text:
    76751.
    LYMAN v. THE STATE.
    (374 SE2d 563)
   Benham, Judge.

In this appeal from his conviction for simple battery, appellant contends that the evidence was not sufficient to support a conviction and that the trial court erred by giving the jury a harmfully misleading instruction in response to a question it asked. We disagree with the first contention, but agree with the second and, accordingly, reverse the conviction.

1. According to the testimony of the victim in this case, she was working behind the counter in a convenience store when appellant came in to buy gasoline. Apparently because of appellant’s dissatisfaction with the quality of the victim’s service, harsh words and epithets were exchanged. The verbal violence escalated until it became physical: appellant picked up some paper bags that were stacked on the counter and hit the victim with them. She testified that the blow caused her pain.

Appellant’s testimony was somewhat different. He agreed that he was displeased with the victim because she took too long arranging for him to pump gas and getting ready to accept payment. He denied, however, that he struck her with bags held in his hand, swearing that he merely picked up two or three of the smallest bags there and threw them at the victim.

The testimony of the victim and of a co-worker was sufficient to permit the jury to find that appellant struck the victim and caused her pain. It is not necessary that the victim suffer great physical harm; the infliction of pain is sufficient harm under the statute. Mize v. State, 135 Ga. App. 561 (1) (218 SE2d 450) (1975). Accepting appellant’s testimony that he threw the bags at the victim rather than holding them in his hand to strike her, the jury could still find that appellant committed a battery. As this court noted in J.A.T. v. State of Ga., 133 Ga. App. 922 (1) (212 SE2d 879) (1975), “[e]ven under the former law, Code § 26-1408, which defined ‘battery’ rather restrictively as ‘the unlawful beating of another,’ battery was held to be committable without direct physical contact between the parties, e.g., by use of ... a rock [Cit.].” The evidence was sufficient to authorize any rational trier of fact to find appellant guilty of simple battery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Jackson v. State, 182 Ga. App. 826 (357 SE2d 143) (1987).

2. After the jury had deliberated for some time, it asked the court what the “exact charge” against appellant was. In response, the trial court charged the jury as follows: “This defendant is charged with the offense of simple battery which is listed in the accusation which you have before you.

“A person commits the offense of simple battery when he intentionally causes physical harm to another.

“I further charge you that any act of physical violence, and the law will not draw a line between different degrees of violence inflicted on the person of another, which is not necessary, is not privileged and which constitutes a harmful or offensive contact constitutes a battery.” (Emphasis supplied.)

The last portion of that charge was taken from Brown v. State, 57 Ga. App. 864, 867 (197 SE 82) (1938), and it is to that portion of the charge that appellant objects, arguing that the trial court’s use of the word “offensive” permitted thé jury to convict him for an offensive touching, which is a different method of committing simple battery than that with which appellant was charged. We find his argument meritorious.

The offense of simple battery is defined in OCGA § 16-5-23 (a) (1) & (2). Subsection (a) (1) concerns intentional contact of an insulting or provoking nature, contemplating a touching which does not injure but which is insulting. Subsection (a) (2), on the other hand, concerns the intentional causation of physical harm, a touching which goes beyond insult to the infliction of pain. Appellant was charged with simple battery in an accusation which alleged that he did “intentionally cause physical harm to the person of [the victim], by striking [her] on the head with a stack of paper bags.”

Decided October 14, 1988.

John R. Greco, for appellant.

James L. Webb, Solicitor, E. Duane Cooper, Assistant Solicitor, for appellee.

Our reading of that accusation is that appellant was charged with a violation of OCGA § 16-5-23 (a) (2). The jury instruction taken from Brown, supra, however, with its reference to an “offensive contact,” permitted the jury to convict appellant if it found that he had either caused the victim physical harm or made an offensive contact with her. Appellant’s admission that he intentionally caused the paper bags to come into contact with the victim authorized a finding by the jury that he made an offensive contact with the victim but did not cause her pain, a finding which would have supported a verdict of guilty of simple battery under the charge as given.

We held in Mize, supra, that physical contact of an insulting nature is a form of simple battery separate from causing physical harm, and that it must be charged specifically. “Thus a charge that simple battery may be committed either by intentionally making physical contact of an insulting or provoking nature or by causing physical harm, while a true statement of the elements of battery, is not a true statement of facts or law under which [appellant] could be convicted in the face of the accusation as drawn.” Dinnan v. State, 173 Ga. App. 191 (2) (325 SE2d 851) (1984).

“[I]t is reversible error to instruct the jury that an offense may be committed in more than one manner where only one manner is alleged in the indictment and no remedial instructions are given to limit the jury’s consideration to that particular manner.” Owens v. State, 173 Ga. App. 309 (4) (326 SE2d 509) (1985). In our view, the jury instruction taken from Brown constituted exactly the error condemned in Owens and requires reversal of appellant’s conviction.

Judgment reversed.

McMurray, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    76930.
    AMERICAN ALLOY STEEL, INC. v. BEARINGS & DRIVES, INC. et al.
    (374 SE2d 570)
   Pope, Judge.

Appellant American Alloy Steel, Inc., brought a product liability action against appellee Bearings & Drives, Inc., which, in turn, brought a third-party claim against appellee Fabricon, Inc., the manufacturer of the product in question. Appellant brought no claim against Fabricon. The jury awarded a $10,000 verdict to appellant against Bearings & Drives, Inc., and returned a verdict in favor of Fabricon on the third-party complaint. Although appellant obtained a verdict and judgment in its favor, it appeals from the exclusion of testimony by its expert witness.

Decided October 14, 1988.

Wendell K. Willard, for appellant.

William S. Goodman, R. Dennis Withers, for appellees.

The excluded testimony relates solely to the issue of liability, not damages. While the testimony may be relevant to the issue of the liability of Fabricon in the third-party complaint, appellant brought no claim against Fabricon and appellee Bearings & Drives, Inc., the third-party plaintiff, did not appeal. Without reaching the issue of whether the testimony was wrongly excluded, we hold that its exclusion was harmless as it related only to liability, an issue decided in appellant’s favor by the jury. Cf. Robinson v. Murray, 198 Ga. 690 (2) (32 SE2d 496) (1944); Fritz v. Eller, 153 Ga. App. 300 (2) (265 SE2d 72) (1980); Reliford v. Central of Ga. R. Co., 140 Ga. App. 782 (4) (232 SE2d 129) (1976) (in which the respective courts held any error in excluding evidence relating to damages was harmless because the jury had returned a defendant’s verdict on the issue of liability).

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    76946.
    TIMPSON et al. v. SIMMONS.
    (374 SE2d 356)
   Pope, Judge.

The trial court appointed plaintiff Matthew O. Simmons as receiver of certain property and ordered him to offer it for sale in the manner prescribed for judicial sales. Plaintiff sold the property to defendants as the highest bidders. Subsequent to the sale, defendants learned the property could not be conveyed free of liens and they defaulted on their bid. The trial court in the receivership proceeding ordered plaintiff to conduct a second judicial sale, rather than sell the property to the one who had entered the second highest bid at the first sale. The property was sold to the highest bidder at the second sale for a price $11,500 lower than that bid by defendants at the first sale. Plaintiff brought this action against defendants to recover the difference between the sale price and the price bid by defendants. Defendants appeal the trial court’s award of summary judgment to plaintiff.

Decided October 14, 1988.

Robert T. Romeo, for appellants.

In response to plaintiff’s motion for summary judgment, defendants each submitted an affidavit in which they alleged plaintiff told them on the courthouse steps, prior to the first sale, that the property would be sold to the second highest bidder if for some reason the highest bidder did not purchase the property. The second highest bid was only $100 less than defendants’ bid; therefore if the property had been sold to the second highest bidder, defendants would be liable for only a $100 deficiency. Defendant Timpson stated plaintiff told him “he did not see any problem in [being able to convey unencumbered title to the property].” In fact, the property was subject to several liens and for that reason defendants refused to purchase the property. Defendants argue their affidavit testimony creates an issue of contested fact sufficient to defeat the motion for summary judgment.

“[A] receiver’s sale is a judicial sale, and the maxim caveat emptor applies.” Kurfees v. Davis, 178 Ga. 429, 434 (173 SE 157) (1933); accord Penny v. Cash, 201 Ga. 215, 220 (39 SE2d 397) (1946). A purchaser at a judicial sale is subject to the maxim of caveat emptor “and is chargeable with knowledge of defects which the record discloses, notwithstanding statements of individuals.” Pittman Constr. Co. v. City of Marietta, 177 Ga. 573 (1) (170 SE 669) (1933). “[A] purchaser at [a judicial sale] can protect himself in no other way than by showing actual fraud, or mistake unaffected by his own negligence, of a character so gross as to amount to fraud.” Wylly v. Gazan, 69 Ga. 506, 518 (1882). See also OCGA § 9-13-167 (b). In this case, neither defendants’ answer nor the affidavits submitted by defendants in response to the motion for summary judgment create an issue of fraud. At most, defendants’ affidavits contend plaintiff mistakenly informed them of the status of the title to the property and the judicial procedure for selling the property in the event the highest bidder defaulted. “[T]he statement of the executor or administrator [in response to an inquiry regarding title to land] fixes no liability upon [the executor]. A purchaser at [an executor’s] sale purchases with his eyes open. Caveat emptor is the rule.” Wells v. Harper, 81 Ga. 194, 195 (6 SE 913) (1887).

