text:
    A92A0577.
    BRADDY v. COLLINS PLUMBING & CONSTRUCTION, INC.
    (420 SE2d 806)
   Andrews, Judge.

Braddy appeals the grant of summary judgment to Collins Plumbing & Construction, Inc., in his suit arising from an automobile wreck involving Collins’ employee driving a company truck.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.] A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden of the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

“ ‘Summary judgment should be granted only in those cases where . . . undisputable, plain and palpable facts exist on which reasonable minds could not differ as to the conclusion to be reached.’ [Cit.]” Indian Trail Village v. Smith, 139 Ga. App. 691, 693 (2) (229 SE2d 508) (1976).

Viewed with all inferences and reasonable doubts in favor of Braddy, Eiberger v. West, 247 Ga. 767, 769 (1) (281 SE2d 148) (1981), the evidence presented with the motion for summary judgment by the affidavits of Lamb and Collins showed the following. Lamb was a mechanic for Collins Plumbing & Construction and was working at the time of the accident on a sewage pumping station located at the base of the new Talmadge Bridge in Savannah.

He was paid by the hour and clocked in at 7:00 a.m. At 5:45 a.m., on July 17, 1990, while driving from his home directly to the work site, Lamb was involved in an accident with Braddy several miles from the work site.

He was driving a pickup truck owned by Collins Plumbing & Construction, Inc. at the time of the wreck. Lamb’s affidavit stated, with regard to the use of the pickup, that his employer “as a convenience and benefit to [Lamb], gave me permission to drive the . . . truck to and from home and work without any charge to me which I considered a benefit to me. . . . Had the accident not occurred, I would not have stopped anywhere before reaching my intended destination which is the job site. . . .”

Lamb’s affidavit further stated that at the time of the accident, he was “not on or about the business of my employer, ... I was not doing anything for my employer’s benefit and was not at the time of the accident being paid for my time. ... I had not yet begun my work day.”

Collins’ affidavit stated that Lamb had access to the truck owned by Collins which he used at work during the day. As a “convenience and benefit” to Lamb, he was permitted to drive the truck home and to return the next day. Lamb “did not do any work or thing of benefit for Collins Plumbing in driving the pickup truck to and from his residence. The permission granted . . . was intended entirely and exclusively as a benefit or privilege granted to him without any benefit to Collins Plumbing.” It further stated that, at the time of the wreck, Lamb “was not on or about the business of Collins Plumbing and was not in the scope of any employment for Collins Plumbing.

These affidavits were dated, respectively, June 26 and June 28, 1991.

Thereafter, in August, both Lamb and Collins were deposed.

Lamb testified that there had been no discussion of his use of the truck when he was talking to Collins about a job, but that his supervisor gave him permission to use the truck. It was his custom to leave his home in Port Wentworth around 5:45 a.m., allowing him to arrive at the job site about 6:15 a.m. Upon his arrival at the job site, he would unlock the gate, check all the equipment, and make sure everything was ready for the work day. He did this so that his helpers could get moving on the job earlier. The other employees usually arrive between 6:30 a.m. and 6:45 a.m. although no one was on the clock until 7:00 a.m.

The pickup truck he drove was equipped with an overhead rack and side bins with three compartments on each side of the truck. The truck also had a two-way radio. The radio was used during the work day for communication with the job site. As described by Lamb, “[i]f I had to leave one job and go to another job to pick up something, maybe they had forgot to tell me to pick this up and they’d radio. . . .”

He had used the radio on one occasion while on his way to work to call his superintendent when the truck ran out of gas. The superintendent brought him gas in response to the call.

If he had not had the use of the truck, he would have gone to the Collins’ shop first every morning to pick up the truck before going to the job sites.

Collins deposed that Lamb had permission to use the truck although Collins recalled no discussion of the use of a company truck when he interviewed Lamb for employment. Collins considered the use of the truck a “benefit that’s attractive” when trying to find employees. A second employee occupying the same relative position as Lamb also had use of a company truck. The racks and bins in Lamb’s truck were used to store parts for the jobs as well as tools, both Lamb’s and those of other workers. Collins was aware that Lamb was usually the first worker on the job and if he had begun work before 7:00 a.m., it would have been with Collins’ permission.

“The general rule of respondeat superior follows: When a servant causes an injury to another, the test to determine if the master is liable is whether or not the servant was at the time of the injury acting within the scope of his employment and on the business of the master. [Cits.] ‘Where a vehicle is involved in a collision, and it is shown that the automobile is owned by a person, and that the operator of the vehicle is in the employment of that person, a presumption arises that the employee was in the scope of his employment at the time of the collision, and the burden is then on the defendant employer to show otherwise.’ [Cits.] This must be done by clear, positive and uncontradicted evidence. [Cit.] ” (Emphasis supplied.) Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 777 (257 SE2d 186) (1979).

“[E]ven positive and uncontradicted testimony by the employer and the employee that the employee’s activities were not within the scope of his employment does not overcome as a matter of law the presumption if plaintiff had any other evidence (that is other than the fact that the vehicle belongs to the driver’s employer) from which a jury could legitimately infer that the employee was acting within the scope of his employment. [F. E. Fortenberry & Sons, Inc. v. Malmberg, 97 Ga. App. 162, 165 (102 SE2d 667) (1958)].” Allen Kane’s Major Dodge, supra at 778.

“[Circumstantial evidence which could be taken as inconsistent with the direct, positive testimony [denying the act was within the scope of employment] is sufficient to get the case to a jury [as will inconsistent direct evidence].” (Emphasis deleted.) Id. at 781.

Decided July 9, 1992.

McCorkle, Pedigo & Johnson, Carl S. Pedigo, Jr., David H. Johnson, for appellant.

Hunter, Maclean, Exley & Dunn, Arnold C. Young, Darrin L. McCullough, for appellee.

There is insufficient evidence of either a direct or circumstantial nature to show facts other than the ownership of the vehicle which would indicate his taking the truck to and from his home was for the benefit of his employer.

Under this state of facts, grant of summary judgment to Collins was appropriate. Allen v. Milton Martin Enterprises, 197 Ga. App. 119, 120 (397 SE2d 586) (1990); West Point Pepperell v. Knowles, 132 Ga. App. 253, 256 (1 a) (208 SE2d 17) (1974). Cf. Coffee Chrysler-Plymouth-Dodge v. Nasworthy, 198 Ga. App. 757 (403 SE2d 453) (1991); Reese v. Ga. Power Co., 191 Ga. App. 125, 128 (3) (381 SE2d 110) (1989); Fred A. York, Inc. v. Moss, 176 Ga. App. 350 (335 SE2d 618) (1985).

Judgment affirmed.

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


source: Caselaw Access Project

author: Sognier, Chief Judge.

license: Public Domain

text:
    A92A1759.
    CA-SHAR, INC. v. McKESSON CORPORATION.
    (420 SE2d 810)
   Sognier, Chief Judge.

On May 11, 1992, Ca-Shar, Inc. filed this direct appeal from the trial court’s order of April 10, 1992 granting summary judgment in favor of McKesson Corporation “in the amount of $9,719.93 plus interest after judgment at the legal rate.” See OCGA § 7-4-12 (interest on judgment to be calculated at 12 percent per year).

McKesson Corporation has moved to dismiss this appeal based upon the fact that the judgment herein is less than $10,000. OCGA § 5- 6-35 (a) (6) was amended effective July 1, 1991 to provide that “[a]ppeals in all actions for damages in which the judgment is $10,000.00 or “less” shall be by application as set forth in OCGA § 5-6- 35 (b). Ga. Laws 1991, p. 412, § 1. “Although the grant of a motion for summary judgment is in general directly appealable, where the amount of the judgment is [$10,000] or less, an application for discretionary appeal is required. [Cit.]” Lightwerk Studios v. Door Units of Ga., 184 Ga. App. 148, 149 (361 SE2d 32) (1987). We note that CaShar’s previously filed application for discretionary appeal to this court was denied.

Decided July 9, 1992.

William L. Reilly, for appellant.

Harmon, Smith, Bridges & Wilbanks, Marian B. Wilbanks, Kutak, Rock & Campbell, Thomas R. Todd, Jr., Morgan & Gottleib, Deborah L. Morgan, for appellee.

Accordingly, the entry of summary judgment in favor of McKesson Corporation provides no basis for a direct appeal in this case, and McKesson Corporation’s meritorious motion to dismiss is granted.

Appeal dismissed.

McMurray, P. J., and Cooper, J., concur.


author: Beasley, Judge. Birdsong, Presiding Judge,

text:
    A92A0494.
    BRANNEN v. PRINCE et al.
    (421 SE2d 76)
   Beasley, Judge.

Caroline Louise Brannen, represented by her husband as next friend and legal guardian, filed suit against Alan D. Prince, M. D. and Marietta Neurological Associates, P. C. for negligence and medical malpractice. She appeals after denial of her motion for new trial which followed a verdict and judgment for defendants.

Evidence presented to the jury showed that on January 3, 1983, a hysterectomy was performed on Mrs. Brannen, she was discharged from the hospital on January 12, and while at home on January 16 she suffered from severe headaches and lost vision in her left eye. Mrs. Brannen was taken to the emergency room at Paulding Memorial Hospital and transferred to Kennestone Hospital, where she was examined by Dr. Prince. He diagnosed Mrs. Brannen as having a vascular insufficiency in the form of an arterial occlusion and prescribed the drug Heparin, a blood thinning agent. On January 19, Mrs. Brannen sustained permanent massive brain damage from an intracerebral hemorrhage caused by the rupturing and bleeding of an aneurysm in her brain, which had not been diagnosed by Dr. Prince. She has since lost control of all bodily functions and is confined to a medically supervised nursing home. Mrs. Brannen’s expert witness in the field of neurology testified that Dr. Prince failed to exercise the applicable standard of care and skill in treating her after she was hospitalized, specifically in not having a CT scan and an angiogram done before administering the Heparin, thereby causing her injuries and damages.

