text:
    A90A2202, A90A2203.
    WOOD v. THE STATE (two cases).
    (404 SE2d 589)
   Cooper, Judge.

Appellant was convicted by a jury in the City Court of Atlanta ofl speeding. Case No. A90A2202 purports to be an appeal from an inter-[ locutory order denying appellant’s request for appointment of counsel. However, appellant failed to obtain a certificate of immediate re-1 view from the court below pursuant to OCGA § 5-6-34 (b); therefore! the appeal in Case No. A90A2202 is dismissed for lack of jurisdiction.! In the Interest of J. B., 191 Ga. App. 797, 798 (383 SE2d 184) (1989). In Case No. A90A2203, appellant appeals his conviction enumerating! as error the trial court’s refusal to appoint counsel and lack of juris-| diction. Both appeals were filed pro se and were transferred to this court by the Georgia Supreme Court.

1. Appellant contends that the trial court erred in allowing the case to proceed after he asserted his desire for appointed counsel. Ir his brief, appellant charges that in two court appearances in 1989, the trial court failed to make a proper inquiry into his eligibility foil court-appointed counsel and that any waiver of counsel was the resuli of coercion and duress. The record does not contain a transcript oi either of the 1989 proceedings, and “ ‘ “[w]e will not presume erroj from a silent record. The defendant has the burden of showing erroj affirmatively by the record and this burden is not discharged by recij tations in the brief. (Cit.)” (Cit.)’ ” Blane v. State, 195 Ga. App. 504 505 (2) (393 SE2d 759) (1990).

The record on appeal does contain a transcript of appellant’! trial on May 1, 1990, before a different judge wherein appellant coni tinued to assert his desire for appointment of counsel “of his choice.f Review of the transcript shows that before the trial began appellanl objected to the court’s jurisdiction over the case by virtue of th| pending interlocutory appeal, and appellant contended that he ws coerced into a jury trial by the previous judge. The case was before the court on a jury trial calendar; jurors were impaneled, and the trial court attempted to determine if appellant wanted a jury trial. Appellant was asked seven times whether he wanted a jury trial. His responses were generally non-responsive as he expressed the need for appointed counsel and replied to direct questions requiring a yes or no answer, “I will accept a jury trial.” Finally, the trial court concluded that it could not get a response from appellant and ordered the case to proceed before the jury. Appellant refused to sign the accusation or state his plea of not guilty on the basis of lack of counsel, and when asked if he had sought counsel during the months in which the case was pending, he finally admitted not seeking counsel after several evasive responses. The court then attempted to determine whether appellant was financially eligible for appointed counsel and asked appellant six times whether or not he was employed. Appellant’s responses were again non-responsive and evasive. Appellant stated that he worked at one point for a trucking company, but he could not remember what his duties were nor could he remember what his salary was. The court then stated for the record that he determined that appellant refused to answer the question regarding his former salary and addressed the jurors, explaining that appellant entered a plea of not guilty which the court was confident appellant [fully understood.

I “ ‘Defendants in criminal cases have both a federal and a state [constitutional right to be represented by counsel or in the alternative, Ito represent themselves. However, it is only indigent defendants for [whom the trial court must appoint counsel. For a non-indigent defendant . . . the constitutional right to counsel only entitles him to be ■defended by counsel of his own selection whenever he is able and willing to employ an attorney and uses reasonable diligence to obtain his cervices. (Emphasis in original.) [Cit.]’ ” Smith v. State, 194 Ga. App. 810 (392 SE2d 288) (1990). “Whether a particular defendant has exercised ‘reasonable diligence’ in procuring counsel is a factual question, Ind the grant or denial of a request for a continuance on grounds of Ibsence of retained counsel is a decision within the sound discretion fcf the trial judge, reversible only for an abuse of that discretion.” Shaw v. State, 251 Ga. 109, 111 (303 SE2d 448) (1983). The record [hows that appellant would not cooperate with the trial court’s at-lempt to ascertain whether appellant was eligible for appointed coun-lel, and as a result, appellant was not deemed eligible. Although there l/as no express election that appellant chose to proceed pro se, “ ‘his Iwn past actions . . . nevertheless demonstrate that the right [to lounsel was] waived. Since a non-indigent defendant’s right to coun-lel is predicated upon his own diligence, a failure on his part to retain lounsel may constitute a waiver of the right to counsel. (Cits.) Thus, when presented with a non-indigent defendant who has appeared for trial without retained counsel, the trial judge has a duty to delay the proceedings long enough to ascertain whether the defendant has acted with reasonable diligence in obtaining an attorney’s services and whether the absence of an attorney is attributable to reasons beyond the defendant’s control. [Cit.]’ [Cit.]” Smith, supra at 811. Appellant argues that he was entitled to a stay in the proceedings during pen-dency of the appeal, and that position could justify his failure to retain counsel at trial; however, appellant asked the court several times “to allow conformation into the Supreme Court of Georgia to make £ ruling on the counsel issue.” These statements indicate knowledge on appellant’s part that some action was required of the court (i.e., £ certificate of immediate review) before his appeal could proceed which he had not obtained. In addition, even though the cases were filed in the wrong court, appellant’s conduct at trial and his appellate briefs reveal that appellant has more than a mere familiarity with th< law. This knowledge is relevant to the question of whether appellan was reasonable in relying on the pendency of the appeal and in failing to retain counsel. The trial court resolved the factual question! against appellant, and based upon our review of the testimony am appellant’s utter recalcitrance, we find that the court did not abus its discretion in proceeding to trial with appellant unrepresented b; appointed or retained counsel.

Decided February 25, 1991

Rehearing denied March 25, 1991

Melvin Wood, pro se.

Louise T. Hornsby, Solicitor, for appellee.

2. Appellant next contends that the trial court lacked jurisdictio] based upon the pendency of his interlocutory appeal. “ ‘The prope and timely filing of the notice of appeal is an absolute requirement t confer jurisdiction upon the appellate court.’ [Cit.]” Hester v. State 242 Ga. 173, 175 (249 SE2d 547) (1978). Inasmuch as appellant faile to obtain a certificate of immediate review, the appellate courts di not obtain jurisdiction of his appeal and the trial court did not los jurisdiction.

Appeal dismissed in Case No. A90A2202.

Judgment affirmed i Case No. A90A2203.

Banke, P. J., and Birdsong, P. J., concur.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A90A2240.
    LANIER v. JIM BROWN DEVELOPMENT CORPORATION et al.
    (404 SE2d 626)
   Cooper, Judge.

Appellant worked as a painter/subcontractor for over 25 years, during which time he was exposed to toxic paint solvents. In June 1988, appellant was forced to stop working and was hospitalized due to a lung disease. Appellant filed a claim for workers’ compensation benefits against appellee, but the claim was dismissed by the Administrative Law Judge on the ground that the evidence conclusively established that appellee was not the last employer for whom appellant worked so as to be exposed to the hazards of his disease as required under OCGA § 34-9-284. The full board affirmed the ALJ’s decision and on appeal to the superior court, the full board’s decision was affirmed by operation of law pursuant to OCGA § 34-9-105 (b). This appeal results from this court’s grant of appellant’s application for discretionary appeal from the superior court’s order.

1. Appellant contends in his first enumeration of error that the ;rial court erred in not applying the “any evidence” standard of review and in his second and third enumerations of error, he contends ;hat the trial court erred in affirming the decision of the full board and in failing to remand the case to the board. OCGA § 34-9-105 (b) sets forth the procedure for appealing a decision of the full board to the superior court. The statute provides: “The case so appealed may then be brought by either party . . . before the superior court for a rearing upon such record . . . provided, however, if the court does not hear the case within 60 days from the date the notice of appeal is filed with the board, the decision of the board shall be considered ffirmed by operation of law. . . .” The record reflects that appellant □Lied his appeal to the superior court with the board on May 2, 1989; hat the superior court received a certified copy of the record from he workers’ compensation board on May 22, 1989; that the case was scheduled for a hearing to be held on September 29, 1989. However, irior to the hearing it became obvious that since the hearing would lot occur within 60 days as required by OCGA § 34-9-105 (b), the full loard’s decision would be affirmed by operation of law. Therefore, ap-ellant applied for and was granted this discretionary appeal. It ap-earing from the record that the appeal from the full board to the uperior court was not timely heard in accordance with OCGA § 34-9-05 (b), the decision of the full board was affirmed by operation of w and the trial court had no jurisdiction to review the merits of the ase or remand the case to the board. Synthetic Indus. v. Camp, 196 Ga. App. 637 (396 SE2d 518) (1990).

2. A case affirmed by operation of law pursuant to OCGA § 34-9-05 (b) can be appealed. See OCGA § 34-9-105 (d). Appellant’s appeal was timely filed; therefore we will review the merits of his case under the “any evidence” standard.

Decided March 8, 1991

Rehearing dismissed March 25, 1991.

Marcus, Moskowitz & Associates, David H. Moskowitz, for ap pellant.

Saveli & Williams, Mark S. Gannon, Robert E. Mulholland, for| appellees.

OCGA § 34-9-284 provides: “Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease . . . shall alone be liable therefor, without right of contribution from any prior employer. . . .” Appellant testified that he worked for appellee for approximately a year and a half prior to the time he stopped working; that during the last seven or eight months before he stopped working, appellee did not have any work for him to do and due to this shortage of work, he painted two houses for two different contractors; and that the last house he painted before he was hospitalized was for one of those two contractors. It appearing that there was some evidence to support the board’s conclusion that appellee was not the last employer for whom appellant worked so as to be exposed to the hazards of his disease, we cannot reverse the board’s decision. Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408 (1) (224 SE2d 65) (1976).

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


author: Birdsong, Presiding Judge.

text:
    A91A0137.
    A91A0138.
    LINIADO v. ALEXANDER. ALEXANDER et al. v. LINIADO.
    (404 SE2d 602)
   Birdsong, Presiding Judge.

John G. Alexander, a professional tennis player who lived in Atl lanta from 1974 to 1987, filed suit against his former financial man! ager and friend, Ralph Liniado, alleging breach of contract, breach ol fiduciary duty and fraud in connection with their joint venture, whiclf they entered in 1981 for ownership and management of four condo| miniums.

Alexander’s claims involved Liniado’s failure to deed to Alexanl der full title to the jointly owned property in 1983 upon Alexander’! payment to Liniado of $20,000, after which Liniado, as manager, paid all expenses of the venture out of Alexander’s funds while still claim! ing for himself one-half of the losses as tax deductions until 1986, when Alexander learned Liniado had not parted with his ownership.

