author: Per curiam. Beasley, Chief Judge,

text:
    A96A1289.
    FISHER et al. v. TOOMBS COUNTY NURSING HOME.
    (479 SE2d 180)
   Per curiam.

Mildred Fisher (hereinafter referred to by her maiden name of Stewart) appeals the trial court’s grant of summary judgment to the Toombs County Nursing Home (Nursing Home) on various claims concerning its care and its discharge of T. C. Fisher, allegedly her husband, who was a patient.

On October 31, 1980, Fisher married Stewart in West Palm Beach, Florida. Several years after their marriage, Fisher’s health deteriorated, and he was ultimately placed in the Nursing Home in order to be closer to his extended family. Undisputed evidence indicates that Fisher was competent at the time he entered the facility, and he subsequently signed an admissions agreement with the Nursing Home. Stewart agreed to be financially responsible for all expenses Fisher incurred at the Nursing Home that were not covered by Medicaid or other sources. She continued to live in Florida but visited Fisher at the Nursing Home every two weeks until his discharge.

In 1989, Jonathan Fisher, Fisher’s son from a former marriage, received court appointment from the Toombs County Probate Court to oversee his father’s affairs. The wrong probate court form was used, and the form order named Fisher as the temporary administrator of his father’s estate rather than as his guardian. Immediately after permanent letters of administration were issued, Stewart notified the Nursing Home that she disputed the son’s assertion that he was properly appointed as his father’s guardian. She filed a petition contesting the appointment, and the áppointment was declared a nullity in May 1993.

In February 1992, Fisher broke his elbow when he was dropped by one of the Nursing Home’s orderlies, who was transferring Fisher from his wheelchair to his bed. Thereafter, Fisher was discharged and released to his son’s care. The Nursing Home did so without informing Stewart. Fisher was moved to a facility in Michigan near his son’s home.

Stewart filed the underlying action in four counts: negligence and loss of consortium based upon the injuries Fisher sustained in his fall, breach of contract, and intentional infliction of emotional distress resulting from Fisher’s release from the facility without Stewart’s knowledge or consent.

The Nursing Home moved to dismiss all counts based, in part, on the assertion that Fisher and Stewart had never been validly married due to an unresolved prior marriage so that she lacked standing to assert the claims of negligence and loss of consortium. The trial court transformed the motion to dismiss into a motion for summary judgment and granted it, based largely on the court’s determination that, as a matter of law, the marriage of Fisher and Stewart was invalid.

1. First, Stewart asserts that the trial court erred in determining that her marriage was invalid, thus precluding her standing to pursue the negligence and loss of consortium claims. In addition to other evidence, the Nursing Home filed the affidavit of Louvern Allen Fisher averring that she had married Fisher in June 1950 in Dade County, Florida, and that she “had never undertaken to obtain a divorce” from him. In response, Stewart produced a certified copy of her marriage certificate. Other evidence reflects that Stewart and Fisher considered themselves to be married, e.g., they cohabitated as husband and wife subsequent to their marriage ceremony, and Fisher was insured under Stewart’s policy as her spouse.

Marriage being considered a civil contract, its validity will be judged by the law of the forum in which it was made, in this case Florida. Gen. Elec. Credit Corp. v. Home Indem. Co., 168 Ga. App. 344, 349 (309 SE2d 152) (1983) (under the rule of lex loci contractus, the validity, nature, construction, and interpretation of a contract are governed by the substantive law of the state where the contract was made).

Under Florida law, when one spouse is alleged to have married a second individual while still married to someone else, the subsequent marriage is presumed to be valid. “The presumption in favor of the validity of the subsequent marriage formally entered into is so great that in the absence of competent proof to the contrary it is to be assumed that the previous marriage has been dissolved either by death or legal action.” Grace v. Grace, 162 S2d 314, 317 (Fla. 1964). This presumption in favor of the second spouse is “one of the strongest presumptions known to the law” and “[w]hile the [party attacking the marriage] is not required to eliminate every remote possibility that a divorce might have been secured by [the spouse in question], it is necessary that [the party attacking the second marriage] tender evidence which when weighed collectively establishes the absence of a reasonable probability that [the spouse in question] actually secured the divorce.” Teel v. Nolen Brown Motors, 93 S2d 874, 876 (Fla. 1957).

The trial court erroneously determined that Fisher’s marriage to Stewart was not valid based on an unresolved prior marriage. A question of fact requiring jury resolution exists as to the sufficiency of the evidence to rebut the strong presumption of validity accorded Stewart’s marriage under Florida law. See Miller v. Miller, 258 Ga. 168, 170, n. 6 (366 SE2d 682) (1988) (under Georgia law, a jury determines whether a presumption has been rebutted); see also OCGA § 24-4-20 (“[p]resumptions of fact are exclusively questions for the jury”). Accordingly, summary judgment was not warranted on Stewart’s claim of negligence and loss of consortium.

2. Second, Stewart enumerates as error the summary judgment on her claim that the Nursing Home breached its contract by discharging Fisher without first contacting her.

An agreement may consist of multiple documents. Baker v. Jellibeans, Inc., 252 Ga. 458, 460 (314 SE2d 874) (1984). The entire agreement at issue in this case consists of (1) the agreement executed by the Nursing Home and Fisher in which he designates Stewart as the “Responsible Party,” and (2) the statement of services executed by the Nursing Home administrator and Stewart as the “Responsible Party,” whereby she acknowledges understanding the rules and regulations of the Nursing Home. Stewart’s health benefits from her job covered Fisher’s care in the Nursing Home.

Fisher had wanted to go to the Nursing Home in Toombs County to be close to his other relatives, but Stewart’s employment was still in Fort Lauderdale and she maintained her residence there.

By signing this document, Stewart agreed to serve as the Responsible Party, and the Nursing Home’s signature indicates its acceptance of her in this role. Stewart also impliedly agreed to abide by those rules, including the rule that she be financially responsible for Fisher’s debts to the Nursing Home. Her agreement to be financially responsible provides her with the “legal interest” in the contract required by OCGA § 9-2-20 (a).

She is not a third-party beneficiary under OCGA § 9-2-20 (b). She is instead a promisor, i.e., the “Responsible Party,” and Fisher the beneficiary of her obligations under the contract. She thus has privity and standing to sue the Nursing Home. Stewart gave consideration — her promise to be financially responsible for Fisher’s care — in exchange for care of her husband and the implied right to have notice of significant actions relating to Fisher which the Nursing Home was taking.

Even if all the benefits of the contract were construed to flow to Fisher, that fact alone would not deprive Stewart of standing. Consideration need not be a benefit accruing to the promisor, but may be a benefit accruing to another. See OCGA § 13-3-42 (d); Owens v. Svc. Fire Ins. Co. &c., 90 Ga. App. 553, 556 (1) (83 SE2d 249) (1954).

The contract implied a duty , for the Nursing Home to notify Stewart of Fisher’s discharge. An implied term in an agreement exists where it is reasonable and necessary to effect the full purpose of the contract and is so clearly within the contemplation of the parties that they deemed it unnecessary to state. Ellis v. Brookwood Park Venture, 161 Ga. App. 242, 243 (288 SE2d 308) (1982). Stewart and the Nursing Home could both reasonably contemplate that she should be notified of Fisher’s planned discharge inasmuch as she was both his wife and the Responsible Party under the agreement. “In deciding whether to imply promises or duties to the terms of a contract, ‘ “(t)he introduction of an implied term into the contract of the parties . . . can only be justified when the implied term is not inconsistent with some express term of the contract and where there arises from the language of the contract itself, and the circumstances under which it was entered into, an inference that it is absolutely necessary to introduce the term to effectuate the intention of the parties.” ’ [Cits.] Consequently, though courts are generally reluctant to make contracts for the parties, they will imply promises or duties when justice, good faith, or fairness so demand.” (Emphasis omitted.). Higginbottom v. Thiele Kaolin Co., 251 Ga. 148, 149 (1) (304 SE2d 365) (1983) (citing 11 Williston on Contracts, 3rd ed,, p. 34, § 1295; 3 Corbin on Contracts, §§ 541, 561). Stewart’s situation fits these criteria, and the notice requirement should accordingly be implied in this contract.

As a matter of law, this contract also imposed upon each party a duty of good faith and fair dealing in the performance and completion of their respective duties and obligations. Toncee, Inc. v. Thomas, 219 Ga. App. 539, 543 (4) (466 SE2d 27) (1995). “Good faith” is a shorthand way of saying substantial compliance with the spirit, and not merely the letter, of a contract. Crooks v. Chapman Co., 124 Ga. App. 718 (185 SE2d 787) (1971); OCGA § 13-4-20. A jury could find that the Nursing Home’s failure to notify Stewart was not in the “spirit” of the contract and was therefore not in good faith.

The Nursing Home’s contention that Stewart was not a party to the contract suggests that it could not have demanded payment of Fisher’s debts from her, but there is no indication Stewart could have denied the obligation. Fisher’s residence and care were dependent on Stewart’s continuing payment for these services. The Nursing Home cannot have it both ways, maintaining on the one hand that for purposes of looking to Stewart for payment, she was contractually obligated as the “Responsible Party,” but as to any obligations of the Nursing Home, even those implied terms of good faith and fair dealing imposed under every contract such as giving Stewart notice, no contract existed.

Also unresolved is the effect, on the contract issues, of the probate judge’s issuance of letters of administration to Fisher’s son while Fisher was still alive; guardianship papers were apparently intended instead. The papers themselves are a nullity, but the fact that some attempt was made to have the son appointed guardian at least raises a factual issue as to Fisher’s competence. The Nursing Home administrator maintained that Fisher wanted to leave with his son, but whether he was competent to make that decision is a factual determination not appropriate for summary proceedings. The Nursing Home administrator knew that Fisher had designated Stewart as the “Responsible Party,” and that she had agreed to serve in that capacity; she also knew that Fisher’s competency was in question. The Nursing Home administrator’s deposition testimony, that the probate judge told her that the “guardianship papers” gave the son the power to have the father discharged with or without his consent, is hearsay allegedly relating an ex parte conversation the administrator had with a now-deceased judge.

