author: Carley, Judge.

text:
    74409.
    SERWITZ v. GENERAL ELECTRIC CREDIT CORPORATION.
    (362 SE2d 439)
   Carley, Judge.

In the first appearance of this case before this court, appellant-defendant was appealing from the denial of his motion to set aside the default judgment that had been entered against him after his answer had been stricken as a sanction for his failure to comply with that portion of a discovery order which awarded attorney’s fees to appellee-plaintiff. Because appellant’s answer had been stricken by a self-effectuating order of the trial court, the denial of his motion to set aside the default judgment was reversed. See Serwitz v. Gen. Elec. Credit Corp., 174 Ga. App. 747 (331 SE2d 95) (1985). Our holding included the following: “Lest there be any confusion as to the status of this case as the result of our holding herein, upon return of the remittitur from this court to the trial court and the consequent setting aside of the judgment against appellant, appellee may, if it chooses, move for the imposition of sanctions pursuant to OCGA § 9-11-37 (b) for appellant’s failure to comply fully with the trial court’s [discovery] order. Following proper notice and hearing, the trial court may enter an appropriate order based upon the evidence presented at the hearing.” Serwitz v. Gen. Elec. Credit Corp., supra at 750 (2), fn. 1.

Upon the return of the remittitur to the trial court, appellee did elect to move that the sanction of striking appellant’s answer be imposed. A hearing on appellee’s motion was scheduled by the trial court, but a continuance was granted at the request of appellant, who appeared pro se and protested that adequate notice had not been given to him. A hearing, at which appellant again appeared pro se, was ultimately held. Following that hearing, the trial court granted appellee’s motion to strike appellant’s answer. Appellant brings this appeal from the default judgment that was entered against him.

The striking of defensive pleadings and the entry of default judgment pursuant to OCGA § 9-11-37 (b) (2) (C) is a harsh sanction. See generally Thornton v. Burson, 151 Ga. App. 456, 457 (2) (260 SE2d 388) (1979). However, a defendant’s wilful failure to comply with an order requiring the payment of attorney’s fees as reimbursement for the expenses incurred by the plaintiff in obtaining a discovery order has been held to authorize the imposition of that sanction. See Mathews v. City of Atlanta, 167 Ga. App. 168 (306 SE2d 3) (1983). Appellant enumerates as error the trial court’s imposition of that sanction against him, urging that there was no evidence that his failure to comply with the trial court’s order that he pay attorney’s fees to appellee had been wilful.

“ ‘A court cannot assume that a . . . failure [to comply with its order is] unjustifiable. It must examine the circumstances retrospectively. This means affording [the non-complying party] an opportunity to explain the circumstances following the failure. . . .’ [Cits.]” Serwitz v. Gen. Elec. Credit Corp., supra at 750 (2). In the context of the sanctions hearing that was conducted pursuant to our earlier decision in this case, appellant did not admit that his failure to pay the attorney’s fees awarded to appellee was wilful. Compare Mathews v. City of Atlanta, supra. Appellant stated to the trial court that he was prepared to give sworn testimony and to present other evidence to the effect that his noncompliance was solely the result of his financial inability to pay the attorney’s fees to appellee within the time limit established in the trial court’s order. The trial court, however, never afforded appellant the opportunity to present the evidence that he stated he was prepared to offer. Apparently, at no point prior to the sanctions hearing had appellant ever attempted to present his alleged poverty to the trial court as an excuse for his failure to pay the court-ordered attorney’s fees. It would appear that the trial court construed appellant’s failure to have raised the issue of his poverty at some earlier time as a waiver of his right to rely upon that factor as an excuse in the sanctions hearing.

If one has legal objections to the discovery that is requested of him, there are specific formal procedures available by which a judicial determination of his obligation to respond may be obtained. If those procedures are not timely invoked, legal objections to the discovery are waived and may not, in the context of a subsequent sanctions hearing, be relied upon as an excuse for the failure to respond. See generally Wetherington v. Koepenick & Horne, Inc., 153 Ga. App. 302 (265 SE2d 107) (1980). However, we do not deal here with appellant’s failure to make a timely response to discovery to which he made no timely legal objections. Appellant failed to make a timely payment of attorney’s fees pursuant to the trial court’s previous discovery order. By way of justification for his noncompliance, appellant does not attempt to raise a belated legal objection to the trial court’s authority to award appellee attorney’s fees or to appellee’s entitlement to receive them. Appellant’s justification is personal rather than legal and is explanatory rather than defensive. The law does not provide a specific procedure by which one who has no legal objections to a discovery order which requires that he pay attorney’s fees within a specified time period can, prior to the sanctions hearing, formally present his poverty to the court as the explanation for his failure to comply with its previous order. The proper time to offer one’s poverty as an excuse or justification to the court for his failure to comply with its discovery order is at the hearing on the imposition of sanctions. Accordingly, appellant did not waive his alleged poverty as an excuse or justification by his failure to have raised it at some prior time.

Had appellant been afforded the opportunity at the sanctions hearing to present evidence supporting his assertion of poverty and had that evidence been unrebutted, a finding of appellant’s wilfulness at the time of his noncompliance and the dismissal of his answer would not have been authorized. “ ‘(T)he dismissal of a party’s pleadings for failure to respond to a discovery order is an extreme sanction which is warranted only where there exists a clear record of delay or contumacious conduct, and a lesser sanction would not better serve the interests of justice.’ [Cit.]. . . . ‘[T]he drastic sanctions of dismissal and default cannot be invoked under [OCGA § 9-11-37] except in the most flagrant cases — where the failure is wilful, in bad faith or in conscious disregard of an order. [Cit.]. . . . The Supreme Court has cautioned against the harsh application of this rule. [Cit.]”’ Serwitz v. Gen. Elec. Credit Corp., supra at 749-750 (2). If, on the other hand, appellant had offered his evidence and appellee had then rebutted it to the satisfaction of the trial court sitting as trior of fact, then a finding of appellant’s wilfulness and the dismissal of his answer would have been authorized. However, appellant was not afforded the opportunity to present his evidence at the sanctions hearing and appellee was not given the opportunity to rebut such evidence as might have been presented by appellant. Accordingly, we reverse the order of the trial court striking appellant’s answer and the default judgment that was entered against him and remand the case for another hearing on the issue of the wilfulness of appellant’s noncompliance with the trial court’s order that he pay attorney’s fees to appellee. During the hearing, both parties will be afforded the opportunity to present evidence as to the existence or non-existence of any justification or excuse for appellant’s failure to comply.

Decided October 23, 1987.

Morrie Serwitz, pro se.

John R. Shaw, Jr., for appellant.

Patti H. Bass, for appellee.

Judgment reversed and case remanded.

Banke, P. J., and Ben-ham, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    74598.
    LELAND INDUSTRIES, INC. v. SUNTEK INDUSTRIES, INC.
    (362 SE2d 441)
   Carley, Judge.

Appellant-defendant, a carpet manufacturer, purchased a large quantity of carpet yarn from appellee-plaintiff, a producer of such yarns. Appellant made partial payment of the purchase price. However,, after receiving numerous customer complaints concerning the quality of the carpet produced from the yarns, appellant refused to pay appellee the outstanding balance. Appellee filed suit against appellant seeking payment of the outstanding indebtedness plus interest and costs of collection. Appellant filed a counterclaim, alleging that appellee’s yarns were defective and seeking damages for breach of implied warranties.

In the pre-trial order, appellant “admitted] a prima facie case on behalf of [appellee] and [appellant] accepted] the burden of going forward with the evidence to establish the alleged set-off.” In that procedural posture, the case was apparently submitted for a bench trial on stipulated evidence. The trial court found that all implied warranties as to the carpet yarns had effectively been disclaimed and granted judgment in favor of appellee on a motion made pursuant to OCGA § 9-11-41 (b). Appellant appeals from the judgment entered by the trial court.

1. Appellant enumerates as error the judgment entered in favor of appellee, contending that the trial court incorrectly held that the implied warranties as to the yarn had been effectively disclaimed. Appellee asserts and the trial court found that the implied warranties had been disclaimed by language appearing on the face and reverse side of certain “Sales Confirmation” slips. On the face of these slips, the following appeared: “THIS CONFIRMATION IS GIVEN SUBJECT TO ALL OF THE TERMS AND CONDITIONS ON THE FACE AND REVERSE SIDES HEREOF, including the provisions for . . . exclusion of warranties. . . .” On the reverse side were numerous paragraphs setting forth the terms and conditions of the contract. Each of the paragraphs contained a specific heading in capital letters, followed by type-written language. Paragraph 4, which was of the same type and color as all the other paragraphs, provided: “WARRANTIES: Except as expressly stated on the face hereof, Seller makes no warranty express or implied, including without limitation as to: (a) fitness of the yarn purchased hereunder for any specific purpose or end use; (b) fastness of color or uniformity of shade from lot to lot; (c) breaking strength; (d) shrinkage; (e) yield; (f) absence of minor contamination; (g) physical or chemical qualities; and (h) usual or ordinary variation in thickness, size, or TPI of yarns. Seller shall not be liable for normal manufacturing defects nor for customary variations from specifications. Any yarns made in part or wholly of man-made fibers is sold subject to the inherent imperfections in such man-made fibers, including without limitations its potential for pilling or causing pilling.”

