text:
    A89A1548.
    LIVINGSTON v. THE STATE.
    (388 SE2d 406)
   Beasley, Judge.

Defendant appeals his conviction under a multi-count indictment of burglary (OCGA § 16-7-1), possession of a firearm during the commission of the felony of burglary (OCGA § 16-11-106 (b) (2)), and possession of a knife more than three inches long during the commission of the felony of burglary (OCGA § 16-11-106 (b) (2)). He enumerates as error the refusal to grant his motion for mistrial after improper argument by the State and the conviction based on insufficient evidence.

1. Defendant’s sister was charged with him, but they were tried separately. During argument to the jury, the prosecutor stated with reference to the indictment: “you’ll see where Laura Livingston entered her plea of guilty to the charge as recited in the indictment, the charge of burglary. She, even though she’s absent, has testified by way of her plea of guilty to burglary, with the intent to commit a theft therein.” At the close of the State’s argument defendant moved for a mistrial based upon prosecutorial misconduct. The objections were that the prosecuting attorney had commented on the fact that there was a codefendant, that the codefendant had entered a guilty plea and admitted the crime, and that by doing so she testified to the fact that there was a burglary (which defendant denied). Defendant urged that there were no facts or evidence to support the argument.

When the trial court indicated that the argument was improper but reserved ruling and proposed to interrogate the jury about it, defense counsel objected that such action would reinforce the matter in the jurors’ minds. The court then informed the jury that the prosecutor’s argument was improper and questioned each juror individually as to whether the comments by the prosecutor could be disregarded and a decision could be made based strictly upon the evidence submitted. After receiving an affirmative answer from all the jurors the trial court overruled the motion for mistrial. Defense counsel then repeated his position that “no amount of curative instructions from the Court is going to remove that from their mind,” and asked if he could go into, to speculate, why the sister may have pled guilty to burglary. The court refused because this would allow argument about something not in evidence.

Despite reasserting his contention, defendant did not renew his motion for mistrial. After a motion for mistrial has been made and the trial court has promptly given curative instructions to the jury, in order to preserve the issue for appellate review defendant must renew the motion. Williamson v. State, 188 Ga. App. 307, 308 (2) (372 SE2d 685) (1988); Loaiza v. State, 186 Ga. App. 72, 73 (2) (366 SE2d 404) (1988); Chandler v. State, 143 Ga. App. 608, 609 (2) (239 SE2d 158) (1977). Having failed to invoke a further ruling defendant waived the denial of the motion as appellate error. Brown v. State, 187 Ga. App. 347 (1) (370 SE2d 203) (1988).

Even if defendant’s protestation be considered a renewal of the motion for mistrial, denial of the motion was not error. The trial court’s prompt instructions to the jury and interrogation of each individual juror were sufficient to assure the absence of any harmful effect of the prosecutor’s statement. The trial court did not abuse its discretion by refusing to grant a mistrial. High v. State, 153 Ga. App. 729, 731 (2) (266 SE2d 364) (1980).

2. Defendant admitted unauthorized entry and other elements of burglary, denying only the element of intent to commit a felony or theft. This was his sole defense. He testified that he was paid $500 to activate the building’s alarm system; that he cut the telephone line in an effort to accomplish this scheme; that when this did not work he entered the building and severed the wires to the alarm box. When the prosecuting attorney sought to elicit the source of the money and purpose of defendant’s activities in that regard, defendant invoked his rights under the Fifth Amendment to the U. S. Constitution and was permitted to refuse to answer further questions in that area.

“On appeal of a criminal conviction, . . . the presumption of innocence no longer prevails”; instead, the evidence is construed in favor of the verdict. Jones v. State, 188 Ga. App. 398, 399 (373 SE2d 86) (1988); McGinnis v. State, 183 Ga. App. 17, 18 (1) (358 SE2d 269) (1987). The issue of intent is a jury question, under the facts and circumstances proved. Wells v. State, 144 Ga. App. 841, 842 (242 SE2d 752) (1978). Generally the State “ ‘must, of necessity, rely on circumstantial evidence in proving intent.’ ” Kinney v. State, 155 Ga. App. 95 (1) (270 SE2d 209) (1980). When defendant furnishes an explanation, whether this constitutes a reasonable hypothesis other than that of defendant’s guilt must be determined by a jury. Adams v. State, 187 Ga. App. 340, 344 (1) (370 SE2d 197) (1988); Winders v. State, 258 Ga. 878, 882 (375 SE2d 862) (1989); Lay v. State, 184 Ga. App. 655, 656 (1) (362 SE2d 458) (1987) [physical precedent].

Decided November 13, 1989.

Jack E. Carney, Jr., for appellant.

Dupont K. Cheney, District Attorney, David C. Walker, Assistant District Attorney, for appellee.

This court has “no yardstick by which to ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of 12 jurors of rational mind.” Adams, supra at 344. Because the jury resolves issues of credibility, including defendant’s explanation, as well as conflicts in the evidence, once the determination has been made, an appellate court cannot substitute its judgment for that of the jury. Id. at 344. The verdict was not insupportable as a matter of law and the evidence was sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Prothro v. State, 186 Ga. App. 836, 837 (1) (368 SE2d 793) (1988); Lay v. State, supra.

Argument as to the insufficiency of the evidence to support counts 5 and 6 (possession of a firearm and a knife) is predicated upon a conclusion of the insufficiency of the burglary evidence, so it also fails.

Judgment affirmed.

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


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A89A1607.
    BAILEY v. THE STATE.
    (388 SE2d 408)
   Birdsong, Judge.

Gregory Bailey was indicted for vehicular homicide, driving without a license, possession of marijuana, and, in a third count, fleeing the scene of an accident and failing to “render reasonable assistance to [the] injured passenger.” The charges involve the death of appellant’s passenger, Robert Gregory Harkins on August 25, 1988, during an apparent “joy ride” which ended when a bottle was thrown onto the roadway by appellant and appellant swerved to avoid it, crashing the vehicle against a tree. Robert Gregory Harkins was pinned between the tree and the vehicle. Two female passengers testified for the State that appellant did not go “get help for Greg” (who they thought was bleeding and unconscious but still alive) because, appellant explained, he had no driver’s license; whereupon appellant left into the nearby woods and the two females went to get help. Appellant was arrested a quarter of a mile from the scene, moving along the tree line area of a golf course.

Decided November 13, 1989.

Bailey & Bearden, J. Lane Bearden, for appellant.

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

Appellant was acquitted of the homicide charge, but convicted of the others, which are misdemeanors. On appeal he alleges only that he should have received a directed verdict of acquittal because the State “failed to prove the allegation of the indictment that appellant failed to render reasonable assistance to the injured passenger Robert Gregory Harkins.” Held:

In support of his contention that the State did not prove its allegations, appellant argues only his evidentiary version of what occurred, which version exonerates him of all wrong and contradicts the other evidence offered by the State. Viewing all the evidence in favor of the jury’s view of it, we find the evidence was amply sufficient to enable a reasonable trier of fact to find appellant guilty beyond a reasonable doubt of leaving the scene and failing to render reasonable assistance. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

The record is not clear as to the disposition of the allegation that appellant “failed to render reasonable aid,” but it is clear that, as to that count of the indictment, he was only sentenced to twelve months for “leaving the scene.” The evidence supports both findings, however; if he was not sentenced additionally for failing to render reasonable assistance, appellant had the entire benefit of the matter. Since the evidence strongly supported the verdict rendered, appellant assuredly was not entitled to a directed verdict of acquittal. See Taylor v. State, 252 Ga. 125 (1) (312 SE2d 311).

Judgment affirmed.

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


author: Benham, Judge.

text:
    A89A0881.
    FULTON-DeKALB HOSPITAL AUTHORITY v. ALEXANDER et al.
    (388 SE2d 372)
   Benham, Judge.

Appellees brought suit against appellant for medical malpractice. Appellant sought summary judgment on the basis of the doctrine of charitable immunity. In opposition, appellees invoked the paying patient exception to the doctrine. This appeal, pursuant to our grant of appellant’s application for interlocutory review, is from the denial of summary judgment.

It is undisputed that the patient’s medical expenses were paid by workers’ compensation benefits. Compare Patterson v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 167 (384 SE2d 205) (1989). It is also undisputed in this case that Grady, the hospital operated by appellant, is a charitable institution entitled to the protection of the charitable immunity doctrine. At issue is whether the paying patient exception can ever be applied so as to permit a malpractice suit against appellant.

1. “[I]f one is received as a patient at a charitable hospital, is ¿ble to pay, and does pay for board, medical attention, and other services, and there is an injury on account of the carelessness, negligence, or incompetence of a nurse or servant of the institution, a petition alleging damages on account of injuries so arising is not subject to demurrer in so far as it seeks to recover from the institution and to subject to the judgment its funds derived strictly from such non-charitable pay patients. ...” Morton v. Savannah Hosp., 148 Ga. 438 (5) (96 SE 887) (1918).

Appellant insists that Morton is to be read as holding that the paying patient exception applies only to hospitals operated primarily for pecuniary gain. We do not read Morton so restrictively. The Supreme Court in that case was answering a series of questions certified to it by this court. The third question concerned a hospital chartered as a charitable institution but operated primarily for pecuniary gain. The Supreme Court indicated that the paying patient exception would apply under those circumstances. The fourth question concerned a hospital chartered as and primarily maintained as a charitable institution, and the Supreme Court incorporated in its answer the exception set out in answering the third question — the paying patient exception. If there was ambiguity in those responses, it was dispelled in the answer to the fifth question in which the Supreme Court made it unmistakably clear that the exception applies equally to both types of institution.

We hold, therefore, that the paying patient exception to the charitable immunity doctrine applies to appellant. Accordingly, we find no error in the trial court’s refusal to rule otherwise.

2. Appellant also contends that because all the money which comes into its coffers is expended in furtherance of its mission to provide medical , services to the disadvantaged, it has no non-charitable assets which could be subjected to a judgment in appellee’s favor and, further, that appellee failed to allege the existence of such assets. However, Morton permits a judgment to be satisfied from the income derived from paying patients, not “assets.” The complaint here alleges the existence of such income, and since it is not disputed that appellees’ decedent’s expenses were paid, it is obvious that there is income derived from paying patients. Accordingly, we find no merit in either contention concerning the source from which any judgment could be satisfied.

Decided October 31, 1989

Rehearing denied November 14, 1989.

