text:
    74637.
    MCC POWERS v. FORD MOTOR COMPANY.
    (361 SE2d 716)
   Benham, Judge.

Appellee Ford Motor Company (“Ford”) entered into a contract with Barge/Arconics (“Barge”), with the latter agreeing to complete the painting building addition of Ford’s Atlanta assembly plant. Barge contracted with Huffman-Wolfe Company (“Huffman”) to perform all plumbing and HVAC work at the Ford painting facility. Huffman then entered into a contract with appellant MCC Powers for the temperature control work at the Ford painting addition. When MCC Powers did not receive payment for its work from Huffman, MCC Powers filed a claim of lien in the amount of $18,700 against Ford’s property. See OCGA § 44-14-361 (a) (2). Appellant subsequently filed this suit, seeking to impress a special lien against Ford’s improved real property (Count 1) and to collect a money judgment for $18,700, the balance allegedly owing on MCC Powers’ contract (Count 2). Ford sought summary judgment as to the first count on the ground that the waiver of lien provision in its contract with Barge had been incorporated into the provisions of the subcontract between Barge and Huffman, and was subsequently incorporated into the sub-subcontract between Huffman and MCC Powers. Ford based its motion for summary judgment as to the second count on the ground that no contract existed between Ford and MCC Powers, and that MCC Powers was limited to the remedies provided by the lien statutes. The trial court granted Ford’s motions for summary judgment and denied that of MCC Powers. This appeal is from the judgment entered in favor of Ford.

1. MCC Powers was statutorily authorized to have a special lien on the real property for which it provided labor, services, and materials. See OCGA § 44-14-361 (a). However, the special lien “shall be dissolved” if it can be shown that “[t]he lien has been waived in writing by lien claimant . . .” OCGA § 44-14-361.2 (a) (1); AAA Plastering Co. v. TPM Constructors, 247 Ga. 601 (277 SE2d 910) (1981). The query before us is whether MCC Powers contractually waived its right to file a lien.

In its contract with Huffman, MCC Powers, as subcontractor, recognized and agreed that the Barge-Huffman contract, the Ford-Barge contract, and the general and specific conditions, plans, drawings, specifications and addenda prepared by the architect and/or engineer, and all other documents that formed a part of the Barge-Huffman contract were made a part of the Huffman-MCC Powers subcontract.

In essence, the trial court held that MCC Powers had executed a written waiver of its right to claim a lien by signing the Huffman-MCC Powers contract. The trial court did not err. The Huffman-MCC Powers contract made the Ford-Barge contract, which contained the lien waiver, a part of the Huffman-MCC Powers contract, and MCC Powers agreed to be bound by that document incorporated by reference. “Incorporation by reference in contract is generally effective to accomplish its intended purpose where the provisions to which reference is made have a reasonably clear and ascertainable meaning. Binswanger Glass Co. v. Beers Constr. Co., 141 Ga. App. 715, 717 (234 SE2d 363) [1977]. [Cits.]” ADC Constr. Co. v. McDaniel Grading Co., 177 Ga. App. 223 (2) (338 SE2d 733) (1985). The parties are in agreement that a lien waiver is contained in the Ford-Barge contract. Thus, it is clear that the referenced provision, the Ford-Barge contract, had a reasonably clear and ascertainable meaning. By incorporating by reference the terms of the Ford-Barge contract into the Huffman-MCC Powers contract, MCC Powers bound itself to waive its right to claim a lien. Id.; Binswanger Glass Co. v. Beers Constr. Co., supra. The trial court did not err in granting summary judgment to Ford on the first count of appellant’s complaint.

2. For the reasons stated in Division 1 of this opinion and for the additional reason that there was evidence that MCC Powers had not completed its work satisfactorily, it was not error to deny summary judgment to MCC Powers as to Count 1.

3. Appellant described its second count as one seeking compensation for Ford’s “unjust enrichment.” “Under Georgia law, a material-man or subcontractor may not recover against an owner or general contractor with whom it has no contractual relationship, based on the theory of unjust enrichment or implied contract; rather, it is limited to the statutory remedies provided by Georgia’s lien statute [OCGA § 44-14-360 et seg.]. [Cits.]” PPG Indus. v. Hayes Constr. Co., 162 Ga. App. 151 (1) (290 SE2d 347) (1982). The trial court did not err in granting summary judgment to Ford and denying it to appellant on Count 2.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.

Decided October 9, 1987.

Robert A. Moss, for appellant.

S. Gregory Joy, Philip L. Fortune, for appellee.


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    74707.
    GENERAL HOSPITALS OF HUMANA, INC. v. BENTLEY et al.
    (361 SE2d 718)
   Sognier, Judge.

The executors of the Estate of Leland P. Fomby, Sr. instituted this medical malpractice action against General Hospitals of Humana, Inc. d/b/a Humana Hospital-Newnan for negligence and for the wrongful death of Fomby. It was alleged that Fomby committed suicide due to the pain he experienced as a result of complications from his fall in a bathtub while a patient at the hospital two years prior to his death. The trial court granted the hospital’s motion for summary judgment as to the wrongful death claim and as to the allegation of negligent failure to place non-slip adhesive patches in the bathtub. The trial court denied the hospital’s motion as to the remaining allegation of the complaint, that of negligently failing to supervise Fomby while he exited the bathtub. We granted the hospital’s application for interlocutory appeal.

Appellees’ decedent, at the age of 72, underwent a hernia repair operation on December 15, 1983. The decedent’s doctor left instructions with appellant’s nursing staff on December 16 that the decedent was to be encouraged to walk on his own and that he was to take a “tub bath self.” The decedent was assisted by orderlies in both entering and exiting the bathtub during his first tub bath; however, on December 18, after having been assisted in entering the tub, the decedent slipped and fell during the process of exiting the tub without assistance. There was evidence that the decedent waited for the return of the orderly until his bathwater turned cold before attempting to exit the tub by himself.

In support of its motion for summary judgment, appellant submitted the affidavit of Sheila Everly, Associate Executive Director-Nursing and a licensed nurse, who averred that based on her “education, training and experience, I am familiar with the standard nursing care of patients practiced by hospital nursing staffs and nurses generally including that practiced in the Newnan, Georgia area. Further, I am familiar with the care of patients with conditions and circumstances similar to those of [appellees’ decedent]. In my opinion, the care and treatment of [appellees’ decedent] by the nursing staff at [appellant’s facility] at all times and in all respects was in keeping with good and accepted practices and met that reasonable degree of care and skill ordinarily exercised by nurses generally in like or similar circumstances.” Everly also stated that appellant’s staff properly executed the orders of the decedent’s physician and that “no act or omission on the part of [appellant] or its employees . . . caused or contributed in any way to any of the injury or damage allegedly sustained by [appellees’ decedent].”

Appellant contends the trial court erred by denying its motion for summary judgment on the negligent supervision allegation because appellee failed to produce expert testimony to rebut the affidavit by appellant’s expert asserting appellant did not deviate from the requisite standard of care in its treatment of a patient in appellees’ decedent’s circumstances and condition. We note that appellees do not assert that this is one of those cases where professional negligence is so apparent that expert testimony is unnecessary to establish a prima facie case of malpractice, as in the “pronounced results” cases such as Killingsworth v. Poon, 167 Ga. App. 653 (307 SE2d 123) (1983). Rather, appellees argue their action was not based upon professional malpractice but upon a simple negligence theory not requiring expert testimony in order for them to prevail at trial, and thus their failure to produce an expert’s rebuttal testimony did not entitle appellant to summary judgment. Self v. Executive Committee &c., 245 Ga. 548 (266 SE2d 168) (1980); Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107, 109-110 (2) (354 SE2d 872) (1987). On the basis of this assertion that their suit is not a medical malpractice action, appellees argue questions of fact exist regarding the interpretation to be given the order of the decedent’s physician (asserting that “tub bath self’ indicated Fomby could bathe himself but not necessarily enter and exit the tub by himself). We need not address this matter, however, since we do not agree with appellees that this suit sounds in simple negligence.

“A professional malpractice action is merely a professional negligence action and calls into question the conduct of a professional in his area of expertise. ‘In malpractice actions against professionals, it is essential to the plaintiff’s cause of action that competent evidence be presented as to the reasonableness and skill of the practitioner’s conduct. Except in clear and palpable cases, expert testimony is necessary to establish the parameters of acceptable professional conduct, a significant deviation from which would constitute malpractice. [Cits.]’ [Cit.]” Candler Gen. Hosp., supra at 110. “The requirement that expert testimony be adduced in a medical malpractice case is premised .upon the existence in such a case of ‘medical questions’ which control its resolution. [Cits.] ‘ “Medical questions’ ” may be defined as those ‘concerning highly specialized expert knowledge with respect to which a layman can have no knowledge at all, and the court and jury must be dependent on expert evidence.’ [Cit.]” Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200, 204 (345 SE2d 904) (1986).

The question here is whether appellant deviated from the applicable standard of care in its supervision of a patient in the condition and circumstances of appellees’ decedent. See generally Emory Univ. v. Shadburn, 47 Ga. App. 643 (1) (171 SE 192) (1933). The evidence here clearly indicates that the medical condition of the patient was the determinative factor as to the degree of supervision the patient was accorded by the hospital staff. Thus, the alleged negligent act required the exercise of expert medical judgment by appellant’s staff. Compare Candler Gen. Hosp., supra. We do not agree with appellees that evidence as to their decedent’s age and the recentness of the operation he underwent placed their case within the common knowledge of jurors. We will not place a duty on a hospital to supervise and assist each and every patient exiting a bathtub in its facility or even each and every 72-year-old male three days after hernia repair surgery. We reiterate that “ ‘[a] private hospital in which patients are placed for treatment by their physicians, and which undertakes to care for the patients and supervise and look after them, is under the duty to exercise such reasonable care in looking after and protecting a patient as the patient’s condition, which is known to the hospital through its agents and servants charged with the duty of looking after and supervising the patient, may require. . . .’” (Emphasis supplied.) Maddox v. Houston County Hosp. Auth., 158 Ga. App. 283, 284 (279 SE2d 732) (1981). We do not find the cases cited to us by appellees, such as Donson Nursing Facilities v. Dixon, 176 Ga. App. 700, 701 (1) (337 SE2d 351) (1985), require a different result since those cases are distinguishable on the basis that the severity of the medical condition of the patients had already been established by the evidence, as had the duty to supervise and the failure to so supervise.

