text:
    73988.
    DUNCAN v. THE STATE.
    (358 SE2d 910)
   Pope, Judge.

Walter Scott Duncan, Jr., brings this appeal from his convictions of homicide by vehicle in the first degree (OCGA § 40-6-393 (a)) and driving under the influence of alcohol (OCGA § 40-6-391 (a) (1)). Held:

1. Appellant first cites as error the trial court’s admitting into evidence the results of a blood alcohol test administered to the deceased victim. Appellant concedes the relevance of this evidence to the issues at trial. See, e.g., Biegun v. State, 206 Ga. 618 (2) (58 SE2d 149) (1950); see generally Green, Ga. Law of Evidence, § 75 (2d ed. 1983). Appellant’s objection is grounded in his assertion that the admission of this evidence denied him “the fundamental right of confronting a witness used against him,” i.e., the decedent. This argument is patently absurd. The witness presenting the subject evidence was the forensic chemist who made the chemical analysis, not the decedent from whom the blood was obtained. Appellant was afforded a thorough and sifting cross-examination of this witness, and, therefore, we find no violation of appellant’s constitutional right of confrontation. Compare Aaron v. State, 172 Ga. App. 700 (324 SE2d 564) (1984). See generally Delaware v. Fensterer, 474 U. S. _ (106 SC —, 88 LE2d 15) (1985); Green, Ga. Law of Evidence, § 224 (2d ed. 1983).

2. The second enumeration of error states that “appellant was denied equal protection under the laws as he was in a comatose state at the time of his arrest and was unable to intelligently know the rights administered to him.” That is, he “was not capable of knowingly refusing a blood test.” See OCGA § 40-5-55 (b). He contends that although he was ambulatory and vocal in the first several hours following the collision, he was “comatose” due to the injuries he had received.

We construe appellant’s argument to mean that he was lethargic but not unconscious. See Webster’s Third New Inti. Dictionary at 451. Indeed, the record discloses that appellant was informed of his implied consent rights (see OCGA §§ 40-5-55 and 40-6-392) and repeatedly over several hours refused to submit to a blood test. Appellant’s attempt to counter this evidence with testimony of his temporary amnesia for a period of 18 hours following the collision is of no avail. His failure to recall the circumstances following the collision does not contradict the State’s prima facie showing that he was in a communicative condition — not dead, unconscious or otherwise incapable of refusing the test — when informed of his rights and thereafter refused chemical testing of his blood. We thus find no basis for reversal in this enumeration of error. Cf. Rogers v. State, 163 Ga. App. 641 (1) (295 SE2d 140) (1982); Smith v. State, 143 Ga. App. 347 (1) (238 SE2d 698) (1977). See also Smith v. State, 164 Ga. App. 624 (3) (298 SE2d 587) (1982).

3. In light of our holding in Division 2, we find entirely devoid of merit appellant’s third enumeration of error that “the State violated its duty by failing to make a blood test to determine [appellant’s] blood alcohol level. ...” Moreover, we find no statutory requirement compelling the State to conduct a blood alcohol test on a person who is “dead, unconscious or otherwise in a condition rendering him incapable of refusal.” OCGA § 40-5-55 (b). Rather, such “test or tests may be administered.” (Emphasis supplied.) Id.; see Eidson v. State, 167 Ga. App. 184 (6) (305 SE2d 787) (1983).

Decided June 18, 1987.

William A. Wehunt, for appellant.

Robert E. Wilson, District Attorney, Gregory Futch, Robert W. Houman, Assistant District Attorneys, for appellee.

4. “While there is a sharp conflict in the evidence, the weight of the evidence and credibility of witnesses are questions for the triers of fact. [Cit.] There was direct testimony that appellant was under the influence of intoxicants and that it was less safe for him to drive than if he had not consumed intoxicants. The details of how the [collision] occurred were presented fully, and the jury found that appellant’s actions were the proximate cause of the [collision]. The evidence is sufficient to support that finding and we find that [any] rational trier of fact could find from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt. [Cit.]” Loveless v. State, 158 Ga. App. 535 (281 SE2d 311) (1981).

5. “Notwithstanding the holding in Division [4], appellant’s conviction for driving under the influence cannot stand. Under the circumstances of the instant case, the offense of driving under the influence merged into the crime of first degree vehicular homicide. Proof of the elements of the offense of first degree vehicular homicide necessarily requires proof of the elements of the underlying traffic violation. Thus, the underlying traffic violation is a lesser included offense of first degree vehicular homicide under OCGA § 16-1-6 and conviction of both offenses is proscribed under the provisions of OCGA § 16-1-7. [Cit.]” (Punctuation omitted.) Rogers v. State, 180 Ga. App. 310, 311-12 (348 SE2d 888) (1986); see also Brock v. State, 146 Ga. App. 78, 82 (245 SE2d 442) (1978).

Judgment affirmed in part and reversed in part.

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


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    74162.
    JOLLY v. THE STATE.
    (358 SE2d 912)
   Benham, Judge.

Appellant was indicted, in two indictments, for six counts of violating the Georgia Controlled Substances Act and for possession of a firearm by a convicted felon.

1. We find no error in the denial of appellant’s motion to suppress the evidence seized in a search of his car. The officer who conducted the search testified at the hearing on appellant’s motion to suppress that appellant gave his consent to a search of the passenger compartment of the car and that the search of the trunk was for the purpose of an inventory of contents after appellant had fled from the scene and the officer had been directed to impound the car.

We need not discuss appellant’s contention that there was no probable cause for the search of his car. A valid consent to search eliminates the need to prove probable cause for a search. Wilson v. State, 179 Ga. App. 780 (1) (347 SE2d 709) (1986). An inventory search of a car which has been impounded is authorized for the purpose of protection of the property while in custody, protection of the police from potential dangers, and protection of the police from claims of lost or stolen property. State v. Gilchrist, 174 Ga. App. 499 (1) (330 SE2d 430) (1985). Here, the police officer who searched appellant’s car swore that appellant gave consent for the search of the passenger compartment and that he was directed to have the car impounded from a parking lot after appellant had fled. “The trial court’s decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous. [Cits.]” Wilson v. State, supra. We do not find the trial court’s decision to be clearly erroneous.

2. Prior to trial, appellant requested a copy of documents relating to a complaint made by a detective against the officer who searched appellant’s car. The detective asserted that he had been told by a confidential informant that a briefcase the confidential informant left in the car had a much greater quantity of drugs and money than did the briefcase the officer asserted was recovered from appellant’s car. At trial, the prosecuting attorney cross-examined the detective regarding his complaint, and used the document to refresh the witness’ memory. Appellant contends on appeal that the withholding of those documents by the State, and the trial court’s refusal to order them produced after an in-camera inspection, requires reversal of his conviction. We disagree.

“The defendant has the burden of showing that the evidence withheld ‘so impaired his defense that he was denied a fair trial within the meaning of the Brady rule.’ [Cits.]” Williams v. State, 178 Ga. App. 581 (3) (344 SE2d 247) (1986). Our review of the record does not convince us that appellant has or could make such a showing. The witness was interrogated concerning the statements he made regarding the informant’s allegations and was permitted to make the accusations against the searching officer which appellant asserts would have been available to him if the document had been produced as he requested. We find appellant’s argument that disclosure of the documents prior to trial would have required that the charges against appellant be dismissed to be without merit. The documents did contain allegations of theft of evidence and other police misconduct, but those allegations, which were all hearsay, were contradicted by the testimony of the searching officer. In addition, the detective’s credibility was significantly undermined by his admission on cross-examination that the informant, a woman who was involved with drug trafficking and had close ties to appellant and his family, had been living with him since a time shortly after the events here but before the detective made the statement accusing the searching officer of theft, and by the detective’s admission that, pursuant to his live-in informant’s request, he had posted a $42,000 bond for appellant’s brother when he was arrested on a narcotics charge in another county. Furthermore, appellant had access to the documents at trial and the facts contained therein were or could have been brought out at that time. See Bentley v. State, 178 Ga. App. 90 (342 SE2d 25) (1986). Under all those circumstances, we hold that appellant has not shown a deprivation of a fair trial such as would require reversal of his conviction.

3. Appellant asserts on appeal that he should have been granted a directed verdict on the possession of a firearm by a convicted felon count because the State did not introduce into evidence the actual guns found in his car or testimony that they were capable of firing projectiles. See OCGA § 16-11-131. While appellant is correct about the lack of testimony specifically asserting that the guns found in his car were capable of firing projectiles, we note that the police officer who found the guns testified that they were pistols, not that they appeared to be pistols. There was, in fact, no evidence introduced to refute the officer’s testimony. Thus, the jury was authorized to find that the guns were actual working firearms and to convict appellant on that count. Head v. State, 170 Ga. App. 324 (1) (316 SE2d 791) (1984); rev’d on other grounds, 253 Ga. 429 (322 SE2d 228) (1984).

4. In appellant’s final enumeration of error, he contends that the trial court erred in permitting the State to cross-examine the detective mentioned in Division 2, supra, on the issue of his conduct in putting up a bond for appellant’s brother. “The state of a witness’s feelings towards the parties and his relationship to them may always be proved for the consideration of the jury.” OCGA § 24-9-68. “As a general rule, and particularly when the evidence is conflicting, a party may show any fact or circumstance that might affect the credit of an opposing witness. [Cit.] ‘And on cross-examination it is always permissible to sift the motives of the witness and to show, if possible, any reason other than a purpose to tell the truth which may consciously or unconsciously actuate him in his testimony.’ [Cits.]” Arnold v. State, 163 Ga. App. 10 (4) (293 SE2d 501) (1982). We find no error in the admission of the testimony of which appellant complains.

