text:
    A89A1192.
    HOOKER et al. v. HEADLEY.
    (385 SE2d 732)
   Banke, Presiding Judge.

The appellants sued to recover for the loss of their mother due to alleged medical malpractice on the part of Dr. William Headley and the Baldwin County Hospital Authority. The case is before us on appeal from the grant of Dr. Headley’s motion for summary judgment.

The decedent died following the performance of an elective surgical procedure known as a gastroplasty, the purpose of which was to relieve her obesity. It is apparent without dispute from the record that the decedent was considered a high-risk candidate for surgery due to various medical problems from which she suffered. According to Dr. Headley’s clinical notes, the surgery took about an hour and was completely uneventful. The decedent was thereafter brought to the recovery room, where she “responded normally” during three hours of observation. Dr. Headley stated in his notes that “because of the intensive care [unit] being full and because the patient was doing extremely well, it was decided that [she] would be transferred back to her room.” The appellant was returned to her room at about noon and continued to do well until shortly after 6:00 p.m., when she suffered respiratory arrest and lapsed into a coma. She died the following day after being removed from life-support equipment.

In support of his motion for summary judgment, Dr. Headley submitted his own affidavit averring that he had at all times during his treatment of the decedent exercised “that degree of care, skill and diligence ordinarily exercised by the medical profession generally under similar conditions and like surrounding circumstances. . . .” The appellants responded with the affidavit of Dr. Jack E. Birge, who averred that, based on his review of the hospital records attached to the affidavit, he was of the opinion that, due to her medical problems, the decedent was not an appropriate candidate for surgery “except in a dire emergency as a matter of life and death.” Dr, Birge further averred that “this patient certainly should have been cared for by admission to the intensive care unit . . . after surgery,” and he attributed her death to her not having received “immediate and constant supervision” following the surgery. Held:

We must agree with the appellee that Dr. Birge’s averment that the decedent was not an appropriate candidate for surgery was insufficient to establish any basis upon which the appellee could be held liable for her death, inasmuch as it is apparent without dispute from the record that the decedent was informed prior to the surgery that she was a high-risk patient and that she nevertheless expressed her willingness and desire to go forward with the surgery, stating that “she did not feel she could go on the way she had been going.” The appellee cannot be held accountable for the appellant’s exercise of her own independent judgment under such circumstances. Accord Sikorski v. Bell, 167 Ga. App. 803, 805 (307 SE2d 701) (1983). However, Dr. Birge’s opinion that the decedent should have been kept in the intensive care unit rather than being returned to her hospital room following the surgery is another matter. Dr. Birge prefaced his opinion in this regard by stating that, based on his review of the hospital records, he had “reached the opinion and conclusion that in connection with the treatment and surgery of [the decedent], [the defendants] did not use or exercise the degree of care and skill employed by the medical profession in general under the same or similar circumstances and that these defendants were negligent in their treatment of [the decedent].” It is thus apparent that the witness was not merely stating what he himself would have done differently but was stating what he considered to be the parameters of acceptable professional conduct under the circumstances. Compare Slack v. Moorhead, 152 Ga. App. 68 (262 SE2d 186) (1979); Sikorski v. Bell, supra, 167 Ga. App. at 805. It is further apparent that Dr. Birge was of the opinion that the decedent had died as a direct result of the appellee’s failure to adhere to this standard of care. See generally Jackson v. Gershon, 251 Ga. 577 (308 SE2d 164) (1983). Compare Beauchamp v. Wallace, 180 Ga. App. 554 (349 SE2d 791) (1986); Minchey v. Zane, 188 Ga. App. 733 (374 SE2d 225) (1988). We accordingly hold that Dr. Birge’s affidavit was sufficient to create a material factual dispute on the issues of negligence and proximate cause, with the result that the trial court erred in granting the appellee’s motion for summary judgment.

Decided July 14, 1989

Rehearing denied July 31, 1989.

Richard B. Thornton, for appellants.

Jones, Cork & Miller, Carr G. Dodson, Bradley J. Survant, Long, Weinberg, Ansley & Wheeler, Suzanne M. Trexler, for appellee.

Judgment reversed.

Sognier and Pope, JJ., concur.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A89A1219.
    RUFF v. CENTRAL STATE HOSPITAL.
    (385 SE2d 734)
   Banke, Presiding Judge.

The appellant brings this appeal from an order directing his continued hospitalization for involuntary treatment as a mentally ill person for a period not to exceed six months, pursuant to OCGA § 37-3-81.1 (c).

It appears both from the record and from the briefs of the parties that the appellant does not dispute that he is a “mentally ill person requiring involuntary treatment” within the contemplation of OCGA §§ 37-3-81.1 and 37-3-1 (11). The dispute is over whether he is subject to involuntary treatment as an “inpatient” pursuant to OCGA §§ 37-3-81.1 and 37-3-1 (9.1), or whether he should be treated as an “outpatient” pursuant to OCGA §§ 37-3-81.1 (3) (A) and 37-3-81.1 (12.1).

The appellant was diagnosed by his attending psychiatrist as a chronic paranoid schizophrenic with acute exacerbation, meaning that “he was functioning outside [the hospital], but relapsed.” It was shown that he had been hospitalized five times since 1983. After the first three hospitalizations, he had returned to his mother’s home to live; however, his mother is no longer willing for him to live with her. Following his fourth hospitalization, he was placed in a “supportive living” facility operated by or in conjunction with the state mental health system. He remained there for approximately a year, until he expressed a continued lack of willingness to continue taking the medication which had been prescribed to control the symptoms of his mental illness, which include visual and auditory hallucinations. His present hospitalization commenced with his voluntary admission to Central State Hospital on August 2, 1988. On August 11, 1988, he withdrew his consent to such hospitalization by signing a request for discharge. Central State thereupon instituted the present commitment proceeding against him in the Probate Court of Baldwin County. By order entered on August 31, 1988, the probate court found the appellant “met the criteria of OCGA § 37-3-81.1 requiring involuntary inpatient treatment for a period not to exceed (six (6) months) . . . from the date of this order, subject to the power of the chief medical officer to discharge the patient at any time under the power of OCGA § 37-3-85 (b).” The appellant thereupon filed an appeal to the superior court, which, following a de novo hearing, issued a final order on December 12, 1988, essentially adopting the conclusions of the probate court. This appeal followed. Held:

1. The appellant contends that the trial court’s findings of fact are inadequate in that they do not identify the specific evidence upon which the court relied in reaching its conclusions of law. However, this objection was waived by the appellant’s failure to raise it in the trial court in accordance with OCGA § 9-11-52 (c), which provides, in pertinent part, as follows: “When findings or conclusions are not made prior to judgment to the extent necessary for review, failure of the losing party to move therefor after judgment shall constitute a waiver of any ground of appeal which requires consideration thereof.”

2. The purpose of the commitment proceeding was to determine “whether the patient is a mentally ill person requiring involuntary treatment and, if so, whether the patient is an inpatient or an outpatient and . . . the type of involuntary treatment the patient should be ordered to obtain.” OCGA § 37-3-81.1 (a). As previously indicated, the appellant does not dispute that he is a “mentally ill person requiring involuntary treatment.” See generally OCGA § 37-3-1 (11,12). He does contend, however, that there was not clear and convincing evidence to support the trial court’s conclusion that he met the criteria for involuntary treatment as an “inpatient.”

The term “inpatient” is defined by OCGA § 37-3-1 (9.1) as follows: “ ‘Inpatient’ means a person who is mentally ill and: (A) (i) Who presents a substantial risk of imminent harm to that person or others, as manifested by either recent overt acts or recent expressed threats of violence which present a probability of physical injury to that person or other persons; or (ii) Who is so unable to care for that person’s own physical health and safety as to create an imminently life-endangering crisis; and (B) Who is in need of involuntary inpatient treatment.”

Although both the probate court and the superior court expressly concluded that the appellant presented “a substantial risk of imminent harm to himself or others as manifested by recent overt acts or recent expressed threats of violence which presented a probability of physical injury to himself or to other persons,” we must agree with the appellant that there was no evidence to support such a finding. However, we conclude there was clear and convincing evidence to support the court’s additional conclusion that the appellant was “so unable to care for his own physical health and safety as to create an. imminently life-endangering crisis” in the event he were discharged.

The appellant’s attending psychiatrist, Dr. Alverez, indicated that his primary concern about releasing the appellant was that he tended not to take his medication on a regular basis “when he’s outside.” Dr. Alverez stated that when the appellant failed to take his medication, “all the basic symptoms of schizophrenia [would] flare up again.” Also, he expressed the opinion that the appellant would not currently be able to function in a less restrictive environment than a hospital but “because of the illness [would always] need somebody to look after him . . ., somebody who would be able to give the medication that he needed, somebody who can check on him.”

There was no suggestion during the hearing that the appellant had any expectation of being able to earn a living upon his release; and although there was some evidence that he would be eligible for public disability benefits based on his lack of financial resources and inability to work, the testimony on this issue was to the effect that such benefits could not be expected to commence for at least three months following his release. Testifying on his own behalf at the hearing, the appellant made such statements as, “I don’t have any place to go or any place to live,” and, “[T]here isn’t anywhere I can go because I don’t have any money.” He further testified that he did not want to return to a “supportive living” facility, stating, “I would rather stay in the hospital than go to supportive living.” In addition, he confirmed Dr. Alverez’s misgivings about whether he would take his prescribed medication if he were discharged, stating “I don’t think I really need the medication.” Based on our review of the transcript, we hold that there was “clear and convincing evidence,” see OCGA § 37-3-1 (8), to support the trial court’s determination that if the appellant were discharged from the hospital, he would be so unable to care for his own physical health and safety as to create an imminently life-endangering crisis. We accordingly hold that the trial court did not err in denying the appellant’s motion for involuntary dismissal of the action pursuant to OCGA § 9-11-41 (b), nor in authorizing his continued involuntary treatment as an inpatient pursuant to OCGA § 37-3-81.1 (c).

Decided July 14, 1989

Rehearing denied July 31, 1989

Torin D. Togut, Phyllis J. Holmen, John L. Cromartie, Jr., for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, B. Patricia Downing, Assistant Attorneys General, J. Edward Hall, for appellee.