Since appellees would be required to produce an expert’s opinion in order to prevail at trial, the production by appellant of an expert’s opinion in its favor on motion for summary judgment and the failure by appellees to produce a contrary expert opinion in opposition to that motion resulted in the absence of any genuine issue of material fact to be tried by the jury. Howard v. Walker, 242 Ga. 406, 408 (249 SE2d 45) (1978). Accordingly, the trial court erred by not granting summary judgment in favor of appellant.

Although appellees in their brief question the qualifications of appellant’s expert, appellees made no such objection before the trial court and thus we will not consider this issue raised for the first time on appeal. See Bell v. Sellers, 248 Ga. 424, 426 (1) (283 SE2d 877) (1981).

Judgment reversed.

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

Decided October 9, 1987.

David M. Brown, Elizabeth S. Haley, for appellant.

Tony H. Hight, for appellees.


author: Banke, Presiding Judge. Carley, Judge,

text:
    74577.
    PENNSYLVANIA MILLERS MUTUAL INSURANCE COMPANY v. CREWS et al.
    (361 SE2d 657)
   Banke, Presiding Judge.

Crews, Jr., was injured while being paddled for disciplinary reasons by his school principal, when he twisted to avoid a second “lick” of the paddle. Crews, Sr., filed suit on behalf of his minor son against the principal, the school district, and the Board of Education of Charlton County to recover for the alleged excessive administration of corporal punishment by the principal. Subsequently, the school board’s liability insurer, appellant Pennsylvania Millers Mutual Insurance Company, commenced this action to obtain a declaratory judgment to the effect that the damages sought to be recovered in the Crews’ suit were not covered by the policy. The insurer appeals a grant of summary judgment in favor of the appellees in the declaratory judgment action, contending that it is protected from liability by a policy exclusion applicable to bodily injury expected or intended by the insured. Held:

“The general rule which appears to have developed through judicial interpretation and application of exclusionary provisions such as the one in the instant case is that they are inapplicable if and only if the insured acts without the intent or expectation of causing any injury, however slight. Conversely, such an exclusion is applicable if the insured acts with the intent or expectation that bodily injury occur, even if the actual, resulting injury is different either in kind or magnitude from that intended or expected. See generally, Annot. 2, ALR3d 1238, 1243 § 4 (1965). Thus, there is a recognized distinction between intentional and unintentional results of intentional acts. ‘Intent’ is defined in Restatement, Torts 2d, § 8A (1965) ‘to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.’ ‘On the other hand, the mere knowledge and appreciation of a risk, short of a substantial certainty, is not the equivalent of intent.’ Prosser, The Law of Torts, p. 32 § 8 (4th ed. 1971).” Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 335 (291 SE2d 410) (1982).

Corporal punishment in Georgia schools is authorized by OCGA § 20-2-730 et seq., subject to certain specified limitations and procedures. The principal testified that while he had no intention of injuring Crews, he did administer the punishment to cause pain and discomfort. Indeed, as we have previously noted, “it is to be anticipated that corporal punishment will produce pain.” Maddox v. Boutwell, 176 Ga. App. 492, 493-494 (336 SE2d 599) (1985). However, the principal’s claim that he did not intend for the student to suffer the alleged physical injury would certainly warrant the conclusion that the injury was an unintended consequence of the spanking, thus rendering the policy exclusion inapplicable.

Contrary to the reasoning upon which the dissent is based, such a conclusion would not be foreclosed by the oft-quoted “rule of thumb” set forth in Great American Ins. Co. v. McKemie, 244 Ga. 84, 85-86 (259 SE2d 39) (1979), that “ ‘the allegations of the complaint are looked to to determine whether a liability covered by the policy is asserted.’ ” This language was quoted by the Great American court from Loftin v. U. S. Fire Ins. Co., 106 Ga. App. 287, 294 (127 SE2d 53) (1962), where it was specifically observed that this “rule” is confusing and has no application to a situation such as the one before us, where the actual facts bring the claim within the policy coverage, “but the [injured party’s] complaint against the insured falsely shows non-coverage.” Id. In such a situation, the Loftin court decreed that the insurer’s duty to defend was not discharged “merely by proving that the allegations of the complaint allege facts excluding the claim from the policy. [Cits.]” Id. It follows that the trial court did not err in granting summary judgment to the appellees in the present case.

Judgment affirmed.

Deen, P. J., Pope and Benham, JJ., concur. Beasley, J., concurs in judgment only. Birdsong, C. J., McMurray, P. J., Carley and Sognier, JJ., dissent.

Carley, Judge,

dissenting.

I must respectfully dissent to the majority’s conclusion that the provision of appellant’s policy excluding coverage for bodily injury expected or intended by the insured is not applicable to this case. The case cited and quoted at length by the majority, Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333 (291 SE2d 410) (1982), sets forth the established criteria for determining applicability vel non of such an exclusion. The majority attempts to bring the factual scenario in this case outside of the general rule by emphasizing that the “principal testified that while he had no intention of injuring Crews, he did administer the punishment to cause pain and discomfort.” (Emphasis supplied.) (Majority opinion, page 493.) As set forth in the portion of Colonial Penn Ins. Co. quoted by the majority “such an exclusion is applicable if the insured acts with the intent or expectation that bodily injury occur, even if the actual, resulting injury is different either in kind or magnitude from that intended or expected.” (Emphasis supplied.) Colonial Penn Ins. Co. v. Hart, supra, 335. The principal’s testimony reveals that he intended to cause “injury” within the meaning of the policy exclusion notwithstanding the fact that the result differed “in kind [and] magnitude from that intended or expected.”

Decided June 8, 1987

Rehearing denied October 13, 1987

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

B. Michael Magda, for appellees.

It must be remembered that this lawsuit seeks recovery for the intentional tort of assault and battery. Notwithstanding the defense of appellees that the results of the spanking were unintentional or their right to offer evidence in support of that defense at trial, “[t]he allegations of the complaint are looked to to determine whether a liability covered by the policy is asserted.” (Emphasis in original.) Great American Ins. Co. v. McKemie, 244 Ga. 84, 85-86 (259 SE2d 39) (1979). There is no evidence or contention that the allegations of the complaint falsely state the factual occurrence of the injury and that, contrary to those allegations, the injury was not the ultimate result of the intentional act of spanking. Compare Loftin v. U. S. Fire Ins. Co., 106 Ga. App. 287, 293-294 (127 SE2d 53) (1962). Since, as the majority itself notes, the spanking was intended to produce pain, the fact that it produced more pain than was intended does not bring the injury within the ambit of coverage. Based upon the allegations of the complaint, the liability asserted is within the exclusionary provision of the policy. Thus, the trial court erred in determining that this case is within the coverage of appellant’s policy. See also Stein v. Mass. Bay Ins. Co., 172 Ga. App. 811 (324 SE2d 510) (1984). Compare State Auto. Mut. Ins. Co. v. Thomson, 180 Ga. App. 90 (348 SE2d 507) (1986). I would reverse the judgment of the trial court and, therefore, I dissent.

I am authorized to state that Chief Judge Birdsong, Presiding Judge McMurray and Judge Sognier join in this dissent.


author: Birdsong, Chief Judge.

text:
    74884.
    74885.
    BOOTH v. THE STATE. BUCHANAN v. THE STATE.
    (361 SE2d 868)
   Birdsong, Chief Judge.

Raymond Booth and David Buchanan appeal their convictions for the offense of armed robbery. James Garrett, manager of the Majik Market on Fort Benning Road, Columbus, Georgia, testified he saw Booth and Buchanan come into the Majik Market about 10:30 a.m. and “they were wandering around so much” he could not help but notice them. One of them made a small purchase and they left. That afternoon, around 1:30 p.m., both defendants came back and “just kept walking around and walking around. ... I noticed them so much that I asked them if I could help them. . . . And they said no. . . . So when all my customers left, they came up to the counter” and Booth produced a small knife and pressed it to his side while Buchanan leaned against the front of the counter. Booth told him: “I want all your big bills,” and reached into the cash register and pulled out the paper bills. Three bills had been marked and their serial numbers recorded, and when they were pulled from the register they activated a camera which photographed part of the robbery scene. Buchanan can be seen leaning on the counter and alternately looking away from the robbery scene and then looking at the robbery scene a few feet away. After removing the paper bills, both defendants ran out the door.

Another witness saw both defendants running outside the store in the direction of the Cross Keys apartments. That witness had seen one of the defendants working on a car in the Sherwood apartments that morning and related that sighting to the police. The police went to the apartment of Elton Dumas and he gave them consent to search. The officers went into the bedroom and found both defendants, attempting to hide. Both men had been drinking and had the odor of alcohol about them. A search of Booth revealed the money taken from Majik Market, including the marked bills. Booth had a small knife and Buchanan had a box cutter knife. The detective who questioned both defendants said they smelled like alcohol, but were walking and talking “fine.” About four hours after their apprehension, both defendants appeared to be “drunk” and had to be awakened to be questioned.

Booth testified that he and Buchanan had been drinking all night and all morning. When he went to the Majik Market, he was not planning a robbery and said he did not know he was going to do it until he heard himself say: “Give me your money.” He said the robbery was his idea and Buchanan did not participate in it. Buchanan asked him: “Why did you do that,” and he said: “I can’t believe I done it, either.” Buchanan denied participating in the robbery and disclaimed knowledge of it even though he was a few feet away. He admitted running from the store “because I was scared . . . but not to be running because I was in on it. Because I didn’t know nothing about it.” Held:

Both defendants enumerate the general grounds as error. Booth relies upon a defense of intoxication and Buchanan upon a lack of participation. Voluntary intoxication is not an excuse for a criminal act in Georgia. OCGA § 16-3-4. As long as a criminal defendant can distinguish between right and wrong, can reason and act rationally when sober, and he voluntarily deprives himself of reason by intoxication and commits an offense while intoxicated, he is criminally responsible for his actions. Williams v. State, 237 Ga. 399, 400 (228 SE2d 806). Unless the defendant was so intoxicated as to be unable to know, understand and intend to do the act, it cannot be said that his act was not intentional. Transamerica Ins. Co. v. Thrift-Mart, 159 Ga. App. 874, 882 (285 SE2d 566).

