author: Pope, Judge. Beasley, Judge, Banke, Presiding Judge,

text:
    A89A0656.
    PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY v. BURNETTI.
    (385 SE2d 446)
   Pope, Judge.

The appellee filed suit against the appellant insurer seeking to recover Personal Injury Protection, or “no-fault,” benefits allegedly owed him due to his having been “struck by a motor vehicle” operated by the appellant’s insured. During his deposition, the appellee testified that while using a public telephone located at an intersection, he observed the insured driving towards him on a collision course with the telephone stand. He stated that he was able to jump out of the way and avoid being struck by the vehicle before it collided with the telephone stand but that in doing so he twisted and injured his knee.

The appellant insurer moved for summary judgment on the ground that the appellee’s testimony established without dispute that he had not been “struck by [a] motor vehicle” within the contemplation of OCGA § 33-34-7 (a) (3). In response, the appellee submitted an affidavit in which he averred that, in his efforts to avoid being hit, he had “struck the wall which was adjacent to where I had been standing” and had then “[fallen] to the ground, striking the pavement.” The case is before us pursuant to our grant of the appellant insurer’s application for an interlocutory appeal from the denial of its motion for summary judgment.

OCGA § 33-34-7 (a) (3) provides for the payment of basic no-fault benefits for economic loss resulting from “[accidental bodily injury sustained by any . . . person as a result of being struck by the owner’s motor vehicle while a pedestrian in this state.” There is no question that the appellee in this case was a “pedestrian” at the time of the accident. The question then is whether he was “struck by” the insured’s vehicle. In construing that term, this court has previously held that “one can be ‘struck by’ an automobile for the purpose of the application of OCGA § 33-34-7 (a) (3) without actually coming into physical contact with the automobile itself.” Johnson v. Nat. Union Fire Ins. Co., 177 Ga. App. 204, 206 (338 SE2d 687) (1985). “In ordinary parlance, the word ‘struck’ is frequently used to denote a movement or a force causing or resulting in a physical impact. The ‘striking’ force can be either the force which most immediately comes in contact with the object struck, or it can be the force setting in motion a chain of events leading up to the striking of an object.” (Emphasis supplied.) Id. at 205. In the case at bar it is clear that the appellant’s vehicle was the movement or force which set in motion the chain of events which led to the appellee’s physical impact with a stationary object. This was sufficient to show that appellee was “struck by” appellant’s vehicle and the trial court properly denied appellant’s motion for summary judgment.

The dissent, however, would deny recovery because the appellee, instead of being hit by appellant’s vehicle, or by another vehicle propelled into him by appellant’s vehicle, sustained his injuries when he himself was propelled into a stationary object while attempting to avoid impact with the appellant’s vehicle. To grant recovery to a person who, sensing danger, does nothing to remove himself from peril and is thereby injured by the impact itself with the on-coming vehicle, while denying recovery to one who, under the exact same set of circumstances, attempts to escape danger by fleeing the path of the oncoming vehicle, thereby sustaining injury by impacting with an object other than the vehicle, leads to anomalous, if not absurd results. Clearly, in either situation, the vehicle was the force which led to the claimant’s physical impact with or striking of an object and recovery should be allowed.

As to the apparent discrepancy between appellee’s deposition testimony and the averments in his affidavit, it has been held by our Supreme Court that questions of whether the testimony of a party-witness on summary judgment is self-contradictory and whether a reasonable explanation has been offered for the contradictory testimony are questions of law for the trial court to decide. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986); see also Chapman v. Burks, 183 Ga. App. 103, 106 (357 SE2d 832) (1987). Here the trial court, in denying the motion for summary judgment, obviously resolved the apparent conflict in appellee’s favor. I would note also that the resolution of any actual discrepancies concerning the occurrence in question will ultimately be for the jury’s resolution.

Judgment affirmed.

Carley, C. J., Deen, P. J., McMurray, P. J., and Benham, J., concur. Beasley, J., concurs in part and dissents in part. Banke, P. J., Birdsong and Sognier, JJ., dissent.

Beasley, Judge,

concurring in part and dissenting in part.

I agree with the majority’s ruling with respect to the apparent discrepancy in appellee’s statements, but I cannot concur in the construction of OCGA § 33-34-7 (a) (3). In this regard I agree with the dissent.

The Supreme Court has stated, in connection with its interpretation of this very provision, “that the word ‘strike’ should be given its ordinary meaning, which is ‘To come into violent contact with; hit.’ Funk & Wagnall’s Standard Dictionary.” Collins v. Inti. Indem. Co, 256 Ga. 493, 495 (349 SE2d 697) (1986). “By” relates to the vehicle which is the activating force, that which strikes the pedestrian directly or, as construed by the appellate courts, indirectly by striking something which strikes the pedestrian.

When it is the pedestrian’s activating force which results in the injury complained of, however, and it is he who strikes, this is not covered within the concept of “struck by” the vehicle. While this, too, is indirect, it is indirection of a different nature and cannot be squeezed into the language used by the legislature.

We cannot change the language so as to cover circumstances not covered by the plain language of the statute, on the supposition that the legislature would have changed the language if it had foreseen these circumstances. See dissent in State Farm &c. Ins. Co. v. Holmes, 175 Ga. App. 655, 658 (333 SE2d 917) (1985).

Banke, Presiding Judge,

dissenting.

1. By its holding in this case, the court has effectively eliminated the words, “as a result of being struck by the owner’s motor vehicle,” from OCGA § 33-34-7 (a) (3), thereby holding, in effect, that no-fault benefits may be recovered by any person who suffers an accidental bodily injury in this state in connection with the ownership, use or maintenance of an insured motor vehicle. This may or may not be an enlightened position as a matter of public policy, but it is unquestionably contrary to the plain wording of the statute.

Personal injury protection, or no-fault, insurance coverage was never intended to be co-extensive with motor vehicle liability insurance coverage. No-fault insurance is, of course, much broader in scope in that, as the name implies, it provides for compensation without regard to fault. On the other hand, it is more restrictive than liability insurance in the sense that it insures only against economic loss. See OCGA §§ 33-34-4 (a); 33-34-5 (a). Also, from the wording of OCGA § 33-34-7 (a), it is apparent that no-fault coverage was intended to apply only to injuries sustained while (1) occupying a motor vehicle or (2) as the result of being “struck by” a motor vehicle while a pedestrian. Motor vehicle liability insurance, on the other hand, encompasses all injuries for which an insured could be considered legally responsible, provided only that the injuries arose from the ownership, use or maintenance of a covered motor vehicle. See generally Rustin v. State Farm &c. Ins. Co., 254 Ga. 494 (330 SE2d 356) (1985); Weeks v. Auto-Owners Ins. Co., 175 Ga. App. 725 (334 SE2d 325) (1985); Hartford Accident &c. Co. v. Booker, 140 Ga. App. 3 (2) (230 SE2d 70) (1976).

A restriction somewhat analogous to the “struck by” provision of § 33-34-7 (a) is contained in the Code section governing uninsured motorist coverage, as follows: “[I]n order for the insured to recover under the [uninsured motorist] endorsement where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured.” OCGA § 33-7-11 (b) (2). Both in construing the “struck by” terminology of OCGA § 33-34-7 (a) and in construing the “actual physical contact” provision of OCGA § 33-7-11 (b) (2), this court has held that a claimant need not actually have come into contact with the vehicle in question if that vehicle struck another vehicle which in turn came into contact with the claimant. See State Farm &c. Ins. Co. v. Carlson, 130 Ga. App. 27 (202 SE2d 213) (1979) (holding that the “actual physical contact” requirement of the uninsured motorist statute was met where an unknown hit-and-run driver struck a third vehicle which in turn struck the insured vehicle); Johnson v. Nat. Union Fire Ins. Co., 177 Ga. App. 204 (1) (338 SE2d 687) (1985) (holding that the “struck by” requirement of OCGA § 33-34-7 (a) (3) was satisfied where the insured vehicle struck a parked vehicle which was thereby propelled into the claimant).

It is one thing to construe OCGA § 33-34-7 (a) (3) in such a way that a pedestrian who is “struck by” an object which has been set in motion by a motor vehicle is treated as if he had been “struck by” the vehicle itself. It is quite another thing to construe the statute in such a way that it makes no difference whether the pedestrian has been struck “by” anything at all. All bodily injuries result from physical trauma of some sort, and the language of the statute was obviously intended to distinguish certain types of automobile-related impact from others. By placing a pedestrian who collides with a static object while exercising his own locomotive power in the same category with respect to eligibility for no-fault benefits as one who has been “struck by” a motor vehicle, we are going well beyond the legitimate constraints of statutory interpretation and are simply re-drafting the statute to suit our own notion of what the law ought to be.

2. Regardless of how we interpret the language of OCGA § 33-3-47 (a) (3), I believe the appellant insurer was entitled to summary judgment pursuant to Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986), due to the fact that, in an affidavit submitted in opposition to the appellant’s summary judgment motion, the appellee contradicted his own prior deposition testimony without offering a reasonable explanation for the contradiction.

In his affidavit, the claimant averred that in his successful effort to avoid being struck by the insured vehicle, his “left hip and left shoulder struck the wall which was adjacent to where [he] had been standing,” whereupon he “fell to the ground, striking the pavement.” However, during his deposition, the appellee had complained only of having twisted his knee, as follows: “Q. Explain to me again what body movements took place on your part, you pulled back from the phone booth? A. I pulled back and I twisted to the right. . . . Q. You stepped back and you turned to your right? A. Yes, sir, ... to face the vehicle. . . . Q. No part of the vehicle struck you? A. No, sir. Q. And you just stood there after the vehicle stopped? A. Yes, sir.”

While the appellee attempted to explain this contradiction by averring in his affidavit that he thought the questions asked during the deposition had referred to a time period subsequent to the accident, that explanation was inconsistent not only with the above-quoted portions of his deposition testimony, but also with his additional deposition testimony as follows: “Q. All right. Did you fall down? A. You mean at the time of the incident? Q. Yes. A. No, sir.”

“As instructed in Prophecy Corp, supra at 30, on summary judgment the questions of whether the testimony is self-contradictory and whether a reasonable explanation has been offered are questions of law for the court to decide.” Chapman v. Burks, 183 Ga. App. 103, 106 (357 SE2d 832) (1987). Because the explanation offered by the appellee for the conflict between his affidavit and his deposition testimony is itself contradicted by his deposition testimony, as well as for the reasons stated in Division 1 of this dissent, I would hold that the trial court erred in denying the appellant’s motion for summary judgment.

