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

text:
    A89A1420.
    BARBER v. PERDUE.
    (390 SE2d 234)
   Beasley, Judge.

Appellant Jack McWhorter “Mac” Barber filed a lawsuit against appellee Tom Perdue, a former administrative aide to the governor, alleging that Perdue had libeled and slandered Barber. This appeal follows the grant of summary judgment to Perdue.

The alleged libel was contained in a letter sent out by Perdue at the beginning of August 1986 to approximately 350 various city and county officials throughout Georgia during the 1986 political campaign for a seat on the Public Service Commission. Appellant had resigned from the PSC seat in February 1985 and then qualified to run in the 1986 election against Gary Andrews, a recent appointee to the position from which Barber had resigned. In July 1986, an Andrews press conference was held at which certain public documents from an investigative file on Mac Barber were released. Shortly thereafter Per-due sent the letter, as follows, on plain stationery with his home address:

Lately, I have called on you often to ask for your assistance, and there is no way to really express in a letter my appreciation for the consideration and response you have provided. Now, once again, I must ask for your help.
A year and a half ago, a Public Service Commissioner betrayed the public trust and tarnished his own reputation and, indirectly, that of all public officials by accepting what amounted to a bribe. When confronted with the fact that the Attorney General and the Georgia Bureau of Investigation had this information and were about to seek a felony indictment, Mac Barber chose to resign his office rather than face the prospect of indictment and conviction. The trucking company official who gave Mac Barber the money was convicted and fined a total of $12,000.00!
This situation has occurred twice since Governor Harris has been in office. The first official was, as you remember, Sam Caldwell, who also betrayed the public trust and later was convicted of defrauding the state. Under pressure, he resigned as Labor Commissioner. To my way of thinking, Mac Barber and Sam Caldwell are two of the biggest embarrassments that state government has ever suffered.
As specified by the State Constitution, when these vacancies occurred, Governor Harris was required to make appointments to fill them. In the case of the Labor Commissioner, the Governor appointed Joe Tanner, and in the case of the Public Service Commissioner, he appointed Gary Andrews. In contrast to their predecessors, these two men epitomize what a public servant should be. They have integrity and character and stand for what is right, good, and fair. While managing the responsibilities of their jobs, they also have had to rebuild the public trust and confidence Mac Barber and Sam Caldwell destroyed in those positions and in state government.
My request of you at this time is that you please do everything you possibly can during the last week of the campaign to make sure that Gary Andrews and Joe Tanner are elected. The people of Georgia deserve officials they can trust and honesty in state government.

The alleged slander consisted of Perdue’s comments to an Albany newspaper reporter along the same lines as the letter.

“A libel is a false and malicious defamation of another, expressed in print . . . , tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” OCGA § 51-5-1 (a). “Libel per se consists of a charge that one is guilty of a crime, dishonesty or immorality. [Cit.]” Grayson v. Savannah News-Press, 110 Ga. App. 561, 566 (139 SE2d 347) (1964). “Slander or oral defamation consists in: (1) Imputing to another a crime punishable by law . . . .” OCGA § 51-5-4 (a). Bribery is such a crime. OCGA § 16-10-2.

Appellant concedes, for purposes of this action, that he is a “public figure” who is prohibited “from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times v. Sullivan, 376 U. S. 254, 279-280 (84 SC 710, 11 LE2d 686) (1964). Inasmuch as the First Amendment mandates that a public figure plaintiff prove actual malice by clear and convincing evidence (id. at 285-286; Harte-Hanks Communications v. Connaughton,_U. S__(109 SC 2678, 105 LE2d 562) (57 LW 4846) (1989); Williams v. Trust Co. of Ga., 140 Ga. App. 49, 52 (230 SE2d 45) (1976)), “a court ruling on a motion for summary judgment [in such a case] must be guided by the New York Times ‘clear and convincing’ evidentiary standard in determining whether a genuine issue of actual malice exists — that is, whether the evidence presented is such that a reasonable jury might find that actual malice had been shown with convincing clarity.” Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 257 (106 SC 2505, 91 LE2d 202) (1986).

The case is not ripe for summary judgment in favor of defendant as the moving party. The four-volume record shows that there are material factual disputes which are relevant to the issue of knowledge or at least reckless disregard, which themselves are material to the pivotal issue of actual malice in the promulgator’s issuance of the statements.

In deciding motions for summary judgment, our rule is the same under OCGA § 9-11-56 as is the rule under FRCP 56. The Supreme Court framed it: “The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Adickes [v. S. H. Kress & Co.], 398 US [144], at 158-159. . . .” Anderson, supra at 255, Eiberger v. West, 247 Ga. 767 (281 SE2d 148) (1981); Burnette Ford v. Hayes, 227 Ga. 551 (181 SE2d 866) (1971). The question of law before us is whether, in this posture, viewing all the direct and circumstantial evidence and reasonable inferences in plaintiff’s favor, a jury could find by clear and convincing evidence that defendant sent the letter or made any of the untrue statements “ ‘with knowledge that it was false or with reckless disregard of whether it was false or not.’ ” Anderson, supra at 244, quoting New York Times Co. v. Sullivan, 376 U. S. 254, 279-280, supra. Such would constitute the element of actual malice which is an ingredient of a defamation case of this type.

Although “clear and convincing” is a more stringent standard than “preponderating” and requires a greater quantum and a high quality of proof in plaintiff’s favor, Anderson, supra at 254, it has been recognized that proof of actual malice “does not readily lend itself to summary disposition,” Hutchinson v. Proxmire, 443 U. S. 111, 120, n. 9 (99 SC 2675, 61 LE2d 411) (1979). See Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d, § 2730, pages 240-245. This is because, as said in Hutchinson, proof of actual malice “calls a defendant’s mind into question.” Proof of state of mind “could be in the form of objective circumstances from which the ultimate fact could be inferred” as well as direct evidence from defendant. Herbert v. Lando, 441 U. S. 153, 160 (99 SC 1635, 60 LE2d 115) (1979). Because of the very nature of this element of the tort, Herbert pointed out that “[cjourts have traditionally admitted any direct or indirect evidence relevant to the state of mind of the defendant and necessary to defeat a conditional privilege or enhance damages.” Id. at 165. Evidence of motive may bear a relation to the actual malice inquiry. Harte-Hanks Communications, supra, 57 LW at 4849.

Because of the opportunities for having or obtaining, from objective sources, a knowledge of the true facts prior to publication of the statements, which on their face were libelous if not true, OCGA § 51-5-4 (a), defendant has not conclusively eliminated a finding of actual malice which finding is based on clear and convincing evidence. Much of what is in dispute depends, for its resolution, on the credibility of witnesses. Defendant’s own denial of actual malice is not conclusive in the presence of evidence to the contrary. St. Amant v. Thompson, 390 U. S. 727, 732 (88 SC 1323, 20 LE2d 262, 268) (1968). Not only direct evidence, but circumstantial evidence and reasonable inferences, are for a factfinder’s sifting. Harte-Hanks Communications, supra, as illustrative.

That is outside of our circumscribed function as an appellate court, Guye v. Home Indem. Co., 241 Ga. 213 (244 SE2d 864) (1978), and was so for the trial court. OCGA §§ 24-9-80; 9-11-56. As the Supreme Court reiterated in the Anderson summary judgment case, supra at 255: “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment. . . .”

There is evidence that defendant did not personally check the facts in the letter before sending them out from his home under the weight of his signature, knowing that he was identified as the governor’s administrative aide. He deposed that he reviewed the GBI file, which contained contrary information which at the least could be inferred that defendant “entertained serious doubts as to the truth of his publication,” St. Amant, supra at 731. Nevertheless, he instructed an assistant counsel to compare what was said in the letter only with what was in the law department’s summary memo. Defendant knew from the GBI file, or did not seek to verify otherwise, that the trucking company official’s sentence was for an incident not involving Barber. If he knew this to be true, a jury could infer that its inclusion in the letter about Barber was a deliberate implication that Barber’s guilt, though not established by conviction, was a confirmed fact or at least a foregone conclusion upon which the letter recipients could rely in acting.

In addition, the law department memo itself stated that the official pleaded nolo contendere and was given first offender status; it was not a conviction, not a finding of guilt. Yet the jury could find that the letter-writer’s statement clearly implied that the official was guilty as a matter of law, and that he parlayed this as fact to verify the guilt of plaintiff in the same transaction.

In addition, there is undisputed evidence that defendant knew that plaintiff had not been convicted or even indicted for bribery, yet stated that he was guilty of it. A jury can reasonably infer that he stated his opinion as though it were an official fact, despite the accusation’s not having been proved beyond a reasonable doubt in a court of law. Adding the words “what amounted to” does not detract from the direct statement that Barber accepted a bribe, for it can reasonably be construed to mean only that it was ostensibly given for another purpose. Whether Barber would have been convicted or not is fraught with the imprecision of the application of the bribery law, OCGA § 16-10-2, in “campaign contribution” cases, as illustrated by the recent case of State v. Agan, 259 Ga. 541 (384 SE2d 863) (1989).

The letter also states that the reason Barber resigned was that he chose resignation rather than indictment “and conviction,” as though conviction were a certainty. Defendant had no basis on which to draw such an unqualified conclusion regarding conviction. Also, there is evidence that the reason for resignation was otherwise and that he did not know what motivated Barber to resign. Yet a jury could find that the author of the letter implied that resignation was attributable to an acknowledgment of guilt, despite Barber’s denial to this day of any wrongdoing. This statement, too, was used in the letter to verify the truth of the statement that Barber had accepted a bribe.

The state law department memorandum does not conclusively establish the facts as a matter of law. It contains the results of investigation, made for the purpose of possible prosecution; what it states as facts were never tested in a court of law and many of them remain in dispute in this separate civil case, as is apparent from plaintiff’s evidence. The latter, for one thing, weaves other assertions of fact into the outline to give what plaintiff contends to be a more complete picture.