Alston & Bird, Eugene T. Branch, Judson Graves, Paul J. Quiner, for appellant.

Freeman & Hawkins, Paul M. Hawkins, Patrick A. Lloyd, for appellees.

Judgment affirmed.

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


text:
    A89A1006.
    ESTFAN et al. v. POOLE.
    (388 SE2d 373)
   Birdsong, Judge.

Fred J. Estfan, Regent Realty, Inc., and Investors Services, Inc., appeal from a judgment, based on a jury verdict, against them in favor of Donald J. Poole, Jr. Poole sued the appellants to recover commissions he claimed to be owed from a project in Michigan under his written employment contract with Regent Realty and from a project in New York under an oral contract with Investors Services, and to recover damages from Estfan for tortious interference with Poole’s contract rights under those contracts. Estfan wholly owned both Regent Realty and Investors Services, and Poole claims that Estfan deprived him of commissions owed by both companies.

Appellants contended, however, that Poole was not entitled to a commission on the Michigan project because a payment Investors Services received was for management and litigation support and was not a real estate commission owed Regent Realty which would entitle Poole to a commission. They also denied that Poole was owed any commissions by Investors Services because they contended his agreement with Investors Services only entitled him to commissions based upon his actual work and they said he had done no work on either project. Further, they denied that Estfan improperly diverted any payment.

The jury found for Poole on all counts and awarded him damages of $9,100 against Investors Services on the New York project and of $145,000 against Regent Realty and Investors Services on the Michigan project. The jury also awarded Poole $42,517 in actual damages and $1 in punitive damages against Estfan for tortious interference with contract.

Appellants assert on appeal that the trial court erred by not directing a verdict in favor of Estfan and Regent Realty because there was no evidence that the Michigan project payment was a real estate commission. They contend the trial court erred by not granting a new trial because: there was no evidence supporting the verdict that the Michigan payment was a real estate commission; the verdict was decidedly and strongly against the weight of the evidence; the verdict was a legal impossibility under the facts; the verdict included amounts which allegedly Poole did not even claim; and the great weight of the evidence demonstrated there was no oral contract. They also allege the trial court erred by allowing Poole to interject the worldly estate and wealth of the defendants, by not charging the jury on accord and satisfaction as stated in one of appellants’ requested charges, and by not granting appellants’ motion for judgment n.o.v. Held:

1. First, we must remind counsel that Court of Appeals Rule 15 establishes the requirements for the structure and content of briefs filed in this court. Among those requirements are that the sequence of arguments should follow generally the order of the enumerations of error and the arguments shall be numbered accordingly (Rule 15 (c) (1)), and enumerated errors will be supported by specific references to the record or transcript. Rule 15 (c) (3). Further, enumerations of error not supported by citation of authority or argument are deemed abandoned. Rule 15 (c) (2). After a ten-page analysis of the evidence as they see it, appellants conclude a portion of the argument in their brief by saying: “We believe this part of the argument would support enumerations of errors 1 through 4.” Other than a reference to enumeration 4 some ten pages before, this constitutes appellants’ entire attempt to comply with Rule 15 (c) (3) on these enumerations of error. Although there is substantial question whether this complies with Rule 15, we will nevertheless consider those enumerations of error on their merits.

a. The first enumeration of error argues that the trial judge improperly denied a motion for directed verdict by Estfan and Regent Realty because allegedly there was no evidence the Michigan payment was a real estate commission. Poole argues that this enumeration should not be considered because appellants did not make a motion for a directed verdict before the trial court and therefore cannot complain that such a motion was denied. The question arises because appellants apparently first made their motions off the record in an informal conference and then made the motions on the record in an abbreviated form. We have examined the transcript and find that it shows that, at least as enumeration 1 is concerned, a motion was made and the grounds therefor stated. L. D. S. Social Svcs. Corp. v. Richins, 191 Ga. App. 695, 697 (382 SE2d 607). Accordingly, Poole’s initial argument is without merit, and we will consider whether the motion was properly denied. “A directed verdict ... is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.” (Emphasis deleted.) Union Camp Corp. v. Daley, 188 Ga. App. 756 (374 SE2d 329); OCGA § 9-11-50 (a). While appellants argue at length that Poole’s evidence was inferior to their evidence and that it was self-contradictory, the transcript shows evidence that the payment on the Michigan project was a real estate commission. Thus, it cannot be said that there was no conflict in the evidence or that the evidence demanded a verdict for appellants (Union Camp Corp. v. Daley, supra). Accordingly, the trial court properly denied the motion for a directed verdict.

b. Enumerations of error 2-4, as crafted and as argued in appellant’s brief, are too general and uncertain to present any appellate question other than the general grounds. Compare Haywood v. Wooden Peg, 174 Ga. App. 806 (1) (331 SE2d 109). However, as the general grounds appear to have been asserted, we will consider this issue during appellate review. OCGA § 5-6-48 (f). Any other contention is deemed abandoned because of failure to comply with Court of Appeals Rule 15 (c) (3).

c. Enumeration 2 asserts that the motion for new trial was erroneously denied because there was no evidence that the Michigan project payment was tortiously diverted by Estfan from Regent Realty to Investors Services. “ ‘[A] trial judge’s denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict. (Cit.)’ Ricketson v. Fox, 247 Ga. 162, 163 (1) (274 SE2d 556) (1981).” Mathis v. Dept. of Transp., 185 Ga. App. 658 (365 SE2d 504). The transcript discloses evidence that the payment in question was a real estate commission, that Estfan was the prime actor in deciding the means and terms of the payment, that the payment was not made to Regent Realty with which Poole had a written employment contract entitling him to a commission on the payment but to Investors Services where he had no written contract, and that appellants thereafter denied that Poole was entitled to a commission under his written contract. Therefore, there is evidence to support the verdict and the trial court did not err by denying the motion.

d. Enumeration 3 contends that the new trial motion was erroneously denied because the verdict that the Michigan payment was a real estate commission was decidedly and strongly against the weight of the evidence and thus failure to grant the motion was an abuse of the trial court’s discretion. This enumeration of error is likewise without merit. “ ‘ “Whether (the jury’s) verdict is contrary ... to its weight, or decidedly and strongly against its weight, is a question the law vests in the trial judge’s discretion. He may grant a new trial on these grounds, but this court has no such power. Where the trial judge approves the verdict, the sole question for determination by this court is whether there is any evidence sufficient to authorize it.” Adler v. Adler, 207 Ga. 394, 405 (61 SE2d 824).’ Southern R. Co. v. Garner, 101 Ga. App. 371, 373 (2) (114 SE2d 211).” Green v. Dillard, 176 Ga. App. 574, 575 (337 SE2d 55), overruled on other grounds, Kres v. Winn-Dixie Stores, 183 Ga. App. 854, 857 (360 SE2d 415). There is evidence supporting the verdict and the trial court did not err by denying the motion.

e. Enumeration 4 asserts that the trial court erred in denying appellants’ motion for a new trial “since verdicts against all three [defendants was a legal impossibility under the facts of this case.” No authority is cited for this proposition, and as there is evidence supporting the verdict against all three appellants and the verdict is not otherwise contrary to law, this enumeration also lacks merit. Mathis v. Dept. of Transp., supra.

2. In enumeration of error 5, appellants argue that the trial court erred by denying their motion for new trial because the verdict included an amount which Poole allegedly abandoned as not part of his claim. Although this contention was argued forcefully by appellants at trial, it is not supported by the transcript. The transcript shows that, while Poole did not always seek his share of the monthly management fee, this was not because he relinquished his claim to a portion of the fee. Poole claimed a share of the management fee and he also contended that the Michigan payment did not include amounts for the management fees. Since there is evidence that Poole did not give up this claim, this enumeration of error is without merit. Mathis v. Dept. of Transp., supra.

3. Appellants assert in enumeration 6 that the trial court erred by permitting Poole to present evidence concerning appellants’ wealth. Appellants correctly state the general rule that a party’s wealth is usually not admissible because such evidence is typically not relevant to any issue in the case. See, e.g., Northwestern Univ. v. Crisp, 211 Ga. 636, 641 (88 SE2d 26). Poole, however, contends that this case is one of the exceptions to the general rule since the evidence necessarily involved the issue of the diversion of the Michigan payment from one corporation to the other. See Weathers v. Cowan, 176 Ga. App. 19-20 (333 SE2d 921). There was no error. Questions concerning admissibility of evidence are vested in the trial court (Kilpatrick v. Foster, 185 Ga. App. 453, 457 (364 SE2d 588)), and unless the trial court has abused its discretion, this court will not interfere. Palmer v. State, 186 Ga. App. 892, 898-899 (369 SE2d 38). Further, the Georgia rule favors admissibility of relevant evidence. Southern Bell Tel. &c. Co. v. Coastal Transmission Svc., 167 Ga. App. 611, 618 (307 SE2d 83). Consequently, there was no abuse of discretion.

Moreover, had there been error, it was waived by appellants. The trial court initially excluded the evidence concerning the corporations’ assets because the issue was not raised in the pretrial order. Then, when appellants attempted to present evidence on the defense of accord and satisfaction, which also was not raised in the pretrial order, the trial court decided to permit the parties to amend the pretrial order to allow them to present evidence on these issues. The transcript shows that appellants consented to this procedure because they wanted to present evidence of an accord and satisfaction. Having agreed to the admissibility of the evidence on appellants’ assets, they cannot now complain of the trial court’s ruling. Whisnant v. State, 178 Ga. App. 742, 744 (344 SE2d 536).

4. In enumeration of error 7, appellants contend the trial court erred by not giving their requested charge on the defense of accord and satisfaction. The thrust of the requested charge was that if the jury found any accord and satisfaction, they “were obliged to render a verdict for the defendants.” Whether there was an accord and satisfaction is a question for the jury. Woodstock Rd. &c. Prop. v. Lacy, 149 Ga. App. 593, 594 (254 SE2d 910). An accord and satisfaction would result in a defendant’s verdict on all counts of the complaint only if the jury found that the terms of the new agreement required that verdict. The requested charge does not allow for the possibility that the jury could find there was not an accord and satisfaction on all of Poole’s claims. See Wallace v. Harrison, 166 Ga. App. 461, 465 (304 SE2d 487). Thus, it was not adjusted to the evidence introduced at trial. Department of Transp. v. Freeman, 187 Ga. App. 883, 884 (371 SE2d 887). Moreover, since it would require a defendant’s verdict even if the jury found an accord and satisfaction, to some but not to all of Poole’s claims, it was not a correct statement of law and the trial court did not err by refusing to give it. T. G. & Y. Stores Co. v. Waters, 175 Ga. App. 884, 885 (334 SE2d 910). Therefore this enumeration of error is without merit.