Judgment affirmed.

Sognier and Pope, JJ., concur.


author: Carley, Chief Judge. Beasley, Judge,

text:
    A89A0299.
    LITTLETON et al. v. OB-GYN ASSOCIATES OF ALBANY, P.C. et al.
    (385 SE2d 743)
   Carley, Chief Judge.

After the death of their new-born daughter, appellant-plaintiffs brought a four-count complaint against appellee-defendants. Among those counts was a claim by appellant Mrs. Littleton for mental suffering and emotional distress. After answering the complaint and following discovery, appellees OB-GYN Associates of Albany, P.C. and Dr. John S. Inman moved for partial summary judgment as to appellant Mrs. Littleton’s claim for mental suffering and emotional distress. The trial court granted the motion and appellants appeal from that order.

The cause of action asserted by appellant Mrs. Littleton to recover damages for her mental suffering and emotional distress has been recognized by the Supreme Court in the case of Smith v. Overby, 30 Ga. 241 (1860). The viability of that cause of action is unaffected by the subsequent passage of Georgia’s wrongful death statute. There is no authority for the proposition that the wrongful death statute supplanted, rather than supplemented, the existing law in this connection. To the contrary, the wrongful death statute was enacted for the very purpose of supplementing rather than supplanting existing law. The wrongful death statute “adopted and extended Lord Campbell’s act and its successors, and establish liability for wrongful death, where none existed before-, they are familiar examples of the legislative creation of new rights and duties for the prevention of homicides or for satisfying social and economic needs. . . .” (Emphasis supplied.) Western & Atlantic R. Co. v. Michael, 175 Ga. 1, 13 (165 SE 37) (1932).

Bell v. Sigal, 129 Ga. App. 249 (199 SE2d 355) (1973) is not authority for the proposition that appellant Mrs. Littleton should not be allowed to recover for her mental grief and anguish caused by the death of the child subsequent to the enactment of the wrongful death statute. Bell v. Sigal, supra, is distinguishable from the instant case. In Bell, the court emphasized that the plaintiff sought to recover “twice from the same defendant merely by denominating one action a tort and the other a breach of contract.” Bell v. Sigal, supra at 249. In the instant case, there is one suit, sounding exclusively in tort, and there is no possibility of a double recovery. Also, and significantly, unlike Bell, the evidence in this case would clearly support a finding that the “impact rule” has been satisfied. Christy Bros. Circus v. Turnage, 38 Ga. App. 581 (144 SE 680) (1928).

The trial court erred in granting summary judgment as to appellant Mrs. Littleton’s separate claim for injuries sustained by her, including her mental suffering and emotional distress. Accordingly, the trial court’s grant of partial summary judgment in favor of appellees is reversed.

Judgment reversed.

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

Beasley, Judge,

concurring specially.

I concur for the reason that the mother’s complaint in Count 4 states a cause of action separate from the others asserted. It is separate from the statutory wrongful death action for the full value of the life of the child, in which the parents are the surrogates of the child whose life was lost and who herself would be entitled to recover for the tort but cannot herself benefit from the compensation due from the tortfeasor (OCGA §§ 51-4-4; 51-4-1; 19-7-1). It is separate from the surviving parents’ action for loss of services to themselves (they do not claim the proceeds of her labor) (OCGA § 19-7-1) and for her medical and funeral expenses which they as parents were obligated to pay. It is separate from the breach of contract claim which is based on failure of consideration.

In Count 4 Linda Littleton alleges a tort against herself. In shorthand it is known as medical malpractice. She was the initial patient of the specialist in obstetrics and gynecology. Along the way the child became a patient too. The doctor owed a professional duty of care to her and not only to the child. It is alleged that the doctor violated that duty by, among other things, mismanagement of her labor, injecting her with pitocin, not performing a caesarean section surgical delivery on her, and subjecting her instead to vaginal delivery.

The breach of duty to her, combined with the breach of duty to the child, proximately caused injury to her, she claims. The most prominent injury is the mental suffering and emotional distress which she has sustained. She also incurred pecuniary loss relating to herself alone for the Valium injection given after her trip to the nursery. Georgia long ago recognized that a mother could recover for mental pain and suffering (nervous shock, fright) related to injury to her child when she herself is also a physical victim of the tort. Southern R. Co. v. Jackson, 146 Ga. 243 (91 SE 28) (1916). That element of physical harm, or at least physical impact, was found wanting in Strickland v. Hodges, 134 Ga. App. 909 (216 SE2d 706) (1975) but is present here. The same is true of Posey v. Med. Center-West, 184 Ga. App. 404 (361 SE2d 505) (1987), which is distinguished from Linda Littleton’s case because allegedly negligent medical treatment was physically imposed upon her as well as on the child.

“When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.” OCGA § 51-1-6. “Damages are given as compensation for injury; generally, such compensation is the measure of damages where an injury is of a character capable of being estimated in money. If an injury is small or the mitigating circumstances are strong, nominal damages only are given.” OCGA § 51-12-4.

There are two patients here. For the one who died, compensation for the losing of the rest of her life will be compensable under the wrongful death statute if medical malpractice as to her is proved by the parties who have the derivative right to bring the action. For the one who survived, damages for the injuries unique to her as a patient are compensable, and this would include the mental pain and suffering resulting from the unsuccessful delivery. “Where there is a physical injury or pecuniary loss, compensatory damages include recovery for accompanying ‘mental pain and suffering’ even though the tor-tious conduct complained of is merely negligent.” Westview Cemetery v. Blanchard, 234 Ga. 540, 543 (216 SE2d 776) (1975). Georgia allows recovery for such injuries in medical malpractice cases. See Fulton DeKalb Hosp. Auth. v. Graves, 252 Ga. 441, 443 (2) (314 SE2d 653) (1984); Norton v. Hamilton, 92 Ga. App. 727, 732 (89 SE2d 809) (1955). There is no reason to preclude plaintiff from proving her case in these circumstances.

There is- evidence in the record of every element of medical malpractice under OCGA § 51-1-27. As explained in Hawkins v. Greenberg, 166 Ga. App. 574, 575 (1a) (304 SE2d 922) (1983): “there are three essential elements imposing liability upon which recovery is bottomed: (1) the duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained.” In Bell v. Sigal, 129 Ga. App. 249 (199 SE2d 355) (1973), the plaintiff was not a person upon whom the alleged tort was committed. The professional duty perceived was that owed to the young boy as the patient, and the breach was improper emergency treatment to him.

Decided July 28, 1989

Rehearing denied August 14, 1989

William S. Stone, for appellants.

Watson, Spence, Lowe & Chambless, G. Stuart Watson, Dawn G. Benson, Perry, Walters & Lippett, C. Richard Langley, for appel-lees.

Porter v. Lassiter, 91 Ga. App. 712 (87 SE2d 100) (1955), does not involve the cause of action here at issue. It relates to the wrongful death claim made by a mother for her child, which was born dead at 4-Vfe months from conception, the premature birth and the death allegedly caused by an auto collision three months earlier. It was held that such a child was sufficiently in being to be recognized for wrongful death purposes. The quotation from this case in the majority opinion relates to recovery by the parent as a parent for a homicide of a child. It does not address any cause of action which the woman might have had as a patient; such was not in issue.

The wrongful death and survival statutes, which relate to physical injuries inflicted on a party other than the one in whom is created a cause of action, did not extinguish the right of action which a mother has in her own right for injury she suffered as a result of negligence in childbirth. That includes mental suffering, if it is an actual injury sustained. Smith v. Overby, 30 Ga. 241 (1860).


author: Birdsong, Judge. Carley, Chief Judge, Sognier, Judge,

text:
    A89A0591.
    DEPARTMENT OF TRANSPORTATION v. HILLSIDE MOTORS, INC.
    (385 SE2d 746)
   Birdsong, Judge.

Appellant Department of Transportation (DOT) appeals from the judgment of $30,000 entered in favor of appellee Hillside Motors, and from the denial of DOT’s motion for judgment notwithstanding the verdict or in the alternative a motion for new trial.

Appellant’s motion for judgment n.o.v. was on the sole ground that under the evidence a judgment in favor of appellant was “demanded as a matter of law.” Appellant’s alternative motion for new trial was based on the general grounds.

This appeal is from the jury award in an inverse condemnation action. A portion of Highway 247 south of Macon and a one-way frontage road parallel thereto were altered during a road widening project. The frontage road was redesigned to carry two-way traffic, and as a part of the widening of Highway 247, a traffic wall was erected between the highway and the frontage road which abutted ap-pellee’s used car business. Also as a part of the construction project, appellant closed certain maintained openings in the divider between the highway and the frontage road. One of these closed openings was almost directly across from appellee’s business, which abutted frontage road on the other side. Appellee was leasing the property, and its initial lease expired before the road widening project was completed and the traffic wall built. Appellee moved to a new business location, but also was a party to another subsequent lease of the original premises. Appellee apparently continued to use the premises to store certain of its excess cars.

The jury awarded damages for business losses suffered by appel-lee from the beginning of construction to the end of the initial lease. It found, however, that the appellee was not required to move as a result of appellant’s actions and that the appellee did not lose the value of its lease thereby. Held:

1. During oral argument and by implication in its second enumeration of error, appellant’s counsel asserted that the award of damages for business losses should be reversed on the precedent of Dept. of Transp. v. Fitzpatrick, 184 Ga. App. 249 (361 SE2d 241). Compare Housing Auth. of Atlanta v. Southern R. Co., 245 Ga. App. 229, 232 (IB) (264 SE2d 174) and Buck’s Svc. Sta. v. Dept. of Transp., 191 Ga. App. 341 (381 SE2d 516) and Dept. of Transp. v. Fitzpatrick, supra with Hillman v. Dept. of Transp., 257 Ga. 338 (359 SE2d 637) and Hendrix v. Dept. of Transp., 188 Ga. App. 429 (373 SE2d 264).

The record reveals that this issue was not adequately raised at trial. On appeal only issues properly raised before the trial court will be considered. See Long v. Marion, 257 Ga. 431 (1) (360 SE2d 255); Massengale v. Ga. Power Co., 153 Ga. App. 476 (2) (265 SE2d 830); see also American Family Life &c. Co. v. Queen, 171 Ga. App. 870 (10) (321 SE2d 750).