Among the objective undisputed facts which have a bearing on the issue of actual malice are that defendant had access to the true facts, that this action was taken by defendant in an effort to discredit plaintiff as one who should be returned again to the state’s Public Service Commission, that it was done in the heat of political campaign, that it was directed to local officials to influence them, that it was done with an assessment that it would have an impact on significant numbers of votes, that it was accomplished not as an official act but as a personal communication outside the governor’s office. Disputed was whether defendant knew of the doubts which the GBI and the attorney general and law department had.

The subtlety inherent in ascertaining a person’s state of mind, and the nuances discernible from objective and not only subjective evidence, in this case where plaintiff has come forth with disputing evidence on material facts about what defendant knew and upon what basis he acted, where plaintiff does not rely on the pleadings or only on the proposition that the jury might disbelieve the defendant’s denial of legal malice, see Anderson, supra at 256, required the trial court to deny the motion for summary judgment.

Judgment reversed.

Carley, C. J., Been, P. J., Banke, P. J., and Pope, J., concur. Been, P. J., also concurs specially. McMurray, P. J., Birdsong, Sognier and Benham, JJ., dissent.

Deen, Presiding Judge,

concurring specially.

While concurring fully with the majority opinion, I add the following comments.

“The privilege of poisoning one’s enemy is not a thing of value,” Foster v. State, 8 Ga. App. 119, 123 (68 SE 739) (1910), but it may be a constitutional right, even where the poisoning is verbal, vociferous, and vexatious, and the victim is a public figure. However, notwithstanding the liberties afforded in the course of political zeal and public debate about public figures, poison falsely served with actual malice is still actionable. A factual issue exists over the determinative question of actual malice in the instant case.

“Malice in the constitutional sense is distinguished from the common law sense of ill will, hatred, or ‘charges calculated to injure’ . . . Constitutional malice does not involve the motives of the speaker or publisher, though they may be wrong, but rather it is his awareness of actual or probable falsity, or his reckless disregard for their falsity.” Williams v. Trust Co. of Ga., 140 Ga. App. 49, 55-56 (230 SE2d 45) (1976). (Emphasis supplied.) Our Georgia rule has been amended or modified to the extent that now a mini, modicum, or moderate amount of evidence concerning motive, which specifically bears a relationship to the actual malice inquiry, may be considered. Harte-Hanks Communications v. Connaughton,_U. S._(109 SC 2678, 105 LE2d 562) (57 LW 4846) (1989). In the instant case, it was uncontroverted that Perdue intended to injure Barber’s reputation; it is all apparent from his acts of affirmative action in seeking assistance of the attorney general in formulating part of the letter, and having the governor’s press secretary edit the letter, that he was deleterious, dedicated, and deliberate in designing his attack on Barber’s integrity, impartiality, image, and independence. The head of the special prosecution division stated in his deposition (albeit 16 months after the letter was published) that it would be dangerous to send out this type letter. He explained his use of the word “dangerous” as meaning there was a potential for a lawsuit.

That desire, deliberation, and design to injure, alone, would not suffice to prove libel or slander of a public figure. However, I believe that, considering facts such as the conspicuous juxtaposition of Per-due’s (a) accusation of Barber accepting a bribe with (b) the factually misleading statement that “[t]he trucking company official who gave Mac Barber the money was convicted and fined a total of $12,000.00,” along with (c) Perdue’s statement to Barber regarding Barber’s intention to run for re-election to the Public Service Commission, “We could sure use that seat,” combined with admissions as to his letter being intended to brand Barber as a “crook” and in the “same category as Sam Caldwell,” see Jordan v. Hancock, 91 Ga. App. 467 (86 SE2d 11) (1955) (liar, crook, thief, and cheat); Stone v. McMichen, 186 Ga. App. 510 (367 SE2d 839) (1988) (crook and thief), Perdue misplaced his calculations and confidence in his cleverness and crossed over the line into constitutional malice. Implicit in the juxtaposition noted above is the representation that the trucking official was convicted of bribing Barber, which Perdue knew to be false or would have known absent a reckless disregard for the truth.

The dissent relies on Hustler Magazine v. Falwell, 485 U. S. 46, 53 (108 SC 876, 99 LE2d 41) (1988). Language used in this cited case suggested that Falwell is a public figure, and his first sexual experience was incest with his mother in an outhouse. These expressions, made in a sexual context, are about on par, or possibly stronger and more unsavory, than the letter sent out to some 350 city and county officials, done in a political context, in the instant case. The distinction, difference, and distinguishing discernment in the two being, the former made in a magazine, was labeled a “parody” and was facetious, felicitous, fanciful, and fictional, while the latter letter is sent out as, and in, a staunchly serious sophisticated scenario. While acknowledging that debate on public issues about public figures should not be curtailed or inhibited, the defense by a private citizen or an elected public official, be he legislator, judge, governor, or other public servant, who is called a “crook,” or is labeled guilty of violating our criminal code or of committing a crime, should likewise not be curtailed, chilled, censored, or shortchanged in seeking a jury trial in his challenge in the courts of our state to arrive at truth in the matter where factual matters are in dispute as to actual malice. In this situation, “[i]t would be monstrous to suppose that the arm of the Judiciary of Georgia was too short, or too weak, to reach and relieve. . . .” Rogers v. Atkinson, 1 Ga. 12, 25 (1846). Admittedly, this is a case which depends in large part on how one views the circumstances, but there are enough circumstances here for the jury to be doing the viewing regarding the correct viewpoint or point of view under existing law.

Benham, Judge,

dissenting.

Because I cannot agree with the majority’s holding that appellant has shown by “clear and convincing evidence” that appellee acted with actual malice, I must dissent.

Appellant maintains that appellee had the requisite actual malice because appellee knew the letter was false or recklessly disregarded the true facts. The facts, as memorialized in a ten-page memorandum by the head of the special prosecution division of the State Law Department who summarized the investigative file of the Georgia Bureau of Investigation, are as follows: On August 24, 1984, two trucking officials whose company’s application for a certificate amendment had been denied by a PSC hearing officer, obtained $800 each from their personal checking accounts and went to Barber’s office where each gave him four $100 bills in an envelope bearing the donor’s return address. They then discussed the hearing officer’s decision and the appellate process. Barber filed campaign financial disclosure reports in August and October 1984 that did not reflect the receipt of the $800 from the trucking officials. Four days after the visit to Barber, one of the trucking officials visited another PSC commissioner who refused the official’s offer of money. The commissioner mentioned the attempted bribe at a subsequent meeting of all the PSC commissioners. Ten days after receiving the money, Barber called the official who had contacted the other commissioner and told him to stay away from that commissioner. In November 1984, after Barber visited the Georgia Attorney General and reported he had $1,000 in cash that had been given to him as a campaign contribution, GBI agents and the head of the State Law Department’s special prosecution division visited Barber who told them of the trucking officials’ visit; stated he had no recollection of receiving money from them in 1984 but thought he might have since they had given him money in 1982; and denied that he had talked with anyone about the officials’ PSC case. He later admitted that he had spoken with the trucking firm’s attorney about the case. Barber later gave to the GBI the $800 in cash, in the original envelopes, stating he had no recollection of a 1984 contribution from the trucking officials. On November 29, 1984, Barber filed an amended campaign financial disclosure report that reflected the receipt of $800 from the trucking officials. In February 1985, the Attorney General informed Barber and his attorneys that he intended to present to the Fulton County Grand Jury a proposed indictment charging Barber with bribery, but would forego that action if Barber resigned from his office. Ten days later Barber resigned and the Attorney General agreed to make no presentment to the grand jury concerning the $800 payment by the trucking officials to Barber. The following day, the trucking officials were charged in an indictment with bribery. (While the memo does not make the distinction, other documents in the GBI file on the PSC investigtion reflect that the trucking officials were indicted for attempting to bribe two other members of the PSC, not appellant.) One official pled nolo contendere to one count and was given a one-year sentence, suspended upon the payment of a $10,000 fine and restitution of $2,000. Charges against the other trucking official were dropped. The $800 was returned to the trucking officials.

The following facts are discerned from various depositions given and affidavits executed in this matter. In February 1985, the Attorney General, in the presence of appellee and the head of the special prosecution division, briefed the governor on the investigation and informed him that there was sufficient evidence to present to a grand jury. The Attorney General expressed his desire to give Barber the opportunity to resign in exchange for the Attorney General’s decision not to seek an indictment. Since the Attorney General had presentments prepared, the governor believed that the evidence seemed more than sufficient to seek an indictment. In his affidavit, appellee Perdue swore he heard the Attorney General tell the governor that he considered the case against Barber to be strong and conviction likely, and that the governor concurred that the evidence was more than sufficient to seek an indictment. In a deposition, Perdue recalled the Attorney General saying that the evidence that Barber had taken a bribe was overwhelming. No other attendee of the meeting recalls the Attorney General discussing the likelihood of conviction. Two days after the governor’s meeting with the Attorney General, Perdue talked with Phil Peters, the Director of the GBI, who, according to Perdue, opined that Barber had taken a bribe. According to his affidavit and deposition, Perdue, while preparing the letter now at issue, reviewed the GBI file on Barber, particularly the file summary memo, although he did not read every page contained in the file. He telephonically sought the assistance of the Attorney General on the “technical” aspects of the letter’s second paragraph. In his deposition, the Attorney General confirmed that Perdue had called him, and recalled that Perdue wanted to ensure that he was accurately characterizing what had transpired with Barber. Perdue swore he made the changes suggested by the Attorney General, and gave the letter to the governor’s press secretary in order that she might edit it. In an effort to ensure that the letter “tracked” the GBI file accurately, Perdue asked the press secretary to give the letter to the governor’s assistant legal counsel for his review and opinion. Perdue swore that the press secretary told him that the legal counsel had compared the letter to the GBI file and had opined that it was consistent with the GBI file and the file summary memo. The press secretary testified that she proofread the draft and, at Perdue’s request, gave it to the governor’s assistant legal counsel for review to ensure the letter was consistent with the GBI file. The assistant legal counsel informed her that he had reviewed the letter and found it to be consistent with the file and the file summary memo, which information she relayed to Perdue. The assistant legal counsel executed an affidavit in which he stated that he had reviewed the letter and had concluded that the representations made therein concerning Barber were consistent with the file summary memo and the file.