The trial court after a bench trial made findings of fact which neither party directly challenges in these cross-appeals. Its judgment for $3,500 against Liniado for unauthorized funds drawn from Alexander’s corporate funds is not challenged. The trial court dismissed or granted directed verdict to Liniado as to Alexander’s breach and fraud claims.

The trial court found that “what transpired here was not fraud, but was severe and expensive miscommunication and noncommunication.” The court then found there was “a situation of mutual confidence requiring utmost good faith by each joint venturer [OCGA § 23-2-58],” but that Liniado “acted in bad faith in failing to provide the agreed upon deed to [Alexander] as he said he had done and has caused [Alexander] unnecessary trouble and expense, and . . . [Alexander] is, therefore, entitled to partially recover expenses of litigation, including attorney fees, in the sum of $35,017.54.” Further, the trial court ordered Liniado to execute the necessary deeds to the property, and declared that the joint venture had come to an end as of January 1, 1984.

Liniado appeals, complaining that because the trial court ruled in his favor as to Alexander’s claims, no basis exists for an award of expenses of litigation and attorney fees for bad faith. Alexander cross-appeals, saying the trial court erred fundamentally in merely ordering Liniado to issue a deed to the property, since Alexander never asked for specific performance but had filed an action at law for fraud. \Held:

I 1. The trial court found and was authorized to find that under Ithe terms of the joint venture Liniado and Alexander “were to share [ownership of the condominium units on a fifty-fifty basis, and were bach to have a fifty percent share in the profits and losses of the venture. . . .” (Emphasis supplied.) The trial court found that Alexander’s discovery after 1982 that “Liniado had not funded his half of Ihe operating losses of the venture, but had paid all losses out of Alexander’s funds” caused discontent and led the parties to “eagerly ■ enter] into an agreement for Liniado to transfer his interest in the Venture to Alexander in return for a $20,000 cash payment to Liniado.” Finding Liniado never conveyed title and continued to use lialf the losses for his own tax benefit, the trial court then proceeded |>n the assumption that it was authorized to treat the case as if Alexander had petitioned in equity to enforce the sale. In this the trial lourt erred.

I The facts as found by the trial court establish that apart from Accepting, if not extracting, $20,000 from Alexander and charging him ir all operating expenses, Liniado did not act as if he had sold his share to Alexander. He retained all the benefits of ownership, to the detriment of Alexander, who could have kept his $20,000 and saved half the costs charged against him if he had known Liniado was going to retain half ownership and use half the losses for his own tax benefit. Alexander did not ask the court to “do equity” and effectuate the “sale.” He had a right to base his claims upon the circumstances as Liniado set them up, to the effect of at least constructive fraud in that there was only the illusion of a sale, resulting in the extraction of money and all expenses from Alexander, while Liniado continued to use half the losses to reduce his own tax liability.

In all cases of fraud, except fraud in the execution of a will, equity has concurrent jurisdiction with the law, but when law and equity have concurrent jurisdiction, whichever first takes jurisdiction shall retain it, unless a good reason is given for the interference of equity. OCGA §§ 23-2-50; 23-1-5; Gandy v. Robinson Co., 216 Ga. 190 (115 SE2d 341). Where a party has an election to proceed in law for damages or in equity, and chooses to proceed at law, the suit is cognizable at law (Hagan & Dodd Co. v. Rigbers, 1 Ga. App. 100, 105-106 (57 SE 970)), and the court of law will retain it. Equity does not interfere in a proceeding commenced at law (Mordecai v. Stewart, 37 Ga. 364, 365 (4)) and is without jurisdiction in the first place, unless the legal remedy is inadequate. OCGA § 23-1-4; Y. v. S., 224 Ga. 352 (162 SE2d 321). Even where a plaintiff has petitioned for equitable remedy, equity will be denied if there is a remedy at law for damages (Black v. American Vending Co., 239 Ga. 632, 633 (238 SE2d 420)), unless the plaintiff has prayed for specific performance of a sale of land. Id.; see F. & W. Grand &c. Stores v. Eiseman, 160 Ga. 321, 322 (127 SE 872). In general, a court is limited to grant relief consistent with the claim for relief. See Stith v. Willis, 219 Ga. 62 (131 SE2d 620); Williams v. Manchester Bldg. Supply Co., 213 Ga. 99 (97 SE2d 129).

Alexander had the right to seek damages for fraud. The trial court’s legal jurisdiction attached first and equity had no cause to interfere. Alexander preferred to get damages rather than to seek enforcement of a sale which, consistent with the findings of fact, wasl entirely illusory except for Liniado’s acceptance of Alexander’s $20,000 and all operating expenses. Alexander could not be compelled to accept an equitable remedy and forego his right to damages at law in this case. See Kenimer v. Ward Wight Realty Co., 219 Ga. 275 (133 SE2d 18).

Moreover, Liniado affirmed the existence of the joint venture by| making contributions to expenses after 1986 when this present con troversy arose. If in doing so he declared himself liable for some o: the expenses, then he may be seen as asserting his ownership; the fácil that he did this makes his acceptance of $20,000 from Alexander irj 1982 for his ownership all the more questionable. No jurisdiction and no reason exists to equitably declare the joint venture dissolved as of January 1, 1984, particularly since Liniado made contributions to the joint venture after 1986.

Inasmuch as this was not a case in equity and could not be converted to one, it is irrelevant whether specific performance could be granted in this case of an oral agreement violating the statute of frauds. See OCGA § 13-5-30. However, our ruling that this is an action cognizable at law is mandated also by the principal that equity enforces an oral agreement for the sale of land only when it is necessary to prevent a fraud. OCGA § 13-5-31 (3); see Hotel Candler v. Candler, 198 Ga. 339 (31 SE2d 693); Chastain v. Smith, 30 Ga. 96. In this case, the damage is already done by Liniado’s obtaining $20,000 and assessing all expenses against Alexander but still taking for his own tax benefit half the considerable losses under his management. Forcing Alexander to accept a deed from Liniado at this point, with the extinguishment of all Alexander’s claims for damages, would not prevent a fraud but would perfect one.

The terms of the judgment below granting specific performance of the agreement of sale and decreeing the joint venture dissolved as of January 1, 1984, and awarding expenses of litigation including attorney fees are reversed. The case is remanded with instruction to consider fully Alexander’s claims, including the plea to dissolve the joint venture pursuant to law, his claims for damages, and his claims for expenses of litigation and attorney fees, where allowable. Said claims are to be considered in light of the facts found by the trial court, including the fact found that Liniado’s counterclaims are without merit and the finding that Liniado acted in bad faith and caused Alexander unnecessary trouble and expense in an amount not less than $35,017.54; and such additional but not inconsistent facts as may be necessary to resolve fully Alexander’s claims. It thus becomes unnecessary to consider Liniado’s point in his appeal that expenses of litigation including attorney fees could not be awarded to Alexander for Liniado’s bad faith without Liniado being found liable for the particular claims of damage.

2. Jurisdiction of this case is proper in this court. This is an action at law for damages; equitable relief was not sought nor was it proper. Regal Textile Co. v. Feil, 189 Ga. 581 (6 SE2d 908). See Capitol Fish Co. v. Tanner, 192 Ga. App. 251 (384 SE2d 394).

Judgment reversed and case remanded with direction.

Pope and \Cooper, JJ., concur.

On Motion for Rehearing.

Liniado contends we interfered with the factfinding powers of the trial court, which found that “what transpired here was not fraud,” and found that the joint venture was effectively ended by the 1983 “buy out” wherein Alexander paid Liniado $20,000 for Liniado’s share of the property, even though Liniado never conveyed his interest to Alexander but continued to appropriate the tax benefits therefrom while charging Alexander for all costs of the venture.

Decided March 5, 1991

Rehearing denied March 25, 1991

Webb & Daniel, Philip S. Coe, Marcia M. Ernst, for appellants.

Greenfield, Ellis & Bost, William L. Bost, Jr., for appellee.

The trial court’s finding that “what transpired here was not fraud” was founded upon the legal error of treating Alexander’s claim of fraud as if it were a prayer for specific performance, and for that reason cannot stand. Appellate courts may set aside or vacate a conclusion based on legal error. It is clear that the proceedings became confused, first because of Liniado’s counterclaim asking that he merely be allowed to disgorge a deed, inasmuch as he did nothing wrong in extracting $20,000 while failing to convey his interest and using the benefits of ownership while charging all costs of ownership to Alexander; and secondly because the trial court did not recognize that Alexander could not be forced by Liniado or the court to accept the equitable remedy which Liniado sought to impose upon him. The trial court’s conclusion that what transpired was not fraud is bound up in the idea that it could impose an equitable remedy upon Alexander and thus avoid a finding of fraud.

The most successful fraud, and the most dangerous, is that which even when held up to light can be turned in such a way as to cast a flattering shadow. It is certainly within our purview to determine that a finding by the trial court is without evidence or is so contrary to evidence that the result cannot stand. We did not say Liniado committed a fraud, but we have no hesitation in saying that the underlying facts found by the trial court make out a case for at least constructive fraud, perhaps the more so because it seems so hard to detect.


author: Pope, Judge.

text:
    A90A1561.
    BROWN v. APOLLO INDUSTRIES, INC.
    (404 SE2d 447)
   Pope, Judge.

Plaintiff/appellant Rita Faye Luster Brown brought this productl liability action against defendant/appellee Apollo Industries, Inc.f seeking damages for the wrongful death of her husband. In her complaint, which is couched in terms of strict liability, negligence and breach of implied warranty, plaintiff contends the defendant’s product (Apollo All Purpose Cleaner) was defectively manufactured and distributed and that defendant failed to include a proper warning of the product’s potential dangers on the label. The defendant filed a motion for summary judgment and motion to strike plaintiff’s expert’s affidavit. The trial court granted defendant’s motions and plaintiff appeals. We affirm.

Plaintiff’s decedent, a journeyman electronic technician, was employed by MARTA. At the time he received the injuries which resulted in his death, he was performing annual maintenance on an AC switchgear compartment at MARTA’s Avondale Station. According to deposition testimony, the job the decedent was performing was a “dry cloth” job and therefore was to be performed without the use of any “wet” cleaners. The technician who was working in the compartment next to the decedent testified he heard a hissing or “whipping” noise and that, although his back was turned, he saw a flash and then heard an explosion. He turned around and saw the decedent in flames. The decedent died several days later; the cause of death was listed as “se-quela of electrical burns.”

