text:
    77911.
    SCOTT v. THE STATE.
    (379 SE2d 199)
   Sognier, Judge.

Joseph Lee Scott was convicted of the offenses of aggravated assault on a police officer with a deadly weapon, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon, and he appeals.

Construing the evidence to support the convictions, the jury was authorized to believe that all the charges for which appellant was convicted stemmed from an incident on July 23, 1986, on Interstate 20 in DeKalb County, in which State Trooper J. M. Welch stopped a Ford Escort for a tag violation. Trooper Welch approached the driver, Bobby Lackey, asked him to step out, and after Lackey stated he did not have his driver’s license, asked him to sit in the back of the patrol car on the passenger side. When Lackey gave a name and date of birth which did not match up on Welch’s computer with those on file, Welch approached appellant, the passenger in the Escort, to see if he could assist in identifying the driver. Appellant told Welch he had no driver’s license, and gave Welch the name “Joe Smith” and a date of birth which did not match those on file for any driver’s license issued to a “Joe Smith.” At that point, Welch was informed via radio communication from headquarters that the tag on the Escort was registered to a different car and the Escort had been reported stolen. He then told appellant to get out of the Escort, patted him down for weapons and, finding none, walked appellant back to the patrol car, opened the passenger door on the driver’s side, and requested that appellant get in. Lackey, seeing the open passenger door, moved across the rear seat and began pushing on the door with his foot, struggling to leave the patrol car. Welch pushed back on the door, trying to prevent Lackey from escaping, and while they struggled appellant reached over and grabbed Welch’s service revolver from its holster on Welch’s hip. Appellant told Welch to “freeze, sucker” and fired several shots while Welch jumped back and dove behind the patrol car. Lackey and appellant then ran to the Escort and drove off. Appellant was arrested on these charges after the DeKalb County police learned he was in the Clarke County jail on other charges. By that time, Lackey had died in an unrelated automobile accident.

1. Appellant first contends the evidence was insufficient to support his convictions because the State failed to disprove his affirmative defense of coercion. We do not agree that no evidence was adduced which would have authorized the jury to disbelieve that appellant was coerced. Appellant testified that he did not know Lackey very well and had merely gone for a ride with him that day, but Delores Ellis, Lackey’s girl friend, testified that Lackey and appellant knew each other very well. Appellant testified that when Trooper Welch stopped the car, Lackey told him the reason they were being stopped was that the car was stolen, and that he would kill appellant as well as his family if he did not do something about the situation, putting appellant in mortal fear of Lackey. Appellant further testified he reached for and grabbed Welch’s gun because Lackey hollered to him to get Welch’s pistol in a “real loud and mean-like” voice. However, Welch testified that he heard no such exhortation from Lackey.

We agree with the State that appellant’s testimony that he grabbed the gun only because of his fear of Lackey is belied by Welch’s testimony that appellant boldly told him to “freeze, sucker.” Further, appellant’s trial testimony differed in several important respects from previous statements, undermining his credibility. “ ‘Where there is a conflict in the testimony of witnesses, their credibility is for the jury, and not this court, to decide.’ [Cits.] ‘On appeal of a conviction based on a jury verdict’ the appellate court examines ‘the evidence in a light most favorable to support that verdict’ and resolves ‘all conflicts in favor of the verdict.’ [Cit.]'Applying these precepts, the evidence was sufficient for a rational trier of fact to find the essential elements of the offense [s] charged beyond a reasonable doubt. [Cits.]” Hosch v. State, 185 Ga. App. 71 (1) (363 SE2d 258) (1987).

2. Appellant next asserts the trial court erred by admitting evidence of other crimes into evidence. The “other crimes” in this case were an armed robbery and automobile tag theft committed by appellant and Lackey in Clarke County after the charged offenses. Initially, we note that although appellant moved in limine to prevent the admission into evidence of the armed robbery, no objection was made to the introduction of evidence concerning the tag theft. Accordingly, appellant waived any objection he may have had to the introduction of the tag-theft evidence. See Thaxton v. State, 184 Ga. App. 779, 781 (2) (362 SE2d 510) (1987).

As to the armed robbery, the evidence admitted showed that appellant and Lackey, after escaping from Trooper Welch, drove back toward Athens and, after stealing a pickup truck and then a tag and purchasing ammunition for the gun stolen from Welch, went to Lackey’s home for the night. The next day they robbed a gasoline station. The State argues that this evidence was admissible for two purposes: first, to show appellant’s identity, and second, to impeach appellant regarding his defense of coercion by showing that he and Lackey regularly spent time together, and were, in fact, partners in crime. Contrary to appellant’s argument, evidence of other crimes may be admitted to prove identity. Saleem v. State, 169 Ga. App. 952, 953-954 (1) (315 SE2d 487) (1984). We agree with appellant, however, that there was no question of identity here, since appellant admitted committing the crimes as charged but claimed he was coerced.

Nevertheless, we find the evidence was properly admitted as part of a continuing criminal transaction which began with the attack on Welch, continued through the thefts of the truck and the tag, and ended with the service station robbery. “While the general rule is that a separate and independent offense is inadmissible on the prosecution for another crime, exceptions to the rule exist where there is a logical connection between the two crimes from which it can be said that proof of one crime tends to prove the other. [Cit.] Such an exception exists where ‘the extraneous crime ... is one of a system of mutually dependent crimes.’ [Cits.]” Harper v. State, 249 Ga. 519, 531 (8) (292 SE2d 389) (1982). Further, as indicated by the State, the admitted evidence was relevant because it tended to disprove appellant’s affirmative defense of coercion by showing that appellant was with Lackey on other occasions, and “[w]here evidence is otherwise relevant and material to the issues being tried, it is not rendered inadmissible merely because it may incidentally place the defendant’s character in issue. [Cits.]” Worthy v. State, 180 Ga. App. 506, 508 (3) (349 SE2d 529) (1986).

Decided February 10, 1989

Rehearing denied February 27, 1989

J. M. Raffauf, for appellant.

Robert E. Wilson, District Attorney, Eleni A. Pryles, Barbara B. Conroy, Robert Statham, Assistant District Attorneys, for appellee.

3. In his final enumeration of error, appellant maintains the convictions for possession of a firearm by a convicted felon and possession of a firearm during the commission of a felony should have merged because the factual basis for both depends upon appellant’s status as a “prohibited person.” We do not agree.

Georgia courts have held that the offense of possession of a firearm by a convicted felon does not merge with an offense charging possession of a prohibited weapon. Bivins v. State, 166 Ga. App. 580, 582 (3) (305 SE2d 29) (1983). Neither offense merges with the offense of armed robbery. McGee v. State, 173 Ga. App. 604, 605-606 (3) (327 SE2d 566) (1985); McKissic v. State, 178 Ga. App. 23, 24 (2) (341 SE2d 903) (1986). The conduct prohibited by OCGA § 16-11-131 (b) is the receipt, possession, or transportation of “any firearm” by “[a]ny person . . . who has been convicted of a felony.” The conduct prohibited by OCGA § 16-11-106 (b) is having “on or within arm’s reach of [one’s] person a firearm . . . during the commission of, or the attempt to commit” certain enumerated felonies. Under these statutes, an essential element of the former crime, but not of the latter, is the status of the accused as a convicted felon, whereas an essential element of the latter crime, but not of the former, is the commission of a felony while in possession of the weapon. One crime is not “included” in the other, nor do they merge factually, because each involves proof of distinct essential elements. See generally Bivins, supra at 582 (3). Accordingly, the trial court did not err by sentencing appellant for both crimes.

Judgment affirmed.

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


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    A89A0118.
    CROLLEY et al. v. CROW-CHILDRESS-MOBLEY #2.
    (379 SE2d 202)
   Deen, Presiding Judge.

In October 1983, appellant Theodore W. Crolley, president of several corporations (including the American Communities Corporation (ACC)), signed a three-year lease, in his capacity as president of ACC, for certain warehouse space belonging to appellee Crow-Childress-Mobley #2 (Crow). After December 1984, ACC ceased to make the monthly rental payments specified in the lease and three months later vacated the premises. The landlord subsequently was able to rent the space to another tenant and brought an action against ACC, seeking accrued and future rents. Crolley as an individual defendant was later added by court order.

At trial plaintiff pointed out that not only ACC but several other Crolley-owned corporations had occupied the leased premises, as well as Crolley individually and several employees who, at Crolley’s direction, performed duties sometimes for one corporation and sometimes for another. Plaintiff alleged that Crolley had “milked” ACC for “management fees” and had diverted money to other corporations, and that Crolley should therefore be liable on the lease individually as well as in a corporate capacity. Plaintiff also rejected Crolley’s theories concerning appellee/lessor’s alleged “acceptance of the surrender of the premises” and fraudulent inducement and/or mutual mistake regarding alleged representations concerning permissible uses of the rental space.

On appeal Crolley enumerates as error the denial of his motions for directed verdict and judgment n.o.v. on the sufficiency of the evidence as to the “piercing the corporate veil” issue; the denial of his motions for judgment n.o.v. and for new trial on the basis that appellee had re-rented the vacated premises without notifying him that ACC would continue to be held liable for the rent; and the granting of appellee’s motion for directed verdict on Crolley’s claim of fraudulent inducement. As a fourth error Crolley asserts that the verdict was against the weight of the evidence as to the existence vel non of a mutual mistake regarding permissible uses of the premises. Held:

1. Appellant’s fourth enumeration is patently without merit inasmuch as, according to well-settled law, the appellate court determines only the sufficiency of the evidence, and not its weight. Johnson Dev. Co. v. Joe Sheehan &c., 186 Ga. App. 764 (368 SE2d 546) (1988).

2. Our review of the record indicates that there was sufficient competent evidence adduced both to authorize the trial court to submit the “corporate veil” issue to the jury and to authorize the jurors to find that ACC was merely Crolley’s alter ego. The cases cited in appellant’s brief are distinguishable on their facts and therefore provide no support for his contentions. Appellant’s first enumeration is without merit.