Decided October 13, 1987.

H. Haywood Turner III, for appellants.

William J. Smith, District Attorney, J. Gray Conger, Assistant District Attorney, for appellee.

Buchanan denies participation; and mere presence at the scene, without any evidence to show further participation, is insufficient to authorize conviction (Muhammad v. State, 243 Ga. 404, 405 (254 SE2d 356)), but the pictures taken during the robbery show Buchanan within a few feet of the person being robbed and, at times, looking at the robbery during its occurrence, then running from the scene and attempting to hide during the police search of the apartment where Booth was hiding. “Flight,” or leaving the scene of a crime where innocence is claimed at trial, presents a jury question as to whether the defendant left for the stated reason or because of a “consciousness of guilt.” Wynn v. State, 152 Ga. App. 479, 481 (263 SE2d 258). Any conduct of a person indicating a consciousness of guilt, such as flight or concealment, is admissible evidence for whatever value the jury decides to give. Bridges v. State, 246 Ga. 323, 324 (271 SE2d 471).

When viewed in the light favorable to the verdict, as an appellate court is required to do, the evidence of record is sufficient to enable any rational trier of facts to find the existence of the offense charged against both defendants, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); see also O’Neal v. State, 239 Ga. 532 (1) (238 SE2d 73).

Judgments affirmed.

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


author: Banke, Presiding Judge.

text:
    75433.
    ERVIN et al. v. AUTOMOBILE CLUB INSURANCE COMPANY.
    (361 SE2d 870)
   Banke, Presiding Judge.

On November 29, 1982, the appellants, Mr. and Mrs. Ervin, met with an agent of the appellee insurance company to apply for a new policy of automobile insurance covering two automobiles owned by Mr. Ervin. It is undisputed that Mr. Ervin is illiterate and that the application was signed only by Mrs. Ervin. However, it is also undisputed that she signed in her husband’s presence, with the understanding that both she and her husband would be covered under the policy. Mr. Ervin similarly testified that it had been his understanding that Mrs. Ervin’s signature on the application would be effective to procure coverage for both of them, and he affirmatively stated that she had his authorization to sign on his behalf. The application reflects that $10,000 in personal injury protection (PIP) coverage was applied for.

On September 27, 1983, Mr. Ervin was injured in an accident involving one of the insured vehicles. As a result, he suffered medical expenses and lost wages in excess of $45,000. The appellee subsequently tendered $10,000 in PIP benefits to Mr. Ervin, which he declined to accept. In November of 1984, the appellants made a demand on the appellee for maximum PIP coverage in the amount of $50,000, tendering the additional premiums payable for such coverage. When the demand was rejected, the Ervins filed the present action, seeking to recover benefits based on such coverage, as well as a statutory penalty and attorney fees for nonpayment. See generally OCGA § 33-34-6. The trial court granted summary judgment to the appellee insurance company and denied a motion for summary judgment filed by the appellants. This appeal followed. Held,-.

1. Initially, we consider the appellants’ contention that the application form signed by Mrs. Ervin was violative of OCGA § 33-34-5 (b), with the result that no rejection of PIP coverage could have resulted from it. As the application was executed subsequent to November 1, 1982, it was governed by Ga. L. 1982, p. 1234, § 1, which amended OCGA § 33-34-5 (b) to provide that: “Each initial application for a new policy of motor vehicle liability insurance sold in this state after November 1, 1982, shall contain a statement in boldface type signed by the applicant indicating that the optional coverages listed in subsection (a) of this Code section have been explained to the applicant.”

The application form in question contained boldface type stating: “PERSONAL INJURY PROTECTION AND THE OPTIONAL NO-FAULT COVERAGES HAVE BEEN OFFERED AND EXPLAINED TO ME. I AUTHORIZE THAT MY POLICY BE ISSUED AS FOLLOWS:” Following that language was a series of boxes offering PIP coverage in the amounts of $5,000, $10,000, $25,000, and $50,000, respectively, along with language clearly indicating that one of these boxes “must be checked.” The Ervins’ application contained an “X” in the box marked “$10,000.” We hold that the application form was in full compliance with the statutory requirements of OCGA § 33-34-5 (b), as that Code section existed on the date the application form was executed, with the result that it constituted a valid rejection of PIP coverage in excess of $10,000. The appellants’ reliance on pre1982 cases is misplaced, as these cases dealt with an earlier version of the statute. See Hardy v. Nationwide Ins. Co., 182 Ga. App. 311 (356 SE2d 38) (1987).

Decided October 13, 1987.

Lester B. Johnson III, for appellants.

Paul W. Painter, Jr., Shari M. Sigman, for appellee.

2. The appellants further contend that the appellee must be deemed to have extended the maximum available PIP coverage to Mr. Ervin as a result of its failure to obtain his signature on the application form. In support of this argument, the appellants rely on the “equal dignities rule,” requiring that “[t]he act creating, [an] agency shall be executed with the same formality ... as the law prescribes for the execution of the act for which the agency shall be created.” OCGA § 10-6-2. In other words, Mr. Ervin contends that Mrs. Ervin’s signature could not bind him in the absence of a writing signed by him authorizing her to execute the application on his behalf. This contention is patently without merit. It has previously been held that where a wife admittedly signed an insurance application at the direction of her husband, “it would contravene any notion of justice to allow the appellant to disavow his admitted agency in an attempt to impose liability.” Miller v. State Farm &c. Ins. Co., 155 Ga. App. 487, 488 (271 SE2d 14) (1980). Similarly, Mr. Ervin will not be heard in the present case to argue simultaneously that his wife was authorized to sign the application form on his behalf but that she was not authorized to act on his behalf with respect to the election of optional PIP coverage. Compare Holt v. Intl. Indem. Co., 171 Ga. App. 817 (321 SE2d 374) (1984).

Judgment affirmed.

Carley and Benham, JJ., concur.


author: Benham, Judge.

text:
    74459.
    GIVENS v. THE STATE.
    (361 SE2d 830)
   Benham, Judge.

Appellant and his co-defendant were found guilty of robbery by force. OCGA § 16-8-40 (a) (1). Appellant now asserts as reversible error the trial court’s refusal to instruct the jury on the law of simple battery and the denial of his motion to sever his trial from that of his co-defendant.

1. Appellant’s pre-trial motion for severance was based upon the prejudice he allegedly would suffer from the admission of evidence of prior similar transactions committed by his co-defendant. The grant or denial of a motion for severance lies within the sound discretion of the trial court, and its ruling will not be reversed absent a clear abuse of such discretion. Stevens v. State, 165 Ga. App. 814 (3) (302 SE2d 724) (1983). Being tried with a co-defendant who has prior convictions that are made known to the jury does not result in prejudice requiring reversal. See Davis v. State, 129 Ga. App. 796 (2) (201 SE2d 345) (1973). Furthermore, the trial court assured appellant’s counsel that the jury would be given instructions limiting their consideration of the prior convictions to the co-defendant only. In the absence of a showing that appellant suffered such prejudice as to amount to a denial of due process, we decline to disturb the trial court’s denial of the motion to sever. Harper v. State, 166 Ga. App. 797 (1) (305 SE2d 488) (1983).

2. On appeal, appellant maintains that the behavior of his co-defendant, who was acting as co-counsel in his own defense, so antagonized the jury as to render impossible appellant’s ability to obtain a fair trial. While the transcript of the voir dire reflects that several potential jurors were excused due to their professed inability to be impartial to appellant’s co-defendant, none of the members of the jury voiced such feelings. “The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge’s discretion will not be interfered with. [Cits.]” Stanley v. State, 250 Ga. 3 (2) (295 SE2d 315) (1982). Inasmuch as there is no evidence that the members of the jury were unable to be impartial due to the conduct of appellant’s co-defendant, we cannot say that, as a matter of law, the trial court abused its discretion by denying appellant’s motion for mistrial.

3. Appellant enumerates as error the trial court’s refusal to give his requested charge on simple battery. Appellant maintains that simple battery is an offense included in robbery by force and that the requested charge should have been given because several eyewitnesses testified that, while they saw appellant beating the victim, they did not see him take anything from the victim.

“ ‘The State or the accused may, by written application to the trial judge at or before the close of the evidence, request [a] charge on lesser crimes that are included in those set forth in the indictment or accusation, and [the] failure to so charge as requested, if the evidence warrants such requested charge or charges, shall be error.’ [Cit.]” Bowers v. State, 177 Ga. App. 36 (1) (338 SE2d 457) (1985). The trial court’s refusal to give appellant’s requested charge is not reversible error unless simple battery is, as a matter of law, an offense included in robbery by force, the specific crime for which appellant was indicted. “If so, then and only then, the issue becomes whether the evidence in the instant case authorized a factual finding of [simple battery] and thus warranted a jury charge as to that crime. [Cits.]” Id.

A crime is included within another crime as a matter of law if “[i]t differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.” OCGA § 16-1-6 (2); State v. Estevez, 232 Ga. 316, 320 (206 SE2d 475) (1974). See also State v. Hightower, 252 Ga. 220, 222 (312 SE2d 610) (1984). Thus, as a matter of law, involuntary manslaughter is an offense included within murder (Spradlin v. State, 151 Ga. App. 909 (266 SE2d 310) (1979)); reckless conduct is included within aggravated assault with a deadly weapon (Bowers v. State, supra); and vehicular homicide in the second degree is included within vehicular homicide in the first degree (Hayles v. State, 180 Ga. App. 860 (3) (350 SE2d 793) (1986)). On the other hand, assault and battery are not included, as a matter of law, within the offense of armed robbery. State v. Hightower, supra.