Decided June 18, 1987.

William D. Smith, for appellant.

Lewis R. Slaton, District Attorney, Chris Jensen, H. Allen Moye, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: Pope, Judge.

text:
    74177.
    WILLIAMS v. THE STATE.
    (358 SE2d 914)
   Pope, Judge.

Douglas Williams brings this appeal from his convictions of armed robbery and possession of a firearm in the commission of a felony. Held:

1. In his first enumeration of error defendant contends the trial court’s ruling that he could not proceed pro se deprived him of his Sixth Amendment right of self-representation. Faretta v. California, 422 U. S. 806 (95 SC 2525, 45 LE2d 562) (1975). Under the circumstances of the present case, we find no error.

The record shows that defendant, although represented by counsel, sought to make rather lengthy statements to the trial court almost from the beginning of the proceedings in the case sub judice. After the second outburst of this nature, the trial court asked defendant if he intended to try the case or if he intended to allow his counsel to try the case. After defendant responded that he wanted his counsel to try the case, the court cautioned the defendant concerning his disruptive behavior and advised him to speak through his attorney. However, during the opening remarks of the State, defendant again interrupted the proceedings and requested that he be allowed to leave the courtroom. The court again admonished the defendant and, after discussion between the court and the defendant, the defendant moved to represent himself with his attorney present to “coach me as [to] the matters of law.” Defendant stated that he was motivated to move for self-representation because of his belief that his counsel did not believe him and that this doubt would subconsciously hinder counsel’s efforts to represent him. After further discussion the court denied defendant’s motion and ordered defendant removed from the courtroom, advising him that he could return when he agreed to refrain from further disruptive behavior. The record shows that at the close of the first day of proceedings the defendant was invited to return to the courtroom if he could conduct himself properly. Defendant responded that he would like the trial to continue, and that he believed he could conduct himself in the proper manner.

When the trial was resumed the following morning, defendant stated through his attorney that he was displeased with his attorney’s representation of him and again sought permission to represent himself. The court again denied defendant’s request and held that the defendant could not properly represent himself. Lastly, the record shows that the following day defendant sought the court’s permission to apologize to his attorney for his earlier remarks, and that he stated that he was satisfied with the attorney’s services, and that his attorney was a “fine, fine lawyer and a fine man.”

“ ‘In determining whether or not an accused has adequately waived his right to counsel and elected to exercise his constitutional right to represent himself, the courts will apply the standard set forth in Johnson v. Zerbst, 304 U. S. 458 (58 SC 1019, 82 LE 1461) (1937). . . . Taylor v. Ricketts, 239 Ga. 501 (238 SE2d 52) (1977), applied the Johnson v. Zerbst standard that “(a) waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, supra at 464.’ ” McCook v. State, 178 Ga. App. 276 (342 SE2d 757) (1986); see also Lazenby v. State, 181 Ga. App. 854 (1) (354 SE2d 196) (1987); Bradley v. State, 135 Ga. App. 865 (1) (219 SE2d 451) (1975). From our review of the record in the present case, particularly the conduct of the accused, we are convinced that defendant’s actions in constantly disrupting the proceedings, including his repeated arguments for self-representation, were dilatory tactics calculated to disrupt the proceedings against him, accord Williams v. State, 169 Ga. App. 812 (315 SE2d 42) (1984), and hence the trial court’s refusal to allow defendant to proceed pro se does not constitute reversible error. We also find compelling defendant’s subsequent apology to the court for his earlier outbursts and his statement on the record that he was satisfied with the manner in which his attorney was representing him. “A party cannot acquiesce in the ruling of the trial court and then object on appeal. [Cit.]” Riley v. State, 180 Ga. App. 409, 411 (349 SE2d 274) (1986). Lastly, we also find that defendant’s subsequent affirmation of his belief in the ability of his counsel to provide adequate representation renders any error in the trial court’s initial ruling harmless beyond a reasonable doubt. See, e.g., Riley, supra at 411; see generally LaRue v. State, 137 Ga. App. 762 (2) (224 SE2d 837) (1976).

2. Defendant also contends that the trial court expressed or intimated an opinion concerning the guilt of the accused in violation of OCGA § 17-8-57 when it ordered that the defendant be removed from the courtroom because of his disruptive behavior and then explained defendant’s absence to the jury as follows: “The [c]ourt felt that in order to see that everyone received a fair trial and that the court dignity would not be disrupted because of the behavior of the defendant, the defendant has been ordered to be removed from the courtroom until we can make some further arrangements.”

“[A] defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. . . . [T]here are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant . . . : (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.” Illinois v. Allen, 397 U. S. 337, 343-44 (90 SC 1057, 25 LE2d 353) (1970). We are convinced by our review of the record that defendant in the present case was disorderly, disruptive and made it exceedingly difficult to carry on the trial. Accordingly, the trial court did not err in ejecting defendant from the courtroom.

Likewise, the trial court did not err in attempting to explain defendant’s absence to the jury. Pretermitting the question of whether defendant failed to preserve this issue for review by failing to move for a mistrial contemporaneously with the behavior complained of on appeal, Parrish v. State, 182 Ga. App. 247 (3) (355 SE2d 682) (1987); Keri v. State, 179 Ga. App. 664 (6) (347 SE2d 236) (1986), we have examined the court’s statement and find no merit to defendant’s contention that it constituted an expression or intimation of the court’s opinion as to the guilt of the accused. Parrish, supra at 248; Lee v. State, 166 Ga. App. 644 (3) (305 SE2d 175) (1983); Williams v. State, 164 Ga. App. 562 (2) (298 SE2d 282) (1982).

3. Defendant also contends that the trial court’s refusal to subpoena certain additional witnesses, all of whom were either incarcerated or employed at the Fulton County jail, denied his right of compulsory process. The record shows that the trial court was informed of defendant’s desire to subpoena these allegedly material witnesses on the second day of trial and that although the defendant did not request a continuance, it would have been necessary to delay the trial in order to secure the presence of these additional witnesses. Hence, we find the trial court did not err by denying the defendant’s untimely request. Eady v. State, 129 Ga. App. 656 (1) (200 SE2d 767) (1973).

4. Defendant also enumerates as error the testimony of one of the arresting officers concerning certain oral statements made by the defendant. We note, however, that contrary to defendant’s argument on appeal, the officer offered no opinion as to his belief as to which of the statements given by the defendant was the more truthful. Moreover, the record also shows that no objection to the officer’s testimony concerning the defendant’s oral statements was made at trial. It is well established that objections to evidence cannot be raised for the first time on appeal. Oyler v. State, 175 Ga. App. 486 (2) (333 SE2d 690). (1985); Skinner v. State, 155 Ga. App. 754 (272 SE2d 570) (1980). Therefore, this enumeration is without merit.

Decided June 18, 1987.

Drew Dubrin, Rise H. Weathersby, for appellant.

Lewis R. Slaton, District Attorney, H. Allen Moye, Chris Jensen, Assistant District Attorneys, for appellee.

5. Lastly, defendant argues that the trial court erred in denying his motion for mistrial based on the State’s prejudicial conduct in asking a witness if he remembered a question asked during the preliminary hearing concerning a theft by receiving charge that was later dismissed against the defendant. The trial court agreed with defendant that the State’s conduct was impermissible, but rather than granting the defendant’s motion, instructed the jury to disregard the question, which was not answered, because defendant was not on trial for that crime and further there was no evidence that the gun involved in the crime charged was stolen. “A trial court has broad discretion in ruling on a motion for a mistrial, and this court will not disturb the trial court’s ruling in the absence of a manifest abuse of discretion and a mistrial is essential to preserve a defendant’s right to a fair trial. [Cits.] Under the circumstances present here we find no abuse of discretion.” Edge v. State, 178 Ga. App. 717 (344 SE2d 517) (1986); see also Dawson v. State, 183 Ga. App. 94 (1) (357 SE2d 891) (1987).

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    74317.
    CHAPMAN v. THE STATE.
    (359 SE2d 14)
   McMurray, Presiding Judge.

Defendant appeals his conviction of forgery in the first degree. Held:

Defendant was represented at trial by appointed counsel. Following the imposition of sentence defendant, pro se, filed a timely notice of appeal, an affidavit of poverty, and motion to proceed in forma pauperis. When defendant did not file his enumerations of error and brief, this court issued an order directing defendant to file these documents. See Rule 27 (a) and Rule 14 of the Court of Appeals of the State of Georgia. Defendant responded with his motion to dismiss his appeal without prejudice, because he has no attorney, does not know anything about the law and could not represent himself in this appeal.

Decided June 18, 1987.

Tony Chapman, pro se.

Dennis C. Sanders, District Attorney, for appellee.

An indigent defendant is entitled to have counsel appointed to represent him on the first level of appellate review. Douglas v. California, 372 U. S. 353 (83 SC 814, 9 LE2d 811); Ross v. Moffitt, 417 U. S. 600 (94 SC 2437, 41 LE2d 341). The record in the case sub judice does not reflect a finding of the trial court that defendant’s indigent status has changed since trial or “that the defendant has validly chosen to proceed pro se and that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.” Cochran v. State, 253 Ga. 10, 11 (315 SE2d 653). Under these circumstances we must grant defendant’s motion to dismiss this appeal without prejudice. The case is remanded to the trial court for appointment of appellate counsel or instructions to defendant consistent with Clarke v. Zant, 247 Ga. 194 (275 SE2d 49). Upon completion of this procedure, defendant’s motion for an out of time appeal must be allowed. Cochran v. State, 253 Ga. 10, 11, supra.

Appeal dismissed and case remanded.