According to the report of the MARTA Rail Safety Board, a blackened aerosol can of Apollo All Purpose Cleaner was found inside the compartment decedent had been cleaning at the time he was injured. The report stated that the “evidence supports the concept that aerosol spray triggered and provided a conductive plasma for the electrical arc” which occurred inside the compartment. The report further found that the “[a]nalytical evidence points to physical encroachment into a dangerous high voltage area and the triggering of an aerosol spray into the same area as being the cause of the electric flash-over. [Two Rail Maintenance General Safety Rules] were violated. Had these rules been followed, this incident would not have happened.”

1. Plaintiff first contends the trial court erred in granting defendant’s motion to strike the affidavit of Dr. Raymond Brandt, which was j filed in support of plaintiff’s response, to defendant’s motion for summary judgment.

“OCGA § 9-11-56 (e) mandates that ‘(s)upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated [therein.’ ” Morris-Bancroft Paper Co. v. Coleman, 188 Ga. App. 809, 810 (374 SE2d 544) (1988). The affidavit of plaintiff’s expert in this [case contained the following: (1) a conclusory statement, without ref-¡rence to supporting facts or evidence, that Apollo cleaner was “defective”; (2) a statement that the label on the product did not contain a proper warning; and (3) a statement that the inadequate labelling rendered the product unreasonably dangerous. The affidavit contained no averment that it was made on the personal knowledge of Dr. Brandt. No factual basis for the conclusions of the affiant were given and, other than a reference to the label of the product, which was not attached to the affidavit, no reference was made to any documents or evidence relied on in preparing the affidavit.

Under these facts, we have little hesitancy in concluding that the affidavit of plaintiff’s expert was wholly deficient under the mandates of OCGA § 9-11-56 (e). Consequently, the trial court did not err in granting defendant’s motion to strike. See, e.g., Parlato v. MARTA, 165 Ga. App. 758, 759 (1) (302 SE2d 613) (1983).

Plaintiff also argues the motion to strike was not timely filed. As to this issue, the record shows that defendant’s motion for summary judgment was filed on September 28, 1989, and plaintiff’s response with accompanying affidavit was filed more than three months later on January 5, 1990, four days before the hearing on defendant’s summary judgment motion was scheduled. The motion to strike was filed on January 9, 1990, the day of the hearing. According to the trial court’s order on the motion, the motion to strike was considered prior to the motion for summary judgment. Following the hearing, on January 16, 1990, plaintiff amended her response to defendant’s summary judgment motion in order to file the resume of her expert witness, the accident report prepared by MARTA and the report of the medical examiner. Under these facts, we find no merit to plaintiff’s argument concerning the untimely filing of defendant’s motion to strike. Cf. Vaughn & Co. v. Saul, 143 Ga. App. 74, 78 (237 SE2d 622) (1977) (ini which the objection to the sufficiency of an affidavit in support of a motion for summary judgment was not raised until oral argument on[ the motion).

2. Plaintiff next enumerates as error the grant of summary judg-| ment to defendant.

(a) In support of its motion for summary judgment defendant! submitted evidence, by way of deposition testimony and affidavit,] that the product was not defective. In response to defendant’s motion, plaintiff submitted the affidavit of Dr. Raymond Brandt, which! we have held was properly stricken by the trial court. In the absence] of Dr. Brandt’s conclusory averments, the record is devoid of evidence] indicating the product here was either negligently or defectively designed. Thus, the trial court properly granted summary judgmenl to defendant on the basis that, as a matter of law, the product was not defective. See Orkin Exterminating Co. v. Dawn Food Prods., 186 Ga. App. 201 (3) (366 SE2d 792) (1988); Coast Catamaran Corp. v. Mann, 171 Ga. App. 844 (2 & 3) (321 SE2d 353) (1984), aff’d 254 Ga. 201 (326 SE2d 436) (1985).

Decided March 7, 1991

Rehearing denied March 26, 1991

I Antonio L. Thomas & Associates, Antonio L. Thomas, for appellant.

I Freeman & Hawkins, Michael J. Goldman, Barry S. Noeltner, for appellee.

(b) Plaintiff also alleges the defendant improperly failed to warn of the danger of using this aerosol spray cleaner in an area containing a high voltage electric current. It is true that the label on this product did not contain a warning about use of the product around a high voltage area. However, it is well established that “[t]here is no duty on the manufacturer or seller to warn of obvious common dangers connected with the use of a product. [Cit.]” Vance v. Miller-Taylor Shoe Co., 147 Ga. App. 812, 813 (2) (251 SE2d 52) (1978).

The record in this case shows the following facts without dispute: Apollo All Purpose Cleaner is distributed by defendant only to industrial and commercial concerns; it is similar to products such as “Formula 409” or “Windex” and is supposed to be used to clean external surfaces that are not harmed by water. The record further shows it was “common knowledge” of MARTA’s electronic technicians that they should not use an aerosol spray or any “wet” substance around a high voltage area or inside a “live” cubicle because of the danger of “arcing.” The evidence was likewise undisputed that decedent was an experienced technician and familiar with the procedures to be followed in the job he was performing, having performed similar procedures 25 to 30 times in the past, and he knew or should have known not to use an aerosol spray inside the compartment he was cleaning.

“Ordinarily, there is no duty to give warning to the members of a profession against generally known risks. There need be no warning to one in a particular trade or profession against a danger generally known to that trade or profession. [Cit.]” (Punctuation omitted.) Eyster v. Borg-Warner Corp., 131 Ga. App. 702, 705 (206 SE2d 668) (1984). There being no genuine issue of fact to be resolved by a jury I in this case, the trial court’s order granting summary judgment to defendant Apollo Industries must be affirmed.

Judgment affirmed.

Beasley and Andrews, JJ., concur.

       We take this opportunity to remind appellate counsel that each enumeration is to conj tain only one alleged error. See OCGA § 5-6-40; MacDonald v. MacDonald, 156 Ga. App. 565 (275 SE2d 142) (1980).


author: Pope, Judge. Beasley, Judge,

text:
    A90A1633.
    A90A1853.
    SMITH v. ALLSTATE INSURANCE COMPANY. SHELTON v. ALLSTATE INSURANCE COMPANY.
    (404 SE2d 593)
   Pope, Judge.

On October 29, 1983, plaintiffs/appellants Ida Smith and Marie Shelton were injured when the bus in which they were riding left the roadway and rolled down an embankment. Both plaintiffs filed suit against the owner/lessee of the bus, the driver of the bus and the company which allegedly repaired part of the steering system of the bus shortly before the accident occurred. Transit Casualty Company, which provided liability coverage on the bus, was also named as a party defendant pursuant to OCGA §§ 46-7-12 (e) and 46-7-58 (e). However, in December 1985, Transit Casualty was declared insolvent in its home state (Missouri). On April 1, 1986 the Superior Court of Fulton County also found Transit Casualty to be insolvent and appointed an ancillary receiver for the purpose of liquidating the assets of the company located in this state.

At the time of the accident both plaintiffs were insured under separate policies of motor vehicle liability insurance issued by defendant/appellee Allstate Insurance Company. In March of 1986 plaintiffs notified Allstate of their potential claims for uninsured motorist benefits. On May 20, 1986, plaintiffs served Allstate with copies of their complaints as provided by OCGA § 33-7-11 (d). Allstate subsequently filed motions for summary judgment in both cases on the basis that it had not been served with the complaint within the applicable (two-year) statute of limitation. The trial court initially denied Allstate’s motions for summary judgment. On December 30, 1988, Allstate filed motions for reconsideration or in the alternative, renewed motions for summary judgment on the basis of this court’s holding in Bohannon v. Futrell, 189 Ga. App. 340 (375 SE2d 637) (1988). The trial court subsequently granted Allstate’s motions as to both plaintiffs. We have consolidated their appeals for appellate review.

We agree that this case is controlled by this court’s holding in Bohannon, which was subsequently affirmed by the Supreme Court in Bohannon v. J. C. Penney &c. Ins. Co., 259 Ga. 162 (377 SE2d 853) (1989). In Bohannon we rejected the argument urged by plaintiffs in this case that service on the uninsured motorist carrier should not be required until it has been determined that no (or insufficient) coverage exists. “The service requirement of OCGA § 33-7-11 should . . . be read as a statutory prerequisite a plaintiff must fulfill in order to collect uninsured motorist benefits from the UMC following a tort judgment in favor of the plaintiff. Because the UMC may be liable for the amount which a plaintiff/insured ‘shall be legally entitled to recover’ from an uninsured motorist/tortfeasor, and because a tortfeasor may become ‘uninsured’ subsequent to the injury-causing collision (see, e.g., OCGA § 33-7-11 (b) (1) (D) (ii, iii, iv)), the UMC is entitled to statutory notice of the existence of a lawsuit in which it ultimately may be held financially responsible. If the UMC is not made aware by service pursuant to OCGA § 33-7-11 (d) of the existence of a lawsuit in which it might become financially responsible, the plaintiff/insured will not be able to recover from the UMC. [Cits.] Therefore, it behooves a plaintiff who suffers injury as a result of the operation, maintenance, or use of a motor vehicle to have his UMC served with a duplicate original of the action filed against the owner/operator of the injury-causing motor vehicle at the time the action against the owner/ operator is filed, in order to protect his ability to collect insurance proceeds from the UMC should the tortfeasor be or become an uninsured motorist.” Bohannon v. Futrell, supra at 342.

Likewise, we reject plaintiffs’ argument that our decisions in Yarbrough v. Dickinson, 183 Ga. App. 489 (359 SE2d 235) (1987) and Rabun v. Williams, 168 Ga. App. 467 (309 SE2d 624) (1983) demand a contrary result. “Even if a timely-served UMC is awarded summary judgment on the ground that there is no uninsured motorist involved (as was the situation in [those cases]), that UMC has been given the OCGA § 33-7-11 (d) notice which would also serve as a basis for permitting the relation back under OCGA § 9-11-15 (c) of a complaint subsequently filed if and when the tortfeasor became an uninsured motorist.” Bohannon v. Futrell, supra at 343. Consequently, we find no error in the trial court’s grant of summary judgment to defendant in these cases.

Judgments affirmed.

