source of the brackets in question. In this regard, it argues that Eddie Jajko’s statement that he purchased all of his carpenters’ brackets from defendant Crenshaw should be disregarded because it conflicts with previous statements that he purchased all of his carpenters’ brackets from “Atlanta Scaffolding.” This assertion is without merit.

“The decision in Lampkin v. Edwards, 222 Ga. 288 (3) (149 SE2d 708), and cases following it, holding ‘the testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him,’ when passing upon a motion for summary judgment, does not apply to contradictory statements by witnesses who are not parties to the litigation.” Miller v. Douglas, 235 Ga. 222, 223 (219 SE2d 144). Inasmuch as Eddie Jajko is a mere witness, not a party, his testimony, even though contradictory, cannot be resolved against plaintiff. Besides, Eddie Jajko offered a reasonable explanation for the contradiction. Thus, even if he were a party, the testimony would not be construed against him. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680).

3. Defendant Fesco, Inc., asserts it is entitled to judgment as a matter of law because plaintiff is unable to demonstrate that it manufactured the brackets involved in this case. This assertion puts the cart before the horse. On summary judgment, the burden is on defendant Fesco, Inc., to demonstrate that it did not manufacture the product in question. Only after bringing forth evidence showing that it did not manufacture the product does the burden shift to plaintiff to show a genuine issue of material fact exists. As it is said: “The evidence required of the movant to make out his prima facie case should be uncontradicted and leave no room for controversy as to his right to judgment, and should show affirmatively that the plaintiff would not be entitled to recover under any circumstances. [Cits.] The evidence is insufficient to support summary judgment if it merely preponderates towards the defendant’s theory, or if it only discloses that satisfactory proof of plaintiff’s case on trial will be unlikely. [Cits.].” Scott v. Owens-Illinois, 173 Ga. App. 19, 21 (325 SE2d 402).

Via the affidavit of Oliver H. Sale, defendant Fesco, Inc., submitted direct evidence to show that it did not manufacture the carpenters’ brackets or even the type of carpenters’ brackets involved in this case. But that evidence was not uncontradicted.

First, we note that Eddie Jajko purchased all of his carpenters’ brackets from defendant Crenshaw and he never commingled his brackets with those of any other contractor or subcontractor. Next, we note that all of Jajko’s brackets were purchased from defendant Crenshaw prior to 1977. Until that time, according to David A. Crenshaw, defendant Crenshaw purchased carpenters’ brackets from three manufacturers — Waco International, Inc., defendant Fesco, Inc., and “Ayers Manufacturing Company.” William P. Crenshaw, Jr., deposed, however, that defendant Crenshaw did not purchase any brackets from Waco International, Inc.; and Terry Ayers averred that he did not manufacture the brackets in question. Moreover, William P. Crenshaw, Jr., deposed that the brackets manufactured by defendant Fesco, Inc., were similar to the brackets in question. In this regard, William P. Crenshaw, Jr., contradicted Oliver H. Sale’s averment that defendant Crenshaw did not even manufacture the type of brackets involved in this case. Thus, piecing together the deposition testimony of Eddie Jajko, William P. Crenshaw, Jr., and David A. Crenshaw, as well as the affidavits of Eddie Jajko, Renee Jajko and David A. Crenshaw, and viewing this evidence in a light favorable to plaintiff, we find inconsistent circumstantial evidence sufficient to disprove the direct evidence submitted by defendant Fesco, Inc.

“ ‘The rule is that a fact shown by direct, uncontradicted, reasonable and unimpeached evidence cannot be disproved by circumstantial evidence consistent with such direct evidence.’ King v. Sharpe, 96 Ga. App. 71, 78 (99 SE2d 283). On the other hand, direct evidence can be disproved by inconsistent circumstantial evidence. Thus, where direct evidence is contradicted by inconsistent circumstantial evidence, a jury issue is created.” Cobb v. Popeye’s, Inc., 188 Ga. App. 443, 446 (373 SE2d 233).

By judging the credibility of the witnesses, and using the process of elimination, a jury could conclude that the inconsistent circumstantial evidence is sufficient to disprove the direct evidence submitted by defendant Fesco, Inc. Accordingly, we find the evidence insufficient to show conclusively that defendant Fesco, Inc., did not manufacture the carpenters’ brackets involved in this case.

4. We cannot agree with defendants’ assertion that the alleged defects in the brackets were not the proximate cause of plaintiff’s injuries as a matter of law. In a products liability case, the “defect may be the proximate cause or it may be a concurrent proximate cause of injury. Such causation is a causation in fact, which defect directly caused or produced the injury in that the injury would not have occurred without the defect’s existence.” McIntosh, Eldridge’s Ga. Products Liability, § 6-7. “According to Prosser, the ‘but for’ rule may be stated as follows: ‘The defendant’s conduct is not a cause of the event, if the event would have occurred without it.’ Prosser, Law of Torts (4th ed. 1971), 239.” General Motors Corp. v. Davis, 141 Ga. App. 495, 496 (1) (233 SE2d 825). Whether plaintiff would have fallen in the absence of the alleged defect is a question which can only be resolve by the trier of fact.

Whether plaintiff assumed the risk of using the brackets presents another jury question. “Assumption of the risk is applicable to products liability cases ‘(i)f the user or consumer discovers the (product’s) defect and is aware of the danger (emanating from that defect), but nevertheless proceeds unreasonably to make use of the product. . . . (Cit.)’ Center Chemical Co. v. Parzini, 234 Ga. 868 (5) (218 SE2d 580).” Coast Catamaran Corp. v. Mann, 171 Ga. App. 844, 846 (321 SE2d 353), aff’d Mann v. Coast Catamaran Corp., 254 Ga. 201 (326 SE2d 436). The record in the case sub judice is devoid of any evidence tending to show that plaintiff knew it was dangerous to use the brackets with nails.

Finally, we must reject defendants’ contention that the brackets were misused because they were attached without the swing arms. The affidavit of Richard Bryan presents, at the very least, a factual issue concerning the efficacy of the swing arms. According to Bryan, the swing arms were designed defectively and were likely to separate from the brackets with repeated use. Besides, the evidence suggests that the absence of the swing arms did not contribute to the failure of the brackets since their primary function was to provide side-to-side support.

5. The trial court erred in granting summary judgment to defendant Crenshaw and defendant Fesco, Inc..

Judgment reversed.

Carley, C. J., Been, P. J., Banke, P. J., Birdsong, Sognier, Pope and Benham, JJ., concur. Beasley, J., concurs in part and dissents in part.

Beasley, Judge,

concurring in part and dissenting in part.

I agree with the trial court that defendant Fesco is entitled to summary judgment, but I concur with the majority of this court regarding Crenshaw.

As to the alleged original manufacturer Fesco, the undisputed evidence from Fesco’s president is that Fesco “has never manufactured, designed, distributed or sold the . . . brackets or the type . . . brackets depicted in photographs labeled . . . P-4, P-5, and P-6 . . . Fesco Inc. has not been connected in any manner at any time with said . . . brackets.”

Plaintiff testified in deposition that the bracket depicted in these three photos, which bracket is one from his employer’s supply, was the kind of bracket in use when he fell. He could not say it was the bracket. He said the kind in use, however, was not like that depicted in photographs P-1, P-2, and P-3, which had an arm or brace attached. It was a new bracket purchased from Titan.

Crenshaw, who obtained unpainted brackets from Fesco until 1976 and painted them red before selling them, could not say that the bracket depicted (which had been identified as being like but not necessarily the bracket actually involved) was obtained from Fesco. The inescapable inference is that he could not state that the actual bracket in use when plaintiff fell in 1983 originated with Fesco. William Crenshaw also said the brackets bought from Fesco were similar to photographs P-1 through P-3, rather than P-4 through P-6.

Fesco was not Crenshaw’s only source of brackets prior to the time of the tragedy. Ayers Manufacturing, Inc., Titan’s predecessor, was a source following Fesco, from 1976 to 1979 and from 1980 to 1982. The representative of Titan, who had been president of Ayers and prior to its incorporation its sole proprietor, stated that none of these companies had ever manufactured, designed, distributed, or sold the brackets depicted in P-4 through P-6, but he did not mention P-1 through P-3.

There was no evidence such as could overcome the affirmative direct evidence from defendant Fesco excluding it as manufacturer of the brackets in use when plaintiff fell. This differs from Scott v. Owens-Illinois, 173 Ga. App. 19, 22 (3) (325 SE2d 402) (1984), where there was no affirmative evidence negating either manufacturer of the two possible ones as the source of the exploding bottle.

Decided November 1, 1989.