We are compelled, however, to make this observation regarding the dissent’s interpretation of Hillman v. Dept. of Transp., supra. Although Hillman involved an issue concerning the award of consequential damages in condemnation proceedings, the holding in Hill-man includes language arguably much broader in scope. In Hillman, the Supreme Court expressly opined “[w]e find that the only proper distinction to be made in cases of temporary takings is the same requirement in force for permanent takings.” Hillman, supra at 339. The court then applied this principle to the issue confronting it and concluded that “the consequential damages must be special to the condemnee and not be those suffered by the public in general.” Hill- man, supra. Later the court stated, “[w]hile the condemnee is not permitted to recover for the inconveniences of the construction process, the constitution requires that damages, including [but not limited to] consequential damages, be paid. The constitution does not distinguish between permanent and temporary damage.” (Emphasis supplied.) Id. p. 340. Appellee has shown evidence of business loss, as hereinafter discussed, and under Hillman all that appears to be required is that the same requirements be met for recovery in permanent taking cases. The facts, in the case sub judice, show that the damages for business losses were special to the condemnee and were not merely such damages as were suffered by the public in general. To say that a business loss that occurs over a specific period of time (as opposed to permanently) is not compensable not only defies logic but our constitution as well. However, for reasons above articulated, we need not dispose of this enumeration of error at this time.

2. Appellant asserts that the trial court erred in failing to direct a verdict or thereafter to grant judgment n.o.v. on the issue of impairment of access, because the record establishes that there was no change in access from appellee’s leasehold directly to the right-of-way.

Initially we note that appellant in its supplemental brief concedes that “the jury has awarded only temporary business losses and has made them a separate element of damages.” Further, on appeal, we must construe the evidence most strongly to support the jury verdict and the judgment. Williams v. Perry, 187 Ga. App. 586 (1) (370 SE2d 836); McLarty v. Kushner, 173 Ga. App. 432 (1) (326 SE2d 777).

The trial record, thus construed, establishes that the traffic wall was erected on July 17, 1986, and that the construction of the wall was accomplished on that day. The jury’s verdict awarded appellee $30,000 business losses — the entire amount being attributable to the period of time from the beginning of construction in September 1985 through the end of the lease expiring April 30, 1986. None of the damages was attributable to the time period occurring during the remainder of 1986. Thus, the jury clearly found in favor of DOT that no impairment of access had occurred after April 30, 1986. Based on the posture of this record, the only other possible basis on which the jury could have awarded damages for impairment of access occurring on or before April 30,1986, would be on the basis that the conduct of the utility company, during this period, constituted some form of impairment of access. To reach such a determination, however, requires that we speculate as to the jury’s conduct and intent. This we have consistently declined to do. Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (1) (378 SE2d 510); Thomas v. Clark, 188 Ga. App. 606, 608 (373 SE2d 668).

The dissent asserts, in part, that it is not possible to determine whether the jury’s award did or did not include compensation to ap-pellee for lack of access between September 1985 and April 30, 1986, for certain utility work; and, that because appellant would not be liable for such work done by the utility, the resulting error cannot be deemed harmless. We reiterate that appellant DOT has failed to show how it was prejudiced by the trial court’s ruling, or for that matter, that any error has occurred. Such error can be found only by speculating as to the jury’s intent, which we refuse to do. Moreover, assuming the verdict was ambiguous and “susceptible of two constructions, one of which would uphold it and one which would defeat it, that which would uphold it is to be applied.” Haughton v. Judsen, 116 Ga. App. 308, 310 (157 SE2d 297). Assuming arguendo that the jury’s award may have included some compensation for damages sustained as a result of relocation of utilities by a utility company, we do not agree that appellant could escape liability for such damage in this particular instance. The evidence shows that the only reason the utility work was undertaken by the utility company is because of the road work initiated by appellant DOT. It is undisputed that no such utility work would have been done, had not the public purpose work, affecting the property of appellees, been commenced by DOT. In this instance, any alleged damage sustained by the work of the telephone company was directly caused by appellant DOT. DOT planned, programmed, and commenced the highway work which compelled a relocation of certain utilities by the telephone company. Thus, the actions of appellant DOT were both the direct and proximate cause of the damages, if any, which the jury might consider flowing from the conduct of the utility company. DOT cannot escape liability for damages directly and proximately caused by its public purpose work. OCGA § 9-11-61.

3. In view of the nature of this cause of action and the competent evidence presented at trial, we are satisfied that the trial court did not err in including appellee’s requested instructions 3, 4, 5, 11 and 12 in its charge to the jury. “ ‘ “It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.”’” Hambrick v. State, 256 Ga. 688 (3) (353 SE2d 177). Examining the charge in toto, we find no error.

Appellant’s collateral assertion that the trial court compounded the above asserted error by failing to charge the jury on appellant’s request to charge 17, taken from State Hwy. Dept. v. Strickland, 213 Ga. 785, 788 (102 SE2d 3), is not persuasive. First, there was no error. Secondly, though the language used in a particular appellate decision may embody sound law, it is not always appropriate to employ such language in instructing the jury. Griffin v. State, 154 Ga. App. 261, 263 (2) (267 SE2d 867). The charge requested was that the “Department of Transportation has the right to use the entire width of the right-of-way for highway purposes when such use is necessary for the public safety.” While this charge is correct as an abstract principle of law, it was not tailored to the evidence in this case, and as requested was potentially misleading. Thus, the trial court’s refusal to grant the charge as requested was correct. Dept. of Transp. v. Freeman, 187 Ga. App. 883, 884 (371 SE2d 887).

4. Appellant asserts that the trial court erred in its instruction to the jury on the criteria for determining whether appellee’s property was unique.

Reviewing the charges in their totality, Hambrick, supra, we are satisfied that the instructions on “uniqueness” were tailored to the evidence, and as given covered adequately the applicable legal principle involved. As “[o]nly one of the three [‘uniqueness’] criteria need be satisfied in order to authorize recovery of business loss damage,” Dept. of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541, 545 (309 SE2d 816), any failure to charge on the other criteria would not constitute prejudicial error. OCGA § 9-11-61. Assuming without deciding that the charge was inappropriate, “ ‘[a]n inappropriate charge, unless harmful, is not ground for new trial.’ ” Gene Thompson Lumber Co. v. Davis Parmer Lumber, 189 Ga. App. 573 (5) (377 SE2d 15).

5. Appellant asserts the award of damages for business losses was erroneous because the alleged losses were remote and speculative, and that the trial court erred in failing to give the appellant’s request to charge 11. Requested charge 11 pertinently provides that “[i]n order for the operator of a business to recover for a loss of business, it is incumbent upon the business operator to establish . . . that the business has been successfully operated at that location at a profit. . . .”

We find Dept. of Transp. v. Vest, 160 Ga. App. 368 (1) (287 SE2d 85) distinguishable from the facts of this case. However, the giving of an identical charge was found not to constitute error in Brock v. Dept. of Transp., 151 Ga. App. 905 (2) (262 SE2d 156). Likewise, this court in Big-Bin Dispos-All v. City of Valdosta, 172 Ga. App. 746, 748 (324 SE2d 501) held that “[i]n order to recover for loss of business, an operator of the business must establish that the business was profitable prior to the condemnation.” Moreover, a refusal to give a charge is error if the charge is a correct statement of the law and applicable to the issues involved. See Durand v. Reeves, 217 Ga. 492, 495 (123 SE2d 552). Thus, the issue for this court to resolve is whether the principle expressed in Brock and Big-Bin, regarding the necessity for a claimant to establish that his business was profitable, is a correct statement of law.

Art. I, Sec. Ill, Par. I (a), Ga. Const, of 1983 provides that “Except as otherwise provided in this Paragraph, private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.” (Emphasis supplied.) Business damage clearly is one form of damage which an owner can suffer due to condemnation or inverse condemnation of property. See generally Pursley, Ga. Eminent Domain, Taking or Damaging Property, § 5-11 Business damage — general. And “when the business belongs to a separate lessee, the lessee may recover for business losses as an element of compensation separate from the value of the land whether the destruction of his business is total or merely partial, provided only that the loss is not remote or speculative.” Department of Transp. v. Dixie Hwy. Bottle Shop, 245 Ga. 314, 315 (265 SE2d 10); Pursley, supra at p. 95. In Old South, Bottle Shop v. Dept. of Transp., 175 Ga. App. 295 (2) (333 SE2d 127), this court held that “lost profits are not the only element to be considered in determining the damages resulting from the total or partial destruction of a business. On the record ... we cannot say that appellants’ witness could not connect his testimony regarding cash flow to the value of the business. Since the basis for excluding the testimony was the trial court’s reliance on an incorrect principle of law (that business losses are limited to lost profits), we find that the exclusion of the evidence was erroneous.” Compare Bennett v. Smith, 245 Ga. 725 (267 SE2d 19).

We are satisfied that the rule expressed in Old South is correct and more compatible with the plain language of Art. I, Sec. Ill, Par. I (a), Ga. Const. of 1983, than the profit requirement rules of Brock and Big-Bin. In its brief appellee observed that if the “lost profit” requirement is invoked in all cases, “marginal businesses [become] helpless victims to huge losses through a fallacy of reasoning.” This logic can be illustrated as follows. Suppose a marginal business has been operating at a monthly loss of $2,000, but after the State’s inverse condemnation action the company’s sales drop and it now is operating at a loss of $10,000 per month, no doubt exists that the owner of the business has suffered loss of business damage. The trial judge referred to this principle basically as “a right not to lose any more money.” It would be both unconscionable and contrary to the scope of protection provided by the plain language of the above cited constitutional provision to deny recovery merely because the struggling business could show no loss of profits as a condition precedent. We elect not to foster such a result and find that damages for loss of business can be awarded without a showing of loss of profit, provided the loss is not remote or speculative. To the extent that Brock, Big-Bin and predecessor or progeny cases are in conflict, they will no longer be followed.