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

Decided July 14, 1989

Rehearing denied July 31, 1989

Wildman, Harrold, Allen, Dixon & Branch, Alfred B. Adams III, Frank 0. Brown, Jr., for appellant.

Carter & Butt, Eugene D. Butt, for appellee.


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A89A0661.
    DAWSON v. THE STATE.
    (385 SE2d 684)
   Birdsong, Judge.

This case, on earlier appeals, was remanded to the trial court for a determination on the solitary issue of effectiveness of counsel. Dawson v. State, 258 Ga. 380 (369 SE2d 897); Dawson v. State, 186 Ga. App. 718 (368 SE2d 367).

On remand, the trial court denied the claim of ineffectiveness of counsel. Dawson contends this was clear error because his trial counsel was unaware of the rule that a prior inconsistent statement of a witness is subject to cross-examination is admissible as substantive evidence and is not limited in value only to impeachment purposes, under Gibbons v. State, 248 Ga. 858 (286 SE2d 717). The prior inconsistent statement was an allegedly exculpatory letter written by co-conspirator Hampton to appellant after Hampton had pleaded guilty, and after Hampton had given a taped 11-page statement to the police incriminating appellant.

Appellant was found guilty in 1986 of conspiracy to commit armed robbery and attempted armed robbery. His defense was that, although he had been with the two men who committed the robbery attempt, he was “passed out” in the back seat of the conspirator’s car when the other two went inside the victim’s house. Dawson contends he knew nothing of the crime when it was committed; and, the next day he “turned in” the others.

Dawson complains also of counsel’s “failure to interview” that conspirator, Hampton, who was at the courthouse, readily available to be interviewed and cross-examined.

On remand, the trial court held: “[Defense counsel] stated he was prepared to impeach Hampton with these prior statements in the event the State used [him] as a witness but he [feared calling] Hampton as Hampton had given an in-custody statement which inculpated Dawson. . . .The State introduced the in-custody statement of Hampton. . . . Counsel’s actions are usually based, quite properly, on informed strategic choices. Representation is an art, and an act or omission, if reasonable, will not result in the violation of the defendant’s rights guaranteed by the sixth amendment. The Court finds that . . . Counsel cannot be criticized in his judgment not to call the co-defendant [Hampton] and the Court further finds trial Counsel’s preparation and investigation were thorough and adequate.” Held:

1. Under all the facts and circumstances of the case and after reviewing the transcript of the hearing on ineffectiveness of counsel, we conclude it is impossible to say defense counsel’s performance was “deficient” (Brogdon v. State, 255 Ga. 64, 68 (335 SE2d 383)), i.e., that he made an incorrect decision in the first place, in deciding not to call co-defendant Hampton to the stand to support allegedly exculpatory statements he had made concerning appellant’s participation in the crime, and to impeach an inculpatory statement made to the police.

Hampton had made an 11-page taped statement to an investigating officer, in which he strongly and in minute detail inculpated appellant in the crime. Defense counsel had a copy of this statement. He also had a copy of an allegedly exculpatory letter written to appellant by Hampton after Hampton had pleaded guilty and been incarcerated. We think defense counsel was correct in concluding the tone of this letter would not do much to help appellant’s defense or boost Hampton’s credibility.

The letter with some vulgarity, states: “David . . . You know what? That’s exactly how I’m remembering everything now that I think of it. You can depend on me helping you keep out of this [trouble] [be] cause I don’t want anybody to get in trouble who can get out of it. Besides! Like you said, you didn’t have anything to do with it at all. And you know that I can help you out, and will. You just be sure you do something for me [be] cause you know that I’ll be doing a hell of a lot for you. . . Go by Jackie’s and leave me something as soon as you get home so that she can bring it to me tomorrow. She lives on Queen St., behind Big Star in apt. #310 and has a brown Ford LTD. If you can, send me a quarter [be] cause $30.00 ain’t nothing compared to 30 years, is it? And if you have any change when you get ready to leave, let a runaround bring me some. I guess we will go to court next month and I’m sure I can keep you from having to go. Hell David!! I don’t want to see you get [messed] up. There’s no reason for it [be] cause you weren’t involved in the [trouble]!! So count on me helping you every way I can!!! And I know it was my mom who got all the heat on us to start with. . . . Just don’t worry about me [be] cause I’m going to take all this [trouble] by myself. . . . But! Make sure you help me out [be] cause you know I’m doing a . . .lot for you and hope you’ll appreciate it enough to do me a favor in return. . . . Go by Jackie’s as soon as you get home so she can bring that to me tomorrow. . . . GOOD LUCK”

This letter on its face strongly suggests that the purported “exculpation” was dependent upon appellant’s assisting Hampton while Hampton was in jail. Hampton even admitted to the trial court, at the ineffectiveness of counsel hearing, that his request for a “quarter” meant “that if [appellant] didn’t send [Hampton] some money and some dope then [appellant] might get thirty years.”

Defense counsel’s consideration of this letter and the problems it would pose, and the problems Hampton’s testimony might pose, extended to the determination that by the time this letter was written, Hampton had to know that it was appellant who had reported the crime to the police and turned Hampton in, and that it was not Hampton’s mother. We are unable to disagree that, in the face of Hampton’s 11-page statement implicating appellant, the tone of this letter does nothing to engender counsel’s confidence in Hampton’s sincerity in exculpating appellant. Moreover, we conclude that the underlying circumstances just described could contribute but little to trial counsel’s confidence in any expectation that Hampton would in fact substantiate the exculpation on the stand, and even less so in Hampton’s ability to overcome the impact of the 11-page statement incriminating appellant.

We are confirmed in this conclusion by the fact that at the hearing the trial court successfully impeached, or at least discredited, Hampton as to the exculpatory letter and as to his possible motives in writing it. There was also some reference to an alleged exculpatory statement he made to two persons who drove Hampton to Alabama to escape capture, but under the trial court’s examination this proved to be so vague and equivocal that such evidence would have added more, rather than less, uncertainty to whether he had made such a statement and whether it could be proven on the stand.

We conclude that under the standards set in Brogdon v. State, supra and cases cited, it cannot be said that in the totality of the circumstances, trial counsel was deficient in professional judgment in not calling Hampton to exculpate appellant in any fashion. Even beyond this factor, we conclude that had counsel done differently there is no reasonable probability the outcome of the proceedings would have been different. The jury found appellant guilty upon the evidence before it and we see nothing so favorable or positive in the alleged exculpations that would have overcome the certain detailed incrimination in his 11-page taped statement to the police.

2. It follows that, while we think best caution on this issue of effectiveness of counsel would have encouraged trial counsel to at least interview Hampton prior to trial, we conclude from the exculpatory letter and what was seen at the hearing that such an interview would not have altered the decision not to call him; but if it had, and if counsel had called Hampton and introduced the “exculpatory” evidence, his judgment in doing so might well have been criticized as flawed, under the totality of all the circumstances in this case. See Brogdon, supra.

Decided July 10, 1989

Rehearing denied July 31, 1989

Gammon & Anderson, W. Wright Gammon, Jr., T. Peter O’Callaghan, Jr. for appellant.

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

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A89A0684.
    STROZIER v. SIMMONS U. S. A. CORPORATION et al.
    (385 SE2d 677)
   Beasley, Judge.

As a result of an injury he received at work while operating a baling machine on July 3, 1985, Strozier brought an action against several defendants, including Simmons U. S. A. Corporation and Simmons Manufacturing Company, Inc. The remaining defendants are not involved in this appeal.

The baling machine was owned by Simmons Manufacturing and operated at its plant. After Strozier’s injury, Simmons U. S. A. filed a workers’ compensation claim on his behalf and obtained benefits for him. When the two Simmons companies answered Strozier’s complaint they admitted that he was employed by Simmons U. S. A. only and not by Simmons Manufacturing. In the latter portion of the answer the defendants reiterated that they admitted Strozier was employed solely by Simmons U. S. A. and denied that he was employed by any other defendant. The same theme was carried forward in a statement of material facts by defendants wherein it was set forth that Simmons U. S. A. was the employer of Strozier and his injury was covered by workers’ compensation. The first motion for summary judgment, which was later withdrawn, also relied upon the fact that Simmons U. S. A. was Strozier’s employer.

Subsequently the answer was amended to set out a new theory of defense, that defendants were joint venturers and joint employers of Strozier. Their second motion for summary judgment contended that they therefore both enjoyed workers’ compensation immunity. In support of this contention affidavits and documents were presented that showed the two corporations to be virtually inseparable, Simmons U. S. A. being the administrative arm and Simmons Manufacturing being the operating branch of an interlocking entity. It was also shown that the two merged in 1986. From the proof offered Simmons U. S. A. kept the records and paid Strozier’s salary; Simmons Manufacturing, beside owning the machine and building where Strozier worked, also sent Strozier his W-2 tax form which indicated that he was its employee.

After a hearing the trial court granted summary judgment to defendant Simmons U. S. A., the successor corporation of the two defendants. It found that through a corporate linear arrangement they were both wholly owned subsidiaries of Gulf & Western; that the majority of their officers was the same; that they each conducted corporate meetings at the same time and location; that the two corporations merged in 1986; that Simmons U. S. A. handled the payroll and other administrative services, while Simmons Manufacturing issued W-2 tax forms to Strozier and owned the factory where he worked and the machine which injured him. The court further found that Strozier denied he worked for a joint venture and there was no joint venture agreement offered into evidence although there was a memorandum which outlined the corporate reorganization of the two companies. The court concluded as a matter of law that the corporations were engaged in a joint venture and an action against them was barred by the exclusive remedy provisions of workers’ compensation law, citing Seckinger & Co. v. Foreman, 252 Ga. 540 (314 SE2d 891) (1984), and Boatman v. George Hyman Constr. Co., 157 Ga. App. 120 (276 SE2d 272) (1981).

Strozier appeals and contends that the evidence did not demand a finding in favor of the defendants and further that the admissions made by defendants were alone sufficient to prevent the grant of summary judgment.

First of all, considering only the proof offered in support of defendants’ motion for summary judgment, there is a serious question whether the evidence demands judgment in their favor. The evidence tends to show that either one or the other corporation was Strozier’s employer but not necessarily both. For instance, the W-2 form listed Simmons Manufacturing as employer and made no mention of Simmons U. S. A.; likewise as regards a monthly pension roll listing Simmons Manufacturer’s employees. On the other hand, the workers’ compensation claim form listed Simmons USA/Gulf & Western as employer and Strozier’s pay check contained only the name Simmons U. S. A. as payor. In such circumstances can it be said there was no genuine issue of material fact?