Reynolds & McArthur, Charles M. Cork III, for appellant.

Neely & Player, Richard K. Hines V, Richard Kopelman, Taylor T. Daly, Drew, Eckl & Farnham, Samuel P. Pierce, Jr., Benny C. Priest, for appellees.

Here the allegedly faulty brackets cannot be produced so as themselves to be identified as having been manufactured by some certain manufacturer. Nor can plaintiff prove even by circumstantial evidence and reasonable inferences that Fesco was the source of those brackets, as he cannot even prove by such a method that Fesco manufactured the brackets in P-4 through P-6, which he says are “like” the ones which caused his fall.

In order to give rise to a duty of Fesco towards English, English would have to be able to prove by a preponderance of the evidence, that is, that it is more likely than not, that Fesco manufactured the bracket being used when he fell. Fesco has shown that plaintiff cannot do that, and its own evidence establishes without legally cognizable contrary evidence that it did not.

Summary judgment for Fesco should be affirmed.


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A89A1066.
    RELIFORD v. THE STATE.
    (388 SE2d 21)
   Birdsong, Judge.

Alvin Reliford appeals from a judgment and sentence of probation, as a first offender, arising out of his guilty plea to the felony charge of obstructing an officer. Originally he was charged with possession of cocaine, obstruction of an officer, and aggravated assault. However, the grand jury returned a no bill for all offenses except “Obstruction of an Officer (Felony).” He enumerates four general errors below. Held:

Appellant contends on appeal that the obstruction count “failed to charge the crime [of obstructing an officer as a felony] in the proper manner.” He seems to argue that no affidavit or warrant was made charging him with a felony specifically, or describing any act which could be legally construed as a felony. This enumeration is without merit. The indictment clearly charged appellant with “OBSTRUCTION OF AN OFFICER (FELONY)” in that he “did knowingly and willfully obstruct and oppose DON DAVIS AND DENNIS MERRIMAN, law enforcement officers of the [GBI] in the lawful discharge of their official duties by offering and doing violence to the persons of such officers in that the said ALVIN RELIFORD forcibly resisted being placed in custody by such officers.”

There is, and can be, no requirement that the indictment presented by the grand jury be phrased and described in the exact language used in any warrant or supporting affidavit which was taken out for his arrest; nor is the grand jury, having found grounds to indict for a felony, limited to charging a misdemeanor in an indictment merely because some language in the warrant or supporting affidavit would arguably have supported a misdemeanor charge. See Oglesby v. State, 121 Ga. 602 (49 SE 706); Rank v. State, 179 Ga. App. 28 (1) (345 SE2d 75).

Further, no objection or demurrer was made to the language of the indictment on this basis. Appellant’s plea of guilty waived all defenses to the indictment. See Williams v. Caldwell, 229 Ga. 453 (2) (192 SE2d 378).

As for appellant’s apparent argument that this charge remained in the jurisdiction of the magistrate’s court as a misdemeanor because the original arrest warrant issued from that bench, appellant offers no authority except vague reference to cases wherein the defendant was actually prosecuted on a lesser charge in a lower court. See, e.g., Herrera v. State, 175 Ga. App. 740 (334 SE2d 339). The criminal warrant for arrest was not a prosecution in the magistrate’s court; following the felony indictment, the case was lodged in superior court, where appellant waived arraignment and made other pertinent motions. The record does not support any indication that there was ever a prosecution in a lower court.

The plea of guilty is not asserted to be involuntary, and it cannot be contended by appellant that he thought he was pleading to a misdemeanor, for the indictment and the record clearly show he was apprised and advised, and he understood, that he was charged with, and was pleading guilty to, a felony. As for the suggestion that the trial court somehow erred in its sentence, the sentence given was within statutory limits, and therefore is a legal sentence. See Allen v. State, 258 Ga. 424 (369 SE2d 909); Luke v. State, 178 Ga. App. 614 (1) (344 SE2d 452). Finally, there is no logic in appellant’s allegation that no prosecution for obstructing an officer could be maintained because a no bill was returned for the charge of aggravated assault on an officer, nor is there any inconsistency in the prosecution for obstructing based merely on the fact that the assault charge was dropped. See Milam v. State, 255 Ga. 560 (2) (341 SE2d 216).

Judgment affirmed.

Deen, P. J., and Benham, J., concur.

Decided November 1, 1989.

Charles E. Price, for appellant.

John R. Parks, District Attorney, for appellee.


author: Benham, Judge. Deen, Presiding Judge,

text:
    A89A1141.
    SMITH v. THE STATE.
    (387 SE2d 648)
   Benham, Judge.

Convicted of selling cocaine, appellant was sentenced to life imprisonment under the provision of OCGA § 16-13-30 (d) requiring such a sentence for a second or subsequent offense. The prior offense used against appellant in sentencing was a 1971 conviction for selling heroin. Appellant contends on appeal that his sentence was illegal because subsection (d) authorizes a life sentence only for a second violation of the Georgia Controlled Substances Act, which was not in effect in 1971. We agree.

In Taylor v. State, 186 Ga. App. 113 (3) (366 SE2d 422) (1988), this court held that “it is only when appellant is convicted a second time for a violation of OCGA § 16-13-30 (b) that a sentence to life imprisonment is authorized.” The Georgia Controlled Substances Act, now codified as OCGA Ch. 16-13, was first enacted in 1974 (Ga. L. 1974, p. 221 et seq.), after appellant’s conviction for selling heroin. He has not, therefore, been convicted of two violations of the Act, and the life sentence was not authorized.

The State’s argument that the life sentence was authorized because the sale of heroin was illegal in 1971 misses the mark. If the legislature had intended to include convictions for crimes which would have been violations of the Act had they been committed after the effective date of the Act, it could have said so, just as it included in OCGA § 40-5-58 (a) (1) offenses under federal law or the law of other states “substantially conforming” to the Georgia offenses warranting designation as a habitual violator. The legislature did not do so. Appellant’s sentence was not authorized by law, so we are bound to reverse it and to remand this case to the trial court for resentencing.

Judgment of conviction affirmed, sentence reversed, and case remanded for resentencing.

Birdsong, J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

Were it not for the whole court case of Taylor v. State, 186 Ga. App. 113 (3) (366 SE2d 422) (1988), I would conclude that the proclaimed pronounced punishment was intended for repeated sale of specific enumerated drugs without any regard given to the transgression of the peculiar and particular statutory acts involved. However, since the whole court has spoken, I must yield to the majority.

Decided November 1, 1989.

Cowen & Cowen, Linda S. Cowen, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.


text:
    A89A1202.
    WITHERS v. THE STATE.
    (387 SE2d 647)
   Birdsong, Judge.

Edward G. Withers, Jr., appeals pro se the criminal judgment entered on October 19, 1987. Withers was indicted for trafficking in cocaine. The judgment of the court was founded upon Withers’ plea of guilty to a reduced charge of possession of cocaine in an amount less than 200 grams, for which he was sentenced to 10 years in prison and to pay $100,000 in fine, with a recommendation and finding of probation for possession of a weapon during commission of a felony instead of the statutory consecutive prison sentence. Held:

Withers does not state his grounds for appeal of this conviction by plea. The transcript of the hearing on the plea shows the plea was voluntarily made by appellant, who had a college education and to whom the trial court fully explained all the rights and defenses he was waiving by his plea of guilty. Appellant also affirmed to the trial court that he was aware that “by entering a guilty plea [he was] giving up those rights [of absolute right to appeal a finding of guilt].” The transcript also shows that an undercover officer purchased approximately nine ounces of cocaine from appellant Withers for $9,500, whereupon Withers was immediately arrested and consented to a search, gave a statement, and consented in writing to a search of his residence. Appellant apparently made no attempt below and makes no attempt here to withdraw his plea; and the trial court did not err in finding the plea to be voluntary when it was made. See Clark v. State, 186 Ga. App. 106 (366 SE2d 361). Under authority of Garner v. State, 171 Ga. App. 612 (320 SE2d 618), we find no grounds for this appeal and affirm the judgment below.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.

Decided November 1, 1989.

Edward G. Withers, Jr., pro se.

Lewis R. Slaton, District Attorney, for appellee.


text:
    A89A1220.
    McCADAMS v. BANK OF LENOX.
    (387 SE2d 635)
   Birdsong, Judge.

Robert McCadams (McCadams) appeals from the grant of summary judgment to the Bank of Lenox (the bank) on its claim against him as a guarantor of a promissory note given to the bank by the Lenox Grain Company. McCadams and W. L. Danforth were guarantors of the note.