Because defendants refused to comply with the terms of the judicial sale, plaintiff, as receiver, was entitled to resell the property and proceed against defendants for the deficiency. OCGA § 9-13-170. Summary judgment was properly granted to plaintiff.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

Matthew 0. Simmons, for appellee.


text:
    76960.
    HARRIS v. THE STATE.
    (374 SE2d 565)
   Pope, Judge.

Defendant Willie C. Harris was convicted of the offense of aggravated battery (OCGA § 16-5-24). On appeal, he asserts the general grounds and argues that his actions were in self-defense and that the injury was accidental.

Although not without dispute, the facts show that after the victim twice refused defendant’s proposal of marriage, the defendant picked up a chair and hit her in her left eye, causing the victim to lose sight permanently in that eye. The evidence also shows that the victim and the defendant had at one time lived together and that during a previous altercation the defendant had hit the victim in her right eye with his fist.

The defendant testified that he did not mean to strike the victim and that he had merely picked up the chair as a defensive maneuver because the victim was attempting to strike him with a metal pipe, which, defendant contends, hit the chair instead of him and bounced back striking the victim in the eye. The victim denies that she picked up a metal pipe or attempted to strike the victim but testified that she did not know whether the defendant’s actions in striking her were accidental or intentional.

“ ‘Where there is a conflict in the testimony of witnesses, their credibility is for the jury, and not this court, to decide.’ Martin v. State, 95 Ga. App. 519 (98 SE2d 105) (1957). See Jamison v. State, 162 Ga. App. 635 (292 SE2d 515) (1982). ‘On appeal of a conviction based on a jury verdict’ the appellate court examines ‘the evidence in a light most favorable to support that verdict5 and resolves ‘all conflicts in favor of the verdict.’ Anderson v. State, 245 Ga. 619, 622 (1) (266 SE2d 221) (1980).

“Applying these precepts, the evidence was sufficient for a rational trier of fact to find the essential elements of the offense charged beyond a reasonable doubt. Magsby v. State, 169 Ga. App. 637 (1) (314 SE2d 473) (1984); Taylor v. State, 178 Ga. App. 817 (1) (344 SE2d 748) (1986) (Beasley, J., concurring specially).” Hosch v. State, 185 Ga. App. 71 (1) (363 SE2d 258) (1987). Accord Flowers v. State, 181 Ga. App. 572 (1) (353 SE2d 69) (1987); Harden v. State, 164 Ga. App. 59 (1) (296 SE2d 372) (1982).

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

Decided October 14, 1988.

Robert M. Bearden, Jr., for appellant.

Willis B. Sparks III, District Attorney, Kimberly S. Shumate, Assistant District Attorney, for appellee.


author: Benham, Judge.

text:
    77076.
    WALKER v. THE STATE.
    (374 SE2d 357)
   Benham, Judge.

Appellant was convicted of aggravated assault. His appeal challenges the sufficiency of the evidence and the unanimity of the jury’s verdict. Finding no error, we affirm the judgment.

1. At trial, the victim testified that he had stopped to get some cold drinks and cigarettes at a gas station his family owned, when he saw appellant nearby. The victim called appellant over to his truck to ask him about settling his account with the store, and appellant responded that he had made an agreement with the victim’s father to pay a little each month to clear the account. The victim then went into the store. When he came out, he mentioned something else about the debt, whereupon appellant came over to the victim’s truck, pulled a knife out of his pocket, and tried to stab the victim in the back. When the victim attempted to restrain his attacker, appellant stabbed him at “the edge of the heart and the artery that goes into the heart.” The victim further testified that he had not threatened appellant in any way, nor had he been armed with any type of weapon at the time of the incident. Appellant testified to the effect that the victim came at him, they started fighting, and appellant stabbed him during the fight in an attempt to defend himself. The evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that appellant committed an act of aggravated assault. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Perez v. State, 182 Ga. App. 628 (1) (356 SE2d 706) (1987).

2. The jury was polled as to its verdict. When one juror was asked, “Was that your verdict, ma’am?” she initially responded, “No.” She then said, “That was my verdict, but it was not from my heart.” When the trial court asked her what she meant, she said that she knew appellant cut the victim “but it was a reason.” The court asked whether it was a reason that was justified under the law, and the juror said, “No. It’s not justified.” The court then asked, “Well, is it your verdict or is it not your verdict?” to which the juror replied, “It’s my verdict.” The trial court asked the juror whether anyone had threatened or coerced her, and she said no. When she was asked whether she had reached the verdict freely and voluntarily, she again said yes. After the trial court completed its poll of the jury, it came back to the juror in question and again asked her the three jury poll questions, and she replied affirmatively to each of them. After the poll of the jury was completed, the trial court began the sentencing hearing for appellant. At that point appellant’s counsel moved for a mistrial based on the juror’s responses to the jury poll, as previously described. Appellant now contends that the trial court erred in failing to return the jury to the jury room for further deliberations and in failing to grant his motion for a mistrial. We find no such errors.

Decided October 14, 1988.

Hugh J. McCullough, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., David C. Walker, Assistant District Attorneys, for appellee.

Appellant did not make the proper motion to have the trial court return the jury to its room for additional deliberation. “ ‘ “(T)he proper motion would have been that the verdict be not received and the jury be directed to retire to their room for further deliberation on the case.” ’ [Cit.] Thus, it was incumbent upon appellant’s counsel to move for further deliberations, and, absent such a request, the trial court was not required to order such deliberations.” Jackson v. State, 184 Ga. App. 123 (361 SE2d 14) (1987). Appellant’s reliance on White v. Seaboard C. L. R. Co., 139 Ga. App. 833 (1) (229 SE2d 775) (1976), is misplaced. In White, this court held that it was unnecessary for either party to move that the jurors be sent back for further deliberations in light of a juror’s statement that the verdict was not his. However, it was clear from the facts in White that the juror did not vote in agreement with the others on one of the issues required to reach the verdict, and so there was no legal verdict. Id. at 836. In appellant’s case, the juror stated that because appellant had no legal justification for his actions, she agreed with the verdict and it was indeed hers. There was no indication that she did not find appellant guilty beyond a reasonable doubt. See Scruggs v. State, 181 Ga. App. 55 (1) (351 SE2d 256) (1986).

For the reasons stated above, we find no error in the trial court’s denial of appellant’s motion for mistrial based on the jurors’ alleged lack of unanimity of verdict. Scruggs, Division 2.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


author: Birdsong, Chief Judge. Beasley, Judge,

text:
    77114.
    HUDGINS v. THE STATE.
    (374 SE2d 566)

   Birdsong, Chief Judge.

The appellant, Larry Hudgins, brings this appeal from his conviction of one count of possession of less than one ounce of marijuana, and one count of use of a license plate upon a motorcycle other than the one to which the license plate was assigned. This is a companion case to Allison v. State, 188 Ga. App. 460 (373 SE2d 273).

On August 15, 1987, Special Agents Claude Nix, Jerry Scott and Dale Thomason of the Georgia Bureau of Investigation, and Special Agent Pete Conley of the Federal Bureau of Investigation, were monitoring a gathering of the Abate Motorcycle Club at Prater’s Mill in Whitfield County. The Sheriff of Whitfield County had requested the assistance of the GBI and the FBI in monitoring this meeting which was expected to have in attendance members of the “Hell’s Angels” and “Outlaws” motorcycle clubs. The officers saw three motorcyclists had pulled off to the side of the road approximately one-half mile west of Prater’s Mill. The officers pulled over to the side of the road, identified themselves, and asked the motorcyclists if “they were having [any] difficulty.” The three individuals, David and Everett Allison, and Larry Hudgins, said they were not. Agent Thomason recognized the Allison brothers as members of the Outlaws motorcycle gang from Knoxville, Tennessee and asked to see their “colors ... in other words, their leather jackets. They pulled those from their motorcycles and allowed Agent Thomason to look at them.” The officers observed a pickax-type handle in a scabbard on the motorcycle driven by Everett Allison and asked for permission to search the persons and motorcycles of the three individuals and Everett Allison responded that he had a pistol under the seat of his motorcycle. Agent Nix removed the concealed weapon, a .38 caliber semi-automatic pistol. Allison was arrested and a search made of his person and his motorcycle. A marijuana cigarette was found in his shirt pocket, and cocaine and LSD tablets were found in his motorcycle bags. David Allison and Larry Hudgins were then patted down for weapons. A pocketknife was found in the pocket of David Allison along with suspected amphetamine tablets. Marijuana was found on appellant Hudgins. Appellant’s motion to suppress was denied and his trial before the judge alone resulted in findings of guilty of possession of marijuana and unlawful use of a license plate. He brings this appeal from the trial judge’s judgment and sentence. Held:

The appellant’s notice of appeal cites both offenses, but his enumeration of error complains only of the denial of his motion to suppress. Thus, we will address only the error enumerated and only upon the bases stated: (1) “. . . the police-citizen encounter was not based upon reasonable suspicion,” and (2) “the seizure of contraband was a product of an illegal arrest.”

1. This “police-citizen encounter” was precipitated by the brothers Allison and Hudgins stopping their motorcycles alongside the highway leading to Prater’s Mill where a motorcycle “club” was having a meeting. Appellant’s counsel informed the court in his brief that “Everett Allison had a mechanical problem with his motorcycle prompting the cyclists to leave the roadway and park in an adjacent field. . . .” When the officers saw the cyclists, they stopped to inquire if “they were having [any] difficulty.” The cyclists denied having any “difficulty.”

