author: Carley, Judge.

text:
    74751, 74752.
    CITICORP INDUSTRIAL CREDIT, INC. v. ROUNTREE et al.; and vice versa.
    (364 SE2d 65)
   Carley, Judge.

Lee Rountree and James Martin, appellee-plaintiffs in Case No. 74751, are business partners who originally entered into a written agreement to buy certain computer equipment from Shell Group, Inc. (hereinafter referred to as Shell). The sales representative of Shell who conducted the negotiations with appellees was Becky Lemley. After signing the purchase agreement negotiated with Lemley, appellees began to make regular payments to Shell for the computer equipment. However, two weeks after delivery of the computer equipment, Lemley contacted appellees to advise them that she had found a way whereby their monthly payments for the computer equipment could be lowered. Lemley thereafter presented appellees with a copy of a lease agreement and an indemnification agreement. Lemley stated that “nothing would change” if appellees signed these agreements. To the contrary, however, the new documents would significantly change the nature of the underlying transaction from a sale to a lease of the computer equipment. Moreover, the new documents named Citicorp Industrial Credit, Inc., appellant-defendant in Case No. 74751, rather than Shell, as the lessor of the equipment. With regard to repairs and servicing, the lease agreement provided that appellees, at their “own cost and expense, [would] keep all equipment in good repair, condition and working order and [would] furnish all parts, and servicing required thereof.” The lease agreement also provided that appellees were “entitled to the benefit of any manufacturer’s warranties on the equipment to the extent permitted by applicable law.”

Appellees simply signed the new agreements and did not read them prior to signing. For some time thereafter, appellees submitted to appellant the regular monthly rental payments required by the lease agreement. Whenever the computer equipment did not operate properly, appellees notified both Shell and appellant. However, neither Shell nor appellant provided any repair service. Thus, appellees were forced, at their own expense, to contract with independent service companies for the repair of the equipment.

Appellees eventually refused to make any further rental payments to appellant and demanded that the lease be terminated. Appellant refused appellees’ demands and, when timely payment from appellees was not forthcoming, appellant filed this suit, seeking to recover for appellees’ alleged breach of the lease agreement. Appellees answered, asserting numerous defenses. Appellees also filed a counterclaim for the recovery of all payments that they had previously made to appellant under the lease agreement and of all expenses that they had incurred for the repair of the equipment. The case came on for a jury trial. At the close of all of the evidence, appellant moved for a directed verdict as to both its claim against appellees and appellees’ counterclaim against it. The trial court denied appellant’s motion and the case was submitted to the jury. As to appellant’s main claim, the jury returned a verdict in favor of appellees. As to the counterclaim, the jury also returned a verdict in favor of appellees, but awarded no damages. The trial court entered judgments on the jury’s verdicts and, in Case No. 74751, appellant appeals from those judgments. In Case No. 74752, appellees cross-appeal from the judgment entered on the jury verdict which awarded them no damages on their counterclaim.

At the outset, we note that the parties were in agreement at trial that the construction of the lease would be in accordance with and governed by the laws of the State of New York. “However, the record shows that the law of [New York] was not proved. Under such circumstances, it will be presumed that the law of [Georgia] obtains, and we will apply the law of this State. . . . [Cits.]” Crisp v. McGill, 229 Ga. 389, 390 (1) (191 SE2d 836) (1972).

Case No. 74751

1. Appellant enumerates as error the trial court’s failure to grant a directed verdict as to its main claim against appellees for breach of the lease agreement. It is undisputed that appellees signed the lease agreement which named appellant as the lessor of the equipment, that the equipment specified in the lease was provided to appellees, and that, contrary to the terms of the lease agreement, appellees stopped making payments to appellant. Therefore, the issue presented for resolution is whether appellees produced sufficient evidence to create a jury question as to the existence of any viable defense to their obligation to appellant under the lease agreement. If they did, the trial court did not err in denying appellant’s motion for a directed verdict. If appellees did not produce such evidence, the trial court erred in failing to grant a directed verdict in favor of appellant.

Appellees first contend that Lemley was an agent of appellant and that, as her principal, appellant is bound by any representations made by her. Appellees further assert that, insofar as they were fraudulently induced into entering the lease agreement by the misrepresentations of Lemley that “nothing would change” thereby, they have the right to rescind the lease agreement and are not bound by its terms. It would appear that Lemley was acting as an agent for appellant in negotiating the underlying lease transaction. See generally Potomac Leasing Co. v. Thrasher, 181 Ga. App. 883 (354 SE2d 210) (1987). However, appellees cannot rescind the lease agreement which they signed after those negotiations. A simple reading of the lease agreement would have shown to appellees the magnitude of the change which would be effected thereby. “ ‘(W)here one who can read signs a contract without apprising himself of its contents, otherwise than by accepting representations made by the opposite party, with whom there exists no fiduciary or confidential relation, he can not defeat an action based on it, or have it canceled or reformed, on the ground that it does not contain the contract actually made, unless it should appear that at the time he signed it some such emergency existed as would excuse his failure to read it, or that his failure to read it was brought about by some misleading artifice or device perpetrated by the opposite party, amounting to actual fraud such as would reasonably prevent him from reading it. [Cits.]’ [Cits.]” Conklin v. Liberty Mut. Ins. Co., 240 Ga. 58, 59-60 (239 SE2d 381) (1977). It is undisputed that appellees are experienced businessmen who are able to read. There is no evidence that Lemley was acting as an agent of appellees or that she employed any artifice to prevent them from reading the agreements. The fact that appellees deemed themselves too busy to read the lease and indemnification agreements prior to signing them will not authorize them to avoid their obligations to appellant thereunder. See W. P. Brown & Sons Lumber Co. v. Echols, 200 Ga. 284, 287 (36 SE2d 762) (1946). Therefore, contrary to their first contention, appellees cannot rescind the lease agreement on the basis of alleged fraudulent inducement.

Appellees further urge that the Uniform Commercial Code (UCC) would apply to the underlying transaction and provide them with certain remedies or defenses as against appellant. The contention is that the lease of the computer equipment was the equivalent of a sale and that the transaction is thus within the ambit of OCGA § 11-2-101 et seq. However, it is clear that the lease is not equivalent to a sale by appellant and a purchase by appellees of the computer equipment. The lease provided for 60 monthly payments of $711.22. Title to the equipment was at all times to remain in appellant. The lease contained no provision which required or even permitted appellees to purchase the equipment at the end of the lease. Instead, the agreement provided that the equipment was to be returned to appellant at the end of lease. “Nowhere therein can it be construed that the parties contemplated a sale, an option to purchase, or creation of a security interest. [Cits.] Thus, [OCGA § 11-2-101 et seq.] does not apply and the parties’ conduct is governed by the terms of the lease. . . .” McGuire v. Assoc. Capital Svcs. Corp., 133 Ga. App. 408, 411 (210 SE2d 862) (1974).

Appellees also contend that their lease of the equipment from appellant should not be considered as an entirely separate transaction, but as a continuation of the initial sales transaction between themselves and Shell. Thus, they urge that the two separate contracts should be construed together so as to evince a single sales transaction governed by the UCC. However, by signing the subsequent lease agreement with appellant, appellees, in effect, agreed to the rescission of their original agreement to buy the equipment from Shell and Shell, in apparent reliance thereon, then sold the equipment to appellant. Appellant never assented to the terms of the original rescinded sales contract between appellees and Shell. A contract is an agreement between two parties to do or not do some specified thing. OCGA § 13-1-1. Appellant cannot be bound by the terms of a contract to which it was never a party. It follows that the sales contract and the lease agreement are separate and complete contracts. “[N]o construction is required or even permissible when the language employed by the parties in their contract is plain, unambiguous, and capable of only one reasonable interpretation.” R. S. Helms, Inc. v. GST Dev. Co., 135 Ga. App. 845, 848 (219 SE2d 458) (1975). It follows that the UCC does not apply to the lease contract and, therefore, appellees have no remedy or defense under its provisions.

Appellees urge that, notwithstanding their default, appellant’s failure to mitigate damages provides them with a defense to liability. Insofar as this case concerns a lease rather than a sale, the parties’ conduct is governed by the terms of the lease which specifically provide that appellant was not required to sell or release the equipment for the benefit of appellees. See Capital Assoc. v. Zabel, 172 Ga. App. 19 (1) (322 SE2d 67) (1984). Accordingly, appellant’s failure to mitigate its damages by the resale or release of the equipment affords appellees no viable defense.

Appellees further urge that there was a failure of consideration in that the computer equipment did not function properly. However, there was no evidence presented at trial to show that appellant had ever made a warranty as to the repair of the equipment. The lease signed by appellees provided that they, at their “own cost and expense, shall keep all Equipment in good repair, condition and working order and shall furnish all parts, and servicing required thereof . . . In the event that any item of Equipment shall become . . . damaged beyond repair for any reason . . . [appellees] shall promptly pay to [appellant] the installments of rent then remaining unpaid hereunder for such item. ...” The contemporaneous indemnification agreement which appellees signed also provided that: “[A] 11 of the equipment described in the above Agreement(s) has been delivered to and received by the undersigned; that all installation or other work necessary prior to the use thereof has been completed; that said equipment has been examined and/or tested and is in good operating order and condition and is in all respects satisfactory to the undersigned and as represented, and that said equipment has been accepted by the undersigned and complies with all terms of the above Agreements. . . . In the future, in the event that said equipment fails to perform as expected or represented we will continue to honor the above Agreements) by continuing to make our monthly payments in the normal course of business and we will look solely to the seller or manufacturer for the performance of all covenants and warranties. In addition, we indemnify [appellant] and hold [it] harmless from any nonperformance of the aforementioned equipment. We acknowledge that [appellant] is neither the manufacturer, distributor or seller of the equipment and has no control, knowledge or familiarity with the condition, capacity, functioning or other characteristics of the equipment.” Thus, appellant agreed only to provide the computer equipment to appellees. In return, appellees agreed to make repairs to the equipment and to make monthly payments to appellant under the lease, which payments were lower than those which would have been made to Shell under the original purchase money sales agreement. Under the evidence, failure of consideration may have been a proper defense as against Shell, the original vendor, but not as against appellant, the subsequent lessor. See Petroziello v. U. S. Leasing Corp., 176 Ga. App. 858, 860 (338 SE2d 63) (1985). See also U. S. Leasing Corp. v. Jones Pharmacy, 144 Ga. App. 26 (240 SE2d 300) (1977).