1. Mrs. Brannen protests the refusal of the trial court to allow her to introduce in evidence, after redirect, a two-page letter from her expert witness to her attorney. Her list of documentary evidence in the pre-trial order, to which the trial court adhered throughout the trial, did not include the report. The letter had been obtained by defendants after the court granted a motion to compel production of documents. Defendants used a blown-up copy of it, which was displayed to the whole court and which contained the witness’ medical opinion, to impeach his testimony during cross-examination.

In Seaboard Coastline R. Co. v. Duncan, 123 Ga. App. 479, 480 (1) (181 SE2d 535) (1971), defense counsel cross-examined the plaintiff on the content of portions of a- pre-trial statement made to the defendant’s agent. On redirect the plaintiff was allowed over objection to relate the content of other parts of her statement to the agent, which this court found to be erroneous, stating: “The content of the statement brought out on cross examination was a matter that was admitted only for the purpose of affecting the credibility of the testimony of the witness. It cannot be said that it was admitted in evidence as substantive proof of the facts contained in the statement. Thus it was error for the court to allow plaintiff on redirect examination to relate other portions of her pre-trial statement to the claim agent, as [present OCGA § 24-3-38] is not applicable.” See also Legare v. State, 243 Ga. 744 (20) (257 SE2d 247) (1979), cert. den. 444 U. S. 984. Consequently, we cannot say that the trial court’s refusal to admit the entire report constituted reversible error. Nor, since plaintiff’s counsel was expressly invited to question the witness about it on redirect, can it be said that she was harmed.

2. Plaintiff contends that the court erred in failing to require defendants’ expert witness to respond to a question indicating that he would not have treated Mrs. Brannen as Dr. Prince did. Eliciting what course this doctor personally would have followed was not a proper means to impeach his testimony as to the general standard of care required of Dr. Prince.

“The law of this state requires the courts of this state to presume that a physician exercises his skills in the medical and surgical field in a skillful manner. [Cit.] The burden is on the one who denies it to show a lack of due care, skill, and diligence. [Cits.] In such a case the proof ordinarily required to overcome such presumption of care, skill, and diligence is that given by physicians or surgeons as expert witnesses ([cit.]), and this standard should be that exercised by the medical community generally, not what a particular doctor would do in the circumstances. [Cit.]” Slack v. Moorhead, 152 Ga. App. 68, 71 (262 SE2d 186) (1979). “Testimony showing a mere difference in views between surgeons as to operating techniques, or as to medical judgment exercised, is insufficient to support an action for malpractice where it is shown that the procedure preferred by each, or the judgment exercised, is an acceptable and customary method. . . .” Hayes v. Brown, 108 Ga. App. 360, 361 (2) (133 SE2d 102) (1963). See also Laughridge v. Moss, 163 Ga. App. 427 (3) (294 SE2d 672) (1982).

Defendants’ witness testified that in his opinion Dr. Prince acted within that degree of medical care and skill ordinarily exercised by physicians generally with respect to his care and treatment of Mrs. Brannen. Any testimony elicited on cross-examination that the witness would not have administered Heparin to her would have been immaterial and irrelevant because not impeaching.

3. Plaintiff asserts that the trial judge to whom the case was assigned should have been disqualified because his former law partner had represented the defendant Marietta Neurological Associates when it was incorporated and because one of its founding doctors was a fraternity brother and long-time friend of the judge. The motion to recuse was considered by another judge who concluded that no reasonable basis existed for finding that an appearance of impropriety had been created or that the trial court’s impartiality might reasonably be questioned pursuant to Canon 3 (C) (1).

Appellant concedes that she does not contend the judge was “disqualified pursuant to the strict legal requirements of OCGA § 15-1-8,” but founds her arguments on Canons 2 and 3 (C) (1) of the Code of Judicial Conduct. The circumstances in which a judge may be disqualified are set out in the statute. “These grounds are exhaustive, and bias or prejudice on the part of the judge is not legal ground for disqualification. [Cits.]” Stevenson v. Stevenson, 222 Ga. 47, 50 (3) (148 SE2d 388) (1966). “ ‘Prejudice, bias or prejudgment or even an exhibition of partisan feeling, when not arising from (the statutory) grounds, is ordinarily not assignable as a ground of disqualification.’ [Cits.]” Moon v. State, 154 Ga. App. 312, 314 (4) (268 SE2d 366) (1980). Denial of the motion did not constitute legal error. This is not to say that Canon 2 or Canon 3 (C) (1) was violated, but rather that we do not address their application because they are not the legal test.

4. The next question is whether the court erroneously allowed appellant’s expert witness to be cross-examined regarding an article in a medical periodical which he had not read, because the questions and defense counsel’s reading from the article amounted to prejudicial hearsay testimony. She contends that this article was not a standard treatise on the area of the witness’ expertise.

The witness was a neurologist and distinguished his practice from that of a neurosurgeon, saying that a neurosurgeon operates but a neurologist does not. (Vol. 1, T. 6) “[A]n expert witness may be cross-examined by reference to a standard treatise in the field of the expert’s special knowledge to test his credibility . . . ,” but not until it has been shown to be “a reputable, standard treatise on the subject. . . .” State Hwy. Dept. v. Willis, 106 Ga. App. 821, 824 (3) (128 SE2d 351) (1962). See Carreker v. Harper, 196 Ga. App. 658, 659 (2) (396 SE2d 587) (1990). The Willis case references CJS and Green, Ga. Law of Evidence rather than any case authority, although the much earlier Supreme Court case of Boswell v. State, 114 Ga. 40, 43 (3) (39 SE 897) (1901), dealt with the related subject of “medical books” as the basis for the expert witness’ opinion. Boswell cited earlier cases for the evidentiary rules that “books of science and art” are inadmissible to prove the opinions of the experts as expressed in the books but that these opinions were in effect admissible when adopted as his own by the testifying expert. CJS speaks of cross-examination on the expert’s knowledge of “authoritative opinions” and “the authorities” and “standard treatises.” Green speaks of cross-examination on “standard treatises.”

Such cross-examination, which aims at impeachment of the expert’s opinion, as here, or, as CJS puts it, “to test the knowledge and reading and accuracy of the witness,” pits what is in the treatise against the expert’s analysis of the particular case. Of course, “[b]ooks of science and art are not admissible in evidence to prove the opinions of experts therein expressed.” Boswell v. State, supra at 43 (3); Dean v. State, 250 Ga. 77, 82 (4) (295 SE2d 306) (1982). See also Flemister v. Central Ga. Power Co., 140 Ga. 511, 515 (5) (79 SE 148) (1913); Austin v. Kaufman, 203 Ga. App. 704 (417 SE2d 660) (1992). CJS speaks of this improper purpose as being “in order to get [the books’] contents and the opinions of their authors before the jury.” That would be inadmissible because hearsay.

“A party can prove by cross-examination of an opposing party’s expert that a treatise is standard on the subject. [Cits.]” Pound v. Medney, 176 Ga. App. 756, 762 (4) (337 SE2d 772). The appellant’s expert, a neurologist, was asked if he was familiar with a journal called Neurosurgery, to which he replied affirmatively. He agreed with the cross-examiner that the periodical was “commonly read and referred to by members of the neurosurgical profession or the medical profession with interest in this area,” and was “a useful reference and text” to which he was “not a stranger.”

He was not familiar with the particular article upon which defense counsel sought to question him. It was a report of a controlled study of a particular course of treatment of aneurysm patients. His testimony was sufficient to demonstrate that the journal sought to be used was authoritative and therefore a proper subject for his cross-examination. What he said was not qualitatively different from the foundation laid in Pound, supra, where the expert agreed that the Journal of the American Medical Association was a learned treatise and authoritative “in most things.” Compare also the foundation, deemed sufficient, which was laid in Mize v. State, 240 Ga. 197, 198 (4) (240 SE2d 11) (1977). Although he was not familiar with the particular article which was the subject of cross-examination, “ [i]t was not necessary for [him] to have qualified as authoritative the specific article referred to, since he did not limit his assessment to this selective scope.” Pound, supra at 762.

Although the witness disagreed with the opinion of the article’s authors as related by the cross-examiner and stated that the authors’ course of treatment as related by the cross-examiner was foreign to him and was not done routinely by local neurosurgeons, this did not render the cross-examination improper or destroy the foundation for it.

The admission of evidence is a matter resting largely in the sound discretion of the trial court. Santone v. State, 187 Ga. App. 789, 792 (3) (371 SE2d 428) (1988). The appellate court will not interfere in the absence of abuse. MacNerland v. Johnson, 137 Ga. App. 541, 542 (1) (224 SE2d 431) (1976). Keeping in mind that by law “[t]he right of a thorough and sifting cross-examination shall belong to every party as to the witnesses called against him,” OCGA § 24-9-64, we conclude that the court did not abuse its discretion in deeming the foundation to have been properly laid and in permitting the testing of the witness’ expertise in the manner undertaken.