Be that as it may, the statements contained in defendants’ initial pleadings are controlling. OCGA § 24-3-30 provides that a party may avail himself of allegations contained in the other party’s pleadings without the necessity of offering them into evidence. See Wood v. Isom, 68 Ga. 417 (1) (1882); East Tenn. &c. R. v. Kane, 92 Ga. 187 (5) (18 SE 18) (1893). In fact, a party to a suit will not even be allowed to disprove an admission made in his pleadings without first withdrawing it from the record. Greene v. Gulf Oil Corp., 119 Ga. App. 87, 89 (2) (166 SE2d 626) (1969). Where the pleading has been stricken, the admission contained therein remains to be utilized as evidence of fact which the admitting party can explain but may be unable to conclusively refute. Lawson v. Duke Oil Co., 155 Ga. App. 363, 364 (270 SE2d 898) (1980); Gentile v. Miller, Stevenson & Steinichen, 257 Ga. 583 (361 SE2d 383) (1987).

Defendants never expressly withdrew the admissions contained in their pleadings, which means they were bound by the admissions. State Hwy. Dept. v. Lumpkin, 222 Ga. 727, 728 (152 SE2d 557) (1966). Even if the amendment to their answer impliedly withdrew the admissions, they would still be faced with them as evidence. The argument that the proof submitted by defendants pierced the pleadings so as to impose upon Strozier, as the party opposing the motion, the burden to come forth with evidence to the contrary [Wilson v. Nichols, 253 Ga. 84 (316 SE2d 752) (1984)] simply misconstrues what the admissions constitute. They are not merely pleadings but evidence refuting the assertion based upon offered proof by defendants that they were a joint enterprise. Shirley v. Long, 167 Ga. App. 545 (307 SE2d 506) (1983); Richmond County v. Sibert, 218 Ga. 209, 212 (126 SE2d 761) (1962); Lawson, supra.

Vital is the concept that defendants, having admitted to the contrary, could not establish as a matter of law that the admission was untrue, but only could raise an issue of fact for a jury to determine. This rests upon the same principle applied to contradictory testimony by a party as set forth in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986). The court determines as an issue of law whether the conflicting testimony of the party is explained. If not then the unfavorable version prevails, but if so, then that only allows the credibility issue to reach a jury for decision because a genuine issue of material fact remains. Gentile, supra.

It was error to grant summary judgment to defendant Simmons U. S. A.

Judgment reversed.

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

On Motion for Rehearing.

Movant Simmons U.S.A. contends that we failed to follow Southern Guaranty Ins. Co. of Ga. v. Jeffares, 190 Ga. App. 449, 451 (3) (379 SE2d 167) (1989), which determined that summary judgment could be granted in favor of a party whose contradictory testimony was satisfactorily explained. Gentile v. Miller, Stevenson & Steinichen, 257 Ga. 583 (361 SE2d 383) (1987) [cited in the opinion], an earlier decision of the Supreme Court reversing 182 Ga. App. 690, held that “the reasonable explanation merely permits the favorable portion of the contradictory testimony to remain as evidence to be considered; the reasonable explanation does not operate to eliminate the adverse unfavorable testimony so as to establish any fact authorizing the grant of summary judgment. The reasonable explanation does not act to exclude the existence of an issue of fact, if such is raised by the party’s contradictory statements themselves, or by other evidence.” (Emphasis in original.)

Decided June 23, 1989

Rehearing denied July 31, 1989

Weiner, Dwyer, Yancey & Machín, J. Matthew Dwyer, Jr., Beryl H. Weiner, John D. Stone, Thomas C. Dempsey, for appellant.

Neely & Player, Randall M. Davis, Leigh M. Smith, for appel-lees.

Insofar as any rule expressed in Southern Guaranty conflicts with Gentile, it must yield. 1983 Ga. Constitution, Art. VI, Sec. VI, Par. VI.

Rehearing denied.

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


author: Benham, Judge. Beasley, Judge,

text:
    A89A0704.
    SMITH v. THE STATE.
    (386 SE2d 370)
   Benham, Judge.

This appeal is from the trial court’s denial of appellant’s motion for discharge and acquittal. Appellant filed his demand for trial under OCGA § 17-7-170 on March 24, 1988, during the March term of court. A jury was impaneled (April 4-6) during the March term, after his demand, and appellant was not tried during that term. Nor was he tried during the next succeeding term (May term) in which a jury was impaneled (May 2-4). “[W]here demand is made and two terms of court expire, .at both of which juries are impaneled and qualified to try the defendant, then discharge and acquittal must follow. [Cits.]” Bush v. State, 152 Ga. App. 598, 599 (263 SE2d 499) (1979). “[T]he defendant’s discharge takes place by operation of law.” Thornton v. State, 7 Ga. App. 752, 753 (1) (67 SE 1055) (1910). (Emphasis supplied.) “[N]o motion to acquit is necessary, but the discharge of the accused results automatically, by operation of law. . . .” Bishop v. State, 11 Ga. App. 296, 297 (75 SE 165) (1912). (Emphasis supplied.) Thus, appellant was automatically discharged at the close of the May term. Therefore, since appellant was automatically discharged at the close of the May term, the State’s reliance on appellant’s September term purported waiver of his demand for trial is misplaced.

The dissent is based on the proposition that appellant waived his demand for speedy trial by filing a motion to suppress. However, the quote from State v. Waters, 170 Ga. App. 505 (3) (317 SE2d 614) (1984), on which the dissent is based omits a crucial portion of the ruling in Waters. A more complete reading of the sentence is as follows: “[B]y filing a motion to suppress, a defendant effectively consents to a delay of his trial pending final resolution of the issue of evidentiary admissibility, if the motion is granted and the State elects to have that appellate determination made.” Id. It is readily apparent from reading that language that there is no waiver unless the motion is granted and the State elects to appeal. In Waters, the motion was granted and the State appealed; in the present case, the motion was not even heard. Appellant did nothing to delay bringing his case to trial and the record is devoid of any waiver by him of his demand for trial.

The trial court’s denial of appellant’s motion for discharge and acquittal was error.

Judgment reversed.

Carley, C. J., Been, P. J., Banke, P. J., Birdsong, Sognier and Pope, JJ., concur. McMurray, P. J., concurs in judgment only. Beasley, J., dissents.

Beasley, Judge,

dissenting.

When defendant filed his demand for trial under OCGA § 17-7-170 he also filed a motion to suppress evidence. “[B]y filing a motion to suppress, a defendant effectively consents to a delay of his trial pending final resolution of the issue of evidentiary admissibility. . . .” State v. Waters, 170 Ga. App. 505, 508 (3) (317 SE2d 614) (1984). He cannot say he is both ready for trial and not ready for trial at the same time. By calling for a pretrial hearing, he “waived his right to trial during that term,” in the words of Wilson v. State, 181 Ga. App. 337, 338 (1) (352 SE2d 189) (1986).

He clearly stood on the motion, and on his motion for a Jackson v. Benno hearing if there were any statements, until the motions were set for hearing. Stipulated into the record is a September 9 letter from defendant’s counsel to the solicitor, which states that “it will not be necessary to hear the motions in the above-referenced cases [including defendant’s]. Please feel free to excuse your witnesses.” By filing the motion he, in the words of Thornton v. State, 7 Ga. App. 752 (67 SE 1055) (1910), “affirmatively show[ed] an intention not to insist upon his demand.” When the case was called in court for motions on September 12, the State announced ready and defense counsel announced that his client was available but he was withdrawing his motions. No objection was registered by defendant when the case was then declared by the judge as ready for trial.

Decided July 14, 1989

Rehearing denied July 31, 1989

Lane & Tucker, Alan D. Tucker, for appellant.

Richard H. Taylor, Solicitor, for appellee.

Defendant moved for discharge and acquittal in the next term, in December. This was premature, even if the demand was extant. The first time defendant was ready for trial was in the September term, when he abandoned his motions. December was in the second term in which jurors were impaneled and qualified. Discharge results by operation of law only “provided . . . [inter alia], the failure to try is not due to the voluntary absence of the accused, or to some other conduct on the part of himself or his counsel.” Here is an instance of the latter, at least up until the September term.

This is the result even if it is assumed that the demand was extant. But it was not, as it had been withdrawn. Written by the chief deputy clerk along the side margin of defendant’s pleading containing the demand is the following notation: “9/12/88 Motion Withdrawn by Atty. Tucker — Judge Adams Dismissed Motion Declared ready for Trial.” In the absence of a transcript, the clerk certified that at the Preliminary and Motion Calendar for September 12, counsel “announced . . . that he was withdrawing his motions.”

Thus, whether the demand was valid to begin with because it was filed along with delaying action, or whether it was valid but tolled until defendant stood ready for trial, or whether it was withdrawn on September 12, in any event defendant was not entitled to discharge and acquittal on December 6 under OCGA § 17-7-170.


author: Benham, Judge. Deen, Presiding Judge, Beasley, Judge,

text:
    A89A0703.
    LUSHER v. THE STATE.
    (386 SE2d 364)
   Benham, Judge.

This appeal is from the trial court’s denial of appellant’s motion for discharge and acquittal, brought pursuant to OCGA § 17-7-170 (b).

Appellant was issued traffic citations for driving under the influence and failing to have proof of insurance on April 23, 1988. On May 9, 1988, an accusation charging appellant with driving under the influence in violation of OCGA § 40-6-391 (a) (4) was filed by the Solicitor of Glynn County in the state court. During a court appearance on May 19, 1988, appellant filed a document in which he referred to OCGA § 17-7-170 and demanded that his case be tried “in this term or the next succeeding term of Court.” On December 12, 1988, appellant filed a motion for discharge and acquittal pursuant to OCGA § 17-7-170 (b), which motion the trial court denied. This direct appeal followed. See Hubbard v. State, 254 Ga. 694 (333 SE2d 827) (1985); Smith v. State, 169 Ga. App. 251 (1) (312 SE2d 375) (1983).

“Any person against whom ... an accusation is filed with the clerk for [a non-capital offense] may enter- a demand for trial at the court term at which the . . . accusation is filed or at the next succeeding regular court term thereafter. . . . [T]he demand for trial shall be served on the prosecutor and shall be binding only in the court in which the demand is filed. ... If the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the . . . accusation. For purposes of computing the term at which a misdemeanor must be tried under this Code section, there shall be excluded any civil term of court in a county in which civil and criminal terms of court are designated; and for purposes of this Code section it shall be as if such civil term was not held.” OCGA § 17-7-170.