Decided February 14, 1989

Rehearing denied February 27, 1989

James W. McKenzie, Jr., for appellants.

Davis, Matthews & Quigley, Robert E. Casey, Jr., for appellee.

3. Under well-settled principles of Georgia law, a landlord’s possession of premises abandoned by a tenant does not constitute an acceptance of a surrender of the premises — or, as here — abandonment by the tenant. Hulsey v. Harrington, 57 Ga. App. 479 (195 SE 901) (1938). In such circumstances the landlord has the option of (1) terminating the lease, (2) obtaining another tenant while holding the original tenant liable for any deficiency that may occur, or (3) permitting the premises to remain vacant while collecting the agreed-upon rent from the original tenant. Kimber v. Towne Hills Dev. Co., 156 Ga. App. 401 (274 SE2d 620) (1980). In neither the second nor the third of the above-named circumstances does there arise the presumption of surrender and acceptance thereof. Appellee was entitled to no notice beyond that implied by the relevant law — notice which he undoubtedly received by his own conduct and by the terms of the rental agreement. This enumeration, too, has no merit.

4. The record indicates that the evidence purporting to show fraudulent misrepresentation consists only of appellant’s bare allegations and his self-serving interpretations of what passed between the parties regarding the possibility or permissibility of operating a cabinet shop within the leased warehouse premises. Such evidence was insufficient to withstand appellee’s motion for directed verdict on this issue. This enumeration is also without merit.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Banke, Presiding Judge.

text:
    A89A0111.
    HAYNES et al. v. HIGHT.
    (379 SE2d 21)
   Banke, Presiding Judge.

The appellee attorney filed the present action to collect an indebtedness allegedly owed by the appellants for legal services rendered. The trial court denied a motion by the appellants for permission to serve late responses to certain requests for admissions filed by the appellee and subsequently awarded summary judgment to the appellee based on the admissions created by the appellants’ failure to respond to the requests in a timely manner. This appeal followed. Held.

1. The appellants contend that they were entitled to additional time in which to respond to the requests for admission pursuant to OCGA § 9-11-6 (b) (2), which provides, in pertinent part, that upon motion made by a party after the expiration of the time period in which an act is required or allowed by the CPA to be done, an extension may be granted by the trial court “where the failure to act was the result of excusable neglect. ...” The only reason offered by the appellants for the delay in submitting the responses was that they had been without legal representation at the time the requests for admission were served upon them and thus “had no knowledge of time limitation, nor that their failure to respond would be considered an admission of the requests” pursuant to OCGA § 9-11-36 (a) (2). We hold that the trial court did not abuse its discretion in concluding that this assertion failed to constitute a showing of excusable neglect. Accord Peppers v. Siefferman, 153 Ga. App. 206 (2) (265 SE2d 26) (1980). See generally Wall v. C & S Bank, 145 Ga. App. 76 (2), 79-80 (243 SE2d 271) (1978).

Decided February 27, 1989.

Scott McLarty, for appellants.

Tony H. Hight, pro se.

2. The appellants additionally contend that the grant of summary judgment was improper because they had no opportunity to file a motion to withdraw the admissions pursuant to OCGA § 9-11-36 (b) before the appellee moved for summary judgment. However, even assuming that the appellants were, for some unexplained reason, prevented from moving to withdraw the admissions before the appellee filed his motion for summary judgment, there is no explanation for why they did not do so afterwards. See Hanson v. Farmer, 163 Ga. App. 561 (1) (295 SE2d 343) (1982). Accordingly, we hold that the trial court did not err in awarding summary judgment to the appellee on the basis of the admissions created by the appellants’ failure to file timely responses to the requests for admission.

Judgment affirmed.

Sognier and Pope, JJ., concur.


author: Benham, Judge.

text:
    77174.
    WADDELL v. THE STATE.
    (379 SE2d 592)
   Benham, Judge.

In a bifurcated trial, appellant was convicted of aggravated assault; possession of a firearm during the commission of a felony; and possession of a firearm by a convicted felon. On appeal, he claims entitlement to a new trial on the grounds that his trial counsel was ineffective and that the trial court failed to give an appropriate instruction concerning the bifurcated nature of his trial.

The evidence showed that the victim suffered numerous small puncture wounds on his face, ears, neck, and upper chest. The wounds were caused by a discharge of birdshot from a sawed-off shotgun fired by appellant, who claimed he acted in self-defense. Appellant stated that the victim was standing on the far side of a pickup truck and, using a two-hand hold, was pointing a gun at appellant. An eyewitness testified that he did not see a gun in the victim’s hand until he checked on the victim’s status after the shooting. A firearms expert testified that if the victim had been holding a gun in a two-hand hold as appellant said he was, the victim would have received birdshot pellet injuries to his hands. The emergency personnel who treated the victim at the scene testified that the victim had no wounds to his hands.

1. “To establish that there has been actual ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that the deficiency prejudiced the defense. In order to prove the defense has been prejudiced, defendant must show there is a reasonable probability that the result of the proceedings would have been different but for counsel’s unprofessional deficiencies. [Cit.]” Baggett v. State, 257 Ga. 735 (1) (363 SE2d 257) (1988).

At the hearing on appellant’s motion for new trial, appellant’s trial counsel testified to his opinion that he had not rendered appellant effective assistance of counsel during voir dire due to physical illness. Trial counsel stated that the illness prevented him from fully participating in the jury selection, which resulted in the inclusion on the jury of the wife of a deputy sheriff. Trial counsel testified that he believed his performance was not within the range of competence expected of criminal defense attorneys, and that there was a reasonable probability that the outcome of appellant’s trial would have been different had counsel rendered effective assistance of counsel. Appellant contends that the testimony of his trial counsel satisfies the evidentiary criteria, thereby entitling him to a new trial. We disagree. Although appellant’s trial counsel is of the opinion that his conduct was deficient and that there is a reasonable probability that appellant would not have been convicted had the deputy’s wife not been a member of the jury, it is up to the court to judge the reasonableness of counsel’s conduct. Strickland v. Washington, 466 U. S. 668, 690 (104 SC 2052, 80 LE2d 674) (1984). Given the evidence of appellant’s guilt presented at trial, we are unable to agree with appellant that the trial’s outcome would have been different had the deputy’s wife not served on the jury. See Ray v. State, 183 Ga. App. 57, 58 (357 SE2d 877) (1987).

Decided February 27, 1989.

Oliver & Woods, William R. Oliver, for appellant.

Michael H. Crawford, District Attorney, E. Jay McCollum, As sistant District Attorney, for appellee.

2. Appellant next contends that reversible error occurred when the trial court failed to give the jury the instruction outlined in Head v. State, 253 Ga. 429 (3b) (322 SE2d 228) (1984). In Head, the Supreme Court held that a defendant charged with possession of a firearm by a convicted felon as well as with another crime should, in certain cases, on motion, be tried in a bifurcated proceeding in order that his prior felony conviction not inject character into the trial of the other crime. If during the voir dire of such a bifurcated proceeding there is inquiry that discloses to the jury the existence of a prior felony conviction, “the trial court at that time shall issue limiting instructions . . .’’to the jury. Id. In the case at bar, appellant initially waived his right to bifurcation. During a discussion of a motion in limine four days after the jury was selected and sworn but prior to the taking of any testimony, appellant sought and was granted a bifurcated trial. In response to concerns that the possession by a convicted felon charge had been brought to the jury’s attention during voir dire, the trial court agreed at the State’s request to give a Head limiting instruction provided the defendant stipulated in the trial of the main case that he was a convicted felon. Appellant now complains that the trial court committed error because it failed to give the limiting instruction.

Pretermitting a discussion of the viability of the trial court’s prerequisite for a Head instruction is our conclusion that the failure to give one, if error, was harmless.'Appellant’s prior conviction was not mentioned in the trial of the main case, and because voir dire was not recorded, we are unable to ascertain the extent of the discussion of appellant’s prior felony conviction. That discussion occurred four days before trial and, in light of the eyewitness and expert testimony establishing appellant’s guilt, we agree with the trial court that error, if any, was harmless. See Graham v. State, 185 Ga. App. 617 (2) (365 SE2d 482) (1988).

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


text:
    77725.
    OWENS v. CITIZENS TRUST BANK et al.
    (379 SE2d 594)
   Benham, Judge.

Citizens Trust Bank’s complaint against appellant alleged that she executed a note in favor of the Housing Authority of the City of Atlanta, secured by a deed to secure debt; that the note and deed were assigned to the bank; that appellant rescinded the note for violations of the Truth in Lending Act; that the bank acceded to the rescission by executing a quitclaim deed to appellant with regard to the property securing the note and then demanding repayment of the money received by appellant; and that appellant, having never intended to return the money, failed to do so. Appellant answered and counterclaimed and asserted a third-party claim against four individuals she alleged were involved in the home improvements for which the money was borrowed. The third-party claims were based on allegations of breach of contract, negligence, racketeering, breach of fiduciary duty, and fraud. In response to the bank’s motion to strike the third-party complaint, the trial court dismissed the third-party complaint without prejudice.

1. Appellant’s contention that the bank lacks standing to seek dismissal of the third-party action is controlled adversely to her by OCGA § 9-11-14 (a): “Any party may move to strike the third-party claim. . .