5. Defense counsel asked the defendants’ expert witness some preliminary questions concerning his family background, age, occupation, marital status, community service and other outside activities. One question asked whether he had participated in a particular religious program and to describe it. Plaintiff objected on the ground that it did not relate to the witness’ qualifications as an expert. The objection was overruled and the witness briefly identified the program and said he had attended. This testimony was not prejudicial to the plaintiff, as she urges. OCGA § 24-2-2 precludes the admission only of character and conduct of parties to the suit, not non-party witnesses. This question served only to help introduce the witness to the jury and to contribute to establishment of his credibility; it presents no basis for reversing the jury’s verdict.

6. Appellant enumerates as error the giving of two of appellees’ charges on the ground that taken together they were cumulative and unduly advanced and placed the court’s approval upon the defendants’ theory of the case. The court first charged that “physicians are under the duty to exercise only such reasonable care in looking after and protecting a patient that the patient’s condition, which is known by the physician, may require. Accordingly, no physician is required to guard against or take measures to prevent that which a reasonable physician under similar circumstances would not see or anticipate as likely to happen.” This correctly instructed the jury on the foreseeability standard applicable to medical malpractice cases. See Willis v. Emory Univ., 94 Ga. App. 734 (1) (96 SE2d 220) (1956).

The other charge was taken from Haynes v. Hoffman, 164 Ga. App. 236, 238 (3) (296 SE2d 216) (1982). It has been approved as a suitable instruction on the distinction between foresight and hindsight, the former of which is the basis for a negligence claim. See Holbrook v. Fokes, 195 Ga. App. 418 (393 SE2d 718) (1990), and cases cited. In McCoy v. Alvista Care Home, 194 Ga. App. 599 (391 SE2d 419) (1990), upon which the appellant relies, it was disapproved because the defendant did not claim lack of knowledge of the patient’s condition but only that the care given the patient was proper under the circumstances.

Dr. Prince did not have access to all the pertinent medical background of the plaintiff, including her apparent sensitivity to Heparin, at the time he treated her. Had he known she had an aneurysm, he might, in hindsight, have treated her differently. The charge was neither inappropriate nor cumulative.

7. The appellant also objected to the giving of the appellees’ requested charge “that the law does not require that treatment given by a physician to a patient shall obtain nearly perfect, or perfect, results. The physician is not responsible in damages for a lack of success unless it is shown from the evidence that the doctor did not exercise the degree of care and skill ordinarily employed by the medical profession generally, under similar conditions and like surrounding circumstances.” She argues that it was not adjusted to the evidence because character and honesty were not in issue; it was a negative statement of the standard of care; it invaded the province of the jury; it so tainted the entire charge that the jury was hopelessly prejudiced against her case; and it suggested that dishonest or fraudulent conduct on the part of a physician is necessary to prove medical negligence. Inasmuch as the same instruction was upheld against similar protests in Hopper v. McCord, 115 Ga. App. 10 (2) (153 SE2d 646) (1967), it is not susceptible to the objections made. Moreover, stating the negative often increases understanding of the positive.

8. Finally, the appellant enumerates as error the giving of the appellees’ requested charge “that physicians do not guarantee the results of treatment or operation, and that in the absence of negligence on the part of the physicians, proof simply that an operation or treatment is different in its outcome from that expected or is followed by disastrous results instead of beneficial results neither establishes nor supports an inference of lack of proper care, skill or diligence on the part of the physicians.” It is challenged as confusing and containing a lesser standard of care than that required by law, and as being prejudicial and argumentative because it states what negligence is not. The cases cited by the appellant are inapposite, whereas in Hill v. Hosp. Auth., 137 Ga. App. 633, 639 (4) (224 SE2d 739) (1976), the identical instruction as to a defendant hospital was approved. The court characterized it as being “in accord with the general principles of negligence law that the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence. [Cits.]”

The court did not err in giving the charge.

Judgment affirmed.

Andrews, J., concurs. Birdsong, P. J., concurs specially.

Birdsong, Presiding Judge,

concurring specially.

I concur fully in Divisions 1, 2, 3, 5, 6, 7, and 8, and in the result reached by my colleagues as to Division 4. However, for the following independent reasons, I conclude that error was not committed when the trial court allowed the cross-examination of appellant’s expert neurologist, regarding a medical article found in the Neurosurgery medical journal.

1. As a general rule, “[u]nder Georgia law, an expert witness can be cross-examined by reference to a standard treatise in the field of the expert’s special knowledge, if the treatise has been proven to be a standard treatise on the subject, as was held in Mize v. State[, 240 Ga. 197, 198 (4) (240 SE2d 11)]. Also, the cross-examiner can establish the authoritative status of material used on cross-examination through the cross-examination of the witness, as was the case in Pound v. Medneyl 176 Ga. App. 756, 762 (4) (337 SE2d 772)]. [And w]hen establishing the authoritativeness of a text through the witness being cross-examined, the witness does not have to use the words ‘standard’ or ‘authoritative.’ ” (Emphasis supplied.) (Agnor’s Ga. Evidence, Opinion Evidence and Experts, § 9-6 (1991 Supp.)); otherwise the adverse expert witness could frequently thwart the use of the document in his cross-examination merely by refusing to so label it.

The foundation requirement for the use of a treatise in cross-examination is to establish the value of the particular document as a source of professional authority and, of course, a “standard” treatise is presumed to be authoritative or it could not achieve recognition as a “standard” source within its field. Moreover, notwithstanding Pound v. Medney, 176 Ga. App. 756 (337 SE2d 772), I believe that every article or theory contained within a recognized “standard” or “authoritative” treatise need not be individually authenticated, whether the expert limits his assessment to the selective scope of the one article or not, it being sufficient that the particular article or theory has been accepted for publication and professional dissemination under the imprimatur of the “standard” or “authoritative” treatise in which it appears.

It is well-recognized that the admission of evidence is a matter which rests largely within the sound discretion of the trial court. See generally Gully v. Glover, 190 Ga. App. 238 (4) (378 SE2d 411); Gene Thompson Lumber Co. v. Davis Parmer Lumber Co., 189 Ga. App. 573, 575 (2) (377 SE2d 15). Of necessity, a trial court must be vested with discretion to determine whether a particular treatise has adequately been established as “authoritative,” to enable its use for purposes of cross-examination of the opposing party’s expert witness. Therefore, the correct standard of review in this case is whether the trial court abused his discretion in allowing the cross-examination of appellant’s expert regarding the article found in the medical publication concerned. See Ruffin v. State, 243 Ga. 95, 104 (16) (252 SE2d 472), cert. den. 444 U. S. 995 (100 SC 530, 62 LE2d 425). In my view, the trial court did not abuse its discretion.

I agree with my colleagues that “ ‘[a] party can prove by cross-examination of an opposing party’s expert that a treatise is standard [or authoritative] on the subject.’ ” Pound v. Medney, supra; Agnor, supra. Appellant’s expert is a board certified neurologist who testified in “layman’s terms” that neurology “is the diagnosis and treatment of diseases of the nervous system meaning the brain, the nerves coming from the brain, the spinal cord, nerves coming from the spinal cord, the muscles and associated trauma to the area,” and that the only “difference between a neurologist and a neurosurgeon is that a neurosurgeon operates while a neurologist doesn’t.” Thereafter, the expert admitted in cross-examination that he was familiar with the journal called Neurosurgery, that it was commonly read and referred to by members of the neurosurgical profession or the medical profession with interest in the area, as a useful reference and text, that he was not a stranger to this periodical himself, although he was not familiar with the particular article in question; and that before being published, articles which appear in the journal are submitted to peer review before one or two reviewers “who will look at it on its own merit as to whether it was done as a qualified or well-done study” (Emphasis supplied.)

It is the duty of an appellaté court to construe the evidence in support of the verdict and judgment (Department of Transp. v. Hillside Motors, 192 Ga. App. 637, 639 (2) (385 SE2d 746)), and this includes our obligation to draw those reasonable inferences from the competent testimony of record that either directly or indirectly supports the verdict and judgment rendered. When the testimony of the expert is viewed in this light, it is beyond cavil that, although the words “standard” or “authoritative” do not appear in the expert’s description of the journal, his testimony unequivocally establishes the journal as an “authoritative” medical source. In this regard, it may reasonably be inferred that the journal is both an “authoritative” and “standard” medical treatise because it is “commonly read and referred to” by members of the neurosurgical profession or the medical profession with interest in this area,” and these professionals consider it “a useful reference and text.” Clearly, it would not be commonly read and certainly it would not be commonly referred to by such experts unless it was authoritative. Further, unless it was considered authoritative, it could not be deemed “a useful reference” and certainly not a useful “text” by such professionals and the expert witness himself. “Text” as the word is commonly used by the expert in his testimony unequivocally means a “textbook.” See definition of “text” in Webster’s Encyclopedic Unabridged Dictionary of the English Language (1989 ed.). And, a “textbook” in its common meaning is “a book used by students as a standard work for a particular branch of study.” (Emphasis supplied.) Webster’s, supra; compare Black’s Law Dictionary (5th ed.) definition of “textbook.” The primary common definition of “treatise” is “a book or writing that treats some particular subject.” Webster’s, supra. Also, a “treatise” is defined as “a formal and systematic exposition in writing of the principles of a subject, generally longer and more detailed than an essay.” Id. When the expert’s words are attributed their normal and common meaning, his testimony not only establishes this medical journal was authoritative, but that it was a standard medical treatise as well, being a useful “text.”