5. The eighth enumeration of error alleges the trial court, erred by denying appellants’ motion for new trial based on the allegation that any verdict that Poole had an oral contract with Investors Services was contrary to the weight of the evidence. Appellants’ argument again asks this court to assess the weight of the evidence. That is not our function. There is some evidence supporting the verdict, and that is sufficient. Green v. Dillard, supra. The enumeration of error is without merit.

6. As appellants’ ninth enumeration of error, contesting the denial of their motion for judgment n.o.v. is neither supported by argument nor citation of authority, it is abandoned. Court of Appeals Rule 15 (c) (2); Sepulvado v. Daniels Lincoln Mercury, 170 Ga. App. 109 (316 SE2d 554).

Decided October 31, 1989

Rehearing denied November 14, 1989

Evans & Flournoy, Charles A. Evans, for appellants.

David C. Butler, for appellee.

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    A89A1299.
    DALLAS BUILDING MATERIAL, INC. v. SMITH.
    (388 SE2d 359)
   Deen, Presiding Judge.

Dallas Building Material, Inc., filed a complaint against Robert D. Winiarczyk, a homeowner, and Roy Smith, a contractor, seeking to foreclose upon a materialman’s lien which was filed against Winiarczyk’s home. Dallas Building Material alleged that it sold materials to Roy Smith, d/b/a RAS Contractors, in the amount of $11,157.66 for the improvement of Winiarczyk’s real property and that Smith had not paid for the materials. The affidavit evidence showed that the materials were used on Winiarczyk’s home and that Smith had filed a bankruptcy petition. Other evidence showed that after paying Smith for the materials, Winiarczyk did not obtain an affidavit from him stating that the contractor had paid his supplier or obtained lien waivers from the materials supplier. Dallas Building Material and Winiarczyk filed motions for summary judgment. (Smith has not made an appearance as a party in the case.) Dallas Building Material appeals from the denial of its motion for summary judgment and the grant of summary judgment in favor of Winiarczyk. Held:

The evidence showed that Winiarczyk contracted with Smith to do certain renovations to his home for $45,197.74. Smith opened an account at Dallas Building Material to purchase some of the materials to be used in making the renovations. At the time of the last entry on the account, Smith owed $11,157.66 to the supplier. Winiarczyk paid Smith a total of $47,557.41 under the contract, but Smith did not complete the work and Winiarczyk was forced to pay an additional $4,800 to other parties to complete the project.

OCGA § 44-14-361.1 provides in subsection (e): “In no event shall the aggregate amount of liens set up by Code Section 44-14-361 exceed the contract price of the improvements made or services performed.” The editor’s notes which appear in the 1989 Cumulative Supplement to the Michie edition of the Code at page 117 note: “The language of subsections (a) through (d) of this Code section, prior to the 1983 amendment, was formerly codified in substantially similar form at § 44-14-362.” “The 1983 amendment, effective July 1, 1983, added subsection (e).” This note is incorrect. The substance of subsection (e) appeared in former OCGA § 44-14-361 and in its predecessor, Code Ann. § 67-2001 (2). It has been a part of this state’s statutory law since 1899. See Ga. L. 1899, p. 33. The statement in Bishop v. Forsyth Paving Contractors, 181 Ga. App. 345 (352 SE2d 198) (1986), that the court in Jones Mercantile Co. v. Lyn-Har, 245 Ga. 812, 813 (267 SE2d 251) (1980), overlooked subsection (e) is incorrect and is hereby disapproved. While subsection (e) was added as a separate subsection to the code some three years after Jones was decided, it was incorporated into the main body of former OCGA § 44-14-361 and its predecessors.

Decided October 23, 1989

Rehearing denied November 14, 1989

George E. Pennebaker, for appellant.

Hartley, Rowe & Fowler, G. Michael Hartley, Elizabeth A. Geoffrey, for appellee.

Under OCGA § 44-14-361.1 (a) (4), “the owner of the real estate improved, who has paid the agreed price or any part of the same, may set up the payment in any action brought and prove by competent and relevant evidence that the payments were applied as provided by law. . . .” Jones, supra at 813, holds that “the owner is required to show that the sums paid to the contractor were properly appropriated to materialmen and laborers or that the contractor’s statutory affidavit concerning such indebtedness had been obtained. [Cits.]” In the instant case, while the homeowner has not shown that the codal requirements have been met, his liability is limited by OCGA § 44-14-86!.1 (e): “In no event shall the aggregate amount of [the material-men’s] liens . . . exceed the contract price for improvements made or services performed.” The appellant’s lien is $11,157.66, and it does not exceed the contract price for improvements made to Winiarczyk’s property. The trial court therefore erred in granting summary judgment to him and in denying appellant’s motion.

Judgment reversed.

Corley, C. J., McMurray, P. J., Banke, P. J., Birdsong, Pope, Benham and Beasley, JJ., concur. Sognier, J., concurs in judgment only.


author: Beasley, Judge.

text:
    A89A1421.
    LOFTIN v. PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY.
    (388 SE2d 525)
   Beasley, Judge.

On January 4, 1982, Ideal Enterprises, Inc., brought an action against Loftin seeking recovery of money owed it for cleaning, moving and restoring Loftin’s personal property following a fire on January 14, 1981. Loftin answered and filed a counterclaim and a third-party action against Prudential Property & Casualty Company. Prudential’s motion for summary judgment was denied on July 20, 1982. Pleadings were filed afterwards in 1982 and in early 1985. In April 1985 Prudential’s counsel was granted an unopposed leave of absence for ten days. In September 1988 Loftin filed interrogatories and requested a hearing on certain matters. At the hearing on February 22, 1989, the trial court dismissed the action pursuant to OCGA § 9-2-60 (b).

Loftin urges that he was deprived of his right to be heard and the right to prove his case, and that dismissal violated OCGA §§ 9-11-41 and 9-2-60. The issue is whether the unopposed grant of a ten-day leave of absence to third-party defendant’s counsel constituted an order within the meaning of OCGA § 9-2-60.

The Code section provides for automatic dismissal when no written order is taken for a period of five years; this is mandatory and dismissal occurs by operation of law. Stephens v. Stovall & Co., 184 Ga. App. 78, 79 (1) (360 SE2d 638) (1987). In order to break the running of the five-year dormancy period the order has to be in writing, signed and entered. Swint v. Smith, 219 Ga. 532 (134 SE2d 595) (1964); Scott v. DeKalb County Hosp. Auth., 168 Ga. App. 548 (309 SE2d 635) (1983). The grant of a continuance is an order which requires a fresh five-year period from its entry. OCGA § 9-2-60 (a).

West v. Dept. of Transp., 174 Ga. App. 603 (330 SE2d 803) (1985), considered whether the grant of a leave of absence to counsel sufficed to avoid operation of OCGA § 9-11-41 (e), the substantial equivalent of OCGA § 9-2-60 (b). See Fulton County v. Corp. &c. Latter Day Saints, 133 Ga. App. 847, 849 (212 SE2d 451) (1975); Simmerson v. Blanks, 183 Ga. App. 863 (360 SE2d 422) (1987). The order in West failed to identify the specific case and it was never entered in the record. Thus, no written order was taken in that case for the purposes of OCGA § 9-11-41 (e). The decision did not hold that the grant of a leave of absence was per se not such an order as contemplated by the Code section.

The present order was written, signed and entered on the records of the clerk. As pointed out in Scott v. DeKalb County Hosp. Auth., supra at 548, “[t]he statute ‘places upon a plaintiff who wishes to avoid an automatic dismissal of his case by operation of law a duty to obtain a written order of continuance or other written order at some time during a five year period.” Although the order was obtained by defense counsel, not by plaintiff, it met all the stated requirements of being written, signed and entered. The Code only mandates that a written order be taken. Plaintiff need not initiate the process but only insure that an order is entered before five years elapse.

Decided October 16, 1989

Rehearing denied November 14, 1989

Dean Covington, for appellant.

Gorby, Reeves, Moraitakis & Whiteman, Michael J. Gorby, Eve A. Appelbaum, for appellee.

Thus, as implied in West, the subject order was such as would require the passage of five dormant years from the time of its entry to warrant automatic dismissal. That time not having elapsed, dismissal by operation of law had not occurred.

Judgment reversed.

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


text:
    A89A1433.
    BRADLEY v. THE STATE.
    (388 SE2d 331)
   Deen, Presiding Judge.

Appellant Bradley was found guilty on multiple charges ensuing from a “drug bust” in which he was arrested and his roommate shot to death. He received concurrent sentences totaling fifteen years on charges of trafficking in cocaine, aggravated assault upon a peace officer, sale of cocaine, and possession of cocaine, plus five years for possession of a firearm during the commission of crimes. He was acquitted of additional charges of possession of marijuana and aggravated assault upon a second police officer, and a count of possession of cocaine with intent to distribute was held to have merged with the trafficking charge.

After denial of his motion for new trial, Bradley has appealed to this court, enumerating as error (1) the sufficiency of the evidence; (2) the State’s failure to disclose promises of leniency to an accomplice, resulting in a deprivation of due process and fundamental fairness; (3) the trial court’s granting, over objection, of the State’s motion to excuse a juror for cause; (4), (5), (6) the trial court’s giving three erroneous or incomplete jury charges; and (7) ineffective assistance of counsel, with consequent deprivation of Constitutional rights. Held:

1. Examination of the record in its entirety reveals that there was more than sufficient competent evidence of appellant’s guilt of the charges on which he was convicted and sentenced to authorize the rational trier of fact to find him guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). This enumeration is without merit.

