text:
    A90A1351.
    In the Interest of L. E. S., a child.
    (398 SE2d 809)
   Pope, Judge.

L. E. S., age 13, was adjudicated delinquent for the offense of aggravated sodomy. On appeal he argues that the juvenile court erred in allowing into evidence a confession he made to police.

The record shows that the victim’s mother allowed L. E. S. to babysit her three small children while she went with L. E. S.’s mother and others to hear a band at a nearby night club. During the evening, L. E. S. called the fire department emergency service and reported that the victim had been hurt in a fall. When the authorities responded, they found L. E. S. alone with the children. The victim was on the couch. L. E. S. told the fireman that the victim was bleeding from the buttocks. The fireman asked the 3-year-old victim if L. E. S. had tried to hurt him and the victim indicated yes. The mother was called and the victim was taken to the hospital, as was L. E. S. and his mother. At the hospital, the examining physician determined that the injury most likely occurred as a result of penetration by a penis. Detective Israel of the Crimes Against Children Unit met with the mother of L. E. S and asked her permission to talk with L. E. S. She agreed. Detective Israel then read the Miranda rights to L. E. S. and his mother. Because L. E. S. was a juvenile, Detective Israel stopped after reading each right and asked both L. E. S. and his mother if each understood the right he had just read. After each replied yes, he had each put his and her initials beside that right on the waiver form. Upon completing the giving of the Miranda rights and explaining the waiver, L. E. S. and his mother signed the form. Detective Israel began questioning L. E. S. After the detective told L. E. S. that he did not believe the story about the fall, he asked L. E. S. if he would like to talk without his mother present and L. E. S. said that he would. The mother stepped outside and L. E. S. confessed to putting his penis in the child’s rectum. Later, at the police station, L. E. S. repeated the confession and it was recorded on tape. Held:

Decided November 6, 1990.

Jeffrey A. Bashuk, for appellant.

Robert E. Keller, District Attorney, Deborah N. Marón, Margot S. Roberts, Assistant District Attorneys, for appellee.

In Riley v. State, 237 Ga. 124, 128 (226 SE2d 922) (1976), the Supreme Court established a “totality of the circumstances” test to determine whether a waiver of rights by a juvenile is valid. We will analyze the waiver upheld in this case by the juvenile court in light of the nine factors listed by the court in Riley, supra: (1) Age of the accused; (2) education of the accused; (3) knowledge of the accused regarding both the substance of the charge against him and his right to consult an attorney and to remain silent; (4) whether the accused is held incommunicado or allowed to consult with relatives, friends or an attorney; (5) whether the accused was questioned before or after formal charges had been filed; (6) methods used in questioning; (7) the length of interrogation; (8) whether vel non the accused refused to give statements on prior occasions; and (9) whether the accused repudiated an extra-judicial statement at a later date.

The record shows that L. E. S. was 13 and in the sixth grade. He had a reading comprehension level of approximately mid-seventh grade. The detective told both L. E. S. and his mother the nature of the crime and explained in particular detail each of the Miranda warnings. L. E. S. was not held incommunicado and when he was questioned without his mother present, she could observe the questioning through a window and he could see her. Questioning did take place before formal charges were made. Questioning was done in a low-key manner and the statement was obtained within a matter of minutes after the session began. L. E. S. and his mother cooperated at all times and L. E. S. never indicated that he did not wish to talk. At the hearing, L. E. S. did repudiate his confession. However, in his testimony he gave several conflicting stories about what happened and admitted that he was lying about some of it and that he could have done the act but that he did not believe that he had done it.

After carefully reviewing the record, we hold that the juvenile court did not err in finding that the waiver was given freely and voluntarily. See also C. R. T. v. State, 148 Ga. App. 628 (252 SE2d 58) (1979). Further, we note that there was substantial evidence, other than the statement, linking L. E. S. to the delinquent act.

Judgment affirmed.

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


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A90A1430.
    HOLLAND v. THE STATE.
    (398 SE2d 810)
   Cooper, Judge.

Appellant was convicted by a jury of armed robbery and brings this appeal from the denial of his motion for new trial.

At trial, the victim of the robbery testified that during her shift as a night clerk at a motel, appellant first appeared and tried to enter the motel. Finding the door locked, appellant went to the drive-in window, inquired about the price of the rooms, told the victim about a leak in one of the rooms, and then left. Several minutes later, the victim heard part of the window fall to the floor and saw appellant at the window. Upon approaching the window, the victim saw appellant pointing a gun barrel at her and appellant asked her for money. The victim described the type of hat and gloves appellant was wearing and stated that the barrel of the gun was covered with a cloth and appeared to be made of a silver metal. The victim gave appellant the money in the register drawer and when appellant left, the victim looked out the window and saw a car leaving the lot which she described as being an older model, possibly a Chevrolet, green on the bottom and white on the top. A policeman who heard the robbery alert over the radio saw a car fitting this description and pulled it over. The officer testified that the car stopped; appellant looked out the door and sped off. A chase ensued which ended in an accident between appellant’s car and a police car. Appellant and his co-defendant were in the car and were arrested at the scene. A cap and gloves fitting the description given by the victim, a silver toy gun, $151.50 in cash and other items were found in the car at the scene. The victim estimated that $150 to $155 was taken in the robbery. The victim identified appellant at trial as the person who robbed her. Appellant and his co-defendant were tried in the same trial; the co-defendant was acquitted and appellant was convicted.

1. Appellant’s first enumeration of error states the trial court erred by failing to sever the trials of appellant and his co-defendant. The record reveals that, although the co-defendant made a motion to sever, appellant never joined in this motion or made a motion on his own. Appellant’s fourth enumeration raises as error the admission of the items found in the car because the stop was not based on probable cause. A careful review of the transcript reveals that appellant either made or joined in his co-defendant’s objection to the introduction of certain evidence on the grounds that there was no connection or relevancy between the items and the testimony adduced at trial. Never was an objection raised as to the illegality of the stop of the car. These two enumerations were first raised at the hearing on the motion for new trial. “ ‘Where appellant asserts error and no objection is made at the trial it cannot be made the basis of appellate review, either as a ground of a motion for new trial, or as a ground of enumerated error on direct appeal.’ [Cit.] Appellate courts review enumerations for correction of errors of law committed by the trial court — where motions or objections are properly presented for a ruling by the trial court. [Cit.] Enumerated errors which raise issues for the first time in a motion for new trial or on appeal present nothing for review. [Cit.]” Fowler v. State, 155 Ga. App. 76 (2) (270 SE2d 297) (1980). See Pulliam v. State, 236 Ga. 460, 465 (224 SE2d 8) (1976).

Decided November 6, 1990.

Wallace D. Washington, for appellant.

W. Fletcher Sams, District Attorney, William T. McBroom, As sistant District Attorney, for appellee.

2. Appellant next contends that the trial court erred in denying his motion for a mistrial based on the fact that several members of the jury saw appellant in handcuffs in the hallway to the courtroom as he was being escorted from the public elevators. There is no evidence that appellant appeared or sat in the courtroom itself in handcuffs during the trial. After the verdict was rendered, the jury was polled and those jurors who witnessed appellant in handcuffs stated that this did not in any way affect their decision in the case. “ ‘This was a matter which addressed itself to the discretion of the trial court. Such a situation is not ground for mistrial.’ [Cits.]” Howard v. State, 144 Ga. App. 208, 213 (8) (240 SE2d 908) (1977).

3. Appellant asserts that the court erred in denying his motion for new trial because the victim’s testimony was unreliable and insufficient to support the conviction. The “any evidence” test is the proper standard to use in reviewing the denial of a motion for a new trial on the general grounds. Cooksey v. State, 149 Ga. App. 572 (1) (254 SE2d 892) (1979). At trial, the victim gave a positive identification of appellant as the person who robbed her. It was elicited at trial that she was unable to give such positive identification until trial. Since the weight of the testimony and credibility of the witnesses are questions for the trier of fact, this court considers only the sufficiency of the evidence. Helms v. State, 191 Ga. App. 283, 284 (381 SE2d 428) (1989). Considering the victim’s testimony, the police officers’ testimony, and the evidence admitted at trial, we conclude that there was evidence to support the conviction and the court did not err in denying the motion for new trial.

Judgment affirmed.

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


author: Carley, Chief Judge.

text:
    A90A1456.
    LASSETER v. THE STATE.
    (399 SE2d 85)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of one count of child molestation and two counts of enticing a child for indecent purposes. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. As to his convictions for enticing a child for indecent purposes, appellant enumerates the general grounds.

“A ‘crime’ is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.” OCGA § 16-2-1. The crime of enticing a child for indecent purposes in violation of OCGA § 16-6-5 requires the showing of a joint operation of the act of enticing a child and the intention to commit acts of indecency or child molestation. Accordingly, neither the act of enticing a child without the requisite intent nor the intent to commit acts of indecency or child molestation without the requisite act would constitute a crime under OCGA § 16-6-5.

The evidence in the instant case showed that appellant lived in a house with his son, daughter-in-law and grandson. The house had a pool and a poolhouse. The victims of appellant’s alleged criminal enticement were two friends of appellant’s young grandson who were frequent visitors to the house. The evidence would certainly authorize a finding that the house itself was an enticing place for the victims to visit because of the swimming pool, their friendship with appellant’s grandson and the existence of what the trial court termed “a generally attractive convivial atmosphere.” However, the victims’ self-induced enticement resulting from the mere presence of such attractive-but-otherwise innocuous conditions on the premises would not be evidence that appellant himself had committed any act with the requisite intent whereby the victims were enticed to the premises. “The offense described in OCGA § 16-6-5, ‘enticing a child for indecent purposes,’ has been held to include the element of ‘asportation.’ [Cit.]” Cimildoro v. State, 259 Ga. 788, 789 (1) (387 SE2d 335) (1990). Accordingly, in the absence of sufficient probative evidence that appellant himself enticed the victims onto the premises with the present intention to commit acts of indecency or child molestation after they had been enticed there, his convictions for violating OCGA § 16-6-5 cannot stand. Sanders v. State, 145 Ga. App. 73 (243 SE2d 274) (1978).