County police, including the county sheriff, have general police power to investigate and make arrests (OCGA § 36-8-5) as other law enforcement officials. See generally OCGA §§ 35-8-2 (8); 36-34-2; 36-35-3; Veit v. State, 182 Ga. App. 753, 756 (357 SE2d 113). The GBI is charged the obligations of safeguarding the lives and property of the public and investigating suspected violations of the criminal laws of this state. OCGA §§ 35-2-32 (b); 35-3-4 (b). Hence, the GBI and the FBI were warranted in assisting the Whitfield County Sheriff. In short, the GBI and FBI were properly in the execution of their office and were authorized to be at the place where the Allisons and Hudgins parked their motorcycles.

It is in our society’s general interest to deter unlawful conduct, and our courts are called upon to balance this public interest against the individual’s right under the Fourth Amendment to be free from unreasonable searches and seizures. United States v. Brignoni-Ponce, 422 U. S. 873, 878 (95 SC 2574, 45 LE2d 607). The paramount public interest in law enforcement is substantial and justifies a minimal and momentary intrusion, short of seizure of the person, to question an individual about subject matter which has piqued police suspicion. Radowick v. State, 145 Ga. App. 231 (1) (244 SE2d 346). Such suspicion must be reasonable and articulable. Id. However, a police officer, as well as all citizens, have the liberty to question other persons. United States v. Mendenhall, 446 U. S. 544, 553 (100 SC 1870, 64 LE2d 497). And, the individual questioned has the right to ignore the question and the questioner and walk away. Id. In light of these principles, we examine this “police-citizen encounter.”

The appellant and his companions voluntarily stopped at this location. The officers were properly at that location and stopped to offer assistance. We can find no fault with law enforcement officials offering assistance to a stopped motorist, and absent any evidence to the contrary, we will not assign an ulterior or improper motive to an officer inquiring of a stopped motorist if he is having any difficulty. After stopping, the officers observed a “pickax” type handle, in plain view, in the possession of one of the cyclists. Since a “pickax” handle can be used in a manner to classify it as a deadly weapon (see Miller v. State, 174 Ga. App. 42, 45 (329 SE2d 252); Banks v. State, 169 Ga. App. 571 (314 SE2d 235); and Beard v. State, 155 Ga. App. 654 (271 SE2d 906)), the officer could validly question the cyclist as to his possession of such a potential weapon because it piqued his suspicion. It was an articulable and reasonable basis for questioning a person who voluntarily stopped because of his own reason. Hence, there was no illegal “police-citizen encounter” and we find this portion of the enumerated error to be without merit.

2. Remaining in issue is appellant’s contention that the seizure of marijuana from his person was the product of his illegal arrest. We do not agree. “[T]he Fourth Amendment in no way prohibits voluntary interaction between citizens and police,” and it is “ ‘[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a “seizure” has occurred.’ ” Bothwell v. State, 250 Ga. 573, 576 (300 SE2d 126), U. S. cert. den. 463 U. S. 1210. We have found that the police were authorized to stop and talk to the three cyclists. They were authorized to question one of them as to why he possessed a potentially dangerous weapon when attending this motorcycle club meeting. In addition, our appellate courts have sanctioned the practice of police officers asking a citizen for permission to search. Both-well, supra; Berry v. State, 163 Ga. App. 705 (3) (294 SE2d 562). Everett Allison voluntarily stated that he possessed a weapon, and the officer found it was concealed. Allison was then arrested and subjected to a full search of his person and his motorcycle which revealed other drugs. His possession of a deadly weapon justified a patdown for weapons of his companions for the safety of the officers. Cf. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889). David Allison was then found to possess suspected amphetamines and was arrested. He also had a concealed pistol. There is no evidence that Hudgins was placed under arrest or his liberty to leave was restrained in any way prior to a patdown for weapons. Even if the officer had asked Hudgins to “stop,” and then questioned him, this is not a “seizure” within the meaning of the Fourth Amendment. Sabel v. State, 248 Ga. 10 (1) (282 SE2d 61), U. S. cert. den. 454 U. S. 973. There was no arrest of Hudgins prior to the seizure of marijuana from his person. Accordingly, we have found no reversible error upon the grounds enumerated.

Judgment affirmed.

Banke, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in the judgment but do not join in all that is written.

Hudgins’ patdown was reasonably based on the circumstances, including most importantly that his two companions had already been found in possession of weapons. The police thus were justified in frisking him in order to secure their own safety from weapons which Hudgins would have immediate access to. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). See an explanation of its rationale in Michigan v. Long, 463 U. S. 1032, 1045-1047 (103 SC 3469, 77 LE2d 1201) (1983).

Decided October 14, 1988.

Marcus R. Morris, for appellant.

Jack O. Partain III, District Attorney, Lee R. Taylor, Assistant District Attorney, for appellee.


author: McMurray, Presiding Judge.

text:
    76691.
    LIGHTSEY v. THE STATE.
    (374 SE2d 335)
   McMurray, Presiding Judge.

Defendant Lightsey appeals from his conviction of arson in the first degree. Held:

1. He contends that the trial court erred in denying defense counsel’s midtrial motion for a psychiatric evaluation to determine competency. No plea of mental incompetency to stand trial as provided by OCGA § 17-7-130 was filed prior to trial. However, after defendant had testified and just before the defense rested its case, the public defender asked the court to excuse the jury and continue the case until defendant could be given a psychiatric examination to determine his competency to stand trial and at the time of the alleged crime. The trial court denied the motion as untimely after two days of trial and trial having been previously scheduled for a prior term. When the motion for continuance and psychiatric evaluation was renewed at the close of all evidence, the public defender stated that she did not believe defendant understood what was “going on in here today”; and that while she had originally thought “there was no competency problem,” it had become obvious from his behavior during the trial that “there is something wrong with his thought processes.” The district attorney acceded to the defense’s offer of proof and the court heard witnesses from both sides.

It is clear from the transcript that defendant, who was allowed to assist pro se in his own defense, acted in a somewhat inappropriate manner both before and during the trial and was to some extent belligerent and uncooperative with the lawyers defending him. The public defenders testified that defendant “did the exact opposite” of what they advised him to do at trial, and that his “common sense” seemed “to have left him.” However, the State presented four witnesses (including two of his former parole and probation officers) who testified that they had known defendant for several years before the trial and that he exhibited no discernable changes in his behavior during the trial. They also testified that he had rationally discussed the trial preparations with them and was well aware of the charge against him. That defendant was no stranger to the judicial system was evidenced in the record by convictions and sentences dating back to 1951. Based on the testimony presented and his own observations of defendant throughout the trial, the judge found and ruled that he appeared to know and understand his surroundings; that he had participated in the preparation and defense of his case; and had “quite admirably cross-examined some of the witnesses himself.” Therefore, the motion for psychiatric evaluation was denied.

“[E]ven if a defendant makes no motion for a hearing on the issue of competency if the evidence indicates that there is an issue of competency, the court must inquire into it.” Harris v. State, 256 Ga. 350, 351 (2) (349 SE2d 374) (1986). See Baker v. State, 250 Ga. 187 (297 SE2d 9) (1982). “The trial on the issue of mental competency contemplated by OCGA § 17-7-130 (a) . . . is in the nature of a civil proceeding and the defendant has the burden to prove incompetency by a preponderance of the evidence. [Cit.] The issue raised is whether the defendant is capable of understanding the nature and object of the proceedings, whether he comprehends his own condition in reference to such proceedings, and whether he is capable of rendering his attorney assistance with his defense. [Cit.]” Lindsey v. State, 252 Ga. 493, 496 (314 SE2d 881) (1984). “[T]he relevant inquiry is not whether the defendant would assist in his defense, but whether he could do so. [Cit.]” Levitt v. State, 170 Ga. App. 32, 33 (1) (316 SE2d 6) (1984).

Where, as here, defense counsel has not filed a special pretrial plea of insanity or mental incompetency to be tried pursuant to OCGA § 17-7-130, “the trial court ha[s] no mandatory duty to impanel a special jury to determine that issue at this stage of the proceedings. [Cit.]” Dowdy v. State, 169 Ga. App. 14, 15 (1) (311 SE2d 184) (1983). See also Standridge v. State, 158 Ga. App. 482 (280 SE2d 850) (1981). Therefore, the trial court did not abuse its discretion in failing to order a special trial on the basis of the testimony proffered on the motion for continuance. See Dowdy, supra.

Likewise, only “where a showing is made that the defendant’s sanity is likely to be a significant factor at trial [is] the [S]tate required to provide an indigent defendant with access to the assistance of a competent psychiatrist in preparing the defense.” Lindsey v. State, 254 Ga. 444, 448 (330 SE2d 563) (1985). See Ake v. Oklahoma, 470 U. S. 68 (105 SC 1087, 84 LE2d 53) (1985). In the case sub judice, the judge not only considered the offer of proof, but had ample opportunity to observe defendant’s behavior and demeanor throughout the proceedings before denying the request for a psychiatric evaluation. “Starting from the presumption of mental competency, and drawing all reasonable deductions from the [proffer of] evidence . . .,” we thus further conclude that the trial court did not commit reversible error in denying defendant’s midtrial motion for a psychiatric evaluation. Davenport v. State, 170 Ga. App. 667, 668 (317 SE2d 895) (1984). Accord Jackson v. State, 180 Ga. App. 774 (1) (350 SE2d 484) (1986). Compare Holloway v. State, 257 Ga. 620 (361 SE2d 794) (1987); Harris v. State, 181 Ga. App. 358, 359 (1) (352 SE2d 226) (1986).

Decided September 15, 1988

Rehearing denied October 17, 1988

Thomas M. Hackel, for appellant.

Harry D. Dixon, Jr., District Attorney, Richard E. Currie, Assistant District Attorney, for appellee.