3. In her third enumeration, Stewart claims that the trial court erred in entering summary judgment on her claim for intentional infliction of emotional distress caused by the Nursing Home’s discharge of her husband without her knowledge.

Four elements must be present to support a claim of intentional infliction of emotional distress: “(1) [t]he conduct must be intentional or reckless; (2) [t]he conduct must be extreme and outrageous; (3) [tjhere must be a causal connection between the wrongful conduct and the [plaintiff’s] emotional distress; [and] (4) [t]he emotional distress must be severe.” (Citations and punctuation omitted.) Clark v. Arras, 212 Ga. App. 695, 696 (2) (443 SE2d 277) (1994). “Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.” Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 706 (2) (409 SE2d 835) (1991).

By all accounts, Fisher was lucid at the time of his discharge and willingly agreed to leave the Nursing Home in the care of his son. While the Nursing Home was aware that Stewart disputed the validity of his appointment as Fisher’s guardian, the Nursing Home contacted the probate court that issued the letters to determine their effect. After this contact, the Nursing Home proceeded with the discharge. In light of the above, the trial court did not err in finding that the Nursing Home’s conduct in discharging Fisher without Stewart’s knowledge lacked the element of outrageousness or egregiousness necessary to support a claim for intentional infliction of emotional distress.

Judgment affirmed in part and reversed in part. Smith and Ruffin, JJ., concur.

Beasley, C. J., McMurray, R J., Pope, P. J., and Johnson, J., concur as to Divisions 1 and 2 and dissent as to Division 3. Birdsong, P. J., Andrews and Blackburn, JJ., concur as to Divisions 1 and 3 and dissent as to Division 2.

Beasley, Chief Judge,

concurring in part and dissenting in part.

I concur fully in Divisions 1 and 2 but respectfully dissent as to Division 3.

The count on intentional infliction of emotional distress also requires jury resolution under the evidence favorable to Stewart. If believed, the nursing home released Stewart’s husband after merely calling the probate judge, whose response is rank hearsay and thus not probative. Sarantis v. Kroger Co., 201 Ga. App. 552, 553 (411 SE2d 758) (1991). The nursing home made no further check, gave no notice, and obtained no forwarding address, even though the home knew that Stewart was the patient’s wife, that she visited about every two weeks from out of state, and that she was financially responsible for his care.

It is true that “[wjhether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.” Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 706 (2) (409 SE2d 835) (1991). But as recognized in that case, in which the Supreme Court reversed the grant of summary judgment to defendant, “If the evidence shows that reasonable persons might find the presence of extreme and outrageous conduct and resultingly severe emotional distress, the jury then must find the facts and make its own determination.” Id. In reviewing this case, which is from a grant of summary judgment, we must draw all reasonable inferences against the movant and in favor of the party opposing the motion. Jonesboro Tool & Die Corp. v. Ga. Power Co., 158 Ga. App. 755, 758 (282 SE2d 211) (1981).

There is evidence to support the four elements of the tort, as outlined in the case of Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 230 (1) (335 SE2d 445) (1985):

1. The conduct was intentional or reckless in that the nursing home administrator, with full knowledge of Stewart’s relationship to the questionably competent elderly patient, did not inform her of the action to be taken or obtain information as to where Stewart could find him. “Heartless” is an apt term accepted in Bridges. Id. at 230. Nor did the administrator take proper steps to assure that the person to whom she released the patient was authorized to take charge of him, knowing the patient was not capable of caring for himself.

2. In considering whether this was extreme and outrageous, the relationship of the parties (the nursing home had physical control of Stewart’s husband), the defendant’s awareness of the victim’s particular susceptibility (the nursing home took no steps to inform the patient’s wife of his whereabouts), and the severity of the resultant harm (Stewart was not told until she called to check on him that he was gone, and she never saw her husband again once he was removed to Michigan) are appropriate to take into account. Trimble v. Circuit City Stores, 220 Ga. App. 498, 499-500 (469 SE2d 776) (1996). The law does not, in the circumstances of this case, preclude the finding that the nursing home’s actions were “ ‘of such serious import as to naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress.’ [Cit.]” (Emphasis in original.) Gordon v. Frost, 193 Ga. App. 517, 521 (388 SE2d 362) (1989). For all she knew, her husband may have thought that she abandoned him. “Once the evidence shows that reasonable persons might find the presence of extreme or outrageous conduct, the jury must find the facts and make its own characterization.” Id. Some, but not all, claims will be found “ ‘not to rise to the requisite level of outrageousness and egregiousness as a matter of law.’ ... [Cit.]” Clark v. Arras, 212 Ga. App. 695, 696 (443 SE2d 277) (1994); Yarbray, supra at 706. Like Gordon, Yarbray, Trimble, and McCoy v. Ga. Baptist Hosp., 167 Ga. App. 495, 498-499 (2) (306 SE2d 746) (1983), this is not one of them.

3. Once he was taken to Michigan, Stewart attempted to find him -but was unsuccessful. Whether her endurance of this anguish was caused in whole or in part by the nursing home’s actions is a jury question, as it cannot be said as a matter of law that the nursing home’s actions were.not a cause or too remote a cause. See OCGA § 51-12-9; Jones v. Central of Ga. R. Co., 192 Ga. App. 806, 807 (386 SE2d 386) (1989).

4. The severity of the distress is qualitative and quantitative and cannot be precisely measured. Although the nursing home’s actions were not such as would terrify or frighten, a jury could find they were sufficiently insulting as naturally to humiliate or embarrass Stewart. See Bridges, supra at 229. As adopted in Bridges and in Yarbray, supra at 706, emotional distress includes “‘all highly unpleasant mental reactions such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea.’ ” Bridges, supra at 230, quoting Restatement (Second) of Torts, § 46 (1), comment j. When extreme, it warrants liability. Id.

Decided December 5, 1996.

Lecora Bowen, for appellant.

M. Scott Barksdale, for appellee.

The evidence thus far developed does not show that Stewart’s claim in this count is one of the “fictitious, inflated or trivial claims” against which the court of law must guard by circumscription. See Moses v. Prudential Ins. Co. &c., 187 Ga. App. 222, 224 (369 SE2d 541) (1988).

I am authorized to state that Presiding Judge McMurray joins in this opinion.

       “In the eyes of our law, marriage is a civil contract.” Brown v. Ga.-Tenn. Coaches, 88 Ga. App. 519, 529 (77 SE2d 24) (1953).


source: Caselaw Access Project

author: Beasley, Chief Judge. Blackburn, Judge,

license: Public Domain

text:
    A96A1299.
    FIRST UNITED CHURCH, INC. et al. v. UDOFIA et al.
    (479 SE2d 146)
   Beasley, Chief Judge.

The First United Church, Inc., d/b/a Sanctified Mount Zion Church of Nigeria in the United States (“church”), along with several of its native Nigerian members, Esenyie, Emah, Ibanga, and Udo, appeal the entry of default judgment in the sum of $500,000 against them jointly and severally in favor of each of the plaintiffs/appellees, plus $10,800 in special damages to plaintiff/appellee George. Defendant Umanah is not an appellant, and thus the judgment stands unreviewed as to him. Two former members and four non-members of the church, all of whom are natives of Nigeria, Udofia, Massodi, Effiong, Akpan, Etim, and George brought suit alleging the defendants slandered them and conspired to continually defame them.

The complaint alleged that in the course of a New Year’s Eve church service, the individual defendants intentionally and maliciously announced, or instigated an announcement, to the congregation that each of the plaintiffs “was a witch and had practiced evil deeds upon family and fellow Church members,” and that one of the defendants “and others” repeated these statements before a wider audience on January 9, 1994, at another of the church’s services. The conduct was alleged to be malicious, wanton, and oppressive. The evil deeds included practicing witchcraft, acts of bodily harm, thievery, causing infertility, stealing United States government files to harm a fellow member, and child abuse.

The complaint further stated that under Nigerian law, practicing witchcraft is punishable by imprisonment which leads to ostracism and even death in some areas of the country. The plaintiffs maintained the accusations have subjected them to ridicule, contempt, and ostracism among the Nigerian community in Atlanta and in their home states in Nigeria, resulting in some instances in substantial business losses. When defendants failed to answer, the court entered default judgment against them, finding that the statements were “not strictly an ecclesiastical matter” and that “the slanderous remarks far exceeded the confines of the Church.” Since the allegations were not denied or otherwise defended as to liability, and the default judgment was not set aside, the allegations are taken as true. Stroud v. Elias, 247 Ga. 191, 193 (275 SE2d 46) (1981); Summerour v. Medlin, 48 Ga. App. 403 (1) (172 SE 836) (1934). An unreported bench trial on damages resulted in the judgment for the amounts stated.

1. The first enumeration is that the trial court erred in ruling that defendants failed to timely raise the issue of subject matter jurisdiction. Thereby, the court did not rule on the issue.

The trial court was obliged to inquire into its own jurisdiction as a threshold matter, even if the defendants failed to properly raise this issue below. OCGA § 9-11-12 (h) (3); McDonnell v. Episcopal Diocese of Ga., 191 Ga. App. 174, 175 (381 SE2d 126) (1989). “The civil court cannot take jurisdiction of an ecclesiastical issue even if the parties present it for resolution, because the First Amendment prohibits such action by the civil judicial system.” Id. at 176. Courts do not have power to extend their jurisdiction, which is set by constitutional or statutory law. Subject matter jurisdiction may not be waived by the parties or the court. Bowers v. Estep, 204 Ga. App. 615, 616 (1) (420 SE2d 336) (1992).