A motion for directed verdict is to be granted when “there is no genuine issue of material fact to be resolved by the trior of the facts, and that the movant is entitled to judgment on the law applicable to the established facts. [Cits.]” Standard Accident Ins. Co. v. Ingalls Iron Works Co., 109 Ga. App. 574, 575 (136 SE2d 505) (1964). In this case, it is clear that there existed no questions of fact to be resolved by the jury as to appellees’ defenses and that appellant should have been granted a directed verdict as to its main claim. It follows that the trial court erred in failing to direct a verdict in favor of appellant on its main claim.

2. Appellant enumerates as error the trial court’s failure to enter a directed verdict in its favor as to appellees’ counterclaim.

In their counterclaim, appellees had sought to recover for appellant’s failure to repair the equipment and for appellant’s breach of express and implied warranties. OCGA § 44-12-63 provides that a bailor, such as appellant, is obligated to keep the bailed item in suitable order and repair for the purposes of the bailment and to warrant that it is free from any secret fault rendering it unfit for the purpose for which it is hired. However, “parties are free to contract and may by express agreement enlarge, abridge, qualify, or supersede obligations that otherwise would arise from the bailment by implication of law — so long as the contract does not violate statutory law or contravene public policy — and, so long as such restrictions are expressed in clear and unambiguous language. [Cits.]” Hall v. Skate Escape, Ltd., 171 Ga. App. 178, 179 (319 SE2d 67) (1984). As discussed previously, the lease agreement here provided that the obligation of repairs was upon appellees and not appellant. The agreement also expressly stated that appellees “ acknowledge [d] that [they had] made the selection of each item of Equipment based upon [their] own judgment and expressly disclaim [ed] any reliance upon statements made by [appellant]. [APPELLANT] MAKES NO EXPRESS OR IMPLIED WARRANTIES INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE WITH RESPECT TO THE EQUIPMENT AND HEREBY DISCLAIMS THE SAME. [Appellant] agrees that [appellees] shall be entitled to the benefit of any manufacturer’s Warranties on the Equipment to the extent permitted by applicable law.” “The provisions of this lease are not prohibited by law or public policy, as no injury to the public interest clearly appears.” Petroziello v. U. S. Leasing Corp., supra at 860. It is clear that by the plain and unambiguous language of the disclaimers, appellees renounced the statutory warranties of OCGA § 44-12-63 when they signed the lease contract. Thus, as a matter of law, appellees have no viable claim for the breach of those warranties. It follows that the trial court erred in failing to direct a verdict in favor of appellant as to appellees’ counterclaim.

Decided November 23, 1987

Rehearing denied December 18, 1987

James P. Smith, for appellant.

Stephen E. Farish, for appellees.

Case No. 74752

3. Appellees cross-appeal from the judgment entered on the jury’s verdict as to their counterclaim. As we have held in Division 2, the trial court did err as to appellees’ counterclaim but that error was in failing to direct a verdict in favor of appellant. Thus, appellees’ cross-appeal is moot.

Judgments reversed in Case No. 74751. Appeal dismissed in Case No. 74752.

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


source: Caselaw Access Project

author: Beasley, Judge. McMurray, Presiding Judge,

license: Public Domain

text:
    74841.
    ELWELL v. CUTLER et al.
    (364 SE2d 81)
   Beasley, Judge.

Legal malpractice. Plaintiff Elwell sued her attorneys for negligence in allowing the statute of limitation to run on a claim arising from a motor vehicle collision. She moved for partial summary judgment on the issue of negligence, and the attorneys as defendants also moved for summary judgment. Each motion was accompanied by an expert’s affidavit. Plaintiff appeals the denial of her motion for partial summary judgment and the grant of defendants’ motion.

The following is undisputed. The collision occurred on December 4, 1980. The attorneys were employed on July 14, 1982, and filed a complaint on behalf of plaintiff and her husband on November 29, 1982. Service was made on that defendant on April 18, 1983, and the collision case was dismissed as to plaintiff because of the statute of limitation. The trial court found a failure to exercise reasonable diligence in the efforts to have service perfected. This Court affirmed the dismissal in Elwell v. Haney, 169 Ga. App., 481, 482 (313 SE2d 499) (1984) holding that “the trial court did not err in its exercise of the legal discretion in finding as a matter of fact that this plaintiff wife was not diligent in her efforts to serve the defendant. . . . Clearly, there was evidence to sustain the finding of the trial court, ...”

Other significant facts are undisputed: The attorney handling the collision case did not research the law, when he filed the case four days before the statute of limitation ran as to the wife’s claim, to discover that failure to obtain prompt service as required by OCGA § 9-11-4 (c) could lead to dismissal for laches. Hilton v. Maddox &c. Trim Contractors, 125 Ga. App. 423, 425 (188 SE2d 167) (1972); Railey v. State Farm &c. Ins. Co., 129 Ga. App. 875, 880 (2) (201 SE2d 628) (1973); Webb v. Murphy, 142 Ga. App. 649, 650 (236 SE2d 840) (1977). The attorney did not advise the sheriff of the urgency of prompt service and the crucial nature of it to assure the viability of the claim. The client relied entirely on the attorney for the proper filing and service of the claim, and the attorney undertook to accomplish it. When the motion to dismiss the collision case because of laches was heard, no evidence was presented to show why the defendant was not timely served, nor was there any evidence to explain why it took four and one-half months to eventually perfect service. The attorney knew the defendant’s address when the collision suit was filed, it never changed, there was no evidence that defendant attempted to avoid service, and he was served at that address.

All of this is fact, and while it may be legally correct that the collision case is not res judicata here, the facts developed there are equally established in the record in this case and are no less true just because they were found there.

The opinion of the attorney representing the collision plaintiffs, that he pursued service “diligently and without delay” and that his conduct “fell within the parameters of acceptable professional conduct,” even without any countering expert opinion testimony, properly explicit or not, simply does not foreclose a consideration of whether what he indisputedly did and did not do constituted professional negligence. We do not agree that his opinion establishes as a matter of law that he was not negligent, when the undisputed facts are taken into account. Chief among these are that four judges concluded that plaintiffs in the collision case failed to act in a reasonable and diligent manner in attempting service, that the task of their securing service was assumed by the attorney, and that the lawsuit was dismissed for laches. These facts are more than enough to counter the defendant attorney’s opinion of his own dispatch of duty and so to create a triable issue. They speak as does the needle in the patient’s eye which was given in illustration of the exception to the analogous requirement for plaintiff’s medical expert opinion in Shea v. Phillips, 213 Ga. 269, 271 (2) (98 SE2d 552) (1957). The case sub judice is of the type of “unless” cases referred to in Parker v. Knight, 245 Ga. 782 (2) (267 SE2d 222) (1980). See also Killingsworth v. Poon, 167 Ga. App. 653, 655 (307 SE2d 123) (1983).

Thus, the lack of a particularized expert counter-affidavit, which appellees focus on, is beside the point. Kellos v. Sawilowsky, 172 Ga. App. 263 (322 SE2d 897) (1984), and the cases cited therein requiring expert opinion testimony, are inapposite because they do not involve dismissals of lawsuits for expiration of a statute of limitation not tolled by diligent service. As a matter of fact, Kellos states, quoting from earlier cases: “ ‘except in clear and palpable cases (such as the expiration of a statute of limitation), expert testimony is necessary to establish the parameters of acceptable professional conduct, a significant deviation from which would constitute malpractice.’ ” Kellos, supra at 264. Here we have that exceptional case.

An attorney has a duty “to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake.” Hughes v. Malone, 146 Ga. App 341, 344 (247 SE2d 107) (1978). See also Berman v. Rubin, 138 Ga. App. 849, 851 (227 SE2d 802) (1976). The attorney saying he did so, when the case he was handling was dismissed for laches attributable to him, does not make it so as a matter of law.

Neither plaintiff nor defendants were entitled to summary judgment, and thus the court erred as to the latter.

Judgment affirmed in part and reversed in part.

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

McMurray, Presiding Judge,

dissenting.

Defendants rely upon the affidavit of defendant Schulman which sets forth a summary of the underlying circumstance and actions taken to perfect service upon the defendant in plaintiff’s motor vehicle collision case. Defendant Schulman also gives his own expert opinion that “there are no grounds for a finding that I failed to exercise reasonable care in handling the plaintiff’s claim, or that I was negligent in filing the plaintiff’s complaint four days before the statute of limitations expired, and that my conduct at all times fell within the parameters of acceptable professional conduct applicable to attorneys practicing in Georgia and in the profession generally.”

“[I]n a legal malpractice case, the presumption is that the legal services were performed in an ordinarily skillful manner.” Hughes v. Malone, 146 Ga. App. 341, 349 (247 SE2d 107). In view of the presumption that the legal services were performed in an ordinarily skillful manner, together with the expert opinion of the defendant Schulman, plaintiff was required to produce in rebuttal an expert’s affidavit. Rose v. Rollins, 167 Ga. App. 469, 471 (2) (306 SE2d 724). However, in order for plaintiffs expert’s affidavit to be sufficient it must contain more than a mere naked conclusion but must provide some comparison between what was done and what should have been done. Loving v. Nash, 182 Ga. App. 253, 255 (1) (355 SE2d 448); Beauchamp v. Wallace, 180 Ga. App. 554 (349 SE2d 791); Bushey v. Atlanta Emergency Group, 179 Ga. App. 827 (348 SE2d 98).