We find that appellant’s claim that appellee has failed to introduce adequate evidence upon which the jury could base its award of damages is without merit. Appellee offered certain evidence regarding the diminishment in his volume of car sales and the cash flow reduction resulting therefrom. Appellant introduced certain of appellee’s income tax statements and cross-examined appellee thereon. We are satisfied that the jury’s verdict awarding damages for business loss is “ ‘within the range’ ” of the relevant evidence before it. See National Consultants v. Burt, 186 Ga. App. 27 (4) (366 SE2d 344), writ vacated, 258 Ga. 645 (374 SE2d 532).

Appellant’s other enumerations of error are without merit.

Judgment affirmed.

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

Carley, Chief Judge,

concurring in part and dissenting in part.

I concur fully in Divisions 3, 4 and 5 of the majority opinion. With regard to Division 1 of the majority opinion, which is the subject of the dissent, I agree with the majority’s conclusion that “this issue was not adequately raised at trial.” (Majority Opinion, p. 638) I cannot, however, agree with the remainder of Division 1 of the majority opinion implying that had the issue been properly preserved and raised on appeal, Hillman v. Dept. of Transp., 257 Ga. 338 (359 SE2d 637) (1987) would be controlling. On the contrary, had the issue been preserved, I would agree with the analysis of the dissent which concludes that there is not sufficient evidence to support an award of business losses in this case.

With particular regard to Division 5, I agree with the majority that Brock v. Dept. of Transp., 151 Ga. App. 905 (2) (262 SE2d 156) (1979) and Big-Bin Dispos-All v. City of Valdosta, 172 Ga.. App. 746, 748 (324 SE2d 501) (1984) should be overruled. Although I was the author of Brock, the majority’s analysis of the concept of business loss is persuasive, and I no longer believe that a demonstration of profitability is a condition precedent to the recovery “for business losses as an element of compensation separate from the value of the land . . . if the property is ‘unique.’ [Cits.]” Dept. of Transp. v. Dixie Hwy. Bottle Shop, 245 Ga. 314, 315 (265 SE2d 10) (1980). See also Bowers v. Fulton County, 221 Ga. 731 (146 SE2d 884) (1966); Bowers v. Fulton County, 122 Ga. App. 45, 49 (176 SE2d 219) (1970); Old South Bottle Shop v. Dept. of Transp., 175 Ga. App. 295 (333 SE2d 127) (1985).

I must, however, dissent to Division 2 of the majority opinion. The majority finds that, if it was error to fail to direct a verdict on the issue of recoverable impairment of access, the error was harmless because the jury awarded damages only for the period preceding the erection of the traffic wall. This would be the correct resolution if the erection of the traffic wall was the only basis upon which an award based upon a purported impairment of access could arguably be premised. It is not. There was evidence that, prior to the erection of the traffic wall and during the period for which the jury awarded damages, the manner in which certain telephone utility work was performed had made access to appellant’s property more difficult. Appel-lee urged that appellant was liable for the damages resulting from the interference with access occasioned by this utility work. It is not possible to determine whether the jury’s award did or did not include compensation to appellee for this utility work under the guise that it constituted an impairment of access for which appellant would be liable. If the jury’s award did include compensation on this basis, it would be error. The utility work was accomplished by the telephone company, not by appellant. Because the jury’s award may have erroneously included compensation for a purported impairment of access for which appellant would not be liable, I cannot agree that the trial court’s failure to grant a directed verdict in favor of appellant on the impairment of access issue was harmless.

I am authorized to state that Judge Sognier joins in this opinion.

Sognier, Judge,

dissenting.

I respectfully dissent from the majority’s holding in Division 1, wherein the majority acknowledges the issue of whether the award to appellee for temporary business losses was proper (conceding that appellant raises it “by implication” in its second enumeration of error) but disposes of the question by concluding that the issue was not adequately raised at trial. In my view, appellant adequately raised this issue below and we must proceed to address it.

My review of the record indicates that in its motion for new trial, appellant raised the general grounds. Because absolutely no evidence was adduced at trial to show any permanent business loss and the law in this state allows damages to be awarded only for permanent business losses, it follows that the evidence was insufficient to support a verdict awarding business loss damages. Consequently, relying on the holding in Dept. of Transp. v. Fitzpatrick, 184 Ga. App. 249, 250 (361 SE2d 241) (1987) that a motion for new trial on the general grounds was sufficient to warrant review, and indeed reversal, of this issue, it was properly raised below here and I would not avoid addressing this important and timely question.

Turning to the merits of the issue, appellee in this case sought damages for three intrusions on its property by appellant, each of which it claimed constituted a “taking”: construction of the frontage road wall; disruption caused by utility trenches on the frontage road and driveway; and dust and debris from the construction which fell on the merchandise (and customers) in appellee’s car lot. The firs two of these embrace a theory of taking by denying access, discusse in Division 2 of the majority opinion, and I disagree with the major ity’s conclusion that they were compensable. In my view, if any com-pensable loss occurred, therefore, it must have been attributable to the third intrusion — the dust and debris “fallout” over appellee’s merchandise.

It is perfectly clear, however, from the evidence presented at trial, as well as from the jury’s answer to a special verdict interrogatory that the award of damages for business losses was for the time period “from the beginning of the construction in September, 1985 through the end of [appellee’s] lease expiring April 30, 1986,” that these were temporary losses — not due to any alleged condemnation, but merely temporary inconveniences due to the construction in progress. “ ‘Damages caused by mere temporary inconvenience due to the construction of the project for which the property was taken is not a proper element for consideration in determining just and adequate compensation for condemned realty. (Cits.)’ [Cit.]” Fitzpatrick, supra at 250 (2). See also Housing Auth., Atlanta v. Southern R. Co., 245 Ga. 229, 232 (IB) (264 SE2d 174) (1980).

Nor does Hillman v. Dept. of Transp., 257 Ga. 338 (359 SE2d 637) (1987) require a different result, as argued by appellee. Notwithstanding appellee’s assertion in its brief that had the author of Fitzpatrick known about the Supreme Court’s decision in Hillman the result in Fitzpatrick would have been different, that argument was addressed squarely and decided adversely to appellee in this court’s recent decision in Buck’s Svc. Station v. Dept. of Transp., 191 Ga. App. 341 (381 SE2d 516) (1989). In an opinion authored, interestingly, by the author of Fitzpatrick, this court held that Hillman was not controlling on the issue of business losses, because Hillman relates only to consequential damages, of which business losses is not an element. Rather, “regardless of the holding in Hillman as to the recoverability of ‘temporary’ consequential damages, the holding in Housing Auth [of the City of Atlanta v. Southern R. Co., 245 Ga. 229, 232 (IB) (264 SE2d 174) (1980)] is that only ‘permanent’ business losses are recoverable as a separate element of damages. Unless and until the Supreme Court reviews and overrules its holding in Housing Auth., this court and the trial court are bound thereby, and ‘temporary’ business losses are not recoverable by the condemnee. In this case, we have no more authority to fail to follow the holding in Housing Auth. than this Court had in . . . Fitzpatrick.” Id. at 342. The Supreme Court has granted certiorari in Buck’s, and perhaps what is merely contemplated in that opinion — reversal of Housing Auth., supra — will take place. However, as the law in this state now stands, this case presents a situation no different from that presented in Buck’s, and accordingly, I would reverse the award of temporary usiness losses.

Although I disagree with the conclusion reached by the majority in Division 5 of its opinion, I would not reach that issue or the necessity of overruling Brock v. Dept. of Transp., 151 Ga. App. 905 (2) (262 SE2d 156) (1979) or Big-Bin Dispos-All v. City of Valdosta, 172 Ga. App. 746 (324 SE2d 501) (1984).

Decided July 31, 1989

Rehearing denied August 17, 1989

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Marion 0. Gordon, First Assistant Attorney General, Harrison Kohler, Deputy Attorney General, Roland F. Matson, Senior Assistant Attorney General, Beverly B. Martin, Assistant Attorney General, for appellant.

Reynolds & McArthur, Charles M. Cork III, for appellee.


author: Sognier, Judge.

text:
    A89A1051.
    McKINNON v. STREETMAN.
    (385 SE2d 691)
   Sognier, Judge.

Timothy Streetman, by next friend Cora Streetman, brought suit against Shon McKinnon, as Administrator of the Estate of Helen Ruth McKinnon, to recover damages for injuries sustained when he was mauled by a tiger at a private zoo owned by Helen McKinnon. A jury returned a verdict in favor of Streetman, which was reduced to judgment, and McKinnon appeals.

The evidence adduced at trial showed that appellee was hired by appellant’s decedent (appellant’s mother) to help on weekends with chores at the zoo, which was managed on a day to day basis by appellant. Although the evidence differed regarding the age appellee represented himself to be when hired, it is uncontroverted that at the time of the incident, approximately four or five weeks later, appellee’s actual age was fourteen years and two months old. Appellee’s duties at the zoo consisted of assisting appellant with general maintenance tasks, including washing and helping with cleaning out the cages, watering the animals, feeding bread to the monkeys, and general policing of the premises. The quality of appellee’s performance was in dispute, with appellant testifying, and appellee denying, that appellee was a poor worker who had been reprimanded often, whose work had to be corrected, and whose misdeeds included poking and harassing the animals.

On March 1, 1986, appellant instructed appellee to go behind the cages with him and assist him in mucking out the cages. A seven inch open space existed at the bottom of the back of the tiger cages, which was used both to wash out the cages and to enable the tigers to reach for their food. The testimony conflicted as to the exact nature of the chores appellee was performing when the incident occurred and as to whether appellee had provoked the tiger by approaching it closely and raising his foot to stomp the tiger’s exposed paw. However, the record is clear that as both appellant and appellee were working behind the cages, the tiger extended a paw through the opening, caught appellee’s ankle, and bit and clawed his foot and leg, causing extensive injuries. Appellant shot the tiger to extricate appellee.