2. Defendant asserts error in allowing an attorney witness to testify in regard to conversations between them when defendant was purportedly seeking legal assistance. This testimony shows that no attorney-client relationship ever existed. Furthermore, even if defendant’s motion to suppress the accused’s statements be viewed as raising an objection, on the ground that the conversations were confidential and protected by the attorney-client privilege, no ruling on this motion was ever made, and counsel made no further objection on the grounds of an alleged attorney-client relationship to the testimony of the attorney. Since no ruling was invoked on defendant’s motion and no further objection made, we have nothing to review. Wilkerson v. State, 177 Ga. App. 469, 470 (3) (339 SE2d 747) (1986); Durham v. State, 181 Ga. App. 155, 157 (351 SE2d 683) (1986).

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76768.
    HAWES v. EMORY UNIVERSITY.
    (374 SE2d 328)
   Pope, Judge.

In this dispute over the use of an endowment fund, we granted interlocutory review of the trial court’s grant of defendant Emory University’s motion for summary judgment.

In 1974 and 1975, plaintiff Grace Steell Hawes made two “transfers” to Emory University, totaling nearly $65,000. Emory was to use the money to create the Ellington Charles Hawes Endowment Fund. The Fund would provide scholarships to needy students meeting certain criteria.

A letter from Dr. Sanford Atwood, president of Emory University, to Hawes details the parties’ understanding of the operation of the Fund. All scholarships would go to graduates of Thomson High School from McDuffie County and would be based on financial need. “First priority” was a scholarship for a music major. A “subsequent . . . or simultaneous” award would be given to a medical student. “Subsequent to the completion of the initial awards,” Emory would use income from the Fund to aid students in the medical area, excluding nursing. Hawes confirmed these provisions “without correction.”

Between 1977 and 1983, ten awards were made to four different students. None of the students were music majors or medical students. All were graduates of Thomson High School from McDuffie County and all were studying medical areas other than nursing. When Hawes learned how Emory was using the Fund, she demanded return of the principal and interest. Emory refused, but indicated it would endeavor to resolve the disagreement. On September 23, 1982, Hawes filed this action to regain the principal and interest of The Endowment Fund. This appeal follows the trial court’s order of February 9, 1988, granting summary judgment to Emory University. Held:

Hawes contends the trial court erred in determining that the transactions here were in the nature of gifts. According to Black’s Law Dictionary, a gift is a “voluntary transfer of personal property without consideration.” Rodgers v. Ga. Tech Athletic Assn., 166 Ga. App. 156, 162 (2b) (303 SE2d 467) (1983). OCGA § 13-3-42 provides, “(a) To constitute consideration, a performance or a return promise must be bargained for by the parties to a contract; (b) A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.” Although Hawes and Emory obviously discussed the way the fund was to be used, and although Hawes obviously wanted the money to be disbursed as she had indicated in these discussions, there is no indication in the record that Hawes donated the money to Emory in order to secure Emory’s promise to use it in a certain way.

“To constitute a valid inter vivos gift, ... (1) The donor must intend to give the gift; (2) The donee must accept the gift; and (3) The gift must be delivered. . . .” OCGA § 44-5-80. The letters and receipts in the record amply support the trial court’s conclusion that the donation was given, accepted, and delivered. Accordingly, the trial court did not err in granting summary judgment to Emory.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

Decided September 8, 1988

Rehearing denied October 17, 1988

John W. Timmons, Jr., for appellant.

Gerald F. Handley, Peter K. Kintz, Scott Graham, for appellee.


author: Banke, Presiding Judge. Beasley, Judge,

text:
    76857.
    REDDING v. THE STATE.
    (374 SE2d 339)
   Banke, Presiding Judge.

The appellant was given consecutive sentences for armed robbery and aggravated battery after pleading guilty to both offenses. On appeal, he contends that the court was not authorized to sentence him for both offenses because they were established by the same conduct. Held:

One crime is included in another as a matter of fact if it is established by proof of the same or less than all of the facts used to prove the other. See OCGA § 16-1-6 (1). A defendant may be tried for both offenses under such circumstances but may not be convicted of both. See OCGA § 16-1-7 (a) (1). See generally State v. Estevez, 232 Ga. 316 (1) (206 SE2d 475) (1974). This right to be free of multiple convictions for the same conduct has been referred to as the substantive bar against double jeopardy, and it is not waived either by the defendant’s entry of a guilty plea or by his failure to assert it in the trial court. See Blackledge v. Perry, 417 U. S. 21 (94 SC 2098, 40 LE2d 628) (1974); McClure v. State, 179 Ga. App. 245 (345 SE2d 922) (1986).

It is clear from the indictment and from the transcript of the guilty plea hearing in the present case that the appellant’s aggravated assault conviction was based on the identical acts of violence through which he effected the taking of the victim’s money. Compare Coaxum v. State, 146 Ga. App. 370 (3) (246 SE2d 403) (1978) (where the aggravated assault conviction was based on violent acts which were “gratuitous and unconnected with the theft of the victim’s money”). Thus, while it was possible to prove the aggravated battery without establishing all of the conduct needed to prove the armed robbery, it was not possible to prove the armed robbery without simultaneously establishing all of the conduct upon which the aggravated battery conviction was predicated. It follows that the aggravated battery merged with the greater offense of armed robbery, and the sentence imposed for the aggravated battery is consequently vacated. Accord Hizine v. State, 148 Ga. App. 375 (1) (251 SE2d 393) (1978). See also Hambrick v. State, 256 Ga. 148 (4) (344 SE2d 639) (1986); Moreland v. State, 183 Ga. App. 113, 115 (1) (358 SE2d 276) (1987); Luke v. State, 171 Ga. App. 201 (2) (318 SE2d 833) (1984). The conviction and sentence for armed robbery are, however, affirmed.

Judgment affirmed in part and vacated in part.

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

Beasley, Judge,

dissenting.

1. The question ruled on is raised for the first time on appeal. Defendant never challenged the court’s authority to sentence on both counts, when he pled guilty to both counts, even though the court made clear that it would sentence on each and what the maximum sentence was for each of the two crimes. He could have withdrawn his plea as a matter of right at that time, as the court advised him prior to sentencing. OCGA § 17-7-93. Nor did defendant seek to set aside or vacate the sentence on the aggravated battery charge, as he now demands.

The trial court had no opportunity to consider the question and thus made no ruling thereon for us to review. In this posture, the question is not ripe for determination. Ga. Const. 1983, Art. VI, Sec. V, Par. Ill; Gardiner v. State, 252 Ga. 422, 423 (2) (314 SE2d 202) (1984). As represented in Scott v. State, 172 Ga. App. 725, 727 (3) (324 SE2d 565) (1984): “[This question] not having been raised and passed upon in the trial court, nothing is presented for review in this Court.”

Neither of the cases cited in the majority opinion meet or resolve this crucial procedural defect. In both of them, as well as in Clark v. State, 144 Ga. App. 69 (240 SE2d 270) (1977), a case relied on in the majority-cited case of McClure v. State, 179 Ga. App. 245 (345 SE2d 922) (1986), the lower court had made a ruling which was being reviewed by the appellate court. That is what is absent here. The majority has undertaken an original ruling, not a review of a lower court ruling.

2. Even if the question were properly before us, it should be resolved by affirmance of the trial court’s judgment imposing two sentences, because there were two crimes as a matter of law and as a matter of fact.

The substantive aspect of the double jeopardy principle is violated if one is convicted (construed to apply to sentence rather than the conviction which precedes it, because its prohibition is against double punishment) of two crimes arising from the same criminal conduct. State v. Estevez, 232 Ga. 316, 319 (206 SE2d 475) (1974); OCGA §§ 16-1-6; 16-1-7. As shown there, one crime may be included in another as a matter of law or as a matter of fact.

Aggravated battery, OCGA § 16-5-24 (a), is not included in armed robbery, OCGA § 16-8-41 (a), as a matter of law because at least one element is different. As relates to the law of this case, aggravated battery requires “maliciously causing bodily harm to another by . . . seriously disfiguring his body . . . .” Armed robbery, on the other hand, does not require bodily injury but only the taking of property from another “by use of an offensive weapon.” The “use” may fall short of inflicting bodily injury and still constitute armed robbery. See Evans v. State, 173 Ga. App. 655, 657 (2) (327 SE2d 784) (1985). This latter crime requires the taking of property, which is not an element of aggravated battery. See McCulligh v. State, 169 Ga. App. 717, 721 (4) (314 SE2d 724) (1984). See also Jackson v. State, 164 Ga. App. 487 (1) (297 SE2d 502) (1982), which distinguishes the elements in simple battery and armed robbery.

Under the indictment and admitted facts here, the crimes are separate as a matter of fact as well. As to the indictment, the armed robbery count charged that defendant took property by use of a board to inflict wounds to the victim’s head and face. The aggravated battery count charged that defendant disfigured the victim’s body by hitting him with the board so as to cause permanent scars to his head.

Much depends on the wording of the indictment, as pointed out in Coaxum v. State, 146 Ga. App. 370 (3) (246 SE2d 403) (1978), as it is the indictment which delineates the specific acts charged as crimes. That the appellate courts are cognizant of the importance of this aspect of the question also appears in the majority-cited cases of Hizine v. State, 148 Ga. App. 375 (1) (251 SE2d 393) (1978); Hambrick v. State, 256 Ga. 148 (4) (344 SE2d 639) (1986), and Luke v. State, 171 Ga. App. 201 (2) (318 SE2d 833) (1984). See also Harvey v. State, 233 Ga. 41, 42 (1) (209 SE2d 587) (1974).