2. The record reveals that the prosecution, in response to defense counsel’s motion to “Reveal the Deal” made pursuant to Giglio v. United States, 405 U. S. 150 (92 SC 763, 31 LE2d 104) (1972), had stated that no offer, promise, agreement, or “deal” had been made to induce an alleged accomplice to testify for the State. It was subsequently revealed, however, that the prosecutor had promised to write a “To Whom It May Concern” letter to the attorney representing the accomplice on a drug charge in a neighboring jurisdiction, stating that the accomplice had testified in the instant case. In Patillo v. State, 258 Ga. 255 (368 SE2d 493) (1988), our state’s Supreme Court cited McCleskey v. Kemp, 753 F2d 877 (11th Cir. 1985), in which, in a situation analogous to that sub judice, a detective had offered to “speak a word” for a prosecution witness, and the Eleventh Circuit had held that the statement “offered such a marginal benefit . . . that it is doubtful it would motivate a reluctant witness, or that disclosure of the statement would have had any effect on his credibility.” Id. at 884. Distinguishing McCleskey from the situation in Patillo, the Supreme Court held: “However, a failure to disclose does not ‘automatically require a new trial. . . .’ Giglio, supra, 405 U. S. at 154. Rather, reversal is required ‘only if . . . there is a reasonable probability that, had the evidence [of the offer] been disclosed to the defense, the result of the proceeding would have been different.’ United States v. Bagley, 473 U. S. 667 (105 SC 3375, 3384, 87 LE2d 481) (1985).” In the instant case, in view of the wealth of other evidence of appellant’s guilt, there is no reasonable probability that disclosure of the offer to write the letter would have affected the result of the jury’s deliberations. This enumeration is also devoid of merit.

3. The trial court excused a certain juror for cause after counsel had objected to the man’s past experience with police officers, contending that the juror might be prejudiced thereby. The trial court is vested with discretion in rulings on such objections as appellant cites here, and absent manifest abuse that discretion will not be disturbed. Durham v. State, 185 Ga. App. 163, 165 (363 SE2d 607) (1987).

We find no abuse of discretion here, and consequently no merit in the third enumeration.

4. In his fourth enumeration of error, appellant alleges that the trial court failed to instruct the jury that knowledge that the victim of an aggravated assault was a peace officer was an essential element of the offense. Scrutiny of the record reveals that contrary to appellant’s allegation, the trial court did give a correct and complete jury instruction on this point; this enumeration therefore has no merit.

5. Examination of portions of the transcript and record relevant to the errors assigned to the jury instructions regarding “possession” and corroboration reveals that there is likewise no merit in these enumerations.

Decided September 18, 1989

Rehearing denied November 14, 1989

J. M. Raffauf, for appellant.

Robert E. Wilson, District Attorney, J. Michael McDaniel, Robert M. Coker, Assistant District Attorneys, for appellee.

6. Examination of the record indicates that appellant’s seventh enumeration is also without merit. He alleges that his trial counsel failed to request the jury instructions discussed in Divisions 4 and 5, supra. Pretermitting further discussion of these issues, the record shows that trial counsel was sufficiently effective to succeed in winning acquittal of his client on one possession charge and one charge of aggravated assault upon a peace officer. To allege successfully that counsel was ineffective, appellant must “overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” Gabler v. State, 177 Ga. App. 3, 6 (338 SE2d 469) (1985).

“To establish that there has been actual ineffective assistance of counsel [under the standard of Strickland v. Washington, 446 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)], 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.” Baggett v. State, 257 Ga. 735 (363 SE2d 257) (1988). In view of the abundance of evidence of appellant’s guilt cited in Division 1, supra, we find no reason to conclude that the result of the case would have been different, no matter who the defense counsel might have been — short, perhaps, of F. Lee Bailey.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A1494, A89A1495.
    GORDON et al. v. FROST et al.; and vice versa.
    (388 SE2d 362)
   Beasley, Judge.

This appeal and cross-appeal follow a jury trial in this suit by Mr. and Mrs. Gordon against Thrift Drug Company d/b/a Treasury Drug, pharmacist Frost, and pharmacist/manager Benton, alleging intentional infliction of emotional distress, malicious prosecution, false imprisonment, negligence, and loss of consortium as a result of Mrs. Gordon’s arrest at the pharmacy for violation of the Georgia Controlled Substances Act by fraudulently attempting to obtain a controlled substance via the telephone, OCGA § 16-13-32.3.

During trial, the court directed a verdict in favor of defendant Benton on all causes of action and directed a verdict for the remaining defendants on the false imprisonment and negligence counts. The jury found in favor of defendants on the cause of action for malicious prosecution but in favor of plaintiffs on their claims of intentional infliction of emotional distress and loss of consortium; the jury returned a verdict for Mrs. Gordon for $200,000 general damages and for Mr. Gordon in the amount of $20,000. Judgment was entered accordingly.

Defendants Frost and Thrift Drug Company d/b/a Treasury Drug moved for judgment notwithstanding the verdict and/or in the alternative, for new trial. The trial court granted the motion for judgment notwithstanding the verdict and denied the motion for new trial.

In Case No. A89A1494, Mr. and Mrs. Gordon appeal the judgment in favor of defendants notwithstanding the verdict, contending that there was sufficient competent evidence before the jury to support the verdict in their favor and that judgment for defendants was not demanded as a matter of law. In the alternative, they cite error in the court’s direction of verdicts during the course of trial, its consequent refusal of requests to charge on the theories of recovery removed from the case, and the court’s alleged undue emphasis in charging the jury on the element of lack of probable cause in regard to the claim of malicious prosecution. In Case No. A89A1495, Frost and the drug company cross-appeal the denial of their motion for new trial on the general grounds.

Case No. A89A1494

1. “ ‘As with a directed verdict, a motion for judgment notwithstanding the verdict is proper only where “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).] [Cits.]’ [Cit.] In applying this standard, [the appellate court] must view the evidence in a light most favorable to the party securing the jury’s verdict. [Cit.]” Hiers-Wright Assoc. v. Manufacturers Hanover Mtg. Corp., 182 Ga. App. 732 (2) (356 SE2d 903) (1987). See also Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554) (1983).

Viewing the evidence in the light most favorable to plaintiffs, it showed the following. On March 17, 1986, Mrs. Gordon awoke with a migraine headache. After unsuccessfully attempting to sleep it away, she decided to take some prescribed Fiorinal #3 with Codeine. The doctor had given Mrs. Gordon four such prescriptions, two or three of which had been refillable. Mrs. Gordon would go about refilling prescriptions by telephoning the Treasury Drug store where she had been a customer for over four years. During that time Mrs. Gordon had had to have numerous prescriptions filled at the drug store for a variety of suffered conditions, including the migraine headaches. She was on a first-name basis with store pharmacists Benton and Frost and recognized their voices on the telephone. Mrs. Gordon believed that the pharmacists recognized her voice as well because they would refer to her by her first name when she called. Frost had known Mrs. Gordon for over two years and had filled such a Fiorinal prescription for her on several occasions.

When Mrs. Gordon went to take the Fiorinal for her headache, she discovered that she had no medication left and called the drug store to obtain some. An assistant/intern pharmacist, whose voice Mrs. Gordon did not recognize, answered the telephone. Mrs. Gordon stated, “I am calling to renew a prescription for Gail Gordon.” The intern asked the name of the prescription and the prescribing physician and Mrs. Gordon responded accordingly. The intern then asked if the prescription was refillable or renewable. Mrs. Gordon responded that she did not know. The intern asked how many pills had been prescribed and Mrs. Gordon requested that the intern hold on while she got the empty prescription bottle. Mrs. Gordon brought the pill container with her to the telephone, read off that twelve pills had been prescribed and responded further to the intern’s question about dosage. When Mrs. Gordon was asked to supply the doctor’s “DEA number (Drug Enforcement Administration)” she responded she did not have that information, told the intern to call the doctor’s office to get the DEA number from one of the nurses, and supplied the prescribing physician’s telephone number.

The intern pharmacist informed Mrs. Gordon that they could not fill the prescription without the doctor’s DEA number and put her on hold. The call was taken over by pharmacist Frost, whose voice Mrs. Gordon recognized. Frost reiterated that they could not fill the prescription without the DEA number. Mrs. Gordon again stated that she did not have the number, that it should be gotten from the doctor’s office, and that she had given the doctor’s telephone number to the woman she had first spoken with. Frost told Mrs. Gordon that the pharmacy was very busy and they would do the best they could, but that it would take awhile. Mrs. Gordon thanked Frost and ended the call. At no time during the conversation with the intern and Frost did Mrs. Gordon say she was calling from the prescribing physician’s office. Nor was she asked her identity or if she was calling from the doctor’s office.

In Frost’s experience, it was not unusual for an employee of a doctor’s office to call in a prescription for the doctor without realizing it required a DEA number. Apparently believing that the caller requesting Fiorinal was a representative from Mrs. Gordon’s physician’s office, Frost called the doctor’s office to inquire about the prescription but everyone at the office was out to lunch.

Approximately two hours later, Mrs. Gordon called the pharmacy, identified herself and asked whether or not her prescription was ready. She was told that it would be ready in a couple of minutes, by the time of her arrival. In the meantime, Frost spoke with the prescribing physician’s office and learned that no one from the office had recently prescribed Fiorinal #3 with Codeine for Mrs. Gordon. Frost did not inquire further as to whether or not the doctor would have permitted the prescription, did not check the store computer to see the status of the Fiorinal prescription, and did not call Mrs. Gordon to attempt to clarify the situation. Mrs. Gordon’s physician did not believe Mrs. Gordon abused the prescribed medications and probably would have refilled the Fiorinal prescription.

Prior to this incident, Frost had stated to the intern pharmacist that Mrs. Gordon was a hypochondriac and took a lot of medication. After learning that the initial call had not come from the doctor’s office, Frost reached the conclusion that Mrs. Gordon was attempting to fraudulently acquire the prescription. Consequently, Frost called the DEA to report her suspicion. The DEA told Frost they would send someone to take care of the situation and instructed her to try to keep Mrs. Gordon at the store.

Mrs. Gordon arrived at the pharmacy, identified herself to the intern and stated that she was there to pick up her prescription. She was told she would have to wait. She spoke briefly to Frost about some other medication that Frost had sold her the week before. Shortly thereafter, a police officer arrived and arrested Mrs. Gordon for violation of the Georgia Controlled Substances Act.

Mrs. Gordon was shocked, upset, and hysterical, and at first could not understand why she was being arrested. She asked to contact her husband and her physician. Another customer observed Mrs. Gordon’s distress, her being yelled at by the police officer, and her pleas to contact her husband and doctor. During this time, Frost went back behind the pharmacy counter to wait on customers. At least one of the pharmacists spoke with Mrs. Gordon’s doctor, and Mr. Gordon arrived on the scene and attempted to assist in straightening out the situation.