Moreover, the use of the information contained in the article for purpose of cross-examination was not improper or prejudicial per se. Appellees were entitled to subject appellant’s expert witness to a thorough and sifting cross-examination. OCGA § 24-9-64. And the detailed cross-examination of appellant’s expert over the theory contained within this article served the legitimate purpose of testing the scope of the expert’s knowledge in his field, particular in regard to the administration of Heparin to aneurysm patients after ruptures to enhance patient recovery. “It is a cardinal rule of evidence that if evidence is duly admissible under any legitimate theory, it should be admitted even though it does not qualify for admission under one or more other evidentiary theories.” Boatright v. State, 192 Ga. App. 112, 116 (6) (385 SE2d 298) and cases cited therein. That is, “[e]vidence admissible in one capacity is not inadmissible because it does not satisfy the rules for admissibility in another capacity.” Stuckey Diamonds v. Jones, 195 Ga. App. 351, 352 (393 SE2d 706). Therefore, the trial judge did not abuse his discretion in allowing the cross-examination of the expert regarding the article found in this medical journal.

2. Secondly, “[t]he object of all legal investigation is the discovery of truth. The rules of evidence are framed with a view to this prominent end, seeking always for pure sources and the highest evidence.” OCGA § 24-1-2. In the case at bar, the expert witness admitted in open court that he was personally familiar with the medical journal in question and, in addition, that it was commonly read and referred to by professionals, as above discussed.

The existing law, regarding the cross-examination of expert witnesses concerning professional writings, should be expanded in the interests of fundamental fairness. In my view, the rules should be immediately modified to authorize expressly the cross-examination of an expert regarding any relevant article found within a particular medical journal or writing with which the expert claims to be or is otherwise shown to be personally familiar. Such cross-examination is a probative means of testing the scope of the expert’s medical knowledge and expertise in the professional area at issue to aifect the expert’s credibility and the weight to be given his testimony by the factfinder; however, under this proposed rule, the contents of the article would not be admissible as substantive proof of the facts therein contained.

The personal familiarity referred to in the proposed rule need not be a familiarity with the particular article, but only with the journal or writing in which the relevant article appears. This is because the mere fact that an expert is unfamiliar with a relevant medical article published in a professional journal or writing with which he is shown or professes to be familiar is of unquestionable relevance in testing the scope of the expert’s professional knowledge and expertise concerning the particular professional matter then at issue. The scope of such examination should remain subject to the usual and legitimate discretionary control of the trial court. But in such instances, cross-examination should be permitted whether it is first established that the journal is an “authoritative” or “standard” treatise. OCGA §§ 24-2-1; 24-9-64.

This expansion of the use of medical writings in cross-examination is not unfair, as an expert certainly should be expected to exhibit some knowledge or opinion as to relevant information contained within medical journals, texts, or other writings with which he professes to be personally familiar, particularly as by merely professing familiarity with various professional writings an expert may enhance his credibility with the jury. Further, while the trial court has a duty “to protect a witness from being unfairly dealt with” on cross-examination, it also has a duty “to allow a searching and skillful test of his intelligence, memory, accuracy, and veracity” and qualifications where relevant. Harris v. The Central R., 78 Ga. 525, 534 (3) (3 SE 355). “As a general rule, it is better that cross-examination should be too free than too much restricted.” Id. However, any form of cross-examination should not be without necessary limits. Thus, the trial court should be able to limit the scope of cross-examination, regarding exploration of the expert’s actual knowledge of the subject matter and degree of professional expertise, to relevant matters elicited by proper questioning. Prince v. Kujawa, 178 Ga. App. 828, 830 (2) (344 SE2d 680). This proposal is not novel, as Georgia has long favored the admission of any relevant evidence no matter how slight its probative value. Whisnant v. State, 178 Ga. App. 742 (1) (344 SE2d 536). Further, this procedure presents no fair risk of fundamental unfairness, as the scope and tone of the examination remains under the discretionary control of the trial court, the opposing party may timely request limiting instructions, and the expert remains free to express his views, as was done in this case, regarding the basic reliability of the articles appearing in such publications. Of course, it should not be allowed to cross-examine an expert over professional writings which are not “authoritative” or “standard” when his personal familiarity therewith has not been established, as in such instances his credibility has not been tacitly enhanced by his response, and the fair risk of prejudice would appear to exceed substantially the probative value to be gained by such cross-examination.

Decided April 8, 1992

Reconsideration denied July 10, 1992.

Thomas L. Murphy, for appellant.

Alston & Bird, Judson Graves, Kenneth B. Pollock, for appellees.

Accordingly, I would both affirm the judgment and expand the existing rule regarding cross-examination of experts over the contents of medical writings, as above outlined.


author: Beasley, Judge.

text:
    A92A0578.
    MULLE v. YOUNT.
    (420 SE2d 776)
   Beasley, Judge.

We granted the father’s application for a discretionary appeal from an order granting the mother’s petition for modification of visitation privileges. OCGA § 5-6-35 (a) (2).

Joint legal custody of their minor son was awarded in a final decree of divorce in Tennessee in May 1987. The mother received physical custody and the father, reasonable visitation privileges. Since November 1987, the mother and child have lived in Chatham County, Georgia. The father remains domiciled in Tennessee.

After the final decree, the Tennessee court entered a series of orders: modification of visitation on February 22, 1988; a consent order on May 13, 1988; denial of father’s petition for change of custody and temporary restraining order and mother’s counter-petition for contempt on June 2, 1988; modification of visitation and dismissal of mother’s petition for contempt on December 13, 1988; denial of mother’s petition to modify the method of transportation for visitation on January 23, 1989; and, on February 13, 1990, modification of visitation, denial of father’s petition for full custody, and adjudication of wilful contempt by the mother, ordering her to “tour” the jail facility. In its June 1988 order, the court expressly “retained] jurisdiction for all other matters pertaining to contempt or any other matter pertaining to this child.”

The present “petition for modification of custody and visitation” was filed by the mother on January 29, 1991, in Chatham County, seeking sole permanent custody of the child. The father responded with a motion to decline jurisdiction and to dismiss the complaint on the ground that the Tennessee court retained jurisdiction. The Georgia court denied the father’s motion and assumed jurisdiction under OCGA § 19-9-43 (a) (1) and (2) of the Uniform Child Custody Jurisdiction Act (UCCJA) (OCGA § 19-9-40 et seq.), concluding that Georgia is the child’s “home state” as defined by OCGA § 19-9-42 (5) since he has resided here with his mother since 1987. The court modified the Tennessee custody award pursuant to OCGA § 19-9-43 (a) (3), (b), solely with respect to the father’s visitation privileges.

OCGA § 19-9-43 sets out circumstances under which a competent court of this state has jurisdiction to make a child custody determination by initial or modification decree. Jurisdiction is obtained under subsection (a) (1) (A) if Georgia “is the home state of the child at the time of commencement of the proceeding.” “Home state” is defined in the UCCJA as “the state in which the child, immediately preceding the time involved, lived with ... a parent,... for at least six consecutive months. . . .” OCGA § 19-9-42 (5). The trial court was authorized to conclude that Georgia had “home state” jurisdiction under OCGA §§ 19-9-43 (a) (1) (A) and 19-9-42 (5) to modify the Tennessee order. However, OCGA § 19-9-54 allows a Georgia court to modify another state’s custody decree only when two prerequisites are satisfied. It recites: “(a) If a court of another state has made a custody decree, a court of this state shall not modify that decree unless: (1) It appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this article or has declined to assume jurisdiction to modify the decree; and (2) The court of this state has jurisdiction.” (Emphasis supplied.)

Although the trial court made the requisite finding of jurisdiction under subsection (2), it failed to determine under subsection (1) that Tennessee does not now have jurisdiction or has declined to assume jurisdiction. It was without authority to modify custody unless this additional jurisdictional threshold was found to exist. Gordon v. Gordon, 185 Ga. App. 100 (363 SE2d 353) (1987); Osgood v. Dent, 167 Ga. App. 406, 408 (1) (306 SE2d 698) (1983). See also Mercer v. Mercer, 194 Ga. App. 846, 848 (392 SE2d 41) (1990).

Decided June 25, 1992

Reconsideration denied July 10, 1992

McCorkle, Pedigo & Johnson, Carl S. Pedigo, Jr., Clark & Clark, H. Sol Clark, for appellant.

George M. Hubbard III, for appellee.

Appellee argues that Kemp v. Sharp, 261 Ga. 600 (409 SE2d 204) (1991), is applicable. There it was determined that the Georgia court properly declined to consider a father’s request for modification of visitation rights because the child and legal custodian were residents of Texas. The Court began the analysis under OCGA §§ 19-9-43 (a) (1) (A) and 19-9-42 (5), determining that Texas had “home state” jurisdiction. It then applied the policy of Georgia courts to “ ‘refuse to provide a forum for relitigating custody except where the legal custodian resides’ [cit.],” id. at 601, and concluded that venue was proper in the foreign state. In the present case, both parents are legal custodians, residing in two different states. Kemp does not make unnecessary a determination under OCGA § 19-9-54 (a) (1).

The judgment of the trial court is accordingly vacated, and the case is remanded for findings under OCGA § 19-9-54 (a) (1). If the court determines that Tennessee is without jurisdiction or has declined to exercise jurisdiction, it may then entertain the petition for modification of custody as originally decreed.

Judgment vacated and case remanded with direction.