Sognier and Beasley, JJ., concur.


author: Banke, Presiding Judge.

text:
    74705.
    SIMPSON v. THE STATE.
    (359 SE2d 13)
   Banke, Presiding Judge.

Appointed counsel for the defendant in this criminal appeal has filed a motion to withdraw, based on his certification that he has reviewed the transcript and found “no grounds that would be the basis for a viable argument for a new trial.”

In order to withdraw from a criminal case on appeal to this court, appointed counsel must comply with the procedures set forth in Anders v. California, 386 U. S. 738 (87 SC 1396, 18 LE2d 493) (1967). Anders requires (1) the filing of a motion in the appellate court for permission to withdraw, based upon counsel’s certification that, after conscientious examination of the transcript and record, he has found the appeal to be “wholly frivolous”; (2) the submission of an accompanying brief setting forth anything of record which “might arguably support the appeal”; and (3) the delivery of a copy of the motion and brief to the indigent defendant in order to allow him to raise independently any points he chooses to raise. Id. at 744.

Decided June 18, 1987.

Wynn Pelham, for appellant.

Thomas C. Lawler III, District Attorney, Thomas A. Devlin, Jr., Assistant District Attorney, for appellee.

We are aware that the first and second of these requirements are somewhat contradictory, in that a listing of arguable grounds for an appeal would not be entirely consistent with a certification by counsel that the appeal is “wholly frivolous.” However, counsel should, at a minimum, endeavor to provide the court with a statement of the facts of the case, identifying the offense of which the defendant was convicted and summarizing the evidence presented at trial. Also, if any significant rulings were made by the court in connection with the proceedings, these should be identified. Since counsel in the present case has neither submitted such a brief nor certified that his client was served with a copy of his request to withdraw, we conclude that the requirements of Anders have not been substantially fulfilled; and the request to withdraw is accordingly denied.

Motion denied.

Carley and Benham, JJ., concur.


author: Banke, Presiding Judge. Benham, Judge,

text:
    73866.
    HOGUE v. STONE MOUNTAIN MEMORIAL ASSOCIATION.
    (358 SE2d 852)
   Banke, Presiding Judge.

Bonnie Hogue sued the Stone Mountain Memorial Association to recover for personal injuries she allegedly sustained when she “stepped off an abrupt, unseen ledge” while walking to a “laser show” on the grounds of Stone Mountain Park. She appeals the grant of Stone Mountain’s motion for summary judgment, contending that the trial court erred in concluding as a matter of law that her claim was barred by the Recreational Property Act, OCGA § 51-3-20 et seq. For purposes of this appeal, Mrs. Hogue concedes that her claim is predicated entirely on simple negligence and that, as a consequence, if the trial court was correct in concluding that the Recreational Property Act was applicable, it was also correct in granting Stone Mountain’s motion for summary judgment.

In essence, the Recreational Property Act specifies that “an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes” may not be held liable for personal injuries resulting from unsafe or defective conditions existing on the premises, unless such injuries resulted from “willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity. ...” OCGA §§ 51-3-23; 51-3-25 (1). See also OCGA § 51-3-22. “ ‘Recreational purpose,’ includes, but is not limited to, any of the following or any combination thereof: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter sports, and viewing or enjoying historical, archeological, scenic, or scientific sites.” OCGA § 51-3-21 (4).

In reliance on Stone Mountain Memorial Assn. v. Herrington, 225 Ga. 746, 747 (171 SE2d 521) (1969), and Brannon v. Stone Mountain Memorial Assn., 165 Ga. App. 120 (299 SE2d 176) (1983), the trial court determined that a fee which the appellant and her husband had been required to pay upon their initial arrival at the park was not an admission fee or a charge for the recreational use of the park property itself but rather a fee for the privilege of bringing their motor vehicle into the park. The appellant contends that Herrington and Brannon are distinguishable from the present case in that, at the time the trial court ruled on the summary judgment motion in the present case, Stone Mountain had not yet submitted any evidence warranting such a characterization of the fee in question. Additionally, the appellant contends that, regardless of whether an entry fee was or was not charged, a jury would be entitled to find the Recreational Property Act inapplicable based on the “business interests” test set forth in Cedeno v. Lockwood, Inc., 250 Ga. 799 (301 SE2d 265) (1983).

The appellant and her husband had driven to the park from their home in North Carolina in the company of their youngest daughter for the purpose of camping there with an older daughter and her family, who were en route to Texas from Florida. They paid an initial fee of $4.00 upon entering the park, in return for which they received a vehicle sticker which permitted them to exit and re-enter the park without additional charge during their stay there. They also paid a camping fee upon registering at the campground; and, during the course of their 2-day stay at the park, they purchased food, souvenirs, and tickets to such park attractions as the cable car ride, boat ride, and automobile museum. On the evening of what was to be the second and last night of their stay, the family left the park temporarily to dine at a nearby pizza restaurant. Upon their return, they set out on foot from a parking lot to attend the laser show. In the darkness, the appellant stepped off the edge of a concrete slab traversing her pathway and fell, severely fracturing her ankle. Held:

1. We must disagree with the appellant’s contention that there was no evidence of record at the time the trial court ruled on Stone Mountain’s motion for summary judgment to warrant a finding that the initial $4.00 fee paid by the appellant and her husband constituted a motor vehicle fee rather than a fee for the recreational use of the park itself. It is apparent from the deposition testimony of the appellant and her husband that in return for this fee they received a vehicle sticker permitting them to leave and re-enter the park without additional charge. It is further apparent from their testimony that, whereas they had been accompanied only by their younger daughter at the time they paid the fee, various additional family members were subsequently permitted entry into the park as occupants of the vehicle during the course of the weekend, without additional charge.

In the absence of contrary evidence, such testimony leads inescapably to the conclusion that, as was the case in Herrington and Brannon, supra, what was purchased by the initial $4.00 fee was a permit for the use of a vehicle in the park. It follows that the trial court was authorized to conclude as a matter of law that this fee did not constitute a charge for the recreational use of the parkland itself. The additional fees paid by the appellant and her husband for purchases of such items as a camping permit, food, souvenirs, and tickets to park rides and attractions similarly cannot be considered charges for the recreational use of the parkland itself, it appearing that such general activities as swimming and sightseeing were available to and engaged in by the family without charge.

2. The appellant further contends that even if she was not charged an admission fee the Recreational Property Act may nevertheless be considered inapplicable pursuant to the “business interests” test set forth in Cedeno v. Lockwood, Inc., supra. In that case, the Supreme Court held that an area of buildings, streets, sidewalks, and alleyways located in the City of Atlanta and known as “Underground Atlanta” could not be considered recreational property within the contemplation of the Act because it was made available to the public not for recreational use but as a commercial attraction to promote the sale of food, merchandise, and services by the various business establishments located there. Stone Mountain Park, on the other hand, is operated by a non-profit, public entity created by statute (OCGA § 12-3-191 et seq.) for the limited purpose of acquiring and administering Stone Mountain and the property adjacent thereto “as a Confederate memorial and public recreational area. ...” OCGA § 12-3-191 (6). We must accordingly deem the park premises to be a public recreation area, notwithstanding the fact that substantial revenues may be derived from the sale of special permits, concessions, and tickets to rides and other attractions located on the premises. Since the appellant’s alleged injuries resulted from her general recreational usage of the park premises, for which no fee was charged, rather than from the use of any of the facilities, rides, or attractions for which a fee was charged, we hold that the trial court was correct in concluding as a matter of law that the provisions of the Recreational Property Act operated to prevent her from recovering from the Stone Mountain Memorial Association based on allegations of simple negligence.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Carley, Sognier, Pope, and Beasley, JJ., concur. Benham, J., dissents.

Benham, Judge,

dissenting.

I dissent from the opinion of the majority, which holds the Recreational Property Act (“RPA”) (OCGA § 51-3-20 et seq.) applicable to the facts of this case. I focus on the “business interest” exception to the applicability of the RPA, as enunciated in Cedeno v. Lockwood, 250 Ga. 799 (2) (301 SE2d 265) (1983). In that case, the Supreme Court held that if the public were invited upon land in furtherance of the owner’s business purposes, the RPA “will not shield the owner from liability even though the public receives some recreation as a side benefit.” Id. at 802.

I do not quarrel with the fact that appellee was created to administer Stone Mountain Park as a public recreation area. See OCGA § 12-3-191 (6). However, the association was empowered by the same legislation to operate the “project,” defined as the “accommodations, utilities, facilities, services, and equipment necessary or convenient, and all property . . . , including franchises and easements, in . . . operating Stone Mountain . . . and property adjacent thereto . . .” Thus, there is a business aspect within the operation of the recreation area, a fact the majority acknowledges with its reference to the “substantial revenues [that] may be derived from the sale of special permits, concessions, and tickets to rides and other attractions located on the premises.” Majority opinion at p. 380. I object to the majority’s failure to take into consideration the business aspect of the Stone Mountain Memorial Association. Appellant presented evidence that she and her family expended funds within the park to camp, to enjoy various amusement rides, to shop, to eat, and to enter various museums. It is my opinion that appellant’s testimony shows that, while there is a recreational benefit to be derived from a visit to Stone Mountain Park, the public is also invited to further the business interests of appellee through the sales of food, merchandise, and services. In light of the evidence of the furtherance of appellee’s business interests, I do not believe summary judgment in favor of appellee, based upon the applicability of the RPA, was warranted, and therefore must respectfully dissent.

Decided May 29, 1987

Rehearing denied June 19, 1987

William H. Smith, Jr., for appellant.