Andrews, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

As I understand it, the point of our holding is that UMC Allstate is entitled to summary judgment not because the statute of limitation applying to contracts ran against its insureds’ causes of action, but because Allstate was not served with the statutory notice of the tort suit within the statute of limitation for the tort suit against other parties. The statutory notice is a prerequisite for the later filing of a contract action against the UMC based on the happening of one of the circumstances described in OCGA § 33-7-11 (b) (1) (D).

A UMC decision to enter, as a party, the suit brought as a tort action should not be confused with the nature of its liability, that being contract. Nor should the fact be overlooked that a cause of action might not arise against it until later, as in this case. See Yar- brough v. Dickinson, 183 Ga. App. 489, 490 (359 SE2d 235) (1987). The statute of limitation running against the contractual cause of action is six years, OCGA § 9-3-24, unless the contract provides otherwise. Patrick v. Travelers Ins. Co., 51 Ga. App. 253, 256 (3) (180 SE 141) (1935). The period of limitation begins to run from the time the cause of action arises, which for UMC coverage is the existence of one of the five statutory situations. It is the first date on which an action could be successfully maintained against the insurer. This statutory limitation is unrelated to the statutory notice of the tort suit.

Decided February 27, 1991

Rehearing denied March 26, 1991

McNally, Fox, Mahler, Cameron & Stephens, Patrick J. Fox, Randall K. Coggin, for appellants.

Fain, Major & Wiley, Donald M. Fain, Christopher E. Penna, John K. Miles, Jr., for appellee.

On the other hand, the right to bring the contract suit against the UMC is related to the statutory notice and the tort statute of limitation, in that the statutory notice must be given within the tort statute of limitation. Harris v. Allstate Ins. Co., 179 Ga. App. 343 (347 SE2d 368) (1986).

Despite what is said in Bohannon v. Futrell, 189 Ga. App. 340, 343 (2) (375 SE2d 637) (1988), regarding the relation back rule of OCGA § 9-11-15 (c), that rule does not apply. Service of the suit against the UMC alleging contractual liability because of one of the OCGA § 33-7-11 (b) (1) (D) circumstances would run from the date that cause arose, not the cause against the tortfeasor. Service of process in the suit against the UMC does not “relate back” to service of notice of the tort suit. For the contract suit to be viable, however, the statutory notice of the tort suit must have been given within the statute of limitation applicable to torts.


text:
    A90A1688.
    CROSS v. THE STATE.
    (404 SE2d 633)
   Pope, Judge.

Defendant was charged with malice murder, felony murder, in-l voluntary manslaughter and carrying a pistol without a license. Hel was convicted of involuntary manslaughter and carrying a pistol with-l out a license. He appeals from the denial of his motion for new trial.| We affirm.

1. Defendant first challenges the sufficiency of the evidence tc convict him of involuntary manslaughter. Defendant in this case was charged with unlawfully causing the death of a human being “by the commission of an unlawful act other than a felony, to wit: reckless conduct as defined by OCGA Section 26-5-60 (b).” See OCGA § 16-5-3 (a). Defendant does not dispute that he caused the death of the victim here, but contends the evidence is insufficient to show recklessness or criminal negligence on his part. We disagree.

The evidence adduced at trial, construed so as to support the verdict, shows the following: Defendant was employed by Helmswood Apartments as a security guard. He also resided at Helmswood Apartments. On January 15, 1990, defendant was at home when his beeper went off; the code on the beeper indicated to defendant that another security guard was in need of back-up or assistance. Defendant grabbed his gun, which was unloaded, as well as an automatic ammunition loader and proceeded to a pre-arranged location in the apartment complex. Finding no one at the pre-arranged location, defendant then went to the. apartment of Wilson Lawrence, who was also employed as a security guard by Helmswood. Lawrence told defendant he had beeped him because he saw someone go into an apartment that was supposedly vacant. Defendant loaded his gun, and he and Lawrence, who was unarmed, walked to the apartment. Both Lawrence and his wife testified that the defendant appeared to be excited.

Defendant instructed Lawrence to put his key in the lock on the door and then step aside. Lawrence testified that defendant was standing in a “firing position” with his gun cocked and pointed towards the door. Lawrence’s wife, who witnessed the shooting from a distance, also testified that defendant’s gun was pointed towards the apartment door. Lawrence testified he heard someone from inside the apartment call out “who is it,” as he put the key in the lock. Lawrence responded “security” and someone began walking towards the door. Lawrence stated that he could feel the victim start to open the door as he released the lock. Lawrence testified the victim opened the door “a little bit,” and that defendant’s gun immediately discharged, striking the victim in the chest and fatally wounding him.

Defendant also testified at trial. According to defendant, his gun went off accidentally when the victim “snatched open” the door. Defendant could not remember if the gun was cocked, but did testify that the gun was pointed towards the ground, not at the door. Testimony was also presented that a weapon such as defendant’s should not be cocked because the danger of accidental discharge is greatly increased.

Decided March 11, 1991

Rehearing denied March 26, 1991

J. Robert Joiner, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Doris L. Downs, Carl P. Greenberg, Assistant District Attorneys, for appellee.

“ ‘The jurors must weigh and resolve any conflicts presented by the evidence. The appellate court must view the evidence in the light most favorable to the jury’s verdict. (Cit.) Based on the evidence presented at trial, we are satisfied that any rational trier of fact could have found the (defendant) guilty beyond a reasonable doubt.’ [Cit.]” Williams v. State, 197 Ga. App. 368, 369 (398 SE2d 427) (1990). See also Kerbo v. State, 230 Ga. 241 (196 SE2d 424) (1973); Turnipseed v. State, 186 Ga. App. 278 (2) (367 SE2d 259) (1988).

2. Defendant next contends the trial court erred in that portion of its charge to the jury defining the offense of reckless conduct. “No objections were made when [the charges or] recharges were given, but neither did the court make any specific inquiry concerning the issue and we consider the merits of the enumeration.” Worley v. State, 193 Ga. App. 58, 60 (2) (386 SE2d 879) (1989).

The essence of defendant’s argument on appeal is that the trial court’s charge on reckless conduct suffers from several grammatical imperfections. “[A] charge that is sufficiently clear to be understood by jurors of ordinary understanding is all that is required.” Clark v. State, 153 Ga. App. 829, 831 (2) (266 SE2d 577) (1980). “The trial court charged the code sections on reckless conduct, OCGA § 16-5-60, which defines the same, and on felony involuntary manslaughter, OCGA § 16-5-3 (a). Defendant did not ask for any further elaboration of the elements of the charged offenses [either initially or when the court recharged the jury pursuant to its request]. Under these circumstances the court’s charge on the elements of the offenses was adequate [if not perfect].” Turnipseed v. State, supra at 281-282. See also Taylor v. State, 195 Ga. App. 314 (1) (393 SE2d 690) (1990).

3. Defendant also contends that the trial court’s charge to the jury on opinion evidence was incomplete. “ ‘It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. (Cits.)’ Williams v. State, 249 Ga. 822, 825 (3) (295 SE2d 293) (1982). So considered, the charge presents no error. Bentley v. State, 179 Ga. App. 287, 288 (2) (346 SE2d 98) (1986).” Worley, supra at 60 (2). In addition, again defendant did not request an elaboration of the charge given.

Judgment affirmed.

Beasley and Andrews, JJ., concur.

       It is undisputed that defendant did not have a license for the weapon he admittedly ^as carrying.


text:
    A90A1696.
    WELCH v. DOUGLAS COUNTY.
    (404 SE2d 450)
   Pope, Judge.

Plaintiff/appellant Thomas L. Welch, Sr., brought this suit against defendant/appellee Douglas County on behalf of his daughter, Michelle, who suffered an injury to her foot when she stepped on a nail in a board at a ball field owned by Douglas County. Based on the application of the Recreational Property Act, OCGA §§ 51-3-20 through 51-3-26, the trial court granted summary judgment to Douglas County and plaintiff brings this appeal.

1. “The purpose of the [Recreational Property Act] is to encourage property owners to make their property available to the public for recreational purposes by limiting the owners’ liability. OCGA § 51-3-20. OCGA § 51-3-22 provides ‘an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.’ As a prerequisite to immunity under the [Recreational Property Act], the owner cannot charge a fee for admission to the property. OCGA § 51-3-25.” (Parenthetical citations omitted.) Cedeno v. Lockwood, Inc., 250 Ga. 799, 801 (2) (301 SE2d 265) (1983). The Recreational Property Act applies to both private owners of land as well as public owners of land. Stone Mountain Mem. Assn. v. Herrington, 225 Ga. 746 (2) (171 SE2d 521) (1969).

The record shows that Douglas County made the property involved in this case available to a local civic association for use as a ball field by the public. No charge was made for use of the property. Plaintiff’s daughter was injured while her family attended a baseball game in which her brother played. Douglas County clearly comes within the protection of the Recreational Property Act under these facts. However, plaintiff argues that Douglas County waived the protection of the Act on two grounds: 1) by providing workers to maintain the ball field by cutting the grass on a regular basis and cleaning up any debris the workers saw while on the site and 2) by purchasing liability insurance.

Plaintiff argues that Douglas County’s act in undertaking maintenance of the property means that Douglas County voluntarily undertook the duty to keep the ball field safe and thus waived the protection of the Act. We do not agree. OCGA § 51-3-23 says in pertinent part “an owner of land who either directly or indirectly invites or per-Imits without charge any person to use the property for recreational purposes does not thereby: (1) Extend any assurance that the premises are safe for any purpose; (2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed. . . .” The only exception to the grant of immunity given by OCGA § 51-3-22 is contained in OCGA § 51-3-25 which specifies that an owner will be liable for “willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity. . . .” Construing the Act as plaintiff would have us do would largely frustrate the purpose of the Act and would increase the danger to the public. Under plaintiff’s construction, a landowner would enjoy immunity only if he essentially abandoned the property and did nothing to maintain it. Of course, if the owner followed that course he could well be liable for wilful and malicious failure to guard or warn against dangerous conditions pursuant to OCGA § 51-3-25. This construction obviously would not promote the stated purpose of the Act of encouraging landowners to make property available for recreational purposes. For these reasons, we hold that Douglas County’s activities involving routine maintenance and clean-up of the ball field did not waive the immunity provided under the Act.