The civil court did have jurisdiction to entertain the complaint, as it did state a cause of action for which relief may be granted. It is true that “civil courts have no power or authority to interfere in the internal affairs of a religious organization concerning doctrines, faith, or belief.” Sapp v. Callaway, 208 Ga. 805, 810 (7) (69 SE2d 734) (1952), citing Stewart v. Jarriel, 206 Ga. 855, 856 (6) (59 SE2d 368) (1950). Thus the civil courts will not inquire into or determine the validity of the expulsion of a member from a church having a congregational form of government, as stated in Sapp. But here the statements about the plaintiffs were not done in the course of an investigation of their church membership, and plaintiffs do not seek civil court relief in the form of return to membership, which would be outside the court’s competence. Instead, they seek civil redress for intentional torts of slander. This does not involve inquiry into and decision concerning questions of “ ‘doctrine, discipline, ecclesiastical law, rule, custom, church government, faith [or] practice. of the church.’ [Cit.]” Gervin v. Reddick, 246 Ga. 56, 59 (5) (268 SE2d 657) (1980).

Even where a church legitimately undertakes investigation of alleged misconduct on the part of its members and charges are privileged communications, all are not protected from civil suit. See OCGA § 51-5-9. There is no privilege for charges which are actually known to be false and are made maliciously and wilfully with the purpose of injuring another. Swafford v. Keaton, 23 Ga. App. 238, 239 (3) (98 SE 122) (1919). See also Etchison v. Pergerson, 88 Ga. 620 (15 SE 680) (1892), where a cause of action for slander was recognized for allegedly false reports of adultery to a church committee by one church member about another. Compare Monahan v. Sims, 163 Ga. App. 354, 359 (2) (294 SE2d 548) (1982), where the allegedly defamatory information was privileged as matters evolved during an investigation pertaining to canonization of a priest and were not improperly published broader. More fundamentally, the court lacked jurisdiction because the suit involved a purely ecclesiastical matter.

Not so here, where the statements were made to the whole congregation and were not in the context of an ecclesiastical tribunal. Unlike Monahan, plaintiffs did not seek civil redress for a decision by the religious organization. Instead, they sought a civil remedy for a civil wrong, the violation of their civil right not to be publicly slandered, and this required no entanglement with the internal affairs of a religious organization. Compare also Crosby v. Lee, 88 Ga. App. 589 (76 SE2d 856) (1953), where the alleged defamation, a libel, was made in the course of expulsion proceedings in connection with the plaintiff in his church affiliations. This related to church discipline, to which the plaintiff subjected himself by becoming a member of the church, and was not actionable. Serbian Eastern Orthodox Diocese &c. v. Milivojevich, 426 U. S. 696, 713 (96 SC 2372, 49 LE2d 151) (1976); Kedroff v. St. Nicholas Cathedral &c., 344 U. S. 94, 116 (73 SC 143, 97 LE 120) (1952); Gonzalez v. Roman Catholic Archbishop &c., 280 U. S. 1, 16 (50 SC 5, 74 LE 131) (1929); Watson v. Jones, 80 U. S. 679 (13 Wall. 679, 20 LE 666) (1871).

Child abuse, inflicting bodily harm, thievery, and stealing government files constitute crimes under the law of Georgia. To falsely accuse one of committing a crime constitutes the tort of slander. OCGA § 51-5-4 (a) (2). Such conduct is not protected by the doctrine of separation of church and state by utterance as testimony during the course of a church service. An examination into the claims of plaintiffs would not require an impermissible inquiry into church doctrine, faith, discipline, governance, or other ecclesiastical matter.

Thus, as to all charges against plaintiffs except that they were witches and practiced witchcraft, the complaint stated a cause of action which the court was competent to adjudicate. As to these two charges, they related to religious faith, belief, and practice. In Roberts v. Ravenwood Church &c., 249 Ga. 348 (292 SE2d 657) (1982), the Georgia Supreme Court recognized that a church whose members are commonly referred to as witches and warlocks is a religious organization practicing the Wiccan faith, so that its property used for religious worship was entitled to exemption from ad valorem taxation. The court refused to inquire into the merits of truth of its religious beliefs, in obedience to the First Amendment. In the instant case, on the other hand, plaintiffs consider civilly slanderous the statements that they are witches and practice witchcraft. To try the truth of such charges would harken back to the early days of this nation’s life, when the treachery of witchcraft trials blackened judicial dockets. The fact that the allegations are admitted in this case, by the default, does not vest the trial court with subject matter jurisdiction when it would not lie were the allegations denied.

There is no transcript of the trial, and it appears that the trial court exercised jurisdiction over this aspect of the case and awarded damages partially on this foundation, because the court rejected the challenge to subject matter jurisdiction. The court ruled, without differentiating the statements or refusing to exercise jurisdiction over some of them, that “the statements . . . [were] not strictly an ecclesiastical matter.” Apparently the court considered the statements as a whole. To the extent that damages were bottomed on slander for charging plaintiffs with being witches and practicing witchcraft, it was error. To the extent that damages were founded on charges of crime, it was not error. The case must be remanded for the trial court to reconsider the issues of damages accordingly.

2. Defendants are correct that the judgment must be reversed as to the defendant church itself altogether. Although plaintiffs alleged that the church conspired with its members to slander them, “[t]he doctrine of respondeat superior does not apply in slander cases.” Lepard v. Robb, 201 Ga. App. 41, 42 (410 SE2d 160) (1991). Plaintiffs did not allege or show by any record evidence that the church “expressly ordered and directed [defendants] to say those very words.” (Punctuation omitted.) Church of God v. Shaw, 194 Ga. App. 694 (1) (391 SE2d 666) (1990); Ekokotu v. Pizza Hut, 205 Ga. App. 534, 536 (1) (422 SE2d 903) (1992). As stated in Lepard, supra at 42, “a corporation is not liable for the slanderous utterances of an agent acting within the scope of his employment, unless it affirmatively appears that the agent was expressly directed or authorized to slander the plaintiff.” The same would apply to utterances of a church member.

Moreover, the complaint does not state an actionable claim against the church. Allegations of slander by individuals “and other leaders” of the church do not express a claim against the church itself as a separate entity. The count alleging a “continuing conspiracy” to defame between the church as a separate entity, the individual defendants, and “as yet unnamed individual defendants” fails in addition because “ ‘[cjonclusory allegations by the plaintiff of conspiracy, malice, and defamation, are insufficient — in the absence of substantiating fact or circumstances, to raise a material issue for trial.’ [Cit.]” Ekokotu, supra at 536 (2).

To the extent the alleged conduct of the church contributed to the amounts awarded jointly and severally, the judgment must also be revised accordingly.

3. Defendants contend that they were entitled to the qualified privilege accorded to communications which are “made in good faith in the performance of a legal or moral private duty.” OCGA § 51-5-7 (2). Defendants base this contention on their assertion that the statements were made as testimony or confession during a worship service and thus were a church activity, and cite Leggett v. Macon Baptist Assn., 232 Ga. 27, 31 (205 SE2d 197) (1974), as support. That being so, defendants argue, plaintiffs were required to show actual malice, citing OCGA § 51-5-9. It provides: “In every case of privileged communications, if the privilege is used merely as a cloak for venting private malice and not bona fide in promotion of the object for which the privilege is granted, the party defamed shall .have a right of action.” x

Etchison v. Pergerson, supra, relied on by ■ defendants to show they had a privilege, does not support them. There the Supreme Court explained that the testimony of a witness in a church trial against a fellow member is privileged under the predecessor of OCGA § 51-5-7 (2). In the first place, the statements in the instant case were not made in a church tribunal in the course of an investigation of alleged misconduct of church members. Second, defendants cannot show good faith because, by their default, they admit falsity and maliciousness. Thus Flanders v. Daley, 120 Ga. 885, 889 (4-5) (48 SE 327) (1904), does not support defendants either, as good faith was conclusively absent. Even if the statements about plaintiffs to the whole congregation on the two occasions indicated were privileged communications “intended to express adoration and homage for the Deity,” Leggett, supra at 31, the complaint alleged malice and that element was thus proved by the default.

4. Defendants allege error in the trial court’s conclusion that the issue of qualified privilege was untimely raised. We have considered the issue on its merits above, and thus this enumeration is moot. Moreover, the court was correct, in that the defendants defaulted and thereby lost all defenses and admitted liability. OCGA §§ 9-11-12; 9-11-55 (a). Raising a defense in a motion for new trial is too late. When a defendant is in default, he is estopped from contesting the merits. See Cooper v. Brock, 77 Ga. App. 152, 156 (1) (48 SE2d 156) (1948).

5. The final enumeration of error is that there was no slander because there was no publication beyond that which was qualifiedly privileged. As set out above, defendants cannot claim the protective cloak of privilege. Moreover, the undenied complaint alleged that the false accusations subjected plaintiffs to “ridicule, contempt and ostracism among the Nigerian community in the Atlanta area, nationwide, and in . . . Nigeria.” Defendants cannot take comfort from the cited case of Layson v. Odom, 55 Ga. App. 868, 869 (192 SE 75) (1937), which quotes an earlier case for the proposition that publication to a stranger does not destroy a privilege if the presence of such persons was merely casual and not sought by defendant. In this case the defendants cannot stand on a privilege.

6. Because the judgment is reversed for the reasons stated, we do not address the enumeration which asserts that the judgment is excessive. That issue can be raised anew if the new judgment arguably exceeds the bounds of the law.

Judgment affirmed in part and reversed in part and case remanded with direction.

Birdsong, P. J, and Blackburn, J., concur specially.

Blackburn, Judge,

concurring specially.

I concur with the majority’s conclusion that the trial court had subject matter jurisdiction to adjudicate the plaintiffs’ claims regarding the defendants’ allegations of child abuse, inflicting bodily harm, thievery, and stealing government files. However, I disagree with the majority’s finding that the trial court impermissibly based its award of damages in part upon matters over which the court did not have jurisdiction, and which conclusion was the basis of the reversal of the trial court.