2. The only discernible relation between the main action and the third-party action is that the third-party defendants are alleged to have wrongfully deprived appellant of the funds the bank is seeking in its suit. There are no allegations in the third-party claim, however, that the third-party defendants are secondarily liable for appellant’s debt to the bank. “[0]ur impleader provision does not allow a defendant ‘to bring in a third party for the purpose of enforcing a liability against the latter different from that on which the plaintiff is proceeding in an action at law.’ [Cit.] Impleader is ‘not a device for bringing into an action any controversy which may happen to have some relationship with it. A defendant cannot assert an entirely separate claim against the third-party even though it arises out of the same general set of facts as the main claim. There must be an attempt to pass on to the third-party all or part of the liability asserted against the defendant (but not to tender the third party as a substitute defendant).’ [Cits.] The instant third-party complaint alleges separate and independent causes of action for . . . damages to [appellant] resulting from [the third-party defendants’] alleged fraud, breach of contract, . . . negligence [,and other wrongdoing.] Such liability on the part of [the third-party defendants] is not dependent upon the outcome of the main claim against [appellant on the debt]. If otherwise viable, any such claims possessed by [appellant] against [the third-party defendants] will exist regardless of the outcome of the main action. Accordingly, the trial court was correct in dismissing the third-party complaint.” Knapp v. Lolley, 177 Ga. App. 786, 787 (341 SE2d 306) (1986).

Decided February 27, 1989.

King, Morris, Talansky & Witcher, Joseph H. King, Jr., for appellant.

Leslie J. Bryan, June D. Green, Richard D. Ellenberg, for appellees.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


author: Birdsong, Judge.

text:
    77781.
    CALHOUN v. SOMOGYI.
    (379 SE2d 595)
   Birdsong, Judge.

Oral Contract—Long Arm Statute. Graham G. Calhoun and Ildiko Von Somogyi, as man and wife, owned, operated and received income from a photography business located in Fulton County, Georgia, during the years 1983-1985. They maintained a joint residence. In April, 1985, they filed joint federal and state tax returns for income earned in 1984. Additionally, normal household expenses were incurred. On or about July 1, 1985, Ildiko Von Somogyi departed the State of Georgia and established residence in the State of California. Before she left, however, she allegedly entered into an oral contract with her husband Graham Calhoun to pay “half of their marital indebtedness in the event their marriage was dissolved.” By decree of final divorce dated January 22, 1986, the marriage was terminated. Somogyi did not contest the divorce and Calhoun, acting pro se, made no mention of the pre-divorce contract for settlement of marital indebtedness in the divorce action, nor does any reference thereto appear in the decree of divorce. In October 1985, Calhoun paid half of the tax liability on the federal return and over a period of time paid outstanding household marital expenses. Calhoun requested Somogyi to pay her half pursuant to the oral contract, which she has consistently declined to do. In August 1986, the federal tax authorities levied on Calhoun’s bank balance to satisfy Somogyi’s portion of the tax owed for 1984. Somogyi likewise has refused to pay any ordinary and necessary household expenses incurred during the existence of the marriage. In June 1987, Calhoun filed suit to gain enforcement of the oral contract. Somogyi moved to dismiss the petition on grounds of res judicata and lack of jurisdiction. The motion to dismiss was granted but with leave to refile in any court of competent jurisdiction. Calhoun’s motion for discretionary appeal was granted. This appeal followed. Held:

1. The trial court granted Somogyi’s motion to dismiss on two basic grounds. At the hearing on the motion, both parties agreed that the divorce decree was wholly silent as to any settlement other than the dissolution of the marital bond. The trial court concluded, erroneously we hold, that any marital obligations between the parties must have been placed in issue and decided in the final judgment of divorce. The failure to include the July 1985 agreement to jointly and equally pay marital indebtednesses in the divorce decree was held to be res judicata as to that earlier agreement. However, this court has held: “ ‘Where the parties to a divorce action fail to schedule or incompletely schedule their property, even though title to the personal property of each might have been adjudicated in the action, the final decree leaves the parties where it finds them, and the separate title of each to his own property is unaffected by the decree.’ ” Lee v. Lee, 148 Ga. App. 321, 322 (251 SE2d 171). “ ‘[Wjhere no issue was raised and decided with respect to particular [rights] . . . the parties were not bound under the principles of res judicata in subsequent litigation with respect to such [rights] [cits.] Thus, the true rule of res judicata in divorce and alimony cases seems to be that a final decree has the effect of binding the parties and their successors as to all matters which were actually put in issue and decided, or which by necessary implication were decided between the parties.’ ” (Emphasis deleted.) Brookins v. Brookins, 257 Ga. 205, 207 (357 SE2d 77). This record is completely silent as to the July 1985 agreement and the parties’ intent relating thereto in the decree of divorce of January 1986. Thus the law leaves the parties where it found them and the 1986 divorce decree is not res judicata as to the July 1985 oral contract.

2. The trial court also found that appellee Somogyi was not subject to the jurisdiction of a Georgia court under any of the five grounds enumerated in the Georgia Long Arm Statute, OCGA § 9-10-91. Once again, we must disagree with the conclusion of the trial court. The pleadings submitted by appellant Calhoun and not refuted by Somogyi indicate that all during 1983-1984 and until July 1985, Somogyi was actively engaged with Calhoun in running a business in Fulton County, Georgia, and earning an income therefrom. They incurred household expenses while living together in that same area. A joint income tax return was filed in April 1985, as a direct result of and to cover the business activities and income generated thereby both with the federal and state taxing authorities. The agreement of July 1985 assertedly grew out of and was caused by the joint activities of Calhoun and Somogyi during the years 1984 and 1985.

At the time the oral contract was executed, Somogyi was a resident of Georgia but at the time of this litigation, was a resident of California. However, the term “nonresident” includes an individual who, at the time a claim or cause of action arises was residing in Georgia and subsequently becomes a resident outside of this state as of the date of perfection of service of process. OCGA § 9-10-90; Stone v. First Nat. Bank of Atlanta, 159 Ga. App. 812, 813 (285 SE2d 207). Therefore, if otherwise applicable, Somogyi is subject to the provisions of the Long Arm Statute. The primary issue, thus, is whether Somogyi had the requisite “minimum contacts” in this state. See generally Behar v. Aero Med Intl., 185 Ga. App. 845, 849-850 (366 SE2d 223). “ ‘Presence’ in the [forum] state . . . has never been doubted when the activities . . . have not only been continuous and systematic, but also give rise to the liabilities sued on. . . .” International Shoe Co. v. State of Wash., 326 U. S. 310, 317 (66 SC 154, 90 LE 95). “Under our Long Arm Statute, jurisdiction over a nonresident exists on the basis of transacting business in this state if the nonresident has purposefully done some act or consummated some transaction in this state, if the cause of action arises from or is connected with such act or transaction, and if the exercise of jurisdiction by the courts of this state does not offend traditional fairness and substantial justice.” Davis Metals v. Allen, 230 Ga. 623, 625 (198 SE2d 285). The nationwide trend of interpretive opinions is to construe long arm “transacting any business” statutes most liberally and to uphold the jurisdiction of the forum court in actions arising, either directly or indirectly, out of such transactions. McGee v. Intl. Life Ins. Co., 355 U. S. 220, 222 (78 SC 199, 2 LE2d 223). To the extent that Ms. Somogyi exercised the privilege of jointly conducting business activities in Georgia, she enjoyed the benefits and protection of the laws of Georgia. The acceptance of that privilege of earning income and incurring indebtednesses gave rise to obligations and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires her to respond to a suit brought to enforce those obligations can, in this instance, hardly be said to be undue. Hollingsworth v. Cunard Line, Ltd., 152 Ga. App. 509, 514-515 (263 SE2d 190), citing with approval International Shoe Co. v. State of Wash., supra at p. 319.

3. In his enumeration of error 3, Calhoun complains that he was denied erroneously the right to amend his complaint to cure jurisdictional defects and allege claims not barred by res judicata. In the light of our holding in Divisions 1 and 2 of this opinion, it would appear this enumeration is mooted. Nevertheless, this state has a liberal policy for allowing amendment. OCGA § 9-11-15 (a) allows a party to amend as a matter of course and without leave of court at any time before entry of a pretrial order. See McDonald v. Rogers, 229 Ga. 369, 378 (7) (191 SE2d 844); Dalton Carpet Indus. v. Chilivis, 137 Ga. App. 266 (223 SE2d 460).

Decided February 27, 1989.

Gill Law Firm, Joe D. Calhoun, for appellant.

George C. McKaig, for appellee.

Judgment reversed.

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


text:
    77795.
    LANCASTER v. THE STATE.
    (379 SE2d 786)
   Benham, Judge.

In 1983, appellant and others were convicted of aggravated sodomy of a fellow prisoner while they were all incarcerated at a diagnostic center. See Jones v. State, 172 Ga. App. 347 (323 SE2d 174) (1984). Appellant’s motion for new trial was denied in February 1985. He moved for an out-of-time appeal, and the trial court granted his motion in May 1988. This appeal followed.

1. Appellant claims that a portion of the jury charge was coercive and unrelated to the question of his guilt or innocence. However, when the trial court asked for objections to the charge, appellant stated some objections but did not mention the portion of the charge to which he now objects, nor did he reserve the right to object in a motion for new trial or an appeal. By failing to do so, he waived his right to assert error at this time. Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980). Appellant’s waiver notwithstanding, we have reviewed the charge but find that it was not harmful as a matter of law. OCGA § 5-5-24 (c).

2. One of appellant’s co-defendants had written a letter to a male prisoner but used the name “Marsha” to address him. The trial court allowed the letter to be introduced as evidence of the co-defendant’s homosexuality. Jones, supra, Division 2. Appellant contends, as did his co-defendants, that the letter was unduly prejudicial, and relies on Rini v. State, 235 Ga. 60 (218 SE2d 811) (1975), and 236 Ga. 715 (225 SE2d 234) (1976), for the proposition that “[e]vidence of the commission of a crime other than the one charged is generally not admissible.” Rini, 235 Ga. at 65. That case goes on to note that there are exceptions to that general rule; and in Rini, 236 Ga. at 717, the Supreme Court held that while certain evidence of homosexuality unrelated to the murder for which the defendant was being tried could not be introduced, other evidence of homosexuality was introduced to prove motive and was admissible for that reason. The evidence of the co-defendant’s homosexuality was admissible in the context of a trial for aggravated sodomy. Gunter v. State, 163 Ga. App. 824 (2) (296 SE2d 622) (1982). We find no error.