When the Lenox Grain Company defaulted on the note, the bank sued both McCadams and Danforth on their guaranties. Thereafter, with the permission of the trial court, the Lenox Grain Company was added as a defendant in the action. McCadams and the Lenox Grain Company filed an answer and counterclaim against the bank, and Danforth filed a separate answer and counterclaim.

The bank moved for summary judgment against all defendants, and supported its motion with affidavits. Subsequently, Danforth filed for bankruptcy, petitioned for a stay in this case, and then was dismissed as a defendant. Thereafter, Danforth and the Lenox Grain Company dismissed their counterclaims against the bank. Later the Lenox Grain Company also filed for bankruptcy and obtained a stay of the proceedings in this case.

McCadams subsequently moved to dismiss the complaint against him or to transfer the case to the county of his domicile. This motion was denied, and the trial court granted summary judgment to the bank. McCadams now appeals asserting that the trial court was not authorized to grant summary judgment against him, a non-resident defendant, because the proceedings in the trial court were stayed against the remaining resident defendant. Held:

McCadams bases his appeal on our decision in Timberlake Grocery Co. v. Cartwright, 146 Ga. App. 746, 747 (247 SE2d 567). In Timberlake, this court held that when resident defendants are discharged in bankruptcy and dismissed from the case because of the discharge, “if no judgment is taken against a resident defendant, the court loses venue as to the nonresident defendants] unless the issue of venue is waived.”

The operative facts in Timberlake were not that the resident defendants were discharged in bankruptcy, but that they had been dismissed from the case, no judgment taken against them, and they were found not liable before judgment was granted against the nonresident defendant. In the instant appeal the record does not reflect that the Lenox Grain Company has been dismissed from the action or that there had been any determination that it was not liable in the action when the summary judgment was granted against McCadams. Accordingly, when summary judgment was granted against McCadams, the resident defendant was still potentially liable in the action and still potentially subject to judgment being rendered against it. Under these facts, the trial court had jurisdiction or venue to grant summary judgment against McCadams. See Lansky v. Goldstein, 136 Ga. App. 607, 608 (222 SE2d 62).

Decided November 1, 1989.

Hurt, Pfeiffer & Hyman, James W. Hurt, for appellant.

Thomas & McClain, Tom W. Thomas, for appellee.

Judgment affirmed.

Been, P. J., and Benham, J., concur.


text:
    A89A1255.
    FOSTER v. THE STATE.
    (387 SE2d 637)
   Birdsong, Judge.

Joseph Leon Foster appeals from his convictions of two counts of forgery in the first degree. He was sentenced to a ten-year prison term on each count with the sentences to run concurrently. Based upon earlier guilty pleas for financial transaction card theft (6 counts) and forgery in the first degree (3 counts), Foster was also sentenced as a habitual offender.

Appellant bases his appeal on the sufficiency of the State’s proof. He alleges error in that the trial court denied his motions for directed verdict of acquittal because the State failed to prove the necessary elements of intent to defraud (enumeration 1) and guilty knowledge (enumeration 2); that the State’s evidence was insufficient to justify a guilty verdict (enumeration 3); and that the State failed to prove the necessary elements of uttering and delivering (enumeration 4). Held:

1. The State’s evidence established that there was a burglary in which a checkbook belonging to Mary J. Harris d/b/a The Report Department for a Citizens & Southern National Bank (C & S Bank) checking account and a check encoder machine were stolen. Two of the checks from that checkbook were cashed at the C & S Bank Riverdale branch office in Clayton County by an Angela Foxworth. Mary J. Harris testified that she was the only one authorized to sign checks on the account, and she did not sign either check cashed. A handwriting examiner testified the same person endorsed both checks.

The bank teller who cashed the checks testified that the same man and woman cashed both checks at her drive-up window and each time they were in the same car. She also testified that each time they cashed a check she wrote the license tag number of the car they were in on the back of the check. This car was later determined to be registered to appellant’s mother. The teller testified that both times the checks and the driver’s license used to identify Angela Foxworth were passed to her by the man driving, and that the man received the money from her. She later identified appellant as this man both in a photo line-up and in court.

An investigator for the C & S Bank testified that he interviewed appellant and appellant admitted that one time he drove the car and helped a girl cash a check, but he denied doing so the second time. Appellant also admitted that he saw the checks before when a man showed them to him, but appellant said he pushed the checks away and had nothing else to do with them.

Although couched in part as an attack on the trial court’s denial of his motions for directed verdict of acquittal, appellant’s appeal is a general attack on the sufficiency of the State’s proof. Accordingly, we will first consider that issue.

One “commits the offense of forgery in the first degree when with intent to defraud he knowingly makes, alters, or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority and utters or delivers such writing.” OCGA § 16-9-1 (a). The jury was properly charged on the elements of forgery, the burden upon the prosecution to prove the essential elements of the crime, including the necessary intention to defraud and knowledge, and that the elements could be shown by direct or circumstantial evidence. Further, the trial judge also charged the jury that appellant might be convicted not only as one who committed the crimes charged directly, but as one who aided or abetted another in the commission of the crimes, or as one who advised, encouraged, hired, counseled, or procured another to commit the crime.

On appeal we are required to view the evidence in the light most favorable to the verdict. Watts v. State, 186 Ga. App. 358 (366 SE2d 849). Further, our function is not to weigh the evidence, but to determine if the evidence is sufficient that a reasonable trier of fact could have rationally found proof of guilt beyond a reasonable doubt. Jamison v. State, 162 Ga. App. 635 (292 SE2d 515).

“To sustain the judgment of conviction, the evidence need not exclude every inference or hypothesis except guilt of the accused, but only reasonable inferences or hypotheses, so as to justify the inference, beyond reasonable doubt, of guilt. [Cit.] Questions as to reasonableness generally are to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilt is unsupportable as a matter of law. [Cits.]” Pratt v. State, 180 Ga. App. 389, 390 (348 SE2d 922).

In this case the State’s evidence established that on two occasions, days apart, appellant assisted a female in cashing checks, endorsed by the same person, by driving the female to the bank in his mother’s car, giving the checks and the driver’s license of Angela Foxworth, the payee and endorser of the check, to the teller, and receiving from the teller the cash from the check. The evidence also showed that appellant told an investigator that he had only done this once, and told the investigator that he saw the checks in the possession of an unidentified man, but refused to have anything to do with the checks.

Criminal intent and knowledge are factual issues which can seldom be proved by direct evidence. See OCGA § 16-2-6 and Johnson v. State, 158 Ga. App. 183 (279 SE2d 483). We are satisfied, however, from all the circumstances of this case, including the contradiction between appellant’s statement to the investigator and the testimony of the teller regarding appellant’s participation in cashing the check the second time and appellant’s statement that he refused the checks when he was offered them by some man, that the State’s evidence was sufficient to authorize a rational trier of fact to determine beyond a reasonable doubt that appellant had committed forgery in the first degree, including the necessary elements of intent to defraud and knowledge. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Carruth v. State, 183 Ga. App. 203, 204 (358 SE2d 610). Accordingly, appellant’s third and fourth enumerations of error are without merit.

2. “ ‘ “The statutory standard for application by a trial court to decide a motion for a directed verdict of acquittal is ‘(w)here there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal’ ...” the court may so direct a verdict. [Cits.] It is not error to refuse to direct a verdict when, “viewing, the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Cits.]’ [Cits.]” Gaily v. State, 181 Ga. App. 906, 907 (354 SE2d 442). Therefore, considering the evidence in this case and the inferences which might be drawn therefrom, it was not error to deny appellant’s motions for directed verdict of acquittal, and his first and second enumeration of error are also without merit.

Decided November 1, 1989.

Bobby E. Farmer, for appellant.

Robert E. Keller, District Attorney, Daniel Cahill, Assistant District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


author: Benham, Judge.

text:
    A89A1269.
    WILSON v. WILLIAMS BROS., INC.
    (387 SE2d 639)
   Benham, Judge.

This appeal is from the trial court’s grant of a motion to set aside a judgment that had been entered after an earlier motion to set aside had been granted.