In his affidavit, plaintiffs expert lists various documents which he has reviewed and deposes “that the Defendants failed to exercise reasonable care in handling Plaintiffs claim in [the automobile collision case] and as a result of such failure Plaintiff’s complaint was dismissed and it is my opinion that Defendants were negligent in waiting until some four days before the expiration of the statute of limitations expired to file Plaintiff’s complaint and were negligent in failing to exercise diligence in perfecting service.” Thus, plaintiffs expert’s affidavit failed to state the particulars necessary to establish the parameters of acceptable professional conduct, and is not sufficient to rebut the presumption that the legal services were performed in an ordinarily skillful manner, and is not sufficient to carry the burden required of a plaintiff when a defendant has made a prima facie showing of entitlement to judgment. Loving v. Nash, 182 Ga. App. 253, 256, supra.

Additionally, the majority’s reliance upon our approval of the factual finding of the trial court in Elwell v. Haney, 169 Ga. App. 481 (313 SE2d 499) is misplaced. That case is not res judicata to the defendants in the case sub judice who were not parties to that action. Thus, the factual findings derived from conflicting evidence by the trial judge in the collision case, should not be deemed to be “equally established” in the case sub judice.

Nor is the case sub judice one involving “clear and palpable” negligence so as to obviate the plaintiffs need for expert opinion testimony. The instant case is not a case in which the defendant attorneys negligently failed to file the plaintiffs action before the applicable statute of limitation expired, such as referenced in a parenthetical example in Hughes v. Malone, 146 Ga. App. 341, 345, supra, and Kellos v. Sawilowsky, 172 Ga. App. 263 (322 SE2d 897).

For the above stated reasons, I would affirm the grant of summary judgment in favor of defendants. Therefore, I respectfully dissent.

I am authorized to state that Presiding Judge Deen, Presiding Judge Banke and Judge Benham join in this dissent.

Decided December 2, 1987

Rehearing denied December 18, 1987

Kyle Yancey, for appellant.

E. Clayton Scofield III, A. Paul Cadenhead, for appellees.


author: Deen, Presiding Judge.

text:
    74863.
    OLIVO v. GAINEY et al.
    (364 SE2d 279)
   Deen, Presiding Judge.

On December 22, 1985, Stephanie Flagg gave birth to a daughter in Rochester, New York, where she and the natural father, Manuel Olivo, had been college students. (Olivo and Flagg were never married.) Shortly thereafter, Flagg placed the child with a private adoption agency and moved to her home town in Massachusetts. Although Olivo had not contacted or supported Flagg after she announced her pregnancy, upon being contacted by the adoption agency he refused to surrender his parental rights. In fact, on March 26, 1986, Olivo commenced custody and paternity proceedings in New York; on March 27, 1986, however, with the authorization of the mother, the child was removed from the adoption agency by Wayne Ohl, a New York attorney who subsequently delivered the child to William and Gale Gainey, a Georgia couple who wished to adopt the child.

The Gaineys hoped that the adoption could be effectuated in New York, but on August 4, 1986, after the New York court had ordered Ohl to reveal the location of the child, they commenced this action in Georgia (in the Thomas County Superior Court) to terminate Olivo’s parental rights and to adopt the child. Olivo contested the petition, asserting his claim for custody of the child and raising the issue of the pending custody action in New York.

On September 18, 1986, the New York court issued an order of filiation, declaring Olivo the father of the child, and on January 28, 1987, issued an order reserving jurisdiction over the issue of custody of the child and forbidding adoption of the child in Georgia until the New York custody proceeding was determined. Certified copies of both orders were promptly forwarded to the Georgia court. Nevertheless, following a hearing on February 5, 1987, the Georgia court terminated Olivo’s parental rights and approved the adoption. Olivo appeals, primarily contending that the court erred in not staying the adoption proceeding, pending the disposition of the New York custody action. Held:

1. OCGA § 19-9-46 (a) provides that “[a] court of this state shall not exercise its jurisdiction under this article [the Uniform Child Custody Jurisdiction Act] if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this article, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.” Olivo contends that under this provision of the UCCJA, the trial court erred in not staying this adoption proceeding until disposition of the preceding New York custody proceeding. Olivo’s contention, of course, assumes the applicability of the UCCJA to adoption proceedings.

Under the UCCJA, custody proceedings are defined as “proceedings in which a custody determination is one of several issues, such as an action for divorce or separation, and includes child neglect and dependency proceedings.” OCGA § 19-9-42 (3). “ ‘Custody determination’ means a court decision and court orders and instructions providing for the custody of a child, including, but not limited to, visitation rights.” OCGA § 19-9-42 (2).

In construing similar provisions, other jurisdictions are divided on whether the UCCJA applies to adoption proceedings. See E. E. B. v. D. A., 446 A2d 871 (89 NJ 595) (1982); Noga v. Noga, 443 NE2d 1142 (111 Ill. App. 3d 328) (1982); In re Johnson, 415 NE2d 109 (Ind. App. 1981); Williams v. Knott, 690 SW2d 605 (Tex. App. 1985). Previously, this court has implicitly held that custody proceedings under the UCCJA encompass adoption proceedings, but it is apparent that this court imprudently or inadequately considered the issue at that time. See In re C. C. B., 164 Ga. App. 3 (296 SE2d 198) (1982). Reconsidering the language and purpose of the UCCJA, we are persuaded that the UCCJA simply does not apply to adoption proceedings, and to the extent that In re C. C. B. is inconsistent with this holding, that case must be overruled. “Courts, like individuals, but with more caution and deliberation, must sometimes reconsider what has been already carefully considered, and rectify their own mistakes.” City of Atlanta v. First Presbyterian Church, 86 Ga. 730, 733 (13 SE 252) (1891).

2. Olivo also contends that under the Parental Kidnapping Prevention Act, 28 USCA § 1738A et seq., the trial court should have stayed this adoption proceeding pending disposition of the New York proceeding. However, the language and purpose of that Act are essentially the same as the UCCJA, and we are similarly persuaded that the PKPA does not apply to adoption proceedings.

3. Although the trial court properly declined to stay the adoption proceeding before it, we agree with Olivo that the court erred in finding that Olivo had abandoned the child and in granting the adoption. Reviewing the evidence in the light most favorable to the appellee, including the fact that Olivo has fought “tooth and nail” for the custody of the child since the birth of the child, we conclude that a rational trier of fact could not have found by clear and convincing evidence “ ‘an actual desertion, accompanied with an intention to entirely sever, so far as possible to do so, the parental relation, and throw off all obligations growing out of the same . . . and forego all parental duties and claims.’ ” Glendinning v. McComas, 188 Ga. 345, 347 (3 SE2d 562) (1939); In re B. D. C., 256 Ga. 511 (350 SE2d 444) (1986).

Decided November 3, 1987

Rehearings denied November 24, 1987 and December 18, 1987

Phyllis J. Holmen, John L. Cromartie, Jr., Randall A. Schmidt, for appellant.

William C. Sanders, for appellees.

Henry Bauer, amicus curiae.

Judgment reversed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Corley, Pope, Benham and Beasley, JJ., concur. Sognier, J., concurs in the judgment only.


author: Sognier, Judge. Beasley, Judge,

text:
    74879.
    BEAL v. BRAUNECKER.
    (364 SE2d 308)
   Sognier, Judge.

Harvey Beal brought suit against Peter Braunecker seeking $6,200 in actual damages, as well as sums for pain and suffering and exemplary damages, for injuries Beal incurred in an automobile collision. In a special verdict, the jury awarded Beal $5,600 in damages but specifically found that no aggravating circumstances existed in the act or intention. Beal appeals.

The evidence adduced at trial shows that appellee, driving an Olds Cutlass, was in the center turn-only lane proceeding to turn left in front of appellant’s on-coming jeep. The evidence conflicts whether appellee stopped with the front end of the vehicle protruding into appellant’s lane prior to appellant’s arrival at the interception point or whether appellee turned his automobile into appellant’s lane just as appellant neared. The front left tire of appellant’s jeep collided with the left front bumper of appellee’s Cutlass with the result that appellant broke his left clavicle, among other injuries. Evidence was introduced that appellee was operating the Cutlass while under the influence of alcohol, his blood alcohol registering as .28 percent on the breath analysis test administered to him by the police officer investigating the accident. Evidence was also adduced at trial that the shoulder appellant broke in the collision had been injured in incidents both prior to and after the collision in question.

1. Appellant contends the trial court erred by failing to give his Request to Charge Number 9, taken from language in Moore v. Thompson, 255 Ga. 236 (336 SE2d 749) (1985), that “[evidence that the defendant’s driving under the influence of alcohol caused the plaintiff’s injuries is evidence of willful misconduct, wantonness, and that entire want of care which raises the presumption of conscious indifference to the consequences. Therefore, driving under the influence of alcohol so as to cause personal injuries to another is an aggravating circumstance in the act which would authorize the jury to give punitive damages to deter the wrongdoer from repeating the act.” Id. at 237.

Appellant argues that this language in Moore stands for the proposition that, upon a determination by the jury that the defendant’s driving under the influence of alcohol caused the plaintiff’s injuries, the jury must find as a matter of law that aggravating circumstances exist. We do not agree.

In Ransone v. Christian, 49 Ga. 491 (1873), the Supreme Court reversed the jury verdict and judgment thereon because the trial court charged the jury it must consider a certain set of facts to be a circumstance of aggravation. The basis for this reversal was the Supreme Court’s recognition that whether or not the facts of the case shall have the effect of aggravating circumstances so as to support an award of punitive damages is a question for the jury, and not the court. “[I]t is for the jury to say whether there are circumstances of aggravation; that is, whether the admitted facts are of such a character as to constitute matter requiring punitive damages.” Id. at 504. See also Townsend &c. Enterprises v. W. R. Bean & Son, 117 Ga. App. 109, 113 (6) (159 SE2d 776) (1968); Bonds v. Powl, 140 Ga. App. 140, 142 (2) (230 SE2d 133) (1976); Mr. Transmission v. Thompson, 173 Ga. App. 773, 775 (328 SE2d 397) (1985).