The indictment accused appellant of committing robbery by force. “ ‘Force implies actual personal violence, a struggle and a personal outrage.’ ” Henderson v. State, 209 Ga. 72 (1) (70 SE2d 713) (1952). See also Rivers v. State, 46 Ga. App. 778, 781 (169 SE 260) (1933). Simple battery is committed when one “[i]ntentionally makes physical contact of an insulting or provoking nature with the person of another; or [i]ntentionally causes physical harm to another.” OCGA § 16-5-23 (a). While both crimes involve unwanted physical contact upon the person of the victim, simple battery does not differ from robbery by force “only in the respect that a less serious injury or risk of injury to the same person” is involved or that “a lesser kind of culpability suffices to establish its commission.” OCGA § 16-1-6 (2). Simple battery focuses on injury to the person while robbery by force involves the taking of property from the person of another by doing physical violence to the victim. “[W]here the defendant is charged by a narrowly drawn indictment with a specific crime it is not within the power of the judge or the jury to interpret the facts as presented at trial to support an alternative separate offense. Criminal indictments are not deemed amendable to conform to the evidence. [Cit.]” State v. Hightower, supra at 223. The State has the prerogative to indict and try a defendant for a particular crime and the defendant cannot usurp that prerogative by proposing a crime different from that charged and which is not an offense included in the offense charged. Id. at fn. 2. Since simple battery is not as a matter of law an offense included in robbery by force, the trial court did not err in refusing to give appellant’s requested charge.

Decided September 8, 1987

Rehearing denied October 14, 1987

L. James Weil, Jr., for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Paul L. Howard, Jr., Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


author: McMurray, Presiding Judge.

text:
    74713.
    VERHOEFF v. THE STATE.
    (362 SE2d 85)
   McMurray, Presiding Judge.

On May 8, 1986, defendant arrived at Hartsfield International Airport in Atlanta, Georgia, aboard a flight which originated in Miami, Florida. Defendant was on his way to Holly, Colorado and it was necessary for him to change planes in Atlanta. Because defendant’s flight originated in a known drug source city, deplaning passengers were monitored by agents of the Drug Enforcement Administration (“DEA”).

Defendant deplaned, carrying a small suitcase with a shoulder strap. He walked into the concourse, looking somewhat confused. An air line agent offered to help and defendant handed him his plane ticket. After examining the ticket, the air line agent directed defendant to another gate for his connecting flight. During this exchange, Special Agent Paul Markonni of the DEA spied defendant’s ticket. He was able to observe that it was a one-way cash ticket bearing the name “Bryan Clark.” He also was able to observe that no baggage claim stubs were attached to the ticket folder. Checking the reservation record, Markonni learned that defendant’s reservation was made about one hour before his flight was scheduled to depart and that a telephone contact number was not given. Armed with this information, Markonni decided to interview defendant.

Accompanied by DEA Agent Laderer, Markonni intercepted defendant and identified himself as a police officer. Markonni and Laderer were dressed in casual clothing; their weapons were not displayed. Markonni asked defendant if he could speak with him for a few minutes and defendant said that he could. Markonni then asked to see defendant’s plane ticket and defendant handed it to him. Holding the ticket, Markonni asked defendant his name. According to Markonni, defendant “appeared to hesitate and then actually looked over in the direction of the ticket, like he forgot what name was on it, and he said Clark. And, I said, what’s your first name, Mr. Clark, and he said Bryan.” At that point, Markonni gave the ticket back to defendant. Speaking in normal conversational tones, Markonni asked defendant if he had any identification. Defendant replied that he did not have any with him. Markonni inquired as to whether defendant had anything with his name on it — a credit card or a receipt of some kind. Defendant said he did not and he asked what was going on. Markonni informed defendant that he and Laderer were narcotics agents and that they were looking for drugs and narcotics coming through the airport. Markonni asked defendant again whether he had “anything at all” with his name on it. Defendant “kind of stuttered and then said, yes, and produced his wallet, and from his wallet he produced his Colorado driver’s license which had his true name on it.”

In the meantime, Markonni observed that defendant was extremely nervous during the interview. In Markonni’s words, defendant “fell apart when we started talking to him.” Defendant’s breathing quickened dramatically and his hands shook.

Markonni returned defendant’s driver’s license to him. He then asked defendant if he would give his consent to be searched. Defendant declined. Convinced that defendant was not truthful about his identity in order to mislead him, Markonni arrested defendant for giving a false name to a law enforcement officer. See OCGA § 16-10-25. Thereupon, Markonni conducted a search of defendant incident to the arrest. Cocaine was found in the suitcase which defendant was carrying.

Defendant was indicted for trafficking in cocaine and giving a false name to a law enforcement officer. He moved to suppress the evidence which was seized during the search. The motion was denied. Following a bench trial, defendant was convicted upon both counts of the indictment. On appeal, defendant enumerates error upon the denial of the motion to suppress evidence. Held:

1. When defendant gave Markonni his driver’s license with his name on it, Markonni had probable cause to believe that defendant had given Markonni (who is a Clayton County deputy sheriff in addition to being a DEA agent) a false name in order to mislead him. Thus, Markonni was entitled to arrest defendant and to conduct a search incident to the arrest. United States v. Ehlebracht, 693 F2d 333, 338 [2] (5th Cir. 1982). It follows that the drugs found pursuant to the search were admissible in evidence.

2. Defendant contends that he was seized by Markonni at the outset and that, therefore, the arrest (and incidental discovery of cocaine) was tainted by the seizure. In this regard, defendant argues that Markonni’s repeated requests for identification demonstrate that defendant was seized even before he produced his driver’s license.

“In determining whether a given contact between a police officer and a citizen violated a defendant’s Fourth Amendment rights, the court must first determine whether the encounter was a ‘seizure’ within the meaning of the Fourth Amendment. See United States v. Mendenhall, 446 U. S. 544, 553 (100 SC 1870, 1876, 64 LE2d 497) (1980) (Stewart, J.) (with Rehnquist, J., concurring). The Fourth Amendment’s proscription against unreasonable searches and seizures governs all seizures of the person, ‘including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U. S. 721 (89 SC 1394, 22 LE2d 676) (1969); Terry v. Ohio, 392 U. S. 1, 16-19 (88 SC 1868, 20 LE2d 889) (1968).’ United States v. Brignoni-Ponce, 422 U. S. 873, 878 (95 SC 2574, 45 LE2d 607). ‘The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but “to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” (Cit.)’ United States v. Mendenhall, supra at 553-554. In distinguishing between an intrusion amounting to a ‘seizure’ of the person and an encounter that intrudes upon no constitutionally protected interest, we adopt that standard proposed by Justice Stewart in United States v. Mendenhall, supra at 554: ‘(A) person has been “seized” within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” Moran v. State, 170 Ga. App. 837, 839 (1) (318 SE2d 716).

Theoretically, there are at least three kinds of police-citizen encounters: verbal encounters involving no coercion or detention; brief “stops” or “seizures” which must be accompanied by a reasonable suspicion; and “arrests” which must be supported by probable cause. McAdoo v. State, 164 Ga. App. 23, 26 (295 SE2d 114), citing United States v. Berry, 670 F2d 583, 591 (5th Cir. 1982). “Factors determinative of whether or not an intrusion or ‘seizure’ has occurred ‘include the lack of interference with the individual’s progress, ascertaining whether the individual is willing to cooperate with police before making further inquiries, no display of official authority beyond a statement that the person stopping the individual is a law enforcement officer, and conducting the encounter in an appropriately deferential manner to avoid causing the individual . . . anxiety and fear . . .’ McAdoo v. State, supra at 26, 27.” Allen v. State, 172 Ga. App. 663, 665 (324 SE2d 521).

We think the facts demonstrate that defendant was not seized until he was arrested formally. Markonni and Laderer were dressed casually and their weapons were not displayed. When defendant was approached, the agents were identified as law enforcement officers and defendant was asked if he would speak with the agents for a few minutes. Markonni asked to see defendant’s plane ticket. After examining the ticket Markonni gave it back to defendant. Then Markonni asked to see identification. When defendant said he did not have any with him, Markonni asked if he had anything with his name on it. Receiving a negative reply, Markonni asked again for identification and defendant produced it. Markonni did not demand to see identification; he simply repeated his requests for identification in a conversational tone of voice. Defendant responded to the requests by saying he did not have identification with him. At no time did defendant refuse to produce identification.

Decided September 30, 1987

Rehearing denied October 14, 1987

Bruce H. Morris, for appellant.

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

Given these facts, it appears that defendant had no objective reason to believe that he was not free to end the conversation with Markonni and proceed on his way. It follows that defendant was not seized during his conversation with Agent Markonni. Allen v. State, 172 Ga. App. 663, 664 (1), 665, supra.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    74902.
    BANKS v. THE STATE.
    (362 SE2d 227)
   McMurray, Presiding Judge.

Defendant was indicted for the offenses of murder and possession of a firearm by a convicted felon. Following a jury trial, defendant was convicted of voluntary manslaughter and possession of a firearm by a convicted felon. He appeals. Held:

1. In his first enumeration of error, defendant contends the trial court erred in charging the jury on voluntary manslaughter. We disagree. “ ‘On the trial of a murder case, if there be any evidence, however slight, as to whether the offense is murder or voluntary manslaughter, instruction as to the law of both offenses should be given the jury.’ Banks v. State, 227 Ga. 578, 580 (182 SE2d 106).” Henderson v. State, 234 Ga. 827, 832 (218 SE2d 612). In the case sub judice, evidence indicated that defendant shot the victim in the heat of passion when he learned that the victim was beating defendant’s daughter. In view of such evidence, it cannot be said it was error to instruct the jury on voluntary manslaughter. Tew v. State, 179 Ga. App. 369, 371 (1) (346 SE2d 833).

2. Defendant contends the trial court erred in refusing to instruct the jury concerning “misapprehension of fact.” See in this connection OCGA § 16-3-5. The alleged misapprehension pertained to whether the victim was brandishing a knife. Thus, the requested charge ultimately went to the issue of self-defense. In view of the trial court’s full charge on self-defense, including the principle that a person is justified in using force against another if he reasonably believes that such force is necessary to defend himself or a third person, it was not error to refuse to charge the jury concerning misapprehension of fact. Ellis v. State, 174 Ga. App. 535, 536 (2) (330 SE2d 764).

3. The trial court’s charge on self-defense was full, fair and complete. Accordingly, the trial court did not err in refusing to give defendant’s request to charge on this issue. Shirley v. State, 245 Ga. 616, 619 (266 SE2d 218); Walker v. State, 179 Ga. App. 782, 784 (4) (347 SE2d 711).