Williams Bros, filed suit against appellant and two others who were allegedly doing business together, seeking payment for building materials delivered for the threesome’s business. Appellant’s co-defendants filed a cross-claim against appellant, alleging that he incurred the debt and received the benefits thereof, and prayed that they be awarded a judgment against appellant “in an amount equal to any judgment that may be rendered against them in favor of [Williams Bros.].” On September 22, 1987, Williams Bros, dismissed with prejudice its action against appellant and his two business associates. On September 23,1987, the trial court entered a judgment in which it noted that appellant had failed to appear and that the two associates had agreed to pay Williams Bros. $9,500 in settlement of the amount owed. The cross-claimants then moved for and were granted a directed verdict in the amount of $9,500 against appellant. Ten months later, appellant moved to set aside the judgment awarded his two associates against him on the ground that they had prayed for a judgment against appellant in an amount equal to any judgment rendered against them in favor of Williams Bros., and that no judgment had been rendered against the associates in favor of Williams Bros, since the parties had settled and the case had been dismissed with prejudice. The trial court granted appellant’s motion to set aside in October 1988, which judgment was itself set aside by the trial court on January 23, 1989, after a hearing in which it was unrebutted that the cross-claimants had orally amended their pleadings to request a judgment against appellant that was not dependent upon any judgment rendered against the cross-claimants. The trial court found that the pleadings had been amended and, based upon those pleadings, set aside its October 1988 judgment which had set aside the September 1987 judgment against appellant, and reinstated the judgment of September 1987. Appellant filed a timely notice of appeal from the order granting the cross-claimants’ motion to set aside and reinstating the original judgment rendered against him in favor of the cross-claimants.

Decided November 1, 1989.

McAllister & Roberts, J. Bunham McAllister, for appellant.

Emory B. Bazemore, for appellee.

Appellant contends that the oral amendment to the cross-claim was without effect because the lawsuit had been dismissed with prejudice the day before the amendment was made. However, it was the cross-claim that was orally amended and Williams Bros.’ complaint against the three businessmen which was dismissed. “[A] [cross-claim] is not subject to dismissal simply because the main action has been dismissed. [Cit.] [W]here [it] can be adjudicated without regard to the main claim, it should be judicially considered even though the main claim has been dismissed. [Cit.]” Young v. Jones, 140 Ga. App. 66, 67 (230 SE2d 32) (1976). Thus, the cross-claim remained in existence even though the main claim had been dismissed with prejudice. The trial court did not err when it granted the cross-claimants’ motion to set aside the judgment.

Judgment affirmed.

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


author: Pope, Judge.

text:
    A89A1324.
    MYERS v. THE STATE.
    (387 SE2d 640)
   Pope, Judge.

Defendant Evin Myers and two others were indicted on a charge of trafficking in cocaine. One of the co-defendants, Evin Myers’ mother, pled guilty. Myers was tried and convicted and the remaining co-defendant was found not guilty. Myers appeals on the general grounds and argues the evidence was insufficient for a jury to find him guilty beyond a reasonable doubt.

The evidence shows a drug “bust” was conducted pursuant to a search warrant on the apartment in which Myers, then seventeen years old, lived with his mother. Inside the apartment the arresting officers found $1,912 in bills scattered around the kitchen, a handgun on the table and 33 clear plastic bags on the refrigerator. A package containing 322 bags of cocaine was found on the ground outside the kitchen window from which one of the co-defendants was trying to escape. A bag of marijuana was found in one of the bedrooms in a dresser drawer along with a prescription bottle bearing Myers’ name. Myers admitted to one of the officers that he had lived in the apartment for one year. The arresting officer was not presented as a witness. However, the evidence did establish that Myers was arrested outside the apartment immediately after a team of officers entered the front door and, upon entry, heard footsteps running down the back staircase. Thus, circumstantial evidence was presented to establish that Myers attempted to flee the apartment after the search commenced.

“ ‘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.’ [OCGA § 24-4-6.] . . . Should a trial court decline to direct the verdict and the jury then finds the defendant guilty, we are obliged to review the evidence in a light most favorable to the jury verdict. [Cit.] However, we will not be blinded by the jury verdict when a reasonable hypothesis of innocence appears from the evidence or the lack thereof. [Cits.]” Muckle v. State, 165 Ga. App. 873 (1) (303 SE2d 54) (1983).

No evidence was presented that contraband, money or other incriminating evidence was found on defendant’s person when he was arrested. The fact that marijuana was found in a dresser drawer apparently belonging to the defendant is not probative of whether defendant was a party to the knowing possession of over 28 grams of cocaine found in another room of the apartment in which he lived. The only evidence presented at trial in regard to defendant Myers was that he, a seventeen-year-old minor, lived in his mother’s apartment where the contraband was found and circumstantial evidence that he fled the apartment when armed officers broke down the front door. “ ‘Neither presence nor flight, nor both together, without more, is conclusive of guilt.’ ” (Quoting Griffin v. State, 2 Ga. App. 534 (2) (58 SE 781) (1907)). Poythress v. State, 67 Ga. App. 324, 325 (20 SE2d 212) (1942). Accord Denham v. State, 144 Ga. App. 373 (1) (241 SE2d 295) (1977). Flight together with a connection between the defendant and others committing a crime is also insufficient to form the basis of a conviction. Hodges v. State, 103 Ga. App. 284 (118 SE2d 858) (1961).

The evidence presented at trial simply established that defendant lived at home with his mother, as do most seventeen-year-olds. No evidence was presented that defendant participated in any activity associated with trafficking in cocaine. The raid took place at 10:00 p.m. The neighborhood was acknowledged by one police witness to be one known for drugs and drug-related problems. Violence is a common problem in such areas. When one’s home is invaded at night, flight is a reasonable response and is not necessarily indicative of guilt. Thus, the evidence is equally consistent with defendant’s innocence. To allow appellant’s conviction to stand upon this evidence would be tantamount to requiring minors to choose between living at home with parents and leaving home to fend for themselves to avoid prosecution for the misdeeds of the parents. We cannot conclude that sufficient evidence was presented in this case to permit a rational trier of fact to find defendant guilty beyond a reasonable doubt.

Decided November 1, 1989.

A. Nevell Owens, for appellant.

Lewis R. Slaton, District Attorney, Richard E. Hicks, Samuel W. Lengen, Joseph J. Drolet, Assistant District Attorneys, for appellee.

Judgment reversed.

Banke, P. J., and Sognier, J., concur.


author: Deen, Presiding Judge.

text:
    A89A1622.
    WILSON v. THE STATE.
    (387 SE2d 642)
   Deen, Presiding Judge.

Cedric Wilson brings this appeal following his conviction of aggravated assault, asserting as his sole error the trial court’s ruling which denied his amended motion for a new trial. He contends that the court should have ordered a psychological evaluation based on medical records submitted in conjunction with the motion to ascertain either his medical condition at the time of the offense, or his mental condition at the time of trial; and that if he has a mental illness he should not be held accountable for not disclosing this information to counsel prior to trial. Held:

OCGA § 5-5-23 provides for the grant of a new trial when the newly discovered evidence is “not merely cumulative or impeaching in its character but relating to new and material facts, is discovered by the applicant after the rendition of a verdict against him and is brought to the notice of the court within the time allowed by law for entertaining a motion for a new trial.”

The evidence which appellant’s counsel claims to be newly discovered is records of appellant’s psychiatric problems which occurred some six years prior to the incident in question. There was no contention prior to or during trial that appellant was mentally incompetent either at the time the assault was committed or at the time of his trial. There is nothing in the trial transcript to demonstrate such an assertion. No attempt was made prior to trial by his attorney to determine his psychiatric history, and there was no showing in his motion that this newly discovered evidence was not available through the exercise of ordinary diligence. See Timberlake v. State, 246 Ga. 488, 491 (271 SE2d 792) (1980); Downs v. State, 141 Ga. App. 173, 174 (233 SE2d 32) (1977).

Decided November 1, 1989.

P. Dewey Gill, for appellant.

Willis B. Sparks III, District Attorney, Graham A. Thorpe, Howard Sims, Assistant District Attorneys, for appellee.

The grant or denial of a new trial based on newly discovered evidence is a decision within the sound discretion of the trial court. Its ruling will not be disturbed absent an abuse of that discretion. Long v. State, 237 Ga. 110, 111 (227 SE2d 22) (1976). We find no abuse present in this case.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A1632.
    MARTIS v. THE STATE.
    (387 SE2d 643)
   Deen, Presiding Judge.

Bartow County law enforcement officers, acting on information, obtained a search warrant for the premises occupied by appellant Martis and, on the basis of evidence seized during a search, arrested Martis for violation of the Georgia Controlled Substances Act. A jury found him guilty on two felony counts, and he appeals his convictions and sentences. Held:

1. In his first three enumerations of error appellant asserts the general grounds: the verdict was contrary to law, the verdict was contrary to the evidence, and the verdict was strongly against the weight of the evidence. Our examination of the record reveals no error of law in the proceedings below. As to the evidence, the appellate court determines only its sufficiency, and not its weight. Webb v. State, 187 Ga. App. 348 (370 SE2d 204) (1988). In the instant case the search of the premises pursuant to the search warrant yielded the previously photocopied currency (found on appellant’s person) and a large quantity of other currency, plastic bags containing marijuana (hidden in two places in the yard), plastic bags containing methamphetamine (hidden in the doghouse), several items of drug apparatus, and lists and other documentation pertaining to retail sales.