Concerning the contents of the letter, Perdue acknowledged that he knew when he wrote the letter that Barber had not been charged with bribery. The assistant legal counsel acknowledged that he knew at the time he reviewed the letter that the trucking official had never been charged with bribing Barber. The Attorney General testified that the second sentence of the second paragraph was accurate with the qualification that one is never sure of an indictment or a conviction. After studying the third sentence of the second paragraph, the Attorney General pointed out an inaccuracy in that the trucking official, having pled nolo contendere, had not been convicted. He did agree that it would be “natural and normal” to infer from the letter that the trucking official had been convicted and fined for bribing Barber, which inference was factually incorrect. The assistant legal counsel also acknowledged that a reasonable man could have inferred that the third sentence of the second paragraph referred to a conviction for bribing Barber. The head of the special prosecution division testified that while he thought it was “dangerous” to write a letter saying that Barber had accepted a bribe, such a letter would be accurate. He agreed that the third sentence of the second paragraph could be interpreted as saying that the official gave Barber money and was convicted for that action. Concerning the reference to Sam Caldwell, Perdue testified that he believed both Caldwell and Barber had betrayed the public trust and embarrassed state government. The Attorney General testified that he would not have made a comparison of Barber with Caldwell.

In support of his contention that Perdue acted with actual malice, appellant questions Perdue’s motives in authoring and publishing the letter. Perdue swore that he had no personal malice or animosity for appellant. “[I]n the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment. In Garrison v. Louisiana, 379 U. S. 64 (85 SC 209, 13 LE2d 125) (1964), [the U. S. Supreme Court] held that even when a speaker or writer is motivated by hatred or ill-will his expression was protected by the First Amendment: ‘Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth.’ Id., at 73. Thus, while such a bad motive may be deemed controlling for purposes of tort liability in other areas of the law, we think the First Amendment prohibits such a result in the area of public debate about public figures.” Hustler Magazine v. Falwell, 485 U. S. 46, 53 (108 SC 876, 99 LE2d 41) (1988). “Constitutional malice does not involve the motives of the speaker or publisher, though they may be wrong. ...” Williams v. Trust Co., 140 Ga. App. 49, 56 (230 SE2d 45) (1976).

Appellant also finds actual malice in Perdue’s failure to investigate. “[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.” St. Amant v. Thompson, 390 U. S. 727, 731 (88 SC 1323, 20 LE2d 262) (1968). In both his affidavit and his deposition, Perdue remains constant on the point that he believed the accuracy of the facts as he stated them in the letter, and continues to believe them. While appellee cannot “automatically insure a favorable verdict by testifying that he published with a belief that the statements were true” (St. Amant v. Thompson, supra, at 732), appellant has failed to present clear and convincing evidence of reckless disregard on appellee’s part, i.e., that appellee entertained serious doubts as to the truth of his publication. Id. at 731. “Neither lies nor false communications serve the ends of the First Amendment, and no one suggests their desirability or further proliferation. But to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones.” St. Amant v. Thompson, supra at 732. Without determining whether appellee’s statements were true, I must conclude that inasmuch as appellant failed to prove with clear and convincing evidence that appellee published the material with actual malice, this court should affirm the judgment of the trial court.

In its reliance on inferences based on circumstantial evidence, the majority loses sight of the standard of proof it espoused at the outset of its opinion: actual malice must be proved by clear and convincing evidence. The “objective undisputed facts” which the majority holds out as having a bearing on the issue of malice are not so objective as is asserted. Most of those “objective facts” show only that the evénts giving rise to this action were political in nature. I am not ready to assert that the fact that speech occurs in the context of political activity, that it is intended to discredit a candidate for office to whom the speaker is politically opposed, that the communication is on a private letterhead, and that it was made for the purpose of influencing votes is evidence of actual malice. Such a holding, which is what the majority advances, would seriously inhibit the heretofore uninhibited give- and-take which is inherent in the political process in this country. The majority’s insistence that appellee had access to the “true facts” is inconsistent with its characterization of the matters asserted by appellee as untested in court: the “true facts” relied on by the majority are largely from the same sources relied on by appellee and were no more validated by a court than were the “facts” relied upon by appellee.

The libel laws of this nation, as applied to public figures such as appellant, do not require that the speaker be correct in his assertions, only that such misstatements as may be made are made without actual malice. Appellee put forth undisputed evidence that he did not act with actual malice. The cases cited by the majority require that a plaintiff bear a heavy burden in order to show actual malice on the part of one who takes part in the spirited debate which characterizes this country’s political and governmental processes. Appellant did not bear that burden. A web of inferences, in the face of direct evidence to the contrary, simply does not rise to the level of clear and convincing evidence. The trial court was correct in granting summary judgment to appellee, and I would affirm that judgment.

Decided December 20, 1989

Rehearing denied January 23, 1990

James A. Mackay, Cook & Palmour, Bobby Lee Cook, for appellant.

Chilivis & Grindler, Nickolas P. Chilivis, Gary G. Grindler, Glass, McCullough, Sherrill & Harrold, Robert S. Jones, L. James Weil, Jr., Hull, Towill, Norman & Barrett, David E. Hudson, for appellee.

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


source: Caselaw Access Project

author: Carley, Chief Judge.

license: Public Domain

text:
    A89A1923.
    HORN et al. v. SMITH & MERONEY, P.C. et al.
    (390 SE2d 272)
   Carley, Chief Judge.

When George Horn died in an airplane crash, he was survived by his wife and by appellant-plaintiffs, his parents. His wife secured the legal services of appellee-defendants to bring a wrongful death action. After the wrongful death claim was settled, appellants filed this legal malpractice action against appellees, alleging a deviation from the applicable standard of care in pursuing the wrongful death claim. Appellees answered and subsequently moved for summary judgment. The trial court granted appellees’ motion and appellants appeal.

1. ‘““It is generally held that an attorney-client relationship must be demonstrated before a plaintiff may recover in a legal malpractice suit. . . . This is essential in establishing the element of duty that is necessary to every lawsuit based upon a theory of negligence. . . .” Accordingly, the threshold question in the case sub judice is whether or not there was an attorney-client relationship’ between the appellants and [appellees]. [Cit.]” Moore v. Harris, 188 Ga. App. 251, 252 (372 SE2d 654) (1988).

“The relationship of attorney-client may be expressly created by written contract, or may be inferred from the conduct of the parties. [Cit.] Although ‘(g)enerally, the test of employment is the fee,’ [cits.], the basic question in regard to the formation of the attorney-client relationship is whether it has been sufficiently established that advice or assistance of the attorney is both sought and received in matters pertinent to his profession. [Cit.]” Huddleston v. State, 259 Ga. 45, 46-47 (1) (376 SE2d 683) (1989). In their depositions, appellants acknowledged that they never paid any legal fees to appellees and never sought any legal advice from them. Likewise, appellants never informed appellees that they were relying upon them for legal advice, and they admit that they have always understood that appellees were the legal representatives of their son’s widow. Except for one brief period of time, appellants have been represented by counsel of their own choosing in connection with their legal rights as surviving parents of their deceased son. Thus, “[t]he evidence demanded a finding that no attorney-client relationship existed, ... in the classic sense of the term. [Cit.]” Moore v. Harris, supra at 252-253. It follows that the trial court correctly granted summary judgment in favor of appellees.

Decided January 8, 1990

Rehearing denied January 23, 1990

George Horn, pro se.

Ferrell Horn, pro se.

Arnall, Golden & Gregory, Karen B. Bragman, Jeffery M. Smith, for appellees.

2. Appellants’ remaining enumerations of error have been considered and found to be either moot or without merit.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    77408.
    JOHNSON v. THE STATE.
    (390 SE2d 297)
   McMurray, Presiding Judge.

In Johnson v. State, 190 Ga. App. 117 (378 SE2d 366), we affirmed the judgment of the Superior Court of Fulton County. The Supreme Court of Georgia granted certiorari and in Johnson v. State, 259 Ga. 403 (383 SE2d 118), considered “whether the law as set forth in Baxter v. State, 254 Ga. 538, 548 (331 SE2d 561) (1985) was violated when the trial court refused the appellant’s motion to allow him to see writings that witnesses for the prosecution used to refresh their memories in the courtroom prior to testifying, but not while actually testifying.”

In Division 1 of Johnson v. State, 190 Ga. App. 117, supra, relying on the whole court case of Miller v. State, 189 Ga. App. 587 (1) (376 SE2d 901), this Court held that since the victim-witness did not use the documents to refresh his recollection while he was on the witness stand but rather used the documents to refresh his recollection before testifying, defendant was not entitled to examine the documents used by the victim-witness. This Court additionally held in Division 1, supra, that “[i]nasmuch as the detective and the fingerprint examiner used documents to refresh their recollections as they were testifying, the trial court erred in refusing to grant defendant access to the documents. Baxter v. State, 254 Ga. 538, 548 (18), supra. However, upon viewing the entire record ... we find that, in all likelihood, the refusal to grant access to the documents used by the detective and the fingerprint examiner did not contribute to defendant’s conviction, and therefore, was harmless error. Baxter v. State, 254 Ga. 538, 548, (18) supra.” Johnson v. State, 190 Ga. App. 117 (1), 118, supra.

The Supreme Court of Georgia in Johnson v. State, 259 Ga. 403, 404 (2), 405, supra, held that “[i]n Baxter, supra, we held that a criminal defendant has the right, upon request, to examine documents used by witnesses to refresh their recollection. There has been some difficulty in trying to decide where to draw the line between access and non-access. There is confusion about whether the line should be drawn according to where a particular witness is physically located (i.e., on the witness stand, in the courtroom, etc.) or at some specified time relative to the witness (i.e., at the time the witness is testifying, immediately before the witness testifies, etc.). To resolve this, we will fix the right to examine such documents at the commencement of hearing or trial. Accordingly, if a witness uses documents to refresh memory after the inception of a hearing or trial, then during that hearing or trial, the cross-examiner is entitled to examine such documents. To the extent that Miller u. State, supra, conflicts with the above, it is overruled. The trial judge should have granted the appellant’s motion to examine the documents; however, the error is not reversible. Our review of the evidence convinces us that it is highly probable that the error committed as a result of the denial of the motion did not contribute to the verdict and is, therefore, harmless. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).”