Ransone was not implicitly overruled in Moore because the Supreme Court in Moore did not purport to remove from the jury’s determination the question whether the evidence as admitted gives rise to aggravating circumstances. As the Supreme Court stressed in Moore, “it should be noted that we are dealing here with the admission of evidence on the issue of punitive damages.” Id. at 237. Thus, when appellant’s interpretation of the above-cited language in Moore is read in context with the opinion as a whole, it is apparent that rather than mandating a jury find that aggravating circumstances exist whenever a defendant’s driving under the influence of alcohol caused the plaintiff’s injuries, as asserted by appellant, the Supreme Court instead was reiterating that unjustified, intoxicated driving when it causes personal injuries to another is evidence of aggravating circumstances. As such, it is evidence admissible at trial.

The trial court charged the jury that should they find the defendant was driving while intoxicated and that a causal connection existed between that intoxication and the plaintiff’s injuries, then the defendant’s driving under the influence could be considered by the jury as evidence, along with all the other evidence, when they deliberated on whether or not aggravating circumstances existed. Although a determination that appellee’s driving under the influence of alcohol caused appellant’s injuries would support a finding that aggravating circumstances existed, the trial court did not err by refusing to instruct the jury that they must find such aggravating circumstances existed. Compare Ransone, supra at 505. The charge given by the trial court was not in conflict with Moore and avoided the confusion, as demonstrated by appellant’s argument on appeal, that a use of the precise language in Moore might have created. “Even though language used by an appellate court in a decision may embody sound law, it is not always appropriate to employ such language in instructing the jury. Such an instruction may be helpful in explaining a principle of law but ambiguous to a jury.” Davis v. Cincinnati Ins. Co., 160 Ga. App. 813, 815 (288 SE2d 233) (1982). Accordingly, the trial court did not err by refusing to instruct the jury as to appellant’s requested charge.

2. Appellant contends the trial court erred by excluding evidence regarding appellee’s three charges for driving under the influence of alcohol and the dispositions thereof which occurred prior to the incident in question. The record, perfected by appellant, reveals that the dispositions of the three charges resulted in one plea of nolo contendere to driving under the influence, one plea of nolo contendere to public drunkenness and one plea of guilty to public drunkenness. Appellant argues that under Moore, supra, the trial court should have admitted this evidence and bifurcated the trial so as to try the issue of punitive damages separately from the issue of liability. We note that appellant sought to introduce this evidence solely on the issue of punitive damages rather than for impeachment purposes, see Tilley v. Page, 181 Ga. App. 98, 99-100 (4) (351 SE2d 464) (1986), or on the issue of liability for which the rule remains that proof of defendant’s prior driving record or evidence of defendant’s similar acts or omissions on other and different occasions is inadmissible. See Whidby v. Columbine Carrier, 182 Ga. App. 638-639 (1) (356 SE2d 709) (1987); see also Moore, supra at 237.

In Moore, the Supreme Court held that evidence of defendant’s guilty pleas to driving under the influence before and after the incident in question is admissible on the issue of punitive damages. Id. at 237. Although appellant’s evidence did contain one plea of guilty, it was to the offense of public drunkenness. This evidence, along with the evidence regarding appellee’s nolo contendere plea to the same offense, was not relevant as to the issue of appellee’s unjustified intoxicated driving and the trial court did not abuse its discretion by refusing to admit it. See generally Georgia American Ins. Co. v. Varnum, 179 Ga. App. 195, 197 (2) (345 SE2d 863) (1986). As to appellee’s nolo contendere plea to driving under the influence, OCGA § 17-7-95 (c) provides: “Except as otherwise provided by law, a plea of nolo contendere shall not be used against the defendant in any other court or proceedings as an admission of guilt or otherwise or for any purpose. . . .” We are not persuaded by appellant’s policy arguments that we should ignore the plain language of this statute. Thus, the trial court did not err by excluding this evidence and it follows that the trial court’s refusal to bifurcate the trial was not error.

3. Appellant argues the trial court erred by not granting his motion for a new trial on the ground that the verdict was inadequate as a matter of law in that the amount awarded was approximately $600 less than appellant’s actual damages. Appellant cites Tallent v. McKelvey, 105 Ga. App. 660, 662 (3) (125 SE2d 65) (1962) and Brooks v. Williams, 127 Ga. App. 311, 313 (2) (193 SE2d 231) (1972), which set forth the rule that “on the general grounds of a motion for new trial, where the verdict is in an amount not supported by the evidence, and where there is no legal justification for reducing it as against a plaintiff who cannot have been guilty of comparative negligence or in some other manner contributed to her own misfortune, a new trial must be granted. [Cits.]” Brooks, supra. Appellant contends that rule is applicable here thereby requiring the grant of his motion for new trial. We do not agree.

In addition to evidence indicating that prior and subsequent injuries aggravated the harm to appellant’s left shoulder, there was evidence that appellant observed appellee’s vehicle, with its headlights on and its left turn indicator operating, while 200 feet away, and saw appellee attempt to cross the line of traffic in front of appellant’s car. Although the evidence was conflicting whether the front of appellee’s vehicle was already protruding into appellant’s lane at the time appellant approached, appellant testified he noticed that the traffic ahead of him had slowed down ten miles an hour in reaction to appellee’s vehicle in the turn-only lane. This evidence presented a question for the jury to decide whether appellant’s behavior constituted negligence by failing to act so as to avoid the consequences of the active negligence of appellee, see Buice v. Atlanta Transit System, 105 Ga. App. 795, 797 (125 SE2d 795) (1962), and thus Tallent and Brooks, supra, are distinguishable in that there existed no evidence that the plaintiffs therein contributed to their own misfortunes through comparative negligence or otherwise. “When the rule concerning comparative negligence is involved in a case, the verdict of the jury cannot be set aside on the ground that the amount of the damages awarded is inadequate. [Cits.]” Powers v. Pate, 107 Ga. App. 25, 27 (1) (129 SE2d 193) (1962). The trial court did not err by denying appellant’s motion for new trial on this ground. See Wright v. Satilla Rural Elec. Co-op., 179 Ga. App. 230, 232 (345 SE2d 892) (1986).

4. Appellant contends the trial court erred by charging the jury on comparative negligence and the last clear chance doctrine. It is well established that a charge is proper if there is any evidence, however slight, on which to predicate it. Cale v. Jones, 176 Ga. App. 865, 868 (4) (338 SE2d 68) (1985). In view of the evidence set forth in Division 3, there was no error in the giving of the charges of which complaint is made.

5. Appellant enumerates as error the giving of the following charge: “I charge you that a loss of earnings can be recovered only if such loss is free from uncertainty and speculation. In order for the loss of pay to be recoverable it must be necessary for the plaintiff to prove that such work has been available to him. That he would have performed such work, and further, that such loss of earnings would not have occurred but for the injury. In other words, it is necessary for the plaintiff to prove first that he suffered a loss in a definite amount, and second, that the loss would not have occurred had he not been injured. Should the plaintiff fail to offer such proof he would not be entitled to recover for loss of earnings.”

We do not agree with appellant that the giving of this charge constituted reversible error. Lost wages and earnings cannot be recovered if the evidence permits the jury to no more than speculate or guess as to the amount of the loss. See Rosser v. Atlanta Coca-Cola &c. Co., 162 Ga. App. 503, 504-505 (1) (291 SE2d 109) (1982), rev'd on other grounds, 250 Ga. 52 (295 SE2d 827) (1982). That part of the charge concerning plaintiff’s proof that work had been available and that he would have performed it merely reflects that “there must nevertheless appear some evidence, either direct or circumstantial, tending to show what the plaintiff was capable of earning both before and after the injury.” Hunt v. Williams, 104 Ga. App. 442, 448 (4) (122 SE2d 149) (1961). Thus, if plaintiff had been unemployed and unable to establish his earning capacity, no recovery of damages for loss of earnings would be allowed. See Mathis v. Copeland, 139 Ga. App. 68 (228 SE2d 23) (1976). As to that part of the charge that plaintiff prove he suffered a loss in a “definite amount,” although appellant would interpret “definite amount” as meaning an amount precise in its calculated sum, the phrase could also be construed as an amount ascertainable in that it “definitely” exists. “It is not necessary, in considering a charge, to assume a possible, adverse construction.” Green v. Trevena, 142 Ga. App. 621, 622 (236 SE2d 775) (1977). See also Radney v. Levine, 75 Ga. App. 137 (2) (42 SE2d 644) (1947). Furthermore, in the context of the charge as a whole, in which the jury was twice instructed that “reasonable certainty” was the standard used to establish the value of plaintiffs lost earnings and that “some evidence” was all that was required in this matter, see generally Douglas v. Rinker, 134 Ga. App. 949, 950 (216 SE2d 629) (1975), the trial court’s charge, while arguably ambiguous, did not constitute reversible error. See Gibson Prods. Co. v. Rowe, 159 Ga. App. 529, 530-531 (284 SE2d 43) (1981).

6. In his final two enumerations, appellant contends the trial court erred by denying his motion for new trial. No reversible error having been found in the enumerated errors set forth above, and the denial of a motion for new trial on the general grounds being a matter addressed to the discretion of the trial court when, as here, there is some evidence to sustain the verdict, appellant’s remaining enumerations are without merit. See generally Commercial Artservices v. Buchtal Corp., 180 Ga. App. 305-306 (348 SE2d 768) (1986).

Judgment affirmed.

Birdsong, C. J., Deen, P. J., and Benham, J., concur. Carley, J., concurs in Divisions 1, 2, 3, 4, and 6 and in the judgment. McMurray, P. J., Banke, P. J., Pope, and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

I respectfully depart from Divisions 1 and 5 of the majority opinion, and Division 6 insofar as it relates to the subjects treated in Divisions 1 and 5.

