text:
    75577.
    BRANTON v. DRAPER CORPORATION.
    (366 SE2d 206)
   Birdsong, Chief Judge.

Houston Branton brings this appeal from the grant of summary judgment to appellee Draper Corporation. Appellant has filed only selected portions of the record for inclusion in this appeal. Not included are the complaint and the answer. Hence, we have difficulty in determining the precise issues alleged as a basis for this action. The pretrial order describes the complaint as seeking recovery of “medical expenses, lost services, loss of incidental expenses, loss of conjugal rights, support and consortium” by Branton, for injuries to his wife, Willie Ruth Branton, alleged to have been caused by “the negligent, wanton, careless decision of the Draper Corporation to design, manufacturer [sic] and install unreasonably dangerous components on its looms sold to the Bibb Company. . . .” Mrs. Branton worked as a weaver, i.e. a loom operator, for the Bibb Company in its Columbus, Georgia mill for over 27 years. On April 20, 1982, when she walked between two operating looms, her apron was caught on an exposed flywheel and she was dragged into the loom and injured. She was hospitalized and ultimately her knee had to be replaced. She collected workers’ compensation for her injury. On February 26, 1986, almost four years after her injury, her husband filed this action.

Appellee, Draper Corporation, moved for summary judgment. Appellant proceeded on the theory that Draper had defectively designed and manufactured its looms by having an exposed, rotating flywheel with spokes and set-screws mounted on an 8-inch drive-shaft extension, without a shield or guard, and these defects caused the injury to Mrs. Branton. Appellee contends there was no defective design, and if the design was dangerous, it was open, obvious, and patent to Mrs. Branton, and the cause of the injury was the negligence of Mrs. Branton in wearing a long apron which was tied about her body. Further, appellee asserted the defenses of the statute of limitations, assumption of risk, and contributory negligence, inter alia. The trial court granted appellee’s motion for summary judgment, holding that a manufacturer is not under a duty to make a machine accident-proof and is under no duty to warn against a patent peril. The court also found that Branton’s claim for lost wages, lost earning capacity and medical expenses for his wife’s injury were not properly includable within the consortium claim and were barred by the statute of limitations. Branton brings this appeal. Held:

1. “A loss of consortium has been defined as a loss of the love, society, companionship, and comfort of the wife or husband.” Brown v. Hauser, 249 Ga. 513, 514 (292 SE2d 1); see also Smith v. Tri-State Culvert Mfg. Co., 126 Ga. App. 508, 510 (191 SE2d 92). A claim for “loss of consortium” does not include lost wages, medical expenses, or loss of earning capacity. See generally OCGA § 51-12-4; Blanchard v. Westview Cemetery, 133 Ga. App. 262, 269 (211 SE2d 135), as modified 234 Ga. 540 (216 SE2d 776); Old Dominion Freight Line v. Martin, 153 Ga. App. 135 (264 SE2d 585) (medical expenses). The Code provides a two-year statute of limitations for personal injuries and a four-year limitation period for loss of consortium. OCGA § 9-3-33. A claim for loss of consortium does not extend the period during which damages may be asserted for physical injuries to the person. Central of Ga. R. Co. v. Harbin, 132 Ga. App. 65 (1) (207 SE2d 597). The trial court properly ruled that these claims were barred by the two-year statute of limitations.

2. Appellant contends the trial court erred “in ruling that the Open and Obvious Rule is an absolute defense and that comparative negligence is not an issue in an action for compensatory damages based on unrebutted evidence of defendant’s gross negligence or conscious indifference to the consequences.” Appellant has failed to direct our attention to the record where this ruling can be found and our review of the record has failed to uncover such ruling.

The trial court held “that manufacturers are not under a duty to make a machine accident proof and have no duty to guard against injury from a patent peril. Under Georgia law, if the machine functions properly for the purpose for which it was designed without any latent defect, and if its functioning creates no danger or peril that is not known to [the] user, the manufacturer has produced a machine that is reasonably safe.” (Emphasis deleted.) The court reasoned that “because the alleged design defect was not latent but was in plain view, and . . . because the functioning of the loom created no danger or peril not known to the user” appellee Draper was entitled to summary judgment. This is the general law of this state. “ ‘If a manufacturer does everything necessary to make the machine function properly for the purpose for which it is designed, if the machine is without any latent defect, and if its functioning creates no danger or peril that is not known to the user, then the manufacturer has satisfied the law’s demands. We have not yet reached the state where a manufacturer is under the duty of making a machine accident proof or foolproof. . . . [H]e is under no duty to guard against injury from a patent peril or from a source manifestly dangerous. ... In other words, the manufacturer is under no duty to render a machine or other article “more” safe — as long as the danger to be avoided is obvious and patent to all.

“ ‘To impose upon a manufacturer the duty of producing an accident-proof product may be a desirable aim, but no such obligation has been — or, in our view, may be — imposed by judicial decision. Suffice it to note that, in cases dealing with a manufacturer’s liability for injuries to remote users, the stress has always been upon the duty of guarding against hidden defects and of giving notice of concealed dangers.’ ” Stovall & Co. v. Tate, 124 Ga. App. 605, 610-611 (184 SE2d 834); accord Trailmobile v. Smith, 181 Ga. App. 134, 135 (351 SE2d 528); Coast Catamaran Corp. v. Mann, 171 Ga. App. 844, 848 (321 SE2d 353), aff'd 254 Ga. 201 (326 SE2d 436); Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 335 (319 SE2d 470); Giordano v. Ford Motor Co., 165 Ga. App. 644, 645 (299 SE2d 897); Vance v. Miller-Taylor Shoe Co., 147 Ga. App. 812 (2) (251 SE2d 52); Poppell v. Waters, 126 Ga. App. 385, 388 (190 SE2d 815). “Conceivably, any manufactured good is capable of inflicting injury; and, indeed, the use of certain products, such as, for example, firearms, powersaws, and perhaps motorcycles, may be considered intrinsically dangerous. Recognizing this fact, we held in Hunt v. Harley-Davidson Motor Co., 147 Ga. App. 44 (248 SE2d 15) (1978), that a manufacturer has no duty to warn of obvious common dangers connected with the use of a product. . . . Although the ‘patent danger rule’ has its roots in a New York decision [which is no longer followed] it is still viable in this state.” Stodghill v. Fiat-Allis Constr. Machinery, 163 Ga. App. 811, 813 (295 SE2d 183).

Assuming arguendo there was a design defect in this loom, which was manufactured by appellee, from an exposed flywheel without a safety guard, Mrs. Branton had been working on the same type of loom at the same company for 27 years, and the alleged peril or danger, caused by the unguarded rotating flywheel, was clearly obvious and patent. She had been warned by management to be careful when walking between the looms, i.e., by the flywheel, she was aware of the location of the flywheel and knew not to come into contact with it when it was rotating. The record contains a “Job Analysis” sheet, purportedly bearing the signature of “Ruth Branton,” on which a job hazard is listed as involving the “handwheel,” and the action required of the worker to avoid injury is: “Don’t wear long aprons and always use a safety pin instead of tying.” Mrs. Branton admitted she wore an apron that extended to a point just above the knee and that the apron was tied around her waist. It was this apron that contacted the loom flywheel, and it was the fact that the apron was “looped around [her] waist,” rather than pinned, that caused her to be pulled into the flywheel and injured. Hence, our Supreme Court has held that “ ‘ “[i]f the user or consumer discovers the defect and is aware of the danger, but nevertheless proceeds unreasonably to make use of the product, he is barred from recovery.” ’ ” Ford Motor Co. v. Lee, 237 Ga. 554, 555 (229 SE2d 379); Center Chem. Co. v. Parzini, 234 Ga. 868 (218 SE2d 580).

3. Appellant argues that where a “party’s negligence is wilful and wanton, he is debarred from pleading that the other party was negligent or was a wrongdoer.” (Emphasis deleted.) Aside from the semantics involved, this is a correct statement of law. We have pointed out that “ ‘we disapprove [of] the use of the expression [wilful and wanton negligence]; for wilfulness and wantonness are so far the opposites of negligence as to make the expression “wilful and wanton negligence” misleading. . . .’ [Negligence] . . . concerns a degree of care or absence thereof. Wilful and wanton conduct, on the other hand ... is conduct ‘such as to evidence a wilfull intention to inflict the injury, or else was so reckless or so charged with indifference to the consequences ... as to justify the jury in finding a wantonness equivalent in spirit to actual intent. . . .’” Truelove v. Wilson, 159 Ga. App. 906, 908 (285 SE2d 556); accord Central of Ga. R. Co. v. Moore, 5 Ga. App. 562, 564 (63 SE 642). “It is inconsistent to compare wilfulness and neglect. [Cit.] The terms are antagonistic in meaning. [Cit.]” Nunn v. Taylor, 177 Ga. App. 44, 46 (338 SE2d 453). However, we must candidly admit that our appellate courts have consistently used such a term as “wilful and wanton negligence.” For example, the court, in Lowe v. Payne, 156 Ga. 312, 314-315 (118 SE 924), stated: “If the negligence of the employees of the railroad company is so gross as to amount to wanton and willful negligence, such want of ordinary care by the person injured or killed to avoid the consequences of it would be no bar to a recovery for the injury.”

A better statement of the rule is found in Western &c. R. Co. v. Bailey, 105 Ga. 100, 101 (31 SE 547): “It may be also stated as a general rule, that the [railroad] company owes no duty to a trespasser upon its track, except to do him no wilful or wanton injury. A trespasser is a wrong-doer, and it is a general principle of jurisprudence that the courts will not aid a wrong-doer. The fact that the trespasser is a wrong-doer does not, however, justify malicious, wanton, or wilful maltreatment of him; and the failure to use reasonable care to avoid injury to him, after the discovery of his danger, may sometimes be sufficient evidence of wantonness or wilfulness. ... If, after discovering the danger to the trespasser and his inability to escape, the company fails to exercise reasonable care, it will be liable, if the exercise of such care would have prevented the injury; and although there is a clear distinction between negligence and wilfulness, yet a reckless and wanton disregard of consequences, evincing a willingness to inflict injury, may amount to wilfullness, although there is no direct proof of actual intention to inflict the injury complained of.” (Emphasis supplied.)