While the Supreme Court of Georgia did not reverse defendant’s conviction in the case sub judice, the Court did “reverse that part of the Court of Appeals’ opinion that limited access to documents used ‘to refresh . . . recollection while ... on the witness stand.’ [Emphasis supplied.] Johnson v. State, 190 Ga. App., supra at p. 117.” Johnson v. State, 259 Ga. 403, 404 (2), 405, supra.

The judgment of the Superior Court of Fulton County, as was previously affirmed by this Court in Johnson v. State, 190 Ga. App. 117, supra, must remain affirmed.

Decided January 23, 1990.

Herbert Shafer, for appellant.

Lewis R. Slaton, District Attorney, William Fincher, Joseph J. Drolet, R. Andrew Weathers, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: Sognier, Judge. Pope, Judge,

text:
    A89A1617.
    AYERS v. THE STATE.
    (390 SE2d 432)
   Sognier, Judge.

James David Ayers was convicted of child molestation, and he filed this appeal.

1. Appellant raised the general grounds in one enumeration of error, but as he failed to support the enumeration with either argument or citation of authority, pursuant to Rule 15 (c) (2) of this court we deem it abandoned. Motes v. State, 189 Ga. App. 430 (1) (375 SE2d 893) (1988).

2. Appellant also contends the trial court erroneously denied his motion for mistrial made after the State adduced testimony that placed his character in issue. The record reveals that both appellant and his mother testified that the molestation victim and her mother, Elmerleen Crisp, moved to Georgia several months before appellant did, and that Crisp’s move was not made at appellant’s request or instigation. On rebuttal the State called Detective Ronald Simons, who testified that when he questioned appellant’s mother during his investigation of the alleged molestation, she told him that “just prior to [appellant] and Elmerleen coming back to Georgia, she received a phone call from [appellant] stating that he would be moving back to Georgia and bringing Elmerleen with him because the authorities [in Nebraska] were trying to take [the victim] away from them on a molestation investigation.”

The State effectively concedes that this testimony did place appellant’s character in evidence, see OCGA § 24-9-20 (b), but asserts that this double hearsay was admissible under OCGA § 24-9-82 to rebut the testimony of appellant and his mother that he did not bring the victim and Crisp back to Georgia with him. OCGA § 24-9-82 authorizes the admission of evidence of specific bad acts to impeach a criminal defendant (regardless of whether the defendant has placed his or her character in issue) by disproving a fact testified to by the defendant. Williams v. State, 257 Ga. 761, 763 (5) (363 SE2d 535) (1988). Pretermitting the question of whether the statute contemplates the use of double hearsay testimony, “a witness may not be impeached because of a discrepancy as to a wholly immaterial matter [cit.],” Thomas v. State, 168 Ga. App. 587 (1) (309 SE2d 881) (1983), and as the question of whether Crisp and her daughter came to Georgia with appellant was wholly immaterial to the issue of appellant’s guilt, Simons’ testimony was not admissible to impeach appellant’s testimony on that point. See id. However, we find no reversible error because the trial judge gave adequate curative instructions, Laney v. State, 159 Ga. App. 609-610 (2) (284 SE2d 114) (1981), and the evidence properly admitted against appellant, which included testimony by the victim that appellant molested her on at least two occasions and Crisp’s testimony that she was present during and acquiesced in the molestation of her daughter by appellant, was overwhelming. See Green v. State, 187 Ga. App. 373, 374 (1) (370 SE2d 348) (1988). Accordingly, we find no abuse of the trial court’s discretion in the denial of appellant’s motion for mistrial. See Norwood v. State, 252 Ga. 292, 294 (313 SE2d 98) (1984).

Decided January 23, 1990.

Gary N. Struletz, William M. Clark, for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, Assistant District Attorney, for appellee.

Judgment affirmed.

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

Pope, Judge,

concurring specially.

I concur in Division 1 and the result but I cannot agree with all that is said in Division 2. The State acknowledged that the testimony incidentally placed the defendant’s character in issue, but argued that the testimony was proper rebuttal pursuant to OCGA § 24-9-82. I cannot agree that the testimony was “wholly immaterial.” The defendant and his mother testified on direct examination that the victim’s mother just appeared “out of the blue” with the victim and began living in the defendant’s mother’s duplex house. The testimony offered by Detective Simons directly rebutted this and established a predisposition toward child molestation. Evidence of this independent crime would have been admissible. Kraus v. State, 169 Ga. App. 54 (1) (311 SE2d 493) (1983).

I am authorized to state that Presiding Judge Banke joins in this special concurrence.


text:
    A89A1932.
    FREEMAN v. THE STATE.
    (390 SE2d 300)
    Decided January 23, 1990.

      A. Nevell Owens, for appellant.

      Lewis R. Slaton, District Attorney, Joseph J. Drolet, Grover W. Hudgins, Assistant District Attorneys, for appellee.
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of possession of cocaine with intent to distribute. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict.

1. The trial court’s denial of appellant’s motion to suppress is enumerated as error.

The trial court was authorized to find the following: An officer stopped appellant’s vehicle. This stop was based upon the officer’s articulable suspicion that appellant was committing a non-moving traffic offense. In violation of OCGA § 40-2-38, the license plate on appellant’s vehicle was not plainly visible and the officer could not determine, without stopping appellant, whether the vehicle was being operated in violation of OCGA § 40-2-8 (b) and (c). During the course of this investigatory stop, the officer observed cocaine in plain view in appellant’s automobile.

On this evidence, the trial court clearly was correct in denying appellant’s motion to suppress. The original stop of the automobile was authorized and the subsequent seizure of contraband which was in the officer’s plain view did not violate appellant’s Fourth Amendment rights. State v. Webb, 193 Ga. App. 2 (1, 2) (386 SE2d 891) (1989).

2. “The jury resolved the conflicting versions of the events against [appellant], and the evidence was sufficient to enable any rational trier of fact to find [him] guilty of [possession of cocaine with intent to distribute] beyond a reasonable doubt. [Cit.]” Evans v. State, 191 Ga. App. 364-365 (1) (381 SE2d 760) (1989).

Judgment affirmed.

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


text:
    A89A2240.
    PIERCE v. FIELDALE CORPORATION.
    (390 SE2d 298)
   Carley, Chief Judge.

Appellant-plaintiff slipped and fell on appellee-defendant’s business premises and brought suit for the injuries he sustained. Appellee answered and subsequently moved for summary judgment. The trial court granted the motion and appellant appeals from this grant of summary judgment in favor of appellee.

Construing the evidence most favorably for appellant, the relevant facts are as follows: Appellee operates a chicken processing plant. Federal law requires appellee to keep the floor of its plant wet while in operation. Consequently, those working in the plant could reasonably expect to get chicken fat and water on their shoes. Appellant is a federal meat inspector employed by the United States Department of Agriculture. For the nine months preceding his fall, appellant was assigned to appellee’s plant and worked there five days a week, eight hours a day. A part of appellant’s duties was to inspect the plant for hazardous or dangerous conditions and to report their existence for appellee’s immediate correction. Appellee is required bylaw to provide a breakroom for the exclusive use of federal meat inspectors such as appellant. It was in this breakroom that appellant slipped and fell. Although new flooring had been installed in this breakroom several weeks before appellant fell, it was of the same quality and grade as the old flooring. Appellee maintained the new flooring in exactly the same manner in which the old flooring had been maintained. Despite his daily use of the breakroom and his knowledge that the floor of the breakroom was “extremely slippery,” appellant never reported that the flooring presented a hazardous or dangerous condition. On the night before his fall, the flooring in the breakroom was maintained in the usual manner. On the day of his fall, appellant was walking across the floor of the breakroom in his usual manner when he slipped.

There is considerable doubt that appellant occupied the status of an invitee on appellee’s business premises rather than that of a mere licensee. See generally London Iron &c. Co. v. Abney, 245 Ga. 759 (267 SE2d 214) (1980). However, assuming without deciding that appellant was an invitee, the trial court nevertheless correctly granted summary judgment in favor of appellee. Under the evidence, appellant had equal knowledge of the wet and greasy conditions to which one was generally exposed on appellee’s premises and equal, if not superior, knowledge of the “extremely slippery” condition of the floor of the breakroom where he fell. “ ‘The basis of the proprietor’s liability is his superior knowledge and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting, in view of his knowledge, assumes the risks and dangers incident to the known condition. (Cits.) It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. (Cits.)’ ” Bunch v. Stanton, 174 Ga. App. 233, 235 (1) (329 SE2d 538) (1985). It is undisputed that, at the time appellant slipped and fell, the condition of the breakroom floor was no different than it was on the numerous previous occasions that he passed over it without reporting to appellee that it constituted a hazardous or dangerous condition. “Construing the evidence most favorably for appellant, [he] had equal knowledge of the condition of the [breakroom] floor, which the undisputed evidence of record showed had not changed from the previous times [he] had passed over it. Accordingly, [appellee was] not liable for [his] injuries and the trial court correctly granted [its] motion for summary judgment.” MacDonald v. Vasselin, 188 Ga. App. 467, 469 (2) (373 SE2d 221) (1988).

Decided January 23, 1990.

Clifford C. Perkins, Jr., for appellant.

Alston & Bird, Jay D. Bennett, Susan B. Deuitt, for appellee.

Judgment affirmed.

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


author: Birdsong, Judge. Deen, Presiding Judge,

text:
    A89A1680.
    STAMEY v. THE STATE.
    (390 SE2d 409)
   Birdsong, Judge.