Nor are we persuaded that Douglas County waived protection of the Act by purchasing liability insurance. Plaintiff confuses sovereign immunity with the specific limitation of duty granted to any landowner, public or private, by the Recreational Property Act. Immunity under the Act is a result of the legislature’s policy decision to limit the duty of a landowner providing property to the public for recreational use at no charge in exchange for increased recreational opportunities for the citizens of the State. The presence of insurance is irrelevant to application of the Act.

2. Plaintiff argues that there exists a genuine issue of material fact whether Douglas County acted in a wilful or malicious manner by failing to guard against or warn of the danger created by the presence of the board with the nail in it. “A wilful failure to guard or warn would require actual knowledge of the owner that its property is being used for recreational purposes; that a condition exists involving an unreasonable risk of death or serious bodily harm; that the condition is not apparent to those using the property; and that having this knowledge, the owner chooses not to guard or warn, in disregard of the possible consequences. This test excludes either constructive knowledge or a duty to inspect.” (Punctuation omitted.) Georgia Marble Co. v. Warren, 183 Ga. App. 866, 867 (1) (360 SE2d 286) (1987). The record is devoid of any evidence that Douglas County had actual knowledge of the hazard that caused the injury here. Consequently, summary judgment for Douglas County was proper.

Judgment affirmed.

Beasley and Andrews, JJ., concur.

Decided March 11, 1991

Rehearing denied March 26, 1991

Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., R. Briggs Beery, for appellant.

Drew, Eckl & Farnham, Nena K. Puckett, Theodore Freeman, for appellee.


text:
    A90A1720.
    HESLEN v. HESLEN et al.
    (404 SE2d 592)
   Cooper, Judge.

This appeal follows the trial court’s grant of a writ of scire facias to revive a dormant judgment. On February 19, 1981, appellees were awarded a judgment of $9,000 in damages and $4,500 in attorney fees on their complaint for the appointment of a receiver, an accounting and attorney fees. The judgment resulted after the trial court struck appellant’s answer and entered a default judgment based upon appellant’s failure to answer interrogatories. The trial court denied appellant’s motion to set aside judgment or motion for new trial, and appellant’s appeal of the judgment to this court was dismissed on February 18, 1982, because appellant failed to file an enumeration of error and brief. The judgment was entered on the general execution docket on April 15,1982, and was dormant when the petition for scire facias was filed on August 18, 1989, within the three years required by OCGA § 9-12-61. This appeal was filed pro se.

1. Appellant’s first six enumerations of error pertain to the February 1981 judgment and re-assert the identical issues raised in the previous appeal to this court. A grant of a writ of scire facias does not authorize the examination of the original judgment’s validity. Mitchell v. Chastain Fin. Co., 141 Ga. App. 512, 515 (3) (233 SE2d 829) (1977). “On the general principle of res judicata (which applies equally to proceedings by scire facias as to any other action or suit), and on the further ground that this method of reviving a judgment is merely a supplementary step in the original action, the defendant is absolutely precluded from going behind the judgment and offering in defense to the scire facias any matter which existed before the rendition of the original judgment and might have been presented in the former proceeding. In no case and under no circumstances can the merits of the original judgment be inquired into by the defendant on a writ to revive it. [Cits.]” Mitchell, supra. Accordingly, the issues raised in these six enumerations of error will not be considered in this appeal.

Decided February 25, 1991

Rehearing denied March 26, 1991

Richard Heslen, pro se.

Timothy S. Mirshak, Leland M. Malchow, for appellees.

2. In his seventh enumeration of error, appellant contends that since one of the appellees died and no substitution or suggestion of death appears on the record, the renewed judgment is invalid because she is still listed as a plaintiff. OCGA § 9-11-25 (a) (1) provides that “unless a motion for substitution is made not later than 180 days after the death is suggested upon the record by service of a statement of the fact of the death, the action shall be dismissed as to the deceased party.” Because there has been no personal service of the suggestion of death in the instant case, the 180-day limitation never commenced, and the renewed judgment is not invalid. See Ludy v. Giddens, 182 Ga. App. 111, 112 (354 SE2d 703) (1987).

3. Pursuant to OCGA § 5-6-6, appellees petition this court for the assessment of attorney fees for frivolous appeal. The record on appeal does not establish that the appeal was filed for purposes of delay only; therefore, appellees’ motion is hereby denied. See Sayler Marine Corp. v. Dixie Metal Corp., 194 Ga. App. 853 (3) (392 SE2d 45) (1990).

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


author: McMurray, Presiding Judge. Beasley, Judge, Carley, Judge,

text:
    A90A1794.
    CALLOWAY v. THE STATE.
    (404 SE2d 811)
   McMurray, Presiding Judge.

Defendant was indicted for rape and two counts of child molesta-1 tion. He appeals from his conviction of both counts of child molesta-j tion. Held:

1. In his first enumeration of error, defendant contends that thej trial court erroneously allowed the victim to testify over objection! that he had a temper and he and her mother fought frequently, asj this was brought in only to intimate his violent nature to the jury and] impermissibly place his character in evidence. The victim testified! that she was afraid of what defendant might have done if she did not do what he told her to do because of the “fights and fusses” he hadl with her mother. Since force is an essential element of rape, this testi-j mony as to defendant’s violence and the victim’s fear of him was rele-j vant and admissible. Lack of resistance, induced by fear, is force, anc may be shown by “the prosecutrix’ state of mind from her prior expe l rience with appellant and subjective apprehension of danger from him. . . . [Cit.]” Drake v. State, 239 Ga. 232, 235 (2), 236 (236 SE2d 748). “It is well-established that if evidence is otherwise relevant and material to the issues being tried, it is not rendered inadmissible merely because it may incidentally place the defendant’s character in issue. [Cits.]” Mathis v. State, 192 Ga. App. 772, 773 (3) (386 SE2d 532).

2. The social worker from the Spalding County Department of Family & Children Services testified that she observed from her investigation that the mother believed the victim and was protective of her. Defendant complains that this was impermissible opinion evidence, “if not hearsay,” and should not have been admitted over his objection on this ground. Even if this testimony was not admissible under OCGA § 24-9-65, the mother testified immediately after this witness. Thus, since defense counsel had the opportunity to confront the mother and cross-examine her under oath as to whether or not she did in fact believe the victim, the social worker’s testimony in this regard was admissible. Lynn v. State, 181 Ga. App. 461, 463 (2), 464 (352 SE2d 602).

3. Defendant asserts in his third enumeration that the trial court incorrectly invoked the “rape-shield” statute and erred in preventing defense counsel from asking “questions regarding the child’s and her family’s sexual background.” We do not agree.

While OCGA § 24-2-3 prohibits testimony regarding the victim’s past sexual behavior, “evidence of prior false allegations by the victim does not fall within the proscription of rape-shield laws.” Smith v. State, 259 Ga. 135, 136 (1), 137 (377 SE2d 158). In a hearing held pursuant to the Smith decision out of the presence of the jury, defendant was allowed to call all of his witnesses in order to show that the victim had made false accusations in the past. The trial court found no evidence to support defendant’s allegations, and both counsel agreed for the record that this finding was correct. Therefore, this evidence was properly excluded. Coxwell v. State, 195 Ga. App. 751, 752 (2) (395 SE2d 38); Brown v. State, 190 Ga. App. 678, 679 (2) (379 SE2d 598).

4. In his fourth enumeration, defendant’s contention that the trial court improperly denied his motion to suppress the evidence taken with the permission of the victim’s mother from the bedroom he and the mother shared is likewise without merit. “A warrantless search of a residence may be authorized by the consent of any person [who possesses a sufficient relationship to the premises to be inspected. [Cits.]” Williams v. State, 166 Ga. App. 798, 800 (2) (305 SE2d 489). Accord Brown v. State, 240 Ga. 274 (2) (240 SE2d 63). See piso Smith v. State, 193 Ga. App. 196, 197 (1) (387 SE2d 571). The otion to suppress was properly denied, as well, to the obtaining of blood, hair and saliva samples from defendant, as these represent “minor intrusions” which do not “cause the person to be a witness against himself within the meaning of Fifth Amendment protection and similar provisions of Georgia law. [Cits.]” Strong v. State, 231 Ga. 514, 519 (202 SE2d 428). See generally Robinson v. State, 180 Ga. App. 43, 50 (3) (348 SE2d 662) (reversed on other grounds in 256 Ga. 564 (350 SE2d 464)).

5. The trial court granted the State’s motion in limine prohibiting any mention during opening arguments of a civil suit allegedly filed by the victim’s mother against defendant. Defense counsel was allowed to question the mother on cross-examination at length on this subject, but defendant contends in his fifth enumeration that he was “irreparably harmed” by not being allowed to cross-examine the State’s witnesses who preceded the mother. However, the mother was the first witness for the State who had any interest or involvement in the purported lawsuit, which she denied having filed. Defense counsel made no proffer to disclose to the trial judge that the excluded testimony would have been material or relevant to the issues in the case. “Even where a party is under cross-examination, the court may exercise a sound discretion in requiring counsel to make the relevancy of the questions apparent. [Cit.]” Cox v. Norris, 70 Ga. App. 580, 584 (4) (28 SE2d 888). We find no abuse of discretion.

6. The trial court did not improperly limit defense counsel in his cross-examination of the physician who examined the victim concerning his pay scale for appearing as a witness, and whether he had to be paid “up front” before he would honor a court subpoena. When questioned by the court, counsel admitted that there was no evidence the doctor had made any such demands in the instant trial. Since defense counsel had extensively examined this witness about his pay scale for testifying in court, and knew that he was in fact testifying in defendant’s trial, the question could only have been asked to place the doctor in an unfavorable light before the jury. In such case, “the trial judge has as a discretion to be exercised in determining admissibility.[ [Cits.]” Smith v. State, 255 Ga. 685, 686 (2) (341 SE2d 451). We find! no abuse of discretion.

7. During the State’s questioning of the doctor on redirect, th< trial court asked several questions to clarify what effect the two-wee] lapse between the victim’s molestation and his examination of heij would have on any physical evidence of sexual abuse. Defendant con-[ tends in his seventh enumeration that this constituted an expressioi or intimation on the court’s part of its opinion on the facts of th< case, or what had or had not been proven, in violation of OCGA § 17 8-57. “Though a judge is prohibited from expressing or intimating his opinion as to what has or has not been proved, the trial judge doe; have the right to propound a question or a series of questions to an; witness for the purpose of developing fully the truth of the case. The extent to which the examination conducted by the court shall go is a matter within the court’s discretion. [Cits.]” Eubanks v. State, 240 Ga. 544, 546 (2), 547 (242 SE2d 41). We find no abuse of discretion.