These pronouncements may appear to be in conflict with each other, and with OCGA § 51-11-7, which provides: “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.” The Supreme Court in Carr v. John J. Woodside Storage Co., 217 Ga. 438, 440 (123 SE2d 261) referred to the rule stated in Lowe and commented: “ ‘The liability is a harsh one, but it is just, where the facts of the case warrant it. The court, in charging the jury upon the subject, should make it plain that [this bar to pleading plaintiff’s own negligence] is never applicable unless the defendant’s conduct was such as to evince a wilful intention to inflict the injury, or else was so reckless or so charged with indifference to the consequences, where human life or limb was involved, as to justify the jury in finding a wantonness equivalent in spirit to actual intent.’ ” It is clear that the facts of this case do not warrant the application of this rule barring the defendant from pleading the plaintiffs own lack of ordinary care, as stated in Lowe, supra, for the record is devoid of any act of appellee evincing a wilful intent to inflict injury, or such reckless or indifference to consequences to find wantonness equivalent in spirit to actual intent. This enumeration is without merit.

4. Appellant alleges the trial court failed to consider the doctrine of distraction and its application to this case. First, we cannot discern from the trial court’s order whether it did or did not consider the “distraction doctrine.” See Shackelford v. DeKalb Farmer's Market, 180 Ga. App. 348 (349 SE2d 241). Secondly, those portions of the record cited to us by appellant do not show a basis in fact for application of this doctrine. Lastly, we have found no portion of the record where appellant asserted the distraction doctrine to the court as a viable issue. This enumeration is lacking in merit.

Decided February 12, 1988.

B. Randall Blackwood, for appellant.

Karen L. Jenkins, G. Michael Banick, for appellee.

5. We find no reversible error in the trial court stating its findings of fact and conclusions of law, rather than merely issuing an order granting summary judgment to appellee. Neither do we find reversible error in the trial court’s order by its failure to use the standard phraseology in granting summary judgment that it considered the evidence in the light most favorable to the respondent, and gave the respondent the benefit of all reasonable doubts and favorable inferences to be drawn from the evidence, but found no material issue of fact requiring submission of the case to a jury. In the absence of evidence to the contrary, it will be presumed that judges, as public officials, properly discharge their duties. Bank of Clearwater v. Kimbrel, 240 Ga. 570, 572 (242 SE2d 16). As there is no evidence to the contrary, we will presume the trial court applied the correct legal standard in ruling on the motion for summary judgment.

Judgment affirmed.

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


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    75761.
    STEPHENS v. THE STATE.
    (366 SE2d 211)
   Beasley, Judge.

Defendant appeals his conviction of aggravated assault. OCGA § 16-5-21.

1. Defendant was also charged with armed robbery and entering an automobile with intent to commit a theft but was acquitted. Because all the charges arose out of the same incident, defendant contends the evidence was insufficient in that his acquittal on two of the charges prevents his conviction on the aggravated assault charge.

Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986), abolished the inconsistent verdict rule in criminal cases. Thus, the sole question is whether the evidence was sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). It was.

2. Defendant enumerates as error a portion of the jury charge which tracked the language of Eason v. State, 217 Ga. 831, 841 (4) (125 SE2d 488) (1962). As exhibited by that case and others since, it contains a rule of evidence to be applied in cases dependent solely on circumstantial evidence. See also Brown v. State, 170 Ga. App. 398, 400 (5) (317 SE2d 207) (1984); Pinson v. State, 235 Ga. 188, 190 (219 SE2d 125) (1975); Castleberry v. State, 152 Ga. App. 769, 770 (2) (264 SE2d 239) (1979). It is assumed for the purpose of deciding the issue on appeal that this was a circumstantial evidence case. We do not consider whether or not the evidence was wholly circumstantial because no such objection to the charge was raised.

Defendant’s ground of complaint is that the charge constituted an impermissible expression of opinion by the court as to what was or was not proved. Such an incursion of the trial judge into the fact-finding process is forbidden by OCGA § 17-8-57, which is not cited by appellant although some of the cases he relies on do. None of the authorities he cites address or decide the issue raised here. The recent Supreme Court case of Mullinax v. State, 255 Ga. 442, 445 (4) (339 SE2d 704) (1986), states that: “OCGA § 17-8-57 is only violated when the court’s charge assumes certain things as facts and intimates to the jury what the judge believes the evidence to be. [Cits.]” Applying the statute with this further explanation, the charge complained of, being merely an exposition of a rule of evidence, does not bear the character of a prohibited opinion.

3. Defendant contends that during closing argument the assistant district attorney engaged in prosecutorial misconduct by (1) arguing facts not in evidence, (2) commenting on defendant’s burden of producing evidence, and (3) arguing to the jury that it had the duty to keep defendant from committing further crimes. Defendant urges that a fair trial was denied by the totality of the prosecution’s improper remarks, but cumulative error is not a basis for reversal. Campbell v. State, 181 Ga. App. 1, 3 (2) (351 SE2d 209) (1986).

Dealing with the individual assertions, they pose no error. As to the first, arguing facts not in evidence, the trial court sustained defendant’s objection in one instance and in two other instances the argument by the prosecutor was in response to contentions made by defendant and were not outside the scope of reasonable inferences or deductions so as to be objectionable. Brinson v. State, 170 Ga. App. 297, 298 (2) (316 SE2d 857) (1984); Hall v. State, 139 Ga. App. 142, 143 (4b) (227 SE2d 917) (1976). Moreover, within reasonable bounds, the state may discuss its own failure to produce evidence. Pope v. State, 167 Ga. App. 328, 330 (2) (306 SE2d 326) (1983). Even if the comments were unsupported by evidence, they were harmless. Rivers v. State, 250 Ga. 288, 298 (6) (298 SE2d 10) (1982).

Regarding the second, it is not improper for a prosecutor to comment on the failure of defendant to produce evidence. Bell v. State, 180 Ga. App. 170 (348 SE2d 712) (1986); Holmes v. State, 148 Ga. App. 817 (2) (253 SE2d 237) (1979). Defendant’s burden of proof was not mentioned.

Last, considering number three, the necessity of law enforcement may be urged upon the jury. Heaton v. State, 175 Ga. App. 735, 736 (5) (334 SE2d 334) (1985); Mason v. State, 236 Ga. 46, 49 (7) (222 SE2d 339) (1976). But here, due to defense counsel’s objection, the district attorney never reached the point of making such an appeal, if indeed that was his aim. To the contrary, defendant’s objection alone unnecessarily introduced the point.

Decided February 12, 1988.

Roland R. Castellanos, for appellant.

Thomas J. Charron, District Attorney, James F. Morris, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: Pope, Judge.

text:
    75713.
    OWEN OF GEORGIA, INC. et al. v. WAUGAMAN.
    (366 SE2d 173)
   Pope, Judge.

Appellants employer/insurer bring this appeal from an order of the superior court affirming an award by the State Board of Workers’ Compensation imposing a penalty pursuant to OCGA § 34-9-221 (f). The chronology of events pertinent to this appeal shows that claimant Waugaman was awarded income benefits pursuant to an administrative law judge’s award dated April 11, 1986. Appellants sought review of this award by the full board 28 days later on May 9, 1986. The board affirmed the award on August 8, 1986. Within 20 days of this award appellants paid to claimant all monies due under the award. On September 24, 1986 claimant requested a hearing on the penalty provision of OCGA § 34-9-221 (f). An ALJ’s award was entered on October 28, 1986 imposing the statutory 20 percent penalty, and this was affirmed by the full board on March 20, 1987. The superior court in turn affirmed this award on June 23, 1987, and this discretionary appeal followed.

1. Appellants’ first enumeration asserts the doctrine of res judicata as barring claimant’s request for a penalty. Appellants argue that this matter could have been, and thus should have been adjudicated before the full board during the initial claim for benefits. See generally Ga. Cas. &c. Co. v. Randall, 162 Ga. App. 532 (292 SE2d 118) (1982). We find this argument entirely without merit.

“The res judicata effect of a workers’ compensation claim does not operate to bar litigation of and recovery for events occurring subsequent to the hearing on the issues. Carrier Ins. Co. v. McConnell, 141 Ga. App. 44 (232 SE2d 606) (1977).” Boaz v. K-Mart Corp., 254 Ga. 707, 710 (334 SE2d 167) (1985). Clearly, the issue of the timeliness of the payment of benefits pursuant to an ALJ’s award cannot arise prior to such award being rendered. It follows that an application for review of such award by the full board would likewise not include this issue. Such an appeal renders the ALJ’s award nonfinal (see OCGA § 34-9-103 (a)) and any discussion of a penalty for violation of OCGA § 34-9-221 (f) arguably premature. We do not mean to hold that a failure to comply with OCGA § 34-9-221 (f) occurring subsequent to the ALJ hearing but prior to review by the full board cannot be shown upon such review (see OCGA § 34-9-103 (a); Binswanger Glass Co. v. Brooks, 160 Ga. App. 701 (1) (288 SE2d 61) (1981)), “but we do hold that [only] issues which were determined or which could have been adjudicated on the first hearing [before the ALJ] concerning facts as they then stood are conclusive.” Fishten v. Campbell Coal Co., 95 Ga. App. 410, 416 (98 SE2d 179) (1957).

Decided February 1, 1988

Rehearing denied February 15, 1988

James T. McDonald, Jr., Joseph A. Munger, R. Briggs Peery, for appellants.

Steven E. Marcus, for appellee.

2. We find nothing in the opinion in McLean Trucking Co. v. Florence, 179 Ga. App. 514 (347 SE2d 333) (1986), precluding the holding therein from being applied to the facts in the case at bar. See Ga. L. 1987, p. 806, §§ 2 and 3, which reduced the time for filing an application for review from 30 to 20 days both for review of an ALJ award by the full board and also for appeal of a full board award to superior court. We also find no basis for limiting the holding in McLean to prospective application only. See generally Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (3) (300 SE2d 673) (1983). Finally, we find no merit in appellants’ contention that the superior court erred in applying the “any evidence” test in this case. Atlanta Janitorial Svc. v. Jackson, 182 Ga. App. 155 (7) (355 SE2d 93) (1987). We thus find no ground for reversal of the superior court’s order for any reason assigned on appeal.