1. In related enumerations of error, appellant contends the trial court erred by giving two charges taken from OCGA §§ 27-5-6 (1) (A) and (8) dealing with the structural adequacy of the facility in which a wild animal, such as a tiger, is housed and the number of employees and type of expertise required to supervise and operate properly such a facility. Appellant argues that because no evidence was adduced that the facility in question was either improperly constructed or lacked an appropriate number of personnel, both charges were without evidence to support them. We do not agree. Contrary to appellant’s argument, the manner in which appellee was injured brought into issue the safety of the cage housing appellant’s tiger, which was constructed with a seven inch aperture at the back, and evidence showing that the zoo housed 150-200 animals and that management of the facility was left to appellant with the help of occasional employees was sufficient to call into question the issue of proper supervision. “It is well established an instruction is not abstract or inapplicable where there is any evidence, however slight, on which to predicate it. [Cit.]” Big Bend Agri-Svcs. v. Bank of Meigs, 174 Ga. App. 493, 496 (5) (330 SE2d 422) (1985).

Nor do we agree with appellant that charging these code sections was erroneous because appellee was an employee rather than a member of the general public, and therefore was not a member of the class the statutes were intended to protect. OCGA § 27-5-1 expresses the intent of the legislature in enacting laws dealing with the care and handling of wild animals in captivity. It provides, in pertinent part, that “[t]he importation . . . and possession of wild animals are privileges not to be granted unless it can be clearly demonstrated that such actions can be accomplished in a manner that does not pose unnecessary risk to . . . the citizens of and visitors to this state.” (Emphasis supplied.) Appellee is clearly a citizen of this state, and thus an intended beneficiary of the statute. Accordingly, as there was evidence to support them and they were adjusted to the evidence in this case, the trial court did not err by giving these two charges.

2. We find meritless appellant’s contention that the trial court erred by charging the jury that the law provides in this state that when a person is injured by an attack of an animal that is wild by nature, the negligence of the owner or keeper of that animal is presumed, because of the dangerous and ferocious propensities of a wild beast. The charge was taken verbatim from Candler v. Smith, 50 Ga. App. 667, 670 (2) (179 SE 395) (1935), and although we agree with appellant that the facts sub judice are slightly different from those in Candler, those factual differences do not detract from the applicability of the principle in Candler to this case. The charge given was an accurate statement of the law and adjusted to the evidence in this case, and the trial court did not err by giving this charge. See generally Duncan v. Deits, 185 Ga. App. 136, 137-138 (363 SE2d 601) (1987).

3. Appellant asserts the trial court erred by charging the jury on the higher standard of care owed to “children of tender years” because appellee had reached the age of fourteen years and two months when the injury occurred, and thus the charge was not applicable to him. Because a primary defense in this action was that appellee failed to exercise due care for his own safety despite being warned repeatedly about the dangers, appellant argues that instructing the jury regarding the standard of care for a “child of tender years” allowed the jury to apply to appellee a standard of care more favorable than that to which he was entitled. We agree and reverse.

“ ‘A boy fourteen years of age is presumptively chargeable with the same standard of diligence for his own safety as an adult.’ [Cit.] This, of course, means that after a youth has reached the age of 14 years he will not be treated as a ‘child of “tender years,” but as a young person who has passed that period and become chargeable with such diligence as might fairly be expected of the class and condition to which he belongs.’ [Cit.]” Redding v. Morris, 105 Ga. App. 152, 154-155 (123 SE2d 714) (1961). Accord Biggs v. Brannon Square Assoc., 174 Ga. App. 13, 17 (329 SE2d 239) (1985).

Viewing the charge as a whole, although the trial court did not instruct the jury that appellee was a “child of tender years,” we find that giving the instructions concerning “children of tender years” and that “[t]here is a greater duty owed to small persons, small children, lawfully upon premises than there is owed to older persons,” while also charging the jury that “a boy over the age of fourteen ... is chargeable with exercising due care and diligence of his own safety against palpable and manifest peril” was likely to confuse the jury as to the applicable standard of care. “Where a charge containing two distinct propositions, conflicting one with the other, is calculated to leave the jury in such a confused condition of mind that the jury can-ot render an intelligible verdict, the result cannot be held harmless and requires the grant of a new trial. [Cits.]” Rizer v. Harris, 182 Ga. App. 31, 34-35 (3) (354 SE2d 660) (1987). Accordingly, we reverse and remand this case for a new trial.

Decided July 11, 1989

Rehearing denied September 5, 1989

Glover & Blount, Percy J. Blount, for appellant.

Samuel F. Maguire, Bell & Bell, David B. Bell, for appellee.

4. Appellant finally enumerates as error the trial court’s failure to give a requested addition to its charge concerning the Commissioner of Labor having enacted regulations prohibiting any minor under the age of sixteen from employment in dangerous occupations. The requested addendum would have informed the jury that the Commissioner had not declared the operation of a zoo or the exhibition of wild animals to be such a dangerous occupation.

OCGA § 39-2-2 authorizes the Commissioner of Labor to promulgate regulations listing those occupations dangerous to minors under the age of sixteen. Regulation 300-7-2-.01, promulgated pursuant to that statute, contains a list of those occupations deemed dangerous by the Commissioner, and in which no minor may be employed (which list does not include the operation of a zoo), but also states “nor shall a minor under the age of 16 be similarly employed in any other occupation that a reasonable person in good conscience would consider dangerous to the life, limb or injurious to the health and/or morals of such minor.” Only the latter, “catchall” portion of the regulation was charged by the trial court. We find no error in the trial court’s omission of the requested addendum as it is clear from the regulation that the list of dangerous occupations was not meant to be exhaustive. However, because we have held in Division 3 that a new trial is required, we note that upon retrial a more balanced charge would inform the jury that the regulation provides that no minor under the age of sixteen shall be employed in the occupations listed or “in any other occupation that a reasonable person in good conscience would consider dangerous.”

Judgment reversed and case remanded.

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


text:
    77271.
    77273.
    STAR LAUNDRY, INC. v. CITY OF WARNER ROBINS. RUSHING v. CITY OF WARNER ROBINS.
    (386 SE2d 738)
    Decided September 5, 1989.

      Pamela M. Richards, for Star Laundry & Rushing.

      James E. Elliott, Jr., for City of Warner Robins.

      George Kushinka, Fred E. Godwin, Jr., for Johnson.
   Banke, Presiding Judge.

The judgments previously rendered by this court in the above-captioned cases, reported in Star Laundry v. City of Warner Robins, 189 Ga. App. 839 (377 SE2d 709) (1989), having been reversed by the Georgia Supreme Court in City of Warner Robins v. Rushing, 259 Ga. 348 (381 SE2d 38) (1989), said judgments are hereby vacated; and the corresponding judgments from which the appeals were taken are hereby affirmed.

Judgments affirmed.

Birdsong and Beasley, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A89A0797.
    GRIFFITHS et al. v. PHENIX SUPPLY COMPANY, INC.
    (385 SE2d 789)
   McMurray, Presiding Judge.

Plaintiff Phenix Supply Company, Inc., brought this suit on an account against defendants Griffiths and Olsen, in the State Court of Cobb County. Answering the complaint, defendants pleaded, inter alia, novation. Additionally, defendants asserted a counterclaim against plaintiff seeking damages for abusive litigation.

Following the entry of a pre-trial order, the case was tried by the court sitting without a jury. It was stipulated that with regard to the main claim, the sole issue to be determined at trial was whether there was a novation of defendants’ debt to plaintiff.

Determining that no novation occurred, the trial court entered judgment in favor of plaintiff and against defendants on the main claim (in the amount of $21,600). It also entered judgment in favor of plaintiff with regard to the abusive litigation counterclaim and awarded plaintiff attorney fees pursuant to OCGA §§ 9-15-14 (b) and 13-6-11. Defendants appeal. Held:

1. “A novation or accord and satisfaction is in itself a contract nd must have all the elements of a de novo contract. [Cits.] There-ore, there must be a meeting of the minds if the novation or accord nd satisfaction is to be valid and binding.” Mayer v. Turner, 142 Ga. App. 63 (1), 64 (234 SE2d 853). “ ‘In every novation there are four essential requisites: (1) a previous valid obligation, (2) the agreement of all the parties to the new contract, (3) the extinguishment of the old contract, (4) the validity of the new one. If these essentials, or any one of them, are wanting, there can be no novation.’ [Cit.]” Savannah Bank &c. Co. v. Wolff, 191 Ga. 111, 119 (4), 120 (11 SE2d 766). Thus, “it must appear that the person substituted for the debtor was, by agreement between the creditor, the debtor, and himself, substituted for the original debtor, who was released from the promise. In other words, it must be shown that the person substituted as the debtor in the place of the person released, became such as the result of an agreement in which all three concurred.” Palmetto Mfg. Co. v. Parker & Anderson, 123 Ga. 798, 800 (51 SE 714). Accord Cowart v. Smith, 78 Ga. App. 194, 198 (50 SE2d 863).

In the case sub judice, defendants presented evidence demonstrating that plaintiff agreed to accept defendants’ partial payment (a check in the amount of $5,406.69) and a third party’s promissory note in order to extinguish defendants’ debt. On the other hand, plaintiff presented evidence demonstrating it made no such agreement with defendants or the third party. The trial court credited plaintiff’s evidence, finding plaintiff did not agree with defendants or the third party to accept the check and note in order to extinguish defendants’ debt. Accordingly, the trial court concluded that no novation occurred. Inasmuch as the trial court’s conclusion is supported by the evidence, we will not interfere with it. Campo Constr. v. Stembridge, 138 Ga. App. 555, 557 (226 SE2d 797). “We will not retry factual issues but limit our review to the correction of errors of law. Kingston Development Co. v. Kenerly, 132 Ga. App. 346, 348 (208 SE2d 118). Campo Constr. v. Stembridge, supra at 557.

2. Defendants contend a novation occurred as a matter of law because they presented the partial payment check and the third party’s promissory note simultaneously to plaintiff and plainti cashed the check (although plaintiff made no efforts whatsoever t collect the promissory note). This contention is without merit. Ther was ample evidence that plaintiff did not accept the check in conjunc tion with the promissory note upon the understanding that defend ants’ debt was to be extinguished. In fact, according to plaintiff, n understanding whatsoever was reached by the parties regarding th presentation of the check and the promissory note. See generall, Lewis v. Alfred L. Simpson & Co., 183 Ga. App. 166 (358 SE2d 262

3. The trial court determined that plaintiff was substantially ju tilled in bringing suit against defendants; that defendants’ counte claim for abusive litigation lacked substantial justification; and th defendants’ counterclaim unnecessarily expanded the proceedings, also determined that defendants acted in bad faith, were stubborn litigious, and caused plaintiff unnecessary trouble and expense. Accordingly, the trial court awarded plaintiff attorney fees pursuant to OCGA §§ 9-15-14 (b) and 13-6-11. Defendants contend the trial court erred in awarding attorney fees to plaintiff.