Of course, in addition to the indictment charging separate acts as separate crimes, the evidence of one act may not be “used up” in proving the other crime, else the two charges will merge. Haynes v. State, 249 Ga. 119, 120 (2) (288 SE2d 185) (1982); OCGA § 16-1-6 (1).

Defendant admitted he hit the victim twice. He first hit him from behind, intending to just knock him out, grab the purse, and run. This constituted completion of the aggravated battery, as all elements were then present, in conformity with the charge. Had defendant run away at that point, his action still would have made up the crime of aggravated battery.

But defendant went further in his actions. When the initial blow to the head did not render the victim unconscious, and he turned around to fight his assailant, the defendant hit him in the face with the board, fracturing the facial bones around the eye. This occurred after the first blow and after defendant demanded and the victim refused the money, which occurred between the two blows. As a result of the second blow, the purse fell and defendant lifted the money out of it and ran. This sequence of events is in the defendant’s own words and confirms what the investigating officer reported.

Decided September 19, 1988

Rehearing dismissed October 17, 1988.

Larry B. Mims, for appellant.

David E. Perry, District Attorney, for appellee.

Thus the armed robbery charge was not made up of the same facts as the aggravated battery charge. State v. Estevez, supra. As in Lambert v. State, 157 Ga. App. 275 (277 SE2d 66) (1981), and Harvey supra, there was no merger of offenses such as would allow only one sentence, and defendant could properly be punished for both acts.

I am authorized to state that Presiding Judge Deen and Judge Pope join in this dissent and that Judge Carley concurs in Division 2 of this dissent.


text:
    77028.
    GREER v. THE STATE.
    (374 SE2d 337)
   McMurray, Presiding Judge.

Defendant appeals his conviction of the offense of burglary. Held:

1. Defendant’s first two enumerations of error raise an issue of whether the trial court erred in permitting the jury to learn that defendant’s co-indictee pled guilty to the same offense of burglary upon which defendant was tried. The enumerations challenge the admission of evidence as to the co-indictee’s plea, comments thereon, and the trial court’s refusal to “redact” the indictment before the indictment was sent out to the jury.

We have acknowledged a “rule of inadmissibility with regard to a non-testifying co-indictee’s guilty plea. The cases which apply this rule of inadmissibility rely upon the language of OCGA § 24-3-52 and, based upon the consequent irrelevancy or incompetency of that guilty plea as proof of the guilt of the defendant on trial, hold that it cannot be used as substantive evidence ‘against’ him. [Cits.]” Foster v. State, 178 Ga. App. 478, 479 (343 SE2d 745). OCGA § 24-3-52 is inapplicable to the case sub judice since the co-indictee took the stand and was subject to cross-examination by defendant’s attorney. Lattimore v. State, 175 Ga. App. 756, 757 (5) (334 SE2d 701); Jones v. State, 169 Ga. App. 4, 6 (6) (311 SE2d 485). Also, since the jury was instructed that the co-indictee’s guilty plea was not to be used as evidence of defendant’s guilt there was no error. See Foster v. State, 178 Ga. App. 478, 480, 481, supra. Furthermore, the trial court’s leading questions to the co-indictee did not amount to a prohibited comment on the evidence since the questions propounded by the trial court did not constitute expressions or intimations of opinion as to what has or has not been proved or as to the guilt of the accused. Cannon v. State, 179 Ga. App. 142, 143 (2) (345 SE2d 623).

Decided September 15, 1988

Rehearing denied October 17, 1988.

Christopher C. Edwards, for appellant.

William G. Hamrick, Jr., District Attorney, Agnes McCabe, Assistant District Attorney, for appellee.

2. Defendant also enumerates as error the denial of his motion for mistrial based on the assistant district attorney’s statement during closing argument that the State does not undertake the prosecution of cases frivolously. Defendant argues that this statement was a thinly shrouded expression of personal opinion as to defendant’s guilt.

It is well settled that a district attorney may not state to the jury his personal belief in the defendant’s guilt. Walker v. State, 132 Ga. App. 274, 275 (3) (208 SE2d 5). However, assuming that the statement to which defendant objected may be viewed as implying a belief in the defendant’s guilt, we find no blatant misconduct. The record does not show that the remark was specifically addressed to defendant and we find that it is highly probable that error, if any, did not contribute to the verdict. We find no reversible error. Castell v. State, 250 Ga. 776, 789 (301 SE2d 234).

Judgment affirmed.

Pope and Benham, JJ., concur.


author: Carley, Judge.

text:
    77045.
    MORRIS-BANCROFT PAPER COMPANY, INC. v. COLEMAN.
    (374 SE2d 544)
   Carley, Judge.

Appellee-plaintiff was injured by chlorine gas which leaked from the cylinder in which it was stored. Alleging negligence, appellee brought suit and named the appellant-distributor of the cylinder of chlorine gas as one of the defendants. The trial court denied appellant’s motion for summary judgment, but certified its order for immediate review. This appeal results from the grant of appellant’s application for an interlocutory appeal from the denial of its motion for summary judgment.

Appellant enumerates the denial of its motion for summary judgment as error, urging that, under the evidence of record, no genuine issue of material fact remains as to its liability. In support of its motion, appellant did not rely solely upon the results of the discovery process, but also offered the affidavit of its president and the affidavit of an expert. Appellee offered no additional evidence in opposition to appellant’s motion. Accordingly, if, as appellant asserts, the evidence of record, including but not limited to the affidavits submitted by appellant, was sufficient to pierce the allegations of the complaint so as “to establish as a matter of law that [appellee] could not recover under any theory fairly drawn from the pleadings and the evidence,” then it was error for the trial court to deny the motion for summary judgment. Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981).

In urging that its motion was erroneously denied, appellant places great reliance upon the affidavit of its president. OCGA § 9-11-56 (e) mandates that “[supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” At the outset, however, the affidavit of appellant’s president contains the statement that “the following facts are true and correct to the best of his knowledge and belief.” (Emphasis supplied.) This statement clearly does not evince compliance with the “personal knowledge” requirement of OCGA § 9-11-56 (e). “An affidavit based upon ‘the best of his knowledge and belief is nothing more than the affiant’s opinion given without any demonstrated basis of knowledge. [Cit.]” (Emphasis supplied.) Planters Rural Tel. Coop. v. Chance, 108 Ga. App. 146, 147-148 (2) (132 SE2d 90) (1963). “ ‘It is basic that unsworn allegations are not evidence; nor do they rise to that level when accompanied by an affidavit made, not upon personal knowledge, but upon the “best of (affiant’s) knowledge,” which is just a variation of our old friend “information and belief.” [Cits.]’ [Cit.]” Spires v. Relco, Inc., 165 Ga. App. 4, 5 (2) (299 SE2d 58) (1983). “Every [item set forth as a fact] in the [affidavit] may be false, and yet each one may be true to the best of the knowledge and belief of the affiant.” Bryan v. Ponder, 23 Ga. 480, 484 (1857).

Accordingly, the issue for determination is whether, notwithstanding the affiant’s initial ineffectual reference to “the best of [his] knowledge and belief,” the affidavit of appellant’s president otherwise evinces compliance with the “personal knowledge” requirement of OCGA § 9-11-56 (e). This requires a consideration of each of the specific “facts” set forth in the affidavit. “The ‘personal knowledge’ requirement set forth in OCGA § 9-11-56 (e) ([cit.]) is met ‘where the contents of the [affidavit] indicate that material parts of it are statements within the personal knowledge of the [affiant],’ as opposed to being made upon information and belief. [Cit.]” Logan v. American Bankers &c. Co., 168 Ga. App. 647, 649 (1) (310 SE2d 263) (1983). In addition to the affiant’s initial statement, the following general statement was subsequently made in the body of his affidavit: “The facts contained in this affidavit are made from my own personal knowledge and from my capacity with [appellant.]” (Emphasis supplied.) From a review of the specific “facts” set forth in the affidavit, however, it is not possible to ascertain which of them are conclusively based upon the affiant’s personal knowledge and which of them may be based merely upon information that he received, in his capacity as appellant’s president, from a source other than his own personal knowledge. Compare Spires v. Relco, Inc., supra; Smith v. Gibbs, 145 Ga. App. 647 (244 SE2d 615) (1978); Smith v. Ragan, 140 Ga. App. 33, 34 (1) (230 SE2d 89) (1976). Moreover, when consideration is given to the other evidence of record, it would appear that a considerable number of the material “facts” set forth in the affidavit of appellant’s president are more than likely based upon his mere capacity as an officer of appellant rather than upon his personal knowledge. Those “facts” are entitled to no evidentiary consideration on the motion for summary judgment. “If it appears that any portion of the affidavit was not made upon the affiant’s personal knowledge, or if it does not affirmatively appear that it was so made, that portion is to be disregarded in considering the affidavit in connection with the motion for summary judgment.” Chandler v. Gately, 119 Ga. App. 513-514 (1a) (167 SE2d 697) (1969).

Decided September 27, 1988

Rehearing denied October 17, 1988

Marvin W. McGahee, for appellant.

Edward E. Boshears, Donna L. Crossland, for appellee.

When those portions of the affidavit of appellant’s president which do not affirmatively appear to have been made on his personal knowledge are disregarded, it cannot be said that a genuine issue of material fact does not remain as to appellant’s liability in negligence for appellee’s injury. Construing the evidence of record most strongly against appellant, as the movant for summary judgment, its alleged negligent handling of the cylinder has not been eliminated as the proximate cause of the leak, and, consequently, as the proximate cause of appellee’s injuries. Compare Pierce v. Liberty Furn. Co., 141 Ga. App. 175 (2) (233 SE2d 33) (1977). Accordingly, the trial court correctly denied appellant’s motion for summary judgment.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


text:
    77240.
    HARMON v. REAMES et al.
    (374 SE2d 539)
   McMurray, Presiding Judge.