Decided February 27, 1989.

Winslow H. Verdery, Jr., for appellant.

Michael H. Crawford, District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


author: McMurray, Presiding Judge.

text:
    77808.
    ADAMS et al. v. CAMP HARMONY ASSOCIATION, INC.
    (379 SE2d 407)
   McMurray, Presiding Judge.

Plaintiffs, Ralph H. Adams ánd Blanche R. Adams, brought suit against defendant, Camp Harmony Association, Inc., for the wrongful death of their seven-year-old daughter. It was alleged that defendant owned, operated and maintained a day camp and recreation area; that the decedent was a “day-camper” at defendant’s facility; that defendant negligently operated and maintained a swimming pool at its facility; and that, as a result of defendant’s negligence, that decedent drowned in defendant’s swimming pool. Defendant answered the complaint and denied any liability for the decedent’s death. It also asserted it was immune from suit by virtue of the charitable immunity doctrine.

The case was tried by a jury which rendered a verdict in favor of defendant. Judgment was entered accordingly and plaintiffs moved for a new trial. Following the denial of plaintiffs’ motion for a new trial, plaintiffs appeal. Held:

1. During closing argument, counsel for defendant touched on the positive impact which defendant’s Camp Harmony and Beefy Eaves, who was not a defendant, had upon the young people of Elbert County. Defense counsel indicated how long he had been practicing law, introduced himself and stated, “(t)oday I am representing Camp Harmony and Beefy Eaves. I’m sorry that Susan Adams [decedent] is not here. We all are, but I think the Judge will charge you that you cannot decide this case on sympathy. You’re bound to decide this case on the facts that occurred out there on the day that this accident happened . . .

“All of you know or know of Beefy Eaves. Beefy tells me and I think that he’s testified that he has been in youth work for forty-four years and that of that forty-four years, there’s about twenty—I mean, thirty-four of those years spent here in Elberton and ten of those years were spent in Athens with the Y program, with the University of Georgia. Then he’s been back here since that time working with the youth in our community. Beefy Eaves and Bill Clark- were two men who were working with the City of Elberton Recreation program and they had an idea and they had a dream and that dream was Camp Harmony. That dream was not to benefit them. That dream was not to accumulate money for them. That dream was to benefit the young people, the children of Elbert County and the future generations of Elbert County. You heard how they had the idea, they bought the land by donations. They raised the money. They built the buildings. They cleared the ball fields with bulldozers that were contributed. They built the lake that they swam in before the pool was ever built. They built the cabins. They built the rifle range. They bought a bus. They later built the swimming pool and the recreation hall as it exists. All of this was done without a dollar of tax money from your pocket and from mine or from any other taxpayer in the City of Elberton or Elbert County. It was done through contributions because these two men, Bill Clark and Beefy Eaves had a dream and that dream exists out there today in all its glory as Camp Harmony . . .
“I want to call to your attention what John Etheridge had to say on the stand yesterday. John Etheridge as far as I know has no interest in this case other than the fact that his son, Glenn Etheridge went to camp there. I’m going to attempt the best I can to repeat what John Etheridge said. He said, we all know there’s no man in this community who has had a greater influence for good on the children of Elberton and Elbert County than Beefy Eaves. He said, no matter if the other man be a teacher, a minister of God, a social worker or whatever, no other man has had the influence that Beefy Eaves has had on the young people of our community. Look around you. Look at the people you know that Beefy has trained. Think about the number of children that he’s kept out of being drug addicts, alcoholics. Think about the people that Beefy has taught to work, to do a job and do it right . . .
“Look at the boys that Beefy has trained, see whether or not he’s done a good job. Look at the girls he’s trained. See whether or not he’s done a good job ... I tell you today that if this wasn’t an accident outlined by the law of Georgia where nobody was at fault, where everybody is sorry it happened, then I never heard of one and I ask you to so find, otherwise you will with one verdict wipe out Camp Harmony, wipe out Beefy’s work, wipe out the future of those fine little boys that Happy Boyd brought in here yesterday, the younger generation that are coming along. They won’t have a place if you give a verdict—” At that point, the jury was excused and plaintiffs’ counsel moved for a mistrial. The motion was denied, the jury returned to the courtroom, and the court charged as follows:
“Ladies and Gentlemen of the jury let me instruct you that in reaching a decision in this case, you’re going to be dealing with three questions primarily. [At that point, the trial court enumerated several questions concerning defendant’s alleged negligence.] [A]nd that is the only thing you’re to concern yourselves with. You’re not to consider, you’re not to worry, you’re not to be concerned about any effects of that judgment or any effects of the assets of the corporation. There may be some that would be subject, there may be some that will not be subject, there may not be any that’s subject to any judgment. This is a discussion that we had in chambers and this is the discussion that we thought would prevail out here, but anyway the Court tells you that the argument advanced by [defense counsel] is improper and I’ll ask him to move on and you’re to only concern yourself with the questions that will be given to you on this form of your verdict.”

Counsel for plaintiffs renewed the motion for a mistrial. Again, the motion was overruled. In their first enumeration of error, plaintiffs assert the trial court erred in denying the mistrial motion.

“No hard and fast rule may be laid down as to when improper remarks of counsel in the trial of a case are or are not sufficiently cured by instruction of the court to the jury to refuse to consider them. Each case must be decided on its own facts.” Veazey v. Glover, 47 Ga. App. 826, 828 (171 SE 732). Viewing the facts and circumstances of this case, we are of the opinion that the trial court abused its discretion in overruling the motion for a mistrial.

The case was a close one on its facts. Thus, we must strictly scrutinize defense counsel’s remarks and the trial court’s curative instructions. Veazey v. Glover, 47 Ga. App. 826, 828, supra.

As was found by the trial court, defense counsel’s argument was improper, and in our view, under the particular facts and circumstances of the case sub judice, as sufficient to create a prejudicial slant against the plaintiffs, touching as it did upon the financial condition of defendant and its ability to continue to operate in the face of a large judgment. See Veazey v. Glover, 47 Ga. App. 826, supra. See also Superior Paving v. Citadel Cement Corp., 145 Ga. App. 6, 7 (3) (243 SE2d 287); John J. Woodside Storage Co. v. Reese, 105 Ga. App. 602, 603 (6), 604 (125 SE2d 556). We conclude that no amount of instruction by the trial court to disregard defense counsel’s argument could have erased the effect of defense counsel’s remarks under the particular facts and circumstances of the case sub judice. See Southern R. Co. v. Black, 57 Ga. App. 592, 593 (5) (196 SE 291). Compare Travelers Indem. Co. v. Wilkes County, 102 Ga. App. 362, 365 (2) (116 SE2d 314). Nothing short of the grant of plaintiffs’ motion for a mistrial would have been sufficient to cure the harm inflicted on plaintiffs. The trial court erred in failing to grant the mistrial motion and thus a new trial must be conducted.

Decided January 26, 1989

Rehearing denied February 28, 1989

Hudson & Montgomery, David R. Montgomery, Thomas M. Strickland, ior appellants.

Heard, Leverett & Phelps, R. Chris Phelps, Robert M. Heard, for appellee.

2. In view of our ruling in Division 1, we need not address the general grounds.

Judgment reversed.

Pope and Benham, JJ., concur.


author: Beasley, Judge.

text:
    77823.
    CORBITT v. THE STATE.
    (379 SE2d 535)
   Beasley, Judge.

Defendant appeals his convictions of driving under the influence of alcohol, OCGA § 40-6-391 (a) (1), and speeding, OCGA § 40-6-181.

1. Defendant contends the trial court erred by denying his motion in limine to exclude evidence of a similar transaction because the evidence, a nolo, contendere plea, was inadmissible under OCGA § 17-7-95 (c). The code section expressly prohibits the use of a nolo contendere plea against a defendant in any court proceeding as “an admission of guilt or otherwise or for any other purpose.” This case does not fit the previous exceptions provided by law.

While we have permitted the admission of such a plea in a civil case for impeachment purposes, Tilley v. Page, 181 Ga. App. 98, 100 (351 SE2d 464) (1986), we have not done so in a criminal case, and the purpose here was not impeachment. Allowing the State to introduce the plea as evidence of a prior similar crime is exactly what the code section was designed to prevent. See Fortson v. Hopper, 242 Ga. 81, 83 (247 SE2d 875) (1978). As in Beal v. Braunecker, 185 Ga. App. 429, 432 (2) (364 SE2d 308) (1987), we are not persuaded “that we should ignore the plain language” of the code.

2. Defendant’s first enumeration of error asserts a violation of OCGA § 17-7-210 because, within 10 days prior to trial, the State did not furnish a copy of his oral statement, made while in custody, refusing to submit to a blood-alcohol test. We do not reach the issue because it is moot, since defendant must be afforded a new trial. However, we note that OCGA § 40-6-392 (c) allows evidence of refusal as indicative of guilt. The application of OCGA § 17-2-210 would depend on the nature of this evidence.

Decided February 10, 1989

Rehearing denied February 28, 1989

Thomas L. Washburn III, for appellant.

James L. Webb, Solicitor, Patsy Y. Porter, J. Richard Edwards, Assistant Solicitors, for appellee.

Judgment reversed.

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


text:
    77527.
    QUAN v. JOHNSON.
    (379 SE2d 426)
   Benham, Judge.

This is an appeal from the denial of appellant Quan’s motion for summary judgment regarding appellee Johnson’s theory of liability based on the family purpose doctrine, as alleged in Johnson’s personal injury action against Quan and her brother Pak Uyu Hui. Hui was driving and Quan was riding in a 1983 Oldsmobile when it collided with Johnson’s vehicle, injuring Johnson. Johnson sued Quan, the registered owner of the Oldsmobile, under the family purpose doctrine. After discovery, Quan moved for summary judgment, but the trial court denied her motion. We granted her application for interlocutory appeal to review the trial court’s decision. We reverse.