The damages award was entered in this case following a bench trial, and the language of the trial court’s order clearly indicates that it recognized the difference between claims ecclesiastical in nature and issues “not strictly . . . ecclesiastical.” Absent a showing to the contrary in the record, this Court presumes that the trial judge correctly separated the enforceable claims from the matters involving church doctrine and applied the pertinent law. There is no evidence in the record that the trial court’s findings were based on anything but the legitimate claims recognized by the majority: allegations of child abuse, inflicting bodily harm, thievery, and stealing government files.

Decided December 5, 1996.

Michael L. Wetzel, for appellants.

James D. McGuire, Birgit G. Nomura, for appellees.

While the majority concludes that because a default judgment was entered for the plaintiffs, the trial court impermissibly based its award on religious matters, there is no factual basis in the record of the unreported hearing to support such a conclusion. The majority inappropriately bases its result on a determination that the trial court based its award in part on many of plaintiffs’ claims which involve matters over which this Court has no jurisdiction. Without regard to the matter of ecclesiastical jurisdiction, such “ecclesiastical” allegations simply state no cause of action in tort under Georgia law. These claims could not be the basis for any award in tort without regard to the setting in which the conduct occurred, ecclesiastical or otherwise.

I agree with the majority that the judgment must be reversed with respect to the defendant, First United Church, Inc. The trial court erred in denying the church’s motion for new trial, because the complaint upon which the default judgment was based failed to state a claim against the church. This is true without regard to the ecclesiastical setting in which the torts occurred and without resort to the majority’s “ecclesiastical” analysis which is unnecessary and inappropriate. If the “ecclesiastical” comments were not slanderous, their utterance did not constitute slander, and there was no tort arising therefrom.

Because we have reversed the trial court’s holding as to First United Church, Inc., and it is not possible to determine to what extent such defendant’s conduct contributed to the court’s joint and several award against the collective defendants, I agree that the trial court’s order must be vacated and remanded to the trial court for its review of its award, consistent with this opinion. Thereafter, the parties would be entitled to appeal the issue of excessiveness of the award which we have not addressed here at that time as may be appropriate.

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


author: Ruffin, Judge. McMurray, Presiding Judge,

text:
    A96A1349.
    RISCHACK et al. v. CITY OF PERRY et al.
    (479 SE2d 163)
   Ruffin, Judge.

While leaving the New Perry Hotel in Perry, Beverly Rischack tripped and broke her ankle in a grassy area owned by the City of Perry. Rischack sued both the city and the hotel for her injuries; her husband Gerald Rischack also sued for loss of consortium. The trial court granted summary judgment to both defendants, and the Rischacks appeal. We affirm.

“[Sjummary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991).

Viewed in this light, the evidence shows that the Rischacks drove their car to the New Perry Hotel to attend a dinner. When they arrived, Gerald Rischack dropped Beverly Rischack off at the hotel driveway, then parked his car on a public street in a curbside parking space several car lengths from the driveway. A strip of grass several feet wide ran alongside the curb, and there was a public sidewalk leading to the driveway adjacent to the other side of this grassy median.

After dinner, Beverly Rischack walked on the sidewalk toward the passenger side of the car. It was night, and despite the presence of lights on the street and hotel gate, visibility in the area adjacent to the car was poor. As Rischack crossed the strip of grass to get from the sidewalk to the passenger door of the car, she did not see a depression in the ground near the curb. She stepped in the depression, lost her balance, and broke her ankle. In affidavits, the Rischacks’ witnesses describe this depression as being a hole six to eight inches deep and ten to twelve inches wide. We note, however, that photographs identified by these same witnesses and submitted with their affidavits show only a gradual depression that appears to be shallower than six inches. Moreover, grass growing in the depression gave it a similar appearance to the surrounding ground covered by short grass.

Evidence showed that the City of Perry owned the street, sidewalk, and grass strip, and that the city had a crew of workers to maintain its rights of way. The hotel vice president and the city public works superintendent testified on deposition, however, that the hotel voluntarily performed all routine aesthetic work such as mowing the grass and sweeping the sidewalk in the area where Rischack fell. It was the practice of the hotel to call the city to take care of any serious problems in the area, and the city acknowledged that it had ultimate responsibility for and authority over the area. For example, when it became necessary to remove a large tree nine months before this incident, the city paid a private tree service to remove it, but both city and hotel employees participated in filling the resulting hole with dirt. It was not established whether Rischack fell in the depression resulting from this tree removal. There was no testimony from city or hotel employees who personally had performed landscaping or maintenance work in the area before Rischack fell. Nor was there evidence establishing that the city or the hotel knew the depression existed before she fell.

1. The Rischacks cite OCGA § 51-3-1 as the basis for their right to recover against the hotel. This statute provides: “Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. The Rischacks contend the grassy strip was an “approach” to the hotel’s land, and that the hotel therefore had a duty to maintain the grassy strip in a safe condition even though it was not the owner. We disagree.

In Motel Properties v. Miller, 263 Ga. 484 (1) (436 SE2d 196) (1993), our Supreme Court addressed the issue of what physically constitutes an “approach.” Under Motel Properties the term “approach” “ ‘refers to the sidewalk or other approach that is directly contiguous, adjacent to, and touching the premises under control of the owner or occupier.’ [Cit.]” (Emphasis supplied.) Id. at 485-486. In this case, the sidewalk was the approach to the hotel property. The property where Rischack fell was not directly contiguous to the hotel property, and the fact that Rischack accessed the sidewalk by walking across the grass strip does not make the grass strip part of the approach. By this reasoning any property crossed to access an approach would also be deemed part of the approach.

This Court recognized the problems with such analysis in Elmore of Embry Hills, Inc. v. Porcher, 124 Ga. App. 418 (183 SE2d 923) (1971). In Porcher, the plaintiff fell on a shopping center sidewalk. Although the sidewalk was in front of a vacant area, the plaintiff argued it was an approach to an adjacent store owned by the defendant. In affirming the trial court’s grant of summary judgment to the defendant, we recognized that according to the plaintiff’s argument “her entire route from home to the store was a part of her ‘approach,’ but it could hardly be contended that the shopkeeper was responsible for this entire stretch of travel.” Id. at 419. Accordingly, in Motel Properties the court limited the term approach to the “last few steps taken by invitees. . . .” Motel Properties, supra at 486.

It is clear from the photographs in the record of this case that the only approach to the hotel driveway was the city-owned sidewalk. Those same photographs show that Rischack must have walked at least 40 feet from the driveway to the point where she crossed and fell in the grass strip. By any account, she walked more than a few steps along the sidewalk from the driveway to the point where she attempted to cross the grass strip. Accordingly, because the undisputed evidence showed that the portion of the grass strip where Rischack fell was not contiguous and more than a few steps from the hotel driveway, such property did not meet this definition of “approach.”

Neither did the property at issue fall under the Motel Properties alternative definition of “approach.” This latter definition extends what “can be deemed an approach because the landowner extended the approach to his premises ‘by some positive action on his part, such as constructing a sidewalk, ramp, or other direct approach.’. . . [Cit.]” (Emphasis in original.) Id. In this case, mowing the grass strip cannot be considered a positive action to create a direct approach to the hotel property.

Finally, the dissent’s contention concerning evidence of ownership of the grass strip and sidewalk is without merit. Contrary to the dissent’s position, our finding that the city owns the grass strip is not an “erroneous assumption,” but rather based on the Rischacks’ admissions in their summary judgment brief and appellate brief.

OCGA § 24-3-30 provides that “[wjithout offering the same in evidence, either party may avail himself of allegations or admissions made in the pleadings of the other.” “The purpose of OCGA § 24-3-30, as set forth in East Tenn. &c. R. Co. v. Kane, 92 Ga. 187 (18 SE 18) (1893), is judicial economy: ‘saving the courts much time, vexation and trouble.’ Id. at 192. With this purpose in view, the Kane court reasoned: ‘Certainly a party should be relieved from proving that which his adversary distinctly alleges.’ Id.” Carver v. Saye, 198 Ga. App. 146, 147 (1) (400 SE2d 683) (1990) (physical precedent only). For these same reasons we must conclude that, based on the Rischacks’ admissions in judicio, the city owns the grass strip and sidewalk.

Because it is clear that the grass strip was not an approach, it is unnecessary to address whether Rischack exercised ordinary care for her own safety.

2. The Rischacks contend that the city is not entitled to the protection of OCGA § 32-4-93 (a), which exempts a city from liability for “defects in the public roads of its municipal street system . . . when it has no actual notice thereof or when such defect has not existed for a sufficient length of time for notice thereof to be inferred.” This statute also applies to public sidewalks and to unpaved rights of way. Brumbelow v. City of Rome, 215 Ga. App. 321 (450 SE2d 345) (1994); Crider v. City of Atlanta, 184 Ga. App. 389 (1) (361 SE2d 520) (1987). The Rischacks claim they have presented sufficient evidence of the depression’s age to support an inference of notice to the city of its existence. We disagree.

The city’s public works superintendent testified that his road and right of way crew learns of most defective conditions from phone calls or by “observing . . . when we’re out.” The record shows that a city crew was on the grassy strip approximately nine months before Rischack fell to fill the hole left by the removal of the large tree. Although the city public works superintendent testified that by May 1995 city workers had revisited the site where the large tree was removed, the Rischacks have presented ño evidence that city workers were on the site at any time between December 1992 and Mrs. Rischack’s August 1993 fall.