In the context of a sale which otherwise comes within the provisions of OCGA §§ 11-2-314 and 11-2-315, implied warranties of merchantability and of fitness for a particular purpose arise by operation of law. See Chrysler Corp. v. Wilson Plumbing Co., 132 Ga. App. 435, 437 (1) (208 SE2d 321) (1974). These implied warranties can, however, be disclaimed. OCGA § 11-2-316 (2) provides: “Subject to subsection (3) of this Code section, to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantábility and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that ‘There are no warranties which extend beyond the description on the face hereof.’ ”

Under OCGA § 11-2-316 (2), the writing relied upon by appellee would, regardless of its “conspicuousness,” be ineffective to disclaim the implied warranty of merchantability because that writing nowhere specifically mentions “merchantability.” It follows that the trial court erred insofar as it found that the implied warranty of merchantability as to the carpet yarn had been effectively disclaimed pursuant to OCGA § 11-2-316 (2). However, appellee’s writing would, if “conspicuous,” be an effective disclaimer of the implied warranty of fitness pursuant to OCGA § 11-2-316 (2). The writing provides that there are no warranties “[e]xcept as expressly stated on the face hereof. . . .” Accordingly, resolution of whether appellee’s writing constitutes an effective disclaimer of the implied warranty of fitness pursuant to OCGA § 11-2-316 (2) is dependent upon whether that writing is “conspicuous.”

OCGA § 11-1-201 (10) provides, in relevant part, as follows: “ ‘Conspicuous’: A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals ... is conspicuous. Language in the body of a form is ‘conspicuous’ if it is in larger or other contrasting type or color. . . . Whether a term or clause is ‘conspicuous’ or not is for decision by the court.” In appellee’s writing, the actual warranty disclaimer language itself was non-conspicuous. That disclaimer language was in exactly the same size and color type as the remainder of the contract. All that was conspicuous was certain introductory language, none of which actually related to warranty disclaimers. The conspicuous introductory language only provided: “THIS CONFIRMATION IS GIVEN SUBJECT TO ALL OF THE TERMS AND CONDITIONS ON THE FACE AND REVERSE SIDES HEREOF . . and, on the reverse side, “WARRANTIES: . . . .” OCGA § 11-2-316 (2) requires that the actual warranty disclaimer language itself be conspicuous. That requirement is not satisfied if the disclaimer provision contains only general introductory language which is conspicuous. “Several sellers have attempted to satisfy the conspicuousness requirement by printing only the heading of the combined express warranty and disclaimer clause in capital letters. When these headings have usually failed to disclose the true nature of the clause, the courts have denied effect to the disclaimer. . . . [If] the disclaimer [is] contained in a paragraph headed in capital letters as ‘WARRANTY and AGREEMENT’ . . . [and] the disclaimer language itself [is] printed in the same type size and face as the rest of the contractf,]” there is no effective disclaimer under OCGA § 11-2-316 (2). White & Summers, Handbook of the Law Under the Uniform Commercial Code, § 12-5, p. 443 (1980). It follows that the trial court erred in finding that there was a conspicuous and therefore effective disclaimer of the implied warranty of fitness pursuant to OCGA § 11-2-316 (2). Compare Harris v. Sulcus Computer Corp., 175 Ga. App. 140, 141 (3) (332 SE2d 660) (1985).

2. Both the implied warranties of merchantability and of fitness may also be disclaimed in writing pursuant to OCGA § 11-2-316 (3) (a), which provides: “Notwithstanding subsection (2) of this Code section: Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is,’ ‘with all faults,’ or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty. . . .” Appellee urges that its extensive and specific disclaimer provision constitutes “other language” under OCGA § 11-2-316 (3) (a), calling appellant’s attention to the exclusion of the implied warranties.

There is considerable doubt whether the “other language” referred to in OCGA § 11-2-316 (3) (a) incorporates the concept of a specific disclaimer provision. Arguably, the ambit of OCGA § 11-2-316 (3) (a) should be construed as limited merely to such other implied words of warranty disclaimer as are synonymous with “as is” or “with all faults,” whereas specific disclaimer provisions must comply with the requirements of OCGA § 11-2-316 (2). However, even assuming the applicability of OCGA § 11-2-316 (3) (a) to appellee’s specific disclaimer provision, that writing is nevertheless an ineffective disclaimer. Although, by its terms, OCGA § 11-2-316 (3) (a) does not explicitly require that the “other language” be conspicuous, it has been interpreted as implicitly imposing such a requirement. “To hold that the [‘other] language [’] need not be conspicuous would allow the implied warranties of fitness and merchantability to be annulled by implication by language less conspicuous than if they were directly eliminated, in which case the effort to eliminate them would have failed. [Cit.] The requirement that disclaimer terms must be conspicuous to be effective follows the main current of interpretation of [OCGA § 11-2-316 (3) (a)]. [Cits.]” White v. First Fed. Sav. &c. Assn. of Atlanta, 158 Ga. App. 373-374 (1) (280 SE2d 398) (1981). As has been discussed in Division 1, the actual disclaimer language in appellee’s writing is not conspicuous. It follows that, even assuming that the specific but non-conspicuous disclaimer language under consideration would qualify as “other language” within the meaning of OCGA § 11-2-316 (3) (a), the trial court erred in finding that it was effective to disclaim the implied warranties as to the carpet yarn.

3. The disclaimer language contained in appellee’s writing “is written in the same size and color type as all the other paragraphs of the ‘conditions’ on the back of the form. Therefore, while this was sufficient to exclude any express warranties on the part of [appellee], it fails completely to comply with [OCGA § 11-2-316] for excluding the warranties implied by law in [OCGA §§ 11-2-314 and 11-2-315].” Chrysler Corp. v. Wilson Plumbing Co., supra at 439 (2). The trial court erred in finding that appellee had effectively disclaimed any implied warranties which arose by operation of law as the result of its sale of the yarn to appellant and in entering judgment in favor of appellee on that basis.

Decided October 23, 1987.

J. Lane Bearden, for appellant.

Ronald S. Iddins, for appellee.

Judgment reversed.

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


text:
    74681.
    THE STATE v. WILLIS.
    (362 SE2d 444)
   Carley, Judge.

By way of accusation, appellee was charged with numerous traffic offenses, including two counts of driving under the influence in violation of OCGA § 40-6-391. Appellee filed a pre-trial motion to suppress the results of the State-administered test of the alcohol content of her blood and the trial court conducted a hearing on appellee’s motion.

At the hearing on the motion to suppress, there was undisputed evidence that appellee had agreed to submit to the State-administered blood test and that she had signed a written acknowledgment to that effect. That written acknowledgment contained the warning that her refusal to submit to the test would result in the suspension of her driver’s license “for a period of six/twelve months.” There was also undisputed evidence that appellee had been informed, verbally and in writing, of her right to an additional test and that she had initially made an election to undergo independent testing but had subsequently withdrawn her election and waived her right. Between appellee’s initial election to undergo independent testing and her subsequent waiver of that right, a colloquy, the substance of which was disputed, occurred between the officer and appellee. According to the officer’s version of that colloquy, he had merely asked appellee to tell him who it was that she wanted to conduct the additional testing, whereupon appellee had changed her own mind and had voluntarily elected to forego the additional test. According to appellee, however, the officer had made no such inquiry. Under appellee’s version of the colloquy, the officer had instead asked “why” she wanted to have the additional test and whether she was “sure” that she wanted to exercise her right to have that additional test. Appellee further testified that, had the officer not so questioned her initial election to have an additional test performed, she would not have waived her right to that testing.

On this evidence, the trial court initially denied appellee’s motion to suppress. Upon appellee’s motion for reconsideration, however, the trial court ordered suppression of the results of the State-administered test. The order granting appellee’s motion to suppress states, in relevant part, that the trial court found “from the evidence that [appellee] attempted to assert her right to an additional blood test but was confused and discouraged from doing so by the officer. Further, the officer’s testimony showed that he advised [appellee] that her license would be suspended for a period of six to twelve months. Under the circumstances of this case, [appellee’s] license could only be suspended for six months. The Court finds from the evidence that the possibility of coercion of [appellee] exists with respect to [her] right to an independent blood test.” (Emphasis supplied.) The State appeals from this order granting appellee’s motion to suppress.

1. That appellee had been informed that her refusal to submit to the State-administered test would result in a suspension of her driver’s license “for a period of six/twelve months” ,is a factor which should not have entered into the trial court’s determination whether to suppress the results of that test. The giving of such information to an arrestee does not, as a matter of law, unlawfully coerce his submission to the State-administered test. See Whittington v. State, 184 Ga. App. 282 (2) (361 SE2d 211) (1987). Accordingly, the trial court erred in relying upon this factor as a basis for granting appellee’s motion.

2. Appellee urges that the granting of her motion to suppress was nevertheless authorized based upon the trial court’s finding that, after she had elected to undergo additional testing, the arresting officer had “confused and discouraged [her] from doing so. . . .” Appellee contends that her ultimate waiver of the right to independent testing was coerced by the arresting officer’s questioning of her initial election to exercise that right. Thus, appellee urges that the grant of her motion to suppress the results of the State-administered test should be affirmed without regard to the trial court’s erroneous consideration of the “six/twelve months” factor.