The pharmacists informed the officer that they would prosecute and Frost signed a “Citizen’s Arrest Form.” Mrs. Gordon was taken to jail and remained there for eight or nine hours. She was fingerprinted, photographed, and handcuffed. Following a preliminary hearing and pursuant to Frost’s suggestion, a narcotics division detective subpoenaed a computer list of all prescriptions obtained by Mrs. Gordon from the drug store. Frost assisted thfe detective by going over the list and underlining the “hypnotics.” The detective gave the list to the magistrate because the detective knew the magistrate was contemplating dismissing the case. Ultimately, the assigned assistant district attorney determined not to present the case to the grand jury.

“The tort of intentional infliction of emotional distress is recognized in this state, where the ‘defendant’s actions were so terrifying or insulting as naturally to humiliate, embarrass, or frighten the plaintiff.’ [Cit.] ‘Claims for intentional infliction of emotional distress have been upheld by this court when the threats on which those claims were based were outrageous and egregious.’ [Cit.]” Arrowsmith v. Williams, 174 Ga. App. 690, 692 (3) (331 SE2d 30) (1985). “[T]he conduct . . . must be of such serious import as to naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress.” Moses v. Prudential Ins. Co. of America, 187 Ga. App. 222, 225 (369 SE2d 541) (1988). The plaintiff’s burden is a stringent one in order to prevail in such a cause of action. Bridges v. Winn-Dixie, 176 Ga. App. 227, 229 (1) (335 SE2d 445) (1985).

Some claims as a matter of law do not rise to the requisite level of outrageousness and egregiousness. See Sossenko v. Michelin Tire Corp., 172 Ga. App. 771, 773 (324 SE2d 593) (1984). Others raise circumstances which properly put the issue before a jury. See, e.g., Anderson v. Chatham, 190 Ga. App. 559, 566 (8) (379 SE2d 793) (1989). Once the evidence shows that reasonable persons might find the presence of extreme or outrageous conduct, the jury must find the facts and make its own characterization. See Chuy v. Philadelphia Eagles Football Club, 595 F2d 1265, 1274 (9) (3rd Cir. 1979) (1979) citing the Restatement (Second) of Torts § 46, comment h. This is a case of the latter class.

Evidence of a defendant’s malicious purpose or of a defendant’s wanton disregard of a plaintiff’s rights may be considered in evaluating whether or not the objected-to behavior can reasonably be characterized as outrageous or egregious. See Arrowsmith, supra at 692 (3). “Comment f, § 46 (1) of the Restatement (Second) states that the extreme and outrageous character of the conduct ‘may arise from the actor’s knowledge that the other is peculiarly susceptible to emotional distress by reason of some physical or mental condition or peculiarity. The conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know.’ Moreover, the existence of a special relationship in which one person has control over another, . . . may produce a character of outrageousness that otherwise might not exist. [Cit.] . . . [However,] ‘major outrage in the language or conduct complained of is essential to the tort.’

“The severity of the emotional distress allegedly produced by the conduct is also a factor in determining liability for this tort.” Bridges, supra at 230 (1).

There was a relationship of professional trust of several years duration between Mrs. Gordon and pharmacist Frost. Frost was in a position of control over Gordon’s health and welfare to the extent of properly dispensing needed medications, and as the evidence demonstrated, on occasion making other health recommendations, i.e., advising a non-prescription remedy. Moreover, Frost’s position put her in the particular posture of familiarity with Mrs. Gordon’s physical and/or emotional state by her ready and continuing access to the lengthy computerized documentation of Mrs. Gordon’s prescribed medication in addition to personal exchanges and encounters with the customer relative to her health needs. There was explicit evidence that Frost perceived that Mrs. Gordon had emotional problems, when she expressed her opinion about the quantity of Mrs. Gordon’s medications and her hypochondriacal behavior. Because of the pharmacist’s special vantage point with regard to Mrs. Gordon’s recurring medical condition, the jury could infer knowledge on the part of the pharmacist that Mrs. Gordon would be peculiarly susceptible to emotional distress. Moreover, the evidence was undisputed that on the day of the incident, Mrs. Gordon was already ill prior to the arrest.

In the context of the relationship of trust between this customer and pharmacist, evidence of Frost’s previously expressed opinions about Mrs. Gordon, Frost’s limited investigation prior to report to the BEA, her actions during and following the arrest, and Mrs. Gordon’s version of the circumstances of the initial phone call could have properly been considered by the jury as evidence of Frost’s malicious purpose or wanton disregard. Likewise, in assessing liability, the jury could have appropriately considered Mrs. Gordon’s extreme distress amounting to hysteria.

Because there was some evidence to support the jury’s determination that defendants intentionally inflicted emotional distress upon Mrs. Gordon, the trial court was not authorized to grant the defendants judgment notwithstanding the verdict. While the trial court may act as a “thirteenth juror” before a verdict becomes final insofar as the losing party requires it by a motion for new trial on the general grounds, see Housing Auth. of Atlanta v. Geter, 252 Ga. 196, 197 (312 SE2d 309) (1984), it may not assume this role to weigh the evidence, find it in favor of the losing party and thereby grant judgment notwithstanding the verdict.

Decided October 26, 1989

Rehearing denied November 14, 1989

John C. Parker, Jennifer H. Chapin, for appellants.

Hart & Sullivan, Lawrie E. Demorest, Rush S. Smith, Jr., for appellees.

2. Division 1 renders it unnecessary to consider appellants’ alternate enumerations of error.

Case No. A89A1495

3. Inasmuch as there was evidence to support the jury’s verdict, see Division 1, the trial court’s denial of defendants’ motion for new trial will not be disturbed. See Daniels v. Hartley, 120 Ga. App. 294 (170 SE2d 315) (1969); see also Smiway, Inc. v. Dept. of Transp., 178 Ga. App. 414 (1) (343 SE2d 497) (1986).

Judgment reversed in Case No. A89A1494. Judgment affirmed in Case No. A89A1495.

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


text:
    A89A1605.
    SMITH v. CLIFFORD H. PRYOR & ASSOCIATES, INC.
    (388 SE2d 383)
   Deen, Presiding Judge.

Appellant Smith fell and injured himself as he approached the side entrance to a Wendy’s restaurant in Thomson, Georgia, where he and his family had stopped while en route from North Augusta, S. C., to Decatur, Ala. The parking lot was in the rear, and the Smiths were walking along a paved driveway next to the building when, he claims, he slipped on what he characterized as a wet, oily spot where rain water, possibly mixed with asphalt which had melted in the sun, had dripped from the roof onto the pavement. His daughter summoned aid from the restaurant, and the assistant manager wrapped appellant’s bleeding arm in towels and had a restaurant employee drive appellant to a hospital, where the laceration and abrasions on his arm were treated. Examination of the place where Smith fell revealed no oily or slippery spot, and appellees disavowed any prior knowledge of such a spot. At the hospital Smith complained of headache, dizziness, and blurred vision but was dismissed to continue his trip. Wendy’s paid the bills for this hospital visit. Subsequent medical consultations revealed symptoms possibly consistent with a blow to the head such as appellant claimed to have suffered when he fell to the pavement.

Decided November 1, 1989

Rehearing denied November 14, 1989

David C. Huguenin, for appellant.

Dye, Miller, Tucker & Everitt, Mark W. Wortham, Duncan D. Wheale, for appellee.

Smith subsequently filed an action against appellant Clifford H. Pryor & Associates, holders of the Wendy’s franchise, alleging that he had been injured because of defendant/appellee’s negligence. In the first of two amended complaints he alleged that appellee was further negligent in setting up a distraction in the form of vehicles entering the driveway on the inner edge of which appellant was walking; in the second amended complaint appellant alleged that he was entitled to recover medical expenses and lost earnings. At trial he withdrew the distraction theory and proceeded on the negligence theory only. There was conflicting testimony as to how much time appellant lost from work during the six months or so following the injury; it was undisputed that he returned to work on the day after he returned from the trip, or the sixth day after the injury. The jury found for the defendant. On appeal Smith enumerates as error the denial of his motion for new trial and his amended motion for new trial. Held:

The general rule is that a jury verdict, after approval by the trial court, will not be disturbed on appeal if it is supported by any evidence. Denny v. D. J. D., Inc., 188 Ga. App. 431, 433 (373 SE2d 383) (1988); Branch v. Anderson, 47 Ga. App. 858 (171 SE 771) (1933). In the instant case competent evidence was adduced to support appellee’s contentions that there was no slippery spot or other indication of negligence, that appellee had not breached its duty of ordinary care in keeping the premises safe, and that there was no necessary causal relationship between appellant’s injury and the fact that it occurred on appellee’s property. Compare Cobb v. Popeye’s, Inc., 188 Ga. App. 443 (373 SE2d 233) (1988), in which there was evidence that employees of the fast food restaurant knew of the presence of grease on the pavement adjacent to the restaurant. After review of the entire record of the instant case, including the trial transcript, we are persuaded that the trial court did not err in denying appellant’s motion for new trial.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Sognier, Judge.

text:
    A89A1924.
    LOWE v. HADLEY et al.
    (388 SE2d 394)
   Sognier, Judge.

T. M. Lowe brought suit against Isaac Hadley and L. U. Hadley to recover a real estate commission allegedly due him on the sale of the Hadleys’ home to George W. Ford, Jr. The trial court granted the Hadleys’ motion for summary judgment and Lowe appeals.

Appellant had an exclusive listing contract with appellees to sell their home. The listing contract provided that appellant was entitled to a commission upon the sale of the house to “anyone to whom the property was submitted during [the] listing period,” and that appellees agreed “to refer all inquiries concerning [the] property to” appellant. The exclusive listing contract expired March 21, 1988. Ford purchased the house from appellees on May 12, 1988.

The parties agree that the sole issue on appeal is whether appellant’s affidavit, in which he averred that Ford told him that appellees had showed Ford, as a potential purchaser, their home prior to the expiration of the listing contract, created a question of fact to rebut the affidavits of appellees and Ford that Ford was shown the house as a potential purchaser thereof subsequent to the expiration of the listing contract.