Michael J. Bowers, Attorney General, Daniel M. Formby, J. Robert Coleman, Senior Assistant Attorneys General, Angeline Mathis, for appellee.


author: Beasley, Judge.

text:
    74062.
    HAMMITT v. THE STATE.
    (359 SE2d 4)
   Beasley, Judge.

Ernest Hammitt and Roland Wooten, who were in the used car business together, were indicted and convicted of theft by deception, OCGA §§ 16-8-3 (a) and (b) (1), in obtaining eight used motor vehicles from a dealer through the use of three checks, one of which was returned for insufficient funds and two of which were returned because the account was closed.

Roland’s nephew James, who was an alcoholic and had cancer when the transactions took place, was also indicted but died before trial. James had actually signed the checks, which were written on an account he opened two weeks earlier with $200, for a used car business he ostensibly set up ten weeks earlier. In James’ deposition, taken two months after the transactions and introduced at trial, he testified that he did not remember what he did with the vehicles except that he sold one to Hammitt. He could not write, could barely read, and had been unemployed for two years. He did not test-drive the vehicles; only Hammitt did.

Hammitt and Roland Wooten had purchased a number of vehicles from the victim prior to the instances on trial, all for cash. This time the negotiations involved James and his checks, which totaled $16,200. Upon inquiry, Hammitt assured the used car manager with whom they had dealt on the previous occasions that the checks were good.

1. The first enumeration of error challenges admission of an indictment and plea by Hammitt for theft of three vehicles by deception, five years earlier, in which the court accepted a plea agreement and sentenced Hammitt to probation. In those instances in south Georgia, Hammitt had accomplished the “purchases” by presenting the dealers with sight drafts drawn against his account at the same north Georgia bank at which James’ account was subsequently opened. This evidence was offered to prove that Hammitt was involved in a criminal scheme here, knew how to accomplish it, and participated in achieving it. His defense was that he was, in effect, an innocent bystander.

The assertion now made is that the crimes were not sufficiently similar and were too remote in time, both grounds having been raised below. After hearing argument and comparing the similarities and dissimilarities as well as considering the other issues related to admissibility (identity, relevance, and whether probative value outweighed prejudice), the court denied Hammitt’s motion in limine. In submitting the case to the jury, the court gave a comprehensive and cautionary charge on the limited use to which the jury could put the prior conviction in its deliberation on the issues.

We hold that the evidence was not inadmissible as a matter of law, in that it met the prerequisites which appellant claims were not present. He is correct that “the independent crimes must be similar or logically connected to the crime for which the accused is on trial. State v. Johnson, 246 Ga. 654 (272 SE2d 321) (1980).” Williams v. State, 251 Ga. 749, 783 (4) (312 SE2d 40) (1983). Otherwise there is a violation of OCGA § 24-2-2 and/or OCGA § 24-9-20. “(A) plan, scheme, device, design, etc. means a peculiar or distinctive method of committing a crime which, if employed at another time by an accused, would tend to show he was the one [or here, one of the ones] who employed it this time.” Nicholson v. State, 125 Ga. App. 24, 26 (3) (186 SE2d 287) (1971).

Here the two series of transactions were sufficiently similar so that “proof of the one tends to establish the other.” Bacon v. State, 209 Ga. 261 (71 SE2d 615) (1952). In both instances, Hammitt was involved in the obtaining of used motor vehicles from dealers by inducing them to part with the vehicles for worthless negotiable instruments. The dissimilarities pointed out by appellant, i.e., bank sight drafts there instead of checks as here, appellant rather than someone else uttering the instrument, and a sole enterprise earlier as contrasted to a three-man transaction here, are not of sufficient significance or strength to compel exclusion. Nor does the fact that the guilty plea related to thefts of vehicles by deception in the market place five years earlier, weighed alone or together with all the other factors, render the indictment and plea inadmissible. Campbell v. State, 234 Ga. 130, 132 (214 SE2d 656) (1975).

2. The remaining enumerations focus on the sufficiency of the evidence to support a conviction. In addition to what is related here, we have reviewed the record and hold that, contrary to appellant’s urging, the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) was met.

Judgment affirmed.

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

Decided June 4, 1987

Rehearing denied June 19, 1987

Harry M. Moseley, for appellant.

Rafe Banks III, District Attorney, for appellee.


text:
    74294.
    COOK et al. v. ARRINGTON.
    (358 SE2d 869)
   Beasley, Judge.

This is an appeal by plaintiffs, Mr. and Mrs. Cook, from the grant of summary judgment to defendant storeowner in their suit for personal injuries and loss of consortium allegedly sustained as a result of Mrs. Cook’s slip and fall just inside the door of defendant’s store. The complaint maintained that defendant was negligent in having left clear liquid (later specified as rainwater) on the floor so as to put the safety of its customers in peril, and for not having taken precautions to alleviate the dangerous situation or to warn customers of the hazard.

“ ‘A summary judgment should not be rendered unless there is no genuine issue as to any material fact and unless the moving party is entitled to a judgment as a matter of law. [OCGA § 9-11-56]. The burden is upon the movant to affirmatively show that there is no genuine issue and that he is entitled to a summary judgment. The party opposing the motion for a summary judgment is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists. The evidence must be construed most favorably to the opposing party, and the trial. court must give him the benefit of all favorable inferences that may be drawn from the evidence. [Cits.]’ [Cit.]” Norton v. Ga. R. Bank & Trust, 253 Ga. 596, 603 (322 SE2d 870) (1984).

The evidence, thus viewed, shows: it was raining the morning of Mrs. Cook’s fall and had stopped approximately one hour prior to her arrival at the store. She had entered her car for the trip immediately from the kitchen door adjacent to the carport, so at no time was she exposed to the weather before or upon entry to her car. She drove directly to the Piggly Wiggly and parked in the store lot. There was a puddle out front. Business was only moderate that day so there were few people in and out and no carts had been taken out. When Mrs. Cook entered the store there was no foot mat either outside or inside the entrance. Once inside, as she approached the area where the buggies were stored, her feet slipped out from under her and she fell; she had the sensation that she was slipping on something liquid on the tile floor. She did not notice any liquid on the floor prior to or after the fall. None of the store employees saw any liquid on the floor before or after the mishap, not even the manager who had gone by the site of the fall about twenty minutes before it happened. There had been no mopping that day.

After being removed from the floor, Cook discovered that the outseam of her right pants leg as well as the undergarments beneath were wet. Her clothes were not wet in any other area and the liquid on her pants leg and undergarments was odorless and colorless and seemed to be water. She had no idea where the liquid came from. After the incident, store personnel mopped the area as a precaution even though they did not see any liquid on the floor.

“[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).

“[Liability for injuries resulting from an invitee’s slip and fall on a proprietor’s premises is determined by the relative ‘knowledge’ possessed by the proprietor and the invitee of the condition or hazard which resulted in the injury. ‘ “The basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition.” ’ [Cit.]” Telligman v. Monumental Properties, 161 Ga. App. 13, 14 (2) (288 SE2d 846) (1982). Therefore, the legal issue before us is whether the evidence demonstrates as a matter of law that defendant did not have superior knowledge to that of Mrs. Cook of the condition or hazard which resulted in the slip and fall.

“It is common knowledge that when people enter any building in rainy conditions, moisture is tracked in and the inside of the door is likely to be wet; it is a matter of common knowledge that some water will normally be present where shoppers pass during rainy weather. [Cit.] It is not the duty of persons in control of such buildings to keep a large force of moppers to remove the rain as fast as it collects. [Cit.] The duty owed to such invitees is one of ordinary care, or to protect against an unreasonable risk of harm. [Cit.] The risk of harm imposed by some accumulation of water on the floor of business premises during rainy days is not unusual or unreasonable in itself, but is one to which all who go out on a rainy day may be exposed and which all may expect or anticipate. [Cits.]” Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44, 45 (1) (332 SE2d 304) (1985).

Decided June 4, 1987

Rehearing denied June 19, 1987

William G. Scrantom III, for appellants.

David S. Currie, John Austin, for appellee.

Here, it had stopped raining approximately one hour prior to the mishap. No store employee saw water or any liquid substance on the floor area near the fall prior to it nor after it. The fall occurred not immediately in the entrance but close by, near the buggy storage area; the buggies had not been taken outside the store, thus discounting rain-wet buggies as the source of the liquid. Cook never saw any liquid on the floor although she was looking where she was going. The whole basis for her contention that there was a foreign substance on the store floor was the fact of her slip and fall plus the prior rain plus the wet spot on her clothes.

Even assuming the inference that she slipped on rainwater, there is simply nothing in the evidence to show superior knowledge on the part of the defendant of a hazard which could give rise to a duty to remove it or warn customers, so that failure to do so could be found to constitute a failure to exercise the duty of ordinary care in keeping the premises safe, which befalls the one who is in control of the premises. OCGA § 51-3-1. Alterman Foods v. Ligon, supra at 622. See also Gibson v. Consolidated Credit Corp., 110 Ga. App. 170 (138 SE2d 77) (1964). In this state, the proprietor is not an insurer of its customers’ safety. Colbert, supra at 46 (1).

Appellants make much of the store’s failure to mop; however, inasmuch as the rain had stopped for some time, store traffic was light, and no moisture was observed on the floor, the decision not to mop would not raise a question of the store’s lack of diligence toward making the premises safe. No facts here gave rise to a duty to mop.

Judgment affirmed.

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


text:
    73879.
    GRIFFIN v. THE STATE.
    (358 SE2d 917)
   Pope, Judge.