Judgment affirmed.

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


author: Benham, Judge.

text:
    74808.
    LeCROY et al. v. MASSEY et al.
    (366 SE2d 215)
   Benham, Judge.

During the course of litigation concerning several interlocking estates, certain funds were distributed to appellants pursuant to a purported oral settlement agreement between counsel for the parties. Appellees, asserting that there was no such agreement, moved for summary judgment on that issue. Three of the six attorneys involved swore that there was a settlement agreement; three swore that there was not. The trial court granted appellees’ motion, holding that there was, as a matter of law, no enforceable agreement. We agree.

Decided February 15, 1988

Timothy P. Healy, for appellants.

Janney E. Sanders, for appellees.

Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (308 SE2d 544) (1983), interpreted OCGA § 15-19-5 to require, in those circumstances where the very existence of an agreement was controverted, as opposed to those situations in which the authority of counsel to enter into an agreement was disputed, that an agreement between counsel on behalf of their clients must be in writing in order to be enforceable. The existence of the agreement is hotly contested in this case, so the absence of a writing prevents enforcement. Cf. Bridges v. Bridges, 256 Ga. 348 (1) (349 SE2d 172) (1986).

Uniform Superior Court Rule 4.12 (253 Ga. 799, 816) provides as follows: “An attorney of record has apparent authority to enter into agreements on behalf of his client(s) in civil actions. Oral agreements, if established, are enforceable.” Appellants contend that the Rule and the holding in Brumbelow are in conflict, and that since the Supreme Court enacted the Rules subsequent to its decision in Brumbelow, the Rule controls and permits enforcement of the purported agreement. We agree, however, with appellees’ argument that although the Rule makes oral agreements enforceable “if established,” Brumbelow decrees how they are to be established. That is, where the very existence of the agreement is disputed, it may only be established by a writing. There is no writing establishing the agreement asserted by appellants, so the trial court was correct in granting summary judgment to appellees.

Judgment affirmed.

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


author: Carley, Judge.

text:
    75294.
    NICHOLS v. FREY.
    (366 SE2d 212)
   Carley, Judge.

Appellant-plaintiff brought this action, seeking to recover damages as the result of a collision between his truck and a horse owned by appellee-defendant. In his complaint, appellant alleged that the proximate cause of his damages was appellee’s negligence in permitting his horse to stray upon a public road. Appellee answered, denying the material allegations of the complaint. Appellee moved for summary judgment on the ground that he had taken all reasonable precautions and had exercised due diligence as to the confinement of his horse. It is from the trial court’s grant of appellee’s motion for summary judgment that appellant brings this appeal.

“In cases where in a stock-law county a person is injured or damaged by livestock straying or running at large, there arises a permissible inference authorized prima facie by the mere fact of the running at large by the animal that the owner of the livestock was negligent in allowing the stock to run at large or stray, but when the owner introduces evidence which would authorize a finding that he had exercised ordinary care in the maintenance of the stock, that permissible inference disappears.” Porier v. Spivey, 97 Ga. App. 209, 211-212 (1) (102 SE2d 706) (1958). In support of his motion for summary judgment, appellee submitted his own affidavit. Appellee contends that, in his affidavit, he demonstrated that he had used ordinary, reasonable care in maintaining his pasture fence and that this evidence was sufficient to rebut the permissible inference of his negligence which vould arise from the fact that his horse had been running loose on a public road.

It is possible that, under the principle stated in Porier, supra, portions of appellee’s affidavit may have been sufficient to rebut a presumption of his negligence. However, there exists “evidence of [appellee’s] negligence other than the mere fact that the animal had strayed [in the road]. There was [un]contradict[ed] testimony that there was a hole in the pasture fence. . . .” (Emphasis supplied.) Green v. Heard Milling Co., 119 Ga. App. 116 (1) (166 SE2d 408) (1969). See also Law v. Hulsey, 109 Ga. App. 379, 380 (136 SE2d 161) (1964). Appellee’s affidavit offered a non-negligent explanation as to how the hole in the pasture fence had been created: His two horses had “apparently got into a fight and broke through the fence[, although they had] never fought prior to this occasion.” This explanation was not based on appellee’s personal knowledge of the occurrence of such an event but constituted only appellee’s opinion based on his examination of the fence and the horses after the collision had occurred. “[A]ny witness may give his opinion if he testifies to the facts on which such opinion is based [cit.], but in no case where the facts are before the trior of facts can it be said that a judgment is demanded as a matter of law based upon the opinions expressed, for the trior of facts may arrive at a different conclusion based upon the evidence introduced and is not bound by the opinion testimony. [Cits.] .... While opinion evidence adduced by the respondent is sufficient to preclude the grant of a summary judgment [cit.], it does not follow that the introduction of opinion evidence by the movant will authorize the grant of a summary judgment, since no burden is upon the respondent to rebut the movant’s case until the movant has first removed, by his affidavits, admissions, interrogatories, etc., all jury questions from the case. [Cits.]” Harrison v. Tuggle, 225 Ga. 211, 212-213 (2) (167 SE2d 395) (1969). “[T]his is not the type of case in which [opinion evidence] introduced by the movant will authorize the grant of summary judgment. [Cits.]” Morton v. Allstate Ins. Co., 169 Ga. App. 742 (315 SE2d 261) (1984).

Decided February 15, 1988.

Stephen F. Mackie, Kenneth W. Revell, Darlene J. Palmer, for appellant.

Albert J. DeCusati, M. David Merritt, for appellee.

For purposes of summary judgment, appellee’s opinion evidence was insufficient to negate the possibility that the hole in the fence and the escape of the horse had resulted from his negligence. “ ‘On motion for summary judgment by a defendant on the ground that plaintiff has no valid claim, the defendant, as the moving party, has the burden of producing evidence, of the necessary certitude, which negatives the opposing party’s (plaintiff’s) claim. This is true because the burden to show that there is no genuine issue of material fact rests on the party moving for summary judgment, whether he or his opponent would at trial have the burden of proof on the issue concerned; and rests on him whether he is by it required to show the existence or non-existence of facts.’ [Cit.]” Burnette Ford, Inc. v. Hayes, 227 Ga. 551, 552 (181 SE2d 866) (1971). It follows that the trial court erred in granting appellee’s motion for summary judgment.

Judgment reversed.

Banke, P. J., and Benham, J., concur.


author: Banke, Presiding Judge.

text:
    75868.
    BAILEY v. AUSTIN et al.
    (366 SE2d 214)
   Banke, Presiding Judge.

On June 30, 1986, the superior court ordered the plaintiff-appellant in the present action to provide responses to certain interrogatories within ten days or suffer the consequence of having her case dismissed with prejudice. The plaintiff did not comply with this order, and on June 15, 1986, the trial court consequently entered an order dismissing her complaint. On that same day, however, the plaintiff filed a voluntary dismissal, which purported to be without prejudice. She later refiled the action, and the defendants responded by raising the defense of res judicata. The trial court granted summary judgment to the defendants on the basis of this defense, prompting the plaintiff to file this appeal. Held:

Decided February 15, 1988.

Teddy R. Price, for appellant.

G. Phillip Bramlett, Samuel N. Werbin, for appellees.

In the recent case of Muhanna v. O'Kelly, 185 Ga. App. 220 (363 SE2d 626) (1987) we held that “[r]egardless of the wording of [OCGA § 9-11-41 (a)], the right of a voluntary dismissal has always been subject to a judicially created limitation prohibiting its exercise, even prior to trial, where there has already been an announcement by the court of its intention to rule in favor of the defendant.”

The defendants assert that a voluntary dismissal was not authorized in the present case because it was clear from the language of the June 30,1986, order, which specified that the case would be dismissed with prejudice in the event the plaintiff failed to answer the interrogatories “within ten (10) days from the receipt of this order,” that the court already intended to dismiss the action with prejudice at the time that the plaintiff filed the dismissal. However, the trial court could not legitimately have dismissed the prior action without first affording the plaintiff “an opportunity to explain the circumstances surrounding the failure to comply with his order.” Serwitz v. Gen. Elec. Credit Corp., 174 Ga. App. 747, 750 (331 SE2d 95) (1985). Consequently, the trial court’s statement of its intention to dismiss the action in the event of her failure to comply with the discovery order cannot be considered an “announcement” by the court of its intention to rule, within the contemplation of Muhanna v. O'Kelly, supra. We accordingly hold that the trial court erred in granting the defendants motion for summary judgment.

Judgment reversed.

Birdsong, P. J., and Beasley, J., concur.


author: Deen, Presiding Judge.

text:
    76027.
    THOMAS v. THE STATE.
    (366 SE2d 177)
   Deen, Presiding Judge.

A Valdosta, Georgia, police officer received a report of the robbery of a convenience store and proceeded to the area to investigate. As he drove down a street near the store, he saw a person generally resembling the description of the robber as to race, build, and clothing. He stopped his car and approached the suspect, appellant Thomas, who thrust his hand into his pocket and began to back away. The officer, apprehensive that Thomas might be reaching for a weapon, drew his gun. With the assistance of other officers who arrived on the scene at just about that time, he conducted a pat-down search for weapons; in order to do so, it was necessary forcibly to remove the suspect’s hand from his pocket, and as the officers did so, a soft drink can fell to the sidewalk. It was pressed in and punctured in a manner that, as the officer’s experience in dealing with drug suspects had taught him, was employed by drug users to adapt the can for “crack” cocaine. Further search of the suspect’s pockets revealed the presence of a small quantity of cocaine, and Thomas was arrested and charged with possession of cocaine. After denial of his motion to suppress, appellant waived his right to a jury trial, and a Lowndes County judge found him guilty as charged. On appeal he enumerates as error the denial of his motion to suppress and the introduction into evidence of the cocaine found during the search. Held:

Decided February 3, 1988

Rehearing denied February 16, 1988

M. E. Thompson, Jr., for appellant.

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.

Our examination of the record, including the transcripts of both the trial and the hearing on the motion to suppress, reveals that the investigating officers had probable cause to conduct a pat-down search. Therefore, the evidence was admissible and there was no justification for the granting of the motion to suppress. See, e.g., Starr v. State, 159 Ga. App. 386 (283 SE2d 630) (1981). We find no error in the proceedings below.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    75444.
    DUKE TRUCKING COMPANY v. GILES et al.
    (366 SE2d 216)
   Carley, Judge.