Finally, though the size of the depression in which Rischack tripped and the grass growing in it may present some evidence of age, in this case these factors do not establish that it was so old as to provide a basis for concluding that the city had constructive knowledge of the hazard. See Armenise v. Adventist Health &c., 219 Ga. App. 591, 593 (466 SE2d 58) (1995). The facts showed only that the hazard was a relatively narrow and shallow depression which was covered and surrounded by short grass. See id.; compare Lawless v. Sasnett, 200 Ga. App. 398 (408 SE2d 432) (1991) (hazard was knee-deep hole obscured by grass that had grown to the height of approximately one foot). The evidence in this case is simply too speculative to create a jury issue concerning the age of the depression. See Brumbelow, supra.

The Rischacks have therefore not shown that the city’s knowledge of the depression should be inferred under OCGA § 32-4-93 (a). Therefore, the grant of summary judgment to the city was correct.

Judgment affirmed. Birdsong, P. J, Pope, P. J, Andrews, Johnson,

Blackburn and Smith, JJ., concur. Beasley, C. J., concurs in the judgment only. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

For the reasons given in my dissent in Armenise v. Adventist Health System/Sunbelt, 219 Ga. App. 591 (466 SE2d 58), I respectfully dissent from the affirmance of summary judgment in the Rischacks’ tort action against the City of Perry and the New Perry Hotel as the owner and occupier of land respectively. In my view, a jury should determine whether plaintiff Beverly Rischack failed to exercise ordinary care for her own safety when she stepped into a depression in the grassy median between the curb and the sidewalk adjacent to the hotel, and fell, breaking her ankle. In Malone v. City of Rossville, 107 Ga. App. 271, 272 (2) (129 SE2d 563), based on facts very similar to the case sub judice, this Court approved a jury instruction on the City’s duty to maintain safe streets coupled with the instruction that if plaintiff Beverly Rischack “ ‘by the exercise of ordinary care and diligence for her safety [plaintiff] could not have avoided that injury, then she would be entitled to recover.’ ” (Emphasis supplied.) Id. at 273.1 further dissent from the affirmance of summary judgment based, in my view, on undocumented assumptions and inadmissible evidence that only the City of Perry had any ownership interest in the realty where plaintiff actually fell.

An owner or occupier of land “has a duty under OCGA § 51-3-1 with regard to the approach to his premises circumscribed by his right in the approach. If his right in the approach is the fee then the duty under OCGA § 51-3-1 is the exercise of due care by one who has the rights of an owner of a fee. He has the widest latitude in the use of the approach and must exercise due care within that framework to keep the approach safe. If his right in the approach is an easement his duty is to use due care toward his invitees in the exercise of his rights under the easement. He has a more limited framework than the owner of the fee. His duty does not require him to do things not permitted under the easement. If the approach is a public way his duty under OCGA § 51-3-1 is to exercise due care within the confines of his right in the public way. His rights in the public way may be quite limited but nonetheless exist.” Todd v. F. W. Woolworth Co., 258 Ga. 194, 195 (1), 196 (366 SE2d 674).

The majority would conclude that the grassy strip where plaintiff Beverly Rischack broke her ankle is not, as a matter of law applied to undisputed fact, an approach to the premises of the defendant New Perry Hotel. This is based on the erroneous assumption “that the City of Perry owned the street, sidewalk, and grass strip, and that the city had a crew of workers to maintain its rights of way!’ (Emphasis supplied.) Majority opinion, p. 856, ante. In the case sub judice, it is undisputed only that the defendant City of Perry owns the right of way to the sidewalk, grassy median strip, and the street. The evidence cited in support of the majority’s undocumented assumption concerning title to real property is the evidence of William H. Sharp, the Public Works Supervisor for the City of Perry, who affirmed that the “city is responsible for maintaining the public streets.” According to Sharp’s “understanding, we [the City of Perry] have the final say on anything that goes on our right-of-way.” This testimony is, however, hearsay as to the City’s title to real property. It is also incompetent opinion testimony as to a legal conclusion concerning the extent of title. OCGA § 24-9-65; Wells v. Metropolitan Life Ins. Co., 107 Ga. App. 826, 834 (131 SE2d 634). Although the City removed a large elm tree from the median in 1992, it is further undisputed that defendant New Perry Hotel exercises some concurrent dominion over the median at issue by conducting routine maintenance of the area surrounding its premises, including the City of Perry’s right of way. “Where title to a public road or highway is not shown to be in the public by express grant, there is a presumption that it exists merely as an easement, under which the base fee in the underlying ground remains in the adjacent owners.” (Footnote omitted.) Pindar, Ga. Real Estate Law & Procedure, § 5-14 (4th ed. 1993). The record in the case sub judice is simply devoid of competent evidence delineating the City’s interest in the grassy strip between the city street and the city sidewalk. There is thus an evidentiary presumption that the defendant City of Perry has only an easement, with the fee remaining in the defendant New Perry Hotel. Accordingly, I do not join in the majority’s analysis that the grassy strip is, as a matter of law, not an approach to the New Perry Hotel. Consequently, I do not agree that the defendant New Perry Hotel is relieved of liability on the ground that the median is a mere public way. Rather, the jury should determine whether the median area adjoining both the sidewalk and public parking constitutes an approach to the premises by which plaintiff Beverly Rischack and others were impliedly induced to traverse as invitees, rather than mere pedestrians, as they exit and enter the premises. Motel Properties v. Miller, 263 Ga. 484, 486 (2) (436 SE2d 196). Since my colleagues in the majority would affirm the grant of summary judgment despite the existence of genuine issues of material fact, I respectfully dissent.

Decided December 5, 1996

Reynolds & McArthur, Charles M. Cork III, for appellants.

Swift, Currie, McGhee & Hiers, Christopher D. Balch, Chambless, Higdon & Carson, Thomas F. Richardson, William H. Anderson III, for appellees.


author: Beasley, Chief Judge.

text:
    A96A1350.
    GREAT WESTERN PRESS, INC. v. ATLANTA FILM CONVERTING COMPANY.
    (479 SE2d 143)
   Beasley, Chief Judge.

Defendant Great Western Press appeals the trial court’s award of summary judgment to plaintiff Atlanta Film Converting Company. Summary judgment is proper only when the moving party demonstrates that there is no genuine issue of material fact and that the undisputed facts entitle the movant to judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The non-moving party “is entitled to, all reasonable doubts and favorable inferences that may be drawn from the evidence.” Mixon v. Phoenix Landscaping, 136 Ga. App. 344, 345 (221 SE2d 225) (1975).

So viewed, the record shows a chain of production and distribution of wrappers for “Lion Kang” trading cards, with Atlanta Film producing the wrappers by order of Great Western, which distributed the wrappers to Anderson News Company (ANCO) through contract with SkyBox International.

On June 8, 1994, Great Western placed a purchase order with Atlanta Film for the production of wrappers with universal product codes (UPCs), which indicated a need date of June 20. Atlanta Film began delivery of the products on June 22 and the entire shipment arrived by June 24. On June 27, the wrappers were delivered directly to ANCO. SkyBox received a call from ANCO on June 30, indicating that the UPCs were not scanning properly and that ANCO would not be able to sell the product to its consumers. To avoid a $360,000 loss, ANCO “restickered” the products with new UPCs and charged SkyBox approximately $35,000 for this process. SkyBox passed the charge on to Great Western. The record does not show when Great Western was notified of the restickering.

On August 4, Atlanta Film telephoned Great Western to inquire why payment for the wrappers had not been made. Great Western replied that the UPCs had not scanned properly and that it charged back $35,000 for the restickering. Great Western refused to pay, and on September 8 Atlanta Film gave Great Western notice and demand for payment. None was made, and suit was filed on January 25, 1995. Great Western counterclaimed for breach of express and implied warranties. The trial court granted Atlanta Film’s motion for summary judgment both as to its claim and to the counterclaim and ordered Great Western to pay Atlanta Film the full amount.

1. Great Western enumerates as error the court’s dismissal of its counterclaim in acceptance of Atlanta Film’s argument that Great Western did not provide reasonable notice as required under OCGA § 11-2-607 (3) (a): “The buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.” The question of reasonableness of notice is ordinarily a factual one, and summary adjudication is appropriate only if the uncontroverted facts establish that the moving party is entitled to recover as a matter of law. Intl. Multifoods Corp. v. Nat. Egg Products &c., 202 Ga. App. 263, 266 (4) (414 SE2d 253) (1991).

Great Western contends there is a genuine issue of material fact as to whether its August 4 notice was reasonable. Atlanta Film argues the policies behind OCGA § 11-2-607 support summary judgment in its favor: “The purpose of the rule . . . is to defeat commercial bad faith.” (Citation and punctuation omitted.) Intl. Multifoods, supra at 266 (4). Notice of breach opens the door for settlement negotiations and minimizes the possibility of prejudice by giving the seller an opportunity to cure the defect or reduce the damages at an early stage. Hudson v. Gaines, 199 Ga. App. 70, 72 (2) (403 SE2d 852) (1991); Oden & Sims Used Cars v. Thurman, 165 Ga. App. 500, 501 (1) (301 SE2d 673) (1983); Jones v. Cranman’s Sporting Goods, 142 Ga. App. 838, 840 (1) (a) (237 SE2d 402) (1977). A buyer who buys goods, sells them and keeps the proceeds and then claims the goods were defective without giving the seller notice deprives the seller of the right to inspect, test and sample the goods to ascertain facts and preserve evidence. See generally White & Summers, Uniform Commercial Code, pp. 61Í-619, § 11-10 (4th ed. 1995); 2 Anderson, Uniform Commercial Code, p. 120, § 2-607:4 (3rd ed. 1981). The Official Comment to the Uniform Commercial Code § 2-607 states that content of the notice should let the seller know that the transaction is troublesome and need be watched. Jones, supra at 840.

Atlanta Film argues it had no notice that the transaction was troublesome and that it was given no opportunity to investigate the problem, to challenge the assertion that the UPCs were inaccurate, to resticker the codes or otherwise cure the defect at a lower cost, or to reduce its damages.