It is unclear whether the trial court itself considered that appellee’s confusion and discouragement was an independent basis for its ruling or whether that confusion and discouragement was merely a cumulative factor which, only in conjunction with the “six/twelve months” factor, authorized its ultimate conclusion that the motion should be granted. Moreover, neither the evidentiary nor the legal basis for the trial court’s finding that the arresting officer had confused and discouraged appellee is clear. In seeking reconsideration of the denial of her motion, appellee had urged the trial court to accept the applicability of various legal theories to the evidence that had been produced in the hearing. One legal theory which was advanced by appellee was that, after an arrestee has elected to undergo additional testing, the arresting officer is legally precluded from engaging in any further inquiry whatsoever with regard to the election and that, rather than to ask who it was that appellee wanted to conduct the additional testing, the officer should merely have suggested possible arrangements to her for that testing. Under such a narrow interpretation of the permissible ambit of an arresting officer’s authority under the Implied Consent Law, appellee urged the trial court to hold that she had been subjected to unlawful confusion and discouragement from undergoing additional testing, even under the arresting officer’s own version of the colloquy. If the trial court’s ultimate finding that appellee had been confused and discouraged by the arresting officer represents its acceptance of this legal theory advanced by appellee, the grant of appellee’s motion was erroneous. It is the responsibility of the arrestee, not of the officer, to designate the specifics of the independent testing and the officer must be apprised by the arrestee of those specifics before the officer has a duty to facilitate the arrestee’s election. See generally Harper v. State, 164 Ga. App. 230 (1) (296 SE2d 782) (1982); Lovell v. State, 178 Ga. App. 366 (343 SE2d 414) (1986). Accordingly, any interpretation of the applicable statutory provisions as would preclude the arresting officer from engaging in any further inquiry with regard to the specifics of the arrestee’s election of an independent test must be rejected. Accepting the officer’s version of the colloquy between himself and appellee as true, appellee’s motion to suppress should have been denied rather than granted.

The remaining possibility is that the trial court’s conclusion that the officer had confused and discouraged appellee represents its acceptance of appellee’s version of the colloquy as true. If so, the trial court nevertheless failed to find that version of the colloquy had actually resulted in an unlawful coercion of appellee’s waiver of the right to undergo independent testing. The trial court ultimately found merely that “the possibility of coercion of [appellee] exist[ed] with respect to [her] right to an independent test.” (Emphasis supplied.) Appellee’s waiver of independent testing was either unlawfully coerced by the arresting officer’s colloquy or it was not and appellee’s version of the colloquy did not demand a finding of unlawful coerciveness. An arrest is, by its very nature, a coercive event and the arrestee’s own subjective interpretation of that event as exceeding the permissible limits of coerciveness is not controlling. Clearly, “the possibility of coercion” of an arrestee exists in every arrest and the mere fact that that possibility existed in this case is not a valid reason for suppressing the results of the State-administered test. Accordingly, even assuming without deciding that, under appellee’s version of the colloquy, the trial court was authorized to find the existence of such actual coercive confusion and discouragement as might otherwise warrant the grant of a motion to suppress, the order which grants appellee’s motion must nevertheless be reversed. The grant of a motion to suppress on the basis of the mere “possibility of coercion” rather than upon the actual existence of unlawful coercion is predicated upon an erroneous legal theory. “ [Although ordinarily a judgment right for any reason must be affirmed, where it is apparent that the court rests its judgment on reasons which are erroneous or upon an erroneous legal theory, it commits reversible error. [Cit.]” Sosbee v. State, 155 Ga. App. 196 (270 SE2d 367) (1980).

Decided October 23, 1987.

Patrick H. Head, Solicitor, Barbara M. Lassiter, Melodie Clayton, Assistant Solicitors, for appellant.

Roger J. Rozen, for appellee.

Judgment reversed.

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


author: Sognier, Judge. Beasley, Judge,

text:
    74490.
    TIBBS v. STUDEBAKER’S OF SAVANNAH, INC.
    (362 SE2d 377)
   Sognier, Judge.

Carolyn Tibbs brought suit against Janice Carter and Studebaker’s of Savannah, Inc. seeking damages for personal and property injuries incurred in an automobile collision between her and Carter. The trial court granted summary judgment in favor of Studebaker’s of Savannah and Tibbs appeals.

The record reveals that Carter arrived at appellee’s place of business between 7 and 7:30 p.m. on the night in question. Carter, who had consumed no food since the evening before, drank three or four scotch and waters as she discussed business and socialized with several fellow employees. When Carter left appellee’s establishment around 10:00 p.m., she was accompanied to her car by her son, who was employed by appellee as a doorman/disc jockey. In his deposition, he testified that Carter did not seem to have been drinking at all and appeared “fine.” Paul McBurney, an off-duty police officer who worked as a security officer for appellee on the night in question, stated in his affidavit that he spoke to Carter as she was leaving, that she spoke in a normal manner, walked with a normal gait, that there was no odor of alcohol on her breath and that she “displayed no signs of being intoxicated.” McBurney also stated that one of his duties when working at appellee’s was “to judge the condition of the customers leaving [appellee’s establishment] and to make sure that any persons who appear to be intoxicated do not drive.”

Carter was driving home from appellee’s establishment when her car collided virtually head-on with appellant’s vehicle. Carter asserts that water thrown up on her windshield by a truck in front of her, combined with the sudden hydroplaning of her vehicle on the wet road, sent her car out of control and was the cause of the accident. Appellant stated in her deposition she observed Carter’s vehicle swerve into her lane, return to the proper lane, then swerve back right into the path of her (appellant’s) car, causing the collision. Betty Bacon, who stopped to render assistance at the collision scene prior to the arrival of the police, stated she spoke with Carter, that Carter’s speech was slurred, that she had the odor of alcohol about her, and that Carter was “noticeably intoxicated.” The police officer who arrived first on the scene and who held Carter’s head while she was being extracted from her vehicle, stated that while positioned less than six inches from Carter’s face he had detected no odor of alcohol on her breath and observed no behavior inconsistent with that of someone suffering great pain from injuries. He stated that no request for a blood alcohol test was made by the investigating officers and neither party was cited for the accident, but that the police attributed the accident to the hazardous condition of the road. Also in the record, however, are the affidavits and deposition of staff members and the doctor who treated Carter at the hospital, which indicate Carter had a .23 percent blood alcohol reading two hours after the accident and that Carter was treated, in order of severity, for injury to her legs and for “acute alcoholic intoxication.”

Appellant contends the trial court erred by granting summary judgment in favor of appellee in that (a) a cause of action against appellee exists as a matter of law and (b) genuine issues of material fact remain as to that cause of action.

(a) “Under Sutter [v. Hutchings, 254 Ga. 194 (327 SE2d 716) (1985)], one who provides alcoholic beverages to a noticeably intoxicated person, knowing that the person will soon be driving a vehicle, may be liable for a third party’s injuries caused by the negligence of the intoxicated driver.” Southern Bell Tel. &c. Co. v. Altman, 183 Ga. App. 611, 612 (359 SE2d 385) (1987). We disagree with appellee that Sutter is not applicable to commercial establishments serving adults. Although Sutter involved a social host in a private home providing alcohol to an intoxicated minor, the Supreme Court applied statutes (OCGA §§ 3-3-22 and 3-3-23) which were enacted by the Legislature to apply to commercial purveyors of alcoholic beverages, i.e., “[t]he businesses of manufacturing, distributing, selling, handling, and otherwise dealing in or possessing alcoholic beverages. . . .” OCGA § 3-3-1. Southern Bell Tel. &c. Co., supra at 613. (Birdsong, Chief Judge, dissenting.) Neither the language employed nor the rationale of the decision restrict the holding in Sutter to social host situations involving minors. From OCGA § 3-3-22, the Supreme Court acknowledged the existence of a duty upon the provider of alcohol “to stop serving alcohol to the driver who is noticeably intoxicated (or share the intoxicated driver’s liability to injured third persons).” 254 Ga. at 197 (4). Pursuant to the language of OCGA § 51-1-6 authorizing an injured party to recover for damages suffered as a result of a breach of a duty, the Supreme Court determined a cause of action exists for the breach of the duty under OCGA § 3-3-22. Since OCGA § 3-3-22 was enacted specifically to apply to commercial establishments providing alcohol to “any person who is in a state of noticeable intoxication,” we agree with appellant that the cause of action found to exist in Sutter is not limited to social host situations involving minors. See Southern Bell Tel. &c. Co., supra.

(b) We agree with appellant that a genuine issue of material fact exists whether Carter was noticeably intoxicated at the time she left appellee’s establishment. It is uncontroverted that Carter consumed alcohol at appellee’s establishment and that appellee, through its agents, knew Carter would be driving a vehicle. Although there is no evidence indicating Carter was noticeably intoxicated at the time she left appellee’s establishment, Carter stated in answers to interrogatories that she consumed no alcohol in the 15-minute interval between departing appellee’s establishment and colliding with appellant’s vehicle, and appellant introduced evidence that Carter was “noticeably intoxicated” at the scene of the accident. We find this evidence sufficient to create a reasonable inference that Carter was noticeably intoxicated at the time she departed appellee’s establishment, see Brumbelow v. Shoney’s Big Boy, 174 Ga. App. 160 (329 SE2d 319) (1985), which thus conflicted with the evidence presented by appellee. Accordingly, summary judgment was improperly granted in favor of appellee.

Judgment reversed.

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

Beasley, Judge,

concurring specially.

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

Plaintiff alleges that Studebaker’s was negligent in two respects, breaching two separate duties: serving alcoholic beverages to a noticeably intoxicated patron; allowing a noticeably intoxicated person to drive away from the premises. The fourth enumeration of error is: “Whether Sutter v. Hutchings should be extended to place a legal duty and responsibility upon Appellee to prevent the ‘noticeably intoxicated’ driver from driving away from its establishment, regardless of whether or not Appellee knowingly continued to serve alcoholic beverages to that ‘noticeably intoxicated’ person in violation of OCGA § 3-3-22.”