As the result of a multi-vehicle collision which occurred on 1-75 in downtown Atlanta, appellee-plaintiffs filed this wrongful death action. Appellees sought a recovery against three defendants: Ms. Brenda Guy, who had driven her northbound vehicle in a southbound lane of 1-75 while allegedly intoxicated; Mr. Leroy Thompson, who was the driver of a truck which had more than six wheels; and, appellant Duke Trucking Company, the employer of Mr. Thompson and the owner of the truck that he was driving at the time of the collision. The case was tried before a jury. The jury’s verdict was against Ms. Guy and against appellant, but not against Mr. Thompson. Appellant appeals from the judgment of the trial court which was entered on the jury’s verdict.

1. Because the jury did not return a verdict against Mr. Thompson, the verdict against appellant cannot be based upon its vicarious liability for the negligence of its employee, but only upon its direct liability for its own negligence. The applicability of a Department of Transportation (DOT) regulation to the facts of this case is raised by several of appellant’s enumerations of error, including enumerations which address the general grounds. Appellees contend that, notwithstanding the jury’s verdict in favor of appellant’s driver, appellant’s own violation of this DOT regulation constitutes negligence per se and, that it is this violation that establishes the direct liability upon which the jury’s verdict against appellant is based.

The DOT regulation provides, in relevant part, that “[tjhose roadway sectors of the Atlanta Interstate Highways within 1-285, shall not allow truck service [by any truck having more than six wheels] except local truck trips on the following routes: 1-75, 1-85 and 1-20.” This regulation was promulgated by DOT pursuant to OCGA § 40-6-52 (a), which provides in pertinent part: “The Department of Transportation by order . . . may regulate or prohibit the use of any controlled-access roadway within [its jurisdiction] by any class or kind of traffic which is found to be incompatible with the normal and safe movement of traffic.” It is undisputed that, at the time of the collision and in ostensible violation of the DOT regulation, appellant’s truck was being operated on 1-75 within 1-285 for purposes of a “through” rather than a “local” trip. However, OCGA § 40-6-52 (b) also provides that “[t]he Department of Transportation . . . shall erect and maintain official traffic-control devices on the controlled-access highway on which such prohibitions are applicable. . . .” (Emphasis supplied.) Accordingly, it is not the mere presence of appellant’s truck on 1-75 within 1-285 with appellant’s acquiescence or at appellant’s direction that controls as to whether there was a violation of the DOT regulation. The issue of posting must also be considered.

It is undisputed that, at the relevant time there were only six locations where DOT had erected a device or sign regarding the prohibition upon the use by certain trucks of that portion of the interstate highway system lying within 1-285. All six of these locations were outside of 1-285 and were at points along the three interstate highways. Thus, it is undisputed that DOT had not erected any devices or signs along 1-285 itself so as to apprise motorists that certain trucks were prohibited from turning off that highway onto the interstate highway system lying within. Likewise, it is undisputed that DOT had not erected any devices or signs at points along the three interstate highways inside 1-285 so as to apprise the drivers of certain trucks that they were in violation of the regulation and that it was prohibited for them to proceed.

Starting his trip in appellant’s truck from a location outside I-285, Mr. Thompson initially approached and then turned onto 1-285 but his route for doing so was not one of the three interstate highways. The truck exited 1-285 directly onto that portion of 1-75 which lies within 1-285 and proceeded down 1-75 to the site of the fatal collision. Thus, it is undisputed that appellant’s truck arrived at the point of the fatal collision by following a route along no point of which DOT had ever posted a traffic-control device indicating a prohibition upon the truck’s presence.

“No provisions of this chapter which require official traffic-control devices shall be enforced against an alleged violator if at the time and place of the alleged violation an official device was not in proper position and sufficiently legible to be seen by an ordinarily observant person.” OCGA § 40-6-20 (b). Where, as here, the enforcement of traffic laws against an alleged violator is made conditional upon posting, a jury is not authorized to find negligence per se in the absence of proof that such posting has been accomplished. See Harper v. Brown, 122 Ga. App. 316, 318 (2) (176 SE2d 621) (1970). The DOT regulation itself is, at best, ambiguous as to whether it was intended to apply to vehicles, such as appellant’s, whose initial entry onto 1-75,1-85 or 1-20 was at a point which was already within 1-285. The method of posting that was selected by DOT certainly infers the intent that the restriction was to apply only to those vehicles which, unlike appellant’s, were already approaching 1-285 on one of the three interstate highways and would otherwise remain on that highway to travel through Atlanta. Regardless of DOT’s intent, however, its method of posting would preclude enforcement of the prohibition as against appellant’s truck. In order to enforce a prohibition on the act of entering that portion of the interstate highway system which lies within 1-285, it would be necessary that “at the time and place of the alleged violation an official device [be] in proper position and sufficiently legible to be seen by an ordinarily observant person.” OCGA § 40-6-20 (b). It is clear that at the time appellant’s truck first entered that portion of the interstate system lying within 1-285 — by turning off that highway onto 1-75 — there was no official device or sign posted in proper position and capable of being seen by Mr. Thompson. It follows that the trial court erred in holding that the DOT regulation was applicable in the present case and, therefore, erred in denying appellant’s motion for directed verdict and judgment notwithstanding the verdict as to this issue of negligence per se. See Harper v. Brown, supra.

2. Appellant enumerates as error the denial of its motion to amend the verdict. The only theory as to appellant’s direct liability for its own negligence was its alleged violation of the DOT regulation. However, as discussed in Division 1, the jury was not authorized to return a verdict against appellant on this negligence per se theory. The only theory of appellant’s direct liability for its own negligence having been eliminated, it would follow that the trial court erred in failing to grant appellant’s motion to amend the verdict. “In this case the liability of the [appellant] derives from the acts of [Mr. Thompson or not at all]. The jury found in favor of [Mr. Thompson], the [individual] through whom [appellant] acted. The verdict holding the [appellant] liable is inconsistent. The trial court erred by not granting the motion to amend the verdict [from one which was against to one which was] in favor of [appellant].” ESAB Distrib. v. Flamex Indus., 243 Ga. 355, 357 (1) (254 SE2d 328) (1979). See also Hughes v. Newell, 152 Ga. App. 618, 623 (263 SE2d 505) (1979); Roadway Express v. McBroom, 61 Ga. App. 223 (1) (6 SE2d 460) (1939). Compare Moffett v. McCurry, 84 Ga. App. 853 (67 SE2d 807) (1951); Reliable Transfer Co. v. Gabriel, 84 Ga. App. 54 (65 SE2d 679) (1951) (holding that where there was evidence of the employer’s negligence independent of the alleged negligence of the employee, a verdict in favor of the employee and against the employer was not inconsistent.)

Decided February 16, 1988.

Malcolm P. Smith, for appellant.

Citing Brannan Auto Parts v. Raymark Indus., 183 Ga. App. 82 (1) (357 SE2d 807) (1987), appellee contends that appellant has waived the right to challenge an inconsistent verdict. However, unlike the special verdict form that was used in Brannan Auto Parts v. Raymark Indus., supra, the verdict form in the present case did not suggest to the jury the propriety of an inconsistent verdict. Accordingly, as the result of our holding in Division 1, the judgment against appellant must be reversed as inconsistent in that there was no basis upon which a verdict could be returned against appellant other than in its capacity as the employer of Mr. Thompson. “ ‘We conclude that since the verdict exonerating the servant was a legal verdict and that part of the verdict awarding damages against [appellant as] the master was illegal and void under the doctrine of respondeat superior, it is unnecessary to require that a new trial be granted on the issue of liability of either defendant. Therefore, the trial court erred in refusing to amend the verdict and judgment to hold in favor of both defendants.’ [Cit.]” ESAB Distrib. v. Flamex Indus., supra at 357 (1).

3. Having determined that the judgment against appellant must be reversed for the reasons discussed in Divisions 1 and 2, appellant’s remaining enumerations of error are moot.

Judgment reversed.

Banke, P. J., concurs. Benham, J., concurs in Division 2 and in judgment.

Charles B. Tanksley, James C. Carr, Jr., for appellee.


text:
    75493.
    HAWKINS v. THE STATE.
    (366 SE2d 222)
    Decided February 16, 1988.

      Linda B. Borsky, for appellant.

      Thomas J. Charron, District Attorney, James F. Morris, Assis

      tant District Attorney, for appellee.
   Carley, Judge.

Appellant was tried before a jury and found guilty of theft by deception, theft by receiving stolen property, and removal and falsification of vehicle identification numbers with the intent to convert the vehicles. He appeals from the judgments of conviction and sentences entered on the jury’s verdicts.

1. Appellant enumerates a portion of the trial court’s pre-evidentiary statement to the jury as erroneous.

Error, if any, in that portion of the trial court’s pre-evidentiary statement under consideration was rendered harmless by the trial court’s subsequent giving of a correct charge on the legal principle involved. “[A] pre-evidentiary statement is not the equivalent of a jury charge; even if a portion thereof had been incorrect, where the principles of law were thoroughly covered in the main charge, the initial statement would not have misled the jury and would be harmless error. [Cit.]” Farmer v. State, 180 Ga. App. 720, 721 (1c) (350 SE2d 583) (1986). See also Phillips v. State, 183 Ga. App. 194 (1) (358 SE2d 480) (1987). This enumeration is without merit.

2. The trial court admitted, over appellant’s best evidence objection, certain documents purporting to show that a Mr. Jones owned a certain automobile.

Even assuming that the admission of this documentary evidence was error, there was other uncontradicted evidence offered at trial to show that Mr. Jones had purchased the automobile and was its owner. See generally Hightower v. Berlin, 129 Ga. App. 246, 248 (5) (199 SE2d 335) (1973). “The admission of improper evidence is harmless when the fact sought to be shown is otherwise fully and properly established. [Cits.] Thus, even if the admission of the [documentary] evidence had been error, it was cumulative and harmless.” Barrett v. State, 146 Ga. App. 207, 207-208 (245 SE2d 890) (1978). See also Garrett v. State, 156 Ga. App. 33 (2) (274 SE2d 80) (1980).