1. The basis of the prayer for punitive damages was that defendant was operating his vehicle while intoxicated, rendering him less than safe to drive his vehicle, and that his intoxication was willful and wanton. The breath analysis of .28 percent alcohol in his blood was in excess of the .12 which constitutes a violation of OCGA § 40-6-391 (4). The officer who arrived at the scene and administered the breath test also testified defendant smelled of alcohol, was unsteady on his feet and was incoherent so that in his opinion defendant was a less safe driver.

The trial court charged on aggravating circumstances and on how driving under the influence might be a factor as follows: “Should you find from the evidence that the defendant was operating a motor vehicle under the influence of alcohol, and that his so driving contributed to the plaintiffs injuries, then I charge you that any evidence of his driving under the influence of alcohol may be considered by the jury along with all of the other evidence in this case.”

Since at least Hardwick v. Price, 114 Ga. App. 817, 821 (3) (152 SE2d 905) (1966), this Court and our Supreme Court have consistently held: “[I]t is no longer essential that the court give an instruction in the exact language of a request . . . The requirement of the law is satisfied where the court instructs the jury substantially upon the principles embodied in the request.” Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 18 (3) (195 SE2d 417) (1973). The key word is “substantial.”

The Supreme Court’s language in Moore v. Thompson, 255 Ga. 236 (336 SE2d 749) (1985) is clear and unequivocal: unjustified driving under the influence is, as a matter of law, an aggravating circumstance. The jury could not find otherwise. The Supreme Court recognized that the legislature has prohibited driving in such condition, so that doing so is contrary to law and therefore against public policy. Evidence of such driving thus establishes “wilful misconduct, wantonness, and that entire want of care which raises the presumption of conscious indifference to the consequences” necessary as a base for the award of punitive damages.

This is not to say that such a finding compels the award of punitive damages. That is the second question. OCGA § 51-12-5 leaves it to the jury to take this aggravating circumstance and award or decline to award punitive damages and, if so, the amount.

The trial court’s instructions failed to give due significance to such a finding as an aggravating circumstance. Instead, it relegated a finding of intoxicated driving to the mere status of other evidence which might or might not be regarded by the jury as an aggravating circumstance. The Supreme Court ruling is that driving under the influence alone is sufficient ground to impose punitive damages, and the jury was not so instructed. Hence, it was error to refuse the written request to charge which was apt, correct, pertinent and precisely adjusted to the case. See Slaughter v. Linder, 122 Ga. App. 144, 147 (176 SE2d 450) (1970).

2. As to Division 5, plaintiff contends correctly that Globe Motors v. Noonan, 106 Ga. App. 486 (127 SE2d 320) (1962), cited as authority for the charge, involves lost profits rather than earnings. Further, the second sentence of the charge and the first clause of the third sentence are not contained in Globe Motors and no authority was given for these statements asserted as law.

The prerequisite for determining lost profits and lost earnings are similar in that both are predicated on two crucial factors: proof of the amount and a showing that the loss resulted from the injuries sustained. See Keplinger v. Cook, 115 Ga. App. 540, 541 (1) (154 SE2d 765) (1967); Mathis v. Copeland, 139 Ga. App. 68, 69 (228 SE2d 23) (1976). But there is a substantial difference with respect to evidence of the amount. To recover for lost profits the damages must be proved definitely, Globe Motors v. Noonan, supra at 489, while lost earnings may be recovered if the proof is reasonably certain and not mere speculation or guesswork. Douglas v. Rinker, 134 Ga. App. 949, 950 (216 SE2d 629) (1975). The charge given was too restrictive and thus error. Whether it was harmful or not is another matter, which need not be addressed considering the posture of the case.

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

Decided December 4, 1987

Rehearing denied December 18, 1987

Steven D. Harris, Nancy P. Phillips, for appellant.

Glenn Frick, Sue K. A. Nichols, for appellee.


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

text:
    74523.
    CARVER v. THE STATE.
    (364 SE2d 877)
   McMurray, Presiding Judge.

Defendant was indicted for the offense of a terroristic threat. The evidence adduced at trial, construed most favorably to support the jury’s verdict, was as follows:

Defendant is the “Great Titan” in an organization known as the “Ku Klux Klan.” In his leadership capacity with this association, defendant organized a demonstration through a series of tape recorded messages of a political and racial commentary which were transmitted to interested persons by a telephone answering machine. Pursuant to his efforts, defendant assembled a group of followers on March 22, 1986, in the parking lot of “the Georgia Mountain Center in Gaines-ville[, Georgia],” where he and his associates clothed themselves in long white robes and tall white conical shaped hats. Defendant then directed the group to a location in the vicinity of Atlanta Street and Sycamore Street in Gainesville, Georgia. While marching to the locus of the demonstration, some of the demonstrators carried placards. Defendant carried a non-functional “replica of a Thompson sub-machine gun ...”

After the protesters arrived at the designated demonstration area, defendant disposed of the “submachine gun” replica and began encouraging his followers in their cause. Soon thereafter, a large group of people, which included local residents and vendors, gathered in the area of the demonstration. A number of people outside the KKK demonstration became agitated as a result of the demonstrators’ activities; and, despite the presence of a large contingent of law enforcement officers, derogatory comments were exchanged between the opposing groups.

The victim, a businessman, arrived in the area of the demonstration at about 12:00 to open his place of business. The victim observed the hostile environment and, in an attempt to relieve the tension, the victim approached defendant and asked him to lead the protesters from the area. Defendant did not comply, the demonstration continued and the victim withdrew. A few moments later, the victim approached defendant and said, “ ‘Why don’t you go ahead and leave because the people done got angry and I’m scared they are going to start a riot.’ ” In reply, defendant told the victim to “ ‘[g]et back or I’ll shoot, I’ll shoot . . .’” and “[defendant’s] hand went down in his right-robe area.” The victim then “backed up and began to yell at the policemen that [defendant] had a gun.”

From this and other evidence adduced at trial, defendant was found guilty of the offense of a terroristic threat. Defendant appeals. Held:

1. In his first two enumerations of error, defendant contends the trial court erred in quashing his subpoenas for the production of documents directed to various law enforcement agencies and to South-land Publishing Company, d/b/a The Times. In this regard, defendant argues that photographs relevant to his plea of “self-defense and provocation” were improperly withheld from discovery. Defendant also argues that photographs were withheld which were necessary for impeaching the State’s witnesses.

In response to the State’s and The Times’ motions to quash defendant’s subpoenas, the trial court ordered the State and The Times to produce to the court for an in camera examination all of the photographs requested by defendant. However, the trial court limited The Times’ burden of production to “all photographs showing defendant and [the victim] or either individual separately [and allowed The Times] to exclude any photographs taken after the arrest of defendant . . .” The State and The Times complied and, after an in camera inspection of these materials, the trial court provided defendant four photographs produced by the State for use at trial and found that none of the photographs produced by The Times were “relevant or material to the stated defense of self-defense.”

“ ‘(T)he appellant has the burden of showing he was denied material exculpatory information such that he was denied a fair trial.’ Kilgore v. State, 251 Ga. 291 (5) (305 SE2d 82) (1983). If the trial court performs an in camera inspection and denies the defendant access to certain information, on appeal the appellant has the burden of showing both the materiality and the favorable nature of the evidence sought. Welch v. State, [251 Ga. 197 (8) (304 SE2d 391]. Mere speculation that the items the appellant wishes to review possibly contain exculpatory information does not satisfy this burden. Id.” Williams v. State, 251 Ga. 749, 789 (312 SE2d 40).

In the case sub judice, defendant has failed to show that any relevant or exculpatory photographs remain in the State’s files or The Times’ records. He merely asserts that such photographs may exist and that his examination of all of the photographs in the State’s files and The Times’ records is necessary to satisfy his discovery request. We do not agree.

It is undisputed that The Times produced all photographs in its records depicting defendant or the victim for the in camera inspection. It is also undisputed that the State produced all photographs of the demonstration in its records for the in camera inspection. Contrary to defendant’s assertions, we find any photographs not depicting defendant or the victim irrelevant to defendant’s defenses to the offense of a terroristic threat or for the purpose of impeaching the State’s witnesses. Consequently, these enumerations of error are without merit as the photographs produced by the State and The Times were sufficient to satisfy defendant’s discovery request. Further, we find that the trial court’s in camera inspection procedure was an appropriate method of determining the relevance of this evidence at trial. See Byrd v. State, 171 Ga. App. 344, 345 (3) (319 SE2d 460) and Jinks v. State, 155 Ga. App. 925 (2) (274 SE2d 46).

2. Defendant contends in his third enumeration of error that the trial court “erred in not reprimanding the District Attorney for misstating the evidence to the jury in closing argument.”

“We reject this argument because it is well-settled that a sustained objection to improper argument of counsel cannot serve as the basis for reversal unless it is contemporaneous with a denied motion for mistrial, denied request to strike or denied request for curative instructions, none of which were made [by defendant’s counsel] below. See Williams v. State, 156 Ga. App. 17 (1) (274 SE2d 71) (1980); Carroll v. State, 147 Ga. App. 332 (7) (248 SE2d 702) (1978); Favors v. State, 145 Ga. App. 864 (2) (244 SE2d 902) (1978).” Keen v. State, 164 Ga. App. 81, 88 (7) (296 SE2d 91).

3. Next, defendant contends the trial court “erred in denying [his] motion to dismiss for selective prosecution.”

“In United States v. Berrios, [501 F2d 1207 (2d Cir., 1974)], the court said, ‘To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights . . .” ’ ” William W. Daniel, Ga. Criminal Trial Practice (1985 ed.) § 21-21.

Applying this principle in the case sub judice, we find no basis to support a claim for selective prosecution. There is no evidence showing that others committed the crime of a terroristic threat during the demonstration and there is no evidence indicating that the prosecution of defendant was undertaken for a retaliatory purpose. This enumeration of error is without merit. See Sabel v. State, 250 Ga. 640, 643 (300 SE2d 663); and Lee v. State, 177 Ga. App. 698, 699 (1) (340 SE2d 658).