8. In his final enumeration, defendant asserts that the trial court violated Rule 10.3 of the Uniform Rules for the Superior Courts by giving the jury two charges requested by the State the day after the trial began over his objection that they were not timely filed. While that rule does require all requests to charge to be submitted in writing “at the commencement of trial,” it also provides “that additional requests may be submitted to cover unanticipated points which arise thereafter.” Defendant does not complain that the instructions given were incorrect statements of the law or unadjusted to the evidence. “The court, whether requested or not, should give to the jury appropriate instructions on every substantial issue in the case presented by the evidence, and a failure to do so is cause for a new trial.” Walker v. State, 122 Ga. 747 (2) (50 SE 994). Thus we find no grounds for reversal.

Judgment affirmed.

Sognier, C. J., Banke, P. J., Pope . and I Cooper, JJ., concur. Beasley and Andrews, JJ., concur specially. \Birdsong, P. J., and Carley, J., dissent.

Beasley, Judge,

concurring specially.

I concur in the dissent to the extent that the witness’ opinion [that another witness believed the victim was inadmissible. Credibility lis a matter for the jury itself, and it does not need the opinion of [others on this subject to aid it in finding this fact. Thus it is not the sort of opinion admissible by virtue of OCGA § 24-9-65. Someone slse’s opinion about another’s opinion of credibility of yet a third person is an even more remote subject of inquiry and has no discernible validity in establishing the credibility of the victim-witness.

Nevertheless, even though the mother’s opinion was itself irrelevant, the evidence was harmless as cumulative, since it was, by inference if not otherwise, clear from the mother’s testimony as a State’s witness and from her actions in response to her child’s accusations, |;hat she accepted as true what the child said. “Evidence which is cu-rulative of other legally admissible evidence of the same fact, renders jiarmless admission of incompetent evidence. [Cits.]” Lynn v. State, [81 Ga. App. 461, 464 (2) (352 SE2d 602) (1987).

I am authorized to state that Judge Andrews joins in this special loncurrence.

Carley, Judge,

dissenting.

I cannot agree with the majority’s conclusion in Division 2 of its Ipinion that the testimony of the social worker that the mother believed the victim was admissible. The majority reaches this determination “since defense counsel had the opportunity to confront the mother and cross-examine her under oath as to whether or not she did in fact believe the victim. . . .” (Majority Opinion, p. 273) The problem with this analysis is that even the mother would not have been able to testify as to whether or not she believed the victim. “A witness can neither be impeached nor sustained as to credibility by allowing another witness to testify as to his individual opinion upon this question.” Savannah &c. R. Co. v. Wideman, 99 Ga. 245 (3) (25 SE 400) (1896). See also Kennard v. State, 180 Ga. App. 522, 524 (3) (349 SE2d 470) (1986). Even “[a]n expert witness may not testify as to his opinion of the victim’s truthfulness. [Cits.]” State v. Oliver, 188 Ga. App. 47, 50 (2) (372 SE2d 256) (1988). Thus, it was error to allow the social worker to testify that the mother believed the victim. Because I cannot find any basis for holding this error to be harmless, I must respectfully dissent to the affirmance of the judgment of conviction.

Decided March 15, 1991

Rehearing denied March 26, 1991.

Newton & Howell, Griffin E. Howell III, for appellant.

W. Fletcher Sams, District Attorney, for appellee.

I am authorized to state that Presiding Judge Birdsong joins in this dissent.


author: Banke, Presiding Judge.

text:
    A90A1999.
    SANTIAGO v. KLOSIK et al.
    (404 SE2d 605)
   Banke, Presiding Judge.

The appellant brought the present action seeking to recover fori chiropractic services he had allegedly rendered to a former patient,! Duncan, in treating her for injuries sustained in an automobile acci-l dent. Also named as defendants in the action were the appelleesl herein, consisting of an attorney who had represented Duncan in con-| nection with a personal injury claim asserted by her in connectior with the accident, and that attorney’s law firm. Duncan was neverl served, and the trial court granted summary judgment to the appel-f lees. This appeal followed.

Duncan had executed a written “assignment” in favor of the ap-| pellant chiropractor, directing the appellee attorney to pay him sucl sums as might be due him for services rendered to her, “and to with] hold such sums from . . . any settlement, judgment, or verdict . . recovered by her. In addition, Duncan had executed a “doctor’s lien” purporting to give the appellant a lien on the proceeds from any such settlement, judgment, or verdict. Subsequently, the appellee attorney asked the appellant for a medical report on Duncan’s condition, along with records and bills. In response, the appellant sent him a copy of the lien form signed by Duncan and advised him that he would be required to “sign [it] and send it back to us in order to get the information you request.” The appellee attorney complied; however, the appellant never provided the requested medical records and narrative report. The personal injury claim was eventually settled; and the settlement proceeds, less attorney fees and expenses, were disbursed to Duncan by the appellees, without payment of the appellant’s bill. Held:

1. Relying on Santiago v. Safeway Ins. Co., 196 Ga. App. 480 (396 SE2d 506) (1990), the appellant contends that the appellees had a legal obligation to satisfy his bill out of the proceeds of Duncan’s personal injury settlement. In that case, we held that a written assignment of insurance benefits executed by a patient to a health care provider was enforceable by the provider against the patient’s no-fault automobile insurance carrier, where the carrier had reimbursed the patient for his medical expenses with knowledge of the assignment. The appellees contend that this holding is not controlling in the present case because the assignment at issue here amounted to an assignment of a right of action for personal injuries, in contravention of OCGA § 44-12-24, rather than a mere assignment of insurance benefits. We disagree. The assignment at issue does not purport to authorize the appellant to bring suit against the tortfeasor to recover for [Duncan’s injuries but purports only to give him an enforceable inter-jest in any recovery Duncan may obtain as the result of her own pursuit of her personal injury claim.

I 2. The appellees contend that even if the assignment did not purport to be an assignment of Duncan’s personal injury claim, the trial court’s ruling was nevertheless correct because they received no consideration for the assignment. “[W]here there is a total failure of the consideration and a defendant has derived no benefit from a contract, luch total failure of consideration may be shown in bar of action on ■he contract.” Vanguard Properties Dev. Corp. v. Murphy, 136 Ga. App. 519, 521 (221 SE2d 691) (1975). While we recognize that in Santiago v. Safeway Ins. Co., supra, the assignment was held to be enforceable notwithstanding the absence of any consideration between Ihe parties to the litigation, in that situation there existed a contract Between the insurance carrier and the patient whereby, for a pre-Baium, the carrier assumed an obligation to indemnify the patient for Ber injuries; and it was the assignment of this “covenant of indemnity” which provided the basis upon which the health care provider could assert a claim for policy benefits directly against the carrier. Id. 196 Ga. App. at 480. The appellee attorney in the present case had no similar obligation to indemnify or reimburse the plaintiff for her medical expenses but was merely attempting to recover damages on her behalf in his capacity as her legal representative. Any recovery obtained by him in this regard would not, strictly speaking, be “owed” to her by him as an indebtedness but would rather be held in trust by him on her behalf. We hold that under these circumstances, the absence of any consideration flowing to the appellees from the appellant rendered the purported assignment unenforceable, with the result that the trial court did not err in granting the appellees’ motion for summary judgment.

Decided March 5, 1991

Rehearing denied March 26, 1991

Glenville Haldi, for appellant.

Greer, Klosik & Daugherty, Frank J. Klosik, Jr., William L. Swank II, for appellees.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Andrews, Judge.

text:
    A90A2086.
    SUNDERLAND v. VERTEX ASSOCIATES, INC. et al.
    (404 SE2d 574)
   Andrews, Judge.

Sunderland appealed from the trial court’s final ruling and grant | of involuntary dismissal as to portions of his claim against the payment bond issued by defendant American Insurance Company and! provided by prime contractor Vertex Associates pursuant to OCGA §[ 13-10-1.

Viewed in favor of the court’s findings in this non-jury case, thel evidence was that Gwinnett County contracted with Vertex Associ-| ates for construction of an $831,000 elementary school. Vertex thenl subcontracted the $81,600 site work portion of the project to L. D. C.f Grading. That subcontract agreement contained a non-assignment clause, forbidding the assignment of the entire work without writter consent of the contractor, or of “portions of this Subcontract without) written notification to the Contractor when such notification is re-| quested by the Contractor.”

L. D. C. did orally sub-subcontract at least a portion of the work to Sunderland (second tier subcontractor). Having been made aware by L. D. C. that Vertex required more trucks on the job, Sunderland entered into oral sub-sub-subcontracts (third tier subcontracts) with several other independent haulers to provide the additional trucks and drivers.

Vertex declared L. D. C. in default of its subcontract on March 31, 1989. Sunderland then sent timely notice to Vertex of his claim for $33,164.96 for “materials supplied for which it has not been paid.” The notice further stated that it was for having provided “materials through Land Development Construction for the improvement of the Hopkins Elementary School Project.”

At trial, Sunderland’s evidence comprising the $33,164.96 claim included not only his charges for running his own trucks on the project, for which he was granted recovery of $6,780, but amounts for gravel supplied to him by Vulcan Materials, marked up seven cents a yard for handling and amounts owing to five of his third tier subcontractors on his separate subcontracts with them plus his own $2 per hour surcharge on these subcontracts.

The trial court held that Sunderland had no standing to assert the claims of his supplier Vulcan and his third tier subcontractors. The court further relied on the fact that these entities had not separately provided written notice of their claims.

1. (a) Georgia has provided the protection of a bond on public works projects since 1910. Ga. L. 1910, pp. 86-87 provided for one having a contract for a public work to provide a surety bond “conditional that such contractor or contractors shall promptly make payment to all persons supplying him or them with labor or material, or [both, in the execution of the work provided for in such contract.” Recovery against the bond was available to “[a]ny person, firm, or corporation supplying the contractor with labor or material or both. . . .”

That statute was repealed and replaced by Ga. L. 1916, pp. 94-99, which required a bond “for the use of the obligee [owner] and of all Ipersons doing work or furnishing skill, tools, machinery, or materials ¡under or for the purpose of such contract. . . .” It provided for suit Ion the bond under certain conditions by “the person doing work or [furnishing skill, tools, machinery or materials to the contractor. . . .”