“In Georgia, when an automobile is maintained by the owner for the use and convenience of his family, such owner is liable for the negligence of a member of the family having authority to drive the car while it is being used for a family purpose. [Cits.]” Phillips v. Dixon, 236 Ga. 271, 272 (223 SE2d 678) (1976). To apply the family purpose doctrine to a given situation, four criteria must be met: (1) the owner of the vehicle must have given permission to a family member to drive the vehicle; (2) the vehicle’s owner must have relinquished control of the vehicle to the family member; (3) the family member must be in the vehicle; and (4) the vehicle must be engaged in a family purpose. Quattlebaum v. Wallace, 156 Ga. App. 519, 520 (275 SE2d 104) (1980). “To come within the application of the doctrine, the defendant must own the automobile, or at least have some recognized property interest in it or supply it, and he must have made it available for family use, rather than for use in his business. [Cits.] Nevertheless, the principal factor is authority and control of the vehicle, and this is not necessarily determined by title to the vehicle or payment for the expenses of operation. [Cit.] Agency, not ownership, is the test of liability. [Cits.] Thus, in a family purpose situation the crucial issue may be whether the defendant supplied or furnished the vehicle for family purposes. [Cit.] Consequently, a mere showing that the vehicle was registered in the [head of household’s] name and utilized by a family member is alone not sufficient to establish this to be a family purpose car. [Cit.]” Keith v. Carter, 172 Ga. App. 588, 589 (323 SE2d 886) (1984). The doctrine applies to render the defendant vicariously liable if he had the right to exercise such authority and control that it may be concluded that an agency relationship existed between him and the family member with respect to the use of the vehicle. Murch v. Brown, 166 Ga. App. 538, 539 (304 SE2d 750) (1983).

The undisputed evidence in this case is that Quan and her brother shared the same residence with their mother and Quan’s children; that she owned and drove a vehicle other than the Oldsmobile; that she accompanied Hui when he purchased the car because he did not speak English; that the car was purchased in her name because he did not have an established credit record, but that he paid for everything, including insurance, gas, and repairs; that he had his own keys to the car; that Quan and Hui were not covered by the same insurance policy and Hui’s insurance was in his name; that he had the vehicle all of the time because it was his; that in the past he had not used his automobile to do things for Quan, her children, or their mother; that Hui always drove his own car to work and wherever he wanted to go; that Hui ran his own life and Quan did not watch what he did; and that at the time of the accident they were on their way to pick up a truck because they were going to move. “In the instant case, the unrebutted evidence established that the vehicle was the sole property of [Hui] from the date of its purchase. . . . [Quan] never had a property interest in the car other than its initial registration, never considered the vehicle to be [hers] nor exercised any incidents of ownership over it. ‘Even if it were conceded that defendant was the owner of the vehicle, the case would not turn on this point, as it would not disprove the uncontradicted evidence showing that the [brother] had the right to and did exercise exclusive authority and control over the vehicle. [Cit.] Since the evidence in this case conclusively establishes that the vehicle was owned and operated by an individual acting in his own capacity . . . , without any necessity for the consent of his [sister], expressed or implied, and without the exercise of any authority or control by the [sister], these facts fail to disclose . . . any basis for an action against the [sister] under the family-purpose doctrine for damages and injuries arising from its negligent operation. . . .’ [Cit.]” Keith v. Carter, supra. Therefore, the trial court erred in denying appellant’s motion for summary judgment.

Judgment reversed.

McMurray, P. J., and Pope, J., concur.

Decided February 28, 1989.

Webb, Carlock, Copeland, Semler & Stair, Douglas W. Smith, Paul R. Vancil, for appellant.

Ellerin & Williams, Osgood Williams, Jr., Chambers, Mabry, McClelland & Brooks, Jan P. Cohen, for appellee.


author: Pope, Judge.

text:
    77631.
    CLAYTON et al. v. LARISEY.
    (379 SE2d 789)
   Pope, Judge.

Appellants employed appellee as a general farm worker. Appellee brought suit against appellants seeking to recover for injuries he received while repairing a tractor he operated on appellants’ farm. The jury returned a verdict for appellee, awarding him $16,219. On appeal appellants contend that the trial court erred in denying their motion for directed verdict because the evidence was insufficient to establish their liability for appellee’s injuries.

On the day of the incident appellee was spraying a sorghum field for insects. He had to stop several times to reload the chemical bin on the tractor. When the tractor refused to start after one of the reloading stops, appellee put the tractor in neutral, dismounted the tractor, which was parked on a slight incline or hill, and instructed his sixteen-year-old cousin who was “along for the ride” to mount the tractor and hold the clutch in so it would not roll. Appellee testified that he thought the problem might involve a battery cable, so he walked around to the front of the tractor and removed the battery cover. Appellee further testified that the “[cable end] was loose and I took it off, cleaned it a little bit and put it back on there. [I p]ushed it down and it [connected].” Appellee testified that, in accordance with his instruction, his cousin pushed the clutch in, pushed the starter button and eased off the clutch. The tractor began to roll, rolling over appellee, who was standing in front of the tractor, and causing him serious injury.

OCGA § 34-7-20 provides that an “employer is bound to exercise ordinary care ... in furnishing machinery equal in kind to that in general use and reasonably safe for all persons who operate it with ordinary care and diligence. If there are latent defects in machinery or dangers incident to an employment, which defects or dangers the employer knows or ought to know but which are unknown to the employee, then the employer shall give the employee warning with respect thereto.” That section must be read in connection with Code Section 34-7-23 which provides as follows: “An employee assumes the ordinary risks of his employment and is bound to exercise his own skill and diligence to protect himself. In actions for injuries arising from the negligence of the employer in failing to comply with the duties imposed by Code Section 34-7-20, in order that the employee may recover it must appear that the employer knew or ought to have known ... of the defects or danger in the machinery supplied; and it must also appear that the employee injured did not know and had not equal means of knowing such fact and by the exercise of ordinary care could not have known thereof.” Consequently, “ ‘[i]n an action by a servant against a master for alleged failure of duty On the part of the latter in not giving to the servant warning of a danger incident to his employment, it must appear that the master knew or ought to have known of the danger, and that the servant injured did not know and had not equal means with the master of knowing such fact, and by the exercise of ordinary care could not have known it.’ [Cit.]” Whirlpool Corp. v. Hurlbut, 166 Ga. App. 95, 99 (303 SE2d 284) (1983). See also Hollingsworth v. Thomas, 148 Ga. App. 38 (1) (250 SE2d 791) (1978).

Appellee contends that the “appellants failed to warn him of the dangers that may exist if he attempted to fix the tractor . . . and failed to warn him not to attempt to fix it” and of the danger if he attempted to operate the tractor in a defective condition. In support of his contentions appellee presented evidence at trial that appellant-husband, Mr. Clayton, knew of the problem with the battery cable because it had to be replaced several weeks prior to the accident. Appellee testified that on that occasion the tractor also would not start and that when appellee removed the battery cover and discovered the cable had corroded, Mr. Clayton procured a new cable and appellee replaced it while Mr. Clayton watched. Appellee further testified that after he replaced the cable, he mounted the tractor and started it without incident, and that he had no further trouble with the cable until the date of the accident. It is because of this earlier incident involving the cable that appellee contends appellants should have warned him about the dangers of repairing the tractor. We disagree.

Appellee presented no evidence to suggest that the problem with the cable on the day of the accident was in any way related to the cable having been replaced several weeks earlier. Rather, appellee testified that it was normal for battery cables to come loose on tractors operating in the field and that tightening such cables was part of the general routine maintenance on the tractors. Likewise, appellee presented no evidence that the new cable was defective or that it had been improperly placed on the tractor.

Moreover, the earlier incident did not alert the appellants that appellee might undertake the repair in the manner used on the day in question. Specifically, appellants had no way of knowing that appellee would have someone start the tractor and release the clutch while he was standing in front of the tractor. On the earlier occasion appellee himself mounted the tractor after he finished replacing the cable and started the tractor. Had he used the same procedure here, his injury would not have occurred.

A directed verdict is authorized “[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” OCGA § 9-11-50 (a). “Negligence is not to be presumed, but is a matter for affirmative proof. In the absence of affirmative proof of negligence, we must presume performance of duty and freedom from negligence.” (Citations and punctuation omitted.) Collins v. Ralston & Ogletree, Inc., 186 Ga. App. 583, 584 (367 SE2d 861) (1988). “Where [as here] plaintiff simply fails to prove his case, the direction of a verdict is proper.” (Citations and punctuation omitted.) Id. at 585.

“[T]here is, [however] another ground which would bar [appellee’s] recovery, and that is his failure to exercise due care to provide for his own safety. Under [51-11-7], if the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence he is not entitled to recover. . . . [Appellee] may not be excused from maintaining diligence for his own protection by the fact that he did not know what he was doing was dangerous. . . . In the absence of anything to the contrary, every adult is presumed to possess such ordinary intelligence, judgment, and discretion as will enable him to appreciate obvious danger. Therefore an adult servant of ordinary intelligence will be held to be affected with knowledge of a manifest risk or danger incident to the doing of a particular thing in the operation of a machine, during his employment, although he may be inexperienced as to such operation and though the master may have failed to instruct him in respect thereto. [Cit.] ” (Punctuation omitted.) Union Carbide Corp. v. Holton, 136 Ga. App. 726, 730-731 (222 SE2d 105) (1975). Clearly appellee should have been aware that standing in front of a large farming tractor, parked on an incline, while a person wholly inexperienced in operating the machinery started the tractor and “eased” the clutch out was dangerous. “At some point the danger and likelihood of self-injury becomes so obvious that actual knowledge by the plaintiff is unnecessary. We must conclude the [appellee] failed to use ordinary care and diligence for his own safety in [repairing the tractor] in an obviously dangerous manner. Because of either one of these grounds, [appellee] was not entitled to recover against [appellants] as a matter of law.” Id at 732. Accord Hollingsworth, supra.