Great Western counters that, notwithstanding the policies behind OCGA § 11-2-607, Atlanta Film had no right to cure since the defective goods were accepted after being delivered late. We agree. OCGA § 11-2-508 (1) only permits a seller to cure defects if the goods have been rejected and if “time for performance has not yet expired.” Time was of the essence, and by the time of delivery, the time for performance had expired. Atlanta Film says the delay was justified by actions of the buyer, but this is a factual matter for a jury to hear and weigh.

As delivered, the goods were untimely and unusable. A jury could also find that it was reasonable for ANCO, in order to mitigate damages, to correct the UPC defect in the manner and at the time it did so, and that Atlanta Film’s lack of opportunity to investigate, to challenge the assertion of the inaccuracy, or otherwise to reduce its damages was occasioned by its late delivery. Great Western should also be permitted to present evidence of when it received notice of the defect. These are factual matters beyond the purview of summary judgment.

Atlanta Film cites Fruin-Colnon Corp. v. Air Door, 157 Ga. App. 804 (278 SE2d 708) (1981), but it is distinguishable. The seller sold an allegedly nonconforming frame to the buyer, who then corrected the frame without notice to the seller and charged back the cost. The trial court, sitting as factfinder, found that the notice was not reasonable when the buyer took two weeks to notify the seller of the defect, how it had been corrected, and that it was charging the seller the cost of correcting the defect. Id. at 808 (3).

Decided December 5, 1996.

Jones, Day, Reavis & Pogue, Michael J. McConnell, Tilden R. Reid II, for appellant.

Gerber & Gerber, Bernard M. Gerber, for appellee.

Here, the court made a legal determination at summary judgment stage that the notice was unreasonable and that plaintiff Atlanta Film was accordingly entitled to judgment as a matter of law, but the record contains too many factual questions to have permitted summary adjudication.

2. In its motion for summary judgment, Atlanta Film contended that the August 4 conversation in reality constituted no notice, and that Great Western’s counterclaim for breach of warranty was thus barred since the goods had been accepted. It cited OCGA § 11-2-606 and Contract Sales & Svc. Intl. v. American Express &c. Co., 216 Ga. App. 61 (453 SE2d 62) (1994). Great Western enumerates as error the trial court’s acceptance of this reasoning, pointing to OCGA § 11-2-607 (2), which states that acceptance does not impair any other remedy provided by this article for nonconformity, and OCGA § 11-2-714, which provides that a buyer can recover damages for a breach of warranty even though the buyer accepted the defective goods.

Whether OCGA § 11-2-607 was served by Great Western’s notice to Atlanta Film of the defect over a month after it had been corrected, and only when payment was demanded, is a jury question. Thus, the trial court’s conclusion that, as a matter of law, Great Western’s notice to Atlanta Film was not within a reasonable time, that Great Western’s claim for breach of warranties was accordingly barred, and that a money judgment against Great Western was proper is accordingly reversed.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A96A1376.
    LONG JOHN SILVER’S, INC. v. COLEMAN.
    (479 SE2d 141)
   Beasley, Chief Judge.

Coleman sued Long John Silver’s for personal injuries she sustained when she tripped and fell outside its restaurant. The trial court denied Long John Silver’s motion for summary judgment and issued a certificate of immediate review, and we granted Long John Silver’s application for interlocutory review. See OCGA § 5-6-34 (b).

Coleman wrenched her knee when the heel of her shoe caught in a small hole or crack in the concrete ramp in front of the restaurant. She was wearing pumps with a two-inch heel, and her foot came out of the shoe, which remained lodged in the hole. She described the hole as an inch or so in width and it was just large enough for her shoe heel to lodge inside it. Coleman’s two companions testified that after the incident the hole was visible from a standing position. Coleman testified she did not know whether the hole was visible from such a place but that as she approached she was not looking where she placed her feet.

This case is factually similar to Piggly Wiggly Southern v. Bennett, 217 Ga. App. 496 (458 SE2d 138) (1995). There the plaintiff tripped when her heel caught on a small defect at the juncture of the parking lot pavement and the paved entrance ramp to a store. Id. at 497. Bennett’s holding can be applied here: “ ‘Occupiers of premises whereon the public is invited to come are not required to keep their parking lots and other such areas free from irregularities and trifling defects. One coming upon such premises is not entitled to an absolutely smooth or level way of travel.’ . . . [Cit.] ‘It is common knowledge that small cracks, holes and uneven spots often develop in pavement; and it has been held that where there is nothing to obstruct or interfere with one’s ability to see such a static defect, the owner or occupier of the premises is justified in assuming that a visitor will see it and realize the risk involved.’. . . [Cit.] Here, the uneven pavement upon which [Coleman] tripped was a static, trifling defect and nothing obstructed [Coleman]’s view” of it. Id.

Coleman argues Bennett does not apply because a factual dispute remains as to whether her view of the pavement was blocked by one of her companions walking just ahead of her. If such did cause an obstruction to her view, that obstruction is not attributable to Long John Silver’s. See Froman v. George L. Smith, Ga. World Congress Auth., 197 Ga. App. 338, 339 (398 SE2d 413) (1990). She also contends Bennett and its “static defect” argument should not be addressed because it was not raised until Long John Silver’s filed its reply brief on its motion for summary judgment, which it did in open court the day of the hearing, precluding Coleman from filing evidence to rebut it. Long John Silver’s initial brief in support of its motion for summary judgment cited Bennett and noted the factual similarity. Coleman had ample time to respond to the issues addressed in Bennett.

She also argues Bennett does not control because a sign in the window of the restaurant posed a distraction that removed her attention from where she was walking. See Redding v. Sinclair Refining Co., 105 Ga. App. 375, 378 (124 SE2d 688) (1962). Any distraction was self-induced by her decision to read the sign while walking rather than stop to read it, preventing recovery. McIntyre v. Pic & Save Drug Co., 213 Ga. App. 58, 60 (3) (443 SE2d 874) (1994).

Decided December 5, 1996.

Carter & Ansley, Thomas E. Magill, Burke B. Johnson, for appellant.

Nancy E. R. O’Quinn, for appellee.

Coleman argues that Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485) (1994), precludes applying McIntyre because her testimony that she was reading the sign while walking leaves a factual issue as to whether she was exercising reasonable care for her own safety. This argument is misplaced. Barentine found, there was “some evidence” that the invitee was acting reasonably in looking at the cashier rather than where he was going, but the circumstances here differ. Unlike Barentine, this is not a case involving an interior floor where the invitee might expect maintenance procedures will remove foreign substances that appear. Compare also J. H. Harvey Co. v. Edwards, 219 Ga. App. 697 (466 SE2d 246) (1995); McDonald’s Restaurants &c. v. Banks, 219 Ga. App. 667 (466 SE2d 240) (1995); Axom v. Wendy’s Intl, 219 Ga. App. 623 (466 SE2d 613) (1995); Piggly Wiggly Southern v. Brown, 219 Ga. App. 614 (468 SE2d 387) (1995); Baker v. Winn Dixie Stores, 219 Ga. App. 513 (465 SE2d 710) (1995). This was a trifling, static defect, and Coleman was traversing exterior concrete where “[i]t is common knowledge that small cracks, holes and uneven spots often develop.” Bennett, supra at 497; Papera v. TOC Retail, 218 Ga. App. 777, 778 (3) (463 SE2d 61) (1995); Gaydos v. Grupe &c. Investors, 211 Ga. App. 811, 813 (440 SE2d 545) (1994). Walking in such an area while reading a sign rather than looking where she stepped is not “some evidence” that she was exercising reasonable care for her own safety.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A96A1403.
    WILLETT v. THE STATE.
    (479 SE2d 132)
   Beasley, Chief Judge.

Willett appeals from his jury conviction of two counts each of aggravated sodomy, OCGA § 16-6-2, child molestation, OCGA § 16-6-4, and aggravated sexual battery, OCGA § 16-6-22.2, and the denial of his motion for new trial.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. King v. State, 213 Ga. App. 268, 269 (444 SE2d 381) (1994). So viewed, the evidence reveals that Willett, a successful engineer who owned two businesses in Savannah, was divorced and living alone in a one-bedroom apartment with only one bed.

Since August 1988, law enforcement had conducted undercover surveillance of Jake Lynn, whom Willett had known since June 1985. The authorities had suspected Lynn of keeping a place of prostitution. In April 1990, the police raided Lynn’s home and arrested him for operating an escort service. Because of Lynn’s legal problems relating to this arrest, Willett was named guardian of two of Lynn’s children, R. L., a seven-year-old son, and A. L., a younger daughter.

Lynn was the sales manager of a mobile home business, and he talked Willett into providing the capital to purchase the business in exchange for Lynn’s sales expertise. In December 1991, the two became partners in the business.

Willett testified he often worked in the warehouse next door to the Lynn residence and felt sorry for R. L. because of the Lynns’ “troubled family life.” Willett spent a lot of time with R. L., taking him to the mall and to airshows and for rides in his private plane. He also bought gifts for R. L. and often sought Lynn’s written permission before taking the child anywhere. R. L. spent the night at Willett’s apartment approximately 30 times. Willett acknowledged that occasionally he and R. L. slept in the same bed together during these visits.

Christine Gulley was one of R. L.’s babysitters. Willett often stopped by when Gulley was watching R. L. and left accompanied with R. L. According to Gulley, R. L.’s personality was markedly different on most every occasion he spent with Willett. Gulley’s eight-year-old brother D. B. sometimes accompanied her when she babysat for R. L. during the summer of 1992. D. B. and R. L. were friends prior to Gulley’s involvement with the Lynn family. Gulley also noticed marked changes in D. B.’s behavior after he had been around Willett. She testified that sometimes after returning from Willett’s warehouse, D. B. would sit in the middle of the floor and wet his pants. It was not until December 1992 when D. B. asked Gulley what a “faggot” was that Gulley became suspicious.