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


author: Pope, Judge. Deen, Presiding Judge,

text:
    75526.
    O'NEAL v. THE STATE.
    (365 SE2d 894)
   Pope, Judge.

Appellant was found not guilty by reason of insanity of the offenses of murder and aggravated assault and was ordered committed to a state hospital for the mentally ill. Appellant subsequently filed several petitions for release pursuant to OCGA § 17-7-131 (f), contending that he no longer met the civil commitment criteria contained in OCGA § 37-3-1 et seq. On each occasion the committing court denied appellant’s petitions for release based on a finding that appellant presented a substantial risk of harm to himself or others.

Appellant subsequently sought the court’s written permission to participate in a treatment plan designed to provide increased levels of responsibility both within the confines of the hospital and in the community. Under the final phase of the program, and as deemed appropriate by the staff of the hospital, appellant could eventually be awarded certain off-campus privileges to pursue educational or treatment programs not available to him at the treating facility. The committing court denied appellant’s request and held that it lacked the authority to grant or deny “privileges” to an insanity acquittee. The court further provided that “[t]he word ‘privileges’ as used herein means the authority to have the patient released from custody for educational or other purposes.” Held:

OCGA § 17-7-131, which governs the procedures to be followed upon a finding of not guilty by reason of insanity, specifically provides that “[w]henever a defendant is found not guilty by reason of insanity at the time of the crime, the court shall retain jurisdiction over the person so acquitted. . . .” OCGA § 17-7-131 (d). The statute also provides that “[i]n all cases in which the defense of insanity is interposed, the trial judge shall charge the jury . . . that should [the jury] find the defendant not guilty by reason of insanity at the time of the crime, this court will maintain custody and control of the defendant until the court is satisfied that the defendant is not a danger to himself or to others.” OCGA § 17-7-131 (b) (3) (A). Lastly, the statute provides that an insanity acquittee may only be discharged from commitment by order of the committing court. OCGA § 17-7-131 (f). “The intent of the legislature is clear beyond cavil that the committing court retains jurisdiction of the acquitted-committed defendant.” Moses v. State, 167 Ga. App. 556, 557 (307 SE2d 35) (1983).

The question presented by the present case is whether the committing court is empowered to render decisions allowing the insanity acquittee to enjoy a status which lies somewhere between total confinement and unconditional release. “OCGA § 17-7-131 [f] merely allows for release if the civil commitment criteria is not met and continued commitment if such criteria is present. The section, therefore, does not preclude a superior [committing] court from rendering any other decision it deems reasonably necessary. A superior court has general and broad powers in cases over which it has jurisdiction. See Johnson v. State, 177 Ga. 881 (1a) (171 SE 699) (1933). Subsections (4) and (8) of OCGA § 15-6-9 provide that superior courts have authority to ‘exercise all other powers necessarily appertaining to their jurisdiction’ and to ‘grant all other writs . . . which may be necessary to the exercise of their jurisdiction and which are not expressly prohibited.’ ” Roberts v. Grigsby, 177 Ga. App. 377, 385 (339 SE2d 633) (1985) (Pope, J., concurring specially).

“The purpose of commitment following an insanity acquittal, like that of civil commitment, is to treat the individual’s mental illness and protect him and society from his potential dangerousness.” Jones v. United States, 463 U. S. 354, 368 (103 SC 3043, 77 LE2d 694) (1983). Under OCGA § 17-7-131 (e) (5) the insanity acquittee is accorded “the right to have established an individualized service plan specifically tailored to the person’s treatment needs, as such plans are defined in Chapter 3 of Title 37 and Chapter 4 of Title 37.” Pursuant to OCGA § 37-3-1 (9) an “ ‘Individualized service plan’ means a proposal developed during a patient’s stay in a facility and which is specifically tailored to the individual patient’s treatment needs. Each plan shall clearly include the following:

“(A) A statement of treatment goals or objectives, based upon and related to a proper evaluation, which can be reasonably achieved within a designated time interval;

“(B) Treatment methods and procedures to be used to obtain these goals, which methods and procedures are related to these goals and which include a specific prognosis for achieving these goals;

“(C) Identification of the types of professional personnel who will carry out the treatment and procedures, including appropriate medical or other professional involvement by a physician or other health professional properly qualified to fulfill legal requirements mandated under state and federal law;

“(D) Documentation of patient involvement and, if applicable, the patient’s accordance with the service plan; and

“(E) A statement attesting that the chief medical officer has made a reasonable effort to meet the plan’s individualized treatment goals in the least restrictive environment possible closest to the patient’s home community.”

In the present case, appellant sought permission to have a phases of responsibility program incorporated into his individualized service plan. Under such a program, appellant’s treatment would include placing him in increasingly unstructured and unsupervised situations, or, as mandated by OCGA § 37-3-1 (9) (E) in the “least restrictive environment possible.” However, as stated hereinabove, in addition to the goal of treatment, it is also necessary in the case of insanity acquittees to protect both the acquittee and society from his potential dangerousness. Thus, any proposed treatment plan or program must be implemented with these twin goals in mind. Based on the committing court’s continuing jurisdiction over the insanity acquittee and recognizing “[the state’s] interest in invoking the judiciary’s expertise in criminal matters,” Benham v. Ledbetter, 785 F2d 1480, 1489 (11th Cir. 1986), we hold that a committing court has the authority to allow an insanity acquittee to pursue treatment, educational or other goals outside of the confines of the treating facility.

By so holding, however, we do not mean to suggest that a committing court is mandated to approve such a plan. As is the case in a petition seeking an outright release of the insanity acquittee, “[t]he [committing] court is entirely free to reject the recommendation of the staff of the institution.” Loftin v. State, 180 Ga. App. 613, 615 (349 SE2d 777) (1986); see also Arnold v. State, 173 Ga. App. 839 (328 SE2d 572) (1985). Rather, we hold only that the jurisdiction afforded committing courts pursuant to OCGA § 17-7-131 is not limited to the rendition of the initial commitment order and final release decision, but also encompasses the authority to render all other decisions necessary for the treatment of the insanity acquittee as well as those decisions necessary to ensure both the acquittee’s safety and the safety of the community.

The judgment of the court below is reversed, and this case is remanded to the court for further proceedings not inconsistent with this opinion.

Judgment reversed and case remanded.

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

Deen, Presiding Judge,

dissenting.

The majority opinion holds that “a committing court has the authority to allow an insanity acquittee to pursue treatment, educational or other goals outside of the confines of the treating facility.” I find no statutory authorization for such, view as mistaken any assumption of such authority under a theory of inherent power, and consider any kind of partial release of an insanity acquittee to be unwise; accordingly, I must dissent.

The commitment and release provisions of OCGA § 17-7-131 are fairly explicit. An insanity acquittee who is committed to the Department of Human Resources under OCGA § 17-7-131 (e) may be discharged from that commitment by the committing court only where the defendant proves that he no longer meets the criteria for civil commitment. (A person meets the criteria for civil commitment if he is mentally ill and presents a substantial risk of imminent harm to himself or others, or if he is mentally ill and so unable to care for his own health and safety as to be life-endangering. OCGA § 37-3-1 (2)). If such a defendant proves that he no longer meets the criteria, he gets released; if he fails to meet that burden of proof, he remains committed.

Decided February 16, 1988.

Robert G. Rubin, Susan C. Jamieson, Katherine E. Bissell, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, A. Thomas Jones, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

The provisions of OCGA § 17-7-131 simply do not envision a partial release, the purpose or goal of which presumably would be to increase the defendant’s mental health to the point where he no longer meets the criteria and can be released. In assuming the role of super-psychiatrist or judicial legislator, the majority opinion overlooks the practical pitfalls of such a possibility. All the insanity acquittees share two characteristics: they are mentally ill and dangerous. I have grave concerns over “partially releasing” into the community such people, who by law are still mentally ill and dangerous. Sooner or later, one of those “partially released” defendants will kill or rape or maim again; and, sooner or later, the State will be sued over such a “partial release.” Compare Roberts v. Grigsby, 177 Ga. App. 377 (339 SE2d 633) (1985). The legislature, in its concern for the welfare of society as a whole, wisely provided for no gray area in the matter of release of insanity acquittees. The majority opinion unwisely creates one judicially.

The majority opinion in part extracts authorization for partial release from the term, “least restrictive environment,” which permeates Chapters 3 and 4 of Title 37. However, OCGA § 37-3-1 (10) defines that term as “that which is the least restrictive available alternative, environment, or care and treatment, as appropriate, within the limits of state funds specifically appropriated therefor.” (Emphasis supplied.) Perhaps it would be appropriate to allow an insanity acquittee to participate in educational or less-supervised activities within the facility in which he is committed (if funded), but under no circumstance would I consider it appropriate to allow a partial release into the community of a person who under the law is mentally ill and a substantial risk of harm to himself or others.


author: Birdsong, Chief Judge.

text:
    75704.
    GRAHAM et al. v. HOGAN.
    (366 SE2d 219)
   Birdsong, Chief Judge.

This is an action at law (see Cantrell v. Henry County, 250 Ga. 822, 825 (301 SE2d 870)) in implied assumpsit for money had and received, in which the recipients of the money (Graham and his wife) appeal the grant of summary judgment to the plaintiff law firm, and the denial of Graham’s motion for summary judgment. The appellant Robert Graham received a check for $28,700 from his attorney in settlement of a 1978 judgment debt of $36,300 plus costs. The check was handed to Graham’s wife (who is also a party) and Graham deposited it the next day. Subsequently, he (and his wife) spent it. In fact, the plaintiff contends this payment was a mistake and that the check should have been for $2,880, representing Graham’s share of a total settlement of $6,500 collected on the judgment. Held:

1. The summary judgment granted to the appellee, plaintiff law firm, cannot be sustained. The basis of the summary judgment is the trial court’s finding that there was no dispute as to the amount actually owed to the appellant Graham and there was no evidence of any prejudice to the appellant.