Decided September 5, 1989.

Kearns & Reeves, Charles F. Reeves, for appellants.

Powell, Goldstein, Frazer & Murphy, Jerry B. Blackstock, William M. Ragland, Jr., for appellee.

In determining whether a trial court erroneously assessed attorney fees under OCGA § 9-15-14 (b), the standard of review is “abuse of discretion.” Haggard v. Bd. of Regents &c., 257 Ga. 524, 527 (360 SE2d 566). With regard to awards of attorney fees under OCGA § 13-6-11, the standard of review is “any evidence.” Ken-Mar Constr. Co. v. Bowen, 245 Ga. 676 (266 SE2d 796). Employing these standards of review, we conclude that the trial court did not err in awarding attorney fees to plaintiff.

4. Plaintiff’s motion to assess frivolous appeal damages is denied.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


author: Pope, Judge.

text:
    A89A0802.
    SINGLETARY v. THE STATE.
    (385 SE2d 791)
   Pope, Judge.

Defendant Hudgins Singletary was convicted, after a bench trial, of six counts of issuing bad checks. His four-year sentence on each count was probated on the condition that restitution be made to the victims. Defendant appeals the convictions on the ground that the evidence did not establish present consideration for any of the checks set forth in the indictment.

Counts I, II, III and VI of the indictment allege that the checks involved were issued for wages. The evidence presented at trial is sufficient to support a conviction on these counts.

Count IV alleges that a check for $2,953.16 was issued to Jack Carter for present consideration. Carter testified that he contracted with defendant for certain goods and services, including the building of a front and back porch on a mobile home and the laying of concrete pipe and gravel for a driveway. The witness identified two invoices for the goods and services dated September 16, 1988 and testified that the invoices represented work completed. The check to Carter was issued September 19, 1988. “[I]n the fast pace of commerce, services and payment for services cannot always be exchanged at exactly the same time. However, the requisite of ‘present consideration’ may exist although goods or services are received before a check is delivered in payment, where the interval is slight and the exchange can be characterized as a single contemporaneous transaction.” Bowers v. State, 248 Ga. 714, 715 (285 SE2d 702) (1982). The evidence in this case was sufficient to support a finding that the exchange of goods and services for the defendant’s check was a single contemporaneous transaction. See Gilley v. State, 182 Ga. App. 681 (356 SE2d 655) (1987).

Decided September 5, 1989.

Ken Gordon, for appellant.

William G. Hamrick, Jr., District Attorney, Monique F. Kirby, Assistant District Attorney, for appellee.

Count V alleges that a check for $650 was issued to G & S (the name of a partnership formed by two of Singletary’s employees) in exchange for present consideration. The facts stipulated at trial show that the check was delivered to Singletary’s employee to reimburse him for a payment the employee had voluntarily made for supplies delivered to Singletary’s place of business while Singletary was away from his office. While the employee may have expected to be reimbursed by his employer for the payment he voluntarily made, it cannot be said that he made the voluntary payment in exchange for the reimbursement check which was delivered to him at a later time after Singletary returned to his place of business. Consequently, we agree that as to the check at issue in Count V of the indictment the evidence was insufficient to support a conviction for issuance of a bad check “in exchange for a present consideration . . . .” OCGA § 16-9-20 (a). The conviction on Count V of the indictment must be reversed but the convictions are affirmed as to all other counts of the indictment.

Judgment affirmed in part and reversed in part.

Banke, P. J., and Sognier, J., concur.


author: Birdsong, Judge.

text:
    A89A0806.
    POWELL v. THE STATE.
    (386 SE2d 54)
   Birdsong, Judge.

Doyle E. Powell appeals his conviction for forgery involving a $6,550 check passed upon the account of H. B. Griffith.

Powell was an attendant at the nursing home where Griffith lived. Griffith had lent Powell $1,800 a few days before this $6,550 check was negotiated. The $6,550 check was made out to Lonni Brown; Brown cashed it that day on August 1, 1986. Investigation Brown led to the appellant Powell as suspect; Brown said Powell signed the check and made it out to him. Brown kept about half of the money. Appellant Powell admitted being with Lonnie Brown on August 1, but denied any knowledge of or participation in a forgery. Evidence of a similar transaction was admitted showing that in 1984, while employed as a guard at the Gwinnett County Correctional Institute, appellant had obtained a check from an inmate who had recently inherited a large sum of money; appellant then had a friend cash the check for $3,650. Appellant pled guilty to the offense of forgery in that instance.

In the trial of this case the trial court, over objection for hearsay, admitted in evidence the transcribed testimony of Griffith at the earlier probation revocation hearing, and the affidavit of forgery executed by Griffith prior to the investigation and arrest. Appellant contends the trial court erred in ruling Griffith was unavailable to testify at trial due to Griffith’s state of mind and infirmity, thus denying appellant his Sixth Amendment right to confrontation. He complains, moreover, that Griffith’s transcribed testimony and affidavit were further inadmissible because appellant had not been represented by counsel at the probation revocation hearing and thus was denied the right to effective cross-examination and confrontation at that hearing which rendered the hearsay evidence doubly unreliable. Held:

1. The State and appellant have much belabored the rectitude of the trial court’s ruling that Griffith was unavailable to testify, as well as the standards of law permitting such hearsay evidence. See Higgs v. State, 256 Ga. 606 (351 SE2d 448). But more to the point, we find that in any event there was nothing in either the forgery affidavit or Griffith’s transcribed revocation testimony that was incriminatory of appellant. Further, appellant himself cross-examined Griffith at the revocation hearing, and his questioning was fully adequate to meet any negative implication in the witness’ testimony.

The affidavit on its face does no more than state that a check had been issued on Griffith’s account and that he did not execute the check or authorize its execution, and that it was a forgery. The affidavit was sworn under oath and notarized; particularly in Griffith’s absence the affidavit was an essential element of proof of the crime, and hence met the test of necessity. See Higgs, supra.

• Moreover, the affidavit is devoid of reference, direct or indirect, to appellant or anyone else as a suspect. There was nothing in it to harm appellant. Appellant does not deny the check was a forgery but merely says he had nothing to do with it. Particularly since the affidavit cast no blame on appellant, there was nothing in it to be confronted.

As for the testimony of Griffith given at the revocation hearing, which was recited in this trial by the court reporter who had witnessed and transcribed it, there was nothing in it directly incriminating appellant. Griffith stated that he “had the misfortune of meeting the gentlemen [appellant]” when Griffith was in the nursing center while appellant was an orderly there; that he “presume[d]” appellant had access to his room at the nursing center, since “[h]e had access to all of [the rooms], as far as I know”; and that appellant had been in his room on some occasion; and that he lent appellant some money by check, because he seemed a nice fellow. Griffith was asked on direct if appellant had ever talked to him about the forged check; Griffith said no, and said he had never asked appellant about the forged check because “I had no occasion to.” Griffith testified that appellant never paid back the $1,800 he had lent appellant. He testified he generally tried to keep his checkbook in his jacket pocket, but did not wear the jacket all the time.

Appellant himself cross-examined Griffith. His questions were not unastute. Griffith admitted he had never returned to his room and found appellant in it. Appellant also asked Griffith whether he had also accused two other employees of the forgery and Griffith admitted appellant had promised to pay back the $1,800 he had earlier borrowed.

Seeing as how Griffith in his direct testimony had not implicated appellant, except to say that appellant worked at the nursing home and had been in his room, we think appellant’s own cross-examination was fully adequate to meet the testimony. He was awarded his right of confrontation, and he took advantage of it. The evidence against appellant came mostly from Lonnie Brown, with whom he admitted being on August 1 when the forged check was cashed, from the fact that he was the obvious link between Lonnie Brown and Griffith, and from the pertinent evidence of a very similar transaction. Griffith made no accusation against appellant. We conclude without hesitation that if there was any error whatever arising from appellant’s lack of counsel at the revocation hearing, in the trial court’s finding that Griffith was unavailable for this trial and in admitting Griffith’s transcribed revocation testimony and the affidavit, it is highly probable such error did not affect the verdict (Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869); Cauley v. State, 130 Ga. App. 278, 286-288, 290-293 (203 SE2d 239)) and, as further regards any possible constitutiona error, was harmless beyond a reasonable doubt. See Kirkland v. State, 141 Ga. App. 664 (234 SE2d 133).

2. We find no error, in the first place, in the trial court’s rulin that Griffith was unavailable to testify and that the evidence had suf ficient indicia of reliability and trustworthiness to support its admis sion under Higgs v. State, supra. The fact that his day nurse testifie generally that he seemed alert and had good days does not rende ineffective or incredible his physician’s testimony that, having su fered a debilitating stroke, Griffith experienced varied and unpredictable behavior patterns. It is not necessary that an appearance in court be deemed “life-threatening” to a witness, or that he be dead (although the trial court conceded this would be pretty “conclusive”) to authorize a finding that he is unavailable to testify, particularly if his testimony might be deemed unreliable because of a present infirmity. We should note that there was so little negative implication against appellant in Griffith’s revocation testimony, that his unavailability as prosecuting witness at this trial might just as well be a circumstance which turned to appellant’s favor.

Decided September 5, 1989.

Kenneth D. Feldman, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Assistant District Attorney, for appellee.

We find no basis to reverse this verdict, and we find further that even without the complained-of evidence, the evidence was such that a rational juror could find appellant guilty of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

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


text:
    A89A0833.
    DORSEY v. THE STATE.
    (386 SE2d 167)
   Birdsong, Judge.

Appellant Eric Wyatt Dorsey appeals his conviction of burglary.

Evelyn Klein returned home to find her back door ajar and a burglary in progress in her home. She went to the neighbors for help and called the police. Two persons were seen running from the general vicinity of Ms. Klein’s home. One of these men, who was black, was wearing a ski jacket of white, off-white or light colored material. The men entered a dark colored van which had window curtains and a missing spare tire.