Michael Griffin brings this appeal from his conviction and sentence of armed robbery. Held:

1. Defendant’s first enumeration cites as error the denial of his motion in limine which allowed the introduction of evidence of a written scientific report pertaining to certain fingerprints. Defendant made a timely request for copies of all scientific reports pursuant to OCGA § 17-7-211, but a copy of the written report of a fingerprint match between latent prints taken at the crime scene and the inked fingerprint card made by defendant was not provided to defense counsel until five days before trial. The prosecutor explained that he had been unaware of the scheduled trial date, but upon discovery thereof he had requested the examining officer to prepare an official written report on the fingerprint match and had delivered a copy of same to defense counsel the same day. These circumstances disclose no violation of defendant’s discovery rights under the statute. Daniel v. State, 180 Ga. App. 179 (2) (348 SE2d 720) (1986); see also Prater v. State, 171 Ga. App. 122 (1) (318 SE2d 816) (1984).

Defendant also contends that the latent fingerprint card (which had been prepared at the crime scene over a year prior to trial) was discoverable under OCGA § 17-7-211 and thus should have been excluded from evidence. In addition to the latent prints, this card contained information concerning the date, time and type of crime, the location of the prints, the name of the officer who lifted the prints and the name of the officer who matched the prints. The common element in “scientific reports” discoverable under the statute “appears to be that each includes the examiner’s findings based on scientific analysis or his or her opinion.” State v. Madigan, 249 Ga. 571, 574 fn. 2 (292 SE2d 406) (1982); Williams v. State, 251 Ga. 749 (3c) (312 SE2d 40) (1983). The official report contained such findings, and the examining officer testified that he used the latent fingerprint card in the process of making those findings, comparing and ultimately matching the prints with those of defendant. It is thus clear that the latent fingerprint card itself did not contain the conclusions of the officer, “but instead had to be interpreted by him in order to attain significance.” Id. at 754. We thus conclude that the latent fingerprint card was not a “scientific report” discoverable under OCGA § 17-7-211. Accord Thompson v. State, 175 Ga. App. 645 (4) (334 SE2d 312) (1985); see also Thomas v. State, 176 Ga. App. 53 (9) (335 SE2d 135) (1985); Johnson v. State, 174 Ga. App. 579 (330 SE2d 791) (1985), and cits.

2. Our review of the record in this case discloses no abuse of discretion in the trial court’s denial of defendant’s pretrial motion for a change of venue. Ford v. State, 255 Ga. 81 (5) (335 SE2d 567) (1985), and cits.; Blanks v. State, 254 Ga. 420 (1) (330 SE2d 575) (1985), and cits, cert. den., 89 LE2d 733, reh. den., 90 LE2d 681 (1986).

3. Defendant’s final enumeration of error challenges the denial of his motion for continuance based upon the prosecution’s alleged failure to furnish, upon timely demand therefor, an accurate list of witnesses within a reasonable time prior to trial. See OCGA § 17-7-110. The record shows that six days prior to trial the prosecution provided defendant with a “revised” list of nine witnesses it intended to call at trial. Defendant nonetheless moved for a continuance “because the list was not provided within the time provided by law and any previous list that the State says it had provided contained sixty or seventy some-odd witnesses . . . half ... or two-thirds of which don’t have a thing to do with this case. ...” (The initial witness list apparently related in large part to an earlier-tried murder case against defendant.) On the basis of this motion the trial court requested a showing of prejudice from defense counsel. No response was forthcoming, and the trial court overruled the motion.

Decided June 19, 1987.

Walter W. Ballew III, for appellant.

Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, for appellee.

“The purpose of OCGA § 17-7-110 is to insure that an accused is not confronted at trial with testimony against him from witnesses whom he has not had an opportunity to interview prior to trial. [Cit.] [Defendant] did not claim to be unfairly surprised by [the prosecution’s revised witness list] and did not allege prejudice of any kind from the fact that the notification was [six days prior to trial.] Under such circumstances any defect in the failure of the prosecution to [timely provide a] written list of witnesses is harmless. [Cit.]” Logan v. State, 170 Ga. App. 809, 810 (318 SE2d 516) (1984); Favors v. State, 234 Ga. 80 (1) (214 SE2d 645) (1975); see Rutledge v. State, 152 Ga. App. 755 (la) (264 SE2d 244) (1979). Compare Barrentine v. State, 136 Ga. App. 802 (5, 6) (222 SE2d 103) (1975), holding that the denial of a continuance was error where defense counsel was served with a new and additional list of witnesses the day before trial and stated in his place that he had not had time to interview them and determine exactly what the evidence was against his client.

Judgment affirmed.

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


text:
    74275.
    RUSH v. FOOD GIANT, INC.
    (358 SE2d 919)
   Pope, Judge.

Appellant/plaintiff Ray R. Rush brought suit against appellee/de-fendant Food Giant seeking damages for injuries he received when he slipped and fell in the checkout lane of one of Food Giant’s stores. The complaint alleged that appellant slipped and fell because appel-lee negligently allowed some fresh grapes to remain on the floor in the area of the checkout counter, and that the negligent condition was known to appellee or had existed for a sufficient length of time so that appellee should have known of it. Appellee moved for summary judgment, which was granted by the trial court, and this judgment is appealed.

1. Appellant contends that the evidence presented genuine issues of material fact which should have been determined by a jury. The evidence showed that on July 4,1984 at about 6:00 p.m. appellant and his wife went to appellee’s store, where they shopped frequently, to buy groceries. He remained outside while she went in to shop. After Mrs. Rush shopped she waited five to ten minutes in the checkout line at aisle 1, then went to the door and called Mr. Rush inside to give her extra money and help her bag the groceries. Mr. Rush came in and the two of them waited in line about five minutes more while the groceries were checked out. Mr. Rush then went to aisle 2, the adjacent checkout lane which was not in operation, to reach the area where the groceries were in order to bag them. While walking through the empty aisle, he slipped and fell on some grapes that were lying loose on the floor, sustaining injuries.

Appellant bases his allegations of Food Giant’s liability on its failure to provide any mats, rugs or other slip-proof coverings on the floor of the checkout aisle; the ability of the employee working at the next checkout counter who waited on Mrs. Rush to see the grapes on the floor of the adjoining lane; and the store policy of requiring its customers to bag their own groceries, resulting in the accumulation of debris on the floor in the checkout area and necessitating increased maintenance to insure its cleanliness. He contends that notwithstanding Food Giant’s safety policy and emphasis on the proper maintenance of the checkout aisles, the evidence showed that during the several hours prior to his fall, its employees failed to properly inspect or maintain this area, and that thus there was a genuine issue of material fact as to whether Food Giant had, through its employees, prior constructive knowledge of the dangerous condition and failed to guard against it.

Appellant insists that the evidence established that Jennifer Green, the Food Giant employee who waited on Mrs. Rush in aisle 1, was only six feet away from aisle 2 and could have seen the grapes on the floor from where she stood. However, Ms. Green denied seeing anything on the floor until after appellant fell. She also testified by deposition that there were “more than two” other customers in line, which would have blocked her view of aisle 2; and that she was not facing aisle 2, but facing her customers. Mrs. Rush also swore by affidavit that during the ten minutes preceding the incident, “customers were moving in a line through this checkout area.” Ms. Green’s testimony was undisputed that she had swept the floor of all the aisles in the checkout area several times during the day, possibly within 15 minutes to half an hour before appellant fell. Neither appellant nor his wife were in or near aisle 2 for more than ten minutes at most, and their testimony did not establish any length of time the grapes were on the floor.

Thus, we agree with the finding of fact made by the trial court that there was no evidence that Jennifer Green saw or could have seen the grapes on the floor of aisle 2. Photographs presented by appellant in support of this contention failed to depict conditions as they existed at the time of the accident in that they showed no customers in the checkout area of aisle 1, and it was undisputed that at least Mrs. Rush was in line at the time her husband fell. Appellant’s reconstruction of the time sequence in attempting to show that the grapes were on the floor for a minimum of five to ten minutes prior to his fall was merely speculative, and was also contradicted by his previous deposition testimony that he did not know how long they had been there. His testimony that his wife was in line for a minimum of ten minutes failed to account for the time in which she went to the door to call him in to help her. His estimation that he stood in line with her for five minutes was disputed by Ms. Green’s testimony that when Mrs. Rush called him appellant “came in and he was fussing and cussing and he came through the checkout, and he was walking real fast. I think he was going in his pocket getting out some money and trying to give it to her, and he slipped. ...” Ms. Green also stated that she could smell on appellant’s breath that he had been drinking. There was no evidence at all submitted to show the lack of or necessity for slip-proof floor coverings.

In Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980), the Supreme Court analyzed the litigation history of “slip and fall” cases in order to determine when the grant of summary judgment was proper, stating: “In cases involving foreign substances the customer does not ordinarily know if the substance which caused him to fall has been placed on the floor through negligence attributable to the owner or through that of someone other than the owner. While the owner or occupier of land is liable to invitees for his failure to exercise ordinary care in keeping the premises safe, before an owner can be held liable for the slippery conditions of his floors, produced by the presence of a foreign substance thereon, it is necessary that the proof should show that he was aware of the substance or would have known of its presence had he exercised reasonable care. Thus it is said that only when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. Normally a proprietor is permitted a reasonable time to exercise care in inspecting the premises and maintaining them in a safe condition. However, the proprietor is under no duty to continuously patrol the premises in absence of facts showing that the premises are unusually dangerous. Knowledge on the part of the proprietor that there is a foreign substance on the floor that could cause patrons to slip and fall may be either actual or constructive. In some cases the proprietor may be held to have constructive knowledge if the plaintiff shows that an employee of the proprietor was in the immediate area of the dangerous condition and could have easily seen the substance and removed the hazard.” (Citations and punctuation omitted.)