Additionally, evidence was adduced showing that appellant had lived on the subject premises for one month prior to the search, had been in sole possession and control of the premises for several days prior to the search, had admitted ownership of a note pad (found beside the telephone during the search) containing memoranda of drug transactions, and had also admitted that his absent roommate/landlord had never possessed any controlled substance on the premises. It was also established that the premises were in an isolated location and that there were no trails or pathways to and from the premises which might indicate surreptitious ingress or egress by persons other than those in possession of the premises, namely, appellant and his roommate; and that there was no affirmative evidence that a third party had entered the premises. In such circumstances the “equal access” rule does not apply. Heaton v. State, 139 Ga. App. 83 (227 SE2d 854) (1976).

Such evidence was sufficient to authorize the rational trier of fact to find appellant guilty as charged, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). These three enumerations are without merit.

2. Appellant contends that the trial court erred in denying his motion to suppress the evidence obtained during the search of the premises which appellant was occupying, inasmuch as it was the fruit of a search warrant allegedly issued without probable cause. The record shows that the warrant issued because a confidential informant had agreed to make (and made) a marijuana purchase while wearing a “body bug” transmitter and using currency that had previously been photocopied to establish the identity of the serial numbers. The search warrant was issued on the basis of information obtained from this purchase and from two other confidential informants who had observed allegedly drug-related activities at appellant’s residence within the 72 hours immediately prior to issuance of the warrant. The investigating officer, in sworn testimony, gave details as to the reliability of these two informants. The investigator further attested that he and another officer had conducted independent surveillance of appellant’s residential premises, and had used the information thus obtained as a predicate for issuance of the search warrant.

“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit. . . , including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . conclud(ing)’ that probable cause existed.” Illinois v. Gates, 462 U. S. 213, 238 (103 SC 2317, 76 LE2d 527) (1983); Rush v. State, 188 Ga. App. 520 (373 SE2d 377) (1988). We find that the magistrate in the case sub judice had before him information that constituted a “substantial basis for concluding” that there was a “fair probability” of finding contraband or other evidence on the premises described in the warrant. The trial court therefore did not err in denying the motion to suppress, and appellant’s fourth enumeration of error is also without merit.

Judgment affirmed.

Birdsong and Benham, JJ., concur.

Decided November 1, 1989.

James E. Greene, for appellant.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.


author: Banke, Presiding Judge.

text:
    A89A1984.
    CLAY v. THE STATE.
    (387 SE2d 644)
   Banke, Presiding Judge.

The appellant was charged with two counts of driving under the influence of alcohol. See generally OCGA § 40-6-391 (a). Count 1 alleged simply that he had, on a specified date and at a specified location, operated a motor vehicle “under the influence of alcohol, contrary to the laws of [this] state . . . .” Count 2 alleged that he had, on the same date and at the same location, operated a motor vehicle with “0.12 percent or more by weight of alcohol in his blood. ...” A jury acquitted him on the latter charge but found him guilty on the former. This appeal followed.

Two sheriff’s deputies were dispatched to the appellant’s residence at around noon on the date alleged in the accusation in response to a telephone report that a family disturbance was in progress there. While en route, they observed the appellant pass them going in the opposite direction, and they turned around to follow him. Seeing that he had pulled his vehicle into the parking lot of a food store, they entered the store and found him inside paying for a cup of coffee. According to the arresting officer, the appellant’s “eyes were red and glassy, and he had an odor of alcoholic beverage about his breath.” This officer asked the appellant if he had been drinking that morning, and he responded that “he hadn’t been drinking that morning, that he had been working, but that he had consumed a quantity of alcoholic beverage the night before.”

The arresting officer testified that on the basis of his “observation of [the appellant], and the different information [he was] able to gather together as [he] talked to him . . . ,” he formed the opinion that the appellant was “less safe to operate that vehicle . . . as a result of being under the influence of alcohol” and that he accordingly arrested him for DUI. However, the officer further testified that the appellant’s speech was not slurred, that he was not staggering, that there was nothing unusual or erratic about the way he had been driving and that no field sobriety tests were administered to him.

Following his arrest, the appellant was taken to the sheriff’s office, where a breath test was administered to him on an Intoximeter 3000 breathalyzer machine to determine his blood-alcohol concentration. The machine returned a reading of .18 grams; however, the appellant presented expert testimony to the effect that this reading was unreliable because it was based on the assumption that each subject’s “blood-air ratio” was 1 to 2100, whereas the appellant’s blood-air ratio, as determined by infrared analysis, was “considerably under . . . 2100 to 1, which means that he will continually read too high on these Intoximeter 3000 machines.” The expert further testified that false readings could be generated on the machine if a subject’s skin or clothing had been exposed to hydrocarbons prior to a test; and it was established without dispute that during the morning prior to his arrest the appellant had been spreading roofing tar with his hands in connection with his work as a roofer and that he had used gasoline to thin this tar as well as to clean it from his skin.

Various co-workers and members of the appellant’s family testified that they had been with him at different times during the morning prior to his arrest and that they had not seen him consume any alcoholic beverages or exhibit any signs of intoxication during that period. In addition, several of these witnesses testified that the appellant’s eyes appeared bloodshot all the time, and the arresting officer conceded during the trial that the appellant’s eyes appeared “somewhat” red even as he sat in the courtroom. Held:

1. The appellant initially contends that the offense of driving under the influence of alcohol no longer exists, having been effectively repealed by Ga. L. 1988, p. 1893, § 2, which added the following italicized language to OCGA § 40-6-391 (b): “The fact that any person charged with violating this Code section is or has been legally entitled to use a drug shall not constitute a defense against any charge of violating this Code section; provided, however, that such person shall not be in violation of this Code section unless such person is rendered incapable of driving safely as a result of using a drug other than alcohol which such person is legally entitled to use.” (Emphasis supplied.)

An identical contention was made and rejected in Proo v. State, 192 Ga. App. 169 (384 SE2d 197) (1989). For the reasons stated in that opinion, we find this enumeration of error to be without merit.

2. The appellant contends that there was insufficient evidence to support a DUI conviction under OCGA § 40-6-391 (a) (1) because there was no evidence from which a rational trier of fact could have concluded beyond a reasonable doubt that he was under the influence of alcohol to the extent that he was a “less safe” driver. We agree. In finding the appellant not guilty on the charge of driving with a blood-alcohol concentration of 0.12 grams or more (see OCGA § 40-6-391 (a) (4)), the jury clearly rejected the results of his intoximeter test as being unreliable, based on the testimony of his expert. While the state concedes that the jury could not have accepted the intoximeter reading of .18 at face value, it contends that they might nevertheless have inferred from this evidence that his blood-alcohol concentration was .10 or .11, so as to warrant a presumption pursuant to OCGA § 40-6-392 (b) (3) that he was “under the influence of alcohol, as prohibited by [OCGA § 40-6-391 (a) (1)].” However, no evidentiary basis was offered by which the jury could have adjusted the test results in this manner.

Decided November 1, 1989.

Bentley C. Adams, III, for appellant.

Nor was any other evidence offered from which the jury could have inferred that the appellant was under the influence of alcohol to the extent that he was a less safe driver. As previously indicated, the arresting office testified unequivocally that the appellant’s speech was not slurred, that he was not staggering, and that there was nothing unusual or erratic about his driving. Rather, the sole evidentiary basis offered by the officer for his opinion that the appellant was “less safe to operate that vehicle” consisted of his observations that the appellant’s “eyes were red and glassy, and he had an odor of alcoholic beverage about his breath.” However, it was established without dispute through the testimony of other witnesses that the appellant’s eyes normally appeared red and bloodshot, and the mere fact that he had an odor of alcohol on his breath clearly was not sufficient, in and of itself, to give rise to an inference that he was intoxicated. Indeed, the state’s attorney conceded as much during the trial, stating, “Certainly the smell of alcohol by itself is not an indication of intoxication, but it can be an indication that somebody has been drinking . . . .” Under the circumstances, we must conclude that the officer’s opinion that the appellant was under the influence of alcohol to the extent that it was less safe for him to drive was without evidentiary foundation. Compare, e.g., Potts v. State, 191 Ga. App. 75 (381 SE2d 99) (1989) (where the defendant’s speech was slurred, he was staggering to the point where he could barely stand up, and he failed two field sobriety tests); Mortimer v. State, 177 Ga. App. 679 (3) (340 SE2d 649) (1986) (where the defendant was similarly unsteady on his feet and similarly failed multiple field sobriety tests); Collins v. State, 177 Ga. App. 758 (2) (341 SE2d 288) (1986) (where, in addition to smelling “strongly” of alcohol and being glassy eyed, the defendant was doing 83 mph in a 55 mph zone). We accordingly hold that the evidence was insufficient to support a conviction under OCGA § 40-6-391 (a) (1). Accord Mulling v. State, 156 Ga. App. 404 (1) (274 SE2d 770) (1980).