4. In his fourth enumeration of error, defendant contends the trial court erred in refusing to charge the jury that “proof of the violent and turbulent character of the deceased can be shown to explain that the accused was honestly seeking to defend himself.” This enumeration of error is without merit. The requested charge suggests that the mere character of the victim can support a claim of self-defense. This is not a full and accurate statement of the law. The rule is that the violent character of a victim is admissible in evidence when it is shown prima facie that the victim was the assailant, that the defendant was assailed, and that the defendant was honestly trying to defend himself. See Henderson v. State, 234 Ga. 827, 828, supra; Hanlon v. State, 162 Ga. App. 46, 48 (290 SE2d 285). Moreover, we think the trial court’s full charge on self-defense rendered the requested charge superfluous. See Division 2 hereinabove. See also Ellis v. State, 174 Ga. App. 535, 536 (2), supra.

5. Defendant asserts the trial court erred in refusing to sever the two counts of the indictment. This assertion is without merit in view of the trial court’s charge on felony murder and its careful, clear instruction that the prior voluntary manslaughter conviction may not be considered by the jury in determining defendant’s guilt “of any oifense.” As it is said: “[W]here, as here, the possession of a firearm charge may be the supporting felony in felony murder, it is proper to try the counts together as long as the jury is carefully charged that the prior felony conviction may not be considered by them in deciding the murder count. Here, the court’s instructions dealing with the previous conviction made this abundantly clear to the jury, and we therefore find no abuse of discretion in the refusal to sever the two counts.” Appling v. State, 256 Ga. 36, 37 (1) (343 SE2d 684).

6. Finally, defendant contends it was error for the trial court to allow into evidence defendant’s previous conviction for voluntary manslaughter which the State introduced to support the possession of a firearm charge. In this regard, defendant points out that the evidence was unnecessary and prejudicial in view of defendant’s willingness to stipulate that he was a convicted felon. This contention is not meritorious. “Relevant evidence cannot be kept from the jury by an admission of the fact or waiver of the requirement of proof. [Cit.]” Franklin v. State, 245 Ga. 141, 150 (263 SE2d 666).

Decided September 30, 1987

Rehearing denied October 14, 1987

William T. Hankins III, Carl Greenberg, for appellant.

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

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    74697.
    CANTRELL v. RED WING ROLLERWAY, INC.
    (361 SE2d 720)
   Birdsong, Chief Judge.

Appellant James Cantrell; plaintiff below, brings this appeal from a jury verdict for defendant, Red Wing Rollerway, Inc. Cantrell lives on land immediately to the rear of Red Wing’s skating rink in Augusta, Richmond County, Georgia. On March 6, 1985, Randy London, the manager of Red Wing, was cleaning up the rink, inside and outside. He was being assisted by an employee, Donnell Smith, and a friend of Smith’s named Chris. Smith was mowing the grass outside the building. Chris was painting stripes in the parking lot. London left to buy more paint and to have lunch. When he returned, a fire was in progress behind the skating rink.

Cantrell, who lives behind the rink, was alerted to the fire by his sister-in-law, and when he first saw the fire, it was about half-way between the rink and his property. Although the fire department responded promptly, it was unable to keep the fire from destroying an open storage shed behind Cantrell’s house and its contents. It was a dry and very windy day, and the strength of the wind spread the fire faster than the firemen could control it. An assistant fire chief, who was identified only as “Chief Newman,” arrived shortly after the second alarm was sounded. He took charge of the additional fire units and the department personnel and after the fire was extinguished, investigated the cause. His testimony is replete with hearsay (see Cawthon Motor Co. v. Scheufler, 153 Ga. App. 282, 285-286 (265 SE2d 96)), as he was permitted to state, without objection, what everyone told him they had seen prior to the discovery of the fire. (While we set forth herein hearsay utterances that were heard by and possibly considered by the jury in reaching its verdict, we have wholly disregarded all hearsay in reaching our decision.) The Chief talked to Cantrell who told him “he had been burning earlier but the fire [was] not going to come out of [his] pit and go [against] the direction of the wind.” The operators of “Savin-Haven,” a package shop, and Champion Oil “said . . . there was a clean-up crew outside cutting grass and cleaning up the premises at the skating rink. They saw the crew out there, but they did not see anyone start the fire.” The chief was permitted to testify that he spoke to “Mr. Sterns and his wife, who lived in this trailer that’s right behind the Savin-Haven” and “[t]hey told [him] they saw the clean-up crew out there. They also told me they saw several young kids back and forth from the skating rink over to the Savin-Haven and back. They did not see anyone start the fire.”

There was a path beside the skating rink and it was his opinion the fire “would have started over to your left of that path somewhere.” The Chief spoke to the skating rink’s clean-up crew and was told that they were cleaning up, cutting grass and sweeping up the parking lot, and they did not know how the fire started. Although the Chief made a thorough investigation of the case of the fire, he could not say what started the fire. In his opinion, it was “dry enough that somebody just casually throwing a match over into some of this grass or throwing a lighted cigarette over into that grass, could have possibly started a grass fire of this nature.” The manager of the skating rink denied that he had employed several young boys to come out there to cut the grass and help them out.

Cantrell filed this action for damages for the value of the materials stored in his shed. The jury found for the defendant, and appellant moved for a new trial. An amendment to the motion for new trial was filed in which it was alleged that newly discovered evidence had been found which would show that an eyewitness would testify that he saw “several boys operating a lawnmower and starting a fire in a large pile of grass” while he was walking on a path next to the skating rink and when he came out of the drug store thereafter he saw the smoke from the fire and heard the approach of the fire engine.

The trial court denied the motion for new trial, and appellant brings this appeal. Held:

1. Appellant contends the trial court erred in refusing his motion for new trial on the basis of newly discovered evidence. Grants of new trial on the ground of newly discovered evidence are not favored (Reed Oil Co. v. Harrison, 26 Ga. App. 37 (105 SE 496)) and are addressed to the sound discretion of the trial court. Matthews v. Grace, 199 Ga. 400, 405 (34 SE2d 454). The trial court’s decision will not be disturbed absent manifest abuse of discretion. Baumbach v. Dickens, 213 Ga. 745, 746 (101 SE2d 702). The six bases for the grant of a new trial on newly discovered evidence are well known: (1) that the evidence has come to the knowledge of the moving party since the trial, (2) that it was not owing to the want of due diligence that the moving party did not acquire such evidence sooner, (3) that the evidence is so material that it would probably produce a different verdict, (4) that it is not cumulative only, (5) that the affidavit of the witness himself should be produced or its absence accounted for, and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness. Hegedus v. Hegedus, 255 Ga. 44, 46 (335 SE2d 284).

In the instant action, a deposition was taken of appellant on February 21, 1986, and trial was held on June 2, 1986, and he was questioned as to whether he had any witnesses who could testify as to the origin of the fire and answered: “I’ve got another witness, I haven’t talked to him yet, I don’t know his name. He came to me today . . . the information came in from his daddy . . . Paul something. . . . He’s going to let me talk to his son. . . . This lady, I asked her to talk to the daddy and find out about it . . . the boy knows something about the colored boys that was up there working. . . . Ms. Davis, Lillian Davis . . . She told me that the boy was Paul’s son. . . . Q. . . . where does Paul live? A. Prince Drive or Prince Road.” The newly discovered witness, Theotis Welmaker, lives at 3525 Prince Road, Augusta, Georgia.

The trial court held that appellant did not show that the allegedly newly discovered evidence “could not have been discovered at the time of trial by the exercise of due diligence” and that such evidence was cumulative to the basic contentions which he asserted during the trial.

We cannot hold as a matter of law that the trial judge’s finding as to lack of diligence is without evidentiary support. It is not clearly erroneous. We find no abuse of discretion in the court’s refusal to grant a new trial on the basis of newly discovered evidence. Mixon v. Trinity Svcs., 176 Ga. App. 679 (3) (337 SE2d 362).

2. Appellant enumerates error in the court charging defendant’s eighth, ninth and tenth requested charges. Those requested charges are not in the record, and we note in appellant’s notice of appeal that he specifically directed the clerk to omit: “Defendant’s Request to Charge filed June 2, 1986.” “ ‘The burden is on him who asserts error to show it affirmatively by the record.’ ” Hancock v. Oates, 244 Ga. 175, 176 (259 SE2d 437). The brief cannot be used in lieu of the record for adding evidence to support a claim of error. Lowery v. Horn, 147 Ga. App. 880 (251 SE2d 840). Without the requested charges, we have no basis to evaluate a claim of error. Nothing is presented for review.

Decided October 14, 1987.

William R. McCracken, for appellant.

Patrick J. Rice, for appellee.

Judgment affirmed.

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


author: Sognier, Judge. Beasley, Judge,

text:
    74760.
    75218.
    BOSTIC v. THE STATE. THOMPSON v. THE STATE.
    (361 SE2d 872)
   Sognier, Judge.

Appellants were tried jointly and convicted of aggravated sodomy, and they appeal.

1. Bostic appeals on the general grounds, and Thompson contends error in denial of his motion for a directed verdict of acquittal based on insufficiency of the evidence. Appellants and the victim were inmates at the Marietta City Jail, and on the night of the offense charged against appellants, testimony showed that Bostic forced the victim to commit an act of oral sodomy on Thompson. Thereafter, Thompson forced the victim to submit to an act of anal sodomy. We find such evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Thus, it was not error to deny appellant Thompson’s motion for a directed verdict of acquittal. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984).

2. Appellant Bostic asserts error in the trial court’s denial of his request to charge on the lesser included offense of solicitation of sodomy. This enumeration of error is without merit.

A person commits the offense of aggravated sodomy when he commits sodomy with force and against the will of the other person. OCGA § 16-6-2 (a). A person commits the offense of solicitation of sodomy when he solicits another to perform or submit to an act of sodomy. OCGA § 16-6-15. In the instant case Bostic ordered the victim to commit an act of oral sodomy on Thompson. When the victim refused, Bostic slapped the victim across the face and again ordered him to commit sodomy on Thompson. The victim then did as ordered to avoid a further threatened beating by Bostic. Such evidence shows clearly that Bostic did not solicit sodomy; rather, he forced the victim to commit sodomy on Thompson by force and against the will of the victim. Bostic was charged as an aider and abettor under the provisions of OCGA § 16-2-20 (b) (3), which makes one who aids and abets the commission of an offense guilty of that offense as a party to the crime. There is no question from the evidence that Bostic aided and abetted commission of the offense of aggravated sodomy, and no issue was raised as to solicitation of sodomy. When the evidence establishes clearly that a defendant committed the offense charged and there is no evidence of a lesser offense, there is no error in failing to charge on the lesser offense. Hudson v. State, 175 Ga. App. 692, 693 (3) (334 SE2d 20) (1985).