In the instant case we have found no evidence imputing superior knowledge of the grapes on the floor to Food Giant. As previously discussed, Ms. Green was not in a position to see the grapes on the floor any more easily than appellant or his wife. Not only had she inspected and cleaned the area within perhaps 15 to 30 minutes prior to the accident, she further testified that the store was less crowded than usual because of the holiday, and thus there was less likelihood of debris falling to the floor while being bagged. Nor was there any evidence that as a result of “erratic” bagging by customers, loose items tended to frequently end up on the floor in the checkout area, as alleged by appellant. “[N]ot only must the plaintiff show that the defendant had knowledge of the presence of the foreign substance, but the plaintiff must also show that he was without knowledge of its presence. The customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all of his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” (Citations and punctuation omitted.) Alterman Foods v. Ligon, supra at 623.

“Thus in order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Id. This appellant failed to do. He “can derive no help from [his] assertion that a store employee ‘could have seen the [grapes] on the floor’ as this is merely a conclusion as to what other persons did which is without probative value. [Cits.]” McGrew v. S. S. Kresge Co., 140 Ga. App. 149, 151 (230 SE2d 119) (1976). Moreover, this and other conclusions stated in appellant’s affidavit as to how long the grapes had been on the floor contradicted his deposition testimony that he had no idea how long they had been there and had not paid much attention to what was going on while he was in the store. Clearly appellant failed to establish any constructive knowledge on the part of Food Giant by probative evidence of a period of time the alleged dangerous condition had been allowed to exist, or even how the grapes came to be on the floor. See Dillon v. Grand Union Co., 167 Ga. App. 381 (1) (306 SE2d 670) (1983).

“[T]here never has been a rule in this state that liability can be shown by nothing more than the fact that the defendant’s employee was in the immediate area of the hazardous substance. In every case, the rule that states that proposition also requires a finding that the defendant’s employee had ‘an opportunity to discover and remove the hazard,’ which can only be shown, and in fact in the early cases was shown, by evidence that the hazard existed for a length of time sufficient for the defendant to discover the hazard and remove it. . . The proprietor’s liability in all these cases is based upon the proprietor’s failure to inspect and make safe the premises where the dangerous condition has existed long enough for him to discover it (or for it to be unreasonable not to know of the hazard); or stated otherwise, upon the superior knowledge of the proprietor, actual or constructive. [Cits.] Proprietors are allowed a reasonable time to discover and remove dangerous conditions [cit.], and unless there is a reason why the proprietor should have discovered it, he should not be charged with constructive knowledge.” Mitchell v. Food Giant, 176 Ga. App. 705, 709 (337 SE2d 353) (1985).

In this case, as in Mitchell, supra, appellee’s employee Ms. Green was in an area adjacent to the aisle where appellant fell, separated by a counter and at least one customer, and not in the aisle where the grapés were on the floor. There was no evidence to show that she or any other of Food Giant’s employees had the opportunity to see or remove the grapes before appellant fell on them. Under the evidence presented the grapes could have fallen to the floor mere seconds before appellant fell. Neither appellant nor his wife, who were closer to the grapes than Ms. Green, observed them before he fell. Thus, there is an absence of evidence from which a jury could find constructive superior knowledge by which to hold Food Giant liable for negligence.

2. Appellant contends that the trial court erred in granting Food Giant’s motion for summary judgment prior to ruling on his motion to compel discovery, which was filed prior to the filing of the motion for summary judgment. “The record before us does not indicate that the [appellant] moved to continue the hearing on the motion for summary judgment pending a ruling on [his] motion to compel or that [he] otherwise objected to the court’s failure to rule on the motion to compel prior to ruling on the motion for summary judgment. Consequently, [appellant has] waived the right to assert the court’s failure to rule on the motion to compel as error on appeal. [Cits.]” Sammor v. Mayor &c. of Savannah, 176 Ga. App. 176, 177 (335 SE2d 434) (1985).

Decided June 19, 1987.

Edward C. Stone, Quinton S. King, for appellant.

Donald R. Andersen, Deborah A. Finnerty, for appellee.

Judgment affirmed.

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


text:
    73735.
    RODERICK et al. v. INTERNATIONAL INDEMNITY COMPANY.
    (358 SE2d 923)
   Pope, Judge.

This appeal is taken from the grant of summary judgment to plaintifF insurance company in a declaratory judgment action. We affirm the lower court’s order holding that the family exclusion clause of the liability policy is enforceable and that the policy provides no liability coverage for the defendant, the named insured’s injured minor stepchild, who was allegedly injured while he was a passenger in an automobile owned and operated by the named insured. (The defendant claimant is joined in this appeal by his father.)

1. This declaratory judgment action was brought in response to a tort claim filed by defendants against the named insured. The action, as originally pled, stated a claim in negligence. After plaintiff filed its motion for summary judgment in the declaratory judgment action, defendants sought to amend the tort action to add a claim for intentional, wilful and malicious acts. Apparently, this was an attempt to save the claim from the defense of family immunity. Defendants take exception to the statement, contained within the order granting summary judgment, that the amendment was ineffective and that the tort claim remained an action in negligence only, to which the doctrine of family immunity from liability for negligent torts would apply.

The record before us contains no indication whether the separate underlying tort action (which is not now before us on appeal) was stayed from further proceedings pending the outcome of the declaratory judgment action. In any event, it is inappropriate for the court, ruling in a declaratory judgment action, to render a ruling or finding as to the sufficiency of the pleadings or a defense in a separate underlying tort action. Accordingly, we overrule that portion of the lower court’s order which attempts to make a finding or ruling as to the sufficiency of the amendment to the complaint filed in the separate action or the application of the family immunity doctrine to the facts of that case. Nevertheless, the statement in the lower court’s order is harmless error as to the grant of summary judgment in the declaratory judgment action. Except as noted in Division 2 of this opinion, the family immunity doctrine is irrelevant to issues in the declaratory judgment action. Plaintiff is entitled to summary judgment not on the basis of the family immunity doctrine but because the family exclusion clause of the policy properly excludes coverage for defendants’ claim.

2. Defendants’ attack on the Georgia doctrine of family tort immunity fails. The doctrine of family immunity from liability for negligent torts has been reaffirmed in recent decisions. E.g., GEICO v. Dickey, 255 Ga. 661 (340 SE2d 595) (1986); Clabough v. Rachwal, 176 Ga. App. 212 (335 SE2d 648) (1985).

The family exclusion clause of the policy at issue in this case excludes coverage for “bodily injury to you or your spouse or any resident family member of your household.” The definition of “family member” contained within the policy includes a stepchild who is resident in the insured’s household. So long as a family exclusion clause “dovetails” with the Georgia doctrine of family tort immunity, it is enforceable. Only “if the exclusion were broader than the tort immunity of this state [would] the exclusion ... be against public policy.” GEICO v. Dickey, supra at 663. The exclusion contained in the policy at issue in this case is not contrary to the public policy of this state and is enforceable. See Harbin v. Sams, 171 Ga. App. 263 (319 SE2d 99) (1984).

3. Defendants’ attempt to bootstrap the coverage provided under the uninsured motorist provision of the policy must also fail. The policy provides coverage for damages recoverable from “the owner or driver of an uninsured motor vehicle.” “Uninsured motor vehicle” is defined by the policy as one which is not covered by an insurance policy or bond providing at least minimal coverage as required by Georgia law. It is undisputed that the automobile in which the insured and her stepchild were traveling at the time of the accident which forms the basis for defendants’ claim was an insured vehicle. Therefore, defendants’ claim is not covered by the uninsured motorist provision of the policy. Even the Georgia statute requiring uninsured motorist coverage to be offered to an insured specifically excludes the insured’s own vehicle from the definition of an uninsured motor vehicle. OCGA § 33-7-11 (b) (1) (D). “This . . . exclusion is valid and in accordance with, or compatible with, our Georgia Uninsured Motorist Statute.” Lauer v. Bodner, 137 Ga. App. 851, 853 (225 SE2d 69) (1976). The uninsured motorist coverage of the policy at issue in this case does not cover the claim of one who is excluded from liability coverage under the family exclusion clause of the policy. Cf. Lauer v. Bodner, supra; Barras v. State Farm Mut. Auto. Ins. Co., 118 Ga. App. 348 (163 SE2d 759) (1968).

Decided June 22, 1987.

Robert E. Dunn, for appellant.

James D. Hollingsworth, Michael L. Wetzel, for appellee.

Judgment affirmed in part and reversed in part.

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


text:
    73800.
    HUBBARD v. THE STATE.
    (360 SE2d 78)
    Decided June 22, 1987.
    Rufus C. Hubbard, pro se.

      Richard A. Malone, District Attorney, William H. McClain, Assistant District Attorney, for appellee.
   Benham, Judge.

On July 16, 1986, Hubbard filed a pro se notice of appeal from his conviction and sentence on June 25, 1986, for theft by taking and recidivism. On November 10, 1986, he was ordered by this court to file an enumeration of errors and brief pursuant to Rules 27 (a) and 14 of the Court of Appeals of Georgia no later than 4:30 p.m. on November 17, 1986, and was duly advised that failure to comply with Rule 14 in criminal cases might result in dismissal of the appeal.

Although appellant failed to comply with this court’s order, we have made every effort to enter a decision on the merits of his case, in accordance with DeBroux v. State, 176 Ga. App. 81 (335 SE2d 170) (1985); and Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985). We have reviewed the record on appeal and find no error.

Judgment affirmed.

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


text:
    73863.
    ST. PAUL FIRE & MARINE INSURANCE COMPANY v. SNITZER et al.
    (358 SE2d 925)
   Beasley, Judge.