Between fifteen to about forty minutes later, a brown van with curtains and no spare tire was stopped by the police. Appellant was a passenger in the van driven by his cousin, Darrell Leon Johnson. When a police officer approached the van, appellant was observed attempting to place a ski jacket under the seat. Jewelry belonging to Ms. Klein was found in Johnson’s possession. A radio cassette player belonging to Ms. Klein was found in the van, and a canister containing tear gas, also belonging to Ms. Klein, was found in appellant’s ski jacket pocket. Appellant’s scarf was found at the crime scene. Also found at the crime scene was a footprint. The tread from this print was similar to the tread on shoes taken from appellant by the police.

Darrell Leon Johnson testified that he and appellant had burglarized the house. The appellant testified and asserted an alibi defense. Appellant testified he was running at the time the offense was committed, that he had left his jacket and scarf in the van with Johnson, and that later Johnson picked him up after he had finished running. Appellant denied committing the burglary and denied any knowledge of the canister found in his jacket. Held:

1. Appellant asserts that the evidence was insufficient to sustain the verdict of guilty. We disagree.

The evidence in this case was both direct and circumstantial in nature. On appeal the evidence must be viewed in the light most favorable to the verdict, and appellant no longer is entitled to be shielded by the presumption of innocence. Watts v. State, 186 Ga. App. 358 (1) (366 SE2d 849). Review of the transcript in a light most favorable to the jury’s verdict “reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of [the burglary offense] charged.” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Baggett v. State, 257 Ga. 735 (2) (363 SE2d 257).

2. Appellant asserts that the trial court erred in failing to charge on the lesser included offense of theft by receiving and theft by taking. The record reflects that appellant did not make a written request for such a charge. “[E]ven if the evidence . . . justified a charge on [theft by receiving and theft by taking] . . . there was no written request for such a charge. A trial judge never errs in failing to include a charge on a lesser included offense unless there is a written request to charge.” Mosley v. State, 257 Ga. 382 (2) (359 SE2d 653).

3. Appellant asserts that the trial court erred in not declaring a mistrial after the State impermissibly commented on the defendant’s silence at the time of his arrest in violation of the Fifth and Fourteenth Amendments.

At the onset we note that the record reveals and the trial court tacitly concluded that the law enforcement officer’s reference to appellant’s initial declination to make a statement was not intentionally induced by the prosecutor.

Following the trial court’s denial of appellant’s motion for mistrial, a colloquy occurred between the trial judge, the defense counsel and the prosecutor. That colloquy in pertinent part is as follows: “THE COURT: It’s my understanding that [appellant] was again advised of his original Miranda rights and he explained his rights to him again the next day . . . and he refused to actually sign the waiver of his rights, but . . . however, at this point [appellant] did make a statement that the victim could not identify the watches. . . . [DEFENSE COUNSEL]: Right, and on the 27th he refused to sign the waiver form and I would object to the officer saying that he refused to sign the Miranda rights waiver. If [appellant] identified some watches and he is limited to that and naming the watches that he had, I don’t object. [PROSECUTOR]: That was all I was planning to do. THE COURT: All right, let the jury come back in.” (Emphasis supplied.) Thereafter, appellant did not renew the motion for mistrial, the officer continued to testify, and testified as to the right’s warning and as to appellant’s voluntary statement made on the 28th concerning the watches. Appellant allowed this testimony to be introduced without objection.

Decided September 5, 1989.

J. M. Raffauf, for appellant.

Robert E. Wilson, District Attorney, Fran Shoenthal, Eleni A. Pryles, Assistant District Attorneys, for appellee.

We conclude, after examining the trial in toto, that the appellant, by words and conduct, after his motion for mistrial was denied, waived the motion hereinbefore made. If he insisted on his motion, counsel should have moved again for a mistrial.

Moreover, assuming that error of constitutional magnitude had occurred when the trial judge denied the mistrial motion, we find that such error was harmless beyond a reasonable doubt in light of the attendant circumstances and the overwhelming evidence of appellant’s guilt. Palmer v. State, 186 Ga. App. 892, 897 (369 SE2d 38); see generally Vaughn v. State, 248 Ga. 127 (2) (281 SE2d 594) and its progeny.

Judgment affirmed.

Deen, P. J., concurs. Benham, J., concurs fully as to Divisions 1 and 2, and concurs in judgment only as to Division 3.


author: Beasley, Judge.

text:
    A89A0848.
    CLEVELAND v. THE STATE.
    (386 SE2d 169)
   Beasley, Judge.

Following denial of his motion for new trial, Carl Cleveland appealed his conviction and sentence for violation of the Georgia Controlled Substances Act by selling cocaine, OCGA § 16-13-30 (b).

1. Appellant contends that the verdict was against the weight of the evidence and without evidence to support it in that there was no proof that he sold cocaine to the GBI agent other than the agent’s testimony and no evidence that placed him at the scene or in the county of the transaction on the day in question.

The undercover GBI agent testified that she traveled with a confidential informant to a car wash in Butts County. The informant pointed Cleveland out and the agent and the informant pulled over to the side of the street at the car wash and began a conversation with Cleveland. The informant introduced defendant to the agent as “Carl.”

The informant asked Cleveland if he could “get anything” for them. Cleveland asked what the informant wanted. At that time the agent told Cleveland that she “wanted to get a half a gram.” Cleveland stated that he did not have anything on him; it would take about fifteen to twenty minutes.

The agent asked Cleveland where he wanted her to meet him, and Cleveland responded at his residence. The informant and the agent knew where Cleveland’s residence was. The agent had been there before to purchase drugs but had not seen Cleveland because he was not at home. The agent and informant agreed to meet at Cleveland’s residence. The agent also asked how much it would cost and Cleveland said $140.

The agent and informant drove to a parking area behind Cleveland’s residence. When they approached there were several people with Cleveland. The two waited a few minutes and beeped the horn. Cleveland came over to the agent and handed her a small clear plastic bag containing what was later confirmed as cocaine. The agent handed him $150. Cleveland gave the agent $10 change.

The GBI “cover agent” corroborated much of his colleague’s testimony including a positive identification of Cleveland as the participant in the drug transaction.

The evidence was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends the trial court abused its discretion in failing to take remedial action or grant his mistrial motion as a result of juror misconduct. He maintains that the jury foreman discussed the case with co-workers, depriving him of a fair and impartial jury as guaranteed by Ga. Const. 1983, Art. I, Sec. I, Par. XI.

After the close of evidence, defendant asserted that following an overnight recess during which the jurors were instructed not to discuss the case with anyone whether or not the person was connected with the case, juror White might have discussed his case with a non-juror to the effect that his (White’s) mind was already made up before the trial got started.

Defendant called non-juror Miller as a witness. Miller testified that he and White both drove school buses and when he went to clock in at the bus shop, he heard White telling co-workers how attractive the GBI agent was. Miller stated that he asked White whose case he was on, and that White responded “Carl Cleveland” and “Well, he’ll probably get some time,” because the jury had discussed how it was going to give him some time. During questioning by the State, Miller further testified that White had not discussed anything about the facts of the case or any testimony.

The court called juror White. He testified that several people at work asked him whether the case was still going on and he had responded that it was but he could not discuss it. A co-worker said, “They’re going to clean up Butts County.” White responded, “Yeah, I guess so.” The co-workers began to talk about Cleveland. White said he did not know Cleveland. As White got ready to leave, another worker said, “a black guy that goes out there and gets involved in dope and everything and they got busted.” White responded, “It don’t make no difference if you’re black or white,” and “If you get caught, you should do time.” White left.

White further testified he did not discuss the facts of the case with anyone and he had not made any statement that he and the other jurors had already decided the defendant’s guilt and defendant was going to serve some time. He stated the only comments he made about the GBI agent were to the effect that she was a nice-looking young lady.

White responded, to the court’s questioning, that nothing transpired at the bus garage that would affect his ability to be fair and impartial in the case, that he believed he could be as fair and impartial as he indicated when he was selected as a juror, that nothing occurred outside of court which affected his ability to be fair and impartial, that he had not had any other discussion with anyone about the case, and that he had not discussed what transpired at the bus garage with any other juror.

The court permitted White to return to the other jurors with the instruction that he was not to relate what transpired at the hearing.

Defendant moved for a mistrial. The court denied the motion finding that the testimony overcame any presumption of harm to defendant, that any mention of the case was so cursory in nature as to have no effect on juror White’s ability to be fair and impartial, that from the evidence as a whole the merits of the case were not discussed with anyone, and that nothing improper occurred sufficient to grant a mistrial. The court asked if there was anything further before the jury was returned for the court’s charge and defense counsel replied there was not.

“There is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred. [Cit.] . . . some irregularities are inconsequential. [Cit.]” Lamons v. State, 255 Ga. 511, 512 (340 SE2d 183) (1986). A mistrial is not always required when there is juror misconduct. See Rogers v. State, 256 Ga. 139, 145 (6) (344 SE2d 644) (1986); Hardy v. State, 242 Ga. 702, 704 (3) (221 SE2d 289) (1978); Jones v. State, 185 Ga. App. 649, 651 (3) (366 SE2d 144) (1988).

“ ‘Ordinarily motions for mistrial because of improper conduct of jurors or parties are addressed to the sound discretion of the trial judge.’ [Cit.]

“Unless there is an abuse of discretion concerning the trial court’s ruling on alleged improper juror conduct, the appellate court will not upset the trial judge’s determination. [Cit.]” Hart v. State, 157 Ga. App. 716, 717 (1) (278 SE2d 419) (1981).

The court conducted a thorough hearing regarding the out-of-court communication at which both defendant and the State had ample opportunity to question the witness and the offending juror. Such testimonial evidence was an acceptable means to rebut a presumption of harm. Hardy v. State, supra at 704 (3). The evidence showed that the juror’s conduct had not prejudiced him nor affected any other juror. No abuse of discretion in denying the motion for mistrial is demonstrated nor did the court err in not taking further remedial action. None was requested. No instruction in this regard to the remaining jurors was required as there was no evidence they were aware of their fellow juror’s out-of-court statements. No constitutional error as raised, occurred.