Ray Harold Stamey was convicted of child molestation and aggravated sodomy, involving his eight-year-old stepdaughter. He enumerates eight alleged errors on appeal. Held:

1. Appellant contends, through new counsel retained after the conviction, that he was denied the effective assistance of counsel at trial. The issue was raised by amended motion for new trial, filed by appellate counsel (c.f., Thompson v. State, 257 Ga. 386 (2) (359 SE2d 664)) and was extensively argued below.

The trial court correctly concluded appellant did not meet the standards set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) for determining this issue. See Baggett v. State, 257 Ga. 735 (363 SE2d 257); Brogdon v. State, 255 Ga. 64, 68 (335 SE2d 383). If there was any clear deficiency in trial counsel’s duty towards appellant (and we do not concede that there was), appellant has nevertheless not shown “a reasonable probability that the result of the proceedings would have been different but for counsel’s unprofessional deficiencies.” Baggett, supra; Brogdon, supra.

(a) Appellant complains specifically of trial counsel’s failure to object to a social worker’s testimony as to the credibility patterns of a pre-adolescent victim of sexual abuse, and particularly to the witness’ statement that based on certain expert criteria, she believed the child was telling the truth. (The admissibility of this evidence is also made the subject of enumeration of error no. 2.) The witness’ statement was offensive to our ruling in State v. Oliver, 188 Ga. App. 47 (372 SE2d 256) and to Smith v. State, 259 Ga. 135 (2) (377 SE2d 158); nevertheless, it was not a significant addition to her main testimony, so as to displace the jury’s minds on the issue and usurp their authority. The witness’ main testimony emphasized the inability of an untruthful pre-adolescent to maintain a consistent version of events told to various persons. Having given these criteria to exhaustion, she then stated that pursuant thereto, she believed the child was telling the truth.

Based upon the witness’ other testimony, the jury could accept or reject her opinion on this matter. If she had stated no standards or criteria for the jury to apply and attempted merely to substitute her opinion for what the jury had no means to measure, and if she had given the jury no means to measure her own opinion, it might be said she “usurped” the jury’s power. But she exhaustively explained the basis for determining the child’s credibility, and the jury was thus well armed to decide it for themselves. Under these circumstances, her own opinion was not “usurping,” but superfluous. The witness gave the jury the foundation upon which to reject her own opinion. As for trial counsel’s failure to object to any illegal testimony, it appears counsel determined instead to cross-examine her on the matter.

In view of the witness’ other testimony, from which the jury was well able to make its own determination as to the child’s credibility, it cannot be said to raise a reasonable probability that but for such error, the verdict would have been different. Baggett, supra; Brogdon, supra. This is particularly so in view of the fact that the record shows the child’s statements were reasonably consistent, thus supporting the verdict found by the jury with or without this social worker’s opinion.

(b) The trial court did not err in ruling in effect that trial counsel’s failure to make any independent investigation of the facts, was not a clear deficiency but for which in reasonable probability the verdict would have been different. Strickland, supra; Baggett, supra. Appellant has failed to show any additional clearly exonerating fact or evidence trial counsel would have discovered, if he had performed a full independent investigation. It is therefore impossible for appellant to show there is a reasonable probability the results of the proceedings would have been different. Baggett, supra.

(c) Trial counsel’s decision not to call as a defense witness the child’s mother, on grounds she might have contradicted some of the child’s testimony that she had told the mother of the molestation incidents, cannot be said to be a deficiency in professional performance, nor in any case is there a reasonable probability that if the mother had been called to testify, the verdict of guilty would not have been found. Brogdon, supra. The record shows that at other proceedings the mother had shown herself to be hostile toward appellant, and had petitioned to divorce him. She had indicated she was resentful and was intimidated by his repeated returns for six months to her home to get his possessions, which her divorce lawyer (appellant’s first counsel) told her he had the right to do, until she had changed the locks, whereupon he had returned and cut her telephone wires.

Her testimony in other proceedings showed she was sympathetic towards the child’s fear of appellant, and removed the child from the home as long as she thought appellant might return to the house. Although she testified at the hearing on motion for new trial that the child did not tell her Stamey had molested her until after he had been arrested, it cannot possibly be said with any assurance that even if the jury had given credence to the mother on this point, the mother would have otherwise testified favorably to appellant, and that counsel was deficient in failing to call her to contradict her child’s testimony. Her testimony at the motion for new trial hearing was set resolutely against Stamey, in general. It cannot be said she would have done appellant more good rather than less, and therefore certainly it cannot be said that even if she had testified favorably to his defense (i.e., by allowing an attack of the child’s credibility on the debated point of whether she told her mother) this would have created “a reasonable probability” the defendant would have been found not guilty. Strickland v. Washington, supra; Baggett, supra.

2. Appellant contends the trial court erred in admitting in evidence copies of sexually oriented magazines (“Forum” and “Gallery”) on grounds they placed his character in issue, in violation of OCGA § 24-9-20 (b), and were not relevant to this case.

Appellant argues the magazines were old (dating from 1981 and before) and were found stored in appellant’s basement; that there is no evidence he had ever shown them to the victim or used them to further his crimes against her; and that moreover they contained no sexual material relating to children or pre-adolescents, so that in fact the material does not tend to prove identity, malice, intent, motive, plan, scheme, course of conduct or bent of mind towards the particular acts and crimes charged against him in this case. See Millwood v. State, 164 Ga. App. 699 (296 SE2d 239).

The evidence objected to was clearly admissible, not merely to show the intent to commit the crimes charged here, but to show his motive generally and his state of mind and lustful disposition. See Felker v. State, 144 Ga. App. 458, 459 (2) (241 SE2d 576). “Possession of such . . . item[s] does have a tendency to show bent of mind toward sexual conduct. [Cits.]” Grant v. State, 160 Ga. App. 837, 839 (287 SE2d 681) (see Vereen v. State, 162 Ga. App. 1 (289 SE2d 766)), particularly where the evidence shows he was in possession of the material when these crimes were committed. Id. p. 839; see Wilcoxen v. State, 162 Ga. App. 800 (1) (292 SE2d 905). It would be illogical to say that such sexually depictive and explicit material has no relevance to the lustful disposition of the defendant in these kinds of cases, or that they say nothing about his state of mind, as to inclination towards and preoccupation with such matters. If there is any question about it, “ ‘[i]t is . . .a well established rule of law that. . . the rules of evidence require that the evidence be admitted and its weight and effect left to the jury.’ ” Brantley v. State, 177 Ga. App. 13, 15 (338 SE2d 694).

The jury was in the position to review this particular sexually depictive material and determine if any of it tended to prove a disposition or bent of mind toward the acts charged here, whether the material involved children or adults. In fact, the State recalled at the hearing on motion for new trial that some of the magazine material did involve children. The parties’ dispute on this factual point shows the futility of any attempt by the appellate court to gauge the content and relevance of this material. We will not substitute our judgment on the matter for that of the jury; but we will presume they were capable of judging its materiality. Therefore, at least as to this kind of sexually depictive evidence, it is not for us to say it was more prejudicial against the defendant’s character than relevant, and that it impermissibly blackened his character while, comparatively, shedding no light upon the question of his guilt. We therefore find no merit in this enumeration.

3. Appellant contends the district attorney committed misconduct in improperly interfering with the relationship between appellant and his counsel of choice, in violation of the Sixth and Fourteenth Amendments, by making statements to appellant’s father concerning appellant’s first counsel, which statements caused appellant to terminate that counsel immediately before trial, and hastily retain the trial counsel. To the factual contrary, the State contends in brief that the criticized statements were made after trial and thus could not have been the cause of first counsel’s termination.

The posture of these arguments and others concerning any alleged improper acts of the district attorney in setting and calling the case, call for determinations of fact; we cannot conclude the trial court erred in finding adversely to appellant unless the evidence had been undisputed in his favor and the finding is clearly erroneous. If the trial court’s finding is supported by evidence, it must stand. See Johnson v. State, 233 Ga. 58 (209 SE2d 629); Megar v. State, 144 Ga. App. 564 (241 SE2d 447). And we find likewise as to any possible finding that any inappropriate conversations between the district attorney and any of appellant’s family did not constitute attorney misconduct sufficient to be the cause of interference with appellant and his first counsel. Johnson, supra; see Shealey v. State, 257 Ga. 437, 438-439 (360 SE2d 266).

4. Appellant contends the trial court erred in admitting certain of appellant’s in-custody statements without first holding a JacksonDenno hearing, and without limiting instructions, and erred in its charge to the jury on the admissibility of such statements.

The complaint as to the failure to conduct a Jackson-Denno hearing is raised for the first time on appeal; generally we do not consider such fresh issues. Hill v. State, 183 Ga. App. 654, 657 (4) (360 SE2d 4). But, if any error was committed in this respect, we must find it was harmless beyond a reasonable doubt under the standards stated in Kirkland v. State, 141 Ga. App. 664 (234 SE2d 133), and see Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) and Cauley v. State, 130 Ga. App. 278, 286-288, 290-293 (203 SE2d 239), for no issue has been made that any of appellant’s statements were coerced. “ ‘Harm as well as error must be shown to authorize a reversal by this court. As was held in Brown v. City of Atlanta, 66 Ga. 71, 76: “When a plaintiff in error brings a case here, he must show error which has hurt him. This court is not an expounder of theoretical law, but it administers practical law, and corrects only such errors as have practically wronged the complaining party.” [Cits.]’ ” Robinson v. State, 229 Ga. 14, 15 (189 SE2d 53).

Appellant concedes that trial court counsel failed to request any limiting instructions upon the admission of any statements, and therefore that the jury was improperly permitted to consider appellant’s statements (presented in rebuttal) as substantive evidence of guilt. This argument lacks the element of a showing of harm, even if the trial court erred in admitting any such statements without a Jackson-Denno hearing. Robinson, supra. Appellant does not contend any statement was coerced by an officer of the law. It would be a practical miscarriage of justice to reverse a conviction upon a theory which presumes that any statements made by appellant were not voluntary, when in fact they are not asserted to have been involuntary. See Robinson, supra.