3. Appellant Thompson alleges the trial court erred in its preliminary instructions, after the jury was sworn but before trial on the merits commenced, by telling the jury that the grand jurors had been convinced there was sufficient evidence to believe that a crime had been committed. Thompson argues that this was an incorrect statement of the law, that the instruction was misleading and confusing, and improperly shifted the burden of proof to Thompson.

Appellant Thompson made no objection to the trial court’s preliminary instructions to the jury, and this court will not consider issues raised for the first time on appeal. Tolbert v. State, 180 Ga. App. 703, 704 (3) (350 SE2d 51) (1986). Even treating the court’s preliminary instructions as a “charge,” however, to which appellant reserved exceptions, this enumeration of error is without merit.

The court in its preliminary instructions to the jury was explaining that no one accused of a felony can be brought to trial without first having been indicted. The court went on to explain that in returning indictments grand jurors do not try a criminal case, but investigate, and ordinarily only hear from State witnesses. The court then stated: “And if after hearing from those witnesses they are convinced that there is sufficient evidence that a crime has been committed to warrant a trial before a trial jury, then it’s the duty of the grand jury to indict... in order that the accused may be brought to trial so that under admissible, competent evidence in open court the guilt or innocence of the accused will be determined by a trial jury.” (Emphasis supplied.) The court went on to inform the jury of the presumption of innocence, and that the State had the burden of proving each essential element of the offense charged.

It is clear from reading the quoted portion of the court’s preliminary instruction that appellant Thompson has taken one portion of one sentence completely out of context, because the court did not instruct the jury that the grand jurors believed a crime had been committed, as alleged by Thompson. Rather, the court was explaining how a criminal case got to trial, and the function the grand jury played in that process. It is a fundamental rule of law that jury instructions must be viewed as a whole. Felts v. State, 244 Ga. 503, 504-505 (3) (260 SE2d 887) (1979). Viewing the instruction as a whole, it was a correct statement of the function of the grand jury, was not misleading, and did not shift the burden of proof to Thompson. Hence, there was no error.

4. Appellant Thompson asserts error by the trial court in not allowing him to enter a non-negotiated plea of guilty to simple battery. At a hearing outside the presence of the jury before trial on the merits commenced, it was disclosed that the State offered to let Thompson plead guilty to simple battery with a twelve-month sentence, to run from the date the incident occurred. However, the offer was contingent upon appellant Bostic accepting the State’s offer to let him enter a plea of guilty to aggravated assault, with a sentence of ten years to serve. Bostic declined that offer. At the hearing Thompson stated he was willing to enter a non-negotiated plea of guilty to simple battery. The court then informed him that if he was referring to a non-negotiated plea of guilty, he would have to plead guilty to the charge.

Appellant Thompson argues that if the State believed he was guilty only of simple battery, it should not have made its offer contingent upon Bostic’s entering a negotiated plea to aggravated assault. This argument is without merit. “There is no constitutional right to plea bargain and there is no necessity for a trial court to insure that a defendant who wishes to plead guilty has had the opportunity to plea bargain.” Harris v. State, 167 Ga. App. 153, 155 (6) (306 SE2d 79) (1983). Since a defendant has no right to plea bargain, it follows that whether to do so is a matter within the discretion of the prosecuting attorney. That being so, the State could place any conditions it desired in an offer to negotiate a plea of guilty to a lesser offense.

In regard to Thompson’s allegation that the court deprived him of the opportunity to enter a non-negotiated plea of guilty to the lesser offense, we are aware of no authority which would permit the court to accept a non-negotiated plea of guilty to an offense other than the offense charged. OCGA § 17-7-93 (a) provides, in pertinent part: “Upon the arraignment of a person accused of committing a crime, the indictment . . . shall be read to him and he shall be required to answer whether he is guilty or not guilty of the offense charged . . .” (Emphasis supplied.) Thus, the court was correct in advising appellant that he could enter a non-negotiated plea of guilty only to aggravated sodomy, the offense charged.

5. Appellant Thompson alleges that the trial court’s closing charge as to the procedure to be followed if the jury had a question of law or fact was improper, because it had a chilling effect on the jury’s deliberations and was a warning that asking questions could be to its detriment.

As in the case of the preliminary instructions which we discussed in Division 3, the charge complained of here was an explanation to the jury of the procedure to follow if they had any questions for the court which might arise during the jury’s deliberations. After explaining to the jury that the questions should be in writing, the court proceeded to advise the jury what it might expect in response to various questions, i.e., that a question of law could be answered quickly, while a question of fact might take longer, depending on the nature of the question and the information desired. In that regard, the court informed the jury that a question might require the re-reading of only one question and answer from the transcript, while other questions might require the reading of a witness’ entire testimony, or possibly the entire transcript. In regard to Thompson’s specific complaint that the charge had a chilling effect, that complaint is not supported by the transcript, because the court specifically instructed the jury that “I mention this to you certainly not to chill you from asking questions about evidence. You go right ahead and ask them if you think they are important.” The court also instructed the jury that it might receive more information than it thought it needed to answer an inquiry, “[b]ut certainly you have the right to ask those questions if you want to.”

We find nothing in the court’s charge which would inhibit the jury from asking questions if it desired to do so. On the contrary, a reading of the entire charge discloses a desire on the part of the court to fully inform the jury of its right to ask questions, the procedure to follow in asking questions, and what to expect in response to any questions the jury might have for the court. Appellant Thompson’s assertion that the charge was equivalent to a threat, causing the jurors not to ask a question, is sheer speculation, because there is nothing in the record to support appellant’s allegation of intimidation. In view of the compelling evidence of appellant Thompson’s guilt, we conclude it is highly probable that the charge, even if erroneous, did not contribute to the verdict, and consequently, it was harmless as a matter of law. Figuero v. State, 167 Ga. App. 810, 811 (3) (307 SE2d 706) (1983).

Judgments affirmed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur fully in Division 1, which although it is not explicit, holds that Bostic’s enumeration on the general grounds, as well as Thompson’s on the denial of his motion for directed verdict, bears with it no merit.

I fully concur in the remaining divisions also, except the application of the harmless error rule at the end of Division 5. There is no need to resort to it since we hold that the court did not err. Moreover, while to some the evidence may be compelling, conflicts within it may cause others pause.

Decided October 14, 1987.

Kenneth D. Feldman, for appellant (case no. 74760).

Roger L. Curry, for appellant (case no. 75218).

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.


text:
    74993.
    BARNES v. THE STATE.
    (361 SE2d 876)
   Banke, Presiding Judge.

Barnes was convicted of rape, aggravated sodomy, and aggravated assault. He appeals the denial of his motion for new trial. Held:

1. The appellant challenges the sufficiency of the evidence, claiming that there was no corroboration of the victim’s testimony. There is no longer any requirement that the victim’s testimony in a rape case be corroborated. See Ga. L. 1978, p. 3, § 1; Cuzzort v. State, 173 Ga. App. 157 (1) (325 SE2d 826) (1984), aff’d 254 Ga. 745 (334 SE2d 661) (1985). Moreover, the victim’s testimony in this case was in fact corroborated by the evidence of her outcry to her cousin and to a police officer who interviewed her at the hospital following the incident, as well as by the officer’s testimony that he observed bruises and “claw” marks on the victim’s body. The evidence in this case was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of each of the three offenses of which he was convicted.

2. The appellant asserts that the state violated his due process rights by failing to provide him with a complete transcript of his preliminary hearing. The record discloses that tape recordings of the preliminary hearing were produced by the state pursuant to a notice to produce but that the recordings were incomplete due to the apparent malfunctioning of the tape recorder used at the hearing. On the first day of trial, the appellant filed a motion to dismiss the indictment based on the state’s failure to provide him with a complete record of the committal hearing. He enumerates as error the denial of that motion.

Rules 26.2 (6) and (9) of the Uniform Superior Court Rules require that a record be made of a defendant’s probable cause hearing and that such record be made available to him upon payment of costs. However, in decisions issued both before and after the effective date of the Rules, this court has held that the failure to provide an accused with a transcript of his preliminary hearing for purposes of impeaching the witnesses against him does not amount to reversible error. See Robinson v. State, 182 Ga. App. 423 (1) (a) (356 SE2d 55) (1987); Harper v. State, 170 Ga. App. 601 (4) (317 SE2d 567) (1984).

In the present case, there was substantial compliance with the rules pertaining to the recordation of the probable cause hearing, and it appears that total compliance was prevented by causes beyond the state’s control. Under the circumstances, we hold that the appellant has established no ground either for the dismissal of the indictment or for the reversal of his conviction based on the state’s failure to provide him with a complete record of the committal hearing.

3. The appellant contends that the trial court erred in denying his motion to recall the victim and her cousin for further cross-examination following the state’s presentation of its case. The appellant’s counsel advised the court at that time that the recall of these witnesses was necessary in order to impeach their prior testimony that they had initially sought assistance at Grady Hospital on the morning of the incident but had been referred by Grady personnel to Clayton General Hospital. In denying the motion to recall, the trial court pointed out that the proper method of impeaching the victim and her cousin on this point would be to subpoena Grady Hospital’s administrator to testify concerning the hospital’s procedures in such instances. We agree. The appellant has failed to establish that the trial court’s refusal to allow him to recall these witnesses for further cross-examination constituted an abuse of discretion.

4. The trial court gave the jurors a modified “Allen” or “dynamite” charge (see Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896)), based on their announcement, after several hours of deliberation, that they were unable to agree unanimously on a verdict as to one count of the indictment. The giving of this charge prompted the appellant to move for a mistrial. He assigns as error the denial of that motion.

The charge at issue is identical to that contained in the Council of Superior Court Judges’ Suggested Pattern Jury Instructions, Volume II, Criminal (1984). It has previously been approved by our Supreme Court in Spaulding v. State, 232 Ga. 411, 413 (207 SE2d 43) (1974). See also Anderson v. State, 247 Ga. 397 (276 SE2d 603) (1981); McMillan v. State, 253 Ga. 520, 523 (322 SE2d 278) (1984). Accordingly, this enumeration of error is without merit.