Joseph and Dorothy Snitzer’s house and property were insured by St. Paul under a homeowner policy described as an “all-in-1.” On April 5, 1985, the Snitzers’ property was heavily damaged by a severe wind storm. Damages totalling over $67,000 included about $33,000 in debris removal.

St. Paul did not contest the damages to the real and personal property but contended that the debris removal was limited to a maximum of $1,000 by a policy endorsement. The Snitzers rejected St. Paul’s tender of less than the full amount and brought suit on the contract, seeking recovery of $34,053.25 for damages to their real and personal property, $33,677.50 for debris removal, and penalty and attorney fees under OCGA § 33-4-6 for bad faith.

After both sides moved for summary judgment, the court granted the Snitzers’ motion as to coverage and denied St. Paul’s motion, leaving the question as to bad faith for jury determination.

The policy as originally issued contained two separate provisions on different pages. One stated: “We cover your trees, shrubs, plants or lawns but the most we will pay for all of them is $5,000.” The other provided: “We’ll also pay for debris removal, reasonable repairs to protect covered property from further damage, and any fire department service charges.” The policy apparently was amended, retaining the same language but moving the two provisions to other pages. On November 29, 1981 an endorsement was issued which amended “coverage for trees, shrubs, plants or lawns on page 5 of your policy.” It stated: “We cover your trees, shrubs, plants, or lawns. The most we will pay for any one of them is $250 including clean-up expense. The most we will pay for all trees, shrubs, plants, or lawns in any one loss if $1,000 including clean-up expense.”

The endorsement must have had reference to the earlier policy since in it the “trees” provision was on page 5; in the later policy it was on page 10. St. Paul submitted another even later version of the policy in which the endorsement language was incorporated in the body of the policy. The Snitzers denied ever receiving that policy.

This court when considering an all-risk policy which provided for debris removal defined debris as “waste material resulting from the destruction of some article.” Lexington Ins. Co. v. Ryder System, 142 Ga. App. 36, 37 (2) (234 SE2d 839) (1977). Webster’s defines it as: “scattered fragments; remains; rubbish, especially that caused by destruction.” (Webster’s New Twentieth Century Dictionary, 2nd ed. (1964)). Here the debris consisted of “trees, soil and shrubs from adjacent properties.”

St. Paul urges that because of the composition of the alleged debris it should be considered within the terms of the endorsement limiting recovery to $1,000 total for trees, etc., including clean-up expense. The debris removal portion of the policy has no limit, so the Snitzers contend that it controls. The question is whether the removal of the trees, shrubs, and soil in this instance is merely a clean-up expense with its commensurate $1,000 limit or debris removal with unlimited coverage.

1. “We begin with the proposition that an insurance policy, even when ambiguous, is to be construed by the court, and no jury question is presented unless an ambiguity remains after application of applicable rules of construction.” Alley v. Great American Ins. Co., 160 Ga. App. 597, 599 (287 SE2d 613) (1981).

In making an assessment we consider the pertinent legal principles, which the trial court also applied. Because insurance policies are contracts of adhesion, drawn by the legal draftsman of the insurer, they are to be construed as reasonably understood by an insured. James v. Penn. Gen. Ins. Co., 167 Ga. App. 427, 431 (306 SE2d 422) (1983). “Exceptions, limitations and exclusions to insuring agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms.” U. S. Fidelity &c. Co. v. Gillis, 164 Ga. App. 278, 281 (296 SE2d 253) (1982). In brief, although the cardinal rule of construction is to ascertain the intention of the parties, if the language is susceptible to two different constructions the one most favorable to the insured will be adopted. North British &c. Ins. Co. v. Mercer, 211 Ga. 161 (84 SE2d 570) (1954).

Here the endorsement announces coverage of “your” (the insured’s) trees and provides $250 payment for “any one of them.” The reference to the $1,000 maximum for “all” trees, etc. is a limitation of all “your” trees, not every tree or the portion thereof which might constitute debris. The material removed from the Snitzers’ property was undisputedly primarily from trees, shrubs and soil not originally a part of their property. Hence, the endorsement language would not apply, but the debris removal would.

St. Paul urges that the endorsement language was clearly intended to expressly limit the debris removal provision. However, the last policy they submitted belies that conclusion because it inserted the endorsement provision in the contract but still placed it separately and without reference to the debris removal portion.

2. The question of bad faith is for the jury unless it can be said that as a matter of law there was a reasonable defense which vindicates the insurer’s good faith. Colonial Life &c. Ins. Co. v. McClain, 243 Ga. 263, 265 (253 SE2d 745) (1979). Considering the issues in the case, we cannot conclude that St. Paul’s defense was reasonable as a matter of law. See Stegall v. Guardian Life Ins. Co., 171 Ga. App. 576, 577 (2) (320 SE2d 575) (1984).

Judgment affirmed.

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

Decided June 22, 1987.

James H. Fisher II, for appellant.

Richard P. Decker, F. Edwin Hallman, Jr., for appellees.


text:
    73889.
    In re N. S. M.
    (359 SE2d 185)
   Beasley, Judge.

Petitioners below, the paternal grandparents of N. S. M., now age five, appeal the juvenile court’s denial of their petition to terminate the parental rights of appellee, the child’s mother, pursuant to OCGA § 15-11-81 (a), (b) (4) (B) (ii), and (b) (4) (C) (i) and (ii).

Petitioners have had legal custody, consented to by the mother, since her 1982 divorce from petitioners’ son. He is in prison. The mother had no specific visitation and support rights or obligations in the original divorce, but in 1983 obtained visitation rights and was ordered to pay support. In April 1986 she filed a contempt action concerning visitation. The court did not hold petitioners in contempt but did direct the mother to pay support through the county receiver’s office and modified her visitation rights.

1. The petition in this case was filed in May 1986 and the hearing was conducted on July 30. Thus, the provisions of new Article 2 of Chapter 11 of Title 15, OCGA, effective July 1, 1986, are applicable. In re L. L. B., 256 Ga. 768 (353 SE2d 507) (1987). Because the order denying termination does not make the specific findings required by OCGA §§ 15-11-91 and 15-11-33, this case is remanded to the trial court for these findings. No further ruling need be made with regard to enumeration number 3.

2. One of the grounds asserted by petitioners for terminating the mother’s rights was that she had three DUI charges or convictions so as to prompt termination based on OCGA § 15-11-81 (b) (4) (B) (ii). In an effort to obtain evidence concerning the latest charge of April 8, 1985, then still untried, plus information concerning her “alcohol problem,” petitioners subpoenaed her counsel in the DUI matter, Mr. Nash. Nash obtained counsel and filed a motion to quash the subpoena, the granting of which is petitioners’ first enumeration of error. The subpoena to Nash, pursuant to OCGA § 15-11-22, required his appearance at trial and directed that he bring with him “[a]ny and all documents and records maintained by [him] on [the mother] for any and all reasons whatsoever.”

Nash filed an affidavit stating that he was in possession of no knowledge or information concerning the termination proceeding except that which he had obtained by virtue of his employment as the mother’s attorney, and that to comply with the subpoena would place him in violation of the attorney/client privilege in OCGA § 24-9-21 (2). He also stated that he had a telephone conversation with petitioners’ counsel prior to the subpoena’s issuance in which Nash told their counsel he would not reveal any privileged information. During the hearing, the mother specifically asserted the privilege.

When asked during the hearing what he expected to be able to obtain from the attorney, counsel for petitioners stated that he wished to question him concerning the fact of his employment for the 1985 DUI and the degree of intoxication that the mother registered on that occasion. Counsel for the mother stipulated that she had been charged with three DUIs over the past five years. She testified that she had two convictions and was awaiting trial on the 1985 incident. The tickets for the 1983 charge, which reflected the results of the breathalyzer test, and the 1985 charge were tendered by petitioners’ counsel. The results of the 1985 blood alcohol test were also tendered by petitioners’ counsel.

The trial court relied on OCGA §§ 24-9-24 and 24-9-25, which explain the attorney-client privilege and describe when an attorney may testify for or against a client.

This is not a situation where a party seeks to obtain unprivileged documents or information from an attorney during discovery after having attempted to obtain them from the party, nor is it a situation where the party is alleged to have waived the privilege. See Green, Ga. Law of Evidence (2nd ed.), § 153, & Chapter XIV, concerning the privilege/competency question; In re C. M., 179 Ga. App. 508, 510 (347 SE2d 328) (1986); Ray v. Dept. of Human Resources, 155 Ga. App. 81, 84 (1) (270 SE2d 303) (1980), concerning discovery in juvenile cases.

Since all that petitioners sought was obtained through other sources or was available through other witnesses not used, such as the agency administering the blood alcohol test, the question is whether the trial court abused its discretion in not allowing petitioners to call Nash to the stand. See Klemme Cattle Co. v. Westwind Cattle Co., 156 Ga. App. 353, 355 (1) (274 SE2d 738) (1980); Classic Restorations v. Bean, 155 Ga. App. 694 (1) (272 SE2d 557) (1980). The evidence sought was at best cumulative and at worst would have invaded the privilege afforded to the attorney/client relationship, since there is no showing that Nash possessed any information other than that received from his client or which petitioners did not have or could not independently acquire. There was no error in disallowing Nash’s testimony.

The only authority cited by petitioners in support of the original subpoena and on appeal was Cranford v. Cranford, 120 Ga. App. 470 (170 SE2d 844) (1969), and Atlantic Coast Line R. Co. v. Daugherty, 111 Ga. App. 144 (141 SE2d 112) (1965). These cases are not on point because they dealt with discovery; here we have a subpoena for trial.