Gulley, who was skilled in child care, questioned her brother further and was told that Willett had touched him on his back and stomach. D. B. also disclosed that he had seen Willett touch R. L. inside the back of R. L.’s pants. Gulley immediately got in her car and stopped the first police officer she saw to report her brother’s allegations.

Videotaped interviews of R. L. and D. B. were taken by a sex crimes detective trained in interviewing young children. D. B. told the detective that Willett also touched his penis and buttocks, a claim he repeated at trial. R. L. also made incriminating statements about Willett during the interview and repeated them at trial.

Gulley testified that Willett called her on the phone and asked her “what would it take to get you to change your little brother’s story?” Gulley agreed to meet Willett at a local restaurant and called the police to inform them of the meeting. The police wired Gulley and conducted surveillance from outside the restaurant. Willett claimed the meeting was set up by Gulley to extort money out of him in exchange for D. B.’s recanted testimony, and he also tape-recorded the conversation. Subsequent to the meeting with Gulley, Willett was indicted for the sex crimes committed against R. L. and D. B.

1. Willett first enumerates as error the trial court’s denial of his motion for mistrial following this line of questioning of Willett by the prosecutor during cross-examination: “Q: Because you were so concerned about keeping your family together, you agreed to get counseling and treatment, didn’t you? A: That’s correct. Q: Because that’s what DFCS [Department of Family & Children Services] wanted you to do? A: Right. Q: And your treatment psychologist was Wendy Osee, wasn’t she? A: Yes, Sir. Q: She’s a licensed psychologist, isn’t she? A: I thought she was a psychiatrist. Q: That’s an MD, isn’t it? A: Yes, Sir. Q: We can’t ask Dr. Osee any questions unless you give us permission to ask her questions because she’s a licensed psychologist or psychiatrist; did you know that?”

The court denied the motion and gave the following curative instruction: “Jurors, the psychiatrist/patient privilege is a strong one. It’s different from the doctor/patient privilege. The psychiatrist/ patient privilege is a stronger one. What a patient tells his psychiatrist is confidential, as a matter of public policy. You should draw no inferences from the fact that the law keeps confidential communications made to a psychiatrist.”

OCGA § 24-9-21 (5) provides: “There are certain admissions and communications excluded on grounds of public policy. Among these are ... (5) Communications between psychiatrist and patient.” The right to assert the privilege belongs to the patient. Wilson v. Bonner, 166 Ga. App. 9, 16-17 (5) (303 SE2d 134) (1983).

Willett argues that the prosecutor’s reference to Willett’s right to have the psychiatrist not testify was equivalent to a prosecutor commenting on a defendant’s silence in violation of his right against self-incrimination by implying he has something to hide, in this case, that the psychiatrist’s testimony would have been unfavorable.

The purposes behind the two privileges are quite different. The psychiatrist/patient privilege is grounded in public policy “to encourage the patient to talk freely without fear of disclosure and embarrassment, thus enabling the psychiatrist to render effective treatment of the patient’s emotional or mental disorders.” Wiles v. Wiles, 264 Ga. 594 (1) (448 SE2d 681) (1994), citing 1 C. McCormick, McCormick on Evidence, § 98 at 369-370 (J. Strong 4th ed. 1992). But the privilege has never been accorded constitutional status. The Constitution protects an accused from being forced to possibly incriminate himself in the face of the coercive power of the State. See Schmerber v. California, 384 U. S. 757, 762 (II) (86 SC 1826, 16 LE2d 908) (1966). We do not do so now.

Even if we were to accept Willett’s argument that the question was a constitutional affront, the right against self-incrimination is waived if the defendant testifies. Leonard v. State, 146 Ga. App. 439, 442 (3) (246 SE2d 450) (1978).

The State argues the question was permissible and for support cites Wynn v. State, 168 Ga. App. 132, 134 (2) (308 SE2d 392) (1983), which held that the prosecutor does not commit harmful error by informing the jury that the State has no power to compel a defendant’s spouse to testify. The privilege not to testify belongs to the spouse and is beyond the defendant’s control. The court in Wynn determined the State may relate this information in closing only if it makes no reference to the defendant not calling the spouse and does not argue that, from the defendant’s failure to call the spouse, the jury may infer the defendant was not telling the truth. Id. at 135 (2). The State contends it was doing no more than commenting that it was Willett’s right to have his psychiatrist testify. See also James v. State, 223 Ga. 677, 682 (5) (157 SE2d 471) (1967).

Willett responds that here, unlike Wynn and James, the prosecutor’s comment improperly raised a negative inference as to Willett’s failure to call a witness whom he could compel to testify. See Wynn, supra at 134 (2). He further urges that the manner in which the question was phrased suggests the State had tried to convince Willett to waive the privilege but to no avail. There is no evidence the State requested the waiver.

The State counters that since the issue of Willett seeing a psychiatrist had been raised earlier through the testimony of a DFCS social worker, without objection, the jury would have been left with the mistaken impression that the State, which carried the burden of proof, could have but did not call Willett’s psychiatrist because the psychiatrist would have testified favorably for Willett, who had no burden of proof.

Willett did not ask for a ruling on the question’s allowability but instead sought the ultimate remedy of mistrial.

The court’s curative instruction remedied what the court apparently regarded as an improper question and justified the denial of the motions for mistrial and new trial, especially in light of the overwhelming evidence of Willett’s guilt. Willingham v. State, 212 Ga. App. 457, 458 (442 SE2d 4) (1994). Thus to the extent the question constituted error, it was harmless. “It is an old and sound rule that error to be reversible must be harmful. [Cit.]” Rutledge v. State, 152 Ga. App. 755, 756 (1) (a) (264 SE2d 244) (1979).

This ruling moots all other matters raised by Willett within this enumeration.

2. Willett contends the trial court erred in permitting the testimony of victim R. L. in that, although Willett made a timely demand for a list of witnesses pursuant to Ga. Const. Art. I, Sec. I, Par. XIV and OCGA § 17-7-110, R. L.’s proper address was not provided to him. Willett maintains that because he could not locate R. L., he had no opportunity to interview him prior to trial.

Although Willett filed a demand for a list of witnesses the prosecution might call for trial pursuant to the Constitution and statute, he did not request a list of addresses and telephone numbers of witnesses, as is required only by USCR 30.3. Willett’s failure to specifically request witness addresses pursuant to the uniform rules itself justified rejection of his motion to exclude the witness.

Secondly, the State nonetheless provided the addresses to Willett, including the last known address of R. L. The State was aware four months before trial that R. L.’s official address had changed to that of his DFCS. social worker, but there is no evidence the State intentionally withheld this information. By his own account, Willett made no effort to locate R. L. until the week before the third scheduled trial date when the district attorney was out of state. The first time Willett brought the matter to the court’s attention was immediately before jury selection. At no time did Willett ask the court for an opportunity to interview R. L. before he was to testify. Willett was permitted to review the audio and videotapes made of the child.

The purpose of the law requiring the list of witnesses is to avoid the defendant’s being confronted at trial with witnesses whom he has not had the opportunity to interview prior to trial. Bisard v. State, 158 Ga. App. 62, 63 (2) (279 SE2d 310) (1981). When, as here, the witness is an alleged victim whose name is contained in the indictment, the State has turned over virtually its entire file to defendant, and the defendant has viéwed a videotape of the child’s statement to the prosecution, the defendant is not surprised or unable to interview the witness through lack of knowledge. Garvin v. State, 144 Ga. App. 396, 399 (5) (240 SE2d 925) (1977). Accord Rutledge, supra at 756 (1) (a); State v. McBride, 258 Ga. 321 (368 SE2d 758) (1988).

Furthermore, “ ‘[wjhile the state, in most instances, should provide a defendant with the telephone numbers and addresses of its witnesses, this (is) not required.’ [Cit.]” Manning v. State, 207 Ga. App. 181, 182 (3) (427 SE2d 521) (1993). Although USCR Rule 30.3 requires a district attorney, on request, to furnish a witness’ address, “it does not require the district attorney to furnish the witness’ whereabouts, which can vary from day to day,” in order for the State to be in compliance with Rule 30.3. Sibert v. State, 259 Ga. 323, 324 (2) (380 SE2d 698) (1989). In addition, it was completely within the discretion of R. L.’s guardian whether to allow the defense counsel to interview R. L. in advance of trial. Id.

3. Willett next contends the court erred in admitting evidence of similar transactions, contrary to OCGA § 24-2-2. Evidence of the general character of an accused is inadmissible unless the accused chooses to put his character in issue. OCGA § 24-9-20. Evidence of a similar offense by a defendant is highly prejudicial, necessarily raising an inference that if he committed a particular crime in the past, he is likely to have committed the offense charged, if similar. Williams v. State, 261 Ga. 640, 641 (2) (a) (409 SE2d 649) (1991).

The State must make three affirmative showings at a hearing held pursuant to USCR 31.3 (b) before evidence of similar offenses may be admitted. First, it must be for some appropriate purpose and not to raise an improper inference that he committed the offense charged because he is a man of criminal character. Id. at 642 (2) (b); Smith v. State, 203 Ga. App. 3, 4 (416 SE2d 129) (1992). Purposes for which evidence of previous offenses may be offered include “[mjotive; intent; absence of mistake or accident; plan or scheme, of which the crime on trial is a part; and identity.” Walraven v. State, 250 Ga. 401, 408 (297 SE2d 278) (1982). When at issue, bent of mind and course of conduct are also legitimate purposes. Kilgore v. State, 251 Ga. 291, 297 (305 SE2d 82) (1983). “ In child molestation cases evidence of similar or connected sexual offenses against children is admissible to corroborate the testimony of the victim as well as to show the lustful disposition of the defendant. [Cits.]’ [Cit.]” Sullivan v. State, 162 Ga. App. 297 (291 SE2d 127) (1982); Hill v. State, 183 Ga. App. 404, 405 (1) (359 SE2d 190) (1987).