Judgment reversed.

Sognier and Pope, JJ., concur.

W. Fletcher Sams, District Attorney, for appellee.


text:
    A89A1417.
    BEAUBRUM v. THE STATE.
    (387 SE2d 649)
   Birdsong, Judge.

Locita Beaubrum appeals her conviction for trafficking in cocaine. She was sentenced to 25 years to serve and a fine of $500,000, and she now asserts that the trial court erred by denying her motion to suppress because she contends the evidence was obtained by illegal search and seizure. She alleges that she was arrested without probable cause, her seizure was not supported by reasonable suspicion or specific and articulable facts justifying the intrusion to her privacy, and that the search of her person was unlawful regardless whether her consent was obtained. Held:

At the hearing on appellant’s motion to suppress, the only evidence presented was the testimony of Atlanta Police Officer Vicki Prattis. Officer Prattis testified that she was detailed to the Drug Enforcement Agency Task Force at the Hartsfield International Airport in Atlanta and, since Miami is a known drug source city, was watching passengers deplane from a flight which had recently arrived from Miami.

She noticed appellant because it was mid-May and warm, but appellant wore a denim jumper and a large wool plaid jacket. Appellant carried only a small tote bag. Prattis noticed that appellant kept pulling her jacket together and appeared to be trying to conceal something. Prattis also testified that she had experience with people who wore large or oversized clothing to conceal cocaine on their bodies. Because of this, she decided to interview appellant.

As she followed appellant, Prattis noticed that appellant and another passenger appeared to be making eye contact while trying to convey the appearance that they were not traveling together. She testified that this is also something that people do who are carrying drugs. With all this information, Prattis approached appellant, showed her badge and credentials, identified herself as a police officer, and asked if she could “speak with you a minute, please?” At this time, Prattis was dressed in casual clothes and was not showing her weapon.

Appellant agreed and Prattis asked to see her plane ticket. Appellant gave her the ticket and Prattis noted that it was a round trip ticket from Miami to Atlanta with the return five days later. The ticket showed that it had been paid for with cash, and there were no baggage claim checks attached or any indication that claim checks had been attached. Prattis asked for appellant’s name and she gave the name shown on the ticket. During this process, appellant appeared nervous, her voice cracking and her upper chest quivering.

Prattis returned the ticket and asked for identification. Appellant presented a tattered baptismal certificate which stated the name by which appellant had identified herself and which was on the plane ticket. Prattis, however, was not satisfied with this identification and asked appellant if she had any identification showing her photograph, but appellant said she did not.

Then Prattis advised appellant that she was a narcotics agent at the airport looking for drugs and drug proceeds. “And, I advised her that if she had some sort of picture identification or a credit card or something like that, there probably wouldn’t be any problem but I asked her if she would like to cooperate with me for just a few moments and allow me to search her and her bag.” Appellant replied, “search my bag, I don’t have anything in there.” After searching the bag and finding nothing of significance, Prattis asked, “now, do you mind if I pat you down.” According to Prattis, appellant looked astonished and got even more nervous. Prattis told her, “well, like I said, we look for drugs coming through the airport, would you have a problem with me patting you down?” Appellant responded, “no, it’s ok.”

Prattis then patted her down and felt something under appellant’s clothing which her experience suggested usually turned out to be cocaine. She then arrested appellant and took her to an office where she was searched. Two packets, which later tested positive as cocaine, were removed from under appellant’s clothing.

Prattis testified that she first approached appellant in a public area, talked to her in a normal voice, did not touch appellant until she patted her down, and did not use threats, coercion or offer any hope of reward. She testified that appellant never attempted to leave.

Appellant did not testify at the hearing or present any evidence showing that she attempted to terminate the conversation or that she wanted to walk away. Further, she offered no evidence that contradicted Prattis’ testimony.

Appellant argues that the procedures used by Prattis are inherently coercive and that there is no difference between this approach and being pulled over by the flashing blue lights of a patrol car. Thus, she argues that Prattis’ testimony that she advised appellant that if she had any photo-identification there probably would not be a problem and then asked for appellant’s consent to search, constituted a seizure of appellant at that time. She further argues that under the circumstances there was no objective reason for appellant to believe that she was free to walk away or end her conversation with Prattis. She contends, therefore, that she was seized before she consented to the search of her bag or her person, and that in any case her consent at the hearing on the suppression motion “ ‘disclose a valid police-citizen encounter ....’” Miller v. State, 183 Ga. App. 55, 56 (357 SE2d 876). Thereafter, appellant consented to talk with Prattis and subsequently consented to the search of her bag and her person. Review of the transcript of the hearing shows no indication that appellant at any time expressed any desire to end the interview with Prattis or to object to the search. Under the circumstances, appellant was not seized until she was arrested. Santone v. State, 187 Ga. App. 789, 791 (371 SE2d 428); Verhoeff v. State, 184 Ga. App. 501, 503 (362 SE2d 85).

Decided November 2, 1989.

John A. Beall, IV, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticher, Todd E. Naugle, Assistant District Attorneys, for appellee.

Moreover, we do not find persuasive appellant’s argument regarding Prattis’ comment that “there probably wouldn’t be any problem” if appellant would produce identification showing her photograph. This comment was followed by a request for her to cooperate and a request for permission to search. “Given these facts, it appears that defendant had no objective reason to believe that [she] was not free to end the conversation ... and proceed on [her] way.” Verhoeff v. State, supra at 504.

Accordingly, there was no error in the trial court’s denial of appellant’s motion to suppress, and, thus her enumeration of error is without merit.

Judgment affirmed.

Been, P. J., and Benham, J., concur.


text:
    A89A1642.
    In the Interest of K. E. B., a child.
    (388 SE2d 1)
   Banke, Presiding Judge.

This is the second appearance of this parental rights termination case before this court. In In the Interest of K. E. B., 190 Ga. App. 121 (378 SE2d 171) (1989), we vacated a prior judgment entered by the juvenile court terminating the appellants’ parental rights in their minor child and remanded the case “for consideration of alternative dispositions.” Id. at 126. We did so based on a conclusion that, although there was clear and convincing evidence that the child was deprived and that the parents were presently unfit to care for her, there was less than clear and convincing evidence “that the parental unfitness which caused K. E. B.’s deprivation ‘will not likely be remedied.’ ” Id. at 125. On remand, however, the trial court did not make an alternative disposition but again entered an order terminating the appellants’ parental rights, based on a determination that two depositions on which it had relied in entering its prior judgment had inadvertently, through no fault of the parties, been omitted from the record transmitted to this court in the prior appeal.

The evidence in this case, with the exception of the testimony in the two depositions referred to above, has been summarized in this court’s prior decision. In brief, it was shown that the mother has physically abused the child in the past and that the father, who still lives with the mother and has manifested no intention of making alternate living arrangements, suffers from a physical disability which renders him incapable of intervening to protect the child from such abuse. The depositions which were omitted from the record in the prior appeal consist of opinion testimony from two psychologists to the effect that the likelihood of the mother’s being able to change her abusive behavior patterns, even with long term psychotherapy or counseling, is remote. On the basis of that testimony, the court reiterated its prior conclusions that there was clear and convincing evidence that the child is a “deprived child,” as that term is defined in OCGA § 15-11-2; that the cause of the child’s deprivation is lack of proper parental care or control; that such lack of proper parental care or control is likely to continue and will not likely be remedied; and that such continued deprivation will cause or is likely to cause serious physical, mental and emotional harm to the child. See generally OCGA § 15-11-81 (b) (4) (A). Accordingly, the court again entered an order terminating the appellants’ parental rights in the child. Held:

We agree with the appellee that the testimony contained in the two depositions which the clerk of the lower court inadvertently failed to transmit to this court in connection with the initial appeal of this case is sufficient to remedy the evidentiary deficiency on which our prior decision was based. While we emphasize that a trial court is normally obliged to abide by rulings of this court and the Supreme Court without regard to considerations such as whether those rulings are based upon a complete record, see generally OCGA § 9-11-60 (h), we are unwilling in the present case to sacrifice the potential well-being of the appellants’ child upon the altar of that principle. Accordingly, having now been presented with clear and convincing evidence to support the juvenile court’s determination that the parental unfitness which caused the child’s deprivation will not likely be remedied, we affirm that court’s most recent judgment terminating the appellants’ parental rights.