In support of his motion for discharge, appellant submitted the affidavit of the Clerk of the State Court of Glynn County who averred that the state court has six two-month terms of court, (January, March, May, July, September, and November) and that criminal juries were impaneled in 1988 during the January, March, May and September terms. In a supplemental statement, the clerk certified that juries were impaneled on the following dates: May 2-4, 1988 (May term); October 3-6, 1988 (September term); and December 5-9, 1988 (November term). The terms of court commence on the first Monday of every other month. Ga. L. 1981, p. 3359, Sec. 5.

We address initially the timeliness of appellant’s motion for discharge and acquittal. While appellant’s demand was filed during the May term of court, the provisions of OCGA § 17-7-170 were not triggered until the September term because no jury was impaneled to try appellant during that portion of the May term that followed his demand, and no jury was impaneled during the July term. See Waller v. State, 251 Ga. 124 (3) (303 SE2d 437) (1983), rev’d on other grounds, 467 U. S. 39 (104 SC 2210, 81 LE2d 31) (1984); State v. McDonald, 242 Ga. 487 (249 SE2d 212) (1978); Dempsey v. State, 156 Ga. App. 806 (275 SE2d 671) (1980). Appellant was not tried in either the September or November terms, and at both terms juries were impaneled. The clerk’s averment that criminal juries were impaneled during the May and September terms, thereby implying that the jury impaneled December 5-9 was not a criminal jury, does not cause us to exclude the November term as a civil term of court in computing the term at which appellant had to have been tried. See OCGA § 17-7-170. There is no evidence in the record that terms of court for the State Court of Glynn County have been designated as civil and criminal, and the legislation involving the State Court of Glynn County (from the Establishing Act of 1943 to the present) has not designated civil and criminal terms of court. In fact, Section 1 of the Act amending the Act that created the State Court of Glynn County (Ga. L. 1973, p. 2570) makes it clear that no distinction exists between the panels of jurors chosen for civil and criminal trials in Glynn County. The legislation states, “All cases and issues to be tried by jury at said trial session, whether civil or criminal, shall be tried by a jury stricken from said panel.” We therefore conclude that the jury impaneled in the November term, whether or not it heard only civil cases, was a jury impaneled and qualified to try appellant. See Huckeba v. State, 157 Ga. App. 795, 798 (278 SE2d 703) (1981). Therefore, while appellant’s demand was filed in the May term, it was not effective until the September term, and both the September and November terms passed without appellant having been tried, despite juries having been impaneled during both terms.

The State maintains the trial court was correct in denying appellant’s motion for discharge and acquittal because appellant’s demand was never spread upon the minutes and because it was not filed at a time when a jury was impaneled and qualified to try him. Contrary to the State’s belief, appellant had no duty to spread his demand on the minutes. Appellant had only to file his demand and serve it on the prosecutor. OCGA § 17-7-170 (a). “ ‘If the jury demand be made, it is the right of the accused to have it spread upon the minutes and the duty of the clerk to do it.’ [Cit.]” Pless v. State, 157 Ga. App. 681 (278 SE2d 475) (1981). (Emphasis supplied.) In addition, the State has misconstrued OCGA § 17-7-170, which only requires that during the court terms there be juries impaneled and qualified to try a defendant; it does not require such a jury the moment appellant files his demand for trial. The certificate of the court clerk, to the effect that juries were impaneled during the September and November terms of court, belies the State’s assertion that no jury was impaneled when appellant’s motion was filed.

While not arguing the issue, the State also points out facts that it contends lead to the conclusion that appellant waived his demand for trial. “A waiver of the demand would result. . . from any . . . act on [the defendant’s] part showing affirmatively that he consented to passing the case until a subsequent term.” Walker v. State, 89 Ga. 482 (15 SE 553) (1892).

This court has held that the filing of a motion challenging the array of jurors constitutes a consent to delay (Wilson v. State, 181 Ga. App. 337 (352 SE2d 189) (1986)), as does filing a motion to suppress, the grant of which is appealed by the State (State v. McNeil, 176 Ga. App. 323 (335 SE2d 728) (1985)), and filing a motion for continuance (Claypool v. State, 188 Ga. App. 642 (3) (373 SE2d 765) (1988)). Where there is no precedential case law to guide the determination of waiver and no clear oral statement of waiver on the record, only a statement as clear as that required in making the demand should constitute a waiver. See State v. Adamczyk, 162 Ga. App. 288 (290 SE2d 149) (1982).

Apparently relying upon a letter dated September 9, 1988, from appellant’s counsel to the solicitor, advising him that it “would not be necessary to hear the motions” in appellant’s case and the unsigned notation of “motion withdrawn 9-13-88” on the accusation, the State seems to argue that appellant waived his demand for trial by withdrawing his “motion.” By setting forth this argument, the State equates a demand for trial with a motion. However, a motion is “[a]n application to the court for an order” (OCGA § 9-11-7 (b) (1)), while a demand, be it for a copy of the indictment or accusation, or a list of witnesses (OCGA § 17-7-110); for oral and written custodial statements (OCGA § 17-7-210); for scientific reports (OCGA § 17-7-211); or for a trial (OCGA § 17-7-170), is addressed to the State. Through a demand or request, a defendant seeks that to which he is statutorily entitled. A motion (to suppress, for a Jackson-Denno hearing, for a protective order) seeks a judicial ruling concerning that to which a defendant is statutorily entitled. Appellant’s letter concerned motions and the unsigned notation on the accusation concerned a motion. A demand for trial is not a motion and therefore is not the subject of either the letter or the notation. In all likelihood, the letter and notation referred to appellant’s motion for a Jackson-Denno hearing on the voluntariness of his in-custody statements and his motion to suppress based on alleged non-compliance with OCGA § 40-5-55.

Inasmuch as appellant made his OCGA § 17-7-170 demand and did not withdraw it; the court clerk has certified that juries were impaneled during the September and November terms of court; and appellant was not tried during the September or November term, appellant was entitled to discharge and acquittal pursuant to OCGA § 17-7-170 (b).

Judgment reversed.

Carley, C. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier and Pope, JJ., concur. Deen, P. J., concurs specially. Beasley, J., dissents.

Deen, Presiding Judge,

concurring specially.

Except for the proposition that only a statement of waiver as clear as that required in making a demand for trial shall constitute a waiver, I concur with the majority opinion. I note further that the trial court apparently denied the motion for discharge and acquittal on the grounds that the appellant had not complied with the OCGA § 17-7-170 requirements of placing the demand on the minutes and filing the demand when there were juries impaneled and qualified to try him; there was no mention of any waiver of the demand. In this regard, there would seem to be no need to generate an issue of waiver, where neither the state nor the trial court below was concerned about it.

Decided July 13, 1989

Rehearing denied July 31, 1989

Lane & Tucker, Alan D. Tucker, for appellant.

Richard H. Taylor, Solicitor, for appellee.

Beasley, Judge,

dissenting.

I respectfully dissent, for the same reason of waiver explained in Smith v. State, 192 Ga. App. 604 (_ SE2d —) (1989). The clerk certified by supplemental record that motions were set for hearing in Lusher’s case on September 13. The State announced ready and defense counsel announced that his client was available but that he was withdrawing his motions. He had notified the solicitor of this by the letter of September 9 referred to in the Smith case.


text:
    A89A0970.
    LaROUCHE v. THE STATE.
    (386 SE2d 367)
   Benham, Judge.

This appeal is from the trial court’s denial of appellant’s motion for discharge and acquittal, brought pursuant to OCGA § 17-7-170 (b).

On April 20, 1988, accusations were filed by the Solicitor of Glynn County in the state court charging appellant with simple battery and public drunkenness. Appellant filed a demand for trial pursuant to OCGA § 17-7-170 on May 26, 1988, and delivered a copy to the prosecutor. On January 10, 1989, appellant filed a motion for discharge and acquittal pursuant to OCGA § 17-7-170 (b), which motion the trial court denied. This direct appeal followed. Hubbard v. State, 254 Ga. 694 (333 SE2d 827) (1985); Smith v. State, 169 Ga. App. 251 (1) (312 SE2d 375) (1983).

“Any person against whom ... an accusation is filed with the clerk for [a non-capital offense] may enter a demand for trial at the court term at which the . . . accusation is filed or at the next succeeding regular court term thereafter. . . . [T]he demand for trial shall be served on the prosecutor and shall be binding only in the court in which the demand is filed. ... If the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the . . . accusation. For purposes of computing the term at which a misdemeanor must be tried under this Code section, there shall be excluded any civil term of court in a county in which civil and criminal terms of court are designated; and for purpose of this Code section it shall be as if such civil term was not held.” OCGA § 17-7-170.

In support of his motion for discharge, appellant submitted the affidavit of the Clerk of the State Court of Glynn County, who averred that the state court had six two-month terms of court in 1988 (January, March, May, July, September, November) and that criminal juries were impaneled during the January, March, May, September, and November terms of court. The terms of court commenced on the first Monday of every other month. Ga. L. 1981, p. 3359, Sec. 5. In a supplemental statement, the clerk certified that following the date of appellant’s demand, juries were impaneled on the following dates: October 3-6, 1988 (September term); December 5-9, 1988 (November term); and January 9-12, 1989 (January term).

We address initially the timeliness of appellant’s motion for discharge and acquittal. While appellant’s demand was filed during the May term of court, the provisions of OCGA § 17-7-170 were not triggered until the September term because no jury was impaneled to try appellant during that portion of the May term that followed his demand, and no jury was impaneled during the July term. See Waller v. State, 251 Ga. 124 (3) (303 SE2d 437) (1983), rev’d on other grounds, 467 U. S. 39 (104 SC 2210, 81 LE2d 31) (1984); State v. McDonald, 242 Ga. 487 (249 SE2d 212) (1978); Dempsey v. State, 156 Ga. App. 806 (275 SE2d 671) (1980). Appellant was not tried in either the September or November terms, and at both terms juries were impaneled. Therefore, while appellant’s demand was filed in the May term, it was not effective until the September term, and both the September and November terms passed without appellant having been tried, despite juries having been impaneled during both terms.