There was probative evidence that, on occasion, it was appellant rather than his grandson who would extend to the victims an invitation to pay a visit to the house. There is, however, no probative evidence that, on any such occasion, appellant had done so with the requisite criminal intent. There was also probative evidence that, on occasion, appellant did have the requisite intent to commit acts of indecency or child molestation while the victims were visiting the house because he had actually committed such acts. There is, however, no probative evidence that, on any such occasion, it had been appellant, rather than his grandson, who had extended to the victims the invitation to pay a visit to the house. The State cites only one instance wherein it contends that the evidence was sufficient to show the joint operation of appellant’s act of enticing a victim to the house and his intent to commit acts of indecency or child molestation. A victim did testify that on one of those occasions when he was subjected to appellant’s acts of indecency or child molestation while visiting the house the invitation for his visit had been extended by appellant’s grandson who had told him: “[Appellant] and me want you to come over.” Contrary to the State’s contention, however, this testimony is non-probative hearsay insofar as it purports to be evidence that it was appellant who had extended the invitation to the victim.

It is apparently the State’s primary contention that, by adducing probative evidence that appellant himself would occasionally invite the victims to the house and probative evidence that he had committed acts of indecency or child molestation on some occasions when the victims were visiting, it met its burden of showing sufficient evidence to authorize appellant’s convictions for violating OCGA § 16-6-5 notwithstanding the lack of probative evidence that any of the acts of indecency or child molestation had ever occurred after any of the invitations that had been extended by appellant himself. Under this theory, mere proof that appellant had actually committed an act of indecency or child molestation while the victims were visiting the house would demonstrate that the otherwise innocuous invitations that he had extended on any and all other occasions had been made with the requisite intent. However, such a theory cannot be sanctioned under OCGA § 16-2-1 which requires a showing of the joint operation of the proscribed act and the intention. Under the theory advanced by the State, it could adduce evidence of the extension of 100 otherwise innocuous invitations for a child to visit with only the last visit resulting in the commission of an act of indecency or child molestation and thereby secure a conviction for 100 counts of enticing a child.

Although a conviction under OCGA § 16-6-5 need not be based upon evidence that an act of indecency or child molestation was accomplished or even attempted, a conviction under that statute must nevertheless be based upon some evidence that an act of indecency or child molestation was the intended motivation for the enticement. Peavy v. State, 159 Ga. App. 280, 282 (1a) (283 SE2d 346) (1981). Thus, evidence of a child’s enticement to a location followed by the mere suggestion of an act of indecency or child molestation will authorize a conviction. Peavy v. State, supra. While the State in the instant case showed that appellant had enticed the victims to the house by extending them apparently innocuous invitations on some occasions and that appellant had actually committed acts of indecency or child molestation on the victims while they were visitors in the house on some other occasions, it never proved a single instance wherein an act of indecency or child molestation, whether merely suggested or actually perpetrated, was the intended motivation for appellant’s invitation. The evidence adduced would clearly authorize a jury to find that appellant was guilty of the acts of child molestation that he actually committed while the victims were visiting the house, but it would not authorize a jury to find that appellant was also guilty of the separate crime of enticing the victims to the house for indecent purposes. Sanders v. State, supra. It follows that appellant’s two convictions for violating OCGA § 16-6-5 must be reversed.

Decided November 6, 1990.

Bray, Hancock & Cook, B. Thomas Cook, Jr., Alan J. Baverman, for appellant.

Robert E. Keller, District Attorney, Tracy G. Gladden, Assistant District Attorney, for appellee.

2. The trial court did not err in holding that the State had fully complied with Rule 31.3 and would, therefore, be allowed to introduce evidence of appellant’s commission of similar offenses. See generally Eidson v. State, 182 Ga. App. 321, 322 (2) (355 SE2d 691) (1987); Hall v. State, 181 Ga. App. 92, 93 (1a) (351 SE2d 236) (1986).

3. We find no abuse of discretion in the trial court’s decision to give the jury an Allen charge. See generally Brown v. State, 177 Ga. App. 284 (1) (339 SE2d 332) (1985).

4. The trial court correctly denied the motion to suppress evidence seized from the house pursuant to a warrant issued some four months after appellant’s indictment. Bayles v. State, 188 Ga. App. 437 (373 SE2d 266) (1988).

5. The judgment of conviction and sentence for child molestation are affirmed. The judgments of conviction and sentences for enticing a child for indecent purposes are reversed.

Judgments affirmed in part and reversed in part.

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


author: Banke, Presiding Judge.

text:
    A90A1896.
    DAILEY v. THE STATE.
    (398 SE2d 812)
   Banke, Presiding Judge.

The appellant was convicted of possession of cocaine with intent to distribute based on evidence that 34 zip-lock plastic bags containing a total of approximately 18 grams of cocaine had been seized from inside his car following a traffic stop. The evidence additionally showed that the appellant was in possession of a beeper and $335 in cash at the time of his arrest. Held:

1. Construed in the light most favorable to the verdict, the evidence introduced at trial was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the offense charged. Accord Horton v. State, 194 Ga. App. 797 (1) (b) (392 SE2d 259) (1990); Breedlove v. State, 189 Ga. App. 527 (1) (376 SE2d 222) (1988). See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The trial court did not err in admitting the contraband over the appellant’s objection that the chain of custody had not been established in such a manner as to negate the possibility of tampering. “The burden is on the state ‘ “to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution.” (Cit.)’ [Cit.] ‘However, the State need not negate all possibility of tampering, and “need only establish reasonable assurance of the identity” of the confiscated evidence. (Cits.)’ [Cit.]” Wilson v. State, 193 Ga. App. 183 (1) (387 SE2d 413) (1989). The evidence presented by the state in this case was amply sufficient to meet this burden.

3. The appellant contends that the trial court erred in allowing the state to present as similar transaction evidence a certified copy of his conviction on a previous indictment charging him with selling cocaine and possessing cocaine with intent to distribute. The appellant objected to this evidence on the following grounds: (1) Because the state had assertedly failed to notify him at least ten days before trial of its intention to present such evidence, as required by Rule 31.1 of the Uniform Superior Court Rules; (2) because the notice provided by the state was misleading in that it specified that the evidence would be offered “in aggravation should the sentencing phase of the trial be reached”; and (3) because the evidence “injected his character into evidence.”

These objections were properly overruled. The record reveals that the notice was mailed to defense counsel 11 days prior to trial. Although defense counsel assured the court that items sent to him by mail always took more than a day to reach him, he was not able to recall when he had actually received the material in question and thus was unable to state positively that he had not received it at least ten days before trial. Furthermore, the state’s attorney stated without contravention that he had spoken with defense counsel over the telephone two days before mailing the notice and had told him at that time of the state’s intention to introduce this evidence. The appellant does not contend that he was prejudiced in any way by not having received this material sooner, and we find no basis under these circumstances for concluding that the notice was timely.

Decided November 6, 1990.

J. Douglas Sexton, for appellant.

Thomas C. Lawler III, District Attorney, Thomas N. Davis, Jr., Debra K. Turner, Assistant District Attorneys, for appellee.

We similarly find no merit in the appellant’s contention that the notice conveyed the misleading impression that the prior convictions would only be used during the sentencing phase of the trial. The language at issue was quite plainly intended to inform the appellant that the convictions would also be used during that phase, in the event he were found guilty. The notice was styled, “Notice of Prosecution’s Intent To Present Evidence of Similar Transactions,” and it would not have mattered whether the prior offenses were similar or dissimilar to the one for which he was to be tried if they were only going to be used in aggravation of punishment. Finally, the prior offenses were sufficiently similar to the present offense to be admissible as evidence of motive, intent and bent of mind, which issues were particularly relevant in view of the appellant’s contention that there was no evidence that he had intended to distribute the cocaine found in his possession in the present case. Accord Sultenfuss v. State, 185 Ga. App. 47 (2) (363 SE2d 337) (1987).

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


author: Pope, Judge.

text:
    A90A0734.
    SHENNETT v. PIGGLY WIGGLY SOUTHERN, INC.
    (399 SE2d 476)
   Pope, Judge.

Plaintiff fell in the produce department while shopping at a Piggly Wiggly supermarket. At the time an employee was doing inventory in the produce area. Plaintiff told employees she hurt her knee and she had it checked at the hospital immediately after leaving the store. Her knee improved, but she later alleged the fall in Piggly Wiggly caused severe back pain resulting in the loss of income and her job. Plaintiff had previously injured her back three times in 1984, the third time requiring hospitalization. A jury trial resulted in a verdict for the defendant, Piggly Wiggly Southern, Inc., upon which a judgment was entered. Plaintiff appeals and brings several enumerations of error regarding the court’s charge to the jury.

1. Plaintiff claims error in the trial court’s charge on contradictory, vague, or equivocal testimony given by the plaintiff. However, the charge was warranted since plaintiff’s testimony varied regarding key elements of the case, such as location of employees in the area in which she fell and whether any foreign matter was on the floor.

The charge instructed the jury that plaintiff would not be entitled to recover if they found her testimony to be self-contradictory, vague or equivocal “and there is no other evidence to support her right to recover. . . .” This is a correct statement of the law and, when considered in light of the charge as a whole, was not misleading. See Tate v. Gibson Prods. Co., 137 Ga. App. 615, 617 (5) (224 SE2d 465) (1976). Those cases cited by plaintiff in support of her argument that the instruction was in error involved the charge that the plaintiff could not recover if the plaintiff’s self-contradictory, vague or equivocal testimony, construed most strongly against plaintiff, supported a verdict against the plaintiff. See Weathers v. Cowan, 176 Ga. App. 19 (2) (335 SE2d 392) (1985); Maurer v. Chyatte, 173 Ga. App. 343 (3) (326 SE2d 543) (1985). The charge in those cases did not permit the jury to consider other evidence which would support a verdict in favor of plaintiff. Here, by contrast, the charge correctly stated that the plaintiff would not be entitled to recover if the jury found her testimony to be self-contradictory and no other evidence was presented to support her claim.