Judgment affirmed.

Sognier and Pope, JJ., concur.

Decided September 28, 1989

Rehearings denied October 17, 1989 and November 1, 1989

Winslow H. Verdery, for appellant.

McClure, Ramsey & Dickerson, Martha B. Sikes, Michael J. Bowers, Attorney General, Carol A. Cosgrove, William C. Joy, Senior Assistant Attorneys General, for appellee.


text:
    A89A1612.
    POPE v. THE STATE.
    (388 SE2d 25)
    Decided November 2, 1989.
   Deen, Presiding Judge.

The appellant, Lisa Pope, was convicted of voluntary manslaughter. On appeal, she contends that the trial court erred in failing to give her requested jury charge on self-defense.

Pope claimed that she stabbed and killed her boyfriend out of fear, because the boyfriend was drunk and angry, and whenever he was drunk he would beat her. Eyewitnesses, however, testified that Pope stabbed the victim while he was sitting down, neither arguing nor hurting the appellant in any way.

Pope requested that the trial court give the following jury charge: “One may react to an attack by an aggressor in repelling such attack to protect her own life and thus, she is not acting under the excitement of passion as contemplated by the voluntary manslaughter statute, but rather she is acting in self defense.” The trial court declined to give that requested charge, but did give the standard jury instructions on voluntary manslaughter and justification.

The trial court’s jury instruction on justification provided that if “the defendant really acted not in a spirit of revenge . . . and that the defendant reasonably believed that the force she, the defendant, used was necessary to prevent the commission of a forcible felony or to prevent death or great bodily injury to herself, then the killing would be justified under the law; and you should acquit the defendant.” This jury instruction adequately covered the principles set forth in the requested charge, and it was not error to fail to give the exact charge requested by the appellant. Fowler v. State, 188 Ga. App. 873 (374 SE2d 805) (1988).

Judgment affirmed.

Birdsong and Benham, JJ., concur.

Hudson & Montgomery, James E. Hudson, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.


text:
    A89A1767.
    CROWE v. THE STATE.
    (388 SE2d 24)
   Deen, Presiding Judge.

John C. Crowe appeals from his convictions of possession of cocaine with intent to distribute and possession of marijuana, contending that the trial court erred in denying his motion in limine. Crowe sought to prevent the State from introducing evidence that his wife had been charged with possession of marijuana and cocaine, and had entered a guilty plea to these offenses. Held:

The evidence showed that when police officers arrived to execute a search warrant at appellant’s trailer, he was working with some tools near an old, inoperative van. The officers entered the trailer and observed appellant’s wife packing some clothes. They executed the warrant and discovered one small bag of marijuana under a mattress and another in a box of clothes on the table. Marijuana seeds, hemostats, and a small set of scales were also found. A search of the van revealed the presence of more drug paraphernalia and seventeen small bags of marijuana inside a large trash bag under the hood of the van.

While the search was being conducted, Mrs. Crowe instructed her small son to get her pocketbook from appellant’s automobile. As the child was walking across the yard with his mother’s pocketbook, an officer noticed a bag of marijuana sticking out of it. When it was searched cocaine was discovered. Appellant informed the officers that the drugs found in his wife’s pocketbook belonged to him and not to his wife. Sandra Crowe was charged with possession of the contraband and entered a guilty plea prior to trial.

The facts and circumstances of the execution of the search warrant and appellant’s arrest were admissible as a part of the res gestae. As a general rule, all the circumstances connected with a defendant’s arrest are admissible as a part of the res gestae. Bishop v. State, 155 Ga. App. 611, 612 (271 SE2d 743) (1980); Hogsed v. State, 150 Ga. App. 872, 873 (258 SE2d 688) (1979). Any error caused by the placing of Sandra Crowe’s guilty plea into evidence was first created by appellant. His counsel asked Officer Blackwell if criminal charges had been filed against her, if she had been indicted, if she was charged with the items found in her pocketbook, if she had negotiated a guilty plea with the District Attorney’s office, and if she had been placed on probation. Counsel further elicited testimony about her guilty plea from another officer and from her husband. When a party himself induces error, he cannot be heard to complain about it on appeal. Bess v. State, 187 Ga. App. 185, 189 (369 SE2d 784) (1988); Chambley v. State, 177 Ga. App. 630 (340 SE2d 635) (1986). Accordingly, the trial court did not err in permitting a copy of Mrs. Crowe’s guilty plea to be entered into evidence.

Decided November 2, 1989.

Cook & Palmour, A. Kristina Connelly, for appellant.

Ralph Van Pelt, Jr., District Attorney, Susan Sarratt, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A2144.
    BARTON v. THE STATE.
    (387 SE2d 914)
   Deen, Presiding Judge.

Jerome Elus Barton, a/k/a Michael Hardwick, was convicted of armed robbery, kidnapping, possession of a sawed-off shotgun, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. On appeal he asserts the general grounds. Held:

The evidence showed that the four men entered Joe’s Jolly Spot in Jones, Georgia, and robbed the proprietor, Carl Pierce, at gunpoint. They then forced him to remove his clothing down to his underwear and go with them in a car. A high speed chase through three counties ensued when Pierce’s brother and two other persons pursued the kidnappers. The chase attracted the attention of a state trooper who joined in the chase. When the kidnapper’s vehicle was finally stopped, two men fled into the woods and the vehicle started off again and was eventually stopped by the trooper in Bryan County. Barton was located in the woods through the use of dogs. He was recognized by the trooper as one of the kidnappers because he was wearing a long green trench coat. The victim’s personal effects and a sawed-off shotgun were found in the automobile near where Barton had been seated. When he was arrested in the woods, Barton stated to the dog handler, “Okay. I give up. You’ve got me.”

Viewing the evidence in a light favorable to the prosecution, we find that a rational trier of fact could find that the defendant was guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Driggers v. State, 244 Ga. 160 (259 SE2d 133) (1979).

Judgment affirmed.

Birdsong and Benham, JJ., concur.

Decided November 2, 1989.

Samuel G. Oliver, for appellant.

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


text:
    A89A0888.
    DECUBAS et al. v. NORFOLK SOUTHERN CORPORATION et al.
    (388 SE2d 336)
   Benham, Judge.

Appellants brought suit for wrongful death in two counts, the first based on the Federal Employers’ Liability Act (FELA), 45 USCA § 51 et seq., and the second on negligence. A trial was held solely to decide whether the deceased was an employee of the defendant railroad, the outcome of which was to decide whether the case proceeded as an FELA action or as a wrongful death action based on Georgia law. The jury found that the deceased was an employee of General Electric, not the railroad, effectively terminating the FELA action. Appellees then successfully sought removal of the negligence action to federal court.

1. Appellees have moved to dismiss this appeal on the ground that the judgment is interlocutory because the wrongful death action remains pending. However, under OCGA § 5-6-34, a judgment is final when the case is “no longer pending in the court below. ...” Although the judgment here does not contain the finality language of OCGA § 9-11-54 (b) and is not specifically denominated as a final judgment, circumstances have made it so. “ ‘[E]ven though an order does not specify that it is a grant of final judgment, it nevertheless constitutes a final judgment within the meaning of OCGA § 5-6-34 (a) (1) where it leaves no issues remaining to be resolved, constitutes the court’s final ruling on the merits of the action, and leaves the parties with no further recourse in the trial court.’ [Cit.]” Vurgess v. State of Ga., 187 Ga. App. 700 (1) (371 SE2d 191) (1988). Since the removal of the negligence action to federal court left appellants with no recourse in the trial court and left that tribunal with no issues to resolve, the adverse judgment on the FELA claim became a final judgment even though the judgment itself did not say so specifically. The motion to dismiss is denied.

2. Appellants complain that the trial court erred in limiting cross-examination of two witnesses. The two witnesses were employees of General Electric, and appellants wanted to cross-examine them about their knowledge of an agreement by which General Electric had promised to indemnify the defendant railroad for certain claims, including claims for the death of General Electric employees.

Decided October 17, 1989

Rehearing denied November 6, 1989

Taylor & Harp, J. Anderson Harp, Jefferson C. Callier, for appellants.

Blackburn, Bright, Edwards & Dodd, J. Converse Bright, Richard J. Joseph, for appellees.