The State maintains the trial court was correct in denying appellant’s motion for discharge and acquittal because appellant’s demand was never spread upon the minutes and because it was not filed at a time when a jury was impaneled and qualified to try him. Contrary to the State’s belief, appellant had no duty to spread his demand on the minutes. Appellant had only to file his demand and serve it on the prosecutor. OCGA § 17-7-170 (a). “ ‘If the jury demand be made, it is the right of the accused to have it spread upon the minutes and the duty of the clerk to do it.’ [Cit.]” Pless v. State, 157 Ga. App. 681 (278 SE2d 475) (1981). (Emphasis supplied.) In addition, the State has misconstrued OCGA § 17-7-170, which only requires that during the court terms there be juries impaneled and qualified to try a defendant; it does not require such a jury the moment appellant files his demand for trial. The affidavit of the court clerk, to the effect that juries were impaneled during the September and November terms of court, belies the State’s assertion that no jury was impaneled when appellant’s motion was filed.

While not arguing the issue, the State also points out facts that it contends lead to the conclusion that appellant waived his demand for trial. “A waiver of the demand would result. . . from any . . . act on [the defendant’s] part showing affirmatively that he consented to passing the case until a subsequent term.” Walker v. State, 89 Ga. 482 (15 SE 553) (1892).

This court has held that the filing of a motion challenging the array of jurors constitutes a consent to delay (Wilson v. State, 181 Ga. App. 337 (352 SE2d 189) (1986)), as does filing a motion to suppress, the grant of which is appealed by the State (State v. McNeil, 176 Ga. App. 323 (335 SE2d 728) (1985)), and filing a motion for continuance (Claypool v. State, 188 Ga. App. 642 (3) (373 SE2d 765) (1988)). Where there is no precedential case law to guide the determination of waiver and no clear oral statement of waiver on the record, only a statement as clear as that required in making the demand should constitute a waiver. See State v. Adamczyk 162 Ga. App. 288 (290 SE2d 149) (1982).

Apparently relying upon a letter dated September 9, 1988, from appellant’s counsel to the solicitor advising him that it “would not be necessary to hear the motions” in appellant’s case and the unsigned notation of “motion withdrawn 9-14-88” on the accusation, the State seems to argue that appellant waived his demand for trial by withdrawing his “motion.” By setting forth this argument, the State equates a demand for trial with a motion. However, a motion is “[a]n application to the court for an order” (OCGA § 9-11-7 (b) (1)), while a demand, be it for a copy of the indictment or accusation, or a list of witnesses (OCGA § 17-7-110); oral and written custodial statements (OCGA § 17-7-210); scientific reports (OCGA § 17-7-211); or for a trial (OCGA § 17-7-170), are addressed to the State. Through a demand or request, a defendant seeks that to which he is statutorily entitled. A motion (to suppress, for a Jackson-Denno hearing, for a protective order) seeks a judicial ruling concerning that to which a defendant is statutorily entitled. Appellant’s letter concerned motions and the unsigned notation on the accusation concerned a motion. A demand for trial is not a motion and therefore is not the subject of either the letter or the notation. In all likelihood, the letter and notation referred to appellant’s motion for a Jackson-Denno hearing on the voluntariness of his in-custody statements and his notice of intent to raise a defense of insanity or mental incompetence, the latter a prerequisite to judicial determination of the necessity of a mental examination, a non-jury hearing, or a special jury determination of the issue. See Rule 31.4 of the Uniform Rules of the State Courts. In the case at bar, the unknown notator shared the same belief, marking “motion withdrawn 9-14-88” on the notice of intent to raise the insanity defense.

Decided July 13, 1989

Rehearing denied July 31, 1989

Lane & Tucker, Robert L. Crowe, for appellant.

Richard H. Taylor, Solicitor, for appellee.

Inasmuch as appellant made his OCGA § 17-7-170 demand and did not withdraw it; the court clerk has sworn that juries were impaneled during the September and November terms of court; and appellant was not tried during either of those terms, appellant was entitled to discharge and acquittal pursuant to OCGA § 17-7-170 (b).

Judgment reversed.

Carley, C. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier and Pope, JJ., concur. Deen, P. J., concurs specially. Beasley, J., dissents.

Deen, Presiding Judge,

concurring specially.

I concur specially for the reasons stated in my special concurrence in Lusher v. State, 192 Ga. App. 606 (_ SE2d _) (1989).

Beasley, Judge,

dissenting.

I respectfully dissent for the same reason of waiver explained in Smith v. State, 192 Ga. App. 604 (_ SE2d _) (1989). The clerk certified by supplemental record that motions were set for hearing on September 14 and that they were withdrawn, as is further indicated on the front of the accusations and on the notice of intent to raise insanity. The letter of September 9 quoted in Smith also referred to LaRouche’s pending case.


author: McMurray, Presiding Judge. Pope, Judge, Beasley, Judge,

text:
    A89A0706.
    STRICKLAND v. THE STATE.
    (386 SE2d 165)
   McMurray, Presiding Judge.

Defendant appeals following the denial of his motion for acquittal pursuant to OCGA § 17-7-170.

Defendant was accused of criminal trespass. The accusation was filed in the State Court of Glynn County on April 26, 1988. On May 27, 1988, defendant filed a document entitled “Statutory and Constitutional Rights.” Therein, defendant demanded a jury trial and urged that he “be tried in this term or the next succeeding term of court.” In so doing, defendant made specific reference to OCGA § 17-7-170.

Defendant was arraigned on June 9, 1988. He waived formal arraignment and pleaded not guilty.

Thereafter, on December 16, 1988, defendant moved for acquittal pursuant to OCGA § 17-7-170. The motion was accompanied by the affidavit of the Clerk of the State Court of Glynn County. The Clerk averred: “The State Court of Glynn County has six terms of Court each year. Each term lasts for two months. January, March, May, July, September, and November are the respective terms. For the year 1988 the State Court of Glynn County has had criminal juries impaneled during the January, March, May, September and November terms and has had non jury criminal terms during the January, March and May terms.” In a supplemental affidavit, the Clerk also averred that juries were impaneled during April 4-6, 1988 (March 1988 Term), May 2-4, 1988 (May 1988 Term), October 3-6, 1988 (September 1988 Term), and December 5-9, 1988 (November 1988 Term).

The trial court denied defendant’s motion “because of the Defendant’s failure to comply with the provisions of OCGA § 17-7-170.” Held:

Defendant’s statutory demand for trial was made on May 27, 1988 (which was after the dates May 2-4, 1988, when juries were impaneled). Because no juries were impaneled on or after that date during the May term, the demand did not at that time trigger the running of time specified in OCGA § 17-7-170 (b). State v. McDonald, 242 Ga. 487 (249 SE2d 212). DeKrasner v. State, 54 Ga. App. 41 (1) (187 SE 402). Jurors were not impaneled during the July term so the demand was not triggered at that time either. A jury was impaneled during the September term, from October 3-6, 1988. Thus, the State could have complied with defendant’s demand during the September term and the statute was triggered at that time. A jury was impaneled during the next succeeding court term — the November term. That jury met from December 5 until December 9. However, defendant was not brought to trial during the time that jury was impaneled and qualified. Compare Kersey v. State, 191 Ga. App. 847 (383 SE2d 348). Thus, when defendant moved for acquittal on December 16, 1988, two succeeding terms of jury panels had come and gone and defendant had not yet been tried. It follows that the trial court erred in failing to grant defendant’s motion for acquittal. Adams v. State, 65 Ga. 516; State v. Prestia, 183 Ga. App. 24 (357 SE2d 829). See LaRouche v. State, 192 Ga. App. 610 (— SE2d —).

The State contends that defendant’s motion for acquittal was denied properly because defendant sought a bench trial when he was arraigned. In this regard, the State points out that bench trials were not being held during the court terms following defendant’s arraignment. This contention misses the mark. The statute provides that defendant is to be discharged and acquitted if he is not tried during the term the demand is made or the next succeeding term provided that “at both court terms there were juries impaneled and qualified to try him.” (Emphasis supplied.) OCGA § 17-7-170. Whether or not defendant sought a bench trial when he was arraigned is immaterial. Pursuant to the statute, acquittal depends on the availability of a jury (and, logically, the court sitting without a jury) to try defendant.

Judgment reversed.

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

Pope, Judge,

dissenting.

I concur with Judge Beasley’s dissent. However, I think it essential to point out that the provisions of OCGA § 17-7-170 apply to both jury and bench trials, even though the triggering device embodied in the statute is tied to the availability of juries. In this case, the State was prepared to try Strickland at a bench trial, apparently in reliance on a request for trial by the judge made by Strickland at his June arraignment, within the time allowed by OCGA § 17-7-170. The confusion arises in this case because the record is unclear whether Strickland later demanded trial by jury, and, if so, what the trial court could have done within the time remaining in the term to comply with that demand.

Beasley, Judge,

dissenting.

I respectfully dissent, as no error is shown.

During the second term, defendant’s case was called for trial on the nonjury calendar, which commenced after the jury calendar. There is some evidence in the record that he had earlier asked for a bench trial, which explains his case having been scheduled on the nonjury calendar. Defendant contends that when he moved for acquittal at the time his case was called for bench trial, he had demanded a jury trial. Since he could demand a jury even after having announced that a bench trial would suffice, he would be entitled to acquittal if the court did not provide a jury trial in the November term, which was not yet concluded.

If the jurors had already been discharged for the term, the court would not be able to provide a jury trial. See DeKrasner v. State, 54 Ga. App. 41 (1) (187 SE 402) (1936). But if the jurors were subject to recall, defendant would not be entitled to acquittal because the second term had not yet concluded without his being tried. See Bryning v. State, 86 Ga. App. 35 (5) (70 SE2d 779) (1952).

Decided July 13, 1989

Rehearing denied July 26, 1989

Lane & Tucker, Alan D. Tucker, for appellant.

Richard H. Taylor, Solicitor, for appellee.

The record does not reflect whether he in fact demanded a jury trial when the case was called on the bench calendar on December 16, and it does not reflect that the court was unable to provide a jury trial during the remaining weeks of that term. All it reflects is that the court denied the motion for acquittal. Without more, we cannot conclude that the trial court erred as a matter of law, as it appears that the motion was premature.

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


author: Birdsong, Judge. Deen, Presiding Judge,

text:
    A89A0985.
    EDMUNDS v. COWAN.
    (386 SE2d 39)
   Birdsong, Judge.