These cases do not require a different result than we reach. Atlantic Coast Line decided whether, under the predecessor act to OCGA § 9-11-34 (Request for Production), an attorney’s work product, i.e., statements of third party witnesses taken by a non-attorney in the course of an accident investigation, were discoverable. The court held that the seeker of the statements had not proven the “good cause” required before a court will allow one to even attempt to obtain work product of an attorney.

Cranford upheld a contempt citation involving a divorce suit where a licensed psychologist refused to produce, pursuant to a notice during discovery and a court order entered after hearing and consideration of the claim of privilege, cancelled checks, office registers, and other documents that would reveal his patients’ names. It is cited by petitioners for the proposition that a trial court may conduct an in camera review of claimed privileged information before ruling on its relevance or discoverability. While a trial court may do so, there was no request for it and the court’s not doing so sua sponte was not error. See Tribble v. State, 248 Ga. 274, 275 (280 SE2d 352) (1981).

3. Finally, petitioners appeal the court’s imposition on their attorney of the fees incurred by the witness-attorney, in having the subpoena quashed. The motion seeking the attorney fees was made by the witness, not a party to the suit. Neither that motion nor the court’s order granting the fees refer to any authority allowing such a penalty. On appeal, appellee defends the award to the witness and relies on OCGA §§ 9-11-37 and 9-15-14.

This was not a discovery dispute, but a trial subpoena, and therefore, the provisions of OCGA § 9-11-37 are inapplicable. Nor does OCGA § 9-15-14 apply, inasmuch as the fees were ordered on the motion of a witness, not a party, and they were awarded to that witness, not a party. Neither is there any provision of the juvenile code, (OCGA Title 15, Chapter 11) which authorizes the imposition of attorney fees in this type case. Although we agree with the trial court that the subpoena and the attendant costs and inconvenience to the witness were totally unjustified, there is no authority for such a sanction in these circumstances and it must be stricken.

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

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

Decided June 22, 1987.

J. Guy Sharpe, Jr., for appellant.

Robert W. Shurtz, Darryl A. Hunnings, Carol M. Nevits, for ap-pellee.

       The witness has also filed a brief, relying on the same code sections. Although he denominates himself an “appellee,” he is not a party and thus we treat his brief as that of amicus curiae. Court of Appeals Rule 13.


author: Sognier, Judge.

text:
    74075, 74076.
    JONES v. DAVIS (two cases).
    (359 SE2d 187)
   Sognier, Judge.

Evelyn McClellan Davis brought suit both individually and as administratrix of the estate of Robert McClellan against Clifford Jones, d/b/a/ Dairy Queen and Kwik Shop, and Carey Jones for the wrongful death of her son, Robert. The jury returned a verdict in favor of Davis for the full value of Robert’s life, medical and funeral expenses, and exemplary damages. The trial court denied the motions for new trial made by Clifford Jones and Carey Jones. Their individual appeals have been consolidated in this opinion.

Appellant Carey Jones (“Carey”) was employed as a store clerk at the convenience store owned by his father, appellant Clifford Jones (“Clifford”), at the time appellee’s deceased entered the store. The evidence at trial differed as to the events that followed; however, the jury was authorized to believe that as the result of an argument over change for a $100 bill appellee’s deceased had tendered as payment for a purchase, Carey shot appellee’s deceased four times in the chest. Appellee’s deceased died shortly thereafter.

1. Both appellants contend the trial court erred by instructing the jury on the doctrine of res ipsa loquitur. Proper objection was made to the charge and in response, the trial court agreed the charge was not applicable but that counsel for Clifford had argued it continually, even in closing. The trial judge then stated “[i]t’s for that reason that I gave the charge and the Court will not back off of that.” In its order on appellants’ motions for new trial, the trial court acknowledged it had misunderstood counsel’s references to “respondeat superior” to be references to “res ipsa loquitur.” The trial court found any error in the charge to be harmless, though, since res ipsa loquitur when applied authorizes only an inference of ordinary negligence and the jury verdict awarding appellee exemplary damages necessarily embraced a jury finding that the shooting was the result of either a wilful and intentional act or, alternatively, a needless and wanton act.

Initially, we do not agree with appellee’s argument that appellants waived any objection to the res ipsa loquitur charge. Appellants’ objection to this charge fully apprised the trial court of the error committed thereby affording the trial judge an opportunity to correct the error. See generally Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 16 (195 SE2d 417) (1973). Since “the statutory requirement is only that he shall state ‘distinctly the matter to which he objects and the grounds of his objection’ [OCGA § 5-5-24 (a)],” A-l Bonding Svc. v. Hunter, 125 Ga. App. 173, 179 (4b) (186 SE2d 566) (1971), aff’d, 229 Ga. 104 (189 SE2d 392) (1972), appellants’ counsel fulfilled that requirement by making a proper and specific objection and being informed that the trial court would “not back off” its ruling; thus, appellants’ counsel’s failure to object further to the charge will not be considered a waiver pursuant to OCGA § 5-5-24 (a).

The law in Georgia is clear that it is error to charge the doctrine of res ipsa loquitur where, as here, the cause of the incident is subject to proof by direct evidence since it “is a doctrine of necessity to be applied, where otherwise appropriate, in cases where there is no evidence of consequence showing negligence on the part of the defendant.” Southern Bell Tel. &c. Co. v. LaRoche, 173 Ga. App. 298, 299 (1) (325 SE2d 908) (1985). See also Minkovitz v. Fine, 67 Ga. App. 176 (19 SE2d 561) (1942). Legal error being a compound of both error and injury, see Harrison v. Hester, 160 Ga. 865 (129 SE 528) (1925), appellee argues that the error in charging the jury on the doctrine of res ipsa loquitur failed to injure appellants and thus constituted harmless error. We note that “when an error in the charge of the court is shown to exist, it is presumed to be prejudicial and harmful, and this court will so hold unless it appears from the entire record that the error is harmless.” Barton v. State, 79 Ga. App. 380, 387 (2) (53 SE2d 707) (1949).

In support of the argument that the charge on res ipsa loquitur was harmless error, appellee reiterates the trial court’s ground for denying appellants’ motions for new trial, namely, that the award of exemplary damages in favor of appellee established that any error in charging res ipsa loquitur had no effect on the jury. Although the trial court’s charge contained an instruction discussing ordinary negligence, the res ipsa loquitur charge did not specify what type of negligence it encompassed. The “punitive” damages charge did not refer to negligence at all, stating merely that “[p]unitive, that is, aggravated damages, may be authorized when the circumstances of the wrong are such as to show an entire want of care and indifference to consequences.” Thus, it is apparent neither the “punitive” damages charge nor any other charge given by the trial court would have clarified to the jury the distinction between the ordinary negligence of res ipsa loquitur and the wilful or wanton negligence necessary for exemplary damages. Mindful of the fact that charges are deemed to be given to jurors of ordinary capacity and understanding, we cannot in view of the closeness of the issues in this case consider the error harmless. See Valdosta Housing Auth. v. Finnessee, 160 Ga. App. 552, 554 (3) (287 SE2d 569) (1981). The trial court’s denial of appellants’ motions for new trial is reversed and this case is remanded to the trial court for a new trial. See generally Williamson v. Lucas, 166 Ga. App. 403, 406 (6) (304 SE2d 412) (1983).

2. (a) We find no error in the trial court’s admission of two police reports regarding the shooting incident. “Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it. [Cits.]” Gordon v. Gordon, 133 Ga. App. 520, 522 (211 SE2d 374) (1974). The reports were admitted as business records and the trial court cautioned the jury in its charge that the reports were admitted only as such a record, not as proof of the contents. See Stubbs v. Daughtry, 115 Ga. App. 22, 24 (1) (153 SE2d 633) (1967); Calhoun v. Chappell, 117 Ga. App. 865, 867 (162 SE2d 300) (1968). See also Getz Sues. v. Perloe, 173 Ga. App. 532, 537 (5) (327 SE2d 761) (1985).

(b) Clifford contends the trial court erred by charging the jury on various principal-agent theories of law. We agree with Clifford that to the extent certain principal-agent theories of law are applicable solely to contract law, they should not be charged to the jury upon retrial of this case. See generally Seibers v. Morris, 226 Ga. 813, 816-817 (177 SE2d 705) (1970).

3. Clifford enumerates as error the trial court’s charge on premises liability, taken from High Co. v. Holler, 42 Ga. App. 657 (157 SE 209) (1930), asserting that the charge, though a correct statement of the law, was incomplete due to the absence of language concerning defenses preventing such liability and that appellee expressly abandoned this theory of liability during the trial of the case. Since on retrial the alleged incompleteness may not be reproduced in the jury charge and no abandonment of this theory of liability may occur, we need not address this enumeration. Likewise, any error by the trial court in twice charging the exemplary damages instruction will not be likely to recur. Finally, both appellants enumerate as error the jury’s award of exemplary damages. Exemplary damages are not available in a wrongful death claim but may be awarded in connection with the decedent’s injuries, pain and suffering as sought by the administrator of the estate. Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 340-341 (7) (319 SE2d 470) (1984). We note that the jury in the case sub judice did not find for appellee as administratrix of Robert’s estate on the claim made for pain and suffering. However, we need not reach the issue whether the jury’s award for medical and funeral expenses under OCGA § 51-4-5 (b) supports the award for exemplary damages here since this issue may not present itself upon retrial of this case.

Judgments reversed.

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

Decided June 22, 1987.

Stevan A. Miller, Michael C. Garrett, Janet George Blocher, for appellants.

George W. Fryhofer, George W. Fryhofer III, for appellee.