In section (a) of the opinion, which discusses whether a legal cause of action exists, we say that a cause does exist against one who serves a noticeably intoxicated person. We do not mention the other asserted duty.

Decided September 8, 1987

Rehearing denied October 26, 1987

Marshall R. Wood, for appellant.

Dana F. Braun, Shari M. Sigman, Leesa A. Bohler, for appellee.

In section (b) of the opinion, which discusses whether there are issues of fact as to the cause of action, we say there are, with respect to whether the patron was noticeably intoxicated at the time she left. This does not address whether she was noticeably intoxicated at the time she was served the last drink, which is what we recognize as constituting the cause of action because it involves the statutory duty not to provide alcoholic beverages to one who is noticeably intoxicated and intends to drive. A person may not be noticeably intoxicated when served the last drink but, after its consumption and the effects of its consumption occur, become noticeably intoxicated.

OCGA § 3-3-22 imposes a duty to refrain from providing alcoholic beverages to a noticeably intoxicated person, but no statute imposes a duty to prevent a noticeably intoxicated person from driving away from the provider’s place. I acknowledge that a jury could find that it arises from the circumstances, given the duties owed by a proprietor to an invitee and derivative duties owed to third persons, and in this regard also, the movant for summary judgment has not established its non-liability.


author: Sognier, Judge.

text:
    74796.
    EATON v. THE STATE.
    (362 SE2d 375)
   Sognier, Judge.

Appellant was convicted of child molestation by performing an indecent act in the presence of a child under the age of fourteen years with intent to arouse his sexual desires, and he appeals.

1. Appellant asserts error by the court in allowing the victim’s parents and two police officers to testify as to what the victim told them about the incident resulting in appellant’s conviction. He argues that such testimony was inadmissible hearsay.

The victim, a twelve-year-old girl, testified that she returned home from school about 3:30 p.m. and went to her bedroom to do her homework. As she was cleaning off her desk appellant, who lived next door, came from behind his car, unzipped and opened his pants, and was holding something near his private parts. He had waved his arm to get the victim’s attention before taking these actions, as her desk was directly in front of her bedroom window. The victim, whose parents were both at work, ran into her closet because she was “scared”; she then decided to call Diane Aull, a neighbor across the street who was taking care of the victim’s younger brother. When the victim came out of the closet and went to the telephone on her desk, appellant again waved at her, and on this occasion appellant was bouncing his “ding-dong” back, up and down. The victim called Ms. Aull and went to her home, where the victim called her mother and told her what had happened; the mother called the police and then departed for home. Before she arrived home the victim’s father returned from work and the victim told him what had happened. When the victim’s mother arrived home the victim repeated her story to both parents; a police officer arrived and the victim related the same story to him. Two days later the victim told a detective the same story.

After the victim testified to the facts related above, both her parents, the police officer and the detective were allowed to testify, over objection, as to what the victim had told them about the details of the incident. Appellant argues that their testimony was improperly admitted.

We find that the court properly admitted the parents’ testimony complained of because it falls within the res gestae exception to the hearsay rule. Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, are admissible in evidence as part of the res gestae. OCGA § 24-3-3. No specific time can be fixed as to when the res gestae ends, as each case depends upon its own circumstances. Brantley v. State, 177 Ga. App. 13, 15 (2) (338 SE2d 694) (1985). The victim here called her mother within minutes of the incident, and related the same information to both of her parents as soon as they arrived home. Under such circumstances, we find the victim’s statements to her parents were part of the res gestae and admissible in evidence. See, e.g., Ruff v. State, 132 Ga. App. 568 (2) (208 SE2d 581) (1974); Smith v. State, 144 Ga. App. 579 (1) (241 SE2d 465) (1978). In regard to testimony by the police officer and detective as to what the victim told them, even if the victim’s statements to the officers were not part of the res gestae they were merely cumulative, and failure to exclude their testimony would not constitute reversible error. Lively v. State, 157 Ga. App. 419, 420 (4) (278 SE2d 67) (1981).

2. Appellant contends the trial court erred by denying his motion for a mistrial after the State improperly placed appellant’s character in issue. This issue arose when the victim’s mother testified that her daughter called her at work and said, “Mommy, Robert [appellant] did it again.” Appellant’s motion for a mistrial was denied and the court instructed the jury to disregard the statement, and not to consider it for any purpose whatever. The court also told the jurors it was absolutely necessary that they be able to put the statement from their mind. The court then asked if there was any juror, including the alternate, who could not put the statement out of his/her mind and could not disregard the statement. No juror indicated an inability to comply with the court’s instruction. Appellant’s motion was then renewed and again denied by the court. Appellant argues that the sole apparent purpose of the testimony was to place appellant’s character in issue, and thus, constituted reversible error. We do not agree.

Decided October 14, 1987

Rehearing denied October 26, 1987.

Joseph M. Todd, for appellant.

. Robert E. Keller, District Attorney, Deborah C. Benefield, Assistant District Attorney, for appellee.

Granting or refusing a motion for mistrial is a matter largely within the discretion of the trial judge, and such discretion will not be interfered with unless it is apparent that a mistrial is essential to preserving the right to a fair trial. Ladson v. State, 248 Ga. 470, 478 (12) (285 SE2d 508) (1981). “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 the consideration of the jury under proper instructions.” Stanley v. State, 250 Ga. 3, 4 (2) (295 SE2d 315) (1982). In the instant case the trial judge not only acted immediately to exclude the testimony from consideration, but he also questioned the jurors to make certain that they could put the statement of the witness out of their minds and disregard it completely. Under such circumstances, we find no abuse of discretion in denial of appellant’s motion for a mistrial.

3. Appellant alleges error in denial of his motion for a directed verdict of acquittal. He argues that he was charged with committing the offense “with intent to arouse his sexual desires,” and the State presented no evidence to show such intent. Intent is a question for the jury, Cade v. State, 180 Ga. App. 314, 316 (3) (348 SE2d 769) (1986), and there was some evidence (other than the victim’s testimony) indicating that appellant was masturbating in front of the victim, which is sufficient evidence of intent to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Hence, it was not error to deny appellant’s motion for a directed verdict of acquittal. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984).

Judgment affirmed.

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


text:
    74976.
    SHEPHERD et al. v. HOLMES.
    (362 SE2d 396)
   Sognier, Judge.

Robert and Sandra Shepherd brought suit for negligence and loss of consortium, respectively, against Lynn Holmes and Wal-Mart Stores, Inc. for injuries incurred following Robert Shepherd’s fall in a store leased by Wal-Mart from Holmes. The trial court denied WalMart’s motion for summary judgment, which ruling was not appealed, and granted Holmes’ motion for summary judgment. The Shepherds appeal.

The record reveals that the roof of the Wal-Mart store in question here had outlived its useful life with the result that leaks appeared in the ceiling of the interior of the building. Due to the makeshift nature of appellee’s repairs, leak after leak appeared until WalMart had to threaten appellee with its right to “repair and deduct” in order to obtain a satisfactory resolution of the roof problem. However, the new roof had not yet been installed on the day appellant Robert Shepherd visited the automotive section at the rear of the Wal-Mart store. Shepherd slipped in an aisle within arm’s reach of a large (30 or 32 gallon) brown plastic garbage container, which had been placed in the aisle by employees of Wal-Mart to catch the water dripping from two overhead leaks. Shepherd grabbed at the garbage can, which was half filled with water, in an attempt to break his fall, but succeeded only in spilling the contents of the container all over the aisle. The evidence was uncontroverted that the ceiling in the area of Shepherd’s fall had been leaking for roughly three weeks, and that the garbage container had been under those particular leaks for two or three days at the time of Shepherd’s fall. Leroy McCoy, of Wal-Mart’s janitorial department, stated in his deposition that not all of the water leaking from the ceiling always dripped into the garbage container and that on the morning of Shepherd’s fall, water had accumulated around the base of the garbage container. McCoy stated he mopped up the water at that time and moved the container in order to compensate for the change in the location of the drip. However, his testimony was equivocal whether he returned to check the container at any point between his 8:00 a.m. mopping and Shepherd’s fall at 10:30-11:00 a.m.

1. Appellants contend the trial court erred by granting summary judgment to appellee on the basis that appellee owed no duty to appellants and had no control over the events occurring inside the store. OCGA § 44-7-14 provides: “Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.” “ ‘A landlord is liable to one lawfully present on the rented premises, by invitation of the tenant, for injuries arising from defective construction, or from failure to keep the premises in repair, when the defect is known to the landlord or in the exercise of reasonable diligence could have been known, and the injured person was himself in the exercise of due care.’ [Cit.]” Yates v. Crumbley, 116 Ga. App. 366, 368 (157 SE2d 295) (1967). Although appellee argues that Wal-Mart’s failure to follow its usual precautionary procedures to warn customers of leaks (such as signs or ropes) constituted an “intervening cause” absolving appellee from all liability, the “evidence does not demand a finding that [Wal-Mart’s] negligence, if any, was the sole cause of [appellants’] injur [ies], as it must, in order to release [appellee] landlord of all liability arising from his failure to repair the defect.” Carter v. Brannon, 122 Ga. App. 812, 813 (2) (178 SE2d 755) (1970). It follows that appellee was not entitled to judgment as a matter of law and the trial court erred by granting summary judgment in favor of appellee. Id.