I The statute was amended to basically its present form by Ga. L. 11956, pp. 340-345, now codified as OCGA §§ 13-10-1 and 36-82-100 et fceq. The title of that act stated it was “to require a payment bond for fhe use of laborers and materialmen, subcontractors and laborers and laterialmen of subcontractors. ...”

While the lien statutes and the bond statutes serve similar pur-oses by providing for protection of those doing work when payment is not passed on to them, “there are also sharp differences, and the objectives are not the same. The lien statute is given a strict construction, Haralson v. Speer, 1 Ga. App. 573, 575 (58 SE 142), while the bonds statute is ‘liberally construed for the protection of those who do work or furnish materials for public works.’ Somers Const. Co. v. Atlantic C. L. R. Co., 62 Ga. App. 23 (7 SE2d 429). Under the lien statute the lien on the property is the security for the laborer and the materialman, while under the bond statute, where no lien can be secured, the bond is the security. The lien is created and imposed by operation of law, while the bond is a matter of contract, albeit a contract required by the statute to be made in order to give validity to another. Under the lien statute, prior to the amendment of 1956 (Ga. L. 1956, p. 185), a supplier of materials or labor to a subcontractor, having no contractual relation with the owner of the property, could acquire no lien, [cit.], while under the bond statute he was and is protected.” Ingalls Iron Works Co. v. Standard Acc. Ins. Co., 107 Ga. App. 454, 458 (1) (130 SE2d 606) (1963).

In Home Indem. Co. v. Battey &c. Co., 109 Ga. App. 322 (136 SE2d 193) (1964), this court considered whether federal cases interpreting the parallel Miller Act, 40 USC §§ 270a and 270b, to exclude! claims by second and third tier subcontractors were persuasive under our statute. In that case, Battey provided machinery, materials and equipment to Rome Plumbing, a subcontractor of National Heating & Air Conditioning, which was a subcontractor of Gann Construction Company, the prime contractor. The United States Supreme Court Clifford F. MacEvoy Co. v. United States, 322 U. S. 102 (64 SC 890, 88 LE 1163) (1944) based upon language identical to that in OCGA §| 36-82-104 (b), “by applying [this] proviso reached the conclusion tha1 the word ‘subcontractor’ in the Miller Act refers only to one having direct relationship to the main contractor and that those supplyin; materials to the subcontractor not having such relationship have n< right to sue on the bond. . . . [T]he Georgia statute does, as th< Miller Act does not, have a section defining the word ‘subcontractor! as used in the Georgia statute. [OCGA § 36-82-100 (2)] reads in pan as follows: ‘The term “subcontractor” includes but is not limited t< those having privity of contract with the prime contractor.’ (Emphasifj ours.) The lack of such a definition in the Miller Act resulted in th< construction placed thereon by the Supreme Court of the Unite* States. Therefore, the Supreme Court decision construing the Millei Act is not only not persuasive authority but is no authority at all aj applicable to the Georgia statute insofar as it holds that a subcontracl tor is limited to those having privity with the main contractor. The Georgia statute is plain and explicit. [Battey] is such a person who, as according to the statute, has a right to sue upon the payment bond.” (Indention omitted.) Id. at 325.

Similarly, Tonn & Blank, Inc. v. D. M. Asphalt, 187 Ga. App. 272 (1) (370 SE2d 30) (1988) dealt with the more restrictive lien statute and its similar definition of subcontractor as “means, but is not limited to, subcontractors having privity of contract with the prime contractor,” and held that “[i]n the absence of a clearer definition, we construe the word ‘subcontractor’ to mean one who, pursuant to a contract with the prime contractor or in a direct chain of contracts leading to the prime contractor, performed services or procured another to perform services in furtherance of the goals of the prime contractor.” Id.

Therefore, Sunderland is clearly a person who had a right to sue upon the bond. While the trial court relied upon the definition of “claimant” in the bond, i.e., “one having a direct contract with the Principal [Vertex] or with a Subcontractor of the Principal [L. D. C.],” as a basis for denying standing to Sunderland, Sunderland fits that definition of claimant. Also, because the bond is a statutory one, its terms can be no narrower than those of the statute. Home Indem., supra at 326 (2).

The argument of Vertex and American based on the non-assign-3nt clause in Vertex’ contract with L. D. C. and West End Tin Shop v. Broyles & Broyles, 117 Ga. App. 11 (159 SE2d 774) (1967) is [availing. The claim in that case was not made pursuant to OCGA 13-10-1 and 36-82-100 et seq., but rested upon general third party neficiary contract theory and this court, under those circumstances, and that the contract between the mechanical subcontractor and 3 sub-subcontractor and the payment bond posted by the mechani-1 subcontractor were not broad enough to cover a sub-sub-subcon-ictor of the sub-subcontractor. The project involved in the case was federal project, making the Miller Act applicable to the prime con-ictor’s payment bond, which was not at issue. This court did, how-er, look to the narrower federal interpretation of “subcontractor” in acEuoy, supra, which was rejected as to our statutory bonds in me Indem., supra.

(b) The only issue then becomes whether Sunderland may in-lde in his claim the amounts which he is contractually obligated to y his third tier subcontractor.

“ ‘If the [sub] contractor [L. D. C] sees fit to let the work to a ab-] subcontractor [Sunderland], who employes labor and buys aterials which are used to carry out and fulfill the engagement of e original contract to construct a public building, he is thereby sup-ied with the materials and labor for the fulfillment of his engagement as effectually as he would have been had he directly hired the labor or bought the materials.’ [United States &c. v. American Surety Co., 200 U. S. 197 (26 SC 168, 50 LE 437) (1906)].” A. K. Adams & Co. v. Gen. Elec. &c. Corp., 62 Ga. App. 287, 291 (8 SE2d 135) (1940); see Murphy v. Fuller, 96 Ga. App. 403 (2), (4) (100 SE2d 137) (1957). Therefore, Sunderland was entitled to pursue recovery for amounts for which he obligated himself while performing under the contract.

Decided January 14, 1991

Rehearing denied March 26, 1991

Bryant, Davis & Cowden, Larry S. Bryant, James W. Hays, fo:J appellant.

2. Sunderland’s second enumeration alleges that he was entitled to judgment because he proved damages of $28,464.96, consisting of his original demand of $33,164.96 minus amounts paid directly by the bonding company to two of his subcontractors who filed direct claims. The court’s ruling below did not reach this issue, having ruled as a matter of law that Sunderland could not assert such claims, and thus there is nothing in this regard ripe for this court’s consideration.

3. Finally, Sunderland alleges error in the trial court’s refusal to award “interest of $1,046.74 to date at the legal account rate of 18% per annum, pursuant to OCGA § 7-4-16, [on the principal amount of $33,164.96] . . . with future interest upon the judgment amount at the rate of 12% per annum.”

OCGA § 7-4-16 allows recovery of interest on commercial accounts at the rate of one-and-one half percent per month if the amount due is liquidated and prayer is made for the 18 percent per year interest. Typo-Repro Svcs. v. Bishop, 188 Ga. App. 576, 579 (2) (373 SE2d 758) (1988). “ ‘A debt is liquidated when it is certain how much is due and when it is due. (Cit).’ [Cit.]” Id.

Here, the amounts owing from Sunderland to his third tier subcontractors were disputed. Because the court ruled that he had no standing to raise their claims, no affirmative ruling was made on any amounts due them or him on their claims. Thus, it cannot be said] that those sums were liquidated. American Aluminum Prods. Co. v. Binswanger Glass Co., 194 Ga. App. 703, 710 (391 SE2d 688) (1990); Typo-Repro, supra. Compare Vulcan Life Ins. v. Davenport, 191 Ga. App. 79, 85 (5) (380 SE2d 751) (1989).

As to the $6,780 invoiced by Sunderland for work performed byl his own trucks, there was no contest of those hours, making that sum[ liquidated. Sunderland was therefore entitled to prejudgment interesl on that sum.

Judgment reversed.

Pope and Beasley, JJ., concur.

Webb, Fowler & Tanner, Anthony 0. L. Powell, Russell T. Bryant, for appellees.

       Although the court and counsel refer to summary judgment, the action requested and taken was an involuntary dismissal pursuant to OCGÁ § 9-11-41 (b); Chamlee v. Dept. of Transp., 182 Ga. App. 120 (1) (354 SE2d 701) (1987).

       See also J. W. Bateson Co. v. Board of Trustees &c., 434 U. S. 586 (98 SC 873, LE2d 50) (1978).


text:
    A90A2108.
    IVORY v. THE STATE.
    (405 SE2d 90)
   Pope, Judge.

Appellant Leroy Ivory was convicted of one count of possession of marijuana and one count of possession of cocaine. Shortly after midnight on May 8, 1987, police executed a no-knock search warrant at an apartment where appellant was living with his girl friend, Ernestine Williams. Police found no one in the living room and proceeded to the master bedroom. There, they found Ernestine Williams in the bed and Ivory on his hands and knees in the closet area. After securing Williams and Ivory, police found cocaine on the dresser in the bedroom and marijuana in the closet where Ivory was kneeling. Later that morning at the police station, after Detectives Chratian and Lynn had advised Ivory of his rights and Ivory indicated he wanted an attorney, Ivory spontaneously volunteered the statement that he did not see how police could charge Ms. Williams for the drug charges when the drugs were his.

1. Ivory argues that the State has failed to provide him all the transcripts of all the pre-trial proceedings, thus denying him the right effectively to appeal. The transcripts Ivory alleges are missing pertain to certain pre-trial motions. Complicating matters, while this case was pending, Ivory also was being prosecuted for armed robbery under a separate indictment. Apparently, some motions hearings were held in which motions pertaining to both cases were heard. However, a review of the record shows, in this case, Ivory filed only discovery motions, a motion for change of venue and a motion to suppress. A transcript of the motion to suppress is included on appeal, as is one for a Jackson-IDenno hearing. Although Ivory argues there also was a motion to re-puse the district attorney, no such motion was filed on the record in ■this case. The one motion that sought to incorporate motions from [the armed robbery case into this case made reference only to the motion for change of venue and motions for discovery. It is not clear from the record and the transcripts included on appeal whether any fcther motions hearings were transcribed or whether testimony was presented at those hearings.