The finding of the trial court thus amounts to a holding that if it is undisputed a payment was a mistake, the recipient must give it back, and his having spent it is not a “prejudice” which the law will protect. This is not exactly the law. The basis of the decision in Gulf Life Ins. Co. v. Folsom, 256 Ga. 400 (349 SE2d 368), upon which the trial court relied, is OCGA § 13-1-13, which provides that a payment made through ignorance of the law or where all the facts are known and no artifice, deception, or fraudulent practice used by the other party, “are deemed voluntary and cannot be recovered” unless it was forced by other named circumstances. (Emphasis supplied.) This law is amplified, but not restricted, by OCGA § 23-2-32 (a), to the effect that negligence of the complaining party, “that want of reasonable prudence, the absence of which would be a violation of legal duty,” will prevent recovery by equity. But an exception is given by paragraph (b) of § 23-2-32, in that “[r]elief may be granted even in cases of negligence by the complainant if it appears that the other party has not been prejudiced thereby.” Gulf Life Ins. Co., supra, p. 403.

On the basis of all the principles involved, the Supreme Court in Gulf Life concluded at p. 406: “In an action for money had and received, the plaintiff generally can recover a payment mistakenly made when that mistake was caused by his lack of diligence or his negligence in ascertaining the true facts and the other party would not be prejudiced by refunding the payment — subject to a weighing of the equities between the parties by the trier of fact.” (Emphasis supplied.)

Nearly all the alleged facts in this case are in dispute and the equities have not been weighed. In support of their summary judgment, the plaintiff-appellees have asserted that the appellants raised no evidence and no issues concerning the equities mentioned in Gulf Life, which are appellants’ good faith and their prejudice. Id., pp. 404-405. Appellees insist they pierced appellants’ defenses of good faith and the inequitability of restitution, by showing that appellants knew they might not receive any money in settlement of their judgment; that a settlement of $5,000 had been the only amount discussed with them and that appellants knew the judgment debtor might declare bankruptcy and were warned by the appellees not to expect more than $5,000; that appellant Robert Graham cashed the check before notifying the appellee attorneys that a mistake had been made; and that the appellants conclusively showed their bad faith by refusing to return the money when appellees notified them of the mistake.

These assertions are most assuredly not statements of undisputed fact, but are merely the argument of the appellees. The mere refusal to repay, by itself, cannot conclusively be deemed bad faith, if the recipient reasonably believes he legally does not have to repay. The record shows the appellants’ version of events is very different from the appellees’ assertions: the amount of the check was well within the amount of the judgment debt of $36,300 plus costs and interest since 1978, and the contingency to be kept by the attorneys had not been settled. A settlement offer of $5,000 had been discussed but appellant Robert Graham rejected the offer and the attorney was supposed to get more money and “get back in touch.” Appellants were not aware when an actual settlement had been reached. Mrs. Graham visited the appellees’ offices on another matter and was given the check. She was surprised and read it aloud: “$28,700,” and the attorneys laughed and told her they had “bluff[ed] their way through.” When his wife delivered the check to Robert Graham, he believed it to be the correct amount, but he attempted to call the attorney the next morning and numerous times during the week, to determine how they had received such a large amount. About a week later, Graham reached the attorney and did ask him how he was able to get that sum. The attorney responded that they bluffed their way through and had kept the debtor from going bankrupt; and the appellant Graham told the attorney how he was going to spend the money, including buying some property, to which the attorney responded, “Don’t go wild.” At this time appellant had spent only a small part of the money, but after this conversation he spent all of it.

Neither this court nor the trial court is authorized to decide that the appellee’s version of events is the truth and the appellants’ is not. If what the appellants say is true, it might then, in weighing the equities, be said they dealt in good faith. And the appellee’s negligence or mistake might have been a “want of reasonable prudence, the absence of which would be a violation of legal duty” to the appellants (OCGA § 23-2-32 (a)); or, even if this negligence did not quite amount to a “violation of legal duty,” nevertheless, if it operated to the prejudice (§ 23-2-32 (b)) of the appellants who acted in good faith, it might, in the weighing of the equities, prevent appellee from forcing restitution. See Gulf Life, supra, p. 406, quoted infra.

As for whether appellants were prejudiced, in Gulf Life, supra at 406, the court commented that the mere fact the recipients had spent the money “generally does not constitute ‘prejudice’ but the court (p. 405) held this issue of prejudice may be stated generally to be whether the “ ‘circumstances have so changed that it would be inequitable to require full restitution.’ ” Department of Administrative Svcs. v. Pritchett, 160 Ga. App. 294, 295 (287 SE2d 290). That determination would very much depend on what the appellants spent it for and what obligations, i.e., losses, they incurred as a result of the appellees’ negligence or mistake and their own good faith. Obviously if the recipient keeps the money intact and handy to return, he is not prejudiced by having received it; and in fact just about the only way he will have been prejudiced would be to spend it. Therefore, the question is not, did he spend it, but was he harmed?

The trial court erred in granting summary judgment to the appellee, there being broad disputes of evidence, very clear issues of fact, and undetermined equities (Gulf Life Ins. Co., supra), including the appellants’ good faith and prejudice, and the extent to which either of them received and used the money.

2. The trial court did not err in denying summary judgment to the appellants Robert Graham and Muriel Graham on the appellee’s count of fraud. The appellee alleged the Grahams’ failure to apprise appellee of the amount of the check they had received and their negotiation of it amounted to fraud, since Robert Graham “knew that the amount of the check . . . was far in excess of any amount he was to receive as a settlement relating to the judgment”; and that this “failure to apprise” amounted to a material misrepresentation.

This “failure to apprise” is not a material misrepresentation, but, even though it is difficult to see how the appellants can be charged with concealment of what the appellees are charged with knowing, mere concealment will support an action for fraud if done in such a manner as to deceive and mislead. OCGA § 51-6-2 (a). Also, though it not be actual fraud, constructive fraud may arise out of any act of omission or commission, contrary to legal or equitable duty, trust or confidence justly reposed, which is contrary to good conscience and operates to the injury of another; and constructive fraud may moreover be consistent with innocence and not smacking with moral guilt. OCGA § 23-2-51. The particular circumstances of a case may give rise to a duty to disclose, violation of which might be fraud (§ 23-2-53), as might be any unfair way used to cheat another (§ 23-2-56); and being in itself subtle, fraud may be proved by slight circumstances. OCGA § 23-2-57. If everything occurred exactly as the appellee says it did, the finder of fact might conclude the appellants committed a fraud. The trial court did not err in denying them a summary judgment.

Decided February 16, 1988.

Charles R. Desiderio, for appellants.

Richard L. Moore, for appellee.

3. The trial court did not err in denying summary judgment to Muriel Graham, which she sought on grounds she did not receive the money. If she spent any of it, she obviously received it; and if she knew her having it was a mistake, then she might not have been in good faith and, in the equities, she might be obliged to return it.

Judgment affirmed in part and reversed in part.

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


text:
    75721.
    BEHAR v. AERO MED INTERNATIONAL, INC.
    (366 SE2d 223)
   Birdsong, Chief Judge.

This is an interlocutory appeal from an order of the State Court of Chatham County denying appellant’s motion to dismiss on the grounds of lack of personal jurisdiction of appellant. Held:

1. In this appeal certain allegations of fact are found only in the briefs of the respective parties or in their unverified pleadings. In determining whether this court should consider the factual allegations contained in the briefs and pleadings of the parties, which are not otherwise supported by the trial record, the following principles apply.

A motion to dismiss for lack of personal jurisdiction is a motion in abatement and not a motion in bar. Hemphill v. Con-Chem, 128 Ga. App. 590, 591-592 (197 SE2d 457); see Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614 (208 SE2d 459); Myers v. McLarty, 150 Ga. App. 432, 433 (258 SE2d 56). Thus, motions to dismiss for lack of personal jurisdiction cannot be disposed of as motions for summary judgment. Id. The proper procedure in disposing of matters in abatement before trial is found in OCGA §§ 9-11-12 and 9-11-43. Ogden Equip., supra at 615. Motions to dismiss for lack of jurisdiction over the person, OCGA § 9-11-12 (b) (2), when tried on affidavits pursuant to OCGA § 9-11-43 (b), do not become motions for summary judgment. See McPherson v. McPherson, 238 Ga. 271 (1) (232 SE2d 552). However, affidavits made in support of OCGA § 9-11-12 (b) motions must conform to the requirements of OCGA § 9-11-56 (e). Although the requirements of OCGA § 9-11-56 (e).are not expressly applicable to affidavits in general, those requirements stand as a codification of the common law requirements as to affidavits and hence are applicable as such. Id. In addition to the use of affidavits, a matter admitted under OCGA § 9-11-36, unless duly withdrawn or amended, conclusively establishes such matter. OCGA § 9-11-36 (b). These admissions, being in the nature of evidence and relating to the proof, can be considered by the factfinder upon being introduced in evidence. Brooks v. Roley & Roley Engineers, 144 Ga. App. 101 (1) (240 SE2d 596); Warner Robins Tree Surgeons v. Kolb & Co., 181 Ga. App. 20 (1) (351 SE2d 486).

Regarding factual representations contained in the briefs of parties which are not supported by evidence of record, the appellate courts of this state have consistently held that such unsupported factual assertions cannot be considered in the appellate process. See Coweta Bonding Co. v. Carter, 230 Ga. 585 (1) (198 SE2d 281) (appeal from the denial of a motion to set aside the forfeiture of a criminal appeal bond and a restraining injunction); Coopers & Lybrand v. Cocklereece, 157 Ga. App. 240 (2) (276 SE2d 845) (jurisdiction — long arm statute); Konscol v. Konscol, 151 Ga. App. 696 (1) (261 SE2d 438) (appeal from a support order). This rule clearly applies to the unsupported assertions of fact contained in the briefs of these parties. Id.

As a general rule, allegations contained in pleadings do not constitute evidence nor are they to be accepted as true except to the extent they are admitted by the opposite party to be true. Crane v. Doolittle, 116 Ga. App. 572 (2) (158 SE2d 426). Thus, in Coopers & Lybrand v. Cocklereece, supra at 245, this court held that personal jurisdiction over the defendant Coopers & Lybrand was not established by the evidence of record, noting that the plaintiff, Cocklereece, “[a]t best. . . has made allegations in his pleadings and arguments in his briefs. . . .” (Emphasis supplied.)