Birdsong, P. J., and Andrews, J., concur.


author: McMurray, Presiding Judge.

text:
    A92A0857.
    WILLIAMS v. THE STATE.
    (420 SE2d 781)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of aggravated child molestation. This appeal followed the denial of defendant’s motion for new trial. Held:

1. In his first enumeration, defendant challenges the sufficiency of the evidence.

The three-year-old victim’s mother testified that she took the victim and his two brothers to her mother’s house for a weekend visit; that defendant then resided with her mother and that a few days after the visit the victim complained of discomfort in his genitals. The victim’s mother testified that she discovered the victim’s penis in a red and swollen condition and that, upon inquiry, the victim gave her a detailed account of how defendant sexually molested him. The vietim’s mother testified that she took the child to a physician for examination and the examining physician testified that the victim’s genitals were red, swollen and infected. The victim’s nine-year-old brother testified that defendant “touched [his] private part” while the boys were visiting at their grandmother’s house. This evidence is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of aggravated child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Defendant contends his character was impermissibly placed into issue when the trial court allowed evidence of his bi-sexual nature. The State contends evidence of defendant’s bi-sexuality is relevant because the victim was subjected to an act of aggravated child molestation involving homosexual behavior.

“ ‘Every fact or circumstance serving to elucidate or throw light upon the issue being tried, constitutes proper evidence in the case.’ Patterson v. State, 233 Ga. 724 (1) (213 SE2d 612). ‘ “Questions of the relevancy of evidence are for the court . . . when facts are such that the jury, if permitted to hear them, may or may not make an inference pertinent to the issue, according to the view which they may take of them, in connection with the other facts in evidence, they are such that the jury ought to be permitted to hear them.” ’ Ball v. State, 145 Ga. App. 254 (243 SE2d 672). ‘The Georgia rule favors admissibility of any relevant evidence, no matter how slight the probative value.’ Agnor’s Ga. Evid. § 10-2. Where evidence is of doubtful relevancy, the trial court should admit it and let its weight be decided by the jury. Crass v. State, 150 Ga. App. 374, 377 (257 SE2d 909); Lewis v. State, 158 Ga. App. 586, 587 (281 SE2d 331).” Bearden v. State, 159 Ga. App. 892, 893 (4) (285 SE2d 606).

In the case sub judice, there is evidence that the victim was the subject of a homosexual act. Under these circumstances, we cannot say that evidence of defendant’s bi-sexual nature is totally irrelevant. On the contrary, the evidence was admissible to prove intent, motive, plan, scheme and bent of mind. See Wellborn v. State, 258 Ga. 570, 572 (2) (372 SE2d 220). The trial court did not err in allowing the State to introduce evidence of defendant’s bi-sexuality.

3. Defendant contends the trial court erred in allowing evidence of the victim’s out-of-court statements, arguing that circumstances surrounding the statements did not provide sufficient indicia of reliability for admissibility under the Child Hearsay Statute, OCGA § 24-3-16.

“ ‘Indicia of reliability must spring from the circumstances of the statement. (Cits.) The factors which the court may consider, when applicable, include but are not limited to the following: (1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same; and, the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child. (Cits.)’ [Cit.]” Weathersby v. State, 262 Ga. 126, 128 (4b), 129 (414 SE2d 200).

Decided June 26, 1992

Reconsideration denied July 10, 1992.

Martin, Snow, Grant & Napier, Phillip A. Sibley, for appellant.

Willis B. Sparks III, District Attorney, Edward C. Bresee, Assis tant District Attorney, for appellee.

During the evening, two days after the alleged act of aggravated child molestation, the victim complained of pain in his genitals. The victim’s mother treated the child with “[v]aseline” and put him in bed. At about midnight, the victim awakened and again complained of pain in his genitals. The victim’s father treated the child with “[v]aseline” and put him back to bed. At 5:00 the next morning, the victim was in bed and was crying, complaining of severe pain and discomfort in his genitals. The victim’s mother examined the child and discovered that his penis was red and swollen. She then asked the child “had anyone been bothering his penis” and the victim gave a detailed account of how defendant committed acts of sodomy against him and how defendant forced the child to commit acts of oral sodomy. The victim’s mother took the child to a physician for examination and then took him to her mother’s house. The victim then told his grandmother that defendant orally sodomized him and that defendant forced him to perform acts of oral sodomy. This evidence and the victim’s mother’s testimony that she had never discussed oral sodomy with the three-year-old victim and that she had never known the child to make up stories authorizes a finding that the circumstances surrounding the statements provided sufficient indicia of reliability. See Howard v. State, 200 Ga. App. 188, 190 (4) (407 SE2d 769). The trial court did not err in allowing testimony of the child’s accusation that defendant committed the acts which constitute the crime of aggravated child molestation. Compare Hunnicutt v. State, 194 Ga. App. 714 (391 SE2d 790).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A0949.
    WILEY v. THE STATE.
    (420 SE2d 783)
   McMurray, Presiding Judge.

Defendant was found guilty of unlawful possession of a sawed-off shotgun with a barrel less than 18 inches in length and this appeal followed the denial of his motion for new trial. Held:

1. Defendant contends he was unjustly convicted and unfairly and cruelly punished because the State stipulated during the sentencing phase of trial that evidence supporting the verdict was incorrect. More specifically, defendant contends the State stipulated during the sentencing phase of trial that the barrel of the shotgun found in his possession was not measured according to procedures prescribed by “Alcohol, Tobacco & Firearms rules.” This argument is not supported by the record.

The State did not stipulate during the sentencing phase of trial that the shotgun found in defendant’s possession was improperly measured. The State simply did not object to defendant’s introduction into evidence of a document giving instructions for measuring the length of the barrel of a rifle or shotgun. This document did not contradict undisputed evidence presented at trial showing that the barrel of the shotgun found in defendant’s possession was measured according to “policy and procedure through the alcohol, tobacco and firearms individuals to make the determination on the length of the gun.” Further, there is nothing in the record indicating why defendant failed to introduce evidence regarding the alleged proper method for measuring a shotgun or rifle barrel. Under these circumstances, it cánnot be said that the trial court erred in denying defendant’s motion for new trial. See OCGA § 5-5-23; Westbrook v. State, 186 Ga. App. 493, 497 (4) (368 SE2d 131).

2. Defendant challenges the sufficiency of the evidence, arguing the State failed to prove the shotgun barrel found in his possession was less than 18 inches in length.

Special Agent Del Thomasson with the Georgia Bureau of Investigation testified that he seized from defendant’s residence a .12 gauge sawed-off shotgun with a barrel less than 18 inches in length. Special Agent Thomasson explained on cross-examination that the shotgun barrel was measured according to “policy and procedure through the alcohol, tobacco and firearms individuals to make the determination on the length of the gun.” This evidence was sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of unlawful possession of a sawed-off shotgun with a barrel less than 18 inches in length in violation of OCGA § 16-11-122. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See OCGA § 16-11-121 (5).

Decided June 26, 1992

Reconsideration denied July 10, 1992

Perry & Associates, Frank B. Perry, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Mark S. Perry, Assistant District Attorney, for appellee.

3. Defendant contends the trial court erred in failing to grant a directed verdict of acquittal. This contention presents nothing for appellate review as defendant did not assert a motion for directed verdict at trial. Weaver v. State, 200 Ga. App. 82 (1) (406 SE2d 574).

4. Defendant urges this Court “to consider this case as a proper case for the issuance of a Writ of Coram Nobis [because he] has no other adequate remedy at law.”

A writ of coram nobis is simply an extraordinary motion for new trial based on newly discovered evidence. See Willis v. State, 249 Ga. 261, 263, 264 (290 SE2d 87). An extraordinary motion for new trial (a motion for new trial filed more than 30 days after the entry of judgment) based on newly discovered evidence “must be directed to the trial court in the first instance. See OCGA §§ 5-5-40, 5-5-41; Dick v. State, 248 Ga. 898 (287 SE2d 11) (1982). This has not been done, and accordingly we will not consider the issue at this time.” Williams v. State, 254 Ga. 6, 9 (2) (326 SE2d 444).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


author: Cooper, Judge.

text:
    A92A0673.
    HOWARD v. THE STATE.
    (420 SE2d 811)
   Cooper, Judge.

Appellant was convicted by a jury of rape. Following the denial of his motion for new trial, appellant appeals raising three enumerations of error.

The evidence adduced at trial reveals that appellant approached the victim at the Five Points MARTA station in Atlanta and began talking to her. The victim had never seen appellant before that day. Appellant told the victim that he was going shopping and convinced her to take the bus with him to a mall. Appellant and the victim got on a bus headed toward the mall, but before the bus got to the mall, appellant persuaded the victim to get off the bus and go with him to his house so that he could get his father’s car and drive them to the mall. Once they arrived at appellant’s house, appellant told the victim that he was going to call his father to arrange to use the car. Appellant then sat next to the victim on a couch and put his hand up her skirt. The victim jumped up and ran to the front door, but appellant blocked the door and pulled the victim toward the bedroom. Appellant told the victim to take her panties off and threatened the victim several times by telling her that he would get his gun if she did not cooperate. Appellant then raped the victim. The victim subsequently identified appellant in a photographic lineup as the man who raped her.

The State introduced evidence of a similar transaction which occurred less than one year earlier. As part of that evidence, the victim testified that appellant approached her near the Five Points MARTA station and began talking to her about why she looked so depressed. The victim told appellant about her financial troubles, and appellant suggested to the victim that she accompany him to his house where he would introduce her to someone who would get her into the drug business. Appellant and the victim got a ride to appellant’s house and waited there for appellant’s friend. When the friend failed to show, the victim tried to leave, but appellant blocked the victim’s way. Appellant struck the victim several times and then took out a knife, forced the victim to take off her clothes and raped her.