Plaintiff brought this negligence suit against defendants in the Superior Court of Fulton County. It was alleged that defendants owned and operated a hotel and convention center and that they rented their convention facilities to various companies for conventions and shows; that on October 22, 1984, plaintiff came upon defendants’ premises for the purpose of delivering and installing a display at a telecommunications convention; that, when he arrived at defendants’ loading dock, plaintiff was directed by an employee of defendants to transport the display materials down an inclined ramp; that the display materials were boxed in wheeled crates; that as plaintiff rolled a crate down the ramp, the wheels struck “a clump of concrete on the ramp’s surface,” causing the crate to fall; and that the falling crate struck plaintiff in the face and severed his nose.

As to defendants’ negligence, plaintiff alleged that the loading area and ramp of the hotel and convention center were maintained in a dangerous condition. In this regard, it was asserted that clumps of concrete were permitted by defendants to protrude above the surface of the ramp.

Defendants answered the complaint and denied they were liable to plaintiff. Thereafter, following discovery, defendants jointly moved for summary judgment. The trial court granted defendants’ summary judgment motion and plaintiff appealed.

The evidence adduced below shows the following: Plaintiff was employed as a “leadman” by a company which installed and dismantled convention exhibits. In this capacity, plaintiff installed various exhibits at conventions throughout the country.

On October 22, 1984, plaintiff and a co-employee arrived at defendants’ hotel and convention center to install a convention exhibit. Plaintiff had not been upon defendants’ premises previously. Plaintiff and his co-worker were met by a truck driver who arrived in a van in which the display was transported.

The display materials were packaged in large wooden crates. The crates stood 5 feet tall and 4 feet wide and they weighed more than plaintiff (about 145 lbs.). Wheels were affixed to the bottom of them.

Plaintiff was instructed by one of defendants’ employees that the crates would have to be moved down a ramp in order to gain access to the convention area. Plaintiff inspected the rampway area for about 10 to 15 minutes. Then, he began to roll the crates down the ramp.

Plaintiff could have asked his co-worker for assistance in moving the crates. He chose not to do so.

Plaintiff rolled the crates one at a time down the incline toward an access door. He stood in front of the crates, with his back to the door as he eased each crate down. He did not notice any bumps or obstructions on the rampway.

Plaintiff moved two crates down the ramp without incident. It was the third crate which fell on plaintiff. As it was rolled down the ramp, plaintiff felt a “bump.” In an instant, plaintiff’s right foot was caught under a wheel and the crate toppled over, striking him on the face.

Plaintiff realized immediately that his nose had been severed. He was taken to the hospital where he underwent the first of many reconstructive surgeries.

Via deposition, plaintiff averred that he did not know what caused the crate to topple over. In this regard, he testified that he did not see what the wheel of the crate struck; that he did not see any hardened concrete on the ramp; and that the ramp “really didn’t pose any problems as far as moving the crates” was concerned.

In opposition to defendants’ motion for summary judgment, plaintiff submitted the affidavit of Victor Michiels, Jr., an architect. He averred that the grade of the ramp (approximately 9 percent) was “dangerous for use by pedestrians with a burden of any type.” In a deposition, the architect averred that he first visited defendants’ premises on October 15, 1986, nearly two years after plaintiff was injured; that generally the ramp was finished smoothly but there were irregular areas in which concrete droppings were allowed to harden; that the worst concrete dropping was approximately one inch high; that the concrete droppings were plainly visible; and that if plaintiff spent 10 to 15 minutes looking over the rampway, he probably could have seen the concrete droppings. The architect was unable to state, however, when the concrete droppings fell upon the rampway.

Plaintiff also submitted his own affidavit in opposition to defendants’ summary judgment motion. Therein, he averred that the front wheel of the third crate struck an “obstruction” on the ramp which caused the crate to fall. Held:

Plaintiff admitted in his deposition that he did not know what caused the crate to topple over on him. Although he stated in his affidavit that the wheel of the crate hit an “obstruction,” he deposed that he did not know what the wheel of the crate struck. Plaintiff averred that he did not see any hardened concrete in the area. He concluded by stating that the ramp did not pose any problem with regard to the moving of the crates. Thus, plaintiff was unable to identify just what caused the crate to fall. See Kenny v. M & M Supermarket, 183 Ga. App. 225 (358 SE2d 641).

Given this state of the record, we must conclude that the trial court properly granted defendants’ motion for summary judgment. The mere fact that the crate toppled over on plaintiff does not establish fault on the part of defendants. “ ‘Our Supreme Court has held that “proof of nothing more than the occurrence of the fall is insufficient to establish the proprietor’s negligence.” . . .’” J. C. Penney Co. v. Smith, 173 Ga. App. 612, 613 (327 SE2d 574). Accord Roberts v. Gardens Svcs., 182 Ga. App. 573 (356 SE2d 669).

Based on the deposition testimony and affidavit of the architect, plaintiff would have us suppose that the wheel of the crate struck a hardened lump of concrete. The fallacy of this supposition is that the architect viewed the ramp nearly two years after the crate toppled over. He was unable to state whether the hardened concrete was present when plaintiff was injured. Moreover, the supposition is rebutted by the deposition testimony of plaintiff who averred he saw no hardened concrete patches on the rampway.

Plaintiff contends a genuine issue of material fact exists with regard to the dangerousness of the grade of the ramp. We disagree. Although the architect opined that the grade of the ramp was dangerous for a pedestrian with a burden, there is no evidence that the grade of the ramp caused the crate to topple over. As noted above, plaintiff did not know what caused the crate to fall. And he stated that the ramp itself did not pose any problems when it came to moving the crates.

Even if we were to conclude that a genuine issue of material fact exists as to whether defendants’ negligence caused the third crate to fall, we must nevertheless affirm the grant of summary judgment to defendants. Plaintiff inspected the rampway for 10 to 15 minutes before he began rolling down the crates. He rolled two crates down the ramp before he descended with the third crate. Accordingly, plaintiff was well aware of the condition of the ramp and his knowledge was, or at least should have been, equal to that of defendants. (“ ‘An invitee is under an equal duty with the owner to use [his] sight to discover any defect or dangers. (Cits.)’ [Cit.]” Roberts v. Gardens Svcs., 182 Ga. App. 573, 574, supra.) Thus, it cannot be said that defendants possessed superior knowledge of the alleged danger. And, it follows, defendants cannot be held liable for plaintiff’s injuries: “ ‘The basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition.’ ” Rogers v. Atlanta Enterprises, 89 Ga. App. 903, 906 (81 SE2d 721). Accord Westall v. M & M Supermarkets, 174 Ga. App. 155 (329 SE2d 237); White v. Fred F. French Mgt. Co., 177 Ga. App. 661 (340 SE2d 276).

Plaintiff urges us to reverse the grant of summary judgment on the ground that he did not fully appreciate the risk of rolling the crates down the ramp. See generally Atkinson v. Kirchoff Enter prises, 181 Ga. App. 139 (351 SE2d 477). This we cannot do. The condition of the ramp, a “structural fixture,” was “both obvious and static.” Atkinson, supra at 140. Accordingly, any danger should have been discernible by plaintiff. See Gyles, Inc. v. Turner, 184 Ga. App. 376 (361 SE2d 538).

Decided September 21, 1988

Rehearing denied October 17, 1988

Sanford J. Gerber, for appellant.

Michael J. Rust, for appellees.

Judgment affirmed.

Pope and Benham, JJ., concur.


author: Deen, Presiding Judge.

text:
    77402.
    LAYSON v. THE STATE.
    (374 SE2d 556)
   Deen, Presiding Judge.

Appellant Layson and a male companion, one Brand (not a party to the instant appeal, but like Layson a convicted felon), accompanied Layson’s “girl friend,” Cheryl Fincher, to the house where Ms. Fincher’s seventeen-year-old daughter, Cherie, was “staying” with a young man, Bobby Coach. They drove there in an automobile borrowed from a female friend of Ms. Fincher, who was spending a few days at Ms. Fincher’s house while recuperating from influenza.

Upon arrival at Coach’s house, Ms. Fincher attempted to persuade her daughter to return home with her and had succeeded in getting her as far as the front porch when a scuffle broke out among Coach, Brand, appellant Layson, and another male occupant of Coach’s house, and firearms were brandished. Cherie was shot in the head, and her mother and Brand carried her to the borrowed car while Layson held a gun on Coach and informed the latter that he was a GBI agent. According to testimony, Layson initially held the gun at Coach’s neck, but gradually moved the weapon down his body and then shot Coach in the knee. Cherie was taken to the hospital, where she died of blood loss and swelling of the brain tissue. A neighbor placed a tourniquet on Coach’s leg, and he was subsequently treated.

Officers investigating the incident found blood on Coach’s front porch and in the borrowed automobile. The car’s owner testified that there had been no blood present before the car was borrowed. Analysis of wipings taken from the hands of the dead girl showed that she had not fired a gun. There was other evidence, as well, indicating that events occurred as outlined, supra. Brand and Layson were apprehended and charged with murder and possession of a firearm by a convicted felon, and Layson was also charged with aggravated assault. They were tried jointly, and Brand was convicted on both charges, while Layson was found guilty of aggravated assault and possession of a firearm by a convicted felon. After filing an appeal with this court, Layson filed an extraordinary motion for new trial based on the alleged discovery that Ms. Cheryl Fincher had been granted immunity in return for testifying at trial.