Judgment reversed.

McMurray, P. J., and Benham, J., concur.

Decided February 28, 1989.

R. H. Reeves III, for appellants.

William E. Woodrum, Jr., for appellee.


text:
    77701.
    FIRST SOUTHERN INSURANCE COMPANY et al. v. BROCK.
    (379 SE2d 427)
   Banke, Presiding Judge.

The claimant in this workers’ compensation case suffered a work-related injury in 1983, for which he has since received temporary total disability benefits. In 1987, the employer/insurer sought to convert these benefits to permanent partial disability benefits, contending that the claimant’s condition had changed for the better, with the result that he was no longer totally disabled. In support of this contention, the employer/insurer introduced into evidence a videotape produced by a private investigator, showing the claimant engaged in such activities as using a chainsaw, lifting large wooden posts onto his shoulder and then driving them into the ground with his hands and arms, and fighting a buried root with a rototiller. Upon viewing this tape, the claimant’s treating physician testified that “[i]f that were the capacity that this patient could do on a regular basis, then his disability would be less, in my opinion, than the estimated 30 percent that I had given him on previous dates and times.” Nevertheless, based apparently on the claimant’s testimony that he could not perform such work on a regular basis, the administrative law judge declined to discontinue his total disability benefits, ruling as follows: “Although the claimant was not a very credible witness, I find from the medical evidence of record that he has not fully recovered from his compensable injury and, therefore, he is not physically able to return to his normal work as a timber cutter. There is no evidence of record that there is light work available suitable to the claimant’s impaired condition. Therefore, I find that the employer/insurer’s request for a change in condition must be denied.”

The full board affirmed, emphasizing that the employer/insurer had “shown neither an actual return to work nor the report of claimant’s authorized treating physician noting claimant’s ability to return to work without restriction.” The superior court upheld the award, rejecting the employer/insurer’s complaint that the board had failed to consider whether and to what extent a change of condition had in fact occurred. The case is now before us pursuant to our grant of the employer/insurer’s application for a discretionary appeal. Held:

Decided February 28, 1989.

Saveli & Williams, Richard G. Farnsworth, for appellants.

Fred V. Westberry, for appellee.

The full board evidently determined that, notwithstanding the videotape evidence establishing, at the very least, that the claimant had been less than candid in his prior deposition testimony about the extent of his physical capabilities and activities, he would continue to be entitled to temporary total disability benefits unless and until the employer/insurer could show (1) that he had actually returned to work or (2) that he had been certified by his treating physician as able to return to work. While it is of course true that such evidence would have supported a ruling in favor of the employer/insurer, it was not an absolute prerequisite to such a ruling. Had it been, then the board would never be authorized to rule in favor of an employer on a change-in-condition claim without the concurrence of the claimant and/or his treating physician.

Although the evidence in this case did not demand a finding that the claimant was able to return to full-time work at his former job (see generally Hopper v. Continental Ins. Co., 121 Ga. App. 850 (1) (176 SE2d 109) (1970)), we conclude that the board’s stated rationale for rejecting the employer/insurer’s change-of-condition claim was unclear at best and at worst reflected the application of an improper legal standard. Accordingly, the judgment of the superior court is reversed with direction that the case be remanded to the board for re-determination. Accord Carrollton Coca-Cola Bottling Co. v. Brown, 185 Ga. App. 588, 594 (365 SE2d 143) (1988).

Judgment reversed with direction.

Birdsong and Beasley, JJ., concur.


text:
    77875.
    HARRIS v. THE STATE.
    (379 SE2d 600)
   Pope, Judge.

Defendant appeals from his convictions and sentences for the offenses of reckless driving, improper U-turn, leaving the scene of an accident, operating a motor vehicle with an expired license and aggravated assault.

1. Defendant first asserts the general grounds, arguing that the evidence against him was insufficient because the testimony of the State’s witnesses differed from that given by witnesses for the defense, specifically as to whether defendant or someone else was driving the car that hit the victim’s car, and whether or not the defendant threatened the victim with a knife or merely threatened to slash her tires.

Decided February 28, 1989.

Lee Payne, for appellant.

John M. Ott, District Attorney, J. Ellis Millsaps, Assistant Dis trict Attorney, for appellee.

“ ‘It is the function of the jury to determine the credibility of witnesses and to weigh and resolve any conflicts in the testimony. This court must view the evidence in a light most favorable to the jury’s verdict. (Cit.) Viewing the evidence in that light, we are satisfied that any rational trier of fact could have found [defendant] guilty beyond a reasonable doubt. (Cit.); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).’ Blackman v. State, 178 Ga. App. 88 (1) (342 SE2d 24) (1986).” Hendrix v. State, 186 Ga. App. 665, 666 (368 SE2d 181) (1988).

2. Defendant also argues that the trial court erred by expressing its opinion as to the credibility of the witnesses and by limiting the defendant’s right of cross-examination. We have examined the record as to each incident complained of and find that the trial court neither intimated nor expressed an opinion as to the witness’ credibility nor did it improperly limit defendant’s right to a thorough and sifting cross-examination of the witness. On the contrary, in each instance complained of defense counsel’s questions and remarks to the witness were clearly inappropriate, and the trial court acted properly in disallowing the question and admonishing counsel for his improper remark.

3. Likewise, we find no merit to defendant’s contention that the trial court improperly allowed the State to pose leading questions on re-direct examination of the victim. The record shows that the court overruled defendant’s objection to the question asked, but instructed the State to “simply ask [the witness] what [the defendant] said when he got out of the car.” Thus, the court did not allow the State to use leading questions in examining the witness. Moreover, inasmuch as the witness simply reiterated testimony previously given on direct, we fail to see, and defendant has failed to show, how he has been harmed by the court’s ruling.

4. Lastly, we find that the trial court did not err in finding inadmissible the evidence defendant sought to introduce concerning charges brought against and punishment received by other participants in the incident forming the basis of the charges against the defendant.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    77211.
    CENTRAL OF GEORGIA RAILROAD COMPANY v. GEORGIA PORTS AUTHORITY.
    (379 SE2d 540)
   Beasley, Judge.

Blackwell, an employee of the appellant railroad, was injured when he attempted to remove a gangboard left between a warehouse platform and a freight car in the Ocean Terminal facilities of the appellee Ports Authority. Blackwell sued the railroad under the Federal Employers’ Liability Act. The railroad brought a third-party complaint against the Authority pursuant to an agreement made in 1958 when the facility was sold to the Authority. Under it, the railroad was to perform all necessary switching service on the existing tracks, which were to be maintained by the Authority, and the Authority was to indemnify the railroad against any and all claims for damage to person or property arising from the operation of the switching services “excepting loss, damage, injury or homicide resulting from the sole negligence of the [railroad].”

Blackwell’s claim was settled by the railroad. The Authority moved for summary judgment, contending that the indemnity agreement did not apply because the parties had modified it by adopting a common operating practice rendering the indemnity inapplicable when a railroad employee undertook to remove a gangboard left by Authority personnel so as to obstruct freight car movements. The court denied summary judgment. It held that issues of fact existed as to the parties’ intention regarding any implied conditions in the indemnity agreement, specifically as to whether or not a procedure for removal of gangboards had been established.

After extensive discovery the railroad sought summary judgment, asserting that violation of the operating practice for removal of gangboards did not nullify the indemnity agreement. The court again denied summary judgment, ruling that a question of fact remained as to the parties’ intent to modify the indemnity agreement. The railroad’s application for immediate review was certified to this court and granted.

The evidence was undisputed that Blackwell was working as a switchman on a switch engine crew for the railroad on the evening shift, under an order from the Authority to switch out empty boxcars from a track adjacent to the platform of a warehouse. It was the Authority’s responsibility prior to issuing this order to be certain that the cars were clear of all obstructions, including any gangboards it may have used in unloading the boxcars. This night, Authority personnel negligently failed to remove a gangboard from one of the freight cars. It was Blackwell’s assigned responsibility to check the cars to make sure they were clear for switching, but he did not detect the gangboard and signaled the train engineer to couple the cars. As the train was moving Blackwell heard a noise and ordered the engineer to stop. Upon checking, Blackwell found the gangboard leaning against the side of a freight car. It was 11:00 p.m. and no Authority personnel were in the area to move the gangboard, so Blackwell attempted to shove it clear. In the process it fell on him causing permanent injury.

The Authority’s general manager deposed that the Authority was responsible for clearing all gangboards from freight cars before giving orders to the railroad to switch cars, but that it failed to clear the gangboard; and that the long-standing “common practice” in such cases, although not written, was that the railroad would not move the gangboard but would call the Authority to move it, and if no one was available the order to switch out the cars would not be executed. A former railroad superintendent testified that the railroad had a written operating rule that no freight cars would be switched until all obstructions, including gangboards, were cleared; and that acting “from the practical standpoint” gangboards had been moved during the night shift by the railroad employees when no Authority personnel were available, to clear the track and enable the Authority’s morning crews to proceed with their work schedule.

There was no evidence that these practices were intended by either the railroad or the Authority to modify the indemnity agreement. The Authority concedes this point. It argues that evidence of the procedures undertaken by the parties in violation of the switching agreement is evidence of the negligence of the non-complying party, which should be considered by the factfinder together with other evidence of negligence.

To defeat the indemnity agreement, the Authority must establish that Blackwell’s injuries resulted “from the sole negligence” of the railroad. If not, the indemnity applies regardless of the relative negligence of the Authority or its liability to Blackwell. The indemnity is enforceable even if the Authority played no part in the chain of causation so long as the injury did not result from the sole negligence of the railroad.