5. The appellant submits that the trial court erred in refusing to order a mistrial based on an inconsistency in the verdict. Initially, we note that the Georgia Supreme Court has recently abolished the inconsistent verdict rule in criminal cases. See Milam v. State, 255 Ga. 560 (2) (341 SE2d 216) (1986). In the present case, the jury initially found the appellant guilty of both simple and aggravated sodomy in addition to the charges of rape and aggravated assault. Instructing them that they were not authorized to find the appellant guilty of both simple and aggravated sodomy, the trial court thereupon gave them a complete recharge on the two offenses and sent them back for further deliberations. Thereafter, the jury amended their verdict to find the appellant “guilty of the offense of aggravated sodomy.”

Decided October 14, 1987.

Edward K. Albrecht, Alice C. Stewart, for appellant.

“Verdicts are to have a reasonable intendment, are to receive a reasonable construction, and are not to be avoided unless from necessity.” OCGA § 17-9-2. Under the present facts, the court did not err in sending the jury back, upon proper instructions, to correct the defect in their original verdict.

6. Finally, the appellant asserts that he received ineffective assistance from his trial counsel. This issue was not raised in the trial court, and consequently the trial court has not had an opportunity to rule on it. Following the procedures set forth in Smith v. State, 255 Ga. 654 (3) (341 SE2d 5) (1986), we accordingly vacate the denial of the motion for new trial and remand the case back to the trial court for a hearing and appropriate findings on this issue. In the event the trial court determines that the appellant did receive effective assistance of counsel at trial, then the trial court shall enter a new order denying the motion for new trial, with the appellant’s right of subsequent appeal being limited to this issue and this issue only. In the event the trial court determines that the appellant did not receive effective assistance from his trial counsel, then the appellant shall, of course, be entitled to a new trial. But see Thompson v. State, 257 Ga. 386 (359 SE2d 664) (1987).

Judgment vacated and case remanded with direction.

Benham, J., concurs. Carley, J., concurs specially.

Carley, Judge,

concurring specially.

I fully concur with Divisions 1, 2, 3, 4, 5 and 6 of the majority opinion. With regard to Division 6 of the majority opinion dealing with ineffective assistance of counsel, I agree that the procedure set forth in Smith v. State, 255 Ga. 654 (3) (341 SE2d 5) (1986) is applicable and should be followed. However, I disagree with the portion of Division 6 vacating the judgment of the court below and with the judgment line to the extent that the judgment of the trial court is vacated. While I agree that the case must be remanded with direction, I believe that, as in Smith, the judgment should be affirmed subject to that remand with direction. Accordingly as in Smith, the judgment line in this case should be: Judgment affirmed and case remanded with direction. See also Hambrick v. State, 256 Ga. 141 (344 SE2d 639) (1986).

Robert E. Keller, District Attorney, Deborah Benefield, Assistant District Attorney, for appellee.


author: Pope, Judge.

text:
    74635.
    WILLIAM L. BONNELL COMPANY v. McKOON.
    (361 SE2d 680)
   Pope, Judge.

The sole issue in this workers’ compensation case is whether claimant gave his employer timely notice of his injury pursuant to OCGA § 34-9-80. On October 8, 1984 claimant began experiencing shoulder pain while at work. Claimant did not inform his employer about his pain at that time and continued working until the end of his shift, at which time he consulted a physician who told claimant he had bursitis. Claimant returned to work the following day and informed one of his employer’s superintendents that his shoulder was “bothering” him and that he had been diagnosed as having bursitis. Claimant gave no indication that his condition was caused by his employment or that he had suffered a work-related injury. Indeed, claimant testified that at that time he was unaware that he had suffered a work-related injury.

Claimant continued to experience pain and continued to seek treatment. In January 1985 claimant’s physician referred claimant to Dr. Jack H. Powell III, an. orthopedic surgeon. Dr. Powell made a preliminary diagnosis of acromioclavicular joint arthritis or mild impingement syndrome and scheduled claimant for arthroscopic surgery. However, in his notes dated February 17,1985 Dr. Powell stated that “I really am not sure what is wrong with this shoulder to be honest.” The arthroscopic procedure was postponed until March 21, 1985 because of other, unrelated health problems suffered by claimant. Following the procedure Dr. Powell diagnosed claimant as having impingement syndrome with tenosynovitis. Claimant’s pain persisted and Dr. Powell referred him to another doctor, who concurred in the impingement syndrome diagnosis and performed a neoacromioplasty in hopes of alleviating claimant’s pain. Claimant’s last day worked for the employer was January 17, 1985, when he left work early because his mother was having surgery. On April 8, 1985 claimant’s attorney notified claimant’s employer that in December 1984 claimant had received an on-the-job injury while lifting heavy metal and that said injury had resulted in claimant’s inability to work and had required claimant to remain under a doctor’s care.

The administrative law judge (ALJ) denied the claim based on claimant’s failure to give the employer notice of his injury as required by law and claimant’s failure to show that his injury arose out of and in the course of his employment. The board reversed the findings of the ALJ and found that claimant’s work aggravated his chronic preexisting shoulder condition and that claimant therefore suffered a compensable work-related injury. The board also found “that the claimant provided his employer with sufficient notice of the possibility of a compensable injury so as to allow a reasonable investigation if the employer chose to do so.” The superior court affirmed the award, and we granted the employer’s application for discretionary appeal. Held:

OCGA § 34-9-80, in pertinent part, provides: “Every injured employee or his representative shall, immediately on the occurrence of any accident or as soon thereafter as practicable, give or cause to be given to the employer ... a notice of the accident. This notice shall be given by the employee either in person or by his representative, and until such notice is given the employee shall not be entitled to any physician’s fees nor to any compensation which may have accrued under the terms of this chapter prior to the giving of such notice. . . . No compensation will be payable unless such notice, either oral or written, is given within 30 days after the occurrence of an accident. ...”

As recently reiterated by our Supreme Court, that section “does not require that notice of an injury or accident must show that it arose out of and in the course of employment. To effectuate the humane purposes for which the Workers’ Compensation Act was enacted, . . . the required notice need not be given with a view to claiming compensation, and is sufficient if it puts the employer on notice of the injury so that it may make an investigation if it sees fit to do so.” (Punctuation omitted.) Gossage v. Dalton Fire Dept., 257 Ga. 430 (360 SE2d 249) (1987). The court then went on to hold that the claimant’s statement that he had “sneezed and hurt his back” constituted sufficient notice under the facts of that case. However, as explained hereinbelow, we find the court’s conclusion in Gossage to be inapposite to the present case.

In Gossage the claimant was aware that he had suffered an injury and clearly gave notice to his employer that he had been injured. Conversely, in the present case, the claimant, who stated only that he was suffering from bursitis, did not inform his employer that he had suffered any sort of accident or injury, whether job-related or not. Indeed, the claimant testified that as of January 30, 1985 he was unaware that he had suffered any accident or injury. Likewise, the record shows that as of February 17, 1985 claimant’s own physician was unsure of the genesis of claimant’s shoulder pain. Just as we have stated that it is illogical and unreasonable to require an employee to give notice of an injury when the employee has not yet learned of the existence of the injury, Commercial Union Ins. Co. v. Verner, 150 Ga. App. 13, 14 (256 SE2d 603) (1979), we likewise find that it is illogical and unreasonable to hold that an employer has sufficient notice of the existence of an injury that has not yet been discovered by either the employee or his treating physician. Thus, it is clear to us that under the circumstances presented here the employer’s knowledge of claimant’s bursitis was insufficient as a matter of law to constitute the notice of a potential workers’ compensation claim as contemplated by OCGA § 34-9-80. Accord Dugger v. North Bros. Co., 172 Ga. App. 622 (1, 2) (323 SE2d 907) (1984). However, we cannot say that the April 8, 1985 notice to the employer was insufficient as a matter of law without first determining when, in fact, claimant had knowledge that he may have suffered a compensable injury. This question, however, is one of fact, not law, that must be resolved by the appropriate tribunal below. Dugger, supra at 623. Hence, we find it necessary to remand this case to the board via the superior court in order to determine when the claimant had knowledge that he may have suffered a compensable injury which in turn, will determine whether the notice given to the employer on April 8, 1985 was timely.

Decided September 11, 1987

Rehearing denied October 15, 1987.

Oliver B. Dickins, Jr., for appellant.

Arthur B. Edge IV, for appellee.

Judgment reversed and case remanded.

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


author: Beasley, Judge. Deen, Presiding Judge,

text:
    74746.
    METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY v. LEDBETTER.
    (361 SE2d 878)
   Beasley, Judge.

On January 16, 1982, the appellee, Allen Ledbetter, injured his back in the course of his employment with the Metropolitan Atlanta Rapid Transit Authority. For approximately two weeks he received workers’ compensation income benefits, which were suspended upon his return to work. Ledbetter made no further claim for benefits until April 22, 1985, when his attorney contacted the State Board of Workers’ Compensation, requesting a hearing on a change in condition claim for permanent partial disability. The administrative law judge’s award of benefits for a twenty percent permanent partial disability was adopted by the full board and affirmed by the superior court. This discretionary appeal followed.

In rejecting MARTA’s defense that Ledbetter’s claim was barred by the two-year limitation period provided under OCGA § 34-9-104 (b), the ALJ held that “[s]ince it is obvious that claimant had continual back pain from his work related injury of 1982 and that he had some degree of permanent partial disability, the WC-2 suspending payment of income benefits for total disability did not represent final payment of income benefits due.” The ALJ apparently relied upon Holt’s Bakery v. Hutchinson, 177 Ga. App. 154 (3) (338 SE2d 742) (1985), wherein this Court ruled that where there is evidence to support a finding that a claimant was potentially due other income benefits at the time of the compensable injury and was not paid the benefits, then OCGA § 34-9-104 (b) is inapplicable.

MARTA contends that because the instant case is so distinguishable factually from Holt’s Bakery, reliance upon that case in awarding Ledbetter benefits was a perversion of the law. To the contrary. What is meant by “potential” is not that the type of disability may arise in the future, but rather that there is evidence that it existed at the time although no claim was made for it. In Holt’s Bakery, there was evidence that Mrs. Hutchinson suffered what was thought to be temporary partial disability from the time of cessation of temporary total disability until the time she claimed permanent partial disability. Although she did not file a claim for such benefits, this evidence supports the conclusion that there were benefits due her under the act during this time. Thus, the statute was not running.