“[E]mployment may give rise to such an interest in the case as would bias a witness. . . .” Central &c. R. Co. v. Bernstein, 113 Ga. 175 (6) (38 SE 394) (1901). The proffer made by appellants showed that the witnesses were aware at the time they testified on behalf of the railroad defendant that their employer would be required to indemnify the railroad if appellants recovered a judgment. Under those circumstances, it was an abuse of the trial court’s discretion to refuse to permit appellants to question the witnesses regarding their possible bias. Considering the impact of the ruling on both the evidence and on closing argument (the trial court refused to permit appellants to argue the issue of possible bias because there was no evidence to support the argument), we cannot hold the error to be harmless.

3. Since appellants are entitled to a new trial, and the errors complained of in the remaining enumerations of error are not likely to recur, we need not address appellants’ remaining enumerations of error.

Judgment reversed.

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


author: Carley, Chief Judge.

text:
    A89A1067.
    PACKER et al. v. GILL et al.
    (388 SE2d 338)
   Carley, Chief Judge.

Appellee-plaintiffs brought this medical malpractice action against appellant-defendants. The case was tried before a jury and a verdict in favor of appellees was returned. Appellants appeal from the judgment entered on the jury’s verdicts and from the denial of their motion for new trial.

1. The giving of the following jury instruction is enumerated as error: “Ordinarily, unless a medical practitioner’s negligence is so blatant and obvious as to be a matter of common knowledge to any lay observer, proof of breach of duty by a physician or surgeon must rest on the testimony of an expert witness qualified to state what the particular standard of care required [is], and expert opinion that the treatment accorded to the patient did not meet such standard.”

Although the instruction states a correct principle of law, the limited “pronounced results” exception to the general requirement that medical malpractice must be shown by expert testimony was not applicable in the present case. Compare Killingsworth v. Poon, 167 Ga. App. 653 (307 SE2d 123) (1983). Appellants urge that, by merely mentioning the inapplicable “pronounced results” exception in its charge to the jury, the trial court committed reversible error. However, no authority is cited for this proposition. Although it would not have been reversible error to fail to give the “pronounced results” instruction, it does not necessarily follow that it was reversible error for the trial court to have included it in the charge.

When it is considered in isolation, the contested instruction in no way intimated that the “pronounced result” exception was applicable in the instant case. Compare Avant Trucking Co. v. Stallion, 159 Ga. App. 198, 200 (2) (283 SE2d 7) (1981). When the instruction is considered in the context of the entire charge, it is clear that the jury was otherwise fully and fairly instructed that it was the general requirement of expert testimony, rather than the limited “pronounced results” exception, which was applicable in this case. Accordingly, the trial court’s mere passing reference in its charge to the “pronounced results” exception does not require the grant of a new trial. “ ‘Though a part of the charge of the court to the jury may not be pertinent to the issues involved, if it be so clearly irrelevant to such issues that the jury could not have been misled or confused by the giving of such instruction, a new trial will not be granted upon the ground that it was error to give it. [If] [i]t was error, ... it was harmless.’ [Cit.]” Hogan v. City-County Hosp. of LaGrange, 138 Ga. App. 906, 909 (4) (227 SE2d 796) (1976).

2. The jury was instructed that it was “not required ... to accept the testimony of any witnesses, expert or otherwise.” Appellants enumerate the giving of this instruction as error.

The instruction states a correct principle of law which was applicable in this case. The jury was entirely free to reject the testimony of any of appellees’ experts, or to reject the testimony of any of appellants’ experts, or to reject the testimony of all of the experts. See generally Wilson v. Professional Ins. Corp., 151 Ga. App. 712 (261 SE2d 450) (1979). The jury was not instructed that it could reject the testimony of appellees’ experts and still find that appellants were liable for medical malpractice. Accordingly, there was no error in giving the charge. “ ‘[I]n the absence of expert testimony in behalf of the plaintiff in a malpractice case, the court is not justified in submitting the same to the jury. But, when competent expert evidence has been received, it is to be considered by the jury only as other evidence in the case.’ ” (Emphasis supplied.) Shea v. Phillips, 213 Ga. 269, 271 (2) (98 SE2d 552) (1957).

3. The trial court did not err in giving the following instruction: “A doctor must exercise the same invariable degree of care whether he practices in a small town or a large city.” See Cronic v. Pyburn, 170 Ga. App. 377, 379 (1) (317 SE2d 246) (1984). Contrary to appellants’ contentions, the record shows that the jury was subsequently charged as to the parameters of this invariable standard and was not left to speculate as to what those parameters were. “The full charge being in the record, what it lacks when divided is supplied when the parts are all united. . . . [Cits.]” Robert & Co. Assoc. v. Tigner, 180 Ga. App. 836, 841 (1) (351 SE2d 82) (1986).

4. The trial court did not err in instructing the jury that appellants could be found liable under the theory of respondeat superior for any negligence of their employees which proximately caused injury to appellees. See Mullins v. DuVall, 25 Ga. App. 690 (104 SE 513) (1920). Such an instruction was authorized by evidence that one of appellants’ employees who had taken Mr. Gill’s patient history had failed to conform to the standard of care in so doing. See generally Miller v. Atkins, 142 Ga. App. 618 (236 SE2d 838) (1977).

5. The trial court instructed the jury “that circumstantial evidence, as well as direct evidence may be used to prove negligence.” Appellants enumerate this charge as erroneous and inapplicable in a medical malpractice case, such as this, wherein expert testimony is required.

“‘[N]egligence, like any other fact, may be proved by circumstantial evidence as well as by direct testimony.’ ” Cagle v. Atchley, 127 Ga. App. 668, 675 (5) (194 SE2d 598) (1972). Although expert opinion testimony may be required in a medical malpractice case to prove the applicable standard of care and a breach thereof, we are aware of no rule which prevents circumstantial evidence from being used to prove those facts upon which the expert relies in formulating his opinion that such negligence occurred. It is for the jury to determine whether the facts upon which the expert bases his opinion do exist and, if so, whether the expert’s opinion that those facts constituted medical malpractice should be accepted. “ ‘In determining [medical malpractice], the jury may consider all the attendant facts and circumstances which may throw light on the ultimate question. [Cits.]. . . . “And where, measured by the method shown by medical witnesses to be negligence, the evidence shows a bad result, it is the province of the jury to say whether the result was caused by negligence.” ’ ” (Emphasis in original.) Word v. Henderson, 220 Ga. 846, 849 (142 SE2d 244) (1965). There was no error in giving the charge.

6. The trial court instructed the jury that appellants would be liable “if in ordinary prudence they might have foreseen that some injury would result from their acts or omissions and that consequences of a general injurious nature might result, and in fact did result from their acts.” (Emphasis supplied.) Appellants enumerate this instruction as error. The contention is that, in giving it, the trial court made an impermissible comment on the evidence by instructing the jury that an injury had “in fact” occurred in this case.

Decided October 17, 1989

Rehearing denied November 6, 1989

Terry A. Dillard, Bryant H. Bower, Jr., for appellants.

Berrien L. Sutton, Ronald W. Hallman, for appellees.

It is clear that the construction of the instruction advanced by appellants is unwarranted. The jury was not instructed that an injury had “in fact” occurred, but was merely instructed that appellants’ liability would be dependent upon whether a foreseeable injury had “in fact” resulted. “ ‘In determining whether an excerpt from a charge is subject to the criticism that it contains an expression or intimation of opinion as to what has or has not been proved, the excerpt shall be considered in the light of the entire charge. Upon application of this principle the extract from the court’s charge in this case, as [objected] to upon the ground that it expressed an opinion on the facts, did not constitute reversible error.’ [Cits.]” Camilla Cotton-Oil Co. v. Cawley, 52 Ga. App. 268, 270 (2) (183 SE 134) (1935).

7. During the cross-examination of appellants’ expert witnesses, the trial court did not err in allowing appellees to posit questions based upon certain texts which were shown to be standard medical works. See generally Mize v. State, 240 Ga. 197, 198 (4) (240 SE2d 11) (1977); Pound v. Medney, 176 Ga. App. 756, 762 (4) (337 SE2d 772) (1985).

8. Appellants enumerate as error an instance wherein the direct examination of one of their expert witnesses was allegedly curtailed. However, the record shows that the direct examination of this witness was not aborted by the trial court, but was voluntarily terminated as the result of appellants’ apparent decision to forego further direct examination. Moreover, appellants made no proffer of the additional testimony they expected to elicit from the expert witness, and this enumeration is accordingly without merit. See Anderson v. Jarriel, 224 Ga. 495, 496 (3) (162 SE2d 322) (1968).

Judgment affirmed.

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