Further, OCGA § 9-11-56 (e) contains the following requirement regarding forms of proof in resolving summary judgment issues, “an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial.” (Emphasis supplied.) We believe that this statutory requirement is no less applicable to motions to dismiss on the grounds of lack of personal jurisdiction than are the affidavit requirements also found in this subsection. See generally McPherson v. McPherson, supra, regarding the applicability of Rule 56 (e) affidavit requirements to affidavits used in support of Rule 12 (b) motions.

We are aware of no sound reason for not applying the same rule applicable to unsupported factual allegations in briefs to the mere allegations of facts contained in unverified pleadings but not otherwise supported in the record. Factual assertions contained in unverified pleadings, which do not require a responsive pleading, remain mere allegations of fact, unless they are duly admitted by the opposing party. But, factual assertions contained in unverified pleadings, which do require a responsive pleading, are admitted when not denied in the responsive pleading. See generally OCGA § 9-11-8 (d). Accordingly, this court will not consider mere allegations of fact found in the parties’ pleadings. However, we believe that it is in the interests of judicial economy to consider as evidence in resolving motions in abatement those factual matters duly admitted during pleadings under the above procedures. We are satisfied that this rule will insure that evidence of such character is equal in quality as to truth as is that evidence expressly referred to in OCGA § 9-11-43. We neéd not resolve at this time the evidentiary value of facts asserted in a verified pleading which either are not admitted or are denied by the opposing party. We will apply these principles to aid us in the proper disposition of this case.

2. Appellant enumerates as error that the trial court erred in denying appellant’s motion to dismiss based on lack of personal jurisdiction.

The record establishes the following facts. Appellant is 77 years of age, has an eighth grade education, is retired, and resides in the state of Pennsylvania. In July 1986, appellant took a cruise aboard the Carnival Cruise Lines, MS Holiday. During the voyage, appellant suffered a stroke. Initially, he was treated by the ship’s doctor who advised the appellant that his medical condition was serious, that nothing could be done for him aboard ship, and recommended medical evacuation by plane. The doctor advised appellant and his traveling companion (an attorney from Israel) that the cost of medical evacuation would be between $8,000 and $10,000. The doctor also advised the appellant that the latter would be billed at home for the medical evacuation and that a doctor would be aboard the plane to accompany appellant on the flight home. As a result of the stroke, appellant was suffering from “complete left lower extremity paralysis.” It was under these circumstances that appellant agreed to the doctor’s recommendations for medical evacuation by air. Thereafter the ship’s doctor apparently contacted appellee and arranged for appellant’s medical transport home. The ship’s medical log contains the following confirming entry, “[p]lan: [t]o be flow via AeroMed to Allentown, Pa. tomorrow on arrival at St. Maarten.”

When the ship anchored at St. Maarten, appellant and his traveling companion were taken to the airfield. At the airfield, a plane and two pilots (one of whom apparently was a co-pilot) and a nurse were waiting. Apparently, this plane and crew had been arranged by the appellee based upon phone negotiations conducted by an agent of the appellee and the ship’s doctor or some person on the ship other than appellant and his traveling companion. Appellee is a Georgia corporation and it may be inferred from the trial record that the phone conversation resulted from a call being initiated aboard the ship to the appellee’s agents in Georgia.

Upon appellant’s arrival at the airfield, by ambulance and on a stretcher, the pilot presented appellant’s traveling companion and apparently the appellant with a bill for the medical evacuation in the amount of $15,560. Both appellant and his traveling companion informed the pilot what the ship’s doctor had said about the cost of the flight. The cost of the services was still being disputed when appellant’s traveling companion informed the pilot that the crew would be responsible for the health of appellant and for any delay caused by their argument about costs. The pilot then took appellant airborne but once in the air continued to argue about the flight costs. Apparently no satisfactory resolution of the costs was reached as the pilot landed the airplane at Nassau, and stated that the plane would not proceed further unless appellant agreed to pay them the amount of $15,560. Subsequently, the pilot said that he had been in contact with his supervisor who agreed that the plane should not proceed with the flight. Appellant became very excited and his blood pressure rose. At some point the nurse spoke with the pilots when he was talking on the phone with his office. The pilot then stated that they would continue the flight provided that payment was received within 24 hours. Thereafter, either appellant or his traveling companion replied that they would report the matter to the public health authorities; in any event following a one-hour delay in Nassau, the plane proceeded to fly appellant to Pennsylvania. Throughout the entire flight, appellant was never physically present in the state of Georgia. At the conclusion of the flight, a $5,000 check was tendered on behalf of the appellant allegedly in payment for the flight costs.

The appellee brought suit against appellant based on theories of both breach of contract and tort (fraud), and avers that jurisdiction exists under the long-arm statute of this state, OCGA § 9-10-91 (1) and (3).

We find the case of Gust v. Flint, 257 Ga. 129 (356 SE2d 513) to be dispositive. In that case, the Supreme Court reversed the decision of this court in Flint v. Gust, 180 Ga. App. 904 (351 SE2d 95), holding that “[t]he unrebutted affidavits filed in support of the out-of-state defendants’ motion to dismiss clearly establish that the defendants have done none of the acts set forth in OCGA § 9-10-91 which must be done in order to subject them to personal jurisdiction of a Georgia court.” Id. at 130. The facts of this case reflect that Flint, a Georgia resident, responded to an advertisement printed in a trade paper published outside the state but mailed to Flint in Georgia. Flint, responding to the ad, personally contacted the defendants by telephone and a bargain was struck between the parties at that time. Pursuant to the terms of the bargain, Flint sent the defendants a $6,000 deposit. After the defendants received the deposit, they stated they could not deliver the truck and trailer ordered and attempted to switch a substitute therefor. When Flint refused to accept the substitution offered, the defendants refused to return his deposit. Flint filed suit in Georgia, and the defendants moved to dismiss the complaint alleging that they were not subject to personal jurisdiction under the Georgia long-arm statute. In support of their motion, defendants filed an affidavit, that was not traversed, showing in pertinent part that the defendants (a) did not regularly do business or solicit business within Georgia; (b) did not engage in any persistent course of conduct in Georgia; and (c) did not derive substantial revenue from services rendered with the state of Georgia. The affidavit submitted by the appellant in this case, together with the uncontested facts, and reasonable inferences therefrom, contained in the medical records properly before this court and the letters of appellant’s traveling companion, establish substantially the same relevant evidence for purposes of resolving the question of jurisdiction as was before the Supreme Court in Gust v. Flint. Accordingly, we find that the record before us clearly establishes that none of the required acts set forth in OCGA § 9-10-91 has been done by the appellant in this case, and that therefore personal jurisdiction is lacking over the appellant. Conversely, we find that the facts of this case are distinguishable from those found in Shellenberger v. Tanner, 138 Ga. App. 399 (227 SE2d 266) and that Shellenberger is not dispositive of the issues raised by the unique facts before us.

Further, subsections (1), (2) and (3) of OCGA § 9-10-91 all require that in order to subject the nonresident defendant to the jurisdiction of Georgia courts, it must be established that the nonresident had “minimum contacts” in this state so that the exercise of jurisdiction is consistent with “ ‘traditional notions of fair play and substantial justice.’ ” Yarbrough v. Estate of Yarbrough, 173 Ga. App. 386, 387 (326 SE2d 517), citing International Shoe Co. v. State of Washington, 326 U. S. 310, 316 (66 SC 154, 90 LE 95); see Davis Metals v. Allen, 230 Ga. 623, 625 (198 SE2d 285). Notwithstanding other relevant considerations, “the constitutional touchstone remains whether the defendant purposefully established ‘minimum contacts’ in the forum State.” Burger King Corp. v. Rudzewicz, 471 U. S. 462, 474 (105 SC 2174, 85 LE2d 528). It is critical to this due process analysis that the nonresident defendant’s “ ‘conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.’ ” Id. Generally, a potential defendant should “ ‘reasonably anticipate’ out-of-state litigation” when it is shown that there was some act by which the defendant purposefully availed himself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. Id. at 474-475. As stated in Burger King, “[t]his ‘purposeful availment’ requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts. ...” Id. at 475. Although it is true that “[s]o long as it creates a ‘substantial connection’ with the forum, even a single act [by the nonresident defendant] can support jurisdiction,” nevertheless “ ‘some single or occasional acts’ related to the forum may not be sufficient to establish jurisdiction if ‘their nature and quality and the circumstances of their commission’ create only an ‘attenuated’ affiliation with the forum.” Id. at 475, fn. 18. “This distinction derives from the belief that, with respect to this category of ‘isolated’ acts, [cit. omitted] the reasonable foreseeability of litigation in the forum is substantially diminished.” (Emphasis supplied.) Id. at 476, fn. 18.

Applying these principles to the facts of this case, we are satisfied that in view of the posture of the record before us, the telephone contact that someone on board ship (other than the appellant and his traveling companion) had with the Georgia based appellee did not create a “substantial connection” with the forum within the meaning of Burger King.

Further, assuming arguendo that the appellant had duly constituted the ship’s doctor as his agent to arrange his medical evacuation, that the ship’s doctor did not exceed the scope of his authority in negotiating a medical evacuation contract with appellee that substantially exceeded the cost estimate which the doctor had given the appellant, and that a binding contract was formed during the telephone conversation between the doctor and the Georgia based appellee, we nevertheless are convinced that under the unique and extenuating facts of this case, the appellant had only an “ ‘attenuated’ affiliation” and not a “substantial connection” with the forum in this instance. Thus, we are satisfied that the appellant, under these trying circumstances, could not reasonably foresee being haled into a court of this sovereign state.

Judgment reversed.

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

Decided February 16, 1988.

George L. Lewis, for appellant.

George M. Hubbard III, for appellee.


text:
    75939.
    BANKS v. THE STATE.
    (366 SE2d 228)
   Banke, Presiding Judge.

The appellant was convicted of kidnapping and rape. His primary contention on appeal is that the trial court erred in admitting evidence of an alleged similar criminal transaction for which he had previously been tried and acquitted.

The alleged victim in the present case, Joy Ramsey, testified that the appellant had followed her home from a gas station while she was returning home from high school on the afternoon of February 5, 1985, forced her at knife point to get into his pickup truck, and then transported her to a wooded area where he raped her. Additional evidence was introduced by the state which tended to corroborate Ms. Ramsey’s testimony. The appellant testified that Ms. Ramsey had invited him to follow her home and had both entered his truck and engaged in sex with him voluntarily.