2. Second, plaintiff maintains error in the charge that when there are no unusually dangerous conditions, an owner is not required to provide a constant patrol. Plaintiff alleges the charge is unnecessary because she never claimed the area was unusually dangerous. However, plaintiff raised the issue of defendant’s duty to keep the floor free from dangerous substances by seeking to show violation of the store’s sweeping policy and that defendant should have known of any foreign substances on the floor. The trial court did not err in correctly instructing the jury on the limits placed upon a proprietor’s duty of care.

3. Neither did the trial court err in instructing the jury on the notion of constructive knowledge. We disagree with the plaintiff’s assertion that the evidence showed defendant’s actual knowledge of the presence of the alleged foreign substance on the floor and that no evidence was presented from which the jury could find mere constructive knowledge of the substance. Although plaintiff attempted to show an employee was working with vegetables in the immediate area where she fell, immediately before she fell, so as to establish defendant’s actual knowledge of the foreign substance (see Flowers v. Kroger Co., 191 Ga. App. 464 (382 SE2d 184) (1989)), conflicting evidence was presented concerning the location of the employee. Thus, the evidence did not, as a matter of law, require the jury to find defendant had actual knowledge of the alleged foreign substance and defendant was entitled to an instruction concerning liability on the ground of constructive knowledge of the hazard.

4. Defendant raised the defense of legal accident in its answer to plaintiff’s complaint. A party is entitled to plead alternative theories of defense. OCGA § 9-11-8 (e) (2). Thus, even though defendant also pleaded and presented evidence that plaintiff’s injuries, if any, were proximately caused by her own negligence or assumption of risk, a charge on legal accident was warranted. This was not a case in which the alleged injury had to be the proximate result of the negligence of one party or the other. Cf. Chadwick v. Miller, 169 Ga. App. 338 (1) (312 SE2d 835) (1983). The fall possibly “could have been the result of ‘an event not proximately caused by negligence but which instead (arose) from an unforeseen or unexplained cause. (Cit.)’ [Cit.]” Sellers v. Lawrence, 178 Ga. App. 734 (344 SE2d 710) (1986). The trial court did not err in charging the jury on the theory of legal accident.

5. Plaintiff’s enumerations of error five and six relate to charges concerning expert medical testimony. A review of the record reveals these charges were not argumentative or unadjusted to the record. The argument that these charges contain erroneous statements of the law was not raised in the trial court and thus cannot be raised for the first time on appeal. See Kent v. Henson, 174 Ga. App. 400 (2) (330 SE2d 126) (1985).

6. Because we find no error in the charges given to the jury, as set forth above, we hold the trial court did not err in denying plaintiff’s motion for new trial.

Judgment affirmed.

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

On Motion for Rehearing.

On motion for rehearing plaintiff argues for the first time that the charge on contradictory, vague or equivocal testimony was erroneous because it is applicable only when the contradictory testimony is given at the trial and is not applicable when, as here, the contradictory testimony was given on some previous occasion. See Slaton Machine Sales v. Owens-Illinois, 138 Ga. App. 80 (3) (225 SE2d 473) (1976). Even if plaintiff’s only contradictory testimony was that given at pre-trial deposition, and introduced at trial for impeachment, plaintiff waived this objection by failing to raise it below. The only objections raised to the subject charge were the general objections that “it is inapplicable to the evidence . . . not adjusted to the evidence ... is argumentative and would be more properly covered under other charges . . and the specific objection that “there is other evidence other than her testimony.” The trial court had no opportunity to rule on the error now asserted because it was not raised in a “reasonably definite” manner. See OCGA § 5-5-24 (a). The ground for objection must be raised below to be pursued on appeal. See Velkey v. Grimes, 214 Ga. 420 (105 SE2d 224) (1958). The ground raised for the first time on motion for rehearing was not at trial “stated distinctly enough for a ‘reasonable’ trial judge to understand its nature, enabling him to rule intelligently on the specific point.” Christiansen v. Robertson, 237 Ga. 711, 712 (229 SE2d 472) (1976). This is not one of those rare instances of fundamental error requiring reversal despite the failure to raise the objection below. See OCGA § 5-5-24 (c).

Decided September 4, 1990

Rehearing denied November 7, 1990

Dozier, Akin & Lee, L. Z. Dozier, Jr., for appellant.

Martin, Snow, Grant & Napier, Walter E. King III, John C. Edwards, for appellee.

Motion for rehearing denied.


text:
    A90A1058.
    PERRYMAN v. DeKALB COUNTY HOSPITAL AUTHORITY et al.
    (398 SE2d 745)
   Carley, Chief Judge.

The relevant facts in this appeal are as follows: In September of 1985, appellant-plaintiff’s wife died after undergoing a medical procedure which was performed at appellee-defendant DeKalb County Hospital Authority’s (Authority) facility by appellee-defendant Dr. J. Michael Luckett. Dr. Luckett is affiliated with appellee-defendant Radiology Associates of DeKalb, P.C. (RAD) and is an independent staff physician at the Authority’s facility. After his wife’s death, appellant filed the instant suit. As against Dr. Luckett, he alleged a claim for medical malpractice and, as against the Authority and RAD, he alleged a claim for the negligent hiring and retention of Dr. Luckett. The Authority filed a motion for summary judgment and Dr. Luckett and RAD filed motions in limine to prevent appellant from introducing at trial certain allegedly inadmissible evidence adduced on discovery. The trial court granted all three motions. Appellant appeals directly from the grant of summary judgment in favor of the Authority, enumerating as error not only that order, but also the grant of Dr. Luckett’s and RAD’s motions in limine.

1. The trial court’s order granting summary judgment in favor of the Authority states that “[w]here a motion for summary judgment is made, plaintiff has the burden of proving that a background check would have revealed any potentially dangerous characteristics of the employee. [Cits.]” (Emphasis supplied.) If this is not an entirely erroneous statement, it nevertheless is not an entirely correct one. There is no burden on the non-moving party unless and until a motion for summary judgment has been supported by a prima facie showing of entitlement to judgment as a matter of law. Herman v. Walsh, 154 Ga. App. 712 (269 SE2d 535) (1980). Accordingly, before any evidentiary burden could be shifted to appellant, the initial burden was on the Authority to make a prima facie showing either that there were no pre-existing circumstances in Dr. Luckett’s work history such as would put it on notice of his incompetency to perform procedure or that it had acted with reasonable care in hiring and retaining Dr. Luckett as an independent staff physician with authority to perform that medical procedure. See generally Sheffield v. Zilis, 170 Ga. App. 62, 63 (1) (316 SE2d 493) (1984).

Appellant had alleged that Dr. Luckett was not competent to perform the medical procedure because of his illegal drug use. However, this allegation was clearly pierced by Dr. Luckett’s unequivocal denial that he had ever used illegal drugs and, in opposition to this denial, appellant produced no probative evidence to the contrary. Mere unsubstantiated rumors of Dr. Luckett’s illegal drug use would constitute non-probative hearsay. While it may be negligent to hire or retain a physician whose performance is compromised by illegal drug use, it is not negligent to hire or retain a physician who is only rumored to use illegal drugs. Actionable negligence consists of hiring or retaining an otherwise incompetent physician, not in hiring and retaining an otherwise competent physician who has merely been the target of slanderous gossip. “No actionable negligence was shown by the fact that [the Authority] did not investigate [Dr. Luckett’s] past history [for alleged use of illegal drugs], since [his] denial of any [use of illegal drugs] was uncontroverted [by any competent evidence].” Odom v. Hubeny, 179 Ga. App. 250, 252 (2) (345 SE2d 886) (1986). Compare Harvey Freeman & Sons v. Stanley, 259 Ga. 233 (378 SE2d 857) (1989), aff’g in part and rev’g in part 189 Ga. App. 256 (375 SE2d 261) (1988) (wherein the evidence demonstrated both knowledge and rumor of the employees’ admitted incompetence).

Dr. Luckett’s deposition was also otherwise sufficient to show that there were no other circumstances in his work record such as would demonstrate his pre-existing incompetency to perform the medical procedure. Thus, the burden of producing some evidence to the contrary was shifted to appellant. Appellant urges that this burden was met by evidence that the Authority was aware that, on February 28, 1985, Dr. Luckett had engaged in “strange” conduct by issuing a medical excuse for presentation to the employer of an individual. This medical excuse stated that the individual would be “having radiological examinations of the upper and lower GI tract at [the Authority’s hospital facility] performed by [Dr. Luckett] on March 5 and March 6, 1985.”

This incident was deemed “strange” by the Authority only because the individual was not scheduled for any procedures at its facility on those days. There was no showing whether this inaccuracy was the product of Dr. Luckett’s mere inadvertence or his conscious mendacity. In any event, however, this “strange” incident would have no bearing on the liability of the Authority for the negligent hiring or retention of Dr. Luckett. Neither his mere confusion as to dates nor his deliberate issuance of a false medical excuse would show that Dr. Luckett was incompetent to perform the medical procedure which allegedly resulted in the death of appellant’s wife. “Appellant’s claim of negligence against [the Authority] is based upon [Dr. Luckett’s alleged unskillful performance of a medical procedure]. For [the Authority] to be negligent in hiring and retaining [Dr. Luckett], it would be necessary that [the Authority] knew or should have known of [that incompetency] alleged to have resulted in [the death of] appellant’s [wife]. [Cits.] ... To hold . . . that [the Authority] may be found liable for the negligent employment of a [physician] who subsequently commits [an act of alleged malpractice in the performance of a medical procedure] solely because [the Authority] knew or should have know that [the physician had either inadvertently or consciously issued an inaccurate medical excuse], would be tantamount to holding that there is no longer any proximate causation requirement in negligent employment actions in this state.” Edwards v. Robinson-Humphrey Co., 164 Ga. App. 876, 880 (3) (298 SE2d 600) (1982). See also Southern Bell Tel. &c. Co. v. Sharara, 167 Ga. App. 665, 666 (1) (307 SE2d 129) (1983).