This court ordered the case remanded to the trial court pending a ruling on the extraordinary motion. The trial court made findings of fact and conclusions of law and denied Layson’s motion on the grounds that Ms. Fincher had not been granted immunity; that, moreover, her testimony had been favorable rather than unfavorable to Layson and his co-defendant (she insisted that the shootings — especially that of her daughter — had been accidental); and that, further, the prosecution’s decision not to charge Ms. Fincher with any crime was not a material factor which would require granting a new trial to Layson or Brand. Layson has now appealed the order denying the extraordinary motion for new trial and his convictions, as well. He enumerates as error the sufficiency of the evidence, the denial of his motion for severance, the denial of the right to speedy trial, and the alleged failure to disclose that a material witness had been granted immunity. Held:

1. Our scrutiny of the transcript of the extraordinary motion for new trial and the remainder of the record reveals clearly that sufficient competent evidence was adduced at trial to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt both of aggravated assault and of possession of a firearm by a convicted felon. In addition to other evidence, testimony placed Layson at the crime scene at the appropriate time, and police officers found in his room a pistol of the same caliber as that which wounded Coach. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). This enumeration has no merit.

2. Examination of the record reveals that, although defense counsel had mentioned in a bench conference that he planned to move for severance of the defendants and/or the charges, no such motion was ever formally made. Moreover, in the fact situation of the instant case, the criteria for granting severance, as set forth in Stevens v. State, 165 Ga. App. 814, 817 (302 SE2d 724) (1983), would not have mandated severance. This enumeration, too, is without merit.

3. The record indicates that approximately thirteen months elapsed between Layson’s arrest and his trial. The factors which Georgia law requires this court to consider in determining whether an appellant has unfairly been denied a speedy trial include (1) the length of the delay, (2) the reasons for the delay, (3) whether the accused asserted his right to speedy trial, and (4) whether or not the delay had a prejudicial effect. Buxton v. State, 253 Ga. 137 (317 SE2d 538) (1984). The record in the instant case reveals that Layson never demanded a speedy trial and did not move for acquittal on the basis of lack of speedy trial. The record further indicates that, while the trial was initially delayed by the necessity of redrawing a faulty indictment, a delay of more than four months occurred because defense counsel twice requested postponement because of his own ill health. Moreover, appellant has not contended or demonstrated that his defense suffered any prejudice resulting from the delay in the case’s actually coming to trial. See Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972). This enumeration also lacks merit.

Decided October 3, 1988

Rehearing denied October 17, 1988

Philip L. Ruppert, for appellant.

Willis B. Sparks III, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.

4. Examination of the record reveals that Ms. Fincher was never offered, promised, or granted immunity from prosecution as contemplated by OCGA § 24-9-28 (a). The trial court therefore properly denied the extraordinary motion for new trial, and this enumeration, too, is without merit.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    77457.
    ANDERSON v. BIBB SUPPLY COMPANY, INC.
    (374 SE2d 556)
   McMurray, Presiding Judge.

Plaintiff Bibb Supply Company, Inc., filed its complaint alleging that defendants Potter and Rayfield, Inc., and Anderson are indebted to plaintiff. No answer was filed by either defendant and a default judgment against both defendants was entered on October 23, 1987. Subsequently, on November 3, 1987, defendant Anderson filed his motion to open default judgment predicated upon the provisions of OCGA § 9-11-55 (b). This appeal by defendant Anderson is taken from the order denying his motion to open default judgment. Held:

“Defendant’s motion to open default, made after entry of final judgment, was properly denied. The provisions of [OCGA § 9-11-55 (b)] regarding the opening of default became inapplicable upon entry of a final judgment. John M. Murray, Jr. Constr. Co. v. Tuxedo Plumbing & Heating Co., 149 Ga. App. 101, 102 (253 SE2d 465).” Southwest Community Hosp. &c. Center v. Thompson, 165 Ga. App. 442, 443 (2) (301 SE2d 501). See also Allstate Ins. Co. v. Travelers Ins. Co., 249 Ga. 504, 506 (3) (291 SE2d 535).

Decided September 28, 1988

Rehearing denied October 17, 1988.

Ronald C. Harrison, Patrick J. Gibbs, for appellant.

Jeffrey C. Hamling, for appellee.

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76457, 76458.
    EVI EQUIPMENT, INC. v. NORTHERN INSURANCE COMPANY OF NEW YORK; and vice versa.
    (374 SE2d 788)
   McMurray, Presiding Judge.

Northern Insurance Company of New York (“Northern”) instituted a declaratory judgment action against EVI Equipment, Inc. (“EVI”) to determine the extent of its liability to EVI under a business liability insurance policy. Northern and EVI filed opposing motions for summary judgment, each seeking favorable declarations as to their rights and duties under the policy based on the following undisputed facts:

EVI is in the business of selling storage racks and shelving. Northern issued to EVI a general business liability insurance policy which provided that “[Northern] will pay on behalf of [EVI] all sums which [EVI] shall become legally obligated to pay as damages because of . . . property damage to which this insurance applies, caused by an occurrence, and [Northern] shall have the right and duty to defend any suit against [EVI] seeking damages on account of such . . . property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient . . . .” (Emphasis supplied.) In the event of an “occurrence,” the policy required EVI to provide Northern “written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to time, place and circumstances thereof and the names and addresses of the . . . available witnesses ... as soon as practicable.” (Emphasis supplied.)

In the fall of 1983, M & W Distribution Services, Inc. (“M & W”) negotiated with EVI to purchase heavy duty racks and shelving equipment. M & W required racks that were compatible with existing storage racks in its warehouse. EVI inspected M & W’s warehouse and assured M & W that it could supply merchandise that was interchangeable with M & W’s existing storage system. However, EVI warned M & W that the existing racks were damaged, were inadequately constructed and were unlikely to remain stable. Consequently, EVI recommended that M & W purchase and install replacement parts for its damaged racks, reconstruct its storage system by attaching the racks to the warehouse wall and floor and purchase and install rack safety fixtures and stabilizing equipment. M & W did not follow these recommendations and instead ordered from EVI only basic rack and shelving storage equipment.

M & W installed the EVI equipment in early 1984 and on March 12, 1984, M & W informed EVI of a “rack failure” at its warehouse. EVI immediately investigated the incident and concluded that the damage was due to M & W’s failure to follow EVI’s advice with regard to constructing the failed storage system and because M & W exceeded the weight capacity of the storage racks.

In a letter dated March 23, 1984, M & W informed EVI that it did not exceed the weight capacity of its storage system and concluded that the “rack failure” was due to “faulty or defective equipment.” M & W emphasized its claim against EVI in letters addressed to EVI dated April 2 and May 14, 1984.

On July 19,1984, M & W advised EVI of a second “rack failure” at its warehouse. Again, EVI investigated the incident and concluded that the collapse was due to M & W’s failure to follow its recommendations for rack construction. M & W disputed this finding and, in a letter to EVI dated November 2, 1984, M & W notified EVI that it was asserting a claim with regard to both rack collapses and threatened “legal action” if EVI failed to “exercise [its] responsibility” as “a major supplier of pallet rack[s] for M & W . . . .” EVI did not comply with M & W’s demands and, on January 24, 1985, M & W filed a lawsuit against EVI in the State Court of Fulton County, Georgia, seeking damages stemming from the rack collapses. Northern did not learn of the rack collapses or the pending litigation until February 11, 1985.

From this and other undisputed evidence, the trial court entered an order on July 6, 1987, finding that “the property damage resulting from the two rack collapses was obviously ‘caused by an occurrence’ as defined in the insurance policy . . but declared that Northern did not have a duty to defend or cover EVI finding, as a matter of law, that EVI failed to notify Northern, “ ‘as soon as practicable’ ” of the rack collapses as is required for coverage under the policy. Relying on OCGA § 9-15-14, the trial court also ordered that “the attorneys for EVI pay to Northern the sum of $819.25 as reasonable expenses and attorney’s fees . . for asserting “frivolous and substantially groundless arguments in opposition to Northern’s Motion for Summary Judgment” and for “purposely omitting key words and phrases in . . . quotes from the policy [in support of its contentions].”

EVI appeals in Court of Appeals Case No. 76457 and Northern cross-appeals in Court of Appeals Case No. 76458. Held:

Case No. 76457

1. In its first two enumerations of error, EVI challenges the trial court’s declaration, relinquishing Northern of liability under the policy, and argues that it had no duty to notify Northern of the rack collapses “as soon as practicable” because the rack collapses were not unexpected occurrences as defined by the policy. In this regard, EVI points to the policy which provides that an “ ‘occurrence’ means an accident, including continuous or repeated exposure to conditions, which results in . . . property damage neither expected nor intended from the standpoint of [EVI].” From this perspective, EVI reasons that the “policy allowed [it] ... to determine whether or not an event was an occurrence” which was required to be reported to Northern and justifies its failure to notify Northern of the rack collapses “as soon as practicable” based on its expectation that M & W would experience a rack collapse as a result of M & W’s failure to comply with the rack construction recommendations provided by EVI.

Assuming without deciding that the rack collapses were not “ ‘occurrences’ ” as defined by the policy, we find that the trial court’s holding, relinquishing Northern from liability under the policy, was proper since the policy also provided that “an occurrence” is a condition precedent to coverage. In other words, we do not accept EVI’s anomalous contention that it had no duty to report, “as soon as practicable,” a claim which now is the basis of its assertion of coverage under the policy.

Decided October 17, 1988.

Alfred L. King, Jr., for appellant.

James F. Cook, Jr., John W. Chambers, for appellee.