Second, the State must establish that the defendant was in fact the perpetrator of the prior offense. Williams, supra at 642 (2) (b).

Third, evidence of other offenses is admissible only if the State shows there is sufficient similarity or connection between them and the crime charged so that proof of the former tends to prove the latter. Williams, supra at 642 (2) (b). Implicit also “are the concepts that the evidence must be relevant to an issue in the case and that its probative value outweighs its prejudicial effect.” Hill, supra.

(a) The prosecutor limited the similar transaction evidence to sexual acts Willett committed on his daughter and her friend approximately 12 years earlier. Willett does not challenge the assertion that he was in fact the person who committed the prior sex offenses. He maintains that there were insufficient similarities between the prior and present offenses and an insufficient logical connection between the two. He premises this on the difference in gender of the earlier and later victims, the dissimilarities in the sexual acts, and the remoteness in time.

The Court did not err in concluding that Oller v. State, 187 Ga. App. 818 (371 SE2d 455) (1988), permits admission of the evidence. Lapse of time “does not render the evidence automatically inadmissible . . . [but] is a factor to be taken into consideration when balancing the probative value of the evidence against its potentially prejudicial impact. . . . The sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts perpetrated upon them, is of sufficient similarity to make the evidence admissible.” Id. at 820 (2); see also Kirkland v. State, 211 Ga. App. 805 (440 SE2d 542) (1994). There is no requirement that the prior offense be identical in every respect. Smith v. State, 203 Ga. App. 3, 4 (416 SE2d 129) (1992).

Here, in both instances, the earlier victims and these victims were all about eight years old and were close personal friends. By virtue of Willett’s relationship as father of his daughter and guardian of R. L., he came to meet and know the best .friend of each, and the friend became his subsequent victim. The molestation of each child began with repeated acts of genital fondling and progressed to oral and attempted anal sodomy and included finger penetration of each of the children’s rectums. The molestation of R. L, and of the friend of Willett’s daughter frequently occurred when R. L. and the friend spent the night at Willett’s house. In each incident, Willett threatened the young children if they told anyone.

The prior offenses were sufficiently similar to the crimes charged, and relevant to an issue, so that the evidence was not inadmissible as a matter of law.

(b) Willett also maintains that the State’s notice of its intention to present evidence of a similar transaction, as required by USCR 31.1 and 31.3 (B), was insufficient in that it alleged simply “child molestation” with no description of any specific act which constituted the offense or a specific date on which the events occurred, but merely an approximate range of time. Bohannon v. State, 208 Ga. App. 576, 578 (2) (a) (431 SE2d 149) (1993), and Tidwell v. State, 219 Ga. App. 233 (464 SE2d 834) (1995), indicate otherwise.

Willett argues further that OCGA § 16-3-40 grants an accused the right to assert an alibi defense, and that if the State is permitted to “vaguely” reference some prior acts, defendants will be deprived of the ability to present the defense. This argument ignores the fact that well in advance of trial, Willett was in possession of all evidence, including documents, letters, audiotapes and videotapes, which the State intended to rely on in presenting the evidence. Willett cannot validly argue that he was hampered in presenting an alibi defense.

4. On cross-examination of Gulley, Willett’s counsel began reading portions of the transcript of the tape-recording of the conversation between Gulley and Willett at the local restaurant. When counsel attempted to have Gulley confirm that Willett had made statements at the meeting declaring his innocence, the prosecutor objected to counsel reading “any self-serving declarations made by [Willett at the restaurant] unless and until he gets on the witness stand and can be cross-examined.” The court instructed Willett’s counsel to refrain from relating what Willett had said, but reminded him he could impeach Gulley with statements she made at the meeting. When Willett’s counsel expressed frustration, the court ruled, “I sustain the District Attorney’s objection that until he takes the stand, these statements by him are not admissible. Now you can recall her for cross-examination later if you want to.”

In his final enumeration, Willett claims the court erred in not allowing counsel to read the statements because those comments were necessary to lay a foundation to impeach Gulley. He argues the effect of the ruling was to compel Willett to testify before he would be permitted to impeach the State’s witness.

His characterization of the exchange is inaccurate. The statements made by Willett at the restaurant meeting were hearsay under OCGA § 24-3-1, and could not be used to impeach Gulley. OCGA § 24-9-83 provides: “A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case.” Gulley could only be impeached by her own prior statements, not by any prior statements made by Willett. If Willett’s words were to be used to contradict Gulley’s, it was necessary for Willett to testify under oath. See Bell v. State, 71 Ga. App. 430, 433 (2) (31 SE2d 109) (1944). Compare Muse v. State, 160 Ga. App. 272 (1) (287 SE2d 224) (1981) (Right to “thorough and sifting cross-examination” does not include right to ask question that requires a hearsay answer).

Further, Willett’s statements read by counsel were self-serving declarations, made while he was aware he was being tape-recorded. “ ‘(I)t is a well-established general rule that a statement of a party, whether oral or written, which is of a self-serving nature is not admissible in his favor.’ [Cit.]” Grade v. State, 189 Ga. App. 901, 903 (2) (377 SE2d 731) (1989); accord Whitehead v. State, 255 Ga. 526, 528 (5) (340 SE2d 885) (1986).

Moreover, Willett made no proffer of the excluded questions he wished to ask Gulley on cross-examination. “In order to be in a position to complain of the abridgement of the right of cross-examination, a party to a legal proceeding or his counsel must either ask the questions he desires to ask or state to the court what questions he desires to ask and then interpose timely objection to the ruling of the court denying the right to propound the questions.” Bradford v. State, 182 Ga. App. 337, 338 (5) (355 SE2d 735) (1987).

Willett was also not denied the right to call Gulley as his own witness. As in Walls v. State, 161 Ga. App. 625 (2) (288 SE2d 769) (1982), so here: “Assuming arguendo that the court improperly limited the scope of cross-examination of this witness, there was no showing what the examiner intended to show by the examination or how appellant had been harmed. Under such circumstances, we must conclude, even assuming such error, that it was highly improbable such error contributed to the conviction or otherwise harmed the appellant.”

Willett argues this matter is controlled by Childress v. State, 266 Ga. 425, 434-438 (4) (467 SE2d 865) (1996), but it is distinguishable. In Childress, the Supreme Court ruled that the trial court had correctly determined that, under OCGA § 24-9-83, before the state’s key witness could be impeached by her prior inconsistent statements, the defense would have to lay a foundation by calling to her mind with as much certainty as possible the time, place, person and circumstances attending the former statements. The Supreme Court noted that pursuant to OCGA § 24-9-82, a witness may be impeached by disproving the facts to which she testified. Alleged statements by the key witness to another witness, whether or not they were true, tended to suggest that the key witness may have witnessed the victim’s death and if that were the case, they clearly contradicted the key witness’ earlier testimony. The Supreme Court noted the statements were not hearsay, because they were not offered to prove the truth of the matter asserted, and the statements were accordingly admissible under OCGA § 24-9-82. In this case, the statements of Willett were hearsay, since they were offered to prove the truth of the matter asserted, that he was innocent. See also Horne v. State, 155 Ga. App. 851, 856 (11) (273 SE2d 193) (1980).

Decided December 5, 1996

Gregory N. Crawford, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

“Although a defendant is entitled to a thorough and sifting cross-examination of a witness, OCGA § 24-9-64, the scope of such examination is within the sound discretion of the trial judge. [Cit.] This discretion will not be disturbed by an appellate court ‘unless manifestly abused.’ ” Thomas v. Clark, 188 Ga. App. 606, 608 (4) (373 SE2d 668) (1988); Kessel v. State, 236 Ga. 373 (223 SE2d 811) (1976). As stated in Walls, supra, “we hesitate to be critical of the trial court’s exercise of discretion in limiting the scope thereof where the cross-examination was not within the traditional scope of such examination [cit.], that is to inquire into the basis for the witness’ knowledge or to show bias or otherwise diminish the value of the witness’ direct examination.”

Judgment affirmed.

Birdsong, P. J, and Blackburn, J., concur.

       U. S. Const., Amend. 5; Ga. Const., Art. I, Sec. I, Par. XVI. The practice of the State commenting on the defendant invoking his privilege against self-incrimination and refusing to testify is also prohibited by both OCGA §§ 17-7-28 and 24-9-20. See also Hicks v. State, 256 Ga. 715, 721-722 (14) (352 SE2d 762) (1987), for discussion of the relationship of the psychiatrist/patient privilege and the Fifth Amendment privilege against self-incrimination.

       Ga. Const., Art. I, Sec. I, Par. XIV provides: “Every person charged with an offense against the laws of this state . . . shall be furnished . . ., on demand, with a list of the witnesses on whose testimony such charge is founded. . . .”

       OCGA § 17-7-110, which was repealed by Ga. L. 1994, p. 1895, § 1, effective January 1, 1995, provided: “Prior to his arraignment, every person charged with a criminal offense shall be furnished with a copy of the indictment or accusation and, on demand, with a list of the witnesses on whose testimony the charge against him is founded. Without the consent of the defendant, no witness shall be permitted to testify for the state whose name does not appear on the list of witnesses as furnished to the defendant unless the prosecuting attorney shall state in his place that the evidence sought to be presented is newly discovered evidence which the state was not aware of at the time of its furnishing the defendant with a list of the witnesses.”

       “Upon request of defense counsel, the district attorney shall furnish to defense counsel as an officer of the court, in confidence, the addresses and telephone numbers of the state’s witnesses to the extent such are within the knowledge of the district attorney, unless for good cause the judge allows an exception to this requirement, in which event defense counsel shall be afforded an opportunity to interview such witnesses prior to the witness being called to testify.”