As stated by this court in a prior decision concerning the very same agreement: “It is clear the intent of the parties was to save the railroad harmless for personal loss of railroad property as well as from third-party claims arising out of the railroad operations on the authority property while carrying out the authority’s switching requirements. The only limitation to the authority’s liability [is] where the loss or injury would be as the result of the sole negligence of the railroad with no contributing negligence by the authority.” Ga. Ports Auth. v. Central of Ga. R. Co., 135 Ga. App. 859, 864 (219 SE2d 467) (1975).

Decided February 14, 1989

Rehearing denied March 1, 1989

Miller, Simpson & Tatum, William F. Hinesley III, John B. Miller, for appellant.

Chamlee, Dubus, Sipple & Walter, George H. Chamlee, Michael J. Bowers, Attorney General, Marion O. Gordon, First Assistant Attorney General, J. Robert Coleman, Daniel M. Forrnby, Senior Assistant Attorneys General, for appellee.

Consequently, enforcement of the indemnity provision turns exclusively on whether Blackwell’s injury resulted from the sole negligence of the railroad. See Stafford Enterprises v. American Cyanamid Co., 164 Ga. App. 646 (297 SE2d 307) (1982) and cases cited. Pretermitting any question of whether Blackwell’s negligence can be imputed to the railroad (see in this regard Radford v. Seaboard Coast Line R. Co., 122 Ga. App. 763, 764 (2) (178 SE2d 774) (1970)), the fact remains that there was undisputed evidence of negligence on the part of the Authority in failing to remove the gangboard. “[I]f the loss or injury is attributable, even partly, to the negligence of the indemnitor, the obligation to indemnify arises. [Cit.]” Charter Bldrs. v. Sims Crane Svc., 150 Ga. App. 100, 101 (1) (256 SE2d 678) (1979); Stafford Enterprises, supra at 649.

There being no other permissible conclusion, summary adjudication in favor of the railroad was demanded.

Judgment reversed.

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


author: Sognier, Judge. Deen, Presiding Judge,

text:
    77416.
    77417.
    77418.
    77419.
    77420.
    77421.
    JACOBS et al. v. TAYLOR et al. JACOBS et al. v. MURRAY et al. JACOBS et al. v. STARRETT et al. TAYLOR et al. v. DELATORRE. MURRAY et al. v. DELATORRE. STARRETT et al. v. DELATORRE.
    (379 SE2d 563)
   Sognier, Judge.

The children of Marjorie Love Murray, William J. Quinlan, and Roma L. Quinlan, hereinafter referred to collectively as “Taylor,” brought suit against seven psychiatrists who had treated or had administrative contact with Ronald Edwin Murray, the murderer of their parents, seeking damages for the doctors’ alleged negligence in allowing Murray to be released, in failing to exercise proper control over Murray, in failing to warn the victims of Murray’s release, and in failing to comply with the provisions of OCGA § 37-3-1 et seq. so as to be entitled to the good faith immunity set forth in OCGA § 37-3-4. The trial court denied the motions for summary judgment made by Doctors Louis Jacobs, Lorenzo Lecumberri, and Simon Speriosu, and this court granted their applications for interlocutory appeal in Case Nos. 77416-77418. Cross-appeals were taken in Case Nos. 77419-77421 from the grant of summary judgment in favor of the remaining four doctors, but the notices of appeal in those cases specified the judgment only insofar as Dr. Jose M. Delatorre is concerned. While Taylor acknowledges that no appeal is taken from the grant of summary judgment as to one of the remaining doctors, Taylor included arguments addressing the remaining two doctors in the enumerations and briefs before this court, despite the failure to name them in the notices of appeal. OCGA § 5-6-37. However, in view of the peculiar factual circumstances in these appeals which result in our holdings being directly applicable to the remaining doctors, one a clinical director at Central State Hospital and the other the superintendent at Georgia Regional Hospital, we necessarily address Taylor’s arguments in regard to these two doctors as if Taylor had properly presented them as cross appellees in Case Nos. 77419-77421.

The record reveals that Ronald Edwin Murray, having been found not guilty by reason of insanity of the murder of Thomas Allen, was committed to Central State Hospital where he was treated by Jacobs beginning in September 1978. Under the version of OCGA § 17-7-131 applicable to Murray, he was entitled to be released when “the court which committed him finds and determines that [he] does not meet the criteria for civil commitment under Chapter 3 or 4 of Title 37.” Former OCGA § 17-7-131 (a). In May 1979, Murray filed a writ of habeas corpus seeking to be released from the hospital. Jacobs and the clinical director at Central State Hospital testified at the hearing on the petition, stating as their medical opinions that Murray did not meet the criteria for civil commitment under the version of OCGA § 37-3 et seq. then applicable, specifically OCGA § 37-3-1 (12). Pursuant to former OCGA § 17-7-131 (b), the Baldwin County Superior Court ordered Murray’s release from Central State Hospital.

In March 1980, Murray had himself admitted as a voluntary patient to Georgia Regional Hospital in Savannah. After initially being treated by the doctor no longer involved in this suit, Murray was treated by Lecumberri from mid-March until Murray left the hospital without permission in early April 1980. In his affidavit, Lecumberri stated that because Murray was in the hospital on a voluntary basis, he could be brought back to the hospital on an involuntary basis only if he met the civil commitment criteria. Lecumberri determined that Murray did not meet the criteria for involuntary commitment, could not be brought back to the hospital involuntarily, and so completed an administrative discharge of Murray on April 8, 1980, after which Lecumberri had no further contact with Murray. On April 2, 1980, after the time Murray left the hospital, Murray allegedly threatened to kill his former wife, Marjorie Love Murray. When Murray returned to the hospital on April 14th to collect his belongings, Speriosu was contacted by the hospital’s admissions office to do a psychiatric examination of Murray. In his affidavit Speriosu averred that at that time he found no sign of acute psychosis or suicidal or homicidal ideations in Murray and thus determined that Murray was not dangerous to himself or to others. He therefore determined that Murray did not meet the criteria for civil commitment and should not be admitted to the hospital on an involuntary basis. Speriosu had no further contact with Murray. The records at Georgia Regional Hospital indicate that because the staff was aware Murray had previously been found not guilty of murder by reason of insanity, calls were made to a local judge, Judge Robert Cook, who requested Murray be held, and that Murray left the hospital in the company of a deputy sheriff, who took him to jail. The records also reveal that the superintendent of the hospital during this time, who stated in his affidavit that he had no contact with Murray, could not recall reviewing Murray’s record, and neither provided care nor assisted in the diagnosis, treatment, admission or discharge of Murray, did sign a form letter addressed to Judge Cook in which the superintendent stated that Murray was evaluated by hospital staff and the recommendation made by the staff was that hospitalization was not needed at that time, so Murray was released to the municipal court deputies. It does not appear, however, that Murray was incarcerated or otherwise detained by the authorities after his departure from the hospital.

In August 1980, Murray was arrested in Chatham County on charges of making terroristic threats against his former wife stemming from the April 2, 1980 incident. In October 1980, the Chatham County Superior Court, determining that the jail’s facilities were not adequate to care properly for Murray, ordered Murray admitted to Central State Hospital, Forensic Services Division, to be treated until he had progressed sufficiently to be returned to the jail. Delatorre evaluated Murray upon his admission and found him to be psychotic, delusional, and disorganized. Delatorre recommended Murray be transferred to a treatment ward, where he came under the treatment of Jacobs, the ward physician. In January 1981, Jacobs recommended that Delatorre reevaluate Murray, who did so and determined Murray was sufficiently improved to be released back to the custody of the Chatham County sheriff’s office pursuant to the court’s order. Murray was released to the Chatham County jail on January 9, 1981, which is the last date any of the doctors in this case had any contact with Murray. After the superior court found Murray competent to stand trial on the terroristic threats charge, Murray was tried, acquitted, and released from custody in April 1981. On June 12, 1981, Murray murdered Taylor’s decedents.

1. The trial court erred by denying summary judgment in favor of Jacobs, Lecumberri and Speriosu, and acted properly by granting summary judgment in favor of Delatorre and the remaining doctors. Although Taylor argues the doctors are liable for their negligent or recklessly indifferent examinations, diagnoses and treatments rendered Murray, even assuming the care given Murray was negligent and that the doctors knew it was inadequate, the gravamen of Taylor’s complaint is that the doctors breached their duty to control Murray by negligently releasing or allowing him to be released, and it is on this issue that Taylor’s complaints fall.

(a) As to Murray’s September 1978—May 1979 commitment at Central State Hospital, under the law in effect at the time of the facts in this case, “[a] person committed to [a facility such as Central State Hospital] pursuant to this Code section shall not be released from confinement unless and until, after notice and hearing, the court which committed him finds and determines that the person does not meet the criteria for civil commitment,” in this instance under OCGA § 37-3. (Emphasis supplied.) Former OCGA § 17-7-131 (a). The judge, as the jury and finder of fact, was not bound by the opinions of expert witnesses such as Jacobs and the clinical director who testified at Murray’s habeas corpus hearing. See Moses v. State, 167 Ga. App. 556, 558-560 (307 SE2d 35) (1983). Indeed, the record reveals that the Baldwin County Superior Court had rejected an earlier application for Murray’s release in which Jacobs had likewise testified that Murray did not meet the criteria for civil commitment. Taylor argues that the courts are generally not in a position to evaluate objectively the opinions of psychiatrists and cites Hicks v. United States, 511 F2d 407, 415-416 (DC Cir. 1975) for the proposition that a third party’s suit against a psychiatrist for injuries incurred by a court-released patient is not barred by the intervening court order where the evidence entertained by the court included testimony by psychiatrists based on their negligent treatment and/or evaluation of the patient. In Hicks the hospital was found negligent in its failure to transmit adequate information to the court concerning the patient’s mental condition, in that the court was informed in unqualified language that the patient was “recovered.” Id. at 415-417. No such “unqualified recovery” language was presented to the Baldwin County Superior Court by Jacobs and the clinical director. Rather, Jacobs and the clinical director both told the Baldwin County Superior Court that Murray, diagnosed as schizophrenic, paranoid type, was in remission; that Murray was able to care for his own physical health and safety outside a hospital without creating an imminently life-endangering crisis; and that Murray had not exhibited any recent overt acts or recently expressed threats ofviolence which presented a probability of physical injury to himself or to other persons. Hicks is thus factually distinguishable from the case sub judice. Furthermore, this court will not read the statutory responsibility placed on a committing court under OCGA § 17-7-131 as consisting merely of “rubberstamping” the opinions of expert witnesses. Rather, the ultimate decision to release Murray was that of the superior court, and not that of Jacobs and the clinical director. See Clark v. State, 245 Ga. 629, 630 (266 SE2d 466) (1980); Dubose v. State, 148 Ga. App. 9 (251 SE2d 15) (1978); Roberts v. Grigsby, 177 Ga. App. 377, 382 (339 SE2d 633) (1985) (Deen, P. J., concurring specially).