The trial court erred by granting summary judgment to appellees. “In Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982), the Supreme Court held that ‘a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence . . . [.]’ The logical extension of the Gibbons rule is to permit a non-moving party to withstand a motion for summary judgment by submitting sworn testimony averring personal knowledge of the existence of a prior inconsistent statement made by the witness upon whose sworn testimony the movant relies.” Cooperwood v. Auld, 175 Ga. App. 694 (334 SE2d 22) (1985). As in Cooperwood, the affidavits submitted by appellees stated the same facts as those in the affidavit submitted by the witness (here, Ford). “[Appellant’s affidavit containing [Ford’s] statement to [him] that he [viewed the property as a potential purchaser prior to the expiration date of the listing contract] is sworn testimony of personal knowledge that the [witness] earlier made a statement inconsistent with the sworn testimony he later gave in support of the motion for summary judgment, i.e., that he had [not seen the property as a potential purchaser until subsequent to the expiration of the listing contract.]” Id. Construing, as we must, the evidence in the light most favorable to the non-moving party, the record indicates that material issues of fact remain to be determined. Thus, summary adjudication of the case was inappropriate. Lidster v. Jones, 176 Ga. App. 392, 393 (336 SE2d 287) (1985).

Decided November 6, 1989

Rehearing denied November 14, 1989.

Worthington & Flournoy, Thomas M. Flournoy, Jr., for appellant.

Hatcher, Stubbs, Land & Hollis, Robert C. Martin, Jr., for appellees.

Judgment reversed.

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


text:
    A89A1973.
    COLLINS v. THE STATE.
    (388 SE2d 391)
   Deen, Presiding Judge.

Appellant Collins was convicted on one count of burglary and one count of theft by taking. He appeals from the judgment, enumerating as error the trial court’s giving a jury charge on recent possession which allegedly included an incomplete statement of relevant law and lessened the State’s burden of proof; the State’s alleged failure to adduce proof of entry of the burglarized premises, an essential element of the offense of burglary; and insufficiency of evidence to convict. Held.

1. Although it is well settled that recent unexplained possession of stolen goods does not per se support a guilty verdict, Bankston v. State, 251 Ga. 730 (309 SE2d 369) (1983), it is equally well settled that such possession raises an inference of guilt. Moon v. State, 258 Ga. 748 (375 SE2d 442) (1988); Howard v. State, 180 Ga. App. 817 (350 SE2d 825) (1986). Cases cited by appellant do not support his contention to the contrary.

In the instant case numerous items of property identified by the victims were found in the possession of persons who testified that those items had been obtained from appellant. Appellant concedes that the challenged jury instruction, or close equivalents, has been sustained by Georgia’s appellate courts. Horton v. State, 228 Ga. 690 (187 SE2d 677) (1972); Carpenter v. State, 140 Ga. App. 368 (231 SE2d 97) (1976). We find nothing burden-shifting or otherwise erroneous in the charge as given. Moreover, the abundance of evidence linking appellant to the stolen goods authorizes the giving of such a charge and amply corroborates the inference raised by the finding of the stolen goods. Moreover, the transcript shows that the court gave full and accurate instructions regarding burden of proof. This enumeration is without merit.

2. The second enumeration is also without merit. The fact that numerous items identified as the victims’ property were found outside their premises, when coupled with the victims’ statement that no one had been authorized to enter those premises, compels the conclusion that there had been an unauthorized entry.

Decided November 2, 1989

Rehearing denied November 14, 1989

Whitmer & Law, G. Hammond Law III, for appellant.

Michael H. Crawford, District Attorney, for appellee.

3. As indicated in Divisions 1 and 2, supra, there was ample evidence to connect appellant with the break-in and theft and to support a conviction of burglary. Moreover, the record shows that there was evidence that appellant was overheard instructing a neighbor to dispose of certain stolen items; there was also evidence of record that appellant had threatened the life of the wife of a man to whom certain stolen items had been given or conveyed, warning her as to what would happen if she failed to “keep her mouth shut” regarding the transaction. Under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the rational trier of fact would have been authorized to find appellant guilty as charged, beyond a reasonable doubt.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0819.
    McCURLEY et al. v. WHITAKER OIL COMPANY et al.
    (388 SE2d 412)
   Beasley, Judge.

Plaintiffs Mr. and Mrs. McCurley appeal the grants of summary judgment to defendant distributors, processors, and/or manufacturers, Whitaker Oil Company, Baychem, Inc., Imperial Chemical Industries, Ltd. (ICI PLC), ICI Americas, Inc. (ICIA), Occidental Electrochemicals Corporation, successor in interest of Diamond Shamrock Corporation, and Ashland Chemical Company, a Division of Ashland Oil, Inc., in this suit seeking to recover for McCurley’s personal injuries and his wife’s loss of consortium. This allegedly resulted from McCurley’s being overcome by fumes from the chemical trichloroethylene (TCE), being rendered unconscious, and falling upon hot steam lines in his place of employment in the nail mill at Atlantic Steel Company. McCurley contended in his amended complaint that each defendant, although it knew or should have known of TCE’s inherently dangerous nature, was negligent in failing to provide adequate warning of the chemical’s hazards or to take proper measures to insure that information necessary to TCE’s safe use was conveyed to those who would be expected to use or be exposed to TCE; the TCE when sold was in a defective., condition due to the lack of warning of its highly dangerous characteristics; each defendant showed a complete and reckless indifference to the consequences of its actions justifying an award of punitive damages.

The incident occurred on April 2,1986, and suit was initially filed on June 18, 1987. Earlier, on October 6, 1986, the McCurleys filed a complaint for damages against employer Atlantic and several of its employees alleging that in an effort to avoid the expense of providing proper safety precautions for the hazardous exposure to TCE, defendants conspired to wilfully and intentionally conceal TCE’s toxicity from becoming known to plaintiffs and other workers exposed to the chemical and that defendants fraudulently misrepresented that TCE was not toxic and posed no danger. Defendants were granted summary judgment.

All defendants in the present suit moved for summary judgment on the contention, inter alia, that McCurley knew of the TCE-related dangers and knowingly assumed the risk associated with inhaling TCE fumes. This was based largely on McCurley’s statements in an affidavit filed in the prior suit against Atlantic, which affidavit plaintiffs stipulated could be received into evidence in this case.

Defendant Whitaker additionally presented evidence that it was not a manufacturer but a bulk distributor, entitling it to summary judgment on the strict liability claim, and that it had provided clear warnings to Atlantic about the hazards of TCE.

The trial court granted the motions. Appellants contend that in so doing, the court erred in construing the evidence most favorably toward the movants so that it erred in holding that no issue of material fact existed as to whether McCurley had equal or superior knowledge of the dangers inherent in TCE and as to whether he assumed the risk of the injury.

1. Although McCurley’s claims are based on separate theories of recovery in negligence, strict liability, and recklessness, the underlying conduct complained of in each count is the alleged breach of a duty to warn.

“‘[T]here is no duty resting upon a manufacturer or seller to warn of a product-connected danger which is obvious or generally known. . . . The same rule applies where it appears that the person using the product should know of the danger, or should in using the product discover the danger.’ [Cits.]

“Whether a duty to warn exists thus depends upon foreseeability of the use in question, the type of danger involved, and the foreseeability of the user’s knowledge of the danger. [Cit.]” Giordano v. Ford Motor Co., 165 Ga. App. 644, 645 (2) (299 SE2d 897) (1983).

“This rule has manifested itself in the doctrine of assumption of the risk, which stipulates that “ ‘if the user or consumer discovers the defect and is aware of the danger, but nevertheless proceeds unreasonably to make use of the product he is barred from recovery.’ [Cits.]” Hunt v. Harley-Davidson Motor Co., 147 Ga. App. 44, 45 (2) (248 SE2d 15) (1978). See Whirlpool Corp. v. Hurlbut, 166 Ga. App. 95, 100 (5) (303 SE2d 284) (1983) (non-precedential). See also Deere & Co. v. Brooks, 250 Ga. 517 (299 SE2d 704) (1983).

The question is whether, construing the evidence in favor of appellants, it demonstrated without material factual dispute that Mc-Curley was aware of the danger to him of working in the presence of the TCE fumes and nevertheless assumed the risk, precluding recovery as a matter of law.

McCurley made the following statements in his affidavit. Mc-Curley had been employed by Atlantic for approximately nine years, a large portion of which he had worked in the nail mill. TCE was used in the nail mill as a degreasing agent. It was brought to Atlantic in tanker trucks, unloaded into tanks in the storage yard, and carried by pipeline to the degreasing machines in the nail mill. During his entire tenure with Atlantic, fumes from the TCE had caused a serious problem in and around the mill, resulting in constant complaints to supervisory and management personnel and to the safety director. Two- and-a-half years prior to the incident complained of, McCurley had passed out due to the TCE fumes and had suffered bruises. That incident was reported to the safety department but no action was taken.

Several weeks before the current incident, McCurley learned of a television program dealing with TCE and its hazards, and as a result he requested from his supervisor information on TCE and precautions which could be taken to avoid exposure. He was told that the company was tired of hearing about TCE and he did not receive any information until after the fall onto the steam lines.

Whenever an OSHA representative came to inspect or when outside business people came into the mill area, the employees were instructed to shut off all steam and TCE machinery to cut down on the toxic fumes.

During McCurley’s employment, the safety director was called to the nail mill at least five or six times while McCurley was personally present, because of the extremely high concentration of TCE fumes. No action was taken to eliminate or decrease the fumes on these occasions. No respirators were furnished except that during McCurley’s last two years of employment, a respirator was made available to those going inside of the TCE tanks for cleaning purposes. The only other device available was a paper dust mask which was sometimes available upon request, but it did nothing to control fumes. During his employment, McCurley personally witnessed at least thirteen employees who either passed out, became nauseated, or became so disoriented from the fumes that they had to be taken from the building. At least seven other employees had complained to McCurley or told him of being made sick by the TCE fumes.

Following the filing of the first of the present defendants’ motions for summary judgment, McCurley filed a second affidavit. It reiterated the circumstances described in the first affidavit but this time there was no direct linking of the events with the presence of the TCE fumes. Rather, the assertion was made that McCurley did not connect the adverse physical symptoms he and his co-workers suffered with the TCE fumes until after his 1986 injury when he was provided information about the chemical’s hazards. McCurley denied that he was aware of the danger of TCE prior to his 1986 injury, although he “was concerned over whether it might have some harmful effects and therefore, was attempting to learn something about it at the time of [his] accident.”