Construing the evidence of record most favorably for appellant, a genuine issue of material fact may yet remain as to Dr. Luckett’s negligent performance of the medical procedure which allegedly resulted in the death of appellant’s wife. However, appellant failed to rebut the Authority’s prima facie showing that there were no pre-existing circumstances such as would demonstrate Dr. Luckett’s incompetency to perform that medical procedure. It follows, therefore, that the trial court correctly granted summary judgment in favor of the Authority.

Decided October 17, 1990

Rehearing denied November 7, 1990

Orr & Edwards, W. Fred Orr II, James G. Edwards II, for appellant.

Sullivan, Hall, Booth & Smith, Terrance C. Sullivan, David V. Johnson, Long, Weinberg, Ansley & Wheeler, Earl W. Gunn, Debra E. Levorse, for appellees.

2. The non-probative rumors of Dr. Luckett’s use of illegal drugs and the irrelevant “strange” incident regarding his issuance of the inaccurate medical excuse would be inadmissible insofar as Dr. Luckett’s liability for medical malpractice is concerned. Compare Gunthorpe v. Daniels, 150 Ga. App. 113 (257 SE2d 199) (1979) (discussing the admissibility of evidence regarding the actual treatment afforded to other patients by the defendant in a malpractice action). Accordingly, the trial court correctly granted Dr. Luckett’s motion in limine to preclude appellant from adducing that evidence at trial.

3. Appellant urges that the rumors and the “strange” incident are nevertheless relevant to show notice of Dr. Luckett’s incompetency and should, therefore, be admissible in connection with his negligent hiring and retention claim against RAD.

As discussed in Division 1, it is only Dr. Luckett’s alleged preexisting incompetency to perform the medical procedure that is the relevant inquiry in appellant’s claim for negligent hiring and retention. The “strange” incident would give no notice of that alleged incompetency and, absent probative evidence that Dr. Luckett’s performance had ever been adversely affected by his actual illegal drug use, the rumors would be irrelevant to whether notice of the alleged incompetency had ever been given. Although relevant evidence may be admissible notwithstanding its prejudicial effect, evidence that is both irrelevant and prejudicial is inadmissible. On the basis of the existing record, the evidence excluded on RAD’s motion in limine was clearly irrelevant and prejudicial and the trial court correctly held that such evidence should not be admitted unless and until appellant could demonstrate that it was relevant and not merely prejudicial. Compare Gunthorpe v. Daniels, supra.

Judgment affirmed.

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


text:
    A90A1302.
    HASTINGS et al. v. COURTLAND.
    (398 SE2d 747)
   Carley, Chief Judge.

A simplified statement of the relevant facts in the instant appeal is as follows: Appellant-third-party defendants conveyed property by general warranty deed to Mrs. Fred A. Pickert. Subsequently, Mrs. Pickert conveyed the property by general warranty deed to appelleeplaintiff and another individual. After this conveyance by Mrs. Pickert, Mrs. Jane James filed an action to quiet title to the property and Mrs. Pickert and appellants were joined as parties therein. Mrs. James’ action to quiet title resulted in a decree that, by reason of her adverse possession, she held fee simple title to the property. Appellee then initiated the instant action against Mrs. Pickert, seeking to recover against her for breach of warranty of title, and Mrs. Pickert filed a third-party complaint against appellants. After discovery, appellee moved for partial summary judgment as to the issue of Mrs. Pickert’s liability. The trial court granted partial summary judgment in favor of appellee and appellants appeal from that order.

1. Two of the appellants are the sole shareholders of a corporation which had previously been represented in various labor matters by the same law firm that represents appellee in the instant action and, on this basis, appellants moved to disqualify appellee’s counsel. The denial of this motion to disqualify appellee’s counsel is enumerated as error.

Assuming, for purposes of this appeal only, that appellee and appellants are opposing parties and that the prior representation of the corporation is equivalent to a prior representation of appellants themselves and that the motion to disqualify was timely, appellants have nevertheless “failed to carry their burden of proof under the ‘substantial relationship test,’ which requires that the movant show that the present litigation and the former matter in which [they were] represented by opposing counsel are substantially related. See Crawford W. Long Mem. Hosp. [of Emory Univ.] v. Yerby, 258 Ga. 720 (1) (373 SE2d 749) (1988). . . . Appellants do not show how the [various labor matters at issue in the prior representation are] substantially related to appellants’ [alleged breach of warranty of title]. Appellants even admitted as much in their brief when they stated that [appellee’s counsel ‘is not representing directly adverse parties on substantially related matters]. . . .’ Moreover, there was no evidence that client confidences or secrets had been or would be disclosed, or that any other improper actions had been or would be taken. This case is not like that of Crawford W. Long Mem. Hosp., supra, the holding of which ‘is limited to representation involving the same general subject matter. . . . (C)ases (involving) different general subject matter(s), e.g., adverse representation involving contractual disputes, real-property matters, and unrelated tort claims would not contravene the rule.’ [Cits.]” (Emphasis in original.) Knoxville Med. Investors v. Nat. Healthcorp, 192 Ga. App. 460, 461 (2) (385 SE2d 110) (1989). Not only are the general subject matters entirely different, no impermissible appearance of impropriety arises from the circumstances surrounding the prior’ and current representations. Compare Crawford W. Long Mem. Hosp. v. Yerby, supra at 722 (3). It follows that the trial court correctly denied appellants’ motion to disqualify appellee’s counsel.

Decided October 17, 1990

Rehearing denied November 7, 1990

Schreeder, Wheeler & Flint, David H. Flint, Lynn C. Stewart, for appellants.

Jones, Day, Reavis & Pogue, David J. Bailey, Mary A. Prebula, William S. Jones, for appellee.

2. For the most part, such genuine issues of material fact as appellants urge remain for jury resolution are related to the damages that appellee would be authorized to recover rather than to the liability of Mrs. Pickert for the breach of warranty of title. See OCGA § 44-11-3; Dozier v. Wallace, 169 Ga. App. 126, 128 (3) (311 SE2d 839) (1983); Rowan v. Newbern, 32 Ga. App. 363, 364 (5) (123 SE 148) (1924). Since the trial court granted summary judgment only as to Mrs. Pickert’s liability, it is, of course, immaterial that jury issues may yet remain as to damages.

Insofar as Mrs. Pickert’s liability for breach of warranty of title is actually concerned, it is undisputed that Mrs. James’ paramount title was established in a legal proceeding in which Mrs. Pickert and appellants were joined. Reese v. Manget, 53 Ga. App. 637 (2) (186 SE 880) (1936). The judgment in that legal proceeding establishes that, at the time of the conveyance by Mrs. Pickert, prescriptive title was in Mrs. James and that Mrs. Pickert’s warranty of title was, therefore, breached at the time of her conveyance. Mansell v. Pappas, 156 Ga. App. 272, 273 (2) (274 SE2d 588) (1980). Compare Finn v. Lifsey, 169 Ga. 599 (150 SE 908) (1929). Contrary to appellants’ assertions on appeal, any transactions between Mrs. James and appellee regarding the adjoining parcel would have had no bearing whatsoever on Mrs. James’ right to assert her prescriptive title to that separate parcel which Mrs. Pickert conveyed (see Bridges v. Henson, 216 Ga. 423 (2) (116 SE2d 570) (1960)) and those extraneous transactions certainly would have no current bearing on the validity of appellee’s instant claim for breach of warranty of title, against Mrs. Pickert.

Appellee met the initial burden as a movant for summary judgment and made a prima facie showing of Mrs. Pickert’s liability for breach of warranty of title. In opposition, there was no showing that a genuine issue of material fact remained as to Mrs. Pickert’s liability. It follows that the trial court correctly granted partial summary judgment in favor of appellee.

Judgment affirmed.

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


text:
    A90A1383.
    UPSHAW v. SOUTHERN WHOLESALE FLOORING COMPANY.
    (398 SE2d 749)
   Carley, Chief Judge.

Appellee-plaintiff brought this action, seeking to recover against Alpha Atlanta Floor, Inc. (Alpha) on an account and against appellant-defendant on her guaranty thereof. Appellant filed a timely answer but Alpha did not. The claim being liquidated, a default judgment was entered against Alpha and the case against appellant proceeded to trial. At the close of the evidence, cross-motions for directed verdict were made. The trial court granted appellee’s motion and denied appellant’s motion. Appellant appeals from the resulting judgment that was entered in appellee’s favor.

1. One of the grounds of appellant’s motion for directed verdict was appellee’s purported failure to prove venue and personal jurisdiction. Appellant enumerates this ruling as error.

In the first instance, the defenses of improper venue and lack of personal jurisdiction are properly raised by a motion to dismiss pursuant to OCGA § 9-11-12, not by a motion for directed verdict pursuant to OCGA § 9-11-50. In the second instance, personal jurisdiction and venue were proper in DeKalb County as to appellant because they were proper in that county as to Alpha. “ ‘The only time the defense of lack of jurisdiction over the person of the nonresident (defendant) because of (his) nonresidency would be valid ... is in the event of a judgment in favor of the resident joint defendant. . . . (Cit.)’ [Cit.]” Taylor v. Career Concepts, 184 Ga. App. 551, 552 (1) (362 SE2d 128) (1987). In the instant case, there was no judgment in favor of Alpha. A default judgment had been entered against Alpha. “[T]he case being in default as to [the resident defendant], a verdict against both the resident and nonresident defendant was authorized.” Woods v. Universal C.I.T. Credit Corp., 110 Ga. App. 394, 397 (8) (138 SE2d 593) (1964). See also Smith v. Ross, 168 Ga. App. 817, 818 (310 SE2d 567) (1983).