2. Appellee argues we should nevertheless affirm the trial court’s grant of summary judgment to him because appellants have failed to show the presence of a “foreign substance” on the floor to explain the fall, the basis for the trial court’s denial of summary judgment to appellee’s co-defendant. Robert Shepherd did not see a foreign substance on the aisle floor prior to his fall. During his fall, Shepherd tipped over the contents of the half-filled 30-gallon garbage pail. Due to the nature of water and the inadequacies of the unassisted human eye, it was thereafter impossible to determine whether any particular amounts of water in the aisle had been present prior to Shepherd’s fall.

Although proof of nothing more than the occurrence of a fall is insufficient to establish negligence, see Roberts v. Gardens Svcs., 182 Ga. App. 573, 574 (356 SE2d 669) (1987), this is not a case in which “pure supposition” provides the only indication as to how the fall occurred. Compare Kenny v. M & M Supermarket, 183 Ga. App. 225 (358 SE2d 641) (1987). Here, construing the evidence in favor of the non-movants, there is evidence that the water dripping from the ceiling over the site of Shepherd’s fall did not always fall into the garbage container but frequently accumulated in the area around the container, requiring mopping, and that this particular leak had required mopping two to three hours before Shepherd’s fall, yet was not checked by the janitorial staff in that three-hour interim. We agree with the trial court that this circumstantial evidence raised a reasonable inference, unrebutted by positive evidence, that Shepherd slipped on water which had dripped onto the floor rather than into the garbage container. We further agree with the trial court that a genuine issue of material fact remains as to whether the history of leaking roof problems is sufficient to confer upon defendants constructive superior knowledge that water had accumulated on the aisle floor during the three hour “unmopped” period before Shepherd’s fall. See Harmon v. Cova, 180 Ga. App. 805, 806 (350 SE2d 774) (1986). Thus, we find no merit in appellee’s argument that the trial court’s holding in regard to this issue provides an alternative basis for affirming the trial court’s erroneous grant of summary judgment to him.

Decided October 6, 1987

Rehearing denied October 26, 1987

Cliff C. Perkins, for appellants.

Henry E. Scrudder, Jr., Thomas E. Greer, for appellee.

Judgment reversed.

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


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    74423.
    VARGAS v. THE STATE.
    (362 SE2d 461)
   McMurray, Presiding Judge.

Defendant appeals his conviction of three counts of the offense of aggravated child molestation. Held:

1. At trial, defense counsel sought to elicit testimony from the victim on cross-examination and to introduce documentary evidence for the purpose of establishing the victim’s ideas and bent of mind about sexual activity so as to explain her allegations against defendant as a fabrication derived from “the phase she’s in.” The trial court did not allow the admission of this evidence and defendant enumerates as error the exclusion of the documentary evidence, several letters authored by the victim discussing boys and sexual activities.

Generally, in a child molestation case evidence as to the victim’s reputation for nonchastity is not admissible. Lively v. State, 157 Ga. App. 419 (3) (278 SE2d 67). Nor may evidence be admitted to discredit the victim by showing her preoccupation with sex. Decker v. State, 139 Ga. App. 707 (2), 708 (2) (229 SE2d 520). See Chastain v. State, 180 Ga. App. 312 (2) (349 SE2d 6), affirmed 257 Ga. 54 (354 SE2d 421). This enumeration of error is without merit.

2. Defendant contends the trial court erred in permitting two witnesses to testify concerning an outcry made by the victim some four months after the last incident of child molestation. The evidence at issue was properly admitted under both the rule stated in Cuzzort v. State, 254 Ga. 745 (334 SE2d 661), and under OCGA § 24-3-16. While the outcry occurred prior to the effective date of OCGA § 24-3-16, the determinative date as to the applicability of OCGA § 24-3-16 was the date of trial. Accord Williams v. State, 180 Ga. App. 562 (1), 564 (349 SE2d 797).

Decided October 26, 1987.

Jeffrey R. Sliz, for appellant.

Thomas C. Lawler III, District Attorney, Phil Wiley, Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur fully in Division 1. I concur in Division 2 but for the reason that OCGA § 24-3-16 authorized the admission of the evidence. The citation to Williams v. State, 180 Ga. App. 562 (1) (349 SE2d 797) (1986) brings into play another exception to the hearsay rule, i.e., res gestae. That would not be applicable here, where the report of the incident was not contemporaneous and thus not generally regarded as an “outcry.” Instead, the report consisted of statements made some four months after the incident, when it could not be said to be “free from all suspicion of device or afterthought.” OCGA § 24-3-3; Taylor v. State, 176 Ga. App. 567, 573 (4) (b) (336 SE2d 832) (1985).


author: McMurray, Presiding Judge.

text:
    74576.
    WILSON v. CITY OF ATLANTA et al.
    (362 SE2d 460)
   McMurray, Presiding Judge.

Plaintiff Donald P. Wilson filed an action against the City of Atlanta and R. N. Owen, T. A. Sturgis, J. L. Stroud, F. D. Echols, E. A. Bell and Morris Redding, and on March 7, 1986, the trial court granted the defendant individuals’ motion to dismiss for insufficiency of service of process. Subsequently, on October 6, 1986, the trial court granted the City of Atlanta’s motion to dismiss based on plaintiff’s failure to comply with Georgia’s ante-litem notice statute, OCGA § 36-33-5. Plaintiff appeals. Held:

In two enumerations of error, plaintiff contends that he had no notice of the defendant individuals’ motion to dismiss or the City of Atlanta’s motion to dismiss. A review of the record reveals no point at which plaintiff raised these issues. “ ‘Enumerations of error which raise questions for the first time on appeal present nothing for decision. (Cits.)’ Green v. State, 170 Ga. App. 806-807 (318 SE2d 513) (1984).” Lane v. State, 180 Ga. App. 168, 169 (4) (348 SE2d 711). In any event, the record shows without contradiction that plaintiff was served by mail with notice of both defendants’ and the City of Atlanta’s motions to dismiss pursuant to OCGA § 9-11-5 (b). See Allen v. Bd. of Tax Assessors of Paulding County, 247 Ga. 568 (277 SE2d 660). Consequently, plaintiff’s enumerations of error are without merit.

Decided October 26, 1987.

Donald P. Wilson, pro se.

Marva Jones Brooks, Robin S. Phillips, W. Roy Mays III, Jo Avery Crowder, for appellees.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    74603.
    EATON v. THE STATE.
    (362 SE2d 455)
   McMurray, Presiding Judge.

Defendant Eaton was indicted, with Robert Adkinson, Jr., in two counts for aggravated assault and armed robbery. The following evidence, construed most favorably to support the jury’s verdict, was adduced at defendant Eaton’s separate trial: During the evening of August 30, 1986, the victim, who was then 16 years of age, became acquainted with defendant and Adkinson while visiting at a neighbor’s home. After midnight, the victim agreed to drive defendant and Adkinson home in his father’s “1983 Dodge van.” While en route, the victim stopped at “a vacant lot on the King’s Camp Road” in Carters-ville, Georgia to “use the bathroom.” After the victim exited the van, defendant and Adkinson attacked him, knocked him to the ground and began “hitting [him] with their fists ...” Adkinson stabbed the victim in the chest with a “knife or some sharp object ...” during the struggle. Defendant and Adkinson then fled to the van. The victim “tried to crawl off and hide somewhere.” A few moments later, however, defendant and Adkinson returned, discovered the victim “[a]bout twenty feet” from the van, “kicked” him and demanded that he give them the keys to his father’s van. During this encounter, Adkinson placed a “knife” to the victim’s throat and threatened to “kill” him if he did not comply with their demands. Adkinson then began “sawing on [the victim’s] throat.”

During the second assault, one of the assailants took the victim’s wallet and the van keys from the victim’s pants pocket. Defendant and Adkinson then fled in the van, abandoning the victim at the “vacant lot.”

Defendant was found not guilty of aggravated assault and guilty of armed robbery. This appeal is from the denial of defendant’s motion for new trial. Held:

1. In his first enumeration of error defendant contends the trial court erred in failing to grant his motion for directed verdict of acquittal, arguing that he could not be found guilty of armed robbery because the evidence showed that he had “equal possessory rights” to the vehicle which was the subject of the crime. Defendant contends the State’s evidence “arguably shows that the three young men [victim, defendant Eaton and Adkinson] acted together in taking the automobile without any permission, from its rightful owner [victim’s father]. Therefore, possession of the automobile is arguably obtained at that time by all three, at least as to each other .... It is arguable, therefore, that if robbery is a crime against possession then in the facts of our present case, if [defendant Eaton, Adkinson and the victim] acted together in the initial taking of the automobile from its true owner, then each would have equal possessory rights, albeit none of them lawful, and the automobile could not be the subject of a future robbery of one of the three against the other.” This argument is without merit.

Defendant was indicted for taking, in the alleged armed robbery, “a 1983 Dodge motor vehicle van . . . and a man’s wallet, the property of [the victim].” Pretermitting the issue regarding defendant’s “equal possessory rights” to the van, the evidence adduced at trial showed that defendant, acting in concert with his confederate Adkinson, took the victim’s wallet, using an offensive weapon, with the intent to commit theft. See OCGA § 16-8-41 (a) and OCGA § 16-2-20. This evidence was more than sufficient to authorize the jury’s finding that defendant was guilty, beyond a reasonable doubt, of armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Graves v. State, 180 Ga. App. 446 (1) (349 SE2d 519).

2. Next, defendant contends the jury returned inconsistent verdicts. We do not agree.

Count 1 of the indictment was for aggravated assault and alleged that defendant and co-defendant Adkinson assaulted the victim “with a knife, a deadly weapon ... by stabbing said person in the chest area with said knife. . . .” Count 2 of the indictment was for armed robbery and alleged that defendant and co-defendant Adkinson, “with the intent to commit theft, did take a 1983 Dodge motor vehicle van . . . and a man’s wallet. . . from the immediate presence of [the victim] by use of a knife, an offensive weapon, by cutting the throat of [the victim] with said knife . . .”