4. In his fifth enumeration of error, defendant contends the trial court “erred in admitting tapes of political and racial commentary made by the Defendant on his telephone answering machine.”

The trial court allowed the State to introduce into evidence seven tape recorded messages which were prepared by defendant and transmitted to interested persons through defendant’s telephone answering machine. While these tape recordings were saturated with defendant’s political and racial commentary, defendant objected only to certain specified language in each of four tape recorded messages dated February 18, 1986, March 4, 1986, March 10, 1986, and March 22, 1986.

Defendant argues that the objected-to language has no relevance and that it was introduced for the purpose of influencing the jury. We do not agree. The objected-to language, considered in context, demonstrates racial overtones and shows defendant’s bent of mind and is relevant to the issue of defendant’s intent to terrorize. See Wood v. State, 255 Ga. 697, 698 (4) (341 SE2d 442). The trial court did not err in admitting the entire tape recorded messages into evidence. See also Shafer v. State, 191 Ga. 722, 727 (13 SE2d 798).

5. In his sixth enumeration of error, defendant argues that the trial court erred in allowing a Georgia Bureau of Investigation agent to testify that he had seen defendant at other Ku Klux Klan demonstrations with weapons. More specifically, defendant refers to the testimony of Special Agent Scott Curley who testified that he has observed defendant at other Ku Klux Klan “functions” in “possession of both automatic pistols, revolvers, shotgun, also some type of rifle.”

This evidence was relevant as it demonstrated defendant’s bent of mind to terrorize by displaying dangerous weapons at public demonstrations. See Wood v. State, 255 Ga. 697, 698 (4), supra; and Sport v. State, 253 Ga. 689 (1) (324 SE2d 184).

6. Defendant contends in his seventh enumeration of error that the trial court erred in allowing the State’s attorney to cross-examine defendant regarding the “hometowns” of his companion demonstrators. Defendant argues that this evidence “inflamed” the jury because “outsiders had come into their community and created an embarrassing incident.”

The State’s attorney had the right to make a thorough and sifting cross-examination of defendant. OCGA § 24-9-64. “[G]reat latitude should be allowed by the court where the purpose of the interrogation is to impeach or discredit the witness by showing his bias and interest in the case. [Cits.] . . . The discretion of the court in controlling the conduct of counsel towards an opposing witness will not be interfered with unless some gross outrage to the party, and resulting damage to his cause, clearly appear. [Cit.]” Griffin v. State, 18 Ga. App. 462 (2) (3) (89 SE 537).

In the case sub judice, the State contends the Ku Klux Klan demonstration in the victim’s “neighborhood” was not to protest drug related problems in the area, as alleged by defendant, but was to terrorize the occupants of that community “and antagonize them into a potentially hazardous . . . confrontation.” In this vein, the State argues that its cross-examination of defendant as to the “hometowns” of defendant’s companions was relevant to prove the “subjective intention” of defendant in conducting the demonstration.

Although we find the State’s reasoning far reaching, we find no prejudice to defendant which demands a new trial. See William W. Daniel, Ga. Criminal Trial Practice (1986 ed.), § 20-22. This enumeration of error is without merit.

7. In his eighth enumeration of error, defendant contends the trial court erred “in admitting evidence about the arrest and conduct of one Billy Roland several hours prior to the alleged incident forming the basis of [his] prosecution.” We do not agree. Defense counsel opened the door to this line of questioning by stipulating into evidence that Billy Roland was arrested on the day of the demonstration. See Brown v. State, 175 Ga. App. 246, 247 (3) (333 SE2d 124).

8. Defendant in his ninth enumeration of error contends the trial court “erred in admitting evidence of the effect of the demonstration on law enforcement and the cost of the demonstration to the police authorities.” Defendant argues that this evidence was irrelevant and “was calculated to inflame and prejudice the jury by conveying to the jurors the idea that the Defendant was interfering with police efforts to control illegal drug traffic ...”

While this evidence is irrelevant to the charge against defendant, we find no error since defense counsel opened the door to this line of inquiry upon his cross-examination of a local law enforcement officer. See Brown v. State, 175 Ga. App. 246, 247 (3), supra.

9. In his last enumeration of error, defendant contends that the evidence was insufficient to support the verdict. We do not agree.

Two witnesses testified and corroborated the victim’s testimony that defendant threatened him on the day in question. This evidence was more than sufficient to sustain defendant’s conviction for the offense of a terroristic threat under the standard of proof set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See OCGA § 16-11-37 (a).

Judgment affirmed.

Birdsong, C. J., Banke, P. J., and Benham, J., concur. Deen, P. J., concurs specially. Carley, Sognier, Pope and Beasley, JJ., dissent.

Deen, Presiding Judge,

concurring specially.

This case may demonstrate that if one plays with fire he is likely either to get burned or to be caught in a cross fire, or, as noted by the first chief judge of this court, Benjamin Harvey Hill, “[t]o shoot craps is to play craps.” Sims v. State, 1 Ga. App. 776, 777 (57 SE 1029) (1907). Cursory examination of the majority opinion, the dissenting opinion, and the record convinces me that the appellant may not have received a perfect trial but was fairly convicted, thus permitting me to concur in the judgment of the majority opinion only.

Beasley, Judge,

dissenting.

I respectfully dissent, as a new trial is required because of the trial court’s limitation on the subpoena duces tecum for the newspaper’s photographs and because of the irrelevant and inflammatory evidence admitted. The first issue is addressed in Division 1 and the second in Divisions 4, 5, 7 and 8 of the majority opinion. In so dissenting, I do not mean to concur in the ruling on the photographs subpoenaed from law enforcement authorities but simply acquiesce in it at this juncture. I do concur in Divisions 2 and 3. As to Division 9, since the presentation of evidence was reversibly flawed, the issue is moot.

Defendant was charged with making a terroristic threat to Jalasker Lyles with the purpose of terrorizing him, by threatening to commit a crime of violence upon him, that is, by threatening to shoot him. OCGA § 16-11-37 (a) defines the crime of terroristic threat as occurring “when [a person] threatens to commit any crime of violence . . . with the purpose of terrorizing another ... or in reckless disregard of the risk of causing such terror. . . .” The latter alternate is not involved here. The statute also provides that a conviction cannot be had on the uncorroborated testimony of the victim.

Thus three elements must be proved: that the statement (if it was a statement, as here) was made; that it was a terroristic threat; and that the maker intended to terrorize the subject of the threat. See Wilson v. State, 151 Ga. App. 501, 503 (6) (260 SE2d 527) (1979); Boone v. State, 155 Ga. App. 937, 939 (2) (274 SE2d 49) (1980).

1. A representative for the newspaper stated that there were “215 or so negatives and slides” of the occasion. The defendant advised the court that all of them were needed because at least some of them would be relevant to test the truth of the testimony of the alleged corroborating witnesses, who obviously were present, to possibly impeach the police officer and witnesses as to what happened and who was where when, and to confirm defendant’s version of the situation so as to support his defense that the statement, if made, was uttered in self-defense and for his own protection because of fear in the circumstances.

There would be no way to test the precise relevancy of the photographs in advance because defendant did not know how the state’s witnesses would describe the incident or how far beyond its immediacy into the whole demonstration event the court would allow the evidence to extend. Yet the photographs, by their very nature as described by the newspaper’s representative, “could well have been critical” to the purposes of impeachment and the corroboration of the defense. The quoted words state the test that was applied in Cofield v. State, 247 Ga. 98, 106 (3) (274 SE2d 530) (1981), another case involving the compulsory process issue. What is dispositive in the first place, however, is that the newspaper had no privilege which would guard these photographs from production for the purposes advanced here. Hurst v. State, 160 Ga. App. 830 (1) (287 SE2d 677) (1982). Defendant was denied access to arguably material evidence.

The problem is not solved by the in camera inspection. To begin with, the court could not in advance divine what would or would not be impeaching evidence.

In the second place, the court refused to look at all of the photographs sought. The lines of demarcation which the court drew, with respect to what had to be produced for its viewing and what could be withheld, left outside of its determination photographs which prima facie would have been relevant to one of these material purposes stated. The reconstruction of events, which was in fact assertedly shown by the State through testimony at the trial which followed, is often measurably aided by photographs, especially when taken simultaneously with the event. Memories fade and are warped by perspective.

As defendant has shown, the refusal here was especially harmful because so much emphasis was put by the State on what occurred outside of the presence of the defendant and the allegedly threatened person at the time of the confrontation and also much in advance of that incident.

Thirdly, what is the authority for an in camera inspection of these non-privileged negatives and slides? Neither Byrd v. State, 171 Ga. App. 344, 345 (3) (319 SE2d 460) (1984), nor Jinks v. State, 155 Ga. App. 925 (2) (274 SE2d 46) (1980), provide it. Byrd addresses the in camera procedure provided by law for protection of prosecution files when a Brady request is made for exculpatory materials. Jinks affirms denial of access to the arresting officer’s personnel file because defendant could show no relevancy to the issues on trial. It did not even mention an in camera inspection.

Moreover, how can “we find any photographs not depicting defendant or the victim irrelevant to defendant’s defenses to the offense of a terroristic threat or for the purpose of impeaching the State’s witnesses,” without an examination of the photographs which are admittedly a) in existence, b) in the custody of the newspaper, and c) depictions of the very event about which there was much testimony at trial? We cannot make such a judgment without viewing the depictions and comparing them with the evidence produced at trial.

Thus, as appellant urges, his Sixth Amendment right to compulsory process to secure relevant evidence, recognized in Washington v. Texas, 388 U. S. 14 (87 SC 1920, 18 LE2d 1019) (1967), was violated because arguably relevant and material evidence was foreclosed. See Cofield v. State, supra; Hurst v. State, supra.