Appellant would be in much the same position if the trial court had conducted a Jackson-Denno hearing and erroneously admitted the evidence at the threshold, for the jury was still at liberty to exclude it from their consideration if it was not shown to be voluntary. The trial court charged the jury fully on the necessity for a finding of voluntariness, including a warning made by officers as to the absolute right to remain silent, before any statements could be considered.

5. Appellant complains, however, of language in this charge which further advised: “If an incriminatory statement was not freely and voluntarily made, and where made to an officer of the law there was not the prior warning which I have described to you, it would be your duty to disregard the same.” (Emphasis supplied.)

Appellant argues that the use of the word “and” in this language instructs the jury to disregard the statements “only if both elements are . . . lacking.” However, we do not find this construction to be true. The language correctly instructs the jury that if both stated elements were lacking, it must disregard the statements; but it does not imply that the statements must be disregarded “only if ’ both elements were lacking. The court’s entire charge upon the matter is full and correct, and is not logically negated by the language complained of. As a matter of fact, the language complained of was not error and was not prejudicial to the defendant. See Garner v. State, 174 Ga. App. 628, 629 (330 SE2d 750).

Finally, and in any case, the statements that are the subject of this complaint were not such as were elicited by or made to a law enforcement officer in the course of the investigation, but were statements appellant made to his sister in the officer’s presence. There was no element or evidence of coercion by law enforcement officers involved, but only a statement to another which was heard by the officer, and it was entered only in rebuttal. Under these circumstances, we do not find pertinent the objections made concerning the failure to hold a Jackson-Denno hearing, and voluntariness in general.

6. Appellant’s complaints in enumerations 7 and 8 concerning the misquotes in the original certified record of transcript are not well taken. The trial court heard these complaints at the hearing on motion for new trial and determined that an error had been made by a stenographic court reporter in taking down the jury charge. It was the trial court’s power and duty to correct such errors and to ensure the accuracy of the record generally. Reed v. State, 130 Ga. App. 659 (204 SE2d 335). We are without authority to find as fact in this instance that the trial court was mistaken in its recollection, or to dispute its finding of those facts which only it could determine. See Miller v. State, 150 Ga. App. 597 (258 SE2d 279).

Judgment affirmed.

Pope, J., concurs and also concurs specially. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

“When the right point of view is discovered, the problem is more than half solved.” Ellison v. Ga. R. Co., 87 Ga. 691, 706 (13 SE 809) (1891). I cannot agree altogether with the majority opinion’s conclusion that the appellant’s trial counsel was not ineffective, with regard to the admission of the expert’s testimony about the credibility of the child victim. In State v. Oliver, 188 Ga. App. 47, 50 (372 SE2d 256) (1988), this court clearly held that “fijn no circumstance may a witness’ credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth. . . . Credibility of a witness is not beyond the ken of the jurors but, to the contrary, is a matter solely within the province of the jury.” (Emphasis supplied.) In State v. Oliver, essentially this entire court agreed that the prosecutor’s attempt to adduce such evidence warranted a mistrial. The Supreme Court likewise has condemned such evidence. Smith v. State, 259 Ga. 135 (2) (377 SE2d 158) (1989).

Decided January 5, 1990

Rehearing denied January 24, 1990

Edwards & Krontz, Kenneth W. Krontz, Jennifer McLeod, for appellant.

Frank C. Winn, District Attorney, for appellee.

Although it may be ardently and aggressively articulated and advanced that it is only by ignoring the application of the rulings in Oliver and Smith that the majority opinion can conclude that the trial counsel’s failure to object to this evidence did not affect the result of the proceeding, in the instant case, where the evidence is overwhelming, the alleged error (if any) becomes harmless.

Copies of “Ms. Magazine,” “Forum Magazine,” “Gallery Magazine,” the testimony about “Sexology Today,” and the article, “B-6 and Your Sex Life,” were all properly admitted and considered by the jury. See Howell v. State, 172 Ga. App. 805 (324 SE2d 754) (1988b

I am authorized to state that Judge Pope joins in this special concurrence.


author: Sognier, Judge.

text:
    A89A1698.
    ROBINSON et al. v. STUCK.
    (390 SE2d 603)
   Sognier, Judge.

Inez and A. J. Robinson brought suit against Robert G. Stuck, M.D., alleging claims for medical malpractice, negligence, fraud, and breach of contract arising from wrist surgery performed on Mrs. Robinson in 1983. The trial court granted Stuck’s motions to dismiss and for summary judgment, and the Robinsons appeal.

Appellants first filed an action against appellee on February 7, 1985, but dismissed it without prejudice on July 23, 1987. They refiled their suit on January 22, 1988, the second to the last day available for renewal of their action under OCGA § 9-2-61 (a). A Newton County Deputy Sheriff served the summons and complaint in the renewed action at appellee’s office on January 29th, but left it with appellee’s nurse-receptionist, Mary Bailey, who appellee averred was not authorized to accept service on his behalf. Appellants’ counsel testified by affidavit that he telephoned the court clerk’s office and was told that service had been effected. Appellee then filed his answer on February 29,1988, in which he alleged an affirmative defense of insufficient service. In response, four days later appellants’ counsel wrote appellee’s counsel and inquired about the reason for assertion of the defense. Appellee responded by filing a motion for summary judgment on the ground that the statute of limitation had expired because of appellants’ failure to effect personal service upon appellee. Appellants’ counsel testified that upon receiving this motion, he researched the applicable law, obtained a copy of the return of service, talked with the deputy sheriff who had served the pleadings, and on March 24th requested that appellee be personally served. Appellee did receive personal service on March 29, 1988, 67 days after the renewal action was filed. The trial court found that appellants had not been diligent in their efforts to obtain service and accordingly granted summary judgment to appellee.

1. Appellants contend the trial judge abused his discretion by concluding that they did not diligently pursue service because any errors or delays were attributable to errors by the deputy sheriff and the court clerk, not to appellants.

When, as in the case at bar, the statute of limitation expires before service is perfected, the eventual service of process tolls the running of the statute of limitation only if the plaintiff exercised reasonable diligence to perfect service. Varricchio v. Johnson, 188 Ga. App. 144, 145 (372 SE2d 455) (1988). Under such circumstances, if the date of service is more than five days after the filing of the complaint (see OCGA § 9-11-4 (c)), “ ‘whether or not the service relates back is a question for the trial court, which considers the length of the elapsed time and the diligence of the plaintiff.’ [Cit.] ‘(T)he correct test must be whether the plaintiff showed that he acted in a reasonable and diligent manner in attempting to [e]nsure that a proper service was made as quickly as possible.’ [Cit.]” Day v. Burnett, 189 Ga. App. 905, 906 (377 SE2d 734) (1989).

We find the factual setting in the instant case analogous to that in Roberts v. Bienert, 183 Ga. App. 751 (1) (360 SE2d 25) (1987) and Daughtry v. Cohen, 187 Ga. App. 253 (370 SE2d 18) (1988), wherein this court found in each circumstance that the trial court had not abused its discretion by finding a lack of diligence in effecting service. As in Roberts, even if appellants initially were justified in relying on the court clerk’s statement that appellee had been served, their receipt of appellee’s answer “should have put them on notice and inspired them, through counsel, to exercise the greatest possible diligence to ensure proper and timely service.” Id. at 752. Given that appellants had appellee’s correct address and were informed that the apparent agent who had accepted service was not authorized to do so, their assertions that any delay was attributable to court personnel does not explain their 29-day delay in effecting service after appellee filed his answer. Consequently, we find the trial court did not abuse its discretion by determining that appellants did not exercise due diligence so as to toll the statute of limitation. See Daughtry, supra at 254 (2).

Decided January 4, 1990

Rehearing denied January 24, 1990

Terrence L. Croft, for appellants.

Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, Stephen H. Sparwath, for appellee.

2. Our decision in Division 1 renders moot appellants’ remaining enumerations of error.

Judgment affirmed.

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


text:
    A89A1753.
    DAVENPORT v. NANCE.
    (390 SE2d 281)
   Sognier, Judge.

Jim Nance, the seller, brought suit against Duane Davenport, alleging, inter alia, that Davenport defaulted on a promissory note executed in connection with the sale of a business. Summary judgment was entered in favor of Nance, and Davenport appeals, contesting only the award of attorney fees.

Appellant contends the trial court erred by awarding attorney fees because the note contained two different attorney fee provisions that were ambiguous and in conflict with one another, and that the ambiguity could be resolved only by a jury. The first provision stated that “[i]f this note is placed in the hands of an attorney for collection, attorney’s fees of 15% will be added to the principal balance.” The next paragraph included an acceleration clause, and then provided that if “any payment herein provided for shall not be made at maturity, [appellant] further promise [s] to pay all costs of collection and reasonable attorney’s fees.” The trial court found that these provisions were not ambiguous, and awarded appellee attorney fees in the amount of 15 percent of the principal owed on the note.

We agree with appellant that the first provision quoted above is ambiguous because it does not specify the amount on which the 15 percent fee is to be calculated, and the second provision appears to conflict with the first, as “reasonable attorney’s fees” has a specific legal meaning under OCGA § 13-1-11 (a) (2). However, we do not agree with appellant that these provisions must be construed by a jury because we find that the matter can be resolved by application of the rules of contract construction. See Travelers Ins. Co. v. Blakey, 255 Ga. 699 (342 SE2d 308) (1986). Construing the contract against appellee, the drafter of the document, OCGA § 13-2-2 (5), and following the principle that a limited or specific provision will prevail over one that is more broadly inclusive, Auto-Owners Ins. Co. v. Barnes, 188 Ga. App. 439, 441 (1) (373 SE2d 217) (1988), we find that the first provision governs because it provides for a specific calculation of 15 percent. Viewing the language of the note as a whole, OCGA § 13-2-2 (4), we conclude there was an intent to provide for recovery of attorney fees if any portion of the indebtedness was collected by an attorney. As a result, the contract is subject to the statutory rule that “[i]f [a] note . . . provides for attorney’s fees in some specific percent of the principal and interest owing thereon, such provision and obligation shall be valid and enforceable up to but not in excess of 15 percent of the principal and interest owing on said note.” OCGA § 13-1-11 (a) (1). As the parties are presumed to have acted with knowledge of the applicable law, see OCGA § 1-3-6, we hold that the note between appellant and appellee should be read to provide that attorney fees will be awarded in the amount of 15 percent of the principal and interest owed. Accordingly, we vacate the award of attorney fees entered by the trial court and remand with direction to enter judgment in accordance with this opinion.