At trial, separate facts were presented to prove each crime. More specifically, the victim testified that he was attacked twice by defendant and Adkinson. The first attack resulted in the victim receiving wounds to the chest. The second attack resulted in the victim’s throat being cut and the loss of the victim’s wallet and his father’s van. Consequently, the alleged aggravated assault was completed when defendant and Adkinson returned to the victim for the keys to the van. It was the second encounter that authorized the jury to find the requisite elements of the crime, armed robbery. See Miller v. State, 174 Ga. App. 42, 44 (5) (329 SE2d 252). This enumeration of error is without merit.

Decided October 26, 1987.

Daniel R. Deems, for appellant.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    74721.
    JONES v. THE STATE.
    (362 SE2d 457)
   McMurray, Presiding Judge.

Defendant was convicted of the offense of armed robbery and appeals from the denial of his motion for new trial. Held:

In his sole enumeration of error defendant contends the trial court erred in denying his motion to suppress the two victims’ “pretrial” and “in court” identification of him. Defendant argues that the victims had seen him under circumstances which were impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

Shortly after the robbery, the victims contacted the Norcross Police Department and from a description of the assailants given by the victims, Officer James E. Williams, who is familiar with the residents of the area, suspected that defendant was involved in the crime. Officer Williams went to the house where defendant resided and returned to the police station with defendant. Defendant was placed in “the booking room” with a man who matched the description of defendant’s confederate. The victims viewed the men through a “two-way mirror” and both victims independently identified defendant as the man who initially forced them at gunpoint to drive to the abandoned building. Neither of the victims identified the man who matched the description of defendant’s accomplice. “The test of whether there has been a ‘very substantial’ chance of misidentification depends on the totality of the circumstances in each case. See Yancey v. State, 232 Ga. 167 (205 SE2d 282). ‘(T)he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.’ Neil v. Biggers, 409 U. S. 188, 199 (93 SC 375, 34 LE2d 401). See Hicks v. State, 167 Ga. App. 771, 773 (1) (307 SE2d 548).” Heard v. State, 170 Ga. App. 130, 133 (8) (316 SE2d 504).

Decided October 26, 1987.

J. Stanley Rhymer, for appellant.

Thomas C. Lawler III, District Attorney, Daniel J. Porter, Assistant District Attorney, for appellee.

In the case sub judice, the victims independently identified defendant at the police identification procedure as the assailant who approached the vehicle in which they were passengers on the day of the armed robbery. The in-custody identification procedure occurred within two and one-half hours of the crime. During the commission of the crime, both victims viewed their initial assailant several times on a “[cjlear” afternoon at distances which varied from a few feet to a few yards. The victims gave a detailed identification of their assailant and both victims were certain that the man who confronted them at the intersection was defendant. In fact, at the police custody identification procedure, at the motion to suppress hearing and at trial neither victim wavered in their conviction that defendant was the man who robbed them. “Under the ‘totality of circumstances’ test the [victims’ pretrial and] in court identification of the defendant were not impermissibly tainted. Compare Arnold v. State, 155 Ga. App. 782 (1) (272 SE2d 751).” Heard v. State, 170 Ga. App. 130, 133 (8), 134, supra. This enumeration of error is without merit.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    74783.
    LAY v. THE STATE.
    (362 SE2d 458)
   McMurray, Presiding Judge.

Defendant Lay was charged by accusation, along with codefendant Jackson, with the offense of theft by shoplifting. A jury trial was waived and defendant was tried separately before the trial court. The trial court found defendant Lay guilty and she appeals. Held:

1. Defendant contends the evidence at trial was not sufficient to authorize her conviction. The State’s evidence shows that defendant and Jackson were observed by a security employee while shopping in a Wal-Mart store. When the security employee walked past the two ladies he noted that the items in their shopping cart included two cassette tapes and a utility knife broken out of the pack. Defendant was holding onto the handle of the shopping cart while Jackson was standing beside it. The security employee, after positioning himself to further observe the two ladies, observed Jackson bending over the shopping cart and begin using the utility knife to cut the plastic containers which held the cassette tapes. During this time defendant was still standing with her hands on the shopping cart. The two ladies stayed together as they moved over two aisles and down an aisle. Jackson finished cutting open the tapes and put them in her pocketbook. During the time that Jackson was cutting open the packages containing the cassette tapes defendant was standing there watching, “[s]he would watch [Jackson], then she would look around to see if anybody was looking.” The two ladies went through a check-out line and purchased items other than the concealed cassette tapes, then left the store. The ladies were stopped by the security employee outside the front door of the store and they agreed to go back into the store. As the two ladies, along with store employees, were walking through the store to an office Jackson was observed removing the cassette tapes from her pocketbook.

Defendant argues that none of this evidence shows that she was a party to the crime. However, presence, companionship, and conduct before, during and after the offense are circumstances from which the trier of fact could determine that defendant was a participant. See Jones v. State, 242 Ga. 893 (1) (252 SE2d 394). A person who acts as a “look-out” during the commission of a crime is participating in the commission of that crime. DeLoach v. State, 142 Ga. App. 666 (1) (236 SE2d 904). “The weight of the evidence and credibility of witnesses are questions for the jury. Bryant v. State, 174 Ga. App. 468 (1) (330 SE2d 406) (1985). Whether a defendant’s explanation supplies a reasonable hypothesis other than that of the defendant’s guilt is a jury question. White v. State, 253 Ga. 106, 107 (1) (317 SE2d 196) (1984). If a jury is authorized to find that the evidence, although circumstantial, is sufficient to exclude every reasonable hypothesis save that of guilt, the verdict of the jury will not be disturbed by the appellate court unless it is insupportable as a matter of law. Bowen v. State, 173 Ga. App. 361 (1) (326 SE2d 525) (1985). The verdict here is not insupportable as a matter of law and the evidence is sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).” Soltow v. State, 182 Ga. App. 716 (2), 717 (356 SE2d 750). This enumeration of error is without merit.

2. Relying upon the best evidence rule, defendant contends the trial court erred in admitting a photograph of the cassette tapes that were stolen, in place of the original evidence. However, the best evidence rule (or as it is also known, the original document rule) does not require that chattels be introduced in evidence. The trial court did not err in admitting the photograph over the objection it was not the best evidence. Nor did the State fail to properly identify the photographs and present a proper foundation for its admission into evidence. Hill v. State, 221 Ga. 65, 67 (7) (142 SE2d 909). Also see generally Johnson v. State, 177 Ga. App. 705, 706 (2) (340 SE2d 662).

Decided October 26, 1987.

Wade C. Hoyt III, for appellant.

Stephen F. Lanier, District Attorney, Danny W. Crabbe, Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I agree with the opinion except I question the relevancy of the principle for which Bowen v. State, 173 Ga. App. 361 (1) (326 SE2d 525) (1985) is cited. The evidence in this case is not solely circumstantial, for a witness directly observed defendant committing the crime by her participation as a party. Thus the. more stringent standard to be applied in measuring the sufficiency of the evidence in circumstantial cases, OCGA § 24-4-6, does not apply. Whittington v. State, 252 Ga. 168, 176 (7) (313 SE2d 73) (1984); Fuller v. State, 166 Ga. App. 734, 735 (2) (305 SE2d 463) (1983).

I point this out because I fear that its inclusion in the opinion might be misinterpreted and brought to bear in cases in which there was at least some direct evidence. I recognize that Bowen was not clearly a solely circumstantial evidence case, but the case on which it relies for the proposition, Dowdy v. State, 150 Ga. App. 137, 139 (257 SE2d 41) (1979), was.


author: Beasley, Judge.

text:
    74619.
    RUSSELL v. THE STATE.
    (362 SE2d 392)
   Beasley, Judge.

Russell, convicted by a jury of armed robbery (OCGA § 16-8-41 (a)) and possession of cocaine with intent to distribute (OCGA § 16-13-30 (b)), appeals.

1. The victim was robbed by three men of his car, jewelry, and other items on August 31, 1985. Defendant drove the car away. Four months later, on December 26, defendant was seen in the car and arrested while in possession of 28 packages of cocaine.

Defendant did not testify at his trial. During closing argument, the prosecutor stated “He [the victim] told you from the stand that that was the man who robbed him and that he was positive. He [defendant] was caught in the car. What explanation have you heard? None, because there is none. ...” Defendant objected to this argument as “improper” and requested a mistrial.

Denial of his motion for new trial on this ground is claimed as error, defendant citing OCGA § 17-7-28. That section, however, applies only to one’s right not to testify in pretrial hearings. The argument will instead be considered under OCGA § 24-9-20, which applies to trials: “. . . The failure of a defendant to testify shall create no presumption against him, and no comment shall be made because of such failure. . . .”

As pointed out by appellant, in order to reverse for an improper comment the reviewing court must find one of two things: “ ‘the prosecutor’s manifest intention was to comment upon the accused’s failure to testify’ or that the remark was ‘of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ [Cits.]” Ranger v. State, 249 Ga. 315, 319 (3) (290 SE2d 63) (1982); Lowe v. State, 253 Ga. 308 (1) (319 SE2d 834) (1984).