Appellant’s reliance upon Woods v. Long Mfg., N.C., 150 Ga. App. 499 (258 SE2d 592) (1979) is misplaced. Since that case did not involve a liquidated claim, a default judgment against the resident defendant was properly entered only as to liability and “the jury found the resident defendant, although in default [as to liability], to be not liable for money damages.” Woods v. Long Mfg., N.C., supra at 501. “Because no damages were assessed against [the resident defendant in Woods], he was absolved from any liability in th[at] case. This amounted] to a verdict in his favor ([cit.]). . . .” O’Neill v. Western Mtg. Corp. of Ga., 153 Ga. App. 151, 152 (264 SE2d 691) (1980). In contrast, the instant case did involve a liquidated claim and a default judgment against Alpha was properly entered as to both liability and damages. Thus, damages were assessed against Alpha and it was not absolved from any liability in this case.

2. The guaranty upon which appellant’s liability is premised reads as follows: “For value received and in consideration of [appellee] extending credit to and selling goods to [Alpha] the undersigned hereby unconditionally guarantees payment of any sum(s) of money as may now be due or may hereafter become due from [Alpha] to [appellee], including 15% attorneys fee if it becomes necessary to enforce this guaranty of payment filed through an attorney at law.” Appellant enumerates as error the trial court’s denial of her motion for directed verdict on the ground that the evidence conclusively established that she had never received notice of appellee’s acceptance of this guaranty.

“In determining whether an offer to become a guarantor must be accepted by notice or by the extension of credit, it is only necessary to look to its terms. In the present case, the language of the offer plainly contemplates that it should be accepted by the actual [extension of credit and sale] of the goods [to Alpha], and not by a notice that the guarantors had been accepted [by appellee] and that [credit would be extended and] the goods would be [sold to Alpha]. The offer contemplated the formation of a contract in which an act should be given in exchange for a promise; that the act should be both the acceptance of the offer and the consideration for the promise. ... In the case of Sanders v. Etcherson, 36 Ga. [404, 405 (5) (1867)], the exact point now under discussion was decided, and it was held that where an offer to become a guarantor contemplated acceptance by the actual extension of credit, it was not necessary for the creditor to notify the guarantor of his intention to extend credit. It was ruled that the act of extending credit was the consideration which converted the offer into a binding promise.” Sheffield v. Whitfield, 6 Ga. App. 762, 764-65 (2) (65 SE 807) (1909). See also Ferguson v. Atlanta Newspapers, 93 Ga. App. 622, 623 (7) (92 SE2d 321) (1956). “[A]s stated in the Sanders case, supra, ... ‘I guaranty the payment of any goods which A.B. delivers to C.D.’ is a present guaranty, although the delivery of the goods is in the future, and ‘the party to whom it is given may act upon it without further communication.’ ” Wehle v. Baker, 97 Ga. App. 111, 113 (1c) (102 SE2d 661) (1958).

Thus, the absolute present guaranty that was given to appellee, as the creditor, by appellant, as an officer of the debtor corporation, is entirely distinguishable from the general letter of credit that was at issue in Brown Grocery Co. v. Planters Bank of Americus, 18 Ga. App. 429 (89 SE 523) (1916). It follows that the trial court correctly denied appellant’s motion for directed verdict because notice of appellee’s acceptance of the guaranty was not necessary.

3. Appellant enumerates as error the trial court’s grant of appellee’s motion for directed verdict, urging that a jury issue remained as to whether she had signed solely in her corporate capacity as Alpha’s agent rather than in her individual capacity as a personal guarantor of Alpha’s indebtedness.

In this regard, appellant relies upon her own testimony that she had not signed the guaranty in her individual capacity so as to guarantee the corporate debt. “However, parol evidence is neither admissible nor probative if the agreement is otherwise clear and unambiguous.” Dennisson v. Lakeway Publishers, 196 Ga. App. 85, 86 (2) (395 SE2d 366) (1990). Although appellant also relies upon her placement of the abbreviation “Sec.” immediately after her signature, such an abbreviation is a mere word of description and the obligation incurred by appellant is personal. Morris v. Reed, 14 Ga. App. 729 (1) (82 SE 314) (1914). See also OCGA § 10-6-86. Moreover, if appellant’s signature were held to have been made in her corporate capacity, the language of guaranty would be rendered meaningless. See Board of Regents &c. of Ga. v. A. B. & E., Inc., 182 Ga. App. 671, 675 (357 SE2d 100) (1987).

“ ‘An agent may, by personal contract, guarantee performance by the principal.’ [Cit.]” Hagan v. Asa G. Candler, Inc., 59 Ga. App. 587, 589 (1) (1 SE2d 693) (1939), aff’d 189 Ga. 250 (5 SE2d 739) (1939). “ ‘[E]ven though [one is] acting in the capacity of agent and for the sole benefit of his principal, he may nevertheless by express undertaking bind himself personally. [Cits.]’ [Cit.]” Davis v. Menefee, 34 Ga. App. 813, 814 (1) (131 SE 527) (1926). “The language employed in the credit application [showed] a written promise by the individual defendant to be responsible for credit extended by plaintiff to the corporate defendant. [Cits.]” Seay’s Home Furnishings v. Dozier Home Bldrs., 176 Ga. App. 660, 661 (337 SE2d 440) (1985). “On the face of the document, appellant unambiguously signed in her individual capacity and not in her representative capacity. . . . Accordingly, appellant is personally liable as the guarantor of [Alpha’s] indebtedness to appellee. That [Alpha] was itself not a signatory to this particular document does not compel a different conclusion. [Cit.]” Dennisson v. Lakeway Publishers, supra at 86 (2).

4. Appellant enumerates as error the trial court’s direction of the verdicts as to attorney’s fees, urging that appellee did not prove that it had given her the statutory notice mandated by OCGA § 13-1-11 (a) (3).

The complaint and the attachments thereto gave sufficient notice to appellant of appellee’s intent to collect attorney’s fees. “[W]here a pleading, setting up a claim on a note or other evidence of indebtedness which authorizes recovery of attorney[’s] fees, alleges . . . that notice is thereby given, and the [attached] notice otherwise conforms to the requirements of [OCGA § 13-1-11 (a) (3)], such notice is sufficient to authorize an award of attorney[’s] fees.” New House Prods., Inc. v. Commercial Plastics &c. Corp., 141 Ga. App. 199, 200-201 (3) (233 SE2d 45) (1977). “[A] literal compliance with the language of the statute is not required!;] only a substantial compliance is demanded. [Cit.]” Carlos v. Murphy Warehouse Co., 166 Ga. App. 406, 408 (2) (304 SE2d 439) (1983). See also General Elec. Credit Corp. v. Brooks, 242 Ga. 109, 118 (249 SE2d 596) (1978).

Decided October 17, 1990

Rehearing denied November 7, 1990

Mundy & Gammage, John M. Strain, for appellant.

Bryant, Davis & Cowden, James W. Hays, for appellee.

5. Contrary to appellant’s assertions on appeal, a verdict was not directed against her and in favor of appellee simply because a default judgment had been entered against Alpha. The instant case was tried on the merits (see Fred Chenoweth Equip. Co. v. Oculus Corp., 254 Ga. 321 (328 SE2d 539) (1985)) and the verdicts were directed because appellee met its burden of proof but appellant did not. “[A] guarantor is not conclusively bound by a judgment or amount admitted due by his principal. [Cit.] Such amount is only prima facie evidence of liability to the creditor. [Cit.] But, where such evidence has been introduced, as in the instant case, it does establish prima facie the liability of the guarantor and the burden shifts to the guarantor to rebut the correctness of the amount. [Cit.] [Appellant] did not attempt to meet [her] burden and no evidence was presented to support [her] contention. . . .” Peterson v. Midas Realty Corp., 160 Ga. App. 333, 334 (287 SE2d 61) (1981).

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    A90A1803.
    ROWE et al. v. BEN’S TRUCK STOP, INC.
    (398 SE2d 760)
   Deen, Presiding Judge.

On August 5, 1987, the appellants leased premises from the appellee, for a term beginning October 15, 1987, and ending October 15, 1989. The lease required the appellant tenants to maintain personal property insurance and liability insurance to cover the customers inside the leased premises. The lease also included an option to renew for 36 months, provided the appellant tenants complied with all the conditions of the lease. On July 19, 1989, the appellants notified the appellee of their exercise of the renewal option; the appellee, however, rejected that option, on the basis that the appellants had failed to maintain insurance as required under the lease.

Decided October 26, 1990

Rehearing denied November 7, 1990

James E. Sherrill, for appellants.

The appellants did obtain the requisite insurance after they attempted to exercise the option, with the effective date of coverage being August 15, 1989. The appellee found this late acquisition of insurance unacceptable, and commenced a dispossessory proceeding. This appeal follows from the trial court’s grant of summary judgment for the appellee. Held:

1. It was undisputed that maintenance of personal property and liability insurance by the appellants was a condition precedent to the renewal option, and that for most of the lease term the appellants had not obtained the requisite insurance. However, performance of a condition precedent can be waived. Heitmann v. Commercial Bank, 6 Ga. App. 584 (65 SE 590) (1909). Under OCGA § 13-4-4, “[wjhere parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given to the other of intention to rely on the exact terms of the agreement.” Ordinarily, whether the conduct of parties constitutes a mutual departure from and waiver of a contract provision is a question for the jury. Southwest Plaster &c. Co. v. R. S. Armstrong & Bros. Co., 166 Ga. App. 373 (304 SE2d 500) (1983).

In this case, there was conflicting evidence regarding the parties’ strict enforcement of the lease term requiring insurance. The appellee claimed that it had requested several times that the appellants obtain the necessary insurance, but that the appellants had indicated that the insurance was too expensive. The appellants claimed that the appellee knew about the lack of insurance during the lease period but never expressed any concern about it until the attempted exercise of the renewal option. Under these circumstances, a factual issue existed over whether the appellee waived the insurance term of the lease, and summary judgment for the appellee was inappropriate.

2. The appellee’s motion for frivolous appeal damages is necessarily denied.

Judgment reversed.

Pope and Beasley, JJ., concur.

Glover & Davis, R. Keith Prater, for appellee.


text:
    A90A2164.
    FREEMAN v. SENTRY ENGINEERING & CONSTRUCTION, INC. et al.
    (398 SE2d 753)
   Deen, Presiding Judge.