Decided January 12, 1990

Rehearing denied January 24, 1990

Rawlins & Mobley, David D. Rawlins, for appellant.

Boyce, Thompson & O’Brien, J. Patrick O’Brien, Catherine M. Packwood, for appellee.

Judgment vacated and case remanded with direction.

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


text:
    A89A1896.
    JOHNSON v. CRITTER GETTERS EXTERMINATING COMPANY, INC.
    (390 SE2d 434)
   Sognier, Judge.

Betty Johnson brought suit against Critter Getters Exterminating Company, Inc., alleging negligence in the inspection and treatment of her home for termites. She appeals from the trial court’s entry of a directed verdict in favor of Critter Getters.

The testimony adduced at trial revealed that in either 1980 or 1981, appellant called Rest-A-Pest Exterminating Company, Inc. after she saw termites swarming in her carport. She testified that Rest-A-Pest found infestations of live termites and extensive damage in the crawl space of her home, and agreed to exterminate and to provide yearly inspections thereafter. After Rest-A-Pest was dissolved in 1985, appellee assumed the inspection obligation under appellant’s agreement with Rest-A-Pest. Appellant testified that she paid a $35 annual inspection fee through 1987, and that she was always away at work when appellee performed its inspections but that the service person usually left a notice indicating that the house had been inspected.

When appellee inspected appellant’s house in 1987, the technician informed her that a pipe under the porch was leaking. She called Junior Coker, a remodeling contractor, to repair it, and he found extensive termite damage under her house, which he estimated had occurred within the last five years. In response, Thomas Mize, appellee’s president, and Raymond Davis, a state agriculture inspector, inspected appellant’s house on October 22, 1987, and Davis returned several weeks later for another inspection. Davis testified that he saw significant termite damage but no active infestation, and that he could not determine how long ago the damage had occurred. He also noted several instances of failure to comply with state regulations regarding drilling of brick piers and scraping of termite tunnels, but stated that this noncompliance did not cause the termite damage to appellant’s house. Mize stated that appellee’s records indicate no active infestation or additional damage occurred during the time appellee treated appellant’s home (although he could not determine with certainty from the records whether an inspection was performed in 1986). Appellant found several dead termites on her window sill in fall 1988, but she, Davis, and Coker all testified they saw no live termites at any time after the initial treatment. Appellant also stated that she never entered the crawl space and thus never saw the infestation or damage at any time.

Appellant contends direction of a verdict for appellee was improper because there were remaining jury questions regarding whether she had a written contract with appellee, whether appellee actually inspected the house during the years it was compensated and whether it followed state regulations, whether appellee’s predecessor properly treated the home on the first visit, and whether the damage occurred during the period appellee was paid to inspect the dwelling. We do not agree, as we find each of these issues either was not material or was not in dispute. The dispute as to whether appellant signed the written contract offered into evidence by appellee or had only an oral contract for inspection and treatment was immaterial because appellant’s counsel stated at trial that appellant was pursuing a tort claim, and the duty to inspect would have arisen under either version of the contract. The sufficiency of Rest-A-Pest’s treatment is similarly immaterial because Mize testified that appellee did not assume the liabilities of Rest-A-Pest, but only agreed to begin servicing some of its accounts, and no evidence was presented to controvert this testimony.

The remaining matters appellant raises cannot under any reasonable construction of the evidence lead to an inference of negligence. See Johnson v. Dallas Glass Co., 183 Ga. App. 584 (1) (359 SE2d 448) (1987). Even assuming that appellant’s testimony was sufficient to establish a duty on the part of appellee to inspect appellant’s home annually and to treat any active infestations, no evidence was adduced to show that appellee breached any duty to appellant so as to proximately cause the damage incurred. See Smith v. Morico, 166 Ga. App. 737 (305 SE2d 465) (1983). Appellant acknowledged that she was not present during any of appellee’s annual visits to her home and never went into the crawl space to inspect the conditions for herself, and she presented no witness who testified as to appellee’s inspections or treatment or opined that they were negligently performed. See Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363, 366-367 (203 SE2d 587) (1973). While Davis did testify that certain state regulations had not been complied with at the time appellant’s house was treated, there was no evidence that this was an obligation of appellee, and Davis also stated that this noncompliance did not lead to the damage incurred by appellant. Further, there was no evidence of an active infestation of termites during the period appellee inspected appellant’s house, as no witness saw any termites during that period, Mize stated that the preexisting damage did not worsen during the time of appellee’s service, and Coker’s testimony indicated that the damage he observed could have occurred while Rest-A-Pest was treating appellant’s home.

“ ‘Negligence is not to be presumed, but is a matter for affirmative proof. [Cit.] In the absence of affirmative proof of negligence, we must presume performance of duty and freedom from negligence. [Cit.]. . . .’ [Cit.]” Worth v. Orkin Exterminating Co., 142 Ga. App. 59, 62 (3) (234 SE2d 802) (1977). While questions of negligence are ordinarily for the jury, when a plaintiff “ ‘simply fail(s) to prove his case . . . the direction of a verdict (is) proper[.] . . . The mere existence of conflicts in the evidence does not render the direction of a verdict erroneous if it was demanded, either from proof or from lack of proof on the controlling issue or issues.’ [Cits.]” Smith, supra at 738. Accordingly, we conclude the trial court did not err by directing a verdict in favor of appellee. Id.

Judgment affirmed.

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

Decided January 24, 1990.

Michael R. Jones, for appellant.

Donald M. Gettle, Linda W. Gettle, Patricia L. Gordon, for appellee.


author: Deen, Presiding Judge.

text:
    A90A0214.
    REED v. THE STATE.
    (390 SE2d 436)
   Deen, Presiding Judge.

Dwight Reed appeals from his conviction of aggravated child molestation. The victim was his brother’s nine-year-old stepson.

1. Appellant contends that the evidence was insufficient to support the guilty verdict.

The child reported the molestation to his school counselor after viewing the film “Good Touch, Bad Touch.” The proper authorities were notified by the principal and the child was interviewed by law enforcement officers and social workers. A physician who examined the child testified that his examination revealed a sphincter muscle tone change consistent with anal intercourse. After he was arrested, appellant waived his right to counsel and consented to a polygraph test. When the results revealed that he was being deceptive, he made a partial oral admission of guilt. He was again advised of his Miranda rights and waived them. His statement was reduced to writing, read aloud to him, and he signed it.

The credibility of witnesses is a matter for jury resolution. Redd v. State, 154 Ga. App. 373 (268 SE2d 423) (1980). The evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The trial court held a Jackson v. Denno hearing prior to trial and admitted appellant’s confession into evidence after finding that it was freely and voluntarily given. The officers who took the statement testified as to the conditions under which it was taken. Reed admitted signing the waiver certificate and consent to the polygraph examination, but denied signing the confession. He claims that his signature was a forgery because three letters in his first name were written in cursive and he normally prints his signature. By comparing his acknowledged signatures with the contested one, the evidence was sufficient for the trial court to find enough similarity to conclude that the signature was valid. This issue was resolved against Reed by the trial judge at the Jackson v. Denno hearing and later by the jury. We find no error in the trial court’s finding that the statement was freely and voluntarily given. See Mungin v. State, 183 Ga. App. 290, 291 (358 SE2d 673) (1987).

Decided January 24, 1990.

Bates, Kelehear & Starr, Harlan M. Starr, for appellant.

Jack O. Partain III, District Attorney, David T. Blackburn, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0278.
    WHITE v. THE STATE.
    (390 SE2d 612)
    Decided January 24, 1990.

      Roger E. Douglas, for appellant.

      H. Lamar Cole, District Attorney, Bradfield M. Shealy, Assis

      tant District Attorney, for appellee.
   Deen, Presiding Judge.

Willie Earl White was convicted of child molestation and appeals, asserting the general grounds. Held:

White’s twelve-year-old stepdaughter testified that one day while her mother and younger brother were at the store, White knocked on the bathroom door while she was taking a bath and told her to “hurry up.” She complied, dressed and went to the living room, where White was sitting. He asked her if he could touch her and she said, “No.” He then asked her to “come here”; she got up and stood next to his chair. He then told her to pull down her shorts and panties, and touched her between her legs. The incident came to a halt when the child’s mother and brother were seen returning from the store. White threatened to kill the child and her mother if she reported the touching to her mother. She stated that she was afraid to report it because she knew that he kept a gun in the house. Some time thereafter she reported it to her paternal aunt and grandmother, who notified the authorities. At no time did the child change her story.

The evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The credibility of a witness is solely within the province of the jury. Redd v. State, 154 Ga. App. 373 (268 SE2d 423) (1980).

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0356.
    TOLBERT v. THE STATE.
    (390 SE2d 301)
    Decided January 24, 1990.

      Lynne Y. Borsuk, for appellant.
   Deen, Presiding Judge.

Appellant was charged with armed robbery, kidnapping, and theft by receiving an allegedly stolen taxicab. A Fulton County jury acquitted him on the first two counts but found him guilty of theft by receiving; he was given a sentence of fifteen years in prison. After denial of his motion for new trial, Tolbert received permission to file an out-of-time appeal and enumerates as error the general grounds. Held:

Appellant Tolbert and another person not a party to the instant appeal were indicted for abducting the owner of a 1978 Cádillac which was being used as a taxicab, and taking from him both a small sum of money and the vehicle itself. At the time of his arrest Tolbert was riding in the back seat of the vehicle, which was driven by his co-defendant. When the police were sighted approaching from the rear, the driver sped away. The police gave chase and caught up with the fleeing vehicle when it was wrecked. Both occupants were placed under arrest. The testimony of the cab’s owner/driver established the factum and the modus of the robbery; the testimony of the arresting officers established that when the stolen vehicle was overtaken, appellant and his co-defendant were in possession of it. The taxicab driver testified that although he had not seen the robbers’ faces, he had recognized their voices as those of the defendants at the time of the preliminary hearing. He also testified that a certain green bag, identified as belonging to defendants, had been placed in the vehicle by the robbers; the bag was still in the vehicle when the defendants were arrested.