3. Appellant contends the trial court erred in failing to instruct the jury not to infer guilt or innocence from comments about two bomb threats during trial and not to assume that he was responsible for them.

Appellant takes issue with two comments. The first was made by the State during an objection to certain cross-exaniination of the GBI agent who made the drug buy. The agent was asked how much she knew about the confidential informant. The State objected to the line of questioning on the basis that it would tend to identify the informant and thus endanger his or her life, adding, “We’ve already had a bomb threat in this courthouse this morning and we object to any more questions about the confidential informant in this case.” Defendant made no objection to the bomb threat statement.

The second comment was made by the court as it recessed for the day. After stating that it was a good time to recess, the court said, “We’ve probably had about as much excitement as we can stand.” Again no objection was made. In fact, after completing the parting instructions and releasing the jury, the court specifically asked counsel if there was anything else before recessing and both the State and defendant responded there was nothing.

Having failed to object to the statements below, appellant cannot urge error. Williams v. State, 255 Ga. 97, 100 (4) (335 SE2d 553) (1985). Moreover, appellant made no request for instruction to the jury about the bomb threats and stated he had no objections to the charge as given. Gaines v. State, 177 Ga. App. 795, 796 (1) (341 SE2d 252) (1986), is non-precedential but persuasive.

Decided September 5, 1989.

Arleen E. Gardenhire, for appellant.

E. Byron Smith, District Attorney, Edwin J. Wilson, Assistant District Attorney, for appellee.

In any event, there was no suggestion that the bomb threats were indirectly or directly caused by appellant or linked to him. The jury was adequately instructed regarding the presumption of innocence and the State’s burden of proof. Under these circumstances, the two comments caused appellant no harm.

4. Appellant contends that the GBI agents were erroneously permitted to reveal that they were summoned to the county to do an undercover investigation, which prejudiced his case by implying there was drug activity there and some wrongdoing by him.

Failure to object at trial waived the alleged error. Bridgers v. State, 183 Ga. App. 98, 99 (1) (357 SE2d 894) (1987).

In any event, at the beginning of trial, pursuant to appellant’s motion, the court instructed the State’s witnesses not to mention a list of local persons suspected of involvement in drug activities, which had been compiled by local law enforcement personnel. Following the instruction, appellant responded that it adequately covered the area of concern. The State’s witnesses abided by the court’s ruling and refrained from reference to the list. Had appellant wished suppression of the fact that the agents had been called in as part of an undercover drug operation, he could have so moved the court. Moreover, appellant has failed to demonstrate how he was harmed by the information.

Judgment affirmed.

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


author: Pope Judge.

text:
    A89A0868.
    COXWELL TRACTOR & EQUIPMENT SALES, INC. et al. v. BURGESS.
    (385 SE2d 753)
   Pope Judge.

Wallace M. Burgess entered into an employment agreement with Coxwell Tractor & Equipment Co., Inc. Pursuant to the terms of the agreement Burgess was entitled to a two-week paid vacation each year after one year of employment and was to be paid for thirty days beyond the date of notice of termination of the agreement by either party. Some two years after the date the agreement was signed the employer gave Burgess written notice of immediate termination. Burgess filed a complaint against the corporation and its sole shareholder James L. Coxwell, Sr., alleging, inter alia, he was owed additional wages for the thirty-day period after notice of termination as well as for accrued vacation days. Coxwell and the corporation counterclaimed for funds Burgess allegedly owed the corporation. Partial summary judgment was entered in favor of Burgess on his claims for wages and, in response to Burgess’ request, the trial court entered final judgment on the amount awarded by the grant of partial summary judgment. On appeal Coxwell and the corporation assert that the court erred in granting summary judgment against Coxwell, individually, and in entering final judgment on the award because the counterclaim against Burgess for set-off is still pending.

1. We agree the court erred in granting partial summary judgment as to wages owed against James L. Coxwell, Sr., individually. The contract of employment states on its face that it is made and entered into by and between Burgess and Coxwell Tractor & Equipment Co., Inc. The agreement was signed on behalf of the corporation “By: /s/ James L. Coxwell, Sr. ‘Employer.’ ” At deposition Coxwell testified that he signed the agreement as president of the corporation. Consequently, the corporation and not Coxwell, individually, owes Burgess wages under the employment agreement. The grant of partial summary judgment is affirmed as to the corporate defendant but reversed as to Coxwell, individually.

2. The court did not err or abuse its discretion in entering final judgment on the award of partial summary judgment to Burgess even though the corporation’s counterclaim for set-off is still pending. Even in regard to a compulsory counterclaim the trial court may, in its discretion, order a separate trial as to the counterclaim. OCGA § 9-11-13 (i). The statute that authorizes the trial court to enter final judgment as to fewer than all claims in an action expressly applies to both claims and counterclaims. OCGA § 9-11-54 (b). Even though the corporation set forth its counterclaim as a set-off to any award which might be entered in favor of Burgess, a set-off is a claim for affirmative relief and is not a defense. T. V. Tempo v. T.V. Venture, 182 Ga. App. 198 (1) (355 SE2d 76) (1987). The corporation’s right to pursue its claim against Burgess has not been compromised since it may still pursue its claim for affirmative relief upon remittitur of the appeal to the trial court.

Judgment affirmed in part and reversed in part.

Banke, P. J., and Sognier, J., concur.

Decided September 5, 1989.

Greene & Davis, Laurie C. Davis, for appellants.

Alembik, Fine & Callner, Harry J. Winograd, for appellee.

       According to the deposition testimony of James L. Coxwell, Sr., defendant Coxwell Tractor & Equipment Sales, Inc., is the same entity as Coxwell Tractor & Equipment Co., Inc., which entered into the employment agreement.


author: Carley, Chief Judge.

text:
    A89A0890.
    COMBS v. THE STATE.
    (385 SE2d 754)
   Carley, Chief Judge.

After a jury trial, appellant was found guilty of kidnapping with bodily injury, kidnapping, cruelty to children, two counts of false imprisonment, and three counts of aggravated assault. He appeals from the judgments of conviction and sentences entered on the jury’s guilty verdicts and from the denial of his motion for new trial.

1. Over objection, the State was allowed to introduce evidence of appellant’s commission of an independent crime. This ruling is enumerated as error.

“ ‘Generally, evidence of other criminal acts of the defendant is inadmissible because it tends to place the defendant’s character into evidence in violation of OCGA § 24-9-20 (b). Exceptions allow independent crimes to be introduced on two conditions: 1) there must be evidence that defendant was in fact the perpetrator of the independent crime, and 2) there must be sufficient similarity or connection between the independent crime and the charged crime that proof of the former tends to prove the latter. [Cits.] Thereafter the independent crime may be introduced to prove identity, motive, plan, scheme, bent of mind and course of conduct. [Cit.]’ [Cit.]” Franklin v. State, 189 Ga. App. 405, 407-408 (1) (376 SE2d 225) (1988). Although appellant had not been tried and convicted of the independent crime, “it is not necessary that such offense have resulted in indictment or conviction.” Brown v. State, 183 Ga. App. 476, 477 (1) (359 SE2d 233) (1987). See also Crews v. State, 185 Ga. App. 494 (2) (364 SE2d 625) (1988). The independent offense, as well as both occurrences at issue in the present case, involved a white male, driving a white car, who attacked female motorists under the pretext of offering them assistance. See Munn v. State, 179 Ga. App. 357 (346 SE2d 128) (1986). The perpetrator fondled all victims and manifested a clear intent to rape. “ ‘Although [the independent crime and] the two occurrences [which underlie the instant prosecution] were not identical, there were sufficient similarities to authorize the trial court to admit the testimony. [Cit.]’ [Cit.]” Brown v. State, 250 Ga. 66, 73 (5) (295 SE2d 727) (1982). See also Franklin v. State, supra at 405-408 (1); Devane v. State, 183 Ga. App. 60, 63 (2b) (357 SE2d 819) (1987).

2. Appellant enumerates the general grounds. We find that a rational trier of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided September 5, 1989.

Martin & Martin, Harold E. Martin, for appellant.

Tommy K. Floyd, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.

Judgments affirmed.

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


text:
    A89A0898.
    NORTHCRAFT et al. v. DOE.
    (385 SE2d 756)
   Carley, Chief Judge.

In this adoption proceeding, the biological mother executed an affidavit indicating that she did not know the identity of the putative father. At a hearing set by the trial court, the mother testified that her lack of knowledge was the result of her intoxication at the time that the child was conceived. Finding that this testimony was unworthy of belief and that the mother was intentionally concealing the identity and whereabouts of the putative father, the trial court ordered that the adoption proceeding would stand dismissed unless service was perfected upon or consent was obtained from the natural father within 90 days. The trial court granted a certificate of immediate review of this order, and this court granted the application for an interlocutory appeal.

OCGA § 19-8-4 (c) (5) (F) clearly provides that the biological “mother shall have the right not to disclose the name and address of the father of her child should she so desire. . . .” If the mother chooses not to make the disclosure, the trial court has no authority to dismiss the adoption proceeding. Instead, OCGA § 19-8-7 (b) (2) provides that the trial court must make a finding as to whether the petitioners have made a “reasonable effort... to identify and locate” the father. If such an effort has not been made, OCGA § 19-8-7 (b) (2) further provides that the trial court “shall” direct that an additional effort to identify and locate the father be made and that the hearing is to be continued pending that effort. If the instant order of the trial court were allowed to stand and the 90-day period expired without compliance, the child could never be adopted. Such a preclusion on adoption cannot be in the child’s best interest.

Therefore, the trial court’s order of conditional dismissal of the adoption proceeding is reversed and the case is remanded with direction that the procedure of OCGA § 19-8-7 (b) (2) be followed. Neither the child nor the petitioners should be punished for the mother’s perceived recalcitrance. In light of the mother’s explanation, the petitioners’ efforts to date to identify the putative father may well have been so reasonable that the termination of his parental rights is otherwise authorized. That is, of course, a matter for the trial court’s determination.

Decided September 5, 1989.

Gibson & Deal, Jerrold W. Hester, James B. Deal, for appellants.

Allison J. Lewis, pro se.

Judgment reversed and case remanded with direction.

McMur-ray, P. J., and Beasley, J., concur.