“ ‘(W)hether on motion for summary judgment or at trial, it must be decided if the testimony of a party-witness is contradictory. On summary judgment this is a question for the judge to decide. It is contradictory if one part of the testimony asserts or expresses the opposite of another part of the testimony. . . . (E)ven where testimony is contradictory, if a reasonable explanation is offered for the contradiction, the testimony will not be construed against the party-witness. The burden rests upon the party giving the contradictory testimony to offer a reasonable explanation, and whether this has been done is an issue of law for the trial judge. (Cit.) On the other hand, a careless and untruthful witness may have simply forgotten what was said in the first statement, and tailored his second statement to meet the needs of the occasion without regard to the truth. . . . (S)urely the law will construe this contradiction.’ Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986).

“Thus, ‘on summary judgment the self-contradictory testimony of a party-witness, if a reasonable explanation is not offered for the contradiction, must be construed against the party-witness. That is, the favorable portions of the contradictory testimony are excluded. This rule of evidence applies even when the party-witness is the respondent rather than the movant in summary judgment. Prophecy, [supra].’ Chapman v. Burks, 183 Ga. App. 103, 106 (2) (357 SE2d 832) (1987).” Evans v. Richardson, 189 Ga. App. 751, 752 (2) (377 SE2d 521) (1989).

The specific factual statements in the second affidavit were not inconsistent with the corresponding factual statements in the first affidavit; they were merely vague or equivocal regarding McCurley’s knowledge that the genesis of the described problems in the workplace was the TCE fumes. The only portion of the second affidavit which contradicts the earlier affidavit is the concluding summary denial of McCurley’s awareness of the TCE hazards prior to his 1986 injury.

Decided November 14, 1989.

John F. Davis, Jr., for appellants.

Rogers & Hardin, Phillip S. McKinney, Anne E. Williams, Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Drew, Eckl & Farnham, Samuel P. Pierce, Jr., James F. Cook, Jr., Pat M. Anagnostakis, for appellees.

Although the trial court’s order is silent on its construction of the affidavits, it is apparent that the court, which had the parties’ evidence and arguments, found either that no material factual contradiction existed in McCurley’s affidavits or that McCurley failed to carry his burden of offering a reasonable explanation for the contradiction. Either conclusion has not been shown on appeal to be clearly erroneous. See State of Ga. v. Mozley, 182 Ga. App. 871, 874 (357 SE2d 313) (1987).

Whether viewing McCurley’s favorable concluding paragraph in the second affidavit as contradictory to the first affidavit, thereby requiring that it be disregarded, or viewing the two affidavits as not factually inconsistent, the undisputed evidence was that prior to his 1986 injury, McCurley was aware that there were TCE fumes in his workplace, the fumes could and were causing adverse physical symptoms in himself and his co-workers including the loss of consciousness, and that he continued to assume the risk of working in the nail mill with the environmental conditions unchanged. Thus, McCurley was precluded from recovery on his claims and the trial court properly granted judgment in favor of the defendants. Since defendants were not liable for injuries to McCurley, they were not liable as a matter of law to his wife for loss of consortium attributable to those injuries. Henderson v. Hercules, Inc., 253 Ga. 685 (324 SE2d 453) (1985).

2. The ruling in Division 1 renders unnecessary a consideration of the adequacy of any of defendants’ warnings about the chemical.

3. Appellants move to strike those portions of appellee Whitaker’s brief which address its contentions that it provided adequate warnings about TCE to Atlantic and that the strict liability claim cannot be maintained against it as a distributor. They do so on the basis that the trial court precluded consideration of these additional arguments for granting summary judgment. Division 1 renders the motion moot.

Judgment affirmed.

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


text:
    A89A0971.
    KIPP v. RAWSON et al.
    (388 SE2d 409)
   Beasley, Judge.

Kipp appeals the probate court’s granting of a petition for guardianship brought under OCGA § 29-5-6 and the denial of his motion to intervene in the guardianship proceedings. OCGA § 29-5-9 provides the means for any interested person to petition for the modification or termination of a guardianship, but appellant did not choose to wait to challenge the guardianship in this manner.

The following is undisputed. Rawson sued Kipp in the superior court as a result of injuries, including brain damage, he allegedly sustained in a motor vehicle collision. In March 1988, a psychological evaluation was done on Rawson. In October, counsel for the parties reached a settlement agreement. Rawson later gave notice that he would not follow through with it, and Kipp moved the superior court to enforce the agreement. A few days later Rawson applied for a marriage license and was married. The following day, Rawson responded to Kipp’s motion, asserting that the settlement was not binding because of his mental incompetency and that he had filed a petition in probate court seeking appointment of Mrs. Rawson as guardian of his person and property. He and his wife had in fact done so the same day, in light of anticipated receipt of damages from Rawson’s lawsuit against Kipp.

A hearing was scheduled in superior court on Kipp’s motion to enforce the settlement. Rawson requested a continuance because of the pending guardianship petition in probate court. On November 21, Kipp moved the superior court to determine Rawson’s competency as related to the settlement. The next day, the probate court ordered an evaluation of Rawson and on the 28th appointed a guardian ad litem. An evaluation of Rawson was made.

On December 8, Kipp filed in the probate court a motion to intervene in the guardianship proceedings, contending entitlement to intervention because of his interest in the lawsuit, the anticipated proceeds from which formed the basis for the guardianship petition, and because the issue of Rawson’s competency was critical in the superior court proceeding. Kipp also prayed that all evidence on the issue of Rawson’s competency be produced and evaluated by the psychiatrist appointed by the court to interview and evaluate Rawson, that he be permitted to participate in the competency hearing, present evidence and examine and cross-examine witnesses, and it be a trial by jury.

Rawson’s initial counsel moved to intervene in the superior court proceeding in order to protect his fee interest. On December 14, Raw-son moved for a continuance of the hearing on that counsel’s motion to intervene. A hearing on the request for a continuance was held on December 15, at which Rawson advised Kipp that the guardianship hearing in probate court was scheduled for December 19.

On that date, Kipp filed a “showing” in the probate court protesting that he had not received notice of the guardianship hearing and arguing that the guardianship petition should be denied because (1) the Rawsons were estopped from asserting Mr. Rawson’s mental incompetence when they relied on his competence to obtain a marriage license the day before they filed the guardianship petition, (2) the evaluation by the court-appointed physician was incomplete because the Rawsons had not disclosed Mr. Rawson’s prior psychological evaluations, (3) the previous evaluations had shown Mr. Rawson functioning within the normal range of intelligence, and (4) Mr. Raw-son had obtained a driver’s license.

On the same day, the probate court issued letters of guardianship to Mrs. Rawson and denied Kipp’s motion to intervene. The probate court drew two conclusions: Kipp as a matter of fact was not a proper party to the guardianship proceedings because of certain acknowledgments in Kipp’s motion to determine Rawson’s competency in superior court; Kipp had no standing to intervene as a matter of law because the specific rules of practice and procedure made no provision for intervention in probate courts in actions where original, exclusive and general jurisdiction is conferred on probate courts pertaining to incompetent persons.

Appellant Kipp contends that the probate court erred in denying his motion to intervene in the guardianship proceedings, because he was materially affected by them, was so situated that disposition of the issue of guardianship might have impaired or impeded his ability to protect his interest, and his interest was not adequately represented by existing parties. Kipp further contends the court erred in granting the letters of guardianship after a bench trial on the issue of Rawson’s competency in the face of his demand for a jury trial on that issue.

1. The first question is whether or not intervention via OCGA § 9-11-24 is permissible as a matter of law in a probate court guardianship proceeding.

Probate courts have authority, unless otherwise provided by law, to exercise original, exclusive, and general jurisdiction of all other matters and things as appertain or relate to estates of persons who are incompetent because of mental illness or mental retardation. OCGA § 15-9-30 (a) (10). A judge of the probate court may appoint guardians for mentally incapacitated adults. OCGA § 29-5-1 (a) (1) and (2).

The statute outlining the procedure for appointment of a guardian, OCGA § 29-5-6, does not specifically provide for intervention by a third party in a guardianship proceeding. Nor does it prohibit such intervention. It permits the petition for guardianship to be brought by any “interested person or persons,” and “any interested person” can move for appointment of a guardian ad litem for the proposed ward. OCGA § 29-5-6 (a) (1) and (b) (2) (D).

OCGA § 15-9-122 provides, “[u]nless provided to the contrary by Code Section 9-11-81, the general laws and rules of practice, pleading, procedure, and evidence which are applicable to the superior courts of this state shall be applicable to and govern in civil cases in the probate courts.”

OCGA § 9-11-81 provides that the chapter should “apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law; but, in any event, the provisions of this chapter governing . . . intervention, . . . shall apply to all such proceedings.”

The Uniform Probate Court Rules contain no prohibition against third party intervention in a guardianship case. UPGR 1.3 states that the rules “are not intended to apply in instances, if any, where they conflict with statutory time frames or any other statutory provisions, including (by way of example and not by way of limitation) statutory provisions concerning guardianship of incapacitated adults. . . .”

Even if a specific rule of practice and procedure in the probate court was in conflict with OCGA § 9-11-24, according to OCGA § 9-11-81 the Civil Practice Act governing intervention would still apply.

Thus, the probate court was mistaken in concluding that there was no provision for intervention by a third party in the guardianship proceeding as a matter of law. Consequently, the summary denial of Kipp’s petition to intervene, on that basis, was error.

2. Whether or not appellant made a satisfactory showing below of intervention as a matter of right, OCGA § 9-11-24 (a), or of permissive intervention, OCGA § 9-11-24 (b), is not before this court as the probate court made no ruling in this regard.

In addition, we do not address the probate court’s asserted factual determination of no standing to intervene because of certain statements on behalf of Kipp made in pleading in the superior court case, because such pleading is not in the record.

3. We do not reach appellant’s contention that the probate court erred in granting the guardianship following a bench decision on the issue of competency in the face of his demand for a jury trial, because there has not yet been a determination that appellant may become a party to the probate court proceedings.

4. Appellee Mrs. Rawson as her husband’s guardian moved to dismiss the appeal on the bases that appellant (a) has no standing to bring the appeal under OCGA §§ 5-6-34 and 29-5-6; (b) the questions presented have become moot under OCGA § 5-6-48; (c) the appeal is frivolous as is contemplated by Court of Appeals Rule 26 (b).

Decided November 14, 1989.

Karsman, Brooks & Callaway, R. Kran Riddle, for appellant.

Joseph B. Bergen, Frederick S. Bergen, for appellees.