Over the appellant’s objection, asserted by motion in limine, the state was allowed to present testimony by a Ms. Cathy Grady to the effect that on the night of October 31, 1983, the appellant had abducted and robbed her as she was leaving her place of work in Spalding County to go home. Ms. Grady testified that the appellant approached her vehicle as she was preparing to drive home, pulled a pistol on her, ordered her to move over to the passenger side of the front seat, and then forced her to sit with her head between her legs while he drove the vehicle. The encounter was terminated by the intervention of a law enforcement officer, whose attention was drawn to the car by the fact that its headlights were not on. Ms. Grady testified that during the course of her abduction, the appellant had demanded and received her pocketbook. The appellant was subsequently indicted in Spalding County on charges of kidnapping, armed robbery, and possession of a firearm during the commission of a crime; however, he was acquitted of these charges following a trial at which he testified that he and Ms. Grady had had an ongoing sexual relationship and that he had been driving her vehicle at her invitation. Held:

1. In Moore v. State, 254 Ga. 674 (333 SE2d 605) (1985), the Georgia Supreme Court held that evidence of prior criminal misconduct on the part of a defendant which would otherwise be relevant and admissible to prove identity, motive, bent of mind, or course of conduct is rendered inadmissible under the doctrine of collateral estoppel where the defendant has been tried and acquitted of the alleged prior offense. Quoting from the decision of the United States Court of Appeals for the Fifth Circuit in Wingate v. Wainwright, 464 F2d 209, 215 (5th Cir. 1972), the court reasoned that “ ‘[i]t is fundamentally unfair and totally incongruous with our basic concepts of justice to permit the sovereign to offer proof that a defendant committed a specific crime which a jury of that sovereign has concluded that he did not commit.’ ” Moore v. State, supra at 675.

The state’s purpose in putting Ms. Grady on the stand in the present case was obviously to establish that, contrary to the jury’s verdict in the Spalding County case, the appellant had in fact abducted Ms. Grady against her will, and thereby to persuade the jury in the present case that, contrary to his testimony, he had also abducted Ms. Ramsey against her will. Indeed, the state’s closing argument was characterized repeatedly by such assertions as, “you’re dealing with ... [a] man that has had a similar experience just over a year ago in Spalding County with another white girl,” and “you have a duty to tell [the appellant] that you got away once, buddy, but you’re not going to get away twice.” Under the Georgia Supreme Court’s decision in Moore, this attempt to relitigate the Spalding County case was clearly impermissible. Accord Lucas v. State, 178 Ga. App. 150 (342 SE2d 377) (1986); Riley v. State, 181 Ga. App. 667 (1) (353 SE2d 598) (1987). See also Lewis v. State, 179 Ga. App. 121 (3) (346 SE2d 70) (1986).

We reject the state’s apparent argument that Ms. Grady’s testimony concerning the Spalding County incident was admissible for impeachment purposes because the appellant, when questioned during the trial of the present case about the Spalding County incident, gave testimony which was inconsistent with the testimony he had given during the trial of that case. Quite obviously, the appellant would not have been called upon to explain his conduct in connection with the prior case at all had not the state sought to relitigate that case by introducing Ms. Grady’s testimony.

We similarly reject the state’s argument that because the appellant was not charged with rape in connection with the Spalding County incident, Ms. Grady’s testimony can only be viewed as harmful in connection with his kidnapping conviction in the present case and not in connection with his rape conviction. Clearly, by introducing Ms. Grady’s testimony the state sought to prove that the appellant had acted forcibly and without the consent of his alleged victim in the present case, both with respect to the rape charge and with respect to the kidnapping charge. Moreover, with reference to the Spalding County case, the state’s attorney openly speculated to the jury during his closing argument that “had it not been for the lights that night on [Ms. Grady’s] car failing to operate, we might have had some other similarities to present to you.”

While we understand the state’s desire to correct what might appear to some to have been an injustice in the Spalding County case, there is no question that under the Supreme Court’s decision in Moore, supra, the admission of Ms. Grady’s testimony requires the reversal of both of the convictions which are the subject of this appeal. As stated in Moore, “[t]he fact that there is other sufficient evidence to convict does not make the error harmless; rather the test is whether the evidence may have influenced the jury’s verdict.” Id. 254 Ga. at 677. Given the importance which the state sought to attribute to Ms. Grady’s testimony during its closing argument in the present case, it will not now be heard to argue that there was no reasonable possibility that her testimony influenced the jury’s verdict. Accord Lucas v. State, supra, 178 Ga. App. at 152.

2. The appellant enumerates as error the trial court’s refusal to allow him “to prove the moral and sexual character and behavior of the alleged victim,” contending that the state opened the door to such an inquiry by introducing testimony that Ms. Ramsey had been “going with” a certain male friend “on a steady basis . . . for a period of a year or two.”

Evidence concerning the victim’s past sexual behavior is, of course, inadmissible in a prosecution for rape, absent a showing that such sexual behavior “directly involved the participation of the accused” or otherwise would support an inference “that the accused could have reasonably believed that the complaining witness consented to the conduct complained of in the prosecution.” OCGA § 24-2-3 (b). We cannot agree that the state “opened the door” to an inquiry regarding Ms. Ramsey’s past sexual experience, if any, in the present case merely by introducing evidence that she was “going steady” with someone at the time of her alleged abduction.

3. The appellant contends that a new trial should have been granted due to a purported conflict between Ms. Ramsey’s testimony that she had complied with the appellant’s instructions to remain crouched down on the seat of his truck while she was inside the vehicle and the testimony of another witness called by the state, who maintained that she had seen someone besides the appellant sitting in the truck on the afternoon in question. This enumeration of error is without merit. “The appellate courts do not weigh the evidence or determine the credibility of the witnesses, but look only to determine if the evidence is sufficient such that a reasonable trier of fact could rationally have found proof of guilt beyond a reasonable doubt.” Jamison v. State, 162 Ga. App. 635 (292 SE2d 515) (1982). Even absent the testimony regarding the alleged prior offense in Spalding County, the evidence in the present case was amply sufficient to have enabled a rational trier of fact to find the appellant guilty of kidnapping and rape beyond a reasonable doubt.

Decided February 16, 1988.

James E. Bischoff, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, J. David Fowler, William H. Stevens II, Assistant District Attorneys, for appellee.

4. The appellant’s remaining enumerations of error are deemed abandoned pursuant to Rule 15 (c) (2) of this court due to his failure to provide any argument or citation of authority in support thereof.

Judgment reversed.

Birdsong, C. J., and Beasley, J., concur.


text:
    75591.
    DUNCAN v. THE STATE.
    (366 SE2d 154)
   Birdsong, Chief Judge.

Appellant was convicted of improper lane usage and DUI by the Gwinnett County Recorder’s Court. Appellant filed an appeal pursuant to OCGA § 40-13-28 and the Gwinnett County Superior Court dismissed the appeal. Appellant appeals to this court and has enumerated the following two errors: (a) that the superior court erred in dismissing appellant’s appeal and not hearing the case on its merits; and (b) that the recorder’s court erred in trying appellant for a violation of state law over which it had no jurisdiction.

We have appellate jurisdiction over the first enumerated error pursuant to OCGA § 5-6-34, and over the second enumerated error pursuant to OCGA § 5-6-34 (c). We will address appellant’s second enumerated error first, because if his contentions are correct, the resolution of this issue will be dispositive of this appeal.

1. Did the recorder’s court lack subject matter jurisdiction over the charged offenses? The record reveals that appellant was cited by the arresting officer for improper lane usage “in Violation of Section 40-6-48 (1) of . . . State Law” and for driving under the influence “in Violation of Section 40-6-391 (A) (1) of . . . State Law.” The record contains no express showing that the prosecutor ever exercised its prosecutorial discretion under OCGA § 40-6-376 to amend these citations to violations of a local ordinance. See, e.g., OCGA § 40-6-375. Further, at trial, the court advised the appellant that “you do understand this being a State offense, you do have the right to a trial by jury?” (Emphasis supplied.) Appellant executed a written waiver of rights for a trial by jury and elected to be tried by the court; however, the offenses listed on the waiver sheet were referred to merely as DUI and improper lane usage, and not as a violation of local ordinance. The court ultimately found appellant guilty “of the charge of driving under the influence as well as the lane change violation”; and, the disposition and sentence portion of the two Uniform Traffic Citation/ Summons/Accusation/Warning forms reflect that appellant was so convicted. In view of the above, we are satisfied that appellant has been tried and convicted in recorder’s court for violations of state law rather than for a violation of local ordinance as asserted by the appellee.

Decided January 25, 1988

Rehearing denied February 17, 1988

Virgil L. Brown, for appellant.

Robert S. Jones, Solicitor, for appellee.

Art. VI, Sec. I, Par. I of the Georgia Constitution of 1983 vests the “judicial power of the state” in specific classes of courts. County recorder’s courts are not among those vested with such power. The provisions of this constitutional paragraph are expressly made applicable to recorder’s courts, and constitute a limitation on their jurisdiction. Thus, county recorder’s court cannot exercise state judicial power. Accordingly, the recorder’s court of Gwinnett County was without jurisdiction to try appellant for a violation of state law, rather than for a violation of a county ordinance. See State v. Millwood, 242 Ga. 244, 246 (248 SE2d 643); City of Atlanta v. Landers, 212 Ga. 111, 113 (90 SE2d 583); Parker v. State, 170 Ga. App. 333 (1) (317 SE2d 209); Wallace v. State, 112 Ga. App. 505 (1) (145 SE2d 788). Thus, the proceeding by the recorder’s court in the case at bar is null and void. As the proceeding was null and void, OCGA §§ 16-1-7 (b); 16-1-8 (a) and (b); and 40-6-376 (c) do not prohibit appellant’s retrial on grounds of double jeopardy or prior prosecution. See OCGA § 16-1-8 (d) (1); Parker v. State, supra at 334.

2. In view of the disposition of the second enumerated error, we need not address the merits of appellant’s first enumerated error.

Judgment reversed.

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