This appeal is from an order entered May 17, 1990, in the Superior Court of DeKalb County, reducing the amount of attorney fees previously awarded to appellant. Appellant had sought compensation for work performed and costs incurred in the process of withdrawing from representation of appellees. After a series of hearings held over a period of some four months, the court determined, after a hearing held May 7, 1990, that it had erred in considering extraneous evidence and must therefore set aside its order of April 23, 1990, which had modified an order of February 28, 1990, by increasing the amount of attorney fees originally awarded in the February 1990 order. It is from the order entered May 17, 1990, pursuant to the May 7 hearing, that Freeman has sought both discretionary and direct appeals. Deeming the discretionary appeal to have been correctly filed because of the amount of money involved, we granted this appeal. Freeman enumerates as error (1) the propriety of the trial court’s modifying the order of February 28 by order of May 17, and (2) the trial court’s alleged failure to consider evidence regarding fees allegedly earned prior to withdrawal. Held:

1. Scrutiny of the record reveals that the order modified by the May 17 order which is the subject of this appeal was actually the order entered April 23, 1990, rather than that of February 28. It is well settled that “the trial judge ha[s] the inherent power during the same term of court in which the judgment was rendered to revise, correct, revoke, modify or vacate such judgment ... for the purpose of promoting justice and in the exercise of a sound legal discretion.” Le-Craw v. Atlanta Arts Alliance, 126 Ga. App. 656, 663 (191 SE2d 572) (1972). It is equally well settled that this “inherent power” can be exercised only during the same term in which the challenged order or judgment is entered, except where, as here, the motion for modification (or other statutorily defined action) was filed during the term when the challenged order was entered, and is continued to the next term. American Mut. Liab. Ins. Co. v. Satterfield, 88 Ga. App. 395 (76 SE2d 730) (1953).

The record clearly indicates that appellees’ motion was filed May 3, and that the new term began four days later, on May 7, 1990, the date of the hearing to which the May 17 order relates. The order of February 28, having been modified by that of April 23, was necessarily incorporated in the order of May 17. We find the May 17 modification to be timely under standard procedures and, therefore, find no merit in the first enumeration.

Decided October 17, 1990

Rehearing denied November 7, 1990

Gary G. Agnew, for appellant.

Steven G. Early, for appellees.

2. There is ample indication in the record that at its May 7 hearing, the trial court properly determined what evidence was actually relevant to the issues before it and therefore properly excluded evidence as to the billings for matters unrelated to the withdrawal. If there is any evidence to support the trial court’s ruling, it will be affirmed. Archer Mtr. Co. v. Intl. Business Investments, 193 Ga. App. 86 (386 SE2d 918) (1989).

The trial court’s decision that the April 23, 1990 order must be vacated and set aside, and that the attorney fees awarded therein must be reduced in keeping with the amounts authorized by the evidence, was proper. We find no error here.

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: McMurray, Presiding Judge. Sognier, Judge,

text:
    A90A1255, A90A1402.
    DICKENS et al. v. CALHOUN FIRST NATIONAL BANK; and vice versa.
    (398 SE2d 814)
   McMurray, Presiding Judge.

A previous lawsuit between these parties was considered by this court in Dickens v. Calhoun First Nat. Bank, 189 Ga. App. 798 (377 SE2d 715). Although that lawsuit and this action arose from the same set of facts, the issues are different.

On June 24, 1985, Robert Lee Dickens and Rebecca T. Dickens executed a 90-day note and deed to secure debt in favor of The Calhoun First National Bank. The note had a face amount of $206,755.77. It was secured by approximately 65 acres of land. On September 22, 1985, the note was extended for an additional 90 days. On November 11, 1985, Robert Lee Dickens transferred his interest in the property to Rebecca H. Trotter Dickens by warranty deed. The deed was recorded on November 13, 1985. Subsequently, on December 22, 1985, the Dickenses defaulted.

On April 2, 1986, the bank sent notice of the default and of the bank’s intention to seek attorney fees if the indebtedness was not paid in ten days. The letter giving the notice was sent by certified mail to Robert Lee Dickens and accepted by an agent for the Dickenses’ business. In pertinent part, the notice reads: “You are hereby notified that your loan with The Calhoun First National Bank is in default. The note contains a provision for the payment of reasonable attorney’s fees, and pursuant to Section 13-1-11 of the Code of Georgia, you are hereby notified that the provision relative to the payment of attorney’s fees as set out in the note in addition to the principal and interest shall be enforced, and that you have ten (10) days from the receipt of this notice to pay the entire principal balance without having to pay the attorney’s fees (15 percent), except fees and expenses incurred as of this date by reason of default.”

On the first Tuesday in May 1986, the Dickenses’ property was sold at public sale and purchased by the bank for $254,000. That amount consisted of the outstanding indebtedness, plus 15 percent attorney fees ($32,590.06) as provided in the note.

On October 14, 1988, the Dickenses brought this lawsuit seeking the difference between the foreclosure sale price and the principal and interest indebtedness. They alleged that the bank failed to account for the surplus funds, retained the funds in violation of OCGA § 16-8-4, and refused to pay the surplus to subordinate creditors as required by OCGA § 44-14-190. They sought an accounting and judgment in the amount of the surplus plus interest, attorney fees and costs.

Answering the complaint, the bank denied that it owed the Dickenses any of the foreclosure funds or that they were due an accounting. Via a request for admissions the bank sought and obtained admissions that six outstanding subordinate liens on the property, totalling some $120,000, had not been paid.

The bank moved for summary judgment. In response, the Dickenses argued that language in the note agreeing “to pay the costs you incur to collect this Note in the event of any default, including your attorney’s fees of 15% of principal and interest” should be construed as an agreement by the Dickenses to be liable only for the expenses actually incurred upon the foreclosure sale. They also argued that the notice letter sent pursuant to OCGA § 13-1-11 was defective in that it was addressed to Robert Lee Dickens and not to the property’s owner, Rebecca T. Dickens.

Subsequently, on June 14, 1989, after the time for responding to the motion for summary judgment had expired, the Dickenses amended their complaint to assert that Rebecca T. Dickens was the sole owner of the foreclosed property and that, since she had received no notice of the sale under OCGA §§ 44-14-162 and 44-14-162.2, the foreclosure sale was void. Thereafter, on June 29, 1989, the Dickenses filed a cross-motion for partial summary judgment, alleging wrongful foreclosure. Responding to the cross-motion, the bank denied that OCGA § 44-14-162.2 was controlling, arguing that that Code section was inapplicable since the Dickenses submitted no proof that their property was used for residential purposes.

After considering the parties’ respective summary judgment motions, the trial court awarded Rebecca Dickens $16,295.03, or one-half of the attorney fees paid to the bank, finding that the bank did not give her notice of its intent to collect attorney fees as required by OCGA § 13-1-11. With regard to the notification requirement of OCGA § 44-14-162.2, the court ruled in favor of the bank because there was no evidence showing that the secured property was used as the Dickenses’ dwelling place. The court further found that because the note specified that the Dickenses were liable for attorney fees equal to 15 percent of the principal and interest, the bank was entitled to that amount, even though the actual cost of the legal services which the bank incurred might have been less. Accordingly, the trial court granted the bank’s motion for summary judgment, except for the award of $16,295.03 attorney fees (which was Vz of the total attorney fees), plus interest, to Rebecca Dickens out of the surplus funds since she was not given notice under OCGA § 13-1-11, and the court denied the Dickenses’ cross-motion for summary judgment. Held:

1. In the main appeal, the Dickenses contend that summary judgment in the bank’s favor and the denial of their cross-motion for summary judgment on the issue of the bank’s liability for wrongful foreclosure was in error because the bank sold her home without giving Rebecca Dickens the notice required by OCGA §§ 44-14-162 and 44-14-162.1 through 44-14-162.4.

Those Code sections require that no sale of real estate on foreclosure shall be valid unless notice of the sale has been given the debtor; “debtor” is defined as “the grantor of the mortgage, security deed, or other lien contract. In the event the property encumbered by the mortgage, security deed, or lien contract has been transferred or conveyed by the original debtor, the term ‘debtor’ shall mean the current owner of the property encumbered by the debt, if the identity of such owner has been made known to and acknowledged by the secured creditor prior to the time the secured creditor is required to give notice pursuant to Code Section 44-14-162.2.” OCGA § 44-14-162.1. This notice requirement, however, applies “only to the exercise of a power of sale of property all or part of which is to be used as a dwelling place by the debtor at the time the mortgage, security deed, or lien contract is entered into.” OCGA § 44-14-162.3.

While there have been allegations and denials by the parties, we have found no competent evidence of record to show whether either Robert Lee Dickens or Rebecca T. Dickens resided on the mortgaged property at the pertinent time, so as to require compliance with the notice provisions of OCGA § 44-14-162 et seq. to effectuate a valid foreclosure and sale under the deed. (In the prior appeal, this court stated only that the Dickenses operated an auction barn and owned some rental houses on the land, and that “[t]he bank sent a foreclosure notice letter in April 1986, and foreclosed and bought the property at public sale in May.” Dickens v. Calhoun First Nat. Bank, supra at 799.) Since this presents a genuine issue of material fact for resolution, the trial court incorrectly ruled in favor of the bank on its motion for summary judgment that OCGA § 44-14-162.2 was inapplicable.

2. The Dickenses’ contentions in, regard to conversion of the funds and fraud on the part of the bank are not supported by any evidence of such misconduct.

3. The bank contends in the cross-appeal that it is entitled to the total amount of attorney fees contracted for in the note since Robert Lee Dickens did receive the proper statutory notice.