I OCGA § 17-8-5 (a) requires the trial judge to ensure that the testimony in all felony trials is taken down. “[I]n the event of a felony Konviction, it is the duty of the state, at its own expense and through |he agency of the presiding judge, to request the court reporter to transcribe the reported testimony. [Cit.]” State v. Hart, 246 Ga. 212, 213 (271 SE2d 133) (1980). Pursuant to OCGA § 5-6-41 (d), preliminary motions would be included in the proceedings subject to OCGA § 17-8-5 (a). But see Miller v. State, 165 Ga. App. 487 (3) (299 SE2d 174) (1983) (if no testimony is given, but only argument presented, OCGA § 17-8-5 (a) does not require a transcript). “[W]here the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of [OCGA § 5-6-41 (f)]. [Cits.] When this is not done, there is nothing for the appellate court to review. [Cits.]” Zachary v. State, 245 Ga. 2, 4 (262 SE2d 779) (1980). See also Cooper v. State, 163 Ga. App. 482 (1) (295 SE2d 161) (1982). Ivory has not followed the procedure required by Zachary, supra. We have nothing to review.

2. Ivory argues the trial court erred in denying his motion for new trial based on the failure of his trial lawyer to call Ernestine Williams as a witness. At the hearing on the motion for new trial, trial counsel testified he talked to Ernestine Williams and had no intention of calling her as a witness. This reflects a tactical decision by trial counsel made in the exercise of his professional judgment. As such, it affords no basis for reversal. Taylor v. State, 190 Ga. App. 681, 682 (1) (379 SE2d 814) (1989).

3. Ivory argues the trial court erred in denying his motion to suppress. The affiant seeking the warrant, Detective Lynn, listed information provided by four separate confidential informants who ha proved reliable in the past. At the motion for new trial, Ivory at-j tempted to impeach two of the alleged sources of information relied[ upon by Detective Lynn. Even were we to accept that this testimon; properly discredited those two sources, the remaining information was| sufficient to enable the magistrate to find probable cause. See Bullock v. State, 195 Ga. App. 37 (1) (392 SE2d 534) (1990). There is no merr to this enumeration.

4. Ivory argues his character improperly was put into issue. Th record shows that after counsel for Ivory objected to the testimon and moved for a mistrial, he asked the court to give curative instruc tions to the jury. The trial court did so and also denied the motion foj mistrial; and thereafter counsel for Ivory did not renew his motion. 1 this circumstance, there is no merit to the enumeration. Chandler v. State, 143 Ga. App. 608 (2) (239 SE2d 158) (1977).

5. There is no merit to Ivory’s argument that the trial court erre<| in denying his motion for mistrial based upon his objection to th' prosecution’s statement made in closing argument that Ivory wal ready to sell everybody else down the river to protect himself. A trial, Ivory denied any knowledge of the drugs and adduced evidenc to suggest that others actually placed the drugs in the residence. Th| remark made by the prosecution came during a period of argument ii which the prosecutor was arguing regarding Ernestine Williams’ failure to testify. “While counsel should not be permitted in argument to state facts which are not in evidence, it is permissible to draw deductions from the evidence, and the fact that the deductions may be illogical, unreasonable or even absurd is a matter for reply by adverse counsel and not rebuke by the court.” (Citation and punctuation omitted.) Ward v. State, 193 Ga. App. 137, 140 (5) (387 SE2d 150) (1989).

Decided March 14, 1991

Rehearing denied March 26, 1991

Terry T. Everett, Sonya J. Calhoun, for appellant.

IB Edward D. Lukemire, District Attorney, P. Dee Brophy, Assistant District Attorney, for appellee.

6. The trial court did not err in allowing evidence of Ivory’s statement to police asking them why they persisted in charging Ms. Williams when the drugs were his. The record clearly supports the trial court’s finding that the statement was not a result of police interrogation, but was made voluntarily and without coercion. See Miller v. State, 194 Ga. App. 338 (3) (390 SE2d 291) (1990).

7. Ivory argues that the trial court’s charge did not adequately cover the doctrine of equal access and that the trial court should have given his written request. We find no merit in this argument. The charge given by the court adequately covered the subject.

8. Ivory argues the trial court improperly commented on the evidence when he explained a ruling by referring to his recollection of earlier testimony. “The statutory inhibition (OCGA § 17-8-57) against an expression or intimation of opinion by the trial court as to the facts of the case does not generally extend to colloquies between the judge and counsel regarding the admissibility of evidence. [Cits.]” Mathis v. State, 171 Ga. App. 620 (1) (320 SE2d 861) (1984). There is no merit in this enumeration.

9. The sentence imposed by the trial court was within statutory limits and is not unconstitutional. Covington v. State, 157 Ga. App. 371 (2) (277 SE2d 744) (1981).

10. The evidence was sufficient to enable a rational trier of fact to find Ivory guilty beyond a reasonable doubt of the offenses charged Dursuant to the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A90A2138.
    GOSSETT v. THE STATE.
    (404 SE2d 595)
   Pope, Judge.

Defendant Kurtis Lee Gossett appeals his conviction for trafficking in cocaine. The evidence shows defendant was a passenger in an automobile traveling north on Interstate 75 when the car was pulled over by a patrolman. In the trunk of the car the patrolman discovered a white powdery substance, later identified as 238.2 grams of cocaine, concealed inside the lining of an ice chest.

1. (a) Defendant argues the trial court erred in denying his motion to suppress the evidence seized from the trunk of the car. First, he argues the stop was illegal because it was merely pretextual and based only upon an improper use of the drug courier profile. To the contrary, the arresting officer testified he observed the car cross the “centerline” several times. (Because the road was an interstate highway, we presume he meant either the line separating lanes in the northbound section of the highway or else the line defining the inside emergency lane.) The car was also travelling over ten miles below the maximum speed limit in the left-most lane but would not yield the lane to the officer even though he came upon the car and then followed behind it for approximately two miles. Thus the driver was violating OCGA § 40-6-184 (a) (2), which prohibits traveling in the left most lane at less than the maximum speed limit when the drivei knows or reasonably should know that he is being overtaken by another vehicle. The patrolman testified he pulled the vehicle over tc investigate the traffic violation because he thought the driver mighl be sleepy or intoxicated. The stop of a vehicle is authorized, and no pretextual, if the officer observed a traffic offense. O’Keefe v. State 189 Ga. App. 519 (1) (376 SE2d 406) (1988); see also Hartley v. State 159 Ga. App. 157 (1) (282 SE2d 684) (1981). We note, moreover, tha' no evidence was presented at the suppression hearing that the office: was trained in or even considered the drug courier profile. Cf. Brown v. State, 188 Ga. App. 184 (372 SE2d 514) (1988). The stop was nol illegal.

(b) Defendant next argues the consent he gave to the patrolmaiB to look in the car was invalid and could not be the basis for a warH rantless search. The evidence presented at the suppression hearinH showed the car was leased in the name of an individual who was noM in the car and a check conducted by the patrolman revealed the refl turn of the car was overdue. The patrolman became suspicious wheB the driver and the two passengers gave inconsistent informatioH about the purpose of their trip and the city in Florida they had jusM visited. The driver said he did not know the individual who haH leased the car but defendant claimed he was a friend of the man. FcH this reason, he asked defendant for permission “to look in” the c¿H and defendant consented. Prior to asking for defendant’s permission, he asked defendant if he was transporting contraband and defendant stated he was not.

A third party’s authority to consent to a warrantless search of another person’s property rests upon factors such as mutual use of the property, “ ‘common authority over [the property] or some other sufficient relationship to the [property] to be inspected. [Cits.]’ [Cit.]” Browning v. State, 176 Ga. App. 420, 422 (336 SE2d 41) (1985). See also Atkins v. State, 173 Ga. App. 9 (2) (325 SE2d 388) (1984). Under the factual circumstances of this case, we hold the defendant had sufficient authority to consent to the search of the vehicle even though he was not the owner or lessor; it was reasonable for the patrolman to assume the owner had given him permission to use the vehicle. Moreover, if, as defendant argues, he did not have a sufficient property interest in the vehicle to authorize a search of it, then he did not have an interest protected by the Fourth Amendment and the search was not objectionable as to him. See Pupo v. State, 187 Ga. App. 765 (5) (371 SE2d 219) (1988).

(c) Finally, relying upon this court’s holding in State v. Diaz, 191 Ga. App. 830 (2) (383 SE2d 195) (1989), defendant argues the patrolman exceeded the scope of defendant’s consent “to look in” the car when he took apart an ice chest located in the trunk. The facts of this case are materially distinguishable from those in Diaz because there the officer, who merely asked for pérmission “to look inside” the car, jgave no indication of the purpose of his investigation. In fact, in Diaz, [the defendant testified he thought the officer, who had given him a ¡field test for DUI, only wanted to see if anyone else was inside his ¡vehicle, a panelled van with no side windows. Here, by contrast, the patrolman had already asked the defendant if he was transporting contraband. Thus, unlike the facts in Diaz, the officer had given defendant an indication of the purpose of his proposed investigation. IvVe need not address defendant’s argument that the search whs an improper search incident to arrest or an improper inventory search lince the testimony at the suppression hearing clearly established lhat the search was conducted only in reliance upon defendant’s con-lent.

9 2. Defendant also argues the trial court erred in failing to grant Biis motion for a continuance because at the commencement of the ■rial the State announced it would call a witness it had not previously listed in response to defendant’s demand. The witness was the foren■ic chemist who had signed the crime lab report stating the result of ■he chemical analysis of the substance seized at the time of defendant’s arrest. A copy of this report had been served upon defendant Jrior to trial. As this court has already held in Askew v. State, 192 Ga. App. 351 (1) (385 SE2d 21) (1989), when the identity and involvement of a witness is otherwise disclosed to defendant in discovery provided to him by the State, the purpose of OCGA § 17-7-110 is duly served and no error lies in permitting the State to call such a witness even though he or she was not listed as a witness in response to a demand pursuant to said statute. Moreover, in this case the recorc shows after the State disclosed its intent to call the witness, a recess in proceedings was taken between the early afternoon of the day the jury was struck and the following morning when the presentation o: evidence commenced, so not only did the defendant have prior notice of the identity and involvement of the witness but also had an opportunity to interview the witness after the trial commenced. This enumeration has no merit.

Decided March 1, 1991

Rehearing denied March 26, 1991

Sonya J. Calhoun, for appellant.

Edward D. Lukemire, District Attorney, Robert E. Turner, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley and Andrews, JJ., concur.