Appellant testified and admitted having consensual sexual intercourse with the victim in the instant case and stated that the victim became angry when appellant refused to give her money. Appellant also testified that he had consensual sexual intercourse with the similar transaction victim and that she too became angry when he did not give her money.

1. In two enumerations of error, appellant contends that the trial court erred in admitting the similar transaction evidence. First, appellant argues that at the time of trial, he had not been tried on the charges related to the similar transaction; therefore, any purported relevance was outweighed by the prejudicial impact of that evidence. The fact that appellant had not been tried on the prior transaction did not preclude the admission of the evidence. McGuire v. State, 188 Ga. App. 891 (1) (374 SE2d 816) (1988). “ ‘ “Evidence of similar transactions or crimes is admissible when it is shown that the defendant is the perpetrator of the similar offense, and there is sufficient similarity between the independent crime and the offense charged that proof of the former tends to prove the latter. (Cit.) Evidence of independent crimes has been admitted to show bent of mind and course of conduct, and has been most liberally extended in the area of sexual offenses. (Cit.) There was no question that appellant was the perpetrator of the similar [offense], and the modus operandi of appellant was the same. Thus, such evidence was admissible to show appellant’s bent of mind. . . . (Cit.)” (Cits.)’ [Cits.]” Williams v. State, 190 Ga. App. 646, 647-648 (1) (381 SE2d 65) (1989). There were numerous similarities between the two offenses which occurred less than one year apart. Appellant approached both victims at or near the same location and used deception to convince the victims to accompany appellant to his house. Appellant either produced a weapon or threatened the use of a weapon to force the victims to disrobe before appellant raped the victims. Appellant also argues that the State’s presentation of four witnesses to prove the similar transaction was prejudicial. We find no merit to that argument and conclude that the similar transaction evidence was properly admitted.

Decided July 10, 1992.

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Elisabeth MacNamara, Assistant District Attorneys, for appellee.

2. Appellant enumerates as error the trial court’s refusal to grant a mistrial when the State placed appellant’s character in issue. During the victim’s testimony she stated that a detective investigating the case showed her “pictures of different people that had committed crimes. . . .” Appellant’s counsel objected and moved for a mistrial on the ground that appellant’s character had been impermissibly placed in issue. The court denied the motion and instructed the jury to disregard the statement by the victim. “ ‘When prejudicial matter is placed before the jury in a criminal case, the trial judge must decide whether a mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the testimony from consideration of the jury under proper instructions,.’ [Cit.] Whether a mistrial is necessary to preserve the defendant’s right to a fair trial is a matter within the discretion of the trial judge. [Cit.]” Tyler v. State, 198 Ga. App. 685, 687 (1) (402 SE2d 780) (1991). We find no abuse of discretion in the denial of the motion for mistrial.

Judgment affirmed.

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


author: Cooper, Judg;e.

text:
    A92A0720.
    HENDERSON v. THE STATE.
    (420 SE2d 813)
   Cooper, Judg;e.

Appellant was convicted by a jury of aggravated assault with intent to rape (OCGA § 16-5-21 (a) (1)).

1. In two enumerations of error, appellant raises the general grounds, challenging the sufficiency of the evidence against him. The evidence at trial showed that the victim, a school teacher, was approached by a man in the school parking lot as she was getting into her car on the afternoon of June 3, 1991. After passing by, the man turned, ran towards the victim in the open car door, jumped on top of her and threw her across the car seat. He began repeatedly hitting her in the head and attempted to pull one of her legs, which remained outside the car, inside the car. The victim was able to press the car horn, which brought others, including the school principal, out from the school; and when the attacker saw them he fled.

The victim was able to produce a composite drawing of her assailant, which closely approximated the photograph of appellant that she, at a later date, picked out of a six photograph line-up. At appellant’s preliminary hearing the victim identified appellant as her assailant from among several black males garbed in jail jumpsuits; and she again identified appellant as her assailant at trial. She testified she had absolutely no doubt that appellant was the man who attacked her, and that she particularly remembered his eyes. The school principal, who had known appellant slightly prior to the day of this assault, has seen the assailant running away from the victim’s car and also positively identified appellant as the assailant.

The State presented evidence of three similar incidents in which appellant pled guilty to aggravated assault with intent to rape in similar circumstances in the past ten years. Diane Koellman, the victim in the first of these three similar incidents and an employee of the Clayton County Library System at the time, testified that on the afternoon of August 23, 1982, she was delivering and picking up books at the Main Library, which is located adjacent to an elementary school and across the street from a middle school. While she was loading books in her van, appellant approached and asked her for a ride. She was not alarmed because she recognized him as a frequent visitor to the library, but told him she could not give him a ride. As she was putting the last bin of books in the van, he shoved her into the van with him, pulled the door closed and proceeded to wrestle with her, trying to pull her dress up and making comments of a sexual nature. Koellman continued to fight and managed to get an unlatched door open. The struggle continued outside the van until some people in the library looked out the back window, saw what was happening, and came out. Appellant then ran off and jumped on his bicycle. Koellman identified appellant as her attacker when he was arrested for attacking her, and again identified him as her attacker at the trial in this case. The officer who investigated the Koellman assault testified that after appellant was arrested he denied that he had tried to rape Koellman. A certified copy of appellant’s guilty plea for aggravated assault with intent to rape Koellman was then admitted.

The second similar incident involved an attack on Judy Hutch-ens, a kindergarten teacher, as she was getting out of her car in the school parking lot on October 16, 1984. Hutchens testified that she was bending into the passenger side of her car when an attacker grabbed her from behind, threw her to the ground, and pulled up her skirt. Hutchens fought back, scratching her attacker’s face. The attacker then quickly left on foot, but turned back to look at her. Hutchens identified appellant as her attacker at a preliminary hearing in her own case, and also identified him as her attacker at the trial in this case. She testified that she particularly remembered his eyes. The investigator on the Hutchens case testified that appellant was apprehended quickly after the Hutchens attack, and that appellant had initially denied the attack but then said he intended to rob her. A certified copy of appellant’s plea of guilty to aggravated assault with intent to rape Hutchens was then admitted.

The final similar incident involved an assault on Shirley Alley, a teacher in a correctional institution, on March 4, 1987. Alley testified that she was alone in her classroom when an inmate came in, tried to put a jacket over her head, and pushed her up against a bookcase. When she screamed and flung her arms around, he fled. He was caught by another inmate. Alley identified appellant as her assailant at the time he was caught, and again identified him as her assailant at the trial in this case. A certified copy of appellant’s guilty plea to assault with intent to rape Ms. Alley was then admitted.

Viewing the evidence in a light most favorable to the verdict, we find that the evidence was sufficient for a rational trier of fact to find appellant guilty of aggravated assault with intent to rape beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In two enumerations of error, appellant contends that the trial court erred in admitting the similar acts evidence. He argues first that the evidence was more prejudicial than probative, and second that it improperly placed his character in issue in violation of OCGA §§ 24-2-2 and 24-9-20 (b). Because these arguments both go to the relevance of the similar acts evidence and the former contention is generally treated as a corollary of the latter, see Williams v. State, 261 Ga. 640 (2a) (409 SE2d 649) (1991), we will address them together.

Evidence regarding the character of a defendant is generally inadmissible unless the defendant putá his character in issue. Id. As a corollary to this principle, evidence of independent offenses committed by a defendant is generally inadmissible due to its inherently prejudicial nature and minimal probative value. Id. These general principles do not apply, however, where the charged offense and the independent offenses are sufficiently similar that evidence of the independent offenses is highly probative of some element of the charged offense. In such cases the probative value of the evidence outweighs the potential for prejudice, and any incidental reflection on the defendant’s character does not render this otherwise relevant and admissible evidence irrelevant or inadmissible. Felker v. State, 252 Ga. 351 (1a) (314 SE2d 621) (1984). Thus, evidence of independent offenses may be admitted if the State introduces the evidence for a proper purpose, if there is sufficient evidence to establish that the defendant actually committed the independent offenses, and if there is sufficient similarity between the charged offense and the independent offenses. Williams, supra at 642.

We conclude that the trial court properly admitted the similar acts evidence. The evidence was highly probative of appellant’s intent to rape, a necessary element of the charged offense. OCGA § 16-5-21 (a) (1). Furthermore, the evidence was sufficiently similar that proof of the independent offenses tended to prove the charged offense. All of the offenses involved attacks on lone women during daylight hours in or around schools or classrooms. In all but one of the incidents, the defendant was totally silent or said two or fewer words during the attack, and on each occasion the attacker fled when the victim fought back or made noise that attracted the attention of others. Under these circumstances, the trial court’s determination that the offenses were sufficiently similar was not clearly erroneous. See McGowan v. State, 198 Ga. App. 575 (2) (402 SE2d 328) (1991). That the similar incidents occurred over a period of almost ten years prior to the charged offense does not compel a different conclusion. Hill v. State, 183 Ga. App. 404 (1) (359 SE2d 190) (1987).

Appellant’s reliance on Williams is misplaced. In Williams the Georgia Supreme Court overturned a conviction due to improper admission of similar acts evidence, despite the presence of the factors described above, because the State, having demonstrated the similarities of the charged and independent offenses to the trial court outside the presence of the jury, simply presented the jury with a certified copy of the prior convictions (rather than presenting the jury with evidence demonstrating the similarities). See also Little v. State, 202 Ga. App. 7 (1) (413 SE2d 496) (1991). Here, however, the State introduced each of the three prior independent offenses through testimony of the victim demonstrating the similarities between the offenses, and for two of the three prior incidents the investigating officer testified as well.