This is an appeal by plaintiff Derek Edmunds (Edmunds) from the grant of summary judgment to defendant, Edmund G. Cowan, Sr., (Cowan) on Edmunds’ claim against Cowan arising from the shooting of Edmunds by Edmund G. Cowan, Jr. (Jerry), another defendant. Jerry shot Edmunds, a Gwinnett County Police Sergeant, while Ed-munds was apprehending Jerry for attempting to steal a car. Jerry pleaded guilty to shooting Edmunds and was sentenced to 50 years confinement for that and other offenses arising from the incident.

Edmunds sued both Jerry and Cowan to recover his lost wages, medical expenses, and damages for pain and suffering. The allegations against Jerry are based upon his direct actions of shooting Edmunds. The allegation against Cowan is based on his “negligence in permitting [Jerry], a convicted felon, who resided in the household, to have access to a dangerous instrumentality . . . the .22 caliber revolver.”

After answering the Complaint and conducting discovery, Cowan moved for summary judgment alleging that he had no actual knowledge of his son’s dangerous propensities, he had no legal responsibility for Jerry’s acts based merely upon parenthood, the pistol was not entrusted to Jerry by Cowan, and there was an unforeseeable intervening act between Cowan’s actions and the shooting. The trial court agreed with Cowan’s contentions and granted summary judgment to him.

Some months before the shooting, Jerry had been twice convicte of breaking and entering into a business and had also been convicted of carrying a concealed weapon, another .22 caliber pistol. When Jerry was released from prison in October 1986, he was on probation and returned to live in his parents’ home. As a convicted felon Jerry was prohibited by law from possessing a pistol. Nevertheless, Cowan purchased the .22 caliber pistol in November 1986 for his own use, and after that bought a holster and a trigger lock for the pistol for safety reasons. A trigger lock is attached to the pistol over the trigger. In place it keeps the trigger from operating, and, hence, the pistol from firing. The trigger lock can be removed only with keys that Cowan kept on his person, or, as in this instance, with great difficulty by someone using a power drill. After an initial supply of ammunition was used up shortly after the purchase, Cowan kept no ammunition for the pistol in his home. The pistol was on a shelf in a closet in Cowan’s bedroom. The closet and the bedroom were not locked.

Jerry knew about the pistol and knew where it was kept, and although Cowan did not tell or show Jerry where it was kept, Cowan admits that he was aware that Jerry knew where he kept the pistol. Also, shortly after he purchased the pistol, Cowan showed the pistol to Jerry, and according to Cowan’s deposition testimony, let Jerry handle the pistol. Although Jerry stated that he “stole” the pistol from where his father kept it, there is no evidence of record that Cowan instructed Jerry not to take or use the pistol. Indeed, Jerry never used the pistol until the day he took it, drilled off the trigger lock with his power drill, purchased ammunition for the pistol, and put the pistol under his car seat. Jerry admits that he took the pistol without permission from his father or mother: he “stole the gun.” Further, Cowan did not know his pistol was gone until after Jerry shot Edmunds with it.

On the day of the shooting Jerry and some friends spent their time drinking beer and riding around. In the process they decided to steal a car from an apartment complex. That night they went to the apartments and were stealing the car when the police arrived.

Although ordered to get out of the car and freeze, Jerry pulled his pistol and shot Edmunds. The bullet penetrated Edmunds’ chest, severely wounding him. Edmunds was out of work for over three months, incurring substantial lost wages and medical expenses.

After the grant of summary judgment, this appeal followed. Held:

1. Appellee Cowan correctly asserts that he cannot be held liable for Jerry’s tortious acts merely because he is Jerry’s father, Hulsey v. Hightower, 44 Ga. App. 455 (161 SE 664), and that he may not be found liable to Edmunds under the theory of negligent entrustment unless there was an entrustment and Cowan had actual knowledge of Jerry’s dangerous propensities. Bonney Motor Express v. Yates, 171 Ga. App. 754 (320 SE2d 844); Brown v. Sheffield, 121 Ga. App. 383 (173 SE2d 891).

Pretermitting whether the facts here would support an entrustment and actual knowledge, the case against Cowan is based on neither parenthood nor negligent entrustment. The Complaint states a claim against Cowan based upon his negligence in allowing Jerry to have access to the pistol. Cowan had a duty to exercise ordinary care in storing the pistol. Blackwell v. Cantrell, 169 Ga. App. 795, 797 (315 SE2d 29). Moreover, this court held in Tolbert v. Tanner, 180 Ga. App. 441, 444 (349 SE2d 463), that summary judgment was improperly granted defendants who failed to conclusively refute the plaintiff’s allegations that they negligently allowed the tortfeasor access to an unloaded pistol. Accordingly, there is no support for Cowan’s position that negligent access alone will not support a claim against him.

2. As a defendant moving for summary judgment, Cowan must establish that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). He has the burden of piercing Edmunds’ pleadings by affirmatively negating at least one of the essential elements of the complaint, Corbitt v. Harris, 182 Ga. App. 81 (354 SE2d 637), and establishing that, as a matter of law, Edmunds cannot recover under any theory fairly drawn from the pleadings and evidence. Reed v. Adventist Health Systems &c., 181 Ga. App. 750, 752 (353 SE2d 523). Cowan’s arguments have been based on the contentions that access to the pistol or parenthood will not support the cause of action, that there was no negligent en-trustment, that Cowan could not foresee that Jerry would shoot Officer Edmunds, and that Cowan’s precautions as a matter of law were not negligence. Division 1, above, of course, disposes of the access alone argument, as well as the parenthood and entrustment contentions.

Considering the foreseeability issue, while one is not generally required to anticipate criminal acts, this rule does not apply if Cowan had reasonable grounds to believe that a criminal act would be committed. Nalle v. Quality Inn, 183 Ga. App. 119, 120 (358 SE2d 281). The test is not whether Cowan must have foreseen that Jerry would take the pistol and shoot Edmunds. It is sufficient that with ordinary prudence Cowan might have foreseen that Jerry would take the pistol and commit an act with generally injurious consequences. Burdine v. Linquist, 177 Ga. App. 545, 547 (340 SE2d 198); Bell v. Adams, 111 Ga. App. 819, 821 (143 SE2d 413). Because of Jerry’s two prior criminal convictions for breaking and entering and one for possession of a concealed .22 caliber pistol, it cannot be said that there was no evidence that Jerry might take the pistol and use it as he did.

Since Edmunds as the respondent to a motion for summary judgment is entitled to all reasonable inferences and all reasonable doubt from the evidence, and to have the evidence construed in his favor McNish v. Gilbert, 184 Ga. App. 234 (361 SE2d 231), and against Cowan, Jonesboro Tool &c. Corp. v. Ga. Power Co., 158 Ga. App. 755 (282 SE2d 211), we cannot say conclusively that Jerry’s shooting of Edmunds was unforeseeable as a matter of law. Consequently, a jury issue exists on this question, and Cowan has not carried his burden as the movant for summary judgment. Corbitt, supra; Reed, supra.

3. Regarding Cowan’s argument that the precautions he took were not negligence as a matter of law, the general rule is that issues of negligence and causation are not appropriate for summary adjudication, Smith v. Southeastern &c. Ins. Co., 258 Ga. 15, 16 (365 SE2d 105), unless the movant can demonstrate plainly and palpably that he did not contribute to the proximate cause of the injury, Ryder Truck Rental v. Carter, 189 Ga. App. 43, 44 (374 SE2d 830), and that reasonable minds could not disagree. North v. Toco Hills, 160 Ga. App. 116, 119 (286 SE2d 346). Considering the evidence of Jerry’s criminal propensities, including possession of a concealed weapon, it cannot be said with certainty that the facts conclusively show that Cowan’s actions were not negligent, and that he was not at fault. Fort v. Boone, 166 Ga. App. 290, 292 (304 SE2d 465). Accordingly, material issues of fact remain which must be decided by a jury and, thus, summary judgment was improperly granted to Cowan. Tallman Pools of Ga. v. James, 181 Ga. App. 341, 342 (352 SE2d 179). This determination, however, should not be construed as authority for the proposition that appellant’s evidence would, had it been offered at trial, necessarily be sufficient to withstand a motion for a directed verdict. Winn-Dixie v. Ramey, 186 Ga. App. 257, 258 (366 SE2d 785); see also Whelchel v. Laing Properties, 190 Ga. App. 182 (378 SE2d 478) (physical precedent).

The dissent argues that this case is controlled by Jackson v. Moore, 190 Ga. App. 329 (378 SE2d 726), and a different result is required. To the contrary, we find that Jackson v. Moore, supra, is distinguishable in several significant respects, and therefore does not demand a different result.

First, the son in Jackson had never been convicted of an offense involving illegal use of an automobile. Here, of course, Jerry had been convicted of carrying a concealed .22 caliber pistol, a firearm almost identical to the one Cowan later purchased and with which Jerry later shot Edmunds. Second, the mother in Jackson had specifically instructed her son not to use the car. The record in this case reflects no such prohibition, and, in fact, Cowan, shortly after he purchased the pistol and not long after Jerry had been released from prison, showed the pistol to Jerry and let him hold it. Third, car keys are obviously different from pistols. Neither the son in Jackson nor Jerry was prohibited by law from possessing car keys, but Jerry was prohibited from possessing a firearm. Further, it is the public policy of this state that possession of firearms by convicted felons generally presents a threat to the safety of the citizens of the state. OCGA § 16-11-131. Pistols, even when unloaded, can be considered dangerous weapons, e.g., Daughtry v. State, 180 Ga. App. 711, 712 (350 SE2d 53). Moreover, even in negligence cases, it has long been recognized that firearms are treated differently: “Where the instrumentality in question is a firearm or other explosive, liability is frequently imposed upon an offending parent, or at the least a jury question as to such liability arises. [Cits.]” Hill v. Morrison, 160 Ga. App. 151 (286 SE2d 467). Even though this case is not based upon parental liability, the underlying concept remains valid.

Thus, when Cowan, with knowledge of Jerry’s earlier conviction for carrying a concealed .22 caliber pistol and two offenses involving theft, buys a .22 caliber pistol, and shows it to Jerry and permits him to hold it, we find that a jury issue is presented on whether it was foreseeable that Jerry would take the pistol and use it in a manner injurious to others. Further, we find also that whether Cowan’s attempts to safeguard the pistol were sufficient to relieve him of liability are not relevant to the question of foreseeability. That presupposes a finding that Jerry’s actions were foreseeable, and in any event, we have found that the question of Cowan’s negligence is not appropriate for summary judgment in this case. Ryder Truck Rental v. Carter, supra; Fort v. Boone, supra; North v. Toco Hills, supra. Moreover, the dissent’s analysis of Cowan’s action appears to be weighing the evidence to determine whether Cowan was negligent as a factual matter, rather than testing whether such actions were negligent as a matter of law.