2. The evidence discussed by the Court in the remaining divisions listed went far afield of proving the intent to terrorize Mr. Lyles when the statement was made as the two men confronted one another during the demonstration.

Tapes made of recorded telephone messages days and even weeks before the incident on trial, which messages were not even directed to the victim, only remotely suggested defendant’s intent when he made the statement “[g]et back or I’ll shoot, I’ll shoot.” If the racist telephone messages tended to prove that defendant intended to terrorize Mr. Lyles when the statement was made, their inflammatory nature outweighed their probative value because of the prejudicial effect they would have on the jury. That is the test, as applied in Wood v. State, 255 Ga. 697, 698 (4) (341 SE2d 442) (1986). Defendant’s intent at the time, which was amply ascertainable by evidence of the circumstances of the demonstration and the environment in which the statement was made, was the issue. Nor were these or any other evidence discussed herein evidence of “similar transactions” so as to be probative of defendant’s bent of mind or intent and admissible under that principle, which is set out, e.g., in Bacon v. State, 209 Ga. 261 (14) (71 SE2d 615) (1952); Felts v. State, 154 Ga. App. 571 (2) (269 SE2d 73) (1980).

The evidence that defendant had been seen at other demonstrations with weapons was totally without relevance to the issues involved in this case. Defendant was not charged here with a weapons offense. In addition, the undisputed evidence was that he did not have a weapon at the time he allegedly made the threat. Thus the evidence did not involve similar “prior criminal actions,” which is what Sport v. State, 253 Ga. 689 (1) (324 SE2d 184) (1985) stands for. Moreover, defendant and Mr. Lyles were strangers, so he could not be making the threat with the idea that he knew Mr. Lyles would fear that he had a weapon based on any previous knowledge Lyles had of defendant’s prior weapon-carrying. Thus the purpose on which the Court pins relevancy is non-existent here, and none other appears.

Evidence about the arrest and conduct of Billy Roland at a time much previous and at another location that day was not shown to have any relevancy whatsoever, except to inflame and draw attention away from the sole issues in the case. By agreeing to stipulate to the simple fact that Roland had been arrested, defendant did not agree to a full exploration of this event, which did not directly involve defendant and concerning which he was not on trial. The stipulation was made precisely for the purpose of averting such an excursion. Defendant here did not step into that territory, as did counsel in Brown v. State, 175 Ga. App. 246, 247 (3) (333 SE2d 124) (1985).

Decided December 18, 1987

Rehearing denied December 18, 1987

Sam G. Dickson, for appellant.

C. Andrew Fuller, District Attorney, Daniel A. Summer, Donald F. Chase II, Assistant District Attorneys, for appellee.

James C. Rawls, V. Robert Denham, Jr., Jennifer F. Weiss, amici curiae.

Nor did defendant open the door to evidence of the effect of the demonstration on law enforcement and the costs of it to the public, members of which sat on the jury deciding this leading demonstrator’s fate. This evidence is irrelevant, according to the majority, and with that I agree. Defendant had inquired of the officer on another subject entirely, that is, whether the area of the incident was a known area of drug traffic and police efforts there in that regard. This line of cross-examination did not lie in the same territory as that described above which the State elicited on redirect examination over objection.

Due to the vast amount of irrelevant and prejudicial evidence which the jury was permitted to consider, it is difficult to conclude that defendant’s trial was confined to whether or not he committed the offense of making a terroristic threat to Jalasker Lyles. For the reasons stated, the law requires a new trial.

        Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    74899.
    STRICKLAND v. THE STATE.
    (364 SE2d 872)
   McMurray, Presiding Judge.

Defendant, indicted as a repeat offender under OCGA § 17-10-7 (b), was convicted of robbery, OCGA § 16-8-40, for taking a .22 caliber rifle away from George Hill. He appeals. Held:

1. Defendant first challenges his sentence as a recidivist on the ground that his 1980 plea to aggravated assault was not entered with full constitutional warnings and waiver, in violation of Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) and Andrews v. State, 237 Ga. 66 (226 SE2d 597). This conviction was one of three cited in the indictment as forming the basis for the repeat offender charge. See Aldridge v. State, 158 Ga. App. 719, 721 (4) (282 SE2d 189). The other two, earlier ones for felony theft (1966) and burglary (1970) were not challenged.

The 1980 plea transcript shows that defendant was represented by counsel and pled guilty to two charges, aggravated assault and a reduced charge of criminal trespass. It was a negotiated plea. Among other things, the court ascertained that defendant knew he had a right to a jury trial and desired to waive it.

In our opinion, the record was sufficient to demonstrate that defendant freely and voluntarily entered the 1980 guilty plea with an understanding of the consequences. Defendant clearly understood and waived his right to a jury trial. He complains that he was not advised of other rights associated with a jury trial, most notably, the right against self-incrimination, the right to confront witnesses and the right to assistance of counsel. However, defendant does not point out how he was prejudiced by the failure of the trial court to advise him of those rights. Defendant was represented by counsel at the guilty plea hearing and the transcript of the hearing shows that he discussed “the matter” with counsel before entering the plea. In addition, the record shows that defendant was “seasoned,” having been tried by juries on two previous occasions. Given these facts, it is our view that any error in failing to advise defendant of his other rights was harmless beyond a reasonable doubt. Goodman v. Davis, 249 Ga. 11, 14 (287 SE2d 26).

2. Defendant contends the trial court erred in curtailing the cross-examination of the victim. We disagree. Put in context, defense counsel’s cross-examination was merely an attempt to elicit evidence concerning specific acts of violence by the victim against third parties. Such evidence is inadmissible. McFadden v. State, 171 Ga. App. 447, 448 (2) (319 SE2d 878); Guevara v. State, 151 Ga. App. 444, 448 (5) (260 SE2d 491). The trial court properly prohibited defense counsel from doing indirectly what he was prohibited from doing directly.

3. Defendant also contends the trial court erred by allowing a witness, Freeman, to testify about certain statements made by defendant on the day after the robbery. This contention is without merit. The evidence was admissible “to show motive, or to show a course of conduct pointing toward and leading to the crime or to the concealment of the crime or the identity of the perpetrator thereof . . .” Spurlin v. State, 228 Ga. 2, 5 (4) (183 SE2d 765); Graham v. State, 171 Ga. App. 242, 254 (14) (319 SE2d 484).

4. In his final enumeration of error, defendant asserts the trial court erred by refusing to grant a new trial as a consequence of juror irregularity. (During a break in the trial, the juror handed the prosecutor a written joke about lawyers. The juror did not conceal his act. It took place in the courtroom in the presence of the trial judge and defense counsel.)

In our opinion, any irregularity in the conduct of the juror was inconsequential; it did not require the grant of a new trial. Smith v. State, 218 Ga. 216, 222, 223 (126 SE2d 789). Moreover, the testimony of the juror amply demonstrated that defendant was not prejudiced or harmed by the irregularity. See Hardy v. State, 242 Ga. 702, 704 (3) (251 SE2d 289). Compare Lamons v. State, 255 Ga. 511 (340 SE2d 183).

Judgment affirmed.

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

Beasley, Judge,

concurring in part and dissenting in part.

I respectfully dissent with respect to Divisions 1 and 2 of the opinion of the majority; and I fully concur in Divisions 3 and 4.

1. The question was presented to the trial court by the filing of a “Notice of Objection to or Demurrer to Count Three of the Indictment.” Prior to trial, the court conducted a motions hearing on mis and other issues, and after considering the transcript of that plea, denied the motion, thereby finding that the plea procedure did not fail in the particulars claimed by defendant.

After the jury returned its guilty verdict on the robbery count, the court sentenced defendant pursuant to the recidivist count, based in part on the 1980 conviction which had been introduced in evidence. No objection to it was then voiced by defendant, which would ordinarily be the proper time for such. Callahan v. State, 148 Ga. App. 555, 556 (251 SE2d 790) (1978); Aldridge v. State, 158 Ga. App. 719, 722 (282 SE2d 189) (1981). However, defendant was not required to object again here, because the matter had already been ruled on adversely to him, at the outset of the trial, pursuant to his foresighted inquiry which had allowed the state to marshal its evidence and the court to take the issue under advisement.

On appeal defendant complains that he was not advised at the plea-taking of certain consequences of his plea, namely, that he was waiving certain constitutional rights. This collateral attack is permissible. See Callahan v. State, supra at 556 (3). He lists the rights to a jury trial, to confront witnesses, to subpoena witnesses, to testify and offer other evidence, to assistance of counsel during trial, not to incriminate himself, to be presumed innocent, and to be informed of the maximum possible sentence. These were all raised below except there was no complaint about the rights to subpeona witnesses and to testify and offer other evidence, so I do not address those.

The 1980 plea transcript shows that there was no indication that defendant had been apprised by anyone of the rights listed above other than the right to a jury trial.

For a guilty plea to be valid, it must be shown that “(1) the defendant has fully and voluntarily entered the plea with (2) an understanding of the nature of the charges against him and (3) an understanding of the consequences of his plea.” Goodman v. Davis, 249 Ga. 11, 13 (287 SE2d 26) (1982). Our Supreme Court recognized that “[t]he significance of requiring that a guilty plea be knowing and voluntary is magnified by the fact that a number of constitutional rights are involved in a waiver that takes place when a plea of guilty is entered. ... In Boykin the court noted that the right against self-incrimination, the right to trial by jury and the right to confront one’s accusers are all waived. ...” Id. In that case the focus was on the right to remain silent, or against self-incrimination. The Court concluded that failure to specifically advise of this right did not per se prevent the plea from being founded on an understanding of the consequences. It took into account that defendant did not allege any prejudice from the failure, was “a seasoned defendant,” was represented by counsel, and other factors which satisfied it that the failure was harmless beyond a reasonable doubt in that case.