The transferral of Robert Lee Dickens’ interest in the property to Rebecca H. Trotter Dickens did not relieve him of his joint and several obligations to the bank under the note and security deed, nor was the amount of attorney fees agreed upon unreasonable. Contractual obligations for the payment of attorney fees representing 15 percent of the indebtedness owed are valid and enforceable under OCGA § 13-1-11 where, as here, the contract contains such a provision, the debt has matured, notice was given the debtor that he has ten days to pay the debt, the 20-day period has expired, and the debt is collected by or through an attorney. Dedousis v. First Nat. Bank of Cobb County, 181 Ga. App. 425, 427 (6) (352 SE2d 577); Specialty Investment Corp. v. Village Apt. Assoc., 9 B.R. 211, 215 (N. D. Ga. 1981). The provision making Robert Lee Dickens and Rebecca T. Dickens jointly and severally liable for payment of costs incurred in collecting on the note, including attorney fees of 15 percent of principal and interest, was in the note when Robert Lee Dickens executed it; the obligation and right to enforce it were secured by the security deed. See Woods v. State of Ga., 109 Ga. App. 225, 227 (136 SE2d 18). Thus, as an original borrower, Robert Lee Dickens was “a party sought to be held” as contemplated by OCGA § 13-1-11 on “the underlying indebtedness evidenced by the note, including attorney’s fees which would be collectible from the property as a result of a sale thereof pursuant to the power of sale contained in the security deed. [Cit.]” Pendergrast v. Ewing, 158 Ga. App. 5, 6 (1), 7 (279 SE2d 233). See also Tomkus v. Parker, 236 Ga. 478 (224 SE2d 353).

Since we have held that there are unresolved questions of fact in regard to the validity of notice of the foreclosure, the bank’s motion for summary judgment for attorney fees under the note was improperly granted. If, however, it was not incumbent upon the bank to give notice of foreclosure under the facts of this case, then, in that event, the bank would be entitled to the total amount of attorney fees evidenced by the note.

Decided November 7, 1990.

Lamb & Associates, T. Gordon Lamb, S. Robert Hahn, Jr., for appellants.

Kinney, Kemp, Pickell, Sponcler & Joiner, Henry C. Tharpe, Jr., Waycaster, Corn, Murray & Morris, Cynthia N. Johnson, for appellee.

Judgment affirmed in part and reversed in part.

Birdsong, J., concurs. Sognier, J., concurs specially. Carley, C. J., disqualified.

Sognier, Judge,

concurring specially.

I concur specially with regard to Division 1 because, although I agree that there is a fact question regarding whether the property in question was used as a residence at the time the deed to secure debt was executed, resolution of that question may not necessarily be dis-positive of this case. The record reflects that J. C. Maddox, the bank’s attorney and a director of the bank, handled the November 11, 1985 transfer of the property from Robert Maddox to his wife, and consequently the identity of the current owner was known to and acknowledged by the bank within the meaning of OCGA § 44-14-162.1. Of course, if it is determined that the property was not residential, then the bank’s knowledge is immaterial, the trial court’s ruling that the provisions of OCGA § 44-14-162.1 et seq. are inapplicable was correct, and the foreclosure was proper. However, since the record reflects that technically no notice of foreclosure was given to Rebecca Dickens, if the property is determined to have been residential, the question remains whether the notice requirements of OCGA § 44-14-162.1 et seq. were complied with and consequently whether the foreclosure was proper. Only then can the question of attorney fees be resolved.


author: Beasley, Judge.

text:
    A90A0277.
    BALES v. SHELTON.
    (399 SE2d 78)
   Beasley, Judge.

Following denial of his amended motion for new trial and alternative motion for new trial on the issue of damages only, plaintiff Bales appeals. The judgment had been entered on the jury’s $1,500 verdict in Bales’ favor in his personal injury action stemming from a motor vehicle collision with defendant Shelton. The court ordered that Shelton was entitled to an agreed-upon credit against the $1,500 for the payment of no-fault benefits which exceeded the amount of the judgment, so judgment was deemed satisfied except for court costs.

1. Bales contends the trial court erred in not granting a new trial on the general grounds at least as to damages, because the award was clearly so inadequate and so small as to justify the inference of gross mistake or undue bias on the part of the jury. He points to evidence of neck, shoulder, and back injuries allegedly sustained as a result of the rear-end collision, three hospitalizations and $13,588.60 in medical expenses, ten percent permanent functional impairment of his whole body as a result of his back injuries, and severe pain and suffering. Bales also cites what he characterizes as admissions in judicio made by defendant’s counsel in closing argument to the effect that Bales had a herniated disc and that a fair figure for the verdict would be $20,000.

“The question of damages is ordinarily one for the jury; and the court should not interfere with the jury’s verdict unless the damages awarded by the jury are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case.” OCGA § 51-12-12. “The general rule on appeal of an award of damages is that a jury’s award cannot be successfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake on the part of the jurors. [Cits.] Even though the evidence is such as to authorize a greater or lesser award than that actually made, the appellate court will not disturb it unless it is so flagrant as to ‘shock the conscience.’ [Cits.] . . . Moreover, the trial court’s approval of the verdict creates a presumption of correctness that will not be disturbed absent compelling evidence. [Cits.]” Cullen v. Timm, 184 Ga. App. 80, 82 (2)-83 (360 SE2d 745) (1987).

The record discloses evidence before the jury that would have allowed it to mitigate the special damages claimed by the plaintiff. First, there was evidence minimizing the magnitude of Bales’ injuries. Bales’ girl friend’s brother, a passenger in the car Bales was driving, testified that the only damage to their car was a little dent in the rear bumper and that he and his sister, also a passenger, were not injured. There was evidence that at the scene Bales was not bleeding, did not appear bruised, and was able to walk around. Bales’ girl friend testified in deposition that from two months after the accident until she moved away, Bales did not appear to be physically impaired in any way, that his complaints did not seem to affect his daily activities, and that she saw him more than once play football. There was further evidence that following the mishap, Bales engaged in many sports activities.

Second, there was evidence that at least a portion of Bales’ physical complaints was unrelated to the collision. Bales had congenital back problems and some of the medical expenses predated the collision. The jury itself pointed out that some medical bills were generated earlier.

“Damages are compensation for the injury sustained, and the burden of showing them is on the complainant; where it is duplicative, ambiguous and confusing, mere skimpiness unattended by facts realistically demanding a higher figure will not cause reversal. [Cits.]” Brooks v. Williams, 127 Ga. App. 311, 313 (2) (193 SE2d 231) (1972).

The assertion that counsel made admissions in judicio of $20,000 in damages does not change the result. Defendant’s counsel argued in closing that the jury should return a verdict in favor of the defendant but that if the jury awarded damages, it should be a fair figure, to compensate. Counsel then suggested $20,000. This was not an admission of fact in judicio but merely counsel’s opinion or conclusion in the nature of an assessment. See Aiken v. Dept. of Transp., 171 Ga. App. 154, 155 (2) (319 SE2d 58) (1984); Georgia Cas. &c. Co. v. Jernigan, 166 Ga. App. 872, 876 (4) (305 SE2d 611) (1983).

In light of the controverted evidence of damages, $1,500 is not so flagrantly inadequate as to shock the conscience and require another jury determination.

2. Bales contends that the trial court erred in refusing to allow cross-examination of defendant Shelton regarding his traffic charge and guilty plea to the offense of following too closely. The trial court ruled that the proper way to show defendant’s conviction was to introduce a certified copy of the guilty plea. Bales maintains that the testimony was admissible as an admission against interest and as an admission in judicio during the taking of defendant’s deposition. He cites no supporting authority and claims prejudice but does not elaborate on how he was harmed.

Plaintiff in cross-examination of defendant was not attempting to prove the existence of the plea itself but rather to elicit testimony from defendant about the traffic charge and its disposition to show by admission that the defendant was at fault. Thus plaintiff was not required to produce a certified copy of the plea. See Roper v. Scott, 77 Ga. App. 120, 122 (2)-125 (48 SE2d 118) (1948); see also Edwards v. Bullard, 131 Ga. App. 34, 36 (3)-38 (205 SE2d 115) (1974). Prohibiting the cross-examination was error, but Bales has neither alleged nor shown harm. A guilty plea admitted by defendant would have evidenced fault. Since the jury determined defendant was negligent, the error was harmless. Without harm there is no reversible error. Atlanta Americana &c. Corp. v. Sika Chem. Corp., 117 Ga. App. 707, 710 (4)-712 (161 SE2d 342) (1968).

3. Bales contends that the trial court erred in overruling his motion in limine, allowing videotaped deposition testimony of his treating physician regarding Bales’ absence of a seat belt and shoulder harness and the consequences from use or nonuse, and instructing the jury about nonuse. He maintains that the doctor’s testimony was irrelevant and improper in that no evidentiary foundation had been laid and the doctor was not competent to testify since he had not been qualified as an expert with respect to consequences from the use or nonuse of a seat belt shoulder harness.

a) When the case was tried, evidence of plaintiff’s failure to use an available seat belt could be considered by the jury on the question of damages subject to a showing that the injuries could have been reduced by use of a seat belt. See Sapp v. Johnson, 184 Ga. App. 603, 606 (3) (362 SE2d 82) (1987); F. A. F. Motor Cars v. Childers, 181 Ga. App. 821, 822 (3) (a) (354 SE2d 6) (1987); see also, although not controlling, Cannon v. Lardner, 185 Ga. App. 194, 195 (1) (363 SE2d 574) (1987); Wendlandt v. Shepherd Constr. Co., 178 Ga. App. 153, 154 (1) (342 SE2d 352) (1986). Therefore, the trial court did not err in denying Bales’ motion in limine insofar as it sought suppression of any reference or evidence pertaining to Bales’ use or nonuse of a seat belt. In fact, Bales testified that at the time of the collision he was not wearing the seat belt and shoulder harness and that upon impact, his whole body was thrust forward into the steering wheel.

b) In deposition, the physician testified that he was licensed to practice medicine in Georgia with a specialty in orthopedic surgery. He further testified that the specialty involved the investigation, preservation, restoration, and development of the form and function of the spine, extremities, and related structures by medical, physical, and surgical methods. He said Bales had told him that the impact had knocked him forward and Bales hit his head on the steering wheel and broke it; he further stated that Bales’ injuries seemed causally related.