2. In its third enumeration of error, EVI contends “[t]he trial court erred in ordering [its] attorney ... to pay [Northern’s] attorney fees in the amount of $819.25,” arguing that OCGA § 9-15-14 was not applicable to what the trial court characterized as “EVI’s frivolous and substantially groundless arguments in opposition to Northern’s Motion For Summary Judgment.” We agree.

OCGA § 9-15-14 “is available only with respect to ‘any claim, defense, or other position which is first raised in an action on or after July 1, 1986.’ Ga. L. 1986, pp. 1591, 1593, § 3.” Ferguson v. City of Doraville, 186 Ga. App. 430, 432 (2, a), 433 (367 SE2d 551). In the case sub judice, EVI first asserted the contention, which forms the basis of the trial court’s order, in its answer filed May 2, 1985. Consequently, the trial court erred in ordering EVI’s attorney to pay Northern’s attorney fees under the authority of OCGA § 9-15-14.

3. Northern’s motion for frivolous appeal is denied.

Case No. 76458

In light of this court’s holding in Division 1 of Case No. 76457, it is unnecessary to address the issue raised in Northern’s cross-appeal.

Judgment affirmed in part and reversed in part in Case No. 76457.

Judgment affirmed in Case No. 76458. Pope and Benham, JJ., concur.

       Northern initiated this action in the State Court of Fulton County. However, the dispute was transferred to the Superior Court of Fulton County after an interlocutory appeal to the Georgia Court of Appeals, where this court held that “[t]he superior court [is] the only forum that can properly entertain an action for declaratory judgment . . . .” EVI Equip, v. Northern Ins. Co. of N. Y., 178 Ga. App. 197, 198 (342 SE2d 380).

       In his deposition, the EVI salesman who provided the advice and equipment to M & W testified that he was aware that M & W would not follow his recommendations for rack stability and that this action was likely to result in rack collapse.

       Interestingly, Northern also relies on the policy’s definition of an “ ‘occurrence’ ” and on evidence showing that EVI expected the M & W rack failures to support its sole contention on cross-appeal that the trial court erred in finding that the rack collapses were “ ‘caused by an occurrence’ as defined by the insurance policy . . . .” In this regard, Northern argues that the rack failures were not covered “ ‘occurrences’ ” because they were “expected . . . from the standpoint of [EVI].”


text:
    76533.
    EDWARDS v. EDWARDS.
    (374 SE2d 791)
   Pope, Judge.

Appellant Tom Edwards, Jr., a/k/a Mack Treadwell, brought an action in probate court seeking to have his claim of heirship and quantity of interest established in the estate of Tom Edwards, as his legal son and heir, by proof of a common law marriage between his deceased mother and Edwards. Upon appeal to the superior court a jury found that appellant was not an heir at law of Edwárds, and this appeal ensued. Held:

1. “Whether a man and a woman have entered into a common law marriage is a question of fact.” Taylor v. Taylor, 243 Ga. 506, 508 (255 SE2d 32) (1979). OCGA § 19-3-1 establishes the three essential elements of a marriage in this state, all of which must be met during one period of time in order to prove a common law marriage. Fireman’s Fund Ins. Co. v. Smith, 151 Ga. App. 270 (1) (259 SE2d 675) (1979). “When the relationship between the parties begins as an illicit arrangement, the burden is on the party asserting the validity of the marriage to show that the illicit relationship ended and that the parties did actually enter a marriage contract.” Brown v. Brown, 234 Ga. 300, 302 (215 SE2d 671) (1975). The evidence presented amply authorized the jury to conclude that appellant’s mother and Edwards never contracted marriage, nor held themselves out to the world as married, and that their repute in the vicinity and among neighbors and visitors was not such as usually accompanies the marriage relation or indicates the fact of marriage. See generally Murray v. Clayton, 151 Ga. App. 720 (2) (261 SE2d 455) (1979).

Decided October 17, 1988.

Carl A. Bryant, for appellant.

John B. Adams, for appellee.

2. Appellant further asserts, for the first time on appeal, that even if no common law marriage existed, the jury verdict should not stand because of the doctrine of virtual or equitable legitimation as recognized by the Supreme Court in Prince v. Black, 256 Ga. 79 (344 SE2d 411) (1986). This argument, even if it had been timely raised, is without merit. The doctrine is applicable only in “cases in which there is such clear and convincing evidence that the child is the natural child of the father and that the father intended for the child to share in his intestate estate, in the same manner that the child would have shared if he had been formally legitimated, that equity will consider that done which ought to have been done.” Id. at 80. There was no such evidence in the instant case. It follows that we find no grounds for reversal.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    76727.
    STACEY REALTY, INC. v. CALVARY BAPTIST CHURCH, INC.
    (374 SE2d 537)
   Deen, Presiding Judge.

On April 30, 1985, Rev. Wilhite, the pastor of Calvary Baptist Church, signed an exclusive listing agreement with Kennon Realty Services, Inc., as broker and C. Robert Stacey as agent, to sell certain church real property. This listing expired by its terms on September 1, 1985. After this contract expired, Stacey continued to assist the appellee with the sale of the church property. After Stacey left Ken-non Realty and established his own company, the parties entered into another agreement by which Stacey would have an exclusive listing to sell the property. The original agreement, however, was misplaced so Stacey offered to prepare another and leave it in his office so Rev. Wilhite could come by and sign it. He signed the new contract without reading it. He claims that Stacey understood that he could only enter into a three-month agreement on behalf of his church. On June 13, 1986, one Larry Bussy presented the church with an offer to purchase the property. When Stacey called to congratulate Rev. Wilhite on the offer, he indicated that he expected 10 percent of the $195,000 sales price as commission under the listing agreement. Rev. Wilhite informed him that the contract had expired in March and that the church owed him nothing. In Rev. Wilhite’s affidavit he contends that at a subsequent meeting between the parties, Stacey explained that the date on the agreement must have been mistakenly entered by the parties. Rev. Wilhite also states that he never received a copy of the contract until the meeting. An examination of the listing agreement reveals that it does not contain any description of the. property it was to cover and in its place for a description it merely says “See Exhibit A.” No Exhibit A was attached to the contract. Appellant contends, however, that a lengthy appraisal served as Exhibit A. The contract makes no reference to the appraisal, and there is no key contained in it which would link the contract to the appraisal.

Stacey Realty filed suit against the church and later filed a motion for summary judgment. The appellee filed a cross-motion and mainly asserted that the lack of a property description rendered the contract null and void. This appeal follows from the ruling of the court below which granted appellee’s motion and denied appellant’s.

1. Appellant contends that Rev. Wilhite’s failure to read the contract precluded him from raising the defenses of fraud and mutual mistake.

Where one signs a contract without reading it, he is bound by its terms unless he can show that an emergency existed at the time that he signed it that would excuse his failure to read it, or the other party misled him by artifice or device to prevent him from reading it, or a fiduciary or confidential relationship existed upon which he relied in not reading the contract. Van Den Berg v. Northside Realty Assoc., 172 Ga. App. 591 (323 SE2d 839) (1984). Rev. Wilhite has not shown the existence of an emergency that would excuse his failure to read the contract. He cannot set up a defense of fraud where he had the capacity and opportunity to read the contract. Craft v. Drake, 244 Ga. 406 (260 SE2d 475) (1979). The defense of mutual mistake is not available to one who does not read a contract before signing it. See Gulden v. Newberry Wrecker Svc., 154 Ga. App. 130 (267 SE2d 763) (1980). He is likewise not entitled to equitable relief where, by exercising slight diligence, he could have prevented the fraud which he alleges to have been perpetrated upon him. Charles v. Simmons, 215 Ga. 794 (113 SE2d 604) (1960).

Decided September 19, 1988

Rehearing denied October 18, 1988

William G. Scrantom III, for appellant.

William C. Pound, William B. Hardegree, for appellees.

Appellee’s argument that a fiduciary relationship existed between the parties and that appellant violated that relationship by inducing appellee to sign the contract is without merit. “A confidential relationship does not exist prior to the contract or legal relationship creating it, unless it exists for other reasons.” Cole v. Cates, 113 Ga. App. 540, 544 (149 SE2d 165) (1966). The only evidence of a prior fiduciary relationship between the parties was a listing of the property with Kennon Realtors which expired on September 1, 1985.

2. This case is not governed by the statute of frauds as asserted by appellee. An exclusive listing agreement is not within the statute of frauds. Orr v. Smith, 102 Ga. App. 40 (115 SE2d 601) (1960). It is a contract for services and not for the sale of lands. Cantrell v. Johnston, 74 Ga. App. 74, 78 (38 SE2d 893) (1946); Lingo v. Blair, 32 Ga. App. 111 (122 SE 802) (1924). The rules of the Georgia Real Estate Commission do not determine whether a listing agreement (which it requires to be in writing) is within the statute of frauds. See generally National Advertising Co. v. Dept. of Transp., 149 Ga. App. 334, 339 (254 SE2d 571) (1979); Mousetrap of Atlanta v. Blackmon, 129 Ga. App. 805, 807 (201 SE2d 330) (1973); Fulton County v. Holland, 71 Ga. App. 455, 461 (31 SE2d 202) (1944). “[A] regulatory agency has no constitutional right to legislate [Cit.] and the collateral construction given statutes by administrative officials will be disregarded where their invalidity is apparent. [Cits.]” Brown v. Quality Fin. Co., 112 Ga. App. 369, 370 (145 SE2d 99) (1965).

Accordingly, we find that the trial court erred in granting summary judgment in favor of appellee.

Judgment reversed.

Carley and Sognier, JJ., concur.