3. Appellant also contends that a hearing to determine the admissibility of the similar acts evidence was not held in accordance with Uniform Superior Court Rule 31.3. The record shows, however, that such a hearing was held immediately prior to the beginning of the trial, outside the presence of the jury, at which time the prosecutor stated in her place the facts relevant to a determination of sufficient similarity and the purpose for which the evidence of similar acts was offered. A trial court’s finding of sufficient similarity based on the prosecutor’s statement of the relevant facts she expects to show is proper. McGowan, supra at 576. Moreover, Rule 31.3 leaves the timing of the hearing to the trial court’s discretion, and this court has held that a hearing held just prior to trial was satisfactory — at least where the defendant shows no injury resulting from not having the hearing sooner. See Houston v. State, 187 Ga. App. 335 (2) (370 SE2d 178) (1988).

Decided July 10, 1992.

James J. Dalton II, for appellant.

4. The trial court admitted testimony regarding appellant’s statement after his arrest that he had been at the school on the day of the assault, but had not attacked anyone. Appellant contends that the trial court erred in allowing this testimony without first holding a Jackson-Denno hearing on the voluntariness of the statement. In the trial court, however, appellant took the position that he never made the alleged statement. He did not challenge the voluntariness of the statement, did not request a Jackson-Denno hearing, and did not object to the testimony at trial. In the absence of a proper objection or some contemporaneous challenge to the voluntariness of a confession or other statement by a defendant, no Jackson-Denno hearing is required. McNair v. State, 190 Ga. App. 412 (2) (379 SE2d 424) (1989). Thus, this enumeration of error is also without merit.

5. In his last enumeration of error, appellant contends that his rights were violated by lack of legal representation at his preliminary hearing. Appellant raises this argument for the first time on appeal, however, thereby depriving the trial court of any opportunity to make a determination on the issue and this court of any trial court determination to review. See Lewis v. State, 188 Ga. App. 205 (2) (372 SE2d 482) (1988). In any case, lack of legal representation at a preliminary hearing will only provide the basis for reversal of a conviction if the defendant was materially prejudiced by the lack of representation. Tarpkin v. State, 236 Ga. 67 (1) (222 SE2d 364) (1976). Appellant here has alleged no harm resulting from his lack of representation at the preliminary hearing, and we are unable to determine from the record any way in which the lack of counsel at the preliminary hearing might have contributed to appellant’s conviction. Thus, to the extent there was any error below with respect to appellant’s lack of legal representation at his preliminary hearing, the error would be harmless beyond a reasonable doubt. Id.

Judgment affirmed.

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

Robert E. Keller, District Attorney, Tracy G. Gladden, Assistant District Attorney, for appellee.


author: Carley, Presiding Judge.

text:
    A92A0385.
    HARRIS v. STRICKLAND.
    (421 SE2d 91)
   Carley, Presiding Judge.

Appellant-plaintiff’s son was killed while operating a tractor on appellee-defendant’s farm. Appellant filed suit, alleging that appellee had been “negligent in furnishing defective machinery to [her son] and [that appellee had] failed to warn [her son] of said defective condition.” See OCGA § 34-7-20. In specific, appellant’s complaint alleged that “the seat on the tractor detached resulting in [her son] falling from the tractor” to his death. Appellee answered and the case was tried before a jury. A verdict in favor of appellee was returned and appellant appeals from the judgment that was entered on that verdict.

1. Appellant enumerates as error the giving of a charge on legal accident.

“Although it has been recognized that a charge on legal accident is potentially confusing to juries and is redundant of the general principles of negligence law, ‘Georgia has not discarded accident as a proper subject for jury instructions. . . . [Cits.]’ ” Tolbert v. Duckworth, 202 Ga. App. 873 (415 SE2d 911) (1992), cert. granted April 24, 1992. However, “[t]he defense of accident in this state is to be confined to its strict sense as an occurrence which takes place in the absence of negligence and for which no one would be liable. Unless there is evidence authorizing a finding that the occurrence was an ‘accident’ as thus defined, a charge on that defense is error. [Cits.]” (Emphasis in original.) Chadwick v. Miller, 169 Ga. App. 338, 344 (1) (312 SE2d 835) (1983). There were no witnesses to the events which led to the death of appellant’s son. The circumstantial evidence was such as to authorize a finding that the death was the proximate result of either the negligent maintenance of the tractor by appellee or the negligent operation of the tractor by appellant’s son. However, such a finding was not demanded. The circumstantial evidence would also authorize a finding that the death was the proximate result of negligence on the part of neither appellee nor appellant’s son. Appellant’s son may simply have lost control of the tractor and fallen through no fault of his own and as the result of no defect in the tractor itself.

When the death was discovered, the seat of the tractor was detached and appellant attributes this to negligent maintenance by appellee and urges that detachment of the seat precipitated her son’s fatal fall. However, the evidence did not demand a finding that the detachment of the seat preceded the fall or contributed thereto. The detachment of the seat may simply be the subsequent result of the driverless tractor careening out of control or of the tractor’s ensuing crash into a tree. If appellant’s son merely fell and if the tractor was only subsequently damaged, the death would be the result of no one’s negligence. Accordingly, “we do not find this a case where the legal theory of accident is inappropriate, as where the evidence demands a finding that the injury resulted from the negligence of either the plaintiff or a defendant, as might be the case, for example, where at an intersection collision both sides admit that access is controlled by a traffic light, and each contends that the other litigant ran the red light.” Chastain v. Fuqua Indus., 156 Ga. App. 719, 723-724 (4) (275 SE2d 679) (1980). Accordingly, it was not error to give a charge on the principle of legal accident over appellant’s objection that such a charge was not authorized under the evidence.

Appellant further urges that, if a charge on the principle of legal accident was otherwise authorized under the evidence, the charge that was actually given by the trial court erroneously defined that principle. In the trial court, appellant’s only objection was that “we don’t think [the charge] is a correct statement [of] the law on [legal] accident.” Assuming, without deciding, that this was not a mere general objection preserving nothing for appellate review (but see Harper v. Ga. &c. R. Co., 140 Ga. App. 802, 804 (7) (232 SE2d 118) (1976)), the charge on legal accident, as phrased by the trial court, would not constitute reversible error. Compare Cohran v. Douglasville Concrete Prods., 153 Ga. App. 8, 10-11 (1) (264 SE2d 507) (1980).

Appellant’s remaining contentions regarding the giving of a charge on legal accident were not raised below and present nothing for review on appeal.

2. At trial, evidence was adduced which would authorize a finding that, through wear and tear, the seat of the tractor had become latently defective and that, although appellee knew or should have known of that latent defect, he did not warn appellant’s son of its existence. Accordingly, the trial court charged on appellee’s potential liability pursuant to OCGA § 34-7-20. See Cochrell v. Langley Mfg. Co., 5 Ga. App. 317 (3) (63 SE 244) (1908). Pursuant to OCGA § 34-7-23, the trial court also charged that, “where it appears from the evidence that the employee has equal means with his employer of knowing the defects in machinery and the dangers of employment and the danger is as apparent to the employee as it is to the employer, the employee is not entitled to recover.” (Emphasis supplied.) Appellant enumerates the giving of this charge as error.

It is undisputed that the only alleged defect in the seat of the tractor was latent- and not patent. There is no evidence that appellant’s son had actual knowledge of the allegedly defective tractor seat. There is no evidence that inspecting the tractor was a part of the assigned duties of appellant’s son. Owensby v. Jones, 109 Ga. App. 398, 399 (4) (136 SE2d 451) (1964). It follows, therefore, that the trial court erred in giving the charge on the “equal means” of appellant’s son of knowing of the alleged defect in the tractor seat. International Cotton Mills v. Carroll, 22 Ga. App. 26 (1a, b) (95 SE 472) (1918); City of Atlanta v. Trussell, 21 Ga. App. 340, 349 (3) (94 SE 649) (1917). “Whether [appellant’s son] had the same opportunity as [appellee], of knowing of the defects [in the tractor seat] alleged and proved, would depend upon the character of such defects, — whether they were latent or patent. Where the defect is superficially discernible or plainly apparent to the eye, the servant has the same opportunity of seeing it and knowing of it as the master. But if the defect is latent, the master would be held bound to discover the fact sooner than the servant, because the duty of inspection rests on the master, and not on the servant. In a case of latent defects, — those which are only discoverable by proper inspection, — the master is necessarily held to a higher standard of conduct than the servant, since the master owes to the servant the duty of inspection. [Cits.] . . . Therefore, if [appellant’s son] was under no duty to inspect the [seat of the tractor], he can not be held impliedly to have known of [its allegedly] defective condition and to have assumed the risk.” Cockrell v. Langley Mfg. Co., supra at 324 (3).

This charge instructed the jury on a defense that, under the evidence, was not available to appellee. If appellee was not liable, it clearly would not be because the evidence authorized a finding that appellant’s son had “equal means” of knowing of the allegedly defective tractor seat. The evidence is undisputed that that alleged defect was latent rather than patent and was, therefore, not as “apparent” to appellant’s son as it was to appellee. If there was such a latent defect of which appellee did not warn appellant, appellee would be liable unless that defect had not been a proximate cause of the death. Under this unauthorized charge, the jury may have found that the proximate cause of death of appellant’s son was the defective tractor seat of which appellee failed to warn appellant and, thus, may have erroneously concluded that a recovery would not be authorized because appellant’s son had assumed the risk thereof. Accordingly, a new trial must be held wherein, if the evidence remains the same, this charge should not be given.