Accordingly, the grant of summary judgment to Cowan was error and must be reversed.

Judgment reversed.

Carley, C. J., McMurray, P. J., Banke, P. J., Pope and Beasley, JJ., concur. Deen, P. J., Sognier and Ben-ham, JJ., dissent.

Deen, Presiding Judge,

dissenting.

I must respectfully dissent, because I believe that the trial court properly granted summary judgment for the appellee.

Both parties rely upon the recent case of Jackson v. Moore, 190 Ga. App. 329 (378 SE2d 726) (1989), in which a 16-year-old child stol his mother’s car keys from her purse while she took a shower, drov the car, and injured the plaintiff in a collision. In Jackson, becaus the child took the car without permission, and because the mother although aware of her son’s previous juvenile record of burglary shoplifting and conspiracy to commit theft, had no knowledge of th child’s driving, this court found that the defendant mother was insu lated from liability for her son’s mischief and entitled to summar judgment.

Decided July 11, 1989

Rehearing denied July 31, 1989

Wetzel, Shaw & Quinn, Michael L. Wetzel, for appellant.

Drew, Eckl & Farnham, M. Gino Brogdon, Arthur H. Glaser, Jeffrey R. Joyce, for appellee.

Jackson does appear to control the instant case, and in favor of the appellee. If anything, the facts of this case are more strongly in the appellee’s favor than were the facts in Jackson for the defendant parent. The appellee here, in not having any bullets, installing a trigger lock and keeping the keys himself, and in not revealing where he stored the gun, certainly took more measures to prevent mischief than did the mother in Jackson. (To match this, the Jackson mother perhaps would have had to install a steering wheel lock and keep the fuel tank empty, or the child would have had to “hot wire” the car.) It took two affirmative criminal acts for the appellee’s son to use the pistol, i.e., theft and criminal damage to property. The appellee also had no knowledge of any prior assaultive behavior by his son.

If the defendant parent in Jackson was entitled to summary judgment, so was the appellee parent in this case. If the child in these types of cases had been convicted of concealing a knife, would the parents who placed a lock on the kitchen drawer containing knives be liable? I think not. If the child in Jackson had previously stolen and driven their car and hit someone or, in the instant case, stolen the pistol and shot someone, or, in the illustration given, had stolen a knife and stabbed someone, a different rule of responsibility and result would obtain.

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


author: Deen, Presiding Judge. Beasley, Judge, Birdsong, Judge,

text:
    A89A1057.
    WALTER v. ORKIN EXTERMINATING COMPANY, INC. et al.
    (385 SE2d 725)
   Deen, Presiding Judge.

This is an appeal from the final order of the trial court denying summary judgment to the appellant and dismissing her complaint.

Appellant entered a contract for the fumigation of her house by the appellee Orkin Exterminating Company (Orkin). Appellant left her house in the care and temporary possession of Orkin so that fumigation by “vikane,” a nonflammable gas, could be accomplished. Fumigation commenced and the next morning when Orkin personnel arrived at the site, they discovered appellant’s home had burned down. Appellant brought suit on both tort by negligence and breach of contract theories. Held:

1. Appellant asserts that the trial court erred by dismissing her complaint averment of breach of contract.

Pest control fumigation is an inherently dangerous activity. Accordingly, administrative rules and regulations implementing pest control safety statutes provide for certain safety measures to be taken to protect the public during such a process.

OCGA § 43-45-8 (1) pertinently provides that the State Structural Pest Control Commission is authorized and required to “[m]ake such reasonable rules and regulations as may be necessary to protect the interest, health, and safety of the public and to ensure the efficiency of licensees, operators, and registered employees to carry out this chapter.” Pursuant to this statutory obligation, the Commission has duly promulgated certain rules governing structural pest control. See generally Official Compilation of Rules & Regulations of the State of Ga., Rules of Ga. Structural Pest Control Comm., Chapters 620-1 through 620-10.

Rule 620-8-.02 (1) establishes the following pertinent notification requirements: “The Licensee shall notify the Enforcement Agency [Georgia Department of Agriculture] and the local fire and police departments having jurisdiction, before performing fumigation of any residential or commercial building or other potentially habitable structure. . . .”

Rule 620-8-.04 (1) (c) requires that the operator-in-charge shall: “[m]ake a final inspection before releasing the fumigant and personally confirm that all preparations have been completed, including: ... 2. [t]hat all open flames, pilot lights or oil lamps have been appropriately extinguished. ... 6. [t]hat a capable, alert watchman is present at the fumigation site to prevent entry of any unauthorized person until the exposure period has elapsed. . . .”

The rules promulgated by the State Structural Pest Control Commission pursuant to the general power vested in the Commission under OCGA § 43-45-8 constitute a body of binding administrative law pertaining to all fumigation, as that term is defined in Rules 620-8-.01. It is well-established that “ ‘[t]he laws which exist at the time and place of the making of a contract, enter into and form a part of it’ [cits.]; and the parties must be presumed to have contracted with reference to such laws and their effect on the subject matter. . . .” (Emphasis supplied.) McKie v. McKie, 213 Ga. 582 (2) (100 SE2d 580); Busbee v. Ga. &c. Univ. Professors, 235 Ga. 752 (2) (221 SE2d 437); Freeman v. Decatur Loan &c. Corp., 140 Ga. App. 682 (3) (231 SE2d 409); EGL, Contracts § 6. Accordingly, we find that the above rules were part and parcel of any fumigation contract entered between the appellant and appellee Orkin. In this case, had appellees strictly complied with these rules, regardless of the original purpose for which they were promulgated, it reasonably appears that the degree of damages sustained by appellant could have been reduced, although not totally prevented. In any event, a genuine issue of material fact exists as to whether certain provisions of the aforementioned rules have been complied with by the appellees.

Compensatory damages may be awarded as a result of breach of contract. OCGA § 13-6-1. However, damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and as the parties contemplated, when the contract was made, as the probable result of its breach. OCGA § 13-6-2. Moreover, remote or consequential damages are not recoverable unless they can be traced solely to the breach of the contract or unless they are capable of exact computation and are independent of any collateral enterprise entered into in contemplation of the contract. OCGA § 13-6-8; National Consultants v. Burt, 186 Ga. App. 27, 36 (366 SE2d 344), writ vacated, 258 Ga. 645 (374 SE2d 532); EGL, Damages § 14. OCGA § 13-6-2 (Code Ann. § 20-1407) “provides for damages not only ‘such as arise naturally and according to the usual course of things from such breach’ but also ‘such as the parties contemplated, when the contract was made, as the probable result of its breach.’ ” (Emphasis supplied.) Lindgren v. Dowis, 236 Ga. 278 (5) (223 SE2d 682); Cobb & Eldridge, Ga. Law of Damages (2d ed.) § 2-4. “In contract actions, damages which may reasonably be considered to be in the contemplation of the parties are recoverable. This is distinguished from the tort situation where the consequences which naturally and proximately follow the wrongful act need not have been contemplated by the parties.” (Emphasis supplied.) Cobb & Eldridge, supra at p. 24, n. 3. Usually, the question of what matters reasonably may be said to have been in the contemplation of the parties when the contract was made is one of fact for jury determination. Based on the record now before us, we find that the trial court erred in dismissing the breach of contract averment and its prayer for compensatory damages.

2. Appellant contends it was error to dismiss her claim for negligence in that the doctrine of the res ipsa loquitur established her prima facie case of negligence.

The elements of the res ipsa loquitur doctrine are: “ ‘(1) injury of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.’ ” Simonds v. Conair Corp., 185 Ga. App. 664 (3) (365 SE2d 507); Johnson v. Dallas Glass Co., 183 Ga. App. 584, 585 (359 SE2d 448). Further, “[t]he accident must also be ‘of a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence.’ ” Housing Auth. &c. v. Famble, 170 Ga. App. 509, 525 (317 SE2d 853). Moreover, “ ‘(r)es ipsa loquitur should be applied with caution and only in extreme cases; ... it is not applicable when there is an intermediary cause which produced or could produce the injury, or where there is direct unambiguous testimony as to the absence of negligence by the defendant, or where there is no fair inference that the defendant was negligent.’ ” Id. at 526. In this case, appellant’s house was destroyed by fire. There is evidence that a portion of the structure included a log cabin over 100 years old. There is also some evidence that a gas line to a stove could have been severed by someone moving the stove; there exists no evidence that Orkin personnel moved the stove, and the stove was under the exclusive control and ownership of appellant before Orkin personnel took over the premises to begin fumigation procedures. Considering these factors, together with all other evidence of record, we are satisfied that even under the more relaxed test of Sams v. Gay, 161 Ga. App. 31 (2) (288 SE2d 822) and Smith v. Telecable &c., 142 Ga. App. 535, 536 (236 SE2d 523), the evidence in this case does not afford “a rational basis for concluding that the house would not have burned in the absence of negligence and that the [appellees were] responsible for any negligence which may in fact have occurred.” (Emphasis supplied.) Sams, supra at 34. Moreover, the evidence before us falls short of meeting the standard of Famble, supra at 526, that “[b]efore res ipsa loquitur is applicable, the act must speak not only of negligence, but of negligence on the part of the defendant.”

Accordingly, we are satisfied that the trial court did not err as asserted in the above enumeration.

3. The appellant also asserts that the trial court erred in dismissing that portion of her complaint grounded on her claim of negligence per se.

In determining whether the violation of a statute, or ordinance, is negligence per se as to a particular person, it is necessary to examine the purposes of the legislation and decide “ ‘ “(1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm it was intended to guard against.” ’ ” See West v. Mache of Cochran, 187 Ga. App. 365, 367 (370 SE2d 169); Lively v. Trust, 184 Ga. App. 361, 362 (361 SE2d 516). To prevail on a negligence per se claim, a causal relation be tween the violation of the statutory duty and the injuries sustaine thereby must be shown. Central Anesthesia Assoc. v. Worthy, 254 Ga. 728, 730 (333 SE2d 829).