It is not error for a prosecutor to note the defense’s failure to present any evidence to rebut the proof adduced by the state. Ayers v. State, 181 Ga. App. 244, 253 (5 (g)) (351 SE2d 692) (1986); Hutchinson v. State, 179 Ga. App. 485 (347 SE2d 315) (1986); Smith v. State, 170 Ga. App. 673 (317 SE2d 626) (1984). In considering any objected to remark, its context should be considered. Hall v. State, 176 Ga. App. 428 (3) (336 SE2d 291) (1985).

Here, the prosecutor had reviewed the victim’s testimony concerning the theft, his positive identification of the defendant, and the defendant’s possession of the car. In asking what explanation of this incriminating evidence the jury had heard, the prosecutor embraced any possible source for an explanation of the identification and of defendant’s possession of the car, such as impeachment of the victim, testimony by the defendant’s passenger on the night of his arrest, or an alibi offered by others. Also, defendant stated upon arrest, as testified to by an officer, that he was leasing the car and later that he was in the process of buying it. The lender or seller was also a possible source of explanation. The prosecutor by his query did not target defendant. Commenting on the deficiencies in the defense does not always constitute a forbidden comment on the defendant’s failure to testify, as a defendant’s testimony is not a sine qua non of a defense. In light of the broader context covered by the rhetorical query and self-given response, we do not find that the manifest intention of the prosecutor was to comment on defendant’s failure to testify. Ranger v. State, supra at 319. Nor was the comment such that the jury would naturally and necessarily take it as a comment on defendant’s failure to testify. Lowe v. State, supra at 310.

Considering the nature and context of this portion of the argument, the court did not abuse its discretion in denying the motion for mistrial and the motion for new trial, inasmuch as neither was mandated.

2. Prior to the victim’s testimony, the court conducted a jury-absent hearing to make the determination required by Neil v. Biggers, 409 U. S. 188 (93 S.C 375, 34 LE2d 401) (1972) and Simmons v. United States, 390 U. S. 377 (88 SC 967, 19 LE2d 1247) (1968), prompted by defendant’s motion to suppress identification by the victim.

After receiving evidence and argument, the court found the photo spread proper and denied defendant’s motion to exclude in-court identification. The victim then testified to the jury and identified defendant as one of his three robbers. Counsel for defendant requested that he then be allowed to interrupt the state’s direct examination of the witness so he could “cross-examine him at this point in time without his . . . about his attending line-ups and things of that nature at this time.” The court ruled that he could not, stating that “[w]e’ve gone into that out of the presence of the jury and determined this course of evidence is admissible for the jury to determine its weight and credit and you will have the opportunity to cross-examine him in regard to his testimony.” Counsel then objected to any in-court identification, in reply to which the court stated “you stated that objection and we took that up out of the presence of the jury and it has been ruled admissible. The jury will simply receive it and establish their weight and credit whether it’s believable or whatever and you will have the opportunity to cross-examine him on it. It’s already been ruled on.” Defendant moved for a mistrial on the ground that the court’s statement that the evidence was admissible gave undue credibility to the state’s case and bolstered the witness’ credibility in violation of OCGA § 17-8-57. Failure to grant this motion is claimed as error.

While a court may not express an opinion as to what has or has not been proven, OCGA § 17-8-57, remarks made by the court regarding the admissibility of evidence or explaining the court’s rulings are not such a comment or opinion. Johnson v. State, 246 Ga. 126, 128 (269 SE2d 18) (1980); Mathis v. State, 171 Ga. App. 620 (320 SE2d 861) (1984); Stone v. State, 170 Ga. App. 234 (2) (316 SE2d 836) (1984). Here the court confined its response to the defendant’s request to allow interruption of direct examination to a denial of the request with the explanation that the legal issue of admissibility of the victim’s in-court identification had already been ruled on. Then the court affirmed for the jury that the weight and credit to be given such testimony would be for it to determine.

Decided October 5, 1987

Rehearing denied October 27, 1987

John T. Chason, Drew R. Dubrin, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, John M. Turner, Jr., Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., concurs. Sognier, J., concurs in judgment only.


text:
    74958.
    CHATHAM COUNTY HOSPITAL AUTHORITY et al. v. ROSS.
    (362 SE2d 390)
   Sognier, Judge.

Herbert Charles Ross brought a medical malpractice action against Dr. Herman Delaney and the Chatham County Hospital Authority, d/b/a Memorial Medical Center, alleging that an instrument had been left in his abdomen during a surgical procedure. While granting partial summary judgment in favor of the hospital on another issue, the trial court denied partial summary judgment to the hospital on the issue of its liability to Ross under the “borrowed servant” doctrine. We granted the hospital’s application for interlocutory appeal of that ruling.

The record reveals that assisting Dr. Delaney during the operation were two members of the hospital’s house staff as well as several nurses who were hospital employees. It is uncontroverted that although Dr. Delaney had privileges at Memorial Medical Center, he was not a hospital employee.

1. Appellant contends the trial court erred by denying its motion for summary judgment based on the “borrowed servant” doctrine because it misconstrued and misapplied this court’s holdings in McClure v. Clayton County Hosp. Auth., 176 Ga. App. 414 (336 SE2d 268) (1985) and Swindell v. St. Joseph’s Hosp., 161 Ga. App. 290 (291 SE2d 1) (1982). In those cases, this court held that “[w]hen a hospital yields control of its employees to a surgeon in the operating room and the surgeon exercises immediate personal supervision over these employees, then he becomes their master and their negligence during the course of the master servant relationship will be imputed to him. [Cit.]” Swindell, supra at 291 (1); McClure, supra at 418 (3).

The trial court interpreted McClure and Swindell as imposing a twofold requirement for the transfer of liability from the hospital for the negligence of its employees to an independent contractor surgeon. Under this interpretation, only if the hospital yields control to the surgeon in the operating room, and if the surgeon exercises immediate personal supervision over these employees, does the surgeon become the employees’ master so that their negligence is imputed to him.

However, we need not address the correctness of the trial court’s interpretation or whether Swindell and McClure, supra, provide a blanket exemption from liability for hospitals when their employees are in the operating room with a non-hospital employee surgeon. Even assuming the trial court is correct in interpreting the rule stated in Swindell and McClure to mean that in addition to the surgeon’s presence in the operating room, his personal supervision over the hospital employees may not be presumed, but must be shown by competent evidence, such evidence was shown by appellant in support of its motion for summary judgment in the case at bar. Dr. Delaney, in his deposition, clearly and unequivocally admitted that he was “in charge” of the operating room during appellee’s surgery. Appellee proffered no evidence in his response to the motion for summary judgment to rebut this, nor did he present evidence that Dr. Delaney absented himself from the operating room at any time during the surgery. There thus existed no question of fact that Dr. Delaney exercised immediate personal supervision over the hospital employees present in the operating room during the operation. Since Dr. Delaney also conceded in his deposition that the instrument was left in appellee’s abdomen during the surgery at which he was in charge, appellant was entitled to judgment as a matter of law, and the trial court erred by denying appellant’s motion for summary judgment as to this issue. See generally Belk-Hudson Co. of Moultrie v. Patterson, 178 Ga. App. 16, 18 (342 SE2d 2) (1986).

2. Appellee maintains the trial court erred by granting partial summary judgment to appellant on the issue whether the “locality rule” is the proper standard against which appellant’s actions or omissions must be measured, and presents extensive argument addressed to this and other issues in its brief. However, the record shows that no notice of cross appeal was filed by appellee, and we are therefore without jurisdiction to consider these arguments. OCGA § 5-6-38 (a). See Belk-Hudson, supra at 17; Life Ins. Co. of Ga. v. Helmuth, 182 Ga. App. 750, 752 (3) (357 SE2d 107) (1987).

Judgment reversed.

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

Decided October 2, 1987

Rehearing denied October 28, 1987

William P. Franklin, Jr., Wendy W. Williamson, for appellants.

Thomas R. Taggart, Samuel L. Svalina, for appellee.


text:
    74910.
    MANAGEMENT RECRUITERS OF ATLANTA NORTH, INC. v. J & B SMITH COMPANY, INC. et al.
    (362 SE2d 462)
   McMurray, Presiding Judge.

Management Recruiters of Atlanta North, Inc. (plaintiff) brought an action against J & B Smith Company, Inc. (corporate defendant) and Richard L. Smith (Smith) to recover fees for services rendered by plaintiff to corporate defendant. In his complaint, plaintiff alleged that Smith is responsible for payment of said fees because he “personally guaranteed” payment of the fees “[i]n consideration of [plaintiff’s] forebearance [sic] from suing [corporate defendant] . . .” Smith’s motion for summary judgment regarding his liability based on this allegation was granted. Plaintiff appeals. Held:

Summary judgment is proper only when “there is no genuine issue as to any material fact and that, the moving party is entitled to a judgment as a matter of law. . . .” OCGA § 9-11-56 (c). In the case sub judice, it is undisputed that Smith personally guaranteed payment of corporate defendant’s debt to plaintiff “[i]n consideration of [plaintiff’s] forebearance [sic] from suing [corporate defendant] . . .” It is also undisputed that this agreement was oral and took place after plaintiff rendered the services to corporate defendant, after corporate defendant had been charged for the services and after payment had not been forthcoming. “Thus, ‘(t)he instant case involves an alleged promise to assume an existing debt of a third party.’ . . . Zagoria v. DuBose Enterprises, 163 Ga. App. 880, 884-885 (296 SE2d 353) (1982) , reversed on other grounds, 250 Ga. 844 (302 SE2d 674) (1983) .” Trans-State v. Barber, 170 Ga. App. 372, 373 (1), 375 (317 SE2d 242).