Applying the same analysis here; although the mentioned factors are present, the absence of any assurance that defendant was apprised of so many of the rights to which he was entitled prevents the conclusion that defendant validly waived them. Consequently, the sentence as to Count 3 should not stand even if the remaining enumerations were rejected. In reaching this decision, guidance is derived from the standards set out in the following cases: State v. Germany, 245 Ga. 326 (265 SE2d 13) (1980); Andrews v. State, 237 Ga. 66 (1) (226 SE2d 597) (1976); Roberts v. Greenway, 233 Ga. 473 (211 SE2d 764) (1975). See also Council of Superior Court Judges of Georgia, Criminal Benchbook/Ga. Superior Courts, July 1981, p. 62 et seq.

2. Defendant complains of the trial court’s refusal to allow cross-examination erf Hill concerning Hill’s statements that he had not used guns on anyone.

Defendant did not dispute that on the night in question he had been in an altercation with victim Hill. His claim was that, instead of initiating the conflict as claimed by Hill, defendant was jumped and assaulted by Hill with the rifle, which defendant then removed from Hill’s possession and retained, resulting in the robbery charge. Defendant, who is white, admitted calling Hill derogatory racial names. The prosecution’s theory was that defendant assaulted Hill due to his hatred for blacks. Defendant’s theory of defense was that he merely removed the gun from Hill in order to protect himself and that he meant to return the rifle later, thus setting up the defense of justification. OCGA §§ 16-3-20; 16-3-21.

Prior to the start of trial, pursuant to the state’s motion in limine, a hearing was held regarding defendant’s right to elicit evidence of other violent acts of the victim, either as proof of his reputation for violence or as impeachment. At that time, the court preliminarily granted the state’s motion, but reserved defendant’s right to make a proffer out of the jury’s presence as to other acts or matters of impeachment.

After Hill had testified and had been partially cross-examined, defendant made his proffer. Two witnesses were called — Dean and Long. Dean testified that he had known Hill for 18 years. He knew of an incident in which Hill shot at another. Long stated that he had witnessed Hill shoot at a car full of kids who had called him racial names. Because the proffer was taking an undue amount of time, the court directed defendant to ask Hill specific questions and the court would rule, seriatim.

Thereafter, while Hill was being further cross-examined, he was asked the following: “Your statement is you never had to use a gun against nobody? A. I haven’t yet.” Hill then stated that he had never owned another .22, having bought the one in question the previous year. Hill was asked questions about whether he would have shot at those persons who recently stole a rototiller from him, if he had been present. He testified “Oh, I don’t shoot nobody.” When defendant’s counsel attempted to pursue this so as to use the impeaching evidence if the witness did not impeach himself, the state objected to the line of questioning and the court sustained the objection.

Defendant moved for a mistrial because of the court’s restriction of his cross-examination of Hill, on the ground that Hill had made the statement “I don’t shoot nobody” and defendant had been prevented from confronting him with incidents showing the contrary. The motion was denied.

At the close of the trial, defendant tendered into the record numerous accusations of Hill for acts of violence, including a 1971 charge of shooting seven holes into an occupied automobile and a 1974 charge of pointing a .22 rifle at another. The 1971 charge resulted in an acquittal and the 1974 charge was resolved by entry of a nolle prosequi because of the prosecuting witness’ recommendation. The purpose of this tender was to perfect the record, counsel stating, “. . . I was going to put in a list of incidents where Mr. Hill says I haven’t shot anybody. I wanted to cross-examine him further about that statement and I wanted to put in somehow it or a list of incidents that I wanted to talk to him about where he had shot somebody. . . . [A] 11 I am trying to do is preserve the record on what I contend I was going to ask him about.”

“Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions in memory, but the' cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.” Davis v. Alaska, 415 U. S. 308, 316 (94 SC 1105, 39 LE2d 347) (1974), quoted in Hines v. State, 249 Ga. 257, 259 (2) (290 SE2d 911) (1982).

A witness may be impeached by disproving facts testified to by him. OCGA § 24-9-82. Here, defendant proffered to the court one witness who had seen Hill shoot into an occupied automobile and one witness who knew of another shooting incident along with two accusations alleging pointing and shooting a weapon at another. While the accusations were not admissible evidence, they were not tendered as such, but only to show other incidents about which defendant wanted to cross-examine Hill. The fact that Hill was not convicted of these two incidents did not preclude defendant’s questioning Hill about them in an effort to impeach him.

In Lumpkin v. State, 151 Ga. App. 896 (1) (262 SE2d 208) (1979), a defendant on trial for robbery took the stand and stated that he had never robbed a convenience store. He was then questioned about an outstanding indictment for robbery on which he had not yet been tried. This was held to be proper impeachment. In Hammond v. State, 169 Ga. App. 97 (311 SE2d 523) (1983), a defendant accused of D.U.I. and other traffic offenses took the stand and testified that he did not ride his motorcycle when he had been drinking. The state was allowed to introduce evidence of a prior alcohol-related motorcycle accident involving defendant.

Here, the limitation of cross-examination complained of is not that defendant was not allowed to show the victim’s general character for violence, see McFadden v. State, 171 Ga. App. 447, 448 (2) (319 SE2d 878) (1984), but that defendant was not allowed to ask further questions about the victim’s statement that he had never shot at anyone. If the questions had been allowed, two results were possible: Hill could have admitted the prior shooting incidents, impeaching himself and buttressing defendant’s justification defense, or Hill could have denied them, giving defendant the opportunity to call Dean and Long and perhaps others to testify to shooting incidents, thereby impeaching his accuser by this alternate method.

Because the state’s case depended greatly on the testimony of Hill, it was error for the court to restrict the cross-examination of him. Under these circumstances, it cannot be said that the error was harmless. See Hooper v. State, 181 Ga. App. 645, 647 (1) (353 SE2d 843) (1987).

I am authorized to state that Judge Carley joins this opinion as to Division 2 of the majority opinion and Judge Benham joins as to Divisions 3 and 4 of the majority opinion.

Decided December 4, 1987

Rehearing denied December 18, 1987

Roger L. Curry, Roland R. Castellanos, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.


author: Benham, Judge.

text:
    74466.
    SOFET v. ROBERTS.
    (364 SE2d 595)
   Benham, Judge.

Appellant Sofet purchased a used 1979 Mercedes Benz 280SE that appellee Roberts allegedly had imported into the United States. Although appellant did not purchase the vehicle from Roberts, he bought it “under the belief and information that the original importer had conformed to all State and Federal laws and that the vehicle could be properly licensed, titled, registered and insured in the State of Georgia.” Asserting he was damaged by appellee’s failure to bring the car into compliance with the applicable standards, appellant filed suit. In a pre-trial order, the issues were narrowed to breach of contract and .negligence. Concluding that no privity of contract existed between the parties, the trial court granted appellee’s motions to dismiss and for judgment on the pleadings. This appeal followed.

1. Appellant argues that matters outside the pleadings were considered, thereby converting appellee’s motion for judgment on the pleadings into one for summary judgment (see OCGA § 9-11-12 (c)), and that he was not given the requisite 30 days from the date of service of the motion in which to respond to the motion. See OCGA § 9-11-56; Rule 6.2 of the Uniform Superior Court Rules. Since there is nothing in the trial court’s order or in the record that reflects that the trial court considered matters outside the pleadings, we cannot join in appellant’s conclusion. See Thigpen v. Johnson, 169 Ga. App. 410 (2) (313 SE2d 121) (1984).

2. “ ‘Under the Civil Practice Act a motion to dismiss a complaint for failure to state a claim upon which relief may be granted should not be granted unless averments in the complaint disclose with certainty that [plaintiff] would not be entitled to relief under any state of facts that could be proven in support of the claim.’ [Cit.]” Ledford v. Meyer, 249 Ga. 407 (2) (290 SE2d 908) (1982). A similar standard must be met to justify the grant of a judgment on the pleadings. See Bergen v. Martindale-Hubbell, 176 Ga. App. 745 (1) (337 SE2d 770) (1985). In the case at bar, appellant attempted to set forth a breach of contract claim. Since privity of contract must exist between parties in order to maintain a suit on the contract (Stein Steel &c. Co. v. Goode Constr. Co., 83 Ga. App. 821, 822 (65 SE2d 183) (1951)), and there is no evidence of the existence of a contract between appellant and appellee, it was not error to grant the motions to dismiss and for judgment on the pleadings to appellee on the contractual claim.

In his negligence claim, appellant maintains that appellee, as importer of the vehicle, had a duty under federal and state law to modify the car in order to meet applicable standards and that appellee’s breach of that duty injured appellant. OCGA § 51-1-6 provides: “When the law requires a person to perform an act for the benefit of another . . . although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.” It is clear from the pleadings, however, that appellant did not allege that appellee’s negligence caused appellant damage to his person or property but that appellant sought damages “ ‘attendant to his receiving a vehicle not up to the standards that he contracted to purchase [from a third party]; he simply sued for loss of the benefit of his bargain.’ [Cit.] Under these particular circumstances, ‘such damages are not recoverable in negligence. [Cits.]’ ” Waller v. Transworld Imports, 155 Ga. App. 438 (1) (271 SE2d 1) (1980). “[I]n the absence of an accident, there can be no action in negligence to recover the loss of the economic value of a defective product, unless there is some personal injury or damage to other property.” Vulcan Materials Co. v. Driltech, 251 Ga. 383 (1) (306 SE2d 253) (1983). See also Long v. Jim Letts Olds., 135 Ga. App. 293, 295 (217 SE2d 602) (1975). It was not error to grant appellee’s motions to dismiss and for judgment on the pleadings on appellant’s negligence claim.

3. Appellant contends he asserted a prayer for equitable relief which should have survived the dismissal of his legal claims. The only equitable relief appellant sought was for rescission of the contract. Inasmuch as we have agreed with the trial court that no privity of contract existed between appellant and appellee, the trial court did not err in dismissing that portion of appellant’s complaint which sought rescission.

Decided December 17, 1987

Rehearing denied January 4, 1988

Thomas W. Tobin, Valerie G. Tobin, for appellant.

Joseph E. Cheeley III, for appellee.

Judgment affirmed.

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