In the instant case, there is no question that the appellant fel within the class of protected persons, and it seems fairly clear tha the risk of fire was one of the harms guarded against by the pertinent regulation, else the requirement of notifying the local fire department would make little sense. Concerning the necessity of showing a causal connection between the violation of the regulation and the injuries sustained, the appellant submitted the affidavit of the fire chief, who stated that “the fire at the Myrtice Walter residence would have been brought under control easier and there would have been less damage to the Myrtice Walter property if the Union County Fire Department had been notified sooner of the fire.” Presumably, had the appellees posted a watchman as required, the fire department would have been notified sooner. This evidence sufficed to create a jury question on the issue of damages in the negligence per se claim, and the trial court erred in dismissing the appellant’s complaint on that claim.

Judgment reversed.

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

Beasley, Judge,

concurring specially.

I fully concur in Divisions 1 and 2. Because of the dissent’s interpretation of Division 3, I must explain my concurrence in that division. The majority acknowledges that plaintiff must show a causal connection between the breach of a legal duty and the damages complained of but then points to the fire chief’s affidavit as evidence related to the amount of damages. That does not address the proximate cause element of the alleged tort. The fire chiefs affidavit provides some evidence that the defendants’ failure to post a watchman was a contributing cause of the extent of the damages sustained. Since mo-vant failed to show conclusively that its acts or omissions while it was in custody and control of the premises were not a proximate cause of the injuries suffered by plaintiff as a result of the fire, it was not entitled to dismissal of plaintiff’s complaint.

Birdsong, Judge,

concurring in part and dissenting in part.

I fully concur with Divisions 1 and 2 of the majority opinion. However, I am compelled to dissent to Division 3.

1. Negligence per se provides only two of the four elements required to sustain a cause of action based on a negligence tort, that is duty and breach thereof. In order to prevail, plaintiff must still establish the elements of causation and damages. See generally Central Anesthesia Assoc. v. Worthy, 254 Ga. 728, 730 (333 SE2d 829); Whelchel v. Laing Properties, 190 Ga. App. 182, 185 (378 SE2d 478). Unlike my learned colleagues, I do not believe that causation has been established in this case. There exists not one shred of evidence in this record that any act or omission of Orkin or its agents was the proximate cause of the starting of the fire on this premises (a part of which is shown to have been built over 100 years ago). Nor is there any evidence in this record to establish that Orkin, who was using a nonflammable, flame-retardant gas to fumigate the premises, was a joint tortfeasor. Thus, clearly the evidence of record creates no genuine issue of proximate cause for jury resolution.

It is a “ ‘well settled principle of negligence law that the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence.’ ” Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200, 202 (345 SE2d 904); Franklin v. Elmer, 174 Ga. App. 839, 842 (332 SE2d 314). Moreover, for reasons stated by the majority in Division 2 of its opinion, appellant is not entitled to avail herself of the principle of res ipsa loquitur in this instance to supply the necessary inference to overcome the lack of proof of causation.

The majority apparently, however, finds a sufficient showing of causation solely in the fire chief’s affidavit. I do not. First, the affidavit fails to establish that failure to notify the fire department of the contemplated fumigation was the cause of appellant’s injury, that is, the fire. Moreover, the affidavit in effect establishes that if the fire department had received earlier notification of the existence of a fire, such notification at best would have allowed the fire to be controlled easier to some unstated degree; thereby, in the fire chief’s opinion, resulting in some unspecified lesser amount of damage. It is well established in this state that the causal connection required is between the defendant’s conduct and the plaintiff’s injury. See generally International Brotherhood &c. v. Briscoe, 143 Ga. App. 417, 429 (7) (239 SE2d 38); accord Locke v. Vonalt, 189 Ga. App. 783 (7) (377 SE2d 696); Brandvain v. Ridgeview Institute, 188 Ga. App. 106, 115 (3) (b) (372 SE2d 265). It seems to me that the majority has required that only a genuine issue exists as to damages, and has ignored the element of causation of injury in reaching its conclusion that a jury question arises as to Orkin’s liability based on a theory of negligence per se.

I am seriously concerned that the majority today has in effect established precedent expanding the doctrine of negligence per se in this state. In particular, as I interpret the majority opinion, negligence per se now establishes three of the required elements of a tort based on negligence, that is, duty, breach, and causation; henceforth, plaintiff to prevail under such a cause of action needs only establish that the defendant in some manner, no matter how remote, caused or contributed to the causation of some degree of defendant’s damages. This in my view is contrary to the established tort law of this state.

2. Additionally, I am not persuaded by the majority’s threshold conclusion that “the requirement of notifying the local fire department would make little sense” unless it is construed to have been promulgated with the intent of guarding against the risk of fire. This bare conclusion flies in the face of both the implementing regulations when examined in toto and the nature of the fumigation process itself. OCGA § 43-45-8 (1) on its face shows that the general purpose for requiring the promulgation of rules and regulations by the State Structural Pest Control Commission primarily was to “protect the interest, health, and safety of the public.” This statute does not make any reference to the specific type of regulatory requirements needed, but leaves that matter to the sound expertise and discretion of the Commission. “ ‘(A) statute must be construed with reference to the whole system of which it is a part. . . .’ ” Allison v. Domain, 158 Ga. App. 542, 544 (281 SE2d 299). Likewise, “[i]n the interpretation of a statute the courts must look diligently for the intention of the General Assembly. [Cit.] This is the cardinal rule in the construction of statutes. . . . The construction must square with common sense and sound reasoning.” (Emphasis supplied.) Blalock v. State, 166 Ga. 465, 470 (143 SE 426). These same rules apply in the construction of administrative regulations promulgated in implementation of statute. Cross v. Balkcom, 102 Ga. App. 81, 83 (115 SE2d 783), reversed on other grounds, 216 Ga. 530 (118 SE2d 185); see Risser v. Thomasville, 248 Ga. 866 (286 SE2d 727) (applying rules governing the construction of statutory enactments to an ordinance).

Applying these rules, I find that the purpose for requiring modification of the fire department was not to prevent fires on the premises, but rather to alert them to the location and time of the dangerous fumigation process so that they could timely respond with proper emergency rescue equipment if someone accidentally was to become contaminated by the lethal gas during fumigation. This interpretation is supported by the very words of the Commission’s rules which expressly require the presence of a watchman “to prevent entry of any unauthorized person until the exposure period has elapsed. . . .” Further, this interpretation is the one which best squares with “common sense and sound reasoning.” Vikane not only is nonflammable; it is flame retardant. There exists no danger of a fire being caused by Vikane. Further, the record establishes that the fumigation process does not pose a reasonable risk of fire, but that the lethality of the gas used during fumigation does pose a real threat to human life. Certainly, the Commission can be expected to have used its knowledge and expertise as to the fumigation process when crafting its rules. Thus, common sense and sound reasoning compel the conclusion, in addition to the express words contained within the rules, that the rules were designed to protect the public against the clear possibility of accidental exposure to the fumigant and not against any perceived danger of exposure to fire. Therefore, I believe that the majority has erroneously concluded that the appellant falls within the class of persons the rules actually intended to protect.

Decided July 14, 1989

Rehearings denied July 31, 1989

Stone & Williams, Wesley Williams, McKenzie & McPhail, Michael A. McKenzie, Jefferson C. McConnaughey, for appellant.

Decker & Hallman, Richard P. Decker, W. Winston Briggs, for appellees.

I respectfully dissent.


author: Banke, Presiding Judge.

text:
    A89A1102.
    JOHNSON v. HOSPITAL CORPORATION OF AMERICA et al.
    (385 SE2d 731)
   Banke, Presiding Judge.

Johnson appeals from an order of the trial court dismissing his prior appeal to this court due to an unreasonable and inexcusable delay in filing the transcript. See generally OCGA § 5-6-48 (c).

On May 25, 1988, the appellant filed a medical malpractice action against the appellees herein, Hospital Corporation of America (HCA), Fairview Park Hospital and Henry George Stelling, M.D. The complaint, which was filed within 10 days of the expiration of the statute of limitation, was not accompanied by the supporting expert affidavit required by OCGA § 9-11-9.1 (Ga. L. 1987, p. 887, § 3). Acknowledging the absence of the required affidavit, the appellant stated in his pleadings that he “reserve[d] the right to amend his complaint to include the affidavit of his expert witness.”

Appellees Stelling and Fairview Park moved to dismiss the complaint based on the absence of the affidavit. Those motions were ultimately granted by the trial court on August 26, 1988, even though the appellant filed the required affidavit in the interim. In addition, summary judgment was sought by appellees Stelling and HCA, but those motions were not ruled on.

On September 20, 1988, the appellant filed a timely notice of appeal from the dismissal order of August 26th. On December 13, 1988, all three appellees moved to dismiss the appeal based on the appellant’s failure either to cause a transcript of the proceedings to be filed within 30 days or to obtain an extension of time for filing the transcript, in accordance with OCGA § 5-6-42. The transcript was finally filed on December 18, 1988. The record reflects that on January 6, 1989, Stelling’s counsel filed a suggestion of death stating that Stel-ling had died on December 26, 1988. However, the record does not reflect that any successor was substituted for Stelling pursuant to OCGA § 9-11-25 (a). On January 13, 1989, the trial court entered an order dismissing the appeal based on a finding that there had been an unreasonable and inexcusable delay by the appellant in filing the transcript. The present appeal followed. Held:

Decided July 14, 1989

Rehearing denied July 31, 1989

Roosevelt Warren, for appellant.

Anderson, Walker & Reichert, Mallory C. Atkinson, Jr., R. Harold McCard, Jr., Joseph J. Chambless, for appellees.

“[In] a case involving multiple parties or multiple claims, a decision adjudicating fewer than all the claims or the rights and liabilities of less than all the parties is not a final judgment. ... In such circumstances, there must be an express determination under OCGA § 9-11-54 (b) . . . or there must be compliance with the [interlocutory appeal] requirements of OCGA § 5-6-34 (b). . . . Where neither of these code sections are followed . . ., the appeal is premature and must be dismissed. [Cits.]” Spivey v. Rogers, 167 Ga. App. 729 (307 SE2d 677) (1983). See generally OCGA § 5-6-34 (a) (1).

Since no motion to dismiss the complaint was brought on behalf of appellee HCA, the trial court’s order of August 26, 1988, did not have the effect of dismissing the action with respect to that defendant. Thus the dismissal order did not constitute a final judgment within the contemplation of OCGA § 5-6-34 (a) (1) and was not immediately appealable as a matter of right. It follows that any error committed by the trial court in dismissing the appeal pursuant to OCGA § 5-6-48 (c) must be considered harmless.

Judgment affirmed.

Sognier and Pope, JJ., concur.