(a) The argument regarding lack of standing to appeal because he was not a “party” to the OCGA § 29-5-6 proceeding is premised on the contention that intervention was prohibited as a matter of law, which is erroneous. See Division 1, supra. Moreover, contrary to appellee’s position, a denial of intervention is appealable. See, e.g., State Farm &c. Ins. Co. v. Five Transp. Co., 246 Ga. 447 (271 SE2d 844) (1980); Allgood v. Ga. Marble Co., 239 Ga. 858 (239 SE2d 31) (1977).

Nor is the appeal dismissable because taken as a direct appeal under OCGA § 5-6-34. Appellant originally filed a notice of appeal solely from the denial of his motion to intervene. On January 23, 1989, the probate court, apparently sua sponte, issued an “order granting application for appeal” which recited that there had been no application for a certificate of review of the interlocutory ruling and asked that nonetheless the appellate court grant review of the case. Any defect in following proper interlocutory review procedure was rendered irrelevant by the filing of appellant’s subsequent timely “amended” notice of appeal from the final grant of guardianship and the immediately preceding denial of intervention.

(b) The questions presented in this appeal did not become moot so as to warrant dismissal under OCGA § 5-6-48 (b) (3).

(c) Although in the motion to dismiss appellees contend that appellant or a non-party lacks standing to appeal, they request the imposition of a frivolous appeal penalty under Rule 26 (b). Because of our decision above, we need not address whether a penalty can be assessed against a stranger.

Appellee’s motion to disriiiss the appeal is denied, and the judgment is reversed for further proceedings in accordance herewith.

Judgment reversed.

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


author: Sognier, Judge. Pope, Judge,

text:
    A89A1158.
    THE STATE v. ESCOBAR.
    (388 SE2d 534)
   Sognier, Judge.

The State appeals from the trial court’s grant of Javier Escobar’s motion to suppress.

At the hearing on the motion, Trooper Rick Ogden of the Georgia State Patrol testified that while on regular patrol on Interstate 95 in Camden County he observed a Dodge van with a New York license plate travel approximately forty yards some two to three feet inside the emergency lane. Ogden decided to stop the vehicle and called for backup before activating his blue lights, after which the van stopped. Ogden asked the driver, appellee, to step to the rear with his driver’s license, at which time Ogden noticed that appellee’s eyes were “real bloodshot” and that he was “somewhat unsteady on his feet.” Appellee produced a Massachusetts driver’s license and the New York registration to the vehicle. Ogden then noticed a strong smell of alcohol about appellee’s person and tested appellee with an alcosensor pretest device which indicated appellee had .12 grams percent alcohol in his blood. Ogden arrested appellee for driving under the influence, searched him for weapons, and then seated him in the rear of the patrol unit. Ogden could not recall whether he put handcuffs on appellee.

Trooper Ogden had ascertained that no one else was in the van when Deputy Sheriff Wade English of the Camden County Sheriff’s Department arrived, and the officers decided to search the vehicle in order to find evidence such as cans or bottles that would indicate whether appellee had been drinking. It is not asserted that appellee consented to the search, and both officers stressed in their testimony that they were not conducting an inventory search of the vehicle. Further, Ogden testified he had called a wrecker service soon after appellee was placed under arrest since there was no one else to take custody of the vehicle. During the search, Trooper Ogden examined the passenger compartment and discovered several beer cans therein while Deputy English examined the outside of the van with a flashlight. English noticed that the body side molding on the van’s left side looked crooked. He then grabbed the misaligned piece of molding and pulled, removing a six foot piece of molding from the outside of the van. The molding had been attached to the van with Velcro, which Ogden said was not visible on the outside of the molding but which English testified was slightly visible. By pulling the molding off, a crack of approximately one inch near the bottom of the van was revealed. English shined his flashlight into the crack and observed yellow and brown wrapped material. The compartment was later accessed by drilling into the vehicle, and eighteen individually wrapped kilogram packages of cocaine were recovered.

Ogden testified that he made the search incidental to the custodial arrest of appellee on the DUI charge. When questioned by the trial court as to why he pulled the molding off the van, English testified that he did so because he saw something “that was not right on the vehicle in my experience, something that I thought needed to be checked. I did not know what was in, why it was like that, and what was in there. I thought it needed to be investigated.”

Pretermitting arguments regarding the alleged pretextual nature of the stop, even assuming the search was conducted pursuant to a lawful stop and arrest, we agree with the trial court that the aspect of the search involving the removal of the six foot strip of body molding, in turn revealing the cracked access to the contraband compartment, was illegal. The rule established in New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981) is that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile,” (footnotes omitted) because that is the area into which an arrestee might reach in order to grab a weapon or evidence of the crime for which he was arrested. Id. at 460. Here, however, while lawfully searching the van either to remove any weapons or to obtain evidence relevant to the crime for which appellee had been charged, i.e., DUI, Deputy English stepped outside the parameters of a legal search when he pulled the body molding from the vehicle. Even the State does not suggest that the removal of the body molding was part of the deputy’s search for weapons or evidence of the crime for which appellee was stopped, and English’s own testimony reveals that his action was not the result of any suspicion, based on training or prior experience, that contraband would be found behind the body molding. “Feelings that something is ‘wrong’ or ‘amiss,’ like inarticulate hunches, are not sufficient to justify a seizure under the Fourth Amendment.” State v. Combs, 191 Ga. App. 625, 628 (382 SE2d 691) (1989). Nor are we able to find that English’s actions fall within the “plain view” doctrine. In Arizona v. Hicks, 480 U. S. 321 (107 SC 1149, 94 LE2d 347) (1987), the U. S. Supreme Court determined that an officer’s action in picking up a piece of expensive stereo equipment simply to record the serial number while conducting a search of the “squalid” apartment for evidence relating to a shooting, id. at 323, did not fall within the “plain view” doctrine and thus was a constitutionally impermissible search. In view of the facts in the case at bar, where the contraband could not be seen by “cursory inspection,” id. at 328, but rather could be seen only after the deputy detached a six foot strip of molding in order to reveal the crack that gave visual access to the contraband, we are constrained to agree with appellee that this search falls squarely within Arizona v. Hicks, as the deputy’s “moving of the [molding] . . . did constitute a ‘search’ separate and apart from the search for [weapons or evidence of appellee’s DUI] that was the lawful objective of his [search of the vehicle.]” Id. at 324-325. Nor was the deputy “[m]erely inspecting” the van during the authorized search pursuant to a lawful arrest when he pulled the six feet of body molding off the van. Id. at 325. Compare State v. Field, 188 Ga. App. 639 (373 SE2d 815) (1988). Rather, it is apparent Deputy English was “taking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the [van] or its contents, [and thereby] did produce a new invasion of [appellee’s] privacy unjustified by the exigent circumstance that validated the [search incident to a lawful arrest.]” Arizona v. Hicks, supra at 325.

“ ‘Factual and credibility determinations . . . made by a trial judge after a suppression hearing must be accepted by appellate courts unless such determinations are clearly erroneous. (Cits.)’ [Cit.]” State v. Louis, 185 Ga. App. 529, 530 (364 SE2d 896) (1988). “ ‘In the absence of evidence of record demanding a finding contrary to the judge’s determination, this court will not reverse the ruling sustaining a motion to suppress. (Cit.)’ [Cit.]” State v. Combs, supra at 627. The trial court’s grant of appellee’s motion to suppress was not clearly erroneous and therefore we will not disturb it on appeal.

Judgment affirmed.

Banke, P. J., and Pope, J., concur specially.

Pope, Judge,

concurring specially.

I am constrained by the ruling of the United States Supreme Court in Arizona v. Hicks, 480 U. S. 321 (107 SC 1149, 94 LE2d 347) (1987) to concur with the affirmance of the trial court’s order suppressing the evidence of contraband in this case. I lament with Justice Scalia that “ [i]t may well be that... no effective means [to investigate suspicious circumstances] short of a search exist. But there is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.” Id. at 329.

As illustrated by this and other recent cases (see Amato v. State, 193 Ga. App. 459 (_SE2d_) (1989), drug traffickers are becoming more ingenious in their methods of concealing contraband in such a way that no ground exists for an investigating officer to find probable cause to conduct a warrantless search. Yet this officer may have a strong inarticulable hunch, based on extensive experience in law enforcement, that a situation is suspicious or the circumstances amiss. As here, the contraband may be concealed in such a way that the search cannot be justified under the several exceptions permitting warrantless searches. The “automobile exception” still requires probable cause to believe evidence of a crime is in the vehicle. See Carroll v. United States, 267 U. S. 132 (45 SC 280, 69 LE 543) (1924). A search of the passenger compartment of the automobile may be made incident to a lawful arrest but such a search may not extend to compartments of the automobile not accessible to the arrestee. See Chimel v. California, 395 U. S. 752 (89 SC 2034, 23 LE2d 685) (1969). The “plain view” doctrine requires that the object in plain view must, without further manipulation or search by the officer, establish probable cause to seize the plainly visible evidence. See Arizona v. Hicks, supra. Even consent may not justify the search if it does not expressly extend to the particular area searched. See State v. Diaz, 191 Ga. App. 830 (383 SE2d 195) (1989).

Decided November 14, 1989.

Glenn Thomas, Jr., District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellant.

Grayson P. Lane, for appellee.

On the one hand, innocent individuals should not be subject to intrusive, property-damaging searches on a mere suspicion that something in or on the automobile is amiss. On the other hand, we cannot afford to allow drug traffickers, lawfully detained for an investigative stop or for some other unrelated offense, to be released to spread their poison in our society because they were clever enough to conceal their contraband in such a way that it does not arouse a suspicion sufficient to establish probable cause for a search. The investigating officer needs a practical solution to the problem identified by Justice Scalia — an effective means, short of an unconstitutional search, to investigate suspicious circumstances. The United States Supreme Court has held that exposure of personal effects located in a public place to a trained canine does not constitute a search within the meaning of the Fourth Amendment. United States v. Place, 462 U. S. 696 (103 SC 2637, 77 LE2d 110) (1983). Thus, the solution I propose is that a drug-sniffing dog accompany each officer patrolling a highway known to be a drug corridor. The positive reaction of a drug-sniffing dog would have provided the probable cause necessary in this case to search areas of the vehicle not otherwise subject to a search incident to the lawful arrest of the driver.

I am authorized to state that Presiding Judge Banke joins in this special concurrence.