(b) As to the January 9, 1981 release of Murray from Central State Hospital back to the custody of the Chatham County sheriff’s department, the record reveals that Jacobs and Delatorre acted pursuant to court order by treating Murray until he had “progressed sufficiently to be returned to the Chatham County Jail. ...” There is no evidence that Jacobs or Delatorre negligently performed their court-ordered task or that they were charged to perform any tasks above and beyond that contained in the court’s order, and thus we reject Taylor’s argument that the doctors can be held to have incurred liability for taking “the most narrow of all possible interpretations of the order under which Murray had been sent” to Central State Hospital. The release of Murray uncontrovertedly did not constitute a release of the man into the community in general or even into a place where Murray had access to Taylor’s decedents. In Bradley Center v. Wessner, 250 Ga. 199 (296 SE2d 693) (1982), the Supreme Court held that to state a cause of action based on the breach of a duty to control the conduct of third persons to prevent them from causing physical harm to others, the essential elements are the traditional tort principles of: “ ‘(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.’ [Cit.]” Id. at 200. However, where the legal duty placed on the doctors was to treat Murray until he had progressed sufficiently to be returned to jail, and where their treatment accomplished that precise goal, we do not agree with Taylor that the law in general placed a broader and more burdensome duty on these doctors than the one they were given pursuant to court order.

(c) Unlike the other two releases at issue in this case, the record fails to reflect that Murray’s release from his voluntary stay at Georgia Regional Hospital was sanctioned by court order. What the record does show is that Murray was a patient at the hospital for barely over a month, that he was at liberty for several months before he was indicted and placed into custody in regard to the terroristic threats charge, that he was then evaluated and treated by doctors at another hospital, that he was found competent to stand trial by a court of this state, that he was tried and acquitted of the charge by a jury of his peers in April 1981, and that he was again at liberty for roughly six weeks before he murdered Taylor’s decedents a year and two months after his last contact with the doctors at Georgia Regional.

Taylor would have this court hold that once a duty to control arises, all temporal considerations are irrelevant and that no amount of time or intervening experiences can abrogate the liability of a psychiatrist who breaches his or her duty to control a mentally ill patient. However, the Supreme Court stressed in Bradley Center, supra, that it was not creating a “new tort” but instead was applying traditional tort principles of negligence. Id. at 202. Thus, Taylor’s argument that the fourteen month interval between Murray’s release and the murders as well as Murray’s intervening incarceration, treatment, trial, and acquittal are of no consequence is not well taken since it is well established that “ ‘ “[t]o state a cause of action for negligence, there must be a legally attributable causal connection between the defendant[s’] conduct and the alleged injury.” [Cits.] The inquiry is not whether the defendant^’] conduct constituted a cause in fact of the injury, but rather whether the causal connection between that conduct and the injury is too remote for the law to countenance a recovery. [Cit.] In Georgia, questions of negligence and proximate cause are ordinarily reserved for the jury, but in plain and undisputed cases the court may make a determination as a matter of law. [Cits.]’ [Cit.]” Southern Bell Tel. &c. Co. v. Dolce, 178 Ga. App. 175, 176 (1) (342 SE2d 497) (1986).

“ ‘In order to hold the [doctors] liable, it must be shown “either that the act complained of was the sole occasion of the injury, or that it put in operation other causal forces, such as were the direct, natural, and probable consequences of the original act, or that the intervening agency could have reasonably been anticipated or foreseen by the ([doctors] as the) original wrongdoer[s].” ([Cit.]’ [Cit.])” Stapleton v. Amerson, 96 Ga. App. 471, 472 (2d) (100 SE2d 628) (1957). “Negligence is not actionable unless it is the proximate cause of the injury complained of. [Cits.] ‘The question of proximate cause depends upon the facts of each particular case, and, in ascertaining in a particular case what was the proximate cause of the injury, the conclusion reached depends upon whether the injury alleged was such a natural and probable consequence, under the circumstances of the case, as that it might and ought to have been foreseen by the wrongdoer as likely to ensue from his act.’ [Cits.] ‘(A) wrongdoer is not responsible for a consequence which is merely possible, according to occasional experience, but only for a consequence which is probable, according to ordinary and usual experience. The natural and probable consequences are those which human foresight can foresee, because they happen so frequently that they may be expected to happen again. The possible consequences are those which happen so infrequently that they are not expected to happen again. A man’s responsibility for his negligence must end somewhere.’ [Cit.]” (Emphasis supplied.) Rustin Stamp &c. v. Ray Bros., 175 Ga. App. 30, 31-32 (1) (332 SE2d 341) (1985).

“All the past is a part of the cause of every present effect. The courts can deal with that great body of cause only as it relates to human activity; and a particular court dealing with a particular case must as a practical necessity isolate the activities near by to the effect in question, and from these must make the juridic determination of responsibility. . . . [T]o judge the transaction according to the natural probabilities which men’s minds take as the basis for passing judgment upon the course of human affairs, it may appear that causes other than the negligent one referred to so preponderated in bringing about the result as to lead us to say, from a human point of view, that the injury was just as likely to have ensued (with only its details somewhat varied, perhaps) if the negligent thing had not occurred. In such cases we exempt the author of the negligence from liability.” Atlantic Coast Line R. Co. v. Daniels, 8 Ga. App. 775, 779-780 (70 SE 203) (1911).

We therefore hold that the trial court properly granted summary judgment in favor of the four doctors in Case Nos. 77419-77421 and erred by denying summary judgment in favor of Jacobs, Lecumberri and Speriosu in Case Nos. 77416-77418 on Taylor’s allegation that the doctors breached their duty to control Murray.

2. “ ‘To prevail on motion for summary judgment, the movant has the burden to produce evidence which conclusively eliminates all material issues in the case.’ [Cit.]” (Emphasis supplied.) Kohlmeyer & Co. v. Bowen, 130 Ga. App. 386, 387 (4) (203 SE2d 630) (1973). Although Taylor’s arguments on appeal are directed to the allegation that the doctors breached a duty to control Murray, Taylor also alleged in the complaints that the doctors breached a duty to warn Taylor’s decedents, Marjorie Murray, William Quinlan and Roma Quinlan, about Murray’s murderous tendencies. As to Marjorie Murray, the record supports Taylor’s assertion that certain of the doctors were aware that the hostilities Murray manifested were directed toward his former wife. However, while the record does not indicate that any of the doctors specifically warned Marjorie Murray, the record does reveal that Marjorie Murray was fully cognizant of the danger Murray presented and had instituted criminal proceedings based on Murray’s alleged statements in April 1980 that he would kill her.

“There is no duty to warn of the obvious, or of that which the plaintiff already knew or should have known. [Cits.]” Roberts v. Bradley, 114 Ga. App. 262, 263 (150 SE2d 720) (1966). Construing the evidence most strongly on behalf of Taylor, it appears that even if certain doctors at one point in time had a duty to warn Marjorie Murray about the danger her former husband posed, Marjorie Murray’s own subsequently acquired knowledge of that precise danger absolved the doctors of any liability in their failure to so warn her. “[I]t is hornbook law that an action in tort requires one to allege a duty, a breach of that duty, and damages proximately flowing from that breach.” Green Property Corp. v. O’Callaghan &c., 177 Ga. App. 686, 687 (1) (340 SE2d 652) (1986). Since the doctors were not legally required to warn Marjorie Murray of the precise danger to which she was already fully aware, the doctors were entitled to summary judgment on that allegation in Taylor’s complaints.

It does not appear of record that William and Roma Quinlan were related to Murray, or that they were even acquainted with him. Further, while it appears Murray made threats towards unspecified others, the only specific person Murray ever expressed hostilities toward was his former wife, Marjorie Murray. No evidence is present in the record that the Quinlans were foreseeable or readily identifiable targets of Murray’s threats. We are thus persuaded by the reasoning in Thompson v. County of Alameda, 614 P2d 728, 732-736 (SC Cal. 1980), not to impose a blanket liability on the doctors for failing to warn members of the general public, such as the Quinlans, of the risk posed by Murray, a patient with a history of violence who made generalized threats at some time during his treatment by the doctors.

3. Our holdings above render it unnecessary for us to determine whether the doctors were entitled to immunity under OCGA § 37-3-4 or any other provision.

Judgments affirmed in Case Nos. 77419-77421; judgments reversed in Case Nos. 77416-77418.

Carley, C. J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

Other than acknowledging that Rustin Stamp &c. v. Ray Bros., 175 Ga. App. 30, 31-32 (1) (332 SE2d 341) (1985), cited in the majority opinion is without precedential value, I concur fully with the majority opinion.

Decided February 17, 1989

Rehearing denied March 1, 1989

Michael J. Bowers, Attorney General, H. Perry Michael, First Assistant Attorney General, William C. Joy, Senior Assistant Attorney General, Mary Foil Russell, Assistant Attorney General, Thomas J. Mahoney, Jr., Special Assistant Attorney General, for Jacobs et al.

Karsman, Brooks, Painter & Callaway, James L. Drake, Jr., David H. Connolly, Jr., Edward M. Hughes, for Taylor et al.