Our scrutiny of the record of the instant case, and of the trial transcript in particular, reveals no error of law and further reveals that sufficient competent evidence was adduced to authorize the finder of fact to find appellant guilty as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). It is well settled that the appellate court assesses the sufficiency of the evidence and not its weight. Rutledge v. State, 142 Ga. App. 399 (236 SE2d 143) (1977).

Judgment affirmed.

Pope, J., concurs. Beasley, J., concurs in the judgment only.

Lewis R. Slaton, District Attorney, Joyce M. Auerils, Joseph J. Drolet, Rebecca Keel, Assistant District Attorneys, for appellee.


author: Banke, Presiding Judge.

text:
    A89A2146.
    STARNES et al. v. COTTON STATES MUTUAL INSURANCE COMPANY.
    (390 SE2d 419)
   Banke, Presiding Judge.

The appellants, John Christopher Starnes and Linda Starnes Furgerson, sued to recover for injuries allegedly suffered by Mr. Starnes when a vehicle in which he was riding was forced off the road and into a tree by a vehicle insured by the appellee, Cotton States Mutual Insurance Company. Named as defendants in the appellants’ action were William Roy Stallings, who had been driving the vehicle in which Starnes was riding; Horace Brown, Jr., who had been driving the vehicle insured by Cotton States; and Glen Upchurch, who owned the latter vehicle and was the named insured under the Cotton States policy. The appellants contend that Brown qualifies as an “additional insured” under the terms of the Cotton States policy because he was operating the insured vehicle at the time of the incident with the permission of Upchurch, the named insured.

Cotton States undertook Brown’s defense pursuant to a reservation of rights and then filed the present action to obtain a declaratory judgment absolving it of any obligation either to defend Brown or to pay any judgment which might be entered against him in the appellant’s suit, both because he had never elected to be covered under the policy and because neither he nor Upchurch had complied with certain notice requirements contained therein. The trial court granted Cotton States’ motion for summary judgment in the declaratory judgment action, while denying a motion for summary judgment filed by the appellants; and this appeal followed.

The accident occurred on February 21, 1986. Brown testified in his deposition that the Stallings vehicle cut in front of him as he was driving Upchurch’s vehicle, forcing him to stop suddenly to avoid hitting it and thereby causing his young son, who was accompanying him, to strike his head against the windshield, cracking the glass. Brown testified that the Stallings vehicle sped away from the scene following this incident and that he pursued it to get its tag number. However, he maintained that he broke off the pursuit after obtaining the tag number, that he then stopped and telephoned the police to report the incident, and that he did not learn that the Stallings vehicle had been in an accident until later, when the officer who responded to his call obtained the information over her police radio.

Upon returning Upchurch’s vehicle to him, Brown explained what had happened to the windshield, offered to pay for the damage, and advised him that “he probably ought to call his insurance company.” However, Upchurch responded that because the amount of damage was small, he would probably fix it himself rather than risk an increase in his insurance rates. In February of 1987, approximately a year later, Stallings sued Brown seeking to hold him liable for certain injuries which he had allegedly sustained as a result of his collision with the tree. Brown answered the suit pro se and again advised Upchurch to report the matter to his insurance company; however, he stated that he gave Upchurch this advice not because he wished for the insurance company to defend him in the suit but because he was concerned about the possibility “that something might come up against [Upchurch].” That concern proved to be well-founded when, on July 29, 1987, the appellants filed their suit against Upchurch, Brown, and Stallings.

Upon being served in the appellants’ action, Brown and Upchurch immediately visited a Cotton States office to notify the company of the pendency of the litigation. This was the first notice Cotton States had received of the accident. Brown, who is not represented in the declaratory judgment action, acknowledged during his deposition that he had not previously sought and still had no interest in receiving any assistance from Cotton States in defending the claims against him, explaining that as far as he was concerned, any mistake he might have made in connection with his operation of Upchurch’s vehicle was his responsibility and not that of Upchurch or his insurance company. Held'.

1. In Young v. Allstate Ins. Co., 248 Ga. 350 (282 SE2d 115) (1981), the Supreme Court held that an insured’s failure to comply with the notice provisions of a policy of automobile insurance issued pursuant to Georgia’s assigned risk plan (see OCGA § 40-9-100) would not operate to defeat recourse to the policy by a third party, concluding that “[t]he comprehensive scheme for protection of third parties may not be thwarted by defenses which would be available vis-a-vis the insurer and insured.” Id. at 352. Subsequent to that decision, however, the Legislature enacted OCGA § 33-7-15 (Ga. L. 1982, p. 1624), subsection (a) of which specifies that all policies of motor vehicle insurance issued in this state must contain language requiring the insured to notify the insurer as soon as practicable of any summons or process related to coverage under the policy, and subsection (b) of which specifies that a failure by the insured to provide such notice “shall constitute a breach of the insurance contract which, if prejudicial to the insurer, shall relieve the insurer of its obligation to defend its insureds under the policy and of any liability to pay any judgment or other sum on behalf of its insureds.” (Emphasis supplied.)

In Berryhill v. State Farm Fire &c. Co., 174 Ga. App. 97 (329 SE2d 189) (1985), this court held that OCGA § 33-7-15 operated to insulate an insurer from liability on a default judgment obtained against its insured by a third party where the insurer had received no notice of the pendency of the action prior to the entry of the judgment. However, the facts of that case are distinguishable from those of the present case in that Cotton States clearly received prompt and adequate notice of the pendency of the appellant’s action, and there is no suggestion that its ability to defend that action has been prejudiced in any way by the failure of Brown or Upchurch to provide it with prior notice of the accident. We consequently conclude that the holding in Young v. Allstate Ins. Co., supra, is applicable to the present case, with the result that, to the extent of the mandatory liability coverage provided by the policy, Cotton States cannot escape liability on any judgment which might be entered against Brown in the appellants’ action on the ground that it did not receive notice of the accident within the time period specified in the policy.

2. We proceed to the issue of whether Cotton States was entitled to summary judgment on the basis of Brown’s failure to elect coverage under the policy. This court has held that “[w]here a defendant is merely entitled to be an insured or additional insured under the insurance policy, [he] must ‘elect’ for coverage under the policy, usually by forwarding copies of the complaint and summons to the insurer. Hicks v. Continental Ins. Co., 146 Ga. App. 124 (245 SE2d 482) (1978); Ericson v. Hill, 109 Ga. App. 759 (137 SE2d 374) (1964).” Adwater v. Ga. Ins. Co., 170 Ga. App. 29, 31 (316 SE2d 2) (1984). This court has further stated that under Georgia law an additional insured will be presumed to have waived coverage unless he has actively solicited it. See Leventhal v. American Bankers Ins. Co., 159 Ga. App. 104, 108 (283 SE2d 3) (1981); Adwater v. Ga. Ins. Co., supra, 170 Ga. App. at 31. However, this principle appears to have been honored as much in the breach as in the observance. In Leventhal, for example, we held that the “[wjhere an action against an employer as named insured is based on the alleged negligence of an employee also covered by the policy, the presumption that the employee waives coverage unless he actively solicits it will not apply.” And, in State Farm Mut. &c. Ins. Co. v. Herrick, 166 Ga. App. 90, 92 (303 SE2d 304) (1983), we held that “[w]here facts are present supporting an implied election of coverage and lack of prejudice to the insurer, the absence of an express election will not entitle the insurer to judgment as a matter of law.”

It is evident that the purpose of the election-of-coverage requirement is to protect the additional insured in situations where his interests and those of the named insured might conflict. See, e.g., Adwater v. Ga. Ins. Co., supra, (where this court, in holding that the failure of an additional insured to elect coverage under the policy operated to relieve the insurer from liability on a default judgment against the additional insured, noted that the latter’s interests were “disparate and divergent” from those of the named insured, with the result that the additional insured might well have been expected “to rely upon its own insurer’s protection and defense.”) Id. 170 Ga. App. at 31. In the present case, there is no suggestion that any such divergence of interests exits, and we note that a successful defense of Brown in the appellants’ action would also operate as a complete defense to the appellants’ claim against Upchurch. Cf. Leventhal v. American Bankers Ins. Co., supra, 159 Ga. App. at 108. Moreover, it is apparent that Brown, unlike the additional insured in Adwater, supra, has no insurance coverage of his own upon which the appellants could rely for the payment of any judgment which might be entered against him in the action.

Decided January 10, 1990

Rehearing denied January 25, 1990

Word & Flinn, Gerald P. Word, for appellants.

Willis, McKenzie & Long, D. Ray McKenzie, for appellee.

While it is true that Brown has affirmatively renounced any intention to seek coverage under the Cotton States policy, he has evidently taken this position solely because he feels that to rely on Upchurch’s insurance would be to shirk individual responsibility for his own actions. Noble and refreshing though this sentiment may be, we do not believe it can serve as a basis for defeating the rights of an injured third party under the policy. “[C]ompulsory liability insurance is required ‘not only for the benefit of the insured but to ensure compensation for innocent victims of negligent motorists.’ [Cit.]” GEICO v. Dickey, 255 Ga. 661, 662 (340 SE2d 595) (1966). Thus, we conclude that while Brown’s decision not to elect coverage as an additional insured may absolve Cotton States of responsibility to him in connection with the appellants’ claim, it does not insulate the company from liability to the appellants for payment of any judgment which they might obtain against him based on his operation of the insured vehicle; and on this latter issue alone, we hold that the trial court erred in granting Cotton States’ motion for summary judgment and in denying the appellants’ motion for summary judgment. Of course, in reaching this decision we express no opinion whatever on the merits of the appellants’ claims against Brown.

Judgment affirmed in part and reversed in part.

Sognier and Pope, JJ., concur.