The same reasoning applies in the present case, although here the arguable unclaimed benefit due was permanent partial disability. We should not disregard the plain language of the legislature that a party may apply for a change of condition two years from “the date of final payment of income benefits due under this chapter.” OCGA § 34-9-104 (b). (Emphasis supplied.)

Applying it to the facts of this case, the judgment of the lower court is affirmed.

Judgment affirmed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Pope and Benham, JJ., concur. Deen, P. J., Carley and Sognier, JJ., dissent.

Deen, Presiding Judge,

dissenting.

1. Because the majority opinion has mortally wounded the limitation period for filing a change in condition claim, I offer this dissent as a eulogy for OCGA § 34-9-104 (b).

OCGA § 34-9-104 (b) imposes a two-year limit on asserting claims for a change in condition, that limitation period commencing upon “the final payment of income benefits due . . There was nothing nebulous about that statutory limitation until this court added the gloss, “potentially due other income benefits,” in Holt’s Bakery v. Hutchinson, 177 Ga. App. 154, 160 (338 SE2d 742) (1985), which the majority opinion affirms in this case. That judicial gloss emasculates the limitation period, allowing easy avoidance simply by raising a colorable claim that at the time of the final payment of income benefits, the claimant was potentially due other income benefits. In other words, the change in condition claim would not be barred where a claimant may have been entitled to more benefits had he applied for them sooner. Under the holdings of Holt’s Bakery and the instant case, a worker could wait 10 or 20 or 30 or even 50 years before filing a change in condition claim. Every conceivable purpose for a statute of limitations is defeated by this holding.

The Holt’s Bakery construction of OCGA § 34-9-104 (b) just does not make sense. “In its larger sense the word ‘due’ is often used to cover liabilities matured and unmatured, or as importing an existing obligation, whether the time of payment has arrived or not.” Pope v. Matthews, 125 Ga. 341, 347 (54 SE 152) (1906). In its narrower and perhaps more frequently used sense, the word means owing and immediately payable, or matured. See CJS Due, pp. 572-573. Were one to apply the “larger sense” definition of due, perhaps the Holt’s Bakery gloss of “potentially due” would be acceptable. However, that construction is possible only by ignoring the rest of the statute that measures the limitation period from “the date of final payment of income benefits.” Applying the statute in terms of benefits “potentially due,” the question arises of why the statute even contains that measuring point, since there obviously will be no date of payment of income benefits, much less “the date of final payment,” from which the limitation period will run. Holt’s Bakery (and now the majority opinion) may thus construe the limitation period of OCGA § 34-9-104 (b) out of existence.

The only sensible meaning to be applied to the word “due” in the context of this statute is the narrower definition. OCGA § 34-9-104 (b) simply envisions situations where a claimant received income benefits which were terminated, and bars any subsequent claim for a change in condition that is not filed within two years of the termination of those benefits actually paid. See Larson, 3 Workmen’s Compensation Law, § 78.43 (g).

As noted by this court itself in Holt’s Bakery at 158, the 1978 amendments to the workers’ compensation law “in part were intended to more expeditiously provide claimants with needed financial assistance by obviating, in uncontroverted claims, the need for a formal award by an ALJ or the Board prior to a claimant receiving any compensation.” Under the 1978 amendments, the commencement of the limitation period in OCGA § 34-9-104 (b) (former Code Ann. § 114-709) was “changed” from “the date that the board is notified that the final payment of a claim has been made pursuant to a board order” to “the date of final payment of income benefits due under this chapter.” The statute apparently was so amended merely to define a commencement date for the limitation period that would encompass both formal award and voluntary payment situations. After all, it would be something of an anomaly to foster compensation without a formal award, yet still require a formal board order before those benefits could be terminated. See, in this regard, Cedartown Nursing Home v. Dunn, 174 Ga. App. 720 (330 SE2d 905) (1985).

The statutory limitation in OCGA § 34-9-104 (b) is not glued together with rubber cement, capable of flexion at the will of either claimant or court. The cryptic and amorphous application of the limitation period in Holt’s Bakery and the instant case will plague claimants, attorneys, administrative law judges, the board, superior courts, this court, and possibly the Supreme Court with confusion and increased litigation. The statutory construction expounded in Holt’s Bakery should be put to sleep, rather than the statute itself. Inasmuch as Ledbetter did not assert a claim for a change in condition until over three years from the date of the final payment of income benefits in 1982, the claim was barred by the limitations period. Led-better’s claim is “merely a voice crying from the tomb, praying for resurrection.” DeVane v. Atlanta Birmingham &c. R. Co., 4 Ga. App. 136, 141 (60 SE 1079) (1908).

2. Assuming the viability of Holt’s Bakery, however, the instant case is easily distinguishable on its facts. In Holt’s Bakery, the WC-2 form suspending payment of income benefits also indicated “Recurring Temporary Total”; no final medical report was ever filed. In the instant case, at the time of the suspension of the income benefits in 1982, there was no indication of a continuing or recurring disability, and a final medical report was filed which clearly stated that Ledbetter could return to his normal work duties and that he had no permanent disability from the injury. At the time of the suspension of benefits and filing of this final medical report, there was absolutely no evidence to support any finding that Ledbetter was potentially due other income benefits. If Ledbetter subsequently experienced back problems, under OCGA § 34-9-104 (b) he had two years from the date of final payment of the original income benefits in which to file a claim for a change in condition. He did not, and his claim should be barred under that statute.

I am authorized to state that Judge Carley and Judge Sognier join in this dissent.

Decided September 9, 1987

Rehearing denied October 15, 1987

Michael D. Usry, for appellant.

John S. D’Orazio, for appellee.

       We made distinctions between different types of benefits and the law thereby applicable to them in ITT Continental Baking Co. v. Powell, 182 Ga. App. 533 (356 SE2d 267) (1987). There the categories related to the separate procedures for medical benefit claims as opposed to lost wages claims.


author: Deen, Presiding Judge.

text:
    75098.
    PERKINS et al. v. AUGSPURGER.
    (362 SE2d 88)
   Deen, Presiding Judge.

The appellants, Charles and Mildred Perkins, were injured when their pickup truck was struck by the vehicle driven by the appellee, Hazel Augspurger. The Perkinses consequently commenced this action against the appellee, and following the trial, the jury awarded (1) Charles Perkins $2,090.60 for medical expenses and $660 for pain and suffering; (2) Mildred Perkins $570.50 for medical expenses and $250 for pain and suffering; and (3) $2,500 for damages to the pickup truck. Subsequently, the trial court denied the appellants’ motion for new trial and partially granted the appellee’s motion for judgment notwithstanding the verdict, striking any award for medical expenses, and this appeal followed. Held:

1. Because the Perkinses had already been compensated to some extent by no-fault insurance benefits, the trial court instructed the jury “that medical bills which have been submitted . . . in an amount of less than $2,500 per plaintiff are not to be considered ... as a potential award against the defendant as the same amount cannot be considered under the law. These bills are submitted only for proof of pain and suffering, if any.” The Perkinses acknowledge the impropriety of the $570.50 award for Mildred Perkins’ medical expenses, since her actual medical expenses of $570.50 obviously were less than $2,500. (Charles Perkins presented medical expenses in excess of $5,400, although this evidence was not uncontradicted.) The appellants contend that this obviously erroneous award demonstrated that the jury verdict was “manifestly the result of mistake and confusion,” necessitating a new trial. In short, the appellants essentially contend that a new trial is necessary because they were not entitled to all of the jury’s award, yet hope for an even greater verdict upon retrial of the case. Notwithstanding the superficial oddity of that position, we agree that the trial court should have granted a new trial, because it is apparent that the jury did fail to deduct the $2,500 per plaintiff.

In attacking the trial court’s grant of partial judgment notwithstanding the verdict for the appellee, however, the appellants seek to salvage the $2,090.60 award for Charles Perkins’ medical expenses by citing the general rule against imputing to a jury an inability to follow a plain and unambiguous jury instruction, Greene v. Trevena, 142 Ga. App. 621 (1) (236 SE2d 775) (1977), and pointing out that under the evidence the jury could have applied the $2,500 offset for no-fault benefits and still have made the $2,090.60 award. We find that reasoning spurious, as it is highly unlikely that the jury could have applied the offset to Charles Perkins’ claim when it so obviously failed to apply it to Mildred Perkins’ claim.

Decided October 1, 1987

Rehearing denied October 15, 1987

James G. Peek, J. Corbett Peek, Jr., for appellants.

The trial court similarly rejected that reasoning in granting partial judgment notwithstanding the verdict, with regard to the claim for medical expenses. Unfortunately, that grant of partial judgment n.o.v. was error because the appellee’s motion for directed verdict addressed only the claim for property damage; no motion for judgment n.o.v. regarding the claims for medical expenses should have been entertained by the trial court. Gray v. Miller, 166 Ga. App. 792 (305 SE2d 651) (1983).

2. “The measure of damages in an action to recover for injuries to a motor vehicle caused by a collision or other negligence of a defendant is the difference between the value of the vehicle before and after the collision or other negligence, but where the owner has had the vehicle repaired, that loss can be established by showing the reasonable value of labor and material used for the repairs, and the value of any depreciation (permanent impairment) after the vehicle was repaired, provided the aggregate of these amounts does not exceed the value of the vehicle before the injury.” Perma Ad Ideas v. Mayville, 158 Ga. App. 707, 707-708 (282 SE2d 128) (1981). In attempting to show the reasonable value of the labor and material used for the repairs of their pickup truck, the appellants offered the actual repair bill and testimony about the amount paid for repair, both of which were disallowed by the trial court on the grounds that it constituted inadmissible hearsay.

We agree with the appellants that the actual repair bill and testimony regarding payment of that bill were direct evidence of the cost of repairs, which certainly related to the issue of reasonable value of labor and material used for repairs. Although the appellants did recover $2,500 for the property damage, evidently because of Charles Perkins’ testimony about the diminution of the pickup truck’s value, the appellants should have been allowed to develop fully the “reasonable value of labor and material” measure of damages.

Judgment reversed.

Birdsong, C. J., and Pope, J., concur.

Edward W. McCrimmon, for appellee.