The doctor was asked if he was familiar with the use of seat belts and shoulder harness restraints. Plaintiff’s counsel objected without stating a basis. The doctor replied that he knew what seat belts were and what they were used for. The doctor was asked if he would agree that one use was to prevent someone from being thrown forward or around or coming in contact with inside parts of an automobile if involved in an accident. He responded “yes” and plaintiff’s counsel again objected without stating a basis.

On the assumption that Bales was thrown forward inside the automobile and struck the steering wheel, defendant’s counsel asked the doctor for his opinion as to whether the use of a seat belt or shoulder harness would have prevented Bales from being thrown forward into or making contact with the steering wheel. Plaintiff’s counsel again objected without explanation. The doctor replied that if the seat belt or shoulder harness worked properly, he thought it would probably have kept Bales from hitting the steering wheel.

Plaintiff’s counsel objected to the injection of the issue of seat belts as irrelevant and further on the ground that the doctor had not been qualified as an expert in accident reconstruction or the use of seat belts. The doctor was asked to make the same assumption that Bales was thrown forward and hit the steering wheel and to give his opinion as to whether or not the type of blow sustained by Bales could have been lessened or prevented by the use of a shoulder harness or seat belt. The doctor’s opinion was that the seat belt or regular lap belt by itself probably would have made no difference but that the shoulder harness would have lessened the impact some.

“The question of whether a witness is qualified to give his opinion as an expert is one for the court. [Cit.] [Its] determination will not be disturbed except that it be manifestly abused.” Department of Transp. v. Great Southern Enterprises, 137 Ga. App. 710, 712 (1) (225 SE2d 80) (1976). To qualify as an expert, “ ‘special knowledge may be derived from experience as well as study. (Cits.) Formal education in the subject at hand is not a prerequisite for expert status.’ [Cits.]” Brown v. State, 245 Ga. 588, 590 (1) (266 SE2d 198) (1980).

Defendant adduced the doctor’s familiarity with seat belts and shoulder harnesses and their usage. This in conjunction with his unquestioned orthopedic expertise and his thorough knowledge of Bales’ physical condition following the failure to use the harness amounted to special knowledge. Therefore, any failure or inability on defendant’s part to produce more formal credentials was not fatal to the doctor’s opinion in regard to the hypothetical. In City of Fairburn v. Cook, 188 Ga. App. 58 (372 SE2d 245) (1988) there was no indication that the deposed physician possessed any expertise whatsoever in the area of seat belt usage.

Decided October 24, 1990

Rehearing denied November 8, 1990.

Smolar, Pelletier, Roseman & Barnes, Anne E. Barnes, Thomas A. Rice, for appellant.

Blasingame, Burch, Garrard & Bryant, E. Davison Burch, Frederick A. Bading, Hudson & Montgomery, David R. Montgomery, Ca rey & Walker, Jack M. Carey, for appellee.

We find no manifest abuse of the trial court’s discretion in permitting the objected-to testimony.

c) Bales claims that the court erred in instructing the jury about reducing damages because of his nonuse of the seat belt shoulder harness since there was no competent evidence to justify such instruction.

Contrary to Bales’ contention, the doctor’s testimony in conjunction with his own was sufficient to support the given charge. Compare F. A. F. Motor Cars v. Childers, supra at 822 (3) (a). No harm can be shown in the giving of the charge anyway because, based on other evidence, the jury was also instructed on proximate cause and the plaintiff’s duty to exercise ordinary care and to mitigate his damages, as additional bases for reducing any award. See Jones, supra at 469 (1) (b).

4. Bales contends that the evidence did not support a jury instruction on sudden emergency.

The court charged that “one who is confronted with a sudden emergency which was not created by his own fault and is without sufficient time to determine accurately and with certainty the best thing to be done, is not held to the same accuracy of judgment as would be required of him if he had more time for deliberation. The requirement of such a person is that he act with ordinary diligence under all the particular facts and circumstances surrounding the situation.”

This addressed the pivotal issue of defendant’s exercise of ordinary care or lack thereof, and since defendant was found negligent Bales can show no harm from the charge.

In any event, “an instruction [on sudden emergency] is authorized where there is evidence [,as here,] that a party ‘was required to make quick judgments on the immediate action to be taken without having time for mature reflection.’ [Cit.]” Martini v. Nixon, 186 Ga. App. 328, 329 (3) (364 SE2d 49) (1987).

Judgment affirmed.

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

       The original direct appeal from the $1,500 judgment was dismissed, on a ruling that an application to appeal was required under OCGA § 5-6-35 (a) (3). The Supreme Court granted certiorari and held that although application for appeal was required, the ruling was to apply prospectively and Bales was entitled to proceed in a direct appeal.

       OCGA § 40-8-76.1 (d), effective September 1, 1988 is not applicable to this case. See Jones v. Scarborough, 194 Ga. App. 468 (1) (a) (390 SE2d 674) (1990).


text:
    A90A0726.
    PAYNE v. JOYNER et al.
    (399 SE2d 83)
   Beasley, Judge.

Payne, who was not wearing a seat belt and was injured upon falling from an open jeep when Joyner swerved to avoid another vehicle at an intersection, appeals the denial of her motion for new trial.

Viewed in favor of the verdict, the evidence showed the following. The accident occurred on May 26, 1985 near midnight. Payne consumed four beers between 9:30 and 10:30 p.m. while at a local restaurant with four friends. She then drove her friend’s car to another restaurant because she believed the friend too inebriated to safely drive. Payne wore her seat belt. Payne called Joyner, with whom she had a date that evening. Joyner came to pick her up in his jeep, in which she had ridden before and used the seat belts. The jeep had the roof and doors off and Joyner was wearing his seat belt. He did not mention to Payne that she should engage hers.

As they approached the intersection, the traffic light turned yellow. Believing he could not safely stop, Joyner went through the intersection and swerved to miss a vehicle approaching from the passenger side. Payne fell out of the vehicle and was injured when she hit the pavement. No contact was made between the vehicles. When Joyner was asked to get Payne’s identification, he discovered in her purse a pint of Seagrams, which he threw into a ditch. When the paramedics arrived, she told them “I don’t need help, get me some Seagrams.” Her blood alcohol level measured .10 approximately 45 minutes later.

1. Prior to trial, Payne filed a motion in limine to prohibit testimony or evidence regarding the fact that she was not wearing a seat belt. The second enumeration assigns error in its denial and subsequent denial óf a new trial on this ground. The motion was premised solely on the theory that OCGA § 40-8-76.1 (d) is to be given retroactive effect to the 1985 incident. The effective date of the statute was September 1, 1988.

OCGA § 40-8-76.1 (b) mandates that each occupant of the front seat of a vehicle “shall ... be restrained by a seat safety belt . . .” while the vehicle is moving on a public street. Subsection (d) states that “[f]ailure to wear a seat safety belt in violation of this Code section shall not be considered evidence of negligence, shall not be considered by the court on any question of liability of any person, . . . and shall not diminish any recovery for damages arising out of the . . . occupancy, or operation of a passenger vehicle.”

Although the amended «motion for new trial contends that the motion in limine was erroneously amended because 1987 case law allowing seat belt evidence should be applied only prospectively and not in the 1985 calamity, there was no mention of that argument in the motion in limine or during trial and it could not be a basis for new trial. OCGA § 5-5-22; Boggs v. Griffeth Bros. Tire Co., 125 Ga. App. 304, 309 (7) (187 SE2d 915) (1972); Georgia Power Co. v. Hendricks, 97 Ga. App. 369, 370 (1) (103 SE2d 601) (1958).

As to the argument based on the statute, the seat belt law is a prospective statute only, applying to incidents on or after September 1, 1988. Bales v. Shelton, 197 Ga. App. 522, 524 (3) (a) (399 SE2d 78) (1990). See Jones v. Scarborough, 194 Ga. App. 468 (1) (a) (390 SE2d 674) (1990); Boatwright v. Czerepinski, 194 Ga. App. 697 (2) (391 SE2d 685) (1990) (accident 1987; trial December 1988).

At the time of trial in 1989, evidence of failure to use a seat belt was admissible on the question of damages if there was evidence that the injuries could have been reduced by use of a seat belt, which was shown here. Bales, supra; Boatwright, supra; Katz v. White, 190 Ga. App. 458 (379 SE2d 186) (1989); Sapp v. Johnson, 184 Ga. App. 603, 606 (3) (362 SE2d 82) (1987).

There was no error in the denial of the motion in limine.

2. Defendant also urges error in the trial court’s charge on contributory negligence. Osburn v. Pilgrim, 246 Ga. 688, 695 (273 SE2d 118) (1980). Objection was that the principle did not apply to the case.

The charge was from Vol. 1 Suggested Pattern Jury Instructions p. 291. It was followed by a charge on comparative negligence which Payne acknowledged was appropriate.

' The discussion of contributory negligence at trial and in the brief centers on the seat belt issue. The charge, however, contained no reference to seat belts but addressed the concept generally. Evidence unrelated to the seat belt issue justified the charge. Payne’s consumption of alcohol, resulting in a blood alcohol level of .10 forty-five minutes after the fall, could have affected her equilibrium enough to have caused her fall and merited the instruction. Vogt v. Rice, 114 Ga. App. 251 (1) (150 SE2d 691) (1966); see Lawrence v. Edwards, 128 Ga. App. 1, 2 (3) (195 SE2d 244) (1973). We need not address whether, absent this evidence, the charge was appropriate solely on the seat belt evidence as the charge related to liability instead of damages. Reese v. Lyons, 193 Ga. App. 548 (4) (388 SE2d 369) (1989); Cannon v. Lardner, 185 Ga. App. 194, 195 (363 SE2d 574) (1987); Wendlandt v. Shepherd Constr. Co., 178 Ga. App. 153, 155 (1) (342 SE2d 352) (1986) (physical precedent).

Decided October 26, 1990.

Lokey & Bowden, Peter K. Kintz, K. Scott Graham, for appellant.

Drew, Eckl & Farnham, G. Randall Moody, for appellees.

Denial of the motion for new trial was not error.

Judgment affirmed.

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

        Cullen v. Timm, 184 Ga. App. 80 (360 SE2d 745) (1987).