“A promise to answer for the debt, default, or miscarriage of another must be in writing. Code § 20-401 (2) [now OCGA § 13-5-30 (2)]. There are various exceptions: if the agreement of the third party guarantor is an original undertaking; that is, one furthering his own interests rather than underwriting the debt of another, it is not within the Statute of Frauds. McLendon v. Frost, 57 Ga. 448; Casteel v. Allgood, 31 Ga. App. 107 (1) (119 SE 456); Scott Hudgens Realty & Mtg., Inc. v. Executive Action, Inc., 125 Ga. App. 81 (186 SE2d 504).” Howard, Weil &c. Inc. v. Abercrombie, 140 Ga. App. 436, 438 (2) (231 SE2d 451). “ ‘The line of judicial decisions in which an oral promise has been held to constitute an original undertaking to assume the debt of another rather than a mere collateral promise contains a common factual element . . . [, either] the extension of credit on goods and services, or a party otherwise changing his position, in reliance on the promise. (Cits.) . . .’ Zagoria v. DuBose Enterprises, 163 Ga. App. 880, 884-885 [supra].” Trans-State v. Barber, 170 Ga. App. 372 (1), 375, supra.

In support of its sole enumeration of error in the case sub judice, plaintiff contends “[t]he trial court erred in granting . . . Smith summary judgment . . . because a question of fact remains regarding whether he entered into an original undertaking with [plaintiff] to answer for [corporate defendant’s] debt.” In this regard, plaintiff argues that its forbearance in prosecuting a legal action against corporate defendant to recover the fees owed to it by corporate defendant is sufficient to remove Smith’s promise from the Statute of Frauds. We do not agree.

Plaintiff suffered no detriment as a result of its forbearance in bringing an action against corporate defendant. This is apparent because plaintiff’s complaint against Smith and corporate defendant was filed within the applicable statute of limitation and within six months from the time any fees for services became due. See Augusta Southern R. Co. v. Smith & Kilby Co., 106 Ga. 864 (2) (33 SE 28). Compare Langford v. Milwaukee Ins. Co., 101 Ga. App. 92 (113 SE2d 165). Consequently, “[f]or want of detriment to [plaintiff], [Smith’s] alleged promise was without consideration and unenforceable. Foote v. Reece & Son, 17 Ga. App. 799 (1) (b) (88 SE 689) (1916); Davis [v. Tift, 70 Ga. 52, 56 (2) (1883).]” Zagoria v. DuBose Enterprises, 163 Ga. App. 880 (1) (c), 885, 886, supra, rev’d on other grounds, 250 Ga. 844 (302 SE2d 674) (1983).

From another perspective, “[plaintiff has] demonstrated that it is not [its] intention to substitute [Smith] for the original debtor, [corporate defendant], but instead to look to [Smith] and the corporation for payment by bringing suit against both. (Cit.) Any promises made by [Smith] were therefore collateral and came within the Statute of Frauds. [Smith] is not bound by any oral promises to [plaintiff] to assume any of the corporation’s debt because a collateral promise to assume the debt of another must be in writing to be binding. (Cits.)’ (Emphasis in original.) [Cit.]” Trans-State v. Barber, 170 Ga. App. 372 (1), 375, supra. The trial court did not err in granting Smith’s motion for summary judgment.

Judgment affirmed.

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

Decided October 28, 1987.

Jeffrey N. Berman, Pamela D. Adler, for appellant.

Susan L. Howick, for appellees.


author: Pope, Judge.

text:
    74941.
    HOLT v. THE STATE.
    (362 SE2d 464)
   Pope, Judge.

Charles Will Holt brings this appeal from his conviction and sentence of theft by deception, OCGA § 16-8-3. Held:

1. “Where the appellee in this court points out no material inaccuracy or incompleteness of statement in appellant’s brief, and makes no additional statement and cites no additional parts of the transcript, he will be held to have consented to a decision on appellant’s statement of the case; and this court will accept appellant’s statement as prima facie true and decide the case on the basis of this statement and the evidence cited and quoted in support thereof.” Cincinnati, N. O. &c. R. Co. v. Hilley, 121 Ga. App. 196 (1) (173 SE2d 242) (1970); Colson v. State, 138 Ga. App. 366 (1) (226 SE2d 154) (1976); Court of Appeals Rule 15 (b) (1). See generally Wilkie v. State, 153 Ga. App. 609 (1) (266 SE2d 289) (1980). The State, appellee herein, having made no statement of facts beyond a one-sentence assertion that appellant “contracted to do certain work when from past experience he knew that he could not perform those services for that money,” we accept appellant’s statement of facts as prima facie true and decide the case on the basis of that statement and the evidence cited and quoted.

The alleged victim testified that in September of 1983 she and appellant entered into an agreement whereby appellant was to have 90 days in which to renovate a house owned by her, “to reconstruct the inside of the house, to put cabinets in the kitchen, to fix the roof [and] to paint the outside of the house.” No written agreement was tendered as evidence. On five separate occasions between September 1, 1983 and February 22, 1984 the alleged victim gave appellant five checks totaling $14,000. Appellant began the work in September 1983, and the alleged victim stated that “it started off real good.” She testified: “I would go by and look at the house or . . . Mr. Holt would call me up and tell me about the progress of the house. . . . Then he ran into a problem [in that] drywall or sheetrock . . . was not available.” Progress on the project was “very slow,” but the alleged victim continued to observe appellant and others working on the premises between September and December of 1983. The project was not completed within the 90-day time period, and the alleged victim, being dissatisfied with appellant’s work, decided to dispense with appellant’s services sometime after February of 1984.

A contractor hired by the alleged victim in September 1984 to complete the renovations testified that the plumbing repairs had been started and the electrical work was about 60 percent completed. The sheetrock had been installed, but required some finishing and painting, “so all [the contractor] had to do was get new doors to put in.” The exterior siding “was put on bottom side upwards,” but the contractor “worked it out.” All the windows were in. Although the contractor had not been shown the agreement between appellant and the alleged victim, he described the work completed on the house “on a scale from 1 to 10, about 2 percent had been [done].”

A code enforcement officer for the city bureau of buildings inspected the property at appellant’s request on June 7, 1984. He testified: “[A]t that time the complete project was in [progress.] All of the work was going on. There had been a lot of work . . . done on the particular project. . . . A lot of the work had been almost completed [and was] in progress being done. . . .” The roof was in need of some repair, but he described the work completed as “significant.”

Appellant himself testified that he had contracted with the alleged victim to renovate the subject house for $12,000. He stated that he had completed much of the work and at all times attempted to complete the project, but the alleged victim ordered him off the job in the early summer of 1984. He testified that to his knowledge there was no money left due and owing to the alleged victim.

Finally, the evidence showed that the alleged victim filed a breach of contract action in January 1986 against appellant and obtained a judgment by default in the amount of $16,500. She has been unable to collect that judgment. Appellant was subsequently indicted in this case in September of 1986. The State presented evidence at trial of three purportedly “similar transactions” which resulted in appellant’s pleading guilty to theft by taking charges in 1984 and 1985.

As is pertinent to this case, OCGA § 16-8-3 provides: “(a) A person commits the offense of theft by deception when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property, (b) A person deceives if he intentionally: ... (5) Promises performance of services which he does not intend to perform or knows will not be performed. Evidence of failure to perform standing alone shall not be sufficient to authorize a conviction under this subsection.” “The purpose of this law is not to enforce the contract to perform services, but to punish the fraudulent procurement of money, or other thing of value under the contract. Because of the nature of this law, and lest it be abused, the courts have been strict in requiring the State to allege and prove those things which, under the statute, are necessary for a conviction. To make a prima facie case the State must prove, among other things, a definite contract; that the defendant failed to perform the services so contracted for, without good and sufficient cause; and that he failed to return the money so advanced . . . , without good and sufficient cause, and all to the loss and damage to the hirer. Mere proof that the defendant failed to carry out the contract does not give rise to a presumption that he did so without good and sufficient cause, nor is such essential element supplied by statements of the hirer that he knew of no good reason why the laborer did not comply with the contract.” (Citations and punctuation omitted.) Banton v. State, 57 Ga. App. 173, 174 (194 SE 827) (1938). Furthermore, “[b]efore a prosecution can be successfully maintained under this act, the burden is upon the State to show that loss or damage was actually sustained by the hirer. Where it appears that advances, were made and that the person to whom the advances were made performed a certain amount of service, but the value of such service is not made to appear, the prosecution fails to carry this burden of proof.” Abrams v. State, 126 Ga. 591 (2) (55 SE 497) (1906).

Decided October 28, 1987.

Thomas L. Washburn III, for appellant.

Lewis R. Slaton, District Attorney, John M. Turner, Jr., Joseph J. Drolet, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

Applying the foregoing principles of law to the facts in this case, we are unable to conclude that the State carried its burden of proof. There is no evidence that the service rendered by appellant was of less value than the advances made to him by the alleged victim. Abrams, supra. Further, we are unable to find that any rational trier of fact could have found beyond a reasonable doubt that the evidence disclosed an intent to defraud on the part of appellant at the time the advances were obtained. See, e.g., Clements v. State, 39 Ga. App. 554 (147 SE 792) (1929); Raffield v. State, 7 Ga. App. 422 (3) (67 SE 109) (1910); Hankinson v. State, 6 Ga. App. 793 (2) (65 SE 837) (1909). Accordingly, the trial court erred in denying appellant’s motion for new trial.

2. In light of our holding in Division 1, supra, we need not address appellant’s remaining enumerations of error.

Judgment reversed.

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