3. Appellant also enumerates as error the giving of the following charge: “[A]n adult employee of ordinary intelligence would be held to be affected with knowledge of a manifest risk or danger incident to the doing of a particular thing in the operation of a machine during his employment, and although he may be inexperienced as to such operation and though the employer may have failed to instruct him in respect thereto.” (Emphasis supplied.) See Clayton v. Larisey, 190 Ga. App. 512, 514 (379 SE2d 789) (1989).

Decided June 30, 1992

Reconsideration denied July 13, 1992.

Mitchell, Coppedge, Wester, Bisson & Miller, Warren N. Coppedge, Jr., Rodney L. Mathis, for appellant.

James B. Langford, Bailey & Bearden, J. Lane Bearden, for appellee.

Construing the evidence most favorably for appellant, her son died as the result of a latent defect in the tractor which appellee negligently failed to discover and warn against. However, unlike the charge discussed in Division 2, the instant charge does not relate to “manifest” defects in the tractor itself, but to the “manifest” risk or danger incident to the operation of the tractor. Construing the evidence most favorably for appellee, appellant’s son died as the result of the manifest risk or danger incident to his operation of the tractor, in that he simply lost his balance while seated on the moving tractor. If, as appellee contended, appellant’s son died as the result of this “manifest” risk or danger rather than the latent defect in the tractor, there could be no recovery: “The ordinary risks of the employment, though there be dangers attendant thereon, are assumed by the servant, and especially is this true where the dangers are obvious.” Self v. West, 82 Ga. App. 708, 712 (1) (62 SE2d 424) (1950). Thus, the charge was adjusted to the evidence regarding one of appellee’s defensive contentions and was, therefore, not erroneously given.

4. Appellant called witnesses who were prepared to testify to certain out-of-court statements allegedly made to them by one of appellee’s employees the day after the death of appellant’s son. The trial court sustained appellee’s hearsay objection to the introduction of this testimony and appellant enumerates this evidentiary ruling as error.

The purported declarant was not unidentified and was available to testify as to any facts within his personal knowledge. The alleged out-of-court statements attributed to him were not shown to have been made in pursuance of his employment by appellee or within the res gestae. Accordingly, the trial court correctly sustained appellee’s hearsay objection to the introduction of this testimony. Brooks v. Kroger Co., 194 Ga. App. 215 (2) (390 SE2d 280) (1990). Compare Stouffer Corp. v. Henkel, 170 Ga. App. 383 (1) (317 SE2d 222) (1984).

Judgment reversed.

Pope and Johnson, JJ., concur.


text:
    A92A0805.
    COLLINS v. BYRD et al.
    (420 SE2d 785)
   McMurray, Presiding Judge.

The appellant Annie Collins was severely injured in a one vehicle collision on January 18, 1987. She filed suit on January 17, 1989, against Gary Kenneth Byrd, Kevin Byrd and Rosa L. Williams, alleging that Rosa L. Williams owned the vehicle and negligently entrusted it to Gary Kenneth Byrd, who was driving it under the direction of Kevin Byrd, and that their combined negligent actions proximately caused her injuries. Also, named as a defendant was General Motors Corporation (“GM”), which was alleged to have been negligent in the design and manufacture of the vehicle, a 1972 GMC Rally van, and in failing to warn of the danger after it was discovered. Named as further defendants were the State of Georgia and the State of Georgia Department of Transportation (“DOT”), which she asserted had negligently designed, repaired and/or maintained State Route 4 in such a manner as to cause water to stand on the highway and the vehicle in which she was a passenger to hydroplane and crash into a tree. Appellant did not claim that any defect in the van or any negligence of GM caused the van to leave the roadway, and GM moved for summary judgment based upon the statute of repose and appellant’s failure to develop or reveal through discovery any evidence in support of her action. DOT raised the defense of sovereign immunity and also moved for summary judgment. A hearing was scheduled on these motions for April 6, 1990, but shortly beforehand appellant indicated she would voluntarily dismiss her complaint without prejudice. This dismissal was filed on April 12, 1990, and on October 10, 1990, one day before expiration of the six-month period provided by the renewal statute, appellant refiled her complaint reasserting all the claims originally raised against all the defendants. Again she cited no facts to support her negligence claims in response to GM’s discovery efforts, and named no individual defendants nor alleged a waiver of sovereign immunity as to DOT.

On November 29, 1990, DOT moved for summary judgment on the same grounds raised in the original suit. In response thereto, appellant filed a motion to add named employees of DOT. A hearing was held on these motions on July 17, 1991, at which time the trial court denied appellant’s motion, and on August 19, 1991, granted DOT’s motion for summary judgment on grounds of sovereign immunity. After appellant failed to comply with its requests for supplemental discovery, GM’s motion for summary judgment filed on February 13, 1991, was granted by the same order. This appeal is from that order. Held:

1. Appellant contends that the trial court erred by shifting the burden to her to go forward with evidence to prove her right to recover against GM before it presented any evidence to pierce any material allegation of her complaint. She relies upon the fundamental principles of OCGA § 9-11-56 placing the burden on the moving party for summary judgment to establish the nonexistence of any genuine issue of material fact, and resolving all doubts against the movant. However, GM represents, and the record affirms, that during the three years of litigating this case appellant has never at any time produced any competent evidence of any defect in design, manufacture or operation of the almost 20-year-old vehicle in which she was injured. The fact that appellant was thrown up against the back of the van at the time of the collision or that the interior of the van had metal framing, as she alleged, in no way supports her claims.

A defendant may prevail on its motion for summary judgment “by showing the court that the documents, affidavits, depositions and other evidence in the record reveal there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.] A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Accord Mauldin v. Weinstock, 201 Ga. App. 514 (5) (411 SE2d 370) (1991). Sullenberger v. Grand Union Co., 201 Ga. App. 194 (410 SE2d 381) (1991).

“Given [appellant’s] continued inability or unwillingness throughout [the three-year period this case has been in litigation] to cite any specific instances of [GM’s alleged negligence], the trial court was authorized under such circumstances to conclude that no such conduct had in fact occurred and that no material issue of fact remained to be tried with respect to this claim. Consequently, the trial court was authorized to award [GM] summary judgment on the claim, notwithstanding the absence , of any sworn testimony affirmatively negating the allegation that such conduct had occurred. [Cits.]” Munna v. Lewis, 181 Ga. App. 860, 862 (2), 863 (354 SE2d 181) (1987).

2. Appellant asserts that the trial court erred in denying her motion to add three individual employees of DOT as defendants, as they were merely nominal parties necessary to trigger the insurance coverage and the case would in reality still be against the original defendant, DOT. See generally Price v. Dept. of Transp., 257 Ga. 535 (361 SE2d 146) (1987) and Martin v. Ga. Dept. of Public Safety, 257 Ga. 300 (357 SE2d 569) (1987). This court has previously considered and rejected appellant’s argument that the six-month renewal period allowed by OCGA § 9-2-61 interacts with the amendment provisions of OCGA § 9-11-15 (c) to permit the addition of new parties who would otherwise be barred by the two-year statute of limitation for personal injury actions. “ ‘CPA § 15 (c) provides for the relation back of an amendment to “the date of the original pleading.” We interpret the phrase “original pleading” to mean the pleading being amended. In the present case, the pleading being amended was the second complaint. When that complaint was filed, the statute of limitation had already run as to [the individual DOT employees].’ [Cit.] Thus, the renewal statute ‘may not be used to suspend the running of the statute of limitation as to defendants different from those originally sued.’ [Cits.]” Wagner v. Casey, 169 Ga. App. 500, 501 (2), 502 (313 SE2d 756) (1984). Accord Heyde v. Xtraman, Inc., 199 Ga. App. 303 (404 SE2d 607) (1991). Because appellant refiled her complaint naming only DOT as defendant despite her knowledge of DOT’s sovereign immunity defense in the original action, her attempt to amend the pleadings by adding the individual defendants more than two years after the running of the statute of limitation was foreclosed.

3. Appellant’s final enumeration of error challenges the grant of summary judgment to DOT on the issue of sovereign immunity. She submits that even without the naming of individual employee defendants, the purchase of liability insurance or the establishment of a fund to cover injuries resulting from the acts of the individual employee should be deemed a knowing waiver of sovereign immunity. However, “[t]he appellant never made any such allegation in the court below, with the result that [DOT] was never called upon to deny the existence of such insurance coverage and the trial court was never called upon to rule on the issue. Consequently, this contention presents nothing for review on appeal. . . . Indeed, the general rule is that ‘(i)n the absence of express statutory (or constitutional) authorization, neither counsel for the state'nor any of its agencies may, by affirmative action or by failure to plead, waive the defense of governmental immunity.’ [Cits.]” Kelleher v. State of Ga., 187 Ga. App. 64 (1), 65 (369 SE2d 341) (1988). Thus, summary judgment was also properly granted to DOT. Compare Jackson v. Dept. of Transp., 201 Ga. App. 863 (412 SE2d 847) (1991).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.

Decided June 26, 1992

Reconsideration denied July 13, 1992

Richard Phillips, for appellant.

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, William G. Cromwell, Staff Attorney, King & Spalding, Paul B. Murphy, Dubberly & McGovern, Bruce D. Dubberly III, for appellees.